Islamic Law of Inheritance PDF

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/368918412 MIRATH ISLAMIC LAW OF INHERITANCE Chapter · March 2023 CITATIONS READS 0...

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/368918412 MIRATH ISLAMIC LAW OF INHERITANCE Chapter · March 2023 CITATIONS READS 0 11,000 1 author: Bello Ali College of Education, Zing, Taraba State , Nigeria 48 PUBLICATIONS 14 CITATIONS SEE PROFILE All content following this page was uploaded by Bello Ali on 02 March 2023. The user has requested enhancement of the downloaded file.  AL-MIRATH: ISLAMIC LAW OF INHERITANCE BY BELLO ALI DEPARTMENT OF ISLAMIC STUDIES COLLEGE OF EDUCATION, ZING TARABA STATE Introduction Mankind has been chosen as khalifah (representative of Allah) on earth and has been endowed with unique characteristics. The power and wisdom of acquiring and using wealth for earthly consumption is given to man by the Creator. However, the question of transferring wealth after death confronts almost all human societies. Thus, the principles governing inheritance were evolved as conventional rules by the Jews, Christians and Persians. The Arabs of jahiliyyah also operated the conventional rule known as primogeniture. However, Islam abrogated all the systems evolved, after taking its final divine stage, and introduced systematic and comprehensive methods of distributing the wherewithal of the deceased. Pre-Islamic Customary/ Conditions of Inheritance The manner of administration and distribution of the properties of a deceased person might be connected with the beliefs of the people. Different methods are used by various communities in dealing with properties of their deceased relatives; ranging from burying it together with the deceased, destroying it to identifying particular individuals for its ownership (NCE/DLS: 1990). For example, among the Hindus of India, it is only the male children who have the right to inheritance. Therefore, they apply the rule of primogeniture in which preference is given to the eldest son over estate in case where the deceased has several sons. As for the Jewish communities, four grounds are mostly considered for inheritance. In this respect, the wherewithal of the deceased is mostly revolving around male descendants (sons and grandsons of the deceased), male ascendants (father and grandfather of the deceased), male descendant of deceased’s father (full and half brothers from father’s side) and male descendant of deceased’s grandfather (full and half paternal uncles) (Lakhyi: 2011). 1 The pre-Islamic Arabia had also their principle of inheritance based on blood relationship, adoption (Tabanni) and contract. On blood relationship, emphasis was stressed on comradeship in arm. Here, only those who could fight to defend their clan or get war booty were allowed to inherit. Women, minor and weak, therefore, were excluded from inheritance. In many cases, only the eldest was considered to inherit all the properties and might also claim his father’s wives. Another way through which a person could inherit was adoption (Tabanni). This system established the right of inheritance between the two (deceased and heir), even though they (adopted and adaptor) were not connected by blood relationship. The system of adoption was abrogated by Islam. The other method of inheritance among the Jahilliyah Arabs was contract of agreement. One or both enjoyed the right to inherit in accordance with the terms of agreement. In this case, relationship of whatever kind was not considered. A complete stranger could inherit as a result of the agreement (Lakhyi: 2011). The pre-Islamic system of inheritance in various communities is clearly explained in the following words; In the pre-Islamic world and even in modern societies, the law of inheritance has so many evils in it, which may be summed up in the following points; 1. Women had been completely denied the share of inheritance. They were rather regarded as part of the property of the deceased and, therefore, their right to property by inheritance was out of question. 2. In pre-Islamic Arabia and other countries where there had been tribal societies not only women were deprived of the right of inheritance but even weak and sick persons and minor children were given no share in it, as the common principle of inheritance was that he alone is entitled to inherit who wields the sword. 3. In certain societies there had existed the law of primogeniture and it exists even today in some of the so-called civilized parts of the world which entitles only the eldest son to inherit the whole of the father’s property or to get the lion’s share (www.islamspirit.com: 2012). It is obvious, therefore, from the above analysis, that there is no any equitable method or rule governing the subject on how the estate of the deceased could be administered and distributed among the survival heirs in the pre-Islamic era. 2 The Concept of Mirath (inheritance) Inheritance (mirath) simply means the process of administering and distributing the wherewithal of a deceased Muslim to its legal heirs as contained in the Qur’an, Sunnah and the interpretation of the subsequent jurists. According to Doi (1983); (Mirath means inheritance divided from the property of the deceased among his