The Early History of Ismaili Jurisprudence

(fol. 1r) THE COURSE OF INHERITANCE LAW

(fol. 1v) Book on the course of inheritance law

Praised be the Lord with a praise surpassing any praise of the laudators. God bless the Prophet Muḥammad, the Faithful, and his Family, the Noble and the Pure, and grant Them salvation!

Prologues

Inheritance law transmitted on the authority of the Family of the Prophet, blessings be upon Them

There are three grounds on which a person has the right to claim an inheritance: kinship, legal title and that which is comparable to legal title and kinship.1

As far as kinship is concerned, it is established for three kinds of heirs: the first refers to those who are related to a deceased person, that is, a father and grandfather, however high. The second concerns those who are related to you [the deceased], that is, a child and child’s child, however low. The third regards those who stand in the same degree as you [the deceased], that is, brothers and sisters. As for legal title, it is established for two kinds: a title which may be broken [marriage] and a title which is permanent [patronage]. The former concerns the wife, the latter (fol. 2r) concerns the patron. As far as that which is comparable to kinship is concerned, the heir in this instance is someone who is acknowledged by the deceased, but whose relationship is not established.² As for the status comparable to a legal title, it refers to a person who signed a contract of clientage.³

There are three established categories for heirs: heirs by quota, who are never excluded from an inheritance, relatives on the maternal side and agnates.

Section 1. Mention of the fixed shares mentioned by God, be He exalted, in His Book

There are six fixed shares: two-thirds, one-half, one-third, one-fourth, one-sixth and one-eighth.

The share of two-thirds is apportioned to the father in the presence of the mother, when there are neither children nor sons’ descendants. It is also the daughters’ share if there are two or more. Likewise, it is the share of a son’s daughters. Lastly, it is the share of two full or consanguine sisters.

One-half is allotted to an only daughter. It is also the share of an only son’s daughter and an only full (fol. 2v) or consanguine sister. Moreover, one-half is the share apportioned to the husband when his wife leaves no descendants nor sons’ descendants who are male. A son’s descendants are comparable to one or more direct descendants, be they males or females.

One-third is the mother’s share when she does not leave children, or sons’ descendants, or two or more full or consanguine brothers. As a matter of fact, the latter causes the mother’s share to be curtailed from one-third to one-sixth, even if they are excluded from the inheritance in her presence. One-third is also the share of the uterine brothers and sisters if there are two or more, be they males or females, divided among them equally.

One-fourth is the share of the wife when her husband does not leave children or his son’s children, be they few or many. Likewise, one-fourth is apportioned to the husband if his wife leaves children, or her son’s children.

One-sixth is the share of the parents when children of their deceased child, or their grandchildren (fol. 3r), however low, are present. In this case, each parent shall be allotted one-sixth, while the remainder shall be distributed among their descendants. Moreover, one-sixth is the share of an only uterine brother or sister; one-sixth to one of them, whether male or female.

One-eighth is the share of the wife when her husband’s children, or his son’s children, are present. On the one hand, wives, be they four or fewer, are not entitled to receive more than a quarter of their husband’s estate, divided equally among them, when their husband does not leave descendants. On the other [hand], they cannot receive less than one-eighth, to be divided equally among them, when their husband leaves descendants. They can claim only these two fixed shares. This is what God, be He praised, determined in His Book in favour of wives. Moreover, it is what God, be He exalted, apportioned as fixed shares to the heirs we mentioned. However, each of these shares is differentiated in manifold ways.

As far as relatives on the maternal side are concerned, according to our Companions, God’s blessings be upon Them (fol. 3v), the principle to be followed is that, on the one hand, the closest of them to a deceased person debars the most remote; on the other, each heir is given the share established in the Book, while the remainder is added to [his share] because of his kinship, but not to spouses, who cannot claim an increase in their shares.

As for the agnates, they are the grandfather’s descendants (that is, paternal uncles and their descendants) and the father’s descendants (that is, a brother and his descendants), in other words, males only.

Section 2

The nearest among the agnates is the son; then the son’s son, however low; then the father; then the full brother; then the consanguine brother; then the full brother’s son; then the consanguine brother’s son; then the paternal uncle who is a full brother of the father; then the paternal uncle who is a consanguine brother of the father; then the son of a paternal uncle, who is a full brother of the father; then the son of a paternal uncle, who is a consanguine brother of the father; then according to this order; the patron follows; and, lastly, the patron who signed a contract of clientage.

Paternal half-siblings have no right to [an] inheritance when full brothers, who are the nearest [relatives of the deceased], are present. Thus, if full brothers and consanguine brothers are present, the estate shall be allotted to full brothers, while nothing shall be given to consanguine brothers. Likewise, if sisters of different categories, that is, full, consanguine and uterine sisters, are present, according to our Companions, God’s blessings be upon Them (fol. 4r), a uterine sister shall be apportioned one-sixth because she belongs to the [category of] maternal half-siblings, to whom God apportioned no more than one-sixth in His Book. The remainder shall be allotted to the full sister as [an] inheritance and proportional increase (radd), because she is the nearest to the deceased person, as she is his full sister. The consanguine sister does not receive anything in her presence.

Section 3

Four [types of] male [heirs] render four [types of] female [heirs] agnates: sons, sons’ sons, full brothers and consanguine brothers. They are the only males who make their sisters agnates, whereas among the remaining male agnates, only males inherit the estate.

If heirs by quota, relatives on the maternal side and agnates have become extinct, the estate shall be given to his patron; then to his patron’s agnates; then to those relatives on the [deceased’s] maternal side to whom no share is allotted in the Book of God; finally to the Public Treasury.

There are three impediments to receiving [an] inheritance: unbelief, slavery and premeditated murder. An unbeliever cannot inherit from a Muslim, but a Muslim can claim an inheritance from an unbeliever; this is because unbelief cannot debar Islam.

According to our Companions, God’s blessings be upon Them, if a man (fol. 4v) or a woman dies and does not leave an heir, but a manumitted slave, either male or female, the estate shall be allotted to the slave. Likewise, if a person dies and leaves an heir who is a slave, and the slave’s price falls within the amount of the estate, the [freedom of the] slave shall be bought using this estate, and the remainder shall be allotted to him. If, however, the estate is not sufficient for his redemption, he cannot claim his inheritance.

Section 4. Direct descendants and parents

Only parents, spouses and grandmothers can inherit in the presence of a descendant, as in the cases illustrated below.

If a man dies and leaves a son, the estate is allotted to him. If he leaves two sons, the estate shall be divided into halves. If he leaves three sons, the estate shall be divided into three portions. Then, this set order shall be followed; that is, if a man leaves a son and a daughter, the estate shall be divided into three parts, giving the male double the portion of the female: two shares to his son and one share to his daughter. If he leaves two sons and two daughters, the estate shall be divided into six parts, giving each male the portion of two females: two shares to each son and one share to each daughter. According to this rule (fol. 5r), if there are many sons and daughters, the inheritance shall be divided among them, giving each male double the portion of each female: two shares to each son and one share to each daughter.

If a man leaves his father and a son, his father is allotted one-sixth, while the remainder shall be apportioned to his son; the denominator is six. Likewise, if he leaves his father and two sons, the denominator is six: one-sixth to his father, and the remainder shall be divided into halves between his sons. In the same manner, if he leaves his father and three or more sons, his father shall be given one-sixth, while the remainder shall be divided equally among his sons. If he leaves his father and a daughter, the father can claim one-sixth and the daughter one-half of the estate; what remains shall be added proportionally to the [share of the] father and daughter. If he leaves his father and two daughters, his father has the right to one-sixth and the two daughters to two-thirds, divided equally between them; what remains shall be added proportionally to the [share of the] father and daughters. If he leaves his father and three daughters, his father has the right to one-sixth and his daughters to two-thirds, divided equally among them; the remainder shall be added proportionally to the [share of the] father and daughters (fol. 5v). Then, this pattern shall be followed, that is, if there are many daughters, they cannot receive more than two-thirds, unless through the proportional increase of their share. In fact, God, exalted be His mention, determined a two-third share in favour of the daughters as a whole, to be divided equally among them, and fixed a one-sixth share in favour of the father; so the remainder shall be proportionally increased to them.

