Islamic Studies (Islamabad) 3:3 (1964)

THE PROBLEM OF REPRESENTATION IN THE

MUSLIM LAW OF INHERITANCE*
A. B. M. SULTANUL ALAM CHOWDHURY

The Muslim Law of Inheritance consists mainly of the rules

relating thereto as laid down in the Qur'zn or prescribed by the
Prophet in his teachings, and the pre-Islamic customs and usages
prevailing among the Arab tribes near Mecca and Medina at the
time of the Prophet, in so far as they have not been altered or
abrogated by the said rules and teachings.' It is well known that
the usages and customs not discountenanced by the Prophet have
the force of Sunnah (Sunnat a2-Taqrir) just as the Sunnat al-Fi'l
(traditions about the doings of the Prophet) and the Sunnat al-Qawl
(traditions about whathe enjoined by words). As the task of inves-
tigating th,e pre-Islamic sources of the ideas and notions imbedded
in the law of inheritance is not easy and as the information given in
the lexicographical and belletristic sources is scanty and uncertain
a t best, it is safer to say that the Qur'iin and the Sunnah of the
Prophet constitute the bases of the entire Muslim Law of
Inheritance.
This law has, for the last fourteen centuries, decided and
settled all questions regarding succzssion and inheritance of Muslim
intestates, and has been regarded by the Muslim jurists as immut-
able and final. I t has always been admired for its completeness
and comprehensiveness as well as the success with which it has
achieved the ambitious aim of providing not merely for the selection
of a sigle individual or a homogeneous group, on whom the estate
of the deceased should devolve by universal succession, but for
adjusting the competitive claims of all the nearest relations.2
Sir William Jones. a Judge of the Supreme Court of Judicature at
Calcutta from 1783 to 1794 and the founder of the (Royal) Asiatic
Society of Bengal, was the first European to translate into English
the most authentic work on Muslim Law of Inheritance, al-Siriijlyyah
by Sirzj al-Din Muhammad b. 'Abd al-Rabid al-Sajzwandi and its
*This paper attempts t o distinguish between the ~rinciple of represen-
tation and the classical Muslim principle of inheritance, viz. "The nearer in
kinship excludes the remoter."

© Dr Muhammad Hamidullah Library, IIU, Islamabad. http://iri.iiu.edu.pk/

376 REPRESENTATION I N MUSLIM L A W OF INHERITANCE

commentary al-Sharifiyyah by Saysid S a r i f b. 'Ali b. Muhammad

al-Jurjzini, published together in 1799 and 1807. Sir *Williams
remarks in the Introduction : "I am strongly disposed to believe
that no possible question could occur on the Muhammadan Law of
Succession which might not be rapidly and correctly answered"? The
truth of the above remarks will be evident if the conception of the
ownership of property and the principle of its distribution, as laid
down in the Qur'an, are taken into consideration. The Qur'~nsays:
k 4 *Ir;U>I A l 1C J+g
"Unto men is allotted what they earn, and t o women what they
earn" (IV : 32).
The above verse clearly shows that men and women are the sole
owners of their properties, inherited o r self-acquired, during their
lifetime. That is why, every man or woman while alive has the
unchallengeable and'unfettered right t o transfer or dispose of his or
her property by sale, mortgage, lease, trust. bequest or gift inter M'YOS.
In regard to bequest, of course, a restriction is imposed that it should
not exceed one-third of the property, lest it may prejudice the
interests of the legal heir. It is also notable, in this context, that
the right of the propositus in his property is not a t once extinguished
after his death. His sickness and funeral expensea, the satisfaction
of the debts incurred by him and the execution of his bequests are
the charges on his property before its distribution among the legal
heirs could take place. So, the question of succession t o the
property of any person can never arise in his lifetime.
Again the Qur'an says :

"Unto the men belongeth a share of that which parents and

near kindred leave, and unto the women a share of that which
parents and near kindred leave, whether it be little or much--a
legal share" (IV : 7).
The Qur'iin again says :
- &>Yl J bldlJl k Jly lA+ JQ
"And unto each W e have appointed heir of that which parents
and near kindred leave" (IV :33).
The word " AJ " in the above verse is the pivot around which
the entire question of succession and inheritance hinges. Al-Tabari
 A. B. M. SULTANUL ALAM CHOWDHURY 377

had interpreted it as + jl; L, i.e. what he left behind.'

