In the name of Allāh, Most Gracious, Most Merciful

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AL SIRĀJIYYAH (English)

 

AL-SIRĀJIYYAH

                                                    Muḥammad bin Muḥammad Sirāj Al-Din Al-Sajawandi ()

THE  INTRODUCTION

IN   THE   NAME  OF  ALLĀH,THE   MOST  BENEFICIENT, THE MOST MERCIFUL

 

All praise be to Allāh  (), the Lord of the Worlds and His blessings and peace be upon the best of the created, Muammad and his holy and sacred family.

The Prophet of Allāh  (), said, "Learn yea the laws of inheritance, and teach them to  the people; for they are one half of useful knowledge."

 

Our learned jurists (to whom Allāh  () be  merciful) said, " There are four successive duties concerning the property of the deceased. The first is the funeral and burial  expenses without extravagance, yet without deficiency; the second is to pay his debts from the whole of the remaining property mal; then, the third is the payment of legacies out  of  a  third of what  remains after the debts have been paid;  and,  lastly, the fourth duty is to distribute  the residual property among his legal successors, according to the Divine Book, the Sunnah, and the consensus (ijmā‘) of the learned."

Then we begin with the  persons entitled to shares (aāb al-furū), who are  such  as  have each a specific share allotted to them in the book of Allāh  (). Then we proceed to the residuary heirs (ʿaṣabāt), who are relatives by reason of nasab consanguinity, and the ʿaṣabāt are those who take from the inheritance of what remains after those who are entitled to shares; and, if there  be  only residuaries, they take  the  whole property. Next come the residuaries by special cause, that is called mawlā al-itāq, the master of an emancipated slave and his male residuary heirs in order. Thereafter, we begin with radd (that is to return the surplus to sharers in accordance with their rights of inheritance). Thereafter to the distant kindred (dhawū al-arām) to the successor  by contract (mawlā al-mawāla); then to him who was acknowledged as a kinsman through  another (al-muqirr lahu), so as not to prove his consanguinity, provided the deceased persisted in that acknowledgment until his death;  then to the person, to whom  the  whole  property was left  by will (al-mūā lahu); and lastly to the public treasury (bayt al-māl al-muslimeen).

 

 

ON IMPEDIMENTS TO SUCCESSION

Impediments  to succession are four: (i) slavery, whether it be perfect or imperfect; (ii)  homicide, whether punishable by retaliation or expiation; (iii) difference of religion; and (iv) difference of domilcile, either actual, as between an alien enemy (arbi) and non-Muslim subjects (dhimmi), or constructive as in the mustamin and dhimmi, or two arbis of different countries; the difference of country arises by reason of allegiance to different powers and kings there being no allegiance between them.

 

 

ON THE RULES OF DISTRIBUTION OF SHARES AND PERSONS ENTITLED TO  THEM.

The furū, or shares, appointed in the book of Allāh  (),  are six:  a  moiety, a quarter,  an eighth, two thirds, one third, and a sixth, some formed by doubling,  and some by halving. Now  those entitled to these  shares are  twelve  persons: four males, who are the father and the  true grandfather or another male ancestor, however high soever in the paternal line, the  brother by the same mother, and  the husband; and eight  females, who are the wife, and the daughter, and the son's daughter, or other female descendant however low soever, the sister  by one father and  mother, the sister by the  father's  side, and  the sister by the mother's side, the  mother, and the true grandmother, that is, she who is related to the deceased without the intervention of a false grandfather.    

The father takes in three  cases: (i)  an  absolute  share, which is a sixth, and that with the son, or son's son, however low soever;  ii) a legal  share, and  a  residuary portion also, and that  with  a daughter, or a son's daughter, however low soever in  the degree of  descent; (iii) he has a simple residuary title, on failure of children  and  son's children, or other lower descendants.

The true  grandfather has the same interest with the father, except in four  cases, which we will mention presently, if it pleases Allāh  (); but  the  grandfather is excluded  by the father,  if  he  be living, since the father  is the  mean of  consanguinity between  the grandfather and the deceased.  

