"When there are no
children, grandchildren through sons have the same position as
children, so that grandsons are like sons and grand-daughters are like
daughters. They inherit as they inherit and they overshadow as they
overshadow. If there are both children and grandchildren through sons,
and there is a male among the children, then the grandchildren through
sons do not share in the inheritance with him.
"If there is
no surviving male among the children, and there are two or more
daughters, the granddaughters through a son do not share in the
inheritance with them unless there is a male who is in the same
position as them in relation to the deceased, or further than them.
His presence gives access to whatever is left over, if any, to whoever
is in his position and whoever is above him of the granddaughters
through sons. If something is left over, they divide it among them,
and the male takes the portion of two females. If nothing is left
over, they have nothing.
"If the only descendant is a
daughter, she takes half, and if there are one or more grand-daughters
through a son who are in the same position to the deceased, they share
a sixth. If there is a male in the same position as the granddaughters
through a son in relation to the deceased, they have no share and no
sixth .
"If there is a surplus after the allotting of shares
to the people with fixed shares, the surplus goes to the male and
whoever is in his position and whoever is above him of the female
descendants through sons. The male has the share of two females. The
one who is more distant in relationship than grandchildren through
sons has nothing. If there is no surplus, they have nothing. That is
because Allah, the Blessed, the Exalted, said in His Book, 'Allah
charges you about your children that the male has the like of the
portion of two females. If there are more than two women they have two
thirds of what is left. If there is one, she has a half.' (Sura 4 ayat
10)
"The
inheritance of a mother from her child, if her son or daughter dies
and leaves children or male or female grandchildren through a son, or
leaves two or more full or half siblings is a sixth. If the deceased
does not leave any children or grandchildren through a son, or two or
more siblings, the mother has a whole third except in two cases. One
of them is if a man dies and leaves a wife and both parents. The wife
has a fourth, the mother a third of what remains, (which is a fourth
of the capital). The other is if a wife dies and leaves a husband and
both parents. The husband gets half, and the mother a third of what
remains, (which is a sixth of the capital). That is because Allah, the
Blessed, the Exalted, says in His Book, 'His two parents each have a
sixth of what he leaves if he has children. If he does not have
children, and his parents inherit from him, his mother has a third. If
he has siblings, the mother has a sixth.' (Sura 4 ayat 11). The sunna
is that the siblings be two or more."
"If the deceased does not leave a father or a paternal grandfather or
children or male or female grandchildren through a son, a single full
sister gets a half. If there are two or more full sisters, they get
two thirds. If there is a brother with them, sisters, whether one or
more, do not have a fixed share. One begins with whoever shares in the
fixed shares. They are given their shares. Whatever remains after that
goes to the full siblings. The male has the portion of two females
except in one case, in which the full siblings have nothing. They
share in this case the third of the half-siblings by the mother. That
case is when a woman dies and leaves a husband, a mother, half-
siblings by her mother, and full siblings. The husband has a half. The
mother has one sixth. The half-siblings by the mother have a third.
Nothing is left after that, so the full siblings share in this case
with the half-siblings by the mother in their third. The male has the
portion of two females in as much as all of them are siblings of the
deceased by the mother. They inherit by the mother. That is because
Allah, the Blessed, the Exalted, said in His Book, 'If a man or a
woman has no direct heir and he has a brother or a sister, each one of
the two gets a sixth. If there are more than that, they share equally
in the third. ' (Sura 4 ayat 12) . They therefore share in this case
because all of them are siblings of the deceased by the mother."
Malik said, "If there are both full
siblings and half-siblings by the father and there is a male among the
full siblings none of the half-siblings by the father have any
inheritance. If there is one or more females in the full siblings and
there is no male with them, the one full sister gets a half, and the
half sister by the father gets a sixth, completing the two-thirds. If
there is a male with the half-sisters by the father, they have no
share. The people of fixed shares are given their shares and if there
is something left after that it is divided between the half-siblings
by the father. The male has the portion of two females. If there is
nothing left over, they get nothing. If the full siblings consist of
two or more females, they get two-thirds, and the half-sisters by the
father get nothing with them unless there is a half-brother by the
father with them. If there is a half-brother by the father with them,
the people of fixed shares are given their shares and if there is
something left over after that, it is divided between the half-
siblings by the father. The male gets the portion of two females. If
there is nothing left over, they get nothing. Half-siblings by the
mother, full-siblings, and half-siblings by the father, each have a
sixth (when they are onlyone). Two and more share a third. The male
has the same portion as the female. They are in the same position in
it."
