CHANAKYA NATIONAL LAW UNIVERSITY
Critical study between Hanafi & Shia Law as to Succession
SUBMITTED TO: - Mr. Shaiwal Satyarthy FACULTY: - Famili Law II
Made By: Nidhi Navneet nd
2
th
year (4 sem)
ROLL No.570 B.A.LL.B. (Hons)
Critical Study between Hanafi & Shia Law as to Succession
ACKNOWLEDGEMENT
I am feeling highly elated to t o work on the case law “Critical Study between Hanafi and Shia Law as to Succession” Succession ” under the guidance of the Faculty of Family law II, Mr. Shaiwal Satyarthy . I am very grateful to him for his exemplary
guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special s pecial thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who w ho provided me the potential for the rigorous research work.
At finally yet importantly importantl y I would like li ke to t o thank my parents for the financial support.
----------Thanking you Nidhi Navneet C.N.L.U.
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Critical Study between Hanafi & Shia Law as to Succession
CONTENTS RESEARCH METHODOLOGY ........................................................................................ 3 INTRODUCTION ............................................................................................................... 4 GENERAL PRINCIPLES OF SUCCESSION .................................................................... 6 Customary Principles of Succession ................................................................................ 6 Islamic Principles of Succession ...................................................................................... 6 The Hanafi Law: General Principles ........................................................................... 7 Ithana Asharia Law: General Principles ...................................................................... 8 HANAFI LAW OF SUCCESSION..................................................................................... 9 1.
Heirs under Hanafi (Sunni) Law ............................................................................... 9
2.
Distribution of Assets among the Sharers and Residuaries ....................................11
3.
Residuaries: Distribution of Assets .........................................................................13
4.
Distribution of Assets among the Distant Kindred .................................................14
5.
Doctrines of Aul (increases) and Radd (return) ......................................................15
SHIA LAW OF SUCCESSION ........................................................................................16 The Shia Scheme of Heirs ..............................................................................................16 Distribution of Assets ................................................................................................17 1. Distribution of Assets among Class I heirs: ...............................................................18 2. Distribution of Assets among Class II heirs:..............................................................19 3. Distribution of Assets among Class III Heirs: ...........................................................20 4. Rules of Distribution of Assets among the Uncles and Aunts: ..................................21 5. Distribution of Assets among the descendants of Uncles and Aunts: ........................21 6. Doctrines of Aul (increase) and Radd (return): ..........................................................21 DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS ................22 Sunni and Shia interpretation of Koran- distinction between : ......................................23 Points of difference between Sunni and Shia Law as to succession ..............................23 CONCLUSION..................................................................................................................25 BIBLIOGRAPHY..............................................................................................................26
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Critical Study between Hanafi & Shia Law as to Succession RESEARCH METHODOLOGY Research Methodology The project is basically based on the doctrinal method of research as no field work is done on this topic.
Aims & Objectives To do an in depth analysis of the relation between the two branches of Muslim Law on the law of succession of the property. The different rules regarding the heirs upon whom the property is about to devolve and the different rules regarding the distribution of property among those heirs in both Hanafi i.e., Sunni and Shia Law are to be ascertained through this project work.
Sources of Data The whole project is made with the use of secondary source. The following secondary sources of data have been used in the project1. Books 2. Websites
Mode of Citation The researcher has followed a uniform mode of citation throughout the course of this research paper.
Type of Study For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this topic, the researcher is providing the descriptions of the existing facts.
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Critical Study between Hanafi & Shia Law as to Succession INTRODUCTION The law of succession in India falls within the realm of personal law. Due to this, we have so many different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community to which the statute in question applies, for ex. the Hindu Succession Act, the Parsi Succession Act, etc. As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia law of succession and the Hanafi law of succession. Both these laws of succession form part of the common law of India and are recognized as having the force of law by virtue of the Sharia't Laws (Application) Act. The primary source of the Muslim law of succession flows from the Holy Koran. Apart from those issues which are directly addressed in the Holy Book, there are the Ijmas, the Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned. Also, it is pertinent to note here that laws of Succession under Muslim Law are said to be derived from the customs and usages prevalent among the tribes of Arabia before the revelations of the Quran, as supplemented and modified by the Koranic principles and the Hadis of the prophet. Contrary to popular belief, Koranic revelations are not the starting point of Muslim Law. It was in existence even prior to that, but it was systematized, concretised and modified by the revelations and the traditions of the prophet.1 The Muslim law of Succession is a superstructure constructed on the foundation of pre-Islamic customary law of succession. It is based on the patriarchal organisation of the family, in which the buttressed some near cognates side by side with agnates. In Islamic law distinction between the joint family property and the separate property has never existed, and in India Muslim law does not recognize the joint family property. The twin doctrines of the Mitakshara school of Hindu law, viz., son‘s birth right and survivorship (now abolished) are not recognised in muslim law. 2 Since under Muslim law all properties devolve by succession, the right of heir-apparent does not come into existence till the death of the ancestor. Succession opens only on the death of the ancestor, and then alone the property vests in, the heirs.
1
Dr. Poonam Pradhan Saxena, ‗Family Law Lectures II‘, (3 rd ed), Lexis Nexis Butterworths Wadhwa at page 505. 2 Abdul Rashid v. Sirajuddin, 1933 All 206.
