Irth (inheritance: the science of fixed shares, its lawfulness, the gradual legislation and the estate and its debts)

In the lexicon irth is what is original and old, which one inherits from the first, and the remainder of anything; it is used for a thing passing from one people to another, and for the thing inherited. ¹ Tarika (estate) is close to it in this use. ¹ The science of inheritance, also called the science of fixed shares (fara'id), is a science of the principles of law and arithmetic by which each heir's right in the estate is known. ¹ Technically, the Shafi'is and Hanbalis define irth as a right capable of division that is established for its beneficiary after the death of the one who held it, by kinship or the like. ¹

Knowing the fara'id is among the most important sciences after the pillars of religion, and the Prophet ﷺ urged its learning and teaching; the report says that knowledge will be taken away until two men dispute a share and find no one to decide between them. ¹ The Companions praised one another when they met to discuss it. ¹ Many jurists wrote separate books on fara'id, beginning in the second century AH; the early writers include Ibn Shubruma, Ibn Abi Layla and Abu Thawr. The law books of the second and third centuries had no inheritance rules, and law books began to include them only in the fourth century. ^{1 2}

Inheritance is lawful by the Qur'an, the Sunna and consensus. The Qur'an has the verses on inheritance; the Sunna includes the saying "give the shares to their people, and what remains goes to the nearest male", and the inheritance of a grandmother on her mother's side as attested by al-Mughira and Muhammad ibn Maslama (may God be pleased with him) before Umar; consensus includes the inheritance of a paternal grandmother by Umar's ijtihad, and analogy has no place in it. ²

In the pre-Islamic period people inherited by two means, kinship and cause. By kinship they did not inherit to minors or women, only to one who fought and took booty; this continued until the verses on women and children were revealed. The causes were alliance and contract, and adoption; these were left for a time and then abrogated. ^{2 3} A verse on alliance was revealed (al-Nisa, verse 33), and then abrogated by the verse of al-Ahzab (verse 6). ³

Juristic usage of tarika is what the deceased left in property and rights; for the Hanafis it is what he left as property free of another's right in a specific thing. Under Hanafi principle only rights that are attached to property, such as the right to build higher and rights of use, pass to heirs; the option, pre-emption and the usufruct of a bequeathed thing do not pass in their view. ³ Blood-money due for accidental killing, or agreed in place of wilful killing, is part of the estate. ³ The Malikis, Shafi'is and the well-known Hanafi view begin with the debts attached to particular goods, such as a mortgaged thing, because the deceased could not dispose of what another's right attached to during life. If the whole estate is mortgaged, the deceased is not prepared for burial until the debt is met, or from the surplus; otherwise his burial falls on the one who was obliged to maintain him in life. ³ The Hanbalis and the less known Hanafi view put the shroud and burial first, as the maintenance of an insolvent is put before his creditors' debts; then the debts are met from the rest of his property. ³ The order of debts after burial differs: for the Hanafis, if the debt is owed to people and several creditors claim, if all are debts of health, or all debts of sickness, the balance is divided by the proportion of each debt; if both kinds meet, the debt of health is preferred for its strength. ³

If a sick person acknowledges a debt for which there is no proof but his own word, it is a debt of sickness and has its rule, and in his acknowledgement the surplus over a third is weakened. ³ If he acknowledges a debt whose existence is known by observation, as the price due for property he owned or destroyed, it is a debt of health, since its obligation was known without his acknowledgement. ⁴

If the debt is one of God's rights, such as fasting, prayer, zakat, the pilgrimage, a vow or an expiation, it must be carried out from a third of his remaining property if the dead man willed it, after the debts owed to people; if he did not will it, it is not obliged. ⁴ The Malikis pay, after burial, the debts owed to people, then the pilgrimage offering of a deferred pilgrim who died after throwing the pebbles at the Aqaba, then the zakat al-fitr and the expiations he neglected if he had stated in health that they were owed, which come out of the capital whether he willed them or not. ⁴ The Shafi'is, after burial, pay the debts owed by the dead person from the capital, whether to God or to people, and the debt owed to God, such as zakat, precedes the debt owed to people; if the debts are attached to specific goods, they come before burial. ⁴ The Hanbalis, after burial, satisfy the pledgee, then the debts not attached to goods; the creditors' right attaches to the whole estate, and if the debts exceed it they share it in proportion to their debts, like the property of a bankrupt; then the bequest to a stranger is carried out from a third of what remains, and a bequest to an heir needs the consent of the other heirs. ⁴

The jurists agree that debt takes precedence over bequest, on the report from Ali that the Prophet decided that debt comes before bequest, and because the need of the deceased for debt absorbs what he has, as his burial costs do; then his bequests are carried out. ⁴ God mentions the bequest before the debt in the verse because the bequest resembles inheritance in being taken without a return, so it is hard for the heirs to pay and is apt to be neglected; the order there urges its fulfilment and shows that it is like debt in being obligatory. ⁵

After burial and debts, bequests are carried out from a third of what remains in all four schools, not from the capital, since what came before has been spent on his needs, and a third could otherwise take the whole remainder and deprive the heirs. ⁵ Khwahar-zadeh of the Hanafis said that a specified bequest comes before inheritance, while a general bequest, of a third or a quarter, is like an inheritance, so the legatee becomes a sharer with the heirs, gaining if the estate grows and losing if it shrinks. ^{5 6}

After burial, debts and bequest, the remainder is divided among the heirs whose right is established by the Qur'an, that is, those named in the verses of inheritance; by the Sunna, as the grandmothers' sixth; or by consensus, as the grandfather and the son's son and daughter. ⁶ A pillar (rukn) in the lexicon is the stronger side of a thing; in law it is part of a thing's reality. Inheritance in the sense of entitlement has three pillars: the one who leaves (muwarrith), who is the dead or one attached to them; the heir (warith), who is alive after the death or one attached to the living; and the estate (mawruth), which is not limited to property. If one pillar is missing there is no inheritance. ⁶

A man who dies leaving an heir but no property leaves nothing to inherit, since inheritance concerns property and what is more than property. ⁶ In usul a condition is what its absence necessitates absence, but whose presence does not necessitate presence. Inheritance has three conditions: the death of the testator, or his being counted as dead by judgment, as with the missing person declared dead by the judge, or by estimate, as with a foetus separated by a blow to its mother that requires a ghurra; the living of the heir after the testator's death, or his being counted as living, as with a child born alive; and knowledge of the basis of inheritance (marriage, kinship or patronage) and of the degree in which the deceased and the heir meet. ⁶ There are four causes of inheritance: three agreed, namely marriage, patronage and kinship, which the Hanafis call ties of blood (rahm), and a fourth disputed, Islam, by which, for the Malikis and Shafi'is, the treasury (bayt al-mal) inherits. ⁶ A blocker is what its presence necessitates absence. The blockers agreed among the four schools are three: slavery, homicide and difference of religion; the apostasy, difference of abodes and the constructive gap (al-dawr al-hukmi) are disputed; for the Malikis the uncertainty of the order of the deaths is a blocker, and for some Shafi'is mutual curse (li'an) between spouses. ⁶

The four schools agree that full slavery blocks inheritance, since what is in a slave's hand belongs to his master, so inheriting from his kin would pass the estate to the master without cause, which is void by consensus. ⁷

The four schools agree that homicide carrying retaliation blocks an adult sane killer from inheriting, when the killing is direct. They differ on what killing is meant, and on the cases of a child, a madman, a causer of death, and accidental killing. ⁷ The three imams and Abu Yusuf and Muhammad hold that wilful unlawful killing that carries retaliation is a person intending to kill an inviolable human and killing him by what probably causes death. Abu Hanifa holds that it is a sword-blow or what is like it in dividing the parts. The Hanafis hold that quasi-wilful and accidental killing also block inheritance, and that the causer of death, such as the digger of a well, and a child or madman killer, are not blocked. ^{7 8} The Hanbalis and, in the sounder view, the Malikis hold that the wilful killer, direct or by cause, is blocked from property and blood-money even if he is a child or a madman. The Shafi'is hold that anyone with any part in a killing is blocked, even if it was lawful, such as the executioner, the imam, the judge, the hangman or a witness. ^{7 8} If the testator is killed by retaliation, as a prescribed penalty or in self-defence, the heir is not blocked according to the Hanafis, Malikis and Hanbalis. ⁷ The Shafi'is' reason for blocking is fear that the heir would hasten to the inheritance, on the maxim that one who hastens a thing before its time is punished by being deprived of it. ⁸

Most jurists, with Ali, Zayd ibn Thabit (may God be pleased with him) and most Companions, hold that an unbeliever does not inherit from a Muslim, even if he converts before the estate is divided, since the inheritance was due at the death of the testator. Ahmad holds that a convert before the division inherits, on the report that whoever embraces Islam keeps what he has. ⁸ The four schools agree that a Muslim does not inherit from an unbeliever, on the report that people of different religions do not inherit from each other. Mu'adh, Mu'awiya, al-Hasan and others allowed a Muslim to inherit from an unbeliever, on the saying that Islam is exalted and is not exalted over. ⁹

There is no disagreement that an apostate inherits from no one, since his ruling is that he repents or is killed, and an apostate woman is confined until she repents. As to whether he is inherited from, the Malikis, Shafi'is and the well-known Hanbali view hold that his whole property becomes a fay' (booty) for the treasury if he dies or is killed as an apostate; Abu Yusuf, Muhammad ibn al-Hasan and one narration of Ahmad hold that his Muslim heirs inherit, citing the practice of Abu Bakr and Ali. ^{9 10}

