==========================

Muslim Law of Succession

*******************************************
********************************************************
Quranic Share (Primary heirs) mentioned in the Quran

1/2
1/2
1/4
1/4
■ Husband
■ Husband (if
(if no
no child),
child),
■ Husband
■ Husband (if
(if with
with child),
child),
■ Daughter
■ Daughter (if
(if only
only one),
one),
■ Wife
■ Wife (if
(if no
no child)
child)
■ Full
■ Full Sister
Sister

■ Half-Sister
■ Half-Sister on
on Mother‟s
Mother‟s side
side

1/8
1/8

■ Wife
■ Wife (if
(if with
with child)
child)

2/3
2/3

■ Daughters
■ Daughters (if
(if more
more than
than one),
one),

■ (DS)
■ (DS) Daughter
Daughter of
of Son
Son (however
(however low
low in
in chain,
chain, e.g.
e.g. grand
grand daughters),
daughters),

■ (S)
■ (S) Full
Full Sister
Sister (if
(if more
more than
than one)
one)

■ (Sm)
■ (Sm) Half-Sister
Half-Sister on
on Mother‟s
Mother‟s side
side (if
(if more
more than
than one)
one)

1/3
1/3

■ Mother
■ Mother (if
(if there
there are
are no
no child
child or
or their
their descendants)
descendants)

■ (Bm)
■ (Bm) Half
Half Brother
Brother on
on Mother‟s
Mother‟s side
side

■ (Sm)
■ (Sm) Half-Sister
Half-Sister on
on Mother‟s
Mother‟s side
side

1/6
1/6

■ Father
■ Father or
or (TGf)
(TGf) True Grand Father (if there is no father)

■ Mother
■ Mother (if
(if there
there are
are child
child or
or their
their descendants)
descendants) or
or (TGm)
(TGm) True
True
Grand Mother (if there is
Grand Mother (if there is nono

mother)
mother)

■ (DS)
■ (DS) Daughter
Daughter of
of Son
Son (if
(if they
they share
share with
with Daughter),
Daughter),

■ (Bf)
■ (Bf) Half
Half Brother
2 on
Brother on Father‟s
Father‟s side
side

■ (Sf)
■ (Sf) Half-Sister
Half-Sister on
on Father‟s
Father‟s side
side
 Principle of ‘Tasib’
No female is primary residuary but only becomes a residuary in the presence of a
co-existing male residuary of the same degree and consanguine relationship to the
deceased. This is called the principle of Tasib.

Thus,

1. Daughter: son converts daughters into residuaries

2. Daughter of Son: Son‟s son converts son‟s daughter into residuaries

3. Full Sister: Full brother converts full sister into residuaries

4. Consanguine sister: Consanguine brother converts Consanguine sister into

residuaries

5. Tasib doesn’t apply to: widow, true grandmother, uterine sister. These are
Quranic heirs mentioned directly by Quran.

Two Exceptions:

a. Father converts mother into residuary

b. Sister (Full/consanguine) inheriting as residuary (when co-existing with a

daughter or son‟s daughter)

Kalalah
There is disagreement about the meaning of the word kalalah. According to some
scholars, it means one who dies leaving neither issue nor father nor grandfather.
According to others, it refers to those who die without issue (regardless of
whether succeeded by either father or grand father). On this question 'Umar
remained undecided up to the last. But the majority of jurists accept the opinion of
Abu Bakr that the former meaning is correct. The Qur'an also seems to support
this. For e.g- the sister of the kalalah has been apportioned half of the inheritance
whereas, had his father been alive, the sister would not have inherited from him at
all.

3
 Daughter

Whole estate: if she is the sole heir she gets the whole estate (hanafi/shafii fiqh).
Based on hanafi/shafii fiqh she gets 1/2 as primary heir and 1/2 as Al-Radd

Husband

Wife

4
 Father

Mother

Whole estate: if she is the sole heir she gets the whole estate (hanafi/shafii fiqh)
Based on hanafi/shafii fiqh she gets 1/3 as primary heir and 2/3 as Al-Radd.

5
 Full Sister

Full Brother

6
 Doctrine of Abu Yusuf
Imam Abu Yusuf proposed a doctrine based on the distribution of the estate on a
per capita basis. Where the claimants are of equal degree the estate is divided with
reference to gender and the number of claimants. This system is easy to implement
and it is followed by Hanafi jurists in western Asia.

According to Imam Abu Yusuf , when considering distribution of the estate

amongst claimants of equal rights with regard to degree and "blood" amongst the
distant kindred group, we need only to consider the actual claimants.
• Imam Abu Yusuf's system does not take any noticeof the gender or "blood
of the intermediate ancestors. e.g roots of the claimants.
• Inheritance is based on the gender and "blood" of the actual claimants, that is to
say on a per capita basis. Each male inherits the portion of two females. Imam Abu
Yusuf's system is very easy to implement compared to Imam Muhammad's system.

Doctrine of Shaybani
The doctrine of Imam Muhammad Shaybani is based on a per stirpes basis and this
is the system adopted in the Indian subcontinent.

According to Imam Muhammad ,when considering distribution of the estate

amongst the distant kindred in situations when the claimants are of equal degree
and"blood", we must consider the gender and "blood' of the intermediate ancestors
(the roots) of the claimants to determine the share of each claimant.

• The reason that this system applies only to the distant kindred group is because
such a difference in "blood" or gender does not arise amongst the intermediate
ancestors of the residuaries.

• According to the system proposed by Imam Muhammad the claimants inherit on

a per stirpes (by roots) basis.

Imam Muhammad's system only becomes applicable where the claimants are great
grandchildren or lower descendants.

7
• The doctrine of Imam Muhammad Shaybani is as follows:

1. If the heirs are of equal degree (proximity) to the deceased and the conditions of
their roots (ascendants) are equal, we examine the gender of the roots and the
number of branches arising from the roots.

2. The roots of the claimants are examined (from the deceased outwards) until
there is a difference in gender amongst the roots.

3. At this point, where there is a difference of gender of the roots, we assign shares
based on .the gender of each of the roots and the number of claimants arising from
each of the roots. The rule that the male gets the portion of two females applies.

4. We continue to examine and descend along the roots of the claimants. If a further
difference of gender appears at a lower level .in the family tree, the shares allotted
collectively to the male roots and those allotted to the female roots are reassigned
at that level.

5. Step four is repeated until we get to the claimants.

6. The shares allotted to the male roots are collected together and distributed to
their descendants. Similarly, the shares allotted to the female roots are collected
together and distributed to their descendants. The male inherits double the share
of the female.

