It is a universally acknowledged fact that the extent of help and co-operation which a person receives from his parents, children and other similar relations has little chances of being paralleled by any other association. Undoubtedly, the world has always considered the kiths and kins of a deceased as the rightful beneficiaries of the wealth he has left behind. But certain issues in this regard have always remained unresolved, for example, who among the kindred is nearest with respect to the benefit he holds for the deceased? and how should the inherited shares be ascertained on this basis? In this matter the extent to which the human mind has faltered and stumbled can be seen from the frequent history these blunders have continued to make. It is not that human endeavour in this regard has fallen prey to any lack of application, rather it is due to certain inherent limitations of the human mind, which have made the task itself beyond its reach. Love, hatred, prejudice and other emotions, have made it impossible for the human intellect to come to grips with this challenge. Consequently, the Almighty Himself has guided mankind in this affair to relieve an Islamic society from the disorders which have originated on this account:
"You know not who among your children and parents are nearest to you in benefit. This is the law of God. Indeed, God is Wise and all-Knowing." (4:11)
Two implications of the above verse are very clear:
Firstly, since the Almighty Himself has indicated who the heirs of a deceased should be, a more just law in this regard could not have been enacted. Hence, after this Divine Directive, no one has the right to bequeth his wealth in favour of the heirs designated by the Almighty Himself. The verse, in fact, admonishes all ill-advised elements, who on the basis of their own intellect or personal inclinations may desire to amend the law: A warning is being sounded to them that these shares have been apportioned by the immense knowledge and wisdom of the Creator of the heavens and the earth, which encompass all His directives. Man inspite of his formidable talents can neither acquire the vastness of His knowledge nor comprehend the profundity of His wisdom. If he is a true believer he must submit to the Word of God.
The following directive of the Prophet (sws) is based on this Qur’ānic injunction:
"Indeed, God has granted every rightful person his right. So no bequest can be made to an heir." (Tirmazī, Kitab-ul-Wasāyā, Chapter 5)
Secondly, the law of inheritance as stated in the Qur’ān is based on the underlying cause of ‘the benefit of kinship’, as indicated by the words lā tadrūna ayyuhum aqrabu lakum naf’ā (you know not who among your children and parents are nearest to you in benefit). Consequently, the directive in reality does not pertain to the relatives but is related to the underlying cause present in this relationship, which actually entitles them to become the heirs. All the relatives whose shares have been stated in the Qur’ān will be considered eligible to be the recipients only in case the underlying cause of this directive ie, benefit can be proven in their relation to the deceased. This benefit is, by nature, present in parents, children, brothers, sisters, husbands, wives and other close relations. Hence, in normal circumstances, they will be considered the heirs to the legacy of a deceased. However, in certain unusual circumstances, if an absence of benefit in any of these relationships is diagnosed by sense and reason, the style and pattern of the verse demands that such a relative should not become an heir to the legacy. Therefore, in such cases, if someone is deprived from his share, it would be perfectly in accordance with the purport of the verse, to which its words so clearly testify.
In the diverse nature of human relationships, there can be certain instances in which an absence of benefit in close associations can be clearly seen. A little deliberation shows that two such cases are very apparent:
1) Owing to some reason, no relationship on the basis of Islam remains between a legatee1 and a legator2.
2) A legatee kills his legator.
The absence of benefit is extremely evident in the second case, for what benefit can be expected from a person who is after the life of his relations? However, the first case might be beyond the comprehension of people for whom religion is no more than a cultural heritage. But any one who has studied the Qur’ān knows that faith in God and renunciation of every evil belief is simultaneously demanded from the believers by the Divine Message. If a person has established a relationship with the Almighty in a manner prescribed by Him then no relationship of love and affection, help and co-operation on the basis of economic and social benefit, can be developed and established with people who deviate from the prescribed path. The very essence of Islam is nakhla’ū wa natrukū man yafjuruk (O Lord! we shall leave every person who is disobedient to you). If the obligations stipulated by Islam as stated in Sūrah Mumtahinah3 are kept in consideration then it must be conceded that the absence of benefit in the first case is more obvious than in the second.
Since the law of inheritance is based on the underlying cause of benefit, both these cases are, in fact, not included in its sphere of application. These exceptions do not annul the directive, but are understood to exist in its connotations from the day it was revealed. They are inherent in the meaning of the verse and not extraneous to it. Anyone having a linguistic appreciation can clearly comprehend this fact.
The Prophet (sws) is said to have said:
"A Muslim cannot be an heir of a disbeliever nor can a disbeliver be a Muslim’s." (Bukhari, Kitab-ul-Farāidh, Chapter 26)
"The slayer shall not receive the legacy of the person he slays." (Tirmazī, Kitab-ul-Farāidh, Chapter 17)
Explanation of the Law
After this preliminary discussion, we will now present our interpretation of the law as stated in verses 11-12 and verse 176 of Sūrah Nisā. Since our view is different from the general, a detailed explanation supported with all relevant arguments follows. We expect that our learned scholars will accept or reject this viewpoint in the light of these arguments only.
