Application of the Islamic Law of Succession: Was the Propositus a Sunn or a Sh?

Author(s): Lucy Carroll

Source: Islamic Law and Society, Vol. 2, No. 1 (1995), pp. 24-42
Published by: Brill
Stable URL: http://www.jstor.org/stable/3399390
Accessed: 18-03-2016 04:08 UTC
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APPLICATION OF THE ISLAMIC LAW OF SUCCESSION:

WAS THE PROPOSITUS A SUNNI OR A SHI'I?*

LUCY CARROLL

(Cambridge, England)

Abstract

One point at which the difference between Shi'i and Sunni law may dramatically

and immediately impact upon the affairs of a Muslim family is on the occasion of

the death of one of its members. The operation of the rules of succession frequently

leads to very diverse results, depending on the sectarian affiliation of the deceased.

The sectarian allegiance of the deceased, however, is not always easily ascertained,

and the point may be contested by competing groups of would-be heirs. This essay

examines the manner in which the Courts of South Asia approach the question of

determining the sectarian affiliation of the deceased when this is necessary in order

to resolve conflicts over the devolution of his (or her) estate. After examining the

provocative litigation concerning the estate of Miss Fatima Jinnah, who, in life,

had refused to identify herself as either a Sunni or a Shi'i, I shall consider the

question of whether South Asian Muslims could be given the option of electing

whether Sunni or Shi'i law shall govern the devolution of their estates.

Introduction

The divergence in the two systems of law is... fundamental and based

on the underlying philosophy and approach to the interpretation of the

Qur'an. In the very nature of things, therefore, a person belonging to

one sect cannot be subjected to the rules governing the other as the

distinctive rules for inclusion or exclusion of heirs directly flow from the

basic theory underlying each system of law.

W HILE THE SUNNiS view the Qur'anic verses concering succession

as merely modifying the pre-existing system which favored the male

agnate, the Shi'is interpret the Qur'anic revelations as heralding a new

dispensation.2 In Sunni law the male agnate continues to occupy an

important place in the law of inheritance, in contrast to the Shi'i

emphasis on the nuclear family and direct descendants. Consequently,

* This essay has been condensed from the chapter, "Was P a Sunni or a Shi'i?"

in vol. IV (succession) of my forthcoming work on Muslim Family Law in South

Asia.

1 Hussain v. Mansoor Ali, All Pakistan Legal Decisions (hereafter 'PLD') 1977

Karachi 320, 346; Zafar Hussain Mirza, J.

2 N.J. Coulson, Succession in the Muslim Family (Cambridge: Cambridge

University Press, 1971), 30, 108.

? E.J. Brill, Leiden, 1995

Islamic Law and Society 2,1

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THE ISLAMIC LAW OF SUCCESSION

in numerous relatively simple situations, particularly where the pro-

positus (P) leaves no surviving son, the distribution of the estate will be

radically different depending on whether it takes place according to

Sunni or Shi'i rules.3

(a) P leaves father, mother, and daughter.

If P were a Sunni, the father would take 1/3, the mother 1/6, and the

daughter 1/2 of the estate. If P were a Shi'i, the father and mother

would take 1/5 each, and the daughter 3/5.4

More dramatically, the contest may be between a relative (or group

of relatives) who would take the entire estate if the deceased died a

Sunni, but are left totally empty-handed if the deceased died a Shi'I,

and another relative (or group of relatives) who would be entitled to the

whole estate if the deceased were a Shi'i but to nothing at all if he were

a Sunni.

(b) P leaves germane brother, germane sister, and two sons of a

predeceased daughter.5

Particularly if considerable property is at state, the question of the

sectarian affiliation of the deceased may fall to be resolved in judicial

proceedings. The siblings of the deceased in (b) claimed the entire

estate, asserting that P was a Hanafi. The husband of the predeceased

daughter, as guardian of his children (P's grandchildren), claimed the

whole estate on their behalf, alleging that P was a Shi'i. Regardless of

which side succeeded in the litigation, the other side would be totally

ousted from any share of the estate of the deceased.

Both lower Courts held that P was a Sunni and the High Court did

not reopen that question; there is consequently no discussion of the

evidence adduced by the parties.

Determination of P's Sectarian Affiliation

How does the Court approach the question of the sectarian affiliation

of the deceased? Given the numerical preponderance of Hanafi Sunnis

in the subcontinent of South Asia, there is an initial presumption that

3 For an introduction to intestate succession, see Lucy Carroll, "The Hanafi

Law of Intestate Succession," Modern Asian Studies, xxvii (1983), 629-70; and

Lucy Carroll, "The Ithna Ashari Law of Intestate Succession," Modern Asian

Studies, xix (1985), 85-124.

4 For the calculations involved, see Lucy Carroll, "The Ithna Ashari Law of

Intestate Succession," 94.

5 Facts adapted from Azizullah Khan v. Ahmad Ali Khan, (1885) Indian Law

Reports (hereafter 'ILR') 7 Allahabad 357.

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Muslim litigants belong to this category.6 This presumption, however,

applies in its full rigor only in the total absence of evidence concerning

the affiliation of the deceased. If no issue concerning the sect of the

deceased is raised, Hanafi law is applied by default, without discussion

and frequently without explicit identification. For this reason, the

references to "Muslim law" in South Asian law reports must usually be

read as meaning "Hanafi Sunni law." If the issue of the sectarian

affiliation of the deceased is in contention, the parties would have

introduced evidence in support of their respective assertions and the

Court is bound to determine the issue on the basis of the arguments

advanced and the evidence brought on record. Even at this point, at

least theoretically, the presumption that Muslims in South Asia are

Hanafis may be invoked if the evidence is so evenly balanced that the

Court cannot conclude that the probabilities favor one result over the

other. This, however, would be a very rare occurrence.7

Once it is established that the deceased was a Shi'i, a similar

presumption from numbers operates to raise a presumption that Ithna'

'Ashar law governs the devolution of the estate. This presumption will

be displaced by evidence establishing that the deceased identified with

the Isma'ili school of Shi'i Islam. References to "Shi'i law" in South

Asian law reports must usually be read as meaning "Ithn' 'Ashari

Shi'i law."