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Critical Study between Hanafi & Shia Law as to Succession The Muslim law of Succession is a unique aspect of Muslim Law. It is a different system of law. Prophet Mohammed said: ―Learn the laws of succession and teach them to the people; for they are one-half of us eful knowledge‖.3 About the Muslim law of succession, Tayabji observed: ―the Muslim Law of succession has always been admired for its completeness as well as the success with which it has achieved the ambitious aim of providing not merely selection for the single individual or a homogenous group of individual, on whom the estate of deceased should devolve by universal succession, but for adjusting the competitive claim of all the nearest relations‖. 4 Under Hindu law, the doctrine of representation is utilized for two purposes: (i) for determining the heirs, and (ii) for determining the quantum of share of an heir or a group of heirs. The per stripes rule means that where there are branches, the division of property takes place according to the stock, i.e., at the, places where branches bifurcate. Under the Hanafi law, no aspect of the doctrine of representation is recognized, with the result that the son will take the entire property and no grandson will take any share. The result under the Shia law is also the same. But the Shia law recognized the doctrine of representation for the second purpose, i.e., for determining quantum of shares in certain cases. For instance, if P dies leaving behind three grandsons, A, B and C from a son S, and two grandsons, X and Y from a predeceased son S1, and a grandson Q from a predeceased son S2, then the distribution of assets will take place not in accordance with grandsons, but in accordance with sons. In this example, the share of S, S1 and S2 will come to1/3 each. S's 1/3 will go to A, B and C each taking 1/9; S1's 1/3 will go to X and Y each taking 1/6 and S2's 1/3 will go to Q. Under the Hanafi law each grandson will take per capita, i.e., A, B, C, X, Y and Q, each will take 1/6 share in the assets. The doctrine of representation and the striptal succession for the purpose of calculating the shares of certain heirs is the basic principle of the Shia law and is applied throughout. This is not confined to descendants but is also applied to ascendants. Thus, the descendants for the deceased son, deceased uncle, deceased aunt, deceased daughter, deceased brother, deceased sister, if they are heirs, are all covered by the doctrine of representation.
3 4
Sirajyyah (2 nd ed). 11. Tayabji (4 th ed), 800.
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Critical Study between Hanafi & Shia Law as to Succession GENERAL PRINCIPLES OF SUCCESSION The general principles of Succession can be broadly divided in Customary Principles which are age old principles based on customs followed by the Arabs even prior to the revelations of Quran, and in Islamic Principles which are the newer laws based on the Quranic principles. The general principles can again be divided into the general principles of the two branches of Muslim Law, i.e., Shia and Sunni Laws represented by the Ithna Asharai Sect of Shia and Hanafi Sect of Sunni laws.
Customary Principles of Succession In the pre-Islamic Arabia, the law of Succession was based on, what is called, comradeship-in-arms, and, on this basis, even the wife and the children were excluded from Succession. The four basic principles of the pre-Islamic law of succession were: firstly the nearest male agnates or agnates succeeded to the total exclusion of remoter agnate. Thus, if a Muslim died leaving' behind a son, and a son of a predeceased. Son, then the son inherited the entire property, and the grandson was totally excluded. Secondly, females were excluded from Succession; so were cognates. Thus, a daughter or a. sister or a daughter's son or sister's son could never succeed to the property. Thirdly, the descendants were preferred over ascendants and, ascendants over collaterals. For instance, in the presence of a son, father could not succeed. Similarly, in the presence of father, brother could not, inherit. Fourthly, where there were more than one male agnates of equal degree, all of them inherited the property and shared it equally, taking per capita. For example, if a person died leaving behind three brothers, all of them succeeded and each took one-third of the estate.
Islamic Principles of Succession The Prophet interposed the following few principles on the aforesaid principles of customary law of succession. Firstly, the husband and the wife, being equal, is entitled to inherit to each other. Secondly, some near females and cognates are also recognized and enumerated as heirs. Thirdly, the parents and certain other ascendants are made heirs even when there are descendants. Fourthly, the newly created heirs (those who were not entitled to inherit under customary law) are given specified shares. Fifthly, the newly created heirs inherit the specified shares along with customary heirs, and not to their exclusion. After allotting the specified share to the newly created heirs, who are
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Critical Study between Hanafi & Shia Law as to Succession called Sharers , whatever is left (residue) and the scheme is so laid down that something is usually left-goes to the customary heirs who are called Residuaries. The Quran did not create a new structure of law of succession, but merely amended and modified the customary law of succession so as to bring it in conformity with the Islamic philosophy which recognised those persons who were not heirs under the customary law as heirs (called sharers or the Koranic heirs) and specific shares have been allotted to them. For instance, if A, a Muslim, dies leaving behind a widow, W and two sons S and S1, then W will take 1/8 as a specified share and S and SI will take the residue, i.e., 7/8.
The Hanafi Law: General Principles The Hanafis interpret the principles of customary law and Islamic law in such a manner as to blend them together in a harmonious manner; the customary heirs are not deprived of their right of Succession in the estate of the deceased, but only a portion out of the estate is taken out and given to the heirs enumerated in the Koran. This means that the basic structure of customary succession, the rule of agnatic preference over cognates, is retained. The Koranic succession takes the agnatic principles further by recognizing the right of female agnates. Thus, a female agnate (as specified -in the Koran ) near to a male agnate (as specified under the customary law), is allowed to take a share, and thereby, doesn‘t deprive a male agnate of his share and he gets the residue. It should also be noticed that most of the newly created heirs are the near blood relations of the deceased who were ignored in the customary law. On examining the rights of the Koranic heirs vis-a-vis the customary heirs, two situations came in view: (i) the Koranic heir may be nearer to the customary heir. In such a case a specified portion of the estate is given to the Koranic heir at the first instance and then whatever is left to be given to the customary heir. For instance, when a deceased has left a daughter and a brother, the former will take 1/2 and the brother will take the residue which is 1/2. If the deceased had left two daughters and a brother, then, the daughters together will take 2/3 and the brother will take the residue which is 1/3. (ii) The Koranic heirs and the customary heirs may be equally near to the deceased. In such a case double portion is given to the customary heir. In this situation
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Critical Study between Hanafi & Shia Law as to Succession the Koranic heir who is a female of equal proximity with the customary heir, but was disqualified under the customary law been made to rank equally with the customary heirs in respect of the residue of the estate after the prior claim of the Koranic heirs are satisfied. As to the rights of heirs vis-a-vis each other, if the heirs of the same class differ from each other in their sex, they inherit equally and the principle of male taking twice the share of a female does not apply. For instance, if a Muslim dies leaving behind father and mother, then each take 1/6 of the estate. The modifications thus made by the Koran as interpreted by the Hanafis are restricted to agnates, with a few exceptions where under some cognates, such as uterine brother and uterine sister, are also included. The Hanafis have so interpreted the Koranic rules that the customary heir‘s right to Succession is not affected, though a slice of the estate is taken away for the Koranic heirs. Sometimes the customary heirs are also required to share the residuary estate with the Koranic heirs, and in that process, sometimes, no residue of the estate is left for them. Under the Hanafi law, the general rule of distribution of the estate is per capita and not per stripes.
