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Pre-Islamic law relating to inheritance

Submitted to:
Submitted by: Mounika k Sem: VI
Roll no. 2013069

Damodaram
Sanjivayya National
Law University

ACKNOWLEDGEMENT
I, Mounika .k ,4 semester student studying in Damodaram Sanjivayya National Law
University, has done the project with the help from my teachers.I am thankful to them.
th

Table of conduct :
Declaration ........................................................................................2
Acknowledgment ............................................................................3
Introduction ....................................................................................4
Inheritance ......................................................................................5

Rules of inheritance in hadith..........................................................7

Rules of inheritance in fiqh..............................................................8
Reformation in the islamic inheritance............................................8
Classification of heirs........................................................................9
General policy in the islamic inheritance law..................................12
Conclusion .........................................................................................14
Bibliography........................................................................................15

INTRODUCTION
In this old customary system only the male agnates (asaba) were entitled to inherit.
Amongst the male agnates there were rules of priority, which determined which of the
surviving male agnates were entitled to inherit. It is likely that the rules of priority that
operate amongst the asaba in Sharia are a carry-over of the old customary agnatic system.
The customary laws excluded females and cognates from inheritance.The customary law
gave predominance to comradeship in arms and blood tie had assumed a secondary

role.Male agnates were given paramount importance and the nearest male agnates
succeeded to the entire estate.With respect to other agnates,descendants were
preferred to ascendants,who in turn were preferred to collaterals. In the pre-Islamic
period, the Arab family was socially and politically composed of males (as aba), namely
those who were able to fight and defend the common property. At the pater familiass
death, the familial estate was transmitted only to males, according to the principle of
proximity: firstly to those on direct line (descendants and ascendants), then to those on
the collateral line (full or consanguine brothers and their sons, paternal uncles and their
sons, etc.). This structure reflected the strong unity of the familial group conceived as an
association able to defend and offend , thus, implying the social alienation of women,
children, and all those persons unable to contribute to the common defence effectively.1

Inheritance is the entry of living persons into possession of dead persons' property and
exists in some form wherever the institution of private property is recognised as the basis
of the social and economic system. The actual forms of inheritance and the laws
governing it, however, differ according to the ideals of different societies
The law of inheritance in Islam is based upon five main considerations:

http://www.iranicaonline.org/articles/inheritance-ii

1. To break up the concentration of wealth in individuals and spread it out in

society.
2. To respect the property right of ownership of an individual earned through
honest means.
3. To hammer in the consciousness of man the fact that man is not the absolute
master of wealth he produces but he is its trustee and is not, therefore,
authorised to pass it on to others as he likes.
4. To consolidate the family system which is the social unit of an Islamic society.
5. To give incentive to work and encourage economic activity as sanctioned by
Islam.

Some of the distinguishing features of the Islamic law of inheritance. While laying
down the rules for the distribution of the estate of the deceased, the first principle to
be observed is that the property both movable and immovable can be distributed
after meeting the following obligations:
funeral expenses;
clearing off the debts incurred by the deceased;
payment of bequest, if any, to the extent of one-third of the total assets. It may
be remembered that the Mahr of the wife, if it had not been paid, is included in
the debt. Moreover, it is not lawful to make a bequest in favour of a person who
is entitled to a share in the inheritance.

Four persons cannot get inheritance:

(a) a fugitive slave who has fled away from his master,

(b) one who has murdered one's predecessor intentionally or unintentiona lly
(c) one who professes a religion other than Islam,
(d) one living in Dar-ul-Harb cannot inherit the property of one living in Dar-ulIslam and vice versa.
After the descent of the al-mawarith verses, Islamic Inheritance Law introduced a
reformation in inheritance law, where women are recognised by Islam by giving them the
legal status of beneficiaries and their specific shares in the inheritance are determined. Of
the 12 beneficiaries of ashab al-furud, 8 are female beneficiary and only 4 are male
beneficiaries.
Among the reformations introduced in the Islamic Inheritance Law include:
1) Inheritance rights of beneficiaries are based on the relationship of consanguinity
(kinship), marriage contract, wala and Islam.
2) Not to deny the rights to inheritance among male and female, big or small, all of
whom are entitled to the inheritance left by the benefactor (the deceased).
3) Parents and children are not left out from receiving inheritance in any condition. Their
portion of the inheritance might change if there are other beneficiaries.
4) Male and female siblings will not receive the inheritance if the parents of the deceased
are still alive. The presence of siblings/relatives will reduce the mothers share from 1/3
to 1/6.
5) Where there are male and female beneficiaries in a single case, the male beneficiary
will take two parts of the female beneficiarys shares, or two parts for the male
beneficiary and one part for the female beneficiary