The strongest evidence on the question of the sectarian affiliation of

the deceased would generally be statements or documents proved to

have been made or signed by the deceased in which he clearly had

identified himself as an adherent of either the Sunni or the ShI'i sect.

For instance, if the deceased left a will in which his affiliation was

explicitly stated or if his sectarian affiliation had been raised in the

course of litigation during his lifetime, the will itself or the transcript of

his testimony would constitute important, and usually conclusive,

evidence. However, in Mst. Iqbal Begum v. Mst. Syed Begum,8 the

6 See Mst. Sardar Bibi v. Muhammad Bakhsh, PLD 1954 Lahore 480; Pathana

v. Mst. Wasai, PLD 1965 Supreme Court 134.

7 As Justice Tyabji observed in Akbarally v. Mahomedally (All India Reporter

[hereafter 'AIR'] 1932 Bombay 3566, 359): "It is not easy ... to conceive of a case

so devoid of all other circumstances from which the religion of the parties can be

inferred, that this presumption from numbers should effectively come into operation

[after evidence has been led]."

8 AIR 1933 Lahore 80. The deceased was the child of a Sunni father and a

Shi'i mother; he was married to a Sunni. The contest was between the sister of the

deceased (who claimed he was a Sunni) and the widow and daughter of the

deceased (who claimed he was a Shi'i ).

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THE ISLAMIC LAW OF SUCCESSION

Court held that testimony under oath in which the deceased had

identified himself as a Sunni had been an act of perjury, and found

from other evidence that the deceased had actually been a Shi'i. The

deceased in this case had publicly associated himself with Shi'i causes

and had prepared a draft of a will which contravened Sunni rules.

Impressive oral evidence also supported the conclusion of the Court.

Failing direct evidence on the point, circumstantial evidence con-

cerning the manner in which the deceased said his prayers or the

particular ceremonial rituals he observed may indicate an identification

with one or other sect. The manner in which domestic ceremonies were

conducted and the identification of those invited to preside on such

occasions may be relevant. For obvious reasons, the manner in which

the funeral of the deceased was conducted is of limited evidential

value;9 the funeral rites are arranged by the relatives of the deceased

whose sectarian affiliation may be different from that of the deceased,

or who may have their own personal reasons for choosing one form of

ceremony in preference to the other. The deceased in Pathana v. Mst.

Wasai'0 left widow, daughter, and male agnatic collaterals. The funeral

prayers had been conducted by a Shi'i functionary. This fact did not

carry much weight with the Pakistan Supreme Court, which

commented: "The widow might have been anxious to make out that...

[the deceased] was a Shia, to serve her own property interests."''

If the oral evidence is unsubstantiated and conflicting, the Courts are

likely to be sceptical of its value.

In a case of this kind when both parties stand to gain or lose valuable

property the oral evidence is always to be approached with caution, and

it is safer to rely on that evidence which is in accord with admitted

circumstances and probabilities.12

9 Although in Mst. Sardar Bibi v. Muhammad Bakhsh (PLD 1954 Lahore 480;

daughter v. male agnate), the Lahore High Court found the fact that the funeral

prayers had been conducted by a Sunni maulvi "almost conclusive" in determining

the sect of the deceased.

10 PLD 1965 Supreme Court 134.

11 Ibid., 139. What was at stake was not the share of the widow, but the share

of the daughter: if P were a Shi'i , his daughter and his widow would take the

entire estate (daughter, 7/8; widow, 1/8); if he were a Sunni, the daughter would be

limited to her Qur'anic share of one-half, with three-eighths of the estate going to

the male agnate. It does not appear, however, that the widow acted with any

calculated design in mind. The statement of the Supreme Court continued: "[I]t

appears from the evidence that the services of . . . [the Shi'i maulvi] were

requisitioned as the Sunni maulvi was not available on this occasion." The

domestic ceremonies of the family were usually performed by a Sunni maulvi.

12 Mst. Sardar Bibi v. Muhammad Bakhsh, PLD 1954 Lahore 480, 488.

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Ranking prominently among the facts which carried weight with the

Court in this litigation was the fact that the deceased had financed the

construction of the village mosque, which was admittedly a Sunni

mosque, as inscribed on its walls were the names of the first four

Caliphs, three of whom are not recognized by Shi'is.

Failing evidence concerning the deceased and his immediate family,

evidence concerning the affiliation of the parents of the deceased may

identify the sect into which he was born and raised.

Every person is presumed to belong to the sect to which his father

belonged unless it appears that he renounced that sect and adopted

another. 13

The burden would be upon those who argued that the deceased had

renounced the sect of his forefathers and embraced another upon

reaching adulthood to lead evidence to prove that fact.