'Ala' al-Din al-Baghdadi has interpreted it as 4 1 9 &I JuI~&,
i.e. from the property left behind by the d e ~ e a s e d . ~According
to Tabs-taba'i pd 3 * (
A 4 4 1 JL 3 j. L ddJ1"the ,
meaning of 'tarkah' is, what remains of the property of the
deceased after him, as he indeed leaves it behind and departs". So,
it is abundantly clear that the question of succession t o the property
of the deceased arises only after his death and not before.
The aformentioned verses of the Qur'an place the law of
succession and inheritance t o the property of an intestate Muslim
on two solid principles :
(1)The propositus is the sole owner of his property, inherited
or self-acquired, during his lifetime.
(2) The question of succession t o the property of the propositus
arises after his death and not before.
It is evident from the above discussion that Islam does not
recognise the principle of coparcenary or the accrual of the right of
inheritance of a child with his birth as is recognised by the 'Mitak-
Sara' school of Hindu Law. "The question of the devolution of
inheritance rests entirely upon the exact point of time when the
person through whom the heir claims, died-the order of deaths
being the sole guide in such cases".' This may be illustrated by
the following example :
24 A (Propositus)
i
I I I I
B (w-living) C (diving) D (s-predeceased) E (d-living)
3 14 (excluded) 7
In the above case A (propositus) died leaving the wife B, the
son C and the daughter E living a t the time of his death. The son
D predeceased him. Here the wife B. the son C and the daughter E
will get their due shares t o the exclusion of D. the predeceased son
as he was not present or living a t the time of the propositus' death.
In the light of the above findings let us examine the idea of
LI
representation" as envisaged in Section 4 of the Pakistan "Muslim
Family Laws Ordinance (OrdinanceVIII of 1%1)" and see how far
it is tenable under the Islamic Law. Section 4 of the Ordinance
reads: "In the event of the death of any son or daughter of the
propositus before the opening of succession, the children of such
son or daughter. if any, living a t the time the succession opens,
shall per stirpes receive a share, equivalent t o the share which such
378 REPRESENTATION I N MUSLIM L A W O F INHERITANCE

son o r daughter, as the case may be, would have received if alive".
Let us take an example in illustration of the above :
A (Propositus)
6 -- I
I I
I
B (S. L.) C (S. P. D.) D (D. L.) E
I
(d.
P. D.)
2
SS
\
I SD
/
1
DS
\
I
DD
/
\ / \ /
2\/ I\/
I n this case A, the propositus, died leaving a son 8,a daughter D.
a son's son SS, and a son's daughter S D by a predeceased son C.
and a daughter's son DS and daughter's daughter D D by a
predeceased daughter E. According t o the import of the Ordinance,
the son's son and son's daughter and the daughter's son and
daughter's daughter are t o take the shares of their father and
mother respectively per stirpes from t h e property left by the
propositus, though their father and mother predeceased him. This
method of succession is called "Succession by Representation".
T h e crux of the problem lies in the question as t o what
C (S. P. D.) and E (D. P. D.) inherited from t h e propositus whom
they predeceased. According t o the first principle of the Qur'sn
discussed above. they inherited nothing from the propositus in their
lifetime. as, then the propositus was t h e sole owner and proprietor
of his properties. And next, when the succession opened, they
were absent on account of death. They had left the world before
t h e propositus left behind the property. So, according t o both the
legal principles of the Qur'sn, they were excluded from inheritance
outright. Such being the case, it is inconceivable, how their sons
and daughters can inherit the quantum of their shares which they
themselves were legally barred t o inherit ! T h a t is why all the
four schools of Sunni Law do not recognise the so-called principle
of representation as qualifying the rule of exclusion.
Now let us attack the question from another direction.
According t o the Muslim Law of Inheritance, the son and the son's
son are residuaries ('A2abiit). They are entitled t o take the
bb
residue" aftzr the sharers (ashiib al-furiid) have taken a definite
share or fraction of the estate under the provisions contained in
the Qur'iin. T h e daughter is originally a sharer, but she also
becon~esa residuary, when she co-survives the propositus with the
son-the son taking twice as large a portion as that of the daughter.'
 A. B. M. SULTANUL ALAM C H O W D H U R Y 379

