Bk 11 Pertaining to the Rules of Inheritance
(Kitab Al−Farai`d)
INTRODUCTION
Inheritance is the entry of living persons into possession of
dead persons' property and exists in some form wherever the
institution of private property is recognised as the basis of
the social and economic system. The actual forms of
inheritance and the laws governing it, however, differ
according to the ideals of different societies. The law of
inheritance in Islam is based upon five main considerations:
To break up the concentration of wealth in individuals and
spread it out in society. To respect the property right of
ownership of an individual earned through honest means. To
hammer in the consciousness of man the fact that man is not
the absolute master of wealth he produces but he is its
trustee and is not, therefore, authorised to pass it on to
others as he likes. To consolidate the family system which is
the social unit of an Islamic society. To give incentive to
work and encourage economic activity as sanctioned by Islam.
In the pre−Islamic world and even in modern societies the law
of inheritance has so many evils in it, which may be summed up
in the following points: Women had been completely denied the
share of inheritance. They were rather regarded as part of the
property of the deceased and, therefore, their right to
property by inheritance was out of question. In pre−Islamic
Arabia and other countries where there had been tribal
societies not only women were deprived of the right of
inheritance but even weak and sick persons and minor children
were given no share in it, as the common principle of
inheritance was that he alone is entitled to inherit who
wields the sword. Then in certain societies there had been
existing the law of primogeniture and it exists even today in
some of the so−called civilised parts of the world which
entitles only the eldest son to inherit the whole of the
father's property or to get the lion's share. Islam introduced
so many reforms in the laws of inheritance which can be
succinctly summed up as follows. It defined and determined in
clear−cut terms the share of each inheritor and imposed limits
on the right of the property−owner to dispose of his property
according to his whim and caprice. It made the female, who had
been prevously thought a chattel, the co−sharer with the male
and thus not only restored her dignity, but safeguarded her
social and economic rights. It laid the rules for the break−up
of the concentrated wealth in the society and helped in its
proper and equitable distribution amongst a large number of
persons. It gave a death−blow to the law of primogeniture and
thus provided the democratic basis for the division of the
property of the deceased. The above are some of the
distinguishing features of the Islamic law of inheritance.
While laying down the rules for the distribution of the estate
of the deceased, the first principle to be observed is that
the property both movable and immovable can be distributed
after meeting the following obligations: funeral expenses;
clearing off the debts incurred by the deceased; payment of
bequest, if any, to the extent of one−third of the total
assets. It may be remembered that the Mahr of the wife, if it
had not been paid, is included in the debt. Moreover, it is
not lawful to make a bequest in favour of a person who is
entitled to a share in the inheritance. Four persons cannot
get inheritance:
(a) a fugitive slave who has fled away from his master, (b)
one who has murdered one's predecessor intentionally or
unintentionaly (c) one who professes a religion other than
Islam, (d) one living in Dar−ul−Harb cannot inherit the
property of one living in Dar−ul−Islam and vice versa.
