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    INTRODUCTION

    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 recognized 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.

    First is to break up the concentration of wealth in individuals and spread it

    out in society. Secondly, it is to respect the property right of ownership of

    an individual earned through honest means. It also considers hammering 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, authorized to

    pass it on to others as he likes. It also aims to consolidate the family

    system which is the social unit of an Islamic society and to give incentive to

    work and encourage economic activity as sanctioned by Islam.

    Prior to Islam, and within the Arabian Peninsula, the system of inheritance

    was confined to male descendants. Women not only did not have any

    share of inheritance, but they themselves were inheritable too. Siblings

    from the mother's side, like half-brothers or half-sisters, were completely

    excluded. Other Semitic cultures also practiced primogeniture, under which

    all property went to the eldest male child.

    TheQur'an introduced a number of different rights and restrictions on

    matters of inheritance, including general improvements to the treatment of

    women and family life. The Qur'an also presented efforts to fix the laws of

    inheritance, and thus forming a complete legal system. This development

    was in contrast to pre-Islamic societies where rules of inheritance varied

    http://en.wikipedia.org/wiki/Qur%27anhttp://en.wikipedia.org/wiki/Qur%27an
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    considerably. Furthermore, the Qur'an introduced additional heirs that were

    not entitled inheritance in pre-Islamic times, mentioning nine relatives

    specifically of which six were female and three were male. The laws of

    inheritance in the Qur'an also included other male relatives, like the

    husband and half-brothers from the mothers side, which were excludedfrom inheritance in old customs. In general, the Qur'an improved the status

    of women by identifying their share of inheritance in clear terms. It also

    completely forbade the practice of inheriting widows. Joseph

    Schacht states that "this is not meant as a regular legal ordinance, but is

    part of the Qur'anic endeavor to improve the position of women. The

    Qur'an does not explicitly mention the shares of male relatives, such as

    thedecedent's son, but provides the rule that the son's share must be twice

    that of the daughter's. Muslim theologians explain this aspect of inheritance

    by looking atIslamic law in its entirety, which bestows the responsibility and

    accountability on men to provide safety, protection and sustenance to

    women.

    In addition to the above changes, the Qur'an grantstestamentary powers to

    Muslims in disposing their property, in their will, called waeyya; Muslims

    are allowed to give out a maximum of one third of their property. Muslims

    are also encouraged to give money to the orphans and poor if they arepresent during the division of property.

    http://en.wikipedia.org/wiki/Decedenthttp://en.wikipedia.org/wiki/Shariahttp://en.wikipedia.org/wiki/Testamentaryhttp://en.wikipedia.org/wiki/Testamentaryhttp://en.wikipedia.org/wiki/Shariahttp://en.wikipedia.org/wiki/Decedent
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    RECENT DEVELOPMENTS

    The Qur'an contains only three verses which give specific details ofinheritance and shares, in addition to few verses dealing with testamentary

    power. It has also been reported in Hadith that Muhammad allotted great

    importance to the laws of inheritance and ordered his followers to learn and

    teach them. Muslim jurists used these verses as a starting point to expound

    the laws of inheritance even further using Hadith, as well as methods of

    juristic reasoning, like Qiyas. In later periods, large volumes of work have

    been written on the subject.

    This amalgamation of old agnatic customs and Islamic Law led to a number

    of problems and controversies that Muslim jurists have solved with great

    ingenuity. Through the use of deductive reasoning, Muslim jurists added

    three additional heirs: the paternal grandfather, maternal grandmother, and

    agnatic granddaughter. These heirs, if entitled to inherit, are given their

    fixed shares and the remaining estate is inherited by the Residuaries. In

    some cases, they have also upheld the rule of men having twice the share

    of women in circumstances not readily mentioned in the Qur'an, and triedto deal with complex cases in a variety of different contexts.

