Every personal matter is governed by its respective personal law, e.g. Marriage, guardianship, adoption, conversion of religion, disposal of religious duties etc. and these personal laws also include laws relating to the inheritance of property from one generation to the next.
- Doctrine of Representation: –
Doctrine of representation is a well-known principle recognised by the Roman, English and Hindu laws of inheritance. Under the principle of representation, the son of a predeceased son represents his father for purposes of inheritance.
The doctrine of representation may be explained with the help of the diagram given below.
A has two sons B and C. B has got three sons D, E, F and C has a son G. During the life of A, his family members are his two sons (B and C), and four grandsons (D, E, F and G). Unfortunately, B dies before the death of A. Subsequently, when A also dies, the sole surviving members of the family of A are C and four grandsons, D, E, F and G. Under the doctrine of representation, D, E and F will represent their pre-deceased father В and would be entitled to inherit the properties of A in the same manner as В would have inherited, had he been alive at the time of A’s death.
Observation: – The doctrine applies where the heirs don’t have birth right in the property but the right arises at the time of death of the father.
- In Muslim law for inheritance and succession, the heirs don’t have any birth right in the property of the father but the right arises at the time of death of the father.
Sunni and Shia are two communities in India constituting most of the Muslim population of the country. So, we will be discussing the above mention doctrine in respect of the two groups mentioned above.
Sunni School of thought is further divided into four Sub-schools – Hanafi, Hanbali, Shafii, Maliki.
Shia School of thought is further divided into three Sub-schools – Athna Asharia, Ismailya, Zaidya.
For Sunni school of thought we will discuss the Hanafi law and for Shia School of thought we will discuss the Athna Asharia law because they both are the largest sect in their respective school of thoughts.
- Neither Sunni nor Shia school of thought recognises the Doctrine of representation.
But under Shia law doctrine of representation is already present, but in another shape, because in Shia law the property is distributed as per the Per-Strip distribution rule.
The following illustration will help us under stand the above rule: –
According to Per-strip distribution rule, the property gets distributed among the heirs according to the strip they belong to. Suppose A has two sons i.e. B and C. B has three children i.e. D, E and L. C has two children G and H. Suppose on the death of A his property’s worth is estimated to be about ₹900. B and C would be entitled to an equal share of ₹450 each i.e. distributed equally among strips.
In case if B dies in the life of A, and then after some years unfortunately A also dies then B’s children’s share shall be in following manner. D, E and L can inherit the property to the extent of B’s share or which is inherited by their respective strip. Their share shall be ₹450/3 each with their uncle C getting ₹450 as per the strip respectively.
In Sunni Law the property is distributed as per Per-capita distribution rule. The rule says, the property of the dead ancestor gets equally distributed among the heirs. The heir don’t represent the strip from which he inherits as like in Shia Law.
The following illustration will help us understand the per-capita rule and position of Sunni law in accordance with Doctrine of representation.
A has two sons B and C. B has got three sons D, E, F and C has a son G. Unfortunately, B dies in the life of A. Subsequently, when A also dies, D, E and F will not represent their pre-deceased father В and would not be entitled to inherit the properties of A in any manner as В would have inherited, had he been alive at the time of A’s death. And C will inherit the property of A being the sole surviving heir of A.
In case if any of the B’s children is a female then she will also inherit (according to prescribed share) with his uncle C because son’s daughter is classified as a Heir in Sunni law. And in per-capita rule, only the surviving heirs inherit the property without representing the strip or branch as like in per-strip distribution rule.
Contradictory principle: -Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to say, even if one of the children of B is a female, still, she can be denied of the share because of the rule that her uncle C is nearer in degree to A and she is remoter.
The Muslim jurists justify the reason for denying the right of representation on the ground that a person has not even an inchoate right to the property of his ancestor until the death of that ancestor.
Opinion: – Nonrecognition of principles of representation under the Muslim law of inheritance, seems to be unreasonable and harsh. It is dismayed that a son, whose father is dead, and who is totally dependent upon the grandfather, is unable to inherit the properties of his grandfather together with his uncle.
- Recommendation of Law Commission: – Orphaned Grandchildren – right of representation
The basic principle that the nearer in degree excludes the more remote‘ caused a problem when orphaned grandchildren who may have been completely dependent upon their grandparents stood excluded. The right of representation (children stepping into the shoes of the deceased parent) remedies this situation. Syria and Morocco allowed the grandson of the deceased to inherit what his father would have received or one-third of the estate, whichever is less. A similar provision for the granddaughter was still lacking. Egypt and Tunisia responded to the problem by allowing either the grandson or the grand daughter to receive up to one-third of the estate. The right of representation was adopted in Pakistan as a part of Muslim Family Laws Ordinance, 1961. There, the law created a representational scheme of all grandchildren inheriting per stirpes the inheritance their parents would have received.The Indonesian Supreme Court in 1994 nudged the inheritance laws of country in a more gender-neutral direction by holding that a male or a female child of the deceased could exclude collaterals. The court interpreted “walad” in Quran‘s verse 4:176 to mean both male and female children. This interpretation can buttress future gender-neutral reforms in Indonesia as well as other countries. Thus, it is suggested that taking from the Indonesian example, gender-neutrality be observed while classifying the heirs.
Reference:
- Muslim Law of Inheritance – LAKSHMI NARAYANA.B, II Addl.Senior Civil Judge, Kakinad.
- Government of India, Law Commission of India, Consultation Paper on Reform of Family Law, 31 August 2018.
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