Mulla, Inheritance

CHAPTER VII HANAFI LAW OF INHERITANCE
Mulla Principls of Mahomedan Law, 22nd ed

Mulla
Mulla Principls of Mahomedan Law, 22nd ed > Mulla Principles of Mahomedan Law, 22nd ed > CHAPTER
VII HANAFI LAW OF INHERITANCE
Works of authority: Al Sirajiyyah and Al Sharifiyyah The principal works of authority on the Hanafi
Law of inheritance are the Sirajiyyah, composed by Shaikh Sirajuddin, and the Sharifiyyah, which is a
commentary of the Sirajiyyah written by Sayyad Shariff. The Sairjiyyah is referred to in this and
subsequent chapters by the abbreviation Sir, and the references are to the pages of Mr Rumsey’s edition of
the translation of that work by Sir William Jones, as that edition is easily procurable. See also Sale’s
Translation of the Koran, Sura IV.
End of Document
§ 61. Classes of heirs
Mulla
VII HANAFI LAW OF INHERITANCE > A.—THREE CLASSES OF HEIRS
A.—THREE CLASSES OF HEIRS
There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (3) Distant Kindred:
(1) “Sharers” are those who are entitled to a prescribed share of the inheritance;
(2) “Residuaries” are those who take no prescribed share, but succeed to the “residue” after the claims
of the sharers are satisfied;
(3) “Distant Kindred” are all those relations by blood who are neither Sharers nor Residuaries.1
Sir, 12-13. The first step in the distribution of the estate of a deceased Mahomedan, after payment of his
funeral expenses, debts, and legacies, is to allot their respective shares to such of the relations as belong to
the class of sharers and are entitled to a share. The next step is to divide the residue (if any) among such
of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the
whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such
of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so
long as there is any heir belonging to the class of sharers or residuaries. But there is one case in which the
distant kindred will inherit with a sharer, and that is where the sharer is the wife or husband of the
deceased. Thus, if a Mahomedan dies leaving a wife and distant kindred, the wife as sharer will take her
share which is one-fourth and the remaining three-fourths will go to the distant kindred. And if a
Mahomedan female dies leaving a husband and distant kindred, the husband as sharer will take his half
share, and the other half will go to the distant kindred. To take a simple case: A dies leaving a mother, a
son and a daughter’s son. The mother as sharer will take her share one-sixth and the son as residuary will
take the residue five sixth. The daughter’s son, being one of the class of distant kindred, is not entitled to
any share of the inheritance.
The question as to which of the relations belonging to the class of sharers, residuaries, or distant kindred,
are entitled to succeed to the inheritance depends, on the circumstances of each case. Thus, if the
surviving relations be a father and a father’s father, the father alone will succeed to the whole inheritance
to the entire exclusion of the grandfather, though both of them belong to the class of sharers. And if the
surviving relations be a son and a son’s son, the son alone will inherit the estate, and the son’s son will not
be entitled to any share of the inheritance, though both belong to the class of residuaries. Similarly, if the
surviving relations belong to the class of distant kindred, eg, a daughter’s son and a daughter’s son’s son,
the former will succeed to the whole inheritance, it being one of the rules of succession that the nearer
relation excludes the more remote.
1 Abdul Serang v Putee Bibi, (1902) 29 Cal. 738 : (1901) ILR 29 Cal 739; Sk. Akbar Ali v Sk. Lokman, AIR 1973 Ori. 129 : 38 (1972)
CLT 1301.
End of Document
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§ 62. Definitions
Mulla
VII HANAFI LAW OF INHERITANCE > A.—THREE CLASSES OF HEIRS
A.—THREE CLASSES OF HEIRS
§ 62. Definitions
(a) “True grandfather” means a male ancestor between whom and the deceased no female intervenes.
Thus, the father’s father, father’s father’s father and his father how highsoever are all true grandfathers.
(b) “False grandfather” means a male ancestor between whom and the deceased a female intervenes.
Thus, the mother’s father, mother’s mother’s father, mother’s father’s father, father’s mother’s father, are
all false grandfathers.
(c) “True grandmother” means a female ancestor between whom and the deceased no false grandfather
intervenes.
Thus, the father’s mother, mother’s mother, father’s mother’s mother, father’s father’s mother, mother’s
mother’s mother, are all true grandmothers.
(d) “False grandmother” means a female ancestor between whom and the deceased a false grandfather
intervenes.
Thus, the mother’s father’s mother is a false grandmother. False grandfathers and false grandmothers
belong to the class of distant kindred.
(e) “Son’s son how lowsoever” includes son’s son, son’s son’s son, and the son or a son how lowsoever.
(f) “Son’s daughter how lowsoever” includes son’s daughter, son’s son’s daughter and the daughter of a
son how lowsoever.
In SM Dawood Bibi v AB Pulavar,2 a rule of evidence was considered. Evidence was found of ancestry in
the recital of names in funeral prayers.
§ 62. Definitions
2 S.M. Dawood Bibi v AB Pulavar, AIR 1972 Mad 228 [LNIND 1971 MAD 239]: 1972-85-LW 225.
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§ 63. Sharers
Mulla
VII HANAFI LAW OF INHERITANCE > B.—SHARERS
B.—SHARERS
§ 63. Sharers
After payment of funeral expenses, debts, and legacies, the first step in the distribution of the estate, of a
deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers, and
which again of these are entitled to a share of the inheritance, and, after this is done, to proceed to assign
their respective shares to such of the sharers as are, under the circumstances of the case, entitled to
succeed to a share. The first column in the accompanying table (p 68) contains a list of Sharers; the
second column specifies the normal share of each sharer; the third column specifies the conditions which
determine the right of each sharer to a share, and the fourth column sets out the shares as varied by special
circumstances.
Illustrations
Note.—The italics in the following and other illustrations in this chapter indicate the surviving relations. It
will be observed that the sum total of the 5 shares in all the following illustrations equals unity ie exhausts
the inheritance:—
§ 63. Sharers
Note.—It is important to note that though the sisters do not inherit at all, they affect the share of the
mother and prevent her from taking one-third. This proceeds upon the principle that a person, though
excluded from inheritance, may exclude others wholly or partially (Sir 28). In the present case the
exclusion is partial, that is, the share of the mother is reduced, she taking one-six instead of one-third,
which latter share she would have taken if the deceased had not left sisters. In illustration (g) also, the
exclusion of the mother is partial. Ill. (q) is a case of total exclusion.
It is stated in the Sirajiyyah (p 28) that, “A person excluded may, as all the learned agree, exclude others,
as, if there be two brothers or sisters or more, on whichever side they are, they do not inherit with the
father of the deceased, yet they drive the mother from a third to a sixth”. This instance is split into ills, (e)
and (g). Ill. (q) is another instance of the same rule. It is taken from Baillie’s Digest Pt 1, p 706. The
above rule does not apply where a particular heir is excluded by custom or statute. Thus, if the daughter is
excluded by the Watan Act the wife’s share is not reduced from one-fourth to one-eight.3 See §59 above.
Note.—The mother takes one-sixth, and not one-third, where there are two or more brothers or two or
more sisters, or one brother and one sister, or two or more brothers and sisters. The brother and sister,
though they are excluded from inheritance by the father, prevent the mother from taking the larger share
one-third. See note to ill. (3).
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§ 63. Sharers
Note.—But for the husband and father, the mother in this case would have taken one-third, as there are
neither children not brothers nor sisters. As the deceased has left a husband and father, the mother is
entitled only to one-third of what remains after the husband’s share is allotted to him. The husband’s share
is half, and what remains is half, and one-third of half is one-sixth. The reason of the rule is clear, for if
the mother took one-third, the residue for the father would only be 1 – (1/2+one-third) = 1/6, that is, half
the share of the mother, while as a general rule, the share of a male is twice that of a female of parallel
grade (Sir. 22). For the case where deceased leaves a widow and father, see ill. (j) below.
Note.—The mother takes one-third, for the father’s father does not reduce her share from one-third of the
whole to one-third of the remainder after deducting the husband’s share.
Note.—In this case, the mother would have taken one-third but for the widow and father, for there are
neither children nor brothers nor sisters. As the widow and father are among the surviving heirs, the
mother is entitled to one-third of the remainder after deducting the widow’s share. The widow’s share is
one-fourth, the remainder is three-fourth, and the mother’s share is one-third of three-fourth, that is, one-
fourth. See ill. (h) above and the note thereto.
Note.—The mother takes one-third, for the father’s father does not reduce her share from one-third of the
whole to one-third of the remainder after deducting the widow’s share.
TRUE GRANDFATHER AND TRUE GRANDMOTHER
Cart 1
Table of Shares—Sunni Law
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§ 63. Sharers
(b) The collective share is always divided equally among those to whom it is allotted.
(c) A Mahomedan can have as many as four wives at a time.
(d) If there be a son’s son and a son’s son’s daughter, the former is a higher son’s son in relation to the
latter. If there be a son’s son and a son’s daughter the former is a lower son’s son in relation to the latter.
And if there be a son’s son and son’s daughter or a son’s son’s daughter, the former is in equal son’s son
in relation to the latter, both being equally removed from the deceased.
Note.—The father’s mother is not excluded by the father’s father, for the latter is not an intermediate, but
an equal, true grandfather.
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§ 63. Sharers
Note.—The father’s father’s mother is excluded by the father’s father for he is an intermediate, true
grandfather, the father’s father’s mother being related to the deceased through him.
Note.—The father’s mother’s mother (who is a true pat, grandmother) is not excluded by the father’s
father (who is a true grandfather), for though he is nearer in degree, he is not in relation to her an
intermediate true grandfather, as the father’s mother is not related to the deceased through him, but
through the father.
Note.—This illustration is taken from Baillie, 706. The father’s mother, though she is excluded by the
father, excludes the mother’s mother’s mother. This proceeds upon the rule that one who is excluded may
himself exclude others wholly or partially. See note to illustration (e): in that case the exclusion of the
mother by the sister was partial, for she did take a share, namely, one-sixth. In the present case, however,
the exclusion of the mother’s mother’s mother is entire. It need hardly be stated that if the deceased had
not left the father’s mother, the mother’s mother’s mother would have taken one-sixth, for being a true
maternal grandmother, she is not excluded by the father.
DAUGHTERS AND SON’S DAUGHTERS h.l.s.
Note.—The son’s daughters take per capita and not per stirpes. The two-thirds is not therefore divided
into parts, one for the son’s daughter by one son, and the other for the other two by another son, but it is
divided into as many parts as there are son’s daughters irrespective of the number of sons through whom
they are related to the deceased. The reason is that the Sunni Mahomedan law does not recognize any
right of representation (see §53), and the son’s daughters do not inherit as representing their respective
fathers, but in their own right as grand-daughters of the deceased. The same principle applies to the case
of son’s sons, brother’s sons, uncles’ sons, etc. See Table of Residuaries.
Note.—There being only one daughter, the son’s daughters are not entirely excluded from inheritance, but
they take one-sixth, which together with the daughter’s half, makes up two-third, the full portion of
daughters.
Note.—The rule of succession as between daughters and son’s daughters applies, in the absence of
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§ 63. Sharers
daughters, as between higher son’s daughters and lower son’s daughters (Sir. 18). There being only one
son’s daughter in the present illustration, the son’s son’s daughter is not entirely excluded from
inheritance, but she inherits one-sixth, which together with the son’s daughter’s half, makes up two-third,
the full share of son’s daughters in the absence of daughters.
SISTERS
Note.—There being only one full sister, the consanguine sisters are not excluded from inheritance, but
they inherit one-sixth which, together with the sister’s half, makes up two-third, the collective share of full
sisters in the inheritance (Sir. 21).
Sir. 14-23.—The principal point involved in the Table of Sharers are explained in their proper places in
the notes appended to the illustrations. The illustrations must be carefully studied, as it is very difficult to
understand the rules of succession without them. The principles underlying the rules of succession are set
out in the notes on §65 below. It will be observed that the illustrations are so framed that the sum total of
the shares does not exceed unity. For cases in which the total of the shares exceeds unity, see the next
section.
In Ibrahim Ashraf Patel v Jamrood Bee,4 the question which arose before the Aurangabad Bench of the
Bombay High Court was-what would be the share of two widows? Whether on marriage a widow would
lose her one-sixteen share in the property? The Court held that the estate of a deceased Muslim
immediately devolves upon his heirs at the moment of his death and they get the property in proportion to
the share ordained by Mahomedan Law. In the instant case, a person died leaving behind two widows and
three daughters. The Court held that two widows would take one-eight share collectively. Subsequent
marriage of one of the widows does not at all abrogate the share which was already devolved on the
widow immediately after the death of her husband.
The sharers are twelve in number. Of these there are six that inherit under certain circumstances as
residuaries, namely, the father, the true grandfather, the daughter, the son’s daughter, the full sister, and
the consanguine sister. See the list of Residuaries given in §65 below, and the notes on that section.
The Karnataka High Court has held that in the light of the principles of Muslim law, the widow of the pre-
deceased son cannot claim any share in the property left behind by her mother in-law. She is excluded
from claiming any share in the light of her husband dying prior to the death of his mother.5
One very important decision was given by the Bombay High Court in Mohammad Jaheer v MV
Mohammad Hussain Watayta.6 It observed that there is no prohibition under the Muslim Law for a
Muslim female to perform a second marriage, if her earlier marriage does not subsist. The children born
out of such marriages from different husbands, shall be the legitimate children called as uterine brothers
and sisters entitled to be classified as “Sharers” to inherit the estate of a deceased Muslim. Significantly,
the Muslim Law does not make any distinction for the purposes of inheritance in respect of a property
owned by a Muslim female or male. The property of a Muslim female dying intestate Will, therefore, be
governed by the same rules of inheritance and succession, as if it is a property owned by a Muslim male
dying intestate. In view of this, though the uterine brothers and sisters are the real sons and daughters of
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§ 63. Sharers
the same mother, they cannot be classified as “Residuaries” to inherit the estate of their mother, but they
are to be classified as ‘Sharers’ as if they are inheriting the estate of putative father. Hence, daughter
would be entitled to share equal to her uterine brother.
3 Aminabi v Abasaheb, (1931) 55 Bom 401 : 131 IC 892 : AIR [1931] Bom 266.
4 Ibrahim Ashraf Patel v Jamrood Bee, 2002 (2) Bom CR 295 : 2001 (3) MhLJ 886 [LNIND 2001 AUG 88] : 2002 (1) ALLMR 601.
5 Ashabi v Faziyabi, AIR 2004 Kant. 476 [LNIND 2004 KANT 365]: ILR 2004 Kar 3599 : 2004 (6) Kar LJ 267 [LNIND 2004 KANT
365].
6 Mohammad Jaheer v M. V. Mohammad Hussain Watayta, AIR 2013 Bom 77 [LNIND 2013 NGP 50]: 2013 (2) MhLJ 294 [LNIND
2013 NGP 50] : 2013 (7) Bom CR 669.
End of Document
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§ 64. Increase (Aul.)
Mulla
VII HANAFI LAW OF INHERITANCE > B.—SHARERS
B.—SHARERS
If it be found on assigning their respective shares to the Sharers that the total of the shares exceeds unity
the share of each Sharer is proportionately diminished by reducing the fractional share to a common
denominator, and increasing the denominator so as to make it equal to the sum of the numerators.
Of course, an anomaly arises where the sum of fractions allotted to Koranic heir exceeds unity. This
anomaly arises only where either daughter’s class (D, SD) or sister’s class (real sister or consanguine
sister) is present. In their absence no such anomaly can ever arise.
Note.—The sum total of half and two-third exceeds unity. The fractions are therefore reduced to a
common denominator, which, in this case, is 6. The sum of the numerators is 7, and the process consists in
substituting 7 for 6 as the denominator of the fraction three sixth and four sixth. By so doing the total of
the shares equals unity. The doctrine of “Increase” is so called because it is by increasing the denominator
from 6 to 7 that the sum total of the shares is made equal to unity.
Sir. 29-30.—For cases in which the total of the shares is less than unity, see §66 below.
Doctrine of Pulpit (Al-Mimbariya).—The doctrine of pulpit is credited in the name of Hazrat Ali, the 4th
Caliph of Islam, a great jurist of Islam. The name “pulpit” of this doctrine is related to an incident which
had happened with him. Once he was delivering a sermon from the pulpit (mimber) of a mosque, he was
asked how much the widow whose husband had left behind his both parents and two daughters inherits?
He promptly replied, “The wife’s one-eight becomes one-nine.”7 The complete solution of the problem
posed is as under.
First Step –allot the shares to each sharer.
Second Step-make same denominator to find out whether the total sum exceeds unity.
Third Step-substitute the denominator by the total sum of the numerators.
7 Fatawa-e-Alamgiri, vol 10, Urdu Translation by Amir Ali, p 424.
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§ 65. Residuaries
Mulla
VII HANAFI LAW OF INHERITANCE > C.—RESIDUARIES
C.—RESIDUARIES
§ 65. Residuaries
If there are no Sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the
whole inheritance or the residue, as the case may be, devolves upon Residuaries in the order set forth in
the annexed table (p 76).
The Residuaries or Agnatic heirs were the principal heirs before Islam; they continue to remain the
principal heirs in Sunni law. Their premier position is, in Islam, always subject to the claims of near
relations mentioned as the Koranic heirs. First they are satisfied by giving them their Koranic shares.
Residuaries are the relations whose rights were also recognized by tribal laws in Saudi Arabia before
Islam.
The rights of residuaries are recognised by the Holy Quran (by implication) and by the traditions of the
Prophet (PBUH) in very specific terms.
The Holy Quran declares:
from what is left by parents and near kindred, there is a share for men and a share for woman, whether the property be small or large-a
determinate share.”8
“To (benefit) every one, we have appointed shares and heirs to property left by parents and near relatives.”9
“Allah directs you concerning your children (their inheritance), to the male a portion equal to that of two females.”10
“They ask thee for a legal decision. Say: Allah directs (thus) about those who leave no descendants or ascendants as heir. If it is a man
that dies, leaving a sister but no child, she shall have half the inheritance. If (such a deceased was) a woman who left no child, her
brother takes her inheritance. If they are brothers and sisters, (they share), the male having twice the share of the female.11
The first two verses are clear proof that blood relations are entitled to inherit. Blood relations definitely
include residuaries (the male agnates).12
§ 65. Residuaries
Hadiths
The Sahih-al-Bukhari provides:—
1. Narrated Ibn Abbas, the Prophet (PBUH) said, “Give the faraid (the shares of the inheritance that
are prescribed in the Quran) to those who are entitled to receive it. Then whatever remains, should
be given to the closest male relative of the deceased.”13
Abu Daud mentions:
2. Imran Bin Hussain said: A man came to the Prophet (PBUH) and said my son’s son died: What do
I receive from his estate? He replied: “you receive a sixth. When he turned away he called him
and said, you receive another sixth when he turned away, he called him and said: the other sixth is
an allowance (beyond what is due).”14
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§ 65. Residuaries
3. Ibn Abbas reported the Apostle of Allah (PBUH) as saying: “Divide the property among those
whose shares have been prescribed in the Book of Allah, and what remains from the prescribed
shares goes to the nearest male heirs.”15
It is submitted that in the light of above Quranic verses and Hadiths, the whole law of inheritance should
be understood and interpreted.
Illustrations
[Note.—The residue remaining after satisfying the sharers’ claims is indicated in the following
illustrations thus.]
No. 1.—Sons and Daughters
Note.—The daughter cannot inherit as a sharer when there is a son. But if the heirs be a daughter and a
son’s son, the daughter as a sharer will take half, and the son’s son as a residuary will take the remaining
half.
Note.—The residue after payment of the widow’s share is seven eight.
Note.— The residue in the above case is 1—(1/4+1/6)=7/12. If there were two sons and three daughters,
each son would take two seventh of 7/12=1/6, and each daughter one-seventh of 7/12=1/12.
No. 2—Son’s Sons h.l.s and Son’s Daughters h.l.s.
Note.—Where there is a son’s son, the son’s daughter cannot inherit as a sharer but she inherits as a
residuary with him. Similarly, a son’s son’s daughter cannot inherit except as a residuary when there is a
son’s son’s son.
Note.—There being only one daughter, the son’s daughter would have taken one-sixth as sharer (see
Table of Sharers, Chart 1, No. 8), if the deceased had not left a son’s son. But as the son’s son is one of
the heirs, the son’s daughter can inherit only as a residuary with the son’s son.
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§ 65. Residuaries
Note.— In this case the son’s daughter is not precluded from inheriting as a sharer for there is no relation
who would preclude her from succeeding as a sharer (see Table of Sharers, Chart 1, No 8, 3rd column).
And it will be seen on referring to the Table of Residuaries that the only case in which the son’s daughter
inherits as a residuary with the son’s son’s son (who is a lower son’s son) is where she is precluded from
succeeding as a sharer (see ill. (k) below).
Note —There being only one daughter, the son’s daughter is entitled to one-sixth as a sharer. Since she is
not precluded from inheriting as a sharer, she does not become a residuary with the son’s son’s son (who
is a lower son’s son).
Note.—There being two daughters, the son’s daughter cannot inherit as a sharer. She, therefore, inherits as
a residuary with the son’s son’s son (who is a lower son’s son).
Note.—The son’s daughters in this case do not inherit as residuaries with the son’s son’s son, for they are
not precluded from inheriting as sharers.
Note.—There being two daughters, the son’s daughter cannot inherit as a sharer. She, therefore, inherits as
a residuary with the son’s son’s son (who is a lower son’s son). The son’s son’s daughter is entitled to
inherit as a residuary with the son’s son’s son who is an equal son’s son in relation to her. Both these
female relations inherit therefore as residuaries with the son’s son’s son, each taking one-twelve. This
illustration presents two peculiar features. The one is that the son’s son’s daughter, though remoter in
degree, shares with the son’s daughter. The other is that the son’s daughter succeeds as a residuary with a
lower son’s son. If this were not so, the son’s son’s daughter would inherit to the exclusion of the son’s
daughter, as result directly opposed to the principle that the nearest of blood must take first (Sir. 18-19).
No. 3—Father
Note.—Here the father inherits as a sharer. (see Table of Sharers, Chart 1, No. 1).
Note.—Here the father inherits as a residuary, as there is no child or child of a son h.l.s. (See Table of
Sharers, Chart 1, No. 1)
Note.—Here the father inherits both as a sharer and residuary. He inherits as a sharer, for there is a
daughter, and he inherits the residue one-third as a residuary, for there are neither sons nor son’s sons
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§ 65. Residuaries
h.l.s. The father may inherit both as a sharer and residuary. He inherits simply as a sharer when there is a
son or son’s son h.l.s (see ill. (n) above). He inherits simply as a residuary when there are neither children
nor children of sons h.l.s (see ill. (o) above). He is both a sharer and a residuary when there are only
daughters or son’s daughters (h.l.s), but no sons or son’s sons h.l.s. as in the present illustration. The same
remarks apply to the true grandfather h.h.s. In fact the father and the true grandfather are the only relations
who can inherit in both capacities simultaneously.
No. 4—True Grandfather h.h.s.
Note.—Substitute “true grandfather” for “father” in ills, (n), (o) and (p). The true grandfather will succeed
in the same capacity and will take the same share as the father in those illustrations.
Nos. 5&7—Brothers and Sisters
Note.—The sister cannot inherit as a sharer when there is a brother, but she takes the residue with him.
Full brother16 .. .. Two third (as residuary)
Full sister .. .. one-third (as residuary)
Con. Sister .. .. .. (excluded by full brother)
The fact of the mutation of the name of the son cannot be conclusive on the point that his sister had lost
her right and interest in the property coming down from their father. It is still possible for the sister to
contend that the name of the brother had been mutated in a representative capacity, but this fact had to be
established by her by cogent evidence; otherwise the fact of the plots having been exclusively mutated in
