BOOK 2
Causes of Ownership
Article 140 – Ownership is acquired
1- By the rehabilitation of wasteland and the annexation of unclaimed properties.
2- By means of contracts and obligations.
3- By acquisition in virtue of a right of pre-emption.
4- By inheritance.
On the causes of Inheritance and the Various Degrees of Heirship
Article 861 – Two things give rise to inheritance: relationship through blood and through marriage.
Article 862 – Persons who can receive inheritance by relationship through blood are of three categories:
1 – Fathers, mothers and children.
2 – Grandparents, brothers, sisters and their children.
3 – Paternal uncles and paternal aunts, maternal uncles and maternal aunts and their children.
Article 863 – Heirs of the lower categories receive an inheritance when no person of a higher category exists.
Article 864 – Inheritance by marriage occurs when one spouse survives the other one.
Article 865 – If the same person has several claims to inheritance he receives an inheritance from all the claims, unless some of those claims exclude others, in which case he receives an inheritance only from those claims which exclude others.
Article 866 – If there is no heir, the judge will make dispositions concerning the estate.
On the True Commencement of the Inheritance
Article 867 – The inheritance becomes definite upon the real or the supposed death of testator.
Article 868 – The rights of possession of the heirs, in relation to the estate of the deceased, are not established until after the payment of the dues and the debts attached to the estate of the deceased.
Article 869 – The dues and debts that are attached to the estate of the deceased and must be paid before it is divided up among the heirs are as follows:
1 – The price of shrouding the deceased and the dues attached to the estate of the deceased, such as a thing which is subject to a pledge.
2 – The debts and the proprietary responsibilities which were incumbent on the deceased.
3 – The legacy of the deceased, if without the permission of the heirs up to one third of the estate; if with their permission, more than one third.
Article 870 – The dues mentioned in the previous Article must be paid in the order laid down in that Article; and the remainder, if any, must be divided up among the heirs.
Article 871 – If the heirs perform transactions relating to the actual chattels constituting the estate, those transactions are of no effect if the debts of the deceased have not been paid; and the creditors can cancel them.
Article 872 – The goods of a continually absent person will not be distributed except after proof of his death, or after the expiration of the period during which such a person might normally be expected to be alive.
Article 873 – If the date of the death of persons who receive inheritance from one another is not known, and the priority of one over the other is not ascertained, those persons will not take inheritance from one another, except where the death takes place as a result of drowning or an accident, in which case they will take inheritance from one another.
Article 874 – If persons who are entitled to inherit from one another die, and the date of the death of one of them is known, and it is not known whether the death of the other was before or after that date, only the person whose date of death is unknown will take an inheritance from the other, and not vice versa.
On the Conditions and the Impediments of Inheritance
Article 875 – It is a condition of inheritance that the heir should be alive at the moment of the death of the person from whom the inheritance issues; and if it is a question of an unborn child, it takes an inheritance only if it was conceived at the moment of death, and if it was born alive, even if it dies immediately after birth.
Article 876 – If there is doubt whether the infant was alive at the moment of birth, no inheritance passes.
Article 877 – If there is a dispute as to the moment of conception, the provisions of the law pertaining to the indications furnishing a presumption of paternity will be applied.
Article 878 – When at the time of death, there is an infant conceived which, if born and capable of inheriting, will prevent the succession of all or some of the other heirs, the inheritance will not be divided up until the state of the infant is determined; and if the infant conceived will not stand in the way of the inheritance of any of the other heirs, and the latter desires to divide up the estate, a portion must be set aside for the conceived infant equal to the portion of two sons of that degree of relationship; and the portion of each of the heirs is conditional until the state of the infant conceived is determined.
Article 879 – If there is a lost or untraceable person among the heirs, his portion will be set aside until his state is determined, if it is established that he died before the source of the inheritance, his portion is returned to the other heirs; otherwise, it goes to him or to his heirs.
Article 880 – Murder is an obstacle to succession; hence, a person who intentionally kills the source of the inheritance is prevented from receiving any inheritance from him, whether he was the perpetrator or the instigator, or whether he was acting singly or as an accomplice of others.
