Question

Dear Ghamidi Sb., AOA,

I have a question. Zaid dies, had no
children. His wife had died earlier. He had 4 brothers and 3 sisters –
out of which 2 brothers and 1 sister died before him. Question is: will
the kids of these 2 brothers and 1 sister get a share in the
inheritance? Is it correct that according to Hanafi Shariya, there is no
share for these kids? Pakistan family ordinance 1961 mentions yateem
grandchildren but does not mention in case of brothers/sisters. Text
follows for the ordinance. Succession act 1925 section 44, 45 list a
case for brothers, sisters but not sure if it applies to Muslims?

http://punjablaws.gov.pk/laws/777a.html
Family Law:

1.
Short title, extent, application and commencement.– (1) This Ordinance
may be called the Muslim Family Laws Ordinance, 1961. (2) It extends to
the whole of [2][the Punjab], and applies to all Muslim citizens of
Pakistan, wherever they may be. ..

4. Succession.– 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, as the case may be, would have received if alive.

http://sja.gos.pk/assets/BareActs/SUCCESSIONACT 1925.pdf

PART V Intestate Succession CHAPTER I PRELIMINARY 29. Application of
Part.___

(1)
This Part shall not apply to any intestacy occurring before the first
day of January, 1866, or to the property of any Hindu, 1 [Muslim],
Buddhist,
Sikh or Jaina. (2) Save as provided in sub-section (1) or
by any other law for the time being in force, the provisions of this
Part shall constitute the law of 2
[Pakistan] in all cases of
intestacy. 1Sub. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”. 2
Subs. by the Central Laws (Statute Reform)
Ordinance, 1960 (21

27.
Persons held for purpose of succession to be similarly related to
deceased. For the purpose of succession, there is no distinction___ (a)
between those who are related to a person deceased through his father,
and those who are related to him through his mother; or

44. Where
intestate’s father dead and his mother, a brother or sister, and
children of any deceased brother or sister, living. If the intestate’s
father is
dead but the intestate’s mother is living, and if any
brother or sister and the child or children of any brother or sister who
may have died in the intestate’s lifetime are also living then the
mother and each living brother or sister, and the living child or
children of each deceased brother or sister, shall be
entitled to the
property in equal shares, such children (if more than one) taking in
equal shares only the shares which their respective parents would have
taken if living at the intestate’ s death. Illustration
A, the
intestate, leaves his mother, his brothers John and Henry, and also one
child of a deceased sister, Mary, and two children of George, a deceased
brother of the half blood who was the son of his father but not of his
mother. The mother takes one-fifth, John and Henry each takes one-fifth,
the child of Mary takes one-fifth, and the two children of George
divide the remaining one-fifth equally between them. 45. Where
intestate’s father is dead and his mother and children of any deceased
brother or sister living. If theintestate’s father is dead, but the
intestate’s mother is living,and the brothers and sisters are all dead,
but all or any of them have left children who survived the intestate,
the mother and the child or children of each deceased brother or sister
shall be entitled to the property in equal shares, such children (if
more than one) taking in equal shares only the shares which their
respective parents would have taken if living at the intestate’s death.

Illustration
A,
the intestate, leaves no brother or sister, but leaves his mother and
one child of a deceased sister, Mary, and two children of a deceased
brother, George. The mother takes one third, the child of Mary takes
one- third, and the children of George divide the remaining one third
equally between them.

Answer

Salam. When a person dies leaving behind only a few brothers and sisters while others have died,
the surviving brothers and sisters and the children of the dead
brothers and sisters shall get the share of the wealth of the deceased.
That’s our position.

Answered by: Mushafiq Sultan

Date: 2017-07-05