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Succession Of Sharer And Residuary Under Muslim Succession Law

The term Sharia Law,which refers to Islamic Law, will likely become familiar to many of you. Fundamentally, it is a body of Islamic law derived from the teachings of the ( Quran ) and the example of the Prophet Muhammad and (the peace and blessing with him). Family, succession, property, and criminal cases are all heard in Sharia courts.

The complexity and lack of uniformity of Islamic law is a common criticism levelled against it. Although the fundamentals of Islamic law are same across jurisdictions, the sources of jurisprudence vary. When a Muslim dies, his or her estate is distributed according to severe and rigid rules established by Islamic law. According to the law, after paying off all obligations and final expenses, the Deceased's heirs are only allowed to keep a third of their net estate. Sharia law determines the distribution of the remaining two-thirds.

Can You Explain The Estate's Distribution?
Sharia inheritance restrictions would apply to roughly two-thirds of the Deceased's estate, as was previously said based on the Islamic sect to which the Deceased belonged. Distribution is typically made among three types of heirs: First-tier people who are often called Quranic Heirs or Sharers; and The residual Heirs consist of the other two groups. If the deceased's spouse, son, daughter, father, or mother all survive, those six people will inherit the estate.

While the first set of inheritors is secured a promised share of the inheritance, such inheritance is not necessarily simultaneous and some individuals may be disinherited. If the wife dies without any children, her Her spouse ( Means her husband ) has a claim on fifty percent of her estate[1].. If they have kids, he gets 25% of whatever they earn. If a couple does not have any children together, the deceased husband's widow is entitled to a quarter of his fortune. Assuming she had offspring, she would be entitled to one eighth.

When one parent passes away, sons typically get twice as much as daughters. If the daughter were to pass away without having any children, her grandchildren or any distant heirs would be the ones to inherit. Members of the second group include grandparents and siblings. When there are no surviving brothers or sisters, the inheritance goes to the next closest relative. The third set consists of cousins from both sides of the family tree.

The relationships between step parents and step children, especially half brothers and sisters, are governed by legal guidelines. In the event that there are no surviving full siblings, then half-brothers and sisters will inherit. Lastly, a deceased person can leave a bequest to an adopted kid from the one-third of his or her estate that is subject to testamentary freedom, even though the child is not deemed to be a biological child of the couple. In addition, he can bestow upon them eternal rewards.

The discretionary power to leave a legacy lies with the remaining one-third share. Additionally, Sharia law must be followed in this distribution. An additional consideration is that a non-Muslim cannot inherit from a even if he is a Book Believer, he is still a Muslim. On the other hand, non-Muslims who are Christians or Jews (i.e., those who believe in revealed scriptures) can generally inherit from the portion of the estate over which the deceased has testamentary freedom. In the absence of specific bequest instructions, the deceased's estate will be divided equally among the surviving relatives.

Introduction
Succession refers to the passing or inheriting the position of the property, title, or asset from one generation to other generation. If the property owner dies without will or intestate, the state's succession laws will dictate how the estate is to be divided up among the heirs. The right of the heir-apparent or legal heirs does not arise until the death of the ancestors under Muslim law, and all property devolves via this method. The heirs are the exclusive beneficiaries of the estate once the right of succession is activated upon the death ordemise of their last ancestor.

After a Muslim's passing, his or her possessions are used as:
  1. Covering the costs of his funeral.
  2. Paying taxes and other owed money or Borrowed money.
  3. Succession by legatees (By will).
  4. According to Islamic intestacy law, any remaining "estate" or "property" should be given to the decedent's relatives.

Sources[2] Of Succession Under Muslim Law:
  1. The Holy Quran
  2. Sunna
  3. Ijma
  4. Qiya

Testamentary Succession in which a will is transfer of ancestors property or assets to the beneficiaries or heirs mentioned In the will. The distribution of property in the absence of a will[3] is called "intestate succession,"[4] and it is governed by the state's intestacy laws.

Both a testamentary and an intestate succession might result in the distribution of a deceased person's assets or property. Succession through will is known as a legacy in Islamic law location based on one's own volition. The term for a succession that occurs when no surviving heirs are present is intestacy a form of inheritance whereby a deceased person's legitimate inherit his property in a set, clear manner as required by law.

Without a will, a Muslim's estate will be distributed according to the Muslim Personal Law, or (Shariat)[5] or Shariah, Application Act of 1937. often known as non-testamentary succession.

