Nemil ShahRoll No.49, 2nd Year,BSLS, Faculty of Law,The M.S.University of Baroda.
DOCTRINE OFRETURN & INCREASE Like Sunnis Law, Shia Law solves the problems ofexcess by the application of the doctrine ofrudd, though in the actual application of the doctrinethere are some differences between the two. The Shias do not recognize the doctrine of increase.
Under Shia Law, if total share of sharers exceedsthe heritable property i.e. Exceeds the unity, theshare of all sharers is not proportionally reduced butit is always deducted from the shares of followingtwo heirs : - Daughter or Daughters Full or Consanguine sister or Sisters
A, Mohmammedan Wife dies leaving husbandand two full sisters : H – ½ = 3/6 = 1/2 2 Full Sisters - 2/3 = 4/6 (reduced 4/6 – 1/6)= ½ Total 7/6 (Without Reduced)
Under Sunni Law if there are residue, there are noresiduaries, the residue return to the Sharers. But inShia Law the total absence of the residuaries as aclass not required by Shia Law, only if theresiduaries in the class to which the Sharers belongis absent, it will be sufficient for the application ofthe doctrine of the Return.
The above given General rule has certain exceptionswhich are as follows : The Husband : The Husband is not entitled to the‘Return’ so long there is any other heir of the deceasedexist. If there is no any other heir, the Husband will takewhole estate by ‘Return’. The Wife : As Husband, wife too is not entitled to‘Return’ so long there is any other heir of the deceasedexist. The old view was that if there is no other heir, wifewould not take the whole estate, she would take only hershare ¼ and surplus would escheat to the Government.EXCEPTIONS :
The Mother : The Mother is not entitled to the ‘Return’ Ifthe deceased dies leaving daughter or any of thefollowing: a) one or more full or consanguine brothers, b)one full or consanguine brother, two full or consanguinesisters, or c) four full or consanguine sisters. To Preventthe mother from taking return, the surplus reverts to thefather and daughter in the proportion of their respectiveshare. The Uterine Brothers and Sister : Uterine Brother andSister are not entitled to the ‘Return’, if they co-exist witha full sister and sisters divide the return in proportion tothe Sharers.EXCEPTIONS :