Children
Verse 11 of Sūrah Nisā begins with the shares of the children:
"God enjoins you about your children that a boy’s share is equal to that of two girls’. And, if there are only girls among the children and they are more than two then they shall receive two thirds of the inheritance, and if there is only one girl then her share is half." (4:11)
The sentence Yūsī kumullāhu fī aulādikum (God enjoins you about your children) acts as a prelude to lizzakari mithlu hazzil unthayain (that a boy’s share is equal to that of two girls’). The word aulād denotes both the female and male offspring. Hence, the correct sentence analysis in our consideration is: lizzakari minhum mithlu hazzil unthayain ([among the children] a boy’s share is equal to that of two girls’).
If this commandment had ended on the words lizzakari mithlu hazzil unthayain then it would have meant that: (i) if the children of a deceased are only a boy and a girl then the boy will receive twice as much as the girl, (ii) if the number of boys and girls exceed this, the inheritance shall be divided among them in a manner that each boy receives twice the share of a girl, (iii) if there are only boys or only girls then the whole inheritance shall be given to whoever among the two is present.
The third case is also, quite evidently, an essential outcome of the style and pattern of the verse. If it is said that this money is to be distributed among beggars and a male beggar is to be given twice the amount of a female beggar then this means nothing except that the money is actually meant for the beggars; hence if all beggars are male, all the money shall be distributed among them and if all the baggars are female, then also the same procedure shall be adopted.
But the directive does not end here: an exception immediately follows, thereby amending it.
The sentence fa inkunna nisāan fauqathnataini fala hunna thulutha mā tarak (and if there are only girls among the children and they are more than two then they shall receive two thirds of the inheritance) is an exception to lizzakari mithlu hazzil unthayain. This means that if among the children of the deceased there are girls then whether they are two or more, their share is two thirds. The words wa in kānat wāhidatan falahan nisf (and if there is only one girl then her share is half) are co-ordinated to this exception by the copulative particle (harf-i-’atf) wau and do not form an independent clause.
We have interpreted the meaning of fauqathnatain (more than two) as two or more than two. The reason behind this is that before it, the word ithnatain (two) has been suppressed, which is due to the style and pattern of the Arabic language. If in the language of the Qur’ān , the share of a girl and of two or more girls are to be stated separately owing to a difference in their proportions then there can be two ways of doing so. If an ascending order is adopted the share of one girl shall be stated first followed by the share of two girls. If the share of more than two girls is to be the same as that of two girls, there is no need to mention it in words. After specifying the share of two girls after that of one, due to a difference in their amount, if a silence follows, then this is a clear indication that the share of two or more girls is equal to that of two girls. If a descending order arrangement is employed, then again, the words fauqathnataini au ithnatain (more than two or two) are inappropriate as regards the linguistic style and pattern of Arabic; so after stating the shares of more than two girls, the share of one girl will be stated. In this style and arrangement the commencement of a sentence by fauqathnatain bears evidence to a suppression of the word ithnatain before it. A little deliberation shows that the verse readily suggest this fact. The finesse in the arrangement demands that ithnatain should come after fauqathnatain while linguistic principles dictate that ithnatain should come before fauqathnatain. To fulfil both these requirements the Qur’ān has suppressed the word ithnatain by adopting an elliptical style of expression in the descending order arrangment. In the last verse of Sūrah Nisā, these shares have been stated in an ascending order. Accordingly, we observe there that fauqathnatain has been suppressed after ithnatain:
In umru’un halaka laisa lahu waladun wa lahu ukhtun falahā nisfu mā taraka wa huwa yarithuhā in lam yakunlahā walad. Fa in kānatathnataini fala humathuluthāni mimmā tarak. (4:176) (If a man dies childless and he has only one sister , she shall inherit half of what he leaves and if a sister dies childless then her brother shall be her heir; and if there are two sisters, they shall inherit two thirds of what he [or she] leaves.
