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Distribution of Inheritance in Our Society

Inheritance

By HAMID AKHTAR

Knowledge of inheritance system (Wirasat) has diminished in our society so much so that, you survey ten religious scholars and you will hardly get one who knows this even substantially. Had there been no ‘Imarat-e-Shariah’ or other such institutions, even dispute couldn’t be redressed.

One wonders, there are so many deaths day in and day out, does one hear distribution of wirasat in families with matching numbers? We keep reciting Surah Al-Nisa especially ayaah 11-12 and still evading the responsibility of distribution of inheritance. Influenced by our Hindu brethren, who find ways and means even today after various Succession Acts not to give inheritance to women, we too hardly do justice to our womenfolk. If a random survey is conducted, one can find that most of the time wealth is not distributed to close relatives as prescribed by the Qur’ān and Hadith. The goody-goody approach leads us to a situation whereby we mix up all wealth of husband, wife and children. After the death of the person, the wealth remains in the hands of these members of the family alone and that too sans womenfolk. Where are the shares of mother, father, wife, and in special cases sister, grandson, granddaughter, brother and nephew?

If one recites ayaah 11-14 of Surah Al-Nisa and he doesn’t shudder then he should search his Imaan in the Qur’ān. Let me probe once again by asking why it is so, that Khateebs/Imams of mosques and Ulema emphasise so much on salat, fasting and dhikr while leaving zakat, infaquue, qarze-hasana, and distribution of inheritance? There is a common thread in all this, that these Ulema don’t touch these and many other Shariah laws as these are not liked by their followers.

It is true that distribution of inheritance (share of various close relatives) is complicated but the principles, the philosophy, basic postulates of Islamic inheritance, is simple, natural, logical and convincing. Can’t at least these be educated to masses?

In today’s world where money matters so much and almost everything is decided by economy, the distribution of wealth (movable or immovable) justly is all the more important.

The Holy Messenger (peace and blessings of Allah be to him) said, “Learn the Qur’ān and teach it to others and learn inheritance rules and teach them to others. This is because this science will perish and trials will occur to the extent that two persons may differ concerning a prescribed share of inheritance and they will not find a person to judge between them.” (reported in Ibn e Maja and Ad-Darami).

After these lines of introspection of the community, let us proceed further and have glimpses of basic postulates of Islamic system of distribution of Wirasat.

 

FIVE MAIN CONSIDERATIONS

Break-up of concentration of wealth;

Respect of right of individual ownership;

A person is only trustee and not absolute master of wealth;

Consolidation of family system; and

Encourage economic activities.

Each of these considerations is a subject in itself and Islam emphasises these to mould our mindset accordingly and to create a just world.

 

BASIC PRINCIPLES OF DISTRIBUTION

First of all, before distribution of inheritance, following obligations will be fulfilled in that order,

Funeral expenses;

Debts and Mehr (Not Zakat, Nazr, etc); and

Payment of will (maximum 1/3rd to non-Waris).

Inheritance is basically allocated to close relatives (marriage and blood relatives)

Close relatives viz. parents, husband/wife, sons , daughters, will obstruct the right to inheritance to more distant ones.

Both movable and immovable properties are to be distributed.

None has a right to a person’s wealth during his lifetime.

Distribution depends on the nature of one’s relationship with the deceased person, never the financial condition or the requirements of the claimant.

It will be distributed to only those successors who are alive at the time of the person’s death.

In case there is no inheritor, the wealth will be distributed to poor relatives and Baitulmaal.

 

TYPES OF INHERITANCE

Mainly there are two types of inheritance, viz.

Heirs and Heiresses of prescribed shares of inheritance (Zul Frooz) –  This type of heirs include persons who are entitled to inherit a prescribed share of inheritance based on the text of the Qur’ān and sunnah of the Prophet. This category includes Husband, Wife, Mother, Sister, Half brother on the mother side, Daughter, Son’s daughter, Grandfather, etc.

Residuaries (Asabah) – those persons who are related to the deceased through male links only. They are heirs as per the Quran and Hadith but have no fixed share. They get whatever remains after distribution to Zul Frooz.

There is a third type of inheritor also, called Zul-Arham who are relatives of the deceased through female link, like maternal grandfather, maternal uncle. They get inheritance only if the above two types of relatives are not alive. There are some relatives who never inherit like relatives from in-law sides. This is because they basically belong to other family.

 

ACTUAL DISTRIBUTION

After obligations of funeral, debts and will (maximum 1/3rd), the inheritance is first distributed among Zul Frooz (Fard). Following relatives will get share viz. Husband, Wife, Father, Mother and Daughter. Their shares differ in different situations as follows:

Husband – He gets 1/4th of wealth if the deceased has any son, daughter, grandson, granddaughter, etc. Otherwise he gets ½ of the property.

Wife – She gets 1/8th if the deceased has son, daughter either from this wife or from others. Otherwise she gets 1/4th. More than one wife will share within 1/4th / 1/8th.

Father – i) He gets 1/6th if son, grandson are available,

ii) He will get 1/6th as well as residuary (Asaba share) in case the deceased has daughter or granddaughter but no son, grandson.

iii) In case the deceased doesn’t have any son, daughter, grandson, granddaughter, then father gets all that remains, as Asaba and no fixed share is given to him.

Mother – i) She gets 1/6th if the deceased has any son/daughter or two brothers/sisters, otherwise she will get 1/3rd.

ii) If the deceased has left behind mother, father, husband/wife, then mother will get 1/3rd after giving share of wife/husband.

