3.8 Inheritance

The reform introduced by Islam into the rules relating to inheritance is twofold: it makes the female a co-sharer with the male, and divides the property of the deceased person amongst the heirs on a democratic basis, instead of handing it all over to the eldest son, as is done by the law of primogeniture. The Arabs had a very strong tradition that he alone could inherit who smites with the spear, and therefore they did not give any portion of inheritance to such of the heirs as were not capable of meeting the enemy and fighting in battles (IJC, IV, p. 171). Owing to this tradition, which strongly appealed to people among whom tribal fighting was carried on day and night, not only were all females — daughters, widows and mothers — excluded, but even male minors had no right to inheritance. Woman, in fact was looked upon as part of the property of the deceased (4:19), and therefore her right to property by inheritance was out of the question. Even in the Jewish law she had no better position; “There could have been no question in those days of a widow inheriting from her husband, since she was regarded as part of the property which went over to the heirs … Nor could there have been a question about daughters inheriting from their father, since daughters were given in marriage either by their father, or by their brothers or other relatives after the father’s death, thus becoming the property of the family into which they married.” (En. J., p. 583).

Islam came as the defender of the weaker sex and the orphans, and just when a defensive war against the whole of Arabia was being carried on by a handful of Muslims, the prevailing law of inheritance, which gave the whole of the property to those members of the family who bore arms, was declared to be unjust, and a new law was given which put widows and orphans on a level of equality with those who fought for the defence of the tribe and the country. When the change was first introduced, some of the Companions thought it very hard and complained to the Holy Prophet, saying that they were required to make over half the property to a daughter who did not ride on horseback or fight with the enemy (IJ-C IV. p. 171). The general principle of inheritance is first laid down in the following words: “For men is a share of what the parents and the near relatives leave, and for women a share of what the parents and the near relatives leave, whether it be little or much” (4:7).

The law of inheritance is then stated in the following words: “Allah enjoins you concerning your children: for the male is the equal of the portion of two females; but if there be more than two females, two-thirds of what the deceased leaves is theirs, and if there be one, for her is the half. And as for his parents, for each of them is the sixth of what he leaves if he has a child; but if he has no child and only his two parents inherit him, for his mother is the third; but if he has brothers, for his mother is the sixth, after the payment of any bequest he may have bequeathed, or a debt … And yours is half of what your wives leave if they have no child, but if they have a child, your share is a fourth of what they leave after payment of any bequest they may have bequeathed or a debt; and theirs is the fourth of what you leave if you have no child, but if you have a child, their share is the eighth of what you leave after payment of any bequest you may have bequeathed or a debt. And if a man or a woman having no children, leaves property to be inherited and he (or she) has a brother or a sister, then for each of these is the sixth, but if they are more than that, they shall be sharers in the third after payment of a bequest that may have been bequeathed or a debt not injuring others” (4:11, 12). “Allah gives you a decision concerning the person who has neither parents nor children. If a man dies and he has no son, and he has a sister, hers is half of what he leaves, and he shall be her heir if she has no son; but if there be two sisters, they shall have two-thirds of what he leaves. And if there are brethren, men and women, then for the male is the like of the portion of two-females” (4:176).

The persons spoken of in these verses, as inheriting the property of the deceased, may be divided into two groups, the first group consisting of children, parents and husband or wife, and the second consisting of brothers and sisters. All the persons mentioned in the first group are immediate sharers, and if all three of them are living, all of them have a right in the property, while the members of the second group inherit only if all or some of the members of the first group are wanting. Both groups are capable of further extention: as for instance grand-children, or still lower descendants, taking the place of children; grandparents, or still higher ascendants, taking the place of parents; and uncles, aunts and other distant relatives taking the place of brothers and sisters.

