Detail of WILL (WASIYAT)

WILL (WASIYAT)

WILL (WASIYAT)

Concept and meaning

A will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and of recognising the services rendered to him by a stranger. At the same time the Prophet has declared that the power should not be exercised to the injury of the lawful heirs, and restricted the testator from bequeathing more than one-third of his estate.

   The will of a Muslim is governed in Indian Succession Act, 1925, by the Muhammadan Law.

Form of will

It may be made orally or in writing. Convenience, however, demands that it should be in writing. If the will is in writing it need not be signed; and if signed, it need not be attested. The only requisite is that the intention of the testator should be clear; thus, a dumb person, or a person who is unable to speak sue to illness, may make valid wills through gestures.

     If the intention is clearly expressed, a will takes effect as a will even if it is described as tamliknama, or is in any other form. Where a man leaves one testamentary writing or several testamentary writings it is the aggregate or the net result that advisors or to his relative as to the instructions to be given to the legal advisors or to his relative as to the instructions to be given to the legal advisor as to the disposition of his property would operate as a valid will and may be admitted to probate. But if the intention is not clear, it will not take effect as a will. So, the essentials of a will are:

    (i)  the testator must be competent;

   (ii)  the bona fide intention must be clearly expressed;

 (iii)  it must be intended to operate after his death;

  (iv)  the quantitative limits of the property must be observed;

   (v)  the quantitative requisites of the subject-matter of the will-the property-are satisfied; and

  (vi)  the legatee must be competent to take the benefit.

Who can make wills

A Muslim who is of sound mind and is major can make a will. Although according to Muslim Law majority is dependent on the age of puberty, which is supposed to be reached at 15 years of age, yet the Indian Majority Act recognises only the age of 18 years as a requisite for the purposes of will. But if a guardian of his person or property has been appointed by Court or his property has come in charge of the Court of Wards, he will attain majority on completion of 21 years.

    Apostacy.- According to Hanafi School, apostacy does not invalidate a will if it is otherwise lawful. A will by a female apostate is lawful according to the sect to which she apostatises.

   Unsound mind.­- If a will is made by an insane person, it would remain void even if he subsequently recovers and remains sane till death. Conversely a will made by a person of sound mind becomes void if subsequently he becomes insane and remains so till death. A will by an insane made during lucid interval shall remain valid only if the insanity does not last longer than 6 months.

   Insolvency.- Debts have priority over legacy. If the testator is in debt to the full amount of his property, the bequest would not be lawful unless the creditors relinquish their claims.

   A person condemned to death may also make a will. A purdahnasheen lady is also competent to make a will. The Court would scrutinise more carefully the element of free consent in such a case.

    A will by a person coercion, undue influence or fraud is disallowed. A will made by a person after he has taken poison or has done any other act towards the commission of suicide, is not valid. The Shia Law, however, says that if the person made the will and then committed suicide, the bequest would be valid.

    A minor may make a will, but its validity would be postponed to the event when, after attaining majority, he ratifies it.

What and how much can be bequeathed

    Subject of will.- It is not necessary that the property bequeathed by will must be in existence at the time of the making of the will. It may, or may not be; but it must be so at the time of the death of the testator; for, the will takes effect from the point of the time the maker of the will dies.

    Anything, movable or immovable, over which the right of property may be exercised or which may from the subject of exchange or barter, or a fractional share thereof, or the usufruct of a thing, may be lawfully disposed of by will. A bequest remains valid and operative, though subsequent to the making of the making of the will the testator makes any changes or improvements over the property subject to such changes as imply a revocation by the testator.

   (1) What?- The subject-matter of will may be:

      (i)    the corpus of a property, which must be in existence at the time of testator's death, and could be non-existent at the time of making the will;

     (ii)  the usufruct of an existing property for a limited time or for lifetime of the legatee. The position of the legatee is the same as that of a beneficiary under a wakf. It is permissible that the corpus may be given to one person and the usufruct of the same property to another;

   (iii)  the vested remainder. Suppose A bequeaths the usufruct of a property to B, for B's lifetime, and then the whole of property to C. C has vested remainder in the property.

