15

INHERITANCE
Introduction
Succession to the
intestate. The
properties of a deceased person may either be testamentary or
testamentary
succession is calledsuccession is called a legacy and takes place under a WilI.
properties in wellinheritance
Intestate under which the legal heirs of the deceased
succeedtohis
defined shares fixed under the law. Upon the death ofa
Muslim, his properties are, in the first instance,
expenses, government dues and, his
unpaid
utilised for payment of his funeral
debts. In the
propertyis succeeded by the legatees, if any, under the lawsecond instance, the remaining
payments, the residue or the remaining
of Wills. After making these
property, is called the heritable property. In the
Pinstance, this heritable property is given to the legal heirs of the deceased so that they
may inheritit in their respective shares. The quantum of the property to be inherited by
eachlegal heir and also the terms and conditions under which they get their respective
shares, is governed by the Muslim law of inheritance. It may be noted that Muslim law of
jnheritance (Faraid) is peculiar in the sense that the scheme of distribution has been
framedin such a manner that besides
specifyingthe respective shares of the legal heirs, it
ealso made provision for the conflicting claims of other relatives of a
nconable balance has been maintained between the nearness of the heirs anddeceased.
A
the amount
of their shares in the property of the deceased. Although the Muslim law of inheritance
may appear to be a complex infra-structure of devolution of the estates yet, in itself, it is
comprehensive, logical and complete in all respects. Appreciating the provisions of the
Muslim law of inheritance, Mac Naghten observes thus :
"In these provisions we find ample attention paid to the interests of all those
whom nature places in the first rank of our affections; and indeed it is difficult to
conceive any system containing rules more strictly just and equitable".!
The reason behind the complexity as well as its perfection, is simple. The Muslim law of
inheritance has got a dual basis. The whole body of rules relating to inheritance is based
on (a) Quran and the traditions of the Prophet and, on (b) such pre-Islamic customs which
were approved by the Prophet. Thus, besides new provisions, the Islamic system of
inheritance incorporates also the pre-Islamic customs of Arabia. New rules of inheritance
have been formulated in the Quran and traditions in an attempt to reform the pre-Islamic
Customary law on inheritance, there is some influence of the pre-Islamic customs.
Because of these two reasons, it is necessary to have some knowledge about the pre
Islamic customary law of inheritance.
Pre-Islamic Customs
Before the advent of Islam, the properties of a deceased used to devolve upon his
heirs according to the customary practices prevalent in the Arab societies. But, most of

I. Mac Naghten : Preliminary Remarks; quoted in Fyzee's Outlines of Muhammadan Law, Ed. IV, p. 387.
(277 )
 MUSLIM LAW
the customs unreasonable, indiscriminate and against all notions
justice. Femaleswerewere treated as properties; therefore, they were not entitledtoof equity and,
property from anyone. Even the closest female relations of a deceased inheri any
allowed to inherit his properties. The mother, wife, daughters and sisters wereArab were no
inheriting the property of a deceascd Arab. Moreover, not only the females but.
who "inherited through females (cognates) were excluded from inheritance. ,also of
hand the sons, grandsons, father, brother, uncles, nephews and other male On the those
deprived
always preferred. That is to say, the customary rules were all in favour of otWeherre relations
relations of the deceased. Besides blood-relationship, the succession was the male.
ground of adoption and contract. There were numerous customs in the also on the
determining the order of succession. Some important pre--Islamic customs Arab
on tribes for
are briefly stated as under :
(1) Females and cognates had no rights of inheritance.
inheritance
(2) Normally, the nearest male agnates (.e., persons
used to succeed to the properties of adeceased.
inheriting through males)
(3) Descendants were preferred over parents and other ascendants.
(4) Where the agnates were equally distant, the devolution of
them was per-capita. property anong
The Islamic Reforms
After the advent of Islam, new principles of inheritance were promulgated hy
Quran and traditions of the Prophet. The new rules reformed the customary law of
inheritance and made it just and equitable. Females who were not entitled to inherit at all
under the pre-Islamic customs, were given equal rights of inheritance. The Ouran deals
elaborately with the rules relating to inheritance. In Chapter IV, the Quran provides:
"Allah chargeth you concerning (the provision for) your children : ta the male
the equivalent of the portion of two females, and if there be women more than two.
then theirs is two-thirds of the inheritance, and if there be one (only) then the half.
And to his parents a sixth of the inheritance, if he have a son; and if he have no son
and his parents are his heirs, then to his mother appertaineth the sixth, after any
legacy he may have bequeathed, or debt (has been paid). Your parents or your
children: ye know not which of them is nearer unto you in usefulness. It is an
injunction from Allah."2
It may be noted that the Quran has introduced a new class of legal heirs constituting
female and the aged parents. Under the customary law, the females and cognates were
totally excluded from inheritance and the aged parents were also excluded in presence ot
the descendants. In order to secure their rights of inheritance, these newly created heirs
have specifically been mentioned in the Quran which also lays down their respective
shares. It may be noted that the Quran is of divine origin; therefore, neither the position
nor the respective shares of these new heirs can be changed by any human agency. Some
of the main reforms introduced by the Islamic system of inheritance, may be
as under: summar1se0
(1) The females and the cognates are competent to inherit.
(2) Husband and wife have been made each other's legal heir.
(3) Parents and ascendants are entitled to inherit even in the presence ol
descendants.
(4) Normally,the share of a female is half of the share ofamale

