An heir who has gone missing (al-mafqud)

Share suspended; and he is presumed dead only when his whole generation is gone. The Hanafi rule is a formula: the missing man is “alive as regards himself and dead as regards others” — alive, so his own property is not divided among his heirs; dead, so he takes nothing from a relative who dies while he is missing. al-Sarakhsi’s reason is a rule of evidence, not a guess about survival: the presumption that a known state continues is good enough to preserve what a man already had, and not good enough to give him something new. So his share of the other estate is held back “exactly as the unborn child’s share is held back”, and if the waiting period expires with no news he takes nothing of it — like a child born dead. As to the period, the received Hanafi rule (zahir al-riwaya) is that he is declared dead when none of his contemporaries in his own town is left alive. What age that implies was disputed inside the school: 120 years from Abu Hanifa, 100 from Abu Yusuf, 90 from Muhammad b. Hamid al-Bukhari, 70 on some views — later authorities issuing fatwa on 90 as the most workable, others on 80, Ibn al-Humam preferring 70, and others still leaving the period to the ruler’s judgement on the facts. A judicial ruling is required before he is treated as dead.

Sources: al-Mabsut, Kitab al-Mafqud — “wa hukmuhu fi’l-shar‘i annahu hayyun fi haqqi nafsihi hatta la yuqsama maluhu bayna warathatihi, mayyitun fi haqqi ghayrihi hatta la yarithu huwa idha mata ahadun min aqriba’ihi”, because presumption of continuance is good to preserve what was but not to establish what was not (Muhammad b. Ahmad al-Sarakhsi (d. c. 483 AH)) · al-Mabsut, Kitab al-Mafqud — the Hanafi waiting period: “fa-zahiru al-madhhabi annahu idha lam yabqa ahadun min aqranihi hayyan fa-innahu yuhkamu bi-mawtihi”, because what must be known is referred to his likes, and survival past all his contemporaries is rare; al-Hasan b. Ziyad: 120 years from birth — which al-Sarakhsi rejects as astrologers’ reasoning refuted by the long lives reported in scripture; Abu Yusuf: 100 years. Also records that the Hanafis reject ‘Umar’s four-year rule for the wife, following ‘Ali: “hiya imra’atun ubtuliyat fa’l-tasbir” (Muhammad b. Ahmad al-Sarakhsi (d. c. 483 AH)) · al-Mabsut, Fasl fi Mirath al-Mafqud — annexed to the chapter on the unborn child “li-istiwa’i halihima”: “al-mafqudu yuj‘alu hayyan fi malihi mayyitan fi mali ghayrihi … wa lakin yuqafu nasibu al-mafqudi kama yuqafu nasibu al-haml”; and if the period runs out and he is ruled dead, “lam yastahiqqa shay’an mimma wuqifa lahu bi-manzilati al-hamli idha infasala mayyitan” (Muhammad b. Ahmad al-Sarakhsi (d. c. 483 AH)) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §22 — “fa-fi zahiri al-riwayati ‘inda al-Hanafiyyati yuhkamu bi-mawti al-mafqudi idha lam yabqa ahadun min aqranihi fi baladihi”; and the Hanafi dispute over the age at which his contemporaries may be taken to have died — 120 years from Abu Hanifa (the choice of al-Quduri), 100 from Abu Yusuf, 90 from Muhammad b. Hamid al-Bukhari, 70 on some views, and on others left to the imam’s ijtihad (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§22–23 — the later Hanafi preference (90, “wa huwa al-arfaq”; or 80; Ibn al-Humam choosing 70; or referral to the imam as “al-mukhtaru wa’l-aqyas”); and “wa amma al-Shafi‘iyyatu fa’l-sahihu al-mashhuru ‘indahum anna taqdira tilka al-sinni matrukun li-ijtihadi al-imam”, some estimating 62, 70, 80, 100 or 120 years (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Mafqud” §§1–2 — definition: “gha’ibun lam yudra mawdi‘uhu wa hayatuhu wa mawtuhu”; and the classification — “al-mafqudu ‘inda al-Hanafiyya wa’l-Shafi‘iyya naw‘un wahid”, while the Malikis divide him into four types (missing in Muslim lands, in enemy lands, in fighting against unbelievers, in fighting between Muslims) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§23–24 — WHO takes the missing man’s estate: to those of his heirs alive on the day he is DEEMED dead (the ruling of ‘Umar and ‘Uthman; a Hanafi view, a Maliki view, and the soundest Hanbali view), against those alive on the day the JUDGE rules him dead (a Hanafi view, the relied-upon Maliki view, the Shafi’i school, and a Hanbali view); and whether a judicial ruling is needed at all — required for the Hanafis, a Maliki view, and taken by the Shafi’is (Ministry of Awqaf and Islamic Affairs, Kuwait) — al-Sarakhsi’s Kitab al-Mafqud and his chapter on the missing man’s inheritance, read against the Mawsu’a’s Hanafi sections.