Thus the Muslim Law differentiates between the corpus of the property and the usufruct of the property. The corpus means the body, the physical form of the property, such as a house means the constitution. Usufruct means the fruits, the benefits, the uses, i.e., the intangible rights flowing from the property. Thus, in regard to the house, the usufruct means the right to live in it, rental income from it, etc. The bequest must vest in the legatee the absolute ownership over the corpus, and the corpus must physically exist at the time of death. The usufruct may on the other hand be given for a limited period; when this period relates to the lifetime of the legatee, it is called life interests.

    A testator may make a bequest of limited right dealing only with the usufruct (ghallat) of the property without bequeathing the corpus. All such rights as rent, income, profits, produce, use or occupancy of a house, the fruits if a garden-rights by which the corpus is not consumed are usufruct of the property. The intention of the testator should be gathered from the terms of the bequest. It is permissible to make a bequest of the thing itself in favour of one person and of its produce or use to another. Bequest of the usufruct may be for a limited period or 'forever'. The expression 'for ever' will give the legatee a right to the use for his own lifetime only. At the expiration of the limited period or at the death of the legatee, the thing will immediately revert to the heirs of the testator. The legatee of usufruct cannot alienate the property.

   (2) How much?- No Muslim can bequeath more than one-third of his estate. This one-third is calculated after deducting any debts, and funeral expenses.

Abatement of legacies

But if the heirs do not give consent, the bequests are to be rateably reduced or abated. The principle is called the "abatement of legacies:. Shia Law says that if several bequests are made through a will, priority would be determined by the order in which they are mentioned. The first bequest, takes effect first and thereafter the subsequent bequests, unless the bequeathable third is exhausted.

   If bequests are for religious or pious purposes but exceed the legal limit of one-third then, the priority would be determined in the following order:

(a)  bequest for faraiz (i.e. those acts that are expressly ordained in the Koran, for instance, performance of haj);

(b)  bequest for wajibat (i.e. those acts that are recommended by the Koran, but are not obligatory, for instance, charity on day of breaking the fast); and

(c)   bequest for nawafil (i.e. voluntary but pious acts which are not even recommended, for instance, building a bridge or an inn).

   A Muslim cannot dispose of more than 1/3rd of his estate by will; but if he registers his existing marriage under the provisions of the Special Marriages Act, 1954, he has all the powers of a testator under the Indian Succession act, 1925.

Wills during maraz-ul-maut

A gift without consideration in maraz-ul-maut (death-illness) takes effect as a will. It takes effect to the extent of bequeathable third, if is not in favour of the heirs, and the possession has been taken by the donees. Under Shia Law, it takes effect to the extent of 1/3, even if is not in favour of the heirs, provided possession id transferred. To constitute maraz-ul-maut, there must be (1) proximate danger of death, (2) apprehension in the mind of the sick, and (3) some external indicia, like inability to attend to routine work, etc. The question of apprehension is of extreme importance; it is essential that the gift should be made under pressure of the sense of the imminence of death.

    A gift during maraz-ul-maut is subject to all the conditions and formalities prescribed in Muslim Law for gifts inter vivos. Thus, transfer of possession is a must, otherwise the 'gift' fails. Similarly, a gift by way of will during death-illness, must comply with the two conditions-the limit of one-third, and if made to an heir- the requirement of the consent of other heirs.

Reasons for limits on the testamentary power

As said above, there are two limits on a Muslim's power to bequeath-one, as one to persons-he cannot bequeath to an heir, and two, as to property- he cannot bequeath more than one-third of his property.

    The ban against bequest to stranger (i.e. a non-heir) in excess of one-third is subject to following exceptions, that is may be relaxed in the following cases:

1)   where, subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom;

2)   where there are no heirs of the testators;

3)   where the heirs existing at the time of the testator's death, consent to such bequest after his death;

4)   where the only heir is the husband or the wife and the bequest of such excess does not affect his or her share.

