بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

SHARES IN THE QUR'ĀN ADD UP TO MORE THAN ONE

One criticism the non-Muslims have against the Qurʾān is that the inheritance shares under certain circumstances can add up to greater than one. This is true. Under certain circumstances, the total sum of the assigned shares of the heirs with fixed Qurʾānic shares is greater than one. In this situation, we apply the doctrine of ʿawl.

THE DOCTRINE OF ʿAWL

• The doctrine of ʿawl applies when, after the allocation of shares amongst the sharers (aṣḥāb al-furūd), the total sum of the fixed Qurʾānic shares is greater than one. All the shares are decreased proportionately. An exception to this is inheritance amongst the distant kindred under the system of tanzīl, as practiced by the Shāfiʿī and Ḥanbalī fiqh.
• The doctrine of ʿawl probably rests upon the view that a Qurʾānic share does not represent an absolute entitlement, which is fixed in absolute terms, but rather one which is fixed in ratio to the other Qurʾānic shares.
• The doctrine of ʿawl involves increasing the common denominator of all the fractional shares to the same value as the sum of all the numerators. The numerators are left unaltered. Thus, the total sum of the fractional shares is now one and each share has been proportionately reduced.

First case of application of al-ʿawl
The doctrine of ʿawl which is based on consensus (ijmā‘) of the Companions of the Prophet (), the ijmā‘ of the salaf (first three generations of Muslims) and ijmā‘ of subsequent scholars. The doctrine of ʿawl was established during the caliphate of ʿUmar bin al-Khaṭṭāb () and some say that Zayd bin Thābit () suggested the doctrine of ʿawl. The Prophet () himself stated that Zayd bin Thābit () was knowledgeable in the laws of inheritance. The first case involved the survival of the husband and two sisters, some say the first case involved the husband, father and two daughters.
In al-Mawsūa al-Fiqhiyya it is written, “The first case of ʿawl was for a woman who died and left behind a husband and two sisters. This occurred during the beginning of the caliphate of ʿUmar. He consulted the Companions and said: "By Allāh, I do not know which of you comes first and which comes next. If I start with the husband and give him his right in full, the two sisters will not take their right in full; and if I start with the two sisters and give them their right in full, the husband will not take his right in full." According to the most recognised accounts, al-ʿAbbās ibn ʿAbd Allāh Muṭṭalib suggested that he could apply ʿawl. Other accounts have it that it was ʿAlī bin Abī Ṭalib or Zayd bin Thābit. It was narrated that al-ʿAbbās said: "O Leader of the Believers, tell me: If a man passed away and left six dirhams, and he owed three dirhams to one man and four to another, what would you do? Would you not make the wealth into seven parts?" He said, "Yes." Upon this, al-ʿAbbās said: "It is the same thing." Thus, ʿUmar applied the principle of ʿawl."

When Ḥadrat ʿUmar bin al-Khaṭṭāb () gave his ruling regarding a case involving the doctrine of ʿawl none of the Companions objected.
The Prophet () said, “You must follow my Sunna and that of the rightly-guided Caliphs. Abide by it and hold on tight to it (as if) with your molar teeth…” (Abū Dāwūd, Tirmidhī and al-Hākim who graded it as Ṣaḥiḥ as did al-Albānī ).
Ibn Qudāma () in his al-Mughnī writes, “The opinion of applying al-ʿawl has been adopted by all Muslim scholars except Ibn ʿAbbās and a small group that held another opinion... We do not know at the present time anyone who adopts the opinion of Ibn ʿAbbās. We do not know of any disagreement among the jurists of the Islāmic states regarding applying ʿawl. All perfect praise be to Allāh.”
Ibn al-Qayyim () writes in his Iʿlām al-Mūqqiʿīn ʿan Rabb al-ʿĀlamīn. “The Companions applied ʿawl in inheritance and applied decrease to all heirs by drawing analogy from the decrease applied to the shares of creditors in case where the total assets of a bankrupt person cannot pay off all entitlements. Moreover, the Prophet (), said to creditors: ‘Take what you find and that is all that you are entitled to.’ This is pure justice, while exclusively depriving some creditors and giving some of them their full share is not just.”

