Does a grandson inherit if his father died before the grandfather? In the four Sunni schools and the Ahl-e-Hadith view, not while the grandfather leaves a living son: the nearer male relative excludes the further one. Pakistani law is different: under section 4 of the Muslim Family Laws Ordinance 1961 the children of a son or daughter who died first receive the share their parent would have received. A grandfather can also leave his orphaned grandchildren up to one third of his estate by will.
The yateem pota question is one of the most painful in inheritance. A son dies young, his children grow up with their grandparents, and when the grandfather dies they find that, by the classical rules, their uncles inherit and they do not. Pakistan changed this by law in 1961, and the change has been argued over in the courts ever since. This guide explains both positions and what the wirasat calculator shows.
The classical rule in the Sunni schools
The Prophet ﷺ said: “Give the fixed shares to those entitled to them, and what remains goes to the nearest male relative” (Sahih al-Bukhari 6732). A son is nearer than a son’s son, so while any son is alive, the grandsons through a son who died first do not inherit as residuaries. A son’s daughter is excluded in the same way. When the deceased leaves no son at all, the son’s children do inherit: a son’s son takes a son’s place, and a son’s daughter a daughter’s place. A daughter’s children belong to the distant relatives (dhawu al-arham) and inherit only when no closer heir exists.
Ja’fari fiqh
In Shia Ja’fari fiqh grandchildren take the place of their parent, but only when the deceased has no child of their own alive. While a son or daughter is alive, grandchildren through another child do not inherit. When they do inherit, each group takes the share their parent would have taken.
Section 4 of the Muslim Family Laws Ordinance 1961
Section 4 says that when a son or daughter of the deceased has died before the succession opens, their children living at that time receive, per stirpes, the share their parent would have received if alive. It applies to Muslims in Pakistan, and patwaris and civil courts record inheritance under it.
In 2000 the Federal Shariat Court, in Allah Rakha v. Federation of Pakistan, held section 4 repugnant to the injunctions of Islam. That judgment was appealed to the Shariat Appellate Bench of the Supreme Court, the appeal is still pending, and while it is pending the section stays in force. So in Pakistan today the law and the Sunni fiqh can give different answers for the same family.
Worked example
Rashid dies leaving Rs 30,00,000 and one living son, Tariq. His other son, Khalid, died two years earlier, leaving a son and a daughter.
- Sunni fiqh: Tariq takes everything (Rs 30,00,000). Khalid’s children inherit nothing from their grandfather.
- Section 4: each son’s share is half. Tariq takes Rs 15,00,000, and Khalid’s Rs 15,00,000 passes to his children, the boy twice the girl: Rs 10,00,000 and Rs 5,00,000.
In the calculator, mark Khalid as “died before” and add his children under him. Because the two answers differ, the result appears in two tabs, “Pakistani law (patwari)” and your madhab’s fiqh, and the PDF follows the tab you choose.
What a grandfather can do: a will
Because orphaned grandchildren are not heirs while a son is alive, a grandfather may leave them a will (wasiyyat) of up to one third of his estate in every Sunni school, with no need for the other heirs’ consent. Many scholars strongly encourage this, citing the verse “it is prescribed for you, when death approaches, to make a bequest for parents and close relatives” (al-Baqarah 2:180). Several Muslim countries, starting with Egypt in 1946, made such a bequest obligatory (wasiyya wajiba). He may also give them gifts during his lifetime. The uncles, too, may freely give their orphaned nephews and nieces part of what they inherit.
What to do now
- Work out both positions in the wirasat calculator (or the Urdu page) and download the PDF.
- Ask a mufti what your family should do as a matter of religion, and a lawyer what will be recorded in the land records.
- If you are a grandparent with orphaned grandchildren, write your will now. A will within one third is valid in every school and avoids the dispute entirely.
Frequently asked questions
Yateem pote ko dada ki wirasat milti hai?
Sunni fiqh mein chacha (dada ka zinda beta) maujood ho to nahi. Pakistani qanoon (dafa 4, 1961) ke tehat use apne walid ka hissa milta hai. Dada wasiyyat se ek tihai tak de sakte hain.
Is section 4 still the law in Pakistan?
Yes. The Federal Shariat Court held it un-Islamic in 2000, but the appeal is pending before the Shariat Appellate Bench of the Supreme Court, so the section remains in force.
Does section 4 also cover a daughter's children?
Yes. The children of a predeceased daughter receive the share their mother would have received.
Do orphaned grandchildren inherit if there is no living son?
Yes, in every school: a son's children take the place of the son when no son is alive. The difference arises only when an uncle is alive.