61
A l l ~ hchargeth you concerning (the inheritance of) your
children : t o the male the equivalent of the portion of two females"
(IV : 11).
By all schools of Muslim law the question as t o who shall be
the heirs, and who, as such, shall be entitled t o take the estate, is
tackled by determining who are the nearest, in accordance with the
rules of proximity, t o the deceased.' As regards residuaries by
themselves or the nearest male agnates it is said :
--+>dl v* 'j*> +Yb vJYl
"The nearest and then the next nearest are preferred on
account of the nearness of their status or relati~nship.~The
commentator of al-Sirtijiyyah says :
- j l d l vJl; 6 ,J bb -+JI up!+a~Jl vjl ~9 - 31
"Verily preference is given t o the nearest of all the residuaries
on account of the nearness of status, if such nearest is not present
then t o the nearest of the rest".1°
Hsfi? ibn Hajar, the celebrated commentator of al-Bu&ir5,
says :
v j Y G "9YI "-+
\I AiJl J+ y;-! ~ j J l'jl Jr lptl
- J -1L +? -lL
"It is the consensus of the people that whatever remains after
the satisfaction of the shares of the sharers, is for the agnates.
where the first nearest is preferred then the next nearest. And a
distant agnate does not inherit with a near agnate."ll Badr al-Din
'Ayni, another commentator of a l - B ~ ~ aand r i ~al-Nawawi,"
~ the
commentator of $a&h al-Muslim, also hold the same view.
I t is t o be borne in mind that the unanimous consensus of the
Companions of the Prophet, in regard to a case on the basis of the
nu: or the revealed text, has the binding force of a verse of the
Qur'2n.14 On this fundamental principle of Muslim law of succession
also the predeceased son's son or the predeceased son's daughter is
excluded from inheritance by a surviving son. The son's son or the
son's daughter is one degree remoter than the son, hence the
exclusion.
Opinions of the eminent jurists throw abundant light on this
subject.
980 REPRESENTATION I N MUSLIM L A W O F INHERITANCE

The author of Al-Bahr aL R Z i q says :

"The children of the son, whether male or female, are excluded

(from inheritance) in the presence of a son, because the son is
nearer.''
The author of Mukhtagar al-Muzanl says :

"If with the daughter or daughters, there occurs a son, then

there is no question of half or two-thirds, but the property is to be
distributed in such a manner that the male takes twice as large a
portion as that of the female and all the children of (the pre-
deceased son) are dropped."16
After examining the aforementioned opinions of the eminent
jurists of Islam, i t is now abundantly clear that the inheritance of
a Muslim is deeply connected and interwoven with the question of
proximity and remoteness in kinship.
It the so-called principle of representation is, by force, applied
in the case of the children of a predeceased son or a predeceased
daughter, as envisaged in Section 4 of the Ordinance, then there is
no reason why i t should not be applied in other cases also.
Supposing A has two wives. B and C, of whom C predeceased A. A,
a t the time of his death leaves, the wife B and one son D and one
daughter E by her, and one son F and one daughter G by the
predeceased wife C, then according t o the principle of the Qur'gn
the share of the predeceased wife is merged in the other shares, the
surviving heirs getting shares according t o the following table :
B (wife) 118, C (wifc-predeceased-excluded), D (son by the
wife B) 7/24, E (daughter by the wife B 7/48, F (son by
the predeceased wife C) 7/24 and G (daughter by the
predeceased wife C ) 7/48.
In this case, D and E have an additional chance of inheriting
the share of their mother in the long run. provided they survive
her. Time may come, and it is bound t o come, when somebody
may show sympathy for the children of the predeceased wife and
claim for them the share of their predeceased mother on the
principle of representation, in which case the position of the heirs
 A. B. M. SULTANUL ALAM CHOWDHURY 381

will stand like this : B (wife) 1/16,C (wife-predeceased-share

transferred to her son and daughter), D (son by the wife B) 7/24,
E (daughter by the wife B) 7/48, F (son by the predecea~edwife C )
113. and G (daughter by the predeceased wife C ) 116.
In this way by an emotional push the principle of representation
will be applied in all and sundry cases, causing final subversion of
the law of inheritance which has teen held unalterable and
sacrosanct by the Muslim jurists and divines.
An argument advanced by the exponent of the inheritance of
the predeceased son's son or predeceased son's daughter in the
presence of the surviving son or sons of the propositus is that if the
grandfather is entitled t o inherit the deceased grandson in the share
of his predeceased father, why should not the grandson also be
entitled t o inherit the deceased grandfather in the share of his
predeceased father on the same principles, even though other son
o r sons of the deceased grandfather may be living. The reason is
not far t o seek. The father's father inherits the deceased grandson
whose father is dead. He does not inherit in the presence of the
father. A man has only one father, but he mag have more than
cne son. So, when a son predeceases the propositus, his share
which he would get, if alive, goes t o the surviving sons of the
propositus, instead of going t o his own sons or daughters who are
one degree remoter t o the propositus. If there were no son or
sons of the propositus living, then the inheritance would devolve
on the son's son as a residuary. Similarly, if due t o some super-
natural reason, a man had more than one father, then the share of
his predeceased father, instead of going t o the grandfather direct
would have been distributed among the other surviving fathers !
W e have already discussed in detail the case of the children
of the predeceased son. Now it seems necessary t o throw some
Iight on the case of the children of the predeceased daughter also.
Daughter is a female agnatic dascendant and a Qur'snicsharer.
She takes half of the estate of the deceased if one. two-thirds if
two or more and a residuary while occurs with son(?), the son
taking twice as much share as that of the daughter. The children
of the daughter are classified as dhawi'l arbiim or distant kindred.
There is a sharp difference of opinion among the early jurists
regarding the eligibility of the distant kindreds for inheritance.
Zayd b. =%bit and Ibn 'Abbgs, according to a weak tradition. hold
that there was no inheritance for the distant kindreds ; it should
382 REPRESENTATION I N MUSLIM LAW OF INHERITANCE

