|Wikisource:Islam|| Principles of Mohammadan Law |
by William Hay MacNaghten
|Published by Williams and Norgate prior to 1868, in the joint volume Principles of Hindu and Mohammadan law, republished from the Principles and Precedents of the same. This is a summary of some aspects of Sharia law.|
Chapter I. PRINCIPLES OF INHERITANCE
Section I. GENERAL RULES
1. There is no distinction between real and personal, nor between ancestral and acquired property, in the Mohammadan Law of Inheritance.
2. Primogeniture confers no superior right. All the sons, whatever their number, inherit equally.
3. The share of a daughter is half the share of a son, whenever they inherit together.
4. A will made in favour of one son, or of one heir, cannot take effect to the prejudice and without the consent of the other sons, or the other heirs.
5. Debts are claimable before legacies, and legacies (which, however cannot exceed one-third of the testator's estate, must be paid before the inheritance is distributed.
6. Slavery, homicide, difference of religion and difference of allegiance, exclude from inheritance.
7. But persons not professing the Mohammadan faith may be heirs to those of their own persuasion: in the case of persons who are of the Mohammadan faith, difference of allegiance does not exclude from inheritance.
8. To the estate of a deceased person, a plurality of persons having different relations to the deceased, may succeed simultaneously, according to their respectively allotted shares, and inheritance may partly ascend lineally, and partly descend lineally at the same time.
9. The son of a person deceased shall not represent such person if he died before his father. He shall not stand in the same place as the deceased would have done had he been living, but shall be excluded from the inheritance, if he have a paternal uncle. For instance, A, B, and C are grandfather, father, and son. The father B dies in the lifetime of the grandfather A. In this case the son C shall not take jure representationis, but the estate will go to the other sons of A.
10. Sons, son's sons and their lineal descendants, in how low a degree soever, have no specific share assigned to them: the general rule is that they take all the property after the legal sharers are satisfied, unless there are daughters; in which case each daughter takes a share equal to half of what is taken by each son. For instance, where there are a father, a mother, a husband, a wife, and daughters, but little remains as the portion of sons; but where there are no legal sharers nor daughters, the sons take the whole property.
11. Parents, children, husband and wife must, in all cases, get shares, whatever may be the number or degree of the other heirs.
12. It is a general rule that a brother shall take double the share of a sister. The exception to it is in the case of brothers and sisters by the same mother only, but by different fathers.
13. The portions of those who are legal sharers only, and not residuary heirs, can be stated determinately, but the portions receivable by those who are both sharers and residuaries cannot be stated generally, and must be adjusted with reference to each particular case. For instance, in the case of a husband and wife, who are sharers only, their portion of inheritance is fixed for all cases that can occur; but in the case of daughters and sisters who are, under some circumstances, legal sharers, and under others residuaries, and in the case of fathers and grandfathers who are, under some circumstances, legal sharers only, and under others, residuaries also, the extent of their portions depends entirely upon the degree of relation of the other heirs and their number.
Section II. OF SHARERS AND RESIDUARIES
14. The widow takes an eighth, of her husband's estate where there are children or son's children, how low soever, and a fourth where there are none.
15. The husband takes a fourth of his wife's estate where there are children or son's children, how low soever, and a moiety where there are none.
16. Where there is no son and there is only one daughter, she takes a moiety of the property as her legal share.
17. Where there is no son, and there are two or more daughters, they take two-thirds of the property as their legal share.
18. Where there is no son, nor daughter, nor son's son, the son's daughters take as the daughters, namely, a moiety is the legal share of one and two-thirds of two or more.
19. Where there is one daughter, the son's daughters take a sixth, but where there are two or more daughters they take nothing.
20. Where there is a son's son, however, or a son's grandson, the son's daughters take a share equal to half of what is allotted to the grandson or great-grandson.
21. Brothers and sisters can never take any share of the property, where there is a son or son's son, how low soever, or a father or grandfather.
22. Where there are uterine brothers, the sisters take a share equal to half of what is taken by the brothers; and they being then residuaries, the amount of their shares varies according to circumstances.
23. In default of sons, son's sons, daughters and son's daughters, where there is only one sister and no uterine brother, she takes a moiety of the property.
24. In default of sons, son's sons, daughters and son's daughters, where there are two or more sisters and no uterine brother, they take two-thirds of the property.
25. Where there are daughters or son's daughters and no brothers, the sisters take what remains after the daughters or son's daughters have realized their shares; such residue being half, should there be only one daughter or son's daughter, and one- third should there be two or more.
26. A distinction is made between the two descriptions of half brothers and half sisters. Half brothers and half sisters, who are by the same father only, can never inherit a half brother's estate while there are both brothers and sisters by the same father and mother, but those by the same mother only do inherit with brethren of the whole blood.
27. Where there is only one sister by the same father and mother, the half sisters by the same father only, supposing them to have no uterine brother, take one-sixth as their legal shares.
28. "Where there are two or more sisters by the same father and mother, the half sisters by the same father only, supposing them to have no uterine brother, take nothing.
29. Where, however, the half sisters by the same father only, have an uterine brother, they each take a share equal to half of what is allotted to him.
30. Among brothers and sisters by the same mother only, difference of sex makes no distinction in the amount of the shares, contrary to the case of brothers and sisters by the same father and mother, and brothers and sisters by the same father only; but the general rule of a double share to the male applies to their issue.
31. Where there is one brother by the same mother only, or one sister by the same mother only, his or her share is one-sixth provided there are no children of the deceased nor son's children, nor father, nor grandfather, and where there" are two or more children by the same mother only, their share is one-third.
32. Where there is a son of the deceased, or son's son, how low soever, or two or more brothers and sisters, the father will take one-sixth.
33. Where there are children, or son's children, how low soever, or two or more brothers and sisters, the mother will take one-sixth.
34. Where there are no children, nor son's children, and only one brother or sister, the mother will take one-third with a widow or widower, if she have a grandfather to share with, instead of a father; but a third of the remainder only, after the shares of the widow or widower have been satisfied; if there be a father to share with her.
35. Grandfathers can never take any share of the property where there is a father.
36. Where there is a son of the deceased or son's son, how low soever, and no father, the grandfather will take one-sixth.
37. Grandmothers can never take any share of the property where there is a mother, nor can paternal grand- mothers inherit where there is a father.
38. Paternal female ancestors of whatever degree of ascent are also excluded by the grandfather, except the father's mother; she not being related through the grandfather.
39. The share of a maternal grandmother is one-sixth, and the same share belongs to the paternal grandmother where there is no father.
40. Two or three grandmothers being of equal degree take the sixth equally.
41. But grandmothers who are nearer in degree to the deceased, exclude those who are more distant.
42. A maternal grandfather and the mother of a maternal grandfather are not entitled to any specific share, they being termed false ancestors, and not included in the number of sharers or residuaries.
158 MOHAMMADAN LAW. Chapter I.
Section III. OF DISTANT KINDRED
43. Where there is no son nor daughter, nor son's son, nor son's daughter however low in descent, nor father, nor grandfather, nor other lineal male ancestor, nor mother, nor mother's mother, nor father's mother, nor other lineal female ancestor, nor widow, nor husband, nor brother of the half or whole blood; nor sons, how low soever, of the brethren of the whole blood or of those by the same father only, nor sister of the half or whole blood, nor paternal uncle, nor paternal uncle's son, how low soever (all of whom are termed either sharers or residuaries), the daughter's children and the children of the son's daughters succeed; and they are termed the first class of distant kindred.
44. In default of all those above enumerated, the grandfathers and grandmothers of that description, who are neither sharers nor residuaries, succeed; and they are termed the second class of distant kindred.
45. In their default the sister's children, and the brother's daughters, and the sons of the brothers by the same mother only, succeed; and they are termed the third class of distant kindred.
46. In their default the paternal aunts and uncles by the same mother only, and maternal uncles and aunts succeed; and they are termed the fourth class of distant kindred.
47. In their default the cousins, that is, the children of paternal aunts and uncles by the same mother only, and of maternal uncles and aunts succeed.
48. There is an exception to the above general rules, relative to the succession of distant kindred after residuaries. If the estate to be inherited belonged to an enfranchised slave, his manumittor and the heirs of such manumittor inherit, in preference to the distant kindred of the deceased.
49. The rule with regard to the succession of distant kindred is, that they take according to proximity of degree, and when equal, those who claim through one heir have a preference to those who claim through one not being an heir. For instance, the daughter of a son's daughter and the son of a daughter's daughter are equi- distant in degree from the ancestor: but the former shall be preferred, by reason of the son's daughter being an heir, and the daughter's daughter not being an heir: if there should be a number of these descendants of equal degree, and all on the same footing with respect to the persons through whom they claim, but where the sexes of the ancestors differ in any stage of the ascent, the distribution will be made with reference to such difference of sex; regard being had to the stage at which the difference first appeared: for instance, the two daughters of the daughter of a daughter's son will get twice as much as the two sons of a daughter's daughter's daughter; because one of the ancestors of the former was a male, whose portion is double that of a female.
50. The succession also, with regard to the second class of distant kindred, is regulated nearly in the same manner, by proximity, and by the condition and sex of the person through whom the succession is claimed when the claimants are related on the same side: when the sides of relation differ, two-thirds go to the paternal, and one to the maternal side, without regard to the sex of the claimants.
51. The same rules apply with regard to the third as to the first class of distant kindred; for instance, the brother's son's daughter and the sister's daughter's son are equidistant from the ancestor; but the former shall be preferred by reason of the brother's son being a residuary heir, and where they are equal in this respect the rule laid down for the first class is applicable to this.
52. With regard to the fourth class all that need be said is, that (the sides of relation being equal) uncles and aunts of the whole blood are preferred to those of the half, and those who are connected by the same father only, to those by the same mother only. Where the strength of relation is also equal, as, for instance, where the claimants are a maternal uncle and a maternal aunt, of the whole blood, then the rule is, that the male shall have a share double that of the female. Where, however, one claimant is related through the father only, and the other is related through the mother only, the claimant related through the father shall exclude the other if the sides of their relation are the same; for instance, a maternal aunt by the same father only, will exclude a maternal aunt by the same mother only; but if the sides of their relation differ for instance, if one of the claimants be a paternal aunt by the same father and mother, and the other be a maternal aunt by the same father only, no exclusive pre- ference is given to the former, though she obtains two shares in virtue of her paternal relation.
53. The succession of the children of the above class, that is, the cousins, is regulated by the following rules: propinquity to the ancestor is the first rule. Where that is equal, the claimant through an heir inherits before the claimant through one not being an heir, without respect to the sex of the claimants; for instance, the daughter of a paternal uncle succeeds in preference to the son of a paternal aunt unless the aunt is related on both the father's and mother's sides, and the relation of the uncle be by the same mother only. But where the son of a paternal aunt by the same father and mother, and the son of a maternal aunt by the same father and mother, or by the same father only, claim together, the latter will not be excluded by the former; the only difference is, that two-thirds are the right of the claimant on the paternal side, and one-third that of the claimant on the mother's side. Should there be no difference between the strength of relation, the sides or the sexes of the persons through whom they claim, regard must be had to the sexes of the claimants themselves.
54. In the distribution among the descendants of this class, the same rule is applicable as to the descendants of the first class; for instance, the two daughters of the daughter of a paternal uncle's son will get twice as much as the two sons of the daughter of a paternal uncle's daughter, supposing the relation of the uncles to be the same, and in case of equality in all other respects regard must be had as above, to the sexes of the claimants.
55. In default of distant kindred, he has a right to succeed whom the deceased ancestor acknowledged conditionally, or unconditionally, as his kinsman: provided the acknowledgment was never retracted, and provided it cannot be established that the person in whose favour the acknowledgment was made belongs to a different family.
56. In default of all these, there being no will, the property will escheat to the Public Treasury; but this only where no individual has the slightest claim.
Section IV. PRIMARY RULES OF DISTRIBUTION
57. Where there are two claimants, the share of one of whom is half, and of the other a fourth, the division must be made by four; as in the case of a husband and an only daughter, the property is made into four parts, of which the former takes one and the latter two. The remaining fourth will revert to the daughter.