Ithana Asharia Law: General Principles The basic differences between the Ithana Ashari law and the Hanafi law arise on account of the fact that the latter interpret the Koranic rules strictly and hold that the Koranic rules are nothing but transposition of certain rules on the customary law of succession, while the former interpret the Koranic rules so widely as if they lay down an independent scheme of succession. Thus, the Ithana Ashari interpretation of the Koranic rules does not recognize the prior rights of agnates over cognates or of males over females. With the exception of the rights of husband and wife, the Shia law lays down that the estate of the deceased devolves on blood relations equally, though among themselves they take per stripe: the females are allotted half the share allotted to the males in each grade. This also results in descendants, ascendants and collaterals inheriting side by side. The Shia law recognises the concept of Doctrine of Representation not for determination of heirs but for determination of shares of each heirs. When the sons of a predeceased son are about to inherit the property they will get as per capita from whatever share their father is to get if he been alive through representing their deceased father as one of the heir of property.
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Critical Study between Hanafi & Shia Law as to Succession HANAFI LAW OF SUCCESSION Under any law of intestate succession, two questions that arise are: (i) who are the heirs of the deceased, and (ii) to what share the heirs are entitled. Muslim lawgivers have gone into details in laying down the categories of the persons who are entitled to participate in the Succession, and the respective shares to which each category of heirs are entitled to receive.
1. Heirs under Hanafi (Sunni) Law Under Sunni law, the Heirs are divided into two broad categories, i.e., Related heirs and Unrelated heirs. Related heirs are further sub divided into three groups viz., Sharers, Residuaries and Distant Kindred, that comprise only blood relatives with the exception of surviving spouse of the deceased. The second category of unrelated heirs comprises three heirs viz., successor by contract (gets the property under a contract), acknowledged kinsmen (person of unknown descent, but the deceased makes an acknowledgement of kinship in his favour) and universal legate (recipient of the whole property of the deceased by will). The property in the first instance is to be distributed among those sharers who are entitled to get the property. Sharers are the heirs who were earlier excluded but were introduced as heirs by Koranic revelations. Their shares are fixed. Among the heirs, the Sharers are to be given their share first, and then the residue is to be distributed among the Residuaries. In the absence of the Sharers, the Residuaries take the entire estate. In the absence of both the Sharers and the Residuaries, the estate devolves on the Distant kindred. In their absence, the estate goes to the State (as an heir by Escheat). The rule has one exception, viz., in absence of the residuaries, if either of the spouses is present i.e., widow or the widower, then the spouse will take his/her fixed share as a sharer and the rest of the property would be taken by the Distant kindred. The Sharers are twelve in number. They may be stated thus:
Relations by affinity or marriage – includes wife and husband.
Relations by blood – a.
Female agnetic descendants – includes daughter, son‘s daughter, how low so ever.
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Critical Study between Hanafi & Shia Law as to Succession b.
Female agnetic collaterals – includes full sister and consanguine sister.
c.
Cognatic collaterals – includes uterine brothers and uterine sisters.
d.
Female ascendants – includes mother and true grandmother.
e.
Male ascendants – includes father and true grandfather.
Daughter, son‘s daughter, son‘s son‘s daughter, full sister and consanguine sister, although being among the sharers do not take their specified shares if a residuary equal rank co-exists, and thus they become residuaries and are known as Koranic Residuaries with another. The Residuaries are classified into: (i) descendants, [son and
son‘s son, how low so ever] (ii) Ascendants [father and true grandfather] and (iii) collaterals which are descendants of father [full brother, full sister, consanguine brother or sister, full brother‘s son or son‘s son, consanguine brother son or son‘s son] and that of a true grandfather [full or consanguine paternal uncles, full or consanguine paternal uncle‘s son or son‘s son]. 5 Distant kindred are all those blood relations of the deceased who have not
found a place either among the sharers or residuaries, there are: (a) female agnates, and (b) cognates, both males and females. For the purpose of distribution of assets among them, the better classification of distant kindred would be into: (i) descendents, (ii) ascendants, and (iii) collaterals. Under the category of descendants, daughter's children and their descendants how low so ever; son's daughter's children, how low so ever and their descendants without any limit are included. Under the category of Ascendants, false grandfather and grandmother how high so ever are to be included. The collaterals are further divided into descendants of parents [including full and consanguine brother's daughters and uterine brother's children; daughters of full brother's and consanguine brother‘s
sons,
and
children of sisters
(full
consanguine
and
uterine)]
and
descendants of immediate grandparents [including full and consanguine paternal uncle's daughters, daughters of their son‘s, uterine paternal uncles and their (of all of the above) children; paternal aunts (full, consanguine or uterine), Maternal uncle and Aunts and their children]. The number of collaterals is limitless, all the descendants of all the ascendants, without any limit as to degrees, are included.
5
Paras Diwan, ‗Muslim Law in India‘, Allahabad law agency, at page 223 -24.