escheat t o the Bayt aLMiil. Sa'id b. al-Musaypib and Sa'd b. Zubapr

followed them. Malik and Sha6'i also hold the same view.17
These negationists contend that Allah has mentioned in the verses
relating t o inheritance about the share of the sharers and residuaries
but nothing about the distant kindreds. Had they any right
Allah would have certainly mentioned that.'* But the majority of
the Companions including 'Umar, 'Ali. Ibn Mas'iid, Abil 'Ubapdah,
Mu'z& b. Jabal, Abu Darda'. and Ibn ' A b b ~ saccording t o an
authentic report. opined in favour of inheritance of the distant
kindreds. Their opinion was supported by the Tabi'an like
'Alqamah. Shurayb. [brahim. Hasan. Ibn Sirin. 'At%' and Mujahid.
Aba Hanifah. Aba Yiisuf, Muhammad. Zufar and their followers
endorsed the same view.19 I n a later age when the organisation
and management of Bayt abMnI suffered a severe setback due t o
political turmoils and decadence all around, the supporters of Shiifi'i
also favoured the inheritance of the distant kindreds.8' The stand
of the assenting group of jurists is based on the verse of the Qur'en :
- GI +C &I ++ f L j Y l lJ31
a1
And those who akin are nearer one to another in the ordi-
nance of All&" (VIII :75).
It means "some of them are nearer t o one another" in respect
of i n h e r i t a n ~ e . ~I~t is narrated that al-Mu'tadid asked Qadi
Aba Hazim about this question. H e answered that all the
Companions of the Prophet except Zayd b. n ~ b i t ,were unani-
mous in favour of the inheritance of the distant kindreds. His
opinion does not count pis-ii-yis their unanimous views. Then
Mu'tadid asked if he did not report it from Aba Bakr, 'Umar and
'Ubrniin. H e answered : "Never. and he is a liar who claim t o
narrate i t from them." Then Mu'tadid ordered the returning of
the confiscated inheritance deposited in the Buyt al-Ma2 belonging
t o persons having distant kindreds."
It is now apparent that the distant kindreds have a very feeble
right in the properties of the deceased. The general rule is that if
there were no sharers or residuaries. the inheritance is divided
amongst distant kindreds. But if the only sharer were a husband
o r a wife, and there be no relation belonging t o the residuaries, the
husband or wife will take his or her full share, and the remainder
of the estate will be divided among distant kindred, because
neither the husband nor the wife is entitled t o the 'return' (radd),"
 A. B. M. S U L T A N U L A L A M CHOWDHURY 383
so long as there remains an heir, whether he is a sharer, a residuary
or a distant kinsman.
The chi:dren of daughters are all distant kindreds. The
Ordinance of 1961, by invoking the principle of representation in
the case of the daughter's children. aims a t converting the distant
kindreds into sharers in contravention of the sacred law, causing
innumerable anomalies by way of excluding many rightful claimants
and including outsiders. If the predeceased daughter is presumed
t o be alive a t the death of the propositus for legalising the inherit-
ance of the children of the daughter then the lapsed right of other
excluded heirs will automatically and simultaneously revive on the
principle of representation. And this principle can be carried on
t o any length without any hindrance. The anomalies may be
illustrated by the following example :
The propositus A died leaving a wife B, a daughter C, a
predeceased daughter D (excluded from inheritance but
presumed t o be alive for legalising the inheritance of her
children) and a son E. In the normal course, the estate of the
deceased propositus would be distributed among the wife B.
daughter C and the son E t o the exclusion of the predeceased
daughter D. Now supposing the predeceased daughter D, a t
the time of her death left behind the husband H, mother B,
the father (the propositus A), a daughter N, a full brother E
and a full sister C. If the predeceased daughter is brought to
life by fiction t o give her share per stirpes t o her daughter,
then the rights of other legal heirs such as husband, mother,
brother and sister which, due t o her dying before the propositus,
merged in the general pool will automatically be revived.
And it will. indeed. be illegal, inequitable and ucfair t o exclude
all other legal heirs in order t o satisfy only a particular set.
In this way one illegality gives rise t o numerous illegalities,
each again giving rise to similar illegalities in a never ending process.
There is another aspect of the problem. The children of the
daughter are not regarded as belonging t o the stock of their
maternal grandfather ; their lineage is traced from their peternal
grandfather alone. There is a well known Arabic saying t o this
effect :
- JipJI UL22
6\21 ,j~& Gh1 Ls?
I&
Our children are the sons of our sons and our daughters
Cwhereas) their (our daughters' children) are the children
384 REPRESENTATION I N MUSLIM L A W O F INHERITANCE

