37. It is reported by Jabir, in the Sahihayn as well as all the other six canonical works, that

عَنْ جَابِرٍ رَضِيَ اللَّهُ عَنْهُ قَالَ عَادَنِي النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَأَبُو بَكْرٍ فِي بَنِي سَلِمَةَ مَاشِيَيْنِ فَوَجَدَنِي النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَا أَعْقِلُ شَيْئًا فَدَعَا بِمَاءٍ فَتَوَضَّأَ مِنْهُ ثُمَّ رَشَّ عَلَيَّ فَأَفَقْتُ فَقُلْتُ مَا تَأْمُرُنِي أَنْ أَصْنَعَ فِي مَالِي يَا رَسُولَ اللَّهِ فَنَزَلَتْ { يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ } صحيح البخاري

“The Prophet and Abu Bakr visited me on foot. I was unconscious. The Prophet asked for water, made ablution and sprinkled water on my face. When I came to myself I asked him: “What shall I do with my property, O Messenger of Allah?" In response these verses were revealed (Qurtubi, Ibn Kathir, Shawkani and others).

38. Note how the importance of the female’s share has been highlighted by making them the basis of calculation: “To the male twice that of the female” (Ma`arif). That is, the male’s share cannot be determined without first assessing the share of the female (Au.). Majid writes: “... the inequality between the share of a son and that of a daughter in the law of Islam is more apparent than real. ‘The share of the daughter is determined not by any inferiority inherent in her but in view of her economic opportunities, and the place she occupies in the social structure of which she is a part and parcel... While the daughter, according to Mohammedan Law, is held to be full owner of property given to her both by the father and the husband at the time of her marriage; while, further, she absolutely owns her dower-money which may be prompt or deferred according to her own choice, and in lieu of which she can hold possession of the whole of her husband’s property till payment, the responsibility of maintaining her throughout her life is wholly thrown on the husband.’ (Dr. Iqbal, Reconstruction of Religious Thought in Islam, pp. 236-237).”

39. Allah has stated the rules for a single female child and above two, but what when they are two? The answer is provided by the Sunnah (Ibn Jarir). Ahmad, Abu Da’ud, Tirmidhi and Ibn Majah have various versions of the following hadith:

عَنْ جَابِرِ بْنِ عَبْدِ اللَّهِ قَالَ جَاءَتْ امْرَأَةُ سَعْدِ بْنِ الرَّبِيعِ بِابْنَتَيْهَا مِنْ سَعْدٍ إِلَى رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَالَتْ يَا رَسُولَ اللَّهِ هَاتَانِ ابْنَتَا سَعْدِ بْنِ الرَّبِيعِ قُتِلَ أَبُوهُمَا مَعَكَ يَوْمَ أُحُدٍ شَهِيدًا وَإِنَّ عَمَّهُمَا أَخَذَ مَالَهُمَا فَلَمْ يَدَعْ لَهُمَا مَالًا وَلَا تُنْكَحَانِ إِلَّا وَلَهُمَا مَالٌ قَالَ يَقْضِي اللَّهُ فِي ذَلِكَ فَنَزَلَتْ آيَةُ الْمِيرَاثِ فَبَعَثَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ إِلَى عَمِّهِمَا فَقَالَ أَعْطِ ابْنَتَيْ سَعْدٍ الثُّلُثَيْنِ وَأَعْطِ أُمَّهُمَا الثُّمُنَ وَمَا بَقِيَ فَهُوَ لَكَ قَالَ أَبُو عِيسَى هَذَا حَدِيثٌ حَسَنٌ صَحِيحٌ

“The wife of Sa`d ibn al-Rabi` came to the Prophet and said, ‘Messenger of Allah. These two are the daughters of Sa`d b. Rabi`. Their father fought with you at Uhud and was martyred there. Their uncle has taken away all that he left, sparing nothing for them. And I do not think they can get married unless they have some wealth.” The Prophet told her: “Allah will judge in this affair.” Accordingly, the verses concerning inheritance came down. The Prophet sent for their uncle and when he showed up he told him: “Hand over a third each to the two girls, an eighth to their mother and the rest is yours” (Qurtubi, Ibn Kathir).

