وَصِيَّةٍ

4:177.

Important Words:

ابویه (his parents) is really ابوینه, the letter ن being dropped owing to اضافة. The word ابوین is the genitive of ابوان which is the dual form of اب which is originally ابو meaning, father or grandfather or any male ancestor or paternal uncle. ابوانliterally meaning "two fathers" signifies "father and mother" (Lane).

ولد (child) is very general in its significance meaning: (1) a child, son, daughter or a young one; (2) children, sons, daughters, offspring or young ones. Thus the word is used both as singular and plural, feminine and masculine (Lane).

Commentary:

This and the succeeding verse combined with the last verse of the Surah give the Islamic law of inheritance in a nutshell.

Islam prescribes suitable shares for all near relatives in the property of a deceased person without distinction of sex or order of birth. Children, parents, husbands and wives are the principal heirs who, if alive, get suitable shares in all circumstances, other relations having a title only in special cases. A male has been given double the share of a female because he has been made responsible for the maintenance of the family (Ma‘ani, vol. ii, p. 32).

The Islamic law of inheritance is perfect and it safeguards against all evils that result from laws prescribed by, or in vogue in, other faiths and communities. It aims at a fair distribution of wealth and equal chances of progress for all. To give the property of a deceased parent to the firstborn son only or to exclude the female members from inheritance or to disinherit parents in the presence of children has proved a veritable curse for society in many ways—moral, social and economic. The Islamic law of inheritance, reinforced by the system of Zakah (prescribed alms) and by the injunction prohibiting the giving and taking of interest, provides a golden mean between capitalism and communism—the two evil extremes of the present-day economic system.

The verse begins by laying down a general rule as to the proportion of shares between sons and daughters. A son is to have as much as two daughters. So wherever there are both sons and daughters, this rule will come in force. When, however, there are only daughters and no son, the verse allots two-thirds of the legacy to the daughters if there are more than two of them, and one-half if there is only one. The share of daughters, in case there are two, is not expressly stated. But the use of the conjunction فا (but) in the clause, but if there be females only, numbering more than two, clearly points to the fact that the share of two females has been referred to in the preceding words "two females". Moreover, the share of two females can be gathered from what has already been said in the beginning of the verse about the ratio between the shares of the males and the females. According to that ratio, a son is to get as much as two daughters. Thus, if there be one son and one daughter, the son will have two-thirds. But as the share of one son has been made equal to that of "two daughters", the latter, in case there is no son, will have two-thirds, viz., the same share as has been expressly fixed for three daughters. Thus, the very construction of the verse shows that if there be two daughters and no son, they too, as in the case of three daughters, will get two-thirds. If it had not been the object of the Quran to point to the share of two daughters in the clause, it would have been something like this, "a male shall have twice as much as a female", and not as it is now.

The above meaning is corroborated by a saying of the Holy Prophet himself. It is related that when a Companion of the Holy Prophet named Sa‘d bin Rabi‘ah died in the Battle of Uhud, leaving two daughters and one widow, his brother took away the whole property, leaving nothing for the two daughters. Thereupon the widow of Sa‘d went to the Holy Prophet and said, "Here are the two daughters of Sa‘d. Their uncle has taken the whole of his property and has left nothing for them." The Holy Prophet told her to wait till God should decide the matter. Then this verse was revealed and the Prophet called upon Sa‘d’s brother to give two-thirds of Sa‘d’s property to his two daughters and one-eighth to their mother and keep the rest for himself (Tirmidhi & Dawud).

The verse speaks of three cases as regards the share of the parents: (1) If a person dies leaving one or more children, then each of his parents shall have one-sixth; (2) If a person dies issueless and his parents are the sole heirs (there being no wife or husband of the deceased person), then the mother will have one-third of the property and the remaining two-thirds will go to the father; (3) There is a third case, which is really an exception to the second case. A man dies without issue and his parents are his sole heirs, but he has brothers or sisters. Then, although his brother or sisters will not inherit from him, yet their presence will affect the share of the parents, for, in this case, the mother will have one-sixth (instead of one-third, as in the second case) and the remaining five-sixths will go to the father. The reason why the father is awarded a larger share in this case is that the father has also to support the brothers or sisters of the deceased. The subject of inheritance is continued in the succeeding verse.