"Verily, the children of daughters are from the stock of their

fathers ; not from the stock of their mothers. Don't you see that
the children of the caliphs by the maid-servants were regarded as
belonging to the stock of their fathers. Al-Mg'miin also said on
this point : 'There is no disqualification in one's mother being
from Byzantiurn or being a black non-Arab. Because surely the
mothers of men are vessels and depositaries, and for lineage are
the father^'."'^
Sentiments such as sympathy towards orphans in their help-
lessness may enter into the case of the children of the predeceased
son. Moreover, their case is also legally stronger as they are the
agnates of the deceased, but the children of the predeceased
daughter are neither legally on the same footing as the children
of the son nor on any sentimental grounds. The predeceased
daughter's children are not absolutely helpless as they have the
fullest right t o inherit from their father's side.
So, when a predeceased son's son, who is a near agnate, is
legally incompetent t o inherit his paternal grandfather on the
principle of representation, it is unimaginable, how the predeceased
daughter's children being cognates and distant kindreds, out and
out, can have a claim t o the properties of their maternal grand-
father on the same untenable principles ?
The Ordinance under discussion. it seems, was promulgated
with a view t o making room for the helpless orphan children of the
predeceased sons or daughters who under the sacred law are
excluded from inheritance. This aspect, no doubt, presents a
gloomy picture and deserves the serious consideration of the jurists.
The question that should particu!arly engage their attention is
how t o solve the problem without shattering the immutable law of
Allsh. If for the sake of finding a short-cut t o these problems, we
amend and abrogate the divine law for our convenience, then the
sacrosanctity of and reverence for divine law will be gone for ever.
 A. B. M. SULTANUL ALAM CHOWDHURY 385

I have already discussed that a Muslim is the sole properietor

of his properties inherited or self-acquired, during his life-time.
H e has the absolute right t o transfer or alienate his properties by
sale, gift, bequest o r in any other manner he likes. So, I think if
recourse is taken t o some other method t o dove the problem of the
inheritance of the orphaned children of the predeceased son or
daughter instead of invading the fundamental principles of the re-
vealed law, it will be safer for all concerned. According t o the
sacred law every Muslim, of sound mind and being not a minor;
may dispose of his property by will or wagiyyah, which may be
made either verbally or in writing. A bequest t o an heir is not
valid unless the other heirs consent t o it after the death of the
testator. A Muslim cannot by will dispose of more than one-third
of the surplus of his estate, after payment of funeral expenses and
debts. and such a will cannot take effect unless the heirs consent
thereto after the death of the testator,
Wcqiyyah o r bequest is a religious institution in Islam, as the
Qur'an says" :
'34.u --y'jt - ;4 'jl c+lI + L I - I 3 &LC 6
- &I & b* - 4ph oy) Y b
"It is prescribed for you when one of you approacheth death.
if he leaveth wealth, that he bequeatheth unto parents and near
relatives with justice. (This is) a duty for all those who ward off
(evil)" (I1 :180).
There is difference of opinion among the theologians and
jurists in regard t o the legal force of the above verse. Al-Tabari
says : "Everybody whose death is near and has wealth, small or
large, then it is incumbent upon him t o make bequest in kindness
of a portion thereof for his parents who do not inherit him and for
near relations who d o not inherit him."27 I t is narrated by Waki',
b. Abi s a y b a h , 'Abd b. Hamid, Ibn Jarir, Ibn a l - M u n h i r
and Bayhaqi on the authority of Ibn 'Umar that he, being asked
about the verse of bequest, said that it was abrogated by the verse
of i n h e r i t a n ~ e . ~It~ is narrated by Ahmad, 'Abd b. warnid,
Tirmidhi, NasH'i and Ibn Miijah on the authority of 'Amr b.
Kh~rijahthat the Prophet addressed them sitting on his camel's
back: "Verily A l l ~ hhas apportioned for every man his share of
inheritance so bequest in favour of an heir is not permissible"."
Ahmad, 'Abd b. Hamid and Bayhaqi have narrated on the
386 REPRESENTATION IN MUSLIM L A W O F INHERITANCE