Article 881 – If the intentional killing of the deceased was by the process of law, or justified defense, the provisions of the pervious Article do not apply.
Article 881 repeated – An unbeliever (Kafir) does not inherit from a Muslim and if there is a Muslim among the unbelieving heirs of a deceased unbeliever, the unbelieving heirs do not receive inheritanceregardless of their priority over the Muslim in class and degree.
Article 882 – After a solemn malediction (li’an) husband and wife will not take inheritance from one another; similarly a child who, owing to a denial of paternity, has been the cause of a solemn malediction, does not take inheritance from the father nor does the father from him; but the said child takes inheritance from the mother and his maternal relations, and vice versa.
Article 883 – If a father, after pronouncing a solemn malediction, withdraws it, the son takes inheritance from him; but the paternal relations and father do not take inheritance from the son.
Article 884 -An illegitimate child does not take inheritance from the father, the mother, or their relations; but if the illegitimacy of the relationship of which the child is the result is established in relation to one of the parties, while it is not established for the other party by reason of violence or error, the child takes inheritance only from the latter side and his or her relatives, and vice versa.
Article 885 – The children and relations of the persons who are deprived of inheritance in accordance with Article 880 are not deprived of inheritance; hence, the offspring of a person who has killed his own father takes inheritance from his murdered grandfather, if nearer relatives do not come between.
On Exclusion from Inheritance (Hujb)
Article 886 – Exclusion from Inheritance (hujb) is the name given to the state of an heir who is completely or partially excluded from receiving an inheritance owing to the existence of other heirs.
Article 887 – Exclusion from inheritance is divided into two categories:
First, when the heir is completely deprived of the inheritance, e.g. a brother’s child is deprived of the inheritance owing to the existence of a brother and sister of the deceased, or brother of half-blood who is deprived of inheritance owing to the existence of a brother of full blood.
Second, when the portion of an heir is lessened from the highest grade to the lowest grade; for instance when the share of a husband is lessened from a half to a quarter whenever there are children from the deceased wife; and similarly when the share of the woman is reduced from a quarter to an eighth whenever there are children from her deceased husband.
Article 888 – The determining factor in the total exclusion from inheritance is the nearness of the relationship to the deceased; hence, each degree of heirs deprive the next degree of taking any inheritance except in the case mentioned in Article 936 and in the cases where the more remote heir is able to take inheritance by way of representation of another, in which case both take an inheritance.
Article 889 – As among the heirs of the first degree, if the deceased leaves no children, the children’s children, to whatever generation they extend, are the representatives of their father or their mother, and take an inheritance with the remaining parent of the deceased; but, as between the children, the nearest to the deceased deprives the further ones of inheritance.
Article 890 -As between the heirs of the second degree, if there are no brothers or sisters of the deceased, the children of his brothers or sisters, to whatever generation they extend, are the representatives of their father or mother, and take an inheritance with whichever of the ancestors of the deceased who has survived; but between the ancestors or the brother’s or sister’s children, the nearer to the deceased deprives the remoter of an inheritance. The provisions of this Article will also apply in the case of the heirs of the third degree.
Article 891 – The following heirs are not subject to exclusion from an inheritance:
Father, mother, son, daughter, husband and wife.
Article 892 – Partial exclusion from inheritance of a share occurs in the following cases:
1 – Whenever the deceased has children or grandchildren, in that case the parents of the deceased may not take more than one – third of the estate, except in accordance with Articles 908 and 909, in which case it is possible for either of the parents to take, by way of relationship or remainder, more than one sixth; and similarly the husband is restrained from taking more than one quarter, and the wife from taking more than one – eighth.
2 – Whenever the deceased has several brothers or sisters. In that case the mother of the deceased is restrained from taking more than one – sixth, provided that:
a – There are at least two brothers, or one brother with two sisters, or four sisters
b – Their father is still alive;
c – She is under no incapacity for inheriting, except for reasons of murder; and
d – The brothers and sisters of the deceased are of full blood or are on the father’s side.
On ‘Shares’ of Inheritance and Those Entitled to the Same
Article 893 – The heirs take their inheritance sometimes by shares; sometimes by relationship; and sometimes by both shares and by relationship.
