Indexed OCR Text

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guests depart from there with their animals. They become property of one who picks them
up first of all.
SECTION I
الفَضْلُ الْآَوَّلْ
WHEN ONE FINDS DROPPED THINGS
(٣٠٣٣) عَنْ زَيْدٍ بُنِ خَالِدٍ قَالَ جَاءَ رَجُلْ إِلَى رَسُولِ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَسَأَلَهُ عَنِ الْلُقَطَة فَقَالَ إِعُرِفُ
◌ِفَاصَهَا وَوِكَاءَ هَا ثُمَّ عَرِّفُهَا سَنَّةً فَإِنْ جَاء صَاحِبُهَا وَإلَّا قَشَأْنِكَ بِهَا قَالَ فَضَالَّةُ الْغَنَّمِ قَالَ هِىَ لَكَ
أَوُ لِاَخِيْكَ أَوْ لِلذِّئِبِ قَالَ فَقَالَّةُ الْإِبِلِ قَالَ مَالَكَ وَلَهَا مَعَهَا سِقَاءُهَا وَحِذَاتُهَا تَرِدُ الْمَاءَ وَتَاكُلُ النَّجَرَ حَتُى
يَلْقَاهَا رَبُّهَا مُتَّفَقْ عَلَيْهِ وَفِيْ رِوَايَةٍ لِمُسْلٍِ فَقَالَ عَرِّفُهَا سَنَةً ثُمَّ أَعْرِفْ وِكَانَهَا وَعِفَاصَهَا ثُمَّ اسْتَنْفِقُ پِهَا
فَإِْ جَاءَ رَبُّهَا فَآَدِّ هَا إِلَيْهِـ
3033. Sayyiduna Zayd ibn Khalid As an , narrated that a man came to Allah's
Messenger صلى الله عليه وسلم and asked him about luqatah. Bear in mind its nature
(contained in a cloth or a leather bag) and its cork (or that with which is it fastened).
Make an announcement for a year. If its owner appears, hand it over to him,
otherwise it is your wish how you use it." The man asked about lost sheep (if
anyone catches them). He said, "It belongs to you. Your brother or the wolf." The
man then asked about lost camel He posed. "How is it your concern? They have
their water (in their bellies) and their feet with them and can go to their feet with
them and can go to the water and can eat trees till their master locates them."
According to another version in Muslim:
(When the man asked about luqatah,) the prophet ,J.,4,le ano said, "Announce about it
for one year, bear in mind its fastening and that in which it is placed. Use it for yourself.
If its owner comes, hand it over to him (if you have it intact otherwise its value).1
COMMENTARY: Ibn Maalik رحمه الله said that the Prophet صلى اللهعليه وسلم instructed anyone who
picks up the luqatah to bear in mind that nature of it because when any one claims it he
would know whether he describes it correctly or not. Imam Maalik ales, and Imam Ahmad
Àn tas, Say that in that case it is wajib (obligatory) to hand over the luqatah to the claimant
without having any witness. Imam Shafi'I at , and the hanafis say that if any one
describe, the nature and fastening, weight and number of the luqat ah and the man who
has picked it up is satisfied about the claimant 's truthfulness, then it is allowed to hand it
over to him. But the claimant cannot compel him to hand it over to him without any
witnesses. The wisdom in having to know well the nature and fastening is also that he
should be able to pick it out from his own goods.
1
The announcement of the find should be made where it is found and also in all public
places. Imam Shafi'I ale), Imam Maalik als), Imam Ahmad als>, and Imam Muhammad
altas, say that the announcement should be made for one year. But, Imam Abu Hanifah 4,
al and Imam Yusuf ale>>, say that no time period is fixed. They say that the hadith says one
1 Bukahri # 2429, Muslim # 1-1722, Tirmidhi # 1377, Abu Dawud # 1704, Ibn Majah # 2504, Muwatta
Maalik # 46 (Aqdiyah), Musnad Ahmad 4. 116
1
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year to suggest the waiting without making it binding. Hidayah quotes Imam Abu Hanifah
altas, as saying that if the value of luqatah is less than ten dirhams, it will be announced for
a few days. If it is worth ten dirhams then it should be made known for one month and if it
is two hundred dirhams then it will be announced for one year.
Some ulama (Scholars) say that even this is not a fixed limit. It depends on the judgement
of the picker till he is convinced that no claimant is likely to show up. According to one
version in Muslim, the period of one year is not mentioned.
If luqatah is something perishable than the announcement should be made till it begins to not.
If it is something very insignificant and of negligible value then no announcement is
necessary. However, the owner has the right to demand his thing.
If the owner of the luqatah comes after the announcement then it must be given to him if he
has witnesses with him then it is wajib (obligatory) on the person who had picked it up to
hand it over. If he has no witnesses then it is not wajib (obligatory) but permissible. If the
owner does not turn up after the announcement then the picker may keep it for his sown
use whether he is rich or poor. This is as most sahabah (Prophet's Companions) (sản(+)
say and Imam Shafi'I alta>, says. Some of the sahabah (Prophet's Companions) sano, say
that if he is rich, he must give it to some poor person as a charity. This is to what Ibn Abbas
and the Hanafis subscribe. If the owner رحمه الله Ibn Mubarak ,رحمه الله Sufyan Thawri رضى الله عنه
turns after the charity is given, then he may let the charity stay or get a redemption from
the picker of luqatah or the poor man to whom the charity was given, if that thing is no
more there. Whichever of the two pays the damages will not demand anything from the
other. If the luqatah is intact as it was then the owner will have to take it.
It is stated in Nihayah that it is better to keep the luqat ah for oneself after the
announcement though it is allowed to make a charity of it. If you catch a goat as luqatah
and the owner comes after the announcement, he will take it otherwise you will use it. So if
he takes it, he is your brother or if you do not catch it, then someone else will take it as your .
brother. It is allowed to benefit from it, otherwise the wolf would devour it. The same
command applies to every animal that its owner cannot take care of or he is not there and it
cannot be safe from the wolf.
The camel's belly is like a water skin that conserves water. The camel can go without.
drinking water for days together.
The camel's feet are strong. It can go up to its food and protect itself from wild animals.
The ulama (Scholars) say that this example of the camel applies to every such animal that
protects itself even in the absence of its master from wolf, etc. like horses and donkeys.
Imam shafi'I als», and Imam Maalik als>, deduce from this hadith that the camel, cow, etc,.
cannot be caught as luqatah in the desert. It is not allowed, but they may be caught in
villages and cities. The Hanafis say that it is mustahab (desirable) to catch all animals
everywhere and to announce the find in order to protect the property of the people both in
the desolate places and habitations.
The Hanafis say about this hadith that the command not to catch the camel was valid
during those times when most people were honest and good doers and the deceivers were
therefore, prevented from touching them. The same cannot be said these days.
LUQATAH MAY NOT BE KEPT WITHOUT ANNOUNCEMENT
(٣٠٣٤) وَعَنْهُ قَالَ قَالَ رَسُولُ اللّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَنْ أَوى ضَالَّةٌ فَهُوَ ضَالٌّ مَالَمْ يُعَرِّفُهَا - (رواه مسلم)

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صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Zayd ib Khalid .3034
said, "If anyone (picks up and) retains a stray thing (belonging to another) is misled
unless he makes the find known."1
LUQATAH OF THE HIL (LAWFUL) & OF THE HARAM (SACRED TERRITORY)
(٣٠٣٥) وَعَنُ عَبْدِ الرَّحْمُنِ بْنِ عُثُمَاتَ النَّبِيِّ أَكَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ تَى عَنْ لُقْطَةِ الْحَامِّ-
(رواه مسلم)
3035, Sayyiduna Abdur Rahman ibn Uthman al-Taymi sa+, narrated that Allah's
Messenger صلى الله عليه وسلم forbade anything that the pilgrims might drop.2
COMMENTARY: The luqatah in the sacred territory must be preserved till the owner
appears whenever that is and the announcement must be made. Imam Shafi'I als, abides
by this dictate. But, Imam Abu Hanifah als, maintain that the same ruling applies to the
luqatah of the haram (sacred territory) and of the hil (territory outside the haram). See the
chapter on Haram Makkah.
