The Religion Of Islam vol.2


  • bookcover

  • The Religion Of Islam vol.2


  • Chapter VI - Inheritance


     
    The law of inheritance is called  ‘I lmil-farâyied, or Ilmil-mirâth’ – i.e. science of obligations of inheritance. The verses in the Koran upon which the law of inheritance is founded begin at the 11th verse of Chapter 4 of the Koran. They are rendered as follows: -

    “With regard to your children, God commands you to give the male the portion of two females, and if they be females more than two, then they shall have two-thirds of that which their father hath left: but if she be an only daughter, she shall have the half; and the father and mother of the deceased shall each of them have a sixth part of what he hath left, if he has a child; but if he has no child, and his parents be his heirs, then his mother shall have the third; and if he has brethren, his mother shall have the sixth, after paying the bequests he shall have bequeathed and his debts. As to your fathers or your children, ye know not which of them is the most advantageous to you. This is the law of God. Verily God is Knowing and Wise.”

     

    “Half of what your wives leave shall be yours if they have no issue; but if they have issue, then a fourth of what they have shall be yours, after paying the bequests and debts.”

     

    “And your wives shall have a fourth part of what ye leave if ye have no issue, but if ye have issue, then they shall have an eighth part of what ye leave, after paying the bequests and debts, if any.”

     

    “If a man or woman makes a distant relation their heir, and he or she has a brother or a sister each of these two shall have a sixth : but if there are more than this, then shall they be sharers in a third after payment of the bequests and debts.”

     

    “Without loss to any one. This is the ordinance of God, and God is Knowing and Gracious.”

     

    The foregoing general rules of inheritance are detailed in the following([1])

     

    The property of a deceased Muslim is applicable, in the first place, to the payment of his funeral expenses; secondly to the discharge of his debts; and thirdly, to the payment of legacies as far as one-third of the residue. The remaining two-thirds with so much of the one-third as is not absorbed by legacies are the patrimony of the heirs. A Muslim is, therefore, disabled from disposing of more than one-third of his property by will. (1)

     

    The clear residue of the state descends to the heirs; and among these the first are persons for whom the law has provided certain specific shares or portions and who are thence denominated the sharers or Za-wul-farûd in Arabic.

     

    In most cases, there must be a residue after the shares have been satisfied; and this passes to another class of persons who, under that circumstance, are termed residuaries or ‘asaba in Arabic.

     

    It can seldom happen that the deceased should have no individual connected with him who would fall under these two classes; but to guard against this possible contingency, the law had provided another class of persons who, by reason of their remote position with respect to the inheritance, have been denominated “distant kindred” Zawul Arhâm in Arabic.

     

    Gifts And Donations

    During his lifetime a Muslim has absolute power over his property. He may dispose of it in whatever way he likes. But such dispositions, in order to be valid and effective, are required to have operation given to them during the lifetime of the owner. If a gift be made, the subject of the gift must be made over to the donee during the lifetime of the donor; he must, in fact, divest himself of all proprietary rights in it and place the donee in possession. To make the operation of the gift dependent upon the donor’s death would invalidate the donations. So also in the case of endowments for charitable or religious purposes. A disposition in favour of a charity, in order to be valid, should be accompanied by the complete divestment of all proprietary right. As regards testamentary dispositions, the power is limited to one-third of the property, provided that it is not in favour of one who is entitled to share in the inheritance. For example, the proprietor may devise by will one-third of his property to a stranger; should the device, however, relate to more than one-third, or should it be in favour of a legal heir, it would be invalid.

     

    Points of Contact

    A Muslim upon his death may leave behind him a numerous body of relations. In the absence of certain determinate rules, it would be extremely difficult to distinguish between the inheriting and the non-inheriting relations. In order to obviate this difficulty and to render it easy to distinguish between the two classes, it is the general rule and one capable of universal application, that when a deceased Muslim leaves behind him two relations, one of whom is connected with him through the other, the former shall not succeed while the intermediate person is alive. For example, if a person on his death leaves behind him a son son’s son, this latter will not succeed to his grandfather’s estate while his father is alive. Again if a person dies leaving behind him a brother’s son and a brother’s grandson and his own daughter’s son, the brother’s son, being a male agnate and nearer to the deceased than the brother’s grandson, takes the inheritance in preference to the others.

    The law of inheritance is a science acknowledged even by Muslim doctors to be an exceedingly difficult object of study.

    Although it is not easy to follow it out in all its intricacies, a carefully drawn table on the Sunni law of inheritance is given hereinafter: -

     

    1. – Legal Heirs And Sharers
    2. Father

    As mere sharer, when there is a son or a son’s son, how low soever, he takes 1/6. As mere residuary, when no successor but himself, he takes the whole: or with a sharer, not a child or son’s child, how low soever, he takes what is left by such sharer. As sharer and residuary, as when there are daughters and son’s daughter but no son or son’s son, he, as sharer, takes 1/6; daughter takes 1/2, or two or more daughters 2/3; son’s daughter 1/6; and father the remainder.

