Topic: Will (Wasiyyat)
View Aspects
كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ ٱلْمَوْتُ إِن تَرَكَ خَيْرًا ٱلْوَصِيَّةُ لِلْوَٰلِدَيْنِ وَٱلْأَقْرَبِينَ بِٱلْمَعْرُوفِ ۖ حَقًّا عَلَى ٱلْمُتَّقِينَ
4:12, 13, 177; 5:107.
4:12,13经文注定了对所有应该继承死者产业的那些人的分配份额。这些经文被有些注经家误解为废止本节经文的, 实际上本节经文对遗产继承权制订了一条附加而且十分必要的规定, 这种遗产仅指有利于在法律上不该分得遗嘱的遗产的人, 或是出于慈善目的, 或由于战争状况的遗产。它不指有利于合法继承者的遗产, 关于那种遗产在4:12,13中业已述及。因此本节经文为制定遗赠规章的几节经文所废止的问题是不应发生的, 而且那几节经文也承认任何遗产的合法性。是以每一节经文都在自己的范围内起其一定的作用而且相辅相成。所以这样所规定的遗产, 根据萨德•彬•阿比•瓦卡斯 (سَعْد بِنْ اَبِیْ وَقَاص, Sa‘d bin Abi Waqqas) 的见解, 像穆圣在讲话中所提到的那样, 不应超过所留产业的三分之一 (Bukhari, Kitabul-Jana’iz); 这是立遗嘱者可以行使自由支配的处理权的最高限制, 不过这种遗产继承权只有那留下像خَيْر (Khair, 许多财富) 这词所表示的大笔财产者
才能使用。根据经文5:107, 一个将死的穆斯林可以规定遗产。一般的看法, 这节经文是在4:12, 13之后下降的; 这进一步支持了这个看法, 事实上, 本节没有被4:12, 13所代替。一切经文废止的说法是没有根据的。
خَیْر کے معنے مطلق مال کے بھی ہوتے ہیں اور بہت سے مال کے بھی۔ اس جگہ آیت کے سیاق و سباق سے ظاہر ہوتا ہے کہ مالِ کثیر مراد ہے۔
یہاں والدین اور اقربین کو وصیت کرنا کہا ہے حالانکہ اولاد قلبی تعلقات کے لحاظ سے نہایت اہم ہے اس سے معلوم ہوتا ہے کہ یہ مال کی تقسیم کی وصیت نہیں ورنہ اولاد کا ذکر ضرور ہوتا۔ بلکہ وصیت سے مراد عام تاکید ہے کہ احکامِ الٰہیہ کے مطابق جائیداد تقسیم کی جائے۔ اور اگر مال کا کوئی حصہ صدقہ کرنا ہو تو اس کا اظہار کردے۔ اس آیت پر بہت بحث ہوئی ہے۔ اکثر مفسرین اسے منسوخ قرار دیتے ہیں کیونکہ اس میں وصیت واجب لکھی ہے اور احکام وراثت کے نزول کے بعد رشتہ داروں کے نام وصیت جائز نہیں۔ اور جنہوں نے جائز قرار دی ہے ان کے نزدیک بھی واجب نہیں‘ مگر یہ غلطی اس وجہ سے لگی ہے کہ وصیت کے معنے
4:12, 13, 177; 5:107.
Verses 4:12, 13 fix the shares of all those persons who should succeed to a deceased person’s property. These verses have been mistakenly understood by some Commentators to abrogate the verse under comment, which, in fact, lays down an additional and very necessary provision, and refers only to bequests made in favour of individuals not legally entitled to a share in the testator’s property, or for charitable purposes, or for war conditions. It does not refer to bequests made in favour of legal heirs which subject has been dealt with in 4:12, 13. There is no question, therefore, of the abrogation of this verse by those verses which lay down the rules of inheritance and also recognise the validity of any bequests that may have been made. Each operates in its own sphere and draws strength from the other. The bequests thus made, however, should not exceed one third of the property left as is mentioned in a saying of the Holy Prophet related by Sa‘d bin Abi Waqqas (Bukhari, Kitabul-Jana’iz); thi
4:12, 13, 177; 5:107.
Important Words:
خیر (much wealth) means: (1) good as opposed to evil; (2) wealth acquired or collected by fair and praiseworthy means; (3) much wealth or abundance of wealth; (4) a thing that all desire; (5) welfare and good fortune (Mufradat); (6) the existence of a thing in abundance and perfection; (7) horses, etc. (Aqrab).
حقا (obligation) is derived from حق and has been used in the verse in the accusative case, having something understood before it, the complete expression being حق ذالك حقا (Kashshaf). الحق means: (1) equity or justice; (2) right mode of acting; (3) an obligation or a duty; (4) a debt or anything that is owed; (5) a thing suitable to the requirements of justice, truth, duty, etc. (Lane). See also 2:148.
Commentary:
As disputes about inheritance are a fruitful source of quarrels, murders, etc., the Quran here suitably turns from the subject of retaliation to that of inheritance.
The word used here for "wealth" is خیر and not مال which is the ordinary word used in this sense. خیر means, "wealth acquired by fair and praiseworthy means". Thus by substituting the word خیر for مال, the Quran has also emphasized the necessity of being very circumspect in the acquisition of wealth which should be acquired only by fair and lawful means. Incidentally, therefore, it has been hinted that it is not lawful for a Muslim to make a will with regard to property that has been acquired by unlawful means; for such wealth does not really belong to him.
