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«Dissertation Zur Erlangung des akademischen Grades Doctor rerum agriculturarum (Dr. rer. agr) eingereicht an der Landwirtschaftlich-Gärtnerischen ...»

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In this law, the compensation prices depend on the market values of land at the time of notification and are defined as the value of land similarly situated and in similar use. In some cases, person finds that the compensation equals the value of the registry of his property. This will be decided according to the situation of the land.

5.7 Law of Inheritance

Inheritance is usually treated as an unimportant issue for policy formation concerning the security of tenure, land rights, land reform, or regularization (United Nations Human Settlements Programme (UN-HABITAT) 2005). However, this is one of the most common ways of acquiring land or of gaining access to land. In all Muslim societies such as Pakistan, inheritance rules are generally derived from religious sources for the division of an individual's property upon death. The rules are implemented by the family and community and are upheld by the State. Before the creation of Pakistan, Mohammedan Law was implemented for inheritance in Indian Courts. After partition in 1953, Islamic Shari’a Law was introduced, and in 1960, inheritances were announced to be distributable according to this

In charge at district level activities

law. In 2002, the Supreme Court of Pakistan made an amendment for giving shares to orphan grand-children.

As for all other inheritance laws, Islamic inheritance law allows the distribution of all kinds of property of the deceased, whether moveable or immovable, among heirs. However, the Islamic Law of succession has many distinctive features which are given below.

1. This law provides a wide range of beneficiaries of these assets

2. Fixed percentage share for the beneficiaries

3. A will is very important for a Muslim, and the importance of the will is clear from the following hadith,33"It is the duty of a Muslim, who has anything to bequest not to let two nights pass without writing a will about it." (Sahih al-Bukhari), but a person is restricted to leaving only one third of his assets according to his will, and the remaining two thirds will be distributed as per rules of Islamic Inheritance Law.

When a Muslim dies, some liabilities are necessary to be paid from his assets.

• All expenses of his funeral

• All debts, which he has to pay

• Implementation of his will

• Distribution of remaining assets among heirs according to Islamic Law

5.7.1 Beneficiaries of Inherited Property

Islamic Inheritance law explains the different levels of beneficiaries, who inherit the property of a deceased. In level one, all those heirs are included who are classified as primary or immediate family members, in which the spouse, children, and parents can be included. Level two, which is categorized as the secondary level, includes the grandchildren (only children of the son, in the case of the son having died), grandparents (in the case of the parents having died), brothers and/or sisters (in the absence of father and son, only), and uncles and/or aunts (in the case of the grandparents also not being alive). Similarly, the distribution occurs to the next levels, in the case of the absence of heirs from previous levels; it is not practical to give the share to the heir in level three, if the heir in level two is alive.

Hadith means the narration of Holy Prophet Mohammad (Pease Be Upon Him)

Islam has a clear definition for the heirs; for example, adopted children are not considered as the shareholder in the property of the deceased. Similarly, orphan grandchildren (daughter’s children) are also unlikely to obtain any share from the assets of the grandfather, if he has not mentioned them in his will. The same occurs for an unborn child or a child who is the offspring of the spouse of the deceased. A person can give some share of his property as a gift to these defined members of his immediate family or can leave something (one third of his total assets) for them in his will. The last category (offspring of the spouse) can obtain a share from his mother’s property according to the rules.

5.7.2 Fixed Percentage Shares

Before the explanation of fixed percentage shares in Islamic Shari’a,34 some terms should be clarified, for example, sharer and residuary. Sharers are those heirs who will receive their allotted share according to their entitlements, and residuaries are those who will receive the residue according to their entitlement as per the given rules as (1) remote relations are excluded by the nearer, and if no near relation is available, the residuaries will receive all estate of the deceased. (2) Sometimes, the ratio of double for a son in comparison with a daughter will also generate some residues. Shares from deceased males and females are different for some heirs, but the share of the children is the same from both parental sides. All the details of this sharing are explained below.

Distribution of inheritance between first level heirs for a deceased male: After the performance of his necessary duties, his property will be distributed among his first level heirs, such that his wife will receive one eighth of the remaining property in the case of having children, whereas if there are no entitled descendents,35 she will receive one fourth of the remaining property. If the deceased has only one daughter and no son, then that daughter will receive half of his remaining assets, but in the case of two or more daughters, the shares will be two thirds for all, which will be equally divided between them. If the departed is blessed with sons and daughters, then every brother will get double the share of his sister.

In the case of parents, the mother is the direct sharer of the son’s property and will receive one sixth from this property, if entitled descendents are present. If the deceased has no children, then here again two situations will arise; in the first situation, if no other relation Islamic law Entitled descendants: sons and daughters such as spouse, father, brother, and sister of the died person exist, then the mother will receive one third of his property, and if any of these relations is alive, then the mother will get one third of the residue. For example, if the wife of the deceased is alive and has no child, then according to the law, the shares of both the widow and the mother are given below in Equation 5.1 and 5.2.

