The Doctrine of Allocation of Excess Estate (Ar-Radd) in the Law of Inheritance

The Doctrine of Allocation of Excess Estate (Ar-Radd) in the Law of

Inheritance: Juristic and Arithmetic Analysis

Dr. Fahd ibn Abdur-Rahman Al-Yahyaa1

1 Dr. Fahd Al-Yahyaa is a member of the teaching staff in the College of

Sharee'ah and Fundamentals of Religion, Qaseem University.

The Doctrine of Ar-Radd in the Law of Inheritance

110 Al-Adl (33)

Foreword

All praise is due to Allah, and may Allah's peace and blessings be upon Allah's Messenger.

The law of inheritance is an important issue in Islam which requires

a great deal of understanding and training. It is for this particular reason that I have decided to write on an important aspect of this issue, namely, the allocation of excess shares to heirs (ar-Radd).

The present study consists of an introduction and five sections, as follows: Introduction Section One: The Jurists' Position on the Issue of Ar-Radd Section Two: Conditions of Ar-Radd for those who advocate it Section Three: Those heirs to be given the Residue (excess shares). Section Four: The residue concerning the Spouses Section Five: How to work out Problems Relating to Ar-Radd

First Case: If none of the two Spouses is Present

Second Case: If either Spouse is Present among those Entitled to Receive the Excess shares of Estate (Ar-Radd)

Dr. Fahd ibn Abdur-Rahman Al-Yahyaa

111 Al-Adl (33)

Introduction Definitions

Linguistically, the Arabic word 'radd' means 'return, turn back, repel'. In Mukhtaar As-Sihaah, we read: "Radda means turn back, as in Allah's

statement, 'But when Allah will a people's punishment, there can be no marad (turning back).' (Surat Ar-Ra'd, 13:11); radda also means turn something down; radda with the preposition 'to' means return, as in 'return home."2

Technically, it means allocating the excess shares left over the estate to those heirs who are entitled to it3 in proportion to their original shares.4 The reason behind the occurrence of Ar-radd is when the amount of estate shares exceeds the shares originally allocated to entitled heirs. This means, in other words, when the total amount of estate exceeds that of the shares.5

To clarify further, if the total amount of shares to be distributed exceeds the total estate, then we have a case known as 'awl; if the amount of shares to be distributed is less than the total estate, then we have the case known as ar-radd (henceforth radd); if the amount of shares to be distributed is equal to the total estate, we have neither a case of 'awl, in which case the shares of certain heirs are reduced, nor a case of radd, in which case it is to be decided as to whether the "remainder" (radd) goes to the public treasury (bayt al-maal) or back to the sharers.6

2 1/267. 3 Those entitled to it are called in Arabic ashaab al-furoodh. (Translator's Note) 4 See Al-Matla', 1/304; Al-Lubaab Fee Sharh Al-Kitaab, 4/33; Al-'Adhb Al-Faa'idh,

2/3; Nihaayat Al-Hidaayah, 2/257; At-Tuhfah Al-Khairiyyah, p. 218; and Al-Fusool, p. 294.

5 Nihaayat Al-Hidaayah, 2/257, and At-Thfah Al-Khairiyyah, p. 218. 6 To further clarify this point, after allocation of the estate amongst all the heirs

with fixed shares there is a residue left over but there are no residuaries. This residue called ar-radd is allocated to those heirs who are entitled to it, in

proportion to their original shares. Conversely a situation may arise when the total sum of the assigned shares of the heirs with fixed shares is greater than


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Incidence of Radd in People's Lives

It will be mentioned during the course of discussing the conditions

of radd that one such condition to be met is that there should not be an agnatic heir7 ('aasib) of the deceased. Therefore, the incidence of radd

under normal conditions is rare indeed because it is very rare not to find an agnatic heir of the deceased even if he is a distant relative. There are certain cases, however, which do not allow any agnatic heirs at all. The following are examples: 1. In times of war and as a result of displacement, in which case no

residuaries may be left or none of them, if they are still alive, may be recognized or known. According to the rule, the unknown is in effect non-existent.

2. Those who embrace Islam may not have a Muslim relative, except for ashaab al-furoodh8, such as their daughters, mothers or sisters.

3. The foundling and any other person whose lineage from his father's side is not known. Scholars are not agreed, however, whether he may be considered a 'aasib or not.9 An opinion states that he may not have any heirs except those who are entitled to fixed shares.

unity. In this situation all the shares are abated proportionately by the doctrine of al-awl which involves decreasing the fractional shares to a common denominator, and increasing the denominator in order to make it equal to the sum of the numerators. (translator's Note)

7 Agnatic heirs, or those who trace their relationship to the deceased only through males, who are known as ‘asaba or "residuaries", take no fixed share but receive the residue after the fixed shares are claimed by the sharers. (Translator's Note)

8 Ashaab al-furoodh are also called Qur'anic heirs or sharers. These heirs, when

entitled to inherit, are given their fixed shares and the remaining estate is inherited by the residuaries ('asaba). (Translator's Note)

9 See Musannaf Ibn Abee Shaibah, 6/272;Mustadrak Al-Haakim, 4/379; Al-Mughnee, 9/116; Tahdheeb As-Sunan, 8/82; Fath Al-Baaree, 12/31; Zaad Al-Ma'aad, 5/399; Al-Insaaf, 7/309; Al-Mabsoot, 29/198; Al-Bahr Ar-Raa'iq, 8/572; Al-Istidhkaar, 15/511; and Rawdhat At-Taalibeen, 5/44.