If he [the deceased] leaves his father, a son and a daughter, the denominator is six: his father is allotted one-sixth, while the remainder shall be divided between his children, giving the male the share of two females. If a man leaves his father, two sons and two daughters, his father has the right to one-sixth, while the remainder shall be divided among his children, giving the male the share of two females. Then, this pattern shall be followed, that is, if the father and both male and female direct descendants, be they few or many, are present, the denominator is six: the father shall be given one-sixth, while the remainder shall be divided among the descendants, giving the male the share of two females. If a man leaves his parents and a son, the parents have a right to two-sixths, one-sixth to each; the remainder shall be allotted to his son. If he leaves his parents and two sons, his parents have a right to two-sixths, while the remainder shall be divided into halves between his sons. Then, this order shall be followed, that is, parents are allotted two-sixths, one-sixth to each (fol. 6r). [In this instance,] the father does not have pre-eminence over the mother.

If a man leaves his parents and a daughter, his parents have a right to two-sixths as a determined share, one-sixth to each, and his daughter to one-half as a determined share. The remainder shall be added proportionally to [the share of] his parents and daughter; [here,] the denominator is five: three shares to his daughter, one share to his father and one share to his mother. If he leaves his parents and two daughters, the denominator is six: his parents shall be allotted two-sixths as a determined share, one-sixth to each, and his daughters two-thirds as a determined share, divided equally between them; in this way, the inheritance becomes complete. If [the deceased leaves] parents and three daughters, his parents are given two-sixths, divided equally between them, while his daughters are apportioned two-thirds, divided equally among them. If a man leaves his parents, a son and two daughters, his parents have a right to two-sixths, divided equally between them, while the remainder shall be divided among his children, giving the male a portion equivalent to that of two females. Then, this order shall be followed; that is, when male and female children, be they few or many, inherit in the presence of parents, the latter are allotted (fol. 6v) two-sixths, while the remainder shall be apportioned among the children, giving each male a portion equivalent to that of two females, even if the direct descendants who inherit in the presence of the parents are many. If no child is present, one-third of the estate shall be apportioned to the mother, and the remainder to the father.

If a father inherits in the presence of a son’s son, the father has a right to one-sixth, and the son’s son to the remainder. The son’s descendants hold the same status as [the deceased’s] direct descendants, males for males and females for females; they debar parents in the same way as direct descendants. If a man leaves his parents and a son’s daughter, the latter has the right to a share of one-half and the parents to two-sixths, divided between them equally; the remainder shall be added proportionally to their shares. If a man leaves his parents, a son’s son and a son’s daughter, be they offspring of the same son or two different sons, his parents have a right to two-sixths, while the remainder shall be divided between his son’s son and his son’s daughter, giving the male double the share of the female. Then this pattern shall be followed, that is, what can be applied to parents who inherit in the presence of direct descendants is also applied when parents inherit in the presence of a son’s descendants.

According to our Companions, peace be upon Them, the [deceased’s] daughter’s descendants (fol. 7r) are treated like a daughter. In fact, if the daughter’s descendants inherit in the presence of a son’s descendants, the estate shall be divided between them, giving the male a portion equivalent to that of two females, as in the case when a son’s son inherits in the presence of a daughter’s daughter, where the property shall be divided between them giving the male a share double that of the female. However, this rule cannot be applied if one of the two is related to the deceased to a lesser degree; in fact, in this case, the nearest [relation] to the deceased person is more entitled to receive the estate.

Section 5. Direct descendants and spouses

If a man dies and leaves his wife and a son, his wife has a right to one-eighth, and his son to the remainder. If he leaves his wife, a son and a daughter, his wife has a right to one-eighth, while the remainder shall be divided between his children giving the male a portion equivalent to that of two females. If he leaves his wife and a daughter, his wife has a right to one-eighth, and his daughter to the remainder. If he leaves his wife and two daughters, his wife has a right to one-eighth, while the remainder shall be divided into halves between the daughters; the denominator of this fraction is eight: his wife is allotted one-eighth if descendants are present, and the remainder shall be apportioned to the children of the deceased person, according to what we mentioned.

If a woman dies (fol. 7v) and leaves her husband and a son, her husband has a right to one-quarter, and her son to the remainder. If she leaves her husband and a daughter, her husband is entitled to receive one-quarter and her daughter one-half as a determined share; the remainder shall be added only to [the share of] her daughter. If she leaves her husband and two daughters, her husband has a right to one-quarter and her daughters to two-thirds as their determined share; the remainder shall be added to [the share of] her daughters and divided equally between them. The same rule is applied to any direct descendant’s children who inherit in the presence of the husband or wife; as a matter of fact, they hold the same status as the direct descendant and debar the same heirs excluded from inheritance by the direct descendant.

If a woman dies and does not leave either a child or a son’s child, her husband shall receive half the estate and what[ever] remains. But if she leaves agnates, such as a brother, or a brother’s descendants, or a sister, or a sister’s descendants, or a paternal uncle, or a paternal uncle’s descendants, or one of her kindred belonging to agnates or relatives on the maternal side, the nearest to the deceased person among them shall receive the remainder. If, instead, she leaves no relatives, the remainder shall be given to the Public Treasury. Her husband shall not be given more than a one-half share in any case. Likewise, if a man dies and leaves his wife, but neither male or female (fol. 8r) child, nor male or female son’s descendant[s], be they one or more, his wife shall receive one-quarter; as far as the remainder is concerned, if that man leaves one of his relatives on the maternal side or agnates, the nearest to him among them shall receive the remainder. If, however, he leaves none of the above, the remainder shall not be added to [the share of] his wife, but be given to the Public Treasury. On the one hand, his wives, be they four or fewer, share one-quarter of the estate when their husband does not leave a child or child’s child; on the other, they share one-eighth of the estate when he [does] leave them [that is, a child or child’s child].

Section 6. Spouses and parents

If a man dies and leaves his wife and his father, his wife is entitled to one-quarter, and his father to the remainder. If he leaves his wife and his mother, his wife has the right to one-quarter and his mother to both one-third as a determined share and to the remainder as [an] increase because of her kinship. According to our Companions, God’s blessings be upon Them, if a man leaves his wife and his parents, his wife is entitled to one-quarter and his mother to one-third; what remains shall be given to his father. If a wife dies and leaves her husband and her father, her husband has a right to a share of one-half and her father to the remainder. If she leaves her husband and her mother, her husband is entitled to a share of one-half (fol. 8v) and her mother to both one-third as a determined share and the remainder because of her kinship. If a woman dies and leaves her husband and her parents, her husband is entitled to one-half, her mother to one-third as a determined share, and her father to the remainder. The denominator of this fraction is six: one-half to her husband, that is, three shares; one-third to her mother, that is, two shares; the remaining [one-sixth, that is,] one share, shall be allotted to her father.

