It is a universally acknowledged fact that the extent of
help and co-operation which a person receives from his parents, children and
other similar relations has little chances of being paralleled by any other
association. Undoubtedly, the world has always considered the kiths and kins of
a deceased as the rightful beneficiaries of the wealth he has left behind. But
certain issues in this regard have always remained unresolved, for example, who
among the kindred is nearest with respect to the benefit he holds for the
deceased? and how should the inherited shares be ascertained on this basis? In
this matter the extent to which the human mind has faltered and stumbled can be
seen from the frequent history these blunders have continued to make. It is not
that human endeavour in this regard has fallen prey to any lack of application,
rather it is due to certain inherent limitations of the human mind, which have
made the task itself beyond its reach. Love, hatred, prejudice and other
emotions, have made it impossible for the human intellect to come to grips with
this challenge. Consequently, the Almighty Himself has guided mankind in this
affair to relieve an Islamic society from the disorders which have originated on
this account:
"You know not who among your children and parents are
nearest to you in benefit. This is the law of God. Indeed, God is Wise and
all-Knowing." (4:11)
Two implications of the above verse are very clear:
Firstly, since the Almighty Himself has indicated who the
heirs of a deceased should be, a more just law in this regard could not have
been enacted. Hence, after this Divine Directive, no one has the right to
bequeth his wealth in favour of the heirs designated by the Almighty Himself.
The verse, in fact, admonishes all ill-advised elements, who on the basis of
their own intellect or personal inclinations may desire to amend the law: A
warning is being sounded to them that these shares have been apportioned by the
immense knowledge and wisdom of the Creator of the heavens and the earth, which
encompass all His directives. Man inspite of his formidable talents can neither
acquire the vastness of His knowledge nor comprehend the profundity of His
wisdom. If he is a true believer he must submit to the Word of God.
The following directive of the Prophet (sws) is based on
this Qur’ānic injunction:
"Indeed, God has granted every rightful person his right.
So no bequest can be made to an heir." (Tirmazī, Kitab-ul-Wasāyā, Chapter 5)
Secondly, the law of inheritance as stated in the Qur’ān
is based on the underlying cause of ‘the benefit of kinship’, as indicated by
the words lā tadrūna ayyuhum aqrabu lakum naf’ā (you know not who among your
children and parents are nearest to you in benefit). Consequently, the directive
in reality does not pertain to the relatives but is related to the underlying
cause present in this relationship, which actually entitles them to become the
heirs. All the relatives whose shares have been stated in the Qur’ān will be
considered eligible to be the recipients only in case the underlying cause of
this directive ie, benefit can be proven in their relation to the deceased. This
benefit is, by nature, present in parents, children, brothers, sisters,
husbands, wives and other close relations. Hence, in normal circumstances, they
will be considered the heirs to the legacy of a deceased. However, in certain
unusual circumstances, if an absence of benefit in any of these relationships is
diagnosed by sense and reason, the style and pattern of the verse demands that
such a relative should not become an heir to the legacy. Therefore, in such
cases, if someone is deprived from his share, it would be perfectly in
accordance with the purport of the verse, to which its words so clearly testify.
In the diverse nature of human relationships, there can be
certain instances in which an absence of benefit in close associations can be
clearly seen. A little deliberation shows that two such cases are very apparent:
1) Owing to some reason, no relationship
on the basis of Islam remains between a legatee
and a legator.
2) A legatee kills his legator.
The absence of benefit is extremely
evident in the second case, for what benefit can be expected from a person who
is after the life of his relations? However, the first case might be beyond the
comprehension of people for whom religion is no more than a cultural heritage.
