(..6 B..)
ITHNA ASHRIA INHERITANCE
QUESTION BANK
Q.1. Explain the succession under Ithna Ashria School.
SHORT NOTES
- Succession under Ithna Ashria School.
SYNOPSIS
- INTRODUCTION.
- CLASSIFICATION OF HEIRS.
(1) Heirs by consanguinity (Nasab)-
(2) Heirs by marriage (Zoujiyat), that is, husband and wife.
III. RULES OF SUCCESSION.
- DISTRIBUTION OF PROPERTY AMONG HEIRS OF THE FIRST
CLASS.
Husband.— , Wife.— , Father.— ,Mother.—,Daughter.— ,Son.— ,Grandchildren.—, Remote Lineal Descendants-, Doctrine of ‘Increase’-,
Doctrine of ‘Return’ or Radd.-
- V) DISTRIBUTION AMONG HEIRS OF THE SECOND CLASS.
- DISTRIBUTION AMONG HEIRS OF THE THIRD CLASS.
VII RESIDUARIES.
VIII DIFFERENCE BETWEEN SUNNI LAW OF SUCCESSION AND
SHIA LAW OF SUCCESSION.
- Rule of primogeniture.
- Principle of Consanguinity.
- Classification of Heirs.
- Doctrine of Representation.
- Distant Kindred.
- Doctrine of ‘Increase’.
- Movable and Immovable Property.
I] INTRODUCTION.
The most important and widespread sect[1] in Shia School is Ithna Ashraria School. It is also called ‘Twelvers’ because they are followers of twelve Imams (in strict lineal descent through Musa-al-Kasim). This school is further divided into two sections, the Akhbaries and Usualis. The followers of Akhbaries are rigid traditionalists, while the Usualis allow a free scope to human reason in interpreting the Koran (i.e. Quiyas). They are found in Lebanon, Iran, Iraq, Pakistan and India. In India, the largest sub-sect of Shia is the Ithna Ashria School.
Since the Ithna Ashria School is the largest Shia School, the rules of inheritance in Shia (with minute changes) are the rules of inheritance in Ithna Ashria School. Hence, we will discuss the following rules of succession among Ithna Ashria School (i.e. Shia School). Thus, Ithna Ashria School is identified with Shia School (with minute changes).
II] CLASSIFICATION OF HEIRS.
Shia law divides the heirs on two grounds -namely,
(1) Heirs by consanguinity (Nasab):-
These heirs are blood relatives. They are divided into the following three classes, and each class is subdivided into two sections.-
Class I (i) Parents.
(ii) Children and other lineal descendants h.l.s.
Class II (i) Grandparents (true or false) h.h.s.
(ii) Brothers and sisters and their descendants h.l.s.
Class III (i) Paternal and
(ii) Maternal uncles and aunts of the deceased, his parents and grandparents h.h.s, and their descendants h.l.s.
Class I excludes Class II, and Class II excludes Class III. However, the heirs of different sections within a class inherit together and do not exclude each other. However, the nearer degree in each section excludes the more remote in that section.
(2) Heirs by marriage (Zoujiyat), i.e. husband and wife.
III] RULES OF SUCCESSION.
The following rules are applied in the case of succession in Ithna Ashria (Shiya) School.
- Shia recognises two groups of heirs only: sharers and residuaries. The Class of Distant Kindred is not recognised in Shiya succession.
- If the deceased had left only one heir, he would inherit the whole property.
- To some extent, for calculating the share of the sharers, Shia recognises the principle of representation. In other words, the distribution of property takes place per stripe.
- The husband or wife is never excluded from the inheritance, but they inherit together with the nearest heir by consanguinity.
IV] DISTRIBUTION OF PROPERTY AMONG HEIRS OF THE FIRST CLASS.
The Class I heirs and the husband or wife succeed in the deceased’s property. Class I heirs comprise the father, mother, children, and in the absence of children, other lineal descendants h.l.s
Husband-Husband takes 1/4 where there is a lineal descendant. Where there is no lineal descendant, he takes 1/2.
Wife-wife takes 1/8 share where there is a lineal descendant. She takes 1/4 where there is no lineal descendant.
Father-Father takes 1/6 share (as specified by the Koran) if there is a lineal descendant. If there is none, he takes it as a residuary.
Mother-Mother takes 1/6 when there is (a) a lineal descendant, (b) two or more full or consanguine brothers, (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 take 2/3, provided there is a son, then she takes as residuary along with him.
Son- Son is always residuary.
Grandchildren- In the absence of children, the grandchildren stand in the shoes of their respective parents and take the same share that their parents would have taken had they been alive.
