INTRODUCTION: -

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.1 In
cases where the subject matter of property is an immovable property which is situated in the state
of West Bengal or comes within the jurisdiction of Madras or Bombay High Court, the Muslims
shall be bound by the Indian Succession Act, 1925.2 This exception is only for the purposes of
testamentary succession.3

Also, Muslim jurists gave a great deal of importance to the laws of inheritance and they were
never tired of repeating the saying of the Prophet: Learn the laws of inheritance and reach them
to the people; for they are one half of useful knowledge; and modern authors have admired the
system for its utility and formal excellence.4

It is noteworthy that the Muslim law does not make any strict distinction between any two or
more type of properties such as movable and immovable, corporeal and incorporeal etc. Since
there is no such distinction between different kinds of properties, therefore, on the event of death
of a person, every such property which was within the ambit of ownership of the deceased
person shall become a subject matter of inheritance.5 The amount of property that shall become
the subject matter of inheritance and is made available to the legal heirs to inherit shall be
determined after making certain appropriations. Such appropriations may include expenses paid

1
Appaii Patra charier v. Srinivasa Chariar, 43 Mad 824.
2
Thunga v. Nani Kutti Amma, AIR 1927 Mad 371.
3
Sheoraj Singh v. Munia, AIR 1963 MP 360.
4
Sadasivam v. Shanmugam, AIR 1927 Mad 126.
5
Joginder Singh v. Kehar Singh AIR 1965 Punj 407.

pg. 1
in lieu of funeral, debts, legacies, wills etc.6 After making all these payments, the left over
property shall be termed as the inheritable property.7

GENERAL RULES OF INHERITANCE UNDER SUNNI LAW: -

1. Inheritance opens on the death of the person: - Before the death of a Muslim of Sunni
sect nobody can claim any right in the property on the basis of his being heir-apparent or
heir-presumptive. In other words, no person may be an heir of a living person.8 It is only
when an heir apparent survives a Muslim, he can be regarded an heir. Thus, (A’s son) is
not entitled to any interest in A’s property during A’s lifetime. If A gifts his property to
C, B cannot file a suit to set aside the gift on the ground of undue influence. This is so
because B has not ‘right to succeed’ during the lifetime of A.

Therefore, an heir-apparent has nothing more than a mere chance of succession i.e. spes
successionis. His right may be defeated in a number of ways; the owner may transfer it in
his lifetime.9 The mere chance/hope of an heir-apparent can neither be transferred nor
renounced in favour of anyone10. But if he receives consideration and so conducts himself
as to mislead an owner, the expectant heir could be debarred from setting up his right
when it does vest in him. This principle of equitable estoppel is in consonance with
Muslim law.11

2. Vested Inheritance: - The moment succession opens, the heirs takes a vested interest in
the estate of the deceased. Their ownership in their respective shares is not dependent
upon its actual distribution by metes and bounds. Thus, even if such heir dies before the
distribution, his right (of inheritance) remains intact and immediately passes to his own
heirs. This is so because what passes on death is the right of inheritance, the corpus is
only the result of such right.

6
AshrafAli v. Mohammed. Ali (1943) 48 Bom LR 642.
7
Sundari v. Lakshmi, AIR 1980 SC 198.
8
Senthilkumar v. Dhandapani AIR 2004 Mad. 403.
9
AQIL AHMAD, MOHAMMEDAN LAW 389 (26th ed. 2016).
10
MAYNE , HINDU LAW & USAGE 1274 (16th ed. 2014).
11
Gulam Abbas v. HajiAli, (1973) 1 SCC l.

pg. 2
 3. Rule of representation: -The expectant right of an heir-apparent cannot pass by
succession to his heir, nor can it pass by bequest to a legatee under his Will.12 Suppose, X
has two sons, the first son dies in the lifetime of his father, but leaving a son. Afterwards
X dies leaving behind his second son and the grandson by the predeceased son. The
surviving (second) son will get the whole property excluding his nephew i.e. grandson of
X. The grandson cannot claim his father’s share because in the lifetime of X, the first son
died. The grandson is not entitled to claim his father’s share as representing him because
his father never inherited from his grandfather. Thus, the ‘son of a predeceased son’ is
not an heir.