successors. The science of Mirath in Shari’ah gives rules which guide as to who inherits and who is to be inherited, and what shares go to the heirs. Lakhyi (2011), on the other hand, opined that, Al-Mirath and Al-Faraidh are interchangeably used to mean inheritance and the latter is most widely used by the Muslim jurists. He further provided the literal meaning of each of the words and finally explained their meanings in legal perspective thus: Al-mirath is derived from the verb ‘Waratha which means to inherit anything. Another literal meaning of the word mirath is that, it connotes the handing over of a thing from one person to another. And the word Al-Faraidd is plural of AlFardh which is derived from the verb Faradha which literally means “a fixed share”. In the legal terminology, it is a knowledge about some rules of Shari’ah which guide us who will inherit and who will not and what shares will go to the heirs from the property of the deceased (Lakhyi: 2011). The foregoing suggests that al-Mirath deals with pattern laid down for the administering and distributing of an estate of the deceased to the legitimate heirs as determined by Allah and explained by Prophet Muhammad (peace be upon him) as well as interpreted by the Jurists among the companions of the Prophet (peace be upon him) and generations of the subsequent Muslim Jurists. The Islamic System of Inheritance The Islamic system of inheritance is a complimentary part of Islamic family law as well as part of divine legislation. The principle of administration and distribution of estate in a determined portion of a deceased person to its prescribed rightful owner was evolved, first, by Islam. Mirath, with the meaning of inheritance or its derivatives in one form or the other, is mentioned in about thirty-five verses of the Qur’an (Doi: 1983). For Instance; To Allah belongs the Inheritance of the heavens and the earth; and Allah is Wellacquainted with all that you do (Q.3.180). 3  And what cause have you should not spend in the cause of Allah? For to Allah belongs the inheritance of the heavens and the earth (Q.57:10). This provides a legal possession to living persons of a dead person’s property. The law of inheritance in Islam is based upon five main considerations: 1. To break up the concentration of wealth in individuals and spread it out in the society. 2. To respect the property right of ownership of an individual earned through honest means. 3. To hammer in the consciousness of man the fact that is not the absolute master of wealth he produces but he is its trustees and is not, therefore, authorized to pass it on to others as he likes. 4. To consolidate the family system that is the social unit of an Islamic society. 5. To give incentive to work and encourage economic activity as sanctioned by Islam. (www.islamspirit.com: 2012) The Basic Principles of Islamic Law of Inheritance Islam has determined the manner in which the properties of a deceased Muslim should be distributed. The process and modalities of acquiring wealth and how it shall be transferred after death are divinely determined. It is on this note that, Abuduh (1999) asserted that; Strictly speaking, Islam has already determined the manner in which the properties of a deceased Muslim should be distributed. In this regard, whether a Muslim dies testate (i.e. having a will before one’s death) or intestate (i.e. having made no will prior to one’s death), Islam has already provided one for him or her….Whether by his wishes prior to dying, a Muslim cannot deny relevant shares of his or her property being inherited by a relative who is qualified to share in the inheritance. It is pertinent to note here that; inheritance is based on the fact that, estate of deceased will devolve on those who, by reasons of blood relationship, marital relation or any other acceptable means have the strongest claim to benefit from the whole or proportion to the strength of such claim with harmonious distribution of estates among the claimants, in natural strengths of their claims (Qadri: 1986). This system facilitates the collective social spirit by favoring the distribution of property among many heirs. Thus, Mirath is revolving around three groups of relatives: Ashab al-furud or Dhawus siham (sharers), Asabat (Agnates) and Dhawu al-Arham (Distant kindred) (www.islamspirit.com: 2012, Qadri: 1986, Lakhyi: 2011). 4 In Islam, the rights of inheritance is not restricted or narrowed to ability to fight, agreement of contract and adoption; that exclude women, children and weak, rather, it is on the bases of affinity (blood relationship), marriage and clientage (Wala) (NCE/DLS: 1990). In it, there is no favor or distinction among heirs; instead, an equitable distribution of the estate among heirs is designed. Administration of the Estate of a Deceased Muslim The way and manner the property of a deceased Muslims is administered is vividly stated in the Qur’an. Whatever is left as property for distribution is spread across four main benefiting subheads, namely; the legitimate funeral expenses, the debt incurred, the legitimate will/bequest (wasiyyah) and the heirs (Qadr: 1986, www.islamspirit.com: 2012, Bukhari: undated). a. Funeral Expenses: The cost of the water, the shroud, the pay of the washer, the