Divya Govindan

FAMILY LAW II - BAL 465 4 BA LLB A

HINDU JOINT FAMILY (HJF) 23 Jan 2021

• Descent is traced through a common male ancestor
• Existence (alive/dead) of the ancestor is immaterial
• HJF can be continued even if discontinued at any point of time
• Usually share a common dwellin
• For HJF to come back into existence, there must be a common dwelling
• Male lineal descendants upto any generation along with their wives/widows constitute a
HJF
• 1st generation will also be viewed as part of the HJF
• There can be a joint family with no male members, as long as there is the possibility of
addition of any male member (thereby adding new members
Eg: A man along with his wife has a daughter and a son. After a while, both, the father and
the son die. The family is still a HFJ as the existence of the common ancestor is immaterial.
• Addition of male members can take place through adoptio
- Male lineal descent does not have to be biologica
- Unmarried daughters, widowed daughters in law, widowed daughters are members of
the HJF
• No legal entity distinct from the members
• A unit of members is headed by the Karta.
• Membership is by virtue of birth (except adoption and marriage) and not by virtue of any
agreement - in which case it becomes a composite family
- An illegitimate child would still be a member, but with limited rights
• Presumption of jointness until and unless proved otherwis
- In the eyes of the law, succession and inheritance are based on jointnes
Eg: Joint place of worship, joint income, joint sharing of resources, joint property that
cannot be claimed by any single member, but is collectively owne
- Existence of joint property is not the sole determining factor, however. There can be a
joint family with individuals owning property separately

COPARCENARY
The term implies joint ownership (interest) of property
Coparceners - Members who constitute a coparcenar
• Traditionally, only male members of the family were coparceners. More brothers = less
interest as the property had to be divided into smaller parts
(Interest = interest in the property
EG: A&B are brothers; C&D are A’s sons. Now, property would be divided among the 4 of
them equally. If A were to die, then the property is divided equally among the three
remaining coparceners, i.e B, C, D
• Share in the property is thus uctuating
• A coparcener can object to any alienation of property without his consent
• Community of interest and unity of possession
• No coparcener can claim sole ownership
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 • A person with unsound mind can also be a coparcener

Q: Can an illegitimate son be a coparcener

A: No, he can only be a member of the HJF but not a coparcener, based on the traditional
understanding

MITAKSHARA SCHOOL 29 Jan 2021

• The school owes it’s name to Vijnaneshwara’s commentary on the Yajnavalkya Smriti -
Mitakshara
• Widest application in India, except for Bengal and N.E India, where the Dayabhaga
school is applied
• Succession - principle of propinquity (nearness of blood relation)
• Secula
• Principle applies with a limitation - agnate is preferred over cognate, i.e male lineal
descendan
• Joint family - doctrine of son’s right as a coparcener by birth; rule of survivorship in
allocation of property and not inheritance (In inheritance, after the ancestor’s death, the
property goes to the children. Survivorship implies that even when A is alive, the
descendants get a share of the property, as all of them are coparceners by birth and not
upon the ancestor’s death) father forms the coparcenary along with surviving male
descendants. In coparcener survivorship, interest in property is uctuating as coparceners
can be added at any time
• Community of ownership and unity of possessio
• No alienation of property by a single coparcener - even the fathe
• Sub schools:
- Benare
- Mithil
- Bomba
- Madra

3 Generation Rule of Coparcenary

• The senior-most living male member of the family is the last holder of the property
• A coparcenary can exist upto three generations from the last holder, i.e senior most
male member of the family. (F>S>SS>SSS

DAYABHAGA SCHOO
• Finds signi cance from Jimutahavana’s work, Dayabhaga
• Sons do not have a right of ownership by birth. Inheritor is identi ed not by nearness of
blood relation or male lineal descent, but by the person who offers religious oblations
upon the ancestor’s death
• No rule of survivorship, instead inheritance is followed. Self acquired as well as
coparcenary properties devolve by succession
• Father remains the sole owner of all property as long as he is aliv

