Verses 11–14

Chapter 4: Al-Nisāʾ (The Women) · Printed edition: Volume 8, pp. 1–39

بِسۡمِ ٱللَّهِ ٱلرَّحۡمَٰنِ ٱلرَّحِيمِ

In the name of Allah, the most Merciful, the most Compassionate

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ ۚ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ ۖ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ ۚ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِنْ كَانَ لَهُ وَلَدٌ ۚ فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ ۚ فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ ۚ مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ ۗ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا ۚ فَرِيضَةً مِنَ اللَّهِ ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا ١١

(4:11) Allah enjoins you concerning your children: The male shall have the equal of the portion of two females; then if they are more than two females, they shall have two-thirds of what (the deceased) has left, and if there is one, she shall have the half; and (as for) his parents, each of them shall have the sixth from what he has left if he has a child, but if he has no child and (only) his two parents inherit him, then his mother shall have the third; but if he has brothers, then his mother shall have the sixth after (the payment of) any bequest he may have bequeathed or a debt; your parents and your children, you know not which of them is the nearer to you in usefulness; an ordinance from Allah: Surely Allah is knowing, Wise.

al-Īsāʾ and al-tawsiyah means to entrust, to enjoin; al-Rāghib says:

al-Wasiyyah is to direct someone —with a shade of exhortation—to do something.

The use of the word al-awlād (children) instead of al-abnāʾ (sons) shows that the rule of one or two shares is restricted to the deceased’s immediate children. As for the children’s children, how low so ever, they should get the share of their progenitor through whom they are connected to the deceased; thus a son’s daughter would get two shares while a daughter’s son would be given one share—provided there is no one nearer to take their precedence. Likewise, the offspring of brothers and sisters would get the share of him or her through whom they are connected to the deceased. [All this is inferred from the word, al-awlād whose root word signifies birth.] But the word, al-b. (son) does not necessarily mean immediate child, as the word, al-ab (father) may be used in a general sense for other than the immediate progenitor.

As for the divine words at the end of the verse: your parents and your children, you know not which of them is the nearer to you in usefulness, we shall explain later that there is a special consideration which has made the word, al-abnāʾ (lit. sons) preferable to al-awlād (children).

The expression, ‘‘The male shall have the equal of the portion of two females’’, was chosen to point to the nullification of the system prevalent in the era of ignorance whereby women were not given any share in inheritance. This expression takes the females’s share as granted and confirmed,and based the male’s share on it—that it is double of it. Or let us say that the female’s share is treated as the yardstick of legislation and the male’s share is fixed with its help. If it were not for this consideration, it could simply be said: the female shall have the half of the male’s share; but it would not have given that connotation, and the context would have changed—as you may see. This theme has been mentioned by a scholar and the point seems well-established. The idea is also strengthened by the fact that the verse does not describe explicitly and independently except the women’s shares; if and when it explains some of men’s shares it is always done as an adjunct to the women’s shares, as may be seen in the following verse and in the verse at the end of this chapter.

In short, the statement, ‘‘The male shall have the equal of the portion of two females’’, explains the beginning clause ‘‘God enjoins you concerning your children’’. The definite article in ‘‘the male’’ and ‘‘the two females’’ denotes genes or category, i.e., the category of male is equal in share to the two of the female category. This principle shall be applied when there are males and females among the heirs, as the male shall have twice the share of a female. The verse did not use such expressions as, ‘‘The male shall have equal to two shares of a female’’, or, ‘‘double of a female’s share’’; because the chosen expression explains also the share of two females when they are the only heirs, as will be explained later—and all this with such brevity.

In any case, when there are males and females among the heirs, every male shall have two shares and every female one share—no matter what their number may be.

... then if they are more than two females, they shall have two-thirds of what (the deceased) has left,: This sentence, coming after the preceding one, The male shall have the equal of the portion of two females, apparently shows that it is in conjunction with a deleted but understood clause, i.e., ‘This law is when there are males and females among the heirs’, but if they are more than two females ... Such deletion is common in usage. For example, look at the following two verses:

And complete the hajj and ʿumrah for Allah, but if you are prevented,

(send) whatever offering is easy to obtain ().

For a counted number of days; but whosoever among you is sick or on a journey, then (he shall fast) a (like) number of other days ().

The conjunctive personal pronoun hidden in the verb kunna (they are) refers to the ‘children’ (in the phrase, ‘‘your children’’); the feminine gender has been used to make it agree with the predicate ‘females’; the other such pronoun hidden in the verb, ‘‘has left’’, refers to ‘the deceased’, which is understood from the context.

... and if there is one, she shall have the half,: The pronoun refers as above to the ‘‘the child’’, understood from the context, and its feminine form agrees with the predicate; ‘‘the half’’ refers to the half of what the deceased has left—thus the definite article stands for the second construct of the genitive case.

The verse is silent about the share of two females, because it may be understood from the clause: The male shall have the equal of the portion of two females. Let us suppose there is a male and a female heir; according to this verse, the female shall have a third of the estate and the male, the two-thirds—as it is the share of the two females. In other words, two females shall have two-thirds of the inheritance. This much may be inferred from the verse in a general way, but it is not in itself the verse’s definitely fixed connotation; there would have been no contradiction if the verse had continued to say, for instance, and if there are two females they shall have a half (or the whole) of the estate. But the verse by its silence about their share confirms the inferred meaning; and the clear statement about the share of the more than two females indicates that the silence is intentional, and not an oversight. Moreover, the fact that they should get two-thirds of inheritance is confirmed by the Prophet’s practice, and the said sunnah has continued uninterrupted since the days of the Prophet till this day, with complete unanimity of the Muslim jurists—except one reported dissent by Ibn ʿAbbās.

