Inheritance muslim law
renuka
(Querist) 01 January 2013
This query is : Resolved
Sir, A Sunni family in India, A Grandmother is survived by only a daughter and her only son predeceased her with a grandson and a daughter, what is the share of daughter, as we know orphaned granchildren are not entitle for any share, Is there any exception if a grandson is there, Any share for grandson or he is completeley excluded even if only a daughter/aunt is survived ?
Adv.R.P.Chugh
(Expert) 02 January 2013
There is no theory of representation in Shariat inheritance law, and the nearer excludes the farer. In presence of daughter - pre-deceased's child does not get anything.
Raj Kumar Makkad
(Expert) 03 January 2013
I disagree with the opinion of Bharat. If a Muslim female has been survived by the sole alive daughter and the children of predeceased son then the daughter shall be entitled for only 1/2 share and rest 1/2 share shall go in the proportion of 2:1 in favour of sons and daughters of the predeceased son.
This is the only exception of general law.
renuka
(Querist) 04 January 2013
Dear Rajkumar Sir,
I have seen your replies for a similar question, in that Grandmother was survived by 2 daughters and the only son had predeceased her with a grandson and a daughter, there you have replied like, 2 daughters are entitled for 2/3 rd share and remaining 1/3rd will go to brothers and sisters of grandmother, and you had replied that these orphand grandchildren doe not comes under residuaries, then how come it changes if only one daughter survived..Pls clarify
Raj Kumar Makkad
(Expert) 04 January 2013
The subject matter is, “The Principle of Representation” and the case you have highlighted is, “The Inheritance Share of the Orphaned Grandchild.”
The “Principle of Representation” is not recognised by traditional Sunni Islamic law. Representation means a more distant relative steps into the shoes of a nearer relative (e.g. a son representing his father) and inherits in an identical manner to the individual he represents.
In Shariah only heirs alive at time of death are entitled to inherit, they cannot be represented by someone else who has died before the propositus. This means that if a man dies leaving behind a son and a grandson through a predeceased son, the grandson is totally excluded by the son. This is based on the cardinal principle that the nearer in degree to the deceased excludes the one who is more remote in the same class of heirs. Some Muslim states in recent times have modified the traditional Islamic law by introducing the principle of representation to a limited degree as they fear hardship for the orphaned children of the predeceased son or daughter.
It is also important to differentiate between substitution and representation from a Shariah point of view.
Contemporary Islamic Law
In Pakistan limited representation is allowed by Section 4 of the Muslim Family Laws Ordinance 1961. This allows the orphaned grandchild to inherit on a per stirpes basis when he would otherwise have been excluded by traditional Islamic law. This Section of the Law was modified as a result of a court case settlement in the Lahore High Court (?1974). I do not have the details at hand.
For contemporary Islamic law regarding ““Principle of Representation” in other countries it is quite a while since I read about this subject and my info. may be out of date.
Egypt, Tunisa, Syria and Morocco also allow limited representation by the orphaned grandchild. The details in which the this law operates is slightly different from country to country. In Egypt and Tunisa a limit of a maximum of one-third of the net estate is enforced. In Egypt the children of the agnatic grandson and agnatic grand-daughter h.l.s also benefit from this rule.
The other method in which the situation of the orphaned grandchild has been addressed is by way of an obligatory bequest e.g. Egypt. The Egyptian scholars have disagreed amongst themselves as to how to implement the obligatory bequest for the orphaned grandchild.