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Section One The Jurists' Position on the Issue of Radd

Muslim scholars have expressed two different opinions regarding radd.

The first opinion does not accept this doctrine and its proponents state that whatever is left over after heirs who have prescribed shares (ashaab al-furoodh) have taken their fixed shares should go to the public treasury (bayt al-maal). This was the view of Zayd ibn Thaabit (may Allah be pleased with him)10. It is also the view adopted by the Malikites.11

The Shafi'ites12 also expressed the same opinion, but the latter scholars amongst them state that this view is conditional upon the state of affairs of the public treasury. If the public treasury, they argue, distributes money to those entitled to it, then the 'remainder of the estate' (radd) can go to the public treasury; if, however, the public

treasury does not pay out the money collected to those who deserve it, or there is no imaam (Muslim ruler), or if the imaam does not meet the conditions for being appointed for such an office—as imaam An-Nawawee stated—then this residue (radd) must not be given to the public treasury, but rather to those original sharers who are entitled to it. Ibn Suraaqah, who was a leading figure in the Shaafi'ee school of law, said, "The general fatwa to this effect is approved in all regions [of the Muslim countries]." That is, the fatwa advocating allocating the residue to the heirs (radd), due to the rarity of honesty as to the administration of the public treasury.13

This latter view is adopted by the Hanbalites.14

10 Musannaf Abdur-Razzaaq, 10/287; Al-Umm, 4/76; and Sunan Al-Baihaqee, nos.

12186 and 12187. 11 Al-Ishraaf, 2/1030 and Bidaayat Al-Mujtahid, 2/352. 12 Al-Umm, 4/76 and Rawdhat At-Taalibeen, 5/8. 13 See Rawdhat At-Taalibeen, 5/8. 14 Al-Insaaf, 18/118.


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The second opinion does not accept the doctrine of radd (allocation

of residue estate to original sharers). This was the opinion of Omar [ibn Al-Khattaab], Ali [ibn Abee Taalib], [Abdullaah ] ibn Mas'ood and [Abdullaah] ibn Abaas15. It was also the opinion of the Hanafites16 and the Hanbalites17. It has also been previously stated that the latter scholars of the Shaafi'ee school of law adopted this view. Evidence furnished by those who are against returning the Residue to the Original Heirs 1. The generality of the verses on inheritance, for they all state that

Almighty Allah has specified the fixed shares to those entitled to them, and thus no one should increase the specified share or decrease it [for that matter].18 This view can be refuted in two ways: a. The verses regarding inheritance do not prohibit an increase;

they only mention the legal heirs; and if there is evidence supporting this increase on top of the fixed share, this does not contradict the verse. Almighty Allah says, for instance, "…and for one's parents, to each one of them is a sixth of his estate if he left children."19 This does not prohibit the father from taking the residue if the child of the deceased left is a daughter and there is a residue.

Another example can be furnished by Allah's statement, "And for

you is half of what your wives leave."20 This verse mentions that the husband takes half the estate and can take the rest if he happens to be a

15 See Ibn Qudaamah, Al-Mughnee, 9/48; Sunan Al-Baihaqee, no. 12187 and Al-

Mabsoot, 7/570. Abdur-Razaaq reported on the authority of Ash-Sha'bee who said, "Ali [ibn Abee Taalib] would return the residue to all sharers in proportion to their original shares, except for the husband and the wife. Abdullah would not return the residue to a mother's sister with the mother, the son's daughter with a full daughter, not to a father's sister with a father's and mother's sister, nor to a grandmother, nor to a wife, nor to a husband."

16 Al-Mabsoot, 7/570 and Al-Ikhtiyyaar fee Ta;leel Al-Mukhtaar, 10/286. 17 Al-Mughnee, 9/48 and Al-'Adhb Al-Faa'idh, 2/3. 18 Al-Umm, 4/76. 19 Surat An-Nisaa', 4:11. 20 Surat An-Nisaa', 4:12.


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cousin; in addition, the brother from the mothers' side takes a sixth; this does not mean, however, that he cannot take the rest if he is an agnatic heir ('aasib), like being a cousin, for instance.

If it is claimed that their view is supported by another kind of evidence apart from theses verse, we can confidently say that the refutation of their evidence can also be supported by different evidence.

b. Furthermore, if the verses relating to inheritance prohibit an increase they also prohibit a decrease. They do not adopt this view, though, because they accept the doctrine of 'awl21. In fact, the majority of scholars advocate 'awl, and their agreement on it reaches consensus.