 State elaborately Zaid’s doctrine on ‘’grandfather and

collaterals in competition’’. Distinctions between Maliki, Shafi
and Hambali schools of sunni law on this regard.(2012)
Zaid’s doctrine
The doctrine of Zaid Bin Thabit is adopted by Muslim jurists in order to resolve a
competition between grandfather and collaterals. The doctrine consists of four
different rules. The last two rules are advantages rule. These are as follows:-

1. The grandfather shall always be considered as a residuary heir whether a

daughter or son’s daughter of the deceased is present or not in the

8
 scheme of inheritance involving grandfather and collaterals in
competition.
2. The grandfather will always take his Quranic share of one -sixth of the net
estate where this is to his benefit.
3. Sisters will never inherit as Quranic heirs but as residuaries taking half the
share of grandfather by complying tasib rule.
For example, if a man dies leaving behind a daughter, a full sister and a
grandfather; applying these rules, the heirs will take the following shares:
Daughter = 1/2 of the estate being her Quranic share
= 1/2
Grandfather = 2/3 of ½=1/3
Full Sister = 1/3 of 1/2 =1/6
4. The grandfather will be entitled to a minimum share of one-third of the total
shares of himself and the collaterals, whether this be the whole estate or the
residue after the deduction of other Quranic shares.
For e.g -If a person dies leaving a widow, four full brothers and grandfather,
they will inherit the estate as follows:

Widow = ¼ of the estate because no issue

Grandfather = 1/3 of Residue (3/4) under Advantage Rule
= 1/3 of ¾=1/4
Each Full Brother= ¼ of (2/3 of 3/4)
= ¼ of 6/12
= 1/8
Distinctions between Maliki,Shafi and Hambali schools of sunni law
The Maliki,Shafi and the Hambli school differes on grandfather and
collaterals issues of Zaid bin Thabit.
According to Zaid’s third advantages rule,
Sisters will never inherit as Quranic heirs but as residuaries taking half the
share of grandfather by complying tasib rule.
For example, if a man dies leaving behind a daughter, a full sister and a
grandfather; applying these rules, the heirs will take the following shares:
Daughter = 1/2 of the estate being her Quranic share
= 1/2
Grandfather = 2/3 of ½=1/3
Full Sister = 1/3 of 1/2 =1/6

But the Maliki, Shafi and Hambli school differes this view. According to these
schools the full sister/consanguine sister is allowed to inherit as a quranic
9
 heir in the presence of the grandfather which is fully contrary to the general
principles of Zaid bin Thabit’s doctrine.

For e.g According to Zaid’s rule---

W-1/4(Q)
FS-1/3 of ¾--3/12
FF-2/3 of ¾---6/12

But according to Maliki, Shafi and Hambli school---

W-1/4(Q)
FS-1/2(Q)
FF-1/4(R)

Doctrine of Al-Himariyyah
Background: A Deceased woman left behind a Husband, 1 Mother, 2 Uterine
Brothers, and 2 Full Brothers. Umar bin Khattab (ra) first decided that Husband
gets 1/2, Mother gets 1/6, 2 Uterine Brothers gets 1/3. The Full Brothers are
entitled to remaining residue but since there is no residue, they get nothing.

■ Two full brothers argued that even if the father was a donkey (Himar) or a stone
cast into the sea and they have no paternal relationship, they still had the same and
equal relationship with the deceased as the Uterine Brothers through the same
“Mother”.

■ Umar bin Al-Khattab (ra) reconsidered and made the final verdict as-

Husband gets 1/2,

Mother gets 1/6,

2 Uterine Brothers gets 1/6

and 2 Full Brothers get 1/6 (hence they share 1/3 equally)

This solution is known as ‘al –himariyyah’ rule.

■ Al-Himariyyah rule doesn‟t apply to Consanguine brother/sister (as they don‟t

have same mother)

■ Al-Himariyyah rule override principle of Asabah (male / female gets same share)
10
■ Zaid bin Thabit, Imam Malik and Imam Shafii also adopt this rule that when
there is Uterine siblings inheriting with full siblings, they all share 1/3 portion
equally.

Different views

However, Two famous jurists, Imam Abu Hanifa and Imam Ahmed bin Hanbal did
not adopt Al-Himariyyah Rule. They argued that Ashab-ul-Furud has priority and
secondly Al-Himariyyah Rule goes against Quran one two counts:

A) Quran states that two or more Uterine Siblings should get 1/3 (which they
don‟t get under AlHimariyyah Rule), and

B) In case of Full Brother and Full Sisters male should get twice as much as female,
which doesn‟t happen in case of Al-Himarriyah Rule, where Full Brother/Sister
inherits equally.

■ They argued that Quran‟s rule must be left unchanged, even if under some
circumstances the Umar bin Khattab‟s ruling was sound.

Discuss the right of inheritance of -

A. A wife who is suspected of the murder of her husband
The general principle is that,

Narrated Abu Hurayrah ~: Allah's Messenger (11) said, "One who kills a man
cannot inherit from him."(Tirmidhi and Ibn Majah). Similar Hadith reported by Abu
Dawud and Al-Bayhaqt.

All Muslim jurists agree that a murderer or killer shall not inherit. If such people
are allowed to kill and then benefit from the estate of the victim, it will encourage
incidents of homicide.

• Intentional or unjustifiable killing is a bar to inheritance according to Sunni

jurisprudence. The four main Sunni Madhahib vary slightly in detail on,other forms
of killing.

11
• According to the Hanafi Fiqh any killing whatsoever(intentional or
unintentional) of the proprietor by claimant will prevent the right to inherit with
the following exceptions:

1. Justifiable killing according to Shariah

2. Killing as a result of self-defence

3. Lawful killing

4. Act of a mad man or minor

5. Indirect killing (Qatl Bi AI-Tasabbub)

• Direct killing by a minor or lunatic is not a bar to inheritance under Hanafi Fiqh.

According to Shia law, it is an impediment only if it be intentional,if it is

unintentional or justifiable it is not a bar to succession.

• According to the Shafi'i Fiqh, all forms of killing including the act of a lunatic or a
minor are an impediment to inheritance.

• According to the Maliki Fiqh killing is a bar to inheritance with the following
exceptions:

1. Justifiable killing according to Shariah

2. Killing as a result of self-defence

3. Killing in retaliation

4. Unintentional killing

Minors and lunatics are also barred from inheriting under Maliki Fiqh if the killing
is deliberate although they are not liable for the penalty of retaliation.

• According to the Hanbali Fiqh any killing that is punishable (including monetary
punishment) is an impediment to inheritance. The following forms of killing are
not an impediment to inheritance:

1. Justifiable killing according to Shariah

2. Killing as a result of sell-defence and war

12
3. Killing in retaliation

B. A missing person
As regards his property , maqfud, a missing person, is considered as alive so that
nobody would inherit from him and as regards the property of another he will be
considered as dead to that extent that he will not inherit from anybody.

The property of a missing person shall be reserved until his death is ascertained or
a certain period has elapsed. Opinions differs regarding this period.

The accepted view is this : when no one of his like age is alive then he will be
presumed to be dead and Abu Hanifa said that this period is 120 years from the
date of his birth and according to Imam Muhammad Shaybani the period is 110
years and according to Abu Yusuf it is 105 years .

