Complex subject explained with admirable lucidity Muslim Law of Succession - a guide

Author - A.H.G. Ameen

Al-Ameen Publishers, 34 1/5, St. Sebastian Hill, Colombo 12

110 pp, Price Rs. 500

AL-HAJ AMEEN must be congratulated for producing an extremely useful guide to a subject which has always been one of great difficulty.

In his introduction he observes that succession or "Mirath" is something that belongs to Allah and that when one inherits he does so in the path of Allah.

The science of "Mirath" in the sharia'at provides rules for determining who inherits and who is to be inherited, and what shares go to the heirs.

The death of a person brings about a transfer of most of his rights and obligations to persons who survive him and are called "wuratha" in Arabic, which means heirs and representatives.

Before the advent of Islam, women were treated as chattels without any freedom extended to them. Female babies were buried alive in Arabia during the period of 'jahiliya', the darkest period on earth.

During this period, the rules of inheritance excluded women from the inheritance of the estates left by their deceased relatives, because according to them only those who could go to the battlefield to defend the clan were allowed to inherit.

The Holy Quran brought in reforms through the messenger of Allah, the Holy Prophet, by way of amendments to the pre-Islamic laws which were not abrogated altogether.

The law of inheritance or succession in the Islamic jurisprudence is the most complex subject, and it is comprehensive and covers a very wide area of relations and provides for even remote members of the family.

The sharia'at rules relating to succession are a fusion of the ancient customary laws of Arabia with the amendments brought in by the Holy Quran and Hadith.

Status of women

The author has stressed that one of the most important changes brought about by Islam is related to the status of women.

The amendments effected by the Holy Quran are summarized as follows:- (a) Husband and wife were made heirs of each other; (b) Female agnates were made competent to inherit; (c) Parents and ascendants were given the right to inherit even where there are male descendants; and (d) A female was given one half of the share assigned to each male.

The general rule of sharia'at that a female takes only half of what is taken by a male through intestate succession has been criticized on the basis that the sharia'at discriminates against women.

This is a most unjust criticism in the context that this general rule is applicable only in regard to residuary heirs, and in fact it is the sharers who have the prior right to intestate succession.

It is necessary to stress that out of the 12 categories of sharers who are entitled to specific Quranic shares, only four are males, namely the husband of the deceased, the father of the deceased, the true grandfather of the deceased and the uterine brother of the deceased.

It is significant that there are eight categories of female sharers, namely, the wife or wives, the mother, the daughter, the son's daughter, the full sister, the consanguine sister, the true grandmother and the uterine sister of the deceased, who will have priority in the distribution of the estate vis-a-vis the residuaries.

This very clearly explodes the theory that there is discrimination against women in Islam in matters of succession.

Al Haj Ameen deals with the subject of succession in 12 lucid chapters. In Chapter 1, he observes that succession could be either testate, where the last will left by the deceased determines the manner in which the estate has to be distributed, or intestate, where the deceased has died leaving no lastwill and his or her heirs will have to be determined by Court.

Section 2 of the Muslim Intestate Succession Ordinance of 1931 simply declares "that the law applicable to the intestacy of any deceased Muslim who at the time of his death was domiciled in Sri Lanka or was the owner of any immovable property in Sri Lanka shall be the Muslim law governing the sect to which such deceased Muslim belonged".

Last will

It is a fundamental principle of the sharia'at that a person may not give away by last will more than a third of his estate to outsiders, or in other words at least two-thirds of the estate of a deceased person should be available for distribution among his intestate heirs.

However, in Sri Lanka the Wills Ordinance confers on any person the freedom to dispose even his entire estate by last will leaving nothing to the close relations like the spouse and children.

The question arose in Shariffa Umma v. Rahumathu Umma 14 NLR 464, whether the Wills Ordinance has the effect of shutting out the principles of sharia'at law, and unfortunately it has been held in that case that it is so, and that a person professing Islam may deprive his intestate heirs of share in his estate by the simple expedience of a last will.

