Tafsir of Surah Al-Ma'idah - Verse 107

Testimony of Two Just Witnesses for the Final Will and Testament

This honorable Ayah contains a glorious ruling from Allah. Allah's statement,

يِـأَيُّهَا الَّذِينَ ءَامَنُواْ شَهَـدَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ

(O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two...) meaning that there should be two witnesses in such cases,

ذَوَا عَدْلٍ

(just men...) thus, describing them as just,

مِّنكُمْ

(of your own folk) Muslims.

أَوْ ءَاخَرَانِ مِنْ غَيْرِكُمْ

(or two others from outside) non-Muslims, meaning the People of the Book, according to Ibn `Abbas as Ibn Abi Hatim recorded. Allah said next,

إِنْ أَنتُمْ ضَرَبْتُمْ فِى الاٌّرْضِ

(if you are traveling through the land) on a journey,

فَأَصَابَتْكُم مُّصِيبَةُ الْمَوْتِ

(and the calamity of death befalls you.) These are two conditions that permit using non-Muslims from among the Dhimmis for witnesses when there are no Muslims present: When one is traveling and needs to write a will, as Sharih Al-Qadi said. Ibn Jarir recorded that Sharih said, "The witness of the Jews and Christians is not allowed except while traveling, and even then only to witness the dictation of the will." Allah's statement,

تَحْبِسُونَهُمَا مِن بَعْدِ الصَّلوةِ

(Detain them both after the Salah (the prayer),) refers to the `Asr prayer, according to Al-`Awfi who reported it from Ibn `Abbas. This is the same explanation reported from Sa`id bin Jubayr, Ibrahim An-Nakha`i, Qatadah, `Ikrimah and Muhammad bin Sirin. As for Az-Zuhri, he said that they are detained after Muslim prayer (i.e., in congregation). Therefore, these two witnesses will be detained after a congregational prayer,

فَيُقْسِمَانِ بِاللَّهِ إِنِ ارْتَبْتُمْ

(let them both swear by Allah if you are in doubt.) meaning, if you are in doubt that they might have committed treachery or theft, then they should swear by Allah,

لاَ نَشْتَرِى بِهِ

(We wish not in this) in our vows, according to Muqatil bin Hayyan,

ثَمَناً

(for any worldly gain) of this soon to end life,

وَلَوْ كَانَ ذَا قُرْبَى

(even though he be our near relative.) meaning, if the beneficiary be our near relative, we will still not compromise on the truth.

وَلاَ نَكْتُمُ شَهَـدَةَ اللَّهِ

(We shall not hide the testimony of Allah,) thus stating that the testimony is Allah's, as a way of respecting it and valuing its significance,

إِنَّآ إِذَاً لَّمِنَ الاٌّثِمِينَ

(for then indeed we should be of the sinful.) if we distort the testimony, change, alter or hide it entirely. Allah said next,

فَإِنْ عُثِرَ عَلَى أَنَّهُمَا اسْتَحَقَّآ إِثْماً

(If it then becomes known that these two had been guilty of sin...) if the two witnesses were found to have cheated or stolen from the money that the will is being written about,

يِقُومَانُ مَقَامَهُمَا مِنَ الَّذِينَ اسْتَحَقَّ عَلَيْهِمُ الاٌّوْلَيَانِ

(let two others stand forth in their places, nearest in kin from among those who claim a lawful right.) This Ayah indicates that if the two witnesses were found to have committed treachery, then two of the nearest rightful inheritors should stand for witness in their place,

فَيُقْسِمَانِ بِاللَّهِ لَشَهَـدَتُنَا أَحَقُّ مِن شَهَـدَتِهِمَا

(Let them swear by Allah (saying): "We affirm that our testimony is truer than that of both of them...") Meaning, our testimony that they have cheated is more truthful than the testimony that they have offered,

وَمَا اعْتَدَيْنَآ

(and that we have not trespassed (the truth),) when we accused them of treachery,

إِنَّا إِذاً لَّمِنَ الظَّـلِمِينَ

(for then indeed we should be of the wrongdoers.) if we had lied about them. This is the oath of the heirs, and preference is to be given to their saying. Just as in the case with the oath of relative of a murdered person if he attempts to tarnish the case of the murdered person. So his family takes an oath in defense of his honor. This is discussed in the studies of the oaths in the books of Ahkam. Allah's statement,

ذلِكَ أَدْنَى أَن يَأْتُواْ بِالشَّهَـدَةِ عَلَى وَجْهِهَآ

(That should make it closer (to the fact) that their testimony would be in its true nature and shape (and thus accepted),) means, the ruling requiring the two Dhimmi witnesses to swear, if there is a doubt that they were not truthful, might compel them to admit to the testimony in its true form. Allah's statement,

