Islamic Law of Inheritance – Ilm-ul-Faraiz

Introduction

Inheritance is one of the modes of acquiring property. The law prescribes the procedure for the
devolution of property amongst the heirs. In pre-Islamic Arabia, the customary rules governed the
practice of Inheritance which was based on the principle of comradeship in arms. This customary
practice used to exclude females and minors and instead favoured parental male descent, adoption and
sworn alliance or clientage. After the dawn of Islam, this discriminatory customary practice of pagan
Arabs was reformed. This marked a significant departure from the previous systems. Females for the
first time in history were recognized as competent to inherit. Besides them widow, widower, parents
and ascendants were given the right to inherit in presence of male agnatic descendants.

General Principles governing Inheritance

According to Islamic Law of Inheritance, before an estate devolves amongst the heirs, certain
fundamental requirements are to be complied with:

a) Funeral expenses of the deceased are to be taken care of.

b) Debts, if any, of the deceased are to be paid

c) Bequests, if any, made by the deceased are to be enforced.

After fulfilling all outstanding liabilities as stated above, the remaining part of the property is distributed
amongst the legal heirs. In pre-Islamic Arabia, a man had an unqualified power of disposing of his
property by will. Islam gradually reformed the system by laying down specific rules of distribution of
property. The right of will was recognized but qualified. A Muslim was allowed to make a will subject to
the following qualifications:

a) A will cannot be made in favour of a would be heir;

b) It cannot exceed more than one-third of the total property.

In case, a will is made in favour of a would be heir, or if it exceeds, more than one- third, the consent of
future heirs becomes necessary.

Amongst Shia’s, the rule is somewhat different and a testator can make a will in favour of a legal heir so
long it does not exceed one- third of his total estate. Such a legacy is valid without the consent of the
other heirs, but where it exceeds one- third it is not valid without the consent of all the heirs. Such
consent may be given either before or after the death of testator. Under Sunni law ratification must
always be after the death, an assent before death being of no effect.

Competence to inherit

Every heir is entitled to inherit. The distribution is effected amongst the blood relations and marital
relations. The claimants must establish the cause of inheritance and there should be no impediment to
inheritance, which is based upon near relationship, and there should be no impediment to inheritance
e.g., the existence of a preferable heir or otherwise.
Rule of Exclusion

There are two kinds of exclusion viz; perfect or absolute exclusion and imperfect or partial exclusion.

Perfect or absolute exclusion

There are two classes of heirs, one amongst them is not excluded at all and the other class is such that
under certain circumstances they inherit and under certain circumstances they are excluded. The heirs
which are not excluded at all are six in number: Father, Mother, Widow, Widower, daughter and Son.
These are called primary heirs. All the other heirs, each of whom may be excluded by some one else. For
example brother is an heir he may be excluded by the son or by the father. Brother can inherit only if
the deceased has left no son or father.

Females as heirs

The women in pre-Islamic Arabia were not entitled to inherit and the reason for their exclusion was that
they were treated as second class citizens, because they did not used to take part in war. Islam
recognized their right of inheritance and under Islamic law they inherit in different capacities. She
inherits as Mother, widow, daughter, sister, grand-daughter, grandmother, aunt and female collaterals.

Doctrine of representation

The doctrine of representation which is not recognized in India means that a person cannot succeed as a
representative of someone who has already predeceased the deceased. For Example ‘A’ dies leaving
behind son ‘B’ and predeceased son’s son ‘C’. Only the Son ‘B’ will inherit. ‘C’ being the son of
predeceased son cannot represent his father and, therefore, is excluded from inheritance. The heir is to
be ascertained at the time of the death of the deceased, and a person can’t succeed as representative of
someone who had already predeceased the deceased.

Nature of property

Islamic law of inheritance makes no distinction between movable or immovable property, joint or
separate property, realty or personalty.

Widower and widow (Husband and wife )

The surviving spouse always inherits and is never excluded. The husband or the wife is the only
heir by affinity who is made a primary heir by the Quran. In pre-Islamic times they were entirely
excluded. A man in his capacity as a surviving spouse was not entitled to any share from the property of
his deceased wife. A woman on the other hand as a surviving spouse was not only disentitled to any
share from the property of her deceased husband but was a part of inherited goods, a matter between
men, the men of the husband’s clan or her own relations.

The widower is entitled to one-fourth (the minimum) or one half (the maximum) share from the
net estate of the deceased wife. He gets one half if there are no children or no child of son how low so
ever.