Inadequacies and Errors of Classical Islamic Fiqh - Inheritance Related Calculations

By Naseer Ahmed, New Age Islam

25 April 2019

There are only two verses relating to division of inheritance among heirs based on which books have been written which confuse rather than elucidate. These two verses are both necessary and sufficient to cover all situations which leave behind close family members such as parents, spouse, children and siblings as heirs. However, we need to know some basic school level arithmetic covering fractions and proportions taught at middle school level. There are however very few who have even such rudimentary knowledge of arithmetic, and in the times of the Prophet, it would appear that there were none, which necessitated revelation of a third verse 4:176 which will be discussed later. The subject was poorly understood even several centuries later by the Imams of Fiqh.

The Two Verses Detailing Division Of Inheritance

(4:11) Allah (thus) directs you as regards your Children´s (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth. (The distribution in all cases (´s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, Al-wise.

From 4:11 above, we deduce that siblings of the deceased inherit only in the absence of child of the deceased. The presence or absence of parents of the deceased has no effect.

(4:12) In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah; and Allah is All-knowing, Most Forbearing.

The Arabic word Kalala is translated by some as “without ascendants and descendants”. In these verses, it means without descendants alone since as per verse 4:11, siblings inherit when parents of the deceased are survivors but not when a descendant or child of the deceased is a survivor. The meaning of Kalala covers grandchildren also. Siblings will therefore not inherit if the deceased is survived by either children or grandchildren or even great grandchildren. It follows logically, that in the absence of a parent, a grandchild will inherit his/her share in what his/her parent would have inherited. This is something that is denied in our Fiqh, and an orphaned grandchild most in need of support, is denied inheritance from grandparents.

What Is To Be Distributed As Inheritance?

(2:240) Those of you who die and leave widows should bequeath for their widows a year´s maintenance and residence; but if they leave (The residence), there is no blame on you for what they do with themselves, provided it is reasonable. And Allah is Exalted in Power, Wise.

The wife is entitled to one year’s maintenance if she continues to live in the husband’s house. The inheritance to be distributed is after all debts including Mehar, maintenance of wife for one year and Wills. Those covered by the Will, will not inherit as per 4:11, 12.

The deceased leaves assets in the form of property, cash, jewelry etc. All assets can be valued and it is the value that is divided and each inheritor can then choose in what form he will take his share of the value. What cannot be divided can then be sold and converted to cash or the excess/shortfall settled in cash. For example, if a property is worth Rs 40 lacs and a person’s inheritance is determined as Rs 30 lacs, he could still choose to take the property by paying Rs 10 lacs which will be used to settle the inheritance of the rest. This person will then obviously not take anything from the Jewelry and other assets because he has taken the full value of his inheritance from the property alone.

 Let us work through a few examples to understand the principle of distribution enunciated in the Quran.

Example 1: The deceased is survived by parents, wife, a son, a daughter, a brother and a sister.

Father’s share – 1/6

Mother’s share – 1/6

Wife – 1/8

What remains after the fixed shares are distributed is (1- (1/6+1/6+1/8)) or 13/24 and of this, the son gets 2/3 and the daughter 1/3.

The son’s share is therefore 26/72

The daughter’s share is 13/72

If the division is correct, then these fractions must add upto 1 or 1/6+1/6+1/8+26/72+13/72 should equal 1 which it does and therefore the division is correct.

The points to note are:

The siblings do not inherit anything in the presence of children of the deceased.

Children inherit as a residuary or from what remains after the fixed shares of those with a fixed share are distributed.

The Quran both protects and limits the share of those with a fixed share. In the example cited, both the daughter and the son inherit more than any of the fixed sharers.

Example 2 - The deceased is a male and is survived by mother, wife, brother, two sisters, but no children.

The mother’s fixed share is 1/6, wife ¼, and 1/3 to be distributed equally among the siblings.

The total works out to 1/6+1/4+1/3 = 9/12 or ¾ leaving ¼ undistributed. What do we do with it?

