SECTION 4 OF THE MUSLIM FAMILY LAWS ORDINANCE: THREE ALTERNATIVE INTERPRETATIONS

 

Section 4 of the Muslim Family Laws Ordinance, 1961, dramatically altered the traditional succession law of both the Sunni and Shia Branches of Islamic jurisprudence in circumstances where the propositus leaves among his surviving relatives an 'orphaned grandchild', i.e. a grandchild whose parental link with the propositus predeceased the propositus. This section reads: -‑

* Center for Asian Studies, University of Texas, Austin, Texas, U.S.A.

            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 at the             time     the succession opens, shall per stirpes receive a share equivalent to the      share which such son or daughter, a, the case may be, would have received if       alive.

Although the wording of section 4 would appear to be clear and unambiguous three High Courts have interpreted this section in three different ways:

(1) Peshawar: Mst. Zarina Jan v. Mst. Akbar Jan [1]

Shah Zaman                                                                         |                         ________________________|________________________                                               |                                                                                               |                         |                                                                                               |                  daughter                                                                                      son                                                                                       (predeceased)                                                                                                                         |                                                                                                                   daughter

This case concerned succession to the estate of one Shah Zaman, who left him surviving a daughter and the daughter of a predeceased son. It was agreed that the first step in the distribution of the estate was to allot two-thirds as the notional share of the predeceased son, and one-third to the daughter. The daughter, however, contended that the two-thirds share notionally allocated to the predeceased son should then be distributed as if it were his estate and he had died leaving a daughter and an agnatic sister. According to such a calculation, the daughter of Shah Zaman would have taken her one-third share in her father's estate, plus one-half of the two-thirds share which had been notionally allocated to her predeceased brother; the orphaned grand-daughter of Shah Zaman would have taken one-half of the two-thirds share notionally allocated to her predeceased father.

The lower appellate Court accepted the argument of Shah Zaman's daughter and, on the basis of the calculations outlined above, awarded her two-thirds of her father's estate (one-third as heir to her father and one-third as heir to her predeceased brother).

The Peshawar High Court accepted the granddaughter's appeal, holding that the Ordinance, in terms, conferred upon the orphaned grandchild a share 'equivalent' to that of the deceased parent.

            Under the Ordinance Mst. Zarina daughter of [predeceased] Mir Afzal is     entitled to inherit the same share to which her father Mir Afzal was entitled in the      inheritance of his father Shah Zaman. The reason is that the Ordinance by       adopting the principle of per stripes distribution of the inheritance meant to keep            intact the share of predeceased son or daughter to be inherited by his son or    daughter, i.e. according to it, the heirs of the predeceased issue will inherit from         propositus what their predecessor-in-interest would have inherited. [2]

            (2) Lahore: Kamal Khan v. Mst. Zainab [3]

__________________________________________                         |                                                                                   |                   Brother                                                                 Sufaid Khan           (predeceased)                                                        |                         |                                                                                   |                                                         son                                                                              son                                                                              (predeceased)                                                                                       |                                                                                       |                                                                    Daughter

The controversy here concerned succession to the estate of Sufaid Khan; the contenders were the daughter of his predeceased son, and the son of his predeceased brother. Both lower Courts awarded the whole estate of Sufaid Khan to his agnatic grand-daughter.

The Lahore High Court, however, allowed the nephew's appeal, dissenting from the view of the Peshawar High Court in Mst. Zarina Jan, [4] and accepting an argument analogous to that urged on behalf of the daughter in that case.

According to the Lahore High Court, although the predeceased child of the propositus is deemed to be alive for the purpose of the initial calculation in the distribution of his parent's estate, the share allotted to the predeceased child in this notional distribution is then in turn distributed among all his heirs as if he had died immediately after his parent. Thus, in the circumstances of the case before it, the Lahore Court concluded that the predeceased son would notionally take the whole of his father's estate. This share would then be distributed among the heirs of the son, i.e. his daughter and his male agnatic cousin, the daughter taking one-half and the cousin taking the remaining half. The Lahore Court explained its interpretation of section 4 as follows:

            The law provides that the parent of such a grandchild will be deemed to be      alive for the purpose of succession. It cannot, however, be assumed that the          law ever intended to give a share to the grandchild more than what would have             been his due if the parent was actually alive when the succession opened.