The ascertainment of the sectarian affiliation of the deceased is more

problematic in the case of a woman than a man. Women generally do

not participate in public worship in the mosque and their public

presence is in other ways restricted. The sectarian affiliation of the

woman's relatives may be particularly relevant clues to her own

affiliation. Although it is not necessary for a woman marrying a man

belonging to a different sect to adopt his affiliation as her own, the fact

that the deceased, originally a Sunni, had married a Shi'i was held in

Asgar Reza v. Abdul Hossein'4 to displace the assumption that, since

she was born a Sunni, she was a Sunni at her death. On the other

hand, the fact that a woman's father and her husband both belonged to

a particular sect raises a strong presumption that the woman her-

self was a member of that sect. In Mst. Sardar Bibi v. Muhammad

Bakhsh,15 in which a daughter in competition with male agnatic

collaterals argued that her mother had died a Shi'i, the Court observed:

"That a woman whose father and husband are Sunnis should become a

Shia is an event which is not very probable."'6

One indicator of sectarian affiliation is the rule of succession shown

to have been observed by members of the family on other occasions.

Evidence concerning the manner in which property in the family

devolved following previous deaths - that is, whether according to

13 Ibid.

14 (1888) ILR 15 Calcutta 574; agnatic brothers v. daughter's children.

15 PLD 1954 Lahore 480.

16 Ibid., 488.

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THE ISLAMIC LAW OF SUCCESSION

Sunni or Shi'i rules in circumstances in which different results would

follow the application of one scheme as opposed to the other - may

provide clues to the affiliation of those whose property so devolved and

raise an inference as to the affiliation of the larger kin-group.

(c) P leaves mother's brother's daughters and father's father's

father's brother's son's son. 17

The daughters of the maternal uncle of the deceased alleged that P was

a Shi'i and that they were her only legal heirs, while the more distant

male agnate claimed that P was a Hanafi Sunni and that he was the

sole heir. The trial Court found in favor of the maternal relations; this

decision was reversed by the Allahabad High Court, which found in

favor of the male agnate.

On appeal, the Privy Council,18 finding the oral evidence contra-

dictory, vague, and largely based on hearsay, preferred to rely on what

it considered less controversial and more reliable material to reach the

conclusion that P was a Sunni at the time of her death. One of the

circumstances upon which the Privy Council placed emphasis was the

manner in which her father's estate had been distributed among his

heirs, including his three widows, two of whom had been childless.

Focusing on the distinction between Sunni and (Ithna' 'Ashari) Shi'i

law concerning the rights of succession of a childless widow, the fact

that the two childless widows of P's father had received a share of his

landed property was interpreted as indicating that P's father had been a

Sunni:

If Ghulam Ali [P's father] was a Shia, his two childless widows had no

right ofinheritance19.... If he was a Sunni, then these widows were

proper heirs, entitled to a share of his estate along with his other

representatives, who were the same according to the rule of either sect.

That Ghulam Ali's ... childless widows received the shares which the

17 Facts taken from Hayat-un-nissa v. Muhammad Ali Khan, (1890) ILR 12

Allahabad 290 (Privy Council).

18 The Court of final appeal in respect to litigation originating in British-India.

After Independence, the new states of India and Pakistan each established its own

Supreme Court and appeals were no longer carried to the distant land across the

sea.

19 The childless widow is not totally denied a share of the inheritance in Ithna'

'Ashari Shi'i law; she takes her fractional share in all the property of her deceased

husband, except land. It is important to note that the term "Shia" as used by the

Privy Council refers only to Ithni' 'Ashari law; the Isma'ili Shi'i s do not deprive

the childless widow of her proper share in the landed property of her husband. This

crucial distinction between Ithni' 'Ashari Shi'i and Isma'ili Shi'i law was not

noted by the Privy Council.

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Sunni law allots to them, appears to be established by the evidence

[emphasis added].20

The second italicized statement - asserting that, excepting the childless

widows, the heirs of P's father would have been the same regardless of

whether he were a Sunni or a Shi' - would be accurate if P's father

left a son or son's son.21 However, it is abundantly clear from the

decision of the Privy Council that he did not.

Her father, Ghulam Ali, died without male issue in ... 1838, leaving

three widows, two of whom were childless. Besides the deceased,

whose succession is now is dispute, Ghulam Ali had another daughter

Kulsum, married to Iradat Ali, there being one son of their marriage

who died in minority [emphasis added].22

There is ... an attested copy of the official report made to the Collector

of Revenue on the occasion of Ghulam Ali's [P's father's] death, in

which it is stated that these two [childless] widows, along with the two

daughters [P and her sister] of the deceased ... and their mother were

his heirs at law.23

Given that P's father left no son, the fact that (in the obvious presence

of a male agnate)24 the widows and daughters of P's father took his

entire estate25 constitutes far more conclusive and more dramatic

evidence to the effect that P's father was a Shi'i than that provided for

the contrary proposition by the fact that the childless widows took a

share of the landed property of their husband (as they would have done

had he been an Isma'ili, as opposed to an Ithnt' 'Ashari, Shi'i). The

fractional shares of the widows (1/24 each) are identical in Sunni and

Shi'i law, the only difference being that the childless Ithn' 'Ashari

widow does not take her fractional share of her husband's land; both

20 (1890) ILR 12 Allahabad 290 (Privy Council), 298.

21 Assuming, of course, that he had not left an agnatic grandfather or a "true"

grandmother as well. Elderly gentlemen are unlikely to leave grandparents among

their heirs. See articles cited in fn. 3 above.

22 (1890) ILR 12 Allahabad 290 (Privy Council), 293.

23 Ibid., 298.

24 At the time of the death of P's father, at least one of the following had to

have been alive: his father's father's brother, his father's father's brother's son; his

father's fathers' brother's son's son. This necessarily follows from the fact that P's

father's father's father's brother's son's son was alive at the time of P's death.