2. Allah's statement, "If a man dies, leaving no child but [only] a sister, she will have half of what he left. And he inherits from her if she [dies and] has no child."22 This verse, they claim, clearly indicates that the lone sister gets half the estate and that the lone brother gets the entire estate. Therefore, giving her the entire estate as a lone heir contradicts the Qur'an.23 The attempt to use this textual evidence can be refuted as follows: The implication in this verse is that the fact the sister is mentioned alone does not mean that this is absolute. The evidence for this is that she can still get the half along with a 'aasib; this fixed portion will not be affected even if she is with one of those entitled to fixed shares, like being with the mother or the wife. If this is not what is meant, the verse does not then indicate that the sister is forbidden from taking the entire estate if she is alone. Furthermore, even if this is not what is meant, then using this verse as evidence can still be refuted by the same kind of refutation employed in the previous verse.24

21 This means, as stated above, reduction of shares. In fact, 'awl involves

decreasing the fractional shares to a common denominator, and increasing the denominator in order to make it equal to the sum of the numerators. (Translator's Note)

22 Surat An-Nisaa', 4:176. 23 See Al-Umm, 4/77. 24 That is, in the two ways mentioned above, namely that (1) the verse does not

prohibit an increase in inheritance for different evidence or a new reason, and


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3. Ash-Sha'bee said, "Zayd ibn Thaabit never returned the residue to any of the relatives.25 Ibn Khaarijah ibn Zayd narrated that Zayd would give the sharers their fixed portions and would take the residue to the public treasury."26 This can be refuted by the fact that most, if not all the Prophet's

companions differed in opinion with Zayd (may Allah be pleased with him), as Ibn 'Abd Al-Barr said27; for they all advocated the view of returning the residue (radd) to those sharers who are entitled to it, in proportion to their original sharers. Evidence furnished by those who advocate returning the Residue to the Original Heirs 1. Allah's statement, "But those of [blood] relationship are more

entitled to [inheritance] in the Decree ordained by Allah."28 This verse is quoted in support of radd in two ways: a. Part of the overall meaning of the verse is that kindred by

blood are more entitled to inherit the estate from one another due to the blood relationship. By estate is meant the entire estate. Therefore, they are more entitled to the fixed shares allocated to them and to the residue (radd) left over after they have had their original fixed shares.29 However, the general meaning in the verse must be interpreted based exactly on what Almighty Allah has decreed and what His Messenger (peace and blessings be upon him) has legislated. It cannot be taken in its generality, though.30 It is well known that it is better to state that this particular verse establishes something new than confirm something previously established. The verse, therefore, is general and

that (2) if the verse does prohibit an increase in inheritance it must also prohibit a decrease; but they do not adopt the latter view.

25 Musannaf Abdur-Razzaaq, 10/287. 26 Ibid. 27 See Al-Istidhkaar, 15/486. 28 Surat Al-Anfaal, 8:75. 29 Al-Mabsoot, 7/570. 30 Al-Umm, 4/80.


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its meaning has been limited and specified by the verses of inheritance. However, its generality is applicable only in matters left over after the original legal shares have been allocated to their rightful heirs.

b. Priority is approved in matters relating to inheritance, as the Prophet (peace and blessings be upon him) said, "Give the shares of the inheritance [prescribed by the Qur'an] to those who are entitled to receive them. Then whatever remains should be given to the closest male relative of the deceased.31 If priority is approved, then the verse proves that relatives are more entitled to the estate than others. Therefore, the residue must be given to them and not to the rest of Muslims through the public treasury.

2. The generality of the hadeeth narrated by Abu Hurairah (may Allah be pleased with him) that the Prophet (peace and blessings of Allah be him) said, "If somebody dies [among the Muslims] and leaves some property, the property will go to his heirs; and if he leaves a debt or dependants, we will take care of them."32 The ruling in the hadeeth is general in all types of estate and includes the residue left over after the distribution of the prescribed shares, which must be given to the legal heirs and not to the public treasury.

3. Sa'd ibn Abee Waqqaas (may Allah be pleased with him) narrated that he said to the Prophet (peace and blessings be upon him), "O Messenger of Allah, I have no heirs except my only daughter."33 We understand from this hadeeth that the daughter gets only half of the estate and the rest remains; however, Sa'd said to the Prophet (peace and blessings be upon him), "I have no heirs except my only daughter," and the Prophet (peace and blessings be upon him) approved that restricting the inheritance to the daughter is not to be denied. If the second half were to be given

31 Al-Bukhaaree, no. 6235; and Muslim, no. 3028. 32 Saheeh Al-Bukhaaree, no. 2297and Saheeh Muslim, no. 1619. 33 Saheeh Al-Bukhaaree, no. 4147 and Saheeh Muslim, no. 1628.


