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 eg. 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 a right to bequeth his wealth in favour of the heirs designated by the Almighty Himself. The verse admonishes all ill-advised elements, who on the basis of their own intellect or personal inclinations may desire to ammend 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 words of the Prophet (pbuh) are based on this Qur’ānic injunction:
"Indeed, God has granted every rightful person his right. So no bequest can be made to a [lawful] heir." (Tirmizee, Kitaab-ul-Wasaayaa, Chapter 5)
Secondly, the law of inheritance as stated in the Qur’ān is based on the underlying cause of `benefit of kinship', as indicated by the words laa tadroona ayyuhum aqrabu lakum naf'aa (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 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 with 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 lagacy 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 a legacy. Therefore, in such cases if someone is deprived from his share then this will be in accordance with the purport of the verse, over which its words so clearly testify.
In the diverse nature of human relationships, there can be 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) Due to some reason, no relationship on the basis of religion remains between a legatee1 and a legator2.
2) If 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 someone's life? 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`oo wa natrukoo 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 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 after affirming it, 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.
The Prophet (pbuh) is said to have said:
"A Muslim cannot be an heir of a disbeliever nor can a disbeliver be a Muslim's." (Bukhaari, Kitaab-ul-Faraaidh, Chapter 26)
"The slayer shall not receive the legacy of a person he slays." (Tirmizee, Kitaab-ul-Farraidh, 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 Nisaa. 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 Nisaa 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 be only one girl then her share is half." (4:11)
The sentence Yoosee kumullaahu fee aulaadikum (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 aulaad denotes both 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:
(1) If the children of a deceased are only a boy and a girl then the boy will receive twice as much as the girl. (2) 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. (3) 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 beggars 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 nisaaan fauqathnataini fala hunna thulutha maa 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 kaanat waahidatan falahan nisf (and if there be 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 itself 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 two or more girls are to be stated separately due 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 itself bears evidence to a suppression of the word ithnatain before it. A little deliberation shows that the verse itself readily suggest this. 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 arrangement. In the last verse of Sūrah Nisaa, 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 falahaa nisfu maa taraka wa huwa yarithuhaa in lam yakunlahaa walad. Fa in kaanatathnataini fala humathuluthaani mimmaa 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. If there are many brothers and sisters, the share of each male shall be that of two females. God expoundeth unto you that ye err not and God has knowledge of all things).
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 waahidim minhumas sudusa mimmaa 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 nisaaan fauqathnatain or to wa in kaanat waahidah; in fact, it co-ordinates it with 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 istadraak) in nature. The reason is that though it is clear from the words lizzakri mithlu hazzil unthayyain 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 remaining should be distributed among the children. Our jurists are also of the same opinion. Abu Bakar Jassaas in his "Ahkaam-ul-Qur’ān" writes:
"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." (Volume 2, Page 80)
But our jurists have erred in regarding fa in kunna nisaaan fauqathnatain as an independent clause like wa li abwaihi and have started adding 2/3 to 1/3 and 1/4; whereas fa in kunna nisaaan 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 money 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 comprehend that after the clause fa in kunna waahidatan 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 nisaaan reads the verse, he 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 Abbaas comments on this in the following manner, as reported by Abu Bakar Jassaas in his "Ahkaam-ul-Qur’ān":
"Ataa bin Abee Ribaah narrates that he heard Ibni Abbaas speaking about the shares of inheritance, and specifically referring to `aul among them. He was saying `Do you people reckon that the one 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?' Ataa 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 Abbaas 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." (Volume 2, Page 91)
Consider, next, the remaining part of the verse:
The word walad in in kaana lahu walad (if he has children) and fa in lam ya kun lahu walad (if he does not have children) is used both for males 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 genders. 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 with 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, Annaa yakoonu lahu walad (how can He have children?). Obviously, walad here is meant both for the masculine as well as the feminine gender.
According to linguistic principles of Arabic, after the words fali ummihi thuluth (the mother's share is one third) the words wa li abeehi thuluthaan (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 abwaahu (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 kaana 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 abeehis 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 be 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 Hamaasi poet:
Iyyaaka wal amralazee in tawassa`at
Mawaariduhu dhaaqat `alaikal masaadiru
["Avoid entangling yourself in a matter in which if the paths that lead to it are wide, those that come out are narrow."]
The poet has used the words mawaarid and masaadir. It will be an 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 mawaarid amd masaadir 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, since 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 crude mathematical axioms. Our able scholars insist upon qualifying ikhwatun in numerical terms. They are adamant on a literal interpretation that must confirm to the norms of duality and plurality.
The words mim ba'adi waseeyyatin yoosee bihaa 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 eigth, 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.
(Translated from Ghamidi's "Meezaan")
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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)