authority of AbU Im~mahal-Bghiliwho said: "I heard the Messenger

of Allah (peace be upon him) saying in his sermon on the day of
the Farewell Pilgrimage that Allah has given every heir his right
so no bequest in favour of an heir was permi~sible."~~ Ibn 'Abbss
is of the opinion that the mandatory of the verse became abrogated
in the case of those who inherit, but remained in force in the case
of parents and distant relations who do not inherit. This is the
opinion of Hasan, Masraq. Tawus. Du@k and Muslim b. Yasar.
Their argument is based on the ground that the verse is indicative
of the mandatoriness of bequest for parents and near relations,
then of the abrogation of that mandatoriness by the verse of
inheritance and by tradition, in case of those who are entitled to
inherit.'O The majority of the commentators of the Qur'Ln. the
jurists of Hijaz and 'Irlq are of the opinion that its mandatoriness
is abrogated in all cases. Now, it is but recommendatory in case
of those who are excluded from inheritance." Ibn 'Umar, Ibn
' A b b ~ sand Ibn Zayd also said that the verse stood ahrogated as a
whole and the bequest became recommendatory. Similar is the
opinion of al-Sa'bi, al-Nakha'i and Malik.3a Bequest was
mandatory even in case of an heir during the early period of Islam,
then it was superseded by the verse relating to inheritance and the
saying of the Prophet : "Verily Allah gave t o the heirs their due
rights. Now, lo ! there is no bequest for an heir".33 The people
accorded it wide acceptance (by practice), so much so that it has
acquired the force of Ha&& Mutawatir. Had it been Abad.
they would not have accepted it (by practice), besides affirming
the correctness of its n a r r a t i ~ n . ~ '
In the above verse the word 'd3p!h9has been interpreted as :

i.e. with justice, which means that there should not be any bequest
in favour of the rich leaving aside the poor, and it should not
exceed one-third of the p r ~ p e r t y . ' ~ Difference of opinion also
exists among the jurists and divines as t o the quantum of wealth
or property out of which a legacy can be bequeathed with equity.
The word 'fi' in the above verse has been defined as "abundant
wealth". It is narrated from 'Ki&ah that a man desired t o leave
a bequest while he had dependants and four hundred dinsrs. She
told him : "I do not see any merit in it". Another man also wanted
t o bequeath some wealth. She asked him : "How much wealth do
 A. B. M. SULTANUL ALAM CHOWDHURY 387

you have?" H e replied : "Three thousand." "How many depen-

dants ?" The answer was "four". Then she said : " A l l ~ hsays, 'if
he leaves abundant wealth' and verily this wealth is scanty, and
verily this wealth is scanty. so leave it for your dependant^."^^ It
is reported by 'Abd al-Razz~q,Ibn Abi Shaybah, 'Abd b. Hamid
Ibn Jarir, Ibn al-Mundhir, Hgkim and Bayhaqi from 'Urwah that
'Ali b. Abi Talib entered upon a client in death-bed, who had
seven hundred or six hundred dirhams. H e asked. "Should I not
bequeath something ?" 'A!i replied : "The saying of Allah is 'if he
leaves abundant wealth' but you have not much wealth, so leave
it for your heirs."37
So, if we analyse the rule embodied in the above verse in the
light of the discussions of eminent jurists as set forth, we find.
therein, the following ingredients :
( 1 ) W a s i y y a h or bequest was mandatory before the revelation
of the verse of inheritance.
(2) According to some jurists and divines, it is abrogated by
the verse of inheritance in the case of those who inherit, but is
mandatory in regard to those who do not inherit.
(3) According to some jurists the mandatoriness of the verse
W a s i y y a h is abrogated in the case of all. It is but recommenda-
tory now.
(4) There is no merit in bequeathing a legacy where the assets
of the testator are scanty.
( 5 ) It should be with justice, i.e. due consideration should be
had for the poverty and deservedness of the legatee. It should
not exceed one-third of the assets of the testator.
Apart from the wasiyyah there is another charitable institution
known as hibah or gift. Hibah in its literal sense means doning a
thing from which the donee may derive a benefit. Legally it means
a transfer of property. made immediately, and without any
exchange. Gifts are rendered valid by offer, acceptance and seizin.
The gift t o an orphan is rendered valid by the seizin of his
guardian, t o a fatherless child by the seizin of his mother and to a
rational infant by the seizin of the infant himself.38 The donor can
make a gift of his entire property, if he so desires. But the Prophet
has emphasized the need of maintaining justice and equity in case
of a gift to children, lest that may disturb the peace and calm of the
family by engendering mutual hatred and animosity.
Those who are vehemently in favour of giving inheritance to the
388 REPRESENTATION I N MUSLIM L A W O F INHERITANCE

