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FAMILY LAW ASSIGNMENT
TOPIC- Hanafi Law of Inheritance-Shia schools
SUBMITTED TO: PROF. DEVI PRABHA
SUBMITTED BY: SATYAM KUMAR
ROLL NO. – 20191BAL0068
SECTION- 04
TABLE OF CONTENTS
1. Acknowledgement
2. Synopsis
3. Introduction
• Objectives of the study
• Scopeofthe study
• Significance of the study
4. Literature Review
5. Research Methodology
• Research design & Source of data
• Research questions
• Tools and techniques
6. CONCLUSION
7. CASE LAW’S
ACKNOWLEDGEMENT
“I would like to express my special thanks of gratitude to my Professors Devi Prabha who
gave me the opportunity to do this project on the topic “Hanafi Law of Inheritance-Shia
schools” as I did my research for this project & I was enlightened with a great amount of
knowledge and information and I’m deeply nourished with a great amount of insight in this
process.”
Thanking you!!!
Satyam Kumar(20191BAL0068)
SYNOPSIS
We are aware that we are in constitutional civilized society, but we have no uniform civil
code regarding Law of Inheritance to all the citizen of India. Every religion practiced in India
is governed by its respective personal laws – which includes property rights as well. In our
religious societies, inheritance represents the most important method of transferring wealth
from one generation to the next. Islam is the religion in which every aspect of life is being
discussed and managed no matter what’s the issue in the life of human beings. We can say
that Islam is the complete code of life. Religion Islam organizes a Muslim’s life by issuing
many rules and laws which guarantee an honourable and happy life for each Muslim. Even a
cursory examination of the laws governing inheritance in most Islamic countries discloses a
set of complicated rules that are difficult to understand and, consequently, apply. The courts
are kept busy trying to untangle the morass, and their rulings hardly satisfy the litigants,
usually siblings, who invariably feel that they were unfairly treated by the deceased father or
mother. The law related to inheritance derives its principles from four principal sources of
Islamic law. They are the Holy Quran, the Sunna i.e. the practice of the Prophet, the Ijma
i.e. the consensus of the learned men of a community on a particular point of law and the
Qiya i.e. the analogical deductions of what holds just and right and in line with the principal
laid down by the God.
INTRODUCTION
Inheritance is defined as the process of devolving property upon the death of its owner.
According to Morgan, it means the distribution of deceased’s property among the cognate
kindred. It is also believed to be the transfer of an article from one person to another which
involves the transfer of wealth, knowledge, honour or dignity. The law related to inheritance
derives its principles from four principal sources of Islamic law. They are the Holy Quran, the
Sunna i.e. the practice of the Prophet, the Ijma i.e. the consensus of the learned men of a
community on a particular point of law and the Qiya i.e. the analogical deductions of what
holds just and right and in line with the principal laid down by the God. Muslim law recognises
two types of heirs -1.Sharers ‘the ones who are entitled to certain share in the deceased’s property’ & 2.
Residuary ‘the ones who would take up the share in the property that is left over after the sharers have
taken their part’.
Whereas succession is defined as the substitute of a living person for the deceased person in
a relation to all rights and duties which the latter had. Some also see succession as the right of
a person to succeed into title, throne and properties and what-not of any person dead or alive.
In essence, succession is seen as the right and transmission of the rights and obligation of the
deceased to his heirs that takes place only after the death of the property’s owner. By mere
contemplating on the two definitions above, its crystal clear that both inheritance and
succession centred around the transfer of properties at the expiration of someone’s authority
due to death. It also connotes the availability and certification of the dead person, the property
and the new owner. Succession under Muslim Law in the absence of a will, i.e., non-
testamentary succession is governed by the Muslim Personal Law1.
1 Muslim Personal Law (Shariat) Application Act, 1937
OBJECTIVE OF THE STUDY
 The Hanafi and Shia schools
 Types of Heirs
 Distribution of Property under Muslim Law
 The General Principles of Inheritance under Muslim Law
 Women Rights of Inheritance in Islam
 Rights of Widows in Islam
 Grounds of Disqualifications
 The Hanafi and Shia schools
The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules
introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable property.
This property can be movable or immovable and ancestral or self-acquired. However, Muslims
in the country do not have codified property rights and are broadly governed by either of the
two schools (sects) of the Muslim personal law – the Hanafi (Sunni)and the Shia. While the
Hanafi school (Hanafi school of Sunni Sect) recognises only 2 those relatives as heirs whose
relation to the deceased is through a male. This includes son's daughter, son's son and father's
mother. The Shia school(sect), on the other hand, favours no such discrimination. This means
that heirs, who are related to the deceased through a female are also accepted. The estate of a
deceased Muslim devolves on his heirs separately and the heirs are entitled to hold the property
as tenants-in-common, each having a definite share in the property. The Muslim Law of
Succession is a combination of four sources i.e. the Holy Quran, Sunna (practice of prophet),
Ijma, (Consensus of the learned men of the community over the decision over a particular
subject matter), Qiya (deductions based on analogy on what is right and just in accordance with
good principles). Muslim law recognises two types of heirs, firstly, sharers, the ones who are
entitled to certain share in the deceased’s property and secondly, residuary, the ones who would
take up the share in the property that is left over after the sharers have taken their part. Under
the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend
on the kind of property involved. In cases of Non testamentary succession, the Muslim Personal
Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who
dies testate i.e. one who has created his will before death, the inheritance is governed under the
relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. Needless to say, the
rules set out in the Quran are not applied correctly if at all. In fact, what is applied is the hadeeth
and Sunnah which are invariably the sources of the interpretations of the schools of
jurisprudence. The Islamic scholars, as usual, ignored the Quran, misconstrued the Prophet's
words and misinterpreted his intent thereby rob-bing the inheritance laws of their flexibility
and, not least, of their equability.
