كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمْ الْمَوْتُ إِنْ تَرَكَ خَيْرًا  الْوَصِيَّةُ  لِلْوَالِدَيْنِ  وَالْأَقْرَبِينَ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ  فَمَنْ بَدَّلَهُ بَعْدَمَا سَمِعَهُ فَإِنَّمَا إِثْمُهُ عَلَى الَّذِينَ يُبَدِّلُونَهُ إِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ فَمَنْ خَافَ مِنْ مُوصٍ جَنَفًا أَوْ إِثْمًا فَأَصْلَحَ بَيْنَهُمْ فَلَا إِثْمَ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ (2 :180-2).

When death approaches any one of you and you are leaving behind some wealth, it is incumbent upon you to make a will in favour of your parents and relatives according to the conventions [of society]. This is an obligation imposed upon the God-fearing. Then if anyone changes the will after hearing it, then its sin shall rest on those who change it. Indeed, God hears and knows [all things]. But anyone who fears partiality or wrongdoing on the part of the person who has made the will, and he makes peace between them, then there is nothing sinful in this. For Allah is Forgiving, Ever-Merciful. (2:180-2)

    The verses of Surah Nisa (quoted below) which ascertain a specific share for each heir and their placement in the Qur’an clearly show that the above mentioned directive of making a will for the parents and relatives according to the conventions of society was revealed earlier. These verses of Surah Nisa also explain that the reason the Almighty has ascertained the shares of parents and relatives in the legacy of a deceased is that man cannot know who among his relations is near to him in benefit. Also, in these verses, the Almighty has called this ascertaining of shares as His will, against which no Muslim, it is evident, should dare make his own will. The following verse also corroborates this fact:

لِلرِّجَالِ نَصِيبٌ مِمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيبًا مَفْرُوضًا(7:4).

From what is left by parents and those nearest related, there is a share for men and a share for women whether small or large – a fixed share. (4:7)

    In view of this, it is clear that the verses of Surah Nisa abrogate the above quoted directive of Surah Baqarah. However, the purpose of this abrogated directive in the words of Imam Amin Ahsan Islahi was:

The directive of making a will in favour of one’s parents and relatives mentioned in this verse was contingent upon the conventions of the society, and was given in the interim period when the Islamic society had not become stable enough to be given the directives which were later revealed in Surah Nisa. It was revealed as a temporary directive before circumstances became conducive for detailed directives in this regard. It had two basic objectives: first, to immediately safeguard the rights of those relatives which were being usurped by influential relatives and second to revive once again the conventions of the society in this regard which had existed in the nobility of Arabia but were engulfed in the dust of the age of ignorance  (Jahiliyyah); this revival would pave the way for the detailed law that was to be revealed later.⁴⁵

يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ (11:4).

God enjoins you about your children that a boy’s share is equal to that of two girls’. And, if there are only girls among the children and they are more than two, then they shall receive two-thirds of the inheritance, and, if there is only one girl, then her share is half. (4:11)