     

    1. True Grandfather

    Father’s father, his father and so forth, into whose line of relationship to the deceased no mother enters, is excluded by father and excludes brothers and sisters; he comes into father’s place when no father; but does not, like father, reduce mother’s share to 1/3 of residue, nor entirely exclude paternal grandmother.

     

    1. Half Brothers by Same Mother

    They take, in the absence of children or son’s descendants and father and true grandfather one 1/6, two or more between them 1/3, being those who benefit by the “return”.

     

    1. Daughters

    When there are no sons, daughters take on 1/2 two or more 2/3 between them; with sons they become residuaries and take each half a son’s share, being in this case of those who benefit by the “return”.

     

    1. Son’s Daughters

    They take as daughters when there is no child; take nothing when there is a son or more daughters than one; take 1/6 when only one daughter; they are made residuaries of male cousin, how low soever.

     

    1. Mother

    The mother takes 1/6 when there is a child or son’s child, how low soever, or two more brothers or sisters of whole or half blood; she takes 1/3 when none of these: when husband or wife and both parents, she takes 1/3 of the remainder after deducing their shares, the residue going to father: if no father but grandfather, she takes 1/3 of the whole.

     

    1. True Grandmother

    Father’s or mother’s mother, how high soever; when no mother, she takes 1/6; ! if more than one, 1/6 between them. Paternal grandmother is excluded by both father and mother; maternal grandmother by mother only.

     

    1. Full Sisters

    These take as daughters when no children, son’s children how low soever, father, true grandfather or full brother; with full brother, they take half share of male; when daughters or son’s daughters, how low soever, but neither sons, nor father, nor true grandfather, nor brothers, the full sisters take as residuaries what remains after daughter or son’s daughter has had her share.

     

    1. Half Sisters by Same Father

    They take as full sisters, when there are none; with one full sister they take 1/6; when two full sisters, they take nothing, unless they have a brother who makes them residuaries and then they take half a male’s share.

     

    1. Half Sisters by Mother only

    When there are no children or son’s children, how low soever, or father or true grandfather, they take one 1/6; two or more 1/3 between them.

     

    1. Husband

    If no child or son’s child, how low soever, he takes ½; otherwise ¼.

     

    1. Wife

    If no child or son’s child how low soever, she takes ¼; if otherwise, 1/8. Several widows share equally.

     

    Corollary 

    All brothers and sisters are excluded by son, son’s son, how low soever, father or true grandfather. Half brothers and sisters on father’s side are excluded by these and also by full brother. Half brothers and sisters on mother’s side are excluded by any child or son’s child, by father and true grandfather.

     

    1. – Residuaries

    I – Residuaries in their own right, being males into whose line of relationship to the deceased no female enters : -

    (a) Descendants : -

    1. Son.
    2. Son’s son.
    3. Son’s son’s son.
    4. Son of No. 3.

    (4a) Son of No. 4.

    (4b) And so on how low soever.

    (b) Ascendants : -

    1. Father.
    2. Father’s father.
    3. Father of No. 6.
    4. Father of No. 7.

    (8a) Father of No. 8.

    (8b) And so on how high soever.

              (c) Collaterals : -

    1.  Full brother.
    2.  Half brother by father.
    3.  Son of No. 9.
    4.  Son of No. 10.

    (11a) Son of No. 11.

    (11a) Son of No. 12.

       (11b) Son of No.11e.

              (12b) Son of No.12a.

    and so on how low soever.

    1.  Full paternal uncle by father.
    2.  Half maternal uncle by father.
    3.  Son of No. 13.
    4.  Son of No. 14.

    (15a) Son of No.15.

    (16a) Son of No.16.

    1.  Father’s full paternal uncle by father’s side.
    2.  Father’s half paternal uncle by father’s side.
    3.  Son of No. 17.
    4.  Son of No. 18.

    (19a) Son of No.19.

    (20a) Son of No.20.

    1.  Grandfather’s full paternal uncle by father’s side.
    2.  Grandfather’s half paternal uncle by father’s side.
    3.  Son of No. 21.
    4.  Son of No. 22.

    (23a) Son of No.23.

    (24a) Son of No.24.

    and so on, how low soever.

     

    Notes: -

    (a)     A nearer residuary in the above table is preferred to and excludes a more remote residuary.

    (b)     Where several residuaries are in the same degree, they take per capita not per stripesi.e. they share equally. The whole blood is preferred to and excludes the half blood at each stage.

     

    II – Residuaries in another’s right, being certain females, who are made residuaries by males parallel to them; but who, in the absence of such males, are only entitled to legal shares. These female residuaries take each half as much as the parallel male who makes them residuaries. The following four persons are made residuaries: - 

    (a)     Daughters made residuary by son.