When an apostate dies, his Muslim heirs inherit what he acquired while he was Muslim, but not what he acquired during his apostasy, which becomes fay' for the Muslims. ¹⁰ The reports from Abu Hanifa differ on who the heir is: al-Hasan's report makes it whoever was an heir at the time of apostasy and lived until the apostate's death, so one who became an heir after the apostasy does not inherit, since the cause is the apostasy and entitlement is completed by death. Abu Yusuf's report takes the heir present at the time of apostasy, whose right is not voided by his own death before the apostate's. Muhammad's report, which is the sounder, takes whoever is an heir at death or killing, since what arises after the cause has formed but before it is complete counts as present at its start. ¹⁰ Muhammad counted the apostate's flight to the enemy territory as his death, so his estate is divided from that flight. Abu Yusuf took the heir at the judge's ruling on the flight; the wife inherits if she is in her waiting period, on the view of the two companions, since the marriage was ended by apostasy but he fled from her inheritance, and a fleeing husband's wife inherits if she is still in her waiting period when he dies. ¹⁰

Among the Hanafis, and according to the sounder Shafi'i view and a Hanbali narration, unbelievers inherit from one another, being one community in face of the Muslims; a Jew inherits from a Christian and the reverse, and a Magian inherits from a Christian or a Jew and is inherited from by them. The opposing Shafi'i view says they are communities, so communities do not inherit from one another. The Malikis have a preferred view that Jews and Christians are each one community and all others are different communities. Ibn Abi Layla holds that Jews and Christians inherit from each other but Magians do not inherit from them and they do not inherit from Magians. ^{10 11} Those who forbid argue from the saying that people of two different communities do not inherit from each other, and from the verses that distinguish the communities. Ibn Abi Layla argues that Jews and Christians agree on monotheism and on Moses and the Torah, unlike the Magians. The Hanafis argue that God made religion two, truth and falsehood, and made people two parties, and that the disputants are two, so that all unbelievers are one community when faced with the Muslims. ¹¹

The jurists mean by difference of abodes a difference of protection (mana'a): an army and a separate rule and authority, so that the bond between them is cut and one may lawfully kill the other. ¹² It is agreed that Muslims inherit from one another however their lands and states differ, since the lands of Islam are one abode, and each Muslim's guardianship belongs to Islam. A Muslim in enemy territory who entered under safe conduct and returns is in the ruling of the abode of Islam; a real difference counts only when no ruling difference stands against it. ¹² For the Malikis, some Hanbalis and one Shafi'i view, the difference of abodes does not block inheritance between unbelievers, since there is no proof of blocking once its cause and condition are established. For Abu Hanifa, the sounder Shafi'i view and some Hanbalis, it blocks, since there is no support and alliance between them when their states differ, and alliance is the basis of inheritance. ¹²

For al-Shafi'i the constructive gap (al-dawr al-hukmi) is a blocker: that inheritance would entail its own absence. Thus a holder of property who, in appearance, acknowledges a person who would block him, as a full brother acknowledging a son of the deceased of unknown descent, establishes the descent but the son does not inherit, because if he inherited he would block the brother, who would then not be an heir, so his acknowledgement would be void, and descent would not be established, and so inheritance would not be established. Establishing inheritance leads to its denial, and what leads by its establishment to its negation is negated from the start. ^{12 13}

If the acknowledger holds the property and acknowledges someone who would block him by full exclusion, the descent and the inheritance are established, as when he acknowledges another son, brother or paternal uncle, because inheritance follows descent and descent is established. ¹³ If one of two sons who hold the estate acknowledges a third son and the other denies it, the third son's descent is not established, by consensus, and he does not inherit outwardly for want of descent; whether he shares inwardly is disputed. The sounder view of al-Shafi'i is that he shares in a third of what is in the acknowledger's hand, the view of the Hanbalis and Malikis, while the second view gives him half, the view of Abu Hanifa and one narration from Ahmad. ¹³

The estate is taken in order: the holders of fixed shares; then the agnatic residuaries by descent, and by the Hanafis the residuaries by cause; then those who take by return; then the blood-kin without fixed shares (dhawu al-arham); then the client by alliance; then the one acknowledged as kin by another; then the legatee of more than a third; and finally the treasury. Each of these classes has disagreements and detail. ^{13 14}

The fixed shares named in God's book are six: a half, a quarter, an eighth, two-thirds, a third and a sixth. ¹³ A half is named in three places: the share of one daughter, the share of the husband when there is no child, and the share of a full or paternal sister when the deceased has no child. A quarter is the husband's share with a child, and the wives' share with none. An eighth is the wives' share with a child. ¹³ Two-thirds is the share of two or more daughters, of two or more sisters, and of two or more daughters of a son when there is no daughter. A third is the mother's share with no child and no siblings, and the share of two or more uterine siblings. A sixth is the share of the parents with a child, of the mother with siblings, and of one uterine sibling. ¹⁴

Twelve persons take fixed shares: four men, the father, the true grandfather, the uterine brother and the husband; and eight women, the wife, the daughter, the son's daughter, the full sister, the paternal sister, the uterine sister, the mother and the true grandmother. ¹⁴ The two spouses are called holders of causal shares, since their inheritance is by marriage; the rest are holders of kinship shares, since kinship is called descent. Fixed shares may combine with residuary shares. Holders of fixed shares inherit when no one blocks them by full exclusion. ¹⁴

The father has three situations. First, he inherits only a fixed share, when the deceased leaves a male descendant, such as a son or son's son; he takes a sixth. Second, he takes both a fixed share and a residuary share, when the deceased leaves a female descendant, such as a daughter or son's daughter; he takes a sixth as a fixed share and then the remainder as a residuary. Third, he takes only as a residuary, when the deceased leaves no descendant at all, and takes the whole estate or what remains after the holders of fixed shares, on the verse of al-Nisa (verse 11) about the parents' sixth when there is a child. ¹⁴

The mother has three situations. First, she takes a sixth as a fixed share when the deceased leaves a descendant who inherits by fixed share or residue, or a plurality of siblings, on the verse of al-Nisa (verse 11). The word child covers male and female, one and many, and a son's child counts as a child. Siblings means two or more, from any side, even if they are themselves blocked. Ibn Abbas differed, holding that only three or more siblings block the mother, while the majority hold that two count as a plurality, as two daughters or two sisters take as a plurality, and that the plural is used for the dual in the Qur'an. ^{15 16} Mu'adh and al-Hasan al-Basri held that the mother is blocked to a sixth only by brothers or by brothers with sisters. ¹⁶ Second, she takes a third of the whole estate when the deceased leaves no descendant and no plurality of siblings, and no spouse, and only the father. ¹⁶ Third, she takes a third of the remainder after a spouse's share, when the deceased leaves the mother, the father and one spouse, with no plurality of siblings. These two cases are called the two cases of Umar, since he decided them; they are also called the gharrawiyya and the gharība. ¹⁶

The true grandfather is one whose relation to the deceased does not pass through a mother, such as the father's father however high. He is a holder of fixed shares and a residuary. He is blocked by the father; if the father is absent he takes his place and has the father's three situations when there are no siblings. ¹⁶ With siblings: the jurists agree that uterine siblings do not inherit with the grandfather. Full and paternal siblings inherit with him according to Malik, al-Shafi'i, Ahmad and the two companions of Abu Hanifa. Abu Hanifa makes the grandfather like the father, so he blocks the siblings, a view shared by Ibn Jarir al-Tabari, al-Muzani and Abu Thawr. Abu Hanifa argues that the grandfather is a father, called father in the Qur'an and Sunna, and is nearest to the deceased; only the father blocks him; and the grandfather and the brothers are of the same degree through the father. Their opponents argue that the siblings' inheritance is established by text and no text bars it, and that the grandfather does not replace the father in all rulings, as for a minor. ¹⁷

The Qur'an and the Sunna give no measure for the grandfather's share with siblings; the ruling rests on the ijtihad of the Companions. ^{17 18} Ali's well-known view is that the grandfather takes what remains after the shares of the sisters when there is no brother with them, as long as it is not less than a sixth; otherwise he takes a sixth. He also held the grandfather as one of them at all times. ¹⁸ Zayd ibn Thabit's view is that the grandfather residues the siblings in every case; he shares with them as a full or paternal brother, provided his share is not less than a third of the estate. This is the view of Malik, Ahmad, Abu Yusuf and Muhammad; the Shafi'is limit it to the absence of a fixed-share holder, and where one is present the grandfather may choose among three: sharing, a third of the remainder, or a third of the whole. ¹⁸ Ibn Mas'ud's view is that the grandfather takes the remainder after the shares of sisters who stand alone without a brother or an heir in the line, provided his share is not less than a third, since with the daughters of the deceased alone his share is not less than a third, and a brother should be treated no worse than that. ¹⁸

Abu Hanifa excepted two cases from making the grandfather stand in the father's place in inheritance and blocking: first, a husband, a mother and a grandfather, where the mother takes a third of the whole estate, though with a father she would take a third of the remainder; second, a wife, a mother and a grandfather, where the mother takes a third of the whole. The scholars of dictation report from Abu Yusuf that on the view of Abu Bakr al-Siddiq (may God be pleased with him) the mother takes a third of the remainder in both cases, which the people of Kufa report from Ibn Mas'ud, while the people of Basra report otherwise. ¹⁸