58. Where there are two claimants, the share of one of whom is half, and of the other an eighth, the division must be made by eight; as in the case of a wife and a daughter, the property is made into eight parts, of which the daughter takes four and the wife one. The surplus three shares revert to the daughter.
59. No case can occur of two claimants, the one entitled to a fourth and the other to an eighth; nor of three claimants, the one entitled to half, the other to a fourth, and the third to an eighth.
60. Where there are two claimants, the share of one of whom is one-sixth, and of the other one-third; as in the case of a mother and father being the only claimants, the property is made into six parts, of which the mother takes two and the father one as his legal share. The surplus three shares revert to the father.
61. Where there are two claimants, the share of one of whom is one-sixth, and of the other two-thirds; as in the case of a father and two daughters being the only claimants, the property is made into six parts, of which the father takes one as his legal share, and the two daughters four. The surplus share reverts to the father.
62. Where there are two claimants, the share of one of whom is one-third, and of the other two-thirds; as in the case of a mother and two sisters, the property is made into three parts, of which the mother takes one and the two sisters two.
63. No case can occur of three claimants, the one entitled to one-sixth, the other to one-third, and the other to two-thirds.
64. Where a husband inherits from his childless wife (his share in this case being one half), and there are other claimants entitled to one-sixth, one-third, or two-thirds, such as a father, a mother, or two sisters, the division must be by six.
65. Where a husband inherits from his wife who leaves children, or a wife from her childless husband (the shares of these persons respectively in these cases being one-fourth), and there are other claimants entitled to one-sixth, one-third, or two-thirds, the division must be made by twelve.
66. Where a wife inherits from her husband, leaving children, her share in that case being one-eighth, and there are other claimants entitled to one-sixth, one-third, or two-thirds, the division must be made by twenty-four.
67. Where six is the number of shares into which it is proper to distribute the estate, but that number does not suit to satisfy all the sharers without a fraction, it may be increased to seven, eight, nine, or ten.
68. Where twelve is the number, and it does not suit, it may be increased to thirteen, fifteen, or seventeen.
69. Where twenty-four is the number and it does not suit, it may be increased to twenty seven.
Section V. RULES OF DISTRIBUTION AMONG NUMEROUS CLAIMANTS
70. Numbers are said to be mutamdsil, or equal, where they exactly agree.
71. They are said to be mutaddkhil, or concordant, where the one number being multiplied, exactly measures the other.
72. They are said to be mutatvdfik, or composite, where a third number measures them both.
73. They are said to be mutabayin, or prime, where no third number measures them both.
74. There are seven rules of distribution, the first three of which depend upon a comparison between the number of heirs and the number of the shares; and the four remaining ones upon a comparison of the numbers of the different sets of heirs, after a comparison of the number of each set of heirs with their respective shares.
75. The first is when, on a comparison of the number of heirs and the number of shares, it appears that they exactly agree, there is no occasion for any arithmetical process. Thus, where the heirs are a father, a mother, and two daughters, the share of the parents is one-sixth each, and that of the daughters two-thirds. Here accord- ing to principle 61, the division must be by six, of which each parent takes one, and the remaining four go to the two daughters.
76. The second is when, on a comparison of the number of heirs and the number of shares, it appears that the heirs.cannot get their portions without a fraction, and that some third number measures them both, when they are termed mutawdfik, or composite; as in the case of a father, a mother and ten daughters. Here, according to principle 61, the division must be by six. But when each parent has taken a sixth, there remain only four to be distributed among the ten daughters, which cannot be done without a fraction, and on a comparison of the number of heirs who cannot get their portions without a fraction, and the number of shares remaining for them, they appear to be composite, or agree in two. In this case the rule is, that half the number of such heirs, which is five, must be multiplied into the number of the original division 6: thus 5 * 6 = 30; of which the parents take ten, or five each, and the daughters twenty, or two each.
77. The third is when, on a comparison of the number of the heirs and the number of shares, it appears that the heirs cannot get their portions without a fraction, and that there is one over and above between the number of shares remaining for them. This is termed mutabayin, or prime, as in the case of a father, a mother, and five daughters. Here also, according to principle 61 above quoted, the division must be by six* But when each parent has taken a sixth, there remain only four to be distributed among the five daughters, which cannot be done without a frac- tion, and on a comparison of the number of heirs who cannot get their portions without a fraction and the num- ber of shares remaining for them, they appear to be muta- bayin, or prime. In this case the rule is, that the whole number of such heirs, which is five, must be multiplied into the number of the original division. Thus 5 * 6 = 30; of which the parents take ten, or five e&ch, and the daughters twenty, or four each.
78. The fourth is when, on a comparison of the dif- ferent sets of heirs, it appears that one or more sets cannot get their portions without a fraction and that all the sets are mutamdsil, or equal, as in.the case of six daughters, three grandmothers, and three paternal uncles; in which case, according to principle 61, the division must be by six. Here, in the first instance, a comparison must be made between the several sets and their respective shares. The share of the daughters is two-thirds, but two-thirds of six is four, and four compared with the number of daughters six, is mutawafik, or composite, agreeing in two. The share of the three grandmothers is one-sixth, but one-sixth of six is one, and one compared with the number of grandmothers is mutabayin, or prime. The remaining share, which is one, will devolve on the three paternal uncles; but one compared with three is also mutabayin, or prime.
Then the rule is, that the sets of heirs themselves must be compared with each other, by the whole where it appears that they were mufaddkhil, or concordant; or mutabayin, or prime; and by the measure where it appears that they were mutawdfik, or composite, and if agreeing in two, by half. In the instance of the daughters, the result of the former comparison was, that they agreed in two; consequently the half of their number must be compared with the whole number of the grandmothers and of the uncles, in whose cases the comparison showed a prime result. Thus 3=3 and 3 = 3, which being mutamdsil, or equal, the rule is, that one of the numbers be multiplied into the number of the original division. Thus 3 * 6 = 18; of which the daughters will take (two-thirds) twelve, or two each; the grandmothers will take (a sixth) three, or one each; and the paternal uncles will take the remaining three, or one each.
79. The fifth is when, on a comparison of the different sets of heirs, it appears that one or more sets cannot get their portions without a fraction, and that the sets are mutaddkhily or concordant; as in the case of four wives, three grandmothers, and twelve paternal uncles. In this case, according to principle 65, the division must be by twelve.
- Here, in the first instance, a comparison must be made between the several sets and their respective shares. Thus the share of the four wives is one-fourth; but the fourth of twelve is three, and three compared with, the number of wives is mutabayin y or prime. The share of the three grandmothers is one-sixth; but the sixth of twelve is two, and two compared with the number of grandmothers is also prime. The remaining shares, which are seven, will devolve on the twelve paternal uncles; but seven compared with twelve is also prime.
- Then the rule is, that the sets of heirs themselves must be compared, the whole of each with the whole of each, as the preceding results show that they are prime, on the comparison of the several heirs with their respective shares.
Thus 4 x 3 = 12, and 3 * 4 = 12, which being concordant, the one number measuring the other exactly, the rule is, that the greater number must be multiplied into the number of the original division. Thus 12 x 12 = 144; of which the wives will get (one-fourth) thirty- six, or nine each; the grandmothers (one- sixth) twenty- four, or eight each; and the paternal uncles the remaining eighty-four, or seven each.
80. The sixth is when, on a comparison of the different sets of heirs, it appears that one or more sets cannot get their portions without a fraction, and that some of the sets are mutaivafik, or composite, with each other: as in the case of four wives, eighteen daughters, fifteen female an- cestors, and six paternal uncles: in which case, according to principle 66, the original division must be by twenty- four. Here, in the first place, a comparison must be made between the several sets and their respective shares. Thus the share of the four wives is an eighth; but an eighth of twenty-four is three, and three compared with the number of wives is mutalayin, or prime. The shares of the eighteen daughters is two-thirds; but two-thirds of twenty-four is sixteen, and sixteen compared with the number of daughters eighteen, is composite, and they agree in two. The share of the fifteen female ancestors is one-sixth; but a sixth of twenty-four is four, and four compared with the number of female ancestors, fifteen, is prime. The remaining share, which is one, will devolve on the six paternal uncles as residuaries; but one and six are prime.
Then the rule is, that the sets of heirs themselves must be compared; by the whole where the preceding result shows that they were prime, and by their measure where it shows that they were composite. Thus 4 x 2 = 9 1, which being prime, the one number must be multiplied by the other. This result must then be compared with the whole of the third set; because the preceding result shows that set to have been prime. Thus 15><2 = 3 6 6 and 6 = 15 9 and 6 =9 3, which agreeing in three, the third of one number, must be multiplied into the whole of the other. This result must also be compared with the whole of the fourth set; because the preceding result shows that set to have been prime. Thus 6 x 30 = 180, which being concordant or agreeing in six, the sixth of one num- ber must be multiplied into the whole of the other; but as it is obvious that by this process the result would still be the same, multiplication is needless. Then this result must be multiplied into the number of the original division. Thus 180 x 24 = 4320; of which the four wives will get an eighth, five hundred and forty, or one hundred and thirty-five each; the eighteen daughters two-thirds, two thousand eight hundred and eighty, or one hundred and sixty each; the female ancestors one- sixth, seven hundred and twenty, or forty-eight each; and the paternal uncles the remaining one hundred and eighty, or thirty each.
81. The seventh and last is when, on a comparison of the different sets of heirs, it appears that all the sets are mutabayin, or prime, and no one of them agrees with the other; as in the case of two wives, six female ancestors, ten daughters, and seven paternal uncles. Here, according to principle 66, the original division must be by twenty-four.
In the first instance, a comparison must be made between the several sets of heirs and their respective shares. Thus the share of the two wives is one-eighth; but the eighth of twenty- four is three, and three compared with the num- ber of wives is prime. The share of the six female an- cestors is one-sixth; but the sixth of twenty-four is four, and four compared with the number of female ancestors is composite, or agrees in two. The share of the ten daughters is two- thirds, and two- thirds of twenty-four is sixteen, and sixteen compared with the number of daughters is also composite or agrees in two. The remaining share, which is one, will devolve on the seven paternal uncles; but one and seven are prime.
Then the rule is, that the sets of heirs themselves must be compared; by the whole where the preceding result shows that they were prime, and by the half or other measure, where it shows that they were composite. Agreeably to this rule the whole of the first set of heirs must be compared with half the second: thus 2 = 3 1, which num- bers being prime must be multiplied into each other. Then the result must be compared with the half of the next set, the former result having here also agreed in two. Thus 5 = 6 1, which being prime, must be multiplied into each other. Then the result must be compared with the whole of the next set, the former result here having been prime. Thus 7*4 = 30 2 and 2x3=7 1, which being also prime, must be multiplied into each other. Thus 30 x 7 = 210, in which case the rule is, that this last product must be multiplied into the number of the original division. Thus 210 x 24 = 5040; of which the wives will take an eighth, six hundred and thirty, or three hundred and fifteen each; the female ancestors a sixth, eight hundred and forty, or one hundred and forty each; the daughters two-thirds, three thousand three hundred and sixty, or three hundred and thirty-six each; and the paternal uncles the remaining two hundred and ten, or thirty each.
82. When the whole number of shares into which an estate should be made, has been found, the mode of ascertaining the number of portions to which each set of heirs is entitled, is to multiply the portions originally assigned them, by the same number by which the aggregate of the original portions was multiplied; as an easy example of which rule the following case may be mentioned. There are a widow, eight daughters, and four paternal uncles; the shares of the two first sets being one-eighth and two-thirds, the estate, according to principle 66, must be made originally into twenty-four parts, of which the widow is entitled to three, the daughters to sixteen, and there remain five to be divided among the four paternal uncles, but which, cannot be done without a fraction. Here the proportion between the shares and the heirs who cannot get their portions without a fraction, must be ascertained, and 4 = 5 1 being prime, the rule is (see No. 77), to multiply the number of the original division by the whole number of heirs so situated. Thus 24 * 4 = 96. Here, to find the shares of each set, multiply what each was originally declared entitled to, by the number by which the aggregate of all the original portions was multiplied. Thus 3 x 4 = 12, the share of the widow; 16 x 4 = 64, the share of the daughters; and 5 x 4 = 20, the share of the paternal uncles.