Parents
The shares of the parents are stated next:
"And if the deceased has children, the parents shall inherit a sixth each, and if he has no children and only the parents are his heirs then his mother shall receive a third, and if he has brothers and sisters then the mother’s share is the same one sixth after the payment of any legacies he may have bequethed and after discharging any debts he may have left behind." (4:11)
The connective particle wau in wa li abwaihi li kulli wāhidim minhumas sudusu mimmā tarak (and if the deceased has children, the parents shall inherit a sixth each) does not co-ordinate this clause either to fa in kunna nisāan fauqathnatain or to wa in kānat wāhidah; in fact, it co-ordinates it to the whole directive above which relates to the shares of the children. Hence this co-ordination (‘atf) is not copulative (lil jama’), rather it is emendative (lil istadrāk) in nature. The reason is that though it is clear from the words lizzakri mithlu hazzil unthayain that a boy’s share is twice a girl’s, their actual proportion has not been indicated. This linguistic style can be appreciated from an example: If it is said ‘This money is for the children. Let each boy receive twice as much as a girl, and let the father receive half the amount’, any person who has a little linguistic sense will clearly understand these sentences to mean that the money is actually meant for the children. If these sentences had ended without a mention of the father’s share, all the money would have been distributed among the boys and girls in the proportion indicated. But since the father is also to be given half the amount, it is imperative that the father should first receive this amount and the what remains should be distributed among the children. Our jurists are also of the same opinion. Abu Bakr Jassās writes in his "Ahkām-ul-Qur’ān ":
"And another inference from the verse lizzakari mithlu hazzil unthayain is that if besides children other heirs like parents and a husband or a wife are also present then after giving them their shares the remaining legacy shall be distributed among the children." (Vol 2, Pg 80)
But our jurists have erred in regarding fa in kunna nisāan fauqathnatain as an independent clause like wa li abwaihi and have started adding 2/3 to 1/3 and 1/44; whereas fa in kunna nisāan fauqathnatain is an exception to lizzakari mithlu hazzil unthayain and explains one of its aspects, as has been pointed out before. As such this exception cannot have a different implication. The total implied meaning can be appreciated by an example: ‘In this amount Omer, Ali and Saeed have exactly equal shares, and if only Ali and Saeed are present, let Ali receive two thirds and Saeed one third, and give ten rupees from this to our sister.’ A little deliberation shows that though it has been said that in the absence of Omer, Ali and Saeed shall receive two thirds and one third respectively, an amendment at the end necessitates that ten rupees from the amount should first be given to the sister, and whatever remains should be distributed between Ali and Saeed according to their shares.
The verse under discussion is also of the same style. Consequently, if this is kept in mind, it is not at all difficult to coprehend that after the clause fa in kunna wāhidatan falahan nisf the shares of the parents and the spouses which are co-ordinated to the shares of the children by the connective particle wau shall all necessarily be distributed first and whatever remains shall only be distributed among the children. Whether among the children there are only boys or both boys and girls, the same principle shall apply. Similarly, if only female children are present they shall receive two thirds or half (whatever the case may be) from the remaining inheritance and not in any case from the total inheritance.
This, in our opinion, is the correct meaning of the verse. Any person who after comprehending the implications denoted by the particle wau in wa li abwaihi and the particle fa in fa in kunna nisāan reads the verse, shall spontaneously reach the same conclusion.
Regrettably, our jurists have failed to appreciate this meaning. They insist upon giving the female offspring their two third share from the total inheritance. As a result, in some cases it is not possible to distribute an inheritance. They solve this problem by equally decreasing the proportion of each share. This in their terminology is called ‘aul. Ibni ‘Abbās comments on this in the following manner, as reported by Abu Bakr Jassās in his "Ahkām-ul-Qur’ān ":
"Atā bin Abī Ribāh narrates that he heard Ibni ‘Abbās speaking about the shares of inheritance, and specifically refering to ‘aul among them. He was saying ‘Do you people reckon that the one Who has knowledge about every sand particle shall distribute wealth in one half and one half and one third. And after giving this half and this half how shall you give the third?’ Atā says that he replied ‘what benefit is this to you and me. After we depart from this world, our own legacy shall be distributed in the manner people have adopted, contrary to our own view.’ Upon this Ibni ‘Abbās replied ‘Then let us summon our sons and their sons, our women and their women and ourselves and theirselves and pray together that the curse of God be on every liar. God has not distributed any wealth in one half and one half and one third." (Vol 2, Pg 91)
Consider, next, the remaining part of the verse:
The word walad in in kāna lahu walad (if he has children) and fa in lam ya kun lahu walad (if he does not have children) is used both for male and female children. In the Arabic language this connotation is customary. Besides being used here, it has also been used subsequently where the shares of the spouses have been stated. In our consideration, in all these instances it has the same meaning. There is no contextual indication, intrinsic or extrinsic, to use the word specifically for male children. The linguists clearly maintain that it is used in the singular as well as the plural sense and, also, both for the masculine and the feminine gender. In all the cases mentioned, whether boys and girls in the indicated numbers are present or absent, these connotations of the word shall be considered understood. The following Qur’ānic verse conclusively testifies to this meaning:
"And they regard the jinns as Allah’s equals, though He created them, and impute without knowledge sons and daughters unto Him. Praise and Glory to Him! Exalted is He above their imputations. He is the Originator of the heavens and the earth. How can He have children when for Him there is no consort. He created everything and He has knowledge about all things." (6:100-101)
In the above verse, after a mention of the fact that the idolators have falsely ascribed sons and daughters as partners to God, the foolish claim has been refuted by the words: Annā yakūnu lahu walad (how can He have children?). Obviously, walad here is meant both for the masculine as well as the feminine gender.
