904, Couns raniRs ON THE CODE OF a SLIM PERSONAL, OF TES PLP WINE JURISPRUDENGH SPEC HOSE ap Civil Registry as itis not one of these ot one matters registerable wit latter, however, under Article 145, paragraph 2, sub Paragraph (a such change, Art. 408 of the Civil Code also provid “The following shall be entered in the civil register: a. Births; D. marriages; © death; 4. legal separations; annulment of marriages; e ‘Sidgments declaring marriages void from the begin. & — legitimations; h. adoptions; acknowledgments of natural children; i. naturalization; Kloss; or 1. recovery of citizenship; m. civil interdiction; 1. judicial determination of filiation; ° voluntary emancipation of a minor; and P. changes of name.” "Art. 48, Ovil Code, Part IIT WILLS AND SUCCESSION Historical Background, — Succession which is known in Arabic as Al-mawarith (Inheritance) as a mode of transmission of a person's property to take effect upon death, during the pre- Islamic Arabia, was characterized by the strong tradition among the ‘Arabs that the right to inheritance (mirath) devolves only among male heirs or agnates (asabat) on the basis that he alone who can bear arm and defend the tribe in battles from its enemy have the right to inherit. Woman, in fact, was looked upon as a part of the property of the deceased (4:19); and therefore, her right to property by inheritance was out of question.’ The unqualified’ patriarchal despotism of the pre-lslamic Arabs had influenced its social laws concerning the transmission and acquisition of properties by inheritance and further, by their tradition that property ownership be concentrated in their families; there was no distinction between an ancestral or self-acquired properties,* and during his lifetime, ‘a Mussulman has absolute power over his property whether it be selfacquired or ancestral or whether it is real or personal.’ The chief object kept in view of by the pagan Arabs in the succession of the property was that of retaining it in the family. And in order to secure this object, the right to succeed was confined exclusively to the male relations, and even among them to those who were capable of bearing arms, and defending their possessions.‘ Consequently, all female relations as well as all male minors were excluded from the right to succeed. The widows were excluded because they were regarded as part ofthe estate, and as such passed ordinarily into the +hands of their husband heirs; the daughters were excluded because "Maulana Muh, Ali, The Religion of Islam, p. 701. ‘Miskat-ul-Masabih, Al-hadis, p. 828, 98. Ameer Al, Muhemmadan Law. ‘«R. Roberts, The Social Lave of Quran, p, 62; Citing Baidavi in Sura 4; 8; Alo 'W. Rob Smith, “Kinship and Marriage," p. 65 585‘586 __ COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS ‘OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE upon their marriage, they ceased to be members of their natural families. Finally, the male minors were excluded because as they were not able to bear arms and so to defend the tribal property rights and privileges. . With the advent of Islamic or Muslim law the Holy Prophet made many social reforms of the pre-Islamic Arabs customs, traditions and practices. Those unjust customs (on inheritance), the Prophet boldly undertook to abolish; and so, helped the female heirs and the children to secure their just rights. The enforcement of the Quran verse concerning the distribution of a deceased person's estate are on the whole equitable, and show a great advance upon the unjust and indeed cruel customs which obtained among the Arabs in pre-Islamic times. The customs of ancient Arabia, the rules laid down in the Quran, and those by the Prophet himself found their way to make up the Muslim law on inheritance. These new social rules outlawed many ancient tribal laws and corrected many social and economic inequalities then prevalent.* Thus, on the law on succession, females and cognates were made co-heirs of men; properties are to be divided among heirs in accordance with the law set upon republican principles of demucralie eunception of equality and on the basis of responsibility, for example, a male heir who has a greater responsibility to the family than that of a female heir is entitled to two shares of what the latter would get; atthe time when the Muslims emigrated from Mecca to Medina, the law of succession ‘was based on Islamic relationship. A Muslim from Medina could inherit from his Muslim brother in Islam until the time when the verse was revealed, verse 75, surah 8, which changed the rule from brotherhood in Islam to relatives Those who formerly succeed to property on the bases of adoption were no longer eligible under the new system of Islam. The rules regulating inheritance are based on the principles that the property which belonged to the deceased should devolve on those who by reason of consanguinity or affinity have the strongest claim to be benefited by it and in proportion to the strength of such claim; and parents and ascendants were given the right to inherit even when there were male descendants. The “bid. p. 68, «Mas Hyee,Outine oftuh. Law, Op. $5; Citing ya ed Introduction, P. "Dol, Shar’, The Islamic Law, p, 272, ‘Abdur Rahim, Muh. Jurisprudence, p. 46. ‘A.A. Fyzee, Outline of Muh. Law, p. 392 WILLS AND SUCCESSION 587 ‘Muslim jurists (Fugaha) provided the details of the basic principles of the law on inheritance as laid down in the Holy Quran and, thus evolved the Muslim law on succession which has come to be known as IImul-Mirath or the science of inheritance. ‘The Law of Succession or Inheritance (Al-Mawarith).’ Succession is known in Arabic as Al-Mawarith (Inheritance). It is one of the modes of transmission of property recognized under the Muslim law, and which may either be: (a) Optional (Iktiyariyyah) or testamentary, through the voluntary act of the testator in the form ‘of bequest or will (wasiya); or (b) Compulsory (Ijbariyyah) by law or legal succession by means of the rules prescribed by Shari'a (Muslim Law). Succession or Inheritance (Al-Mawarith) as a Science in the Muslim Law. — The generic term for the science of inheritance in Muslim law is Iimul-Mirath. (Im literally means knowledge, and mirath, inheritance). As a legal term, it is known as Imul-Farraid. ‘The latter is specially defined as the science of fixing the shares and obligations in inheritance. The Arabic word faraid is derivative from fard, which literally mean ordained, fixed, determined and technically, it is a term used to denote those rules and ordinances, in the Quran which are said to have been enjoined by the Supreme Divine Lawmaker Himself, as distinguished from those which are ‘established upon the precept or practice of the Prophet, and which are called Suna. As a term in law, it means appointment, precision, explanation, and is established by precise and conclusive evidence, hence this branch of law is termed faraid because the shares (siham) of the legal heirs in the property of the decedent have been expressly ordained or appointed by the Holy Quran, and is based ‘on established or precise and conclusive evidence." The former, therefore (IImul-Mirath) is a generic term, while the latter is a precise statement of the law on inheritance (Ilmul-Faraid). Briefly stated, Iimul-Faraid or the science of inheritance is that branch of law which deals with the fixing of shares, qualification of heirs, their rights and obligations and the proportion of shares with respect to tthe estate of the decedent. The main concern of this knowledge is the tarikah (singular form of tarikat [estates] of the decedent); and The following topics were taken from the Notas on Muslim Personal Law of ‘Succession by Atty. Musib Buat which has incorporated somo of the lecture notes of Prof. Abdel Besit Baneil used his lectures during the Shari'a Training Seminar con- Aut in the Philippines in 1982. ‘uBaillie, Digest of Muhammedan Lew, p. 699.588 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE ‘transferring the rights and obligations of the decedent over the estate to the rightful heirs. Knowledge of Mmul-Faraid Enjoined by the Holy Prophet. — From the authority of Abdulah Ibn Amru Tbn Al. thy ‘Messenger of Allah said: Knowledge are of three kinds and the rest are redundancy; (1) Ayat Mukamah (perfect sign, Quran), Sunnah gaimah the legal ways of the Prophet, traditions), and Fari-dah A-dilah (just sharing of inheritance)" According to the