Chapter 2

Shia Law of Succession

The Shia law of Succession differs basically from the sunni law. The Hanafis thought of the
super-imposition of the Koranic Heirs on the agnatic (paternal) system of succession of the
customary law in additional to modified customary law of succession or as Fyzee puts it, as
corrective of the many social and economic inequalities that prevailed then, and, therefore, held
that they read together in one harmonious scheme. The Ithna Asharis, considered the religious
text scheme of succession as a new scheme and in suppression of the customary law of
succession.

2.1 The Shia Scheme of Heirs

The Shias right of succession of the property based on two principles:

(a) Nasab- blood relationship

(i) Dhu Fard - the Koranic Heirs or Sharers
(ii) Dhu qarabat- blood relations.
(b) Sadab- special cause.
(i) zawjiyyat- status of a spouse
(ii) wala- special legal relationship1

Of these first two have become obsolete in India and the third has been replaced by the law of
escheat.

2.2 Classification of heirs:

In modern India, the heirs of a Shia muslim fall under the following classes:

I. Heirs by marriage -- husband and wife.

II. Heirs by consanguinity- sub-divided into the following-
a. (i). Parents,
(ii). Children and other lineal descendants, how low so ever.2

1
Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law Agency, law Publishers

1
 b. (i). Grandparents (both true and false) how high so ever.
(ii) Brothers and sisters and their descendants, how low so ever.
c. (i). Paternal uncles and aunts of the deceased, and of parents nd grandparents how
high so ever and their descendants, how low so ever.
III. State by Escheat.
The Shia law divides the heirs categories from the point of view of distribution of assets
into two
(i) The sharers and the descendants of the sharers, how low so ever.
(ii) The residuaries and the descendants of the residuaries how low so ever.

The Shia law does not recognises distant kindred as a separate class of heirs. All those
blood relations who are not sharers are the residuaries.3

Inheritance of Spouses:

As is apparent from the above three-fold classification of heirs in Shia law, spouses are not
placed in anyone of them. The above referred classes are jointly known as heirs by consanguinity
in Shia law, while spouses are termed as heirs by affinity. The heirs by consanguinity are also
termed as heirs by Nasab, while the heirs by affinity are heirs by Sabab. Thus, husband and wife
form an independent category similar to Sunni law which is only affected by presence or absence
of deceaseds children. If there are children of a deceased, husband or wife will inherit 1/4 or 1/8
respectively. But if a deceased dies issueless, husband or wife will have 1/2 or 1/4 respectively.
If a deceased husband leaves behind more than one wife as legal heirs, they will share jointly in
their prescribed share, i.e. 1/4 or 1/8.

2
Mulla, I., Mulla on Mohammedan Law, 1st edition, 2007, Dwivedi Law Agency, Allahabad.
3
Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3rd Edition, 2011, lexis Nexis Butterworths Wadhwa.

2
 Chapter 3

Distribution of Assets

In Shia law all sharers are not Class I heirs. They are called sharers, since the religious text
Koran allots them a definite share. All sharers do not have priority over the residuaries and the
husband and wife always inherit, and inherit with all classes of heirs.

Besides the husband/wife, the heirs for the purpose of determining priority are placed into three
classes:

1. (i). Parents
(ii) Children and other lineal descendants how low so ever: among them the nearer
excludes the remoter. Thus, son and daughter excludes sons and daughters children.
2. (i) Grandparents- both true and false, how high so ever, among them the nearer excludes
remoter, and
(ii) Brothers and sisters (among them brothers and sisters of full blood are preferred over
consanguine ones), and failing them, their descendants, how low so ever, nearer
excluding the remoter.4
3. (i). Paternal uncles and aunts of the deceased, and of his or her parents and grandparents
how high so ever and their descendants, how low so ever, and
(iii) Maternal uncles and aunts of the deceased, and his or her parents and
grandparents how high so ever and their descendants, how low so ever.5

3.1 Distribution of Assets among Class I heirs:

Koran defined all the shares under this category, in this class there are two groups of heirs,
parents and children and their lineal descendants-.

Husband husband takes of the property and it reduces to where there is a lineal
descendant.

4
Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3rd Edition, 2011, lexis Nexis Butterworths Wadhwa.
5
Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law Agency, law Publishers

3
Wife wife takes of the property but it reduces to 1/8 where there are lineal descendant.

Father father takes 1/6 share, if there is a lineal descendant. If there is none, he takes as a
residuary.

Mother mother takes 1/6 when there is: (a) lineal descendant, or (b) two or more full or
consanguine brothers, or (c) one such brother and two such sisters, or (d) four such sisters with
the father. If there are no such relations she takes 1/3.

Daughter when there is no son, she takes 1/2; when there are two or more they together take
2/3, provided there is no son. If there is a son, then she takes as residuary along with him.

