SHIA LAWS OF INHERITANC E G.ARJUN 756 6th Semester
TABLE OF CONTENTS
1. 2. 3. 4. 5. 6. 7.
INTRODUCTION LAW OF SUCCESSION- BASIC PRINCIPLES TABLE OF SHARERS RULES OF SUCCESSION DOCTRINE OF RETURN AND INCREASE MISCELLANEOUS MISCELLANEOUS PRINCIPLES CONCLUSION
INTRODUCTION
The Shia school owes its origin to Imram Jafar as- Sadik the 6 th Imam of the Imamis. This makes it earlier in point to most of the Sunni schools discussed above. There are many differ difference encess betwee between n Shia Shia and Sunni Sunni jurisp jurisprud rudence ence.. Shias Shias do not accept accept any traditi tradition on attributed to the rophet unless it comes from the household of the rophet ! ahl-i-Bait ". ". They also do not accept the validity of any decision not endorsed by an Imam. The Shias are found in ersia where they form the largest majority. #lsewhere$ they are generally in a minority. The School of %uta&ilas is a rationalist branch founded by 'asil bin (ta. )e was a pupil of Imam )asan of *asra$ a liberal philosopher$ but went beyond his master and is known as a dissenter. +wing to the fact that Sunnis are in majority in akistan$ their law of inheritance is relatively well appreciated by lawyers and students of law$ while Shia law of inheritance does not have such an advantage. It is familiar in scholarship on Islam that the most striking difference between Sunni and Shia legal systems is their distinct laws of inheritance. , These differences are so deep rooted that it is near near impo impossi ssibl blee to brid bridge ge them them.. It does does not not mean mean that that there there is no space space which which is characteri&ed by similarity. (t least there are uite a few spaces where these different legal traditions rely on the same types of shares and suggest the same sort of solutions to practical problems. The most authoritative tet book of the Shia /aw is Sharaya-u0-Islam 1$ the whole of which has been translated into 2rench by %. 3uery under the title Droit Musliman. Musliman.
1 4oulson$ 5.J. Succession in the %uslim 2a mily !4ambridge niversity ress$ /ondon ,78,"$ p.
,9: (ltai )asan ;han 0 !,:71" ,< (. <17. <=9 0 +skar (li ;han v. (niuman (niuman (ra 2 (gha (ll ;han v. (ltai *egum 0 !,791" >9 I ( 7<$ ,,1. 1= (ll. (ll. 1>6 0 (ga Sheralli v. *ai ;ulsum 0 !,79:" >1 *orn. =<9$ ==: 0 (&i& *ane v. %uhammad Ibrahim 0 !,71=" <8 (ll. :1>$ at opp. :1:. :17. :>6. :7 I 4 679 0 !?1=" ( ( 819
LAW OF INHERITANCE- BASIC PRINCIPLES 1. Divisi! " H#i$s% The Shias divide heirs into two groups$ namely$ namel y$ !," heirs by consanguinity$ that is$ blood relations$ rela tions$ and !1" heirs by marriage$ that is$ husband and wife 2. T&$## C'(ss#s " H#i$s )* +!s(!,i!i*% !," )eirs by consanguinity are divided into three classes$ and each class is sub-divided
into two sections. These classes are respectively composed as follows@A ,. (1) arents@ (ii) children and other lineal descendants h.l.s. II. (i) Brandparents h.h.s. !true as well as false" 0 (ii) *rothers and sisters and their descendants h.l.s. Ill. (i) aternal$ and (ii) maternal$ uncles and aunts$ of the deceased$ and of his parents and grandparents h.h.s.$ and their descendants h.l.s. !1" +f these three classes of heirs$ the first ecludes the second from inheritance$ and the second ecludes the third. third. *ut the heirs of the two sections of each class succeed together$ the nearer degree in each section ecluding the more remote in that section C*aillie$ II$ 186$ 1:9$ 1:=D. > nder the Sunni law$ Eistant ;indred are postponed to Sharers and Fesiduaries0 under the Shia law$ they inherit with them. The Sunnis prefer agnates to cognates the Shias prefer the nearest kinsman$ whether they be agnates or cognates. In fact$ the Shia law does not recogni&e any separate class of heir?s corresponding to the GEistant ;indredG of Sunni law. (ll heirs under the Shia law are either Sharers or Fesiduaries.