This is the best explanation why the two females’ share has not been clearly stated. al-Kulaynī (may God have mercy on him!) has written in al-Kāfī: ‘‘Surely God has appointed the two females’ share as two- thirds; because He says: The male shall have the equal of the portion of two females; so when a man leaves a daughter and a son, the male shall get the equal of the two females’ share, that is, two-thirds; therefore the share of two females is two-thirds. After this, there was no need to say that two females would get two-thirds.’’

The same explanation has been quoted from the exegete, Abū Muslim: ‘‘(The said rule) is inferred from the divine words, The male shall have the equal of the portion of two females. A male with a female gets two-thirds; thus two-thirds shall be the share of two females.’’ But these two explanations are not perfect; they should be completed in the light of what we have written above. Ponder on it.

There are some other explanations given for this verse which are quite unworthy of divine words. For example, someone has written that the words; if they are more than two females, means, two females or more; thus this sentence contains the description of the share of two females as well as of more than two. Another writer has said that the share of two daughters is known by analogy from the law concerning two sisters (coming at the end of the chapter) where it apportions two-thirds to them. There are other similarly ridiculous claims.

... and (as for) his parents, each of them shall have the sixth of what he has left if he has a child ... then his mother shall have the sixth: The conjunction of parents with the law of the children, shows that the parents are co-sharers with the children and together they constitute one class. The words: ‘‘and (only) his two parents inherit him’’, indicate that they are the only heirs. The words: ‘‘but if he has brothers’’, (coming after the clause: ‘‘but if he has no child and [only] his two parents inherit him’’) show that brothers come into second class, after the class of sons, daughters [and parents], and they would not inherit as long as there is an heir of the first class—but the brothers shall partially exclude the mother from one-third [as it would be reduced to one-sixth].

... after (the payment of) any bequest he may have bequeathed or a debt;: Bequest and will has been enjoined by the divine words: Bequest is prescribed for you when death approaches one of you, if he leaves behind wealth ... (). Although in this verse bequest precedes debt, it does not contradict the sunnah which says that debt takes precedence of bequest at the time of payment; because sometimes during a talk one mentions less important things first and then progresses towards more important ones. It is done when an important matter, because of its position and strength, does not need as much emphasis as the unimportant one does—and giving precedence in description is one way of emphasizing. Accordingly, the words: ‘‘or a debt’’, put the things in ascending order or importance.

This also shows why ‘‘bequest’’ has been qualified by the words, ‘‘he may have bequeathed’’; it puts further emphasis on it, and also points to the necessity of showing reverence to the deceased and honoring his wishes when he has made a bequest. God has said: Whoever then alters it [that is, the bequest] after he has heard it, the sin of it then is only upon those who alter it ().

... your parents and your children, you know not which of them is nearer to you in usefulness;: It is addressed to the heirs, that is, the general public, inasmuch as everyone inherits his deceased relatives. The sentence alludes to the reason why the inheritance share of the parents differs from that of the children. It also provides a sort of education to them; that is why they have been addressed with the words: ‘‘you know not’’; and such expressions are commonly used by the people.

Had the verse been addressed to other than the heirs, i.e., to the dying people who would, after their death, be inherited by their parents and children, there would have been no reason to say: ‘‘which of them is nearer to you in usefulness’’; because apparently usefulness and benefit implies making use of, and benefitting from, the inherited property, and it fits on the heirs, not on the deceased.

The parents have been mentioned before the children; it is a sort of a hint that the parents are nearer in benefit than the children. It is like the verse: Surely the Safwah and the Marwah are among the signs of Allah ... (), as we had quoted the tradition that the Prophet had said: ‘‘I begin with what God has begun’’

From the point of view of relationship and considering the human sentiments, it is a fact that man feels more compassion towards his children than towards his parents. In his eyes, his child’s existence is his own—but not so that of his parents. Man’s parents have stronger connection with him, when compared to his children’s attachment to him. When usefulness is based on this principle, then at the time of dividing an inheritance, man should naturally get, for example, from his father a greater share than he would from inheriting, for example, his son—although it would appear from a superficial glance that the opposite should be the case.

This verse (i.e., your parents and your children, you know not which of them is nearer to you in usefulness) proves that God has based the inheritance law on a creative reality found outside imagination—like other natural Islamic laws.

This principle is also supported by other unrestricted Qur’anic verses which speak about legislation in general. For instance: Then set your face uprightly for the (right) religion in natural devotion (for the truth); the nature made by Allah in which He has made men; there is no alteration in the creation of Allah; that is the right religion (). In presence of such verses, it is unthinkable that the sharīʿah would contain such compulsory and unchangeable rules and laws, without there being to a certain extent basis for them in the creation.

It may possibly be inferred from this verses (your parents and your children ...) that children’s children would have precedence over grandfathers and grandmothers; the grandparents will not inherit as long as a child or a child’s child [how low so ever] is present.

... an ordinance from Allah ..: Apparently it is in accusative case governed by a deleted verb, e.g., obey, or, hold fast, etc. It has a reinforced emphasis that the described shares are decreed and fixed, and that they cannot be changed.

This verse prescribes the shares of the first class of the heirs, i.e., the children, the father and the mother, with all the variations, either explicitly or implicitly.

