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Blood Relationship As A Basis of Inheritance Under Islamic Law A Case Study of The Inner and Outer Circles of Family
Blood Relationship As A Basis of Inheritance Under Islamic Law A Case Study of The Inner and Outer Circles of Family
FAMILY
BY
AHMED, Barkindo
LL.M/LAW/16384/2007-2008
SEPTEMBER, 2012
CERTIFICATION
……………………………………….. …………………
Professor Sani Idris Date
Chairman, Supervisory Committee
……………………………………….. …………………
Professor Y. Y. Bambale Date
Member, Supervisory Committee
……………………………………….. …………………
Dr. Bala Babaji Date
Head of Department Islamic Law
……………………………………….. …………………
Professor Adebayo A. Joshua Date
Dean Post-Graduate School
ii
DEDICATION
I dedicate this Research Work to the course of Allah (S.W.T) and for
humanity in general. I pray Almighty Allah to give my parents eternal peace and
Al-Jannatul firdaus.
iii
DECLARATION
Sani Idris and Professor Y. Y. Bambale, No part of this work has been submitted
to any other institution for any academic awards. All references made in the
……………………….... …………………….
Ahmed, Barkindo Date
iv
ACKNOWLEDGEMENT
My humble thanks and gratitude are due to Allah (S.W.T) who gives me
who with patience guided, encouraged and supervised the research work. my
thanks goes to my able minor Supervisor Professor Y.Y. Bambale who assists
me in various ways. I also thank professor A M. Gurin who is the initiator and
advisor to this work. I feel I owe them a lot to which I cannot repay.
especially Mallam Umar Salihu Muhammad and Tijjani Ahmad Abbas. Finally,
wife and children for their patience and help they have rendered to me
v
ABSTRACT
However, the method and procedure of such inheritance differ from one society
to another. Therefore, the past and present societies have their systems of
inheritance. For example the Arabs before Islam, Christians and Jews may have
things in common but would differ in certain degrees. The people in this world
have been struggling to acquire wealth. The tendency to “get” is very strong that
they continue to struggle for the whole of their lives. However, man always
reminds himself that “life is short” and, therefore, he is also in “need” of
somebody who can succeed him in his property and continue with the struggle.
Naturally he would prefer his blood relatives and spouse to inherit him.
Considering this phenomenon the knowledge of Islamic law of inheritance
becomes necessary. The Prophet (S.A.W) said “learn the knowledge of
inheritance and teach it to others, because it is half of knowledge and it is easily
forgotten and it is first knowledge to be lifted from my Ummah”.
This researcher is hoping to be in line with the above Hadith and intends to
discuss the topic “Blood Relationship as a Basis of Inheritance under Islamic
Law: a case study of the Inner and outer circles of family.” By this topic the
researcher will contribute however little to the development of the science of
inheritance. In order to provide a solid foundation the research has traced the
historical development of succession from the period before Islam to the time
when the three verses of inheritance were revealed. It has also considered the
inheritance of Jewish and Christian law of inheritance. The research work has
classified the heirs into four categories of blood relationship. Under these
categories each legal heir inheritance, how he is excluded and excluded others
have been considered. The succession right of the heirs of inner and outer circles
of family has also been analyzed.
vi
TABLE OF CONTENTS
Title page - - - - -- - - - - i
Certification - - - - - -- - -- - ii
Dedication - - - - -- - - - - iii
Declaration - - - - -- - - - iv
Acknowledgment - - - -- - - -- v
Abstract - - - - -- - - - - - vi
Chapter One:
1.0 Introduction - -- - - - - - 1
1.1 Statement of the Problem - - -- - - 7
1.2 Aims and Objective of the Research - - - -- 8
1.3 Scope of the Research- - - - - - - 9
1.4 Methodology - - - - - - - - 10
1.5 Literature Review - - - - - - - 10
1.6 Justification - - - - -- - -- -- 16
1.7 Organizational Layout - - - - -- - 16
Chapter Two:
Historical Development of Islamic Law of Inheritance
2.0 Introduction - - - - - - - - 18
2.1 Jewish Law of inheritance -- - -- 20
2.2 Christian Law of Inheritance - - - - -- 25
2.3 Inheritance in Pre-Islamic Arabia - - - 29
2.4 Inheritance during the Early Period of Islam - - 33
vii
2.5. Inheritance after Migration (Hijirah) -- - - - 34
2.6 The three fundamental Verses on Islamic Law of
Inheritance- - - - - -- 40
Chapter Three
Blood relationship as a Basis of Inheritance under Islamic Law
3.0 Introduction - - - - - - 53
3.1 Blood relationship as a basis of inherence 53
3.2 Blood relatives of inner circle of family 55
3.3 The blood relative of outer circle of family 69
3.4 Some Challenges affecting Islamic Law of inheritance 77
Chapter Four
Analysis of the Succession Right of the Heirs of Inner and Outer family
4.0 Introduction 96
4.1 Heirs of the Inner Circle of Family (Ashabul fara’id wal Asaba) 97
4.2 Inheritance of the Ascendants 104
4.3 Inheritance of the Descendants 120
4.4 Inheritance of the Collateral 135
4.5 Inheritance of the Uncle 152
4.6 Heirs of the Outer Circle of family (Dhawul Arham) 154
Chapter Five
Summary, Observation and Recommendation
5. 1 Summary 188
5.2 Observation 190
5.3 Recommendation 192
Bibliography 197
viii
CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION
1
Khubali, I. A. Al-Azbul Far’id, Darul Kutubi Ilmiyya, vol 1., (1121H), P. 26
2
Al-Jaza’iriyi, A. J. Minhajul Muslim, Darul Fikr, (1976), P. 403
3
Adawi, A. A. Hashiyatu Al-Adawi, Darul Fikr, Beirut Lebanon, Vol. 2, P. 325
ix
the death of the praepositus4. This research work is
soever. 5
follows:
4
Khubah, I. A. Op. cit, PP. 6-7
5
Ibid, P. 27
6
Maliki, U. H. Sirajis – Saliki Sharh Ashalil Masaliki, Vol. 1, Mustafal Babi Alhalabi, Egypt, (N.D),
P. 237
x
and related to the praepositus by blood
relationship.
7
Al-Jaza’iriyi A. J. OP. Cit., P. 408
8
Ashur, M. ilmul Mirath, Maktabatu Quran, (N.D), P. 61
9
Tijjani, Y. S. A. fathul Jawadi Fi Sharhil Irshad, Fourth Edition, Vol. 2, (N. D), P. 340
xi
circles of family is based on the classification of
10
Ali, A. Y. The Holy Quran Text, Translation and Commentary, the Islamic University of Al-Imam
Mohammad Ibn Sa’ud, Riyad, (N.D), P. 182
11
Khabali, I. A. Op. Cit. P.27
xii
of son's daughters and their descendants how low
soever.
soever.
12
Khubali, I. Al-Azbul Fa’id Sharh Umdatatul Farid, Darul Kutub Al-Ilmiyyah Vol. 2, (1999), P. 19
xiii
person to his serving relatives, by law voluntarily after his
leaving wealth, let those who are his nearest blood relations
sponsor".16
13
Arrahili, W. Fighul Islkami’wdadillatuhu. Vo.8, Darul Fikr, (N.D), P. 243
14
Ali, A. Y. Op. Cit, P. 180
15
Ibid, P. 189
16
Siddig, A. H. Sahih Muslim Translated into English, Vol. 13, Darul Arabiyyah, Beirut, Labanon, (N.D),
P. 856
xiv
Another Hadith said:
The research work will be concerned with not only the principles
17
Al-Selek, M. Bulug Al-Mara’am main AdillatulAhkam, Dar Al-Aker, Beirut Lebanon, (N.D), P. 409
xv
historical development of succession from the period before Islam
inheritance. The work will classify the heirs into four categories of
work will identify certain problems that are affecting our society.
with a view to identify the legal heirs who inherit under this
xvi
limelight the problems associated with women librations,
the heirs of inner and outer circle of family. This will come
xvii
this work will therefore be limited to the relevant authorities
circles of family.