In 4:12, 13 the Quran fixes the shares of all those persons who should succeed to a deceased person’s property, according to the Islamic law of inheritance, and these in the first instance include parents, children, and wife or husband. In the presence of this law, the injunction given in the verse under comment would, at first sight, appear to be uncalled-for and unnecessary. As a matter of fact, those who believe in the abrogation theory, have actually declared this verse to be abrogated by the ones referred to above. But they are clearly mistaken; for the verse under comment makes an additional and necessary provision in regard to inheritance. Not seldom there come forward claimants who allege that a deceased person had bequeathed such and such portion of his property to them, and even witnesses are not wanting to support their claims. The rightful heirs, not knowing anything about it, naturally suspect the claim. The result is quarrel and litigation. Every Muslim is, therefore, enjoined to make a proper bequest at the time of his death that his property be divided among his heirs, i.e. parents, children, wives, etc., according to the Law of Islam, stating therein also the portion of any other individual who is not legally entitled to inherit from him but to whom he may wish to bequeath some of his wealth. Such a declaration made with the knowledge of his heirs and relatives is calculated to put a stop to much litigation. Such a provision is all the more essential in cases when the property or wealth is considerable.
The verse also throws out a hint that a Muslim should, before his death, bequeath a part of his property, not exceeding one-third, to such of his relations as have been debarred by Law from inheriting from him, for instance, distant but deserving relations, non-Muslim parents, non-Muslim children and so on. In such a case the remaining two-thirds will go to his lawful heirs. As to the restriction relating to one-third, it may be noted that the Holy Prophet has made it clear that no testator can bequeath more than one-third of his wealth to others than the lawful heirs. At least two-thirds of the property must go to the heirs (Bukhari).
Islam excludes non-Muslim relatives from the category of heirs to avoid complications. For instance, the near relatives of a deceased person might belong to a people who are at war with the Muslims or in open hostility toward them. In that case, to put money into their hands would be to damage the cause of Islam and injure one’s own interests. Non-Muslim relatives have, therefore, been excluded from lawful heirs so that they may not claim their part of the inheritance as of right. The Quran, however, instructs Muslims to leave to them a part of their property by a special will, so that, in case such property is not likely to be used against the interests of Islam, the former may in this way discharge the obligations they owe to the latter as kinsmen. Another reason for excluding non-Muslim relatives from the category of heirs is that generally non-Muslims do not in practice allow their Muslim relatives to succeed them as heirs. There is no sense, therefore, in allowing Muslim wealth to flow to non-Muslims where no such flow takes place the other way.
The verse serves yet another purpose. According to the Law of Islam, as generally accepted, the grandchild of a deceased Muslim is debarred from inheritance in case the former’s father has predeceased the latter. The Quran, therefore, directs that a portion of the property may be left by a special will by a dying Muslim for such of his relatives as are otherwise rightful heirs but cannot inherit owing to some of their near kinsmen having predeceased them.
The verse must not be understood to lend itself to the interpretation that the heirs whose portions have been definitely fixed by the Law, can be given more than their prescribed share. This is expressly forbidden by the Holy Prophet (Tirmidhi, ch. on Wasaya).
b
4:12, 13, 177; 5:107.
115
4:12,13经文注定了对所有应该继承死者产业的那些人的分配份额。这些经文被有些注经家误解为废止本节经文的, 实际上本节经文对遗产继承权制订了一条附加而且十分必要的规定, 这种遗产仅指有利于在法律上不该分得遗嘱的遗产的人, 或是出于慈善目的, 或由于战争状况的遗产。它不指有利于合法继承者的遗产, 关于那种遗产在4:12,13中业已述及。因此本节经文为制定遗赠规章的几节经文所废止的问题是不应发生的, 而且那几节经文也承认任何遗产的合法性。是以每一节经文都在自己的范围内起其一定的作用而且相辅相成。所以这样所规定的遗产, 根据萨德•彬•阿比•瓦卡斯 (سَعْد بِنْ اَبِیْ وَقَاص, Sa‘d bin Abi Waqqas) 的见解, 像穆圣在讲话中所提到的那样, 不应超过所留产业的三分之一 (Bukhari, Kitabul-Jana’iz); 这是立遗嘱者可以行使自由支配的处理权的最高限制, 不过这种遗产继承权只有那留下像خَيْر (Khair, 许多财富) 这词所表示的大笔财产者
才能使用。根据经文5:107, 一个将死的穆斯林可以规定遗产。一般的看法, 这节经文是在4:12, 13之后下降的; 这进一步支持了这个看法, 事实上, 本节没有被4:12, 13所代替。一切经文废止的说法是没有根据的。
2
خَیْر کے معنے مطلق مال کے بھی ہوتے ہیں اور بہت سے مال کے بھی۔ اس جگہ آیت کے سیاق و سباق سے ظاہر ہوتا ہے کہ مالِ کثیر مراد ہے۔
3
یہاں والدین اور اقربین کو وصیت کرنا کہا ہے حالانکہ اولاد قلبی تعلقات کے لحاظ سے نہایت اہم ہے اس سے معلوم ہوتا ہے کہ یہ مال کی تقسیم کی وصیت نہیں ورنہ اولاد کا ذکر ضرور ہوتا۔ بلکہ وصیت سے مراد عام تاکید ہے کہ احکامِ الٰہیہ کے مطابق جائیداد تقسیم کی جائے۔ اور اگر مال کا کوئی حصہ صدقہ کرنا ہو تو اس کا اظہار کردے۔ اس آیت پر بہت بحث ہوئی ہے۔ اکثر مفسرین اسے منسوخ قرار دیتے ہیں کیونکہ اس میں وصیت واجب لکھی ہے اور احکام وراثت کے نزول کے بعد رشتہ داروں کے نام وصیت جائز نہیں۔ اور جنہوں نے جائز قرار دی ہے ان کے نزدیک بھی واجب نہیں‘ مگر یہ غلطی اس وجہ سے لگی ہے کہ وصیت کے معنے
a
4:12, 13, 177; 5:107.