Hanafi jurist generally puts it as 90 years (as normal life span).and the fatwa
accords with this view.

Maliki considered it to be 70 years.

Shafii and Hanbali allowed court to determine the length of time. However,
Imam Ahmed considered minimum 4 years, and Imam Shafii minimum 7 years if
there is strong presumption of death (like in war).

Some jurist have said that the property of a missing person shall be reserved until
the decision of the Imam concerning the death of the missing person.

According to some jurists the kazi may pass an order after four years after the fact
is brought to his notice and some say it is four years from the date of disappearance
of the person.

In Bangladesh the period is governed by sections 107 and 108 of the Evidence Act
which is 7 years.

As regards his right to succeed to another person, the view is that his share, which
he would inherit from his ancestor shall be kept reserved as in the case of
pregnancy and when the period expires then his property will be given to his heirs
who will be present when the decision concerning his death is made and whatever

13
share was reserved for him will be given to the ancestor fro whose share it was
reserved.

If along with the missing person there is such an heir who is excluded if the missing
person were present then that heir would get nothing . For e.g.- a person dies
leaving 2 daughters, a son’s son and a missing son-

2 daughters Missing Son Son’s son

If the missing son is alive…………. ½(3/6) ½(3/6) 0

If the missing son is dead…………. 2/3(4/6) 0 1/3 (2/6)

The two daughters may take 3/6 but nothing can be given to his son’s son and
residue 3/6 will be reserved, if the son presents himself within the period , he takes
3/6 if not the daughters will again take 1/6 and the residue 2/6 will go to the son’s
son.

Unborn Child (ٕ‫)يننع‬

1. General rule is that unborn child is only eligible to inherit if he is born alive.

2. If the child is born alive but die subsequently, then shares are distributed
amongst his/her heirs.

Share distribution

a. Hanfi, Shafii and Hanabli allows distribution of share after the shares of unborn
child are reserved based on all possible calculation (either as male or female)

b. Maliki suspend distribution of share until the child is born and his sex is
dertmined.

 Recommendation of the Law Commission of Bangladesh for Possible

Increase of Daughter’s Share in the Succession of Parents’ Property in
Absence of Son.

14
Introduction

Under the Muslim Family Laws Ordinance, 1961, of Pakistan, as adopted by

Bangladesh with few technical amendments, the children as the representatives of
the predeceased father get per stripes the share of the father from their
grandfather, which under traditional shariah law they were not entitled to. Even
daughter in the absence of son of the predeceased father gets the entire share due
to her father if living. However, under normal circumstances, if father dies leaving
only daughter/s, she does not get the whole property, as she is entitled to get as
representative of the predeceased father under the 1961 law. The part of the
property also goes to collaterals i.e. uncles. Although illogicality of the position is
apparent in the face, it would need proper study, rational interpretation of the holy
Qur’an and Sunnah i.e. Ijtihad to bring necessary changes in the prevailing law,
which the Law Commission has attempted to do and make recommendation to the
government. The Commission acknowledges with gratitude research assistance
rendered to the Commission by two young Muslim law scholars, namely, Dr.
Ridwanul Hoque, Associate Professor of Law of the University of Dhaka and Anisur
Rahman, Assistant Professor of Law of the Eastern University.

Differential Approach of Sunni and Shia School to Law of Inheritance

Classical principle of Muslim law of inheritance that ‘nearer in kinship excludes the
remoter’ has been conservatively interpreted by Sunni school of Islamic thought.
This has long deprived the children of pre-deceased father or mother of their right
to property of the propositus i.e. grandfather/grandmother when succession
opens. However, Shia school has taken a different and more progressive view of the
issue. According to Shia school, in both cases i.e. daughter of pre-deceased father,
and daughter in normal circumstances shall inherit whole of father’s property per
stripes, in exclusion of the remoters i.e. her uncles in absence of son.Rationale for
Giving Inheritance Rights to the Children of Predeceased Father/ Mother

The Muslim Family Laws Ordinance, 1961 (Sec. 4) of the then Pakistan,
predominantly a Sunni state, rectified the traditional law by the principle of
representation, meaning the children as the representatives of the pre-deceased
shall inherit his or her share from the grandfather. The previous rule of succession
excluding orphaned grand children from their grandparent’s property aroused
much attention and controversy. Many Muslim countries adopted the doctrine of
15
representation and allowed share to the grand children of predeceased father,
though the share of such children varied from country to country. For instance,
Egypt, Syria, Morocco and Tunisia have adopted this principle. The Commission on
Marriage and

Family Laws in Pakistan which recommended 1961 legislation gave the following
reasons and arguments for inheritance of the children of predeceased father:

a) There is no Qur’anic verse or authoritative Hadith which excludes orphaned

grandchildren from inheriting their grandfather’s property.

b) The exclusion was based on pre-Islamic practice, which gave all property rights
to male members capable of carrying arms to defend the interest of the tribe or the
family, and assumption that economic security of the female members would be
taken care of by the male members, although Holy Qur’an and Sunnah later
recognised many property rights of the women.

c) Where the father of the propositus has predeceased him, the grandfather gets
the share that the father of the propositus would have got. This means that the
right of representation is recognized by the classical Shari’a law amongst the
ascendants. Therefore, it is not logical or just that it should not be recognized
among the lineal descendants.

d) The Qur’an has time and again expressed great solicitude for the protection and
welfare of the orphans and their property. Any law depriving them of inheriting
their grandfather’s property would go entirely against the spirit of the Qur’an.

Increase of Daughter’s Share in the absence of Son by Ijtihad

Now the very simple and rational question is, if the daughter of the predeceased
father can inherit the full share of her father from her grandfather, why she will not
fully inherit her father’s property after latter’s death. It needs to be mentioned that
legislation providing for the property rights of the children of the predeceased
father in the Sunni Muslim countries was not an easy matter. They faced lot of
opposition. However these countries laid emphasis on Ijtihad i.e. rational,
contextual and time-needed interpretation of Qur’an and Sunnah, the gate of which
was allegedly closed in the 10th century, which is not true. The notion of closure of
the gate of Ijtihad gained strong ground from a decision of the Privy Council (in Aga

16
Mahomed vs. Koolsom BeeBee(1897)24 I.A. 196, and Baker Ali Khan vs. Anjuman
Ara(1903) 30 I.A. 94) which was based on insufficient understanding of the spirit
of Qur’an and Hadith, blocking the road of progressive development of Muslim law.

The great Prophet of Islam left a very large sphere free for legislative enactments
and judicial decisions even for his contemporaries who had the holy Qur’an and
Sunnah before their eyes. There are practical necessities and examples of changes
in Muslim law. Caliphs and their lieutenants by issuing administrative orders and
regulations brought changes in certain sectors of Muslim laws on penal, political
and administrative matters. Criminal, civil (except family issues), administrative,
commercial and evidence related matters are still beyond the purview of shariah in
our country. In fact, there is misunderstanding about shari’a in our country.
Although it is supposed to be based on holy Qur’an and Sunnah, matters not clearly
covered by these sources are subject to fresh interpretation even to-day, if
traditional interpretation in the forms of Ijma and Qiyas is anachronistic.

