Kalaalah
In the end, the shares of kalaalah relatives have been
stated:
"If a man or a woman is made an heir on account of his [or
her] kalaalah relationship [with the deceased] and he [or she] has one brother
or sister, the brother and sister each shall recieve a sixth, and if they be
more than two, they shall be sharers in one third, after payment of any legacies
bequethed and any [outstanding] debts---without harming anyone. This is a
command from God and God is Gracious and all-Knowing." (4:12)
The most important word in this verse is kalaalah.
Originally, it is a nomen verbum (masdar) in the meaning of kalaal which itself
means `feebleness and frailty’. To quote a line from Aashaa’s poetry:
Fa aaa laitu laa ‘arthee lahaa min kalaalatin
("Then I swore that I shall not show any mercy on him
because of his feebleness and frailty.")
Mutammim Bin Nuvairah says:
Faka ‘annahaa ba`dal kalaalati wassuraa
`alijun tughaaleehi qazoorum mulmi`oo
("That [she] camel after the night’s tiring journey is
indeed like a wild ass whom even a pregnant donkey tries to overtake.")
Figuratively, the linguists attribute the following three
meanings to this word:
i) A person who leaves behind neither parents nor
children.
ii) Any relationship which is not through the parents or
children.
iii) All of one’s relatives except the parents and
children.
Zamakhsharee writes in his "Kashshaaf":
"Kalaalah has three meanings: It is an adjective used for
a person who leaves behind neither parents nor children; it also means all the
relatives of a deceased except his parents and children, and it also denotes the
relationships which are not through [the deceased’s] parents or children. The
Arabs says: maa warithal majda ‘an kalaalah ie he could not become an heir of
the old man because of a distant relationship. Likewise, you say: maa samata ‘an
aee ie he did not become quiet because he was unable to speak and maa kaffa ‘an
jubn ie he did not stop because of cowardice. And kalaalah is a nomen verbum (masdar)
meaning kalaal. Kalaal means loss of strength because of weakness. Aashaa says:
fa aaa laitu laa ‘arthee lahaa min kalaalatin i.e. then I swore that I shall not
show any mercy on him because of his feebleness and frailty. Later, it was
figuratively used for the relationship not through the parents and children. The
reason for this being that such a relationship is not as strong as the one
through the parents and children. And when it is used as an adjective of a
legatee or a legator it means zoo kalaalah. Similarly, you say falaanum min
qaraabatee ie falaanum min zawee qaraabatee, and it can also be an adjective
like hajaajah and faqaaqah meaning foolish." (Vol 1, Pg 485)
We could not find the word used in the first meaning ie a
person who does not leave behind both parents and children, in pre-Islamic
Arabic poetry though this use is grammatically correct.
It has been used at many instances in pre-Islamic Arabic
poetry in the second meaning ie the relationship not through the parents as well
as the children.
To quote Tirmaah:
yahuzzu silaahan lam yarith hu kalaalatan
yashukku bihee minhaa ghumoodhal maghaabinee
("He is waiving his weapon which he did not inherit
because of a distant relationship. Through it he pierces the part concealed in
her thighs.")
Amir Bin Tufail says:
wa maa sawwadatnee `aamirun `an kalaalatin
("And the tribe of Amir did not make me the chief because
of a distant relationship.")
Acording to "Lisaan-ul-Arab":
"The Arabs say lam yarith hu kalaalah ie due to his
distant relationship be did not become an heir, but he inherited the estate
because of nearness and entitlement to it." (Vol 11, Pg 592)
The third meaning attributed to it ie all relatives of a
person except his parents and children is verified by many examples in the
pre-Islamic Arabic literature.
A Hamaasi poet, Yazeed Bin Al-Hakam, while admonishing his
son says:
Wal mar’u yabkhalu bil huqooqi wa lil kalaalati maa yaseem
("Man shows miserliness in discharging his duties and
after his death, his distant relatives take away his animals which graze in the
forests.")
Azharee, has quoted a poet’s couplet:
Fa inna abal mar’i ahmaa lahu
Wa maulal kalaalati laa yaghdhaboo
("If a person is oppressed and persecuted, it is his
father who, in his support, is infuriated the most. Kalaalah relatives are not
infuriated to this extent in such a matter.")
