Mu’in al-Fara’idh #4: Impediment

murder

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 29 Rabi II 1437 | 10 February 2016

Those eligible to inherit, sometimes due to a certain causes can be impeded (mahrum) from inheriting. These causes are known as ‘Mawani’ al-Irth’. There are four such causes: Riqq (slavery), Qatl (homicide), Tabayun Din (religion), and Tabayun Darayn (nationality). The details are mentioned below.

(1) Riqq refers to full or partial slavery such as a slave, mudabbarmukatab or umm walad. The reason being, these people do not fully own themselves or anything in the possession. Hence, if any relative of theirs dies, they will not be eligible to get anything from the tarkah. Furthermore, they cannot impede others from inheriting either.

(2) Qatl [in this case refers to homicide] which necessitates qisas or kaffarah. The homicide which impedes the killer from inheriting are three types: Qatl ‘Amad,, Qatl Shibh ‘Amad (voluntary manslaughter) and Qatl Khata’ (involuntary manslaughter).

(a) Qatl ‘Amad (murder) is the purposeful killing of an innocent human life with a lethal weapon such as a sword, sharp stone, canon, gun and fire. This results in sin and qisas but not diyyat or kaffarah.

(b) Qatl Shibh Amad (voluntary manslaughter) is the purposeful killing of an innocent human life with a non-lethal item such as ordinary stone or wood piece. This results in diyyat, sin and kaffarah but not qisas.

(c) Qatl Khata’ (involuntary manslaughter) is the accidental killing of an innocent human life such as a hunter who shot at a target but accidentally hit a person due to which he died. This results in diyyat and kaffarah but not qisas and sin.

As there is qisas in ‘amad and kaffarah in shibh ‘amad and khata’, all these forms killing will impede inheritance.

(3) Tabayun Din refers to when from the deceased and the heir, one is a Muslim and the other is a non-Muslim. This difference (tabayun) in their religion impedes the heir from inheriting. Yes! amongst non-Muslims (disbelievers) regardless of how much difference [between them], they will be considered as one religion under the principal of ‘kufr millatun wahidah‘ (kufr is all one religion). Hence, non-Muslims of different religions will not be impeded [from each other].

(4) Tabayun Darayn refers to when non-Muslims live in two different nations. This is a cause of them being impeded. This is irrespective if the difference is real such as one is harbi and the other is zimmi or if the difference is assumed such as one is zimmi and the other is musta’min or both are from two separate dar al-harb. Muslims being of different nations does not impede them [from inheriting].

Mu’in al-Fara’idh #3: Succession

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 28 Rabi II 1437 | 9 February 2016

The estate which remains after shroud, burial, payment of debts and fulfilment of bequest will be distributed amongst the heirs in accordance to the Quran, sunnah of the Prophet of Allah (peace be upon him) and ijma.

There are three types of heirs (waratha): Zawil Furudh, ‘Asabat, and Zawil Arham. Their order of priority will be mentioned below.

(4)  Zawil Furudh: They are those who have been fixed a specific share in the Quran, Sunnah of the Prophet (peace be upon him) and through ijma. From the inheritors, the zawil furudh are the first to be given their fixed shares. After their share, if any amount remains, it is given to the eligible ‘asabat.

(5) ‘Asabat: They are those who if alone take the entire tarkah and if with a zawi al-furudh take all that remains tarkah after their share. These ‘asabat are of two types:

(a) ‘Asabat Nisabi: They are those who are related to the deceased [by blood] such as father, father’s father, son, son’s son. The details will come in the ‘asabat section.

(b) ‘Asabat Sababi: They are those who freed the deceased or the ‘asabat of those who freed [the deceased]. As in the deceased was a slave who was freed by his owner. If this free person dies and there is no heir from the above category to inherit, the master who freed or if unavailable the master’s ‘asabah nisabi will be inherit. Note! If the master is not alive, only the male relatives may inherit – not the females. The reason being, females can only inherit [as ‘asabah] from their freed slave or the freed-slave of their freed slave – they cannot inherit [as ‘asabah] from the freed-slave of their relatives.

