(A) The Principal Classes:
The following three classes of heirs may be termed as principal classes of legal heirs. The heirs included in any of the following classes are related to the propositus by blood except the husband and widow who are related through marriage.
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(1) Sharers or Quranic Heirs:
Sharers are those heirs who are entitled to get a prescribed share from the heritable property. The Sharers and their respective shares in the property of a deceased are given in Quran. The Sharers are, therefore, also called as Quranic heirs.
In the distribution of property, the Sharers get preference over the other class of heirs, therefore, first of all the respective share is allotted to each Sharer. It may be noted that Sharers are those heirs whose respective shares are given in Quran; therefore, their shares cannot be altered by any human effort.
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(2) Residuaries or Agnatic Heirs:
Residuaries are those heirs who inherit only the residue of the property after allotment of respective shares to the Sharers. Obviously, the Residuaries have no specific share of their own. After giving the property to the Sharers in their fixed shares, if there remains some property that ‘remaining property’ (residue) is available to the Residuaries.
The residue may differ from case to case. If there are no Sharers, the whole is inherited by the Residuaries. Residuary heirs are also termed as Agnatic heirs because they inherit through male relations.
(3) Distant Kindred or Uterine Heirs:
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All those persons who are related to propositus through blood but could not be included as heirs in the class of Sharers or of Residuaries, are called distant kindred. If a propositus has neither Sharers nor Residuaries, the properties are inherited by his Distant Kindred. Distant Kindreds cannot inherit in presence of any Sharer or Residuary. The heirs included in this class are also termed as uterine heirs.
(B) Subsidiary Classes:
Besides the above-mentioned three classes of heirs, there are four more categories of legal heirs. The heirs included in any of the following classes are called subsidiary heirs and inherit only in exceptional cases;
(1) Successor by contract
(2) Acknowledged kinsman
(3) Universal legatee, and
(4) The State (through the process of escheat).
Scheme of Distribution:
In the distribution of property among legal heirs of a Sunni propositus, the following scheme is followed. First of all, it is ascertained as to who are the Sharers (Quranic heirs) of the deceased. After ascertaining the Sharers, their respective shares, which are already fixed for them, is allotted to each of them. If the whole property exhausts after distribution of the shares among each of them, the process of distribution does not proceed further.
But, if there still remains some property, then the second step is to distribute the “remaining property” (residue) among the Residuaries who constitute Class II of legal heirs. However, where a propositus has no Sharers at all, the whole property is inherited directly by the Residuaries. If the propositus has neither any Sharer’ nor any Residuary then, in the third instance, the property is distributed among the Distant Kindreds.
It is to be noted that a Distant Kindred cannot inherit in presence of any heir belonging to the class of Sharers or Residuaries. Where a propositus has no heir belonging to any of the three principal classes (although such cases are rare) the property devolves directly upon the successive subsidiary heirs, one by one in the order of priority.
In other words, if a propositus has no Sharer, Residuary or a Distant Kindred as his heir, his property is inherited by a successor by contract, if any, and in his absence, by an acknowledged kinsman, if there be any and, in his absence, too, it is inherited by the universal legatee if there is such a legatee under any will left by the deceased.
But, if there is none from among the above mentioned classes of heirs, the properties of the deceased are ultimately inherited by the State. State is the ultimate heir of every propositus.
However, the practical allotment of respective shares to each legal heir is not as simple as it appears from the scheme of distribution stated above. There are various rules and exceptions which make the distribution difficult. For instance, there are rules of exclusions under which one heir (of the same class) may be excluded by the presence of some other heir.
In certain cases, an heir may not be totally excluded but, his share, may be reduced in presence of some other heir. Moreover, in some cases an heir may inherit in double capacity e.g. father is a Sharer but, in certain cases he inherits also as a Residuary. In the following lines attempt has been made to enumerate the heirs of each class, their respective shares and, the rules relating to the distribution of properties among them.
The Sharers: Class I Heirs:
Sharers or the Quaranic heirs are Class I legal heirs of a propositus. The legal heirs of this class get preference over heirs of other classes. When the inheritance opens, following facts are to be ascertained: (1) Who are the heirs of Class I, i.e. who are the Quranic heirs of the propositus? (2) What is the respective share of such heir or heirs? (3) Whether such heir is excluded by, or his share is reduced, in presence of any other heir of the same class? (4) Any other fact which may affect his inheritance. On the basis of these facts, the heritable property is distributed first of all, among his Sharers.
The Sharers, their respective shares and the conditions under which they inherit, is given in brief in the list given below. It is to be noted that the relations mentioned in the list are relations of the propositus e.g. widow means widow of the propositus or, child means child of the propositus etc.
Relations by Affinity:
I. Husband:
(i) The husband gets 1/2 if there is no (a) child or, (b) child of son how low soever (hereinafter called h.l.s.)
(ii) The husband gets 1/4 if there is (a) child, or (b) child of son h. l.s.
That is to say, in the absence of children, the husband’s share is 1/2 whereas; in the presence of children his share is 1/4.
II. Widow:
(1) The widow gets 1/4 if there is no (a) child, or (b) child of son h.l.s.
(2) The widow gets 1/8 if she is with (a) child, or (b) child of son h.l.s.
(3) If the propositus had left more than one widowed, all the widows share equally out of the 1/4 or 1/8 share, as the case may be.
Relations by Blood:
III. Father:
(1) Father without (a) child or, (b) child of son h.l.s is treated as Residuary i.e. ceases to be a Quranic heir and is entitled to get the residue after allotment of shares to other Quranic heirs.
(2) Father together with (a) child, or (b) child of son h.l.s. gets 1/6. In other words, in the absence of children the father becomes a Residuary whereas in presence of the children his share is 1/6.
IV. True Grandfather:
(1) True grandfather is entitled to inherit only in the absence of father. That is to say, if the propositus dies leaving behind both, father and a true grandfather, the true grandfather cannot inherit.
(2) If there is no father, the true grandfather inherits like a father. That is to say, if there is no father, the true grandfather would become Residuary in the absence of children. But, in presence of the children a true grandfather gets 1/6.
V. Mother:
(1) The share of mother is 1/3 in the absence of:
(a) Child, or
(b) Child of a son h.l.s., or
(c) Two full sisters, or
(d) Two full brothers, or
(e) One brother plus one sister, whether full, consanguine or uterine.
In other words, if together with mother there are none of the above-mentioned relations, her share is 1/3.
(2) The share of mother is 1/6 in the presence of:
(a) Child, or
(b) Child of son h.l.s., or
(c) Two full sisters or
(d) Two full brothers, or
(e) One brother plus one sister whether full, consanguine or uterine.
In other words, if there are any one of the above-mentioned relations from (a) to (e) the share of mother is reduced to 1/6.
(3) If mother is with father and there is also widow (or husband) the mother gets 1/3 of what remains after deducting the share of widow (or husband). In this peculiar combination the mother (without children) does not get 1/3 of the whole property because m that case father’s share would become half of mother which is against the general principle that share of a male should be double the share of female.
VI. True Grandmother:
(1) The true grand-mother inherits only where she is not excluded by the presence of any of the relations given below.