25 The collective share of the daughters of P's father would have been two-

thirds; the collective share of the widows, one-eighth. These shares total 19/24; if

P's father had been a Sunni, the residue of 5/24 would have gone to the male

agnate. There is nothing in the decision to indicate that the male agnate took any

part of the estate of P's father, indeed, the contrary is clearly implied. If P's father

had been a Shi'i, his daughters would have taken the residue by radd (return of the

residue to blood Qur'anic heirs).

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THE ISLAMIC LAW OF SUCCESSION

the Isma'ili Shi'i and the Sunni widow, even if childless, would take

her appropriate share of the landed property. The male agnate would

take nearly one-fourth (5/24) of the estate if the parties were Sunnis

and nothing at all if they were Shi'is; it appears clear that he took

nothing.

The Privy Council concluded that P was born a Sunni; that during

her marriage to a "staunch member of the Shia sect" she had con-

formed to Shi'i rites and observances; and that after the death of her

husband (some sixteen years before her own demise) she had reverted

to her original affiliation and had died a Sunni. The evidence relied

upon to establish the reversion to the Sunni fold would have been much

less convincing (and probably would have failed to carry the point) had

it not been for the finding that her father was a Sunni and the inference

therefrom that she had been bor and raised a Sunni.

The Estate of Fatima Jinnah

By far the most interesting and controversial case to come before the

South Asian Courts in which the question of the sectarian affiliation of

the deceased constituted the major issue in the litigation arose in the

following circumstances:

(d) P leaves germane sister and father's brother's agnatic grand-

sons.26

The propositus was none other than Fatima Jinnah, sister of

Muhammad Ali Jinnah, the leader of the movement for, and the first

Governor-General of, Pakistan. Miss Jinnah's sister asserted that she

was an Ithna' 'Ashari Shi'i and claimed her entire estate; the male

agnatic relatives claimed that she was a Hanafi Sunni and that they

were entitled as residuaries to half of her estate.

Muhammad Ali Jinnah and his sisters were born Isma'ili Shi'is;

he renounced that sect and became an Ithna' 'Ashari Shi'i.27 It was

agreed that his sister, Fatima Jinnah, was also no longer an Isma'ili;

had she too become an Ithna' 'Ashari or had she elected to become a

Hanafi?

The evidence was conflicting and inconclusive. The observances of

her brother's death anniversary which she organized every year were

26 Shirin Bai v. Muhammad Ali, PLD 1970 Karachi 450; Hussain v. Mansoor

Ali PLD 1977 320; Amir Ali v. Gul Shaker, PLD 1985 Karachi 365.

27 Apparently because of the disapproval of the Isma'ili community over the

marriage of two of his other sisters to Sunnis.

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presided over by a Sunni functionary, but these were public events and

the majority of people in Pakistan are Sunnis. Her own public funeral

was presided over by a Sunni functionary, but prior to the public

ceremony private prayers, attended by close friends and at least some

family members, were conducted according to Shici rites.

During her lifetime Miss Fatima Jinnah had not publicly observed

distinctive Shi'i rituals or patronized Shi'i institutions. As had her

distinguished brother, with whom she was closely associated, she

declared that she was neither Sunni nor Shi'i, but a "Mussalman;" one

witness quoted her as explaining that "the Prophet of Islam had given

us Muslim Religion and not Sectarian Religion."28

Counsel for two of the agnatic claimants argued that the Court could

find that the deceased did not belong to either of the two major

divisions of Islam and was simply a Muslim. In such a circumstance,

counsel submitted, the Court must apply the law as laid down in the

Qur'an without concerning itself with the interpretations of either sect.

The Qur'anic reference was to Sura IV, verse 176:

They ask thee for a legal decision. Say: God directs (thus) about those

who leave no descendants or ascendants as heirs. If it is a man that

dies, leaving a sister but no child, she shall have half the inheritance. If

(such a deceased was) a woman, who left no child, her brother takes

her inheritance. If there are two sisters they shall have two-thirds of the

inheritance (between them): if there are brothers and sisters (they

share), the male having twice the share of the female.29

The direction that the sister of a person who leaves neither ascendants

nor descendants nor brother, takes half the estate applies equally

whether the deceased is male or female, and irrespective of the

sectarian affiliation of the parties.

Counsel's argument, however, begs the question of what happens to

the other half of the estate remaining after the sister has been given her

share (one-half) as a Qur'anic heir. The surviving spouse (if present)

would, of course, take his or her share:30 if P were a childless woman

survived by her husband and her sister, her husband would take one-

half of her estate and the sums would equal unity. But if there were no

28 PLD 1977 Karachi 320, 330.

29 Yusuf Ali, trans.

30 Sara IV, verse 12: "In what your wives leave, your share is a half, if they

leave no child; but if they leave a child, ye get a fourth; after payment of legacies

and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye

leave a child, they get an eighth; after a payment of legacies and debts" (Yusuf Ali,

trans.).

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THE ISLAMIC LAW OF SUCCESSION

surviving spouse, or if the spouse relict were a widow, one-half or one-

fourth of the estate (respectively) remains unallocated. The Qur'an does

not specifically provide for this situation and the solution has been

worked out differently by jurists of the two sects. The Sunnis pass the

residue to the nearest male agnate; the Shi'is return it to the sister by

radd.31

Counsel who urged the application of the law found in the Qur'an

without reference to sectarian interpretations contended that if succes-

sion were regulated strictly by the Qur'an, rather than by one of the

systems of personal law, the half of the estate remaining after the sister

of the deceased had been awarded her share of one-half would go to

the male agnates. This is nothing less than the Sunni position by

another name. For the Court to hold that such a method of distribution

was the "Qur'anic law" would be tantamount to ruling that the inter-

pretation of the Shi'i jurists was contrary to the word of God.

