Under any law of intestate succession, two questions, that arise, are: (i) who are the heirs of the deceased, and (ii) to what share the heirs are entitled.
Muslim law-givers have gone into details in laying down the categories of the persons who are entitled to participate in the inheritance and the respective shares to which each category of heirs and heirs in each category are entitled to receive.
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Heirs:
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It may be recalled that the pre-Islamic customary law allowed only male agnates to succeed, and among the male agnates, the descendants were preferred to ascendants, and ascendants were preferred to collaterals. Further, no female was allowed to participate in the inheritance.
What Islamic law had done is to superimpose on this customary structure certain blood relations who are either equally near, or nearer, to the deceased than the customary heirs. Among these new heirs are certain females, and some ascendants and collaterals.
The spouse of the deceased is allowed to take a share in the inheritance, as a relation by affinity. Looked at in this perspective, apart from the spouses (husband or wife) of the deceased, the other heirs specifically mentioned in the Koran are at par with customary heirs.
Thus, son, or son’s son how low soever, is entitled to inherit under the customary law. The Koran superimposed daughter, son’s daughter or son’s son’s daughter how low soever, and gave her a specified share.
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It should be noted that daughter’s daughter, who is a cognate, and, therefore, remoter than the son or son’s son, is not included. Since son and daughter were included, it was logical to include mother and father. Similarly, since son’s son and son’s daughter were included, it was logical to include true grandfather and true grandmother. It was equally logical to include certain collaterals.
Thus, were included full and consanguine sisters, since full and consanguine brothers were heirs under customary law? For the same reason were included uterine brothers and sisters. To these newly created heirs, the Koran allots a specific share. These new heirs are commonly called “sharers”.
Fyzee prefers to call them “Koranic heirs”, since these heirs were created by the Koran. It is noteworthy that the fractional shares that are specified by the Koran are only six, namely 1/2, 1/4, 1/8, 2/3, 1/3 and 1/6.
The sharers are allotted their specified shares. Then whatever is left after allotting share to the sharers, the rest residue is divided among the customary heirs who have been accorded recognition by the Koran. These heirs are commonly called “residuaries”.
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This term came into vogue on the assumption that after giving specified shares to the sharers, whatever is left is given to them. Fyzee objects to this term, and prefers to call them “agnatic heir”.
In the scheme of heirs, it should be noticed that certain sharers become residuaries on account of the existence of certain other near relations. Thus, when the deceased has no child or child of a son how low soever, the father and the true grandfather become residuaries.
Similarly, the daughter becomes a residuary when the deceased has left behind a son, and the full sister becomes residuary when the deceased is survived by a full brother. This also applies to consanguine sister, when the deceased is survived by a consanguine brother.
The details of the scheme are examined below.
The Hanafi law lays down that in the absence of the sharers and the residuaries, the estate is passed to other relations who are called “distant kindred”. The distant kindred are those relations of the deceased who are neither sharers nor residuaries. Fyzee prefers to name them as “uterine heirs”.
On the failure of distant kindred, in modern India, the estate of the deceased goes to the State by escheat.