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7/22/2019 Muslim Law of Inheritance
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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.
TheQur'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 mothers side, which were excludedfrom 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
thedecedent'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 atIslamic 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 grantstestamentary powers to
Muslims in disposing their property, in their will, called waeyya; 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 arepresent during the division of property.
http://en.wikipedia.org/wiki/Decedenthttp://en.wikipedia.org/wiki/Shariahttp://en.wikipedia.org/wiki/Testamentaryhttp://en.wikipedia.org/wiki/Testamentaryhttp://en.wikipedia.org/wiki/Shariahttp://en.wikipedia.org/wiki/Decedent7/22/2019 Muslim Law of Inheritance
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RECENT DEVELOPMENTS
The Qur'an contains only three verses which give specific details ofinheritance 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 triedto 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 resemblethat 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 Quran 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 ofinheritance. 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, theco-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 Quran. Hence, there is a legal share for relatives
of the descendents in his estate and property. The major rules of
inheritance are detailed in Quran 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 conceptionand 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 oftotal and partial exclusion. Every person is entitled to inherit underMuslim Law, unless there is something to exclude him. There are two
major exclusions, viz. Partial (also known as imperfect) exclusions andTotal (also known as perfect) exclusions. In Islamic law, only relativeswith a legitimate blood relationship to the deceased are entitled toinherit. Thus, illegitimate children and adopted children have no sharesin inheritance. In general, a full brother will excludea consanguine brother, but not uterine brother. In case where adeceased man leaves a pregnant woman, the unborn child's share willbe reserved. Also a woman during the time of waiting (iddat)after divorce is considered as a wife of the deceased for purposes ofinheritance. There are even further rules of exclusion and inclusion ofdifferent relatives. The only "practical situations" which may causedisqualification are differences of religion and homicide. But schools ofIslamic jurisprudence differed whether a Muslim can inherit from a non-Muslim or not. All the jurists agree that intentional or unjustifiable killingwould exclude a person form inheritance. Four persons cannot getinheritance:-
A fugitive slave who has fled away from his master, One who has murdered ones 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 deceasedMohammedan after payment of his mentioned expenses is to allot therespective shares to such of the relations as belong to the classes ofheirs. Hanifa Jurists have divided heirs into 7classes; 3 Principle and 4Subsidiary Classes. In principle classes, there are Quranic heirs (alsocalled Sharers), Agnatic heirs and uterine heirs. Subsidiary heirs are
Successor by contract, Acknowledged Kinsman, Sole legatee and thestate. There are 5 primary heirs viz, Husband or wife, son, daughter,father and mother.According to Islam, the heirs have been divided intothree 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 ason's son, but if the deceased is not survived by a son or grandsonhis father will, in addition to this share (one-sixth), also get a share ofbeing 'Asaba.
The grandfather's share is like that of father's share but in threeconditions:-According to Imam Bukhiri and Imam Muslim, thepresence of father deprives even the brothers of their share in theinheritance. But this is not the case with the grandfather. Imam AbuHanifa is of the opinion that the presence of grandfather deprives thebrother of his share in the inheritance.
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If the father of the deceased is alive, then the share of the mother isof what is left from the share of the wife of the deceased. Thepresence of grandfather does not reduce the share of the mother ofthe deceased. The grandmother of the deceased has no share in thepresence 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 areentitled to one-sixth if their number is one, and one-third if they aremore than one.
The husband's share is one-half of the property of the deceased wifeif she has no children, but in case of children it is one-fourth. The wifeis entitled to one-fourth if the husband dies childless; otherwise it isone-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 arethen treated as Asaba and the male child would get double of whatfalls to the lot of daughters. The granddaughters stand on the samelevel as daughters. But in case the deceased is survived by one realdaughter and one or more than one granddaughter they would getone-sixth. The granddaughter is not entitled to any share if thedeceased is survived by a son, but if he is survived by grandsons and
granddaughters, they would be treated as 'Asaba and the malegrandchild 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 morethan one. Consanguine sister is entitled to one-half if one, and twothirds 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 thedeceased is survived either by paternal grandmother or maternalgrand- mother or even by both, they are entitled to one-sixth. The
grandmother (maternal) is deprived of her share if the mother of thedeceased is alive; and if father is alive the paternal grandmother isdeprived of this share.
