Comparative Analysis on Shia Law of Inheritance

THE MAHOMADEN LAW IS DIVIDED INTO TWO  BRANCHES:

1. Sunni law (Fiqah Hanafi) and

2. Shia Law (Fiqah Jafariah).

Further if we determine the Shia Law of inheritance there are most striking difference between Sunni and Shia law of inheritance systems is their distinct laws and such differences are so deep rooted that it is near impossible to bridge them. It is not mean that there is no space which is characterized by similarity at least there are quite 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. Taking into account their distinct structures, it is an uphill task to explain them within one scheme of elaboration.

FOR EXAMPLE:-

There is no difference between male and female heirs except to the extent that a male heir will have double share than that of a female heir. For instance, descendants of a Sunni deceased’s daughter are excluded from inheritance as per Sunni law as they are regarded as distant kindred whose right to inheritance will only be entertained in absence of the sharers and the residuaries,  while his son’s descendants will be entitled to his estate as they are regarded as the sharer or the residuary. Shia law does not differentiate between descendants of son and daughter and they are placed in the same class. When one descendant from the class is entitled, the other would also have his/her share. Similar to descendants of son and daughter, Sunni law divides descendants of brothers and sisters into the residuaries and distant kindred respectively, while Shia law does not prefer males over females in these situations nor place their descendants in different classes.

CLASSES OF LEGAL HEIRS

Shia law divides legal heirs into three basic classes which are the following

Class 1 Class 2Class 3
(i) Parents (i) Grandparents (True of False ) How high so ever, and (i) Paternal uncles and aunts,
(ii) Children (Male and Female). The children also include their descendants how low so ever irrespective of the fact whether they are descendants of male or female children (ii) Brothers and Sisters ( full, consanguine, and uterine) and their descendants (ii) Maternal uncles and aunts, and
How low so ever irrespective of their gender.(iii) Their children how low so ever irrespective of their gender.

Once the heirs are divided into the above classes, there are two basic rules which need to be understood.

Rule 1

As long as an heir (or more than one) is present from the class 1, no one  will be entitled to inheritance from the class 2: similarly, if there is an heir (or more than one) from the class 2, no will have anything from the class 3. These classes lay down a basic framework in which an estate of a Shia deceased is distributed except that deceased’s spouse is dealt with differently. We will take up this matter in the next section.

Rule 2

There is no difference between male and female heirs except to the extent that a male heir will have double share than that of a female heir. For instance, descendants of a Sunni deceased’s daughter are excluded from inheritance as per Sunni law as they are regarded as distant kindred whose right to inheritance will only be entertained in absence of the sharers and the residuaries, while his son’s descendants will be entitled to his estate as they are regarded as the sharer or the residuary. Shia law does not differentiate between descendants of son and daughter and they are placed in the same class. When one descendant from the class is entitled, the other would also have his/her share. Similar to descendants of son and daughter, Sunni law divides descendants of brothers and sisters into the residuaries and distant kindred respectively, while Shia law does not prefer males over females in these situations nor place their descendants in different classes.

Above Mention classes thereafter determine distribution of an estate among legal heirs and how to give preference to one legal heir over another. Appropriate appreciation of these classes helps one to understand Shia law of inheritance as details of the system in one manner or another are linked to it.

The Shia law recognizes only two classes, i.e. the sharers and the residuaries. There is no concept of distant kindred in Shia law. Most of those who are regarded as distant kindred in Sunni law relate to a deceased from his female descendants (e.g. daughter’s children, son’s daughter’s children) or other female relatives (e.g. mother’s father, mother’s brother and sister, sister’s children etc.). As Shia law places these females and their ascendants and descendants in above mentioned classes along with their male counterparts, there remains no need to have another class of legal heirs like the distant kindred in Shia scheme of inheritance.

Another aspect we take into account while discussing Sunni law was distinguishing paternal and maternal grandfathers into true and false grandfathers. As is apparent from the above classification, there is no such distinction in Shia law. Both paternal and maternal grandfathers are placed in the same class. Again this difference is an outcome of absence of the distant kindred in Shia scheme of inheritance.

The significance extended to the residuaries in Sunni law is not visible as such in Shia law. Shia law has significantly reduced it by dividing the legal heirs into the above classes. For instance, brother (one or more than one) is regarded as a residuary in Sunni law in absence of deceased’s son (including son’s male descendants) and father. It means that if a Sunni person dies leaving behind a daughter and a brother, the daughter will have half as a sharer while the rest will be inherited by the brother as a residuary. If the same kind of situation arises with respect to a Shia person, the persons in the class 1 will exclude those who are located in the class 2. This implies that the daughter will have the first half as a sharer while another half will be given to her under the principle of /faaW/return.