But any one who has studied the Qur’ān knows that faith in God and renunciation
of every evil belief is simultaneously demanded from the believers by the Divine
Message. If a person has established a relationship with the Almighty in a
manner prescribed by Him then no relationship of love and affection, help and
co-operation on the basis of economic and social benefit, can be developed and
established with people who deviate from the prescribed path. The very essence
of Islam is nakhla’ū wa natrukū man yafjuruk (O Lord! we shall leave every
person who is disobedient to you). If the obligations stipulated by Islam as
stated in Sūrah Mumtahinah
are kept in consideration then it must be conceded that the absence of benefit
in the first case is more obvious than in the second.
Since the law of inheritance is based on
the underlying cause of benefit, both these cases are, in fact, not included in
its sphere of application. These exceptions do not annul the directive, but are understood to
exist in its connotations from the day it was revealed. They are inherent in
the meaning of the verse and not extraneous to it. Anyone having a linguistic
appreciation can clearly comprehend this fact.
The Prophet (sws) is said to have said:
"A Muslim cannot be an heir of a disbeliever nor can a
disbeliver be a Muslim’s." (Bukhari, Kitab-ul-Farāidh, Chapter 26)
"The slayer shall not receive the legacy of the person he
slays." (Tirmazī, Kitab-ul-Farāidh, Chapter 17)
Explanation of the Law
After this preliminary discussion, we will now present our
interpretation of the law as stated in verses 11-12 and verse 176 of Sūrah Nisā.
Since our view is different from the general, a detailed explanation supported
with all relevant arguments follows. We expect that our learned scholars will
accept or reject this viewpoint in the light of these arguments only.
Children
Verse 11 of Sūrah Nisā begins with the shares of the
children:
"God enjoins you about your children that a boy’s share is
equal to that of two girls’. And, if there are only girls among the children and
they are more than two then they shall receive two thirds of the inheritance,
and if there is only one girl then her share is half." (4:11)
The sentence Yūsī kumullāhu fī aulādikum (God enjoins you
about your children) acts as a prelude to lizzakari mithlu hazzil unthayain
(that a boy’s share is equal to that of two girls’). The word aulād denotes both
the female and male offspring. Hence, the correct sentence analysis in our
consideration is: lizzakari minhum mithlu hazzil unthayain ([among the children]
a boy’s share is equal to that of two girls’).
If this commandment had ended on the words lizzakari
mithlu hazzil unthayain then it would have meant that: (i) if the children of a
deceased are only a boy and a girl then the boy will receive twice as much as
the girl, (ii) if the number of boys and girls exceed this, the inheritance
shall be divided among them in a manner that each boy receives twice the share
of a girl, (iii) if there are only boys or only girls then the whole inheritance
shall be given to whoever among the two is present.
The third case is also, quite evidently, an essential
outcome of the style and pattern of the verse. If it is said that this money is
to be distributed among beggars and a male beggar is to be given twice the
amount of a female beggar then this means nothing except that the money is
actually meant for the beggars; hence if all beggars are male, all the money
shall be distributed among them and if all the baggars are female, then also the
same procedure shall be adopted.
But the directive does not end here: an exception
immediately follows, thereby amending it.
The sentence fa inkunna nisāan fauqathnataini fala hunna
thulutha mā tarak (and if there are only girls among the children and they are
more than two then they shall receive two thirds of the inheritance) is an
exception to lizzakari mithlu hazzil unthayain. This means that if among the
children of the deceased there are girls then whether they are two or more,
their share is two thirds. The words wa in kānat wāhidatan falahan nisf (and if
there is only one girl then her share is half) are co-ordinated to this
exception by the copulative particle (harf-i-’atf) wau and do not form an
independent clause.
We have interpreted the meaning of fauqathnatain (more
than two) as two or more than two. The reason behind this is that before it, the
word ithnatain (two) has been suppressed, which is due to the style and pattern
of the Arabic language. If in the language of the Qur’ān , the share of a girl
and of two or more girls are to be stated separately owing to a difference in
their proportions then there can be two ways of doing so. If an ascending order
is adopted the share of one girl shall be stated first followed by the share of
two girls. If the share of more than two girls is to be the same as that of two
girls, there is no need to mention it in words. After specifying the share of
two girls after that of one, due to a difference in their amount, if a silence
follows, then this is a clear indication that the share of two or more girls is
equal to that of two girls. If a descending order arrangement is employed, then
again, the words fauqathnataini au ithnatain (more than two or two) are
inappropriate as regards the linguistic style and pattern of Arabic; so after
stating the shares of more than two girls, the share of one girl will be stated.
