Principles of Mahomedan law

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PRINCIPLES

OF

MAHOMEDAN LAW

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BY

DINSHAH FAftDUI^JI MULLA, M.A., LL.B.f

ATTORyKY-AT-LAW. HKiH CO" RT, BOSIBAY; PROFEgSOB >F LAW, BOVBR>Tk[Bif T LAW SCHOOL,

BOMBAY; FKLLOW OK BOMBAY iJkIVEBSI^W .' ^SISTAXT EDITOR, POLLOCK'S .

( OMMEXTAUIKS ON THE IXDIAX CWfTRACT AjDT; ATTIIOH OF

" ( OM Ml NTAHIKS OS THK COBE OF CIVIL rUOCKDCBK," % ILIIISDICTIOV OF COURTS IS MATTERS

OK l^ASTE," ET|.

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PREFATORY NOTE.

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I'his work has been mauily deigned for the use 'of students, fts a guide to J:heir study of Mahomedan Law. Heiice, for a speedy and convenient grasp of its principles?, I ]iave cast them in a series of dis- J, tirict propositions, systematically" arranged in .the ^ .order of colisecutive sections, illustrat^ by^ decided cases applicable to each sectk)n. ^ The language of judgments to be found in the recognised reports tas, so far as practicable, been faithfully reproduced in the statement of each proposttion, in order to impart to. it the imprimatur of authoritative law ; and where such sources have failed,! have fallen back upon the trans- lations of the Hedaya and the Fatwa xIlumgiri, with^. . such modifications as were neceissary or proper for the requirements of modern li^w. The illustrative c^ses have'likewise been imported, almost all, from the same Reports througho\it the work except in* the Chapter on Inheritance. There i.s a citation of authority for eviery proposition I have §et out ; alid no important decisions,;^ have been missed, while enactments amend-^' ing or repealing the ancieni rules have been not^d in their approf)riate pL^c^. The rules of succession in intestacy have jheeji felt to be g <'rux to students, if not the* hardestd • part in . the whole raiffge (5f • MAHeMEDAN PERSONAL Law for .them to compre- hend. ' . ' / *

To afford facilities in the sound understanding' of the principles of Sutjcession Law, a large jn umber of

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PREFATORY NOTEf

illustr^-tions have been grouped together, which, it is hope(], .will £fedd to tne^ importance and valae oi the work, as a concise and«^ scientific qnposition of the subjecf. The schen^e of tli^tribution among Sharers and Re.siduaries has been tabulated, and the principle upon which the rules of inheritance ar&^based are ' ' expounded at pp. 58-61 as clearly ?s I have been able

* to db, Jn addition to the principles set out in the Sirajiyyab^ I l^ve ventured to formulate two fresh , prinpiples which have appeared to me1:o furnish a solution of some*^ of the difficulties pointed out^by writers on that subject. *

This work is in the main modelled on the plan of Sir Roland Wilson's excellent Digest^ of Anglo- MuHAMMADAN Law which I consider to be the best adapted for the object I have had in view. I

* havCj, however, on several occasions, ventured to differ from that authority in some cardinal doctrines.

. D. F. M-

23, Church Gate Street, «

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TABLE OF CONTENTS.

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3

Page.

Chapter <i. — Introduction of Mahomedan Law, into British

India •«« ..• ••• ••• ••• ' *■

Chapter II. — Mahomedan sects anil Sul^-Secta ... ... , 12

Chester III. — Sources and Interpretation of Mahomedan

T «

Law Chapter iV, — Of Successiofr'in General ... Ohapier V. — Inheritance — <

A. — General ...

B.^ — Hanafi Law of Inheritance » C. — Shiah Law of Inheritance

Chapter Vl.—Wills ,

Chapter VIC. — Death-b^d Gifts and Acknowledgments ...

Chapter VIII. —Gifts ... '

Chapter IX.— Wakfs

Chaptt*r X.— ^'Pre-emption

Chapter XI.->^Marriage, &c.->- *^

A. — Marriage... ,,i

B. — I)ower ... ... ... ... ,.*

C. — Divorce ...

T). — Parentage* Cfhapter XII. — Gu^dianship Chapter XIII. — Mainvenano of Relatlyes ..