However, in cases The Shariat law of Muslims governs the inheritance of the deceased's property in cases of testamentary succession where the deceased has left a will, as is typically practised by Shia and Sunni Muslims.
There are 4 classes of succession[6] under Muslim Law:
  1. Sharers
  2. Residuaries
  3. Distant Kindred
  4. Escheat

Sharer

People who are heirs to a deceased person's estate.

Muslim law defines 12 potential beneficiaries: the "father", "the mother", the "husband", the "wife", the "daughter", the "daughter's daughter", the "full sister", the "consanguine sister", the "uterine sister", the maternal grandmother, the paternal grandmother, and the uterine brother.

� Father
If the deceased, leaves his children, son, or grandchild, the father becomes a sharer in the estate. And father`s share is (1/6) and if deceased don't have his son grandson then father share will increase by 1/6 of being Asaba.

� Mother
Three different possibilities for the mother:
  • If there is no surviving child or children, grandchildren, (brothers), or (sisters) of the deceased person[7], the surviving spouse would receive a one-third (1/3) portion.
  • When if there is only the "father" or the "partner" of the died or the deceased person, one-third (1/3) of the remaining share is allocated after deduction to the surviving partner.
  • If there are two (2) or other brothers more than 2 "brothers" or "sisters", or one brother and one sister then, No shares should be allocated.

� Husband
  • If the man of the deceased wife is still alive and the wife had children, then the husband would inherit the property.
  • If the marriage has a child (children) or a child's son, the husband will receive a 1/4th[8] portion of the property transfer; otherwise, he will receive a 1/2th share.

� Wife
If the husband passes away, the woman is entitled to his assets[9]. To be clear, though, there are prerequisites:
  • A quarter of the property means (1/4) is to go to whoever has no living children or grandchildren.
  • However, if they had a kid or child then, the wife will receive one-eighth (1/8) of the property.

� Daughter
In the event that there is no male heir, the female heir comes into play. If there is only one daughter, she will get one-half of the inheritance, but if there are multiple daughters, each will receive two-thirds.

� Son`s Daughter
Only if the deceased son's daughter has predeceased him and he has no other sons does the deceased son's daughter become a sharer.[10]

� Full Sister
In the circumstances that if there is no surviving son, "father", "grandfather", "daughter", granddaughter, or brother, the surviving full sister will inherit one-half (1/2) of the remaining estate. In cases when and if there was two or more full sisters and no any excluded brothers, the "sister" will receive two-thirds (2/3) of the ownership.[11]

� Consanguine sisters
These sisters are entitled to receive one-half (1/2) of the inheritance in the absence of a full sister or an excluder.[12]

� Sisters and Brothers Who are Uterine
Only the uterine sister and brother are eligible to inherit if there are no living children, grandchildren, grandfathers, or great-grandchildren. Then sibling gets a total of 2/3 portion, with each person getting 1/2.[13]

� Grandmother
If the deceased person's mother is no longer alive, the maternal grandmother will inherit her portion.[14]

� Grandfather
If the decedent's mother and father are both deceased, the paternal grandmother is the only heir.

Residuraries

If any assets remain after the Sharers' shares have been distributed, the second class of heirs, the ASabah or Agnates, also called the Residuaries, are entitled to them. This is because they inherit whatever is left after the Sharers' shares have been distributed. The ASabah, or heirs to a deceased person's property, are classified as Mahal if they are related to the deceased person through a common Bor and Asabalt if they are related to the deceased person through a common Sabah. Again, we can classify the former into three distinct subsets
  1. Residuaries in which their have owns each right
  2. Residuaries in others or another's right[15]; and
  3. Residuals in combination with another element.

There is a first group comprised of all male relatives who are agnatic, meaning that no women are in the direct line of descent from the deceased. These people are known as agnates proprio jure or ASabah-benafsihi.[16]
  • First, residuaries is broken down into four distinct categories.
    1. The "offspring" of the deceased, that is, the deceased's sons or lineal male descendants,
    2. his "root," or ascendants, that is, his "father" and true grand-father, how`s high so ever,
    3. the "offspring" of his own "father", namely, full "brothers" and "consanguine brothers" and their lineal "male descendants', and
    4. the "offspring" of the true grand-father, how high so ever, that is, lineal male descendants.
       