Share suspended; and the period depends on WHERE he went missing. Alone of the four, the Malikis grade the missing man by circumstance rather than treating him as one category. A man missing inside Muslim territory: four years, then the ‘idda of death. A man missing in enemy territory: no fixed term at all — nothing happens until his death is proved or he reaches an age at which he would not still be living, put at seventy years by Malik, Ibn al-Qasim and Ashhab, at eighty in one report from Malik, and at seventy-five by Ibn ‘Arafa. A man missing in fighting against unbelievers is treated by Malik and Ibn al-Qasim like one missing in enemy territory. A man missing in fighting between Muslims has, on Malik and Ibn al-Qasim’s view, no fixed term whatever: his wife simply counts her ‘idda from the day the two lines met. On the estate itself, Khalil’s text is that the missing man’s property is held “until the judge actually rules him dead”, after the period of presumed lifespan has run; and where he is an heir of someone else, the problem is worked twice — reckoning him alive and reckoning him dead — each other heir is given the smaller of his two entitlements, and the doubtful remainder is suspended.

Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Mafqud” §§1–2 — definition: “gha’ibun lam yudra mawdi‘uhu wa hayatuhu wa mawtuhu”; and the classification — “al-mafqudu ‘inda al-Hanafiyya wa’l-Shafi‘iyya naw‘un wahid”, while the Malikis divide him into four types (missing in Muslim lands, in enemy lands, in fighting against unbelievers, in fighting between Muslims) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §4 — “wa dhahaba al-Malikiyyatu ila anna al-mafquda fi biladi al-muslimina tatarabbasu imra’atuhu arba‘a sinin”, then the ‘idda of death; but one missing in enemy territory “la tahillu” until death is proved or he reaches an age no one lives beyond — seventy years on the view of Malik, Ibn al-Qasim and Ashhab, eighty on one report from Malik, seventy-five per Ibn ‘Arafa (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Sharh al-Kabir li’l-Dardir with Hashiyat al-Dasuqi, [Mawani‘ al-Mirath] — one page carrying three Maliki rules: no inheritance for “man juhila ta’akhkhuru mawtihi”; “wa waqafa al-qasma li’l-haml”, the whole division suspended until birth (al-Dasuqi: “wa ma dhakarahu al-musannifu min waqfi al-qasmi huwa al-mashhuru min al-madhhab, wa qala Ashhab: yata‘ajjalu adna al-sahmayn”); and “wa waqafa malu al-mafqudi li’l-hukmi bi-mawtihi ba‘da zamani al-ta‘mir … hal huwa sab‘una sanatan aw khamsun wa sab‘una aw thamanun”, with the missing man reckoned both alive and dead and “u‘tiya al-warithu ghayru al-mafqudi aqalla nasibihi wa wuqifa al-mashkuku fih” (Ahmad al-Dardir (d. 1201 AH) with Muhammad b. Ahmad al-Dasuqi (d. 1230 AH)) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§23–24 — WHO takes the missing man’s estate: to those of his heirs alive on the day he is DEEMED dead (the ruling of ‘Umar and ‘Uthman; a Hanafi view, a Maliki view, and the soundest Hanbali view), against those alive on the day the JUDGE rules him dead (a Hanafi view, the relied-upon Maliki view, the Shafi’i school, and a Hanbali view); and whether a judicial ruling is needed at all — required for the Hanafis, a Maliki view, and taken by the Shafi’is (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Mawsu’a’s Maliki sections (footnoted to al-Mudawwana, al-Taj wa’l-Iklil, Mawahib al-Jalil and al-Dasuqi), corroborated from al-Dardir and al-Dasuqi directly.