(2) If not excluded, the share of true grandmother is 1/6 whether she is one or more than one. Two or more grandmothers get 1/6 jointly.
(3) A maternal grandmother is excluded from inheritance in the presence of:
(a) Mother, or
(b) A nearer maternal or paternal true grandmother.
(4) A parternal grandmother is excluded from inheritance in the presence of:
(a) Mother, or
(b) Father, or
(c) A nearer true-grandmother whether maternal or paternal.
In other words, a maternal true-grandmother gets her 1/6 share only in the absence of mother and any nearer grandmother. A paternal true-grandmother gets her 1/6 share only in absence of mother, father and any nearer true grandmother.
VII. Daughter:
(1) The share of one daughter is 1/2.
(2) If there are two or more daughters, the share is 2/3 to be divided equally among them.
(3) Daughter together with son is treated as agnatic heir i.e. inherits as Residuary.
VIII. Son’s Daughter:
(1) The son’s daughter inherits only in the absence of:
(a) Two or more daughters, or
(b) Son, or
(c) Higher son’s son, or
(d) Two or more higher son’s daughter.
In other words the son’s daughter is entirely excluded from inheritance in presence of the above relations.
(2) In the absence of above relations, the son’s daughter gets 1/2 if single and, 2/3 if more than one.
(3) If son’s daughter is together with one daughter, the share of son’s daughter is 1/6 whether such son’s daughter is single or more. For example, if there is a daughter and two son’s daughters, the share of son’s daughters would be 1/6 which would be divided equally among them i.e. each son’s daughter would get 1/12.
(4) Son’s daughter together with son’s son is treated as agnatic heir i.e. inherits as Residuary.
IX. Full-Sister:
(1) The share of one full sister is 1/2.
(2) The share of two or more full sisters is 2/3 to be divided equally among them.
(3) If full sister is together with full’ brother, she becomes an agnatic heir and inherits as Residuary.
(4) A full sister is excluded from inheritance in the presence of:
(a) Child, or
(b) Child of son h.l.s., or
(c) Father, or
(d) Father’s father.
X. Consanguine-Sister:
(1) The share of one consanguine sister is 1/2.
(2) The share of two or more consanguine sisters is 2/3 to be divided equally among them.
(3) With one full-sister, the share of consanguine sister is 1/6 whether single or more.
(4) The consanguine sister is excluded from inheritance in the presence of:
(a) Child, or
(b) Child of son h.l.s., or
(c) Father, or
(d) Father’s father, or
(e) Two full sisters, or
(f) One full brother.
(5) With consanguine brother, the consanguine sister becomes agnatic heir and inherits as Residuary.
XI. Uterine-Brother:
(1) The share of one uterine brother is 1/6.
(2) If there are two or more uterine brothers, their share is 1/3 to be equally divided among them.
(3) Uterine brother is excluded from inheritance in the presence of:
(a) Child, or
(b) Child of son h.l.s., or
(c) Father, or
(d) Father’s father.
XII. Uterine-Sister:
The share and the conditions under which an uterine sister inherits a property is the same as that of uterine brother. That is to say:
(1) The share of one uterine sister is 1/6.
(2) If there are two or more uterine sisters their share is 1/3 to be divided equally among them.
(3) Uterine sister is excluded from inheritance in the presence of (a) child, (b) child of a son, (c) daffier, and (d) father’s father.
Allotment of Shares:
Illustrations:
(1) A Sunni Muslim dies leaving behind h s (a) father, (b) father’s father, (c) mother, (d) mother’s mother, (e) two daughters and (f) son’s daughter. The allotment of their respective shares would be as under:
Father 1/6 (because there is a child, daughter)
Father’s father excluded by father
Mother 1/6 (because there are children i.e., daughters)
Mother’s mother excluded by mother two daughters 2/3
Son’s daughter excluded by two daughters
After allotment of the respective shares to each of them the sum total of the shares is 1/6 + 1/6 + 2/3 = 6/6 =1. Thus, we find that the total property has been exhausted. It is significant to note that heritable property is taken to be one (i.e. suppose the property is one).
Now the sum total of shares given to the heirs also comes out to be one. Therefore, the property is neither less nor in excess of the shares. In this case, as the property is exhausted, the distribution is complete and there is no need of proceeding further.
(2) The propositus leaves behind her (a) husband and (b) father as her legal heirs. The allotment of the shares to each heir is given below:
Husband 1/2 (without children)
Father Residuary (without children)
In the absence of children, the father ceases to be a Sharer and becomes a Residuary. Residuaries get the residue i.e. the property which remains after giving to the Sharers. Thus, the respective shares of the husband and father are as under:
Husband 1/2
Father 1/2 (1-1/2).
The sum total is 1/2 +1/2=1 and the property exhausts.
(3) A Sunni Muslim dies leaving behind the (a) mother, (b) two sisters and (c) father. Their respective shares are given as under:
Mother 1/6 (because there are two sisters).
Father Residuary (without children).
Two sisters (excluded by father).
In this illustration, it is to be noted that the mother’s share is reduced to 1/6 in the presence of two sisters. Secondly, as there are no children (child or, child of son h.l.s.) of the propositus, the father is treated as Residuary.
Thirdly, the two sisters themselves have been excluded from inheritance in the presence of father. Thus, mother as a Sharer gets 1/6. After giving to mother, the remaining property is 5/6 (1-1/6). This 5/6 residue goes to father. Accordingly, the shares are:
Mother 1/6
Father 5/6 (residue)
Two sisters Nil / 6/6
As the property exhausts, the distribution is closed.
(4) If the only heirs of a propositus are mother and father, the allotment of their shares is as under:
Mother 1/3 (because there is no child)
Father 2/3 (residue, because in the absence of child the father is a Residuary).
The sum total is 1/3 plus 2/3 i.e. unity, that is to say, the property exhausts.
(5) A Sunni Muslim dies leaving behind (a) mother, (b) father (c) brother and (d) Sister. The respective shares may be allotted as under:
Mother 1/6 (because there is one brother plus one sister)
Father Residuary (because there are no children)
Brother excluded by father Sister excluded by father.
Here, we notice that mother does not get her normal share 1/3 because there is one brother and one sister. In presence of a brother plus a sister, her share is reduced to 1/6. Secondly, without children (of the propositus) the father becomes Residuary. Thirdly, a brother and sister (whether the brother or sisters are full or, consanguine or uterine) are excluded in the presence of father. Therefore finally the respective shares are:
Mother 1/6
Father 5/6(1-1/6)
Brother Nil Excluded from inheritance.
Sister Nil
6/6=1; that is to say, the property exhausts.
(6) A Sunni Muslim dies leaving behind her (a) husband (b) mother and (c) father. The shares of each of them are:
Husband 1/2 (because there are no children)
Mother 1/3 of what remains after giving to husband Father Residuary (because there are no children)
This is a peculiar case. In the absence of children, normally the share of the mother is 1/3. But, if the mother is together with father, and there is also the husband (or wife) she gets 1/3 of what remains after giving to the husband (or wife) she gets 1/3 of whole. Thus the share of mother is 1/3 of (1-1/2) i.e. 1/3 of 1/2. Thus in this case mother’s share is 1/6.