Similarly, for the Court to hold that, applying the verses of the

Qur'an, the sister was entitled to the entire estate would be equivalent

to ruling that centuries of Sunni jurists had been in violation of the

sacred commandments. For the Court to find that the Qur'anic

verses, properly interpreted, actually led to a third alternative32 would

31 See articles cited in fn. 3 above.

32 For example, ruling that the excess portion of the estate escheated to the

state, thus ousting the male agnate in the presence of a blood Qur'anic heir nearer

in degree and confining the Qur'anic heirs to their Qur'anic shares.

Alternatively, the agnates might have invoked verse 12 of sara IV of the Qur'an

(the first part of which has been quoted in fn. 27 above): - "If a man or woman

whose inheritance is in question has left neither ascendants nor descendants, but

has left a brother or a sister, each one of the two gets a sixth; but if more than two,

they share in a third; after payment of legacies and debts; so that no loss is caused

(to anyone)" (Yusuf Ali, trans.). This verse, which purports to give a sibling of the

deceased (in the absence of ascendants and descendants) only one-sixth of the

estate, might appear to be in conflict with IV:176 (which confers in like

circumstances, and in the further absence of a brother, one-half of the estate on the

sister). This discrepancy is resolved in the classical law (both Sunni and Shi'i) by

holding that the sibling referred to in IV:12 is the uterine brother or sister of the

deceased (children of the same mother as P but having a different father), while the

siblings referred to in IV:176 are agnatic siblings of P (having the same father,

whether or not they also have the same mother). While agnatic brother and sister, if

present together, inherit on the basis of two shares to the male and one share to the

female, uterine siblings share equally in their collective entitlement irrespective of

sex.

Counsel for the agnates was obviously willing to let the (agnatic) sister have her

full share of one half, without arguing that the Qur'an, properly interpreted, gave

the sibling only one-sixth. His inability to raise the latter argument derived not

merely from the fact that in so doing he would have been taking, on not either

Sunni or Shi'i jurisprudence, but both. More immediately relevant is the fact that if

the agnatic sibling of the deceased - and note that IV:12 expressly encompasses

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LUCY CARROLL

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be to condemn both major schemes of succession as "un-Qur'anic."

Not surprisingly, the Single Judge of the Karachi High Court who

presided at the trial rejected the suggestion that were the deceased found

to be neither a Sunni nor a Shi'i, succession to her estate would be

governed by the Qur'anic verse as inteipieted by the Court:

I cannot see... how a new theory can be propounded for the interpre-

tation of the text of the Qur'an in the matter of succession which can be

independent of the rival theories of great authority and antiquity pro -

pounded by the two sects. Indeed, learned counsel did not suggest any

such interpretation of the regulations of the Qur'an which could be in-

dependent of the two recognized systems. The interpretation he sought

to place upon the verses of the Qur'an were [sic] exactly in consonance

with the Sunni theory ... [emphasis added].33

The judge stressed that the issue as to the sectarian affiliation of the

deceased did not arise in a religious context, but in the legal context of

identifying the personal law which would govern the devolution of her

estate. He supported his conclusion that Fatima Jinnah's statement that

she was neither Sunni nor Shi'i was not intended to deny the appli-

cation of the personal law of one of these sects to her property by

noting that, although her brother (Muhmmad Ali Jinnah) had con-

sistently and repeatedly identified himself as neither Sunni nor Shi'i but

simply a Muslim, the deceased herself had asserted that he was subject

to Shi'c law when she applied for a succession certificate34 in respect of

both the male and the female sibling - were limited by the Qur'in to a share of

one-sixth, how could it possibly happen that a much more distant relative, also

claiming by virtue of an agnatic connection, should take a share five times as

33 PLD 1977 Karachi 320, 346; Zafar Hussain Mirza, J.

34 Although Muslims (except those Indian Muslims whose marriage has been

solemnized or registered under the Indian Special Marriage Act, 1954; see below)

are exempt from most of the provisions of the Succession Act, 1925, a succession

certificate issued under the Act is necessary in order to collect a debt owed to the

estate of the intestate deceased (and e.g. to recover or deal with assets in the form

of securities belonging to the intestate deceased). This essentially protects the

person owing the debt or holding the securities who makes payment to one of the

heirs from claims on behalf of other heirs. No individual heir represents the estate;

thus no heir is able to give a release to the debtor on behalf of his co-heirs, and the

debtor may not know who the heirs of the deceased are, or in what proportion they

are severally entitled to his property. The succession certificate authorizes the heir

or heirs named in it to recover the debt or the securities (in whole or in part);

payment made to the holder of such certificate indemnifies the debtor from further

claims in regard to the debt (or portion of the debt) so paid. The Court issuing a

succession certificate to an heir may require him to post a bond guaranteeing that

he will render an account of the debts received, etc. and indemnify other heirs who

may have rights in the property recovered from the debtor or securities dealt with,

etc.

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THE ISLAMIC LAW OF SUCCESSION

his property. Since she had not interpreted her brother's statement as

indicating that he was not subject to the application of the appropriate

personal law, the judge reasoned that she had not intended that her

identical statement should be interpreted to deny her legal subjection to

one or other system of personal law.

