The doctrine of representation has no place in Islamic Law. How far this statement is true of the Hanafi and the Shia Law?

Question: The doctrine of representation has no place in Islamic Law. How far this statement is true of the Hanafi and the Shia Law? [BJS 1977]

Find the question and answer of Muslim Law only on Legal Bites. [The doctrine of representation has no place in Islamic Law. How far this statement is true of the Hanafi and the Shia Law?]

Answer

The general rule of inheritance in Muslim Law states that inheritance opens only after the death of a Muslim and no person can be an heir of a living person. Muslim law does not recognize the doctrine of representation and as such nearer heirs exclude the remoter heirs from inheritance. The distribution of the assets is per-capita under Sunni law which means an heir does not represent the branch from which he inherits.

The doctrine of representation states that if during the lifetime of an ancestor any of his or her legal heirs die, but the latter's heirs still survive then such heir shares become entitled to a share in the property as now they shall be representing their immediate generation. However, this doctrine's representation does not find its place in the Muslim Law of inheritance.

For example, A has two sons B and C. B has 2 children i.e. D and E and C also has two children F and G. During the lifetime of A if B dies, then in the event of the death of A only C shall be entitled to inherit A's property. B's children D and E shall not be entitled to any share in A's property. Between C and B's children D and E, C would totally exclude D and E from inheriting the property. That means the heirs of the predeceased son or daughter cannot claim a share.

Talking about Sunni law, the distribution of property is done on a per-capita basis and this doctrine doesn't find its place in this law. The doctrine of representation holds no place in Sunni law and it restricts the grandsons from inheriting from their grandfather in absence of the father. This constraint needs to be obliterated as it leaves the grandson with no possible inheritance from their own family. The grandsons are made reliant on other relatives due to this prejudiced restriction.

It is noteworthy that the Shia Law recognizes the principle of representation for the limited purpose of calculating the extent of the share of each person. Under Shia law, the distribution is done on the basis of per stirpes in which the quantum of share of each grandson will be given according to the branch that they represent. Since C and D represent pre-deceased son A, they are entitled to half of the estate. The other half will be given to B. Under Shia law, a limited application of this doctrine is permissible.

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