Grandmothers are of two kinds: true grandmothers, whose relation to the deceased does not pass through a father, or who connect through an agnate or a fixed-share holder, such as a mother's mother; and false grandmothers, who connect through one who is neither an agnate nor a fixed-share holder, such as a mother's father's mother. ¹⁹ Inheritance for the grandmother is not in the Qur'an; it is established by the well-known Sunna, as in the report of al-Mughira ibn Shu'ba that the Prophet gave the grandmother a sixth, and by the consensus of the Companions and later scholars. A true grandmother is a holder of a fixed share, a false one is among the blood-kin without fixed shares. ¹⁹ A true grandmother has two situations. First, she takes a fixed sixth, which one grandmother takes alone and several grandmothers share. If a grandmother with two lines of descent is with one with a single line, Abu Yusuf, the Malikis and, in the sounder view, the Shafi'is have them share the sixth equally; Muhammad, Zufar and al-Hasan ibn Ziyad divide it into thirds, two-thirds for the one with two lines and a third for the other. ¹⁹ Second, all grandmothers are blocked by the mother, since the maternal grandmothers connect through the mother, and the paternal ones are weaker and are blocked by the mother too; paternal grandmothers fall away by the father, the view of Uthman, Ali, Zayd and others. The nearer grandmother blocks the more distant one from any side, according to Ali and the Hanafis; according to a second narration from Zayd, the nearer on the father's side and the more distant on the mother's side are equal, while the sounder Shafi'i view is that the nearer on the father's side does not block the more distant on the mother's side. ²⁰

The Qur'an states the inheritance of spouses. The husband takes half of his wife's estate by fixed share if she leaves no inheriting descendant, and a quarter if she has one, whether from him or from another. The wife inherits only by fixed share: a quarter if her husband leaves no inheriting descendant, and an eighth if he does. One wife takes the quarter or the eighth alone, and several wives share it. ^{20 21} Inheritance by marriage needs two conditions. First, the marriage is valid: if the contract is void there is no inheritance, according to Abu Hanifa, al-Shafi'i and Ahmad; Malik holds that where the defect is agreed, as marrying a fifth wife while having four, there is no inheritance, while where it is disputed, as marrying without a guardian, inheritance stands if one dies before the annulment. Second, the marriage exists at death, in fact or by ruling, as when a woman in a revocable divorce is in her waiting period; a wife divorced irrevocably inherits nothing, unless the husband who caused the separation is treated as fleeing inheritance by divorcing in his last illness. ²¹

The Qur'an gives the law of the daughters of the deceased (al-Nisa, verse 11). There are three situations for daughters of the body. First, when there is a son or sons with them, all are residuaries, the male taking the share of two females; they take the whole estate if there are no fixed-share holders, or the remainder after them. Second, when the deceased has two or more daughters and no son, they take two-thirds of the estate equally; the case of the two daughters of Sa'd ibn al-Rabi' after his death at Uhud is the report on which two daughters are given two-thirds. ²¹

The four schools and all the Companions agree that two daughters take two-thirds, on the report of the two daughters of Sa'd ibn al-Rabi' after his death at Uhud. ²² It is reported from Ibn Abbas that two daughters are ruled as one, taking a half, but he withdrew this, and al-Shanshuri reports consensus against the report. ²² A single daughter takes a half by fixed share if no agnate male, such as the son of the deceased, takes with her. ²²

A son's daughter is any daughter who connects to the deceased through a son, however far down. She has six situations: three when she stands in the place of a daughter of the body, namely one who takes a half if alone with no agnate, two-thirds if there are several with no agnate, or residue if there is an agnate with her; and three when she does not stand in that place because a nearer descendant exists, namely a sixth to complete two-thirds with a daughter of the body, unless an agnate is with her; nothing when two or more daughters of the body or nearer granddaughters are present; or nothing when a son or a nearer son's son is present. Ibn Mas'ud differs in the second case, holding that son's daughters do not inherit with a son's son. ^{23 24}

Full sisters have five situations, established by the Qur'an, the Sunna and consensus. A half for one who stands alone with no blocker or full brother, and two-thirds for two or more when no full brother is with them; the verse of kalala (al-Nisa 176) gives these. When sisters exceed two they take two-thirds, by analogy with daughters. ²⁴ The third situation is a full brother with them, when they take the residue with him, the male taking the share of two females. The Malikis and Hanbalis hold that a full sister becomes residuary by the grandfather when there is no brother to make her one. ²⁴ The fourth is when the full sister is a residuary with another, when the deceased leaves a female descendant heir: the daughter takes a half and the sister takes the residue by agnation, a ruling given by Abd Allah ibn Mas'ud as a judgment of the Prophet. ²⁴ The fifth is exclusion, when the deceased leaves a male descendant or a father. ²⁴

Paternal sisters have seven situations. A half for one when there is no full sister or paternal brother to make her a residuary; two-thirds for two or more when there is none; and a sixth for one or more with one full sister to complete two-thirds, since the full sister's share is a half, so the paternal sister takes a sixth to complete two-thirds, unless a paternal brother is with her, when he makes her a residuary. ²⁴

A paternal sister is blocked by two full sisters unless a paternal brother is with her, when the two take the residue, the male taking the share of two females. She is blocked by the father, the son, the son's son however low, the full brother, and the full sister when the full sister becomes a residuary with a daughter or son's daughter, since in this case the full sister is like a full brother as a nearer residuary. ²⁵

By uterine siblings is meant the deceased's brothers and sisters from the mother's side only. They always inherit by fixed share and never as residuaries, since their kinship is through the mother alone, so they do not become residuaries alone or with others. Males and females among them are equal, since preference of the male belongs to residuary status, which is absent in kinship through the mother. ^{25 26} They have three situations: a sixth as a fixed share for one, male or female, when the deceased has no inheriting descendant and no inheriting male ascendant; a third as a fixed share for two or more, shared equally, when there is no inheriting descendant or male ascendant; and blocking by the son, the son's son, the daughter, the son's daughter, the father and the grandfather. ²⁵ The proof is the verse of kalala (al-Nisa 12), which means the uterine siblings by consensus, and the reading of Ubayy and Sa'd ibn Abi Waqqas with the addition "from the mother". ²⁵ The equality of male and female, and the rule that their share does not exceed a third, rest on the same verse, which says that if they are more than one they share in the third. ²⁵

The lexical sense of 'asaba is a man's sons and his kin on his father's side, so called because they surround him. In law, an agnate by himself takes the whole estate if alone, or what remains after the fixed shares, and this is the sense meant when the word is used alone; al-Fanari in his commentary on al-Sirajiyya defines him as any male whose connection to the deceased does not pass through a female, so uterine siblings are not agnates. ²⁶ Agnatic kin are of three kinds: agnate in himself, agnate by another, agnate with another. There is also the causal agnate, the freed slave and his male agnates. ²⁶ The agnates in themselves are four classes: the deceased's own offspring, then his origin, then his father's offspring, then his grandfather's offspring; within them the nearer comes first. Thus the sons come first, then their sons however low, then the father, then his father however high, then the brothers, then their sons, then the paternal uncles, then their sons, then the uncles of the father, then the uncles of the grandfather. The father and the grandfather count in one class. ^{26 27} The Malikis and Shafi'is count seven classes: sonship, fatherhood, grandfatherhood with brothers, the sons of brothers, paternal uncles, the client, and the treasury. ²⁷ If the agnate is one, he takes the whole estate when there is no fixed-share holder, or the remainder. If the classes differ, the class of sonship comes first. If they are in one class, the nearer in degree comes first; then the stronger kinship, so a full brother before a paternal brother; if all are equal they share. ²⁷

Four women become agnates by another: the daughter of the body, the son's daughter when there is no daughter, the full sister, and the paternal sister when there is no full sister, who become agnates through their brothers of their own strength. The son's daughters are also made agnates by their paternal cousins of their degree, and the sisters by their brothers' sons and their cousins' sons if they need them in inheritance. ^{27 28} The Malikis and Hanbalis hold that a sister becomes an agnate by the grandfather when no brother makes her one. ²⁷ The basis is the two verses on the daughters and the siblings (al-Nisa 11 and 176), in which a male takes the share of two females. A female without a fixed share, such as a niece or an aunt, is not covered by the text, so she does not become an agnate by her brother or her uncle. ²⁷

A residuary with another is any female who becomes a residuary with another female: the full or paternal sister with a daughter, whether a daughter of the body or a son's daughter, one or several, on the report "make the sisters residuaries with the daughters". ²⁸ The difference from residuary through another is that the one who makes another residuary is himself a residuary by self, so the status of residuary passes through him to the female; in residuary with another there is no residuary by self at all. ²⁸

The jurists agree that a freed slave, male or female, inherits all the property of the one who freed him, or what remains, if the two share the religion, and the freer leaves no heir, or leaves one who takes only part. If their religions differ, the majority hold that there is no inheritance between them; the sounder Hanbali view is that a Muslim inherits from his unbelieving freed slave by client-right, and the reverse. ²⁸

The contract of alliance (muwala) is a cause of inheritance for the Hanafis, ranked after the client by manumission. Whoever embraced Islam at another's hand, allied himself and made the contract, and dies leaving no other heir, has his estate. This is reported from Umar, Ibn Mas'ud, al-Hasan and Ibrahim al-Nakha'i. They rely on the verse of the contract, which they hold is not abrogated, and on the report of Tamim al-Dari (may God be pleased with him) that the convert at another's hand is the nearest of people to his life and death. ^{28 29} Malik, al-Shafi'i, Ahmad, Ibn Shubruma, al-Thawri and al-Awza'i hold that his estate goes to the Muslims. The Malikis rely on the saying that the client-right belongs to the one who frees. ^{28 29} Al-Hasan held that the verse on the contract was abrogated by the verse of al-Ahzab (verse 6) on the kindred, and Mujahid held that the duty owed to such a person is the blood-money, support and assistance. ²⁹

The treasury (bayt al-mal) is the body to which every property the Muslims are entitled to goes when its owner among them is not fixed, such as spoils; the Shafi'is also call it the Islamic side. ²⁹ For the Hanafis, the Hanbalis and an isolated Maliki view, the treasury is not an heir; the estate or what remains of it goes to it as property with no owner, like a lost find, and it is spent on public good; al-Muzani and Ibn Surayj among the Shafi'is agree. ²⁹ For the Malikis and Shafi'is the treasury is an agnate, ranked after the freeing patron, and it inherits the whole or the remainder as an agnate by blood does. ²⁹ The later jurists ruled that when the treasury's affairs are not in order, as when the imam is absent or unjust, the remainder goes to the holders of fixed shares, since the estate's destination is limited to them and the treasury; when the treasury is unavailable they are determined. ²⁹