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to the public treasury, the Prophet (peace and blessings of Allah be upon him) would have told him so. Rather, he gave his approval to give it to his daughter and not to be sent to the public treasury.34 Those who oppose this view claim that the meaning of the hadeeth is: "I have no male children, or legal heirs or women to inherit from me." But this is not true as he had many agnatic heirs ('asabah) and belonged to Banu Zahrah tribe whose members were rather numerous. It has also been claimed to mean: "I have no legal heirs to inherit from me." They also claim that he thought that she would not inherit the entire estate.35

4. The majority of the Prophet's companions (may Allah be pleased with them) are of the opinion that the residue is to be returned to the legal heirs. Ibn Abd Al-Barr even mentioned that Zaid ibn Thaabit was the only person amongst the Prophet's companions who did not hold this view, and that they all held the view that radd is to go to the sharers entitled to it, but they differed

concerning the manner of doing do.36 Ibraaheem An-Nakh'ee said, "The [legal heirs] who entitled to the estate deserve [the radd] more than those who are not entitled to the estate."37

5. Ashaab al-furoodh are actually closer to the deceased than anyone else, for Almighty Allah has prescribed their fixed shares for them to the exclusion of the rest of the relatives. Therefore, they are more entitled to the residue than the rest of Muslims who are not related to the deceased in any way when the residue of the estate goes to them through the public treasury. In fact, ashaab al-furoodh are related to Muslims through the bond of Islam and

excel them in that they are related to the deceased through blood relationship. That is why it has been said that the religious and

34 Al-Mabsoot, 7/570. 35 See Al-Fath, 6/18. 36 See Al-Istidhkaar, 15/486. 37 Musannaf Abdur-Razzaaq, 10/286.


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lineage relationship is more deserving that religious relationship alone.38

The Preponderant Opinion

The opinion that has more in its favour in this respect is the one stating that the residue (radd) is to go to those sharers who are entitled to it, in proportion to their original shares because those who advocate it have cogent arguments and conclusive evidence and that it represents the opinion of all pf the Prophet's companions. Allah knows best.39

Section Two Conditions of Returning the Residue to Ashaab Al-Furoodh for Those Who Support This Opinion

Those who support the opinion that the residue of estate (radd) must go to those sharers who are entitled to it, in proportion to their original shares set two conditions40 for implementing it, namely: 1. The amount of shares to be given to the sharers must not

completely exhaust the entire estate, in which case no residue is left over to be returned to the sharers entitled to it, in proportion to their shares. In fact, there would be no residue left over if the amount to be distributed is the same as the total estate or if the amount of shares to be distributed exceeds the total estate, the latter commonly known as 'awl.

2. There should be no agnatic heirs ('asabah), because if there happens to be an agnatic heir he will take the residue of the estate, whether he is a case of residuary in his own right (asaba-bin-nafs) through lineage or walaa' (patronage), or in another's

38 Ibn Abd Al-Barr's Al-Istidhkaar, 15/487 and Bidaayat Al-Mujtahid, 2/352. 39 Deciding the opinion that is superior in weight is achieved by considering the

generality of proofs; otherwise, some of these proofs provide more cogent evidence than using one hadeeth as evidence, like the one narrated on the

authority of Sa'd ibn Waqqaas. 40 See Al-Mabsoot, 7/570 and Al-Uddah Sharh Al-'Umdah, 1/321.


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right (asaba-bil-ghair), such as a sister with a daughter or a son's

daughter.41

Section Three Those Heirs to be Given the Residue

The heirs entitled to the residue (Ashaab ar-radd) are those heirs who never inherit by way of being part of the 'asabah, except for the spouses. These are seven categories of heirs, namely, the mother, the grandmothers, the daughters, the son's daughters, full sisters, paternal sisters and the mother's sons (maternal brothers and maternal sisters).

In fact, this is the opinion of the majority of scholars who hold the view that the residue is to be returned to the sharers entitled to it. Some past scholars list these heirs in order of preference.42

Section Four The Residue Concerning the Spouses

The majority of Muslim scholars are of the opinion that the two spouses (husband and wife) are not entitled at all to receive the residue left over the estate. The author of Al-Mughnee even goes as far as stating that scholars are unanimously agreed in this regard.43 The author of Kitaab Al-'Adhb Al-Faa'idh44 also mentions that two noted scholars, namely Sibt Al-Maardeenee and Ali ibn Al-Jammaal Al-Ansaaree, state that scholars are unanimously agreed in this respect. The author of Mughnee Al-Muhtaaj45 also quotes Ibn As-Sareej to this effect.

41 There is no need to discuss the case of asaba bil-ghair, (the residuary in

another's right), such as a daughter with a son, as the case of the residuary in his own right (asaba-bin-nafs) has more influence.

42 See Musannaf Ibn Abee Shaibah, 6/253; Sunan Al-Baihaqee, no. 12187; and Al-Mabsoot, 7/573.

43 See Al-Mughnee, 9/49. 44 Al-'Adhb Al-Faa'idh, 2/4. 45 Al-Mughnee, 3/7.


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The reason why the two spouses are not entitled to receive the residue is the verse which reads, "But those of [blood] relationship are more entitled to [inheritance] in the Decree ordained by Allah."46

Almighty Allah has prescribed fixed shares for the heirs entitled to prescribed shares (ashaab al-furoodh); therefore, no one should be given more than his or her prescribed fixed share. Nor should the fixed amount be reduced except with evidence. There is evidence that shares are abated proportionately by the doctrine of 'awl which involves decreasing the fractional shares to a common denominator, and increasing the denominator in order to make it equal to the sum of the numerators. There is also evidence that relatives are to be given the residue left over when there is no 'aasib, as evidenced by Allah's

statement, "But those of [blood] relationship are more entitled to

[inheritance] in the Decree ordained by Allah."47 Therefore, there is no evidence to the effect that the two spouses are to be given more than what Almighty Allah has prescribed for them.48

Even though there is unanimous agreement to this effect, very few scholars maintain that the two spouses are entitled to the residue left over (radd). It has been narrated that Othmaan ibn Affaan (may Allah be pleased with him) held this view. In his book Al-Istidhkaar49, however, Ibn Abd Al-Barr writes, "The report that Othmaan held this view is not authentic. It could be that the husband [mentioned in the report] was 'aasib."