For whom the bequest can be made

    (i)  Any person who is capable of holding property, whether male or female, Muslim or non-Muslim, may validly avail the benefit of a bequest. It is not necessary that the executor of the will of a Muhammadan should be a Muhammadan. A Muhammadan may appoint a Christian, a Hindu, or a non-Muhammadan to be his executor. Muhammadan Law does not prohibit a will by a Muhammadan in favour of non-Muhammadan.

   (ii)  Unborn person cannot be a legatee. However, if the legatee is in the womb and the birth takes place within six months from the date of making the will, he can be a lawful legatee. Shia Law recognises a legatee born within 10 months from the date of will.

 (iii)  Heirs cannot be the legatees, that is, no bequest to heirs, who are entitled to inherit. This  rule is relaxed only in cases, where other heirs give their consent. By giving consent, an heir can bind only his own share but not of others.

A bequest to an heir is not valid unless other heirs consent to it. It is essential that the heir must be in existence at the time of testator's death. Consent may be inferred from the conduct of heirs.

  (iv)  An apostate may be a legatee. A bequest to non-Muslim is valid.

   (v)  Manslayer is one who kills another person, from whom he intends to take a legacy. Hanafi Law prohibits him to take any interest in the bequest. In Shia Law, only intentional homicide leads to exclusion.

  (vi)  Institutions, whether religious or charitable, can be valid legatees.

(vii)  Joint Legatees- When bequest is made in favour of two or more persons in the same will it is called a joint legacy.

(viii)  Bequest to a class.- A class of persons may be made a legatee. It would jointly rank as a single legatee. The amount may be spent on one poor person and on at least two persons. A class may be a special class also.

    Consent of legatee necessary.- The express or implied assent of the legatee after the death of the testator is necessary to complete the legatee's title to the bequest. The legatee has a right to disclaim.

    Death of legatee.- If the legatee predeceases the testator, the legacy lapses; but in Shia Law, it passes to the heirs, if any, of the legatee. Under this law, a will may be accepted or rejected during the lifetime of the testator.

Bequests which are not absolute

As to future, conditional and contingent bequest, the law treats them on a footing of equality with gifts, and unless there is special provision the rules applicable are similar.

   (i) Conditional bequest.- If a bequest of the corpus of any property is made with a condition which derogates from the completeness of the bequest, such condition is void and the legatee will get the property.

  A bequest of usufruct, however, can be made for a limited time; thus, bequest of life-interest is valid.

  (ii) Contingent bequest.- The bequest which has to take effect on the happening of a contingency is void, unless permitted by a lawful custom.

  (iii) Future bequest.- A bequest in futuro of the corpus of any property is void. But bequests of usufruct in futuro for a limited period are valid.

  (iv) Alternative bequest.- An alternative bequest is valid.

Revocation of will

A bequest may be revoked by the testator either expressly or impliedly, or by a subsequent will.

   Express revocation is one where the testator revokes the bequest in express terms either orally or in writing. But a mere denial by the testator that he did not make a will does not act as revocation of an otherwise valid will.

  Implied revocation is one where the testator does an act from which revocation may be inferred. For example, bequest of a piece of land is revoked, if the testator subsequently builds a house upon it. Similarly, a bequest of piece of copper is revoked, if the testator subsequently converts it into a vessel.

  A bequest to a person is revoked by a bequest in a subsequent will of the same property to another person.

ADMINISTRATION OF ESTATES

Muslim Law recognises four distinct purposes to which the estate of the deceased is successively applicable:

1)   his funeral expenses;

2)   his debts;

3)   his legacies; and

4)   the claim of his heirs.

