ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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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 granddaughters, 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.
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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