ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

Islamic Studies (Islamabad) 4:3 (1965) 

ORPHANED GRANDCHILDREN IN ISLAMIC 

SUCCESSION LAW 

A Comparison of Modern.Muslim Solutions 

KEMAL FARUKI 

I. lntroduction 

The question of providing for orphaned grandchildren out of 

the estate of their deceased grandparent has received increasing 

attention in Muslim countries in recent years. Classical interpre- 

tation of s&ari'ah of all schools held that in the presence of a living 

son of the propositus a grandson by another predeceased son or 

daughter was excluded from receiving by law any part of the 

grandparent's estate. 

A number of Muslim countries have made reforms in this law 

to enable such grandchildren to receive an ascertained proportion 

of their grandparent's estate upon his or her death. Such countries 

include Egypt (in 1943 and 19461, Sudan (in 1945), Syria (in 1953). 

Tunisia (in 1956 and 19591, Morocco (in 1958). 'Iraq (in 1959 and 

1963) and Pakistan (in 1961). Two distinctly different methods of 

solving this question have become apparent. The first one finds its 

fullest expression in the Egyptian law of 1946 and is known as the 

system of "obligatory bequests" while the second one has been 

applied in the Pakistani law of 1961 and may be ccinveniently 

described as the system of "inheritance by right". The purpose of 

the present study is to comparatively evaluate these two methods 

but, before doing so, it is essential to understand the principles 

of Islamic testate and intestate succession and the circumstances 

which have led to the desire to effect this reform in recent times. 

From earliest times Islam sought to replace the tribal loyalties 

of "the days of ignorance" by a community of believers ; this 

community of believers to be composed of sub-units, no longer of 

tribes, but of families. In earlier times, therefore, the problem was 

to emphasize the family in contra-distinction to the tribe. 

strengthening the family bond by a further emphasis within the 

family itself on all male agnates (those related to a common male 

ancestor through mainly male links) and certain closely related 

women ; the lesser emphasis within the family being on the other

254 KEMAL FARUKI 

women agnates and all cognates (descended from a common 

ancestor) both men and women. Family solidarity was possible on 

this wide. almost amorphous, scale and may have been necessary to 

withstand the competing claims of the tribe. The eldest male 

member of such a family possessed considerable authority and upon 

his death this authority with its responsibilities devolved upon his 

next eldest brother or his eldest son. Within this larger family 

unit there existed a strong compulsion towards mutual protection 

and help. Women of the family moved into another grouping upon 

marriage while outside women entered the family grouping upon 

marrying its male members. 

But in recent times this has decreasingly become an accurate 

description of the family as a meaningful entity. Even during the 

lifetime of their fathers, brothers tend to become less involved in 

questions concerning their nephews and nieces and a Muslim gives 

considerably greater attention to his daughter. long after her marriage, 

than he gives to an agnatic nephew. The socio-economic structures 

of Muslim groups have been undergoing great, indeed unavoidable, 

changes. The change from a pastoral or agricultural to an increasingly 

industrial economy, the growing concentrations of people within 

large impersonal cities and the movement of people from place to 

place. as their occupations demand, far from their ancestral homes 

all these factors have tended to make the larger family of the past 

less meaningful as a social unit. Indeed the process has gone to the 

extent of making even the close, immediate family a much looser 

bond in some parts of the world. 

The first problem is to understand whether Islam welcomes 6r 

deprecates these changes in the social structure. It can hardly be 

doubted that Islam attaches the greatest importance to the 

family as the foundation for a healthy community and that this 

importance continues in spite of the socio-economic changes of 

recent times. But the benefits of family solidarity are essentially 

derived from the ties between the members of the close, immediate 

family, rather than the wider grouping of collateral and even more 

distant blood relations. The protection of this close, immediate 

family, from the challenges facing it, is necessary and. unlike the 

challenges from tribal loyalties of earlier times, the challenge of 

today is from its very opposite, an unbridled individualism which 

asserts itself at the cost of even close family ties. 

To meet this present-day challenge and strengthen the Islamic

social ideal it may prove desirable or necessary to revise our 

interpretations of Islamic principles as they find expression in rules 

of positive law. This is probably the most valid explanation for 

many of the changes in the interpretation of Islamic family law that 

are taking place in a considerable, increasing, number of Muslim 

countries today. 

Thus in the Islamic laws of succession the preservation and 

strengthening of the family as the basic grouping of a healthy 

community has been sought by identifying the hitherto relatively 

obscure distinction between the true immediate family and the 

larger amorphous family grouping and then ensuring that these 

closer ties are adequately expressed in the succession rules. What 

then is this true "immediate family"? Primarily, the immediate 

family consists of those related in a direct connection on the male 

side from the grandfather and his male ascendants how high so ever 

to father and then son to the grandsons how low so ever (together 

with their spouses). But one immediate fami!y bifurcates and 

trifurcates in each generation to form a number of parallel related 

immediate families formed by uncles, brothers and nephews, Le., the 

collaterals of each generation while the women of the immediate 

family transfer after their marriages into the orbit of a totally 

different immediate family and cease, particularly where their issues 

are concerned, to be part of the original immediate family of their 

parents and carried on in distinctly separate immediate families by 

each of their brothers. The limits of the true immediate family 

can only be identified with reference to a particular generation. 

For example, where A has two sons BA and CA and these two 

sons have each two sons ABA and BBA and ACA and BCA 

respectively, the immediate family of A includes all the foregoing 

people but when one moves to the next generation, while the 

immediate family of BA includes A it only additionally includes 

his sons ABA and BBA as distinct from the immediate family of 

CA which includes, again, A. but exclusively encompasses his sons 

ACA and BCA, as distinct from the immediate family of his 

brother BA. No sooner does one describe CA or ACA as being a 

member of BA's family, than one is considering a wider, more 

tenuous family grouping than that of a true immediate family. 

