In the division of inheritance, it is obligatory to begin with the Ashab al-Furood (those with fixed shares), and whatever remains will go to the ‘Asabah (agnate relatives).
It is narrated from Hazrat Ibn Abbas (may Allah be pleased with them) that the Messenger of Allah (peace be upon him) said:
ألحقوا الفرائض بأهلها فما بقى لأولى رجل ذكر
“Give the fixed shares to those entitled to them, and then whatever remains, give it to the nearest male heir.”
[Bukhari: 6746, Kitab al-Fara’id: Bab Ibni ‘Amm Ahaduhuma Akh lil-Um wal-Akhar Zawj, Muslim: 1615, Ahmad: 313/1, Darimi: 368/2, Abu Dawood: 2898, Ibn Majah: 2740, Tirmidhi: 2098, Tayalisi: 2609, Ibn al-Jarud: 955, Abdul Razzaq: 19004, Abu Ya’la: 258/4, Ibn Hibban: 5996, Sharh Ma’ani al-Athar: 390/4, Dar Qutni: 70/4, Bayhaqi: 238/6, Sharh al-Sunnah: 448/4]
(Nawawi) There is consensus on this issue.
[Sharh Muslim: 60/6]
(Khitabi) The meaning of لأولى رجل ذكر is that the ‘Asabah are the nearest male relatives.
[Ma’alim al-Sunan: 97/4]
‘Asabah: The heirs of the deceased whose shares are not fixed.
[Al-Fara’id: p. 36]
Ashab al-Furood: Those whose shares are fixed. The fixed shares are six:
Half (Nisf)
Quarter (Rub’)
Eighth (Thumn)
Two-thirds (Thuluthan)
One-third (Thuluth)
And one-sixth (Suds).
[Al-Fara’id: p. 40]
Sisters are ‘Asabah along with daughters, and to complete two-thirds, the granddaughter is combined with the daughter to receive one-sixth.
Just as after giving the shares of Ashab al-Furood, any remaining wealth goes to the ‘Asabah as heirs, similarly sisters will inherit the remainder of the daughters’ shares.
1. Hazrat Ibn Mas’ud (may Allah be pleased with him) says that the Messenger of Allah (peace be upon him) decided in the presence of a daughter, granddaughter, and sister that:
للا بنة النصف ولابنة الابن السدس تكملة الثلثين وما بقى فللأخت
“To complete two-thirds, the daughter will have half the inheritance, and the granddaughter will have one-sixth; then whatever remains will be for the sister.”
[Bukhari: 6736, Kitab al-Fara’id: Bab Mirath Ibnat al-Ibn ma’a Bint, Ahmad: 389/1, Abu Dawood: 2890, Tirmidhi: 2093, Ibn Majah: 2721, Bayhaqi: 230/6]
2. Hazrat Aswad says that Hazrat Mu’adh bin Jabal (may Allah be pleased with him) made a sister and a daughter heirs in Yemen such that:
جعل لكل واحدة منهما النصف
“Each was assigned half.”
And at that time the Prophet (peace be upon him) was alive.
[Sahih: Sahih Abu Dawood: 2516, Kitab al-Fara’id: Bab Ma Ja’a fi Mirath al-Salb, Abu Dawood: 2893, Bukhari: 6734]
(Shawkani) These hadiths prove that the sister will be ‘Asabah along with the daughter.
[Nil al-Awtar: 123/4]
The previous hadith:
للابنة النصف ولابنة الابن السدس تكملة الثلثين
also supports this.
Similarly, a sister from the father’s side, together with a uterine sister, will take one-sixth. In the absence of the mother, the paternal grandmother and maternal grandmother will receive one-sixth.
By analogy with the granddaughter receiving one-sixth along with the daughter (half), the sister from the father’s side will be given one-sixth along with the uterine sister (half).
1. Hazrat Qabisa bin Dhuaib says that a grandmother (paternal grandmother) came to Hazrat Abu Bakr (may Allah be pleased with him) asking about her inheritance, and he said:
مالك فى كتاب الله شيئ وما علمت لك فى سنة رسول الله شيئا فارجعى حتي اسال الناس
“There is no fixed share for you in the Book of Allah, nor do I know of anything from the Sunnah of the Messenger for you. Go, I will ask people (consult).”