The mother's children also take in three cases : (i) a sixth is the share of one only ; (ii) a  third, of  two, or of more; males and females have an equal division and  right; (iii) but  the mother's children are excluded  by children of the deceased and by son's children, however low  soever, as well as by the father and the grandfather, as the learned agree.   

The husband takes in two cases: half, on failure of children, and son's children, and a fourth, with children or son's children, however low soever they descend.

 

ON  WOMEN

Wives take  in two cases: (i) a fourth  goes to one or more on failure of children, and son's children, however low  soever;  (ii) and  an  eighth  with  children  or  son's children, however low  soever.   

Daughters begotten by the deceased take in three  cases: (i) half  goes to one only; (ii) and two thirds to two or more;   (iii) and, if there be a son, the male has the share of two females, and he makes them residuaries.

The son's daughters are like the daughters begotten by the deceased and they may be in six cases: (i) half  goes to one only, (ii) and two thirds  to two or more, on failure of  daughters begotten by the deceased ; (iii) with a single daughter of the deceased, they have  a sixth, completing, (with the daughter's half), two thirds; (iv) but, with two daughters of the deceased, they have no share of the inheritance, (v) unless there be, in an equal degree with, or in a lower degree  than, them, a  male, who makes them  residuaries. As to the remainder between them, the male has the portion of two females; (vi) and, all of  the son's daughters are excluded by the son himself.

If a man leave three son's daughters, some of them in lower degrees than others, and three daughters of the son of another son, some of them in lower degrees than others, and  three daughters of  the  son's son of another  son, some of  them  in lower  degrees than others, as in  the  following table, this is called  the case of  taṣīb.

Here the eldest of the first line has none equal in degree with her; the middle one of the first line is equalled in degree by the eldest of the second; and the youngest of the first line is equalled by the middle one of the second, and by the eldest of the third line ; the  youngest of  the  second line is equalled  by  the middle one of  the third line, and youngest of the third  set  has  no equal  in degree. When you have understood this, then we say: the eldest of the first line has a moiety; the middle one of the first line has a sixth together with her equal in degree to make up two thirds; and those in lower degrees never take anything, unless there be a son with them, who makes them residuaries, both her who is equal to him in degree, and her who is above him; but who is not entitled to a share; those below him are excluded.

Sisters by the  same father  and mother may be in five cases: (i) half goes to one alone ; (ii) two thirds to two or more ; (iii)and, if there be brothers by the same father and mother, the male has the portion of two females; (iv) and  the females become residuaries through  him by reason of  their equality in  the degree of  relation  to the deceased; (v) and they take  the  residue, when they are  with  daughters  or  with  son's daughters, by the saying  of  Him,  on whom  be  blessing  and  peace ! "Make sisters, with daughters, residuaries."

Sisters by the same father only are like sisters by the same father and mother, and may be in seven cases: (i)half  goes to one;  (ii) and  two  thirds  to  two or more on failure  of sisters  by the  same father   and mother;  (iii) and, with one sister by the  same father and mother, they have a sixth, as the  complement of two thirds ;  (iv) but they have no inheritance with two sisters by the  same father  and  mother,  (v) unless there   be with them a brother by  the same father, who makes them  residuaries; and then the  residue is distributed among them by the sacred rule '' to the male what is equal to the share of two females."  (vi)The sixth case is, where they are residuaries with daughters or with son's daughters, as we have before stated it.

(vii) Brothers and sisters by the same father and mother, and by the same father only, are all excluded by the son and the son's son, in however low a degree soever, and by the father also, as it is agreed among the learned, and even by the grandfather according to Abū Ḥanīfa (). And those of the half blood are also excluded by the brothers of the whole blood.

 

The grandmother has a sixth, whether she be by the father or by the mother, whether alone or with more, if they be true grandmothers and equal in degree ; but they are all excluded by the mother, and the paternal female grandmothers also by the father; and, in like manner, by the  grandfather, except the father's mother, however high soever, for she takes with the  grandfather, since she is not related through him.   The  nearest true grandmother, whether paternal or maternal, excludes  the  more distant grandmother, on whichever side she be, whether  the  nearer grandmother is entitled to a share of the inheritance, or  be herself excluded.   