This is the problem that we face when there are no children or residuary to inherit all that is left after those with fixed shares get their share. The solution is simple and will be illustrated with an easy to understand story followed by the rule in mathematics.

A man owned twenty seven camels. This was his total property. When he died he left behind a mother, wife and three siblings. As per the Quran’s laws of inheritance, the property is to be inherited as follows:

 One fourth [1/4] of his property by wife,

One-sixth [1/6] of his property by Mother and

One-third [1/3] 0f his property to be equally divided among his siblings

 The heirs were in a quandary wondering how to divide 27 camels into one-fourth, one-sixth and one-ninth parts. [Strictly going by the ratio specified in the will, it worked out to be 6.75 camels for the wife, 4.75 camels for the mother and 9 camels for three siblings each getting 3 camels and 6.5 camel remaining undistributed].

 They went to the Wise Man for advice.

 “No problem!” said the Wise Man. “Add my 9 camels to yours and now how many camels do you have?”

“Thirty six camels,” they all said.

 “Good,” the Wise Man said.

 He looked at the wife and said, “Your share is one fourth of the total camels – one fourth of thirty six works out to be nine – so take your nine camels and go away.”

Twenty seven camels remained. [36 -9  = 27]

 Then he looked at the mother, “Your share is one sixth of the total camels – one sixth of thirty six works out to be six– so take your six camels and leave.”

 Twenty one camels remained. [27 – 6 = 21]

 Finally he looked at the siblings, “Your share is one third of the total camels to be divided equally among the two brothers and one sister– one third of thirty six works out to be twelve– so each of you take 12/3 or four camels and leave.”

 When the last inheritors took their share of camels and went away, there remained [21 – 12 = 9] the Wise man’s nine camels . The Wise Man took his nine camels back and walked home, having successfully divided the twenty seven camels amongst the inheritors as per the share decreed in the Qu’ran.

 We can see clearly that the distribution was both just and in accordance with the Quran. The relative proportions were maintained between the different heirs but the fractions changed. For example, the wife got 9/27 Camels or more than one-fourth, the mother 6/27 camels or more than 1/6 and the siblings together, 12/27 or more than 1/3. Each one got his/her share multiplied by 36/27or 4/3 or 33.33% more. The simple arithmetic rule therefore is:

The Simple Arithmetic Rule

Add up all the shares and if this number is a/b where a is not equal to b, then multiply each of the shares by b/a. The resultant shares will now add upto 1. In the example above, the shares added upto 3/4. We therefore have to multiply each of the shares by 4/3 to distribute correctly.

The modified shares become – wife ¼ *4/3 = 1/3 or (1/3 of 27 camels=9 camels)

Mother 1/6 *4/3= 2/9 (2/9 of 27 camels = 6 camels)

Siblings 1/3*4/3=4/9 (4/9 of 27 camels = 12 camels)

Alternate Solution

Another way of describing the solution is to say that, in the absence of residuary inheritors, the numbers for the fixed shares may be taken as relative proportions and not as fractions.

Therefore, the distribution in Example 2, should be in the proportion:

Wife: Mother: Siblings:: ¼ : 1/6:1/3 or 3:2:4

Wife’s share is then 3/9, Mother’s 2/9 and Siblings 4/9

Verse 4:176 is a compromise solution

The people in the Prophet’s time could not apparently deal with a situation without residuary when the fixed fractions did not add up to 1. The fact is that even today, not many people understand the mathematics and logic involved. The cases where a person died without children or residuary inheritors were however many with the wars claiming many young men. There were therefore incessant demands for clarification and guidance. The Prophet was not a mathematician or logician either, and did not have a satisfactory solution and all the ahadith regarding inheritance are in the nature of ad-hoc solutions and may therefore be ignored in the presence of precise logical solutions. Allah therefore revealed 4:176 which is not just the last verse in the Surah, but the very last verse revealed after a gap of several years. This verse makes the siblings residuary inheritors on par with children eliminating to a large extent, the problem of dealing with fractions that do not add upto 1.

