ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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.