grave-digger and the purchase of the burial ground, etc, where applicable, are to be financed from the estate left by the deceased (Bukhari: nd). Lakhyi (2011) asserted that; Funeral expenses include all expenses relating to the washing of the corpse, shrouding (Kafan) which is three pieces of cloth for man and five for woman, transporting and burial of the corpse. These expenses should be reasonable, within the financial ability of the deceased. And it has to be in accordance to the Islamic teaching regarding burial. The husband provides the funeral expenses for his wife, if he is financially capable. In a situation where the wife is rich, the funeral expenses shall be paid out of her property before sharing it (Abdur-Raheem: 2001). Settlement of Debt Any of the deceased’s debt must be paid before distributing the left property to its legal heirs. The debts may be the rights of Allah like, Zakat, kaffar, Hajj expenditure, etc, or rights of individuals; loan he might have incurred, admitted or discovered after his death (Bukhari: nd, Lakhyi: 2011, Abdur-Raheem: 2001). All these debts must be settled before the distribution of the properties of the deceased to its rightful and legitimate heirs. 5 Will/Bequest (Wasiyyah) These are gifts recommended by the deceased before his death in favor to non-inheritors or to projects like building of mosque, road, construction of well/boreholes, etc. The will should be deducted before the property is distributed, and must not exceed one third (1/3) of the estate (Lakhyi: 2011, Qadri: 1986). It is sufficed to state here the position by Abdur-Raheem (2001) on bequest that; Bequest: this the portion recommended by the deceased before his death. It must not exceed one third of the estate. This includes the donation or endowment made during the death sickness. It is relevant to mention that anybody could benefit from a bequest other than those who are normally entitled to inherit. iv. The Distribution of Estate to Heirs The estate of the deceased goes to the heirs after settling the funeral expenses, debt and Will in accordance to the teaching of the Qur’an, Sunnah and ijma (consensus of scholars). This implies that, the property of a deceased person that is to be administered is the part of his assets that remains of the fundamental rights, (Abudu: 1999). What is obvious from the foregoing is that the distribution of the estate of the deceased, in all respects, is after the deduction of funeral expenses, payment of debt(s) and execution of the bequest. It is on the basis of the four successive duties that the estate of the deceased person belongs to, Abdullah (2004) outlines them as follows: a. His/her funeral and burial ceremony without superfluity or deficiency in expenditure. b. The discharge of his/her just sincere debts from the whole of his/her remaining effects. c. The payments of his/her legacies, or will, out of a third of what remain after his/her debts are paid. d. The distribution of the residues among his/her rightful heirs, according to the Divine Book, the traditions of the Prophet and assent of the learned scholars. Therefore, the distribution of the estate of the deceased, in all respects, is after deducting funeral expenses, payment of debt and execution of the bequest. It is in this regard that Allah stated in the glorious Qur’an that; The distribution all cases is after the payment of legacies and debt. (Q.4:11) 6 Pillars of Inheritance Islamic system of inheritance revolves around three essential pillars; the deceased person (legator), the heir (inheritor) and the estate (inherited property) (Lakhyi: 2011, Bukhari: nd., NCE/DLS: 1990). 1. The deceased person/ legator (Al-Mwarrith) This refers to a person who died and left inheritable property with relatives that are entitled to inherit such properties or estate. 2. The heir (Al-Warith) This is the person to whom the left property of the deceased is transferred to as the rightful owner. 3. The estate (Al-Maurooth) This refers to the inherited property, that is, the legacy. It is the property left by the deceased person that includes all valuable things left (money, farm produce, animals, houses, cars, food stuff, trading articles, among many others. This means without a dead person, the wherewithal and the heir, the subject of inheritance cannot be actualized. But if there are the deceased persons and property without ascendants and descendants or next of kin, then, the public treasury (Baytul Mal) shall inherit the left estate. The Conditions of Inheritance The conditions of inheritance mean those things that must be fulfilled before inheritance takes place. These conditions are; certainty of death, survival and legitimacy of the heirs and legitimacy of ownership (Abudu: 1999, Bukhari: nd., NCE/DLS: 1990). i. Certainty of Death One of the conditions of inheritance in Islam is the establishment of death by observation and the witness of at least two just persons on the certainty of the death. This is done when the person is seen dead or is declared dead after the period fixed for his search, in the case of a missing person, by a competent judge. 