    This led to some minor differences between jurisprudence schools of the

    Sunni maddhabs. Also, the laws of inheritance for Twelver Shia, despite

    being based on the same principles, differ in a number of features due to

    the rejection of certain accounts of Hadith and based on their

    understanding of certain events in early Islam. On the other hand, the

    system of inheritance of the Kharajite Ibadis and Zaidis closely resemblethat of the Sunni system. In modern Muslim countries, usually a mixture of

    different schools of jurisprudence (including Shia) is in effect, in addition to

    a number of important reforms to the traditional system. The main

    achievements of such modern systems were the codification of inheritance

    laws.

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    All the modern writers have admired the Muslim system of inheritance for

    its utility and formal excellence. Muslim law of inheritance is based on the

    rules laid down in Quran or through the customs and usage prevalent

    among the Arabs. In the pre-Islamic world the law of inheritance had so

    many evils in it. Women had been completely denied the share ofinheritance. 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 existed

    the law of primogeniture and it exists even today in some of the so-called

    civilized 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 for the

    betterment of Muslim lives equally. It defined and determined in clear-cut

    terms for 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 previously thought a chattel, theco-sharer with the male and thus not only restored her dignity, but

    safeguarded her social and economic rights. Husband and wife have been

    made heirs. Parents and ascendants are given rights even when there is a

    male descendent. 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.

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    GENERAL RULES TO INHERITANCE

    WITH EXCLUSIONS

    Inheritance is considered as an integral part of Muslim Law and its

    application in Islamic society is a mandatory. Muslims inherit from one

    another as stated in the Quran. Hence, there is a legal share for relatives

    of the descendents in his estate and property. The major rules of

    inheritance are detailed in Quran and Hadith.

    Following are the major rules of the Muslim law of Inheritance:-

    1. When a Muslim dies there are four duties which need to be

    performed, viz. Paying funeral and burial expenses, paying off the

    debts, execute the testamentary will of the deceased (which can only

    be a maximum of one third of the property), and distribute the

    remainder of estate and property to the relatives of the deceased

    according to Shariah Law. After such expenses, remaining property

    is considered for distribution. Such property includes movable as well

    as immovable properties. There is no distinction between Ancestral

    property and Self-acquired property.

    2. There is no right of inheritance gained by mere birth. Such right will

    be a mere chance of survivorship and the property share. Illegitimate

    person does not inherit from father or son. Similarly, child of a

    divorcee inherits from his mother and not from father. Such child also

    will be treated on the same footing of illegitimate person.

    3. The allotted share of the property will be allotted immediately after the

    death of the ancestor.4. In case of death of heir on whom the share of property is already

    vested, such share shall be passed on to his/her heir. However, if the

    ancestor (also called as propositus) is alive and any of his

    presumptive heirs die, then the share of such deceased heir will not

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    be passed on to his / her heirs. It would be still the property of the

    ancestor / propositus, who is alive.

    5. Missing heirs will be given their respective shares if they reappear at

    the time of such distribution, or else, they would be considered dead.

    6. A child in a womb is deemed to be born on the date of conceptionand if born alive, such child will get share or otherwise such share

    will be distributed among others.

    There are exclusions to the rule of inheritance. It is called as rule oftotal and partial exclusion. Every person is entitled to inherit underMuslim Law, unless there is something to exclude him. There are two

    major exclusions, viz. Partial (also known as imperfect) exclusions andTotal (also known as perfect) exclusions. In Islamic law, only relativeswith a legitimate blood relationship to the deceased are entitled toinherit. Thus, illegitimate children and adopted children have no sharesin inheritance. In general, a full brother will excludea consanguine brother, but not uterine brother. In case where adeceased man leaves a pregnant woman, the unborn child's share willbe reserved. Also a woman during the time of waiting (iddat)after divorce is considered as a wife of the deceased for purposes ofinheritance. There are even further rules of exclusion and inclusion ofdifferent relatives. The only "practical situations" which may causedisqualification are differences of religion and homicide. But schools ofIslamic jurisprudence differed whether a Muslim can inherit from a non-Muslim or not. All the jurists agree that intentional or unjustifiable killingwould exclude a person form inheritance. Four persons cannot getinheritance:-

    A fugitive slave who has fled away from his master, One who has murdered ones predecessor intentionally or un-

    intentionally, One who professes a religion other than Islam, One living in Dar-ul-Harb cannot inherit the property of one living in

    Dar-ul-Islam, and vice versa.