(Note: According to another copy of the Urdu translation: Anything found in the Haram
must be left where it is till its owner comes and take his ting. This is what Imam Shafi'I >,
à abides by. The Hanafi view is as stated in the foregoing lines.)
SECTION II
1
الفضل الثَّانِى
LUQATAH OF UNINHABITED PLACE AND BURIED TREASURE
(٣٠٣٦) عَنْ عَمْرٍو بُنِ شُعَيْبٍ عَنْ آَبِهِ عَنْ جَدِّمٍ عَنٌ رَّسُوْلِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ أَنَّهُ سُئِلَ عَنِ الثَّمَرِ الْمُعَلَّقِ
فَقَّالَ مَنْ أَصَابَ مِنْهُ مِنْ ذِئْ حَاجَةٍ غَيْرٍ مُتَّخِذٍ خُبْنَةً فَلَا شَهِىءَ عَلَيْهِ وَمَنُّ خَرَبٌ بِشَىءٍ مِنْهُ فَعَلَيْهِ غَرَامَةُ مِغُلَيْهِ
وَالْعُقُوْبَةُ وَمَنْ سَرَقَ مِنْهُ شَيْئًا بَعْدَ آَنْ يُؤُوِيَّةُ الْجْرِئْنُ قَبَلَّةَ ثَمَنَ الْمِجَنِّ فَعَلَيْهِ الْقَطُ وَذَگِرَ فِ ضَائَّةِ الإِلِ
وَالْغَنَّمِ كَمَا ذَكِّرَ غَيْرُهُ قَالَ وَسُئِلَ عَنِ اللُّقْطَةِ فَقَالَ مَا كَانَ مِنْهَا فِي الطَّرِيْقِ الْمِيْنَاءِ وَالْقَرْيَةِ الْجَامِعَةِ فَعَرِّفُهَا
سَنَّةً فَإِنْ جَاء صَاحِبُهَا فَادُفَعُهَا إِلَيْهِ وَإِنْ لَهُ يَاتٍ فَهُوَ لَكَ وَمَا كَانَ فِي الْحُرَابِ الْعَادِيِّ فَفِيهِ وَفِي الرَِّازِ
الْخُمُسُِ- رَوَاءُ النَّسَائِىُّ وَرَوَى أَبُوْدَاؤدَ عَنُّهُ مِنْ قَوْلِهِ وَسُئِلَ عَنِ الُّقطةِإِلى آخِرِهِ۔
3036. Sayyiduna Amr ibn Shu'ayb alus, narrated on the authority of his father from
his grandfather (Abdullah ibn Amr) « a +, that someone asked Allah's Messenger
about fruit hanging (from trees). He said, "If a needy person takes some صلى الله عليه وسلم
thing without carrying away any in his garment, then he is not to be blamed. But, if
anyone goes out with some of it, then he is to be fined twice its value and to be
punished. If anyone steals after they are placed where date s are dried and their
value comes to the prices of a shield, then his hands should be amputated." He
mentioned about camels and sheep that are found (as luqatah) as the other narrators
have mentioned. He also narrated that he was asked about luqatah. He said, if it is
1 Muslim # 12-1725, Musnad Ahmad 4-117.
2 Muslim # (1-1724, Abu Dawud # 1719, Musnad Ahmad 3-499.

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on a road commonly used in a large town, make the announcement for one year. If
its owner appears, give it to him. If he does not, then it belongs to you. If it is an old
(deserted) waste land, or if it is a hidden treasure of the jahiliyah (ignorance
period), then it calls for one fifth payment." The version in Abu Dawud is from the
Prophet's صلى الله عليه وسلم words: "And he was asked about luqatah" .... till the end.1
COMMENTARY: The needy may be any poor man who is in dine need or not in dine need
and bad shape. He may pluck fruit from the tree only as much as necessary. If he carries
any outside the according to Ibn Maalik aldas, though he will not be a sinner, yet he has to
pay for those fruit as wajib (obligatory). Or, this command was imposed in early Islam but it
stands abrogated now.
As for the words that he will have to pay twice its price, Ibn Maalik als, says that this is
only a warning, for, it is only the actual price that he will have to pay. Imam Ahmad aus,
also holds the same opinion. Some ulama (Scholars) says: that this command was operative
in early Islam and is now abrogated.
As for punishment, it refers to the persons fate. His hand will not be cut but he will be
awarded some punishment. In those days, gar dens were not protected and enclosed. If any
one stole from the piles of fruit of provision to the value of one seer then sin punishment
according to Shari'ah (divine law) was amputation of hand, which, at that time amounted
to three or four dirhams, or more. The Hanafis say ten dirhams and the Shafi is say four
dirham call for amputation of the hand. Shamni ales, has said that a seer (of the fruit) was
valued at ten dirhams in those times.
The luqatah found on a frequented path near a habitation must be made known, it being
wajib (obligatory) to do so. It is because there is every likelihood that it would belong to a
Muslim. As for the for luqatah that lies in an ancient unfrequented place where there is no
Muslim residence around, the command is that one-fifth should be paid in Allah's path as
charity. The rest may be used by the picker himself whether the luqatah is gold, silver or
any kind of jewellery or any other thing.
The same command applies to buried treasures in an ancient land.
REPLACEMENT IF LUQATAH HAS BEEN USED
(٣٠٣٧) وَعَنْ آَبٍ سَحِيْدِبِ الْخُدْرِيِّ آَّ عَلِيَّ بُنَ آَيْ طَالِبٍ وَجَدَ دِيْنَارًا فَاتٌ بِهِ فَاطِمَةَ فَسَأَلَ عَنْهُ رَسُوْلَ
اللهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ هُذَا رِزْقُ اللَّهِ فَاكُلَ مِنْهُ رَسُوْلُ اللَّهِ صَلَّى اللَّهُ
عَلَيْهِ وَسَلَّمَ وَاَكَلَ عَلِيٍّ وَفَاطِمَةُ فَلَمَّا كَانَ بَعْدَ ذَلِكَ أَتَتِ امْرَأَةٌ تَنْشُدُ الدِّيْنَارَ فَقَالَ رَسُولُ اللّهِ صَلَّى اللهُ.
عَلَيْهِ وَسَلَّمَ يَا عَلُ آذالدِّئْنَارَ- (رواهابوداؤد)
رضى اله عنه narrated that Sayyiduna Ali رضى الله عنه Sayyiduna Abu Sa'eed al KHudri .3037
found one dinar (as luqatah, abandoned property). He bought it to Sayyidah
fatimah رضى الله عنه . He then asked Allah's Messenger صلى الله عليه وسلم about it and he said,
"This is a provision from Allah's" So, Allah's Messenger صلى الله عليه وسلم consumed it
and Sayyiduna Ali رضى الله عنه and Sayyidah Fatimah رضى الله عنه also ate from it (what they
had bought with it). After that, a woman came looking for the dinar. So, Allah's
! Tirmidhi # 1293, Abu Dawud # 1710, Nasa'i # 1958, Ibn Majah # 2596, Musnad Ahmad 2280.