• The doctrine of ʿawl only occurs if there is a daughter, agnatic granddaughter (DS h.l.s.), full sister or consanguine sister amongst the heirs.
• It is interesting to note that the doctrine of ʿawl is only applicable when the denominator of the sum of the shares is either 6, 12 or 24.
• Calculations have shown that only a limited number of improper fractions can occur to which the doctrine of ʿawl is applied.  These improper fractions (fractions greater than one) are:

           7/6   8/6   9/6   10/6   13/12   15/12   17/12   27/24

According to ʿAbd Allāh bin Mas‘ūd (), it is possible to have 31/24. This is because ʿAbd Allāh bin Mas‘ūd () allows a maḥrūm to act as a partial excluder. So in the case of a widow, mother, two full sisters and two uterine sisters inheriting together with a son as maḥrūm, the total sum of the shares is 31/24. This case has been named al-thalathiniyya. The distribution of the shares would be:
W  3/31
M  4/31
2Sf  16/31
2Su  8/31
S (killer)  Nil

ʿAbd Allāh bin ʿAbbās’ () variant view
ʿAbd Allāh bin ʿAbbās () was of the view that in situations where the sum of the shares of the Qurʾānic heirs is greater than one, the Qurʾānic heirs who are guaranteed a minimum share (spouse, parents and uterine siblings) should not be further reduced and the burden of necessary reduction should fall on those Qurʾānic heirs who sometimes inherit as sharers and sometimes as residuaries (namely daughter, agnatic granddaughter, full sister and consanguine sister), as the share of this group of Qurʾānic heirs is not guaranteed in the same way.

Ibn Ḥazm () agreed with ʿAbd Allāh bin ʿAbbās’ () opinion. The Shia scholars also follow this ruling.

• The opinion of ʿAbd Allāh bin ʿAbbās (), although sound, was preceded by the judicial authority of ʿUmar bin al-Khaṭṭāb () and has not been adopted in Sunni jurisprudence.
• Abū Bakr al-Jassās () in his Aḥkam al-Qurʾān writes: ʿAtā bin Abī Ribā says, “I heard Ibn ʿAbbās () mention the shares of inheritance and (the concept of ) ʿawl in these shares. He said, “Do you think that the One (i.e. Allāh), Who has an accurate record of even the particles of sand, would distribute the share of inheritance as, ‘one-half and one-half and one-third?’ This one-half and that one-half would account for the whole. Now, where would you give the remaining one-third? ʿAtā says, “I said: ‘What good would this be for you or me? Were you or I to die, our inheritance would be distributed in the same manner, which people have adopted and which is against our opinion. At this, Ibn ʿAbbās () said, “In that case, if they want, let us make ourselves present and they make themselves present and we call our families and they call their families and then pray that may Allāh curse the liars. Allāh has not distributed the shares of inheritance as ‘one-half, one-half and one-third’”
• A similar story is recorded in imām Baihaqi’s () Sunan al-Kubra (6:253) in which Ibn ʿAbbās () is asked, “So what stopped you from advising Umar with this?” He said, “I feared him.”
• ʿAbd Allāh bin ʿAbbās () has several variant opinions in the application of inheritance shares which were not accepted by the mainstream. He opined that three or more siblings were required to reduce the mother’s share to one-sixth whereas the majority view is two or more siblings.
• In the case of the heirs being both parents and siblings, the distribution of shares is two-thirds for the father, mother one-sixth and siblings one-sixth. On the logic that the siblings reduced the share of the mother to one-sixth, so they are entitled to it. The majority view is that the father gets five-sixths and the mother one-sixth; the father excludes the siblings.
• In the case of spouse relict (widow or husband) with both parents ʿAbd Allāh bin ʿAbbās’ () view was that the widow gets one-fourth, the mother gets one-third and the father gets the residue of five-twelfths. If the deceased is a woman the husband gets one-half, the mother one-third and the father gets residue of one-sixth. This view is shared by the qāḍī Shurayḥ, Dāwūd, Ibn Sīrīn and some other jurists.

Adapted from "The Islamic Law of Wills and Inheritance" by Dr. A. Hussain (2015)