Share suspended; and no fixed number of years at all. The Shafi’i school declines to name a period. al-Nawawi’s text is that the missing man’s property “is left until evidence of his death is given, or a period passes beyond which he probably would not live — then the judge exercises his judgement and rules him dead”, and al-Shirbini spells out the implication: “his words indicate that this period is not fixed, and that is the sound view”, with 70, 80, 90, 100 and 120 years all recorded only as minority estimates. Two consequences follow, and both bite. A judge’s ruling is needed — the mere passage of time is not enough. And the estate goes to whoever is his heir at the moment of the ruling: “so anyone who died before that, even by an instant, inherits nothing from him”. Where the missing man is himself an heir, the school’s rule is stated as a maxim — suspend his share and “act towards those present on the worse assumption”: an heir the missing man would exclude gets nothing; an heir whose share would shrink is reckoned on whichever of the two assumptions shrinks it; an heir unaffected either way is paid in full.

Sources: Mughni al-Muhtaj, Kitab al-Fara’id — “wa man usira aw fuqida wa’nqata‘a khabaruhu turika maluhu hatta taquma bayyinatun bi-mawtihi aw tamdiya muddatun yaghlibu ‘ala al-zanni annahu la ya‘ishu fawqaha fa-yajtahidu al-qadi wa yahkumu bi-mawtihi thumma yu‘ti malahu man yarithuhu waqta al-hukm”; al-Shirbini’s gloss: “afhama kalamuhu anna hadhihi al-muddata la tataqaddaru wa huwa al-sahih”, with 70, 80, 90, 100 and 120 recorded as minority estimates; and “fa-man mata qabla dhalika wa law bi-lahzatin lam yarith minhu shay’an” (al-Khatib al-Shirbini (d. 977 AH)) · Mughni al-Muhtaj, Kitab al-Fara’id — one page carrying the school’s rule for BOTH suspensions. The missing heir: “wa law mata man yarithuhu al-mafqudu waqafna hissatahu wa ‘amilna fi’l-hadirina bi’l-aswa’” — the whole estate suspended if he is the only heir, otherwise his share; with the three classes of present heir (one whom the missing man would exclude gets nothing, one whose share his life or death would reduce is reckoned on the worse assumption, one whose share is unaffected is paid). And the unborn heir: “wa law khallafa hamlan yarithu aw qad yarithu ‘umila bi’l-ahwati fi haqqihi wa haqqi ghayrihi” (al-Khatib al-Shirbini (d. 977 AH)) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§22–23 — the later Hanafi preference (90, “wa huwa al-arfaq”; or 80; Ibn al-Humam choosing 70; or referral to the imam as “al-mukhtaru wa’l-aqyas”); and “wa amma al-Shafi‘iyyatu fa’l-sahihu al-mashhuru ‘indahum anna taqdira tilka al-sinni matrukun li-ijtihadi al-imam”, some estimating 62, 70, 80, 100 or 120 years (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Mafqud” §§1–2 — definition: “gha’ibun lam yudra mawdi‘uhu wa hayatuhu wa mawtuhu”; and the classification — “al-mafqudu ‘inda al-Hanafiyya wa’l-Shafi‘iyya naw‘un wahid”, while the Malikis divide him into four types (missing in Muslim lands, in enemy lands, in fighting against unbelievers, in fighting between Muslims) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§23–24 — WHO takes the missing man’s estate: to those of his heirs alive on the day he is DEEMED dead (the ruling of ‘Umar and ‘Uthman; a Hanafi view, a Maliki view, and the soundest Hanbali view), against those alive on the day the JUDGE rules him dead (a Hanafi view, the relied-upon Maliki view, the Shafi’i school, and a Hanbali view); and whether a judicial ruling is needed at all — required for the Hanafis, a Maliki view, and taken by the Shafi’is (Ministry of Awqaf and Islamic Affairs, Kuwait) — Mughni al-Muhtaj on al-Nawawi’s Minhaj, read against the Mawsu’a’s Shafi’i sections.

