Solving
the problems of farâid requires learning well and memorizing the ten pieces of
knowledge given in the previous chapter.
Of the six fards, which are commanded clearly in Qur’ân al-kerîm and
which are written in section number two above, nisf, rubu’ and thumun are
termed the First Category, and the kinds
thuluthân, thuluth and sudus are termed the Second
Category.
There
are two possible cases in calculations of farâid:
FIRST CASE: The ashâb-i farâid and the asabas exist
together, in which case one of the following five situations may be in
question:
1 -
If the nisf exists with the second category, the inheritance is divided by six;
this is mottoed as “The matter [problem] is based on six.”
For
example, if there is the husband, two sisters uterine and one paternal uncle,
the problem is based on six, the husband gets three shares, the two sisters
uterine get two shares, and the remaining one share is given to the uncle.
To
exemplify, if a deceased woman leaves nine thousand liras as an inheritance,
the woman’s husband gets 9000x3/6=4500 liras, her two sisters get 9000x2/6=3000
liras, and the uncle gets 9000x1/6=1500 liras. The sisters get fifteen hundred
liras each.
A
second example: When there is the husband, the mother and a jedd (grandfather),
the husband gets three shares, the mother two shares, and the grandfather the
remaining one share.
2 -
If the rubu’ exists with the second category, the matter is based on twelve.
For
example, when there is a wife, a mother, two sisters, and two sisters uterine,
the inheritance is divided by twelve, the wife is given three shares, the
mother two shares, the two sisters eight shares [four shares to each], and the
two sisters uterine four shares [two shares to each], in which case the number
of shares becomes seventeen. Then, the basis of the problem makes awl (swerves)
to seventeen and then the inheritance is divided by seventeen.
A
second example: When there is the wife of the deceased, his father’s mother and
his paternal uncle, three of the twelve shares are given to a wife, two to the
grandmother, and the remaining
seven shares to the paternal uncle, who is
an asaba.
3 -
When the thumun exists together with the second kind, the matter is based on
twenty-four. For example, when there is a wife, two daughters, a mother, and a
paternal uncle, the problem is based on twenty-four, and a wife is given
[24x1/8=3] three shares, the two daughters are given [24x2/3=16] sixteen
shares, a mother is given four shares, and the remaining one share is given to
the paternal uncle.
A
second example: When there is a wife, a daughter, son’s daughter, a mother, and
a sister, three of the twenty-four shares are given to the wife, four shares to
the son’s daughter, four shares to the mother, twelve shares to the daughter,
and the remaining one share to the sister, who is an asaba.
4 -
When one share cannot be divided by the number of the people (who are to share
it), the basis of the problem is multiplied by the number of those people, and
the inheritance is divided by this new basis.
For
example, when there is a husband and five sisters, the basis of the problem,
which is six, makes awl, [that is, changes], to seven and the five sisters get
four shares. Since four shares cannot be divided by five, the number of
sisters, the basis of the problem becomes 5x7=35. So, [4x5=20] twenty shares
are given to the five sisters, and [3x5=15] fifteen shares to the husband.
5 -
If a few shares cannot be divided between the owners of those shares, the least
common multiple of the number of the owners of those shares is multiplied by
the basis of the problem and thus the new basis is found. The inheritance is
divided by that new basis.
For
example, when there are three daughters and three paternal uncles, the problem
is based on three and the daughters get two shares and the uncles get one; yet
because the share cannot be divided by the number of individuals the basis of
the problem becomes [3x3=9] nine; [9x2/3=6] six shares are given to the
daughters and [9x1/3=3] three shares to the uncles.
A
second example: When there are two wives, ten daughters, six grandmothers and
seven paternal uncles, the problem is based on twenty-four, and three shares
belong to the wives, sixteen shares to the daughters, four shares to the
grandmothers, and the remaining one share belongs to the uncles; but because
the number of shares is not divisible by the number of their owners, the least
common multiple of two, ten, six and seven, (210), is
multiplied by the basis of the matter,
(24), and the result is obtained: [24x210=5040]. The wives get [5040x1/8=630]
six hundred and thirty shares, the daughters [5040x2/3=3360] thirty-three
hundred and sixty shares, the grandmothers [5040x1/6=840] eight hundred and
forty shares and the uncles [5040x1/24=210] two hundred and ten shares. Thus,
one wife gets 315 shares, one daughter 336 shares, one grandmother 140 shares,
and one paternal uncle 30 shares.