Among the members of the first group, children are mentioned first, then parents, and then husband or wife, and that is the natural order. In the case of children, only a broad principle is laid down — the male shall have double the share of the female. Thus, all sons and all daughters would be equal sharers, the son however having double the share of the daughter. Another example of apparent inequality of treatment of the two sexes is that in which a man leaves only female issue. If there is only one daughter, she takes half the property; if there are two or more daughters, they take two-thirds of the whole, the residue going to the nearest male members, according to a hadith quoted further on. The reason for this is not far to seek. Man is generally recognized as the bread-winner of the family, and that is the position assigned to him in the Holy Qur’an. Keeping in view his greater responsibilities, it is easy to see that he is entitled to a greater share, and therefore the Holy Qur’an has assigned to him double the share of the female. In fact, if the responsibilities of the two sexes are kept in view, there is real justice and real equality beneath this apparent inequality.

If there are no members of the first group besides the children, the whole property will be divided among the latter, but if there are other members, then evidently the children take the residue, because the shares of the other members are fixed, one-sixth in the case of each parent and one-fourth or one-eighth in the case of the husband or wife.

Children’s children and lower descendants are, as is usual in the language of the Holy Qur’an, included among the children, but the basis of division will be the immediate descendants. Thus if there are grandsons, they will take the shares of their respective fathers. The case in which there are sons and grandsons should be treated on a similar basis, but here the jurists make a distinction, treating the grandsons as the remoter relatives and therefore not entitled to any inheritance, as long as there is a son. Again a son’s daughters, where there is no son, are treated by the jurists not as taking the place of that son who, if alone, would have taken all the property, but as the daughters of the deceased, taking one half in case of a single daughter and two-thirds in the case there are two or more.

But curiously enough, a son’s daughter when co-existing with one daughter of the deceased is considered as a sharer in inheritance, the two being treated together as two daughters of the deceased.

The words of the Holy Qur’an may however be interpreted in a manner which will avoid all such inconsistencies. The issue of a deceased son or daughter would take the place of their father or mother, and would take what their father or mother would have taken if alive. Suppose a person has one daughter only, who dies before her father, but who has got children; then her children would take the share their mother would have got, ie., one-half of the property. Again, where there are several children, some of whom are dead and have left issue behind them, while others are alive, then it is only an equitable principle that the issue of the dead offspring should take the place of their parents, and that is also the natural interpretation of the words of the Holy Qur’an. Moreover if this interpretation is adopted, the law of inheritance becomes very simple and free from all the complications and inconsistencies which juristic reasoning has in some cases introduced into it. All that is traceable to the Holy Prophet in this case is only a broad principle: “Give the fixed portions (fara‘idz) to those who are entitled to them, and what remains should go to the nearest male” (Bu. 85:6). This hadith does not show at all that the grandson is not entitled to inheritance, if there is a son living; though it is on this that the juristic principle of excluding grandsons is based. The application of the hadith may be illustrated by an example. A man dies leaving two parents and one daughter. The parents will get one-third; one half of the residue will go to the daughter and the remaining half will revert to the father who is the nearest male relative. The selection of the nearest male relative is based on a principle of equity, because it is he who is required to maintain the family.

The case of parents is taken after that of children, each of the parents taking a sixth, if the deceased has children. It is clear from this statement that after the parents have taken one-sixth each, the residue will go to the children and this residue will be divided among them, as laid down above, equally, the son taking double the share of the daughter. If however the deceased leaves only daughters, one-half of the residue shall go to a single daughter, and two-thirds to two or more than two daughters, and what remains shall go to the nearest male relative, according to the hadith quoted above. If the father or the mother is not alive, the grandfather or grandmother shall take his or her place.

The second case in which parents inherit from a deceased person is that in which the deceased leaves no issue. In this case it is said that if the parents are the only heirs, that is, there is neither a husband or wife, nor brothers and sisters, the mother takes one-third, the remaining two-thirds evidently going to the father. But if the deceased has no issue but has brothers (or sisters), the mother shall receive only one-sixth. It is not stated here what the father shall get or what the brothers’ and sisters’ share shall be. The prevalent view is that the presence of the brothers reduces only the mother’s share; the remaining five-sixths going to the father. Though, even in this case, the brothers and sisters, if dependent on the father, will benefit by the father’s increased share, yet it seems more reasonable that when the share of the mother is decreased on account of the presence of brothers and sisters, the latter should be entitled to a share in the property in their individual capacity.

