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The Hanafi Law of Interstate Succession: A Simplified Approach

Published online by Cambridge University Press:  28 November 2008

Lucy Carroll
Lucy Carroll
Affiliation:
Centre for South Asian Studies, University of Cambridge
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Extract

There is no part of the sacred law … which is regarded with such pride by Muslims, or has been worked out by their jurists in such extravagant detail, such meticulous precision or such a spirit of religious devotion. There is even a famous dictum attributed to the Prophet that a knowledge of the shares allotted to the various heirs under this system is equivalent to half the sum total of human knowledge.

Type
Articles
Information
Modern Asian Studies , Volume 17 , Issue 4 , October 1983 , pp. 629 - 670
Copyright
Copyright © Cambridge University Press 1983

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References

The study and research on which this essay is based were made possible by a Fellowship awarded by the National Endowment for the Humanities, Washington, D.C., whose support is most gratefully acknowledged. I am indebted to Mr J. B. Harrison, School of Oriental and African Studies, University of London, for reading and commenting on the manuscript. Responsibility for facts, opinions, and interpretations rests, of course, with the author alone.

1 Anderson, J. N. D., ‘Recent Reforms in the Islamic Law of Inheritance’, International and Comparative Law Quarterly, 14 (1965): 349–65, p. 349.CrossRefGoogle Scholar

2 There are four surviving schools of Sunni jurisprudence: Hanafi, Shafi'i, Maliki, and Hanbali. The overwhelming majority of South Asian Muslims are adherents of the Hanafi school. A significant minority of Muslims in the subcontinent are Ithna Ashari Shias. For Ithna Ashari law on the subject, see: Carroll, Lucy, ‘The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law applicable in South Asia’, Modern Asian Studies, forthcoming.Google Scholar

3 Because of the restrictions imposed by Islamic law on the testate power of a Muslim, even when the propositus leaves a will the bulk of the estate will, in most cases, be distributed according to the rules of intestate succession.

4 Agnate = individual of either sex so related to the propositus that there is no intervening female link. E.g., the daughter is an agnate but the daughter's child is not; the son is an agnate as are also the son's son and son's daughter.

5 I.e. son's daughter, son's son's daughter, son's son's son's daughter, etc.

6 The father and the agnatic grandfather (father's father h.h.s.) may each inherit in a dual capacity, i.e., as both a Quranic heir and a male agnate.

7 There is one special situation where a woman (son's daughter h.l.s.) can become a co-sharer with a male of lesser degree; see Step 2(b) in ‘Mode of Distribution’ below.

8 See Step 2(a) in ‘Mode of Distribution’ below.

9 ‘Quranic heirs’ are frequently termed ‘sharers’ in the literature because of the specific fractional shares associated with each Quranic heir.

Further, it should be noted that the male agnatic heirs, the agnatic co-sharers, and the female agnatic heirs are often collectively termed ‘residuary heirs’ because they take the residue of the estate remaining after the Quranic heirs have taken their specific fractional entitlements. I prefer the former terminology because it indicates at once both why and how the heirs in each agnatic category participate in the inheritance.

10 The estate which is distributed to the heirs is the net estate, i.e. that remaining after payment of debts and medical and funeral expenses.

11 The situation may be easily visualized by reference to Diagram 2, where these three relatives are identified by asterisks.

12 The rule does not apply if instead of the father, the true grandfather is present.

13 This denominator is obtained by multiplying the number of sons by two and adding this sum to the number of daughters.

14 Note that the father (or, in his absence, the nearest true grandfather), although excluded de facto as an agnatic heir, will still participate in the inheritance as a Quranic heir.

15 For details see, e.g.: Tyabji, F. B., Muslim Law: The Personal Law of Muslims in India and Pakistan (Bombay: N. M. Tripathi Pvt. Ltd, 3rd edn, 1968), pp. 843–59Google Scholar. Saksena, K. P., Muslim Law as Administered in India and Pakistan (Lucknow: Eastern Book Co., 4th edn, 1963), pp. 926–37.Google Scholar

16 The masculine form includes the feminine throughout this discussion.

17 Unless the heirs agree otherwise, a Muslim cannot dispose of more than one-third of his estate by will; the remaining portion is distributed according to the rules of intestate sucession.

18 An exception being the rule in Ithna Ashari Shia law that a childless widow does not take any share in the landed property of her husband.

19 E.g., if the apostate from Islam adopted the Hindu faith, his Muslim relatives would not be heirs to him under Hindu law, which would govern the devolution of his estate.

20 For the Ahmadi issue see: Report of the Court of Inquiry … into the Punjab Disturbances of 1953 (Munir Report) (Lahore: Superintendent Govt. Printing, 1954Google Scholar); Ahmad, Khurshid (ed. and trans.), An Analysis of the Munir Report (Karachi: Jamaat-i-Islami Publications, 1956).Google Scholar

21 Added by Constitution (Second Amendment) Act, 1974.

22 Shihabuddin Imbichi Koya Thangal v. K. P. Ahammed Koya, AIR 1971 Kerala 206.

23 Muhammad Ashraf v. Mst. Niamat Bibi, P.L.D. 1981 Lahore 520.Google Scholar

24 For a discussion see: Fyzee, A. A. A., Outlines of Muhammadan Law (Delhi: Oxford University Press, 4th edn, 1974), pp. 189–97Google Scholar. Tyabji, , Muslim Law, pp. 199–211Google Scholar; Saksena, , Muslim Law as Administered in India and Pakistan, pp. 299–314.Google Scholar

25 For a discussion of the batil, fasid, and sahih classification of marriages see: Verma, B. R., Muslim Marriage and Dissolution (Allahabad: Law Book Company, 1971), pp. 298–329Google Scholar. Anderson, J. N. D., ‘Invalid and Void Marriages in Hanafi Law’, Bulletin of the School of Oriental and African Studies, 13 (1949/1950): 357–66.CrossRefGoogle Scholar

26 As Quranic heirs; the son's daughters may be brought in as agnatic co-sharers if the male agnatic heir is a son's son (‘lucky’ agnatic co-sharer).

27 See Carroll, Lucy, ‘Nizam-i-Islam: Processes and Conflicts in Pakistan's Programme of Islamisation, With Special Reference to the Position of Women’, Journal of Commonwealth and Comparative Politics, 20 (1982): 57–95.CrossRefGoogle Scholar

28 And should anyone undertake such work, I would greatly appreciate being informed of the results of their research.