Explicitly: Shares of the father and the mother: They get a sixth each if the deceased has a child or children; but in the absence of children, the mother gets either one-third or one-sixth (depending on the details mentioned in the verse);

Share of a single daughter: She gets a half;

Share of several daughters when they are the only children: They get two-thirds;

Shares of sons and daughters when they are together: The male shall have the equal of the share of two females;

And to this is added the share of two daughters, and it is two-thirds, as explained above.

Implicitly: Share of the only son: He shall get the whole property; it is understood when we read the clause: The male shall have the equal of the portion of two females, in conjunction with the clause, and if there is one [daughter], she shall have the half.

Likewise, when he has left only the sons as heirs, they shall share it among themselves equally, because the clause, The male shall have the equal of the portion of two females, indicates that the males shall have equal shares among themselves.

The verse is truly amazing in its comprehensiveness with such brevity.

It should be noted here that the verse with its unrestrictedness shows that there is no difference whatsoever—in matters of inheritance—between the Prophet and the other people. We have seen similar unrestrictedness or generality in the divine words: Men shall have a share of what the parents and the near relatives leaves, and women shall have a share ... (). Someone has opined that the general Qur’anic declarations are not applicable to the Prophet, because he had announced them himself. But such views are not worth looking at. Of course, there is a dispute between the Sunnīs and the Shīʿahs whether a prophet is inherited by his heirs or whatever he leaves goes to charity. This originates from the tradition which Abū Bakr had narrated in the case of Fadak. This discussion is beyond the scope of this book; therefore we think it better not to go into it here; the reader should consult relevant books for it.

وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِنْ لَمْ يَكُنْ لَهُنَّ وَلَدٌ ۚ فَإِنْ كَانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمَّا تَرَكْنَ ۚ مِنْ بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ ۚ وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِنْ لَمْ يَكُنْ لَكُمْ وَلَدٌ ۚ فَإِنْ كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُمْ ۚ مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ ۗ وَإِنْ كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوِ امْرَأَةٌ وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ ۚ فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَٰلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ ۚ مِنْ بَعْدِ وَصِيَّةٍ يُوصَىٰ بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ ۚ وَصِيَّةً مِنَ اللَّهِ ۗ وَاللَّهُ عَلِيمٌ حَلِيمٌ ١٢

(4:12) And you shall have half of what your wives leave if they have no child, but if they have a child, then you shall have a fourth from what they leave after (payment of) any bequest they may have bequeathed or a debt, and they shall have the fourth from what you leave if you have no child, but if you have a child then they shall have the eighth from what you leave after (payment of) a bequest you may have bequeathed or a debt; and if a man or a woman leaves property to be inherited by neither parents nor offspring, and he (or she) has a brother or a sister, then each of them two shall have the sixth, but if they are more than that, they shall be sharers in the third after (payment of) any bequest that may have been bequeathed or a debt that does not harm (others); this is an ordinance from Allah: and Allah is Knowing, Forbearing.

The meaning is clear. The half share has been described in possessive case, ‘‘half of what your wives leave’’; but the one-fourth share is disconnected; and they shall have the fourth from what you leave; when on such occasions a possessive construct is disjointed, it becomes necessary to complete it with min (from)—either in words or implied and understood. This min gives the connotation of taking from and beginning; this meaning seems appropriate when the word related to min is a negligible portion of the whole, when it is a small part or ratio of the original, like one-sixth, one-fourth or one-third; but not when it is a larger portion like a half or two-thirds. That is why God has said: sixth from what he has left; the mother shall have the third; you shall have a fourth from what they leave—all this with disjointed possessive. But He has said: half of what your wives leave; two-thirds of what (the deceased) has left—all this in possessive case; also He has said: she shall have the half as the definite article, ‘‘the’’, stands for the second construct of the possessive case, i.e., half of what he has left.

... and if a man or a woman leaves property ... and Allah is Knowing, Forbearing: al-Kalālah is in fact a masdar which means to encompass; from it is derived al-iklīl (crown) because it encircles the head; also al-kull (whole, all, total) comes from it because it encompasses its parts; another derivative is al-kall (to be tired, dull); it implies a sort of wearisome encompassing against the one on whom he depends. al-Rāghib says:

al-Kalālah is an heir other than the child and the father. Again he says: It has been narrated that the Prophet was asked about al-kalālah. He said: ‘He who dies and does not leave behind a child or a parent.’ Thus he (the Prophet) has taken it as an attribute of the deceased; and both explanations are correct, because al-kalalāh is a masdar which encompasses the inheritor and the inherited, both.

Author’s comments: In that case, it is possible to treat kāna (was)—it is not included in the translation of the verse,) as an auxiliary verb, and ‘‘a man’’, as its subject, with ‘‘to be inherited’’, as an adjectival phrase related to the said subject, and al-kalālah as its predicate. Then the meaning will be as follows: and if a man or a woman who is to be inherited is neither a parent nor an offspring of the heir.

Also, we may take kāna (was) as a perfect verb, with, ‘‘a man or a woman to be inherited’’, as its subject, and kalālah as a masdar used as a circumstantial clause. The meaning again will be the same: that the deceased is neither a parent nor an offspring of the heirs. al-Zajjāj has reportedly said: According to those who have recited yūrithu (makes someone his heir), kalālah will be the object; and according to those who recite yūrathu (is inherited by), kalālah is a subjective, being a circumstantial clause.

The clause, that does not harm (others), also is a subjective and a circumstantial clause. al-Mudārrah (to harm, to impair). Obviously, it forbids the dying person to harm the heirs through the debt; he should not indulge in borrowing with intention of harming the heirs and depriving them of inheritance. Another interpretation: He should not harm their interest by bequeathing more than one-third of his property.

