Inheritance Under Hanafi Law

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INHERITANCE UNDER HANAFI LAW

CONTENTS
AKNOWLEDGEMENT……………………………………………………..2 RESEARCH METHODOLOGY……………………………………………3

CONTENTS………………………………………………………………….4

I.

INTRODUCTION…………………………………………………………...5 GENERAL PRINCIPLES ………………………………………………….6 a. UNDER HANAFI LAW

II.

III.

DEFINITION………………………………………………………………..8 INHERITANCE UNDER …………………………………………………10 a. HANAFI LAW

IV.

V.

CONCLUSION…………………………………………………………….26

VI.

BIBLIOGRAPHY………………………………………………………….27

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I.

INTRODUCTION.

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 Muslim law of inheritance is a superstructure constructed on the foundation of pre-Islamic customary law of succession. Since under Muslim law all properties devolve by succession, the right of heir-apparent does not come into existence till the death of the ancestor. Succession opens only on the death of the ancestor, and then alone the property vests in, the heirs.

As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia law of succession and the Hanafi law of succession(Sunnis). Both these laws of succession form part of the common law of India and are recognized as having the force of law by virtue of the Sharia't Laws (Application) Act. The Muslim law of succession is derived from the Sharia. The primary source of the Muslim law of succession flows from the Holy Koran. Apart from those issues which are directly addressed in the Holy Book, there are the Ijmas, the Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned.

Under the hanafi law, the general rule of distribution of the estate is per capita and not per stripes. This is not only confined to descendants but is also applied to ascendants.

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II.

THE HANAFI LAW:
general principles

The Hanafis interpret the principles of customary law and Islamic law in such a manner as to blend them together in a harmonious manner; the customary, heirs are not deprived of their right of Inheritance in the estate of the deceased, but only a portion out of the estate is taken out and given to the heirs enumerated in the Koran. This means that the basic structure of customary succession, the rule of agnatic preference, is retained-the agnates are still preferred over cognates. The, Koranic succession takes the agnatic principles further by recognizing the right of female agnates. Thus, if there is a female agnate (as specified -in the Koran) near to a male agnate (as specified under the customary law), then, by virtue of nearness of her claim to take a share in the estate of the deceased, she is allowed to take a share. But thereby, the male agnate is not deprived of a share, and male agnate takes the residue. Or, where the female agnate and the male agnate are equally near to the deceased, then the male heir takes twice the share of the female heir. It is submitted that this principle implies not only to female agnates but also to male agnates(i.e., those heirs who are made heirs by the Koran) ~ and it is wrong to generalize that the male heir as such always takes double share of a female heir. Thus, uterine brother and father as sharers do not take more than the uterine, sister and mother respectively. It should also be noticed that most of the newly created heirs are the near blood relations of the deceased who were ignored in the customary law. The Koranic imposition of new heir does not deprive the male agnates of their inheritance, but their rights are liable. To be affected if there exists a Koranic heir, if we examine the rights of the koranic heirs vis-vis the customary heirs, we find two situations: (i) The Koranic heir may be nearer to the customary heir. "1n such a case a specified portion of the...
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