By Aisha Hasnain
Young Sarwar provided for his family by running a small business. At age nineteen, naive and innocent, he was to lend a few lakhs to his paternal uncle. Months wore on as Sarwar reminded his uncle of repaying him the money. Came one day, Sarwar returned home in his torn shirt soaked with his own blood. His uncle had beaten him up because this time Sarwar would not leave without his money as his sister’s wedding day was nearing and he needed the money for the same.
Toyba, a young woman, was made to leave home and run to her mother and step-father’s after her cousin-brother backed by his father (Toyba’s uncle) caused trouble for her by interfering with their grandfather’s decision to leave a share for Toyba in his will. After a few months, the young cousin died and his own children became orphans. “I shall see what my uncle shall deem right for his own grandchildren now,” Toyba said.
Sana, her sister and their widowed mother now went to the revenue official, the Patwari, to enquire about their share in the property after Sana’s grandfather died. Their uncles rushed to the Patwari claiming that Sana and her family had no right over any share in the property, and that their father (Sana’s grandfather) had left no will whatsoever. True, he had not. Worried, Sana and her mother returned to the official, desperately asking for a solution. The official assured them of help and courageously proceeded to draft the property documents in their name. Furious at such an unanticipated move, the uncles registered a case against the official. In the court, as Sana and her mother sat shaking in their shoes, the judge asked the official:
“Have you drafted these documents?”
“Yes, Your Honour,” the official replied.
“Under what provision?”
“Your Honour, their grandfather has left a wasiyat [a will] for them.”
“Where is the will?”
“Your Honour, the defendants’ grandfather had left some of his land in their care so that the defendants could cultivate it for means of income.”
“Is it true?” the Judge asked the uncles. ‘Yes,’ they replied confused, caught off guard. The official continued:
“Your Honour, the grandfather was an unlettered man. Hence, his decision to let the defendants have the hold of the land is his form of the will.”
The Judge agreed with the official, favoured the defendants and gave them legal rights over the land. This was yin and yang between de jure and de facto.
Afshana could not recall what her paternal aunt looked like until the latter came to see Afshana’s younger brother who was lying on the deathbed. The aunt was the only kind enough relative to show up after two decades. No one else ever came from her deceased father’s family to see the widowed mother living with her brother or the children who lived in an orphanage.
The argument of the greedy kinfolk of an orphan: “Orphans are not mentioned in the inheritance law in the Holy Book, thereby they stand ousted from any inheritance.” Well, there is no direct mention, for sure; however, I ask, “Where is it written in the Holy Book that the orphans shall ‘not’ receive any share?”
Qur’an:
- Did you see him who denies the Hereafter? [107:1]
Such is the one who repulses the orphan [107:2]
- And when the relatives and the orphans and the poor are present at the time of division of inheritance, give them something out of it [the property] and speak to them words of appropriate kindness. [4:8]
Let those who, if they themselves died, would fear for the future of their helpless children, let them fear Allah and speak appropriate words [i.e., show the same concern for orphans] [4:9]
- Do good to your parents and relatives, and orphans and the needy [2:83]
- And that you stand firm for justice to orphans. [4:127]
- So as for the orphan, do not oppress him [93:9]
- And you devour others’ inheritance greedily [89:19]
- But no, you do not honour the orphan [89:17]
There are two things Allah gave a human: Shariat, and Shu’oor. Shariyat is law. Shu’oor is sense. The inheritance to orphans is one of those things He has explained in His final book, the Qur’an, not in words of one syllable. Some matters were left by Him for us humans to evaluate sensibly, looking for guidance in the light of the holy Qur’an and the teachings of Prophet Muhammad (PBUH). But we have become good at nothing but creating controversies out of the ambiguity in these matters.
One day I asked my father, “Baba, how is it that I am sure I am born in the right belief and the other person in the wrong one? How is the latter to be blamed if they were born in the wrong belief?” My father answered: “No, Aisha, God shall ask you, ‘If in the world you had time to study so much of science and art, how come did you not care to study the book I sent for you?’” I think my father did a fair job at raising me. If I am to turn into a rogue, that would be on me now.
This inheritance ‘puzzle’ is as simple as it gets: Aisha is a legal heir of her father, Hasnain. In turn, Hasnain is a legal heir of his own father, Ghulam Rasool, who is also Aisha’s grandfather. Hasnain will pass on the ancestral property to Aisha which he himself will inherit from Ghulam Rasool. Since Ghulam Rasool is alive, the division of the property has not taken place yet. Sadly, Hasnain dies before he could inherit any fortune from his father. Now Aisha finds no inheritance not because she ceases to be the daughter of her deceased father who ‘was’ the son of Ghulam Rasool, but simply and plainly because her father died without having received any property from Ghulam Rasool. But losing her father is what her gluttonous co-heirs equate with ‘Aisha is no longer entitled to any share in the property’. There is no divine law or lack of it behind this no-share theory. It is poor math and pure politics.
The following are the verses from the Qur’an for the orphaned children whose parent(s) died while they were minors and were left with some wealth from them:
- And do not eat up their [the orphans’] property along with your own. It is surely a mighty sin. [4:2]
- Indeed those who unjustly eat up the property of orphans eat up a fire into their own bellies. And they will soon be burning in a Blazing Fire. [4:10]
- And do not go near the wealth of the orphan [6:152]
In case the father had gathered no savings or security in his lifetime that his legal heirs could inherit, what is the way out for Aisha? Here comes the crucial role of Ghulam Rasool. There is a reason that the Islamic law has allowed Ghulam Rasool to make a will for any cause of his choice within one-third of his wealth and discouraged him from giving away his property to his children while he is still alive and in need of his wealth. Ghulam Rasool has the freedom to leave a will or leave everything for the children. The trick though is that Ghulam Rasool is barred from making the will for his legal inheritors. In his life, he can give anyone anything, but once he leaves the world, his say in things, except for his will made in compliance with the Muslim law, holds no merit. The Shariat takes over. My father cannot leave a one-third property will in my name and let my siblings and his wife look for their small shares in the two-third of his property – movable or immovable – which I am again also a rightful shareholder of apart from receiving a will.
What one can deduce from the Qur’anic verses mentioned above, and many more not mentioned in this article, is that the grandfather is under an obligation to make a will for his orphaned grandchildren. If this society had been kind enough, the title of this article could have been the reverse: How an Orphan Lands a Lion’s Share in the Property by Means of a Will? If the grandfather has five children and fifteen grandchildren, the twenty together would have to look for their share in the two-third while the orphan singularly got one-third. While this is wishful thinking and also something I wouldn’t propose, give the orphan as much of share as the other children in the family would (indirectly) inherit from the grandfather, give or take, for creep’s sake!
- The stories narrated in the article are true but the names have been changed. The author goes by her pen name, Aisha Hasnain. She can be reached at aishahasnain02@gmail.com.
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