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Inheritance is the entry of living persons into possession
of dead persons' property and exists in some form wherever the
institution of private property is recognised as the basis of
the social and economic system. The actual forms of
inheritance and the laws governing it, however, differ
according to the ideals of different societies.
The law of inheritance in Islam is based upon five main
considerations:
To break up the concentration of wealth in individuals and
spread it out in society.
To respect the property right of ownership of an individual
earned through honest means.
To hammer in the consciousness of man the fact that man is
not the absolute master of wealth he produces but he is its
trustee and is not, therefore, authorised to pass it on to
others as he likes.
To consolidate the family system which is the social unit
of an Islamic society.
To give incentive to work and encourage economic activity
as sanctioned by Islam.
In the pre-Islamic world and even in modern societies the
law of inheritance has so many evils in it, which may be
summed up in the following points:
Women had been completely denied the share of inheritance.
They were rather regarded as part of the property of the
deceased and, therefore, their right to property by
inheritance was out of question.
In pre-Islamic Arabia and other countries where there had
been tribal societies not only women were deprived of the
right of inheritance but even weak and sick persons and minor
children were given no share in it, as the common principle of
inheritance was that he alone is entitled to inherit who
wields the sword.
Then in certain societies there had been existing the law
of primogeniture and it exists even today in some of the
so-called civilised parts of the world which entitles only the
eldest son to inherit the whole of the father's property or to
get the lion's share.
Islam introduced so many reforms in the laws of inheritance
which can be succinctly summed up as follows.
It defined and determined in clear-cut terms the share of
each inheritor and imposed limits on the right of the
property-owner to dispose of his property according to his
whim and caprice.
It made the female, who had been prevously thought a
chattel, the co-sharer with the male and thus not only
restored her dignity, but safeguarded her social and economic
rights.
It laid the rules for the break-up of the concentrated
wealth in the society and helped in its proper and equitable
distribution amongst a large number of persons.
It gave a death-blow to the law of primogeniture and thus
provided the democratic basis for the division of the property
of the deceased.
The above are some of the distinguishing features of the
Islamic law of inheritance. While laying down the rules for
the distribution of the estate of the deceased, the first
principle to be observed is that the property both movable and
immovable can be distributed after meeting the following
obligations:
funeral expenses;
clearing off the debts incurred by the deceased;
payment of bequest, if any, to the extent of one-third of
the total assets. It may be remembered that the Mahr of the
wife, if it had not been paid, is included in the debt.
Moreover, it is not lawful to make a bequest in favour of a
person who is entitled to a share in the inheritance.
Four persons cannot get inheritance:
(a) a fugitive slave who has fled away from his master,
(b) one who has murdered one's predecessor intentionally or
unintentionaly
(c) one who professes a religion other than Islam,
(d) one living in Dar-ul-Harb cannot inherit the property
of one living in Dar-ul-Islam and vice versa.
According to Islam, the heirs have been divided into three
classes.
(A) Dhaw-u'l-Fara'id are those persons who have a right to
definite shares in assets left by the deceased. These sharers
are twelve in number; four males: father, grandfather, uterine
brothers and husband; and eight females: wife, single
daughter, son's daughter, mother, grandmother, full sister,
consanguine sister, uterine sister.
Father's share is one-sixth when the deceased leaves a son
or a son's son, but if the deceased is not survived by a son
or grandson his father will, in addition to this share
(one-sixth), also get a share of being 'Asaba.
The grandfather's share is like that of father's share but
in three conditions:
According to Imam Bukhiri and Imam Muslim, the presence of
father deprives even the brothers of their share in the
inheritance. but this is not the case with the grandfather.
Imam Abu Hanifa is of the opinion that the presence of
grandfather deprives the brother of his share in the
inheritance.
If the father of the deceased is alive, then the share of
the mother is of what is left from the share of the wife of
the deceased. The presence of grandfather does not reduce the
share of the mother of the deceased.
The grandmother of the deceased has no share in the
presence of the father of the deceased but she has a share in
the presence of the grandfather.
The third set of sharers are uterine brothers and sisters.
They are entitled to one-sixth if their number is one, and
one-third if they are more than one.
The husband's share is one-half of the property of the
deceased wife if she has no children, but in case of children
it is one-fourth.
The wife is entitled to one-fourth if the husband dies
childless; otherwise it is one-eighth.
Real daughter: one-half when alone, and two-thirds if more
than one. If the deceased is survived by a male child also.
the daughters are then treated as Asaba and the male child
would get double of what falls to the lot of daughters. The
granddaughters stand on the same level as daughters. But in
case the deceased is survived by one real daughter and one or
more than one granddaughter they would get one-sixth. The
granddaughter is not entitled to any share if the deceased is
survived by a son, but if he is survived by grandsons and
granddaughters, they would be treated as 'Asaba and the male
grandchild would get double of what goes to the female
grandchild.
Full sister gets one-half if she is alone, and two-thirds
if they are more than one.
Consanguine sister is entitled to one-half if one, and two
thirds if more.
Mother is entitled to one-sixth when she has a child or
grandchild, and in case of being childless she gets one-third
of the share.
If the deceased is survived either by paternal grandmother
or maternal grand- mother or even by both, they are entitled
to one-sixth. The grandmother (maternal) is deprived of her
share if the mother of the deceased is alive; and if father is
alive the paternal grandmother is deprived of this share.
(B) When the heirs of the first group have received the
respective shares, the residue of the assets falls to the
share of those relatives who are called Asaba which, according
to the Shari'ah, implies those relatives in whose line of
relationship no female enters. This is the second group of
inheritors.
There is no fixed share of the 'Asabat. If the deceased is
not survived by any Dhaw-u'l-Fara'id, the whole of the
property falls to their share; and If Dhaw-u'I. Fara'id are
there to get their due share, the residue will be taken by the
Asabat. The following are the 'Asabat:
Son: He is the first to get the residue in order of
succession. The daughters are entitled to half of the share as
given to the son. The grandsons are not entitled to any share
in the presence of the son. If the son is not living, then the
grandson is entitled to a share in the inheritance. If there
are more than one son, the inheritance will be distributed
equally amongst them.
The father, grandfather and the great-grandfather are
included in the category of Dhaw-u'l-Fara'id. If, however, the
deceased is not survived by category of a son, grandson of
great-grandson, then the father will fall under the category
of 'Asaba, and, in the absence of the father, the grandfather
assumes that position.
If the deceased is not survived by son, or grandson or
father or grandfather, i. e. none amongst the 'Asabat, then
the brother, and in the absence of brother his son, and in the
absence of son, his grandson will be entitled to share in the
inheritance as 'Asaba and the female would also join them in
share claiming half of the share as compared with male.
If unfortunately the deceased is survived by none of the
above-mentioned relatives amongst the 'Asabat, then
consanguine brother will be entitled to share in the
inheritance and he will be preferred to full brother's son.
Then comes the turn of full paternal uncle.
(C) The last category of inheritors are known ad Dhaw-u'l
Arham, i. e. relations connected through females, but it is in
extremely rare cases that they get any share in the
inheritance. The following relatives come under this category.
The son of the daughter and daughter of the daughter.
The son of the daughter of the son, and daughter of the
daughter of the son and their children.
Maternal grandfather, maternal grandfather of the father,
the grandfather of the mother, maternal grandfather of the
mother, the grandmother of the mother, the children of the
sisters, the sisters of the father and those of the mother,
etc.
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