Numerous convertees to Islam uphold their customary laws and usages in many
spheres of life, such as, the Berber people of North Africa follow their customary
law in family and inheritance though they are Muslims. The law of matrimonial
property in Malaysia is a combination of Muslim law and Malay custom.

After the death of the prophet (sm) two more sources of Muslim law i.e. Ijma and
Qiyas, as mentioned above, emerged to deal with the issues not clearly covered by
Qur’an and Sunnah. Later several different schools of thought of Muslim law
emerged among which four are important i.e. Hanafi, Maliki, Shafi and Hanboli – all
taken together called Islamic Fiqh. There were both similarities and dissimilarities
amongst them. It happened by the legitimate exercise of Ijtihad in absence of any
clear guidance from the principal sources. This view has been reflected in the
legislation and judicial decisions of many modern Muslim countries.

Examples of Exercise of Ijtihad in Modern Times

The Tunisian Law of Personal Status, 1957 prohibiting polygamy and the Syrian
Law of Personal Status, 1953 empowering kazi to refuse permission to a man
already married to take a second wife were the result of reinterpretation of
principle from main sources of Muslim laws.( Alamgir Muhammad Serajuddin,
17
Shari’a law and society tradition and change in the Indian subcontinent, 1999,
Asiatic Society of Bangladesh, p. 9). Post-divorce maintenance has been
substantially enhanced in many selective cases by legislation in Egypt, Iraq, Kuwait,
Syria, Tunisia, Algeria, Morocco, Turkey and Malaysia, based on teleological
interpretation of the Quranic verse 2:241 on post-divorce maintenance (Mohiuddin
Khaled and Ridwanul Hoque, ‘Right to post-divorce maintenance in Muslim Law’,
Chittagong University Journal of Law, vol. IV, 1999, p. 23.) Even Appellate Division of
the Supreme Court of Bangladesh in a conservative judgement in Hefzur Rhaman
vs. Shamsun Nahar Begum in 1995, remarked that statutory recognition of
benefits and privileges for divorced women beyond the period of iddat would not
be in conflict with Muslim law if situation and justice so demands (ibid. p. 24).

So far the sub-continent is concerned, the superior courts in Pakistan have asserted
two rights which no courts in other Muslim countries had done, namely, a) their
right to independent interpretation of the Qur’an and b) their right to differ from
the doctrines of traditionally authoritative legal texts which are not based on any
specific injunctions of the Qur’an and Sunnah (Alamgir Muhammad Serajuddin,
Muslim Family Law, Secular Courts and Muslim Women of South Asia, a study in
judicial activism, Oxford University Press, 2011, p. 110). The improvement in the
law of inheritance can be possible under this device. First, the Muslim Personal
Law (Shariat) Application Act, 1937 only specified the area of application of Shari’a
law but it did not explain or codify any rules of Muslim law. The absence of codified
Muslim law practically opened the scope of legitimate interpretation of classical
law.

Second, the interpretation of the rule “a nearer in kinship excludes the remoter
from inheritance” and the liberal meaning of the Arabic word “Al-
Khalala”( meaning child) can be used to justify the increase of share of daughter. An
example from the Indonesian Apex Court can be taken in this respect.

The Indonesian Supreme Court in H. Nur Said bin Amaq Mu’minah, (reg. No. 86
K/AG/1994) based upon the liberal interpretation of “Surah al-Nisa” 4:176 where
it held that child will exclude the collaterals declared that here child means either a
male or female child. The traditional concept of Sunni law was different in this
case. There the Arabic word ‘child’ was interpreted to mean only the male child.
Consequently the male child would exclude his uncle from his father’s property
whereas the female child would not. However, the Supreme Court of Indonesia
18
asserted that “so long as the deceased is survived by children, either male or
female, the rights of inheritance of the deceased’s blood relations, except for
parents and spouse, are foreclosed.”

Resort to Eclecticism for Increasing Daughter’s Share Eclecticism, technically called

takhayyur, is the device of searching for precedents, not only in the four orthodox
schools but even in the opinions of individual jurists to meet the need of modern
life. It is still allowed by some jurists to follow one school in one particular issue
and another in others if his conscience so permitted. We followed this principle in
the Dissolution of Muslim Marriages Act, 1939, allowing a Muslim wife to seek
divorce on the grounds of husband’s torture and desertion for a period of four or
more years.

Most of the Middle Eastern countries including Saudi Arabia have also adopted the
principle of takhayyur in various matters, i.e. dissolution of marriage on the
grounds stated by Maliki law though they follow Hanboli doctrine (A. M. Serajuddin
op. cit, 1999, 96). Another important matter is that we need to take the help of
statutory law to adopt the principle of takhayyur. Sudan has gone a step ahead by
allowing issuance of judicial circulars for application of rules other than the Hanafi
doctrine in relevant cases under section 53 of the Sudan Mohammedan law Courts
Organization and Procedure Regulations, 1915.

Both Sunni and Shia law recognize the basic rules of inheritance laid down in
Qur’an but they interpret it differently. Under Shia law all heirs of the same
relationship to the deceased, whether male or female, agnatic or non-agnatic, have
the same ability to exclude other heirs and to transmit their entitlement to their
own heirs.(NJ Coulson, Succession in the Muslim family, Cambridge 1971, pp.108,
133).There is no reason to undermine the Shia version. Richard Kimber after a
thorough research observes that Shia law is much closer than Sunni law in respect
of rules laid down in Qur’an regarding inheritance. ( Richard Kimber, The Qur’anic
law of inheritance, Islamic Law and Society, Vol.5, No.3) Therefore there is no harm
if the interpretation of Shia law is taken in increasing daughter’s share in absence
of son.

In this context, some modern Muslim nations have adopted combined rules from
two or more different schools or have created modern inheritance laws based
loosely on traditional jurisprudence but suited for modern times. The Tunisian
19
legislation of 1959 enables a daughter or a son’s daughter to exclude collateral
male agnates form inheritance. The Iraqi law of 1963 enables female descendants
of the Sunni propositus to exclude any collateral male agnate. Indonesia is
attempting to allocate equal share for male and female so as to bring it into line
with Indonesian adat, or customary law by preparing reports and bills.

Conclusion and Recommendation

The above examples and arguments amply testify that the status of daughter can be
equated with that of son in certain cases of inheritance i.e. when father dies leaving
daughter/s, but no son. This also conforms to frequent present-day practice in
Sunni families. Parents having only daughter/daughters and no son desire that
their daughters do not share the inheritance with collaterals. So they make gifts or
Hiba to their daughters.

In the light of the above discussions, the Law Commission strongly recommends a
new section be added after Section 4 of the Muslim Family Laws Ordinance 1961
with the provision of increasing the share of daughter/s by prohibiting any part of
the property going to the collaterals i.e. uncles in the absence of son in usual course
of inheritance.