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 • Coparcenary comes into existence on the death of the father, as opposed to the birth of the
son in the mitakshara schoo
• Coparcenary need not be between ascendants and descendants - father and son,
grandfather and grandson, et
• Fixed and determinate shar
• No classi cation of property - all property is seen as obstructed heritage
• Females can be coparceners, but there is no coparcenary exclusively made of female
• There can be unity of possessio

KART
• Sui generis - unique concept to Indi
• Senior most male member of the famil
• One who is the decision taker, property holder, etc of the famil
• Does not owe his position to any agreement or appointmen
• Age, in rmity etc. no bar to the discharge of duties as a kart
• Junior male member can also act as a karta in exceptional cases, with the consensus of the
coparcener
• Powers of the Karta
- Power of management — managing the affairs of the family, property, nances,
individual affairs, etc
- Right to income earned by any members of the family, as the manager of the family’s
nance
- Right to representation — He represents the family in all transactions and social
obligations
- Power to enter into compromise
- Power to settle dispute
- Contracting debt
- Acknowledgement of debt
- Power of alienation of property**

CLASSIFICATION OF PROPERTY (MITAKSHARA

1. Sapratibandh daya (Obstructed heritage) - Property which is transferred by way of gift
or inherited by a person other than paternal ancestors; can be easily alienated and does
not belong to all coparceners, only to the person/persons to whom the property has been
transferre
2. Apratibandh daya (Unobstructed heritage) - Property inherited by a Hindu male from a
direct male (paternal) ancestor; cannot be easily alienated without the permission of
coparcener
3. Ancestral property - Apratibandh Day
4. Properties inherited from maternal grandfather - Venkayyamma v. Venkatrayyamma
(1902) 25 Mad. 67
5. Self acquired property (separate) - Explained by the Scripture

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 Gains From Learning (Katyayana

- By proving superior learnin
- Obtained from a pupil, of ciating as a priest, won by display of knowledge or debat
- Earnings through performance of arts/sports/skil
- Performance of sacri ce
- Recitation of vedas/scripture
- Acquired by science
The Hindu Gains of Learning Act, 1930 eliminates the distinction between specialized and
ordinary training/learning

Salary and Remuneration

1. Murughappa v. The Commissioner of Income Tax (1952) Mad 82
One of the coparceners was appointed the MD of a mill, and it was seen that the self-
acquired property and income is one’s own individual property unless that which was
acquired by utilising the portion of the joint family property to it’s detriment

2. Palaniappa v. Commr. of Income Tax (1968) SC 67

Madras HC held that the manager cannot gain a pecuniary advantage and claim it as his own
using the garb of personal services, while utilising family assets. SC overruled and held that
since no family funds were utilised by the Karta in obtaining personal remuneration, but
were only invested to obtain dividends, the salary belonged to him personally

3. Commr. Of Income Tax v. Kaloo Babu 1959 SC 128

Calcutta HC held that the property would be self acquired and be owned individually, but
the SC overruled that and stated that since joint family assets were used for acquiring a
concern, the managing directorship was part and parcel of the same scheme

4. Dhanwantry v. Commr. Of Income Tax (1968) SC 68

If money is earned out of using family assets, then it cannot be claimed privately, but if it
arises out of personal skill and learning, then it would be a separate income and not a part of
the family income

DIFFERENCE BETWEEN per stirpes AND per capita SUCCESSIO

Per stirpes - Dayabhaga

Where legal heirs earn property in equal shares, using the representation principle
Eg: (A) > (B - predeceased) 1/2 share of property > X 1/2 share (as b died, x gets share
> C 1/2 > Y (will get share when C dies
Here, X represents B and B’s share goes entirely to X upon his death, and C’s share will go
entirely to Y when he dies

Per capita - Mitakshar

Property is divided in terms of number of survivors at the time of succession, may/may not
be equal.