4:177.

Important Words:

کلالة (one who has neither parent nor child) is derived from کل i.e. he was or became fatigued, tired or wearied and could proceed no further; he was or became one having no child and no parent, the latter meaning being based on the former, as a person having no child or parent becomes, as it were, too fatigued for the racial march. کلالة is (1) a person who leaves behind neither father nor child, male or female; or (2) a person who leaves behind neither father nor son. According to Ibn ‘Abbas, کلالة is a person who leaves no son irrespective of the fact whether his father is living or not. This would thus be the third meaning of کلالة (Lane, Aqrab & Mufradat).

Commentary:

The first part of this verse determines the share of the husband and the wife in inheritance and needs no comment. The latter part deals with the case of a Kalalah, i.e. one who leaves neither parent nor child and whose property is inherited by his or her brother and sister. Now, if there is only one brother and one sister, each of them will get one-sixth. But if they are more than that, they will be sharers in one-third.

It should, however, be noted that in this respect brothers and sisters fall under three heads; firstly, real brothers or sisters, offspring of the same parents (such brothers or sisters are technically known as اعیانی a‘yani); secondly, brothers and sisters on the side of the father only (these are technically known as علاتی ‘allati); thirdly, brothers and sisters on the side of the mother only, their father being not the same as that of the deceased (such brothers and sisters being technically called اخیافی akhyafi). It is to the last-mentioned class that the commandment given in the present verse pertains; the law with regard to the first two classes of brothers and sisters being given in the last verse of this Surah.

The reader will further note that the shares allotted to the brothers and sisters of the last-mentioned class are smaller than those allotted to the brothers and sisters of the first two classes, the reason being that the brothers and sisters of this class are on the side of the mother only, while the brothers and the sisters of the other two classes are the children of the same father as the deceased.

It is also noteworthy that in the property of a person who dies as a Kalalah, as mentioned in the present verse, both brothers and sisters have equal shares, the usual ratio of two to one not being observed in their case.

The words, "without prejudice to the debt", are important. They mean that the payment of debts should not suffer by the payment of bequests. In other words, debts are to be paid prior to the payment of bequests. It was in compliance with this Quranic injunction that the Holy Prophet used to have the debts paid before the payment of bequests. The rights of other people must be safeguarded before any bequest made by the deceased is complied with. So strict was the Holy Prophet in these matters that he refused to perform the funeral service of the man whose debts were likely to remain unpaid.

It may incidentally be noted here that heirs are divided into two main groups:

1. ذووالفرائض (Dhawul-Fara’id), i.e. persons to whom Islam allots a fixed and definite share (1/2, 1/4, 1/8, 2/3, 1/3 or 1/6), or in the estate of a deceased person.

2. عصبات (‘Asabat), i.e. the heirs who receive the residue after the Dhawul-Fara’id have received their allotted shares.

It is, however, not necessary that a member of the first group should always remain a Dhul-Faridah. In certain cases, he may be both a Dhul-Faridah (sharer) and an ‘Asaba (residuary) and in other cases he may be simply an ‘Asaba.

The Dhawul-Fara’id (sharers) are 12 in number, four males and eight females. The males are: 1. father, 2. paternal grandfather, 3. husband and 4. half-brother on the maternal side. The females are: (1) daughter, (2) son’s daughter, (3) mother, (4) wife, (5) full sister, (6) half-sister on paternal side, (7) half-sister on maternal side, and (8) grandmother whether paternal or maternal.

The ‘Asabat (residuaries) are of four kinds: (1) ascendants of the deceased, i.e. father, paternal grandfather, etc. (2) descendants of the deceased, i.e. son, son’s son, etc. (3) descendants of the father of the deceased, i.e. full brother, brother’s son, etc. (4) descendants of the grandfather, i.e. full paternal uncle, paternal uncle’s son, etc.