Son - Son is always a residuary.

Grandchildren in the absence of children, grandchildren take the share which the son or
daughter would have taken had he or she been alive.6

Means:

(i) children of each son will take the share which the son would have taken as residuary; the
children among themselves will divide it on the basis of the rule of double portion to the
male child and one portion to the female child
(ii) (ii) children of each daughter will take the same share which the daughter would have
taken if living, either as a share or as a residuary, and will divide it among themselves on
the basis of the rule of double portion for a male and one portion for a female.

Examples:

P dies leaving behind her husband, H, father F, and mother, M. H will take as sharer, M will
take /3 as sharer F will take remaining 1/6 as residuary. Another example, P dies leaving behind
two daughters D and D1, father F and Mother M. F will take 1/6 as sharer (because of
daughters), M will take 1/6 as share and D & D1 will take 2/3 as sharer.7

6
Mulla, I., Mulla on Mohammedan Law, 1st edition, 2007, Dwivedi Law Agency, Allahabad.
7
Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law Agency, law Publishers

4
 3.2 Distribution of Assets among Class II heirs:

In the absence of class I heirs, the property devolves on class II heirs along with husband or wife,
if any. Among them, the following three situations are likely to arise:

1. The claimants may be only grandparents, how high so ever and no other relative is there. In
such a situation, when all the four grandparents are there, the paternal grandparents will take 2/3
and maternal grandparents will take 1/3. The paternal grandparents divide the 2/3 between
themselves on the basis of double portion to males, but maternal grandparents divide it equally
between themselves. If there is only one grandparent either at paternal side or maternal side, he
or she will take the entire 2/3 or 1/3 of property. If there are two grandparents on one side and
one at another side, they will take their respective shares.8

Illustration:

P dies leaving behind, a paternal grandfather FF, paternal grandmother FM and a paternal
grandmother MM. The respective shares of M and F will be 1/3 and 2/3. MM will take this 2/3,
since she is the only heir. But Fs 5/8 will go to FM and FF, FM taking 2/9 and FF taking 4/9.

2. The claimants may be only brothers and sisters, i.e., there may not be any grandparents. In
such a situation, the rules of distribution are: (a) One uterine brother or sister takes 1/6 share,
while two or more take 1/3 share. (b) In the absence of full brother, the full sister takes as sharer,
when there is only one, she takes and when there are two or more then take 2/3 each. When
there is a full brother, she takes as residuary along with him. (c) in the absence of the
consanguine brother, the consanguine sister takes as sharer, taking share when one, and 2/3
when two or more, if there is a consanguine sister takes as sharer, taking share when one, and
2/3 when two or more, if there is a consanguine brother, then she takes as residuary along with
him.9

8
http://www.shareyouressays.com/knowledge/13-general-principles-of-inheritance-under-muslim-law-in-
india/117457
9
Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3rd Edition, 2011, lexis Nexis Butterworths Wadhwa.

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Illustration:

Z dies leaving behind a uterine brother, Y, a consanguine brother, X, a consanguine sister, R and
a widow, W. W will take as a sharer, Y will take 1/6 as sharer, the residue will go to R and X,
R taking 7/36 and X taking 7/16.

3. Where there are grandparents with brothers and sisters or their descendants, after taking out
the shares of husband or wife, if any, the distribution of property will take place as per these
rules: (a) A maternal grandfather or grandmother counts for uterine brother or sister
respectively. (b) A paternal grandfather or grandmother counts for full or consanguine brother or
sister respectively. (c) if there are no grandparents, remoter grandparents would take their place.
(d) if there are no brother or sister, their descendants would take their place.10

Illustration:

P dies leaving behind a paternal grandfather, FF, and two full sisters, FD and FD1. FF will be
equal to a full brother. In view of this, FF will take 2/3 and FD and FD1 together will take 1/3.

3.3 Distribution of Assets among Class III Heirs:

In the absence of heirs of Class I and Class II, the assets of the deceased, after taking out the
share of Husband or Wife, will devolve on Class III. The Class III heirs may be divided into the
following categories in accordance with their priority:

(i) Paternal and maternal uncles and aunts of the deceased,

(ii) The descendants of (i) how low so ever, the nearer in degree excluding the remoter,
(iii) Paternal and maternal uncles and aunts of the parents,
(iv) The descendants of (iii) how low so ever, the nearer in degree excluding the remoter,
(v) Paternal and maternal uncles and aunts of the grandparents,
(vi) The descendants of (iii) how low so ever, the nearer in degree excluding the remoter,
(vii) Remoter uncles and aunts and their descendants in like order.11

10
Mulla, I., Mulla on Mohammedan Law, 1st edition, 2007, Dwivedi Law Agency, Allahabad.

11
Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law Agency, law Publishers

6
To the above order of succession one exception is recognized, viz., when only claimants are full
paternal uncles son and a consanguine paternal uncle, the former excludes latter.