And if we discuss the inheritance of spouses as per shia law of inheritance

As is apparent from the above three-fold classification of heirs in Shia law, spouses are not placed in anyone of them. The above referred classes are jointly known as heirs by consanguinity in Shia law, while spouses are termed as heirs by affinity. The heirs by consanguinity are also termed as heirs by Nasab, while the heirs by affinity are heirs by Sabab. Thus, husband and wife form an independent category similar to Sunni law which is only affected by presence or absence of deceased’s children. If there are children of a deceased, husband or wife will inherit 1/4 or 1/8 respectively.

But if a deceased dies issueless, husband or wife will have 1/2 or 1/4 respectively. If a deceased husband leaves behind more than one wife as legal heirs, they will share jointly in their prescribed share, i.e. 1/4 or 1/8.

Further there is Few Differences in Inheritance of Spouses

There are a few differences between Sunni and Shia laws regarding inheritance of spouses. Some Shia schools recognise temporary marriage as a valid marriage. According these schools, only permanently married spouses are entitled to right of inheritance from each other. There is one important distinction between Shia and Sunni laws regarding the inheritance of childless widow. In the former law, she is not entitled to land or immovable property though she has a right to her prescribed share from her deceased husband’s movable assets. On the other hand, Sunni law does not differentiate between immovable and movable properties of a deceased; hence, a childless widow is entitled to have her share from the both.

In Sunni law, spouses do not benefit under the principle of Raddl return in the first place, i.e. in presence of other sharers. The same is the rule under Shia law. For instance, if a person dies leaving behind his wife and a daughter, the wife will inherit 1/8, and 7/8 will be given to the daughter.

 And as about laws regarding the inheritance of childless widow.

                Sir D.F. Mulla (17th Edition), the status of a childless widow for the purposeof inheritance under Shia Fiqah has been discussed as follows:

“Section 113. Childless widow.—A childless widow takes no share in her husband’s land, but she is entitled to her one-forth share in the value of trees and buildings standing thereon, as well               as in his movable property including debts due            to him though they may be secured by a usufractuary mortgage or otherwise.”

                Apart from it, right of inheritance of a Shia widow from the estate of her deceased husband, not being a childless widow, is also clearly established from the table of sharers under Section 90 of the same book, where in the column of sharers she is placed at serial No.2, with normal share of 1/8, being one or more.

FOR THE CONCLUSION THE ABOVE INTERPRETATION WE DESCRIBE BELOW MENTION TABLE OF SHARES AS PER SHIA LAW OF INHERITANCE FOR THE BETTER DETERMINATION

Shares Normal Share
When only one heir is present
Normal Share
When two or more heirs are present
Conditions under which the normal share is inherited Variation of Shares
Husband 1/4In the presence of a child of a son how low so ever 1/2 in absence of a child of a son how low so ever
Wife 1/81/8In the presence of a child of a son how low so ever 1/4 in absence of a child of a son how low so ever
Daughter 1/22/3in the absence of a son in presence of a son she become a residuary
father 1/6in the presence of a child a son how low so ever in absence of a child of child of s son how low so ever the father inherits as a residuary
Mother 1/6in the presence of a child or a child of a son how low so ever, or two or more brothers or sisters, or even one full, consanguine or uterine brother and one such sister 1/3 in the absence of a child or child of a son how low so ever, and not more than one brother and sister (if any) ; but if the wife or husband and the father is also presence then only 1/3 of what remains after deducting the share of spouse
True grandfather 1/6in the presence of a child of a son how low so ever, and in absence if the father or a nearer true grandfatherin absence if a child or child of a son how low so ever, the true grandfather inherits as a residuary, provided there is no father or nearer true grandfather
true grandmother 1/61/6a maternal true grandmother takes in absence of a mother, and a nearer true grandmother and a paternal true grandmother
Son's Daughter how low so ever 1/22/3In absence of a son, Daughter, a higher son's daughter or an equal son's sonin absence of a son. higher son' son, or an equal son, soon and when there is only one daughter, or higher son's daughter of higher son's daughter will take 1/2 and the soon's daughter how low o ever ( whether one or more will take 1/6)
Son's Daughter 1/22/3In absence of a son, Daughter, or son's sonin absence of a son or son's son and presence of a only one daughter the son's daughter ( whether one or more) will take 1/6 (in presence of a son's son, she becomes a residuary )
Son's Son's Daughter 1/22/3In absence of a son, Daughter, son's son's, son's daughter, or a son's son's son in absence of a son, son's son or son's son's son and in presence of only daughter or son's daughter, the son's son's daughter ( whether one or more) will take 1/6 ( in presence of a son''s son's son she becomes a residuary
Uterine brother
Uterine sister
1/61/3In absence of a child, child of a son how low so ever, father or ture grandfather
Full sister 1/22/3In absence of a child, child of a son how low so ever, father, true grandfather, full brother in presence of a full brother she becomes a residaury
Consanguine sister 1/22/3In absence of a child, child of a son how low so ever, father, ture grandfather, full brother, full sister, or consanguine brother When there is only one full sister and she successeds as a sharer, the consanguine sister (whether one or more will take 1/6, if she is not otherwise excluded. ( with the consanguine brother she becomes a residuary)
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