Baslama : Thursday, November 1,l990 Richardson, Texas Bitti (musvedde ) : Sunday, Nov. 25,1990 Bitti ( musvedde rotusleri) : Saturday, Dec. 8, 1990. Bitti ( Bashir Shah'in revisions ) : Wednesday April 24, 1991 Bitti (Revisions of Br.M.Salah al-Din) Nov.10,91 Bitti (Second revision of Ausaf Hussain) August 6,1992 ISLAMIC INHERITANCE LAW Dr. Yusuf Ziya Kavakci LLB. BD. Ph.D. (Istanbul) Ex-Dean & Professor of Islamic Law The College of Islamic Studies The Ataturk University, Erzurum, Turkey In the memory of My Parents, Relatives and Terzi Ahmed Efendi ( Topaloglu ) Adapazari/Turkey who taught me the Islamic Inheritance Law both in his home and on his farm, when I was fifteen years old. And also in the rememberance of Fikri Yavuz (Istanbul/Turkey) who taught me the same science when I was nineteen years old. C o n t e n t s Dedication ......................................... 3 Contents ......................................... 5 Abbreviations ......................................... 9 P r e f a c e ......................................... 11 I n t r o d u c t i o n ................................. 17 1) Characteristics of al-Faraid ....................... 17 2) The Area of Application ............................ 18 C h a p t e r The Background and Basics of Inheritance ................ 21 1) The Procedure ...................................... 21 2) The Stages to be Followed .......................... 22 3) The Principles and Evidences of Inheritance ........ 25 A) The Qur'an ....................................... 25 4) Seven Rules ........................................ 26 B) The Five rules which Stem from Sunnah ............ 26 C) The Principles Based on the Consensus ............ 27 5) The Causes of Inheritance .......................... 27 a) Blood Relation ................................... 27 b) Marriage ......................................... 28 c) Wala' ............................................ 28 6) Beneficiaries of an Estate ......................... 28 7) The Impediments of Inheritance ..................... 29 a) Slavery .......................................... 30 b) Murder ........................................... 30 c) Differences of Religion .......................... 30 d) Differences of Country ........................... 31 C h a p t e r Heirs With Fixed Shares .................................. 33 1) Group A ............................................. 33 2) Group B ............................................. 33 3) The Number of Shareholders .......................... 34 4) Shares in Detail .................................... 34 A) Male Group ........................................ 32 I. Father ........................................... 34 5) Symbols ............................................. 35 II. Real Grandfather ................................ 36 Practical Problems .................................. 37 Problems which are not Common with Father ........... 38 III. Children of Mother ............................. 39 Some Problems ....................................... 39 IV. Husband ......................................... 40 Some Problems ....................................... 41 B) Female Group ....................................... 42 I. Wife ............................................. 42 A Few Problems ...................................... 42 II. Daughter/s ...................................... 43 Some Problems ....................................... 43 III. Son's Daughter/s ............................... 44 Ibniyyahs Have Variants ............................. 44 A Scheme ............................................ 45 Problems of Ibniyyahs ............................... 46 IV. Full Sister/s ................................... 47 Problems ............................................ 48 V. Halfsister/s on Father's Side .................... 48 Problems ............................................ 49 VI. Halfsister/s on Mother's Side ................... 50 VII. Mother ......................................... 51 Problems ............................................ 51 VIII. Real Grandmother .............................. 53 Charts .............................................. 55 Problems ............................................ 55 C h a p t e r Asabah, Zawu 'l-Arham and Hajb ........................... 57 1) Asabah .............................................. 57 A) Asabah Nasabiyyah .................................. 57 I) Asabahs by Themselves ............................. 57 Some Problems ........................................ 58 a) Descendants ...................................... 58 b) Ascendants ....................................... 59 c) Descendants of Father ............................ 59 d) Descendants of Grandfather ....................... 60 II) Asabahs Because of Others ......................... 60 Some Problems ..................................... 61 III) Asabahs Together With Others ..................... 62 Some Problems ..................................... 62 B) Asabah Sababiyyah .................................... 62 Problems ............................................. 65 2) Zawu 'l-Arham ......................................... 65 I. First Group ......................................... 67 II. Second Group ....................................... 69 III. Third Group ....................................... 70 IV. Fourth Group ....................................... 70 3) Hajb .................................................. 72 a) Partial Exclusion ................................... 72 b) Total Exclusion ..................................... 73 Some Problems ........................................ 74 C h a p t e r Numerics of Inheritance Law .............................. 77 Denominator .............................................. 77 A) Awl ................................................. 78 Awliyyah Problems .................................... 78 B) Raddiyyah ........................................... 80 a) First Group ....................................... 81 b) Second Group ...................................... 81 c) Third Group ....................................... 83 d) Fourth Group ...................................... 83 C) The Relations Among Numbers ......................... 84 a) Tamathul .......................................... 85 b) Tadakhul .......................................... 85 c) Tawafuq ........................................... 85 d) Tabayun ........................................... 86 D) al-Tashih ............................................ 86 I. The Rules Among Shares and Their Holders ........... 86 II. The Rules Among the Heads of the Shares ........... 86 C h a p t e r Miscellaneous ............................................ 89 A) Creditors ........................................... 89 Problems ............................................. 89 B) Takharuj ............................................ 90 C) Muqasamah ........................................... 90 Problems ............................................. 91 Muqasamah Problems ................................... 92 The Akdariyyah Problem ............................... 93 D) Munasakhah .......................................... 93 Problems ............................................. 94 E) Hermaphrodites ...................................... 95 F) Fetus ............................................... 95 G) A Lost Person ....................................... 97 H) An Apostate ......................................... 98 I) Captive ............................................. 98 J) The Deceaseds Who Died Together ..................... 99 B i b l i o g r a p h y ................................. 101 The Abbreviations Frequently Encountered in the Book B : Baqi ( The remainder ) Br : Brother BrS : Brother's son D : Daughter DD : Daugter's daughter DS : Daughter's son Ex-M : Ex-master and ex-owner of the freedman and freedwoman Ex-WM : Ex-woman Master of freedman and freedwoman F : Father Fbr : Father's brother FFF : Father of the father's father Full br: Full brother FuncleF: Full uncle on the father's side ( Notice that uncle may mean in English father's brother as well as mother's brother. Also aunt. In Arabic each has a different word. Fstr : Father's half sister on the father's line Gf : Grandfather Gm : Grandmother Gp : Grandparents H : Husband H : Half or Husband HbrF : Half brother of the father's side HbrM : Half brother by the mother's side HstrM : Half sister on the mother's side M : a. " Mas'ala ( problem ) " at the beginning of the problem line, and b. " Mother " at the bottom of the problem line. MFF : Mother of the father's father S : Son SS : Son's son Str : Sister StrS : Sister's son T : Saqit, excluded and deprived W : Wife Note : Some other abbreviations are sufficiently explained as they appear in the text. The reader is kindly advised to seek their meanings as it is a part of the reading and understanding process. P r e f a c e Auzu Billahi Minash Shaitanir Rajim. Bismillahir Rahmanir Rahim. Alhamdu Lillahi Rabbil Alamin. Was Salatu Was Salamu Ala Sayyidil Mursalin. Wa ala Alihi wa Ashabihi Ajma`in. The Law of Inheritance in Islam is an integral part of the Islamic Lawanditis acomponentofthe comprehensive religion. Fiqh, Jurisprudence, is an inseperable component of the complete set of laws and regulations which are drawn from the Holy Qur'an and the Sunnah of the Prophet Muhammad, peace be upon him. Inheritance laws are an integral part of the Islamic Law and, therefore, cannot be excluded or isolated from the whole system of thought set forth by Islam. Islamic jurisprudence is a product of Divine message, which has been conveyed by the numerous messengers through the ages to the humanity, who were selected as stewards and vicegerents of Allah on Earth.Humanity must keep its commitment and its allegiance it has made to Allah in the heaven wwhereby it acknowledged His Lordship before it was physically created. In the feast (Bazm A-last) the humanity accepted the trusteeship of Allah and by that virtue human beings are to follow the Divine message here in this world, so that they may be entitled to have a good life in the hereafter. The application of Inheritance Law is mandatory for every Muslim, who submits his will to Allah. This cannot be seperated from any Islamic practices, since it is a part of the religion. But this application, as all religious practices are, has to be based on human will and intention. As we all know will and intention are a pre-requisite in religious practices and deeds. That is why no one is excused from the application of any rule of Islamic Law including those related to Inheritance. Having no previous precedents,the Companions of the Prophet followed Islam, paved the way to new organizational structures and established needed units of organized religion in the early days ofIslam willingly and intentionally. So the Muslims of today must follow the same way at the same pace and must enforce the Law of Islam knowingly and willingly on themselves and on others. No exemption is possible in this regard. No power should be acknowledged to any one to deprive Muslims from following the words of their Lord and to be privileged in pursuing the Divine message. This right cannot be violated by any force whatsoever. Applying the Divine message and following the rules necessitates the acquisition of knowledge.We need to know what therules are relating to inheritance. Islam in general and Inheritance Law in particular are not a philosophy, it is not a fantasy, it is not an imaginaryor a fictive phenomenon. It needs to be studied seriously, learned and verified properly, and taught completely. No one has the right of speaking from ignorance and ascribing either his ideas and fantasies to Allah, to the word of Allah or to the Sunnah of Prophet Muhammad, pbuh. This leads us to the dire necessity of this Islamic science everywhere. That is why English readers, Muslims of this country, and Muslims all over the world need a new study on the subject. Although law systems of nearly all countries include the inheritance right in the personal laws and allow each individual to enjoy the Islamic Inheritance system which believe that it is the Divine message, there are some countries which do not allow the law to be practiced officially by the inheritors. The author of this work hopes to fill the existing gap in this field and refresh the existing works and heritage of studies in this area of interest. The intention is to compile a comprehensive work on Inheritance in Islam. That is why subjects may be found in detail and even some seemingly irrelevant topics, i.e. shares of slaves in inheritance,have been kept intact. The autherbelievesthat the integrity of the whole set of Islamic rules has to be protected by all means. Relevancy of Islamic Law generally and Inheritance specifically will not happen unless Muslims themselves do something. No blame can be placed on Islamic Law itself, if the adherents fail to follow it. Keeping in mind the independence of the science and the integrity of whole subjects in this field,the author did not feel the need to skip some ofthe topics which are not very practical today. For example the wala problems or the issues related tothe subject of slavery. He felt the necessity of sticking to the historic aspect of such subjects and the duty of faithfully following the rules of the past practices, which in the future may be needed again. The work mainly follows the marvelous text book which affected Islamic sciences and practices many centuries ago. That is,"Sharh al-Sirajiyyah" by Sayyid al-Sharif al-Jurjani, a commentary made on the book of "al-Sirajiyyah fi 'l-Fara'id" by al-Sajawandi. The edition used is a copy which has the "Ahmad Hulusi" seal on it. No date or place is given. But it is obvious that it was reproduced in Istanbul/Turkey. This edition contains a lot of notes by Ahmed Hulusi while he was teaching this science in the Fatih Mosque, as a part of the Ottoman Higher Educational System, in Istabul. That is a mosque encircled by a very important madrasah which offered Islamic Sciences, for many centuries. The mosque was originally built by the Sultan Fatih Mehmed, who conquered Istanbul and ended the Eastern Roman Empire (Byzantine) and established a huge civilization in this land. His tomb is near the mosque. This science was one of the favorite fields of Turkish scholars throughout the History of Islam. A little more about al-Sajawandi. He is Abu Tahir Muhammad b. Muhammad b. Abd al-Rashid al-Sajawandi. He was alive in 596/1200. Sayyid al-Sharif al-Jurjani, mentions the journey made by al-Sajawandi from Farghanah to Bukhara and his encounter with two pages of inheritance rules ascribed to Ala' al-Din al-Samarqandi and how he appreciated the service and how he became involved in commenting in the booklet ( Comp. al-Jurjani, Sharh al-Faraid, p.103 ). His book " al-Sirajiyyah ( al-Faraid al-Sirajiyyah ) " isa very famous work in the field. It was published many times: Calcutta 1260; Rampur, 1285,1295 and 1311; and Lahore, 1304,1307,1312 and 1317. It has many commentaries and the one which is very famous and used extensively by the author of this work is "Sharh al-Sirajiyyah" by Sayyid al-Sharif al- Jurjani ( d. 816/1413 ). al-Sajawandi also has " al-Fatawa 'l-Sirajiyyah " and " al- Tajnis fi 'l-Hisab ". For more information one may refer to the following sources : Brockelmann, Supplementband, I,650. Paret, Encycl. of Islam. Kahhala, Umar Rida, Mu`jamciw al-Mu'allfin, XI, 233. Haji Khalifa, Kashf al-Zunun,I, 1250. Qurashi, al-Jawahir al-Mudi`ah,III,331-332. Sarkis,Yusuf, Mu`jam al-Matbu`at al-Arabiyyah,I,1007. There are " al-Faraid al-Uthmaniyyah " , " al-Faraid al-Saniyyah " and " al-Faraid al-Timurtashiyyah " in this area. I also benefitted a lot from the last two volumes ( juz ), i.e. XXIX and XXX, of " Kitab al-Mabsut " by Shams al-A'immah al-Sarakhsi, using the second edition made by Dar al-Ma`rifah li 'l-Tiba`ah wa 'l-Nashr, Bairut/Lubnan with no date.This huge book allots nearly 190 large pagesdirectly to this science. TheHanbelite wayof Inheritance is dealt with inan enormously detailed form in " al-Mughni " by Ibn Qudamah ( died 630 A.H. ), vol. VII ( Bairut 1983, Dar al-Kitab al-Arabi ), pp. 2-279 ( under the title Kitab al-Faraid ). Of course some other literature was also useful in preparingthis work. In addition, the many years of teaching experience of this humble brother was found very helpful for this task. al-Faraid is a very peculiar science.The verses and sayings of the Prophet,upon which it is based, are clear in meaning. They contain a lot of numbers and fractions and also many types of mathematical processes. The science contributed a lot to the mathematical sciences. The concepts are made very familiar to the public. Many charts have been developed and put out by Muslim scholars. There are some attempts made nowadays to computerize this science. Many interesting points are being heard. But no real institute which is well equipped on this subject is on the horizon. We all,hopefully, have to wait. Yes, there are some universities, some Fiqh Academies, but the works done here and there are just traditional, patchy, and far from satisfying the modern needs of humanity. Yes,we have Muslim states with armies consuming billions of dollars, but we do not have, even one Institute, where a hundred Muslim jurists can work on life long projects in a well arranged environment; which would include such modern facilities as libraries, publishing houses, communication and computer centers etc. It is hoped the reader will bear with the difficulty of rendering all fiqh Arabic terms into English and understand the author's concerns andhis attempts to pave his way indealingwiththe subjects. The author, with sincerety, acknowledges the services done by the pioneersin this field. This science has a lot of problematic issues to be clarified. That is why the problems always were a part of the teaching method and material. This aspect was not neglected here and has been covered as well as possible. No strict transcription method has been chosen, hoping to benefit those brothers and sisters who are not technically educated in the Islamic Studies on European style or in Orientalism. The reader will find a bibliography of sources at the end. I wish I had the facility of having all of the possible sources listed here, which I studied and developed this work. But I understand thatthis will never happen in the near future, if ever. The general books on Fiqh usually have a chapter devoted to the Inheritance Law. Those were not recorded in this bibliography. I may refer to general Fiqh books including al-Faraid, for short resumes of Muslim jurist and faqihs, and their books, the locations of their works, places and dates of publications etc. to F. Sezgin's " Geschichte des arabischen Schriftums," Vol. I (Leiden 1967 ), pp. 391-586 and Carl Brockellman's "Geschichte der arabischen Litteratur," related chapters in both G and S. The chronological set up of the authors in Fiqh, as well as all other Islamic and Arabic Studies, gives the student an opportunity of tracing the literary development in the Fiqh Literature. No book can substitute their services at the moment. And I further refer to articles published in this area in European languages since the beginninig of this century to J.D.Pearson's " Index Islamicus " (Law chapters). The reader is kindly requested to bear with the author for the imperfections tha may be seen in between the lines. Still it should be pointed out that this work is the widest one in English in its area of interest. The author is sincerely indebted and gratefull to the brothers who reviewedthe text and contributed to the development ofthis work with their help. The writer will be very pleased if he receives some comments and criticism from any interested parties. That will help him to interact better and improve the work to benefit the Muslim Ummah. Since he is money-wise poor he cannot offer financial assistance to the Ummah and Islam; rather he is desirous of offering the knowledge acquired from his teachers and guides -that is some thing he likes to keep as trust- it is his highest desire to transfer the trust to the Public in general and to the interested professionals in particular. Perhaps this will be counted as "Sadaqa Jariyah" (continuing charity ) and help him and other concerned ones in reaching Paradise with bearable problems. As is the case in any work, Islamic work is also so costly in terms of effort, time, perspiration, and perhaps even tears. It takes a lot of deep hearted feelings and battle to reach a level of knowledge and be able to transfer it to others verbally as well as in written form. The mission is to serve Islam and the Muslim Ummah mainly in this part of the world. The draft was revised by Br.Bashir Shah from Plano/Texas and also by Mohammed Salah-al-Din from Mesquite/Texas and Dr. Ausaf Husain from Plano/Texas. They are most deserving of the author's heartful gratitude. May Allah reward them. The authorwas privileged to study and learn this science in the traditional way, which was practiced inthe Ottoman madrasahs throughout the centuries, and also in the modern way which was the method modern Law colleges adopted in their teaching. Hence he is doubly happy in his corner, hoping that this humble effort may hopefully revive an interest among some future scholars to hold and carry this flag for the future of the Muslim Ummah. If he can just play a humble role and contribute only a little step in this cause, he will be very happy. Assalamu Alaikum. Yusuf Ziya Kavakci August l992 Islamic Center, Richardson, Texas Mailing Address: P.O.Box 833010 Richardson, Texas, USA I n t r o d u c t i o n This is a very special Islamic science which occupied a significant place among Islamic sciences all through the Islamic Era. According to one tradition, it is half of the Islamic sciences, meaning perhaps that it deals with the assets and wills of the deceased after his death. The saying of the Prophet Muhammad (pbuh) runs as follows: " Learn the science of inheritance (al-Fara'id) and teach it to the people; it is half of the science ( al-'Ilm ). The science is called `Ilm al- Faraid in Islamic Literature, that means literally " Science of Inheritance Shares.The word "al-Fara'id" is the plural form of "al-Faridah" which means "something allotted obligatorily by Allah. The expression shows the divineness of this science which is a very important feature of all the Islamic sciences. We have the word " mirath " also meaning inheritance. It is derived from " waritha " which means mainly " to inherit ". " Warith " is inheritant. The word " irth " also means inheritance. But strangely enough the term (irth) means in Ottoman terminology "inheritance of land and farm etc.". The different variations and derivations made out of this root "wrth" are widely used in varying meanings and contexts. al-Sarakhsi describes this science nicely with the sayings of the Prophet Muhammad,pbuh. ( al-Mabsut, vol. XXIX, p.136 ). This science always held an important place in Islamic academics at all levels of Islamic learning and teaching. During the OttomanPeriod of IslamicHistory it was one of the main curriculum of the madrasahs.This was notany different in the History of Saljuqids,Abbasids,Umawids,Mamlukks,Fatimids ect. 1) Characteristics of al-Fara'id: a. This is a science based mainly on clear verses of the Qur'an which are precisely three in number and located in the same Surah ( Surah al-Nisa',verses 11,12 and 176 ). There are also quite a few sayings of the Prophet Muhammad ( pbuh ) which play the role of source in this field. b. Itisascience which has dealt a lot with mathematicsand contributesquite a few concepts in the Islamic Period.Its close relation with math will be obviously seen during further study of this work in the following chapters. Modern techniques and computer sciences will be able to contribute to this area in their maximum functions, perhaps, better than in any other areas of study. You will see many charts and tables based on ratio and other types of relations among the prospect shares and numbers in the related literature and in the book of al-Sirajiyyah and its commentary by Sayyid al-Sharif al-Jurjani, the edition which was used by the author (for example tables on pages 21, 52, 76, 100, 101, 107, 110, 117, 125, 129 etc. ). By these modern techniques we may easily discover the ratios among shares and their posessors ( for example the possible meaning of the number 8 female inheritors aganist 4 male ones with fixed shares mentioned in the Qur'an ), the possible travel of wealth of the mobile and and immobile assets of a country in different alternatives and circulation of national wealth and the share of inheritance in the GNP of a country, in addition to its contribution to the distribution of the income and economical benefits and accumulation among family members, young and old, and its role in the fair sharing on the national level. c. The science is fairly firm, established by well defined and agreeable concepts among Muslim jurists (al-fuqaha'). Needless to mention that Faraid has close and distantrelations with many Islamic sciences, as all sciences do, especially with Tafsir, Hadith, Fiqh, Usul al- Fiqh, al-Sarf, al-Nahw, al-Ma'ani, al- Bayan, al-Badi`, al-Lughah, al-Qira'ah, Ahkam al-Qur'an, al-Sirah etc. d. This is the science most acknowledged by nearly all of the states which is applied by the concerned parties, contrary to the other areas of Islamic Law; the latter being ether ignored or abrogated openly by a few Muslim states. It may be interesting to note that this field is located systematically at the end of many Fiqh books, whereas the related ayahs of the Qur'an are neither the last verses nor revealed at the end of the revelation period of the prophethood. The related sayings of the Prophet are also generally at the end of the Hadith collections. This means that this science is the last rule to be applied to a Muslim in this world and it serves a bridge and extension of Islam to the Hereafter. 