INTRODUCTION

 

According to the Shar'iah, one is entitled to make a will for one-third of one's property and not beyond that so that the rights of the legal heirs are not adversely affected.

" Again, the principle on which the legality of a testamentary disposition is based being in defeance pro tanto of the rights of heirs generally the law requires that such disposition should be for the benefit of non-heirs alone.

" A further reason why a bequest in favour of an heir is not allowed is that it would amount to giving preference to some heirs over others, thus defeating the spirit of the law which has fixed the portion of each in the inheritance and causing disputes among persons related to one another. If the other heirs consent to a bequest to one of them or to a bequest of more than one-third of the estate, the above reasons no longer hold good and the bequest as made will be valid" (Abdur Rahim, The Principles of Muhammadan jurisprudence, pp. 311-2).

It is, however, preferable and most advisable not to will away the property if the legal heirs are poor, because it manifests benevolence to the heirs who have superior claim to it from the relations in which they stand.

Another principle which is observed in case of bequest is that the proprietary right of a legatee in a bequest is establislied if he accepts it.

Ibn Umar (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) as saying: It is the duty of a Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it.

This hadith has been narrated on the authority of 'Ubaidullah with the same chain of transmitters. but with a slight variation of words.

A hadith like this have been narrated on the authority of Nifi', who based his narrations of the words of Ibn 'Umar but with a slight variation of words.

Salim reported on the authority of his father ('Abdullah b. Umar) that he (his father) had heard Allah's Messenger (may peace be upon him) as saying: It is not proper for a Muslim who has got something to bequeathe to spend even three nights without having his will written down with him regarding it. 'Abdullah b. 'Umar (Allah be pleased with them) said: Ever since I heard Allah's Messenger (may peace be upon him) say this I have not spent a night without having my will (written) along with me. This hadith has been narrated on the authority of Zuhri with the same chain of transmitters.

Amir b. Sa'd reported on the authority of his father (Sa'd b. Abi Waqqas): Allah's Messenger (may peace be upon him) visited me in my illness which brought me near death in the year of Hajjat-ul-Wada' (Farewell Pilgrimage). I said: Allah's Messenger, you can well see the pain with which I am afflicted and I am a man possessing wealth, and there is none to inherit me except only one daughter. Should I give two-thirds of my property as Sadaqa ? He said: No. I said: Should I give half (of my property) as Sadaqa? He said: No. He (further) said: Give one-third (in charity) and that is quite enough. To leave your heirs rich is better than to leave them poor, begging from people; that you would never incur an expense seeking therewith the pleasure of Allah, but you would be rewarded therefor, even for a morsel of food that you put in the mouth of your wife. I said: Allah's Messenger. would I survive my companions? He (the Holy Prophet) said: If you survive them, then do such a deed by means of which you seek the pleasure of Allah, but you would increase in your status (in religion) and prestige; you may survive so that people would benefit from you, and others would be harmed by you. (The Holy Prophet) further said: Allah, complete for my Companions their migration, and not cause them to turn back upon their heels. Sa'd b. Khaula is, however, unfortunate. Allah's Messenger (may peace be upon him) felt grief for him as he had died in Mecca.

This hadith is narrated on the authority of Zuhri with the same chain of transmitters.

'Amir b. Sa'd reported from S'ad (b. Abu Waqqas): Allah's Apostle (may peace be upon him) visited me to inquire after my health, the rest of the hadith is the same as transmitted on the authority of Zuhri, but lie did not make mention of the words of Allah's Apostle (may peace be upon him) in regard to Sa'd b. Khaula except this that he said: "He (the Holy Prophet) did not like death in the land from which lie had migrated."

Mus'ab b. Sa'd reported on the authority of his father. I was ailing. I sent message to Allah's Apostle (may peace be upon him) saying: Permit me to give away my property as I like. He refused. I (again) said: (Permit me) to give away half. He (again refused). I (again said): Then one-third. He (the Holy Prophet) observed silence after (I had asked permission to give away) one-third. He (the narrater) said: It was then that endowment of one-third became permissible.

This hadith has been narrated on the authority of Simak with the same chain of transmitters. But he did not mention: "It was then that one-third became permissible."

Ibn Sa'd reported his father as saying: Allah's Apostle (may peace be upon him) visited me during my illness. I said: I am willing away the whole of my property. He said: No. I said: Then half ? He said: No. I said: Should I will away one-third? He said: Yes, and even one-third is enough.

