27. Fara'id

Yahya related to me from Malik, "The generally agreed upon way ofdoing things among us and what I have seen the people of knowledgedoing in our city about the fixed shares of inheritance of childrenfrom the mother or father when one or other of them dies is that ifthey leave male and female children, the male takes the portion of twofemales. If there are only females, and there are more than two, theyget two thirds of what is left between them. If there is only one, shegets a half. If someone shares with the children, who has a fixedshare and there are males among them, the reckoner begins with theones with fixed shares. What remains after that is divided among thechildren according to their inheritance. "When there are nochildren, grandchildren through sons have the same position aschildren, so that grandsons are like sons and grand-daughters are likedaughters. They inherit as they inherit and they overshadow as theyovershadow. If there are both children and grandchildren through sons,and there is a male among the children, then the grandchildren throughsons do not share in the inheritance with him. "If there isno surviving male among the children, and there are two or moredaughters, the granddaughters through a son do not share in theinheritance with them unless there is a male who is in the sameposition as them in relation to the deceased, or further than them.His presence gives access to whatever is left over, if any, to whoeveris in his position and whoever is above him of the granddaughtersthrough sons. If something is left over, they divide it among them,and the male takes the portion of two females. If nothing is leftover, they have nothing. "If the only descendant is adaughter, she takes half, and if there are one or more grand-daughtersthrough a son who are in the same position to the deceased, they sharea sixth. If there is a male in the same position as the granddaughtersthrough a son in relation to the deceased, they have no share and nosixth . "If there is a surplus after the allotting of sharesto the people with fixed shares, the surplus goes to the male andwhoever is in his position and whoever is above him of the femaledescendants through sons. The male has the share of two females. Theone who is more distant in relationship than grandchildren throughsons has nothing. If there is no surplus, they have nothing. That isbecause Allah, the Blessed, the Exalted, said in His Book, 'Allahcharges you about your children that the male has the like of theportion of two females. If there are more than two women they have twothirds of what is left. If there is one, she has a half.' (Sura 4 ayat10) Malik said, "The inheritance of a husband from a wife when sheleaves no children or grandchildren through sons is a half. If sheleaves children or grandchildren through sons, male or female, by herpresent or previous husbands, the husband has a quarter after bequestsor debts. The inheritance of a wife from a husband who does not leavechildren or grandchildren through sons is a quarter. If he leaveschildren or grandchildren through sons, male or female, the wife hasan eighth after bequests and debts. That is because Allah, theBlessed, the Exalted! said in His Book, 'You have a half of what yourwives leave if they have no children. If they have children, you havea fourth of what they leave after bequests and debts. They have afourth of what you leave if you have no children. If you havechildren, they have an eighth after bequests or debts.' " (Sura4ayat11). Malik said, "The generally agreed on way of doing things among usabout which there is no dispute and what I have seen the people ofknowledge in our city doing is that when a father inherits from a sonor a daughter and the deceased leaves children, or grandchildrenthrough a son, the father has a fixed share of one sixth. If thedeceased does leave any children or male grandchildren through a son,the apportioning begins with those with whom the father shares in thefixed shares. They are given their fixed shares. If a sixth or more isleft over, the sixth and what is above it is given to the father, andif there is less than a sixth left, the father is given his sixth as afixed share, (i.e. the other shares are adjusted.) "Theinheritance of a mother from her child, if her son or daughter diesand leaves children or male or female grandchildren through a son, orleaves two or more full or half siblings is a sixth. If the deceaseddoes not leave any children or grandchildren through a son, or two ormore siblings, the mother has a whole third except in two cases. Oneof them is if a man dies and leaves a wife and both parents. The wifehas a fourth, the mother a third of what remains, (which is a fourthof the capital). The other is if a wife dies and leaves a husband andboth parents. The husband gets half, and the mother a third of whatremains, (which is a sixth of the capital). That is because Allah, theBlessed, the Exalted, says in His Book, 'His two parents each have asixth of what he leaves if he has children. If he does not havechildren, and his