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".
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
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
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
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
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
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
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