Q. Both my father and grandfather died on the same day, with my father being the first to die. I was only three at the time with an elder brother and sister. The law in my country gives grandchildren in such a case a share of the inheritance from the grandfather, but my uncles denied us our share, claiming that it was against God’s law. Nor did they support us despite the fact that we were very poor. We could not enforce the law in our favor due to our poverty and young age. Now we are in a position to claim our rights, but my uncle who teaches Islam says that to give us anything from our grandfather’s inheritance is against Islam, according to the Hanafi school of Fiqh. Please advise.
M. Alam
A. What your uncle says about the Hanafi school is correct. Not only so, but other schools agree with this view. But this does not mean that this is the correct ruling or that any deviation from it is against God’s law. Besides, your uncle should know that there is a basic rule in God’s law which states: “Gain is commensurate with liability.” The gain in this case is the inheritance from your grandfather, and the liability is looking after your father’s young children. If you and your brother and sister were poor after your father’s death, then your grandfather takes over the responsibility for you and must look after you. When he died, your uncles were responsible for your living and your education until you were of an age to earn your own living. Why do people always remember their rights but are quick to forget their responsibilities? Besides, your uncle also knows the great virtue of looking after orphans. Even if you were unrelated to him, he would have done much better to look after you, or to give you a share of your grandfather’s estate. So, you certainly have a claim to press even at this late hour. With inheritance, which is a gain, certain responsibilities are tied. For example, if a man dies leaving no money, but having debts outstanding, his heirs are liable to repay his debts. The Prophet (peace be upon him) was asked by one of his companions if she should do the pilgrimage on behalf of her deceased father. He asked her: ‘Had your father left a debt outstanding, would you have settled it?’ She answered in the affirmative, and the Prophet said: “A debt owing to God has a greater claim to be settled.”
Having explained this, I need to explain that the law in your country, and indeed in other Muslim countries, giving grandchildren a share of their grandfather’s inheritance in the case of their father having died earlier, is in no way against God’s law. Indeed, it is in line with it, while leaving young orphans in misery is against God’s law. This situation is subject to a principle called ‘the compulsory will’. This was formulated as an Islamic principle by Imam Ali ibn Hazm who lived around one thousand years ago. It gives the grandchildren a share of inheritance equal to their deceased father’s share or one-third of the grandfather’s estate, whichever is the lesser amount. The evidence supporting this principle is taken from the Qur’anic verse which says: “It is prescribed for you, when death approaches any of you and he is leaving behind some property, to make bequests in favor of his parents and other near of kin in fairness. This is a duty incumbent on the God-fearing.” (2: 180) Note how the Qur’anic verse stresses the fairness aspect and makes ensuring it a duty incumbent on anyone who is God-fearing. How can a God-fearing person deprive such near of kin as young, orphan grandchildren, claiming that leaving them in poverty is what God’s law requires, I simply cannot understand.
Now, if you present this to your uncle, he is likely to argue that he is following the Hanafi school, or that this verse is abrogated, or make some other argument. He may make an argument that the court accepts, and he may be able to get away with whatever he has taken. All this is possible, but then what will he really gain? If he makes such arguments, then you should remind him of the Hadith which says: “I am only a human being and you put to me your disputes. One of you may be able to present a better argument than his brother, and I may rule in his favor. Let him know that if I give him something that belongs to his brother, then I am only giving him a brand of fire. He may take it or leave it.”