[Strangely enough,] Al-Mawsoo'ah Al-Kuwaitiyah (Kuwaiti Encyclopaedia) attributes this view to Jaabir ibn Abdullaah (may Allah be pleased with him).50

Some other people attribute this view to Sheikh Ibn Taymiyyah (may Allah have mercy on him) just because he dealt with a case regarding a

46 Surat Al-Anfaal, 8:75. 47 Surat Al-Anfaal, 8:75. 48 Al-Mughnee, 9/49; Al-Lubaab Fee Sharh Al-Kitaab, 4/33; and Tasheel Al-

Faraa'idh, p. 57 49 . Al-Istidhkaar, 15/486; see also At-Tahdheeb Fee Al-Faraa'idh, p. 175. 50 Al-Mawsoo'ah, 3/49-50. I believe that there is a mistake her; for among the

sources and refernces this encyclopedia uses was Al-Mabsoot, 29/192. In fact,

this source mentions Jaabir ibn Yazeed and not Jaabir ibn Abdullaah.


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husband, a mother and a daughter and was allegedly claimed to have made the total denominator as eleven51, which means that the husband is entitled to the residue left over. Sheikh Ibn Uthaimeen (may Allah have mercy on him), however, did examine this issue in detail and came to the conclusion that Sheikh Ibn taymiyyah cannot have said this.52 He proved his point in the following three ways: 1. It has been said that in the case involved was a husband, a mother

and a daughter and that the total denominator was eleven according to those who are of the opinion that the two spouses are entitled to the remainder, such as Abu Haneefah and Ahmad. In fact, these scholars do not support the view that the residue should be returned to spouses anyway.

2. The Hanbalites do not quote him as saying that the two spouses are entitled to the remainder even though they are so keen on quoting his reports and opinions.

3. Sheikh [Ibn taymiyyah] himself mentioned in a different context two other cases without stating that the husband and wife are entitled to the remainder after the sharers have been allocated their fixed shares. These cases are as follows:

First Case53: A husband and a daughter's son: the husband takes one half of the estate; as for the daughter's son, one opinion states that he takes the rest; this is the view of Abu Haneefah and his companions, as well as that of Ahmad and a group of Ash-Shaafi'ees's companions. The other opinion states that the remainder goes to the public treasury; this is the view of many of Ash-Shaafi'ees's companions as well as that of Ahmad according to some narrations.

Second Case54: A wife, a full sister and three daughters of a full brother: The wife takes one quarter, the sister takes one half;

51 Al-Fataawaa, 31/338; Al-Ikhtiyyaaraat, p. 197; The correct division is calculation

is that it should be divided by sixteen:the husband takes four, the mother takes three and the daughter takes nine. This will be explained later on, inshaa Allaah.

52 See Tasheel Al-Faraa'idh, p. 58. 53 Al-Fataawaa, 31/358. 54 Ibid. 31/359.


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there is nothing for the brother's daughters. As to the remaining quarter, if there are any residuaries ('asabah), they will take it; otherwise, it will be given to the sister, according to one opinion, or to the public treasury, according to another opinion.

It becomes evident, therefore, that Sheikh Ibn taymiyyah did not maintain that the remainder was to be given to the husband or wife; for if he really held such a view, he would have returned the remaining residue to the husband in the first case and to the wife in the second one.

In fact, from the division he provides here, we can infer that he does not believe in returning the residue left over to any of the two spouses. Had this been his opinion, he would have stated this in his discussion, for it was his custom to exhaust the different opinions on this issue.

As for the view attributed to him in the previous case, it could be ascribed to a mistake by the transcriber or to sheer conjecture; for no one can claim that he is free from conjecture, especially in matters relating to inheritance.

Sheikh Ibn Sa'dee55 maintains that the return of excess property (radd) should go to the two spouses; Sheikh Ibn Uthaimeen also held the same view on condition there is no heir through qaraabah (blood relation) or walaa' (heir through patronage).56

55 Al-Mukhtaaraat Al-Jaliyyah, p. 101. 56 Tasheel Al-Faraa'idh, p. 59. This statement of his is not very clear. If he means if

there is no close agnatic heir or a special legal relation (through patronage), then this is the condition to be satisfied for returning the residue left over to ashaab al-furoodh (Qur'anic heirs or sharers), and so there is no need to

mention it anyway. If , however, he means there is no sharer with him or an agnatic heir, why did he then use the words, "on condition there is no heir through qaraabah (blood relation) or walaa (heir through patronage)" despite the fact that there is no reason for it because this the condition of radd any

way. In addition, one of the two spouses is to be present. Therefore, it would have been better if the statement was reformulated thus, "unless one of the two spouses was the sole heir, in which case the residue left over could be returned to the." If he menas that blood relations are more general than the heirs to include dhawhul-arhaam (distant kindred), the statement should have

been expressed in a much clearer way; for by using the word 'heir' he excludes dhawul-arhaam; in addition, there is no need for the word 'walaa'' as


