INHERITANCE UNDER MUSLIM LAW

Comprehensive Exam Study Notes

Sunni Law | Shia Law | Sharers | Residuaries | Disqualifications

1. FOUNDATIONAL CONCEPTS

1.1 No Concept of Joint Family

• Muslims do NOT recognise the concept of Joint Family as a separate entity.
• No distinction between separate property and joint family property.
• Two sons inheriting their father's property take it as tenants-in-common, NOT as joint tenants.
• No right by birth (vested interest) in the father's property — unlike Hindu law.
• Exclusive ownership with full powers of alienation is an essential feature under Muslim Law.

1.2 Single Scheme of Succession

• Muslim law provides ONE unified scheme of succession irrespective of the sex of the intestate.
• Blood relation (consanguinity) is the PRIMARY principle — marital relations do NOT succeed.
• A Muslim woman has ABSOLUTE rights in inherited property (as daughter, sister, or mother) with full
powers of alienation.
• Even after marriage, her succession rights and control over inherited property are NOT affected.
• Source of acquisition of property is irrelevant for succession — a woman's blood relations are her heirs,
not her husband's relatives.

1.3 Heritable Property

• A Muslim cannot bequeath more than 1/3rd of the estate without the consent of heirs.
• Even with a Will, 2/3rd of property goes by intestate succession (unless heirs confirm excess bequest).
• If no Will — entire property goes by intestate succession.
• Before net assets are calculated, the estate pays: funeral expenses, unpaid debts, unpaid dower, etc.
• No distinction between movable/immovable or separate/ancestral property.

1.4 No Right by Birth

• Muslim law does NOT recognise ancestral or coparcenary property.
• No right by birth in father's property is recognised in favour of the son during father's lifetime.
• While father is alive: he has full powers of alienation (gift, sale, etc.).
 • Son has only spes successionis — a hope or chance to succeed (not a vested right).

TWO CONDITIONS for spes successionis to crystallise into inheritance: (a) The son survives the
father (b) There is property available for succession

2. DISQUALIFICATIONS FROM INHERITANCE

2.1 Difference of Religion

• Fundamental principle: Only a Muslim can inherit from a Muslim intestate.
• A non-Muslim CANNOT inherit from a Muslim intestate.
• Caste Disabilities Removal Act, 1850: Inheritance rights of a convert are PROTECTED — a Muslim heir
converted to another religion CAN still inherit from a Muslim intestate.
• However, descendants of the convert are disqualified.

2.2 Homicide
• A person causing the death of another cannot inherit from them (testamentary or intestate).

School Rule on Homicide

Sunni Law Applied STRICTLY — disqualification applies whether death was intentional or
accidental.

Shia Law Disqualification operative ONLY where death was caused intentionally.

2.3 Illegitimate Child

• Child born after 6 months from date of marriage = presumed legitimate (unless premature, or father
disclaims by lian = accusation of adultery).
• Child born within 6 months of marriage = illegitimate. Confusion about date/time of Nikah can be cleared
by father's acknowledgement of paternity.
• Acknowledgement cannot make an illegitimate child legitimate — only clears confusion about timing of
marriage.

School Rule for Illegitimate Child

Sunni Law Related to mother — inherits from mother and her relations. Does NOT inherit
from father or his relations.

Shia Law Does NOT inherit from either parent or any of their relatives.

2.4 Daughter — Exceptional Cases

• Generally, daughters can inherit under both Sunni and Shia law.
• Exception: In some communities (e.g., Jammu & Kashmir), local customs/statutes may exclude
daughters.
• In some J&K communities: daughter can succeed only in absence of all male agnates.
 • In others: daughter can inherit only if she is a Khananashin (meaning: one who stays at home).

2.5 Special Marriage Act, 1954

• If a Muslim marries (or registers their Muslim-law marriage) under the Special Marriage Act, 1954 —
Muslim inheritance law does NOT apply.
• Instead, Indian Succession Act, 1925 governs the succession.

Key Point: Even if the marriage was originally contracted under Muslim law, if it is subsequently
registered under SMA 1954 — succession law changes to the Indian Succession Act 1925.