تِلْكَ حُدُودُ اللَّهِ ۚ وَمَنْ يُطِعِ اللَّهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِنْ تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ ١٣ وَمَنْ يَعْصِ اللَّهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَارًا خَالِدًا فِيهَا وَلَهُ عَذَابٌ مُهِينٌ ١٤

(4:13-14) These are Allah’s limits; and whoever obeys Allah and His Messenger, He will cause him to enter gardens beneath which rivers flow, to abide in them; and this is the great achievement. And whoever disobeys Allah and His Messenger and goes beyond His limits, He will cause him to enter fire to abide in it, and he shall have an abasing chastisement.

al-Hadd means a barrier between two things which prevents their mixing together and keeps their mutual distinction and differentiation intact, like the limit or boundary of a house or a garden. The word, as used here, refers to the inheritance laws and the decreed shares. God has shown their utmost importance by describing, in these two verses, the reward of obeying God and His Messenger in this respect, and the abasing everlasting chastisement for him who disobeys God and His Messenger.

Discourse

The discussion “A General Discourse on Inheritance” appears here in the printed volume. Read it in the Al-Mizan App.

Examining Narrations

1. ʿAbd b. Hamīd, al-Bukhārī, Muslim, Abū Dāwūd, al-Tirmidhī, al-Nasāʾī, Ibn Mājah, Ibn Jarīr, Ibn al-Mundhir, Ibn Abī Hātim and al-Bayhaqī (in his al-Sunan) have narrated from Jābir b. ʿAbdillāh, that he said: ‘‘The Messenger of God and Abū Bakr came walking to visit me (in my illness) in Banū Salamah. The Prophet found me unconscious; so he called for some water and made ablution with it; then he sprinkled (it) on me, and I gained consciousness. So I said: ‘What do you order me to do with my property? O Messenger of God!’ Then (the verse) came down: Allah enjoins you concerning your children: The male shall have the equal of the portion of two females.’’ (al-Durr al-manthūr)

Author’s comments: It has been repeatedly mentioned that it is possible for several ‘‘reasons of revelation’’ (which have been narrated to us) to combine in respect of one verse; nor is there any difficulty if the verse goes beyond the scope of those specific reasons; also possibly an event might have coincided with the revelation and the theme of the verse corresponded with that happening. Therefore, there is no difficulty in the above tradition because of Jābir’s report that he had asked: ‘‘What do you order me to do with my property? O Messenger of God!’’, and then this verse was revealed. We should not worry how Jābir could have asked that question when the division of inheritance was not his responsibility.

Even more strange is another tradition narrated in the same book through ʿAbd b. Hamīd and al-Hākim from Jābir that he said: ‘‘The Messenger of God used to visit me when I was sick. So I said: ‘How should I divide my property among my children?’ But he did not give me any reply; and then the verse was revealed: Allah enjoins you concerning your children ...’’

2. Ibn Jarīr and Ibn Abī Hātim have narrated from al-Suddī that he said: ‘‘The people of (the era of) ignorance did not give inheritance to the girls, nor to weak boys. Only that man inherited his father who had strength to (participate in) war. Then ʿAbd al-Rahmān, brother of the poet Hassān, died, leaving a wife, named Umm Kuhhah, and five girls. (Other) heirs came and took away the inheritance. Umm Kuhhah complained to the Prophet about it. Then God revealed this verse: then if there are more than two females, they shall have two-thirds of what (the deceased) has left, and if there is one, she shall have the half; then it was revealed about Umm Kuhhah: and they shall have the fourth from what you leave if you have no child, but if you have a child then they shall have the eighth from what you leave ...’’ (ibid )
3. The same two scholars of tradition have narrated from Ibn ʿAbbās that he said: ‘‘When the verse of shares [of inheritance] was revealed, in which God ordained what He ordained [of the shares] for male and female child and (for) parents, people (or, some of them) disliked it and said: ‘(How is it that) woman is given one-fourth or one-eighth, and daughter gets a half, and a small child is given (his share), while none of them can fight the people, nor can he gather booty?’ They used that (system) in the (era of) ignorance: They did not give inheritance except to him who could fight the people; and they gave it to the eldest, then elder [and so on].’’ (ibid.)

Author's Comments: al-Taʿsīb (agnacy) was a part of that system of ignorance. They gave the inheritance to the agnates of father if the deceased had not left a big son capable of fighting. The Sunnīs follow the same system in the excess property which is left after giving the prescribed shares. Perhaps something may be found about it in their traditions; but the traditions coming from the Ahl al-bayt totally reject this theory and say that the excess property shall be returned to those heirs who at other times bear the loss, and they are children, consanguine or agnate brothers and in some cases, the father. As mentioned earlier, the verses in their connotation agree with this verdict.