‘’Full blood excludes the half-blood’’ –Explain it

• A full blood residuary excludes a consanguine half blood residuary of the same
degree. Thus, a full brother excludes a consanguine brother and a full brother's son
excludes a consanguine brother's son.

• A full blood residuary excludes a half-blood sharer if the full blood residuary
would convert a full blood sharer of the same class as the half-blood sharer into a
residuary. This rule sounds complicated but in practical terms it means that a full
brother excludes a consanguine sister because there is only one half-blood sharer
by father and that is the consanguine sister.

• A female full blood sharer inheriting in the capacity of residuary excludes a half-
blood female of the same degree. In practical terms this means that a full sister
when inheriting as a residuary excludes a consanguine sister.

20
• A full blood sharer inheriting as a sharer does not exclude a half-blood residuary.
In practical terms this means that a full sister inheriting as a sharer does not
exclude a consanguine brother.

• Uterine relations are not excluded by full blood on this ground because they are
not related through father.

Similarities between Sunni and Shia law of inheritance

1) In Sunni law, spouses do not benefit under the principle of Radd/return in
the first place, i.e. in presence of other sharers. The same is the rule under
Shia law. For instance, if a person dies leaving behind his wife and a daughter,
the wife will inherit 1/8, and 7/8 will be given to the daughter (one half as a
sharer and the rest under the Radd).

2) There is no difference between the both laws that heirs of a predeceased heir
will not inherit anything if other heirs of the deceased are alive. For instance,
if a person dies leaving behind one son and two grandsons of a predeceased
son, the son will get the whole estate and nothing will be given to the
grandsons.

3) A husband dies leaving behind a widow and a son. The widow will
have her prescribed share of 1/8, while the son will have the residue of the
estate.
Wife/widow=1/8 as a sharer,
Son=7/8 as a residuary.
4) A wife dies leaving behind her husband and a full sister. The husband and
the full sister will get half of the estate each as sharers in both Shia and Sunni
laws.
Husband=1/2 as a sharer,
Full sister=1/2 as a sharer.
5) A person dies and leaves behind his wife and a full brother. His wife will get
1/4 as a sharer, while the rest, i.e. 3/4 will be inherited by the full brother as
a residuary in both Shia and Sunni laws.
Wife=1/4 as a sharer,
Full brother=3/4 as a residuary.
6) A wife dies leaving behind her husband and one full brother and one full
sister. The husband will have one half of the estate and the rest will be
21
 divided between the full brother and the full sister in both Shia and Sunni
laws. The full brother will get double than that of the full sister.
Husband=1/2 as a sharer,
Full brother & full sister= 1/2 as residuaries,
The proposition will be solved from 6 supposed shares.
Husband=3/6,
Full brother=2/6,
Full sister=1/6.

Distinction between Sunni and Shia law of inheritance

1) According to Sunni school the number of quranic heirs is 12 but the shia
school recognises 9 person as quranic sharers.
2) Sunni school divides the heirs in 3 types- 1)quranic shahrers, 2)residuary
and 3)distant kindred. But the Shia school divides the heirs into 2 categories-
1) quranic shahrers and 2) residuaries
3) Under S u n n i l a w , the rule that nearer excludes the remoter is applied
only in respect of agnatic heirs whereas under Shia law, the rule of nearer
excludes the remoter is applicable to all the classes of heirs.
4) Under Sunni Jaw, succession among the heirs of one class but of
different branches is per capita whereas under Shia law, succession among
the heirs of a class but belonging to different branches is per strips.
5) Doctrine of Increase (Awl): Under the Sunni law, doctrine of Increase, the
excess share is deducted from the shares of all the heirs in proportion of their
normal shares whereas under Shia law, doctrine of Increase, the excess is
deducted only from the shares of daughter or sister.
6) Doctrine of Return(Radd): Under Sunni law, doctrine of Return, all the
surviving heirs. except husband or widow, participate in return of the
excess property whereas under Shia law, besides husband or widow, in certain
cases the mother and uterine brother or uterine sister also do not
participate in return.
7) Doctrine of Primogeniture: Under Sunni law, Doctrine of primogeniture
is not recognised and an eldest son has no preferential right in respect
of any property whereas doctrine of primogeniture is recognised
for certain purposes, the eldest son has exclusive right over the seal,
sword, Quran and the wearing apparel of the propositus.
8) There is one important distinction between Shia and Sunni laws regarding
the inheritance of childless widow. In the shia law, she is

22
 not entitled to land or immovable property though she has a right to her
prescribed share from her deceased husband’s movable assets. On the other
hand, Sunni law does not differentiate between immovable and movable
properties of a deceased; hence, a childless widow is entitled to have her
share from the both.
9)A true grandfather of remoter degree cannot be excluded by any
grandmother of nearer degree in Sunni law. It means that the
grandfather’s father cannot be excluded by the grandmother who is
located a degree nearer to the deceased. In Shia law, the grandmother
excludes the grandfather’s father. The reason for this difference is that Shia
law does not differentiate between males and females in excluding the
remoter relations: female relatives are as effective in this regard as male
relatives are in Sunni law.

Doctrine of Tanzil
Under the doctrine of tanzil a relative of the outer family takes the position of a
relative of the inner family through whom he or she is connected with the
praepositus and inherits what that relative would have inherited had he or she
survived the praepositus.The Shafi and Hambali schools adopt the doctrine of
tanzil.This is the only instance of a system of complete representation in the
traditional Islamic Law of Inheritance.

There are five major rules in the Tanzil system which determine the order of
priority and the actual share of each claimant amongst the distant kindred. These
five rules are as follows:

Rule 1

If the claiments are connected to the propositus through the same ordinary heir ,
the nearer in degree to this ordinary heir excludes the more remote. For e.g

DD will exclude SDD,DDD,SSD and DSD

FM will exclude FFM and MFM

23
Rule 2

Claiments who are connected to the propositus through the same ordinary
heir and are of the same degree of removal from this ordinary heir inherit on
the basis of their relationship to this ordinary heir. Their are three sub rules
to this rule:

I. If the claiments are of lineal descent( DD,SD,DDS,SDS) the male and

female descendants always inherit equally.
II. If the claiments are uncles and aunts the normal rules of exclusion and
allocation of shares of brothers and sisters will be applicable.
Full paternal aunt and consanguine paternal aunt will inherit together a
total of 2/3
 One Full paternal aunt will inherit ½
 Two or more Full paternal aunt will inherit together a total of 2/3
 Two or more Full paternal aunt will exclude consanguine paternal aunt
 M will exclude all maternal uncles and maternal aunts.
III. If the claiments are of cousins of the propositus with different parents , these
cousins inherit as their parents would have.
Any children of cousins inherit in the position of their parents.