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Sheikh Ibn Sa'dee substantiated his view by saying that radd is the opposite of 'awl; therefore, as the reduction with regard to the shares of all the heirs including the two spouses, increase through radd also applies to all the heirs.57

This view can be refuted by saying that the reason for the radd is the blood relationship mentioned in the verse above, but there is no blood relationship between the two spouses. The reason for 'awl, on the other

hand, is competition and it includes both spouses as well as others. Furthermore, there is no need for this increase, as every heir will get

his share anyway. The division will be exact, and the remainder will go to the public treasury. This is the reason why some scholars do not advocate the concept of radd, as has been mentioned earlier. The doctrine of 'awl, however, has to be advocated; otherwise, some decrease will affect some heirs to the exclusion of others without evidence. It is for this reason that there has never been a difference of opinion concerning the doctrine of 'awl except to a very small degree by Abdullaah ibn Abbaas whose opinion was opposed by the majority of the learned scholars.

In his book Al-Mughnee58, Ibn Qudaamah writes, "Today, we do not know of anyone who adopts the opinion of Ibn Abbaas; besides, we do not know of any disagreement among jurists concerning the doctrine of 'awl in different Muslim countries. Praise be to Allah."

Ad-Durair also writes in Ash-Sarh Al-Kabeer59, "'Awl first appeared

during the reign of Omar [ibn Al-Khattab]; Omar supported it and everyone else did; Ibn Abbaas, however, objected to it after the demise of Omar. The entire Muslim community supported it, and no one adopted Ibn Abbaas's view..."

not being a 'aasib is a condition for receiving the residue left over, as has been

discussed earlier on. 57 Al-Mukhtaaraat Al-Jaliyyah, p. 101. 58 Al-Mughnee, 9/93. 59 Ash-Sarh Al-Kabeer, 1/303.


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Section Five How to Work Out Problems Relating to Radd60

All cases pertaining to the doctrine of radd may or may not have the two spouses. First Case: If none of the two spouses is present

If the case does not involve any of the two spouses, then it is very easy to work it out, as follows:

a. If any of those heirs entitled to radd is present, then he takes the entire estate by way of his fixed share and by way of his right to the residue.

Examples: A deceased person leaves one daughter: She takes the entire estate,

her fixed share as well as the residue. If the deceased leaves only a mother, then the entire estate goes to her.

b. If those present who are entitled to the radd all belong to the same class of heirs61, then the share they get will be according to their number, just like the 'asabah.

Example: A deceased person leaves behind three daughters:

3

3

daughters

1/3 for each

one

60 See Al-'Adhb Al-Faa'idh, 2/3; Nihaayat Al-Hidaayah, 2/257; At-Tuhfah Al-

Khairiyyah, p. 218; Al-Fusool, p. 294; and At-Tahdheeb, p. 157. 61 By class is meant the group of heirs who share one type of inheritance;

concerning the doctrine of radd, they can either be those entitled to receive

two thirds, or grandmothers or the mother's sons.


126 Al-Adl (33)

Another example: A deceased person leaves five paternal daughters:

5

Five paternal

daughters

1/5

c. If those present who are entitled to receive radd come from

different classes, the case is divided in the normal way, the shares are then added up and the asl (denominator) is changed to

the total number of shares62, and it can be modified if the need arises.

Example: A deceased person leaves a grandmother and a maternal brother:

The new denominator after the radd

Another example: A deceased person leaves a mother and two maternal brothers:

62 In this way, we should be able to return the ashaah al-furoodh in proportion to

their original shares. It is worth noting the following: 1. The asl (denominator) in such cases as these is always 6, then it is changed

into the number of shares according to each individual case, as in the examples.

2. The classes of those entitled to receive the radd do not exceed three classes,

as has been proven by inductive reasoning. Otherwise, the case becomes even or a case of 'awl.

(2)/6

1/6

grandmother 1

1/6 maternal brother

1


127 Al-Adl (33)

The new denominator after the radd

Another example: A deceased person leaves one daughter and a son's two daughters:

X 2 4/6

8

1/2 daughter 3 6

1/6 Son's two daughters

1 2/1

Explanation We divide the shares as usual; we add up the shares and get the total

of 4 while the asl (denominator) is 6. Then we change the asl to the number of shares (4). We then make necessary changes, if any, as usual. As the number of the son's two daughters (2) and that of the shares (1) cannot be divided by a certain number, we keep the number of individuals (2), then we multiply this number by the 'asl, which is the new asl after the remainder (4), and then we multiply it by the number of shares. In this way we get, 2X4=8; 2X3=6; 2X1=2 each.