3. SUNNI LAW OF INHERITANCE

3.1 Classification of Heirs (Sunni)

Under Sunni law, heirs are divided into:

Category Sub-category Description

Related Heirs Sharers (Quranic Heirs) Fixed fractional shares; introduced by Quranic
revelations

Related Heirs Residuaries (Asaba) No fixed share; take the residue after sharers

Related Heirs Distant Kindred All cognates except sharers; inherit only if no
residuary present

Unrelated Heirs Successor by Contract Gets property under a contract with the
deceased

Unrelated Heirs Acknowledged Kinsmen Person of unknown descent acknowledged by

deceased

Unrelated Heirs Universal Legatee Recipient of whole property under a Will

3.2 General Principles

(a) Rule of Exclusion

• Nearer in degree EXCLUDES the remoter.
• e.g., Father excludes paternal grandfather; Son excludes son's son.
• Applies to sharers, residuaries, and distant kindred.
• An heir related through another person is excluded in the presence of that intermediate person.

(b) Return (Radd)

• If no residuary is present, the residue returns to the SHARERS in proportion to their shares — does NOT
go to distant kindred.
• Exception: Surviving spouse (husband/wife) is NOT entitled to radd so long as any other sharer or even
distant kindred is present.
 (c) Doctrine of Increase (Aul)
• Sharers are entitled to fixed shares — but sometimes the total may exceed unity (1).
• When this happens, shares of ALL sharers are proportionately reduced.

Example of AUL: If Wife = 1/8, Daughter = 1/2, Mother = 1/6, Full Sister = 1/2 — total exceeds 1. All
shares are proportionately reduced under Aul.

4. THE 12 SHARERS (SUNNI LAW)

There are 12 Sharers — 8 females and 4 males. The heritable property is distributed to sharers first.

4.1 The 8 Female Sharers

# Sharer Normal Share Normal Share Key Conditions & Variations
(Alone) (With others)

1 Wife/Widow 1/4 1/8 (shared 1/4 in absence of child or child of son; 1/8 in their
equally among presence
wives)

2 Mother 1/6 1/6 1/6 if child, child of son, or 2+ siblings present;

1/3 otherwise; modified rule if spouse + father
also present

3 True 1/6 1/6 (shared) Takes if no mother or nearer true grandmother;

Grandmother becomes residuary if no child or child of son and
no father/nearer grandfather

4 Daughter 1/2 2/3 (all daughters In absence of son; becomes residuary in

share) presence of a son

5 Son's Daughter 1/2 2/3 In absence of son, daughter, higher son's

(how low so ever) son/daughter; takes 1/6 to complete 2/3 if one
daughter present

6 Full Sister 1/2 2/3 In absence of child, child of son, father,

grandfather, full brother; becomes residuary with
full brother or with daughters

7 Consanguine 1/2 2/3 In absence of child, child of son, father,

Sister grandfather, full brother/sister, consanguine
brother; 1/6 if one full sister present

8 Uterine Sister 1/6 1/3 In absence of child, child of son, father, true
grandfather

4.2 The 4 Male Sharers

# Sharer Normal Conditions & Variations
Share

1 Husband 1/4 1/4 in presence of child or child of son; 1/2 in their absence

2 Father 1/6 1/6 as sharer in presence of child/child of son; inherits as residuary in their
absence; can be both sharer AND residuary
 # Sharer Normal Conditions & Variations
Share

3 True 1/6 Inherits as residuary in absence of child/child of son (if no father or nearer
Grandfather true grandfather); True grandfather = no female intervenes in the line

4 Uterine Brother 1/6 1/3 if two or more; in absence of child, child of son, father, or true
grandfather

TRUE GRANDFATHER definition: A male ancestor between whom and the deceased NO FEMALE
intervenes. e.g., Father's father, Father's father's father. TRUE GRANDMOTHER: No false
grandfather (male through female line) intervenes between her and the deceased.

5. PRIMARY HEIRS & SUBSTITUTES (SUNNI)

5.1 The 5 Primary Heirs

These 5 heirs invariably/always inherit the property — they cannot be excluded:

# Primary Heir Nature Note

1 Surviving Spouse Sharer Always inherits — share varies based on other heirs
(Husband/Wife)

2 Son Residuary Always inherits — rules designed so he invariably gets

property

3 Daughter Sharer Always inherits (barring exceptional custom)

4 Mother Sharer Always inherits

5 Father Sharer/ Always inherits — nature depends on who else is present

Residuary/Both

5.2 Substitutes for Primary Heirs

• In absence of primary heirs, substitutes take their place.
• Heirs excluded by primary heirs are also excluded by the substitutes.