Rule 3

If the claiments are connected to the propositus through different ordinary heirs
and are removed from these ordinary heirs to an equal degree, they inherit in the
position of the ordinary heirs through which they are connected.

For e.g distant kindred nephews and nieces(representing the brothers and sisters )
exclude all the distant kindred cousins(representing uncles and aunts)

Rule 4

If the claiments are connected to the propositus through different ordinary heirs
and vary in their degree of removal from these ordinary heirs then according to the
shafi school the claimant nearer in degree to the ordinary heir that he/she
represents excludes all those claiments who are more remote.

According to the Hanbali school the claimant nearer in degree to the ordinary heir
that he/she represents excludes all those claiments who are more remote within
the same general class of heirs.
24
Rule 5

When the only heirs are spouse and distant kindred, the spouse is given his or her
full quranic share and the remaining estate is distributed amongst the distrant
kindred according to rules 1 to 4.

Examples of Tanzil

Shafi school

Daughter’s daughter’s daughter(DDD)---------excluded because of degree chage

Full Sister’s daughter(FSD)----------1/2

Consanguine Brother’s Daughter(CBD)--------1/2

Hanbali School

Daughter’s daughter’s daughter(DDD)---------1/2

Full Sister’s daughter(FSD)----------1/2

Consanguine Brother’s Daughter(CBD)--------excluded by FSD

Doctrine of Qaraba
Under the doctrine of qaraba followed by the Hanafi school, a Blood Relative
inherits an interest in the intestate's estate according to his direct relationship to

25
the decedent and according to the Agnate rankings. Thus, descendants exclude
descendants of the decedent's parents, and the descendants of nearer ascendants
exclude the descendants of further ascendant. Within each of the classes of
descendants, the relatives who are nearer in degree to the decendent exclude the
more remote.Where relatives of the same class are all equal in degree to the
deceased, relatives who are closest in degree to ordinary heirs, who are their
ascendants but not ascendants of the decedent, exclude the others.

Under Qaraba Imam Abu Yusuf followed the apportionment on per capita basis.
While Imam Muhammad follows per stripes basis apportionment.

Sharer Abu Yusuf Shaybani

Full sister all 3/5
Consanguine sister ---- 1/5
Uterine brother ---- 1/5

 In case of Murder whether the culprit’s heirs get the property

of the relative victim?
Under the traditional Islamic law of all schools, it is only the murderer who is
debarred from succession to the estate of the victim.But a recent decision of the
Pakistani High Court, however, has greatly extended the effect of murder as an
impediment to succession.

According to this decision, a murder may result in persons other than the actual
killer being debarred from succession to estates other than that of the victim.

In Beguman v. Saroo,P.L.D.(1964),Lah 451 case, the facts were as follows-In 1948

one Dara was convicted and hanged for the murder of his brother Rehman. When
Rehman died his nearest surviving relatives were his wife Beguman, his two
daughters and his two nephews, Saroo and Manak, the sons of the murderer Dara.

It was decided by the court of first instance, correctly according to Hanafi law that-
26
 Begumn(wife)--------1/8
2 Daughters-----------2/3
Two nephews(Saroo & Manak)----------5/24(agnatic residuary heirs)
Against this decision Beguman appealed, claiming that the nephews were not
entitled to any share of the inheritance . The High court allowed this appeal
for the sins of the father to be visited upon the children and observed: Under
the principles of justice,equity and good conscience, a murderer or his
progeny cannot be allowed to benefit by his crime of murder. The murderer
may be the father alone but if the descendants claim through him even
though not merely from him their title becomes tainted, as the source or the
channel through which the inheritance has to flow becomes blocked and
extirpated by reason of the crime committed by that source.

In-vitro fertilization(IVF)
This is the process of fertilising an egg with sperm in an artificial
environment such as test-tube. A child produced using this method is
popularly called “test tube baby.”
The procedure involves stimulation of the woman with injected medications
to develop multiple follicles (egg-containing structures) in the ovaries.
Thereafter, a trans-vaginal ultrasound-guided procedure is performed to
remove the eggs from the follicles which are fertilized in the laboratory with
her partner’s sperm. The embryos are finally placed in the woman’s uterus
where they will hopefully implant and develop to result in a live birth.

According to Sheikh ‘Abd-Allaah al-Jibreen as cited by Sheikh

Muhammad Al-Munajjid, in-vitro fertilization is permissible in Islam if
certain conditions are fulfilled. They are:

i. That there is a real need for that. A delay of one or two years in having
children is not an excuse for the couple to pursue this or similar methods.
Rather they should be patient, for Allah may grant them a way out soon
without them doing anything that is haram.
ii. The woman should not uncover her ‘awrah before men when there are
female staffs available.

27
iii. It is not permissible for the husband to masturbate; rather he may be
intimate with his wife without penetration, and produce semen in this
manner.
iv. The woman’s eggs and man’s sperm should not be kept in a freezer for
later use, or another appointment, and there should not be any delay in
placing them in the woman’s uterus. Rather that should be done immediately
without any delay, lest they be mixed with others or be used for other
people.
v. The sperm must come from the husband and the egg from the wife, and
be implanted in the wife’s uterus. Anything else is not permissible at all.
vi. There should be complete trust in the doctors who are doing this
procedure.

As far as inheritance is concerned,

the most important condition is (v). This does not imply that others are not
important as well. When (v) is fulfilled, the child will inherit from both the
father and mother and vice-versa.
However, if there happens to be a mix-up such that another man’s sperm
was used to fertilise the wife’s egg, the child will inherit from the mother
only.

Conversely, if the husband’s sperm was used to fertilise another woman’s

egg, the child will inherit from the father only.
In a situation whereby the sperm and egg of others were used, there will
be no inheritance between the child and his “so-called” parents because
they are no-more-than adoptive parents.
Note that even if the child develops in the wife’s womb, so long as it’s not her
egg, the biological connection that will necessitate inheritance between them
is missing.

Doctrine of al-Awl (increase)

Doctrine of Al-Awl applies when after the allocation of shares amongst the
Primary Heirs (Ashabul-Furud) the total sum of shares is greater than one,
then all the shares are decreased proportionately.
a. An exception to this is inheritance amongst the distant kindred
under the system of Tanzil (shafii/hanbali)

28
2. Example, if the distribution of property is amongst Husband, Mother,
Daughter and Son‟s Daughter. There
shares will be:
■ Husband 1/4,
Mother 1/6,
Daughter 1/2,
Son‟s Daughter 1/6.
Total Shares = 13/12
■ Here share distribution is more than available shares. This situation is
handled by applying Doctrine of Al-Awl.
3. Doctrine of Al-Awl is based on Ijma. It was established during Caliphate of
Umar bin al-Khattab.
4. Basic point is that Quranic shares are does not represent absolute
entitlement and they are based eligibility and impediment rules, and they
based on ratios.
Distribution of Shares under Al-Awl:
a. When total shares are > 1, then we apply al-awl.
b. It involves increasing the common denominator of all the fractional shares
to same value as the sum of all the numerators. The numerators are
unaltered.
c. Awl only occurs when there is a daughter, agnatic granddaughter (however
low in chain), full sister or consanguine sister amongst the heirs. i.e. they get
2/3 (1/2 or 1/6 each)
6. Example of Al-Awl
■ Husband 1/4, Mother 1/6, Daughter 1/2, Son‟s Daughter 1/6. Total Shares
= 13/12
■ Since allocation of shares is more than available share, we apply Al-Awl.