1^5 19

36

42

80 ♦

89

97 • 100 116 132

146

160 ' 170 178 184

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TABLE OF CASES

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A ^

A.v.'b., 152,166^167

^badi Begam v. Inaoi Begam,

139^ 142 »

Abasi V. Dunne, 181 Abdo.c^ Adood v. Mabomed

Makmil, 41 Abdool Futteh v. Zabuonessa, 153 Abdool Kadar v. Bapubbai, 41 Abdool Oah(.b v. Elias Bauoo, 14<5 Abdul Ali, In Re, 153, 161 Abdul Cadur v. Yurner, 6, 94 Abdul Fata Mahomed v. Rasa-

rtaya, 16, 117, 122-125 Abdul Gafur v. Nizam:")din, 117,

121, 123 , Abdul Ganne v.Hussen Miya, l.~

12l^-^23 Abdul Kadir v. Salima, 17, 154,

156 Abdullah v. Amanat-uUali, 139 Abdul Rahim v. Kharag Singh,

133 Abdul Rnzak v. Aga Mahomed

Jaffer, 171, 175 Abdul Serang v.Putee b. ., 43, 66 Abdua Wahid v. Nnrau Bibi, 36,38 Abraham v. Abraham, 4 Abu Sayid v. Bakarali, 116 Advof.ate (tP'"'~-'1 v. Fatima, 127 AgdL Mahomeu «. '^ifer v. Koolso*

Beebee, 15, 88,94, 106, 153 Agha Ali Khao v. Altaf Hasan

Khan, 17, 18, 80 Ahinsa I3ibi v. Abdel Kader, 34 Ahmed Hossei" v. Mussumat

Khodeja, II

140.

;olla,

Aizunnissa v. Kar* -nnissa, 177 T

Akhtaroor\-y'«8a v. ou..ii ' 170

Ali.bi.v. Mussa, 2, 109

,Ali Muhammad v. AzizuUab, 159

Ali Muhammad v. Muhammad, 139,140

Ali Muhamrfiad v, Taj Muham- mad, 140

Amanat-un-Nissa v. Bashir-un- Nissa, 158 •

^Ambashankar v. Sayad Ali, 27 Ameer Ammal v. Saukarai.ara- » yanrxjf", 159 Ameeroonnissa v. Abadoonissa,

108, 110 M

Amina Bibi v. Khatiji Bibi, 111 Amir Dulhin v. B*ij Nath, 21, 27,

29, 31 Amir Hasan v. Rahim Baidish,

139, 142 , '

Amrutlal v. Siiaik Husse^in, 125 Aratul Nissa J. Mir Nurudin, 103 Atwari Pegam v, Nizam-ud-Din

Shah,'40l, 103, 106 Ashabai v. Haji Tyeb, 7 ^ Ashrulf Ali v. Meer Aahad ATi,

173 Ashrufood Dowlah v. Hyder Hos

sein Khan, 172, 175, 177 Assamathem Nessa Bibee v.

Liitchmeeput Singh, 21, 27 Ata-UUah v. AzimUllah, ISU Azim-un-Nissa v. Dale, 7, 111

Baba v. Shivappa, 182

Badal Aurat v. Queen, Empre&s,

152 Badarannissa v. Mafiattala, 147 Baf^tnu V. Bilaiti Khanum 12, 62,

80, 92 Bai Kaiji vrBai Santok, 7 Baqar Ali Kban v. Anjuman Art-

Begam, 17, 117 Bava Sahib v. Mahomed, 211 Bazayet Hossein v. Dooli Chund,

22, 24, 25 Bebee Bachun v. SheikhiHamid,

158 Behiiree Ram v. Shoobhudra, 133 > Blfola Nath v. Maqbul-un-Ni8^a

20, 25, 157 Bhoocha v. Elahi Bux, 180 ' Bhutnath v. Ahmed Uo^^sin, 182 Bikaoi Miya v. Shuk Lai, 123,

