5 Empirical Setting - Land Administration and Legislations with Local Governance
5.7 Law of Inheritance
5.7.2 Fixed Percentage Shares
Before the explanation of fixed percentage shares in Islamic Shari’a,34 some terms should be clarified, for example, sharer and residuary. Sharers are those heirs who will receive their allotted share according to their entitlements, and residuaries are those who will receive the residue according to their entitlement as per the given rules as (1) remote relations are excluded by the nearer, and if no near relation is available, the residuaries will receive all estate of the deceased. (2) Sometimes, the ratio of double for a son in comparison with a daughter will also generate some residues. Shares from deceased males and females are different for some heirs, but the share of the children is the same from both parental sides. All the details of this sharing are explained below.
Distribution of inheritance between first level heirs for a deceased male: After the performance of his necessary duties, his property will be distributed among his first level heirs, such that his wife will receive one eighth of the remaining property in the case of having children, whereas if there are no entitled descendents,35 she will receive one fourth of the remaining property. If the deceased has only one daughter and no son, then that daughter will receive half of his remaining assets, but in the case of two or more daughters, the shares will be two thirds for all, which will be equally divided between them. If the departed is blessed with sons and daughters, then every brother will get double the share of his sister.
In the case of parents, the mother is the direct sharer of the son’s property and will receive one sixth from this property, if entitled descendents are present. If the deceased has no children, then here again two situations will arise; in the first situation, if no other relation
34 Islamic law
35 Entitled descendants: sons and daughters
such as spouse, father, brother, and sister of the died person exist, then the mother will receive one third of his property, and if any of these relations is alive, then the mother will get one third of the residue. For example, if the wife of the deceased is alive and has no child, then according to the law, the shares of both the widow and the mother are given below in Equation 5.1 and 5.2.
Share of the widow = 1/4 5.1
Share of the mother = 1/3 of the residue (1/3 of the 3/4) = 1/4 5.2 The father’s position as an heir has three characteristics: (1) as a sharer, (2) as a residuary, (3) as a sharer plus residuary. In the presence of other entitled descendents, the father will be a sharer and will receive one sixth of the deceased's property, but if he has no grandchildren, then he can take the residue, and in the presence of female descendents, he will first take his prescribed share of one sixth and then will take the residue.
Figure 5.7 (a) explains the situation of all the first level sharers with their fixed shares;
similarly, part b of Figure 5.7 depicts a scenario in which no entitled descendents exist, and the father and mother inherit as residuaries. Figure 5.7 (c) indicates the situation in which the father acts as both sharer and residuary in the presence of the only female daughter of the deceased.
Figure 5.6 (a): Distribution of Assets among First Level Sharers Source: Own Presentation
Wife 1/8
Sharers
Son 2/3
Daughter 1/3
Mother 1/6
Father 1/6
Figure 5.6 (b): Distribution of Assets with the Wife as a Sharer and the Mother and Father both as Residuaries
Source: Own Presentation
Figure 5.6 (c): Distribution of Assets where the Father acts as a Sharer and Residuary Source: Own Presentation
In the case of a deceased male, the distribution of property to the heirs of the next levels:
According to Inheritance Law, the secondary and next level heirs in the queue are entitled to inherit only in the absence of the particular primary heirs or heirs from the previous level; for example, if the son has died from the group of primary heirs, then his children are entitled to be sharers, and the property will be distributed according to the rules explained above. If the son of an excluded son is present among his entitled descendents, then his only daughter will get half of his share, whereas two daughters will get two thirds, and a son will get double his sister’s share as explained in Figure 5.8. The daughter’s children as previously explained are not eligible for the property of grandparents, but they can receive something as a gift or as part of the will. The only possibility of them receiving a share of the two thirds portion of the grandparents is if there are no sharers or residuaries, which is very rare.
