CONTENTS FOR THIS SECTION
Renting And Hiring
Taking An Item Without Permission
Wasiyyah or Bequests
Renting and Hiring
1. Once you have taken a house on rent on a monthly basis and took possession of it, you will have to pay the rent on the expiry of the month. This is irrespective of whether you lived in it or whether it remained empty. In both cases it is wâjib on you to pay the rent.
2. A tailor sewed a garment for you, a dyer dyed it for you or the washerman washed it for you. After carrying out this work, he brought it to you. He has the right of refusing to hand over the garment to you until you pay him for the job that he has carried out. It is not permissible for you to take it forcefully without having paid him.
If you asked a labourer to carry a sack of grain for you, he cannot hold back this grain until you pay him for his effort. This is because by his bringing the grain for you, no changes took place in the grain. As opposed to the above-mentioned examples wherein a change took place in the fabric or garment.
3. A person made a condition that you alone should sew this garment, you alone should dye it or you alone should wash it. In such a case it is not permissible to give it to anyone else to do any of the above tasks. But if he did not make this condition, the work could be given to anyone else.
Improper Leasing Or Hiring Out
1. The following methods of hiring out are regarded as ijârah fâsidah (improper leasing):
(a) At the time of renting a house, the period was not specified as to how long the house will be rented.
(b) The rental was not specified. The person merely occupied the house and began living in it.
(c) The tenant made this condition that he will pay the costs for whatever breaks in the house.
(d) The landlord rented the house on the condition that whatever breaks in the house will have to be repaired by the tenant and that the repairs that he will undertake will actually be his method of payment of the rental. But if the landlord says: “You live in this house and undertake whatever repairs are necessary. There is no rental to be paid.” In such a case this is an aariyah (a loan). This is permissible.
2. A person rented a house saying that he will pay R500 monthly. This hiring out will only be valid for one month. At the expiry of one month, the landlord has the right to evict him. If the tenant stays for another month, this hiring out will be valid for one additional month. In this way, a new lease will continue each month. However, if the tenant specified a certain period of time by saying that he will be renting this house for six months or four months (or whatever the case may be), then the leasing will be valid for whatever period he specified. The landlord cannot evict him before the expiry of this period.
3. You asked a person to grind wheat for you and told him to take a certain amount (e.g. half a kilo) of its flour as payment. Alternatively, you asked someone to harvest the crops and told him to take a certain amount of grain from there as payment for harvesting. All this is fâsid.
4. The rule with regard to ijârah fâsidah is that whatever had been agreed upon will not be given. Instead, he will be given whatever payment is normally made for a particular job. If it is a house, the tenant will have to pay the normal rental. However, if the normal payment or the normal rental is more than what had been agreed upon, then the normal payment or rental will not be given. Instead, he will be paid that which was agreed upon. In short, he will be entitled to receive the amount which is less.
5. The hiring of singers, dancers, tricksters and all other types of frivolities is not valid. All this is absolutely bâtil. Therefore, no payment will be given for this.
6. A hâfiz was employed in order to stand over a grave for a certain number of days and recite the Quran and send the rewards to the deceased. This is not valid. The hâfiz will not receive any reward nor the deceased. Furthermore, he is not entitled to receive any payment for this.
7. A person hired a book in order to read it. This hiring out is not valid.
8. The custom of hiring a bull, male goat or male buffalo in order to enable your cow, female goat or female buffalo to fall pregnant is absolutely harâm.
9. It is not permissible to hire a cow, goat or buffalo in order to obtain its milk.
10. It is not permissible to give your fowls or goats to a person asking him to take care of them and thereafter if they give birth, half the young will be for you and the other half for him. This is not permissible.
11. It is not permissible to hire chandeliers, etc. merely to adorn and decorate the house. Even if one hires them, the person who hired them out is not entitled to receive any rental for them. However, it is permissible to rent a chandelier if it is for the purpose of illuminating the house (and not for mere adornment).
12. A person hired a rickshaw (car or any other vehicle). It is not permissible to load such a vehicle beyond its capacity or beyond the normal way of loading. Similarly, it is not permissible for more than the normal number of persons to sit in a palanquin without obtaining the permission of the palanquin-carrier.
