Zahid Ahmed Hero
The Muslim law of inheritance, in other words the Muhammadan law of succession primarily consists of rules laid down in the Holy Quran as well as customs, usages and laws of the land at its second phase. Sometimes it was inculcated by the teachings of our Prophet. This branch of the law is distinguished in the language of the Arabic lawyers by the term ‘faraiz’ i.e. Ordinances of God because the holy Quran is fuller and more explicit on this particular subject than any other source and where the Quran is silent as to any rules of succession that is established by customs, usages, judicial interpretations as well as by civil laws i.e. laws of the land. Our prophet terms the knowledge of law of inheritance as half of all useful knowledge.
Rights of inheritance arise only after the death of the person whose estate is in question; i.e. subject to partition; and no person is the heir of a living Muslim.
Heritable property means only those property which remains as the heritable property of the deceased at the time of his death, deducting his funeral expenses, debts and legacies. Muhammad Saif is the son of Mr.Karim Dewan, who was the elder son of Mr.Taib Ali Dewan,but Karim Dewan died in 1955 leaving behind his only orphan son Mohammad Saif and Taib ali Dwean died in 1984 leaving behind his 4 sons and one widow after the death of his elder son Mr.Karim Dewan. The grand-son Mohammad Saif was alive at the time of death Taib Ali Dewan.
Now Mohammad Saif appeared and claiming to be one of the heirs of his grandfather but the heirs (his 4 sons and widow) of Taib Ali Dewan denied his (orphan Md. Saif) rights of inheritance on the ground that his father Karim Dewan was not alive at the time of death of his grandfather further more he died before the death of his father, that’s why his orphan son shall not be entitled to inherit from his grandfather since the rights of inheritance of his father has not been accrued yet.
Now the burning question arises under Muslim Shariah Law whether Mohammad Saif being an orphan will be entitled to inherit from his grandfather or not ?
According to pure Muslim Shariah Law Md.Saif will not be entitled to inherit from his grandfather, because his own father died before is grandfather since succession opens after the death of his randfather but at that time his father was not alive. So the rights hich is yet to accrue, how it will be transferred to his escendants?
But according to Section 4 of the Muslim Family Laws rdinance 1961 Mohammad Saif the orphan is entitled to inherit rom his grandfather that share of the property which had his ather been alive at the time of his grandfather’s death his father ould have been entitled to this share.
Section 4 of the Muslim Family Laws Ordinance 1961 eads thus:
“In the event of the death of any son or daughter f the propositus before opening of the succession, the hildren of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share quivalent to the share which such son or daughter, as the ase may be, would have received if alive” ow question may arise that the said rdinance came into force in 1961 but Karim ewan died in 1955, then whether his orphan on will get benefit of this ordinance or not?
The approach to this query would be the date of death of the son f the propositus, whether it was before or after the coming into orce of the ordinance is immaterial. It is the date of opening of uccession which is of material importance. The propositus died in 1984, whereupon succession to his property opened; and had is son karim Dewan been alive at that time, he would have nherited the share now claimed by the orphan Mohammad Saif.
So the succession opens after the promulgation of the Ordinance f 1961 since Taib Ali Dewan died in 1984 and according to this rdinance the orphan will get equivalent share of his deceased ather. Rights of Inheritance of an unborn baby: ven a child in the womb of its mother is legally competent to nherit; provided that it is born alive. So subject to this proviso an unborn baby in the womb is also a legal heir of the property of his ather.
But a person who is not a Muslim cannot inherit from a Muslim t the end of the discussion it is pertinent to say that sharia Law n these special circumstances where son dies before father irected to the grandfather to make a mandatory will in favour of the orphan son of his deceased son. But people are very reluctant o obey that direction because of extreme greediness, and due to his perspective Muslim Family Laws Ordinance 1961 was passed o meet this exigency and to secure the life of orphan by ensuring is father’s equivalent share to him. So there is in fact no tussle of he provision of Section 4 of the Ordinance with the Shariah Law I think.
LL.B(HON’S) 1 ST CLASS
LL.M 1 ST CLASS
Dhaka University
Advocate
Supreme Court of Bangladesh