Inheritance (1)

The law of inheritance is called ‘I lmil-farâyied, or Ilmil-mirâth’ – i.e. science of obligations of inheritance. The verses in the Qu’ran upon which the law of inheritance is founded begin at the 11^th verse of Chapter 4 of the Qu’ran. They are rendered as follows: -

“With regard to your children, God commands you to give the male the portion of two females, and if they be females more than two, then they shall have two-thirds of that which their father hath left: but if she be an only daughter, she shall have the half; and the father and mother of the deceased shall each of them have a sixth part of what he hath left, if he has a child; but if he has no child, and his parents be his heirs, then his mother shall have the third; and if he has brethren, his mother shall have the sixth, after paying the bequests he shall have bequeathed and his debts. As to your fathers or your children, ye know not which of them is the most advantageous to you. This is the law of God. Verily God is Knowing and Wise.”

“Half of what your wives leave shall be yours if they have no issue; but if they have issue, then a fourth of what they have shall be yours, after paying the bequests and debts.”

“And your wives shall have a fourth part of what ye leave if ye have no issue, but if ye have issue, then they shall have an eighth part of what ye leave, after paying the bequests and debts, if any.”

“If a man or woman makes a distant relation their heir, and he or she has a brother or a sister each of these two shall have a sixth : but if there are more than this, then shall they be sharers in a third after payment of the bequests and debts.”

“Without loss to any one. This is the ordinance of God, and God is Knowing and Gracious.” [4:11], The foregoing general rules of inheritance are detailed in the following [1]

The property of a deceased Muslim is applicable, in the first place, to the payment of his funeral expenses; secondly to the discharge of his debts; and thirdly, to the payment of legacies as far as one-third of the residue. The remaining two-thirds with so much of the one-third as is not absorbed by legacies are the patrimony of the heirs. A Muslim is, therefore, disabled from disposing of more than one-third of his property by will.

The clear residue of the state descends to the heirs; and among these the first are persons for whom the law has provided certain specific shares or portions and who are from there denominated the sharers or Za-wul-farûd in Arabic.

In most cases, there must be a residue after the shares have been satisfied; and this passes to another class of persons who, under that circumstance, are termed residuaries or ‘asaba in Arabic.

It can seldom happen that the deceased should have no individual connected with him who would fall under these two classes; but to guard against this possible contingency, the law had provided another class of persons who, by reason of their remote position with respect to the inheritance, have been denominated “distant kindred” Zawul Arhâm in Arabic.

Gifts and Donations

During his lifetime a Muslim has absolute power over his property. He may dispose of it in whatever way he likes. But such dispositions, in order to be valid and effective, are required to have operation given to them during the lifetime of the owner. If a gift be made, the subject of the gift must be made over to the donee during the lifetime of the donor; he must, in fact, divest himself of all proprietary rights in it and place the donee in possession. To make the operation of the gift dependent upon the donor’s death would invalidate the donations. So also in the case of endowments for charitable or religious purposes. A disposition in favour of a charity, in order to be valid, should be accompanied by the complete divestment of all proprietary right. As regards testament dispositions, the power is limited to one-third of the property, provided that it is not in favour of one who is entitled to share in the inheritance. For example, the proprietor may devise by will one-third of his property to a stranger; should the device, however, relate to more than one-third, or should it be in favour of a legal heir, it would be invalid.

Points of Contact

A Muslim upon his death may leave behind him a numerous body of relations. In the absence of certain determinate rules, it would be extremely difficult to distinguish between the inheriting and the non-inheriting relations. In order to prevent this difficulty and to render it easy to distinguish between the two classes, it is the general rule and one capable of universal application, that when a deceased Muslim leaves behind him two relations, one of whom is connected with him through the other, the former shall not succeed while the intermediate person is alive. For example, if a person on his death leaves behind him a son son’s son, this latter will not succeed to his grandfather’s estate while his father is alive.

Again if a person dies leaving behind him a brother’s son and a brother’s grandson and his own daughter’s son, the brother’s son, being a male  descended through the male line and nearer to the deceased than the brother’s grandson, takes the inheritance in preference to the others.

The law of inheritance is a science acknowledged even by Muslim scholars to be an exceedingly difficult object of study.