In this style and arrangement the commencement of a sentence by fauqathnatain
bears evidence to a suppression of the word ithnatain before it. A little
deliberation shows that the verse readily suggest this fact. The finesse in the
arrangement demands that ithnatain should come after fauqathnatain while
linguistic principles dictate that ithnatain should come before fauqathnatain.
To fulfil both these requirements the Qur’ān has suppressed the word ithnatain
by adopting an elliptical style of expression in the descending order arrangment.
In the last verse of Sūrah Nisā, these shares have been stated in an ascending
order. Accordingly, we observe there that fauqathnatain has been suppressed
after ithnatain:
In umru’un halaka laisa lahu waladun wa lahu ukhtun falahā
nisfu mā taraka wa huwa yarithuhā in lam yakunlahā walad. Fa in kānatathnataini
fala humathuluthāni mimmā tarak. (4:176) (If a man dies childless and he has
only one sister , she shall inherit half of what he leaves and if a sister dies
childless then her brother shall be her heir; and if there are two sisters, they
shall inherit two thirds of what he [or she] leaves.
Parents
The shares of the parents are stated next:
"And if the deceased has children, the parents shall
inherit a sixth each, and if he has no children and only the parents are his
heirs then his mother shall receive a third, and if he has brothers and sisters
then the mother’s share is the same one sixth after the payment of any legacies
he may have bequethed and after discharging any debts he may have left behind."
(4:11)
The connective particle wau in wa li abwaihi li kulli
wāhidim minhumas sudusu mimmā tarak (and if the deceased has children, the
parents shall inherit a sixth each) does not co-ordinate this clause either to
fa in kunna nisāan fauqathnatain or to wa in kānat wāhidah; in fact, it
co-ordinates it to the whole directive above which relates to the shares of the
children. Hence this co-ordination (‘atf) is not copulative (lil jama’), rather
it is emendative (lil istadrāk) in nature. The reason is that though it is clear
from the words lizzakri mithlu hazzil unthayain that a boy’s share is twice a
girl’s, their actual proportion has not been indicated. This linguistic style
can be appreciated from an example: If it is said ‘This money is for the
children. Let each boy receive twice as much as a girl, and let the father
receive half the amount’, any person who has a little linguistic sense will
clearly understand these sentences to mean that the money is actually meant for
the children. If these sentences had ended without a mention of the father’s
share, all the money would have been distributed among the boys and girls in the
proportion indicated. But since the father is also to be given half the amount,
it is imperative that the father should first receive this amount and the what
remains should be distributed among the children. Our jurists are also of the
same opinion. Abu Bakr Jassās writes in his "Ahkām-ul-Qur’ān ":
"And another inference from the verse lizzakari mithlu
hazzil unthayain is that if besides children other heirs like parents and a
husband or a wife are also present then after giving them their shares the
remaining legacy shall be distributed among the children." (Vol 2, Pg 80)
But our jurists have erred in regarding fa in kunna nisāan
fauqathnatain as an independent clause like wa li abwaihi and have started
adding 2/3 to 1/3 and 1/4;
whereas fa in kunna nisāan fauqathnatain is an exception to lizzakari mithlu
hazzil unthayain and explains one of its aspects, as has been pointed out
before. As such this exception cannot have a different implication. The total
implied meaning can be appreciated by an example: ‘In this amount Omer, Ali and
Saeed have exactly equal shares, and if only Ali and Saeed are present, let Ali
receive two thirds and Saeed one third, and give ten rupees from this to our
sister.’ A little deliberation shows that though it has been said that in the
absence of Omer, Ali and Saeed shall receive two thirds and one third
respectively, an amendment at the end necessitates that ten rupees from the
amount should first be given to the sister, and whatever remains should be
distributed between Ali and Saeed according to their shares.