Against this background the changes in the succession laws 

(whether by obligatory bequests or by inheritance by right) both 

have the objective of strengthening the immediate family and must


be evaluated in this context. It is true that they seek to meet a 

deserving case of need but there are many possible types of cases 

of need. even within the family and, conversely, not all grand- 

children whose father or mother have predeceased them are cases of 

need. The singling out of grandchildren by a predeceased son or 

daughter for the benefit of this legal reform is actuated by the 

conviction that an important class of relatives within the immediate 

family is inadequately provided for by earlier succession law. 

In this preoccupation with the present-day requirements of the 

family, there is a real danger that the other, larger element, of the 

community, in the Islamic social ideal may be neglected. The 

solidarity of the immediate family cannot be achieved at the 

expense of the community and yet be true to Islamic princip1es.l 

Indeed, family solidarity is sought for the betterment of the 

community as a whole and Islam has consistently emphasized the 

importance of evoking a "social conscience" of which the institu- 

tions of group worship, zakzit and the pilgrimage are characteristic. 

The betterment of the community is regarded as an essential 

counterpart to concern for one's own family and the two, 

community and family, are linked together in numerous Qur'~nic 

passages where the believer is urged to help the kindred, the 

wayfarer and the needy, whether those from the latter two 

categories are related or not. 

This dual emphasis on the community and the family is brought 

out in the Islamic laws of succession as well, particularly in the 

order of priority by which the assets are to be distributed of a 

deceased Muslim's estate. First to be paid are the funeral 

expenses which must be commensurate with dead person's status in 

life and represent the family and the community's obligations 

towards the deceased. Second come the payment of debts which 

represent the deceased's obligations to the community. Third are 

the payment of legacies, some of which may represent some of the 

deceased's obligations towards his Maker, such as a legacy for the 

outstanding amount of zaBiit due from him or a legacy for the 

expiation of fasts not kept or to enable someone to perform the 

pilgrimage on his behalf. Others of great merit are legacies for 

religious and charitable institutions and causes for the benefit of 

the needy or to provide for needy individuals including kindred not 

otherwise provided for in his estate. Fourthly and finally in 

priority come the portions of the deceased's estate which devolve

ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 25'1 

in prescribed proportions to the nearest living members of his 

family. 

The position of legacies deserves closer attention. True, legacies 

cannot exceed one-third of the estate left after the satisfaction 

of funeral expenses and debts and at least two-thirds must be left 

for the family of the deceased. It is also true that although the 

legacies rank third in order of priority (i.e. before the heirs) there 

is no elment of compulsion with regard to providing for them by 

will. But these considerations cannot detract from the higher 

religious merit (within the bequeathable one-third) which many 

juch bequests possess ; the more so when his family is reasonably 

provided for. 

Finally. it is worth recalling once more that the basis on which 

the fourth category-of heirs-are to be provided for out of the 

estate emphasize the family as against the tribal relatives and 

within the family, emphasize the immediate agnatic lineal family as 

against the collaterals and the more distant kindred. 

It is in this context that the system of obligatory 

bequests and the system of inheritance by right should be 

compared. 

II. The System of Oblisatory Bequests 

The fullest development of the system of obligatory bequests is 

to be found in the Egyptian law of 1946 which applies to predeceased 

daughters' children as well as those of predeceased sons. 

Briefly the 1946 law provides that the propositus is obliged to 

make a bequest in favour of grandchildren by any son or daughter 

who has predeceased him (if they would not be entitled to any 

share on intestacy) provided that this bequest does not exceed the 

limit of one-third for legacies or the equivalent of the share of the 

predeceased son or daughter whichever is less. Should the grand- 

father fail to make such a bequest the court will act as if he had 

and such an implied or obligatory bequest will have priority over 

any voluntary bequests which the propositus may have actually 

provided for in his will. The main Islamic authority for this 

reform is stated to be verse I1 : 180 of the Qur'an which states : 

"It is prescribed for you when death approaches one of you, if 

he leaves behind wealth the (making of a) bequest for parents 

and relatives equitably as a duty for pious." 

In the earlier verses of the Fourth Siirah2 fixed shares are allotted

to parents and some relatives and other relatives are also provided 

for residually. These verses in the Fourth Siirah are considered to 

have been revealed later than I1 : 180 and to have abrogated the 

earlier one. This is the classical consensus of the four surviving 

Sunni schools and the majority of the Si'i schools where it is 

expressed in the form of the rule : "No bequest to an heir." The 

Ihna 'A&ari school alone permits legacies to an heir, regardless of 

whether the other heirs consent or not, provided such legacies do 

not exceed the bequeathable one-third, nn the grounds that the 

earlier is not abrogated by the later and that the object of the 

earlier revelation was to enable a Muslim by means of legacies 

within the limit of the bequeathable one-third to meet special cases 

of hardship not adequately covered by inheritance portions alone. 