(6) Radd bi Zawil Furudh: Give the fixed share to the zawil furudh and thereafter if any amount remains give it to the ‘asaba nisabi and if they are unavailable give it to the ‘asaba sababi. However, if the deceased has neither of the ‘asabat, redistribute the remaining amount amongst the zawi al-furudh according to their proportions. This is called radd which we will discuss in detail in the radd section. Here, just remember that radd is only done to zawi al-furudh nisabi and not zawi al-furudh sababi (spouse).

(7) Zawil Arham: All relatives other than zawil furudh and ‘asabah are classed zawil arham such as the daughter’s son and daughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, mother’s brother, and mother’s father etcetera. If there is no one from the above mentioned categories, the tarkah (estate) of the deceased will be given to the zawil arham. The detail will come in the zawil arham section. If from the zawil furudh there is only the spouse and there are no ‘asabah, give the remaining amount to the zawil arham.

(8) Mawla Muwalat: They are those who the deceased formed a pact of fealty. As in the deceased had no known family and so made a pact,

You are my mawla and after I die, you will receive my money. However, if a crime occurs on my part due to which I must pay diyyat (blood money), you shall fulfil it.

If after forming the pact, this person with no known family dies and leaves no eligible heirs from the above categories, the estate will be given to this mawla muwalat with whom the pact was made whilst alive. Hence, if the spouse is alive but after their share there is no heir from the above groups, the remaining amount will be given to the mawla muwalat with whom the pact was made.

(9) Muqirr lahu bi al-Nasab ala al-Ghayr: They are those regarding whom the deceased admitted to being related. However, the relationship could not be established by admittance alone as it entails including them in the lineage of another. For example, the deceased admitted a stranger to be his brother or uncle. As this entail this stranger being included in his father or grandfather’s lineage, the relationship will be established so long as the father or grandfather do not confirm. The mere admittance will not be sufficient be establish the person as his real brother or uncle. However, If the one remains adamant on their claim till death and after dying there is no one from the above categories or they have a spouse and there is no one from the above categories to receive the remaining amount, the muqir lahu bi al-nasabi ala ghayr will be given the remain estate.

(10) Musa lahu bi Jami’l Mal: They are those to whom the deceased bequeathed their entire estate. However, in accordance to the shariah, they were given a third and two-thirds was held for others who may be eligible. But on further investigation it was discovered there is no one eligible of the two-thirds from the above mentioned categories. Consequently, the remaining amount will be given to this musa lahu bi jami’l mal.

(11) Bayt al-Mal: If no one from the above mentioned categories, the estate will be given to the bayt al-mal (Muslim treasury) which then should be spent on [the needy who are destitute and have no one].

(12) Radd bi Zawjayn: If there no one from the above mentioned categories, the general books of fiqh state that the tarkah of the deceased be given to the bat al-mal. However, when the later scholars have seen that in our time there is no bayt al-mal or [if there is] they do not spend it in an Islamic cause, they deemed that if there is a spouse and for the remain amount there is no one from above mentioned categories, the spouse should be given the remaining amount.

Mu’in al-Fara’idh #2: Payment schedule

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 28 Rabi II 1437 | 8 February 2016

(1) Shroud and burial: First and foremost, pay the shroud and burial expenses from the deceased’s estate even if it requires that the entire estate be spent. You should be moderate in the funeral expenses. For example, the shroud should be of the standard which the deceased may have worn in jumua, the two Eids or when meeting friends.

(2) Debt payment: [Secondly,] repay [recognised] debts which are owed to people from the estate which remains after the payment of [necessary] funeral expenses even if it requires that the entire estate be spent.

If the estate is insufficient to repay all the debts, give priority to the payment of strong debts over weak debts. For example, debts incurred whilst the deceased was healthy or debts which are proven conclusively will be given priority over debts admitted (without any verifiable proof) whilst the person was dying . If multiple debts of equal standing have accumulated, divide the estate amongst the creditors according to their proportions.

