7 January 2014
The Mahomaden Law (the “Law”) is divided into two (2) branches: Sunni law (Fiqah Hanafi) and Shia Law (Fiqah Jafariah).
Shia Law of Inheritance divides legal heirs into three (3) divisions, that is, Group 1- Parents, children and their lineal descendants, Group 2- Grandparents and Siblings, and, Group 3- Paternal and Maternal uncles and aunts of the deceased (Section 88 of the Law).
From amongst all heirs, a member of Group 1 shall always have the first right of inheritance, excluding the second and third class of heirs and similarly the second class of heirs shall succeed the third class in the right to inherit.
Illustratively, if a Shia Mahomedan dies leaving a daughter’s son (grandson), a father’s mother (grandmother (dadi)) and a full brother. The daughter’s son will succeed to the inheritance in preference to the father’s mother and the full brother. On the other hand, if a Shia Mahomedan dies leaving his parents, a daughter, a son’s son (grandson), a brother and a paternal uncle; the first four relations (parents, a daughter, a son’s son (grandson), a brother), belonging to the first class, shall be eligible to inherit.
However, as the daughter and son’s son belong to the second degree of Class 1, the daughter being nearer in degree shall exclude the grandson from inheriting the property of the deceased. This is known as the doctrine of exclusion.
1. Rights of Heirs
For a clearer understanding, below is a table, summarizing the right/share of the heirs of Group 1 to the estate of a deceased under Shia Law:
1/4 (where there is a lineal descendant)
1/8 (where there is a lineal descendant)
1/6 (where there is a lineal descendant)
1/3 (in other cases)
All/ Residuary (where no daughter)
Double of daughters
|6. One Daughter||
1/2 (where no son)
½ of the share of son
|7. Two Daughters (collectively)||
|8. Grand Children (only where all children have predeceased the testator)||
Portion of their parents.
2. Transfer of Property
The Registrar of Properties in the area of Pakistan where the property is situated records all transfers. Courts look at the names on the records of the Building Control Authorities, Local Government (City Government), Excise and Taxation (Property Taxes) and Utility Companies to determine the legal ownership of inherited property in Pakistan.
3. Competent Court
The competent court to handle property and inheritance is the court of the last domicile of the deceased. If this is contested, or unknown, then the judiciary depends on where the property is located. For property located in Pakistan, a Civil District Court, or a High Court, is competent to handle inheritance issues.
4. Challenge of Gifts by Heirs
A Pakistani Muslim can freely give away any personal property before death. No one, including the legitimate heirs, can challenge this decision after the death of the donor.
Disclaimer: The above information is not legal advice as legal advice must be tailored to the specific circumstances of each case. Nothing provided herein should be used as a substitute for advice of competent counsel.
Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.
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