In either case. of course, it remained permissible to make a testa- 

mentary bequest for the benefit of any relative precluded from 

inheriting who. by that token, would most probably be a distant 

relative. But the Islamic permission for legacies to distant relatives 

seem to originate from other Qur'5nic and had?& material 

because I1 : 180. by linking "relatives" with "parents" would seem to 

be referring to close relative^.^ 

However, the proponents of the system of obligatory bequests 

avoid the question of whether orphaned grandchildren are close or 

distant relatives, although maintaining that their authority comes 

from 11 : 180. This verse begins @ 4 ("It is prescribed for you 

. . .") and makes legacies morally obligatory at least, in relevant 

cases. But to make a morally desirable act into a legally enforce- 

able rule and. further, to imply that a testator has made or should 

have made such a legacy as is contemplated in I1 : 180 makes it all 

the more necessary that one should be clear about the class 

of beneficiaries referred to. The identical classes "parents 

and relatives" are in I1 : 180 and in IV : 7 which strongly 

indicates that the same groups of relatives were intended in both 

cases. If, nevertheless, it is maintained that orphaned grand- 

children are "close" relatives not otherwise provided for. it 

constitutes an admission that the rules of inheritances laid down in 

the Fourth Siirah so painstakingly precise for all other immediate 

family members, contain an inexplicable omission with regard to 

orphaned grandchildren. On the other hand, if orphaned grand- 

children are "distant" relatives there is no sustainable juristic basis 

for confining obligatory bequests to them alone. There may well

ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 259 

be other orphaned children related to the deceased or other cases 

of need amongst his relatives not close enough to benefit as heirs 

equally entitled to enjoy the benefits of any system of obligatory 

bequests that might be set up on this basis. 

As long as tbe concept is preserved of a legacy being a 

voluntary disposition by a Muslim of a certain proportion of his 

estate the foregoing questions are not so pressing. The legator, on 

the particular facts of his particular family, bequeathes legacies to 

those deserving special consideration without it being necessary, in 

the case of relatives, to determine whether they are close relatives 

or not (in his own eyes or the eyes of the law). The test for a 

justifiable legacy is primarily need and not the strength of the 

blood-relationsbip. As long as bequests are voluntary dispositions 

the beneficiaries will naturally and justifiably vary from case to case 

and each such case is fully capable of keeping within the true 

Islamic spirit regarding legacies. Thus where P dies at an advanced 

age leaving one living son A and a grandson B by another 

predeceased son C. the grandson being well over thirty at the time 

of P's death and already well-provided for by his own father's 

estate, it may well be that P should provide instead by legacy for 

D, an infant or crippled grand-nephew. For legacies, almost by 

definition in Islamic terms. are primarily for the needy rather than 

the closely related. 

But once this voluntary element from bequests is removed, it 

becomes extremely important to base this third-party compulsion and 

this alteration of the wishes of the deceased upon a consistent princi- 

pleeither of need or of relationship combined with need. Otherwise 

the system of obligatory bequests can easily become. in course of 

time, a means wbereby a Muslim is deprived of dealing with one- 

third of his estate in complete violation of the spirit of legacies. 

Legacies are in fact. also almost by definition, voluntary dispositions 

of a person's estate by will, and the phrase "obligatory bequest" is 

(virtually) a contradiction in terms. 

With these inherent difficulties in the system of obligatory 

bequests, the question arises as to why it was adopted ? The 

explanation seems to lie in the reformers having concentrated their 

attention on trying to disturb the rights of the established heirs as 

little as possible. Where other legacies to the extent of one-third 

had already been made. the amounts to be received by the heirs 

would not be affected at all; the obligatory bequests being extracted


from the estate at the expense of the voluntary bequests made in 

the deceased's will. Where such bequests had not been made, the 

obligatory bequests, while affecting the quantified amounts to be 

received by the heirs, would be extracted, it was thought, from the 

estate in such a way as to be equitably borne by all heirs in 

proportion to their portions. This appears to have been the 

theory. 

But this solicitude for the heirs has been achieved at the cost 

of distorting the theory which lies at the basis of Islamic succession 

law. It will be recalled that there are four distinct categories in 

Islamic succession, namely funeral expenses, debts, legacies and 

inheritances in that order of priorities. The Qur'an is quite 

c!ear that inheritances are to be distributed only after "bequests" 

and "debts" have been paid. Indeed because "bequests" are 

invariably referred to before "debtsw4 in the Qur'an, there was a 

difference of opinion in earliest times on whether they ranked 

prior even to debts. Even after this was settled in favour of a 

higher priority for debts, the problem frequently remained to 

distinguish between a debt and a legacy. Not all legacies have 

been considered equally meritorious and some are not encouraged 

at all5, but certain types of legacies have enjoyed the highest 

Islamic approval. Such meritorious bequests have included one to 

make good deficiencies in zakiit paid by the deceased in his lifetime 

or as expiation for prayers missed or Easts not kept as well as 

bequests to the poor or for the building of a mosque or a bridge or 

an inn for travellers. Bequests have been the last means for the 

deceased to make amends as far as materially possible for any 

shortcomings during life and in that sense are as valid today as they 

were in the past for any one who believes in a hereafter and a day 

of judgment. But now all such testamentary wishes of the deceased 

have to take last place, in the system of obligatory bequests, after 

the satisfaction of inheritance portions and obligatory bequests. 

The question, in fact, remains unanswered as to the justifica- 

tion for disregarding the last wishes of the deceased. Is it on the 

basis of what the deceased ought to have done or what the 

deceased must be presumed to have intended to do ? If the obliga- 

tory bequest is regarded as a morally desirable step, the same is 

also true of the other objects for which legacies are recommended, 

particularly those which are given priority when the bequests 

esceed the bequeathable one-third. It might also be held, for

ORPHANgD GRANDCHILDREN IN ISLAMIC SUCCESSlON LAW 261 

example, that it is more commendable to provide by legacy for a 

disabled infant rather than an adult well-settled in life and that 

these factors should take precedence over whether they are grand- 

children or grand-nephews. If. on the other hand, obligatory 

bequests are based on the assumption that the propositus intended 

to provide for his orphaned grandchildren, this assumption can 

only survive in the absence of specific evidence to the contrary. 