The verse under discussion is also of the same style.
Consequently, if this is kept in mind, it is not at all difficult to coprehend
that after the clause fa in kunna wāhidatan falahan nisf the shares of the
parents and the spouses which are co-ordinated to the shares of the children by
the connective particle wau shall all necessarily be distributed first and
whatever remains shall only be distributed among the children. Whether among the
children there are only boys or both boys and girls, the same principle shall
apply. Similarly, if only female children are present they shall receive two
thirds or half (whatever the case may be) from the remaining inheritance and not
in any case from the total inheritance.
This, in our opinion, is the correct meaning of the verse.
Any person who after comprehending the implications denoted by the particle wau
in wa li abwaihi and the particle fa in fa in kunna nisāan reads the verse,
shall spontaneously reach the same conclusion.
Regrettably, our jurists have failed to appreciate this
meaning. They insist upon giving the female offspring their two third share from
the total inheritance. As a result, in some cases it is not possible to
distribute an inheritance. They solve this problem by equally decreasing the
proportion of each share. This in their terminology is called ‘aul. Ibni ‘Abbās
comments on this in the following manner, as reported by Abu Bakr Jassās in his
"Ahkām-ul-Qur’ān ":
"Atā bin Abī Ribāh narrates that he heard Ibni ‘Abbās
speaking about the shares of inheritance, and specifically refering to ‘aul
among them. He was saying ‘Do you people reckon that the one Who has knowledge
about every sand particle shall distribute wealth in one half and one half and
one third. And after giving this half and this half how shall you give the
third?’ Atā says that he replied ‘what benefit is this to you and me. After we
depart from this world, our own legacy shall be distributed in the manner people
have adopted, contrary to our own view.’ Upon this Ibni ‘Abbās replied ‘Then let
us summon our sons and their sons, our women and their women and ourselves and
theirselves and pray together that the curse of God be on every liar. God has
not distributed any wealth in one half and one half and one third." (Vol 2, Pg
91)
Consider, next, the remaining part of the verse:
The word walad in in kāna lahu walad (if he has children)
and fa in lam ya kun lahu walad (if he does not have children) is used both for
male and female children. In the Arabic language this connotation is customary.
Besides being used here, it has also been used subsequently where the shares of
the spouses have been stated. In our consideration, in all these instances it
has the same meaning. There is no contextual indication, intrinsic or extrinsic,
to use the word specifically for male children. The linguists clearly maintain
that it is used in the singular as well as the plural sense and, also, both for
the masculine and the feminine gender. In all the cases mentioned, whether boys
and girls in the indicated numbers are present or absent, these connotations of
the word shall be considered understood. The following Qur’ānic verse
conclusively testifies to this meaning:
"And they regard the jinns as Allah’s equals, though He
created them, and impute without knowledge sons and daughters unto Him. Praise
and Glory to Him! Exalted is He above their imputations. He is the Originator of
the heavens and the earth. How can He have children when for Him there is no
consort. He created everything and He has knowledge about all things."
(6:100-101)
In the above verse, after a mention of the fact that the
idolators have falsely ascribed sons and daughters as partners to God, the
foolish claim has been refuted by the words: Annā yakūnu lahu walad (how can He
have children?). Obviously, walad here is meant both for the masculine as well
as the feminine gender.
According to the linguistic principles of Arabic, after
the words fali ummihi thuluth (the mother’s share is one third) the words wa li
abīhi thuluthān (and the father’s share is two thirds) or words of similar
meaning have been suppressed, as is being readily suggested by the words wa
warithahu abwāhu (and his parents are his heirs). Hence, this mention is a clear
proof of the suppression. When it is said ‘if the heirs of this money are only
Zaid and Ali, Zaid’s shares is one thirds’ then after this there is no need to
say that ‘the remaining two thirds is for Ali’---something which is understood
by all requisites of common sense.