SECOND CASE: There is only the ashâb-i farâid. Because
there are no asabas, the property remaining from the ashâb-i farâid is again
divided between the ashâb-i farâid in proportion with their shares. That is, it
is returned to the ashâb-i farâid. But it is not returned to the husband or
wife. These two are called unreturned.
Those ashâb-i farâid other than the husband and wife are called returned, which means those that are given again.
The problems of the second case are called problems
of return. One of two situations may form the problems of return:
1 -
If the unreturned do not exist in the problem of return, two situations are
possible:
A: When (all) the returned own their fards
in (the same) one category the problem is based on two.
For
example, when there are two sisters, each gets half of the inheritance.
A
second example: When there is a grandmother and a sister uterine, each gets
half of the inheritance. For, the fard of both of them is sudus (one-sixth).
B: When the returned do not have their fards
in two or three different categories, the basis of the problem of return is the
sum of the number of shares.
For
example, if the problem contains the categories of thuluth (one-third) and
sudus (one-sixth), the problem must be based on six and the share of the one
whose fard is thuluth must be 6x1/3=2, and the share of the one whose fard is
sudus must be 6x1/6=1. However, because there are no asabas our problem becomes
a problem of return, and the basis of the problem becomes [2+1=3] three,
instead of six. An example of this is the existence of a mother and two sisters
uterine; since the fard of the mother is sudus and the fard of the two sisters
is thuluth, this problem of return is based on three; so the sisters are given
two shares and the mother is given one share.
A
second example: If the problem of return contains the
categories of nisf and sudus, the problem
will be 6x1/2=3, and the share of the one whose fard is sudus will be 6x1/6=1.
But the problem of return is based on [3+1=4] four. When there is a daughter
and a son’s daughter, three shares belong to the daughter and one share belongs
to the son’s daughter.
A third
example: If the problem of return contains the categories of nisf and thuluth
or sudusân [two units of sudus] and nisf or thuluthân [two units of thuluth]
and sudus, the problem is based on five instead of six. When there is one
sister and two sisters uterine the basis of the problem of return becomes
[3+2=5] five, three shares being given to the sister and one to the two sisters
uterine.
2 -
When the problem of return contains the unreturned too, there are, again, two
possible situations:
A: When the returned have their fards in
(the same) one category, two cases exist:
First
case: If, after the unreturned has gotten his (or her) share, the remaining
property can be divided by the number of the returned, the unreturned gets his
(or her) share and the rest is divided by the number of the returned.
For
example, when there is a husband and three daughters, the husband gets one of
the four shares and the remaining three shares are distributed to the
daughters.
Second
case: If, after the unreturned has gotten his (or her) share, the remaining
property cannot be divided by the number of the returned, the basis of the problem
is found by multiplying the number of the persons returned by the denominator
of the fard [share] of the unreturned.
For
example, when there is a husband and five daughters, the husband gets the rubu’
(one-fourth) and the remaining three shares cannot be divided between the five
daughters; so the basis of the problem becomes [4x5=20] twenty, the husband
gets five shares and the daughters get fifteen shares; each daughter is given
three shares.
B: If the returned own fards in two or three
different categories, the person unreturned gets his (or her) share and the
remaining property is divided like in the problem of return. Here also, there
are two cases:
First
case: If the shares remaining from the unreturned can be divided by the basis
of the problem of return, for finding out the basis of the problem the least
common multiple of the number of
the returned and unreturned is multiplied
by the denominator of the fard (share) of the unreturned.