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 Eg: (A) > (B) 1/2 > X 1/

> C 1/3 > Y 1/
Here, at the time of A’s death, B and C were the sole survivors, thus it was divided in
1/2. Then, B and C got an heir but then B died, thus the property is now divided into
3 equal parts

MARUMAKATTAYAM FAMILY SYSTE

• Malabar, Travancore, Kochin area
• Matrilineal family syste
• Headed by Karnavaran, family unit was called the Tharwa
• Daughters are part of the Tharwad even after marriage, except when they choose to
separate and form their own Tharwad

HINDU SUCCESSION ACT, 195

- Provides for a uniform law of succession for all Hindus: the distinctions between the
Mitakshara and Dayabhaga schools have been done away with
- Mitaksharas’ dual mode of evolution of property: survivorship + preference to agnates
over cognates - has been done away with. Succession is either testamentary or intestate
- Deals with intestate (where the property owner dies without writing a will) as well as
testamentary succession
- Scheme of succession is purely secular, with no consideration to religious ef cacy in that
regar
- Amendment (5th May 2000) based on the 17th report of the law commission of india,
under the chairmanship of J. B P Jeewan Redd
- 2005 amendment has now given daughters equal status as sons as coparcener
- Amendment of 2005 has done away with the discriminatory provisions of S.23 and S.24

Meanings of Important Term

1. Descendants - Offspring and future generations
2. Ascendants - ancestors; earlier generation
3. Collaterals - descendants in parallel, eg. brother and sister, husband and wife, cousin
4. Agnates - a relation which is traced wholly through a male member of the family eg.
5. Cognates - a relation which is traced wholly through a female member of the family
6. De nitions under S.3 -

Section 6 - Devolution of Interest in Coparcenary Propert

Section 6(1
On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a
joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall
a) By birth become a coparcener in the same manner as a son

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 b) Have the same rights in the coparcenary property as she would have had if she were a
son
c) Be subject to the same liabilities wrt the coparcenary property as that of a son, and any
reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcene

Provided that nothing contained in this subsection shall affect invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken
place before 20th December, 2004

Section 6(2
Any property to which a female Hindu becomes entitled by virtue of 6(1) shall be held by
her with the incidents of the coparcenary ownership and shall be regarded s property
capable of being disposed by her by testamentary disposition

Section 6(3): Notional Partitio

Where a Hindu dies, his interest in the property of a Joint Hindu Family governed by
Mitakshara law, shall devolve by testamentary or intestate succession, and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place, and
- Daughter is allotted the same share as a so
- Share in property of the predeceased son/daughter is given to the child of the deceased
daughter/son as if the predeceased son/daughter were alive at the time of partition.
(RULE OF REPRESENTATION
eg. A and B are mitakshara coparcenaries, there is no partition of the property due to the
community of ownership and uctuation of interest, but after the 2005 amendment, this
element if taken away as succession is not based on survivorship and the property is divided
by deeming it to be partitioned

Section 6(4
Abolishes the son’s pious obligations to discharge the father’s/grandfather’s debts
Any alienation made in respect of such debts, the alienation shall be enforceable under the
rule of pious obligations to the extent it would have been if the amendment had not been
enacted

SUCCESSION TO HINDU MALE - S.8, 1

General Rules of Succession in the case of males - Section

The property of a Hindu male dying intestate (also known as the propositor) shall devolve
according to the provisions as follows -
a) Firstly, upon the heirs, being the relative speci ed in Class I of the Schedule
b) Secondly, if there is no heir in class I, then upon the heirs being the relative speci ed in
Class II of the Schedule
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 c) Thirdly, if there are no heirs of the deceased, then upon the agnates of the deceased; an
d) Lastly, if there is no agnate, then upon the cognates of the deceased
Here, there is no distinction between a natural born son/daughter and an adopted son/
daughter, however an illegitimate child would not qualify as a Class I heir. A posthumous
born child is also considered as an heir.
The son of an annulled voidable marriage, as well as the son of a void marriage, is eligible
to inherit the property of the father only, but not ancestral property belonging to past
generations. Step children are not recognised as Class I heirs

The daughter’s son/daughter is also a valid heir. However, the illegitimate son/daughter of a
mother would not be an heir to the ancestral property

Widow - A wife of a valid marriage which subsisted at the time of death of the propositor,
is a widow. The wife in a marriage which was void or rendered invalid, is not seen as a
widow. A divorced wife is not a widow as she is no more a wife at the time of death of the
propositor