Article 894 – Persons who take inheritance by shares are those whose portions of the estate are fixed; and persons who take by relationship are those whose portions are not fixed.
Article 895 – The fixed portions which are termed shares are defined as a half, a quarter, an eighth, two – thirds, and one – sixth of the estate.
Article 896 – – The persons who take inheritance by share include the mother, the husband, and the wife.
Article 897 – The persons who take partly by share and partly by relationship include the father, the daughter or the daughters, and the sisters on the father’s side or of full blood, and relations (kalaleh) on the mother’s side.
Article 898 – All other heirs, other than those mentioned in the two preceding Articles, take their inheritance only by relationship.
Article 899 – Three categories of heirs are entitled to a share of one – half of the estate:
1 – The husband, on condition that there are no children from the deceased wife whether from that husband or from another husband.
2- A daughter, if she is the sole offspring.
3-A sister of full blood or half blood on the father’s side, provided that she is the only one.
Article 900 – Two categories of heirs are entitled to take one – quarter of the estate as their share.
1 – The husband, if the woman dies and leaves children.
2- The wife or wives provided that the husband has died without leaving any offspring.
Article 901 – A share of one – eight belongs to the wife or wives, provided that the deceased husband has left children.
Article 902 – A two-thirds share of the estate belongs to two categories of heirs:
1 – Two daughters or more provided that there are no male offspring.
2 – Two or more sisters of the full or the half blood on the father’s side, if there are no brothers.
Article 903 – Two categories of heirs take a one-third share:
1 – The mother of the deceased if the deceased leaves no offspring and has no brothers and sisters
2 – The mother’s relation (kalaleh) if only one.
Article 904 – Three categories of heirs take a one-sixth share:
The father, the mother, and the mother’s relation (kalaleh) if only one.
Article 905 – Each of the persons entitled to a share takes his portion from the estate of the deceased; and then the rest remains for those entitled to inherit by relationship. If the person entitled to take by relationship is not equal in that category to the rank of the person who takes by a share, the rest is returned to the person entitled by share, except in the case of a husband or a wife, to whom it will not be returned; nevertheless, if there is no heir to the deceased except the husband, the balance of the estate remaining after the distribution of the share is returned to him.
On the Portions of Inheritance of Various Categories of Heirs
On the Portions of Inheritance of the First Degree Heirs
Article 906 – If the deceased leaves no living children, and no living children’s children of whatever degree, either of the parents, if alone, takes the whole estate; and if the father and mother of the deceased are both alive, the mother takes one-third and the father two-thirds. But if the mother comes after someone else, one-sixth of the estate belongs to the mother and the rest to the father.
Article 907 – If the deceased leaves no parents, but has one or more children, the estate will be divided as follows:
If there is only one offspring, whether son or daughter, the whole estate belongs to that child.
If there are several children, but all are sons or all daughters, the estate will be divided equally among them. If there are several children and some are sons and some are daughters, each son takes twice as much as each daughter.
Article 908 – If the father or the mother of the deceased, or both parents are alive together with one daughter, the share of the father and the mother will each be one-sixth of the estate; and the share of the daughter will be one-half thereof. The remainder must be divided among all the rest of the heirs in proportion to the share of each; unless the mother comes after someone else, in which case the mother takes no portion of the remainder.
Article 909 – If the father or the mother, or both parents of the deceased are alive together with several daughters, the share of all the daughters will be two-thirds of the estate, which is to be divided equally among them; and the share of the father and the mother will be one-sixth each. If there is a remainder, it will be divided among all the heirs in proportion to their shares unless the mother comes after someone else, in which case the mother will not take any portion of the remainder.
Article 910 – If the deceased has sons or daughters, even if only one, his grandchildren do not inherit.
Article 911 – If the deceased leaves no sons or daughters, his grandchildren are the legal representatives of his sons or daughters, and therefore are reckoned to belong to the first degree of heirs, and are entitled to inheritance along with each one of the parents who are alive. The division of the inheritance among the grandchildren will take place in accordance with thegeneration, that is to say, each individual will take the portion of the person through whom he is descended from the deceased; hence, the children of a son take twice as much as the children of a daughter.
