Muslim personal law in India is broadly divided into two main schools — Sunni law and Shia law. These two schools represent the two major sects of Islam and differ significantly in their approach to various aspects of personal law, including inheritance. Both schools derive their rules of inheritance from the same primary sources — the Holy Quran, Hadith (sayings of Prophet Muhammad), and Ijma (consensus of scholars) — but they interpret these sources differently, leading to important differences in the rules of inheritance.
In India, Muslim personal law is largely uncodified and is applied by courts based on the classical texts of Islamic jurisprudence. The Shariat Application Act, 1937 applies Muslim personal law (including inheritance) to Muslims in India. The applicable school (Sunni or Shia) depends on the sect to which the deceased belonged.
Understanding the differences between Sunni and Shia inheritance law is extremely important for law students and practitioners dealing with Muslim personal law in India.
Background — Sunni and Shia Schools
Sunni School
The Sunni school is the largest sect of Islam, comprising approximately 85-90% of Muslims worldwide. In India, the majority of Muslims follow the Sunni school. The Sunni school is further divided into four sub-schools or Madhabs:
- Hanafi (followed by most Indian Sunni Muslims)
- Maliki
- Shafi'i
- Hanbali
Shia School
The Shia school comprises approximately 10-15% of Muslims worldwide. In India, Shia Muslims are found mainly in Uttar Pradesh, Bihar, and other parts of northern India. The main sub-schools of Shia law relevant in India are:
- Ithna Ashari (Twelver Shia) — the most common in India
- Ismaili
- Zaidiyya
Fundamental Differences in the System of Inheritance
1. Classification of Heirs
Sunni Law: Sunni law classifies heirs into three main categories:
(a) Sharers (Quranic Heirs / Ashab-ul-Furud) — These are heirs who are entitled to a fixed fractional share of the deceased's estate as specified in the Holy Quran. There are 12 Quranic sharers including:
- Husband
- Wife
- Daughter
- Daughter of son
- Father
- Grandfather
- Mother
- Grandmother
- Full sister
- Consanguine sister
- Uterine brother
- Uterine sister
(b) Residuaries (Asabat) — These are heirs who take the residue of the estate after the sharers have received their fixed shares. Residuaries are generally agnatic relatives — relatives connected through males. The most important residuary is the son.
(c) Distant Kindred (Dhawul Arham) — These are relatives who are neither sharers nor residuaries. They inherit only when there are no sharers or residuaries. Examples include maternal grandfather, daughter's children, sister's children, etc.
Shia Law: Shia law classifies heirs into three classes based on proximity of relationship:
(a) Class I — Consists of:
- Parents (father and mother)
- Children and descendants of children (sons, daughters, grandchildren)
(b) Class II — Consists of:
- Grandparents (paternal and maternal)
- Brothers and sisters and their descendants
(c) Class III — Consists of:
- Paternal and maternal uncles and aunts and their descendants
Under Shia law, heirs in a higher class completely exclude heirs in a lower class. This is fundamentally different from Sunni law where sharers and residuaries from different categories can inherit simultaneously.
2. Doctrine of Representation
This is one of the most significant differences between Sunni and Shia law of inheritance.
Sunni Law — No Doctrine of Representation Under Sunni law, there is no doctrine of representation. This means that if a son predeceases his father, the son's children (grandchildren of the deceased) are completely excluded by the deceased's other surviving sons. The grandchildren through a predeceased son get nothing if any of the deceased's sons are alive.
Example under Sunni Law: A Muslim man dies leaving two sons (B and C) and two grandchildren (D and E) through his predeceased son A. Under Sunni law, B and C take everything and D and E get nothing because they are excluded by B and C (surviving sons).
Shia Law — Doctrine of Representation Recognized Under Shia law, the doctrine of representation is recognized. The descendants of a predeceased heir can represent their deceased parent and take the share that their parent would have taken if alive.
Example under Shia Law: In the same example above, D and E together take the share that their father A would have taken — i.e., one-third of the estate. B and C each get one-third. So the estate is divided equally into three shares.
This difference has very significant practical consequences and can completely change the distribution of a Muslim's estate depending on which school applies.
3. Position of the Grandfather
Sunni Law: Under Sunni law, the paternal grandfather (called the True Grandfather) is treated as equivalent to the father in the absence of the father. He inherits as a sharer (getting 1/6) or as a residuary depending on the circumstances. However, under Sunni law, the grandfather is excluded by the father — if the father is alive, the grandfather gets nothing.
Importantly, under Sunni law, the grandfather does not exclude brothers and sisters of the deceased. Brothers and sisters can inherit alongside the grandfather.
Shia Law: Under Shia law, the grandfather belongs to Class II along with brothers and sisters. He is excluded by all Class I heirs (parents and children). Additionally, under Shia law, the grandfather excludes brothers and sisters — if the grandfather is alive, brothers and sisters get nothing. This is the opposite of the Sunni position.
4. Position of Uterine Relatives (Distant Kindred)
Sunni Law: Under Sunni law, distant kindred (Dhawul Arham) — relatives connected through females — are recognized as heirs but only in the absence of all sharers and residuaries. They form the third and lowest category of heirs.
Shia Law: Under Shia law, there is no separate category of distant kindred. All relatives — whether connected through males or females — are accommodated within the three-class system. Maternal relatives are given equal standing with paternal relatives within each class. This makes Shia law more gender-neutral in its approach to inheritance.
5. Rule of Exclusion — Doctrine of Hajb
Sunni Law — Doctrine of Hajb Under Sunni law, the doctrine of Hajb (exclusion) operates in two ways:
(a) Hajb-i-Hirman (Total Exclusion) — A nearer heir totally excludes a more remote heir. For example, a son excludes a grandson.