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2. Asabat:-
This category is also known as Residuaries. When the heirs of thefirst group have received the respective shares, the residue of theassets falls to the share of those relatives who are called Asaba
which, according to the Shari'ah, implies those relatives in whose lineof relationship no female enters. This is the second group ofinheritors.
There is no fixed share of the 'Asabat. If the deceased is not survivedby 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 residuewill be taken by the Asabat.
Son is the first asabat to get the residue in order of succession. Thedaughters are entitled to half of the share as given to the son. Thegrandsons are not entitled to any share in the presence of the son. Ifthe son is not living, then the grandson is entitled to gain share in theinheritance. If there is more than one son, the inheritance will bedistributed equally amongst them.
The father, grandfather and the great-grandfather are included in thecategory of Dhaw-u'l-Fara'id. If, however, the deceased is notsurvived by category of a son, grandson of great-grandson, then the
father will fall under the category of 'Asaba, and, in the absence of thefather, the grandfather assumes that position.
If the deceased is not survived by son, or grandson or father orgrandfather, i.e. none amongst the 'Asabat, then the brother, and inthe absence of brother his son, and in the absence of son, hisgrandson will be entitled to share in the inheritance as 'Asaba and thefemale would also join them in share claiming half of the share ascompared with male.
If unfortunately the deceased is survived by none of the above-mentioned relatives amongst the 'Asabat, then consanguine brotherwill be entitled to share in the inheritance and he will be preferred tofull brother's son. Then it comes the turn of full paternal uncle.
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3. Dhaw-ul-Arham:-
The last category of inheritors is known as Distant-Kindred, i.e.relations connected through blood who are neither sharers norResiduaries, like relations connected through females, but it is in
extremely rare cases that they get any share in the inheritance. Thefollowing 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, thegrandmother of the mother, the children of the sisters, the sistersof the father and those of the mother, etc.
SHARES OF HEIRS
Heir
Share
Conditions Exclusion
One Two or more
Husband
1/4 NAWhen there is
a child orsons child
NA
1/2 NAWhen there is
no child orsons child
NA
Wife
1/8 1/8When there is
a child orsons child
NA
1/4 NAWhen no
child or sonschild
NA
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Father
1/6 NAWhen there isson or sons
sonNA
1/6 plus residue
When thereare one ormore
daughters,sons
daughtersand there isno son norsons son
Father is asharer andresiduary
Residue When there isno child orsons child
Absence ofany child
TrueGrandfather
1/6 NA
When there isa child or
sons childand no fatheror nearer truegrandfather
Excluded byfather or
nearer truegrandfather
1/6 plus residue
When thereare
Daughters oronly sonsdaughters
NA
Residue
When there isa Wife or
husband andfather
Converted byfather
Mother 1/6 NA
When there isa child or
sons child ortwo or morebrothers orsisters or
NA
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brother orsister and
father
1/3 NA
When there is
no child, norsons child
and not morethan one
brother andsister
NA
1/3 plus residue
When there isa wife or
husband and
father
Converted byfather
MaternalGrand Mother(How high so
ever)
1/6 NA
When nomother or no
nearerPaternal
grandmother
Mother,Paternal TrueGrandmother
PaternalGrand Mother(How High So
ever)
1/6 NA
When nomother or no
nearerMaternal or
Paternalgrandmotheror father, ornearer truegrandfather
Mother,
Maternal orPaternal
grandmotheror father or
truegrandfather
Daughter
2/3When there is
no sonNA
ResidueConverted byson or two or
more sons
Sons 1/2 2/3When there is
no son orExcluded byson or sons
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Daughter sons son orone or moredaughters orhigher sons
daughter
son of highergrade, or two
or moredaughters ortwo or more
sonsdaughters ofhigher grade,
or onedaughter withtwo or more
sonsdaughters orhigher grade
1/6 NA
When there isno son or
sons son orone or moredaughters or
higher sonsdaughter
Excluded byson or sonsson of highergrade, or two
or moredaughters ortwo or more
sonsdaughters of
higher grade,or onedaughter withtwo or more
sonsdaughters orhigher grade
Residue
Converted bysons son of
equal or evenlower grade
Full Sister 1/2 2/3
When nochild or sonschild or father
or brother
Excluded bySon or sonsso, father or
true
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grandfather,daughter or
sonsdaughter
Residue
Converteddue to fullbrother or
daughters orsons
daughters, fullsisters
ConsanguineSister
2/3
When nochild or Sonschild ( How
Low So ever),or father or
brother or fullsister
Excluded by
Son, Father,or True
Grandfather,or full brotheror full sister
1/6 NA
When one full
sister only
Excluded byone or moredaughters or
sons
daughters orby two ormore fullsisters
Residue
Converted into Residuary
byconsanguine
brother
UterineBrother
1/3
Excluded bySon or SonsSon, father or
truegrandfather or
daughter or
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sonsdaughter
Uterine Sister 1/6 NA
when no childor (How Low
So ever)sons child
Excluded bySon or SonsSon, father or
truegrandfather or
daughter orsons
daughter
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DOCTRINE OF AUL
It means the doctrine of decrease. In certain circumstances of allotment ofshare, it may be followed that the total of the share exceeds unity. Then thefraction allotted to each heir will have to be reduced ratably. This doctrinerefers 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 thefractions may be less than unity. There may not be any heir belonging tothe residuary to take the residue. In such cases, the residue is returned tothe 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 generalcircumstances, 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.Kalalahdescribes 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 deceaseds] 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 burdenon men where none existed on women. This custom received Islamic
sanction.