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    TYPES OF HEIRS

    AND

    THEIR RESPECTIVE SHARES

    The first step in the distribution of the estate of a deceasedMohammedan after payment of his mentioned expenses is to allot therespective shares to such of the relations as belong to the classes ofheirs. Hanifa Jurists have divided heirs into 7classes; 3 Principle and 4Subsidiary Classes. In principle classes, there are Quranic heirs (alsocalled Sharers), Agnatic heirs and uterine heirs. Subsidiary heirs are

    Successor by contract, Acknowledged Kinsman, Sole legatee and thestate. There are 5 primary heirs viz, Husband or wife, son, daughter,father and mother.According to Islam, the heirs have been divided intothree classes.

    1. Dhaw-u'l-Fara'id:-

    This category is also known as Sharers. These are those persons

    who have a right to definite shares in assets left by the deceased.These sharers are twelve in number, including 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 ason's son, but if the deceased is not survived by a son or grandsonhis father will, in addition to this share (one-sixth), also get a share ofbeing 'Asaba.

    The grandfather's share is like that of father's share but in threeconditions:-According to Imam Bukhiri and Imam Muslim, thepresence of father deprives even the brothers of their share in theinheritance. But this is not the case with the grandfather. Imam AbuHanifa is of the opinion that the presence of grandfather deprives thebrother of his share in the inheritance.

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    If the father of the deceased is alive, then the share of the mother isof what is left from the share of the wife of the deceased. Thepresence of grandfather does not reduce the share of the mother ofthe deceased. The grandmother of the deceased has no share in thepresence of the father of the deceased but she has a share in the

    presence of the grandfather.

    The third set of sharers is uterine brothers and sisters. They areentitled to one-sixth if their number is one, and one-third if they aremore than one.

    The husband's share is one-half of the property of the deceased wifeif she has no children, but in case of children it is one-fourth. The wifeis entitled to one-fourth if the husband dies childless; otherwise it isone-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 arethen treated as Asaba and the male child would get double of whatfalls to the lot of daughters. The granddaughters stand on the samelevel as daughters. But in case the deceased is survived by one realdaughter and one or more than one granddaughter they would getone-sixth. The granddaughter is not entitled to any share if thedeceased is survived by a son, but if he is survived by grandsons and

    granddaughters, they would be treated as 'Asaba and the malegrandchild 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 morethan one. Consanguine sister is entitled to one-half if one, and twothirds 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 thedeceased is survived either by paternal grandmother or maternalgrand- mother or even by both, they are entitled to one-sixth. The

    grandmother (maternal) is deprived of her share if the mother of thedeceased is alive; and if father is alive the paternal grandmother isdeprived of this share.

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    2. Asabat:-

    This category is also known as Residuaries. When the heirs of thefirst group have received the respective shares, the residue of theassets falls to the share of those relatives who are called Asaba

    which, according to the Shari'ah, implies those relatives in whose lineof relationship no female enters. This is the second group ofinheritors.

    There is no fixed share of the 'Asabat. If the deceased is not survivedby 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 residuewill be taken by the Asabat.

    Son is the first asabat to get the residue in order of succession. Thedaughters are entitled to half of the share as given to the son. Thegrandsons are not entitled to any share in the presence of the son. Ifthe son is not living, then the grandson is entitled to gain share in theinheritance. If there is more than one son, the inheritance will bedistributed equally amongst them.

    The father, grandfather and the great-grandfather are included in thecategory of Dhaw-u'l-Fara'id. If, however, the deceased is notsurvived by category of a son, grandson of great-grandson, then the

    father will fall under the category of 'Asaba, and, in the absence of thefather, the grandfather assumes that position.