Therefore, under Muslim law, the ‘nearer excludes the remoter.’ Thus, the principle of
representation could not be applied for the purposes of deciding who are entitled to
inherit.13 The reasoning behind is that a person has not even an inchoate (incomplete)
right to the property of his ancestor during his lifetime.14 However, in recent years,
several countries have made provisions to mitigate hardships of the son of a predeceased
son.15

4. Disqualifications from inheritance: - A person who causes the death of a person

(homicide) is not entitled to inherit the property of that person, no matter whether the
death was caused intentionally or by accident.16 An illegitimate child is entitled to inherit
from his mother but not from his father. A ‘child in womb’ is regarded as a living person
and, as such, is competent to inherit provided it is born alive. 17 But, if such child 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.18

12
ASAF A.A.FYZEE, OUTLINES OF MUHAMMADAN LAW387 (4th ed. 2001).
13
Mohd Abdul Rahim v. MohdAbdul Hakim, AIR 1931 Mad 553.
14
Mohd Amirullah Khan v. Mohd. Haku Mullah, (1999) 3 SCC 753.
15
MULLA, PRINCIPLES OF MAHOMEDAN LAW, 37 (19th ed. 2011).
16
Sardar W awazish Ali v. Sardar Ali Raza Khan, AIR 1948 PC 134.
17
Ammatieyee v. Kumarsen, AIR 1967 SC 569.
18
Mt. Rahim Bibi v. Chiragh Din, AIR 1930 Lah 97.

pg. 3
 Insanity, want of chastity (adultery) or any other physical deformity is not a
disqualification. Conversion to another religion is also not a disqualification due to the
Caste Disabilities Removal Act, 1850.19 But the religion of the porosities is still an
important factor because the properties devolve under the personal law to which the
propositus belonged “just before his death.” Thus, a Hindu (converted to Islam) when
dies as a Muslim, his Hindu relatives cannot claim a share in inheritance by virtue of the
Caste Disabilities Removal Act.20

Though a daughter is entitled to succeed to the property of the parents, at some places
daughters are excluded on account of local customs, etc. in Jammu and Kashmir, a
daughter can succeed only in absence of all male agnates of the deceased. In Bombay, a
daughter is excluded from inheritance in the presence of paternal uncle.21

5. Doctrine of Exclusion: - This doctrine governs inheritance and excludes certain heirs by
recognizing the preferential claims of certain other heirs. The rules specified under this
doctrine are as follows:

a) Partial or imperfect exclusion: - For instance, exclusion from one share and
admission to another (thus, daughter in the presence of a son is excluded as a
‘sharer’ and becomes ‘residuary’).22 Likewise, partial reduction of the specific
share because of the presence of certain heirs (thus, the share of a wife is either
1/4th or 1/8th according to the absence or presence of a child or child of a son how
low so ever).

b) Total or perfect exclusion: - It applies to cases when although a person related to

the propositus and otherwise entitled to inherit, is excluded by some ‘legal

19
Sundarmal v. Ammenal, AIR 1927 Mad 72.
20
TAHIR MAHMOOD, THE MUSLIM LAW OF INDIA, 204 (3rd ed. 2004).
21
Shaik Moosa v. Shaik Essa, AIR 1958 Bom 341.
22
Mutloob Husain v. Kalawati, AIR 1933 All 934.

pg. 4
 cause.’23 This doctrine consists of a set of three rules which govern inheritance and
exclude certain heirs by recognizing the preferential claims of certain other heirs.24

CLASSES OF HEIRS: -
The Hanafi jurists divide heirs into seven classes, the three Principal and four Subsidiary
Classses.

(A). The Three Principal Classes:

1. Quranic Heirs- called Sharers.
2. Agnatic Heirs- called Residuaries.
3. Uterine Heirs- called Distant Kindered.

(B). The four Subsidiary Classes:

1. The Successor by Contract;
2. The Acknowledged Kinsman;
3. The Sole Legatee;
4. The State, by Escheat.

The three principal classes of heirs together comprise all the blood relations of the deceased,
whether they are agnates or cognates and one relation by marriage, namely, the husband or the
wife.25 The subsidiary heirs succeed only by way of exception. The rules for exception maybe
briefly stated as follows:
1. Where there are no Quranic or Agnatic Heirs, the estate is divided among Uterine Heirs.
2. Where there is a husband or wife and Uterine heirs, the surviving spouse will take his or
her Quranic share and the residue of the estate will be divided among Uterine Heirs.