According to the linguistic principles of Arabic, after the words fali ummihi thuluth (the mother’s share is one third) the words wa li abīhi thuluthān (and the father’s share is two thirds) or words of similar meaning have been suppressed, as is being readily suggested by the words wa warithahu abwāhu (and his parents are his heirs). Hence, this mention is a clear proof of the suppression. When it is said ‘if the heirs of this money are only Zaid and Ali, Zaid’s shares is one thirds’ then after this there is no need to say that ‘the remaining two thirds is for Ali’---something which is understood by all requisites of common sense.
Also, in our estimation, after fa in kāna lahu ikhwatun fa li ummihis sudus (and if he has brothers and sisters then the mother’s share is the same one sixth) the words wa li abīhis sudusu aidhan (and the father’s share is also one sixth) or words having a similar meaning have been suppressed. The contextual indication for this is also very evident. If the brothers and sisters are present then the mother’s share is the same one sixth as in the case when a deceased has children. This also bears witness to the fact that the father’s share is also the same and that there is no need to express it in words. If a reader relishes the finer aspects of a language, he instinctively concludes that if the mother’s share has reverted to its original amount, so should the father’s share. Thus in our opinion the correct analysis of these verses is: ‘If there are children, both the father and the mother shall receive one-sixth. If there are no children and only parents are the heirs, the mother’s share is a third, but if there are brothers and sisters, the mother’s share is the same one sixth’. One can very well see how this style effectively induces the mind to spontaneously jump to the suppressed words:’and the fathers share is also the same one sixth.’
It is clear from these verses that in the absence of children, brothers and sisters take their place. Our view is endorsed by the last verses of the sūrah, but we will delay an explanation until the end, when these verses shall be discussed.
The word ikhwatun, in our consideration, only signifies the existence of a being. It merely specifies that in the presence of brothers and sisters regardless that they are one, two, or more in number, the parental shares revert to their original amount. Plurality here does not indicate a numerical amount, rather it only denotes the existence of an entity. To quote a Hamāsi poet:
Iyyāka wal amralazī in tawassa’at
Mawāriduhu dhāqat ‘alaikal masādiru
["Avoid entangling yourself in a matter in which if the paths that lead to it (mawārid) are wide, those that come out (masādir) are narrow."]
The poet has used the words mawārid and masādir. It will be outright injustice to this literary utterance if it is interpreted to mean that it urges the reader to refrain from getting involved in matters whose mawārid amd masādir are, after all, three or more. The poet only intends to establish the existence of a maurid and a masdar and obviously has has no intention to convey their numerical amount. There may be only one way of getting involved and withdrawing from an affair and there may be several ways to do so. Similarly, a deceased may leave behind a brother and a sister and their number can also be five or ten. The word ikhwatun encompasses all these different cases. To convey such meanings every language employs this style of plurality. If it is said, ‘If you have children then give these sweets to them’, no one will consider this to mean that if the addressed person has only one child, he cannot be given the sweets, merely because the word children has been used by the speaker. Such a meaning can only be inferred by someone who instead of appreciating a language in literary perspectives starts analysing it on the basis of crude mathematical axioms. Our able scholars insist upon qualifying ikhwatun in numerical terms. They are adamant on a literal interpretation that must conform to the norms of duality and plurality.
The words mim ba’adi wasīyyatin yūsī bihā au dain (after the payments of any legacies he may have bequethed and after discharging any debts he may have left behind) at the end of the directive imply that if a deceased has outstanding debts to his name then first of all they must be paid from the wealth he has left behind. After this, a part of his legacy which he might have bequethed shall be paid, and whatever remains shall be distributed among the heirs. Though the directive of discharging of debts has been stated at the end of the verse, it shall be given priority over all payments. The reason is that a person from whom money is borrowed has a rightful share in the wealth of a deceased borrower before his death, while an heir becomes a rightful shareholder in a person’s wealth only after his death. As far as the precedence of the payment of any bequethed legacy in the actual statement of the verse is concerned, it owes much to a touch of elegance in presentation, a distinctive feature of Qur’ānic Arabic.
Spouses
The shares of a husband and wife are stated next:
"And to you belongs a half of what your wives have, if they die childless. And if they have children, a quarter of what they leave shall be yours after payment of their debts and any legacies they may have bequethed. Your wives shall inherit one quarter of what you leave, if you die childless. If you have children they shall inherit one eighth, after payment of your debts and any legacies you may have bequethed." (4:12)
The shares of the spouses are very clearly stated and need no explanation. After the payment of debts and any bequethed legacy, these shares shall be given from the total remaining estate of a deceased.