83. To find the portion of each individual in the several sets of heirs, ascertain how many times the number of persons in each set may be multiplied into the number of shares ultimately assigned to each set. Thus 8 x 8 = 64, and 5x4 = 20. Here eight will be the share of each daughter, and four the share of each paternal uncle, which, with the twelve which formed the share of the widow, will make up the required number ninety-six.
Section VI. OF THE EXCLUSION FROM AND PARTIAL SURRENDER OF INHERITANCE
84. Exclusion is either entire or partial. By entire exclusion is meant, the total privation of right to inherit. By partial exclusion is meant, a diminution of the portion to which the heir would otherwise be entitled. Entire exclusion is brought about by some of the personal disqualifications enumerated in principle (6), or by the intervention of an heir, in default of whom a claimant would have been entitled to take, but by reason of whose intervention he has no right of inheritance.
85. Those who are entirely excluded by reason of personal disqualification, do not exclude other heirs either entirely or partially; but those who are excluded by reason of some intervening heir, do, in some instances, partially exclude others.
86. For instance, a man dies, leaving a father, a mother, and two sisters, who are infidels. Here the mother will get her third, notwithstanding the existence of the two infidel sisters, who are excluded by reason of their personal disqualification; but had they not been infidels, she would only have been entitled to a sixth, although the sisters, who partially exclude her, are themselves entirely excluded by reason of the intervention of the father.
87. If one of the heirs choose to surrender his portion of the inheritance for a consideration, still he must be included in the division. Thus in the case of there being a husband, a mother, and a paternal uncle, the shares are one-half and one-third. Here, according to principle 64, the property must be made into six shares; of which the husband was entitled to three, the mother to two, and the paternal uncle, as a residuary, to the remaining one. Now supposing the estate left to amount to six lacks of rupees, and the husband to content himself with two, still, as far as affects the mother, the division must be made as if he had been a party, and of the remaining four lacks the mother must get two; otherwise, were lie not made a party, the mother would get only one- third of four, instead of one-third of six lacks as her legal share, and the remainder would go to the uncle as residuary.
Section VII. ON THE INCREASE
88. The increase is where there are a certain number of legal sharers, each of whom is entitled to a specific portion, and it is found, on a distribution of the shares into which it is necessary to make the estate, that there is not a sufficient number to satisfy the just demands of all the claimants.
89. It takes effect in three cases; either when the estate should be made into six shares, or when it should be made into twelve, or when it should be made into twenty-four. See principles (67, 68, 69). One example will suffice.
90. A woman leaves a husband, a daughter, and both parents. Here the property should be made into twelve parts, of which, after the husband has taken his fourth or three, and the parents have taken their two-sixths or four, there remain only five shares for the daughter instead of six, or the moiety to which by law she is entitled. In this case the number twelve, into which it was necessary to make the estate, must be increased to thirteen, with a view of enabling the daughter to realize six shares of the property.
Section VIII. OF THE RETURN
91. The return is where there being no residuaries, the surplus, after the distribution of the shares, returns to the sharers, and the doctrine of it is as follows:
92. It takes effect in four cases; first, where there is only one class of sharers unassociated with those not entitled to claim the return, as in the instance of two daughters or two sisters; in which case the surplus must be made into as many shares as there are sharers, and distributed among them equally.
93. Secondly, where there are two or more classes of sharers, unassociated with those not entitled to claim the return, as in the instance of a mother and two daughters; in which case the surplus must be made into as many shares as may correspond with the shares of inheritance to which the parties are entitled, and distributed accordingly. Thus the mother's share being one-sixth, and the two daughters' share two-thirds, the surplus must be made into six, of which the mother will take two and the daughters four.
94. Thirdly, when there is only one class of sharers, associated with those not entitled to claim to return, as in ** the instance of three daughters and a husband, in which case the whole estate must be divided into the smallest number of shares of which it is susceptible, consistently with giving the person excluded from the return his share of the inheritance (which is in this case four), and the husband will take one as his legal share or a fourth, the remaining three going to the daughters as their legal shares and as the return; but if it cannot be so distributed without a fraction, as in the case of a husband and six daughters (three not being capable of division among six), the proportion must be ascertained between the shares and sharers. Thus 3 * 2 = 6, which agreeing in three, the rule is, that the number 4, into which the estate was intended to be distributed, must be multiplied by 2, that is, the measure or a third of the number of those entitled to the return. Thus 4*2 = 8, of which the husband will take two, and the daughters six, or one each; and if on a comparison as above, the result should be prime, as in the case of a husband and five daughters, the number 4, into which it was intended to distribute the estate, must be multiplied by 5, or the whole of the number of those entitled to a return. Thus 4 x 5 = 20, of which the husband will take five, and the daughters fifteen, or three each.
95. Fourthly, where there are two or more classes of sharers, associated with those not entitled to claim the return, as in the instance of a widow, four paternal grandmothers, and six sisters by the same mother only; in which case the whole estate must be divided into the smallest number of shares of which it was susceptible, consistently with giving the person excluded from the return her share of the inheritance (which is in this case four). Then after the widow has taken her share, there remain three to be divided among the grandmothers and half sisters; but the share of the grandmothers is one-sixth, and of the half sisters one-third, and here, to give them their portions, the remainder should be made into six: but a third and a sixth of this number, amount to three, which agrees with the number to be divided among them; of which the half sisters will take two, and the grandmothers one. Had there been only one grandmother, and only two half sisters, there would have been no neces- sity for any further process, as the grandmother would have taken one-third, and the two half sisters the other two- thirds. But it is obvious, that two shares cannot be dis- tributed among the six half sisters nor one among the four paternal grandmothers without a fraction. To find the number into which the remainder should be made, recourse must be had to the seventh principle of distribution. The proportion between the shares and the sharers respectively must first be ascertained. Thus 2 * 3 = 6, which being composite or agreeing in two, and 1 x 3 = 4 1, which being prime, the whole of one set of sharers must be com- pared with the half of the other. Thus 3 = 4 1, which also being prime, one of the numbers must be multiplied by the other. Thus 3 x 4 = 12; and having found this number it must be multiplied into that of the original division. Thus 4 x 12 = 48, of which the grandmothers will get 12, or three each, 12 being to 48 as 1 to 4, and ^he half sisters 24, or 4 each, 24 being to 48 as 2 to 4, and the widow will take the remaining twelve. It is different if the shares of the persons entitled to a return do not agree with the number left for them, after deducting the share of the person not entitled to a return, as in the case of a widow, nine daughters and six paternal grandmothers. Here the property must in the first instance be made into eight shares, being the smallest number of which it is susceptible, consistently with giving the widow her share. Then, after the widow has taken her share, there remain seven to be divided among the daughters and the grandmothers; but the share of the grandmothers is one- sixth, and of the daughters two-thirds; and here to give them their portions the property divisible among them should be made into six parts; but a sixth and two-thirds of this number amount to five, which disagrees with the number to be divided among them; in which case the rule is, that the number of shares of those entitled to a return, must be multiplied by the number into which it was necessary to make the property originally. Thus 8 x 5 = 40, of which the widow will take five, the daughters will take twenty-eight, and the grandmothers seven. But it is obvious, that twenty-eight cannot be distributed among the nine daughters, nor seven among the six paternal grand- mothers, without a fraction. To find the number into which the remainder should be distributed, recourse should be had to the sixth principle of distribution. The proportion between the shares and the sharers respectively must first be ascertained. Thus 9 x 3 = 28 1, and 6 = 7 1, both of which being prime, the whole of one set of sharers must be compared with the whole of the other set. Thus 6 _ 9 3, which being concordant, or agreeing in three, the rule is that the third of one of the numbers must be multiplied into the whole of the other. Thus 3 x 6 =18; and having found this number it must be multiplied into that of the pre- ceding result. Thus 40 x 18 = 720, of which the daughters will get 504, or 56 each, 504 being to 720 as 28 to 40; the
180 MOHAMMADAN LAW. Chapter I.
grandmothers will get 126, or 21 each, 126 being to 720 as 7 to 40; and the- widow will get the remaining ninety.
Section IX. OF VESTED INHERITANCES
96. Where a person dies and leaves heirs, some of whom die prior to any distribution of the estate, the survivors are said to have vested interests in the inheri- tance; in which case the rule is, that the property of the first deceased must be apportioned among his several heirs living at the time of his death, and it must be supposed that they received their respective shares accordingly.
97. The same process must be observed with reference to the property of the second deceased, with this difference, that the proportion must be ascertained between the number of shares to which the second deceased was entitled at the first distribution, and the number into which it is requisite to distribute his estate to satisfy all the heirs.
98. If the proportion should appear to be prime, the rule is, that the aggregate and individual shares of the pre- ceding distribution must be multiplied by the whole number of shares into which it is necessary to make the estate, at the subsequent distribution, and the individual shares at the subsequent distribution must be multiplied by the number of shares to which the deceased was entitled at the pre- ceding one.
99. If the proportion should be concordant, or composite, the rule is, that the aggregate and individual shares of the preceding distribution must be multiplied by the measure of the number of shares into which it is necessary to make the estate at the subsequent distribution; and the individual shares at the subsequent distribution must be multiplied by the measure of the number of shares to which the deceased was entitled at the preceding distribution.
100. For instance, a man dies leaving A, his wife, B and C, his two sons, and D and E, his two daughters; of whom A and D died before the distribution, the former leaving a mother, and the latter a husband.
At the first distribution the estate should be made into forty- eight shares, of which the widow will get six, the sons fourteen each, and the daughters seven each. On the death of the widow, leaving a mother and the above four children, her estate should, in the first instance, be made into thirty- six parts, of which the mother is entitled to six, the sons to ten each, and the daughters to five each; but being a case of vested inheritance, it becomes requisite to ascertain the proportion between the number of shares to which she was entitled at the preceding distribution, and the number into which it is necessary to make the estate. Thus 6 x 6=36, which proving concordant, or agreeing in six, the rule is, that the aggregate and individual shares of the preceding distribution be multiplied by six, or the measure of the number of shares into which it is necessary to make the estate at the second distribution. Thus 48x6 = 288, and 14x6 = 84 and 7 x 6=42; but the measure of the number to which the deceased was entitled at the preceding distribution being only one, it is needless to multiply by it the shares at the second distribution. On the death of one of the daughters, leaving her two brothers, her sister, and a husband, her estate should, in the first instance, be made into ten parts, of which her husband is entitled to five, her brothers -to two each, and her sister to one; but being a case of vested inheritance, it becomes necessary to ascertain the propor- tion between the number of shares to which she was entitled at the preceding distribution, and the number into which it is necessary to make her estate. But she derived forty-seven shares from the preceding distributions (five at the second and forty- two at the first). Thus 10 x 4=477, and 7 = 103, and 3=7 4, and 3=41, which proving prime or agreeing in a unit only, the rule is, that the aggregate and individual shares of the preceding distributions be multiplied by ten, or the whole number of shares into which it is necessary to make the estate at the third distribution. Thus 288 * 10 = 2880, and 84 x 10 = 840, and 42 x 10 = 420, and 6 x 10 = 60, and 10 x 10 = 100, and 5 x 10 == 50. Then the shares at the third distribution should be multiplied by the number of shares to which the deceased sister was entitled at the preceding distributions. Thus 5 x 47 = 235, and 2 x 47 = 94, and 1 x 47 = 47. Therefore of the 2880 shares, the son B will get 840 + 100 + 94 = 1034; the son C 840 + 100 4- 94 = 1034; the daughter E 420 + 50 + 47 = 517; the mother of A 60, and the husband of D 235.
Section X. OF MISSING PERSONS AND POSTHUMOUS CHILDREN
101. The property of a missing person is kept in abeyance for ninety years. His estate in this interval cannot derive any accession from the immediate death of others, nor can any person who dies during this interval inherit from him.
