Doctrine of Radd and Aul: Explanation and Difference
Doctrine of Radd and Aul: Explanation and Difference | Overview Introduction Rules for Determining the Shares of the Heirs Doctrine of Radd Doctrine of ‘Aul’ Differences and Conclusion | Doctrine of Radd and Aul The Right of the Sharers to revert back the Residue property to the Sharers in absence of the residuary heirs is called as the… Read More »
Doctrine of Radd and Aul: Explanation and Difference | Overview Introduction Rules for Determining the Shares of the Heirs Doctrine of Radd Doctrine of ‘Aul’ Differences and Conclusion | Doctrine of Radd and Aul The Right of the Sharers to revert back the Residue property to the Sharers in absence of the residuary heirs is called as the Return or Doctrine of Radd. In case, the total sum of the specific shares allotted to various shares exceeds the unity then the doctrine of increase...
Doctrine of Radd and Aul: Explanation and Difference | Overview
- Introduction
- Rules for Determining the Shares of the Heirs
- Doctrine of Radd
- Doctrine of ‘Aul’
- Differences and Conclusion | Doctrine of Radd and Aul
The Right of the Sharers to revert back the Residue property to the Sharers in absence of the residuary heirs is called as the Return or Doctrine of Radd. In case, the total sum of the specific shares allotted to various shares exceeds the unity then the doctrine of increase (Aul) comes into the application and the specific share of each sharer is reduced in a proportionate manner.
Introduction
The Muslim law of inheritance has got a dual basis. The whole body of rules relating to inheritance is based on a) Quran and the traditions of Prophet and, on b) such pre-Islamic customs which were approved by the Prophet.[1] This article aims at analyzing the Doctrine of Radd and Aul.
The Principles of Intestate Succession come into place in case a person dies without leaving his will for the distribution of the property owned by him at the time of his death. The heirs according to the Mohammedan Law are divided into three classes. The first class is called the Zav-il-Furuz or the Sharers, the second class is called the Asabah or residuaries or agnates and the third class is called the Zav-il-Arham or the Distant Kindred (uterine relations).[2]
In case any balance is left after distributing the property of the deceased among the Sharers, the residue of the property shall be distributed amongst the heirs falling under this category namely the Asabah or Agnates. The heirs falling under this category are commonly known as the Residuaries because they take the residue of the property of the deceased person.
It is pretty clear that in the ·Muslim law of inheritance which allots a number or fractional parts of unity to various heirs, it may happen that the fractions when added together may sometimes be (i) equal to unity, (ii) more than unity, or (iii) less than unity. When the sum of fractions is equal to unity, there is no problem. But if it is more· or less than unity, the shares of respective heirs are reduced or increased respectively. The process whereby the shares are reduced is called the Doctrine of AUL (Increase), and the process whereby the shares are increased is called the Doctrine of Radd (Return).
I. Rules for Determining the Shares of the Heirs
The Rules which helps in determining the Share of the Quranic Heirs or the Sharers under the Muslim Law of inheritance are as follows:
- The process of determining the Shares of the Heirs starts from determining the Heritable Property and it is the Residue that remains after payment of funeral expenses, debts, and legacy.
- The next step involves ascertaining the surviving relatives of the deceased person. If the relative fall under the category of the Sharers then they are entitled to the Share of Inheritance and they cannot be totally or partially excluded from inheriting the property. Also, the person who is related to the deceased through some other person will not be entitled to inherit the property of the deceased until the other person through whom the person is related is alive. Thus, within the limits of each class of heirs, the nearer excludes the remoter.
- After ascertaining the heirs, the respective shares to which the sharers are entitled are assigned to them. In case, it is found that the total sum of the respective shares exceeds the unity, then the share of each share is reduced proportionately by the process called Increase or ‘Aul’.
- In case, the residue is left after assigning the respective shares of the Sharers, then it devolves to the legal heirs falling under the category of residuaries. If there is no heir of the deceased which falls under the category of residuary then the residuary property reverts back to the Sharers and is distributed amongst the sharers in the proportionate shares. This process is called as Return or ‘Radd’.[3]
II. Doctrine of Radd
If Residue is left after distributing the property of the deceased amongst the Sharers, but there is no heir of the deceased falling under the category of Residuary, the residue of the property reverts back to the Sharers in the proportion of their shares. The Right of the Sharers to revert back the Residue property to the Sharers in absence of the residuary heirs is called as the Return or Doctrine of ‘Radd’.
The Doctrine of Return: According to this Doctrine under the Muslim Law, the residue property returns to the Sharers and not the Distant Kindred in absence of any heir under the residuary category. If there is more than one Sharer then the property should be returned in the proportionate shares and if there is one sharer then the whole of the residue property should be transferred back to the sole sharer. The residue cannot be transferred to the Distant Kindred because according to the rules, the distant kindred do not get anything so long as there is a Sharer or Residuary alive.
Exception: The exception to this doctrine is that neither the husband nor the wife is entitled to the return so long as there is another sharer or distant kindred alive.
However, according to the early orthodox law, this return of residue property was not allowed in the case of a husband or a wife but the later lawyers have allowed the return to a husband or wife when there are no other heirs and this claim has been recognized in India in M. A. Chowdry v. S. Banoo,[4] and Bafatun v. B. Khanum.[5]
If, for example, a male dies leaving his mother whose share is 1/6 and a daughter whose share is 1/2 but no widow. And, if there were two brothers, one of them died leaving two widows. Then the second brother also died leaving behind a widow. It was decided that she would get 1/4 shares as a sharer and remaining 3/4 by the doctrine of Radd.