Kalālah
In the end, the shares of kalālah relatives have been stated:
"If a man or a woman is made an heir on account of his [or her] kalālah relationship [with the deceased] and he [or she] has one brother or sister, the brother and sister each shall recieve a sixth, and if they be more than this, they shall be sharers in one third, after payment of any legacies bequethed and any [outstanding] debts---without harming anyone. This is a command from God and God is Gracious and all-Knowing." (4:12)
The most important word in this verse is kalālah . Originally, it is a nomen verbum (masdar) in the meaning of kalāl ie, ‘feebleness and frailty’. To quote a line from Āshā’s poetry:
Fa āa laitu lā ‘arthī lahā min kalālatin
("Then I swore that I shall not show any mercy on her because of her feebleness and frailty.")
Mutammim Bin Nuvairah says:
Faka ‘annahā ba’dal kalālati wassurā
‘iljun tughālīhi qazūrum mulmi’ū
("That [she] camel after the night’s tiring journey is indeed like a wild ass whom even a pregnant donkey tries to overtake.")
Figuratively, the linguists attribute the following three meanings to this word:
i) A person who leaves behind neither parents nor children.
ii) Any relationship which is not through the parents or children.
iii) All of one’s relatives except the parents and children.
Zamakhsharī writes in his "Kashshāf":
"Kalālah has three meanings: It is an adjective used for a person who leaves behind neither parents nor children; it also means all the relatives of a deceased except his parents and children, and it also denotes the relationships which are not through [the deceased’s] parents or children. The Arabs says: mā warithal majda ‘an kalālah ie, he could not become an heir to nobility because of a distant relationship. Likewise, you say: mā samata ‘an ayyin ie, he did not become quiet because he was unable to speak and mā kaffa ‘an jubnin ie, he did not stop because of cowardice. And kalālah is a nomen verbum (masdar) meaning kalāl. Kalāl means loss of strength because of weakness. Āshā says: fa āa laitu lā ‘arthī lahā min kalālatin ie, then I swore that I shall not show any mercy on her because of her feebleness and frailty. Later, it was figuratively used for the relationship not through the parents and children. The reason for this being that such a relationship is not as strong as the one through the parents and children. And when it is used as an adjective of a legatee or a legator it means zū kalālah . Similarly, you say falānum min qarābatī ie, falānum min zawī qarābatī, and it can also be an adjective like hajājah and faqāqah meaning foolish." (Vol 1, Pg 485)
We could not find the word used in the first meaning ie, a person who does not leave behind both parents and children, in pre-Islamic Arabic poetry though this use is grammatically correct.
It has been used at many instances in pre-Islamic Arabic poetry in the second meaning ie, the relationship not through the parents as well as the children.
To quote Tirmāh:
yahuzzu silāhan lam yarith hu kalālatan
yashukku bihī minhā ghumūdhal maghābinī
("He is waving his weapon which he did not inherit because of a distant relationship. Through it he pierces the part concealed in her thighs.")
Amir Bin Tufail says:
wa mā sawwadatnī ‘āmirun ‘an kalālatin
("And the tribe of Amir did not make me the chief because of a distant relationship.")
Acording to "Lisān-ul-Arab":
"The Arabs say lam yarith hu kalālah ie, owing to his distant relationship he did not become an heir, but he inherited the estate because of nearness and entitlement to it." (Vol 11, Pg 592)
The third meaning attributed to it ie, all relatives of a person except his parents and children is verifid by many examples in the pre-Islamic Arabic literature.
A Hamāsi poet, Yazīd Bin Al-Hakam, while admonishing his son says:
Wal mar’u yabkhalu bil huqūqi wa lil kalālati mā yusīm
("Man shows miserliness in discharging his duties and after his death, his distant relatives take away his animals which graze in the forests.")
Azharī, has quoted a poet’s couplet:
Fa inna abal mar’i ahmā lahu
Wa maulal kalālati lā yaghdhabū
("If a person is oppressed and persecuted, it is his father who, in his support, is infuriated the most. Kalālah relatives are not infuriated to this extent in such a matter.")