2. Quran, Sura IV, Ayat 11 : See also Ayats no. 7, 8, 12, 177 of Sura IV.
 INHERITANCE 279
relevant to note that the customary rules of inheritance have not been
Itis
completelyabolished. The new principles have simply reformed the customary laws by
makingar mendments or improvements to bring the rules of inheritance in consonance
principles of Islam.
the which were found toTherefore, only those customary rules have been totally
with
abrogated be un-Islamic or against the philosophies of Islam. Thus
other heirs but, at
althoughIslam has created new class of heirs who are preferred over heirs under the
time, these newly created heirs do not totally exclude the
same
the
customarylaw. In the Islamic system, class one or the newly created heirs are
given the
ofall and, the residue is distributed among those who were generally the heirs
sharesfirst
under
customary law. The scheme of distribution has been formulated in such a manner
givingthe property tothe new heirs, there always remains something for class
that after which the
the customary heirs. In this manner, we find an unique arrangement in
two or excluding them
created heirs inherit together with the customary heirs without
newly by the new
altogether. Thus, the customary law of inheritance has been super-imposed
Islamic system inheritance. But, reforms in the
of customary law of inheritance, has
paved the way for divergent opinions on the
question of nature and extent of the
amendment made by Quran. While applying the new Islamic rules, how
much of the
are to be retained and how much are to be abolished, is a question which
customarylawsar
depended upon the interpretation of the Quranic provisions. Obviously, there have been
inheritance.
divergent views regarding the interpretation of the Quranic rules of
provisions. Their
The Sunni jurists have given strict interpretation to the Quranic
approach was to retain the customary laws and amend each of them separately according
the Quran has been taken to be
to specific provisions of uran. Thus, each provision of On the other hand, the Shia jurists
snecific amendment of the pre-Islamic customary law. of Quran. They have taken
have preferred to give a liberal interpretation to the provisions
customary law. Each provision of
the Quranic provisions as completely alteringonthetheoldbasis of which new principles of
Ouran was interpreted as an illustration provisions have been
inheritance could be deduced. In other words, the Quranicgeneralised and applied
interpreted by Shia jurists as an example which could beinterpretation of Quranic
anywhere under similar circumstances. Therefore,thethe formulation of altogether new
provisions, as given by the Shia jurists, resulted in
principles of inheritance. Because of this difference in the approach to the interpretation
difference in the Sunni and Shialaws of
of Quranic provisions, there has been a marked
inheritance.
GENERAL PRINCIPLES OF INHERITANCE
(1) Nature of the Heritable Property
legal heirs for
Heritable property is that property which is available to the payment of
inheritance. After the death of a Muslim, his properties are utilised for the
these payments, the
Tuneral expenses, debts and the legacies i.e. wills, if any. After law, every kind of
Temaining property is called heritable property. Under Muslimn
inheritance, Muslimn law does not
Poperty may be a heritable property. For purposes of between movable and immovable,
ake any distinction between corpus and usufruct or, some difference in the
COrporeal and incorporeal property. Under English law, there is is no such
eritance of movable and immovable property. But, under Muslim law there
the deceased at the moment of
distinction; any property, which was in the ownership of
us death, may be the subject-matter of inheritance.
Shia law-Under the Shia law, a childless widow is entitled to get her share (1/4)
in the Inheritance only from the movable property left by her deceased husband.
280 MUSLIMLAW

