Special cases

a) ‘Umariyyataini (the two ‘Umar cases)

Supposing a deceased is survived by his parents (mother and father) only, how will his estate be distributed among them?

HeirsMotherFather
Shares1/3Residue
Base number3
Portions12

This shows that father inherits twice the share of mother in the absence of children or any descendant through son. Now consider the following:

Case 1: A man dies leaving behind a wife, mother and father

HeirsWifeMotherFather
Shares¼1/3Residue
Base number12
Portions345

Case 2: A woman is survived by her husband, mother and father

HeirsHusbandMotherFather
Shares½1/3Residue
Base number6
Portions321

Observe that in Case 1, the number of portions of mother is almost the same with that of the father; while in Case 2, her number of portions doubles his. Though the distributions are correct, they violate the principle that father gets twice the share or number of portions of mother in the absence of children or descendants through son. These pair of problems arose during the Caliphate of ‘Umar. That is why they are symbolically referred to as ‘Umariyyataini.

The resolution was that instead of giving mother 1/3 of the estate, she should be given 1/3 OF THE RESIDUE so as to maintain the ratio of 2 to 1 between father and mother. Therefore, Case 1 becomes

HeirsWifeMotherFather
Shares¼Residue
Base number4
Portions112

Residue = 4 – 1 = 3
Mother inherits 3 × 1/3 = 1 portion
Father is given 4 – (1 + 1) = 2 portions

Similarly, Case 2 can be resolved as follows

HeirsHusbandMotherFather
Shares½Residue
Base number2
Portions11
New base number6
New portions312

Residue = 6 – 3 = 3
New portion of mother: 3 × 1/3 = 1
New portion of father: 6 – (3 + 1) = 2

Recall that in the absence of a son, the grandson takes his place and inherits all his rights and privileges. Likewise, in the absence of father, grandfather replaces him but does not inherit all his privileges according to the more popular view of scholars. As stated earlier, this is because father excludes full and consanguine siblings but grandfather cannot exclude them. ‘Umariyyataini is another. Unlike father, grandfather does not have the “power” to relegate mother from 1/3 of the estate to 1/3 of the residue.  Therefore, if grandfather were to take the place of father in Cases 1 and 2, he will be given 5 and 1 portions respectively. Adjustments shall not be made.

b) Mushtarika (Partnership)

Problem: A lady leaves behind her husband, mother, two uterine brothers and a full brother. How will her estate be distributed?

Solution:

HeirsHusbandMother2 Uterine brothersFull brother
Shares½1/61/3Residue
Base number6
Portions3120

This also arose during the time of ‘Umar. Despite that the distribution was correct; full brother protested on the ground that he was more related to the deceased than the uterine brothers since he has the same father and mother with her whereas uterine brothers have the same mother with her only. As a result, it is not fair for the uterines to be entitled to a portion of the estate while he is being left out. ‘Umar reasoned with him and instructed that he shares 1/3 along with uterine brothers in equal proportion. The final table then becomes

HeirsHusbandMother2 Uterine brothersFull brother
Shares½1/61/3Residue
Base number6
Portions3120
New base number3 x 6 = 18
New portions93Each brother = 2

Imams Malik and As-Shafi’i supported this verdict though Ahmad ibn Hambal and Abu Hanifa opposed it for the fact that full brother is a residuary who by definition inherits the whole estate when alone or takes the residue, and if nothing is left (as in this problem), he goes empty handed.

Whereas the two ‘Umar cases are “heir-specific” i.e. applicable when the heirs are wife, mother and father ONLY or husband, mother and father ONLY, partnership is also applicable when the following are present:

  1. More than two uterine brothers, two or more uterine sisters or a combination of uterine brother(s) and sisters(s) because they all inherit 1/3 of the estate.
  2. More than one full brother or a combination of full brother(s) and full sister(s) since they are equally entitled to residue.

Mushtarika does not apply if the heirs comprises of:

  1. One uterine brother or sister given that he/she gets 1/6 of the estate and this will distort the problem.
  2. One or more full sisters ONLY. The reason is that they have fixed shares.
  3. One or more consanguine brother(s) or sister(s). Though they are also residuaries, but are related to the deceased through the father only.
c) Al-Akdariyya (Troublesome)

Problem: A woman is survived by her husband, mother, grandfather and full sister. (Consanguine sister may replace a full sister and the rule of Akdariyya will still be valid).

Solution:
Since grandfather is involved, the three options have to be considered.

a) 1/6 of the estate

HeirsHusbandMotherGrandfatherFull sister
Shares½1/31/6½
Base number6
Portions3213
Increased base number9
Values3/9 = 0.330.220.110.33

b) 1/3 of residue

HeirsHusbandMotherGrandfatherFull sister
Shares½1/3Residue
Base number6
Portions321
New base number3 x 6 = 18
New portions9612
values0.50.330.060.11

c) Muqasama

HeirsHusbandMotherGrandfatherFull sister
Shares½1/3Residue
Base number6
Portions321
New base number18
New portions9621
Values0.50.330.110.06

Grandfather acts as a full brother, so he takes twice the portion of full sister. Thus, he inherits 2 portions out of the 3 residues, while full sister is given 1.

Conclusion: Grandfather may inherit either 1/6 of the estate or by muqasama.

A closer look at the two options will reveal that in muqasama, grandfather (acting as a full brother) gets twice the portion of full sister. That is alright. But if he decides to take 1/6 of the estate, full sister’s portion is not only double but three times his portion. That is one way of looking at it. The second is that if the shares of husband, mother and grandfather are added together, the estate gets exhausted and full sister receives nothing. That is,

½ (0.5) + 1/3 (0.33) + 1/6 (0.17) = 1.

This is also not acceptable according to most Jurists because full sister cannot be excluded by husband, mother or grandfather. For this reason, the problem is referred to as “troublesome.”

The resolution is that grandfather should agree to 1/6 of the estate but then, his portion and that of full sister will be added and redistributed among them in a ratio of 2 to 1. Thus,

Number of portion of grandfather and full sister = 1 + 3 = 4
Grandfather and full sister cannot share 4 portions.
Their number of heads, 3, and number of portions, 4, are tabayin. Therefore,

New base number = 3 × 9 (increased base number) = 27
New share of husband = 3/9
New share of mother = 2/9
New share of grandfather = 1/9
New share of full sister = 3/9
New portion of husband: 27 × 3/9 = 9
New portion of mother: 27 × 2/9 = 6
New portion of grandfather: 27 × 1/9 = 3
New portion of full sister: 27 × 3/9 = 9
Now, add new portions of grandfather and full sister: 3 + 9 = 12. Grandfather gets twice the portion of full sister. 12 is divided by 3. He takes 2 parts while she is given remaining 1 part. Mathematically,

Newest portion of grandfather: 12 × 2/3 = 8
Newest portion of full sister: 12 × 1/3 = 4

HeirsHusbandMotherGrandfatherFull sister
Shares½1/31/6½
Base number6
Portions3213
Increased base number9
New base number27
New shares3/92/91/93/9
New portions9639
Newest portions9684
Values9/27 = 0.330.220.300.15

Observe that we deviated from the principle that number of heads should be multiplied by the lowest base number in order to generate a new base number. This is because there was an increase in the base number (‘awl), so number of heads is multiplied by the increment. Also, note that the value of grandfather’s portion is greater than what he should have received through muqasama. This was how the problem was solved by Zaid ibn Thabit, the most knowledgeable companion of the Holy Prophet (SAW) in the Science of Inheritance. May Allah be pleased with them all. Ameen.


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