The latter part of 4:12 lends support to this view, where, after specifying portions of the husband and the wife, it is added: “And if a man or a woman having no children (kalalah) leaves property to be inherited, and he (or she) has a brother or a sister, then for each of them is the sixth, but if they are more than that, they shall be sharers in the third.” The kalalah is spoken of here as well as in 4:176, where the brothers and sisters take the whole property. The explanation generally adopted is that the brothers and sisters spoken of in 4:12 are uterine, while those spoken of in 4:176 are full or consanguine. But there are strong reasons for the view that the kalalah spoken of in the two places carries a different significance; for while kalalah is generally explained by lexicologists as meaning one who has neither children nor parents, according to the Caliph ‘Umar and Ibn ‘Abbas it also means simply one who has no children (IJ-C, IV, p. 177; VI, p. 25). Now in 4:11, the Holy Qur’an speaks of an issueless person who has parents as well as brothers or sisters, but it does not there speak of the shares of these brothers or sisters. The conclusion is evident that the share of these brothers and sisters have been mentioned elsewhere. In fact what has been left unexplained in v. 11 has been fully explained in v. 12, and the case of kalalah there is the case of inheritance of a person who has no children but who has parents as well as brothers or sisters. According to v. 11, the mother gets one-third if a person has no issue, nor brothers or sisters, and she gets one-sixth if the issueless person has brothers or sisters. This reduction of her share is evidently due to the presence of brothers or sisters, and it is these brothers or sisters, that are spoken of in v. 12, so that the kalalah of that verse is the issueless person who has parents. Thus when a person dies without issue but leaves parents, brothers and sisters, according to 4:12, get a share which is one-sixth of the deceased’s property if there is only one brother or sister, and one-third of it if there are two or more brothers and sisters. And according to 4:176, a single sister (of a male deceased) or brother (of a female deceased) is entitled to one-half, two or more sisters to two-thirds, brothers and sisters to the whole property, the male having double the share of the female. This evidently is the case in which the deceased leaves neither issue nor parents.

The case of husband or wife is also dealt with in v. 12. The husband gets one-half if the deceased wife has no issue, and one-fourth if she leaves issue. The wife gets one-fourth if the deceased husband has no issue, and one-eighth if he leaves issue. The share of the husband or the wife, being fixed like that of the portions of the parents, must be taken out first, and the rest of the property will go to the children, or in case there are no children, to brothers and sisters.

Briefly, the inheritance law as laid down in the Holy Qur’an is this. After the payment of debts and execution of the will, if any, the shares of the parents and husband or wife shall be first taken out; after that the rest of the property shall go to the children, the son having double the portion of the daughter; if there are no children and there are brothers and sisters, one-sixth if there is only one brother or sister, and one-third if there are more than one, shall go to them; if the deceased leaves neither children nor parents, the whole of the property, after the husband’s or the wife’s share has been taken out, shall go to brothers and sisters; if there is a single female, daughter or sister, she shall take one-half of the property, a single brother following the same rule, and if there are two or more daughters or sisters they shall take two-thirds, the residue going to the nearest male relative according to Hadith; if a person entitled to inheritance is dead but leaves behind offspring, that offspring shall take his place, if the father or the mother is dead, the grandfather or grandmother shall take his or her place: all brothers and sisters, whether uterine or consanguine or full, shall be treated equally; if there are no brothers or sisters, the nearest relatives after them, such as father’s brothers or father’s sisters, shall take their place.