2) The Area of Application of The Faraid: Generally the assets of the deceased ( mayyit ), after being subject to some additions and substractionswhich will be covered in detail in the following chapters, is the main item dealt with in this field. One has to point out that during the Ottoman Period a difference was made between the person's real estate defined as mulk and estates which were owned by the State, and the ususfructus, of it was conferred to the person. The latter is defined as `aqar in the Ottoman Law of the Land. The criterion was the theory that the ownership of land belongs to the state, only the usage of it could be acknowledged by the state to individuals under the conditions governed by Public Ordinances passed by the Caliph or Sultan. So the Inheritance Law of Islam was applied only to the personally owned mobile and immobile assets of the deceased person, not to farms and land which were owned by the State and the usage of which were conceded to the individuals. The transfer of the usage in this last type of land was stipulated strictly by the government to ensure the actual usage of those lands by the holders of the usage rights. So the state was ensuring a part of the Gross National Product of the country, not to let the country suffer the shortage of crops and agricultural products as well as eliminating the potential bad effect of monopoly which may have easily arisen under the strict application of private ownership (as we may seein the capitalistic system ofeconomy). DuringThe Ottoman Period individuals were allowed to own homes and a few acres around their homes to garden and use for their exclusive interests. That was called " mulk " in this specific area of Islamic Law. Ottomans developed a very interesting type of Land Law. Since 1567 A.D. they regulated the use and transfer of state land; in 1858 A.D. they put into force another landmark law of the land; the law of 1913 A.D. also changed the situation further. Lands were divided into private ownership, state owned lands, dedicated to the cause of Allah lands, and no man's land etc. Shaikh al-Islam Ebussud Efendi ( d.1574 ) played a very important role in identifying the categories of land with his religiously bold fatwas ( edictum). The transfer of the state owned land was not covered by the rules of al-Faraid which will be dealt with in detail in this book. The transfer of land was always directed to full utilization of it by ploughing and cultivation. So the persons who were not to be expected to utilize them were not included in the list of the transferees. Generally, girls were not recognized to inherit the right of use. One may refer to that specific area if interest prevails. Perhaps the Ottoman Archives and the Records of Islamic Judicial Bodies (Shar'iyya Sijilleri), both located in Istanbul, may be a very good source of original reserch in this area. The Ottomans managed to maximize the use of land for the interest of the public this way and controled the availablity of basic foods in the market by eliminating agricultural non-productivity at the expense of the public. The Ottomans passed many Laws regulating this field and making necessary amendments from time to time to adjust them to public interest. The right of state to the land ownership may be pursued in detail from Mawardi ( d.1058 )'s "al-Ahkam al-Sultaniyyah". The ownership of land conquered by military operations or surrendered peacefully are debated and discussed by Muslim jurists since the early years of Islamic Law studies. One may refer to the studies made in this area,especially to the works produced by Ottoman authors in the course of Islamic Appilication in vast areas comprising parts of Asia, Europe and Africa. The conflicts and verdicts in regard to land ownership etc. are a very interesting area ofstudy inOttoman Islamic History. The Archives are really very rich and ready to be explored by dedicated researchers." The Majalla-i Ahkam-i Adliyye " which is an Ottoman Civil Code, is a very good Code to study the types of ownership, mobile and immobile properties etc.and the articles which are related to our subject. First "Tartib" ofOttoman " Dusturs " are a good source for the laws and by-laws which were in force during the period of the Ottomans. C h a p t e r The Bacgground and Basics of Inheritance From the point of historical development we can see that before the revelation of the related verses of Qur'an,the inheritance was left to the wills and legacies made by the deceased. Even leaving legacies and wills for the parents and nearest ones were incumbent on a Muslim. Verse 180 of Surah al-Baqarah (II), refers to this period. Even before that, we find the Muslimsof Madinah sharing the inheritance with each other based on a broad and firm fraternity bond made by the Prophet Muhammad, pbuh, between the immigrant ( muhajirs from Mekka ) and host Muslims of Madinah ( as they are called ensar - helpers). It was later on that a verse was revealed which brought the principle of blood relation into the inheritance law. This was 6th verse of Surah al-Ahzab ( XXXIII ). 1) The Procedure : The following procedure is to be applied to the assets of the deceased after the death occured physically.By the way, one must mentionthat the occurence of death may be debatable from a legal point of view which may be different from a medical point of view. We are concerned here with the death which is acceptable to the Muslim lawyers. The death here may be physical death (de facto) and also may be legal death (de jure), as is the case in the missingperson. The evidence for death is very significant : Charles Hamilton, The Hedaya, Delhi 1982, pp. 368-369. The word of death ( Mawt, wafah ) with its varieties is mentioned in many parts ofthe Qur'an and Hadiths. The deceased is ( mayyit ) or ( mutawaffa ). One may check the Qur'an and Hadith Literature (for example Concordance) for further interests. But it is also necessary to note that in Arabic we have a special term for the deceased who left an estate and made others inherit from him, that is " murith ", which means one who leaves an estate for his relatives and others, one who makes others "warith (the inheritant)". To my knowledge, there is no equivalent to this term in English, so we will use the word "deceased", although they may not always leave an estate and have inheritants. The estate of the deceased is called " Tarikah " in Arabic. The word literally comes from the root letters "taraka", which means "to leave, to give up,to abandon". So " Tarikah " denotes all the assets ownedbythe deceased at the time of death.Credits, debts, cash, real estate and all types of liabilities are included. Ibn Rushd mentions the inheritability of the optionto cancel the sale transaction with some clarifications (See, Bidayat al-Mujtahid wa Nihayat al-Muqtasid, Juz' 2, p.159. Dar al-Fikr, Cairo, no date ). Thefirstthing to be done after the death,is to takecare of all assets none may be lost by any means. In worldly legal systems the appointment ofa guard,or care-taker is legalizedunderthe justice ofthe peace. ButinIslamic Lawthis is not detailed necessarily this way or that way. The general wali (guard) and all other relatives are responsible to look after the assets and watch spontaneously, so that things do not go wrong. Ultimately this is under the jurisdiction of qadi--wali ( governor-judge )in principle. The assets are on the whole, taken as a legal entity. Divisible, but not divided yet. This state forms a very peculiar status in terms of personalityinIslamic Law. As a rule nopersonality is ascribed to natural beings, and not even to animals. Personality is a quality of human beings who have the faculty of logic and reason etc. Tarikah is very exceptional in this regard. Bait al-Mal (treasure of a Muslim state) can be cited as a second exception. 2) The Stages to be followed : The next four stages are to be followed after the death occured: a. Firstly the body of the deceased is to be prepared for burial by washingthe body properly according to the rites of Islam. Generally speaking the male has to be washed by male relatives and females are to be washed by female relatives.Washing will be done by clean water using soap. Martyrs of Islamic war are not to be washed.Ifthebody is dismembered, the foundpartsareto be washed. Thenthebody is to be wrapped in a white cloth, preferablythree tiers. The special name of this cloth is "kafan", of which the English word "coffin" stems,but used in a different meaning. Then the body will be prayed for by Muslims in a special prayer ( Salah al-Janazah )asthe last public duty of the Muslim Community.After that the body will be buried in the grave with a humble ceremony. The grave will be simple with no picture, no luxurious structure at all. Disposing of the body by burning or any other way is not permissable in Islam. All of this will be charged against the assets (tarikah).The expenses have to be paid from that entity. But the expenses have to be done in moderation,neither squandering the assets nor acting very closed fisted and stingy. A middle and balanced way is the best method. The Prophet says "Khair al-umur awsatu-ha", which means "the best of the things are always the middle ones". Taking care of the deceased's body is a fard kifayah which comes under the responsiblity of the Muslim Community. That is to be taken care by the Communuty. If some members fulfill the requirements, then the job is done. Otherwise every one is responsible here in this world and in the Hereafter. That is why a Muslim Communityhas to be orgainized under the leadership of an imam, caliph, or amir ( Community Leader ) whose name and title may be whatever the Muslim Community likes. Thisfirststage is in an emergency status, so it must bedoneas soon as possible after the death takes place. b. Secondly, all debts of the deceased are to be paid off completely from what is left of the assets belonging to him. The first stage was urgent and it was considered as the personal right of the deceased and the community's public duty to take care of it. Now comes the rights of others, which are very strongly emphasized in Islamic Law, so much so that Allah is not going to forgive any one in the Hereafter, if his debts to others are not paid off or overlooked by the concerned person. That is called "huquq al- `ibad ( rights of humanbeings )" . al-Sarakhsi gives us the rationale for why debts come first before the execution of a legacy ( al-Mabsut, vol. XXIX,137 ). If the assets cover the debts, all of it will go for that. But if the assets areshortthen the debt is to be paid off asmuchas possible, and the total amount will go to the creditor. If there is more than one creditor and the assets are not enough to entirely coverall ofthem,theneachone of them will get a proportionate amount and each suffer in the same ratio. For example if the debts are four thousand to x and two thousand to y, whereas the assets are valued at just three thousand, x will get two-thirds of the assets, i.e. two thousand and y will receive one third, i.e. one thousand. So each creditor will lose an amount proportionated to his credit. There are some detailed views one may trace from the treatises of Fiqh Literature withregard to the types of credits and whether some of them have preference over others in the process of inheritance. There are a few more classifications whichare displayed in books to prevent the fake acknowledgement of the debts with the intenton of depriving the potential inheritants. The debts are always preferred after burial expenses, but before anything else, as is the case in the execution of court verdictseven when the deceased is alive. c. Thirdly, the will and last wishes of the deceasedareto be carried out at the expense of the deceased. But this may cover at most a third of what is left out of the estate after the expenses of burying are subtracted and the debts are paid off. The willcomesafterthe debts and before the partition of the inheritance. This was the practice of the Prophet Muhammad, pbuh. These debts are stronger duties than the will which is just optional and donational in nature. The debtor can be imprisoned against his debts contrary to his last wishes. The conditions and elements of will and legacies can be traced from related literature. The verbal wishes of the deceased and his desires attached to his death can be considered as his will. He might have said " feed the poor and pay so much for my missed prayers or fasting ", even if the duties are related to zakah or hajj, those are to be considered as the will, which should be executed. Of course, none of these performances will mean assurance of acceptance and deliver the deceased from the accountability on the day of judgement. The logic behind the third of the remnant is that the expenses on the first two items are tied up with emergency. Even a portion of his debts may be considered out of his possession. His assetsareinflatedby the credit which is in reality not owned by the deceased at the time of his death, are to be automatically substracted from the total of the estate. The property on which he has a right of disposition is what is left after the two expenses are paid off. The beneficiary of the will may be taken as one of the heirs,so he shares the remaining part of wealth with the inheritants. The will fills the loophole of voluntary inheritance system. Another word, Islam has fixed the heirs and they have uncancelable rights of inheritance. Some additional beneficiaries may be added by the deceased to the list of inheritants by bequeathing to them in a legal valid way. So this system eliminates the defects of Roman law which leaves everything to the will of the deceased and gives him the right of depriving every one of his relatives from the inheritance. The Roman Law system is dominant in many countries, as we all know. The will in Islamic law is a very vast area and has a lot of conditions and requirments. One may refer to the following book: The Hedaya or Guide, A commentary on the Mussulman laws, by Charles Hamilton, Islamic Book Trust, Delhi 1982, pp. 670-703. Some of the children may need more help and attention from the point of the property, for example they may be retarded or in need of care, so the father may give them some property when he is living, by donating it, but not by the will. Because the will is not valid for the inheritants. The Prophet says "no will effective for the heir". d. Fourthly, the partition of the remnants of the assets is to be done among the inheritants who are fixed by the Book,that is Qur'an, the Sunnah of the Prophet Muhammad, pbuh, and the Consensus of Muslim jurists, as we will see in their respective places. A special ranking is to be followed in the process of division of the assets among the inheritants which will be listed in detail later. Here we seethe positive sources of this field. They are as follows: a. The Scripture, mainly the related ayahs which were cited earlier. b. Sunnah,the sayings,practices and approvals of the Prophet Muhammad,pbuh.It may be cited here as an example the tradition of the Prophet "you feed the grandmothers one sixth". c. Consensus of Ummah ( ijma` al-ummah ).This is an instituteof jurisprudence where Muslim jurists have to fill the loopholes and vacuums of the law by their opinions and reasoning. This item is a very flexiblesource which depends on the scholarly efforts ( jahd andijtihad ) ofthe muslim scholar and alim/faqih. The applicability of Islam to social events and its adaptability to the problems are basically done by this method of ijtihad. That is a source which was authorized by the Prophet in his famous sayingaddressed to Muadh, one of his Companions, who was appointed as governor/judge to Yaman.It is the main partofhis assignment address made by the Prophet in his public test and address. The grandfathers are included in the rules applied to fathers and the son's son treated as son and the daughter of the son isalsotaken as daughter by the method of Ijma`. For more information one may refer to the related sources of Usul al-Fiqh or to the book of the author of these lines: Fiqh, Islamic Law and Usul al-Fiqh. 3) The Principles and Evidences of Inheritance : The Principles of Inheritance are fifteen: Seven of them are to be found in The Qur'an, five of them are in the Sunnah of the Prophet Muhammad and three of them are based on Ijma` ( Consensus ). A ) The Qur'an : First will be given the verses of the Qur'an which are related to the inheritance on which nearly all of the rules are based. " From what is left by parents and those nearest relatives there is ashare for men and a share for women. Whether the propertybe small or large -a determinate share " ( al-Nisa' -IV- verse 7 ). " Allah thus directs you as regards your children's inheritance: To the male a portion equal to that of two females. If only daughters,two or more, their share is two-thirds of the inheritance; if only one, her share is half. For parents, a sixth share of the inheritance to each, if the deceased left children. If no children, and the parents are the only heirs, the mother has a third. If the deceased left brothers or sisters, the mother has a sixth. The distribution in all cases is after the payment of legacies and debts. Youdo not know whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah. And Allah is All-knowing and All-wise. In what your wives leave,your share is half, if they leave no child. But if they leave a child,yet get a fourth, after payment of legacies and debts. In what you leave, their share is a fourth, if you leave no child. But if you leave a child,they get an eighth, after payment of legacies and debts. If the man and woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister,each one of the two gets a sixth. But if more than two, they share in a third, after payment of legacies and debts. So that no loss is caused to any one. Thus is it ordained by Allah. And Allah is All-knowing and Most-forbearing. Those arethe limits set by Allah : Those who obey AllahandHis Prophet will be admitted to gardens with rivers flowing beneath, to abide therein forever and that will be the Supreme Achievement. But those who disobey Allah and His Prophet and transgress His limits will be admitted to a fire, to abide therein and they shall have a humiliating punishment " ( Surah al-Nisa' -IV- verse 11-14 ). " They ask you for a legal decision. Say : Allah directs thus about those who leave no descendants or ascendants as heirs. If it is a man that dies, leaving a sister, but no child, she shall have half the inheritance: If such a deceased was a woman, who left no child, her brother takes her inheritance, If there are two sisters, they shall have two-thirds of the inheritance between them. If there are brothers and sisters, they share the male having twice the share of the female. Thus does Allah make clear to you His law, lest you err. And Allah has knowledge of all things " ( Surah al-Nisa' -IV- verse 176 ). Also comp. A. Yusuf Ali, The Holy Qur'an. Related verses. One may refer to the main commentaries of the Qur'an for very detailed notes and ideas on the points mentioned in these verses, especially the following commentaries : al-Tabari, Abu Ja`far Muhammad, Jami` al-Bayan fi Tafsir al-Qur'an. al- Zamahshari Kharizmi Abu 'l-Qasim Jar Allah Mahmud, al-Kasshshaf `an Haqa'iq al-Tanzil wa `Uyun al-Aqawil fi Wujuh al-Ta'wil. al-Qurtubi, Abu `Abd Allah Muhammad, al-Jami` li-Ahkam al-Qur'an. al-Alusi, Mahmud, Ruh al-Ma`ani fi Tafsir al-Qur'an al-`Azim wa 'l-Sab` al-Mathani. Especially for very detailed rules and comments on those three ayahs and more the reader is strongly advised to refer to al-Qurtubi's al-Jami, vol.V, Dar al-Kutub al-Misriyyah, Cairo 1988, pp. 37-54 and vol.VI,pp.20-21. Also Ibn Kathir, Abu 'l-Fida Isma`il, al-Tafsir. al-Fakhr al-Razi, al-Tafsir al-Kabir. al-Baidawi, Abd Allah b. Umar, Anwar al-Tanzil wa Asrar al-Ta'wil. 4) Now let us see, in brief, the seven rules drawn from these verses : l. The children ( male/female ) of the deceased, 2. Parents of the deceased when they are together with deceased's offspring, 3. Parents with no descendants of the deceased, 4. Husband, 5. Wife/wives, 6. Brothers on the side of mother, 7. Full brothers or brothers on the father's side. These are a group of seven who are mentioned in Qur'an, as cited earlier. B) The five rules which stem from Sunnah of the Prophet are as follows: 1. The wala' ( right of inheriting the emancipated slave ) belongs to the emancipater master. 2. Sisters become asabah inheritors ( they get what is leftover after the other heirs take their fixed shares ). 3. The principle laid down by the following maxim (hadith ): " You give fixed shares to the ones who are entitled, what they leave will go the the nearest male relative ". 4. The maxim of " give the grandmothers a sixth ". 5. The saying of the Prophet in regard to granddaughter and sister. " Give the daughter half, the granddaughter one sixth and what is left will go to the sister". Hadith Literatureis full of detailed information about the subject. One may refer to all Six Authentic Collections of Hadith, especially Bukhari, Sahih. Muslim, Sahih ( There is a chapter under the title of al-Fara'id in it ). Sunans of Abu Dawud, Tirmizi, Nasa'i and Ibn Majah. Also: Malik's Muwatta' and Ahmad b. Hanbal's Musnad. One may further look the proper terms up from " Concordance de La Traditions Musulmane " edited by Wensinck, Leiden/ Holland. For very detailed comments and criticisms of related sayings of the Prophet Muhammad,pbuh, please refer to al-Shawkani's " Nail al-Awtar min Ahadith Sayyid al-Akhyar, Sharh Muntaqa 'l-Akhbar, Vol. VI, Bairut, Dar al-Jil, pp.168-198. Also to al-Sarakhsi, al-Mabsut, XXX, pp. 38. C) The principles based on the Consensus ( Ijma` ) are as follow: 1. The Consensus treated the grandson as son, granddaughter as daughter, provided the latters are non-existent. 2. The grandfather is treated as father in his absence. 3. The sister on the father's side is taken as sister of both sides ( fatherand mother ). There are some more principles based on Qiyas ( Analogy ), and the reader will encounter the details in the course of the subject. One may cite Qiyas for a source of the completion of the share of a sister on the father's side from a sixth to two-thirds. Here an analogy is made between them and granddaughter and the daughter. 