When Multiple `Asabaat Categories Remain After Applying the Rules of Hujub Hirmaan (Total Exclusion)
Take a look at the posts Solving Problems With Only `Asabaat Inheriting and Solving Problems With a Combination of Zaawil Furoodh and `Asabaat Inheriting. Notice that there is never more than one `asabaat category that ends up inheriting. There may be multiple zaawil furoodh categories inheriting, but there is only ever a single `asabaat category inheriting.
In the scenarios in those two posts, only a single residuary category inherits because it was either (1) the only `asabaat category present, so obviously it was the only one that inherited, or (2) it excluded all other `asabaat categories that were present so it ended up being the only one eligible to inherit.
However, there are certain cases in which even after applying the rules of hujub hirmaan (total exclusion) there are two or more `asabaat categories that remain.
So what happens then? Do the multiple`asabaat categories share the residue equally? The answer to that is no. Only one residuary category can inherit. This is one of the principles of inheritance. If there is residue and there are`asabaat (residuaries) eligible to inherit, then all of the residue will go to a single category of these residuaries. Two or more categories of residuaries cannot share the residue.
The simple principle we apply when more than one `asabaat category remains even after applying the rules of exclusion is the following: Choose the `asabaat category that is closest to the mayyit (deceased) in relation, and all residue goes to that category. All other `asabaat categories are deprived.
Lets take a look at a couple of examples insha’Allah.
Example 1: A woman dies leaving behind
- 2 Daughters
- 1 Haqeeqi sister
- 3 Allaati sisters
- 2 Haqeeqi nephews (sons of late haqeeqi brother)
If we apply the rules of exclusion, we realize that no one is excluded.
We know the Husband gets 1/4
We know the 2 Daughters get 2/3
The rest are all `asabaat. Remember, a daughter or granddaughter turns haqeeqi and allaati sisters into `asabaat.
As explained above, even though three categories of residuaries are present and “un-excluded”, only one of them will inherit. The category that will get the residue is the one that is closest to the mayyit in relation, which in this case is the haqeeqi sister.
The rest are all deprived.
Hence, our chart below:
The Husband gets 3 portions.
Each Daughter gets 4 portions.
The Haqeeqi sister gets 1 portion.
Before moving on, lets study this problem a bit more. But before that, Insha’Allah, please review Rule #9 in the post Rules of Hujub Hirmaan (Total Exclusion) in case you haven’t already memorized it (and you should have by now). It may help you in understanding the explanations below.
Note that the same thing would have applied if the allaati brothers were present along with the allaati sisters. In fact, even if the allaati sisters were replaced by only allaati brothers, the same would apply; the haqeeqi sister would still get the residue as she would still be the closest relative to the mayyit. In this case however, the haqeeqi nephews would be excluded (which doesn’t really matter, as they are deprived in the original case anyway).
In fact, if you were to add in all of the `asabaat relatives (except for haqeeqi brother, son, grandson, father or paternal grandfather), the haqeeqi sister would still get all of the residue. This is because the allaati brother would exclude all other `asabaat, and the only two `asabaat categories that would remain “un-excluded” would be the haqeeqi sister and allaati siblings. The haqeeqi sister is closer to the mayyit, hence she would get all of the residue.
If only the haqeeqi brother was present along with the haqeeqi sister, he would simply exclude the allaati sisters and nephew. Thus, there would be no need to “choose” the closest `asabaat category, as the haqeeqi siblings would be the only residuary category left to inherit. Same would apply if along with the haqeeqi brother, all other `asabaat (except for son, grandson, father or paternal grandfather) were present; haqeeqi brother would simply exclude all of them, leaving the haqeeqi siblings as the only residuary category to inherit.
Example 2: A man dies leaving behind
- 3 Granddaughters
- 2 Allaati sisters
- 1 Haqeeqi paternal uncle
- 1 Allaati paternal uncle
The allaati paternal uncle is the only one excluded.
This time there are two `asabaat categories remaining: The allaati sisters (made into residuaries by the granddaughters) and the haqeeqi paternal uncle.
The Mother gets 1/6
The 3 granddaughters share 2/3
Since the allaati sisters are closer in relation to the mayyit then the uncle, they will inherit all of the residue.
Final Answer: The estate will be divided into 36 equal portions:
The Mother will get 6 portions.
Each Granddaughter will get 8 portions.
Each Allaati sister will get 3 portions.
Lets delve into this problem a bit more, as we did with the first.
If allaati brothers were present along with the allaati sisters, the allaati brother would have simply excluded the uncle. This would leave only the allaati siblings as residuaries, and so they would automatically get all of the residue, no need to choose the closest category. If we were to replace the allaati sisters with allaati brothers, the allaati brothers would have gotten all the residue, as they would have excluded the uncle.
If a haqeeqi sister was present, she would be the closest in relation to the mayyit, and hence she would get all of the residue.
If we were to add in all of the `asbaat relatives (except for the haqeeqi brother, allaati brother, son, grandson, father or paternal grandfather) the allaati sister would still get the residue as she would still be the closest to the mayyit. Now if we were to add in an allaati brother, the allati siblings together would inherit the residue, as the allaati brother would exclude all other `asabaat.
If you’ve been paying attention, you’ll notice that the only time multiple `asabaat categories can remain even after applying rules of exclusion (and thus, the only time you’ll have to apply the principle of choosing the `asabaat category closest to the mayyit) is when:
- A daughter/granddaughter inherits with a combination of 1 haqeeqi sister and 2 or more allaati sisters, (without their male siblings present) or;
- A daughter/granddaughter inherits with either a haqeeqi sister or an allaati sister (without the male sibling present).
If either (1) or (2) is true, multiple `asabaat categories may remain “un-excluded” and thus the principle of choosing the category closest to the mayyit will habve to be applied.
In the first case, multiple `asabaat categories will definitely remain as both the haqeeqi sister and allaati sister(s) will inherit as `asabaat. In the second case, the haqeeqi or allaati sister may be the only residuary, in which case she will obviously receive all of the residue. However, there may be other residuaries present who are not excluded, such as uncles or nephews, in which case the haqeeqi or allaati sister will still inherit all of the residue as she is the closest to the mayyit.
In the first case, if there is more than 1 haqeeqi sister, the allaati sister(s) will simply be excluded because 2 or more haqeeqi sisters exclude strictly allaati sisters.
The reason why the rule of “choosing the `asabaat category closest to the mayyit” applies only in the above two cases is because the haqeeqi sisters and allaati sisters do not exclude any of the other `asabaat (who are all males). So whenever they are present along with other `asabaat who are not excluded, you will have to apply this principle. In all cases where this principle is applied, either the haqeeqi sister or allaati sister will end up inheriting all the residue.
Remember, the question of multiple `asabaat categories remaining does not even arise when a son, grandson, father, or paternal grandfather is present, as they automatically exclude all siblings and all other male `asabaat and will get all of the residue. In fact, even a haqeeqi brother will exclude all other `asabaat below him, and so again only a single `asabaat category will remain if he is present, and thus the principle will not need to be applied.