3. Hs)(!/ (!/ Wi"#% The husband or wife is never ecluded from succession$ but inherits together with the
nearest heirs by consanguinity$ the husband taking H or and the wife taking ,: or H under the conditions mentioned in the Table Table of Sharers.
<
4. T()'# T()'# " S&($#$s% 3 (lso applied in akistan @ %st. Sahib *ibi v. %uhammad 0 / E ,76, !' " /ail. ,9>9.
4 %st. Sahib *ibi v %uhammad ./.E$ ,76, !'.." /ah I9>6
!," 2or the purpose of determining the shares of heirs$ the Shias divide heirs into two class classes$ es$ name namely ly$$ Share Sharers rs and and Fesid Fesidua uari ries. es. Ther Theree is no separa separate te class class of heir heirss corresponding to the GEistant ;indredG of Sunni law. !1" The Sharers are nine in number. The Table anneed gives a list of Sharer together with the shares assigned to them in Shia law. !>" The descendants h.l.s. of Sharers are also Sharers. +f the nine sharers mentioned in the Table$ the first two are heirs by affinity. The net three belong to the first class of heirs by consanguinity and the remaining four belong to the second class. There are not Sharers in the third class of heirs. 5. R#si/($i#s% !," (ll heirs other than Sharers are Fesiduaries.
!1" The descendants h.l.s. of Fesiduaries are also Fesiduaries. Thus Thus sons$ sons$ brot brothe hers$ rs$ uncl uncles es and and aunt auntss are are all Fesi Fesidu duari aries. es. Thei Theirr desc descen enda dant nts$ s$ therefore$ are also Fesiduaries. 2or eample$ a son?s daughter$ being a descendant of a Fesiduary !son"$ is also a Fesiduary. +f the nine Sharers mentioned in the Table of Sharers$ there are four who inherit sometimes as Sharer$ and sometimes as Fesiduaries. These are the !," father !1" daughter$ !>" full sister$ and !<" consanguine sister. (s to the last three$ it is to be observed that where any one of them would have$ if living$ inherited -as a Sharer$ her descendants would inherit as Sharers$ and if she would have inherited as a Fesiduary$ her descendants would inherit as Fesiduaries. 6. Dis$i)i! " P$0#$*% P$0#$*% ," If the deceased left only one heir$ the property would devolve upon that heir$ ecept
in the case of a wife. If the only heir be a wife$ the older view is that she is entitled to no more than her 3uranic 3uranic share !one-fourth" !one-fourth" and the residue residue !three-fourth !three-fourths" s" escheats escheats to the Bovernment.
The reason of the eception in the case of a wife is that she is not entitled to the surplus by Feturn$ not even if there be no other heir. If she is the sole heir$ she takes H$ and the surplus passes to the Imam$ now to the Bovernment of India =. (meer (li is 5 *aillie$ I$ 161.
of opinion that there being no machinery now to take charge of the Imam?s share$ the surplus should pass to the wife. 6 This opinion has been followed by the +udh 4ourt. 8 If the only heir is a sharer$ sharer$ a g., a husband$ he takes his 3uranic share !one-half" as a Sharer$ and the residue by Feturn. If the only heir be a Fesiduary$ e.g., a brother$ he takes the whole estate as a Fesiduary. (s to Sunni /aw$ see Section =<. !1" It the deceased left two or more heirs$ the first step in the distribution of the estate is to assign his or her share to the husband or wife. The net step is to ascertain which of the surviving relations relations are entitled to succeed$ and this is to be done with the help of the rules laid down in Section ::. The estate !minus the share of the husband or wife$ if any" is then to be divided among those entitled to succeed according to the rules of distribution applicable to the class to which they belong. 8. R#0$#s#!(i!% !,"The !,"The principle of representatio representation n has more than one meaning. meaning. It may be applied applied for the purpose of decidingA !a" 'hat persons are entitled to inherit 0 or !b" The uantum of the share of any given person on the footing that he is entitled to inherit.: !1" 'here 'here for purpose purpose !a" the rule rule of eclusion eclusion applies applies (i.e (i.e., ., the nearer in degree ecludes the more remote" it is true both of Sunnis and Shies that the principle of representation is not recogni&ed as ualifying the rule of eclusion. Thus$ if ( dies leaving him surviving a son and grandsons by a predeceased son$ the grandsons are ecluded from inheritance by their uncle. They do not take in their father?s stead though he would have been an heir had he survived his father. !>" *ut if both sons predeceased the propositus who died leaving three grandsons by one son and two by the other$ then all the grandsons are heirs. If the principle is applied$ the grandsons of one branch will have to divide into three what the grandsons of the other branch divide in half.
