The 43rd. Call: The Command to Give Bequest before Death
Almighty Allah says (what can be translated as): “O you who have believed, testimony [should be taken] among you when death approaches one of you at the time of bequest - [that of] two just men from among you or two others from outside if you are traveling through the land and the disaster of death should strike you. Detain them after the prayer and let them both swear by Allah if you doubt [their testimony, saying], ‘We will not exchange our oath for a price, even if he should be a near relative, and we will not withhold the testimony of Allah. Indeed, we would then be of the sinful.’ But if it is found that those two were guilty of perjury, let two others stand in their place [who are] foremost [in claim] from those who have a lawful right. And let them swear by Allah, ‘Our testimony is truer than their testimony, and we have not transgressed. Indeed, we would then be of the wrongdoers.’ That is more likely that they will give testimony according to its [true] objective, or [at least] they would fear that [other] oaths might be taken after their oaths. And fear Allah and listen; and Allah does not guide the defiantly disobedient people.” (Al-Ma’idah: 106-108)
It was said that the ruling in this verse was abrogated, but most scholars agree that it is a definite ruling. This verse includes the ruling when a Muslim dies with no other Muslim around him. It was at the beginning of the spread of Islam, when the people were still disbelievers. The land was a land of war. People used to pass inheritance through bequest, then it was abrogated and the rulings of inheritance were obligated and people started to apply them.
Ibn Abbas said that the reason for the revelation of this verse is the following: Badil, the servant of Amr ibn al-Ass traveled with two Christian traders named Tamim al-Dari and Aday ibn Badda’ to trade in the Levant region. In the road, Badil felt ill so he wrote his will by his own hands and he tucked it in his baggage and he delivered it to them. When he died, they opened his baggage and took something from it then they sealed it like how it was. They came to his family in Medina and gave them his baggage. So, his family opened his baggage and they found his will and the things in the baggage but they did not find a silver article inlaid with gold which was mentioned in the will. They asked them about it and they said: This is what had from him and what has been given to us. The family said: This is the will in his handwriting. They said: We did not keep anything of his belongings. They referred to the Prophet, Peace Be upon Him, and this verse was revealed. The Prophet commanded that the people take testimony from them after al-Asr prayer by swearing by Allah, except for whom there is no deity, that they did not take anything except that and they did not keep anything else. They gave testimony then his family found the article in Makkah. Those who had it said that they bought it from Aday and Tamim. Then they both said: Yes but we bought the article from him and we forgot to mention that when we gave testimony. We hated that we might lie about ourselves. They referred to the Prophet, Peace Be upon Him, so the next verse was revealed “But if it is found that those two were guilty of perjury, let two others stand in their place [who are] foremost [in claim] from those who have a lawful right.” The Prophet ordered that two of the family of the deceased take an oath to state what Tamim and Aday kept whereas it is their own right. Later, Tamim al-Dari accepted Islam and he pledged allegiance to the Prophet, Peace Be upon Him, and he used to say: The Messenger of Allah is truthful, I took the article.
Ibn Abbas thinks that the two witnesses should give testimony after the prayer of their faith, because there is no sense in taking testimony from them after Asr paryer as they do not care about any Islamic prayer whether Dhuhr or Asr and they do not believe in them (Almighty Allah attributed the testimony to His Exalted Self to honor and glorify it).
But if afterwards it should come to light that the two witnesses have been guilty of this very sin, then two others should replace them from among those immediately concerned. Both shall swear by Allah: Our testimony is indeed truer than that of these two. We have not transgressed the bounds of what is right; for then we should be among the evil-doers. Thus it will be more likely that people will offer testimony in accordance with the truth; or else they will fear that the oaths of others may be taken after their oaths. Have fear of Allah and hearken to Him. Allah does not guide those who are unjust.
The process outlined in these three verses indicates that a person who feels the end to be near and wants to make bequests assigning any money he has to his relatives should call in two Muslim witnesses of probity and give them what property he has so that they may give it to his relatives who are not present. This applies when the person concerned is in his hometown. If he is travelling and does not find two Muslim witnesses to entrust his property to, then it is permissible to have two non-Muslim witnesses.