But supposing the propositus actually made provision by will for 

his orphaned grandchild to the extent of, say, one-twelfth of his 

estate, then it is clearly absurd to assume that any oversight has 

occurred. He remembered his orphaned grandchild and provided 

one-twelfth of his estate for him on what, in the particular circum- 

stances of the case, appeared good and sufficient reasons. Yet the 

law, under the system of obl4gatory bequests, steps in after his 

death to alter his testamentary dispositions, raising the legacy to 

the grandchild to one-third of the estate (or the equivalent of the 

predeceased father's share, whichever is less) at the expense of 

other legacies or the living son of the propositus who may have 

been in greater need of the remaining 11/12ths. These are the 

contradictions which arise when the orphaned grandchild's provision 

is based on assumption or need instead of his rights. It is not 

difficult to imagine such good and sufficient reasons for the 

propositus acting as he did when the living son is physically handi- 

capped or mentally retarded while the orphaned grandson has 

attained his majority and has already received an adequate amount 

from his own father's estate. 

The system of obligatory bequests leaves unanswered the basis 

on which orphaned grandchildren are to be provided for. Are they 

provided for on the grounds that they are:close relatives of the 

deceased (inexplicably omitted, directly or by implication, in the 

Qur'snic verses on inheritance) whom it is inconceivable should be 

deprived of a portion of the estate because of this close relationship? 

Or, are they merely distant relatives who are to be provided for on 

compassionate grounds ? Either position raises serious difficulties 

when treated as an obligatory bequest. 

An obligatory bequest introduces an entirely new element 

into the very principles of Islamic succession. being neither 

a legacy nor an inheritance, neither testate nor intestate. and 

the unavoidable uncertainty about how it should be regarded 

is bound to raise in course of time far more difficulties than it.


solves. The only past legal concept to which it can be related 

is the dubious and unfortunate 6T2ah or legal fiction, whereby 

objects not permitted by law were achieved pretending at 

the same time that the law has remained unaltered. The very fact 

that this system has to use the principle of representation to 

ascertain what the predeceased son or daughter would have received 

as heir and the portion due to his or her orphaned child shows that 

an obligatory bequest is a concealed form of inheritance. Even its 

claim to be keeping the shares of heirs unaffected is incorrect, even 

when considered in terms of proportions, as will be shown in the 

cases considered later in IV, below. 

III. The System of Inheritance by Right 

The system of providing for orphaned grandchildren by right 

as heirs of their grandfather is in force in Pakistan as a result of the 

Pakistani law of 1961 whereby it is set out that in the event of any 

son or daughter of the propositus predeceasing the propositus. the 

children of such a predeceased son or daughter shall receive per 

stirps the amount which their parent would have received had he 

or she outlived the propositus. 

In order to understand the Islamic basis of this system it should 

be remembered that in classical law, where the propositus outlives 

all his children, his grandchildren step into the shoes of their 

parents. To this extent, therefore, classical Islamic law recognizes 

the strength of the claims of grandchildren (particularly agnatic) 

as heirs by right in the absence of sons or daughters of the 

propositus. In such a situation their claims are considered stronger 

than other relatives6 subject only to the same limitations in favour 

of fixed Qur'anic sharers which operated to the reduction of the 

residual amount received by the sons of the propositus. Agnatic 

grandchildren are already recognised then as possessing rights as 

heirs in the absence of their fathers or agnatic uncles and it is 

unnecessary to set out here the classical Islamic arguments in 

support of so investing them. The question that concerns us is 

rather the reverse. What is the Islamic justification for excluding 

grandchildren as heirs when one of their agnatic uncles remains 

alive at the time of the death of the propositus or to put this 

another way when their father has died, contrary to the normal 

course of events, before his father ? Not unsurprisingly, there is 

no Qur'gnic statement excluding such grandchildren and the


exclusion is merely a discordant by-prociuct of a classical construc- 

tion of a hadith found in both Muslim and BuaBri on the 

authority of Ibn 'Abbas that the Prophet stated : "Pay the fixed 

shares of inheritance to persons entitled to them. What remains 

thereafter is for the nearest male person." "Nearest" in this 

context meaning, of course, nearest to the propositus. From this it 

is reasonable to deduce that a grandchild cannot inherit from his 

grandfather as long as his own father is alive, the father being 

clearly nearer to the propositus than his son, it being a direct lineal 

descent. But this line of reasoning has no necessary application to 

the uncle of the grandchild. From the grandfather P two lineal 

lines of descent take place represented by his two sons A and B. 

While it is correct to assert that the sons of A, namely Al, A2 and 

A3 are separated from their grandfather in the presence of A, it is 

erroneous to interpose B between P and his grandsons Al, A2 and 

A3 after the death of A. This is to cmfuse two entirely different 

lines of descent: the first from P to A to Al, A2 and A3 and the 

second from P to B to his sons 01, B2 and B3. This distinction 

may not have been so important in times and circumstances where 

the male agnates lived together, the eldest male agnate being the 

head of the larger family unit, charged with responsibilities not 

merely to his sons but also to his nephews and unmarried nieces, 

but this is no longer the case and the distinction between the two 

different lines of descent assumes far greater importance, and it is 

with regard to the changing structure of the family that the had;& 

injunction must be understood. 

Today. even during the lifetime of P, his sons A and B tend to 

start separate families and with P's death these families of A and B 

become completely separate entities and it is inaccurate to describe 

B as interposing himself between P and Al, A2 and A3. The only 

nearer relative who could have excluded Al, A2 and A3 from 

inheriting from their grandfather was A. their father, and with his 

death, there is no !onger anyone nearer in that family line to 

exclude them from inheriting from their grandfather, regardless of 

the existence of an uncle or not. 