Section 7. Direct descendants, son’s descendants, spouses and parents

If a man dies and leaves a son and a wife, his wife has a right to one-eighth and his son to the remainder. If he leaves a son’s son and a wife, his wife is entitled to one-eighth and his son’s son to the remainder. If he leaves his wife, a son and his father, his wife has a right to one-eighth, his father to one-sixth and his son to the remainder. If he leaves his wife, a daughter and his father, his wife is entitled to one-eighth, his father to one-sixth and his daughter to one-half as a determined share; the remainder shall be added proportionally to [the share of] his father and his daughter. If he leaves his wife, a son and his mother, his wife (fol. 9r) has a right to one-eighth, his mother to one-sixth and his son to the remainder. If he leaves his wife, a daughter and his parents, his wife has a right to one-eighth, his parents to two-sixths, divided equally between them, and his daughter to one-half; the remainder shall be added proportionally to [the share of] his parents and his daughter. If he leaves two daughters, his wife and his parents, his wife is entitled to one-eighth, his parents to two-sixths, divided equally between them, and his two daughters to the remainder, [which is] divided into halves. Likewise, if a woman dies and leaves her husband, her father and a son, her husband has a right to one-quarter, her father to one-sixth and her son to the remainder. If she leaves her husband, a daughter and her mother, her husband is entitled to a one-quarter share, her mother to one-sixth and her daughter to one-half as a determined share; the remainder shall be added proportionally to [the share of] her mother and her daughter. If she leaves her husband, her parents, a son and two daughters, her husband has a right to one-quarter, her parents to two-sixths and her children to the remainder, divided among them, giving the male double the share of a female. If she leaves her husband, her parents and two daughters (fol. 9v), her husband is entitled to one-quarter, her parents to two-sixths, and her daughters to the remainder, divided between them into halves. Then this pattern shall be followed. Shares cannot be reduced.4

Section 8. Brothers and sisters

Neither a paternal uncle, nor a paternal uncle’s son, nor a paternal aunt, nor a maternal uncle, nor a maternal aunt inherit in the presence of [the deceased’s] brothers and sisters. According to our Companions, God’s blessings be upon Them, a grandfather holds the same status as a brother in the inheritance; he receives the same share as a brother, as in the cases illustrated below.

If a man dies and leaves a full brother, the whole estate shall be apportioned to him. The same is true if he leaves a paternal consanguine brother. If he leaves a uterine brother, he has the right both to one-sixth and to the remainder. If, however, a deceased person leaves one of his relatives who can claim an inheritance in the presence of a uterine brother, the remainder shall be apportioned to him [that relative]; if not, the remainder shall be added to the [share of the] uterine brother because of his kinship. If there are a full brother and a consanguine brother, the estate shall be allotted to the full brother; in fact, a consanguine brother does not receive anything in his presence. If there are three brothers of different categories, that is, a full brother, a consanguine brother and a uterine brother, the latter has a right to one-sixth as a determined share (fol. 10r), because he belongs to the maternal half-siblings and he has the right to a fixed share in the Book of God; the remaining part of the estate shall be apportioned to the full brother, while the consanguine brother receives nothing.

If there is a full sister, she shall receive one-half as a determined share; if the deceased person also leaves an heir among those who can inherit in her presence, he is apportioned the remainder; if not [that is, the deceased does not leave an heir], the remainder shall be added to [the share of] the sister because of her kinship. The same rules are applied to a consanguine sister. If there is a uterine sister, she is allotted one-sixth as a determined share; if there is also an heir who can claim an inheritance in her presence, he shall receive the remainder; if not [that is, there is no heir], the remainder shall be added to her [share] because of her kinship. If there are three sisters of different categories, that is, a full sister, a consanguine sister and a uterine sister, the uterine sister has the right to one-sixth and the full sister to the remainder, while the consanguine sister does not receive anything.

If there are a full brother and sister, the estate shall be divided between them, giving the male a portion equivalent to that of two females. If there are brothers and sisters, be they few or many, and they are the offspring of the same father and mother, the estate shall be divided among them, giving the male double the share of the female. The same rules are applied to a consanguine brother and sister: the estate shall be divided between them, giving the male double the share of the female. If there are many brothers and sisters (fol. 10v), but they are the offspring of the same father, [then] the estate shall be divided among them, alloting a male a portion equivalent to that of two females. But it is not the same with regard to uterine half-siblings, that is, a uterine brother and sister, because they have the right to a fixed share which can be neither increased nor decreased, as in the case when [only] a uterine brother and [only] a uterine sister are present; in fact, they have a right to one-third, divided equally between them; a male has no pre-eminence over a female [in this case]. If there are two or more uterine brothers and sisters, [then] they share one-third; [here, too,] a male has no pre-eminence over a female; as a matter of fact, the one-third shall be divided equally among them, while the remaining part of the estate shall be apportioned among those relatives who can inherit in the presence of uterine half-siblings, if any; otherwise [that is, if there are no such relatives], the remainder shall be added to the [share of the] uterine half-siblings [and] divided equally among the males and females.

If two full brothers, two consanguine brothers and two uterine brothers are present, the uterine brothers have a right to one-third, and the full brothers to the remainder; consanguine brothers do not receive anything, because they are excluded by full brothers. The same is true if there are many brothers of different categories: uterine brothers, be they two or more, shall receive one-third (fol. 11r), divided equally among them, while the remainder shall be apportioned to full brothers. If there are two full sisters, two consanguine sisters and two uterine sisters, the uterine sisters have the right to one-third as a determined share, and the full sisters to two-thirds as a determined share, while the consanguine sisters are excluded from inheritance. The same is the case when full, consanguine and uterine sisters are present, even if there are many of them; as a matter of fact, full sisters have a right to two-thirds and uterine sisters to one-third, divided equally among them, while consanguine sisters do not receive anything. If there are a full brother and sister, a consanguine brother and sister and a uterine brother and sister, the uterine brother and sister have a right to one-third, divided equally between them, while the remainder shall be apportioned to the full brother and sister [and be] divided between them, giving the male double the share of the female; the consanguine brother and sister do not receive anything.

If there are a full brother’s son and a consanguine brother, the estate shall be allotted to the consanguine brother, because he is more closely related to the deceased person, while the full brother’s son does not receive anything. If there are a full brother’s son and a consanguine brother’s son, they are of the same degree; the most entitled (fol. 11v) [to the inheritance], however, is the full brother’s son, who, therefore, shall receive the whole estate. If there are a full brother’s son and a uterine brother, according to our Companions, God’s blessings be upon Them, the estate shall be allotted to the uterine brother, while the full brother’s son is excluded from the inheritance. If there are a consanguine brother’s son and a uterine brother, the uterine brother shall obtain the whole estate, while the consanguine brother’s son does not receive anything. If there are a full brother’s son and a consanguine brother’s son, the estate shall be apportioned to the former, as he is the nearest to the deceased person because of his mother. If there are a full brother’s son, a consanguine brother’s son and a uterine brother’s son, the latter shall receive one-sixth, that is, his mother’s share, while the full brother’s son shall receive the remainder. Then, this pattern shall be followed, however low their degree, on the condition that their degree is the same and none of them belongs to a lower degree; in this case, each of them represents the relative through whom [they are] related [to the deceased]. This is not the case if one of them is more remote; as a matter of fact, the nearest relative debars the more remote and is more entitled to receive the estate.