In the absence of children the father becomes Residuary and therefore gets 1—(1/2+1/6) or 1/3 which remains after giving to the Quranic heirs (husband and mother). It is to be noted that reason behind this peculiar rule is that if mother gets her normal share 1/3 then the residue for the father would be only 1/6. This will be against the general rule that share of a male is double the share of a female. Accordingly, the final distribution of shares in this case is as under:
Husband 1/2
Mother 1/6 (1/3 of 1/2)
Father 1/3 (as Residuary)
The sum total of the shares is 1/2 plus 1/6 plus l/3=6/6=l and the property exhausts.
(7) It may be noted that only the father (with husband or wife) reduces the share of a mother. The father’s father does not reduce her share. In the following illustration, the father’s father being a Residuary gets only that much property which is available after allotting the shares of widow and mother. Thus, the father’s father gets l-(l/4+l/3) = 5/12. Finally, the shares of each of them may be given as under:
Widow 1/4 (without children)
Mother 1/3 (without children)
Father’s father 5/12 (Residuary)
The sum total of their shares is 1/4+1/3+5/12=12/12=1. That is to say, the property exhausts.
(8) A (Sunni propositus dies leaving behind the (a) father (b) father’s mother (paternal grandmother) and (c) mother’s mother (maternal grandmother). The respective position of each of the legal heir may be given as under:
Father Residuary
Father’s mother Excluded by father,
Mother’s mother 1/6 (Quranic heir)
It may be noted that the father’s mother is paternal true grand-mother and is excluded by the mother. But mother’s mother being a maternal grandmother, may be excluded only by any nearer true grandmother (paternal or maternal). As there is no nearer grandmother, the mother’s mother is not excluded from inheritance and gets her share of 1/6. Accordingly, the respective shares are:
Father 5/6 (Residuary)
Father’s mother excluded by father
Mother’s mother 1/6 (Quranic heir)
Here, if the heirs were father, father’s mother and mother’s mother’s mother, the father would have taken the whole as Residuary because father’s mother is excluded by father and mother’s mother’s mother is excluded by father’s mother (a near grandmother).
(9) A Sunni Muslim dies leaving behind (a) father (b) mother (c) daughter and (d) son’s daughter. The allotment of their respective shares is given below:
Father 1/6
Mother 1/6
Daughter 1/2
Son’s daughter 1/6
In this illustration, all the heirs are Shares or the Quranic heirs. Together with children (i.e. daughter and son’s daughter) the shares of father and mother is 1/6 each. The share of single daughter is 1/2. The son’s daughter gets 1/6 in presence of one daughter. Had there been two daughters, the son’s daughter would have been excluded.
However, in presence of a daughter the share of son’s daughter is reduced to 1/6 whether, single or more. Thus, in this illustration, if there had been four son’s daughters the 1/6 share was to be inherited by them collectively and the 1/6 had to be divided equally among all the four son’s daughters each getting 1/24.
(10) The heirs of a Sunni propositus are (a) father, (b) mother (c) son’s daughter and, (d) son’s son’s daughter. Allotment of their respective share is given below:
Father 1/6
Mother 1/6
Son’s daughter 1/2
Son’s Son’s daughter 1/6
It may be noted that in the absence of daughter, the allotment of shares between son’s daughter and son’s son’s daughter is the same as between a daughter and son’s daughter. Therefore, there being only one son’s daughter, the son’s son’s daughter is not excluded but her share is only 1/6.
Had there been two or more sons’ son’s daughters their shares would have been the same (1/6) to be divided equally among them. Moreover, had there been two son’s daughters, the son’s son’s daughter would have been entirely excluded from inheritance.
(11) The heirs of a Sunni propositus are (a) two full sisters and, (b) two uterine sisters. Allotment of their shares is as under:
Two full sisters 2/3 (each taking 1/2 of 2/3)
Two uterine sisters 1/3 (each taking 1/2 of 1/3)
It is to be noted that the same shares are available also to consanguine sister and uterine brother. Therefore, if the heirs are (a) two consanguine sisters and (b) two uterine brothers, the shares are the same.
Two consanguine sisters 2/3 (each taking 1/2 of 2/3)
Two uterine brothers 1/3 (each taking 1/2 of 1/3)
(12) A Sunni Muslim dies leaving behind (a) mother (b) three full sisters (c) a consanguine sister and (d) a uterine sister (or, a uterine brother). The respective shares of these legal heirs are:
Mother 1/6 (Because there is more than one full sister)
Three full sisters 2/3 (each taking 1/3 of 2/3)
Consanguine sister Excluded by two or more full sisters.
Uterine sister
(Or, uterine brother) 1/6
It is significant to note that in all the illustrations given above, the sum total of the shares comes out to be unity. This means that after allotment of shares to the Sharers, the property exhausts; the property is neither in excess nor falls short of the number of shares.
After adding all the shares, if the fraction is say x/y then, the numerator (x) denotes the number of shares whereas, the denominator (y) denoted the fractions or pieces of the property. If x becomes equal to v, then it means that number of piece of property is exactly the same as the number of shares. The result is that the sum total of the respective shares becomes unity.
But, these illustrations have been specially arranged to make the sum total unity and may be said to be the simplest cases in distribution of shares among the heirs. In most of the cases we may find that after allotment of the shares the sum total is either more than unity or is less than unity.
That is to say, there may be cases where either the snare is in excess of property or, the property is in excess of the shares. In such a circumstance, the doctrine of increase or the doctrine of return, as the case may be, is applied for distribution of property in order to make the sum total (of shares) unity.
Doctrine of Increase (Aul):
After allotment of the respective shares to Sharers, if the sum total exceeds unity, the doctrine of increase (Aul) is applied. As discussed in the preceding lines, in the fraction of the aggregate of shares, the numerator denotes total number of shares and the denominator denotes the pieces of heritable property.
For example, if the aggregate of the shares is 13/12 then, 13 represents the number of shares and 12 represents fragments or pieces of the property. In this case, therefore, the number of shares exceeds the number of fragments of property. In other words, the fragments or pieces of the property are less than the number of shares.
In the distribution of shares among legal heirs, two things must be taken into account; firstly, the sum total must come out to be unity and, secondly, the respective shares of the Sharers cannot be changed because they are specified in Quran. Therefore, for making the aggregate unity without changing the respective shares, the fragments of property is increased by adopting the following method:
Keeping the numerator intact, the denominator is increased in such a manner that the denominator (i.e. total number of fragments of property) becomes equal to the numerator (total number of shares). Thus, instead of altering the respective shares which are of divine origin, the pieces of heritable property are enhanced. By this process the aggregate of the shares is made unity.
This signifies that the property (presumed to be one) exhausts without affecting the shares. For example, if the aggregate is 13/12, we find that denominator is short of one (piece) therefore, by adding one to denominator (12+1) it becomes 13 i.e. equal to the numerator. Similarly, if the aggregate is 15/13 we have to add two to the denominator (13+2) to make it equal to numerator.