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Messenger صلى الله عليه وسلم said, "O Ali, pay the dinar (to her)."1
COMMENTARY: We cannot say from the hadith that Sayyiduna Ali was+, had used the
money without making an announcement about it. There is every possibility that he had
done that before spending the dinar.
The Prophet صلى الله عليه وسلم had the dinar paid to the woman because she might have
described the coin. Or, he might have learnt of her from other sources.
DO NOT PICK UP WITH EVIL INTENT
(٣٠٣٨) وَعَنِ الْجَارُ وْدِ قَالَ قَالَ رَسُوْلُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ ضَالَّةُ الْمُسْلِمِ حَرَقُ الثَّارِ - (رواه الدارمى)
3038. Sayyiduna Al-Jarud رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said,
"The lost property of the Muslim is a flame of fire."2
COMMENTARY: If anyone picks up a lost property with an evil intention then that will
take him to hell.
HAVE A WITNESS
(٣٠٣٩) وَعَنْ عِيَاضِ بْنِ حِمَارٍ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَنْ وَجَدَ لُقْطَةً فَاليُشْهِدُ ذَاعَدُلٍ
أَوْذَوَىْ عَدُلٍ وَلَّا يَكْتُمْ وَلَا يُغَيِّبُ فَإِنْ وَجَدَ صَاحِبَهَا فَلْيَرُدَّهَا عَلَيْهِ وَإِلَّا فَهُوَ مَالُ اللّهِ يُوتِيْهِ مَنْ يَشَاءُ-
(رواه احمد وابوداؤد والدارمى)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Iyad ibn Himar .3039
said, "If anyone finds a stray thing somewhere, then he must have one just man or
two just men as his witness. He must make announcement of it and not conceal it
nor consign it elsewhere. When he finds it owner, he should return it to him,
otherwise it is Allah's property. He gives it to whom He pleases."3
COMMENTARY: The finder of the luqatah must get someone to witness it so that no one
may accuse him of theft or pilferage. In this way, he himself will not be instigated to keep
the find for his own use. Moreover, if he dies suddenly, his heirs will not include that
property as his legacy.
Some ulama (Scholars) say that this command is mustahab (desirable) to obey others say that
it is wajib (obligatory) in nature. This hadith and the foregoing assert that if the owner is not
located, it luqatah is Allah's property. This means that it is lawful for the person who picks
it up when the owner turns up he will be reimbursed with a replacement.
WHEN IT IS NOT NECESSARY TO MAKE KNOWN
(٣٠٤٠) وَعَنْ جَابِرٍ قَالَ رَخَّصَ لَنَا رَسُولُ اللهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ فِي الْعَصَا وَالشَّوْطِ وَالْحَبْلِ وَأَشْبَاهِهِ
يَلْتَقِظُهُ الرَّجُلُ يَنْتَفِە پە-(رواهابوداود)
3040. Sayyiduna Jabir رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم had given
permission that a man might pick up (and put to his use) a stick a whip, a rope and
1 Abu Dawud # 1714.
2 Darimi # 2601, Tirmidhi # 1801, Musnad Ahmad 5-80.
3 Abu Dawud # 1709, Musnad Ahmad 4. 161 Darimi, Ibn Majah # 2505

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such other things that he picks up to use them himself.1
COMMENTARY: If he who picks up the luqatah (droped thing) is not well off, he may put
to his own use such things. as are mentioned in this hadith.
The ulama (Scholars) define the things of little value as worth less then dirhams, but some
of them say that there is worth one dinar or less then that as in the hadith (# 3038) about
رضى الله عنه Sayyiduna Ali
وَذُكِرَ حَدِيْثُ الْمِقْدَامِ بْنِ مَعْدِئْ كَّرِبَ آَلَا لَا يَحِلُّ فِيْ بَابِ الْإِعْتِصَامِ
And the hadith of Sayyiduna al-Miqdam ibn Ma'dikarib As ano, is narrated in the Chapter
V (# 163)
CHAPTER - XIX
AL-FARA'ID (SHARES OF INHERITANCE)
بَابُ الْفَرَائِضِ
:
The word fara'id is the plural of faridah which is derived from fard (compulsory) (meaning,
obligatory).
Fara'id are the shares of inheritance as determined by the Quran or hadith. This chapter
enumerates the heirs of a person who dies, namely his or her relatives who will be become
· their heirs, and in what ratio the legacy will be distributed among them.
Some important basic things and some principles and necessary rulings are here
brought together.
SEQUENCE OF HEIRS
The ulama (Scholars) say that four rights are attached to the legacy of a dead person.
(1)
The body should be shrouded and buried, meaning that it should be given a
bath and enshrouded, funeral salah (prayer) should be offered over it, and it
should be taken to the graveyard and buried in a grave. The expenses should
be borne from the legacy without being thrifty or extravagant.
(2)
Then if there is a debt people or other outstanding then they should be paid.
Thereafter
(3)
If the dead person had left behind a will then one-third of the residue should
be used for it. Then after that:
(4)
All the remaining wealth and property should be disbursed among the heirs in
the following order: The dhawil furud should be dispensed with first of all by
giving them their due share. After that whatever remains will go to the asabat
nasabi of the dead person because whatever remains after paying the dhawil
furud goes to the asabat nasabi being their right.
If the dead person has no dhawil furud then all the remainder will go to the asabat nasabi.
If there are no asabat nasabi then whatever remains after giving to the dhawil furud will be
given to one who had set him free if the dead had been a slave and had been freed. If the
one who had set him free is not alive then it will be given to the male asabat of the person
who had set him free. If there is none of them then the remaining portion of the legacy will
also go to the dhawil furud but not to the spouses because they have no share in the second
1. Abu Dawud # 1717.

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time distribution.
However, if there is none of these surviving - not dhawil furud, not asabat nasabi not
sabbi, then the inheritance will go to the dhawil arham. If even they are not there, then to
mawla-at mawalat. If they too are not there, then all the legacy will go to the person
whose relationship the dead person had mentioned, for instance, he may have said of
Zayd, "He is my father's son" though this cannot be proved in any other way what ever.
In spite of that he will be deserving of the legacy of the dead person. If there is no such
person too then the legacy will go to the person whom the dead person had named as the
beneficiary of all his property are wealth. If there is no such person too, then all the
property and wealth will go to the state Treasury. Finally. If there is no such thing to then
it will be spent on the heads of the state Treasury, like madrasahs (religious schools),
mosques, or the poor people, the needy, etc.
ABOUT DHAWIL FURUD
They are twelve in number:
(1) Father, (2) Grandfathers including great grandfathers, great, great grandfather and so
an (antecedent). (3) Akhyafi brother (that is, having different fathers but a common
mother). (4) Wife. (5) Husband. (6) Mother. (7) Grandmothers (either paternal or maternal),
including great grandmothers, great great grandmothers, and so on (antecedents) (8)
Daughter (9) Grand daughter. (10) Real sister. (11) Step sister. (12) Akhyafi sister.
SHARES OF DHAWIL FURUD
The father of the dead person get one-sixth portion when the dead person's son, grandson
or great grandson are alive. It these are not but the dead person's daughter, granddaughter
or great grand daughter are alive, then the dead person's father gets one-sixth portion and
will also be regarded an asbah. However, if the dead is survived by none of these
descendants of his father, then the father will only be an asbah.
In short, in the first case, the father is entitled to only the prescribed (fard (compulsory))
share. In the second case, he is not only entitled to the fard (compulsory) but also is an
asabah. In the third case, he is only an asabah.
If the dead person's father is not alive, then his grandfather will be like his father in all
three cases. If both his father and grandfather are alive then the grandfather stands
deprived, getting no inheritance at all.
