This post has been written by Anjali Krishnan, a 2nd year student, pursuing BBALLB from JEMTEC School of Law.
There exist quite few spaces where the laws of inheritance under Shia and Sunni law contemplating different legal traditions believe an equivalent sort of shares and suggest an equivalent kind of solutions to same practical problems.
During the course of elaboration, it points out various implications embraced upon by the appliance of Shia laws of inheritance to an equivalent situation. Laws of inheritance is detrimental with embracing several features as a matter of subject which may be enlisted as classes of legal heirs, inheritance of spouses, principle of representation, rule of Radd/return, and principle of Aul/increase.
Laws on Inheritance
- Classes of legal heirs
Shia law recognizes only two classes, i.e. the sharers and therefore the residuary. there’s no concept of distant kindred in Shia law. Shia law divides legal heirs into three basic classes These classes thereafter determine distribution of an estate among legal heirs and the way to offer preference to at least one legal heir over another as to the subject of priority for one over the other.
Appropriate appreciation of those classes helps one to know Shia law of inheritance as details of the system in one manner or another are linked thereto
These classes are the following:
(i) Parents, and
(ii) Children (male and female). children also include their descendants how low so ever regardless of the very fact whether or not they are descendants of male or female children.
(i) Grandparents, and
(ii) Brothers and sisters (full, consanguine, and uterine) and their descendants how low so ever regardless of their gender.
(i) Paternal uncles and aunts,
(ii) Maternal uncles and aunts, and
(iii) Their children regardless of their gender
Once the heirs are syb-classified into the abovesaid classes. There are two basic rules which are to be operationalised which may be classified as:
Firstly, as long as an heir’s powers are bestowed (or quite one) is present from the category 1, nobody is going to be entitled to inheritance from the category 2: similarly, if there’s an heir (or quite one) from the category 2, no will have anything from the category 3. These classes lay down a basic framework during which an estate of a Shia deceased is distributed except that deceased’s spouse is addressed differently.
Secondly, within an equivalent class subsequently, there’s no difference between male and female heirs from common ancestors except to the extent that a male heir will have double share than that of a female heir.
In Shia law, the grandmother terminology excludes the grandfather’s father in the applicability ambit as the rationale for this difference is that Shia law doesn’t differentiate between males and females in excluding the remoter relations: female relatives are as effective as of male relatives are in Sunni law.
According to Shia law, grandparents and brothers/sisters are all located within the same class; hence, none of them are going to be instrumental in excluding others.
- Inheritance of Spouses:
As it is clear from the above three-fold classification of heirs in Shia law, spouses aren’t placed in anyone of them. The above referred classes are jointly referred to as heirs by consanguinity in Shia law, while spouses are termed as heirs by affinity.
The heirs by consanguinity also are termed as heirs by Nasab, while the heirs by affinity are heirs by Sabab.
- Principle of Representation:
According to Shia law, the distribution is administered per stripes (as per stocks): which means that every son would have his individual share had he been alive which can be further divided to his legal heirs.31 So, the descendants of predeceased sons aren’t considered individually qualified legal heirs; they merely represent their parents. they’re going to only have what their parents would have inherited had they been alive. within the above example, two grandsons are linked to the deceased grandparent by an equivalent father, so their share are going to be half than that of the third grandson as he’s the sole heir of his father whom he represents.
The principle of representation is additionally applicable to heirs of other categories in Shia law, e.g. descendants of collaterals (brothers and sisters), descendants of uncles and aunts on the idea of an equivalent rules we’ve just elaborated regarding children of predeceased children of a prepositus.
* Rule of Radd/Return:
When a whole estate of a Shia Muslim consumed by his/her heirs and something is overlooked of it, the rule of Radd/return is applied. the appliance of Radd is more frequent in Shia law.
if the deceased may be a Shia Muslim, his daughter will take the whole estate the primary half as a sharer and another half after applying the Radd. the rationale for this type of distribution is that the daughter belongs to the category 1 and therefore the uncle is an heir located within the class 3. The uncle is merely entitled to inheritance if there’s no heir from the category 1 & 2.
- Principle of Aul/Increase:
The principle of Aul isn’t practiced as in customary practices or personal laws of inheritance in Shia law of inheritance as Shia scholars have expounded manyonerous rules to avoid its application.
It has been delivered to forth that with some abovesaid structural aspects of Shia laws w.r.t inheritance as. as an example, division of legal heirs into three classes, inheritance of spouses, principle of representation, rule of Radd/return, and principle of Aul/increase.
Moreover, Shia law erects its foundational rules in such purporting nature to exclude any possibility of Aul to require place. As these schemes of inheritance in shariah are inspired from the verses of the Quran, they’re expected to be similar in certain respects with the sunni laws of inheritance.