Also, in our estimation, after fa in kāna lahu ikhwatun fa
li ummihis sudus (and if he has brothers and sisters then the mother’s share is
the same one sixth) the words wa li abīhis sudusu aidhan (and the father’s share
is also one sixth) or words having a similar meaning have been suppressed. The
contextual indication for this is also very evident. If the brothers and sisters
are present then the mother’s share is the same one sixth as in the case when a
deceased has children. This also bears witness to the fact that the father’s
share is also the same and that there is no need to express it in words. If a
reader relishes the finer aspects of a language, he instinctively concludes that
if the mother’s share has reverted to its original amount, so should the
father’s share. Thus in our opinion the correct analysis of these verses is: ‘If
there are children, both the father and the mother shall receive one-sixth. If
there are no children and only parents are the heirs, the mother’s share is a
third, but if there are brothers and sisters, the mother’s share is the same one
sixth’. One can very well see how this style effectively induces the mind to
spontaneously jump to the suppressed words:’and the fathers share is also the
same one sixth.’
It is clear from these verses that in the absence of
children, brothers and sisters take their place. Our view is endorsed by the
last verses of the sūrah, but we will delay an explanation until the end, when
these verses shall be discussed.
The word ikhwatun, in our consideration, only signifies
the existence of a being. It merely specifies that in the presence of brothers
and sisters regardless that they are one, two, or more in number, the parental
shares revert to their original amount. Plurality here does not indicate a
numerical amount, rather it only denotes the existence of an entity. To quote a
Hamāsi poet:
Iyyāka wal amralazī in tawassa’at
Mawāriduhu dhāqat ‘alaikal masādiru
["Avoid entangling yourself in a matter in which if the
paths that lead to it (mawārid) are wide, those that come out (masādir) are
narrow."]
The poet has used the words mawārid and masādir. It will
be outright injustice to this literary utterance if it is interpreted to mean
that it urges the reader to refrain from getting involved in matters whose
mawārid amd masādir are, after all, three or more. The poet only intends to
establish the existence of a maurid and a masdar and obviously has has no
intention to convey their numerical amount. There may be only one way of getting
involved and withdrawing from an affair and there may be several ways to do so.
Similarly, a deceased may leave behind a brother and a sister and their number
can also be five or ten. The word ikhwatun encompasses all these different
cases. To convey such meanings every language employs this style of plurality.
If it is said, ‘If you have children then give these sweets to them’, no one
will consider this to mean that if the addressed person has only one child, he
cannot be given the sweets, merely because the word children has been used by
the speaker. Such a meaning can only be inferred by someone who instead of
appreciating a language in literary perspectives starts analysing it on the basis
of crude mathematical axioms. Our able scholars insist upon qualifying ikhwatun
in numerical terms. They are adamant on a literal interpretation that must
conform to the norms of duality and plurality.
The words mim ba’adi wasīyyatin yūsī bihā au dain (after
the payments of any legacies he may have bequethed and after discharging any
debts he may have left behind) at the end of the directive imply that if a
deceased has outstanding debts to his name then first of all they must be paid
from the wealth he has left behind. After this, a part of his legacy which he
might have bequethed shall be paid, and whatever remains shall be distributed
among the heirs. Though the directive of discharging of debts has been stated at
the end of the verse, it shall be given priority over all payments. The reason
is that a person from whom money is borrowed has a rightful share in the wealth
of a deceased borrower before his death, while an heir becomes a rightful
shareholder in a person’s wealth only after his death. As far as the precedence
of the payment of any bequethed legacy in the actual statement of the verse is
concerned, it owes much to a touch of elegance in presentation, a distinctive
feature of Qur’ānic Arabic.