parents inherit from him, his mother has a third. Ifhe has siblings, the mother has a sixth.' (Sura 4 ayat 11). The sunnais that the siblings be two or more." Malik said, "The generally agreed upon way of doing things amongus is that maternal half-siblings do not inherit anything when thereare children or grandchildren through sons, male or female. They donot inherit anything when there is a father or the father's father.They inherit in what is outside of that. If there is only one male orfemale, they are given a sixth. If there are two, each of them has asixth. If there are more than that, they share in a third which isdivided among them. The male does not have portion of two females.That is because Allah, the Blessed, the Exalted, says in His Book, 'Ifa man or woman has no direct heir, and he has a brother or sister, bythe mother, each of them has a sixth. If there are more than two, theyshare equally in a third.' " (Sura 4 ayat 12). Malik said, "The generally agreed on way of doing things among usis that full siblings do not inherit anything with sons nor anythingwith grandsons through a son, nor anything with the father. They doinherit with the daughters and the granddaughters through a son whenthe deceased does not leave a paternal grandfather. Any property thatis left over, they are in it as paternal relations. One begins withthe people who are allotted fixed shares. They are given their shares.If there is anything left over after that, it belongs to the fullsiblings. They divide it between themselves according to the Book ofAllah, whether they are male or female. The male has a portion of twofemales. If there is nothing left over, they have nothing. "If the deceased does not leave a father or a paternal grandfather orchildren or male or female grandchildren through a son, a single fullsister gets a half. If there are two or more full sisters, they gettwo thirds. If there is a brother with them, sisters, whether one ormore, do not have a fixed share. One begins with whoever shares in thefixed shares. They are given their shares. Whatever remains after thatgoes to the full siblings. The male has the portion of two femalesexcept in one case, in which the full siblings have nothing. Theyshare in this case the third of the half-siblings by the mother. Thatcase is when a woman dies and leaves a husband, a mother, half-siblings by her mother, and full siblings. The husband has a half. Themother has one sixth. The half-siblings by the mother have a third.Nothing is left after that, so the full siblings share in this casewith the half-siblings by the mother in their third. The male has theportion of two females in as much as all of them are siblings of thedeceased by the mother. They inherit by the mother. That is becauseAllah, the Blessed, the Exalted, said in His Book, 'If a man or awoman has no direct heir and he has a brother or a sister, each one ofthe two gets a sixth. If there are more than that, they share equallyin the third. ' (Sura 4 ayat 12) . They therefore share in this casebecause all of them are siblings of the deceased by the mother." Malik said, "The generally agreed on wayof doing things among usis that when there are no full siblings with them, half-siblings bythe father take the position of full siblings. Their males are likethe males of the full siblings, and their females are like theirfemales except in the case where the half-siblings by the mother andthe full siblings share, because they are not offspring of the motherwho joins these." Malik said, "If there are both fullsiblings and half-siblings by the father and there is a male among thefull siblings none of the half-siblings by the father have anyinheritance. If there is one or more females in the full siblings andthere is no male with them, the one full sister gets a half, and thehalf sister by the father gets a sixth, completing the two-thirds. Ifthere is a male with the half-sisters by the father, they have noshare. The people of fixed shares are given their shares and if thereis something left after that it is divided between the half-siblingsby the father. The male has the portion of two females. If there isnothing left over, they get nothing. If the full siblings consist oftwo or more females, they get two-thirds, and the half-sisters by thefather get nothing with them unless there is a half-brother by thefather with them. If there is a half-brother by the father with them,the people of fixed shares are given their shares and if there issomething left over after that, it is divided between the half-siblings by the father. The male gets the portion of two females. Ifthere is nothing left over, they get nothing. Half-siblings by themother, full-siblings, and half-siblings by the father, each have asixth (when they are onlyone). Two and more share a third. The malehas the same portion as the female. They are in the same position init." Yahya related to me from Malik from Yahya ibn Said that he hadheard that Muawiya ibn Abi Sufyan wrote to Zayd ibn Thabit asking himabout the grandfather. Zayd ibn Thabit wrote to him, "You have