Blocking (hajb) in the lexicon means preventing; a veil is so called because it prevents seeing, and a doorkeeper is called hajib because he prevents entry. ²⁹

Blocking, in the definition of the author of al-Sirajiyya, is preventing a particular person from inheriting, wholly or in part, by the presence of another person; the definitions in the other schools do not depart from this. ³⁰ Blocking is of two kinds. Blocking by an attribute is what the scholars of inheritance call a bar, such as the killer's exclusion from inheritance. Blocking by a person is the sense meant when the word is used alone, and it has two kinds. Blocking by exclusion (hirman) is when one person drops another altogether; it does not touch six heirs by consensus, namely the two parents, the two spouses and the children, the rule being that anyone who connects to the deceased directly is excluded only by a nearer heir, except the freer. Blocking by reduction (nuqsan) is passing from a larger share to a smaller one; it touches five heirs: the husband from a half to a quarter by a child or a son's child; the wife from a quarter to an eighth by a child; the mother from a third to a sixth by a child or son's child or two or more siblings; the daughter of a son with a daughter of the body from a half to a sixth to complete two-thirds; and the paternal sister with a full sister from a half to a sixth. ³⁰ The barred by an attribute, that is, one who is excluded by a bar, does not block others, either by exclusion or by reduction, according to the majority of jurists including the four imams, because his existence is like his absence. Ibn Mas'ud differs in blocking the spouses and the mother by a child, and in the case of unbelieving siblings, slaves and killers, and Dawud al-Zahiri followed him in the three, while al-Hasan al-Basri, al-Husayn ibn Salih and Ibn Jarir al-Tabari hold it for the killer only. ³⁰

The jurists set rules for blocking. The first is that one who connects to the deceased through an heir is excluded when that heir is present, since the nearer has the better claim, the distant being connected only through the near, and whoever stands in place of the source does not inherit while the source exists. This rule holds for the agnates without exception: the father blocks the grandfather, and the full brother blocks the son of a brother. It holds for many holders of fixed shares: the father blocks the grandfather from his share, and the mother blocks the mother's mother. It does not hold in some cases of the holders of fixed shares, such as the uterine siblings with the mother, who inherit with her, and when they are several they reduce her share; and the father and the grandfather block them, though they are not connected through them, because the text limited their inheritance to the case in which there is no source and no descendant. ^{29 30}

The second rule is that the nearer blocks the more distant when both are entitled by their kind and character. It is wider than the previous rule, since it covers the distant one who connects through a nearer one and the one who does not connect through him at all: a son blocks a son's son though he is not his father, two daughters block a son's daughter from the fixed share, a brother blocks an uncle though the uncle does not connect through him, and a nearer grandmother blocks a more distant one though she does not connect through her. This rule applies alike to agnates and holders of fixed shares. ³¹ The third rule is that the stronger kinship blocks the weaker: a full brother blocks a paternal brother, and a paternal sister does not take a half with a full sister. This holds in every case where the degree is the same and the strength of kinship differs; where the degree is the same, blocking follows the nearer. ³¹

In the lexicon awl means increase; the calculation of the shares "increased" when the sum of the fixed shares exceeds the basic unit by its fractions. In law it is the excess of the shares of the fixed shares over the root of the problem, which reduces each heir's share in proportion; for example a woman who dies leaving a husband, a mother and a full sister, where the husband takes a half, the mother a third and the full sister a half, so the shares exceed what the estate can be divided into. ^{30 31} This was the first case of awl in Islam, in the early caliphate of Umar, and the Companions were consulted; he said he did not know which of them God had put forward and which He had put back, since if he began with the husband the sisters would lose their due, and if with the sisters the husband would. Al-'Abbas ibn Abd al-Muttalib advised him, by the well-known report, or Ali ibn Abi Talib (may God be pleased with him) or Zayd ibn Thabit in other reports, to adopt awl, and Umar ruled by it. It is related from Ibn Abbas that Umar was the first to apply awl when the shares clashed and pressed on one another; he divided the estate by proportion and entered into each share's due what the awl brought in, and none disagreed until the caliphate passed to Uthman, when Ibn Abbas expressed his disagreement. ³¹

Those who hold awl argue that the heirs are equal in the cause of entitlement, so each takes his full due if the estate is ample, and if it is short they share it proportionally like creditors; no one's right may be dropped; this is the view of the four imams. ³² Ibn Abbas argues that the rights in property are not equal, so when the estate falls short the stronger takes precedence: one who moves from a fixed share to another fixed share is a holder of a fixed share in every respect, so he is stronger than one who moves to a share not fixed, who is a fixed-share holder in one respect and a residuary in another; so reducing him is better, since holders of fixed shares come before residuaries. ³² By induction, the roots of problems that undergo awl are those whose root is six, twelve, or twenty-four. ³² A root of six may increase to seven, eight, nine or ten: a husband and two full sisters make seven; a husband, two paternal sisters and a mother make eight; a husband, two full sisters and two uterine brothers make nine; and a husband, a full sister, a paternal sister, two uterine brothers and a mother make ten. ³² A root of twelve may increase to thirteen, as a wife, a mother and a paternal sister; to fifteen, as a husband, two daughters, a mother and a father; and to seventeen, as a wife, a mother, two paternal sisters and two uterine brothers. ^{32 33} A root of twenty-four increases only to twenty-seven, as a wife, two daughters, a mother and a father. ³³ Other roots, namely two, three, four and eight, do not undergo awl: two cannot, since the problem from two is two halves or a half and the rest; three cannot, since the output is a third and the rest, or two-thirds and the rest, or a third and two-thirds; four cannot, since the output is a quarter and the rest, a quarter and a half, or a quarter and a third; and eight cannot, since the output is an eighth and the rest, or an eighth and a half. ³³

Radd in the lexicon means return. In law it is handing back the excess of the fixed shares of the holders of kinship shares to them in proportion to their rights, when no other heir has a claim. Return happens only if two conditions hold: the fixed shares do not exhaust the estate, since if they do nothing remains to return; and there is no agnate, by kinship or cause, on the question of this; if there is an agnate, even a holder of a fixed share such as the father or grandfather, he takes the remainder as a residuary after the fixed share. ³³ Return is disputed among the Companions, who divided into two camps. One camp holds that the excess returns to the holders of fixed shares, and it is followed by Abu Hanifa and, in the better-known of his two reports, Ahmad, though they differ on whom it returns. Ali held that it returns to the holders of fixed shares in proportion to their shares, except the two spouses, which is the Hanafi view and the sounder Hanbali view; Uthman held that it returns to the two spouses too. ³³

Uthman held that the excess returns to the two spouses as well, since the sheep is for the one who bears the loss: as their shares are reduced by awl, they should be increased by return. ³⁴ Ibn Mas'ud held that the excess returns to the holders of fixed shares except six: the two spouses, the son's daughter with the daughter of the body, the paternal sister with the full sister, the uterine siblings with the mother, and the grandmother with any fixed-share holder. Another report from Ahmad excepts only the spouses, the uterine siblings with the mother and the grandmother with a fixed-share holder. Ibn Abbas held that it returns to the holders of fixed shares except the two spouses and the grandmother. ³⁴ Later Shafi'i scholars, from the fifth century on, agreed that the excess returns to the holders of fixed shares and that the blood-kin inherit when the treasury is not in order, that is, when there is no imam at all or when he lacks some of the conditions of office. ³⁴

Those who hold return for other than the spouses have several arguments. The first is the verse on the blood-kin in al-Anfal (verse 75): its sense is that some of them are nearer to the inheritance of others by ties of blood, so the blood-kin deserve the whole inheritance by kinship; the spouses are excluded because they have no blood tie. ³⁴ The second is the report of Sa'd ibn Abi Waqqas, who said that only a daughter would inherit from him and asked whether he might will all his property; the Prophet forbade him more than a third, which shows that the daughter takes what exceeds her half by return. ³⁴ The third is that the Prophet gave a mother who is in a li'an the whole of her child's property, which can only be by return. ^{34 35} The fourth is that the holders of fixed shares share with the Muslims in Islam and are preferred by kinship; though kinship does not make a residuary, it gives preference, as the mother's kinship gives preference to a full brother over a paternal one, so the remainder returns to them in proportion to their shares, and as the nearer and stronger are disregarded in the root of the problem they are disregarded in return too. ³⁵

Another camp holds that nothing returns to any holder of a fixed share. If the fixed shares do not exhaust the estate and no residuary is found, the remainder goes to the treasury, since they do not hold that the blood-kin inherit or that return happens. Zayd ibn Thabit held this, and it was taken by Urwa, al-Zuhri and the imams Malik and al-Shafi'i. Some Malikis restrict the payment to the treasury to a case where the imam is just and spends the money on its lawful purposes; if he is not just, the excess returns to the holders of fixed shares, and if they are absent, to the treasury. ³⁵ Those who refuse return argue from the verse on inheritance, that the fixed amount stated by the text forbids adding to it, since adding goes beyond the lawful limit; and that the excess over the fixed shares is property with no heir, so it goes to the treasury, since return can be on no ground: not that of the fixed share, nor of residuary status, nor of kinship, since each of these gives precedence to the nearer. ³⁵