102. If a missing person be a coheir with others, the estate will be distributed as far as the others are concerned, provided they would take at all events, whether the missing person were living or dead. Thus in the case of a person dying, leaving two daughters, a missing son, and a son and daughter of such missing son. In this case the daughters will take half the estate immediately, as that must be their share at all events; but the grandchildren will not take any thing, as they are precluded on the supposition of their father being alive.
103. Where a person dies leaving his wife pregnant, and he has sons, the share of one son must be reserved in case a posthumous son should be born.
104. Where a person dies leaving his wife pregnant, and he has no sons, but there are other relatives who would succeed in the event only of his having no child (as would be the case, for instance, with a brother or sister), no immediate distribution of the property takes place.
105. But if those other relatives would succeed at all events to some portion (larger without than with a child, as would be the, case, for instance, with a mother), the property will be distributed, and the mother will obtain a sixth, the share to which she is necessarily entitled, and afterwards, if the child be not born alive, her portion will be augmented to one-third.
Section XI. DE COMMORIENTIBUS
106. Where two or more persons meet with a sudden death about the same time, and it is not known which died first, it will be presumed according to one opinion, that the youngest survived longest; but according to the more accurate and prevailing doctrine, it will be presumed that the death of the whole party was simultaneous, and the property left will be distributed among the surviving heirs, as if the intermediate heirs who died at the same time with the original proprietor had never existed.
Section XII. Of the Distribution of Assets
107. What has preceded relates to the ascertainment of the shares to which the several heirs are entitled; but when the proper number of shares into which an estate should be made, may have been ascertained, it seldom happens that the assets of the estate exactly tally with such number; in other words, if it be found that the estate should be made into ten, or into fifty shares, it would seldom happen that the assets exactly amount in value to ten or fifty gold mohurs or rupees. To ascertain the proper shares of the different sets of heirs and creditors in such cases, the following rules are laid down:
108. When the number of shares has been found into which the estate should be divided, and the number of shares to which each set of heirs is entitled, the former number must be compared with the number of assets. If these numbers appear to be prime to each other, the rule is, that the share of each set of heirs must be multiplied into the number of assets, and the result divided by the number of shares into which it was found necessary to make the estate. For instance, a man dies, leaving a widow, two daughters and a paternal uncle, and property to the amount of 25 rupees. In this case, the estate should be originally divided into 24, of which the widow is entitled to 3, the daughters to 16, and the uncle to 5. Now to ascertain what shares of the estate left these heirs are entitled to, the above rule must be observed. Thus 3 x 25 = 75, and 16 x 25 = 400, and 5 x 25 =125; but 75 -f- 24 = 3 3 T, and 400 ~ 24 = l&i, and 125 -f- 24 = 5/ T.
109. If the numbers are composite, the rule is that the share of each set of heirs must be multiplied into the measure of the number of the assets, and the result divided by the measure of the number of shares into which it was found necessary to make the estate. For instance, a man dies, leaving the same number of heirs as above and property to the amount of fifty rupees. Now as 24 and 50 agree in 2 the measure of both numbers is half. Thus 3 x 25 = 75, and 16 x 25 = 400, and 5 x 25 = 125; but 75 + 12 = 6fV, and 400 -=- 12 = 33 r \, and 125 -:- 12
110. If it be desired to ascertain the number of shares of the assets to which each individual heir is entitled, the same process must be resorted to, with this difference, that the number of assets must be compared with the share originally allotted to each individual heir, and the multiplication and division proceeded on as above. For instance, in the above case the original share of each daughter was 8, and 8 x 25 = 200, and 200 -^ 12 = 16 T V
111. In a distribution of assets among creditors the rule is, that the aggregate sum of their debts must be the number into which it is necessary to make the estate, and the sum of each, creditor's claim must be considered as his share. For instance, supposing the debt of one creditor to, amount to 16 rupees, of another to 5; and of another to 3, and the debtor to have left property to the amount of 21 rupees. By observing the same process as that laid down in principle (109), it will be found that the creditor to whom the debt of sixteen rupees was due, is entitled to 14 rupees, the creditor of 5 rupees to 4 rupees 6 annas, and the creditor of 3 rupees to 2 rupees 10 annas.
Section XIII. OF PARTITION
112. "Where two persons, claim partition of an estate which has devolved on them by inheritance, it should be granted; and so also where one heir claims it, provided the property admit of separation without detriment to its utility.
113. But where the property cannot be separated without detriment to its several parts, the consent of all the coheirs is requisite; so also where the estate consists of articles of different species.
114. On the occasion of a partition, the property (where it does not consist of money) should be distri- buted into several distinct shares, corresponding with the portions of the coheirs; each share should be ap- praised, and then recourse should be had to drawing of lots.
115. Another common mode of partition is by usufruct, where each heir enjoys the use or the profits of the property by rotation; but this method is subordinate to actual partition, and where one coheir demands separation, and the other a division of the usufruct only, the former claim is entitled to preference in all practicable cases.
Chapter II. OF INHERITANCE ACCORDING TO THE IMAMIYA, OR SHIA DOCTRINE
1. According to the tenets of this Sect, the right of inheritance proceeds from three different sources.
2. First, it accrues by virtue of consanguinity. Secondly, by virtue of marriage. Thirdly, by virtue of Willa.
3. There are three degrees of heirs who succeed by virtue of consanguinity, and so long as there is any one of the first degree, even though a female, none of the second degree can inherit; and so long as there is any one of the second degree, none of the third can inherit.
4. The first degree comprises the parents, and the children, and grandchildren, how low in descent soever, the nearer of whom exclude the more distant. Both parents, or one of them inherit together with a child, a grandchild, or a great-grandchild; but a grandchild does not inherit together with a child, nor a great-grand-child with a grandchild.
5. This degree is divided into two classes; the roots which are limited and the branches which are unlimited. The former are the parents who are not represented by their parents; the latter are the children who are represented by their children. An individual of one class does not exclude an individual of the other, though his relation to the deceased be more proximate; but the individuals of either class exclude each other in proportion to their proximity.
6. No claimant has a title to inherit with children, but the parents, or the husband and wife.
7. The children of sons take the portions of sons, and the children of daughters take the portions of daughters, however low in descent.
8. The second degree comprises the grandfather, and grandmother, and other ancestors, and brothers, and sisters, and their descendants, however low in descent, the nearer of whom exclude the more distant. The great-grandfather cannot inherit together with a grandfather or a grandmother; and the son of a brother cannot inherit with a brother or a sister, and the grandson of a brother cannot inherit with the son of a brother, or with the son of a sister.
9. This degree again is divided into two classes; the grand-parents and other ancestors, and the brethren and their descendants. Both these classes are unlimited, and their representatives in the ascending and descending line, may be extended ad infinitum. An individual of one class does not exclude an individual of the other, though the relation to the deceased be more proximate; but the individuals of either class exclude each other in proportion to thjeir proximity.
10. The third degree comprises the paternal and maternal uncles and aunts and their descendants, the nearer of whom exclude the more distant. The son of a paternal uncle cannot inherit with a paternal uncle, or a paternal aunt, nor the son of a maternal uncle with a maternal uncle or a maternal aunt.
11. This degree is unlimited in the ascending and descending line, and their representatives may be extended ad infinitum; but so long as there is a single aunt or uncle of the whole blood, the descendants of such persons cannot inherit. Uncles and aunts all share together; except some be of the half and others of the whole blood. A paternal uncle by the same father only is excluded by a paternal uncle by the same father and mother; and the son of a paternal uncle by the whole blood excludes a paternal uncle of the half blood.
12. In default of all the heirs above enumerated, the paternal and maternal uncles and aunts of the father and mother succeed, and in their default their descendants, to the remotest generation, according to their degree of proximity to the deceased. In default of all those heirs, the paternal and maternal uncles and aunts of the grand- parents and great- grandparents inherit according to their degree of proximity to the deceased.
13. It is a general rule that the individuals of the whole blood exclude those of the half blood who are of the same rank; but this rule does not apply to individuals of different ranks. For instance, a brother. or sister of the whole blood excludes a brother or sister of the half blood: a son of the brother of the whole blood, however, does not exclude a brother of the half blood, because they belong to different ranks: but he would exclude a son of the half brother who is of the same rank; so also an uncle of the whole blood does not exclude a brother of the half blood, though he does an uncle of the half blood.
14. The principle of the whole blood excluding the half blood, is confined also to the same rank, among collaterals: for instance, generally a nephew or niece whose father was of the whole blood, does not exclude his or her uncle or aunt of the half blood; except in the case of there being a son of a paternal uncle of the whole blood, and a paternal uncle of the half blood by the same father only, the latter of whom is excluded by the former.
15. This principle of exclusion does not extend to uncles and aunts being of different sides of relation to the deceased; for instance, a paternal uncle or aunt of the whole blood does not exclude a maternal uncle or aunt of the half blood; but a paternal uncle or aunt of the whole blood excludes a paternal uncle or aunt of the half blood, and so likewise, a maternal uncle or aunt of the whole blood excludes a maternal uncle or aunt of the half blood.
16. If a man leave a paternal uncle of the half blood, and a maternal aunt or* the whole blood, the former will take two-thirds in virtue of his claiming through the father, and the latter one-third in virtue of her claiming through the mother; as the property would have been divided between the parents in that proportion, had they been the claimants instead of the uncle and aunt.
17. The general rule, that those related by the same father and mother, exclude those who are related by the same mother only, does not operate in the case of individuals to whom a legal share has been assigned.
18. If a man leave a whole sister and a sister by the same mother only, the former will take half the estate and the latter one- sixth, the remainder reverting to the whole sister; and if there be more than one sister by the same mother only, they will take one- third and the remaining two-thirds will go to the whole sister.
19. Where there are two heirs, one of whom stands in a double relation: for instance, if a man die leaving a maternal uncle, and a paternal uncle who is also his maternal uncle, the former will take one-third, and the latter two-thirds, and he will be further entitled to take one half of the third which devolved on the maternal uncle; and thus he will succeed altogether to five-sixths, leaving the other but one-sixth.
20. Secondly, those who succeed in virtue of marriage are the husband and wife, who can never be excluded in any possible case; and their shares are half for the husband, and a fourth for the wife, where there are no children, and a fourth for the husband, and an eighth for the wife, where there are children.
21. Where a wife dies, leaving no other heir, her whole property devolves on her husband; and where a husband dies leaving no other heir but his wife, she is only entitled to one-fourth of his property, and the remaining three-fourths will escheat to the public treasury.
22. If a sick man marry and die- of that sickness without having consummated the marriage, his wife shall not inherit his estate; nor shall he inherit if his wife die before him, under such circumstances. But if a sick woman marry, and her husband die before her, she shall inherit of him, though the marriage was never consummated, and though she never recovered from that sickness.
23. If a man on his death bed divorce his wife, she shall inherit, provided he die of that sickness within one year from the period of divorce; but not if he lived for upwards of a year.
24. In case of a reversible divorce, if the husband die within the period of his wife's probation, or if she die within that period, they have a mutual right to inherit each other's property.
25. The wife by an usufructuary, or temporary marriage, has no title to inherit.
26. Thirdly, those who succeed in virtue of Witta; but they never can inherit so long as there is any claimant by consanguinity or marriage.
27. Witta is of two descriptions; that which is derived from manumission, where the emancipator by such act derives a right of inheritance; and that which depends on mutual compact, where two persons reciprocally engage, each to be heir of the other.
28. Claimants under the latter title are excluded by claimants under the former.
29. The general rules of exclusion, according to this sect, are similar to those contained in the orthodox doctrine; except that they make no distinction between male and female relations. Thus a daughter excludes a son's son, and a maternal uncle excludes a paternal grand uncle; whereas according to the orthodox doctrine in such cases, the daughter would get only half, and the maternal uncle would be wholly excluded by the paternal uncle of the father.
30. Difference of allegiance is no bar to inheritance, and homicide, whether justifiable or accidental, does not operate to exclude from the inheritance. The homicide, to disqualify, must have been of malice prepense.