(4:176) They ask thee for a legal decision. Say: Allah directs (thus) about those who leave no descendants (Kalala) as heirs. If it is a man that dies, leaving a sister but no child, she shall have half the inheritance: If (such a deceased was) a woman, who left no child, Her brother takes her inheritance: If there are two sisters, they shall have two-thirds of the inheritance (between them): if there are brothers and sisters, (they share), the male having twice the share of the female. Thus doth Allah make clear to you (His law), lest ye err. And Allah hath knowledge of all things.

The share of siblings in 4:176 is now different from what was originally decreed in 4:12. Our Fuquha explain this away by saying that the share described in 4:12 covers uterine brother/sister meaning having a common mother but different father and the share in 4:176 covers agnate (common father) and full siblings (common parents). This is patently untrue. The Quran makes no difference between different types of siblings. Besides, there is no reason why 4:12 covered uterine siblings and left out full and agnate siblings for several years and only covered them in the very last verse revealed. Now that we know how to deal with 4:12 without 4:176, we must treat 4:176 as no longer required or redundant. If in the example covered, we do it according to 4:176, then the shares will be as follows:

Relation of Heir	Without 4:176	With 4:176
Wife	1/3 or 33.33%	¼  Or 25%
Mother	2/9 or 22.22%	1/6 or 16.66%
Siblings	4/9 or 44.44%	7/12 or 58.33%
Each brother	4/27 or 14.81%	7/30 or 23.33%
Sister	4/27 or 14.81%	7/60 or 11.67%

 

Lesson from revelation of 4:176

Since the people were unable to deal with 4:12 in the absence of children or residuary inheritors, a lesson we learn from the revelation of 4:176, is that a poor solution (verse 4:176) is better than no solution,. The Prophet’s ad-hoc solutions which do not conform to the letter of the Quran were also such practical solutions which were better than no solution. Today, however, we do not suffer from such deficiency of knowledge and skills to deal with what is intended by verses 4:11 and 4:12, and we can now treat verse 4:176 and all the Ahadith regarding inheritance, as no longer required.

Questions about 4:176

People ask, “why didn’t Allah send an Angel to teach the mathematics involved rather than reveal 4:176?” The simple answer is that it is man who is given a certain knowledge/potential for knowledge denied to the Angels because of which Allah asked the Angels to prostrate before Adam. This is not a subject that can be taught by the Angels therefore.

Moreover, this is further proof that the verses regarding inheritance are from Allah and not from Muhammad (pbuh). This is only one example of a verse from the Quran exceeding the collective capacity/knowledge of the people to understand at the time of revelation. We also learn that the Ahadith of the Prophet are not divinely inspired solutions to problems posed, but his best answer to a question. So, when we are able to better understand directly from the Quran, we should not rely anymore on the Ahadith.

 Example 3.  Same as in example 1 except that the deceased is survived by three sons and two daughters.

What remains after the fixed shares are distributed is once again 13/24 and each son gets 2/8 of this and the daughter 1/8

The shares of each of the sons is now 13/96 and that of the daughter 13/192

In general, if there are x sons and y daughters, the share of each son is:

Residuary* (2/(2x+y)) and the share of each daughter is

Residuary * (1/(2x+y))

Example 4 – Same as example 1 but with only one son.

The son gets the remaining 13/24

Example 5 – Same as example 1 but with only one daughter.

What remains after the fixed shares are distributed is 13/24, which is more than half and therefore the daughter’s share is taken as ½. That leaves 1/24. What do we do with it?

We now know how to deal with this problem. The sum of 1/6 + 1/6 + 1/8 +1/2 =23/24

Therefore The Modified Shares Are:

Mother 1/6*24/23 = 4/23

Father also 4/23

Wife 1/8* 24/23 = 3/23

Daughter ½ * 24/23 = 12/23

Example 6 – Same as 1 but with two sons and no daughters

What remains after the fixed shares are distributed is 13/24 and each son gets 13/48 or 27.08% of total inheritance.