(A) The Three Principle Classes: -

23
Sita Ram Sah v. Bibi Aisha Khatoon, 1987 PLJR 248.
24
Allah Baksh v. Md. Umar, AIR 1929 Lah 444.
25
Mirza Kurratulein v. Nawab Nuzhat-ud-Daula, AIR 1977 SC 1214.

pg. 5
 1. Sharers or Quranic Heirs: -Sharers are those heirs who are entitled to get a prescribed
share from the heritable property.26 The Sharers and their respective shares in the
property of a deceased are given in Quran. The Sharers are, therefore, also called as
Quranic heirs.27
In the distribution of property, the Sharers get preference over the other class of heirs,
therefore, first of all the respective share is allotted to each Sharer. 28 It may be noted that
Sharers are those heirs whose respective shares are given in Quran; therefore, their shares
cannot be altered by any human effort.29

2. Residuaries or Agnatic Heirs: - Residuaries are those heirs who inherit only the residue
of the property after allotment of respective shares to the Sharers. Obviously, the
Residuaries have no specific share of their own.30 After giving the property to the Sharers
in their fixed shares, if there remains some property that ‘remaining property’ (residue) is
available to the Residuaries.
The residue may differ from case to case. If there are no Sharers, the whole is inherited
by the Residuaries.31 Residuary heirs are also termed as Agnatic heirs because they
inherit through male relations.

3. Distant Kindred or Uterine Heirs: - All those persons who are related to propositus
through blood but could not be included as heirs in the class of Sharers or of Residuaries,
are called distant kindred.32 If a propositus has neither Sharers nor Residuaries, the
properties are inherited by his Distant Kindred. Distant Kindreds cannot inherit in
presence of any Sharer or Residuary.33 The heirs included in this class are also termed as
uterine heirs.

(B) Subsidiary Classes: -

26
Mahomed Hussain v. Aishabai, AIR 1935 Bom 84.
27
Sharifa Bibi v. Ghuam Mohd, 15 Mad 43.
28
Supra note 20 at 209.
29
Abdul Karim v. Abdul Qayum, 23 All 324.
30
Matloob Hassan v. Kalawati, AIR 1933 All 934.
31
Bayabai v. Bayabai, AIR 1942 Bom 328.
32
Rahman v. Uthumansa, AIR 1925 Mad 997.
33
Sujathi Bi v. Fathima Bi, AIR 2000 Mad 484.

pg. 6
Besides the above-mentioned three classes of heirs, there are four more categories of legal heirs.
The heirs included in any of the following classes are called subsidiary heirs and inherit only in
exceptional cases;

1. Successor by contract
2. Acknowledged kinsman
3. Universal legatee, and
4. The State (through the process of escheat).

SCHEME OF DISTRIBUTION: -

In the distribution of property among legal heirs of a Sunni propositus, the following scheme is
followed. First of all, it is ascertained as to who are the Sharers (Quranic heirs) of the deceased.
After ascertaining the Sharers, their respective shares, which are already fixed for them, are
allotted to each of them.34 If the whole property exhausts after distribution of the shares among
each of them, the process of distribution does not proceed further.35

But, if there still remains some property, then the second step is to distribute the “remaining
property” (residue) among the Residuaries who constitute Class II of legal heirs. However,
where a propositus has no Sharers at all, the whole property is inherited directly by the
Residuaries.36 If the propositus has neither any Sharer’ nor any Residuary then, in the third
instance, the property is distributed among the Distant Kindreds.37

It is to be noted that a Distant Kindred cannot inherit in presence of any heir belonging to the
class of Sharers or Residuaries.38 Where a propositus has no heir belonging to any of the three
principal classes (although such cases are rare) the property devolves directly upon the
successive subsidiary heirs, one by one in the order of priority.39

34
Supra note 15 at 1251.
35
Kunhi Avullah v. Kunhi Avula, AIR 1964 Ker 201.
36
Muhamad Junaid v. Aulia Bibi, 42 All 497.
37
Supra note 9 at 399.
38
Supra note 10 at 1419.
39
Mazbar Hussain v. Bodha Bibi, AIR 1978 SC 21.

pg. 7
In other words, if a propositus has no Sharer, Residuary or a Distant Kindred as his heir, his
property is inherited by a successor by contract, if any, and in his absence, by an acknowledged
kinsman, if there be any and, in his absence, too, it is inherited by the universal legatee if there is
such a legatee under any will left by the deceased.40

But, if there is none from among the above mentioned classes of heirs, the properties of the
deceased are ultimately inherited by the State. State is the ultimate heir of every propositus.41

However, the practical allotment of respective shares to each legal heir is not as simple as it
appears from the scheme of distribution stated above. There are various rules and exceptions
which make the distribution difficult. For instance, there are rules of exclusions under which one
heir (of the same class) may be excluded by the presence of some other heir.