But Muslim Law is replaced by the India Succession Act, (39 of 1925), which lays down the following scheme of the order of priority in which the payments are to be made:

1)   Funeral express and deathbed charges;

2)   Expenses of obtaining probate or letters of administration;

3)   Wages for services rendered to the deceased by a labourer or servant within three months of his death;

4)   Debts, according to their own priorities;

5)   Legacies, not exceeding one-third of what has been left after payments of items mentioned in (1) to (4) above.

   Vesting of estate.- Immediately after the death of a Muslim his property devolves on his legal representatives-executor, administrator and heirs- in that order. The absence of the administrator does not postpone the vesting of the property or its devolution on the heirs. There was no administration, but a mere distribution of the estate, by the state if not by the heirs themselves, in accordance with the principles laid down in the Sirajiyyah. The estate did not vest in the Kazi, it vested, subject to certain obligations, in the heirs, the physical distribution taking place much later than the apportionment in the eye of the law.

   The portion of the property that devolves on the executor is to the extent covered by the valid will; the rest will devolve on the administrator, and if no administration has been nominated this "rest" of the portion will devolve on the heirs. The existence of the debts will not postpone this devolution, nor suspend the right of the heirs to distribute the estate at any time. The devolution will be proportionate to the respective shares under the Muhammadan Law of inheritance and the heirs will take as co-heirs or tenants in common of their specific shares.

Legal representatives of a deceased Muslim

  (i)  In case the deceased leaves a will- his executor (wasi), to the extent to which the "will" is valid;

 (ii) If he dies intestate (i.e. there is no will)-(a) the administrator, to whom the court has granted the letters of administration; failing whom-

       (b) the heirs.

INHERITANCE

Some general rules of inheritance

   No limited interest.- Muslim Law recognises a distinction between ayn (corpus) and usufruct in the property (manafi). Over the corpus the law recognises only absolute dominion, heritable and unrestricted in point of time. The manafi may be of limited duration and limited interest, and through this manafi the dominion over the corpus may take effect subject to any such limited interest.

   No rule of primogeniture.-  Muslim Law does not recognise the law of primogeniture; the eldest son has no special privileges.

   Birthright not recognised.- The right of heritance or succession arises only after the death of the ancestor or propositus. Until then the heir-apparent does not have any entitlement of the property that would devolve on him on the death of the ancestor. His right to succeed is nothing more than a mere chance of succession. The principle nemo est heirs viventis (a living person has no heir) applies to Muhammadans.

    An heir apparent as such, cannot make any claim.

    Vesting of Inheritance (Moona Sukhut).- Immediately on the death of the propositus the heir are vested with the right of inheritance according to their allotted shares. This vesting of the right is not dependent on actual distribution of their shares. So even if such heir dies before the distribution, his right remains intact and immediately passes to his own heirs.

   We repeat for consolidation.- In Muslim Law, there is no right by birth, right of heirs comes into existence on death of the person of whom he is an heir. It is not lost by death of the heir before distribution of property; however the heir who has predeceased the owner cannot have right of inheritance.

   Devolution of separate shares.- On the death of the ancestor, each heir gets his share in separate form as assigned to him or her. Joint family or Joint property concept is foreign to Muslim Law.

   Missing propositus.-The right to inherit the property of a missing person would arise only on the date on which he would be presumed to have dies, and heirs would be determined on that date and not on the date on which he disappeared. If the person reappears, his property will be returned to him.

   Missing heirs.- If at the time of the death of the ancestor any of his heirs is missing his share will be reserved until he reappears or is proved to be dead. The others will be given their shares. If he reappears, he will be given his share. But if he does not return, and is declared dead, the share reserved will devolve on the heirs of the deceased ancestor and not on his heirs.

   Illegitimate person.- Walad-uz-Zina-A bastard is considered to be the son of his mother only. He has no father; as such neither he inherits from "father" nor the "father" inherits from him. The reciprocal right of inheritance exists between him and his maternal relations and his mother. They are also his residuary heirs. Similarly an illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will inherit as uterine brother.