To accurately apply the Islamic principle of strengthening close 

family ties in preference to distant family relationships, involves 

paying close attention to agnatic lines of descent, in ensuring that 

such descendants are provided for and in those direct lines paying 

attention to those least removed in terms of generations from the


propositus. To mechanically interpret the exclusion of the more 

remote by the nearer in such a way that the very object of 

strengthening the immediate family is nullified in some lines of 

descent would not be in consonance with Islamic principles and 

would constitute an unwarranted interpretation of these principles 

for the given social situation. 

Even if, however, the rule of the nearer in degree excluding the 

more remote is understood in the classical manner (at the expense 

of the true significance for today of the early verses in the Fourth 

Szitah and the had?& referred to) the fact remains that exceptions 

to this rule are to be found in classical law itself. The mother's 

mother, for example. is not excluded by the father and where these 

two are the only heirs, the mother's mother takes 116th and the 

father takes 516th~ as residuary. A second case is where the 

daughter A and her deceased brother's son B are the only heirs. 

Although A is nearer in degree she fails to exclude B ; A taking 3 

as sharer and B taking the other half as residuary. This failure to 

exclude applies even if it is the son's daughter or the son's son or 

the son's son's daughter and he or she continue to inherit notwithstanding 

the presence of the daughter of the propositus, who is 

many times nearer in degree. A third example is the failure of a 

sister of the full blood to exclude an uterine sister (sister from the 

same mother). Thus. where the heirs are a mother, 2 full sisters 

and an uterine sister (or brother), the mother takes her 116th. the 

two full sisters take 2/3rd equally between them and the uterine 

sister (or brother) takes 116th.' 

Now if the rule of the nearer in degree excluding the more 

remote is powerless to exclude the mother's mother, the brother's 

son and the uterine sister (in the cases given above), how much 

more powerful should be the claims by right of an orphaned 

grandchild when he is related on the male side, is in the direct 

lineal order and is a descendant of the propositus. 

The system of inheritance by right, without seeking refuge in 

biyd or legal fictions or devices, clearly identifies an orphaned 

grandson in his correct position-as a close relative of his grandfather 

and one who is, in normal circumstances, entitled to receive 

in his own right what his father would have received. The system 

correctly identifies the nature of the present-day family greatly 

changed. and changing, as it is from the family of the past and, 

having so understood the present-day family structure, it is


entirely consistent in working out the proportions to which the 

heirs (including the grandchild) are entitled upon the death of the 

propositus. 

IY. The Two Systems in Practice 

The idea that the system of inheritance by right "radically 

upsets the whole structure of the Islamic law of inheritancews 

arises largely because it uses the principle of representation to 

ascertain the portions due to the orphaned grandchildren. But it 

should not be thought that this principle is entirely foreign to 

Islamic succession rules. In the Hanafi school, it is used by Im'im 

Muhammad to ascertain the shares due to distant kindred when 

the intermediate ancestors differ as to sex and in the Ihna 'Ahari 

school it is used on an even wider scale to calculate the shares of 

each heir? The system of obligatory bequests, itself, uses the princi- 

ple of representation to ascertain the amounts due to the grand- 

children according to all three methods advocated (which will 

be explained shortly) for applying the system of obligatory bequests. 

The only difference between the two systems in their use of the 

principle of representation is that in the system of inheritance by 

right the principle is used consistently to give effect to the view of 

the grandson's status on which the system is based. unlike the 

system of obligatory bequests where the principle is used erratically 

with the position of the grandson left undecided. 

This will become apparent in the cases set out below but before 

doing so it is necessary to bear in mind the three variant methods 

advocated for applying the obligatory bequest system. One of these 

methods, although advocated by the Mufti of Egypt, has the effect 

of violating the provisions of the law of 1946l0; the method followed 

by Egyptian courts of first instance results in the obligatory 

bequest not being a bequest at all according to Anderson1] ; and 

the third method advocated by Abo Zahra, as will be shown, does 

not dispel some of the inherent difficulties in this system. The 

existence of this uncertainty about how obligatory bequests should 

be applied may itself be an index of the weaknesses of the system. 

Be that as it may. the three methods for implementing the 

obligatory bequest system are as follows. The first method used 

by some Egyptian courts of first instance (some of whose decisions 

have been reversed on appeal) is described here as the "court 

method" for convenience, It is to distribute the estate as if the son


or daughter were still alive and then allocate their share to their 

children. 

The second method which has received a fatwii in its favour 

from the Mufti of Egypt and is called here the "Mufti's method," 

is described by Anderson as follows'2 : "regard the obligatory 

bequest as a bequest to the grandchildren of the 'equivalent to the 

share' of a son or daughter according to the sex of the deceased, 

and work this out in the way in which such bequests mere 

calculated in the classical Hanafi texts. The example Aba Zahra 

gives of this is where a woman is succeeded by her husband, son, 

daughter and grandfather through a predeceased son. Here the 

Arab method of calculation is to say that the husband takes one 

quarter, the son one half and the daughter one quarter, that 

is 1, 2 and 1 over 4, respectively ; afid if the obligatory bequest 

is to be regarded as a bequest of the 'equivalent to the son's 

share,' the Arab jutists would then allot 2 to the granddaughter 

and increase the denominator accordingly. This means that the 

granddaughter would get 216 of the estate, whereas her father, 

had he survived, would have taken only 6/20. So it is clear that 

this solution runs counter to the explicit provisions of the 

enactment, in spite of the fact that the Mufti of Egypt gave a 

fatwii (or opinion) in its favour." 

Third, and last, is the method advocated by Abil Zahra13 

(called here "Abn Zahra's method") which is to ascertain the exact 

amount which the predeceased son or daughter would have received 

if he or she had survived and having subtracted this (or one-third. 

