INHERITANCE (MIRĀTH) UNDER MUSLIM LAW
I. CONCEPT AND PHILOSOPHY OF MUSLIM INHERITANCE
Inheritance under Muslim law is fundamentally different from other personal
laws because it is not a human-made system, but one claimed to be divinely
ordained. For this reason, Muslim inheritance law leaves very little discretion
either to the deceased or to the heirs.
Key philosophical foundations:
1. Succession is compulsory
→ Heirs inherit by operation of law, not by choice.
2. Succession is immediate
→ The moment a Muslim dies, his estate vests in the heirs.
3. No heir can be excluded by will
→ Testamentary devolution of property is limited to one-third of
the estate of the testator/deceased.
4. Inheritance is individual, not collective
→ No joint family or coparcenary exists.
5. Shares are fixed, not flexible
II. OPENING OF SUCCESSION
Succession opens when:
the propositus (deceased) dies, and
the heir is alive at that moment.
Who is considered alive?
A living person at the time of death
A child in the womb, provided he is born alive
Once succession opens:
shares vest immediately,
no subsequent event can reopen distribution.
MUSLIM LAW NOTES BY KAUSHAL SIR
III. ORDER AND CLASSES OF HEIRS
Sunni Muslim law recognises three distinct classes of heirs, arranged in a
strict hierarchy:
1. Sharers (Ashab-ul-Furud)
2. Residuaries (Asabah)
3. Distant Kindred (Zaw-ul-Arham)
They inherit in this order only, never together indiscriminately.
IV. SHARERS (ASHAB-UL-FURUD)
A. Meaning and Importance
Sharers are heirs whose shares are fixed and predetermined. Their right is
prior and absolute.
No distribution can occur unless the sharers’ shares are first satisfied.
B. Who Are Sharers?
The following are recognised sharers:
Husband
Wife
Father
Mother
Daughter
Son’s daughter
Full sister
Consanguine sister
Uterine brother and sister
Each has a specific share, subject to increase or reduction depending on
circumstances.
MUSLIM LAW NOTES BY KAUSHAL SIR
D. Governing Rules for Sharers
1. Sharers always inherit first
2. Their shares may:
o increase (awl),
o decrease,
o or convert into residuary shares
3. They may be partially excluded, but rarely totally excluded
V. RESIDUARIES (ASABAH)
A. Meaning
Residuaries are heirs who take what remains after sharers are satisfied. They
have no fixed share.
If nothing remains, they get nothing.
B. Types of Residuaries
1. Residuary by Himself
Son
Son’s son
Father
Brother
2. Residuary by Another
Daughter with son
Son’s daughter with son’s son
Sister with brother
3. Residuary with Another
Full sister with daughter
MUSLIM LAW NOTES BY KAUSHAL SIR
Consanguine sister with daughter
C. Rules Governing Residuaries
Nearer excludes remoter
Male gets double the share of female
Presence of a residuary excludes distant kindred
VI. DISTANT KINDRED (ZAW-UL-ARHAM)
A. Meaning
Distant kindred are blood relatives who are:
neither sharers,
nor residuaries.
Examples:
Daughter’s children
Sister’s children
Maternal uncles and aunts
B. When Do They Inherit?
Only when:
no sharer exists, and
no residuary exists.
If even one sharer or residuary exists, distant kindred are completely
excluded.
VII. EXCLUSION OF HEIRS
A. Total Exclusion
Occurs when a nearer heir completely blocks a remoter one.
Examples:
MUSLIM LAW NOTES BY KAUSHAL SIR
Son excludes grandson
Father excludes grandfather
B. Partial Exclusion
Occurs when an heir’s share is reduced.
Examples:
Mother reduced from 1/3 to 1/6
Husband reduced from 1/2 to 1/4
Once excluded, an heir cannot revive.
VIII. DOCTRINE OF REPRESENTATION
Under Sunni law:
Doctrine of representation does not apply
Children of a predeceased heir do not inherit
This is a crucial distinction from Hindu law.
IX. DOCTRINE OF AWL (INCREASE)
Meaning
When total fixed shares exceed unity, shares are proportionately reduced.
Awl:
applies only among sharers
increases denominator to adjust shares
X. DOCTRINE OF RADD (RETURN)
Meaning
When:
sharers take their fixed shares,
MUSLIM LAW NOTES BY KAUSHAL SIR
no residuary exists,
surplus remains,
→ surplus returns to sharers proportionately.
Exception: Husband and wife do not benefit from radd.
XI. LEGITIMACY AND INHERITANCE
A legitimate child inherits from:
father and mother,
both families.
An illegitimate child:
inherits only from mother,
not from putative father.
XII. TESTAMENTARY SUCCESSION
Muslim may will only 1/3 of estate
Beyond 1/3 requires heirs’ consent
Will cannot override fixed shares
MUSLIM LAW NOTES BY KAUSHAL SIR
TABLE OF SHARERS AND THEIR SHARES
Heir Fixed Conditions / Notes
Share(s)
Husband 1/2 When deceased leaves no child or
child’s descendant
1/4 When deceased leaves a child or child’s
descendant
Wife (one or 1/4 When deceased leaves no child or
more) child’s descendant
1/8 When deceased leaves a child or child’s
descendant (share divided among
wives)
Father 1/6 When deceased leaves a child or son’s
descendant
Residuary When no child or son’s descendant
1/6 + residue When only daughter or son’s daughter
exists
Mother 1/3 When no child/descendant and less
than two siblings
1/6 When child/descendant exists or two or
more siblings exist
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1/3 of residue Special case: husband/wife + father +
mother
Daughter 1/2 One daughter, no son
2/3 (jointly) Two or more daughters, no son
Residuary With son (male takes double)
Son’s Daughter 1/2 One, no son, no daughter
2/3 (jointly) Two or more, no son, no daughter
1/6 When one daughter exists
Residuary With son’s son
Excluded By son or two or more daughters
Full Sister 1/2 One, no child, no father
2/3 (jointly) Two or more, no child, no father
Residuary With full brother
Residuary (with With daughter
another)
Excluded By son, grandson, or father
Consanguine 1/2 One, no child, no father, no full sibling
Sister
2/3 (jointly) Two or more, same conditions
1/6 When one full sister exists
MUSLIM LAW NOTES BY KAUSHAL SIR
Residuary With consanguine brother
Residuary (with With daughter
another)
Excluded By son, father, or full sibling
Uterine Brother / 1/6 When one
Sister
1/3 (jointly) When two or more
Excluded By any child/descendant or father
MUSLIM LAW NOTES BY KAUSHAL SIR