Inheritance Law in Case of a Father's Death Preceding the Grandfather - Tanzina Fardoush's Regular Column

 

Legal Advice column 

by Tanzina Fardoush

LAW & RIGHTS

Inheritance Law in Case of a Father's Death Preceding the Grandfather

(published in Shobdo Mukur e-mag Ashar edition. Full version and monthly columns are available in shobdomukur.com)

Sharia Law:

According to Islamic Sharia law, if a father dies before his own father (i.e., the grandfather is still alive), the children of the deceased father are not entitled to inherit from the grandfather's property.

Muslim Family Law Ordinance:

However, Section 4 of the Muslim Family Law Ordinance of 1961 provides a different approach. It states that if a father dies during the lifetime of his father, then his children (i.e., the grandchildren) shall inherit from the grandfather after his death, representing their deceased parent's share. The children will inherit exactly what their father or mother would have inherited had they been alive. This rule applies equally to both sons and daughters- there is no discrimination based on gender.

What Islamic Teachings Say:

There is considerable debate regarding whether grandchildren are entitled to inherit from their grandfather’s estate if their parent (the grandfather’s son or daughter) dies before him. Some interpretations of Islamic law refer to Surah An- Nisa, Verse 176 of the Qur’an, which clearly specifies the shares of inheritance for each category of heir. Allah warns that deviating from this divine distribution is a serious transgression and will result in severe punishment.

Allah says:

 “Allah makes clear to you (the laws of inheritance), lest you go astray. And Allah is All- Knowing of everything.” (Surah An- Nisa, Ayah 176)

Our Prophet Muhammad (peace be upon him) also emphasized:

“Half of necessary knowledge is the knowledge of inheritance.”

Example 1:

To clarify the issue of inheritance rights of orphans in a grandfather's property, let us consider an example:

Mr. Ali had a son named Rahmat who died during Ali’s lifetime. After Ali passed away, a dispute arose regarding whether Rahmat’s son, Masum, had any right to inherit from his grandfather Ali’s estate. Masum's uncles (Ali’s surviving sons) wanted to deprive him of the portion his father would have received.

As per Islamic Sharia law, Masum would not be entitled to any share. However, under the Muslim Family Law Ordinance, 1961 (Section 4), Masum is legally entitled to inherit his father’s share from his grandfather's estate, even though his father died before his grandfather. This share is given without any discrimination between male or female descendants.

Example 2:

Here is another case to illustrate the matter:

Mr. Selim had six sons and one daughter, named Rima. Rima passed away in 1955, leaving behind her only daughter, Mim. Several years later, in 1984, Mr. Selim also died. This raises the question: Does Mim have any right to inherit the share her mother Rima would have received from Selim’s estate?

A landmark case provides clarity:

In Sheikh Ibrahim & Others vs. Nazma Begum, reported in 44 DLR (AD) p. 276, the court ruled that whether the deceased son or daughter died before or after the enactment of the 1961 Ordinance is not the primary issue. Rather, the key factor is when the succession was opened, when the property owner died.

Since Mr. Selim died in 1984, which is after the enactment of the 1961 law, succession opens from his death. Hence, Mim is entitled to the share that her mother Rima would have received, had she been alive.

Sharia Law vs. the 1961 Ordinance:

The Muslim Family Law Ordinance, 1961, introduced by the then Pakistani ruler Ayub Khan, diverges from classical Islamic jurisprudence in this regard. Section 4 of the ordinance states:

“If a son or daughter of the deceased had predeceased him, and that deceased child had left behind children, then those children shall inherit, in representation of their parent, the share their father or mother would have received had they been alive.”

In contrast, Sharia law holds that if the father dies during his own father’s lifetime, then his children (grandchildren) are excluded from inheritance if uncles or aunts are alive.

Legal Steps to Take:

In many such situations in our society, when a father dies and the grandfather lives on and later passes away, the grandfather’s other heirs- such as the deceased father’s siblings- often claim that the orphaned grandchildren are not entitled to any share of the grandfather’s estate.

If such disputes arise, the orphaned grandchildren can file a civil inheritance lawsuit in the relevant Sub- District (Upazila) Civil Court. According to the 1961 Ordinance, the court may grant the deceased parent's rightful share of the grandfather’s property to his or her children. In essence, the grandchildren will inherit what their deceased parent would have inherited- no more, no less.

This provision ensures fairness and intergenerational justice, offering protection to orphaned grandchildren and correcting the gaps where classical Sharia law, as traditionally interpreted, might exclude them.

© Tanzina Fardoush

Published in Shobdo Mukur Ashar Edition, 1432

Available in shobdomukur.com

This column is published monthly on different important everyday concerns related to the legal system of Bangladesh. Tanzina Fardoush is a practicing senior advocate in the Bangladesh legal system. The advice given here are not to be taken as professional and complete advice. The column is only intended for reading to acquire preliminary and fundamental knowledge on particular legal matters, as chosen by the author. For complete professional advice on very bespoke and particular legal matters, a legally eligible personnel must be professionally consulted.