* whichever is less) from the estate and allotted it to the grand- 

children then divide up the balance of the net estate without 

regard to the predeceased son or daughter on the basis that he or 

she is in fact dead. 

These three methods are only separately considered in the cases 

below when the differences in their results has any bearing on the 

comparison with the system of inheritance by right. 

Case 1 

In this case the propositus P is survived by a son A and a 

granddaughter C through his predeceased daughter B. Anderson 

uses this case14 to illustrate an anomaly in the Pakistan law on the 

hypothesis that the 1961 law attempts to reproduce what would 

happen if B died two minutes after P instead of two minutes before.


But this hypothesis does not seem to be sustainable. The theory 

behind the 1961 Pakistan law is that from the moment of B's death 

her daughter C (in the case in question) assumes her rights. In this 

case, under classical law, the entire amount would have gone to A. 

In the obligatory bequest system (by all three methods) as well as 

the inheritance by right system, the granddaughter C will receive 

113 and A will receive 213 as residuary. 

In classical law, if B had died two minutes after P, C would 

have received only 3 of her mother's 4 inheritance, namely 116, and 

the remaining 3 of 3 would have also gone to her uncle A, but on 

the basis that C assumes B's rights from the time of B's death, C is 

fully entitled to B's share of P's estate, namely 113. 

Case 2 

In this case Anderson shows the contrast between the classical 

system and the 1961 system.15 P leaves a daughter A and a grand- 

daughter C by a predeceased son B. In classical law A receives 314 

(initially 3 and then 114 by radd or "return") and C receives 114 

(initially 116 and then a further lj12 by radd). The 1961 Pakistani 

law allots C, her father's share of 213 (on the principle of double , 

share to the male) and 113 to A. This is entirely consistent with 

the view that the orphaned grandchild C assumed her predeceased 

father's rights from the time of his (B's) death. At the time of B's 

death, A may well have moved into another immediate family (of 

her husband) and importance is consequently given generation- 

wise to the agnatic line from P to B and then to C, where it peters 

out a generation later. The 1946 Egyptian law, however, undecided 

as to the status of C, does not give her the full bequeathable one- 

third or the (213rds) amount her father would have been entitled to 

(although in some other cases either of these methods of calculation 

would have been employed), but restricts C to what classical law 

would have allotted to her, namely 114. Incidentally this situation 

would be fortunate for the deceased's testamentary wishes which, 

presumably, would not be affected under the 19% law in such a 

case. 

Case 3 

Here,16 P is survived by A, his brother and C his granddaughter 

by a predeceased son B. In classical law C would receive her 

maximum .) and the remaining .) would then go to A, her father's 

uncle.

The 1946 law would again disregard her father's share or the 

one-third bequeathable limit and follow the amount due under 

intestacy in classical law, namely 3, for C. 

The 1961 law, following P's direct descendants, would allot to 

his own immediate family the entire amount, i.e. to C, the only 

daughter of P's only son. A by this time may well be a grand- 

parent in his own right and almost certainly a parent, only 

remotely connected with C, the direct descendant of P. 

Case 4 

The more equitable provisions of the 1961 law are even better 

illustrated if instead of one granddaughter C here are a number of 

granddaughters and a brother of the propositus, A. Here, under 

classical law and the 1946 law (which is obliged to follow the 

classical law because the parent's share or bequeathable one-third 

can only come into operation if the grandchildren are not entitled 

to any share on intestacy) the granddaughters have to share equally 

between them 2/3rds, regardless of the number of grand- 

daughters, while the 1961 law enables the granddaughters to share 

equally between themselves the entire amount of the net estate 

which would have been their father's inheritance. 

Case 5 

In this case (also cited by Anderson)17 P is survived by a 

granddaughter C through a predeceased son, A and also a grandson 

D through a predeceased daughter B. 

Under classical law C would completely exclude Dl while the 

1946 law and the 1961 law would both allot ll3rd to D and the 

remainder to C. 

If it is held that this illustrates how the 1961 law upsets the 

classical system, then the same is equally true in results for the 

1946 law. 

Case 6 

The foIlowing case illustrates how the 1946 law of obligatory 

bequests makes a far more serious alteration in the principles of 

inheritance affecting not merely the classical interpretations of 

- 

shari'ah but qlso the shares prescribed by the Qur'sn itself and also 

shows the fallacy in attempting to regard the amount received by 

the grandchild under this system as a legacy. 

P dies leaving A (his widow), B (a son) and D (a grandson by a 

predeceased son C). Under the classical system A received her

fixed Qur'iinic share of 118 and the remaining 718 went to the 

surviving son B, while the orphaned grandson D was completely 

excluded. 

In the obligatory bequest system, all three methods lead to 

unsatisfactory results. 

By the "court method" while the widow's 118 Qur'snic share 

remains unaffected. 7/16 goes to B and the grandson D by receiving 

the remaining 7/16 would receive an amount in excess of the 

bequeathable one-third, thus violating the provisions of the 1946 law. 

By the "Mufti's method", A's Qur'znic share would be reduced 

from 118 to 1/15 while B and D received 7/15 each. Thus not only 

would A's Qur'anic share be cut by nearly half but D would 

receive an amount in excess of the bequeathable one-third permitted 

by the 1946 law. 

By "Abii Zahra's method" D would receive the maximum 113 

permitted by the 1946 law, A's Qur'anic share would be reduced 

from 118 to 1/12 and B would receive the residue of 7/12. In other 

words, B's share has actually increased by one-third through the 

death of C, while A's Qur'iinic share has dropped.by one-third. 