Malik said,
"When someone shares with the grandfather and the full siblings in a
specified share, one begins with whoever shares with them of the
people of fixed shares. They are given their shares. What is left over
after that belongs to the grandfather and the full siblings. Then one
sees which is the more favourable of two alternatives for the portion
of the grandfather. Either a third is allotted to him and the siblings
to divide between them, and he gets a share as if he were one of the
siblings, or else he takes a sixth from all the capital. Whichever is
the best portion for the grandfather is given to him. What is left
after that, goes to the full siblings. The male gets the portion of
two females except in one particular case. The division in this case
is different from the preceding one. This case is when a woman dies
and leaves a husband, mother, full sister and grandfather. The husband
gets a half, the mother gets a third, the grandfather gets a sixth,
and the full sister gets a half. The sixth of the grandfather and the
half of the sister are joined and divided into thirds. The male gets
the share of two females. Therefore, the grandfather has two thirds,
and the sister has one third."
Malik said, "The inheritance
of the half-siblings by the father with the grandfather when there are
no full siblings with them, is like the inheritance of the full
siblings (in the same situation). The males are the same as their
males and the females are the same as their females. When there are
both full siblings and half-siblings by the father, the full siblings
include in their number the number of half-siblings by the father, to
limit the inheritance of the grandfather, i.e., if there was only one
full sibling with the grandfather. They would share, after the
allotting of the fixed shares, the remainder of the inheritance
between them equally. If there were also two half-siblings by the
father, their number is added to the division of the sum, which would
then be divided four ways. A quarter going to the grandfather and
three-quarters going to the full siblings who annex the shares
technically allotted to the half-siblings by the father. They do not
include the number of half-siblings by the mother, because if there
were only half-siblings by the father they would not inherit anything
with the grandfather and all the capital would belong to the
grandfather, and so the siblings would not get anything after the
portion of the grandfather.
"It belongs to the full siblings
more than the half-siblings by the father, and the half-siblings by
the father do not get anything with them unless the full siblings
consist of one sister. If there is one full sister, she includes the
grandfather with the half-siblings by her father in the division,
however many. Whatever remains for her and these half-siblings by the
father goes to her rather than them until she has had her complete
share, which is half of the total capital. If there is surplus beyond
half of all the capital in what she and the half-siblings by the
father acquire it goes to them. The male has the portion of two
females. If there is nothing left over, they get nothing."
Malik said, "The
generally agreed on way of doing things among us in which there is no
dispute and which I saw the people of knowledge in our city doing, is
that the maternal grandmother does not inherit anything at all with
the mother. Outside of that, she is given a sixth as a fixed share.
The paternal grandmotherdoes not inherit anything along with the
mother or the father. Outside of that she is given a sixth as a fixed
share." If both the paternal grandmother and maternal grandmother are
alive, and the deceased does not have a father or mother outside of
them, Malik said,."I have heard that if the maternal grandmother is
the nearest of the two of them, then she has a sixth instead of the
paternal grandmother. If the paternal grandmother is nearer, or they
are in the same position in relation to the deceased, the sixth is
divided equally between them."
Malik said, "None of the
female grand-relations except for these two has any inheritance
because I have heard that the Messenger of Allah, may Allah bless him
and grant him peace, gave the grandmother inheritance, and then Abu
Bakr asked about that until someone reliable related from the
Messenger of Allah, may Allah bless him and grant him peace, that he
had made the grandmother an heir and given a share to her. Another
grandmother came to Umar ibn al-Khattab, and he said, 'I am not one to
add to fixed shares. If there are two of you together, it is between
you. If either of you is left alone with it, it is hers.' " Malik
said, "We do not know of anyone who made other than the two
grandmothers heirs from the beginning of Islam to this day."
Malik said, "The
generally agreed on way of doing things among us, in which there is no
dispute, and which I saw the people of knowledge in our city doing, is
that the person who leaves neither parent or offspring can be of two
types. As for the kind described in the ayat which was sent down at
the beginning of the Surat an-Nisa in which Allah, the Blessed, the
Exalted! said, 'If a man or a woman has no direct heir, but has a
brother or a sister by the mother, each of the two has a sixth. If
there are more than that, they share equally in a third.' (Sura 4 ayat
12) This heirless one does not have heirs among his mother's siblings
since there are no children or parents. As for the other kind
described in the ayat which comes at the end of the Surat an-Nisa,
Allah, the Blessed, the Exalted, said in it, 'They will ask you for a
decision. Say, "Allah gives you a decision about the indirect heirs.
If a man perishes having no children, but he has a sister, she shall
receive a half of what he leaves, and he is her heir if she has no
children. If there are two sisters, they shall receive two-thirds of
what he leaves. If there are brothers and sisters, the male shall
receive the portion of two females. Allah makes clear to you that you
might not go astray. Allah has knowledge of everything" ' " (Sura 4
ayat 176).