 TYPES OF HEIRS
Heirs referred to as primary heirs are always entitled to a share of the inheritance, they are
never totally excluded. These primary heirs consist of the spouse relict, both parents, the son
and the daughter. But under certain circumstances, other heirs can also inherit as residuaries,
namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister,
consanguine sister and mother. Those who inherit are usually confined to three groups:
1. Quota-heirs (dhawu al-farā), usually include daughters, parents, grandparents, husband and
wife/ wives, brothers and sisters, and others. This group usually take a designated share or
quota of the estates.
2. Members of the asaba (residuaries), usually a combination of male (and sometimes female)
relatives that inherit as residuaries after the shares of the Quota-heirs is distributed.
3. In case a person leaves no direct relatives and there is no u aba, his property ʿ ṣ escheats to
the state treasury (Bayt al-mal)
There are mainly two types of heirs under the Muslim Law of Inheritance which is
Sharers and Reliquaries. Sharers are entitled to specific fractions of the property of the
deceased whereas Reliquaries, as the name suggests, are distributed any residual share in
the property.
Sharers
The Sharers are 12 in number and are as follows:
1. Husband,
2. Wife
3. Daughter
4. Daughter of a son (or son's son or son's son and so on)
5. Father
6. Paternal Grandfather
7. Mother
8. Grandmother on the male line
9. Full sister
10. Consanguine sister
11. Uterine sister
12. Uterine brother.
The share taken by each sharer will vary in certain conditions.
For instance,
➢ a wife takes ¼th of share in a case where the couple is without lineal descendants, and a
one-eighth share otherwise.
➢ A husband (in the case of succession to the wife's estate) takes a half share in a case
where the couple is without lineal descendants, and a one-fourth share otherwise.
➢ A sole daughter takes a half share. Where the deceased has left behind more than one
daughter, all daughters jointly take two-thirds.
➢ If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be
sharers and become reliquaries instead, with the residue being so distributed as to ensure that
each son gets double of what each daughter gets.
 The General Principles of Inheritance under Muslim Law
 Nature of the Heritable Property
Heritable property is that property which is available to the legal heirs for inheritance. After
the death of a Muslim, his properties are utilised for the payment of funeral expenses, debts
and the legacies i.e. will, if any. After these payments, the remaining property is called
heritable property. Under Muslim law, every kind of property may be a heritable property.
For purposes of inheritance, Muslim law does not make any distinction between corpus and
usufruct or, between movable and immovable, or, corporeal and incorporeal property. Under
English law, there is some difference in the inheritance of movable and immovable property.
But, under Muslim law there is no such distinction; any property, which was in the ownership
of the deceased at the moment of his death, may be the subject-matter of inheritance.
Shia Law: Under the Shia law, a childless widow is entitled to get her share (1/4) in the
inheritance only from the movable property left by her deceased husband.
 Joint or Ancestral Property2
The concept of a joint family or of coparcenaries property (as is recognised under Hindu law)
is not known to Muslims. Whenever a Muslim die, his properties devolve on his heirs in
definite share of which each heir becomes an absolute owner. Subsequently, upon the death
of such heir, his properties are again inherited by his legal heirs, and this process continues.
There is no provision for any ancestral or joint-family property. Accordingly, under Muslim
law of inheritance, no distinction has been made between self-acquired and ancestral
property. All properties, whether acquired by a Muslim himself or inherited by his ancestors,
are regarded as an individual property and, may be inherited by his legal heirs.
 No Birth right under the Muslim Inheritance Law
Islamic Law follows the principle of ‘nemo est haeres viventis’ i.e. nobody can become an
heir to a living person. This means under Muslim law, the legal right to inheritance of
property arises only upon the death of the deceased and not upon the birth of the child.
Another point to note is that an heir can only gain a share in the property of the deceased if
the heir outlives the deceased. However, if the heir apparent dies before the deceased then he
or she will gain no right to inheritance and thereby their family members cannot take up their
share in place of them.
Under the Hindu law, a coparcenary gains interest or right in the property of the deceased the
moment such a coparcenary is born. This right to property by birth is called Janmaswatvavad.
But because there is no concept of a joint family under Muslim law, there is no concept of the
right to property by birth either.
 Doctrine of Representation
The Doctrine of Representation is a well-recognized doctrine under the Roman, English and
Hindu laws of Inheritance. According to the Doctrine of Representation, the son of a
predeceased son represents his father for the purpose of inheritance. The Muslim Laws of
Inheritance does not recognize the Doctrine of Representation because, under Muslim Law,
the nearer excludes the remoter.
2 In judicial verdict,itwas held that the jointsystem family or jointproperty is unknown to Muslimlawand
therefore the right, titleand interest in the land held by the person stands extinguished and stands vested in
other persons.........In Abdul Raheem vs.Land Acquisition Officer,AIR1989 AP 318.
In simple words, if there are two heirs who claim the inheritance for a common ancestor, the
heir who is neared to the deceased will exclude the remoter.
The justification is given by the Muslim Jurists for denying the right of representation on the
ground that a person has an inchoate right to the propriety of his ancestor until the death of
the ancestor. Subsequently, they argue that there can be no claim through a deceased person
in whom no right could have been vested by any possibility.
 Female’s Right of Inheritance
Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs
include also the females then, male and female heirs inherit the properties simultaneously.