Under the 1961 inheritance by right system, A would continue 

to get her Qur'anic 118, while B and D received 7/16 each. 

To return to the only possible method of working the obligatory 

bequest system, without violating the 1946 law in this respect, 

namely Abii Zahra's, the explanation given for the drop in the fixed 

Qur'znic share (of 118 in this case) is that the Qur'anic proportions 

are expressed in terms of balance of the net estate after tb 

deduction of legacies and that, in the example given above, A 

continues to receive 118 but it is now 118 of 213 (i.e. of the net 

estate less the bequeathable 1/3), or 1/12 of the net estate. But if 

the amount received by the grandson D were in fact a genuine 

legacy, there should have been no change in the proportionate 

amounts received by the widow A and the surviving son B and, 

indeed, a test of whether what is claimed to be a legacy is in fact 

actually a legacy is whether the proportions of the heirs inter se 

remain unaffected. For example. in a case where A the wife and B 

the son are the sole heirs of P, after P had in fact made a true 

legacy to the extent of 113, the original ratio of shares between A 

and B of 118 to 718 i.e. 1 : 7 would remain unaffected by the legacy 

and A and B would thereafter expect to receive 213 of 118 and 213 

of 718 respectively, i.e. 1/12 and 7/12. which remains a ratio of 1 : 7.


But in Abo Zahra's method (the only legally possible method) of 

working the obligatory bequest system in case 6, this ratio between 

the heirs inter se is affected considerably. Before C's death, the 

presumptive proportions between A and B were 118 and 7/16 (i.e. 

2 : 7) with C receiving the other 7/16. But after C's death and the 

prospective coming into effect of the obligatory bequest, the pre- 

sumptive proportions between A and B become 118 and 718 (i.e. 1 : 7) 

and B's share has doubled in proportion to A's. The reason for the 

obligatory bequest affecting the proportions of the heirs A and B, 

inter se, is that the obligatory bequest is not a bequest at all and is 

in fact a concealed inheritance. 

Taking the same case, the unfortunate effects of the obligatory 

bequest are better appreciated when an actual situation is considered 

and the shares are expressed as percentages. 

P has two sons B and C and his wife A while C has a son D. 

A can expect to receive 12.5% (118) of P's estate, if P should 

predecease her. This is as the Qur'an intended, that A's share 

should not be affected by the subsequent changes that might take 

place in the composition of the family and would never drop if she 

is widowed below the minimum of 1'8 of the inheritance portions. 

Thereafter one of their sons, (C) dies ahead of his father and, 

therefore, in all likelihood prematurely. Now by Aba Zahra's 

method A finds her share reduced from 12.5% to 8.33% (1112 of 

the estate). Explained on the grounds that the death of C 

calls for sacrifices, this might have been acceptable even though her 

fixed share was not as fixed as it was thought to be, but on turning 

to consider the position of the other heir, B, it is found that C'S 

death so far from adversely affecting his share of 43.75% (71161, has 

actually raised it to 58.33% (7112) ! 

It would seem that in such circumstances the attempt to explain 

away the contrasting effects of D's obligatory bequest on A's 

16 

fixed" share and B's residual portion will not be at all convincing. 

If the 113 to D had been, in truth, a legacy, the shares to A and B 

should have increased or abated proportionately. 

The misfortune of the son's (C's) death becomes a further 

burden on the widow A on the death of her husband P while the 

other son B actually benefits materially thereby, proportionately 

and in absolute terms. This is neither the letter nor the spirit of 

the Islamic principles of inheritance and succession.


Case 7 

One further case deserves consideration and that is where it 

might at first appear that the 1961 law also affects the Qur'gnic 

share and this is when P is survived by a daughter A, the child B of 

a predeceased second daughter, and C, a distant agnatic cousin. 

Under classical law, A and C would have received 4 each, the 

grandchild B receiving nothing, but under both the 1946 law (by 

all three methods) and the 1961 law P's net estate is shared equally 

in thirds by A, B and C. 

Yet, in fact, the 1961 law is complying with the minimum for 

daughters prescribed by the Qur'iin, when more than one, namely 

213 which is to be shared amongst them as was the case until the 

second daughter died. The Qur'anic share which A originally 

expected to receive (of 4 of 213) she continues to receive and by 

the death of her sister, B's mother, she is not enabled (under the 

1961 law) to gain the sort of benefit which she would have 

expected to receive if she had been the only child throughout, 

namely 3 of the net estate and the orphaned grandchild B assumes 

by right his or her mother's share. 

Under both the 1946 and 1961 laws, the amount received by the 

distant agnatic cousin is a more accurate reflection of his relation- 

ship to the deceased propositus (namely 113) then the half portion 

allotted to him in the classical system at the expense of the 

propositus' own direct descendants. 

V. Summary 

It is unnecessary to recapitulate here all the reasons which have 

impelled an increasing number of Muslim countries to provide by 

law for orphaned grandchildren who were excluded from inheriting, 

under classical interpretations of Islamic law, from their grandparent 

in the presence of a Iiving brother of their deceased parent. 

It is sufficient to recall that Islam places great emphasis on the 

family as the foundation for a healthy community and seeks to 

preserve this family against the inroads of tribalism on one side and 

an unbridled individualism, on the other. The family has also been 

increasingly affected by the changing nature of society produced by 

the growth of impersonal cities, an industrial civilization and a 

constant movement of population, which changes have adversely 

affected the protection afforded to orphaned children by their


deceased parent's brothers and sisters as was normal in the larger 

family groups of the past. 

Two contrasting solutions, according to Islamic principles, have 

been applied to this question of orphaned grandchildren. The first 

is the system of obligatory bequwts, of which the 1946 Egyptian 

law is the most notable example and the second, the 1961 system of 

inheritance by right which has been applied in Pakistan. 