Malik said, "If this person without direct heirs
(parents) or children has siblings by the father, they inherit with
the grandfather from the person without direct heirs. The grandfather
inherits with the siblings because he is more entitled to the
inheritance than them. That is because he inherits a sixth with the
male children of the deceased when the siblings do not inherit
anything with the male children of the deceased. How can he not be
like one of them when he takes a sixth with the children of the
deceased? How can he not take a third with the siblings while the
brother's sons take a third with them? The grandfather is the one who
overshadows the half-siblings by the mother and keeps them from
inheriting. He is more entitled to what they have because they are
omitted for his sake. If the grandfather did not take that third, the
half-siblings by the mother would take it and would take what does not
return to the half-siblings by the father. The half-siblings by the
mother are more entitled to that third than the half-siblings by the
father while the grandfather is more entitled to that than the half-
siblings by the mother."
Malik said, "Everything about which you are
questioned concerning the inheritance of the paternal relations is
like this. Trace the genealogy of the deceased and whoever among the
paternal relations contends for inheritance. If you find that one of
them reaches the deceased by a father and none of them except him
reaches him by a father, then make his inheritance to the one who
reaches him by the nearest father, rather than the one who reaches him
by what is above that. If you find that they all reach him by the same
father who joins them, then see who is the nearest of kin. If there is
only one half-brother by the father, give him the inheritance rather
than more distant paternal relations. If there is a full brother and
you find them equally related from a number of fathers or to one
particular father so that they all reach the genealogy of the deceased
and they are all half-brothers by the father or full brothers, then
divide the inheritance equally among them. If the parent of one of
them is an uncle (the full-brother of the father of the deceased) and
whoever is with him is an uncle (the paternal half brother of the
father of the deceased), the inheritance goes to the sons of the full
brother of the father rather than the sons of the paternal half-
brother of the father. That is because Allah, the Blessed, the
Exalted, said, 'Those related by blood are nearer to one another in
the Book of Allah, surely Allah has knowledge of everything.' "
Malik said, "The paternal grandfather, is more entitled to inherit
than sons of the full-brother, and more entitled than the uncle, the
full brother of the father. The son of the father's brother is more
entitled to inherit from mawali retainers (freed slaves) than the
grandfathers."
Malik said, "The woman who is the
furthest relation of the deceased of those who were named in this
book, does not inherit anything by her kinship, and women do not
inherit anything apart from those that are named in the Qur'an. Allah,
the Blessed, the Exalted, mentioned in His Book the inheritance ofthe
mother from her children, the inheritance of the daughters from their
father, the inheritance of the wife from her husband, the inheritance
of the full sisters, the inheritance of the half-sisters by the father
and the inheritance of the half-sisters by the mother. The grandmother
is made an heir by the example of the Prophet, may Allah bless him and
grant him peace, made about her. A woman inherits from a slave she
frees herself because Allah, the Blessed, the Exalted, said in His
Book, 'They are your brothers in the deen and your mawali.' "
Malik said, "If a pregnant woman comes from
the land of the enemy and gives birth in arab land so that he is her
(an arab) child, he inherits from her if she dies, and she inherits
from him if he dies, by the Book of Allah."
Malik said, "The
generally agreed on way of doing things among us and the sunna in
which there is no dispute, and what I saw the people of knowledge in
our city doing, is that a Muslim does not inherit from a kafir by
kinship, clientage (wala'), or maternal relationship, nor does he (the
Muslim) overshadow any (of the kafirs) from his inheritance.
Malik said, "Similarly, someone who forgoes his inheritance when he is
the chief heir does not overshadow anyone from his inheritance."
Malik said, "That is
the way of doing things about which there is no dispute, and which
none of the people of knowledge in our city doubt. The procedure with
two mutual heirs who are drowned, or killed in another way, when it is
not known which of them died first is the same - neither of them
inherits anything from his companion. Their inheritance goes to
whoever remains of their heirs. They are inherited from by the
living."
Malik said, "No one should inherit from anyone else
when there is doubt, and one should only inherit from the other when
there is certainty of knowledge and witnesses. That is because a man
and his mawla whom his father has freed might die at the same time.
The sons of the free man could say, 'Our father inherited from the
mawla.' They should not inherit from the mawla without knowledge or
testimony that he died first. The living people most entitled to his
wala' inherit from him."
Malik said, "Another example is two
full brothers who die. One of them has children and the other does
not. They have a half-brother by their father. It is not known which
of them died first, so the inheritance of the childless one goes to
his half-brother by the father. The children of the full-brother get
nothing."
Malik said, "Another example is when a paternal
aunt and the son of her brother die, or else the daughter of the
brother and her paternal uncle. It is not known which of them died
first. The paternal uncle does not inherit anything from the daughter
of his brother, and the son of the brother does not inherit anything
from his paternal aunt."
Malik said, "I
heard the same as that from Sulayman ibn Yasar."
Malik said,
"That is what I saw the people of knowledge in our city doing."