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Hadith 35293
Yahya said that he heard Malik say, "The best of what I have
heard about the testament of a pregnant woman and about what
settlements she is permitted in her property is that the pregnant
woman is like the sick person. When the illness is light, and one does
not fear for the sick person, he does with his property what he likes.
If the illness is such that his life is feared for, he can only
dispose of a third of his estate."
He said, "It is the same
with a woman who is pregnant. The beginning of pregnancy is good news
and joy. It is not illness and no fear because Allah the Blessed, the
Exalted, said in His Book, 'We gave her good news of Ishaq and after
Ishaq, Yaqub.' (Sura ll ayat 71). And He said, 'She bore a light
burden and passed by with it, but when she became heavy, they called
upon Allah, their Lord, "If you give us a good-doing son, we will be
among the thankful." '(Sura 7 ayat 189).
"When a pregnant
woman becomes heavy, she is only permitted to dispose of a third of
her estate. The beginning of this restriction is after six months.
Allah, the Blessed, the Exalted, said in His Book, 'Mothers suckle
their children for two complete years.' And He said, 'his bearing and
weaning are thirty months.' (Sura 2 ayat 233).
"When six
months have passed for the pregnant woman from the day she conceived,
she is only permitted to dispose of a third of her property."
Yahya said that he heard Malik say, "A man who is advancing in the row
for battle, can only dispose of a third of his property. He is in the
same position as a pregnant woman or an ill person who is feared for,
as long as he is in that situation."
Muwatta Malik Book 37, Hadith 5
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Malik related to me from Ibn Shihab from Amir ibn Sad ibn Abi
Waqqas that his father said, "The Messenger of Allah, may Allah bless
him and grant him peace, came to me to treat me for a pain which
became hard to bear in the year of the farewell hajj. I said,
'Messenger of Allah, you can see how far the pain has reached me. I
have property and only my daughter inherits from me. Shall I give two
thirds of my property as sadaqa?' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'No.' I said, 'Half?' He said,
'No.' Then the Messenger of Allah, may Allah bless him and grant him
peace, said, 'A third, and a third is a lot. Leaving your heirs rich
is better than leaving them poor to beg from people. You never spend
anything on maintenance desiring the Face of Allah by it, but that you
are rewarded for it, even what you appoint for your wife.' Sad said,
'Messenger of Allah, will I be left here in Makka after my companions
have departed for Madina?' The Messenger of Allah, may Allah bless him
and grant him peace, said, 'If you are left behind, and do sound deeds
you will increase your degree and elevation by them. Perhaps you will
be left behind so that some people may benefit by you and others may
be harmed by you. O Allah! complete their hijra for my companions, and
do not turn them back on their heels. The unfortunate one is Said ibn
Khawla.' The Messenger of Allah, may Allah bless him and grant him
peace, was distressed on his account for he had died at Makka."
Yahya said that he heard Malik speak about a man who willed a
third of his property to a man and said as well, "My slave will serve
so-and-so (another man) for as long as he lives, then he is free,"
then that was looked into, and the slave was found to be a third of
the property of the deceased. Malik said, "The service of the slave is
evaluated. Then the two of them divide it between them. The one who
was willed a third takes his third, as a share, and the one who was
willed the service of the slave takes what was evaluated for him of
the slave's service. Each of them takes, from the service of the slave
or from his wage if he has a wage, according to his share. If the one
who was given the service of the slave for as long as he lived dies,
then the slave is freed."
Yahya said that he heard Malik
speak about someone who willed his third and said "So-and-so has such-
and-such, and so-and-so has such-and-such," naming some of his
property, and his heirs protested that it was more than a third."
Malik said, "The heirs then have an option between giving the
beneficiaries their full bequests and taking the rest of the property
of the deceased, or between dividing among the beneficiaries the third
of the property of the deceased and surrendering to them their third.
If they wish, their rights in it reach as far as they reach." Muwatta Malik Book 37, Hadith 4
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Yahya said that he heard Malik say, "This ayat is abrogated. It
is the word of Allah, the Blessed, the Exalted, 'If he leaves goods,
the testament is for parents and kinsmen.' What came down about the
division of the fixed shares of inheritance in the Book of Allah, the
Mighty, the Exalted, abrogated it."
Yahya said that he heard
Malik say, "The established sunna with us, in which there is no
dispute, is that it is not permitted for a testator to make a bequest
(in addition to the fixed share) in favour of an heir, unless the
other heirs permit him. If some of them permit him and others refuse,
he is allowed to diminish the share of those who have given their
permission. Those who refuse take their full share from the
inheritance.
Yahya said that he heard Malik speak about an
invalid who made a bequest and asked his heirs to give him permission
to make a bequest when he was so ill that he only had command of a
third of his property, and they gave him permission to leave some of
his heirs more than his third. Malik said, "They cannot revoke that.
Had they been permitted to do so, every heir would have done that, and
then, when the testator died, they would take that for themselves and
prevent him from bequeathing his third and what was permitted to him
with respect to his property."
Malik said, "If he asks
permission of his heirs to grant a bequest to an heir while he is well
and they give him permission, that is not binding on them. The heirs
can rescind that if they wish. That is because when a man is well, he
is entitled to all his property and can do what he wishes with it. If
he wishes, he can spend all of it. He can spend it and give sadaqa
with it or give it to whomever he likes. His asking permission of his
heirs is permitted for the heirs, when they give him permission when
authority over all his property is closed off from him and nothing
outside of the third is permitted to him, and when they are more
entitled to the two-thirds of his property than he is himself. That is
when their permission becomes relevant. If he asks one of the heirs to
give his inheritance to him when he is dying, and the heir agrees and
then the dying man does not dispose of it at all, it is returned to
the one who gave it unless the deceased said to him, 'So-and-so - (one
of his heirs) - is weak, and I would like you to give him your
inheritance.' So he gives it to him. That is permitted when the
deceased specified it for him."
Malik said, "When a man gives
the dying man free use of his share of the inheritance, and the dying
man distributes some of it and some remains, it is returned to the
giver, after the man has died."
Yahya said that he heard
Malik speak about someone who made a bequest and mentioned that he had
given one of his heirs something which he had not taken possession of,
so the heirs refused to permit that. Malik said, "That gift returns to
the heirs as inheritance according to the Book of Allah because the
deceased did not mean that to be taken out of the third and the heirs
do not have a portion in the third (which the dying man is allowed to
bequeath)." Muwatta Malik Book 37, Hadith 6