40. If they are two (following the Sunnah: Au.) or above two (following Qur’anic text here: Au.) then they will equally share two thirds of the property. The rest of the one third will be divided among other closely related persons (such as parents, husband or wife: Ma`arif). But if there are no such closely related people, then the rest will also be returned to them (Thanwi).

41. If the deceased left only one daughter, then she gets a half of the deceased person’s property and the other half goes to other closely related persons. In the absence of the closely related the other half is also returned to her (Thanwi).

42. If the deceased leaves behind children as well as parents, then each of the parents gets one sixth of the property. The rest is divided among the wife (or husband) and children. In some cases, some wealth might still be left. If so, it will go to the father (who becomes an `asabah) - Ma`arif.

43. If the deceased leaves behind no children, no wife (or husband), brothers or sisters, then the mother gets a third and the father the rest. However, if the deceased has left either a wife or a husband (but no children) then the wife or husband get their allotted share and the rest is divided among the parents: one-third to the mother, two-thirds to the father (Thanwi, Ma`arif).

44. If the deceased left no children but had brothers and sisters (whether from the same father and mother, or from the same father but different mothers), then the mother will get a sixth, and the father the rest (Thanwi), but that on the condition that the brothers and sisters are more than one in number (Ma`arif). That is, if the deceased had only one brother or sister then the mother gets one-third and the father the rest (Au.). Obviously, in this case, since the brothers and sisters of the deceased are under the care of their father, he gets a larger share of the wealth left, which again returns to his children with his own death (Au.).

45. If the deceased bequeaths more than one third of his wealth, it will not be acted upon. It will be accepted only for one-third (Ma`arif).

46. `Ali ibn abi Talib and Mujahid have said that although bequest has been given precedence over debt in order of mention, it is debt which will be paid off first and earlier to acting on the bequest. This was the practice of the Prophet. That is, if nothing is left after clearing the debts then there will be no acting on the bequest and no division among the heirs (Ibn Jarir). `Ali’s statement is in Ahmad, Tirmidhi and Ibn Majah, and is fairly reliable (Ibn Kathir). Sayyid writes: The importance of paying back people’s debts can be gauged from the following:

عَنْ عَبْدِ اللَّهِ بْنِ أَبِي قَتَادَةَ عَنْ أَبِي قَتَادَةَ أَنَّهُ سَمِعَهُ يُحَدِّثُ عَنْ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ أَنَّهُ قَامَ فِيهِمْ فَذَكَرَ لَهُمْ أَنَّ الْجِهَادَ فِي سَبِيلِ اللَّهِ وَالْإِيمَانَ بِاللَّهِ أَفْضَلُ الْأَعْمَالِ فَقَامَ رَجُلٌ فَقَالَ يَا رَسُولَ اللَّهِ أَرَأَيْتَ إِنْ قُتِلْتُ فِي سَبِيلِ اللَّهِ تُكَفَّرُ عَنِّي خَطَايَايَ فَقَالَ لَهُ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ نَعَمْ إِنْ قُتِلْتَ فِي سَبِيلِ اللَّهِ وَأَنْتَ صَابِرٌ مُحْتَسِبٌ مُقْبِلٌ غَيْرُ مُدْبِرٍ ثُمَّ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ كَيْفَ قُلْتَ قَالَ أَرَأَيْتَ إِنْ قُتِلْتُ فِي سَبِيلِ اللَّهِ أَتُكَفَّرُ عَنِّي خَطَايَايَ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ نَعَمْ وَأَنْتَ صَابِرٌ مُحْتَسِبٌ مُقْبِلٌ غَيْرُ مُدْبِرٍ إِلَّا الدَّيْنَ فَإِنَّ جِبْرِيلَ عَلَيْهِ السَّلَام قَالَ لِي ذَلِكَ. (مسلم)