the name of the brother would be strong evidence that the brother got exclusive possession of the property
on the death of the father and that the sister did not get such possession and hence lost her rights.17
No. 6—Full Sisters with Daughters and Son’s Daughters
Note.—The full sister inherits in three different capacities: (1) as a sharer under the circumstances set out
in the Table of Shares; (2) as a residuary with full brother when there is a brother; and, failing to inherit in
either of these two capacities (3) as a residuary with daughters, or son’s daughters h.l.s. or one daughter
and a son’s daughter h.l.s. provided there is no nearer residuary. Thus, in the present illustration, the sister
cannot inherit as a sharer, because there is a daughter (or son’s daughter h.s.s.). And as there is no brother,
she cannot inherit in the second of the three capacities enumerated above. She therefore takes the residue
half as a residuary with the daughter (or son’s daughter), for there is no residuary nearer in degree. If this
were not so, the brother’s son, who is a more remote relation, would succeed in preference to her.
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§ 65. Residuaries
18
Note.—Here the only capacity in which the full sister could inherit is that of a residuary with the daughter
and son’s daughter. But the residuary succeeds to the residue, if any, after the claims of the sharers are
satisfied, and in the present case there is no residue. The sum total of the sharers exceeds unity, and the
case is one of “Increase.”
No. 8—Consanguine Sisters with Daughters and Son’s Daughters.h.l.s.
Note.—Consanguine sisters inherit as residuaries with daughters and son’s daughters in the absence of full
sisters. Substitute “consanguine sister” for “full sister” in ills, (r) to (x), and the shares of the several heirs
will remain the same, the consanguine sister taking the place of the full sister. Substitute also in the note
to ill. (r) “consanguine brother” for “full brother.”
Consanguine brothers and brothers’ sons are both residuaries but a consanguine brother excludes a
brother’s son being a higher residuary. When this happens a consanguine sister gets a share with the
consanguine brother as a residuary and the daughter gets half share as a sharer.19
Other Residuaries
20
Sir. 18-21 and 23-26. Some of the important points involved in the Table of Residuaries are explained in
the notes appended to the illustrations.
(1) Classification of Residuaries
All residuaries are related to the deceased through a male. The uterine brother and sister are related to the
deceased through a female, that is, the mother, and they do not therefore find a place in the List of
Residuaries. The Sirajiyyah divides residuaries into three classes, viz., (1) residuaries in their own right:
these are all males comprised in the List of Residuaries; (2) residuaries in the right of another: these are
the four female residuaries, namely, the daughter as a residuary in the right of the son, the son’s daughter
h.l.s. as a residuary in the right of the son’s son h.l.s., the full sister in the right of the full brother, and the
consanguine sister in the right of the consanguine brother; and (3) residuaries with others, namely, the full
sister and consanguine sister, when they inherit as residuaries with daughters and sons’ daughter h.l.s. But
if regard is to be had to the order of succession, residuaries may be divided into four classes, the first class
comprising descendants of the deceased, the second class his ascendants, third the descendants of the
deceased’s father, and the fourth class is the descendants of the deceased’s true grandfather h.h.s. This
classification has been adopted in the Table of Residuaries. The division of Distant Kindred into four
Page 6 of 10
§ 65. Residuaries
classes proceeds upon the same basis.
(2) Residuaries that are primarily Sharers
It will be noticed on referring to the Table of Sharers and Residuaries that there are six sharers who inherit
under certain circumstances as residuaries. These are the father and true grandfather h.h.s., the daughter
and son’s daughter h.l.s., and the full sister and consanguine sister. Of these, only the father and true
grandfather inherit in certain events both as sharers and residuaries (see ill. (p) above, and the note
thereto). In fact they are the only relations who can inherit at the same time in a double capacity. The
other four, who are all females, inherit either as sharers or residuaries. The circumstances under which
they inherit as sharers are set out in the Table of Sharers. They succeed as residuaries and can succeed in
the capacity alone, when they are combined with male relations of a parallel grade. Thus the daughter
inherits as a sharer when there is no son. But when there is a son, she inherits as a residuary, and can
inherit in that capacity alone; not that when there is a son she is excluded from inheritance, but that in that
event she succeeds as a residuary, the presence of the son merely altering the character of her heirship.
Similarly, the son’s daughter h.l.s. inherits as a residuary when there is an equal son’s son. And in like
manner, the full sister and consanguine sister succeed as residuaries when they co-exist with the full
brother and consanguine brother respectively. The curious reader may ask why it is that the said four
female relations are precluded from inheriting as sharers when they exist with males of parallel grade?
The answer appears to be this, that if they were allowed to inherit as sharers under those circumstances, it
might be that no residue would remain for the corresponding males (all of whom are residuaries only),
that is to say, though the females would have a share of the inheritance, the corresponding males, though
of an equal grade, might have no share of the inheritance at all. To take an example: A dies leaving a
husband, a father, a mother, a daughter, and a son. The husband will take one-fourth, the father one-sixth
and the mother one-sixth. If the daughter were allowed to inherit as a sharer, her share would be half, and
the total of the shares would then be thirteen twelve, so that no residue would remain for the son. It is, it
seems, to maintain a residue for the males that the said females are precluded from inheriting as sharers
when they co-exist with corresponding male relations.
The principle which regulates the successions of full and consanguine sisters as residuaries which
daughters and son’s daughter h.l.s. is explained in the notes appended to ill. (r).
(3) Female residuaries
There are two more points to be noted in connection with female residuaries, which are stated below.
(1) The female residuaries are four in number of whom two are descendants of the deceased, namely, the
daughter and son’s daughter h.l.s., and the other two are descendants of the deceased’s father, namely, the
full sister and consanguine sister. No other female can inherit as a residuary.
(2) All the four females inherit as residuaries with corresponding males of a parallel grade. But none of
these except the son’s daughter h.l.s. can succeed as a residuary with the male lower in degree than
herself. Thus the daughter cannot succeed as a residuary with the son’s son, nor the sister with the
brother’s son; but the son’s daughter may inherit as a residuary not only with the son’s son but with the
son’s son’s son or other lower son’s son. (see ill. (m) and the note thereto).
(4) Principles of succession among Sharers and Residuaries
It will be seen from the Table of Sharers and Residuaries that certain relations entirely exclude others
Page 7 of 10
§ 65. Residuaries
from inheritance. This proceeds upon the following principles laid down in the Sirajiyyah in the part
headed “Of Exclusion”:—
(1) “Whoever is related to the deceased through any person shall not inherit while that person is living”
(Sir. 27). Thus the father excludes brothers and sisters. And since uterine brothers and sisters are related to
the deceased through the mother, it must follow that they should be excluded by the mother. A reference,
however, to the Table of Shares will show that these relations are not excluded by the mother. The reason
is that the mother, when she stands alone, is not entitled to the whole inheritance in one and the same
capacity as the father would be if he stood alone, but partly as a sharer and partly by “Return” (Sir. 27;
Sharifiyyah 49). Thus if the father be the sole ‘surviving heir he will succeed to the whole inheritance as a
residuary. But if the mother be the sole heir she will take one-third as sharer, and the remaining two-third
by Return (see §53 supra). For this reason the mother does not exclude the uterine brother and sister from
inheriting with her.
(2) “The nearest of blood must take” (Sir. 27), that is, the nearer in degree exclude the more remote. The
exclusion of the true grandfather by the father, of the true grandmother by the mother, of the son’s son by
the son, etc., rests upon this principle. These cases may also be referred to the first principle set out above.
It will have been seen that the daughter, though she is nearer in degree, does not exclude the brother’s son
or his son. Thus, if the surviving relations be a daughter and a brother’s son, the daughter takes half, and
the brother’s son takes the residue. The reason is that the daughter in this case inherits as a sharer, and the
brother’s son as a residuary, and the principle laid down above applies only as between relations
belonging to the same class of heirs. The above principle may, therefore, be read thus: “Within the limits
of each class of heirs, the nearer in degree excludes the more remote.”
Again, it will have been seen that the father, though nearer in degree, does not exclude the mother’s
mother or her mother; nor does the mother exclude the father’s father or his father. The reason is that the
above principle is to be read with further limitations, which we shall proceed to enumerate. These
limitations are nowhere stated in the Sirajiyyah or in any other work of authority, but they appear to have
been tacitly recognized in the rules governing succession among Sharers and Residuaries.
(3) After stating the two principles mentioned above, the Sirajiyyah (p 28) goes on to say that “a person
excluded may, as all the learned agree, exclude others.” See ills., (e), and (q) to §50 above, and the note to
ill.(e).
There are five heirs that are always entitled to some share of the inheritance, and they are in no case liable
to exclusion. These are (1) the child, i.e., son or daughter, (2) father, mother, (4) husband, and (5) wife
(Sir. 27). These are the most favoured heirs, and we shall call them, for brevity’s sake, Primary Heirs.
Next to these, there are three, namely, child of a son, h.l.s., (2) true grandfather h.h.s. and (3) true
grandmother h.h.s. These three are the Substitutes of the corresponding primary heirs. The husband or
wife can have no substitute. The following two lines indicate at a glance the primary heirs and their
substitutes:—
Primary heirs Child Father Mother
Substitutes Child of a son h.l.s. Tr. G.F. Tr. G.M.
The right of succession of the substitutes is governed by the following rules:—
Page 8 of 10
§ 65. Residuaries
(1) No substitute is entitled to succeed so long as there is the corresponding primary heir. To this there is
an exception, and that is when there is no son, but a daughter and a son’s daughter in which case the
daughter takes half, and the son’s daughter (though a substitute) takes one-sixth. (see Table of Sharers,
Chart 1, No. 8)
(2) The child of a son h.l.s. is always entitled to succeed, when there is no child.
(3) The Tr. G.F. is always entitled to succeed, when there is no father.
(4) The mother’s mother is always entitled to succeed, when there is no mother. The father’s mother is
always entitled to succeed, if there be no mother and no father.
(5) All relations who are excluded by primary heirs are also excluded by their substitutes. Thus, full and
consanguine sisters and uterine brothers and sisters are excluded by the child and the father. They are also
excluded therefore by the child of son h.l.s. and by the true grandfather.21
In Newanness v Shaikh Mohamad,22 the shares and extent were in controversy before the Supreme Court.
The genealogy table which was before the Court was not disputed. It showed that Haji Ishan died in 1995
leaving behind his widow Samudanusa (Plaintiff No. 1), who also died pending suit in 1966, his two
daughters, (plaintiff No. 2) Bibi Mewannesa and Bibi Mahujanunusa (Defendant No. 5); and three sons
Jabar Ali, Isabul Ali and Sabul Hasan. Jabar left behind a son and a daughter, (defendant No. 1) and
(defendant No. 2) respectively. Isabul Ali left behind him a daughter (defendant No. 3) who was married
to defendant No. 1. Sabul Hasan predeceased Isabul Ali, leaving behind him (defendant No. 4), a son and
Liaquat, also a son, who too died before the death of Isabul Ali. The trial court granted preliminary decree
which was affirmed in appeal. The High Court found that the property purchased by Haji Ishan Ali in the
name of his son Sabul Hasan belong to the latter alone. Since Sabul Hasan had predeceased Isabul Ali, the
question arose whether Haji Ishan Ali was a sharer in the estate of Sabul Hasan.
With the help to this book, the Court observed that a father gets one-sixth share, where there is a child or
children of a son, and where there is no child or children of a son, the father inherits as residuary. Since
Sabul Hasan left behind a son, Haji Ishan got one-sixth share. Out of this one-sixth share got from the
estate of Sabul Hasan his widow and the daughter would get equal respective share under law, which
would be determined by the trial court.
The next question was whether plaintiff No. 2 (two daughters) is entitled to a share in the estate of Bibi
Mahujanunusa, defendant No. 5 who died pending suit. The rule mentioned in this book states that if there
are no sharers or if there are sharers but there is residue left after satisfying their claim, the residuaries also
inherit in the order set forth in the Chart 2 of this book. Defendant No. 5 left behind two daughters and as
per the shares two daughters are entitled to two-third share i.e. one-third share each. Thus, one-third
remains a residue. Table dealing with Residuary given under §65 indicates that where descendants like
son, son’s son, and ascendants like father and grandfather are not available, the descendants of the father
takes in the order mentioned therein. The first, if full brother, then sister; in default, a daughter or son’s
daughter or daughter’s son. In this case, since only two daughters were left behind by defendant No. 5 the
full sister namely plaintiff No. 2 takes the entire residue, which is one-third share.
The next issue was that since defendant No.1 died in March 1990, steps were not taken to bring the legal
representatives on record until 27th Jan, 1995 despite notice given to the appellant by the letter dated 15th
Nov, 1990 and no proper explanation has been given for the inordinate delay. Therefore, appeal as a
Page 9 of 10
§ 65. Residuaries
whole should be dismissed as having been abated. The Supreme Court held that there is no force in the
contention. Since the third defendant is already on record representing all heirs of the first defendant
widow, the question of abatement does not arise. Even otherwise, the Court finds that substitution should
be allowed since no injustice would be done in bringing the legal representatives on record.
(5) Residue
The son, being a residuary, is entitled to the residue left after satisfying the claims of sharers. At the same
time it must have been seen that a son is always entitled to some share of the inheritance. To enable the
son to participate in the inheritance in every case, it is necessary that some residue must always be left
when the son is one of the surviving heirs, and this, in fact, is always so; for the shares are so arranged and
the rules of succession are so framed that when the son is one of the heirs some residue invariably
remains. And since in the absence of the father the true grandfather h.h.s. is entitled to some participation
in the inheritance, it will be found that in every case where he is one of the surviving heirs some residue is
always left. No case of “increase” can therefore take place when these residuaries are amongst the
surviving heirs.
8 IV : 7.
9 IV : 33.
10 IV : 11.
11 IV : 176.
12 See, Mohammad Mustafa Ali Khan, Islamic Law of Inheritance, Ist Edn.
13 Sahih-al-Bukhari, vol 8, Translated by M.M. Khan No. 724.
14 Sunan Abu Daud, vol 2, Tr, No. 2890.
15 Ibid, Tr, No. 2890.
16 Abdul Karim v Mst. Amat-ul-Habib, (1922) 3 Lah. 397: 70 IC 205 : AIR 1923 Lah 121.
17 Jaswant Singh v State of UP, 1978 All WC 577 : 1978 (4) All LR 787, referred to; Hasan Imdad v Additional Civil Judge,
Azamgarh, 1979 All WC 201 [M.P. Mehrotra J] : 1979 (5) All LR 188.
18 Meherjan v Shajadi, (1899) 24 Bom. 112.
19 Smt. Kulsumunnissa v Smt. Ahmadi Begum, AIR 1972 All 219.
20 Mst. Ghulam v Nur Hasan, (1922) 3 Lah. 278 : 69 IC 1000 : AIR 1922 Lah 406.
21 It may here be stated that though, according to the opinion of Abu Hanifa the true grandfather excludes brothers and sisters whether
full or consanguine, he does not exclude them according to the view of Abu Yusuf and Muhammad, but is put to the election as
between certain shares (Sir. 40-42). But the latter view is not generally adopted, and it is unnecessary to set it out here.
22 Newanness v Shaikh Mohamad, AIR 1996 SC 702 [LNIND 1995 SC 265]: 1995 SCC Suppl. (2) 529.
End of Document
Page 10 of 10
§ 66. Return (Radd)
Mulla
VII HANAFI LAW OF INHERITANCE > C.—RESIDUARIES
C.—RESIDUARIES
If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts
to the Sharers in proportion to their shares. This right of reverter is technically called “Return” or Radd.
Exception.—Neither the husband nor the wife is entitled to the Return so long as there is any other heir,
whether he be a Sharer or a Distant Kinsman. But if there be no other heir, the residue will go to the
husband or the wife, as the case may be, by Return.
Illustrations
A Mahomedan dies leaving a widow as his sole heir. The widow will take one-fourth as sharer, and the
remaining three-fourth by Return. The surplus three-fourth does not escheat to the Crown: Mahomed
Arshad v Sajida Banoo;23 Bafatun v Bjilaiti Khanum;24 Mir Ilsub v Isab.25
Note.—The husband is not entitled to the Return, as there is another sharer, the mother. The surplus one-
sixth will therefore go to the mother by Return.
Note.— In this and in ills. (g) to (k) it will be observed that neither the husband nor the wife is among the
surviving heirs. The rule in such a case is to reduce the fractional shares to a common denominator, and to
decrease the denominator of those shares so as to make it equal to the sum of the numerators. Thus in the
present illustration, the original shares, when reduced to a common denominator, are one-sixth and three
sixth. The total of the numerators is 1+3=4, and the ultimate shares will therefore be one-fourth and three-
fourth respectively.
Note:—In this and in ills. (m) to (r), it will be observed that either the husband or the wife is one of the
surviving heirs. Since neither the husband nor the wife is entitled to the Return when there are other
sharers, his or her share will remain the same, and the shares of the others will be increased by reducing
them to a common denominator, and then decreasing the denominator of the original fractional share so as
to make it equal to the sum of the numerators, and multiplying the new fractional shares thus obtained by
the residue after deducting the husband’s or wife’s share. Thus in the present illustration the shares of the
mother and daughter, when reduced to a common denominator, are one-sixth and three sixth respectively.
The total of the numerators is 1+3=4, and the new fractional shares will thus be one-fourth, and three-
fourth respectively. The residue after deducting the husband’s share is three-fourth, and the ultimate
shares of the mother and daughter will therefore be one-fourth of 3/4=3/16 and 3/4 of 3/4=9/16
respectively.
Note:— The daughter’s son belongs to the class of distant kindred. The husband is not therefore entitled to
the surplus by Return and the same will go to the daughter’s son as a distant kinsman.
Note.—The brother’s daughter belongs to the class of distant kindred. The surplus will therefore go to her,
as the wife is not entitled to the Return.26
Sir. 37-40.
Similarly, a case came before the Gauhati High Court where on the death of the father, his heirs, two
sisters partitioned the land. One of them “A” sold away her share (half) in the land to her sister “B”. Later
“A” died leaving behind her son’s as her sole heir. Later “B” also died without any issue leaving behind
her husband and her sister’s son.
The Court held that the husband will get only one half share of the land belonging to his wife “B” and the
other half will devolve on the plaintiff, sister’s son of the deceased who was a distant kindred. Here,
husband is the only “sharer” and so he will get ½ of the share in the property as a share. Since there is no
residuary so the residue will not revert to the husband but it will go to the sister’s son as a distant
Page 2 of 4
kindred.27
(1) Residuaries for special cause
A residuary for special cause is a person who inherits from a freed man by reason of the manumission of
the latter.28 According to Mahomedan law proper, if a manumitted slave dies without leaving any
residuary heir by religion, the manumitter is entitled to succeed to the residue in preference to the right of
the sharers to take the residue by Return (Sir. 25-26). But residuaries for special cause have no place in
Mahomedan law as administered by the Courts of India since the abolition of slavery in 1843.
(2) Husband and wife
The rule of law as stated in the exception as regards the right of the husband and wife to Return is
different from that set out in the Sirajiyyah. According to the latter authority, neither the husband nor the
wife is entitled to the Return in any case, not even if there be no other heir, and the surplus goes to the
Public Treasury (Sir. 37). “But although that was the original rule, an equitable practice has prevailed in
modern times of returning to the husband or to the wife in default of other sharers by blood and distant
kindred” and this practice has been adopted by our Courts. (see the cases cited in ill. (a) above)
Husband or wife can inherit as sharers and also as distant kindred. But “return” is not possible as sharers
in their case. They are, however, not excluded from the “return” in their other capacity as distant kindred.
In this case the husband inherited his share as a sharer and the residue in his capacity as a distant kindred
byway of “return”. Baillie’s Digest of Mohammedan Law, p 287, Babu Ram Verma’s Mahommedan Law,
Tyabji’s Muhammadan Law, p 892 referred to.
A person capable of inheriting in two capacities is entitled to inherit in both capacities.29
When a Hanafi Mahomedan dies leaving a husband or wife and there are no residuaries the husband or the
wife, as the case may be take their full share and the residue is divided among distant kindred. There is no
“return” for them. (Para 66 of Mulla’s Mahomedan Law approved).
If there are no other heirs (including distant kindred) the husband or the widow, as the case may be takes
the whole estate and the residue does not go to the bait-ul-mal (state treasury).30
(3) “Return” distinguished from “Increase”
Return is the converse of Increase. The case of Return takes place when the total of the shares is less than
unity; the case of Increase, when the total is greater than unity. In the former case the shares undergo a
rateable increase; in the latter a rateable decrease.
(4) Father and true grandfather
When there is only one sharer, he succeeds to the whole inheritance, to his legal share as sharer, and to the
surplus by Return. When the father is the sole surviving heir, he succeeds to the whole inheritance as a
residuary, for he cannot inherit as a sharer when there is no child or child of a son h.l.s. (see Table of
Sharers, Chart 1, No. l). The same remarks apply to the case of the true grandfather when he is the sole
surviving heir.
(5) Father and Daughter
Page 3 of 4
If the father dies leaving behind only daughter and no other heirs, the daughter will take her Quranic share
and the residue will also revert back to her. In the instant case, an appeal was filed before the Madhya
Pradesh High Court under section. 384 of the Indian Succession Act, 1925 against the order where
certificate was issued to the respondent daughter for the debts and securities left by deceased. The Court
held that the daughter was entitled to her share (half) as a sharer, but as there was no residuary so the
residue would also revert back to her. Thus under the circumstances, the grant of succession certificate to
the respondent was not illegal.31
23 Mahomed Arshad v Sajida Banoo, (1878) 3 Cal. 702 : (1878) ILR 3 Cal 703.
24 Bafatun v Bjilaiti Khanum, (1903) 30 Cal. 683.
25 Mir Ilsub v Isab, (1920) 20 Bom LR 942 : 58 IC 48.
26 See Koonari Bibi v Dalim Bibi, ILR (1884) Cal. 14.
27 Abdul Matin v Abdul Aziz, AIR 1990 Gau(AIB) 70.
28 Rumsey’s Moohummudan Law of Inheritance.
29 Mazirannessa v Khondkar Golam Kibria, AIR 1970 Cal 387 [LNIND 1969 CAL 62]: 74 Cal WN 270.
30 Mst. Soobhanee v Bhetun Sel. Rep. S.D.A. 346; Mahomed Arsad Choudhury v Sajida Banoo, ILR (1878) 3 Cal 702 : (1878) ILR 3
Cal 703 referred to (see para 67); Ali Sahib v Hajra Begum, AIR 1968 Kant. 351 [LNIND 1968 KANT 6]: (1968) 2 Mys LJ 14
[LNIND 1968 KANT 6].
31 Rukmanibai v Bismillabai, AIR 1993 MP 45 [LNIND 1992 MP 82].
End of Document
Page 4 of 4
§ 67. Distant Kindred
Mulla
VII HANAFI LAW OF INHERITANCE > D.—DISTANT KINDRED
D.—DISTANT KINDRED
§ 67. Distant Kindred
(1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred.
(2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries,
the husband or wife will take his or her full share, and the remainder of the estate will be divided among
Distant Kindred.
Sir. 13. It will have been seen from the preceding section that a husband or wife, though a sharer, does not
exclude distant kindred from inheritance when he or she is the sole surviving heir. (see §66 and
illustrations, (s) and (t) to that section)
In proceedings for substitution of legal representatives, a residuary has preference over distant kindred.32
32 St Akbar Ali v Smt. Lokman, (1972) 2 C.W.R. 1969 : AIR 1973 Ori. 129.
End of Document
§ 68. Four Classes
Mulla
§ 68. Four Classes
(1) Distant Kindred are divided into four classes, namely, (1) descendants of the deceased other than
sharers and residuaries; (2) ascendants of the deceased other than sharers and residuaries; (3) descendants
of parents other than sharers and residuaries; descendants of ascendants how highsoever other than
residuaries. The descendants of the deceased succeed in priority to the ascendants, the ascendants of the
deceased in priority to the descendants of parents, and the descendants of parents in preference to the
descendants of ascendants.
(2) The following is a list of Distant Kindred comprised in each of the four classes:—
I. Descendants of the deceased:—
1. Daughter’s children and their descendants.