The inheritance law as explained above, on the basis of the Holy Qur’an, is very simple, and not the least complication arises in its application. It is when the spirit underlying that law is neglected that complication arises. For instance, it is clear that when there are parents and a husband or wife along with the children, the parents and the husband or wife would get their shares first and the rest of the property would go to the children. In case there are two or more daughters only among the children, two-thirds of the residue ought to go to them, the remaining one-third going to the nearest male relative. But the jurists in this case adopt a peculiar course. They allot two-thirds of the whole to the daughters, one-third to the parents and one-fourth or one-eighth to the husband or the wife, as the case may be. This evidently leads to a complication, as the daughter gets two-thirds, parents one-third, husband or wife one-fourth or one-eighth, the total amount of shares being 5/4 or 9/8. This difficulty has been solved by dividing the property into fifteen parts in the first case and giving 8/15 to the daughters, 4/15 to the parents and 3/15 to the husband, and into 27 parts in the second case, giving 16/27 to the daughters, and 8/27 to the parents and 3/27 to the wife. These are not the shares specified in the Holy Qur’an, and this is due to neglect of the spirit of the ordinance which, while allowing the whole of the residue, after taking away the shares of the parents and the husband or wife, to the children if they are all sons or sons and daughters mixed, allows them only two-thirds of the residue if they are only daughters, the rest going to the nearest male relative according to Hadith. The jurists’ convention goes under the name of ‘aul. The introduction of the ‘aul is, however, due only to an infringement of the real essence of the ordinance relating to the two-thirds share of the daughters.

Similarly, the jurists treat a grandson, when the son is dead, as belonging to the second group of inheritors, whereas he really belongs to the same category as the son, because he takes the dead son’s share. Suppose a man has three sons, one of whom is dead at the time of the death of his father, but has left children. To deprive these children is to go against all rules of equity, but the jurists are of opinion that the grandsons are excluded by the living sons and are not entitled to their father’s share. In fact, if the rule were generally adopted that when a person entitled to a share in an inheritance is dead, his children shall take his place, many of the complications which are the result of juristic reasoning, would disappear. The third point on which, in my opinion, the jurists have gone against the spirit of the Holy Qur’an, is the distinction between uterine and consanguine and full brothers which is the result of a misconception about the word kalalah and which has been fully explained above.

In the Hanafi law of inheritance, the heirs are divided into two groups. The first group goes under the name ashab al-fara’idz or dhawi-1-furudz, i.e., those whose shares are specified. These sharers are twelve in number; four males, the father, the grandfather, the uterine brothers and the husband; the eight females, wife, daughter, son’s daughter, mother, grandmother, full sister, consanguine sister, uterine sister. The father’s share is one-sixth when the deceased leaves a son or a grandson, but he sometimes takes a simple residuary and sometimes both as a sharer and a residuary, the former being the case when he co-exists with a simple sharer such as a husband, a mother or a grandmother, and the latter being the case when he co-exists with a daughter or a son’s daughter. The grandfather takes the same share as the father when the father is not living. The uterine brother, if one, takes one-sixth; if there are more than one, they are sharers in one-third. The husband takes one-half when the deceased leaves no children, otherwise one-fourth.

Among the female sharers, the widow takes one-fourth if the deceased leaves no children, otherwise one-eighth. The daughter, when only one, takes one-half; if there are two or more daughters, they are equal sharers in two-thirds. The son’s daughter takes one-half, if she is the only one and there is no lineal male descendant; if there are two or more in a similar position, they take two-thirds; co-existing with one daughter only, she takes one-sixth. The mother takes one-sixth, if there are children, or two or more brothers or sisters; otherwise one-third. The grandmother takes the mother’s share when there is no mother. The full sister or the consanguine sister takes one-half, if she is only one; two or more than two take two-thirds. The uterine sister’s share is the same as the uterine brother’s.

The second group of inheritors goes under the name of ahl al-mirath or the heirs who take a residuary interest. The most important of these are the ‘asabah, or relations on the male side, as the lineal male descendants, the lineal male ascendants, the direct collaterals such as full or consanguine brothers or their sons, or indirect collaterals such as full or consanguine uncles or their sons, or full or consanguine uncles of the father and their sons and so on; and the dhawi-l-arham or relations connected through females, such as (a) the sons and daughters of daughters, (b) the father of the paternal grandmother or mother of the paternal grandfather, (c) the children of sisters, daughters of full and consanguine brothers, sons of uterine brothers and (d) paternal aunts and their children, maternal uncles and their children, maternal aunts and their children and uterine paternal uncles and aunts and their children.