In certain cases, an heir may not be totally excluded but, his share, may be reduced in presence
of some other heir. Moreover, in some cases an heir may inherit in double capacity, for instance,
father is a Sharer but, in certain cases he inherits also as a Residuary. 42 In the following lines
attempt has been made to enumerate the heirs of each class, their respective shares and, the rules
relating to the distribution of properties among them.

DISTANT KINDRED ( SPECIFIC REFERENCE) REFRAME

Class III, Uterine Heirs (Dhawū’l-Arhām) : -

No precise definition of distant kindred is available. The definition that is generally given is that
distant kindred are those relations by blood who are neither sharers nor residuaries. 43 The
expression dhawū’l-arhām means kindered and rahm in this context cannot be rendered as
womb. Thus, female agnates and cognates, male and female come under this class. These two
groups together constitute Class III of the Sunnite Heirs, so aptly designated by learned author
Ameer Ali as ‘Uterine Relations’.44

40
Abdul Hameed v. Md. Yoonus, AIR 1999 SC 455.
41
Venkat Rao v. Namdeo, AIR 1931 PC 285.
42
Ibrahim ShahMohamed v. Noor Ahmed Noor Mohd., AIR 1984 Guj 126.
43
RAM SEY’S MOHUMMDAN LAW OF INHERITANCE 65 (5th ed. 2012).
44
Supra note 9 at 388.

pg. 8
In the absence of the sharers and the residuaries, the estate, devolves on the distant kindred.
There is only one case in which the distant kindred inherit along with a sharer. When the only
surviving Sharer is a husband or a wife and there is no residuary then the husband or wife takes
his or her share, and the rest of the estate goes to the distant kindred.45 Howerver, Shafi'is and
Malikis sects of Muslims do not treat them as heirs at all. The distant kindred are divided into
four subclasses which are mentioned below.46

CLASSIFICATION OF UTERINE HEIRS : - Broadly speaking there are four kinds of distant kindred
to whom property devolves.

Group I, Descendants: -

1. Daughter’s children and their descendants.

2. Children of son’s daughters, however low so ever, and their descendants, ad infinitum.

Group II, Ascendants: -

1. False grandfathers, how high so ever.

2. False grandmothers, how high so ever.

Group III, Collaterals: -

(A) Descendants of Parents.

1. Full brother’s daughters and their descendants.

2. Consanguine brother’s daughters and their descendants.
3. Uterine brother’s children and their descendants and remoter relations.

(B) Descendants Of Immediate Grandparents (True As Well As False).

1. Full paternal aunt and her descendants.

2. Consanguine paternal aunt and her descendants.
3. Uterine paternal uncles and aunts and their descendants.
4. Full paternal uncle’s daughters and their descendants.
5. Consanguine paternal uncle’s daughters and their descendants.
45
Sadik Hussain v. Hashim Ali, AIR 1997 SC 271.
46
Supra note 15 at 1787.

pg. 9
 6. Uterine paternal uncle’s children and their descendants; and remoter relations.

RULE OF EXCLUSION: -

In order to regulate the number of relations who might inherit together, the doctrine of hujub or
exclusion is applied.47 The son, father, husband, daughter, mother and the wife are never totally
excluded. Exclusion is based on two principles.

1. A person who is related to the deceased through another is excluded by the latter, for
example, the father excludes the grandfather, this principle is extended to the residuaries
so as to give preference to the proximity of degree, for instance, a son excludes another
son's son.48 Secondly, the closest in blood excludes the others. A relation of full blood
always inherits in preference to a relation by the father only. Thus a brother excludes a
consanguine brother or sister. There is an exception to the first rule, namely that the
mother does not exclude brothers and sisters and the second rule is subject to the
exception that uterine relations are not excluded on that ground.

2. Exclusion may sometimes be partial. There is also a general rule that when the deceased
leaves behind a male and a female heir of the same class and degree, the latter will get
half of the former.

On these rules of exclusion Sir William Macnaghten says:

In these provisions we find ample attention paid to the interests of all those whom nature
places in the first rank of our affections; and indeed it is difficult to conceive any system
containing rules more strictly just and equitable.49

PRINCIPLES OF DISTRIBUTION AND EXCLUSION: -

Rule 1.

Members belonging to Class III succeed only in the absence of members of Class I and Class II.
They also succeed if the only surviving member in Class I is the husband or the widow of the

47
AshrafAli v. Mohammad Ali, (1946) 48 Bom LR 642.
48
Supra note 9 at 402.
49
Id. at 389.

pg. 10
deceased. The Uterine heirs are divided into three groups: (I) descendants, (II) ascendants, (III)
collaterals; group (I) excludes group (II) and group (II) excludes group (III).50

Rule 2.