    If the deceased is not survived by son, or grandson or father orgrandfather, i.e. none amongst the 'Asabat, then the brother, and inthe absence of brother his son, and in the absence of son, hisgrandson will be entitled to share in the inheritance as 'Asaba and thefemale would also join them in share claiming half of the share ascompared with male.

    If unfortunately the deceased is survived by none of the above-mentioned relatives amongst the 'Asabat, then consanguine brotherwill be entitled to share in the inheritance and he will be preferred tofull brother's son. Then it comes the turn of full paternal uncle.

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    3. Dhaw-ul-Arham:-

    The last category of inheritors is known as Distant-Kindred, i.e.relations connected through blood who are neither sharers norResiduaries, like relations connected through females, but it is in

    extremely rare cases that they get any share in the inheritance. Thefollowing 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, thegrandmother of the mother, the children of the sisters, the sistersof the father and those of the mother, etc.

    SHARES OF HEIRS

    Heir

    Share

    Conditions Exclusion

    One Two or more

    Husband

    1/4 NAWhen there is

    a child orsons child

    NA

    1/2 NAWhen there is

    no child orsons child

    NA

    Wife

    1/8 1/8When there is

    a child orsons child

    NA

    1/4 NAWhen no

    child or sonschild

    NA

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    Father

    1/6 NAWhen there isson or sons

    sonNA

    1/6 plus residue

    When thereare one ormore

    daughters,sons

    daughtersand there isno son norsons son

    Father is asharer andresiduary

    Residue When there isno child orsons child

    Absence ofany child

    TrueGrandfather

    1/6 NA

    When there isa child or

    sons childand no fatheror nearer truegrandfather

    Excluded byfather or

    nearer truegrandfather

    1/6 plus residue

    When thereare

    Daughters oronly sonsdaughters

    NA

    Residue

    When there isa Wife or

    husband andfather

    Converted byfather

    Mother 1/6 NA

    When there isa child or

    sons child ortwo or morebrothers orsisters or

    NA

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    brother orsister and

    father

    1/3 NA

    When there is

    no child, norsons child

    and not morethan one

    brother andsister

    NA

    1/3 plus residue

    When there isa wife or

    husband and

    father

    Converted byfather

    MaternalGrand Mother(How high so

    ever)

    1/6 NA

    When nomother or no

    nearerPaternal

    grandmother

    Mother,Paternal TrueGrandmother

    PaternalGrand Mother(How High So

    ever)

    1/6 NA

    When nomother or no

    nearerMaternal or

    Paternalgrandmotheror father, ornearer truegrandfather

    Mother,

    Maternal orPaternal

    grandmotheror father or

    truegrandfather

    Daughter

    2/3When there is

    no sonNA

    ResidueConverted byson or two or

    more sons

    Sons 1/2 2/3When there is

    no son orExcluded byson or sons

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    Daughter sons son orone or moredaughters orhigher sons