7  ii. Survival and legitimacy of the heirs The wherewithal of the deceased can only be transferred to the living and legitimate heir even if for a short while. According Abudu (1999); The individuals who are to inherit the estate must be legitimate heirs…… A legitimate heir must have been alive at the time of death of the deceased. The relevant share is still his, even if he or she subsequently died before receiving his or her share. It is obvious, therefore, that the heir/heirs must be proved as surviving and legitimate at the time of the death before they are permitted to inherit. iii. Legitimacy of ownership The estate left must legitimately belong to the deceased. This can be achieved by certification that will prove that the properties are his belonging beyond any reasonable doubt (Abudu: 1999). With this, the estate to be distributed to the respective legal heirs must be legally owned by the deceased. The Heirs and their classifications According to Lakhyi (2011), an heir is the person that is entitled to inherit whole or part of a deceased’s property due to the relationship of the former to the latter. The determining factors to getting share depend on his relationship to the deceased and the presence or absence of other heir(s). The total number of the heirs is twenty-five; fifteen males and ten females. The following are identified as the male and female heirs; The Male heirs are: 1. Son (s) 2. Grandson (s) (son (s) of son (s)) 3. Father 4. Grandfather (father of father) 5. Full brother (s) (brother (s) same father and mother) 6. Paternal brother (s) (brother (s) same father only) 7. Maternal brother (s) (brother (s) same mother only) 8. Son (s) of full brother (s) 9. Son (s) of paternal brother (s) 8  10. Full paternal uncle (s) 11. Paternal uncle (s) same father 12. Son (s) of full paternal uncle (s) 13. Son (s) of half paternal uncle (s) 14. Husband 15. Male emancipator (who freed his slave) The female heirs are: 1. Daughter (s) 2. Granddaughter (daughter (s) of son (s)) 3. Mother 4. Grandmother (mother of mother) 5. Grandmother (mother of father) 6. Full sister (s) 7. Paternal sister (s) 8. Maternal sister (s) 9. Wife 10. Female emancipator (who freed her slave) There are two broad classifications of heirs according to majority of Muslim Jurists; a. Ashab al-furud or siham (Qur’anic sharers). b. Asabat (agnates) In addition to these, others believe that there are three more classifications; a. Zawu al-Arham (distant Kindred). b. Emancipator (who freed his/her slave). c. Bait al-Mal (Muslim Public treasury) 9 Qur’anic Shares (Furud) and Sharers (Dhawul Furud) Allah mentioned six (6) shares in the Qur’an in a form of fractions, that is, 1/2, ¼, 1/8, 1/3, 2/3 and 1/6 and the heirs called the recipient of fixed shares or sharer (ashab al-furud or dhawu siham. The male sharers are; husband, father, grandfather and maternal brothers. The female sharers on the other hand include; wife (wives), mother, grandmother, full sister (s), paternal sister (s), maternal sister (s), daughter (s), and granddaughter (s) (son’s daughters) (lakhyi: 2011). The comprehensive description of the shares and sharers is adequately provided in the Qur’anic verse below; Allah directs you as regards your children’s (inheritance): to the male, a portion equal to that of two females: if there are only daughters, two or more, their share is two-thirds of the inheritance; if there is only one (daughter), her share is half. For parents, there is one-sixth share of the inheritance to each, if the deceased has left children; if there are no children, and the parents the only heirs, the mother gets a third, if the deceased left brothers (or sisters), the mother gets a sixth. (The distribution in all cases is) after the payment of legacies and debts, you know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah, and Allah is All-Knowing, AllWise. In what your wives leave, your share is a half, if they leave no child. But if they leave a child, you get a fourth after payment of legacies and debts. In what you leave, their (your wives) share is fourth, if you leave no child. But if you leave a child, they get an eighth after payment of legacies and debt. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a (uterine) brother or a sister each one of the two gets the sixth; but if more than two they share in a third, after payment of legacies and debts; so that no loss is caused (to any one). Thus it is ordained by Allah and Allah is All-Knowing, Most- Fore bearing. (Q.4: 11-12) In an illustrative manner, the following provide a clear picture of the shares and their respective sharers in accordance with portions each can get in respective situations; 1. ½- half is the share of the husband, single daughter, single son’s daughter, full-sister and paternal- sister under conditions. 2. ¼- a quarter is the share of the husband and wife/wives under relevant conditions. 3. 1/8- one eight is the share of the wife/wives also under certain condition. 4. 1/3- one third is the share of the mother and two or more uterine brothers and sisters. 10  5. 2/3- two third is the share of two or more daughters, two or more son’s daughters, two or more full sisters and two or more paternal sisters. 6. 