ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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262 KEMAL FARUKI 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
ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 263 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
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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