4. al-Hākim and al-Bayhaqī have narrated from Ibn ʿAbbās that he said: ‘‘The first person to introduce the system of al-‘awl (to reduce all shares proportionately) was ʿUmar. The shares crowded over and began pushing each other aside. So he said: ‘By God! I do not know what to do with you. By God! I do not understand which of you God has given precedence to, and which of you He has deferred. And I do not find for this property anything better than this: that I should divide it among you proportionately.’ ’’ Then Ibn ʿAbbās said: ‘‘By God! if he had given precedence to him whom God had given precedence, and put behind the one whom God had put behind, there would have been no need for proportionate reduction of shares.’’ He was asked: ‘‘And which of them has been given priority by God?’’ He said: ‘‘Every share which God has not brought down from a prescribed share but to (another) prescribed share, then that is which has been given precedence by God; and every share that—when it leaves its (original) position—does not get except the residue, then it is (the share) which God has put behind. Thus the share that is given precedence is like that of husband, wife and mother; and that which is put behind is like that of sisters and daughters. Therefore, if there gather together those who have been given precedence by God and those who have been placed behind, the division should begin with those having precedence, and he shall be given his complete share; then if something remains (of the property) it shall be for those [who have been placed behind] and if nothing is left they shall get nothing.’’ (al-Durr al-manthūr)
5. Saʿīd b. Mansūr narrated from Ibn ʿAbbās that he said: ‘‘Do you suppose that He Who knows the number of the sands of the valley, ʿAlij, has prescribed in the property one half, plus one-third plus one-fourth?’’ (ibid.)
6. ʿAtāʾ says: ‘‘I said to Ibn ʿAbbās: ‘People do not follow my word or your word; and when you and I shall be dead, they will not divide the inheritance according to your verdict.’ He replied: ‘Then let them gather, and then we (i.e., both parties) should put our hands on the rukn (of the Kaʿbah), then we should earnestly pray and put the curse of God on the liars. God has not ordered that which they say.’ ’’ (ibid.)

Author’s comments: This theme has been narrated from Ibn ʿAbbās also through the Shīʿī chains, as is quoted below.

7. al-Zuhrī quotes ʿUbaydullāh b. ʿAbdillāh b. ʿUtbah as saying: ‘‘I was sitting with Ibn ʿAbbās when the talk turned towards description of inheritance-shares. Ibn ʿAbbās said: ‘God, the Great, be praised! Do you think that He Who knows the number of the sands of (the valley) ʿAlij, has appointed one-half plus one-third in a property? Well, these two halves have finished the whole property; now where is the slot of the (remaining) one-third?’ Zufar b. Aws al-Basrī then asked him: ‘O Abu al-ʿAbbās! Who was then the first to reduce these shares?’ He said: ʿUmar b. al-Khattāb. When several shares gathered near him, pushing each other, he said: ‘‘By God! I do not know which of you God has given precedence to, and which of you He has deferred. And I do not find anything more accommodating than this: that I should divide this property among you proportionately, and let every right-owner get his right.’’ In this way he introduced the proportionate reduction of shares. By God! if he had given precedence to him whom God had given precedence to, and put behind whom God had put behind, there would be no need for proportionate reduction of shares.’ Zufar b. Aws asked him: ‘And which of them has He given precedence to, and which has He kept behind?’ He said: ‘Every share which God has not brought down from a prescribed share but to another prescribed share, that is which God has given precedence to. And as for that which God has kept behind, it is every share that—when it leaves its (original) place—does not get except the residue, it is (the share) which God has put behind. As for that which has been given precedence, [it is these]: the husband gets a half, but if a situation arises to bring his share down, he comes to one-fourth, nothing removes him from there; and the wife receives one- fourth, but when she comes down to one-eighth, nothing removes her from there; and the mother is allotted one-third, but when she moves from it, she goes to one-sixth, and nothing removes her from it. These are therefore the shares which God has given precedence to. As for that which He has kept behind, it is the share of the daughters and sisters—they are entitled to one-half or two-thirds, and when [other] shares remove them from it, they do not get except what is left, so these are whom God has kept behind. When there gather together those whom God has given preference and those whom He has kept behind, it (i.e., the division) will begin with those whom God has given precedence, and he shall be given his full share; then if something remains, it will be for him who has been kept behind; and if nothing is left, he shall get nothing.’ Then Zufar said to him: ‘Then what prevented you from offering this opinion to ʿUmar?’ He said: ‘His dread.’ ’’ (al-Kāfī)

Author’s comments: ʿAlī had rejected the theory of proportionate reduction of share, long before Ibn ʿAbbās did so. And it is the madhhab of the Imāms of Ahl al-bayt as is described below:

8. al-Bāqir said, inter alia, in a hadīth: ‘‘The Leader of the faithful used to say: ‘Most surely, he who knows the number of the sands of ʿAlij, (also) knows that the shares should not be deviated (i.e., reduced) from six; had you looked at its (proper) direction, it would not be more than six.’ ’’ (ibid.)

Author's comments: It is written in al-Sihāh: ‘‘ ʿAlij is a place in a valley with sands.’’ The Imām’s words, ‘‘the shares should not be deviated from six’’, means that no share could deviate in a way to change the six prescribed portions to some other portion. The six shares, explicitly mentioned in the Qur’an are as follows: a half, one-third, two- thirds, one-fourth, one-sixth and one-eighth.

9. al-Sādiq said: ‘‘The Leader of the faithful said: ‘All praise is due to God; there is none to let precede what He has set behind, and none to set behind what He has let precede.’ Then he struck his one hand with the other and again said: ‘O nation (that is) bewildered after its Prophet! If you had let that precede which God had given precedence to, and kept behind that which God had set behind; and had put authority and inheritance where God had put it, no friend of God would have remained in poverty, and no share from God’s ordained shares would have decreased, nor two people would have differed in God’s commandment; and the ummah has not disputed about any command of God but that ʿAlī has its knowledge from the Book of God. So (now) taste evil consequences of your affair and of your inordinateness in that which your hands have sent before; and God is not unjust to the servants; and they who act unjustly shall soon know to what final place of turning they shall turn back.’ ’’ (ibid.)