For
example, if there is one wife, four grandmothers and six brothers or sisters
uterine, when the wife gets the rubu’, three shares remain; the basis of the
problem of the returned is the share of the grandmothers (6x1/6=1) plus the
share of the brothers or sisters (6x1/3=2)=1+2=3. Since the remaining three
shares can be divided by the basis of the problem of return, which is three,
the basis of the problem becomes [12x4=48] forty-eight. For, the least common
multiple of four, which is the number of the grandmothers, and six, which is
the number of the brothers and sisters, is twelve. 48x1/4=12 shares fall to the
wife, 1x12=12 shares to the four grandmothers - three shares to each - , and
2x12=24 shares to the six brothers or sisters-four shares to each.
Second
case: If, after the unreturned has gotten his (or her) share, the remaining
shares cannot be divided by the basis of the problem of return, to find out the
basis of the problem the basis of the problem of return is multiplied by the
denominator of the unreturned’s fard, and the result is, again, multiplied by
the least common multiple of the number of the returned and the unreturned.
For
example, supposing there are four wives, nine daughters, six grandmothers, the
wives get the thumun and seven shares remain. And since the nine girls will get
6x2/3=4 shares and the six grandmothers 6x1/6=1 share, the basis of the problem
of return is 4+1=5. The remaining seven shares cannot be divided by five, which
is the basis of the problem of return, so basis of the problem becomes
[5x8x36=1440] fourteen hundred and forty, and the wives are given [1440:8=180]
hundred and eighty shares, the daughters [(1440-180)x4/5=1008] one thousand and
eight shares, the grandmothers [(1440-180)x1/5=252] two hundred and fifty-two
shares; accordingly, each wife gets forty-five shares, each daughter gets
[1008:9=112] hundred and twelve shares, and each grandmother gets [252:6=42]
forty-two shares.
Kadihân (rahmatullâhi ta’âlâ ’aleyh) says that if
the spouse of a deceased woman is the only remaining heir, and the decedent
bequeathed half of the property to a third party, this third party will be
entitled to half of the property. One-third is received by the spouse.
One-sixth will be received by the Bayt-ul-mâl
(the treasury). The third party first will receive one-third. The half of the remaining
two-thirds, (which translates to one-third of the inherited property), is to be
received by the husband. After this
distribution, one-third of the property of
inheritance remains. By giving one-sixth of this remaining part to the third
party, the half of the inherited property which was bequeathed to him has been
transferred. The remaining one-sixth will belong to the Bayt-ul-mâl, for the
remaining part is not to be given to the spouse. If the decedent bequeathed
half of the property to the spouse (husband), the entire property would belong
to him.
It is written in Fatâwâ-i Hindiyya,
“Supposing a deceased woman has a husband, a sister, and a sister by her
father; half (of the inheritance) falls to the husband, half to the sister, and
one-sixth to the sister by her father, and the basis of the problem makes awl
(changes) from six to seven. If there were a brother by her father too, he
would cause the sister by her father to fall from her share of fard and become
an asaba. And because there would be nothing remaining from the husband and the
sister, the sister by father would get nothing.
I - If there exists no ashâb-i farâid or asaba, or if there is only the
husband or the wife, the inheritance is given to the zawil-arhâm. The expenses
of the funeral arrangement, such as washing, shrouding and burial, and the
payment of the human debts having been deducted from the inheritance, one-third
of the remainder is spent for the fulfilment of the (decedent’s) will.
Two-thirds of the rest are given to the closest of the zawil-arhâm. The zawil-arhâm consists of five
classes, which are as follows in respect of their closeness to the deceased:
1 -
The first class subsumes the decedent’s furû’. Furû’, (sing., fer’), means
children. (The decedent’s) daughters, children, (the decedent’s) son’s
daughters’ children and their progeny are in this class.
II - The second class subsumes the decedent’s asl, which are the fâsid[1] grandfathers, the fâsid grandmothers, and their
parents. Also in this class are the decedent’s mother’s father and also the
father or mother of this last member.
III -
The third class subsumes the decedent’s father’s furû’. All kinds of sisters’
children or grandchildren and uterine brothers’ children and all kinds of
brothers’ daughters or grandchildren are in this class.
---------------------------------
[1] Fâsid grandfathers and grandmothers are those in the female line.