Mother - Relationship of the propositor vis-a-vis the mother is undiluted irrespective of

other aspects such as legitimacy/illegitimacy of heir. Only step mothers are seen as a Class
II heir

CASE: ASHOK V RANI HEMBRO

The customs of a family belonging to the Santhal community allowed the son in law to be
considered as the adopted son, and thus a legitimate heir

Distribution of Property Among Class I Heirs - Section 1

Rule 1 - The intestate’s widow(s) shall take one share all together
Rule 2 - Surviving sons and daughters and the mother of the intestate shall each take one
shar
Rule 3 - Heirs in the branch of each pre-deceased son or daughter shall between them take
one share

Eg: (P) - >Widow 1 - 1/

> Widow 2 - 1/8
> (Son) - 1/4 >Widow - 1/8
> Son - 1/8 (By rule of representation
> Daughter - 1/
> Mother - 1/

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 Persons Disquali ed from Inheritance

Murderer disquali ed - Section 25

A person who commits murder or abets the commission of murder shall be disquali ed from
inheriting property of the person murdered, or any other property in furtherance of the
succession to which he/she committed or abetted the commission of the murder
Eg: A person dies, but the death does not fall under the de nition of murder as under the
IPC, and thus the heir responsible is not disquali ed from inheritance

Convert’s descendants disquali ed - Section 2

- This section is regarding the propositor’s conversion
- Children of the propositor who are born after the conversion are disquali ed as heirs to
ancestral property
- However, they are not disquali ed if they are Hindus at the time when succession opens

Succession when heir disquali ed - Section 27

If any person is disquali ed from inheritance of property, property shall devolve as if such
person did before the intestate.

Disease, defect, etc. not to disqualify - Section 2

If a person suffers from any disease, defect or deformity, they are not to be disquali ed from
inheriting any property

• Sections 23 and 24 were previously considered as grounds for disquali cation but have
now been repealed

Government Escheat/ Failure of heirs - Section 29

If the intestate has left no heir quali ed to succeed the property, such property shall devolve
on the government. Government shall take on the property subject to all the rights,
obligations and liabilities to which an heir would be subject.

GENERAL RULES OF SUCCESSION IN THE CASE OF FEMALE HINDUS - S.14, 15,1

Property of a Female Hindu to be her Absolute Property - Section 1

1. Any property possessed by a Female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof, and not a limited
owner.
• Property also includes Stridhan, immovable and movable property, etc
2. Nothing contained in sub-section (1) shall apply to any property acquired by way of gift
or will

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 General Rules of Succession - Section 1

1. The property of a female Hindu shall devolve according to the rules set out in S.16 -
(a) Firstly, upon the sons and daughters (including he children of any pre-deceased son or
daughter) and the husband
(b) Secondly, upon the heirs of the husband
(c) Thirdly, upon the mother and father
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother

2
(a) Any property inherited by a female Hindu from her father or mother shall devolve, in
the absence of son or daughter of the deceased (including children of any pre-deceased
son or daughter) not upon the heirs mentioned under sub-section (1), but upon the heirs
of the father.
(b) Any property inherited by a female Hindu from her husband or from her father-in-law
shall devolve, in the absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the heirs mentioned in sub-
section (1) but upon the heirs of the husband

Order of Succession & Manner of Distribution among heirs of a Female Hindu - Section 1
Rule 1: Among the heirs speci ed in S.15(1), those in one entry shall be preferred to those
in any succeeding entry, and those included in the same entry shall take simultaneously

Rule 2 (Rule of Representation): If any son or daughter had died before the intestate,
leaving his or her own children alive at the time of the intestate’s death, the children of such
son or daughter shall take between them the share which they (pre-deceased son/daughter)
would have taken if they were alive at the time of the intestate’s death

INHERITANCE UNDER MUSLIM LAW 3 Mar 2021

General Principles
1. Heritable property - no distinction between movable and immovable property;
ancestral or self-acquired property
2. Inheritance opens up only on the death of the propositor; vested inheritance (heir
apparent
3. No birthright is recognised - If A dies, and gifts his property to C, A’s son B
cannot challenge such a transfer even on the ground of undue in uenc
4. Transfer of spec successionis - not transferable; A>B - B transfers his spes
successionis to C, not a valid transfe

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 5. Rule of Representation - Hana law does not recognise representation, Shia

school recognises the rule of representatio
A > B >
> (C) >
> Z (If Shia, Y and Z would get the property after C’s death but if not,
then entire property goes to B.

