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Chapter
27:
Wills and Inheritance (Hadith -- The
Traditions):
(Note:
The superscript-numbers [e.g., intention2]
that
appear in the text [in
pink]
refer to the numbers of the explanatory footnotes that
appear at the end of each Hadith
[Tradition].)
1
Ibn `Umar reported,
The Messenger of Allah, peace and blessings of Allah be on
him, said:
"It is not right for a Muslim
who has property regarding which he must make a will that
he should sleep for two nights (consecutively) but that
his will should be written down with him. (B. 55 :
1.)
2
Sa`d ibn Abi Waqqas said,
The Messenger of Allah, peace and blessings of Allah be on
him, used to visit me at Makkah, in the year of the Farewell
pilgrimage, on account of (my) illness which had become very
severe. So I said, My illness has become very severe and I
have much property and there is none to inherit from me but
a daughter, shall I then bequeath two-thirds of my property
as a charity? He said, "No". I said, Half? He said, "No".
Then he said:
"Bequeath one-third and
one-third is much, for if thou leavest thy heirs free
from want, it is better than that thou leavest them in
want, begging of (other) people; and thou dost not spend
anything seeking thereby the pleasure of Allah but thou
art rewarded for it, even for that which thou puttest
into the mouth of thy wife."1
(B. 23 : 36.)
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1
Sa`d later rose to prominence under `Umar as the
conqueror of Persia. The incident related here took
place in the 10th year of Hijrah as the mention of
the Farewell pilgrimage shows. This shows
conclusively that the order to make a bequest, as
laid down in 2 : 180, was never abrogated. The
hadith further shows that the will was prescribed
especially for charitable objects, and therefore
only one-third of the property could be disposed of
by will, so that the heirs may not be deprived
altogether.
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3
Abu Umamah said
I heard the Messenger of Allah, peace and blessings of Allah
be on him, say in his sermon in the Farewell pilgrimage
:
"Surely Allah has given to
every one entitled to anything his due, therefore there
shall be no bequest for one who
inherits."2
(AD-Msh. 12 :
20.)
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2
As the shares of the heirs are fixed by the Holy
Qur'an, a will in favour of the heirs would
practically be an annulment of that injunction. If,
however, the heirs agreed, there would be no
objection to a testator disposing of his property
in a particular manner.
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4
Anas reported,
The Messenger of Allah, peace and blessings of Allah be on
him, said to Abu Talhah:
"Give it to the needy from
among thy near relatives." So he gave it to Hassan and
Ubayy ibn Ka`b, . . . . and they were nearer to him than
myself. 3
(B. 55 : 10.)
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3
Here we are toldAbu Talhah had certain property
which he wanted to devote to charitable objects.
The Holy Prophet advised him to give it to his own
needy relatives who were not entitled to receive
anything as heirs.
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5
It is mentioned that the Prophet, peace and blessings of
Allah be on him, ordered the debt to be paid before the
execution of the will.4
(B. 55 : 9.)
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4
The debts take precedence because the property to
which the will relates can only be ascertained
after the debts are paid.
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6
Usamah reported,
The Prophet, peace and blessings of Allah be on him, said:
"The Muslim does not inherit
from the unbeliever, nor does the unbeliever inherit from
the Muslim."5
(B. 85 : 25.)
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5
For eight years at Madinah the Muslims and the
disbelievers were divided into two camps at war
with each other, and this order was probably given
under these circumstances.
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7
`A'ishah reported,
When the Messenger of Allah, peace and blessings of Allah be
on him, died, the wives of the Prophet, peace and blessings
of Allah be on him, intended sending `Uthman to Abu Bakr,
demanding their share of inheritance. `A'ishah said, Did not
the Messenger of Allah, peace and blessings of Allah be on
him, say:
"We are not inherited;
whatever we leave is a charity." (B. 85 : 2.)
8
Ibn `Abbas reported,
The Prophet, peace and blessings of Allah be on him, said:
"Give the appointed portions
to those entitled to them. Then whatever remains is for
the nearest male."6
(B. 85 : 4.)
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6
This is considered to be the, basic rule in
inheritance. The appointed portions are given in v.
3. If anything remains after that, it goes to the
nearest male relative.