Shia Law:
Under the Shia law, as discussed in detail in the following pages, the excess share is directly deducted from the share of (a) daughter or (b) full sister.
Illustrations:
(1) A Sunni propositus dies leaving her (a) husband, and (b) two full sisters. The normal shares are:
Husband 1/2 (Sharer)
Two full sisters 2/3 (Sharer)
Here, the sum total of the shares is not unity, it is (1/2 x 2/3) = 7/6 which is greater than unity. Thus the aggregate of the shares of husband and two full sisters may be given as under:
3+4
1/2+2/3 = Z =7/6 6
Or, 3/6+4/6= 7/6
By applying the doctrine of increase, we add one to the denominator so that it becomes (6+1) = 7. Thus, we have increased the number of fragments of property without altering the shares. Now, taking this increased denominator (i.e. 7) as the common denominator, we may allot the respective shares.
Husband 3/7
Two full sisters 4/7
7/7
Shia Law:
Under the Shia law the excess share (1/6) is deducted from the share of two sisters. Thus the share of the two sisters becomes 2/3—1/6 or 4/6—1/6= 3/6. Accordingly, the respective shares under Shia law are:
Husband 3/6
Two full sisters 3/6
6/6=1
Note: (1)
It may be noted that although the principle is that the Quranic shares cannot be altered by any human effort and in the application of this doctrine apparently the shares have not been affected but, if we examine it minutely, we find that the quantum of property which each heir has to get as Quranic Sharer is reduced.
However, the ratio or the proportion in which they normally get the shares and which they now got after application of the doctrine remains the same. It is therefore submitted that by applying the doctrine of increase, although in principle the shares remain unchanged yet, in practice the quantum of their share is reduced. In the following illustrations, the new shares (after application of the doctrine) are given as shares reduced to, which indicate the shares with the enhanced denominator.
(2) A Sunni Muslim dies leaving behind her (a) husband (b) two full sisters and (c) mother. The allotment of their shares is given below:
Husband 1/2
Two full sisters 2/3
Mother 1/6
The sum total of their shares is 1/2 x 2/3 x 1/6 = 8/6. Accordingly, the doctrine of Aul is to be applied. First of all, let us make a common denominator of all the fractional shares:
Husband 1/2 or 3/6
Two full sisters 2/3 or 4/6
Mother 1/6
8/6
Now, for applying the doctrine of increase we have to enhance the denominator by two (6 + 2 = 8). This enhanced denominator is made the common denominator of the shares. Thus, finally the respective shares are:
Husband 1/2 or 3/6 reduced to 3/8
Two full sisters 2/3 or 4/6 reduced to 4/8
Mother 1/6 or 1/6 reduced to 1/8
The answer is therefore, that final shares of (a) husband (b) two full sisters and (c) mother are 3/8, 4/8 and 1/8 respectively.
(3) If the heirs of a Sunni propositus are (a) husband (b) mother (c) two daughters, the shares of each of them are as under:
Husband 1/4 (in presence of daughters)
Mother 1/6 (in presence of daughters)
Two daughters 2/3 (collectively).
As the aggregate of their shares is 13/12, the doctrine of increase is to be applied by enhancing the denominator to 13 and making common denominator of the respective shares:
Husband 1/4 or 3/12 reduced to 3/13
Mother 1/6 or 2/12 reduced to 2/13
Two daughters 2/3 or 8/12 reduced to 8/13 (each taking 8/26).
(4) The heirs of a Sunni propositus are (a) husband (b) mother (c) daughter and (d) son’s daughter. The legal heirs are Sharers or Class I heirs and the sum total of their shares is more than unity. The doctrine of increase is applicable:
Husband 1 /4 or 3/12 reduced to 3/13
Mother 1/6 or 2/12 reduced to 2/13
Daughter 1/2 or 6/12 reduced to 6/13
Son’s daughter 1/6 or 2/12 reduced to 2/13
13/12 13/13 = 1
(5) The heirs of a Sunni Muslim are his (a) widow (b) two full sisters and, (c) two uterine sisters. The heirs are Sharers and the sum total of their shares is more than unity:
Widow 1/4 or, 3/12 reduced to 3/15
Two full sisters 2/3 or, 8/12 reduced to 8/15
Two uterine sisters 1/3 or, 4/12 reduced to 4/15
15/15= 1
(6) The heirs of a Sunni propositus are (a) husband (b) father (c) mother and (d) three daughters. All the legal heirs are Sharers and the sum total of their shares is more than one, therefore, the doctrine of increase is applicable:
1/4 or 3/12 reduced to 3/15 1/6 or 2/12 reduced to 2/15 1/6 or 2/12 reduced to 2/15 2/3 or 8/12 reduced to 8/15
15/15= 1
(7) A Sunni Muslim dies leaving behind (a) widow (b) two full sisters (c) two uterine sisters and, (d) mother. The allotment of their shares, after application of the doctrine of increase, is as under:
1/4 or 3/12 reduced to 3/17 2/3 or 8/12 reduced to 8/17 1/3 or 4/12 reduced to 4/17 1/6 or 2/12 reduced to 2/17
17/17= 1.
(8) A Sunni propositus dies leaving his (a) widow (b) father (c) mother and (d) two daughters. The allotment of their shares, after application of the doctrine of increase, is given below:
Widow 1/8 or 3/24 reduced to 3/27
Father 1/6 or 4/24 reduced to 4/27
Mother 1/6 or 4/24 reduced to 4/27
Two daughters 2/3 or 16/24 reduced to 16/27
27/27 = 1
Doctrine of Return (Radd):
Where the sum total of shares is less than unity, the doctrine of return is applicable. As discussed earlier, in the fraction of the sum total of shares, the numerator represents as the’ total number of shares and denominator denotes the number of pieces of property.
Therefore, where the sum total of all the shares comes out to be less than unity, it implies that number of shares is less than the number of fragments of property. For example, if the sum total of shares is 5/12 this means that shares are 5 whereas the pieces of heritable property are 12.
This situation indicates that after allotting the respective shares to the Sharers there still remains some (fragments of) property and there are no Residuary or other heirs to get this residue. In such cases the doctrine of return (Radd) is applied under which the excess property is returned back and is added to the respective shares of the legal heirs, in proportion of their own shares. According to Mulla:
“If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts to the sharers in proportion to their shares. This right of reverted is technically called ‘Return’ or Radd.’
The residue is added to the shares of the respective Sharers according to following rules:
(1) The residue is added to the shares of each heir in proportion of their own share. Thus, in the above example where the sum total was 5/12 the residue is (1 – 5/12) i.e. 7/12. This 7/12 is to be added to the share of say, father and sisters in proportion of their own shares i.e. in the ratio of 1/6 and 1/2 respectively.
(2) The husband and widow do not participate in return. If, among the legal heirs of a propositus, there is a husband or widow the surplus is not added to their shares. That is to say, the residue returns to all the heirs (in proportion of their own shares) except the husband or widow. However, if widow (or husband) is the sole surviving heir of a Sunni Muslim, she inherits the whole property.