1.4 Methodology
18
Aliyu, A. Al-Hashiyatul Adawi, Darul Fikr, Beirut Lebanon, Vol. 2, (N.D), P. 328
xviii
pointed out those who are eligible to inherit. But did not
legal heirs but has not gone deep into analytical and practical
relevant and some are shared in this work area. While the
19
Hussain, A. The Islamic Law of Succession, Darussalam Riyadh, (2005)
20
Athur, M. Ilmul Mirath, Maktabatul, Quran, (N.D), P. 36
21
Abu-Zahra, M. Ahkamu Tarika wa Almawarith, Darul Fikrul Arabi, (1963), P. 142
xix
and the legal heirs, as can be seen in the book, this
heirs.
family which this research work will build on and develop the
conclusion.
22
Assabani, M. A. Al-Mawarith Fi-Shariati Islamiyyah, Ala Dau’il Kitabi Wassumah), Darul Kutubil
Ilmiyyah, (1388H)
23
Ambali, M. A. The Practice of Muslims Family in Nigeria, Tamaza, Zaria, (1998), PP. 269-294
xx
cognatic heirs are not made clear by showing how their
shares.
24
Al-Jibaly, M. Inheritance Regulations and Exhortations, Second Edition, Alkitab and Assunnah Pub.
(N.D)
25
Al-Obeidy, a. m. Treatise on Inheritance in Islam, Bukhari, Madina, (2004)
xxi
Khalifah, M.T.A. (2007) 26 his book "Al-Ahkam Al-
conclusion.
various legal heirs but has not gone deep in to analytical and
26
Khaliper, M.T.A. Al-Ahkam Al-Mawarith, Darussalam, (2007),
27
Sabig, A. Fighussunnah, Darul Fikr, Vol. 3, (1971), PP.602-664
xxii
Arham (distant Kindred) is not well put together for the
ground of inheritance.
28
Al-Azhari, S.A. Jawahirul Iklil Sharh mukhtasar Khalil, Cairo, Vol. 2 (N.D)
xxiii
Al-Qayrawani, I. (1939)29 in his book "Risala” wrote very
the book over the years. Hence, the book is one of the
1.6 Justification
29
Al-Aqyrawani, I.I. Risala, Attijjani Al-Muhammadi, (1939)
xxiv
Chapter one general introduction of the topic of the
xxv
CHAPTER TWO
INHERITANCE
2.0 Introduction
1
Hussaini A. The Islamic Law of Succession, Darussalam Riyadi’h (1999), P. 31
2
Ali, A. Y. The Holy Quran, text Translation and Commentary, The Islamic Univerisity of Al-Imam
Mohammad Ibn Sa’ad, Riyadi’s P. 228
xxvi
The verses also outlined laws concerning political alliances
thou find the Jews and pagans and nearest among them in
love to the believers wilt thou find those who say “we are
learning and men who have renounced the world and they are
marriage) are not only chaste women who are believers but
your time….”4
3
Ibid, P. 268
4
Ibid, P. 241
xxvii
The discussion on the historical development will show
blood relationship.
heirs6.
5
Ibid, P. 1103
6
Ashur, M. Ilmul Mirath, Maktabatul Qur’an, (N.D), PP. 22-24
xxviii
A son and his descendants come before the daughter. The
the sisters. The sisters and their descendants come before the
A man inherits from his mother and the husband from the
inherit.8
The Jewish law set for the procedure for distribution of estate;
there are male heirs in the same class. This means daughters
heirs.9
7
Lakhvi, S. H. Almirath Justice of Islam in the Rules of Inheritance, kano Nigeria, (2003), P. 1
8
Sebastine, C. Christian Law of Succession, India, Southern Law publishers, Retrieved April 28, 2008
from http://www.jlaw.com
9
Judah, D. The Inheritance and Jewish, Retrieved April 28, 2008 from http://www.jlaw.com
xxix
Therefore, when male children exist, they are the
daughter and three sons, one of whom is the first child of the
deceased. In this case the exclusive heirs are the three sons
and the first son takes double shares to the share of one.
Thus:
W D 3 S Residue
= 112,500
Total = 450,000
10
Ashur, M. Ilmul Mirath, Maktabatul Quran, Cairo (N.D) P. 11
xxx
children his father is the sole heir. In his absence the paternal
until the time that she claims the lump sum due under the
maturity age of twelve and a half years and for a dowry at their
divided equally. So did the several sons aside from the double
11
Sebastine, C. Chrisitan Law of Succession in India, Southern Law publishers, Retrieved April 12, 2008
from http://www.askmoss.com
12
Deuteronomy 21:15-17
xxxi
if the father’s brother died after him the first son will not
before his father, his own children take the double share in
Thus, when A has two sons; B and C, who died before him
thirds of A’s estate, and C’s children one third of A’s estate.13
and claim it. After the expiration of the time it becomes the
13
Sebastine, C. Chrisitan Law of Succession in India, southern Law Publsihers, http://www.ask moss.com
14
Ashur, M. Ilmul Mirath, Cairo, (N.D), P.11
xxxii
property of one of those who possessed it, and they share it
Testament.16
15
Ibid, P. 22
16
Ibid, P. 11-22
xxxiii
development. Christianity started between the then two super
powers, hence, Jews and Romans.17 The two forces could not
form the Old Testament which constitutes the law for both the
Christian and the Jews. But the former do not give the Old
laws are not given valid application. Therefore, the Jewish Law
relates to law.
and Old Testament would not meet the wish and desire of a
xxxiv
inheritance described in the Attaura. That is he cannot
there was desire to exercise one’s free will by making the law
The focus was as to how can a man direct the way his estate
19
Hazan, Y. M. The Jewish Law of Inheritance, (1850), P. 7
20
Holy Bible, Mathew 22:21
xxxv
people started to make wills or bequest in favour of persons of
their choice.
1852, Wills Laws Cap 133 of 1959 laws of western Nigeria all
21
Sagay, i. Nigerian Law of Successions, Malthouse Press Limited, (2006), P. 79
xxxvi
his life time. Thus if a person contracts a Christian marriage
22
Cap 1,9559, Law of Western Nigeria
23
See Administrator General v. Egbuna and others (1945) 18 NLR 1
24
Siddigi, A. Sahih Muslim Translated into English, Vol. 3 (N.D) P. 849
xxxvii
strong and able to defend or protect the honor of the family or
clan had the right to inherit. Under that principle, women had
inheritance but also weak, old, sick and minor persons were
only.29
25
Assabuni, M.A. Al-Mawarith Fi Shariatil islamiyyati Fi Dau’il Kitabi Wassunnah, Darul Kutubil
Ilmiyyah, (1388H.) P. 20
26
Ramhimi, A. Islamic History, I.P.B Lagos Nigeria, (1987), P.7
27
Lakhvi, S.H. Op. Cit. P. 6
28
Kaeffi, S. D. Some Aspects of Islam i.e. Law of Succession, Rukhsa Publication, 1990) PP. IX-X
29
Ibid
xxxviii
Arabs then used to ill-treat women especially the widows and
makes her his wife or marries her off to somebody and receives
choice just like any other free woman. Where the man
xxxix
his son until he grows up to marry her. The purpose here is to
preserve both the girl and her property for the son. Thus, the
period, that they would not allow the heirs of the deceased
person inherit except those that can defend the family or clan
32
Ibid
33
Assabuni, M. A. Op. cit. P. 21
xl
2.4 Inheritance During The Early Period Of Islam
xli
the respective heirs. By so doing, most of the heirs are females
the death of the Prophet (S.A.W) in 632 C.E. marks the end.
36
Hussanin, A. The Islamic Law of Succession, Darussalam, P. 26
37
Philips, A. A. B. The Evolution of Figh, I. I. P House, P. 9
xlii
order to encourage Makkan Muslims to migrate to medina and
Mecca) and fought for the cause of Allah with their wealth and
38
Ali, A. Y. OP. Cit, P. 1104
xliii
“……..nor has He made your adopted sons your
sons. Such is (only) your (manner of) speech by
your mouths. However, God tells (you) the truth
and He shows the (right) way”39
39
Ibid, P. 1102
40
Ibid P. 184
xliv
of Allah, verily Allah is well acquainted with all
things”.41
Similarly, the following verse 33:6 states that:
that by the last part of 4:33 the right to inherit by way of Wala
still exists.
41
Ibid, P. 435
42
Holy Quran Surah 33:Ayah 6
43
Abu – Zahra, M. Ahikamu – Tarikat wal – Mawarith, Darul – Fikri – Arabiyi (1963) P. 17 and Quran
xlv
The verse reads:
1/3 of the net estate. One jurist Al-jassas also agreed with this
Heirs.