31. The legal number of shares into which it is necessary to make the property, cannot be increased if found insufficient to satisfy all the heirs without a fraction. In such case a proportionate deduction will be made from the portion of such heir as may, under certain circumstances, be deprived of a legal share, or from any heir whose share admits of diminution. For instance, in the case of a husband, a daughter and parents. Here the property must be divided into twelve, of which the husband is entitled to three, or a fourth; the parents to two-sixths, or four, and the daughter to half; but there remain only five shares for her instead of six, or the moiety to which she is entitled. In this case, according to the orthodox doctrine, the property would have been made into thirteen parts to give the daughter her six shares; but according to the Imamiya tenets, the daughter must be content with the five shares that remain, because in certain cases her right as a legal sharer is liable to extinction; for instance, had there been a son, the daughter would not have been entitled to any specific share, and she would become a residuary; whereas the husband or parents can never be deprived of legal share, under any circumstances.
32. Where the assets exceed the number of heirs the surplus reverts to the heirs. The husband is entitled to share in the return; but not the wife. The mother also is not entitled to share in the return, if there are brethren: and where there is any individual possessing a double relation, the surplus reverts exclusively to such individual.
Chapter III. OF SALE
1. Sale is defined to be a mutual and voluntary exchange of property for property.
2. A contract of sale may be effected by the express agreement of the parties, or by reciprocal delivery.
3. Sale is of four kinds; consisting of commutation of goods for goods: of money for money: of money for goods: and of goods for money; which last is the most ordinary species of this kind of contract.
4. Sales are either absolute, conditional, or imperfect, or void.
5. An absolute sale is that which takes place immediately; there being no legal impediment.
6. A conditional sale is that which is suspended on the consent of the proprietor, or (where he is a minor) on the consent of his guardian, in which there is no legal impediment, and no condition requisite to its completion but such consent.
7. An imperfect sale is that which takes effect on seizin; the legal defect being cured by such seizin.
8. A void sale is that which can never take effect; in which the articles opposed to each other, or one of them, not bearing any legal value, the contract is null.
( 9. The consideration may consist of whatever articles, bearing a legal value, the seller and purchaser may agree upon; and the property may be sold for prime cost, or for more, or for less than prime cost.
10. It is requisite that there should be two parties to every contract of sale, except where the seller and purchaser employ the same agent, or where a father or a guardian makes a sale on behalf of a minor, or where a slave purchases his own freedom by permission of his master.
11. It is sufficient that the parties have a sense of the obligation they contract, and a minor, with the consent of his guardian, or a lunatic in his lucid intervals, may be contracting parties.
12. In a commutation of goods for goods, or of money for money, it is illegal to stipulate for a future period of delivery; but in a commutation of money for goods or of goods for money, such stipulation is authorised.
13. It is essential to the validity of every contract of sale, that the subject of it, and the consideration, should be so determinate as to admit of no future contention regarding the meaning of the contracting parties.
14. It is also essential that the subject of the contract should be in actual existence at the period of making the contract, or that it should be susceptible of delivery, either immediately or at some future definite period.
15. In a commutation of money for money or of goods for goods, if the articles opposed to each, other are of the nature of similars, equality in point of quantity is an essential condition.
16. It is unlawful to stipulate for any extraneous condition, involving an advantage to either party, or for any uncertainty which might lead to future litigation; but if the extraneous condition be actually performed, or the uncertainty removed, the contract will stand good.
17. It is lawful to stipulate for an option of dissolving the contract; but the term stipulated should not exceed three days.
18. When payment is deferred to a future period, it must be determinate and cannot be suspended on an event, the time of the occurrence of which is uncertain, though its occurrence be inevitable. For instance, it is not lawful to suspend payment until the wind shall blow, or until it shall rain, nor is it lawful, even though the uncertainty be so inconsiderable as almost to amount to a fixed term; for instance, it is not lawful to suspend payment until the sowing or reaping time.
19. It is not lawful to sell property in exchange for a, debt due from a third party, though it is for a debt due from the seller.
20. A resale of personal property cannot be made by the purchaser until the property shall actually have come into his possession.
21. A warranty as to freedom from defect and blemish, is implied in every contract of sale.
22. Where the property sold differs, either with respect to quantity or quality from what the seller nas described it, the purchaser is at liberty to recede from the contract.
23. By the sale of land, nothing thereon, which is of a transitory nature, passes. Thus the fruit of a tree belongs to the seller, though the tree itself, being a fixture, appertains to the purchaser of the land.
24. Where an option of dissolving the contract has been stipulated by the purchaser, and the property sold is injured or destroyed in his possession, he is responsible for the price agreed upon: but where the stipulation was on the part of the seller, the purchaser is responsible for the value only of the property.
25. But the condition of option is annulled by the purchaser's exercising any act of ownership, such as to take the property out of statu quo.
26. Where the property has not been seen by the purchaser, nor a sample (where a sample suffices), he is at liberty to recede from the contract, provided he may not have exercised any act of ownership; if upon seeing the property it does not suit his expectation, even though no option may have been stipulated.
27. But though the property have not been seen by the seller, he is not at liberty to recede from the contract (except in a sale of goods for goods), where no option was stipulated.
28. A purchaser who may not have agreed to take the property with all its faults, is at liberty to return it to the seller on the discovery of a defect, of which he was not aware at the time of the purchase, unless while in the hands of the purchaser it received a further blemish; in which case he is only entitled to compensation.
9. But if the purchaser have sold such faulty article to a third person, he cannot exact compensation from the original seller; unless by having made an addition to the article prior to the sale, he was precluded from returning it to the original seller.
30. In a case where articles are sold, and are found on examination to be faulty, complete restitution of the price may be demanded from the seller, even though they have been destroyed in the act of trial, if the purchaser had not derived any benefit from them; but if the purchaser had made beneficial use of the faulty articles, he is only entitled to proportional compensation.
31. If a person sell an article which he had purchased, and be compelled to receive back such article and to refund the purchase money, he is entitled to the same remedy against the original seller, if the defect be of an inherent nature.
32. If a purchaser, after becoming aware of a defect in the article purchased, make use of the article or attempt to remove the defect, he shall have no remedy against the seller (unless there may have been some special clause in the contract); such act on his part implying acquiescence.
33. It is a general rule, that if the articles sold are of such a nature as not easily to admit of separation or division without injury, and part of them, subsequently to the purchase, be discovered to be defective, or to be the property of a third person, it is not competent to the purchaser to keep a part and to return a part, demanding a proportional restitution of the price for the part returned. In this case he must either keep the whole, demanding compensation for the proportion that is defective, or he must return the whole, demanding complete restitution of the price. It is otherwise where the several parts may be separated without injury.
34. The practices of forestalling, regrating, and en- grossing, and of selling on Friday, after the hour of prayer, are all prohibited, though they are valid.
Chapter IV. OF SHUFAA, OR PRE-EMPTION
1. Shufaa, or the right of pre-emption, is defined to be a power of possessing property which has been sold, by paying a sum equal to that paid by the purchaser.
2. The right of pre-emption takes effect with regard to property sold, or parted with by some means equivalent to sale, but not with regard to property the possession of which has been transferred by gift, or by will, or by inheritance; unless the gift was made for a consideration, and the consideration was expressly stipulated; but pre- emption cannot be claimed where the donor has received a consideration for his gift, such consideration not having been expressly stipulated.
3. The right of pre-emption takes effect with regard to property whether divisible or indivisible; but it does not apply to moveable property, and it cannot take effect until after the sale is complete, as far as the interest of the seller is concerned.
4. The right of pre-emption may be claimed by all descriptions of persons. There is no distinction made on account of difference of religion.
5. All rights, and privileges which belong to an ordi- nary purchaser, belong equally to a purchaser under the right of pre-emption.
6. The following persons may claim the right of pre-emption in the order enumerated: a partner in the property sold, a participator in its appendages, and a t neighbour.
7. It is necessary that the person claiming this right, should declare his intention of becoming the purchaser, immediately on hearing of the sale, and that he should, with the least practicable delay, make affirmation, by witness, of such his intention, either in the presence of the seller, or of the purchaser, or on the premises.
8. The above preliminary conditions being fulfilled, the claimant of pre-emption is at liberty at any subsequent period to prefer his claim to a Court of Justice.
9. The first purchaser has a right to retain the property until he has received the purchase money from the claimant by pre-emption, and so also the seller in a case where delivery may not have been made.
10. Where an intermediate purchaser has made any improvements to the property, the claimant by pre-emption must either pay for their value, or cause them to be removed; and where the property may have been deteriorated by the act of the intermediate purchaser, he (the claimant) may insist on a proportional abatement of the price; but where the deterioration has taken place without the instrumentality of the intermediate purchaser, the claimant by pre-emption must either pay the whole price, or resign his claim altogether.
11. But a claimant by pre-emption having obtained possession of, and made improvements to property, is not entitled to compensation for such improvements, if it should afterwards appear that the property belonged to a third person. He will, in this case, recover the price from the seller or from the intermediate purchaser (if possession had been given), and he is at liberty to remove his improvements.
12. Where there is a dispute between the claimant by pre-emption and the purchaser, as to the price paid, and neither party have evidence, the assertion, on oath, of the purchaser must be credited; but where both parties have evidence, that of the claimant by pre-emption should be received in preference.
13. There are many legal devices by which the right of pre-emption may be defeated. For instance, where a mail fears that his neighbour may advance such a claim, he can sell all his property with the exception of that part immediately bordering on his neighbour's; and where he is apprehensive of the claim being advanced by a partner, he, may, in the first instance, agree with the purchaser for some exorbitant nominal price, and afterwards commute that price for something of an inferior value; when, if a claimant by pre-emption appear, he must pay the price first stipulated, without reference to the subsequent commutation.
Chapter V. OF GIFTS
1. A gift is defined to be the conferring of property without a consideration.
2. Acceptance and seizin, on the part of the donee, are as necessary as relinquishment on the part of the donor.
3. A gift cannot be made to depend on a contingency, nor can it be referred to take effect at any future definite period.
4. It is necessary that a gift should be accompanied by delivery of possession, and that seizin should take effect immediately, or, if at a subsequent period, by desire of the donor.
5. A gift cannot be made of any thing to be produced in futuro; although the means of its production may be in the possession of the donee. The subject of the gift must be actually in existence at the time of the donation.
6. The gift of property which is undivided, and mixed with other property, admitting at the same time of division or separation, is null and void, unless it be defined previous to delivery; for delivery of the gift cannot in that case be made without including something which forms no part of the gift.
7. In the case of a gift made to two or more donees, the interest of each donee must be denned either at the time of making the gift, or on delivery.
8. A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it.
9. The cases of a house given to a husband by a wife, and of property given by a father to his minor child, form exceptions to the above rule.
10. Formal delivery and seizin are not necessary in the case of a gift to a trustee, having the custody of the article given, nor in the case of a gift to a minor. The seizin of the guardian in the latter case is sufficient.
11. A gift on a deathbed is viewed in the light of a legacy, and cannot take effect for more than a third of the property; consequently no person can make a gift of any part of his property on his deathbed to one of his heirs, it not being lawful for one heir to take a legacy without the consent of the rest.
12. A donor is at liberty to resume his gift, except in the following instances:
13. A gift cannot be resumed where the donee is a relation; nor where anything has been received in return; nor where it has received any accession; nor where it has come into possession of a second donee, or into that of the I heirs of the first.
14. Besides the ordinary species of gift, the law enumerates two contracts under the head of gifts, which however more nearly resemble exchange or sale. They are technically termed Hiba bil Iwaz, mutual gift, or gift for a consideration, and Hiba ba shart ul Iwaz, gift on stipulation, or on promise of a consideration.
15. Hiba bil Iwaz is said to resemble a sale in all its properties; the same conditions attach to it, and the mutual seizin of the donees is not, in all cases, necessary.
16. Hiba ba shart ul Iwaz, on the other hand, is said to resemble a sale in the first stage only; that is, before the consideration for which the gift is made has been received, and the seizin of the donor and donee is therefore a requisite condition.
Chapter VI. OF WILLS
1. There is no preference shown to a written over a nuncupative will, and they are entitled to equal weight, whether the property which is the subject of the will be real or personal.
