Upto this point, the text has described the shares of those competent to inherit, those who had the affinity of lineage and birth with the deceased. The present verse talks about some others who do have the competence but are not related by lineage. Instead, they are related by marriage. Details appear in the Commentary.
Commentary
The share of the husband and the wife
In this part of verse 12, the shares of the husband and the wife have been determined. The share of the husband has been mentioned first, perhaps to show its importance because after the death of the wife, the husband becomes part of some other family. If the wife dies at the home of her parents with her assets too being there, her people may avoid giving the share due to the husband. By describing the right of the husband first, the Holy Qur'an has possibly condemned this practice. To explain in details, it means that in case the deceased wife has left no child behind, the husband will get, after the payment of debt and execution of will, one-half of the total property left by the deceased. Out of the remaining half, other heirs, such as the parents of the deceased, her brothers and sisters, will get their shares according to rules set for them.
If the deceased wife has left children - one or two or more, whether male or female, either from the same husband, or from some previous husband, then, the present husband will get, after the payment of debt and execution of will, one-fourth of the total property left by the deceased woman. Shares from the remaining three-fourth will go to other heirs.
If it is the husband who dies leaving his wife behind and leaves no children, the wife will get, after the payment of debt and the execution of will, one-fourth of the total property left by the deceased. And if he has left a child - either from the present wife or from some other wife - she will get, after the settlement of debt and will, a one-eight share. And if the deceased husband had more than one wife, all alive at the time of his death, the attending details shall remain the same, however, the share prescribed for the 'wife' (i.e. 1/4 or 1/8) shall be divided equally between all the wives. In other words, every woman will not get a share of one-fourth and one-eighth. Instead, all wives will share the one-fourth or one-eight equally. Then, under both these conditions, the inheritance which remains after settling the share of the husband/ wife will be distributed among other heirs left by them.
Ruling
It must be ascertained before the' distribution of inheritance that the مہر mahr (dower) of the wife has been paid. If the deceased has not paid the mahr of his wife, this will be taken as debt, and will have to be paid first from the total property, like all other debts. The inheri-tance will be distributed only after that. It should be noted that the woman, after having received her mahr, shall go on to receive her fixed share in the inheritance as a competent inheritor. And in case, the property left by the deceased is not more than the value, of dower, and nothing remains after it is paid, the entire property will be given to the woman against her debt of mahr very much like other debts and, as a result, no heir will receive any share from the inheritance thus used up.
After having made a brief mention of rights of relations emerging from lineage and marriage, the text now introduces the injunction which covers the inheritance of a particular deceased who has left no children or parents, details of which appear below:
The inheritance of Kalalah
This latter part of verse 12 describes the injunction relating to the inheritance of Kalalah. There have been many definitions of Kalalah. Al-Qurtubi reports these in his Tafsir. According to the most well-known definition, 'A person who dies leaving no ascendants and descendants is Kalalah.'
` Allamah al-Alusi, the author of Ruh al-Ma'ani says that Kalalah is really a verbal noun used in the sense of Kalal' meaning 'to become exhausted' which denotes 'weakness'. The name Kalalah has been applied to every relationship other than that of father and son because that relationship is weak as compared to the relationship of father and son.
Moreover, the word, Kalalah has also been applied to the deceased who left no son or father to inherit, as well as to the inheritor who is neither the son nor the father of the deceased. The lexical derivation requires that the word, ذو dhu, should be deemed as understood though not expressed explicitly. Thus Kalalah will be taken in the sense of ذو Dhu Kalalah, meaning 'one having weak relation'. Later on, the word also came to be applied to the property left as inheritance by a deceased having no son and father.
