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INTRODUCTION

Inheritance is the entry of living persons into possession of dead persons


‘property and exists in some form wherever the institution of private
property is recognized as the basis of the social and economic system. The
actual forms of inheritance and the laws governing it, however, differ
according to the ideals of different societies.

The law of inheritance in Islam is based upon five main considerations.


First is to break up the concentration of wealth in individuals and spread it
out in society. Secondly, it is to respect the property right of ownership of
an individual earned through honest means. It also considers hammering in
the consciousness of man the fact that man is not the absolute master of
wealth he produces but he is its trustee and is not, therefore, authorized to
pass it on to others as he likes. It also aims to consolidate the family
system which is the social unit of an Islamic society and to give incentive to
work and encourage economic activity as sanctioned by Islam.

Prior to Islam, and within the Arabian Peninsula, the system of inheritance
was confined to male descendants. Women not only did not have any
share of inheritance, but they themselves were inheritable too. Siblings
from the mother's side, like half-brothers or half-sisters, were completely
excluded. Other Semitic cultures also practiced primogeniture, under which
all property went to the eldest male child.

The Qur'an introduced a number of different rights and restrictions on


matters of inheritance, including general improvements to the treatment of
women and family life. The Qur'an also presented efforts to fix the laws of
inheritance, and thus forming a complete legal system. This development
was in contrast to pre-Islamic societies where rules of inheritance varied

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considerably. Furthermore, the Qur'an introduced additional heirs that were
not entitled inheritance in pre-Islamic times, mentioning nine relatives
specifically of which six were female and three were male. The laws of
inheritance in the Qur'an also included other male relatives, like the
husband and half-brothers from the mother’s side, which were excluded
from inheritance in old customs. In general, the Qur'an improved the status
of women by identifying their share of inheritance in clear terms. It also
completely forbade the practice of inheriting widows. Joseph
Schacht states that "this is not meant as a regular legal ordinance, but is
part of the Qur'anic endeavor to improve the position of women.” The
Qur'an does not explicitly mention the shares of male relatives, such as
the decedent's son, but provides the rule that the son's share must be twice
that of the daughter's. Muslim theologians explain this aspect of inheritance
by looking at Islamic law in its entirety, which bestows the responsibility and
accountability on men to provide safety, protection and sustenance to
women.

In addition to the above changes, the Qur'an grants testamentary powers to


Muslims in disposing their property, in their will, called “waṣeyya”; Muslims
are allowed to give out a maximum of one third of their property. Muslims
are also encouraged to give money to the orphans and poor if they are
present during the division of property.

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RECENT DEVELOPMENTS

The Qur'an contains only three verses which give specific details of
inheritance and shares, in addition to few verses dealing with testamentary
power. It has also been reported in Hadith that Muhammad allotted great
importance to the laws of inheritance and ordered his followers to learn and
teach them. Muslim jurists used these verses as a starting point to expound
the laws of inheritance even further using Hadith, as well as methods of
juristic reasoning, like Qiyas. In later periods, large volumes of work have
been written on the subject.

This amalgamation of old agnatic customs and Islamic Law led to a number
of problems and controversies that Muslim jurists have solved with great
ingenuity. Through the use of deductive reasoning, Muslim jurists added
three additional heirs: the paternal grandfather, maternal grandmother, and
agnatic granddaughter. These heirs, if entitled to inherit, are given their
fixed shares and the remaining estate is inherited by the Residuaries. In
some cases, they have also upheld the rule of men having twice the share
of women in circumstances not readily mentioned in the Qur'an, and tried
to deal with complex cases in a variety of different contexts.

This led to some minor differences between jurisprudence schools of the


Sunni maddhabs. Also, the laws of inheritance for Twelver Shia, despite
being based on the same principles, differ in a number of features due to
the rejection of certain accounts of Hadith and based on their
understanding of certain events in early Islam. On the other hand, the
system of inheritance of the Kharajite Ibadis and Zaidis closely resemble
that of the Sunni system. In modern Muslim countries, usually a mixture of
different schools of jurisprudence (including Shia) is in effect, in addition to
a number of important reforms to the traditional system. The main
achievements of such modern systems were the codification of inheritance
laws.