Males have no preferential right of inheritance over the females, but normally the share of a
male is double the share of a female. In other words, although there is no difference between
male and female heir in so far as their respective rights of inheritance is concerned but
generally the quantum of property inherited by a female heir is half of the property given to a
male of equal status (degree). The principle that normally the share of a male is double the
share of a female has some justification. Under Muslim law, while a female heir gets (or
hopes to get in future) an additional money or property as her Mehr and maintenance from
her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is
primarily liable for the maintenance of his children whereas, the female heir may have this
liability only in an extraordinary case.
 A Child in the Womb
A child in the womb of its mother is competent to inherit provided it is born alive. A child in
embryo is regarded as a living person and, as such, the property vests immediately in that
child. But, if such a child in the womb is not born alive, the share already vested in it is
divested and, it is presumed as if there was no such heir (in the womb) at all.
 Primogeniture
Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys
certain special privileges. Muslim law does not recognise the rule of primogeniture and all
sons are treated equally. However, under the Shia law, the eldest son has an exclusive right to
inherit his father’s garments, sword, ring and the copy of Quran, provided that such eldest son
is of sound mind and the father has left certain other properties besides these articles.
 Step-Children
The step-children are not entitled to inherit the properties of their step-parents. Similarly, the
step-parents too do not inherit from step-children.
For example, where a Muslim H marries a widow W having a son from her previous
husband, the son is a step son of H, who is stepfather of this son. The step-father and step-son
(or daughter) cannot inherit each other’s properties. That stepchild is competent to inherit
from its natural father or natural mother. Similarly, the natural father and natural mother can
inherit from their natural sons or daughters. However, the step-brothers (or sisters) can inherit
each other’s properties. Thus, in the illustration given above, if a son (or daughter) is born out
of the marriage of H and W, the newly born child would be a step-brother (or sister) of the
son from wife’s previous husband. These sons or daughters are competent to inherit each
other’s property. The step-brothers or sisters may either be, uterine or consanguine. Muslim
law provides for mutual rights of inheritance between uterine and consanguine brothers or
sisters.
 Escheat
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat.
 Women Rights of Inheritance in Islam
Women form a main part of the society and most of their rights were denied in the pre-
Islamic periods. Islam has honoured women by issuing many laws to protect them and to 13
give them a noble life. The distinct and fixed right of inheritance is one of these laws which
Islam set for women. From the above verse, we can say that Allah mentioned clearly about
the rights of inheritance for both men and women. It also clarifies the rights of women in
inheritance that were not known before. Many people claim that Islam does injustice to
women in case of inheritance but it’s not true. Allah Almighty offered a full and detailed
method of women’s inheritance in the Quran and Sunnah, if someone wants to know about it
they can read from Quran and the Sunnah of Prophet Muhammad One of the companions of
Prophet Muhammad Sa’ad ibn Abi Waqqas was ill and requested to devise the majority of his
wealth as charity, or a half of it since he was wealthy and only had one daughter.
In Holy Quran Allah Almighty clearly defined the rights of inheritance for both men and
women in a way: “Allah (thus) direct you as regards your children’s (inheritance) to the male,
a portion equal to that of two females. If only daughters, two or more, their share is two-
thirds of the inheritance. If only one, her share is a half. For parents, a sixth share of the
inheritance to each, if the deceased left children. If no children and the parents are the (only)
heirs, the mother has a third. If the deceased has brothers (or sisters) the mother has a sixth.
After payment of legacy and debts. Ye know not whether the parents or your children are
nearest to you in benefit. These are settled portions ordained by Allah, and Allah is All-
Knowing, All-Wise.”
 Rights of Widows in Islam
The widow is a woman who is destined to lose her husband who supports and provides for
her. She is a woman who suffers really hard. This suffering is not only financial, but most of
the time it is emotional and psychological suffering. When the husband dies, the widow has
many financial rights. She has the right to inherit him and it is not permissible for anyone to
take her inheritance without her acceptance. If the husband doesn’t leave for her enough
money to fulfill her needs and the children’s need, the society has to support her and charity
becomes a must for her as Prophet Mohamed3 (peace be upon him).
According to The Sharee‘ah (Islamic Law), a widow is indeed entitled to a share of the
inheritance from the property which belonged to her deceased husband. The wife’s share is
one-fourth if her husband leaves no child, but if he leaves a child, she gets an eighth. Allah
said in the Holy Quran4
Islam also grants the widow the right to having a house and a shelter for her and the children.
band doesn’t leave a house; a proper amount of money is taken from his property to provide a
house for the widow and the children as she is in a special need for a house more than any
3 Prophet Mohamed said the one who looks after a widow or a poor person is like a Mujahid (warrior) who
fights for Allah’s Cause, or like him who performs prayers all the night and fasts all the day
4 And for the wives is one fourth if you leaveno child.But if you leavea child,then for them is an eighth of
what you leave.
other inheritor. The Right of Remarrying: Islam considers human nature; hence, it permits the
marriage of the widow and sets a specific period for her ‘Iddah’ (waiting period), which is
four months and ten days or until delivery for pregnant women. It is permissible to a wife to
remarry in Islam after her Iddah (waiting period) ends in order to maintain her chastity or to
fill the emotional and the psychological emptiness due to the absence of the husband
especially if she is young and has children who need a father.
In judicial verdict5, it was held that a childless widow, in the absence of other heirs, was
entitled to inherit her share and rest of the property including the land, of her husband by the
application of the doctrine of return.
 Simultaneous Death of two Heirs
When two or more persons die in such a circumstance that it is not ascertainable as to who
died first (i.e. who survived whom) then, both of them cease to be an heir for each other. In
other words, where two or more heirs die simultaneously and, it is not possible to establish as
to who died first then under Muslim law, all the heirs are presumed to have died just at one
moment. The result is that such heirs are regarded as if they did not exist at all; the
inheritance opens omitting these heirs.
