Exclusion 3

We covered seven (7) rules of exclusion in the last two posts. Continuing, 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

* Consanguine brother's son

* Full paternal uncle

* Half paternal uncle

* Full paternal uncle's son

* Half paternal uncle's son

Now 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 and those below him.

Rule 10: Full brother's son excludes consanguine brother's son and below him.

Rule 11: Consanguine brother's son 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 and his own son.

Rule 14: Full paternal uncle's son excludes half paternal uncle's son.

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 has 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, 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 he excludes other members of alpha. Thus, the above statement that "he who excludes full brother excludes all members of alpha" does not apply here.

Rule 18: Son, grandson, father EACH excludes full and consanguine sisters.
Again, grandfather does not exclude full and consanguine sisters.

Rule 19: Son, grandson, daughter, granddaughter through a son, father, paternal grandfather EACH excludes uterine brothers/sisters.

Rule 20: Mother excludes both grandmothers.

Rule 21: Father excludes paternal grandmother (i.e his own mother) only.