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All the modern writers have admired the Muslim system of inheritance for
its utility and formal excellence. Muslim law of inheritance is based on the
rules laid down in Qur’an or through the customs and usage prevalent
among the Arabs. In the pre-Islamic world the law of inheritance had so
many evils in it. Women had been completely denied the share of
inheritance. They were rather regarded as part of the property of the
deceased and, therefore, their right to property by inheritance was out of
question. In pre-Islamic Arabia and other countries where there had been
tribal societies not only women were deprived of the right of inheritance but
even weak and sick persons and minor children were given no share in it,
as the common principle of inheritance was that he alone is entitled to
inherit who wields the sword. Then in certain societies there had existed
the law of primogeniture and it exists even today in some of the so-called
civilized parts of the world which entitles only the eldest son to inherit the
whole of the father's property or to get the lion's share.

Islam introduced so many reforms in the laws of inheritance for the


betterment of Muslim lives equally. It defined and determined in clear-cut
terms for the share of each inheritor and imposed limits on the right of the
property-owner to dispose of his property according to his whim and
caprice. It made the female, who had been previously thought a chattel, the
co-sharer with the male and thus not only restored her dignity, but
safeguarded her social and economic rights. Husband and wife have been
made heirs. Parents and ascendants are given rights even when there is a
male descendent. It laid the rules for the break-up of the concentrated
wealth in the society and helped in its proper and equitable
distribution amongst a large number of persons. It gave a death-blow to the
law of primogeniture and thus provided the democratic basis for the division
of the property of the deceased.

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GENERAL RULES TO INHERITANCE
WITH EXCLUSIONS

Inheritance is considered as an integral part of Muslim Law and its


application in Islamic society is a mandatory. Muslims inherit from one
another as stated in the Qur’an. Hence, there is a legal share for relatives
of the descendents in his estate and property. The major rules of
inheritance are detailed in Qur’an and Hadith.

Following are the major rules of the Muslim law of Inheritance:-

1. When a Muslim dies there are four duties which need to be


performed, viz. Paying funeral and burial expenses, paying off the
debts, execute the testamentary will of the deceased (which can only
be a maximum of one third of the property), and distribute the
remainder of estate and property to the relatives of the deceased
according to Shariah Law. After such expenses, remaining property
is considered for distribution. Such property includes movable as well
as immovable properties. There is no distinction between Ancestral
property and Self-acquired property.
2. There is no right of inheritance gained by mere birth. Such right will
be a mere chance of survivorship and the property share. Illegitimate
person does not inherit from father or son. Similarly, child of a
divorcee inherits from his mother and not from father. Such child also
will be treated on the same footing of illegitimate person.
3. The allotted share of the property will be allotted immediately after the
death of the ancestor.
4. In case of death of heir on whom the share of property is already
vested, such share shall be passed on to his/her heir. However, if the
ancestor (also called as propositus) is alive and any of his
presumptive heirs die, then the share of such deceased heir will not

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be passed on to his / her heirs. It would be still the property of the
ancestor / propositus, who is alive.
5. Missing heirs will be given their respective shares if they reappear at
the time of such distribution, or else, they would be considered dead.
6. A child in a womb is deemed to be born on the date of conception
and if born alive, such child will get share or otherwise such share
will be distributed among others.

There are exclusions to the rule of inheritance. It is called as rule of


total and partial exclusion. Every person is entitled to inherit under
Muslim Law, unless there is something to exclude him. There are two
major exclusions, viz. Partial (also known as imperfect) exclusions and
Total (also known as perfect) exclusions. In Islamic law, only relatives
with a legitimate blood relationship to the deceased are entitled to
inherit. Thus, illegitimate children and adopted children have no shares
in inheritance. In general, a full brother will exclude
a consanguine brother, but not uterine brother. In case where a
deceased man leaves a pregnant woman, the unborn child's share will
be reserved. Also a woman during the time of waiting (iddat)
after divorce is considered as a wife of the deceased for purposes of
inheritance. There are even further rules of exclusion and inclusion of
different relatives. The only "practical situations" which may cause
disqualification are differences of religion and homicide. But schools of
Islamic jurisprudence differed whether a Muslim can inherit from a non-
Muslim or not. All the jurists agree that intentional or unjustifiable killing
would exclude a person form inheritance. Four persons cannot get
inheritance:-