(2) Jointor Ancestral Property

The concept of a joint family or of coparcenary property (as is
dies, his properties
Hindu law) is not knownto Muslims. Whenever a Muslim absolute recognised underon
his heirs in definite share of which each heir becomes an owner.
,heidres,voveand
upon the death of such heir, his properties are again inherited by his legal
process continues. Thus, unlike Hindu law, there is no provision for any
inheritance, no
property. Accordingly, under Muslim law of properties,
Subancestsequenrtaliy.
this
or
joint-family
been made between self-acquired and ancestral property. All
by a Muslim himself. or inherited by his ancestors, are regarded as an individual
diwhetshtiernctacquiion rhased
and, may be inherited by his legal heirs. property
(3) No Birth-Right
Inheritance opens only after the death of a Muslim. No person may be an heir of
Iiving person (Nemoest haeres viventis).Therefore, unless a perSondies, his heirs hau a
interest in his properties. Unlike Hindu law, the Muslim law of inheritance
does
recognise the Concept of 'right by birth' (Janmaswatvavad)". Under Muslim law, an heinotr
does not possess any right at all before the death of an ancestor. It is only the death of a
Muslim which gives the right of inheritance to his legal heirs. As a matter of fact,
a person dies, his relatives are not his legal heirssuccessionis).
; they are simply his unlandess
heir-apparent
If such an
have merely a 'chance of succession, (spes heir-apparent
survives aMuslim, he becomes his legal heir and the right of inheritance accrues to him
If the heir-apparent does not survive aMuslim, he cannot be regarded an heir and has no
right to inherit the property.
(4) Doctrine of Representation
Doctrine of representation is a well known principle recognised by the Roman,
English and Hindu laws of inheritance. Under the principle of representation, as is
recognised by these systems of laws, the son of apredeceased son represents his father
for purposes of inheritance. The doctrine of representation may be explained with the
help of the diagram given below. Phas two sons Aand B. Ahas got two sons Cand D
and B has a son E.

A B(dies during the life of P)

E
C D

During the life of P, his family members are his two sons (A and B), and three
grandsons (C, D and E). Unfortunately, B pre-deceases P, i.e. B dies before the death of
P. Subsequently, when P also dies, the sole surviving members of the family of P are A
and three grandsons, C, D and E. Under the doctrine of representation, E will represent
his pre-deceased father Band would be entitled to inherit the properties of Pin the samt
manner as B would have inherited had he been alive at the time of P's death.

