Succession to the properties of a deceased person may either be testamentary or intestate. The testamentary succession is called a legacy and takes place under a Will. Intestate succession is called inheritance under which the legal heirs of the deceased succeed to his properties in well defined shares fixed under the law.
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Upon the death of a Muslim, his properties are, in the first instance, utilised for payment of his funeral expenses, government dues and, his unpaid debts. In the second instance, the remaining property is succeeded by the legatees, if any, under the law of Wills. After making these payments, the residue or the remaining property, is called the heritable property.
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In the last instance, this heritable property is given to the legal heirs of the deceased so that they may inherit it in their respective shares. The quantum of the property to be inherited by each legal 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 inheritance (Faraid) is peculiar in the sense that the scheme of distribution has been framed in such a manner that besides specifying the respective shares of the legal heirs, it has also made provision for the conflicting claims of other relatives of a deceased.
A reasonable balance has been maintained between the nearness of the heirs and 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 are difficult to conceive any system containing rules more strictly just and equitable”.
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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 the customs were unreasonable, indiscriminate and against all notions of equity and justice. Females were treated as properties; therefore, they were not entitled to inherit any property from anyone.
Even the closest female relations of a deceased Arab were not allowed to inherit his properties. The mother, wife, daughters and sisters were deprived of inheriting the property of a deceased Arab. Moreover, not only the females but, also those who ‘inherited through females’ (cognates) were excluded from inheritance.
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On the other hand the sons, grandsons, father, brother, uncles, nephews and other male relations were always preferred. That is to say, the customary rules were all in favour of the male relations of the deceased.
Besides blood-relationship, the succession was also on the ground of adoption and contract. There were numerous customs in the Arab tribes for determining the order of succession. Some important pre-Islamic customs on inheritance are briefly stated as under:
(1) Females and cognates had no rights of inheritance.
(2) Normally, the nearest male agnates (i.e., persons inheriting through males) used to succeed to the properties of a deceased.
(3) Descendants were preferred over parents and other ascendants.
(4) Where the agnates were equally distant, the devolution of property among them was per-capita.
The Islamic Reforms:
After the advent of Islam, new principles of inheritance were promulgated by 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 Quran deals elaborately with the rules relating to inheritance. In Chapter IV, the Quran provides:
“Allah chargeth you concerning (the provision for) your children : to 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 appertained 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.”
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 of 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 summarised as under:
(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 of descendants.
(4) Normally, the share of a female is half of the share of a male
It is relevant to note that the customary rules of inheritance have not been completely abolished. The new principles have simply reformed the customary laws by making amendments or improvements to bring the rules of inheritance in consonance with the principles of Islam. Therefore, only those customary rules have been totally abrogated which were found to be un-Islamic or against the philosophies of Islam.
Thus although Islam has created new class of heirs who are preferred over other heirs but, at the same time, these newly created heirs do not totally exclude the heirs under the customary law. In the Islamic system, class one or the newly created heirs are given the shares first of all and, the residue is distributed among those who were generally the heirs under customary law.
The scheme of distribution has been formulated in such a manner that after giving the property to the new heirs, there always remains something for class two or the customary heirs. In this manner, we find an unique arrangement in which the newly created heirs inherit together with the customary heirs without excluding them altogether.
Thus, the customary law of inheritance has been upper-imposed by the new Islamic system of inheritance. But, reforms in the 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 customary laws are to be retained and how much are to be abolished, is a question which depended upon the interpretation of the Quranic provisions. Obviously, there have been divergent views regarding the interpretation of the Quranic rules of inheritance.
The Sunni jurists have given strict interpretation to the Quranic provisions. Their approach was to retain the customary laws and amend each of them separately according to specific provisions of Quran. Thus, each provision of the Quran has been taken to be specific amendment of the pre-Islamic customary law. On the other hand, the Shia jurists have preferred to give a liberal interpretation to the provisions of Quran.
They have taken the Quranic provisions as completely altering the old customary law. Each provision of Quran was interpreted as an illustration on the basis of which new principles of inheritance could be deduced. In other words, the Quranic provisions have been interpreted by Shia jurists as an example which could be generalised and applied anywhere under similar circumstances.
Therefore, the interpretation of Quranic provisions, as given by the Shia jurists, resulted in the formulation of altogether new principles of inheritance. Because of this difference in the approach to the interpretation of Quranic provisions, there has been a marked difference in the Sunni and Shia laws of inheritance.