For example, if widow is the sole surviving heir of a deceased, the widow gets 1/4 as Sharer and would also get the remaining 3/4 in return (Radd). In such cases the surplus 3/4 is not escheated to the Government. Similarly, this rule may be applicable if husband is the only heir of a propositus.
Shia law:
Under the Shia law, besides husband or widow, in some exceptional cases, the mother and uterine brother and sister also do not participate in return.
The Method:
The method of adding the surplus property among heirs (except husband or widow) in proportion to their own shares is given below:
(a) First of all the respective Quranic shares are allotted to all the Sharers.
(b) If there is a husband or widow among the heirs, his (or her) share is left apart. That is to say, this share remains unaffected from further calculations.
(c) Out of one property (as the heritable property is always supposed to be one) the share of husband or widow, as the case may’ be, is deducted. In this manner, after giving the share of husband (or widow) the ‘remaining heritable property’ is obtained.
(d) Now, the proportion or ratio of the respective shares of remaining heirs is calculated. For example, if the remaining heris are a daughter and mother, their Quranic shares are 1/2 and 1/6 respectively. The ratio of these shares is 1/2: 1/6. Thus, the ratio of the daughter’s and mother’s share is 3:1. In other words, if property is 4, daughter’s share is 3/4, and mother’s share is 1/4.
(e) Now, ‘the remaining heritable property’ is divided among the heirs (accepting husband or widow) in the ratio of 3:1. For instance, after deducting the Quranic share of say widow (1/8) the remaining heritable property is (1-1/8) = 7/8. This is distributed among the daughter and mother in the ratio of 3:1. Accordingly, the shares of the daughter and mother are 3/4 of 7/8 and 1/4 of 7/8 respectively.
It is significant to note that by application of the doctrine of return, the quantum of the share of each heir (except husband or widow) is increased. However, this increase or addition is in the same proportion as is the ratio of their own shares.
Illustrations:
(1) A Sunni Muslim dies leaving her (a) husband and (b) mother. Their shares may be calculated as under:
Husband 1/2 (Sharer)
Mother 1/3 (Sharer)
The sum total of their shares is 1/2 + 1/3 = 5/6, whereas, the property to be distributed is one. Thus, there is a surplus property. The surplus property is (1-5/6) i.e. 1/6. This surplus property would return back to the heirs.
But, husband (or widow) does not get the surplus. Here, we find that excepting husband the only surviving heir is the mother. Therefore, this surplus would be added to the share of mother. Thus, the share of mother is 1/3 + 1/6 = 1/2. In this manner, finally the shares of husband and mother are:
Husband 1/2 (Sharer)
Mother 1/2 (1/3 as Sharer + 1/6 in return)
(2) The surviving heirs of a Sunni Muslim are (a) husband and (b) daughter. The allotment of their normal shares is as under;
Husband 1/4 (Sharer)
Mother 1/2 (Sharer)
Total of their shares is 1/4 + 1/2 = 3/4. Thus, we find that out of one property, there still remains a surplus of 1/4. As the husband cannot participate in return this surplus goes to daughter and her share in the property is now 1/2 + 1/4 = 3/4. Finally, the shares are:
Husband 1/4 (Sharer)
Daughter 3/4 (1/2 as Sharer + 1/4 in return)
(3) The surviving heirs-of a Sunni Muslim are (a) husband (b) mother and (c) daughter. In calculating the shares of each of them, first of all we may allot the normal shares:
Husband 1/4 (with child)
Mother 1/6 (with child)
Daughter 1/2 (single)
11/12
Thus the property has not been exhausted and there still remains (1-11/12) i.e. 1/12, property to be distributed among the heirs. The doctrine of return (Radd) is to be applied in the following manner. As the husband does not participate in return, his share (1/4) is left apart. The property to be distributed is one and after excluding husband’s share we have 3/4 property.
If this 3/4 is distributed among the remaining heirs (i.e. mother and daughters) in the ratio of their initial shares, they would automatically get a share in which the surplus 1/12 is already included. The ratio of mother and daughter’s share is 1/6: 1/2 i.e. 1: 3.
In other words, the mother’s share is 1/4 and daughter’s share is 3/4. But, after deducting the husband’s share, we have 3/4 to be distributed among rest of the heirs. Therefore, the mother’s share is now 1/4 of 3/4 and the daughter’s share is 3/4 of 3/4. Finally, the respective shares of each if the given heirs are:
Husband 1/4 (not participating in return)
Mother 1/4 of 3/4 = 3/16
Daughter 3/4 of 3/4 = 9/16
For the sake of uniformity in the denominator, the husband’s share 1/4 may also be changed to 4/16. Now the shares of husband, mother and daughter are 4/16, 3/16 and 9/16 respectively.
(4) The surviving heirs of a propositus are (a) widow (b) mother and (c) daughter.
The shares of each of them may be calculated in the following manner:
Widow 1/8
Mother 1/6
Daughter 1/2
19/24
Thus, the doctrine of return is to be applied. Leaving apart the widow’s share (1/8) there remains 7/8 property. If 7/8 is distributed among mother and daughter in the ratio of their own shares (1/6: 1/2) then the mother’s and daughter’s share would automatically be increased and the surplus is included in their respective shares. The ratio of the shares of mother and daughter being 1: 3 the shares of each of them are as under:
Widow 1/8 = 4/32
Mother 1/6 increased to (1/4 of 7/8) or 7/32
Daughter 1/2 increased to (3/4 of 7/8) or 21/32
We find that after application of the doctrine of return the respective shares of the widow, mother and daughter come out to be 4/32, 7/32 and 21/32 the, sum total of which is unity. This also indicates that the calculation is mathematically correct.
(5) A Sunni Muslim dies leaving his (a) widow (b) mother (c) uterine sister and (d) uterine brother. Thus normal shares of each of them may be given as under:
Widow 1/4 (without children)
Mother 1/6 (because there is one uterine brother + one uterine sister).
Uterine sister 1/6 (single)
Uterine brother 1/6 (single)
9/12
The sum total of normal shares is less than unity which indicates that there remains a surplus property; therefore, the doctrine of return is to be applied. Leaving apart 1/4 share of the widow who does not participate in return’ we get 3/4 property which is to be distributed among mother, uterine brother and the uterine sister.
The ratio of the normal shares of mother, uterine sister and uterine brother is 1/6: 1/6: 1/6 i.e. 1: 1: 1. In other words, according to this ratio any property is to be divided equally among them. Thus if the property is one, each would get 1/3.