In gist, if a person, man or woman, dies and leaves behind neither father nor grandfather nor children, but does leave a brother or sister from the same mother and different father, the brother will get 1/6 and, if there is none, the sister will get 1/6. However, if they are more than one (for example, there may be one brother and one sister, or two brothers and two sisters) then, they all will share one-third of the entire property of the deceased. Here, the male will not get twice that of the female. ` Allamah al-Qurtubi says: ولیس فی الفرایٔض موضع یکون فیہ الذَّکرُ و الاُنثیٰ سوآً اِلَّا فی میراث الاخوَّۃِ لِلاُم ط
The share of the brother and sister
Let it be clear that this verse refers to the share of Akhyafi brothers and sisters (i.e. from the same mother and different fathers; also referred to as half-brothers and half-sisters). Though, this restriction has not been mentioned in the present verse, but consensus holds it as creditable. The Qira'ah or rendition of Sayyidna Sa'd ibn Abi Waqqas ؓ in this verse is: وَلَهُ أَخٌ أَوْ أُخْتٌ من اُمِّہ (and he has a brother or sister from his mother) as has been reported by al-Qurtubi, al-Alusi, al-Jassas and others. Although this rendition has not come to us through تواتُر tawatur (a consistent narration of a very large number of persons in all ages) but because of the consensus of the entire Muslim ummah, it is worth practicing. Another clear proof is that Allah Almighty mentions the inheritance of Kalalah at the end of Surah Al-Nis-a' as well. If, it has been said there, there is one sister, she will get half. And if there is one brother, he will inherit the entire property of his sister. And if there are two sisters, they will get 2/3. And if there are several brothers and sisters, the male will be given twice that of the female. This injunction appearing at the end of the Surah refers to Aini (real and full) brothers and sisters, and to Allati (from the same father and different mothers) brothers and sisters. If ` Allati and ` Aini' brothers and sisters were to be included here, it will cause a contradiction in injunctions.
The issues regarding wi11 (Wasiyyah)
The shares of inheritance have been described thrice in this section and it has been said that this distribution of shares comes after the execution of will and the payment of debt. As it has been stated earlier, one-third of what remains of the property, after taking care of the cost of the funeral for the deceased, and payment of debts, shall be applied to the execution of the will. If the will exceeds the extent of one-third, it is not legally enforceable. According to the rule of Shari'ah, the payment of debt comes before the execution of will. If the entire property is used up in paying debts, there will be no will to execute and no property to distribute. At all the three places where 'will' has been mentioned, 'it' appears before 'debt'. As obvious, this gives the impression that the right of 'will' precedes 'debt'. Removing this misunderstanding, Sayyidna ؓ said:
انکم تقرأؤن ھذہ الایۃ مِن بعد وصیَّۃ ۔ مِّن بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ (مشکوٰۃ بحوالہ ترمذی ص 264)
(You recite the verse: مِن بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ settling the will they might have made, or debt' [ where 'will' comes first ] but [ practically ] the Holy Prophet ﷺ ، may peace be upon him, has settled, 'debt' before 'will' ).
Still, we have to know the point as to why will follows debt 'practically' while, in words, it has been mentioned earlier. In this connection, the author of Ruh al-Ma'ani has this to say: و تقدیم الوصیہ علی الدین ذکراً مع ان الدین مقدم علیھا حکما لاظھار کمال العنایہ بتنفیذھا لکونھا مظنۃ للتفریط فی ادایٔھا الخ۔
It means that the mention of will before debt in this verse is to emphasize upon the enforcement of the wills. Since the beneficiary of a will deserves it without any price paid by him, and often without having a kinship with the testator, it was likely that the inheritors ignore to enforce it or, at least, may cause unnecessary delay in its execution, because they may have not liked to see the property that was to be inherited by them, going to somebody else. So, it was to keep up the importance of will that it was mentioned before debt. Then, it is also not necessary that every person incurs a debt, and if a person incurs it during his lifetime, it is not necessary, that the said debt remains unpaid upto the time of his death. And even if the debt was due to be paid at the time of death, even then, since the claim of debt comes from the debtors to which the inheritors cannot say no, the likelihood of any shortcoming in this respect is slim. This is contrary to the case of will in which the deceased, when he bequeaths part of his property, earnestly desires that he should invest it in something good which serves as ongoing charity on his behalf. Since, there is no chance of a claim on this bequeathed property from any side, there was a possibility that the inheritors themselves might fall. into some sort of shortcoming, so, it was to offset this likelihood that the 'will' has been mentioned first everywhere as a special measure.