Return cases fall into four kinds, according to whether one or several of those who take the return are present, and whether one who does not take the return is present. ³⁶ If there is one kind of return-taker and no one who does not take return, the root is the number of heads, as with two daughters, two sisters or two grandmothers, and each takes half the estate. ³⁶ If two or three kinds of return-takers are present, the root is the sum of their shares, as with a grandmother and a uterine sister, or two uterine siblings with a mother. ³⁶ If a non-return-taker such as a husband or wife is present with return-takers, the non-return-taker's fixed share is taken from the smallest root, and the rest is divided by the number of the return-takers' heads, with correction where the division does not come out even: a husband with three daughters, or a husband with five daughters. ^{36 37} If several kinds of fixed-share return-takers are present with a non-return-taker, the root is the root of the spouse's share, the spouse takes his share from it, and the rest is divided among the return-takers in proportion to their fixed shares, with the correction as before: a wife, a mother and two uterine brothers, or a wife, a mother and two granddaughters. ³⁷

Rahm in the lexicon is the womb and kinship, and in the language of the scholars of inheritance it means every relative who is neither a holder of a fixed share fixed in the Qur'an, the Sunna or consensus, nor an agnate who takes the whole estate when alone. ³⁷ The Companions and later jurists disagreed on whether the blood-kin inherit. Those who gave them inheritance among the Companions include Ali, Ibn Mas'ud and, in the best-known report, Ibn Abbas, with Mu'adh ibn Jabal, Abu al-Darda' and Abu Ubayda ibn al-Jarrah (may God be pleased with him); among the Successors, Shurayh, al-Hasan, Ibn Sirin, Ata' and Mujahid. Those who denied it include Zayd ibn Thabit, a report from Ibn Abbas, Sa'id ibn al-Musayyib and Sa'id ibn Jubayr; the denial is attributed to Abu Bakr, Umar and Uthman, but that is not sound, and Abu Hazim the judge told al-Mu'tadid that the Companions other than Zayd agreed on their inheritance. ^{37 38} The least that can be said is that giving them inheritance is an addition to God's book, which is not established by a single report or by analogy; and there is the report that the Prophet was asked about the inheritance of the paternal and maternal aunts and said that Gabriel told him there is no inheritance for them. ³⁸ The proponents rely on the verse of al-Anfal (verse 75) that some of the blood-kin are nearer to others: it establishes their entitlement by the general attribute of kinship when the particular attribute of fixed share or agnation is absent, and there is no conflict between the two. They also rely on the report that God and His Messenger are the patron of him who has no patron, and that the maternal uncle inherits from him who has no heir. ³⁸

The blood-kin fall into four classes. The first is those who connect to the deceased: the children of daughters however low, and the children of a son's daughter. The second is those to whom the deceased connects: the kin-grandfathers and kin-grandmothers however high. The third is those who connect to the deceased's two parents or one of them: the children of sisters, the daughters of brothers, and the uterine brothers' children, however low. The fourth is those who connect to the deceased's two grandfathers or grandmothers or one of them; it covers paternal aunts in general, maternal uncles, cousins on the father's side and the maternal side, the maternal aunts, and their children however low. ³⁹

The report from Abu Hanifa differs on the order. Abu Sulayman's report from Muhammad, from Abu Hanifa, puts the second class first, then the first, the third and the fourth. The report of Abu Yusuf, al-Hasan ibn Ziyad and Ibn Sama'a puts the classes in the order of the agnates: the first, then the second, third and fourth, and this is the view taken for fatwa. The two reports are reconciled by taking the first as Abu Hanifa's earlier view and the second as his later one. ³⁹ Abu Yusuf and Muhammad hold that the third class comes before the maternal grandfather. ^{39 40}

The nearest of the first class comes first: a daughter's daughter before a son's daughter's daughter, since the first connects through one link and the second through two. If they are equal in degree, the child of an heir comes before the child of one who takes by kinship, as a son's daughter before a daughter's son, because the child of an heir is nearer in law, and preference goes by real nearness where it exists, otherwise by nearness in law. ⁴⁰ If their degrees are equal and none is the child of an heir, or all of them connect through an heir, Abu Yusuf and al-Hasan ibn Ziyad look at the persons of the descendants and divide by their maleness and femaleness only, so that a male takes the share of two females, without regard to their connecting parents' sex; this is a deviant report of Abu Hanifa. Muhammad looks at the persons if the connecting parents share the same sex, and at the parents if they differ, which is one of Abu Hanifa's two views. ⁴⁰ Abu Yusuf's reason is that the descendants' entitlement is by kinship, not by any quality in others, so the entitlement is equal even when the parents' sex differs, just as disbelief or slavery is not counted in the one through whom one connects. ⁴⁰

When the children of daughters are equal in degree but belong to different generations, Muhammad divides the estate first by the generation in which the parents differ in sex, the male taking the share of two females, and then makes the males of each generation one group and the females another. What falls to the males is divided and passes to their descendants by their characters, so the daughter of a son's daughter takes two-thirds, being her father's share, and the son of a daughter's daughter takes one-third, being his mother's share. ⁴¹ The shaykhs of Bukhara followed the view of Abu Yusuf in the cases of the blood-kin, since it is easier. ⁴¹

The second class consists of the kin-grandfathers and kin-grandmothers. The nearer of them comes first, from whichever side, father's or mother's; so the maternal grandfather comes before the maternal grandmother's father. ⁴¹ When degrees are equal, Abu Sahl al-Faradi, Abu Fadl al-Khaffaf and Ali ibn Isa al-Basri prefer the one who connects through an heir: the mother's grandmother's father connects through a true grandmother, while the mother's father does not inherit with the mother. Abu Sulayman al-Jawzajani and Abu Ali al-Busti make no preference, and divide the estate in thirds in their example: two-thirds to the mother's father's father and one-third to the mother's mother's father, since preferring by connection through an heir would make the root follow the branch, which is unreasonable. ⁴¹ If the degrees are equal but the sex of the connecting parents differs, the estate is divided at the first differing generation as in the first class, the male taking twice the female. If the kinship of the connecting parents differs while the degrees are equal, two-thirds go to the paternal kinship and one-third to the maternal, since those who connect through the father stand in his place and those through the mother in hers. ⁴² The rule is that the nearer comes first when degrees differ; when they are equal and the kinship and roots are the same, the division is by persons of the descendants; when they differ, the estate is divided by the disagreement, as in the first class. ⁴²

The third class consists of the children of sisters, the daughters of brothers in every case, and the children of uterine brothers. The nearest in degree comes first: a sister's daughter before a brother's son's daughter, because she is nearer. If they are equal in degree, the child of an agnate comes before the child of a blood-kin, as a brother's son's daughter before a brother's daughter's son, since she is the child of an agnate, so the whole estate is hers. ⁴² If the two are children of blood-kin but of different kinds, as a brother's son's daughter and a uterine brother's daughter's son, the estate goes to the male taking the share of two females according to Abu Yusuf, since the principle in inheritance is to prefer the male, and that principle was departed from for uterine siblings only by a text against analogy, which cannot be extended to what is not like it in every respect. Muhammad holds the estate is divided equally between them, by persons. ⁴²

When the third class contains children of full brothers, children of paternal brothers and children of uterine brothers together, Abu Yusuf takes the strongest kinship first: the estate goes first to the children of the full brothers, then to the children of the paternal brothers if there are none, then to the children of the uterine ones, the male taking the share of two females. If they are equal in strength the estate is divided by persons. Muhammad divides the estate among the brothers and sisters as if they were the heirs, counting the number of descendants and the lines, and then divides what falls to each group among its descendants. ^{43 44}

The fourth class consists of those who connect to one of the deceased's two grandfathers or grandmothers: paternal aunts in general, maternal uncles, and maternal aunts in general. When one of them stands alone he takes the whole estate, since there is no rival. When they are together on one side, the one of stronger kinship takes first by consensus: a full sibling before a paternal one, and a paternal before a uterine one, whether the nearer is male or female. ⁴⁴ If they connect through two different sides, strength of kinship is not counted: if the deceased leaves a full paternal aunt and a uterine maternal aunt, two-thirds go to the paternal side and one-third to the maternal side. ⁴⁴ If they include males and females from one side and of the same strength, the male takes the share of two females, because the uncle and aunt share one root, the father, and the maternal uncle and aunt share one root, the mother; and where the root is the same, division is by persons according to all the jurists. ⁴⁴

The rule above does not pass to their children, since the nearest of the children inherits first, from whichever side. The daughter of an aunt, or her son, comes before the daughter of an aunt's daughter's child. If they are equal in nearness and their connection is on one side, the one with stronger kinship comes first by consensus: if the deceased leaves three children of three different paternal aunts, the whole estate goes to the child of the full aunt, then to the child of the paternal aunt, then to the child of the uterine aunt. If they are equal in degree and strength and on one side, the child of an agnate comes first, such as the daughter of a paternal uncle before the son of a full paternal aunt. ⁴⁴

When some of the children of the fourth class connect through the father and some through the mother, and they are equal in nearness, neither the strength of kinship nor the child of an agnate counts in the apparent report; so the child of a full aunt is not preferred to the child of a full maternal uncle, and the estate is divided two-thirds to the paternal kinship and one-third to the maternal. ⁴⁵ Then, for Abu Yusuf, the portion of each side is divided among the persons of its descendants; for Muhammad, the estate is divided by the first generation in which the sides differ. ⁴⁵ These are the rules for the inheritance of the blood-kin in the school of the family (ahl al-qarabah). ⁴⁵

