Q&A: The inheritance of those with relations by the womb (Dhuwu Al-Arhaam)
Assalaamu Alaikum Wa Rahmatullah Wa Barakaatuhu, Our honourable Sheikh, May Allah protect you and keep you under His care. In the book, ‘Funds in the Khilafah State’ in the chapter: ‘The Property that has no Inheritors’ on page 118 the following was mentioned: “Any property, whether movable or immovable, whose owner has passed away without an inheritor by right or by paternal relations such as where a person dies without a wife, children, father, mother, sisters or paternal relations, is transferred to the Bait ul-Maal as inheritance”.
The question is: Does this mean that the Hizb has adopted that the relations of the womb (Dhuwu Al-Arhaam) do not inherit when there are no inheritors by right or of paternal relatives? So in the case where a person dies and there is no inheritor from those who have been stipulated (Furood) and from his paternal relations (‘Asabaat) despite the existence of maternal relatives, does the property that he leaves behind get transferred to the Bait ul-Maal whilst none of the Dhuwu Al-Arhaam (relations of the womb) have any right to what he has left behind? If this is the case then how do we understand that which has been related from Sahl Bin Hunaif; that a man struck another man with an arrow and killed him and that this man did not leave anyone behind apart from a Khaal (maternal uncle). So Abu ‘Ubaidah wrote to ‘Umar about this and so ‘Umar responded to him in writing: Verily I heard the Messenger of Allah ﷺ say:
“Allah and His Messenger are the Mawlaa of the one who has no Mawlaa and the maternal uncle is the inheritor of the one who has no inheritor” (Narrated by At-Tirmidhi, An-Nisaa’i, Ibn Majah, Ahmad and Ibn Habaan). At-Tirmidhi said that this Hadeeth is Hasan Saheeh and Ibn Habaan classified it as Saheeh. At-Tirmidhi said: This is a Hasan Hadeeth.
And Al-Miqdaam Bin Ma’daikrab related that the Messenger of Allah ﷺ said:
“Whoever leaves a pasture then it is to me (and perhaps he said: It is to Allah and to His Messenger) and whoever leaves a property then it is to his inheritors and I am the inheritor of the one who has no inheritor. I pay blood money for him and I inherit him. And the Khaal (maternal uncle) is the inheritor of the one who has no inheritor, he pays blood money on his behalf and he inherits him.” (Related by Ahmad, Abu Dawood, Ibn Majah, At-Tahawii, Ibn Habaan, Al-Hakim, Al-Baihaqi and Ibn Jarood).
Abu ‘Asim related from Ibn Juraij from ‘Amr Bin Muslim from Taawus from ’Aishah (ra) that she said that the Messenger of Allah ﷺ said,
«اَلْخَالُ وَارِثٌ مَنْ لاَ وَارِثً لَهُ»
“The paternal uncle (Khaal) is the inheritor of the one who has no inheritor” (At-Tirmidhi and Ad-Daruqutni). At-Tirmidhi said: This is a Hasan Ghareeb Hadeeth.
These Ahadeeth proves that the Khaal is a Waarith (inheritor) whilst the Khaal (maternal uncle) is from the relations of the womb (Dhuwu Al-Arhaam). Therefore these Ahadeeth indicate that the relations of the womb inherit. And it has been related from Waasi’ Bin Habaan that he said: ‘Thabit Bin Ad-Dahdahah passed away and he did not leave an inheritor or paternal relation and so his affair was raised to the Messenger of Allah ﷺ. So he asked ‘Asim Bin ‘Adiy about him and whether he had left anyone behind «هل ترك من أحد؟» and so he replied: O Messenger of Allah he has not left anyone.
