The knowledge that teaches who the property left by the deceased person
will be given to and how it will be distributed is called ’Ilm-i farâid (the knowledge of farâid). What
Allâhu ta’âlâ declares most clearly and most extensively in the Qur’ân is how
to distribute the inheritance left by the deceased. Because most of its
procedures have been commanded as fard, it has been termed Ilm-i farâid (the knowledge of fards) as a whole.
A hadîth, conveyed by Ibn Mâja and Dâra Qutnî ‘rahmatullâhi ta’âlâ ’alaihim
ajmâ’in’ in the epitome of Tadhkirat-al Qurtubî,
declares, “Try to learn the knowledge of farâid!
Teach this knowledge to the youth! The knowledge of farâid is half of
(all) religious knowledge. It will be this
knowledge that my Umma will forget first.”
The author of Durr-ul muntaqâ
‘rahmatullâhi ta’âlâ ’aleyh’ says: “A person who is lost is judged to be dead.
A foetus which has been killed in its mother’s womb and for which the diyat has
been paid is judged to be dead. The property of these two is distributed to
their inheritors. A heir which was in its mother’s womb at the time of death is
judged to have been alive. This foetus being assumed to have been a boy or a
girl, the shares it would be given in both cases are separately calculated in
accordance with (the knowledge of) farâid, the share that it is found out would
be more is reserved and the rest is divided among the other inheritors. If this
foetus is born alive in two years’ time, it becomes an inheritor even if it
dies immediately, and it leaves an inheritance when it dies.” In Ibni Âbidîn and Durr-ul-Muntaqâ
it is said, “If one of two brothers dies in China and the other brother dies in
Andalusia[1] at
sunrise the same day, the one who dies in Andalusia will inherit from the
other. For [the earth rotates from west to east], the sun rises earlier in the
east.
I -
Expenses for washing, shrouding, burying and human debts, respectively, are set
apart and distributed from the property left by the deceased. The rest of the
property is evaluated according to the market and divided into three. The first
part is spent for fulfilling those orders of the deceased that are compatible
with the Sharî’a. The other two parts are distributed according to their value,
or they are sold and the money is distributed to the
---------------------------------
[1] Spain.
(1) First, the twelve people called the ashâb-i farâid are given their
dues as prescribed in Qur’ân al-kerîm. These dues are also termed fard. Four of them are male.
(2)
The property remaining from the ashâb-i farâid is given to the closest of those
relatives of the deceased that are called Asaba. The names of the asaba will be
given later. If there are no asaba the rest of the property also is distributed
to the ashâb-i farâid. But the husband or the wife is not given a share at this
time.
(3)
If none of the ashâb-i farâid or the asaba is existent, it will be given to the
relatives called zawil-arhâm, which consists of five classes; their names are
written towards the end of the twenty-third chapter.
(4)
If there are no zawil-arhâm either, it is given to a man called mawlal-muwâlât.
[See article ten]. If this does not exist either, it is given to the person who
the deceased has claimed to be his relative through someone, -e.g. by saying,
“He is my brother”-, but who is not avowed by the person claimed to have
mediated in the kinship.
(5)
If none of the inheritors mentioned above exists, the remaining two-thirds of
the inheritance also is spent for the fulfilment of his orders. If he died
intestate, the Bayt-ul-mâl takes the property, even if he is a zimmî.
II -
Qur’ân al-kerîm classifies the ashâb-i farâid into six groups and allots each
group’s share [fard] as follows:
NISF: After the amount enjoined in the will is
set apart from the property of inheritance, half of the rest is given to one of
the following five kinds of people, with the proviso that, if there is only one
person in one of the first four kinds, she and the husband (of the deceased)
will get it. Two of these four kinds cannot exist at the same time.
Daughter:
If the deceased has no son(s), the daughter gets that half.
Son’s
daughter: If the deceased does not have a (living) child [son or daughter] or a
grandson through his son she gets that half.
Sister:
If the deceased does not have a (living) child(ren), grandchild(ren) by a son,
brother(s), or father, she gets that half.
Paternal
sister: She gets that half instead of the sister if the deceased does not have
a sister.
Husband: He gets that half if the deceased does not have children or
grandchildren by a son.
If one of the first four of these five kinds of poeple exists together
with her brother, she cannot get her fard. She becomes only an asaba. When she
becomes an asaba, the brother gets twice as much as the sister. Reasons for
this are explained in the five hundred and seventy-sixth page of the Turkish
original version, under the heading Nafaka ve Komþu
Haklarý (Maintenance and Neighbours’ Rights). If there are more than
one people in one of these four kinds, instead of the nisf they get the
thuluthân (two-thirds) and share it.