    (b)     Son’s daughter made residuary by full brother.

    (c)      Full sister made residuary by full brother.

    (d)     Half sister by father made residuary by her brother.

     

    III – Residuaries in their own right, being males into whose line of relationship to the deceased no female enters : -

     

    IV – Residuaries with another, being certain females who become residuaries with other females. These are: -

    (a)     Full sisters with daughters or daughter’s sons.

    (b)     Half sisters with father.

     

    Notes: -

    When there are several residuaries of different or classes, e.g. residuaries in their own right and residuaries with another, propinquity to deceased gives a preference, so that the residuary with another, when nearer to the deceased than the residuary in himself, is the first.

    If there be residuaries and no sharers, the residuaries take all the property.

    If there be sharers and no residuaries, the sharers take all the property by the doctrine of the “return.” Seven persons are entitled to the “return.” 1st. mother; 2nd, grandmother; 3rd, daughter; 4th, son’s daughter; 5th, full sister; 6th, half sister by father; 7th, half brother or sister by mother.

    A posthumous child inherits. There is no presumption as to commorients, who are supposed to die at the same time unless there be proof otherwise.

    If there be neither sharers nor residuaries, the property will go to the following class (distant kindred):

     

    1. – Distant Kindred

    (ALL Relatives who are neither Sharers nor Residuaries)

     

    Class 1.

    Descendants : Children of daughters and son’s daughters:

     

    1. Daughter’s son.
    2. Daughter’s daughter.
    3. Son of No. 1.
    4. Daughter’s of No. 1.
    5. Son of No. 2.
    6. Daughter’s of No. 2 and so how low soever, and whether male or 

       female.

    1. Son’s Daughter’s son.
    2. Son’s Daughter’s daughter.
    3. Son of No. 7.
    4. Daughter of No. 7.
    5. Son of No. 8.
    6. Daughter of No. 8, and so on how low soever and whether male or female.

     

    Notes: -

    (a)  Distant kindred of Class 1 take according to proximity of degree; but when equal in this respect, those who claim through an heir, i.e. sharer or residuary, have a preference over those who claim through one who is not an heir.

    (b)  When the sexes of their ancestors differ, distribution is made having regard to such difference of sex, e.g. daughter of daughter’s son gets a portion double that of son of daughter’s daughter, and when the claimants are equal in degree but different in sex, males take twice as much as females.  

     

    Class 2.

                Ascendants : False grandfathers and false grandmothers.

     

    1. Maternal grandfather.
    2. Father of No. 13, father of No. 14 and so on as high soever (i.e. all false grandfathers).
    3. Maternal grandfather’s mother.
    4. Mother of No. 15 and so on how high soever (i.e. all false grandmothers).

     

    Notes:

    Rules (a) and (b), applicable to Class 1, apply also to Class 2.

         Furthermore, when the sides of relation differ, the claimant by the paternal sides gets twice as much as the claimant by the maternal.

     

    Class 3.

    Parents Descendants :

     

    1. Full brother’s daughter and her descendants.
    2. Full sister’s son.
    3. Full sister’s daughters and their descendants, how low soever.
    4. Daughter of half brother by father, and her descendants.
    5. Son of half sister of father.
    6. Daughter of half sister by father, and her descendants, how low soever.
    7. Son of half brother by mother.
    8. Daughter of half brother by mother, and her descendants, how low soever.
    9. Son of half sister by mother.
    10. Daughter of half sister by mother, and their descendants, how low soever.

     

    Note: -

                Rules (a) and (b), applicable to Class 1, apply also to Class 3.

    Furthermore, when two claimants are equal in respect of proximity, one who claims through a residuary is preferred to one who cannot so claim.

     

    Class 4.

         Descendants of the two grandfathers and the two grandmothers.

    1. Full paternal aunt and her descendants, male or female, and how low soever.
    2. Half paternal aunt and her descendants, male or female, how low soever.
    3. Father’s half brother by mother and his descendants, male or female, how low soever.
    4. Father’s half sister by mother and her descendants, male or female, how low soever.

     

    Note: -    

    The sides of relations being equal, uncles and aunts of the whole blood are preferred to those of the half, and those connected by the same father only, whether males or females, are preferred to those connected by the same mother only. Where sides of relation differ, the claimant by paternal relation gets twice as much as the claimant by maternal relation. Where sides and strength of relation are equal, the male gets twice as much as the female.

     

    General Rule. –  Each of these classes as above mentioned excludes the next following class.

     

    Note: -

    In cases where there are no sharers, residuaries, or distant kindred to claim inheritance, the whole property of the deceased shall be gone over to the Public Treasury, i.e. The State.

     

    [1])) “Al-Sirajiyah” by Sirajud-din Mohammad, based on the Traditions of the Prophet on the subject, as collected by Zaid ibn Thabit, one of the earliest companions. 

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