Author’s comments: A further explanation of how some heirs’ shares are decreased is given below:

The shares, according to the Qur’an, are six: a half, two-thirds, one- third, one-sixth, one-fourth and one-eighth. Sometimes these shares gather together in a way it creates problem. For in-stance, in the first class of heirs, there may exist a daughter, father, mother and husband.

Their respective shares are a half, two-sixths and one-fourth—the total [1 & 1/12] exceeds the original property [which is ‘one’]. Likewise, if there are two daughters, both parents and husband, their shares, two-thirds, two-sixths, and one-fourth [total = 1 & 1/4] exceed the original. In the same way, in the second class of heirs, there may exist together a sister, a paternal and a maternal grandfather, and a wife; and their shares, a half, one-third, one-sixth and one-fourth [total = 1 & 1/4] would exceed the original. Or, if there are two sisters, two grand-fathers and a husband, their shares—two-thirds, one-third, one-sixth and a half [total = 1 & 2/3] would far exceed the original.

If we reduce all the shares proportionately, it would be al-‘awl. On the other hand, if we leave the shares of parents, husband, wife and uterine relatives (i.e., one-third, one-sixth, a half, one-fourth and one-eighth) intact—because God has explicitly prescribed them and has not left them unexplained in any eventuality—then the deficiency will always fall on the shares of one or more daughters, and one or more consanguine or agnate sisters, and on the shares of male and female children—when there is one or more, for the reason explained earlier.

As for ‘‘returning’’ to the latter group, the property left after distribution of prescribed shares, the reader should consult books of hadīth and jurisprudence.

10. Al-Hākim and al-Bayhaqī (in his al-Sunan) have narrated about Zayd b. Thabit that he used to partially exclude mother [i.e., reduced her share from one-third to one-sixth] if the deceased had left two brothers. People said to him: ‘‘O Abū Saʿīd! surely God says: and if he has brothers ... [and plural in Arabic indicates at least three], and you are partially excluding her by [only] two brothers?’’ He said: ‘‘Verily the Arabs call two brothers al-ikhwah (brothers [in plural]).’’ (al- Durr al-manthūr)

Author’s comments: The same theme is narrated from the Imāms of Ahl al-bayt; although it is generally said that al-ikhwah is plural of al-akh (brother) and plural is not used for less than three.

11. al-Sādiq said: ‘‘The mother is not partially excluded from one- third except by (presence of) two consanguine of agnate brothers or four consanguine or agnate sisters.’’ (al-Kāfī)

Author’s comments: There are many traditions of the same theme. As for uterine brothers, they are connected to the deceased through the mother who by her presence debars them from inheritance. It is narrated in the traditions of both the Shīʿīs and the Sunnīs that the brothers partially exclude the mother, but they themselves do not get any share in inheritance because of the presence of the parents who have precedence over them in class. Thus the law, that the brothers partially exclude the mother while they themselves do not inherit anything, has been laid down keeping in view the position of the father—because the excess portion shall be returned to him. That is why the uterine brothers do not partially exclude the mother, because they are not the father’s dependants.

12. The Leader of the faithful said regarding the clause, after (the payment of) any bequest he may have bequeathed or debt: ‘‘Surely you recite in this verse the bequest before the debt, but the Messenger of God has decreed (to pay) the debt before the bequest.’’ (Majmaʿ al-Bayān)

Author’s comments: This tradition has also been narrated by al-Suyūtī in al-Durr al-manthūr from several traditionalists and exegetes.

13. al-Sādiq explained al-kalālah in these terms: ‘‘Other than parent and child.’’ (al-Kāfī)
14. The same Imām says about the clause: and if a man or a woman leaves property to be inherited by neither parents nor offspring, that God has meant by it specifically the uterine brothers and sisters. (ibid.)

Author’s comments: There are numerous traditions of this theme and the Sunnīs too have narrated them. The number of such traditions reaches near to mutawātir. These traditions also say that the law regarding consanguine and agnate al-kalālah is mentioned in the last verse of the chapter which says: They ask you for a decision of the law. Say: ‘‘Allah gives you a decision concerning the person who has neither parents nor offspring [].

It is a further proof of this explanation that the shares allotted to those relatives in that last verse exceeds the shares mentioned in this verse by double or even more. We know from the context and the above- mentioned verses that God has made a male’s share generally equal to that of two females—as far as possible. Relatives other than parents and children are connected with the deceased either through father and mother both, or through father or through mother alone. Naturally, the difference maintained between father and mother will be carried over to those relatives too, because they are connected through them. In other words, the consanguine or agnate relatives will get a larger share than the uterine relatives. It leads us to the above-mentioned conclusion that the verse giving smaller shares speaks about the uterine relatives and that prescribing larger shares about the consanguine or agnate relatives.

15. Muḥammad b. Sinān has narrated that Abu al-Hasan al-Ridā wrote in reply to his questions, inter alia: ‘‘The reason why women are given half of men’s share in inheritance: It is because when a woman marries, she receives (the dowry) and it is the man who pays; that is why men have been given more. Another reason why male is given twice of what female gets: It is because female is a dependant of male if she is in need; the male is obliged to maintain her and he is responsible for her sustenance; the woman is not liable to maintain the man nor is she held responsible to give his sustenance if he is in need; that is why men have been given more; and that is the word of God: Men are the maintainers of women because of that with which Allah has made some of them to excel the others and because of what they spend out of their property.’’ (Maʿāni al-akhbār)
16. al-Ahwal said: ‘‘Ibn Abi al-ʿAwjāʾ said: ‘Why is it that a poor weak woman takes one share and men take two shares?’ Some of our companions mentioned this to Abū ʿAbdillāh and he said: ‘Verily, there is no jihād on woman, nor maintenance nor blood-money, (all) this is on men, that is why woman was allotted one share and man two shares.’ ’’ (al-Kāfī)

Author’s comments: There are very many traditions of this import, and we have shown that the Qur’an too shows the same thing.