They akhyafi brother and the akhyafi sister will get one sixth share of the legacy if there is
one of them. If they are two or more then all of them get one-third share to be divided
equally between males and females. If the dead person's father or grandfather is alive or
his son or son's children are there then the akhyafi brothers and sisters will be deprived.
If a man's wife dies without being survived by a son or a daughter and by children of her
son, then her husband will get half of her legacy. But, if her son or daughter or son's
children are there then he will get one fourth of the share.
When a woman's husband dies leaving behind no children and no children of his sons,
then she will get one fourth of the share but if any of them are alive then she will get one-
eighth of the share. If the husband had only one wife then she will get all that is mentioned
here. If he had two, three or four wives, then all of them together will get these shares
which they will divide among themselves.
The dead person's mother will inherit from him or her one-sixth of the legacy provided the
dead person's:
--
1

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son or daughter, or
son's son, or
-
his children, or
-
one sister, or
-
two brothers and two sisters, or more of them (whether real of step or akhyafi)
are alive ..
If none of them is alive, the mother will get one-third of the total legacy.
If the father or a spouse is alive with the mother, then after the share is given to them, the
mother will get one-third of the residue.
If instead of father the paternal grandfather is alive, then the mother will get one third of
the total legacy because, in this case, the grandfather does not take the father's place.
The paternal and maternal grandmothers get one-sixth share whether there be one or
many. If there is only the paternal grandmother she gets all the one-sixth. If there also is the
maternal grandmother, they both get the one-sixth which they shall divide, and so if there
are two paternal and two maternal grandmothers, they will divide among themselves the
one-sixth, provided they are all of the same rank (meaning, they are grandmothers and
none of them is a great grandmother). If they are of different rank then the distant relative
will remain deprived (meaning that the great grandmother will not get anything). In the
same way, in the presence of the mother, the grandmothers will get nothing. Besides, in the
presence of the grandfather, the father's grandmothers get nothing but the wife of the
grandfather, meaning father's mother is not deprived.
The daughter of the dead person is never deprived of inheritance. If her brother, meaning
the son of the dead, is present then she is asabah, otherwise she is dhawil furud. There are
two or three possibilities for a daughter deserving an inheritance.
(1)
There is only one daughter and she has no real or step brother. In this case,
she gets half of the legacy. (If there is no other heir than she gets the
remaining half too.)
(2)
If there are two or more daughters and they have no real or step brother, they
get two thirds of the legacy. They shall divide that equally among them.
(3)
If there is a son too with the dead man's daughters, then the daughter has no
inheritance. Rather, she becomes an asabah. This means that every daughter
.will get half of what a son gets no matter how many daughters there are. Thus,
if a dead person has many daughters, and many sons, the distribution of the
legacy will be:
two shares for every son and one share for every daughter.
In the absence of a daughter, a son and son's son of a dead person who has only one
granddaughter (son's daughter), this grand daughter will get half of the legacy If he has
two or more (such) grand daughters, they will be given two-thirds of the legacy. They will
distribute that among themselves equally.
If the dead person has no son no son's son and no son's grandson but only one daughter,
the granddaughter (from his son) will get one-sixth share even if there are more of them.
(They will share)
If the dead person has two or more daughters, the granddaughter will be deprived completely.
If, however, there is, besides the grand daughter, a grandson too even down the line (great
grandson) or a real or step-brother of this granddaughter or paternal cousin, then even if
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asabah. This means that atter dhawil furud have been given their shares, the residue will be
distributed between the grandson and granddaughter in the ration of zil.
It must be remembered that if the dead person's son is alive then this granddaughter will
get nothing at all.
If the dead person is survived by no children and grandchildren (from his son), then his
grand daughter will take place of all of them. If the daughter is alive then her children will
be deprived If the granddaughter (from son) is there, then the children of the
granddaughter will be deprived.
In the presence of the dead person's children or his son's children, the akhyafi brothers and
sisters will get nothing.
'If the dead person's father or paternal grandfather is alive, the akhyafi brothers and sisters
will stand deprived.
In the absence of the dead person's sons, daughters, their children and their grandchildren
but the presence of only one real sister, she will take the place of his daughter. If she is
alone she will get half of the legacy but if they are two or more, they will get two thirds of
the entire legacy which they will disburse amongst themselves. The some ruling applies to
a stepsister in the foregoing case if there is no real sister.
If the dead person's daughter or granddaughter (from his son) is there up to the lowest
descendant even if they are many or just one then the real sister and in her absence the
stepsister will became an asabah.
If there is a real brother, then a real sister will become as asabah with him.
If there is no real brother but there is a stop brother then a real sister will become a dhawil furud.
There is one real brother and some step brothers and sisters. In this case the top brothers .
and sisters will get nothing.
In the presence of one real sister, the step sister - one of more than one - will get one sixth share:
If there are more than one real sisters then the step sister will remain deprived. But, if there
is a step brother too, then she will not be deprived and even if there be one or more real
sisters, the step sister will become an asabah with the step brother. This means that after
the dhawil fara'id have been given their shares, the remaining legacy will be theirs because
of their being asabah.
If the dead person's real sister or daughter or granddaughter (from son) down the line to
the lowest become asabah then the step siblings will get nothing.
EXPLANATORY NOTE : In the presence of the dead person's son and grandson (from son)
to the lowest line, all the real and step siblings will be deprived. Also, in the presence of the
'dead person's father or paternal grandfather, the siblings, real or step will be deprived.
.
ABOUT ASABAT
Whatever remains after disbursing the shares of the legacy of the dead person to the
dhawil furud will be distributed among the asabat. In another words, dhawil furud are the
heirs of the first degree and asabat are heirs of the second degree.
1. There are four kinds of asabat Son, his son and his son down the line
2. Father, his brother (paternal uncle), paternal grandfather and paternal great grandfather.
3. Real and step brothers and their sons.down the line.
4. Uncle (paternal), father's paternal uncle, paternal grandfather's paternal uncle and son of
these (paternal) uncles and their sons and theirs down the line.
.
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THE SEQUENCE OF THESE FOUR
The sequence of these four kinds is: The foremost are sons followed by grandsons to the
lowest degree.
Next are father and grandfather up to the highest level (of ancestors).
. Then follow the brother, sister and nephew to the lowest level.
On their heels are the paternal uncle and his children to the lowest level.
Thus, if an asabh is there from the first kind, then all the remaining three kinds will be
deprived. If there is none from the first kind but one from the second kind then the next
two kinds will be deprived. If there is none from the first and the second but there is one
from the third then there will be none from the fourth.
The other thing is that in each of these four kinds, the close asabah will get preference over
- the distant one when the closer one is there is distance will be deprived. For example if
both son and grandson are, there both being from the first kind, the son will be preferred
over the grandson, because he is the closer. He will get the legacy of the dead person while
the distant relative (the grandson) will be deprived.
In the same way, the real asabah will be preferred over the step relation,
The grandsons of the dead person (or his paternal uncles) will be preferred to his paternal
uncles, and to his father's paternal uncles. The grandsons of the paternal uncles of the
father of the dead person are preferred to paternal uncles of the dead person.
ABOUT DHAWIL ARHAM
The first degree of the heirs of the dead person is dhawil furud. The second is asabat when
both these degrees are not found in the heirs then the legacy will go to the dhawil arham.
This is the third degree of heirs of the dead. Like asabah, Dhawil arham also has four kinds.
They are:
1. Daughterof the dead person, her daughter deep down the line.
2. False grandfather (called (.) jadd fasid meaning from the mother's side, that is the
maternal grandfather), false grandmother (jadeh fasidah) both paternal and maternal, or
father of maternal grandmother, mother of false maternal grandmother, mother of the
father of grandmother (paternal/maternal). All of them are dhawil arham while the real
grand father (paternal) and real (paternal/maternal) grandmother are dhawil furud and
these go up the line like the great grandfather and great grandmother, etc. there being no
woman between them and no jadd fasid between them.