IV - The fourth class subsumes the grandparents’ furû’. Paternal aunts,
maternal aunts, maternal uncles and paternal uncles uterine are in this class.
The paternal uncle uterine is one’s father’s brother uterine. Those paternal
uncles who are the father’s brothers by the same father and mother or by the
same father only are asabas. All kinds of paternal uncles’ daughters and their
progeny are all in the fourth group.
V -
The fifth class subsumes the father’s or the mother’s grandfathers’ furû’. The
mother’s or father’s paternal aunts, maternal aunts and maternal uncles, the
father’s paternal uncles uterine, the mother’s paternal uncles, the mother’s
and father’s paternal uncles’ daughters, and the mother’s paternal uncles’
children are in the fifth class.
2 -
If only one of the zawil-arhâm exists and none of the other heirs exists, this
person gets the entire property. If there is only one person in one of the five
classes of the zawil-arhâm, those who are in the following classes cannot be
heirs even if they are closer to the deceased. If there are several people in
the same class, the ones who are closer to the deceased deprive the ones who
are farther of the inheritance. For example, if the mother’s father exists, his
(mother’s father’s) mother or father cannot be an heir. Likewise, if the
maternal uncle and the maternal uncle’s son exist, the maternal uncle’s son
cannot get any inheritance. Next, one who is related to the deceased by two
linkages deprives one who is related by one linkage. For example, when there is
a maternal uncle by both parents, (that is, mother’s brother from the same
father and mother), a maternal uncle only by the same father, (that is,
mother’s brother only from the same father), cannot be an heir. In case of
equality in these respects also, one who is related to the deceased through an
heir becomes the heir. For example, if the son’s daughter’s daughter exists,
the daughter’s daughter’s son cannot be an heir. For, the former is of the progeny
of the owner of the fard.
3 -
If there is difference in the directions of closeness; for example, if the
father’s mother’s father and the mother’s father’s father both exist, the one
in the father’s direction gets two-thirds, and the one in the mother’s
direction gets one-third.
4 -
In case of equality in respect of the degree of closeness, the strength of
closeness and the direction of closeness to the deceased, and if none of the
concerned is related to the deceased through an heir, the inheritance is
divided so that the men get twice as much as the women do. An example of this
would be the
existence of both the daughter’s son and
the daughter’s daughter.
The
person who has helped a murderer, like the murderer, cannot get any inheritance
(from the murdered). This, of course, has the stipulation that they should have
reached the age of discretion and puberty. One can be a renegade’s heir. But a
renegade cannot be a Muslim’s heir.
It is stated in the final chapters of the books Hadîqa and Berîqa,
as well as in the books Sayf-us-sârim
and Inqaz-ul-hâlikin and Jilâ-ul-qulûb: “If a person donates gold coins or
silvers to a public foundation and provides that they should be spent on good
deeds such as reading Qur’ân al-kerîm, performing supererogatory namâz, saying
prayers such as tesbîh, tehlîl, mawlîd and salawât and the thawâb for these
pious deeds should be donated as gifts to his soul and to the souls of people
he names, this will is not sahîh, for it is a bid’at to make such a donation.
He or the people he names will not receive the thawâb donated. Money accepted
in return for these services will be a fee for the pious deeds, which is an act
of harâm. If some people perform these pious deeds voluntarily and donate the
thawâb (they will earn for these pious deeds) to people they choose, alive or
dead, those people will receive the thawâb. And it will be halâl for them
(people who do these pious deeds) to accept the gifts donated to them without
bargaining. Donation of this sort will be sahîh.”
A lawyer named Toma Andoniaki Bey from the Istanbul Bar, gives
information about Ottoman law in his book Kâmûs-i
Kavânîn (Dictionary of laws), published
in 1310 [1892 A.D.] in Istanbul, and provides further details regarding the
distribution of inherited property. A lawyer from Adana, Kasbaryan Bey, wrote
about Majalla and explained fourteen
other Ottoman laws article by article in his book Juzdân-i
Kavânin-i Osmâniyye (Pamphlet of Ottoman laws) printed in 1312 [1894
A.D.] in Istanbul.