  • Those women who become residuaries only in the presence of particular males�that is, males of the same degree or who, although being of a lesser degree, would take as such:
    Are known as residuaries[17] in another's right.
    1. Daughters (who also have sons);
    2. Daughters of a son (with a son's son or male descendant further away in the straight line).
    3. The full sister (with her own or full brother).
    4. A consanguine sister is a sister who shares the same father (with her brother).
       
  • Thirdly, the left residuary and the others are:
    1. Full sisters who have daughters or son`s daughters.
    2. Women who are b)consanguineous and have daughters or daughters of their sons.

The State By Escheat

If a Muslim dies without a legitimate heir, the state can claim his assets through escheat. The State is the presumed successor to everybody who has passed away.

Distant Kindred

In the event that neither the sharers nor the residuary are present, the property will pass to the distant kindred. To put it simply, they are the offspring of the womb (persons descended from common mother but by different husbands).

Doctrine Of Aul

In most cases, a deceased person's assets will be divided evenly among their heirs. Sometimes there won't be enough property to divide up evenly into the portions outlined in the Quran. If the number of shares is greater than one, the common denominator is used to determine each person's proportionate part. The number of shares used as the denominator is increased until the correct allocation can be made.

In the table below we see what happens, for example, when a Muslim woman dies and leaves behind a husband and two full sisters

Doctrine Of Radd

In most cases, a deceased person's assets will be divided evenly among their heirs. However, there are exceptions where the available property exceeds the shares outlined in the Quranic distribution of property and no residuary is left over. The surplus is returned to the sharers rather than sent to distant relatives.

If a male Muslim passes away, for instance, his mother and daughter would alive and no residuary would be left.[18]

Famous Judgement

Abdul Matin Vs Abdul Azeez Gau Air 1990[19] Case

In the event that if the one (1) of two sisters who has inherited only their "father's" property predeceased both of them, and leaving behind them only a "son", and the another "sister" predeceased both of them, leaving only her husband as a survivor, it was decided that the surviving sister's husband would receive one half of the deceased sister's estate, and the surviving "sister's son" would receive the other half as a uterine heir.

According to the Holy Quran, Allah has exchanged believers' lives and possessions for eternal bliss in Jannah. For as long as he lives, man acts as trustee over his material possessions. When his trusteeship term expires, he will no longer have control over his assets.

Rukmani Bai V. Bismilla Bia[20]

When a person passes away with only a daughter and no other heirs, it has been decided that the daughter should receive both her part and the residuary share of the deceased's estate.

Ali Saheb Vs Hazara[21]

In this It was decided in this case that the principle of rad (return) under ancient law does not apply to the surviving spouse.it was held that in India the surviving spouse is entitled to the entire estate if there is only one survivor.

Syed Shah Muhammad Kazim And Vs. Syed Abi Saghir And Others [22]

The "Courts" ordered that the heirs must pay off all outstanding bills before he could keep any or each of the inheritance for himself. Regardless of whether or not the heir is able to sell the land or property to a third (3rd) party, the creditor to whom he is indebted will have a stronger claim to the estate than the buyer.

Conclusion
There are four primary sources from which Islamic inheritance law is derived. Real estate as per Sharia law, Shafie law, Hanabali law, and Maliki law. In accordance with Hindu law, no one is automatically granted the title to ownership of any property at birth. All of a person's wealth, both new and inherited, is passed on to his heirs after he dies.

In accordance with Islamic law, a successor must strictly adhere to the customs established by the Quran. When an ancestor dies, the regulations for passing on his or her estate ensure that the property is distributed to the rightful heirs without a fight. The Holy Quran states that: A man and a woman are entitled to an equal portion of the estate left by their parents and closest relatives, regardless of the size of the estate.

