Thirty  four

Question of inheritance of the Orphaned Grandson

''If the deceased person has a son, the orphaned grandson of the deceased will be denied of the right of inheritance. Isn't this law irrational and is it an injustice towards the orphans? Can Islam which gives great importance to the care of orphan do it? So isn't the existing system of inheritance unislamic and against the spirit of the Quran?
Certainly Islam gives great importance to the care of orphans. The disregard to the orphans is denial of faith. Allah tells: "Seest thou one who denies the judgment (to come)? Then such is the (man) who repulses the orphan (with harshness) (107:1, 2)
Even harsh behaviour towards an orphan is considered a sin. Addressing the prophet Allah says: ''Therefore, treat not the orphan with harshness, nor repulse the petitioner (unheard) (93: 9, 10)
Wherever the Quran has mentioned the right of inheritance it has used the phrase ''wealth left by'' (4:7,176) and it consists of three rules.
1. In Islam the inheritance becomes a right of the inheritor only after the death of the person whose wealth is inherited. During his life time, no one has any right in his wealth.
2. Inheritance becomes a right of those inheritors only who are alive at the time of the death of the person whom they are inheriting.
3. The inheritors who died before the person will have no right of inheritance, for the same reason that they died before the inheritance was formed.
Allah has accepted kinship as the basis of inheritance as revealed in the verse ''from what is left by parents and those nearest related''. Six laws are essentially related to this statement.
1. The close kins of the deceased will prevent the right of inheritance of the distant relatives.
2. In the division of inheritance, what is considered is not the economic condition of the inheritor, but his relationship with the deceased.
3. The criterion accepted in the division of inheritance among the inheritors is not their needs or necessities, but the relationship with the deceased.
4. Father and mother, husband and wife, son and daughter are considered the close kins of the deceased. If they are alive others cannot become inheritors.
5. The law being as mentioned above, the grandfather will not be the inheritor if father is alive, and grandmother cannot inherit if the mother is alive. Similarly if the son is alive the grandson cannot become the inheritor.
6. If the grandfather inherits in the absence of father, and grandson in the absence of son, they inherit so not as representatives of father and son. They become inheritors because in the absence of the close links in kinship, the right passes to the next link in kinship.
For the reasons cited above if the sons of the deceased are alive, their sons (the grandsons of the deceased) will have no right of inheritance, as well as the orphaned grandsons. As inheritance is related to the immediate kinship, it will not pass to grandson, a distant link. This rule has been followed and observed by all, and it was deduced by the authentic scholars from the Quran and the prophet's tradition.
The problems of the orphaned grandchildren cannot be solved, or justice done, by laws alone. This is true not only of Islam, but of all systems of law. In order to make it more clear a few instances are given below.
1. Suppose the deceased has four sons. The eldest aged 28 is an engineer who owns his own house and other properties. The second, aged 24 is a doctor who is well off. The third son aged 12 is a student, and the youngest is only 4 years old. If we take complete justice as a basis for the division of the wealth of the deceased, since the elder two sons have their own income the entire wealth should be distributed among the third and fourth sons depending on their difference in age. However no judicial system suggests such a division of the inheritance. It is also not practical.
2. Suppose, of the two sons who are inheritors, one is handicapped and therefore unable to work, and the other is physically strong. So justice demands that a lions share of the inheritance must be given to the weak son. However the inheritance will be divided equally between the two, and there is no legal system in the world that apportions the inheritance depending on the physical condition of the inheritors.
3. Children of the same parents need not be equal in the level of intelligence and other capabilities. Some may be extra brilliant while others far below the average. The intelligent and capable ones can earn and live in comfort. But based on it no law regarding inheritance says that the capable one's share should be reduced. Apportioning of inheritance based on the ratio of the inheritor's intellectual capability is not practical.
So mere laws can't implement perfect justice for the problems of the orphaned grandchildren. So Islam has focussed its attention on peoples' belief in the life hereafter, on their sense of virtues and their feelings of compassion. Only by evoking such beliefs and feelings can economic equity be implemented.