Example 7 - Same as 1 but with two daughters and no sons.

What remains after the fixed shares are distributed is 13/24 which is less than 2/3. The daughters will therefore inherit as residuary and each one will get 13/48.

The fixed share of ½ if only one daughter and no sons and 2/3 if two or more daughters and no son are upper limits. This means that the daughters will inherit as residuary or fixed sharer, whichever is lower. This logic follows from example 6. If we do not consider 2/3 for two or more daughters as the upper limit but as a fixed fraction, then two daughters inherit more than what two sons would have inherited in an otherwise identical situation. This is an example of using an appropriate analogy to deduce the correct meaning.

Avoid Dumb Literalism

However, if we proceed like dumb literalists, and take the shares as:

1/6 + 1/6+1/8+2/3 = (4+4+3+16)/24 = 27/24 = 9/8 and apply the rule for modified shares, the share of the fixed sharers are reduced to 8/9 or 88.88% of what is envisaged. The share of the two daughters is 2/3 *8/9 = 16/27 or each daughter gets 16/54 = 29.62% of the inheritance

What is wrong in this division is that the fixed sharer’s share is reduced and the two daughters get more than what they would have got had they been sons. This is incorrect.

Can an only daughter inherit 100%?

Let us say a deceased is survived by only daughter and sister (no parents, spouse or brother).

According to 4:11, if only daughter, her share is ½ and according to 4:176, if only single sister without brother her share is ½ in the absence of descendants. So do the daughter and sister inherit ½ each? Remember that siblings inherit only in the absence of descendants and the daughter is a descendant. Siblings cannot inherit when there are descendants. The daughter therefore inherits 100%. I doubt if any of our Muftis will allow a daughter more than ½ .

Remember the Wise Man solution when the daughter is the only heir? Add from the Wise Man an equal amount and let the daughter take away half of it and the Wise Man then takes away what he brought or the daughter inherits 100%. Mathematically when the daughter is the only heir, the total is ½ which we must multiply by 2/1 to get the correct share which means the daughter inherits 100%.

Verses Regarding Bequests

(2:180) It is prescribed, when death approaches any of you, if he leave any goods that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the Allah-fearing.

(181) If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows (All things).

(182) But if anyone fears partiality or wrong-doing on the part of the testator, and makes peace between (The parties concerned), there is no wrong in him: For Allah is Oft-forgiving, Most Merciful.

With verses making clear how to distribute inheritance, are the verses regarding bequests abrogated? The Fuquha have ruled that a person may bequeath only 1/3 of his/her property to any person not covered by the laws of inheritance. In other words, a person may bequeath upto 1/3 to an adopted child or to any person or persons  but not to spouse, parents, children who are covered by verses 4:11, 12.

The above ruling is patently incorrect. First of all, verses 4:11 and 4:12 have been made subject to (BaʿDi Waṣiyyatin Tūṣūna Bihā Aw Daynin), or after all debts and legacy/Will of the deceased is executed.

Allah specifically provides for bequests to enable a person to take care of those in need and not adequately covered by the laws in 4:11,12. A person may therefore bequeath more to a handicapped child or an old spouse depending upon their need. The fixed share of 1/8 for a wife may be enough for a young woman who can remarry but not for an old woman who has no independent means. Verse 4:11 and 4:12 are therefore to be applied in the absence of a Will by the deceased or when the Will does not cover all the property.

Verse regarding bequests is revealed afresh in Surah Al-Maida which is among the very last Surahs and after Verse 4:11 and 4:12, making it clear that bequests take precedence over 4:11 and 4:12.

(5:106) O ye who believe! When death approaches any of you, (take) witnesses among yourselves when making bequests,- two just men of your own (brotherhood) or others from outside if ye are journeying through the earth, and the chance of death befalls you (thus). If ye doubt (their truth), detain them both after prayer, and let them both swear by Allah: "We wish not in this for any worldly gain, even though the (beneficiary) be our near relation: we shall hide not the evidence before Allah: if we do, then behold! the sin be upon us!"

