Abstract

Abstract
The science of inheritance is considered as one of the most
significant sciences in the Islamic legislation, therefore, the
great messenger mohammed (peace be upon him) urged that the
Muslims should learn it, and said that it would be the first
juristic science to be lifted from the earth and if the person
differed or disagreed in the distribution of the quotas, they
would not find anyone who could decide between them.
The science of inheritance is regarded as a base of the
jurisprudence and the calculation by which anyone can be
aquatinted with the right of each heir, likewise, it is a fair, well-
established and accurate legal and juristic system God has set
down to clarify the human succession with each other and
characterized by the fairness of its judgments and their
collective attitudes and the judgment on the succession is certain
if reasons are available and its conditions are realized and its
obstacles are denied or negative.
The reasons of the inheritance are the kinship, descent
matrimony, right marriage and the faster child hood. Whereas its
conditions are the death of the person who gives the inheritance,
the presence of the heir, the knowledge of the source of the
heirloom, its agreed obstacles i.e. the bondage, murder,
difference of the religion and its disagreed obstacles i.e. the
difference of the locations, apostasy, the continuous absence,
adultery, indeterminacy or indefiniteness of the date of death.
The inheritance by evaluation is certain by its realization,
because of the presence or the availability of one of the reason
of the inheritance, the realization of its conditions and the
absence of its obstacles, but it is uncertain as far as its
inheritable quotas and values are concerned,
This means that the quotas of the heirs will not be
determined at once. Therefore it can be evaluated in such a way
as consisted with their interests and those of the other heirs who
have the reason of the appraisal or evaluation, that is to say the
pregnancy and effeminacy or her maphrodism.

1
 Abstract
The fetus or embryo is regarded as the would be child, still
inside the uterus (womb) of his mother, and we do not know
whether he will come into existence or not, but he represents an
exception to the rule the human being starts immediately after
his birth and this exception is that his personality starts before
his birth, therefore be acquires some rights, including the rights
of being inherited and in order for the fetus to deserve the
inheritance, there must be two conditions:
1- To be born within a period of time when he is still a
viable fetus within his mother’s womb at the time of the death of
the person who gives him the inheritance as well as his being
born viable.
As far as the state of the pregnancy is concerned, the fetus
may be one or more, and in order to out weigh between the
solitariness and multitude of the fetus, the succession by
evaluation can be applied by allocating or allotting the quota or
share of two male or female persons, whichever of them is
higher than the other, until the moment of the birth.
The state of the fetus ranges between being male or female
and to outweigh between them, the doctrine of the inheritance
(succession) by evaluation requires that the better of two quotas
be fixed or allocated to him, whether he be male or female.
The science has developed new types of medical
technology dedicated to the increase in the rate of birth and
procreation and ultimately to solve their relevant problems and
one of these types, the human reproduction which represents a
technical method having their advantages and disadvantages.
It seeks to identify the sex of the fetus or the embryo
before being shaped or created and this technology became a
well- founded truthfulness in addition to the transplantation of
the uterus (Womb), a technology about which much theoretical
and juristic controversy has been waged, the industrial
procreation which represents a present-day and an advanced
technology, and the apparatus, detecting the state of the
pregnancy and the fetus before being born, and possible
assisting to solve the problem of the study.

2
 Abstract
The effeminate or the hermaphrodite is an abnormal
human being in which the signs of the muscularity and
femininity are too confused for him or her to be distinguished as
far his or her actual sex is concerned and as a general rule the
judge must take and apply the most credible texts and provisions
and disregard or neglect the doubtful and disputable ones, and
the effeminate person may show many signs which can be used
to solve his or her problem therefore the inheritance of the
effeminate is determined by evaluation in which he or she may
inherit half the total sum of his or her two shares, the specific
share if or she be male and the specific share if he or she be
female.
The inheritance by reservation differs from the inheritance
by evaluation, because it (the former) can be regarded as an
uncertain kind of inheritance related to one of the causes of the
inheritance or connected to one of its conditions or obstacles,
and therefore it can lead to the deprivation of same of the heirs
from the inheritance and it can take either the form of assertion
or the elimination of the inheritance, but the inheritable share
cannot be change in case of being decided by the judge.
There are many cases in which the inheritance by
reservation can be used and as follows: the inheritance of the
missing, the captive the natural child, the child of imprecation,
in addition to the inheritance of the drowned, the burnt and the
apostate.
The state of the missing is related to availability of the
conditions of the inheritance : the death of the person giving or
owning the inheritable property, the presence of the heir or the
realization of his life, and the judgment of the ascertainment of
his dead is considered as an exception to the general rule that
legal personality of the human being remains connected with
him throughout his life and can only be terminated after his real
or actual death.
In the case of the missing the inheritance by reservation
requires that the third party should not inherit from his legacy
which must remain as his own property until his fate is decided

3
 Abstract
by testimony or by the judgment of his death diuretically, also
the share of the missing delays supposedly the opening of the
legacy of his predecessor during the period of his absence until
the ascertainment of his fate whether by being still alive or by
considering him dead through a judgment taken by the judge.
and if the missing appeared after being considered judicially as
dead, his appearance has a legal effect on his wife and property
this is particularly the case with captive (or the prisoner of war)
as far as the determination of his inheritance is concerned.
With reference to the inheritance of the natural child or
illegitimate child and the child of imprecation, if is descent
considered as the primary and foremost cause among the causes
of the inheritance in case of being interrupted by one of the
causes leading to the cessation of the inheritance i.e. the adultery
and imprecation.
The natural or illegitimate child is not descendent of his
father. In other words, by no means has he been related to his
father with the relationship of lineage, therefore he cannot be
attributed to his father, which leads to the want of the
provisions, rules and legal effects of the inheritance between the
natural or illegitimate child and the adulterer, but alternatively,
looking compassionately and mercifully to the natural or
illegitimate child, the Islamic jurisprudence or legislation
attributed his descent to her mother, because of being
descendent of her as a de facto judgment, as a result of which,
they inherit each other.
Many scientific and technical methods have come into
existence currently as a result of the advanced technology,
which can be utilized and urgently required in the legitimization
of the infant, if used in conformity with the teachings of the
Islamic jurisprudence, where the permission and interdiction
must be observed, if they be acceptable juristically, and one of
the most important of these methods are the technology of blood
test and the technology of (DNA) test or investigation.
The child of imprecation resembles the natural or
illegitimate child in that his descent of his father is interrupted

4
 Abstract
since the latter has denied his paternity of the former, also they
do not inherit each other and consequently the child is regarded
as descendent of her mother, and they inherit one another.
As to the inheritance of the drowned, the burnt and victims
of the collapse of a building and other persons who die
simultaneously as a result of an accident or more, this kind of
inheritance is closely tied with the availability of the conditions
of the inhabitability of each other, such as the death of their
predecessor and the affirmation of the life of the heir the
inheritance by reservation requires that the drowned and the
burnt can only inherit each other from the original part of the
property.
Finally as to the apostasy it is firmly associated with one
of the agreed obstacles of the inhabitability. i.e., the obstacle
regarding the difference in the religion, the widely- held view
among the Islamic jurists is that neither can the apostate inherit
anyone nor can anyone inherit him, and his property must be
considered as a booty and must go back to the treasury and this
is a unanimously espoused view.