Section 9. Brothers, sisters and parents

If a man dies and leaves a brother and his parents (fol. 12r), his mother has a right to one-third and his father to the remainder. If he leaves two brothers and his parents, the inheritance of his brothers causes a reduction of his mother’s share from one-third to one-sixth [and his father has a right to the remainder]; but brothers do not receive anything, according to God’s Word, the Almighty and Sublime. As a matter of fact, if he [the deceased] leaves brothers, the mother has a right to one-sixth; thus the mother shall receive one-sixth and the father the remainder. If there are a brother, a sister and his parents, his mother shall receive one-third, and his father the remainder. Neither a brother nor one or two or three sisters causes a reduction in the mother’s share from one-third to one-sixth; but only two or more brothers, or a brother and two sisters, because two sisters are considered like a brother, as if there were two brothers, [causes a reduction]. On the one hand, they cause a reduction in a mother’s share from one-third to one-sixth; on the other, they allow the father’s share to be increased from four-sixths to five-sixths, but they [brothers/sisters] do not receive anything. If two brothers and a great or small number of sisters are present, the brothers and sisters do not receive anything in the presence of the father. If a brother and mother are present, the latter has the right to one-third and to the remainder; however, if a deceased person leaves a relative who can inherit in the presence of a mother, he can claim his due; if not [that is, the deceased leaves no such relative], the remainder shall be added to the [share of the] mother because of her kinship. If there are two brothers (fol. 12v), the mother can claim one-sixth as a determined share, and the remainder shall be added to her share because of her relationship to the deceased person.

If an only brother, whether he be a full brother or a consanguine brother, and a grandfather, that is a father’s father, are present, the estate shall be divided equally between them. As a matter of fact, according to our Companions, God’s blessings be upon Them, a grandfather holds the same status as a brother. If two brothers and a grandfather are present, the estate shall be divided into three portions. If he [the deceased] leaves a full or consanguine brother’s son and a grandfather, the estate shall be divided equally between the two. Likewise, if there are many brothers, a grandfather shall be considered as one of them. The same rule must be applied if a brother’s sons and a grandfather are present; that is, any estate shall be divided equally among them. If he [the deceased] leaves a uterine brother and a paternal grandfather, the uterine brother has the right to one-sixth, and the grandfather to the remainder; but if there is a uterine brother’s son, the whole estate shall be apportioned to the grandfather; in fact, a uterine brother’s son does not receive anything in his presence. If brothers and sisters of different categories, that is, a full brother and sister, a consanguine brother and sister and a uterine brother and sister, are present, the maternal half-siblings shall be allotted one-third, divided equally between the male and the female. The remainder shall be apportioned to the full brother and sister and the grandfather, giving the male double the share of the female; the grandfather shall receive (fol. 13r) the same quota as a brother, while paternal brothers and sisters are excluded from the inheritance. Then, this pattern shall be followed: that is, be the brothers many or few, a grandfather holds the same status [for the share of an inheritance] as a brother.

They [the Companions], God’s blessings be upon Them, related that the Messenger of God, God bless Him and grant Him salvation, let a brother’s son inherit in the presence of a grandfather, dividing the estate equally [between them]. However, if he [the deceased] leaves a full or consanguine brother’s son [and a grandfather], the estate shall be divided equally between the two, but not if the brother’s descendants are on the maternal side.5 This is because there is no explicit ruling on this matter. If a grandfather and a mother are present, the latter has the right to one-third as a determined share, while two-thirds are added to her [share] because of her kinship; a grandfather does not receive anything in the presence of a mother.

Section 10. Paternal uncles, brothers and sisters

If a man dies and leaves a paternal uncle and a brother, any property shall be apportioned to the brother. If a paternal uncle and a sister are present, the latter has the right to one-half as a determined share and to one-half because of the proportional increase, while a paternal uncle does not receive anything in the presence of [the deceased’s] sisters. If a brother’s son and a paternal uncle are present, the estate shall be allotted to the brother’s son. The same is the case if brothers and sisters are present; as a matter of fact, the estate shall be divided between them, giving the male double the share of the female. If, however, uterine brothers and sisters, be they few or many, and a paternal uncle are present (13v), the estate shall be divided equally among the female and male uterine half-siblings.

If a uterine brother’s son and a paternal uncle are present, the estate shall be apportioned to the uterine brother’s son. As a matter of fact, a paternal uncle does not receive anything in the presence of brothers and sisters of any kind, because both the father’s offspring and mother’s offspring are more entitled [to the inheritance] than the grandfather’s offspring; in fact, a paternal uncle belongs to the grandfather’s offspring, while brothers and sisters may belong either to the father’s or the mother’s offspring.

If a father’s full brother and a father’s consanguine brother are present, the estate shall be apportioned to the father’s full brother. Likewise, if a father’s consanguine brother and a father’s uterine brother are present, the estate shall be apportioned to the father’s consanguine brother, while the father’s uterine brother does not receive anything. This case cannot be compared by analogy to a case where uterine brothers and sisters are present, because they are allotted a fixed share in the Book of God; it is not so, however, with regard to paternal uncles. In fact, the principle to be followed with regard to paternal uncles is that the nearest of them debars the most remote.

If the sons of a father’s full brother and a father’s uterine brother are present, the estate shall be apportioned to the latter. If the son of a father’s full brother and the son of a father’s consanguine brother are present, the estate shall be apportioned to the son of the father’s full brother. If he [the deceased] leaves the son of his father’s consanguine brother and the son of his father’s uterine brother, the former has the right to two-thirds, and the latter to one-third, because the son of the father’s consanguine brother is related to [the deceased through] the father, while the son of the father’s uterine brother is related to [the deceased through] the mother; thus, each one of them must (fol. 14r) receive the same share [that would have been] allotted to the relative through whom he is related [to the deceased].

If a son and a daughter of a father’s full brother are present, the estate shall be divided between them, giving the male double the share of the female. The same solution applies if the son and the daughter of a father’s consanguine brother are present. But it is not the case if the son and the daughter of a father’s uterine brother are present, because a male has no pre-eminence over a female among the maternal half-siblings; in fact, the estate shall be divided equally between them, be they few or many.

Section 11. Paternal and maternal uncles and aunts and their descendants

If a man dies and leaves a paternal uncle and a maternal uncle, the maternal uncle has the right to one-third [of the inheritance] and the paternal uncle to two-thirds, because a paternal uncle is a father’s brother and a maternal uncle is a mother’s brother; thus, each one of them can claim the same share of the relative to whom he is related. In the same way, if a paternal aunt and a maternal aunt are present, the paternal aunt shall receive two-thirds and the maternal aunt one-third. If a paternal uncle’s son and a maternal uncle are present, the estate shall be allotted to the maternal uncle to the exclusion of the other. If a paternal uncle’s son and a maternal uncle’s son are present, the first has the right to two-thirds and the latter to one-third. If a paternal uncle’s daughter and a maternal uncle’s son are present, the former can claim two-thirds and the latter one-third. If a paternal uncle’s daughter and a maternal uncle’s daughter are present, the former has the right to two-thirds and the latter to one-third (fol. 14v). The same rule shall be applied if they [the heirs of the third class, that is, the uncle’s descendants] belong to a lower degree. As a matter of fact, each of them, when they belong to the same degree, are treated like their parents. If, however, one is [of a] lower [degree] than the other, the property shall be allotted to the nearest of them [that is, the one who is of the higher degree]. Then, this pattern shall be followed; that is, if a paternal aunt’s son and a maternal aunt’s son are present, the former is entitled to two-thirds and the latter to one-third. If a paternal aunt’s daughter and a maternal aunt’s daughter are present, the former can claim two-thirds and the latter one-third.

If a grandfather and a paternal uncle are present, the estate shall be apportioned to the grandfather. The same is the case if a grandfather and a paternal aunt, or a grandfather and a maternal aunt, are present.

If a paternal grandfather, i.e. father’s father, and a maternal grandmother, i.e. mother’s mother, are present, the grandmother is entitled to one-third and the grandfather to two-thirds. If there are two grandfathers, one being a paternal grandfather and the other a maternal grandfather, the one related to the father can claim two-thirds, while the one related to the mother is entitled to one-third. If a father’s mother and a mother’s father are present, the former has the right to two-thirds and the latter to one-third. Likewise, if they [that is, ascendants/grandparents both on the paternal and maternal side] are of the same degree, however high, the inheritance shall be divided between them according to this pattern; that is, these relatives can claim all these shares only if no heir more entitled than them is present, according to what (fol. 15r) we mentioned, following the principle of proximity.

