Kalaalah
In the end, the shares of kalaalah relatives have been stated:
"If a man or a woman is made an heir on account of his [or her] kalaalah 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 two, 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 kalaalah. Originally, it is a nomen verbum (masdar) in the meaning of kalaal which itself means `feebleness and frailty’. To quote a line from Aashaa’s poetry:
Fa aaa laitu laa ‘arthee lahaa min kalaalatin
("Then I swore that I shall not show any mercy on him because of his feebleness and frailty.")
Mutammim Bin Nuvairah says:
Faka ‘annahaa ba`dal kalaalati wassuraa
`alijun tughaaleehi qazoorum mulmi`oo
("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.
Zamakhsharee writes in his "Kashshaaf":
"Kalaalah 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: maa warithal majda ‘an kalaalah ie he could not become an heir of the old man because of a distant relationship. Likewise, you say: maa samata ‘an aee ie he did not become quiet because he was unable to speak and maa kaffa ‘an jubn ie he did not stop because of cowardice. And kalaalah is a nomen verbum (masdar) meaning kalaal. Kalaal means loss of strength because of weakness. Aashaa says: fa aaa laitu laa ‘arthee lahaa min kalaalatin i.e. then I swore that I shall not show any mercy on him because of his 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 zoo kalaalah. Similarly, you say falaanum min qaraabatee ie falaanum min zawee qaraabatee, and it can also be an adjective like hajaajah and faqaaqah 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 Tirmaah:
yahuzzu silaahan lam yarith hu kalaalatan
yashukku bihee minhaa ghumoodhal maghaabinee
("He is waiving 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 maa sawwadatnee `aamirun `an kalaalatin
("And the tribe of Amir did not make me the chief because of a distant relationship.")
Acording to "Lisaan-ul-Arab":
"The Arabs say lam yarith hu kalaalah ie due to his distant relationship be 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 verified by many examples in the pre-Islamic Arabic literature.
A Hamaasi poet, Yazeed Bin Al-Hakam, while admonishing his son says:
Wal mar’u yabkhalu bil huqooqi wa lil kalaalati maa yaseem
("Man shows miserliness in discharging his duties and after his death, his distant relatives take away his animals which graze in the forests.")
Azharee, has quoted a poet’s couplet:
Fa inna abal mar’i ahmaa lahu
Wa maulal kalaalati laa yaghdhaboo
("If a person is oppressed and persecuted, it is his father who, in his support, is infuriated the most. Kalaalah relatives are not infuriated to this extent in such a matter.")
To quote a Bedouin’s saying:
"I have alot of wealth and my heirs are kalaalah ie distant relatives." (Lisaan-ul-Arab, Vol 2, Pg 592)
Imam Muslim has quoted the following words in a hadith narrated by Jabir:
"O Prophet of Allah ! only kalaalah are my heirs." (Kitaab-ul-Faraaidh, Chap 2)
Many traditions in which Qur’ānic verses have been explained endorse, this meaning. Abu Bakar Jassaas writes in his "Ahkaam-ul-Qur’ān":
"In this regard there are two narrations attributed to Abu Bakar, Ali and Ibni Abbaas. One of then says that all except the father and the children are kalaalah and Mohammad Bin Saalim reports from Shu’ba, who reports from Ibni Masood that all except the father and the children are kalaalah 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 Nisaa from yoosee kumullaahu fee aulaadikum, 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 wasseeyyatin yoosee bihaa 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 waseeyyatin yooseena bihaa au dain and mim ba’di waseeytin toosoona bihaa au dain. A little contemplation shows that in all these instances the verb has been used in its active form and the antecedent of yoosee, yooseena and toosoona is clearly stated in each of these sentences. But in the verse of kalaalah the verb has been used passively. This departure tells us that the subject (faa’il) of the verb yoosaa ie the legator in wa in kaana rajulun yoorathu kalaalatan au imra’atan has not been stated. Therefore, in this verse the word kalaalah 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 yoorathu, in our consideration is from the if`aal category used in its passive form and kalaalah is maf`ool lahu (an accusative on account of which something is done). Kaana here is an incomplete (naaqisah) and yoorathu is its predicate (khabr). Rajulun and imra’atun are the nouns (‘asmaa) of kaana. 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 kalaalah relationship...’
Naturally, only the deceased person will have the right to make someone his heir. Since the second object of the passive verb yoorathu has not been stated, linguistic principles dictate that in the given context the verse should only mean that a kalaalah relative can be made an heir together with the rightful heirs, apart from them as well as in their absence.
Wa lahu akhun au ukhtun fa li kulli waahidim minhumas sudus. Fa in kaana akthara min zaalika fa hum shurakaau fi thuluthi min ba’di wasseyyatin yoosaa bihaa au dain i.e. 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 (kalaalah 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 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 mudhaaar. Wasseyyatim min Allah Wa Allaahu `Aleemun Hakeem. 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 kalaalah 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 unintentionally, 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 kalaalah 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 kalaalah 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 Nisaa 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 does the deceased has the authority in this case also to make the brothers and sisters his heir or to deprive them a share in his wealth. While explaining verses 11-12 of Sūrah Nisaa 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 obtained through the words used. 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 kalaalah; at this, this verse1 of interitance was revealed." (Muslim, Kitaab-ul-Faraaidh, Chap 2)
From the words `O Prophet of Allah all my heirs are kalaalah; at this, this verse of inheritance was revealed’ of the above tradition, it is evident that among the kalaalah relatives the question was particularly about brothers and sisters and the last verses of Sūrah Nisaa 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 the commentators have come across many difficulties in understanding qul lilaahu yufteekum fil kalaalah. Here also, if only the answer is analysed the meanings the verse convey is very evident:
"People ask your pronouncement. Say: God enjoins you about your kalaalah 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 borther 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 lilaahu yufteekum fil kalaalah (God enjoins you about your kalaalah heirs ) is of the same style and pattern as yoosee kumullaahu fee aulaadikum (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 kalalaah relatives as the heirs of a deceased. The article alif laam defines the word kalaalah in this verse, which testifies to the fact that the question concerns some specific relations among the kalaalah relatives and the answer shows that these specific relations are the deceased’s brothers and sisters. Verse 12 of Sūrah Nisaa has already empowered a person to bequeth a part of his legacy in favour of kalalaah 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 kalaalah relatives’. Another example of this Qur’ānic style can be seen in verse 189 of Sūrah Baqarah2.
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 kalaalah; they merely state 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 abwaahu a condition has been stated that if the deceased is issueless and only his parents are his heirs then they shall receive such and such a share. 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 kalaalah 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 kalaalah 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 Nisaa.
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 kaanu ikhwatan rijaalan wa nisaan fa lizzakari mithlu hazzil unthayain (If there are many brothers and sisters, the share of each male shall be 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 on that it is evident from verse 12 of Sūrah Nisaa that in the absence of children, the brothers and sisters of a deceased take their place. This particular verse of Sūrah Nisaa 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, Kitaab-ul-Faraidh, 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 bedouins 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 husbands 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 will be the same as that of the children stated above.
4. If a deceased has brothers and sisters whether he has children or not 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 eight 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 and one sister than he they 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 legacy shall be distributed according to the principle li aulaa rajulun 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, 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.
(Translated from Ghamidi’s "Meezaan")
_____________________
1. It has been
explained in the Hadiths that by `this verse of inheritance’
is meant the last verses of Sūrah Nisaa in which the shares of the brothers
and sisters has been stated. Likewise, some other Hadiths clearly mention
that Jabir only had sisters among his heirs.
2. See "Tadabbur-i-Qur’ān", Amin Ahsan Islahi, Vol 1, Pg 471