1/6- one sixth is the share of the father, the grandfather, mother, grandmother (from both sides), the son’s daughter, paternal sister and one uterine brother or sister. What is imperative to be noted above, a sharer may fall under two different categories of shares. The circumstances leading to such kind of situation will be explained under the principle of exclusion in Islamic system of inheritance in this chapter. The Agnates Heirs (Asabat) This is the second group of relatives who usually inherit what is left of the property of the deceased after giving the sharers their shares. In the absence of sharers, an agnate claims the whole estate. In a situation where the sharers exhaust the entire, an agnate has nothing. Lakhyi (2011) accordingly states, on the agnates, that; They are male relatives, in line of their relationship with deceased no female inter. They have not any fixed share. If the deceased is not survived by any Qur’anic heirs, whole of the property falls to the Asbah, and if they co-exist with Qur’anic heirs, they will get the remaining after the shares of Qur’anic heirs and if the whole estate is exhausted by Qur’anic heirs they will get nothing. An agnate may relate to the deceased through a male relative, male and female or through a female only; i. Agnate through male a. Son (s) b. Son’s son (s) c. Father d. Grandfather ii. Agnate through male and female a. Son(s) and daughter(s) b. Grandson (s) and Grand daughter (s) c. Full sister(s) and full brother(s) d. Paternal Sister(s) and paternal brother(s) 11  iii. Agnate through female a. Full or paternal sister(s) with daughter(s) b. Full or paternal sister(s) with son’s daughter(s) The above classifications of agnates are clearly depicted in the words of Qadri (1986) where he stated that; The residuaries are divided into three classes. The first is called residuary by himself or in his own right, i.e. every male in whose line of relation to deceased no female enters. The second class is of those who are made residuaries by others and they are four women, viz the daughter, the daughter of the son, the sister of the whole blood, and the sister by the father’s side. They become residuaries through brothers because, if they inherit together with their brothers, each one takes half of what her brother takes, and then they have no fixed share and thus the male takes the share of two females. The third class is of those who become residuaries when inheriting together with others as sisters inheriting with daughters, or with daughters of the sons, becoming in this way residuaries, as they take what the daughters or son’s daughters have left. The basis of the inheritance of the agnates can be easily traced to some Qur’anic verses dealing with the Islamic principle of inheritance. Allah says in the following verses; For parents, a sixth share of the inheritance to each, if the deceased left children, if no children, and the parents are the (only) heirs, the mother has a third. (Q.4: 11) If it is a man that dies, leaving a sister but no child, she shall have half the inheritance; if (such a deceased was) a woman, who left no child, her brother takes her inheritance. (4:176) Similarly, the Prophet (peace be upon him) is reported to have said on the issue related to the agnate that; Give the shares to those entitled to them, and give what remains to the nearest male agnate. An Agnate, therefore, inherits the whole if he is alone or takes the remains of the sharers if the latter left something from the estate. But if they (sharers) exhausted everything then an agnate has nothing to take. 12 Dhawul Arham (Distant kindred) These are group of relatives who are not Qur’anic sharers or agnates. They have no specific share in an Islamic principle of inheritance. Therefore, they are the relatives of a deceased who are neither Qur’anic sharers nor agnates. The dhawul Arham may inherit in preference to mutual patron and Bait al-mal in the absence of sharers and agnates (Lakhyi: 2011). According to Qadri (1986); Dhaw-i’-Arham or the uterine kindred, in common speech, have the meaning of relations in an absolute sense. In law, they imply all relations of the deceased who are neither legal sharers to whom specific portions are assigned nor residuaries. They are to inherit in the absence of the legal sharers (except the husband and wife) and of the residuaries. The distant kindred include; 1. Children of daughters 2. Children of sisters in all dimensions 3. Daughters of brothers of all categories 4. Maternal uncle (s) and aunt (s) 5. Paternal aunt (s) 6. Daughter (s) of uncles of all categories etc. This category of relatives to the deceased are only entitled to inherit in the absence of the Qur’anic sharers and the agnates as observed above. However, the presence of any of the husband or wife, as also sharers, could not stop the distant kindred from inheriting what remains of the share of any of the former (husband or wife). Emancipation (Walaa) This refers to a case in which a master emancipating or freeing his slave is entitled to inherit the freed slave in the absence of his biological legal heirs. But the freed slave will not inherit his master in any case (Lakhyi: 2011). It is imperative to note here that, both male and female emancipator inherits the freed slave as an agnate. Thus, if the freed slave died leaving no sharers or agnates from his blood relative, the emancipator takes the whole estate, but with