Share suspended; and the answer depends on how he went missing. The Hanbalis split the missing man in two. Where the disappearance itself points to death — lost between the lines in a battle where others died, a passenger of a ship that sank with some survivors, a man who went out to the market or to the ‘isha prayer and never came back — the wait is four years, on Ahmad’s own express ruling, after which his property is divided and his wife observes the ‘idda of death; al-Qadi would postpone division until that ‘idda has also run, and Ibn Qudama prefers not to. Where it does not — the trader, the traveller, the student — there are two narrations: no division until death is certain or a period passes in which he could not have lived, referred to the judge’s discretion; or he is waited for until ninety years from his birth are complete, which the Mawsu’a records as the strong, fatwa-given and sound position of the school, some Hanbalis putting it at 120. Two features are distinctive. On the soundest view no judicial ruling is needed at all. And on the missing man as an heir, Ibn Qudama states the working expressly: the problem is done twice, once on his being alive and once on his being dead, each heir is given the certain minimum, and the doubtful remainder is held — though the heirs present may lawfully settle the excess among themselves, since it will not leave them.

Sources: al-Mughni, Kitab al-Fara’id, mas’ala 4973, “fasl: fi mirathi al-mafqud” — two types. Where destruction is the likely explanation, “fa-hadha yuntazaru bihi arba‘a sinin, fa-in lam yazhar lahu khabarun qusima maluhu”, “nassa ‘alayhi al-imamu Ahmad”. Where it is not — the trader, the student, the traveller — two narrations: no division until death is certain or a period passes in which he could not live, “wa dhalika mardudun ila ijtihadi al-hakim” (Ibn Qudama attributing this also to al-Shafi’i, Muhammad b. al-Hasan, the mashhur from Malik, Abu Hanifa and Abu Yusuf); or ninety years counted from his birth. And, on his share of another’s estate, “wuqifa li’l-mafqudi nasibuhu min mirathihi wa ma yushakku fi mustahiqqihi wa qusima baqihi” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, mas’ala 4973 cont. — ‘Abdullah b. ‘Abd al-Hakam: seventy years; al-Hasan b. Ziyad: a hundred and twenty. “Wa’ttafaqa al-fuqaha’u ‘ala annahu la yarithu al-mafquda illa al-ahya’u min warathatihi yawma qusima maluhu, la man mata qabla dhalika wa law bi-yawm”; and, where the missing man is himself an heir, “fa-madhhabu Ahmada wa aktharu al-fuqaha’i ‘ala annahu yu‘ta kullu warithin min warathatihi al-yaqin, wa yuqafu al-baqi hatta yatabayyana amruhu aw tamdiya muddatu al-intizar” — the problem worked twice, once on his being alive and once on his being dead, and each heir given the lesser of the two; and the heirs may agree among themselves over the excess (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§2–3 — “wa amma al-Hanabilatu fa’l-mafqudu ‘indahum qismani”: one whose absence outwardly suggests safety (the traveller, the trader, the student) and one whose absence outwardly suggests destruction (the soldier lost in battle, a passenger of a ship that sank with some survivors, the man who steps out to the market and does not return) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§4–5 — “wa amma al-Hanabilatu fa-‘indahum fi’l-mafqudi alladhi zahiru ghaybatihi al-salamatu qawlan”: either the marriage does not end until death is proved, or she waits until he would be ninety — “wa’l-riwayatu al-ula hiya al-qawiyyatu al-mufta bi-ha, wa hadha huwa al-sahihu fi’l-madhhab” — some Hanbalis putting it at 120; while for one whose absence suggests destruction the wait is four years, “wa huwa al-madhhab” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §24 cont. — “wa huwa qawlun ‘inda al-Hanabila, ghayra anna al-qawla al-asahha ‘indahum annahu la yahtaju ila hukmin bi’-‘itibarihi mayyitan”; and the consequence of treating the judgment as constitutive rather than declaratory — on the constitutive view the property “la tuwazza‘u illa bayna al-warathati al-mawjudina yawma suduri al-hukm” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Mafqud” §§23–24 — WHO takes the missing man’s estate: to those of his heirs alive on the day he is DEEMED dead (the ruling of ‘Umar and ‘Uthman; a Hanafi view, a Maliki view, and the soundest Hanbali view), against those alive on the day the JUDGE rules him dead (a Hanafi view, the relied-upon Maliki view, the Shafi’i school, and a Hanbali view); and whether a judicial ruling is needed at all — required for the Hanafis, a Maliki view, and taken by the Shafi’is (Ministry of Awqaf and Islamic Affairs, Kuwait) — al-Mughni mas’ala 4973, read against the Mawsu’a’s Hanbali sections (footnoted to al-Mughni, Kashshaf al-Qina’, al-Furu‘ and Matalib Uli al-Nuha).