According to Islam, the heirs have been divided into three
classes. (A) Dhaw−u'l−Fara'id are those persons who have a
right to definite shares in assets left by the deceased. These
sharers are twelve in number; four males: father, grandfather,
uterine brothers and husband; and eight females: wife, single
daughter, son's daughter, mother, grandmother, full sister,
consanguine sister, uterine sister. Father's share is
one−sixth when the deceased leaves a son or a son's son, but
if the deceased is not survived by a son or grandson his
father will, in addition to this share (one−sixth), also get a
share of being 'Asaba. The grandfather's share is like that of
father's share but in three conditions: According to Imam
Bukhiri and Imam Muslim, the presence of father deprives even
the brothers of their share in the inheritance. but this is
not the case with the grandfather. Imam Abu Hanifa is of the
opinion that the presence of grandfather deprives the brother
of his share in the inheritance. If the father of the deceased
is alive, then the share of the mother is of what is left from
the share of the wife of the deceased. The presence of
grandfather does not reduce the share of the mother of the
deceased. The grandmother of the deceased has no share in the
presence of the father of the deceased but she has a share in
the presence of the grandfather. The third set of sharers are
uterine brothers and sisters. They are entitled to one−sixth
if their number is one, and one−third if they are more than
one. The husband's share is one−half of the property of the
deceased wife if she has no children, but in case of children
it is one−fourth. The wife is entitled to one−fourth if the
husband dies childless; otherwise it is one−eighth. Real
daughter: one−half when alone, and two−thirds if more than
one. If the deceased is survived by a male child also. the
daughters are then treated as Asaba and the male child would
get double of what falls to the lot of daughters. The
granddaughters stand on the same level as daughters. But in
case the deceased is survived by one real daughter and one or
more than one granddaughter they would get one−sixth. The
granddaughter is not entitled to any share if the deceased is
survived by a son, but if he is survived by grandsons and
granddaughters, they would be treated as 'Asaba and the male
grandchild would get double of what goes to the female
grandchild. Full sister gets one−half if she is alone, and
two−thirds if they are more than one. Consanguine sister is
entitled to one−half if one, and two thirds if more. Mother is
entitled to one−sixth when she has a child or grandchild, and
in case of being childless she gets one−third of the share. If
the deceased is survived either by paternal grandmother or
maternal grand− mother or even by both, they are entitled to
one−sixth. The grandmother (maternal) is deprived of her share
if the mother of the deceased is alive; and if father is alive
the paternal grandmother is deprived of this share. (B) When
the heirs of the first group have received the respective
shares, the residue of the assets falls to the share of those
relatives who are called Asaba which, according to the
Shari'ah, implies those relatives in whose line of
relationship no female enters. This is the second group of
inheritors. There is no fixed share of the 'Asabat. If the
deceased is not survived by any Dhaw−u'l−Fara'id, the whole of
the property falls to their share; and If Dhaw−u'I. Fara'id
are there to get their due share, the residue will be taken by
the Asabat. The following are the 'Asabat: Son: He is the
first to get the residue in order of succession. The daughters
are entitled to half of the share as given to the son. The
grandsons are not entitled to any share in the presence of the
son. If the son is not living, then the grandson is entitled
to a share in the inheritance. If there are more than one son,
the inheritance will be distributed equally amongst them. The
father, grandfather and the great−grandfather are included in
the category of Dhaw−u'l−Fara'id. If, however, the deceased is
not survived by category of a son, grandson of great−grandson,
then the father will fall under the category of 'Asaba, and,
in the absence of the father, the grandfather assumes that
position. If the deceased is not survived by son, or grandson
or father or grandfather, i. e. none amongst the 'Asabat, then
the brother, and in the absence of brother his son, and in the
absence of son, his grandson will be entitled to share in the
inheritance as 'Asaba and the female would also join them in
share claiming half of the share as compared with male. If
unfortunately the deceased is survived by none of the
above−mentioned relatives amongst the 'Asabat, then
consanguine brother will be entitled to share in the
inheritance and he will be preferred to full brother's son.
Then comes the turn of full paternal uncle. (C) The last
category of inheritors are known ad Dhaw−u'l Arham, i. e.
relations connected through females, but it is in extremely
rare cases that they get any share in the inheritance. The
following relatives come under this category. The son of the
daughter and daughter of the daughter. The son of the daughter
of the son, and daughter of the daughter of the son and their
children. Maternal grandfather, maternal grandfather of the
father, the grandfather of the mother, maternal grandfather of
the mother, the grandmother of the mother, the children of the
sisters, the sisters of the father and those of the mother,
etc.
Chapter 1: GIVE THE INHERITANCE TO THOSE ENTITLED TO IT
Bk 11, Number 3928:
Usama b. Zaid reported Allah's Messenger (may peace be upon
him) as saying: A Muslim is not entitled to inherit from a
non−Muslim, and a non−Muslim is not entitled to inherit from a
Muslim.