3.4 Rules of Distribution of Assets among the Uncles and Aunts:

The rules are:

(i) if there is a husband or wife, then he or she is to be assigned the Koranic share.
(ii) where there co-exist paternal uncles and aunts as well as maternal uncles and aunts,
then paternal side is to be assigned 2/3 share and maternal side is to be assigned 1/3
irrespective of the number of uncles and aunts.
(iii) the portion falling on the paternal side is to be divided among aunts and uncles if
they are brothers and sisters of the deceased.
(iv) the 1/3 portion falling to the share of maternal uncles and aunts will be divided
among them.
(v) in the absence of one side, the other would take the whole property.

3.5 Distribution of Assets among the descendants of Uncles and Aunts:

In the absence of uncles and aunts, the property devolves on their descendants. In the distribution
of assets among the descendants of aunts and uncles, the doctrine of representation applies. The
rule of preference among them is that nearer excludes the remoter. For example: P dies leaving
behind a full paternal aunts daughter, FDD and a uterine maternal uncles son and daughter,
MSS and MSD. In this case the distribution of assets will first take place at the roots. MS taking
1/6 as sharer and FD taking remaining 5/6 as residuary. MSs 1/6 will go to MSS and MSD,
between them they will share it equally. FDs 5/6 will go to his daughter FDD.

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 Chapter 4

Doctrines of Aul and Radd

The same anomalous situations relating to distribution of assets among the heirs are likely to
arise under the Shia law as they are likely to arise under Sunni law, i.e., the sum total of shares
being less than the unity or more than the unity, the problem of rateable distribution or the
distribution of balance among the heirs arises. The Shias, like the Sunnis solve the problem of
excess by the application of the Doctrine of Radd, though in the actual application of the doctrine
there are some differences. The Shias do not recognize the Doctrine of Aul or Increase. In case
the sum total of shares exceed the unity, as per their rule, the fraction in access is to be deducted
from the shares of daughters and full or consanguine sisters. The reason given behind this is that
by doctrine of return, when the total shares are less than unity, the entire residue goes to them, so
when the shares exceeds, they should suffer the loss.12

Illustration

A female dies leaving behind her husband and two sisters. The husbands prescribed share in
such a situation is 1/2, while two sisters 2/3. If we solve this proposition, the husband will be
entitled to 3/6 and the sisters 4/6. Shia law resolves it differently by proposing that the husband
should be given 3/6 as his prescribed share is not susceptible to reduction, while the sisters will
jointly inherit 3/6 instead of 4/6 as their share can be reduced to circumvent the application of
Aul.

1.1 Doctrine of Return

If after the distribution of assets among the shares, some residue is left and there are no
residuaries to take it, then the balance is distributed among the shares in proportion to their
shares. But, the doctrine of return uner the Shia law is subject to the following exceptions:

(i) if there are other heirs, howsoever remote, the husband or the wife is not entitled to the
return.
(ii) if an intestate Shia dies leaving behind :

12
http://www.shareyouressays.com/knowledge/13-general-principles-of-inheritance-under-muslim-law-in-
india/117457

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 (a) mother, father and one daughter, as well as
(b) two or more full or consanguine brothers, or one such brother and two such sisters or
four sisters, then the mother is not entitled to a share in the return. 13

(iii) In case a Shia dies leaving behind uterine brothers and sisters as well as full sisters, then
the uterine brothers and sisters are not entitled to the return. But this exception does not
apply if the uterine brothers and sisters co-exist with consanguine brothers and sisters. In
such a case all of them share proportionately in the balance.

For example-

the deceased is a Shia Muslim, his daughter will take the entire estate the first half as a sharer
and another half after applying the Radd. The reason for this sort of distribution is that the
daughter belongs to the class 1 and the uncle is an heir located in the class 3. The uncle is only
entitled to inheritance if there is no heir from the class 1 & 2.

Let us explain another example to appreciate how the role of Ausbaat/residuaries is restricted in
Shia law to allow more space to the application of Radd. If a person dies leaving behind his
father and a daughter. In Shia law, a father is not regarded as a residuary in presence of
deceaseds daughter as the both are placed in the same class. Thus, in the above example, the
father and the daughter will first inherit as sharers and the residue will be shared by them under
the Radd in accordance with their respective shares-14

Father=1/6, Daughter=1/2, LCM=6, Father=1/6, Daughter=3/6, After applying the Radd:

Father=1/4, Daughter=3/4.

13
Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law Agency, law Publishers.
14
Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3rd Edition, 2011, lexis Nexis Butterworths Wadhwa.