Illustration: This Doctrine of ‘Return’ or ‘Radd’ can be explained with the help of an illustration where a person dies leaving behind his property. Then the property left after paying for her funeral expenses, debts and legacies are distributed among the Sharers. The Mother and the Daughter of the deceased are alive and fall under the category of Sharer. Then, the mother will be entitled to 1/6th of the property and daughter will be entitled to 1/2 of the property.
The total sum of the properties of Mother and Daughter will be, 1/6 + 1/2 = 2/3. 2/3 is less than the unity and the 1/3 of the property will still remain after distributing the property amongst the Sharers. Therefore, in this case, the doctrine of ‘Return’ or ‘Radd’ will apply.
The first step would be to reduce the fractions of the Sharers to a common denominator. Thus, 1/6 + 1/2 = 2/3 = 1/6 + 3/6 (The fractions are reduced in such a form where 6 is the common denominator).
The second step would be to decrease the denominator to make it equal to the sum of numerators and allow the individual numerators to remain the same as they were. Thus, 1/6 + 3/6 will become 1/4 + 3/4 (in this case, the denominator is made equal to 4 because the sum of both the numerators is 4).
Hence, with the help of this doctrine, the Shares of the Sharers are increased proportionately in such a manner that the sum of the Shares of the property of Sharers becomes equal to unity.
III. Doctrine of ‘Aul’
In case, the total sum of the specific shares allotted to various shares exceeds the unity then the doctrine of increase (Aul) comes into the application and the specific share of each sharer is reduced in a proportionate manner. The proportionate share reduces in the following manner.
- By reducing the shares to a common denominator.
- By increasing the denominator to make it equal to the sum of the numerators allowing the numerators to stand as they are.[6]
Illustration: This Doctrine of ‘Aul’ can be explained with the help of an illustration where a woman dies leaving behind her property. Then the property left after paying for her funeral expenses, debts and legacies are distributed among the Sharers. The husband of the deceased woman and her two full sisters are alive and fall under the category of Sharer. Then, the Husband will be entitled to 1/2 of the property of the deceased and the two full sisters will be entitled to 2/3rd of the property.
Total of 1/2 and 2/3 will be 7/6 which exceeds the unity and hence, in this case, the Doctrine of Increase or ‘Aul’ will come into application.
The first step would be to reduce the fractions of the Sharers to a common denominator. Thus, 1/2 + 2/3 = 7/6 = 3/6 + 4/6 (The fractions are reduced in such a form where 6 is the common denominator).
The second step would be to increase the denominator to make it equal to the sum of numerators and allow the individual numerators to remain the same as they were. Thus, 3/6 + 4/6 will become 3/7 + 4/7 (in this case, the denominator is made equal to 7 because the sum of both the numerators is 7).
Hence, with the help of this doctrine, the total sum of the shares of the property of Sharers are reduced in a proportionate manner and become equal to unity.
Summary of another illustration:
| Husband: | 1/2 = 3/6 reduced to 3/8 |
| Two Full Sisters: | 2/3 = 4/6 reduced to 4/8 |
| Mother: | 1/6 = 1/6 reduced to 1/8 |
IV. Differences and Conclusion | Doctrine of Radd and Aul
When the sum of fractions of properties to Sharers is equal to unity, there is no problem. But if it is more· or less than unity, the shares of respective heirs are reduced or increased respectively. The process whereby the shares are reduced is called the Doctrine of Increase or Doctrine of ‘AUL’; and the process whereby the shares are increased is called the Doctrine of Return or Doctrine of ‘Radd’.
The Steps involved in the Doctrine of Increase as well as in the Doctrine of Return are almost similar to each other. The first step involves the reduction of the fractions of the Sharers to a common denominator. Subsequently, the second step involves increasing/decreasing the denominator to make it equal to the sum of numerators, and allow the individual numerators to remain the same as they were.
The shares obtained will be the reduced shares in case the initial sum of their property exceeds unity. Similarly, the shares obtained in case the initial sum of their property remains less than the unity will be the additional proportionate share of the property they will get. Therefore, the differences formulated by the author between the Doctrine of Return and the Doctrine of Increase are as follows:
- In ‘Increase’, the total of the shares adds up to more than unity; whereas in ‘return’ the total falls short of unity.
- In ‘Increase’, the shares undergo rateable reduction. In ‘Return’, the shares undergo a rateable increase.
- 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.
However, some difference of opinion exists between Shia and Sunni Muslims with regard to the Doctrine of Increase or ‘Aul’. According to Sunni law, the doctrine implies a proportionate reduction of all the shares. On the other hand, the law governing the Shia Muslims provides the reduction of the shares of the daughter or the daughter and full or consanguine sister or sisters only. Other heirs do not suffer.[7]
[1] Hidayatullah, M., “Mulla: Principles of Mohammedan Law”, 19th ed., 1990, (3rd rep. 2005), Butterworths, New Delhi.
[2] Saleem Marsoof P.C, Judge of the Supreme Court of Sri Lanka (1970) ‘SUCCESSION UNDER MUSLIM LAW’, Academia.edu
[3] M.P.Tandon & R. Tandon, Mohammedan Law, Eleventh. edition, p.343.
[4] M. A. Chowdry v. S. Banoo, (1878) I. L. R. 3 Calcutta p. 702.
[5] Bafatun v. B. Khanum, (1903) I. L. R. 30 Calcutta (683).
[6] Saleem Marsoof P.C, Judge of the Supreme Court of Sri Lanka (1970) ‘SUCCESSION UNDER MUSLIM LAW’, Academia.edu.
[7] Sunny (2018) Doctrine Of Aul and Radd: Notes for Legal Studies.