Arrears of zakat and kaffarat are written off as a debt in this world. The reason being, it not associated with the rights of the people rather it is the right of Allah Almighty. Of course, the inheritors or someone else may give it from their own wealth as a form of compensation if they please. If the deceased at the time of their demise bequeathed that it be paid, it would be classified as a bequest.

(3) Bequest: [Thirdly,] fulfil the bequest (wasiyyat) of the deceased from one third of the estate (tarkah) which remains after the payment of [recognised] debts.

Wasiyyat (bequest) refers to the asset which the deceased expressed that it be given to a particular person or cause [upon their death].

In fulfilling the bequest, it is a requisite that (1) it not be more than a third, (2) it not be given to an heir automatically inheriting when the deceased died and (3) it not be a cause which contravenes the shari’ah.

If it is more than a third or the bequest was for an heir, it may not be fulfilled without the consent of the remaining heirs.

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Keyword: Mal (estate: all the money and property owned by a person), Tarkah (the net asset of the deceased), Dayn pl. Duyun (debts), Wasiyyah (bequest).

Note: This schedule of payment which occurs before any heir receives their share is known as muqaddamah ‘alal irth.

Mu’in al-Fara’idh #1: Introduction

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 25 Rabi II 1437 | 5 February 2016

We praise Allah Almighty and send salutations to His noble Prophet.

Before starting any subject the introductory matters are mentioned so that the student may find it easy to learn and understand. Hence, before starting ilmul fara’id, we shall write the definition (ta’rif), subject matter (mawdu’), objective (ghard wa ghayat), some keywords and technical terms so that you may find learning this subject easy.

Definition: This is the knowledge of the rules and cases of fiqh which if known one will be informed of (1) the legal heirs of the deceased and (2) the legal principals of how to determine the shares of their inheritance.

Subject matter: The deceased’s estate (tarkah) and the eligible heirs (waratha).

Aim and objective: The aim of this knowledge is to discover the eligible heirs of the deceased’s estate and their share.

Etymology:  Fara’idh (فرائض) is derived from faridhah (فريضة) which means to fix. This knowledge is called ilmul fara’idh as the shares that are stated for the heirs, their amount are fixed by Allah Almighty himself.

Virtue: The Prophet of Allah (peace be upon him) says, ‘Knowledge is of three and all else is a bonus: the clear ayat, established sunnah and the fair share’ (Abu Dawud). The Prophet (peace be upon him) also said, ‘Learn inheritance and teach it’ (Ibn Majah). In another narration, [he says], ‘It is the first thing which will be taken from my ummah‘ (Majma’ al-Anhur).

قال رسول الله صلي الله عليه وسلم العلم ثلاثة، و ما سوي ذلك فهو فضل: اية محكمة، أو سنة قائمة، أو فريضة عادلة رواه أبو داود و قال صلي الله عليه و سلم أيضا تعلَموا الفرائض و علّموها، فإنها نصف العلم رواه ابن ماجة و في رواية أخري في مجمع الأنهر و هو سنتي و هو أول شئ ينزع من أمتي.

In consideration of these narrations, the importance and virtue of this knowledge over other subjects is apparent. Furthermore, before commencing on this subject, it is important that the student know mathematics in addition to sarfnahw and the masa’il of fiqh.

Tarkah: Any asset or property (be it real or owed) which remains after a person has died minus any asset associated with the rights of another person. For example, the asset of the deceased which the deceased has placed as a security of a loan or an asset which was bought but not paid and the buyer dies before taking possession of the asset. In these cases, as the lender or sellers right is associated with the asset, it will not be included within the tarkah.

Keywords: Mayyit (the deceased person), Tarkah (the net asset of the deceased), Warith pl. Waratha (heirs: a person entitled to inherit the asset of the deceased person), Fara’id (inheritance)

[Mu’in Fara’id is a standard primer for mirath which is taught before or in conjunction with Siraji]