Grandparents represent the next level in the queue after parents and are eligible only if the father and mother no longer exist. The grandmother may be father’s mother or mother’s
mother of the deceased and cannot be excluded from the list of heirs in the absence of the father or mother and will receive one sixth of his property as a sharer. Similarly, the grandfather will receive the same proportion, according to the same rules, that the father of the deceased receives, in the absence of a father or mother.36
Figure 5.7 (a): Distribution of Assets where a Father Does not Exist and the Share of the Father Transfers to the Grandparents as Fixed Sharers
Source: Own Presentation
Figure 5.7 (b): Grandmother Receives a Fixed Share and Grandfather Receives the Residue in the Absence of Descendants
Source: Own Presentation
36 Grandparents of father in case of missing father and grandparents of mother in case of missing mother
Wife 1/8
Sharers
Son 1/2
Daughter 1/4
Mother 1/6
Grandmother
1/6 Grandfather
1/6
Wife 1/4
Sharers and Residuary
Mother 1/4
Grandmother
1/6 Grandfather
(Residue)
Figure 5.7 (c): Grandmother Receives a Fixed Share and Grandfather Receives a Presubscribed Share plus the Residue in the Absence of Descendants
Source: Own Presentation
Similarly, if the deceased has no entitled descendent or ascendant at the primary level,37 then the property passes to secondary level heirs, which are brothers and sisters, who will receive shares only in the case if the father and sons of the deceased have previously died or not existed. Brothers and sisters are also categorized in three different groups, (1) full brothers and sisters, from the same mother and father, (2) uterine brothers and sisters, from the same mother but different father(s), (3) consanguine brothers and sisters, from the same father but different mother(s). Shares of property in all these three cases are different, as given below.
In the case of distribution to full brothers and sisters, if there are no female descendants, and the deceased has only one sister, then she will get half of his property. In the case of more than one sister, then they all get two thirds collectively, and if some brothers also existed but are deceased, then there will be a ratio of two to one between the brothers' and sisters’ shares, as shown in Figure 5.9. If the departed is the brother of a male only, then in the case where no male entitled descendants exit, he will receive one sixth of his property; similarly, if there is only a sister, then she can also claim for a one sixth portion in the same case, but if the deceased has brothers and sisters, then they can have one third of the remaining property, after paying the necessary duties of the deceased. This case is shown in Figure 5.10.
37 Real son and father are the primary level descendent and ascendant respectively.
Wife 1/8
Sharers and Residuary
Daughter 1/4
Mother 1/6
Grandmother
1/6 Grandfather
(1/6+Residue)
Figure 5.8: Share of Full Brothers and Sisters in the Case of no Entitled Descendants and Ascendants
Source: Own Presentation
Figure 5.9: Share of Full Brothers and Sisters in Case of no Male Entitled Descendants and Ascendants
Source: Own Presentation
* TBS = total number of brothers and sisters
The distribution among consanguine brothers and sisters is the same as that for full brothers and sisters, but in the case of uterine relations, if the deceased has only one brother or sister, his/her share will be one sixth, if the deceased has left no children. In the case of a daughter of
Wife 1/8
Sharers and Residuary
Daughter 1/4
Mother 1/6
Sisters
1/3(TBS)* Brothers
1/3(TBS) Wife
1/4
Sharers and Residuary
Mother 1/4
Brothers
1/2 Sister
1/4
the dead man, his brothers and sisters will receive one third of his property, providing that he has no son and father.
Similarly, uncles and aunts are the next following heirs after the grandfather, just as the brothers and sister are next following to the parents, and any nephews and nieces are next following to the brothers and sisters, and so on. They can claim only in the absence of particular heirs. If anyone above them in the queue is available, then the property cannot be transferred to them.
If the deceased is female, then most of the distribution is the same, but some shares are different; for example, her spouse (husband) is the only sharer who receives half of her property, if she has no child, whereas in the case of children, his share is reduced to one fourth portion of his wife’s property. Another difference is between the shares of the children, as a female can allot fixed share of her property as per rule of law to all of her children, even if their fathers are different. The third point of difference is in the share of brothers and sisters;
in the case of only a single brother as an heir and no entitled descendant exists, then her brother claim for all of her property.
According to Pakistani Inheritance Law, one category of distant kindred is defined that is neither a sharer nor a residuary. These are those heirs who are entitled to the inheritance, providing that no sharer or residuary exists; for example, the daughter’s children and their children and the granddaughters' children. Sometimes, the owner gives them some property during their life as a gift or leaves some share for them as a part of his will. According to the registration act, 1967, neither the gift nor the will are documents that need to be registered;
indeed, most people make an oral will, which causes problems after their death, at the time of the distribution of property, and conflicts arise.