sharers, he 13 inherits what remains after the sharers are given their shares. However, if there exists an agnate that relates to the freed slaves biologically or the sharers exhausted the whole estate, here the emancipator has nothing to inherit (NCE/DLS: 1990). Ihis clearly portrays the fact that; the emancipator is allowed to inherit his freed slave but the latter is not entitled to inherit whatever is left by his emancipator. Bait Al-Mal (The Public Treasury) This is an institution of an Islamic state whose function deals with the wealth and revenue of the state. A deceased Muslim who has neither a sharer nor asabah has his wherewithal appropriated to the Bait al-Mal than to the dhawul arham or emancipator or to some jurists, whereas in some cases in addition to the sharer and agnate, dhawul arham and emancipator are to be considered before bait al-Mal (Lakhyi: 2011). In essence, the public treasury is the last alternative to which the property of a person who died heirless can be disposed. Impediment to Inheritance Impediment refers to those conditions that prevent any successor from getting anything from the estate of the deceased though he is otherwise qualified to the inheritance. The most essential of these impediments include; homicide, difference in religion and slavery. a. Homicide This means the killing and manslaughter or an act of taking the life of a fellow being. It is one of the impediments to inheritance agreed upon by all Muslims. This is applicable where a person kills his relative whom he might inherit if died naturally without the acts of the former. For example, if he kills his father or brother or any other person, he will not inherit from the property of the deceased as well as the blood wit (Diyah) irrespective of the relationship between them (NCE/DLS: 1990). Islam provides the rule of preventing the killer from inheritance to curtail the rampant occurrences of such cases and denies accused person to benefit from the crime he has committed (Abdur-Raheem: 2001, Lakhyi: 2011). 14 This is rule is specifically applied to intentional killing but not for accidental killing. In the case of the later circumstance, if he happens to be among the heirs, he will take his share of inheritance from the deceased’s personal estate only not from the paid blood wit (diyyah) (NCE/DLS: 1990, Lakhyi: 2011, Doi: 1404A.H.). b. Difference in Religion Difference in religion prevents inheritance between persons that are biologically related and are entitled to inherit one another if they are not of the same faith, i.e. Islam. According to Bukhari (undated); A non-Muslim does not inherit a Muslim; neither does a Muslim inherit a nonMuslim as it is illustrated in the following saying of the Prophet (PBUH): “A Muslim does not inherit a non-Muslim; neither does a non-Muslim inherit a Muslim” (Fath Al-Bari, 11/52) What is obvious from this is that Muslim is not allowed to inherit the members of other faiths and also the members of other faiths cannot inherit a Muslim irrespective of the closeness of the two. c. Slavery Slavery is considered by all Muslim Jurists as an impediment to inheritance. That is, slaves will not inherit their relatives and cannot be inherited by them. Whatever is left of the wherewithal belong to their masters. This is associated with the principle that the slave owns nothing, since whatever he possesses is to his master and he himself is regarded as a property to his master (Doi: 1983, Lakhyi: 2011, NCE/DLS: 1990). However, it is pertinent to note that; at present, the question of slaves does not mostly arise for they are not in existence. Their subject is only treated in principle without practical implication. Exclusion from Inheritance (Hajb) Exclusion (hajb) is a condition that affects the right of a person to inherit. Here, the heir does not inherit or get a smaller share of inheritance due to the presence of another heir. It is the prevention of a person from inheritance completely or partially in the presence of a more close relative to the deceased. For example, the son of the son is prevented by the presence of the son (Lakhyi: 2011). It should be noted here that, the excluded person is fully entitled to inheritance but is prevented 15 from inheritance or shifted to smaller share because of the presence of another heir more close to the deceased. Types of Exclusion The principle of Exclusion is broadly divided into; complete and partial exclusion as can be deduced from the definition provided above on Exclusion. Complete exclusion (Hajb al-Hirman) According to Lakhyi (2011), in this form of exclusion, the presence of the first grade relative prevents the second grade relative from inheriting anything from the estate of the deceased. This kind of exclusion does not affect only six legal heirs that include; son, father, husband, daughter, mother and wife, but affects all other heirs. For example, grandparents do not inherit if there are parents, grandson with the presence of son. Partial exclusion This is a type of exclusion in which the presence of first grade reduces the share of the second grade relative. For instance, the presence of children shifts a mother from 1/3 to 1/6, shifts wife from ¼ to 1/8, shifts husband from ½ to1/4, presence of daughter shifts