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 Chapter 5

Principle of Representation:

1. Representation:
(1)The principle of representation has more than one meaning. It may be applied for the
purpose of deciding
(a) What persons are entitled to inherit ; or
(b) The quantum of the share of any given person on the footing that he is entitled
to inherit.15
(2) Where for purpose
(a) The rule of exclusion applies (i.e., the nearer in degree excludes the more
remote) it is true both of Sunnis and Shies that the principle of representation is not
recognized as qualifying the rule of exclusion. Thus, if A dies leaving him surviving a
son and grandsons by a predeceased son, the grandsons are excluded from inheritance by
their uncle. They do not take in their father's stead though he would have been an heir
had he survived his father.

(3) But if both sons predeceased the propositus who died leaving three grandsons by one
son and two by the other, then all the grandsons are heirs. If the principle is applied, the
grandsons of one branch will have to divide into three what the grandsons of the other
branch divide in half.

In the case supposed, Sunni Law would not proceed upon any principle of representation
in calculating the grandsons' shares. The grandsons would each take the same share, i.e.,
a share ascertained without recourse to the representation principle. The division among
them would be per capita and not per stripes. However, recognition of the principle of
representation for the purpose of calculating shares is not altogether absent from the
Sunni Law. Rules (2) and (3) therein formulated disclose the influence of the principle in
ascertaining the share of each heir in cases to which these rules are applicable.

15
Aga Sheralli v Bai Kulsum (1908) 32 Bom. 540, 547,548, 558

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 (4) For the limited purpose of calculating the share of each heir
As distinct from the purpose of ascertaining the heirsthe Shia Law accepts the principle
of representation as a cardinal principle throughout. According to that principle the
descendants of a deceased son, if they are heirs, take the portion which he if living would
have taken and in that sense represent the son. In the same limited sense, the descendants
of a deceased daughter represent the daughter; if they inherit, they take the portion which
the daughter if living would have taken. The principle is applicable in the same way to
the decendants of a deceased brother, sister or aunt.

(5) The principle of representation is not confined in its operation to descendants

only.
It applies in the ascending as well as in the descending line. Thus great-grandparents take
the portion which the grandparents, if living, would have taken and the father's uncles
and aunts take the portion which the deceased's uncles and aunts if living would have
taken.

When the rule of exclusion applies:

The rule that the nearer in degree excludes the more remote is a rule applied within the
limits of each class of heirs. In Sunni Law it is not without other limitations. But among
Shias, it applies within each section in all cases without distinction of class or sex.16. As
the classification of heirs is different in the two systems, the application of the doctrine
has different results as regards the persons entitled to inherit. The extent of this
divergence is not the subject matter of the present section which is concerned only with
the ascertainment of shares under the Shia law, for which purposes the principle of
representation is fundamental.

16
Baillie II. 270

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 Chapter 6

Miscellaneous Principles

6.1 Eldest Son:

The eldest son, if of sound mind, is exclusively entitled to the wearing apparel of the
father, and to his Quran, sword and ring, provided the deceased has left property besides
those articles.
6.2 Childless Widow:
Childless widow takes no share in her husband's lands, but she is entitled to her one
fourth shares in the value of trees and buildings standing thereon as well as in his
movable property including debts due to him though they may be secured by a
usufructuary mortgage or otherwise.
In the following cases, we find a mention of childless widow:
Mir Alli v. Sajuda Begum17 ; Umardarez All Khan v. Wilayat Ali Khan18 ; Muzeffar All
v. Parbati19 ; Aga Mohamed Jaffe, v. Koolsorn Beebee20 ; Durga Das v. Nawab All
Khan21 ; Syed Ali v. Syed Mohammad.22
The expression -lands" in this section is not confined to agricultural land only, it includes
lands forming the site of buildings23 But a childless widow in the absence of other heirs,
was held entitled to inherit in addition to her one-fourth all the remainder of her
husband's property, including a house by virtue of the doctrine of -return".24According to
Shia Fiqah a childless widow of an "Asna Asharia" Muslim could not inherit any portion
of the lands left behind by him.25
6.3 Illegitimate Child:An illegitimate child does not inherit at all, not even from his
mother or his relations, nor do they inherit from him.26

17
(1897) 21 Mad. 27
18
(1896) 19 All 169
19
(1907) 29 All 640
20
(1897) 35 Cal. 9 P C
21
(1926) 48 All 557
22
(1928) 7 Pat 426
23
(1897) 25 Cal. 9 P C
24
Abdul Hamid Khan v. Peare Mirza (1925) 10 Luck, 550 ; 153 I C 379 ; ('35) A 0 78.
25
Mohammad Munir v. Abu Nasar ; PL. D 1972 S C 346
26
Sahebzedee Begum v. Himmut Bahadur, (1969) 12 W R 512 S C on review

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