2. Legacies cannot be made to a larger amount than one-third of the testator's estate without the consent of the heirs.
3. A legacy cannot be left to one of the heirs without the consent of the rest.
4. There is this difference between the property which is the subject of inheritance and that which is the subject of legacy. The former becomes the property of the heir by the mere operation of law; the other does not become the property of the legatee until his consent shall have been obtained either expressly or impliedly.
5. The payment of legacies to a legal amount precedes the satisfaction of claims of inheritance.
6. All the debts due by the testator must be liquidated before the legacies can be claimed.
7. An acknowledgment of debt in favour of an heir on a deathbed resembles a legacy; inasmuch as it does not avail for more than a third of the estate.
8. It is not necessary that the subject of the lega.cy should exist at the time of the execution of the will. It is sufficient for its validity that it should be in existence at the time of the death of the testator.
9. The general validity of a will is not affected by its containing illegal provisions, but it will be carried into execution as far as it may be consistent with law.
10. A person not being an heir at the time of the execution of the will, but becoming one previous to the death of the testator, cannot take the legacy left to him by such will; but a person being an heir at the time of the execution, and becoming excluded previously to the testator's death, can take the legacy left to him by such will.
11. If a man bequeath property to one person, and subsequently make a bequest of the same property to another individual, the first bequest is annulled; so also if he sell or give the legacy to any other individual; even though it may have reverted to his possession before his death, as these acts amount to a retractation of the legacy.
12. Where a testator bequeaths more than he legally can to several legatees, and the heirs refuse to confirm his disposition, a proportionate abatement must be made in all the legacies.
13. "Where a legacy is left to an individual, and subsequently a larger legacy to the same individual, the larger legacy will take effect; but where the larger legacy was prior to the smaller one, the latter only will take effect.
14. A legacy being left to two persons indiscriminately* if one of them die before the legacy is payable, the whole will go to the survivor; but if half was left to each of them, the survivor will get only half, and the remaining moiety will devolve on the heirs; so also in the case of an heir and stranger being left joint legatees.
15. Where there is no executor appointed, the father or the grandfather may act as executor, or in their default their executors.
16. A Mohammadan should not appoint a person of a different persuasion to be his executor, and such appoint- ment is liable to be annulled by the ruling power.
17. Executors having once accepted cannot subsequently decline the trust.
18. Where there are two executors, it is not competent to one of them to act singly, except in cases of necessity, and where benefit to the estate must certainly accrue.
Chapter VII. OF MARRIAGE, DOWER, DIVORCE, AND PARENTAGE
1. Marriage is defined to be a contract founded on the intention of legalizing generation.
2. Proposal and consent are essential to a contract of marriage.
3. The conditions are discretion, puberty, and freedom of the contracting parties. In the absence of the first condition, the contract is void db initio; for a marriage cannot be contracted by an infant without discretion, nor by a lunatic. In the absence of the two latter conditions the contract is voidable; for the validity of marriages contracted by discreet minors, or slaves, is suspensive on the consent of their guardians or masters. It is also necessary that there should be no legal incapacity on the part of the woman; that each party should know the agreement of the other; that there should be witnesses to the contract, and that the proposal and acceptance should be made at the same time and place.
4. There are only four requisites to the competency of witnesses to a marriage contract; namely, freedom, discretion, puberty, and profession of the Musalman faith.
5. Objections as to character and relation do not apply to witnesses in a contract of marriage as they do in other contracts.
6. A proposal may be made by means of agency, or by letter; provided there are witnesses to the receipt of the message or letter, and to the consent on the part of the person to whom it was addressed.
7. The effect of a contract of marriage is to legalize the mutual enjoyment of the parties; to place the wife under the dominion of the husband; to confer on her the right of dower, maintenance, and habitation; to create between the parties, prohibited degrees of relation and reciprocal right of inheritance; to enforce equality of behaviour towards all his wives on the part of the husband, and obedience on the part of the wife, and to invest the husband with a power of correction in cases of disobedience.
8. A freeman may have four wives, but a slave can have only two.
9. A man may not marry his mother, nor his grand-mother, nor his mother-in-law, nor his step-mother, nor his step- grandmother, nor his daughter, nor his grand-daughter, nor his daughter-in-law, nor his grand-daughter-in-law, nor his step-daughter, nor his sister, nor his foster-sister, nor his niece, nor his aunt, nor his nurse.
10. Nor is it lawful for a man to be married at the same time to any two women who stand in such a degree of relation to each other, as that, if one of them had been a male, they could not have intermarried.
11. Marriage cannot be contracted with a person who is a slave of the party; but the union of a freeman with a slave, not being his property, with the consent of the master of such slave, is admissible, provided he be not already married to a freewoman.
12. Christians, Jews, and persons of other religions, believing in one God, may be espoused by Mohammadans.
13. Marriage will be presumed, in a case of proved continual cohabitation, without the testimony of witnesses; but the presence of witnesses is nevertheless requisite at all nuptials.
14. A woman having attained the age of puberty, may contract herself in marriage with whomsoever she pleases; and her guardian has no right to interfere if the match be equal.
15. If the match be unequal, the guardians have a right to interfere with a view to set it aside.
16. A female not having attained the age of puberty, cannot lawfully contract herself in marriage without the consent of her guardians, and the validity of the contract entirely depends upon such consent.
17. But in both the preceding cases the guardians should, interfere before the birth of issue.
18. A contract of marriage entered into by a father or grandfather, on behalf of an infant, is valid and bind- ing, and the infant has not the option of annulling it oa attaining maturity; but if entered into by any other guardian, the infant so contracted may dissolve the marriage on coming of age, provided that such delay does not take place as may be construed into acqui- escence.
19. Where there is no paternal guardian, the maternal kindred may dispose of an infant in marriage; and in default of maternal guardians the government may supply their place.
20. A necessary concomitant of a contract of marriage is dower, the maximum of which is not fixed, but the minimum is ten dirms, and it becomes due on the consummation of the marriage (though it is usual to stipulate for delay as to the payment of a part) or on the death of either party or on divorce.
21. Where no amount of dower has been specified, the woman is entitled to receive a sum equal to the average rate of dower granted to the females of her father's family.
22. Where it may not have been expressed whether the payment of the dower is to be prompt or deferred, it must be held that the whole is due on demand.
23. It is a rule that whatsoever is prohibited by reason of consanguinity is prohibited by reason of fosterage; but as far as marriage is concerned, there are one or two exceptions to this rule: for instance, a man may marry his sister's foster-mother, or his foster-sister's mother, or his foster-son's sister, or his foster-brother's sister.
24. A husband may divorce his wife without any misbehaviour on her part, or without assigning any cause; but before the divorce becomes irreversible, according to the more approved doctrine, it must be repeated three times, and between each time the period of one month must have intervened, and in the interval he may take her back either in an express or implied manner.
25. A husband cannot again cohabit with his wife who has been three times irreversibly divorced, until after she shall have been married to some other individual and separated from him either by death or divorce; but this is not necessary to a reunion, if she have been separated by only one or two divorces.
26. If a husband divorce his wife on his death-bed, she is nevertheless entitled to inherit, if he die before the expiration of the term (four months and ten days) of probation, which she is bound to undergo before contracting a second marriage.
27. A vow of abstinence made by a husband, and maintained inviolate for a period of four months, amounts to an irreversible divorce.
28. A wife is at liberty, with her husband's consent, to purchase from him her freedom from the bonds of marriage.
29. Another mode of separation is by the husband's making oath, accompanied by an imprecation as to his wife's fidelity, and if he in the same manner deny the parentage of the child of which she is then pregnant, it will be bastardized.
30. Established impotency is also a ground for admitting a claim to separation on the part of the wife.
31. A child born six months after marriage is considered to all intents and purposes the offspring of the husband; so also a child born within two years after the death of her husband or after divorce.
32. The first born child of a man's female slave is considered his offspring, provided he claim the parentage, but not otherwise: but if after his having claimed the parentage of one, the same woman bear another child to him, the parentage of that other will be established without any claim on his part.
33. If a man acknowledge another to be his son, and there be nothing which obviously renders it impossible that such relation should exist between them, the parentage will be established.
Chapter VIII. OF GUARDIANS AND MINORITY
1. All persons, whether male or female, are considered minors until after the expiration of the sixteenth year, unless symptoms of puberty appear at an earlier period.
2. There is a subdivision of the state of minority, though not so minute as in the Civil Law, the term minor being used indiscriminately to signify all persons under the age of puberty; but the term Sdbi is applied to persons in a state of infancy, and the term Murahik to those who have nearly attained puberty.
3. Minors have not different privileges at different stages of their minority, as in the English law.
4. Guardians are either natural or testamentary.
5. They are also near and remote. Of the former description are fathers and paternal grandfathers and their executors -and the executors of such executors. Of the latter description are the more distant paternal kindred, and their guardianship extends only to matters connected with the education and marriage of their wards.
6. The former description of guardians answers to the term of curator in the Civil Law, and of manager in the Bengal Code of Regulations; having power over the property of a minor for purposes beneficial to him; and in their default this power does not vest in the remote guardians, but devolves on the ruling authority.
7. Maternal relations are the lowest species of guardians, as their right of guardianship for the purposes of education and marriage takes effect only where there may be no paternal kindred nor mother.
8. Mothers have the right (and widows durante viduitate) to the custody of their sons until they attain the age of seven years, and of their daughters until they attain the age of puberty.
9. The mother's right is forfeited by marrying a stranger, but reverts on her again becoming a widow.
10. The paternal relations succeed to the right of guardianship, for the purposes of education and marriage, in proportion to the proximity of their claims to inherit the estate of the minor.
11. Necessary debts contracted by any guardian for the support or education of his ward must be discharged by him on his coming of age.
12. A minor is not competent sui juris to contract marriage, to pass a divorce, to manumit a slave, to make a loan, or contract a debt, or to engage in any other transaction of a nature not manifestly for his benefit, without the consent of his guardian.
13. But he may receive a gift, or do any other act which is manifestly for his benefit.
14. A guardian is not at liberty to sell the immoveable property of his ward, except under seven circumstances, viz. 1st, where he can obtain double its value; 2ndly, where the minor has no other property, and the sale of it is absolutely necessary to his maintenance; 3rdly, where the late incumbent died in debt which cannot be liquidated but by the sale of such property; 4thly, where there are some general provisions in the will which cannot be carried into effect without such sale; 5thly, where the produce of the property is not sufficient to defray the expences of keeping it; 6thly, where the property may be in danger of being destroyed; 7thly, where it has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
15. Every contract entered into by a near guardian on behalf and for the benefit of the minor, and every contract entered into by a minor with the advice and consent of his near guardian, as far as regards his personal property, is valid and binding upon him; provided there be no circumvention or fraud on the face of it.
16. Minors are civilly responsible for any intentional damage or injury done by them to the property or interests of others, though they are not liable in criminal matters to retaliation or to the ultimum supplicium, but they are liable to discretionary chastisement and correction.
Chapter IX. OF SLAVERY
1. There are only two descriptions of persons recognized as slaves under the Mohammadan Law. First, infidels made captive during war; and secondly, their descendants. These persons are subjects of inheritance, and of all kinds of contracts, in the same manner as other property.
2. The general state of bondage is subdivided into two classes, and slavery may be either entire or qualified, according to circumstances.
3. Qualified slaves are of three descriptions: the Mukdtib; the Mudabbir, and the Um-i-walad.
4. A Mukdtib slave is he between whom and his master there may have been an agreement for his ransom, on the condition of his paying a certain sum of money, either immediately, or at some future time, or by instalments.
5. If he fulfil the condition he will become free; otherwise he will revert to his former unqualified state of bondage. In the mean time his master parts with the possession of, but not with the property in him. He is not, however, in the interval a fit subject of sale, gift, pledge or hire.
6. A Mudablir slave is he to whom his master has promised post-obit emancipation; such promise however may be made absolutely, or with limitation; in other words the freedom of the slave may be made to depend generally on the death of his master, whenever that event may happen: or it may be made conditionally, to depend on the occurrence of the event within a specified period.