3. Children of real sisters, step sister, akhyafi sister and akhyafi brother. Daughter of real
brother and step brothers.
4. Aunts - real, step or akhyafi, uncles (paternal and maternal) all akhyafi.
These are the four kinds of dhawil arham. The same sequence is observed as for asabah.
If those heirs of the first kind are there or their children (no matter how low in line of
descent) then the remaining three are deprived. So with the second, if their heirs of this
kind are there (in the absence of the first kind) then the next two are deprived. Again
(when the first and second are lacking and) if the heirs of the third kind are there then
those of the fourth are deprived. If all the first three are lacking then the heirs of the fourth
will be considered.
Like the asabah, in every kind the closer dhu rahm is preferred to the distant.
THAT WHICH PREVENTS INHERITANCE BEING RECEIVED
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their singular relationship with him or her. Thus, if this relationship is disturbed in some
way and they separate and detest one other then that heir loses his right to inherit from the
dead relative. There are four things that deprive one of the right to inheritance. They are:
(1)
Slavery. Neither can a free man be an heir of a slave nor can a slave be an heir
of a free man. The reason is a slave is not recognized by Shari'ah (divine law)
to be an owner of anything and he owns nothing.
(2)
Murder, if an adult heir kills his legator then he is disqualified from receiving
an inheritance. However, this is killing that makes qisas (retaliation) or
kaffarah (expiation) wajib (obligatory) on the killer. There are five kinds of
killing. (They will be discussed at the relevant place, insha Allah) Four of them
are such as make wajib (obligatory) qisas or kaffarah or diyat (retaliation or
expiation or blood wit). According to the Hanafis, the heir is disqualified in all
these four kinds if he kills the legator (willfully and) unjustly. But, he is not
disqualified if he does not kill him unjustly like in self-defence or at the
command of the ruler or judge as part of a punishment. In these letter cases,
the heir is not deprived of inheritance.
One of the five kinds of killing (.Juju) (killing by tasbib or sabab). In this kind neither
retaliation nor expiation becomes wajib (obligatory). Rather, it is essential to pay the diyat or
bloodwit. The killer or murderer is not deprived of inheritance in this kind of killing. An
example of it is that someone places a stone in the land of another person without his
permission or digs a well not asking for permission and a visitor stumbles on the stone or
falls in the well and dies. On account of this, diyat is wajib (obligatory) on this person who
had placed the stone or dug the well.
Also, the Hanafis maintain that if a minor or an insane person kills his legator, then he is
not disqualified from getting his inheritance. The reason is that Shari'ah (divine law) does
not prescribe punishment on most of the doings of a minor and an insane.
(3)
Different religion. The difference of religion practiced also deprives one from
inheritance. Thus if the heir is a Muslim but the legator is a non-Muslim or
vice-versa, the Muslim will not inherit from a non Muslim neither will a
Muslim's legacy go to a non Muslim.
(4)
Different residences. This implies residences in different countries and native
lands. If the heir and the legator reside in different native lands, it deprives the
heir of inheritance. Suppose, one of them resides in Dar ul Islam (a Islamic
country) and another in dar ul harb (enemy territory). This disqualifies them
from inheriting from one another. But this command applies to the non
Muslim. If a Msulim heir and a Muslim legator reside in different countries,
they have the right to inherit from another.1
TERMINOLOGY
DHAWIL FUR'UD (ذوى الفروض)(1)
They are the shaers. The heirs whose shares are determined by the Qur'an and
sunnah (Prophet's , le & o practice), or, by general consensus. They number
twelve, four men and eight woman.
There are:
1 We reproduce here under the terminology from Tirmidhi VI pp 844f
1

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Men: (1) Father (2) Grand Father (3) Uterine brothers (half brothers by the
same mother) and (4) Husband
Woman: (1) Daughter (Grand Daughter (Son's daughter) (3) Full (real)
Sister (4) Half Sisters by same Father (5) Uterine Sister (half sisters by same
mother) (6) Wife (7) Mother and (8) True Grandfather.
(ASA'BAT) (عصبات)(2)
They are the residuaries. They are relatives besides Dhawil Furud who are males and
are also connected to the deceased through males. Their share is not determined.
Anything remaining after giving to Dhawil Furud will go to them. They are
mentional in the table by sequence. A nearer asbah (residuary) excludes the remote
one, though he may get a share by virtue of his inclusion in Dhawil Furud.
(DHAWIL AHRAM) (ذوى الارحام)(3)
They are relatives apart from dhawil furud and asabat.
(4)(+) (AYNI) BROTHER OR SISTERS
They are real brothers and sisters. .
(5)(Je) (ALAQI) BROTHERS OR SISTERS
They are have a common father but separate mothers.
(6)(1) (AKHYAFI) BROTHERS OR SISTERS
They are uterine siblings, having the same mother but not the same father.
(7)REAL (OR TRUE) GRANDFATHER
There is no female interruption in the relationship with the deceased. Thus, for
example, he is father's or father's father's father.
(8)UNREAL GRANDFATHER
A female relative connect him to the deceased, for example, mother's father
(material grandfather), or father's mother's father.
(9)REAL (OR TRUE) GRANDMOTHER
Her relationship with the deceased does not involve the unreal grandfather, like
father's mother (Paternal grandmother), mother's mother, paternal grandmother's
mother and paternal grandfather's mother. There can be only one real
grandmother from the mother's side while more are possible from the father's side.
(10)UNREAL GRANDMOTHER
She is related to the deceased through the unneal grandfather, like mother's father's
mother, mother's father's mother's mother's mother's mother's father's mother.
(11)(15}) (TARKAH)
It is a legacy, a bequest, an inheritance. It includes all livestock cash and liquid, and
property that the deceased leaves behind on death.
(12)(Jje) (AUL)
The total of the share of dhawil Furud exceed the payable, for example:
1/2
for
husband
3
1/2
for
Sister
3
1/2
for
mother
1
(Six) The total becomes 7 which is in excess of the payable
(13)(››) (RADD):

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The total of the share of dhawil furud falls short of the payable, for example
1/8
Wife
3
1/2
daughter
12
1/6
mother
4
(Twenty-four) this 19 while the payable is twenty four and it falls short of twenty
four.
(14)(«.la) (MUNASAKHAH) ABOLISHMENT
Before legacy is distributed, an heir may die. His share will then go to his heirs.
(15)(3%,1) (AWLAD)
They are sons, daughter, children of sons and children of the sons of sons.
THE CHART EXPLAINED
The first column has the serial number and relationship with the deceased. The second
mentions the serial number of relatives deprived of relatives deprived of inheritance
because of the relative mentioned in column one who received the share mentioned in
column three. Thus for example, the son deprives serial # 6 to 8 etc.
CHART OF SHARE OF INHERITANCE OF VARIOUS RELATIVES
Relationship with deceased
and number of them with
Serial number of
those deprived
because of
column one
Share of inheritance
S No.
1. Husband, one
1/2 if childless, else 1/4
1/2 if childless, else 1/8
2. Wife, one or more
3. Son, one or more
6 to 8, 14 to 13
Asbah
4. Daughter two or more
7, 8, 22, 23
2/3 provided there is not (S.No.3)
5. Daughter, one
22,23
6. Son's son, one or more
14 to 30
2/3 provided there is not (S.No.3)
Asbah
7. Son's daughter two or
more
22, 23
2/3 provided there is no daughter,
else 1/6
8. Son's daughter, one
22, 23
2/3 provided there is no daughter,
else 1/6
9. Father
11, 12, 14 to 30
Asbah +1/6 provided there is not
S.No.3 to 6, else 1/6
10. Mother
12, 13
If she has children, or a brother a
brother and sister 1/6.