Rules of inheritance in Hadith2:

A muslim cannot inherit from a non muslim and a non-muslim cannot inherit from a
2

http://www.searchtruth.com/book_display.php?book=11&translator=2

muslim,
Shares to be given to those who are entitled to them and it goes to nearest male heir.
Whatever is left as property shall be distributed to the nearest male heir.
Parents with no children can give the property to any muslim of their will
Male is equal to two portion of female.

Rules of inheritance in fiqh:

Just as inheritance has causes and impediments, it also has conditions that should be
fulfilled. They might be summed up in the following three3:
First condition: The death of the person inherited
This means that the owner of the inheritance should have died, since his property cannot
be inherited while he is still living. The death of the owner of property might be:

In reality, i.e., he really dies and this is confirmed by observation or the testimony of just
witnesses;

In judgment, i.e., a judge passes a judgment of his death, like in the case of a missing
person when there is no hope of finding him.

Second condition: To learn that the heir is living after the inherited person's death
It means that the heir of the deceased person should be alive at the death of the owner of
the inheritance. This might be:

Actually, in the sense that his being alive is proven by sight or the testimony of just
witnesses.

Potentially, i.e., to regard that he is probably living at the time of the death of the owner
of the inheritance; like in the case of pregnancy, where the fetus is probably living in the
sense that if it is separated (from the mothers womb) and stays alive, then, the right of
inheritance would be affirmed to it.

www.islamweb.net/emerath/index.php?page=articles&id=158244

However, if it is not known that the heir is living after the death of the inherited person,
like the case in which all members of a family die in an accident, then, naturally, there
would be no question of inheritance among them.
Third condition: The absence of all the impediments of inheritance (previously mentioned
in the topic).
If these three conditions are fulfilled, along with its causes, the inheritance will be
established, and the heir will have a share in the inheritance of the deceased owner.

REFORMATION IN THE ISLAMIC INHERITANCE LAW

Before Islam, especially during the time of ignorance of divine guidance (Jahiliyah),
daughters, wives, mothers and other female beneficiaries were not given any right at all
in inheritance distribution. Similarly, children who have not reached puberty were not
given inheritance rights. Inheritance was only applicable to men who could defend their
families and tribes from the enemys attack.
Inheritance was only based on heredity (for adult men), agreement and foster children.
After the descent of the al-mawarith verses, Islamic Inheritance Law introduced a
reformation in inheritance law, where women are recognised by Islam by giving them the
legal status of beneficiaries and their specific shares in the inheritance are determined. Of
the 12 beneficiaries of ashab al-furud, 8 are female beneficiary and only 4 are male
beneficiaries.
Among the reformations introduced in the Islamic Inheritance Law include4:
1)Inheritance rights of beneficiaries are based on the relationship of consanguinity
(kinship), marriage contract, wala and Islam.
2) Not to deny the rights to inheritance among male and female, big or small, all of
whom are entitled to the inheritance left by the benefactor (the deceased).
3) Parents and children are not left out from receiving inheritance in any condition. Their
portion of the inheritance might change if there are other beneficiaries.
4

http://www.islam.gov.my/sites/default/files/islamic_inheritence_law_faraid.pdf

4) Male and female siblings will not receive the inheritance if the parents of the deceased
are still alive. The presence of siblings/relatives will reduce the mothers share from 1/3
to 1/6.
5) Where there are male and female beneficiaries in a single case, the male beneficiary
will take two parts of the female beneficiarys shares, or two parts for the male
beneficiary and one part for the female beneficiary

