RESEARCH MONOGRAPG: Position of Nominee and Legal Heir in Statutory Laws of Bangladesh and Muslim Law of Succession

III

Concept of Legal Heir

3.1 Introduction

After the death of a person his/her property is distributed among his/her heirs. It is a major question for apportionment of the deceased’s property that who are the heirs of the very deceased. Heir is a person who has the legal right to receive somebody’s property, money or title when that person dies.108

Heir may be identified through personal laws or will or succession law of the concerning state. It varies from country to country and religion to religion. In the major religions there is a separate succession rule for each of them. But in the modern time in these religious rules there have been brought changes through statutory laws.

In statutory laws it is said that a legal heir will be the one whose name is mentioned in the will. However, if a will is not made, then the legal heirs of the assets are decided according to the succession laws, where the structure is predefined on who gets how much.109 At present the Hindu law says that on the death of a man, in case there is no will, the property is equally shared between the wife and the children. Muslims are governed by their personal laws.110 In Muslim law will can only be drawn for non-heirs in Bangladesh.

Actually the term legal heir is mostly related with inheritance. When any property is in question for distribution then this term draws our attention and often enquires of who have the status of the legal heir.

According to the Black’s Law Dictionary111

  1. Heir means ‘a person who, under the laws of intestacy, is entitled to receive an intestate descendant’s property.’
  2. Loosely (in common-law jurisdiction) a person who inherits real or personal property, whether by will or by intestate succession.
  3. Popularly, a person who has inherited or is in line to inherit great wealth.
  4. Civil law. A person who succeeds to the rights and occupies the place of or is entitled to succeed to the estate of, a descendant, whether by an act of the descendant or by operation of law.

According to Osborn’s Concise Law Dictionary112 heir at law is-

…the person who, under the common law or statutory rules, inherited the real property of his intestate ancestor. Heirs could be-

(1) customary or special inheriting by virtue of a custom …

(2) general inheriting by descent as fixed by law; or

(3) special or in tail inheriting according to nature of the entailed interest.”

According to legal-dictionary.thefreedictionary.com113 Heir is-

an individual who receives an interest in, or ownership of, land, tenements, or hereditaments from an ancestor who has died intestate, through the laws of Descent and Distribution

There is a difference in the meaning of the word ‘legal heir’ between common law and civil law.

By the civil law,

the term heir was applied to all persons who were called to the succession, whether by the act of the party or by operation of law.”

At Common Law,

an heir was the individual appointed by law to succeed to the estate of an ancestor who died without a will. It is commonly used today in reference to any individual who succeeds to property, either by will or law…”

All free persons, even minors, lunatics, persons of insane mind or the like inherit from others114 Even the child in its mother’s womb, is considered as born for all purposes of its own interest; it takes all successions opened in its favor.115

In this chapter it is tried to describe the notion of legal heir in different religious aspect with special reference to Bangladesh.

3.2 Legal Hires in Islamic Law

Muslim law of succession is only the law which is divine. In the world there is no such law which describes legal heirs heavenly. In the holy Qur’an, the legal heirs are described as follows-

The verse 11 of Sura an-Nisa deals with the portions allotted to-

  1. children, and
  2. parents.

The next verse 12 of Sura an-Nisa deals with the portions allotted to-

  1. husband or wife of the deceased, and
  2. collaterals.

The last verse 176 of the said Sura deals as supplementary with the portions allotted to-

  1. collaterals

These are the main legal heirs of a deceased according to the Quran. Jurists of the two major schools of Islamic jurisprudence have interpreted these heirs differently and numbers of the heirs are increased thus-

In Sunni law the jurists interpret son like- son will include son’s son how low so ever. And daughter includes son’s daughters how low soever. In the presence of son no son’s son and son’s daughter inherit to the deceased property but in the presence of daughter both son’s son and son’s daughter inherit together. In Shia law children are interpreted as they include their descendants but in the presence of the children, no descendant of them inherits to the deceased’s property.

Father includes father’s father (how high soever). In the absence of father, father’s father takes the position of father; the nearer excludes the more remote. Mother includes mother’s mother or father’s mother (h.h.s). In the absence of mother they together take mother’s minimal share equally. But where father is alive, father’s mother does not receive any share. In Shia law in the presence of either parent, no ascendants of them inherit to the deceased’s property.

Sometimes wife may be more than one but (their) share is fixed.

The collaterals (brothers and sisters) are interpreted under three heads:

  1. Brothers and sisters of the deceased from the same father and mother. Technically known as Germane/full brother and sister.
  2. Brothers and sisters of the deceased from the same father but not from the same mother. Technically known as consanguine brother and sister.
  3. Brothers and sisters of the same mother, but their father not being the same as that of the deceased. Technically known as uterine brother and sister.

The relatives are categorized (in Sunni law) on the basis of the previous customs of Islamic era. In determining legal heir, Shia school adheres more liberal to the Quranic injunctions than Sunni school.