«فدفع رسول الله r ماله إلى ابن أخته أبي لبابة بن عبد المنذر»
So the Messenger of Allah ﷺ gave his property to the son of his sister Abi Lubabah Bin Abdul Mundhir’. (As-Suyooti said in ‘Jaami’ ul-Hadeeth’: Sa’eed Bin Mansoor and its Sanad is Saheeh). And it has been related from Waasi’ Bin Habaan that he said: ‘That Thabit Bin Ad-Dahdanah passed away and he was a man of Bani Aneef or Ban Al-‘Ajlaan. So the Prophet ﷺ said: «هل له من وارث؟»“Does He have a Waarith (inheritor)?” But they were unable to find an inheritor for him. He said:
«فدفع النبي rميراثه إلى ابن أخته أبي لبابة بن عبد المنذر»
So the Prophet ﷺ gave his property to the son of his sister Abu Lubabah Bin Abdul Mundhir’ (Collections of Abdur Razzaaq).
I thank you greatly for your concern and for your answer our Noble Sheikh, May Allah recompense you with good and make the victory and unity occur upon your hands. Ameen. And I apologise for the length of the question. Your sister Umm Faqeeh Abdel Rahman.
From Yuce Ulfa
Wa Alaikum Assalaam Wa Rahmatullah Wa Barakaatuhu,
Before answering this question, it would be better to first explain the following:
Those who have a relation to the dead are divided into three categories within the ‘Ilm (knowledge) of Mawareeth (those who inherit):
As’haab ul-Furood (entitlement) and these are those who are entitled to a quantified portion of the Meeraath (the property being inherited) which the Shariah has stipulated in the text.
Al-‘Asabaat (paternal relations) and these are those who have shares and quantified Furood (entitlements) from the Meeraath (inheritance) however the Shariah has stipulated that they take what is left from the Meeraath.
Dhuwu Al-Arhaam (relations by womb) and these are all of the remaining relatives who are not entitled (i.e. people of the Furood) or the ‘Asabaat. They number ten types: The Khaal and Khaalah (maternal uncle and aunt), the grandfather of the mother (Jadd ul-Umm), the son of the sister, the daughter of the brother, the daughter of the paternal uncle, the paternal aunt, the paternal uncle of the mother, the son of the mother’s brother and whoever attaches to one of them.
There is no dispute amongst the Muslims in respect to the As’haab ul-Furood and ‘Asabaat inheriting due to the clear evidences which have come in respect to them. This is because the Ayat of Al-Mawaareeth (related to inheritance) and the Saheeh Ahadeeth represent clear evidences establishing that they inherit… As for the Dhuwu Al-Arhaam (relations of the womb) there has occurred a difference of opinion in respect to whether they inherit in the time of the Sahabah, the Tabi’een and the Fuqahaa’ who came after them…
Included in those who said that they do inherit from amongst the Sahabah are ‘Ali, Ibn Mas’oud and Ibn ‘Abbaas in the most famous of the reports attributed to him… From the Tabi’een they included Shuraih and Al-Hasan Al-Basri.
Included in those who said that they do not inherit from the Sahabah are Zain Bin Thabit and Ibn ‘Abbas in another report attributed to him… And from the Tabi’een they included Sa’eed Ibn Al-Musayib and Sa’eed Ibn Jubair…
Ash-Shafi’i held that there is no Meeraath (inheritance) for them and that the Bait ul-Maal is more entitled to it than them… And Abu Hanifah said: The Dhuwu Al-Arhaam are more entitled to the inheritance (Meeraath) than the Bait ul-Maal…
As such the Mas’alah (issue) is one in which there are differences of opinion and I will answer in accordance to what is the strongest in our view:
Yes the Hizb adopts the opinion that states that the Dhuwu Al-Arhaam do not inherit when there does not exist the As’haab ul-Furood and the ‘Asabaat and this is apparent in the text that the questioner has presented from the book ‘Funds in the Khilafah State’. And even clearer than that is what was mentioned in ‘The Social System’ under the heading: ‘Maintaining Good Relations with Kith and Kin (Silat-ur-Rahm)’ and states:
(Islam has divided the relations into two categories; firstly the relations from whom it is possible to inherit when they die. And secondly the relatives from the maternal side (Ulu al-Arham). As for the ones who have the right to inherit they are the ones entitled to a statutory portion of inheritance (Ashab al-Furud) and the agnate relations (relatives on the paternal side) (Asabat). As for relatives on the mother’s side (Ulu al-Arham) they are different from the former; they are the ones who have no share in inheritance nor are they from the agnate relations. They include ten categories: The maternal uncle (Khal) and aunt (Khala), maternal grandfather (Jadd li al-umm), son of the daughter and son of the sister, daughter of the brother, daughter of the paternal uncle and paternal aunt, and the half paternal uncle, son of the half brother and whoever declares to be one of them. Allah سبحانه وتعالى did not give those people any share in the inheritance of the person nor is their maintenance an obligation on the person.) End quote. So we adopt this opinion due to the preponderance of the evidences in our view in support of it.
