The origion of 'Awl in inheritance law Fatwa No: 222526
- Fatwa Date:2-10-2013
Assalamu Alaykum, Scholars apply concept of Awl when the total inheritance shares shoots up more than what is available. Is there any Marfoo' ahadith which says that the Prophet(pbuh) applied the doctrine of Awl. Why Allah mentioned shares in the Quran in such a way that in many cases, when we add up becomes greater than what is available?. Please explain.
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger. There is no Hadeeth reported from the Prophet, sallallaahu ‘alayhi wa sallam, that indicates that he, sallallaahu ‘alayhi wa sallam, applied ‘Awl (which means that the shares of inheritors exceed the whole of the inheritance) regarding the issues of inheritance. However, he sallallaahu ‘alayhi wa sallam, urged us to act according to the Sunnah (way) of the rightly-guided caliphs and stated that that Sunnah and the consensus of scholars are sources of legislation, saying: "You must follow my Sunnah and that of the rightly-guided caliphs. Abide by it and hold on tight to it [as if] with your molar teeth..." [Abu Daawood, At-Tirmithi, Al-Haakim who graded it Saheeh (sound), and Ath-Thahabi and Al-Albaani agreed with him] He, sallallaahu ‘alayhi wa sallam, also said: "Allaah will not cause my Ummah (or he said: the Ummah of Muhammad) to agree on misguidance; and the Hand of Allaah is with the Jamaa’ah (the group which follows the Quran and authentic Sunnah); and whoever deviates from that will be in Hell." [At-Tirmithi] The Prophet, sallallaahu ‘alayhi wa sallam, also said: "I asked my Lord for four things and He gave me three and refused to give me the fourth. I asked my Lord not to let my nation agree on misguidance and He gave me that......" [Ahmad narrated it as Marfoo‘, i.e. traceable to the Prophet ] ‘Awl was applied by the rightly-guided caliph ‘Umar and the Companions during his time agreed with that. However, Ibn ‘Abbaas held another opinion after the death of ‘Umar, an opinion that has become nearly obsolete. Ibn Qudaamah said in Al-Mughni: "The opinion of applying ‘Awl has been adopted by all Muslim scholars except Ibn ‘Abbaas and a small group that held another opinion... We do not know at the present time anyone who adopts the opinion of Ibn ‘Abbaas. We do not know of any disagreement among the jurists of the Islamic states regarding applying ‘Awl. All perfect praise be to Allaah." The cause of ‘Awl presented itself during the time of the rightly-guided caliph ‘Umar ibn Al-Khattaab . It was stated in the Al-Mawsoo‘ah Al-Fiqhiyyah: "The first case of ‘Awl was for a woman who died and left behind a husband and two sisters. This occurred during the beginning of the caliphate of ‘Umar. He consulted the Companions and said: "By Allaah, I do not know which of you comes first and which comes next. If I start with the husband and give him his right in full, the two sisters will not take their right in full; and if I start with the two sisters and give them their right in full, the husband will not take his right in full." According to the most recognized accounts, Al-‘Abbaas ibn ‘Abdul Muttalib suggested that he could apply ‘Awl. Other accounts have it that it was ‘Ali ibn Abi Taalib or Zayd ibn Thaabit. It was narrated that Al-‘Abbaas said: "O Leader of the Believers, tell me: If a man passed away and left six dirhams, and he owed three dirhams to one man and four to another, what would you do? Would you not make the wealth into seven parts?" He said, "Yes." Upon this, Al-‘Abbaas said: "It is the same thing." Thus, ‘Umar applied the principle of ‘Awl." This is indeed justice because if the deceased is in debt to some persons and leaves wealth that cannot pay off his debt, it will not be fair to give some of them while depriving the others. Rather, what justice dictates is to decrease the share of each. Thus, someone who is entitled to one third of the total debt should take one-third of the existing assets, and someone who is entitled to one-sixth should take one-sixth of the existing assets, and so on.
Ibn Al-Qayyim said in I‘laam Al-Muwaqqi‘een: "The Companions applied ‘Awl in inheritance and applied decrease to all heirs by drawing analogy from the decrease applied to the shares of creditors in case where the total assets of a bankrupt person cannot pay off all entitlements. Moreover, the Prophet, sallallaahu ‘alayhi wa sallam, said to creditors: 'Take what you find and that is all that you are entitled to.' This is pure justice, while exclusively depriving some creditors and giving some of them their full share is not just."
Indeed, the principle of ‘Awl reflects the beauty of Islam in terms of its justice in matters and its suitability for dealing with new developments.
Allaah Knows best.