But the property which is available for distribution among mother, uterine brother and uterine sister is 3/4. Accordingly, after application of the doctrine of return, the respective shares are:
Widow 1/4 or 3/12
Mother 1/6 increased to (1/3 of 3/4) = 3/12
Uterine sister 1/6 increased to (1/3 of 3/4) = 3/12
Uterine brother 1/6 increased to (1/3 of 3/4) =3/12
12/12
(6) The surviving heirs of a Sunni Muslim are (a) widow, (b) mother and (c) two son’s daughters. Their respective Quranic shares are as under:
Widow 1/8 (with children)
Mother 1/6 (with children)
Two son’s daughters 2/3 (collectively)
23/24
As the sum total of normal shares is less than unity, the doctrine of return is to be applied. Keeping apart the widow’s share (1/8) there remains 7/8 property which is to be divided among mother and the two son’s daughters in the ratio of 1/6: 2/3. The ratio of mother and son’s daughter’s share may be calculated as under:
1/6 + 2/3 or 1/6 + 4Ó6 = 5/6
This means that if the property is 5 the mother and the two son’s daughters would get 1/5 and 4/5, respectively. But, after deducting widow’s share (1/8) we have 7/8 property which is to be distributed among mother and son’s daughters. Thus, after the application of the doctrine, finally the shares are:
Widow 1/8 or 5/40
Mother 1/5 of 7/8 = 7/40
Two son’s daughter 4/5 of 7/8 = 28/40
40/40 = 1
(7) A Sunni Muslim dies leaving (a) widow, (b) full sister and (c) consanguine sisters. Their normal Quranic shares are as under:
Widow 1/4
Full sister 1/2
Consanguine sister 1/6
11/12
The sum total is less than unity; therefore, the doctrine of return is applied. Widow 1/4 or 4/16
Full sister 1/2 increased to (3/4 of 3/4) =9/16
Consanguine sister 1/6 increased to (1/4 of 3/4) = 3/16
It may be noted that in the above mentioned illustrations among the heirs, one heir is either husband or widow of the propositus. As the husband and widow do not participate in return, their shares have been left apart and the remaining property has been distributed among the other heirs in the ratio of their initial shares. In the following illustrations, there is neither husband nor widow among the surviving heirs of the propositus.
(8) A Sunni Muslim dies leaving (a) mother; (b) daughter and (c) son’s daughter as the surviving heirs. Let us allot their respective normal shares.
Mother 1/6
Daughter 1/2
Son’s daughter 1/6
5/6
As the sum total is less than unity, the doctrine of Return is to be applied. Now, in this illustration, there is neither husband nor widow. Therefore, none of the heir has to be kept apart for purposes of return; all the heirs would get the surplus (1/6) property.
This means that if we distribute the whole property (i.e. 1) among all the heirs in the ratio of 1/6: 1/2: 1/6 the whole property would be exhausted and there would be an automatic increase in the share of each heir. For calculating the ratio of the shares, the following method is adopted:
1/6 + 1/2 + 1/6 or 1/6 + 3/6 + 1/6 = 5/6
Now, making the sum of numerators (i.e. 5) as the common denominator we find that if the property is 5 the mother’s share would be 1/5, and the daughter’s share would be 3/5 and the son’s daughter’s share would be 1/5. As the property to be distributed among them is one, the respective shares are as under:
Mother 1/5 of 1 = 1/5
Daughter 3/5 of 1 = 3/5
Son’s daughter 1/5 of 1 = 1/5
5/5
(9) Mother, full sister and uterine brother are the legal heirs of a Sunni propositus. The allotment of their Quranic shares is given below:
Mother 1/6 (because there is one brother + one sister)
Full sister 1/2
Uterine brother 1/6
5/6.
(10) The only surviving heris of a Sunni Muslim are (a) mother and (b) a son’s daughter. Their normal shares are:
Mother 1/6
Son’s daughter 1/2
4/6
As the sum total is less than unity, the doctrine of return is to be applied. The ratio of the shares may be calculated as under:
1/6 + 1/2 or 1/6 = 3/6 = 4/6
Accordingly, the ratio of the shares of mother and son’s daughter is 1: 3 or 1/4 and 3/4, respectively. As the property is one, the final shares, after application of the doctrine of return, are given, below:
Mother 1/4 of 1 = 1/4
Son’s daughter 3/4 of 1 = 3/4
4/4 = 1
(11) A Sunni Muslim dies leaving behind (a) full sister, (b) a consanguine sister and (c) a uterine sister. The shares may be allotted as under:
Full sister 1/2
Consanguine sister 1/6 Uterine sister 1/6
5/6
The sum total of shares being less than unity, doctrine of return is applicable. The ratio of the shares of each heir is 1/2: 1/6: 1/6 or 3/6: 1/6: 1/6. The total of numerators is 3+l+l=5. Taking 5 as the common denominator, the ratio is 3: 1: 1 or 3/5, 1/5, 1/5. As, all the heirs are participating in return the whole (i.e., 1) property may be distributed among these heirs in the above ratio. Finally, the respective shares come out to be:
Full sister 3/5 of 1 = 3/5
Consanguine sister 1/5 of 1 = 1/5 uterine sister 1/5 of 1 = 1/5
5/5
(12) The surviving heirs of a Sunni Muslim are (a) father’s mother, (b) mother’s mother and (c) two daughters:
The Residuaries: Class II Heirs:
The Residuaries constitute Class II of the heirs of a Sunni propositus. Where a propositus has no Sharer at all, the whole property is inherited by the Residuaries. Secondly, if there are Sharers but after giving the property to them, there remains a residue and among heirs there are also the residuaries, the residue is distributed among such Residuaries.
It may be noted that in certain combinations the Sharers themselves are treated as Residuaries e.g., daughter with son, sister together with brother. A father without children (of the propositus) is treated as Residuary. It is significant to note that residuary heirs have no fixed share.
Their shares depend upon the amount of property left as residue which may vary from case to case. The Residuaries may be from among the descendants, ascendants or collaterals. A list of Residuaries and rules relating to their inheritance is given below:
Descendants:
1. Son:
(i) When there is no daughter, the son takes the entire residue.
(ii) When the son is together with a daughter, the son gets double the share of daughter.
2. Son’s son h.l.s:
(i) Nearer son’s son excludes the remoter,
(ii) Two or more sons’s sons inherit equally,
(iii) Son’s daughter together with son’s son becomes Residuary but the son’s son gets double the share of Son’s daughter.
Ascendants:
3. Father:
As a Residuary, the father gets the entire residue.
4. True Grandfather:
A true grandfather also takes the entire, residue but a nearer true grandfather excludes the remotor.
Collaterals: Descendants of Father:
5. Full Brother:
(i) If there is no full sister, the full brother inherits the entire residue.
(ii) If there is also a full sister, the full brother inherits with her but his share is double the share of a sister.
6. Full Sister:
In the absence of full brother and other Residuaries enumerated in the preceding lines from(l) to (4), the full sister is treated as Residuary provided there is (1) daughter(s) or (2) son’s daughter h.l.s. or (3) one daughter and a son’s daughter h.l.s.
7. Consanguine Brother:
A consanguine brother inherits together with consanguine sister but the share of consanguine brother is double the share of consanguine sister.
8. Consanguine sister:
In the absence of consanguine brother and any of the Residuaries given above from
(1) to (6) the consanguine sister is treated as Residuary and takes the residue provided there is (1) daughter(s) or (2) son’s daughter(s) h.l.s. or (3) one daughter and a son’s daughter(s) h.l.s.