Bk 11, Number 3929:
Ibn Abbas (Allah be pleased with them) reported Allah's
Messenger (may peace be upon him) as saying: Give the shares
to those who are entitled to them, and what remains over goes
to the nearest male heir.
Bk 11, Number 3930:
Ibn 'Abbas (Allah be pleased with them) reported Allah's
Messenger (may peace be upon him) as saying: Give the shares
to those who are entitled to them, and what is left from those
wno are entitled to it goes to the nearest male heir.
Bk 11, Number 3931:
Tawus reported on the authority of his father Ibn Abbas (Allah
be pleased with them) narrating that Allah's Messenger (may
peace be upon him) said: Distribute the property amongst Ahl
al−Fara'id, according to the Book of Allah, and what is left
out of them goes to the nearest male heir.
Chapter 2: THE LAW OF INHERITANCE IN REGARD TO AL−KALALA (THE
PERSON WHO DIES LEAVING NO CHILD OR PARENT)
Bk 11, Number 3932:
Jabir b. 'Abdullah (Allah be pleased with them) reported: I
fell sick and there came to me on foot Allah's Messenger (may
peace be upon him) and Abu Bakr for inquiring after my health.
I fainted. He (the Holy Prophet) performed ablution and then
sprinkled over me the water of his ablution. I felt some
relief and said: Allah's Messenger, how should I decide about
my property? He said nothing to me in response until this
verse pertaining to the law of inheritance was revealed:" They
ask you for a decision; say: Allah gives you a decision
concerning the person who has neither parents nor children"
(iv. 177).
Bk 11, Number 3933:
Jabir b. 'Abdullah (Allah be pleased with him) reported:
Allah's Apostle (may peace be upon him) and Abi Bakr (Allah be
pleased with him) visited me on foot in Banu Salama, and found
me unconscious. He (the Holy Prophet) called for water and
performed ablution and sprinkled out of it (the water) over
me. I felt relieved. I said: Allah's Messenger, what should I
do with my property? And this verse was revealed:" Allah
enjoins you concerning your children: for the male is equal of
the portion of two females."
Bk 11, Number 3934:
Jabir b. 'Abdullah (Allah be pleased with them) reported:
While I had been ill Allah's Messenger (may peace be upon him)
visited me and Abu akr (Allah be pleased with him) was with
him, and they both came walking on foot. He (the Holy Prophet)
found me unconscious. Allahs Messenger (may peace be upon him)
performed ablution and then sprinkled over me the water of his
ablution. I felt relieved regained my consciousness) and found
Allah's Messenger (may peace be upon him) there. I said:
Allah's Messenger, what should I do with my property? He gave
me no reply until the verse (iv. 177) relating to the law of
inheritance was revealed.
Bk 11, Number 3935:
Jabir b. Abdullah (Allah be pleased with him) reported: Whilo
I was ill Allah's Messenger (may peace be upon him) came to me
and found me unconscious. He (the Holy Prophet) performed
ablution, and sprinkled over me the water of his ablution. I
regained my consciousness and said: Allah's Messenger, my case
of inheritance is that of Kalala. Then the verse pertaining to
the inheritance ( of Kalala) was revealed. I (one of the
narrators) said: I said to Muhammad b. Munkadir: (Do you mean
this verse)" They ask you; say: Allah gives you decision in
regard to Kalala" (iv. 177)? He said: Yes, it was thus
revealed.
Bk 11, Number 3936:
This hadith is transmitted on the authority of Shu'ba but with
a slight variation of words.
Bk 11, Number 3937:
Abu Talha reported: 'Umar b. al−Khattab (Allah be pleased with
him) delivered a sermon on Friday and made a mention of
Allah's Apostle (may peace be upon him) and he also made a
mention of Abu Bakr (Allah be pleased with him) and then said:
I do not leave behind me any problem more difficult than that
of Kalala. I did not refer to Allah's Messenger (may peace be
upon him) more repeatedly than in case of the problem of
Kalala, and he (the Holy Prophet) never showed more annoyance
to me than in regard to this problem, so much so that he
struck my chest with his fingers and said: 'Umar, does the
verse revealed in summer season, at the end of Sura al−Nisa'
not suffice you? Hadrat 'Umar (then) said: If I live I would
give such verdict about (Kalala) that everyone would be able
to decide whether he reads the Qur'an or he does not.