5) The causes ( sababs ) of inheritance are three : a) Blood relation and being a relative.All relationsbased on motherhood and fatherhood are based on this factor. This relation hasto be real and Islamically acceptable. Any relation stemming from Islamically unacceptable acts, for example adultery, common lawmarriages,adoption ( forthere is no legal consequencesfor adoption in Islam ) cannot form the basis for the inheritance right. About how to prove the relation and its effect on inheritance see : al-Sarakhsi, al-Mabsut, XXX, pp. 69-91. The relation between the product of adultery ( for example the child of such relation, walad al-zina and also a procedurally rejected child , walad al-mula`anah ) cannot be accepted as represents of the Islamic inheritance. For more information see : al-Mabsut, XXIX, pp.198-200. The blood relation is divided into three by al-Jurjani : a. The near relation that may be either ascendantal ( usuliyyah ), like parenthood and or descendantal ( far`iyyah ), that like offspring. b. Middle relations, this the relation of the relatives who are offshoots and are not on the direct line with the deceased, like brothers and sisters. and c. this is the relation of relatives who are marriageables, like the offspring of the uncles on both the father and mother's sides. ( Sharh al-Sirajiyyah, pp. 44-45 ). b) Marriage. The relation between spouses depends on this factor. The marriage here must be acceptable according to the family code of Islam. The marriages which are based on just living together, in other words the free relationship between man and woman and boy-friend and girl-friend, the children produced in this way are not considered as a real relation in Islam, hence these type of people cannot be privileged to benefit from inheritance rights in Islam. They are out of the question. The marriages done in churches possibly with no witnesses, alsothe marital agreements done by the justice of the peace and furthermore the ones which are executed for the purpose of solving the residency problems in a non-Muslim country are really to be evaluated by Muslim jurists. Any relation coming out from this type of marriage and its dependability for inheritance is really a very serious problem, Muslims in this part of the world face today. One may refer to the literature related to Family Law in Islam for further information. For the effects of divorce procedure on the inheritance see : al-Saraksi, al-Mabsut, XXX, 60-61. The marriages which took place among non-Muslims in pursuance of Islamic law are valid. But clearly forbidden types of wedlocks arenottobe considered for the inheritance law. Marriagesamong Islamically unmarriageable relatives or non-marriageable divorcers and divorcees ( for exmaple divorce based on talaq bain with three divorces ) are not valid and the relation stemming from those types of marriages are not valid in Islamic inheritance law. But marriages without witnesses or marriages done in waiting periods of women are not unanimously invalid. c) Wala': a relation between the ex-slave and ex-master who emancipated him and granted his freedom. For different types of wala' relations see al-Sarakhsi, al-Mabsut, XXX, pp. 38-46. All of these will be detailed in their respective places. 6) The Beneficiaries of an Estate : The following rankings are to be pursued in the process of distribution of the assets left by the deceased.This is a listof priorities. The next group will get nothing if any one from the previous group exists. 1.Theones whose shares are fixed in Qur'an, Sunnah or Ijma`. This group is called " Ashab al-fara'id ". 2. Asabah of blood relation. These are agnates who will get what is left after the first group receives their fixed shares. 3. Asabah relation ( male/female ) stems from the wala' factor. A manumitter of a slave inherits his/her ex-slave. The agnates of the male manumitter master are also included in this process in case they are absent. 4. Increase of the shares of the first group ( ashab al-fara'id ). This is called technique of radd ( returning back and giving more ). The increase will be proportionate to their shares. 5. Cognate relatives. This group is called Zawi 'l-Arham. These are the relatives of the deceased having nofixed shares, and are neither asabah nor any kind of sharer. 6. Mawla 'l-muwalah: This is a person whose blood relatives are not known and he enters in a contract saying to someone " you be my mawla,ifI die, you inherit me and if I kill a person youpay blood money on behalf of me " and the other party accepts the offer. If the accepting party meets the same requirements and acts in the same way, both of them become mawla of each other. There are a few debates among the Muslim schools of thoughts on the acceptablityof this item.About this category seeal-Mabsut, XXX, pp. 43-46. 7.A person whose blood relation ( nasab ) to a third person is acknowledged by an acknowledgement bound with the condition that the acknowledger has to die keeping his statement valid. The effect of acknowledging here and its variants can be further studied in al-Mabsut, XXX, pp. 69-91. 8. The beneficiary of a will for whom the whole assets were bequeathed by the deceased. 9. Thetreasure of the Muslim state.This is called Baital-mal. That is the treasure which comprises the entire budget of a Muslim state. These nine items are to be followed in distributing the estate. First ones first, then the next items will function as beneficiaries. If anyone from previous group exists, no one from the following groups may inherit anything. For more information about each one of them one may refer to Fiqh literature or to the Translation of Multaqa 'l-Abhur by Ibrahim al-Halabi. A book which was written during the famous Ottoman Sultan Suleyman, The Magnificent ( XVIth Century A.D. ) and since then occupied the students of universities more than four centuries. 7) The Impediments of Inheritance: There are some obstacles and impediments which prevent an inheritor to benefit actually from the assets by the deceased. In this case the blood relation is there or the factor entitling the person to inherit is there, but because of the existing condition he is barred to actually use his power and competence. There are four cases. Each one of them functions independently and bars the beneficiary from materializing his right of inheritance. a. Slavery. A slave cannot inherit from his relatives. This is no exception for any kind of slavery status. There are, as we know, full slaveries, like qinn in arabic and imperfect slaveries, like mukatab and mudabbar. All of the posessions and acquisitions of a slave go to his master. That might lead to allowing a nonrelative acquire from persons who are just third persons. This is against the principle of inheritance rules. However, there is a minority opinion which states that a slave who is partly emancipated may function as an heir and he also may suffer the deprivation ( totally or partly ) by another heir. b. Murder. A murderwhich necessitates theapplicationof the retaliation rule or expiation ( kaffarah ) is an impediment which disqualifies a murderer from getting any share of the assets of the victim. The types of slayings here are the ones which are done intentionally or quasi-intentionally. Slayings made by mistake or by being caused are not unanimously excluded from the inheritance. See al-Mabsut, XXX, pp. 46-50. c. Differences of religion.A non-Muslim will notinheritfrom a Muslim. This isan unanimously accepted rule. A Muslimmay not inherit from a non-believer according to Ali b. Abi Talib, Zaid b. Thabit, majority of the Companions of the Prophet Muhammad, Imam al- Shafi`i and Hanafite scholars. A hadith is mentioned in this regard: " People of two different religions will not inherit from eachother".Notwitstanding,analogical method justifies the inheritance of a Muslim to non-Muslim, based on the hadith of " Islam is high,nothing can be higer than it". That is why very few jurist are of the opinion that a Muslim may inherit from a non-Muslim relative. Buta few points are raised and answered by other faqihs who hold an opposite view. Thispoint,it seems, has a very significant impact on Muslim converts who have a chance of inheriting from their non-Muslim parents. A non-Muslim may inherit from one another according to the general understanding, though very few scholars do differentiate Jews and Christians from others. See al-Mabsut, XXX, pp. 30-33. The reason a non-Muslim can not inherit from aMuslim and vice versa, according to the majority of the views of ulama', is lack of walayah between the deceased and his heirs. Because the main legal ground of the inheritance is successorship of the heir to thedeceased in ownership, andin the transactions and dispositions of the estate. al-Sarakhsi gives a strongly convincing explanation on this point ( See op. cit.). The Scriptural evidence is the following verse of the Holy Qur'an : " The disbelievers: Some of them are friends ( awliya ) of some others from them " ( al-Anfal, -VIII- verse 73 ). The root of the word " awliya " is " waliya ", the infinitive is walayah. Its terminological meaning is " to have dominion, right of protection, friendship " in which inheritance is included. d. Difference of the country ( muslim and non-muslim countries ). There are two countries: The Muslim country, called " dar al-Islam " and non-Muslim country called " dar al-kufr ". Dar alkufr may turn into a country of war ( dar al-harb ). This rule of not inheriting from each other is so strongly applied that even if acitizen ofa non-Muslim country is a visitor in the Muslim country and his relatives who are living in the Muslim country die, the inheritance does not function. They are in reality considered as being in different countries. Even if two relatives from the dar al-harb meet in a Muslim country and either of them dies, they do not inherit from each other. Zimmi and harbi cannot inheritfrom each other. The criterion of difference in country ( dar ) is having a different army and national guard under different commands. So that they protect the border and do not allow any passage or trespass without a visa. One may refer for more information to the respective sources of literature including al-Mabsut, XXX, pp. 30-33. We have many problems to be solved clearly : For example are all the muslim states all dar al-Islam and are the non-muslim countries all dar al-kufr. And can the immigrant muslims to a non-muslim country inherit from the relatives in their country of birth? Are there any differences in this point about the mobile and immobile properties the deceased has in the country of birth and in the country of naturalized citizenship? We may derive hundreds of problems on this point. A satisfactory analysis of those problems with the suggestions for possible solutions is not apparent yet on the Horizon of the Muslim world. C h a p t e r Heirs with Fixed Shares The shares ( Fard, faridah and sahm ) cited in the Holy Qur'an are six in number ( ranking as follows ) : 1) Group A : The smallest even numbers ( ranking from big to small ) : 1. Half: This is mentioned in three places: a. For one daughter, b. For the surviving husband, and c. For one sister. 2. One fourth ( half of an half ) : It is cited on two occasions: a. Forthehusband sharing the inheritancewithhis wife's child/children, b. Forthesurvivingwife sharing the inheritance with no child/children from her husband. 3. One eighth ( Half of the half of the half ) : That is mentioned only on one occasion: a. For the surviving wife jointly inheriting with her husband together with his child/children. 2) Group B : The smallest odd numbers ( Ranking from big to small ) : 4. Two-thirds: This is cited in two places in the Holy Qur'an: a. About daughters, two and more than two in number, b. About sisters, numbering two or more. 5. One third ( half of the two-thirds ): This fraction too is cited two times in the Holy Scripture: a. About mother with additional conditions, b. Abouthalf-sisters by mother's line, provided they are more than one. 6. One sixth ( Half of the half of the two-thirds ): This share is mentioned in three different context in the Holy Qur'an: a. For each one of the parents, b. For brothers, c. For one half sister on mother's side. All previous shares are assigned and allotted to their respective owners under some further requirements which will be discussed in the following pages. One may easily notice that the fractions given above have a characteristic of divisibility andfoldability in doubles at all stages. The shares spoken about here are all non-erasable, in other words there is no way in denying them to their owners. They are " protected shares ", protected from anything to deny. The legacies and wills do not work; in that regard, it cannot diminish them. 3) The Number of share-holders : The total number of the holders of these shares are twelve, of whom four are males ( Father, real grandfather i.e. father's father,no change how far he may ascend on the family line, half brother on mother's line and husband ) and eight are females, namely wife, daughter, daughter of son, no matter how much lower it goes down the family line, full sister ( both sides of father and mother),halfsister by father's side, half sister on the mother's side, mother and real grandmother ( the one who is connected to the deceased by no false grandfather ). The ranking has a logic and is done on purpose. They have a developed interrelation among each other in terms of affecting the shares, sometimes increasing, sometimes diminishing and sometimes depriving entirely from any share. They all may be pursued in their proper places. For a general view on the topic please refer to al-Mabsut by al-Sarakhsi, vol. XXIX, pp. 174-192. 4) Shares in Detail: Now we willproceed to explain the shares of eachoneofthese inheritors indetail.These inheritors are named as " Ashab alfaraid ". Their shares are to be displayed in detail with further explanation. The total number of various cases is forty. That is why they are known as " Forty Cases ( Kirk Hal ) " in Turkish student terminology of Fiqh. A) Male Group: I. Father ( al-Ab ) : Deceased's father has three variants in terms of fixed shares: a. one sixth. Just one sixth of the estate, no more, will go to him as his share out of the wealth left by his deceased son. This is when the deceased has a son or in his absence son's son, or in case of the latter's absence son of the son's son, the ranking goes in the descent line of the family tree as low as possible. b. One sixth together with any additional amount leftover after all otherfixed shareholders receive their shares. This rule will function when the deceased leaves a daughter or the daughter of his son, incase of the absence of her immediate daughter. The substituting daughter may go down the family line as far as posible, provided the previous ones do not exist. c. Father will wipe out all that is leftover afterthe others receive their shares. This is called " getting just what is left ( al-ta`sib al-mahd ) ". However, in this case no above mentioned states with their conditions must be met. The evidence from the Holy Qur'an in this regard runs like this: "Each one of the father and mother ( parents ) of the deceased will have one sixth of what he/she left of the estate, if he/she has a child/children. If he/she has no child/children and the parents inherit from him/her, the mother will have one third (Qur'an, Surah al-Nisa' -IV- verse 11 ). The jurisprudential study of this verse gives all the three cases with their conditions mentioned above. We have a hadith with regard to his share of what is leftover after the daughter takes her share,just opposite of the case when the child is male. The text of hadith is like this: "Give the fixed shares to the concerned inheritors and what they leave back will go to the nearest male inheritor". Hereare some mas`alahs ( problems ) to elaborate a little more on the subject. This is a practical way of explaining the subject and even applying the abstract theories to the problems and finding the solutions. In this way a student of Islamic Jurisprudence learns to develop a good opinion (al- Ra`y) in which Hanafite jurists are very much involved and even accused by their counterparts in other Juristical Schools of Thoughts. But one has to acknowledge that it is this method which makes Islam fully applicableinanycentury and it is one ofthefeaturesof Islamic law which makes it alive and valuable for all times. For more information one may study al-Mabsut by al-Sarakhsi, vol. XXIX, pp. 174. 5) Symbols : From now on the following symbols will denote what is written against them: M signifies mas`alah ( problem ). The line will mean Arabic " sin " of the word " masalah ". B will represent " baqi " meaning " the remainder ". The number at the far right end ( bottom ) will represent the denominator, a whole number on which the estate is to be divided and from which each heir will receive a whole number as his/her share ( numerator ). The numbers at the top of the line against each inheritant show the numerator ( the share of each individual ultimately taken as a fraction of the denominator). In each masalah a male or female is assumed to be dead. The reader has to figure out who is dead in each problem. 1 5 Sixth Baqi 1) M ---------------------------------------- Father Son 6 1 5 Sixth Baqi 2) M ---------------------------------------- Father Grandson Grandson 6 2 5 10 5 2 ---- 12 Herethe estate of the deceased has been divided into 6 first. 1 is givento the father of the deceased,the remainder5 isgiven jointly to the two grandsons. But 5 is not evenly divisible by two. That is why we multiplied the denominator ( makhraj ) number 6by2 ( the number of heirs on whom the share isnot divided ), then we multiplied all shares taken out of the denominator by the same multiplier 2. Thus the father untimately received 2 out of 12, and each one of the grandsons received 5 out of the denominator, 10 in total. So the value of the fractions did not change. Sixth 1 Sixth 1 Baqi 4 3) M ------------------------------------------- Father Mother Grandgrandson 6 Half 3 Sixth & Baqi 1+2 4) M --------------------------------------- Daughter Father 6 Sixth 1 Half 3 Sixth & Baqi 1+1 5) M -------------------------------------------------------- Mother's mother Son's daughter Father 3 6 Half 3 Sixth & Baqi 1+2 6) M -------------------------------------------------------- Daughter of son' son Father 3 6 Half 1 Baqi 1 7) M ----------------------------------------------- Husband Father 2 Fourth 1 Baqi 3 8) M ----------------------------------------------- Wife Father 4 II. Real Grandfather ( al-Jadd al-Sahih ) : A real andtruegrandfatheristhe grandfather whodoes not get connected to the deceased through a mother,in other words there is no female between him and the deceased. A true grandfather islike a father in terms of rules of shares, when the father is absent, except in four issues explained below in detail: a) Fathers's mother does not inherit together with father of the deceased, contrary to the case when she is with real grandfather. b) If the deceased leaves parents and one of the spouses, mother will receive one third of what is left after the spouse's share is substracted. But if the real grandfather substitutes the father, the mother in this case will be allotted one third of the whole estate. Abu Yusuf dissents here, according to him, she will get one third of the remainder, as is the case with the father. c) The full brothers and sisters ( Banu 'l-a`yan ) and half brothers and sisters on the father's side only (Banu 'l-allat) are to be excluded from inheritance, as unanimously agreed upon, but none of them are excluded when they are in company with a real grandfather. However, Abu Hanifah holds a minority opinion in this regard. d) According to the view of Abu Yusuf, the father of a manumitter(an ex-master) who inherits from the freedman withhis son receives one sixth of wala' right ( the right of inheriting from him despite lack of blood or any other relation beyond being an ex-slave), whereas the real grandfather does not benefit from any type of wala'. The right of wala' in this last hypothesis will go wholly to the son of the emancipated person. The other scholars see no difference in these two alternatives. To them, both the father and grandfather will receive nothing from wala'. The real grandfather will be totally out of picture,if the father exists.The father is the link between him and the deceased.So he excludesthe grandfather,contrary to a mother whodoes not expel half brothers and sisters on the mother's side. Some authors suggest that this point may be counted as a fifth item of difference between the father and real grandfather. The grandfather together with the father is very well dealt with in al-Mabsut by al-Sarakhsi (vol. XXIX, pp. 149 and others and also pp.174- 198 ). Practical Problems : Sixth 1 Baqi 5 1) M --------------------------------------------- Grandfather 2 Son 5 10 Son 5 6 2 ---- 12 Sixth 1 Sixth 1 Baqi 4 2) M ------------------------------------------------ 6 Father's Mother Grandfather Son of the son's son Half 3 Sixth & Baqi 1+2 3) M ------------------------------------------ Daughter Grandfather 3 6 Half 3 Sixth & Baqi 1+2 4) M ------------------------------------------- Son's daughter Grandfather 3 6 Sixth 1 Half 3 Sixth & Baqi 1+1 5) M --------------------------------------------------------- Mother Daughter of the son's son Gfather 2 6 Half 1 Baqi 1 6) M ---------------------------------------- Husband Gfather 6 Fourth 1 Baqi 3 7) M ----------------------------------------- Wife Gfather 6 Third 1 Baqi 2 Excluded 8) M -------------------------------------------- Mother Father Gfather 3 Problems which are not common with fathers: Excluded Whole Assets a) M -------------------------------------- Father's mother Father Sixth 1 Baqi 5 b) M -------------------------------------- Father's mother Grandfather 6 Third of remainder 1 Fourth 1 Baqi 2 c) M ------------------------------------------------- Mother Wife Father 4 Third of whole 2 Half 3 Baqi 1 c) M ------------------------------------------------ Mother Husband Gfather 6 The grandfather gets the rest according to Abu Yusuf and Muhammad b. al-Hasan al-Shaibani. Third of remainder 1 Fourth 1 Baqi 2 d) M ----------------------------------------------------- Mother Wife Gfather 4 The problem is based on Abu Yusuf's point of view. Excluded Excluded Whole Assets e) M ---------------------------------------------------- Full brother Full sister Father III. Children of the Mother ( Awlad al-Umm ) : This group has three various shares. Males and females are equal. a. One sixth for one half brother or sister by the mother's side. In the Holy Qur'an we have a next rule: "if the deceased is a man who is kalalah, i.e. has no father or child, or the deceased is woman in the same condition, each one of his/her brother or sister will receive one sixth of the inheritance." ( Surah al-Nisa' -IV-, verse 12 ).The recitation of al-Nakha`i of this ayah is like this : " her brother or sister from the mother's side ". That clearly shows that half brothers and sisters on the mother's side are the subject of this verse. b.If there are two or more, their share is just one third. Male and female are equal. The previous verse runs as follows : " If they are more than that, i.e. one brother or sister, they will share one third". The logic supports this rule. Since one will get one sixth, more than one logically will receive double, that is one third. c. They will never get anything if there is ca) a child or son's child, the rule is applicable as to how low the line goes, cb) or father or grandfather, as unanimously admitted by the Muslim jurists. As we see in the following verse the lack of a child and a father are stipulated in this procedure: "They ask you. Tell them, Allah is answeringyou about kalalah. If someone dies while having a child and he/she has one sister she will receive one half.If the deceased is a woman with no child, her brother will inherit from her. If they are two sisters they will receive two-thirds of what the deceased left.If they are brothers and sisters they will inherit, the male having twice the share of female. Allah makes clear to you this way, lest you err. Allah has knowledge of all things ". ( Surah al-Nisa' -IV-, verse 176 ). As we see, thelack of the ascendants and descendants, are required here in this