44
Ali, A. Y. The Holy Quran, Text Translation and commentary, Lahore, (1954), P. 189
45
Abdul-Nasir, M. fill- figh- Al- Islam, Vol. 4 (N.D), P. 278
46
Keffi, S. D. Some Aspect of Islam Law of Succession, Rukhsa Publication (1990), P. IX
xlvi
Another mode of succession introduced by Islam at the
says:
47
Lakhvi, S.H.A. Al-Almirath, Justice of islam in the Rules of Inheritance, Kano-Nigeria, P. 198
48
Rushdi A. Bidayatul Mujtahid Wa Nihayatul-Mugtasid, Vol. 2, Darul Fikr, (1975), P. 251
49
Ali, A.Y. Op. Cit, P. 189
xlvii
At this stage of law development after abolishment,
legally theirs.”50
given to them.
Inheritance
The verses are chapter 4:11-12 and 176 of the Holy Quran.
xlviii
of the deceased how low so-ever, parents how high soever, all
The above verse is part of the verse, which fixed the shares of
children and issues of his male child how low so ever. Also by
51
Ibid, P. 181
52
Assabuni, M.A. Al-Mawarith Fi Shariatil Islamiyyah Fi Dau’il Kitabi Wassunnati, Darul kutubil
Ilmiyyah, Lebanon, (N.D), P. 53
xlix
“……For parents, a sixth share of the inherence to each,
the (only) heirs the mother has a third, if the deceased left
and wife. They can inherit each other by virtue of this verse.
53
Ali A.Y.OP. Cit, Op. P.181
54
Ibid. P. 182
l
inheritance. The second part of the verse states the shares of
Quranic heirs.
55
Ibid
56
Assabuni, M.A. Al-Mawarith Fi Shariatiz Islamiyyah fi-Dau’il Kitab Wassunnah, Durul Kutubil
Ilmiyyah, (N.D), P.56
li
The Ayat was revealed fixing the shares of the
son, daughter and parents of the deceased
person. However, some people were not
happy with it and they claimed how could
one give ¼ or 1/8 to the wife, ½ to the
daughter and give a share to a minor son.
Whereas such persons cannot fight the
enemy and bring home the booty from the
battlefield. They resolved among themselves
that the Prophet (S.A.W) should forget the
implementation of the new law or change it.
Consequently, they called on the Prophet
(S.A.W) saying, “oh messenger of Allah you
give the daughter ½ of her fathers estate but
she cannot ride the horse, fight the enemy
and you make the minor son inherit his
father but he cannot bring prosperity to the
family. Ibn Ali Hatimu and lbn Jarir narrated
this.57
female and shares given to even minor and weak persons was
57
Rushdi, A. OP. Cit. 586
lii
not expected by the Arabs during the early period of Islam. To
only who can defend the family or tribe in the battle field.
The word Kalala in this verse is called Kalala number two. The
58
Ali A.Y. OP.Cit, P.235
liii
From the Sunnah came the causes of revelation of the above
59
Al-Bukhari, Darul Hayati Kutubil Arsbiyyah Vol. 41, P.163
liv
inherence was revealed. The Prophet (S.W.A)
sent for their (daughters) uncle and said to
him give 2/3 to the daughters of Sa’ad and
1/8 to their mother and you take the residue.
Five narrators except An-Nasa’I narrated this
hadith”60
It can be noted that from the above verses the shares of some
(S.A.W) explained;
This means that there are two types of heirs; they are
60
Sabig, a. Fighu-Sunnah, Darul Kutub Arabiyyah, Vol.3, (1983), P.603
61
Khan, M. M. The Translation of the Meaning of Sahih Al-Bukhari Arabic-Englis, Darul Al-Arabia,
Vol. 8. P. 402
lv
shares are not fixed in the Quran. From the above Hadith, it
always wait for the remainder of the estate, where they inherit
along with the Quranic heirs; otherwise, they take the whole of
for his family (inheritors).62 Here too the Sunnah of the Prophet
of the heirs. However, the prophet (S.A.W) warned that they (all
62
Muslim, S. Shaih Muslim, Darul Arabiy, Vol. 3. (N.D), P. 855
lvi
“Narrated by Aisha (R.A) the Prophet (S.A.W) said ‘our
63
Al-Bukhari, Sahihul Bukharli, Darul Ahya’I Kutubil Arabiyyah, Vol. 4, P.165
lvii
grounds of inheritance during the period included blood
other Quranic heirs. It has not also allowed double share for
the first born male child but rather makes a male child takes
lviii
example Islamic law adopted and modified the concept of
law. The verses of the Holy Quran added more heirs to the
son’s son, son’s daughter, uncle’s son etc. thus the Quranic
lix
and social unity among the individuals and the society at large
lx
CHAPTER THREE
3.0 Introduction
1
Arif, M. Khilasatu Ilmul Fara’id Azhariyyi, (1937), P. 6
2
Ibid, P. 18
3
Khubali, I.A Al-Azbul Fa’id Sharh Umdatul Farid, Darul Kutubul Ilmiyyah, Vol. 1. P. 26
lxi
in favour of blood relationship4 as a ground of inheritance. The
exile, and fight for the faith in your company, they are of you,
the Book of God, verily God is well acquainted with all things”6
blood relatives who can inherit each other until the normal
4
Lakwi, S.B. Mirath Justice of Islam in the Rules of in Inheritance, Kano , (2003), P. 11
5
Ali A.Y. The Holy Qur’an Translation and Commentary, Lahore, (1954). P. 1104
6
Ibid, P. 434
lxii
legal shares; orphans and incapable people are not to be
distribution.
there is a share for men and a share for women and a share
determinant share”7
7
Ibid P. 180
8
Ibid PP:181, 182 and 235
lxiii
circle whereas non-conventional refers, to those of outer circle
family.
ASCENDANTS:
3.2.1 Father
totally. This means that he can inherit at any rate and the
10
Quran 4:11
lxiv
3.2.2 True Grand Father (How High Soever)
3.2.3 Mother
11
Rashid, A. Iddatul-Bahith Fil Ahkami Tawarith, (1389), P. 20
12
Al-Qurdabi, M. Bidayatul Mujtahid Wa Nihayatul-Magtasid, Vol. 2, (595 H). P. 346
13
Ali, A. Y. Op. Cit. P. 181
lxv
3.2.4 True Grand Mother
the jurists the true grandmother is a Quranic heir and she can
lxvi
who can inherit according to Shafi’i and hanafi schools as
intervention.18
16
Hussain, A. Islamic Law of Inheritance, Wa Nihayal-Mugtasid, Darussalam, (2005), P. 210
17
Ibid
18
Al-Quradabiyi, M. Bidayatul Mujtahid, wa Nihayatul Mugtasid, Vol. 2, (5954), P. 262 Vol. 2 P. 350
lxvii
categories of true grandmother. Perhaps, the only seemingly
phrase “how high soever” which makes the two views overlap,
DESCENDANTS:
3.2.5 Son
that of two females.” From the above verse his share is twice
19
Hussain A. The Islamic Law of succession,Darussalam, Biyadh, (2005), P. 176
lxviii
3.2.6 Daughter
children) are only women, and are more than (or equal to) two,
left. And if there is only one woman, her share is half (of the
estate).22
something but the son’s son may be, in fact, excluded from the
21
Hussain, A. Op. Cit. P. 178
22
Ali, A. Y. Op. Cit, P. 181
23
Hussain, A. Op. Cit. P. 230
lxix
inheritance totally because there is nothing left for him,
COLLATERALS:
24
Ashiru M. IImul Mirath (N.D.) P 67
25
Abu-zahra, M. Ahkamut Tarikat wal-mawarith, Darul fikril Arabiyi, (1963), P. 134
26
Ali, A. Y. Op. Cit, P. 181
lxx
brother means a full brother or the son of both of ones
excluded from the inheritance by the son, the son’s son how
low soever, father and true grand father how high soever
only son, son’s son and father can exclude the germane
sister.29
27
Ibid, P. 138
28
Ali, A. Y. Op. Cit, P. 235
29
Hussain A. Hussain A. The ISLAMIC Law of Succession, Darussalam, (2005), P. 276
lxxi
3.2.11 Consanguine Brother
on the Holy Quran chapter 4 verse 176.31. But his share is not
30
Abu-Zahra, M. Op. Cit. P. 145
31
Ali, A. Y. Op. Cit, P. 235
32
Khalifa M. Y. Ahkamul Muwarith, Darissalam (2007), P. 193
33
Abu-Zahra, M. Op. Cit. 145
lxxii
a residuary by another34 and with another, and in both cases
she waits for the residue. She is excluded by son, son’s son
lxxiii
daughter how low so ever, father and true grandfather how
high so ever.38
and her share is fixed in the Holy Quran.39 Chapter 4 verse 12.
