Quote:
Originally Posted by Ammyabbas
Can you please explain, what is obligatory bequest?
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Islamic inheritance law excludes orphaned grandchildren from inheriting a share of their grandparent's estate in the event of surviving uncles and aunts under the rule that the nearer in degree excludes the more remote. For centuries, this prohibition has prevented orphaned grandchildren from inheriting a share of their grandparent's estate. Mediaeval Islamic juridical treatises claimed that inheritance law's provisions are the final dictate of God and their authority cannot be questioned. States have tried to resolve the conflict between the provisions of Islamic law and social needs by adopting various devices of reform such as ijtihad, taqlid, takhayyur, and talfiq.
In 1946, Egypt through the device of takhayyur established the principle of obligatory bequest [wasiyyah wagiba] in the Bequest Law, which enabled orphaned grandchildren the right to receive up to one-third of their grandparent's estate. This invited considerable attention of other Islamic states. In spite of some differences in detail, various Islamic countries agreed, in principle, with the position of Egypt. Syria in 1953, Tunisia in 1956, and Iraq in 1959 issued inheritance laws allotting a share of the grandparent's estate to orphaned grandchildren.
In 1961, Pakistan took a proactive stance by stipulating a provision in
Section 4 of Muslim Family Laws Ordinance, 1961. The text of this provision is as under
Succession
In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.
This provision is distinct from Muslim majority states by adopting the device of Ijtihad to establish the principle of full-representation for orphaned grandchildren.
(Note: This provision was challenged as against Islamic Law and still considered invalid by many Muslim scholars because Islamic inheritance law excludes orphaned grandchildren from inheriting a share of their grandparent's estate in the event of surviving uncles and aunts under the rule that the nearer in degree excludes the more remote)
For more detail read the commentary of Section 4 of Muslim Family Laws Ordinance, 1961.