13. A person lost an item of his. He announced, “Whoever can show me where this item is, I will give him R10.” If anyone shows him the place where it is, he will not be entitled to receive the money because this ijârah is not valid. However, if the person asked a particular person that if you can show me where it is, I will give you R10, then the latter will not receive any money if he showed it to him while he (the latter) was sitting or standing in that very place. However, if he took a few steps and showed him where the item is, he will receive whatever he was promised.
Taking Of Compensations
1. A dyer, washerman or tailor was given an item in order to carry out his respective job. The item which is given to him is regarded as an amânah. If it is stolen, lost or destroyed unintentionally despite his taking all the precautions; it is not permissible to take any compensation from him. However, if he washed the cloth in such a way that it got torn, or placed an expensive silk garment in the cauldron in such a way that it got damaged; it will be permissible to ask him for a compensation. Similarly, it is permissible to take compensation for a garment which he may have exchanged (with another garment). If he loses a garment and says that he does not know where it has disappeared to or what has happened to it, it will be permissible to ask him for compensation. But if he says that a burglary took place and it got stolen, it will not be permissible to ask for any compensation.
2. You hired a labourer and asked him to deliver some oil, ghee, etc. to your house. On the way, it fell down. It is permissible to ask him for compensation.
3. As for the person who is not hired for that particular job, instead he is your employee, domestic servant or a person who has been hired for a day or a few days, if he drops anything, it will not be permissible for you to take any compensation from him. However, if he intentionally causes any damage, it will be permissible to ask him for compensation.
4. A person has been employed to tend to a child. Through his negligence, the child’s jewellery or any other item disappeared. It is not permissible to take any compensation from him.
Annulment Of A Rental Contract
1. A person took a house on rent. However, it leaks profusely, a certain portion of it collapsed or any other fault became apparent which makes it difficult to live in. In such cases, it is permissible to annul the rental contract. And if the house becomes absolutely dilapidated and uninhabitable, the rental contract will be annulled on its own. There is no need for you to request an annulment nor is it necessary to obtain the consent and agreement of the landlord.
2. If the landlord or the tenant passes away, the rental contract becomes annulled.
3. If a certain reason crops up whereby one is forced to annul the contract, it will be permissible to annul it. For example, you hired a vehicle in order to travel to a certain place. Thereafter, you changed your mind and decided not to embark on such a journey. In such a case it is permissible to annul the contract.
4. The custom of paying a deposit when hiring a vehicle and thereafter paying the balance when you embark on the journey, and forfeiting the deposit when you decide not to embark on the journey is not permissible. The person who takes the deposit has to return it in the event of the customer not embarking on the journey.
Taking An Item Without Permission
1. It is a major sin to take an item which belongs to a person forcefully or in his absence. Some women take items that belong to their husbands or other relatives without permission. This is also not permissible. If you take an item without permission and you still have it in your possession, you will have to return that very item. However, if you have already used that item then the rule is that if the same item could be purchased from the bazaar, it will be wâjib on you to purchase it and replace it. Such items are: grain, ghee, oil, money, etc. If the item is such that its exact replica cannot be obtained, then you will have to give money equal to the value of that item. Such items are: fowls, goats, guavas, oranges, pears, etc.
2. One of the legs of the bed broke or its strips or joints broke. Alternatively, you took an item and it got damaged or broken. You will have to pay for the damage caused.
3. You took a certain amount of money without permission and thereafter began a certain business with it. It is not permissible for you to take whatever profits you make with that money. You will have to return the original money to the owner and the profits will have to be given to the poor.
4. You tore someone’s clothing. If very little got torn, you will have to pay compensation according to the damage. If you tear it in such a way that it cannot be used for the purpose for which it was made, that clothing will be given to you and you will have to pay for it entirely. For example, a scarf was torn in such a way that it can no longer be used as a scarf. Instead, small blouses can be made with it. In such a case, keep that scarf and pay for the entire cost of it to the owner.
5. You took someone’s gem-stone and had it set in a ring. You will now have to pay for that stone. It is not wâjib on you to break the ring, remove the stone, and return it to the owner.
6. A person took a cloth and had it dyed. The owner of the cloth has the choice to take the dyed cloth and pay whatever increase took place in the price of the cloth. Alternatively, the owner can leave the cloth with the person and ask him to pay for it.
7. A person takes a certain item without permission, loses it, pays compensation for it, and thereafter finds it. He will have to check whether the value of the item is according to the compensation that the owner had asked for. If it is the same, he does not have to return the item. It will now belong to him. If the compensation paid was less than what the owner had asked for, then the owner has the right to take back his item and return the compensation.