Abu Qatadah (ra) says a man came to the Prophet and asked, “Messenger of Allah, do you think if I am killed in the way of Allah, would all my sins be expiated?" He replied, “Yes, on the condition that you stay firm (in the battle-field), are hopeful of rewards, are advancing, and not retreating.” A little while later he asked: “What was it you asked?” The man repeated his question. The Prophet told him, “Yes, save for debts. Jibril came to me just now and added these words (to my previous answer).” The hadith is in Muslim, Tirmidhi and Nasa’i. Abu Qatadah reports another hadith according to which the Prophet arrived (to attend the funeral of a man) but said:

( صلوا على صاحبكم . فإن عليه دينا ) فقال أبو قتادة أنا أتكفل به . قال النبي صلى الله عليه و سلم ( بالوفاء ؟ ) قال بالوفاء . فصلى عليه رسول الله صلى الله عليه و سلم

“Pray over your brother. (I shall not, since) he has left debts behind him.” Qatadah says, I said, “I shall pay for them, Messenger of God.” the Prophet said: “Is that a firm promise?” I said, “That’s a firm promise.” At that, the Prophet Prayed over him.”

47. Ibn `Abbas has said that this ‘being of benefit’ will be in the Hereafter, when it is the nearest of kin who will intercede for another. But Mujahid and Suddi have said that ‘being of benefit’ is in this world itself. Ibn Zayd has said that both have been included (Ibn Jarir).

48. The husband will get a half of what the wife leaves, if she has no children. The other half will go to her parents, brothers and sisters (Ma`arif).

49. Whether such children are by the last husband, or a previous husband (Shabbir).

50. If the wife leaves behind children, whether by the present husband or from a previous one, he gets only a quarter and the rest goes to her parents and children (Ma`arif).

51. Majid observes: “In this point at least, the Qur’anic legislation is acknowledged to be ‘in advance of not only the greater number of barbarous societies’ but also ‘the Bible.’ For, it recognizes ‘the right of a widow to inherit from her husband... The Bible was less kind to the widow. It does not place her among her husband’s heirs. The Jewish widow was a charge on her children, or, if she had none, on her own family’ (Laetourneau, Evolution of Marriage, pp. 259-260).”

52. Sa`id b. Mansur, Hakim and Bayhaqi have reported Ibn Mas`ud as saying that `Umar was asked about a deceased who had left no children. He said his wife would get one fourth of the total, his mother one third of what was left, and the rest would go to his father (Shawkani).

53. Accordingly, the Prophet gave an eighth to Umm Kuhhah. From what remained he gave one half to the only son of the deceased, dividing the rest between the two daughters. He gave nothing to the cousins of the deceased who had originally taken away all of it forcing Umm Kuhhah to apply to the Prophet -Alusi, Ma`arif.

54. Kalalah: “Direct line” is the literal meaning of the word. It is reported that Abu Bakr said: “I interpret kalalah as a (male or female: Au.) who has no parents, no grandparents and no children. If I am right in my interpretation, it is from Allah, but if wrong, it is from Satan.” Later, when `Umar succeeded him he said, “I feel ashamed that I should oppose Abu Bakr.” So he also interpreted the word as someone with no parents and no children. That is also the interpretation of Ibn `Abbas, Sulaym b. `Abd, Hakam, Ibn Zayd and Qatadah (Ibn Jarir, Qurtubi). This is also the opinion of `Ali, Ibn Mas`ud, Zayd ibn Thabit, Sha`bi, Nakha`i, Hasan, Jabir, and Zayd ibn al-Hakam. It is also the opinion of the seven jurists of Madinah, of the four fuqaha’, and the great majority of the ancients and the moderns (Ibn Kathir). Notwithstanding that, there are several other minority opinions about who a kalalah is. But it might be noted that although there are several opinions about how a kalalah is to be defined, and that even ‘Umar was not sure who exactly a kalalah was; in other words, of the several possible applications, which one is to be called kalalah .. although that is true, but there is no difference in opinion that given a case, how inheritance should be divided. Many people who do not understand this point, imagine that the inheritance laws are unclear. They do not understand that it is only the term which is not clear as to whom it is applicable. In simpler ones, the term kalalah might be applicable to one or another of those mentioned, but how the wealth is to be divided, is a thing agreed. One might see “Fat-h al-Mulhim” of Shabbir Ahmad `Uthmani for clarifications (Au.).

