In relation to the Islamic rules of inheritance, write short notes on the following:- 1. Doctrine of Representation in Islamic Law. 2. Primary and subsidiary classes of heirs in Hanafi Law of inheritance.

Question: In relation to the Islamic rules of inheritance, write short notes on the following:- [Punj JS 2013]
1. Doctrine of Representation in Islamic Law.
2. Primary and subsidiary classes of heirs in Hanafi Law of inheritance.

Find the question and answer of Muslim Law only on Legal Bites. [In relation to the Islamic rules of inheritance, write short notes on the following:- [Punj JS 2013] 1. Doctrine of Representation in Islamic Law. 2. Primary and subsidiary classes of heirs in Hanafi Law of inheritance.]

Answer

1. Doctrine of Representation in Islamic Law.

The doctrine of representation means that the descendants of a deceased son if they are heirs, take the portion which he (the deceased son) if living, would have taken, and in that sense represents the son.

Thus if A had two sons B and C who are entitled to 1/2 and 1/2 shares and B dies during the lifetime of A leaving three sons S-1, S-2 and S-3 then these three sons would represent B and under this doctrine, would take among themselves that half share to which B was entitled, i.e. each of the sons would get 1/2 x 1/3 = 1/6 while the other 1/2 will go C. Here S-1, S-2 and S-3 represent B.

Not recognised in Sunni Law

According to the Sunni Law, the expectant right of an heir-presumptive does not pass to his heirs. On the death of the heir-presumptive in the lifetime of the ancestor, the heir of such an heir-presumptive has no right to claim his share in the property of the ancestor as representing the right of the heir.

Illustration: A, a Sunni has two sons, B and C. B dies in the lifetime of A leaving a son D. A then dies leaving his son C and his grandson D. The whole of A's property will pass to C to the entire exclusion of D. It is not open to D to claim share as the representative of B as it was held in the case of Moola Cossim v. Moola Abdul, (1905)] wherein, the Privy Council observed as follow:

"It is a well-known principle of Mohammedan Law that if any of the children of a man dies before the opening of the succession to his estate, leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts."

The principle of representation is also applied in determining the question of the share of each heir but this aspect of it is also not recognized under Sunni Law.

The Shia Law also accepts the principle of representation as a cardinal principle throughout for the limited purpose of calculating the shares of each heir. Thus, the descendants of a deceased son, if they are heirs, take the share that he would have taken, if he were living at the time when the inheritance opens and in that sense represent the son. In the same limited sense, the descendants of a daughter represent the daughter.

2. Primary and subsidiary classes of heirs in Hanafi Law of inheritance

Under the Hanafi School, the heirs are classified into seven categories: Primary and Subsidiary classes:

Primary Classes

1. Quranic heirs dhawul-furud(Sharers)

2. Agnatic heirsasabat(Residuaries)

3. Uterine Heirs dhawul-arham (Distant Kindred)

Subsidiary Classes

1. The Successor by contract

2. The Acknowledged kinsman

3. The Sole Legatee

4. The State, by Escheat

1. The Primary Class

This class includes legal heirs which are directly related to the person through blood. The Husband and wife are an exception because they are related through marriage.

This class is further divided into 3 types-

(a) Sharers or Quranic Heirs

The Sharers are given preference over the others in process of inheritance and their respective shares are given in the Quran due to which no human intervention can deny them their share.

12 relations fall under the category of Sharers in Muslim law:

1. Husband

2. Wife

3. Daughter

4. Daughter of a son (or a son’s son or a son’s son’s son)

5. Father

6. Paternal grandfather

7. Mother

8. Grandmother on the side of the males

9. Full sister

10. Consanguine sister

11. Uterine sister

12. Uterine brother

The share of different sharers varies according to different scenarios or conditions. For Example, the wife of the deceased person is entitled to get 1/4th of the share in the property if there are no lineal descendants and 1/8th of the share in the property otherwise.

Female legal heirs are given about half a share as compared to the inherited property by the male legal heir in their inherited property. The reasoning behind this is that males in Muslim Law are given more responsibility and financial obligation than females. Also, there is no rule of Primogeniture under Muslim Law.

(b) Residuary Class or Agnatic Heirs

Residuary Heirs are also known as Agnatic Heirs because the nearest relation to the deceased is seen through male relations. Agnatic heirs inherit the property only after Sharers have acquired their respective shares. They do not have a written rule for the share, and a share in the property is not guaranteed for them but a chance of luck only.

(c) Distant Kindred or Uterine Heirs

These heirs can only inherit the property if there are no sharers or Agnatic Heirs of the deceased i.e. the property cannot be inherited by these heirs if any sharer or agnatic heir of the deceased is present.

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