In the division [of inheritance] among individuals of one generation, a boy takes twice as much as a girl.
Article 912 – Children’s children, to whatever generation they extend, take inheritance as recorded in the previous Article, and those nearer to the deceased exclude those more remote from him.
Article 913 – In all the conditions mentioned in this subsection, whichever of the married pair is the survivor takes his or her share and this share equals one half of the estate for the surviving husband and one-quarter for the surviving wife, provided that the deceased left no children or grandchildren; and it means one-quarter of the estate for the husband and one-eighth for the wife if the deceased left children or children’s children. The remainder of the estate is to be divided among the other heirs in accordance with the preceding Articles.
Article 914 – If, owing to the existence of several persons entitled to shares, the estate of the deceased is not sufficient to satisfy them, the deficiency falls on the daughter or the two daughters; and if, after the deduction of the portions of those entitled to shares there still remains something, and there are no heirs entitled to take the remainder by way of relationship, this remainder will be divided among the persons entitled to shares in accordance with the provisions of the preceding Articles; but the husband and the wife in all cases, and the mother if she comes after someone else, take no portion of the remainder.
Article 915 – The ring, the Quran, the personal clothes, and the sword of the deceased go to the eldest son, without being reckoned as part of his portion [of the legacy], unless the estate of the deceased is limited to those items.
On the Portions of Inheritance of the Second Degree Heirs
Article 916 – When the deceased leaves no heirs of the first degree, his estate goes to the heirs of the second degree.
Article 917 – If there is only one heir of the second degree, he takes the whole of the estate; and if there is more than one, the estate will be divided among them in accordance with the following Articles.
Article 918 – If the deceased leaves brothers or sisters of full-blood, half-brothers or sisters do not inherit. If there are no full brothers or sisters, half-brothers and half-sisters on the father’s side take their portion of the inheritance. Full brothers and sisters and half-brothers and sisters on the father’s side do not deny their half-brothers and sisters on the mother’s side their shares of the legacy.
Article 919 – If the heirs of the deceased include several full brothers, or several half-brothers on the father’s side, or several full sisters, or several half-sisters on the father’s side, the estate will be divided among them equally.
Article 920 – If the heirs of the deceased include several full brothers and sisters, or several half-brothers and half-sisters on the father’s side, the share of a male offspring will be twice that of a female one.
Article 921 – If the heirs are several brothers on the mother’s side, or several sisters on the mother’s side, or several brothers and sisters on the mother’s side, the estate will be divided among them equally.
Article 922 – If there are full brothers and sisters, and also brothers and sisters from the mother’s side, the division [of the legacy] will be performed in the following manner:
If the brother or the sister on the mother’s side is one person only, he or she takes one-sixth of the estate, and the rest belongs to the brothers and sisters of the full or half blood on the father’s side, who will divide up the rest in the manner laid down above. If there are several brothers and sisters on the mother’s side (kalaleh), one-third of the estate belongs to them and is divided among them equally, and the rest belongs to the brothers and sisters of the full or the half-blood on the father’s side and is divided among them in accordance with the disposition laid down above.
Article 923 – If the heirs are grandfathers or grandmothers, the estate will be divided among them in the following manner:
If there is a sole grandfather or grandmother, whether paternal or maternal he or she takes the whole estate.
If there is more than one grandfather and grandmother, and if they are both paternal, males take twice as much as females, and if they are both on the maternal side, the estate is divided among them equally.
If there are both grandfather or grandmother on the father’s side and grandfather or grandmother on the mother’s side, one-third of the estate goes to the grandfather or grandmother on the mother’s side; and if there is more than one ancestor on the mother’s side; that third part will be divided equally among them all; and the remaining two-thirds will go to the grandfather or grandmother on the father’s side; and if there is more than one such ancestor, the portion of a male in that two-thirds part will be twice the portion of a female.
Article 924 – If the deceased leaves ancestors and brothers and sisters (kalaleh), two-thirds of the estate goes to the heirs who have a relationship on the side of the father; and in dividing up this portion the males take twice the portion of the females; and one-third goes to the heirs who have relationship on the mother’s side, and is divided among them equally; however, if the relations of the mother’s side include only one brother or one sister on the mother’s side, he or she will only be entitled to one-sixth of the estate.