Per stirpes (rule of representation) Per capita (rule of existing survivors)

A > (B) > X (1/2) A > (B) > X (1/3
> (C) > Y (1/4) > (C) > Y (1/3
> Z (1/4) > Z (1/3

6. Rule of Exclusio
Rule 1: A person related to the propositor through another is excluded and
cannot claim their property
Illustration - Y and X are brothers, and X dies. Y cannot claim property as he is
related to X through A, their father.

Rule 2: Nearer heir excludes the remoter hei

Illustration - Son excludes the grandson (exception to this rule is the daughter

Rule 3: Homicide- intentional death or not, a person responsible for another’s

death is excluded from inheritance, according to Hana law. In case of Shia
law, exclusion is only in cases where death was caused intentionally

Rule 4: Illegitimacy - An illegitimate child is disquali ed from inheriting from

mother and father, under Shia law. Under Hana law, illegitimate child can still
inherit from mother, but is disquali ed to inherit from father

Rule 5: Difference of Religion - An heir of a different religion is excluded from

inheriting
Customary rules of Exclusion: Exclusion of daughters (eg - Watan Act 1886,
Kashmir

Rule 6: Rule of Primogeniture- Eldest son inherits property; customarily

followed in Shia families of rank (eg. Nawabs

Rule 7: Rule of Vested Inheritance- Inheritance is vested, and property does not
vest until the death of the propositor.

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 Rule 8: Rule of Spes Successionis - per se not applied; the expectation of

inheritance cannot be transferred

7. Life Estate and Vested Remainder: Vested remainder is the person to whom the
property goes back after the life interest is extinguished.
Amrees - gift with a condition (a condition which interferes with the very thing
gifted, is to be rejected) (Gift = hiba
Illustration: A —> B (usufruct - life estate/interest, right to use the property except for
alienation/waste/damage
Here, B possesses life estate and A is the vested remainder, and in the event of A’s
death, A’s heir is the vested remainder

Case: HUMEEDA v. BUDLUN (1872) [hana law

Case: ABDUL GAFUR v. NIZAMMUDIN (1892). [hana law
In both these cases, life estate was declared not to be a part of muslim law generally

Case: NAWAZISH ALI KHAN v. ALI RAZA KHAN (1948) PC 134 [shia law
The Privy Council’s decision was applicable to both, Hana and Shia law.
Held - Is it to be construed what is gifted, if corpus of the gift is property, or interest
in the property (Was A gifting the property or the right to use/enjoy the property)?
There cannot be a condition that vitiates the corpus of the gift. If the gift is the right
to enjoy property, then life interest can be allowed in Muslim law, but not if the gift is
the right to the property itself

8. Persons entitled to Inherit

- Sharers (share is xed
- Residuaries (share is not xed; they take remaining portion after the sharers’ share
is deducted
- Distant kindred

INHERITANCE (Sunni/Hana Law

Possible Heirs
1. Sharer
Those entitled to a xed and prescribed share, their share is distributed rst among
the categories of heirs. There are 12 pre-determined sharers
• Male sharers - husband, father, true grandfather (paternal grandfather - FF, FFF),
uterine brothe

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• Female sharers - wife, mother, true grandmother (FM, MM, FMM), daughter, son’s
daughter, uterine sister, full sister, consanguine siste
Illustration
Father (1/6
FF (excluded by father
Mother (1/6
MM (excluded by mother
2 daughters (2/3
Son’s daughters (excluded by daughters
Here, it is seen that the nearer degree of relations excludes the remoter one. The
quantum of shares here is 1/3 to each daughter and 1/3 to both parents collectively
(1/6+1/6 = 2/6 = 1/3, 2/3 = 1/3 + 1/3