2. Children of son’s daughters h.l.s. and their descendants.
II. Ascendants of the deceased:—
1. False grandfathers h.h.s.

2. False grandmothers h.h.s.
III. Descendants of parents:—
1. Full brothers’ daughters and their descendants.

2. Con. brothers’ daughters and their descendants.
3. Uterine brothers’ children and their descendants.
4. Daughters of full brothers’ sons h.l.s. and their descendants.
5. Daughters of con. brothers’ sons h.l.s. and their descendants.
§ 68. Four Classes
6. Sisters’ (f., c, or ut.) children and their descendants.
IV. Descendants of immediate grandparents (true or false):—
1. Full pat. uncles’ daughters and their descendants.

2. Con. pat. uncles’ daughters and their descendants.
3. Uterine pat, uncles and their children and their descendants.
4. Daughters of full pat. uncles’ son h.l.s and their descendants.
5. Daughters of con. pat. uncles’ son h.l.s and their descendants.
6. Pat. aunts (f., c, or ut.) and their children and their descendants.
7. Mat. uncles and aunts and their children and their descendants.
and
descendants of remoter ancestors h.h.s. (true or false).
(3) The order of precedence among Distant Kindred in each class and the rules by which such order is
determined are given in §69 to 79. They are not given here in order of succession.
Sir. 44-46. The Sirajiyyah does not enumerate all relations belonging to the class of Distant Kindred, but
mentions only some of them. Hence, it was thought at one time that “distant kindred” were restricted to
the specific relations mentioned in the Sirajiyyah. But this view has long since been rejected as erroneous,
and it is now firmly established that all relations who are neither sharers nor residuaries are distant
kindred.33
Class I of Distant Kindred
(1) Difference between doctrines of Imam Muhammad and Abu Yusuf
When we come to Distant Kindred, we find that there are two sets of rules for each class, one for
determining the order of succession, and the other for determining the shares. In each class we have first
to determine which of the relations are entitled to succeed; this is done by applying certain rules which are
called Rules of Exclusion. After so doing, we have to assign shares to these relations; this is done with the
help of certain other rules.
It is when we come to the class of Distant Kindred that we find a remarkable difference of opinion
between Abu Yusuf and Imam Muhammad, the two great disciples of Abu Hanifa. The doctrine of Abu
Yusuf is very simple, but unhappily it has not been accepted by the Hanafi Sunnis in India. It is the
doctrine of Imam Muhammad that is followed in India and this doctrine is much too complicated.34
Moreover, the doctrine of Imam Muhammad is followed by the author of the Sirajiyyah, and apparently
by the author of the Sharifiyyah.35 The Fatawa Alamgiri does not express any preference either way.36 The
High Court of Calcutta has also expressed its preference for the opinion of Imam Muhammad.37 Since the
opinion of Abu Yusuf is not followed in India, we have confined ourselves in the following sections to the
doctrine of Imam Muhammad, and the difference between the two systems is pointed out in the notes. It
must not, however, be supposed that the two systems differ in all respects and at all stages. So long as the
intermediate ancestors do not differ in their sexes or blood, there is no difference at all between the two
systems. The difference comes in only in those cases where the intermediate ancestors are—
Page 2 of 3
§ 68. Four Classes
(i) of different sexes as where some are males and others in the same generation are females; or
where they are
(ii) of different blood, as where some are of whole blood and others in the same generation are of half
blood.
Abu Yusuf declines to take any notice of the sex or blood of intermediate ancestors or, as they are called
“roots.” According to him, regard should be had to the sex and blood of the actual claimants, or, as they
are called, “branches.” The result is that according to his doctrine, the property is to be divided in the
same manner as is done among son’s sons and son’s daughter as residuaries, that is to say, per capita,
each male claimant taking a share double that of each female claimant.
According to Imam Muhammad, regard should be had not only to the sex and blood of the actual
claimants, but also of the intermediate ancestors.
Where the intermediate ancestors differ in their sexes, the two systems differ as to the shares to be allotted
to the claimants. This difference in true shares manifests itself when claimants are descendants where they
be descendants of the deceased as in class I or of brothers and sisters as in class III, or of uncles and aunts
as in class IV.
Where the intermediate ancestors differ in blood, the two systems differ as to the order of succession.
This difference in the order of succession manifests itself in class III when the surviving relations happen
to be the descendants some of full or consanguine brothers or sisters, and some of uterine brothers or
sisters. It cannot manifest itself in class I and class II, for there can be no difference of blood among the
intermediate ancestors in those classes. Nor can it manifest itself in class IV, where the claimants are the
descendants of uncles and aunts.
Before we proceed further, we may observe that among Residuaries there cannot be any difference of
blood or sex among intermediate ancestors as may happen among Distant Kindred.
33 Abdul Serang v Putee Bibi, (1902) 29 Cal. 738 : (1901) ILR 29 Cal 739.
34 Macnaghten, p 9 (foot-note); Baillie’s Moohummudan Law of Inheritance, p 92; Rumsey’s Moohummadun Law of Inheritance, p
65; Ameer Ali, Vol II, (5th Edn), p 59.
35 Sir 49-50; Shar. 95.
36 Baillie, 716, 717.
37 Akbar Ali v Adar Bibi, (1931) 58 Cal. 366: 130 IC 873 : AIR 1931 Cal 155.
End of Document
Page 3 of 3
§ 69. Rules of exclusion
Mulla
The first class of Distant Kindred comprises such of the descendants of the deceased as are neither Sharers
nor Residuaries. The order of succession in this class is to be determined by applying the following two
rules in order [Sir. 47]:—
Rule (1).—The nearer in degree excludes the more remote.
The fundamental rule of Mohammadan Law regarding succession is that the nearer in degree excludes the more remote. The distribution
between the paternal side and the maternal side in the ratio of two-third and one-third to each side comes into the picture only when the
heirs are ascertained; and such heirs happen to fall on both the sides. But in the task of ascertaining the heirs the fundamental rule is that
the nearer in degree excludes the more remote. This makes it clear that children of the uncles and aunts and their grand-children cannot
succeed together.38
Sir. 7. Thus a daughter’s son or a daughter’s daughter is preferred to a son’s daughter’s daughter. The daughter’s son and the daughter’s
daughter are the nearest distant kindred, and they exclude all other distant kindred.
Rule (2).—Among claimants in the same degree of relationship, the children of Sharers and Residuaries
are preferred to those of Distant Kindred.
Sir. 47. Thus a son’s daughter’s son, being a child of a sharer (son’s daughter) succeeds in preference to a daughter’s daughter’s son,
who is the child of a distant kinswoman (daughter’s daughter).
38 MP Mehrotra, J Mohd. Haseeb v Smt Mehrunnissa, 1978 All LJ 558.
End of Document
§ 70. Order of succession
Mulla
The rules set forth in section 69 lead to the following order of succession among Distant Kindred of the
first class:—
(1) Daughter’s children.

(2) Son’s daughters’ children.
(3) Daughters’ grandchildren.
(4) Sons’ sons’ daughters’ children.
(5) Daughters’ great-grandchildren and sons’ daughters’ grandchildren.
(6) Other descendants of the deceased in like order.
Of the above groups each in turn must be exhausted before any member of the next group can succeed.
Note that No. (1) belongs to the second generation, Nos. (2) and (3) to the third generation, and Nos (4)
and (5) to the fourth generation. No. (2) excludes No. 3 by reason of section 69, rule (2). For the same
reason No. (4) excludes No. (5).
End of Document
§ 71. Allotment of Shares
Mulla
After ascertaining which of the descendants of the deceased are entitled to succeed, the next step is to
distribute the estate among them. The distribution in this class is governed by the following rules:—
Rule (1).—If the intermediate ancestors do not differ in their sexes, the estate is to be divided among the
claimants per capita according to the rule of double share to the male [Sir. 47].
Illustrations
Note.—To divide the estate per stirpes is to assign half to the two sons, and half to the daughter, that being
the portion of their respective parents, A and B.
Note.—To divide the estate per stirpes is to assign half to the two sons and half to the two daughters.
(1) Doctrine of Abu Yusuf
The distribution will be the same according to Abu Yusuf also. In each of the above cases it will be seen
that the sexes of the intermediate ancestors are the same. But if the claimants be a daughter’s daughter’s
son and a daughter’s son’s daughter, the case is one in which the intermediate ancestors difer in their
sexes. In such a case also, according to Abu Yusuf, the rule to be followed is rule (1), so that the former,
being a male, will take two-third and the latter, being a female, will take one-third; the reason being that
according to Abu Yusuf regard is to be had solely to the sexes of the claimants (see “Difference between
doctrines of Imam Muhammad and Abu Yusuf”, p 86). According to Imam Muhammad, regard should be
had also to the sexes of the intermediate ancestors, and the distribution is to be made according to rule (2)
below, which, it will be seen, is a distribution per stirpes, though not entirely such as in the Shia law.
Rule (2).—If the intermediate ancestors differ in their sexes, the estate is to be distributed according to the
following rules [Sir. 48-50]:’
(a) The simplest case is where there are only two claimants, the one claiming through one line of
ancestors, and the other claiming through another line. In such a case, the rule is to stop at the first
line of descent in which the sexes of the intermediate ancestors differ, and to assign to the male
ancestor a portion double that of the female ancestor. The share of a male ancestor will descend to
the claimant who claims through him, and the share of the female ancestor will descend to the
claimant who claims through her, irrespective of the sexes of the claimants.
Illustrations
A Mahomedan dies leaving a daughter’s son’s daughter and daughter’s daughter’s son, as shown in the
following table:—
In this case, the ancestors first differ in their sexes in the second line of descent, and it is at this point that
the rule of a double portion to the male is to be applied. This is done by assigning two-third to the
daughter’s son and one-third to the daughter’s daughter. The two-third of the daughter’s son will go to his
daughter, and the one-third of the daughter’s daughter will go to her son. Thus we have
According to Abu Yusuf, the shares will be one-third and two-third respectively.
Note.—Where the deceased leaves descendants in the fourth or remoter generation the rule of the double
share to the male is to be applied in every successive line in which the intermediate ancestors differ in
their sexes. (see ill. (b) to sub-rule (c) below)
(b) The next case is where there are three or more claimants, each claiming through a different line of
ancestors. Here again, the rule is to stop at the first line in which the sexes of the intermediate
ancestors differ, and to assign to each male ancestor a portion double that of each female ancestor.
But in this case the individual share of each ancestor does not descend to his or her descendants as
in the preceding case, but the collective share of all the male ancestors is to be divided among all
the descendants claiming through them, and the collective share of all the female ancestors is to be
divided among their descendants, according to the rule, as between claimants in the same group,
of a double portion to the male.
Illustrations
A Mahomedan dies leaving a daughter’s son’s daughter, a daughter’s daughter’s son, and a daughter’s
daughter’s daughter, as shown in the following table:—
Page 2 of 11
In this case, the ancestors differ in their sex in the second line of descent. In that line we have one male
and two females. The rule of the double share to the male is to be applied, first, in this line of descent, so
that what we have is:
The daughter’s son stands alone, and therefore his share descends to his daughter. The two female
ancestors, namely the daughter’s daughters, from a group, and their collective share is half, which will be
divided between their descendants, that is, the daughter’s daughter’s son and daughter’s daughter’s
daughter in the proportion again of two to one, the former taking 2/3 × 1/2 = 1/3 and the latter 1/3 × 1/2 =
1/6.
Thus we have:
daughter’s son’s .. .. .. .. .. .. 1/2=3/6

daughter
daughter’s .. .. .. .. .. .. 1/3=2/6
daughter’s son
daughter’s .. .. .. .. .. .. 1/6=1/6
daughter’s daughter
According to Abu Yusuf, the shares will be one-fourth, half and one-fourth respectively.
A Mahomedan dies leaving a daughter’s daughter’s son, a daughter’s son’s son and a daughter’s son’s
daughter, as shown in the following table:—
[In the preceding illustration we had one male and two females in the first line in which the sexes differed.
In the present case, we have one female and two males in that line.]
First ascertain what is the line of descent in which the sexes first differ. That line is the second line of
descent.
Next, assume the relations in that line to be so many children of the deceased and determine their shares
upon that footing. The shares therefore will be, daughter’s daughter one-fifth, and each daughter’s so n
two fifth, the collective share of the two daughters’ sons being four fifth. Assign the one-fifth of
daughter’s daughter to her son.
Lastly, divide the four fifth of the two male ancestors between their descendants as if they were children
of one ancestor, assigning a double portion to the male descendant. Thus, the daughter’s son’s son takes
2/3 × 4/5 = 8/15, and the daughter’s son’s daughter 1/3 × 4/5 = 4/15. Thus we have:
Page 3 of 11
(c) A Mahomedan dies leaving a daughter’s son’s son, a daughter’s son’s daughter, a daughter’s
daughter’s son, and a daughter’s daughter’s daughter, as shown in the following table:—
Here the ancestors first differ in their sexes in the second line, and in that line we have two males and two
females. The collective share of the two males is four sixth, and that of the two females is two sixth. The
four sixth of the daughters’ sons will be divided between the daughter’s son’s son and the daughter’s
son’s daughter, the former taking 2/3 × 4/6 = 8/18, and the latter 1/3 × 4/6 = 4/18. The two sixth of the
daughter’s daughters will be divided between the daughter’s daughter’s son and the daughter’s daughter’s
daughter, the former taking 2/3 × 2/6 = 4/18, and the latter 1/3 × 2/6 = 2/18. Thus we have:
Page 4 of 11
daughter’s son’s .. .. .. .. .. .. .. 8/18

son
daughter’s son’s .. .. .. .. .. .. 4/18

daughter
daughter’s .. .. .. .. .. .. 4/18
daughter’s son
daughter’s .. .. .. .. .. 2/18
daughter’s
daughter
Page 5 of 11
According to Abu Yusuf the shares will be two sixth, one-sixth, two sixth and one-sixth respectively.
Note.—When a person dies leaving descendants in the fourth or remoter generation, “the course indicated
in the [above rule] as to the first line in which the sexes differ is to be followed equally in any lower line;
but the descendants of any individual or group, once separated must be kept separate throughout, in other
words they must not be united in a group with those of any other individual or group.”39 (see illustration
(b) to sub-rule (c))
(c) The last case is when there are two or more claimants claiming through the same intermediate
ancestor. In such a case, there is this further rule to be applied, namely, to count for each such ancestor, if
male, as many males as there are claimants claiming through him, and, if female, as many females as there
are claimants claiming through her, irrespective of the sexes of the claimants.
Illustrations
(a) A Mahomedan dies leaving fifth great-grandchildren as shown in the diagram on page 98.
Here the ancestors first differ in their sex in the second line, and in that line we have one male and one
female. The daughter’s son will count as two males by reason of his having two descendants among the
claimants, and the daughter’s daughter will count as three females by reason of her having three
descendants. Thus we have:
The four seventh of the daughter’s son will go to his two sons. The three seventh of the daughter’s
daughter will go to her descendants, the son taking 2/4 × 3/7 = 6/28 and each daughter taking 1/4 × 3/7 =
3/28. Thus we have:
Page 6 of 11
daughter’s son’s son .. .. .. .. 4/7=16/28 (each 8/28)
daughter’s daughter’s .. .. .. 6/28

son
daughter’s daughter’s .. .. 6/28 (each 3/28)

daughter
Page 7 of 11
According to Abu Yusuf, the shares will be as follows:—
Page 8 of 11
each daughter’s son’s .. .. .. .. .. 2/8

son
daughter’s daughter’s .. .. .. .. .. 2/8

son
each daughter’s .. .. .. .. 1/8

daughter’s daughter
Page 9 of 11
Note.—When the deceased leaves descendants in the fourth or remoter generation, the process indicated
in the above rule is to be applied as often as there may be occasion to group the sexes. (see the next
illustration)
(b) Note.—The following cases taken from the Sirajiyyah illustrate the combined operation of sub-rules
(a), (b) and (c), when the claimants belong to the fourth generation. (see notes at the end of sub-rule (a)
and sub-rule (b), and the note at the end of ill. (a) above)
A Mahomedan dies leaving five decendants in the fourth generation as shown in the following diagram
[Sir. 49]:—
Here the sexes first differ in the second line. S1 having two descendants among the claimants will count
as two males or four females. D1 having two such descendants will count as two females. D1 having one
such descendant only will count as one female. The estate will therefore be divided into seven parts as
follows:—
S1 being by himself, his share four seventh will pass to his two descendants D4 and D5 in equal moieties,
each taking two seventh.
The collective share three seventh of D1 and D2 will descend to their immediate descendants D3 and S2;
and here D3 having two descendants among the claimants will count as two females, and S2 having one
such descendant only will count as one male, or two females. Hence the collective share three seventh will
be divided into 4 parts as follows:—
D3 = 2/4 × 3/7 = 3/14;
S2 = 2/4 × 3/7 = 3/14.
The share of D3 will pass to her two descendants S3 and S4, each taking three twenty-eight. The share of
S2 will pass to his descendant D6. The ultimate share will therefore be—
D4=8/28; D5=8/28; S3=3/28; S4=3/28; D6=6/28.
According to Abu Yusuf, the shares will be as follows:—
D4=l/7; D5=l/7; S3=2/7; S4=2/7; and D6=l/7.
Class II of Distant Kindred
39 Rumsey’s Moohummudan Law of Inheritance, pp 68-69.
Page 10 of 11
End of Document
Page 11 of 11
Mulla
(1) If there be no distant kindred of the first class, the whole estate will devolve upon the mother’s father
as being the nearest relation among Distant Kindred of the second class (see rule
below).
(2) If there be no mother’s father the estate will devolve upon such of the false ancestors in the third
degree as are connected with the deceased through sharers, namely, the father’s mother’s father and the
mother’s mother’s father, and these two, the former, as belonging to the paternal side, will take two-third,
and the latter, as belonging to the maternal side, will take one-third (see rules (2) and (3) below).
Note that the father’s mother and the mother’s mother are sharers.
(3) If there be none of these, the estate will devolve upon the remaining false ancestors in the third degree,
namely, the mother’s father’s father and the mother’s father’s mother. And as these two belong to the
same (maternal) side, and as the sexes also of the intermediate ancestors are the same, the former, being a
male, will take two-third, and the latter, being a female, will take one-third according to section 71, rule
(1) [Sir. 51-52].
Note that the two ancestors mentioned in sub-section (3), are both related to the deceased through a distant
kinsman, namely, mother’s father.
Rules of succession.—Succession among Distant Kindred of the second class is governed by the
following rules:—
Rule (2).—Among claimants in the same degree, those connected with the deceased through shares are
preferred to those connected through distant kindred.
Rule (3).—If there are claimants on the paternal side as well as claimants on the maternal side, assign two-
third to the paternal side, and one-third to the maternal side. Then divide the portion assigned to the
paternal side among the ancestors of the father, and the portion assigned to the maternal side among the
ancestors of the mother, in each case according to the rules contained in section 71.
It is not clear whether when the sexes of the intermediate ancestors differ, there is the same difference of
opinion between the two disciples as there is in class I. Anyhow, no such difference can arise until
ancestors in the fourth degree are reached.
End of Document
Page 2 of 2
Mulla
VII HANAFI LAW OF INHERITANCE > CLASS III OF DISTANT KINDRED
CLASS III OF DISTANT KINDRED
If there be no Distant Kindred of the first or second class, the estate devolves upon Distant Kindred of the
third class. This class comprises such of the descendants of brothers and sisters as are neither Sharers nor
Residuaries. The order of succession in this class is to be determined by applying the following three rules
in order [Sir. 52-54]:—
Thus the children of brothers and sisters exclude the grandchildren of brothers and sisters. A sister’s son
excludes a brother’s son’s daughter.40
Rule (2).—Among claimants in the same degree of relationship, the children of Residuaries are preferred
to those of Distant Kindred.
Thus a full brother’s son’s daughter, being the child of a Residuary (full brother’s son), is preferred to a
full sister’s daughter’s son who is the child of a distant kinswoman (full sister’s daughter). For the same
reason, a consanguine brother’s son’s daughter is preferred to a full sister’s daughter’s son, though the
former is of half blood and the latter of whole blood.
Rule (3).—Among claimants in the same degree of relationship, and not excluded by reason of rule (2)
above, the descendants of full brothers exclude those of consanguine brothers and sisters.
But the descendants of full sisters do not exclude the descendants of consanguine brothers or sisters, and
the latter take the residue, if there be any, after allotting shares to the descendants of full sisters and of
uterine brothers and sisters.
The descendants of uterine brothers and sisters are not excluded by descendants either of full or
consanguine brothers or sisters, but they inherit with them.
Note particularly that the test of blood laid down in rule (3) is not to be applied until after you have
applied the test laid down in rule (2). Among descendants of uncles and aunts these tests are to be applied
in the reverse order. See notes to §78 under the head “Rules of succession among descendants” [rules (3)
and (4)].
40 Agha Walayat v Mt. Mahbub, AIR 1942 Peshawar 83.
End of Document
Page 2 of 2
Mulla
The above rules lead to the following order of succession among Distant Kindred of the third class:—
(1) Full brother’s daughters, full sisters’ children and children of uterine brothers and sisters.
(2) Full sisters’ children, children of uterine brothers and sisters, consanguine brother’s daughters and
consanguine sisters’ children, the consanguine group taking the residue (if any).
(3) Consanguine brothers’ daughter, consanguine sisters’ children, and children of uterine brothers
and sisters.
(4) Full brothers’ sons’ daughters (children of Residuaries).
(5) Consanguine brothers’ sons’ daughters (children of Residuaries).
(6) Full brothers’ daughters’ children, full sisters’ grandchildren, and grandchildren of uterine
brothers and sisters.
(7) Full sisters’ grandchildren, grandchildren of uterine brothers and sisters, consanguine brothers’
daughters’ children and consanguine sisters’ grandchildren, the consanguine group taking the
residue (if any).
(8) Consanguine brothers’ daughters’ children, consanguine sisters’ grandchildren, and grandchildren
of uterine brothers and sisters.
(9) Remoter descendants of brothers and sisters in like order.
Of the above group each in turn must be exhausted before any member of the next group can succeed.
Among the descendants mentioned above, Nos. (1) to (3) are nephews and nieces, and Nos. to (8) are
grandnephews and grandnieces. Note particularly that a full brother’s son and a consanguine brother’s son
are Residuaries; hence it is that they do not find any place in the above list.

