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The Hanafi Law of Succession

There is no uniform civil code for law of inheritance. Every religion is governed by its own personal laws. The Muslim law of inheritance is twofold in nature. These rules of inheritance are based on:
  1. Pre-Islamic customs which were approved by the Prophet.
  2. Quran and the traditions of Prophet
The Pre-Islamic customs discriminated and excluded women from inheriting the property. Later sizeable changes were made to benefit the female. This article concentrates on Hanafi intestate succession. The four major categories of heirs who figure in the Sunni scheme of succession-male agnatic heirs, Quranic heirs, agnatic co-sharers, and female agnatic heir.

Different types of heirs:

The inheritance is limited to three groups:

  1. Quota-heirs, consists of daughters, parents, grandparents, husband and wife/ wives, brothers and sisters, and others
  2. After the shares of the Quota-heirs is distributed members of the asaba (usually a combination of male and sometimes ? ? female relatives) inherit as residuaries.
  3. In case a person leaves no direct relatives then his property becomes the property of the state (escheat).

Sharers: There are 12 sharers and they are:

  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

Pre-Islamic

  1. Male agnatic
    Male agnatic heirs play a significant role in the law of succession. The nearest male agnatic or the highest ranking male relative of the propositus will inherit the property.

Quranic reform

  1. Agnatic Co-sharers
    A female can participate in the succession of property as agnatic co-sharers if she is led by a male agnatic heir who is related to the deceased. An agnatic co-sharer is either a collateral or a descendant of the propositus. Therefore a grandmother can never be made an agnatic heir (in some cases the mother is an exception). Only the daughter, the son's daughter, the germane sister, the consanguine sister, can attain the status of agnatic co-sharer.

    Special case:
    Mother becoming an agnatic heir
    If the male agnate is the father and if there are no children, grandchildren or any collateral present then the father becomes the agnatic heir and converts the mother into an agnatic co-sharer.
  2. Female agnatic heir
    The sole female who inherits agnatically on her own is the germane or consanguine sister. If germane or consanguine sister co-occur with a daughter or sonís daughter, sister ceases to be a Quranic heir and functions as an agnatic heir. The female agnatic heir will be replaced as agnatic heir or she will be excluded by the male.
  3. Quranic heir
    The husband and wife will always take the Quranic entitlement. The mother, father and the daughter are also included in the inheritance however in some cases the daughter and the mother may take as agnatic co-sharers or the father as male agnate. [1]

Settling the shares

Muslim law of succession which allots fractional parts of unity to numerous heirs, and sometimes these fractions can be more or less than the unity. In such cases the shares of the heirs are reduced or increased accordingly. The process of the shares being reduced is called the Doctrine of AUL (Increase), and the process by which the shares are increased is called the Doctrine of Radd (Return)
  1. Doctrine of Aul
    The property of the deceased will be equal to the total shares of the heirs. But sometimes the property existing is lesser than the shares specified. The proportionate share reduces in the following manner.
    1. The share of each sharer to bring under common denominator
    2. The denominator to be increased to the total number of sharers
    3. Allot the share as per the new denominator.

Illustration:
A woman dies leaving behind her 2 daughters, father and husband
Husband - 1/4
Father - 1/6
Daughters- 2/3

Take common denominator i.e 12
Husband - 3/12
Father - 2/12
Daughters- 8/12
TOTAL: 13/12
13/12 becomes 13/13

Shares allotted: Husband - 3/13
Father - 2/13
Daughters- 8/13
b) Doctrine of Radd

In this case the property available is more than the shares specified as per the Quranic distribution of property. Here the first step is to bring the fractions to a common denominator. Then the denominator is to be reduced to the value of total sum of all sharers.

With the help of these doctrines, the Shares of the Sharers are increased and decreased proportionately in such a manner that the Share of the property of the Sharers become equal to unity.

Illustration:
A woman dies leaving behind her daughter and mother
Daughter - 1/2
Mother - 1/6

Take common denominator i.e 6
Daughter - 3/6
Mother - 1/6
TOTAL: 4/6
4/6 becomes 4/4

Shares allotted: Daughter - 3/4
Mother - 1/4

Rights of inheritance

  1. Women Rights of Inheritance in Islam:
    The Pre - Islamic customs denied and excluded women from inheriting the property. But however Islam has honored women by issuing many laws to protect them and to give them a noble life which most of us are unaware off. Islam has set a distinct and fixed right of inheritance for women.