 A fugitive slave who has fled away from his master,


 One who has murdered one’s predecessor intentionally or un-
intentionally,
 One who professes a religion other than Islam,
 One living in Dar-ul-Harb cannot inherit the property of one living in
Dar-ul-Islam, and vice versa.

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TYPES OF HEIRS
AND
THEIR RESPECTIVE SHARES

The first step in the distribution of the estate of a deceased


Mohammedan after payment of his mentioned expenses is to allot the
respective shares to such of the relations as belong to the classes of
heirs. Hanifa Jurists have divided heirs into 7classes; 3 Principle and 4
Subsidiary Classes. In principle classes, there are Qur’anic heirs (also
called Sharers), Agnatic heirs and uterine heirs. Subsidiary heirs are
Successor by contract, Acknowledged Kinsman, Sole legatee and the
state. There are 5 primary heirs viz, Husband or wife, son, daughter,
father and mother. According to Islam, the heirs have been divided into
three classes.

1. Dhaw-u'l-Fara'id:-

This category is also known as “Sharers”. These are those persons


who have a right to definite shares in assets left by the deceased.
These sharers are twelve in number, including four males (father,
grandfather, uterine brothers and husband); and eight females (wife,
single daughter, son's daughter, mother, grandmother, full sister,
consanguine sister, uterine sister).

Father's share is one-sixth when the deceased leaves a son or a


son's son, but if the deceased is not survived by a son or grandson
his father will, in addition to this share (one-sixth), also get a share of
being 'Asaba.

The grandfather's share is like that of father's share but in three


conditions:-According to Imam Bukhiri and Imam Muslim, the
presence of father deprives even the brothers of their share in the
inheritance. But this is not the case with the grandfather. Imam Abu
Hanifa is of the opinion that the presence of grandfather deprives the
brother of his share in the inheritance.

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If the father of the deceased is alive, then the share of the mother is
of what is left from the share of the wife of the deceased. The
presence of grandfather does not reduce the share of the mother of
the deceased. The grandmother of the deceased has no share in the
presence of the father of the deceased but she has a share in the
presence of the grandfather.

The third set of sharers is uterine brothers and sisters. They are
entitled to one-sixth if their number is one, and one-third if they are
more than one.

The husband's share is one-half of the property of the deceased wife


if she has no children, but in case of children it is one-fourth. The wife
is entitled to one-fourth if the husband dies childless; otherwise it is
one-eighth.

Real daughter: one-half when alone, and two-thirds if more than one.
If the deceased is survived by a male child also, the daughters are
then treated as Asaba and the male child would get double of what
falls to the lot of daughters. The granddaughters stand on the same
level as daughters. But in case the deceased is survived by one real
daughter and one or more than one granddaughter they would get
one-sixth. The granddaughter is not entitled to any share if the
deceased is survived by a son, but if he is survived by grandsons and
granddaughters, they would be treated as 'Asaba and the male
grandchild would get double of what goes to the female grandchild.
Full sister gets one-half if she is alone and two-thirds if they are more
than one. Consanguine sister is entitled to one-half if one, and two
thirds if more.

Mother is entitled to one-sixth when she has a child or grandchild,


and in case of being childless she gets one-third of the share. If the
deceased is survived either by paternal grandmother or maternal
grand- mother or even by both, they are entitled to one-sixth. The
grandmother (maternal) is deprived of her share if the mother of the
deceased is alive; and if father is alive the paternal grandmother is
deprived of this share.

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2. Asabat:-

This category is also known as “Residuaries”. When the heirs of the


first group have received the respective shares, the residue of the
assets falls to the share of those relatives who are called Asaba
which, according to the Shari'ah, implies those relatives in whose line
of relationship no female enters. This is the second group of
inheritors.