3. Right by birth is a concept of Hindu law under which a male member of ajoint Hindu ray
(coparcenary) gets an interest in the coparcenary property by vitue of his birth in that family.
4. Hassan Ali v. Nazo, (1989) 11 All. 456.
 Bul, Muslim law does not INHERITANCI
nearer
law,the excluded
recognise the doctrine of
excludes the remoter.
betotally E has no
from
rightinheriting
the Accordingly, in the
to inherit the properties of P. Both,
represent
illustrationatio n Under Musirn
givenas above. E will
Sunnilaw, under
that he represents his properties of P. The result is Shia Ecannot take
well as under
plea Muslim
Under law, the pre-deceased
nearer heir totally father (B) and should be
that
substituted in his
the
place
istosay, if there are two heirs who claimexcludes
inheritancea remoter
from aheir
commonfrom ancestor, the fhal
inheritance. heir
nearer (in degree) to
whois the deceased, would
Ebecauseexclude
and E, A the heir who is rermoter. Thus.
between A will totally exclude
the A is
belongsto second degree of generation. The nearer to Pjustify in degree whereas, E
denyingthe right of
representation on the ground
Muslim jurists the reason for
that a person has not
righttothe property of his ancestor until the death of that ancestor. Accordingly,even an inchoate
they
arguethat there can be no claim through a deceased person in whom no right could have
been vested by any pòssibility. But, it may be submitted that non--recognition of
principles of representation under the Muslim law of inheritance, seems to be
unreasonable and harsh. It is cruel that a son whose father is dead, is unable to inherit the
propertiesof his grandfather together with his uncle.5
(5).Per-Capita and Per-Strip Distribution
Succession among the heirs of the same class but belonging to different branches,
oN either be per-capita or per-strips. In a per-capita distribution, the succession Is
according tothe 'number of heirs' (i.e. heads). Among them the estate is equally divided ;
therefore, each heir gets equal quantity of property from the heritable assets of the
deceased. On the other hand, in a per strip distribution, the several heirs who belong to
available to the branch
different branches, get their share only from that property which is
o which they belong. In other words, in the stripital succession, the quantum of property
available to each heir depends on the property available to his branch rather than the
the assets is per-capita. That
aumber of all the heirs. Under Sunni law, the distribution of from which he inherits. The
respect represents the branch
is to say an heir does not inany following diagram.
ner-capita distribution may be illustrated by the
M

S? S3
and
sons, S', S² and s', B has two sons S
A and B. A has threesuccession, one of A and the other of B.
M has got two sons branches of of M are
S. When M dies
there are two
death of M so that the sole surviving heirs
before the
Suppose, Aand B both die resented by
inheritance has been
representation under Muslim láw of Tunisia, Syria etc. although the
of the right of including Egypt, grandsons
S. Non-recognitionIn some of the Muslim countries recognised but the interests of the orphaned
these countries, a
modern jurists. not been expressly 'obligatory bequests. In death the
has his
principle of representation
protected by making sons of a
upon
provision for pre-deceased son so that representation has
has been indirectly make will in favour of Pakistan the doctrine of suggested that
grandfather is compelled toget properties out of his estate. In
Family Laws Ordinance,
1961. It is
representation in the Muslim
grandsons must of the Muslim right of
ophaned introduced by Section 4 introducing the
been expresslythere is need of asuitable legislation
n India too,
lawof inheritance.
 MUSLIM LAW
his five grandsons. Now, the per-capita scheme of distribution (as
under Sunni law) the total under
number of claimants (heirs) is five and the
would be equally divided among all of
belongs. Therefore, each of them wouldthem heritablreecogni
irrespective of the branch to which an
1/5
s ed
property
heir
that under Sunni law the principle of get of the total assets of M. It
may be
is recognised neither in the noted
determining the clainm of an heir, nor inrepresentation
determining the quantum of share of each mat heirter
of
Shia law :Under the Shia law, if there are several
descend from different branches, the distribution among them heirs of the same class but tho
the quantum of property inherited by each of them is per strip. That is to sa
that particular branch to which they belong. In the depends upon the property available to
above-mentioned illustration, Aand
constitute two branches,each having 1/2 of M's property.
But, the quantum of property available to cach of their Both, Aand Bpre-decease M
Therefore, the surviving heirs of A namely, S', S, S' would branch would remain the same
which is quantum of property available to the branch of A. get equal shares out of 1
1/6 each. Similarly, the Thus S', S and S would oet
quantum of property
the descendants from this branch are only available to the branch of Bis also I/2
but
be equally shared by S and SÝ, two. Accordingly, the 1/2property of Bwould
to note that for a limited purposeTherefore, S and S would get 1/4 each. It is significant
of calculating the share of each heir, the
accepts the principle of representation. Shia lay
Moreover,
applicable for determining the quantum of share also of theunder the Shia law this rule is
daughter, pre-deceased brother, pre-deceased sister or that ofdescendants
a
of a pre-deceased
(6) Female's Right of
pre-deceased aunt,.ó
Inheritance
Males and females have equal rights of
his heirs include also the females inheritance. Upon the death of a Muslim, if
then, male and female heirs inherit
simultaneously. Males have no preferential right of inheritance over thethe properties
normally the share of a male is double the share of a females, but
there is no difference between male and female. In other words, although
inheritance is concerned but generally thefemale heir in so far as their respective rights of
quantum of property
is half of the property given to a
male of equal status (degree). inherited by a female heir
The principle that
some justification. Undernormally the share of a male is double the share of a
an additional money or Muslim law, while a female heir gets (or hopes to getfemale
in
has
male counterpart gets noneproperty
as her Mehr and
of the two benefits. maintenance from her husband,future) her
for the maintenance of his Moreover, the male heir is primarily liable
children whereas, the female heir may have this
in an
extraordinary case." liability only
(7) A Child in the Womb
A child in the womb of its
A child in embryo is mother is competent to inherit
regarded as a living person and, as provided it is born alive.
immediately in that child. But, if such, the property vests
already vested in it is divested and,suchit isa child in the womb is not born alive,
womb) at all. presumed as if there was no such heirthe(inshare
the
(8) Primogeniture
Primogeniture is a principle of inheritance under which the
deceased enjoys certain special eldest son of the
privileges. Muslim law does not recognise the rule of
6. Mulla: Principles of
7. Tahir Mohammadan Law, Ed. XVII, p. I15.
8. Tyabji;Mahmood;
The Muslim Law of India, p. 247.
Muslim Law, Ed. IV, p. 819.
 primogeniture and
all
con has an
Quran,
exclusive sons are treate
provided hat ight to
propenties.besides such cldest inherit
INI LRANE
hiscqually HowevCr
243