187
Important Words:
خیر (much wealth) means: (1) good as opposed to evil; (2) wealth acquired or collected by fair and praiseworthy means; (3) much wealth or abundance of wealth; (4) a thing that all desire; (5) welfare and good fortune (Mufradat); (6) the existence of a thing in abundance and perfection; (7) horses, etc. (Aqrab).
حقا (obligation) is derived from حق and has been used in the verse in the accusative case, having something understood before it, the complete expression being حق ذالك حقا (Kashshaf). الحق means: (1) equity or justice; (2) right mode of acting; (3) an obligation or a duty; (4) a debt or anything that is owed; (5) a thing suitable to the requirements of justice, truth, duty, etc. (Lane). See also 2:148.
Commentary:
As disputes about inheritance are a fruitful source of quarrels, murders, etc., the Quran here suitably turns from the subject of retaliation to that of inheritance.
The word used here for "wealth" is خیر and not مال which is the ordinary word used in this sense. خیر means, "wealth acquired by fair and praiseworthy means". Thus by substituting the word خیر for مال, the Quran has also emphasized the necessity of being very circumspect in the acquisition of wealth which should be acquired only by fair and lawful means. Incidentally, therefore, it has been hinted that it is not lawful for a Muslim to make a will with regard to property that has been acquired by unlawful means; for such wealth does not really belong to him.
In 4:12, 13 the Quran fixes the shares of all those persons who should succeed to a deceased person’s property, according to the Islamic law of inheritance, and these in the first instance include parents, children, and wife or husband. In the presence of this law, the injunction given in the verse under comment would, at first sight, appear to be uncalled-for and unnecessary. As a matter of fact, those who believe in the abrogation theory, have actually declared this verse to be abrogated by the ones referred to above. But they are clearly mistaken; for the verse under comment makes an additional and necessary provision in regard to inheritance. Not seldom there come forward claimants who allege that a deceased person had bequeathed such and such portion of his property to them, and even witnesses are not wanting to support their claims. The rightful heirs, not knowing anything about it, naturally suspect the claim. The result is quarrel and litigation. Every Muslim is, therefore, enjoined to make a proper bequest at the time of his death that his property be divided among his heirs, i.e. parents, children, wives, etc., according to the Law of Islam, stating therein also the portion of any other individual who is not legally entitled to inherit from him but to whom he may wish to bequeath some of his wealth. Such a declaration made with the knowledge of his heirs and relatives is calculated to put a stop to much litigation. Such a provision is all the more essential in cases when the property or wealth is considerable.
The verse also throws out a hint that a Muslim should, before his death, bequeath a part of his property, not exceeding one-third, to such of his relations as have been debarred by Law from inheriting from him, for instance, distant but deserving relations, non-Muslim parents, non-Muslim children and so on. In such a case the remaining two-thirds will go to his lawful heirs. As to the restriction relating to one-third, it may be noted that the Holy Prophet has made it clear that no testator can bequeath more than one-third of his wealth to others than the lawful heirs. At least two-thirds of the property must go to the heirs (Bukhari).
Islam excludes non-Muslim relatives from the category of heirs to avoid complications. For instance, the near relatives of a deceased person might belong to a people who are at war with the Muslims or in open hostility toward them. In that case, to put money into their hands would be to damage the cause of Islam and injure one’s own interests. Non-Muslim relatives have, therefore, been excluded from lawful heirs so that they may not claim their part of the inheritance as of right. The Quran, however, instructs Muslims to leave to them a part of their property by a special will, so that, in case such property is not likely to be used against the interests of Islam, the former may in this way discharge the obligations they owe to the latter as kinsmen. Another reason for excluding non-Muslim relatives from the category of heirs is that generally non-Muslims do not in practice allow their Muslim relatives to succeed them as heirs. There is no sense, therefore, in allowing Muslim wealth to flow to non-Muslims where no such flow takes place the other way.
The verse serves yet another purpose. According to the Law of Islam, as generally accepted, the grandchild of a deceased Muslim is debarred from inheritance in case the former’s father has predeceased the latter. The Quran, therefore, directs that a portion of the property may be left by a special will by a dying Muslim for such of his relatives as are otherwise rightful heirs but cannot inherit owing to some of their near kinsmen having predeceased them.
The verse must not be understood to lend itself to the interpretation that the heirs whose portions have been definitely fixed by the Law, can be given more than their prescribed share. This is expressly forbidden by the Holy Prophet (Tirmidhi, ch. on Wasaya).
a
4:12, 13, 177; 5:107.