If she mother, father 1/3, if nothing
of this then 1/3 of all legacy.
Asbah+ 1/6 provided S.No. 3 or 6 is
not there, else only 1/6.
11. Paternal grandfather
14 to 30
12. Paternal grandmother
one or more
13. Maternal grandmother
one.
----
1/6 equal in all of them.
14. Real brother, 2 or more
18 to 21,
Asbah

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15. Real brother, one.
16. Real sister, 2 or more
24 to 30
18 to 21, 24, 30
Asbah
Asbah with S.No.4 & 5 or 7 & 8, if 5
& 8 are not then 2/3
17. Real sister, one
20, 21
Asbah with S.No.4, 5 or 7, 8 if 5 & 8
not there 1/2
18. Half brother on father's
side two or more
19. Half brother on father's
side, one.
24 to 30
20. Half sister from father
side, two or more
24 to 30
Asbah
21. Half sister from father's
side, one.
22. Uterine brothers
&
sisters, 2 or more
23. Uterine brother sister
24. Son of real brother one
1/6.
or more
Asbah.
25. Son of half brother from
father's side
25 - 30
Asbah.
26. Real paternal uncle, one
or more
26 - 30
Asbah.
27. Father's half brother
from father's side, one or
more
27 - 30
Asbah.
28. Son of real paternal
uncle, one more
28 - 30
Asbah.
29. Son of father's half
brother from father's one or
more
29 - 30
Asbah.
30. Dhawil Arham
30
Detail follow this chart.
Dhawil Arham. If there is none of the dhawil furud or asbat, except one of the spouses,
then, after giving him or her the share, the remainder will be given to dhawil arham. They
are of four kind:
1. DESCENDANTS: Children of daughters and of son's daughter, and so lower down.
2. ASCENDANTS:Line false grandfather and false grandmother, and so going up.
3. FATHER'S DESCENDANTS: Like daughters of real and consanguine brother children
of uterine brothers and of all sisters.
4. DESCENDANTS OF GRANDFATHERS: Like daughters of real uncles and consanguine
uncles, uterine uncles aunt, maternal uncles, mother's sister and their children.
Those of them that are alone will be entitled to all wealth. If there are a few then the nearer
Asbah.
Asbah with S.No.4, 5 or 7, 8 if 5, 8, 17
not there then 2/3, with 17 1/6 if
there
Asbah with S.No.45 or 7,8 if 5,8,17
not there then 1/6
1/3equally among all brother &
sister.

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194
ones are preferred to the remote. 'The full or real is preferred over the step relative who is
preferred to the uterine, whether male or female. If they are equal in that then the Qura'n's
edict is followed:
لِلذَّكْرِ مِثْلُ حَظِ الْأُنُشِئْنِ
For the male is the share equivalent of that of two females. (4:11)
If relations are different then the father's relatives get two-thirds and mother's relatives get
one-third. (FA)
4
SECTION I
الفضلْ الْأَوَلْ
HEIRS HAVE RIGHT OF INHERITANCE TO LEGACY OF DEAD
(٣٠٤١) عَنْ أَبِي هُرَيْرَةَ عَنِ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ قَالَ آَنَّا أَوْنِى بِالْمُؤْمِنِيْنَّ مِنْ آَنْفُسِهِمْ فَمَنُ مَاتَ وَعَلَّيْهِ
دَيْنْ وَلَمْ يَتُكُ وَفَاءٍ فَعَلَّىَّ قَضَاؤُهُ وَمَنْ تَرَكَ مَالَّا فَلِوَرَثَتِهِ وَفِيْ رِوَايَةٍ مَنْ تَرَكَ دَيْنًا أَوْضِيَاعًا فَلْيَاتِنِى فَأَنَا
مَوْلَّاهُ وَفِيْ رِوَايَةٍ مَنْ تَرَكَ مَالَّا قَلِوَرَفَتِهِ وَمَنْ تَرَكِ كَلَّا فَإِلَيْنَا - (متفق عليه)
3041. Sayyiduna Abu Hurayrah رضى الله عنه narrated hat the Prophet صلى الله عليه وسلم said, "I
am nearer to the believers than they are to themselves. So, he who dies leaving an
unpaid debt but not leaving the means to repay it, his debt is payable by me. And,
he who leaves behind property (enough to pay his debts and execute his will
leaving a balance thereafter), it belongs to his heirs."
According to a version: "He who leaves a debt or children without maintenance, let
it come to me. I am his guardian."
According to a version: "He who leaves property behalf him, it belongs to him
heirs. And he who leaves children without maintenance they are on us."1
COMMENTARY: In the early days, the Prophet صلى الله عليه وسلم did not offer the funeral
salah (prayer) of anyone who died leaving an unpaid debt but asked his sahabah
(Prophet's Companions) رضى الله عنهمم to offer it themselves. Later, as Muslims prospered,
he paid all such debts. (see hadith # 2913) This reflects the Prophet's صلى الله عليه وسلم love
and kindness for all Muslims.
DHAWIL FURUD FIRST PREFERENCE
(٣٠٤٢) وَعَنِ ابْنِ عَبَّاسِ قَالَ قَالَ رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ الْحِقُوا الْفَرَائِضَ بِأَهْلِهَا فَمَا بَقِىَ فَهُوَ
لِأَوْلَى رَجُلٍ ذَكَّرٍ - (متفق عليه)
3042. Sayyiduna Ibn Abbas رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said,
"Give the shares of inheritance (as prescribed in the Quran and hadith) to those
who are entitled to (inheritance) shares. What remains (after that) is for the (asabah)
nearest male heir."2
COMMENTARY: In other words, the shares of inheritance should be given first to
1 Bukhari # 2399, Muslim # 15-1619, Abu Dawud # 2955, Nasa'i # 1963, Ibn Majah # 2415, Musnad
Ahmad 2-456.
2 Bukhari # 6732, Muslim # 2-1615, Darimi # 2987, Tirmidhi # 2098, Abu Dawud # 2898.
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dhawil furud. The Quran has determined their shares. When their specified shares are
given, the asabah should be given their shares. Preference in this is for the nearest
relative of the dead person.
The closing words 'male heir' mean that the eunuch is excluded.
practice) explains that some heirs are obstacles to , à Sharh us sunnah (Prophet's
:others. This can be in two waysحجب نقصان حجب حرمان
Hajab nuqsan and hajab Harman.
The definition of both together is that some heirs are a cause of getting shares of others
reduced. For example if the dead person had no children, his mother would have received
one-third share of the legacy, but if he has children then she gets only one-sixth share. This
is hajab nuqsan (obstacle that decreases, or part exclusion from inheritance).
Some heirs eliminate other heirs (who are relatives). For example, if the person has a son
then the dead person's brother gets nothing. This is hajab Harman (obstacle that prevents,
or total absolute exclusion).
DIFFERENCE OF RELIGION
(٣٠٤٣) وَعَنْ أُسَامَةً بُنِ زَيْدٍ قَالَ قَالَ تَسْوُلُ اللَّهِ عَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَا يَرِثُ الْمُسْلِمُ الْكَافِرَ وَلَّا الْكَافِرُ
الْمُسْلِمَ - (متفق عليه)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Usamah ibn Zayd .3043
said, "A Muslim does not inherit from an infidel nor does an infidel from a Muslim."1
COMMENTARY: Allamah Nawawi al w, said that the scholars agree that a disbeliever
cannot inherit from a Muslim relative legator. As for a Muslim heir inheriting from an
infidel relative, most scholars assert that he will not inherit from the disbeliever but some
of the sahabah (Prophet's Companions) (a +, and tabi'un alus, said that a Muslim can
inherit from a disbelieving relative. Imam Maalik alter, said the same thing.