    In Holy Quran Allah Almighty clearly defined the rights of inheritance for both men and women in a way:
    Allah thus commands you concerning your children: the share of the male is like that of two females. If (the heirs of the deceased are) more than two daughters, they shall have two-thirds of the inheritance; and if there is only one daughter, then she shall have half the inheritance.

    If the deceased has any offspring, each of his parents shall have a sixth of the inheritance; and if the deceased has no child and his parents alone inherit him, then one-third shall go to his mother; and if the deceased has brothers and sisters, then one-sixth shall go to his mother. All these shares are to be given after payment of the bequest he might have made or any debts outstanding against him.í (Reference - Quran, 4: 11) [3]
  2. Rights of Widows in Islam:
    In Islam a widow has the right to inherit from her husband and it is not legitimate for anyone to take her share without her acceptance. In case the husband doesnít leave a share of his property or enough money to fulfill the needs then the society is bound to support her. Charity becomes a must for her (widow) as Prophet Mohamed (peace be upon him) said, that the one who looks after a widow or a person whoís in need is like a ďMujahid (warrior) who fights for Allahís Cause, or like him who performs prayers all the night and fasts all the day.Ē
  3. Step-Children:
    The step-children cannot inherit the share of property from their step-parents and vice-versa. For example, where a Muslim A marries a widow B who has a son from her before husband, the son is a step son of A. The step-father and step-son/daughter cannot inherit each otherís properties. That child can only inherit from B and the before husband and vice-versa. However, the step-brothers/sisters can inherit each otherís properties. There is a mutual rights of inheritance between uterine and consanguine brothers or sisters in Muslim law.
  4. Missing Persons:
    If a Muslim is missing for 7 years and if that could not be proved before the court then he / she is considered to be dead and the inheritance of his/her properties open. The courts held that the Hanafi rule of ninety years of life of a missing person was only a rule of evidence and not any rule of succession; therefore, this Hanafi rule must be replaced by the provisions of Indian Evidence Act 1872. [2]
  5. Insanity:
    Under Muslim law Insanity is not disqualifications and, therefore, an insane or unchaste heir is entitled to inherit.

Grounds of disqualification

Disqualifications that exclude the heirs to succeed the property of the intestate are:

  1. Murderer:
    Under the Hanafi law an heir who has caused the death of the deceased intentionally, inadvertently, by accident, or negligence is eliminated from inheritance.
  2. Illegitimate child:
    An illegitimate child cannot inherit from his/her father but can inherit from his/her mother and all relatives of the mother under Hanafi law. The mother is also allowed to succeed the property of her illegitimate children.
  3. Unborn child:
    A child in the womb is considered as a living person. Therefore the child is entitled to take over the property. However if the child is not born alive, it is assumed that no such heir existed.
  4. Difference in religion:
    Under the Islamic law, a non-Muslim is not allowed to inherit the property of a Muslim. In India this is not the case. A Muslim who had renounced Islam, or had in any manner ceased to be a Muslim, will, nonetheless, be entitled to inheritance in the property of his deceased Muslim relation whose heir he is.

    But his non-Muslim kins (children) cannot inherit the property of the deceased Muslim. At the same time, it should be noticed that the inheritance to the property of a convert to Islam is governed by Muslim law.
  5. Escheat:
    If a Muslim has no legal heir then his property is inherited by the government through the process of escheat. State is regarded as the ultimate heir of every deceased. [4]

Case laws:
  1. In Abdul Matin Vs Abdul Azeez AIR 1990 Gau 70 it was held that where one of the two sisters who had inherited their fatherís property died leaving behind a son only and the other died later survived only by her husband, Ĺ latterís property was allotted to her husband and the other Ĺ her sisterís son as a uterine heir.
  2. In Ali Saheb Vs Hazara AIR 1968 Mys 351 it was held that though the principle of rad (return) under the classical law never applies to the surviving spouse, if that spouse is only survivor in India he/she gets the whole property. [2]
Reference:
  1. https://www.jstor.org/stable/312238?seq=1
  2. https://districts.ecourts.gov.in/sites/default/files/Paper%203%29%20By%20Sri%20B%20Lakshmi%20Narayana.pdf
    https://www.shareyouressays.com/knowledge/legal-provisions-regarding-disqualifications-of-heirs-under-muslim-law/117592
  3. https://quran.com/4/11?translations=18,21,22,20,17,19,84,85,95,101
  4. https://www.shareyouressays.com/knowledge/legal-provisions-regarding-disqualifications-of-heirs-under-muslim-law/117592

Award Winning Article Is Written By: Ms.Hridya Nambiar
Email: [email protected]

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