55. The following might be kept in mind as a general rule: So long as a father or a son of the deceased is alive, brothers or sisters, (real, consanguine or half), do not have any share in the inheritance. It is only in the absence of the father or son that the brothers and sisters of the deceased become eligible. Now, brothers and sisters are of three kinds: i) Real, (`ayni: common father and mother); ii) Consanguine (`allati: common father); and iii) Half, or Uterine (akhyafi: common mother). By common consensus this verse is speaking of the last type. And the rule is that so long as the `ayni or ‘allati brothers or sisters are alive the ‘akhyafi will get nothing. Again, while deciding a share, it is the `ayni who get preference, then come the `allati. The share of the full and consanguine brothers and sisters has been defined at the end of the surah (Shabbir).

56. If a person dies having left neither parents, grandparents nor children, but a brother or sister from the same mother, then whether it is one sister or one brother they will get a sixth. That is, if it is a brother he will get one sixth alone (and not one third). This is by consensus of the jurists of all times. Further, that the brother or sister has to be of the same mother is also by consensus of the scholars. The proof of this is in the verse about inheritance that will come at the end of the surah, where it is speaking of the share of the real and consanguine brothers and sisters (Ma`arif). Qurtubi has stated that there is no other case in the law of inheritance of the males and females getting equal share and not the usual 2:1.

57. If the brothers and sisters are more than one, then they will equally share in one third. The rest will go to the husband or wife. If they are absent then the rest will also be returned to the brothers and sisters. In this specific case also the usual rule of 2:1 will not be observed, rather the available amount will be divided equally among the males and the females (Thanwi).

58. Ibn `Abbas has said that it is a major sin to try and harm an inheritor through a will. It is said that when Masruq visited a man who was in his death bed and making a will, he told him: “Be just, and do not be misguided” (Ibn Jarir).