The legal expert, therefore, must always divide the estate in matters of inheritance as usual and then add up the number of shares. If their total number is equal to its asl, then it is even and the 'aasib, if any, will

not then be considered as there will be no need for him. If the total number of shares exceeds the total estate ('awl), in which case the total number of shares becomes the new asl denominator and the 'aasib, if

(3)/6

1/6

mother

1

1/3

two maternal brothers

2


128 Al-Adl (33)

any, will also be not considered in the matter; however, if the total number of shares is less than the estate, then we have a case of radd; if there is no 'aasib to take the remainder, he makes the total number of shares the new asl. Regarding whether one of the two spouses is present, this issue will be discussed in the second case. Examples relating to the first case: 1. A deceased person leaves a son's eight daughters 2. A deceased person leaves one grandmother and a paternal sister 3. A deceased person leaves ten daughters and three grandmothers 4. A deceased person leaves six full sisters, a paternal sister and a

maternal brother Second Case: If one of the two spouses is present among those entitled to receive the remainder (radd)

Those entitled to receive the remainder fall into one of the following categories:

1. They may be one single person 2. They may belong to one particular class 3. They may belong to more than one class

(1) and (2) If they are one person or belong to the same class:

In this case, we use the denominator in the fixed share of one of the two spouses who is among those entitled to receive the remainder (radd). One of the two spouses receives his/her fixed share and the rest goes to those entitled to receive the remainder (radd); then necessary changes, if any, should be made. Examples:

8

2

1/8 wife 1 1/2 husband 1

son's daughter

7 maternal brother

1


129 Al-Adl (33)

It is clear, therefore, that we have dealt in all these cases as though the person among those entitled to receive the remainder (radd) is a residuary ('aasib). So we give him the remainder after the prescribed share of one of the two spouses has been allocated to him/her, then we make any necessary changes, if possible, and there is no need to give him his prescribed share first. Note

If any of those entitled to receive the remainder is present with either spouse, as is the case when there is a group belonging to the same class of heirs or when there is a group belonging to different classes, as will be discussed later, we need to ascertain whether the remainder (radd) is involved in the matter or not. This can be done by following the same procedure shown above. If the remainder is involved in the matter, we solve the problem again by making the denominator of the any of the two spouses' fixed share, who is present, the asl, and the rest should go

to the those entitled to receive the remainder. The matter may involve the principle of 'awl63, in which case it is not

permissible to consider the denominator of any of the two spouses and the remainder to be given to those entitled to receive radd. This only applies when there is an inheritance problem in which there is a

63 'awl is applied where the shares exceed the heritage, such as where the

deceased leaves behind a wife, parents and two daughters (the shares being, the wife's one-eighth, the parents' one-third, the two daughters' two-thirds; here the estate falls short of the sum of one-eighth, one third and two-thirds 127/24]). Similarly, if a woman dies and leaves behind her husband and two agnate sisters, the share of the husband is one-half, and that of the sisters two-thirds; here the estate falls short of the sum of half and two-thirds (7/6). 'Awl occurs only if the husband or the wife is present. (Translator's Note)

X 3

2 6

1/2

husband 1 3

3 grandmothers

1 1/3


130 Al-Adl (33)

husband and non-maternal sisters. In fact, this case involves the principle of 'awl and not radd.64

Example of an inheritance problem involving the principle of radd:

The principle of radd is to be applied in this case, but solving it in this

way is wrong because the matter as it stands shows that the remainder goes to the husband, which is not permissible, as has been previously explained. To do the calculation again, we must consider the denominator of the husband's fixed share as the asl, as follows:

X 2 2 4

1/2

husband

1

2

2

1/3

Two maternal sisters

1

2 each

Example of an inheritance problem involving the principle of 'awl:

64 In fact, there are many examples concerning the case where, along with the

husband, there is a group belonging to different classes and where the remainder is not involved in the matter.

5/6

1/2

husband

3

1/3

two maternal

sisters

2


131 Al-Adl (33)

7/6

1/2

husband

3

2/3

Two full sisters

4

This problem involves ‘awl rather than radd. If we say that the

husband takes his fixed share and the remainder goes to ahl ar-radd who are with him in the problem, it will be wrong.

(3) If they belong to more than one class:

In this case, the following steps are to be followed: 1. The case relating to the marriage problem is to be taken from

the denominator of one of the spouses' share; the fixed share is taken from this and the rest goes to those entitled to receive the remainder. This is similar to what we did concerning the case previously discussed. In fact, we treated those entitled to receive the remainder as though they were one person. The problem then can be corrected, if the need arises. Those entitled to receive the remainder should not be included in correcting the marriage problem.65

2. Another case concerning those entitled to receive the remainder only, as is the case when the deceased leaves none but them. We apply the same procedure followed previously concerning the case where those entitled to receive the remainder belong to more than one class of heirs without any of the two spouses being present; that is, we add up the

65 That is, we correct the fraction concerning to wives only if there are more than

one wife; as for those with them who are those entitled to receive the remainder, we simply treat them as though they were one person, only in this step, though.


132 Al-Adl (33)

number of shares after distributing them and make the total of the shares the asl. As has previously been mentioned, the matter should be corrected if the need arises.66

3. we compare between the remainder issue (i.e. the asl reached after the principle of radd has been applied after correction, should the need arise as well as in the marriage problem) and the remainder in the marriage problem after the fixed share of one of the two spouses (which is the total of shares of those entitled to receive the remainder). This comparison is very important in this particular case and is very similar to the comparison between the total number of shares and that of individuals mentioned earlier. If the matter—in this case that of those entitled to receive the remainder (radd)—does not reach a common denominator with that of the shares, we retain the entire number as it is; otherwise, we retain the product.