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DISTINCTION BETWEEN
SUNNI AND SHIA LAW OF INHERITANCE
Sr.
No.SUNNI LAW SHIA LAW
1.Priority of agnates over
cognates.Deny any priority to agnates
over cognates.
2.
Give importance and preference
to full blood over half blood. Treat all equally.
3.Give importance to the decisionsof the three Caliphs-Abu Bakr,
Umar and Usman.
Disregard the details of Sunnisystem which rests on the
decisions of the three Caliphs-Abu Bakr, Umar and Usman.
4.Interpret Quran strictly, keeping
rules intact.
Interpret Quran as altering theold principles themselves and
giving rise to new set of
principles.
5. Preference to male over female. Both are on equal footing.
6.Follow strict classification of
heirs given in Quran.
The classification becomesimportant only in cases of
quantum of shares.
7.Method of interpreting Quran is
literal.Method of interpreting Quran is
characteristic.
8.Distant Kindred are postponed in
favour of sharers andResiduaries.
Distant Kindred inherit alongwith sharers and Residuaries.
9.Doctrine of Aul is applicable to
all sharers alike.Doctrine of Aul operates against
daughter and sister only.
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10.
Doctrine of Radd does not applyto wife and husband in presenceof any other heirs. However, inabsence of sharers, both get by
return.
Except India, Doctrine of Raddis not applicable to wife under
any circumstances.
11.Principle nearer in degree
excludes more remoteapplicable to only agnatic heirs.
Principle nearer in degreeexcludes remote applicable to
all, without distinction.
12.No distinction between real and
personal property.
Observe such distinction incase of Childless widow who isnot allowed to take husbands
immovable property.
13.Do not recognize right of elder
son getting preference overyounger ones.
Recognize right of eldest son upto deceased fathers sword,wearing apparel and Quran.
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CONCLUSION
The law of succession in India falls within the realm of personal law. Due tothis, we have so many different succession laws, each purporting to reflectthe diverse and differing aspirations, customs, and mores of the communityto which the statute in question applies. The primary source of the Muslimlaw of succession flows from the Holy Koran. In addition, the Ijmas, theSunnas, and the Qiyas, from all of which rules pertaining to succession canbe 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 Quran, following books are referred forbetter understanding
1. FAMILY LAWBy G.C.V. Subba Rao.
2. PRINCIPLES OF MOHAMMEDAN LAWBy Mulla.
3. MOHAMMEDAN LAW
By Tahir Mahmood.
WEBLIOGRAPHY
1. http://www.iium.edu.my/deed/hadith/muslim/011_smt.html Visited on 26thDecember, 2013.
2. http://www.lawyersclubindia.com/articles/-8220-SUCCESSION-UNDER-HANAFI-LAW-8221--424.asp#.UryTq9IW2Xo Visited on 26thDecember, 2013.
3. http://www.muslimpersonallaw.co.za/Inheritance%20according%20to%20Islamic%20Sharia%20Law.pdf
Visited on 26thDecember, 2013.
4. http://www.kantakji.com/fiqh/files/mawareeth/4015.pdfVisited on 23rdDecember, 2013.
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