How the allotment of shares is made among collaterals under the Muslim Law of inheritance.

Question: How the allotment of shares is made among collaterals under the Muslim Law of inheritance. [BJS 1986]

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Answer

Collaterals are descendants in the parallel lines from the common ancestor or ancestress. Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters, paternal aunts and uncles are agnate collaterals. Maternal uncles, aunts, uterine brothers and sisters are cognate, collaterals.

The collaterals may be divided as under:

(a) Descendants of parents. Under this head will fall:

(i) full brother's daughters, and their descendants,

(ii) consanguine brother's daughter, and their descendants,

(iii) uterine brother's children and their descendants,

(iv) daughters of full brother's sons how low soever, and their descendants,

(v) daughters of consanguine brother's sons how low soever, and their descendants, and

(vi) children of sisters (full consanguine and uterine how low so ever and their descendants).

(b) Descendants of immediate grandparents (true or false). Under this head will fall:

(i) full paternal uncle's daughters and their descendants,

(ii) Consanguine paternal uncle's daughters and their descendants,

(i) (Ill) uterine paternal uncles and their children and their descendants,

(iii) daughters of full paternal uncle's sons how low soever and their descendants,

(iv) daughters of consanguine paternal uncle's sons how low so ever and their descendants,

(v) paternal aunts (full, consanguine or uterine) and their children and their descendants,

(vi) Maternal uncles and aunts and their children and their descendants,

(c) The descendants of remoter grandparents how high soever (true or false), in the same order and like manner as the descendants, of all, immediate grandparents. The number of collaterals is limitless, all the descendants of all the ascendants, without any limit as to degrees, are included.

In the first come nephews and nieces and their descendants. In the second category fall Uncles and aunts and their descendants. In the third category are descendants of the remoter ancestors" the great grandparents, how high soever.

The, collaterals comprise a vast and complicated group of heirs. In actual practice they succeed seldom. Among the collatera1s these are the following rules of exclusion:

(i) A claimant nearer in degree excludes the remoter; and

(ii) Among the claimants of equal proximity, the children of residuaries are preferred to .those of distant kindred.

(iii) Among the claimants of the same degree and not excluded by virtue of Rule (ii)(a) the descendants of full brother exclude those of consanguine brother and sister; (b) but the descendants of full sisters do not exclude the descendants of consanguine brother and sister; (c) the descendants of the uterine brother and sister do not exclude the descendants. of consanguine brother and sister (after allotting 'shares to the descendants of full sister and to the descendants of the uterine sister and brother.' the residue, If any, goes to the descendants of consanguine brother and sister); and (d) the descendants of uterine brother and sister are not excluded, by the descendants of, either the full brothers and sisters or by consanguine brother and sister, they inherit along them.

If a Muslim dies leaving a son and a grandson (son's son or a son from a predeceased son), then son alone will inherit, and the grandson will be excluded, though both are residuaries. Similarly, if a Muslim dies leaving behind a father and a true grandfather, then the father alone will inherit and the true grandfather will be excluded, even though both are sharers. Among the residuaries the descendants are preferred over ascendants and collaterals, and ascendants a~ preferred over collaterals. Among the collaterals, the descendants of a nearer ancestor are preferred over the descendants of a remoter ancestor.

All residuaries are related to the deceased through males. Residuaries may be classified as: (a) descendants of the deceased, (b) ascendants of the deceased, and (c) collaterals of the deceased. The collaterals may be further divided into:

(i) descendants of the deceased's father, and

(ii) descendants of the deceased's father's father how high soever. .

It should be noted that Six' sharers inherit as residuaries in certain circumstances. These are:

(a) the father,

(b) true grandfather how high soever,

(c) daughter,

(d) son's daughter,

(e) full sister and

(f) consanguine sister. Of these, the father and the' true grandfather inherit in certain circumstances both as sharers and residuaries. No other heir can inherit in double capacity. The other four who are all females, inherit either as sharers or as residuaries. They succeed as residuaries when they co-exist with male heirs of equal proximity. For instance, the daughter inherits as a sharer when there is no son.

When there is a son, she inherits as a residuary. The same applies to the other females. These are the only four females 'who inherit as residuaries, and they inherit in that capacity along with the males of equal proximity. Except the son's daughter how low soever, no one of these females can, as residuary, succeed with a male of lower grade.

For instance, daughter can neither succeed as residuary with son's son nor can sister succeed with brother's son. But son's daughter inherits as residuary not only with son's son's son how low soever. For example, when a Muslim dies leaving behind two daughters, D and D1, a son's son's son, SSS, son's daughter, SO, and son's son's daughter SSD, then D and D1 together will take 2/3 as sharers, SSS 1/6 as residuary, SD 1/12 as residuary, SSO 1/12 as residuary.

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