Both have their juristic origins in Islamic sources and legal 

principles. The system of obligatory bequests seeks to justify itself 

by an interpretation of Qur'gnic verse I1 : 180, which interpretation 

is by no means consistent, while the system of inheritance by right 

seeks to justify itself by exposing a lacunae, even contradiction, in 

classical rules of interpreting the Qur18nic and haid& references as 

they find expression in the exclusion rule. 

While the 1946 Law avoids the question of the status within 

the family of the orphaned grandchild, the 1961 Law squarely 

identifies him or her as a close relative. This indecisiveness of the 

1946 Law leads to it shifting ground from case to case with regard 

to the basis on which the grandchild is to be provided for, 

particularly in estimating the portion of the estate to which the 

grandchild is entitled ; while the 1961 Law consistently applies the 

consequences of regarding such an orphan as having assumed his 

or her parent's rights vis-a-vis the grandparent, from the time of the 

parent's death. 

The changes brought about by the 1961 Law in the shares of 

the other heirs are, therefore, entirely consistent with this view of 

the grandchild's status within the family. even where they signifi- 

cantly affect the classical dispositions, while the 1946 Law in an 

attempt to avoid disturbing the rights of the other heirs (unsuccess- 

fully) attempts to provide for the grandchild out of the bequeathable 

one-third. In introducing the question of legacies, the 1946 Law 

makes a much more far-reaching disturbance of Islamic succession 

rules, affecting not merely objects within a class but the classes 

themselves, particularly the class of legacies and the class of inherit- 

ances. In doing so, the 1946 Law creates an entirely new-almost 

self-contradictory-class of "obligatory1' bequests, which cannot 

be subsumed under the classes of debts, legacies or inheritances. 

In actual practice, the so-called legacy to the orphaned grandchild 

shows itself to be, in truth, a concealed inheritance portion, a 

hilah or legal device, which fluctuates arbitrarily vis-a-vis the other

ORPHANEDGRANDCHILDREN IN ISLAMIC SUCCESSION LAW 273 

heirs (let alone legacies) and seriously disturbs the rights of the 

other heirs inter se even those of the "fixed" Qur'anic sharers. All 

this is, of course, in addition to the total violation of the deceased's 

last testamentary wishes which Islam considers to be of the 

highest religious merit when they are for certain purposes and 

within the bequeathable limit of one-third of the net estate. 

The principle of representation, however sparingly used in the 

classical system, is nevertheless not unknown there and this princi- 

ple, whatever its implications, is necessary for the application of 

the 1946 Law as much as for the 1961 Law. This is so whichever 

method is adopted for applying the 1946 Law. There are three 

such methods that have been used or suggested, two of them 

leading to violations in practice of the provisions of the 19% Law 

itself (which provisions cannot be dropped from the 1946 Law 

without destroying the fiction that a legacy has been created), while 

the third method by also disturbing the rights of the heirs inter se 

shows the true nature of the 1946 Law, of dealing not with legacies 

but concealed inheritance portions. 

If the strengthening of the agnatic family in its direct lineal 

order from generation to generation is an enduring Islamic family 

ideal, then the 1961 Law is fully in harmony with this. In contrast, 

the 1946 Law hesitates to commit itself as to the orphaned grand- 

child's status within the family and, as a result, finds itself in a series 

of contradictions which obtrude in the controversy as to which 

of the three methods should be adopted for applying it, by the 

consequences of trying to cloak an inheritance portion as a legacy 

and by the erratic results it produces, sometimes being based on the 

bequeathable one-third, sometimes on the predeceased parent's 

share and at other times on amounts provided in intestacy under 

classicaI law. 

NOTES 

1. See e.g. IX : 24, where the prior claims of Islam over the family are asserted. 

2. IV : 7-12 read with IV : 177. 

3. 41j'YI literally means only a "close" relative. which, of course, further 

strengthens the foregoing arguments. 

4. See one reference in IV : 11 and two in IV : 12. 

5. In addition there are invalid legacies e.g. to a gambling casino. 

6. This is particularly true of direct male descendants ; descendants through a 

female having entered. by this generation, another family grouping altogether. 

7. Thesedivergences of classical law from the exclusion rule were pointed out 

by the author in his booklet Islamic Family Law in Pakistan (Karachi. 1964)


at p. 9. Mufti Wali Hasan Tonki, in a reply thereto which was published as a 

supplement to the Karachi Urdu monthly BayyinZt (Rabi al-Bani. 13851 

August, 1965 issue) entitled "Height of Ignorance of the Present Generation" 

explained, at pp. 11-12, these classical divergences from the exclusion rule 

by the fact that the Qur'en itself gave these reIatives fixed shares aIthough 

they were remoter in degree, in all three cases. This explanation. of course. 

only confirms the impermissibility of a total commitment to the exclusion 

rule. 

8. J. N. D. Anderson in his article "Recent Reforms in the Islamic Law of 

Inheritance" which appeared in The International and Comparative Law 

Quarterly, (London. April 1965). Vol. 14. Pt. 2, p. 357. 

9. See, for example. D. F. Mulla's Principles of Mahomedan Law (Calcutta. 1961) 

pp. 74 and 96-97 of 15th edition. 

10. See Anderson, op. cit., p. 361. 

11. Anderson, op. cit.. p. 360. This method also violates the 1946 Law as 

evidenced in case 6. below. 

12. op. cit.. p. 361. 

13. Professor of Islamic Law at the University of Cairo, 

14. op. cit., pp. 356-357. 

15. op. cit., p. 357. 

16. ibid. 

17. ibid.

ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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