Then he asked people, and Hazrat Mughirah bin Shu’bah (may Allah be pleased with him) said that he was present with the Messenger of Allah (peace be upon him) when he said:
أعطاها السدس
“She was given one-sixth.”
Hazrat Abu Bakr (may Allah be pleased with him) asked if anyone else agreed with this, and Muhammad bin Muslimah Ansari stood and said the same. Then Hazrat Abu Bakr (may Allah be pleased with him) implemented it.
(The narrator says) Then another grandmother came to Hazrat Umar (may Allah be pleased with him) asking about her inheritance, and he also said that there is no fixed share for you in the Book of Allah, but this is the one-sixth. And if you gather (i.e., both paternal and maternal grandmothers come), this will be divided among you, and if one remains alone, this (one-sixth) is hers.
[Mu’atta: 513/2, Ahmad: 225/4, Abu Dawood: 2894, Tirmidhi: 3101, Ibn Majah: 2724, Abdul Razzaq: 19083, Ibn al-Jarud: 959, Abu Ya’la: 110/1, Mawarid al-Dhaman: 1224, Dar Qutni: 94/4, Hakim: 338/4, Bayhaqi: 234/6, Hafiz Ibn Hajar says its chain is authentic due to trustworthy narrators but its form is mursal because Qabisa’s hearing from Sadiq is not authentic. Talkhis al-Habeer: 179/3, Weak Abu Dawood: 617, Shaykh al-Bani said it is weak.]
2. Hazrat Buraydah (may Allah be pleased with him) says:
أن النبى جعل للجدة السدس إذا لم يكن دونها أم
“The Prophet (peace be upon him) assigned one-sixth for the grandmother in the absence of the mother.”
[Abu Dawood: 2895, Kitab al-Fara’id: Bab fi al-Jaddah, Tuhfat al-Ashraf: 87/2, Ibn al-Jarud: 960, Dar Qutni: 91/4]
3. Hazrat Ubada bin Samit (may Allah be pleased with him) says that the Prophet (peace be upon him) decided to divide one-sixth between two grandmothers.
[Abdullah bin Ahmad in Zawa’id al-Musnad: 326/5, Majma’ al-Zawa’id: 230/4]
4. Abdul Rahman bin Yazid says that the Messenger of Allah (peace be upon him) gave three grandmothers one-sixth each: two paternal grandmothers and one maternal grandmother.
[Dar Qutni: 90/4, Abu Dawood in al-Marasil: 355, 356, Ibn Abi Shaybah: 269/6, Sa’id bin Mansur: 86, Bayhaqi: 236/6, Talkhis al-Habeer: 181/3, this narration is mursal. Nil al-Awtar: 125/4]
The fixed share of grandmothers is one-sixth even if there are more than one, provided they are of equal degree, i.e., maternal grandmother and paternal grandmother are equal with no preference. If they are not equal, the closer one will exclude the more distant one, and only mothers can exclude. The father will exclude grandmothers only from his side, while the mother will exclude from both sides.
[Sharh al-Muhadhdhab: 516/14, Mughni al-Muhtaj: 12/3, al-Mabsut: 168/29, al-Ikhtiyar: 94/5, al-Kafi: p. 567, Kashaf al-Qina’: 419/4, al-Insaf: 309/7]
The paternal grandfather will also receive one-sixth if there are no excluders.
1. It is narrated from Hazrat Imran bin Husain (may Allah be pleased with him) that a man came to the Prophet (peace be upon him) and said that his grandson had died; what is his share from the inheritance? The Prophet (peace be upon him) said:
لك السدس
“You have one-sixth.”
When he was about to leave, the Prophet (peace be upon him) called him back and said, “You have another one-sixth.” When he was about to leave again, he called him back and said:
إن السدس الآخر طعمة
“The second one-sixth is for you as provision.”
[Weak: Weak Abu Dawood: 619, Kitab al-Fara’id: Bab Ma Ja’a fi Mirath al-Jadd, Abu Dawood: 2896, Ahmad: 428/4, Tuhfat al-Ashraf: 175/8, Tirmidhi: 2099, Ibn al-Jarud: 961, Dar Qutni: 84/4, Bayhaqi: 244/6, Shaykh Hazim ‘Ala Qadi said it is authentic. Ta’liq ‘ala Sabil al-Salam: 1275/3]
The meaning of طعمة is that due to the scarcity of Ashab al-Furood, you were given more than your fixed share as provision; this share will not always be yours because your fixed share is one-sixth and the rest is ‘Asabah.