Holy Prophet (P.B.U-H); “Learn the laws of inheritance and teach them to the people for they are one-half of the useful knowledge.” The Prophet, has also enjoined the study of the science of inheritance during his lifetime by emphasizing that the science will disappear if not studied and anarchy (fitna) will ensue if'no one will be judge (of the law) among his people (knowledgeable of this science). The study of Imul-Faraid is considered by scholars as Fardhu-Kifaya, meaning obligatory to some members of the community (ummah). ‘The division of inheritance under the Divine Rule is an important part of Huquq-ul-Ibad (duties and obligation towards mankind). Only that divieion ean be just and fair which the real Master of the universe has fixed. The almighty has enjoined in the Quran while instructing for the fair distribution of inheritance that “you know not whether your parents or your children are nearest to you in benefit.” This is to show that we should not rely on our imperfect wisdom and selfish motives for the division of inheritance and that, instead, we should seek guidance from the laws of the Lord. In the Holy Quran, emphasis has been laid on the subject at quite a few places, out of which the rules of inheritance in more detailed form are contained in Sura Nisa (The Chapter on Woman). During the time of the Holy Prophet this subject used to be taught regularly. ‘The Holy Prophet said, “Zaid bin Thabit is an expert on the subject of inheritance among my companions. Allah blessed them all with this pleasure.” The necessary laws and detailed instructions on the division of inheritance have come down to us correctly and authoritatively. Thus Zaid bin Thabit, Aswad bin Zaid, Musa, Ibn ‘Masud, Abu Bakr, Tbn Abbas, Aswad, Ali Ibn Umar, Aisha and other companions have made a vital contributions in this respect." “Narrated by Ibn Maja, muh. AI-Eid Al hatta wi, Al Raid Imud Fara “Sh, Muh, Asraf, Learner's Guide of the Division of Inheritance (Hanaf?, pp. 67. t WILLS AND SUCCESSION 509 Sources of the Muslim Law on Succession or Inheritance (mul-Mirath). — The basic sources of the law on inheritance are: 1. The Holy Quran; 2, Hadith; 3, Tjma-al-Ummah (consensus of the community); and 4, Custom or usages. whe present Code of P.D. 1083 has for its sources in addition the Civil Code of the Philippines, and the Filipino Muslim Custom, ‘The basic principles of inheritance under the Holy Quran are found in Chapter IV (Sarat-ul-Nisa), specifically verses 7,8, 9, 1, 12, an 176; verses 7, 8, and 9, which deals with the general principles; verse 12 refers to shares of husband and wife of decedent and collaterals; while verse 176 refers to shares of full or consanguine brothers or sisters in the absence of ascendants and descendants. Verse 12 then has been interpreted to refer to uterine brother(s) or sister(s). On the basis of the broad principles laid down in the Holy Quran, the precise details have been worked out by Muslin jurists (Fugaha) from the prophet's (P.B.U.H.) traditions (Hadith), the {jma of his companions (Ijma al-Shahaba't) and by interpretation (jtihad) and analogy (Qiyas) jose of Ibn Some of the major works on the subject are those of ‘Thabit Abu Qasim Al-Hawfis (Mukhtasar, Maliki), Al-Jadi, Ibn Al- ‘Muhammar al Taraburisi. Other compilations and works of Muslim jurists are those of Sirajuddin Sajawandi, and Abu Me‘ali (imam Al Horamayn) and by Imam Nawawi (Minhaj-t-talibin, Shafi).BOOK THREE SUCCESSION TITLE |, GENERAL PROVISIONS Art. 89. Succession defined. — Succession is a mod: acquisition by virtue of which the estate of a person is trang. mitted to his heirs or others in accordance with this Code, Notes/Comments Sources of Article he poaran LV:7; “Men shall have a portion of what the parents and the near relatives leave, and women shall huve @ portion of what Parents and near relatives leave, whether there is little or much of it.” Art. 774. Civil Code: “Succession is a mode of acquisiti : 4 mo icquisition by Virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted through his death to another or other, either by his wills or by operation of law.” __ Muslim Law Concept of Succession. — That mod: - mission and acquisition ofa person's properties on is death in favor of his heirs or others which under the civil law is known as sueces- sion is what in Muslim law known as Al-Mawarith or inheritance, ‘The ownership by right of succession of the inherited properties is called in Muslim law as Milkiyyah bil Khilafah, Technically, inher tance as a legal term is understood under the Muslim law and in relation to this Code in either of two concepts. In one sense, as that mode of transmission and acquisition of a deceased person trans- missible estate upon his death in favor of his heirs or others and which is properly succession; and in another sonee, it refers to all of the person's properties, rights and obligations which is referred to under the Muslim law as “tareka” and in civil law as “estate” which are transmitted upon his death to his heirs or others, and what is properly is the person's inheritance. The term inheritance, therefare 590 WILLS AND SUCCESSION 501 BOOK THREE ~ SUCCESSION "itl I ~ General Provisions ‘as used in this Code, should be understood in both of those two con- cepts. Definition of Succession. — Succession or inheritance *Qanun al-Ahwal al-Shakshiyah” has been defined in the following words: “Inheritance is the process by which on the death of the owner, the right of ownership to his property gets transferred, without any favor or consideration to the entitled ones.”: Another definition is that: Inheritance is an involuntary devolution of property through which the estate of a deceased person gets transferred to the heirs as his or her suecessors.”* Succession, a Mode of Acquiring Ownership; Meaning. — Succession is considered in law as a mode of acquiring ownership of properties, because the ownership by a person of certain proper- ties are transmitted and passes by his death to his heirs or oth- ers who acquires them according to his will or by legal succession in accordance with law. Succession is considered a derivative mode of acquisition of ownership over properties because the subsequent owner's right to the properties is subject to whatever conditions the same may have, as when still held hy their predecessor in interest. Art. 90. Suecessional rights; when vested. — The rights to succession are transmitted from the moment of the death of the decedent. The right to succession of any heir who predeceases the decedent shall not be transmitted by right of representation to his own heirs. Notes/Comments Sources of Article. Art. 777, Civil Code, “The rights to succession are transmitted from the moment of the death of the decedent.” Tradition. — The Prophet did not inherit from his grandfather in representation of his father. Custom. — The rule against representation was among the pre-islamic custom of the Arabs that found its way into the Muslim law on inheritance.* "angilarRahman, CM.PLL, Vol.I,p. 408, Citing See. 217, Moroccan Law on Inheritance, bid, Sec. 282. SIIN.D. Anderson, Islamic Law in the Modern World, Cited, pp. 257-258, J Rasul, Muslim Code,002, COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE Rights to Succession; When Transmitted. — The right to succession whether by will (wilaya) or by law or mandate of Shani’, gorpmences from the moment of death of the person to be succeeded i his tight to his properties. Before the happening of that event, fil those who are entitled to inherit from him are merely expectent heirs and do not have rights of ownership to the properties of the former. Hence, before death supervenes, the expectant heir even sf amed in the will of the testator, can be changed by him or removed from his will. But, once death occurs, under the present article, foe that moment on, all the properties, transmissible rights and oblige, tions ofthe decedent passes at once to the heirs, excopt that respeet, ing his obligations that remains subsisting after his death, the heirs shall not be liable beyond the total value of the hereditary estates ‘The share in the inheritance is due only after the opening of the right to succession.