RUBU’: Are those who will get one-fourth. They
are two people:
Husband: If the deceased has children or grandchildren by a
son, the husband gets one-fourth.
Wife: If the deceased has no children or grandchildren by a
son, the wife gets the rubu’ (one-fourth).
Husband and wife inherit from each other’s property during the wife’s
time of ’iddat[1] in
case of talâq-i rij’î[2] .
THUMUN: Gets one-eighth, and is only one person:
Wife: If the deceased has children or grandchildren by a son,
the wife gets one-eighth.
THULUTHÂN: Is two-thirds; when there are more than
one people in one of the groups whose share is nifs (half), with the exception
of the husband, they get equal shares from the two-thirds.
THULUTH is one-third and is given to two people:
Mother: If the deceased does not have children, grandchildren
by a son, and (in addition to this situation) if there is more than one of all
kinds of brothers and sisters, the mother gets one-third. If the deceased has a
father and a husband or a wife also, the mother gets one-third of what remains
from the husband or wife and the father. If the deceased has grandfather(s)
instead of a father, the mother gets one-third of the whole property.
Uterine brothers and sisters are called benûl-akhyâf.
When they are more than one, they share the one-third among
---------------------------------
[1] A prescribed space of time; the space of time within which canonically a woman cannot marry a man after separation from a former spouse.
[2] A kind of divorce.
themselves. Brothers and sisters get equal
shares. If the deceased has children or grandchildren by a son or a father or a
grandfather, the benûl-akhyâf cannot
inherit anything.
SUDUS is one-sixth, and it is given to seven
people:
Father:
When the deceased has children or grandchildren by a son, the father gets
one-sixth.
Mother:
If the deceased has children or grandchildren by a son or more than one brother
or sister of any kind, the mother gets one-sixth.
Sahîh grandparents[1] : If
the deceased does not have a (living) father but has a son(s), the grandfathers
and grandmothers get one-sixth.
Granddaughters
by a son get one-sixth and share it when they exist with the one daughter of
the deceased.
Paternal
sister gets the sudus when she exists with the one daughter of the deceased.
Uterine
brother or sister: When the deceased has one uterine brother or sister, he or
she gets the sudus (one-sixth).
Warning: When the father is to receive one-sixth
first the father receives the sudus (one-sixth) and then the mother receives
one-third of the remainder. If the mother does not exist, the grandmothers
still receive the sudus; they cannot replace the mother and receive the
thuluth.
3 -
Male inheritors are ten, and nine of them are asaba. The hushand cannot be an
asaba:
Father:
If the deceased does not have children or grandchilden by a son, the father
becomes only an asaba. If the deceased has a daughter or a granddaughter by a
son, the father is included both in the ashâb-i farâid and in the asaba. If he
(the deceased) has a son or a grandson by a son, he (the deceased’s father)
gets only the sudus.
Sahîh grandfathers: Are those grandfathers who are not linked with the deceased by mother. They become asaba instead of the father when the deceased does not have children or a father. If the deceased has a son, such a grandfather gets only the sudus in lieu of the father. If the deceased has a father, they cannot be inheritors at all
---------------------------------
[1] Jedd-i sahîh: ancestor(s) in the direct male line.
Son:
Is the most emphatic asaba; when there is a son the other asabas cannot be
asaba at all. If a child is expected to be born, it is accepted as male and its
share is reserved accordingly.
Son’s
son: When the deceased does not have a son, the son’s son becomes the most
emphatic asaba and the asabas lapse from being asaba.
Brother:
Is of three sorts: shaqîq, only by father, only by mother. Shaqîq, that is,
brother of the same mother and father, brother uterine or brother of the same
father becomes asaba when the deceased does not have a son, son’s son, father
or grandfathers.
Brother’s
son, paternal uncles and their sons, and, if the deceased was a manumitted
slave or jâriya, the man who manumitted him or her, respectively, become asaba
if there are not any asabas prior to them.
Husband:
Is included only in the ashâb-i farâid. He does not become asaba.
4 -
Female inheritors are of seven types: The deceased’s daughter, granddaughter by
a son, mother, sahîh grandmothers, sisters of three kinds, wife, and, if the
deceased was a slave or a jâriya, the woman who manumitted him or her. When
there are more than one wives, they share one fard.