granddaughter from ½ to 1/6, the presence of full sister reduces the share of paternal sister from ½ to 1/6 etc (Lakhyi: 2011). This, therefore, affects only five persons among the legal heirs, that is, husband, wife, mother, daughter of son and paternal sister. Similarly, according to Aliyu (undated), in partial exclusion, the presence of a particular heir will change the position of another from either sharer to agnate or an agnate to sharer. For example, the presence of a son changes the position of a daughter from a sharer to an agnate, instead of inhering half of the estate her position is now to take one share while her brother two. A father’s position of an agnate is changed to a sharer with the presence of a son or grandson. Here, instead of taking the whole estate or what remain he will be given 1/6. Justification for Islamic formula of Inheritance Inheritance in Islam is based on the principles that the deceased’s property is divided among the several legal heirs according to the proportions of the strength of their claims. In order to handle a situation in which the deceased might have left for more than one person, Allah has categorically 16 specified the shares for some of them that are mainly female while the shares of most male heirs are not mentioned. With this, the principle of inheritance is revolving around the sharers (those with specified shares) and the agnates (whose shares are not mentioned). Additionally, the distant Kindred (those not from any of the two categories) emerges as the third group. This practice is connected with the aim of Islam to favor many groups of relatives when it comes to the administration and distribution of the estate of the deceased. Beside this, bequest is also an integral part of the Islamic formula of inheritance in which even the non-heir from relatives and non- relatives may benefit from the property of the deceased. The Qur’anic injunction on inheritance clearly indicates that, men and women are entitled to inherit the estate of their deceased relative as can be seen in the following verse; From what is left by the parents and those nearest related there is a share for men and a share for women whether the property be small or large- a determinate share (Q.4: 7). This verse provides a complete deviation from the system of inheritance that was practice in the pre-Islamic period. It brought a total change with a far-reaching impact on the inheritance system as well as in the rights of women in general, since the woman has been given the right to possess and enjoy property; in contrast of herself as a chattel to be inherited. Consequently, children are also no longer denied from inheriting their relatives. Even the unborn child conceives by the time of the death of the relatives if he falls among the legal heirs (NCE/DLS: 1990). Despite the systematic and comprehensive nature of Islamic system of inheritance, the principle that in some cases the male takes twice the share of the female, if treated in isolation attracts pointing fingers to the system. Sometimes, it is even considered unfair if compared to other legislation. In fact, some accuse and criticize the principle of giving the male double shares of the female as a sort of discrimination to the female. However, this difference is established by Allah himself in the following Qur’anic verse; Allah commands you as regards to your children’s (inheritance); to the male, a portion equal to that of two females (Q.4: 11). However, the opinion of Lemu (1978) provides a logical conclusion and justification to the principle. She opines that; 17  Another right of the Muslim woman which is a part of Islamic law is the right to inherit property. The method of division of inheritance is clearly laid down in the Qur’an and the general rule is that women are entitled to inherit half the share given to a man. This may, if taken in isolation from other legislation, appear to be unfair; however, it must be remembered that in accordance with the verse of the Qur’an quoted earlier, men are charged with the maintenance of all the women and children in their family, and therefore their necessary obligations of expenditure are far higher than those of women. The half-share that a woman inherits may therefore be considered a generous one since it is for her alone. Any such money or property which a woman owns or any business which she runs is entirely her own and her husband has no right to any of it. It is clear from this, that Islam generally imposed certain economic obligations that are not placed on women such as feeding, clothing, medications and provision of shelters to wives, children and other relatives. By implication, most of what a man owns is for the general maintenance of the family in contrast to a woman who is not under such obligations. Thus, given a man double share of a woman is just a kind of relief provided to him (NCE/DLS: 1990). In this regard, Zakariyya (2008) also asserted that; Islam has endowed women with the right to inheritance. Ironically enough, she herself has been an object of inheritance in some cultures and civilizations. Her inheritance is exclusively hers and no one can put any claim to it, not even her father or husband. Her share in most cases is half of male’s share. This