Primary Heir Substitute

Father True Grandfather (how high so ever)

Son / Daughter Child of a Son (son's son or son's daughter)

Mother True Grandmother (how high so ever)

 6. RESIDUARIES (ASABA) — SUNNI LAW

6.1 Key Rules

• Residuaries are primarily MALE AGNATES (related through males only).
• Some female sharers can inherit AS RESIDUARIES in specific circumstances.
• No fixed share — residuary takes whatever remains after sharers.
• If no sharer is present, residuaries take the ENTIRE property.
• So long as one residuary is present, property does NOT go to Distant Kindred.

Exception to Radd: If no residuary but sharers are present — residue returns to sharers. If surviving
spouse + other sharers/distant kindred — spouse has NO right in the residue.

6.2 Categories of Residuaries

Category 1: Descendants
• Son → Son's son how low so ever (rule of exclusion: nearer excludes remoter)
• If Daughter (D) + Son's son (SS) present: D takes as sharer (1/2), SS as residuary.
• If Son's Daughter (SD) + Son's son (SS): both at same level — both take as residuaries; SD = 1/2 of SS.

Category 2: Ascendants
• Father — can be sharer, residuary, or BOTH.
• In presence of only Ds or SDs (no son/son's son): Father is both sharer (1/6) AND residuary.
• True Grandfather — only in absence of father; inherits same way as father.

Category 3: Descendants of Father

1. Full Brother + Full Sister
2. Consanguine Brother
3. Sons of Full and Consanguine Brothers

Full Brother: Residuary in absence of son, father, and true grandfather.

Full Sister as residuary:
◦ In presence of Full Brother: Full Sister = 1/2 of Full Brother's share.
◦ In absence of Full Brother AND all preceding residuaries + daughters/son's daughters: Full Sister
takes residue.

Consanguine Brother: Residuary in absence of all preceding male residuaries.

Consanguine Sister as residuary:
◦ In presence of Consanguine Brother: Csis = 1/2 of CBr.
◦ When daughters or son's daughters are present (no full brother).

Category 4: Descendants of True Grandfather (how high so ever)

• Full Paternal Uncle
• Consanguine Paternal Uncle
 • Full Paternal Uncle's Son
• Consanguine Paternal Uncle's Son
• Their sons, and further male descendants... continuing down the line.
• Male descendants of remoter True Grandfathers.

7. DISTANT KINDRED — SUNNI LAW

7.1 Who are Distant Kindred?

• All COGNATES (related through females at some point) EXCEPT sharers.
• They inherit only when NO residuary is present.
• Rule of Exclusion applies within this category.

7.2 Categories of Distant Kindred

4. Descendants: Daughter's descendants (daughter's son, daughter's daughter, etc.)
5. Ascendants: False Grandmothers and False Grandfathers (False grandfather = male ancestor through
whom a female intervenes, e.g., mother's father)
6. Descendants of Parents: - Daughters of full/consanguine brothers and sisters - Their descendants
how low so ever - Descendants of uterine brothers and sisters how low so ever
7. Descendants of Immediate/Remote Grandparents: - Paternal and maternal uncles and aunts of the
deceased and their descendants - Paternal and maternal uncles and aunts of grandfather of deceased
and their descendants

8. UNRELATED HEIRS & DOCTRINE OF ESCHEAT

8.1 Three Types of Unrelated Heirs

Type Description Condition

Successor by Contract Gets property under a contract entered with Priority order: first among unrelated
the deceased for payment of a monetary heirs
liability

Acknowledged Kinsman Person of unknown descent whom the Subject to 1/3 bequeathable limit;
deceased acknowledged as a kinsman (e.g., 'A applies if no successor by contract
acknowledged X to be his brother')

Universal Legatee Person to whom the whole property is given Last resort; if all else fails
under a Will

8.2 Doctrine of Escheat

If there is no sharer, no residuary, no distant kindred, and no unrelated heir — the property
ESCHEATS to the State.
 9. SHIA LAW OF INHERITANCE

9.1 Classification of Heirs

• Consanguine Heirs — related to deceased by blood.
• Relation by marriage — husband/wife.
• Heirs are divided into 3 CLASSES — former class excludes the latter.
• Sub-groups within a class inherit TOGETHER and do NOT exclude each other.
• Unlike Sunni law, there is NO category of Distant Kindred in Shia law.

