A Muslim died leaving behind 5 grandchildren, three children G1, G2, G3, of his predeceased son Fazal, and two children....What is the quantum of share....

Question: A Muslim died leaving behind 5 grandchildren, three children G1, G2, G3, of his predeceased son Fazal, and two children G4 and G5 of his predeceased son Abdul. What is the quantum of share of each under the Sunni Law and Shia Law? [HJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. [A Muslim died leaving behind 5 grandchildren, three children G1, G2, G3, of his predeceased son Fazal, and two children G4 and G5 of his predeceased son Abdul. What is the quantum of share of each under the Sunni Law and Shia Law?]

Answer

Propositus

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Fazal’ Abdul’

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G1, G2, G3 G4, G5

a) Sunni Law

There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (3) Distant Kindred:

(1) "Sharers" are those who are entitled to a prescribed share of the inheritance;

(2) "Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied;

(3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries.

If both sons predeceased the propositus who died leaving three grandsons by one son and two by the other, then all the grandsons are heirs. In that case, if the principle of representation is to be applied for the purpose that is, for ascertaining the share of each grandson, the grandsons of one branch will have to divide into three what the grandsons of the other branch divide in half.

In the case supposed, Sunni law would not proceed upon any principle of representation in calculating the grandson’s shares. The grandsons would each take the same share, i.e., a share ascertained without recourse to the representation principle. The division among them would be per capita and not per stripes. Thus, by Sunni law, G1, G2, G3, G4, and G5 take per capita, that is, each takes 1/5 without reference to the shares which their respective fathers, if living, would have taken.

b) Shia Law

For the limited purpose of calculating the share of each heir—as distinct from the purpose of ascertaining the heirs—the Shia law accepts the principle of representation as a cardinal principle throughout. According to that principle, the descendants of a deceased son, if they are heirs, take the portion which he, if living, would have taken, and in that sense, represent the son.

So, predeceased sons Fazal and Abdul will have ½ share each which will be divided in their branches separately. In the first branch of Fazal, there are three sharers G1, G2, and G3, so 1/2 x 1/3 = 1/6 each will get 1/6 share.

In the second branch of predeceased son Abdul, there are two sharers G4 and G5, each will get 1/2 x ½ = 1/4 share.

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