According to Abu Yusuf also, there are three rules of exclusion, of which the first two are the same as
those laid down in the preceding section. The third rule of Abu Yusuf, which also is to be applied after
applying the first two rules, is that descendants of full brothers and sisters exclude those of consanguine
brothers and sisters, and the descendants of consanguine brothers and sisters exclude the descendants of
uterine brothers and sisters. This difference arises from the fact that Abu Yusuf would have regard to the
“blood” of the claimants while Imam Muhammad looks to the “blood” of the Roots. The result is that the
order of succession according to Abu Yusuf is different from that according to Imam Muhammad.
End of Document
Page 2 of 2
§ 75. Allotment of shares
Mulla
After ascertaining which of the descendants of brothers and sisters are entitled to succeed, the next step is
to distribute the estate among them, and this is to be done by applying the following rules in order [Sir.
53-54]:—
Rule (1).—First, divide the estate among the Roots, that is to say, among the brothers and sisters (as if
they were living) and in so doing treat each brother who has two or more claimants descended from him
as so many brothers, and each sister who has two or more claimants descended from her as so many
sisters. If there is a residue left after assigning their shares to the Roots but there are no Residuaries among
the Roots [that is, neither a full nor consanguine brother], apply the doctrine of Return as described in
section 66. The hypothetical claimants being brothers and sisters, no case of increase is possible at-all
[section 64].
The relations constituting Distant Kindred of the third class are descendants of brothers and sisters, full,
consanguine and uterine. The brothers and sisters are therefore the Roots. Of these, uterine brothers and
sisters always inherit as sharers, taking one-sixth, and two or more one-third. Full and consanguine
brothers always inherit as residuaries. Full sisters inherit as sharers, if there are no full brothers, one taking
half, and two or more two-third; but if there are full brothers, full sisters inherit as residuaries with them.
The same remarks apply to consanguine sisters. (see Table of Sharers, Chart 1, Nos. 9 to 12; Table of
Residuaries, Chart 2, Nos. 5-7)
If the claimants be a uterine brother and a full brother, the former takes one-sixth, and the latter the
residue five eight. But if the claimants be two or more descendants of a uterine brother, and two or more
descendants of a full brother, the hypothetical share of the uterine brother will be one-third, that being the
share of two or more uterine brothers, and the hypothetical share of the full brother will be the residue
two-third.
If the claimants be a uterine sister and a full sister, the former will take one-sixth, and the latter half, and
the residuary one-third will go to them by return, the former taking one-fourth and the latter three-fourth.
But if the claimants be five descendants of a uterine sister, and of descendants of a full sister, the
hypothetical share of the uterine sister will be one-third that being the share of two or more uterine sisters,
and that of the full sister will be two-third, that being the share of two or more full sisters (see illustration
(b) to rule (3) below).
If the claimants be a full brother and a full sister, they will inherit as Residuaries, the former taking two-
third, and the latter one-third. But if the claimants be three descendants of a full brother, and four
descendants of a full sister, the full brother will count as three males, that is, six females and the full sister
will count as four females. The property will then be divided into 10 parts, the hypothetical share of the
full brother being six tenth, and that of the full sister four tenth [compare illustration (a) to rule (3) below].
The position of a consanguine brother and a consanguine sister is similar to that of a full brother and a full
sister [compare ill. (e) to rule (3) below].
As to the application of the doctrine of return to the Roots, (see illustration (d) to rule (3) below).
Rule (2).—After determining the hypothetical shares of the Roots, the next step is to assign its shares to
the uterine group. If there be only one claimant in that group, assign one-sixth to him, that being the
hypothetical share of his parent. But if there be two or more claimants in that group, whether descended
from a single uterine brother, or a single uterine sister, or two or more uterine brothers or sisters, assign
one-third to them, that being the hypothetical share of their parent or parents, and divide it equally among
them without distinction of sex.
Rule (3).—Lastly, divide the hypothetical shares of the full and consanguine brothers and sisters among
their respective descendants as among Distant Kindred of the first class (see §71).
According to Abu Yusuf, the estate is to be divided among the claimants per capita according to the rule
of the double share to the male.
Illustrations
(a) A Sunni Mahomedan dies leaving a daughter of a full brother, a son and a daughter of a full sister, a
daughter of a consanguine brother, a son and a daughter of a consanguine sister, a daughter of a uterine
brother, and a son and a daughter of a uterine sister, as shown in the following diagram:—
The children of the consanguine brother and sister are excluded from inheritance as there is a full
brother’s daughter (see §73, rule (3)). The estate has therefore to be divided among the children of the full
and uterine brothers and sisters.
As there are three claimants in the uterine group, the collective share of the uterine brother and sister is
one-third, and this will be divided among their three descendants equally without distinction of sex, each
taking one-ninth.
This leaves a residue of two-third, and this is to be divided in the first instance between the full brother
and the full sister as Residuaries, according to the number of claimants descended from each of them. The
full brother, having only one descendant counts as one male or two females. The full sister, having two
Page 2 of 7
descendants, counts as two females. The residue will therefore be divided into four parts, the full brother
taking 2/4 × 2/3 = 1/3, and the full sister also 2/4 × 1/3 = 1/9.
The full brother’s share one-third will go to his descendant. The full sister’s share one-third will be
divided between her two children according to the rule of the double share to the male as in class I of
Distant Kindred, the son taking 2/3 × 1/3 = 2/9, and the daughter taking 1/3 × 1/3 = 1/9.
Note.—On failure of children of full brother and sister, the residue will be divided in like manner among
the children of consanguine brother and sister.
(According to Abu Yusuf, the whole estate will be divided among the children of the full brother and
sister according to the rule of the double share to the male, so that the full brother’s daughter will take
one-fourth, the full sister’s son half, and her daughter one-fourth. On failure of children of the full brother
and sister, the estate will be divided in like manner among the children of consanguine brother and sister.
And on failure of them, it will be distributed in like manner among the children of the uterine brother and
sister.)
(b) A Sunni Mahomedan dies leaving five children of a uterine sister, and three children of a full sister, as
shown in the following diagram:—
As there are five claimants in the uterine group, the share of the uterine sister is one-third, and this will be
divided among her five children equally without distinction of sex, each taking 1/5 × 1/3 = 1/15.
The full sister, having three descendants, will count as three sisters, and she will take two-third, that being
the share of two or more full sisters (see Table of Sharers, Chart 1, No. 11). This will then be divided
among her three children according to the rule of the double share to the male as among Distant Kindred
of the first class, so that each son will take 2/5 × 2/3 = 4/15, and the daughter will take 1/5 × 2/3 = 2/15.
[According to Abu Yusuf, the whole estate will be divided among the children of the full sister according
to the rule of the double share to the male, so that each son will take two fifth, and the daughter will take
one-fifth].
(c) A Sunni Mahomedan dies leaving a uterine brother’s daughter, a uterine sister’s son, a full sister’s son,
and a consanguine brother’s daughter, as shown in the following diagram:—
Here there is no descendant of a full brother; therefore the consanguine brother’s daughter is not excluded
from inheritance, and she will take what remains after the estate is divided among the other claimants.
As there are two descendants in the uterine group, the collective share of the uterine brother and sister is
one-third, and this will be divided equally between their children without distinction of sex, each taking
one-sixth.
The full sister, having only one descendant, counts as one full sister, and her share therefore is half. This
will descend to her son.
Page 3 of 7
This leaves a residue of one-sixth which will go to the consanguine brother as a Residuary. This will
descend to his daughter.
[According to Abu Yusuf, the whole estate will go to the full sister’s son.]
(d) A Sunni Mahomedan dies leaving 2 widows, 4 children of a full sister, and two daughters of a
consanguine brother. The High Court of Calcutta held that the shares should be determined according to
the system of Imam Muhammad. Following that system, they held that the widows were entitled to one-
fourth, the full sister’s children were entitled to two-third, and that the residue, that is one-twelve,
belonged to the consanguine brother’s daughters.41
(e) A Sunni Mahomedan dies leaving a uterine sister’s daughter, and a son and a daughter of a
consanguine sister, as shown in the following diagram:—
The uterine sister has only one descendant: her share therefore is one-sixth. The consanguine sister,
having two descendants, counts as two consanguine sisters, and her share therefore is two-third [Table of
Sharers, Chart 1, No. 12]. This leaves the residue one-sixth, and since there is no Residuary among the
Roots, the residue will go to the uterine sister and consanguine sister by Return. The hypothetical shares
will therefore be—
Page 4 of 7
uterine sister .. .. .. .. 1/6=1/6 Increased to 1/5
consanguine sister .. .. .. .. 2/3=4/6 ”” 4/5
Page 5 of 7
The uterine sister’s share one-five will pass to her daughter.
The consanguine sister’s share four five will be divided between her son and daughter, the son taking 2/3
× 4/5 = 8/15, and the daughter 1/3 × 4/5 = 4/15.
[According to Abu Yusuf, the whole estate will go to the children of the consanguine sister, the son taking
two-third, and the daughter one-third].
(f) A Sunni Mahomedan dies leaving four grandnephews, S1, S2, S3, and S4 and 3 grandnieces, D1, D2,
and D3, as shown in the following diagram:—
As there are two claimants in the uterine group, the collective share of the uterine brother and sister is
one-third, and this will pass to D1 and S1, each taking one-sixth.
This leaves a residue two-third, and this is to be divided in the first instance between the consanguine
brother and sister as Residuaries according to the number of claimants descended from each of them.
The consanguine brother, having two claimants descended from him, counts as two males or four females.
The consanguine sister, having three claimants descended from her, counts as 3 females. The residue will
therefore be divided into seven parts, the consanguine brother taking 4/7 × 2/3 = 8/21, and the
consanguine sister taking 3/7 × 2/3 = 6/21.
The consanguine brother’s share eight twenty-one will be divided between his two descendants S2 and
D2, S2 being a male taking 2/3 × 8/21 = 16/63, and D2 being a female taking 1/3 × 8/21 = 8/63.
The consanguine sister’s share six twenty-one is to be divided in the first instance between her son and her
daughter. The son, having two claimants descended from him, counts as two males or four females. The
daughter, having only one claimant descended from her, counts as one female. The son will therefore take
4/5 × 6/21 = 8/35, and the daughter will take 1/5 × 6/21 = 2/35.
The son’s share eight thirty-five will be divided between his two children S3 and D3 according to the rule
of the double share to the male, S3 taking 2/3 × 8/35 = 16/105, and D3 taking 1/3 × 8/35 = 8/105.
The daughter’s share two thirty-five will pass to her son S4.
The shares will therefore be—
Dl = l/6; Sl = l/6; S2=16/63; D2=8/63; S3=16/105; D3=8/105; and S4=2/35. The total of these shares is
unity.
[According to Abu Yusuf, the whole property will be divided among the consanguine groups to the entire
exclusion of the uterines so that S2, S3 and S4 will each take two eight or one-fourth, and D2 and D3 will
take one-eight.]
Page 6 of 7
41 Akbar Ali v Adar Bibi, (1931) 58 Cal. 366 : 130 IC 873 : AIR 1931 Cal 155.
End of Document
Page 7 of 7
Mulla
VII HANAFI LAW OF INHERITANCE > CLASS IV OF DISTANT KINDRED
CLASS IV OF DISTANT KINDRED
(1) If there are no Distant Kindred of the first, second, or third class, the estate will devolve upon Distant
Kindred of the fourth class in the order given below [Sir. 56-58].—
(a) Paternal and maternal uncles and aunts of the deceased, other than his full and consanguine
paternal uncles who are Residuaries.
(b) The descendants h.l.s. of all the paternal and maternal uncles and aunts of the deceased, other than
sons h.l.s. of his full and consanguine paternal uncles (they being Residuaries), the nearer
excluding the more remote.
(c) Paternal and maternal uncles and aunts of the parents, other than the full and consanguine paternal
uncles of the father who are Residuaries.
(d) The descendants h.l.s. of all the paternal and maternal uncles and aunts of the parents, other than
sons h.l.s. of the full and consanguine paternal uncles of the father (they being Residuaries), the
nearer excluding the more remote.
(e) Paternal and maternal uncles and aunts of the grand-parents, other than the full and consanguine
paternal uncles of the father’s father who are Residuaries.
(f) The descendants h.l.s. of all the paternal and maternal uncles and aunts of the grandparents, other
than sons h.l.s. of the full and consanguine paternal uncles of the father’s father (they being
Residuaries), the nearer excluding the more remote.
(g) Remoter uncles and aunts and their descendants in like manner and order.
(2) Of the above groups each in turn must be exhausted before any member of the next group can succeed.
The only difference between the two disciples as regards succession of the Distant Kindred of the fourth
class is as to the allotment of shares among the descendants. (see §78 below)
End of Document
Page 2 of 2
§ 77. Uncles and aunts
Mulla
To distribute the estate among the uncles and aunts of the deceased, proceed as follows:—
(1) First, assign two third to the paternal side, that is, to paternal uncles and aunts, even if there be only
one such, and one-third to the maternal side, that is, to maternal uncles and aunts, even if there be only
one such.
(2) Next, divide the portion assigned to the paternal side, that is two third of the estate among
(a) full paternal aunts in equal shares; failing them, among

(b) consanguine paternal aunts in equal shares; and, failing them, among
(c) uterine paternal uncles and aunts, according to the rule of the double share to the male.
(3) Lastly, divide the portion assigned to the maternal side, that is, one-third of the estate, among
(a) full maternal uncles and aunts; failing them, among

(b) consanguine maternal uncles and aunts; and failing them, among
(c) uterine maternal uncles and aunts; according to the rule, in each case, of the double share to the
male.
(4) If there be no uncle or aunt on the paternal side, the maternal side will take the whole. Similarly, if
there be no uncle or aunt on the maternal side, the paternal side will take the whole.
Sir. 55-56.
Note that no claimant on the paternal side excludes any claimant on the maternal side, arid no claimant on
the maternal side excludes any claimant on the paternal side.
Note particularly that full paternal uncles and consanguine paternal uncles are Residuaries.
Hence we are not concerned with them here.
There is no difference between the two disciples as regards the cession of uncles and aunts.
Illustrations.
Note.—The result would be the same if the deceased left a uterine maternal uncle and aunt instead of a
full maternal uncle and aunt.
(2) Rules of succession
The present section is based upon the following rules:—
(1) If there are claimants on the paternal side, together with claimants on the maternal side, the former
will collectively take two third, and the latter one-third, and each side will then divide its own
collective share according to the rule of the double share to the male.
(2) Among claimants on the same side, those of the full blood are preferred to those of the half blood,
and the consanguine relations are preferred to uterine relations.
(3) Order of priority
The uncles and aunts may belong to the paternal side or they may belong to the maternal side. The two
sides inherit together, and no claimant on either side excludes any claimant on the other side. The order of
succession among the uncles and aunts of the deceased is explained in the Table on p 111.
End of Document
Page 2 of 2
CHAPTER VIII SHIA LAW OF INHERITANCE
Mulla
VIII SHIA LAW OF INHERITANCE
Work of highest authority: Sharaya-ul-Islam.—The most authoritative text book of the Shia law is
Sharaya-ul-Islam,1 the whole of which has been translated into French by M Query under the title Droit
Musulman.
1 Agha Ali Khan v Altaf Hasan Khan, (1892) 14 All. 429, 450; Baker Ali Khan v Anjuman Ara Begum, (1902) 30 IA 94, 112 : 25 All.
236; Aga Sheralli v Bai Kulsum, (1908) 32 Bom. 540, 558; Aziz Bano v Muhammad Ibrahim, (1925) 47 All, pp 823, 828, 829, 836 :
89 I.C. 690 : AIR 1925 All 720.
End of Document
§ 78. Descendants of uncles and aunts
Mulla
If there are no uncles or aunts of the deceased, the estate will devolve upon the descendants of uncles and
aunts, other than sons how lowsoever of full paternal uncles and consanguine paternal uncles who are
Residuaries. To distribute the estate among these relations, proceed as follows (Sir. 56-58):—
(1) First, assign two third to the paternal side, that is, to descendants of paternal uncles and aunts, even if
there be only one such, and one-third to the maternal side, that is, to descendants of maternal uncles and
aunts, even if there be only one such.
(2) Next, divide the portion assigned to the paternal side, that is, two third of the estate, among—
(a) full paternal uncles’ daughters; failing them, among