    It is this directive of the surah which abrogates the verse of Surah Baqarah quoted before. It first of all mentions the share of the children:
    The sentence ‘يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ’ (God enjoins you about your children) acts as a prelude to ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two girls’). The word ‘اولاد’ (awlad) denotes both the female and the male offspring. Hence, the correct sentence analysis in this writer’s opinion is:  ‘للذكرمنهم مِثْلُ حَظِّ الْأُنثَيَيْنِ’ ([among the children] a boy’s share is equal to that of two girls’).
    If this directive had ended on the words ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two girls’), then it would have meant:
    (i) If the children of a deceased are only a boy and a girl, then the boy will receive twice as much as the girl.
    (ii) If the number of boys and girls exceed this, then the inheritance shall be divided among them in a manner that each boy receives twice the share of a girl.
    (iii) If there are only boys or only girls, then the whole inheritance shall be given to whoever among the two is present.
    The third case is also, quite evidently, an essential outcome of the style and pattern of the verse. If it is said that this money is to be distributed among beggars and a male beggar is to be given twice the amount of a female beggar, then this means nothing except that the money is actually meant for the beggars; hence if all beggars are men, all the money shall be distributed among them and if all the beggars are women, then also the same procedure shall be adopted. But the directive does not end here: an exception immediately follows, thereby amending it.
    The sentence ‘فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَك’ (and if there are only girls among the children and they are more than two, then they shall receive two thirds of the inheritance) is an exception to ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two girls’). This means that if among the children of the deceased there are girls, then whether they are two or more, their share is two-thirds. The words ‘وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْف’ (and if there is only one girl, then her share is half) are co-ordinated to this exception by the copulative particle (harf-i-‘atf)  ‘وَ’ (and).
    This writer has interpreted the meaning of ‘فَوْقَ اثْنَتَيْنِ’ as ‘two or more than two’. The reason behind this is that before it, the word ‘اثْنَتَيْنِ’ (two) has been suppressed, which is owing to the style and pattern of the Arabic language. If, in the language of the Qur’an, the share of a girl and of two or more girls are to be stated separately owing to a difference in their proportions, then there can be two ways of doing so. If an ascending order arrangement is adopted, then the share of one girl shall be stated first followed by the share of two girls. If the share of more than two girls is to be the same as that of two girls, then there is no need to mention it in words. After specifying the share of two girls after that of one, owing to a difference in their amount, if a silence follows, then this is a clear indication that the share of two or more girls is equal to that of two girls’. If a descending order arrangement is employed, then again, the words ‘فَوْقَ اثْنَتَيْنِ او اثنتين’ (more than two or two) are inappropriate as regards the linguistic style and pattern of Arabic; so after stating the shares of more than two girls, the share of one girl will be stated. In this style and arrangement, the commencement of a sentence by ‘فَوْقَ اثْنَتَيْنِ’ bears evidence to a suppression of the word ‘اثْنَتَيْنِ’ before it. A little deliberation shows that the verse readily suggests this fact. The order of the arrangement demands that ‘اثْنَتَيْنِ’ should come after ‘فَوْقَ اثْنَتَيْنِ’, while linguistic considerations dictate that ‘اثنتين’ should come before ‘فَوْقَ اثْنَتَيْنِ’. To fulfill both these requirements, the Qur’an has suppressed the word ‘اثْنَتَيْنِ’ by adopting an elliptical style of expression in the descending order arrangement. In the last verse of Surah Nisa, these shares are stated in an ascending order. Accordingly, we observe there that ‘فَوْقَ اثْنَتَيْنِ’ is suppressed after ‘اثْنَتَيْنِ’:
 

إِنْ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ مَا تَرَكَ وَهُوَ يَرِثُهَا إِنْ ‘ لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ مِمَّا تَرَكَ (176:4).

If a man dies childless and he has only one sister, she shall inherit half of what he leaves and if a sister dies childless, then her  brother shall be her heir; and if there are two sisters, they shall inherit two-thirds of what he [or she] leaves. (4:176)

وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِنْ كَانَ لَهُ وَلَدٌ فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ (11:4).

And if the deceased has children, then the parents shall inherit a sixth each, and if he has no children and only the parents are his heirs, then his mother shall receive a third, and if he has brothers and sisters, then the mother’s share is the same one-sixth after the payment of any legacies he may have bequeathed and after discharging any debts he may have left behind. (4:11)