Counsel for the agnates had attempted to support his argument that

the Court could itself interpret the relevant verses of the Qur'an in order

to ascertain "the law of the Qur'an" (as opposed to Sunni or Shi'i law),

and could then apply that law to a person who could not be identified

as either a Sunni or a Shi'i by reference to some of the decisions in

which the Courts of Pakistan had undertaken such an interpretation

or reinterpretation in other contexts. The main example he cited as

providing a useful analogy in the present situation concerned the

innovative Pakistani decisions recognizing the wife's right to judicial

dissolution of her marriage by khul' decreed in the face of her

husband's opposition and in spite of the wife's inability to establish

one of the grounds available to her under the Dissolution of Muslim

Marriages Act, 1939.35 The trial judge found the analogy inappro-

priate:

All those cases related to the interpretation of the Hanafi Law and its

exposition by the great Imams of that school. Apart from the fact that

there is some divergence of opinion between the several Imams of that

school, the Imams themselves did not claim finality for their exposition

of the Muslim Law, leaving scope for the subsequent generations of

jurists to form their own opinion if they felt compelled to differ from

theirs. It is in this context that in these cases the Court resorted to its

own interpretation of the law with the help of the authorities or directly

invoking the text of the Qur'an. These cases are, therefore no authority

for the proposition that the Court can do away completely with the

35 Khul' is traditionally a divorce obtained extra-judicially by agreement

between the spouses, usually involving payment of a ransom by the woman. The

superior Courts of Pakistan have evolved (on the basis of a reinterpretation of sara

II, verse 229 and the hadith concerning Jamila and her unhandsome husband Sabit)

an additional form of khul' obtainable from the Court on the wife's demand

without the necessity proving grounds for judicial divorce (such as those available

to South Asian women under the Dissolution of Muslim Marriages Act, 1939) and

without the necessity of the husband's concurrence, but involving payment of

reparations by the wife. See Mst. Balqis Fatima v. Najmul Ikram Qureshi, PLD

1959 Lahore 566; and Khurshid Bibi v. Muhammad Amin, PLD 1967 Supreme

Court 97.

Another example of judicial reinterpretation of the classical law is found in the

reinterpretation by the Pakistani Courts of the Hanafi law concerning arrears of

maintenance due a wife. See Lucy Carroll, "Muslim Family Law in South Asia:

Important Decisions Regarding Maintenance for Wives and Ex-Wives," Islamic and

Comparative Law Quarterly, i (1981), 95-113.

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authoritative interpretation and evolve an entirely new mode of inter-

pretation of Muslim Law.36

If it is only within the parameters of the existing divisions of personal

law that reinteipletation is possible; if a totally new and novel interpre-

tation, independent of and alternative to these divisions, is incon-

ceivable, it follows that every Muslim has to be subject to one of the

two historical divisions of Islam, at least for legal purposes.

Thus, at least for the purpose of determining the law that would

govern succession to her property, Miss Fatima Jinnah had to be

subject to either Ithni' 'Ashari Shi'i or Hanafi Sunni law. The trial

judge refused to invoke the presumption that, given the numerical

preponderance of the Hanafis, the deceased was a Hanafi.

I am clearly of the opinion that the evidence is by no means evenly

balanced and although it is not possible to come to a conclusive

decision, it is nevertheless not difficult to come to a finding upon the

principle of preponderance of evidence ... [T]here are only scattered

bits and pieces bearing on [the] question of faith of the deceased and on

the whole the case lacks in clear or decisive evidence on the issue ....

[I]n civil cases a mere preponderance of probability is a sufficient basis

for decision ....37

In the evaluation of the trial judge, the evidence adduced favored the

conclusion "that the deceased chose to be governed by the Shia law and

not by the Sunni Law."38

The 1977 decision of the Single Judge of the Karachi High Court

was appealed to a larger bench of the same Court. In a dramatic

development, the Appellate Bench declared itself "unable to hold that

every Mussalman must either be a Shia or a Sunni:" the division into

Sunni and Shi'i branches occurred long after the death of the Prophet;

Islam predated both sects and an individual might be a "pure and

simple Muslim," guided by and subject to the law of the Qur'an, rather

than to the interpretations of the classical jurists of either sect39

[W]e are of the view that, while considering the question of sectarian

belief of Mohtarma Fatima Jinnah, this point too has to be considered,

whether, if she was not a Sunni or [a] Shia, was she not a Muslim,

and, if she was, does the Qur'in not provide for distribution of her

assets.... [W]e are clearly of the view that, if it is not established that

36 PLD 1977 Karachi 320, 347.

37 Ibid., 342.

38 Ibid., 350.

39 Amir Ali v. Gul Shaker, PLD 1985 Karachi 365, 378; Abdul Hayee Kureshi,

C.J., & Abdul Razak A. Thahim J.

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THE ISLAMIC LAW OF SUCCESSION

she was a Sunni or [a] Shia, then her estate has to be distributed in

accordance with the pure Muslim Law, as stated in the Qur'an itself.40

Significantly, the Appellate Bench failed to make the distinction which

the trial Court had made between the appellations "Sunni" and "ShiT'i

in a religious context and indicating ideological conformity with the

tenets and rites of a particular sect, and the same appellations in the

context of personal law. It is one thing to say that every Muslim must

be identified and identifiable as a Sunni or a Shi'i in terms of religious

beliefs and/or affiliation - an identification which Miss Jinnah, as her

brother, expressly refuted. It is quite another thing to say that every

Muslim must be amenable to either Sunni or Shi'i personal law. As the

trial Court realized, not only are these two propositions distinct and not

mutually exclusive, but in the recognition of their distinctiveness and

their mutual compatibility is found the only way out of what otherwise

is an impossible conundrum.