أَوْ يَخَـفُواْ أَن تُرَدَّ أَيْمَـنٌ بَعْدَ أَيْمَـنِهِمْ

(or else they would fear that (other) oaths would be admitted after their oaths.) means, requiring them to swear by Allah might encourage them to admit to the true testimony because they respect swearing by Allah and they glorify and revere Him. They also fear exposure if the heirs of the deceased are required to swear instead of them. In this case, the heirs would swear and earn the rightful inheritance that the two witnesses failed to declare. This is why Allah said,

أَوْ يَخَـفُواْ أَن تُرَدَّ أَيْمَـنٌ بَعْدَ أَيْمَـنِهِمْ

(or else they would fear that (other) oaths would be admitted after their oaths.), then,

وَاتَّقُواْ اللَّهَ

(And have Taqwa of Allah) in all of your affairs,

وَاسْمَعُواْ

(and listen.) and obey,

وَاللَّهُ لاَ يَهْدِى الْقَوْمَ الْفَـسِقِينَ

(And Allah guides not the rebellious people.) who do not obey Him or follow His Law.

يَوْمَ يَجْمَعُ اللَّهُ الرُّسُلَ فَيَقُولُ مَاذَآ أُجِبْتُمْ قَالُواْ لاَ عِلْمَ لَنَآ إِنَّكَ أَنتَ عَلَّـمُ الْغُيُوبِ

Sequence of Verses

Prior to this, there were injunctions relevant to religious considerations. Now some injunctions relevant to worldly considerations have been mentioned. The hint given is that the way Allah Ta` ala, in His mercy, helps His servants with better life in the Hereafter, He also takes care of better sustenance for them in the present world. (Bayan al-Qur'an)

The Background of Revelation

The event in the background of the revelation of the cited verses is that Budayl, a Muslim accompanied by Tamim and ` Adiyy, who were Christians at that time, travelled to Syria on a business visit. After reaching Syria, Budayl became sick. He made out a list of his things in writing and put it in his baggage. He did not inform his companions of the trip about it. When his sickness became serious, he called his Christian trip companions and made a will before them that they should deliver everything to his heirs. When they returned, they delivered everything to them. But, they took out a silver bowl which was polished with gold, or had gold inlay work on it, from the belongings. When the heirs found the list of things in the baggage left for them by the deceased, they asked the caretakers of the will if the deceased had sold something from the property, or was he very sick which may have compelled him to make unusual expenses. They answered their inquiry in the negative. Finally, the case came up for hearing before the Holy Prophet ﷺ . Since the heirs had no witnesses, the two Christians were put under oath. They declared that they had neither committed any breach of trust in what belonged to the deceased, nor had they hidden any of his things. In the end, based on the oath, the verdict was given in their favour. After the passage of some time, it was found that the two of them had sold that bowl to a goldsmith in Makkah. When asked, they said that they had bought it from the de-ceased. Since they had no witnesses at the time of purchase, they pleaded, they did not mention it earlier lest they be falsified.

The heirs of the deceased appealed in the court of the Holy Prophet ﷺ Now, contrary to the earlier situation, the executers of the will were claiming to have purchased the missing item while the heirs were denying it. In view of the absence of evidence, two persons closest of the deceased gave a sworn statement that the bowl was owned by the deceased and that the two Christians were liars in their oath. So, the amount of money for which they had sold it (1, 000 Dirhams) was made to be handed over to the heirs.

Commentary

'These verses are meant to give general instructions to the Muslims with regard to making will before death. The advice given is that the will should be evidenced by witnesses, so that they may prove the will in case of a dispute after the death of the testator. It has also been advised that two pious Muslims are chosen for witnessing the will. However, if the Muslim witnesses are not available, non-Muslim witnesses may also serve the purpose. The words 'two witnesses from you" signify the preference of Muslim witnesses, but the following words "or of two others not from you" point out to the permissibility of non-Muslim witnesses.

Then, the words "if you have some doubt" refers to a situation where the legal heirs of the deceased have a claim against the executors of the will, as in the case of Budayl the heirs claimed that a bowl of silver was delivered by the deceased to the executors. Since, in this case the heirs are the plaintiffs, they should produce witnesses to prove their claim, but on their failure to do so, the defendants, i.e. the trustees are required to declare on oath that they did not commit any breach of trust. For that purpose, the Holy Qur'an advises the judge by saying, you shall detain them after the prayer, and they shall swear.