Article 925 -In all of the situations stipulated in the foregoing Articles, if the deceased leaves neither brothers nor sisters, the nephews and nieces are their legal representatives, and take inheritance together with the ancestors; in that case, the division of the inheritance in regard to the nephews and nieces will take place by way of their generation, that is to say, each generation takes the portion of the person through whom he or she is related to the deceased. Hence the children of brothers and sisters of the full blood or half blood will take a portion of the brothers and sisters of the full blood or half blood on the father’s side only, and the children of brothers and sisters on the mother’s side take the inheritance of the brothers and sisters on mother’s side.
In dividing the inheritance among the individuals of one generation, if there are only children of the full or half blood on the father’s side, the males take twice the portion of the females’; and if they descend from brothers and sisters on the mother’s side, the portion will be distributed among them equally.
Article 926 – If both brothers and sisters of the full blood, and those of the half-blood on the father’s side, and those of the half-blood on the mother ’s side are in existence, the brothers and sisters of the half-blood on the father’s side will be excluded from the inheritance.
Article 927 – In all the cases mentioned in this subsection, whichever one of the married pair who remains takes his or her share from the original estate; one-half for the husband, and a quarter thereof for the wife.
The shares of the relations of the mother, whether ancestors or descendants (kalaleh) are taken from the original estate. If owing to the inclusion of the husband or the wife, there is a deficiency in the available inheritance, this deficiency will be borne by the brothers and sisters of full blood or half-blood on the father’s side or by the paternal ancestors.
On the Portions of Inheritance of the Heirs of the Third Degree Heirs
Article 928 – When the deceased leaves no heirs of the second degree, his estate goes to the heirs of the third degree.
Article 929 – If there is only one heir of the third degree in existence, he takes the whole of the inheritance; and if there is more than one such person, the estate will be divided among them in accordance with the following Articles.
Article 930 – If the deceased leaves uncles or aunts related through both father and mother, the uncles and aunts related through only one parent do not inherit. If there are no uncles or aunts related through both father and mother, the uncles and aunts related through the father take their share.
Article 931 – If the heirs of the deceased include several paternal uncles or several paternal aunts, the estate will be divided among them equally, provided that they are all related through both father and mother, or all through the father, or all through the mother.
If there are both paternal uncles and paternal aunts, all of them being from one mother, they will divide the estate equally; but if all of them are from the same father and mother, or from the same father only, the portion of the males will be twice that of the females.
Article 932 – If there are paternal uncles and aunts of the same mother, and also paternal uncles and aunts of the same mother and father or of the same father only, the paternal uncle or aunt of the same mother, if alone, takes one-sixth of the inheritance; if they are several, they take one- third of the estate and divide this third equally among themselves; and the rest of the estate goes to the uncles and aunts of the same father and mother, or of the same father, and in the sharing males take twice the portion of the females.
Article 933 – If the heirs of the deceased include several maternal uncles or several maternal aunts, or several maternal uncles and maternal aunts together, the estate is divided among them equally, regardless of whether they all are of the same father and mother, or all of the same father, or all of the same mother.
Article 934 – If the heirs of the deceased include a maternal uncle and a maternal aunt from the same father, or from the same father and mother, together with a maternal uncle and aunt from the same mother, if the maternal relation is only one person, he or she takes one-sixth of the estate; if there is more than one maternal relation, they take one-third of it and divide it equally among themselves, and the remainder belongs to the maternal uncles and aunts of the same father and mother, or of the same father, who also divide it among themselves in equal shares.
Article 935 – If the deceased leaves one or more paternal uncles or aunts together with one or more maternal uncles or aunts, one-third of the estate goes to the maternal uncles and aunts, and two-thirds to the paternal uncles and aunts.
The division of the third among the maternal uncles and aunts will be in equal portions, but if among the maternal uncles and aunts there is only one relation related through the mother, one – sixth of the portion of the maternal uncles and aunts goes to that person; and if there are several uncles and aunts related only through the mother, one-third of that portion will be given to them, and in that case there will be an equal division among them.