 Missing Persons
According to the texts of Hanafi law, a missing person was supposed to have been dead only
after ninety years from the date of his birth; till then the inheritance of his properties did not
open. But, now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872
which provides as under: “When the question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would naturally have heard
of him if he had been alive, the burden of proving that he is alive is shifted to the person who
affirms it”. Accordingly, where a Muslim is missing for at least seven years and if it could
not be proved that he (or she) was alive then, that person is legally presumed to be dead and
the inheritance of his (or her) properties opens. It has been held by the courts that Hanafi rule
of ninety years of life of a missing person was only a rule of evidence and not any rule of
5 In Abdul Hammed Khan vs. Peare Mirza,1935 I.L.R. 10 Luck. 550.
succession; therefore, this Hanafi rule must be taken as superseded by the provisions of
Indian Evidence Act6
 GROUNDS OF DISQUALIFICATIONS:
Disqualifications which debar the heirs to succeed the property of the intestate are—
 MURDERER- Under the Sunni Law, a person who has caused the death of another,
whether intentionally, or by mistake, negligence, or accident, is debarred from
succeeding to the estate of that other. Homicide under the Shia Law is not a bar to
succession unless the death was caused intentionally.
 ILLEGITIMATE CHILDREN Under the Hanafi School, an illegitimate child is not
entitled to inherit. Such a child cannot inherit from his/her father but can inherit from
his/her mother and all relatives of the mother. The mother can also inherit the
property of her illegitimate children.
 CHILD IN THE WOMB - A child in the womb of its mother is competent to inherit
only if it is born alive. A child in embryo is regarded as a living person and, as such,
the property vests immediately in that child. But, if such a child in the womb is not
born alive, the share already vested in it is divested and, it is presumed as if there was
no such heir (in the womb) at all.
 DIFFERENCE OF RELIGION - A non-Muslim could not inherit from a Muslim but
the Caste Disabilities Removal Act of 1850 does away in India with the exclusion of a
non-Muslim from the inheritance of the property. If a non-Muslim accepts Islam, and
then dies, the Act of 1850 cannot warrant the application of his conversion law of
succession to his property; the Muslim Law will apply in such a case. Where a
convert to Islam died leaving behind an only daughter, as against the claim of his non-
Muslim relatives she was given all his property – ½ share as her fixed share as
Quranic heir and the reminder by way of return. Where a Muslim contract his
marriage under the Special Marriage Act7, he ceases to be a Muslim for purposes of
inheritance. Accordingly, after the death of such a Muslim his (or her) properties do
not devolve under Muslim law of inheritance. The inheritance of the properties of
6
IndianEvidence Act6
1872
7 Special MarriageAct7, 1954
such Muslims is governed by the provisions of the Indian Succession Act8, and
Muslim law of inheritance is not applicable.
 Escheat - Where a deceased Muslim has no legal heir under Muslim law, his
properties are inherited by Government through the process of escheat. State is
regarded as the ultimate heir of every deceased.
 SCOPE OF THE STUDY
This research is to study about how the law of inheritance works in HANAFI and SHIA sect
in Muslim law. This research was intended to compare other religion with Muslim law of
inheritance.
 SIGNIFICANCE OF THE STUDY
The law of inheritance prescribes the study of distribution of property after the death of
ancestor.It is also believed to be the transfer of an article from one person to another which
involves the transfer of wealth, knowledge, honour or dignity. In this project we can find the
connection between law of inheritance and it’s influence between Prophet Mohammed and
the holy Quran.
 LITRATURE REVIEW
Inheritance of property in Muslim law comes only after the death of a person, any child born
into a Muslim family does not get his right to property on his birth. The Hanafi and Shia
schools: The Islamic Law of inheritance is a combination of the pre-Islamic customs and the
rules introduced by the Prophet. Under the Muslim law, distribution of property can be made
in two ways – per capita or per strip distribution. The per capita distribution method is
majorly used in the Sunni law. According to this method, the estate left over by the ancestors
gets equally distributed among the heirs. Therefore, the share of each person depends on the
number of heirs. The per strip distribution method is recognised in the Shia law. According to
8 Indian Succession Act, 1925
this method of property inheritance, the property gets distributed among the heirs according
to the strip they belong to. Hence the quantum of their inheritance also depends upon the
branch and the number of persons that belong to the branch. Below are some relevant studies,
journals, cases,articles and books that have been taken up for the purpose of literature review.
 RESEARCH METHODOLOGY
 RESEARCH DESIGN & SOURCE OF DATA
The present study will be based on secondary data. The methodology followed in this
research is doctrinal research. Doctrinal research which is sometimes referred to as armchair
research is essentially a library-based study as the material needed by a researcher maybe
available in libraries, archives and other data bases. The aim of such reach is to discover,
explain and analyse the working of certain laws or legal institutions in a systematic manner
and develop new facts, theories, principles, concepts etc. from such study. The collection of
data and information with regard to the topic that is Hanafi Law of Inheritance-Shia schools
will be from published papers, relevant articles, cases, goggle-books, internet websites and
legislations. Here we have adopted analytical and critical study.
 RESEARCH QUESTIONS
1. Provide Laws pertaining to distribution of wealth amongst heirs, so heirs don’t
fight?
2. Ensuring that a just system can be established and wealth is not accumulated
into a single entity?
3. Is there any difference between movable and immovable property under
Muslim law of inheritance?
 TOOLS AND TECHNIQUE
Techniques and tools are the ways and means to conduct research and it could only be
justified through the use of appropriate methods and techniques. Therefore, we have used
explanatory and comparative techniques.