th 6 (meer (li$ = edn$ Kol. II. p.,1>. f.n. !>"
7 (bdu)amid ;han v. eare %ir&a 0 !,7>=" ,9 /uck. ==9 0 ,=> I 4 >87 $ !?>=" ( 9 8:
8 (ga Sheralli v *ai ;ulsum !,79:" >1 *om. =<9$ =<8$=<:$ ==:
In the the case case supp suppos osed ed$$ Sunn Sunnii /aw /aw woul would d not not proc procee eed d upon upon any any prin princi cipl plee of representation in calculating the grandsons? shares. shares . The grandsons would each take the the same same shar share$ e$ i.e., a share share ascertai ascertained ned withou withoutt recourse recourse to the represe representat ntation ion principle. The division among them would be per capita and not per stripes. )owever$ recognition of the principle of representation for the purpose of calculating shar shares es is not not alto altoge geth ther er absen absentt from from the the Sunn Sunnii /aw /aw. Fules Fules !1" !1" and and !>" !>" ther therein ein formulated disclose the influence of the principle in ascertaining the share of each heir in cases to which these rules are applicable. !<" 2or the limited purpose of calculating the share of each heirAas distinct from the purpose of ascertaining the heirsAthe Shia /aw accepts the principle of represe representa ntatio tion n as a cardin cardinal al princi principle ple throug throughou hout. t. (ccor (ccordin ding g to that that princi principle ple the descendants of a deceased son$ if they are heirs$ take the portion which he if living would have taken and in that sense represent the son. In the same limited sense$ the descendants of a deceased daughter represent the daughter0 if they inherit$ they take the portion which the daughter if living would have taken. The principle is applicable in the same way to the decendants of a deceased brother$ sister or aunt. !=" The principle of representation is not confined in its operation to descendants only. It applies in the ascending as well as in the descending line. Thus great-grandparents take the portion which which the grandparents$ if living$ would have have taken and the father?s uncles and aunts take the portion which the deceased?s uncles and aunts if living would have taken. 'hen the rule of eclusion applies@ The rule that the nearer in degree ecludes the more remote is a rule applied within the limits of each class of heirs. In Sunni /aw it is not without other limitations. *ut among Shias$ it applies within each section in all cases without distinction of class or se. 7. (s the classification of heirs is different in the two systems$ the application of the doctrine has different results as regards the persons entitled to inherit. The etent of this divergence is not the subject matter of the present section which is concerned only with the ascertainment of shares under the Shia law$ for which purposes the principle of representation is fundamental.
. Si$0i(' S++#ssi!% 9 *aillie II. 189
Succession among descendants in each of the three classes of heirs is per is per stirpes, and not per not per capita).10 This is repeating in other words$ the principle of representation eplained above. . S++#ssi! (!, /#s+#!/(!s% /#s+#!/(!s% The descendants of person$ who$ if living$ would have taken as a Sharer$ succeed as
Sharers. The descendants of a person$ who$ if living$ would have taken as Fesiduary$ succeed as Fesiduaries. This also follows necessarily$ from the principle of representation.
TABLE OF SHARERS SHIA LAW OF INHERITANCE T()'# T()'# " " s&($#$s
Sharers
N$(' S&($#
'hen only one heir is present )usband
H
'ife
,:
Eaughter
,1
2ather
,6
'hen two or more heirs are present
4onditions under which the normal share is inherited
($i(i! ($i(i! " s&($#s
In the presence of a child or child of a son how low so ever
,1 in absence of a child or child of a son how low so ever
,:
In the presence of a child or child of a son how low so ever
,< in absence of a child or child of a son how low so ever
1>
In the absence of a son.
In presence of a son she becomes a $#si/($*
In the presence
In absence of a
10 (ga Sheralli v *ai ;ulsum !,79:" >1 *om. =<9.
of a child or child of a son how low so ever
child or child of a son how low so ever the father inherits as a $#si/($*.
%other
,6
In the presence of a child or a child of a son how low so ever$ or two or more brothers or sisters$ or even one full$ consanguine or uterine brother and one such sister.
,> in the absence of a child or child of a son how low so ever$ and not more than one brother or sister !if any"0 but if the wife or husband and the father$ is also present$ then only,> of what remains after deducting the share of the spouse.