Substitution means that a blood-kin who connects to the deceased through an heir stands in that heir's place: the children of daughters, of sons' daughters and of sisters are treated as their mothers; the daughters of brothers and the daughters of full or paternal uncles are treated as their fathers; the children of uterine brothers and of uterine paternal uncles as their fathers. Among those who held it are Alqama, al-Sha'bi, Masruq, Na'im ibn Hammad, Abu Nu'aym and Abu Ubayd al-Qasim ibn Sallam; al-Shafi'i and Ahmad in his other report adopted it, excepting two cases: the maternal uncle and aunt stand in the mother's place, and the uterine paternal uncles and the paternal aunt stand in the father's place. ⁴⁵ The two imams preferred it because it is the view of the Companions and those after them who gave the blood-kin inheritance. For instance, if the deceased leaves a daughter's daughter and a son's daughter's daughter, the estate is divided by substitution, three-quarters to the first and one-quarter to the second, by fixed share and return. ^{45 46} As in the school of the family a blood-kin who stands alone takes the whole estate, the school of substitution makes the descendants stand in the place of their roots and take their shares: if they connect through a residuary they take his share as residuaries; if through a holder of a fixed share they take his share by fixed share and return, and divide equally among male and female according to Ahmad, since they inherit by mere kinship, while al-Shafi'i has the male take the share of two females. ⁴⁶

Those who equalise do not distinguish between one class and another, one degree and another, or strong and weak kinship; so the daughter of a sister and a son's daughter's daughter inherit equally, and likewise a son of a sister and a daughter of a brother's son. The cause of inheritance is the blood tie, which is found in all of them in a shared measure. Among the advocates of this view were al-Hasan ibn Maysar and Nuh ibn Darraj, and none of the established schools adopted it. ⁴⁶

All who give the blood-kin inheritance agree that when they are with a spouse each takes his full share: the husband is not reduced from a half to a quarter, and the wife not from a quarter to an eighth, by any blood-kin, since the spouses' shares are fixed by text while the blood-kin's inheritance is not; what remains after the spouse's share goes to the blood-kin. ⁴⁶ They differ on how it is done: the family school takes the spouse's share first and divides the rest among the blood-kin as if they stood alone; the school of substitution has two views, the sounder being that of the family school, a view attributed to Ahmad, Abu Ubayd, Muhammad ibn al-Hasan and al-Hasan ibn Ziyad al-Lu'lu'i; the other divides the remainder by the shares of those through whom they connect. ⁴⁶

One heir may have two causes of inheritance. If both are by residuary status, he inherits by the stronger: a woman who dies leaving a son who is also her paternal cousin's son takes the estate as a son, since sonship comes before paternal kinship. If the two causes differ and each gives an inheritance, he inherits by both: two uterine brothers, one of whom is also a full paternal cousin, take a third by fixed share equally between them, and the cousin takes the remainder as a residuary. One may also be blocked by one cause and inherit by the other: a daughter and two full paternal cousins, one also a uterine brother, leave the daughter a half by fixed share and the rest to the two cousins as residuaries, while the uterine brother gets nothing as a brother because the daughter blocks him. ⁴⁷

Disagreement arises when some blood-kin connect through a fixed-share holder and others through a residuary. If a woman dies leaving a husband, a daughter's daughter, a maternal aunt and a full or paternal cousin, the family school gives the husband a half and the rest to the daughter's daughter alone; the school of substitution gives the husband a half, the daughter's daughter half of the rest, the aunt a sixth of the rest and the cousin the remainder, and the case comes to twelve. ⁴⁷

The khuntha in the lexicon is one who has both the male and female, and in law one who has the male and female organs together, or neither. Hermaphrodites are either clear, where signs of male or female appear and the person is a man or woman with an extra organ, or unclear. ^{47 48}

The inheritance and rulings of a khuntha follow the signs that appear. The jurists take the place of urine as the mark. Ibn al-Mundhir said that all the scholars he knew agreed that the khuntha inherits from where he urinates: if he urinates as a man does he is a man, and if as a woman does, a woman. This is reported from Ali, Mu'awiya, Sa'id ibn al-Musayyib, Jabir ibn Zayd and the people of Kufa. A report from Ibn Abbas on the matter is counted among the fabrications by Ibn al-Jawzi. Urination is the most general mark, since it appears in children and adults, whereas other marks appear only after maturity. If he urinates from both, the earlier is taken according to the majority. If both come together, Ahmad in one report says he inherits from where the greater quantity comes; Abu Hanifa held back; al-Shafi'i in one of his views did not count it; if the quantities are equal, Abu Yusuf and Muhammad say they have no knowledge of it, and the Hanbalis say it is unclear. ⁴⁸

The majority hold that the matter is suspended until he reaches maturity, when the marks of men appear, such as the beard and emission of semen, or those of women, such as menstruation, pregnancy and the swelling of the breasts. If the division must be made before then, the khuntha and the other heirs take the certain share, the rest is held back until he matures, and the estate is worked out first on the assumption that he is male and then on the assumption that he is female, and each heir is given the smaller of the two shares. ⁴⁸

If he dies before maturity, or matures without any sign appearing, the Hanbalis give him half of a male's share and half of a female's, the view of Ibn Abbas, al-Sha'bi, Ibn Abi Layla, the people of Medina and Mecca, al-Thawri, Abu Yusuf and others. Abu Hanifa gives him his worst case and divides the rest among the other heirs; al-Shafi'i and those with him give him the certain share and hold back the rest until it is clear. ^{48 49}

If the khuntha reports menstruation, emission of semen, or inclination to men or women, the report is accepted, and he may not later retract it unless his falsity is clear beyond doubt, as when he says he is a man and then gives birth; then his earlier statement is dropped. ⁴⁹

The unborn child is among the heirs if it is known that it was in the womb when the testator died and was born alive. Its presence is known if the child is born within the shortest period of pregnancy, six months after the death, while the marriage stands, since all the jurists agree that the shortest pregnancy is six months. If the woman is in her waiting period and the child is born within less than two years after the separation by death or an irrevocable divorce, it is an heir; this is the Hanafi view and a report from Ahmad. ⁴⁹ The Hanafis take the longest pregnancy to be two years, on the hadith of A'isha that a child does not remain in its mother's womb longer than two years, which is known by report rather than by analogy. The Shafi'is and, in the sounder view, Ahmad and one Maliki view hold four years, from the observation of cases and from Umar's ruling on the wife of a missing man, who must wait four years; the second Maliki view is five years, and Ibn Abd al-Hakam of the Malikis said one year. Ibn Rushd said that the matter is referred to custom and experience, and that Ibn Abd al-Hakam's view is closer to what is customary. ⁴⁹

If a person dies leaving an unborn child who is an heir, the matter is suspended until it is clear. If the heirs demand division, they are not given all the estate by agreement; whoever is not reduced by the child is given his full share, whoever is reduced by it is given the least of his shares, and whoever is excluded by the child is given nothing. ^{49 50} The unborn inherits if it is born within the shortest period of pregnancy, and likewise if it is born within the longest period, on the disagreement above; if it is born after that, it inherits only if the heirs acknowledge it. ⁵⁰

The unborn inherits on two conditions. The first is that it is born alive, so that its life at birth is counted as an extension of its life in the womb and evidence of it. There is the report, "when the newborn cries out it inherits", and Sa'id ibn al-Musayyib reports from Jabir ibn Abd Allah and al-Miswar ibn Makhrama (may God be pleased with him): "the child does not inherit until it cries out." ⁵⁰ If it is born dead without a blow to its mother, and there was no evidence of life before, it does not inherit, by agreement. If it comes out by a blow to its mother, the majority say it does not inherit, for lack of evidence of life; the Hanafis say it inherits, because the Lawgiver counted it alive before the blow when he required the ghurra for it, and for them it also inherits from its dead ancestor while in the womb. ⁵⁰ The Hanafis require only that most of the foetus come out alive: if it emerged head first and remained alive until its whole chest appeared, or emerged feet first and remained alive until its navel appeared and then died, it inherits, since most of a thing has the ruling of the whole. ^{50 51} The three imams require that the whole of it be born alive, and its life is known by crying out. The jurists differ on what counts. One group says it does not inherit until it cries out, the well-known view of Ahmad, reported from many Companions and Successors. Ahmad also said that any sound that shows its life, such as a cry, a sneeze or weeping, is a cry out, a view of al-Zuhri and al-Qasim ibn Muhammad. A third report of Ahmad, which al-Thawri, al-Awza'i, al-Shafi'i and Abu Hanifa and his companions held, is that it inherits when its life is known by a sound, a movement, suckling or otherwise. ⁵⁰

The child must be born within the waiting period. If the woman acknowledges that her waiting period has ended and gives birth within less than six months, she is shown to be lying and the child inherits. If she does not acknowledge the end of the waiting period and gives birth within the longest period or less, the child inherits, since it is shown that her waiting period had not ended. ⁵⁰

When the estate of a man whose heirs include an unborn child is to be divided, Abu Hanifa has held back the share of four sons or of four daughters, whichever is more, and the rest of the heirs are given the least of their shares. This is the Maliki view and the view opposite to the sounder Shafi'i one. An example where the sons' share is greater is a man who dies leaving a pregnant wife and an uncle or a brother; an example where the daughters' share is greater is a man who dies leaving a pregnant wife and both parents. ⁵¹ When the pregnancy is clear and the doubt is removed, if the unborn is entitled to the whole held-back share it takes it; if to part of it, it takes that part and the rest is divided among the heirs, each being given what was held back from his share. ⁵¹ Shurayk al-Nakha'i said: "I saw in Kufa four sons of one birth belonging to Abu Isma'il", and no earlier source reports a woman bearing more than that. ⁵¹ For Muhammad the share of three sons or three daughters, whichever is more, is held back, and in another report of his the share of two sons or two daughters; this is one of the two reports of Abu Yusuf, since four births from one womb are extremely rare and no ruling is built on them, so the ruling is built on what is customary, which is two. Al-Khassaf reports from Abu Yusuf that the share of one son or one daughter is held back, whichever is more, and on this the fatwa rests, since the custom is that a woman bears only one child at a time, so the ruling is built on it unless the contrary is known. ⁵¹ The people of Samarkand held that if the birth is near the division is held back for the pregnancy, since to hasten it might prove wrong when the pregnancy shows differently; if the birth is far off, the division is not held back, since that harms the other heirs. No fixed period is given for 'near', and the matter is left to custom; some say it is less than a month. ⁵¹ The view of Ahmad, and one of the two reports of Abu Yusuf and Muhammad, is that the share of two sons or two daughters, whichever is more, is held back, since twin births are common and more than two are rare. The rule is that where the fixed shares exceed a third, the females' share is greater; where they fall short, the two males' share is greater; and where they are equal, as with the two parents and the unborn, the shares of two males and two females are equal. ⁵¹