So if a person dies and he does not have an inheritor from amongst the Ashaab ul-Furood and the ‘Asabaat, then the Bait ul-Maal of the Muslims is entitled to his Meeraath (inheritance) i.e. that the Bait ul-Maal is its inheritor. The evidence for that is:
– Al-Haakim extracted in ‘Al-Mustadrak’ and he stated that this is a Saheeh Hadeeth upon the conditions of the Sheikhaini (Al-Bukhaari and Muslim) and they did not (themselves) extract it. Related from Rashid Bin Sa’d from Abi ‘Aamir Al-Hawzaniy from Al-Miqdaam Al-Jindiy (ra) who said: The Messenger of Allah ﷺ said:
“I am the inheritor of the one who has no inheritor; I pay blood money on his behalf and inherit from him..”
These Ahadeeth are Sareehah (explicit) and Waadihah (clear) in respect to the Dalaalah (meaning) indicating that if the person dies and he does not have a Waarith (inheritor) then the inheritor in this case would be him, the Messenger ﷺ. This is because he is the Waliy of the believers in their entirety and the Mawlaa of the one who has no Mawlaa. After him this Wilaayah (guardianship) was transferred to the Khalifah and the Khalifah became the Waliy of the believers in their entirety becoming the Mawlaa of the one who has none and the inheritor of the one who has no one to inherit from him. The inheritance of the Khalifah is not for himself personally but rather it for the Bait ul-Maal of the Muslims. In this way the inheritance of the one who has none to inherit from him turns into State property after having being from the private properties and is placed in the Bait ul-Maal, in the Diwan of Al-Fai’i and Al-Kharaaj. The Khalifah then disposes of it in the way that he views to be in line with the interests of the Muslims.
As for why the Hizb adopts that the Dhawu Al-Arhaam do not inherit then that is because the evidences related to inheritance from the Quran and Sunnah have come in a detailed manner and in a way making clear the Ahkaam (rulings) of the Meeraath (inheritance) and those who are entitled to it and these are:
– As’haab ul-Furood: Included in these evidences is His سبحانه وتعالى Saying:
“Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt”
“And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt…”
–And the ‘Asabaat: From amongst these evidences is his statement ﷺ as extracted by Al-Bukhari and Muslim from Ibn ‘Abbas (ra) that the Prophet ﷺ said:
“Give the Fara’id (the shares of the inheritance that are prescribed in the Qur’an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased” i.e. to the closest inheritor from the ‘Asabaat. The following was mentioned in Fat’h ul-Bari: (Al-Khattabi said that the meaning is: The nearest man (male) from the ‘Asabah and Ibn Battaal said that was is intended is by the wording ‘Uolaa Rajulin’ are the men (males) from the ‘Asabah after the people of the Furood. If there is amongst them the one who is closer to the dead then he is entitled and not the one who is further. If they are equal in closeness (of relation) then they share (in the inheritance)…)
There are no evidences that have come that provide the Dhawu Al-Arhaam shares of the inheritance and the Prophet ﷺ reiterated this meaning in the Hadeeth related by At-Tirmidhi from Abi Umamah Al-Bahili who said: I heard the Messenger of Allah ﷺ saying in the Khutbah in the year of the Farewell Hajj:
“Verily Allah Tabaaraka Wa Ta’Aalaa has given everyone entitled to a right his right, so there is no Wasiyah (will) to the Waarith (inheritor)”.