7. This description of slave is not a fit subject of sale or gift, but labour may be exacted from him and he may be let out to hire, and in the case of a female she may be given in marriage. Where the promise was made absolutely, the slave becomes free on the death of the master, whenever that event may happen; and, where made conditionally, if his death occurred within the period specified.
8. The general law of legacies and debts is applicable to this description of slaves, they being considered as much the right of heirs as any other description of property: consequently they can only be emancipated to the extent of one-third of the value of their persons, where the master leaves no other property; and they must perform emancipatory labour for the benefit of the heirs to the extent of the other two-thirds; and where the master dies insolvent, they do not become free until, for the benefit of the deceased's creditors, they have earned by their labour property to the full amount of their value.
9. An TTm-i-walad is a female slave who has borne a child or children to her master.
10. The law is the same regarding this description of slave as regarding the Muddbbir, with this difference in her favour, that she is emancipated unconditionally on the death of her master; whether he may or may not have left other assets, or whether he may have died in a state of insolvency or otherwise. But it should he observed that the parentage of such slave is not established in her master unless he acknowledge the first born.
11. Slaves labour under almost every species of incapacity. They cannot marry without the consent of their masters. Their evidence is not admissible, nor their acknowledgments (unless they are licensed) in matters relative to property. They are not generally eligible to fill any civil office in the state, nor can they be executors, sureties or guardians (unless to the minor children of their masters by special appointment) nor are they competent to make a gift or sale, nor to inherit or bequeath property.
12. But, as some counterpoise to these disqualifications, they are exempted from many obligations of freedom. They are not liable to be sued except in the presence of their masters; they are not subject to the payment of taxes, and they cannot be imprisoned for debt. In criminal matters the indulgences extended to them are more numerous.
13. Any description of slave however may be licensed, either for a particular purpose or generally for commercial transactions; in which case they are allowed to act to the extent of their license.
14. Masters may compel their slaves to marry. Unqualified slaves may be sold to make good their wives' dower and maintenance, and qualified slaves may be com- pelled to labour for the same purposes. A man cannot marry a female slave so long as he has a free wife; nor can he under any circumstances marry his own slave girl, nor can a slave marry his mistress.
15. Persons who stand reciprocally related within the prohibited degrees cannot be the slaves of each other.
16. Where issue has been begotten between the male slave of one person and the female slave of another, the maxim of partus sequitur ventrem applies, and the former has no legal claim to the children so begotten.
17. It is a question how far the sale of a man's own person is lawful when reduced to extreme necessity. It is declared justifiable in the Mohit-u-sarakhsi, a work of unexceptionable authority. But while deference is paid to that authority, by admitting the validity of the sale, it is nevertheless universally contended that it should be cancelled on the application of the slave, and that he should be compelled by his labour to refund the value of what he had received from his purchaser.
18. It is admitted however by all authorities that a person may hire himself for any time, even though it amount to servitude for life; but minors so hired may annul the contract on attaining majority.
Chapter X. OF ENDOWMENTS
1. An endowment signifies the appropriation of property to the service of God; when the right of the appropriator becomes divested, and the profits of the property so appropriated are devoted to the benefit of mankind.
2. An endowment is not a fit subject of sale, gift, or inheritance; and if the appropriation is made in extremis, it takes effect only to the extent of a third of the property of the appropriator. Undefined property is a fit subject of endowment.
3. Endowed property may be ' sold by j udicial authority, when the sale may be absolutely necessary to defray the expense of repairing its edifices or other indispensible purposes, and where the object cannot be attained by farming or other temporary expedient.
4. In case of the grant of an endowment to an individual with reversion to the poor, it is not necessary that the grantees specified shall be in existence at the time. For instance, if the grant be made in the name of the children of A with reversion to the poor, and A should prove to have no children, the grant would nevertheless be valid, and the profits of the endowment will be distributed among the poor.
5. The ruling power cannot remove the superintendent of an endowment appointed by the appropriator, unless on proof of misconduct; nor can the appropriator himself remove such person, unless the liberty of doing so may have been specially reserved to him at the time of his making the appropriation.
6. Where the appropriator of an endowment may not have made any express provision as to who shall succeed to the office of superintendent on the death of the person nominated by himself, and he may not have left an executor, such superintendent may, on his deathbed, ap- point his own successor, subject to the confirmation of the ruling power.
7. The specific property endowed cannot be exchanged for other property, unless a stipulation to this effect may have been made by the appropriator, or unless circumstances should render it impracticable to retain possession of the particular property, or unless manifest advantage be derivable from the exchange; nor should endowed lands be farmed out on terms inferior to their value, nor for a longer period than three years, except when circumstances render such measure absolutely necessary to the preservation of the endowment.
8. The injunctions of the appropriator should be observed except in the following cases: If he stipulate that the superintendent shall not be removed by the ruling authorities, such person is nevertheless removeable by them on proof of misconduct. If he stipulate that the appropriated lands shall not be let out to farm for a longer period than one year, and it be difficult to obtain a tenant for so short a period or, by making a longer lease, it be better calculated to promote the interests of the establish- ment, the ruling authorities are at liberty to act without the consent of the superintendent. If he stipulate that the excess of the profits be distributed among persons who beg for it in the mosque, it may nevertheless be distributed in other places and among the necessitous, though not beggars. If he stipulate that daily rations of food be served out to the necessitous, the allowance may neverthe- less be made in money. The ruling authorities have power to increase the salaries of the omcers attached to the en- dowment, when they appear deserving of it, and the endowed property may be exchanged, when it may seem advantageous, by order of such authorities; even though the appropriate may have expressly stipulated against an exchange.
9. "Where an appropriator appoints two persons joint superintendents, it is not competent to either of them to act separately; but where he himself retains a moiety of the superintendence, associating another individual, he (the appropriator) is at liberty to act singly and of his own authority in his self-created capacity of joint superintendent.
10. Where an appropriation has been made by the ruling power, from the funds of the public treasury, for public purposes, without any specific nomination, the superintendence should be entrusted to some person most deafer ving in point of learning; but in private appropria- tions, with the exceptions above mentioned, the injunctions of the founder should be fulfilled.
Chapter XI. OF DEBTS AND SECURITIES
1. Heirs are answerable for the debts of their ancestors, as far as there are assets.
2. The payment of debts acknowledged on a deathbed must be postponed until after the liquidation of those contracted in health, unless it be notorious that the former were lona; fide contracted; and a deathbed acknowledgement of a debt in favour of an heir is entirely null and void, unless the other heirs admit that it is due.
3. If two persons jointly contract a debt and one of them die, the survivor will be held responsible for a moiety only of the debt; unless there was an express stipulation that each should be liable for the whole amount: for the law presumes that each were equal participators in the profits of the loan, and that one should not be responsible for the share of advantage acquired by the other.
4. So also where two persons are joint sureties for the payment of a debt, if one of them die, the survivor will not be considered as surety for the whole, and that the one should be surety for the other,
5. It is different where two partners are engaged in traffic, contributing the same amount in capital, and beiijg equal in all respects, in which case the one partner is responsible for all acts done and for all debts contracted by the other. But this is not the case with regard to other partnerships, in which case a creditor of the concern cannot claim the whole debt from any one of the partners severally, but must either come upon the whole collectively, or if he prefer his claim against any one individual partner, it must be only to the extent of his share.
6. Necessary debts contracted by a guardian on account of his ward must be discharged by the latter on his coming of age.
7. A general inhibition cannot be laid on a debtor to exclude him entirely from the management of his own affairs; but he may be restrained from entering into such contracts as are manifestly injurious to his creditor.
8. If a debtor, on being sued, acknowledge the debt, he must not be immediately imprisoned, but if he deny, and it be established by evidence, he should be committed forthwith to jail.
9. If, after judgment, there should be any procrastination on the part of a debtor who has been suffered to go at large, and he may have received a valuable consideration for the debt, or if it be a debt on beneficial contract, he should be committed to jail notwithstanding he plead poverty.
10. But if the debt had been contracted gratuitously and without any valuable consideration having been received (as in the case of a debt contracted by a surety on account of his principal), the debtor should not be imprisoned unless the creditor can establish his solvency.
11. It is left discretionary with the judicial authorities to determine the period of imprisonment in cases of apparent insolvency.
12. But the liberation of a debtor does not exempt him from all future pursuit by his creditors. They may cause his arrest at a subsequent period, on proof of his ability to discharge the debt.
13. In the attachment and sale of property belonging to a debtor, great caution is prescribed. In the first place, his money should be applied to the liquidation of his debt; next, his personal effects, and last of all his houses and lands.
14. There is no distinction between mortgages of lands and pledges of goods.
15. Hypothecation is unknown to the Mohammadan Law, and seizin is a requisite condition of mortgage.
16. The creditor is not at liberty to alienate and sell the mortgage or pledge at any time, unless there was an express agreement to that effect between him and the debtor, as the property mortgaged is presumed to be equivalent to the debt, and as the debt cannot receive any accession, interest being prohibited.
17. It is a general rule that the pawnee is chargeable with the expence of providing for the custody, and the pawner with the expence of providing for the support of the thing pledged; for instance, in the case of a pledge of a horse, it is necessary that the pawner should provide his food, and the pawnee his stable.
18. Where property may have been pawned or mortgaged in satisfaction of a debt, it is not lawful for the pawnee or mortgagee to use it without the consent of the pawner or mortgager, and if he do so, he is responsible for the whole value.
19. Where such property, being equivalent to the debt, may have been destroyed otherwise than by the act of the pawnee or mortgagee, the debt is extinguished; where it exceeds the debt, the pawnee or mortgagee is not responsible for the excess, but where it falls short of the debt, the deficiency must be made up by the pawner or mortgager; but if the property were wilfully destroyed by the act of the pawnee or mortgagee, he will be responsible for any excess of its value beyond the amount of the debt.
20. If a person die, leaving many creditors, and he may have pawned or mortgaged some property to one of them, such creditor is at liberty to satisfy his own debt out of the property of the deceased debtor, which is in his own possession, to the exclusion of all the other creditors.
Chapter XII. Of Claims and Judicial Matters
1. There is no rule of limitation to bar a claim of right according to the Mohammadan Law.
2. A claim founded on a verbal engagement is of equal weight with a claim founded on a written engagement.
3. Informality in a deed does not vitiate a contract founded thereon, provided the intention of the contracting parties can otherwise be clearly ascertained.
4. The general rule with respect to all claims is that priority in point of time confers superiority of right,
5. Where the priority of either cannot be ascertained, a claim founded on purchase is entitled to the preference over a claim founded on gift.
6. Contracts are not dissolved generally by the death of one of the contracting parties, but they devolve on the representatives as far as there are assets; unless the subject of the contract be of a personal nature, such for instance, as in the case of a lease, if either the landlord or the farmer die, the contract ceases on the occurrence of that event.
7. So also in the case of partnership and joint concerns of any description, where the surviving partners are not bound to continue in business with the heirs of the deceased partner, and vice versa; and the obligation is extinguished, as well by civil as by natural death.
8. Oaths are not administered to witnesses.
9. In civil claims the evidence of two men, or one man and two women is generally requisite.
10. Slaves, minors and persons convicted of slander are not competent witnesses.
11. The evidence of a father or grandfather, in favour of his son or his grandson, and vice versa; of a husband in favour of his wife, and vice versa, and of a servant in favour of his master, and vice versa, is not admissible.
12. Nor is the evidence of a partner admissible in matters affecting the joint concern.
13. In matters which fall peculiarly within the province of women, female evidence is admissible, uncorroborated by male testimony.
14. Hearsay evidence is admissible to establish birth, death, marriage, cohabitation, and the appointment of a Kazi; as the eye-witnesses to such transactions are frequently not forthcoming.
15. No respect is paid to any superiority in the number of witnesses above the prescribed number adduced in support of a claim.
16. The evidence of witnesses which tends to establish the plaintiff's claim to any thing not contained in his own statement, must be rejected; for instance, if any of his witnesses depose to a larger sum being due to him than that claimed by himself.
17. The evidence of witnesses which tends to establish the plaintiff's claim on a ground different from that alleged by himself, must be rejected; for instance, if the plaintiff were to claim by purchase and his witnesses were to depose to his claim being founded on gift.