Classification of heirs:
According to Islam, the heirs have been divided into three classes 5.
(A) Dhaw-u'l-Fara'id are those persons who have a right to definite shares in assets
left by the deceased. These sharers are twelve in number; four males: father,
grandfather, uterine brothers and husband; and eight females: wife, single daughter,
son's daughter, mother, grandmother, full sister, consanguine sister, uterine sister.
Father's share is one-sixth when the deceased leaves a son or a son's son, but if the
deceased is not survived by a son or grandson his father will, in addition to this
share (one-sixth), also get a share of being 'Asaba.
The grandfather's share is like that of father's share but in three conditions:
According to Imam Bukhiri and Imam Muslim, the presence of father deprives even
the brothers of their share in the inheritance. but this is not the case with the
grandfather. Imam Abu Hanifa is of the opinion that the presence of grandfather
deprives the brother of his share in the inheritance.
If the father of the deceased is alive, then the share of the mother is of what is left
from the share of the wife of the deceased. The presence of grandfather does not
reduce the share of the mother of the deceased.

http://www.islam.gov.my/sites/default/files/islamic_inheritence_law_faraid.pdf

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The grandmother of the deceased has no share in the presence of the father of the
deceased but she has a share in the presence of the grandfather.
The third set of sharers are uterine brothers and sisters. They are entitled to onesixth if their number is one, and one-third if they are more than one.
The husband's share is one-half of the property of the deceased wife if she has no
children, but in case of children it is one-fourth.
The wife is entitled to one-fourth if the husband dies childless; otherwise it is oneeighth.
Real daughter: one-half when alone, and two-thirds if more than one. If the deceased
is survived by a male child also. the daughters are then treated as Asaba and the
male child would get double of what falls to the lot of daughters. The
granddaughters stand on the same level as daughters. But in case the deceased is
survived by one real daughter and one or more than one granddaughter they would
get one-sixth. The granddaughter is not entitled to any share if the deceased is
survived by a son, but if he is survived by grandsons and granddaughters, they
would be treated as 'Asaba and the male grandchild would get double of what goes
to the female grandchild.
Full sister gets one-half if she is alone, and two-thirds if they are more than one.
Consanguine sister is entitled to one-half if one, and two thirds if more.
Mother is entitled to one-sixth when she has a child or grandchild, and in case of
being childless she gets one-third of the share.
If the deceased is survived either by paternal grandmother or maternal grandmother or even by both, they are entitled to one-sixth. The grandmother (maternal)
is deprived of her share if the mother of the deceased is alive; and if father is alive
the paternal grandmother is deprived of this share.

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(B) When the heirs of the first group have received the respective shares, the residue
of the assets falls to the share of those relatives who are called Asaba which,
according to the Shari'ah, implies those relatives in whose line of relationship no
female enters. This is the second group of inheritors.
There is no fixed share of the 'Asabat. If the deceased is not survived by any Dhawu'l-Fara'id, the whole of the property falls to their share; and If Dhaw-u'I. Fara'id are
there to get their due share, the residue will be taken by the Asabat. The following
are the 'Asabat:
Son: He is the first to get the residue in order of succession. The daughters are
entitled to half of the share as given to the son. The grandsons are not entitled to any
share in the presence of the son. If the son is not living, then the grandson is entitled
to a share in the inheritance. If there are more than one son, the inheritance will be
distributed equally amongst them.
The father, grandfather and the great-grandfather are included in the category of
Dhaw-u'l-Fara'id. If, however, the deceased is not survived by category of a son,
grandson of great-grandson, then the father will fall under the category of 'Asaba,
and, in the absence of the father, the grandfather assumes that position.
If the deceased is not survived by son, or grandson or father or grandfather, i. e.
none amongst the 'Asabat, then the brother, and in the absence of brother his son,
and in the absence of son, his grandson will be entitled to share in the inheritance as
'Asaba and the female would also join them in share claiming half of the share as
compared with male.
If unfortunately the deceased is survived by none of the above-mentioned relatives
amongst the 'Asabat, then consanguine brother will be entitled to share in the
inheritance and he will be preferred to full brother's son.
Then comes the turn of full paternal uncle.

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(C) The last category of inheritors are known ad Dhaw-u'l Arham, i. e. relations
connected through females, but it is in extremely rare cases that they get any share
in the inheritance. The following relatives come under this category.
The son of the daughter and daughter of the daughter.
The son of the daughter of the son, and daughter of the daughter of the son and their
children.
Maternal grandfather, maternal grandfather of the father, the grandfather of the
mother, maternal grandfather of the mother, the grandmother of the mother, the
children of the sisters, the sisters of the father and those of the mother, etc.