The mafqud in the lexicon is one who is absent, and in law he is an absent person whose news has ceased and of whom it is unknown whether he is alive or dead. Shams al-A'imma said it is the name for a living person, alive in the beginning of his state, but counted as dead regarding his property. ⁵² The ruling on his inheritance is that he is alive regarding his own property, so no one inherits from him, and dead regarding another's property, so he inherits from no one, since the basis is that his life continues until the contrary appears, and the presumption of a continuing state is a proof. His property is held back until his death is confirmed or a period passes in which one of his age cannot live; this is the view of Malik, al-Shafi'i and one of the two Hanafi views. ⁵² The Hanafi reports differ on the period after which death is judged. The apparent report is that it is when none of his contemporaries remains in his city; another says in all the lands, but the first is sounder, since the second causes great hardship. Al-Hasan ibn Ziyad reports from Abu Hanifa a period of one hundred and twenty years from his birth; Muhammad said one hundred and ten; Abu Yusuf said one hundred and five years, and some said ninety, some seventy, on the saying about the lifespans of this community; and some hold that his property is held back until the imam's ijtihad decides, and it is reported that Abu Hanifa left the period to the judge's ijtihad in each age. ^{52 53}

The first kind is one whose situation is usually death, such as one lost between the two armies, or in a desert where people perish, or one who vanishes from among his family while he goes out for the night prayer or a near errand and does not return and his news is unknown. He is waited for four years; if no news appears his property is divided, his wife observes the waiting period of a widow and may then marry; this is Ahmad's text and the choice of Abu Bakr. ⁵³ The second kind is one whose situation is not usually death, such as a traveller for trade, learning or wandering, whose news is unknown; there are two reports: one that his property is not divided and his wife does not marry until his death is certain or a period passes in which such a man does not live, a matter for the judge's ijtihad; the other that he is waited for until ninety years from his birth. ⁵³

His share of the property of a deceased relative who dies during the period of waiting is held back. If the period passes without news, the held-back share is returned to the heirs of the deceased. The jurists agree that the missing person inherits only from those of his heirs who are alive on the day his property is divided, not from those who died before, even by a day. ⁵³ They differ where the deceased has a missing heir: the view of Ahmad and most jurists is that each heir is given his certain share and the rest is held back until the matter is clear or the period passes; if his existence would bar others by full exclusion, no one is given anything and the whole estate is held back until his death or life is known. ⁵³

The captive (asir) in the lexicon is one taken, bound or imprisoned; in law it is anyone taken, whether bound or not. The ruling is that if his life is known he inherits. If he has left his religion, his ruling is that of an apostate, since there is no difference between one who apostatises in the lands of Islam and then joins the enemy, and one who apostatises in enemy lands and remains there: in both cases he becomes an enemy. ⁵³

If the captive's heirs claim that he apostatised in enemy territory, the claim is not accepted without the testimony of two just Muslims, since his Islam is known by the presumption of the continuing state, and the testimony of a non-Muslim against a Muslim is not accepted even in particular matters, let alone in a matter of religion. If the judge has ruled on his apostasy and he later comes and denies it, the judgement is not overturned, and his wife and property are not returned to him, except what remains in the hand of his heir in its own form. ⁵⁴

Al-Sarakhsi reports that Abu Bakr, Umar and Zayd ibn Thabit agreed that in the case of those drowned, burned or killed by a collapse, when it is not known which died first, none inherits from another; each one's estate goes to his living heirs. Zayd ruled so for the slain of Yamama, for those who died in the plague of Amwas, and for the slain of al-Harra; Ali is reported to have ruled so for the slain of the Camel and of Siffin, and that is the view of Umar ibn Abd al-Aziz, which the majority of jurists adopted. ⁵⁴ Ali and Ibn Mas'ud are reported in another report to have held that some of them inherit from others, except from what each inherited from his companion, since the cause of entitlement of each is known, which is his life, and the cause of blocking is doubtful; so one holds to life until another certainty comes. The view of those who refuse is that the cause of entitlement is not known with certainty, and entitlement rests on the cause; in law there is the great principle that entitlement is not established by doubt. ⁵⁴

An illegitimate child is one whom his mother bears as a result of unlawful intercourse. The ruling is that his descent is established from his mother and he inherits through her side only, since his tie to her is a material fact beyond doubt; his descent from the fornicator is not established according to the majority of jurists, even if the fornicator acknowledges him, because descent is a blessing and cannot be built on a crime. If he is not declared to be the son of unlawful intercourse, the mother of the child is unmarried, and the conditions of acknowledgement are met, his descent from the man is established, taking his condition to be sound and acting on the outward appearance. If one of them dies, the other inherits from him. ⁵⁴

Ishaq ibn Rahawayh, Ibn Taymiyya and others hold that the descent of an illegitimate child is established from the fornicator when the mother is not a wife on a marriage bed, since his fornication is a real fact; as his descent is established from the mother, so it is established from the fornicator, lest the child's descent be lost and he suffer harm and shame for a crime he did not commit, and God says that no bearer bears another's burden (Fatir 18). The consequence of this view is that inheritance is established between them, since inheritance follows the establishment of descent. ⁵⁵

The child of li'an does not inherit from the man who swore li'an against its mother, according to the Hanafis and the other three schools. Ibn Qudama said: when a man swears li'an against his wife and disowns her child, and the judge separates them, the child is cut off from him, and his agnatic line from the man is severed, so neither the man nor his agnates inherit from it; the mother and her fixed-share heirs do inherit from it, and the inheritance between the spouses is cut off, on which he knows no disagreement among the scholars. ⁵⁵ If one of them dies before the li'an is complete while still married, the other inherits, according to the majority; al-Shafi'i said that if the husband completes his li'an they do not inherit from each other; Malik said that if the husband dies after his li'an and the wife has not sworn, she inherits nothing and is not punished, while if she has not sworn she inherits and is punished; if she dies after the husband's li'an he inherits from her, according to all but al-Shafi'i. ⁵⁵ If the li'an is complete between them and one dies before the judge separates them, there are two reports: one that they do not inherit, the view of Malik and Zufar; the other that they inherit as long as the judge has not separated them, the view of Abu Hanifa and his two companions, since if separation came by li'an itself, the judge's separation would not be needed. If the judge separates them before the li'an is complete, the separation does not take effect and inheritance is not cut off, according to the majority; Abu Hanifa and his companions hold that if he separates them after they have sworn four times, the separation takes effect and inheritance is cut off, since the greater part of the li'an has been performed. ⁵⁵

When none of the heirs named above is found in their order, the estate passes to the treasury according to one view, or to the one acknowledged as kin by another, or to the legatee of more than a third, according to the disagreement mentioned earlier. ⁵⁵ An acknowledgement of descent is of two kinds. The first is an acknowledgement of descent against the one who acknowledges, which is an acknowledgement of the basic descent. ⁵⁵

An acknowledgement of descent is of two kinds. The first is an acknowledgement of descent against the acknowledger, such as a direct sonship, fatherhood or motherhood; when its conditions are met it is valid, the descent is established, and the one acknowledged inherits from the acknowledger after his death like his other sons, and the acknowledgement may not be withdrawn. ⁵⁶ The second is an acknowledgement of descent against another than the acknowledger, which is a kinship with an intermediary between the acknowledger and the one acknowledged, such as a man declaring another to be his brother, uncle or grandfather. This kind does not establish descent, and may be withdrawn, but the acknowledger is treated by its content in financial matters when its conditions are met, since it does not harm another. ⁵⁶ If a man dies leaving two sons and one of them acknowledges a third while the other denies him, Malik, Abu Hanifa and Ahmad hold that the acknowledged has a right against the acknowledger and shares in his inheritance, but they differ on the amount: Malik and Ahmad have the acknowledger give what exceeds his share if descent had been established, that is a third of what is in his hand; Abu Hanifa has him give half of what is in his hand, since the acknowledger says to the acknowledged, "you and I are equal in our father's inheritance", and what the denier took is as if it were lost or taken by an aggressor, so they are equal in what remains in the acknowledger's hand. ⁵⁶ Malik and Ahmad argue that the acknowledger acknowledged more than his share, so he is not bound to more than he acknowledged. Al-Shafi'i holds that nothing is binding on the acknowledger judicially, and as to binding him in conscience there are two views, the sounder that he is not bound, since descent is not established by this acknowledgement, and what is not established is not inherited. ⁵⁶ If the deceased leaves one son who acknowledges a brother, the descent of the acknowledged is not established by the acknowledgement, since the number of witnesses is not complete, but he shares in the inheritance and gives him half of what is in his hand. ⁵⁶ The rule for the Shafi'is is that whoever is entitled to the whole estate by inheritance has his descent established by his acknowledgement, and the inheritance follows in judgement. ⁵⁶

When there is no heir of the deceased and no one acknowledged as kin by another, his whole estate goes to the legatee of the whole property according to the Hanafis and Hanbalis, since they place him before the treasury here; they allow a bequest in this case, because the bequest was not carried out beyond a third for the heirs' right, and when none of them exists the bar is removed. The Malikis and Shafi'is in this case do not allow a bequest of more than a third, since there is no one with the right to permit it. ⁵⁶