8. Someone’s goat or cow came into your yard. It is harâm for you to milk it. If you take any milk, you will have to pay for it.
9. It is not permissible to take the following items without permission: needles, cotton, a scrap of material, etc. It is wâjib to pay for whatever you take if it gets lost or consumed. Alternatively, inform the person that you have taken a certain item and that he should forgive you. If you do not do so, you will have to pay on the day of judgement.
10. Your husband brought a length of material for himself. At the time of cutting the material, you saved a certain length and kept it for yourself without informing him. This is also not permissible. Whatever you want, ask for it. If he does not give it to you, do not take it.
1. A person passed away and left behind some wealth. All his wealth will fall under the partnership of all his rightful inheritors. As long as permission is not obtained from all the inheritors, no one can take it for his personal purposes. If anyone takes it and uses it, he will be sinning.
2. Two women got together and purchased a utensil. This utensil will now be under their joint partnership. One of the women cannot use it or sell it without the permission of the other.
3. Each of two women contributed a certain amount of money and purchased guavas, pears, berries, jambolana, cucumbers, melons, etc. under a joint partnership. When the items came from the market, one of the women was not present. In such a case, do not divide the items taking your share and leaving her share one side thinking that when she comes she will take her share. As long as both of them are not present, it is not permissible to divide the shares. If you divide the shares and eat your share before she can arrive, you will be committing a major sin.
However, if wheat or any other grain was purchased under a joint partnership and you divided it, took your share and gave hers to her when she arrived, this is permissible. However, in such a case, if any theft takes place in the share of the other wife before her share could be given to her, then this would be regarded as a loss of both the women and she (the woman whose share got stolen or disappeared in any other way) will become a partner in her (the women whose share was not stolen) share.
4. Two persons invested R100 each and commenced with a business and agreed that whatever profits they make will be divided equally between them. This is valid. If they agree that one person will receive two thirds of the profits and the other will receive one third, it is also valid. This is irrespective of whether both of them invested the same amount of money or one invested more and the other less.
5. These two persons hadn’t purchased the goods as yet and the money got stolen. Alternatively, both their money was still kept separately and the money of one of them got stolen. In such a case the partnership will be annulled. They must become partners again and then commence with their business.
6. Two persons entered into a partnership and one of them said: “Take this R100 of mine, add R100 from your side and you start selling clothes. We will divide the profits between us.” One of them purchased some clothes (with his own money). Thereafter, R100 of the other person (the one who did not purchase the clothes) got stolen. In such a case, both of them will be partners in whatever clothes were purchased and the other person (the one whose money got stolen) can take money from him equal to the value of half the clothes.
7. When embarking on a business venture, one of them made the condition that whatever profits we make, R10 or R15 will be mine and the balance will be yours. This is not permissible.
8. The goods that were for sale got stolen. Both of them will have to bear the loss. It cannot happen that all the losses are borne by one person. If they make an agreement that whatever losses we encounter, I will bear them and whatever profits we make we will share it between us, this is not permissible.
9. Once a partnership has been pronounced to be prohibited or invalid, then when they share the profits, all their previous agreements will not be taken into consideration. Instead, if both of them made an equal investment, they will receive equal profits. If the investment was not the same, the profits will be shared according to the percentage invested by each person irrespective of what agreement may have been made. Agreements are only taken into consideration when the partnership is valid and is not allowed to become prohibited.
10. Two women entered into a partnership on the basis that whatever sewing we get, we will do it together and whatever money we receive for the sewing, we will share it between ourselves. This partnership is valid. If they make an agreement that we will do the sewing together but the money that we receive, I will take two thirds and you must take one third, it will still be valid. But if they agree that one will receive R10 or R20, and the other will receive the balance, this is not permissible.
11. One of these two women accepted a length of material which had to be sewn into a garment. The other woman cannot say: “Why did you take this job? Since you have taken it, you will have to sew it.” Instead, the responsibility of sewing the garment is now wajib on both of them. If one of them does not sew, the other one will have to sew it. Alternatively, both of them can sew it together. In short, they cannot refuse to sew it.
12. The customer who had given the job of sewing came to collect her garment. When she came to collect it, the woman who had accepted the job was not present. Instead, the other partner was present. The customer has the right to ask for the garment from this partner as well. The latter cannot say that she has nothing to do with it and that she must collect it from the person whom she had given it to.