Discourse

The discussions “An Academic Essay on Inheritance”; “How Inheritance Began”; “Gradual Development of Inheritance”; “Inheritance in Civilized Nations”; “What Did Islam Do in Such a Situation?”; “The Position of Women and Orphans in Islam”; “Modern Inheritance Laws”; “Comparison of these Codes: One with Another”; “Will and Testament” appear here in the printed volume. Read them in the Al-Mizan App.

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1. Bismillāh al-Raḥmāni al-Raḥīm is a part—in fact, the first verse—of every chapter except the ninth. It is the well-known and unanimous verdict of the Ahl al-bayt who according to the Prophet were inseparable Companions of the Qur’an. According to al-Zamakhsharī, the reciters and jurists of Mecca and Kūfah, as well as al-Shāfiʿī and his followers are of the same view, as was Ibn ʿAbbās, who said that whoever leaves Bismillāh … , leaves 114 verses of the Book of God. (Vide al-Kashshāf, Beirut, vol. 1, pp. 24–26)

   But the author has followed the system of numbering used by the majority of the Muslims (including the Ḥanafites, the Mālikites and the reciters of Baṣrah and Syria) whereby they do not count it as a verse. Probably, he has done so to avoid confusion in references. [Trans.] ↩︎

2. The alleged tradition of Abū Bakr and the opinion based on it—that the prophets neither inherit anyone, nor anyone inherits them—is not so irrelevant to the exegesis of the Qur’an; because it goes directly against several Qur’anic verses, and accordingly it is necessary, for the purpose of removing any possible misunderstanding, to point to this contradiction. Suffice it to say that this tradition and the opinion are not only against the general and clear meanings of the verses of inheritance, but are also contradicted by some other verses. God says: And Solomon inherited from David (); again He says quoting Zachariah’s invocation: And surely I fear my relatives after me, and my wife is barren, therefore grant me from Thyself an heir, who should inherit me and inherit from the children of Jacob (). These verses cannot refer to prophethood or divine knowledge, because prophethood and divine knowledge come directly from God, they are not a thing to be inherited, nor was there any need for Zachariah to fear his relatives that they would take over the prophethood after him. The verses simply refer to inheritance of property (or, in case of the first verse, the Kingdom). Here we find Solomon and John inheriting properties from their fathers, David and Zachariah respectively; and all of them were prophets. Thus according to the Qur’an two prophets left their properties to their heirs, and two prophets inherited them. [Trans.] ↩︎

3. This explanation may be correct to a certain extent only. It is not all inclusive. For instance, the author has had to explain a single construction in two different ways to suit his purpose. Where the Qur’an says that, the mother shall have the third, he has implied that there is a min (from) hidden after it; but in another exactly the same construction, she shall have the half, he says that the word, the, stands for the deleted possessive construct, that is, it means, half of what the deceased has left. It is an arbitrary way of interpretation.

   We may interpret the verses in a more realistic way if we take the preposition, min (from) to denote, not the beginning, but al-tabʿīd (portioning), e.g., if we interpret, fourth from what you leave, as a fourth of a portion of your estate.

   Where the Qur’an uses the possessive case, it means that the prescribed share or ratio is to be taken out from the whole of the estate; and where it prescribes a certain share ‘‘from it’’, it means that the said heir shall get that share, not from the whole estate, but only from a part of it.

   Now let us look at each clause in this light:

   and (as for) his parents, each of them shall have the sixth from what he has left if he has a child: The eldest son is entitled to al-habwah (lit, gift; here it denotes gift of some personal effects of his father, like ring, sword, etc.) from the original estate before it is divided among the heirs. Therefore, the parents will not get one-sixth of the whole estate, as they will not get any share from the said habwah; hence ‘the sixth from’, not ‘the sixth of’.

   ... And you shall have half of what your wives leave if they have no child, but if they have a child, then you shall have a fourth from what they leave: When there is no child, the husband gets half of the whole property. But when there is a child, the son shall get the habwah before the estate is divided, so the husband will get a fourth of a portion of estate.

   ... and they [wives] shall have the fourth from what you leave if you have no child, but if you have a child then they shall have the eighth from what you leave: The wives never get their one-fourth or one-eighth share from the whole estate. It is because they are not entitled to any share in land; and as for other immovable property (like house, garden, etc.) they get only the price of their prescribed share, but not the property itself; and in case of there being a son, he is given the habwah before the division. Thus the wife always gets her one-fourth or one-eighth from only a portion of the estate.

   Other clauses, where possessive case has explicitly or implicitly been used, indicate that the heir gets his/her share from the whole estate. For example:

   then if they are more than two females,they shall have two-thirds of what (the deceased) has left;

   and if there is one,she shall have the half: but if he has no child and (only) his two parents inherit him, then his mother shall have the third.

