If, on assigning their shares to the sharers, it is found that the total of the shares does not exhaust the whole, the residue will go to the residuaries.
But if there are no residuaries, the residue will not go to distant kindred, but would be distributed among the sharers in proportion to their shares. This right of reverter is called radd (“return”).
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Sunni Law:
ADVERTISEMENTS:
The residuaries take the surplus between them, after the shares are satisfied. But instances may occur where there is surplus left, but there are no residuaries to take it. Thus, suppose A dies leaving behind his mother and a son’s daughter (both sharers), and no residuaries. Their shares respectively are 1/6 and 1/2.
This together makes 2/3 of, 4’s property, leaving 1/3 of his property as surplus, with no residuary to take it. In such a case, the surplus reverts to the sharers in proportion to their shares. This is done by reducing the fractional shares to a common denominator, and by decreasing the denominator of those shares, so as to make it equal to the sum of the numerators. (This mathematical procedure is just the reverse of what is done in the doctrine of aul.)
Thus, in the above illustration, the shares of the mother and the son’s daughter are 1/6 and 1/2 respectively. Reducing them to the common denominator, gives 1/6 and 3/6. The sum of the numerators is (1+3) = 4. By decreasing the denominator of the shares to make it equal to the sum of the numerators, one arrives at 1/4 and 3/4.
These will be the shares of the two sharers. Thus, the Return (Radd) is the apportionment of surplus among the sharers, when the shares do not exhaust the property, and there are no residuaries.
ADVERTISEMENTS:
There is one exception to the right to reverter of the sharers. The husband or wife of the deceased is not entitled to share in the return, so long as there is any other heir. If there are any other sharers, they will share the return among themselves, without giving his or her share, the residue will go to the distant kindred, if any.
It is only when there is no other heir belonging to any of the three classes of heirs, sharers, residuaries or distant kindred, and the husband or wife is the only heir, that he or she will take the residue by return, i.e., the whole of the estate. (Mir Isub v. Isab, (1920) 20 Bom. L.R. 942.)
Problems:
1. A Sunni Muslim dies leaving as his heirs, a widow, daughter and his mother. What would be the shares of the parties in the estate of the deceased?
Ans:
The widow’s share would be 1/8, i.e., 4/32. The mother’s share, 1/6, would be increased to 1/4 of 7/8 i.e., 7/32. The daughter’s share, 1/2 would be increased to 3/4 of 7/8, i.e., 21/32.
ADVERTISEMENTS:
2. A Sunni woman dies, leaving a husband and a mother. How will the estate devolve?
Ans:
The husband is entitled to 1/2 as a sharer, and the mother to 1/2 (1/3 as sharer and 1/6 by return).
3. A Sunni woman dies, leaving a husband and a daughter. How will the estate devolve?
Ans:
The husband will get 1/4 as sharer, and the daughter 3/4 (1/2 as sharer and 1/4 by Return).
As seen above, the husband and the wife are excluded from the benefit of ‘Return’, only so long as there is any other heir, sharer or distant kindred. Thus, if A dies, leaving a widow (1/4 share) and two sisters (2/3 share), there is a surplus of 1/2, which will be divided between the two sisters, each taking 1/24. The widow will have no share in it. But, if A dies, leaving his widow as his only heir, she will take 1/4 as a sharer, and the remaining 3/4 by “return’’.
Shia Law:
Under the Shia law, if there is a surplus after satisfying the shares, it is not necessary that there should be no residuaries in order to apply the doctrine of return. If there is a surplus left after the allotment of shares of the sharers, but there are no residuaries in the class to which the shares belong, the surplus reverts to the sharers in the proportion of their respective shares.
Difference between ‘Increase’ and ‘Return’:
The doctrine of “return” is the converse of the doctrine of “increase”. In “increase”, the shares exceed unity, and suffer a proportionate reduction. In “return”, the shares fall short of unity, and are proportionately increased. In return, the husband and wife do not benefit if there is any other sharer or a distant kindred, but they are not saved from the operation of the doctrine of increase.
Thus, the important points of difference between the two are as under:
1. In ‘Increase’, the total of the shares adds up to more than unity; whereas in ‘return’ the total falls short of unity.
2. In ‘Increase’, the shares undergo rateable reduction. In ‘Return’, the shares undergo a rateable increase.
3. In ‘Increase’, the share of the husband or wife suffers a proportionate reduction along with other sharers. In ‘Return’, the husband or wife is not entitled to the ‘Return’ so long as there is any other heir, whether sharer or distant kindred.