It is only by the theory of representation that the orphaned grandsons of the deceased become eligible for inheritance while the son of the deceased is alive. By this theory the dead son is considered alive, and in his place, his sons are given a portion of the inheritance. For example suppose `A' has two sons; B and C. D, E, and F are the sons of B, who died while his father A was alive. Then after the death of `A' `B' is considered alive, and instead of him his children D, E and F are given inheritance along with `C'. Then the three children of B together will get a portion of inheritance equal to that of `C'.
Islam has not accepted this system of representation for the simple reason that it has a number of anomalies such as:
1. If the representative system is adopted anywhere in inheritance, the same should be compulsorily adopted in all other aspects - including in the case of husband and wife. If the wife dies after the death of the husband, the husband's portion in the inheritance of the deceased wife should be given to the nearest relatives of the dead husband. If the husband dies after the death of his wife, the wife's portion should be divided among her nearest kins like father and mother. No one will argue this method to be followed.
2. If someone, whose father is not alive, dies, then, at the division of inheritance, it should have to be distributed among the kins of his dead father, considering all of them as his representatives. For example `A' has three sons, B, C and D. Among these sons `B' has E, F, and G as sons. `A' died earlier. Then when `B' dies, and if his wife, mother, grandfather and grandmother are not alive, his whole wealth will go to his successors E, F, and G. But on accepting the system of representation, we will have to consider `A' alive and allocate him 1/6 and then considering B, and C as representatives of A, this portion will have to be given to them. Similarly the close kins of the mother, who died earlier, will have to be treated as her representatives, thereby making them eligible for 1/6 and the dead wife's kin will have to be treated as her representatives, who deserve 1/8 of the inheritance. By doing so the laws of inheritance which are very systematic and rational will become haphazard and irrational. The representational system meant for the benefit of orphaned grand children, will channelize their wealth to other relatives and it will have unintended impacts.
3. While formulating a new law, that has not been mentioned or hinted at either in the Quran or in the tradition of the prophet, in the absence of authentic basis, it should have at least some intellectual validity. If the system of representation is accepted only in the case of orphaned grandchildren, and rejected in other cases there must be some proof or justification. So far no one has put forth any justification.
4. Accepting the theory of representation is like arguing that rights of brothers, sisters, uncles and their sons for inheritance are unwanted. Because, if the father of the deceased is alive, his brothers and others will be prevented from inheritance; after apportioning the inheritance among other inheritors, the rest will go to the father. By the theory of representation, even if the father is not alive, he is considered alive and his nearest kins will be treated as his representatives and they will have to be given inheritance. By doing so the eligibility of brothers, sisters and others for inheritance will become null and void, and there will also be serious alterations in their shares.
5. The theory of representation alters the shares that Islam has decided for the grandsons. For example A has two sons; B and C. `B' has a son `D', and `C' has three sons E, F and G. Suppose `B' and `C' died before `A'. When A dies, according to the law of Islam all grandsons D, E, F and G have equal rights for inheritance. If we accept the theory of representation the share of `D' who represents `B', and the shares of E, F, and G together who represent `C' will be equal. It will disrupt the system of inheritance, and moreover such a division will be very unjust.
6. An important basis of inheritance in Islam is the obligation for mutual protection. When the son is alive, the grandson is not legally obliged to protect the father. But the protection of the grandson is the duty of the grandfather. If the grand father is not alive this duty falls on the paternal uncle. For the same reason the grandfather inherits the grandson. On accepting the theory of representation such basis will be totally broken or representing his father, the protection of grandfather will become the duty of the grandson. While the son is alive it is unjust to impose such an obligation on the orphaned grandson.