writtento me asking me about the grandfather. Allah knows best. That is partof what is only determined by the amirs, i.e. the khalifs. I waspresent with two khalifs before you who gave the grandfather a halfwith one sibling, and a third with two. If there were more siblings,they did not decrease his third." Yahya related to me from Malik from Ibn Shihab from Qabisa ibnDhu'ayba that Umar ibn al-Khattab gave the grandfather "what peoplegive him today." Yahya related to me from Malik that he had heard that Sulaymanibn Yasar said, ''Umar ibn al-Khattab, Uthman ibn Affan, andZayd ibnThabit gave the grandfather a third with full siblings". Malik said,"The generally agreed on way of doing things among us and what I haveseen the people of knowledge in our city doing is that the paternalgrandfather does not inherit anything at all with the father. He isgiven a sixth as a fixed share with the son and the grandson through ason. Other than that, when the deceased does not leave a mother or apaternal aunt, one begins with whoever has a fixed share, and they aregiven their shares. If there is a sixth of the property left over, thegrandfather is given a sixth as a fixed share." Malik said,"When someone shares with the grandfather and the full siblings in aspecified share, one begins with whoever shares with them of thepeople of fixed shares. They are given their shares. What is left overafter that belongs to the grandfather and the full siblings. Then onesees which is the more favourable of two alternatives for the portionof the grandfather. Either a third is allotted to him and the siblingsto divide between them, and he gets a share as if he were one of thesiblings, or else he takes a sixth from all the capital. Whichever isthe best portion for the grandfather is given to him. What is leftafter that, goes to the full siblings. The male gets the portion oftwo females except in one particular case. The division in this caseis different from the preceding one. This case is when a woman diesand leaves a husband, mother, full sister and grandfather. The husbandgets a half, the mother gets a third, the grandfather gets a sixth,and the full sister gets a half. The sixth of the grandfather and thehalf of the sister are joined and divided into thirds. The male getsthe share of two females. Therefore, the grandfather has two thirds,and the sister has one third." Malik said, "The inheritanceof the half-siblings by the father with the grandfather when there areno full siblings with them, is like the inheritance of the fullsiblings (in the same situation). The males are the same as theirmales and the females are the same as their females. When there areboth full siblings and half-siblings by the father, the full siblingsinclude in their number the number of half-siblings by the father, tolimit the inheritance of the grandfather, i.e., if there was only onefull sibling with the grandfather. They would share, after theallotting of the fixed shares, the remainder of the inheritancebetween them equally. If there were also two half-siblings by thefather, their number is added to the division of the sum, which wouldthen be divided four ways. A quarter going to the grandfather andthree-quarters going to the full siblings who annex the sharestechnically allotted to the half-siblings by the father. They do notinclude the number of half-siblings by the mother, because if therewere only half-siblings by the father they would not inherit anythingwith the grandfather and all the capital would belong to thegrandfather, and so the siblings would not get anything after theportion of the grandfather. "It belongs to the full siblingsmore than the half-siblings by the father, and the half-siblings bythe father do not get anything with them unless the full siblingsconsist of one sister. If there is one full sister, she includes thegrandfather with the half-siblings by her father in the division,however many. Whatever remains for her and these half-siblings by thefather goes to her rather than them until she has had her completeshare, which is half of the total capital. If there is surplus beyondhalf of all the capital in what she and the half-siblings by thefather acquire it goes to them. The male has the portion of twofemales. If there is nothing left over, they get nothing." Yahya related to me from Malik from Ibn Shihab from Uthman ibnIshaq ibn Kharasha that Qabisa ibn Dhu'ayb said, "A grandmother cameto Abu Bakr as-Siddiq and asked him for her inheritance. Abu Bakr saidto her, 'You have nothing in the Book of Allah, and I do not know thatyou have anything in the sunna of the Messenger of Allah, may Allahbless him and grant him peace. Go away therefore, until I havequestioned the people.' (i.e.the Companions). He questioned thepeople, and al-Mughira ibn Shuba said, 'I was present with theMessenger of Allah, may Allah bless him and grant him peace, when hegave the grandmother a sixth.' Abu Bakr said, 'Was there anybody elsewith you?' Muhammad ibn Maslama al-Ansari stood up and said the likeof what al-Mughira said. Abu Bakr as-Siddiq gave it to her. Then theother grandmother came to Umar ibn al-Khattab and asked him for herinheritance. He said to her, "You have nothing in the Book of Allah,and what has been decided is only for other than you, and I am not oneto add to the fixed shares, other than that sixth. If there are two ofyou together, it is between you. If eitherof you is left alone withit, it is hers." Yahya related to me from Malik from Yahya ibn Said that al-Qasimibn Muhammad said, "Two grandmothers came to Abu Bakr asSiddiq, and hewanted to give the sixth to the one who was from the mother's side,and a man of the Ansar said, 'What? Are you omitting the one from whomhe would inherit if she died while he was alive?' Abu Bakr divided thesixth between them.