9. Full Brother’s sons:
10. Consanguine Brother’s son In default of the abovementioned
11. Full Brother’s Son’s son Residuaries they take entire residue
12. Consanguine Brother’s Son’s son in order of priority.
Collaterals: Descendants of T.G. F:
13. Full paternal uncle
14. Consanguine paternal uncle
15. Full paternal uncle’s son
16. Consanguine paternal uncle’s son
17. Full paternal uncle’s son’s son
18. Consanguine paternal uncle’s son’s son Distribution of property among Residuaries
Where Residuaries are the only legal heirs of a propositus the whole property is distributed among them. If all the Residuaries are males, the property is divided among them equally. But, if the Residuaries include also females, the property is divided in such a manner that share of a male is double the share of a female.
Where, among the legal heirs of a propositus there are Sharers and Residuaries both, the whole property is not given to the Residuaries. In such circumstance the specific shares of the Sharers are allotted first and, the remaining property is distributed among the Residuaries. The distribution of property among Residuaries may be understood with the help of following illustrations.
(1) A Sunni Muslim dies leaving a son and a daughter. Here, we find that daughter is a Sharer but because she is together with son, she is treated as Residuary. As there are no other heirs, the whole property is to be given to the son and the daughter.
But it is to be given to them in such a manner that share of a son is double the share of daughter. In other words, the ratio of the share of son (male) and daughter (female) is to be 2: 1. That is to say 2/3 and 1/3. Thus, the respective shares of the son and daughter are:
Son 2/3 of 1 = 2/3
Daughter 1/3 of 1 = 1/3
3/3
(2) The only heirs of a Sunni Muslim are (a) two sons and (b) three daughters. For determining the ratio of males and females, following simple formula may be applied.
(Number of males) x 2 + (Number of females) = X
Now, making X as the denominator and number of males and the number of females as the numerators, the shares of males and females may be obtained.
Thus, in the present illustration.
2 (i.e. number of males) x 2 + 3 (i.e. number of females) or, 4 + 3 = 7 accordingly, the shares are
Two sons All (share of each son being All x 1/2 = 2/7)
Three daughters 3/7 (share of each daughter being 3/7 x 1/3 = 1/7)
(3) The only heirs of a Sunni propositus are (a) Son’s son and (b) son’s daughter. In this case, although son’s daughter is a Sharer but she is together with son’s son, therefore, she is treated as Residuary.
No. of male x 2 + No. of females = 3 Son’s son 2/3
Son’s daughter 1/3
(4) A Sunni Muslim dies leaving her (a) husband, (b) mother, (c) son, and (d) daughter. In this case, we find that heirs of the deceased include Sharers as well as Residuaries. Their normal shares are given below:
Husband 1/4 (Sharer)
Mother 1/6 (Sharer)
Son
Residuaries
Daughter
After giving the property to husband and mother, there remains some residue which is 1 – (1/4 + 1/6) = 7/12. This 7/12 residue is to be distributed between son and daughter in the ratio of 2: 1. That is to say the son and daughter would get 2/3 and 1/3, respectively if property is 3. But, here the residue is only 7/12. Therefore, in this residue, the son and daughter would get (2/3 of 7/12) and (1/3 of 7/12), respectively. Finally, the shares of the legal heirs are as under:
Husband 1/4 or, 9/36
Mother 1/6 or, 6/36
Son (2/3 of 7/12) = 14/36
Daughter (1/3 of 7/12) = 7/36
(5) The only heirs of a Sunni propositus are (a) mother and (b) father. Their respective shares are:
Mother 1/3 (Sharer)
Father _ 2/3 (Residuary without children)
(6) Where the only heirs are (a) daughter and (b) father, the shares are :
Daughter 1/2 (Sharer)
Father 1/6 (Sharer) + 1/3 (Residuary)
Here, we find that daughter and father both are Sharers and as such get their definite Quranic shares 1/2 and 1/6 respectively. But, there still remains a residue of 1/3. This 1/3 is given to father as Residuary. As is evident from this illustration, a father inherits in double capacity when he is together with daughter or son’s daughter.
(7) However, where the father is together with son or son’s son, he inherits only as Residuary. In such cases he does not inherit in double capacity.
Father 1/6 (Sharer)
Son (or son’s son) 5/6 (Residuary)
(8) The heirs of a Sunni propositus are (a) husband, (b) mother, (c) brother, and (d) sister. Here, except brother, all the heirs are Sharers. But, sister together with brother is treated as Residuary. Therefore, after allotting the shares of husband and mother, the residuary (1/3) is divided among the brother and sister in a ratio of 2: 1.
Husband 1/2 (Sharer, without children)
Mother 1/6 (Sharer, with one brother + one sister)
Brother 2/3 of 1/3 = 2/9
Residuary Sister 1/3 of 1/3 = 1/9
For uniformity, we may have a common denominator and the respective shares may be given as under:
Husband 1 /2 or 9/18
Mother 1/6 or 3/18
Brother ‘2/9 or 4/18
Sister 1/9 or 2/18
18/18= 1
(9) The heirs of a Sunni propositus are (a) widow, (b) mother and (c) paternal uncle. Here, widow and mother are Sharers but paternal uncle is a Residuary. Therefore the residue goes to him:
Widow 1/4 (Sharer)
Mother 1/3 (Sharer)
Paternal uncle 1 – (1/4 + 1/3) = 5/12 (Residuary)
(10) The heirs of a Sunni propositus are (a) full sister, (b) consanguine sister, (c) mother and (d) brother’s son. Here, the first three heirs are the Sharers but the last one is a Residuary.
Full sister 1/2
Consanguine sister 1/6 Mother 1/6
Brother’s son 1 – (1/2 + 1/6 + 1/6) = 1/6 (Residue)
The Distant Kindreds:
Class III Heirs:
In the absence of Sharers and Residuaries, the properties devolve upon the Distant Kindreds or the Uterine Heirs of the propositus. However, there is an exception to this general rule. Where the only heirs are the husband (or widow) and the Distant Kindreds, the Distant Kindreds get the residue after allotment of share to husband (or widow).
In other words, normally the Distant Kindreds are excluded by Sharers and Residuaries but in the exceptional, situation; the Distant Kindreds are entitled to inherit together with a Sharer husband (or widow).
Classification of Distant Kindreds
The Distant Kindreds are classified into four classes, given below in the order of priority:
Class I.
Descendants of the propositus other than Sharers and Residuaries. In this class following relations are included:
(i) Daughter’s children and their descendants.
(ii) Children of son’s daughter h.l.s. and their descendants.
Class II.
Ascendants of the parents of propositus other than Sharers and Residuaries. This class comprises of:
(i) False grandfather h.h.s.
(ii) False grandmother h.h.s.
Class III. Descendants of the parents of propositus other than Sharers and Residuaries. This class of Distant Kindreds consists of:
(i) Full brother’s daughter and her descendants.
(ii) Consanguine brother’s daughter and her descendants.
(iii) Uterine brother’s children and their descendants.
(iv) Daughters of full brother’s son’s h.l.s. and their descendants.
(v) Daughters of consanguine brother’s son’s h.l.s. and their descendants.
(vi) Sister’s (full, consanguine or uterine) children and their descendants.
