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Made By: Nidhi Navneet 2nd year (4th sem) ROLL No.570 B.A.LL.B. (Hons)
ACKNOWLEDGEMENT I am feeling highly elated to work on the case law Critical Study between Hanafi and Shia Law as to Succession under the guidance of the Faculty of Family law II, Mr. Shaiwal Satyarthy. I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.
At finally yet importantly I would like to thank my parents for the financial support.
CONTENTS
RESEARCH METHODOLOGY ........................................................................................3 INTRODUCTION ...............................................................................................................4 GENERAL PRINCIPLES OF SUCCESSION ....................................................................6 Customary Principles of Succession ................................................................................6 Islamic Principles of Succession ......................................................................................6 The Hanafi Law: General Principles ...........................................................................7 Ithana Asharia Law: General Principles ......................................................................8 HANAFI LAW OF SUCCESSION .....................................................................................9 1. 2. 3. 4. 5. Heirs under Hanafi (Sunni) Law ...............................................................................9 Distribution of Assets among the Sharers and Residuaries ....................................11 Residuaries: Distribution of Assets .........................................................................13 Distribution of Assets among the Distant Kindred .................................................14 Doctrines of Aul (increases) and Radd (return) ......................................................15
SHIA LAW OF SUCCESSION ........................................................................................16 The Shia Scheme of Heirs ..............................................................................................16 Distribution of Assets ................................................................................................17 1. Distribution of Assets among Class I heirs: ...............................................................18 2. Distribution of Assets among Class II heirs:..............................................................19 3. Distribution of Assets among Class III Heirs: ...........................................................20 4. Rules of Distribution of Assets among the Uncles and Aunts: ..................................21 5. Distribution of Assets among the descendants of Uncles and Aunts: ........................21 6. Doctrines of Aul (increase) and Radd (return): ..........................................................21 DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS ................22 Sunni and Shia interpretation of Koran- distinction between : ......................................23 Points of difference between Sunni and Shia Law as to succession ..............................23 CONCLUSION ..................................................................................................................25 BIBLIOGRAPHY ..............................................................................................................26
Critical Study between Hanafi & Shia Law as to Succession RESEARCH METHODOLOGY Research Methodology
The project is basically based on the doctrinal method of research as no field work is done on this topic.
Sources of Data
The whole project is made with the use of secondary source. The following secondary sources of data have been used in the project1. Books 2. Websites
Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this research paper.
Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this topic, the researcher is providing the descriptions of the existing facts.
Dr. Poonam Pradhan Saxena, Family Law Lectures II, (3rd ed), Lexis Nexis Butterworths Wadhwa at page 505. 2 Abdul Rashid v. Sirajuddin, 1933 All 206.
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Critical Study between Hanafi & Shia Law as to Succession GENERAL PRINCIPLES OF SUCCESSION
The general principles of Succession can be broadly divided in Customary Principles which are age old principles based on customs followed by the Arabs even prior to the revelations of Quran, and in Islamic Principles which are the newer laws based on the Quranic principles. The general principles can again be divided into the general principles of the two branches of Muslim Law, i.e., Shia and Sunni Laws represented by the Ithna Asharai Sect of Shia and Hanafi Sect of Sunni laws.
Critical Study between Hanafi & Shia Law as to Succession HANAFI LAW OF SUCCESSION
Under any law of intestate succession, two questions that arise are: (i) who are the heirs of the deceased, and (ii) to what share the heirs are entitled. Muslim lawgivers have gone into details in laying down the categories of the persons who are entitled to participate in the Succession, and the respective shares to which each category of heirs are entitled to receive.
Daughter, sons daughter, sons sons daughter, full sister and consanguine sister, although being among the sharers do not take their specified shares if a residuary equal rank co-exists, and thus they become residuaries and are known as Koranic Residuaries with another. The Residuaries are classified into: (i) descendants, [son and sons son, how low so ever] (ii) Ascendants [father and true grandfather] and (iii) collaterals which are descendants of father [full brother, full sister, consanguine brother or sister, full brothers son or sons son, consanguine brother son or sons son] and that of a true grandfather [full or consanguine paternal uncles, full or consanguine paternal uncles son or sons son].5 Distant kindred are all those blood relations of the deceased who have not found a place either among the sharers or residuaries, there are: (a) female agnates, and (b) cognates, both males and females. For the purpose of distribution of assets among them, the better classification of distant kindred would be into: (i) descendents, (ii) ascendants, and (iii) collaterals. Under the category of descendants, daughter's children and their descendants how low so ever; son's daughter's children, how low so ever and their descendants without any limit are included. Under the category of Ascendants, false grandfather and grandmother how high so ever are to be included. The collaterals are further divided into descendants of parents [including full and consanguine brother's daughters and uterine brother's children; daughters of full brother's and consanguine brothers sons, and children of sisters (full consanguine and uterine)] and
descendants of immediate grandparents [including full and consanguine paternal uncle's daughters, daughters of their sons, uterine paternal uncles and their (of all of the above) children; paternal aunts (full, consanguine or uterine), Maternal uncle and Aunts and their children]. The number of collaterals is limitless, all the descendants of all the ascendants, without any limit as to degrees, are included.
Paras Diwan, Muslim Law in India, Allahabad law agency, at page 223 -24.
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Fyzee, 381.
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There is a conflict of opinion among the Shia authorities in this regard. The Sharya-ul-Islam holds that consanguine sister is not entitled to return, while Kafi is of the opinion that she is.
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Murtaza Hussain Khan v. Mohammad Ali Khan, ILR 33 All 532 (PC).
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CONCLUSION
It can finally be concluded after taking in view the laws of succession in the two branches of Muslim Law are different in many aspects. Although both Shia law and Sunni law provides same kinds of rules for succession of property by the heirs but when these rules are delat in detail, various differences are there. There is a fundamental divergence between the Sunni and the Shia schemes of succession. Sunni law is essentially a system of inheritance by male agnate relatives or aabahi.e., relatives who, if they are more than one degree removed from the deceased, trace their connection with him through male links. This agnatic system is mitigated by allowing the surviving spouse and a limited number of females and nonagnatesthe daughter; sons daughter; mother; grandmother; germane, consanguine, and uterine sisters; and uterine brotherto inherit a fixed fractional portion of the estate in suitable circumstances. But the females among these relatives only take half the share of the male relative of the same class, degree, and blood tie, and none of them excludes from inheritance any male agnate, however remote. No other female or non-agnatic relative has any right of inheritance in the presence of a male agnate. Shia law rejects the criterion of the agnatic tie and regards both the maternal and paternal connections as equally strong grounds of inheritance. In the Shia system the surviving spouse always inherits a fixed portion, as in Sunni law, but all other relatives, including females and non-agnates, are divided into three classes: (1) parents and lineal descendants; (2) grandparents, brothers and sisters, and their issue; (3) uncles and aunts
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BIBLIOGRAPHY
Referred Books : Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3rd Edition, 2011, lexis Nexis Butterworths Wadhwa. Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law Agency, law Publishers. Mulla, I., Mulla on Mohammedan Law, 1st edition, 2007, Dwivedi Law Agency, Allahabad. Ali, Ameer, commentaries on Mohammedan Law, Revised Enlarged 5th edition, 2007, Hind Publishing House.
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