APPLICATION OF DOCTRINE OF RADD AND EVOLUTION OF RIGHT OF REVERTER OF SURVIVING SPOUSE
R.J. Franciska Oviya, B.A. LL. B, 5th Semester, Student at Government Law college, Madurai affiliated to Tamil Nadu Dr. Ambedkar Law University (India)
In Islamic intestate succession, the sharers (Koranic heirs) and the residuaries or customary heirs inherit simultaneously; the distant kindred inherit only in their absence. Following the assignment of fixed sharers to sharers, a portion of the deceased’s intestate estate remains undisposed of. Since there are no residuaries to claim the residue, the issue of distribution of excess heritage arises. Under Islamic jurisprudence, the doctrine of Radd (return) is applied to resolve the problem of excess heritage. The paper examines the mathematical application of Radd through detailed illustrations across two broad scenarios: the presence and the absence of surviving spouse of deceased intestate. The former scenario is further bifurcated based on whether the deceased is survived by only one non-spouse heir or multiple heirs. The doctrine of Radd, applied to treat these anomalous situations, itself has certain exceptions. Historically, intense controversies surrounded the application of Radd to the surviving spouse, which has been recognised as an exception to the doctrine in both Sunni and Shia schools of law. In Shia jurisprudence, two additional exceptions prevail. Furthermore, this paper analyses instances where an individual inherits in dual capacities, a situation that structurally mimics the return. The faith on Ghaibt (occultation) of Twelfth Imam and the allocation of unclaimed estate to the public treasury (Bayt-ul-Mal) are reasons to neglect the return of excess heritage to surviving spouse. The right of Reverter of surviving spouse has evolved over centuries. It has ultimately solidified as an equitable principle through the seminal rulings of Indian Courts before and after the independence.
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| Research Paper | LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 2, Page 2773–2791. |
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