Although it is not legally compulsory to take this oath in the mosque after a prayer, yet the Holy Qur'an has advised to take oath after a prayer, so that the sanctity of time and place may further persuade the people to give a truthful statement.

In the next verse the Holy Qur'an says, "Then, if it is discovered that the two had rendered themselves liable to a sin..." It means that they had given a false evidence, as in the case of Budayl they themselves admitted that the bowl was purchased by them which implied that the property of Budayl contained a bowl and their earlier testimony was false. At this stage they claimed that they had purchased the bowl from Budayl. They should have substantiated this claim by witnesses, but they failed to do so, therefore, the oath was given to the legal heirs of Budayl that no such sale took place to the best of their knowledge. It is this oath of the heirs which has been mentioned in the verse by saying, "then, in their place shall stand two others closest of those whose right has been taken away and they shall swear by Allah..."

Some Rulings

1\. The person with whom the deceased leaves his or her property in trust with the request that it be given to someone is called Wasiyy (authorized guardian, executor, trustee, caretaker; plural: Awsiya' ). A Wasiyy can be one individual, or more.

2\. That a Wasiyy should be Muslim and just, is better but not necessary, no matter whether the will is being made in journey or at home.

3\. In a dispute, the complainant is called the Mudda'i (plaintiff) while the other party is Mudda` a ` alayh (respondent).

4\. Witnesses from the Plaintiff are taken first. If he presents them as recognized under the legal norms set by the Shari’ ah of Islam, the case is decided in his favour. If he cannot do that, the Respondent is put on oath and the case is decided in his favour. However, if he denies it, the Plaintiff wins the case.

5\. Taking oath at a particular time or place in order to make it more emphatic, as done in the cited verse, depends on the opinion of the judge - it is not required compulsorily. Its compulsory nature is not proved from this verse too, while the converse is proved from other verses and Hadith reports.

The Witness of a Kafir is Acceptable in the case of another Kafir

In the opening words of the verse (106): يَا أَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ translated as : ` when death draws near one of you, that is, at the time of making a will, the evidence (recognized) between you shall be of two just witnesses from among you, or of two others not from you,' Muslims have been commanded that at the time death draws near one of them, they should appoint two good and just men from among them as their Wasiyy (executor of the will), and if they do not have such people from their own, then, they can have two others (that is, from disbelievers).

It is from here that Imam Abu Hanifah has deduced the ruling that the witness given by disbelievers for each other is permissible. Since the witness of the disbelievers has been declared permissible in the case of Muslims in this verse, as obvious from: أَوْ آخَرَ‌انِ مِنْ غَيْرِ‌كُمْ (or of two others not from you), so the witness of disbelievers for each other is permissible as more suited. But, later on, the witness of the disbelievers for Muslims was abrogated under the authority of the verse: وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِّ‌جَالِكُمْ (And have two witnesses from among your men - 2:282). But, the evidence of disbelievers for each other remains valid as it was. (Qurtubi Al-Ahkam Al-Qur'an by Jassas)

The support for the position of Imam Abu Hanifah (رح) also comes from what a Hadith says about a Jew who had committed Zina (adultery). His people smeared his face with black soot and produced him before the Holy Prophet ﷺ . Looking at his condition, he asked for the reason. They told him that the man had committed adultery (Zina). After hearing the testimony of the witnesses, he gave orders that he be stoned to death (Rajm). (Jassas)

Two Words, Two Rules

1\. The word, تَحْبِسُونَهُمَا (You shall detain them) in the context of this verse (106) tells us that a person who (genuinely) owes something to someone (having the right of return), the later can have him detained for the retrieval of his right, if and when needed. (Qurtubi)

The word, "Salah" in: مِن بَعْدِ الصَّلَاةِ (after the prayer) means the Salah or prayer of عَصر ` Asr. That this time has been chosen is because the people of the Book held it in esteem. Telling a lie at this time was particularly prohibited among them. This tells us that the placing of the restriction of special time or place for taking a solemn and sacred oath (Taghliz) is permissible. (Qurtubi)

In the Islamic law, such instructions are given concerning day-to-day life as provide lessons in a wider sphere of existence.. After a person’s death the division of his property is a family and economic matter. But this has been made a source of training in two important respects. One is that people should adopt the attitude of not giving consideration in their dealings to connections and relations: they should take into account only rights and truth. They should see what the truth is and not question who is favoured by it and who is not. The other is that every procedure should be treated as giving evidence before God. Anything which is in the custody of man is in God’s trust, because man saw it given by God with his own eyes, preserved it in his memory as given by God and now has to declare it with the help of the tongue given by God. Under these circumstances it will be a breach of trust if a man does not state the facts as he has seen them or committed them to memory.