In the ancient Arabian communities not only the orphaned grandsons, but also the orphaned sons had no right of inheritance. Only the adult sons received inheritance. However Islam allowed this right to all children, including the fetus. However as per the laws of inheritance in Islam which are secure and systematic, for the justifiable reasons explained here, the orphaned grandson is not eligible for inheritance, if other son or sons are alive. Such a situation did not create any problem in the ancient tribal societies. The strong tribal bonds bound people together and ensured the protection of all its members. In those days the orphans were well protected by their guardians. The close kins or the orphans like grandfathers, and uncles never neglected them at all. It is well known that the prophet lost his father before birth, and he was subsequently looked after by the grandfather and after him by the paternal uncle. His uncle not only looked after him well, but also loved him more than he loved his own sons and in a very unfavourable condition he stood by him and therefore had to court the enmity of the elite class. The strong familial bond and tribal feelings had played a big role in creating this situation. This traditional family system continued after the emergence of Islam, and for this reason the problem of inheritance of the orphaned grandchildren was not even discussed until recently.
Today the old tribal consciousness has faded, and the guardians are careless for the protection of the orphans. So there is a strong view among scholars that the question of inheritance of the orphaned grandchildren should not be left merely for the love, mercy and compassion emerging from belief in the hereafter or for other virtues of persons. Such a view raised much hue and cry in the Islamic world and resulted in a few legislations. However many of such laws are against the spirit of Islam and they have some basic defects as well.
However many contemporary scholars have agreed that this problem requires an Islamic solution. The question is how it becomes possible within the framework of the Islamic system of laws. In this context the view held by many scholars of the past that bequeath must be compulsorily made for the near kins who are prevented from inheritance is very relevant. This view was adopted by scholars like Thavoos, Qatada, Hasan Basari, Jabir, Abu Mijlas, Masrooq, Iyas, Ibnu Jarir, and Zuhri. The famous scholar of jurisprudence Ibnu Hajar al Asqualani also holds the same view. There are scholars like Ibn Umar, Talha, Zubair, Abdullah Ibnu Ubayyu, Sha'abi, Athau, Ishaque, Tabari and Dawud who do not agree to the view that with the revelation of the verses dealing with laws of inheritance, the verse making bequest compulsory became invalid.
The grandfather is morally responsible to bequeath on the orphaned grandsons. Many present day scholars are of the view that they should be compelled for it. Renowned scholars like Egyptian author Muhammad Abu Zahra Muhammad Zakariyyal Bardeesi have favoured such legislations.
Regarding this Abu Zahra has given clear guidelines. According to him the portion of inheritance which the orphaned grandsons father would have got if had he been alive, or 1/3 of the total wealth which is the upper limit allowed for bequeath, whichever is less, should be taken from the wealth of the deceased person and given to the orphaned grandchildren, and the remaining wealth must be apportioned among the real inheritors. For example, the deceased person has one son, two daughters, father and mother and also the orphaned daughter of his dead son. In this case his father and mother are eligible for 1/6 of the total wealth and the remaining will go to his children. Had his dead son been alive he would be eligible for 2/6 of the remaining wealth, or in other words for 4/18 of the total wealth. As 4/18 is less than the maximum allowed limit for bequeath, this will be taken from the total wealth and given to the orphaned granddaughter, and what remains will be apportioned among other inheritors. Now suppose the deceased person has a son, and son of his dead son (grandson). In this case considering his dead son alive, the grandson should not be given half of the wealth, because it is larger than 1/3, the maximum limit allowed for bequeath. In this case 1/3 should be earmarked for the grandson. We need not refute the view that the grandfathers may be legally enforced to bequeath on the orphaned grandchildren.
In countries like ours where bequeath is not made compulsory, when son or daughter dies leaving behind their children, the grandfathers must strictly bequeath on the orphaned grand children. If the question of orphaned grandchildren could be solved thus, it will pave the way for the protection of orphans which is given great importance in Islam. It must be mentioned that the scholars who do not hold the view that bequeath is compulsory on the near kins who are prevented from inheritance, have expressed their view that it is certainly a virtuous deed.