children of a predeceased son or daughter bank upon the fact that

the Prophet was an orphan himself and exhorted the Muslims t o
take all possible care of helpless orphans and to refrain from
harassing them in any way. So some legal provision must be made
for the support of the helpless orphans. There cannot be two
opinions regarding the cogency and force of this argument. The
crux of the question is, how t o solve the problem without invading
the immutable basic principle of the devolution of inheritance
laid down in the Qur'gn.
Hibah is an entirely discretionary matter. the father's father or
mother's father is at liberty t o gift out something in kindness for
his predeceased son's or re deceased daughter's children. But since
the matter is discretionary, the intervention of law cannot be
invoked to compel a recalcitrant propositus. whose son or daughter
predeceased him, t o leave something for the orphan grandson or
grand-daughter by way of gift. But the institution of wagiyyah is
placed by the s a t i ' a h on a different footing. As difference of
opinion exists among the jurists and divines as to the legal force of
wasiyyah. I think, the courts of justice in the country taking resort
t o equitable principles such as I ~ t i h s i i nor
~ ~ I ~ t t & i B , and
~ ~ in
exercise of their inherent power can assign mandatory character to
i t in extreme and deserving cases in accordance with the principles
discussed before, if the propositus does not voluntarily leave any
bequest in favour of the predeceased son's children or predeceased
daughter's children. The case of the predeceased daughter's
children has t o be examined very carefully. If they have the
chance of getting inheritance from the father's side or any bequest
or gift from the paternal grandfather. in case the father predeceas-
ed them. the court should not come t o their succour, as their claim
IS legally much remoter than that of the son's son or daughter.-
the former being "distant kindreds" and the latter "residuaries".
In such cases. the Government of Pakistan may. by a separate
Act or by amending the Civil Procedure Code. allow the helpless
orphans t o file suits in forma pauperis in a court exercising
competent jurisdiction or in a special court set up for the purpose.
Such cases are t o be tried and disposed of summarily. The decree
of the court should be treated as the Wasiyyat Namah, or Deed
of Bequest. and should be executed by the court without delay.
But if instead of taking recourse to such methods, the clear
principles of the Qur'iin are tampered with a t will, insuperable
 A. B. M. S U L T A N U L A L A M C H O W D H U R Y 389

anomalies will crop up in the law of inheritance necessistating the

total recast and amendment of the inviolable Qur'anic Laws.

NOTES
1. F.B.Tyabjt. Muhainmadan Law;. Bombay 1946, p. 820.
2. Ibid.
3. Sir William Jones. The Works of Sir William Jones, London 1807. viii :201.
214. 218 ; Calcutta 1799.iii : 519.
4. Al-Tabari. Tafsir. Cairo 1374 A.H., Siirah al-NisZ', v. 7 (relevant portion).
5. 'Ah' al-Din al-Bghdadi. Tafsfr al-(hiizin. Cairo 1317 A.H.. vol. I, Sarah
Nisii'. v. 7.
6. (1885) 7 All. 822. 834 : (1903)32 I.A.. 177.179 (Par. 2) (Burm.).
7. Condensed from al-Sirbjiyyah by Sirzj al-Din al-Sajawandi, Karachi 1378 A.H.
8. Tyabji. op. cit.. sec. 604B.p. 832.
9. AI-Siriijiyyah (Bab al-'Asabet).
10. a a r i f al-Jurjani, al-aarifiyyah, Cairo. n.d., p. 184 f. n.
11. Ibn Hajaral-'Asqalani. Fat4 al-Bdri. Cairo 1308 A H..xxii :11.
12. Al-'Ayni. B a r b al-Btc&Zri. Istanbul 1308 A.H..xi : 97.
13. Muhyi al-Din Abii Zakariya YahyP b. a a r a f al-Nawawi. Sahi!a al-Muslim
ma 'Bm-h. Cairo 1349 A. H.,x i ; 53.
14. N i ~ a r nal-Din a l - a s s h i , Usiil al-SJii&i, Deoband, n.d., see the chapter on
IjinE'.
15. Ibn Nujaym, al-Bahr al-Ra'iq, n.p.. n.d.. viii :563.
16. 'Abd al-Rahmln al-MuzanT. M u a t q a r al-Muzani, on the margin of Kitab
d-fhm. Biilaq 1321 A.H.. iii : 141.
17. A!-Barifiyyah, op. cit.. chapter on B a w i 'I-Ar&m.
18. Ibid.
19. Ibid.
20. Al-JurjBnT. op. cit.. f.n.. p. 267.
21. Ibid.. p. 269.
22. Ibid.
23. If there is a residue left after satisfying the claims of sharers, but there is
no residuary. the residue reverts t o the sharers in proportion t o their shares.
This right of reverter is technically called "Return" or "Radd": D. F. Mulla,
Principles of Mahomedan Lawl4. Calcutta 1955. p. 52.
24. Muhammad Husayn Taba'taba'i. Tafsir al-Mijiin. Tehran. n. d.. vol. 4. Siirah
Nisii'. vv. 23-28.
24. Al-Sarakhsi, a l - & z r h al-Siyar al-Kabir. Hyderabad 1335 A.H.. i ; 221.
25. Al-Tabarf. Tafsir, Cairo, 1374 A.H. vol. 3. S ~ r a hal-Baqarah, v. 180.
N.B.-After the revelation of the verse of inheritance, the father and mother
were given definite shares of inheritance. The father takes one-sixth when
there are two or more brothers o r sisters. W h e n there are no male agnatic
descendants. the father is a residuary, and his rights as a sharer are merged
in his rights t o take residua. which is never less than one-sixth--except
whzre thzre are any daughters or female agnatic descendants i n which case
 REPRESENTATION I N MUSLIM L A W O F INHERITANCE