case. Furthermore the Prophet said : " Kalalah is a person who has no child or father". The child of the son is included in the rule in case the immediate child does not exist,and a real grandfather also substitutes the father in his absence. Allah says in the Holy Qur'an : "O children of Adam!", So the child means all the children down the line. The inclusion of the real grandfather can be substantiated by the verse of "As Allah took out your father and mother from paradise". So Adam and Eve are expressed as father and mother whereas they are not so in reality. So Awlad al-Umm receive nothing in their presence. The word " kalalah " literally means "making tired and weary and weak". The meaning has been borrowed to denote the relation between the relatives other than descendents and ascendants. The word also means one who is related tothe deceased, excluding children and ascendants. Some Problems and Exercises: Sixth 1 Baqi 5 1. M ------------------------------------------ Half brother M. Full brother 6 Sixth 1 Baqi 5 2. M ------------------------------------------- Half sister M. Full Uncle F. 6 Third 1 Baqi 2 3. M -------------------------------------------- HbrM 1 2 HstrM 1 HbrF 4 3 2 ---- 6 Half 1 T Baqi 1 4. M -------------------------------------------------- Daughter HbrM Full Uncle F 2 The problem will not change if we have a son's daughter in the absence of an immediate daughter or if we have a half sister on the mother's side along with full brother. Whole estate T T 5. M ------------------------------------------- Son HbrM H uncle F If we subsitute a half uncle on the father's side by a half sister on the mother's side in this last problem the structure will not change. The son will be entitled to receive all assets of the deceased after the necessary procedure takes place. Whole assets T T 6. M -------------------------------------------- Real grandfather HbrM HstrM IV. Husband ( al-Zawj ): This is the last male inheritor from this group. He has two various status: a. Half: He will receive half in the absence of any immediate descendants or son's children of the deceased, no matter how low it goes down. b. Fourth: He will receive one fourth, in casethereis any previously mentioned descendant with the same conditions. The following verse is clear enough in this regard: " In what your wives leave your share is half, if they leave no child.But if they leave a child, you get a fourth after payment of legacies and debts " ( Surah al-Nisa' -IV- verse 12. Some clarifying problems on the shares of husbands: Half 1 B 1. M -------------------------------- Husband HuncleF 2 The problem is the same if we substitute the Huncle with a full uncle. Fourth 1 B 3 2. M ----------------------------------- Husband Son 4 No change in substituting the son with the son's son in the absence of the former. Fourth 1 Half 2 B 1 3. M ------------------------------------------ Husband Daughter HuncleF 4 No change will take place if we substitute a daughter by the son's daughter and HuncleF by HbrF. Fourth 1 Half 2 B 1 4. M --------------------------------------------- Husband D of son' son Full br. 4 Someschematic will be applied if we substitute the previous granddaughter by the daughter of the grandson who is linked with the deceased by a male line only and also substituting a full brother by a half uncle on father's side. B) Female Group : This group comprises eight female inheritants.They all will be dealt with in detail. I. Wife ( al-Zawjah ) : Wife/wives have two possible shares : a. Fourth: If there is no descendant, including substituting ones, for the deceased. b. Eighth in case there are any offspring in the line. So the principle of male receives double share of a female is observed here in the case of spouses as well. Thefollowing verse is very clear in this regard : " Their ( wives ) share is a fourth if you leave no child; but if you leave a child, they get an eighth after payment of legacies and debts " ( Surah al-Nisa' -IV- verse 12 ). A few problems with their solutions : Fourth 1 Baqi 3 1. M ------------------------------------ Wife Fullbr 4 Fourth 1 B 3 2. M ------------------------------------- Wife HuncleF 4 Eight 1 B 7 3. M --------------------------------------- Wife Son 8 The same solution for subsituting a son with the son's son. Eight 1 Half 4 B 3 4. M ----------------------------------------- Wife Daughter HbrF 8 Eight 1 Half 4 B 3 5. M ------------------------------------------ Wife D's son HuncleF 8 If we subtitute the granddaughter by the daughter of the son of the son's son and the half uncle on the father's side by the full uncle (father`s full brother) the structure will remain the same as it is. II. Daughter/s ( Banat al-sulb ) : This group of inheritants is also called " sulbiyyah " and have three variants of shares: a. Half: Half of the estate will go to one daughter. b. Two-thirds: Two-thirds are the share of the two and more daughters. c. The rest:She will be allotted the rest, sharing with the son of the deceased,as residuary, of coursewiththe condition of applying the rule of a male will receive twice the share of the female. The source for these shares is as follows : " Allah directs you as regards your children's share of inheritance : to the male a portion equal to that of two female. If only daughters two or more, their share is two-thirds of the inheritance; if only one her share is a half " ( Surah al- Nisa' -IV- verse 11 ). Theshare of one daughter is clear enough in the last part of the quotation. The shares of more than two also are quite vlear. But the shares of two daughters may need a little clarification, because of the phrase used in this regard. The Arabic expression of this is as ( fawqa ithnatain ) meaning literally "upon two, beyond two and more than two". This leads to the problem of the evaluation of the " two " according to grammar and according to Usul al-Fiqh techniques. Cutting the subject short, "two " means here " plural ".Ibn Abbas, the companion of the Prophet Muhammad,pbuh,is oftheview that two daughters have to get one half share, equal to one daughter's share. But the majority of the companions admit the two daughters as plural, being governed by the same rule related to them. The logic behind this fact goes further as follows : Since the least level of composition here is one son and one daughter, and the share of the son is two-thirds and the one daughter's share is one third, hence the two daughters will get just double, that is two-thirds. Two sisters get two-thirds, then two-daughters are better and more preferable in regard to the shares. The rule of receiving the rest and getting half of what the son getsis also very clear in the text of the versereferred to.al-Sarakhsi,details in a very profound way all classical informantion about the children in general ( al-Mabsut, vol. XXIX, pp.138-149 ). Some related problems : Half 1 B 1 1. M --------------------------------- Daughter HuncleF 2 Two-thirds 2 B 1 2. M ------------------------------------ Two D FulluncleF 3 1 2 3. M ------------------------------------- Daughter Son 3 2 2 4. M -------------------------------------- Two D Son 4 2 4 5. M ------------------------------------- Two D Two sons 6 III. Son's Daughter/s ( Banat al-ibn ) : They are also called " ibniyyah " . As a general principle the same rules related to the sulbiyyahs are applicable to ibniyyahs with the requirement of absence of the former. We have to bear in mind that always the male chain is needed, that is a daughter of a son, or daughter of a son's son, or daughter of a son of a son's son, no matter how far it proceeds downward, not including at all daugter's daughter, or daughter of son's daughter. Ibniyyahs have six variant positions: a. Half: If Ibniyyah is one and there is no sulbiyyah inheritor. b. Two-thirds: If ibniyyahs are two or more with the absence of the subiyyahs. c. Sixth : Ibniyyahs will receive one sixth if they are together with one sulbiyyah, so that their share will complete the twothirds ( takmilatan li-ththuluthain ). The logic here is like this: Daughters right of share is the most two-thirds. If there is one sulbiyyah, she gets one half; and the rest of the twothirds. that one sixth, will go to ibniyyahs whoare also descendants of the deceased. No matter whether ibniyyahs are one or more in regard to the application of this rule. The ibniyyahs are nearest kins to the deceased after the sulbiyyahs. d. Ibniyyahs will inherit nothing if the two sulbiyyahs exist as inheritors. This is the view of the public of the Companions, since there is nothing left from the shares of the daughters, two-thirdshas already been consumed.But Ibn Abbas opines that two sulbiyyahs are to be considered as one sulbiyyah, so there is still room to get one sixth rounding the total of shares up to two-thirds which is the maximum share of daughters. e. This exclusion has an exception. If there is a boyparallel (hiza) or lower ( asfal ) to/than ibniyyahs, that is they are in the same line on the family tree or he is lower and in a farther distance than they are to the deceased, in this case, the boy avails them making them residuaries who will share the remaining part of the estate, but under the rule of the male will get twice of the share of a female. The boy may be the brother of the cousin onthe father's side. This cousin makes them asabahs ( residuaries, agnates ) as the brother makes his sisters. This is with regard to the right of inheritance to the whole of the estate. The cousin will function the same way to complete the two-thirds when ibniyyahs are with two sulbiyyahs. This is the idea of the majority of the Companions of the Prophet Muhammad, pbuh. Ibn Mas'ud says that he will not cause them to become agnates and the remaining part of the estate goes solely to the son's son. The ibniyyahs will have nothing. If the boy's share is doubled, according to the respective rule, the shares of the daughters would have surpassed the two-thirds. The Prophet stated: " The shares of daughters does not exceed two-thirds ". One may refer to the literature for minority opinions and more information in this point. f. Ibniyyahs are deprived from any share by the son (ibn) of the deceased. Here is a scheme to apply the rules on. The explanatory note follows : First Group : Three daughters, a. Son's daughter, b. daughter of the son's son and c . daughter of a son of the son's son. Second Group : Another three daughters : d. Daughter of a son'son, e. daughter of the son of the son's son and f. daughter of the son of the son of the son's son. Third Group : Another three daughters g. daughter of the son of the son's son, i. Daughter of the son of the son of the son's son and h. daughter of the son of the son of the son of the son's son. As an illustration let us assume that the deceased leaves back three daughters of his son, each one of them being lower than another in the family tree. He also leaves three more daughters of another son's son and also three daughters of another son of the son's son. The daughters in these cases are forming a ladder in the family tree, each one of them occupying one step lower/higher than others. These are three different groups of daughters left by the grandfather who died. Let us number these three groups as first, second and third. Let us keep in mind that each one of the daughters in all the groups relate to the deceased with male ascendants, in other words, there is no female who links her to one whose estate is to be divided. Who is parallel to who, who is lower than the others, and who is higher than the others? The ones who are at the same distance to the deceased what are they going to do? Do they share and split the same amount of the share among them? These are some of the problems,a scholar has to tackle. Let us examine the charter a little in detail for further clarification. The middle one in the first group is at the same level of distance with the first girl in the second group. The lowest daughterin the first group is parallel and at the same distance withthe middle one in the second group and also the lowest in the third group. The lowest in the second group is at the level of the middle daughter of the third group. And the lowest one in the third group has no one who is at her level of distance. Now the first daughter in the first group will have half of the estate, the middle daughter of the first group will share and split one sixth with the ones who are at her level of distance. This one sixth will round up the shares of the daughters to its maximum, which istwo-thirds.The ones who are lower thanthese daughters will get nothing, except in case there is a boy in the line who will let them be agnates ( asabah ). This boy will make the daughters who are at his level of distance or higher than him, and so nearer to the deceased than he is, agnates and they will get the rest. But the daughters who will benefit from this occasion must not be entitled to have any share besides this one. The daughters who are lower than the boy and farther in terms of distance to the deceased than he is will get nothing. They all are excluded, for the shares are finished. al-Sarakhsi can be referred to for a wide spectrum of points on Ibniyyahs (al-Mabsut, vol. XXIX, pp. 138-151 ). Let us deal with the problems of ibniyyahs and exercise a little bit more on the practicalities: Half 1 B 1 1. M ---------------------------------- D of son FulluncleF 2 Two-thirds 2 B 1 2. M ----------------------------------- Two D of son HuncleF 3 Half 3 Sixth 1 B 2 3. M ------------------------------------- daughter D of son Fbr 6 Two-thirds 2 T B 1 4. M ------------------------------------------ Two D D of son HuncleF 3 Two-thirds 2 B 1 5. M -------------------------------------------- Two D 4 D of son 1 3 & son of son 2 3 ----- 9 The daughter of the son and the son of the son shared their common share ( 1 multiplied by 3 ) according to the rule of double the share of the daughter will go to the son. If we change the level of distance of the grand daughter and grandson to farther a point, keeping in mind that the lineage always has to be with the males in the chain of family tree, the problem will not differ from what we have above. Whole estate Nothing 6. M ------------------------------ Son D of son IV. Full Sister/s ( Akhawat la-huma ) : Full sisters have five positions in inheritance issues. Below the student of Islam will find the classical information displayed in the literature. a. Half : one full sister will get half of the estate. b. Two-thirds: Two-thirds are the common share of the two and more full sisters. c. Asabah : They will be qualfied as asbaha ( agnate and residuary ) if a full brother exists as inheritant. They are all at the same level in terms of relation to the deceased. d. The full sisters will receive just what is left if they are together with the daughter/s ( sulbiyyah ) or daughters of the son( ibniyyah ),for the Prophet stated it like this: " You make the sisters who are with the daughters asabah ( residuary ) ". e. Exclusion : The full sisters are excluded and deprived from their shares by the existance of a) the son, or son's son in the absence of the son,this may go down as far as possible, and b) by the father as unanimously admitted in Fiqh literature and also by the grandfather (jadd ) in case of the absence of the father. However the last point is debatable among Muslim jurists. The Scriptural soures of the shares cited above are as follows : " If it is a man that dies, leaving a sister, but no child, she shall have half of the inheritance.If the deceased is a woman, who left no child, her brother takes her inheritance : If there are two sisters,they shallhave two-thirds of the inheritance between them. If there are brothers and sisters, they share with the male having twice the share of the female " Surah al-Nisa' -IV- verse 176). The brothers and sisters who are cited above are full ones or half brothers and sisters on the father's side. They are meant in this verse. The half brothers and sisters from the mother's side (awlad al-Umm) have been dealt with before and substantiated in terms of Scriptural sources. al-Sarakhsi gives a very good argument about the shares of brothers and sisters in general : al-Mabsut, vol. XXIX, pp. 151-160 ). Here are a few problems illustrating the topic : Half 1 B 1 1. M ----------------------------------- Full sister Hbr. 2 two-thirds 2 B 1 2. M ----------------------------------- Two full strs HuncleF 3 B a q i 3. M --------------------------------- Full sister 1 Full br 2 3 Half 1 B 1 4. M ----------------------------------- Daughter Fullstr 3 The problem will not change in case we subsitute the daughter with the son's daughter or with the daughter of the son's son. Two-thirds 2 B 1 5. M ------------------------------------ Two daughters Fullstr 3 Whole estate T 6. M --------------------------------- Son Fullstr The problem will stay unchanged if we place the son's son or the son of the son's son instead of the son in the last problem. Whole estate Nothing 7. M ----------------------------------- Father Fullstr The above problem will stay unchanged if we placethe real grandfather in theplace of the father.Thisview goes to Abu Hanifah, may Allah be pleased with him. V. Half Sisters on the father's side ( Akhawat li-Ab ) : Half sisters on the father's side are almost like the full sisters. They have seven positions :a. Half for one with no full sister. b. Two-thirds for two and more with the condition of no full sister. c. Sixth : They will have one sixth if there is only one full sister. So this will make the shares of sisters in total completed to two-thirds which is the maximum of the sisters' share. d. Exclusion : They will get nothing if there are two or more full sisters in the picture. Because the maximum share has already been consumed. e. Asabah : The previous rule has an exception, that is if there is a half brother on the father's side, he makes themsharethe rest according to the rule that double the portion of the female will go to the male. f. Asabah : They will be all asabahs ( residuaries ) together with the daughter/s or the son's daughter/s, it may go down as much as possible, being males in line. g. Exclusion : Half sisters on the father's side together with their brothers ( banu 'l-allat ), like the full sisters and brothers ( banu 'l-ayan ), they are all excluded from the inheritance by a) a son or son's son, no matter how far he is, and b) the father, unanimously and the real garndfather also according to the view of Abu Hanifah. This exclusion is based on the follwing Scriptural evidence : " he will inherit if the deceased does have any child,i.e.son ". This is for the brothers, and " If he does not have any child and he has asister,then she will have half ". This last part is related to the sister. ( Surah al-Nisa', IV- verse 176 ). It is obvious that the son's son may replace the son in his absence. The real grandfather as an exclusive factor will be dealtwith a little more in detail in its context on the subject related to " Muqasamah ". The halfsisters and brothers on the father's side are removed from inheritingwith the full brother by virtue ofwhathasbeen explained as the relation betweeen the sulbiyyahs and ibniyyahs. The same rule functions here as well. The Scriptural sources for half sisters on the father's side are the same with the full sisters who are dealt with in the previous item. Some illustrative problems : Half 1 B 1 1. M ------------------------------ HstrF FuncleF 2 Two-thirds 2 B 1 2. M ------------------------------ Two HstrF HuncleF 2 Sixth 1 Half 3 B 2 3. M ------------------------------------- HstrF Fstr HuncleF 6 T Two-thirds 2 B 1 4. M -------------------------------------- HstrF Two Fstrs FuncleF 3 Two-thirds 2 B a q i 1 5. M -------------------------------------- Two Fstrs HstrF 3 HbrF 3 3 ------ 9 Half 1 B 1 6. M --------------------------------------- Daughter HstrF 2 If we substitute the daughter with the son's daughter, the problem will not change. Whole assets Nothing 7. M ------------------------------------- Son HstrF Substitution of the son with the son's son or the son of the son's son will never affect the structure of the previous problem. Whole estate Nothing 8. M ------------------------------------- Father HstrF If we place the real grandfather ( this is according to Abu Hanifah ) or the full brother in the place of the father in the problem given above, the structure will remain the same. Half 1 B 1 T 9. M ----------------------------------- Daughter Fstr HstrF 2 If we put the daughter of the son or the daughter of the son's son in the place of the son at the issue above no change will be required. VI. Halfsisters on the Mother's Side ( Akhawat li-umm ) :This group's position has been inclusively discussed together with their brothers in the Male Group, item III above. VII. Mother ( al-Umm ) : She has three separate positions in terms of inheritance. Here they are : a. Sixth: The mother will receive a sixth if she is with a) the child/children or child/children of the son ( no matter how low that goes down the line of the family tree ) of the deceased or b) two or more sisters or brothers ( no matter whether they are full or half, either of the father's side or mother's side ). Just a small point to be noted here: Half brothers and sisters on the fathe's side do not inherit anything if they are together with the full brother, so the half brother or sister becomes the loser ( akh or ukht al-shu'm ). The child includes the children of the son or the son's son and the brothers and sisters also may be full or half, since the words mentioned in the Holy Qur'an are mentioned in their literal context and have no restrictive and defining component parts (taqyids). Only Ibn Abbas differs from the majority and he accepts three brothers and sisters as cause for depriving the mother from her share. The mother will have one third with two of them. One may refer to the literature in this regard for further information. b. Third : The mother will have a third of the whole estate if there are none of the children or brothers and sisters mentioned above. c. Third of what is left after the substraction of shares of any one of the spouses. The first position is clearly cited in the text of the Holy Qur'an which follows below. The second one occurs in two compositions of problems only: That is the husband and parents or the wife and parents. This is the view of the majority of the Companions of the Prophet and Muslim Jurists. But Ibn Abbas is of the opinion that she will have one third of the whole estate in these cases too. If we substitute the father with the real grandfather, then the mother will have a third of the whole wealth, except according to Abu Yusuf. To him, they will have a third of what is left over. Literature is full of the opinions regarding this point. The evidence from the Holy Qur'an is like this: " Each one of the parents will have one sixth of the wealth the deceased left, if he has child. If he has no child and his parents inheritted from him, the mother will have a third. If he has brothers, the mother will receive one sixth after the legacies and the debts are paid off " (Surah al-Nisa' -IV- verse 11 ). Some Practical Problems : Sixth 1 B 5 1. M ----------------------------------- Mother Son 6 If we substitute the son with the son's son or son of the son's son nothing will change in the problem. Sixth 1 Half 3 B 2 2. M ----------------------------------------- Mother Daughter HuncleF 6 Substituting the daughter with the daughter of the son or the son's son and also the halfuncle on the father's side with the full uncleon the father's side will not affect the issue. Sixth 1 Baqi 5 3. M ----------------------------------------- Mother 2 Two Fbrs 10 6 2 ---- 12 Sixth 1 Two-thirds 4 B 1 4. M ------------------------------------------ Mother Two Fstrs 4 HuncleF 6 Sixth 1 B 5 5. M ------------------------------------------ Mother 2 Two HbrsF 10 6 2 ----- 12 Sixth 1 Two-thirds 4 B 1 6. M ------------------------------------------ Mother Two HstrsF HUncleF 6 Sixth 1 Sixth 1 B 1 7. M ------------------------------------------- Mother HbrM HbrF 6 Sixth 1 Baqi 5 T 8. M -------------------------------------------- Mother Full br. HBrF 6 If we substitute the halfbrother on the father's side with the halfsister on the same line, nothing