Fatwa No : 97195
Ruling on the share of orphaned grandchildren in their grandfather’s estate

Ruling on the share of orphaned grandchildren in their grandfather’s estate

My father passed away in 1992. My grandfather owned a 120-square-yard house. In 1982, my grandfather put the house only in the name of my paternal uncle (my father’s elder brother), but he merely put it in his name; formal ownership and possession were not actually transferred to him. Later, both my grandfather and grandmother also passed away. Now my paternal uncle wants to sell the house and distribute the shares among all the brothers and sisters.
My father passed away before both my grandfather and grandmother. Therefore, my uncles say that since my father died before his father (my grandfather), he has no share in the inheritance, and consequently his children (i.e., us) also have no share. There are also two other paternal uncles and one paternal aunt. My elder paternal uncle and the two other paternal uncles used to live in the same house, whereas we lived separately.
Now my elder paternal uncle’s eldest son is purchasing the house, and my elder paternal uncle wants to give each of his brothers and sisters their respective shares.
The question is: Does my family have any Shariah-recognized share in this house merely because my deceased father passed away before my grandfather? Kindly provide Islamic legal guidance regarding this matter. Jazakum Allahu Khairan.

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clarified that if a son or daughter dies during the lifetime of his or her parents, that deceased son or daughter has no Shariah-recognized share in the inheritance of his or her parents. Therefore, in the case in question, since the questioner’s deceased father passed away during the lifetime of his own father (the questioner’s grandfather), the questioner’s paternal uncle is legally correct in stating that neither his deceased brother (the questioner’s father) nor the latter’s children have any share in the estate of his father (the questioner’s grandfather).
Accordingly, the questioner and his other siblings have no right to claim a share in the house in question. However, if the heirs of the deceased grandfather—such as the paternal uncle, other paternal uncles, paternal aunt, etc., wish, of their own free will, to give something to the questioner and his siblings as an act of maintaining family ties, they have full authority to do so, and this would certainly be a source of reward for them. Nevertheless, doing so is not obligatory upon them. Therefore, the questioner and his siblings should refrain from demanding such a share from them on their own initiative.

مأخَذُ الفَتوی

کما فی ردالمحتار: تحت (قوله هي علم بأصول إلخ) (الی قولہ) وشروطه: ثلاثة: موت مورث حقيقة، أو حكما كمفقود، أو تقديرا كجنين فيه غرة ووجود وارثه عند موته حيا حقيقة أو تقديرا كالحمل والعلم بجهة إرثه،الخ (ج6 ص 758 کتاب الفرائض ط سعید)۔
وفی تکملۃ فتح الملھم: وقد ذکر الإمام أبو بکر الجصاص الرازی رحمہ اللہ فی أحکام القرآن والعلامۃ العینی فی عمدۃ القاری ، الإجماع علی أن الحفید لا یرث مع الابن، الخ(ج2 ص 18 باب ألحقو الفرائض بأھلھا ط دارالعلوم کراتشی)۔