    The copulative particle ‘وَ’ (and) in ‘وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَك’ (and if the deceased has children, then the parents shall inherit a sixth each) does not co-ordinate this clause either to ‘فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ’ (and if there are only girls among the children and they are more than two) or to ‘وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْف’ (and if there is only one girl, then her share is half); in fact, it co-ordinates it to the whole directive above which relates to the shares of the children. Hence this co-ordination (‘atf) is not copulative (li’l-jami‘), rather it is emendative (li’l-istidrak) in nature. The reason is that though it is clear from the words ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is twice a girl’s), their actual proportion has not been indicated. This linguistic style can be appreciated from an example: If it is said: ‘This money is for the children. Let each boy receive twice as much as a girl, and let the father receive half the amount’, any person who has even a little linguistic sense will clearly understand these sentences to mean that the money is actually meant for the children. If these sentences had ended without a mention of the father’s share, then all the money would have been distributed among the boys and girls in the proportion indicated. But since the father is also to be given half the amount, it is imperative that the father should first receive this amount and then what remains should be distributed among the children. It has been explained above that the expression ‘فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ’ (and if there are only girls among the children and they are more than two) is an exception to ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two girls’) and explains one of its aspects, as has been pointed out before. If this is correct, then it cannot be taken as an independent clause like ‘…وَلِأَبَوَيْهِ’ (and for the parents …) and it cannot have a different implication than ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two girls’). The total implied meaning can be appreciated by an example: ‘In this amount, Omar, Ali and Saeed have exactly equal shares, and if only Ali and Saeed are present, then let Ali receive two-thirds and Saeed one-third, and give ten rupees from this to their sister.’ A little deliberation shows that though it has been said that in the absence of Omar, Ali and Saeed shall receive two-thirds and one-third respectively, an amendment at the end necessitates that ten rupees from the amount should first be given to the sister, and whatever remains should be distributed between Ali and Saeed according to their shares.
    The verse under discussion is also of the same style. Consequently, if this is kept in mind, then it is not at all difficult to comprehend that after the clause ‘وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْف’ (and if there is only one girl, then her share is half), the shares of the parents and the spouses which are co-ordinated to the shares of the children by the copulative particle ‘وَ’ (and) shall all necessarily be distributed first and whatever remains shall only be distributed among the children. Whether among the children, there are only boys or both boys and girls, the same principle shall apply. Similarly, if only female offspring are present, then they shall receive two-thirds or half (whatever the case may be) from the remaining inheritance and not in any case from the total inheritance.
    This is the correct meaning of the verse. Any person, who after comprehending the implications denoted by the particle ‘وَ’ (and) in ‘وَلِاَ بْوَيْهِ’ (and for the parents), and the particle  ‘ف’ (then)  in  ‘فَإِنْ كُنَّ نِسَاءً’ (then if there are only girls) reads the verse, shall spontaneously reach the same conclusion.
    Consider, next, the remaining part of the verse:
    The word ‘وَلَدٌ’ (walad) in ‘إِنْ كَانَ لَهُ وَلَدٌ’ (if he has children) and ‘فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ’ (if he does not have children) is used both for male and female children. In the Arabic language, this connotation is conventional and customary. There is no contextual indication, intrinsic or extrinsic, to believe that the word has specifically been used for male children. Linguists maintain that it is used in the singular as well as the plural sense and, also, both for the masculine and the feminine gender. In all the cases mentioned, whether boys and girls in the indicated numbers are present or absent, these connotations of the word shall be considered understood.
    According to the linguistic principles of Arabic, after the words ‘فَلِأُمِّهِ الثُّلُثُ’ (the mother’s share is one-third) the words ‘وَلِاَبيِْهِ الُّثلُثَان’ (and the father’s share is two-thirds) or words of similar meaning are suppressed, as is readily suggested by the words ‘وَوَرِثَهُ أَبَوَاهُ’ (and his parents are his heirs). Hence, this mention is a clear proof of the suppression. When it is said ‘If the heirs of this money are only Zahid and Ali, then Zahid’s share is one third’, then after this there is no need to say that ‘the remaining two-thirds is for Ali’ – something which is understood by all requisites of common sense.
    Also, in this writer’s view, after ‘فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُس’ (and if he has brothers and sisters, then the mother’s share is the same one-sixth) the words ‘وَلِاَبِيْهِ السُّدُس’ (and the father’s share is [also] one-sixth) or words of similar meaning are suppressed. The contextual indication for this is also very evident. If brothers and sisters are present, then the mother’s share is the same one-sixth as in the case when a deceased has children. This also bears witness to the fact that the father’s share is also the same and that there is no need to express it in words. If a reader relishes the finer aspects of a language, he instinctively concludes that if the mother’s share has reverted to its original amount, so should the father’s share. Thus, the correct analysis of these verses is: ‘If there are children, then both the father and the mother shall receive one-sixth. If there are no children and only parents are the heirs, the mother’s share is a third, but if there are brothers and sisters, then the mother’s share is the same one-sixth’. One can very well see how this style effectively induces the mind to spontaneously jump to the suppressed words: ‘and the father’s share is also the same one-sixth’.
    It is clear from these verses that in the absence of children, brothers and sisters take their place. This view is endorsed by the last verses of the surah also, but we shall delay an explanation until these verses are discussed later in this article.
    The word ‘إِخْوَةً’ (ikhwatun), in this writer’s opinion, only signifies the existence of an entity. It merely specifies that in the presence of brothers and sisters regardless that they are one, two, or more in number, the parental shares revert to their original amount. Plurality here does not indicate a numerical amount, rather it only denotes the existence of an entity. To quote a Hamasi poet:

    (Avoid entangling yourself in a matter in which if the paths that lead to it (mawarid) are wide, those that come out (masadir) are narrow.)