Besides, these are recognized (a) residuaries for special cause to which class belongs the emancipator of a slave, (b) the patron of the deceased, (c) heirs by acknowledgement, (d) the universal legatee (one to whom the deceased has bequeathed the whole of his property), and lastly the bait al-mal or public treasury. The subject is too technical and complicated to be dealt with in a book intended for the layman; and the bare outlines of the law of inheritance according to the jurists, as given above, is sufficient for the purpose of this book. If however the law is applied in its simplicity, as given in the Holy Qur’an, even the layman will find no difficulty in its application as shown above.

It will be seen that debts are the first charge on the property of the deceased, as the words “or a debt” in verses 11 and 12 show. The expenses relating to burial are also regarded as a debt which must be paid out of the property of the deceased. The wife’s dower, if unpaid, is also a debt and must be paid out of the property before it is divided. In the case of a person who leaves no issue, the words are “or a debt that does not harm others”, the implication evidently being that a person who has no children may contract a debt simply to deprive his heirs. The jurists divide debts into three kinds: (a) those contracted in health; (b) those contracted during illness which ends in death; and (c) those contracted partly in health and partly in illness (AA.). All wages due to servants are also included in debts.

The legality of a bequest is clearly admitted in both the verses dealing with the law of inheritance. The property left is to be divided “after payment of a bequest that may have been made or a debt” (4:11, 12). There is a further injunction, of an earlier date, relating to bequests: “It is prescribed for you, when death approaches one of you, if he leaves behind wealth for parents and near relatives, to make a bequest in a kindly manner; it is incumbent upon the dutiful” (2:180). There is also mention of a bequest in a verse which was decidedly revealed later than 4: 11, 12: “O you who believe, call to witness between you, when death draws nigh to one of you, at the time of making the will, two just persons from among you” (5:106). All these verses afford clear proof that a person can make a will with regard to his property.

There are, however, reliable hadith which place a certain limitation upon the right to make a bequest and, in fact, if no limitations were placed, the injunctions contained in 4:11, 12 would be nullified, for there would be no property to be divided among the legal heirs. Sa‘d ibn Abi Waqas is said to have made the following report: “I fell ill in the year in which Makkah was conquered, being almost on the brink of death when the Holy Prophet paid me a visit. I said to him, O Messenger of Allah! I possess much wealth and my only heir is a single daughter; may I therefore make a will with regard to the whole of my property? The Holy Prophet said, No. I then enquired about two-thirds of it, and he again said, No. I then asked him, if I may give away one-third of my property by will, and he approved of one-third, adding: A bequest of one-third is much, for if thou leavest thine heirs rich, it is better than that thou shouldst leave them poor, begging of other people, and thou dost not spend anything with which thou seekest the pleasure of Allah but thou art rewarded for it, even for the morsel that thou puttest into thy wife’s mouth” (Bu. 85:6; M. 26:0; Tr. 29:1). The same hadith is reported somewhat differently through another channel and, according to this report Sa‘d ibn Abi Waqas said:

“The Holy Prophet paid me a visit when I was ill, and he asked me if I had made a will. I said, Yes. He then asked, How much. I said, I have bequeathed the whole of my property to be spent in the way of Allah. He said, And what hast thou left for thy children? I said, They are in sufficiently good circumstances. He said, Better make a will about one-tenth of thy property. I then continued to ask him for less and less (for the heirs), until he said, Make a will of one-third of property and one-third is much” (MM. 12:20-ii). These reports make it clear that the will spoken of on various occasions in the Holy Qur‘an is a charitable bequest, and not a will for the heirs, and that this bequest was to be limited to one-third of the property, so that the heirs might not be deprived of their share of inheritance, the well-being of the heirs being as good a consideration with the law-giver as charity. It may also be added that according to another hadith, a bequest is not allowed in favour of an heir: “There is no bequest for an heir” (AD. 17:6: Tr. 29:4; IM. 23:6). To this are added in some reports the words “unless the heirs wish it” (MM. 12:20-ii). Thus while generally a will can be made only for charitable objects, and not for heirs, it is permissible to make a will in favour of heirs, if they wish it: so that if they have no objection, any arrangement may be made for the disposal of the property by will. Hence if the heirs agree, a man may either divide the whole property by will, or he may leave the property undivided, fixing the shares of the heirs in the income.