To quote a Bedouin’s saying:
"I have a lot of wealth and my heirs are kalālah ie, distant relatives." ("Lisān-ul-Arab", Vol 11, Pg 592)
Imām Muslim has quoted the following words in a hadith narrated by Jabir:
"O Prophet of Allah ! only kalālah are my heirs." (Kitab-ul-Farāidh, Chap 2)
Many traditions, in which Qur’ānic verses have been explained, endorse this meaning. Abu Bakr Jassās writes in his "Ahkām-ul-Qur’ān ":
"In this regard, there are two narrations attributed to Abu Bakr, Ali and Ibni Abbās. One of them says that all except the father and the children are kalālah and Mohammad Bin Sālim reports from Shu’ba, who reports from Ibni Mas’ūd that all except the father and the children are kalālah and Zaid Bin Thabit has also reported this meaning." (Vol 2, Pg 87)
Now, let us consider the verse under discussion. Though our jurists have unanimously preferred the first meaning here, yet the verse itself testifies against adopting this meaning. If we carefully analyze verses 11 and 12 of Sūrah Nisā from yūsī kumullāhu fī aulādikum, we observe that after a mention of the shares of the children and the parents, the Almighty has directed us to carry out the distribution of legacy by the words mim ba’di wassīyyatin yūsī bihā au dain (after the payment of any legacies he may have bequethed and after discharging any debts he may have left behind). The directive has been repeated in the shares of the spouses in the words mim ba’di wasīyyatin yūsīna bihā au dain and mim ba’di wasīytin tūsūna bihā au dain. A little contemplation shows that in all these instances the verb has been used in its active voice and the antecedent of yūsī, yūsīna and tūsūna is clearly stated in each of these sentences. But in the verse of kalālah , the verb has been used passively. This departure tells us that the subject (fā’il) of the verb yūsā ie, the legator in wa in kāna rajulun yūrathu kalālatan au imra’atan has not been stated. Therefore, in this verse the word kalālah cannot be regarded as an adjective for the deceased. The change conclusively testifies that the Qur’ān has not used the word in its first meaning ie, a person who does not leave behind either parents or children.
As far as the second and third meanings are concerned, any of the two can be preferred on the basis of a more delicate grammatical construction, because in both cases the implied meaning remains the same. Hence in this verse the verb yūrathu, in our consideration, is from the if’āl category used in its passive form and kalālah is maf’ūl lahu (an accusative on account of which something is done). Kāna here is an incomplete (nāqisah) and yūrathu is its predicate (khabr). Rajulun and imra’atun are the nouns (‘asmā) of kāna. Keeping in mind this analysis of the verse, it can be translated thus: ‘and if a man or woman is made an heir because of his (or her) kalālah relationship...’
Naturally, only the deceased person will have the right to make someone his heir. Since the second object of the passive verb yūrathu has not been stated, linguistic principles dictate that in the given context the verse should only mean that a kalālah relative can be made an heir together with the rightful heirs as well as in cases when a portion of the inheritance remains after it has been distributed among the rightful heirs and also when none of them is present.
Wa lahu akhun au ukhtun fa li kulli wāhidim minhumas sudus. Fa in kānū akthara min zālika fa hum shurakāu fi thuluthi min ba’di wasseyyatin yūsā bihā au dain ie, if a man or a woman from the associations of a single relationship is made an heir, then if the person who is made the heir has one brother or one sister, he (or she) will be given one sixth of what the heir himself receives and if the heir has more than one brother or sister then they shall share equally in a third of what the heir himself receives. After this there remains no need to say that the remaining five sixths or two thirds (whatever might be the case) shall be given to the person whom the deceased had made his heir. If it is said ‘Ahmad has made your son the heir of his wealth but if he has a brother then the brother shall be entitled to a third of his share’, it clearly means that after the brother receives his share the remaining money should be given to the son who has actually been made the heir.
This directive of the Qur’ān has a very sound reason behind it. Naturally, a deceased can choose to make any brother, sister, aunt or uncle (kalālah relatives) his heir. But there can be other brothers or uncles besides the one who has been made an heir by a deceased. The case is no different for sisters or aunts also. A person can prefer any uncle or aunt. But the Almighty does not approve the fact that all other associations of the same relationship should totally be deprived of any share. Therefore, if a person, for example, has made one of his paternal uncle, Saeed, the heir to his remaining estate in presence of two other paternal uncles then the two shall share equally in a third of what Saeed receives, and Saeed himself shall recieve the remaining two thirds.
Ghaira mudhāar. Wasseyyatim min Allah Wa Allāhu ‘Alīmun Hakīm. These words at the end of the verse serve as a warning that making someone an heir should not be a source of harm for any of the rightful heirs. To dispel any element of foul play, the Almighty Himself has designated the shares of the real heirs. Since, according to the verse a person can make any of his kalālah relatives his heir, it has been emphatically stated that while exercising this prerogrative the rights of a rightful heir should not be usurped ---This is not a piece of advice from an earthling. It is what the Creator of the heavens and the earth has directed us about. If any of His creation deliberately deprives a rightful claimant from his share then he should be aware that God has knowledge of all his deeds and if he errs unitentionally, the Almighty is Gracious and Merciful. He does not burden a person with a responsibility he cannot fulfil. All His directives bring ease and facility for His creation and are not meant to put them through hardship and difficulty.