Again, it is agreed that an apostate cannot inherit from a Muslim but the question whether
a Muslim may inherit from an apostate is disputed. Imam Maalik ame,, Imam Shafi's ana,
Sayyiduna Rabi'ah altas, and Ibn abu Laylah alus; and others say that a Muslim cannot
inherit from an apostate. Imam Abu Hanifah alus, says that whatever the apostate earned
after he apostated will go to the state Treasury and what he had earned when he was a
Muslim will go to the Muslim heirs.
THE MAWLA INHERITS FROM A SLAVE
(٣٠٤٤) وَعَنْ آَنَسٍ عَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ مَوْلَى الْقَوْمِ مِنْ أَنْفُسِهِمُ - (رواه البخارى)
3044. Sayyiduna Anas رضى الله عنه narrated that the Prophet صلى اللهعليه وسلم said, "The mawla
of a people belongs to them."2
COMMENTARY: The word mawla means the one who sets a slave free.' The hadith means
the this person who sets the slave free inherits the freedman's property when he dies. But,
1 Bukhari # 6764, Muslim # 1-1614, Tirmidhi # 2114, Ibn Majah # 2729, Muwatta # 10 (Faraid)
Musnad Ahmad 5-209.
2 Bukhari # 6761.

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this freedman cannot be heir of the ex-master who gave him freedom.
However, some authorities say that mawla means 'the slave who was set free.' The
freedman. Hence, the hadith means that the same command or ruling applies to the
freedman as applies to the people or tribe who have set him free. For instance, if the Banu
Hashim (who are Sayyid) set him free then the same commands will apply to him as apply
to the Sayyid. Thus, the sayyid are precluded from receiving zakah (Annual due charity)
and their freedman is also precluded from it, that being haram for them.
NEPHEW RECEIVES INHERITANCE FROM MATERNAL UNCLE
(٣٠٤٥) وَعَنُّ اَنَسٍ قَالَ قَالَ رَسُولُ اللَّهِ صلَّى اللهُ عَلَيْهِ وَسَلَّوَ ابْنُ أُخْتِ الْقَوْمِ مِنْهُمُ - (متفق عليه)
3045. Sayyiduna Anas رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said, "The
son of a sister of a people belongs to them."
COMMENTARY: A nephew inherits from his maternal uncle and belongs to the category of
dhawil arham. Imam Abu Hanifah al, and Imam Ahmad As an+, hold that dhawil arham
are h eirs of the dead person. This is when the dhawil'furud and asabat are not present.
This has been discussed in the introduction to this chapter.
وَذُكِرَ حَدَيْثُ عَائِشَةَ إِنَّمَا الْوَلَاءِ فِى بَابٍ قَبْلَ بَابِ السَّلَمِ وَسَنَذْكُرُ حَدِيْثَ الْبَرَاءِ الْخَالَةُ بِمَنْزِلَةِ الْأُمِّ فِيْ
بَابٍ بُلُوُغُ الصَّخِيُرِ وَحَضَانَتُهُ إِ شَاءَ اللهُ تَعَالى
The hadith of Sayyiduna Ayshalı was a +, about the right of inheritance belonging to ... is
narrated earlier (hadith # 2877)
The hadith of Sayyiduna Bara about the maternal aunt being like the mother follow later (# 3377).
SECTION II
الفضل الثانى
MUSLIM & NON MUSLIM INHERITING ONE ANOTHER
(٣٠٤٧٠٣٠٤٦) عَنْ عَبْدِ اللَّهِ بْنِ عَمْرٍو قَالَ قَالَ تَسْوُلُ اللّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ لَا يَتَوَارَتُ آَهْلُ الْمِلَّتَيْنِ
ثَتَّى رَوَاهُ أَبُوْدَاوِدَ وَابْنُ مَاجَةً وَرَوَاهُ النِّزْمِذِئُّ عَنْ جَاپپٍ۔
صلى الله عليه narrated that Allah's Mcssenger رضى الله عنه Sayyiduna Abdullah ibn Amr .3046
, said, "Adherents of two different religions do not inherit from one another."1
3047. Sayyiduna Jabir رضى الله عنه narrated that same hadith.2
MURDERER DOES NOT INHERIT
(٣٠٤٨) وَعَنْ آَبِي هُرَيْرَةَ قَالَ قَالَ رَسُوْلُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ اَلْقَاتِلُ لَا يَرِثُ - (رواه الترمذى وابن ماجة)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Say yiduna Abu Hurayrah .3048
said, "The murderer does not inherit."3
COMMENTARY: This means that one who kills his legator unjustl ;; cannot inherit from
him. This has been discussed earlier in the chapter.
1 Abu Dawud # 291, Ibn Majah # 2371, Musnad Ahmad 2-195.
2 Tirmidhi # 2115.
3 Tirmidhi # 2116, Ibn Majah # 2735.
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GRANDMOTHER GETS ONE-SIXTH
(٣٠٤٩) وَعَنْ بُرَيْدَةَ آَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ جَعَلَ لِلجَدَّةِ السُّدُسَ إِذَا لَمْ تَكُنُّ دُوْنَهَا أُم - (رواه أبوداود)
3049. Sayyiduna Buraydah رضى الله عنه narrated that the Prophet صلى اللهعليه وسلم specified one
sixth share (of inheritance) for a grandmother as long as no mother excludes her (by
inheriting before her).1
COMMENTARY: If the dead person's mother is alive then the grandmother of this person
will get no inheritance. If she is not alive then the grandmother, whether paternal or
maternal, will get one-sixth share.
NEW BORN SURVIVING CHILD IN AS HEIR
(٣٠٥٠) وَعَنْ جَابِرٍ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ إِذَا اسْتَهَلَّ القَّبِىُّ صُلِّي عَلَيْهِ وَؤُرِّثَ.
(رواه ابن ماجة والدارمى)
3050. Sayyiduna Jabir رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said, "If an
infant emits a sound (at birth before dying), funeral salah (prayer) is offered over
him and he qualifies as an heir."2
COMMENTARY: Emits a sound means 'shows signs of life by breathing, sneezing or
moving. If the child dies after that,, then a funeral salah (prayer) will be offered over it and it
is entitled to be called an heir and get a share of inheritance.
In the light of this hadith, if a person dies and his child is yet in its mother's womb, then its
share if inheritance will be kept aside. When the child is born alive, its share of inheritance
will be entrusted to its guardians and it will be deemed to be on heir. But, if it is still-born
then it will not be an heir and the inheritance will be distributed to other heirs.
PART OF THE PEOPLE
(٣٠٥١) وَبَنْ كَثِيْرٍ بُنِ عَبْدِ اللَّهِ عَنْ آَيِّهِ عَنْ جَدِّمٍ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ مَوْلَى الْقَوْمِ مِنْهُمْ
وَحَلِيُفُ الْقَوْمِ مِنْهُمْ وَابْنُ أُخْتِ الْقَوْمِ مِنْهُمُ - (رواه الدارمى)
3051. Sayyiduna Kathir ibn Abdullah a , reported from his father (Sayyiduna
Abdullah) àluz, from his (Kathi'r's) grandfather (Sayyiduna Amr ibn Awf Muzani)
said, "The mawla of a people belongs to صلى الله عليه وسلم that Allah's Messenger رضى الله عنه
them. The ally of a people is one of from them. And, the son of a sister of a people
belongs to them."3
COMMENTARY: The portion about the mawla has been explained in the commentary on
the hadith # 3051. As for the ally, the Arabs used to form a pact, two men with one
another. It was an alliance to co-operate in difficulties, sorrow, death, ease, etc.
throughout life their blood was common and their agreements were binding on one
another. 'Their enemies were common. If one of them was fined, the other was bound to
share the burden with him. They also shared inheritance of one another but when the
1 Abu Dawud # 2895, Daraqutni # 74 (Fara'id)
2 Ibn Majah # 2750, Darimi # 3126.
3 Darami # 2527.

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Quran defined the share of inheritances, this custom was done away with. Also, this part
of the hadith was annulled.
