Exclusion – Part 3

Now, let’s consider a set of heirs in a particular order. I call the set “alpha” and it’s made up of: Full brother

Consanguine brother

Full brother’s son or his descendant

Consanguine brother’s son or his descendant

Full paternal uncle

Half paternal uncle

Full paternal uncle’s son or his descendant

Half paternal uncle’s son or his descendant

The order of arrangement is VERY important when it comes to exclusion because a member excludes all those below him. For instance, if a full brother is present, every other member is excluded; likewise when a full brother is absent, a consanguine brother if available excludes other members, and so on. Therefore,

Rule 8: Full brother excludes consanguine brother and those below him.
Rule 9: Consanguine brother excludes full brother’s son (or his descendant) and those below him.
Rule 10: Full brother’s son (or his descendant) excludes consanguine brother’s son (or his descendant) and those below him.
Rule 11: Consanguine brother’s son (or his descendant) excludes full paternal uncle and those below him.
Rule 12: Full paternal uncle excludes half paternal uncle and those below him.
Rule 13: Half paternal uncle excludes full paternal uncle’s son (or his descendant), his own son or his son’s descendant.
Rule 14: Full paternal uncle’s son (or his descendant) excludes half paternal uncle’s son (or his descendant).

Note that any heir (outside alpha) that can exclude a full brother automatically excludes all other members of the set.

Rule 15: Son excludes full brother.
Rule 16: Grandson through son excludes full brother.

This is applicable in the absence of a son. Recall that grandson through daughter is a non-heir. Also the rule trickles down to descendants provided they are ALL sons; such that great-grandson excludes full brother in the absence of son and grandson.

Rule 17: Father excludes full brother.

Observe the connection between rules 15 and 16. The son of a deceased will exclude the deceased’s full brother. In the absence of the son, the grandson will exercise the same power and exclude the full brother. Conversely, father excludes full brother as well (rule 17). Now, if the father is not present, who takes his place? Of course his father i.e. the deceased’s paternal grandfather. But does the grandfather in addition to having a share of the estate also have the authority to exclude full brother? Even the Companions of the Holy Prophet (peace be upon him) differed on this because the ruling is neither clearly stated in the Qur’an nor did such a circumstance arose during the lifetime of the Holy Prophet (peace be upon him) to necessitate a verdict.

The first opinion is that grandfather excludes full brother because he inherits all the privileges of the father; just like the grandson inherits all rights and privileges of a son. The second view is that grandfather does not have the ability to exclude full brother even though he can “jump” and replace the father to inherit from the deceased. One of the arguments of the proponents of this view (which has been adopted by majority of Jurists like Imams Malik, As-Shafi’i, Ahmad ibn Hanbal and others) is that father excludes his mother i.e. paternal grandmother (see below) but grandfather cannot exclude her because he (grandfather) does not have the same status as the father. As a result, grandfather cannot exclude full brother as a father does.

IMPORTANT: Full and consanguine brothers are the only ones not excluded by grandfather. It is generally agreed that grandfather excludes other members of alpha.

Rule 18: Son, grandson (or his descendant) and father EACH excludes full and consanguine sisters.

Again, grandfather does not exclude full and consanguine sisters.

Rule 19: Son, grandson (or his descendant), daughter, granddaughter through a son, father and paternal grandfather (or his ascendant) EACH excludes uterine brothers and sisters.
Rule 20: Mother excludes both grandmothers.
Rule 21: Father excludes paternal grandmother (i.e. his own mother) only.

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