Posted by Prem on Thursday, September 29, 2011 | Tags : Estate Planning
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The Muslim law of succession is a codification of the four sources of Islamic law, which are (1) The Holy Koran itself, (2) The Sunna — that is, the practice of the Prophet, (3) The Ijma — that is, the consensus of the learned men of the community on what should be the decision on a particular point, and (4) The Qiya — that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.
The Muslim law recognizes two types of heirs, the first being Sharers, and the second being Residuaries.
A relative who is a Sharer will take a specified portion of the deceased’s estate irrespective of anything else. A relative who is a Residuary will take whatever is left over, once the Sharers have taken their specified shares.
The Holy Book in Sura 4 Verse 7 says, “From what is left by parents and close relatives, there is a share for men and a share for women, whether the property left behind be small or large — and this share shall be fixed.”
The Sharers are 12 in number and are as follows:
(1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son’s son or son’s son’s son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister, (11) Uterine sister, and (12) Uterine brother.
Any attempt to set out the exact share of each such Sharer and its fluctuation depends on various factors. The share taken by each sharer will fluctuate in certain circumstances:
A wife takes a one-fourth share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife’s estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise.
A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds. However, these two rules apply only in cases where the deceased has
left behind no sons.
If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become Residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.
Lineal descendants (such as sons) exclude brothers and sisters, and therefore, the share of brothers and sisters (whether full, consanguine or uterine) will become nil in the presence of such descendants.
Residuaries are those who are entitled to the estate, if any, left after the sharers have received their respective shares. Of course, this is only a broad rule and there are several just and equitable exceptions to this rule. For instance, the existence of certain relations who fall under the category of Residuaries has the effect of totally excluding certain other relations who fall under the category of Sharers.
If a Muslim gentleman dies, leaving behind his widow, a sister and a son, one would expect that the widow and the sister, being Sharers, would first take their specified share (one eighth and one half respectively) and that the son would take the balance (A son is a residuary, as we shall presently see).However, this does not happen. What happens instead is that though the sister is a sharer, the existence of a son, totally excludes her, leaving her with no share at all. The effect of this is that the widow takes an eighth and the son takes the residue, that is to say, seven eighths.
The list of Residuaries is quite lengthy. At the head of the list are the sons. Then, come their sons, and further lineal descendants in the pure male line, all of whom are Residuaries. Next in the list are the fathers, their fathers, and further lineal ascendants in the pure male line in that order. The next two entries in the list of Residuaries are full brothers and consanguine brothers. Then come those brothers’ sons, and the sons of those sons and further lineal descendants. Then come the full and consanguine brothers of the deceased’s father (that is to say, paternal uncles). Then come the sons of those paternal uncles, the sons of the sons of those paternal uncles and so on. Then, come paternal grand uncles who are related either fully or consanguinely.
Now, the order of priority given in this list is very important. The reason for this is that a residuary higher up in the order, excludes all others below him in the order.
Please also note that when there are certain corresponding female heirs for certain of the Residuaries (such as daughter-son, granddaughter-grandson and so on), then those female heirs succeed as Residuaries (giving up their share as sharers) and succeeding to the residue of the estate along with the listed Residuary, but only receiving half of what the male receives.
For instance, a Muslim gentleman dies leaving behind his widow, a son, a daughter and a brother. From the table of Sharers, one would assume that his wife would take one-eighth, his daughter would take one half and that the residue would go to the son and brother. This does not happen. The widow takes the one eighth that she is entitled to. The daughter, in the presence of the son, ceases to be a sharer, and becomes a residuary, entitled to half of the extent of the residue that the son succeeds to.
The son and daughter, being higher up in the table of Residuaries than the brother, exclude the gentleman’s brother altogether. Thus, of the residue of seven-eighths, the son and daughter succeed in a 2:1 ratio, taking thereby, 7/12 and 7/24 respectively.
Failing any Sharers or Residuaries, the next level of relations who would succeed to the estate of a deceased Muslim male or female, are a class of persons known as Distant Kindred. We do not propose to go into this at all, since this would only serve to lengthen what is already a long column.
This is the law of succession to Muslim men and women who die intestate. Please note that there is no concept of ancestral property or rights by birth in the case of Muslim succession, as we had seen in the case of Hindu succession. The rights that a Muslim’s heirs acquire upon his death are fixed and determined with certainty on that date and do not fluctuate.
Let me also refer to another very prominent case of the Nizam of Hyderabad and his model wife over divorce and inheritance rights for their daughter. It provides an interesting insight into the lives of the rich and the famous!
Manolya Onur, the Nizam’s ex- his third wife claims that after their divorce, he had promised a mehr of $700,000 during the nikaah. He had also made an agreement in Geneva that the Chiran palace fort would go to Niloufer, their daughter, after his death. According to Manolya, the Nizam has hired six lawyers from London to fight the case, even though he claims that he does not have the money to pay for his daughter’s education. He has managed to pay $2 million for the restoring of the Chowmallah Palace, which they have opened to the public. They have also signed a contract with the Taj Group to convert Falaknuma Palace into a luxury hotel. Inspite of all this money coming in, when it comes to his daughter, he is penniless.” Inspite of all the bickering and the hardship that Manolya went through, she has been awarded $3.4 million as divorce settlement.
The court also directed the Turkey-based Nizam, grandson of seventh and last ruler of the erstwhile Hyderabad state, not to sell the Chiran and Falaknuma palaces here. It, however, refused to pass orders directing the handover of the Chiran palace to Niloufer.