dependent on the Holy text. Despite the fact that she links to
the praepositus through her mother only when they are two or
38
Abu-Zahra, M. Op. Cit, P. 129
39
Ali, A. Y. Op. Cit, P. 182
40
Uterine sisters or brothers or Mixed together
41
Abu- Zahra, M. Op. Cit. P. 148
lxxiv
3.2.15 Germane Brother’s Son
where the deceased left two Germane sisters and two uterine
sisters. In this case, the two Germane and two uterine sisters
residuary.44
42
Al-Maliki,U. Siraju-salik As-habul MUSALIK Vol. 2 (N.D) p. 243
43
khubali, I. al-Azbul Faid Sharh Umdatul Farid, Vol. 2 (1999). P. 104
44
Ibid
lxxv
3.2.16 Consanguine Brother’s Son (How Low Soever)
inheriting.46
UNCLES:
There are two types of uncles, and they are paternal and
absence of the following heirs, son, son’s son how low soever,
45
Arif, M. Khilastu Ilmul Afraid (1937), P. 15
46
Khalifa, M. Ahkamul Muwarith (2007), P. 377
47
Hussaini, A. The Islamic Law of Succession, Darussalam (2005) P. 303
lxxvi
father, father’s father how high soever, Germane brother,
paternal uncles.
48
Hussain, A. The Islamic Law of Succession, Darussalam, (2005), P. 314
49
Arif, M. Khilastu IImul Fraid (1937), P. 18
50
Lakvi, S. H. Al-Mirath Justice of Islam in the Rules of Inheritance, Kano-Nigeria, (2003), P. 134
lxxvii
females or linked to the praepositus through females who are
some writers have over looked the definition and have thus
They are all blood relatives of the deceased person who, are
51
Alfauzzani, S. attahagigat AL-Mardiyyah Fi-Mubahithil fardiyyah, (1996), P. 260
52
Khuduri A. Addiya’u Ala Darratul Bai da’ul Fil-faraid Vol 2, (1973),P. 68
lxxviii
neither Quranic nor residuary heirs. Generally, all issues,
53
Ibid p. 68
54
Khubuli I. Al-Azbul Faid, Vol. 2. (1999) P. 4
lxxix
3.3.2 False Grand Mother (How High Soever)
lxxx
son (SDS) will exclude Daughter’s daughter’s son (DDS), this is
lxxxi
are DHAWUL ARHAM by their own nature not because there is
the rule that the nearer in degree of removal excluded the one
DHAWUL ARHAM.59
Sons of the uterine brother and sons of all the sisters are
58
Ibid
59
Khubali, I. Op. Cit, P.110
lxxxii
praepositus through the mother and sisters, respectively
Where there are heirs on both the paternal and the maternal
sides, the one on the paternal side is given twice the share of
60
Sabig, A. Fighus Sunnah, Darusl Fikr, Vol. 3. (1977), P. 446
61
Khubali, I. Al-Azbul Faid Sharh Umdatul Farid, Vol. 2, (1999), P. 49
lxxxiii
one on the maternal side. For example paternal side is given
heirs on the paternal side are not existing the maternal side is
given the whole estate and vice versa and share it accordingly.
The principle that the male takes twice the share of a female
applies.64
62
Khalifa, m. Ahkmul Muwarith, (2007), P. 377
63
Ashiru, M. iimul Mirath, (N.D), p. 1777
64
Gazali, H. Y. Al-Mirathu Ala Mazahibul Arah Dirasah Wa Tatbigan, Darul Fikr, (2008), P. 349
lxxxiv
enumerated above, under this chapter, are related to the
set out in paragraphs (a), (b), (c) and (d) of section II. Section II
inheritance.
lxxxv
The adoption of Maliki School alone has generated a lot
65
Unreported case No. MCA/CV47/1857
lxxxvi
survived the deceased in this case are his mother who got 1/3,
uterine, brother who got 1/6 and the paternal aunt who got
The criticism here is that the courts have given the aunt
Radd.
inherit rather than the treasury and the reason given was the
66
unreported case No. SCA/CV/57/1964
lxxxvii
Another aspect of the law of inheritance which deserves a
made by women who were denied the right to get land or some
67
Unreported Case No. SCA//CV/70/1962
lxxxviii
From the above case, the lower court was not of the view
that the daughters were legal heirs to inherit the house but
married they leave the house for others. This means that some
some judges of the lower courts may decide that the males
estate is a house the front door rooms are given to the males
from their rightful shares. The same wrong position was taken
68
Unreported Case No. GGS/SCA/CV/25/MB/1983
lxxxix
and that out door rooms shall be given to the males and the
person died all the property he left, after satisfying the claims
the property after distribution and that the court shall divide
share.
both males and females heirs may prefer the former type of
xc
Consequently, where there are more than one house, the
custom may require that the house which the deceased person
family will bring disputes over the house, which may result
xci
family. For example see the case of Iya Maiwaina v. Mamman
Captain.69
had died some time ago. She stated that her brother (father of
since his death. The house was occupied by her brother’s son
she could claim her share. When the trial court asked her why
she has not sought for her share of the estate she replied that
at that time she was away in marriage. And at that time she
69
Unreported Case No. SCA/CV/99/1962
xcii
From this case it must be understood that the trial court
must establish not only the death of the praepositus but also
the estate and all the legal heirs of the deceased person.
distribution.
should not be allotted to males only. See the case of Hajiya Yar
Shehu and three others v. Alhaji Garba Karfi.70 The only issue
this case was survived by his four wives and a brother and left
70
Unreported Case No. CA/K/1705/87
xciii
Court had erred to include the family house and the farm in
and it is dismissed.