Doctrine of ar-Radd(Decrease) (ٌ‫)دششا‬

Al-Radd applies when after the allocation of shares amongst the “Fixed
Sharer” there is still a left over (residue), and there are no Secondary
Heir (residuary) to claim this residue. Then this residue is returned
back to certain primary heirs.
The Doctrine of Al-Radd is based on Quranic verse 33:6 “Blood realtives are
nearer, the one to the other, than other believers”. Hence, those prefer
doctrine of Al-Radd suggested that its preferred to give residue to a any
blood relative then giving it to Bait-ul-Maal.

29
Example, A man dies leaving behind a widow and a daughter as heirs. Their
Fixed Shares will be:
■ Total Estate for inheritance is $800,000
■ Widow‟s share is 1/8 ($100,000), Daughter 1/2 ($400,000). Total shares =
5/8 ($500,000)
■ Here Residue (left over) is 3/8 ($300,000).
■ This residue needs to be returned back to the heirs. This returning back is
called Ar-Radd.

There is difference of opinion on practicing Ar-Radd.

a. Hanafi and Hanbali fiqh adopted the doctrine of ar-Radd.
b. Zaid bin Thabit, Imam Shafii and Imam Malik did not apply ar-Radd and
all residues were given to Bait-ul-Maal. However Shafii jurist accept ar-Radd
if there is no properly administered Bait-ul-Maal (such as these days).
There is also difference of opinion on who is eligible for Ar-Radd and how it
should be distributed. One group states that all Quranic Heirs are eligible for
Al-Radd. This include Osman bin Affan (ra). Other group includes Abdullah
bin Masood and Abdullah bin Abbas (ra) had different views.

Distribution of Share under Ar-Radd

a. Distribute all shares to (Ashab-ul-Furud) Primary Heirs, if there is left over
(residue) then
b. Firstly Secondary Heirs are entitled to Residue first, but if there are no
Secondary Heirs, then
c. Residue is given back to the Primary Heirs, except the Spouse.
Spouse is no considered a Blood relative, and since the Doctrine of Radd
is based on Verse 33:6 (Blood Relative first), spouse is not considered for Ar-
Radd.
d. Normally following are the sharer of Ar-Radd, (i.e. Quranic Sharers):
i. Mother, True Grandmother
ii. Daughter, Son‟s Daughter
iii. Full Sister, Consanguine sister
iv. Uterine brother, uterine sister
v. Remember, when father is alive, he gets all residues any ways, if there are
no other claimants from secondary heirs.
vi. Spouse is excluded, as mentioned.

Example : Al-Radd
30
 ■ Total Estate for inheritance is $800,000
■ Widow‟s share is 1/8 ($100,000), Daughter 1/2 ($400,000). Total shares =
5/8 ($500,000)
■ Here Residue (left over) is 3/8 ($300,000).
Widow is excluded from Al-Radd and total Residue was returned to Daughter.
■ Widow gets 1/8 fixed share because there is a child (i.e. Daughter)
■ Daughter get 1/2 fixed share because she is the only Daughter.
■ Daughter get additional residue of 3/8 making her total share as 7/8 (i.e.
1/2+3/8)

Reforms in succession of the muslim countries around the world

● Daughters excluding collateral male agnates

● Indonesian law reform and case law related to male-female equality

● Somalia inheritance reform

● Reforms to concept of radd (return)

● Orphaned grandchildren

● Adopted children and parents

● Bequests

A number of countries have reformed various aspects of their inheritance laws to

better serve the needs of modern society. The following are a few brief examples of
how countries have addressed some of the unjust aspects of traditional inheritance
rules.

Daughters excluding collateral male agnates

31
In the Sunni schools of law, one daughter can inherit up to one-half of the estate
and two or more daughters can share in two-thirds of the estates, but the
remainder must revert to a male agnate residuary, regardless of how close or
distant a relative he is. Iraq adopted the Shi’ite rules of inheritance, which allows
female descendents to exclude such collateral male agnates (Esposito 2001). In
reforms in 1959, Tunisia also adopted a rule that allows daughters and sons’
daughters to exclude collateral heirs

Indonesian law reform and case law related to male-female equality

In the past 25 years, Indonesia has been standardising and reforming its Muslim
family and inheritance laws. In the late 1980s and early 1990s, the laws were
compiled into a document entitled Kompilasi Hukum Islam (Compilation of Islamic
Laws). In the process of this compilation, the Government’s Religion Minister
presented a proposal to equalise inheritance between men and women so as to
bring it into line with Indonesian adat, or customary law, and theoretical
arguments of Indonesian scholars. According to Mark Cammack (2000), “The
primary justification put forward by the government in support of the proposal
was that treating male and female relatives equally is consistent with Southeast
Asian social realities and Indonesian legal sensibilities.” This proposal failed before
it was actually outlined in a formal draft.

However, as described by Cammack (2000), in a 1994 decision of the Indonesian

Supreme Court (H. Nur Said bin Amaq Mu'minah, Reg. No. 86 K/AG/1994) that
considered the inheritance rights of a daughter in competition with collateral
relations, the Court said that either a male or female child of the decedent could
exclude collaterals.

The case was based on an interpretation of Surah an-Nisa’ 4:176, which allows
collaterals to inherit in the absence of a “child” of the decedent. Although the Arabic
word for child (walad) often refers to a child of either sex, and has been interpreted
as such in other inheritance verses, a majority of Sunni scholars have interpreted
the word walad in verse 176 as referring to male children only, such that agnatic
siblings are entitled to a share of the inheritance when the deceased is survived by
a daughter, but not when the deceased is survived by a son. As Cammack (2000)
explains,

32
This interpretation of the Koran was necessary in order to preserve consistency
with a well known Tradition in which the Prophet divided the deceased's estate
between his daughters and their uncle, the deceased's brother. It was also
consistent with the general principle that Koranic heirs do not exclude other
relatives of the inner family (Coulson, 1971: 36-37). Most importantly, though,
interpreting the word "child" in verse 176 to refer to sons but not daughters had
the effect of systematically advantaging male relatives.

In the Kompilasi Hukum Islam, the absence of a child is required for collaterals to
inherit, but the Indonesian word for child (anak) is, like walad, also gender-neutral.
The lower courts followed the traditional Sunni rules, but the Supreme Court
reversed. According to Cammack (2000),

In a very brief and conclusory decision, the Court stated simply that "so long as the
deceased is survived by children, either male or female, the rights of inheritance of
the deceased's blood relations, except for parents and spouse, are foreclosed". The
only reasoning or authority cited in support of this interpretation was a brief
reference to the views of Ibnu Abbas, one of the companions of the Prophet, who
construed the word walad in Koran 4: 176 as embracing both male and female
children.