* No Right of Representation under Muslim Law. — The Civil Code defines representation as follows: “Representation is « Tight created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the right which the latter would have if he were living or hhe would have inherited. This concept of representation which ie recognized under the Civil Code is not observed under the Muslim law, for under the latter law, there is no succession by right of representation. Thus, for instance, if A dies leaving a son, B, and @ grandson B, son of his predeceased son C, B, shall succeed alone to the estate of A; there being no representation, E, cannot sueceed in representation of his father C, A’s predeceased son. And any bequeath of any portion of an expected share in A’s property made by C shall not take effect." Under the Muslim law, the rule on exclusion of heirs is to the effect, that, “in the same line, the relatives nearest, in degree excludes the more remote.”* The theory of representation is not known to Muslim law. Under its provision the estate of a deceased person devolves upon his heir at the moment of death. ‘The estate vests immediately in ‘See Art, 196, PD. 1088, Abdul Wabid V. Duran Bibid (1885) 11 Cal, 997, 121 A.61;M.A, Mannan, Biro of Moh, Law, p, 868, ‘art. 970, Civil Code, M.A. Mannan Prine. of Moh, Law, p. 67; ct. Daw Khaton v, member, Federal (Commission, PLD 195 Leh. 89 “Art, 123(@), PD, 1083, F WILLS AND SUCCESSION BOOK THREE — SUCCESSION ‘Title I — General Provisions each heir in proportion to the share ordained by Muslim Law. As the interest of each heir is separate and distinct, one of the numbers of heir cannot be treated as representing the others.* It should be noted, however, that under the Code, a testator who dies without having made a bequest in favor of any child of his son who predeceased him, or who simultaneously dies with him, such child shall be entitled to one-third of the share that would have pertained to him from the father if he were alive. This is an innovation (bida'a) of the foregoing rule under the Muslim law regarding non-succession by representation, which many Muslim. countries in recent times have made in their personal law on inheritance on reason of equity. However, the son's son here is not succeeding by right of representation but in his own right to receive a bequest by operation of law. ‘Vested Inheritance; Meaning of. — Since the rights to succession are transmitted from the moment of the death of the decedent, from that time on, the right to inheritance gets vested upon the deceased heir or heirs who are qualified to inherit under Islamic law. By vested inheritance, therefore, is the share in the inheritance which becomes vested in the heir or heirs from the moment of the death of the decedent, such that in the event that if any heir dies prior to the distribution of the inheritance, the share that vest in that heir passes to his own heir or heirs who are entitled to inherit from him at the time of his death, Mlustrative Examples 1. When heirs of a deceased heir are the same as the original heirs. — When one of the heirs of a deceased person has died before a partition of his property has been made, and the heirs of the second deceased are the same persons who are heirs of the first deceased, one partition will suffice for both cases, Thus, when the heirs are sons and daughters and one of either of them dies, he or she has no other heirs than the surviving brothers and sisters, the property is divided among the survivors in the proportion of two shares to a male and one to a female. *Dr. MA. Mannan, Prine. of Moh. Lav; Cit. Sakira Begum vs. Shahar Binoh (1995), 10 Lack 449 at 458, 152 IC. 42 (85) A.. 62,67 ‘See Art. 107, PD. 1088.504 COMMENTARIES ON THE CODE OF MUSLIM ROA OF THE PHILIPPINES WITH JURISPRUDENCE ¢ oPOns See Sos 2. When they are different. — When amo eins second decease, there are persons whe are not hee the first deceased, the estate of the first deceased is tp be divided, to ascertain the share of the second deceased, and then the estate of the second deceased is to be divided amongst his heirs; and if his share can be divided among them without a fraction, there is no necessity for ‘any further operation. Thus, when the heirs of the first deceased are son and a daughter, and the son dies before partition leaving a daughter and his sister, the estate of the first deceased is tobe divided into three parts, whereof ‘vo being the portion of the son, a half (or one of them) goes to his daughter, and his sister takes the rest." Takaruz, Waiver By Heir of Share in the Inherit vis-é-vis renunciation of chance of cece tae ‘means waiver of share in the inheritance by an heir after the right to inheritance vests in him, and which takes place when all the essential requisites (surut) of suecession are present; this is valid Whereas, renunciation of chance of snecession (epee eucccssionia), which is the chance or possibility of a Muslim expectant heir or heir, apparent of succeeding to an estate cannot be the subject ofa valid Art. 91. Requisites of Succession. — No settl estate ofa deceased person shall be effected unless, (a) The death of the decedent is ascertained; ) The successor is alive at the time of the death of the (©) The successor is not disqualified to inherit, Notes/Comments Sources of Article. — Muslim Law jurisprudence. Conditions of Succession, — four eondit inheritance: mn. — There are four conditions for 1. Proof of actual or legal death of the deceased; "Bailie, Digest of Muhammadan Law, p. 7128 "M.A. Mannan, Prine. of Moh, Law, ear Bare Sea aes + D. 68; Cit. Khamin Jan v, Jan Bebec y WILLS AND SUCCESSION 595 BOOK THREE — SUCCESSION Title I — General Provisions 2. Proof of actual or legal life of the heir on the death of the ancestor; 3, Degree and kind of relationship; and 4, The existence of estate open to inheritance. Still another gives these conditions as follows: 1. That the ancestor must be factually or legally dead; 2. That the heir at the time of death of the ancestor must be alive, factually or legally; 3. That the relationship between the heir and the deceased be known s0 as to establish entitlement; and 4, That there be property for inheritance. Essential Elements (Arkhamul-Mirath) and Requisites (Surut) of Inheritance or Succession. — Ruk’n is the singular of Arkhan (essential element). Muslim jurists make a distinction between essential elements and conditions (Surut, sing. sart) of inheritance. ‘According to them, the formor forms part of the right of inheritance (al-Waratha), while the latter are preconditions or pre-requisites for the exercise of such rights. These essential elements are: (1) Death of a decedent (Al-Murath); (2) Presence of heirs (Al-Warith); and (3) Estate left by decedent (Al-Mauruth); and the essential requisites which are the conditions precedent before the settlement of the estate under the law of inheritance are: (1) Proof of the death of a decedent (Maul al-Murath); (2) Survival of the heirs of the decedent (Hayath el warith); and (3) Ascertainment of the basis of inheritance (Al ilm bi jihati al irth). ‘The present code does not make such distinctions. Requisites of Succession or Constituents of Inheritance. cession in order to take place under the Code, the following condi- tions must be established: 1. Death of the decedent is ascertained; 2. The successor is alive at the time of the death of the decedent; — Sue- WTanjibur Rahman, CM.PLL., Vol. p. 416, Succession, Sec. 284. bid. p. 416; Mawdud; Al-Dchtyar i talilal Mukhtar, Cairo, 1370 AHL, 1961 AD, Vol. Vp. 85596 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE. 3. The successor is not disqualified to inherit; 4. Other authorities on Muslim law gives another condition; That there be an estate (Tareka) left by the decedent at the time of his death. Death of the Decedent. — The first requisite of succession is the death of the person whose properties are subject to successional rights. The right to succession arises when the actual or natural death of the person is ascertained or he is presumably declared dead by decree of court according to law. Actual or natural death means the cessation of life which takes place when all the sensorial functions of the human body stop through the cessation of respiration, the human body becoming a mere corpse and legal personality of a person is thereby extinguished; while death by law or assumed death is that where itis unknown whether a person is alive or dead, and the court, because of that circumstance passes a decree declaring him dead, in which case, the presumptive death of the person commences from the finality of the decree of the court declaring