Humaid b. 'Abd al-Rahman al-Himyari reported from three of the sons of Sa'd all of whom reported from their father that Allah's Apostle (may peace be upon him) visited Sa'd as he was ill in Mecca. He (Sa'd) wept. He (the Holy Prophet) said : What makes you weep ? He said : I am afraid I may die in the land from where I migrated as Sa'd b. Khaula had died. Thereupon Allah's Apostle (may peace be upon him) said : O Allah, grant health to Sa'd. O Allah, grant health to Sad. He repeated it three times. He (Sa'd) said : Allah's Messenger, I own a large property and I have only one daughter as my inheritor. Should I not will away the whole of my property ? He (the Holy Prophet) said : No. He said: (Should I not will away,) two-thirds of the property ? he (the Holy Prophet) said: No. He (Sa'd) (again) said : (Should I not will away) half (of my property) ? He said : No. He (Sa'd) said: Then one-third ? Thereupon he (the Holy Prophet) said : (Yes), one-third, and one-third is quite substanial. And what you spend as charity from your property is Sadaqa and flour spending on your family is also Sadaqa, and what your wife eats from your property is also Sadaqa, and that you leave your heirs well off (or he said : prospreous) is better than to leave them (poor and) begging from people. He (the Holy Prophet) pointed this with his hands.

Humaid b. Abd al-Rahmin al-Himayri reported on the authority of the three of the sons of Sa'd : They said: Sa'd fell ill in Mecca. Allah's Messenger (may peace be upon him) visited him to inquire after his health. The rest of the hadith is the same.

Humaid b. Abd al-Rahman reported this hadith on the authority of three of Sa'd's sons: Sa'd fell ill in Mecca and Allah's Apostle (may peace be upon him) visited him. The rest of the hadith is the same.

Ibn 'Abbas (Allah be pleased with them) said: (I wish) if people would reduce from third to fourth (part for making a will of their property), for Allah's Messenger (may peace be upon him) said: So far as the third (part) is concerned it is quite substantial. In the hadith transmitted on the authority of Waki (the words are) "large" or "much".

Abu Huraira (Allah be pleased with him) reported that a person said to Allah's Apostle (may peace be upon him) : My father died and left behind property without making any will regarding it. Would he be relieved of the burden of his sing if I give sadaqa on his behalf ? He (the Holy Prophet) said: Yea.

A'isha (Allah be pleased with her) reported that a man said to Allah's Apostle (may peace be upon him) : My mother died all of a sudden, and I think if she (could have the opportunity) to speak she would have (made a will) regarding Sadaqa'. Will I be entitled to reward if I give charity on her behalf ? He (the Holy Prophet) said: Yes.

A'isha (Allah be pleased with her) reported that a man came to Allah's Apostle (may peace be upon him) and said: Allah's Messenger, my mother died all of a sudden without making any will. I think if (she could have the opportunity) to speak she would have made a Sadaqa. Would there be any reward for her if I give charity on her behalf ? He (the Holy Prophet) said: Yes.

This hadith has been narrated on the authority of Hisham b. 'Urwa with the same chain of transmitters.

Abu Huraira (Allah be pleased with him) reported Allah's Messenger (may peace be upon him) as saying: When a man dies, his acts come to an end, but three, recurring charity, or knowledge (by which people) benefit, or a pious son, who prays for him (for the deceased).

Ibn Umar reported: Umar acquired a land at Khaibar. He came to Allah's Apostle (may peace be upon him) and sought his advice in regard to it. He said: Allah's Messenger, I have acquired land in Khaibar. I have never acquired property more valuable for me than this, so what do you command me to do with it? Thereupon he (Allah's Apostle) said: If you like, you may keep the corpus intact and give its produce as Sadaqa. So 'Umar gave it as Sadaqa declaring that property must not be sold or inherited or given away as gift. And Umar devoted it to the poor, to the nearest kin, and to the emancipation of slaves, aired in the way of Allah and guests. There is no sin for one,who administers it if he eats something from it in a reasonable manner, or if he feeds his friends and does not hoard up goods (for himself). He (the narrator) said: I narrated this hadith to Muhammad, but as I reached the (words) "without hoarding (for himself) out of it." he (Muhammad' said: "without storing the property with a view to becoming rich." Ibn 'Aun said: He who read this book (pertaining to Waqf) informed me that in it (the words are) "without storing the property with a view to becoming rich."