9.2 The Three Classes

Class Sub-group (a) Sub-group (b)

Class I Parents Children and lineal descendants how low so

ever

Class II All grandparents how high so ever Brothers and Sisters and their descendants how
low so ever

Class III Paternal & Maternal Uncles and Aunts of —

deceased, of his parents and grandparents
(how high so ever) and their descendants (how
low so ever)

KEY DIFFERENCE from Sunni: Under Shia law, all these classes form a unified scheme without the
sharer/residuary/distant kindred split for lineal descendants.

9.3 Shia Sharers

Category Sharers

3 Male Sharers Father, Husband, Uterine Brother

6 Female Sharers Mother, Wife, Uterine Sister, Daughter, Full Sister, Consanguine Sister

9.4 Lineal Descendants (Shia — Special Rules)

• All lineal descendants are grouped in ONE category — NOT spread across sharers/residuaries/distant
kindred (unlike Sunni).
• Rule of exclusion applies: nearer degree excludes remoter.

Rule of Representation (Shia — unique rule):

• Lineal descendants of one child take the share their parent would have taken, divided among themselves
— males getting double the share of females.
• Applicable when heirs are descendants of two or more children but in the same degree of relationship.
• Succession among lineal descendants is PER STIRPES (by stock) and NOT per capita (by head).
EXAMPLE: A dies. His son B (predeceased) had 2 sons, and his daughter C (predeceased) had 1
daughter. B's 2 sons take B's share; C's daughter takes C's share. Each group divides their parent's
share — this is per stirpes.

9.5 Doctrine of Return — Shia

• If residue remains after sharers are satisfied but NO residuary exists, the excess returns to the
SHARERS.
• This is the same concept as Radd in Sunni law, but with important Shia-specific rules:

8. Surviving spouse NOT entitled to any return if any other heir is present. (But if no other heir/sharer —
spouse can take the return.)
9. Mother CANNOT claim return if father and daughter are present AND any of these conditions hold: (a)
Two or more full or consanguine brothers, OR (b) One full/consanguine brother + two full/consanguine
sisters, OR (c) Four full or consanguine sisters. → In such cases, surplus goes to father + daughter in
proportion to shares.
10. In presence of full sister, uterine brother or uterine sister CANNOT take surplus by return.

9.6 Doctrine of Increase — Shia

CRITICAL DIFFERENCE: Shias do NOT recognise the doctrine of Aul. Instead, if total shares exceed
unity, the EXCESS is deducted specifically from the share of the DAUGHTER or the full/consanguine
sisters.

10. SUNNI vs SHIA — KEY DIFFERENCES

Point Sunni Law Shia Law

Heir Classification Sharers, Residuaries, Distant Kindred, 3 Classes (Class I, II, III) + Spouse; NO
Unrelated Heirs Distant Kindred

Number of Sharers 12 (8 female, 4 male) 9 (6 female, 3 male)

Lineal Descendants Spread across sharers, residuaries, Grouped in ONE unified category
distant kindred

Rule of Representation Not recognised Recognised — per stirpes succession

Per Capita/Per Stirpes Per capita Per stirpes (per stock)

Doctrine of Aul (Increase) Recognised — all shares NOT recognised — excess deducted
proportionately reduced from daughter/sisters' shares

Doctrine of Radd (Return) Recognised — spouse excluded from Recognised — with specific additional
radd exceptions

Homicide Disqualification Applies strictly — intentional or Only for intentional killing

accidental

Illegitimate Child Inherits from mother's side only Inherits from neither parent nor their
relatives

Distant Kindred Third tier of inheritance No such category exists

 11. TABLE OF SHARERS — QUICK REFERENCE
(Based on the Table of Sharers from Family Law Lectures II)

11.1 Primary Sharers

Sharer Alon With Normal Condition Variation
e Othe
rs

Husband 1/4 1/4 In presence of child or child 1/2 — in absence of child or child of son
of son

Wife/Wives 1/4 1/8 In presence of child or child 1/4 — in absence of child or child of son
(1/8 (shar of son
toget ed)
her)