  Child of a woman divorced by lian.- The son or daughter of a woman who imprecated and therefore divorced by her husband by the method of lian (Walad-ul-Mula'inah) is treated for the purposes of inheritance on the same footing as the illegitimate son or daughter. That is he inherits from the mother but not from the "father" (i.e. the woman's husband) or even the imprecator. The only difference is that if such child has a twin brother, they inherit as full brother, unlike as uterine brother, because the source is common and is known.

    Under Shia Law the illegitimate child does not inherit even through the mother. However, the child of an imprecated mother does inherit from the mother and vice versa.

    A child in the womb.- For the purpose of safeguarding property interest a child in the womb (an unborn child) is deemed to be born on the date of his conception. And thus he is treated as in existence on the date the propositus dies and the succession opens out. The other heirs would be entitled to distribute the estate among themselves only after reserving the share of the unborn.

Doctrine of representation

The principle of representation could not be applied for the purposes of deciding who are entitled to inherit.

    The doctrine of representation, however, could be used in a limited way; that is, for deciding the quantum of the share of any given person, if he is entitled to inherit.

    For the limited purpose of calculating the share of each heir, Shia Law accepts the principle if representation. Accordingly, the descendants (or ascendants) of a predeceased represent the son. In Sunni Law, even this limited meaning of the term 'representation' is not accepted.

Rules of total and partial exclusion

Every person is entitled to inherit, unless there is something to exclude him. A child in the womb is regarded as a living person provided he is born alive.

   Two types of exclusions are recognised:

  (i) partial or imperfects exclusion; and

  (ii) total or perfect exclusion.

  (i) Partial or imperfect exclusion.- It may come in two ways:

  (a) Exclusion from one share and admission to another.

  (b) Partial reduction of the specific share because of the presence of certain heirs.

  (ii) Total or perfect exclusion.- The term "total exclusion" applies to cases when although a person, related to the propositus and otherwise entitled to inherit, is excluded by some "legal cause".

   It is based on three principles:

   Principle I.- "Nearer in degree excludes more remote."

  Principle II.- "A person who is related to the deceased through another is excluded by the presence of latter."

  Exception.­- Mother does not exclude brother or sister.

  Principle III.- "Full blood excludes half blood."

  Exception.- Uterine relations are not excluded on this ground.

  The most important of total exclusions are on the following grounds:

  (a) Religion.- According to Islamic Law, a non-Muslim cannot inherit from a Muslim. Thus, if a Muslim apositises, he is excluded from inheritance.

  (b) Homicide.- One who causes the death of another either intentionally or unintentionally, cannot inherit from the deceased.

   However, an act committed by an infant or insane person which causes death of another person, does not exclude such infant or insane from inheritance. Moreover, the act causing the death should be of direct nature. The bar of homicide is only personal, others who claim through him are not barred.

    Shias say that the homicide must be intentional, but the absence of intention should be clearly proved.

   (c) Slavery.- Both under the Shia and Sunni Laws, the status of slavery is a bar to succession.

   (d) Exclusion of daughter by custom or by statute.

   (e) Relinquishment in inheritance rights.

Classes of heirs

Hanafi Law of inheritance

Hanafi jurists divide heirs into seven classes, the three principal and the four subsidiary classes.

   Principal classes.- (i) Koranic Heirs dhawul-furud (Shares);

   (ii) Agantic Heirs asabat (Residuaries);

   (iii) Uterine Heirs dhawul-arham (Distant Kindred).

   Subsidiary classes.- (iv) The successor by contract;

   (v) The Acknowledged kinsman;

  (vi) The Sole Legatee;

  (vii) The State, by Escheat.

The first step in the distribution of the estate of a deceased Muslim is to allot their respective shares to the Koranic heirs. If any residue is left, it is to be divided among Agnatic heirs (Residuaries). If there be neither Sharers nor Residuaries, the estate will be distributed among Distant Kindred. The Distant Kindred are not entitled to succeed so long as there is any heir belonging to the class of Sharers or Residuaries, except when the Sharer is the wife or husband of the deceased.