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Critical Study between Hanafi & Shia Law as to Succession 2. Distribution of Assets among the Sharers and Residuaries The peculiarity of the Muslim law of Succession is that although the Sharers are class I heirs and the Residuaries are class II heirs, they together share the property. After shares have been allotted to sharers, the remaining property goes to the residuaries. Thus, if a Muslim dies leaving behind a mother, M, a son, S and a daughter's son, DS, then mother as sharer will take 1/6 and S will take the remaining 5/6 as residuary. DS will be totally excluded from the Succession, since he is a distant kindred. Among the heirs of a class which one of them will take the estate, and in what portion, depends upon the circumstances of each case. The general rule of preference is that a nearer heir excludes a remoter one. Thus, if a Muslim dies leaving a son and a grandson (son's son or a son from a predeceased son), then son alone will inherit, and the grandson will be excluded, though both are Residuaries. Among the residuaries the descendants are preferred over ascendants and collaterals, and ascendants are preferred over collaterals. When all the heirs claiming property are equally near, they share equally with this rider that a male heir (generally) takes double the portion of a female heir. In the Hanafi scheme of Succession, the following five heirs are always entitled, to a share in the estate; namely, husband, wife, child, father and mother. These heirs are called primary heirs. Next to them are "substitutes". There are the substitutes of the last three primary heirs only which are child of a son, how low so ever, true grandfather, and true grandmother.
Husband and Wife: If a Muslim male dies leaving behind a widow and children, then the widow takes 1/8, and the residue (i.e., 7/8) goes to children but in absence of children she takes 1/4. In case of more than one widow, each will get equal. Similarly, if a Muslim female dies leaving behind her husband and children, then the husband takes 3/4 as a sharer and the residue of 1/4 goes to the children and in absence of children, he gets ½. Thus, a Muslim female dies leaving behind her husband, H and her father F. H will take 1/2 as a sharer and F will take the remaining 1/2 as residuary.
Father and True Grandfather : The father is always an heir. Under no circumstances can he be excluded from Succession. The true grandfather, being a substitute; is always excluded by the father. The Kuran had devolved 1/6 share for father when there are children of deceased, and in absence of children or any agnatic descendants, the
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Critical Study between Hanafi & Shia Law as to Succession grandfather takes as a residuary. Where a Muslim dies leaving behind a mother and a father, the mother takes 1/3 as sharer, and the father takes 2/3 as residuary. Dual capacity i.e., as a sharer and a residuary, is sometimes conferred to father and he takes in the capacity of both. In this situation the position of the grandfather (in the absence of the father) will be the same, since he is a substitute for father. Illustration: P, a Muslim dies leaving behind father F, a grandfather FF, a mother, M, a grandmother MM, two daughters D and D1, and a daughter of a predeceased son, SD. FF will be excluded by F and MM will be excluded by M. F will take 1/6, since there are no children of the deceased. M will take 1/6, for the same reason. In the presence of daughters, SD will not take any share. The remaining 2/3 will go to D and D1, between them they will share equally, i.e., 1/3 each.
Mother and True Grandmother : Mother is never excluded from Succession. She takes 1/3 where there are no children, and 1/6 in presence of the children. The true grandmother is to be excluded completely in the presence of mother, nearer maternal or paternal grand mother, father and nearer true grandfather. Illustration: P dies leaving behind his mother M, sons son, S and a daughter D. M will take 1/6 as sharer, and the rest will go to D, S and S1 as residuaries, where D will have 1/6, S will have 2/6 and S1 will have 2/6. The mother takes 1/6 share if a Muslim dies leaving behind two sisters, or one brother and a sister (full, consanguine or uterine). Illustration: P dies leaving behind his mother, M, a sister PD and father F: Mother will take 1/3; D will be excluded because of the father as sisters don‘t take shares in property in presence of father. F will take the remaining 2/3.
Daughter and Son's Daughter how low so ever : The daughter takes a share of ½ of the property (for more than one daughter, each gets 2/3) in the estate of the deceased parent, when there is no son and otherwise becomes a residuary. The son's daughter having ½ of the property as share (2/3 for more than one daughter) is excluded completely in presence of a son, more than one daughter or higher son‘s son and the share reduces to 1/8 when there is only one daughter or one higher son‘s daughter. She becomes a residuary when there is an equal son‘s son. The son's daughters take per capita and not per stripes. Under the Hanafi law the son's daughter inherits in her own right, and not as representative of the son.
Sisters: The sister is a sharer where one takes 1/2 share and more than that take 2/3 each. But, she becomes a residuary in presence of a full brother and she is to be entirely
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Critical Study between Hanafi & Shia Law as to Succession excluded when there is a son, son‘s son, how low so ever, father or a t rue grandfather. When there are more than one full sister, consanguine sister is excluded but in case of only one sister, then consanguine sister takes 1/6. A consanguine sister having same shares is excluded in the presence of a son, son‘s son, how low so ever, father or a true grandfather, full brother and more than one full sister. Illustration : P dies leaving behind a husband, H and a sister FD. H will take ½ and FD will take ½. P dies leaving behind a full sister, FD, three consanguine sisters, CSl, CS2, CS3, one uterine sister US, one uterine brother UB. FD will take one-half, CS1, CS2, CS3 will take 1/6, each taking 1/18. UB and US together will take 1/3 each taking 1/6. In the case Newanesse v. Sheikh6, a widow died leaving behind a full sister and two daughters. The Supreme Court held that each daughter would take 1/3 and the remaining 1/3 will go to sister.
Uterine Brother and Uterine Sister : The uterine brother and uterine sister are not primary heirs. They inherit only in certain circumstances. (a) The uterine brother and uterine sister are excluded by a child, son of a child how low so ever, father, true grandfather. (b) A full brother or a full sister does not exclude a uterine brother or a uterine sister. Whenever the uterine brother and sister inherit they take equal share; the rule of male taking double portion does not apply to them. (d), Uterine brother and uterine sister take 1/6 share. Where there are more than one uterine brother or uterine sister they together take 1/3, and between them share it equally. Illustration: There is one interesting case, the Himariyya, where a Muslim female, died leaving behind her husband, H, mother, M, two uterine brothers, UB, UBI and one full brother, PS, H took 1/2, M took 1/6, UB and UBI took 1/3. But then the entire estate was exhausted, and nothing was left for FS, the full brother. In this case full brother would have taken as a residuary, had some residue been left.
3. Residuaries: Distribution
of Assets
The Residuaries inherit the property when the shares of sharers had been given to them. Only the Koranic residuaries can inherit in double capacity, i.e., either as sharers or as residuaries. The females enlisted in Koranic residuaries succeed as residuaries when they co-exist with male heirs of equal proximity. For instance, the daughter inherits as a
6
AIR 1996 SC 702.
