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RELIGION

GRIEVOUS FAULTS IN DISTRIBUTING INHERITANCE It is quite unfortunate that Islam is the most misunderstood religion in the world, and the inheritance law in Islam is just one little example of many that needs to be clarified so people would realize the real wisdom and justice in Islam and start appreciating it and respecting it more. By Mufti Jaseemuddin Qasmi

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ur incomplete sense cannot decide any matter in a way that the decision becomes free from fault. But what Allah decides is of course away from all kinds of faults. Allah subhanahu tala knowing that wealth is such a thing in which people become overcome by greed to get it and sometimes they do not care for proper human values. That is why Allah Almighty called the love of wealth as fitna in the glorious Quran. Knowing the seriousness of

the distribution of the fortune left by a deceased person, He himself mentioned the law of legacy in the holy Qur’an in such detail that no other rules are explained in this way. And just after articulating the legacy rule, He says: ‘You do not know who, out of your fathers and your sons, who is closer to you in benefiting (you). All this is determined by Allah. Surely, Allah is All-Knowing, All-Wise [Surah Nisa: 12] This means Allah has apportioned shares for each heir

knowing everybody’s true state because Allah knows everything. So now we have no right even to think against the divine rule of inheritance. In this limited page, I will mention five important aspects about inheritance. 1.The responsibility of the deceased person and his wrong doing. 2. The choice of will in one’s own property. 3. Distribution of wealth in one’s lifetime..4. Common shortcoming in legacy. 5. Comparative study of Islamic inheritance laws with other religious laws.

The responsibility of the deceased person and his wrong doing

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he responsibility of a descendant is mentioned in a hadith. Allah’s beloved prophet (saws) said: ‘To leave your inheritors wealthy is better than to leave them in poverty, begging from people.’ So, one should not spend the wealth earned by lawful sources in his old age unnecessarily and it is also not appreciated to spend the whole wealth in the cause of Allah leaving the heirs indigent. That means if he is wealthy he should spend for the cause of Allah such as for orphans, for widows, for spreading Islam and for building a masjid and he should make will also in one third for these causes but not more than that. And if he does not have much wealth and his 35 EASTERN CRESCENT | JUNE 2014

heirs are also poor then he should not make will. Because to leave wealth for heirs is also a virtuous deed and order of Shariah. He should not try to deprive

his any heir of inheritance gifting whole wealth to others or adopting some legal ways to make his son the absolute owner depriving other heirs. Or if someone has just daughter then his brother or uncle may get a share. In this case, if he wants to deprive the brothers or uncles and for this purpose he may make an unlawful will for his daughter so that she could only possess all his riches. So, these types of distribution of inheritance are haram and Allah’s messenger (saws) prohibited it threatening a severe punishment on these acts. Prophet (saws) says: ‘Indeed a man, and a woman, perform deeds in obedience to Allah for sixty years, then death presents itself to them,


RELIGION and they cause such harm in the will that the fire becomes warranted for them.’ Then he recited: a part of surah Nisa’s ayah 12 which means: ‘After payment of legacies he (or she) may have bequeathed or debts, without causing harm.’ It means, even though the execution of the will and paying off the debts have precedence over the shares of the heirs, yet this rule should not be misused to cause harm to the genuine inheritors. If anyone makes a will or makes a false admission of indebtedness for depriving his inheritors, then, he is

doing something strictly forbidden and is committing a major sin. There are many ways where damage can be done through debt and will. For example, one may deliberately lie that he is in debt, just to let that be given to a friend or somebody else. Or, he lies about an unpaid loan he gave to somebody and said that the debt was paid off so that it does not pass on to the inheritors. Or, one may, during his illness culminating in death make a gift of more than one-third in the name of somebody. These are wrong ways of

distributing inheritance. Everyone who is going to bid farewell to this mortal world should do his best to stay away from doing this during the last moments of his life. Similarly, if some descendants would try to deprive his heirs of inheritance in any way, he will be in great loss in Hereafter. As Allah’s beloved prophet (saws) says: ‘If one restricts any inheritors’ share in legacy then Allah will restrict his share in paradise.’ So if our wealth will not benefit us after death then at least it should not harm us also.

a right. So there is no will for an heir.’[Tirmizi] But after the death of maker of will, if all other heirs approve his will then it would be executed. It is to be noted that whatever is given as gift to other in the

sign of being an owner of the property. Everyone knows that nowadays transfer of property is only for avoiding the several kinds of excessive government taxes laid upon proprietors. Or in some cities like Mumbai, people name different rooms after their sons, so that when the time will come for redevelopment they will get rooms according to the numbers of the name. So, in this case, the sons do not become owners and if their father dies then his heirs will take in whole estate of the deceased. If this had been a real transfer, father would have used the word of Hibah or Ateeyah or any word that authorizes the nominee to use it according to his will along with other conditions of Hibah or gift. Therefore, all other sons, daughters and heirs will get their inheritance from that property.

