Obligatory bequest rule is applicable for the orphan
grandchild in Islamic law of succession. In order to give property to the child
of the pre-deceased son of the praepositus In Pakistan and Bangladesh the rule
of representation and in the middle-east country the rule of obligatory bequest
is applied.
Traditionally in sharia law the orphan grandchild
doesnot allowed to take propertyof his or her predeceased father or mother.So
the system of Obligatory bequest is introduced by many muslim countries.
To solve the problem of exclusion of the orphan
grandchildren from inheritance a special provision prescribing of bequest in
their favour equal to what the parent would have inherited had he survived
provided that this does not exceed to the total one third of the praepositus
property is called as Obligatory Bequest.
It will be put into effect by operation of law and not
through the voluntary act off the testator.
In Quranin Sura Baqara,verse 180 it is says about
bequest in favour of parents and relatives.
Almighty Allah says, It is prescribed for you, when
death approaches any of you, if he leaves wealth, that he make a bequest
parents and next of kin, according to manners. This is a duty upon the pious.
Some jurist says that this above verse should not be
applied for the legal heirs. But Imam Shafi and some other Islamic jurist opins
that the above verse of quran is not applicable for those heirs who got the
property by inheritance.
Ibn Hazm also says that the quranic verse implied a
definite legal obligation to make bequest in favour of close relatives who were
not legal heirs and that if the deaceased had failed in his duty to make this
obligatory bequest the court should make it for him.
The Egyptian reformers introduced this doctrine at first
for the benefit og orphan grandchild.
Some scholars say that the obligation of making bequest
means that whoever makes it will be rewarded for that and whoever does not make
it will be sinful.
If a person dies before making a bequest for his
desecendant’s children, they are to be given out of his property an amount
equal to that which he was to bequeath during his lifetime. This is because it
is a debt on his part and if he dies before writing his bequest in this regard,
this debt is not to be cancelled because of his death.
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