Doctrine of Increase (Aul) - When the deceased leaves behind no residuaries but only
sharers, and the property is relatively small in comparison to the sum total of the
shares claimed, the amount of shares allotted to each person is proportionately
decreased so as to satisfy the claims of shares by all parties.
Illustration
Husband - 1/
2 Full Sisters - 2/
Here, 1/2 of 2/3 now become 3/6 and 4/6 (by taking LCM), but total now becomes
7/6. So we add to the denominator and thus, “increase” the shares that are divided

Doctrine of Return (Radd) - Where property is more and claims are less, the property
surplus share is returned to the sharers in the same proportion of each sharer

2. Residuarie
They receive their claim after the sharers’ claims are satis ed. They receive the
remaining (entire residue) property after division of shares
All the male agnates except four females (daughter, son’s daughter, full sister,
consanguine sister) (who are normally sharers but become residuaries in a particular
scenario only, i.e when there is a counterpart male to them) are considered as
residuaries
When there is a male counterpart to the above females, share of the mail is twice that
of the female

Categories of Residuaries
A. Descendants - Son, Daughter (if there is any counterpart son) son’s son, son’s
daughter, etc. how low soeve
B. Ascendants - Father, true grandfather how high soeve
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 C. Descendants of father - full brother, full sister (she becomes a residuary if there is
a full brother counterpart to her who becomes a sharer, and also if the propositor
has a daughter, or his son’s daughter), consanguine brother, consanguine sister (if
she is there then residuary in the same manner as full sister. She becomes a
residuary if there is a consanguine brother counterpart to her who becomes a
sharer, and also if the propositor has a daughter, or his son’s daughter. If there is
no consanguine sister, then brother becomes a residuary), full brother’s son,
consanguine brother’s son, etc
D. Descendants of true grandfather how low soever - full paternal uncle,
consanguine paternal uncle, full paternal uncle’s son, consanguine paternal
uncle’s so
*how low soever = there is no differentiation in treatment of the lower descendants,
after a point, i.e son’s son, and further generations, they’re all seen as residuaries.
And any counterpart female is given half of what is given to the counterpart male
residuary

Sirajyyah’s Classi cation

• Residuaries in their right - All male agnate
• Residuaries in the right of another - All the heirs are females only (4
• Residuaries with others - full sisters and consanguine sister

3. Distant kindre
• Descendants - Daughter’s children and their descendants, children of son’s
daughter and their descendant
• Ascendants - False grandfather how high soever, false grandmother how high
soeve
• Descendants of parents - Full brother’s daughter, consanguine brother’s daughter,
uterine brother’s children, daughters of full brother’s sons how low soever,
daughters of consanguine brother’s sons how low soever, sister’s children and their
descendant
• Descendants of immediate grandparents (descendants of true grandparents are
preferred over descendants of false grandparents (mother intervenes)) - Full
paternal uncle’s daughters, etc

4. Unrelated heir
• Successors by contract
• Acknowledged kinsmen - Does not include a person who cannot be related through
the other person, i.e there has to be another person in between through whom the
relation comes into existence (eg: If someone is seen as an uncle, then they are are

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 acknowledged as your father’s brother, wherein the father is the middle person
through whom the relation is born.
• Universal legatee - A person to whom the entire property is given by a will.
Property can be given to the universal legatee only if there are no other heirs falling
into any of the pervious categories
• Government escheat - Properties for which there is no heir or truste

Cardinal principles of succession (in addition to general principles

- Distant kindred do not get anything if residuaries exis
- Distant kindred get property along with sharers only in one case - when husband ro
wife is left along with distant kindred - here, the distant kindred receive as
residuarie
- Whoever is related to the deceased through another person shall not inherit while
that person is livin
- Rule of propinquity - nearer relation excludes the remoter one eg. son excludes
grandso
- A person excluded excludes the others