71
Unreported Case No. UACIY/CV/FI/EST5/10
xciv
However, after some time the heirs realized that the family
case of
trial court distributed the estate among the legal heirs. The
72
Unreported Case No. ADS/SCA/CV/1/XL/2009
xcv
appellants were aggrieved with the decision of the trial court
The court found that the heirs in the case have not been
xcvi
other. The court, therefore, made an order of re-trial of the
case before same Upper Area Court No. 1 Yola before another
judge with the view to hearing same afresh and exhibit fair
when you know the law you deliberately ignore it and make up
xcvii
children and the parents are the (only) heirs,
the mother has a third.”73
73
Ali, A. Y. Op. Cit. P. 181
74
For Ourselves Women Reading the Quran, Published by Women Living under Muslim Law, (1997),
P. 136
75
Al-Selek, M. Bulugh Al-Maram Min Adilat Al-Ahkam, Dar El Aker, Beyrouth Liban, (1993), P. 409
xcviii
So, where there is father and mother inheriting, the
mother takes 1/3 and the father takes the remainder 2/3
the Hadith of the Prophet and IJMA of the jurists to mean the
are the only heirs in this case the mother takes 1/3 and the
xcix
father takes the residue which is 2/3.76 This is contrary to
what the women are saying because the father’s share doubled
not understand the content and full meaning of the verses and
the verses of the Holy Qur’an and the Ahadith of the Prophet
(S.A.W)
c
and IJMA has no legal effect whatsoever. Furthermore, it is not
and female heirs. Under the same law the female heir inherits
takes 1/3 share in the other situation and the male 2/3. The
daughter is given half of the estate when she coexists with the
the consanguine brother she takes half of the estate while the
other half goes to the brother. The father inherits 1/6 equally
sister.79 On the other hand the son inherits twice the share of
take double share for their sisters. The husband is given twice
78
Ali, A. Y. Op. Cit. P. 523 of chapter 59 verse 7 of the Holy Quran
79
Ali, A. Y. Op. Cit. P. 182
80
Ibid
ci
The rational behind giving a male heir a share twice the
cii
“Let those, disposing of an estate, have the same fear in
their minds as they would have for their own if they had left a
helpless family behind. Let them fear God and speak words of
appropriate (comfort).81
should be honest and kind to the legal heirs, one day it may
knows the law and applies it will go to paradise. But one who
does not know the law is a shared to say so will go to hell and
one who knows the law but intentionally dose injustice will go
to hell.”82
81
Ali, A. Y. Op. Cit. P. 180
82
Al-Selek, M. Op. Cit. P. 603
ciii
CHAPTER FOUR
4.0 Introduction
here will focus on two types of heirs; the heirs of inner and
1
Rashid, A. Iddatul-Bahith Fi-Ahkami-tawarith, Darussalam (1389 H), P. 11
2
Aifauzani, S. Attahagigat Al-Mardiyyan Fi—Mubahithil Fardiyyah, Darussalam
3
Abdul Hamid, Sharhul Rahabiyyatu Fi’imulmawarith, Darul fikr (1998), P. 181
civ
4.1 Heirs Of The Inner Circle Of Family (Ashabul Fara’id
Wal Asaba)
male Quranic heirs are the father, the true grandfather how
high soever and the uterine brother. The female Quranic heirs
are; the mother, the true grandmother, the daughter, the son’s
4
Attasuliyu, A. Al-bahjatu Fi Sharhi-Tahfa, Darul Islami Vol.2, (1951), P. 395
5
Al-Qurdabi, M. Bidayatul-Mujtahid Wanihayatul Mugtasid, Darul fikr Vol.2, (1975), P. 339
6
Sabigi, S. Fighu-Sunnah, Vol.3, Darul fikr, Beirut, (1984), P. 618
cv
called Adilah. Sometimes, however, the fixed shares may add
shares may not exhaust the estate, in which case the total of
7
Badran, B. Al-Mawarith Wal-Wasiyyah Wal.Hibah, Askandariyyah, Egypt, (N.D), P. and 73
8
Ibid P. 73
9
Dibawi, Khula-Satu Ilmul Fara’id Darussalam, Cairo, (1937), P. 15
cvi
consanguine brother or germane brother respectively. The
agnatic heirs are: son, son’s son how low soever, germane
excluded by any other heirs and who can exclude other heirs
both Quranic and agnatic heirs.11 The agnatic heir takes the
10
aL-Gurdabi, M. Bidayatul-Mujtahid Wanihayatul Mugtasid, Darul Fikr Vol. 2, (1975), P. 342
11
Badran, B. Al-Mawarith Wal-Wasiyyah Wal-Hibah, Egypt, (N.D), P. 67
12
Muhammad, A. fathful-Bari,Vol.12, (1402 H), P.8-9
cvii
male agnatic heirs. Asabah bi Nafsihi inherit under the
principle of priority.
13
Suhrawardy, A. and Russell, First steps in Islamic Law in West Africa, I.P.B. Lagos, (1906), P. 110
cviii
brothers occupied the second degree of removal
the first class and the father to the second class. The
14
Ibid P. 111
15
Ibid
16
Khan, S. A. How to calculate inheritance, Good word Books, INDIA, (2005), P. 41
cix
Furthermore, an agnatic heir belonging to the, for
to the praepositus.17
they are in the same degree they will share the residue
son’s son. Both are of the first class but the son is in the
17
Ibid
18
Suhrawwardy, A. and Russel, A. op. Cit. 111
cx
take the whole of the estate, because he excludes the
cxi
4.2 Inheritance Of The Ascendants
soever.
Inheritance Of Father
heir when he co-exists with the son or son’s son how low
21
Abu –Zahra, M. Ahkamu Tarikat Wal, Mawarith, Darul Fikr, (1963), P. 148
22
Ali, A. Y. the Holy Quran Test, Translation and Commentary, The Islamic University of Al-Imam
Mohammed Ibu Sa’ud (1934), Vol. 1, P. 181
cxii
P
F M H D S
1/6 1/6 ¼ R
cxiii
5. The son’s share is 10 x 36000 = N10,000.00
36 1
Total = 36000.00
1/6 plus residue of the estate. The authority comes from the
(S.A.W) and he said; “Give the fixed shares to those who are
23
Abu-Zahra, M. Op. Cit P. 148
24
Al- Jaza’iriyi, A. j. Minhajul Muslim, Darul Fikr, (1976) PP:407-408
25
Ali, A. Y. Op. Cit. P. 181
26
Muhammad, A. Faithful-Bari, Vol. 12 (1402H),P. 9
cxiv
P
D M F
½ x 1/6 1/6 + R
L.C.D, 6:3+1+(1+1)= 6
this situation, the daughter will get 3/6 of the estate. The
father gets 1/6 plus the residue of the estate which equals to
27
Abdulhramid M. Sharhu Rahabbiyyatu Fi’ilmil MAWARITH, (1998), p. 80
28
Badran, B. Al-MAWARITH Wal-Wasiyah Wal-Hibah, Egypt, (N.D), P.29
29
Ali, A, Y. Op. CIT. p. 181
cxv
By virtue of this verse Allah (S.W.T) has fixed the share of
H GS GB M F
½ X X 1/6 R
L.C.D, 6:3 + 0 + 0 + 1 + 2 = 6
For each 6: 3 + 1 + 2 = 6
cxvi
of the Germane brother and sister. The father is a residuary
IJMA of the jurists he steps into the shoes of the father in the
following situations.
31
Rashid, A. Iddatul-Bahith fiahkami Tawarith, Darussalam, Beirtul, (1389H), P. 20
32
Dibawi, M. khilasatu Imul Fara’d, Darul fikr, cairo, (1937) P. 15
33
Gurin, A. M. An Introduction to Islamic Law of Succession Jodda Com, Zaria, (1998), P. 69
34
Siddigi, A. H. Sahih Muslim (English), Beirut, Vol. 3, (N.D), P. 69
35
Assidig, A. M. Masaliku-DALALA, Ala Mas’ili Mutni-Risala, Darul Fikr Cairo, (N.D)P. 334
cxvii
That is agreed upon by all jurists. For example where the
father:
H M FF
½ 1/3 R
L.C.D, 6: 3 + 2 + 1 = 6
Inheritance of mother
36
Adawi, A. Hasiyatu Adawi, (N.D), P. 327
cxviii
“…….. if no children and the parents are the (only heirs,
For example:
P
M 2CB
2CB
1/3 R
½
L.C.D 6:2 + 3 + 1 =6
37
Ali, A. Y. Op. cit. P. 181
38
Al-Qurdabi, M. bidayatul Mujtahid Wanihayatul Mujasid Vol. 2, (1975), P. 342
39
Ali, a. y. op. Cit. P. 181
cxix
or more of them will reduce the mother’s share from 1/3 to
1/6.40
For example:
P
(1)
2CB
M
R
1/6
follows:
(2) P
2GB
M
R
1/6
(3) S
M
R
1/6
40
Attasuli, A. albajatu fi-sharhil tuhfah, wal-Mawarth, (1963), P. 150
cxx
Here the mother inherits 1/6 and son takes the residue of 5/6
of the estate.
P
(4)
GB GS
M
R
1/6
18:3+(15) = 18
18:3+10+5=18
H M F
¼ 1/3R R
L.C.D. 12: 3 + 4 + 5 = 12
41
Abuzahr, M. Abuzahr, M. Ahkamu-Tarikat Wal-Mawarth, (1963), P. 150
cxxi
He then realized that the mother’s share doubled the share of
agnatise the mother. She will still retain her Quranic share of
follows:
H M F
½ 1/3R R
L.C.D, 6: 3 + 1 + 2 = 6
the residue after giving the husband his share and the father
Hence, the mother gets less than the share of the father but
42
Ibid, P. 151
43
Ibid
cxxii
his share will not double her share.44 In the initial example the
W M F
¼ 1/3R
L.C.D, 12: 3 + 4 + 5 = 12
that of the father are compared one will find that the father’s
argued that the law should remain constant and they made
mother 1/3 of the remainder of the estate after giving the wife
W M F
1/4 1/3R R
L.C.D, 12; 3 + 3 + 6 = 12
In the above example, the wife will get 3/12 of the estate,
cxxiii
gets 3/12 of the estate instead of 1/3. The father inherits 6/12
Ibn Abbas, Aliyu Ibn Abi Talib, Mu’azu Bin Jabal (R.A.).47
the link for the uterine brother and sister. But instead of her
together and exclude her partially from 1/3 to 1/6. Last, the
46
Abu-zahra, M. ahkamu-Tarikat Wal-Mawarith, Darul fikr (1963), P. 151
47
Ibid
cxxiv
mother is excluded in the use of Umariyyatan from 1/3 of the
Umariyyatan.