him dead. However, a person who is declared presumptively dead, if actually living elsewhere, his legal personality is not affected Requisite; Heir(s) (warith) Who Survive the Decedent. — The second requisite of succession is that there should be an heir or warith who survives the decedent. The word warith is derived from the word “irth.” The literal meaning of the word “irth” is remainder. ‘The heir is called “warith” because he remains alive after the death of his ancestor. As if he is a “remainder” of the family of the ancestor and owns a share as a successor of the ancestor in respect of the ancestral property. With the death of ancestor, the ascertainment of the life of the heir is essential, whether he is actually alive or is assumed to be alive, for instance, the child in the womb of the mother. The share therefore, of the child in the womb, assuming him to be alive, shall be kept aside. After the child is bom alive, the estate shall be held to be his property. Indeed in circumstances where on the death of the ancestor the heir being alive not being known, there shall be no suecession between them, as in the cases of those who die by drowning together, or by getting burnt together or by getting crushed together under a fallen building, ete. This relates to cases ‘Sec. 219, Moroccan Law, Mudawwanatul Ahwal Al-Shalbhsiyyah, “anjilur-Rahman, CMPL., Vol I, p. 404. ¥r WILLS AND succESsION 597 BOOK THREE — SUCCESSION ‘Title I — General Provisions when the ancestor and the heir both die together and it is not known who died first." Under the Code, in case of simultaneous death, the following rule is provided: “If, as between two or more persons who are called to suc- ceed each other, there is a doubt as to which of them died first, whoever alleges the death of one prior to the other shalll prove the same; in the absence of such proof, itis presumed that they died at the same time and there shalll be no transmission of rights from one to the other. However, the successional rights of their respective heirs shall not be affected.” Requisite; Successor not Disqualified to Inherit. — The third essential requisite of succession is that the heir is not disqualified to inherit under the law, for even if there be an heir who is alive at the time of the decedent's death, but such heir is the one who has intentionally caused the death of the decedent, or has apostatized (murtad), or of different religion from that of the decedent,” such heir shall be disqualified from succeeding to the decedent estate. In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death. Heirs who in particular ease do not succeed by reason of disqualification on any ground shall not exclude others.” However, in the case of difference of religion, the Code under Art. 107, provides: “The parent or spouse, who is otherwise disqualified to inherit in view of Article 93(c), shall be entitled to one third of what he or she would have received without such disqualification. ‘The parent or spouse here are by provision of law given a bequest out of the estate of the decedent who gets entitled to it not by reason of the right of succession. This is another innovation (bida’a) under the Code to the Muslim law on inheritance on humanitarian and reason of equity. Requisite; Estate ofthe Decedent. — The fourth essential requisite of sucesion that the decedent lf behind properties tha formshis estate (1 subject to inheritance by his heirs or other persons ented thereto, ence, if a person dies and leaves behind him no inheritable property, there shall arise no question of inheritance. "bid, ‘art. 12, PD, 1088, Art. 93, PD. 1083, Art 125(@), PD. 1088,598 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS ‘OP THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE Art, 92. Inheritance (mirath). — The inheritance of a person includes all properties of any kind, movable or immovable, whether ancestral or acquired either by onerous or gratuitous title, as well as all transmissible rights and obligations at the time of his death and those that accrue thereto before partition. Notes/Comments Sources of Article. Quran IV: 7; “Men shall have a portion of what the parents and near relatives leave, and women shall have a portion of what the parents and near relatives leave, whether there is little or much of it;” Muslim law jurisprudence and Article 776, Civil Code; “The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death,” also, Art. 781; “The inheritance of a person includes not only the property and transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of succession.” Meaning of Inheritance. — As this writer has pointed out herein earlier under the general principles of Muslim law, the term inheritance is generally understood as succession (Arabaic, faraiz, miraz,* al-mawarith). However, under the present article of this Code, the term inheritance refers to the entire mass of the decedents properties and all his transmissible rights and obligations left after his death, which is properly the estate of the decedent. In connection with our discussion of the present article of this Code, we shall treat the word inheritance as referring to the estate of the decedent, which is called in Muslim law as “Tarka or Tareka.” ‘The word “tarka” (or Tareka) is derived from the word “tark” and in the meaning of*matruk” which literally means “property left.” “Tarka” technically, in the Law of Inheritance, is that property which the deceased (ancestor) leaves behind as his lawful property; “Tarka” in Bahr al-Raiq has been defined thus: “Tarka” means that property which the deceased leaves behind him and there is no right of another particular person attached with that property. It means that with which the right of some other person is attached shall not Thomas Patrick Huges, Dictionary of Islam, p. 207. ¥ WILLS AND SUCCESSION 598 ‘BOOK THREE — SUCCESSION ‘Title I — General Provisions form part of the estate of the deceased until the liability on that property is paid off ‘Thus, the estate in inheritance is that property which a person on his death leaves behind him and the same is his lawful property though it may not have come under his possession. For instance, person applies for the purchase of some shares of a company and dies, the shares are alloted to him after his death; the shares in the circumstance shall be considered to be his estate; also, the pension of the deceased which during his lifetime, had accrued against the government or other institution shall be included in the estate left by him” ‘Sunnis Doctrines Hanafi School. — Estate of the deceased, according to the Hanafis, is interpreted to mean that property of the deceased over which there is no right ofa stranger. Hence, the property over which there exists a right of stranger, for instance, mortgage, etc., shall not be included in the estate until the mortgage money is paid or it has ‘been realized from the property itself ‘Maliki School. — According to Malikis as well, the right of some other person in the estate of the deceased attached to the property itself shall be considered as having excluded the said property from the definition of the estate. Shafi School. — According to Shafi'i jurists, every thing that belongs to man in his life and what he leaves behind after his death whether it be the properties or rights shall be called his estate. Indeed, from the writings of the author of Muhgni al-Muhtaj, itis clear that according to the Shafi as well, if a stranger's right is attached with the estate, for instance, it is under mortgage, that property shall not be termed as estate of the deceased till the stranger's right does not lapse or is not paid up. "TanjurRahman, CMP, Vo. . 405; Citing Ibn Nigoym, Zaymudain ‘Ahmad Torah (970 AHL); Al Bahr ab-Raig Dar al-estaalkabra, Cairo, 1034 ‘Ait Vol. Isp. 48 bid, p. 406-40. oid 408. bid” iting AL-Abi, Abdul Sara Jawaar al AKL Matba’MustafeAL-Babi, Cairo, 1966 AH, Vol 1.827 oid. Ging Al-Sharbini, Muhammad al-Khati Mughnial-Muhta, Matha Mustafa alBabl, Cairo, 1977 AHL, Vol I, p 2600_ COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE Hanbali School. — Same is the case with Hanbali jurists, According to them as well, the estate is that property or proprietary right which the deceased leaves behind after him. That is why it ig called wiratha.