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Critical Study between Hanafi & Shia Law as to Succession sharer when there is no son. When there is a son, she inherits as a residuary. Except the son's daughter how low so ever, no one of these females can, as residuary, succeed with a male of lower grade. For example, when a Muslim dies leaving behind two daughters, D and D1, a son's son's son, SSS, son's daughter, SO, and son's son's daughter SSD, then D and D1 together will take 2/3 as sharers, SSS 1/6 as residuary, SD 1/12 as residuary, SSO 1/12 as Residuary. Further illustrations are: (i) P dies leaving behind daughter, D, son's daughter, SD, son's son's daughter, SSD, and son's son's son, SSS. D will take 1/2 as sharer, SD will take 1/6 as sharer, SSS and SSD will take the remaining as residuaries, SSD taking 1/9 and SSS taking 2/9. (ii) P, a Muslim, dies leaving behind two daughters, D and D1, a son's daughter, SD, and son's son's son, SSS. D and D1 together will take 2/3, as sharer, and the remaining will go to SD, SSS as residuaries, SSS taking 2/3 and SD taking 1/9 (in accordance with the rule that male takes double portion).
4. Distribution of Assets among the Distant Kindred The distant kindred succeed to the estate of the deceased only in the absence of the sharers and residuaries with one exception, viz., when husband or wife is the sole heir, then the distant kindred take the residue. Thus, if a Muslim dies leaving behind a widow, W, and full sister's son FSS (who is distant kindred), then W will take 1/4 as sharer, and the residue of the estate, namely, the 3/4 will go to FSS. Among the distant kindred, the rules of distribution of assets and of exclusion may be stated thus: (1) When among the claimants there are descendants, ascendants and collaterals, the descendant distant kindreds are preferred over ascendant distant kindred and collateral distant kindreds. When the claimant distant kindreds are ascendants and collaterals, then ascendant are preferred. (2) When all claimants are descendants, (a) of different degrees, then the one who has fewer degrees of descent will be preferred. (b) If all of them have equal degrees of descent, then the children of sharers and residuaries are preferred over the children of distant kindred. (c) If the claimants have the degrees of descent and the sexes of intermediate ancestors do not differ, then all the claimants take per capita, male taking double portion. Thus, if P dies leaving behind daughter's daughter, DD, and daughter's
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Critical Study between Hanafi & Shia Law as to Succession son, DS, DD will take 1/3 and DS will take 2/3. But, (e) if the intermediate ancestors differ in their sexes, then (i) where sexes differ, the shares were to be assigned at that stage in case of two claimants, assigning double portion to male and one portion to female ancestor. (ii) Where there are three or more claimants and each is claiming through a different line of ancestors, then shares were to be allotted where sexes starts differing. Illustration: P dies leaving behind a daughter's son's daughter, DSD, a daughter's daughter's daughter, DDD, and a daughter's daughter's son, DDS, Since the sex of the ancestors differ at the second line of descent, the shares are to be allotted here, male getting double portion and female getting one portion. DS will get 1/2, DD will get 1/4 and DD1 will get 1/4. Since there are two females, their shares will be pooled together which will come to 1/2. Since in the line DS there is only one heir, his 1/2 will go to DSD. DD and DDI'S 1/2 will go to DDS and DDD, the male taking the double portion. This will mean that DDS will take 1/3 and DDD will t ake 1/6. (3) Where there are two or more claimants claiming through the same intermediate ancestor, the rule is to count each of such ancestors if male, as many males as there are claimants claiming through him and, .if female, as many females as there are claimants claiming through her, irrespective of the sexes of the claimants. When an intestate leaves descendants in the fourth or remoter generations, this process is to be applied as often as there may be occasions to group of the sexes of intermediate ancestors.
5. Doctrines of
Aul (increases)
and Radd (return)
In a system of law which assigns fixed shares to heirs, two anomalous situations are likely to arise: The sum of shares allotted to various heirs according to their entitlement, (i) may be in access of the unity, or (ii) may be less than the unity. The former situation is solved by the application of the doctrine of
Aul or
increase, and the latter by the
application of the doctrine of Radd or return.
Doctrine of Aul or increase – When the sum total of the shares allotted to various heirs in accordance with their entitlement exceeds the unity, then the doctrine of aul lays down that the share of each heir should be proportionately reduced. This is done by reducing the fractional shares to be common denominator. Since this is done by increasing the denominator, the doctrine has been given the name of increase (aul) though in fact the
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Critical Study between Hanafi & Shia Law as to Succession shares are proportionately reduced. Illustration: P dies leaving behind her Husband, H, two full sisters, FD and FDl, and Mother M, they will be allotted the shares as under: H ½ or 3/6, FD & FD1 - 2/3 or 4/6 and M - l/6. The proportionate reduction of shares is achieved by increasing the denominator from 6 to 8. Thus, the shares of the respective shares will be : H will take 3/8, FD & FD1 4/8 and M 1/8.
Doctrine of Radd or return: When there is surplus left after allotting the shares to the sharers in accordance with their entitlement, and there are no residuaries to take the surplus, then the doctrine of return lays down that the surplus is to be distributed among the sharers in proportion to their respective shares. Under Muslim law of modern India, the doctrine of return lays down: (i) the surplus is distributed among the sharers in proportion to their shares. (ii) But the husband or the wife is not entitled to return, so long as there is a sharer or distant kindred alive and if there is no sharer or a distant kindred, then the surplus returns to the wife or husband. Illustration: P dies leaving behind his mother M, and his daughter D. M takes 1/6 and D takes 1/2.There remains a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M. M's share will be increased to 1/4 and D's share to 3/4. This is done by reducing the common denominator.