is not from the Holy Quran but from the Sunnah and IJMA of
MM W CB
1/6 ¼ R
48
Gazali, H. Y. Al-Mirathu Ala Mazahibil ARBAH Dirasat Wa Tatbigan, Darul Fikr, (2008), P. 32
cxxv
them 1/6 to share equally.”49 For example; where the
MM FM CB
1/6 R
L.C.D 6: (1) + 5 = 6
12: (2) + 10 = 12
49
Sadig, A. M. Masaliku-Dalala Ala Masa’ili, Mutni Risala (N,.D), P. 344
50
Al-Qurdabiyi, M. Bidayatul Mujtahid Wanihayatul Mugtaasid, Vol. 2, (1975), P. 350
cxxvi
P
1/6 R
L.C.D, 6: (1) + 5= 6
18 :(3)+15 =18
above.52
51
Ibid, P. 351
52
Abu-zahra, M. Ahkamu-Tarikat wal-Mawarith, Darul fikr (1963), P. 168
cxxvii
4.3 Inheritance Of The Descendants
The males are son and son’s son how low soever who are
how low soever is the same. But, the son’s son inherits in the
53
Ibid, P. 131
54
Ibid
cxxviii
Inheritance Of Daughter
4:11 says:
surviving heirs.
For example:
D CB
½ R
L.C.D. 2: 1 + 1 = 2
55
Ali, A. Y. Op. ciT. p. 181
cxxix
Second, two or more daughters inherit 2/3 of the estate
literally means more than two and what is more than two is
cxxx
Prophet (S.A.W) himself gave 2/3 of the estate left by the
Since the Holy Quran gives two third of the estate to two or
58
Al-Khubali, I. Al-Azbul-fa’id sharh UMDATIL-FARID, Vol. 1, (1189H), P. 71
59
Ali, A. Y. Op. Cit. P. 235
60
Buga, M. Arrahabiyyatu fi Ilmil fara’id, Darussalam, (1988), P. 55
cxxxi
P
2D W 2GB
2/3 1/8 R
and the wife’s share is 6/48 and each of the two Germane
share is 1:2. The son agnatizes the daughter whereby the son
takes double share for the daughter. The Holy Quran 4:11
61
Abu-Zahra, M. Ahkamu-Taria ka wal-Mawarith, Darul fikr, (1963), P. 131
cxxxii
says: “Allah has thus enjoined you concerning your children; a
For example:
D S
L. C. D. 3: 1 + 2 = 3
ratio 1:2 = 3. This means the daughter will take 1/3 and the
62
Ali, A. y. OP. Cit. P. 181
63
Dibaw, Kbulasatu Illmul faraid, Daru salam, cairo, (1937), P. 16
cxxxiii
deceased.64 She inherits ½ of the estate when she is alone and
Quran 4:11says:’
the half….”67 For example where the praepositus died and was
SD W GB
½ 1/8 R
L.C.D. 8: 4 + 1 + 3 = 8
takes 1/8 and the German brother takes 3/8 of the estate.
When the shares are added together the total is in unity with
64
Muhammad, A. Faithful –Bari, Darul fikr Vol. 12, (1402H), P. 13
65
Attasuli, A. Albajatu-FI-Sharhil Tuhfa, Darul fikr, Vol. 2, (1951), P. 397
66
Abu-zahra, M. Ahkamu Tarikat wal Mawarith, Darul fikril ARABIYYI, (1963), p. 133
67
Arrashid, A. Iddatul-Bahith fi-Ahkamil-Tawarith, Darul fikr (1389), P. 13
cxxxiv
the original estate (L.C.D). This means the estate is exhausted
by the heirs.68
4:11says:
“If there be more than two daughters they shall have two
husband and father (F). She left net estate of N52000.00, the
2SD H F
2/3 ¼ 1/6
12: 4 + 4 + 3 + 2 = 13
68
Arrashid, A. iddatul-Bahith fi-Ahkamil-Tawarith, Darul fikr (1389), p. 13
69
Ali A.. Y. Op. Cip. 181
70
Buga, M. Arrashabiyyatu fi-Ilmuil-fara’d, Darul Salm, (1988), P. 249
cxxxv
The shares of the heirs will be decreased proportionate to their
4 x 52000 = N16000.00
13 1
13 1
13 1
will apply. The son’s son takes double share for the son’s
71
Ibid
72
Badran B. Al-Mawarith wal-wasiyyah wal-llibah Askandariyyah, Egypt, (N.D), P. 40
cxxxvi
“A male shall inherit twice as much as a female….”73 The
rule of agnatization applies when the male and the female are
F SD SS
I/6 ________________
L.C.D. 6: 1 + (5) = 6
18: 3 + (15) = 18
get 5/18 and the son’s son takes 10/18 all of the estate, which
73
Ali A. Y. Op. Cit. P. 181
74
Al-Maliki, U. Siraju-salik ASHALUL Musalik, Vol. 2, (N.D), P.243
cxxxvii
Abu Musa and Ibn Masud and the HADITH of the Prophet
“Go and ask Ibn Mas’ud who will certainly agree with me.”75
D SD CS
½ X ½
L.C.D. 2: 1 + 0 + 1 = 2
75
Gurin, A. M. An Introduction tom ISLAMIC law of Succesion, Jodda com. PRESS Ltd, (1988), P. 91
cxxxviii
the 2/3 fixed for two or more daughters and the sister takes
D SD CS
½ 1/6 R
L.C.D. 6: 3 + 1 + 2 = 6
This means the daughter will take 3/6 of the estate, son’s
the estate.
76
Abu-zahra, Op. cit. p. 135
cxxxix
exhausted.77 For example, where two daughters, son’s
For example:
P
2D SD F
2/3 x 1/6 + R
L.C.D. 6: (4) + 0 + (1 + 1) = 6
6 : (4) + 2 = 6
This means that the two daughters each will inherit 2/6 and
the father will take 2/6. But the son’s daughter is in fact
son, then she will share with him the residue of the estate.
That the son’s son taking a portion equal to that of two sisters.
daughters (2D), son’s daughter (SD) and son’s son (SS). Under
77
Al-Qurdabi, M.A. Bidayatul-Mujtahid wanihaya tul Mugtashid, Darul fikr Vol 2, (1975), P. 34
78
Sabig, S. Fighussunnah, Darul Fikr, Vol. 3, (1977), P. 435
cxl
such situation, the son’s daughter is lucky to have her brother
2D SD SS
L. C. D. 3: 2 + (1) = 3
son’s daughter is lucky here to get 1/9, the son’s son takes
daughter.
cxli
agnatization.79 For example where praepostius was survived by
two daughters (2D), a son’s daughter (SD) and son’s son’s son
(SSS):
2D SD SSS
L. C. D. 3: (2) + (1) = 3
9 : (6) + (3) = 9
second daughter inherits 1/9 and son’s son’s son takes 2/9
son’s daughter and the son’s son how low soever will have the
79
Khalifa, M. T. A. Ahkamul Mawarith 1400 Mas, Alati Mirathiyyah, Tashmilu Jami’I Halatil Mirath,
Darussalam, (2007), P. 89
80
Ibid
cxlii
fortunate or unfortunate to get something where the
2D F M SD SS
L. C. D. 6: (4) + 1 + 1 + (0) = 6
Here the first daughter gets 2/6, the second gets the
same share, the father takes 1/6 and the mother gets the
81
Ashur, M. Imul Mirath Asraruhu wa al-Fadhuhu wa’amthilatu Mahlulat Ta’arifat Mubsatah, Maktabatul
Qur’an, (1988), P. 68
cxliii
are collaterals to each other. They include Germane brother
discussed here.