 CONCLUSION
The Holy Quran states ‘Allah has purchased from believers their persons and their wealth in
lieu of Jannah’. Man is a trustee of the wealth that he owns for the duration of his life. When
the term of his life ends, his trusteeship over his wealth and property expires. After his death,
his property should be redistributed according to the directions given by Allah Taala.
Directives regarding the distribution of wealth and property of the deceased after his death
are provided under the Holy Quran.
 Case Laws
1. In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held
that upon the death of a Mohammedan, the whole estate devolves upon his heirs at the
moment of his death and the heirs succeed to the estate as tenants-in-common in
specific shares.
2. In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person,
who has converted to Islam, dies leaving behind his daughter only and no residuary,
shall be entitled to her share as well as residuary share in the property of the deceased.
3. In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir of the
Mohammedan is liable for the debt of the deceased to the extent only of a share of the
debts proportionate to his share of the estate.
4. In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held that
the joint system family or joint property is unknown to Muslim law and therefore the
right, title and interest in the land held by the person stands extinguished and stands
vested in other persons.
5. In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was held that a
childless widow, in the absence of other heirs, was entitled to inherit her share and
rest of the property including the land, of her husband by the application of the
doctrine of return.
BIBLIOGRAPHY
1. Aqil Ahmad – Mohammedan Law (Revised by Prof. Iqbal Ali Khan)
2. Mulla’s Principles of Mohamedan Law
3. shareyouressays.com
4. ipleaders.in 5. lawrato.com

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LAW OF INHERITANCE UNDER SHIA SCHOOL (FAMILY LAW)

  • 1. FAMILY LAW ASSIGNMENT TOPIC- Hanafi Law of Inheritance-Shia schools SUBMITTED TO: PROF. DEVI PRABHA SUBMITTED BY: SATYAM KUMAR ROLL NO. – 20191BAL0068 SECTION- 04
  • 2. TABLE OF CONTENTS 1. Acknowledgement 2. Synopsis 3. Introduction • Objectives of the study • Scopeofthe study • Significance of the study 4. Literature Review 5. Research Methodology • Research design & Source of data • Research questions • Tools and techniques 6. CONCLUSION 7. CASE LAW’S
  • 3. ACKNOWLEDGEMENT “I would like to express my special thanks of gratitude to my Professors Devi Prabha who gave me the opportunity to do this project on the topic “Hanafi Law of Inheritance-Shia schools” as I did my research for this project & I was enlightened with a great amount of knowledge and information and I’m deeply nourished with a great amount of insight in this process.” Thanking you!!! Satyam Kumar(20191BAL0068)
  • 4. SYNOPSIS We are aware that we are in constitutional civilized society, but we have no uniform civil code regarding Law of Inheritance to all the citizen of India. Every religion practiced in India is governed by its respective personal laws – which includes property rights as well. In our religious societies, inheritance represents the most important method of transferring wealth from one generation to the next. Islam is the religion in which every aspect of life is being discussed and managed no matter what’s the issue in the life of human beings. We can say that Islam is the complete code of life. Religion Islam organizes a Muslim’s life by issuing many rules and laws which guarantee an honourable and happy life for each Muslim. Even a cursory examination of the laws governing inheritance in most Islamic countries discloses a set of complicated rules that are difficult to understand and, consequently, apply. The courts are kept busy trying to untangle the morass, and their rulings hardly satisfy the litigants, usually siblings, who invariably feel that they were unfairly treated by the deceased father or mother. The law related to inheritance derives its principles from four principal sources of Islamic law. They are the Holy Quran, the Sunna i.e. the practice of the Prophet, the Ijma i.e. the consensus of the learned men of a community on a particular point of law and the Qiya i.e. the analogical deductions of what holds just and right and in line with the principal laid down by the God.
  • 5. INTRODUCTION Inheritance is defined as the process of devolving property upon the death of its owner. According to Morgan, it means the distribution of deceased’s property among the cognate kindred. It is also believed to be the transfer of an article from one person to another which involves the transfer of wealth, knowledge, honour or dignity. The law related to inheritance derives its principles from four principal sources of Islamic law. They are the Holy Quran, the Sunna i.e. the practice of the Prophet, the Ijma i.e. the consensus of the learned men of a community on a particular point of law and the Qiya i.e. the analogical deductions of what holds just and right and in line with the principal laid down by the God. Muslim law recognises two types of heirs -1.Sharers ‘the ones who are entitled to certain share in the deceased’s property’ & 2. Residuary ‘the ones who would take up the share in the property that is left over after the sharers have taken their part’. Whereas succession is defined as the substitute of a living person for the deceased person in a relation to all rights and duties which the latter had. Some also see succession as the right of a person to succeed into title, throne and properties and what-not of any person dead or alive. In essence, succession is seen as the right and transmission of the rights and obligation of the deceased to his heirs that takes place only after the death of the property’s owner. By mere contemplating on the two definitions above, its crystal clear that both inheritance and succession centred around the transfer of properties at the expiration of someone’s authority due to death. It also connotes the availability and certification of the dead person, the property and the new owner. Succession under Muslim Law in the absence of a will, i.e., non- testamentary succession is governed by the Muslim Personal Law1. 1 Muslim Personal Law (Shariat) Application Act, 1937
  • 6. OBJECTIVE OF THE STUDY  The Hanafi and Shia schools  Types of Heirs  Distribution of Property under Muslim Law  The General Principles of Inheritance under Muslim Law  Women Rights of Inheritance in Islam  Rights of Widows in Islam  Grounds of Disqualifications
  • 7.  The Hanafi and Shia schools The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable property. This property can be movable or immovable and ancestral or self-acquired. However, Muslims in the country do not have codified property rights and are broadly governed by either of the two schools (sects) of the Muslim personal law – the Hanafi (Sunni)and the Shia. While the Hanafi school (Hanafi school of Sunni Sect) recognises only 2 those relatives as heirs whose relation to the deceased is through a male. This includes son's daughter, son's son and father's mother. The Shia school(sect), on the other hand, favours no such discrimination. This means that heirs, who are related to the deceased through a female are also accepted. The estate of a deceased Muslim devolves on his heirs separately and the heirs are entitled to hold the property as tenants-in-common, each having a definite share in the property. The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the community over the decision over a particular subject matter), Qiya (deductions based on analogy on what is right and just in accordance with good principles). Muslim law recognises two types of heirs, firstly, sharers, the ones who are entitled to certain share in the deceased’s property and secondly, residuary, the ones who would take up the share in the property that is left over after the sharers have taken their part. Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. In cases of Non testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. Needless to say, the rules set out in the Quran are not applied correctly if at all. In fact, what is applied is the hadeeth and Sunnah which are invariably the sources of the interpretations of the schools of jurisprudence. The Islamic scholars, as usual, ignored the Quran, misconstrued the Prophet's words and misinterpreted his intent thereby rob-bing the inheritance laws of their flexibility and, not least, of their equability.
