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المغني لابن قدامة - ت التركي
مجلد 8 · صفحة 526

الترجمة · EN

If the heirs do not approve that, then the one to whom he bequeathed one-third receives one-sixth of the two hundred and one-sixth of the slave; because his bequest covers the entire estate. And the one to whom he bequeathed the slave receives one-half of him; because his bequest covers the slave.

In summary: if he bequeaths to a man a specific item of his property, and to another a fractional share of it—such as one-third of the property and one-fourth of it—and [the heirs] approve it for both, the owner of the fractional share is singled out for his bequest from the non-specific property, then he shares with the owner of the specific property in it. They divide it between them in proportion to their respective rights in it, and the reduction affects each one of them according to the amount of his share in the bequest, just like in the issues of 'awl (proportional reduction), and as if he had bequeathed his property to one man and a share of it to another. As for in the case of rejection: if their bequests do not exceed one-third, such as if he bequeaths to a man one-sixth of his property, and to another a specific item worth one-sixth of the property, it is the same as the case of approval, for the rejection has no effect. But if it exceeds one-third, we reduce their bequests to one-third, and divide it between them according to the proportion of their bequests, except that the owner of the specific item takes his share from the specific item, and the other takes his right from the entire estate. This is the opinion of al-Khiraqi and the rest of the companions. It is stronger in my view that they, in the case of rejection, divide the one-third according to what they have in the case of approval. This is the opinion of Ibn Abi Layla. Abu Hanifa and Malik said regarding rejection: The owner of the specific item takes his share from it, and the other adds his portions to the portions of the heirs, and they divide the remainder by five, in the example of al-Khiraqi's issue; because he has one-sixth, and the heirs have four-sixths. This is the same as al-Khiraqi's opinion, except that al-Khiraqi gives him the one-sixth from the entire estate, while according to them, he takes one-fifth of the two hundred and one-tenth of the slave. They agreed that each of the two legatees returns to one-half of his bequest; because each of them had been bequeathed one-third of the property, and the two bequests returned to one-third, which is half of the two bequests; thus each returns to one-half of his bequest, and the reduction affects each one of them according to the amount of his share in the bequest.

الحواشي

(2) In the original and (A): "jāwaza". (3) In (A) and (M): the word "huwa" is added.

السابقمجلد 8 · صفحة 526التالي
السابق8·526التالي