Should the Muslim community, or the family of the deceased, doubt the honesty of what the witnesses hand over, or they have reason to suspect that the witnesses have been unfaithful to their trust, then the following procedure applies. The witnesses are brought forward after having offered prayers, according to their faith, and they are asked to testify by Allah that they would not swear to make any gain for themselves or for anyone else, even a close relative, and that they would not conceal anything entrusted to them. Should they do so, they acknowledge that they would be guilty of committing a sin. Thus, their testimony is approved.
However, if it later appears that the witnesses have been guilty of a breach of trust, giving false testimony under oath, another procedure takes place. The two closest heirs of the deceased who have suffered as a result of the false testimony come forward and swear that their own testimony is truer than that of the two witnesses, and that by stating this fact, they are guilty of no iniquity. Should this take place, then the statement of the first two witnesses is considered null and void, while the statement of the second two witnesses is upheld.
The Qur’anic verses state that these procedures ensure that witnesses remain true in their testimony, fearing that the first witnesses are rejected. Hence, they try hard to be true to their trust. “That is more likely that they will give testimony according to its [true] objective, or [at least] they would fear that [other] oaths might be taken after their oaths.” (Verse 108) These verses are concluded with a reminder to all people to remain Allah-fearing, and to watch Allah and obey His commandments. They are further reminded that Allah will not give His guidance to anyone who turns away from His path. “And fear Allah and listen; and Allah does not guide the defiantly disobedient people.” (Verse 108)
Al-Qurtubi relates the occasion that led to the revelation of these three verses: I do not know of any disagreement among scholars that these three verses were revealed in connection with Tamim al-Dari and Aday ibn Badda’. Al-Bukhari, al-Daraqutni and others quote this report by Ibn Abbas: Tamim al-Dari and Aday ibn Badda’ used to go frequently to Makkah. Once a young man from the Sahm clan went with them and he died in a place where there was no Muslim. Just before his death, he put them in charge of his property, which they delivered to his family, but they retained a silver article with a gold covering. Allah’s Messenger (Peace Be upon Him) asked them by Allah whether they had withheld or concealed anything. Later on, that silver article was found in Makkah. People there said that they bought it from Aday and Tamim. Two men who were heirs of the man from Sahm stated under oath that the article belonged to their relative and that their testimony was truer than that of the two witnesses. They also confirmed that they had not transgressed. The Prophet then took the silver article to give to the deceased man’s relatives. It was in relation to those people that these verses were revealed... [The text quoted here is the one related by al-Daraqutni].
It is clear that the nature of the society in which these rulings were laid down has a bearing on the procedures outlined. The calling of witnesses and entrusting things to their care, the taking of an oath in public after offering prayers to enhance one’s religious consciousness, the fear of being found out, should one be tempted to lie or to act dishonestly, are all measures which suggest their effectiveness in a particular type of society. Modern societies may have different methods and measures of proof, such as documentation, registration, and bank deposits, etc. The question then which can be posed here is: has this text lost its operational validity in today’s society?
The fact is that we may often be misguided by the circumstances that prevail in a particular society. We may think that some recommended measures may have lost their validity or effectiveness, or that they have become unnecessary, or that they were more suited to past communities. Such thoughts may be the result of developments that have taken place in society.
When we are so misguided, we simply forget that this religion of Islam is meant for all mankind, in all places and for all generations. We also forget that a huge number of people today still live in semi-primitive or underdeveloped conditions. Such communities are in need of legal provisions and procedures to suit their needs in all their forms and stages of development. They find in this religion of Islam what suits their needs in all situations. When they move up along the ladder of development and progress, they will still find in it what satisfies their needs in the same way. They also find that its legal provisions satisfy their present needs and the needs of their development. This is one miracle of this religion and its law. It is a proof that it is laid down by Allah who knows all.
We may also be misguided when we forget that individuals today living in societies that have attained a high standard of development may find themselves in some emergency situation when they could rely on the simplicity and comprehensiveness of Islamic law. We must not forget that the tools employed by the Islamic faith have been devised so that they are effective in all environments, applicable to all cases, in Bedouin and urban communities, in the desert and the jungle, as well as in the town and city. It is a faith for mankind in all ages and societies. Again, this is one of its great miracles.
We are even more grossly misguided when we think that we, human beings, know what suits us better than Allah, our Creator. But we are often reminded by the realities that we should be more humble in our approach. We should better remember before we face the shock of His reality. We should know what manners we should adopt when we refer to Allah. We should behave like the obedient servants of Allah, the Master of all.