When a grandmother has but one relation, as the father's mother's mother, and another has two such relations, or more, as the mother's mother's mother, who is also the father's father's mother, according to the table below,

 

then  a sixth is divided  between them, according to Abū Yusuf (), in  moieties, respect being  had  to  their person, but, according to (imām) Muḥammad () in  thirds,  respect  being had  to  the sides (jihāt).

 

 

ON RESIDUARIES

Residuaries  by relation  to the deceased  are  three: (i) the  residuary  in his  own  right; (ii)  the  residuary  in another's right; (iii) and the residuary together with another.    

Now  the  residuary  in  his  own  right  is every  male, in  whose line  of  relation  to  the  deceased no female intervenes; and  of this sort  there are four  classes: (I) the  offspring of the deceased; (II) and  his roots;  (III) and  the  offspring  of  his  father; (IV) and of  his nearest grandfather, a preference being given, I mean a preference in the right  of inheritance, according to proximity of degree.   

The offspring of  the deceased are his sons first; then their sons however low soever, then  comes his root, or his father; then his paternal and father, and their paternal grandfathers, however high soever; then the offspring of his father, or his brothers;  then  their sons, however low soever; and then the offspring of his grandfather, or  his uncles; then  their  sons, however low soever. Then  the strength of consanguinity prevails, I mean, he, who has two relations is preferable to him, who has only one relation, whether it be male or female, according to the saying of  Him, on  whom be peace ! " Surely, kinsmen by the same father and mother  shall  inherit before kinsmen  by  the  same father  only,"  thus  a brother  by the same father and  mother is  preferred to a brother  by the father only, and a  sister by the same father  and  mother, if she become a residuary with the daughter, is  preferred to  a  brother  by the father  only; and  the son of  a brother  by the same father   and   mother  is  preferred  to  the  son  of  a brother by the same father  only; and the rule is the same in regard to the paternal uncles of the deceased; and, after  them, to the paternal uncles of  his father, and, after them, to  the  paternal uncles of  his grandfather.

The residuaries in another's right are four females:  those whose shares are half and two thirds, and who become residuaries in right of their brothers, as we have before mentioned in their different cases; but she, who has no share among females, and whose brother is the  heir, does  not become a  residuary in his right i.e. as in the case of  a paternal  uncle and a paternal aunt (the whole property is for the uncle and there is nothing for the aunt).

As to residuaries together with others: such is every female who becomes a residuary with another female;  as  a  sister  with  a  daughter,  as  we  have mentioned before.   

The last  residuary is the master of a freedman, and  then  his residuary  heirs, in the order before stated; according to the saying of Him, on whom be blessing and  peace ! " the master bears a relation like that of  consanguinity;"  but  females have nothing  among the  heirs of a manumittor (mawlā al-itāq), according to  the saying of  Him, on whom be blessing and  peace!"  Women have nothing  from  their  relation to freedmen, except when they have themselves manumitted a slave; or their freedman has manumitted one, or they have sold  a  manumission to a slave, or their vendee has sold it to his slave, or they have promised manumission after their death, or their promisee has  promised it after his death, or unless their freedman  or freedman's freedman  draw a relation to them." If the freedman leave the  father  and  son of  his manumittor,  then   a  sixth  of   the  right   over  the property of  the freedman vests in the father, and the residue in the  son, according to  Abū  Yusuf (); but, according to both Abū Ḥanīfa () and Muḥammad () , the whole right  vests in the  son; and, if a  son and a grandfather   of  the  manumittor  be  left,  the  whole right  over  the freedman  goes to  the  son, as all  the learned agree.   When a man  possesses as  his slave a kinsman in  a  prohibited  degree, he manumits  him, and  his  right  vests in him; as  if there  be  three daughters, the youngest of whom has  twenty dinars; and the eldest, thirty;  and they two buy their father for fifty dinars, and afterwards their father die leaving some property; then  two thirds  of  it  are divided in thirds  among  them, as  their  legal  share, and  the residue goes in fifths to  the  two who bought  their father; three fifths to the eldest and two fifths to the youngest;   which  may  be  settled  by  dividing  the whole into forty-five parts.

UNFINISHED