(9) Step-Children
these articles, son of fathers
is
sound migarment
Unde
nd andstheswt:
The step-children father has tefcertain othe
Similarly, the are no
Muslim Hwho
son of H,
step-parent
maries a
is widows having inherit
too doentnotitled to inheit the
W from properties their step pareni
of
other'stsep-father thisThatson. The from hersteprevip-andchiousldrehusband,
n.
a son
inherit each of For example. where
r
father or natural
sons mother.
propertSimieis.larly, thestep-chistldep-fatis her stetop-soninherit daughter)
(or
the son is a step
theirnatural or
daughters. natural fathercompet ent nother from nalural
and natural its
cannot
However, the can inherit from
the illustration givenstabove,
ep-brota ifhersson (orsisters) can inherit each
(or
the newly born child other's properties. Thus,
would
step-brotdaughter)
husband. These sons or be a is
born out of the in
step-brothers or
sisters may are her (or
daughters competent tosister)inherit
of the son from
marriage
wife's previous
of Hand W,

mutual rights of either be each

inheritance uterine or
between uterine and other' s property. The
consanguine.brothers
Muslimorlaw provides for
(10) Simultaneous Death of two Heirs consanguine sisters.
When two or more
to who died first (i.e. whopersons die in such a
other. In other words, where survived whom) circumstance
then,
two or more heirs die both of
that it is not ascertainable as
them cease to be an heir for each
to establish as to who died first
died justt at one moment. The
then under Muslim law,simultaneously
result is that such heirs are all the
and, it is not possible
heirs are presumedto have
at all : the inheritance opens regarded
legal heirs in such a manner that omitting these heirs.9 For example, Aasandif they B are
did not exist
each other's
ould inherit the property of the after the death of any one of them, the surviving person
ta an aeroplane crash, and it deceased one. But, both Aand B die
not be established as to who simultaneously say,
Muslim law, neither A would could inherit survived whom. Under
would inherit A's property as if thereBwas nor B would inherit A. Thus,
no B at
the legal heirs ofA
inherit B's property as if A did not exist at all. all. Similarly, the heirs of B would
(11)Missing Persons
According to the texts of Hanafi law, a
dead only after ninety years from the date ofmissing person was supposed to have
his birth; till then the inheritance ofbeen
properties did not open. But, now this rule has been superseded by Sec. 108 of the Indianhis
Evidence Act, 1872which provides as under:
"When the question is whether a man 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 shifted to the
person who affirms it".
Accordingly, where a Muslim is missing for at least seven years and if it could not