True grandfather
,6
In the presence of a child or child of a son how low so ever$ and in absence of the father or a nearer true grandfather.
In absence of a child or child of a son how low so ever$ the true grandfather inherits as a $#si/($* provided there is no father or nearer true grandfather.
True grandmother
,6
,6
( maternal true grandmother takes in absence of a mother$ and a nearer true grandmother and a paternal true grandmother
takes in absence of a mother$ father$ a nearer true grandmother and an intermediate true grandfather. SonLs daughter how low so ever
,1
1>
In absence of a son$ daughter$ a higher sonLs son$ higher sonLs daughter$ or an eual sonLs son.
In absence of a son$ higher sonLs son$ or an eual sonLs son and when there is only one daughter$ or higher sonLs s onLs daughter the daughter or higher sonLs s onLs daughter will take ,1 and the sonLs daughter how low so ever !whether one or more" will take ,6.
SonL SonLss daug daught hter er
,1 ,1
1> 1>
In abse absenc ncee of a son$ daughter$ or sonLs son
In absence of a son or sonLs son and in presence of a only one daughter the sonLs daughter !whether one or more" will take ,6. !In presence of a sonLs son$ she becomes a $#si/($*."
SonLs SonLs Eaughter
1>
In absence of a son$ daughter$ sonLs son$ sonLs
In absence of a son$ sonLs son or sonLs sonLs
daughter$ or a son and in sonLs sonLs son. presence of only daughter or sonLs daughter$ the sonLs sonLs daughter !whether one or more" will take ,6. !In presence of a sonLs sonLs son she becomes a $#si/($*." terine brother terine sister
,6
,>
In absence of a child$ child of a son how low so ever$ father or true grandfather.
2ull sister
,1
1>
In absence of a In presence of a child$ child of a full brother she son how low so becomes a ever$ father$ $#si/($*. true grandfather$ full brother.
4onsanguine sister
,1
1>
In absence of a child$ child of a son how low so ever$ father$ true grandfather$ full brother$ full sister$ or consanguine brother.
'hen there is only one full sister and she succeeds as a sharer$ the consanguine sister !whether one or more" will take ,6$ if she is not otherwise ecluded. !'ith the consanguine brother she becomes a $#si/($* ".
RULES OF SUCCESSION 1. R'#s " S++#ssi! (!, H#i$s " &# Fi$s C'(ss% The persons who are first entitled to succeed to the estate of a deceased Shia %uslim
are the heirs of the first class along with the husband or wife$ it any. The first class of heirs comprises parents$ children$ grandchildren$ and remoter lineal descendants of the deceased. The parents inherit together with children$ and$ failing children$ with grandc grandchil hildre dren$ n$ and$ and$ failing failing grandc grandchil hildre dren$ n$ with with remoter remoter lineal lineal descen descendan dants ts of the deceased$ the nearer ecluding the more remote. Succession in this class is governed by the following rules@ !," F(&#$ @ The father takes ,6 as a Sharer if there is a lineal descendant0 as a Fesiduary$ if there be no lineal descendant desce ndant !1" M&#$@ The mother is always a Sharer$ and her share is ,6 or ,> nder the unjab 4ustomary /aw the mother succeeds as a widow of her deceased husband and not as mother of her deceased son. son .,, !>" S!% The son always takes as a Fesiduary. !<" D(,&#$ @ The daughter inherits as a Sharer$ unless there is a son in which case she takes as a Fesiduary with him according to the rule of the double share to the male. !=" $(!/+&i'/$#!% +n failure of children$ the grandchildren stand in the place of their respective parents$ and they inherit according according to the principle of representatio representation n that is to say!i" the children of each son take the portion which their father$ if living$ would have taken as a Fesiduary$ and divide it among them according to the rule of the double share to the male 0 !ii" the children of each daughter take the portion which their mother$ if living$ would have taken either as a Sharer or as a Fesiduary and divide it among them also according to the rule of the double share to the male.
11 %st. Sahib *ibi v %uhammad ./.E. ,76, !'.." ,9>6 at ,9<,$ See also, Shiromani Burudwara
rabandak 4ommittee v )archaran Singh$ (.I.F. ,7>< /ah ,.