If this is an indication of the direction in which Indonesia is heading with regard to

inheritance rules, there are possibilities for neutralising the systematic advantage
provided to male relatives by the traditional human interpretations of the Qur’an,
like the interpretation of the word walad in Surah an- Nisa’ 4:176.

Somalia inheritance reform

In Somalia, males and females are now completely equal with regard to inheritance
rights. When there are no children or grandchildren, the widow or widower
inherits one-half of the estate. When children or grandchildren exist, this amount is
reduced to one-fourth of the estate. If the deceased leaves only a parent, only a
sibling or only a single child, the parent or sibling or child, regardless of gender,
inherits the entire estate (Esposito 2001).

Reforms to concept of radd (return)

In the traditional Maliki rule about the return of excess property, if the amount of
shares to be distributed to the sharers is less than 100% of the estate and there is
33
no residuary, the radd (return) goes to bayt al- mal, the public treasury. Tunisia
rejected this rule and allows wives to take a portion of the extra shares. Sudan,
Egypt, Syria, India, and Pakistan have adopted similar rules.

Orphaned grandchildren

According to all four of the Sunni schools, the deceased’s orphaned grandson or
granddaughter (orphaned by the death of the deceased’s son or daughter) is totally
excluded from inheriting if a son exists. The son excludes his nieces and nephews,
and, in the traditional tribal society, was expected to support them as he would
support his own children. But this is less likely to happen in modern societies
where the nuclear family is emphasised and each nuclear family is an independent
branch of the extended family.

In the Shafi’i and Maliki rules, a predeceased daughter’s children are excluded even
if no other son or daughter exists. The portion of the estate that would have gone to
the daughter (and then to her children), had she still been alive, goes to male
agnates instead. If there are no sharers or residuaries, the estate will go to the
public treasury (bayt al-mal).

Egypt
In 1946, Egypt addressed this problem by providing for an obligatory bequest for
the orphaned grandchild. Syria, Morocco, and Tunisia have similar systems, though
Syria’s applies only to the children of the deceased’s son and not his daughter.
Tunisia limits the need for obligatory requests to cases where the grandchild was
not already named to receive a bequest. The total amount of the obligatory bequest
for all grandchildren cannot equal more than one-third of the estate (Esposito
2001). In the 1961 Muslim Family Laws Ordinance, Pakistan provided for
representational succession by lineal descendents (Esposito 2001).

Morocco
Morocco originally adopted a system of obligatory bequests for orphaned
grandchildren but limited it to the children of a predeceased son. In Morocco’s
2004 reforms to its Moudawana (Family Code), the children of either sons or
daughters take an obligatory amount, according to the total size of the estate.
According to Femmes du Maroc, a women’s non-governmental organisation, the old

34
practice was based on obsolete tribal custom, not on religious or legal grounds, and
had the effect of unfairly benefiting male heirs only (Weingartner 2005).

Indonesia
The Indonesian Kompilasi Hukum Islam (Compilation of Islamic Laws) provides
for representation of pre-deceased heirs in article 185: “An heir who dies before
the deceased may be represented by his children”, but “The share of the
representative may not exceed the share of an heir of the same degree [of
relationship] as the person represented” (Cammack 2000, pp.12-13).

Adopted children and adoptive parents

Relationships based on adoption are generally excluded from traditional Islamic

inheritance rules. In Indonesia’s Kompilasi Hukum Islam (Compilation of Islamic
Laws), however, an adopted child must receive an obligatory bequest of up to one-
third of the estate when the child has not been named in an express bequest by the
adoptive parents. The adoptive parents also receive an obligatory bequest out of
their child’s estate. In Islamic Southeast Asia, it is common to raise children outside
of the birth home, so the obligatory bequest provides for fair inheritance
distribution to the adopted children. This rule derived from the Egyptian law
providing for obligatory bequests for orphaned grandchildren.

Bequests

Under the traditional Sunni rules of inheritance, bequests of up to one-third of the

estate can be made, but not to an heir unless (for some schools) the other heirs
agree. As an attempt to expand the rights of individuals to dispose of their property
according to their wishes, Egypt, Sudan, and Iraq adopted the Shi‘ite law of
inheritance, which allows heirs to receive a bequest of up to one-third of the estate
without the consent of the other heirs (Hallaq 1997; Esposito 2001). In addition,
Tunisia and Somalia allow bequests to be made in favour of an heir or beyond the
one-third limit if other heirs agree to it. Tunisia also requires a bequest be carried
out for the entire estate if there are no heirs or creditors so that the estate does not
go to the public treasury (Esposito 2001).

Problems & Solutions

35
 1. A is survived by a daughter, a full sister and father’s father. Distribute his
estate among his heirs according to Hambali,Shafi and Maliki schools of
Sunni law under doctrine of Zaid.(2012)

ESTATE DISTRIBUTION
Hambli/Maliki/Shafi School
Daughter gets 1/2
Father of father-2/3 of ½-1/3
Full sister gets-1/3 of ½-1/6
Illustration:
(1) Daughter
One daughter and there is no sons, so she gets half
(2)According to third advantages rules of Zaid,
Sisters will never inherit as Quranic heirs but as residuaries taking half the
share of grandfather by complying tasib rule.
So FF will get 2/3 of the residue and FS will get 1/3 of the the residue

Husband, mother, a full brother, a consanguine brother and a uterine

sister.(2012)
Estate Distribution
Husband gets --½(Q)
Mother gets--- 1/6(Q)
Full brother gets ---1/6(R)
Consanguine brother gets ---NONE (excluded by FB)
Uterine Sister gets--- 1/6(Q)
Illustration:
(1) Husband
Preapositus left no children nor grandchildren, so husband gets half
(2) Mother
Preapositus left more than one sibling, so mother gets one sixth
(3) Uterine Sister
Uterine Sister will get her Quranic share of one sixth
(4)Full brother
Consanguine brother is deprived because of Full brother. Brother will take
the residue of 1/6

 Problem
If a person died survived by
1) 1 Full Brother & 3 Full Sisters
36
2) 5 CONSANGUINE Borthers and 2 CONSANGUINE Sisters
3) 1 widow of Uterine Brother & 1 Uterine Sister
How should the distribution happen?

Solution
1 FULL BROTHER = 1/3 share
3 FULL SISTERS = 1/2 share (Each Full Sister receives 1/6 share)
1 UTERINE SISTER = 1/6 share
5 CONSNGUINE BROTHERS/2 CONSANGUINE SISTERS = Nil (The Full
Siblings eliminate the Consaguine Siblings as per the consensus of all
scholars)
TOTAL = 1/3 + 1/2 + 1/6 = 6/6 = 1 (whole)

37