   It is now clear that the two different styles have been used to describe two different legal eventualities. There is a solid legal reason behind the use of possessive case and that of the preposition, from. It is neither for literary beauty nor for denoting largeness or smallness of a prescribed share. [Trans.] ↩︎

4. Agnacy refers to surnames that evolve as a way to sort people into groups. ↩︎

5. The system of al-taʿsīb which Islam had taken such pain to abolish and eradicate, was revived for political reasons by the second ʿAbbāsid caliph, al-Mansūr, in the middle of the second century of hijrah. First a short description of that system in practice:

   Mr. Justice Ameer Ali (who, it is necessary to mention, was a Muʿtazilite, and not a Shīʿah, as he himself has repeatedly said in his hook, Mahommedan Law) says that in Arabia, prior to Islam, the inheritance ‘‘was governed by the rule of agnacy.’’ It means that only the relatives connected with the deceased ‘‘through males’’ were recognized as entitled to take a share in his inheritance. But neither women nor persons connected to the deceased through them had any right of succession.

   ‘‘Thus it was that whilst adopted sons and even slaves had rights, the children of daughters and sisters had no place in the customary rules which regulated succession.’’ (Ameer Ali, Mahommedan Law, vol.2,p.11)

   Now a background of the ʿAbbāsid dynasty:

   The ʿAbbāsids were descendants of al-ʿAbbās, an agnate uncle of the Prophet. The descendants of Fātimah were also descendants of ʿAlī, son of Abū Tālib who was a consanguine uncle of the Prophet.

   Before coming to power, the family of ʿAbbās, like other Hāshimites, generally followed the madhhab of the Ahl al-Bayt. As an example, we may refer to several traditions narrated in coming pages from both Shīʿī and Sunnī chains, from Ibn ʿAbbās, in which he has strongly denounced the system of al-ʿawl, innovated by ʿUmar.

   When the Hāshimites were planning to overthrow the Umayyad dynasty, the ʿAbbāsids had joined hands with the Hasanid branch of the Fātimids, although al-Imām Jaʿfar al-Sādiq had remained aloof from all these activities. It was agreed among the ʿAbbāsids and the Hasanids that for achieving success, they would install Muḥammad al-Nafsu al-Zakiyyah (The Pure Soul) as caliph. (He was a son of ʿAbdullāh b. al-Hasan [al-Muthannā II] b. [al-Imām] al-Hasan. Among those who did bayʿah (to give allegiance) to him, were Abu al-ʿAbbās al-Saffāh and al-Mansūr.

   Their slogan of ridāʾu āli Muḥammad (to please the progeny of Muḥammad) proved a success. People gathered behind their agents thinking that they wanted to remove the tyrant dynasty of the Umayyads and install a descendant of the Prophet in their place. When the Umayyads, were overthrown in 132 AH, it was not Muḥammad al-Nafs al-Zakiyyah who was put on the thrown, but the ʿAbbāsid, Abu al-ʿAbbās al-Saffāh, who was succeeded four years later by his brother, al-Mansūr.

   ‘‘They [the ʿAbbāsids] made the affection of the people for the children of Fātima as a means for their own elevation, and when they had attained the desired end they rewarded the Fātimides with bitter persecution.’’ (Ameer Ali, The Spirit of Islam, p.304)

   When conflict started between Muḥammad al-Nafs al-Zakiyyah and al- Mansūr, the latter left no stone unturned to prove the legitimacy of his claim. Among other devices (which this is not the place to mention) he revived the system of agnacy.

   Mr. Justice Ameer Ali writes:

   ‘‘When the Abbasides (sic.) succeeded in overthrowing the ʿOmmeyades (sic.) they found it necessary to legitimize their title to the Caliphate, for the eyes of the Muslim (sic.) world were still turned to the descendants of the Prophet as the rightful heirs to his temporal and spiritual heritage—and in effecting this they found their chief support in the doctrine of agnacy. They claimed that as descendants of the Prophet’s uncle, ʿAbbās, they were his ‘agnates’ and as such had a better title than the descendants of his daughter Fātima. And this was the keystone of the fabric built up by the ablest monarch of the House of ʿAbbās, Mansūr, the real founder of the Sunnī Church (sic.).’’ (Mahommedan Law, vol.2, pp.11—12).

   He further says:

   ‘‘The rule of agnacy has thus remained, chiefly from dynastic reasons, a part of the Sunni system. In early times it was as strongly enforced as under the old Romans. If a person died without leaving any ‘agnatic’ relation but a daughter’s or sister’s child, his property did not go to the latter but escheated to [that is, was taken over by] the Caliph. In 896 AC the Caliph Mʿutazid bʾlllāh (sic.) abolished this cruel rule; and laid down that in the absence of sharers and ‘agnates’ (ʿAsabāh), the ‘uterine relations’ should succeed. And this has remained the law ever since.’’ (ibid., p.12)

   Even then, according to him, the uterine relations are placed in the last category, and it is only in the absence of sharers, agnates and even the emancipator that they receive any share in the inheritance. (ibid. p.68)

   This was in short the origin of al-taʿsīb (agnacy) in Islam. It is necessary to point out two things before ending this note:

   First: As Ameer Ali has pointed out (and we have mentioned above) the ‘‘descendants of Fātimah were also descendants of ʿAlī, who, as son of Abū Tālib, was an agnate relative of the Prophet.’’

   In fact, ʿAlī was nearer than al-ʿAbbās to the Prophet, because Abū Tālib was a consanguine uncle of the Prophet, and not merely an agnate like al-ʿAbbās.

   Second: This whole argument was in fact fallacious and deceptive. In the heat of their political polemics neither Muḥammad al-Nafs al-Zakiyyah nor al-Mansur paused to think that Imamate was not an inheritance. It was based on appointment by God which is announced through the Prophet or the preceding Imam. al-Nafs al-Zakiyyah had based his claim on a falsity and al-Mansur replied him with a greater falsehood. [Trans.] ↩︎