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Hadith 35295
Malik said from Hisham ibn Urwa from his father that an
effeminate man was with Umm Salama, the wife of the Prophet, may Allah
bless him and grant him peace. He said to Abdullah ibn Abi Umayya
while the Messenger of Allah, may Allah bless him and grant him peace,
was listening. "Abdullah! If Allah grants you victory over Ta'if
tomorrow, I will lead you to the daughter of Ghailan. She has four
folds on her front and eight folds on her back." The Messenger of
Allah, may Allah bless him and grant him peace, said, "This sort of
man should not enter freely with you." (It was customary to allow men
with no sexual inclination to enter freely where there were women).
Muwatta Malik Book 37, Hadith 7
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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
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Malik related to me that Yahya ibn Said said that he heard al-
Qasim ibn Muhammad say, "A woman of the Ansar was married to Umar ibn
al-Khattab. She bore Asim ibn Umar to him, and then he separated from
her. Umar came to Quba and found his son Asim playing in the courtyard
of the mosque. He took him by the arm and placed him before him on his
mount. The grandmother of the child saw him and argued with Umar about
the child so they went to Abu Bakr as-Siddiq. Umar said, 'My son.' The
woman said, 'My son.' Abu Bakr said, 'Do not interfere between a child
and its mother.' Umar did not repeat his words."
Yahya said
that he heard Malik say, "This is what I would have done in that
situation." Muwatta Malik Book 37, Hadith 8