The choice of will

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ne is permitted to endow the property or to make will only in one third of his property. As it is mentioned in Bukhari that once prophet (saws) attained a sick companion Saad (ra) who then asked the prophet (saws): ‘I am a well-to-do person but I have no legatee except my only one daughter. May I give two thirds of my property in charity?”! He said, “No.” I said, “Half of it?” He said, “No.” I said “One third?” He said, “One third is too much.’ Moreover, will can be made only for someone who is not a genuine inheritor. For example, for grandson in the presence of son. If someone makes will for his valid heir, it is invalid as Prophet (saws) says: ‘Indeed Allah, Most Blessed and Most High, has given the right due to everyone deserving

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It is to be noted that whatever is given as gift to other in the illness culminating in death, that is considered a will so the same rule of will would apply to it. illness culminating in death, that is considered a will so the same rule of will would apply to it. That means the receiver should be a non-heir and the will can be executed after debt and in third of the fortune left by the dead person. Being a nominee is not a


RELIGION

Distribution of wealth in lifetime

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nheritance comes into existence after one’s death. So, in one’s life time, his heir cannot claim for inheritance. Division of wealth in life is a gift, so the rule of gift will apply to it. And the rule of gift is that one should give everyone among his offspring equally. So, if someone divides his wealth in his lifetime, then it is order of Shariah

that he should divide it among his children equally and give even

daughters equal that of sons. Once, the father of Hazrat Noman bin Bashir visited the Prophet (saws) and said: ‘I have gifted a slave to my son. Allah’s Messenger (saws) said: Have you donated to every one of your sons like this? He said: No. Thereupon Allah’s Messenger (saws) said: Then take him back.’ [Muslim].

Common shortcomings in legacy

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very common shortcoming is seen in giving women’s shares. While Allah Almighty gave importance to the portions of daughters as He said: “Lizzakari Mislu Hazzil Unsayain” ‘to the male a portion equal to that of two females’. (4. 11) It means, Allah has not directly mentioned the portion of sons but He mentioned their portions by mentioning the portions of daughters, so that we may consider the value of female’s share. There are some brothers who say that since their father has spent a lot of money on their sisters’ marriages, therefore, sisters would not get anything from inheritance. This is a wrong statement which is against the law of Allah. Who could dare to change the law of inheritance that Allah Himself has laid down? Allah (swt) never asks anybody to spend his property lavishly. The extravagance in the marriage for no other reason than to show off, cannot cancel the right 37 EASTERN CRESCENT | JUNE 2014

confirmed by Allah. Moreover, what a father spends on his children during his lifetime is considered as Hibah or gift. That is not counted in inheritance, because inheritance is a right, confirmed only after one’s death. Therefore, to count the

expenditures, that father has made during his lifetime, as their share and on that basis to deprive the sisters of inheritance is a heinous crime as well as deviation from Shariah. There are some people who request their sisters to give up their rights and the sisters either under the pressure of society or to continue their harmonious relations, willingly

or unwillingly surrender their rights of inheritance and brothers take all the inheritance. So, this is absolutely unlawful in the sight of Shariah and the shares of sisters taken by their verbal permission do not become Halal for brothers. Because, this type of permission is given always under pressure. The Prophet of Allah (saws) said “It is not allowed for a man to take his brother’ stick without his cordial consent and this is because; Allah prohibited a Muslim severely to use a Muslim’s wealth.” [Al-Sunanussagir lil Baihaqi-2132] Well, if brothers distribute the inheritance and hand over the portions to each sister then sisters return their portions to their brothers then only brothers can use it. Or sisters take some special thing out of their father’s fortune and gave up their shares and then brothers can use their shares, and this is also a permissible which is called in shariah ‘Takharuj’. Those who disrespect the law of inheritance are regarded as


RELIGION snatchers of others’ property and rights. Allah (swt) has given a severe warning against the violation of the law of inheritance. Distribution of inheritance is a divine law and to abide by that law is an act of virtue and a way to derive Allah’s pleasure and to violate that sacred law is to devise a way to Hell. Allah Almighty revealed two Ayahs just after articulating the legacy rules. One speaks about those

who fulfill their duty regarding inheritance while other speaks about those who do not accomplish this important duty. He says: ‘These are the limits set by Allah. And whoever obeys Allah and His Messenger, He will admit him to gardens beneath which rivers flow, remaining there forever. And that is a great success. And whoever disobeys and transgresses Allah and His Messenger and crosses the

limits set by Him, He shall admit him to the fire, and he will remain there forever. And for him there is a humiliating punishment. (Al Nisa13-14) Prophet (saws) also had said ‘Whosoever usurps a span of land of others illegally he, on the Day of Judgment, would be thrust into seventh layer of the earth.’ [Sahih alBukhari: 3196]