!6" R##$ 'i!#(' /#s+#!/(!s @ Succession among remoter lineal descendants is governed by the principle of representation$ representa tion$ that is to say$ s ay$ great-grandchildren take the portion which their respective parents$ if living$ would have taken$ and divide it among them according to the rule of the double share to the male$ and great-greatgrandchildren take the portion which their respective parents$ if living$ would have taken$ and divide it among them also according to the same rule. 2. R'#s " s++#ssi! (!, &#i$s " &# s#+!/ +'(ss% If there are no heirs heirs of the first first class$ class$ the estate (minus the share of the husband or
wife, if any" devolves upon the heirs of the second class. The second class of heirs comprises grandparents h.h.s. and brothers and sisters and their descendants h.l.s. The rules of succession among the heirs of this class are different according as the surviving relations are A !," Brandparents h.h.s.$ without brothers or sisters or their descendants0 !1" *rothe *rothers rs and sisters sisters or their their descen descendan dants$ ts$ withou withoutt grandp grandpare arents nts or remote remoter r ancestors0 !>" Brandparents h.h s.$ with brothers and sisters or their descendants
.
Brandparents h.h.s.$ without brothers or sisters or their descendants@ If there are no brothers or sisters$ or descendants of brothers or sisters$ the estat estatee (min (minus us the share of the husband or wife$ if any" is to be distributed among grandparents according to the following rules @A !," !," If the decea decease sed d left left all his four four gran grandp dpare arent ntss surviving. the paterna paternall grandparents take two-thirds$ and divide it between them according to the rule of the double share to the male$ and the maternal grandparents take ,>$ and divide it eually between them$ as shown below @A 1= C Fathers father ........ 1> 1> M<7M:,: C Father!s Father!s mother ....... ,> 1>M17M<,: ,> "Mothers father ........... ,1 ,>M,6 M>,: "Mothers mother.......... mother.......... ,1 ,>M,6M>,: !1" If there is only one grandparent on the paternal side$ he or she takes the entire 1>. Similarly$ if there is only one grandparent on the maternal side$ he or she takes the entire ,>$ as shown below@(a) Fathers father.............. father.............. 1> Mothers father............... father...............,> ,> !each taking ,6" Mothers mother............ mother............ 1#$ (each ta%ing 1#&) 1#&)
(') Fathers father.......... father.......... !1 >"... 1> 1>M<7 Mothers mother.......... mother.......... ( 1>"..... 1>"..... ,> 1> M17 Mothers mother ..............,> ..............,> M>7 (c) Fathers father............ father............ 1> Mothers mother.............. mother.............. ,> !>" If there are no grandparents$ the property will devolve according to the same rules upon remoter ancestors of the deceased$ the nearer ecluding the more remote. *rothers and sisters or their descendants$ without grandparents or remoter ancestors@ - *rot *rothe hers rs and and Siste Sisters$ rs$ with withou outt any any ance ancesto stors@ rs@ If the deceased left no ancestors$ but brothers and sisters of various kinds$ the the esta estate te (min (minus us the the shar sharee of the the husb husban and d or wife wife$$ if any any" will will be distributed among them according to the same rules as those in )anafi /aw. The The said rules are as follows@ !i" *rothers and sisters of the full blood eclude consanguine brothers and sisters. !ii" terine brothers and sisters are not ecluded by brothers or sisters either full or consanguine$ but they inherit with them$ their share being ,> and ,6 according to their number !iii" 2ull brothers take as Fesiduaries$ so do consanguine brothers$ !iv" 2ull sisters take as Sharers$ unless there be a full brother in which case they take as Fesiduaries with him according to the rule of the double share to the male. 4onsanguine sisters also take as Sharers$ unless there be a consanguine brother with them in which case they take as Fesiduaries with him according to the same rule. -
Eescendants of brothers and sisters$ without any ancestor@ If there are no brothers $ sisters of any kind$ and no ancestors$ but there are children of brothers and of sisters$ the estate ( minus minus the share of the husband or wife$ if any" will devolve upon them according to the principle of representation$ eplained above$ that is to sayA