WALAD how low soever, the father and the father’s father how
82
Muhammad, A. Fathful Bari, Darul Ihya’l Atturath Al-Arabi, Beirut Vol. 12, (1402H), P. 21
83
Ali, A. Y. Op. Cit. P. 182
cxliv
P
H UB GB
½ 1/6 R
L.C.D. 6: 3 + 1 + 2 = 6
same share could be given to the uterine sister if she was the
84
Adawi, A. Hashiyatu Adawi, Darul Fikr Vol. 2 (N.D). P. 333
85
Ali A. Y. Op. Cit. P. 182
cxlv
P
UB US 2CS
1/3 2/3
6: (2) + (4) = 6
86
Muhammad, A. Faithful-Bari, Darul Ihya’I Vol. 12, (1402H), P. 20
87
Ali, A. Y. Op. Cit. P. 235
cxlvi
By IJMA of the jurists the word children in this verse
refers to males only (son, and son’s son how low soever). This
4:176 says:
88
Amuhammad, A. Op. Cit. P. 21
89
Ibid
90
Arahili, W. Fighul –Islam wa’adillatuhu, Darul fikr, (N.D), P. 320
91
Ali, A. Y. Op. Cit. P. 235
cxlvii
P
2GS 2UB
2/3 1/3
6: (4) + (2) = 6
For each 6: 2 + 2 + 1 + 1 = 6
each of the uterine brothers can take 1/6 of the estate of the
praepositus.
says:
“…….. and if there are brothers and sisters then for the
92
Assabumi, M. A. Al-Mawarith-fishariati Islamiyya Al-dau’il Kitabi Wassaunnah, (N.D.)P. 60
93
Ali, A. Y. Op. Cit. P. 235
cxlviii
P
W GS GB
¼ R
L.C.D. 4: 1 + 1+ 2 = 4
sister.
(S.A.W) and the practical case decided by Abu Musa and Ibn
residuaries”95
1
Adawi, A. Hashiyatu Adawi, Darul, Fikr, Vol. 2, (N.D), P. 330
95
Khalifa, Ahkamul Mawarith, Dar Salam, (2007), P. 173
cxlix
For example where the praepositus is survived by his
daughter son’s daughter and Germane sister and the let estate
D SD GS
½ 1/6 R
L.C.D.6: 3 + 1 + 2 = 6
6 1
6 1
6 1
Total = N96000.00
cl
HIMARIYYAH (A donkey’s case).96 The germane sister also joins
H M 2US GS GB
½ 1/6 ________________________
1/3
L.C.D. 6: 3 + 1 + (2) = 6
24: 12 + 4 + (8) = 24
24: 12 + 4 + 2 + 2 + 2 + 2 = 24
4/12, the two uterines each inheirts 2/24, the Germane sister
96
Abu-Zahra, M. Ahkamu tarikat wal-mawarith, Darul fikrul Arabi, (1963), P. 142
cli
who survivide the deceased peron. He decided the case by
H M 2US GB
½ I/6 1/3 R
L C.D. 6 : 3 + 1+2+0 = 6
inherits 1/6, the two utrine sister inherit 2/6 which is 1/3 of
the estate, but the germane brother is, in fact, excluded totally
clii
P
H M 2US GB
½ 1/6 1/3
L C. D. 6: 3+ 1 + (2) = 6
uterine:
18: 9 + 3 + (6) = 18
cliii
Inheritnace Of Consanguine Sister
absence of her brother and sister (GB and GS), the children of
4:176 says:
sister.
H CS
½ ½
L. C. D. 2: 1 + 1 = 2
97
Ali, A. Y. Op. Cit. P. 235
98
Ibid
cliv
In this case, in the absence of those listed above, the
estate.
2CS US M
L.C.D.6: (4) + 1 + 1 = 6
which is 4/6 of the estate, for each sister 2/6. The uterine
sister takes 1/6 and the mother takes 1/6 of the estate.
99
Ibid
clv
Third, the consanguine sister inheirts as residuary by
for each male be that of two females.100 For example where the
1:2 = 3
H CS CB
½ R
L.C.D 2: 1 + (1) = 2
6: 3 + (3) = 6
For each 6: 3+ 1 + 2 = 6
100
Ibid
clvi
Fourth, consanguine sister inherits as residuary with
sister.
D SD CS
½ 1/6 R
L.C.D 6 3 + 1 + 2 = 6
exists with one germane sister to complete 2/3 fixed for two
101
Sabiq, S. Fighul-Sunnah, Darul fikr Vol. 3. (1984), P. 621
clvii
or more sisters.102 They cannot share the 2/3 equally because
from the case decided by Abu Musa and Ibn Mas’ud.103 For
GS CS 2US
½ 1/6 1/3
L.C.D: 6: 3 + 1 + (2) = 6
For each 6: 3 + 1 + 1 + 1 = 6
sister. Therefore, the former takes ½ from the 2/3 and the
them. The two uterine sisters each will take 1/6 making up
clviii
or more germane sisters.104 For example where the pracpositus
2GS CS 2UB
2/3 X 1/3
For each 6: 2 + 2 + 1 + 1 = 6
104
Sabig, S. Op. Cit P. 621
105
Gurin, A. M. An Introcution to Islamic Law of Succession (Tesate/intestate), Jodda Com. Press, LTD.
(1998), p. 103
clix
P
2GS UB CS CB
2/3 1/6 R
her.106
106
Ibid, P. 104
107
Hussain, A. Islamci of succession, Darrusalam, (2005), P. 307
clx
and consangunie paternal uncles can inherit in the capacity of
agnatic heir. All the other uncles as well as all the aunts are
W GPUN CPUN
¼ R X
L.C.D. 4: 1 + 3 = 4
clxi
Both uncles belong to the same class and stand in the same
110
Alfauzani, S. Attahagigat-Al-Mardiyyah F-Mubahithil, Fardiyyah, (1986), P. 260
111
Ibid
clxii
son’s daughter, son’s son’s daughter and germane brother’s
clxiii
estate or the residue of the estate would be taken to Baitul
Mal. This is, also, the second view of Ibn Abbas which
Arham:
from these sources of law the view that they can inherit
clxiv
he said that angel Jibril informed him that they have no
would prevail.118
116
Ibid
117
Al-FAUZANI, s. Op. Cit. P. 262
118
Ibid
clxv
Following the above reasons, Malikis in support of Zaid
Bn. Thabit’s view held that in the absence of the Quranic and
agnatic heirs the inheritance went into the Baitul Mal. But the
fact allow the Dhawul Arham to inherit. Baitul Mal was held
inherit as follows:
119
Abdul Jawari, A. Usaulul llmil Mawarithu, Kismatit Tarikati bitarikatil Hisabiyyah Wabil Kiradi, Darul
Kutubil Ilmiyyah, (1988), P. 46
120
Gurin, A. M. An Introduction to Islamic Law of Succession, Jodda Press (1998), P. 68
clxvi
what their parents and kinsmen leave; whether it is
ii. “…… And according to the Book of Allah, those who are
121
Ali, A. Y. Op. Cit. P. 180
122
Ibid P. 435
123
Ibid, P. 1104
124
Khubali, I. Al-Azul faid sharha Umdatu farid, Darul fikr, Vol. 2 (1999), P. 22
clxvii
sunnah and it is the authority for the inheritance of Dhawul
Sahal Ibn Hanif that one man shot another with an arrow
125
Akubali, I. Al-Azbul fa’id sharb Umdati farid, Daru Kutubi Llmiyyah Vol. 2 (1999) P. 22
clxviii
they cannot inherit (as cited by Maliki’s above) indicates
Dhawul Arham have two links (i.e. Islam and blood ties),
126
Sabuni, M. Mawarith fi shariati Islmaiyyah Ala Dau’Kitab Wassunah, (N.D), P. 148
127
Khubali, I. Al-Azbul fa’id sharh Umdatul farid, Darul fikr, Vol. 2 (1999), P. 19
128
Ibid
clxix
they out-weight the arguments of the opposition. Hanafis were
Malikis have not cited authorities except one Hadith but relied
near and remote; males and females relatives are treated with
clxx
Mubashirin. The doctrine is not popular; hence, its application
Dhawul Arham.131
129
Lakhvri, Op. Cit. P. 137
130
Gazali, H. Y. Op. Cit. P. 309
131
Muhammad, Y. Certain Aspects of the Law of Succession Affecting Women in Northern, Nigeria,
Jorunal of the centre of Islamic Legal Studies, A.B.U, Zaria, Vol. 1 No. 1, (N.D), P. 36
clxxi
The third doctrine is Ahlul – Tanzil, under this doctrine
the whole of the estate. They have also agreed that spouse
and Dhawul Arham inherit the residue of the estate. But they
clxxii
praepostitus. For purpose of their inhertiance the jurists of
exclude those who are more remote to him. For example where
D S
S S
S D
134
Ibid, P. 20
clxxiii
Another example is where the praepositus was survived
daughter.
be applicable.