his right as a sharer gives him claim t o rank with the other sharers. The
mother shares i n every case. W h e n there are agnatic descendants or when
there are no agnatic descendants, b u t father co-existing with two or more
brothers or sisters. she takes one-sixth. If she co-exists with father, but
neither with agnatic descendants nor with two or more brothers or sisters,
she takes one-third of the residue after husband or wife (if any) has taken
his or her share. B u t when there is neither father nor agnatic descendants
nor two or more sisters o r brothers. she takes a half of t h e whole estate.
Such being the case there cannot be parents who d o n o t inherit. (Accordirlg
t o a a w k a n i , parents who d o not inherit means 'Parents who are unbelievers
or who are in slavery'. Fath al-Qadir, Cairo. n. d.. i : 155.)
Al-SuyO!i, al-Durr a2-Mant&ir, Tehran 1377 A.H.. i ; 175 (Siirah a2-Baqarah.
v. 180).
Ibid.
Ibid.
Al-Bag>d~Ji. T a f s i r a l - h i i z i n . Cairo. 1317 A.H.. i : 113 (Siirah a2-Baqarah.
v. 180).
Ibid.
Ibn Hayyzn, al-Bahr al-Muhft, Cairo 1328 A.H.. i i : 18.
Al-Zama&&ari, Ka&&iif. Cairo 1354 A.H., i : 112.
Ibid. N.B.-Mutawiitir is a Haditlr when i t is reported by such a large
number of persons t h a t it becomes impossible t h a t they should have agreed
upon falsehood, so t h a t t h e very fact t h a t it is commonly accepted makes
its authenticity unquestionable. A @ d : The A h ~ d(isolated) H a d i h are
divided into three classes, viz. M a d h i i r (well-known), technically Had$&
which are reported through more than two channels a t every stage ; ' A z f z
(strong), i.e. H a d & t h a t are n o t reported through less than two channels :
and Gharib (strange), namely Had@ in whose link of narrators there is only
a single person a t any stage. It is further subdivided into various other
classes.
~ 2 - ~ a s h & i Cairo
f. 1354 A.H.. i ; 112.
Ibid.
A l - S a w k ~ n i ,Fath a2-Qadir, Cairo 1349 A.H., i : 156.
Charles Hamilton. Hedaya' (English tr.). Lahore 1957, pp. 482-4.
Istihiin has been translated as "juristic preference". This term was used
by Abii Hanifah t o express the liberty t h a t he assumed for laying down such
a rule of law as the special circumstances demanded rather than the rule
t h a t analogy indicated.
Istijliih literally means "seeking peace '. Malik laid down t h a t ordinarily
analogy was t o be the means by which the law should be made t o expand.
b u t if it appears t h a t a rule indicated by analogy i s opposed t o commonweal,
then Istislah
. . should be resorted to. According t o this rule analogy could be
disregarded only if i t would be harmful t o public interest.
 A. B. M. SULTANUL ALAM CHOWDHURY 391

Obituar v
We regret to announce the death of the author, Mr. A. B. M.
Sultanul Alam Chowdhury, Professor of Law in this Institute. on
August 1, 1964. He was 47 at the time of his death. In the
Institute he was engaged in the work of bringing the Pakistan Penal
Code in line with the injunctions of the Qur'gn and the Sunnah.
May his soul rest in peace !-(Ed.)