Remote Lineal[2] Descendants– The distribution of assets among the remote descendants takes on the same basis as among the grandchildren.
The doctrine of ‘Increase’-
The doctrine of ‘increase’ is not recognised in Shia Law. But if the total of shares exceeds the unity, the fraction in excess is always deducted from the share of the following sharers-
- i) daughter or daughter’s. (ii) full or consanguine sister or sisters (but not uterine sister).
The doctrine of ‘Return’ or Radd.-
The doctrine of return under Shia law is subject to the following three exceptions (i.e., the following persons are not entitled to the benefit of the return of surplus property)-
(i) If there are other heirs, however 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 and full sisters, then the uterine brothers and sisters are not entitled to the return.
V] DISTRIBUTION AMONG HEIRS OF THE SECOND CLASS.
Class II comprises-
(i) Grandparents (true or false) h.h.s.
(ii) Brothers and sisters and their descendants h.l.s.
The two sections do not exclude each other. On the contrary, they inherit simultaneously, but the nearer excludes the remoter within the section.
Illustration-Father’s father 2/3
Mother’s mother 1/3
Heirs in the line on the paternal side get a double share with maternal relations. If only one grandparent is in the maternal line, he or she will get 2/3. Similarly, if only one grandparent is in the maternal line, he or she would get 1/3.
VI] DISTRIBUTION AMONG HEIRS OF THE THIRD CLASS.
Firstly, the surviving spouse is allotted his share, and the residue is divided among the following relations in order of priority:
(i) Paternal and maternal uncles and aunts of the deceased,
(ii) their descendants h.l.s., the nearer excluding, the remoter,
(iii) paternal and maternal uncles and aunts of the parents of the deceased, and
(iv) their descendants; h. 1. s., the nearer excluding, the remoter,
(v) paternal and maternal uncles and aunts of the grand-parents,
(vi) their descendants h.l.s, the nearer excluding, the remoter,
(vii) remote uncles and aunts and their descendants in like order.
Of the above groups, each, in turn, must be exhausted before any member of the next group can succeed.
VII] RESIDUARIES.
The heirs who are not Sharers are Residuaries and are not entitled to any fixed share in the property. Instead, they get the residue (what is left). The descendants h.l.s of Residuaries are also Residuaries.
There are nine Sharers under Shia Law. Four of these Sharers sometimes inherit as Sharers and sometimes as Residuaries. Those are (1) father, (2) daughter, (3) full sister and (4) consanguine sister. The descendants of a person who, if living, would have taken as a Sharer succeed as Sharers. The descendants of a person who, if living, would have taken as a Residuary succeed as Residuaries.
VIII] DIFFERENCE BETWEEN SUNNI LAW OF SUCCESSION AND SHIA LAW OF SUCCESSION
Sunni | Shia Law |
1) Rule of primogeniture:-Sunni Law does not recognise the doctrine of primogeniture.
2) Principle of Consanguinity:-Sunni Law does not recognise the principle of consanguinity. The Sunni prefers agnates to cognates. 3) Classification of Heirs:-Heirs under Sunni Law are classified under three groups, viz.(i)Sharers, ii) Residuaries, (iii) Distant kindred. 4) Doctrine of Representation:- The doctrine of representation is not recognised under Sunni Law. 5) Distant Kindred:- Under the Sunni Law, the Distant Kindred does not inherit before or on survivorship of Sharers and Residuaries. 6) Doctrine of ‘Increase’:- Under the Hanifi Law, the doc trine of ‘Increase’ extends to all the Sharers alike (i.e. all sharer’s share is proportionately decreased). 7) Movable and Immovable Property:- Under Sunni law, there is no distinction between movable and immovable property left by the deceased. |
Shia Law recognises it to a limited extent. Thus the eldest son is entitled to his deceased father’s sword, wearing apparel, ring and the Koran.
The Shia Law adopts the principle of consanguinity and not of agnates and cognates. Instead, the Shia prefer the nearest kinsmen; they may be agnates or cognates. Under Shia Law, heirs are divided into two classes: (i) Sharer and (ii) Residuaries.
The Doctrine of Representation is the bedrock of the Shia Law of inheritance.
They inherit along with Sharers and Residuaries.
Under the Shia Law, the doctrine applies (i.e. share reduces) only against the daughter and sister.
In the case of a childless widow, the Shia Law distinguishes between movable and immovable property. Therefore, a childless widow cannot take any share in her husband’s immovable property. |
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[1] पंथ [संप्रदाय]
[2] दूरचे वंसज [दूरस्थ रेखीय वंशज]