5 -
If the deceased has more than one daughters, his (or her) granddaughters by a
son cannot become inheritors. But if he (or she) does not have sons but has a
grandson by a son also, his (or her) son’s daughters become asaba together with
the grandson, and what remains from the daughters is distributed to the son’s
sons and son’s daughters, each grandson being given twice the share of each
granddaughter. If the deceased has a son, the son’s children cannot be
inheritors.
6 - Benûl-a’yân consists of
brothers of the same mother and father, who are also termed shaqîq, and Benûl’allât, that is, brothers of the same father
but different mothers; these cannot be inheritors when one of the son, son’s
son, father and grandfather exists (is alive).
Sisters
can be only asaba when the deceased has a daughter or a granddaughter by a son
or they (sisters) have a brother. They cannot be inheritors if the deceased has
a son, a grandson by a son, father or a grandfather.
If
the deceased has more than one shaqîqas, that is, sisters of the same mother
and father, his (or her) sisters of the same father
only cannot be inheritors when they are
without brothers of the same kind. But if the deceased has also brothers of the
same father, these cause the sisters of the same father to become asaba, and
the property remaining from the sisters of the deceased (shaqîqas) is
distributed to his (or her) brothers and sisters from the father, the brothers
being given twice the amount (received by the sisters).
Sisters
from the same father can be only asaba when the deceased has a daughter or
granddaughter by a son or when they (these sisters) have a brother; but they
cannot be inheritors if the deceased has two sisters (shaqîqas) or a son or a
grandson by a son or father. The dead person’s having (living) brothers and
sisters of the same father and mother does not exclude his (or her) brothers
and sisters uterine from being heirs. In other words, the benûl-akhyâf
(brothers and sisters uterine) do not lapse from being heirs on account of the
benûl-a’yân.
7 -
The dead person’s son and daughter from his wife or jâriya, his (or her, if the
deceased is a woman) father and mother, husband and wife are never deprived of
the inheritance. Of the asabas other than these, a person who is related to the
deceased through one other person cannot be a heir if that other person exists.
Those who are closer to the deceased deprive those who are farther away. [For
example, when a sister exists as an asaba, the paternal uncle or the brother’s
son cannot be asaba]. Only, brothers and sisters uterine are exempt from this.
One who is related (to the deceased) through two lines deprives one who is
related through one line. For example, brothers of (only) the same father
cannot inherit in case a brother of the same father and mother exists. Sisters
of (only) the same father, when they are asaba, lapse from being asaba when the
deceased has a brother. Likewise, when the deceased has a daughter, she causes
the brother of (only) the same father to lapse.
The
ashâb-i farâid can get their shares from the inheritance according to the
conditions written on the previous page.
8 -
All the jaddas, that is, grandmothers, are excluded from the inheritance when
the deceased has a mother. The jaddas in the male line are excluded also when
there is a father. However, existence of grandfathers does not exclude them.
9 -
Slaves, the deceased’s murderer (if the deceased is the victim of a murder),
non-Muslims, renegades cannot be heirs. [Then, if a Muslim’s progeny are
supercilious about harâms and fards, e.g. namâz, ghusl ablution, fasting, if
they do not feel
penitent for their sins, they become
renegades and they cannot inherit from a Muslim]. An illegitimate child
disavowed by the father cannot be a heir to his (or her) father. However, it is
permissible for a Muslim to will his property to a disbeliever and for a
disbeliever to a Muslim.
10 - If a zimmî [a non-Muslim countryman] or a harbî [a foreign
disbeliever] is converted to Islam with the help of a Muslim and accepts that
Muslim as his guardian, that is, commits himself under his command, and if that
Muslim accepts to undertake the payment of his debt, that Muslim becomes his Mawlal-muwâlât.
In
our explanation of the land laws within the subject of zakât of the produce of
the earth, in the first chapter, we have written that there are four kinds of
land. The first kind subsumes, as we have explained, those land areas that are
the people’s property. When the owner of such land dies, the land may be sold
and the money may be spent for the payment of the owner’s debts. One-third of
the rest is spent for the fulfilment of his will. And two-thirds is distributed
to his heirs in prescribed shares. The second kind consists of those mîrî land
areas, which belong to the Beyt-ul-mâl. They are rented out with title deeds to
people in return for ready money. Such land does not become the holder’s
property. When the holder dies it is not sold for the payment of his debts or
for the fulfilment of his will. It does not become an inheritance for his
heirs. It is rented out to someone else. But, as a favour to the people, the
State gave to the owner of a mîrî land area the right to transfer it to someone
else in return for money or present it and it could be transferred to his
children without ready money when he died. The title deed’s being transferred
to his children was not a legacy; it was the State’s favour; the land did not
become the heirs’ property, yet it was rented out to them. According to the
fifty-fourth and the following chapters of the law, when the holder of the
title deed died the land was distributed equally to his sons and daughters. If
he did not have children, it was given to his grandchildren; if they did not
exist, to his father; and if he did not exist either, to his mother, free of
charge. But, in giving the right of transfer to the father or mother,
one-fourth was given to the husband or wife (depending on the deceased’s sex)
and then three-fourths was given to the father or mother. The husband or the
wife could not get a share from the mîrî land if the deceased had children or
grandchildren. The grandchildren of the deceased had shares equal to his (or
her)
children’s. There is no mîrî land today;
all such land has become the people’s property. So, such land has to be divided
like other property of inheritance now. Please see the final parts of the books
Berîqa and Hadîqa!