There is no fixed share of the 'Asabat. If the deceased is not survived


by any Dhaw-u'l-Fara'id, the whole of the property falls to their share;
and If Dhaw-u'I.Fara'id are there to get their due share, the residue
will be taken by the Asabat.

Son is the first asabat to get the residue in order of succession. The
daughters are entitled to half of the share as given to the son. The
grandsons are not entitled to any share in the presence of the son. If
the son is not living, then the grandson is entitled to gain share in the
inheritance. If there is more than one son, the inheritance will be
distributed equally amongst them.

The father, grandfather and the great-grandfather are included in the


category of Dhaw-u'l-Fara'id. If, however, the deceased is not
survived by category of a son, grandson of great-grandson, then the
father will fall under the category of 'Asaba, and, in the absence of the
father, the grandfather assumes that position.

If the deceased is not survived by son, or grandson or father or


grandfather, i.e. none amongst the 'Asabat, then the brother, and in
the absence of brother his son, and in the absence of son, his
grandson will be entitled to share in the inheritance as 'Asaba and the
female would also join them in share claiming half of the share as
compared with male.

If unfortunately the deceased is survived by none of the above-


mentioned relatives amongst the 'Asabat, then consanguine brother
will be entitled to share in the inheritance and he will be preferred to
full brother's son. Then it comes the turn of full paternal uncle.

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3. Dhaw-u’l-Arham:-

The last category of inheritors is known as “Distant-Kindred”, i.e.


relations connected through blood who are neither sharers nor
Residuaries, like relations connected through females, but it is in
extremely rare cases that they get any share in the inheritance. The
following relatives come under this category.
 The son of the daughter and daughter of the daughter.
 The son of the daughter of the son, and daughter of the daughter
of the son and their children.
 Maternal grandfather, maternal grandfather of the father, the
grandfather of the mother, maternal grandfather of the mother, the
grandmother of the mother, the children of the sisters, the sisters
of the father and those of the mother, etc.

SHARES OF HEIRS

Share
Heir Conditions Exclusion
One Two or more

When there is
1/4 NA a child or NA
son’s child
Husband
When there is
1/2 NA no child or NA
son’s child

When there is
1/8 1/8 a child or NA
son’s child
Wife
When no
1/4 NA child or son’s NA
child

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When there is
1/6 NA son or son’s NA
son

When there
are one or
more
daughters, Father is a
Father 1/6 plus residue son’s sharer and
daughters residuary
and there is
no son nor
son’s son

When there is
Absence of
Residue no child or
any child
son’s child

When there is
a child or Excluded by
son’s child father or
1/6 NA
and no father nearer true
or nearer true grandfather
grandfather

When there
True
are
Grandfather
1/6 plus residue Daughters or NA
only son’s
daughters

When there is
a Wife or Converted by
Residue
husband and father
father

When there is
a child or
Mother 1/6 NA son’s child or NA
two or more
brothers or
sisters or
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brother or
sister and
father

When there is
no child, nor
son’s child
1/3 NA and not more NA
than one
brother and
sister

When there is
a wife or Converted by
1/3 plus residue
husband and father
father

When no
Maternal
mother or no Mother,
Grand Mother
1/6 NA nearer Paternal True
(How high so
Paternal Grandmother
ever)
grandmother

When no
mother or no Mother,
nearer Maternal or
Paternal
Maternal or Paternal
Grand Mother
1/6 NA Paternal grandmother
(How High So
grandmother or father or
ever)
or father, or true
nearer true grandfather
grandfather

When there is
½ 2/3 NA
no son
Daughter Converted by
Residue son or two or
more sons

1/2 2/3 When there is Excluded by


Son’s
no son or son or son’s

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Daughter son’s son or son of higher
one or more grade, or two
daughters or or more
higher son’s daughters or
daughter two or more
son’s
daughters of
higher grade,
or one
daughter with
two or more
son’s
daughters or
higher grade

