Inheritance Under Hanafi Law free essay sample

As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia law of succession and the Hanafi law of succession(Sunnis). Both these laws of succession form part of the common law of India and are recognized as having the force of law by virtue of the Shariat Laws (Application) Act. The Muslim law of succession is derived from the Sharia. The primary source of the Muslim law of succession flows from the Holy Koran. Apart from those issues which are directly addressed in the Holy Book, there are the Ijmas, the Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned. Under the hanafi law, the general rule of distribution of the estate is per capita and not per stripes. This is not only confined to descendants but is also applied to ascendants. 5|Page II. THE HANAFI LAW: general principles The Hanafis interpret the principles of customary law and Islamic law in such a manner as to blend them together in a harmonious manner; the customary, heirs are not deprived of their right of Inheritance in the estate of the deceased, but only a portion out of the estate is taken out and given to the heirs enumerated in the Koran. We will write a custom essay sample on Inheritance Under Hanafi Law or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page This means that the basic structure of customary succession, the rule of agnatic preference, is retained-the agnates are still preferred over cognates. The, Koranic succession takes the agnatic principles further by recognizing the right of female agnates. Thus, if there is a female agnate (as specified -in the Koran) near to a male agnate (as specified under the customary law), then, by virtue of nearness of her claim to take a share in the estate of the deceased, she is allowed to take a share. But thereby, the male agnate is not deprived of a share, and male agnate takes the residue. Or, where the female agnate and the male agnate are equally near to the deceased, then the male heir takes twice the share of the female heir. It is submitted that this principle implies not only to female agnates but also to male agnates(i. e. , those heirs who are made heirs by the Koran) ~ and it is wrong to generalize that the male heir as such always takes double share of a female heir. Thus, uterine brother and father as sharers do not take more than the uterine, sister and mother respectively. It should also be noticed that most of the newly created heirs are the near blood relations of the deceased who were ignored in the customary law. The Koranic imposition of new heir does not deprive the male agnates of their inheritance, but their rights are liable. To be affected if there exists a Koranic heir, if we examine the rights of the koranic heirs vis-vis the customary heirs, we find two situations: (i) The Koranic heir may be nearer to the customary heir. 1n such a case a specified portion of the estate is given to the Koranic heir at the first instance and then whatever is left to be given to the customary heir. If there is more than one Koranic heir, then all of them take their specified portions. and the residue goes to the customary heirs. For instance, when a deceased has left a daughter and a brother, the former will take 1/2 (as specified by the Koran) and the brother will take the residue which is 1/2. If the deceased had left two daughters and a brother, then, the daughters 6|Page together will take 2/3 (as specified by the Koran) and the brother will take the residue which is 1/3. (ii) The Koranic heirs and the customary heirs may be equally near to the deceased. In such a case double portion is given to the customary heir. In this situation the Koranic heir is a female of equal proximity with the customary heir, but she was disqualified under the customary law on account of her sex. Now she has been made to rank equally with the customary heirs in respect of the residue of the estate after the prior claim of the Koranic heirs are satisfied. As to the rights of heirs vis-a-vis each other, if the heirs of the same class differ from each other in their sex, they- inherit equally (here the principle of male taking twice the share of a female goes not apply). For instance, if a Muslim dies leaving behind father and mother, then each takes 1/6 of the estate. In this case neither can claim priority over the other on the basis of greater proximity or on the basis of customary law. \ The modifications thus made by the Koran as interpreted by the Hanafis are restricted to agnates, with a few exceptions where under some cognates, such as uterine brother and uterine sister, are also included. The modifications do not go to any collateral remoter than sisters. Further, these modifications in their application to relations other than descendants are hedged with exceptions. The Hanafis have so interpreted the Koranic rules that the customary heirs right to inheritance is not affected, though a slice of the estate is taken away for the Koranic heirs. Sometimes the customary heirs are also required to share the residuary estate with the Koranic heirs, and in that process, sometimes, no residue of the estate is left for them. (But this happens in a very few cases). Under the hanafi law, the general rule of distribution of the estate is per capita and not per stripes. 7|Page III. DEFINITIONS. Agnates. -An agnate is a. relation who is related to the deceased whole hrough males. Thus, the following are the examples of agnates, son, sons son,sons sons son, sons daughter, sons sons daughter, fathers father, fathers,mother, fathers fathers . father; fathers fathers,mother. Cognates. -A cognate is a relation who is related to the deceased through one, or more females. For example, the following are cognates: daughters son, daughters daughter, mothers father, fath ers mothers father. Collaterals. -Collaterals are descendants in the parallel lines from the common ancestor or ancestress. Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters, paternal aunts and uncles are agnate collaterals. Maternal uncles , aunts, uterine brothers and sisters are. Cognate, collaterals. Heir. A person who is entitled to inherit the estate of another after his deaths known as an heir. . . True grandfather. A male ancestor between whom and the deceased no female intervenes is known as the true grandfather. For instance, the fathers father, fathers fathers father and his father how high so ever are all the true grandfathers. . False grandfather. A. Male ancestor between whom and. he deceased, a female intervenes is. known as the false grandfather. For instance, mothers father, mothers father, father’s mothers father are false grandfathers. True grandmother. A female. Ancestor, between whom and the deceased no false grandfather intervenes are known as the true grand mother. Thus, father’ mother, mothers mother, fathers mothers mother, fathers fathers mother. Mother’s mothers m other are all true grandmothers. 8|Page False grandmother. -A female ancestor between whom and the deceased a false grandfather intervenes. Thus, mothers fathers mother is a false grandmother.