SHIA LAW OF SUCCESSION The shia law of Succession differs fundamentally from the sunni law. The Hanafis considered the super-imposition of the Koranic Heirs on the agnatic system of succession of the customary law as supplementary to, and in modification of, the customary law of succession or as Fyzee puts it, as corrective of many social and economic inequalities that prevailed then,7 and, therefore, held the view that two are to be read read together in one harmonious scheme. The Ithna Asharis, on the other hand, considered the Koranic scheme of succession as anew scheme and in suppression of the customary law of succession.
The Shia Scheme of Heirs The shias base the right of succession to the propertyon two principles: (a) Nasab, or blood relationship, and (b) Sadab, or special cause. The Nasab is sub-divided into: (i) Dhu Fard (the Koranic Heirs or Sharers), and (ii) dhu qarabat, or blood relations. The Sadab is also sub-divided into two: (i) zawjiyyat or status of a spouse, and (ii) wala, 7
Fyzee, 381.
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Critical Study between Hanafi & Shia Law as to Succession special legal relationship. Under wala comes right on emancipation, onligation for delicts committed by the deceased, and wala of immanate. Of these first two have become obsolete in India and the third has been replaced by the la w of escheat.
Classification of heirs: In modern India, the heirs of a Shia muslim fall under the following classes: I. heirs by marriage. Under this category come only to persons husband and wife. II. heirs by consanguinity. These are further sub-divided into the followinga. (i). Parents, (ii). Children and other lineal descendants, how low so ever. b. (i). Grandparents (both true and false) how high so ever. (ii) Brothers and sisters and their descendants , how low so ever. c. (i). Paternal uncles and aunts of the deceased, and of parents nd grandparents how high so ever and their descendants, how low so ever. III. State by Escheat. From the point of view of distribution of assets, the Shia law divides the heirs into two categories: (i) the sharers and the descendants of the sharers, how low soever; (ii) the residuaries and the descendants of the residuaries how low so ever. The Shia law does not recognises distant kindred as a separate class of heirs. All those blood relations who are not sharers are the residuaries.
Distribution of Assets It should be noted that under the Shia law all sharers are not Class I heirs. They are called sharers, since the Koran allots them a specified share. All sharers do not have priority over the residuaries. It should also be noted that the husband and wife always inherit, and inherit with all classes of heirs. Besides the husband/wife, the heirs for the purpose of determining priority, are placed into three classes:
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Critical Study between Hanafi & Shia Law as to Succession I. (i). Parents, and (ii) Children and other lineal descendants how low so ever: among them the nearer excludes the remoter. Thus, son and daughter excludes son‘s and daughter‘s children. II. (i) Grandparents (both true and false) how high so ever, among them the nearer excludes remoter, and (ii) Brothers and sisters (among them brothers and sisters of full blood are preferred over consanguine ones), and failing them, their descendants , how low so ever, nearer excluding the remoter. III. (i). Paternal uncles and aunts of the deceased, and of his or her parents and grandparents how high so ever and their descendants, how low so ever, and (ii) Maternal Uncles and Aunts of the deceased, and his or her parents and grandparents how high so ever and their descendants, how low so ever.
1. Distribution of Assets among Class I heirs: In this class are two groups of heirs, parents and children and their lineal descendants. Here all the shares are defined by the Koran. Husband – husband takes ½ of the property and it reduces to ¼ where there is a lineal
descendant. Wife – wife takes ¼ of the property but it reduces to 1/8 where there are lineal
descendant. Father – father takes 1/6 share, if there is a lineal descendant. If there is none, he takes as
a residuary. Mother – mother takes 1/6 when there is: (a) lineal descendant, or (b) two or more full or
consanguine brothers, or (c) one such brother and two such sisters, or (d) four such sisters with the father. If there are no such relations she takes 1/3. Daughter – when there is no son, she takes 1/2; when there are two or more they together
take 2/3, provided there is no son. If there is a son, then she takes as residuary along with him. Son - Son is always a residuary. Grandchildren – in the absence of children, grandchildren tke the share which the son or
daughter would have taken had he or she been alive. This means: (i) children of each son
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Critical Study between Hanafi & Shia Law as to Succession will take the share which the son would have taken as residuary; the children among themselves will divide it on the basis of the rule of double portion to the male child and one portion to the female child; (ii) children of each daughter will take the same share which the daughter would have taken if living, either as a share or as a residuary, and will divide it among themselves on the basis of the rule of double portion for a male and one portion for a female. The distribution of assets among the Class I heirs may be explained by a few examples: P dies leaving behind her husband, H, father F, and mother, M. H will take ½ as sharer, M will take /3 as sharer F will take remaining 1/6 as residuary. Another example, P dies leaving behind two daughters D and D1, father F and Mother M. F will take 1/6 as sharer (because of daughters), M will take 1/6 as share and D & D1 will take 2/3 as sharer.
2. Distribution of Assets among Class II heirs: In the absence of class I heirs, the property devolves on class II heirs along with husband or wife, if any. Among them, the following three situations are likely to arise: 1. The claimants may be only grandparents, how high so ever and no other relative is there. In such a situation, when all the four grandparents are there, the paternal grandparents will take 2/3 and maternal grandparents will take 1/3. The paternal grandparents divide the 2/3 between themselves on the basis of double portion to males, but maternal grandparents divide it equally between themselves. If there is only one grandparent either at paternal side or maternal side, he or she will take the entire 2/3 or 1/3 of property. If there are two grandparents on one side and one at another side, they will take their respective shares. Illustration: P dies leaving behind, a paternal grandfather FF, paternal grandmother FM
and a paternal grandmother MM. The respective shares of M and F will be 1/3 and 2/3. MM will take this 2/3, since she is the only heir. But F‘s 5/8 will go to FM and FF, FM taking 2/9 and FF taking 4/9. 2. The claimants may be only brothers and sisters, i.e., there may not be any grandparents. In such a situation, the rules of distribution are: (a) One uterine brother or sister takes 1/6 share, while two or more take 1/3 share. (b) In the absence of full brother, the full sister takes as sharer, when there is only one, she takes ½ and when there are two
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Critical Study between Hanafi & Shia Law as to Succession or more then take 2/3 each. When there is a full brother, she takes as residuary along with him. (c) in the absence of the consanguine brother, the consanguine sister takes as sharer, taking ½ share when one, and 2/3 when two or more, if there is a consanguine sister takes as sharer, taking ½ share when one, and 2/3 when two or more, if there is a consanguine brother, then she takes as residuary along with him. Illustration: P fies leaving behind a uterine brother, MS, a consanguine brother, FS, a
consanguine sister, FD and a widow, W. W will take ¼ as a sharer, MS will take 1/6 as sharer, the residue will go to FD and FS, FD taking 7/36 and FS taking 7/16. 3. Where there are grandparents with brothers and sisters or their descendants, after taking out the shares of husband or wife, if any, the distribution of property will take place as per these rules: (a) A maternal grandfather or grandmother counts for uterine brother or sister respectively. (b) A paternal grandfather or grandmother counts for full or consanguine brother or sister respectively. (c) if there are no grandparents, remoter grandparents would take their place. (d) if there are no brother or sister, their descendants would take their place. Illustration: P dies leaving behind a paternal grandfather, FF, and two full sisters, FD
and FD1. FF will be equal to a full brother. In view of this, FF will take 2/3 and FD and FD1 together will take 1/3.