This hadith has been narrated on the authority of Ibn 'Aun with the same chain of transmitters up to the words: "Or he may feed the friend withoiut hoarding from it" and he made no mention of what follows.

'Umar reported: I acquired land from the lands of Khaibar. I came to Allah's Messenger (may peace be upon him) and said: I have acquired a piece of land. Never have I acquired land more loved by me and more cherished by me than this. The rest of the hadith is the same, but he made no mention of this: "I narrated it to Muhammad" and what follows.

Talha b. Musarrif reported: I asked 'Abdullah b. Abu Aufa whether Allah's Messenger (may peace be upon him) had made any will (in regard to his property). He said: NO. I said: Then why has making of will been made necessary for the Muslims, or why were they commanded to make will? Thereupon he said: He made the will according to the Book of Allah, the Exalted and Majestic.

This hadith has been narrated on the authority of Malik b. Mighwal with the same chain of transmitters but with a slight variation of words. In the hadith related by Waki (the words are) "I said: How the people have been ordered about the will"; and in the hadith of Ibn Numair (the words are): "How the will has been prescribed for the Muslims,'.

A'isha reported: Allah's Messenger (may peace be upon him) left neither dinar nor dirham (wealth in the form of cash), nor goats (and sheep), nor camels. And he made no will about anything (in regard to his material possessions, as he had none),

This hadith has been narrated on the authority of A'mash with the same chain of transmitters.

Aswad b. Yazid reported: It was mentioned before A'isha that will had been made (by the Holy Prophet) in favour of 'Ali (as the Prophet's first caliph), whereupon she said: When did he make will in his favour? I had been providing support to him (to the Holy Prophet) with my chest (or with my lap). He asked for a tray, when he fell in my lap (relaxing his body), and I did not realise that he had breathed his last. When did he make any will in his ('Ali's) favour?

Sa'id b. Jubair reported that Ibn 'Abbas said: Thursday, (and then said): What is this Thursday? He then wept so much that his tears moistened the pebbles. I said: Ibn 'Abbas, what is (significant) about Thursday? He (Ibn 'Abbas) said: The illness of Allah's Messenger (may peace be upon him) took a serious turn (on this day), and he said: Come to me, so that I should write for you a document that you may not go astray after me. They (the Companions around him) disputed, and it is not meet to dispute in the presence of the Apostle. They said: How is lie (Allah's Apostle) ? Has he lost his consciousness? Try to learn from him (this point). He (the Holy Prophet) said: Leave me. I am better in the state (than the one in which you are engaged). I make a will about three things: Turn out the polytheists from the territory of Arabia; show hospitality to the (foreign) delegations as I used to show them hospitality. He (the narrator) said: He (Ibn Abbas) kept silent on the third point, or he (the narrator) said: But I forgot that.

Sa'id b. Jubair reported from Ibn Abbas that he said: Thursday, and what about Thursday? Then tears began to flow until I saw them on his cheeks as it they were the strings of pearls. He (the narrator) said that Allah's Messenger (may peace be upon him) said: Bring me a shoulder blade and ink-pot (or tablet and inkpot), so that I write for you a document (by following which) you would never go astray. They said: Allah's Messenger (may peace upon him) is in the state of unconsciousness.

Ibn Abbas reported: When Allah's Messenger (may peace be upon him) was about to leave this world, there were persons (around him) in his house, 'Umar b. al-Kbattab being one of them. Allah's Apostle (may peace be upon him) said: Come, I may write for you a document; you would not go astray after that. Thereupon Umar said: Verily Allah's Messenger (may peace be upon him) is deeply afflicted with pain. You have the Qur'an with you. The Book of Allah is sufficient for us. Those who were present in the house differed. Some of them said: Bring him (the writing material) so that Allah's Messenger (may peace be upon him) may write a document for you and you would never go astray after him And some among them said what 'Umar had (already) said. When they indulged in nonsense and began to dispute in the presence of Allah's Messenger (may peace be upon him), he said: Get up (and go away) 'Ubaidullah said: Ibn Abbas used to say: There was a heavy loss, indeed a heavy loss, that, due to their dispute and noise. Allah's Messenger (may peace be upon him) could not write (or dictate) the document for them.