9. A
It may
and be notedeach
B are thatother's
insuchheirs.
cases Ifthe A
fact
diesasfirst
to who
his survived
propertieswhom is aimmediately
would very important
vestfactor.
in BSuppose
through
inheritance. Subsequently, say after five minutes when B also dies, the heirs of B would get B's inherited
property plus also his self-acquired property. Under English and Hindu laws, in such cases, the rule is
these systems, the law presumes that the elder died
that the younger survives the elder. In
first, whatsoever might have been the fact.
 MUSLIM LAW
284
(or she) was alive then. that person is legally presumed to be dead and
theproved
be inheritance he
that of his (or her) properties opens. It has been held by the courts that Hanafi
life of a missing person, was only a rule of evidence and not any
rule of ninety years of tho
succession; therefore, this Hanafi rule must be taken as superseded hy
rule of
provisions of Indian Evidence Act 1872.10
(12) Escheat
deceased Muslim has no legal heir under Muslim law, hisproperties ara
Where a escheat. State is regarded as the ultimate
inherited by Government through the process of
heir of every deceased.!
(13) Marriage under the Special Marriage Act, 1954
a Muslim contracts his marriage under the Special Marriage Act, 1954, he
Where
inheritance. Accordingly, after the death of such a
ceases to be a Muslim for purposes of under Muslim law of inheritance. The
Muslim his (or her) properties do not devolve
are governed by the provisions of the
inheritance of the properties of such Muslims inheritance is not applicable.
Indian Succession Act, 1925 and Muslim law of
RULES OF EXCLUSION
unless he (or she) is debarred from
Every heir is entitled to inherit a property law, if an heir is disqualified on
inheritance under any rule of exclusion. Under Muslim from inheriting the property.
is excluded
any of the following grounds, he (or she) physical deformity is not regarded as any
However, insanity, want of chastity or any infirm persons are equally
disqualification for inheritance. Adulterous women, insane or
competent to inherit a property.
(a) Homicide
another, is disqualified for inheriting the
A person who causes the death of common prudence that law cannot allow a
properties of the said deceased. It is a rule of
Under Hanafi law, an heir who causes
person to derive benefits out of his own wrongs. disqualified heir and cannot inherit
the death either intentionally or negligently, is ais caused due to negligent or accidental
properties of the deceased. Thus,even if the death
inheritance.
act of an heir, the heir is debarred from
Shia Law
from inheritance only where the
Under the Ithna Asharia law, an heir is excluded negligently, the Ithna
death is caused accidentally or
death is caused intentionally. If theinheritance.
Asharia heir is not debarred from
(b) lllegitinmacy inherit the properties of
Under Sunni law, an illegitimate person is not entitled to inherit the properties of
to
his (or her) father. But an illegitimate person isancompetent
illegitimate child is entitled to inherit
mother. It is to be noted that under Sunni law,
not only the mother's properties but, throughSunniher also the properties of mother's other
relations. In Bafatun v. Bilaiti Khanum, 12 a female died leaving her husband and
heirs. The husband took 1/2 of her
an illegitimate son of her sister as her sole surviving illegitimate son who was the
assets and the remaining 1/2 was inherited by her sister's
Cassim v. Moolla Abdul (1905) 33 Cal 173; Azizul
10. Mazhar Ali v. Budh Singh (1884) 7 All 297; Moolla
Hasan v. Mohammad Farug, AIR (1934) Oudh 41.
were deposited in the public treasury (Bait
11. Under pure Muslim law, the properties of heirless Muslims
ul-mal) for the benefit of Muslims.
12. (1903) 30 Cal. 683.
 INHERITANCE
Sunnt law, an
deceased. It was held by the court that under
distant relative of the could inherit
only son was competent to inherit his mother and through his mother entitled to
Jllegiltimate child is not
properties of his mother's sister. However, an illegitimate remarriage of the
nother'sthose relations who became relatives by any subscquent
alsothe
inherit
said
mother.
13