            The whole process of succession depends on the fiction that Rajoo [the             predeceased son] was alive at the time of the death of Sufaid Khan. In this        event Rajoo will naturally inherit the entire estate of his father being the only       son but he can [only] pass on such of his estate to his children as is permissible             under the Islamic law of inheritance. Mst. Zenib being the only surviving child            [of the predeceased Rajoo] she cannot get more than one-half of the estate of   Rajoo and the remaining half must revert to the collaterals. If the rule laid       down in the Peshawar judgment [5] is to be adopted then Mst. Zenib will get             twice the share allowed to her under the Islamic law of inheritance. [6]

The objection that according to the method of calculation adopted by the Peshawar High Court, the agnatic grand-daughter in competition with the grandfather's nephew would 'get twice the share allowed to her under the Islamic law of inheritance' [7] is unconvincing. According to the calculations adopted by the Lahore High Court, the agnatic grand-daughter received exactly what she would have received if the Ordinance had not been enacted. Since the primary purpose was precisely to alter and improve the position of the orphaned grandchild, it should come as no surprise if, under the terms of the Ordinance, she should receive a larger share than she would have under 'the Islamic law of inheritance.' The Ordinance was basically designed to protect the interests of the orphaned grandchild in competition with a surviving child, but this is no reason for assuming that the interests of the orphaned grandchild in competition with an agnatic collateral further removed should not be even more worthy of protection.

With respect, the Lahore Court re-wrote section 4 and proceeded as if that section read:-‑

            In the event of the death of any son or daughter of the propositus before the   opening of succession, such predeceased child shall be allotted a notional            share equivalent to what he or she, as the case may be, would have received if    alive. This notional share shall then be distributed among the heirs of the             predeceased child, as if that child had died immediately after his or her parent.

            This is clearly not what the Ordinance actually says.

(3) Karachi: Muhammad Fikree v. Fikree Development Corporation, Ltd. [8]

I.M.A. Fikree                                                                         |                                                                         |             ____________________________________________________________|_________________________             |                                                                                   |               6 daughters                                                                                  son                                                                                        (predeceased)                                                                                                 |                                                                                               ______|____________                                                                                                           |                                   |                                                                                             son                          daughter

At issue in litigation was property left by Ibrahim Muhammad Aqil Fikree, who was survived by six daughters and the son and daughter of a predeceased son. The grandchildren claimed one-third of the estate, arguing that the daughters collectively should take two-thirds. This calculation would be correct were it not for the Muslim Family Laws Ordinance. The daughters argued that the grandchildren should share in the one-fourth of the estate which their father (the predeceased son of P) would have taken if alive.

The Karachi High Court ruled that the Ordinance did not apply in the circumstances of the case, because in the absence of the Ordinance, the grandchildren would not be totally excluded from a share of their grandparent's estate. The learned Judge explained:-‑

            [S] section 4 of the Muslim Family Laws Ordinance will be applicable only in   those cases where the son and daughter of a predeceased son or daughter are             sought to be excluded on account of [the] existence of other heirs of [the] same           category [as that] to which the predeceased son or daughter belonged. [9]

Again, the Court has re-written the clear terms of section 4, proceeding as if it read:-‑

          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 at     the time the succession opens, if they would otherwise be totally excluded     from any share in the estate of their grandparent, 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.

Again, this is not what the Ordinance actually says.

This case is interesting because it illustrates the only situation in which the grandchild would be better off in the absence of the Ordinance than in its presence; this can only occur when there are more than two daughters and a son's son. This curious result is a function of the fact that in Hanafi law, the daughters collectively, no matter how many there may be, are not permitted to take more than two-thirds of the estate in the presence of a male agnate. If they are present with their brother, daughters take with the son as agnatic co-sharers; each will take a share equal to hale that taken by her brother. However, if their brother is dead, leaving the daughters to take as Quranic heirs rather than co-sharers, their collective share is limited to two-thirds, with the remainder going to any male agnate who may be present.

This rule of Hanafi law contrasts sharply with the rule of Shia law, in which the daughter, as a direct descendant of the propositus, is as strong an heir as is a son, and will totally exclude not only any agnatic collaterals but also a son's son. [10]

Perhaps the fact that the Ordinance improved, in certain circumstances, the position of the Hanafi daughter should be considered an added benefit of this enlightened legislation, rather than as a reason for judicial re-writing of the statute.

[1] P L D 1975 Peshawar 252.

[2] Ibid, p. 253

[3] P L D 1983 Lahore 546.

[4] P L D 1975 Peshawar 252.

[5] Mst. Zarina Jan v. Mst. Akbar Jan, discussed above.

[6] P L D 1983 Lah. 546 at p.548.

[7] The reference here is clearly to 'Sunni law of inheritance'. Even accepting the argument of the Lahore High Court--to the effect that the share notionally allotted to the predeceased child is to be redistributed as if he had then died, rather than being passed directly to his children--if the parties were Shias, the daughter would exclude the agnatic sister in Mst. Zarina Jan (P L D 1975 Pesh. 252), and the male agnatic collateral in Kamal Khan (P L D 1983 Lah. 546).

[8] P L D 1988 Karachi 446.

[9] Ibid., p.450.

[10] See Lucy Carroll, The Hanafi Law of Intestate Succession: A Simplified Approach,' (1983) 17 Modern Asian Studies, pp.629-670; and Lucy Carroll, The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable in South Asia,' (1985) 19 Modern Asian Studies, pp. 85-124.

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