Every Muslim should make his testament during
his illness that feels like it is going to end in death. It is stated in the
book Mâ-lâ-budda: “If a person feels
deadly ill, it is wâjib for him to write his will, yet it is mustahab to write
and have it with him if he feels well. In this written will, he should give his
last advice to his children and friends. He should request them to see to that
people whom he has hurt, offended or wronged or to whom he owes, (if there are
any such people) be paid their rights or dues or apologized to or somehow
pleased, to pay his debts, to perform isqât for him and, (if hajj has become
obligatory for him), to either make hajj on his behalf or to have a deputy
sent. He should state his wishes concerning his funeral service and after
burial. He should never forget to request that his debt of Mahr-i muejjel to his wife be paid back. And he
should choose a guardian in the presence of two fair witnesses for fulfilling
his wishes in accordance with the rules of the Sharî’a. Kâdihân (rahmatullâhi ’aleyh) says, “According to
Imâm Muhammad (rahmatullâhi ’aleyh) it is permissible to enjoin that a cemetery
should be made or that a hotel or a mosque or a fountain should be built for
travellers or that shrouds or coffins should be bought or graves should be dug
for Muslims or expenses of a mosque should be met with one-third of your
property. However, it is not permissible to enjoin to build a penitentiary by
allocating one-third of one’s property, for this duty is the government’s
responsibility. If the deceased person enjoined performance of hajj, the deputy
must be sent forth from the city where he died. If the property is not
sufficient to cover the expenses from the city of residence, the deputy is to
be sent from an affordable location. If he enjoined Jihâd, then the property is
given to the soldiers and/or is spent on military equipment. It is permissible
to make a bequest to poor disbelievers who believe in another Holy Book, but it
is not permissible to enjoin building of a church. It would not be valid to
bequeath a pardon for one’s convicted murderer. If a person leaves only a
house, he is permitted to enjoin that a certain person should live there. In
this case, the latter can live in the house till death. Before it becomes
evident by its symptoms that death is quite close, it is permissible for the
person in his deathbed to give a gift to one of his children for the purpose of
rewarding the extra services he has done
or because he is in need, unless the ill person shows signs of mental
incompetence. If the bequest is made to distribute one-third of one’s property
to the poor within the city, it will be permissible to distribute it even to
the poor who live in other cities. Even if the bequest provides that the money
should be distributed to ten poor people, it is permissible to give all of it
to one poor person, or the other way round. It is also permissible to
distribute it in one day, even if it was said to distribute it in ten days. If
one bequeathed one-third of one’s property to one’s relatives, it is
distributed to those other than heirs. Even if there are infants among the heirs
or the deceased had debts, adults utilize the inherited property. (See the
chapter captioned Companies in the
Turkish original, Se’âdet-i Ebediyye) A
person can annul his last will; however, denial of the will doesn’t mean
annulment. Anyone who accepts to execute the will cannot give up after the ill
person’s death. If a fâsiq or zimmî who is not trustworthy is appointed as an
executor, a judge can replace him. It is not permissible for an executor to be
paid. However, a pay promised to him becomes a bequest; he takes it and
undertakes his duty as the executor. Even if the father of the deceased who did
not appoint an executor will become the guardian of his infant grandchildren,
he cannot sell any property in order to pay debts. The executor or the grandfather
guardian cannot lend the orphan’s property; however, a judge can do so. The
executor cannot repay the deceased’s debts with the orphan’s property. Nor can
he pay his fitra or perform the qurbân for him out of the orphan’s property.