* The Heritage of a Deceased Muslim. ~ The heritage of a deceased Muslim comprises the following things 1. That which the deceased own before his death in the form of: (a) tangible things; (b) debts; (©) Any pecuniary right, eg., an option (haqg-al-khayar) in a contract of sale; or the right of pre-emption; or the right to blood money (qiyas) for murder or injury. 2, That which the decedent comes to own at his death, e, indemnification for unintentional homicide (al gati Khata), where the heirs opt for indemnity instead of giyas (blood money). The same is true with regard to indemnification for damages to the property of the de- ceased, 8. ‘That which the decedent comes to own after his death, eg. the natural or civil fruits accruing to his properties after his death.» Estate: Movable Properties (Manzul). — Movable properties are things movable by their nature that are such as may be carried from one place to another, whether they mave by themselves, as cattle, or cannot be removed without extraneous power, as inanimate things.” ‘Suppletory Law. ‘Under Art. 416 of the Civil Code, the following things are deemed to be personal property: 1. Those movables susceptible of appropriation which are not included in the preceding article; ting Yusuf Musa, op. cit, p. 72 MJ. Maghniyyah, Five Schools of Muslim Law, pp. 462-9. "Bouvier’s Law Dictionary, Vol I, p. 2265 r WILLS AND SUCCESSION 601 BOOK THREE — SUCCESSION ‘Title I — General Provisions 2, Real property which by any special provision of law is considered personalty; 8, Force of nature which are brought under control by science; and 4, In general, all things which can be transported from place to place without impairment of the real property to which they are fixed.” There are some properties which while forming part of an immovable properties are considered as immovable, but once removed and taken therefrom for purposes of personal consumption or use, becomes movable properties, ie., water from a well, fruits of fruit trees from lands, ete., these falls within the classification of movables susceptible of appropriation which are not included among the enumeration of the law under Article 415 of the Civil Code. In fact, under the Chattel Mortgage Law (Act No. 1508), growing crops can be considered as personal property for purposes of a mortgage contract involving the same. Generally, “trees, plants growing fruits, while they are attached to the land or form an integral part of an immovable, are considered immovable properties.”* Real property which by any special provision of law is considered personalty”™ as to fall under the classification of the law on movable properties. Also, force of nature which are brought under the control of men by science; i, electricity, light, oxygen and the like are considered movable properties; and, things which can be transported from place to place without impairment of the real property to which they are fixed, ie., water generator or engine for land irrigation, farm tractors are likewise movable properties. ‘The following are also considered as personal property: 1. Obligations and actions which have for their object movables or demandable sums; and 2. Shares of stocks of agricultural, commercial and industrial entities, although they may have real estate.* Estate, Immovable Property (Arz, balad or mulk). — By immovable property means “Property which, from its nature, desti- Art. 416, Civil Code, !'Sibalv. Valdez, 50 Phil 512 Art. 415(80), Civil Code. ‘Art. 417, Civil Code,“+ ssa axe. sUnuSPRUDENCE & SPECIAL PROCEDURE Ration or the object to which it is applied, cannot moved itself or be removed.” Under Article 415 ofthe Civil Code, the following are immovable Property: 4. Land, buildings, roads and constructions ofall kinds adhered to the soil; 2 Trees, plants and growing fruits while they are attached to the land or form an integral part of an immovable; 3. Bverything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object, 4 Statues, reliefs, paintings or other objects for use or ornamen. {aiion placed in buildings or on lands by the owner of the tay earn, in such a manner that it reveals the intention toy tach them permanently to the tenements; 5. Machinery, receptacles, instruments or implements intended by the own i Be carried on ina building or on a piece of land, and which we, 6 Animal houses, pigeon-houses, bechives, fish ponda or breeding Places of similar nature, in ease their owner has place then w= Ettaced beat With the intontion to have them permanently Stachel ‘0 the land and forming a permanent part of ft he, animals in these places are included; 7. Fertilizer actually used on a piece of land; 8. Mines, quarries and slag dumps, while the matter thereof forms Part ofthe bed, and waters either running or stagnant; 9. Docks and structures which, though floating, are intended by their nature and object to remain ata fixed place on arrive: lake or coast; and 10. Contracts for public works and servitudes and other real rights over immovable property. “Bouvier’s Law Dictionary, Val. 1, p. 494, Pr WILLS AND succession 608 BOOK THREE ~ SUCCESSION ‘Title T— General Provisions purchase, or gratuitous such as gifts, or otherwise other than by descent o succession.» Estate; Transmissible Rights and Obligations and Their Fruits. — By transmissible rights and obligations means thoes actually refers to the right to own the property, the second, is thy right to use, enjoy or exercise whatever rights arising frors one's {0 2s @ right in rem (haggun qainum bi napsihi); and the third; is referred to as right in personam. However, regarding the deceder ts Shiigations, the liability of the heirs of a decedent for the paytent ofthe latter's debt shall not exceed the hereditary estate” which, syeans that the decedent's estate shall be chargeable to answer for bis obligations, and if the decedent's obligations exceed hic total Fiate the heirs cannot be held liable to answer for their ancestor's debt with their own separate properties, ‘After the death of the decedent, whatever accrues tothe proper- {ies left by him prior tots partition, such as the products of lars eat the young and other products of animals, the rents of buildings, the igre Bouvier Law Dictionary, Vo. p 192; Citing 9 Wash, RP. (th Ba) 422, 412, “Tanji-ur-Rahman, CMP.L., Vo. It, p. 411. Art 196, PCD. 1088,604 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS (OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE price of lease of lands and other property, or the interest of money deposited, or dividends of shares of stocks, prizes of lottery tickets, shall form part of his estate which shall be transmitted to his heirs, Art. 93. Disqualification to succession. — The following shall be disqualified to succeed: (a) Those who have intentionally caused directly or indirectly the death of the decedent; (b) Those who have committed any other act which constitutes a ground for disqualification to inherit under Islamic law; and (©) Those who are so situated that they cannot inherit under Islamic law. Notes/Comments Souces of Article. Hadith; Abu Huraira reported that the Holy Prophet said: “The murderer shall not inherit;”* Osamah b. Zaid reported that the Messenger of Allah said: “No Muslim inherits a polytheist nor a polytheist inherits a Muslim."» Hadith, Abdullah-b-Amr reported that the Holy Prophet said: “People belonging to two (different) faiths do not inherit from each other.” Impediments or Disqualification to Inheritance (Muwani- ul-irth). — Generally, Muslim law has the following as grounds for disinheritance: 1. slavery; 2, murder or homicide (Qat'); and 8, difference of religion. Before slavery was outlawed or abolished by the Muslim legal system, it was one of the impediment to inheritance for the reason that during the pre-Islamic Arabs, a slave is then considered the property of his master and therefore, has no legal right to inherit. ‘This concept, however, is already outlawed and finally, abolished ‘ishkat-ul-Masabih, Al-Hadiz,p. 281; cit. Hadith by Tirmisi; Ibn Mijh. Ibid, p. 881; et. Agreed Hadith Ibid, p. 8821; cit. AlBukhari; Sahih, Karachi, Vol. Hp. 1001; Nawawi, Sahih, op. eit. Vol. XI, p. 52. F WILLS AND SUCCESSION 605, BOOK THREE — SUCCESSION ‘Title I~ General Provisions from the Muslim legal system, hence needs no further elaboration. We shalll, therefore, proceed to discuss the two other causes, murder or homicide (qat')) and difference of religion. Disinheritance on Ground of Causing the Decedent's Death. — According to the tradition of the Holy Prophet, it is re- ported that: “The murderer shall not inherit.”