Rulings
1. If there is no debt and no will, the entire property, after taking care of the funeral expenses, will be distributed over the inheritors.
Making a will in favour of a heir is not lawful. If someone makes a will in favour of his son, daughter, husband or wife, or for someone else who is going to get a share in his inheritance, then, this will is not enforceable. The inheritors will get what is coming to them as their share in the inheritance. They are not entitled to more than that. The Holy Prophet ﷺ said in his famous address on the occasion of his last Hajj:
اِنَ اللہ قد اَعطٰی کُل ذِی حَقِّ حَقَّہ فلا وصیَّۃ لِوارث۔ ‘(مشکٰوۃ بحوالہ ابوداؤد ص 265)
(Surely, Allah has given every person his (or her) right. So,
there is no will for an inheritor.) (Mishkat with reference to Abu
Dawud, p. 265)
However, should other inheritors permit, the will made in favour of a particular inheritor, may be executed first and, then, the rest of the property. may be distributed in accordance with the method laid down by the Shari'ah, in which the particular inheritor will also get his fixed share from the inheritance. So Shari'ah me hadith narrations do carry the exception of اِلَّا ان یشآء الوَرَثۃ (unless inheritors wish). (as in al-Hidayah)
The words غَيْرَ مُضَارٍّ (causing no damage) appearing after the rules of inheritence of Kalalah have a special significance. They are to warn that even though the execution of the will and paying off the debts have precedence over the shares of the heirs, yet this rule should not be misused to cause harm to the genuine inheritors.
If anyone makes a will or makes a false admission of indebtedness so as to deprive inheritors, then, he is doing something strictly forbidden and is committing a major sin.
There are many ways damage can be done through debt and will. For example, one may deliberately lie that he is in debt, just to let that be given to a friend or somebody else. Or, he may show something special which he owns personally as something he holds in trust for somebody so that it can stay out of the total inheritable property. Or, one may make a will for property beyond the extent of one-third. Or, he lies about an unpaid loan he gave to somebody and says that the debt was paid off so that it does not pass on to the inheritors. Or, one may, during his illness culminating in death (مرضَ الموت ), make a gift of more than one-third in the name of somebody.
These are forms of causing damage. Every legator who is going to bid farewell to this mortal world should do his best to stay away from causing such damages during the last moments of his life.
It should be noticed that although the words 'causing no damage' have appeared only with the rules relating to Kalalah, however, the rule laid down by them is general and is also understood at two previous places where the precedence of will and debt has been mentioned in these verses. Therefore, it is not the Kalalah only who should refrain from causing harm to his inheritors, but the same rule applies to all persons who wish to make a will.
The emphasis on distribution according to fixed shares
Towards the end of the verse, after the shares of inheritance have been described, Allah Almighty has said: وَصِيَّةً مِّنَ اللَّـهِ (All this is prescribed by Allah). It means that it is imperative to act upon what-ever has been prescribed in relation to shares as fixed and the payment of debt and the execution of will as emphasized. Being a mandate and injunction of supreme significance, one should do nothing to contravene it. Then, as additional warning it was said: وَاللَّـهُ عَلِيمٌ حَلِيمٌ (And Allah is All-Knowing, Forbearing). It means that Allah knows everything and He has apportioned these shares knowing everybody's true state of being as in His knowledge. Whoever obeys and acts in accordance with these injunctions, this good deed of his shall not remain outside the reach of His knowledge. And whoever contravenes these injunctions, this evil conduct of his shall certainly appear as it is in the knowledge of Allah for which he shall be held accountable.
In addition to that, if a deceased person has caused damage to his heirs through debt or will, Allah knows that as well. So, one should never be fearless from Allah's punishment. However, it is quite possible that Allah Almighty may not punish a person right here in this mortal world, because He is Forbearing. But, the one who disobeys and acts in contravention should better not deceive himself by thinking that he really got away.