To quote a Bedouin’s saying:
"I have alot of wealth and my heirs are kalaalah ie
distant relatives." (Lisaan-ul-Arab, Vol 2, Pg 592)
Imam Muslim has quoted the following words in a hadith
narrated by Jabir:
"O Prophet of Allah ! only kalaalah are my heirs." (Kitaab-ul-Faraaidh,
Chap 2)
Many traditions in which Qur’ānic verses have been
explained endorse, this meaning. Abu Bakar Jassaas writes in his "Ahkaam-ul-Qur’ān":
"In this regard there are two narrations attributed to Abu
Bakar, Ali and Ibni Abbaas. One of then says that all except the father and the
children are kalaalah and Mohammad Bin Saalim reports from Shu’ba, who reports
from Ibni Masood that all except the father and the children are kalaalah and
Zaid Bin Thabit has also reported this meaning." (Vol 2, Pg 87)
Now, let us consider the verse under discussion. Though
our jurists have unanimously preferred the first meaning here, yet the verse
itself testifies against adopting this meaning. If we carefully analyze verses
11 and 12 of Sūrah Nisaa from yoosee kumullaahu fee aulaadikum, we observe that
after a mention of the shares of the children and the parents, the Almighty has
directed us to carry out the distribution of legacy by the words mim ba’di
wasseeyyatin yoosee bihaa au dain (after the payment of any legacies he may have
bequethed and after discharging any debts he may have left behind). The
directive has been repeated in the shares of the spouses in the words mim ba’di
waseeyyatin yooseena bihaa au dain and mim ba’di waseeytin toosoona bihaa au
dain. A little contemplation shows that in all these instances the verb has been
used in its active form and the antecedent of yoosee, yooseena and toosoona is
clearly stated in each of these sentences. But in the verse of kalaalah the verb
has been used passively. This departure tells us that the subject (faa’il) of
the verb yoosaa ie the legator in wa in kaana rajulun yoorathu kalaalatan au
imra’atan has not been stated. Therefore, in this verse the word kalaalah cannot
be regarded as an adjective for the deceased. The change conclusively testifies
that the Qur’ān has not used the word in its first meaning ie a person who does
not leave behind either parents or children.
As far as the second and third meanings are concerned, any
of the two can be preferred on the basis of a more delicate grammatical
construction, because in both cases the implied meaning remains the same. Hence
in this verse the verb yoorathu, in our consideration is from the if`aal
category used in its passive form and kalaalah is maf`ool lahu (an accusative on
account of which something is done). Kaana here is an incomplete (naaqisah) and
yoorathu is its predicate (khabr). Rajulun and imra’atun are the nouns (‘asmaa)
of kaana. Keeping in mind this analysis of the verse, it can be translated thus:
`and if a man or woman is made an heir because of his kalaalah relationship...’
Naturally, only the deceased person will have the right to
make someone his heir. Since the second object of the passive verb yoorathu has
not been stated, linguistic principles dictate that in the given context the
verse should only mean that a kalaalah relative can be made an heir together
with the rightful heirs, apart from them as well as in their absence.
Wa lahu akhun au ukhtun fa li kulli waahidim minhumas
sudus. Fa in kaana akthara min zaalika fa hum shurakaau fi thuluthi min ba’di
wasseyyatin yoosaa bihaa au dain i.e. if a man or a woman from the associations
of a single relationship is made an heir, then if the person who is made the
heir has one brother or one sister, he (or she) will be given one sixth of what
the heir himself receives and if the heir has more than one brother or sister
then they shall share equally in a third of what the heir himself receives.
After this there remains no need to say that the remaining five sixths or two
thirds (whatever might be the case) shall be given to the person whom the
deceased had made his heir. If it is said `Ahmad has made your son the heir of
his wealth but if he has a brother, then the brother shall be entitled to a
third of his share’, it clearly means that after the brother receives his share
the remaining money should be given to the son who has actually been made the
heir.
This directive of the Qur’ān has a very sound reason
behind it. Naturally a deceased can choose to make any brother, sister, aunt or
uncle (kalaalah relatives) his heir. But there can be other brothers or uncles
besides the one who has been made an heir by a deceased. The case is no
different for sisters or aunts also. A person can prefer any uncle or aunt. But
the Almighty does not approve the fact that all other associations of the same
relationship should totally be deprived of any share. Therefore, if a person has
made one of his paternal uncle, Saeed, the heir to his remaining estate in
presence of two other paternal uncles then the two shall share equally in a
third of what Saeed receives, and Saeed himself shall recieve the remaining two
thirds.
Ghaira mudhaaar. Wasseyyatim min Allah Wa Allaahu `Aleemun
Hakeem. These words at the end of the verse serve as a warning that making
someone an heir should not be a source of harm for any of the rightful heirs.
To dispel any element of foul play, the Almighty
Himself has designated the shares of the real heirs. Since, according to the
verse a person can make any of his kalaalah relatives his heir, it has been
emphatically stated that while exercising this prerogrative the rights of a
rightful heir should not be usurped. This is not a piece of advice from an
earthling. It is what the Creator of the heavens and the earth has directed us
about. If any of His creation deliberately deprives a rightful claimant from his
share then he should be aware that God has knowledge of all his deeds and if he
errs unintentionally, the Almighty is Gracious and Merciful. He does not burden
a person with a responsibility he cannot fulfil. All His directives bring ease
and facility for His creation and are not meant to put them through hardship and
difficulty.