(b) full paternal aunts’ children; failing them among
(c) consanguine paternal uncles’ daughters; failing them, among
(d) consanguine paternal aunt’s children; and failing them, among
(e) children of uterine paternal uncles and aunts, the division among the members of each of the five
groups above to be made as among Distant Kindred of the first class (see §71)
Note that (a) excludes (b), the reason being that (a) are children of Residuaries (full paternal uncles),
while (b) are children of Distant Kindred (full paternal aunts).
Note also that a full paternal uncle’s son and a consanguine paternal uncle’s son are Residuaries; hence
they do not find any place in the above list.
(3) Lastly, divide the portion assigned to the maternal side, that is, one-third of the estate, among—
(a) children of full maternal uncles and aunts; failing them, among
(b) children of consanguine maternal uncles and aunts; failing them, among
(c) children of uterine maternal uncles and aunts,
the division among the members of each of the three groups above to be made as among Distant Kindred
of the first class (see §71).
(4) If there be no children of paternal uncles and aunts, the children of maternal uncles and aunts will take
the whole. Similarly, if there be no children of maternal uncles and aunts, the children of paternal uncles
and aunts will take the whole.
(5) If there be no children either of paternal uncles or aunts or of maternal uncles or aunts, the estate will
be divided among their grandchildren on the same principle. Failing grandchildren, it will be divided
among remoter descendants, the nearer in degree excluding the more remote.
The order of succession on each side is based on certain rules which are set forth below immediately after
the illustrations.
The only difference between the two disciples as to the succession of descendants of uncles and aunts is
that, according to Abu Yusuf, the portion assigned to each side is to be divided among the claimants per
capita according to the rule of the double share to the male.
Illustrations
(a) The claimants are those indicated in the lowest line of the following diagram:—
Here the first difference in the sex of the ancestors occurs in the second line of descent. Therefore S1
takes two third, and D1 takes one-third. Therefore, the share of D/2 is two third and that of S2 is one-third.
According to Abu Yusuf, D2 being a female will take one-third, and S2 being a male will take two third.
(b) Suppose the surviving relatives to be as shown in the last line of the following diagram:—
Here all the descendants are equal in degree; and they are also the same in blood, that is, they are all
descendants of uncles and aunts of the full blood. But D1 is a child of a Residuary (full paternal uncle’s
son’s son), while S1, D2, and D3 are children of Distant Kindred. Therefore D1 excludes S1, D2, and D3,
and she will take the whole estate (see below “Rules of Succession”).
Suppose now that the surviving relations are S1, D2, and D3. In that case the distribution will be as
follows. Here the sexes differ in the first line. As B has two claimants descended from him, he will count
as two males or four females. C, having only one claimant descended from her, will count as one female.
The estate will therefore be divided into five parts of which B will take four fifth and C1/5.
B’s share four fifth will be divided among his two descendants S1 and D2 according to the rule of the
Page 2 of 4
double portion to the male, so that S1 will take 2/3 × 4/5 = 8/15, and D2 will take 1/3 × 4/5 = 4/15. C’s
share one-fifth will descend to D3. Hence S1 = 8/15; D2 = 4/15 and D3 = 1/5 =3/15.
[According to Abu Yusuf, the shares will be half, one-fourth and one-fourth respectively.]
Rules of Succession Among Descendants.—To distribute the estate among descendants of uncles and
aunts, apply the following rules in the order in which they are given below:—
Rule (1):— The nearer degree excludes the more remote.
Rule (2).— If both the paternal and maternal sides are represented, two-thirds are assigned to the paternal
side and one-third to the maternal side.
Rule (3).—Among claimants on the same side, those of the whole blood are preferred to those of the half
blood, and consanguine relations are preferred to uterine relations. (This rule applies both to the paternal
and maternal sides, and it is to be applied separately to each side.)
Rule (4).—Among claimants on the paternal side, the children of Residuaries are preferred to those of
Distant Kindred. [Thus a full paternal uncle is a Residuary; his daughters, therefore, would be the children
of a residuary, and they would be preferred to the daughters of a full paternal aunt who is a Distant
Kinswoman. Similarly, a consanguine paternal uncle is a Residuary; his daughters therefore would be
daughters of a Residuary, and they would be preferred to the daughters of a consanguine paternal aunt.
Again, a full paternal uncle’s son is a Residuary; his daughters therefore would be children of a
Residuary, and they would be preferred to the daughters of a full paternal uncle’s daughter. Upon the
same principle the daughters of a consanguine paternal uncle’s son would be preferred to the daughters of
a consanguine paternal uncle’s daughter. This rule cannot apply to relations on the maternal side, because
none of the maternal uncles is a Residuary.]
Rule (5).—After ascertaining which of the relations are entitled to succeed, the portion assigned to the
paternal side is to be distributed among the members of that side as among Distant Kindred of the first
class (§71). The portion assigned to the maternal side is also to be distributed according to the same
principle (§71).
The whole of §78 is based on the above rules.
Table of uncles and aunts of the deceased and their descendants up to the third generation
In the following Table, F stands for “full,” C for ‘consanguine/and Ut for “uterine.” P stands for
“paternal” and M for “maternal.” U stands for “uncle” and A for “aunt.” The small letter s stands for
“son,” d stands for “daughter,” and ch. for “children.” The italics indicate Residuaries; the rest are Distant
Kindred. Note that the maternal side is not excluded by the paternal sides, but succeeds with members of
that side:—
Page 3 of 4
Line of uncles and aunts.—In this line F.P.U. and C.P.U. are Residuaries. The rest are Distant Kindred,
and the order of succession among them is shown in the case of paternal uncles and aunts, by the Arabic
numerals (1), (2) and (3), and in the case of maternal uncles and aunts by the Roman figures (i), (ii), and
(iii), (see §77).
1st generation.—If there be no uncles or aunts, the estate devolves upon their children. Of these, F.P.U.s
and C.P.U.s are Residuaries. The rest are Distant Kindred, and the order of succession among them is
shown in the case of children of paternal uncles and aunts, by the Arabic numerals (1), (2), (3), (4) and
(5), and in the case of maternal uncles and aunts by the Roman figures (i), (ii) and (iii). No. (1), being the
child of a residuary, is preferred to No. 2, though they are both of full blood. For the same reason, No. (3)
is preferred to No. (4), though they are both consanguine relations. (see §78)
2nd generation.—If there be no children of uncles and aunts, whether paternal or maternal, the estate
devolves upon the grandchildren of uncles and aunts. Of these, F.P.U.s and C.P.Us are Residuaries. The
rest are Distant Kindred, and the order of succession among them is shown in the same manner as in the
first generation. No. (1), being the child of a residuary, is preferred to the group constituted by No. (2) and
No. (2), they being children of Distant Kindred, though they are all of full blood. For the same reason No.
(3) is preferred to the group constituted by No. (4) and No. (4), though they are all consanguine relations.
Failing No. (1), No. (2) and No. (2) inherit together. Failing No. (3), No. 4 and No. (4) inherit together.
Failing these No. (5) succeeds.
3rd generation.—This does not require any further explanation. All that requires to be noted is that No. (1)
excludes the group constituted by No. (2), No. (2), and No. (2), and No. (3) excludes the group constituted
by No. (4), No. (4) and No. (5) of the half blood, and consanguine relations are preferred to uterine
relations. [This rule applies both to the paternal and maternal sides, and it is to be applied separately to
each side.].
(3) Order of priority among descendants
The descendants of uncles and aunts may belong to the paternal side or they may belong to the maternal
side. The two sides inherit together, and no claimant on either side excludes any claimant on the other
side. The Table given on the previous page shows at a glance all uncles and aunts of the deceased and
their descendants up to the third generation.
End of Document
Page 4 of 4
§ 87. Division of heirs
Mulla
§ 87. Division of heirs
The Shias divide heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relations, and (2)
heirs by marriage, that is, husband and wife.
End of Document
§ 79. Other Distant Kindred of the fourth class
Mulla
§ 79. Other Distant Kindred of the fourth class
If there are no descendants of uncles and aunts, the estate will devolve upon other Distant Kindred of the
fourth class in the order of succession given, in §76 above, the distribution among higher uncles and aunts
being governed by the principles stated in §77, and that among their descendants by those stated in §78
[Sir. 58].
End of Document
§ 88. Three classes of heirs by consanguinity
Mulla
(1) Heirs by consanguinity are divided into three classes, and each class is subdivided into two sections.
These classes are respectively composed as follows:—
I. (i) Parents;
(ii) children and other lineal descendants h.l.s.
II. (i) Grandparents h.h.s. (true as well as false);
(ii) brothers and sisters and their descendants h.l.s.
III (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of his parents and
grandparents h.h.s., and their descendants h.l.s.
(2) Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes
the third. But the heirs of the two sections of each class succeed together, the nearer degree in each section
excluding the more remote in that section (Baillie, II, 276, 280, 285).
As to the distribution of estate among the heirs, (see §96 et seq.)
Illustrations
(a) A Shia Mahomedan dies leaving a daughter’s son, a father’s mother, and a full brother.
[In Hanafi law the father’s mother as a Sharer will take one-sixth, and the full brother as a Residuary will
take five sixth; the daughter’s son, being a Distant Kinsman, will be entirely excluded from inheritance.]
By Shia law the daughter’s son, being an heir of the first class, will succeed to the whole inheritance in
preference to the father’s mother and the full brother, both of whom belong to the second class of heirs.
(b) A Shia Mahomedan dies leaving a brother’s daughter and a full paternal uncle.
[In Hanafi law the full paternal uncle, being a Residuary, will take the whole property to the exclusion of
the brother’s daughter who is a Distant Kinswoman.]
By Shia law the brother’s daughter, being an heir of the second class, will succeed in preference to the full
paternal uncle who belongs to the third class of heirs.
(c) A Shia Mahomedan dies leaving a full paternal uncle’s son and a mother’s father.
[In Hanafi law the full paternal uncle’s son, being a Residuary, will succeed to the whole estate to the
entire exclusion of the mother’s father who is a Distant Kinsman.]
By Shia law the mother’s father, being an heir of the second class, will succeed in preference to the full
paternal uncle’s son, who belongs to the third class of heirs.
A Shia Mahomedan dies leaving (1) a father, (2) a mother, (3) a daughter, (4) a son’s son, (5) a brother,
and (6) a paternal uncle. Which of these relations are entitled to succeed?
Here the first four relations, belong to the first class of heirs, the fifth belongs to the second class, and the
sixth belongs to the third class. The fifth and sixth are therefore excluded from inheritance. The father and
mother belong to the first section of Class 1, and they are both equal in degree. The daughter and son’s
son belong to the second section, and of these two, the daughter, being nearer in degree, excludes the
son’s son. The only persons therefore entitled to inherit are the father, the mother, and the daughter.
(e) The surviving relations are (1) a grandfather, (2) a grandmother, (3) a great-grandfather, (4) a brother,
and (5) a brother’s son. Here all the relations belong to the second class of heirs, the first three belonging
to the first section of that class and the last two to the second section. The grandfather and grandmother
exclude the great-grandfather by reason of the rule that the nearer in each section excludes the more
remote. For the same reason, the brother excludes the brother’s son. The only persons therefore entitled to
inherit are the grandfather, the grandmother and the brother.
Note that parents do not exclude children, but inherit with them. If there be no children, parents inherit
with grandchildren. Similarly, in the second class, brothers and sisters do not exclude grandparents, but
inherit with them. If there be no brothers or sisters, the grandparents inherit with the children of brothers
and sisters. In the same way, in the third class, paternal uncles and aunts do not exclude maternal uncles
and aunts, but inherit with them.
The above illustrations exemplify the fundamental distinction between the Sunni and the Shia Law of
Inheritance. Under the Sunni law, Distant Kindred are postponed to Sharers and Residuaries (§67); under
the Shia law, they inherit with them. The Sunnis prefer agnates to cognates: the Shias prefer the nearest
kinsman, whether they be agnates or cognates. In fact, the Shia law does not recognize any separate class
of heirs corresponding to the “Distant Kindred” of Sunni law. All heirs under the Shia law are either
Sharers or Residuaries (§90).
End of Document
Page 2 of 2
§ 80. Successor by contract
Mulla
VII HANAFI LAW OF INHERITANCE > E.—SUCCESSORS UNRELATED IN BLOOD
E.—SUCCESSORS UNRELATED IN BLOOD
§ 80. Successor by contract
In default of Sharers, Residuaries, and Distant Kindred, the inheritance devolves upon the “successor by
contract,” that is, a person who derives his right of succession under a contract with the deceased in
consideration of an undertaking given by him to pay any fine or ransom to which the deceased may
become liable.
Sir. 13; Hedaya, 517. The right of inheritance by reason of Wala dealt with in this section is taken away
by the Slavery Act, 1843.
End of Document
§ 89. Husband and wife
Mulla
§ 89. Husband and wife
The husband or wife is never excluded from succession, but inherits together with the nearest heirs by
consanguinity, the husband taking one-fourth or half, and the wife taking one-eight or one-fourth under
the conditions mentioned in the Table of Sharers on page 112.
As to the disability of a childless widow to succeed to her husband’s immovable property, (see §113
below).
End of Document
§ 81. Acknowledged kinsman
Mulla
§ 81. Acknowledged kinsman
Next in succession is the “Acknowledged Kinsman,” that is, a person of unknown descent in whose
favour the deceased has made an acknowledgement of kinship, not through himself, but through another.
Such an acknowledgement confers upon the “Acknowledged Kinsman” the right of succession to the
property of the deceased, subject to bequests to the extent of the bequeathable third, but it does not invest
the person acknowledged with all the rights of an actual kinsman.
Sir. 13. The kinship acknowledged must be kinship through another, that is, through the deceased’s father or his grandfather. Thus a
person may acknowledge another to be his brother, for that is kinship through the father.42 But he may not acknowledge another to be
his son, for that is kinship through himself. The acknowledgement by the deceased of a person as his son or daughter stands upon a
different footing altogether and it is dealt with in the chapter on “Parentage”.
42 Tagore Law Lectures, 1873, pp 92-93.
End of Document
§ 90. Table of Sharers—Shia Law
Mulla
§ 90. Table of Sharers—Shia Law
(1) For the purpose of determining the shares of heirs, the Shias divide heirs into two classes, namely,
Sharers and Residuaries. There is no separate class of heirs corresponding to the “Distant Kindred” of
Sunni law.
(2) The sharers are nine in number. The Table on page 112 gives a list of Sharers together with the shares
assigned to them in Shia law.
(3) The descendants h.l.s. of Sharers are also Sharers.
Of the nine sharers mentioned in the Table, the first two are heirs by affinity. The next three belong to the
first class of heirs by consanguinity [§88], and the remaining four belong to the second class. There are no
Sharers in the third class of heirs.
Note that the true grandfather h.h.s., the true grandmother h.h.s., and the son’s daughter h.l.s., who are
Sharers according to Sunni law, are not Sharers, but Residuaries, according to Shia law.
It is very important to note that the descendants of Sharers are also Sharers. This refers, of course, to the
descendants of the (1) daughter, (2) uterine brother, (3) uterine sister, (4) full sister, and (5) consanguine
sister. It does not refer to the descendants, if they can be called descendants at all, of the husband, wife,
father or mother. The Shia jurists are not concerned with the descendants of these four relations.
End of Document
§ 82. Universal legatee
Mulla
§ 82. Universal legatee
The next successor is the “Universal Legatee,” that. is, a person to whom the deceased has left the whole
of his property by will.
Sir. 13. It is to be noted that the prohibition against bequeathing more than one-third of the net assets
exists only for the benefit of the heirs. Hence a bequest of the whole will take effect if the deceased has
left no known heir.43
43 Baillie’s Mahomedan Law of Inheritance, p 19.
End of Document
§ 91. Residuaries
Mulla
§ 91. Residuaries
(1) All heirs other than Sharers are Residuaries.
(2) The descendants h.l.s. of Residuaries are also Residuaries.
Thus, sons, brothers, uncles and aunts are all Residuaries. Their descendants, therefore, are also
Residuaries. For example, a son’s daughter, being a descendant of a Residuary (son), is also a Residuary.
TABLE OF SHARERS—SHIA LAW [§90]
(Baillie, II, 271-276, 381.)
Note.—The descendants h.l.s. of sharers are also sharers. (§90)
Of the nine Sharers mentioned in the Table of Sharers, there are four who inherit sometimes as Sharers,
and sometimes as Residuaries. These are the (1) father, (2) daughter, (3) full sister, and (4) consanguine
§ 91. Residuaries
sister. As to the last three, it is to be observed that where any one of them would have, if living, inherited
as a Sharer, her descendants would inherit as Sharers, and if she would have inherited as a Residuary, her
descendants would inherit as Residuaries (§95).
2 As to the father’s extra rights as Sharer, see §108 and 110.
End of Document
Page 2 of 2
§ 83 Escheat
Mulla
§ 83 Escheat
On failure of all the heirs and successors above specified, the property of a deceased Sunni Mahomedan
escheats to the Government.
Sir. 13. The rule of pure Mahomedan law in this respect is different, for according to that rule the property does not devolve upon
Government by way of inheritance as ultimus haeres, but falls into the baitul-mal (public treasury) for the benefit of Mussalmans.
End of Document
§ 92. Distribution of property
Mulla
(1) If the deceased left only one heir, the whole property would devolve upon that heir, except in the case
of a wife. If the only heir be a wife, the older view is that she is entitled to no more than her Koranic share
(one-fourth) and the residue (three-fourths) escheats to the Government.
Baillie, II, 262. The reason of the exception in the case of a wife is that she is not entitled to the surplus by
Return, not even if there be no other heir. If she is the sole heir, she takes one-fourth, and the surplus
passes to the Imam, now to the Government of India. Ameer Ali is of opinion that there being no
machinery now to take charge of the Imam’s share, the surplus should pass to the wife.3 This opinion has
been followed by the Oudh Court.4
If the only heir be a sharer, e.g., a husband, he takes his Koranic share (one-half) as a Sharer, and the
residue by Return. If the only heir be a Residuary, eg, a brother, he takes the whole estate as a Residuary.
As to Sunni law, (see §66).
(2) If the deceased left two or more heirs, the first step in the distribution of the estate is to assign his or
her share to the husband or wife. The next step is to ascertain which of the surviving relations are entitled
to succeed, and this is to be done with the help of the rules laid down in §88. The estate (minus the share
of the husband or wife, if any) is then to be divided among those entitled to succeed according to the rules
of distribution applicable to the class to which they belong (§96-110).
Note that the husband or wife, as the case may be, is always entitled to succeed whatever be the class to
which the other claimants belong. The husband and wife always inherit as Sharers, their shares being
respectively one-fourth and one-eight when there is a lineal descendant, and half and one-fourth when
there is no lineal descendant. Since there are no lineal descendants either in the second or third class of
heirs, it follows that when the husband or wife succeeds with the heirs of the second or third class, he or
she takes his or her full share, that is, the husband takes half, and the wife takes one-fourth.
3 Ameer Ali, 5th Edn, vol II, p 123, footnote (3).

4 Abdul Hamid Khan v Peare Mirza, (1935) 10 Luck 550 : 153 IC 379 : AIR 1935 Oudh. 78.
End of Document
Page 2 of 2
§ 84. Step-children
Mulla
VII HANAFI LAW OF INHERITANCE > F.—MISCELLANEOUS
F.—MISCELLANEOUS
§ 84. Step-children
Step-children do not inherit from step-parents, nor do step-parents inherit from step-children.
See Macnaghten, p 99. Precedents of Inheritance No. XXI.
End of Document
§ 93. Representation
Mulla
(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.5
(2) Where for purpose (a) the rule of exclusion applies (ie, the, nearer in degree excludes the more
remote), it is true both of Sunnis and Shias 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. In that case, is the principle of representation to be applied for
purpose (b), that is, for ascertaining the share or each grandson? This is a further and different question. 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
grandson’s shares (see rule (1) in §71 supra). 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 stirpes. As explained in §71, 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.
(4) For the limited purpose of calculating the share of each heir—as distinct from the purpose of
ascertaining the heirs—the 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
descendants 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 (see §65 supra), it is not without other limitations (see note “Principles of
succession among sharers and residuaries” at pp 83-85 supra). But among Shias’ it applies within each
section in all cases without distinction of class or sex (see §88(2) supra and Baillie II, 270). 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.
5 Aga Sheralli v Bai Kulsum, (1908) 32 Bom, pp 540, 547, 548, 558 : 1908 (10) Bom LR 717 [LNIND 1908 BOM 27].
End of Document
Page 2 of 2
§ 85. Bastard
Mulla
F.—MISCELLANEOUS
§ 85. Bastard
An illegitimate child is considered to be the child of its mother only, and as such it inherits from its
mother and its relations, and they inherit from such child.44 But it has been held that an illegitimate son
cannot inherit from the legitimate son of the same mother.45
Illustrations
[A Mahomedan female of the Sunni sect dies leaving a husband and an illegitimate son of her sister. The
husband will take half and the sister’s son, though illegitimate, will take the other half as a distant
kinsman, being related to the deceased through his mother.46
An illegitimate child does not inherit from its putative father or his relations, nor do they inherit from such
child. In Rahmat Ullah v Maqsood Ahmad,47 it was held that the “mother’s relations” did not include her
relations by a subsequent marriage”.
44 Tagore Law Lectures, 1873, p 123.

45 Rehmat Ullah v Maqsood Ahmad, AIR 1952 All 640 [LNIND 1949 ALL 38].
46 Bafatun v Bilaiti Khanum, (1903) 30 Cal. 683.
47 Rehmat Ullah v Maqsood Ahmad, AIR 1952 All 640 [LNIND 1949 ALL 38].
End of Document
§ 94. Stirpital succession
Mulla
§ 94. Stirpital succession
Succession among descendants in each of the three classes of heirs (§88) is per stirpes, and not per
capita.6
This is repeating in other words the principle of representation described in the last section. Thus, suppose
a Shia dies leaving two grandsons GS1 and GS2 by a predeceased son A and a grandson GS3 by another
predeceased son B, as shown in the following diagram:—
By Shia law, the estate is to be notionally divided first among the two sons A and B, so that each takes ½.
A’s share half descends to his two sons GS1 and GS2, each taking one-fourth, B’s share half passes to his
son GS3. The division, in other words, is according to the stocks, and not according to the claimants. By
Sunni law, GS1, GS2 and GS3 take per capita, that is, each takes one-third without reference to the shares
which their respective fathers, if living, would have taken. Under the Shia law, A’s two sons represent A
and stand in his place, and B’s son represents B and stands in his place. Under the Sunni law, there is no
such representation (§53).
The above is an example of succession per stirpes among the descendants of sons. The descendants of
daughters, brothers, sisters, uncles, aunts, granduncles and grandaunts also succeed per stirpes (see §96,
100, 104 and 105).
6 Aga Sheralli v Bai Kulsum, (1908) 32 Bom. 540 : 1908 (10) Bom LR 717.
End of Document
§ 86. Missing persons
Mulla
F.—MISCELLANEOUS
§ 86. Missing persons
When the question is whether a Mahomedan is alive or dead, and it is proved that he has not been heard of
for seven years by those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is on the person who affirms it.
Under the Hanafi law, a missing person is to be regarded as alive till the lapse of ninety years from the
date of his birth. But it has been held by a Full Bench of the Allahabad High Court that this rule is only a
rule of evidence, and not one of succession, and it must therefore be taken as superseded by the provisions
of the Indian Evidence Act.48 The present section reproduces, with some verbal alterations, the provisions
of section 108 of the Indian Evidence Act.
48 Mazhar Ali v Budh Singh, (1884) 7 All. 297 : (1884) A.W.N. 333 : 4 IC 422; Mairaj v Abdul Wahid, (1921) 43 All. 673 : 63 IC 286
: A.I.R. 1921 All 175; See Also Moola Cassim v Moola Abdul, (1905) 33 Cal. 173, 178 : 32 IA 177; Azizul Hasan v Mohammad
Faruq, (1934) 9 Luck 401 : 147 IC 973 : (‘34) A.O. 41.
End of Document
§ 95. Succession among descendants
Mulla
§ 95. Succession among descendants
The descendants of a person who, if living, would have taken as a Sharer, succeed as Sharers. The
descendants of a person who, if living, would have taken as a Residuary, succeed as Residuaries.
This follows necessarily from the principle of representation described in §93. Thus, suppose a Shia dies
leaving a full brother’s daughter and a uterine brother’s son as shown in the following diagram:—
The uterine brother, had he survived, would have taken as a Sharer his Koranic share one-sixth (see Table
of Sharers, No. 6). The full brother, had he survived, would have taken five sixth as a residuary. The
uterine brother’s son, being the descendant of a Sharer, will succeed as a sharer, and representing as he
does his father, take his father’s share one-sixth. The full brother’s daughter, being the descendant of a
Residuary, will succeed also as a Residuary, and representing as she does her father, takes her father’s
portion five sixth. Under the Sunni law, both a full brother’s daughter and a uterine brother’s son are
Distant Kindred of the third class. According to Imam Muhammad, the former would take five sixth and
the latter one-sixth exactly as in Shia law (see §75). According to Abu Yusuf, the former entirely excludes
the latter (see notes to §74), “Doctrine of Abu Yusuf”.
Having described the mode of distribution in §92, and having explained the principle of representation in
section 93, and its two corollaries in §94 and 95, we proceed to enumerate the special rules by which
succession in each of the three classes of heirs mentioned in §88 is governed.
End of Document
§ 96. Rules of succession among heirs of the first class
Mulla
VIII SHIA LAW OF INHERITANCE > DISTRIBUTION AMONG HEIRS OF THE FIRST CLASS
DISTRIBUTION AMONG HEIRS OF THE FIRST CLASS
The persons who are first entitled to succeed to the estate of a deceased Shia Mahomedan are the heirs of
the first class along with the husband or wife, if any (§92(2)). The first class of heirs comprises parents,
children, grandchildren, and remoter lineal descendants of the deceased. The parents inherit together with
children, and, failing children, with grandchildren, and failing grandchildren, with remoter lineal
descendants of the deceased, the nearer excluding the more remote (§88). Succession in this class is
governed by the following rules:—
(1) Father.—The father takes one-sixth as a Sharer, if there is a lineal descendant; as a Residuary, if there
be no lineal descendant (see Table of Sharers, No. 3).
(2) Mother.—The mother is always a Sharer, and her share is one-sixth or one-third (see Table of Sharers,
No. 4).
(3) Son.—The son always takes as a Residuary.
(4) Daughter.—The daughter inherits as a Sharer, unless there is a son in which case she takes as a
Residuary with him according to the rule of the double share to the male (see Table of Sharers, No. 5).
(5) Grandchildren.—On failure of children, the grandchildren stand in the place of their respective
parents, and they inherit according to the principle of representation described in §93, 94 and 95, that is to
say —
(i) the children of each son take the portion which their father, if living, would have taken as a
Residuary and divide it among them according to the rule of the double share to the male;
(ii) the children of each daughter take the portion which their mother, if living, would have taken
either as a Sharer or as a Residuary and divide it among them also according to the rule of the
double share to the male.
(6) Remoter lineal descendants.—Succession among remoter lineal descendants is governed by the same
principle of representation, that is to say, great-grandchildren take the portion which their respective
parents, if living, would have taken, and divide it among them according to the rule of the double share to
the male, and great-great-grand children take the portion which their respective parents, if living, would
have taken, and divide it among them also according to the same rule.
Baillie, 11, 276-279.
Mode of distribution among husband or wife and heirs of the first class—
first, assign his or her share to the husband or wife (see Table of Sharers Nos. 1-2);
next, assign their shares to such of the claimants as can inherit as Sharers only;
next, divide the residue, if any, among the residuaries;
lastly, if there be no Residuary, and the sum total of the shares is less than unity, apply the ‘Doctrine of Return’ as stated in §106 to 109,
and if the sum total exceeds unity, proceed as stated in §110.
Illustrations
Note.—Under the Sunni law, the mother takes 1/3 x 1/2 = 1/6, and the father one-third as a residuary (see
Table of Sharers, Sunni law, No. 5).
Note.—Under the Sunni law, the mother takes 1/3 x 3/4 = 1/4, and the father half as a residuary (see Table
of Sharers, Sunni law, No. 5).
Note.—If instead of a son, there was a son’s daughter, she would have taken two third as representing her
father.
Note.—The shares would be the same if we substitute daughters’ sons or daughters’ daughters for
daughters.
(e) A Shia dies leaving a grandson GS1 and a grand daughter GD1 by a predeceased son A, a
granddaughter GD2 by another predeceased son B, a grandson GS2 and a granddaughter GD3 by a
predeceased daughter X, and a grandson GS3 by another predeceased daughter Y, as shown in the
following diagram:—
Page 2 of 3
Here the two daughters X and Y, if living, would have taken as residuaries with the two sons A and B
according to the rule of the double share to the male, so that A and B would each have taken two sixth, and
X and Y would each have taken one-sixth.
A’s share two sixth will pass to his son and daughter according to the rule of the double share to the male,
so that GS1 will take 2/3 x 2/6 = 2/9 and GD1 will take 1/3 x 2/6 = 1/9.
B’s share two sixth will pass to his daughter GD2.
X’s share one-sixth will be divided between her son and her daughter according to the rule of the double
share to the male, so that GS2 will take 2/3 x 1/6 = 1/9, and GD3 will take 1/3 x 1/6 = 1/18.
Y’s share one-sixth will pass to her son GS3.
The shares will thus be 2/9 + 1/9 + 2/6 + 1/9 + 1/18 + 1/6 = 1.
According to the Hanafi law, GS1 and GD1 and GD2 are Residuaries and they exclude GS2, GD3, and
GS3 who are Distant Kindred. GS1 will take half, and GD1 and GS2 will each take one-fourth.
If in the above case, the deceased also left a wife, the wife will first take her share one-eight, and the
remaining seven eight will be divided among the six grandchildren in the same proportions.
End of Document
Page 3 of 3
§ 97. Rules of succession among heirs of the second class
Mulla
VIII SHIA LAW OF INHERITANCE > DISTRIBUTION AMONG HEIRS OF THE SECOND CLASS
DISTRIBUTION AMONG HEIRS OF THE SECOND CLASS
§ 97. Rules of succession among heirs of the second class
If there are no heirs of the first class, the estate (minus the share of the husband or wife, if any) devolves
upon the heirs of the second class. The second class of heirs comprises grandparents h.h.s. and brothers
and sisters and their descendants h.l.s. (§88). The rules of succession among the heirs of this class are
different according as the surviving relations are —
(1) grandparents h.h.s., without brothers or sisters or their descendants;