4. The number retained in this case is the per unit share by which we multiply the marriage problem and the product is called al-jaami'ah (new asl).

5. The marriage problem shares are multiplied by the same number its original asl (per unit share); the shares of one of one of the souses is multiplied and the product is tabulated in the jaami'ah column. The remainder (i.e. the shares of those

entitled to receive the remainder) is then multiplied by the per unit share, and the product is divided by the remainder issue, and the product is the per unit share.

6. The shares of the remainder problem are multiplied by their respective per unit share and the product will be taken by its respective heir as specified in the total.

66 Whoever desires to start with the division can delay correction until this stage

and the one before it until he gets to the new asl ( called jaami'ah). Then he can

correct it should the need arise. The result will certainly be the same. I prefer to delay correction until jaami'ah is reached for two reasons:

1. To deal with the small numbers before correction, which is much easier and more probably to avoid making mistakes.

2. The problem can be corrected after jaami'ah, in which case no correction will be required.


133 Al-Adl (33)

Example: Fraction of share Fixed Denominator in the spouses Problem Fraction of share in the radd Problem

Total

16 3 4 Shares of Heirs Entitled

to radd 4 x 4

6/4

4 1 ¼ Husband

9 3 1/2 3 Daughter

3 1 1/6 Son's Daughter

Spouses Problem Radd Problem

Explanation:

1. We calculate the marriage problem by using the denominator of the husband's fixed portion (4) and we give his fixed share (1), and the rest (3) goes to those entitled to receive the remainder; that is the daughter and the son's daughter.

2. We calculate the problem concerning those entitled to receive the remainder and we divide it between then we add up the shares only to find that their number is less than the asl; so we change the asl (6)

to the total number of shares (4)

3. We compare between the problem concerning those entitled to receive the remainder (4) and the remainder form the marital problem (3) and we find that there is a case whereby they cannot be divided by a certain number; we retain the entire number as it is.

4. We multiply the number retained as to radd case (4) by the marriage case (4) and the product is 16, which is the jaami'ah.


134 Al-Adl (33)

5. We multiply the shares of the marriage case by the same number by which it was multiplied; whatever share the husband receives is tabulated in jaami'ah and then we multiply the remainder by 4 to get 12, which we distribute among those entitled to receive the remainder (radd); the total (3) is the per unit share.

6. We multiply the shares of the remainder case (the daughter's share is 3 whereas that of the son's daughter is 1) by the per unit share (3) and the product is tabulated in the total.

Another Example:

Total 7 5

80 10 2 X 6/5

5 X 16

2 X 8

10/5 2 1 Two Wives

56/28 8 4 2/3 14 7 Two Daughters

14/7 2 1 1/6 Two Grandmothers

In solving this inheritance problem, we can follow the same steps

adopted in the previous case. The marriage problem, however, needed correction and so we corrected it without including those entitled to receive the remainder (radd) in the correction process. Then we corrected the remainder (radd) problem without including the wives in it.

In this problem, we find some kind of congruity between the total number of shares and that of their case. They can both be divided by number 2. In fact, we find that amongst their shares is the number 14 and there is number 10 in their case, se we retain number 5 as the congruity allows, and then we follow the same steps adopted in the previous case.


135 Al-Adl (33)

The product of the case is 5 and that of the remainder is 7; so we multiply 5 by the asl of the marriage problem and we multiply 7 in the shares of those entitled to receive the remainder by their own case.

The problem can be done again by delaying correction, which is a better option.

Someone may wonder if the doctrines of 'awl and radd may be applied in this case.

Well, the expert in the field of the law of inheritance can easily decide if the principles of 'awl and radd may be applied in the problem or not. If, one, however, is not sure, one may then divide the shares amongst those entitled to them; if the principle of radd seems to be applicable, then the same steps mentioned above may be followed. Examples and Exercises relating the second case

1. A deceased wife leaves behind a husband, a paternal sister

2. A deceased husband leaves a wife and six maternal brothers

3. A Muslim fighter was martyred, leaving behind two wives and four daughters

4. A deceased wife leaves behind a husband, three daughters and two maternal brothers

5. A deceased husband leaves behind a wife a son's daughter

6. A deceased husband leaves behind three wives and two paternal sisters

7. A deceased wife leaves behind a husband and three grandmothers

8. A deceased husband leaves behind a wife, six full sisters and two paternal sisters

9. A deceased wife leaves behind a husband, two daughters and one maternal brother

10. A deceased husband leaves behind two wives, four maternal brothers and two grandmothers


136 Al-Adl (33)

11. A deceased wife leaves behind a husband, a son's daughter and three grandmothers

12. A deceased wife leaves behind a husband, one maternal brother and two grandmothers

13. A deceased husband leaves behind four wives, one daughter and a son's daughter

The Doctrine of Allocation of Excess Estate (Ar-Radd) in the Law of Inheritance

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Transcript of The Doctrine of Allocation of Excess Estate (Ar-Radd) in the Law of Inheritance