Daughter 1/2 2/3 In absence of son In presence of son: becomes residuary

Father 1/6 1/6 In presence of child or child In absence of child/child of son: inherits as
of son residuary

Mother 1/6 1/6 In presence of child/child of 1/3 in absence of child/child of son (with not
son OR 2+ siblings more than 1 brother/sister); reduced if
spouse + father present

True 1/6 1/6 Presence of child/child of In absence of child/child of son: inherits as

Grandfather son, and in absence of residuary (if no father/nearer grandfather)
father

True 1/6 1/6 Maternal: takes in absence Paternal: in absence of mother, father,
Grandmother (shar of mother and nearer true nearer true grandmother, nearer true
ed) grandmother grandfather

11.2 Collateral Sharers

Sharer Alon With Normal Condition Variation
e Othe
rs

Full Sister 1/2 2/3 In absence of child, child of Becomes residuary in presence of full
son, father, grandfather, full brother
brother

Consanguine 1/2 2/3 In absence of child, child of 1/6 if one full sister (to complete 2/3);
Sister son, father, grandfather, full becomes residuary with consanguine
brother/sister, consanguine brother
brother

Uterine 1/6 1/3 In absence of child, child of —

Brother/Sister (shar son, father, or true
ed) grandfather

Son's Daughter 1/2 2/3 In absence of son, daughter, 1/6 if one daughter present (to complete
higher son's son/daughter 2/3); becomes residuary with son's son
 12. MNEMONICS & EXAM TIPS

12.1 Remember the 12 Sunni Sharers

8 FEMALE SHARERS: "W-M-G-D-SD-FS-CS-US" Widow, Mother, (True) Grandmother, Daughter,

Son's Daughter, Full Sister, Consanguine Sister, Uterine Sister 4 MALE SHARERS: "H-F-G-UB"
Husband, Father, (True) Grandfather, Uterine Brother

12.2 Remember the 5 Primary Heirs

"S-S-D-M-F" Spouse (surviving), Son, Daughter, Mother, Father These 5 ALWAYS inherit — can
never be excluded!

12.3 Order of Priority (Sunni)

11. Pay estate liabilities (funeral, debts, dower)
12. Distribute to SHARERS (fixed shares)
13. Residue to RESIDUARIES
14. If no residuary → Radd (return) to sharers [except spouse]
15. If no sharer either → DISTANT KINDRED
16. If none above → UNRELATED HEIRS
17. If nothing → ESCHEAT to State

12.4 Key Definitions to Remember

Term Meaning

Asaba Residuaries — male agnates who take residue after sharers

Radd / Return Residue returned to sharers when no residuary exists

Aul / Increase Proportionate reduction when total shares exceed unity (Sunni only)

Spes successionis Mere hope/chance to succeed; not a vested right during father's lifetime

Lian Husband's accusation of adultery to disclaim paternity

Khananashin One who stays at home (relevant to J&K exceptions)

True Grandfather Male ancestor with no female intervening in the line

False Grandfather Male ancestor with a female intervening (e.g., mother's father)

Per stirpes Succession by stock/branch (Shia); descendants take parent's share

Per capita Succession by head (Sunni); each heir takes individually

Escheat Property passes to State when no heir of any category exists

Tenant-in-common Co-ownership where each owns a defined share (Muslim law)

Joint tenant Co-ownership with right of survivorship (NOT applicable in Muslim law)
12.5 Common Exam Pitfalls
• Father can be BOTH a sharer AND a residuary simultaneously — when only daughters or son's
daughters inherit alongside him.
• Son is technically a RESIDUARY, not a sharer — but always inherits due to design of the rules.
• Wife/wives share 1/8 equally among them, not 1/8 each.
• Uterine brother/sister = same MOTHER, different fathers; Consanguine = same FATHER, different
mothers.
• True grandfather is excluded by true grandfather nearer to the deceased — not just by father.
• In Shia law, Aul does NOT apply — excess comes from daughter/sisters' shares only.
• Radd/Return: Under BOTH Sunni and Shia, surviving spouse is generally excluded from return if other
heirs exist.
• Distant kindred exists ONLY in Sunni law — Shia has no such category.
• Rule of Representation applies in Shia, NOT in Sunni law.

Inheritance Under Muslim Law — Comprehensive Study Notes | Prepared from Family Law Lectures II & Table of Sharers