[Sabil al-Salam: 1276/3, Nil al-Awtar: 126/4]
2. Hazrat Umar (may Allah be pleased with him) asked if anyone knew how much share the grandfather received in inheritance. Hazrat Mu’aqqil bin Yasar (may Allah be pleased with him) said he knew:
ورثه رسول الله السدس
“The Messenger of Allah (peace be upon him) gave him one-sixth.”
[Sahih: Sahih Abu Dawood: 2517, Kitab al-Fara’id: Bab Ma Ja’a fi Mirath al-Jadd, Abu Dawood: 2897]
There was also disagreement among the Companions on this issue. Imam Bukhari (may Allah have mercy on him) narrates that different decisions were reported from Hazrat Ali (may Allah be pleased with him), Hazrat Umar (may Allah be pleased with him), Hazrat Zaid bin Thabit (may Allah be pleased with him), and Hazrat Ibn Mas’ud (may Allah be pleased with him) regarding the grandfather’s inheritance.
[Bukhari: before hadith / 6737, Kitab al-Fara’id: Bab Mirath al-Jadd ma’a al-Ab wal-Ikhwan]
Imam Bayhaqi (may Allah have mercy on him) also narrated many reports on this issue.
[Bayhaqi: 244/6, al-Ma’rifah: 62/5]
In any case, the correct and preferred ruling is that the grandfather will receive one-sixth. The excluders refer to the father because the grandfather will inherit only if the father is absent.
[Al-Fara’id: p. 42]
(Ibn Hajar) There is consensus that in the presence of the father, the grandfather will not be an heir.
[Fath al-Bari: 244/15]
In the presence of a son, grandson, or father, brothers and sisters will not inherit.
There is no disagreement among scholars on this issue.
[Al-Rawdah al-Nadiyyah: 693/2]
Because in the presence of a son, he will be entitled to all the wealth after Ashab al-Furood. In his absence, the grandson will be entitled, and in his absence, the father will be entitled.
However, there is disagreement regarding the inheritance of brothers and sisters in the presence of a grandson.
There is no evidence in the Book and Sunnah on this issue, so the Companions made a decision by ijtihad. Two schools of thought have been transmitted on this issue.
First school: Hazrat Abu Bakr Siddiq, Hazrat Ibn Abbas, Hazrat Ibn Umar, Hazrat Ibn Zubair, Hazrat Ubayy bin Ka’b, Hazrat Hudhayfah bin Yaman, Hazrat Abu Sa’id Khudri, Hazrat Mu’adh bin Jabal, Hazrat Abu Musa al-Ash’ari, Hazrat Aisha (may Allah be pleased with them), and from the Tabi’in, Hazrat Hasan (may Allah be pleased with him) and Imam Ibn Sirin (may Allah have mercy on them). They all say that whether they are full brothers or from the father’s or mother’s side, in the presence of the grandfather, brothers will not be heirs.
(Abu Hanifa) agrees with this. Their evidences are as follows:
1. The grandfather is in the same category as the father, as in the Qur’an:
مِّلَّةَ أَبِيكُمْ إِبْرَاهِيمَ [Al-Hajj: 78]
And in another verse:
وَاتَّبَعْتُ مِلَّةَ آبَائِي إِبْرَاهِيمَ وَإِسْحَاقَ وَيَعْقُوبَ [Yusuf: 38]
2. Hazrat Ibn Abbas (may Allah be pleased with him) says: Does Zaid bin Thabit not fear Allah? They consider the son of the son as a son but do not consider the father of the father as a father.
3. The hadith states: “Give the fixed shares to those entitled to them, and then whatever remains, give it to the nearest male heir.” Surely the grandfather is closer than the brothers, so he is entitled to the remainder of the inheritance.
Second school: Hazrat Ali, Hazrat Ibn Mas’ud, Hazrat Zaid bin Thabit (may Allah be pleased with them), the majority, Shafi’is, Malikis, and Hanbalis. According to them, in the presence of the grandfather, brothers will be heirs, and the inheritance will be divided between them. Their evidences are:
1. The inheritance of full brothers and brothers from the father’s side is established from the Qur’an. Nothing except a text or consensus can prevent it, and neither text nor consensus exists here.
