Live Your Life to Benefit Others
In the name of Allāh, Most Gracious, Most MercifulAL-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, Muḥammad 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 (aṣḥāb al-furūḍ), 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-arḥām) 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-mūṣā 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 (ḥarbi) and non-Muslim subjects (dhimmi), or constructive as in the mustamin and dhimmi, or two ḥarbis 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 furūḍ, 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