59. Appearing as these words do, do they imply that he who did not obey Allah and His Prophet in matters of division of inheritance stands condemned to everlasting punishment in Hell-fire? The answer is yes, if such disobedience is out of belief that Allah was not just in His division (Ibn Jarir). Legal Points: • 1. The law of inheritance is not applicable to Prophets. Abu Bakr has related a hadith to this effect. Hence, what the Prophet left of the orchard at Fadak was not divided among his heirs (Razi, Thanwi); which is a point of contention of the Shi`ah against the Sunnis (Au.). • 2. There are three kinds of heirs. The As-hab ‘l-Fara‘id, the `Asabat, and the Dhu ‘l-Arham. The As-hab ‘l-Fara‘id have the first right to inheritance. After they have received their share, the remaining is divided among the `Asabat. If there is no one from among the `Asabat, then the share is returned to the As-hab ‘l-Fara‘id. And, if both the As-hab ‘l-Fara‘id and `Asabat are absent, then the wealth is divided among the Dhu ‘l-Arham. Details should be seen in Fiqh books (Shabbir, Ma`arif). • 3. Sometimes a person can both be of the As-hab ‘l-Fara‘id as well as one of the `Asabat (and might receive two shares: Ma`arif). The As-hab ‘l- Fara‘id are five: i) Children (real brothers and sisters), ii) parents (father and mother), iii) husband, iv) wife, v) consanguine brothers and sisters (of common father) - Shabbir. • 4. Some fiqh books state the combined figure of 17 as the As-hab ‘al-Fara‘id and `Asabat, (since one can be both in certain situations), as follows: i) son, ii) son of son how low so ever, iii) father, iv) grandfather how high so ever, v) brother, vi) son of the brother, vii) uncle or brother of the father, viii) son of such an uncle, ix) husband, x) master who freed his slave, xi) daughter, xii) daughter of the son of the deceased, xiii) mother, xiv) grandmother from both sides, xv) sister: full, consanguine or uterine, xvi) wife, and xvii) freed slave girl. (Doi and Ahmad `Isa in Fiqh al-Muyassar) • 5. Dhu ‘l-Arham would include daughter’s children, sister’s children, aunts (from both sides), uncles from the mother’s side and others (Ma`arif). • 6. The law of inheritance will apply to all kinds of property, movable or immovable, cash, shares or any other, including personal belongings, to the last item, unless otherwise agreed to by common consent. • 7. Age is no bar to inheritance. • 8. Unborn child has also a share. Therefore it is desirable that the division be postponed until birth (Ma`arif). • 9. A divorced woman, but still in `iddah (waiting period) also deserves her share. But if a woman has claimed separation (khul`) then she will not get a share even if she is in `iddah (Ma`arif). Obviously, a separated husband has no right in the property of his former wife (Au.). • 10. An unbeliever cannot inherit a believer nor can a believer inherit an unbeliever. • 11. If a man leaves behind more than one wife, then the share stated by the Qur’an will be divided equally among them (Ma`arif). That is., if one would have got one third, then the two will get one sixth each (Au.). • 12. A murderer by intent will get no share from his victim. • 13. Apart from the very basic needs of a coffin, nothing more can be spent on the funeral etc., from the wealth of the deceased before division. The prohibition would also include the meal etc. offered to the condolence visitors. Any expending from the wealth of the deceased needs the approval of all the inheritors, except the non-adults from whose share nothing can be taken until they achieve maturity and give their consent. It is reported that a scholar visited a dying man. The man died even as he was there. As soon as he was dead, he put off the lamp and offered his own money for buying another. When asked, he explained that the lamp belonged to the deceased, and after his death to the heirs. It could not be used without their permission (Ma`arif). • 14. Mahar (dower) is also considered as debt if unpaid. It will have to be given away before execution of the will, and hence before any division. In fact, if the payment of dower consumes all that was left then no division will take place (Ma`arif). • 15. Bequest in favour of someone who is a legal heir is inadmissible and will be ignored. A hadith in Abu Da’ud explicitly states this. However, if all the adult inheritors agree to an increase of the share of anyone among themselves following a bequest, or otherwise, then that is allowable. But the share of the minors cannot be reduced (Ma`arif). • 16. All points stated by Alusi, Thanwi, Shabbir and Ma`arif reflect, unless mentioned otherwise, the Hanafiyy viewpoint. • 17. The notes herewith are only to afford the reader a sketchy idea of the Islamic law of inheritance. A simple chart below (one of 20 that could be presented) might offer some more help. For further information the reader might consult “Shari`ah the Islamic Law” by Abdur Rahman I. Doi, or Fiqh books. All the same, it is a fairly complicated subject, mastered, during the time of the Companions by four: `Ali, Ibn `Abbas, Ibn Mas`ud and Zayd. Today also only a few scholars gain expertise in it. Therefore, no one should attempt to divide inheritance in the light of what is stated here. That should only be undertaken by an expert (Au.). Note that the chart below follows the Hanafiyy Law: Name of the heir Quantity Conditions under which the Whose share is to be of share particular share is due determined Husband ½ When the deceased leaves no children Wife ¼ - do – Husband ¼ When the deceased leaves children Wife 1/8 - do – Daughter ½ When the deceased leaves a single daughter and no son Daughters 2/3 Shared equally when the deceased leaves two or more Daughters but no son Father 1/6 When the deceased leaves children Mother 1/6 When the deceased leaves children Grandfather 1/6 When the deceased leaves children but no father Grandmother 1/6 When the deceased does not leave mother.