Brothers and Sisters
Since according to our interpretation all brothers, sisters, uncles and aunts are kalālah and a person can make anyone of them his heir, it is possible that he might prefer an aunt or an uncle over his brothers and sisters. If a deceased has children, the nature of the directive is proper in all respects but if the deceased has no children and has brothers and sisters then this authority vested in him stands objected. It is an unquestionable reality that after one’s children, his brothers and sisters among his kalālah relatives are nearest to him. Common sense demands that in such a case they should receive a large portion of the legacy. Verses 11-12 of Sūrah Nisā clearly state that if a deceased has brothers and sisters, the parents shall receive a sixth each. Since this share is the same as what they receive in the presence of children, a question arises that whether it has still been left to the deceased to make the brothers and sisters his heirs or to deprive them a share in his wealth. While explaining verses 11-12 of Sūrah Nisā, we had written that the style of the verses is such that in the absence of children, the brothers and sisters of a deceased should be his heirs. But obviously, the meaning unfolded by a particular style cannot be as certain and definite as the one which is directly stated in words. In the absence of children, the question about the shares of brothers and sisters can even arise today. It had arisen in the time of the Prophet (sws) as well. Jabir reports:
"He says: I was sick and in a state of unconciousness when the Prophet of Allah arrived at my place. He performed ablutions and the people sprinkled some water over me from which the Prophet was performing his ablutions. When I came to my senses I said O Prophet of Allah all my heirs are kalālah ; at this, this verse5 of inheritance was revealed." (Muslim, Kitab-ul-Farāidh, Chap 2)
From the words ‘O Prophet of Allah all my heirs are kalālah ; at this, this verse of inheritance was revealed’ of the above tradition, it is evident that among the kalālah relatives the question was particularly about brothers and sisters and the last verses of Sūrah Nisā were revealed as a result of this inquiry.
A special style of the Qur’ānic verses is that in them certain questions have been stated in a very concise and compact form. The actual nature of the question and its back ground is revealed by the answer which the verses subsequently give. By not taking into consideration this style, our commentators have come across many difficulties in understanding qul lilāhu yuftīkum fil kalālah . Here also, if only the answer is analysed, the meanings the verse convey are very evident:
"People ask your pronouncement. Say: God enjoins you about your kalālah heirs that if a man dies childless and he has only a sister, she shall inherit half of what he leaves and if a sister dies childless then her brother shall be her heir; and if there are two sisters they shall inherit two thirds of what he [or she] leaves. If there are many brothers and sisters, the share of each male should be that of two females. God expoundeth unto you that ye err not and God has knowledge of all things." (4:176)
Qul lilāhu yuftīkum fil kalālah (God enjoins you about your kalālah heirs ) is of the same style and pattern as yūsī kumullāhu fī aulādikum (God enjoins you about your children). In the latter case, the directive is about the children as the heirs of a deceased while in the former case the pronouncement is about kalalāh relatives as the heirs of a deceased. The article alif lām defines the word kalālah in this verse, which testifies to the fact that the question concerns some specific relations among the kalālah relatives and the answer shows that these specific relations are the deceased’s brothers and sisters. Verse 12 of Sūrah Nisā has already empowered a person to bequeth a part of his legacy in favour of kalalāh relatives like uncles, aunts, brothers and sisters. Here, a particular case has been mentioned after the general directive. Considering this, the correct meaning of the verse is:’Say, Allah gives you a pronouncement about brothers and sisters among the kalālah relatives’. Another example of this Qur’ānic style can be seen in verse 189 of Sūrah Baqarah6.
It should be clear that the words in umru’un halaka laisa lahu walad.... (if a man dies childless....) do not state the meaning of kalālah ; they merely impose a condition which must be fulfilled if the brothers and sisters are to receive a share in a legacy. Just as in the verse Fa in lam yakun lahu walad wa warithahu abwāhu a condition has been imposed that if the deceased is issueless and only his parents are his heirs then they shall receive such and such shares. Similarly, in the given verse, a condition has been stated that if a person dies childless and he has brothers and sisters, their share is so and so. It is quite amazing that some people derive the meaning of kalālah from these words. It should be kept in mind, that the Qur’ān is not a dictionary. It is of a highly literary style revealed in the manifest language of Arabic. All its words are very well known and common Arabic words. We have conclusively proved above that the word kalālah is not alien to the Arabic language. Even if it is considered a rare word, it is a matter of literary taste to determine the meanings of such words from the context in which they are used.
Also evident from the condition in the verse is that brothers and sisters are heirs of a deceased, only in case he dies childless. If he leaves children, they do not have any share in his wealth except if a deceased makes a bequest in their favour according to the general directive mentioned in verse 12 of Sūrah Nisā.
The shares of brothers and sisters stated here are the same as those of the children stated earlier. Also, the style of the words In kānū ikhwatan rijālan wa nisān fa lizzakari mithlu hazzil unthayain (If there are many brothers and sisters, the share of each male shall be equal to that of two females’) bears witness to the fact that these shares also shall be given after the parents and the spouses are handed over their shares. We have presented the relevant arguments in the section which deals with the shares of the children. Hence, if the deceased only has sisters then two thirds or one half
(whatever the case may be) of the share meant for the brothers and sisters shall be given to the sister or sisters.
