Qatada, Hammad, al-Zuhri, Malik, al-Thawri, Abu Hanifa, Muhammad, al-Shafi‘i, and the majority of jurists. This is because the son is the closest of the ‘asaba, and the father and grandfather inherit alongside him by virtue of a fixed share, and one entitled to a fixed share never inherits by wala’. Our evidence is that he is an agnate (asaba) heir, so he is entitled to wala’ just like the two brothers. We do not concede that the son is closer than the father; rather, they are equal in proximity, and both are agnates; neither excludes the other. They merely differ in status regarding inheritance, so it is the same for inheritance by wala’. For this reason, the father is given precedence over the son in guardianship (wilaya), leading the funeral prayer, and other matters. The ruling of the father with the son’s son, even if he is lower in descent, is identical to the ruling of the grandfather, even if he is higher in ascent, with the son and his son.

1063 - Issue: He said: (If he leaves behind the brother of his emancipator and the grandfather of his emancipator, the wala’ is divided between them equally.)

This is the opinion of ‘Ata’, al-Layth, and Yahya al-Ansari. Al-Awza‘i inclined toward it. It is also the opinion of al-Shafi‘i, al-Thawri, Abu Yusuf, and Muhammad. Those who treated the grandfather as a father considered the grandfather to be more entitled, and they allowed him to inherit alone. It is reported from Zayd that the property belongs to the brother. This is the opinion of Malik, and one opinion of al-Shafi‘i; because the brother is the son of the father, the grandfather is his father, and the son is more entitled than the father. Our evidence is that they are two agnates who inherit the wealth in halves, so the wala’ is divided between them in halves, like two brothers. If he leaves behind the grandfather of his mawla and the son of the brother of his mawla, the wealth belongs to his grandfather in the opinion of all of them, except for Malik, who assigned the inheritance to the son of the brother, even if he is lower in descent. Al-Shafi‘i also said this, because the son of the son, even if lower in descent, is given precedence over the father. This is not correct; the son of the brother is excluded from inheritance by the grandfather, so how could he be given precedence over him? Also, the grandfather is more entitled to the emancipator than the son of the brother, so he inherits from his mawla, according to the statement of the Prophet (peace and blessings of Allah be upon him): "The mawla is a brother in religion and a protector of grace. The person most entitled to the emancipator inherits from him." The evidence that the grandfather is more entitled is that he inherits from the son of his son to the exclusion of the brother's son, so he is more entitled, according to the statement of the Prophet (peace and blessings of Allah be upon him): "Assign the fixed shares to their owners, and whatever the fixed shares leave behind belongs to the most entitled male man." In another wording: "To the most entitled male agnate." Furthermore, the grandfather is a father, so he is given precedence over the brother’s son, just like the actual father. Furthermore, he is given precedence in the inheritance of wealth, so he is given precedence in the inheritance of wala’, like other agnates.