   In the absence of a member of the three principal classes, the right of heritance devolves upon subsidiary heirs, among whom each class excludes the next.

    Successor by contract is a person whose right of inheritance is based on a contract with the deceased in consideration of an undertaking given by him to pay any fine or ransom.

    Acknowledged kinsman is a person of unknown descent in whose favour the deceased has made an acknowledgment of Kinship, not through himself, but through another. Consequently, a man may acknowledge another as his brother (descendant of father), or uncle (descendant of grandfather), but not as his son.

    Universal legatee.- In the absence of three classes of Principal heirs and heirs and the above described classes of two Subsidiary heirs, a person is entitled to bequeath the whole of his estate to any person, who is called the Universal legatee.

   The State, by escheat.- In the absence of either Principal or Subsidiary heirs, and a will, the whole of a estate of a deceased would escheat to the Government.

   (i)    Sharers.-

 

Table of Sharers

  Sharers                       Share                      Conditions under which the share is inherited           Whether excluded or converted                                                                                                                                               into a residuary

1. Husband                         1/4                        When there is a child or child of a son h.l.s.                         Excluded by none

................................................................................................................................................................................................................................................

                                           1/2                        When there is no child or child of a son h.l.s.                  

...........................................................................................................................................................................................................................................

2. Wife (one or more)         1/81                      When there is a child or son's child h.l.s.                              Excluded by none.

.........................................................................................................................................................................................................................................

                                           1/4                        When no child or son's child h.l.s.                 

...........................................................................................................................................................................................................................................

3. Daughter                        1/2                        If one                                           When there is                  Excluded by none.

                                           2/3                        If two                                            no son.

                                                                        or more

  Sharers                      Share                      Conditions under which the share is inherited           Whether excluded or converted                                                                                                                                               into a residuary

                                         Residue                                                                                                                                  Converted into a residuary if there is                                                                                                                                                                            a son or two or more sons. ................................................................................................................................................................................................................................................4. Son's daughter                  1/2                         If one                                            When there is no             Excluded by (i) son or son's son of

                                                                                                                              son, or son's son              higher grade,

                                          2/3                                                                                                                                     (ii) two or more daughters or by two

                                                                .........................................................................................                           or  more son's daughters of

                                                                        If two or more                               Or one or more                higher grade,

                                                                                                                               daughter or higher                         (iii) Or by one daughter together

                                                                                                                              son's daughter.                with two

.........................................................................................................................................................................................................................................

                                        1/6 Residue          When there is a daughter or higher son's daughter.                               or more son's daughters of higher                                                                                                                                       grade.

                                                                                                                                                                      Converted into a residuary by son's                                                                                                                            son of equal or even lower grade.

............................................................................................................................................................................................................................................

5. Father                         1/6                        When there is a son or son's son (h.l.s.)                                    Excluded by none.

                                       1/6 plus                  When there are one or more daughters, son's                                         In this case the father is a sharer and                                                  Residue                  daughters and there is no son nor son's son.                                                                                                         residuary also a residuary.

                                       Residue                 When no child nor son's child h.l.s.                                          Converted into residuary in the                                                                                                                                                                                                    absence of any child.

........................................................................................................................................................................................................................................

6. Mother                      1/6                          When there is a child or son's child (h.l.s.) or two or                                                                                                                                                                                                     more brothers or sisters whether full blood or half                                                                                                                                                                      and whether they inherit or are excluded or there is                                                                                                                                                                              a brother and sister and the father.

                                     1/3                           When there is no child nor son's child and more than                                                                                                                                                                            one brother and sister.

                                     1/3 of                       When there is a wife or husband and the father.                     Converted into a residency by the

                                     Residue    father.

..............................................................................................................................................................................................................................................