In the division of the two-thirds part among the paternal uncles and aunts, the portions of the males will be twice that of the females; but if there is only one paternal uncle or aunt who is related through the mother only, one-sixth of the portion of the paternal uncles and aunts goes to him; and if there is more than one such person related through the mother only, one-third of that portion will go to them, in that case they will divide that third portion equally among themselves.
In the division of the five-sixths or the two-thirds which remains after deducting the portion of the uncles and aunts, the remainder will be divided among the paternal uncles and aunts related by father and mother or those related by the father only, in such a way that the portion of each male is twice that of each female.
Article 936 – If there are living paternal uncles or aunts, or maternal uncles or aunts, their children do not inherit, except when the heirs are confined to one nephew from a paternal uncle related by father and mother, together with one paternal uncle related only on the side of the father; in that case only, the nephew deprives the uncle of an inheritance; but, if, in addition to the nephew from a paternal uncle related by father and mother, there is a maternal uncle or aunt, or several paternal uncles or aunts even if related through the father alone, the nephew will take no inheritance.
Article 937 – If the deceased has left neither paternal uncles or aunts nor maternal uncles or aunts, their children take inheritance in their stead, and the portion of each share of inheritance will be the portion of the person through whom the heir descends from the deceased.
Article 938 – In all the cases mentioned in this subsection, the surviving spouse takes his or her share from the original estate, and this share equals one-half of the original estate for the deceased’s husband and one-quarter for the deceased’s wife.
A person related through the mother takes his portion from the original estate, and the remainder belongs to the persons related through the father; and if there is a deficiency, it will be borne by the persons related through the father.
Article 939 – In all the cases mentioned in this subsection and two previous subsections, if the heir is a hermaphrodite and is one of a group of heirs whereby the males take twice the portion of the females, his portion will be determined as follows:
If the indications of masculinity are greater, he takes the portion of the boys of his degree; and if the indications of femininity are greater, he takes the portion of one girl of that degree; and if neither the masculine nor the feminine indication is preponderant, the hermaphrodite will take one-half of the sum of the portions of one boy and one girl of his degree.
On the Inheritance of Husband and Wife
Article 940 – A married pair, married permanently, and not restrained from inheriting, inherits from one another.
Article 941 – The portions of inheritance of a husband and a wife follow the provisions of Articles 913,927 and 938.
Article 942 – If there is more than one wife, the fourth or eighth part of the legacy, which belongs to the wife, will be divided equally among them.
Article 943 – If the husband has divorced his wife in such a way that the divorce is revocable, either one who dies before the expiry of the “Iddah” [The Waiting Period After Divorce] will inherit from the other; but if the death of one of them takes place after the expiry of the “Iddah” period, or if the divorce was irrevocable, they will not inherit from each other.
Article 944 – If the husband divorces his wife when he is ill, and dies of that same disease within a year from the time he divorces her, the wife takes inheritance from him, even if the divorce was irrevocable; provided that the wife has not taken another husband.
Article 945 – If a man marries a woman when he is ill, and dies of that disease before the consummation of the marriage, the wife does not inherit from him; but if he dies after the consummation, or after recovery from that disease, the wife takes inheritance from him.
Article 946 – (Amended 02.26.2009) The husband takes inheritance from the whole of the estate of the deceased wife; and the wife inherits one-eighth of the actual movable property and one-eighth of the price of immovable property including site and buildings , if the deceased husband has children. If the husband leaves no children, the share of the wife will be one-fourth of the property stipulated as follows.
Note – ( Annexed 08.04.2010) The provisions of this article is also binding for the heirs of a deceased who died before the article was approved but his estate was not divided.
Article 947 – This article was repealed in accordance to the amendment dated 02.26.2011.
Article 948 – (Amended 02.26.2009) If the heirs refuse to pay the price of the land and the building, the woman may realize her right on those pieces of property from the actual pieces of property themselves.
Article 949 – If there is no other heir except for the husband or wife, the husband takes the whole of the estate of his late wife; but the wife takes only her portion, and the rest of the estate of the husband is considered as the estate of a man without any heir, and will be dealt with in accordance with Article 866.