18. Where a debt is claimed, and some of the witnesses depose to the debt of the whole sum claimed and others to a part of it only, the plaintiff is entitled to such part only of the sum claimed.
19. Where a defendant pleads the general issue, the onus probandi rests on the plaintiff.
20. Where a plea contains defensive matter, such as payment or satisfaction, the onus probandi rests on the defendant; the rule being the same as in the Civil Law, that in every issue the affirmative is to be proved.
21. A defendant may in some cases plead both the general issue and a special plea, where they are not inconsistent; and the onus probandi in such case rests on the plaintiff, where the special plea is not necessary to the defence; for instance, a man sues another for half an estate, alleging that he was born in wedlock of the same father and mother as the defendant. Here the defendant may deny the allegation generally and at the same time plead that the defendant was born of a different family.
22. A claim is not admissible which may be repugnant to a former claim, both of which cannot stand; for instance, a person in a former suit having denied that a certain individual was his brother, cannot subsequently claim the inheritance of that person on the plea of such relation.
23. But if the claim be at variance with a former one, and they can both consistently stand, it is admissible; for instance, a claim having been advanced to property in virtue of purchase, the same property may be claimed by the same person in virtue of inheritance, but if the claim of inheritance had been prior, a subsequent claim of purchase is not admissible; as it is manifest that they cannot both consistently stand.
24. If a man adduce a claim and have no evidence to support it, the general rule is, that the defendant must be put to his oath, and if he decline swearing, judgment should be given for the plaintiff; but if he deny on oath, he is absolved from the claim.
25. Where both parties have evidence, that of the plaintiff is generally entitled to preference. Thus, for instance, where the creditor and debtor are at issue as to the amount of a debt, and both parties have evidence, that of the former is entitled to preference; but where neither party has evidence, the assertion on oath of the latter is to be credited.
26. It is also a general principle that where there is evidence adduced on both sides, ceteris paribus, the preference should be given to the witnesses of the party whose claim is greater, or who has the greater interest in the subject matter. Thus, for instance, in an action arising out of a contract of sale, where there is a disagreement about the price between the seller and purchaser, both parties having evidence, the witnesses who depose to the larger sum being due, that is of the plaintiff, are entitled to preference.
27. And where there is a disagreement, both as to the price and goods, both parties having witnesses, the evidence adduced by the seller is entitled to preference as far as it affects the amount of price, and that of the purchaser as far as it affects the quality and quantity of the goods.
28. If neither party have evidence, they should both be put to their oaths, and if both consent to swear, the contract must be dissolved; but if one decline and the other swear the decree should be passed in favour of the swearer.
29. But if the disagreement exist with respect to the conditions only of a sale, such as the period of payment, etc., and both parties consent to swear, the assertion on oath of the party against whom the claim is made is entitled to preference.
30. Where a husband and wife dispute as to the amount of dower, both parties having evidence, that of the wife must be credited as it proves most; so also in a dispute between a lessor and lessee, the evidence of each party is entitled to preference as far as their individual interests are at stake; the evidence of the lessor being received as to the amount of the rent, and that of the lessee as to the duration of the term.
31. "Where property is claimed and the person in whose possession it is, states that he is merely a depositary or a pawnee of an absent proprietor, and adduces evidence in support of his assertion, the claim must be dismissed; but the claim should be rejected in limine where the claimant admits his title to have been derived from such absentee proprietor.
32. Judgment cannot be passed ex parte, the reason given being, that decisions must be founded either on the defendant's confession, or (notwithstanding his denial) on proof by witnesses; and where he is absent, it cannot be said whether he would have denied or admitted the claim.
33. When cases are referred to arbitration, it is requisite that the decision of the arbitrators should be unanimous.
- ↑ Daughters without sons are legal sharers, and so are sisters without brothers, but with them they become merely residuaries. Grandfathers and fathers with sons, son's sons, etc., are legal sharers, but with daughters only they are residuaries, as well as legal sharers.
- ↑ It is the orthodox opinion that the grandfather excludes brethren of the whole blood and those by the same father only. Among the Shias, who adhere to the doctrine of the two disciples, the contrary opinion is maintained. The terms "grandfather" and "grandmother" are intended to include all ancestors, in whatever degree of ascent, between whom and the deceased no female intervenes.
- ↑ Of the persons here enumerated the following males are legal sharers, namely, the father, the grandfather or other lineal male ancestor, the husband and the brother of the half blood by the same mother only, and the following females, namely, the daughter, the son's daughter, the widow, the mother, the grandmother, the sister by the same father and mother, the sister by the same father only and the sister by the same mother only. The shares of these persons vary according to circumstances, and in particular instances some of them (as has been shown) are liable to exclusion altogether. The rest of the persons enumerated are residuaries only, and have no specific shares.
- ↑ The opinion of Abti Tusaf is that where the claimants are on the same footing with respect to the persons through whom they claim, regard should be had to the sexes of the claimants, and not to the sexes of their ancestors. But this, although the most simple, is not the most approved rule. The rule may be thus exemplified. The claimants being a maternal grandfather and the mother of a maternal grandfather, the former being more proximate excludes the latter; but suppose them to be the father of a maternal grandfather and the mother of a maternal grandfather: here the claimants are equal in point of proximity; the side of their relation is the same and they are equal with respect to the sex of the person through whom they claim, and in this case the only method of making the distribution is by having regard to the sexes of the claimants and by giving a double share to the male.
- ↑ In considering the doctrine of succession of distant kindred attention must be paid to the following points. First, their relative distance in degree of relation from the deceased, whether a greater or lesser number of degrees removed. Secondly, it must be ascertained whether any of the claimants are the children of heirs. If so, preference must be shown to such children. Thirdly, their strength of relation, whether they are of the half or whole blood. Fourthly, their sides of relation, whether connected by the father's or mother's side; and Fifthly, the sexes of the persons through whom they claim, whether male or female. "With respect to this latter point, however, a difference of opinion exists; it being maintained by some authorities that cateris paribus no regard should be had to the mere sex of the person through whom the claim is made, but that the adjustment should be made according to the sex of the claimants themselves. But the contrary is the most approved doctrine. It should be recollected too, that whenever the sides of relation differ, those connected through the father are entitled to twice as much as those connected through the mother, whatever may be the sexes of the claimants.
- ↑ The following case may be cited as an example of this rule. A, B and C are grandfather, father, and son. A and B perish at sea. without any particulars of their fate heing known. In this case, if A have other sons, C will not inherit any of his property, because the law recognized no right by representation, and sons exclude grandsons. Mr. Christian in note to Blackstone's Commentaries (vol. ii., p. 516), notices a curious question that was agitated some time ago, where it was contended that when a parent and child perish together, and the priority of their deaths is unknown, it was a rule of the civil law to presume that the child survives the parent. He proceeds, however, to say, " But I should be inclined to think that our courts would require something more than presumptive evidence to support a claim of this nature." Some curious cases de commorientibus may be seen in Causes Celebres, vol. iii., 412 et seq., in one of which where a father and son were slain together in battle and on the same day the daughter became a professed nun, it was determined that her civil death was prior to the death of her father and brother, and that the brother having arrived at the age of puberty, should be presumed to have survived his father.
- ↑ In a note to his translation of the Hedaya, Mr. Hamilton observes, that "there is no single word in our language fully expressive of this terra. The shortest definition of it is, ' the relation between the master (or patron) and his Freedman,' but even this does not express the whole meaning." Had he proceeded to state " and the relation between two persons who had made a reciprocal testamentary contract," the definition might have been more complete.
- ↑ There seems to be some similarity between the order of succession here laid down, and that prescribed in the English Law for taking out letters of administration: "In the first place the children, or on failure of the children, the parents of the deceased, are entitled to the administration; both which indeed are in the first degree; but with us the children are allowed the preference. Then follow brothers, grandfathers, uncles or nephews (and the females of each class respectively), and lastly cousins. The half blood is admitted to the administration as well as the whole, for they are of the indred of the Intestate." Blackstone's Com., vol. ii., p. 504.
- ↑ The relation of paternal and maternal uncle may exist in the same person in the following manner: A having a son C by another wife, marries B having a daughter D by another husband. Then C and D intermarry and have issue, a son E, and A and B have a son F. Thus F is both the paternal and maternal uncle of E. So likewise if a person have a half brother by the same father, and a half sister by the same mother, who intermarry, he will tiecessarily be the paternal and maternal of their issue.
- ↑ This species of contract is reprobated by the orthodox sect, and they are both considered wholly illegal. See Hamilton's Hedaya, yol. i., p. 71 and 72.
- ↑ In the foregoing summary I am not aware that I have omitted any point of material importance. The legal shares allotted to the several heirs are of course the same as those prescribed in the Stini Code, both having the precepts of the Koran as their guide. The rules of distribution and of ascertaining the relative shares of the different claimants are also (mutatis mutandis) the same. It is not worth while to notice in this compilation the doctrines of the Imamiya sect on the law of contracts, or their tenets in miscellaneous matters. A Digest of their laws, relative to those subjects, was some time ago prepared and a considerable part of it translated by an eminent Orientalist (Colonel John Baillie) by whom, however, it was left unfinished; probably from an opinion that the utility of the undertaking might not be commensurate to the time and labour employed upon it,
- ↑ Much difference of opinion prevails as to this point. It seems equitable that there should he some limitation of time to bar a claim of this nature; otherwise a purchaser may be kept in a continual state of suspense. Ziffer and Mohammad are of opinion (and such also is the doctrine according to one tradition of Abti Yusaf), that if the claimant causelessly neglect to advance his claim for a period exceeding one month, such delay shall amount to a defeasance of his right; but according to Abu Hanifa, and another tradition of Abu Yusaf, there is no limitation as to time. This doctrine is maintained in the Fatawa Aulamgiri, in the Mohitu Saruakhsi, and in the Hedaya; and it seems to be the most authentic and generally prevalent opinion. But the compiler of the Fatawa Aulamgiri admits that decisions are given both ways.
- ↑ The right of a wife to maintenance is expressly recognized: so much so, that if the husband be absent and have not made any provision for his wife, the Law will cause it to be made out of his property; and in case of divorce, the wife is entitled to maintenance during the period of her probation.
- ↑ The value of the dirm is very uncertain. Ten dirms according to one account make about six shillings and eight pence sterling. See note to Hamilton's translation of the Hedaya, p. 122, vol. i.
- ↑ There is recognised a species of reversible divorce, which is effected by the husband comparing his wife to any member of his mother, or some other relation prohibited to him, which must be expiated by emancipating a slave, by alms or by fasting. This divorce is technically termed Zihar. Hedaya, book iv., chap. ix.
- ↑ "The great distinction was therefore into majors and minors; but minors were again subdivided into Puberes and Impuberes; and Impuberes again underwent a subdivision into Infantes and Impuberes" Summary of Taylor's Eoman Law, p. 124. In the Mohammadan Law a person after attaining majority is termed Shab till the age of thirty-four years; he is termed Eohal until the age of fifty-one, and Sheikh for the remainder of his life.
- ↑ The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion he actually proved, may make his testament of his personal estate; at seventeen may be an executor, and at twenty-one is at his own disposal, and may alienate his lands, goods, and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to a dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executress; and at twenty-one may dispose of herself and her lands. See Blackstone's Com., vol. i., p. 463.
- ↑ In the Bahr-u-rayik an opinion is cited from the Mabsut, to the effect that if a person causelessly neglect to advance his claim for a period of hirty-three years, it shall not he cognizable in a court of justice; but this opinion is adverse to the received legal doctrine.
- ↑ At first sight there might appear to be a distinction without a difference in this case; but the reason of the rule is that an heir might consistently make a purchase of property which had not devolved, but of which he was in expectancy. But it is contrary to all probability that he should have purchased, after the demise of the ancestor, property to which he had represented himself actually entitled in virtue of inheritance.
- ↑ But there is an exception to this general rule. If the proper dower of the wife, that is to say the average rate of dower paid to her paternal female relations, exceed the amount claimed by her, the evidence adduced by the husband is entitled to preference, because that goes to prove some remission on her part. See Hedaya, vol. i., p. 154.