13. In the same way, both partners have the right to ask for the money for carrying out the job. The customer cannot say that she will not give it to you and that she will only pay the person to whom she had given the job. When both of them are working under a partnership, both of them have the right to ask for the money. The customer will be fulfilling her duty by paying any one of them.
14. Two women entered into a partnership that they will go together into the jungle and bring firewood. This partnership is not valid. The firewood belongs to the one who picks it up. There is no joint ownership in this.
15. One woman said to another, Keep these eggs under your hen. Whatever chicks are born, we will share them equally.” This is not permissible.
Distributing Items That Are Under A Partnership
1. Two persons got together and purchased wheat from the market. At the time of dividing this wheat, it is not necessary for both of them to be present. Even if one of them is not present, it is permissible for the other person to have it weighed properly, take her share, and keep the other share aside for her partner. Once the wheat has been divided, it is permissible for the person who was present to do whatever she wishes with her own share – she can eat it, consume it in any other way, give it to someone, etc. All this is permissible. The same rule will apply to ghee, oil, eggs, etc. In short, items which do not have any difference and are all the same can be purchased and divided in the absence of any one of the partners. However, if the second person has not taken her share as yet and it disappears or is destroyed in some way or the other, then this loss will be regarded as a loss of both the partners – as explained in the chapter on partnerships.
As for those items in which there is a difference, such as guavas, pears, etc. then as long as both partners are not present, it will not be permissible to divide the shares.
2. Two girls got together and purchased some mangoes, guavas, etc. One of them was not present at that time. It is not permissible for the other girl to eat any of this fruit. When the other girl comes, the fruit will be divided and only then can she eat it. If she does not wait for her and commences eating before it can be divided, she will be committing a sin.
3. Two persons got together and purchased roasted gram seeds. It will not be permissible for them to divide this by mere estimation. They will have to weigh it properly and divide it equally. If there is any difference in the weight, it will be regarded as interest.
(Supplement To Bahishti Zewar)
Partnerships are of two kinds:
(a) Shirkat-e-Imlâk: Examples: (1) A person passes away and there are several inheritors to his estate. (2) Two persons contributed an amount of money and purchased one item. (3) One person gave a gift to two persons.
The rule with regard to such a partnership is that no one has a right to do anything with the item without the permission of the other.
(b) Shirkat-e-‘Uqûd: Two persons made a mutual agreement that they will conduct a business together. The categories and rules of such a partnership are as follows:
1. One of the categories of shirkat-e-‘uqûd is shirkat-e-‘inân.
Shirkat-e-‘inân: Two persons contribute a certain amount of money and decide to purchase clothing, grain, etc. and thereafter start a business with it. The condition in such a partnership is that the contribution of both must be in cash irrespective of whether it be silver coins, gold coins or currency notes. Based on this, if both of them add something that is not cash and wish to commence a business on a partnership basis or, one of them contributes cash and the other contributes something else, this partnership will not be valid.
(i) In shirkat-e-‘inân it is permissible for one person to contribute more than the other and the share of the profits will be according to what they agree upon. That is, if they make this condition that there will be a difference in the contribution of each one but the profits will be shared equally; this will be permissible. If they make a condition that the contribution will be equal but the share of profits will not be equal, e.g. the profit sharing ratio will be on a one third/two third basis, this will also be permissible.
(ii) In shirkat-e-‘inân, each partner has the right to exercise his power and do whatever he wishes with the tradeable goods on the condition that whatever he does is not contrary to their agreement. However, the debts of one partner will not be demanded from the other partner.
(iii) Two persons agreed on entering into a partnership and they also agreed on the amount of each one’s contribution. However, before they could purchase anything in order to commence their business, all the money was destroyed or the contribution of one of the partners was destroyed. In such a case, the partnership will become invalid.
If one of the partners has already purchased some goods and the contribution of the other partner was destroyed, the partnership will not become invalid. The goods that have been purchased will belong to both partners, and according to the percentage that the other partner (the one whose contribution was destroyed) contributed into the capital, he will have to give that percentage to the other partner (the one who had purchased the goods). For example, one person contributed R9 and the other person contributed R3. The person who contributed R9, purchased some goods with it. The one who contributed R3, lost his money. The one who contributed R3 therefore has a share of one third in those goods. The person who contributed R9, will collect one third of this amount (i.e. R3) from this person and these goods will be sold on a partnership basis.