  • 8.  TYPES OF HEIRS Heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. But under certain circumstances, other heirs can also inherit as residuaries, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and mother. Those who inherit are usually confined to three groups: 1. Quota-heirs (dhawu al-farā), usually include daughters, parents, grandparents, husband and wife/ wives, brothers and sisters, and others. This group usually take a designated share or quota of the estates. 2. Members of the asaba (residuaries), usually a combination of male (and sometimes female) relatives that inherit as residuaries after the shares of the Quota-heirs is distributed. 3. In case a person leaves no direct relatives and there is no u aba, his property ʿ ṣ escheats to the state treasury (Bayt al-mal) There are mainly two types of heirs under the Muslim Law of Inheritance which is Sharers and Reliquaries. Sharers are entitled to specific fractions of the property of the deceased whereas Reliquaries, as the name suggests, are distributed any residual share in the property. Sharers The Sharers are 12 in number and are as follows: 1. Husband, 2. Wife 3. Daughter 4. Daughter of a son (or son's son or son's son and so on) 5. Father 6. Paternal Grandfather 7. Mother 8. Grandmother on the male line 9. Full sister 10. Consanguine sister 11. Uterine sister 12. Uterine brother.
  • 9. The share taken by each sharer will vary in certain conditions. For instance, ➢ a wife takes ¼th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. ➢ A husband (in the case of succession to the wife's estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. ➢ A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds. ➢ If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become reliquaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.  The General Principles of Inheritance under Muslim Law  Nature of the Heritable Property Heritable property is that property which is available to the legal heirs for inheritance. After the death of a Muslim, his properties are utilised for the payment of funeral expenses, debts and the legacies i.e. will, if any. After these payments, the remaining property is called heritable property. Under Muslim law, every kind of property may be a heritable property. For purposes of inheritance, Muslim law does not make any distinction between corpus and usufruct or, between movable and immovable, or, corporeal and incorporeal property. Under English law, there is some difference in the inheritance of movable and immovable property. But, under Muslim law there is no such distinction; any property, which was in the ownership of the deceased at the moment of his death, may be the subject-matter of inheritance. Shia Law: Under the Shia law, a childless widow is entitled to get her share (1/4) in the inheritance only from the movable property left by her deceased husband.
  • 10.  Joint or Ancestral Property2 The concept of a joint family or of coparcenaries property (as is recognised under Hindu law) is not known to Muslims. Whenever a Muslim die, his properties devolve on his heirs in definite share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his properties are again inherited by his legal heirs, and this process continues. There is no provision for any ancestral or joint-family property. Accordingly, under Muslim law of inheritance, no distinction has been made between self-acquired and ancestral property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded as an individual property and, may be inherited by his legal heirs.  No Birth right under the Muslim Inheritance Law Islamic Law follows the principle of ‘nemo est haeres viventis’ i.e. nobody can become an heir to a living person. This means under Muslim law, the legal right to inheritance of property arises only upon the death of the deceased and not upon the birth of the child. Another point to note is that an heir can only gain a share in the property of the deceased if the heir outlives the deceased. However, if the heir apparent dies before the deceased then he or she will gain no right to inheritance and thereby their family members cannot take up their share in place of them. Under the Hindu law, a coparcenary gains interest or right in the property of the deceased the moment such a coparcenary is born. This right to property by birth is called Janmaswatvavad. But because there is no concept of a joint family under Muslim law, there is no concept of the right to property by birth either.  Doctrine of Representation The Doctrine of Representation is a well-recognized doctrine under the Roman, English and Hindu laws of Inheritance. According to the Doctrine of Representation, the son of a predeceased son represents his father for the purpose of inheritance. The Muslim Laws of Inheritance does not recognize the Doctrine of Representation because, under Muslim Law, the nearer excludes the remoter. 2 In judicial verdict,itwas held that the jointsystem family or jointproperty is unknown to Muslimlawand therefore the right, titleand interest in the land held by the person stands extinguished and stands vested in other persons.........In Abdul Raheem vs.Land Acquisition Officer,AIR1989 AP 318.