But the father can. If the executor becomes needy, he can utilize the orphan’s
property, but he cannot donate it to someone else. If he wastes the property he
should be dismissed. He is not permitted to use the orphan’s property for his
own needs and later substitute it with its equivalent. It is necessary to give
it to the orphan when he grows up.” The book Durr-us
sukuk, which was printed in 1288, contains canonical law court
decisions. One of the documentaries demonstrating the appointment of a trustee
is as follows:
“Draper
Osmân Efendi, who dwells at such and such a building near Gedikpaþa in Islâmbol
city, says in the majlîs-i shar’i sherîf-i anwar and also in the presence of
Ahmed Aða, ‘When I die by the command of Allâhu ta’âlâ, all my property and all
the loans due to me shall be collected; first the washing and shrouding of my
corpse shall be done as is customary; then my debts shall be repaid if there
are any, and one-third of the rest shall be set apart.
Of this reserved thuluth, such-and-such
amount shall be spent performing the isqât of my prayers of namâz and the
kaffârats of my fasts, oaths and vows. The isqât must be done compatibly with
the Sharî’a and the money should be given to the poor. So-and-so much money
shall be spent making sweetmeats, and they shall be distributed to the poor.
So-and-so much shall be spent for my grave. The rest of this reserved thuluth
my appointed trustee shall spend on such pious and charitable deeds as he
chooses. I have chosen and appointed Ahmed Aða, who is present here, for the
execution of this will of mine.’ Ahmed Aða has listened and acceded to this
will, and he has undertaken to do all of it the best way. And we the
undersigned, have seen and heard and therefore bear witness that he was
present.”
Signed Signed
Osmân son of Hasan Ahmed son of
Alî
Signed Signed
Ömer son of Süleymân Bekr son of Velî
It is written in Behjet-ul fatâwâ,
“If the executor appointed (by the deceased) to use one-third of the property
in charitable deeds spends so much of the property in charitable deeds, the
heirs of the deceased cannot question him on who he has given so much
property.”
If a
person dies without having appointed an executor, the judge appoints an
executor for the fulfilment of his will.
While explaining fâsid sales, the book Radd-ul
mukhtâr states, “When the heirs know that others have dues from the
inherited property and also who the dues belong to, they have to give them
their dues. (Otherwise), the property will be harâm for the heirs. If they do
not know who the dues belong to but if they are able to distinguish the
property which belongs to others, that distinguished property will still be
harâm for the heirs. They must give that property as alms to the poor with the
intention that the thawâb shall belong to the owner of the property. If that
property has been mixed up with the deceased’s propery and if its owners are
not known, it becomes halâl for the heirs, according to scholars. [If a civil
servant bequeaths to one of his heirs some money in form of compensation or
salary as he dies, the money becomes the receiver’s property. The other
inheritors cannot demand any share from the money.]
It is permissible to eat the food offered
by a person who is known to have been earning money by cruelty, bribery,
extortion or theft, or whose loans are known to be paid with money earned likewise.
But it is not permissible if it is known that the food itself comes from the
harâm. So is the case with a woman who eats the food brought home by her
husband.
If
the debts of the deceased are in excess of the property he leaves, the heirs
can prevent the sale of the property left by paying the value (of the owed
property) to the creditors out of their own property. The creditors cannot say
that they shall not let them (the heirs) have the (left) property unless they
(the heirs) pay all the debts.”
The sons’ being given twice as much as the daughters in the dividing up
of inherited property has been leading some people to misconception; it has
been another basis for the enemies of Islam to inveigh against Islam. They say
that in Islam women are deprived of their rights. I have quoted a very ignoble
poem fibbed by Ziyâ Gökalp, in the 41st chapter of the part named Doðruya Ýnan, Bölücüye Aldanma in my Turkish book
Fâideli Bilgiler (Useful Information).
In truth, in Islam the woman has been given so much that she does not need a
bit of inheritance. Her husband, her father, her brother, and her other mahram
relatives such as paternal uncles have been enjoined to work, earn and meet all
her needs. On account of this hard task, men would deservedly be inheriting the
whole property had Islam not favoured women with getting half men’s share.
Despite the fact that the man has to support the woman and the woman does not
have to support even herself, Islam supports the woman by giving her a share
from the inheritance in addition. This is another demonstration of the fact
that women are cherished highly in Islam. Anyone who disapproves and dislikes
the rules of Islam becomes a disbeliever. If a daughter says, “I want a share
equal to my brother’s,” the inherited property will be divided into six shares,
the son will be given four shares and the daughter will be given two shares,
and both of them will acknowledge their acquiescence in this commandment of
Allâhu ta’âlâ. Then the son donates one of his four shares to his sister, thus
securing her against the danger of becoming a disbeliever.