(2) brothers and sisters or their descendants, without grandparents or remoter ancestors;
(3) grandparents h.h.s., with brothers and sisters or their descendants.
The first case is dealt with in §98. The second case is dealt with in §99 and 100. The third case is dealt
with in §101.
End of Document
§ 98. Grandparents h.h.s. without brothers or sisters or their descendants
Mulla
§ 98. Grandparents h.h.s. without brothers or sisters or their descendants
If there are no brothers or sisters, or descendants of brothers or sisters, the estate (minus the share of the
husband or wife, if any) is to be distributed among grandparents according to the following rules:—
(1) If the deceased left all his four grandparents surviving, the paternal grandparents take two-thirds, and
divide it between them according to the rule of the double share to the male, and the maternal
grandparents take one-third, and divide it equally between them, as shown below:—
(2) If there is only one grandparent on the paternal side, he or she takes the entire two third. Similarly, if
there is only one grandparent on the maternal side, he or she takes the entire one-third, as shown below:—
(3) If there are no grandparents, the property will devolve according to the same rules upon remoter
ancestors of the deceased, the nearer excluding the more remote.
Baillie, II, 281, 283.
End of Document
§ 99. Brothers and sisters, without any ancestor
Mulla
If the deceased left no ancestors, but brothers and sisters of various kinds, the estate (minus the share of
the husband or wife, if any) will be distributed among them according to the same rules as those in Hanafi
law. The said rules are as follows:—
(i) Brothers and sisters of the full blood exclude consanguine brothers and sisters.
(ii) Uterine brothers and sisters are not excluded by brothers or sisters either full or consanguine, but
they inherit with them, their share being one-third or one-sixth according to their number (see
Table of Sharers, Nos. 6 and 7).
(iii) Full brothers take as Residuaries, so do consanguine brothers.
(iv) Full sisters take as Sharers (see Table of Sharers, No. 8), unless there be a full brother in which
case they take as Residuaries with him according to the rule of the double share to the male.
Consanguine sisters also take as Sharers (see Table of Sharers, No. 9) unless there be a
consanguine brother with them in which case they take as Residuaries with him according to the
same rule.
Baillie, II, 280.
Illustrations
Note.—The shares of the several heirs in the following illustrations are the same both in Sunni and Shia
law. The illustrations are given to familiarize the reader with combinations of heirs that are common in
Shia law:—
End of Document
Page 2 of 2
§ 100. Descendants of brothers and sisters, without any ancestor
Mulla
If there are no brothers or sisters of any kind, and no ancestors, but there are children of bothers and of
sisters, the estate (minus the share of the husband or wife, if any) will devolve upon them according to the
principle of representation described in §93, 94 and 95, that is to say—
(1) The children of each full or consanguine brother will take the portion which their father, if living,
would have taken as a Residuary, and they will divide it among them according to the rule of the
double share to the male; and the children of each full or consanguine sister will take the portion
which their mother, if living, would have taken either as a Sharer or as a Residuary, and they will
divide it among them according also to the rule of the double share to the male.
(2) The children of each uterine brother will take the portion which their father, if living, would have
taken as a Sharer, and they will divide it equally among them; and so will the children of each
uterine sister.
(3) If there are no children of brothers or sisters, the estate will devolve upon the grandchildren of
brothers and sisters according to the principle of representation, that is to say, the grandchildren of
full or consanguine brothers and sisters take the portion which their respective parents, if living,
would have taken and divide it among them according to the rule of the double share to the male,
and the grandchildren of uterine brothers and sisters take the portion which their respective
parents, if living, would have taken, and divide it equally among them without distinction of sex.
Baillie, II, 284.
Illustrations
(b) Suppose the claimants to be as shown in the second line of the following diagram, that is to say,—
two sons and a daughter of a full brother, B1;

a daughter of another full brother, B2;
a son and a daughter of a uterine brother, UB;
a daughter of a uterine sister, US;
First, assign their respective shares to the brothers and sisters thus:—
Next assign portions to their children thus:—
US’s share one-sixth will go to her daughter D4;
UB’s share one-sixth will be divided equally between S3 and D3, each taking one-twelve;
B2’s share one-third will go to his daughter D2;
B1’s share one-third will be divided among his two sons and his daughter according to the rule of the
double share to the male, so that S1 will take 2/5 x 1/3 = 2/15, S2 will also take two fifteen, and D1 will
take 1/5 x 1/3 = 1/15.
The shares will thus be 2/15+2/15+1/15+1/3+1/12+1/12+1/6 = 1.
Suppose that in the above case the children of the brothers and sisters had all predeceased the propositus,
and that S1 had left a son and a daughter, that S3 also had left a son and a daughter, and the remaining five
nephews and nieces had each left a son. In that case, the share of S1, that is, two fifteen, would be divided
between his son and his daughter according to the rule of the double share to the male, the son taking 2/3
x 2/15 = 4/45, and the daughter 1/3 x 2/15 = 2/45. The share of S3, that is, one-twelve, would be divided
equally between his son and daughter, they being descendants of a uterine brother, so that each would
take one-twenty-fourth. The sons of S2, D1, D2, D3, and D4, would take their respective parents’ portion.
End of Document
Page 2 of 2
§ 101. Grandparents and remoter ancestors with brothers and sisters or their
descendants
Mulla
§ 101. Grandparents and remoter ancestors with brothers and sisters or their
descendants
(1) If the deceased left grandparents and also brothers or sisters, the estate (minus the share of the husband
or wife, if any) is to be distributed among grandparents and brothers and sisters, according to the
following rules:—
(a) A paternal grandfather counts as a full or consanguine brother, and a paternal grandmother counts
as a full or consanguine sister.
(b) A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a
uterine sister.
(2) On failure of grandparents, the remoter ancestors of the deceased stand in the place of the grandparents
through whom they are respectively connected with the deceased. On failure of brothers or sisters, their
descendants stand in the place of their respective parents.
Baillie, II, 281, 391-392; Wilson, Anglo-Muhammadan Law, section 468.
The effect of the above rules is that when among heirs of the second class you find a single brother or
sister, full, consanguine or uterine, what you have to do is to substitute for grandparents so many brothers
and sisters according to the above rules, and then assign shares to grandparents as if they were so many
brothers and sisters, as is done in the following illustrations:—
Note.—Here the full sister takes as a residuary with the paternal grandfather, the latter being counted as a
full brother.
§ 101. Grandparents and remoter ancestors with brothers and sisters or their descendants
Note.—Here the consanguine sister takes as a residuary with the paternal grandfather, the latter being
counted as a consanguine brother.
Note.—Here the maternal grandmother counts as a uterine sister, so that the case is the same as if we had a
uterine brother and a uterine sister; these take one-third between them as sharers.
Note.—First substitute brothers and sisters for grandparents, so that we have 2 full brothers, 2 full sisters,
one uterine brother and one uterine sister. The uterine brother and sister take one-third between them as
sharers. The residue two third is to be divided between full brothers and 2 full sisters as residuaries
according to the rule of the double share to the male. Each brother therefore takes 2/6 x 2/3 = 4/18, and
each sister 1/6 x 2/3 = 2/18. The result would be the same if instead of a full brother and a full sister in the
above case, there were a consanguine brother and a consanguine sister.
Note.—Substitute “uterine sister” for “mother’s mother,” so that we have one uterine brother and two
uterine sisters. Next as there is a consanguine sister, substitute “consanguine brother” for “father’s father”
and “consanguine sister” for “father’s mother.” The uterine-brother and the two uterine sisters take
collectively one-third as sharers. The residue two third is to be divided between one consanguine brother
and two consanguine sisters as residuaries according to the rule of the double share to the male. The
brother therefore takes 2/4 x 2/3 = 1/3, and each sister takes 1/4 x 2/3=1/6.
Note.—In the above case, it is all the same whether you count the paternal grandfather as a full brother or
as a consanguine brother; in either case he takes as a residuary.
Note.—The above, illustration is taken from Baillie, II, pp. 327-328, 392.
End of Document
Page 2 of 2
§ 102. Order of succession among heirs of the third class
Mulla
VIII SHIA LAW OF INHERITANCE > DISTRIBUTION AMONG HEIRS OF THE THIRD CLASS
DISTRIBUTION AMONG HEIRS OF THE THIRD CLASS
(1) If there are no heirs of the first or second class, the estate (minus the share of the husband or wife, if
any) devolves upon the heirs of the third class in the order given below:—
(1) Paternal, and maternal uncles and aunts of the deceased.

(2) Their descendants h.l.s., the nearer in degree excluding the more remote.
(3) Paternal and maternal uncles and aunts of the parents.
(5) Paternal and maternal uncles and aunts of the grandparents.
(7) Remoter uncles and aunts and their descendants in like order.
(2) Of the above groups each in turn must be exhausted before any member of the next group can succeed.
Exception.—If the only claimants be the son of a full paternal uncle and a consanguine paternal uncle, the
former though he belongs to group (2), excludes the latter who is nearer and belongs to group (1).
Baillie, II, 235-286, 349-332.
(1) Exception to §102(2)
The Shias are the followers of Ali. Ali was a cousin of the Prophet. He was also the son-in-law of the
Prophet having been married to his favourite daughter Fatima. The Shias maintain that on the death of the
prophet the Caliphate (successorship to the Prophet) ought to have gone first to Ali, on the ground that he
was the nearest male heir of the Prophet. But the Prophet had also left a consanguine paternal uncle
(named Abbas), and Ali was but a cousin of the Prophet, being the son of a full paternal uncle (Abu Talib)
of the Prophet. Ali therefore could not be the nearest male heir, unless the son of a full paternal uncle was
entitled to succeed in preference to a consanguine uncle. To uphold, however, the claim of Ali and that of
the lineal descendants of the Prophet through Fatima, the Shias had to hold that the son of a full paternal
uncle was entitled to succeed in preference to a consanguine paternal uncle, and this accounts for the
exception to §102(2) above.
(2) No sharers in the third class of heirs
The heirs of the third class are all Residuaries. There is no sharer among them as will be seen on referring
to the Table of Sharers given above.
End of Document
Page 2 of 2
Mulla
To distribute the estate among uncles and aunts proceed as follows:—
(1) First, assign two third of the estate to the paternal side, that is, to paternal uncles and aunts, even
if there be only one such, and one-third to the maternal side, that is, to maternal uncles and aunts,
even if there be only one such.
(2) Next, divide the portion assigned to the paternal side (that is two third of the estate) among the
paternal uncles and aunts exactly as if they were brothers and sisters of the deceased, that is to
say:—
(i) assign to uterine paternal uncles and aunts—
(a) if there be two or more of them, one-third to be equally divided among them;
(b) if there be only one of them, one-sixth;
(ii) divide the remainder among full paternal uncles and aunts according to the rule of the double
share to the male, and, failing them, among consanguine paternal uncles and aunts according
to the same rule.
(3) Lastly, divide the portion assigned to the maternal side, among the maternal uncles and aunts as
follows:—
(i) assign to uterine maternal uncles and aunts—
(a) if there be two or more of them, one-third to be equally divided among them;
(b) if there be only one of them, one-sixth;
(ii) divide the remainder equally among full maternal uncles and aunts, and, failing them, among
consanguine maternal uncles and aunts.
(4) If there be no uncle or aunt on the maternal side, the paternal side takes the whole. Similarly, if
there be no uncle or aunt on the paternal side, the maternal side takes the whole.
Baillie, II, 285, 286, 329.
Note.—In working out examples, proceed in the order given in this section.
Note.—Maternal uncles and aunts take equally without distinction of sex.
Note.—The above result is in accordance with rule (3) above, namely, that the full maternal uncles and
aunts take equally without distinction of sex. This proposition, however, is not free from doubt. There is
another possible view, namely, that full maternal uncles and aunts take equally only if there are no uterine
maternal uncles and aunts [as in illustration (g)], and that if there be any such uncles or aunts (as in the
above illustration), they take according to the rule of the double share to the male. According to this view
the full maternal uncle in the above illustration is entitled to 2/3 x 2/3= 4/9, and the full maternal aunts to
1/3 x 2/3 = 2/9. The same remarks apply to consanguine maternal uncles and aunts.7
7 See Baillie, II, pp 285, 286, and Querry’s Translation of the Sharaya-ul-Islam, sections 214-219; Ameer Ali, 5th Edn, vol 11, pp
119-120.
End of Document
Page 2 of 2
Mulla
If there are no uncles or aunts of any kind, children of deceased uncles and aunts take the portion of their
respective parents according to the principle of representation described in §80, 81, and 82 the children of
each full or consanguine paternal uncle or aunt dividing their parents’ share among them according to the
rule of the double share to the male, and the children of each of the remaining uncles and aunts, that is, of
uterine paternal uncles and aunts, and of maternal uncles and aunts, whether full, consanguine or uterine,
dividing their parents’ share equally among them.
If there are no children of uncles or aunts, the grandchildren of uncles and aunts take the portion of their
respective parents according to the same principles.
Baillie, II, 287
Note.—In working out examples, first ascertain the hypothetical shares of uncles and aunts,
(a) The surviving relations are—
a son and a daughter of a uterine paternal uncle, and a daughter of a full paternal aunt, as shown in the
following diagram:—
The uterine uncle takes one-sixth. The aunt of the full blood takes the residue five sixth. The uterine
uncle’s share one-sixth is to be divided equally between his son and daughter. The aunt’s share five sixth
goes to her daughter.
(b) Paternal uncle’s son .. two third (the portion of the paternal side)
Maternal aunt’s son .. one-third (the portion of the maternal side)

(c) The surviving relations are8—
a great-granddaughter of a full paternal uncle, D1;
a great-grandson and a great-granddaughter of another such uncle, S1 and D2;
a great-granddaughter of a full paternal aunt, D3;
The two uncles take each twice as much as the aunt, so that each uncle takes two fifth and the aunt takes
one-five. The first uncle’s share two fifth goes to his descendant Dl.
The second uncle’s share two fifth is to be divided between his two descendants S1 and D2 according to
the rule of the double share to the male, so that S1 takes 2/3 x 2/5 = 4/15 and D2 takes 1/3 x 2/5 = 2/15
The aunt’s share one-five passes to her descendant D3.
According to Hanafi law, the shares will be as stated in illustration (b) to §65 above.
8 Aga Sheralli v Bai Kulsum, (1908) 32 Bom. 540 : 1908 (10) Bom LR 717.
End of Document
Page 2 of 2
§ 105. Other heirs of the third class
Mulla
§ 105. Other heirs of the third class
If there are no descendants of uncles or aunts, the estate will devolve upon the other heirs of the third class
in the order of succession given in §102, the distribution among higher uncles and aunts being governed
by the principles stated in §103, and that among their descendants being governed by the principles stated
in §104.
Baillie, II, 287, 331, 332.
End of Document
§ 106. Doctrine of “Return”
Mulla
VIII SHIA LAW OF INHERITANCE > THE “RETURN” AND THE “INCREASE”
THE “RETURN” AND THE “INCREASE”
§ 106. Doctrine of “Return”
If there is a residue left after satisfying the claims of Sharers, but there are no Residuaries in the class to
which the sharers belong, the residue reverts, subject to the three exceptions noted in §107, 108 and 109,
to the Sharers in the proportion of their respective shares.
Baillie, II, 262.
Note.—In working out examples, follow the rules given in the notes appended to ill. (f) and ill.
(l) to §66.
Note.—By Hanafi law, the brother would have taken the residue one-third.
Note.—By Hanafi law, the father would have taken the residue one-sixth as a Residuary.
Baillie, II, 335-336.
Note.—If there was a full sister instead of a consanguine sister, the uterine sister would have been
excluded from participating in the Return. (see §109 below)
End of Document
§ 107. Husband and wife and “Return”
Mulla
§ 107. Husband and wife and “Return”
Neither the husband nor the wife is entitled to the Return if there is any other heir. If the deceased left a
husband but no other heir, the surplus will pass to the husband by Return. If the deceased left a wife, but
no other heir, the older view was that the wife will take her share one-fourth, and the surplus will escheat
to the Crown; in other words, that the surplus never reverts to a wife. But in Abdul Hamid Khan v Peare
Mirza9 the Oudh Court followed the opinion of Ameer Ali (Mahomedan Law, vol II, 5th Edn, at p 1254)
and held that the rule now in force is that the widow is entitled to take by return.
Baillie, II, p. 262. See §92 and the notes thereto.
Note.—By Hanafi law, the residue one-twelve would go to the father as a Residuary.
Note.—By Hanafi law, the residue one-twelve would go to the father as a Residuary.
9 Abdul Hamid Khan v Peare Mirza, (1935) 10 Luck 550 : 1531 IC 379 : AIR 1935 Oudh 78.
End of Document
§ 108. Mother when excluded from “Return”
Mulla
§ 108. Mother when excluded from “Return”
If the deceased left a mother, a father, and one daughter, and also —
(a) two or more full or consanguine brothers, or

(b) one such brother and two such sisters, or
(c) four such sisters,
the brothers and sisters, though themselves excluded from inheritance as being heirs of the second class,
prevent the mother from participating in the Return, and the surplus reverts to the father and the daughter
in the proportion of their respective shares. This is the only case in which the mother is excluded from the
Return.
Baillie, II, 272, 317-318, 365, 386.
End of Document
§ 109. Uterine brothers and sisters when excluded from “Return”
Mulla
§ 109. Uterine brothers and sisters when excluded from “Return”
If there are uterine brothers or sisters, and also full sisters, the uterine brothers and sisters are not entitled
to participate in the Return, and the residue goes entirely to the full sisters. This rule does not apply to
consanguine sisters. Consanguine sisters and uterine brothers and sisters divide the Return in proportion to
their shares.
Baillie, II, 335-336.
Note.—The wife in case (c) is not entitled to the “Return” as there are other heirs of the deceased (section
107). The uterine sister is excluded from the “Return” by the full sister, and the latter takes the whole
“Return.”
(1) Consanguine sister
There is a conflict of opinion whether a consanguine sister is entitled to the whole “Return” in the absence
of a full sister. The author of the Sharaya-ul-Islam is of opinion that she is not. The author of the Kafi is of
opinion that she is. (see §106, illustration (c))
End of Document
§ 110. Doctrine of “Increase”
Mulla
The Sunni doctrine of Increase is not recognized in the Shia law. According to the Shia law, if the sum
total of the shares exceeds unity, the fraction in excess of the unity is deducted invariably from the share
of:—
(a) the daughter or daughters; or

(b) full or consanguine sister or sisters.
Baillie, II, 263, 396.
Note.—Here the excess over unity is one-twelve, and this is to be deducted from the daughter’s share
(1) Reason of the rule
The reason of the rule laid down in this section is stated to be that since a full sister, whether co-existing
with uterines, gets the full benefit of the “Return” (§106), it is but fair that when the sum total of the
shares exceeds unity, she should bear the deficit. But what then of the consanguine sister? According to
the Sharaya-ul-Islam, a consanguine sister is not entitled to the whole “Return” when she co-exists with
uterines. Why then should she bear the deficit?
End of Document
Page 2 of 2
§ 111. Escheat
Mulla
§ 111. Escheat
On failure of all natural heirs, the estate of a deceased Shia Mahomedan escheats to the Government.10
Baillie, II, 301, 362-363. (see §92)
10 Mussammat Khursaidi v Secretary of State, (1926) 5 Pat. 539 : 94 IC 433 : AIR 1926 Pat. 321.
End of Document
§ 112. Eldest son
Mulla
VIII SHIA LAW OF INHERITANCE > MISCELLANEOUS
MISCELLANEOUS
§ 112. Eldest son
The eldest son, if of sound mind, is exclusively entitled to the wearing apparel of the father, and to his
Koran, sword and ring, provided the deceased has left property besides those articles.
Baillie, II, 279.
End of Document
§ 113. Childless widow
Mulla
MISCELLANEOUS
§ 113. Childless widow
A childless widow takes no share in her husband’s lands, but she is entitled to her one-fourth share 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.
Baillie, II, 295; Mir Alii v Sajuda Begum;11 Umardaraz Ali Khan v Wilayat Ali Khan;12 Muzaffar Ali v
Parbati;13 Aga Mahomed Jaffer v Koolsom Beebee;14Durga Das v Nawab Ali Khan;15 Syed Ali v Syed
Muhammad.16
The expression “lands” in this section is not confined to agricultural land only, it includes lands forming
the site of a building.17 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”.18
11 Mir Alii v Sajuda Begum, (1897) 21 Mad. 27.