  • 11. In simple words, if there are two heirs who claim the inheritance for a common ancestor, the heir who is neared to the deceased will exclude the remoter. The justification is given by the Muslim Jurists for denying the right of representation on the ground that a person has an inchoate right to the propriety of his ancestor until the death of the ancestor. Subsequently, they argue that there can be no claim through a deceased person in whom no right could have been vested by any possibility.  Female’s Right of Inheritance Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs include also the females then, male and female heirs inherit the properties simultaneously. Males have no preferential right of inheritance over the females, but normally the share of a male is double the share of a female. In other words, although there is no difference between male and female heir in so far as their respective rights of inheritance is concerned but generally the quantum of property inherited by a female heir is half of the property given to a male of equal status (degree). The principle that normally the share of a male is double the share of a female has some justification. Under Muslim law, while a female heir gets (or hopes to get in future) an additional money or property as her Mehr and maintenance from her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is primarily liable for the maintenance of his children whereas, the female heir may have this liability only in an extraordinary case.  A Child in the Womb A child in the womb of its mother is competent to inherit provided it is born alive. A child in embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.  Primogeniture Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys certain special privileges. Muslim law does not recognise the rule of primogeniture and all sons are treated equally. However, under the Shia law, the eldest son has an exclusive right to
  • 12. inherit his father’s garments, sword, ring and the copy of Quran, provided that such eldest son is of sound mind and the father has left certain other properties besides these articles.  Step-Children The step-children are not entitled to inherit the properties of their step-parents. Similarly, the step-parents too do not inherit from step-children. For example, where a Muslim H marries a widow W having a son from her previous husband, the son is a step son of H, who is stepfather of this son. The step-father and step-son (or daughter) cannot inherit each other’s properties. That stepchild is competent to inherit from its natural father or natural mother. Similarly, the natural father and natural mother can inherit from their natural sons or daughters. However, the step-brothers (or sisters) can inherit each other’s properties. Thus, in the illustration given above, if a son (or daughter) is born out of the marriage of H and W, the newly born child would be a step-brother (or sister) of the son from wife’s previous husband. These sons or daughters are competent to inherit each other’s property. The step-brothers or sisters may either be, uterine or consanguine. Muslim law provides for mutual rights of inheritance between uterine and consanguine brothers or sisters.  Escheat Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.  Women Rights of Inheritance in Islam Women form a main part of the society and most of their rights were denied in the pre- Islamic periods. Islam has honoured women by issuing many laws to protect them and to 13 give them a noble life. The distinct and fixed right of inheritance is one of these laws which Islam set for women. From the above verse, we can say that Allah mentioned clearly about the rights of inheritance for both men and women. It also clarifies the rights of women in inheritance that were not known before. Many people claim that Islam does injustice to women in case of inheritance but it’s not true. Allah Almighty offered a full and detailed method of women’s inheritance in the Quran and Sunnah, if someone wants to know about it they can read from Quran and the Sunnah of Prophet Muhammad One of the companions of
  • 13. Prophet Muhammad Sa’ad ibn Abi Waqqas was ill and requested to devise the majority of his wealth as charity, or a half of it since he was wealthy and only had one daughter. In Holy Quran Allah Almighty clearly defined the rights of inheritance for both men and women in a way: “Allah (thus) direct you as regards your children’s (inheritance) to the male, a portion equal to that of two females. If only daughters, two or more, their share is two- thirds of the inheritance. If only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children. If no children and the parents are the (only) heirs, the mother has a third. If the deceased has brothers (or sisters) the mother has a sixth. After payment of legacy and debts. Ye know not whether the parents or your children are nearest to you in benefit. These are settled portions ordained by Allah, and Allah is All- Knowing, All-Wise.”  Rights of Widows in Islam The widow is a woman who is destined to lose her husband who supports and provides for her. She is a woman who suffers really hard. This suffering is not only financial, but most of the time it is emotional and psychological suffering. When the husband dies, the widow has many financial rights. She has the right to inherit him and it is not permissible for anyone to take her inheritance without her acceptance. If the husband doesn’t leave for her enough money to fulfill her needs and the children’s need, the society has to support her and charity becomes a must for her as Prophet Mohamed3 (peace be upon him). According to The Sharee‘ah (Islamic Law), a widow is indeed entitled to a share of the inheritance from the property which belonged to her deceased husband. The wife’s share is one-fourth if her husband leaves no child, but if he leaves a child, she gets an eighth. Allah said in the Holy Quran4 Islam also grants the widow the right to having a house and a shelter for her and the children. band doesn’t leave a house; a proper amount of money is taken from his property to provide a house for the widow and the children as she is in a special need for a house more than any 3 Prophet Mohamed said the one who looks after a widow or a poor person is like a Mujahid (warrior) who fights for Allah’s Cause, or like him who performs prayers all the night and fasts all the day 4 And for the wives is one fourth if you leaveno child.But if you leavea child,then for them is an eighth of what you leave.
  • 14. other inheritor. The Right of Remarrying: Islam considers human nature; hence, it permits the marriage of the widow and sets a specific period for her ‘Iddah’ (waiting period), which is four months and ten days or until delivery for pregnant women. It is permissible to a wife to remarry in Islam after her Iddah (waiting period) ends in order to maintain her chastity or to fill the emotional and the psychological emptiness due to the absence of the husband especially if she is young and has children who need a father. In judicial verdict5, it was held that a childless widow, in the absence of other heirs, was entitled to inherit her share and rest of the property including the land, of her husband by the application of the doctrine of return.  Simultaneous Death of two Heirs When two or more persons die in such a circumstance that it is not ascertainable as to who died first (i.e. who survived whom) then, both of them cease to be an heir for each other. In other words, where two or more heirs die simultaneously and, it is not possible to establish as to who died first then under Muslim law, all the heirs are presumed to have died just at one moment. The result is that such heirs are regarded as if they did not exist at all; the inheritance opens omitting these heirs.  Missing Persons According to the texts of Hanafi law, a missing person was supposed to have been dead only after ninety years from the date of his birth; till then the inheritance of his properties did not open. But, now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872 which provides as under: “When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”. Accordingly, where a Muslim is missing for at least seven years and if it could not be proved that he (or she) was alive then, that person is legally presumed to be dead and the inheritance of his (or her) properties opens. It has been held by the courts that Hanafi rule of ninety years of life of a missing person was only a rule of evidence and not any rule of 5 In Abdul Hammed Khan vs. Peare Mirza,1935 I.L.R. 10 Luck. 550.