A grandmother is never debarred [from inheriting] because of the presence of direct descendants and other heirs, according to what was related on the authority of the Messenger of God, God bless Him and grant Him salvation, as he allotted one-sixth to a grandmother on the maternal side in the presence of the deceased person’s descendants and other heirs, when the mother has not survived. If two grandfathers, that is, a father’s father and a mother’s father, and two grandmothers, that is, a father’s mother and a mother’s mother, are present, the paternal grandfather and grandmother are entitled to two-thirds, distributed between them giving the male double the share of the female, while the maternal grandfather and grandmother have the right to one-third, divided equally between them.

If a maternal uncle and aunt and a paternal uncle and aunt are present, the paternal uncle and aunt are allotted two-thirds, divided between them, giving the male a portion equivalent to that of two females, while the maternal uncle and aunt are entitled to one-third, divided equally between them. The principle is that those who are related to the mother shall divide the estate, among them, apportioning the same share to males and females.

Section 12. Inheritance of the hermaphrodite

If a man dies and leaves a son and a child who is a hermaphrodite, the son has the right to one-half of the estate and the hermaphrodite to one-third, while one-sixth shall be retained [until the hermaphrodite’s dominant gender can be ascertained]; the denominator of the fraction is six. If a liquid flows out of the vulva and the penis of the hermaphrodite at the same time (fol. 15v), he shall be considered ambiguous; if, however, it flows out first from the penis, the rule of a male shall be applied; thus, what remains, that is [the retained share of] one-sixth, after the attribution of the share to the son, shall be allotted to him. The denominator of the fraction is six. If, instead, the liquid flows out first from the vulva, the rule of a female shall be applied; in this case, the [retained share of] one-sixth shall be allotted to the son; in fact, the hermaphrodite can claim only the one-third [share] which he has already formerly received. If this situation does not occur [that is, the gender remains ambiguous], one has to look for which of the two sexes first ceases to urinate; having observed which of the two first ceases, the rule to be applied is that of the sex which did not cease. In the case where none of the two sexes first stops or first ceases to urinate, the hermaphrodite shall receive half the share apportioned to a male and half the share apportioned to a female.

It is related on the authority of the Commander of the believers, God’s blessings be upon Him, that he decided a case in the same manner, unless he [alternatively] ordered a count of the ribs on the right and on the left; if the ribs on the right are more than those on the left, the rule [of inheritance] valid for a man shall be applied; if, however, the ribs on the right and on the left are equal in number, the rule valid for a female shall be applied. However, no one can decide in the same way as the Commander of the believers did, God’s blessings be upon Him, except the imam. As far as the other judges belonging to the people of the purity are concerned, they can judge (fol. 16r) only having recourse to the previous proof, because only the imam, peace be upon Him, can determine the number of ribs on each side.

Section 13. The foundling (laqīṭ) and those related to him

If a foundling dies and leaves his wife, she can claim one-quarter [of the inheritance], while the remainder shall be given to the Public Treasury. If he leaves a son and a wife, the latter has the right to one-eighth and his son to the remainder. If he leaves his wife and a daughter, his wife has the right to one-eighth and his daughter to one-half as a determined share; then the remainder shall be added to the [share of the] daughter. The rules to be applied to his children, be they males or females, however low, are the same usually applied to children. The same is true with regard to spouses, as only direct children, children’s descendants and a wife are entitled to receive an inheritance from a foundling. A female foundling is treated as a male foundling because her kinship is unknown. In fact, it is impossible to establish the tie of relationship of an abandoned person with reference to a father, a mother, brothers or sisters.

Section 14. The son of a mulāʿana (wife repudiated through a sworn allegation of adultery)

If a son of a mulāʿana dies and leaves his mother and a son, the former can claim one-sixth and his son the remainder. If he leaves his mother and a daughter, his mother has the right to one-sixth, as a determined share, and his daughter to one-half, as a determined share, while the remainder shall be added proportionally to [the share of] his mother and daughter; thus, the denominator of the fraction (fol. 16v) is four: three shares to his daughter and one share to his mother. If his mother, a son and a daughter are present, his mother is entitled to one-sixth, and his children to the remainder, giving the male double the share of the female. If he leaves his mother and a brother, the estate shall be apportioned to his mother, while his brother is excluded from the inheritance. In the same manner, if brothers and sisters, be they few or many, and his mother are present, the whole estate shall be allotted to his mother, because all of them belong to his mother’s descendants, because a father, to whom they could be related, does not exist. Brothers and sisters, as long as their mother is alive, neither debar her from the inheritance nor receive anything. In fact, if a man leaves his wife, his mother and a brother, his wife is entitled to one-quarter, and his mother to the remainder. If he leaves his wife, his mother and a son, his wife has the right to one-eighth, his mother to one-sixth, and his son to the remainder.

If a daughter of a mulāʿana dies and leaves her husband and a brother, the former has the right to one-half and her brother to one-sixth as a determined share, because he belongs to the maternal half-siblings; the remainder shall be added to [the share of] her brother because of his kinship. If she leaves her mother, her husband and a daughter, her husband can claim one-quarter, her mother one-sixth and her daughter one-half; the remainder shall be added proportionally (fol. 17r) to [the share of] her daughter and mother. If she leaves her husband, a son and a daughter, her husband is entitled to one-quarter, while the remainder shall be divided between the children, giving the male double the share of the female. The paternity of a son of a mulāʿana is not established; thus, on the one hand, he cannot inherit from his father; on the other, his father cannot inherit from him. All the rules to be applied to a son of a mulāʿana are those usually applied to a son, except those rules concerning the father and relatives related to him.

Section 15. Drowned persons and those who die in a natural disaster

If two brothers drown and it is impossible to ascertain which of them has died first, each one of them inherits from his brother, as in the case when one owns one thousand dirham and the other five hundred dirham: one thousand dirham shall be divided among the heirs of the other, in the same manner [that] the amount of five hundred dirham shall be divided among the heirs of the brother who left one thousand dirham, [but] on the condition that an heir more entitled than the two brothers is not present. Likewise, if one of them leaves an estate and the other has none, the estate belonging to the first shall be divided among the heirs of the brother who did not leave anything. The same principle is followed if the drowned persons and those who died in a natural disaster are many; that is (fol. 17v), they [all] have the right to inherit from each other. The reason is that we are not aware whether they died at the same time or [whether] one of them died first by an hour or a breath. Thus, one of the two is deemed to have lived for a little more than his brother; therefore, we let him inherit from his brother. Then the latter is deemed to have died first; therefore, we let him inherit from his brother in the same manner as we did in the former case. In this way, the estate of the two brothers is distributed between their respective heirs, thus preventing the properties of the two brothers from being combined and then divided; but only the estate of each of the two shall be considered and divided between the heirs of his brother. Then, this pattern shall be followed.

Section 16. The inheritance of a slave manumitted through a written contract (mukātab), and of a slave partially manumitted who desires the manumission of the remaining part

A mukātab dies and leaves a son and an estate; if the goods which he has left can support and exceed what he should pay for his manumission, the remaining part of the mukātaba6 shall be paid to his patron, while the remainder [of the estate] shall be apportioned to his son. If, instead, what he has left is not enough to pay the remaining part of the mukātaba, the estate shall be given to his patron, and the patron has the right to the remaining part of the mukātaba, instead of the slave’s child. If, however, his estate is significant, it is used to pay the remaining part of the amount to the patron of his father. When (fol. 18r) the estate and the amount of the mukātaba are equivalent, the son does not inherit any portion of the estate, but he shall be freed.