(iv) In such a type of partnership it is not necessary for the contribution of both the partners to be mixed. Such a partnership becomes entrenched by mere îjâb and qubûl (offer and acceptance).
(v) The sharing of profits have to be specified on a percentage basis, eg. 50% or one third, two thirds, etc. It is not permissible for them to say that one will receive R100 and the other will receive the remainder.
2. Another category of shirkat-e-‘uqûd is shirkat-e-sanâ’i. It is also called shirkat-e-taqabbul.
Shirkat-e-sanâ’i: For example, two tailors or two dyers make an agreement that whatever work comes to any one of the two, he will accept it and whatever money he gets paid for this work, it will be shared between the two based on a certain percentage. This is permissible.
(i) Work that is accepted by one of them will become necessary on both of them. For example, one partner accepted a job to sew a garment. Just as the customer can demand the garment from this partner, he can also demand it from the other partner as well. Similarly, just as the partner who sewed it can demand the money for the labour, the other partner also has the right to demand for it from the customer. Just as the customer can absolve himself by paying the partner to whom he had given the job, he can also absolve himself by paying the other partner.
3. Another type of partnership is shirkat-e-wujûh. That is, the partners do not have any money or wealth, nor do they have any profession or occupation. They merely make a mutual agreement that they will take goods on credit from the traders and go around selling them. Even in such a partnership, each partner will be a guarantor for the other. The profits will be shared according to the percentage that they agree upon. For example, if they agree that they are purchasing the goods on an equal basis, the profits will also be shared equally. If they agree that they are purchasing the goods on a one third/two thirds basis, the profits will be shared accordingly.
1. You took a loan of R10 from someone and in order for him to trust you, you kept one of your possessions with him informing him that if you do not trust me, keep this item with you. Once I repay you the R10, I will take my item back. This is permissible. This is known as mortgaging or pawning. However, under no circumstances is it permissible to pay any interest as is in vogue among the merchants and bankers whereby they charge an interest for mortgaging. It is harâm to pay or to accept interest.
2. Once you have mortgaged an item, you do not have the right to ask for it or take it until you have fulfilled your debt.
3. If any one mortgages an item with you, it is not permissible for you to utilise it or take any benefit from it whatsoever, e.g. it is not permissible for you to eat any fruit from the orchard that has been mortgaged, to eat the grain from such a land, to use such money or to live in such a house.
4. If a person has mortgaged a goat or cow, the milk and young ones will belong to the owner. It is not permissible for you to use any of this for your personal purposes. You will have to sell the milk and include the money with the mortgage. Once the person fulfils his debt, you will have to return the mortgaged item together with the money you receive for the milk, and you can deduct the money for whatever it cost you to feed the animal.
5. Once you have repaid part of your debt, you still cannot take back your mortgaged item. Only when you settle your debt in full will you receive your mortgaged item.
6. You took a loan for R10 and mortgaged an item which cost R10 or more. While that item was under his possession, it got lost or disappeared. In such a case, he has no right to demand his money from you nor do you have any right to demand any money for your item which he lost. You have lost your item and he has lost his money. However, if your item was worth R5 and it got lost or disappeared, you will only have to repay R5 and the balance R5 will be deducted.
Wasiyyah or Bequests
1. A person’s saying that a certain amount of money or wealth will go to a certain person or for a certain cause after his death is known as wasîyyah. This is irrespective of whether he said this while he was enjoying good health or while he was ill, and irrespective of whether he passes away as a result of this sickness or he recovers from it. The rule with regard to the wealth which he gives with his own hands or forgives the debts that he is being owed is that if he gives this while he is enjoying good health or he recovers from the sickness in which he gave this, it is permissible for him to do this and this is valid. As for the sickness in which he passes away, this will be regarded as a wasîyyah – the rules regarding which will be mentioned later.
2. If a person has salâts to be fulfilled, fasts to be kept, zakâh to be paid, kaffârah to be paid for certain oaths, missed fasts, etc., and he also has sufficient wealth to fulfil all these, then at the time of death it is necessary and wâjib upon him to make a wasîyyah in this regard. Similarly, if a person has debts to be fulfilled or an amânah has been kept with him, it becomes wâjib upon him to make a wasîyyah in this regard. If he does not make a wasîyyah, he will be sinning.
If such a person has poor relatives who cannot inherit from his wealth according to the Sharî‘ah and this person has a lot of wealth and possessions, it is mustahab for him to make a wasîyyah in favour of these poor relatives. As for all other persons, he has the choice of either making a wasîyyah in their favour or not making.