Class IV. Descendants of ascendants h.h.s. other than Residuaries. This class includes descendants of immediate grandparents (true or false) and the descendant of remoter ancestor’s h.h.s. (true or false).
The descendants of immediate grandparents are given below:
(i) Full paternal uncles’ daughter and their descendants.
(ii) Consanguine paternal uncle’s daughters and their descendants.
(iii) Uterine paternal uncles and their children and their descendants.
(iv) Daughters of full paternal uncle’s son’s h.l.s. and their descendants.
(v) Daughters of consanguine paternal uncle’s son’s h.l.s. and their descendants.
(vi) Paternal aunts (full, consanguine or uterine) and their children and descendants.
(vii) Maternal uncles and aunts and their children and their descendants.
After these Distant Kindreds, follow the descendants of remoter ancestors how high soever (true or false).
Distribution of property among Distant Kindreds
As discussed earlier, the Distant Kindreds, or the uterine heirs, have been included in four classes. Class I excludes Class II, Class II excludes Class III and Class III excludes Class IV. Within a particular class or group of Distant Kindreds, the distribution of property is according to following principles:
Class I: Descendants:
In this class, the order of priority is:
(i) Daughter’s children.
(ii) Son’s daughter’s children.
(iii) Daughter’s grandchildren, and
(iv) Son’s son’s daughter’s children and the remoter heirs.
It is to be noted that heirs of a group are entitled to inherit strictly according to the order of succession given above. That is to say, relations in (ii) above may inherit only in absence of relations in (i) and so on. Allotment of the shares among Distant Kindreds of this class (descendants) is made in accordance with the following rules:
Rule (1):
Where the intermediate ancestor of the claimants are of similar sex, the property is divided among them as per capita subject to the general rule that share of a male is double the share of female. For example, if the Distant Kindreds are (a) daughter’s son (b) daughter’s daughter, the sex of intermediate ancestor of both of them is the same.
But, as the claimants themselves differ in sex, therefore, the property is distributed among the male and female claimants in the ratio of 2: 1.
Similarly, where the Distant Kindreds are (a) daughter’s son’s son and (b) daughter’s son’s daughter, the estate would devolve as under:
Here the intermediate ancestor of the claimants is son. The property is to be divided between the claimants in the ratio of 2: 1 as they differ in sex.
Rule (2):
Where the intermediate ancestor of the claimant (distant kindred) differs in sex, the property is distributed according to following rules:
(a) When there are two Distant Kindreds one claiming through one line and the other claiming through another line then, the following method is applied. Beginning from propositus, one has to stop at the first line of descent in which the sexes of intermrediate ancestors is different.
At this stage, the shares are allotted to these ancestors. Now, the same shares descend to the claimants. For example, the Distant Kindreds are (a) daughter’s son’s daughter and (b) daughter’s daughter’s son.
Here, we find that ancestors differ in their sex in the second line. At this stage we have to divide the property among son and daughter in the ratio of 2: 1. Now, the descendant of son would get son’s share and the descendant of daughter would get her share. Thus, the daughter’s son’s daughter would get 2/3 and daughter’s son would get 1/3.
(b) When there are three or more Distant Kindreds claiming through different line of descent, the rule is to stop at the stage where the sexes of the intermediate ancestor differ and to assign the shares to male and female ancestors in the ratio of 2: 1; but unlike (a) above the individual share of each ancestor does not descend to his or her descendants.
The collective share of all the male ancestors will be divided among all the descendants claiming through them, and the collective share of all the female ancestors will be divided among their descendants. This rule may be illustrated by the following example. A Muslim dies leaving (a) daughter’s son’s daughter (b) daughter’s daughter’s son and (c) daughter’s daughter’s daughter.
Here, the ancestors differ in sexes in the second line of descent. In this line we find one male and two females. Applying the general rule that share of a male is double the share of a female, we may distribute the property at this stage. Thus we find that shares of the ancestors of this line are as under:
Now, we find that in the II line of descent, the son (i.e. daughter’s son) stands alone, therefore his share (1/2) descends to his daughter (i.e. daughter’s son’s daughter). Again, we find that the collective share of two daughters is 1/2. This property is to be divided among the son (daughter’s daughter’s son) and the daughter (daughter’s daughter’s daughter) in the ratio of 2: 1. Thus, finally the shares are:
Daughter’s son’s daughter 1/2 or 3/6
Daughter’s daughter’s son 2/3 of 1/2 = 2/6
Daughter’s daughter’s daughter 1/3 of 1/2 = 1/6
Class II: Ascendants:
In the absence of Distant Kindreds of Class I, the estate devolves upon Class II of the Distant Kindreds which consists of the ascendants of the propositus. The property is distributed among the Distant Kindreds of this group in the following order of succession:
(i) Mother’s father.
(ii) Father’s mother’s father and monther’s mother’s father in the ratio of 2: 1.
(iii) Mother’s father’s father and mother’s mother’s father in the ratio of 2: 1.
The property among the above mentioned relations is distributed in accordance with the following rules:
Rule (1):
The heir who is nearer in degree excludes the remoter heir.
Rule (2):
Among the claimants of the same degree, those connected with the propositus through sharers are preferred over those who are connected through Distant Kindreds.
Rule (3):
Where the claimants belong to the paternal as well as to maternal side, 2/3 is assigned to the paternal side and 1/3 to the maternal side. Thereafter, the share assigned to the paternal side (2/3) is divided among the ancestors of the father and the share assigned to the maternal side (1/3) is divided among the ancestors of the mother.
Class III: Collaterals: Descendants of Parents:
The descendants of brothers and sisters, who are neither Sharers nor Residuaries, are included in Class III of the Distant Kindreds. In the devolution of estate among the heirs of this class, following rules are applicable:
Rule (1):
The nearer in degree excludes the remoter. For example, the children of the brothers and sisters being nearer in degree exclude the grand children of such brothers and sisters
Rule (2):
Where the claimants belong to the same degree of relationship, the children of Residuaries are preferred to the children of Distant Kindreds. Thus, a brother’s son’s daughter (i.e. child of the Residuary, brother’s son) is preferred to sister’s daughter’s son (i.e. child of a distant kinswoman, sister’s daughter).
Rule (3):
Among the claimants of the same degree of relationship [who are not excluded under Rule (2) above], the descendants of full brother exclude the descendants of consanguine brothers and sisters.
However, the descendants of full sisters do not exclude the descendants of consanguine brothers and sisters and get the residue. The descendant of full or consanguine sisters also does not exclude the descendants of the uterine brothers and sisters. They inherit simultaneously.
Class IV: Collaterals: Descendants of Ascendant h.h.s:
This category of Distant Kindreds consists of uncles (or aunts) and the descendants of the uncle and aunts. It may be noted that practically the cases relating to the devolution of estate among the Distant Kindreds of this class are rare.
A detailed account of the rules of distribution of estate among the heirs of this category has, therefore, been avoided. However, a curious student may find full treatment of the rules of distribution of estate among the heirs of this complicated class of Distant Kindreds in authorities like Mulla, Tyabji and Wilson.