will be changed in the problem. The halfbrother and sister on the father`s side in this problem are called " brother/sister of evil ( akh/ukht al-Shum ). Sixth 1 Sixth 1 Half 3 B 1 9. M --------------------------------------------- Mother HstrM HstrF HuncleF 6 Third of whole estate 1 B 2 10. M ---------------------------------------------- Mother Fbr 3 The problem will remain the same if we substitute the full brother with the halfbrother by the father's side. Third of remanider 1 Half 1 B 2 11. M ------------------------------------------------ Mother 1 Husband 2 Father 2 3 ----- 6 Third of remainder 1 Fourth 1 B 2 12. M -------------------------------------------------- Mother Wife Father 4 Third of whole 2 Half 3 B 1 13. M --------------------------------------------------- Mother Husband Gp 6 This is based on the opinions of two imams ( Abu Yusuf and Imam Muhammad ). Third of whole 4 Fourth 3 B 5 14. M ------------------------------------------------------ Mother Wife Gp 12 This also is according to two imams. Third of remainder 1 Half 1 B 2 15. M -------------------------------------------------------- Mother 1 Husband 3 Gp 2 3 ----- 6 This is according to Abu Yusuf. Third of remanider 1 Fourth 1 B 1 16. M -------------------------------------------------------- Mother Wife Gp 4 This is also according to Abu Yusuf's juristical opinion. VIII. Real Grandmother ( al-Jaddah al-Sahihah ) : She has two main positions: a) She will have a sixth, no matter if she is on the mother's side or the father's side, one or more than one, provided they are real grandmothers and at the same distance to the deceased. It is narrated by Abu Sa`id al-Khudri and Mughirah b. Shu`bah and Qubaidah b. Dhu'aib that the Prophet Muhammad, pbuh, gave to the grandmother a sixth. As for the evidence of sharing the same portion if they are more than one,it goes back to the practice of Abu Bakr al-Siddique. He decided on that matter after consulting his friends and giving the decision. There are numerous reports in this regard. b) She/they is/aredeprived from inheritance by ba)the mother ( all grandmothers, no matter whether they are on the mother's or father's side ). bb) The father deprives the grandmothers who are on father's side. This point is mainly the view of caliphs Uthman, Ali and Zaid b. Thabit and others. Grandmothers on the father's side are excluded from inheritance also by the real grandfather, no matter how high they asdcend on the family line. This has an exception. That is the mother of the father.Shecannotbeexcluded this way. She will inherit together with the grandfather, since she is not linked to the deceased by him. His relation does not stem from him. She is his wife. If she is a little far, then more than two grandmothers may inherit at the same time. Here I feel firmly to refer to the very detailed analytical views on the grandmother as early as the fifth century of Islam by some jurist who came from a land newly joined to the Islamic faith. That is al-Sarakhsi, al-Mabsut, vol. XXIX, pp.165-174. Inheritant Inheritant Here is a figure : ---------------------------------------- Mother of M of F Father of F of M Another figure : ------------------------------------------ MMFF and FFFF MMMF These three grandmothers are at the same distance to the deceased. So they will inherit together. The nearer grandmother excludes the ones who are farther than her,no matter whether the nearest one is from the father's or the mother's side. The exclusion will be whether thenearest one actually takes some share or she herself is deprived from her right, because of any reason acceptable in this field. Here one may see some different views in Islamic Jurisprudence. Zaid b. Thabit, Imam Malik, Imam al-Shafi`i and al-Hasan b. Ziyad are mentioned in this regard in the literature on Islamic Law. Now let us examine the status of a grandmother froma different perspective. That is the problem of what are we going to do if the grandmothers have a relation linked to the deceased by more than one line. For example a grandmother is linked to her grandchild only in one way ( Mother of the mother of the father ) and another grandmother is linked with two or more ways to her grandchild ( mother of the mother's mother who is at the same time the mother of the father's father ). We may draw the following chart: M -------------------------------------- MMF MFF-MMM MMF has one way of relation, but MFF is at the same time MMM of the deceased her relation is two ways. According to Abu Yusuf one sixth will be divided fifty-fifty to the twoliving grandmothers,taking into consideration justtheir numbers. This view is backed by Sufyan al-Thawri too.But Imam Muhammad divides one sixth between them as one third toone who has one way relation and two-thirds to the grandmother who is linked two ways with the grandchild. As we see Imam Muhammad takes the power of relation into consideration. Imam Zufar also joined him in this idea. The split in views about this problem may be traced further by a curious student of Islam in related sources. Lastly,in this chapter let us record some problems which will elaborate the topic a little more in detail. Sixth 1 B 5 1. M ----------------------------- MM HbrF 6 Sixth 1 B 5 2. M ------------------------------ MF HuncleF 6 S i x t h 1 B 5 3. M ------------------------------- MM 2 MF FuncleF 6 2 ------ 12 Third of Whole 1 T T B 2 4. M ---------------------------------------- Mother MM MF HuncleF 3 Sixth 1 T B 5 5. M ------------------------------------- MMM MMF Father 6 Sixth 1 T B 5 6. M ------------------------------------- MMM MFF Gf 6 Sixth 1 B 5 7. M ------------------------------------- Mother of father Gf 6 Sixth 1 T B 5 8. M ------------------------------------- MM MMM HuncleF 6 Sixth 1 T B 5 9. M -------------------------------------- MF MMF HbrF 6 Sixth 1 T B 5 10. M --------------------------------------- MMM MMMM FuncleF 6 Whole estate T T 11. M --------------------------------------- Father MF MMM S i x t h 1 Baqi 5 12. M --------------------------------------- MMF 2 MFF-MMM HuncleF 10 6 2 ------ 12 Here the mother of the father's father is at the same time the mother of the mother's mother. So her relation is a double way, whereas the mother of the mother of the father has a one way relation to the deceased. This problem is set up according to Abu Yusuf. The religious verdict is based in practice on this view. S i x t h 2 B 5 13. M --------------------------------------- MMF 3 MFF-MMM HuncleF 15 6 3 ----- 18 Here the problem is set up according to the opinion of Imam Muhammad. In this chapter, we are through with the shares and their owners. C h a p t e r Asabah, Zawu 'l-Arham and Hajb 1) Asabah : There are a group of people who are qualified as Asabahs.They take the rest of the inheritance after the fixed shares are distributed among their owners. They are called in some literature, residuaries. They are mainly agnate relatives of the deceased. The word " asabah " literally means, relatives of a person's father's side. We have mainly two groups of Asabahs: A) Asabahs stemming from the blood relation ( Asabah Nasabiyyah ) B) and Asabahs resulting from another cause ( Asabahs Sababiyyah ). Let us examine the subject a little more in detail. A) Asabah Nasabiyyahs are categorized into three subgroups : I. Asabahs by themselves. II. Asabahs because of others. III. Asabahs together with others. Now each one of them will be dealt with in detail respectively. I. Asabah by themselves ( al-Asabahs bi-nafsihi ) : These are agnates of the deceased, by definition theyare male relatives who are not linked to the deceased with any female. In otherwords,all relatives in the line are males in addition to themselves. The ones who are linked by a female to the deceased either have fixed shares or are members of a group called " Zawu 'l-Arham ( Cognate relatives ). The Asabahs by themselves are subgrouped in four different subtitles. They are graded in the following ranks : 1. Descendants of the deceased : They are the sons, sons of the sons, it may go farther and farther down the line. 2. Ascendants of the deceased : They are the father of the deceased, then the real grandfather, that is the father's father, it may go up and up. 3. Descendants of the father. They are the brothers, then the sons of the brothers, the chain may go down and down. 4. Descendants of the grandfather. They are uncles on the father's side, then their sons and son's sons. No matter how far the chain goes. The logic in this grading is like this: The offspring come before the main trunk. The branches of a tree are more clearly attached beyond doubt to the ground. So the ground is included in transaction by selling the building or the tree, whereas the opposite is not automatically true. The brothers' coming after the grandfather is the view of Abu Hanifah which is not shared by his two students, Abu Yusuf and Muhammad. Ranking the descendants of the grandfather ( i.e. uncles by the father's side ) are because of their being distant relatives on the family line compared with the previous people. Some governing principles in inheritance of Asabahs : There are some principles which are totally dominant among agnates of the deceased. a. The nearest comes first ( al-aqrab fa 'l-aqrab ). They have preferences based on whether or not they are near the deceased. The ranking set above is the basic way of aligning the preferences in terms of who is going to actually inherit, and who is to be excluded. b. Then they are to be privileged by the power and strength ( quwwah ) of relation. That is if there are two or more than two agnates at the same time, and some of them are related to the deceased by two or more lines, the one who isstrongest will inherit, the weak one will be deprived. Being male or female does not affect the outcome of this rule. The Prophet Muhammad,pbuh, is reported to have said " The full brothers and sisters ( Banu 'l-a`yan ) inherit, and the half brothers and sisters on the father's side(Banu 'l-allat) do not ".For example a full brother comes before a halfbrother from the father's side and a full sister takes the lead, given the fact, she becomes asabah by the daughter and excludes the halfbrother on the father's side. Here Ibn Abbas has an opposite view, since he does not recognize quality of asabah to the full sister by virtue of a daughter. Also the son of a full brother sweeps away the son of a half brother on the father's side. Although both are at the same distance to the deceased, their relation strength differs from one another. The same rule is strictly applicable to the uncles of the father's side,( uncles of the father), given they are alsoon the father's side and also the uncles of the grandfather with the same definitive elements mentioned above. The student of Islam needs to consider first their ranking grades, then their power and strength of relation in case the two have the same rank. Some problems related to this part : a) Descandants : Fourth 1 B 3 T 1. M ---------------------------------------- Husband Son FuncleF 4 Fourth 3 Sixth 2 B 7 2. M ------------------------------------------- Husband Mother Son's son 12 If the mother is substituted by the father and the son's son also is substituted by heson of the son's son, no change in the structure of the problem is required. Eighth 1 B 7 T 3. M ------------------------------------- Wife Son HbrF 8 Nothing will change if we place the son's son for the son of the half-uncle on the father's side for the halfbrother. Eighth 3 Sixth 4 Sixth 4 B 13 4. M --------------------------------------------------------- Wife MM Father Son of son's son 24 If we substitute the mother's mother with the mother and the father with the grandfather, no change in the problem will be required. b) Ascendants : Half 1 B 1 T 1. M -------------------------------------- Husband Father Fbr. 2 If we place the grandfather instead of the father ( according to Abu Hanifah ) nothing will change. The same problem may be set up by the composition of the husband, the father's father and full uncle on the father's side. The process remains the same. Fourth 1 B 3 T 2. M --------------------------------------- Wife Father HbrF 4 If the father is substituted by the grandfather or the father of the grandfather, and the son of the halfbrother on the father's side represents his father, no change is needed according to Abu Hanifah. c) Descandants of father : Half 1 B 1 T 1. M ------------------------------------- Husband Fbr. HbrF 2 A full brother excludes a half brother, because he is stronger than the latter in terms of relation. The problem will remain the same even if we place the children of the brothers in place of the fathers. Fourth 1 B 3 T 2. M --------------------------------------- Wife Fbr FbrF 4 The same logic given in the first problem above is also effective here. Fourth 1 T B 3 3. M --------------------------------------- Wife Son of Fbr HbrF 4 In the case above the son of the full brother will get nothing because he is farther in terms of distance compared to the halfbrother on the father's side. Half 1 B 1 T 4. M ----------------------------------------- Husband Son of Fbr FuncleF 2 Here the full uncle on the father's side will get nothing because he is the descendant of the grandfather. Fourth 1 B 3 T 5. M ------------------------------------------ Wife Son of HbrF FuncleF 4 d) Descendants of grandfather : Half 1 B 1 T 1. M ------------------------------------------ Husband FuncleF HuncleF 2 Here the halfuncle on the father's side is deprived from any share, because he is weaker than the full uncle on the father's side. If we set up the problem with the descendants of the children of the grandfather, the weakest will be the loser. The denominator of the problem stays unchanged in these cases. Fourth 1 B 3 T 2. M ------------------------------------------------- Wife Son of FuncleF D of FuncleF 4 If theproblemis set up with the descendants ofthe children of the grandfather,the same rule will function.Thestrongest will inherit. II. Asabahs because of others ( al-Asabah bi-ghairihi ) : This is a group of people who are not by themselves asabahs ( residuaries), but they benefit from the presence of some specific inheritants,and become asabahs by virtue ofothers.They are fourin number and all are ladies.They are theladies whose fixed shares are either halves or two-thirds. Here they are : a. Sulbiyyah/s ( Daughter/s ) : One or more. b. Ibniyyah/s ( Daughter/s of son ): One or more. c. Full sisters : One or more. d. Half sisters on father's side: One or more. All of these ladies,given the conditions mentioned respectively in their proper places, become asabah/s when they are together with their brother/s.The ayah related to the rule of giving twice of the share of a female child to the male child is the evidence in this context ( Surah al-Nisa' -IV- verse 11 ). The following ayah is the ground as well : " If they are brothers and sisters, then the male will get twice of the share of the female "(Same surah, verse 176 ). A female who has no fixed share, but her brother is asabah, will not become asabah because of her brother. For the Scriptural evidences are cited in the context of the ones who have autonomiously shares ( That is daughters and sisters with their brothers ). For example if we have an uncle and aunt on the father's side ( i.e. amm and ammahs ), given that both of them have full or half relation, the whole property will go to the uncle and the aunt will be excluded. Some problems set up to solve practical challenges of the asabahs because of others: Eighth 1 B 7 1. M ------------------------------------------- Wife Son 21 Daughter 8 14 7 3 ------ 24 Fourth 1 B 3 2. M ------------------------------------------- Husband D of son Son's son 4 1 2 Sixth 1 B 5 3. M -------------------------------------------- Mother 3 Son's son 15 Son's D 6 10 5 3 ----- 18 If we set up the problem by placing the father's mother in place of the mother, and the children of the same grandchildren for their fathers and add a sulbiyyah ( immediate daughter ) with a half share, the denominator will be the same ( 6 multiplied by 3 = 18 ) from which the father's mother will receive 3, the grandson will get 4, the granddaughter will receive 2 and the daughter will receive 9 out of 18. Fourth 1 B 3 4. M --------------------------------------------- Wife Fbr 2 Fstr 1 4 Half 1 B 1 5. M ---------------------------------------------- Husband HbrF 3 Hstr 2 3 2 1 3 --------- 6 Sixth 1 B 5 6. M ----------------------------------------------- M of Mother HbrF 15 HstrF 6 3 10 5 3 ----- 18 III. Asabah together with others ( Asabah ma`a ghairihi ) : This is also a group of ladies. They exclusively acquire the quality of Asabah when they are in the company of another female. For example a full sister or halfsister by the father's side becomes asabah when she is with the daughter of the deceased. This is based on " make the sisters asabah together with daughters " ( the saying of the Prophet Muhammad. It was dealt with enough before ). Here are some problems with their solutions : Fourth 1 Half 2 B 1 1. M ------------------------------------------- Husband daughter Fstr 4 Eighth 1 Half 4 B 3 2. M -------------------------------------------- Wife Son's D HstrF 8 Sixth 1 Half 3 B 2 3. M -------------------------------------------- Mother Daughter HstrF 6 If we substitute the mother with the father's mother and the daughter with the daughter of the son's son nothing will change in the problem. B) Asabah Sababiyyah : Ex-master of the freedman ( mawla 'l-ataqah ) : It was mentioned earlier that the second type of asabah is one called "mawala 'l-ataqah" which is the ex-master of the freedman. This is called " wala' " . That has been cited among the causes of the qualificationas inheritant. There are quite a few heated debates on whether or not this type of asabah comes after Zawu 'l-arham, (cognate relatives roughly) and the rest of the shares are to be given extrato the ones who have fixed shares. Zaid b.Thabit is of the view that it comes first, but Ibn Mas'ud has a view of having it processed after them. Each has his argument, well debated and defended. The ex-master is asabah at the first level. Then his asabah relatives become asabahs once more in the ranks displayed above. The Prophet Muhammad, pbuh, said : " Wala' is a relation (luhmah) like blood relation ". So the women among the inheritors of the emancipator will have nothing as a share with the exception based on the following saying of the Prophet,pbuh : "There is no share of wala' for the women, save the ladies who freed or freed of that they freed, or the ones who made kitabah, or made kitabah who they granted kitabah, or they made tadbir or the ones who they granted tadbir made kitabah, or the ones who dragged the wala' of their emancipater or emancipater's emancipater". One may refer for more information and about the detail to Fiqh literature. If the freedman leaves a father and the son of the emancipator, one sixth of wala' will be the share of the father and the rest ( that is five out of the six ) will go to the son. This view is stated by Abu Yusuf. It is also one of the two views reported from Ibn Mas`ud. Shuraih al-Nakha`i joins tothem. Abu Hanifah and Muhammad b.al-Hasan al-Shaibani are of the opinion that wala' totally goes to the son. Imam al-Shafi`i shares the same view. If the freedman leaves the son and the grandfather of the exmaster, the entire right of wala' will go to the son according to the unanimous view of Muslim jurists.Anyone who gets a hold of ownership of a slave who is his blood relative, the slave automatically gets freed and the wala' will be his right. Here is an example to elaborate this point : There are three daughters born to a slave and his free wife. The oldest daughter paid thirty dinar and the youngest paid twenty dinar and both bought their father against fifty dinar. The father died, and left some estate to be divided among the inheritors. Two-tirds will be divided equally to the three daughters as their fixed shares stemming from blood relation. One third of the estate will be divided among the payers for their father by virtue of wala' of which three-fifths will go to the oldest, who paid thirty dinar, and two-fifths will go to the youngest daughter, who shared twenty dinars in buying the freedom of her father. So everyone will get something more proportionated to her payment for the transaction of buying the father. It is obvious that the proportions are three to five and two to five. The denominator of the problem will end up to fourty-five after due process. The problems related to this point are called " dinar problems (almasa'il al-dinariyyah ) ". They will be overlooked here to save time and space. Let us elaborate the topic with some practical problems : Two-thirds 2 B 1 1. M ------------------------------------- D 1 D 1 Ex-master 3 Half 3 Sixth 1 B 2 2. M ------------------------------------- Daughter Son's D Ex-M 6 If we substitute the daughter with the mother ( her share will be one sixth ) no change in the denominator is needed. Of course the son's daughter will get half of the estate, since she will substitute the daughter in the previous problem. Fourth 1 Half 2 B 1 3. M --------------------------------------- Husband D Ex-M 4 Sixth 1 Half 3 B 2 4. M --------------------------------------------- Mother D Ex-M's son 6 Half 1 B 1 5. M ----------------------------------------- Husband Ex-M's son's son 2 If we substitute the grandson with the grandfather nothing will be changed in the practice. Fourth 1 B 3 6. M ------------------------------------------ Wife Ex-M's father 4 Third of Whole 1 B 1 7. M ------------------------------------------- Mother FBr of Ex-M 2 If we substitute the full brother in the problem by the half uncle on the father's side, no change will be needed. Eight 1 Half 4 B 3 8. M ----------------------------------------------- Wife D HbrF of Ex-M 8 Fourth 1 Half 2 B 1 9. M ---------------------------------------------------- Husband D of son FuncleF of Ex-M 4 If we have a full brother and a full sister of the ex-master instead of full uncle on the father's side in the problem, nothing will be changed with the exception that the full sister will get nothing,the rest will go to the full brother of the ex-master. Two-thirds 2 B 1 10. M ------------------------------------------------ D 1 D 1 Ex-M's son & D 3 Notice that the ex-master's daughter will be excluded. Fourth 3 Third of whole 4 B 5 11. M ------------------------------------------------- Wife Mother Ex-WM 12 Fourth 1 Half 2 B 1 12. M ------------------------------------------------ Husband Daughter Ex-WM of ex-WM 4 Third of whole 1 B 1 13. M ------------------------------------------------- Mother Ex-WM-kitabah 2 Half 1 B 1 14. M -------------------------------------------------------- Daughter Ex-WM-kitabah of Ex-WM-kitabah 2 Half 1 B 1 T 15. M -------------------------------------------------------- Husband Ex-M's son Ex-M's father 2 This is according to two imams ( Abu Yusuf and Muhammad ). Sixth 1 B 5 16. M ------------------------------------------- Ex-M's father Ex-M's son 6 This is set up according to the view of Abu Yusuf. Whole estate T 17. M -------------------------------------------- Ex-M's son Ex-M's grandfather 2) Zawu 'l-Arham : The next subject to be dealt after asabahs will be cognate relatives of the deceased. They are called " Zawu 'l-arham ". The word " zawu " is the plural form of " zu " whichmeans" owner, possessor, belongs to " and the word " arham " is the plural of " rahm " which means in this context " womb, blood relation ". Zu 'l-rahm is the singular and literally means " one who is a relative ". Its terminological meaning in the field of Inheritance Law is " any relative who neither has a fixed share nor is asabah ". Actually, making the relative inheritants of the deceased was a later process after the legacies functioned for a while. An ayah in the Qur'an relates to this turning point : " The Prophet is closer to the believers than their ownselves and his wives are mothers. Blood relations among each other have closer personal ties in the decree of Allah than the brotherhood of believers and muhajirs : Do you what is just to your closest friends : Such is the writing of in the decree of Allah " ( Surah al-Ahzab, -32- verse 6 ). As we all