    daughter

    son of highergrade, or two

    or moredaughters ortwo or more

    sonsdaughters ofhigher grade,

    or onedaughter withtwo or more

    sonsdaughters orhigher grade

    1/6 NA

    When there isno son or

    sons son orone or moredaughters or

    higher sonsdaughter

    Excluded byson or sonsson of highergrade, or two

    or moredaughters ortwo or more

    sonsdaughters of

    higher grade,or onedaughter withtwo or more

    sonsdaughters orhigher grade

    Residue

    Converted bysons son of

    equal or evenlower grade

    Full Sister 1/2 2/3

    When nochild or sonschild or father

    or brother

    Excluded bySon or sonsso, father or

    true

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    grandfather,daughter or

    sonsdaughter

    Residue

    Converteddue to fullbrother or

    daughters orsons

    daughters, fullsisters

    ConsanguineSister

    2/3

    When nochild or Sonschild ( How

    Low So ever),or father or

    brother or fullsister

    Excluded by

    Son, Father,or True

    Grandfather,or full brotheror full sister

    1/6 NA

    When one full

    sister only

    Excluded byone or moredaughters or

    sons

    daughters orby two ormore fullsisters

    Residue

    Converted into Residuary

    byconsanguine

    brother

    UterineBrother

    1/3

    Excluded bySon or SonsSon, father or

    truegrandfather or

    daughter or

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    sonsdaughter

    Uterine Sister 1/6 NA

    when no childor (How Low

    So ever)sons child

    Excluded bySon or SonsSon, father or

    truegrandfather or

    daughter orsons

    daughter

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    DOCTRINE OF AUL

    It means the doctrine of decrease. In certain circumstances of allotment ofshare, it may be followed that the total of the share exceeds unity. Then thefraction allotted to each heir will have to be reduced ratably. This doctrinerefers to the process of reducing the share proportionately.

    This doctrine is recognized by Hanifa law and not by Shia Law.

    DOCTRINE OF RADD

    It means the doctrine of return. In some circumstances, the total of thefractions may be less than unity. There may not be any heir belonging tothe residuary to take the residue. In such cases, the residue is returned tothe sharer in proportion to their share. This is called Doctrine of Radd.

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    WOMEN AND INHERITANCE

    In Islam, women are entitled the right of Inheritance. In generalcircumstances, though not all, Islam allots women half the share of

    inheritance available to men who have the same degree of relation to

    the decedent. For example: - where the decedent has both male and

    female children, a son's share is double that of a daughter's. Additionally,

    the sister of a childless man inherits half of his property upon his death,

    while a brother of a childless woman inherits all of her property. However,

    this principle is not universally applicable, and there are other

    circumstances where women might receive equal shares to men. For

    example:-the share of the mother and father of a childless decedent. Also

    the share of a uterine brother is equal to the share of a uterine sister, as do

    the shares of their descendants.

    Sometimes woman gets double share then share of man, for example if

    there are only parents and husband, husband will receive half, father gets

    1/6 and mother gets 2/6. Also the Qur'an does not discriminate between

    men and women in cases of kalalah relation.Kalalahdescribes a person

    who leaves behind neither parents nor children; it also means all the

    relatives of a deceased except his parents and children, and it also denotes

    the relationships which are not through [the deceaseds] parents or

    children. Islamic scholars hold that the original reason for these differences

    is the responsibilities allotted to spouses. A husband in Islam must use his

    inheritance to support his family while a wife has no support obligations.

    Additionally, Arab society traditionally practiced the custom of bride

    price or dower rather than dowry; i.e., the man paid a gift to his wife or her

    family upon marriage, rather than the opposite, placing a financial burdenon men where none existed on women. This custom received Islamic

    sanction.

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    DISTINCTION BETWEEN

    SUNNI AND SHIA LAW OF INHERITANCE

    Sr.

    No.SUNNI LAW SHIA LAW

    1.Priority of agnates over

    cognates.Deny any priority to agnates

    over cognates.

    2.

    Give importance and preference

    to full blood over half blood. Treat all equally.

    3.Give importance to the decisionsof the three Caliphs-Abu Bakr,

    Umar and Usman.

    Disregard the details of Sunnisystem which rests on the

    decisions of the three Caliphs-Abu Bakr, Umar and Usman.

    4.Interpret Quran strictly, keeping

    rules intact.

    Interpret Quran as altering theold principles themselves and

    giving rise to new set of

    principles.

    5. Preference to male over female. Both are on equal footing.

    6.Follow strict classification of

    heirs given in Quran.

    The classification becomesimportant only in cases of

    quantum of shares.

    7.Method of interpreting Quran is

    literal.Method of interpreting Quran is

    characteristic.

    8.Distant Kindred are postponed in

    favour of sharers andResiduaries.

    Distant Kindred inherit alongwith sharers and Residuaries.