!," The children of each full or consanguine brother will take the portion which their father$ if living$ would have taken as a Fesid Fesiduary uary and they will divide it among them according to the rule of the double share to the male 0 and the children of each full or consanguine sister will take the portion which their mother$ if living$ would have taken either as a Sharer or as a Fesiduary$ and they will divide it among the according also to the rule of the double shares to the male. !1" The children of each uterine brother will take the portion which their fathe fat her$ r$ if living , would have taken as a Sharer$ and they will divide in euall* among them0 and so will the children of each uterine sister. !>" If there are no children of brothers or sisters$ the estate will devolve upon the grandchildren of brothers and sisters according to the principle of represe rep resentat ntation ion that is to say say$$ the gra grand ndchil childre dren n of ful fulll or con consan sangui guine ne brothers and sisters take the portion which their respective parents$ if living$ would have taken and divide it among them according to the rule of the double share to the male$ and the grandchildren of uterine brothers and sisters take the portion which their respective parents$ if living$ would have taken$ and divide it eually among them without distinction of se . Brandparents h.h s.$ with brothers and sisters or their descendants@ !," If the deceased left grandparents and also brothers or sisters$ the estate (minus (minus the share of the husband or wife$ if any" is to be distributed among grandparents and brothers and sisters$ according to the following rules @A !a" ( paternal grandfather counts as a full or consanguine brother$ and a paternal grandmother counts as a full or consanguine sister. !b" !b" ( mate matern rnal al gran grandf dfat ather her coun counts ts as a uteri uterine ne brot brothe her$ r$ and and a mater materna nall grandmother counts as a uterine sister. !1" +n failure of grandparent grandparents$ s$ the remoter remoter ancestors of the deceased stand in the place of the grandparents through whom they are respectively connected with the deceased. +n failure of brothers or sisters$ their descendants stand in the place of their respective parents. The effect of the above rules is that when among heirs of the second class. one finds a single brother or sister$ full$ consanguine$ or uterine$ what one has to do is to substitute for grandparents so many brothers and sisters according to
the above rules$ and then assign shares to grandparents as if they were so many brothers and sisters.,1 3. O$/#$ " S++#ssi! (!, &#i$s " &# &i$/ +'(ss% !," If there are no heirs of the first or second class$ the estate (minus the share of the
husband or wife$ if any" devolves upon the heirs of the third class in the order given below @-aternal and maternal uncles and aunts of the deceased . Their descendants h.l.s.$ the nearer in degree ecluding more remote. aternal and maternal uncles and aunts of the parents. Their descendants h.l.s.$ the nearer in degree ecluding the more remote. aternal and maternal uncles and aunts of the grandparents. Their descendants h.l.s.$ the nearer in degree ecluding the more remote. Femoter uncles and aunts and their descendants in nice order. !1" +f the above groups each in turn must be ehausted before any member of the net group can succeed. #ception@ If the only claimants be the son of a full paternal uncle and a consanguine consanguine paternal uncle$ the former$ though he belongs$ to group (+), ecludes ecludes the latter that is nearer an belongs an belongs to group !," The Shias are the followers of (li. (li was a cousin of the rophet. )e was also the son-in-law of the rophet$ having been married to his favourite daughter 2atima. The Shias maintain that on the death of the rophet the 4aliphate !successor ship to the rophet" ought to have gone first to (li$ on the ground that he was the male hell he ll of the rophet. rophet. *ut the rophet had also left a consanguin consanguinee paternal paternal uncle !named (bbas"$ (bbas"$ and (li was but a cousin of the rophet$ being the son of a full paternal ncle (bu Talib Talib of the rophet. (li therefore could not be the nearest male heir$ unless the son of a full paternal uncle was entitled to succeed in preference to a consanguine uncle. To uphold$ however$ the claim of (li and that of the lineal descendants of the rophet through 2atima$ the &inias had to hold that the son of a full paternal uncle was entitled to secede in preference to a consanguine paternal uncle$ and this accounts for the eception mentioned above. ,> (nglo- %uhammadan /aw Section <6:. 12 *aillie. f ,$ 1:,$ >7,->71 0 'ilson$ (nglo13 *ailiie$ II. 1:=-:6$ >17->>1.
