Under Hindu law, the doctrine of representation and the per stripes rules are recognized for succession as well as partition, the doctrine of representation is utilized for two purposes: (i) for determining the heirs, and (ii) for determining the quantum of share of an heir or a group of heirs.
ADVERTISEMENTS:
The per stripes rules means that where there are branches, the division of property takes place according to the stock, i.e., at the places where branches bifurcate.
Thus, suppose P dies leaving behind a son S and a grandson SS, who is a son of a predeceased son. By the application of the doctrine of representation, SS representing his father, will be an heir and will take the same share which his father would have taken had he been alive.
This means that S will take 1/2 and SS will 1/2. Take another example. A dies leaving behind two grandsons, SS, SS1, from a predeceased son S, three grandsons, SS2, SS3 and SS4 from a pre-deceased son S’ and four grandsons, SS5, SS6, SS7 and SS8 from, a predeceased son S2, and a on S3.
By the application of the doctrine of representation all the grandsons will succeed along with the son. S3 by virtue of per stirpes rules, the share will be determined at the stocks, i.e., there will be four shares, one for S, one for S1, one for S2 and one for S3, each son taking one-fourth, S1S 1/4 will go to SS and SS1, and S2s 1/4 will go to SS2, SS3 and SS4 and S2’s 1/4 will go to SS5, SS6, SS7, and SS8 and S3 will each take his, 1 /4.
ADVERTISEMENTS:
Under the Hanafi law, no aspect of the doctrine of representation is recognized, with the result in both the above illustrations the son will take the entire property and no grandson will take any share.
The result under the Shia law is also the same. But the Shia law recognized the doctrine of representation for the second purpose, viz., for determining the quantum of shares in certain cases.
Thus, if in the second example above, if S3 was not alive, then the property would have been at the first instance divided among the pre-deceased sons, S, S1 and S2, the share of each would be 1/3. This one-third would be passed on to the grandsons in their respective branches. In other words, the Shia law recognizes the doctrine of representation and the stripital succession for the purposes of determining shares in certain cases.
For instance, if P dies leaving behind three grandsons, A, В and С from a son S, and two grandsons, X and Y from a predeceased son S1, and a grandson Q from a pre-deceased son, S1, and a grandson Q from a pre-deceased son, S2, then the distribution of assets will take place not in accordance with grandsons, but in accordance with sons.
ADVERTISEMENTS:
In this example, the share of S, S1 and S2 will come to 1/3 each. S’s 1/3 will go to A, В and С each taking 1/3; S1’s 1/3 will go to X and Y, each taking 1/6, and S2’s 1/3 will go to Q. Under the Hanafi law, each grandson will take per capita, i.e., А, В, С, X, Y and Q each will take 1/6 share in the assets.
The doctrine of representation and the stripital succession for the purpose of calculating the shares of certain heirs is the basic principle of the Shia law and is applied throughout. This is not confined to descendants but is also applied to ascendants.
Thus, the descendants of a deceased son, deceased uncle, deceased aunt, deceased daughter, deceased brother, deceased sister, if they are heirs, are all covered by the doctrine of representation.
Similarly, the rule is applied to great grandparents who would take the same share which grandparents would have taken had they been alive. The father’s uncles and aunts are also covered by the rule.
In the three groups of heirs by consanguinity among the descendants, the general rule is that they take per stirpes and not capita. For instance, P dies leaving behind a uterine brother’s son UBS and full brother’s daughter, FBD.
The uterine brother, MS, would have taken 1/6, had he been alive; as a sharer he would have taken 1/6, and had the full brother, FS, been alive, he would have taken the remaining 5/6 as a residuary. Since both are dead, their share will pass on to UBD who will take 1/6 and to FBD who will take 5/6.