7. True grandfather      1/6                           When there is a  child or son's child (h.l.s.) and no                  Excluded by the father or nearer true                                father or nearer true grandfather.                                                                                                      grandfather.                                                                                                            1/6 +                                                            When with daughters or only son's daughters.                                                                                                                                                                                                                                           Residue                                                        When no child nor son's child.                                                 Converted into a residuary if there is                                                                                      Residue                                                                                                                                                   no descendant sharer or residuary.

..........................................................................................................................................................................................................................................

8. True grandmother    1/6                           When no mother and no nearer rue grandmother.                    Paternal true grandmother excluded                                                                                                                           by father or by a true grandfather.                                                                                                                              Any true grandmother is excluded by                                                                                                                         mother or by nearer true                                                                                                                                                                                                               grandmother, whether paternal or                                                                                                                                                              maternal. Not a residuary.

...........................................................................................................................................................................................................................................

9. Full sister                  1/2                          If one                     When no child or son's child                      Excluded by son or son's son (h.l.s.)                                           2/3 If two or                (h.l.s.) or father or brother.                                                                          father or true grandfather. Also                                            more                                                                                                                                                              excluded as sharer by one or more                                                                                                                                                                            daughters or son's daughters.

                                                                                                    Residue                                                      Converted into residuary by full                                                                                                                                                                                                  brother, that is when with one or                                                                                                                                                                                         more full brothers subject to not                                                                                                                                                                         being excluded or when with one or                                                                                                                           more daughters or son's daughters                                                                                                                              and no excluder, the full sisters one                                                                                                                            or more become residuaries with                                                                                                                                                                                                  daughter i.e., they take the residue                                                                                                                                                          after deducting the shares of                                                                                                                                                                                                       daughters. ...........................................................................................................................................................................................................................................

    10. Consanguine       1/2                          If one                     When no child or son's child                      Excluded by son or son's father or                                                                             2/3    If two or               (h.l.s.) father or brother or                                                                                                true grandfather or by full brother                                                                     more                      full sister.                                                                  or by full sister when she is a                                                                                                                                                                                                               residuary.

                                      1/6                          When with one full sister only, (the sister takes 1/2                 Also excluded by one or more                                                                           and consanguine sister takes (2/3-1/2 = 1/6).                                                                                                                    daughters or son's daughters or by                                                                                                                                                                                     two or more full sisters.

                                      Residue                                                                                                                    Converted into residuary by a                                                                                                                                                                                                      consanguine brother. When there are                                                                                                                                                                                    one or more daughters, or son's                                                                                                                                                                          daughters and no exclude.

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11. Uterine                   1/6                           If one                      When no                                                   Excluded by son or son's

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12. Brother or               1/3                      If two or more           child or son's child (h.l.s) or                                     son, father or true grandfather, or                                                                         sister                                                  father, (h.h.s)                                                                                                                                      daughter or son's daughter. Never                                                                                                                                                              converted into a residuary. 

                                                                                                                                                                                                                                                                                                             

     Doctrine of Aul or increase.- In the Muslim Law of inheritance which allots a number or fractional parts of unity to various heirs, it may happen that the fractions when added together may sometimes be (i) equal to unity, (ii) more than unity, or (iii) less than unity. When the sum of fractions is equal to unity, there is no problem. But if it is more or less than unity, the shares are reduced is called the Doctrine of Increase (Aul); and the process whereby the shares are increased is called the Doctrine of Return (Radd).

   Increase or "aul" is effected in the following manner:                                                                                                                             

  "If the total of fractional shares allotted to shares exceeds unity, the share of each sharer is proportionately diminished by reducing the fractional share, to a common denominator; and increasing the denominator so as to make it equal to the sum of the numerators."

  Doctrine of return or Radd.- If the sum total of fractions allotted to shares is less than unity (that is, something is left behind after satisfying the claims of each sharers) and there is no residuary to take the residue, the residue reverts back to the sharers in proportion of their shares.

  Exception. - In the presence of any heir, neither the wife nor husband is entitled to the "Return".

  (ii) Residuaries. If there is no sharer, or if there is something left after giving them their shares, the inheritance devolves upon residuaries.