D D
D D
S D
The ratio is 2: 1 = 3
135
Lakhvi, S. H. A. Al-Mirath, Justice of Islam In The Rules Of Inheritance, Kano – Nigeria, (2003), p. 139
clxxiv
them. Consequently the share of each mother goes to her
link to the legal heir or has a link but with intermediary to the
School.
be considered but not the links even the links to the legal
heirs are many. The sides from which the surviving Dhawul
of different sexes but their children are not many with many
136
Khubali, I. Op. Cit. P. 20
137
Ibid P. 21
138
Khubali, I. Op. Cit. p. 31
clxxv
sides, the estate would be distributed by considering the sex of
the links to the surviving heirs. And then their shares be given
daughter.
will take 2/3. Thus the DD Share of 1/3 will go to her son
139
Ibid
140
Ibid, P. 32
141
Ibid, P. 32
clxxvi
daughter by taking the share of their respective grand
mothers.142
mother’s side and whether he has direct link to the legal heir
142
Rashid, A. Iddatul Bathitgh fi- Ahkami Tawarith, Darul, fikr (1389H), P. 45
143
Lakhvi, H. A. Op. P. 139
clxxvii
P
F M
M F
M M
excludes grandmother.144
that in all cases of Dhawul– Arham the one nearer to the legal
heir of the praepositus will be given priority over the one who
is more remote.145
144
KhUBALI, i. Al-Azbul faid sharh, Umdatul farid, Vol. 2 (1999), P. 20
145
Ibid, P. 21
clxxviii
Another example is where the praepositus was survived
thus:
F M
M M
F M M
M F F
into three (3). 2/3 of the estate will be given to those coming
through the father of the deceased and 1/3 to those from the
LC.D 3: (2) + 1 = 3
9: (6) + 3 = 9
9: 4 + 2 + 3 = 9
146
Badran, B. Mawarith Wal-Wasiyyah wal-Hibah fi shariatil Ilamiyyati, DARULSDALAM, (N.D), P. 79
clxxix
= FMFM will inherit 4/9 of the estate.
147
Gazali, OP. Cit. P. 330
clxxx
inheritance of Dhawul – Arham under this category are better
EXAMPLE 1:
GB UB
S D
clxxxi
5/6 of the estate.150 Therefore uterine brother’s daughter will
EXAMPLE II
CB CS
S D
D S
150
Ibid
151
Khubali’l I. Al-Azulfa’d sharh Umdatu farid, Vol. 2 (1999), P. 20
152
Ibid
clxxxii
Ahlul –Tanzil gave only one reason that is CBSD is nearer
EXAMPLE III
UB US
S D
D S
Therefore UBSD will take 1/3 and USDS will take 2/3 of the
estate.
153
Badran, B. Mawarith wal-wasiyyah wal Hibah fi-shariatil Islamiyyati,Mawarith wal-wasiyyah wal
Hibah fi-shariatil Islamiyyati Darusalam (N.D), P. 82
154
Ibid
clxxxiii
½ of the estate as Quranic and the return shares. The USDS
EXAMPLE IV:
GB CB UB
S S S
D D D
155
Khubali, Op. Cit. P. 21
156
Ibid
clxxxiv
agnatic heir inherits together with the child of Dhawul Arham
EXAMPLE V:
CB CS GS US
D S D S
S 2D
157
Badran, B. Mawarith wal-wasiyyah wal Hibah fi Shariatil Islamiyyati, (n.d), p. 83
158
Ibid, P. 84
159
Khubali, I. Op. Cit. P. 21
clxxxv
P
CB CS GS US
_________________
R 2/3 1/6
L.C.D. 6: (1) + 4 + 1 = 6
24: (4) + 16 + 4 = 24
24: 2 + 2 + 16 + 4 = 24
24: 2 + (2 + 16) + 4 = 24
24: 2 + (18) + 4 = 24
24: 2 + 9 + 9 + 4 = 24
daughter of CSS and GSD will take 9/24 of the estate the total
160
Ibid
clxxxvi
of which is 18/24 of the estate. And USSD will get 4/24 of the
estate.
2 : 1 = 3 P
CB CS GS US
______________________
R ½ 1/6
L.C.D 6: (2) + 3 + 1 = 6
18: (6) + 9 + 3 = 18
18: 4 + 2 + 9 + 3 = 18
18:4 + (2 + 9) + 3 = 18
18: 4 + (11) + 3 = 18
36: 8 + (22) + 6 = 36
36: 8 + 11 + 11 + 6 = 36
clxxxvii
Therefore CBDS will inherit 8/36 of the estate CSS2D
and GSD2D each will get 11/36 of the estate which will be
soever.162
exclude those from any lower category. And those coming from
the same category the one with full blood exclude the one with
half blood. Those from the same category but not of the same
161
Khubali, I. Al-Azbul fa’d sharh Umdatul farid, Vol. 2. (1999), P. 53
162
Gazali, H. Y. Op. Cit. P. 348
clxxxviii
degree of removal, the one who is nearer to the deceased
person exclude the one who is too remote.163 The examples will
aun.164 Thus:
2/3 X X
163
Aliyu A. Fathul Bari, Darusalam, Vol. 2, (1348H), P. 24
164
Badran, B. Mirath wal Wasiyyah wal Hibah fi-shariuati Islamiyyati, (N.D), P. 83
165
Ibid
clxxxix
P
½ 1/6 ________________
1/3
L.C.D. 6: 3 + 1 + (2) = 6
6: 3 + 1 + (2) = 6
6: 3 + 1 + 1 + 1 = 6
get 1/6 of the estate, PUUN will take 1/6 of the estate and
estate will be shared among them equally. And where there are
166
Khubali, I. Op. Cit. P. 54
cxc
P
the maternal uterine aunt will inherit 1/3 of the estate. And
______________ X X _____________
1/3 R
167
Ibid
cxci
LC.D. 3: (1) + (2) = 3
6: (2) + (4) = 6
6: 1 + 1 + 2 + 2 = 6
This means MUUN will inherit 1/6 the same share will go
same share.
_______________ X X _________________
1/3 R
9: (3) + (6) = 9
9: 2 + 1 + 4 + 2 = 9
168
Ibid, P. 53
cxcii
This means MUUN will inherit 2/9; MUAU will inherit
1/9; MGUN will inherit 4/9 and MGAU will inherit 2/9 of the
estate.
be divided into three. The paternal side will take 2/3 and the
______________________ _________________________
2/3 1/3
3: (2) + (1) = 3
6: (4) + (2) = 6
6: 2 + 2 + 1:1 = 6
This means that the PUUN and PUAU will inherit 2/6 each.
169
Zahili, W. Op. Cit. 397
cxciii
However, according to Hanafi and Shafi’i schools the rule
_______________________ __________________
2/3 1/3
3: (2) + (1) = 3
9: (6) + (3) = 9
9: 4 + 2 + 2+1 = 9
All the above legal heirs are heirs of the inner and outer
heirs of the inner and outer circles of family but also the form
170
Badrar, B. Op. Cit. P. 83
cxciv
of exclusion which affected the shares of the legal heirs. Such
daughter from ½ to 1/6 and the son excludes the son’s son
cxcv
CHAPTER FIVE
5.1 Summary
will be discussed.
religions.
cxcvi
inheritance under Islamic law which provides ground of
provisions for the shares of the heirs of inner and outer circles
proffered.
heirs of inner and outer family. The work divided the heirs into
cxcvii
shares given reasons and authority concerning the inheritance
5.2 Observation
we observe as follows;
cxcviii
the law.
cxcix
Where there are more than one house, the custom may
5.3 Recommendation
follows:
cc
recommendation that when appointing lower court
and Radd.
cci
4. With regard to the fourth observation it is our humble
and the learned jurists in our society. Islamic law has not
ccii
Moreover, as Muslims we must believe that Allah created
cciii
Finally, the students, lawyers, judges, all concerned and
warning because one day people will lack the true knowledge
cciv
BIBLIOGRAPHY
ccv
Dasugi, ShamsAl-Deen Muhammad Bin Arfa, Hashiya al-
Dasugi ala Al-Sharh Al-Kaseer, Cairo (N.D.)
ccvi