Reviewing and reconsidering the evidence adduced in the 1968

application for the succession certificate in regard to the estate of Miss

Fatima Jinnah and in the 1976 trial, the Appellate Bench concluded that

the sister of the deceased had failed to establish by a balance of

probabilities that the deceased was a Shi'i, and that the agnatic

relatives had likewise failed to establish that she was a Sunni. The

presumption that she was a Hanafi was not invoked because the Court

found the evidence sufficient to reach a definite conclusion concerning

the religious belief of the deceased. Overruling the 1977 decision in

favor of the sister of the deceased, the Appellate Bench held:

We are of the view that Mohtarma Fatima Jinnah was neither a Sunni

nor a Shia, but she was Muslim in accordance with Qur'anic concepts.

She was free from sectarian classification, and therefore her property

has to be distributed in accordance with the pure Islamic law, as is

contained in Sura Nisa.41

Although the premise that Miss Jinnah was free from (or above)

sectarian classification in terms of her religious preferences and identi-

fication is undoubtedly correct, the conclusion drawn by the Appellate

Bench that, therefore, she was subject to neither Sunni nor Shi'i

personal law does not necessarily follow. If that conclusion is assumed

to follow, a hopeless impasse is reached.

With this impasse the Appellate Bench did not attempt to deal. It did

40 Ibid., 379.

41 Ibid., 384. The relevant verse has been quoted in the text above.

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38

not venture upon an inteplretation of the relevant Qur'anic verses or

define the provisions of the "pure Islamic law" it held applicable to the

situation; it did not answer the crucial question of what happens to the

half of the estate remaining after the germane sister has been awarded

her Qur'anic share.42 These issues were left to be determined in further

litigation.

Immediately after the decision of the Appellate Bench had been

announced, counsel on both sides applied for a consent order remand-

ing the case to the trial Court, with permission for either side to lead

further evidence and make further submissions in regard to the faith

and sectarian affiliation of the deceased. This application was granted;

further information on this provocative litigation is not available.43

Sunni or Sh[' law -Can P Be Given a Choice?

Daughters and descendants of daughters in competition with agnatic

collaterals are much more favorably placed in the Shi'i scheme of

succession than in the Sunni scheme. The fact that in order to ensure

that his property passes to his direct descendants, a Sunni must leave a

son or agnatic grandson surviving him, has repercussions on family

planning programs; rationalizes the lesser value placed on daughters;

and contributes to the instability of marriages and the incidence of

polygyny, since women are blamed for the sex of the child they bear.

Even Sunni parents who are satisfied with the children God gave them

may resent the fact that since they have only daughters, a significant

share of their properties will pass to someone other than the members

of their immediate family.

There is a relatively simple solution to the latter problem if the

parties are Indians: the Indian Muslim couple may register their

previously-solemnized Muslim marriage under the (Indian) Special

(i.e., civil) Marriage Act, 1954. Registration of an existing marriage

(like solemnization of a marriage) under this statute has the effect, inter

42 The Appellate Bench did remark: "It was brought to the notice of the learned

Single Judge that Sura Nisa had provided that the right of inheritance of a

surviving sister is to the extent of half and the remaining half has to go to the

agnates of the deceased" (ibid., 378). This is clearly a reference to the argument of

counsel and not a finding by the Appellate Court. The Qur'an is silent concerning

the fate of the remaining half of the estate.

43 I have recently been informed that the parties to the dispute over devolution

of the estate of Miss Fatima Jinnah reached an out-of-court settlement. Although it

is certainly in the interests of the parties that the dispute which had disrupted the

family for more than two decades should be resolved, the legal and logical

questions posed by the litigation remain unresolved and unanswered.

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THE ISLAMIC LAW OF SUCCESSION

alia, of ousting the Muslim law of succession and making the

Succession Act, 1925, applicable to the estate of each spouse. The

provisions governing intestate succession contained in the 1925 Act do

not discriminate on the basis of sex either at the point of admission to

heirship or at the point of allocation of shares in the estate of the

deceased. Any lineal descendant ousts any other relative except the

surviving spouse; contrary to Muslim law (which gives the son a share

equivalent to twice the daughter's share), males and females inherit

equally. The widow of the deceased also fares better under the

Succession Act: the share of the surviving spouse (either sex) present

with lineal descendants is one-third, compared with one-eighth in the

case of a widow and one-fourth in the case of a widower under

Muslim law.44 Further, the Succession Act confers complete testa-

mentary freedom upon an individual; he may dispose of all of his estate

by will in whatever manner he chooses, without the necessity of any-

one's consent.45

Even in India, however, there is no way that an individual can

unilaterally render the Succession Act applicable to his or her estate,

other than by conversion to Christianity. Registration (or solemni-

zation) of a marriage under the Special Marriage Act, 1954, requires

the active participation of both spouses. A bachelor or a spinster, a

widower or a widow cannot elect to invoke the application of the

Succession Act to his or her estate through the medium of the Special

Marriage Act.

Since the Special Marriage Act of 1872, applicable in Pakistan and

Bangladesh, cannot be availed of by any couple one or both of whom

are Muslims, the only way a Muslim in either of these countries can

oust his personal law of succession and bring his estate under the

Succession Act, 1925, is by renouncing the religion of Islam,46 a step

few would even consider.

Although conversion of a Sunni Muslim to a Shi'i sect would attract

the Shi'i law of succession to the property of the convert, this again

may be an unattractive option, given the minority status of the Shi'i

44 Assuming, in the case of Sunnis, that the descendant is agnatically related

to P.

45 Under Muslim law, of course, the propositus cannot dispose of more than a

third of his estate by means of a will, and (if a Sunni) cannot make a bequest in

favor of an intestate heir, unless (or to the extent that) the will is ratified by the

heirs whose interests it adversely affects.