INHERITANCE (Shia Law

Classi cation of Heir

1. Heirs by consanguinity (Nasab
• Class I - i. Parent
ii. Children and other lineal descendant
• Class II - i. Grandparents (true or false) how high soeve
ii. Brothers and sisters and their lineal descendant
• Class III - i. Paternal uncles and aunts of the deceased and of his parents and
grandparents how high soever, and their descendants how low soever
2. Heirs by a special cause (Sabab
i. By marriage - husband, wif
ii. By special relationship (wala) - spiritual head, etc. not recognised in Indi

Cardinal Rules of Inheritance under Shia La

Rule 1 - The heirs in a particular class will exclude entirely the heirs of the
subsequent following classes, i.e Class I heirs would entirely exclude the heirs of
Class II and III from inheritance.

Rule 2 - When there are heirs present in both subcategories within a single class, they
both inherit simultaneously, i.e Parents and Children, who belong to different
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 categories within Class I heirs, will inherit simultaneously, parents don’t exclude
children, i.e no exclusion of heirs occurs within a class

The only rule of exclusion is that the remoter heir will be excluded by the nearer heir.

Rule 3 - Rule of distribution is per stirpes and not per capita.

Rule 4 - Exception to Exclusion: Husband and wife are never excluded from
inheritance, and inherit simultaneously along with the heirs that are inheriting under
any of the classes, i.e Spouse inherits along with Class I, II or III depending on which
class of heirs is inheriting the property of the deceased, no class excludes husband
and wife from inheriting.

Illustrations
1. Daughter’s son, Father’s mother, Father’s brothe
Here, whole property goes to daughter’s son (Class I heir as lineal descendant of
child of deceased), and the class III heirs get excluded
2. Brother’s daughter, Paternal uncl
Here, brother’s daughter inherits the property and excludes paternal uncle from
inheriting (Class II heir excludes Class III heir

Rule 5 - Rule of Representation: Immediate heirs’ shares are satis ed rst, for eg. if
son is alive then son’s son gets excluded. Distribution is done per stirpes and not per
capita

Eg: (A) > (B) >

>
> (C ) >
Here, X and Y will get the share that B was supposed to get, and Z will get the share
which C was supposed to

Rule 6 - There are only 9 sharers listed under Shia law. All those who are not sharers
are residuaries, and depending on their relationship with the deceased propositor, they
can be put into any of the classes of heirs. For eg: full brother and uncle are both
unlisted and are thus residuaries, and if they both exist then full brother goes into
class II and uncle in class III, thus brother excludes uncle from inheritance

Father, daughter, full sister and consanguine sister can be residuaries depending on
the situatio

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 Rule 7 - Descendants of sharers take as sharers and descendants of residuaries take

as residuary.

Eg: (A)> ((Full brother)) > Daughter 5/6 (residuary)

> ((Uterine brother)) > Son 1/6 - xed koranic share (sharer
Here, since the sharer gets only a xed share as under law (1/6 to uterine brother), the
rest of the property goes to the remaining heirs, which is 5/6 to the residuary
- Residuary’s share depends on the number of sharers and amount of shares allotted
to them, as they inherit the remaining share that is left over after the sharers inherit
their xed predetermined share of the property.

* Doctrine of Increase (Aul

If the total share of sharers exceeds the heritable property, the share of all the sharers
is not proportionally reduced, but it is always deducted from the share of the
following
- Daughter(s) and/or full or consanguine sister(s
Eg: Husband, 2 full sisters - 1/2 + 1/3+ 1/3 = 1/2 + 2/3 => 1/2+1/2 =
(Share is deducted from the share of the 2 full sisters

* Doctrine of Return (Radd

Under Shia law, only the absence of residuaries in a particular class is suf cient to
apply the doctrine of retur
Eg: In class I, after the sharers are allotted their own shares, and there are no
residuaries left to distribute the remaining property to, the surplus property is not
given to the lower class but is returned and redistributed among the Class I sharers
Exceptions - Husband, wife are not entitled to return if there are other sharers, i.e
when doctrine of return is applied, the surplus property is distributed among the rest
of the sharers except for husband and wife.

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