al-Aqwal al-Wadiha al-Jaliya, fi Tahrir Masalat Naqd al-Qisma wa Masalat al-Daraja al-Jaliya
- Author died
- 1252 AH
- Editions
- T Istanbul
al-Aqwal al-Wadiha al-Jaliya, fi Tahrir Masalat Naqd al-Qisma wa Masalat al-Daraja al-Jaliya ("The Clear and Evident Statements in Elucidating the Issue of Annulling the Partition and the Issue of the Fictive Degree") is a jurisprudential treatise by the Hanafi jurist Ibn Abidin (1198–1252 AH / 1784–1836 CE) addressing intricate rules of family endowments (waqf) .
Background and Purpose
The treatise was written to examine a famous case regarding the division of endowment revenues originally posed by Taqi al-Din al-Subki and incorporated by Ibn Nujaym into his al-Ashbah wa-l-Naza'ir under the ninth legal maxim: "Giving effect to speech is preferable to disregarding it" (I'mal al-kalam awla min ihmalih) . Ibn Abidin noted in his magnum opus, Radd al-Muhtar ala al-Durr al-Mukhtar, that he authored this dedicated monograph upon encountering widespread confusion and conflicting rulings regarding the case, having also treated aspects of it in his Tanqih al-Fatawa al-Hamidiyya .
Subject and Arguments
The work focuses on two interconnected legal problems in family endowment stipulations:
- Annulling the partition (naqd al-qisma): Whether the existing distribution of endowment proceeds among descendants is annulled and redistributed anew upon the extinction of a higher generation (tabaqa or batn) . Ibn Nujaym had distinguished between deeds phrased with the conjunction wa- ("and") as cited by al-Khassaf—where partition is annulled—and deeds phrased with thumma ("then") as in al-Subki's scenario—where partition is not annulled . Following earlier critiques by Ibrahim al-Maqdisi and others, Ibn Abidin affirms that partition must be annulled and restarted per capita among the next generation regardless of whether the founder used wa- or thumma, provided the phrasing establishes succession between generational tiers .
- The fictive degree (al-daraja al-ja'liyya): The legal effect of a founder's condition stating that if an eligible descendant dies before entitlement leaving children, those children take their parent's place as if the parent were alive . Ibn Abidin analyzes the positions of al-Subki (who did not grant them entitlement in the father's tier), Jalal al-Din al-Suyuti (who treated this fictive degree like a natural one across all shares), and later jurists like Hasan al-Shurunbulali, concluding that the majority position upholds their standing in their grandfather's share while delimiting further collateral claims .
To illustrate these complex generational transfers and lines of succession, Ibn Abidin utilized genealogical branch diagrams (mushajjar) with numerical death sequences .
Manuscripts and Publication
Manuscript copies of the treatise are preserved in several repositories, including the Zahiriyya Library in Damascus (dated 1250 AH) and Dar al-Kutub al-Misriyya in Cairo (dated 1284 AH) . The text was printed in Damascus in 1301 AH and later published in Istanbul in 1325 AH within the two-volume collection of Ibn Abidin's treatises (Majmu'at Rasa'il Ibn Abidin) .
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