205
Verses 4:12, 13 fix the shares of all those persons who should succeed to a deceased person’s property. These verses have been mistakenly understood by some Commentators to abrogate the verse under comment, which, in fact, lays down an additional and very necessary provision, and refers only to bequests made in favour of individuals not legally entitled to a share in the testator’s property, or for charitable purposes, or for war conditions. It does not refer to bequests made in favour of legal heirs which subject has been dealt with in 4:12, 13. There is no question, therefore, of the abrogation of this verse by those verses which lay down the rules of inheritance and also recognise the validity of any bequests that may have been made. Each operates in its own sphere and draws strength from the other. The bequests thus made, however, should not exceed one third of the property left as is mentioned in a saying of the Holy Prophet related by Sa‘d bin Abi Waqqas (Bukhari, Kitabul-Jana’iz); thi
فَمَنۢ بَدَّلَهُۥ بَعْدَمَا سَمِعَهُۥ فَإِنَّمَآ إِثْمُهُۥ عَلَى ٱلَّذِينَ يُبَدِّلُونَهُۥٓ ۚ إِنَّ ٱللَّهَ سَمِيعٌ عَلِيمٌ
فَمَنْ بَدَّلَہٗ کے الفاظ سے معلوم ہوتا ہے کہ کسی قرآنی حکم کی طرف اشارہ ہے اور وہ حکم وراثت کا ہی ہے ورنہ اس کا کیا مطلب کہ بدلنے کا گناہ بدلنے والوں پر ہوگا۔ وصیت کرنے والے پر نہ ہوگا۔ کیونکہ اگر اس وصیت کی تفصیلات شرعی نہیں بلکہ وصیت کرنے والے کی مرضی پر ہیں تو ان کے بیان نہ کرنے سے مرنے والے کو گناہ کیوں ہو۔ اس کے گنہگار ہونے کا سوال تبھی ہو سکتا ہے جبکہ کسی شرعی حکم کی خلاف ورزی ہو رہی ہو اور وہ اسی طرح ہو سکتی ہے کہ اس آیت میں احکام وراثت بھی شامل ہوں اور مطلب یہ ہو کہ مرنے والا یہ وصیت کر جائے کہ احکام اسلام کے مطابق عمل کیا جائے اس صورت میں وہ گناہ سے بچ جائے
This indicates that the previous verse contemplates some directions which are obligatory and a contravention of which would be sinful. Obviously, what is meant is a direction that the estate shall be administered in accordance with the law of inheritance. If the testator gives such a direction, then the sin of any contravention would lie on those who are guilty of the contravention.
Commentary:
If a person makes a will in compliance with the above commandment, but his heirs, finding it to be prejudicial to their interests, alter it or hinder its execution, the blame and the responsibility for consequences will lie on those who tamper with the will and not on the maker of the will. Apparently, the verse seems to be superfluous; for what it says is obvious, i.e. the responsibility of any subsequent alteration cannot lie on the testator. But deeper consideration would show the futility of such an idea. In fact, the verse serves three important purposes. Firstly, it warns the testator that fear of any subsequent alteration should not deter him from making the will. Secondly, that he should act intelligently and cautiously and should try to foresee and forestall all possible mischief by his heirs. Thirdly, the verse warns the heirs and their friends that any alteration made by them in the will will bring them under the wrath of God Who is All-Knowing.
1
فَمَنْ بَدَّلَہٗ کے الفاظ سے معلوم ہوتا ہے کہ کسی قرآنی حکم کی طرف اشارہ ہے اور وہ حکم وراثت کا ہی ہے ورنہ اس کا کیا مطلب کہ بدلنے کا گناہ بدلنے والوں پر ہوگا۔ وصیت کرنے والے پر نہ ہوگا۔ کیونکہ اگر اس وصیت کی تفصیلات شرعی نہیں بلکہ وصیت کرنے والے کی مرضی پر ہیں تو ان کے بیان نہ کرنے سے مرنے والے کو گناہ کیوں ہو۔ اس کے گنہگار ہونے کا سوال تبھی ہو سکتا ہے جبکہ کسی شرعی حکم کی خلاف ورزی ہو رہی ہو اور وہ اسی طرح ہو سکتی ہے کہ اس آیت میں احکام وراثت بھی شامل ہوں اور مطلب یہ ہو کہ مرنے والا یہ وصیت کر جائے کہ احکام اسلام کے مطابق عمل کیا جائے اس صورت میں وہ گناہ سے بچ جائے
188
Commentary:
If a person makes a will in compliance with the above commandment, but his heirs, finding it to be prejudicial to their interests, alter it or hinder its execution, the blame and the responsibility for consequences will lie on those who tamper with the will and not on the maker of the will. Apparently, the verse seems to be superfluous; for what it says is obvious, i.e. the responsibility of any subsequent alteration cannot lie on the testator. But deeper consideration would show the futility of such an idea. In fact, the verse serves three important purposes. Firstly, it warns the testator that fear of any subsequent alteration should not deter him from making the will. Secondly, that he should act intelligently and cautiously and should try to foresee and forestall all possible mischief by his heirs. Thirdly, the verse warns the heirs and their friends that any alteration made by them in the will will bring them under the wrath of God Who is All-Knowing.
205A
This indicates that the previous verse contemplates some directions which are obligatory and a contravention of which would be sinful. Obviously, what is meant is a direction that the estate shall be administered in accordance with the law of inheritance. If the testator gives such a direction, then the sin of any contravention would lie on those who are guilty of the contravention.