Bk 11, Number 3938:
This hadith has been narrated on the authority of Qatada with
the same chain of transmitters.
Chapter 3: THE LAST VERSE REVEALED WAS THAT PERTAINING TO
KALALA
Bk 11, Number 3939:
Al−Bara' (Allah be pleased with him) reported that the last
verse revealed in the Holy Qur'an is:" They ask thee for a
religious verdict; say: Allah gives you a religious verdict
about Kalala (the person who has neither parents nor
children)" (iv 177).
Bk 11, Number 3940:
Abu Ishaq said that he heard al−Bara' b. 'Azib (Allah be
pleased with him say: The last verse revealed (in the Holy
Quran) is that pertaining to Kalala, and the last sura
revealed is Sura al−Bara'at.
Bk 11, Number 3941:
Abu Ishaq said that he heard al−Bara' b. 'Azib (Allah be
pleased with him) say: The last complete sura revealed (in the
Holy Qur'an) is Sura Tauba (i e. al−Bara'at, ix.), and the
last verse revealed is that pertaining to Kalala.
Bk 11, Number 3942:
Aba Ishaq reported this hadith on the authority of al−Bara'
(Allah be pleased with him) with a slight variation of words,
viz. the last sura that was revealed complete.
Bk 11, Number 3943:
Al−Bara' (Allah be pleased with him) reported that the last
verse revealed was:" They ask of thee religious verdict.."
(iv. 177).
Chapter 4: HE WHO LEAVES BEHIND PROPERTY, THAT IS FOR THE
HEIRS
Bk 11, Number 3944:
Abu Huraira (Allah be pleased with him) reported that when the
body of a dead person having burden of debt upon him was
brought to Allah's Messenger (may peace be upon him) he would
ask whether he had left property enough to clear off his debt,
and if the property left had been sufficient for that
(purpose), he observed funeral prayer for him, otherwise he
said (to his companions): You observe prayer for your
companion. But when Allah opened the gateways of victory for
him, he said: I am nearer to the believers than themselves, so
if anyone dies leaving a debt, its payment is my
responsibility, and if anyone leaves a property, it goes to
his heirs.
Bk 11, Number 3945:
This hadith has been narrated on the authority of al−Zuhri
through another chain of transmitters.
Bk 11, Number 3946:
Abn Huraira (Allah be pleased with him) reported Allah's
Apostle (may peace be upon him) having said this: By Him in
Whose Hand is the life of Muhammad, there is no believer on
the earth with whom I am not the nearest among all the people.
He who amongst you (dies) and leaves a debt, I am there to pay
it, and he who amongst you (dies) leaving behind children I am
there to look after them. And he who amongst You leaves behind
property, that is for the inheritor whoever he is.
Bk 11, Number 3947:
Hammam b. Munabbih reported: This is what Abu Huraira (Allah
be pleased with him) narratted to us from Allah's Messenger
(may peace he upon him). And he narrated many ahadith, and one
was this: Allali's Messenger (may peace be upon him said: I
am, according to the Book of Allah, the Exalted and Majestic,
nearest to the believers of all the human beings. So whoever
amongst you dies in debt or leaves behind destitute children,
you should call me (for help) ), for I am his guardian. And
who amongst you leaves property, his inheritor is entitled to
get it, whoever he is.
Bk 11, Number 3948:
Abu Huraira (Allah be pleased with him) reported Allah's
Apostle (may peace be upon him) as saying: He who leaves
property, that is for the inheritors; and he who leaves behind
destitute children, then it is my responsibility (to look
after them). This hadith has been narrated on the authority of
Shu'ba with the same chain of transmitters.