Brothers and Sisters
Since according to our interpretation all brothers,
sisters, uncles and aunts are kalaalah and a person can make anyone of them his
heir, it is possible that he might prefer an aunt or an uncle over his brothers
and sisters. If a deceased has children the nature of the directive is proper in
all respects but if the deceased has no children and has brothers and sisters
then this authority vested in him stands objected. It is an unquestionable
reality that after one’s children, his brothers and sisters among his kalaalah
relatives are nearest to him. Common sense demands that in such a case they
should receive a large portion of the legacy. Verses 11-12 of Sūrah Nisaa
clearly state that if a deceased has brothers and sisters, the parents shall
receive a sixth each. Since this share is the same as what they receive in the
presence of children, a question arises that does the deceased has the authority
in this case also to make the brothers and sisters his heir or to deprive them a
share in his wealth. While explaining verses 11-12 of Sūrah Nisaa we had written
that the style of the verses is such that in the absence of children, the
brothers and sisters of a deceased should be his heirs. But obviously, the
meaning unfolded by a particular style cannot be as certain and definite as the
one which is directly obtained through the words used. In the absence of
children the question about the shares of brothers and sisters can even arise
today. It had arisen in the time of the Prophet (sws) as well. Jabir reports:
"He says: I was sick and in a state of unconciousness when
the Prophet of Allah arrived at my place. He performed ablutions and the people
sprinkled some water over me from which the Prophet was performing his
ablutions. When I came to my senses I said O Prophet of Allah all my heirs are
kalaalah; at this, this verse of
interitance was revealed." (Muslim, Kitaab-ul-Faraaidh, Chap 2)
From the words `O Prophet of Allah all my heirs are
kalaalah; at this, this verse of inheritance was revealed’ of the above
tradition, it is evident that among the kalaalah relatives the question was
particularly about brothers and sisters and the last verses of Sūrah Nisaa were
revealed as a result of this inquiry.
A special style of the Qur’ānic verses is that in them
certain questions have been stated in a very concise and compact form. The
actual nature of the question and its back ground is revealed by the answer
which the verses subsequently give. By not taking into consideration this style
the commentators have come across many difficulties in understanding qul lilaahu
yufteekum fil kalaalah. Here also, if only the answer is analysed the meanings
the verse convey is very evident:
"People ask your pronouncement. Say: God enjoins you about
your kalaalah heirs that if a man dies childless and he has only a sister, she
shall inherit half of what he leaves and if a sister dies childless then her
borther shall be her heir; and if there are two sisters they shall inherit two
thirds of what he (or she) leaves. If there are many brothers and sisters, the
share of each male should be that of two females. God expoundeth unto you that
ye err not and God has knowledge of all things" (4:176)
Qul lilaahu yufteekum fil kalaalah (God enjoins you about
your kalaalah heirs ) is of the same style and pattern as yoosee kumullaahu fee
aulaadikum (God enjoins you about your children). In the latter case, the
directive is about the children as the heirs of a deceased while in the former
case the pronouncement is about kalalaah relatives as the heirs of a deceased.
The article alif laam defines the word kalaalah in this verse, which testifies
to the fact that the question concerns some specific relations among the
kalaalah relatives and the answer shows that these specific relations are the
deceased’s brothers and sisters. Verse 12 of Sūrah Nisaa has already empowered a
person to bequeth a part of his legacy in favour of kalalaah relatives like
uncles, aunts, brothers and sisters. Here, a particular case has been mentioned
after the general directive. Considering this, the correct meaning of the verse
is:`Say, Allah gives you a pronouncement about brothers and sisters among the
kalaalah relatives’. Another example of this Qur’ānic style can be seen in verse
189 of Sūrah Baqarah.
It should be clear that the words in umru’un halaka laisa
lahu walad.... (if a man dies childless....) do not state the meaning of
kalaalah; they merely state a condition which must be fulfilled if the brothers
and sisters are to receive a share in a legacy. Just as in the verse Fa in lam
yakun lahu walad wa warithahu abwaahu a condition has been stated that if the
deceased is issueless and only his parents are his heirs then they shall receive
such and such a share. Similarly, in the given verse a condition has been stated
that if a person dies childless and he has brothers and sisters, their share is
so and so. It is quite amazing that some people derive the meaning of kalaalah
from these words. It should be kept in mind, that the Qur’ān is not a
dictionary. It is of a highly literary style revealed in the manifest language
of Arabic. All its words are very well known and common Arabic words. We have
conclusively proved above that the word kalaalah is not alien to the Arabic
language. Even if it is considered a rare word, it is a matter of literary taste
to determine the meanings of such words from the context in which they are used.