3. When a person passes away, all the expenses for his ghusl, kafan, burial, etc. will be paid from his estate. Thereafter, all his debts will be paid. If the entire estate of the deceased is exhausted in paying off his debts, it is still necessary to pay off all the debts and the inheritors will not receive anything. Therefore, his wasîyyah of fulfilling his debts will have to be followed. Even if all his money is exhausted in fulfilling his wasîyyah of debts, it will have to be followed. In fact, even if he does not make any wasîyyah with regard to his debts, they will still have to be paid off first.
Apart from debts, the person can only make a wasîyyah for one third of his entire estate. In other words, if his wasîyyah can be fulfilled from one third of his entire estate, it will have to be fulfilled and it will not be wâjib on the inheritors to use more than one third in order to fulfil his wasîyyah. For example, after paying for his kafan, burial and debts, there remained R300 and R100 (which is one third of R300) was sufficient to fulfil all his wasîyyahs. In such a case, his wasîyyah will be fulfilled.
If the person’s wasîyyah is more than one third of his estate (in this case, more than R100), the inheritors will only have to fulfil the wasîyyahs until they pay off R100 and the balance of the wasîyyahs will not be paid. However, if all the inheritors happily agree to forgo their shares and rather have his wasîyyah fulfilled, then it will be permissible to use more than one third in order to fulfil his wasîyyah. It should be remembered that the permission of immature inheritors is not considered. Even if they agree, their share cannot be used to fulfil the wasiyyah.
4. It is not permissible to make wasîyyah in favour of the persons who are going to receive a share of the inheritance, e.g. one’s parents, husband, wife, son, etc. It is permissible to make wasîyyah in favour of those relatives who are not entitled to receive any inheritance and also those persons who are not relatives whatsoever. However, the person cannot make wasîyyah for more than one third of his estate.
If a person makes a wasîyyah in favour of one of his inheritors to the effect that a certain person will receive a certain item of mine after my death or a certain amount of money, such a person will have no right whatsoever to receive that item or money. However, if all the other inheritors happily agree to give him, it will be permissible for him to receive it.
If a person makes wasîyyah for more than one third, the same rule as above will apply. That is, if all the inheritors happily agree to give more than one third, it will be permissible for him to receive it. If not, he will only receive one third.
It should be remembered that under no circumstances can the permission of immature inheritors be taken into consideration. Remember this rule in all situations and circumstances.
5. Although a person is entitled to make a wasîyyah for one third of his estate, it is preferable not to make it for the full one third. Instead, it should be made for a lesser percentage. In fact, if a person is not very rich, it will be preferable for him not to make a wasîyyah at all. Instead, he should leave his wealth for his inheritors so that they may lead a life of comfort. This is because one is also rewarded for leaving his inheritors in a state where they can lead a life of comfort and ease. However, if it is a necessary wasîyyah, such as his missed salaats, fasts, fidyah, etc. then he will have to make a wasîyyah, if not, he will be sinning.
6. A person says, “After my death, give R100 in charity.” After paying for his burial arrangements and his debts, check how much wealth is left over. If there is R300 or more, R100 will have to be given in charity. If it is less than R300, it will only be wâjib to give one third of whatever money is left over. But if all the inheritors happily agree to give the full amount without anyone of them being coerced into agreeing, it will be permissible.
7. If a person has no inheritors, it is permissible for him to make wasîyyah for his entire estate. If he only has his wife as his inheritor, he can make a wasîyyah in her favour for three quarters of his estate. Similarly, if a woman only has her husband as her inheritor, she can make a wasîyyah in his favour for half her estate.
8. The wasîyyah of an immature child is not valid.
9. A person makes the following wasîyyah, “A certain person must perform my janâzah salât, I must be buried in a certain town, in a certain graveyard, next to a certain person, my kafan must be of a certain cloth, my grave must be constructed of bricks, a dome must be constructed over my grave, and a hâfiz must sit at my grave and continue reciting the Quran so that I may receive the rewards.” It is not necessary to fulfil such a wasîyyah. In fact, it is not permissible to fulfil the last three wasîyyahs. The person who fulfils them will be committing a sin.
10. If a person makes a wasîyyah and thereafter revokes it, i.e. he says that he does not wish it to be fulfilled anymore and that it should not be taken into consideration, then in such a case this wasîyyah will be invalid.