know the first bunch of Meccan Muslims who migrated to Medina were made into the brotherhood so strongly that they were considered as inheritors to the local hosting Muslims. The above verse refers to that and closes one of the stages of the Inheritance Law process which took place in the early years of Islam. The word " Ulu 'l-arham ", which is another form of " zawu 'l-arham ", the title of this chapter,also means the relatives. The general public of the Companions of the Prophet Muhammad,pbuh, including Caliph Umar, Caliph Ali, Ibn Mas`ud, Abu `Ubaidah b. al-Jarrah, Mu`az b. Jabal, Abu 'l-Darda' and Ibn Abbas, then Alqamah, Ibrahim al-Nakha`i, Shuraih, al-Hasan, Ibn Sirin, Ata and Mujahid from the followers of the Companions, all were ofthe viewof letting these cognaterelatives inherit the estate. The Hanafite Fuqaha' adopted this view. Abu Hanifah, Abu Yusuf, Imam Muhammad, Zufar and others were in the same line. But Zaid b. Thabit,who is a very famous specialist of Inheritance Law and also in the service of Qur'anic Studies, who served in the collection of the Holy Qur'an during the Orthodox Period of Islam, is just of the opposite opinion. He says " there is no share from inheritance to the cognate relatives and the estate has to go to the Treasure of the Islamic State ". Ibn Abbas, in one of his unknown views, shared the view with Zaid and Said b. al-Musayyib and Said b.Jubair from the second generation followed this line of practice. Imam Malik and Imam Muhammad b. Idris al-Shafi`i also have the same opinion of not letting this group inherit anything. There are interestingly enough arguments, which both of the groups developed. Ilm al-Khilaf, Comperative Islamic Law, deals and sorts out the ideas and relates them to modern time and places them in proper perspective. For general reference I'd like to mention here al-Sarakhsi, al-Mabsut, vol. XXX, pp.2-27. Zawu 'l-arham are four groups : I. The descendants of the deceased : These are the child/children of daughter/s. No matter whether they are male or female and no matter how far they are to the deceased. The child/children of the daughter/s of the son obviously is/are in the same category. II. Grandfatherswho are excluded from the inheritance, being false grandfathers, no matter how far away from the deceased. Also false grandmothers are in the same category. The father of the mother of the deceased and the mother of the father of the mother of him can be mentioned respectively as an example. III. Child/children of sister/s and daugter/s on the brothers and also son/s of half sister/s by the mother's side. No matter how far down theyare located on the family chart,male and femaleare equal in all aspects. Nothing will change if they are ful or half related to the deceased. al-Mabsut, XXX, 13. IV. The uncles and aunts.These are the ones who are descendants of two grandfathers and two grandmothers. No matter whether they are male or females, full or halves in their relation to the deceased. In Arabic we have different words for them : " Amm " is father's brother ( uncle on father's side ) and " khal " brother of the mother ( uncle on mother's side ). " Amma " and " khala " are feminines of the two respectively. al-Mabsut, XXX, pp. 18-24. All of these four groups and the ones who are connected through them to the deceased are considered as cognates( zawu 'l-arham ). There are preferential rankings among them. The first ones on the list given above come first and they exclude the ones who are lower and farther in terms of distance to the deceased. There are two different versions of reports from Abu Hanifah. The second version, which is to be taken as religious fatwa, is that the above list of ranking is fine, but with one correction, that is the ranking given for the asabah in its respective title has also to be pursued here.There are some views which opine the combination of both points of Abu Hanifah in one set. According to two Imams ( Abu Yusuf and Muhammad ) the third group preceeds the half grandfather on the mother's side (i.e. mother's father ). Because according to them each one of the members in the third group comes before his offspring with no change how far that goes down the line and the offspring also come before the origin ( asl ). After paving the way this much, let us proceed for a more practical details: I. First Group: The nearest one to the deceased comes first here. For example, the daughter ofthe daughter is preferred to the daughterof the daughter of the son. If there are more than one cognate relatives and they are at the same level of distance to the deceased, then the one who is the descendant of some relative who is an inheritor comes first. For example the daughter of the daughter of theson has preference to the son of the daughter of the daughter. But if there is no one whose origin ( asl ) is not an inheritant or all of them meet the same conditions, according to Abu Yusuf and al-Hasan b.Ziyad, the heads ( abdan ) of the descendants are to be taken as criterium and the property will be divided among them equally irrespective to their gender. No matter whether the gender of the origin ( asl ) were the same or different from each other. According to Muhammad the heads of the offspring are to be taken as criterium only if the gender of the origin is the same. But if the gender of the origin is not the same, then the origin is to be taken as criteium and their shares are to be given to the offspring. This is the opposite view of the two Imams. Here is an example : The son of the daughter and the daughter of the daughter. According to the two Imams the estate will be divided among thembased on a double portion going to malesapplying the rule counting the heads, but according to Muhammad the division will workinthe same way,since the gender of the originis not different from one another. But if the deceased leaves the daughter of the son of the daughter and the son of the daughter's daughter,then according to the two Imams, the property will be divided into three parts, of which two-thirds will go to the male and one third will go to the female. This is based on count of the heads of the offspring ( furu` ). According to a Muhammad the property will be divided in the origin, that is at the second level, in two parts. Two-thirds will go to the daughter of the son of the daughter (that is her father's share) and one third is to be allotted to the son of the daughter of the daughter ( that is the share of her mother ). Imam Muhammad acts in the same way if there are more than one grades among the the children of daughters. The property has to be divided at the origininto the nearest level where the differences of gender occur, then the males are to be made into one set, and the females another set, and what is assigned to each set is to be divided farther in the nearest different horizontal line at the same set ( i.e. the total of male shares are to go to their descendants,and the total of female sharesare to be given to their offspring at a point where the first level of differences male and female ). The same adding and dividing process continues to the end of the problem. Here in this case Sajawandi's Commentary " Sharh al-Sirajiyyah " by Sayyid al-Sharif al- Jurjani, gives a seemingly complicated example. One may refer to that chart in case of need of more information. Imam Muhammad followsthesame technique of taking the gender fromthe origin and receiving the numbers from the offspring. Here is the example: the deceased left two sons of the daughter's daughter's daughter, one daughter of the son of the daughter of the daughter and two daughters of the daughter of the son of the daughter. Abu Yusuf divides the property among the offspring into seven parts based on the counting of the heads, Imam Muhammad divides it at the second level on the line where the first difference occured taking the number down and regarding the gender of the origin valid. The denominator stays, as it is, as seven. Four-sevenths goes to the first two granddaughters,that is the share of their grandfather. Three-sevenths will be the share of the next two granddaughters, that will be divided fifty-fifty to their children, that is at the second level ( half will go to the daughter of the son of the daughter of the daughter, being her father's share and the other half will be allotted to the two sons of the daughter of the daughter of the daughter ). The denominator finally will be 28. The view of Muhammad is the more known of the two conflicting views of Abu Hanifah. Now we need to deal with the point of what the shareis of an heir who has more than one line relation to the deceased, in other words the power of relation is stronger than the others. In this case Hanafite scholars count on the power of relation ( jihah ) with a little difference. Namely, Abu Yusuf counts it in the descedants ( al-furu` ), but Muhammad counts it in the origins ( usul ). al-Sarakhsi, al-Mabsut, XXX, p. 15. Let us give an example : The survivors are two daughters of the daughter's daughter. These two daughters are at the same time daughtersof the daughter's son.There is one more heir who is the son of the daughter's daughter. Here the property according to Abu Yusufwill be divided into three, the problem will turn into a case as though the deceased left four daughters and one son. Twothirds will go to the two daughters, who are relatives from two lines ( jihatan ) and one third to the son. But according to Muhammad the property will be divided to them based on the denominator of 28. Two daughters will have 22 shares of it ( of which 16 comes from their father and 6 comes from their mother ) and the son will have 6 shares. Many similar structure can be set up in this regard. II. The Second Group : This group is the false grandfathers and the false grandmothers. They have no share. Here the rule of preference of the nearest one works also. The line of relation does not matter. It may be the father's side or the mother's side.If they are equal in the level of distance,then the descendants of an inheritant come first according to Abu Suhail, Abu 'l-Fadl al-Khaffaf and Ali b. Isa al-Basri. But Abu Sulaiman al-Jawzajani and Abu Ali al-Busti do not see any preference in the last case. If the distance is the same and no one who already inherits is there, or all of them are connected to the deceased by the heirs, if the gender of the connectors is the same and the relation is one type, the division will be on the count of heads. But if the gender of the people in the line varies, then the property will be divided on the first level where the difference of gender takes place, the same way as it is in the first group. But if their powerof relation varies,though the level is the same,twothirds will go to the relatives on the father's side and one third will go to the mother's side.Then, the total of each line will be divided further among their descendants as though the relation does not differ. ( Comp. al-Mabsut, XXX, p. 24 ). III. Third Group : These are the children of sisters, daughters of brothers and sons of half brothers on the mother's side. The applicable rules are the same here as they are in the first group:That is the nearest one has preference. If they are at the same level, then the son of asabah comes before the child of Zawu 'l-arham.Forexample the daughter of a son of a brotherand another son of a sister ( both of them may be full or halves on the father's line or one may be full, the other from the father's line ), the whole property will go to the daughter of the son of a brother, because she is the child of an asabah. If both of them were on themother'sline,the property would have been divided between them according to the rule of the double share of the female goes to the male, counting the heads. But Imam Muhammad divides the property just into two, taking the origins into consideration. If they are equal in the level of relation and none of them are connected by an asabah or all of them are descendants of asabahs or some of them are children of asabahs and some of them are children of heirs who have fixed shares,Abu Yusuf bases this on the strength ofrelation in this case.Imam Muhammad divides the property to the brothers and sisters taking into account the number of descendants ( al-furu` ) and the gender of the origin ( al-usul ). Then what is taken by each subgroup will be divided to their descendants as is the situation in the first group. Here is an example : The deceased left three daughters of different brothers and three sons and three daughters of different sisters. According to Abu Yusuf the property will be among the descendants of the children ofthe fullbrothers and sisters, then among the children of the halfbrothers and sisters on the father's side and then among the children of the halfbrothers and sisters on the mother's side. The rule of double share of the female goes to the male is effective here as well. The denominator will be four, based on the number of heads. But Imam Muhammaddividesthe third of property,being putinto three parts, among the descendants of the halfbrothers and sisters on the mother's side equally, based on their being at the same level in their origin, and the rest will go fifty -fifty to the descendants of the full brothers and sisters, based on number of the descendants at the origin. Half of it will go to the daughter of the brother, that is the share of her father, and the other half will be divided between the two children of the full sister according to the rule of double share of the female to be given to the male. The denominator will be 9. If the deceased leaves threedaughters of the sons of the brothers of variying lines,the property will go solely to the daughter of the son of a full brother, as unanimously accepted, because she is the daughter of an asabah. She is stronger too from the point of power of relation. IV. Fourth Group : These are the ones who are connected to the deceased through grandfathers or grandmothers. They are aunts, from any line, half uncles on the mother's line and brothers and sisters of any mother on any line. As a rule if there is only one individual from this group, he will get the whole property, because there is none who challenges him.If there are more than one and their line of relation is the same, like auntson thefather's side, or uncles and aunts on the mother's side, in this case the strongest one comes first, as unanimously accepted. What it means is this : The ones who are full in relation, they are preferred to ones who are just on the father's side; and one who is on the father's side comes before the mother's side. There is no difference whether they are males or females. If their power of relation is the same, then the male will get the doubleshare of the female,as the situation is in the caseof an uncle and an aunt on the father's side ( both of them being full on the mother's side or they are halves both being on the mother's side). If their relation level differs from one another, the power of relation is not to be counted. Two-thirds will go to the father's side relatives and one third to the relatives on the mother's side. Then the total shares of each subgroup will be divided down to the descendants as it is the situation when the level of relation is the same. As for the descendants in this group, the rule is the same as it is in the first group. The nearest one comes first. If they are atthe same level of relation distance and the line of their relation is also one, then the strength of relation comes first, asa unanimously admitted view.If the strength is also thesame, the child of an asabah comes first as is the case in the problem where there is a daughter of an uncle ( father's side ) and a son of an aunt ( father's side ), both of them may be full orhalvesonthe father's side, the whole property goes to the daughter of the mentinoned uncle. If one of them is full and the other is half on the father's side, the whole property will go to the one who is stronger in relation; this is what is accepted in the clearview( Zahir al-riwayah ). Here the analogical technique is used compared with the aunt on the father's side. She is preferred to the aunt on the mother's side, who is the offspring of an inheritant,although the former is the offspring of a member of Zawu 'l-arham. The preference is because of the power of strength. The preference because of an element which is invested in a person ( i.e. the strength of relation ), is better than the preference ( being connected by an inheritant ), which comes from someone else. Some have the opinion of giving thewhole property to the daughter of the uncle ( father'sside ) becausesheis the offspring of an asabah.If theyareatan equal distance, but their lines are different from each other, then no attention has to be paid either to the strength of relation, or to being the offspring of an asabah. This is also a clear view fixed in this point. Here in this point an analogy between this problem and the problem of the full aunt ( father's side ) is made. Although she is having two ways of relation in addition to his being the son of an inheritant who inherits from both sides, she is not better positioned than a halfaunt ( sister of mother ) on the mother's line. Here two-thirds go to the one who is connected to the deceased through the father's line. The strength of relation first and then their being the offspring of an asabah is taken into effect here in the process. One third goes to the relatives of the mother's line. Here the strength of relation will work. After that according to Abu Yusuf the total shares of subgrouping will be divided among the descendants, considering the lines of relation among the descendants. Imam Muhammad divides the property at the first level where the differences of gender take place by taking the number from the descendants and the lines of relation from the origins. This is the way it is in the first group. The rules which are dealt with above are applicable to the uncles and aunts of two parents of the deceased, then to their children, then to the uncles and aunts of the grandparents and their children, as it was detailed in the " Asabah " section. There are many charts and problems one may encounter in al-Faraid Literature for further references. 3) Hajb : Now we will deal with the subject of exclusion which was lavishly applied earlier to the problems when it was deemed appropriate. The word " Hajb " literally means " preventing, curtailing and covering ". As a term in this field it denotes preventing someone from his share of inheritance totally or partly, because of the existence of a third person. The word " hijab " which means covering the head and the body of a Muslim lady comes from this root. We will use the words " exclusion, depriving, and lessening the share " as counterconcept in English. Types of Hajb : Hajb are of two types : a) Partial Exclusion ( Hajb Nuqsan ). b) Total Exclusion ( Hajb Hirman ). Let us study these two under the same heading a little more in detail. a) Partial Exclusion : Here the exclusion of the inheritanceis partial, the shares are lessened and because of the existence of some other inheritant/s, his/her share is decreased. This type of exclusion is to be applied only to five inheritants : 1. Husband : He is partly excluded from half to one fourth if his deceased wife has a child, 2. Wife : Her share gets diminished from one fourth to one eighth, if the husband has a child.3. Mother : Her share is rendered from one third to one sixth because of the child or two brothers or sisters. 4.Daughter of the son gets one sixth, ( pushed back from one half bythe daughter ),appliying the rule of completionof the share up to the third. 5. Halfsister on the father's side is pushed back from half to one sixth by the full sister. The detailed information may be found in the relevant places of this work. b) Total Exclusion ( Hajb Hirman ) :Here the personisto be totally deprived. He loses all of his share. The inheritors can be divided in this regard to two : ba ) A group which cannot be the subject of this type of exclusion at all. They may be partly deprived, but they do not lose their shares entirely. These are six individuals : Three males and three females. 1. Males : Son, father and husband. 2. Females : daughter, mother and wife. They may lose all rights of being inheritants by the impediments of inheritance, like murder and conversion from Islam to disbelief, this case does not affect their status. bb) A group which may inherit in some cases, and does not get anything in certain conditions. The previously mentioned individualsare not included in this category. The exclusion here is based on two different principles : 1. A person who is connected to the deceased through athird person, does not inherit anything in case the third person exists.For example,the son of the son gets nothing together with the son. This has an exception. Thatis :the children of the mother. They inherit along with the mother, because the mother does not have the right of receiving the whole estate. The connecting person generally takes the whole property. 