Bukhari

Hadith Commentary:
(1)
Previously, in a hadith, it is mentioned that a question regarding inheritance was posed to Abu Musa al-Ash‘ari radi Allahu anhu about the inheritance of a daughter, granddaughter, and sister. He replied that the daughter receives half and the sister receives half. He said, “Go to Ibn Mas‘ud radi Allahu anhu, and he will agree with me on this issue.” When they went to Abdullah ibn Mas‘ud radi Allahu anhu and informed him of Abu Musa al-Ash‘ari’s radi Allahu anhu ruling, he narrated this hadith. (Sahih al-Bukhari, al-Fara’id, Hadith: 6736)

(2)
In the benefits of the previous hadith, we clarified that Abu Musa al-Ash‘ari radi Allahu anhu eventually retracted his position. It seems appropriate at this point to explain the ‘asabat (agnatic heirs) and their types. Thus, the close relatives of the deceased whose shares are not fixed, but who inherit what remains after the fixed-share heirs (ashab al-fara’id) have received their portions, are called ‘asabat. In their absence, they inherit the entire estate. If nothing remains, they are deprived. Generally, blood relatives are of three types:

*‘Asabah bi-nafsih (agnates by themselves):*
These are the male relatives of the deceased who, if their relationship to the deceased is traced, there is no female intermediary, and they do not depend on anyone else to become ‘asabah. There are four categories:

*Being a son:*
The deceased’s son; in his absence, the grandson, then great-grandson, and so on. He is called juz’ al-mayyit (part of the deceased).

*Being a father:*
The deceased’s father; in his absence, the grandfather, then great-grandfather, and so on. He is called asl al-mayyit (origin of the deceased).

*Being a brother:*
The deceased’s brother; in his absence, the nephew, and so on. He is called juz’ ab al-mayyit (part of the deceased’s father).

*Being an uncle:*
The deceased’s paternal uncle; in his absence, the uncle’s son, and so on. He is called juz’ jad al-mayyit (part of the deceased’s grandfather).

*‘Asabah bil-ghayr (agnates through others):*
Every female who receives a fixed share and becomes ‘asabah with her brother. This type depends on another (male) to become ‘asabah, and that other is also an ‘asabah. There are four individuals in this category: daughter, granddaughter, full sister, and paternal sister. In this case, the estate is divided such that the male receives twice the share of the female.

*‘Asabah ma‘a al-ghayr (agnates with others):*
Every female who becomes ‘asabah due to another female who is a fixed-share heir. In this case, the fixed-share heir does not become ‘asabah herself, but causes the other female to become ‘asabah. Only the full sister and paternal sister fall into this category when the deceased has a daughter or granddaughter.

(3)
It should be noted that in inheritance, the ‘asabah who is closer in degree to the deceased is given precedence. For example, the son has more right than the grandson; likewise, the stronger relative is given precedence over the weaker, for example, the full brother is given precedence over the paternal brother.

(4)
The son, grandson, full brother, and paternal brother make their sisters ‘asabah, whereas the uncle, his son, the son of the full brother, and the son of the paternal brother do not make their sisters ‘asabah. And Allah knows best.

(5)
When the full sister becomes ‘asabah in the presence of the daughter, she assumes the same status as the full brother, meaning that those relatives who are deprived due to the full brother will also be deprived when the full sister becomes ‘asabah.

(6)
It is also necessary to answer a well-known objection. The scenario is as follows: a man dies, leaving behind a daughter, a sister, and a stepbrother (i.e., paternal brother). After giving half of the estate to the daughter, who receives the remainder? There is a narration from Ibn ‘Abbas radi Allahu anhuma that the fixed-share heirs should be given their shares, and whatever remains is for the closest male relative of the deceased. (Sahih al-Bukhari, Hadith: 6732) This narration implies that the remainder should go to the paternal brother, and the sister is deprived. However, the aforementioned principle that sisters become ‘asabah with daughters implies that the full sister is entitled to the remainder, and the stepbrother is deprived. In this case, whom should be given preference, and why? In Fatawa Thanaiyyah, under the heading of scholarly discussion, this objection and its solution are presented on pages 510 to 518, volume 2. We present its summary:

The meaning of the hadith narrated from Ibn ‘Abbas radi Allahu anhuma has been explained by Allamah Kirmani rahimahullah in these words: in it, the word “dhakar awla” is a description of “man” (person), not a separate subject. “Awla” means “closer,” so the meaning of the hadith is that the remainder of the estate is for the closest male relative of the deceased from the father’s side, not for one from the mother’s side. The benefit of this is that inheritance is negated for the close relative from the mother’s side, such as the maternal uncle, etc., and the word “male” negates inheritance for a woman, even if she is related to the deceased through the father, such as the paternal aunt, etc.

