What is the Rule of Representation under the Shia Law?

The Shia law recognises a limited principle of representation in calculating the shares of the sharers, as distinguished from the Sunni mode of calculating the shares.

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Distribution among Heirs of the First Class:

The persons who are entitled to succeed to the estate of a Shia Muslim are the heirs of the first class, along with the husband or wife, if any.

The first class of heirs comprises the father, mother, children, and in the absence of children, remote descendants. In the absence of any descendants, the parents will take the whole estate, the mother taking 1/3 as a sharer, and the father, the remaining, as a residuary.

Problem:

A Shia Muslim dies, leaving a wife, mother and father as his heirs. How will the estate devolve?

Ans:

The wife will get 1/4 share as sharer, the mother will get 1/3 share as sharer, and the father will get 5/12 share as residuary.

Note:

According to the Sunni law, when any one dies childless, leaving the husband or wife and the mother, the mother takes 1/3, after deducting the share of the husband or the wife, as the case may be. But according to Shia law, it is not so.

Doctrine of ‘Increase’:

The Hanafi doctrine of increase is not recognised in the Shia law, According to the Shia law, if the total of the shares of the sharers exceeds unity, the fraction in excess is always deducted from the shares of the following heirs, and of no other:

(i) The daughter or daughters; or

(ii) The sisters or sister, whether full or consanguine.

The Doctrine of “Return”:

If the deceased has left a mother, a father, and one daughter, and also:

(a) Two or more full consanguine brothers; or

(b) One such brother and two such sisters; or

(c) Four such sisters;

The brothers and sisters, though themselves excluded from inheritance as being heirs of the second class, prevent the mother from participating in the return, and the surplus reverts to the father and the daughter in the proportion of their respective shares. This is the only case in which the mother is excluded from the return.

Rules of Succession among Heirs of the Second Class:

Under Shia law, the heirs of the second class comprise grandparent’s h.I.s., and brothers and sisters and their descendant’s h.I.s. The rules of succession among the heirs of the second class are different, according as the surviving relations are —

(1) Grandparents h.I.s., without brothers and sisters or their descendant’s h.I.s.;

(2) Brothers and sisters or their descendants, without grandparents or remoter ancestors;

(3) Grandparents h.I.s., with brothers and sisters (or their descendants).

(1) If there are grandparents without brothers and sisters or their descendants, the paternal grandparents take 2/3, and divide it between them according to the rule of a double share to the male, and the maternal grandparents take 1/3, and divide it equally between them, so that the mother’s father takes 1/6 and the mother, 1/6.

(2) In the case of brothers and sisters without grandparents, the estate (minus the share of the husband or wife) will be distributed among them according to the same rules as in Hanafi law.

(3) In the case of grandparents with brothers and sisters, the estate (minus the share of the husband or wife) is to be distributed among grandparents and brothers and sisters, according to the following rules:

(i) A paternal grandfather counts as a full consanguine brother and a paternal grandmother as a full consanguine sister.

(ii) A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a uterine sister. Thereafter, the estate will be divided as among brothers and sisters of various kinds as under Hanafi law.

Distribution among Heirs of the Third Class:

If there are no heirs of the first or second class, the estate (minus the share of the husband or wife) devolves upon the heirs of the third class in the order given below:

1. Paternal and maternal uncles and aunts of the deceased; failing them, their descendants, h.I.s., the nearer in degree excluding the more remote.

2. Paternal and maternal uncles and aunts of the parents; failing them, their descendants h.I.s., the nearer in degree excluding the more remote.

3. Paternal and maternal uncles and aunts of the grandparents and their descendants h.I.s., in like manner, the nearer excluding the more remote.

Exception:

There is one exception to be noted among the heirs belonging to the third class, and that is where the only claimants are (i) the son of a paternal uncle and (ii) a consanguine paternal uncle. The son of the paternal uncle, though he is remoter in degree to the consanguine paternal uncle, excludes the latter, who is nearer in relationship to the deceased.

The reason is that the Shias are the followers of Ali, who was the paternal uncle’s son of the Prophet. At the time of his death, the Prophet had also left his consanguine paternal uncle named Abbas. The Shias maintain that, on the death of the Prophet, the succession to the Caliphate should have gone first to Ail, on the ground he was the nearest male heir of the Prophet.

But Ali could not be the nearest male heir, unless the son of the paternal uncle was entitled to succeed in preference to the consanguine paternal uncle of the Prophet, Abbas. Therefore, to uphold the claim of Ail, the Shias bad to resort to this rather illogical reasoning that the son of a full paternal uncle was entitled to succeed in preference of the consanguine paternal uncle, and this accounts for the exception.