3. Distribution of Assets among Class III Heirs: In the absence of heirs of Class I and Class II, the assets of the deceased, after taking out the share of Husband or Wife, will devolve on Class III. The Class III heirs may be divided into the following categories in accordance with their priority: (i) Paternal and maternal uncles and aunts of the deceased, (ii) The descendants of (i) how low so ever, the nearer in degree excluding the remoter, (iii) Paternal and maternal uncles and aunts of the parents, (iv) The descendants of (iii) how low so ever, the nearer in degree excluding the remoter, (v) Paternal and maternal uncles and aunts of the grandparents, (vi) The descendants of (iii) how low so ever, the nearer in degree excluding the remoter, (vii) Remoter uncles and aunts and their descendants i n like order.
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Critical Study between Hanafi & Shia Law as to Succession To the above order of succession one exception is recognized, viz., when only claimants are full paternal uncle‘s son and a consanguine paternal uncle, the former excludes latter.
4. Rules of Distribution of Assets among the Uncles and Aunts: The rules are: (i) if there is a husband or wife, then he or she is to be assigned the Koranic share. (ii) where there co-exist paternal uncles and aunts as well as maternal uncles and aunts, then paternal side is to be assigned 2/3 share and maternal side is to be assigned 1/3 irrespective of the number of uncles and aunts. (iii) the portion falling on the paternal side is to be divided among aunts and uncles if they are brothers and sisters of the deceased. (iv) the 1/3 portion falling to the share of maternal uncles and aunts will be divided among them. (v) in the absence of one side, the other would take the whole property.
5. Distribution of Assets among the descendants of Uncles and Aunts: In the absence of uncles and aunts, the property devolves on their descendants. In the distribution of assets among the descendants of aunts and uncles, the doctrine of representation applies. The rule of preference among them is that nearer excludes the remoter. For example: P dies leaving behind a full paternal au nt‘s daughter, FDD and a uterine maternal uncle‘s son and daughter, MSS and MSD. In this case the distribution of assets will first take place at the roots. MS taking 1/6 as sharer and FD taking remaining 5/6 as residuary. MS‘s 1/6 will go to MSS and MSD, between them they will share it equally. FD‘s 5/6 will go to his daughter FDD.
6. Doctrines of Aul (increase) and Radd (return): The same anomalous situations relating to distribution of assets among the heirs are likely to arise under the Shia law as they are likely to arise under Sunni law, i.e., the sum total of shares being less than the unity or more than the unity, the problem of rateable distribution or the distribution of balance among the heirs arises. The Shias, like the Sunnis solve the problem of excess by the applic ation of the Doctrine of Radd, though in the actual application of the doctrine there a re some differences. The Shias do not recognize the Doctrine of Aul or Increase. In case the sum total of shares exceed the unity, as per their rule, the fraction in access is to be deducted from the shares of daughters and full or consanguine sisters. The reason given behind this
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Critical Study between Hanafi & Shia Law as to Succession is that by doctrine of return, when the total shares are less than unity, the entire residue goes to them, so when the shares exceeds, they should suffer the loss . Doctrine of Return – if after the distribution of assets among the shares, some residue is
left and there are no residuaries to take it, then the balance is distributed among the shares in proportion to their shares. But, the doctrine of return uner the Shia law is subject to the following exceptions: (i) if there are other heirs, howsoever remote, the husband or the wife is not entitled to the return. (ii) if an intestate Shia dies leaving behind : (a) mother, father and one daughter, as well as (b) two or more full or consanguine brothers, or one such brother and two such sisters or four sisters, then the mother is not entitled to a share in the return. (iii) in case a Shia dies leaving behind uterine brothers and sisters as well as full sisters, then the uterine brothers and sisters are not entitled to the return. But this exception does not apply if the uterine brothers and sisters co-exist with consanguine brothrs and sisters. In such a case all of them share proportionately in the balance. 8
DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS Laws relating to Shias and Sunnis with respect to Succession are different in many respects. This difference is primarily due to the interpretation of the Quranic provisions and their incorporation in the already existing system. It must be remembered that the Quranic revelations did not abrogate the then existing customs and usages, which provided the basic framework for laws of Success ion. Quran provided their modifications by adding to and amending then existing rules. The sunnis kept the old framework intact, such as preference to agnates over cognates, and superimposed the quranic principles on this old setup. The Shias on the other hand, blended the old rules and the newly laid down rules. They revised the law prevalent under the Arabian customs and usages, in the light of the newly laid down principles and came out with a scheme widely different from the one propounded by the Sunnis. 8
There is a conflict of opinion among the Shia authorities in this regard. The Sharya-ul-Islam holds that consanguine sister is not entitled to return, while Kafi is o f the opinion that she is.