    9.Doctrine of Aul is applicable to

    all sharers alike.Doctrine of Aul operates against

    daughter and sister only.

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    10.

    Doctrine of Radd does not applyto wife and husband in presenceof any other heirs. However, inabsence of sharers, both get by

    return.

    Except India, Doctrine of Raddis not applicable to wife under

    any circumstances.

    11.Principle nearer in degree

    excludes more remoteapplicable to only agnatic heirs.

    Principle nearer in degreeexcludes remote applicable to

    all, without distinction.

    12.No distinction between real and

    personal property.

    Observe such distinction incase of Childless widow who isnot allowed to take husbands

    immovable property.

    13.Do not recognize right of elder

    son getting preference overyounger ones.

    Recognize right of eldest son upto deceased fathers sword,wearing apparel and Quran.

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    CONCLUSION

    The law of succession in India falls within the realm of personal law. Due tothis, we have so many different succession laws, each purporting to reflectthe diverse and differing aspirations, customs, and mores of the communityto which the statute in question applies. The primary source of the Muslimlaw of succession flows from the Holy Koran. In addition, the Ijmas, theSunnas, and the Qiyas, from all of which rules pertaining to succession canbe gleaned.

    The Muslim law of inheritance is a superstructure constructed on the

    foundation of pre-Islamic customary law of succession. The divine justness

    and equitability of the Islamic laws of inheritance have been correctly

    appreciated by many non-Muslim scholars such as Professor Almaric

    Rumsey (1825-1899) of King's College, London, the author of many works

    on the subject of the Muslim law of inheritance and a barrister-at-law, who

    stated that the Muslim law of inheritance, "comprises beyond question the

    most refined and elaborate system of rules for the devolution of property

    that is known to the civilized world.

    To understand the Islamic laws of inheritance as a whole it is necessary to

    consider the system of inheritance that operated within the Arabian

    Peninsula, prior to the revelation of the Quranic injunctions on inheritance.

    Although we do not have the exact details of the system that operated prior

    to the Quranic revelations we do know that the system of inheritance was

    confined to the male agnate relatives ("asaba") of the deceased. In this old

    customary system only the male agnates (asaba) were entitled to inherit.Amongst the male agnates there were rules of priority, which determined

    which of the surviving male agnates were entitled to inherit. It is likely that

    the rules of priority that operate amongst the asaba in Sharia are a carry-

    over of the old customary agnatic system. In Islamic law the son takes

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    priority over the father who in turn takes priority over the brothers who in

    turn take priority over the paternal uncles.

    As we shall see the Quran does not expressly state the share of the male

    agnate relatives as such, although it does enact that the share of the male

    is twice that of a female. The Sunni jurists take the view that the intention of

    the Quranic injunctions was not to completely replace the old customary

    agnatic system entirely but merely to modify it with the objective of

    improving the position of female relatives. The Sunni Islamic law of

    inheritance is therefore, an amalgamation of the Quranic law superimposed

    upon the old customary law to form a complete and cohesive system.

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    BIBLIOGRAPHY

    Though primary source would be Quran, following books are referred forbetter understanding

    1. FAMILY LAWBy G.C.V. Subba Rao.

    2. PRINCIPLES OF MOHAMMEDAN LAWBy Mulla.

    3. MOHAMMEDAN LAW

    By Tahir Mahmood.

    WEBLIOGRAPHY

    1. http://www.iium.edu.my/deed/hadith/muslim/011_smt.html Visited on 26thDecember, 2013.

    2. http://www.lawyersclubindia.com/articles/-8220-SUCCESSION-UNDER-HANAFI-LAW-8221--424.asp#.UryTq9IW2Xo Visited on 26thDecember, 2013.

    3. http://www.muslimpersonallaw.co.za/Inheritance%20according%20to%20Islamic%20Sharia%20Law.pdf

    Visited on 26thDecember, 2013.

    4. http://www.kantakji.com/fiqh/files/mawareeth/4015.pdfVisited on 23rdDecember, 2013.

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