ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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266 KEMAL FARUKI 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 grandchildren 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.
ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 267 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 granddaughter 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.
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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