Bibliography:
  • Paras Diwan, Family Law,
  • Dr.R.K.Sinha, Muslim Law
  • Aqil Ahmed, Muslim Law
  • Dinshaw F. Mulla, Principle of Mahomedan Law, (20th Edition, 2013), LexisNexis, New Delhi
  • Manjar Saeed, Muslim Law in India, 2013.
  • S P Sen Gupta, Mahomeden Law, (2nd Edition, 2009), Kamal Law House, Kolkata
  • Starr, June. Law as Metaphor From Islamic Courts to the Palace of Justice
  • Albany, NY: StateUniversity of New York Press, 1992.
  • Stephens, Julia.
  • Governing Islam
  • Law, Empire, and Secularism in Modern South Asia
  • Cambridge, UK: Cambridge University Press, 2018.
  • Stewart, Devon J.
  • Islamic Legal Orthodoxy
  • Twelver Shiite Responses to the Sunni LegalSystem
  • Salt Lake City, UT: University of Utah Press, 1998.
  • Stilt, Kristen.
  • Islamic Law in Action
  • Authority, Discretion, and Everyday Experiences in Mamluk Egypt New York: Oxford University Press, 2011.
  • Stockreiter ,Elke E.
  • Islamic Law, Gender and Social Change in Post-Abolition Zanzibar
  • Cambridge, UK: Cambridge University Press, 2015.
  • Dr.R.K.Sinha, Muslim Law
  • Aqil Ahmed, Muslim Law
  • Dinshaw F. Mulla, Principle of Mahomedan Law, (20th Edition, 2013), LexisNexis, New Delhi
End-Notes:
  1. *
  2. Purohit, The Principles of Mohammedan Law, p.467.
  3. Carroll, The Ithna Ashari Law of Intestate Succession, p.87
  4. Carroll, L. The Ithna Ashari Law of Intestate Succession, pp.86-89.
  5. Manjar Saeed, Muslim Law in India, 2013.
  6. Coulson, N.J. Succession in the Muslim Family (Cambridge University Press, London 1971), p. 108
  7. Al-Sirajayyah, 27-28; Cheema, Islamic Law of Inheritance, 71-82; Fyzee, Muhammadan Law, 336-337;
  8. Coulson, Succession, 91; Cheema, Islamic Law of Inheritance, 126
  9. Coulson, Succession, 49-50; Baillie, The Moohummudan Law of Inheritance, 111.
  10. More on Sharer of Muslim Law Inheritence : Inheritance Under Muslim Law( August 22nd, 2022, 10:28 Am) https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf
  11. More on Share given to the Sharer: Who Can Be Termed As Legal Heirs In Shia Law? ( AUG 15th, 2022, 12:29 PM) https://www.willjini.com/assets/img/Laws%20related%20to%20Will%20by%20a%20Muslim.pdf
  12. Bail. II, 271-276, 381
  13. 6 Bail. II, 276, 280, 285
  14. For interpretation of such classes, see Bail. I, 655-62; Bail. II 247-48
  15. Haroon, M.G, Foundation Principles of Islamic Law of Inheritance, (Lagos: Jiyl-Qur'an Enterprises, 2005), Al-Sabuni, M.A , Al-Mawarith Fii Shariati Al-Islamiyyah Fii dhaohi al-Kitab Wa Al-Sunnah (Darul-Kutub, 1388 A.H) and Gunawan, A, Women and the Glorious Qur'an: An Analytical Study of Women-Related Verses of Sura An-Nisa (Universitats Velag, Gottingen, 2004)
  16. Berkey, J.P, The Formation of Islam: Religion and Society in the Near East, 600-1800 (Cambridge: Cambridge University Press, 2003), Falk, Z.W, Hebrew Law in Biblical Times (Provo: BYU Press, 2001) and Radford, M.F, "The Inheritance Rights of Women under the Jewish and Islamic Law", Boston College International and Comparative Law Review, Vol.23, Issue 2, Article 2, 2000.
  17. Law as Metaphor From Islamic Courts to the Palace of Justice
  18. Encyclopaedia Britannica, 15thed. Vol.21. https://www.britannica.com/topic/inheritance-law , Morgan, L. H, Ancient Society, 2nded. 1958, Mustapha, A, et al, Inheritance (Pakistan: Women Aid Trust, 2014),
  19. Abdul Matin And Ors. vs Abdul Aziz And Ors. on 25 September, 1989 (India)
  20. Rukmanibai vs Bismillabai on 27 February, 1992 Equivalent citations: AIR 1993 MP 45 (India)
  21. Ali Saheb vs Hajra Begaum on 9 February, 1968 Equivalent citations: AIR 1968 Kant 351, AIR 1968 Mys 351, (1968) 2 MysLJ (India)
  22. Syed Shah Muhammad Kazim vs Syed Abi Saghir And Ors. on 6 July, 1931 Equivalent citations: 136 Ind Cas 417 (India)


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