Difjerenceof. Religion properties of

texts, a non-Muslim is excluded from inheriting the
Underthe Islamic administered in India, difference of religion is
But under the Muslim law as cannot he
Muslinm. inheritance. Alegal heir of the deceased Muslimthe time of
a any disqualification tor Muslim at
heir was not: a
from inheritance on the ground that such Removal Act, 1850,
renunciation of
not
debarred deceased. Under the Caste Disabilities under the
personal
the inheritance
deathof heir does not affect his (or her) rights of converted heir will
byany heir belonged before conversion.!4 Accordingly, a
religionwhich illustration will
that Following
lawto tobe governed by the Muslim
law of inheritance. reenounces Islam and
continue and a daughter. The son
rule. A Muslim has a son father's the inheritance opens, not
the
this death i.e. when
clarify Christianity. At the time of non-Muslim son is
to
converts continuesto be a Muslim but the son is a Christian. The together
properties of his father
daughter from inheritance and is competent to inherit the
excluded deceased, is an
Muslimsister. i.e.
withhis
may be noted that religion of the propositus
personal law to which the
However, it devolve under the
because the properties For example, if a Hindu becomes a Muslim
important factor before his death. would be inherited by heirs
just
propositus belonged then dies as a Muslim, his propertiesclaim inheritance. In K.P.
conversion and law cannot died as a
throughMuslim law ; the heirs under Hindu woman converted to Islam inheritance. It
under Govt. of Mysore,1 a Hindu Hindu brother claimed heir
Chandrashekhar v. Muslim law. Her because he was not an
heir under inherit
Muslim. She had no that her Hindubrother could not
court
uOs held by the
underMuslim law.
under Custom orStatute from inheritance under any
Daughters sometimes excluded Gujars and
() Exclusion of places daughters are enactment. For example, among thethe presence
Atcertain under some specific daughters cannot inherit in Act, 1886,
local custom orKashmir, there isa custom
that
Similarly, under the Watanofa paternal
Backkerwals of grandfather.l6 presence
descendant of the excluded from inheritance in the
of any maleBombay, a daughter is
enforced in
uncle17
CERTAIN TERMS
EXPLANATION OF inheritance. Thus, a
of
property is subject
called the propositus.
Propositus deceased whose legal heirs, is ascending
Propositus means aare inherited by his (or her) a person from whom the
properties proposed' or
person whose includes "the person
term
In general, the force in India as
All 460. usage now in or affect any
Magsood Ahnad, AIR (1952) So much of anylaw or way to impair
any communion of
Rahmar Ullahv.
Removal Act. 1850, Sec. (1);
property or may be held inexcluded from the
13. Disabilities or having been court.
14. Caste person forfeiture of rights
her renouncing, orenforced as law in any
Intlicts on any reason of his or to be
inheritance, bydeprived of caste, shallcease
nght of
or being
any religion,Mys. 25. K. 53.
15. AIR (1955)
Mst. Fazli. AIR (1960)J. &266
v. Bom.
1o. Aziz Dar Abasaheb. AIR (1931)
Aminbi v.
286 MUSLIM LAW

or descending line is traced in the sUccession of properties.