    The poet has used the words ‘موارد’ (mawarid) and ‘مصادر’ (masadir). It will be outright injustice to this literary composition if it is interpreted to mean that it urges the reader to refrain from getting involved in matters whose ‘موارد’ (mawarid) and ‘مصادر’ (masadir) are, after all, three or more. The poet only intends to establish the existence of a ‘مورد’ (mawrid) and a ‘مصدر’ (masdar) and obviously has no intention to convey their numerical amount. There may be only one way of getting involved and withdrawing from an affair and there may be several ways to do so. Similarly, a deceased may leave behind a brother and a sister and they can also be five or ten. The word ‘إِخْوَةً’ (ikhwatun) encompasses all these different cases. To convey such meanings, a language employs this style of plurality. If it is said: ‘If you have children, then give these sweets to them’, no one will consider this to mean that if the addressed person has only one child, then he cannot be given the sweets, merely because the word children has been used by the speaker. Such a meaning can only be inferred by someone who, instead of appreciating a language in literary perspectives, starts analysing it on the basis of crude mathematical axioms.
    The words ‘مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ’ (after the payments of any legacies he may have bequeathed, and after discharging any debts he may have left behind) at the end of the directive imply that if a deceased has outstanding debts to his name, then first of all they must be paid from the wealth he has left behind. After this, a part of his legacy which he might have bequeathed shall be paid, and whatever remains shall be distributed among the heirs. Though the directive of discharging of debts has been stated at the end of the verse, it shall be given priority over all payments. The reason is that a person from whom money is borrowed has a rightful share in the wealth of a deceased borrower before his death, while an heir becomes a rightful shareholder in a person’s wealth only after his death. As far as the precedence of the payment of any bequeathed legacy in the actual statement of the verse is concerned, it owes much to a touch of elegance in presentation – a distinctive feature of Qur’anic Arabic.

آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا فَرِيضَةً مِنْ اللَّهِ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا (11:4).

You know not who among your children and parents are nearest to you in benefit. This is the law of God. Indeed, God is Wise and All-Knowing. (4:11)

    The reason why this part of the verse is juxtaposed between the ones which state the shares of the heirs is that it should become clear to people that since the Almighty Himself has indicated who the heirs of a deceased should be a more just law in this regard could not have been enacted. Hence, after this Divine Directive, no one has the right to bequeath his wealth in favour of the heirs designated by the Almighty Himself. This distribution is based on the immense knowledge and wisdom of Allah, which encompass all His directives. Man, in spite of his formidable talents, can neither acquire the vastness of His knowledge nor comprehend the profundity of His wisdom. If he is a true believer, he must submit to the Word of God.
    This is the real meaning of the verse. However, a little deliberation shows that the right to obtain an inheritance is based on the underlying cause of ‘اَقْرَبُ نَفْعا’ (the closest in benefit). This benefit is by nature present in parents, children, brothers, sisters, husbands, wives and other close relations. Hence, in normal circumstances, they will be considered the heirs to the legacy of a deceased. However, in certain unusual circumstances, if an absence of benefit in any of these relationships is diagnosed by sense and reason, then the style and pattern of the verse demands that such a relative should not become an heir to the legacy. Therefore, in such cases, if someone is deprived from his share, then it would be perfectly in accordance with the purport of the verse, to which its words so clearly testify. In view of this, the Prophet (sws) is reported to have said about the Idolaters and the People of the Book of Arabia:

لَا يَرِثُ الْمُسْلِمُ الْكَافِرَ وَلَا الْكَافِرُ الْمُسْلِمَ (بخاري: رقم 6764).

A Muslim cannot be an heir of a Kafir nor can a Kafir be a Muslim’s. (Bukhari: No. 6764)

    In other words, after the Quraysh and the People of the Book were left with no excuse to deny the truth which had been unveiled to them in its ultimate form, their enmity and hostility became very clear. Consequently, the benefit of kinship between them and the Muslims stood completely severed. Hence, they could not inherit from one another.
    A secondary guidance which is also obtained from this verse is that if in certain cases legacies are left over after distribution and the deceased has not made anyone an heir in them, then they too should be distributed to the ‘اَقْرَبُ نَفْعا’ (the closest in benefit). This is precisely what the Prophet is reported to have said:

أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا فَمَا بَقِيَ فَهُوَ لِأَوْلَى رَجُلٍ ذَكَرٍ. (مسلم: رقم 1615).

Give the heirs their share and if something remains, it is for the closest male [relative]. (Muslim: No. 1615)

وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِنْ لَمْ يَكُنْ لَهُنَّ وَلَدٌ فَإِنْ كَانَ لَهُنَّ وَلَدٌ فَلَكُمْ الرُّبُعُ مِمَّا تَرَكْنَ مِنْ بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِنْ لَمْ يَكُنْ لَكُمْ وَلَدٌ فَإِنْ كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُمْ مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ (12:4).

And to you belongs a half of what your wives leave, if they die childless. And if they have children, a quarter of what they leave shall be yours after payment of any legacies they may have bequeathed and after discharging any [outstanding] debts. Your wives shall inherit a quarter of what you leave, if you die childless. If you have children, then they shall inherit one-eighth, after payment of any legacies you may have bequeathed, and after discharging any of your [outstanding] debts. (4:12)

    The shares of the spouses are very clearly stated and need no explanation. After the payment of debts and any bequeathed legacy, these shares shall be given from the total remaining inheritance of a deceased.