2. Second dominant principle is the rule " nearer is the inheritor in blood relation, the nearer is in the list of prefernces in sharing the estate ". This rule was discussed and made to work especially in Asabahs. The nearer ones deprive the ones who are farther in distance on the line of the family tree. A person who is totally excluded from the inheritance does not deprive others from the shares, neither totally nor partly, accordingto an understanding of the majority of the Companions of the Prophet. A problem was reported in which Ali and Zaid b. Thabitapplied this rule the first time.The problem is this:A Muslim lady died.She left a husband, two Muslim half brothers on her mother's side and one disbeliever son. Ali and Zaid b. Thabit divided the estate in this problem like this : Half for the husband, one third for the two brothers and the rest for asabahs. But according to Abdullah b. Mas`ud a totally deprived person, may partly exclude someone else. To him the previous problem is to be solved like this : The husband will have one fourth, the two brothers one third and the rest will go to asabahs. The disbeliever, the killer and the slave, all being inflicted with the impediments to the inheritance, do not deprive any one neither partly nor totally. Ibn Mas`ud has an opposite view in regard to the partial exclusion. The arguments about these two different approaches are displayed in the Faraid Literarure. But the ones who are originally entitled to inherit, but deprived totally because of an heir, may exclude others partial and totally, as it is unanimously admitted, with no differences of views. For example, two or more brothers and sisters, no matter which line they are from, do not get anything together with the father. But still they deprive the mother from one sixth to one third. The same rule works in the total exclusion as well. Some Problems of Exclusion : Fourth 1 B 3 1. M ----------------------------------- Husband Son 2 D 1 4 Here the husband is deprived from his half share by the children. His share would have been one half, if there were no children. This is a partial deprivation. Eighth 1 Half 4 B 3 2. M ------------------------------------------ Wife Daughter Fullstr 8 Here the wife is pushed from one fourth to one eighth in her share by the daughter. Here also we witness a partly deprivation of the share. Sixth 1 Two-thirds 4 B 2 3. M -------------------------------------------- Mother Two Fullstrs HuncleF 6 In this problem the mother is deprived from half of her share and pushed from one third to one sixth. Sixth 1 Half 3 Sixth 1 Sixth 1 4. M --------------------------------------------------- Mother of F Daughter Son's D Gf 6 Here the daughter of the son has been deprived from her potential share of half by the daughter. Sixth 1 Sixth 1 Half 3 B 1 5. M --------------------------------------------------- Grandmother HstrF Daughter HuncleF 6 Here the halfsister on the father's line lost her five-sixth shares because of the existence of a full sister. Half 1 B 1 T 6. M --------------------------------------------- Husband Father Grandfather 2 Here the grandfather was excluded by the father. This is a full exclusion. Fourth 1 B 3 T 7. M ---------------------------------------- Husband Son Son's son 4 In this problem the son's son is totally deprived from his potential share by the son of the deceased. Sixth 1 B 5 T T 8. M ----------------------------------------- Mother Father HbrM HbrF 6 Here two half brothers are totally excluded from any share by the father, but at the same time they pushed the mother from one third to one sixth. C h a p t e r Numerics of Inheritance Law Numbers, fractions of them, multiplication, division, addition and substraction play a great role in the process of shares of the inheritants and give each heir a share in a whole number.As a principle no fraction is left unprocessed,In other words,the denominator has to be a number from which all heirs get their shares inwhole numbers. Therefore, if it is needed, the denominator has to be raised to the nearest number which accomodates this need. As a matter of fact, we process the shares, sort out, and give the shares to their respective owners. That kind of payoff action ends the process. About the detailed informantion on the numerics one is advised to refer to al-Sarakhsi's " al-Mabsut ", vol. XXIX, pp.200. Let us examine the subject further according to the technique which is specific to this area of study. Denominator ( al-Makhraj ) : The denominator is a number on which the whole estate is divided and from which the heirs get their shares in whole numbers. This is called " Makhraj of the Problem ". " Makhraj " is grammatically from the morphological point of Arabic, sigha of ism al-makan, al-zaman and masdar al-mimi which means " the place of exit, the time of going out and going " respectively. Some suitable techniques are practically important, for finding the mumbers which are necessary for the process. The application of those techniques with proper process are also basics in this field. As we have studied earlier, the twelve heirs have globally six shares which are divided into two: The first group is half, one fourth and one eighth. The second group is two-thirds,one-thirdandone sixth. Butthedenominators ( makhrajs ) of these six are seven : Two, Three, four, six, eight, twelve and twenty-four. As we see each group is divisible by the smallest number among them and each one of the great numbers are doubles of the smallest number in the same group. There is only one exception here, that is, the 2 from the first group. If there is one half or two halves as share/s in the problem, the denomitnator has to be two. If there are one fourth or half and one fourth in the problem, then the denominator has to be only four. If there is/are only one eighth or one eighth and one fourth, or one eighth and one half, or one eighth, one fourth and one hal,f the denominator iseight. As for the second group,if two-thirds, or just one third, or both of them together are there, then the denominator will be only three. Everyone will get his share out of it. But if one or two of them meet with one sixth, or there is only one or two sixths in the problem, the denominator will be six. If there is one third of the remainder, then the denominator will be the third of the remaining part after all other fixed share holders receive their own shares. These are the workable rules when nothing from one group mixes with the other group. Now we will deal with the problems where the group mixes with each other in varying forms: If half of the first group mingles with some or all ofthe shares of the second group, the denominator will be six. If one fourth or one fourth together with a half mixes with some or all of the second group shares, the problem will be set up with twelve as the denominator. If one eighth or one eighth and one fourth or one eighth and a half meet some or all of the shares in the second group, the denominator has to be twenty-four. The possible process of this mixture may reach fourty-nine compositions in number, of which only twenty-nine of them are practical. The others do not work. One may refer to the tables produced by the scholars of the past in this regard. Our goal here is to find the smallest number from which each share will be extracted as a whole number with no fraction whatsoever. Here what we saw were simple problems in which the additional total of shares are equal to the denominator. But there are cases where the total is short or jumps up above the denominator. The one, which is equal, is called "adilah", the one which is short is named as " raddiyyah " ( al-Sarakhsi names it alqasirah ) and the one which is more is qualified as " awliyyah ". Adilah problems are clear and all the problems recorded before, fall in this group. Special Cases of denominators : A) Awl : This is the case where the additional total of shares ( i.e. numerators ) taken from a denominator exceeds the denominatorial number,in otherwords the denominator becomes short in covering all of the shares. In this situation the additional total becomes the denominator, the original denominatorial number is to be abandoned. This technique was used the first time by Umar b. al-Khattab, the Second Caliph, according to a report of Ibn Abbas, may Allah be pleased with them all. The differences among the early schools of thought and the al-Kufah way of understanding may be checked from the sources, especially al-Mabsut of al-Sarakhsi (vol.XXIX, pp. 160-164). An exercise of Aliyyah Problems : Half 3 Two-thirds 4 1. M ----------------------------------- Husband Two HstrsF 6 7 Awliyyah Here the numerators taken out of the denominator are six, as shares total to 7. So six is to be abandoned for7. And the estate is to be divided into 7, not 6. Half 3 Sixth 1 Two-thirds 4 2. M --------------------------------------------- Husband Mother Two Fullstrs 6 8 Awliyyah Half 3 Sixth 1 Sixth 1 Two-thirds 4 3. M ------------------------------------------------- Husband Mother Gmother Two FullStrs 6 9 Awliyyah Half 3 Sixth 1 Two-thirds 4 Third 2 4. M ---------------------------------------------------- Husband Mother Two HstrsF Two HstrsM 6 10 Awliayyah Fourth 3 Sixth 2 Half 6 Sixth 2 5. M --------------------------------------------- Wife Mother HstrF HbrF 12 13 Awliyyah Fourth 3 Two-tirds 8 Third 4 6. M -------------------------------------------- Wife Fullstrs Tw0 HstrsM 12 15 Awliyyah Fourth 3 Sixth 2 Two-thirds 8 Third 4 7. M ------------------------------------------------- Wife Gmother Two HstrsF Two HstrsM 12 17 Awl. Eighth 3 Two-thirds 16 Sixth 4 Sixth 4 8. M ------------------------------------------------- Wife Two Ibniyyahs Mother Father 24 27 Awl. Fourth 3 Sixth 4 Two-thirds 8 Third 4 T Kafir 9. M --------------------------------------------------- Wife Mother Two Full strs Two HstrsM Son 12 17 Aw Here, according to the Hanafites, the disbeliver son does not affect the mother's share. But according to Abd Allah b. Mas'ud, he causes the share to be lessened to one eighth, in that position the problem's denominator starts first with 24, and finally jumps up to 31. Needless to say the greater the denominator gets, the thinner and lesser the shares are. Awl is always like that. The following raddiyyah technique functions just the opposite. The shares in raddiyyah get thicker and greater. Let us examine further where denominators can be qualified as awliyyahs, in cases, where there is a need to do that. The denominators which are functioning in this field are seven : Four of them do not get increased at all, so in no way do they become awliyyahs. These are two, three, four and eight. There is no way that these four makhrajs form an awliyyah problem. Only four out of the seven get increased and set problems of awliyyahs. Here they are: a) Six :This gets increased up to ten in odd numbers as wellas even numbers. b) Twelve : That may rise up to seventeen in odd numbers, not in even numbers. c) Twenty-four : This increases up to twnety-seven only in one problem which is called " al-Minbariyyah " . " Minbar " means the special podium in the mosque used by the leader oftheprayer during the Jum'a sermon. The imam stands on it and gives his weekly Khutbah to the audience as a part of the prayer. The problem is named after that, because Ali, the fourth caliph was asked that problem when he was standing on a minbar in the city of Kufah/Iraq. He answered the questionimmediately and the audience was surprised at his brilliance. Here is the problem : Wife, two daughters and two parents. No awl is practically workable beyond this number,except in the view of Abd Allah b. Mas`ud. The denominator in his view is set up at 31 by the problem of a wife, mother,two full sisters, two half sisters on the mother's side and a kafir (disbeliever ) son. This was charted earlier. B) Raddiyyah : Radiyyah means giving back,returning what is due to the entitled person. As a matter of fact the shares in raddiyyah, contrary to the awliyyah issues, get thicker and bigger. But the denominator gets smaller, just the opposite of the awliyyah. Please refer as a source to : al-Mabsut by al- Sarakhsi, vol. XXIX, pp. 192 and so on. In raddiyyah problems, some part of the estate gets unowned and it has to be arranged in a way that enables us to increase the shares of some of the heirs who have fixed shares, except the husband and wife, at the ratios of their shares. Theremaining part of the shares are to be distributed and dispensed by the proper technique. It is obvious that in raddiyyahs there are no asabah heirs. If there were any, they would have taken the rest and there would be no need in furthering the process by the raddiyyah technique. This raddiyyah technique is the view of the general public of the Companions of the Prophet, pbuh. That is what the hanafites adopted. But Zaid b. Thabit viewed that the surplus and the rest of the estate have to go to the state treasure of the Islamic state. Malik and al-Shafi`i follow this latter point of view in their schools of thought. But even some of the Shafi`ite jurists are of the opinion of increasing the shares of the heirs, in case of the lack of the Islamic State treasure. The Companions like Ibn Abbas and Uthman, are among the ones who expanded or contracted the application of the raddiyyah technique. The raddiyyah problems maybe dealtwith in the followingfour subtitles : a) If there is one heir whose share may get increased,not one of the persons to whom nothing can be returned exists as an heir.The spouses get nothing from this process. They are not eligible to get any more than what they have as the fixed shares. In this case the denominator is to be the count of the head or heads ifthere are more than one, but sharing the same fixed portion of the estate. Here are some examples to illustrate the subject: 1 1. M ------------------- Mother 1 1 1 2. M --------------------------- Daughter Daughter 2 5 3. M ---------------------------- Five full strs 5 10 4. M ------------------------------------ Ten half brothers of M's side 10 Here in all of these cases the denominator is taken from the count of the heirs. That much is suitable to solve the problem. b) The second group of cases is where there is no one to whom anything more can be given and the ones who get more are in more than one category. In this group the denominator is to be extracted from the additional total of the shares of the existing heirs. That whole number will satisfy all the heirs and each one will get thicker shares than his supposed portion. Some examples : Sixth 1 Sixth 1 1. M -------------------------------- Gmother HstrM 6 2 Radd Here the problem is established by 6, then it is rendered and decreased to 2. So the shares got thicker and nothing was left. Third of whole 2 Sixth 1 2. M ---------------------------------- Mother HstrM 6 3 Radd Sixth 1 Half 3 3. M ---------------------------------- Mother Son's D 6 4 Radd Sixth 1 Two-thirds 4 4. M ---------------------------------- Mother Two HstrsF 6 4 Radd Sixth 1 Two-thirds 4 5. M ---------------------------------- Mother 16 HbrsF 6 5 Radd 4 multiplied ------ 20 In this problem a further process is observed to fit the four to 16. Since 16 is the multiple of 4, therefore it is multiplied by the latter, so that the denominator may accomodate the necessary increase of the shares. Half 3 Sixth 1 Sixth 1 6. M -------------------------------------------- Daughter Four Son's Ds Three Gms 5 Radd 36 12 12 12 ------ 60 Here the denominator was 5 first, because of the count of shares of the same type. Then the numerators ofthe daughters and grandmothers were not divisible to the owners. But the multiplication of both gave us the number 12 which has to be usedasthe multiplierofthe original denominator and of each numerator of 5 to find the lowest multiple of the 5 which may accomodate all the shares. c) The third group is the mixture of the first group with one of the spouses ( i.e. the ones to whom nothing more can be given ).In this case, the lowest denominator which accomodates the share of the spouse is to be taken first. If theremaining part covers the total of the other shares with no fraction left to be further processed,that is good. For example, the problem of a husbandand three daughters. The denominator here is four, one fourth is the share of the husband, the rest goes to the daughters, one to each. But if the rest does not cover all, then the lowest common factor ( that is wafq in this field ), if there is any, of the count of heads is to be the multiplier of the denominator, of whichthe numerators are taken out.But in this case there is no common factor between the two, then the total number of the count of heads is to be the multiplier of the denominator and the numerators. So the denominator gets multiplied to reach the lowest common multiple ofg it. Everyone will get a whole number as a share of the inheritance. Here are a few examples with a little explanation : Fourth 1 Two-thirds 3 1. M --------------------------------------- Husband Three daughters 4 Here the rest, that is 3, after the substraction of the share of the husband from 4 ( denominator ), covers the whole share of the three daughters. No further process is needed. Fourth 1 Two-thirds 3 2. M ---------------------------------------- Husband Six daughters 4 2 6 2 L.common factor ------ 8 Fourth 1 Two-thirds 3 3. M ---------------------------------------- Husband Five dughters 4 5 25 5 ----- 20 Here there is no lowest common factor between five, the count ofthe heads, and their share numerator, which is 3.So the multiplier is the number which counts heads. d) The fourth group is the problem where the second group meets with one of the spouses. Here are a few points similar to what have been given in earlier groups : Divide what remains after the substraction of the share of the spouse to the assumed denominator independently thought for the rest of the heirs. If this solves the problem, fine. This practically happens only in one position. That is where the wife/wives has/have one fourth. For example, the case of a wife, four grandmothers and six halfsisters onthe side of the mother. If the rest does not cover the assumed denominator, then one may multiply the denominator and the numerators taken thereof by the assumed denominator. Here are a few examples to clarify the cases in practical ways and to suggest their solutions : Fourth 1 Sixth 1 Third 2 1. M ------------------------------------------- Wife 12 Four Gms 12 Six HstrsM 4 12 ------- 48 Here the rest of the 4 after the subtarction of the wife's share covers the assumed denominator for the rest,that is 3.But the shares taken from this 3 are not divisible to the counts of the heads of the rest. 12 is the lowest common multiple of the two numbers to be processed. That is used as the multiplier for the original denominator and the shares taken out of it. A more compound example, but based on the same process, follows : Eighth 1 Two-thirds 4 Sixth 1 2. M ----------------------------------------------- Four wives Nine daughters Six Gms 8 5 28 7 5 180 1008 252 ------ 40 36 ------- 1440 C) The Relations Among Numbers : Now,it is time to deal with some special concepts of numerics in the field of Inheritance Law in Islam. We will be dealing with some of the problems below for a further specialized process of the shares of the heirs. There are four concepts which take place among numbers asthey are compared with each other. The four terms and concepts are a) Tamathul, b) Tadakhul, c) Tawafuq and d) Tabayun. These concepts are very well understood and applied by Muslimscholars along the line of Islamic History. Therefore, they are signs of importance of, if not original contributions to, mathematical sciences and the ideas valued in the History ofIslam. Let us examine them in their respective and traditional setup a little more in detail. Let us always keep in mind that the subjecthere is a relation among two or more numbers.We are not dealing with one number, or one numerical item, or expression. a) Tamathul ( Equivalency ) : The root form of " Tamathul " is " mthl " which means" like, being equavalent and equal to ". The structure of the term " tamathul " in Arabic morphology contains " mutuality and reciprocity among more than one concept".Therefore, the idea of involvement of two or more concepts is inherent in the concept. What is meant here is, the fact that two or more certain numbers are literally equvalent and the same. Forexample the relation between 3 and 3, or 7 to 7, or 9 to 9, and 12 to 12. How to understand is not a big deal. One may divide one of them into the other (i.e. the number is divided into itself) the quotient will be 1. That means the relation is just " tamathul ". b) Tadakhul ( Being power of .. ) : Here there are defintely two or more numbers. The word grammatically stemsfrom " dkhl " which means " entering, being a part of". Reciprocity is present here too.But the numbers are different from one another. One is smaler than the other. The smaller one, when multipled, gets the bigger one. In other words, the bigger one is double, or triple, or quadruple the smaller number. So the greater number is " the power of the smaller" and it is the multiple of the smaller. Themethod oftesting in the traditionalwayis like this : The smaller number is subtracted from the bigger number, one keeps doing it untill he reaches 0. No other number remains. Or one may divide the bigger number to the smaller one, the quotient is to be found just zero. One may also keep adding the smaller number to itself until it catches the bigger number. The last method of expressing the relation is the statement that the smaller number is a perfect divisor of the bigger number.The relations between 2 and 6 or 3 and 9 are " tadakhul ". c) Tawafuq ( Having the Lowest common dividing factor ) : Here also are two or more numbers. But they do not have the previously mentioned relations. Nevertheless, both have a common divisive factor which may divide them. This common third element is a factor on which both of dividends are to be divided, each one of the remainders are called " wafq " of that number. So they have the ratio of that wafq between them. The remainder has to be greater than 1.In other words, if the product is 1, then the relation cannot be " tawafuq ". If the remainder is 3, then the tawafuq ratio is one third , that means each one is divisible to 3 and if the remainder is 4, then they share a common feature of having one fourths in common. For example the relation betwixt 8 and 20. The lowest common factor is 4; the number 4 can divide both of them. So they correspond propotionately to each other in their one fourths. One fourth of 8 is 2, that is its wafq ( corresponding propotionate number ) and one fourth of 20 is 5, which means its wafq is 5. If the number is two digits, then the correspondence ( I mean wafq ) is in one part of that number. If the number is 15, the two numbers' wafq is one part out of the 15. d) Tabayun ( Being prime numbers ) : Here two or more numbers have no previous ratios or relations with each other. The two are not equal to each other, the bigger one is not the power of the smaller and the two do not have any common divisive factor. Then we have " tabayun ". That means literally " opposing each other, departing from each other, not having common and cooperative ties with each other ".For example the relation between 9 and 10 is tabayun. D) al- Tashih ( TheDetailedProcessoftheDenominatorand Numerators ) A detailing method is incumbent here to simplify and to extend the numbersofsharesandthe problem itself. This is called " Tashih " of the problem. By this process everyone will be able to get his share out of the lowest common multiple ( that is the denominator ) without leaving any fraction of the remainder. Here we have to consider seven different principal positions, of which (I) three of them are related with the shares ( sahms ) and their owners and(II)four are things among the heads ( i.e. persons themselves ). Let us study these positions in detail. I) The rules among the shares and their owners : a. If the shares totally cover their owners and they are fully divisible to them, no further process is needed. For example the problem of two parents and two daughters. The denominator will be established with 6, of which 2 will go to the parents, 1 to each and two-thirds, that is 4, will go to two daughters, each one will get 2. b. If the shares are not divisible to their owners, but there is muwafaqah ( tawafuq and correspondence of ratios ) betweenthem, so the wafq of the count of heads ( that is owners ) is to be multiplied by the denominator, or its awlaiyyah number, if itis under awliyyah process.For example, a problem of two parents, ten daughters, or husband, two parents and six daughters. c. If the shares are not divisible and there is no wafq ( lowest common factor ) between them, then the count of the heads is to be multiplied by the denominator. II) The rules among the heads of the shares : a. If the shares of two or more groups are indivisible, but the numbers are equal to each other ( mumathalah and tamathul ), then only one of them is to be taken and multipliedby the denominator. An example follows : Six daughters, three grandmothers and three uncles. b. If some of the numbers are powers of the rest ( tadakhul ), in this case the greater number is to be the multiplier to multiply the denominator. Here is the examplery problem : Four wives, three grandmothers and twelve uncles. c. If there is a lowest common factor which divides the numbers, then the wafq of one will be multiplied with the next, then the wafq of the product will be multiplied by the third, then the same process will work in the fourth and at the end the last product will be finally multiplied by the denominator. An example follows : Four wives, eighteen daughters, fifteen grandmothers and six uncles. d. If there are no previous ratios among the numbers whichmeans there is a mubayanah ( tabayun ) relation, then one of them is to be multiplied by the next, the product by the third, the product by the fourth and finally the gross product is to be multiplied by the original denominator. This is the example : Two wives, six grandmothers, ten daughters and seven uncles. At that final process the multiplier in all those seven cases are to bemultiplied by the numerators of the original denominator,so that will give us the share of each group or heir enlarged and adjusted to fit the heads and so it becomes divisibleto the owners of the shares. This is the ultimate goal in this field. C h a p t e r ( Miscellaneous ) Creditors, Agreed Exit from Inheritance, Decreasing the Share of Grandfather, Munasakhah, Hermaphrodite, Fetus, Lost Person, Apostate, Captive, Drowned and Burnt Ones Together. These are special cases and positions which are to be considered in their perspective context. Some other techniques are to be applied to develop a working process and transfer or preserve the shares for the persons who are entitled to them. We will see in the following pages some details related to those specific cases of inheritants. A. Creditors : In this case we assume that there are some creditors who want to share the estate with the inheritors at the same time. We need some further notes for proper process of the estate among them. Here we are to multiply the share of each inheritor from the last denominator by the whole estate ( that is the denominator ) and then divide the product by the denominator. This is the case if there is no ratio relation among them. Otherwise, the wafq will be the multiplier, if there is wafq between tashih and estate numbers. Then the product will be divided by the wafq of tashih, and the quotient will be the share of that specific heir. If one is eager to know the share of a set of the inheritors, the total of heirs is to be treated as one expression and used as a multiplier. The credits of each creditor is to be considered as a share of inheritor and the total of the credits is to be taken as tashih. The other process will stay as it is in previous paragraphs. Let us elaborate ton he subject by some problems: Half 3 Sixth 1 Two-thirds 4 1. M ---------------------------------------- Husband Mother Two Fullstrs 6 8 Awliyyah We are supposing the estate as 25. How to divide that amount to the denominator of the problem? The relation betwix 8 and 25 is of a conflictingtype (mubayanah). So we multiply 25 by each numerator to find the last stage of the shares alloted to each heir. Any modern technique can also be used. 2. The deceased owes to Zaid 10 and to Amr 5 as credit. And the estate is just 9. 