~ Yahya related to me from Malik from Abdu Rabbih ibn Said that AbuBakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham only gave a fixedshare to two grandmothers (together). Malik said, "Thegenerally agreed on way of doing things among us in which there is nodispute and which I saw the people of knowledge in our city doing, isthat the maternal grandmother does not inherit anything at all withthe mother. Outside of that, she is given a sixth as a fixed share.The paternal grandmotherdoes not inherit anything along with themother or the father. Outside of that she is given a sixth as a fixedshare." If both the paternal grandmother and maternal grandmother arealive, and the deceased does not have a father or mother outside ofthem, Malik said,."I have heard that if the maternal grandmother isthe nearest of the two of them, then she has a sixth instead of thepaternal grandmother. If the paternal grandmother is nearer, or theyare in the same position in relation to the deceased, the sixth isdivided equally between them." Malik said, "None of thefemale grand-relations except for these two has any inheritancebecause I have heard that the Messenger of Allah, may Allah bless himand grant him peace, gave the grandmother inheritance, and then AbuBakr asked about that until someone reliable related from theMessenger of Allah, may Allah bless him and grant him peace, that hehad made the grandmother an heir and given a share to her. Anothergrandmother came to Umar ibn al-Khattab, and he said, 'I am not one toadd to fixed shares. If there are two of you together, it is betweenyou. If either of you is left alone with it, it is hers.' " Maliksaid, "We do not know of anyone who made other than the twograndmothers heirs from the beginning of Islam to this day." Yahya related to me from Malik from Zayd ibn Aslam that Umar ibnal-Khattab asked the Messenger of Allah, may Allah bless him and granthim peace, about someone who died without parents or offspring, andthe Messenger of Allah, may Allah bless him and grant him peace, saidto him, "The ayat which was sent down in the summer at the end of theSurat an-Nisa (Sura 4) is enoughfor you." Malik said, "Thegenerally agreed on way of doing things among us, in which there is nodispute, and which I saw the people of knowledge in our city doing, isthat the person who leaves neither parent or offspring can be of twotypes. As for the kind described in the ayat which was sent down atthe beginning of the Surat an-Nisa in which Allah, the Blessed, theExalted! said, 'If a man or a woman has no direct heir, but has abrother or a sister by the mother, each of the two has a sixth. Ifthere are more than that, they share equally in a third.' (Sura 4 ayat12) This heirless one does not have heirs among his mother's siblingssince there are no children or parents. As for the other kinddescribed in the ayat which comes at the end of the Surat an-Nisa,Allah, the Blessed, the Exalted, said in it, 'They will ask you for adecision. Say, "Allah gives you a decision about the indirect heirs.If a man perishes having no children, but he has a sister, she shallreceive a half of what he leaves, and he is her heir if she has nochildren. If there are two sisters, they shall receive two-thirds ofwhat he leaves. If there are brothers and sisters, the male shallreceive the portion of two females. Allah makes clear to you that youmight not go astray. Allah has knowledge of everything" ' " (Sura 4ayat 176). Malik said, "If this person without direct heirs(parents) or children has siblings by the father, they inherit withthe grandfather from the person without direct heirs. The grandfatherinherits with the siblings because he is more entitled to theinheritance than them. That is because he inherits a sixth with themale children of the deceased when the siblings do not inheritanything with the male children of the deceased. How can he not belike one of them when he takes a sixth with the children of thedeceased? How can he not take a third with the siblings while thebrother's sons take a third with them? The grandfather is the one whoovershadows the half-siblings by the mother and keeps them frominheriting. He is more entitled to what they have because they areomitted for his sake. If the grandfather did not take that third, thehalf-siblings by the mother would take it and would take what