12 Umardaraz Ali Khan v Wilayat Ali Khan, [1897] 19 All. 169.
13 Muzaffar Ali v Parbati, (1907) 29 All. 640 : A.W.N. (1907) 221: 4 All LJ 501.
14 Aga Mahomed Jaffer v Koolsom Beebee, (1897) 25 Cal. 9 PC : 24 IA 196
15 Durga Das v Nawab Ali Khan, (1926) 48 All. 557 : 95 IC 19 : AIR 1926 All. 522.
16 Syed Ali v Syed Muhammad, (1928) 7 Pat. 426 : 116 IC 525 : AIR 1928 Pat. 441.
17 Aga Mahomed Jaffer v Koolsom Beebee, (1897) 25 Cal. 9 PC
18 Abdul Hamid Khan v Peare Mirza, (1935) 10 Luck 550 : 153 IC 379 : AIR 1935 Oudh 78.
End of Document
§ 114. Illegitimate child
Mulla
MISCELLANEOUS
§ 114. Illegitimate child
An illegitimate child does not inherit at all, not even from his mother or her relations, nor do they inherit
from him.
Baillie, II, 305; Sahebzadee Begum v Himmut Bahadur.19
19 Sahebzadee Begum v Himmut Bahadur, (1869) 12 W.R. 512, S.C. on review (1870) 14.
End of Document
§ 51. Heritable property
Mulla
VI INHERITANCE—GENERAL RULES
CHAPTER VI INHERITANCE—GENERAL RULES
There is no distinction in the Mahomedan law of inheritance between movable and immovable property or
between ancestral and self-acquired property.
There is no such thing as a joint Mahomedan family nor does the law recognize a tenancy in common in a
Mahomedan family.1 In a Mahomedan family there is a presumption that the cash and household furniture
belong to the husband.2
In Sahul Hamid v. Sulthan it was held per Rajmannar J (as he then was):
The Mahomedan Law does not recognise a joint family as a legal entity. In fact according to the rules of Mahomedan Law of
Succession, heirship does not necessarily go with membership of the family. There are several males and females who have no interest
in the heritage but may be members of the family. On the other hand there are several heirs like, for example, married daughters of a
deceased male owner who take an interest in the estate but are no part of the family.3
However, if a custom of the family establishing joint holding as is common among Hindus is proved, it
will be given effect. Additions to the joint estate by the managing member of a Mahomedan family will be
presumed to have been made from the joint estate and will be for the benefit of all the members. But
acquisition of property not attributable to the family assets will not be for the family.
But, if all the members of the family live in commensality and are in joint possession of family properties,
it will be for the person claiming property as his own to show that the source of the property was his own.4
The personal law of Muslims does not recognise a system of joint holding as is common amongst Hindus.
There may be cases, however, where a custom may be set up in the matter of the holding of such
properties by some of the members of a Muslim family, whereby it could be established that such
possession and title in some of the members is customarily to be interpreted and understood as possession
on behalf of all the members.
Acquisition of property independently by a member cannot automatically be said to be for the benefit of
the family. If there is conclusive evidence that a member of the Muslim family, who acquired such
properties gained an advantage to himself and caused prejudice to others and if such acquisition is
traceable to surplus family assets or funds from and out of which the property could have been purchased,
then matters would be different. Again it is also necessary to prove that the members were living jointly
and enjoying the property jointly and in common.5
In Mohd. Ismail v. Khadirsa Rowther,6 it was stated that where some of the members of the Muslim joint
family who were in possession of certain property made subsequent acquisitions, additional acquisitions
would belong to all the members of the joint family in view of section 90 unless and until it is proved that
the subsequent acquisitions were made by members in possession out of their independent income. In this
view there is no necessity for other co-owners whatever to show that the income from the family
properties yielded a surplus so as to enable the co-owners in possession to purchase the subsequent
additional property.
Renunciation or relinquishment need not be expressly stated in the document. It can be inferred from the
conduct of the parties. If a suit for partition in a Mohamedan family is brought after 12 years and the
plaintiff fails to explain his or her inaction, renunciation can be inferred. If renunciation is pleaded in the
document and renunciation is accepted by the parties in that case, he or she must be estopped from
claiming partition, as it is a part of family arrangement. Strictly speaking such renunciation will not forbid
him/her from claiming partition, but in order to maintain harmony and peace in the family, renunciation
should be treated as estoppel to the party concerned.
1 See Abdul Rashid v Sirajuddin, (1933) 145 IC 461 : AIR 1933 All 206, 209.
2 Ma Khatun v Ma Bibi, AIR 1933 Rang 393 : 149 IC 654.
3 Sahul Hamid v Sulthan, AIR 1947 Mad. 287 : (1947) 1MLJ 20. See also Maimoona Bivi v DA Khaja Mohinuddin,, AIR 1970 Mad.
200 [LNIND 1969 MAD 57].
4 Mohammed Ibrahim v Syed Muhammad Abbubakkar, AIR 1976 Mad. 84 [LNIND 1975 MAD 418]: (1976) 2 Mad LJ 478.
5 Ibid.
6 Mohd. Ismail v Khadirsa Rowther, AIR (1983) Mad. 123 [LNIND 1982 MAD 76]: 1982-95-LW 609.
End of Document
Page 2 of 2
§ 52. Birth-right not recognised
Mulla
§ 52. Birth-right not recognised
The right of an heir-apparent or presumptive comes into existence for the first time on the death of the
ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an
heir if he survived the ancestor.7
A, who has a son B makes a gift of his property to C. B, alleging that the gift was procured by undue
influence, sues C in A’s lifetime on the strength of his right to succeed: to A’s property on A’s death. The
suit must be dismissed for B has no cause of action against C. B has no cause of action, for he is not
entitled to any interest in A’s property during A’s lifetime.8 But the gift would be liable to be set aside if
the suit was brought after A’s death, provided it was brought within the period of limitation.9
Such a right as that claimed by B in the above illustration is a mere spes successions, that is, an
expectation or hope of succeeding to A’s property if B survived A.10 The Mahomedan law “does not
recognize any... interest expectant on the death of another, and till that death occurs which by force of that
law gives birth to the right as heir in the person entitled to it according to the rules of succession, he
possesses no right at all.”11
7 Abdul Wahid v Nuran Bibi, (1885) 11 Cal 597 ; 12 IA 91; Humeeda v Budlum, (1872) 17 W.R. 525; Hasan Ali v Nazo, (1889) 11
All. 456, 458; Abdool v Goolam, (1905) 30 Bom. 304.
8 Hasan Ali v Nazo, (1889) 11 All. 456, 458.
9 Kurrutulain v Nuzhat-ud-dowla, (1905) 33 Cal 116 : 32 IA 244.
10 Abdool v Goolam, (1905) 30 Bom. 304.
11 Hasan Ali v Nazo, (1889) 11 All. 456, 458.
End of Document
§ 53 Principle of representation
Mulla
§ 53 Principle of representation
According to the Sunni Law the expectant right of an heir-apparent cannot pass by succession to his heir,
nor can it pass by bequest to a legatee under his will.12 According to the Shia law, it does pass by
succession in the cases specified in §93 below.
A, a Sunni Mahomedan, has two sons, B and C, B dies in the lifetime of A, leaving a son D. A then dies
leaving C, his son, and D, his grandson. The whole of A’s property will pass to C to the entire exclusion of
D. It is not open to D to contend that he is entitled to B’s share as representing B.13
In the case cited above, their Lordships of the Privy Council observed: “It is a well-known principle of
Mahomedan law that if any of the children of a man die before the opening of the succession to his estate,
leaving children behind, these grand-children are entirely excluded from the inheritance by their uncles
and their aunts.” The son of a predeceased son is therefore not an heir.14
If in the above case, B bequeathed any portion of his expectant share in A’s property to X, the latter would
take nothing under the Will. “A mere possibility such as the expectant right of an heir-apparent, is not
regarded as present or vested interest, and cannot pass by succession, bequest or transfer so long as the
right has not actually come into existence by the death of the present owner.”15
12 Abdul Wahid v Nuran Bibi, (1885) 11 Cal 597, 607 : 12 IA 91. Macnaghten, p 1, section 9.
13 Moola Cassim v Moolla Abdul, (1905) 33 Cal 173 : 32 IA 177.
14 Abdul Bari v Nasir Ahmed, AIR 1933 Oudh 142 : 150 IC 330.
15 Abdul Wahid v Nurun Bibi, (1885) 11 Cal 597 : 12 IA 91.
End of Document
§ 54. Transfer of spes succession is: Renunciation of chance of succession
Mulla
The chance of a Mahomedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer
or release.16
Illustrations
A has a son B and a daughter C. A pays Rs. 1,000 to C, and obtains from her a writing whereby in
consideration of Rs. 1,000 received by her from A, she renounces her right to inherit A’s property. A then
dies, and C sues B for her share (one-third) of the property left by A. B sets up in defence the release
passed by C to her father. The release is no defence to the suit, and C is entitled to her share of the
inheritance, as the transfer by her was a transfer merely of a spes successionis, and as such, inoperative.
But C is bound to bring into account the amount received by her from her father.17
The rule of Mahomedan law that a heir cannot renounce his right to inherit is not different from the law
under the Transfer of Property Act, 1882, section 6(a). That section provides that “the chance of an heir-
apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or
any other mere possibility of a like nature, cannot be transferred.”
It has been held by the Allahabad and Travancore-Cochin High Courts that a Mahomedan heir may by his
conduct be estopped from claiming the inheritance he has agreed to relinquish if the release was part of a
compromise or family settlement and if he has benefited by the transaction.18 But this view has been
expressly dissented from by the Madras and Kerala High Courts on the ground that not only can such a
view not be justified in Mahomedan Law, but is also contrary to section 6(a) of the Transfer of Property
Act and section 23 of the Contract Act.19
The conflict between the Madras and Kerala view on the one hand and the Allahabad and Travancore
view on the other was resolved by approving the Allahabad view. It was observed, “... a bare renunciation
of an expectation to inherit cannot bind the expectant heir’s conduct in the future. But if the expectant heir
goes further and receives consideration and so conducts himself as to mislead an owner into not making
dispositions of his property, inter vivos, the expectant heir should be debarred from setting up his right
when it does unquestionably vest in him. In other words the principle of estoppel remains untouched by
this statement.”
The questions that arose were:
(1) A mere expectancy to succeed cannot be subject of transfer and such a transfer is void;
(2) Can such an expectancy be removed after receiving consideration?
(3) Will such a conduct create an estoppel in the future?
(4) Can a right be renounced even before it was vested?
These questions may now be taken to have been settled. Gulam Abbas v Haji Kayyam Ali.20
A husband gives immovable property to his wife in lieu of her dower, and agrees not to claim any share of
it as her heir on her death. Is the agreement valid and binding on the husband? The High Court of
Allahabad has held that it is binding on the husband.21
16 Khanum Jan v Jan Beebee, (1827) 4. Beng. S.D.A. 210; Sumsuddin v Abdul Husein, (1906) 31 Bom. 165; Asa Beevi v Karuppan,
(1918) 41 Mad. 365 : 46 IC 35, dissenting from Kunhi v Kunhi, (1896) 19 Mad. 176. See also Hurmut-ool-Nissa Begum v Allahdia
Khan, (1871) 17 W.R. 108 (P.C.); Sulaiman Sahib v Kader Ibrahim, (1952) 2 Mad LJ 104 : AIR 1953 Mad 161 [LNIND 1952 MAD
220].
17 Sumsuddin v Abdul Hussein, (1906) 31 Bom. 165 : 1906(8) Bom LR 781; Banoo Begum v Mir Abed Ali, (1908) 32 Bom. 172, pp
174-175 : 1907(9) Bom LR 1152 [LNIND 1907 BOM 163].
18 Latafat Husain v Hidayet Husain, (1936) All LJ 342 : 161 IC 851 : AIR 1936 All 573; Kochunni Kochu v Kunju Pillai, AIR 1956
Travancore- Cochin 217.
19 Abdul Kaffor v Abdul Razak, AIR 1959 Mad. 131 [LNIND 1958 MAD 44]: (1958) 2 MLJ 492 [LNIND 1958 MAD 44]; Kunhi
Avulla v Kunhi Avulla, AIR 1964 Ker. 201.
20 Gulam Abbas v Haji Kayyam Ali, AIR 1973 SC 554 [LNIND 1972 SC 442].
21 Nasir-ul-Haq v Faiyaz-ul-Rahman, (1911) 33 All : 457, 9 IC 530.
End of Document
Page 2 of 2
§ 55. Life-estate and vested remainder
Mulla
(1) Sunni Law.—The Judicial Committee in Humeeda v Budlun,22 observed that “the creation of (such) a
life estate does not seem to be consistent with Mahomedan usage and there ought to be very clear proof of
so unusual a transaction”; and in Abdul Gafur v Nizamuddin23 referred to “life-rents” as a kind of estate
which does not appear to be known to Mahomedan law”. The difficulty arises out of the Mahomedan law
of gift and does not appear to extend beyond cases of pure hiba whether inter vivos or by will. As
explained in Chapter XI (cf. section 164 below), if a gift be made subject to a condition which derogates
from the grant, the condition is void, e.g., a partial restraint on alienation; but a condition which does not
affect the corpus of the thing given is not within the rule, e.g. when there is a reservation of income to the
donor or a gift of usufruct to another donee. In the Hedaya (489) the principle is applied to amrees (gift
for life). The Prophet approved or amrees but held the condition annexed to them by the grantor to be
void. “... the meaning of amree moreover is nothing but a gift and a condition; and the condition is invalid
but a gift is not rendered null by involving an invalid condition”. Accordingly it was held in certain cases
that a gift for life operates as an absolute gift.24
The assumption underlying this doctrine however is that what is given is the corporeal thing itself; and as
the refusal to permit gifts of life interests produces serious inconvenience and gives rise to some
unprofitable distinctions, the assumption has not gone without challenge. Can it not be held that what is
given is not (e.g.) the land but an interest therein; and that this is given unconditionally there being no
intention to make a gift of the corpus? In Nawazish Ali Khan v Ali Raza Khan25 which was a Shia case the
Privy Council stated that there was no difference between the several schools of Muslim law in their
fundamental conception of property and ownership. A limited interest takes effect out of the usufruct
under any of the schools. The duty of the Court is to construe the gift. If “it is a gift of the corpus,” their
Lordships said, “then any condition which derogates from absolute dominion over the subject of the gift
will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the
gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent
to which its enjoyment is postponed for the duration of the limited interest”.
In Amjad Khan v Ashraf Khan,26 this question was raised in an acute form. The deed described the
transaction as a gift without consideration. It recited that the donee and the heirs of the donor had
consented. By it the donor gave to his wife his entire property as to one-third with power to alienate and
“as to the rest she shall not possess any power of alienation but she shall remain in possession thereof for
her lifetime. After the death of the donee the entire property gifted away by this document shall revert to
the donor’s collaterals.” On the question whether the interest given in the one-third was an absolute
interest or was only a life interest plus a power to alienate, the Judicial Committee took the latter view.
Their Lordships decided the case by asking, as matter of construction of the deed, what was the subject
matter of the gift? Was it merely a life interest in the property together with a power of alienation over
one-third thereof? Or was it an absolute interest in the property coupled with an inconsistent condition?
Holding on the construction of the deed that the subject-matter of the gift was a life interest only (together
with the power of alienation as to one-third) they dismissed the appeal of the donee’s heir; the gift of a
life-estate was not given the effect of an absolute estate. On the argument that a life-estate could not be
created by gift inter vivos their Lordships expressed no opinion, holding that, if right, it would only mean
that the donee took nothing by the gift—a result which would carry no benefit to her heir.
It is not possible to read this decision as proceeding upon the ground that the case was not one of hiba
pure and simple. It is direct authority against regarding a life interest as enlarged by the doctrine which
invalidates a condition restrictive of a gift and the decision to that effect abovenoted27 must be treated as
overruled by it. Subsequent decisions have so interpreted the Board’s judgment.28
Both as regards life-estates and remainders there is considerable uncertainty as to the consequences of this
decision. It does not decide that in Sunni law a life interest can be validly created by way of gift, but the
doubt hitherto cast upon the matter has had reference to the validity of the limit in cases of gift. The
validity of the grant was very old authority: the Hedaya discloses the tradition that the Prophet approved
of amrees just as he disapproved of rikba (e.g., if I die before you then this house is yours). A life interest
is not illegal: admittedly a Mahomedan can create such an interest by contract.
The Calcutta, Bombay, Nagpur and Travancore-Cochin High Courts have held that a gift of a life interest
is valid.29 The Chief Court of Oudh has held that the bequest of a life interest by will is valid.30 In
Nawazish Ali Khan v Ali Raza Khan3131 although a Shia case, the Privy Council has made observations
which are sufficiently ample to cover Sunni cases. The effect of the decision is that a life estate as known
to English law cannot be created by hiba whether inter vivos or by will. The question is always one of
construction. In a case of gift to A for life and thereafter to B, the courts will presumably construe the gift
as a gift of the corpus to B absolutely and of the usufruct of A for life. The gift, however, to A for life
would be constructed as a gift of a interest to A, and the corpus would vest in the heirs.
It remains to consider whether under Sunni law a gift of a life-estate to A with remainder to B is a good
gift to B and whether it amounts to a vested remainder so as to take effect even if B dies before A. By
English law in such a case B takes a vested interest and can dispose of his interest by transfer inter vivos
or by will. On his death intestate his interest will pass to his heirs even if he predeceases A. In Abdul
Wahid Khan v Mt. Nuran Bibi,32 [illustration (a)] the Judicial Committee held that such an interest as a
vested remainder did not seem to be recognized by Mahomedan law, and this case has been accepted as an
authority for the proposition that the remainder man cannot take unless he survives the tenant for life.33
The case of Umes Chunder Sircar v Mt. Zahoor Fatima34 [illustration (b)] cannot be regarded as
invalidating this conclusion since the point was not taken and the principles of Mahomedan law do not
appear to have been discussed. The facts of the case sufficiently account for the omission, but they do not
enable the case to be distinguished from Abdul Wahid Khan v. Nuran Bibi in point of law; neither was a
case of hiba pure and simple.
In Abdul Wahid Khan’s case the principle applied was as follows: “The arrangement contained in the
compromise would be called by the Mahomedan lawyers ‘a tauris’ or ‘making some stranger and heir’
and cannot be regarded as creating a present or vested interest”.35
Page 2 of 7
The above authorities must now be read subject to the Privy Council decision in Nawazish Ali Khan v Ali
Raza Khan.36 Although this was, as stated above, a Shia case, the observations made apply to all schools
of Muslim law. Referring to the expression “life estate” and “vested remainder” their Lordships stated as
follows:—”In their Lordships’ opinion this view of the matter introduces into Muslim law legal terms and
conceptions of ownership, familiar enough in English law, but wholly alien to Muslim law. In general,
Muslim law draws no distinction between real and personal property, and their Lordships know of no
authoritative work on Muslim law, whether the Hedaya, or Baillie or more modern works, and no decision
of this Board which affirms that Muslim law recognises the splitting up of ownership of land into estates,
distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee
simple, in tail, for life, or in remainder. What Muslim law does recognise and insists upon, is the
distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over
the corpus of property the law recognises only absolute dominion, heritable, and unrestricted in point of
time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion
the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct
of the property, and the dominion over the corpus takes effect subject to any such limited interests.... This
distinction runs through all the Muslim law of gifts—gifts of the corpus (hiba), gifts of the usufruct
(ariyat) and usufructuary bequests. No doubt where the use of a house is given to a man for his life he
may, not inaptly, be termed a tenant for life, and the owner of the house, waiting to enjoy it until the
termination of the limited interest, may be said, not inaccurately, to possess a vested remainder. But
though the same terms may be used in English and Muslim law, to describe much the same things, the two
systems of law are based on quite different conceptions of ownership. English law recognises ownership
of land limited in duration; Muslim law admits only ownership unlimited in duration, but recognises
interests of limited duration in the use of property … Their Lordships think that there is no difference
between the several schools of Muslim law in their fundamental conception of property and ownership. A
limited interest takes effect out of the usufruct under any of the schools. Their Lordships feel no doubt
that in dealing with a gift under Muslim law, the first duty of the court is to construe the gift. If it is a gift
of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will
be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can
take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to
which its enjoyment is postponed for the duration of the limited interest.”
Family settlement.—A life-estate may be created by an agreement in the nature of a family settlement,
whether such agreement is preceded by litigation or not, but “the creation of such a life-estate does not
seem to be consistent with Mahomedan usage, and there ought to be very clear proof of so unusual a
transaction”.37 Such an agreement is from its very nature a transaction for a consideration, and it must be
distinguished from a pure hiba or gift mentioned in sub-sec. (1) above.38
Hiba-bil iwaz.—The rule stated in sub-section (1) above does not apply to a hiba-bil-iwaz. As to hiba-bil-
iwaz. (see §168 below)
Shia law.—It was at one time thought that the Shia law allowed the creation of a life-estate and a vested
remainder, as held by Jenkins, CJ, and Heaton, J, in Banoo Begum’s case [illustration (f)]. In two other
cases however Beaman, J., expressed the opinion that the Arabic texts there relied upon did not support
the conclusion reached, and observed that an estate for life and a vested remainder were known to the Shia
law as much as to the Sunni law.39 In Nawazish Ali Khan v Ali Raza Khan,40 the Privy Council took the
view that a life-estate as known in English law is alien to Mahomedan law but if on the construction of a
hiba, the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the
Page 3 of 7
ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the
duration of the limited interest.
(5) Wakf.—Both under the Sunni and the Shia law life-estates may be created by wakf. (see §197)
Illustrations
(a) One of two persons claiming to be the sons of Mouzzam Khan, a Sunni, sued Gauhar Bibi, his widow,
who was in possession of the suit lands in Oudh under a Kabuliyat and in pursuance of a summary
settlement made by Government in 1858. The plaintiff claimed that Mouzzam Khan had made the estate
over to him and his brother. The suit was compromised in terms contained in two petitions to the Court,
namely, that the widow should during her life time continue as before to possess and be mistress of the
Talooka, but should not alienate so as to deprive the plaintiff of his right and that after her death the
plaintiff and his brother should possess and enjoy it, “should become successors to and proprietors of the
said talooka”. The widow survived both. Held, that neither of them acquired any such right as would
under Mahomedan law to form the subject of inheritance. “Their Lordships think this is the reasonable
construction of the compromise in this case, and that it would be opposed to Mahomedan law to hold that
it created a vested interest as in Abdul Rahman and Abdul Subhan which passed to their heirs on their
death in the life time of Gauhar Bibi.” Also “to give the plaintiffs a title to the estate it must be a vested
interest which, on the death of the sons, passed to their heirs and is similar to a vested remainder under the
English law. Such an interest in an estate does not seem to be recognized by the Mahomedan law.”41
(b) By a deed of settlement in 1871 a Sunni leased lands to his second wife, Amani Begum at a fixed rent
of one rupee on condition that if she had a child by him the grant should be taken as a perpetual
mokurruri: if no such child was born then it was only to be a life mokurruri and after her death the
property was to go to the two sons of the settlor, Farzund and Farhut. Appellant and respondent both
claimed to have taken title to one half of the property as purchasers of Farzund’s right, title and interest at
execution sales. Appellant’s sale was in 1879 and respondent’s in 1881. At the time of appellants’
attachment the settlor, his wife and sons were all alive but before the sale in 1897 the settlor had died. At
all material times the widow and Farzund were alive (both were respondents to the Privy Council appeal;
the latter died pending the hearing thereof in 1887). It could not have been contended at the trial in 1883
or in the High Court in 1885, and it was not contended in the Privy Council that the gift to Farzund had
failed. Both auction purchasers had the same title save that (a) the appellant was first in time, (b) his
attachment had been in the settlor’s life-time. Respondent’s argument concentrated on (b), that during the
settlor’s life the birth of a child to him was a contingency: this contingency no longer remained in 1881.
This is the only argument dealt with in the judgment on this part of the case; it was held on the
construction of the deed of 1871 that the wife’s estate was enlarged and the sons’ interest defeated on The
birth of a child: not that the son’s interest failed to arise until either husband or wife had died. As
presented to the Judicial Committee by the rival auction purchasers the case raised no point of
Mahomedan law. The contention advanced in Rasoolbibi v Usuf Ajam,42 for the appellant with reference
to this case cannot be accepted. There were two elements of contingency (a) the birth of a child, and (b)
the widow surviving Farzund. The former was relied on by the respondent: neither sought to profit by the
latter.43
(C) A Sunni lady, Bai Aishabai, by her Will left two properties to her daughter, Hafizabibi, for life
without power of alienation and after her death to Ajam (testatrix’s step-son) and his descendants as
absolute owners. Aishabai died in 1897. Hafizabibi enjoyed the properties till her death in 1926. Ajam
died in 1919. The plaintiff was a daughter of Ajam suing for administration of his estate. Held, that in the
Page 4 of 7
events which had happened Ajam took no interest under the Will. Held further by Mirza, J, and
Beaumont, CJ, (Rangnekar J, dissenting) that Hafizabibi did not take an absolute estate.44
(d) One Nasiruddin, a Sunni, died having by his Will left three villages to his wife, Mariambi, and
declared that after the death of Mariambi, Abdul Kadar should become the owner thereof. Abdul Kadar
died in 1899 and Mariambi in 1904. The plaintiff was a daughter of Abdul Kadar and the defendants were
her mother and sister. If an absolute interest was created in favour of Mariambi the plaintiffs suit failed: if
on her death the property went to Abdu| Kadar’s heirs the plaintiff was entitled to a seven annas share
thereof subject to a question whether Abdul Kadar had validly made a gift to his wife in lieu of dower.
Held on reference to a Bench that Mariambi took a life-estate only. Thereafter the appeal was disposed of
on the footing that Abdul Kadar’s heirs took the reversionary interest.45
(e) By a deed of settlement the plaintiffs mother conveyed two properties to a trustee upon trust to pay
taxes and repairs; and out of the net rents and profits to pay to the settlor during her life such moneys as
she should require and the balance as therein directed: on the settlor’s death, the net rents of one property
were to be paid to the plaintiff: on the death of the survivor of the settlor and the plaintiff, the property
was to be held in trust for the plaintiffs son or sons and in default of sons for her daughters, with a gift
over in the event of the plaintiff dying without issue. Held that assuming that the gift to the plaintiff was
of a life interest in the property it did not by Sunni law confer an absolute estate upon her.46
(f) It was provided by a consent decree in a suit to which the parties were Shia Mahomedans that a certain
house should be held and enjoyed by A for her life, and that after her death it should be sold and the sale
proceeds divided among her step-sons. It was held that, A took a life interest in the house, and the step-
sons took a definite interest like what is called in English law a vested remainder.47 The question whether
a vested remainder is recognized by the Shia law was raised in Muhammad Raza v Abbas Bandi Bibi,48
but it was not decided as the document to be construed in that case was a compromise of a suit, and
therefore one for a consideration.
(g) A Shia Mahomedan by his Will purported to give an estate for life to A and thereafter to B for life,
with a power to nominate his successor. It was held that A and B took a life interest and that the power of
appointment was invalid under Mahomedan law. A and B had a life-interest in the usufruct and the
testator’s heirs were the owners of the property. Their Lordslnips said: “No doubt where the use of a
house is given in a man for his life he may, not inaptly, be termed a tenant for life and the owner of the
house, waiting to enjoy it until the termination of the limited interest, may be said, not inaccurately to
possess a vested remainder. But though the same terms may be used in English and Muslim law, to
describe much the same things, the two systems of law are based on quite different conceptions of
ownerships. English law recognises ownership of land limited in duration; Muslim law admits only
ownership unlimited in duration but recognises interests of limited duration in the use of property.”49
(h) A makes a bequest in favour of B of certain land and provides that B shall have no right to transfer the
property, but his male issue shall have the right to transfer the property. It was held that the corpus and not
merely the usufruct was bequeathed to B and the condition that he should not transfer the property was
void. B therefore took an absolute estate.50
(i) A Sunni Mahomedan settled property in favour of certain persons reserving a usufruct for himself for
life, it was held that the deed of settlement was valid and the question whether the settlor reserved to
himself a life-interest did not arise.51
(j) A Sunni Mahomedan made a settlement in the following terms, “I have settled upon you (my wife) for
Page 5 of 7
your maintenance the undermentioned Nanja land worth Rs. 2,000. Therefore this is a settlement deed
executed by me consenting that you should enjoy for your life time the income alone from the said nanja
land, that you should not make any gift, sale or hypothecation etc. of the said land, that if you should
hereafter have issue by me, the said issue should enjoy the said land hereditarily, and that if you should
not have such issue the said property after your life time shall go to me and to my heirs.” It was held that
only the usufruct was given to the wife.52
22 Humeeda v Budlun, (1872) 17 W.R. 525.