Among descendants, priority is determined by the application of the following two fundamental
rules:

1. The nearer in degree excludes the more remote. For example, a daughter’s son or a
daughter’s daughter inherits in preference to a son’s daughter’s son. The first two are two
degrees removed, and the last is three degrees removed from the deceased, and therefore
he is excluded.

2. Where the degree is equal the children of Quranic and Agnatic Heirs are preferred to
those of Uterine Heirs. For instance, a son’s daughter’s son, being the child of a Quranic
Heir- the son’s daughter- is preferred to the daughter’s daughter’s son, who is the son of a
Uterine Heir.

ORDER OF PRIORITY: -

The general order of succession is according to their classification, the first class occupying (the)
first and so on. Among the individuals of the various classes, succession is regulated by
proximity to the deceased, thus, the nearer in degree always excluding the more remote.

RULES AMONG DISTANT KINDRED: -

Class I: Descendants: -

In this class, the order of priority is:

1. Daughter’s children.
2. Son’s daughter’s children.
3. Daughter’s grandchildren, and

50
Supra note 9 at 405.

pg. 11
 4. Son’s son’s daughter’s children and the remoter heirs.

It is to be noted that heirs of a group are entitled to inherit strictly according to the order of
succession given above. That is to say, relations in (ii) above may inherit only in absence of
relations in (i) and so on. Allotment of the shares among Distant Kindreds of this class
(descendants) is made in accordance with the following rules:

Rule (1): -

Where the intermediate ancestor of the claimants are of similar sex, the property is divided
among them as per capita subject to the general rule that share of a male is double the share of
female. For example, if the Distant Kindreds are (a) daughter’s son (b) daughter’s daughter, the
sex of intermediate ancestor of both of them is the same.

But, as the claimants themselves differ in sex, therefore, the property is distributed among the
male and female claimants in the ratio of 2: 1.

Similarly, where the Distant Kindreds are (a) daughter’s son’s son and (b) daughter’s son’s
daughter, the estate would devolve as under:

pg. 12
Here the intermediate ancestor of the claimants is son. Therefore, the property is to be divided
between the claimants in the ratio of 2: 1 as they differ in sex.

Rule (2): -

Where the intermediate ancestor of the claimant (distant kindred) differs in sex, the property is
distributed according to following rules:

(a) When there are two Distant Kindreds one claiming through one line and the other claiming
through another line then, the following method is applied. Beginning from propositus, one has
to stop at the first line of descent in which the sexes of intermrediate ancestors is different.

At this stage, the shares are allotted to these ancestors. Now, the same shares descend to the
claimants. For example, the Distant Kindreds are (a) daughter’s son’s daughter and (b)
daughter’s daughter’s son.

Here, we find that ancestors differ in their sex in the second line. At this stage we have to divide
the property among son and daughter in the ratio of 2: 1. Now, the descendant of son would get
son’s share and the descendant of daughter would get her share. Thus, the daughter’s son’s
daughter would get 2/3 and daughter’s son would get 1/3.

(b) When there are three or more Distant Kindreds claiming through different line of descent, the
rule is to stop at the stage where the sexes of the intermediate ancestor differ and to assign the
shares to male and female ancestors in the ratio of 2: 1; but unlike (a) above the individual share
of each ancestor does not descend to his or her descendants.

The collective share of all the male ancestors will be divided among all the descendants claiming
through them, and the collective share of all the female ancestors will be divided among their

pg. 13
descendants.51 This rule may be illustrated by the following example. A Muslim dies leaving (a)
daughter’s son’s daughter (b) daughter’s daughter’s son and (c) daughter’s daughter’s daughter.

Here, the ancestors differ in sexes in the second line of descent. In this line we find one male and
two females. Applying the general rule that share of a male is double the share of a female, we
may distribute the property at this stage. Thus we find that shares of the ancestors of this line are
as under:

Now, we find that in the II line of descent, the son (i.e. daughter’s son) stands alone, therefore
his share (1/2) descends to his daughter (i.e. daughter’s son’s daughter). Again, we find that the
collective share of two daughters is 1/2. This property is to be divided among the son (daughter’s
daughter’s son) and the daughter (daughter’s daughter’s daughter) in the ratio of 2: 1. Thus,
finally the shares are:

Daughter’s son’s daughter 1/2 or 3/6

Daughter’s daughter’s son 2/3 of 1/2 = 2/6

Daughter’s daughter’s daughter 1/3 of 1/2 = 1/6

51
Supra note 15 at 1456.

pg. 14
Class II: Ascendants: -

In the absence of Distant Kindreds of Class I, the estate devolves upon Class II of the Distant
Kindreds which consists of the ascendants of the propositus. The property is distributed among
the Distant Kindreds of this group in the following order of succession:

1. Mother’s father.
2. Father’s mother’s father and monther’s mother’s father in the ratio of 2: 1.
3. Mother’s father’s father and mother’s mother’s father in the ratio of 2: 1.