does notreturn to the half-siblings by the father. The half-siblings by themother are more entitled to that third than the half-siblings by thefather while the grandfather is more entitled to that than the half-siblings by the mother." Yahya related to me from Malik from Muhammad ibn Abi Bakr ibnMuhammad ibn Amribn Hazm that Abdar-Rahman ibn Hanthala az-Zurqi wasinformed by a mawla of Quraysh,who used to be known as Ibn Mursi, thathe was sitting with Umar ibn al-Khattab, and when they had prayeddhuhr, he said, "Yarfa! Bring that letter! (a letter which he hadwritten about the paternal aunt.) We asked about her and asked forinformation about her." Yarfa brought it to him. He called for a smallvessel or a drinking-bowl in which there was water. He erased theletter in it. Then he said, "Had Allah approved of you as an heir, wewould have confirmed you. Had Allah approved of you, we would haveconfirmed you." Yahya related to me from Malik that Muhammad ibn Abi Bakr ibnHazm heard his father say many times, ''Umar ibn al-Khattab used tosay, 'It is a wonder that the paternal aunt is inherited from and doesnot inherit.' " Malik said, "The generally agreed on way of doing things amongus, in which there is no dispute, and which I saw the people ofknowledge in our city doing, about paternal relations is that fullbrothers are more entitled to inherit than half-brothers by the fatherand half-brothers by the father are more entitled to inherit than thechildren of the full brothers. The sons of the full brothers are moreentitled to inherit than the sons of the half-brothers by the father.The sons of the half-brothers by the father are more entitled toinherit than the sons of the sons of the full brothers. The sons ofthe sons of the half-brothers by the father's side are more entitledto inherit than the paternal uncle, the full brother of the father.The paternal uncle, the full brother of the father, is more entitledto inherit than the paternal uncle, the half-brotherof the father onthe father's side. The paternal uncle, the half-brother of the fatheron the father's side is more entitled to inherit than the sons of thepaternal uncle, the full brother of the father. The son of thepaternal uncle on the father's side is more entitled to inherit thanthe paternal great uncle, the full brother of the paternalgrandfather." Malik said, "Everything about which you arequestioned concerning the inheritance of the paternal relations islike this. Trace the genealogy of the deceased and whoever among thepaternal relations contends for inheritance. If you find that one ofthem reaches the deceased by a father and none of them except himreaches him by a father, then make his inheritance to the one whoreaches him by the nearest father, rather than the one who reaches himby what is above that. If you find that they all reach him by the samefather who joins them, then see who is the nearest of kin. If there isonly one half-brother by the father, give him the inheritance ratherthan more distant paternal relations. If there is a full brother andyou find them equally related from a number of fathers or to oneparticular father so that they all reach the genealogy of the deceasedand they are all half-brothers by the father or full brothers, thendivide the inheritance equally among them. If the parent of one ofthem is an uncle (the full-brother of the father of the deceased) andwhoever is with him is an uncle (the paternal half brother of thefather of the deceased), the inheritance goes to the sons of the fullbrother of the father rather than the sons of the paternal half-brother of the father. That is because Allah, the Blessed, theExalted, said, 'Those related by blood are nearer to one another inthe Book of Allah, surely Allah has knowledge of everything.' " Malik said, "The paternal grandfather, is more entitled to inheritthan sons of the full-brother, and more entitled than the uncle, thefull brother of the father. The son of the father's brother is moreentitled to inherit from mawali retainers (freed slaves) than thegrandfathers." Malik said, "The generally agreed on way of doing things among usin which there is no dispute and which I saw the people of knowledgein our citydoing, is that the child of the half-sibling by the mother,the paternal grandfather, the paternal uncle who is the maternal half-brother of the father, the maternal uncle, the great-grandmother whois the mother of the mother's father, the daughter of the full-brother, the paternal aunt, and the maternal aunt do not inheritanything by their kinship." Malik said, "The woman who is thefurthest relation of the deceased of those who were named in thisbook, does not inherit anything by her kinship, and women do notinherit anything apart from those that are named in the Qur'an. Allah,the Blessed, the Exalted, mentioned in His Book the inheritance ofthemother from her children, the inheritance of the daughters from theirfather, the inheritance of the wife from her husband, the inheritanceof the full sisters, the inheritance of the half-sisters by the fatherand the inheritance