Discuss and illustrate the dictum, 'the nearer in degree excludes the more remote', in relation to both the Shia and Sunni Law of Inheritance.

Question: Discuss and illustrate the dictum, 'the nearer in degree excludes the more remote', in relation to both the Shia and Sunni Law of Inheritance. [BJS 1978]

Find the question and answer of Muslim Law only on Legal Bites. [Discuss and illustrate the dictum, 'the nearer in degree excludes the more remote', in relation to both the Shia and Sunni Law of Inheritance.]

Answer

The rule propounded by Sunni law that the nearest in degree will exclude those who are linked to a deceased by more remote relations is shared by Shia law of inheritance. But the implications of this rule are quite different in both systems.

I. Hanafi (Sunni) Law of Inheritance

Hanafi law of inheritance only focuses on relatives who have descended from a male member who may be in relation to the deceased person. Each heir holds the property separately, holding a definite share in the estate.

The per capita distribution is majorly used by the Hanafi law. According to this method, the estate is distributed equally between the heirs. Therefore, the share that a person gets depends on the number of heirs that exist. It can be seen as a less complicated and simplified way of distributing property.

II. Shia Law of inheritance

The Shia Law divides heirs into two groups – by blood relations (consanguinity) and by marriage (affinity). The heirs by consanguinity are also termed as heirs by Nasab, while the heirs by affinity are heirs by Sabab.

Based on blood relations a further classification is drawn into three classes. Here the first shall exclude the second from inheritance and the second exclude the third.

I First class

• Parents

• Children and other lineal descendants

II Second class

• Grandparents

• Brothers and sisters and their descendants

III Third Class

• Paternal, and

• maternal, uncles and aunts,

• and their children

So, for instance, a true grandfather of remoter degree cannot be excluded by any grandmother of nearer degree in Sunni law. It means that the grandfather's father cannot be excluded by the grandmother who is located a degree nearer to the deceased. In Shia law, the grandmother excludes the grandfather's father. The reason for this difference is that Shia law does not differentiate between males and females in excluding the remoter relations: female relatives are as effective in this regard as male relatives are in Sunni law.

According to Sunni law, all grandsons will inherit from the estate of their grandparent as per capita: which implies that it will not be taken into account how many out of those grandsons have descended from a particular predeceased heir. So, each grandson will inherit 1/3 of the estate as if they are individually entitled to inheritance.

According to Shia law, the distribution is carried out per stripes (as per stocks): which implies that each son would have his individual share had he been alive which will be further divided among his legal heirs. So, the descendants of predeceased sons are not regarded as individually qualified legal heirs; they merely represent their parents. They will only have what their parents would have inherited had they been alive. In the above example, two grandsons are linked to the deceased grandparent by the same father, so their share will be half of that of the third grandson as he is the only heir of his father whom he represents.

In Sunni law, the daughter will have half of the estate while the rest will be inherited by the grandson as a residuary. The situation will be different in Shia law because of the variant application of the rule the nearer in degree will exclude the remoter in degree. The daughter is located a degree nearer to the deceased as compared to the grandson. So, she will have the entire estate: the first half as a sharer while another half under the principle of Radd/return.

As far as the class 3 of legal heirs in Shia law is concerned which includes paternal and maternal uncles and aunts and their descendants, there is no preference on the basis that someone is linked to a deceased from the paternal or maternal side. As long as the deceased's heirs are situated in the same degree of relationship, they will have a share in the inheritance irrespective of their gender and the origin of their relationship to the deceased. For instance, a person dies leaving behind one paternal uncle and another maternal uncle. Both will be entitled to inheritance and the paternal uncle will not have any preference over the maternal uncle, though their shares will not be the same.

But if the same situation is solved according to Sunni law, the paternal uncle will inherit the entire estate as a residuary, while the maternal uncle will not have any share in the estate as he is regarded as a distant kindred.

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