فَمَنْ خَافَ مِن مُّوصٍ جَنَفًا أَوْ إِثْمًا فَأَصْلَحَ بَيْنَهُمْ فَلَآ إِثْمَ عَلَيْهِ ۚ إِنَّ ٱللَّهَ غَفُورٌ رَّحِيمٌ
一个遗嘱可能遵照法定要求, 而也可能在它的某条款中是不公正的。例如, 假如某人留下很多继承者, 如果他出于施舍或其它合法的目的立下遗嘱, 花掉的数字高达足足有三分之一, 那么, 他就会给他们 (继承者) 带来困苦。或者, 立遗嘱者可能不公平地处理了可容许的三分之一之外的遗产, 不顾或忽略合法的要求。在这种情况下容许, 也的确值得在所有继承人与被偏袒的遗产承受人之间进行公平的调整。
یعنی وصیت کرنے والے اور ان رشتہ داروں کے درمیان جن کو نقصان پہنچانے یا نظر انداز کر دینے کا اس کا ارادہ ہو یا ان اشخاص میں جن کے حق میں وصیت ہے‘ باہمی سمجھوتے سے ان کو راضی کر دے کہ باوجود وصیت کے وہ ایک دوسرے کو اس کا حق ادا کر دیں۔ بعض دفعہ شریعت پر عمل کرنے کے باوجود وصیت کرنے کی صورت میں بعض نقصانات کا احتمال موجود ہوتا ہے۔ مثلاً اگر کوئی شخص ۳ /۱ کی وصیت کر دے مگر باقی وارث اتنے ہوں کہ بقیہ مال میں سے ان کو حصہ بہت کم ملتا ہو تو ایسی صورت میں اگر اصلاح کروادی جائے تو گناہ نہیں یعنی وصیت کرنے والے اور اس کے خاص محبوب یا خاص مبغوض میں صلح کرا دے۔
A will may comply with legal requirements and may yet be unfair in some of its provisions. For instance, if a person leaves a large number of heirs, it may entail a hardship on them if he wills away as much as the full one-third for charitable or other lawful purposes. Or, out of the permissible 1/3 the testator may have made unfair dispositions, neglecting or overlooking just claims. It would in such a case be permissible, indeed meritorious, to bring about a fair adjustment between the heirs and the legatees affected.
Important Words:
جنفا (partiality) is the infinitive noun from جنف. They say جنف عن الطریق meaning, he deviated from the right path. جنف فی وصیتهmeans, he acted wrongfully in his will. جانف اھله means, he kept away from his family out of anger and not for a just cause. تجانف لاثم means, he inclined towards sin. So جنف means: (1) inclining to sin, etc. (2) deviating from the right course; (3) acting unjustly or wrongfully; (4) keeping away from rightful things (Aqrab).
Commentary:
If someone should have reason to fear that the testator is showing undue favour to any particular person or party, or that he is acting contrary to Islamic Law, it would be no sin for him to bring about reconciliation between the parties concerned by removing the cause of displeasure or disagreement between the testator and his heirs and thereby having the will altered in accordance with the requirements of justice and Islamic Law. The words, it shall be no sin for him, do not mean that such pious intervention is simply an act of negative virtue. The expression has been used lest, in view of what has been said in the preceding verse regarding the sinfulness of the act of alteration in a will, some overcautious people should hold aloof even when they see an unjust inclination on the part of the testator. The verse thus really means that such an interference, far from being an act of sin, is an act of virtue which is sure to draw God’s mercy.
The concluding clause reminds the testator that God is Forgiving, so that if he mends his error, He will be pleased to forgive him. The declaration that God is Merciful, also serves as an inducement to other Muslims to intervene, if it is felt that the testator is unduly partial to one party, to the detriment of the other. In that case they should readily step in and set things right, for which God would give them an ample portion out of His mercy. Thus the word غفور (Most Forgiving) relates to such testators as return to the right course when reminded to do so, and the word رحیم (Merciful) relates to those persons who succeed in persuading the testator to revert to the path of rectitude and justice.
116
一个遗嘱可能遵照法定要求, 而也可能在它的某条款中是不公正的。例如, 假如某人留下很多继承者, 如果他出于施舍或其它合法的目的立下遗嘱, 花掉的数字高达足足有三分之一, 那么, 他就会给他们 (继承者) 带来困苦。或者, 立遗嘱者可能不公平地处理了可容许的三分之一之外的遗产, 不顾或忽略合法的要求。在这种情况下容许, 也的确值得在所有继承人与被偏袒的遗产承受人之间进行公平的调整。
2
یعنی وصیت کرنے والے اور ان رشتہ داروں کے درمیان جن کو نقصان پہنچانے یا نظر انداز کر دینے کا اس کا ارادہ ہو یا ان اشخاص میں جن کے حق میں وصیت ہے‘ باہمی سمجھوتے سے ان کو راضی کر دے کہ باوجود وصیت کے وہ ایک دوسرے کو اس کا حق ادا کر دیں۔ بعض دفعہ شریعت پر عمل کرنے کے باوجود وصیت کرنے کی صورت میں بعض نقصانات کا احتمال موجود ہوتا ہے۔ مثلاً اگر کوئی شخص ۳ /۱ کی وصیت کر دے مگر باقی وارث اتنے ہوں کہ بقیہ مال میں سے ان کو حصہ بہت کم ملتا ہو تو ایسی صورت میں اگر اصلاح کروادی جائے تو گناہ نہیں یعنی وصیت کرنے والے اور اس کے خاص محبوب یا خاص مبغوض میں صلح کرا دے۔
189
Important Words:
جنفا (partiality) is the infinitive noun from جنف. They say جنف عن الطریق meaning, he deviated from the right path. جنف فی وصیتهmeans, he acted wrongfully in his will. جانف اھله means, he kept away from his family out of anger and not for a just cause. تجانف لاثم means, he inclined towards sin. So جنف means: (1) inclining to sin, etc. (2) deviating from the right course; (3) acting unjustly or wrongfully; (4) keeping away from rightful things (Aqrab).
