Define "Residuaries" under the Muslim Law.

Question: Define "Residuaries" under the Muslim Law. [RJS 1986]

Find the question and answer of Muslim Law only on Legal Bites. [Define "Residuaries" under the Muslim Law.]

Answer

Muslim law recognizes two types of heirs, Sharers, and Residuaries. Sharers are the ones who are entitled to a certain share in the deceased's property and Residuaries would take up the share in the property that is left over after the sharers have taken their part. In other words, "Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied;

Residuaries ('asabah)

These are heirs who:

Inherit the whole estate when they are the only heirs but in the presence of other heirs who do not exclude them, they receive the residue.

When they are the only heirs, they are given ½ or 2/3 of the estate, but in the presence of some "specific" heirs, they

a) Share the residue with those "specific" heirs, or

b) Receive the residue after some "specific" heirs [different from those in (a)] have gotten their shares of the estate.

In other words, there are 3 categories of residuaries:

i) Residuaries by themselves (i.e. those that satisfy 1 above).

ii) Residuaries by another (i.e. those that satisfy 2a above).

iii) Residuaries with another (i.e. those that satisfy 2b above)

Residuaries by themselves ('Asabah bin-Nafs)

These are:

• Son
  
• Grandson or his descendant
• Father
• Grandfather or his ascendant
• Full brother
• Consanguine brother
• Full brother's son or his descendant
• Consanguine brother's son or his descendant
• Full paternal uncle
• Half paternal uncle
• Full paternal uncle's son or his descendant
• Half paternal uncle's son or his descendant

The aforesaid members of the set inherit the whole estate or the residue when other heirs who do not exclude them are present. Of course, son and father cannot be excluded by any heir. Likewise, grandson (or his descendant) and grandfather (or his ascendant) in the absence of son and father respectively cannot be excluded.

Now, there seems to be a problem. If two heirs (of different classes) listed above are present and both are eligible to inherit, will they share the whole estate or residue among themselves? No, the heir occupying a higher position in the hierarchy takes the residue, while the second one is given his due share of the estate.

For example, a man leaves behind a wife, two sons, and a father. The wife is given 1/8. This is clear. But the two sons on one hand and the father on the other hand are both residuaries by themselves. However, since the sons are above the father (i.e. they occupy the 1st position while the father comes 3rd), he (the father) is given 1/6 of the estate while the two sons share the residue equally.

Supposing the surviving heirs were to be grandson, grandfather, and consanguine brother; the grandfather can inherit along with a consanguine brother but grandson excludes the latter. As a result, grandfather receives 1/6 while grandson gets the residue given that he is above grandfather in the hierarchy.

Residuaries by another ('Asabah bil-ghair)

This category has 4 heirs. They are:

a) Daughter

b) Granddaughter through son

c) Full sister

d) Consanguine sister

Each is entitled to ½ of the estate if alone while two or more share 2/3 of the estate equally if they are not excluded. Note that daughter cannot be excluded. Now, if any of these listed heirs is inheriting along with her male counterpart (i.e. son, grandson, full brother and consanguine brother respectively), she is no longer given ½ or 2/3 as the case may be. She becomes a residuary with the male. This has already been discussed under the subheadings: son(s) and daughter(s), grandson(s) and granddaughter(s), full brother(s) and full sister(s) as well as consanguine brother(s) and consanguine sister(s).

Residuaries with another ('Asabah ma'al ghair)

These are full sisters and consanguine sisters. In the presence of daughter(s), granddaughter(s) through son(s), or a combination of daughter and granddaughter(s), full sister or consanguine sister (if not excluded) will abandon her ½ or 2/3 (if more than one) to become residuary.

For instance, the heirs of a deceased are three daughters, two granddaughters through a son, one full sister, and a grandmother. How will the estate be allotted to them? The three daughters will share 2/3 equally, grandmother gets 1/6 while the full sister is given the residue. The two granddaughters are excluded.

Assuming a grandson is added to the heirs, daughters will still get their 2/3, grandmother retains her 1/6, but now the granddaughters will be the residuaries due to the presence of the grandson. So, the three of them (i.e. grandson and two granddaughters) will share the residue in a ratio of 2 to 1 to 1. This implies that the full sister is excluded.

Note that if the estate gets exhausted such that there is no leftover, residuaries receive nothing. Exceptions to this rule are son and father who are "basic heirs." No circumstance will arise in which the duo will become "spectators." In their absence, the grandson (or his descendant) and grandfather (or his ascendant) respectively replace them to become basic heirs.

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