Doctrine of representation is a well known principle recognised by the Roman, English and Hindu laws of inheritance. Under the principle of representation, as is recognised by these systems of laws, the son of a predeceased son represents his father for purposes of inheritance. The doctrine of representation may be explained with the help of the diagram given below. P has two sons A and B. A has got two sons С and D and В has a son E.
During the life of P, his family members are his two sons (A and B), and three grandsons (C, D and E). Unfortunately, В pre-deceases P, i.e. В dies before the death of P. Subsequently, when P also dies, the sole surviving members of the family of P are A and three grandsons, C, D and E.
Under the doctrine of representation, E will represent his pre-deceased father В and would be entitled to inherit the properties of P in the same manner as В would have inherited had he been alive at the time of P’s death.
But, Muslim law does not recognise the doctrine of representation. Under Muslim law, the nearer excludes the remoter. Accordingly, in the illustration given above, E will be totally excluded from inheriting the properties of P. Both, under Shia as well as under Sunni law, E has no right to inherit the properties of P. The result is that E cannot take the plea that he represents his pre-deceased father (В) and should be substituted in his place.
Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to say, if there are two heirs who claim inheritance from a common ancestor, the heir who is nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus, between A and E, A will totally exclude E because A is nearer to P in degree whereas, E belongs to the second degree of generation. The Muslim jurists justify the reason for denying the right of representation on the ground that a person has not even an inchoate right to the property of his ancestor until the death of that ancestor.
Accordingly, they argue that there can be no claim through a deceased person in whom no right could have been vested by any possibility. But, it may be submitted that non-recognition of principles of representation under the Muslim law of inheritance, seems to be unreasonable and harsh. It is cruel that a son, whose father is dead, is unable to inherit the properties of his grandfather together with his uncle.
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