Commentary:
If someone should have reason to fear that the testator is showing undue favour to any particular person or party, or that he is acting contrary to Islamic Law, it would be no sin for him to bring about reconciliation between the parties concerned by removing the cause of displeasure or disagreement between the testator and his heirs and thereby having the will altered in accordance with the requirements of justice and Islamic Law. The words, it shall be no sin for him, do not mean that such pious intervention is simply an act of negative virtue. The expression has been used lest, in view of what has been said in the preceding verse regarding the sinfulness of the act of alteration in a will, some overcautious people should hold aloof even when they see an unjust inclination on the part of the testator. The verse thus really means that such an interference, far from being an act of sin, is an act of virtue which is sure to draw God’s mercy.
The concluding clause reminds the testator that God is Forgiving, so that if he mends his error, He will be pleased to forgive him. The declaration that God is Merciful, also serves as an inducement to other Muslims to intervene, if it is felt that the testator is unduly partial to one party, to the detriment of the other. In that case they should readily step in and set things right, for which God would give them an ample portion out of His mercy. Thus the word غفور (Most Forgiving) relates to such testators as return to the right course when reminded to do so, and the word رحیم (Merciful) relates to those persons who succeed in persuading the testator to revert to the path of rectitude and justice.
205B
A will may comply with legal requirements and may yet be unfair in some of its provisions. For instance, if a person leaves a large number of heirs, it may entail a hardship on them if he wills away as much as the full one-third for charitable or other lawful purposes. Or, out of the permissible 1/3 the testator may have made unfair dispositions, neglecting or overlooking just claims. It would in such a case be permissible, indeed meritorious, to bring about a fair adjustment between the heirs and the legatees affected.
يَٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوا۟ شَهَٰدَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ ٱلْمَوْتُ حِينَ ٱلْوَصِيَّةِ ٱثْنَانِ ذَوَا عَدْلٍ مِّنكُمْ أَوْ ءَاخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنتُمْ ضَرَبْتُمْ فِى ٱلْأَرْضِ فَأَصَٰبَتْكُم مُّصِيبَةُ ٱلْمَوْتِ ۚ تَحْبِسُونَهُمَا مِنۢ بَعْدِ ٱلصَّلَوٰةِ فَيُقْسِمَانِ بِٱللَّهِ إِنِ ٱرْتَبْتُمْ لَا نَشْتَرِى بِهِۦ ثَمَنًا وَلَوْ كَانَ ذَا قُرْبَىٰ ۙ وَلَا نَكْتُمُ شَهَٰدَةَ ٱللَّهِ إِنَّآ إِذًا لَّمِنَ ٱلْءَاثِمِينَ
2:141, 284.
2:141, 284.
An incident is reported to have occurred in the time of the Holy Prophet which throws some light on this and the following two verses. A Muslim who died far from home entrusted his goods to two Christian brothers—Tamim Dariy and ‘Adi—before his death and asked them to deliver the same to his heirs at Medina. On receiving the goods the heirs found that a silver bowl was missing. The two men were thereupon called to explain the loss of the bowl, but they denied all knowledge of it on oath. Later, the heirs of the deceased person happened to see the bowl with some persons at Mecca who told them that it had been sold to them by the two men to whom the deceased had entrusted his belongings. Thereupon the two men were again summoned, and in their presence the heirs of the belongings stated on oath that the bowl was theirs, whereupon it was handed over to them (Manthur).
The Prayer should preferably be the ‘Asr (Late Afternoon) Prayer, because it was after this Prayer that the Holy Prophet summoned the two witnesses to whom reference has been made above and who were believed to have stolen the silver bowl. The time after Prayer has been chosen with a view to inspiring the witnesses with God-fearingness and inclining their minds to truthfulness. If the witnesses be non-Muslims, then they may be called upon to swear after the time of their own worship, so that the solemnity of the hour may incline them to make true statement.
2:141, 284.
Commentary:
See collective note on 5:109 below.
a
2:141, 284.
a
2:141, 284.
734
Commentary:
See collective note on 5:109 below.
a
2:141, 284.
800
An incident is reported to have occurred in the time of the Holy Prophet which throws some light on this and the following two verses. A Muslim who died far from home entrusted his goods to two Christian brothers—Tamim Dariy and ‘Adi—before his death and asked them to deliver the same to his heirs at Medina. On receiving the goods the heirs found that a silver bowl was missing. The two men were thereupon called to explain the loss of the bowl, but they denied all knowledge of it on oath. Later, the heirs of the deceased person happened to see the bowl with some persons at Mecca who told them that it had been sold to them by the two men to whom the deceased had entrusted his belongings. Thereupon the two men were again summoned, and in their presence the heirs of the belongings stated on oath that the bowl was theirs, whereupon it was handed over to them (Manthur).
