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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 14 · صفحة 327

الترجمة · EN

for me and my son, then my son died, so his inheritance became mine." And her brother says: "Her son died first, so she inherited one-third of his wealth, then she died, so her inheritance was divided between me and you in halves." Each of them shall take an oath to invalidate the claim of the other, and we assign the inheritance of each of them to their respective living heirs, excluding those who died with them; because the cause of the living person's entitlement from the deceased is present, and it is only prevented by the remaining of the other deceased person after them, and this is a matter that is in doubt. Therefore, we do not depart from certainty due to doubt. Thus, the inheritance of the son belongs to his father, with no one sharing it with him, and the inheritance of the woman is divided in halves between her brother and her husband. This is the school of thought of Al-Shafi'i. If it is said: "You have given the husband the half, yet he only claims the quarter," we say: "Rather, he is a claimant for all of it; a quarter of it by his inheritance from her, and three-quarters by his inheritance from his son." Abu Bakr said: "The filiation is established with certainty, so the father's inheritance from him is not to be severed except by evidence presented by the brother." This is a reasoning for the statement of Al-Khiraqi in this issue. He mentioned another opinion: that it is possible that the inheritance is between them in halves. He said: "This is my choice, that if any two men claim something regarding which it is impossible for both to be truthful, it is between them in halves." It is not known what he intended by this. If he intended that the woman's wealth is between them in halves, then that is the statement of Al-Khiraqi, and it is not a different opinion. If he intended that her wealth and the son's wealth are between them in halves, it is not valid; because it leads to giving the brother wealth he does not claim and is not entitled to by certainty; because he does not claim more than one-sixth of the son's wealth, and it is not possible for him to be entitled to more than that. If he intended that one-third of the son's wealth is added to the woman's wealth, and they divide it in halves, it is not valid; because half of that belongs to the husband by their agreement, and the brother does not dispute him regarding it, and the dispute is only between them regarding the other half. It is possible that this is what he intended, just as if two men disputed over a house in their possession, and one of them claimed it all, and the other claimed half of it, then it is divided between them in halves, and the oath is upon the claimant of the half, except that the difference between this issue and that is that the house is in their possession, so each of them has half of it in his possession, so the claimant of the half claims it while it is in his possession, so his statement is accepted regarding it along with his oath, whereas in our issue

الحواشي

(1) In B: "remaining". (2) In M: "half of the woman's inheritance". (3) In B: "or wealth". (4) In M there is an addition: "as if the brother disputed it, and the dispute between them is hidden". (5) In B, M: "it is".

السابقمجلد 14 · صفحة 327التالي
السابق14·327التالي