The heirs of the third class are all Fesiduaries. There is no sharer among them. ncles and (unts@ To distribute the estate among uncles and aunts proceed as follows@A (1) First, assign 1> of the estate to the paternal side$ that is$ to paternal uncles and aunts$ even if there be only one such$ and ,> to the maternal side$ that is$ to maternal uncles an aunts$ even if there by only one such. !1" et, !1" et, divide the portion assigned to the paternal side !that is 1> of the estate" among the paternal uncles an aunts eactly as if they were 'rothers and sisters of the deceased$ that is to sayA (i) assign to uterine paternal uncles and auntsA !a" if there be two or more of them$ ,> to be eually divided among them @ !b" if there be only one of them$ ,6 0 (ii) divide the remainder among full paternal uncles and aunts according to the rule of the double share to the male$ and$ failing them$ among consanguine paternal uncles and aunts according to the same rule. !>" /astl*. !>" /astl*. divide the portion assigned to the maternal side among the maternal uncles and aunts as follows @A (i) assign to uterine maternal uncles and auntsA (a) if there be two or more of them$ ,> to be eually divided among them 0 !6" if there be only one of them$ ,6 (ii) divide the remainder eually among full maternal uncles and aunts$ and failing them$ among consanguine maternal uncles and bunts. !<" If there be no uncle or aunt on the maternal side$ the paternal side takes the whole. Similarly$ if there be no uncle or aunt on the paternal side$ the maternal side takes the whole. The full maternal uncles and aunts take eually without distinction of se. This proposition$ however$ is not free from doubt. There is another possible view$ namely$ that full maternal uncles and aunts take eually only if there are no uterine maternal uncles and aunts and that if there be any such ?uncles or aunts$ they take according to the rule of the double share to the mals. The same remarks apply to consanguine maternal uncles and aunts. ,< Translation of the Shara*a-ul-slam$ Shara*a-ul-slam$ s. 1,<-1,70 (meer (li$ (li$ 14 *aillie$ II$ pp. 1:=$1:6$ and 3uerryLs Translation =th ed.$ Kol. II$ pp. ,,7-,19
Eescendants of ncles and (unts@ If there are no uncles or aunts of any kind$ children of deceased ncle and (unts take the portion of their respective parents according to the principle of representation described$ the children of each full or consanguine paternal uncle or aunt dividing their parents? share among them according to the rule of the double share to the male$ and the children of each of the remaining uncles and aunts$ that is of uterine paternal uncles and aunts$ and of maternal tildes an aunts$ whether full$ consanguine or uterine$ dividing their parents? share eually among them. If there are no children of uncles or aunts$ the grandchildr children en of uncles uncles and aunts take take the portio portion n of their their respecti respective ve parents parents according to the same principle. +ther )eirs of the Third class@ If there are no descendants of uncles or aunts$ the estate will devolve upon the other heirs of the third class in the order of succession among heirs of third class$ the distribution among higher uncles and aunts being governed by the principles for ncles and (unts$ and that among their descendants being governed by the principles of descendants of uncles and aunts.
DOCTRINES OF RETURN AND INCREASE 1. D+ D+$i $i!# !# " R# R#$! $!%% There There is a resid residue ue left left after after satis satisfy fyin ing g the the claim claimss of Share Sharers$ rs$ but ther theree are are no
Fesiduaries in the class which the sharers 'elong, the residue reverts$ subject to the three eceptions@ )usband and 'ife and Feturn@ 5either the husband nor the wife is entitled to the eturn the eturn if there is any other heir. If the deceased left a husband but no other heir$ the surplus will pass to the husband by eturn. by eturn. If the deceased left$ a wife$ but no other heir$ the older view was that the wife will take her share I$ and the surplus will escheat to the 4rown in other words$ that the surplus never reverts to a wife. *ut in 2'ul 3ami 4han v. 5eare Mir6a17 the +udh 4ourt followed the opinion of (meer
15 !,7>=" ,9 /uck. ==9$ ,=> I.4. >87$ !L>=" (.+. 8:.
(li,6 and held that the rule now in force is that the widow is entitled to take by return. In a case under the Shia law$ the doctrine of a was was not applied to a widow.,8 %other when ecluded from NFeturnO@ If the deceased left a mother$ a father$ and one daughter$ and alsoA !a" Two Two or more full or consanguine brothers$ or !b" +ne such brother and two such sisters$ or !c" 2our 2our such such sisters sisters$$ the brothers brothers and sisters$ sisters$ though though themselve themselvess eclue from inheritance as being heirs of the second class$ prevent the mother from participating in the eturn, and and the the surp surplu luss reve revert rtss to the the fath father er and and the the daughter in me proportion of their respective shares. This is the only case in which the mother is ecluded from the eturn. the eturn. terine brothers and sisters when ecluded from NFeturnO@ If there are uterine brothers or sisters$ and also full sisters$ the uterine brothers and sisters are not entitled to participate in the eturn, and the residue goes entirely to the full sisters. This rule does not apply to consanguine Sisters. 4onsang 4onsanguin uinee sisters sisters and uterine uterine brothe brothers rs and sisters sisters divide divide the eturn in proportion to their shares. There is a conflict of opinion whether a consanguine sister is entitled to the whole AFeturnG in the absence of a full sister. The author of the Sharaya-ul lslam is of opinion that she is not. The author of the ;ati is of opinion that she is.