Comparative study of Islamic inheritance laws along with other religions It is quite unfortunate that Islam is the most misunderstood religion in the world, and the inheritance law in Islam is just one little example of many that needs to be clarified so people would realize the real wisdom and justice in Islam and start appreciating it and respecting it more.

Christian laws of inheritance

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et us look at Christianity “If a man dies and leaves no son, turn his inheritance over to his daughter. (Numbers 27:8 Bible)” Daughters can inherit only if their deceased father had no sons. Otherwise the sons receive the entire inheritance. According to Numbers 27:111, widows and sisters do not receive inheritance at all. Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male

relatives. The Quran abolished all these unjust customs and gave all the female relatives their just shares (4:7,11,12,176). It is quite obvious that Islam by far honors women in inheritance

more than the Christians do. The Bible doesn’t even regard the women’s existence in inheritance if a son is present. In Islam, on the other hand, the daughter gets half of what the son gets, because under the law of “Nafaqa”, the son is responsible to support his wife and kids, old parents and widowed sisters. In Islam, the wife doesn’t have to provide any financial support to her family. Only the man does. So, it is very fair for the man to get inheritance equivalent to two women in Islam.

only to his male descendants, so the Promised Land passes from one Jewish father to his sons. If there were no living sons and no descendants of any

previously living sons, daughters could inherit. A man’s sons inherit first, daughters if no sons, brothers if he has no children, and so on. Later, a further rule is laid

It is quite obvious that Islam by far honors women in inheritance more than the Christians do. The Bible doesn’t even regard the women’s existence in inheritance if a son is present.

Jewish laws of inheritance

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ccording to Jewish law of inheritance, the inheritance is patrilineal. The father —that is, the owner of the land— bequeaths 38 EASTERN CRESCENT | JUNE 2014


RELIGION down: if a daughter inherits land, she must marry someone within her father’s tribe. The firstborn son is entitled to a double portion of his father’s estate [Deuteronomy 21:17] This means that, for example, if a father left five sons, the firstborn receives a third of the estate and each of the other four receives a sixth. If he left nine sons, the firstborn

receives a fifth and each of the other eight receive a tenth. If the eldest surviving son is not the firstborn son, he is not entitled to the double portion. Here it is to be noticed that women are given no shares in the inheritance. Only daughter is inherited in the absence of all male descendants and brothers and their male offspring while in Islam

daughter, mother and wife are given shares in all conditions. Likewise, first born son is given double share just because he was born first while in Islam there is no difference between first born and last born. So, the discrimination between male and female and the reason of preference is beyond logic in Jewish law.

widow, multiple surviving sons or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.

In the case of females

Hindu laws of inheritance In the case of males

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he property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II. If there are no heirs in Class II, the property will be given to the deceased’s agnates or relatives through male lineage. If there are no agnates or relatives through the male’s lineage, then the property is given to the cognates, or any relative through the lineage of males or females. There are two classes of heirs that are delineated by the Act. Class I heirs are sons, daughters, widows, mothers, sons of a pre-deceased son, widows of a pre-deceased son, son of a predeceased son of a predeceased son, and widows of a pre-deceased son of a predeceased son. If there is more than one

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Class II heirs are categorized as follows and are given the property of the deceased in the following order: 1. Fathers 2. Son’s daughter’s son 3. Son’s daughter’s daughter 4. Brother 5. Sister 6. Daughter’s son’s son 7. Daughter’s son’s daughter 8. Daughter’s daughter’s son 9. Daughter’s daughter’s daughter 10. Brother’s son 11. Sister’s son 12. Brother’s daughter

The property of a Hindu female dying intestate, or without a will, shall devolve in the following order: 1. Upon the sons and daughters (including the children of any predeceased son or daughter) and the husband, 2. Upon the heirs of the husband. 3. Upon the father and mother 4. Upon the heirs of the father, and 5. Upon the heirs of the mother. Here one needs to ponder upon the fact that father gets nothing in the property left by his son if son’s sons, daughters, widows, mothers etc are living. And in the presence of sons, daughters and husband, father, mother will get nothing in the property left by their own daughters while they were the most affectionate and favoured people for them in the world. In Islam father and mother are never deprived of inheritance in the riches left by their offspring

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