This is shocking, considering the importance placed on the protection of the family by sharia'at law. This is also not a very satisfactory state of affairs because the law permits an application of sharia'at principles to deal with intestate successions while precluding an application of these very principles with respect to testate succession.

In Chapter 2 he deals with the Quaranic sharers in great detail. Quranic Sharers (Asab al-Fard) are those sharers who have been allotted a specific share in the Holy Quran. He explains the circumstances in which these sharers will be entitled to the specific shares allotted by the Holy Quran.

In Chapter 3 he deals with residuaries (Al Sabah), that is the heirs who take the residue of what is remaining after the Quranic sharers take their prescribed shares or where a particular person dies leaving no heirs coming within the categories of Quranic sharers.

He classifies the residuaries into four classes, namely descendents, ascendants, descendants of the father and descendants of the father's father.

In Chapter 4 the author deals with exclusion from inheritance, as for example the rule that a person cannot benefit from his crime, crystallized in the prophetic tradition "a murderer does not inherit". In Chapter 5 he deals with the administration of the estate of a deceased person.

Chapter 6 is devoted to a discussion of the doctrine of Increase (Al-Aul) and the doctrine of Return (Al-Rudd).

The first of these doctrines, namely Al-Awl, applies where the Quranic shares of the sharers add up to more than unity, as for example, where a person dies leaving the surviving husband with no children who takes one half, the mother who takes 1/6th, and two sisters who together take 2/3rd which add up to 6/8th.

Although "Al-Aul" literally means increase, an application of the principle results in the proportionate reduction of the shares so that the total will be equal to one. The other principle Al-Radd is applied where the shares of the various sharers add up to less than unity, and it is necessary to increase the share of the sharers proportionately.

It is the need to make such complicated mathematical calculations that helped to develop the science of algebra, the name of which exact science had been coined from the name of the famous Arab Mathematician Al-Jabrain.

In Chapter 7, he describes the concept of Umariyathani which was utilized in the era of Caliph Umar to provide certain exceptions to the general principles in deciding the shares of the mother in certain special circumstances.

Missing persons

In Chapter 8, the author deals with the right of missing persons to inheritance. In fact, after the devastation caused by the tsunami, missing persons have given rise to several important legal problems, some of which yet to be resolved.

Al-Haj Ameen points out that the rule laid down by Imam Shafie is that a person is presumed to be dead if he has not been heard of for 7 years, which is the period adopted by our Evidence Ordinance.

However he also refers to Minhaj-ut-Thalibin in which it stated that the property of "the person of whom there has been no news, should be sequestrated, until death has been legally established or until the lapse of such time as may justify its presumption".

It is noteworthy that even in Sri Lanka the period for the application for the presumption of death has now been brought down to one year in the wake of the tsunami.

Al-Haj Ameen's Muslim 'Law of Succession - A Guide' is indeed an essential guide to the principles of law governing succession which can be of immense benefit to the law students, legal practitioners, law teachers and judges in Sri Lanka as well as abroad.

Blending the wealth of experience gained through a long and distinguished career as an Attorney-at-Law, a member of the Board of Quazis and a member of the Wakfs Tribunal, with the immense knowledge of Muslim law acquired in the process of teaching the subject at the Sri Lanka Law College for a number of years, Al Haj Ameen has presented in a very simple manner extremely complex concepts relating to the Muslim law of succession.

His presentation is scholarly but has the depth that can only be acquired through experience. I am sure that this valuable contribution he has made to legal literature will provide an impetus to the study and development of the law in this field and will encourage others to engage in similar research for the benefit of society.

Due to the absence of a guide such as what Al Haj Aamen has produced, the legal practitioner as well as the law student was groping in the dark, unable to ascertain the principles of the sharia'at rules governing Muslim intestate succession. Al-Haj Ameen's work is designed to provide easy access to these principles.

- Justice Saleem Marsoof PC