Javed Ahmad Ghāmidī
The Qur'ān has not explicitly mentioned the share of a grandfather in the legacy of his grandchild nor that of a grandchild in the legacy of his grandfather. However, since the words أولاد (awlād) andآبا(ābā) can refer both on the basis of meaning and usage to grandparents and grandchildren there has remained a consensus among Muslim jurists that if none of the direct parents or direct children are present, then the shares which have been fixed for them will be given to indirect parents and indirect children respectively.However, one situation which can arise is that one or more children die in the lifetime of a parent and one or more children is alive after his death. The ijtihād of the jurists in this case is that the offspring of the deceased children will not be given any inheritance from the grandfather and in the presence of their paternal uncles they will be deprived of it except if the grandfather has made a will in their favour. In current times, some scholars are of the opinion that this ijtihād of the jurists seems incorrect. A grandson is like a son and hence in the event of a son's death, he should get the share that his father would have got had he been alive. In my opinion, this opinion is correct. Consequently, in the following paragraphs I will try to answer the objections raised on this view by Mawlānā Sayyid Abū al-A'lā Mawdūdī a revered and respected scholar of Islam. Following are these objections:
1. As per the Qur'ān, whoever gets a share in the inheritance of a deceased is entitled to it because he is near in kin (aqrab) to him and not because he is a substitute of some other kin. Thus the suggestion of granting a share to the grandchild from the inheritance of his grandfather introduces the very wrong notion of substitution in the Islamic law of inheritance of which there is no evidence found in the Qur'ān. Moreover, after accepting the principle of substitution this inheritance is confined to the children of the children and no sound reasoning can be presented in favour of this either.
2. As per the Qur'ān, only those who are alive have a share in the legacy of a person at the time of his death. Contrary to this, this view also grants a share to people who have died in the lifetime of that person.
3. The Qur'ān has explicitly allocated the shares of some relatives and no addition or reduction can be made to them. However, if this view is adopted, then an addition is made in some shares fixed by the Qur'ān and a reduction is made in some others.
The answer to the first question is that the grandson is not being given a share as a substitute for his father in the capacity of an heir; it is being given to him because after the death of his father he has become aqrab to his grandfather the way his father was. Thus he is a substitute for his father in this regard. When his father was alive, his father was aqrab of his own father with regard to being his offspring. After his death, his son has become aqrab to his father and on this basis has become entitled to inheritance. During the lifetime of the father, a person is like a son to his grandfather and after his father's death also he is like a son to his grandfather. The only difference which death has caused is that in becoming the aqrab of his grandfather he has become a substitute for his father. This substitution does not refer to the one understood by Sayyid Mawdūdī; it is a substitution in being aqrab to the deceased which according to his own opinion is the basis of the Islamic law of inheritance. If a deceased does not have children all the way down, then it is in this very capacity that brothers and sisters become substitutes of children, and as per the Qur'ān in the same manner receive their share in exactly the same proportion as prescribed for the children. For this substitution, the last verse of Sūrah Nisā' is an explicit source. The reason to deny it to the children of children is that after the death of the wife or the husband no heir can become a wife or husband to any extent so that he or she be regarded as the substitute of the deceased with regard to being their aqrab.
The answer to the second objection is that the share being given to the grandson is not the share of the father given to the son as his heir; the share is being given to him because it is, in fact, his own share because after the death of the father he is his substitute to his grandfather and an aqrab to the grandfather in the same capacity. This does not at all in any way affect the Qur'ānic principle that inheritance only belongs to the heirs who are alive at the time of the death of the person whose inheritance is to be distributed. The suggestion of giving a share to an orphaned grandchild is to make someone an heir who is alive at the time of death of the person whose inheritance is to be distributed.
The third objection has arisen because of the misunderstanding that this methodology of distribution of inheritance among the grandsons shall also be employed when no one from the children is present. The Mawlānā has explained this objection with an example. He writes:
… Suppose that a person had only two sons and both died during his lifetime; one of them had four sons and the other only one. As per the Qur'ān, all these grandchildren are equal with regard to being sons to their grandfather and hence each of them should receive an equal share from the inheritance of their grandfather. However, on the basis of this principle of substitution half of his inheritance will be received by one grandson and the remaining half shall be divided equally between the other four grandsons.
The answer to this objection is that this may not be the case. In this scenario, the same method of distribution can be adopted: each grandson be given equal share. The Qur'ān itself guides us to this. It has adopted one method in distributing the share to an heir in the presence of other heirs and another in their absence. Thus in the presence of children, the parents shall receive one sixth each; if the deceased does not have children but has brothers and sisters, then the shares of the brothers and sisters shall remain the same; however, if the parents are the only heirs of the deceased, then the mother's share shall be one-third and the father's share shall be two-thirds. Same is the case with kalālah relatives. If someone among them is made an heir and he or she has one brother or one sister, then they shall be given a sixth of his or her share; however, if he or she has more than one brother or sister, then they shall be given a third of his or her share. Thus it is not necessary that in case of grandsons, one of the two options be insisted upon. This is purely an issue in which ijtihād can be exercised. In this regard, whatever the method adopted, it should be in accordance with the principles prescribed by the Qur'ān, and in all cases be based on justice.
(Translated by Dr Shehzad Saleem)