2. D+$i!# " I!+$#(s#8% The Sunni doctrine of ncrease of ncrease is not recogni&ed In the Shia law. (ccording (ccording to the Shia law$ if the sum total of the shares eceeds unity$ the fraction in ecess of the
unity is deducted invariably from the share ofA !a" The daughter and daughters0 or !b" 2ull or consanguine sister or sisters.
16 %uhammadan /aw$ Kol. Ii$ =th #d.$ at p. ,1=<
17 5ur (li v %alka Sultana ./.E. ,76, !'." /ah. <>,
The reason of the rule laid down in this section is stated to be that since a full sister when co-eisting co-eisting with uterines$ uterines$ gets the full benefit of the -FeturnG$ it is but fair that when the sum total of the sharers sharer s eceeds unity$ she should bear the deficit. (ccording to the Sheraye-u-sam. a consanguine sister is not entitled to the whole-FeturnG when she co-eists with uterines. 3. Es+&#(% +n failure of all natural heirs$ the estate of a deceased Shia %uslim escheats to the
Bovernment.1
MISCELLANEOUS PRINCIPLES
1. E'/#s E'/ #s S!% S! % The eldest son$ if of sound mind$ is eclusively entitled to the wearing apparel of the
father$ and to his 3uran$ sword and ring$ provided the deceased has left property besides those articles. 2. C&i'/'#ss Wi/9% 4hildless widow takes no share in her husband?s lands$ but she is entitled to her one
fourth shares in the value of trees and buildings standing thereon as well as in his movable movable proper property ty includ including ing debts debts ue to him though they may be secured by a usufructuary mortgage or otherwise. In the following cases$ we find a mention of childless widow@
18 %ussammat ;hursaidi v Secretary of State !,716" = at. =>7$ 7<
%ir (lli v. Sajuda *egum ,7 0 mardare& (ll ;han v. 'ilayat (li ;han 19 0 %u&effar (ll v. arbati 1, 0 (ga %ohamed Jaffe$ Ja ffe$ v. ;oolsorn *eebee 11 0 Eurga Eas v. 5awab (ll ;han1> 0 Syed (li v. Syed %ohammad. 1< The epression -landsG in this section is not confined to agricultural land only$ it includes lands forming the site of buildings 1= *ut a childless widow in the absence of other heirs$ was held entitled to inherit in addition to her one-fourth all the remainder of her her husb husban and? d?ss prop proper erty ty$$ incl includ udin ing g a hous housee by virt virtue ue of the the doct doctri rine ne of -returnG. -returnG.16(ccording to Shia 2iah a childless widow of an G(sna (shariaG %uslim could not inherit any portion of the lands left behind by him .18 3. I''#,ii(# C&i'/% (n illegitimate child does not inherit at all$ not even from his mother or his relations$
nor do they inherit from him. 1:
CONCLUSION The paper begins with an introduction to the Shia class and eplains how Shias are different from the Sunnis.
19 !,:78" 1, %ad. 18
20 !,:76" ,7 (ll ,67
21 !,798" 17 (ll 6<9
22 !,:78" >= 4al. 7 4
23 !,716" <: (ll ==8
24 !,71:" 8 at <16
25 !,:78" 1= 4al. 7 4
26 (bdul )amid ;han v. eare %ir&a !,71=" ,9 /uck$ ==9 0 ,=> I 4 >87 0 !?>=" ( 9 8:.
27 %ohammad %unir v. (bu 5asar 0 /. E ,781 S 4 ><6
28 Saheb&edee *egum v. )immut *ahadur$ !,767" ,1 ' F =,1 S 4 on review
In the net part$ the basic principles of Shia /aws of Inheritance have been eplained. The paper also mentions the Fules of succession for different classes of heirs. The The Eoctr Eoctrin ines es of Fetu Feturn rn and and Incr Increa ease se have have been been elabo elaborat rated ed upon upon.. The The pape paper r concludes with some miscellaneous provisions of the Shia /aw of Inheritance.
BIBLIORAPH: %ulla$ rinciples of %ohomedan /aw$ ,8th #dn. $ ,781 *F KermaLs KermaLs 4ommentaries on %ahommedan /aw$ /aw ublishers vt. /td *% Bandhi$ rinciples of 2amily /aw$ Kolume II$ #astern *ook 4ompany$ = th #dn$ 19,1