If a slave has stipulated a manumission by a conventional amount, but he did not pay anything and he leaves children, all the children are involved in the mukātaba of their father, unless their father is unable to pay it; in this case all the children shall revert [to being] slaves. If a mukātab has paid what is due, all the rules to be applied to his children are the same [as those] pertaining to an heir who leaves children and one of the spouses. As a matter of fact, the estate shall be divided among them apportioning the shares [as] determined by God. The rules to be applied to them are [the same as] those valid for free people, except if descendants, or wives, or other heirs, are not present; in this case, the estate shall be apportioned to the patron of the manumitted slave. If his patron is not alive, the estate shall be given to the patron’s heirs, except the wives/husbands of the person who manumitted the slave. As a matter of fact, they do not inherit anything, but the estate shall [then] be apportioned to the Public Treasury.

Section 17. Rules to be applied to heirs as yet unborn

If a man dies and leaves children and a pregnant wife, the inheritance shall be frozen in favour of the foetus [until the wife gives birth] (fol. 18v). If the woman gives birth to a child who is alive, showing movement by a breath, or a blink of his eyes, or something which lets us perceive that he is [indeed] alive, he shall receive inheritance as one of the heirs. If, instead, she gives birth to a stillborn child, on the one hand, the stillborn child cannot inherit; on the other, the stillborn child does not prevent anyone from inheriting; so the estate shall be divided among the most entitled heirs. For example, if a man dies and leaves a son’s children, the latter are treated as direct descendants; that is, the estate shall be divided between them in the same manner as though direct descendants were present; but if a man leaves a pregnant wife, nothing shall be allotted to the heirs until the woman gives birth. If she gives birth to a son or a daughter, the latter debars a son’s children [from inheriting]; thus, they do not receive anything in the presence of a newborn child. Likewise, if a man dies and leaves brothers, sisters and a pregnant wife, the estate shall not be divided until the case of the unborn child becomes clear. As a matter of fact, if she gives birth to a son or a daughter, both cause the exclusion of brothers and sisters from the inheritance; in fact, on the one hand, the brothers and sisters do not receive anything in the presence of a child; on the other, a child causes the mother’s share to be decreased from one-quarter to one-eighth.

If a wife miscarries a foetus whose physical constitution and movement are not evident, on the one hand, the foetus does not prevent [the deceased’s] brothers and sisters from inheriting (fol. 19r); on the other, the foetus does not impede his mother from receiving one-quarter [of the inheritance]. Then, this pattern shall be followed: that is, if the surviving wife is pregnant, the division of the estate is not permitted until the case of the unborn child becomes clear. If she gives birth to a child who shows a movement or a breath, even if for a moment, he can claim inheritance and his heirs can inherit from him. If, instead, the child comes out stillborn, neither he nor his heirs inherit.

In the inheritance cases concerning a newborn child, his shape (ṣūra) is not taken into consideration, but only whether he is alive, whatever his form. His shape is considered only with reference to the manumission of his mother, if she is a slave. As a matter of fact, if his shape is evident, his mother is freed. But if she gives birth to a stillborn child and his shape does not become clear, his mother shall not be manumitted. All these cases are considered on account of the manumission of his mother, if she is a slave. Thus, if the child’s shape is evident, his mother shall be manumitted. All these cases must be taken into account according to these categories, even if the rules of the inheritance applied to them are different.

Section 18. Inheritance of spouses when a repudiation occurs, which gives rise to the period of waiting, conforming to the customary practice, inasmuch as the restoration of their conjugal life is possible

A man dies and leaves children (fl. 19v) and a repudiated wife; if her husband still had the right to restore conjugal life, she inherits his property. If, instead, she has been repudiated in a definitive manner, [that is,] in such a way that her husband no longer had the right to restore conjugal life, she cannot inherit anything from him. Likewise, if a [repudiated] woman dies and leaves children and her husband, the latter inherits from her if he still had the right to restore conjugal life. However, this is not the case if a husband repudiates his wife during his mortal illness. As a matter of fact, according to our Companions, God’s blessings be upon Them, if her husband repudiated her in a definitive way during his mortal illness, [and] then dies as a consequence of that illness during which he repudiated his wife, the woman is [nevertheless] entitled to inherit from her husband, except if she has re-married, in which case, she does not inherit anything from him. If this man recovers from that illness for a few days, then relapses and finally dies, his wife does not inherit anything from him.

Section 19. Shares which are not fractional numbers

If a share of one-half and the remainder are allotted [to an heir], the denominator of the fraction is two. The denominator of an inheritance case which contains a share of one-third and the remainder, or [a share of] one-third and two-thirds, is three. When a share of one-quarter and the remainder, or one-quarter, one-half and the remainder are mentioned, the denominator is four. When (fol. 20r) one-sixth and the remainder, or one-sixth, one-third and the remainder, or two-sixths and the remainder, or two-sixths, one-half and the remainder, or one-sixth and one-half [and the remainder] are mentioned, the division of the estate into six portions does not leave fractional numbers; the unit share is one-sixth. Then this pattern shall be followed. If the solution of an inheritance case includes the mention of two-thirds, the lowest denominator is three, unless [shares of] two-thirds and two-sixths are to be apportioned, like with the shares of daughters and parents: the first are entitled to two-thirds and the latter to two-sixths; or also when two-thirds, one-sixth and the remainder are to be apportioned. As a matter of fact, in all these cases, the denominator is six. Then this pattern shall be followed: that is, the denominator must be the lowest number, if possible, on the condition that the shares are whole numbers, and none of them is fractional. In any case, if the lowest denominator is a whole number, it is not necessary to have recourse to the highest denominator.

If a case includes the mention of one-eighth and the remainder, the denominator is eight. However, if one-quarter and one-sixth, or one-quarter and two-sixths, are mentioned, there is no common denominator between them. In fact, if one-quarter and one-sixth meet, it [the denominator] might become ten [4+6]; however, neither one-sixth nor one-quarter would be whole numbers [in this case]. In this case, the method to be followed is that you have to look for a denominator which allows [the sum of] one-sixth and a quarter to become (fol. 20v) whole numbers. If you do not find such a denominator, you look for the factor they have in common. If you look for a factor which allows to have a whole number both with respect to a one-sixth and a one-quarter, we find that the divisor of a quarter is four, and the divisor of one-sixth is six; in this way, we find the divisor of the two fractions; the half of each of them is right. If you multiply the half of six by four, or the half of four by six, it is right. If, however, we verify that we cannot find whole numbers using the half of the divisors of the two fractions, we need to multiply six by four, or four by six; but the portions become numerous. Therefore, if we find that the half of each number is right, we multiply the half of six, that is, three, by four; the result is twelve. In this way the solution is right. For example, a woman dies and leaves her father, her husband and a son. Her father has a right to one-sixth, that is two shares; her husband to one-quarter, that is three shares; the remainder, that is seven shares, shall be apportioned to the son (fol. 21r). The sum is twelve. Similar cases must be solved in the same way.

Likewise, if shares of one-eighth and one-sixth, or one-eighth and two-sixths, or one-eighth and two-thirds, must be distributed, and a divisor of one share does not permit whole numbers, you have to ascertain which divisor is right for both fractions. In fact, if we have shares of one-eighth and one-sixth, the number eight can be deduced from one-eighth and six from one-sixth; the sum of them is fourteen, from which, however, a whole one-sixth [share] and a whole one-eighth [share] cannot be deduced. Thus, you must follow the same method used for the previous case concerning one-quarter and one-sixth, because their halves are compatible. In fact, if you try to multiply the half of six by the whole of eight, or the half of eight by the whole of six, this is right.