Ascendants
Persons who are in the higher degrees (generations) from the propositus, are calor
as well as
ascendants of the said propositus. Ascendants may be from paternal
maternal sides degree how high soever. For example, if iror
propositus then,andthemayfather, to anyfather,
belongfather's
Phe
father's father's father etc., of Pare the
ascendants of Pfrom paternal side. Similarly,the mother, mother's mother etc. of Pare
called ascendants of P from maternal side.
Descendants
Persons belonging to lower degrees (generations) from the propositus, are called
descendants of the propositus. A person may have male as well as female descendants in
the line of descent how low Soever. Thus, the son, son's son, son's son's daughier etc. or,
the daughter, daughter's daughter, daughter's daughter's son etc. are all descendants of a
person.
Collaterals
Descendants of the ascendants of a propositus are called collaterals of tha
propositus. According to Tyabi, collateral means a person having a common ancestor
with the deceased (either on the side of the father or mother and through male or female
links) : but who is neither adescendant nor ascendant of the deceased. o 1t may be noted
that one of the descendants of one's ancestor (father and mother) is the propositus
himself; but, besides him there may be other descendants like him. Such other
descendants of his ancestor (ancestor may be how high soever) are collaterals of the said
propositus. Accordingly, the brother, sister, nephew, niece, cousin, uncle, aunt, grand
uncle or grand aunt etc. of the propositus are included in the term collateral of a
propositus.
Agnates
Agnate is a person who is related to the propositus through males. All the persons
whose descent from a propositus could be traced only through the males (without
intervention of any female) are called the agnates of the deceased. However, it is not
necessary that an agnate must be a male ;a female may also be an agnate provided the
female inherits through a male. For example, the son, son's son, son's daughter, father.
father's father, father's mother are agnates of adeceased.
Cognates
Cognate is a person who is related to the propositus through one or more females.
In the line of succession from the propositus, if there intervenes any female then that
person is cognate of the propositus. Thus, a daughter's son, daughter's daughter, mother's
mother, mother's father, or father's mother's father etc. are cognates.
True Grandfather, True Grandmother
In the language of the law of inheritance, paternal grandfather is called a true
grandfather. That is to say, true grandfather is an agnatic grandfather. If there is no
intervention of any female between a male ancestor and the propositus, the male ancestor
is called true grandfather of the propositus. For example, the
father's father's father etc. how high soever, are the true father's father, or, the
grandfathers.
18. Tyabji ; Muslim Law, Ed. IV. p. 815.
 INHERITANCE 287

The paternal grandmother is called a true grandmother. If between a fermale

and the propositus there is no intervention of any maternal grandfather, the
ancestor
ancestor is true grandmother of the propositus. Thus, father's mother, father's
female
mother, mother's mother's mother
father's mother's mother, and mother's mother, m
father's
true erandmothers. Itis may
mentioned| relations, there
are
be noted that between the propositus and the above
no intervention of any maternal grandfather.
Grandfather,, False Grandmother
FalseThe maternal grandfather of a person is technically called as his false grandfather.
a grandfather and the propositus there is an intervention of one or more
If. between For
females, the said grandfather is termed as afalse grandfather of the porpositus. father and,
example, the mother's father, mother's mother's father, mother's father's
propositus and
father's mother's father etc. are the false grandfathers because, between the
the male ancestor there is a female ancestress.
the
If there intervenes any maternal grandfather between a female ancestor and For
propositus.
propositus then, the said female ancestor is afalse grandmother of that
instance, mother's father' mother is false grandmother of a propositus. The false
arandfather and false grandmothers belong to the class of distant kindred. 19
Uterine Brothers and Sisters
Where the mother of tWo or mnore persons is common, but their fathers are
of one
different, these persons are uterine brothers or sisters. In other words., children
mother but from different fathers, are uterine brothers or sisters. Such children are uterine
relations because they are related to each other through common mother (uterus). For
from the
instance W, a widow having a son S from her deceased husband, marries H and
union of W and H a daughter D is born to them. HereS and D are uterine brother and
sister because although their fathers are different persons yet, their mother is common.
Uterine relations are cognates because they inherit through a female (the common
mother).
Consanguine Brothers and Sisters
Children of a common father but different mothers, are called consanguine brothers
or sisters. To illustrate, if a widower H having a son S from his deceased wife, remarries
with Wand a daughter D is born to them then, although the mothers of S andD are
ditferent yet, they have a common blood (consanguinity) of the father. They are,
therefore, consanguine brother and sister. Consanguine relations are agnates because they
inherit through the father.
Full Brother and Sister
Real brothers or sisters are called full brothers or sisters. That is to say, brothers or
sisters of a common parents are full brothers or sisters.

Acknowledged Kinsman
insman is any person from a common stock or common ancestor. An
kinsman is a person who does not actually belong to the common stock
acknowledged
but, the propositus had made an acknowledgement of kinship (common descent) for him.
Thus, an acknowledged kinsman is aperson who has fictitiously been admitted by the
to belong to his common stock. However, a person may acknowledge the
acknowl
Commonedger
descent of another only through some other person, not through himself. For
19. Mulla: ! Principles of Mohammadan Law. Ed. XVIIl p. 66.