Share of the widow = 1/4 5.1 Share of the mother = 1/3 of the residue (1/3 of the 3/4) = 1/4 5.2 The father’s position as an heir has three characteristics: (1) as a sharer, (2) as a residuary, (3) as a sharer plus residuary. In the presence of other entitled descendents, the father will be a sharer and will receive one sixth of the deceased's property, but if he has no grandchildren, then he can take the residue, and in the presence of female descendents, he will first take his prescribed share of one sixth and then will take the residue.

Figure 5.7 (a) explains the situation of all the first level sharers with their fixed shares;

similarly, part b of Figure 5.7 depicts a scenario in which no entitled descendents exist, and the father and mother inherit as residuaries. Figure 5.7 (c) indicates the situation in which the father acts as both sharer and residuary in the presence of the only female daughter of the deceased.

–  –  –

Figure 5.6 (c): Distribution of Assets where the Father acts as a Sharer and Residuary Source: Own Presentation

In the case of a deceased male, the distribution of property to the heirs of the next levels:

According to Inheritance Law, the secondary and next level heirs in the queue are entitled to inherit only in the absence of the particular primary heirs or heirs from the previous level; for example, if the son has died from the group of primary heirs, then his children are entitled to be sharers, and the property will be distributed according to the rules explained above. If the son of an excluded son is present among his entitled descendents, then his only daughter will get half of his share, whereas two daughters will get two thirds, and a son will get double his sister’s share as explained in Figure 5.8. The daughter’s children as previously explained are not eligible for the property of grandparents, but they can receive something as a gift or as part of the will. The only possibility of them receiving a share of the two thirds portion of the grandparents is if there are no sharers or residuaries, which is very rare.

Grandparents represent the next level in the queue after parents and are eligible only if the father and mother no longer exist. The grandmother may be father’s mother or mother’s mother of the deceased and cannot be excluded from the list of heirs in the absence of the father or mother and will receive one sixth of his property as a sharer. Similarly, the grandfather will receive the same proportion, according to the same rules, that the father of the deceased receives, in the absence of a father or mother.36

–  –  –

Figure 5.7 (b): Grandmother Receives a Fixed Share and Grandfather Receives the Residue in the Absence of Descendants Source: Own Presentation Grandparents of father in case of missing father and grandparents of mother in case of missing mother

–  –  –

Figure 5.7 (c): Grandmother Receives a Fixed Share and Grandfather Receives a Presubscribed Share plus the Residue in the Absence of Descendants Source: Own Presentation Similarly, if the deceased has no entitled descendent or ascendant at the primary level, 37 then the property passes to secondary level heirs, which are brothers and sisters, who will receive shares only in the case if the father and sons of the deceased have previously died or not existed.

Brothers and sisters are also categorized in three different groups, (1) full brothers and sisters, from the same mother and father, (2) uterine brothers and sisters, from the same mother but different father(s), (3) consanguine brothers and sisters, from the same father but different mother(s). Shares of property in all these three cases are different, as given below.

In the case of distribution to full brothers and sisters, if there are no female descendants, and the deceased has only one sister, then she will get half of his property. In the case of more than one sister, then they all get two thirds collectively, and if some brothers also existed but are deceased, then there will be a ratio of two to one between the brothers' and sisters’ shares, as shown in Figure 5.9. If the departed is the brother of a male only, then in the case where no male entitled descendants exit, he will receive one sixth of his property; similarly, if there is only a sister, then she can also claim for a one sixth portion in the same case, but if the deceased has brothers and sisters, then they can have one third of the remaining property, after paying the necessary duties of the deceased. This case is shown in Figure 5.10.

Real son and father are the primary level descendent and ascendant respectively.

–  –  –

The distribution among consanguine brothers and sisters is the same as that for full brothers and sisters, but in the case of uterine relations, if the deceased has only one brother or sister, his/her share will be one sixth, if the deceased has left no children. In the case of a daughter of the dead man, his brothers and sisters will receive one third of his property, providing that he has no son and father.

Similarly, uncles and aunts are the next following heirs after the grandfather, just as the brothers and sister are next following to the parents, and any nephews and nieces are next following to the brothers and sisters, and so on. They can claim only in the absence of particular heirs. If anyone above them in the queue is available, then the property cannot be transferred to them.

If the deceased is female, then most of the distribution is the same, but some shares are different; for example, her spouse (husband) is the only sharer who receives half of her property, if she has no child, whereas in the case of children, his share is reduced to one fourth portion of his wife’s property. Another difference is between the shares of the children, as a female can allot fixed share of her property as per rule of law to all of her children, even if their fathers are different. The third point of difference is in the share of brothers and sisters;

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