801
The Prayer should preferably be the ‘Asr (Late Afternoon) Prayer, because it was after this Prayer that the Holy Prophet summoned the two witnesses to whom reference has been made above and who were believed to have stolen the silver bowl. The time after Prayer has been chosen with a view to inspiring the witnesses with God-fearingness and inclining their minds to truthfulness. If the witnesses be non-Muslims, then they may be called upon to swear after the time of their own worship, so that the solemnity of the hour may incline them to make true statement.
فَإِنْ عُثِرَ عَلَىٰٓ أَنَّهُمَا ٱسْتَحَقَّآ إِثْمًا فَـَٔاخَرَانِ يَقُومَانِ مَقَامَهُمَا مِنَ ٱلَّذِينَ ٱسْتَحَقَّ عَلَيْهِمُ ٱلْأَوْلَيَٰنِ فَيُقْسِمَانِ بِٱللَّهِ لَشَهَٰدَتُنَآ أَحَقُّ مِن شَهَٰدَتِهِمَا وَمَا ٱعْتَدَيْنَآ إِنَّآ إِذًا لَّمِنَ ٱلظَّٰلِمِينَ
The word Aulayan refers to the first two witnesses and signifies that these two were in a better position to give true evidence, being the persons who were with the deceased at the time of his death and in whose presence the will was made and to whom the property was entrusted to be handed over to the heirs of the deceased. The "other" two witnesses should be from among the deceased person’s heirs.
Important Words:
اَولیان (the two who were in a better position) is derived from ولی being the dual of اولی which means, one more worthy or more competent or more entitled or more deserving or better fitted or having a better claim to do a thing, etc. (Lane). See also 4:136.
استحقااثما (the two are guilty of sin) and استحق علیھم (against whom they sinfully deposed). The word استحق is derived from حقwhich means, it was or became suitable to the requirements of wisdom, justice, right and truth; it was or became right, proper, correct or true; it became established as a truth. استحقه means, he demanded it as his right or due; he had a right or title or claim to it; he deserved or merited it. They say استحق اثما i.e. he did what necessitated sin; or he was guilty of a sin and deserved it being said of him that he was a sinner. The expression علیھم added the word استحق means "against them", the particle علی sometimes meaning "against". استحقھا علی المشتری means, he has a right to it in preference to the purchaser, i.e. he has a better claim to it as against the buyer. The words استحق علیھم therefore, would mean, they (the two witnesses who were in a better position to give true evidence) gave false evidence against their just rights, seeking to deprive them (heirs of the deceased) of their rights by giving false evidence against them.
Commentary:
See collective note on 5:109.
735
Important Words:
اَولیان (the two who were in a better position) is derived from ولی being the dual of اولی which means, one more worthy or more competent or more entitled or more deserving or better fitted or having a better claim to do a thing, etc. (Lane). See also 4:136.
استحقااثما (the two are guilty of sin) and استحق علیھم (against whom they sinfully deposed). The word استحق is derived from حقwhich means, it was or became suitable to the requirements of wisdom, justice, right and truth; it was or became right, proper, correct or true; it became established as a truth. استحقه means, he demanded it as his right or due; he had a right or title or claim to it; he deserved or merited it. They say استحق اثما i.e. he did what necessitated sin; or he was guilty of a sin and deserved it being said of him that he was a sinner. The expression علیھم added the word استحق means "against them", the particle علی sometimes meaning "against". استحقھا علی المشتری means, he has a right to it in preference to the purchaser, i.e. he has a better claim to it as against the buyer. The words استحق علیھم therefore, would mean, they (the two witnesses who were in a better position to give true evidence) gave false evidence against their just rights, seeking to deprive them (heirs of the deceased) of their rights by giving false evidence against them.
Commentary:
See collective note on 5:109.
802
The word Aulayan refers to the first two witnesses and signifies that these two were in a better position to give true evidence, being the persons who were with the deceased at the time of his death and in whose presence the will was made and to whom the property was entrusted to be handed over to the heirs of the deceased. The "other" two witnesses should be from among the deceased person’s heirs.
ذَٰلِكَ أَدْنَىٰٓ أَن يَأْتُوا۟ بِٱلشَّهَٰدَةِ عَلَىٰ وَجْهِهَآ أَوْ يَخَافُوٓا۟ أَن تُرَدَّ أَيْمَٰنٌۢ بَعْدَ أَيْمَٰنِهِمْ ۗ وَٱتَّقُوا۟ ٱللَّهَ وَٱسْمَعُوا۟ ۗ وَٱللَّهُ لَا يَهْدِى ٱلْقَوْمَ ٱلْفَٰسِقِينَ
Commentary:
The Arabic words ترد ایمان بعد ایمانھم rendered as "other oaths will be taken after their oaths" literally means: (1) "oaths will be repeated, i.e. taken again, after their oaths"; or (2) "their oaths will be rejected after their (other witnesses’) oaths", the significance in both cases being practically the same, i.e. the oaths of the first two witnesses will be rejected and two other witnesses called in to give true evidence on oath.