Spouses
The shares of a husband and wife are stated next:
"And to you belongs a half of what your wives have, if
they die childless. And if they have children, a quarter of what they leave
shall be yours after payment of their debts and any legacies they may have
bequethed. Your wives shall inherit one quarter of what you leave, if you die
childless. If you have children they shall inherit one eighth, after payment of
your debts and any legacies you may have bequethed." (4:12)
The shares of the spouses are very clearly stated and need
no explanation. After the payment of debts and any bequethed legacy, these
shares shall be given from the total remaining estate of a deceased.
Kalālah
In the end, the shares of kalālah relatives have been
stated:
"If a man or a woman is made an heir on account of his [or
her] kalālah 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 this, 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 kalālah .
Originally, it is a nomen verbum (masdar) in the meaning of kalāl ie,
‘feebleness and frailty’. To quote a line from Āshā’s poetry:
Fa āa laitu lā ‘arthī lahā min kalālatin
("Then I swore that I shall not show any mercy on her
because of her feebleness and frailty.")
Mutammim Bin Nuvairah says:
Faka ‘annahā ba’dal kalālati wassurā
‘iljun tughālīhi qazūrum mulmi’ū
("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.
Zamakhsharī writes in his "Kashshāf":
"Kalālah 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: mā warithal majda ‘an kalālah ie, he could not become an heir to
nobility because of a distant relationship. Likewise, you say: mā samata ‘an
ayyin ie, he did not become quiet because he was unable to speak and mā kaffa
‘an jubnin ie, he did not stop because of cowardice. And kalālah is a nomen
verbum (masdar) meaning kalāl. Kalāl means loss of strength because of weakness.
Āshā says: fa āa laitu lā ‘arthī lahā min kalālatin ie, then I swore that I
shall not show any mercy on her because of her 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 zū kalālah . Similarly, you say falānum min
qarābatī ie, falānum min zawī qarābatī, and it can also be an adjective like
hajājah and faqāqah 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 Tirmāh:
yahuzzu silāhan lam yarith hu kalālatan
yashukku bihī minhā ghumūdhal maghābinī
("He is waving 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 mā sawwadatnī ‘āmirun ‘an kalālatin
("And the tribe of Amir did not make me the chief because
of a distant relationship.")
Acording to "Lisān-ul-Arab":
"The Arabs say lam yarith hu kalālah ie, owing to his
distant relationship he 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 verifid by many examples in the
pre-Islamic Arabic literature.
A Hamāsi poet, Yazīd Bin Al-Hakam, while admonishing his
son says:
Wal mar’u yabkhalu bil huqūqi wa lil kalālati mā yusīm
("Man shows miserliness in discharging his duties and
after his death, his distant relatives take away his animals which graze in the
forests.")
Azharī, has quoted a poet’s couplet:
Fa inna abal mar’i ahmā lahu
Wa maulal kalālati lā yaghdhabū
("If a person is oppressed and persecuted, it is his
father who, in his support, is infuriated the most. Kalālah relatives are not
infuriated to this extent in such a matter.")
To quote a Bedouin’s saying:
"I have a lot of wealth and my heirs are kalālah ie,
distant relatives." ("Lisān-ul-Arab", Vol 11, Pg 592)
Imām Muslim has quoted the following words in a hadith
narrated by Jabir:
"O Prophet of Allah ! only kalālah are my heirs."