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9
Zaid said,
When a man or a woman leaves behind a daughter, she gets
one-half; and if there are two (daughters) or more, they get
two-thirds; and if there is a male with them, beginning is
made with him who inherits with them and he is given his
appointed portion, and what remains (is divided among the
children), the male having the portion of two
females.7
(B. 85 : 4.)
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7
The application of the rule given in the first part
fails in some cases. A person leaves both parents
who would take one-third, two or more daughters who
would take two-thirds, and a husband or wife for
whom nothing remains. If all the children are
treated alike, whether there are only sons or only
daughters or sons and daughters, the difficulty
would not arise. In the latter part of the hadith
it is stated that if there are sons and daughters,
beginning should be made with the person who
inherits with them. If this rule is applied in all
cases, the difficulty does not arise. Thus, if
there are parents and husband or wife along with
children, they will receive their shares first,
one-sixth each in the case of parents and
one-fourth or one-eighth in the case of husband or
wife, and the remainder would go to sons or sons
and daughters; but if there are daughters only,
they would take one-half or two-thirds of the
remainder, as the case may to be.
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10
Zaid said,
The children of a son take the place of a son, when there is
no son besides them; their males are like their males and
their females like their females; they inherit as they
inherit and they preclude (other relatives) as they prelude;
and the son of a son does not inherit with the
son.8
(B. 85 : 6.)
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8
The son's children are thus deprived if there is a
son living. There is nothing related from the Holy
Prophet in this respect and the companions had
different opinions in matters relating to
inheritance (h. 11). The opinion given by Zaid is,
therefore, not final. In B. 85 : 7, it is stated
that Ibn Mas`ud gave a certain portion to the
daughter of a deceased son, treating her as a
second daughter. Taking this case into
consideration, a deceased son's children should
take the place of their father.
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11
Ibn `Abbas said,
My son's son inherits from me precluding my brothers, why
should I not inherit from my son's son? And different
opinions are related from `Umar and `Ali and Ibn Mas`ud and
Zaid. (B. 85 : 8.)
12
Buraidah said,
A man from among the Khuza`ah died, and his inheritance was
brought to the Prophet, peace and blessings of Allah be on
him. He said, "Search for his heir or one related to him on
the female side." But they could not find a heir for him,
nor one related on the female side. So the Messenger of
Allah, peace and blessings of Allah be on him, said :
"Give it to the nearest
connected with him through a great-grand-ancestor from
among the Khuza`ah"9
(AD-Msh. 12 :
19.)
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9
In this case the inheritance was given to a very
remote ancestor's descendants. According to the
hadith that follows, when no other heirs could be
found it was given to a freed slave. Only in
extreme cases was the property made over to the
State treasury (bait-al-mal), as stated in
h. 14. But then the State was also made responsible
for paying justly contracted unpaid debts of
deceased persons.
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13
Ibn `Abbas reported,
A man died, and he did not leave any heir except a slave
whom he had set free. The Prophet, peace and blessings of
Allah be on him, said,
"Has he any one (to
inherit)?"
They said, None, except a slave whom
he had set free. So the Prophet, peace and blessings of
Allah be on him, gave his inheritance to him. (AD-Msh. 12 :
19.)
14
Miqdam said,
The Messenger of Allah, peace and blessings of Allah be on
him, said:
"I am nearer to every believer than
his own self; so whoever leaves behind a debt or children to
support, it shall be our charge; and whoever leaves
property, it is for his heirs; and I am the heir of the
person who has no heir -- I inherit his property and
liberate his captivity.10
(AD-Msh. 12 :
19.)
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10
If there is a Muslim state, it would take the place
of the Holy Prophet; if not, the Muslim community
would inherit from the man who has no other heir,
near or distant.
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15
Jabir said,
The Messenger of Allah, peace and blessings of Allah be on
him, said:
"When a child is born crying,
funeral service is held over him and he is
inherited."
(IM-Msh. 12 : 19.)
16
Abu Hurairah said,
The Messenger of Allah, peace and blessings of Allah be on
him, said:
"The murderer does not
inherit." (Tr.-Msh. 12 : 19.)
17
`Amr ibn Shu`aib reported,
The Prophet, peace and blessings of Allah be on him,
said:
"Whoever holds illicit
intercourse with a free woman or a slave-girl, the child
(thus born) is illegitimate, and he does not inherit, nor
is he inherited." (Tr-Msh. 12 :
19.)
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