GENERAL POLICIES IN THE ISLAMIC INHERITANCE LAW

The Islamic Inheritance Law is built on a solid foundation which does not exist in any
other inheritance system. These policies are the key criteria of the Islamic Inheritance
Law, namely6:
1) Al-Wasatiyyah, a system which is intermediate (wasatiyyah) in nature compared to the
capitalist and communist systems. Individual ownership is recognised and guaranteed
through the Islamic Inheritance Law.
2) Al-Tawazun, a system that provides balance to the wealth owner to dispose of his
wealth in the distribution of 1/3 for charity through a will, and the remaining 2/3 as
inheritance for the beneficiaries according to the Islamic law
. 3) Al-Adalah, a fair system of distribution of inheritance to all beneficiaries based on
human nature, needs, and their closeness to the benefactor.
4) Al-Ijbar, a system which necessitates all beneficiaries to receive the inheritance
through faraid and the benefactor may not prevent any beneficiary from receiving a
portion of the inheritance. It is obligatory that all beneficiaries receive the inheritance
immediately after the benefactors death, unless he/she relinquishes his/her rights.
5) Inheritance among immediate family members, which refers to inheritance among the
closest kin to the benefactor such husband, wife, parents, children, male siblings, uncles
and relatives on the maternal side (dhawi al-arham) [according to Abu Hanifah and
Ahmad ibn Hanbal].
6) The establishment of portions for each beneficiary which means that all fardu and
6

http://www.shiapen.com/comprehensive/fadak/inheritance-rules-in-quran.html

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asabah beneficiaries will receive their shares. Shares for the ashab al-furud beneficiaries
have been determined by Allah s.w.t. which can be either 1/2, 1/4, 1/8, 2/3, 1/3, or 1/6 as
described in the al-Quran.
7) Members of the comprehensive (syumul) beneficiaries, the beneficiaries who are
entitled to receive a portion of the inheritance include all the beneficiaries or relatives,
whether big or small, old or young, rich or poor, even the child in the womb of its mother
is given the right to inheritance. Similarly, a husband or a wife is entitled to receive the
wealth even though they are not relatives, but they share the sacred relationship of a
marriage, the sacrifice, mutual cooperation and loyalty between them.
8) Rights of women and children in inheritance and their portions, which means that
womens and childrens rights are guaranteed in the Islamic inheritance. The portions to
be rightfully received by women are either 2/3, 1/3, 1/6, 1/2, 1/4 or 1/8. Children receive
the same portions of inheritance, whether they are big or small.
9) Preference to relatives who are closer to the benefactor if there is no specific barrier
which may prevent them from receiving the inheritance.
10) Compromisation on the portions (al-tafadul) in the distribution of inheritance is
based on the needs of the beneficiaries (al-hajah). For example, women and small
children have more needs to the wealth, the deceaseds children have more needs to the
wealth compared to their father and grandfather, and men have more needs to the wealth
compared to women because men must assume certain responsibilities in Islam.
11) Islamic inheritance law is permanent (thabat) in nature; it does not change and may
not interchange even though time, location and individuals are subject to changes because
it is the commandment of Allah s.w.t. through the al-Quran and the Sunnah of the Prophet
(peace and blessings be upon him) except in cases of a grandfathers inheritance while
being with siblings/relatives in receiving the inheritance and wajibah will which has
rooms to be ijtihad.

Conclusion:

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In this old customary system only the male agnates (asaba) were entitled to inherit.
Amongst the male agnates there were rules of priority, which determined which of the
surviving male agnates were entitled to inherit. It is likely that the rules of priority that
operate amongst the asaba in Sharia are a carry-over of the old customary agnatic system.
In Islamic law the son takes priority over the father who in turn takes priority over the
brothers who in turn take priority over the paternal uncles.
As we shall see the Quran does not expressly state the share of the male agnate relatives
as such, although it does enact that the share of the male is twice that of a female. The
Sunni jurists take the view that the intention of the Quranic injunctions was not to
completely replace the old customary agnatic system entirely but merely to modify it with
the objective of improving the position of female relatives.

Bibliography:

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http://www.iranicaonline.org/articles/inheritance-ii
http://www.searchtruth.com/book_display.php?book=11&trans lator
www.islamweb.net/emerath/index.php?page=articles&id=158244
http://www.islam.gov.my/sites/default/files/islamic_inheritence_law_faraid.pdf
http://www.shiapen.com/comprehensive/fadak/inheritance-rules-in-quran.html
http://www.iranicaonline.org/articles/inheritance-ii
http://www.islam101.com/sociology/inheritance.htm