وَإِنْ كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوْ امْرَأَةٌ وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ مِنْ بَعْدِ وَصِيَّةٍ يُوصَى بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ وَصِيَّةً مِنْ اللَّهِ وَاللَّهُ عَلِيمٌ حَلِيمٌ (12:4).

If a man or a woman is made an heir on account of his [or her] kalalah relationship [with the deceased] and he [or she] has one brother or sister, then the brother or sister shall receive a sixth, and if they be more than this, then they shall be sharers in one-third, after payment of any legacies bequeathed and any [outstanding] debts – without harming anyone. This is a command from God, and God is Gracious and All-Knowing. (4:12)

    The most important word in this verse is ‘َكَلَالَة’ (kalalah). Originally, it is a ‘مصدر’ (verbal noun) in the meaning of ‘كلال’ (kalal) ie, ‘feebleness and frailty’. To quote a line from Aa‘sha’s poetry: 

فآليت لا ارثى لها من كلالة

    (Then I swore that I shall not show any mercy on her because of her feebleness and frailty.)

    Mutammim Ibn Nuwayrah says:

فكانها بعد الكلالة والسرى
علج تغاليه قذور ملمع
faka annaha ba‘da al-kalalati wa al-sura
‘iljun tughalihi qadhurun mulmi‘u

    (That [she] camel after the night’s tiring journey is indeed like a wild ass whom even a pregnant donkey tries to overtake.)

    Figuratively, linguists attribute the following three meanings to this word:
    i) A person who leaves behind neither parents nor children.
    ii) Any relationship which is not through the parents or children.
    iii) All of one’s relatives except the parents and children.
    Zamakhshari writes in his Kashshaf: 

ينطلق على ثلاثة على من لم يخلف ولداً ولا والداً، وعلى من ليس بولد ولا والد من المخلفين، وعلى القرابة من غير جهة الولد والوالد. ومنه قولهم: ما ورث المجد عن كلالة، كما تقول: ما صمت عن عيّ، وما كف عن جبن. والكلالة في الأصل: مصدر بمعنى الكلال، وهو ذهاب القوّة من الإعياء. قال الأعشى: فآليت لا ارثى لها من كلالة ’ فاستعيرت للقرابة من غير جهة الولد والوالد، لأنها بالإضافة إلى قرابتهما كالة ضعيفة، وإذا جعل صفة للموروث أو الوارث فبمعنى ذي كلالة. كما تقول: فلان من قرابتي، تريد من ذوي قرابتي. ويجوز أن تكون صفة كالـهجاجة والفقاقة للأحمق.

‘كلاله’ (kalalah) has three meanings: It is an adjective used for a person who leaves behind neither parents nor children; it also means all the relatives of a deceased except his parents and children, and it also denotes the relationships which are not through [the deceased’s] parents or children. The Arabs say: ‘ما ورث المجد عن كلالة’ (ma warith al-majda ‘an kalalatin: he could not become an heir to nobility because of a distant relationship). Likewise, you say: ‘ماصمت عن عى’ (ma samata ‘an ‘ayyin: he did not become quiet because he was unable to speak and ‘ماكف عن  جبن’ (ma kaffa ‘an jubnin: he did not stop because of cowardice). And ‘كلالة’ (kalalah) is a ‘مصدر’ (masdar: verbal noun) meaning ‘كلال’ (kalal). ‘كلال’ (kalal) means loss of strength because of weakness.  Aa‘sha says:  ‘فآليت لاارثى لها من كلالة’ (fa a laytu la arthi laha min kalalatin: then I swore that I shall not show any mercy on her because of her feebleness and frailty). Later, it was figuratively used for the relationship which is not through the parents and children. The reason for this being that such a relationship is not as strong as the one through the parents and children. And when it is used as an adjective of a legatee or a legator it means ‘ذو كلالة’ (dhu kalalah). Similarly, you say ‘فلان من قرابتى’ (falanun min qarabati) ie,  ‘فلان من ذوى قرابتى’ (falanun min dhawi qarabati), and it can also be an adjective like ‘هجاجة’ (hajajah) and ‘فقاقة’ (faqaqah) meaning ‘foolish’.⁴⁶

    This writer could not find the word used in the first meaning, ie ‘a person who does not leave behind either parents or children’ in pre-Islamic Arabic poetry though this usage is grammatically correct.
    It is used at many instances in pre-Islamic Arabic poetry in the second meaning, ie the relationship not through the parents or the children.
    To quote Tirmah:

    (He waves his weapon which he did not inherit because of a distant relationship. Through it he pierces the part concealed in her thighs.)

