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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 424

Translation · EN

with a share of his wealth, he is given (6) a share from the inheritance distribution [faridah]. It was said to him: Is it the portion of a man or the portion of a woman? He said: The smallest of the shares. Al-Qadi said: Provided it does not exceed a sixth. This is the opinion of Abu Hanifah. His two companions [Abu Yusuf and al-Shaybani] said: Unless it exceeds a third, in which case he receives a third. The basis for this view is that the shares of the heirs are their portions, so he receives the least of them, as that is certain. If it exceeds a sixth, he is given a sixth, because that is the smallest share inherited by a relative. Abu Thawr said: He is given a share out of twenty-four, because that is the largest of the denominators of inheritance distributions, so a share of it is the smallest of shares. Al-Shafi'i and Ibn al-Mundhir said: The heirs give him whatever they wish, because the term "share" applies to it, similar to if he had bequeathed a "portion" [juz'] or "allotment" [hazz]. 'Ata' and 'Ikrimah said: He gets nothing. Our view is based on what Ibn Mas'ud narrated: that a man bequeathed a share of his wealth to a man, and the Prophet (may Allah bless him and grant him peace) gave him a sixth (7). Furthermore, "share" in the language of the Arabs means a sixth. Iyas ibn Mu'awiyah said: "The share in the language of the Arabs is a sixth." Thus, the bequest is directed toward it, just as if he had articulated it. Also, because it is the opinion of 'Ali and Ibn Mas'ud, and there is no dissenter among the Companions regarding it, and because a sixth is the smallest prescribed share inherited by a relative, so the bequest is directed toward it. Once this is established, the sixth to which the legatee is entitled is treated as a prescribed sixth. If the inheritance distribution is complete, it is augmented by it [i.e., through 'awl], and if it is already prone to 'awl, its 'awl increases by it. If there is a return [radd] in it, or if they are residuary heirs ['asabah], he is given a full sixth. Ahmad said, in the narration of Ibn Mansur and Harb: If a man bequeaths a share of his wealth, he is given a sixth, unless the inheritance distribution undergoes 'awl, in which case he is given a share consistent with the 'awl. It is as if the meaning of the bequest is: "I have bequeathed to you the share of one who inherits a sixth." If he had bequeathed to him a share in a problem containing a husband...

Notes

(5) Omitted from A. (6) In A: "is given". (7) Narrated by Ibn Abi Shaybah in: "Chapter on those who disliked that one bequeaths like the share of someone..." from the Book of Bequests. Al-Musannaf 11/171. Al-Haythami also cited it in: "Chapter on those who bequeath a share of their wealth" from the Book of Bequests. Majma' al-Zawa'id 4/213, and he attributed it to al-Tabarani in al-Awsat.

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