And this Hadeeth in the Khutbah of the Farewell Hajj is representative of the last of what the Prophet ﷺ spoke about before his death and it is in regards to the subject area of inheritance. Within the speech he explains that those who are rightfully entitled to the Meeraath are those whom Allah سبحانه وتعالى has provided with rights in respect to the inheritance in accordance to what came in the Book of Allah and the Sunnah of His Messenger ﷺ. These are the As’haab ul-Furood and the ‘Asabaat whilst the Dhuwu Al-Arhaam are not included amongst them in the case where Allah سبحانه وتعالى did not give them a share (or allotted portion) from the Meeraath (inheritance).
As for what was presented in the question in terms of narrations indicating that the Dhawu Al-Arhaam have a right in respect to the inheritance then they are not (in fact) indicating that and we will now examine them as following:
1) At-Tirmidhi related in his Sunan from Abi Umamah Bin Sahl Bin Hunaif who said: ‘Umar ibn Al-Khattab wrote in my company to Abu ‘Ubaidah that the Messenger of Allah ﷺ said:
“Allah and His Messenger are the Mawlaa of the one who has no Mawlaa and the maternal uncle is the inheritor of the one who has no inheritor”… However there is another narration that explains the ‘Illah (legal reasoning). Abu Dawood related in his Sunan from Al-Miqdam who said: The Messenger of Allah ﷺ said:
“Whoever leaves a pasture then it is to me.” And perhaps he said: “It is to Allah and to His Messenger and whoever leaves a property then it is to his inheritors and I am the inheritor of the one who has no inheritor. I pay blood money for him and I inherit him. And the Khaal is the inheritor of the one who has no inheritor, he pays blood money on his behalf and he inherits from him”.
By combining the two Hadeeth it becomes apparent that the Khaal who is intended here is the one who يَعْقِلُ عَنْهُ (pays blood money on his behalf) which means that he is from his ‘Aaqilah. (This is whilst the ‘Aaqilah are only from the ‘Asabaat alone. As for other than them from the brothers from the mother and the rest of the Dhuwu Al-Arhaam and the Zawj (husband) and all those who are not from the ‘Asabaat, then they are not considered to be from the ‘Aaqilah. The ‘Aaqilah are the ‘Asabah of the man and these are his brothers, his paternal uncles, his sons and their children/offspring… These (Al-‘Aaqilah) are those who pay the blood money of the unintentional act of killing in the case where only the ‘Aaqilah pays this. The ‘Aaqilah of the man are his ‘Asheerah (clan): His brothers, paternal uncles, his uncle’s sons and even the great-great grandfather…) Al-Uqubat (Punishments) – Chapter of who pays the Diyah (blood money).
Therefore the Khaal who is intended in the Hadeeth is the one who is from the ‘Asabah. This is like if the man was to marry the daughter of his paternal uncle so that the Khaal (maternal uncle) of his son would (also) be the son of his uncle meaning that he would be from the ‘Asabah and not only from the Dhuwu Al-Arhaam. Therefore the Hadeeth indicates that the one who dies whilst not having any inheritors from the As’haab ul-Furood but has a Khaal from his ‘Asabah then he inherits. And there is no dispute (or difference of opinion) in respect to the ‘Asabah inheriting in this situation (or these circumstances).