    ‘Amir Ibn Tufayl says:

    (And the tribe of ‘Amir did not make me the chief because of a distant relationship.)

    According to Lisanu’l-‘Arab:

والعرب تقول: لم يرثه كلالة اي لم يرثه عن عرض  بل عن قرب واستحقاق

The Arabs say: ‘لم يرثه كلالة’ (lam yarith hu kalalatan), ie owing to his distant relationship, he did not become an heir, but he inherited the legacy because of nearness and entitlement to it.⁴⁷

    The third meaning attributed to it, ie all relatives of a person except his parents and children is verified by many examples in pre-Islamic Arabic literature.
    A Hamasi poet, Yazid Ibn al-Hakam, while admonishing his son says:
 

والمرء يبخل بالحقوق وللكلالة مايسيم
wa al-mar’u yabkhalu bi’l-huquqi wa li’l-kalalati ma yusim

    (Man shows miserliness in discharging his duties and after his death, his distant relatives take away his animals which graze in the forests.)

    Azhari has quoted a poet’s couplet:

    (If a person is oppressed and persecuted, it is his father who, in his support, is infuriated the most. Kalalah relatives are not infuriated to  this extent in such a matter.)

    To quote a Bedouin: 

مالى كثير و يرثنى كلالة متراخ نسبهم

I have a lot of wealth and my heirs are distant relatives.⁴⁸

    Imam Muslim has quoted the following words in a Hadith narrated by Jabir (rta):

يا رسول الله ’ إنما يرثنى كلالة (مسلم: رقم 1616)

O Prophet of Allah ! only kalalah are my heirs. (Muslim: 1616)

    Many Ahadith, quoted in Tafsir works, endorse this meaning. Abu Bakr Jassas writes in his Ahkamu’l-Qur’an:

وروى عن ابى ابكر الصديق وعلى وابن عباس في احدي الروايتين ان الكلالة ماعدا الوالد والولد ’ وروى محمد بن سالم عن شعبى عن ابن مسعود انه قال : الكلالة ماخلا الوالد والولد ’ وعن زيد بن ثابت مثله

In this regard, there are two narrations attributed to Abu Bakr, ‘Ali and Ibn Abbas. One of them says that all except the father and the children are ‘كلاله’ (kalalah) and Muhammad Ibn Salim reports from Sha‘bi, who reports from Ibn Mas‘ud that all except the father and the children are ‘كلاله’ (kalalah) and Zayd Ibn Thabit has also reported this meaning.⁴⁹