As for sister's son being one of the people, see hadith # 3045, and the commentary on it.
MATERNAL UNCLE IS DHURAHM HEIR OF HIS NEPHEW
(٣٠٥٢) وَعَنِ الْمِقْدَامِ قَالَ قَالَ تَسْؤُلُ اللَّهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ أَنَا أَوْلِى بِكُلِّ مُؤْمِنٍ مِنْ نَفْسِهٍ فَمَنُ تَرَكَ
دَيْنَّا أَوْ ضَيْعَةً فَإِلَيْنَا وَمَنْ تَرَكَ مَالَّا فَلِوَرَثَتِهِ وَأَنَّا مَوْلِى مَنْ لَا مَوْلِى لَهُ أَرِثُ مَا لَهُ وَأَفُتُّ عَانَهُ وَاخَالُ وَارِثُ
مَنْ لَا وَارِثَ لَهِ يَرِثُ مَالَهُ وَيَقُتُّ عَانَهُ وَفِيْ رِوَايَةٍ وَأَنَا وَارِثُ مَنْ لَا وَارِثَ لَهُ أَعْقِلُ عَنْهُ وَآَرِثُهُ وَالْخَالُ
وَارِثُ مَنْ لَا وَارِثَ لَهُ يَعْقِلُ عَنْهُ وَيَرِثُه-(رواه ابوداؤد)
3052. Sayyiduna Miqdam رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said, "I
am nearer to every believer (wishing him well) than he himself is. Hence, if anyone
dies leaving a debt or an unsupported family, then I am responsible (to pay his debt
and support his family). If anyone leaves property, that belongs to his heirs. I am
guardian of him who has no guardian as his heir who relieves him of his liabilities
(like paying off penalties or blood money that he is liable to pay).
A maternal uncle is heir of him who has none. He inherits his property and
liberates him from his liabilities.
According to a version: "I am heir of him who has none. I pay for him bloodwit
(due on him) and I inherit from him. A maternal uncle is heir of him who has none.
He pays bloodwit for him and inherits from him."1
WOMEN INHERITS FROM THREE MEN
(٣٠٥٣) وَعَنْ وَاثِلَةً بْنِ الْأَسْقَعِ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ تَحُوْزُ الْمَرَأُْ ثَلَاثَ مَوَارِيْنَ عَتِيْقَهَا
وَلَقِيْطَهَا وَوَلَدَهَا الَّذِى لَا عَنَتُ عَنْه- (رواه الترمذى وابوداود)
صلى الله narrated that Allah's Messenger رضى الله عنه Sayyiduna Wathilah ibn Al-Asqa .3053
jule said, "A woman can have legacy from three sources. (1) The slave whom she
sets free, (2) the child she foundles (and rears up), (3) her own child about whom
she has invoked a curse on herself (in lian) assuring her husband that he was a
legitimate child."2
COMMENTARY: the slave whom the woman had set free may have died leaving no
asabah relative. Thus, in such cases a man becomes on heir of his freedman and a woman
also becomes his heir.
As for the second source, the ulama (Scholars) say that this command that a woman is heir of
the child she foundles is abrogated. However, Ishaq ibn Rahu ius, abides by this hadith.
Qadi als, said that the hadith means that whatever this child leaves will go to the state
Treasury. The woman who had picket up the child has more right that this money be spent
on her from the state Treasury.
As for the third source, li'an (invoking a curse on oneself) is that when a man accuses his
wife that the child she has begotten does not belong to her, they curse one another. This
1 Abu Dawud # 2900, Ibn Majah # 2738.
2 Tirmidhi # 2122, Abu Dawud # 2908, Ibn Majah # 2742, Musnad Ahmad 3-490.

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will be discussed, In-sha-Allah, in the chapter on al-li'an (stalli). The child for whom lian
was observed is not attributed its father and the child and father cannot be one another's
heir because patronage is not established. However, since the child's paternage is duly
establish with its mother, the two of them will be heirs of one another.
The same command applies to walad us zina (child born through adultery or out of wedlock).
CHILD BORN OUT OF WEDLOCK
(٣٠٥٤) وَعَنْ عَمْرِو بْنِ شُعَيْبٍ عَنْ آَيِهِ عَنْ جَدٍِّ أَثَّ النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ قَالَ أَيُّمَا رَجُلٍ عَاهَرَ بِحُزَّةٍ
أَوْ آَمَةٍ فَالْوَلَدُ وَلَدُزِنَّا لَا يَرِثُ وَلَّا يُؤْرِثُ- (رواه الترمذى)
3054. Sayyiduna Amr ibn Shu'ayb al us, narrated on the authority of his father
(Shu'ayb) رحمه اللهthat his (father's) grandfather said that the Prophet صلى الله عليه وسلم said,
"If a man commits adultery with a free woman or a female slave (and a child is
conceived), then their child is walad uz zina (illegitimate child) who will neither be
anyone's heir nor have an heir (meaning, will neither inherit nor will any one
inherit from him)"1
COMMENTARY: The reason is that relationship is not established with the man who
commits fornication, or with the man's relatives. However, the child's relationship is clear
with its mother, so they will inherit from one another.
LEGACY OF A FREEDMAN
(٣٠٥٥) وَعَنْ عَائِشَةَ آَّ مَوْلَّى لِرَسُولِ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَاتَ وَتَرَكَ شَيْئًا وَلَمْ يَدَهُ حَمِيْمًّا وَلَّا
وَلَدًّا فِقَالَ رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أَعْمُوْا مِيْرَاثَهُ رَجُلًا مِنْ آَهْلِ قَرُيَتِه-(رواه أبوداود والترمذى)
صلى الله narrated that a freedman of Allah's Messenger رضى الله عنه Sayyidah Ayshsh .3055
ile died, leaving some property. He left behind no relative and no child (to
inherit him). So, Allah's Messenger صلى الله عليه وسلم said, "Hand over what he has left to
a man of his village."2
COMMENTARY: When a person dies, leaving on heir, the 'inheritance goes the state
صلى الله عليه وسلم treasury whose funds are payable to the poor and needy. So the prophet
diverted the freedman's legacy to the needy and deserving of the village.
PROPHETS ARE HEIRS TO NONE
It has been stated previously that if a freedman has no asabah relative then the right of
wala belongs to one who has set him free. In other words, after he dies, he who had
emancipated him owns his legacy (if he has no heir). According to this procedure when the
صلى الله عليه freedman died, his legacy ought to have gone to the Prophet صلى الله عليه وسلم Prophet's
.never inherit from anyone nor are inherited by other صلى الله عليه وسلم However, Prophets . وسلم
So, the Prophet صلى الله عليه وسلم did not take the inheritance of the freedman. He gave it where
the state Treasury's property is spent.
The reason for this is that the Prophet (> Jule not only preach abstinence but also practice
1 Tirmidhi # 2120, Ibn Majah # 2745.
2 Tirmidhi # 2112, Ibn Majah # 2733, Abu Dawud # 2902.