İstanbul Bâb Mahkemesi 3 Numaralı Sicil’de Mirastan Çekilme: Tehârüc
Authors: Şimşek Ayşe 
Published: September 2023

In the Ottoman Qadi Registers, it is seen that inheritance was shared in various ways. One of these is the takhāruj method. Takhāruj is an Islamic inheritance law term that refers to the renunciation of inheritance rights by heirs in exchange for property or for nothing. Based on court records, it is possible to see how people in Ottoman Istanbul three and a half centuries ago fought over their inheritance rights. Some of the heirs who did not receive their inheritance rights preferred to settle their inheritance through takhāruj. As can be seen in the documents, none of the heirs who made settlements through takhāruj could receive their original shares or a part of their shares, and they made settlements with other heirs in return for certain amounts. This study aims to analyze the takhāruj documents in the Istanbul Qadi Registers Bâb Court Registry No. 3 (H. 1077/M.1666-1667) and to evaluate the content and results of the takhāruj cases that were reflected in the court. İn this research, the methods of problem identification, data collection, data analysis, and interpretation of the results were applied. Accordingly, 14 takhāruj cases were identified by scanning the Bāb Court Registry No. 3. The language (diplomatic) and content of the takhāruj documents, the parties involved in the takhāruj document, the identities of those who made settlements with this method, the amounts and with whom they renounced their inheritance rights were determined. It is observed that some of the heirs renounced their rights to the inheritance specified in the document and made a settlement with the person who held the inheritance. In all of the takhāruj cases in this register, the heirs made a settlement with the other heir in exchange for the amount of money specified in the document instead of their inheritance shares in the inheritance. In four of the 14 cases, the heirs settled for cash and some previous debts. In three of these cases, the participants were non-Muslims. In six of these cases, only women, in six cases, only men, and in two cases, both male and female heirs settled with the heir who seized the inheritance (wāzı al-yad) through takhāruj. In five of these cases, the mediation of mediators (tawassut al-muslihīn - wasātat al-muslimīn) resulted in the settlement of the case through takhāruj, and in two of these five cases, there was a great deal of dispute between the heirs (munāza‘āt al- kasīra). An analysis of takhâruj cases shows that it is not possible to claim that the settling party agreed to the settlement voluntarily. As is evident in some of the cases, some heirs consented to the settlement by takhāruj because they could not receive their rights from the other heirs who held the inheritance despite their demands. It is always possible for heirs to consent to takhāruj because the Sharī'ah courts do not intervene in inheritance matters without a request (although the right to intervene is reserved in some cases), the kassāms collect a certain amount of tax called resm-i kısmet from the inheritance if the heirs demand division, and the uneasiness of bringing family matters to court. Since takhāruj documents are in the nature of a charge, the release of the other party’s liability by the one who consented to the settlement was recorded, and possible future inheritance claims were prevented. Although takhāruj, which is seen as one of the ways to solve historical problems related to inheritance, seems to solve problems as a type of settlement, the satisfaction of the party consenting to takhāruj is questionable. Historical records also show that inheritance disputes are an ancient problem of humanity.