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Critical Study between Hanafi & Shia Law as to Succession Sunni and Shia interpretation of Koran- distinction between : The greater part of Mohammedan Law of Succession is founded upon the Koran. Koran9 did not sweep away the existing laws of successions, but made a great number of amendments based on a few common principles. These amendments have been differently interpreted by the Sunnis and the Shias. The leading differences in their interpretations may be stated as follows:
The sunnis to some extent allow the principles of the pre-Islamic custom to stand, and they add or alter those rules in the specific manner mentioned in the Koran and by the Prophet.
The Shias deduce certain principles which they consider to underlie the amendments mentioned in the Koran, and fuse these principles with the principles underlying the pre-existing customary law, and thus raise up a completely altered set of rules.
Points of difference between Sunni and Shia Law as to succession 1. According to sunni law, there are three classes of heirs namely sharers, residuaries and distant kindred, whereas under Shia law, there are only two classes of heirs namely sharers and residuaries, i.e., heirs by consanguinity and heirs by marriage. 2. The sharers, according to Sunni law, exclude residuaries and residuaries exclude the distant kindred. Under Shia law, the sharers and the residuaries are all jointly divided into three classes; the first excluding the second from Succession and the second excluding the third. 3. The sunni law doesnot recognise any Right of Primogeniture, the shia law recognises it to some extent. 4. Sunni law restricts recognition of the Doctrine of Representation to a few limited cases; in Shia Law it is the cardinal principle of succession. 5. Without exception, homicide is a bar to succession in Sunni Law, but under Shia Lawit it is a bar only if it is intentional.
9
Murtaza Hussain Khan v. Mohammad Ali Khan, ILR 33 All 532 ( PC).
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Critical Study between Hanafi & Shia Law as to Succession 6. Under the Sunni Law both husband and wife can take by return, i.e., where there is residue. Under the Shia Law only the husband is entitled to return and not the wife. 7. Under the Sunni Law, the doctrine of increase extends to all sharers alike, but it appliesonly to the daughter and sister among the Shias. The Sunni Law does not interfere with the koranic sharers except those, on the authority of the Ijmaa and the Kiyas, they introduce into the list of shares. But the Shias kept the list of the koranic heirs intact and re-arranged is in a group divided on the basis of the propinquinty. The doctrine of representation is recognised by the Shias but not the Sunnis. According to the Sunni law, all the Sharers except the husband or wife share in the return and the husband or wife gets the residue on the total failure of other heirs. But according to the Shias, only the husband is entitled to return. Under the Sunni law, there is no distinction between movable and immovable property left by the deceased. But according to Shia Law, in case a childless widow, there is distinction between movable and immovable property. A childless widow is not permitted to take any share in her husband‘s immovable property. According to the Sunni law, if the deceased leaves behind a single daughter and father, the residue goes to the father; but among the Shias, the residue is divided amongst sharers by return. Under the Sunni law a person can be excluded from inheriting if he has caused murder of the person from whom, he is to inherit, either intentionally or unintentionally. But according to the Shia law, such person will be disqualified only if he has intentionally caused the murder, so under the Shia Law there is distinction between intentional and unintentional homicide so far as the exclusion of a person from Succession is concerned. The classification of heirs under the Sunni law seems unnatural and artificial. But the classification under the Shia law is more natural.
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Critical Study between Hanafi & Shia Law as to Succession Under Shia law the only restriction upon testamentary power is the one-third rule, but Sunni law goes further and does not allow any bequest in favour of a legal heir. Under both systems, however, bequests that infringe these rules are not necessarily void and ineffective; the testator has acted beyond his powers, but the bequest may be ratified by his legal heirs. Further protection is afforded to the rights of the legal heirs by the doctrine of death sickness. Any gifts made by a dying person in contemplation of his death are subject to precisely the same limitations as bequests, and, if they exceed these limits, will be effective only with the consent of the legal heirs.
CONCLUSION It can finally be concluded after taking in view the laws of succession in the two branches of Muslim Law are different in many aspects. Although both Shia law and Sunni law provides same kinds of rules for succession of property by the heirs but when these rules are delat in detail, various differences are there. There is a fundamental divergence between the Sunni and the Shia schemes of succession. Sunni law is essentially a system of inheritance by male agnate relatives or ʿa ṣabah — i.e., relatives who, if they are more than one degree removed from the deceased, trace their connection with him through male links. This agnatic system is mitigated by allowing the surviving spouse and a limited number of females and nonagnates —the daughter; son‘s daughter; mother; grandmother; germane, consanguine, and uterine sisters; and uterine brother — to inherit a fixed fractional portion of the estate in suitable circumstances. But the females among these relatives only take half the share of the male relative of the same class, degree, and blood tie, and none of them excludes from inheritance any male agnate, however remote. No other female or non-agnatic relative has any right of inheritance in the presence of a male agnate. Shia law rejects the criterion of the agnatic tie and regards both the maternal and paternal connections as equally strong grounds of inheritance. In the Shia system the surviving spouse always inherits a fixed portion, as in Sunni law, but all other relatives, including females and non-agnates, are divided into three classes: (1) parents and lineal descendants; (2) grandparents, brothers and sisters, and their issue; (3) uncles and aunts
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Critical Study between Hanafi & Shia Law as to Succession and their issue. Any relative of class one excludes any relative of class two, who in turn excludes any relative of class three. Within each class the nearer in degree excludes the more remote, and the full blood excludes the half blood. While, therefore, a male relative normally takes double the share of the corresponding female relative, females and nonagnates are much more favourably treated than they are in Sunni law.
BIBLIOGRAPHY Referred Books : Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3 rd Edition, 2011, lexis Nexis Butterworths Wadhwa. Diwan, Paras, Muslim Law in Modern India, 9 th edition, 2004, Allahabad Law Agency, law Publishers. Mulla, I., Mulla on Mohammedan Law, 1 st edition, 2007, Dwivedi Law Agency, Allahabad. Ali, Ameer, commentaries on Mohammedan Law, Revised Enlarged 5 th edition, 2007, Hind Publishing House.
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