The property among the above mentioned relations is distributed in accordance with the
following rules: -

Rule (1): -

The heir who is nearer in degree excludes the remoter heir.

Rule (2): -

Among the claimants of the same degree, those connected with the propositus through sharers
are preferred over those who are connected through Distant Kindreds.

Rule (3): -

Where the claimants belong to the paternal as well as to maternal side, 2/3 is assigned to the
paternal side and 1/3 to the maternal side. Thereafter, the share assigned to the paternal side (2/3)
is divided among the ancestors of the father and the share assigned to the maternal side (1/3) is
divided among the ancestors of the mother.

Class III: Collaterals: Descendants of Parents: -

The descendants of brothers and sisters, who are neither Sharers nor Residuaries, are included in
Class III of the Distant Kindreds. In the devolution of estate among the heirs of this class,
following rules are applicable:

pg. 15
Rule (1): -

The nearer in degree excludes the remoter. For example, the children of the brothers and sisters
being nearer in degree exclude the grand children of such brothers and sisters

Rule (2): -

Where the claimants belong to the same degree of relationship, the children of Residuaries are
preferred to the children of Distant Kindreds. Thus, a brother’s son’s daughter (i.e. child of the
Residuary, brother’s son) is preferred to sister’s daughter’s son (i.e. child of a distant
kinswoman, sister’s daughter).

Rule (3): -

Among the claimants of the same degree of relationship (who are not excluded under Rule (2) as
stated above), the descendants of full brother exclude the descendants of consanguine brothers
and sisters.

However, the descendants of full sisters do not exclude the descendants of consanguine brothers
and sisters and get the residue. The descendant of full or consanguine sisters also does not
exclude the descendants of the uterine brothers and sisters. They inherit simultaneously.

Class IV: Collaterals: Descendants of Ascendant how high so ever: -

This category of Distant Kindreds consists of uncles (or aunts) and the descendants of the uncle
and aunts. It may be noted that practically the cases relating to the devolution of estate among the
Distant Kindreds of this class are rare.

A detailed account of the rules of distribution of estate among the heirs of this category has,
therefore, been avoided. Cases relating to Uterine Heirs of Group III and IV arise but rarely and
no new principles of social justice are established or new canons of juristic reasoning
advanced.52

52
TAHIR MAHMOOD, MUSLIM LAW INDIA 232 (22nd ed. 2009).

pg. 16
CONCLUSION: -

The law of succession in India falls within the realm of personal law. Due to this, we have so
many different succession laws, each purporting to reflect the diverse and differing aspirations,
customs, and mores of the community to which the statute in question applies. The primary
source of the Muslim law of succession flows from the Holy Koran. In addition, the Ijmas, the
Sunnas, and the Qiyas, from all of which rules pertaining to succession and inheritance can be
gleaned.53

The Muslim law of inheritance is a superstructure constructed on the foundation of pre-Islamic

customary law of succession. The divine justness and equitability of the Islamic laws of
inheritance have been correctly appreciated by many non-Muslim scholars such as Professor
Almaric Rumsey (1825-1899) of King's College, London, the author of many works on the
subject of the Muslim law of inheritance and a barrister-at-law, who stated that the Muslim law
of inheritance, "comprises beyond question the most refined and elaborate system of rules for the
devolution of property that is known to the civilized world.54

To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of
inheritance that operated within the Arabian Peninsula, prior to the revelation of the Quranic
injunctions on inheritance. Although we do not have the exact details of the system that operated
prior to the Quranic revelations we do know that the system of inheritance was confined to the
male agnate relatives ("asaba") of the deceased.55 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

53
Supra note 10 at 257.
54
Supra note 9 at 379.
55
Supra note 52 at 1174.

pg. 17
customary agnatic system entirely but merely to modify it with the objective of improving the
position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation
of the Quranic law superimposed upon the old customary law to form a complete and cohesive
system.

pg. 18