The purport of this and the preceding two verses is that when a person is about to make his will at the time of his death, he should have as witnesses to his statement two just men, who should testify to the validity of his will after his death. But if death comes upon a person suddenly when he is away from home and no Muslim witnesses are at hand, then two trustworthy non-Muslims may be asked to serve as witnesses. If, however, the veracity of the witnesses is called into question by the heirs of the deceased, the former should be asked to prove their truthfulness by a statement on oath made after the time of Prayer. But if the persons in whose favour the will was made have good reason to believe that the witnesses have been guilty of perjury, then they can state on oath that their statement is truer than that of the two witnesses, and in that case the qadi or judge, if satisfied, will give his decree in their favour.
An incident is reported to have occurred in the days of the Holy Prophet which throws some light on the verses under comment. A Muslim who died away from home entrusted his goods to two men before his death and asked them to deliver the same to his heirs at Medina. On receiving the goods, the heirs found that a silver bowl was missing. The two men were thereupon called upon to explain the loss of the bowl, but they denied all knowledge of it on oath. Later, the heirs of the deceased person happened to see the bowl with some persons at Mecca who told them that it had been sold to them by the two men to whom the deceased had entrusted his property. Thereupon the two men were again summoned, and in their presence the heirs of the deceased stated on oath that the bowl was theirs, whereupon it was handed over to them (Manthur).
The Prayer mentioned in 5:107 above may be any Prayer but preferably it should be the ‘Asr or late afternoon Prayer, because it was after this Prayer that the Holy Prophet summoned the two witnesses to whom reference has been made above and who were believed to have stolen the silver bowl. The time after Prayer has been chosen with a view to inspiring witnesses with ideas of piety and God-fearingness and inclining their minds to truthfulness. If the witnesses be non-Muslims, then they may be called upon to swear after the time of their own worship, so that the solemnity of the hour may incline them to make a true statement, because the worship of God is calculated to exercise a purifying influence on the human mind, and men fresh from Prayer are expected to fear God and make a true statement.
The word اَولیان (the two, who were in a better position) occurring in 5:108 above is the dual of اولی which means more competent or more worthy. It refers to the first two witnesses and signifies that these two were in a better position to give true evidence, being the persons who were with the deceased at the time of his death and in whose presence the will was made and to whom the property was entrusted to be handed over to the heirs of the deceased. The expression also serves as a sort of veiled reproach to them that, in spite of being in a better position and more competent to give true evidence, they stumbled and drifted away from truth.
The second two witnesses should be from among the deceased person’s heirs, whom the first two witnesses deprived of their right by bearing false witness regarding the will of the deceased.
736
Commentary:
The Arabic words ترد ایمان بعد ایمانھم rendered as "other oaths will be taken after their oaths" literally means: (1) "oaths will be repeated, i.e. taken again, after their oaths"; or (2) "their oaths will be rejected after their (other witnesses’) oaths", the significance in both cases being practically the same, i.e. the oaths of the first two witnesses will be rejected and two other witnesses called in to give true evidence on oath.
The purport of this and the preceding two verses is that when a person is about to make his will at the time of his death, he should have as witnesses to his statement two just men, who should testify to the validity of his will after his death. But if death comes upon a person suddenly when he is away from home and no Muslim witnesses are at hand, then two trustworthy non-Muslims may be asked to serve as witnesses. If, however, the veracity of the witnesses is called into question by the heirs of the deceased, the former should be asked to prove their truthfulness by a statement on oath made after the time of Prayer. But if the persons in whose favour the will was made have good reason to believe that the witnesses have been guilty of perjury, then they can state on oath that their statement is truer than that of the two witnesses, and in that case the qadi or judge, if satisfied, will give his decree in their favour.
An incident is reported to have occurred in the days of the Holy Prophet which throws some light on the verses under comment. A Muslim who died away from home entrusted his goods to two men before his death and asked them to deliver the same to his heirs at Medina. On receiving the goods, the heirs found that a silver bowl was missing. The two men were thereupon called upon to explain the loss of the bowl, but they denied all knowledge of it on oath. Later, the heirs of the deceased person happened to see the bowl with some persons at Mecca who told them that it had been sold to them by the two men to whom the deceased had entrusted his property. Thereupon the two men were again summoned, and in their presence the heirs of the deceased stated on oath that the bowl was theirs, whereupon it was handed over to them (Manthur).
The Prayer mentioned in 5:107 above may be any Prayer but preferably it should be the ‘Asr or late afternoon Prayer, because it was after this Prayer that the Holy Prophet summoned the two witnesses to whom reference has been made above and who were believed to have stolen the silver bowl. The time after Prayer has been chosen with a view to inspiring witnesses with ideas of piety and God-fearingness and inclining their minds to truthfulness. If the witnesses be non-Muslims, then they may be called upon to swear after the time of their own worship, so that the solemnity of the hour may incline them to make a true statement, because the worship of God is calculated to exercise a purifying influence on the human mind, and men fresh from Prayer are expected to fear God and make a true statement.
The word اَولیان (the two, who were in a better position) occurring in 5:108 above is the dual of اولی which means more competent or more worthy. It refers to the first two witnesses and signifies that these two were in a better position to give true evidence, being the persons who were with the deceased at the time of his death and in whose presence the will was made and to whom the property was entrusted to be handed over to the heirs of the deceased. The expression also serves as a sort of veiled reproach to them that, in spite of being in a better position and more competent to give true evidence, they stumbled and drifted away from truth.
The second two witnesses should be from among the deceased person’s heirs, whom the first two witnesses deprived of their right by bearing false witness regarding the will of the deceased.