  • 15. succession; therefore, this Hanafi rule must be taken as superseded by the provisions of Indian Evidence Act6  GROUNDS OF DISQUALIFICATIONS: Disqualifications which debar the heirs to succeed the property of the intestate are—  MURDERER- Under the Sunni Law, a person who has caused the death of another, whether intentionally, or by mistake, negligence, or accident, is debarred from succeeding to the estate of that other. Homicide under the Shia Law is not a bar to succession unless the death was caused intentionally.  ILLEGITIMATE CHILDREN Under the Hanafi School, an illegitimate child is not entitled to inherit. Such a child cannot inherit from his/her father but can inherit from his/her mother and all relatives of the mother. The mother can also inherit the property of her illegitimate children.  CHILD IN THE WOMB - A child in the womb of its mother is competent to inherit only if it is born alive. A child in embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.  DIFFERENCE OF RELIGION - A non-Muslim could not inherit from a Muslim but the Caste Disabilities Removal Act of 1850 does away in India with the exclusion of a non-Muslim from the inheritance of the property. If a non-Muslim accepts Islam, and then dies, the Act of 1850 cannot warrant the application of his conversion law of succession to his property; the Muslim Law will apply in such a case. Where a convert to Islam died leaving behind an only daughter, as against the claim of his non- Muslim relatives she was given all his property – ½ share as her fixed share as Quranic heir and the reminder by way of return. Where a Muslim contract his marriage under the Special Marriage Act7, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance. The inheritance of the properties of 6 IndianEvidence Act6 1872 7 Special MarriageAct7, 1954
  • 16. such Muslims is governed by the provisions of the Indian Succession Act8, and Muslim law of inheritance is not applicable.  Escheat - Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat. State is regarded as the ultimate heir of every deceased.  SCOPE OF THE STUDY This research is to study about how the law of inheritance works in HANAFI and SHIA sect in Muslim law. This research was intended to compare other religion with Muslim law of inheritance.  SIGNIFICANCE OF THE STUDY The law of inheritance prescribes the study of distribution of property after the death of ancestor.It is also believed to be the transfer of an article from one person to another which involves the transfer of wealth, knowledge, honour or dignity. In this project we can find the connection between law of inheritance and it’s influence between Prophet Mohammed and the holy Quran.  LITRATURE REVIEW Inheritance of property in Muslim law comes only after the death of a person, any child born into a Muslim family does not get his right to property on his birth. The Hanafi and Shia schools: The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules introduced by the Prophet. Under the Muslim law, distribution of property can be made in two ways – per capita or per strip distribution. The per capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The per strip distribution method is recognised in the Shia law. According to 8 Indian Succession Act, 1925
  • 17. this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch. Below are some relevant studies, journals, cases,articles and books that have been taken up for the purpose of literature review.  RESEARCH METHODOLOGY  RESEARCH DESIGN & SOURCE OF DATA The present study will be based on secondary data. The methodology followed in this research is doctrinal research. Doctrinal research which is sometimes referred to as armchair research is essentially a library-based study as the material needed by a researcher maybe available in libraries, archives and other data bases. The aim of such reach is to discover, explain and analyse the working of certain laws or legal institutions in a systematic manner and develop new facts, theories, principles, concepts etc. from such study. The collection of data and information with regard to the topic that is Hanafi Law of Inheritance-Shia schools will be from published papers, relevant articles, cases, goggle-books, internet websites and legislations. Here we have adopted analytical and critical study.  RESEARCH QUESTIONS 1. Provide Laws pertaining to distribution of wealth amongst heirs, so heirs don’t fight? 2. Ensuring that a just system can be established and wealth is not accumulated into a single entity? 3. Is there any difference between movable and immovable property under Muslim law of inheritance?  TOOLS AND TECHNIQUE Techniques and tools are the ways and means to conduct research and it could only be justified through the use of appropriate methods and techniques. Therefore, we have used explanatory and comparative techniques.
  • 18.  CONCLUSION The Holy Quran states ‘Allah has purchased from believers their persons and their wealth in lieu of Jannah’. Man is a trustee of the wealth that he owns for the duration of his life. When the term of his life ends, his trusteeship over his wealth and property expires. After his death, his property should be redistributed according to the directions given by Allah Taala. Directives regarding the distribution of wealth and property of the deceased after his death are provided under the Holy Quran.  Case Laws 1. In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held that upon the death of a Mohammedan, the whole estate devolves upon his heirs at the moment of his death and the heirs succeed to the estate as tenants-in-common in specific shares. 2. In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person, who has converted to Islam, dies leaving behind his daughter only and no residuary, shall be entitled to her share as well as residuary share in the property of the deceased. 3. In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir of the Mohammedan is liable for the debt of the deceased to the extent only of a share of the debts proportionate to his share of the estate. 4. In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held that the joint system family or joint property is unknown to Muslim law and therefore the right, title and interest in the land held by the person stands extinguished and stands vested in other persons. 5. In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was held that a childless widow, in the absence of other heirs, was entitled to inherit her share and rest of the property including the land, of her husband by the application of the doctrine of return. BIBLIOGRAPHY 1. Aqil Ahmad – Mohammedan Law (Revised by Prof. Iqbal Ali Khan) 2. Mulla’s Principles of Mohamedan Law 3. shareyouressays.com 4. ipleaders.in 5. lawrato.com