Allamah Tahawi rahimahullah writes that those who deprive the sister in the aforementioned scenario use the following verse of the Qur’an as evidence: “If a man dies childless and he has a sister, she will have half of what he leaves.” (al-Nisa 4:176) They say that giving the sister half in the presence of a daughter (offspring) apparently contradicts the Qur’an. Also, the hadith states that after giving the daughter her share, the remainder is for the closest male relative, and the sister is not a male relative to be given what remains after the daughter. Allamah Tahawi rahimahullah answers this by saying that if the deceased leaves a daughter and a stepbrother, there is consensus that the daughter receives half and the stepbrother receives the remainder, even though this also apparently contradicts the Qur’an. However, by “child” in the verse is meant the one who inherits the entire estate, not the one who inherits only a portion. Also, the hadith narrated from Ibn ‘Abbas radi Allahu anhuma is not general in application, because if someone leaves a daughter, grandson, and granddaughter, then by consensus, half goes to the daughter and the remainder is divided between the grandson and granddaughter; the entire remainder is not given to the grandson just because he is male, but his sister is also made an heir with him. This shows that the hadith from Ibn ‘Abbas radi Allahu anhuma is not general but relates to a specific case, namely, if someone leaves a daughter, uncle, and paternal aunt, then after giving half to the daughter, the remainder is given only to the uncle, and the paternal aunt does not share in it. (Fath al-Bari: 20/12)

In any case, from the hadith of Ibn ‘Abbas radi Allahu anhuma, it is understood that the remainder after the fixed shares goes to the ‘asabah, and there are three types of ‘asabah as previously explained. Sometimes, several types of ‘asabah are present in one scenario, for example:

*‘Asabah bi-nafsih, ‘asabah bil-ghayr, and ‘asabah ma‘a al-ghayr are all present, such as mother, son, daughter, and sister. In this case, after giving the mother her share, the remainder is divided between the son and daughter, and the sister is deprived.

*If ‘asabah bi-nafsih close and ‘asabah bi-nafsih distant are present, the closer relative to the deceased is entitled to the remainder, such as mother, son, and brother. In this case, after giving the mother her share, the son inherits, as he is the closer ‘asabah bi-nafsih, and the brother is deprived as he is more distant.

*If ‘asabah bi-nafsih distant and ‘asabah ma‘a al-ghayr are present, preference is still given to the closer, such as daughter, sister, and step-paternal brother. After giving the daughter her fixed share, the remainder is given to the sister, as she is closer to the deceased than the stepbrother.

Thus, in the first two cases, the hadith of Ibn ‘Abbas radi Allahu anhuma is acted upon, and in the last case, the principle of making the sister ‘asabah is acted upon.

(8)
In any case, according to our inclination, if there is no sister with the daughter, then the hadith of Ibn ‘Abbas radi Allahu anhuma is acted upon, and if there is a sister with the daughter, then in view of the stronger ‘asabah, the remainder is given to her. Also, the rule among the scholars of inheritance is that when the sister becomes ‘asabah ma‘a al-ghayr, she attains the position of the full brother; just as in the presence of the full brother, the stepbrother is deprived, similarly, when the sister is ‘asabah ma‘a al-ghayr, the stepbrother is deprived. And Allah knows best.

Explanation: 1:

Assume the entire estate consists of twelve (12) shares, from which:

The deceased’s daughter receives half of the total estate = 6 shares,

The granddaughter receives one-sixth = 2 shares,

And the deceased’s sister receives the remainder of the estate = 4 shares.

Benefits and Issues:
➊
The answer of Abdullah ibn Mas'ud radi Allahu anhu is mentioned in the verse of inheritance:
(Fa-in kunna nisaa'an fawqa ithnatayni falahunna thuluthaa ma tarak.)
(An-Nisa: 11) If there are only daughters,
and they are more than two,
then they will receive two-thirds of the estate.
Therefore, after giving half to one daughter,
the granddaughter will receive only one-sixth.
In this way, both together will take the place of two daughters.

➋
By "direct descendants" (sulbi awlad) is meant: son, daughter, grandson, and granddaughter.

Benefits and Issues:

➊ Among the noble Companions (radi Allahu anhum), differences of opinion would arise in matters of ijtihadi (juristic reasoning), but they would not adopt mutual opposition or enmity on this basis.

➋ In comparison to ijtihadi opinion, the explicit text of the Qur’an and Hadith is to be acted upon. The importance of ijtihad (juristic reasoning) is only as long as the scholar is unaware of an explicit text from the Qur’an and Hadith regarding the issue at hand.

➌ The basis of the opinions of both Companions (radi Allahu anhuma) was likely this principle: that in the presence of a nearer heir, the more distant heir is deprived. Therefore, in the presence of a daughter, they declared the granddaughter deprived, and the share left over from the daughter was given to the sister.

➍ Abdullah ibn Mas’ud (radi Allahu anhu) based his opinion on the Prophetic instruction and stated a principle that was not known to the other Companions (radi Allahu anhum).

➎ If the heirs are only two daughters, their share is two-thirds. In the absence of daughters, this same share belongs to the granddaughters. Just as the share of one daughter is half, similarly, in the absence of a daughter, the share of one granddaughter is half. In light of these principles, in the case of one daughter and one granddaughter, the daughter’s share is half, and the combined share of the daughter and granddaughter is two-thirds. Therefore, after giving half to the daughter from the two-thirds, the remaining one-sixth goes to the granddaughter.

➏ In this case, the daughter and the granddaughter do not receive equal shares because their rank, i.e., their relationship to the deceased, is not equal.

➐ In the presence of a daughter, daughters, or granddaughter, granddaughters, the sister is an ‘asaba (residuary heir).

➑ Blind following (taqlid) is utter misguidance, even if it is of the greatest Imam or Companion.