* Another tradition is reported wherein it is stated, “One who murders any one, the mur- derer shall not be the heir of the murdered, though there be no heir of the murdered except the murderer; even though the father or the son (of the murdered), there shall be no inheritance for the murder- er.“ Under the Muslim law, homicide in relation to disinheritance is classified into: (1) Intentional homicide; (2) Unintentional homicide; and (3) Death by mistake. All the four major Sunnis are unanimous in their opinion that intentional homicide disqualifies the culprit from inheriting from his victim. However, there is a difference of opinions regarding unintentional homicide. The following are the views of the four major Sunnis. ‘Sunnis Doctrines Imam Shafi holds that homicide (Amad) is the result wherein the striking is intentional whether or not death was intended. According to him, intentional homicide (Qatl Amad) is that wherein the act and the result of the act (the death) are both intentional. Ifthe act is committed deliberately but with an insufficient or inadequate means by which death would generally not occur but death occurs, it is unintentional homicide (Qatl Shibh Ahmad), Imam Hanbat appears to be in agreement with Imam Shafi; whereas, homicide under mistake according to Hanafis, is one that occurs during a valid action without any intention or deliberation. The latter is of two kinds: (1) Homicide by inadvertence (Qatl Qaim Muqam Khata); and (2) Indirect homicide (Qatl bil Tasabbub). In the case of the former, the person committing it takes some step toward doing an act other than by killing any one but commits a mistake in the act resulting in the death of another person, as for instance when a person is driving a car which accidentally collides with another person’s car killing the latter. While death by indirect, homicide (Qatl bil tasabbub) is, that kind of homicide which is not the direct cause of an act by the “Tid. p, 881; cit. Temi and Thm Majah. “Hadith reported from Hadrat Ibn Abbas, Qudamah, Vol. VI, pp. 199-194606 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE, offender but his act (as an initiative) becomes the cause of homicide resulting from a remote cause indirectly assigned to him as for example, when a persons digs a well on which another person who falls on it dies, Specifically, the effect of death upon the right of inheritance of the person who cause it, according to the four major sunnis are: According to the Hanafis, the person who commits homicide without justification gets disinherited from any property ofthe per, son so killed whether the offense is committed intentionally or ig committed by mistake. That is, all the four cas homicide; (b) quasi-intentional homicide; (c) the homicide by mie. take; (d) indirect amounting to mistake, the offender gets deprived of the estate left by the person so killed, except if the person caus- ing the death is an infant or an insane; and the bequest is unlawful whether it was made before or after the injury causing the death.» Maliki View; Imam Malik, on this question, differs from the Hanafis. He, in case of homicide by mistake or unintentionally, in self-defense or by order of the judge or mandate of the law, does not hold the offender to be deprived of the inheritance from the said ancestor. According to the Malikis, the testator hao the power uf condoning the offense committed on his person, and if after receiving the mortal wound he makes a wasiat in favor of the person causing the wound, it will be presumed that he pardoned the offense and the bequest would be valid« Shafffi View: Imam Shafi, concerning the deprivation of inheritance from the murdered person, holds an extreme view. He upholds deprivation of the inheritance not merely in case of homicide by mistake but if the person concerned with man-slaughter of his ancestor, or in any manner whatsoever, he shall stand deprived of the inheritance from him. Thus, according to him, the compliance in a false case of murder resulting in execution of the accused, the executioner, the witnesses, all of them shall stand deprived of the inheritance from the person executed and they shall not get anything from the estate left by the former.® The same is the case where the murderer is a child or a lunatic. ‘Tanjil-urRahman, CM-PL., Vol. I, pp. 691-595; op. cit, Abu Zahra, p. 126. “8, Ameer Ali, Muh, Law, Vo. I, p- 588 Gia p- 694; op. eit. AL-Abi, Vol I, p. $88; Al-Saraleshi, Vol. XXX, pp. 47-49. #8, Ameer Ali, Muh. Lav, Vol. T,p: 588, “Ibid. pp. 594-595; op. cit, Thn Qudamah sl-Magdisi, Vol. VI, p. 163; Abu Zara, p. 124, r WILLS AND SUCCESSION cor BOOK THREE — SUCCESSION Title ~ General Provisions Hanbali View: According to Hanbali school of Figh, every such murder deprives the murderer of the inheritance from the person murdered in consequence of which the murderer is held liable to any kkind of punishment, or whether the punishment consists of “blood for blood” or “blood money” or “kaffarah” (penalty). But the homicide which is not held punishable shall not be the cause of deprivation from inheritance to the estate of the deceased ancestor.* The latter view of the Hanbali’s is more in conformity with the Code. Disqualification on Ground of Apostasy. — Apostasy from Islam (Arabic, irtidad) means turning back from Islamic faith to any other faith, or becoming an unbeliever, or having no faith at all. A Muslim who renounces Islam (ridda) as a religion becomes an apostate (murtad). As regard the Muslim law on inheritance, apostasy is a ground for disinheritance. The person who apostatize cannot inherit from his Muslim relations. ‘The general principle involved in the case of husband's apostasy is that an irrevocable divorce ensues between the couple. But a basic prineiple of the law of inheritance in Islam is that the legator as well as the legatee should belong to the same religion. Consequently, a wife should be automatically disinherited on the husband's renouncement of Islam. But the jurists place a husband committing apostasy in the category of a person suffering from a fatal illness to be classed as one running away from the responsibility of a legator to his legatee — wife. Consequently, the wife shall be entitled to inherit from her apostate (legally dead) husband. Sunnis Doctrines According to Imam Abu Hanift, whatever an apostate has earned in the state of his being a Muslim, shall be inherited by his ‘Muslim heirs and whatever his properties are in the state of his being an apostate shall be the property of the Bait-ul-Mal. The Hanafi jurists of kufa and Basrah, the sahabit like sayyidinah Ali and Masud supported Imam Hanifah and Sufran al-Thauri say that he can be inherited by the relatives. They arrive at this conclusion by applying qizas that since he is going to be inherited by the Bait-ul- “Ibid, p. 96; op. cit, Ibn Qudamah al-Mugdisi, Vol. V, p. 163; Abu Zahra, p24, ‘ibid. p. 319; Citing Damad Afandi; op. ci, Vol. I, . 429; Ibn Human, op. et, Vol I, p. 182.608. COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE Mal (Muslim public treasury) because of his Islamic relationship, he is closer to his relatives than even the public treasury, because he has two relationship between him and his relatives while with the public freasury he has only one relationship, which is Islam.” According to imam Malik and Shafi, the apostate is neither — himself the het or anyone, nor anyone is the heir tothe estate left by him. Consequently, whatever he earns whether in the period of his being a Muslim or 2, the period of his being an apostate is the property of Bait-ul- Mal > ‘The latter view is the one in accord with the Code Disinheritance on Ground of Difference of Religion, ~ On the basis of the tradition from the Holy Prophet that, “The people belonging to two (different) faiths do not inherit from each other,” the assertion of most of the companions of the Prophet, as well as the view of the Hanafis and the Shafts, a Muslim shall not inherit from non-Muslim and a non-Muslim shall likewise not inherit from his or her Muslim relation, According to Imam Ahmad 8. Hanbal, however, if a non-Muslim heir of a Muslim accepts the faith of Islam before the division of the state, he shall be an heir. However, according to the Shafiis, Maliki and the Hanafi schools, hho does not." However, under the law on wills, the difference of religion between the leator and legatee