We have indicated earlier that it is evident from verse 12 of Sūrah Nisā that in the absence of children, the brothers and sisters of a deceased take their place. This particular verse of Sūrah Nisā conclusively proves the premise. It was possible to misinterpret it from the style of verses 11-12, but here all doubts have been removed as to what the words imply. The Qur’ān , therefore, says:
"God expoundeth unto you that ye err not and God has knowledge of all things." (4:176)
Left Over Legacies
According to our interpretation of the law of inheritance, if a deceased has only daughters or sisters, a portion of his wealth is left over after the heirs have been given their shares. Likewise, if a deceased does not have any children, parents, brothers, and sisters, a large portion of his estate remains undistributed. One solution to the problem, as indicated above, is that the Qur’ān itself has directed a person to make someone his heir. But if a person has not done so, what is to be done? The following tradition answers the question:
"Give the heirs their share and if something remains, it is for the closest male [relative]." (Muslim, Kitab-ul-Farāidh, Chap 1)
Summary
At the end of this discussion, we present a brief outline of the law. Every person can assess from this that how clear and simple the Islamic law of inheritance is. There is no question of ‘aul or rad in it. All its aspects are manifest and unambiguous. Both the bedouin of the deserts and scholars of the academies can distribute their legacies with equal ease.
The outline is stated thus:
1. If a deceased has outstanding debts to his name then first of all they should be discharged. After this any legacies he may have bequethed should be paid. The distribution of his inheritance should then follow.
2. After giving the parents and the husband or wife their shares, the children are the heirs of the remaining inheritance. If the deceased does not have any male offspring and there are only two or more girls among the children, they shall receive two thirds of the inheritance left over, and if there is only a single girl, her share is one half. If the deceased has only male children all his wealth will be distributed among them. If he leaves behind both boys and girls then the share of each boy shall be equal to the share of two girls and, in this case also, all his wealth shall be distributed among them.
3. In the absence of children, a deceased’s brothers and sisters shall take their place. After giving the parents and the husband or wife their shares, the brothers and sisters shall be his heirs. The proportion of their shares and the mode of distribution is the same as that of the children stated above.
4. If a deceased has brothers and sisters, whether or not he has children, the parents shall receive a sixth each. If he does not even have brothers and sisters then after giving the husband or wife his (or her) share, one third of what remains shall be given to the mother and two thirds to the father. If there is no one among the spouses, all of the inheritance shall be distributed among the parents in the same proportion.
5. If the deceased is a man and he has children, his wife shall receive one eighth of what he leaves and if he does not have any children his wife’s share shall be one fourth. If the deceased is a woman and does not have any children then her husband shall receive one half of what she leaves and if she has children, the husband’s share is one fourth.
6. Together with these rightful heirs, apart from them or in their absence a deceased can make a near or a distant relative except his parents, and children his heir. If the relative who is made an heir has one brother or one sister then he or she shall be given a sixth of his share and he himself shall receive the remaining five sixth. However, if he has more than one brother and sister then they shall be given a third of his share and he himself shall receive the remaining two thirds.
7. If a person dies without making anyone his heir, his remaining legacy shall be distributed according to the principle li aulā rajulin zakar (for the closest male).
8. The words "a deceased’s children" and "a deceased’s brothers and sisters" are used both in the singular and plural sense as well as for both the male and the female gender; whether there is only one or more boy or girl or there are only boys or there are only girls among the children and whether there is only one brother or sister or there are many brothers and sisters---in all the cases these connotations shall be considered understood.
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1. A person who receives a legacy.
2. A person who leaves behind a legacy.
3. "O ye who believe! do not make friends [with these Meccan people, these] enemies of Mine and yours. You offer them friendship whilst they have denied the truth that has come to you and drive away the Prophet and yourselves [from Mecca] because you believe in Allah, your Lord---If you come forth to fight [against them] for My cause and to please Me [and come forth] sending them secret messages of friendship despite the fact that I know full well all that you conceal and all that you reveal---and [inspite of this, if you still come forth like this, then] those among you who do so [should very well remember that] they have strayed from the right path." (60:1)
4. ie, the shares of two daughters are added to the share of the parents and the share of the husband---and the total sum exceeds one!
5. It has been explained in the Hadiths that by ‘this verse of inheritance’ is meant the last verses of Sūrah Nisā in which the shares of the brothers and sisters has been stated. Likewise, some other Ahādith clearly mention that Jabir only had sisters among his heirs.
6. See "Tadabbur-i-Qur’ān ", Amin Ahsan Islahi, Vol 1, Pg 471