of the half-sisters by the mother. The grandmotheris made an heir by the example of the Prophet, may Allah bless him andgrant him peace, made about her. A woman inherits from a slave shefrees herself because Allah, the Blessed, the Exalted, said in HisBook, 'They are your brothers in the deen and your mawali.' " Yahya related to me from Malik from Ibn Shihab from Ali ibnHusayn ibn Ali from Umar ibn Uthman ibn Affan from Usama ibn Zayd thatthe Messenger of Allah, may Allah bless him and grant him peace, said,"A muslim does not inherit from a kafir." Yahya related to me from Malik from Ibn Shihab that Ali ibnHusayn ibn Ali ibn Abi Talib told him that Aqil and Talib inheritedfrom Abu Talib, and Ali did not inheritfrom him. Ali said, "Because ofthat, we have given up our portion of ash Shab." (A house belonging toBanu Hashim). Yahya related to me from Malik from Yahya ibn Said from Sulaymanibn Yasar that Muhammad ibn al-Ashath told him that he had a christianor jewish paternal aunt who died. Muhammad ibn al-Ashath mentionedthat to Umar ibn al-Khattab and said to him, "Who inherits from her?"Umar ibn al-Khattab said to him, "The people of her deen inherit fromher." Then he went to Uthman ibn Affan, and asked him about that.Uthman said to him, "Do you think that I have forgotten what Umar ibnal-Khattab said to you? The people.of her deen inherit from her." Yahya related to me from Malik from Yahya ibn Said from Ismailibn Abi Hakim that Umar ibn Abd al-Aziz freed a christian who thendied. Ismail said, ''Umar ibn Abd al-Aziz ordered me to put hisproperty in the bayt al-mal." Yahya related to me from Malik from a reliable source of his whohad heard Said ibn al-Musayyab say, ''Umar ibn al-Khattab refused tolet anyone inherit from the non-arabs except for one who was bornamong the arabs." Malik said, "If a pregnant woman comes fromthe land of the enemy and gives birth in arab land so that he is her(an arab) child, he inherits from her if she dies, and she inheritsfrom him if he dies, by the Book of Allah." Malik said, "Thegenerally agreed on way of doing things among us and the sunna inwhich there is no dispute, and what I saw the people of knowledge inour city doing, is that a Muslim does not inherit from a kafir bykinship, clientage (wala'), or maternal relationship, nor does he (theMuslim) overshadow any (of the kafirs) from his inheritance. Malik said, "Similarly, someone who forgoes his inheritance when he isthe chief heir does not overshadow anyone from his inheritance." Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahmanfrom more than one of the people of knowledge of that time, that thosewho were killed on the Day of the Camel, the Day of Siffin, the Day ofal-Harra, and the Day of Qudayd did not inherit from each other. Noneof them inherited anything from his companion unless it was known thathe had been killed before his companion. Malik said, "That isthe way of doing things about which there is no dispute, and whichnone of the people of knowledge in our city doubt. The procedure withtwo mutual heirs who are drowned, or killed in another way, when it isnot known which of them died first is the same - neither of theminherits anything from his companion. Their inheritance goes towhoever remains of their heirs. They are inherited from by theliving." Malik said, "No one should inherit from anyone elsewhen there is doubt, and one should only inherit from the other whenthere is certainty of knowledge and witnesses. That is because a manand his mawla whom his father has freed might die at the same time.The sons of the free man could say, 'Our father inherited from themawla.' They should not inherit from the mawla without knowledge ortestimony that he died first. The living people most entitled to hiswala' inherit from him." Malik said, "Another example is twofull brothers who die. One of them has children and the other doesnot. They have a half-brother by their father. It is not known whichof them died first, so the inheritance of the childless one goes tohis half-brother by the father. The children of the full-brother getnothing." Malik said, "Another example is when a paternalaunt and the son of her brother die, or else the daughter of thebrother and her paternal uncle. It is not known which of them diedfirst. The paternal uncle does not inherit anything from the daughterof his brother, and the son of the brother does not inherit anythingfrom his paternal aunt." Yahya related to me from Malik that he had heard that Urwa ibnaz-Zubayr said about the child of lian and the child of fornication,that if they died, the mother inherited her right from them accordingto the Book of Allah, the Mighty, the Majestic! The siblings by themother had their rights. The rest was inherited by the former mastersof the mother if she was a freed slave. If she was a free woman byorigin, she inherited her due and the siblings by the mother inheritedtheir due, and the rest went to the Muslims. Malik said, "Iheard the same as that from Sulayman ibn Yasar." Malik said,"That is what I saw the people of knowledge in our city doing."