When a Mohammedan dies, the following there questions arise for consideration about the succession to his estate;
- Who are his possible heirs and successor?
- Who among he possible heirs and successors are entitled to inherit, i.e., who are his actual heirs?
- What shares are to be allotted to the actual heirs?
For this purpose the persons entitled to inherit or succeed are divided into:
(i) Relations by marriage and blood- These are gain sub-divided into three classes:
(a) Shares- There are twelve relations who have got certain prescribed shares.
(b) Residuaries- They are all male agnates (descendants, ascendants and collaterals) and only four females who are sharers but are converted into residuaries in some cases.
(c) Distant kindred- This class covers all other blood relations.
(ii) Unrelated successors- They are the (a) acknowledged kinsman, and (b) universal legatee.
Actual heirs or successors-
All possible heirs cannot succeed at one and the same time. Some have to be excluded by others. This results in the determination of what is called the "order of succession"These are:
(i) those by which some classes are first excluded by others(e.g., shares exclude residuaries, if their shares exhaust the estate, otherwise they together exclude distant kindred);
(a) Shares- Some sharers are excluded by other heirs and some are converted into residuaries.
(b) Residuaries- These are two sets of rules of exclusion-
(i) those which divide the residuaries into four classes and provide for exclusion of some classes by others.
(ii) those which determine preference within each class.
(c) Distant kindred- There are two sets of rules for them also-
(i) those which divide them into four classes and provide for exclusion of some classes by others:
(ii) those which determine preference within each class.
Sharers-
Sharers under Mohammedand Law are those relations whose shsares have been specifically fixed by Quran, that is to say, those relatives who get a fixed share of estate of the deceased.Fixing the shares of this class is the main contribution of Mohammedan Law to the pre-Islamic customary laws of inheritance in Arabia. In pre-Islamic days the shares of those relatives were either totally excluded or their shares were not fixed. Islam recognisign the preferential claim of this class, changed the old law and alotted fixed shares to each of these.
The first step in the distribution of the estate of a deceased Mohammedan after payment of his funeral expenses, debts and legacies, is to allot their respective shares to such of the relations as belong to the class of shares and are entitled to a share. The next step is to divide the residue (if any) among such of the residuries as are entitled to the residue. If there are no shares, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries. But there is one case in which the distant kindred will inherit with a sharer, and that is where the sharer is the wife or husband of the deceased. Thus, if a Mohammedan dies leaving a widow and distant kindred,the wife as sharer will take her share which is 1/4 and the remaining 3/4 will go to the distant kindred. And if a Mohammedan female dies leaving a husband and distant kindred, the husband as sharer will take his share 1/2 and the other 1/2 will go to the distant kindred.
The relations belonging to the class of sharers, Residuaries or distant kindred, are entitled to succeed to the inheritance, depending on the circumstances of each case. In the lifetime of a father, the father's father will get nothing , the father alone will succeed to the whole inheritance, though both of them belong to the class of sharers. In case the surviving relations be a son and a son's son, the son alone will inherit the property, to the entire exclusion of the son's son, though both of them belong to the class of residuaries. If the surviving relation belong to the class of distant kindred e.e., a daughter's son and a daughter's son's son, the daughter's son will succeed to the whole inheritance. It is a rule of succession that the nearer relations exclude the more remote.
For this purpose there are tow sets of rules. Those which provide what shares are to be allotted to the various claimants. There are different rules for this purpose for each class separately.
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