could not make one to reach the conclusion that she is worth half a man! This differential in inheritance is only consistence with the differential in financial responsibilities of men and women according to Islamic law. Man is fully responsible for the maintenance of his wife and children and in some cases of his needy relatives, especially the females if they are widowed or divorced. Interestingly, it is pertinent to note that, there are cases in which, despite the mention of a man getting double share of a woman, a woman receives more than what a man will take as his share of inheritance. For example, a man died leaving N 240,000.00 for a wife, mother and ten male children. While the first two, the wife and mother, will be given shares corresponding to their prescribed shares in the Qur’an, the ten male children take what remains as agnates. Thus; the following illustration suffices to justify this; a. Wife= 1/8 of N240,000.00 i.e. N240,000.00 / 8= N30,000.00 b. Mother= 1/6 of N240,000.00 i.e. N240,000.00 / 6=N40,000.00 c. Ten male children (agnates), i.e.: 18  N240, 000.00-N30, 000.00-N40, 000.00=N170, 000.00 /10=N17, 000.00 From the above, it is obvious that the wife is entitled to N30, 000.00, the mother inherits N40, 000.00 and each of the male children inherits only N17, 000.00. In this case, the wife and mother get bigger shares than male children. Another instance in which women get shares larger than that of the men is; if a man died leaving N480, 000.00 for two daughters, a wife and two full brothers; 1. Two daughters- 2/3 0f N480,000.00 i.e. N480,000 /3=N160,000.00 *2=N320,000.00 2. A wife- 1/8 of N480,000.00 i.e. N480,000.00 /8= N60,000.00 3. Two full brothers (agnates)= N480,000.00-N320,000.000-N60,000.00=N100,000.00 In the above illustration, each of the daughters inherits N160, 000.00; the wife takes N60, 000.00 as her share, while each of the two full brothers is entitled to N50, 000.00. Here, too, the women received higher shares than the men. With this, one may justify the fact that, Islamic law of inheritance is in itself a very well balanced and interrelated whole that must not be discussed in isolation but rather be analyzed as a whole. And the principle of man taking double share of a woman does not contravene the Islamic principle of equity and fair treatment to women if the situations are rationally examined in respect of economic obligations expected of each on one hand and the women rights of getting not only shares but also in some situations getting bigger shares than men on the other hand. Conclusion The Islamic system of inheritance, if compared to other practices of several communities, is very comprehensive and systematic for its divine origin. The heirs and their respective portions are divinely determined, thus becoming devoid of human error and free distortions. It favors many of the relatives of the deceased at various levels and even those who are not directly related to the deceased through the principle of bequest/will. All these are with the intention of fostering the spirit of brotherhood and inculcating a wide scope of social and economic responsibilities. Unlike in the pre-Islamic communities where the grounds of inheritance included only male (preferably the eldest or strongest), ability to fight, agreement of contract and adoption; which excluded women, children and the weak, the Islamic principle is based on affinity (blood 19  relationship), marriage and clientage (Wala). The Islamic system also clearly outlines the impediments to inheritance explicitly stating what will exclude an heir totally or partially are also obvious. This neutralizes cases of possible alarm since it is Allah Himself Who determines how the deceased’s estate can be administered and distributed among male and female relatives. References Abdalati, H. (1986). Islam in Focus. Riyadh, National Offset Printing Press. Abdullahi, Y. (2004). “Succession Under Islamic Law: Issues Controversies and Solutions”, in Conference of All Nigeria Judges of the Lower Courts, 2002, National Judicial Institute, Lagos, MIJ Professional Publishers. Abdur-Raheem, T.O. (2001). Islamic Law of Inheritance Made Simple. Lagos, Academic Press Plc. Abudu, A.O. (1999). The Islamic System of Inheritance. India, Picus Books. Aliyu, A. H. M. (undated). Al-Muqaddamatu Al-‘iziyah Lil-Jama’at Al-Azhariyah. Bukhari, A.N.M.E. (undated). Treatise on Inheritance in Islam. Trans. by Abdul Majjed, A., Kano, Merciful Production. Doi, A. (1983). Shari’ah: the Islamic Law. www.asnislamicbooks.com. Lakhyi, S.H. (2011). Al-Mirath Justice of Islam in the Rules of Inheritance. Pakistan, AlMaktabah Al-Muammedia. Lemu, B.A., Heeren, F. (1978). Beirut-Lebanon, Dar Al Arabia. Qadri, A. A. (1986). Islamic Jurisprudence in the Modern World. New Delhi, Taj Company. Zakariyyah, A.I. (2008). Women’s Shield in Islam (Almost Everything You Need to Know About the Position of a Woman in Islam). Jos, Darussaqafatul Arabia Islamic Bookshop. NCE/DLS Course Book on Islamic Religious Studies Cycle 4, Module 8; Inheritance. Kaduna National Teachers’ Institute (NTI) www.islamspirit.com, Translation of Sahih Muslim on the Book Pertaining to the Rules of Inheritance (kitab Al-Fara’id), retrieved on 19/7/2012 20 View publication stats