Excluded by
son or son’s
son of higher
grade, or two
or more
When there is
daughters or
no son or
two or more
son’s son or
son’s
1/6 NA one or more
daughters of
daughters or
higher grade,
higher son’s
or one
daughter
daughter with
two or more
son’s
daughters or
higher grade

Converted by
son’s son of
Residue
equal or even
lower grade

When no Excluded by
child or son’s Son or son’s
Full Sister 1/2 2/3
child or father so, father or
or brother true

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grandfather,
daughter or
son’s
daughter

Converted
due to full
brother or
Residue daughters or
son’s
daughters, full
sisters

When no
Excluded by
child or Son’s
Son, Father,
child ( How
or True
½ 2/3 Low So ever),
Grandfather,
or father or
or full brother
brother or full
or full sister
sister

Excluded by
one or more
Consanguine daughters or
Sister When one full son’s
1/6 NA
sister only daughters or
by two or
more full
sisters

Converted in
to Residuary
Residue by
consanguine
brother

Excluded by
Son or Son’s
Uterine Son, father or
½ 1/3
Brother true
grandfather or
daughter or
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son’s
daughter

Excluded by
Son or Son’s
when no child Son, father or
or (How Low true
Uterine Sister 1/6 NA
So ever) grandfather or
son’s child daughter or
son’s
daughter

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DOCTRINE OF AUL

It means the doctrine of decrease. In certain circumstances of allotment of


share, it may be followed that the total of the share exceeds unity. Then the
fraction allotted to each heir will have to be reduced ratably. This doctrine
refers to the process of reducing the share proportionately.

This doctrine is recognized by Hanifa law and not by Shia Law.

DOCTRINE OF RADD

It means the doctrine of return. In some circumstances, the total of the


fractions may be less than unity. There may not be any heir belonging to
the residuary to take the residue. In such cases, the residue is returned to
the sharer in proportion to their share. This is called Doctrine of Radd.

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WOMEN AND INHERITANCE

In Islam, women are entitled the right of Inheritance. In general


circumstances, though not all, Islam allots women half the share of
inheritance available to men who have the same degree of relation to
the decedent. For example: - where the decedent has both male and
female children, a son's share is double that of a daughter's. Additionally,
the sister of a childless man inherits half of his property upon his death,
while a brother of a childless woman inherits all of her property. However,
this principle is not universally applicable, and there are other
circumstances where women might receive equal shares to men. For
example:-the share of the mother and father of a childless decedent. Also
the share of a uterine brother is equal to the share of a uterine sister, as do
the shares of their descendants.

Sometimes woman gets double share then share of man, for example if
there are only parents and husband, husband will receive half, father gets
1/6 and mother gets 2/6. Also the Qur'an does not discriminate between
men and women in cases of kalalah relation. Kalalah describes a person
who leaves behind neither parents nor children; it also means all the
relatives of a deceased except his parents and children, and it also denotes
the relationships which are not through [the deceased’s] parents or
children. Islamic scholars hold that the original reason for these differences
is the responsibilities allotted to spouses. A husband in Islam must use his
inheritance to support his family while a wife has no support obligations.
Additionally, Arab society traditionally practiced the custom of bride
price or dower rather than dowry; i.e., the man paid a gift to his wife or her
family upon marriage, rather than the opposite, placing a financial burden
on men where none existed on women. This custom received Islamic
sanction.

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DISTINCTION BETWEEN
SUNNI AND SHIA LAW OF INHERITANCE

Sr.
SUNNI LAW SHIA LAW
No.

Priority of agnates over Deny any priority to agnates


1.
cognates. over cognates.

Give importance and preference


2. Treat all equally.
to full blood over half blood.

Disregard the details of Sunni


Give importance to the decisions
system which rests on the
3. of the three Caliphs-Abu Bakr,
decisions of the three Caliphs-
Umar and Usman.
Abu Bakr, Umar and Usman.

Interpret Qur’an as altering the


Interpret Qur’an strictly, keeping old principles themselves and
4.
rules intact. giving rise to new set of
principles.

5. Preference to male over female. Both are on equal footing.

The classification becomes


Follow strict classification of
6. important only in cases of
heirs given in Qur’an.
quantum of shares.