Takharruj in the lexicon is for some partners to take a house and others a piece of land, for example; in law it is for the heirs to agree to take one of them out of the inheritance for a known thing, whether from the estate or from elsewhere. ⁵⁷ The Hanafis, Malikis and Shafi'is allow it in all cases; the Hanbalis allow it for old inheritances, and for estates still present they allow it when both parties know the matter, and forbid it if the owner of the right is unknown. ⁵⁷ If the estate includes gold and silver, the rules of exchange must be respected: the goods must be handed over in the session and be equal where they are fixed; and uncertainty is excused in takharruj, since it is based on measure. ⁵⁷

Munasakha in the lexicon is succession and passing from hand to hand; in law it is the passing of the share of some heirs, on their death before division, to those who inherit from them. ⁵⁷ If the heirs of the second deceased are the heirs of the first, one division suffices among the living, as when a man dies leaving sons and daughters, then one of them dies before division leaving no heir but his brothers. If some heirs of the second are not heirs of the first, the first's estate must be divided among his heirs, and then the second's share is divided among his heirs by the rules of inheritance, as when a man dies leaving a son and a daughter, and the son then dies before division leaving a daughter and a sister. ⁵⁷

If a single heir takes the estate there is no need to divide it, whether he is a residuary, a holder of a fixed share or a blood-kin. When there are several heirs the estate must be divided, which requires: first, knowing the fixed shares that the holders of fixed shares take in the case; second, knowing the root of the problem, which is the least number from which the shares can be taken without fractions, and this varies with the heirs. If they are residuaries only, the root is the number of heads; if there is a female residuary with them, each male counts as two females. ⁵⁸ If a holder of a fixed share is present with residuaries, the root is the denominator of his fraction, and the fixed fractions do not exceed the denominators named here. ⁵⁸

The steps are: knowing the fixed shares that the holders of fixed shares take; knowing the root of the problem; and knowing each heir's shares. A holder of a fixed share has as his shares the root multiplied by the fraction of his share; a residuary has as his shares what remains after the sum of the fixed-share holders is taken from the root. Then comes knowing the value of one share of the estate, which is the estate divided by the root when the sum of the shares equals the root; and then each heir's portion, which is the value of a share multiplied by his shares. ⁵⁹ Then the sum of the shares is compared with the root. If the two are equal the problem is just; if the fixed shares exceed the root the problem is one of awl; if they fall short and there is no residuary, it is one of return; awl and return were explained above. ^{59 60}

The inheritance books have problems known by special names because of the rulings settled in them, some agreed on and some disputed. One is the musharraka, also called al-himariyya, al-hajariyya or al-yammiyya, in which a husband, a mother, two uterine brothers or two uterine sisters or a uterine brother and sister, and two full brothers are the heirs. The Companions and the jurists disagreed about it. ⁶⁰ The view of Ali, Abu Musa al-Ash'ari and Ubayy ibn Ka'b is that the husband takes a half, the mother a sixth, the two uterine brothers a third, and the full brothers nothing; this is the Hanafi view and Ahmad's sounder view. ⁶⁰ The view of Uthman and Zayd is that the full brothers share with the uterine brothers, so the third is divided equally among all, male and female alike; this is the view of Shurayh, al-Thawri, Malik and al-Shafi'i. Umar held the first view of excluding them, then returned to sharing; there are two reports from Ibn Abbas and two from Ibn Mas'ud, the better-known being sharing and non-sharing respectively. ⁶⁰ It is reported that the full brothers said to Umar: suppose our father was an ass or a stone thrown into the sea, are we not of one mother? So he changed his earlier view and ruled for sharing. The author of al-Mabsut says that sharing is the juristic sense, since entitlement rests on nearness and connection; the full brothers and the uterine siblings are equal in their connection through the mother, and the full brothers' stronger connection through the father is of no use, since for them the father is an agnatic link and agnatic entitlement comes after the father's own share. ⁶⁰

Those who refuse sharing argue from the verse of kalala (al-Nisa 12), which makes the plural share in the third; there is no disagreement that the verse means the uterine siblings alone, as the commentators agree, and the reading of Ubayy and Sa'd ibn Abi Waqqas confirms it; so sharing full brothers with uterine siblings is contrary to its apparent sense, and contrary to the verse on full brothers and sisters (al-Nisa 176), which gives the male the share of two females. ⁶¹ They also argue from the saying "give the fixed shares to their people, and what remains goes to the nearest male", since giving the shares to their people requires that the whole third go to the uterine siblings, who are holders of fixed shares, so sharing with full brothers goes against it. ⁶¹ And they argue from the consensus that if one uterine sibling and several full brothers are present, the uterine sibling takes a sixth and the full brothers take the third; if one sibling can be preferred to them in this way, why may two not exclude them? ⁶¹

Their form is a woman who dies leaving a husband, a mother and a father, or a man who dies leaving a wife, a mother and a father. In the first, the four imams agree that the husband takes a half, the mother a third of what remains after the husband's share, and the father the rest. In the second, the wife takes a quarter, the mother a third of what remains after the wife's share, and the father the rest. ⁶¹ The reason is that a male and a female who take the estate in thirds should take what remains after the spouse's share in the same way, as a full brother and a full sister do not take from the mother's side; and the rule is that when a male and female of one degree meet the male has twice the female's share, so if the mother had a third of the whole estate with the husband, she would take more than the father. Ibn Abbas differed, holding that the mother takes the full third in both cases, citing the verse on the mother's third (al-Nisa 11) and the saying on giving the fixed shares to their people. ⁶¹

If a grandfather took the place of the father in both cases, the mother would take a third of the whole estate; this is the view of Ibn Abbas and one of the two reports from Abu Bakr al-Siddiq, and the people of Kufa report it from Ibn Mas'ud in the husband's case. Abu Yusuf says that the mother takes a third of the remainder with the grandfather as with the father, which is the other report from Abu Bakr, so in that report the grandfather is treated as the father. ⁶² The case is called al-gharrawan for its fame, as a shining star; al-gharimatan because each spouse is like a creditor and the parents are like heirs taking what remains after each one's share; al-gharibatan for its strangeness among the cases of the shares; and al-'umariyyatan because Umar was the first to rule in them that the mother takes a third of the remainder, and most of the Companions and those after them agreed. ⁶²

Its form is a mother, a grandfather and a sister. It is called kharqa' (torn), because the sayings of the Companions have torn it. Abu Bakr said the mother takes a third and the rest goes to the grandfather; Zayd said the mother takes a third and the rest is divided between the grandfather and the sister in thirds; Ali said the mother takes a third, the sister a half and the rest the grandfather; and two reports from Ibn Abbas differ. It is called 'Uthmaniyya because Uthman alone said a view that broke the consensus: the mother a third, and the rest divided equally between the grandfather and the sister. It is also called the triple of Uthman, the quadruple of Ibn Mas'ud and the quintuple of al-Sha'bi, for the number of views attributed to the Companions. ⁶²

Its form is six sisters of different parents and a husband: the husband takes a half, the two full sisters two-thirds, the two uterine sisters a third, and the paternal siblings are excluded. The root is six and it increases to nine. It is called Marwaniyya because it happened in the time of Marwan ibn al-Hakam, and al-Gharra' for its fame. ⁶²

Its form is three grandmothers of equal degree, a grandfather, and three sisters of different parents. Abu Bakr and Ibn Abbas said the grandmothers take a sixth and the rest goes to the grandfather. Ali and Ibn Mas'ud said the full sister takes a half, the paternal sister a sixth to complete two-thirds, the grandmothers a sixth and the grandfather a sixth. Zayd gave another division. It is called Hamziyya because Hamza al-Zayyat was asked about it and gave these answers. ⁶³

Its form is a wife, a grandmother, two daughters, twelve brothers and one sister of the full blood, with an estate of six hundred dinars: the grandmother a sixth, one hundred; the two daughters two-thirds, four hundred; the wife an eighth, seventy-five; leaving twenty-five, two dinars for each brother and one dinar for the sister. It is called Dinariyya, and also Dawudiyya, because Dawud al-Ta'i was asked about it and divided it in this way. It is told that the sister complained to Abu Hanifa of receiving one dinar, and he said that the grandmother, the two daughters, the wife and the brothers were not wronged, so this is her share. The case is one of the riddles of inheritance, the puzzle being: a man left six hundred dinars and seventeen heirs, male and female, and one of them got one dinar. ⁶³

Its form is four wives, five grandmothers, seven daughters and nine sisters of the father's side. The root is twenty-four; the wives take an eighth, three; the grandmothers a sixth, four; the daughters two-thirds, sixteen; and the sisters the remaining one. The shares and the heads have no common measure, nor do the heads with each other, so the heads are multiplied together until the problem comes out right at thirty thousand two hundred and forty. The test is a man who left several classes of heirs, each fewer than ten, whose estate can be divided only by a figure above thirty thousand. ⁶³

Its form is two parents and two daughters, one of whom dies leaving those she leaves. It is called al-Ma'muniyya because al-Ma'mun wished to appoint someone as judge of Basra and brought Yahya ibn Aktham before him; the caliph thought him too young and disdained him, so he asked him this problem. Yahya said: tell me, Commander of the Faithful, whether the first deceased was a man or a woman. Al-Ma'mun saw that he knew the problem and appointed him judge. ⁶⁴ The answer varies with whether the first deceased is male or female. If he is male, the root is six: the two daughters take two-thirds and the parents a sixth each. If one daughter dies leaving a sister, a true grandfather and a true grandmother, the grandmother takes a sixth and the rest goes to the grandfather, and the sister falls away by the view of Abu Bakr; Zayd gave the grandmother a sixth and the rest between the grandfather and the sister in thirds. If the first deceased is a woman, the daughter dies leaving a sister, a true grandmother and a false grandfather (father of the mother); the grandmother takes a sixth and the sister a half, the rest is returned to them, and the false grandfather falls away by consensus. ⁶⁴