(b) Hajb-i-Nuqsan (Partial Exclusion) — A nearer heir reduces the share of another heir. For example, the presence of a son reduces the wife's share from 1/4 to 1/8.
Shia Law: Under Shia law, the rule of exclusion is simpler — heirs in a higher class completely exclude heirs in a lower class. Within the same class, nearer relatives exclude more remote relatives. There is no complex system of partial exclusion as in Sunni law.
6. Doctrine of Increase (Awl) and Return (Radd)
Doctrine of Awl (Increase) — When Shares Exceed the Estate
Sometimes in Sunni law, the total of all the fixed fractional shares given to the Quranic sharers exceeds 1 (i.e., exceeds the entire estate). In such cases, Sunni law applies the doctrine of Awl (increase) — all shares are proportionally reduced so that the total equals 1. This means each sharer gets less than his or her fixed share.
Shia Law rejects the doctrine of Awl. Under Shia law, if the shares exceed the estate, the daughters' shares are reduced first and the excess is distributed among other sharers. Shia law does not proportionally reduce all shares — instead it reduces specific shares.
Doctrine of Radd (Return) — When Shares are Less than the Estate
Sometimes the total of all fixed fractional shares is less than 1, leaving a residue. If there are no residuaries, the residue must go somewhere.
Sunni Law — The residue goes back to the sharers (excluding the husband and wife) in proportion to their shares. This is called Radd (Return). However, under Hanafi Sunni law, the husband or wife does not participate in Radd.
Shia Law — The doctrine of Radd operates more broadly. Even the husband and wife participate in Radd under Shia law. This is a significant difference from Sunni law.
7. Rights of the Husband and Wife
Sunni Law:
Husband's share:
- 1/2 if the deceased wife left no children or child of son
- 1/4 if the deceased wife left children or child of son
Wife's share:
- 1/4 if the deceased husband left no children or child of son
- 1/8 if the deceased husband left children or child of son
If there are multiple wives, they share the wife's portion equally among themselves.
Shia Law: The shares of husband and wife are the same as under Sunni law. However, as noted above, under Shia law, both husband and wife participate in Radd (Return) which is not the case under Hanafi Sunni law.
8. Bequests (Wassiyat) — Rights of Heirs
Sunni Law: Under Sunni law, a Muslim can bequeath a maximum of one-third of his estate by Will (Wassiyat). A bequest in favour of an heir is void unless all other heirs consent to it after the testator's death. This is the well-known rule: "No wassiyat in favour of an heir."
Shia Law: Under Shia law, a Muslim can also bequeath a maximum of one-third of his estate by Will. However, unlike Sunni law, under Shia law a bequest in favour of an heir is valid without requiring the consent of other heirs. This is a very important difference — Shia law allows greater testamentary freedom with respect to heirs.
9. Posthumous Child
Sunni Law: Under Sunni law, a posthumous child (child born after the father's death) is entitled to inherit from the father's estate. A share must be kept in reserve for the unborn child if the mother is pregnant at the time of the father's death.
Shia Law: Shia law also recognizes the right of a posthumous child to inherit. The rules are similar to Sunni law in this respect.
10. Murderer as Heir
Sunni Law: Under Sunni law, a person who murders the deceased is completely disqualified from inheriting from the deceased's estate. This rule is based on the principle that a person should not benefit from his own wrong.
Shia Law: Shia law takes the same position — a murderer is disqualified from inheriting from the person he has murdered.
Summary Table of Key Differences
| Point of Difference | Sunni Law | Shia Law |
|---|---|---|
| Classification of heirs | Sharers, Residuaries, Distant Kindred | Three Classes based on proximity |
| Doctrine of Representation | Not recognized | Recognized |
| Position of Grandfather | Does not exclude brothers | Excludes brothers and sisters |
| Distant Kindred | Separate category | Included within three classes |
| Doctrine of Awl | Recognized — all shares reduced proportionally | Not recognized — daughters' shares reduced |
| Doctrine of Radd | Husband and wife excluded | Husband and wife included |
| Bequest to heir (Wassiyat) | Void without consent of other heirs | Valid without consent of other heirs |
| Gender neutrality | Less gender-neutral | More gender-neutral |
Important Case Laws
1. Nawazish Ali Khan v. Ali Raza Khan (1948)
The Privy Council applied Sunni law and held that a bequest in favour of an heir is void under Sunni law without the consent of other heirs after the testator's death.
2. Mst. Husainbhai v. Akbar (1977)
The Supreme Court held that the one-third restriction on Wassiyat is a fundamental principle of Muslim personal law applicable to both Sunni and Shia Muslims.
3. Pathumma v. Kader (1965)
The Kerala High Court discussed the differences between Sunni and Shia law of inheritance and held that the applicable law depends on the sect to which the deceased belonged.
4. Shamsuddin v. Hasan Ali (1933)
The court applied Shia law and recognized the doctrine of representation, holding that grandchildren through a predeceased son are entitled to represent their father and take his share.
5. Baillie's Digest of Muhammadan Law
Though not a case, this authoritative text has been frequently cited by Indian courts as a reliable source of both Sunni and Shia law of inheritance.
Conclusion
The differences between Sunni and Shia law of inheritance are substantial and have important practical consequences for the distribution of property among Muslim heirs in India. The most significant differences relate to the doctrine of representation, the classification of heirs, the position of the grandfather, and the right to make bequests in favour of heirs. While both schools are rooted in the same primary sources of Islamic law, their different interpretations have led to two distinct systems of inheritance that continue to govern the lives of millions of Muslims in India. A thorough understanding of these differences is essential for any lawyer, judge, or student dealing with Muslim personal law in India.
Comments
Post a Comment