2. The grandfather and brothers are equal in the cause of inheritance because each reaches the deceased through one degree, which is the father.
[Al-Lubab: 199/4, Al-Qawanin al-Fiqhiyyah: p. 390, Al-Sharh al-Saghir: 634/4, Ma’na al-Muhtaj: 21/3, Al-Mughni: 215/6, Al-Um: 71/4, Rawdat al-Talibin: 25/5, Tabyin al-Haqa’iq: 238/6, Al-Mabsut: 180/29, Al-Hujjah ‘ala Ahl al-Madina: 205/4]
(Preferred) Hafiz Ibn Hajar (may Allah have mercy on him) comments on Imam Bukhari’s statement:
ولم يذكر أن أحدا خالف أبا بكر فى زمانه وأصحاب النبى كانوا وافرين
“And it is not mentioned that anyone opposed Abu Bakr (may Allah be pleased with him) during his time, although the Companions of the Prophet (peace be upon him) were numerous.”
He says that Imam Bukhari seems to strengthen Abu Bakr’s position through this, and consensus is a strong proof, which is achieved here.
[Fath al-Bari: 245/15]
In the presence of daughters, brothers from the mother’s side other than full brothers will be heirs.
Hazrat Jabir (may Allah be pleased with him) says that the wife of Hazrat Sa’d bin Rabi’ came to the Messenger of Allah (peace be upon him) with her two daughters (from Sa’d) and said: O Messenger of Allah! These are the daughters of Sa’d bin Rabi’. Their father was martyred with you in the Battle of Uhud. Their uncle (the deceased’s brother) has seized their wealth and left nothing for them, and without wealth, their marriage cannot be conducted. The Messenger of Allah (peace be upon him) said: Allah will decide in this matter. Then the verse of inheritance was revealed. The Messenger of Allah (peace be upon him) sent a message to their uncle saying:
أعط ابـنتـــى سـعـد الثلثين مهما الثمن وما بقى فهو لك
“Give Sa’d’s daughters two-thirds and their mother one-eighth, and whatever remains is for us.”
[Hasan: Irwa’ al-Ghalil: 1677, Ahmad: 352/3, Abu Dawood: 2892, Kitab al-Fara’id: Bab Ma Ja’a fi Mirath al-Salb, Ibn Majah: 2720, Tirmidhi: 2092, Hakim: 333/4]
This hadith clearly proves that brothers will be heirs as ‘Asabah along with the deceased’s daughters. However, brothers from his side will not be heirs with the daughters, as in the Qur’an:
وَإِن كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوِ امْرَأَةٌ وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ [An-Nisa: 12]
“And for those from whom the inheritance is taken, if there is a male or female kulla (one who has neither father nor son), and he has one brother or one sister, then each of them will have one-sixth.”
Imam Qurtubi (may Allah have mercy on him) says that scholars have consensus that the brothers and sisters mentioned in this verse are uterine siblings (i.e., from the mother’s side).
[Tafsir Fath al-Qadir by Shawkani: 557/1]
Brothers from the father’s side will not be heirs in the presence of full brothers.
Hazrat Ali (may Allah be pleased with him) says: You read this verse:
مِّن بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ [An-Nisa: 12]
“The Messenger of Allah (peace be upon him) decided that debts should be paid before bequests, and he said:
وإن أعيان بنى الأم يتوارثون دون بنى العلات ، الرجل يرث أخاه لأبيه وأمه دون أخيه لأبيه
“Full brothers are heirs, not stepbrothers. A man is the heir of his full brother, not of his stepbrother.”
[Hasan: Irwa’ al-Ghalil: 1667, Ahmad: 131/1, Tirmidhi: 2094, Kitab al-Fara’id: Bab Ma Ja’a fi Mirath al-Ikhwan min al-Ab wal-Um, Ibn Majah: 2739, Tayalisi: 1441, Abu Ya’la: 257/1, Dar Qutni: 86/4, Hakim: 336/4]
(Shawkani) I am not aware of any disagreement on this issue.
[Nil al-Awtar: 122/4]
(Siddiq Hasan Khan) There is consensus on this.
[Al-Rawdah al-Nadiyyah: 695/2]