46 By conversion to Christianity; or by becoming an agnostic/atheist; or by

conversion to Hinduism followed by marriage to another Hindu under the Act of

1872.

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community in South Asia and the strong emotional attachments to

institutions, historical traditions, and personages revered by the one sect

and denigrated by the other.

Could a Sunni Muslim, without converting to a Shi'i sect, elect to

follow the Shi'i law of succession? In upholding the Muslim wife's

right to arrears of maintenance (a right not recognized by classical

interpretations of Hanafi law), the Quetta High Court in 197847

specifically referred to Shici law (as well as Shafi'i law) as the source

of the more liberal rule in favor of the wife's claim, and justified

applying this rule to the Hanafi litigants before it by observing that

there "is consensus of... opinion that these are only different schools

of thought as far as Islamic jurisprudence is concerned and not dif-

ferent religions so as to prohibit the following of each other's footsteps

in some matters or principles."48

If the Sunni and Shi'i branches of Islam are "only different schools

of thought as far as Islamic jurisprudence is concerned," and if there is

no prohibition on "following each other's footsteps," can there be any

objection if a Sunni were voluntarily to choose to govern a particular

aspect of his affairs by reference to Shi'i interpretations? The decision

of the trial Court in regard to the estate of Fatima Jinnah49 was to the

effect that a Muslim must be either Sunni or Shi'i as far as his legal

position is concerned. The Appellate Bench asserted the right of a

Muslim to be neither Sunni or Shi'i, and held that to such a person the

"pure Islamic law" (whatever that might be) would be applicable.50 The

deceased in this case had left no definite indication as to how she

wished her estate to be distributed. Had Fatima Jinnah left instructions

for her estate to be distributed according to Shi'i law, this would have

constituted the strongest evidence on record concerning her sectarian

affiliation and the personal law to which she was subject, and would

have determined the matter.

The real question is whether a person who is and claims to be a

Sunni can elect to have his estate distributed according to Shi'i rules.

The difficulty which arises is very fundamental: instructions to the

effect that his estate be distributed according to the Shi'i law of suc-

cession would be regarded as a will, and if the testator were a Sunni at

the time of his death, his capacity to make a will would be determined

47 Mst. Gul Bibi v. Muhammad Saleem, PLD 1978 Quetta 117. See article cited

in fn. 35 above.

48 PLD 1978 Quetta 117, 119.

49 Hussain v. Mansoor Ali, PLD 1977 Karachi 320.

50 Amir Ali v. Gul Shaker, PLD 1985 Karachi 365.

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THE ISLAMIC LAW OF SUCCESSION

by reference to Sunni law. Thus any disposition beyond one-third of his

estate and any disposition in favor of an heir, to the extent that these

dispositions were not ratified by the heirs after the testator's death,

would be void. Litigation involving wills made by Sunnis and trans-

gressing the Sunni rule concerning bequests to an heir illustrates the

legal inability of a Sunni to devise his estate according to Shi'i rules in

the absence of the consent of his legal heirs.

Legislation affording Sunni Muslims in South Asia the option of

adopting the Shi'i scheme of succession, both testate and intestate,

might appear desirable. This minor reform would permit couples whose

only off-spring were female to secure their entire estates to their

children, and enable a husband (or wife) to increase the share of his (or

her) property passing to the surviving spouse by means of a will

disposing of up to one-third of the estate. The Shi'i scheme of

succession, with its emphasis on the nuclear family and direct descen-

dants, in preference to the extended family and agnatic ties, is arguably

much more suited to emerging social circumstances; it undeniably is

much more favorable to female members of the immediate family

(nuclear family and direct descendants). Such a suggestion, however,

would encounter political opposition. The outcry on the part of Muslim

spokesmen which greeted the (Indian) Adoption of Children Bill and

led to its eventual withdrawal from consideration provides an indica-

tion of the response to be expected from the same quarters to the

suggestion that Hanafi Muslims might be permitted to elect to order the

devolution of their property according to Shi'i rules. After all, the same

(very material) interests which were threatened by the possibility that a

childless agnatic relative might be enabled to adopt an heir will be

equally threatened by the possibility that a sonless agnatic relative

might be enabled to invoke the Shi'i law of succession to his estate.

Postscript

Since writing this article I have had occasion to read David Powers'

Studies in Qur'an and Hadlth: The Formation of the Islamic Law of

Inheritance.5s Against the background of the discussion above con-

cerning whether a Sunni Muslim might be able (or empowered by

legislation) to adopt the ShI'i scheme of succession - an option which,

inter alia, would increase his testamentary power - it is particularly

interesting to note Powers' conclusions regarding the development of

51 Berkeley: University of California Press, 1986.

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the Islamic law of testate succession. According to his analysis, neither

the restrictions on testamentary power (no bequest to an heir; no

bequest exceeding one-third of the estate) nor the compulsory division

of at least two-thirds of the estate according to the "science of the

shares" were part of the law as revealed to Muhammad and under-

stood by the community during the Prophet's lifetime. The law of

Muhammad's day, as reconstructed by Powers "allowed for full testate

succession, including the designation of a testamentary heir"52 - a

degree of testamentary freedom far exceeding that which today is

recognized by the Shi'i schools.

Powers' intriguing and scholarly study attempts an interpretation of

what the Appellate Court in the Fatima Jinnah case referred to as the

"pure Muslim law, as stated in the Qur'an itself."53

52 Ibid., p. 18.

53 As applied to the facts of that case, Powers' distribution, as I comprehend

his argument, would lead to a result (coincidentally) identical to that decreed by

Hanafi law.

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