does not bar the getting of legacy. In line with the later rule, the Code under Article 107 gives a bequest by operation of law under the following condition: “The parent or spouse who is otherwise disqualified to inherit in view of Article 93(c), shall be entitled to one-third of what he or she would have received without such disqualification.” Apostasy (Murtadd). — A murtadd from Islam does not inherit in the opinion of the four schools, irrespective of his apostasy being a fitrah, a born Muslim who apostatizes, or a Millah one born to kafir parents (unbeliever), who become a Muslim and later desert his faith except if he returns and reforms before the distribution of the heritage. There is a consensus among the schools that a person who denies any of the established and known doctrines of the faith and "Doi, Sharf, p. 290 “Bid, ‘bid. pp, 606-606; Al-Sarakshi, op cit, Vol. XXX, p. 81. ALjurani, op. city p n Gudamah al-Maqdisi, op. et, Vo. VI, p. 171. Muh. J. Maghniyyah'5 Schools of Muslim Law, p, 468, “Ameer Ali, Muhammadan Law, p. 19. ‘=M.J. Magniyyah, 6 Schools of Muskim Lave, p. 469, op. cit, l-Mughari, Vol. 6 r WILLS AND SUCCESSION 609 BOOK THREE — SUCCESSION Title — General Provisions considers a haram as halal or vice versa, making that as his creed, goes out of the pale of Islam and becomes an infidel. To this category also belongs one who attributes kufor to a Muslim.* Likewise Mus- lims are unanimous in holding that a Ghulat are polytheist (Mush- rikum) and do not belong to Islam and Muslims in any manner.” Effects of Parents Apostasy or Change of Religion Upon Child. — The change of religion or difference of religion of parents have offect on the status of a child, property relations of the parents and the successional rights among the spouses and their heirs. According to Sayed Ameer Ali, citing the case of Bhagwan V. Drigijai (1913) in India, when either of the parents is a Muslim, the child under Muslim Law is to be presumed a Muslim until he is able tomake a choice or upon attaining the age of majority. Muslim jurists are agreed that a child follows the religion of the father (in case of a Muslim father) while still a minor, irrespective of the sect or religion of his mother. Art, 94. Succession from acknowledging person. — Without prejudice to the order of succession of heirs, mutual rights of inheritance shall obtain: (a) Between the acknowledging father and the ac- Inowledged child; and (b) Between the kinsman acknowledged through another person and the acknowledger. Notes/Comments Sources of Article. — Custom; Muslim Law Jurisprudence. Succession between Persons Whose Relationship is Established by Acknowledgment. — The Code recognizes two kinds of relationship that gets established through acknowledgment in connection with the law on succession. These are: 1. Direct acknowledgment which takes place when a person di- rectly acknowledges another as his son or daughter; and “MJ. Magniyyah, 5 Schools of Muslim Law p. 470. bid, p 468 bid10, ComameNTaRtES ON TH cone OF MUSLIM PERSONAL, ‘OP THE PHILIPPINES WITH JURISPRUDENCE & SPINS SRO np 2. Indirect. acknowledgment or acknowledgment throu, which is that which takes places when a person tcnowisg, his kinship with another in a manner that the relationshiy’sr the acknowledged one at first gets established with anh person, In the case of direct acknowledgment, the acknowl an affirmation that another person is his son or — case, the lineage of the acknowledged one shall ‘get established with the acknowledger directly; thereafter, it shall get established with the father of the acknowledger. Thus, the acknowledger shall first be held to be the father, and thereafter, the father of the acknowl. edger shall be held to be the grandfather. In this kind of acknowl. ees ene acknowledged becomes the direct heir of the: ac »wledger and so of others, and he in it it of the deceased. inberts ko anyother her In the case of indirect acknowledgment of kinshij 1e acknowledger acknowledges the kinship in a manner that the wnshig of the acknowledged one at first gets established with another person; thereafter through another person, it ‘gets established with the acknowledger. For instance, a pereon ia acknowledged Ww be the brother or sister or uncle of the acknowledger. In this case, the kinship shall at first be established with the father or grandfather. Through them, it shall get established with the acknowledger and he shall be held to be the brother or sister ‘or uncle of the acknowledger. In this kind of acknowledgment, the person acknowledged gets the estate of the acknowledger deceased alone (and no other relative of the deceased), provided there is no other heir of the deceased or the Mawla al-Mawalat.« In the case of direct acknowledgment of kinship, the acknowl- edged person shall become the heir (as son or daughter) of the ac- knowledger and shall be entitled to inherit from him as such in the order of preference of heirs, while in indirect acknowledgment or acknowledgment of kinship through another, the acknowledged per- son shalll be entitled to inherit from the estate of the acknowledger alone, and in the order of preference of heirs under the Code comes after the sharers, residuaries and distant kindred. "bid, p 642. ‘Art. 99), PD, 1089, WILLS AND SUCCESSION ont BOOK THREE ~ SUCCESSION Title I — General Provisions Art. 95. Succession by illegitimate child. — A child who was the cause of the mother’s having been divorced by lian shall have mutual rights of succession only with the mother and her relatives. Notes/Comments Sources of Article. (Custom; Muslim Law Jurisprudence. Succession by illegitimate Children. — Under the Muslim law, illegitimate children with regard to the law on succession are classified into: Walad-al-zina (child of fornication). — Wegitimate child born of a man and a woman without the benefit of marriage between them; and Walad-al-lian (child of imprecation). — Imprecatory child, one born of a man and a woman who are married to each other, but the child was the cause of the mother’s having been divorced by li’an by the husband. Walad al lian or walad al-mula-arbah (child disowned by the father). — According to Imam Shafi by impreeation itself, and according to the Hanatis because of the Qadi’s affecting separation ‘on imprecation between them, the lineage of the child snaps from the father and is accepted with the mother alone. The child of the imprecated woman is, as if, without a father. Same is the case of illegitimate child. Hence, the Asbah of imprecatory and illegitimate children are also the relatives of the mother. Both of them gets inheritance from their mothers and her relatives. In such case, the imprecatory and illegitimate children’s father or father's relatives cannot claim anything from such children’s estate, and vice versa. Walad al-zina (Illegitimate child). — The four Sunni schools concur that an illegitimate is similar to a child disowned by the father. The schools concur that there will be no mutual inheritance between the couple if the husband accuses the wife of adultery and between the child born thereafter and its father and paternal relatives. However, the child, its mother and maternal relatives will inherit mutually. While inheriting from the child, its relatives “Tbid, pp. 680-581; op cit, Abul Samargandi; Khazanatul Fiqh, Baghdad, Vol, 412; AlMagdis, op. cit, Vol, VIL, pp. 121-126.612. COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS. OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE through both parents and relatives through the mother enjoy the same status. Hence, his full and uterine brothers are considered equal in status. The reason for disentitling an illegitimate child from inherit. ing from the father and the latter's relative is shown in the follow. ing comments: Prof. Coulson in his book, “Suecession in the Muslim. Family,” writes: “Although there are no mutual rights of inheritance between a father and his illegitimate child, illegitimacy is not tech. nically an impediment to inheritance in the same way as homicide or difference of religion. The blood relationship or nasak, which grounds a right of inheritance, must be legal relationship, and since there is no legal tie of nasak between a father and his illegitimate child or between their respective “legal” relatives, the root cause of inheritance simply does not exist. Just as the partners in an invalid marriage are not “husband” and