(Kitab-ul-Farāidh, Chap 2)
Many traditions, in which Qur’ānic verses have been
explained, endorse this meaning. Abu Bakr Jassās writes in his "Ahkām-ul-Qur’ān
":
"In this regard, there are two narrations attributed to
Abu Bakr, Ali and Ibni Abbās. One of them says that all except the father and
the children are kalālah and Mohammad Bin Sālim reports from Shu’ba, who reports
from Ibni Mas’ūd that all except the father and the children are kalālah 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 Nisā from yūsī kumullāhu fī aulādikum, 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
wassīyyatin yūsī bihā 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
wasīyyatin yūsīna bihā au dain and mim ba’di wasīytin tūsūna bihā au dain. A
little contemplation shows that in all these instances the verb has been used in
its active voice and the antecedent of yūsī, yūsīna and tūsūna is clearly stated
in each of these sentences. But in the verse of kalālah , the verb has been used
passively. This departure tells us that the subject (fā’il) of the verb yūsā ie,
the legator in wa in kāna rajulun yūrathu kalālatan au imra’atan has not been
stated. Therefore, in this verse the word kalālah 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 yūrathu, in our consideration, is from the if’āl category
used in its passive form and kalālah is maf’ūl lahu (an accusative on account of
which something is done). Kāna here is an incomplete (nāqisah) and yūrathu is
its predicate (khabr). Rajulun and imra’atun are the nouns (‘asmā) of kāna.
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 (or her) kalālah relationship...’
Naturally, only the deceased person will have the right to
make someone his heir. Since the second object of the passive verb yūrathu has
not been stated, linguistic principles dictate that in the given context the
verse should only mean that a kalālah relative can be made an heir together with
the rightful heirs as well as in cases when a portion of the inheritance remains
after it has been distributed among the rightful heirs and also when none of
them is present.
Wa lahu akhun au ukhtun fa li kulli wāhidim minhumas
sudus. Fa in kānū akthara min zālika fa hum shurakāu fi thuluthi min ba’di
wasseyyatin yūsā bihā au dain ie, 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 (kalālah 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,
for example, 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 mudhāar. Wasseyyatim min Allah Wa Allāhu ‘Alīmun
Hakīm. 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
kalālah 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 unitentionally, 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 kalālah 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 kalālah
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 Nisā 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 whether it has still been left to the deceased
to make the brothers and sisters his heirs or to deprive them a share in his
wealth. While explaining verses 11-12 of Sūrah Nisā, 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 stated in words. 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
kalālah ; at this, this verse
of inheritance was revealed." (Muslim, Kitab-ul-Farāidh, Chap 2)
From the words ‘O Prophet of Allah all my heirs are
kalālah ; at this, this verse of inheritance was revealed’ of the above
tradition, it is evident that among the kalālah relatives the question was
particularly about brothers and sisters and the last verses of Sūrah Nisā 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,
our commentators have come across many difficulties in understanding qul lilāhu
yuftīkum fil kalālah . Here also, if only the answer is analysed, the meanings
the verse convey are very evident:
"People ask your pronouncement. Say: God enjoins you about
your kalālah 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
brother 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 lilāhu yuftīkum fil kalālah (God enjoins you about
your kalālah heirs ) is of the same style and pattern as yūsī kumullāhu fī
aulādikum (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 kalalāh relatives as the heirs of a deceased.
The article alif lām defines the word kalālah in this verse, which testifies to
the fact that the question concerns some specific relations among the kalālah
relatives and the answer shows that these specific relations are the deceased’s
brothers and sisters. Verse 12 of Sūrah Nisā has already empowered a person to
bequeth a part of his legacy in favour of kalalāh 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 kalālah
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 kalālah
; they merely impose 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 abwāhu a condition has been imposed that if the deceased
is issueless and only his parents are his heirs then they shall receive such and
such shares. 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 kalālah 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 kalālah 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 Nisā.
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
kānū ikhwatan rijālan wa nisān fa lizzakari mithlu hazzil unthayain (If there
are many brothers and sisters, the share of each male shall be equal to 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 that it is evident from verse 12
of Sūrah Nisā that in the absence of children, the brothers and sisters of a
deceased take their place. This particular verse of Sūrah Nisā 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, Kitab-ul-Farāidh, 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 bedouin 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 husband 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 is the same as that of the children
stated above.
4. If a deceased has brothers and sisters, whether or not
he has children, 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 eighth 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 or one sister then he or she 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
remaining legacy shall be distributed according to the principle li aulā rajulin
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 and
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.
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