11. Just as it is not permissible to make a wasîyyah for more than one third of one’s estate, similarly, it is not permissible for one to spend more than one third of one’s wealth while one is in his maradul maut. However, he can spend his wealth for his basic necessities, his food and drink, medication, etc. If a person gives more than one third, it will not be permissible to do so without the permission of the inheritors. Whatever he gives beyond one third, the inheritors have the right to take it. As for immature inheritors, even if they grant permission, it is not considered. Inheritors do not have the right to give anything without the permission of all the other inheritors even if it is within the one third. This rule applies when the person gave it while he was alive and the person to whom it was given also took possession of it. If he gave it but the person did not take possession of it as yet, then once the person passes away, this giving of his will be absolutely invalid. The person will not receive anything and the inheritors will have a right in all the wealth. This rule also applies to spending in the path of Allah or in some noble cause while one is sick. In short, under no circumstance is it permissible to give more than one third.
12. When the person fell ill, a few people came to live with him with the intention of tending to him and seeing to his needs. They spent several days with him, living with him and partaking of his meals as well. If the sick person requires their services and therefore they stayed with him, there will be no harm in this. But if there is no need for them to be present, in such a case it will not be permissible for the sick person to spend more than one third in accommodating them.
If these persons who have come are his inheritors and there is no need for them to be present, it will not be permissible to spend even less than one third on them. That is, it is not permissible for them to eat from his wealth. However, if all the inheritors express their consent happily, it will be permissible.
13. When a person is in his maradul maut, he has no right to forgive anyone from paying their debts to him. If any inheritor was his debtor and he forgave him, it will not be considered to be forgiven. If all the inheritors give their consent to the waiving of an inheritor’s debts (provided all of them are mature), it will be considered to be waived. If a person waives the debts of an outsider, only an amount that is within one third will be waived and the balance will not be waived. It is a custom for the wife to forgive her husband from paying the mahr at the time of her death. This is not valid.
14. When a woman begins to experience labour pains and she gives something to anyone or forgives her mahr, then the rules that apply at the time of death will also apply here. That is, if, Allah forbid, she passes away during this labour, then whatever she gives will be regarded as a wasîyyah and therefore not permissible for an inheritor. If it is an outsider, she has no right to give or forgive more than one third. However, if she delivers the child and recovers completely, this giving and forgiving will be valid.
15. Once a person passes away, his burial arrangements will be paid for with his money. From the balance, his debts will first have to be paid off. This is irrespective of whether he made a wasîyyah in this regard or not – fulfilling of debts is always given precedence. The mahr that is owed to one’s wife is also included in one’s debts. If the person has no debts or there is a remainder after fulfilling the debts, we will have to see whether he made any wasîyyah or not. If he made any wasîyyah, it will be paid from one third. If he did not make any wasîyyah or there is still a remainder, all the balance will be the right of the inheritors. One should enquire about the rightful inheritors (and their respective shares) from an ‘âlim and distribute the estate accordingly. The custom of anyone taking whatever he likes is a major sin. If a person does not pay in this world, he will have to pay in the hereafter – where the payment will be with one’s good deeds. Similarly, girls should also be given their share as the Sharî‘ah has given them a right as well.
16. It is not permissible to take the money of the deceased in order to pay for entertainment and accommodation of visitors, feeding them, or to give in charity, etc. Similarly, it is harâm to give any dry groceries, etc. (of the deceased) to poor persons from the time the person passes away until he is buried. In doing this, no reward whatsoever reaches the deceased. In fact, it is a major sin to regard this as an act of reward. This is because all this wealth now belongs to the inheritors, to deprive them of their right and give it to someone else is similar to stealing someone else’s money and giving it in charity. All the wealth should be distributed among the inheritors. Each one of them has the right to spend and give as he wishes provided it is spent in accordance with the Sharî‘ah. When intending to give in charity, one should not even ask the permission of the inheritors as in most cases, if they grant permission it will only be done superficially because they fear embarrassment. There is no consideration for such a permission.
17. Similarly, it is not permissible to give the deceased’s used clothes in charity without obtaining the consent of the inheritors. If there are any immature inheritors, it will not be permissible to give these clothes even if they grant permission. All these clothes should first be distributed among all the inheritors, thereafter, if the mature inheritors wish to give anything in charity, they may do so from that which they received. Without this distribution, these clothes should never be given in charity.