3.2.1 Legal Hires in Sunni Law

Sunni school specially Hanafi law divides legal heirs into three major divisions. Such as-

  1. Zava-ul- furuz (fixed sharers)
  2. Asaba (residuary)
  3. Zava-ul-arham (distant kindred)

The following list is the combination of Quranic heirs and Residuaries 116

  1. Son,
  2. Daughter, daughters.
  3. Son’s son, (how low so ever)
  4. Son’s daughter
  5. Husband
  6. Wife, wives
  7. Father
  8. Mother
  9. True grand mother, grand mothers,
  10. True grandfather,
  11. Full brother
  12. Full sister
  13. Consanguine brother
  14. Consigning sister
  15. Uterine brother or sister or brothers or sisters
  16. Full brother’s son, nephew
  17. Consanguine brother’s son, consanguine nephew
  18. Full paternal uncle, father’s full brother
  19. Consanguine paternal uncle, father’s consanguine brother.
  20. Full paternal uncle’s son
  21. Consanguine paternal uncle’s son
  22. Great uncle, father’s father’s brother
  23. Consanguine great uncle, father’s father’s consanguine brother
  24. Great uncle’s son
  25. Consanguine great uncle’s son.

The son alone can inherit the entire property out of all the twenty-five heirs. He excludes Nos. 3 and 4 and from Nos. 11 to 25. Father and brother exclude heirs Nos. 9 and 10; and as regards Nos. 5 and 6- husband and wife- only one of them can participate at one time as the case may be. So the number of claimants is generally reduced to four or five at the most. The above list includes first two groups of heirs. If any one of them is not alive, the cognates (relatives from female side) will be the heirs of the propositus. State may be the legal heir of the propositus where there is no legal heir mentioned in the above other than the state and all the personal laws agree to this view.

3.2.2 Legal Hires in Shia Law

In Shia law the heirs are divided into two groups:117

(1) Heirs by consanguinity

(2) Heir by affinity

Shia law classifies the legal heirs thus as follows:

Heirs of Class I-

(a) Parents

(b) Children and their descendants (how low soever)

Heirs of Class II-

(c) Grand parents (how high so ever) true and false

(d) Brother and sister and their descendants (how low soever)

Heirs of Class III-

(e) Paternal and maternal uncles and aunts of the deceased and of his/her parents and grandparents (h.h.s.) and their descendants (h.l.s.)

Universal Heir118

(f) Husband or Wife/wives

In Shia law in the presence of class-I, class- II and III are excluded, and in the presence of class-II, class- III is excluded from the inheritance. Husband or wife is never excluded from the inheritance. He/she inherits to the deceased with every class of heirs.

3.3 Who can be the legal heir of a Deceased in Bangladesh

Muslim law of inheritance has been determined by the Quran and in the next through the Hadith and Qiyas. All over the world which countries follow the Muslim shariah law, the legal heirs of those countries are like the Muslim law. But in the modern age some Muslim countries have been being amended that Shariah law relating to inheritance through the statutory law. For this reason the list of the legal heirs determined by the Shariah has been changed.

Constitutionally Bangladesh is a Muslim country because art. 2 of her provides that state religion of it is Islam but other religions can peacefully be observed. People of different religions follow and observe their own customs except our national cultural ceremonies. The apportionment of property depends on their personal law. Legal hairs are determined during distributing the deceased’s property.

As is known to all that most of the Bangladeshi Muslims are the followers of Hanafi law of Sunni school of Islamic Jurisprudence. In Bangladesh when a Muslim dies his/her legal heirs are determined according to the Hanafi School. In 1961 the then government has been brought a reform regarding the succession which indicates a new way of determining the legal heir. In Sharia law, Sunni school does not permit that son and son’s children will inherit together and Shia school does not permit that children and their descendants inherit together but after passing the Muslim Family Laws Ordinance of 1961,119 children and their descendants inherit the deceased property together. Bangladesh has adopted that very law through the promulgation of the ‘Laws Continuance Enforcement Order, 1971.’120 So, in Bangladesh, the legal heirs of a Muslim who follows the Hanafi law are- Children, their descendants and the others like traditional Hanafi law of succession.121

3.4 Conclusion

Conception of legal heir is a vast and difficult term. Every legal system broadly or narrowly faces the problem of determining of the legal heir. Day by day meaning and chain of the legal heir is changed. Most of the people want to give their property to those who are dearer and nearer. For the demand of the time the states make laws regarding this vital issue. From the above discussion it is clear to us about the legal heir in Bangladesh. From the beginning of the world, the inheritance system has been going on and till the last day of the world, all are tempted to inherit in the deceased’s property. It is the law of the nature that one will gather the assets and others will enjoy through succession. The descendants and relatives, all, want to enjoy the deceased’s property. So there may emerge a chaotic system. To solve the problem from time to time in every society the legal heir is determined through customs or personal law or statutory law. Some states declare, to avoid the chaotic system of the society that the owner of the whole property will be the state and all the liabilities of maintenances of the people will be born by the state.122

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