10 Credit Unit 5 Credit unit M ----------------------------------- Estate 9 Zaid Amr 15 The relation between the denominator and estate is a tawafuq, they have a common wafq ( lowest common factor ). The wafq is by the third. The wafq of the denominator is 5 and the wafq of the estate is 3. Each share ( numerator ) is to be multiplied by the wafq of the estate,i.e. 3. Then the product is to be divided to the wafq of the estate,i.e. 5. Zaid will have 30:5=6 and Amr 15:5=3. The total will be 9 which is equal to the estate. B. Agreed Exit from inheritance ( Takharuj ) : Here some of the inheritors agreeably leave the right of inheritance by taking away somthing. The issue here is how to place the rest of the shares in the process of the problem? The share of an inheritor who gets the consent of other heirs and exits from the inheritance is to be substracted from the Tashih form of denominator,then the rest of the estate has to be divided upon the shares of the remaining heirs. For example, a problem of a husband, motherand one uncle. Let us suppose that the husband gets out against his duty of dowry. Then the rest of the estate, i.e. what is left after the subtraction of dowry, has to be divided between mother and uncle as 3 units, of which 2 goes to the mother and 1 to the uncle, a division proportionated to their original shares. C. Decreasing the Share of Grandfather ( Muqasamah ) : Muqasamah isa wayof decresing the shareofa real grandfather according to the view of Abu Yusuf and Muhammad, the two imams of the Hanafite Madhhab, contrary to the opinion of Abu Hanifah himself. Abu Bakr al-Siddique, Ibn Abbas, Ibn Zubair, Ibn Umar, Hudhaifah b. al-Yaman, Abu Sa`id al-Khudri, Mu`adh b. Jabal, Aisha , Abu Musa al-Ash`ari and many others have the opinion of excluding brothers and sisters, full or half on the father's side, in case the real grandfather is among the inheritors, as is the situation when the father is inheritor. Abu Hanifah, Shuraih, Ata', Urwah b. al-Zubair, Umar b. Abd al-Azizi,al-Hasan and Ibn Sirin are also of the same opinion. This is based on fatwa. But Ali, Ibn Mas`ud, Zaid b. Thabit, and the two Hanfite imams, Imam Malik and Imam al-Shafi`i are of just the opposite opinion. Thereis nodispute about the exclusion of the halfbrothers and sisters on the mother's side, if there is a real grandfather. According to Zaid b. Thabit the real grandfather who meets the full or half brothers and sisters on the father's side, has the optionof getting the best of muqasamah or one third of the whole estate. Muqasamah means to consider the real grandfater as one of the brothers and give him a share as if he is a brother, getting twice ofthe female share. The halfbrothers and sisters on the father's side get present together with the full brothers and sisters, and harm the real grandfather by decreasing his share tothelesser amount. But they get nothing, all the rest goes to thefull brothers and sisters. This has one exception. That is if there is one full sister. In this case the sister will get halfof the remainder after the share of the real grandfather,if anything is left, that will go to the half brothers and sisters on the father's side. Otherwise nothing will go to them. For example the case when there is a real grandfather, one full sister and two halfsisters on the father's side. At the end the two sisters can save one tenth of the estate and the denominator of the problem will be 20. If there were halfsisterson the father's side only, she would have nothing. If another fixed shared inheritant meets the real grandfather and the full and halfbrothers and sisters on the father's side, then the grandfather in this stage will have the opportunity of choosing the best out of the three options. That is either the muqasamah will be the best, as is the case in the husband, the real grandfather and one brother, or the best will be one third of the remaining part of the estate, as is the state in the problem of one real grandfather, one grandmother, one sister and two brothers,or finallythe sixth of the whole estate is to be preferred, as is the case in the problem of one real grandfather, one grandmother, one daughter and two brothers. If the third of the remaining part of the estate is the best for the real grandfather, the remainder does not have a whole one third, then multiply the denominator by the number from which one third is to be taken out. If the deceased leaves one grandfather, husband, one daughter, mother and one sister, then one sixth is the best share for the grandfather. The problem gets enlarged to 13 as awliyyah. The sister will get nothing. There is only one important point to keep in mind : That is Zaid b. Thabit does not make a full or half sister on the father's sideto have a fixed share if she is with a real grandfather with one exception, which is the problem of al-Akdariyyah which is comprised of a husband, mother,grandfather and one full or half sister on the father's side. The husband will have half, the mother one third, grandfather one sixth and the sister a half. Then the share of the grandfather and sister will be added to each other and after that they will share the total according to the rule of twice of the female`s share to the grandfather. Because muqasamah is the best for the grandfather. The denominator will begin by 6, then will jump to 9 as awliyyah. But finally the tashih level will end up with 27. This problem is called " Akdariyyah ", because it originally stems from a lady of the tribe of Bani Akdar. If there was one brother or two sisters instead of one sister in the problem,there would be neither awliyyah issue, nor Akdariyyah problem. Here are some examples of Muqasamah problems : a) Grandfather = Two sisters 2 Half 2 1/2 B 1/2 1. M ---------------------------------------------- Grandfather Full sister Two HstrsF 5 4 5 1 2 8 10 2 ---- 24 30 6 10 2 ------- 20 3 ------ 60 b) Grandfather gets 1/3 Third 1 Half 1 1/2 1/2 M --------------------------------------------- Gfather Full sist. Two HstrsF 3 2 3 1 2 4 6 2 ---- 20 30 10 6 2 ----- 12 5 ------ 60 The denominator of the first and the denominator of the second problem have a tawafuq in one fourth between them. So we multiply the first denominator and all numerators thereof by the wafq, that is 5, of the second and also multiply the second denominator and all the numerators thereof by the wafq ( i.e. 3 ) of the first. This is to equalize the two denominators and to make the two shares of the grandfather comparable. So that one may choose which one is the better. As we see his share from the first is 24, which is greater than his share ( that is just 20 ) from the second. If we had structured the two previous problems with one halfsister on the father's side instead of having two, the shares of the grandfather from the two would have been been 6 and 4 at the end of tashih based on the tawafuq relation in one sixth, the denominatorin both being raised to 12. Here also the preferred share for the grandfather is the share of two sisters. Carryingonthe same logic if we have two orthree halfdaughters on the father's side instead of one half daughter, and process the two problems by the same technique followed before, the two alternative shares in both of the problems would not change. The same process may be applied to further situation in the cases where the grandfather has more than two options. 2. Akdariyyah Problem : Half 3 Third of whole 2 Sixth 1 Half 3 M ---------------------------------------------------- Husband Mother Gfather Full sitr 6 9 6 8 4 9 Awliyya 3 ----- 27 Here the share of the grandfather is based on an addition. Half 3 Sixth 1 Sixth 1 B 1 M ------------------------------------------------------ Husband Mother Gfather Two full strs. 6 6 2 2 2 2 ---- 12 No Awl and no Akdariyyah problem in the next situation : Half 3 Third 2 Sixth 2 B Ziro M ------------------------------------------------ Husband Mother Gfather Hlaf brF 6 D. Carrying undivided shares down the line ( Munasakhah ) : The word " munasakhah " here comes from the root " nasakha " which means " to transfer " and " to change ". As a term it denotes the transfer of undivided shares from one generation to the next, perhaps, three or fourtimes down the line.So the original problem is structured and functioned in a developed way that finally accomodates the shares of all heirs in different generations. The principal method here is to fix the problem first with its tashih properly . Then fix the second problem after the first death. Here we look at the relation between the share ( that is called ma fi 'l-yad ) of the second deceased from the first problem and the denominator of his own problem. If the relation is istiqamah, i.e. equality, fine. We multiply, vice versa, if there is wafq, by it, if there is mubayanah on the whole, and process theproblem further in the next positions.If there are third, fourth, fifth, and so on and so forth deaths, the problems are to be fixed after one another and developed like that; always carrying the development to the earlier problems and enlarging them equally by the same number. ( Comp. al-Mabsut, XX, pp. 55-60 ). Let us simply apply this technique to the problems set up below : Eighth 3 Sixth 4 B a q i 17 M ---------------------------------------------- Wife Mother Son 34 Son 24 Hind Gulthum Amr Bakr 2 6 8 17 17 ------ 68 68 48 4 ------- 192 Gulthum died and her share ( ma fi 'l-yad ) is 8. Fourth 1 B a q i 3 M ---------------------------------------------------- Husband Son's son 6 Son's son 4 Khalid Amr 3 Bakr 3 2 ------ 8 The relation between ma fi 'l-yad and the denominator here is istiqamah ( equality ). Hind died and her share from the first problem is 6. Fourth 1 B a q i 3 M --------------------------------------------------- Husband Son 6 Son 4 Walid 2 Amr 3 Bakr 3 2 6 9 9 ----- 8 The relation between 8 ( denominator ) and 6 ( ma fi 'l-yad ) is tawafuq in having half ( lowest common factor - 2 ). Therefore the first problem and all numerators thereof are multilplied by the wafq, which is 4, of the last denominator, and vice versa. If we add all the shares for each inheritor, we come up with this : Amr 89, Bakr 89, Khalid 8 and Walid 6. The total is 192. E. Hermaphrodites ( al-Khuntha ) : Here the subject is a person who has male and female organs,none of them having a dominant character. Both of the genders are at the same level. This last concept is expressed in Arabic as " al-Khuntha al-Mushkil ". So it is difficult to decide whether this type of person has to get male share or female share. Any one whose gender has already been cleared up, by a medical treatment or operation etc. he/she is accepted as having that gender. We do not have any problem regarding tothis situation. The inheritors who can be hermaphrodite are six : A child, a son's child, a brother and his child, uncle and his child. Of course, the spouses, parents and grandparents cannot be in this category at all. There is a difference of view in the first three. The last three will not get any thing if they are women. According to Abu Hanifah the last three are to be considered as women. Hermaphrodite willget the lesser of the two shares( male and female ). This is the view of the majority of the Companions. The religious fatwa is to be based on this view. For example in a problem of one son, one daughter and one hermaphrodite, the latter will get the share of a daughter. That is the amount she may get for sure. But according to Amir al-Sha`bi and Ibn Abbas a hermaphrodite will get half of the two uncertain shares combined. AbuYusuf and Imam Muhammad have different opinions regarding the report of this last view.Abu Yusuf is of the opinion that the son will get one share and the daughter half of a share and the hermaphrodite three-fourths of a share,because Khuntha gets one share as the son does and half as the daughter does. This is for sure. So his/her share is just half of both. In other words, half of the share which is for sure together with half which is debatable. So it covers three-fourths. Abu Yusuf counts on the shares and awliyyah process.The problem can be structured by 9 as the denominator. Imam Muhammd thinks this way : Hermaphrodite gets two-fifths of the estate, assuming him as male, and one fourth assuming her as female, then he/she has to receive half of these two shares which is one fifth and one eighth. The denominator will be forty processed under the previously explained method of checking the the relations between the two denominators ( 4 and 5 ) and numerators thereof. One may refer to the following authentic source in English : Charles Hamilton, The Hedaya, Delhi 1982, pp. 704-707. Also : al-Sarakhsi, al-Mabsut, XXX, pp. 91-114. F. Fetus : Here theright of inheritance of an unborn child is to be considered. Therefore, thepregnancy period is to be discussed. The rule is to keep the inheritance of the fetus who was conceived Islamically at the time of occurance of death. So that it is admitted as blood relation. The maximum period of pregnancy is two years according to Abu Hanifah. But Laith b.Sa`d extends it to cover three years. Imam sl-Shafi`i goes up to four years.al-Zuhri even covers seven years with pregnancy. The minimum level of the pregnancy is six months as unanimously accepted. Soa child who is born after the maximum or beforethe minimum period cannot be accepted as having blood relation to the deceased and he/she will have no right to inheritance. This is a medico-islamico subject which may need the help of modern medical development. According to Abu Hanifah the greatest amount of the shares of four boys or girls is to be preserved; the rest of the inheritants willget the lesser of their shares. According to Muhammad the share of the three boys or girls is to be stored back. There is another view reported from Imam Muhammad, a view which is shared by Abu Yusuf as well, that the share of two boys or girls is to be preserved. al-Khassaf reports from Abu Yusuf that the greater one of the two shares of one boy and one girl is to be stored for the fetus. If the pregnancy was caused by the deceased and the child was born in the six month period,not more than that,and the woman who gavebirth to the baby did not acknowledge the expiration of the menstruation period, the baby will inherit and the others also may inherit from the baby. But if the baby is born after the maximumperiodof pregnancy, he/she will inherit nothing. If the pregnancy is from the relatives (i.e. the mother is not the wifeof the deceased ) and the baby is born inthe six month period or less than that, he inherits, if he is born after the minimum period, he/she will not inherit. There is some more information about the birth here : If the lesser part of the body of the baby departed from the mother's body, then he/she died, he/she does not inherit; otherwise it inerits. If the birth was normal,i.e. head first, then the rest of the body,the dividing line of criterium is the breast ( sadr ). If the whole of the breast was out, the baby being alive, then he/she is going to inherit. But if the birth is just opposite way, the dividing point is the navel. The baby has to be born alive, even for a second, in order to inherit. The procedure of calculation in this topic is to set up two different problems,one assuming the baby is a boy and another one assumingit to be a girl. One needs to examine the tashihs of the two problems in terms of tawafuq and tabayun to equlaize the denominators and the numerators thereof in both problems, so that we may compare the two possible shares of the fetus and other inheritants in equal conditions. Each inheritor will have two shares, one is less than the other, when theyarecompared. So each one will be given the least one, the difference between the two will be preserved for the future. When the baby is born, if he/she is eligible to receive all of what is preserved, fine. But if it receives some part of it, then he/she gets that much and the rest will given back to other inheraitants, each one receiving what is kept out of his/her share previously processed. Here is an example : One daughter, parents and a wife who is pregnant. The problem will be set up on 24 assuming the baby is a boy. But the denominator will be 27 in case the fetus is a girl. When the wafqs of each other is multiplied, the problem expands up to 216. Assuming that the fetus is boy, the wife will get 27; each one of the parents will have 36. But assuming that the baby is a girl, the wife will have 24 and each one of the parents will have 32. Finally the wife will receive 24, and 3 units out of her share will be preserved, 4 units from each of the parents' shares are also to be kept aside. The daughter will have 13 units. The amount which is kept from her share is the share of four boys according to Abu Hanifah. If the babies happen to be four in number, her actual share will be one unit and four-ninths of a unit. This is taken off 24. When this share is multiplied by 9, the share jumps up to 13. That is her share. The rest, i.e. 115, will be preserved. If she gives birth to a baby girl or more than one girl, the preserved units will all go to them. If she gives birth to one or more boy/s, then the wife and two parents will receive all of what is preserved from their shares. The rest will be divided among the children, according to the rule of double share of female to the male. If the fetus is stillborn, the wife and the two parents will get what is kept aside from their shares and the daughter's share will be completed to a half (that is 95 units) and the remaining part which is 9, will be received by the father as being asabah. For detailed information : al-Mabsut, XXX, pp. 50-54. G. A Lost Person ( al-Mafqud ) : If a person is lost and disappaered without any trace or clue for a period of time, what are we going to do with his property and assets? Here a kind of de jure death is to be taken into consideration. Nearly all civil codes have some articles and rules codified in their context. In some of the codes the term " al-ghaib " is used. The subject has its repercussions on marital relations as well. A lost person is considered alive in his property, so no one may inherit from him.His property and wealth, whatever thay are, are to be kept as a trust, until his death is proven or a span of time passes. There are different views about the span of time, we are concerned with in this point. According to a clear dominant view when all the people of his age no longer live, it is to be decided on his death. The Muslim court has to pass a decision in this regard. According to a report made by al-Hasan b. Ziyad from Abu Hanifah, the maximum period of life is 120 years, beginning from his birth. Imam Muhammad says it is 110 and Abu Yusuf states 105 years. Someone said 90 years. But some are of the opinion that it is left to the decision of Imam ( leader and ruler ). A person who is lost is considered as having pending relation ( mawquf ) when the subject concerns others. So any possible share of inheritance he may be entitled is to be kept intact, as is the case in the pregnancy. When the fixed period expires his property and wealth is to be distributed among the living heirs at the time of the decision on his death and theparts which were kept aside will also go to the living heirs at the time of the decision. The procedure of setting up the problems is as it was explained in the the fetus.Two problems are to be set.One according to the assumption that he/she is living and the other one that he/she is dead. ( Comp. al-Sarakhsi, al-Mabsut, XXX, pp. 54-55 ). H. An Apostate ( al-Murtadd ) : It was previously mentioned the impediments of the inheritance and among them was the difference of religion (Islam-nonIslam). Now we have another aspect of the religiousaffectonthe inheritance, that is conversion from Islam to another religion and becoming apostate. If an apostate dies, or gets murdered, or joins with the country of war (Dar al-harb) and further more the Muslim court passes a decision about his joining the country of war,all of what he earned and acquired when he was Muslim will go to his Muslim relatives. And all of his wealth acquired when he was proselytised, will go to the Treasure of the Islamic State. This is according to Abu Hanifah. But two Imams are of the view that the two earnings will go to his Muslim heirs. Imam al-Shafi`i views that both of the earnings have to go to the State Treasure of Islam. All that he acquired after joining the country of war is unanimously considered just booty. The acquisions andearnings of a woman apostate will go to her Muslim heirs with no differences of views in the Hanafite School of thought. As to the inheritance right of an apostate he will not inherit anything, neitherfrom Muslim or apostate deceased. The woman apostate also has the same status.The sole exception of this rule is the case where all of the people of a region apostate entirely. They inherit each other only. al-Sarakhsi, al-Mabsut, XXX, pp. 37-38. I. Captive ( al-Asir ) : A captive may have one of the three different status: a. If he is still Muslim, he will be considered like any other Muslim and inherits from others and others may inherit from him. b. If he is converted away from Islam, his status is like an apostate. c. If the captive's life or death is not known, then he is under the rules of a lost person. The same rules will be applied to him. J. The Ones Who Died ( Drowned, Burnt or Died Wreckage ) Together ( al-Gharqa, al-Harqa and al-Hadma ) : Here we have a situation where the relatives all died together in one incident or accident, for example they were in thesameship which sank, or in the same building which was burnt down etc. The requisite here is that who died first is not known at all. The solution in this case is assuming they all died at the same time and moment. The estate of each one of them will go to his heirs who are alive, none of the dead will inherit each other, because no one knows who died first,then who and then who. Sothe process of carrying the inheritance right from the line to another (munasakhah) is not applicable here. This is the view preferred by Hanafites, Imam Malik, Imam al-Shafi`i. Abu Bakr, Umar and Zaid b. Thabit also are of the same conviction. Ali and Ibn Mas`ud state in one of the views, reported from them, that they inherit from each other everything, except the part they inherit from each other who shared the same destiny. Because that is considered as inheriting his own property, which is not logical at all. ( Comp.al-Sarakhsi, al-Mabsut, XXX, pp.27-30 ). Concluded. Wa Akhiru Da`wana Ani 'l-Hamdu Lillahi Rabbi 'l-Alamin. Our last prayer is praise be to Allah, Who is the Cherisher and Sustainer of the Worlds. B i b l i o g r a p h y Abdurrahim, Muhammadan Jurisprudence, Madras 1911. Abdur Rahman, The Principles of Muhammadan Jurisprudence, Lahore 1958. Ali Haydar, Durar al-Hukkam, Sharh Majallat al-Ahkam, Istanbul 1313. al-Alusi, Mahmud, Ruh al-Ma`ani fi Tafsir al-Qur'an al-Azim wa 'l-Sab` al-Mathani, Bairut 1985. Anderson,J.N.D., Islamic Law in Africa, London 1954. --------, Islamic Law in The Modern World, London 1959. 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