wife,” so a person and his illegiti- mate offsprings are not “father” and “child” for the purpose of inheri- tance." Inheritance from Tegitimate Persons. As regard inheritance from illegitimate persons, Prof. Coulson further states: “Where the praepositus is an illegitimate person there is a divergence of view in Sunni law as regards the rights of inheritance of the maternal relatives.” Sunnis Doctrines According to the majority, the Maliki, Hanafi and Shafi schools, ‘the mother andherrelativesinherit upon normal principles. Subject to the rules of total or partial exclusion, the mother herself, her own mother and her children (the uterine brothers or sisters of the praepositus) will succeed as Quranic heirs, while her other relatives will inherit only as members of the praepositus’ outer family. Thus, an illegitimate person who is not survived by his own son or son’s son will have no agnatic residuary heirs. Hanbali law, on the other hand, holds that the male agnate relatives of the mother are to be considered, for purposes of succession, as the male agnate relatives of her illegitimate child, on the ground that these relatives shoulder the burden of responsibility for the tortious actions of the illegitimate child which entail the payment of compensation ‘SMT. Maghniyyah, Five Schools of Muslim Law, p. 494. Ibid, op. cit, N.J. Coulson, Succession in the Muslim Family, Cambridge, 1971, p. 174 WILLS AND SUCCESSION ais BOOK THREE ~ SUCCESSION ‘Title I~ General Provisions and are therefore entitled, in return, to rights of succession. The mother’s male agnate relatives will, of course, be excluded by any true male agnate of the illegitimate praepositus himself, ic, a son or son's howsoever low, but will otherwise succeed as his residuary heirs... a variant Hanbali view, though a weak authority, is that the mother herself is a residuary heir of the illegitimate child, and as such excludes from succession all her own male relative. Art. 96. Succession between divorced persons. — The husband who divorce his wife shall have mutual rights of inheritance with her while she is observing her ‘idda. After the expiration of the ‘idda, there shall be no mutual rights of succession between them. The husband who, while in a condition of death-illness divorces his wife shall not inherit from her, but she shall have the right to succeed him even after the expiration of her ‘idda. Notes/Comments Source of Article. — Tradition from the companions of the ‘Holy Prophet: Imam Malik reported that Imam Zubri informed him and he has narrated through Talha b. Abdullah b. Awf that Abdul Rahman Ibn Awf divorced his wife while he was ill. When he died, the Caliph Uthman held his wife as his heir while she had completed her term of probation. Mutual Right of Inheritance during ‘Idda. — The present article provides of two situations concerning the effect of divoree upon the spouses’ rights to inherit from each other. The first is in the case of divorce pronounced by the husband who is in sound mind and health; and, the second is while under the condition of death-illness. In the case of the first situation, under the present provision of the Code, the husband who divorces his wife shall have mutual rights of inheritance with her while she is observing her dda. This is so because under the Code, the marriage bond is not finally dissolved till after the expiration of the period of the ‘idda. Hence, after expiration of the ‘idda, there shall be no mutual rights of succession between them. ar pat “Ibid, a it, Muhammad Al-Shaybani; Muwatta, op. cit., Talaq al-Marid, pp.614, Coven TaniEs oN THe CODE OF MUSLIM PERSON iL OO THE PHILIPPINES WITH JURISPRUDENCE & SpuCLal hoot ump The present article of the Code made mentioned pont cn de ila, zihar, fan, but not of divorce initiated by or at the instant ofthe wife, such as divorce by khul,tafwid or faskh, Is there a mutual riots of succession between the spouses during the period ofthe dda ine case of divorce initiated by or atthe instant ofthe wife? AUTHOW OPINION. — It is the humble opinion of the present writer 4k whenever the observance of ‘idda is applicable, except of divest pronounced by the husband under death-illness, the right of mutrat Succession between the spouses in such case exist along the san reasoning that under the Code that the marriage bond is not fri dissolved till after the expiration of the ‘dda, and therefore, whil, the marriage still subsist, the right of mutual succession between the spouses in such case still exist. Under the Code, “Palag or Faskh a5 soon as it becomes irrevocable, shall have the following effects xxx (b) the spouses shall lost their mutual rights of inheritances and divorce becomes irrevocable after the expiration of the peried of the ‘idda as could be gleaned from its provision that a woman whose marriage has been dissolved by divorce can contract non marriage only after the completion of her dda,” and, siuce divorces which has the effect of dissolving the marriage bond at once after its pronouncement such as one single irrevocable divoree pronounced during one tuhr (talaq--bain) or thrice pronounced ‘irrevocsbio divorce during one tubr (talaq bain kubra) are in their strict senes not recognized under the Code.” This opinion finds further support in the provision of this Code on talag stating that: “A husband who repudiates his wife, either for the first or second time, shall have the right to take her back (ruju) within the prescribed ‘dda by resumption of cohabitation without need of a new contract. Should he fail to doo, the repudiation shall become irrevocable (talag bain sugra)* which in effect implies that during the period of the “dda, the marriage bond still subsists.” : In the case of divorce pronounced by the husband while under the condition of death-illness (mera), thore iss difeence of opinion among the aimmah (Doctors of Figh). Art. 54, PD, 1080, ‘Art. 56, PDD. 1085, “art. 462), PD. 1088, ¥ WILLS AND SUCCESSION eis ‘BOOK THREE — SUCCESSION ‘Title — General Provisions Sunnis Doctrines ‘The Hanafi view: According to Hanafi figh, ifa man pronounces irrevocable divorce to his wife during death-illness and dies in that illness during the observance of her term of probation, she shall be entitled to inherit from him whether the divorce be irrevocable or she be thrice divorced. However, ifthe husband dies after the expiry ofher term of probation of divorce, she shall not inherit from him.° Views from Malik: It is reported from Malik that in all divorces pronounced during a man’s illness, the woman shall be entitled to inherit provided the husband dies during that illness. But in this respect, according to Malik and Layth, the widow shall inherit from her deceased husband inspite of her contracting another marriage.” ALShafvis Opinion. — Al-Shafiii seems to have held two views in respect of divorce pronounced during death-illness vis-d- vis inheritance by the wife. According to his former view, the wife shall get inheritance as the husband intending to disinherit is to be regarded in the capacity of an assassin. Hence, his action in its result shalll prove ineffective for the purpose intended and the wife shall not be deprived of her right. However, at a later stage, Al- Shafi held that if the husband pronounces irrevocable divorce in his death-illness and dies in that illness, the wife shall not inherit from him as the marriage then was not subsisting.” The final opinion of Al-Shafiis however, stated in favour of non-inheritance. Al-Shafi', in fact takes the general aspect of such transaction. He is in favour of putting a limit to the transactions of the sick person as they adversely affect the right of heirs. Divorce according to him, however, is a matter that is basically different from pecuniary transactions of a man.* ‘The Hanafi schools state: After the completion of her iddah she becomes a stranger and is not entitled to any share in the inheritance. “TanjiburRahman, CM.P.L, Vol. I, p. 377; Ibn alAbidin, op. et, Vol. H, 'p. 435; Ibn Rusha, op. eit, Vol TT, 82 Pbid., Sahin; Al-Mudawwanah, Vol. V, p. 88. ibid., Ton Rushd, op cit. Vol. 1, pp. 82-89, Tbid,, ALShirazi, Abu Isoag Tbrahion al-irozabi (. 476 AHL); Al Muhazeb, Muktabah Isa, ALBahi, Cairo, 1849 AH, Val. I, p. 27 (Shafi figh; Ibn Rushd; op. cit, Vol. II, pp. 82.88, "Zid, Abu Zahra; Hayat Ibn Hazam, (under Tr) Lahore, p. 653. “Al-Mughni, Babal Farsid. M.J., Maghniyyah, Five Schools of Muslim Law, 496,