Shia Laws of Inheritance
Short Description
A brief Study on Shia Laws of Inheritance...
Description
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" ,< (. 1 *orn. =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 !. 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. =1 *om. = 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. !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"..... 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 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. !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
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