Ahadith That Are Compromises

Some of the Ahadith that differ from the ruling in the Quran, may have been because of verse 2:182. For example, a woman denied inheritance by father’s brother who controlled the deceased brother’s property is given half the share in the property and the woman who was the only surviving daughter of the deceased the other half. In this case, the brother of the deceased was refusing to give anything. If the Prophet had ruled according to the Quran that the daughter should get 100%, the brother may not have complied. The daughter was happy with getting half rather than nothing.  Such Ahadith represent compromises and cannot become the norm.

Inheritance When the Will Does Not Cover All Property

The share of the fixed sharers (parents and spouse) will be calculated after all debts are settled but before taking into account the Will, without affecting the Will. This will only reduce what remains as residuary.  For example, if what is left after debts is Rs 1 Crore, and the deceased willed Rs 0.5 crore for his handicapped child, the share of the parents will be 1/6 of Rs 1 crore and that of the wife will be 1/8. If both parents are alive and also wife, they will take away 11/24 of Rs 1 crore or Rs 45, 83,333. With Rs 50 lacs for the Will, we are left with a small residuary of Rs 4,166.66 for the remaining children. If the Will was for Rs 60 lacs, then the fixed sharers will get the remaining Rs 40 lacs in proportion of their fixed shares without leaving any residuary.

Share of the Wife When There Are More than One

The Fuquha have ruled that the wife’s share which is fixed as 1/8, will be equally divided if there are more wives. This goes against the letter and spirit of the Quran which makes some fixed sharers to protect their share. Each of the wives must get 1/8 and if there are four wives, they inherit together 4/8 or half, leaving enough for the parents and a residuary. If parents are also alive, the residuary is (1- (1/6+1/6+1/2) 1/6 to be distributed among the children.

With the help of the examples worked out above, the methodology has been made clear and you should now be able to work out any case.

Points to Note

Siblings (brothers and sisters) inherit equally as per 4:12

Parents (father and mother) also inherit equally, 1/6 each. The mother inherits 1/3 if the deceased is not survived by a child and a sibling, while the father inherits only 1/6.

The male child’s share alone is twice that of a female child’s. The male has the obligation to support relatives but not the females. What boys mostly inherit is the obligation to support and not any property. Therefore, the ruling has served the very large proportion of females from families that are poor.

Important Takeaways

Islamic Shariat is based on the Quran, the Sunna of the Prophet (pbuh), and legal rulings of the Imams. What I have shown is that even the Sunna of the Prophet may only have been a compromise or best solution for its times, and not represent accurately what the Quran says, and what can be clearly understood today. It is Allah’s blessing, that such a Shariat, built over several layers of errors, which the Imams decided to freeze in the tenth century, should be interrupted through several centuries of colonial rule to give the Muslims an opportunity to rebuild afresh based on the Quran alone. Islamic Shariat errs on every subject be it Jihad, Divorce, Witnessing, Crime and Punishment, Non-Muslim subjects etc. Allah may have subjected us to colonial rule only because we lost the dynamism to revise our Shariat from time to time based on a better understanding of the Divine intent in the Quran. The call for a return to the same old Shariat is therefore a dangerous call for being colonized once again. We need to discard the defective Shariat completely and rebuild afresh.

Related Articles:

The Qur’anic Message Admits of Flexibility in the Shares of the Siblings / Heirs

Inheritance Related Calculations Based On the Quran

Islamic Inheritance and Wills (Part 1)

Naseer Ahmed is an Engineering graduate from IIT Kanpur and is an independent IT consultant after having served in both the Public and Private sector in responsible positions for over three decades. He is a frequent contributor to NewAgeIslam.com

URL: https://newageislam.com/islamic-ideology/inadequacies-errors-classical-islamic-fiqh/d/118424

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