Method of interpreting Qur’an is Method of interpreting Qur’an is


7.
literal. characteristic.

Distant Kindred are postponed in


Distant Kindred inherit along
8. favour of sharers and
with sharers and Residuaries.
Residuaries.

Doctrine of Aul is applicable to Doctrine of Aul operates against


9.
all sharers alike. daughter and sister only.

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Doctrine of Radd does not apply
to wife and husband in presence Except India, Doctrine of Radd
10. of any other heirs. However, in is not applicable to wife under
absence of sharers, both get by any circumstances.
return.

Principle “nearer in degree Principle ”nearer in degree


11. excludes more remote” excludes remote” applicable to
applicable to only agnatic heirs. all, without distinction.

Observe such distinction in


No distinction between real and case of Childless widow who is
12.
personal property. not allowed to take husband’s
immovable property.

Do not recognize right of elder Recognize right of eldest son up


13. son getting preference over to deceased father’s sword,
younger ones. wearing apparel and Qur’an.

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CONCLUSION

The law of succession in India falls within the realm of personal law. Due to
this, we have so many different succession laws, each purporting to reflect
the diverse and differing aspirations, customs, and mores of the community
to which the statute in question applies. The primary source of the Muslim
law of succession flows from the Holy Koran. In addition, the Ijmas, the
Sunnas, and the Qiyas, from all of which rules pertaining to succession can
be gleaned.

The Muslim law of inheritance is a superstructure constructed on the


foundation of pre-Islamic customary law of succession. The divine justness
and equitability of the Islamic laws of inheritance have been correctly
appreciated by many non-Muslim scholars such as Professor Almaric
Rumsey (1825-1899) of King's College, London, the author of many works
on the subject of the Muslim law of inheritance and a barrister-at-law, who
stated that the Muslim law of inheritance, "comprises beyond question the
most refined and elaborate system of rules for the devolution of property
that is known to the civilized world.

To understand the Islamic laws of inheritance as a whole it is necessary to


consider the system of inheritance that operated within the Arabian
Peninsula, prior to the revelation of the Quranic injunctions on inheritance.
Although we do not have the exact details of the system that operated prior
to the Quranic revelations we do know that the system of inheritance was
confined to the male agnate relatives ("asaba") of the deceased. In this old
customary system only the male agnates (asaba) were entitled to inherit.
Amongst the male agnates there were rules of priority, which determined
which of the surviving male agnates were entitled to inherit. It is likely that
the rules of priority that operate amongst the asaba in Sharia are a carry-
over of the old customary agnatic system. In Islamic law the son takes

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priority over the father who in turn takes priority over the brothers who in
turn take priority over the paternal uncles.

As we shall see the Quran does not expressly state the share of the male
agnate relatives as such, although it does enact that the share of the male
is twice that of a female. The Sunni jurists take the view that the intention of
the Quranic injunctions was not to completely replace the old customary
agnatic system entirely but merely to modify it with the objective of
improving the position of female relatives. The Sunni Islamic law of
inheritance is therefore, an amalgamation of the Quranic law superimposed
upon the old customary law to form a complete and cohesive system.

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BIBLIOGRAPHY

Though primary source would be Qur’an, following books are referred for
better understanding

1. FAMILY LAW
By G.C.V. Subba Rao.

2. PRINCIPLES OF MOHAMMEDAN LAW


By Mulla.

3. MOHAMMEDAN LAW
By Tahir Mahmood.

WEBLIOGRAPHY

1. http://www.iium.edu.my/deed/hadith/muslim/011_smt.html
Visited on 26th December, 2013.

2. http://www.lawyersclubindia.com/articles/-8220-SUCCESSION-
UNDER-HANAFI-LAW-8221--424.asp#.UryTq9IW2Xo
Visited on 26th December, 2013.

3. http://www.muslimpersonallaw.co.za/Inheritance%20according%20to%
20Islamic%20Sharia%20Law.pdf
Visited on 26th December, 2013.

4. http://www.kantakji.com/fiqh/files/mawareeth/4015.pdf
Visited on 23rd December, 2013.

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