Daughter – i) in case the deceased has only one daughter, then she gets ½,

ii) If there are two or more daughters only, and no son, then 2/3rd of the property is distributed among them.

iii) If the deceased has daughter and son both, then the residuary property (Asaba) will be distributed among sons and daughters in the ratio such as each son gets double that of daughter.

Other Zul Frooz , for example, grandfather, granddaughter will inherit as Zul Frooz, only if father and daughter are not alive.

Asaba

After giving shares to Zul Frooz, the remaining property is distributed to relatives called Asaba. They are listed below in order of nearness:

Son, Son and Daughter together

Grandson, grandson with daughter and further down

Father,

Grandfather and further up, and

Own Brother, Sister

Following principles are adopted to distribute inheritance among Asaba:

Nearer Asaba gets full and other become Mahjub,

If there are two or more Asaba in the same group and they are same in nearness, then the property is distributed among them in the ratio 1:1 (1:2 in case of female Asaba)

The system of distribution will become clearer after taking following examples:

 

Examples

The person who has died has wife, mother, father and 4 sons and 5 daughters. Distribute the property.

Distribution of inheritance

Wife – 1/8th, because son/daughter available

Mother – 1/6th, because son/daughter available

Father – 1/6th, because son/daughter available

After distributing to above Zul Frooz, the remaining i.e. – {1-(1/8+1/6+1/6)} = 13/24 will be distributed among Asaba in the ratio 2:1 among sons and daughters. Thus each son will get 1/24th part. Total of all parts become one full.

Another dead person, for example, has left father, mother, wife and 2 daughters.

Distribution

Father – 1/6 + remaining (Asaba if remains)

Mother – 1/6 (because daughter is alive)

Wife – 1/8 (as daughter is alive)

Daughter – 2/3 (1/3rd to each)

But total becomes 1/6+1/6+1/8+2/3= 27/24 which is more than 1. In this case the distribution will be in the above ratio i.e. 1/6: 1/6: 1/8: 1/3: 1/3 or 4:4:3:8:8 considering 27 parts of the property.

Clarification of few oft repeated so-called imbalance in Islamic inheritance system

Women’s share is less in Islamic inheritance law.

The truth is that it is Islam which raised the status of women in all respect, including inheritance. Before Islam all the estates were given to men in Roman, Judaism, Christianity and Hinduism and in some cases only to the eldest son. Even wife’s share was not given. Even now after faulty legislation, there are hardly few cases where daughters are given their share. Society on the whole finds ways and means not to give any share to them. The fault in the system was confirmed after Kargil war, when a large number of young soldiers were killed in the war and all the compensation and other properties were given to widows and none to parents. The widows got more than due share and parents who had toiled to raise and get job to their sons, got no financial support. There was hue and cry in the society and rules have been in the process of change ever since.

In contrast to above extreme solutions, Islam distributes shares as per following rules:

Degree of Kinship- closer- the more share, i.e. – daughter has share of ½ property if she is alone. But if daughter and granddaughter both are available, then the daughter will get ½ and granddaughter 1/6th to make it total of 2/3rd.

Age of heirs – The younger – the more share. Example – daughter ½ share, grandmother – 1/6 share

Proportional to responsibility of sustaining others – Male members have to sustain and support families.

Based on the above principles, women receive 1/2 share, equal share and sometimes even more share than men. There are cases when women receive prescribed share while men are completely excluded. Some of such cases as follows:

Male-female share from father side 2:1

Male-female share from mother side 1:1

Half brother from father side excluded if full brother available, but half brother from mother side are not excluded.

Grandson will not get inheritance in absence of son, if another son is available.

Before clarifying this objection, let us see the basic postulate of Islamic law of inheritance, which are as follows:

None has a right to a person’s wealth as long as he is alive.

Those of his successors who died during his own lifetime, will not get inheritance

Or

It will be only those of his successors who are alive at the time of his death, who will get inheritance.

Inheritance is basically allotted to ‘Close Relatives’. Here close relatives mean parents, husband,, wife, sons and daughters.

Close relatives will obstruct the right to inheritance of more distant ones. Nobody else can claim any right in the presence of close relatives.

Accepted standard of allocating the wealth of inheritance is the nature of one’s relationship with the deceased person, never the financial condition or the requirements of the claimants.

Thus it is not possible to allocate the wealth of a person in a completely just manner with the help of mere legislation. Moreover, preferential system of distribution to protect orphaned grandson, will destroy fundamental premises, disturb other distribution and will create imbalance. It is impractical too. But most important of all, Islam is not a collection of inheritance laws alone, rather it prescribes a set of social security too. Also responsibilities and rights go together. For example:

Son is duty-bound to protect the father as father is to son.

Grandson is not duty-bound to protect grandfather if grandfather’s son (uncle) is alive.

Grandfather is duty-bound to protect grandson who has lost his father.

Indifference to orphans is denial of religion as per the Qur’ān (107-1,2 .93-9 , 2-83 , 4-2 ).

Wasiyat (will) is compulsory as per the Qur’ān (2-180).

Wasiyat up to 1/3rd of total property to close relatives who come next to immediate successor (not for waris)

While a person is alive, he can give any amount of his wealth to anyone especially for orphan (son’s son).

Thus responsibility of orphaned grandson is with grandfather when alive. After his death, responsibility shifts to paternal uncle.



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