It was related in the Sunan of Sa’eed Bin Mansoor and in ‘Kanz ul-‘Umaal from Muhammad Bin Yahya Bin Habban from his uncle Waas’I Bin Habban who said: “Thaabit Bin Ad-Dahdaha passed away and he did not leave an inheritor or ‘Asabah and so his affair was raised to the Messenger of Allah ﷺ. So he asked ‘Asim Bin ‘Ad about him and whether he had left anyone behind and so he replied: O Messenger of Allah he has not left anyone. So the Messenger of Allah ﷺ gave his property to the son of his sister Abi Lubabah Bin Abdul Mundhir”. As-Suyooti said in ‘Jaami’ ul-Hadeeth’ that its “Sanad is Hasan”. So it is clear from this narration that Thabit Bin Ad-Dahdaha did not leave a Waarith (inheritor) or ‘Asabah meaning that he did not leave anyone who was entitled to the inheritance and that the
Prophet ﷺ paid the property to the son of his sister and not that he gave it as his right in respect to inheritance. This means he ﷺ acted in his capacity as an Imaam (leader) and so gave the property to the son of his sister in accordance to his right to dispose of this property. Therefore this Hadeeth is an evidence indicating that the Dhawu Al-Arhaam are not possessors of the right in respect to the inheritance and it is not a Daleel indicating that they are inheritors. This is clear in the first narration when it stated: (ولم يدع وارثا ولا عصبة). (He did not leave behind a Waarith (inheritor) or an ‘Asabah).
That which confirms this is that the Messenger ﷺ was asked about the inheritance of the ‘Ammah (paternal aunt) and the Khalah (maternal aunt) and he ﷺ said:
«لا ميراث لهما»
“There is no inheritance for the both of them.”
The Hadeeth in full: Al-Hakim extracted in Al-Mustadrak upon the conditions of the two books of Saheeh and said that the Hadeeth is Saheeh in its Isnaad (chain of transmission of narration): From Ibn ‘Umar (ra) that he said: The Messenger ﷺ proceeded upon a donkey and a man approached him and then said: O Messenger of Allah, a man who has left behind his paternal aunt and maternal aunt and he has no inheritor other than them? He (Ibn ‘Umar) said: So he lifted his head to the sky and then said: «اللَّهُمَّ رَجُلٌ تَرَكَ عَمَّتَهُ وَخَالَتَهُ لَا وَارِثَ لَهُ غَيْرُهُمَا»“Allahumma, a man who has left his paternal aunt and maternal aunt and has no inheritor for him other than these two”. Then he said: «أَيْنَ السَّائِلُ؟»“Where is the questioner?” He said: Over here. He ﷺ said: «لَا مِيرَاثَ لَهُمَا» “There is no inheritance for them.”
Although the ‘Ammah (paternal aunt) and Khaalah (maternal aunt) are from the relations of the Arhaam the Messenger of Allah ﷺ did not make them of those who are entitled to the inheritance.
However, the Hadeeth of Abu Lubabah provides an indication that if the dead person does not have an inheritor from the As’haab ul-Furood or the ‘Asabaat that the Khalifah can provide the Dhawu Al-Arhaam from what the deceased has left whether this is the whole amount or some of it. This means that it is not a Fard (obligation) for all of it to be put in the Bait ul-Maal if the dead person has Dhawu Al-Arhaam. This does not contradict our statement and opinion as stated in ‘Funds’ when it says that the money of the dead would be in the Bait ul-Maal if the dead person does not have inheritors from the As’haab ul-Furood or ‘Asabaat. This is because the Khalifah is the one who handles and disposes of this property according to what he views to be in the interest of the Muslims. Therefore it is for him to give the property left behind by the dead to his Arhaam if that person does not have inheritors from the As’haab ul-Furood and the ‘Asabaat. Therefore if the Bait ul-Maal of the Muslims is non-existent in the absence of the existence of the Khalifah then the property of the dead that has no inheritor from the As’haab ul-Furood and the ‘Asabaat, that this property is paid (or given) to the Dhawu Al-Arhaam because they have more right to the money than other than them when the Imaam is absent.
This is the preponderant (strongest) view in the issue of the inheriting of the Dhawu Al-Arhaam and Allah is the Most Wise and Most Knowledgeable.