23 Abdul Gafur v Nizamuddin, (1892) 19 IA 170 : 17 Bom 1.
24 Nizamuddin v Abdul Gufur, (1888) 13 Bom. 264; Abdoola v Mahomed, (1948) 75 IA 62 : AIR 1948 PC 134 : (1905) 7 Bom LR
306.
25 Nawazish Ali Khan v Ali Raza Khan, (1948) 75 IA 62, AIR 1948 PC 134.
26 Amjad Khan v Ashraf Khan, (1929) 56 IA 213 : 4 Luck 305 : 116 IC 405 : AIR 1929 PC 149 affirming (1925) 87 IC 445 : AIR
1925 Oudh 568.
27 Nizamudin v Abdul Gufur, (1888) 13 Bom. 264; Abdoola v Mahomed, (1905) 7 Bom LR 306 : (1948) 75 IA 62.
28 Abdul Khaleque v Bepin Behari, AIR 1936 Cal 456; Bai Saroobai v Hussein Somji, (1936) 38 Bom LR 903 : 165 IC 34 : AIR 1936
Bom 330; Mt. Subhanbi v Mt. Umraobi, (1936) 161 IC 719 : AIR 1936 Ngp 113, dissenting from Abdul v Abdul, (1929) 131 IC 35 :
AIR 1929 Ngp 313; Nawazish Ali Khan v Ali Raza Khan, (1948) 75 IA 62 : AIR 1948 PC 134.
29 Bai Saroobai v Hissein Somji, (1936) 38 Bom LR 903 : 165 IC 34 : AIR 1936 Bom 330; Mt. Subhanbi v Mt. Umraobi, (1936) 161
IC 719 : AIR 1936 Ngp 113; Achiruddin Ahmad v Sakina Bewa, (1946) 50 Cal WN 59 : 222 IC 585 : AIR 1946 Cal 288; Maitheen
Bivi Umma v Ithappiri Varkey, (1956) Trav-C.292 (56) A. Trav.-C 268 : 1956 Ker LT 444; Anjumanara Begum v Nawab Asif
Kadar, (1955) 2 Cal. 109.
30 Naziruddin v Khariat Ali, (1938) 172 IC 384 : AIR 1938 Oudh 51.
31 Nawazish Ali Khan v Ali Raza Khan, (1948) 75 IA 62 : AIR 1948 PC 134.
32 Abdul Wahid Khan v Mt. Nuran Bibi, (1885) 12 IA 91 : 11 Cal 597.
33 Abdul Karim Khan v Abdul Qayum Khan, (1906) 28 All. 342; Harpal Singh v Lekraj Kunwar, (1908) 30 All. 406, 420; Abdool
Hoosein v Goolam Hosain, (1905) 30 Bom. 304, 317 : 7 Bom LR 742; Rasoolbibi v Usuf Ajam, (1933) 57 Bom. 737 : 148 IC 82 :
AIR 1933 Bom 324.
34 Umes Chunder Sircar v Mt. Zahoor Fatima, (1890) L.R. 17 IA 201.
35 Abdul Wahid Khan’s case, 12 IA91: (1885) L.R. 12 IA 91.
37 Humeeda v Budlun, (1872) 17 W.R. 525.
38 Umjad Ally Khan v Mohumdee Begum, (1867) 11 Moo Ind App 517 at 548; Khwajeh Solehman v Nawab Sir Salimullah, (1922) 49
IA 153. 49 Cal 820 : 69 IC 138 : AIR 1922 PC 107; Jagdish Narain v Bande Ali Mian, (1939) 20 P.L.T. 328 : 183 IC 467 : AIR
1939 Pat. 406.
39 Jainabai v Sethna, (1901) 34 Bom. 604, pp 612-3 : 6 IC 513; Cassamally v Currimbhoy, (1911) 36 Bom. 214, 253-4 : 12 IC 225.
41 Abdul Wahid Khan v Mt Nuran Bibi, (1885) 12 IA 91, 102, 100 : 11 Cal 597.
42 Rasoolbibi v Usuf Ajam, (1933) 57 Bom. 737 at 766 : 148 IC 82 : AIR 1933 Bom 324.
43 Umes Chunder Sircar v Zahoor Fatima, (1890) 17 IA 201.
44 Rasoolbibi v Usuf Ajam, (1933) 57 Bom. 737 : 148 IC 82 : AIR 1933 Bom 324.
45 Mt. Subhanbi v Mt. Umraobi, (1936) 161 IC 719 : AIR 1936 Ngp 113.
46 Bai Saroobai v Hussein Somji, (1936) 38 Bom LR 903 : 165 IC 34 : AIR 1936 Bom 330.
47 Banoo Begum v Mir Abed Ali, 1907 (9) BomLR 1152 [LNIND 1907 BOM 163]; Siraj Hussin v Mushaf Hussin, (1921) 21 O.C. 321:
49 IC 58.
48 Muhammad Raza v Abbas Bandi Bibi, (1932) 59 IA 236 : 7 Luck. 257 : 137 IC 321: AIR 1932 PC 158.
Page 6 of 7
50 Siddiq Ahmed v Wilayat Ahmed, AIR 1952 All 1 [LNIND 1951 ALL 175].
51 Mohamed v Kairum, AIR 1954 Mad. 769 [LNIND 1953 MAD 278]. See also Shaikh Khatun Bibi v Mohd. Zahina Bi, (1956) An.
W.R. 771 [LNIND 1956 AP 27]; Khadija Beevi v Maria Ummal, AIR 1958 Ker. 264 [LNIND 1957 KER 202]: 1958 Ker LJ 80; Sk.
Kabir v Narayandas, (1954) Cut. 513 : AIR 1955 Ori. 24; Krishnamurthy Setty v Adbul Khader, AIR 1956 Mys. 14.
52 Nagoor Ammal v M.K. Meeran, AIR 1954 Mad. 770 [LNIND 1953 MAD 102].
End of Document
Page 7 of 7
§ 56. Vested inheritance
Mulla
§ 56. Vested inheritance
A “vested inheritance” is the share which vests in an heir at the moment of the ancestor’s death. If the heir
dies before distribution, the share of the inheritance which has vested in him will pass to such persons as
are his heirs at the time of his death. The shares therefore are to be determined at each death.53 (see §41
above)
[A dies leaving a son B, and a daughter C. B dies before the estate of A is distributed leaving a son D. In
this case, on the death of A, two-thirds of the inheritance vests in B, and one-third vests in C. On
distribution of A’s estate, after B’s death the two-thirds which vested in B must be allotted to his son D.]54
53 Mst. Jawai v Hussain Baksh, (1922) 3 Lah. 80 : 67 IC 154 : AIR 1922 Lah. 298.
54 See Macnaghten, “Principles and Precedents”, p 27, section 96; Rumsey’s Mahomedan Law of Inheritance, ch. ix; Rumsey’s Al
Sirajiyyah, pp 43-44.
End of Document
§ 57. Joint family and joint family business
Mulla
(1) When the members of a Mahomedan family live in commensality, they do not form a joint family in
the sense in which that expression is used in the Hindu Law.55 Further, in the Mahomedan law, there is
not, as in the Hindu law, any presumption that the acquisitions of the several members of a family living
and messing together are for the benefit of the family.56 But if during the continuance of the family
properties are acquired in the name of the managing member of the family, and it is proved that they are
possessed by all the members jointly, the presumption is that they are the properties of the family, and not
the separate properties of the member in whose name they stand.57
(2) If after the death of a Mahomedan his adult sons continue their father’s business, and retain his assets
in the business, they will be deemed to stand in a fiduciary relation to the other heirs of the deceased, and
liable to account as such for the profit made by them in the business.58 If after the death of the sons, the
business is continued by their sons or by other heirs, they also will be liable to account on the same
footing.59
(3) Members of a Mahomedan family carrying on business jointly do not constitute a joint family firm in
the sense in which that expression is used in the Hindu law so as to attract the legal incidents of such a
firm.60 Sons assisting a father in business are presumably his agents and not his partners, unless an
agreement of partnership is proved.61 A minor may be entitled to a benefit in the business, but this will not
make him liable on a mortgage executed by him along with his adult brothers in the course of the business
carried on by the latter. The managers of such a business in a Mahomedan family have no right to impose-
any liability on the minor members of the family.62
There is no provision of Mahomedan Law recognising a joint family. In Andhra Pradesh Muslim families
live together and do business together. Such business may be carried on for the benefit of the family
including minors and females. Such arrangements have been upheld by Courts. In such a case the adult
member or members stand in a fiduciary capacity and the Trust Act is applicable. When the co-owner dies
his heirs take his place.63
The burden of establishing that a property held by a member in Mahomedan family is his self-acquired
property would arise only if the property is held commonly by the other members of the family and the
entire family lives in commensality possessing the family property in common.64
As the theory of representation is unknown to Mahomedan law, and as there is no presumption that
acquisition of one or more of the properties of the family are to be presumed to be for the benefit of the
family. Unless there is proof to the contrary and as children in a Mahomedan family are not co-owners in
the sense that what is purchased by one person enures for the benefit of another.65
55 Hakim Khan v Gool Khan, (1882) 8 Cal. 826; Suddurtonnessa v Majada Khatoon, (1878) 3 Cal 694 : 2 CLR 308; Abdool Adood v
Mahomed Makmil, (1884) 10 Cal. 562 : 8 Ind. Jur. 564; Abdul Khader v Chidambaram, (1908) 32 Mad. 276 : 3 Ind Cas 876; Abdul
Samad v Bibijan, (1925) 49 Mad LJ 675 : 91 IC 618 : AIR 1925 Mad. 1149 [LNIND 1925 MAD 87]; Abdul Rashid v Sirajuddin,
(1933) 145 IC 461: AIR 1933 All. 206; Sahul Hamid v Sulthan, (1947) 1 Mad LJ 20 : AIR 1947 Mad. 287.
56 Abdul Kadar v Bapubhai, (1898) 23 Bom. 188; Mohamad Amin v Hasan, (1906) 31 Bom. 143 : 9 Bom LR 65; Mohideen Bee v
Syed Meer, (1915) 38 Mad. 1099, 1101 : 32 IC 1102. See also Isap Ahmed v Abramji, (1917) 41 Bom. 588, pp 612-613 : 41 IC 761;
Safir Mohd. v Bashir Mohd, AIR 1961 Ori. 92; Md. Zafir v Amiruddin, AIR 1963 AP 108.
57 Aminaddin v Tajjadin, (1932) 59 Cal. 541 : 138 IC 761 : AIR 1932 Cal 538; Mst. Bibi Fatma v Aftab Ahmed, AIR 1963 AP 128.
58 Soudagar v Soudagar, (1931) 54 Mad. 543 : 135 IC 357 : AIR 1931 Mad. 553 [LNIND 1930 MAD 211]; Darga Abdul Rawoof
Sahib v Quresha Bi Saheba, (1959) 2 An. W.R. 557.
59 Shukrull v Mt. Zuhra, (1932) 54 All. 916 : 143 IC 230 : AIR 1932 All. 512.
60 See Solema Bibi v Hafez Mohammad, (1927) 54 Cal. 687 : 104 IC 833 : AIR 1927 Cal 836; Darga Abdul Rawoof Sahib v Quresha
Bi Saheba, (1959) 2 An. W.R. 557.
61 Tarachand v Mohideen, (1935) 37 Bom LR 654 : 158 IC 701 : AIR 1935 Bom 401.
62 Ahmed Ibrahim Saheb v Meyyappa Chettiar, (1939) Mad WN 976 : (1940) Mad. 285 : AIR 1940 Mad. 285, [Abdul Rahim v Abdul
Hakim, AIR 1931 Mad. 553 [LNIND 1930 MAD 211]: (1931) 61 Mad LJ 139 : (1931) 54 Mad. 543, explained.]
63 D. Raja Ahmed v Pacha Bi, (1969) 1 An. W.R. 255.
64 Mohammed Ibrahim v Syed Muhammad Abbubakker, AIR 1976 Mad. 84 [LNIND 1975 MAD 418]: (1976) 2 Mad LJ 478.
65 Maimoon Bivi v Khajee Mohideen, AIR 1970 Mad. 200 [LNIND 1969 MAD 57]: 1969-82-LW 632; Mohammed Ibrahim v Syed
Muhammad Abbubakker, AIR 1976 Mad. 84 [LNIND 1975 MAD 418]: (1976) 2 Mad LJ 478.
End of Document
Page 2 of 2
§ 58. Homicide
Mulla
§ 58. Homicide
(1) Under the Sunni law, a person who has caused the death of another, whether intentionally, or by
mistake, negligence, or accident, is debarred from succeeding to the estate of that other.
Homicide under the Shia law is not a bar to succession unless the death was caused intentionally.
Rumsey’s Al Sirajiyyah, 14; Bailie, 266, 369.
Impediments to inheritance
The Sirajiyyah sets out four grounds of exclusion from inheritance, namely (1) Homicide, (2) slavery, (3)
difference of religion, and (4) difference of allegiance. Homicide, as an impediment to succession, is dealt
with in the present section. The second impediment was removed by the enactment of Act V of 1843
abolishing slavery,66 and the third by the provisions of Act XXI of 1850 which abolished so much of any
law or usage as affected any right of inheritance of any person by reason of his renouncing his religion.
The bar of difference of allegiance disappeared with the subversion of the Mahomedan supremacy.
A person incapable of inheriting by reason of any of the above disqualifications is considered as not
existing, and the estate is divided accordingly. According to the Sirajiyyah he does not exclude others
from inheritance (Sir. 22-28). Thus if A dies leaving a son B, a grandson C by B, and a brother D and if B
has caused the death of A, B is totally excluded from inheritance, but he does not exclude his son C. The
inheritance will devolve as if B were dead, so that C, the grandson, will succeed to the whole estate, D
being a remote heir. In the undermentioned case, a single Judge of the Lahore High Court, has expressed
the view that the rule of public policy would exclude a murderer and his descendants from succession.67
66 Ujmudin Khan v Zia-ul-Nissa, (1879) 6 IA 137 : 3 Bom. 422.

67 Khan Gul Khan v Karam Nishan, AIR 1940 All. 172.
End of Document
§ 59. Exclusion of daughters from inheritance by custom or by statute
Mulla
§ 59. Exclusion of daughters from inheritance by custom or by statute
Where daughters are excluded from inheritance either by custom68 or by statute,69 they should be treated
as non-existent, and the shares of the other heirs should be calculated as they would be in default of
daughters.
There is no custom that daughter can inherit her father’s property only as Khananishia daughter or not at
all—Such custom has to be pleaded and proved by cogent evidence.70
(1) Watan Act, 1886 (Bombay)
If a Mahomedan watandar dies leaving a widow, a daughter, and a paternal uncle, the daughter is not
entitled under the Act to any interest in the watan lands, she being postponed in the order of succession.
The lands are divisible between the widow and the paternal uncle as if the daughter were non-existent so
that the widow will take 1/4, and the uncle the residue, 3/4. The widow will take only a life-interest in her
share. If the daughter were not excluded, she would have taken 1/2, the widow 1/8, and the uncle the
residue, 3/8. The rule of Mahomedan law stated in the ill. to §63 does not apply to such case.
(2) Custom in Kashmir
Among the Gujars and Bakkerwals of Nunar the custom is that daughters do not inherit even if they
remain at home. In default of agnates only, they can succeed to the property. Agnates mean grandfather’s
descendants in the male line. 71
68 Muhammad Kamil v Imtiaz Fatima, (1908) 36 IA 210 : 31 All. 557 : 4. IC 457.

69 Aminabi v Abasaheb, (1931) 55 Bom. 401 : 132 IC 892 : AIR 1931 Bom 266.
70 Mst. Khatji v Mst. Mukhti, AIR 1963 J&K 4, Foll.) Ghulam Hassan v Mst. Saja, AIR 1984 J&K 26.
71 Aziz Dar v Mst. Fazli, AIR 1960 J&K 53.
End of Document
§ 60. Taluqdars of Oudh
Mulla
§ 60. Taluqdars of Oudh
A special rule of succession by primogeniture is enacted for the taluqdars of Oudh by the Oudh Estates
Act I of 1869 and the Oudh Estates Amendment Act III of 1910. Succession is to the nearest male agnate
according to the rules of lineal primogeniture. A daughter’s son is not a male agnate and is therefore not
entitled to succeed.72 As the Oudh Estates Act has laid down specific rules for devolution of taluqdari
property and has in this respect displaced the Mahomedan law, such property should not be taken into
consideration in determining the bequeathable one-third share of the entire assests of a Mahomedan
testator.73
72 Adbul Latif Khan v Mt. Abadi Begum, (1934) 61 I.A. 322 : 9 Luck 421 : 150 IC 810 : AIR 1934 PC 188.
73 Mohammad Zia-Ullah v Rafiq Mohammad, (1939) O.W.N. 581 : 182 IC.190 : AIR 1939 Oudh 213.
End of Document

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Mulla, Inheritance

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CHAPTER VII HANAFI LAW OF INHERITANCE

Mulla Principls of Mahomedan Law, 22nd ed

CHAPTER VII HANAFI LAW OF INHERITANCE

CHAPTER VII HANAFI LAW OF INHERITANCE

A.—THREE CLASSES OF HEIRS

§ 61. Classes of heirs

CHAPTER VII HANAFI LAW OF INHERITANCE

A.—THREE CLASSES OF HEIRS

CHAPTER VII HANAFI LAW OF INHERITANCE

TRUE GRANDFATHER AND TRUE GRANDMOTHER

Table of Shares—Sunni Law

(c) A Mahomedan can have as many as four wives at a time.

DAUGHTERS AND SON’S DAUGHTERS h.l.s.

CHAPTER VII HANAFI LAW OF INHERITANCE

§ 64. Increase (Aul.)

First Step –allot the shares to each sharer.

Third Step-substitute the denominator by the total sum of the numerators.

7 Fatawa-e-Alamgiri, vol 10, Urdu Translation by Amir Ali, p 424.

CHAPTER VII HANAFI LAW OF INHERITANCE

The Holy Quran declares:

The Sahih-al-Bukhari provides:—

Abu Daud mentions:

No. 1.—Sons and Daughters

Note.—The residue after payment of the widow’s share is seven eight.

No. 2—Son’s Sons h.l.s and Son’s Daughters h.l.s.

No. 4—True Grandfather h.h.s.

Nos. 5&7—Brothers and Sisters

Full brother16 .. .. Two third (as residuary)

Full sister .. .. one-third (as residuary)

Con. Sister .. .. .. (excluded by full brother)

No. 6—Full Sisters with Daughters and Son’s Daughters

No. 8—Consanguine Sisters with Daughters and Son’s Daughters.h.l.s.

(1) Classification of Residuaries

classes proceeds upon the same basis.

(2) Residuaries that are primarily Sharers

(3) Female residuaries

(4) Principles of succession among Sharers and Residuaries

Primary heirs Child Father Mother

Substitutes Child of a son h.l.s. Tr. G.F. Tr. G.M.

The right of succession of the substitutes is governed by the following rules:—

CHAPTER VII HANAFI LAW OF INHERITANCE

§ 66. Return (Radd)

(1) Residuaries for special cause

(2) Husband and wife

A person capable of inheriting in two capacities is entitled to inherit in both capacities.29

(3) “Return” distinguished from “Increase”

(4) Father and true grandfather

(5) Father and Daughter

CHAPTER VII HANAFI LAW OF INHERITANCE

§ 67. Distant Kindred

CHAPTER VII HANAFI LAW OF INHERITANCE

§ 68. Four Classes

I. Descendants of the deceased:—

1. Daughter’s children and their descendants.

II. Ascendants of the deceased:—

1. False grandfathers h.h.s.

III. Descendants of parents:—

1. Full brothers’ daughters and their descendants.

6. Sisters’ (f., c, or ut.) children and their descendants.

IV. Descendants of immediate grandparents (true or false):—