If the shares are one-eighth and two-thirds, they do not have any factor in common. As the divisor of two-thirds is three, the divisor of the two fractions have no common denominator which could impede the presence of fractional shares. This is because both have in common neither the third of the two divisors nor their half; thus you need to multiply (fol. 21v) one of the two divisors by the other, that is three by eight, or eight by three. For example, if a man dies and leaves two daughters and his wife, his daughters have a right to two-thirds and his wife to one-eighth, while the remainder shall be added to [the share of] his daughters because of their kinship, not as a determined share. This order shall be followed in similar cases. If a woman dies and leaves her husband, a son and two daughters, the denominator of the fraction is four: a quarter to her husband, while the remaining three shares shall be divided among her children in four parts, giving a male double the share of a female. However, four parts cannot be found from three as whole shares. As a son has the right to two shares out of four and each daughter to one share, the available three parts give rise to fractional shares. Thus the method to be followed is to ascertain which number is common to four and three; if it does not exist, you take the number of the shares which give rise to fractional numbers, that is the shares of the children, that is, four, and multiply it by the denominator of the fraction, that is four by four; the result is sixteen. [Thus,] a quarter, that is four shares, to [be given to] her [that is, the deceased’s] husband; six out of the remaining twelve shares shall be apportioned to her son and three shares to each daughter. The sum is sixteen; in this way the solution is right (fol. 22r).

Likewise, if there are a wife, two daughters and the parents, the denominator of the fraction is eight, because one-eighth is mentioned as far as the wife’s share is concerned; two-sixths [and] one-sixth each are mentioned as far as the parents are concerned; and the remainder shall be divided into halves between the daughters. In such a way one-eighth and two-sixths shares cannot be a divisor of any of the two fractions, that is one-eighth and one-sixth. In fact, the denominator of one-eighth is eight, while the denominator of one-sixth is six. For this, on the one hand, one-eighth and two-sixths shares cannot have eight as a divisor; on the other, two-sixths and one-eighth cannot have six as a divisor. But if you add eight, which is the denominator of one-eighth, and six, which is the denominator of one-sixth, the result is fourteen. However, not even in this way can you have a common denominator for both one-eighth and two-sixths. Therefore, the method to be followed is to multiply the half of six by eight in order to find a common denominator that does not result in fractional shares. Or you have to multiply the half of eight by six; the result is twenty-four: one-eighth, that is three shares, to the wife; two-sixths, that is eight shares to parents, [or] four [shares] each; the remaining part shall be divided into halves between the daughters. In this way, the solution is correct.

In the same manner, if a man dies and leaves his wife, a uterine brother, two consanguine brothers and two consanguine sisters (fol. 22v), the denominator of this fraction is four, because one-quarter, that is his wife’s share, is mentioned. In fact, his wife is entitled to one-quarter, the uterine brother to one-sixth, while the remainder shall be divided between the two brothers and the two sisters, giving the male double the share of the female. However, neither four nor six are common divisors of all these shares, because such division creates fractional numbers. Therefore, the method to be followed is to multiply the half of six, with reference to the one-sixth share, by four, with reference to a quarter share [to find a common denominator]. The result is twelve: [thus,] a quarter, that is three shares, to his wife, [and] one-sixth, that is two shares, to the uterine brother. [However,] the remaining seven shares cause fractional numbers if divided by six among the consanguine brothers and sisters, because each brother is entitled to two shares and each sister to one share. Therefore, the method to be followed is to multiply the number of shares to be given to the brothers and sisters, which give rise to fractional shares, that is six, by the denominator of the fraction, that is twelve. The product is seventy-two: a quarter, that is eighteen shares, to the wife; one-sixth, that is twelve shares, to the uterine brother; [and] the remaining forty-two shares shall be divided between the two brothers and the two sisters, giving the male double the share of the female, [that is] fourteen shares to each brother and seven shares to each sister. In this way the solution is correct.

In the same manner, if a woman dies and leaves her husband (fol. 23r), three uterine sisters, three consanguine brothers and two consanguine sisters – the denominator of this fraction is two, because one-half, her husband’s share, is mentioned. If we apportion a share of one-half to the husband, a portion remains, which cannot be exactly divided among the remaining heirs. Therefore, the method to be followed is to multiply two, with reference to two halves which constitutes the denominator of the fraction, by three, because one-third, which is the uterine children’s share, is mentioned. The result is six: a half, that is three shares, to her husband, while uterine children are entitled to one-third, that is two shares out of the remaining three. However, two shares cannot be exactly divided among the uterine children, as there are three of them. Therefore, the method to be followed is to multiply the number of those heirs who cause fractional shares, that is, the three uterine children, by the denominator of the fraction derived from the first operation. The result is eighteen: a half, that is nine shares, to her husband; one-third, that is six shares, to the three uterine sisters, divided among them, giving two shares to each sister; the remaining three shares, however, cannot be exactly divided among the consanguine brothers and sisters. As there are three brothers and two sisters, eight shares are needed, because each brother is entitled to two shares and each sister to one share. Consequently, three cannot be exactly divided into eight. Therefore, the method to be followed is to multiply the number of shares to be given to the consanguine brothers and sisters (fol. 23v), which are eight, which causes fractional numbers, by eighteen, which is the denominator of the fraction after the second operation. The result is 144: [thus,] her husband is entitled to a half, that is, seventy-two shares; [her] uterine sisters to one-third, that is, forty-eight shares; as they are three, each of them shall receive sixteen shares; the remaining twenty-four shares shall be divided between the consanguine brothers and sisters, who are three brothers and two sisters, giving the male double the share of the female: [thus,] each brother is entitled to receive six shares and each sister to three shares. The sum is 144. In this way the solution is correct. Then this pattern shall be followed; that is, whenever the shares allotted to the heirs by quota are fractional numbers, you multiply the number of the shares which gives rise to fractional numbers by the denominator of the fraction; then this kind of operation shall continue until whole numbers are obtained.

Section 20. The inheritance of the ahl al-dhimma: protected Christians, Jews and Mazdeans

According to our Companions, God’s blessings be upon the whole Family of the Prophet, a Muslim inherits from a Christian, but not vice-versa. Likewise, the other protected non-Muslims do not inherit from them, as in the cases illustrated below.

If a Christian dies and leaves a Christian son and a Muslim son’s son (fol. 24r), the estate shall be divided into halves between the Muslim son’s son and the Christian son. If he leaves a Christian son and a Muslim daughter, the estate shall be divided between them, giving the male double the share of the female. If he leaves a Christian son and a Muslim daughter’s son, the latter is entitled to one-third, that is, his mother’s share, while the remainder shall be allotted to the Christian son. In the same manner, if there are a Christian son and a Muslim daughter’s daughter, the latter shall receive her mother’s share, that is one-third. Likewise, if a daughter’s descendants and a son’s descendants are Muslim, they, however low, shall receive their parents’ share: a son’s children take the son’s share and a daughter’s children the daughter’s share.

