The Shi'ah - the Divine Code of Living
- Inheritance ==============
After a person's death, the transfer of his or her property, or rights, to another person by virtue of their blood relationship or some other tie, is called inheritance.
The living relative is called the "warith" (heir), the deceased is called the "muruth" (one who bequeaths), and the right is called "irth" (inheritance). The relationship between a person born of another, or that of two persons who are born of a third, is called a blood relationship (nasab).
If the right of an heir is fixed in the Qur'an, he or she shall be counted in the category of those who receive inheritance as a matter of obligation, otherwise he or she shall be entitled to receive inheritance by virtue of blood relationship.
In the Holy Qur'an, the chief shares are six. The description of the shares and the inheritors is as follows:
The half-share (nisf): a) the husband, provided that the wife has no son. b) one daughter; here too the absence of a son is a condition. c) a sister; here also the same condition applies
The quarter-share (rub'):
a) the husband, when the deceased wife's son inherits. b) the wife, provided that the husband does not leave behind a son.
The eighth share (thamin): the wife, when the husband leaves a son.
The third-share (thulth). the mother, when there is no son; also some inheritors from the mother's side.
The two-thirds share: two daughters when there is no son.
The sixth-share (sudus): each of the father and the mother in the presence of a son; also an inheritor from the mother's side whether man or woman.
Those who are not included in the above settlements shall be inheritors on account of their blood relationship with the deceased, observing the rule that the share of the man is double that of the woman.
The heirs who are in a state of blood relationship with the deceased are divided into three groups:
(i) the mother, the father, sons, daughters (or failing these, their descendants).
(ii) grandfathers, grandmothers, brothers and sisters (or failing this, their descendants)
(iii) paternal uncles and aunts, maternal uncles and aunts (or failing this, their descendants)
The universal principle is that the presence of members of group (i) prevents members of group (ii) presents members of group (iii) inheriting. Thus, the one closer in blood-relationship acts as a barrier to the remoter, and this principle also holds within each group.
The only really significant difference between the Shi'ah and Sunni schools of jurisprudence in the laws of inheritance concerns the principles of " "awl" and "ta'sib" 3. The Imamiyah jurisprudents have proved by means of ahadith from the Ahlu'l-bayt (a.s.) that there is no 'awl or ta'isb in the matter of inheritance.
This was also the opinion held by the great companions of the Holy Prophet. The well-known statement of Ibn 'Abbas in which he speaks against 'awl and ta'sib can be taken as authoritative. There are also other grounds of proof for negating these two principles.
10. Endowments (waqf); Gifts (nibah) and Charities (sadaqah)
If someone owns some property and wishes to relinquish possession of it, his transference of it may be such that it is final. That is, now only will it go out of his possession, but he can never claim it back, whether, e.g., he frees a slave, or gives up possession of a house or some land to make it a place of worship, a mosque, or a place for use in pilgrimages. By such an act, the property can never again return to the ownership of that person again. In such a case, in fact, the item can never again be anyone's property.
On the other hand, the person may relinquish possession of some property which then passes into the hands of another. Such a transaction may be based on exchange or a monetary transaction, it may be part of a peace treaty, etc.
Thirdly, he may relinquish ownership without any exchange taking place, but solely with regard to the world to come and recompense therein. This is what is commonly known as "sadaqah", and this is in turn divided into two parts:
a) if the property is durable and the donor's intention is that it should last and any profits from it used in good acts, it will then be called an endowment (waqf);
b)if it is not durable or the donor has not stipulated any conditions for its being permanently kept and utilised, it will then be called sadaqah proper (charity).
Fourthly, if possession of some property is handed over to someone else without there taking place any exchange and without any thought of Divine recompense (e.g. for the sake of friendship), the donation is called hibah (gift). If, however, some exchange takes place, e.g. one man gives another his shirt on the condition that the second man gives a book to him, it is called " 'iwad" (a consideration). ,If the second party accepts, the gifting will become binding and neither party will have the right to take his property back, except if they both agree to break their agreement.
It is necessary that the something gifted must be in the possession of the donor. If the gifting was without any 'iwad, the item (s) may be taken back. Naturally, this does not apply to gifts given between close relatives or between husband and wife, or if the item(s) is (are) lost or damaged.
This contrasts with the situation in the case of sadaqah; for here, once possession has been relinquished, the thing(s) cannot be taken back. The declaration of intention to donate is enough to make the taking back unlawful. This is called the sighatu 'l-waqf, and the property then passes to the trustee, who may be the original owner himself. It may not be taken back, sold, divided, pawned, or otherwise pledged, whether it be a "waqf khass" (special endowment), for descendents, for example, or a "waqf 'amm" (general endowment), for the poor, the needy, a mosque or a school.
There are, of course, some occasions when exceptions can be made and the trust property can be sold. This may happen, for instance, if the property has become damaged, but the damage should be to an extent that prevents the property from being of any use. The waqf property can also be sold if there is serious fear of its being destroyed, in which case it should be such that no profit would accrue from it. The property can also be sold if there are acute differences among those who are in possession of it and there is danger of loss of life and property or loss of honour and respect.
In spite of all these conditions, no one can take the decision to sell the property or divide it. The decision rests entirely with the hakimu "sh-shar" (the mujtahid) The hakimu 'sh-shar" alone has the right to pass the necessary decree after assessing all the prevailing conditions. But it is a pity that in the matter of endowments, people have become extremely apathetic. They pay no attention to the limitations of the Divine Law. God is aware of all their intentions and actions.
This was a brief account of sadaqah as it is generally understood.