    Now, let us consider the verse under discussion. Though our jurists have unanimously preferred the first meaning here, yet the verse itself testifies against this meaning. If we carefully analyze verses 11 and 12 of Surah Nisa from ‘يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ’ (God enjoins you about your children), it is observed that after a mention of the shares of the children and the parents, the Almighty has directed us to carry out the distribution of legacy by the words ‘مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ’ (after the payment of any legacies he may have bequeathed and after discharging any debts he may have left behind). The directive is repeated in the shares of the spouses: ‘مِنْ بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ’‘مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ’. A little contemplation shows that in all these instances the verb is used in the active voice and the antecedents of ‘يُوصِي’ (yusi), ‘يُوصِينَ’ (yusina) and ‘تُوصُونَ’ (tusuna) are clearly stated in each of these sentences. But in the verse of ‘كلاله’ (kalalah), the verb is used passively. This departure tells us that the subject (fa‘il) of the verb ‘يُوصَى’ (yusa) ie, the legator in this verse is not stated. Therefore, in this verse, the word ‘كلاله’ (kalalah) cannot be regarded as an adjective for the deceased. The change conclusively testifies that the Qur’an has not used the word in its first meaning, ie a person who does not leave behind either parents or children.
    As far as the second and third meanings are concerned, any of the two can be preferred on the basis of a more delicate grammatical construction, because in both cases the implied meaning remains the same. Hence in this verse the verb ‘يُورَثُ’ (yurathu), in the opinion of this writer, is from the if‘al category used in its passive form and ‘كلاله’ (kalalah) is ‘مفعول له’ (maf‘ul lahu: an accusative on account of which something is done). ‘كان’ (kana) here is ‘ناقصه’ (naqisah: incomplete) and ‘يُورَثُ’ (yurathu) is its ‘خبر’ (khabr: inchoative). ‘رجل او امرأة’ (rajulun aw imra’atun) are the ‘اسماء’ (asma: nouns) of ‘كان’ (kana). Keeping in mind this analysis of the verse, it can be translated thus: ‘and if a man or a woman is made an heir because of his (or her) kalalah relationship...’
    Naturally, only the deceased person will have the right to make someone his heir. Since the second object of the passive verb ‘يُورَثُ’ (yurathu) is not stated, linguistic principles dictate that, in the given context, the verse should only mean that a ‘كلاله’ (kalalah) relative can be made an heir together with the rightful heirs as well in cases when a portion of the inheritance remains after it has been distributed among the rightful heirs and also when none of them is present.
    Consider now the next part of the verse: وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ مِنْ بَعْدِ وَصِيَّةٍ يُوصَى بِهَا أَوْ دَيْن (if a man or a woman from the associations of a single relationship is made an heir and has one brother or one sister, then he (or she) will be given one-sixth of what the heir himself receives and if the heir has more than one brother or sister, then they shall share equally in a third of what the heir himself receives, after all outstanding debts are paid off and the legacies he may have made distributed). After this, there remains no need to say that the remaining five-sixths or two-thirds (whatever might be the case) shall be given to the person whom the deceased had made his heir. If it is said: ‘Ahmad has made your son the heir of his wealth, but if he has a brother then the brother shall be entitled to a third of his share’, it clearly means that after the brother receives his share, the remaining money should be given to the son who has actually been made the heir.
    This directive of the Qur’an has a very sound reason behind it. Naturally, a deceased can choose to make any brother, sister, aunt or uncle (the kalalah relatives) his heir. But there can be other brothers or uncles besides the one who has been made an heir by a deceased. The case is no different for sisters or aunts also. A person can prefer any uncle or aunt. But the Almighty does not approve of totally depriving all other associations of the same relationship of any share. Therefore, if a person, for example, has made one of his paternal uncles, Saeed, the heir to his remaining estate in the presence of two other paternal uncles, then the two shall share equally in a third of what Saeed receives, and Saeed himself shall receive the remaining two-thirds.
    Consider now the remaining part of the verse. The words of the Qur’an are: ‘غَيْرَ مُضَارٍّ وَصِيَّةً مِنْ اللَّهِ وَاللَّهُ عَلِيمٌ حَلِيمٌ’. These words at the end of the verse serve as a warning that making someone an heir should not be a source of harm for any of the rightful heirs. To dispel any element of foul play, the Almighty Himself has fixed the shares of the real heirs. Since, according to the verse, a person can make any of his ‘كلاله’ (kalalah) relatives his heir, it is emphatically stated that, while exercising this prerogative, the rights of a rightful heir should not be usurped – this is not a piece of advice from an earthling. It is what the Creator of the heavens and the earth has directed us about. If any of His creation deliberately deprives a rightful claimant from his share, then he should be aware that God has knowledge of all his deeds, and, if he errs unintentionally, the Almighty is Gracious and Merciful. He does not burden a person with a responsibility he cannot fulfill. All His directives bring ease and facility for His creation and are not meant to put them through hardship and difficulty.

يَسْتَفْتُونَكَ قُلْ اللَّهُ يُفْتِيكُمْ فِي الْكَلَالَةِ إِنْ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ مَا تَرَكَ وَهُوَ يَرِثُهَا إِنْ لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ مِمَّا تَرَكَ وَإِنْ كَانُوا إِخْوَةً رِجَالًا وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ يُبَيِّنُ اللَّهُ لَكُمْ أَنْ تَضِلُّوا وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ (176:4).

People ask your pronouncement. Say: God enjoins you about your kalalah heirs that if a man dies childless and he has only a sister, then she shall inherit half of what he leaves and if a sister dies childless, then her brother shall be her heir; and if there are two sisters, then they shall inherit two- thirds of what he [or she] leaves. If there are many brothers and sisters, then the share of each male shall be that of two females. God expounds unto you that you err not and God has knowledge of all things. (4:176)

    Since, according to the interpretation given above, all brothers, sisters, uncles and aunts are ‘كلاله’ (kalalah) relatives and a person can make anyone of them his heir, it is possible that he might prefer an aunt or an uncle over his brothers and sisters. If a deceased has children, then the nature of the directive is proper in all respects, but if the deceased has no children and has brothers and sisters, then this authority vested in him stands objected to. It is an unquestionable reality that after one’s children, one’s brothers and sisters among his ‘كلاله’ (kalalah) relatives are nearest to him. Common sense demands that in such a case they should receive a large portion of the legacy. Verses 11-12 of Surah Nisa clearly state that if a deceased has brothers and sisters, then the parents shall receive a sixth each. Since this share is the same as what they receive in the presence of children, the question arises whether it has still been left to a person to make the brothers and sisters his heirs, or can he deprive them of a share in his wealth. While explaining verses 11-12 of Surah Nisa, it was written that the style of the verses is such that in the absence of children, the brothers and sisters of a deceased should be his heirs. But obviously, the meaning unfolded by a particular style cannot be as certain and definite as the one which is directly stated in words. In the absence of children, the question about the shares of brothers and sisters can even arise today. It had arisen in the time of the Prophet (sws) as well. Jabir (rta) reports:

دَخَلَ عَلَيَّ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَأَنَا مَرِيضٌ لَا أَعْقِلُ فَتَوَضَّأَ  فَصَبُّوا عَلَيَّ مِنْ  وَضُوئِهِ فَعَقَلْتُ فَقُلْتُ يَا رَسُولَ اللَّهِ إِنَّمَا يَرِثُنِي كَلَالَةٌ فَنَزَلَتْ آيَةُ الْمِيرَاثِ. (مسلم:رقم 1616).

I was sick and in a state of unconsciousness when the Prophet of Allah arrived at my place. He performed ablution and the people sprinkled some water over me from which the Prophet was performing his ablution. When I came to my senses, I said: O Prophet of Allah all my heirs are kalalah. At this, this verse⁵⁰ of inheritance was revealed. (Muslim: No. 1616)

    From the words: ‘O Prophet of Allah all my heirs are  kalalah. At this, this verse of inheritance was revealed’ of the above Hadith, it is evident that among the ‘كلاله’ (kalalah) relatives the question particularly concerned his brothers and sisters and the last verses of Surah Nisa were revealed as a result of this inquiry.
    A special style of the Qur’anic verses is that in them certain questions are stated in a very concise and compact form. The actual nature of the question and its background is revealed by the answer which the verses subsequently give. By not taking into consideration this style, our commentators have come across many difficulties in understanding ‘قُلْ اللَّهُ يُفْتِيكُمْ فِي الْكَلَالَةِ’ (God enjoins you about your kalalah relatives). Here also, if only the answer is analyzed, the meanings the verse convey are very evident. The verse is of the same style and pattern as ‘يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ’ (God enjoins you about your children). In the latter case, the directive is about the children as the heirs of a deceased while in the former case the pronouncement is about ‘كلاله’ (kalalah) relatives as the heirs of a deceased. The article ‘ال’ (alif lam) defines the word ‘كلاله’ (kalalah) in this verse, which testifies to the fact that the question concerns some specific relations among the ‘كلاله’ (kalalah) relatives and the answer shows that these specific relations are the deceased’s brothers and sisters. Verse 12 of Surah Nisa has already empowered a person to bequeath a part of his legacy in favour of ‘كلاله’ (kalalah) relatives like uncles, aunts, brothers and sisters. Here, a particular case is mentioned after the general directive. Considering this, the correct meaning of the verse is: ‘Say, Allah gives you a pronouncement about brothers and sisters among the kalalah relatives’. An example of this Qur’anic style and construction can be seen in verse 189 of Surah Baqarah⁵¹.
    It should be clear that the words ‘إِنْ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ’ (if a man dies childless...) do not state the meaning of ‘كلاله’ (kalalah); they merely impose a condition which must be fulfilled if the brothers and sisters are to receive a share in a legacy. Just as in the verse ‘فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ’ (and if he does not have children, and his parents are his heirs), a condition is imposed that if the deceased is childless and only his parents are his heirs, then they shall receive such and such shares. Similarly, in the given verse, a condition is stated that if a person dies childless, and he has brothers and sisters, then their share is such and such. Also evident from the condition in the verse is that brothers and sisters are heirs of a deceased, only in case he dies childless. If he leaves children, then they do not have any share in his wealth except if a deceased makes a bequest in their favour according to the general directive mentioned in verse 12 of Surah Nisa.
    The shares of brothers and sisters stated here are the same as those of the children stated earlier. Also, the style of the words ‘كَانُوا إِخْوَةً رِجَالًا وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ وَإِنْ’ (and if there are many brothers and sisters, then the share of each male shall be equal to that of two females’) bears witness to the fact that these shares also shall be given after the parents and the spouses are handed over their shares. The relevant arguments are presented in the section which deals with the shares of the children. Hence, if the deceased only has sisters, then two-thirds or one half (whatever the case may be) of the share meant for the brothers and sisters shall be given to the sister or sisters.
We have indicated earlier that it is evident from verse 12 of Surah Nisa that in the absence of children, the brothers and sisters of a deceased take their place. This particular verse of Surah Nisa conclusively proves the premise. It was possible to misinterpret it from the style of verses 11-12, but here all doubts have been removed as to what the words imply. The Qur’an, therefore, says:

يُبَيِّنُ اللَّهُ لَكُمْ أَنْ تَضِلُّوا وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ (176:4).

God explains to you that you err not and God has knowledge of all things. (4:176)