If a [Christian] man leaves a Christian son and a Muslim brother, the latter shall receive half of the estate because of Islam. In fact, the son has pre-eminence [to the inheritance] because of his kinship, but the brother has pre-eminence because of Islam; as both of them are males, the estate shall be divided into halves. If a Christian son and a Muslim sister are present, the latter has the right to one-third, and the son to the remainder. If a Christian son, a Muslim brother’s son and a [Muslim] brother’s descendants, however low, are present, the latter shall receive their father’s share; males are treated like males and females like females.7 If a Christian son and a Muslim paternal uncle are present, the estate shall be divided into halves, based on what we mentioned; that is, on the one hand, Islam gives pre-eminence both as far as kinship and title [marriage or patronage] are concerned; on the other, unbelief does not prevent Islam[ic heirs from inheriting]; for this, a paternal uncle shall receive a one-half estate. Likewise, a [Muslim] paternal uncle’s descendants shall receive half the estate, be they males or females. But if a [Muslim] brother’s descendants, whether males and females, or a [Muslim] paternal uncle’s descendants, whether males and females, are present, they are entitled to receive their father’s share, divided giving the male double the share of the female. If a Christian man dies and leaves a Christian son and daughter, and a Muslim daughter, the Muslim daughter is reckoned [together] with the brother and two sisters, as far as the attribution of her father’s estate is concerned, giving the male double the share of the female. If a Christian son and a Muslim father are present, the estate shall be divided into halves between them. The son does not partially debar his father from inheritance. As for the objection to the father receiving half the estate in this case, since the Islamic rule allows him only a share of one-sixth in the presence of a child, here the son does not partially debar his father. In fact, if we suppose that a person dies, but he does not leave any relative except his father, the father is entitled to receive the whole estate (fol. 24v). Then let us imagine the case considering kinship; if a person dies, but he does not leave anyone other than a son, the solution is that the son is entitled to receive the whole estate. Therefore, if [both] the father and son are present, we divide the estate into halves, based on what we mentioned.

If a [Christian] man leaves a Christian son and his Muslim mother, the latter shall receive a [share of] one-third [of the inheritance] and the son the remainder. If he leaves a Christian daughter and a Muslim son, the daughter has the right to one-third and the son to two-thirds. If he leaves a Muslim daughter and a Christian son’s son, the whole estate shall be apportioned to the daughter, because she is more entitled on account of proximity, kinship and Islam. If he leaves a Christian son’s son and a Muslim son’s son, the estate shall be divided into halves. If he leaves a Muslim son’s son and a Christian paternal uncle, the estate shall be allotted to the son’s son. If he leaves a Muslim paternal uncle and a Christian brother, the estate shall be divided into halves. Then this pattern shall be followed: that is, if someone among the grandfather’s descendants (that is, a paternal uncle and his sons), the father’s descendants (that is, a brother and his sons), and the direct descendants (that is, a son and his sons), or an heir belonging to one of the previous categories, and a Christian son, are present at the same time, the Christian son shall receive one-half; then one establishes who among the Muslim heirs of the different lines is the nearest [relation] to the deceased person, and he will be the only one entitled to receive the remaining part of the estate (fol. 25r). The rules to be applied to them are those valid for Islam: that is, on the one hand, males are treated like males and females like females; on the other, the nearest [relative of the deceased] debars the most remote from inheritance.

If a Christian dies and leaves a Muslim brother and a Christian brother, the estate shall be divided into halves. If he leaves a Christian brother and a Muslim sister, the estate shall be divided between them, giving the male double the share of the female. If he leaves a Christian brother’s son and a Muslim sister, the estate shall be apportioned to the sister. If he leaves a Christian brother and a Muslim paternal uncle or a Muslim paternal uncle’s son, the estate shall be divided into halves between his brother and his paternal uncle, or his brother and his paternal uncle’s son. Then this order shall be followed: that is, if a Muslim heir is more remote[ly related to the deceased] than a Christian heir, the Muslim inherits in the presence of the Christian direct descendants, and receives his parents’ or grandparents’ [sic] share (ḥaqq abawayhi aw ajdādihi), as is [also] the case when a Christian child and a Muslim maternal uncle are present; in this case the maternal uncle shall receive his mother’s share, that is one-third, when the deceased person does not leave a Muslim child. On the one hand, this Christian child holds the same status as [a Muslim child when a deceased person leaves] no [Muslim] child [a Muslim child excludes a Christian child]; on the other, the mother’s share of one-third cannot be decreased because of the presence of a Christian child. Then this order shall be followed: that is, on the one hand, whoever of the Muslim heirs who is related to his mother shall receive his mother’s share; on the other, a Christian child does not debar from inheritance either his Muslim mother who is heir, or whoever of the Muslim heirs who is related to his mother. The same rule shall be applied to his father’s and grandfather’s children. Unbelief does not exclude [heirs of the] Islam[ic faith] from any right [of inheritance].

As far as the Mazdeans, who consider it lawful to marry their sisters, are concerned, their rule is valid for them. But if they wish Islamic rules to be applied to them, they can inherit (fol. 25v) based on both titles. For example, if a Mazdean dies and leaves a wife who is [also] his sister and another sister, his sister-wife shall receive a quarter [of the inheritance], and the remaining part shall be divided into halves between the two sisters. Likewise, if a Mazdean dies and leaves two daughters, one of whom is his wife, and a son, his wife shall receive one-eighth, then the wife [shall] share the [rest of the] inheritance with her sister and her brother, giving the male double the share of the female. What is lawful for them follows this pattern; this means that an heir inherits based on both titles, as in this and similar cases. But if a Mazdean dies and leaves a Muslim child or Muslim females, the rules we mentioned for Christians shall be followed.

However, it is not so if a Christian dies and leaves a Muslim son and a Christian son’s son; in this case, the estate shall be apportioned to the Muslim son, while the Christian son’s son does not inherit anything. Likewise, if he leaves a Muslim brother and a Christian brother’s son, the Muslim brother shall receive the whole estate, while the Christian brother’s son does not inherit anything in his presence. If a Christian leaves Muslim descendants and Christian descendants, who are all of the same degree, the estate shall be divided between them; a Muslim child shall receive the same share as an unbeliever, and vice-versa.

Likewise, if [Christian] brothers and sisters and both [Muslim] paternal uncles and aunts and [Muslim] maternal uncles and aunts, who are of the same degree, are present, the estate shall be divided equally between them (fol. 26r). The principle is that the nearest among them debars the most remote, except a Muslim. As a matter of fact, a Muslim, however low, cannot be excluded from inheritance because of the presence of protected persons who are nearest [in relation to the deceased], but [rather] he inherits in their presence.

This is a summary for whoever wishes to speculate on this subject and follow its methodology. In this way, all that he needs shall be disclosed to him. As a matter of fact, all inheritance law is settled according to this pattern. Praise be to God and His blessings be upon His Messenger, our Lord, Muḥammad, the Faithful, and upon His noblest Family. Our plenitude is God, truly a defender, truly a patron, truly a protector. No power, no force, but in God, the Highest, the Sublime.

1. Kinship refers to blood relationship; legal title pertains to marriage ties and patronage; a contract of patronage entered into between two free people is comparable to the legal title, while the acknowledgement of an heir is comparable to the kinship.

2. That is, there does not exist a blood tie between the acknowledged heir and the acknowledging deceased person.

3. It is permissible for a person who is not able to manage himself to create a bond of patronage submitting himself to another person.

4. The question of proportional reduction was much debated among the earliest scholars because it modifies the Qurʾanic order of fixed shares. If the amount of shares to be attributed to the heirs is greater than the estate available, Sunnis, Zaydīs and Ibāḍīs have recourse to the proportional reduction of all the shares. On the contrary, Ẓāhirīs, Imāmīs and Ismailis believe that Qurʾanic shares cannot be reduced. If the amount of shares to be attributed to the heirs is greater than the estate available, only children and full and/or consanguine brothers and/or sisters must suffer a reduction of their shares.

5. In this case, they are excluded and the grandfather inherits the whole estate.

6. The term refers both to the written contract through which a slave is manumitted on payment of a sum and the amount specified in this contract for his emancipation.

7. For each degree, the share to be attributed to the heir is the quota fixed for his ascendant; moreover, the usual rule is followed, that is, each heir is treated according to his sex.