Also evident from the condition in the verse is that
brothers and sisters are heirs of a deceased, only in case he dies childless. If
he leaves children, they do not have any share in his wealth except if a
deceased makes a bequest in their favour according to the general directive
mentioned in verse 12 of Sūrah Nisaa.
The shares of brothers and sisters stated here are the
same as those of the children stated earlier. Also, the style of the words In
kaanu ikhwatan rijaalan wa nisaan fa lizzakari mithlu hazzil unthayain (If there
are many brothers and sisters, the share of each male shall be that of two
females) bears witness to the fact that these shares also shall be given after
the parents and the spouses are handed over their shares. We have presented the
relevant arguments in the section which deals with the shares of the children.
Hence, if the deceased only has sisters then two thirds or one-half (whatever
the case may be) of the share meant for the brothers and sisters shall be given
to the sister or sisters.
We have indicated earlier on that it is evident from verse
12 of Sūrah Nisaa that in the absence of children, the brothers and sisters of a
deceased take their place. This particular verse of Sūrah Nisaa conclusively
proves the premise. It was possible to misinterpret it from the style of verses
11-12, but here all doubts have been removed as to what the words imply. The
Qur’ān, therefore, says:
"God expoundeth unto you that ye err not and God has
knowledge of all things." (4:176)
Left over Legacies
According to our interpretation of the law of inheritance,
if a deceased has only daughters or sisters, a portion of his wealth is left
over after the heirs have been given their shares. Likewise, if a deceased does
not have any children, parents, brothers, and sisters, a large portion of his
estate remains undistributed. One solution to the problem, as indicated above,
is that the Qur’ān itself has directed a person to make someone his heir. But if
a person has not done so, what is to be done? The following tradition answers
the question:
"Give the heirs their share and if something remains, it
is for the closest male [relative]." (Muslim, Kitaab-ul-Faraidh, Chap 1)
Summary
At the end of this discussion we present a brief outline
of the law. Every person can assess from this that how clear and simple the
Islamic law of inheritance is. There is no question of `aul or rad in it. All
its aspects are manifest and unambiguous. Both the bedouins of the deserts and
scholars of the academies can distribute their legacies with equal ease.
The outline is stated thus:
1. If a deceased has outstanding debts to his name then
first of all they should be discharged. After this any legacies he may have
bequethed should be paid. The distribution of his inheritance should then
follow.
2. After giving the parents and the husbands or wife their
shares, the children are the heirs of the remaining inheritance. If the deceased
does not have any male offspring and there are only two or more girls among the
children, they shall receive two thirds of the inheritance left over, and
if there is only a single girl, her share is one half. If the deceased has only
male children all his wealth will be distributed among them. If he leaves behind
both boys and girls then the share of each boy shall be equal to the share of
two girls and, in this case also, all his wealth shall be distributed among
them.
3. In the absence of children, a deceased’s brothers and
sisters shall take their place. After giving the parents and the husband or wife
their shares, the brothers and sisters shall be his heirs. The proportion of
their shares and the mode of distribution will be the same as that of the
children stated above.
4. If a deceased has brothers and sisters whether he has
children or not the parents shall receive a sixth each. If he does not even have
brothers and sisters then after giving the husband or wife his (or her) share,
one third of what remains shall be given to the mother and two thirds to the
father. If there is no one among the spouses, all of the inheritance shall be
distributed among the parents in the same proportion.
5. If the deceased is a man and he has children, his wife
shall receive one eight of what he leaves and if he does not have any children
his wife’s share shall be one fourth. If the deceased is a woman and does not
have any children then her husband shall receive one half of what she leaves and
if she has children, the husband’s share is one fourth.
6. Together with these rightful heirs, apart from them or
in their absence a deceased can make a near or a distant relative except his
parents, and children his heir. If the relative who is made an heir has one
brother and one sister than he they shall be given a sixth of his share and he
himself shall receive the remaining five sixth. However, if he has more than one
brother and sister then they shall be given a third of his share and he himself
shall receive the remaining two thirds.
7. If a person dies without making anyone his heir, his
legacy shall be distributed according to the principle li aulaa rajulun zakar,
(for the closest male).
8. The words "a deceased’s children" and "a deceased’s
brothers and sisters" are used both in the singular and plural sense as well as
for both the male and the female gender, whether there is only one or more boy
or girl, or there are only boys or there are only girls among the children,
whether there is only one brother or sister or there are many brothers and
sisters, in all the cases these connotations shall be considered understood.
(Translated from Ghamidi’s "Meezaan")
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