124, 126 Bisheii Chaud ;''. Nadir Hoseein,

131 o ,

Brs'^a Kishor v. Kirti Chandja, 1

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TABLE

op CASE^

B — contd.

r

Bukshan v, Maldai, 182 Buesunterara v. Kamaluddin, 8, 23

Chand Khan v.Naimat Khan, 134 Chekkene Kutti v. Ahmed, 111 Chuki Bibi v. Shams-un-Nissa, .159

Dada v. Dabpji, 9 ♦ Dallu Mai v. Hari Das, 28, 30 Daulatram v, Abdul Kajum, 94 Davahva v. Bhimaji, 26?, 27, 29,

tl Deedar Hossein v. Zuhoor-oon-

Nisea, 12 Deo d. Jaun Beebee v. Abdoollah,

119 Deokicandan v. Sri Ram, 143 Deoti Prasad v. Inait-ullah, 121 Dewanutuila v. Kazem Molla, 135 Dhan Bibi v. Lalon Bibi, 177 Din Muhammad, In the maUer

of, 153 Durga* Prasad .V. Mnnsi, 142 Dwarka Das v. Husaiu Bakhsh,

136

Eidan v. Mazhar Husain, 156 Emnabai v. Hajirabai, 111

Fakir Eawot v. Emambaksh, 132 Fateeangji v. Harisangji, 7 Fatima^ibee v. Ahmad Baksh,

97,98 ^atiraa Bibee v. Ariff Ismailjee.

92, 93 Fatmabibi v. Advocate General,

11&, 121, 126 Fatma Bibi v. Sadruddio, 157 Fazl Karim v. Maula Baksh, 130 Fazlur Rnhim V. Mahomed Obe-

dul Azira, 123 ( FJda Ali v. Mczaflfar Ali, 135 Furz^ind v. Janu Bibee, 161 (

G

Ghasiti v. Gbasiti, 10 r

Ghulam Ali'v. Sagir-ul-Niesa, 160

G(Sbind eDay^l v. Inayatuliah,

133, 136 Gooman Sing v.*TripoolSing, 133 Gofdhandas v. Prankor, 1C2 Gurdial v. Teknarayan, 135*

c.

H

Habib-un-nissa v. Barkat Ali, 141 Hadi Slli v. Akbar Ali, 159 Haji Ismail, In re, 7 ( Hakim Khan v. Gool Khan, 41 Hakim Khan v. Gul Khan, 9 Hamid Ali v. Imtiazan, 161 HamidooUa v. Faizunnissa, 16^ Hamidnivessa v. Zohiruddin, 154 Hamir Singh v. Zakia 22, 23, 27,

28 Harihar v. Sheo Prasad, 139< Hasan Ali v. Mehdi Husain, 26 Hasan Ali v. Nazo, 36, 37,40 Hassarat Bibi v. Goolam Jaffar, 97 Hayath v. Syahsa Meya, 183 Hayat-un-nissa v. Mahammad Ali

Khan, 13, 20 Heera Lai v. Moorut Lall, 141 Henry Lnlach v. Zuhooroonnisa

96 Hidaitoonnissa v. Syad Afzool

Hossein, x30 Hirbai v. Gorbai, 7 Pumeeda v. Budl ^m, 36, 38 Hurbai v. Hiraji, 183 Husein Beg^.m v. Zia-ql-Nissa

Begam, 182 Hussain Beebee v. Hussain She-

rif, 127

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Ibrahim v^ Muhi Mir Udin, 1, 132 Ibrani&i v. Syed Bibi,cl61 Ibram Bibi v, Hussain Sheriif,

127 Jdu V. Amiran, 181 Ismal V. Ramji, 102, 106

Jadu Sfng v. Raj cu mar, 140 Jafri Be«am v. Amir Muhammad, 21,23,26,28,29,52

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OF CASES

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Jami^ya v.Diwao, 9 / Jangu V. Ahmad-Ulltlh, 130 Janki v. Girjadat, 1^5 ^ «

Janki Prasad v. Ishar Dap, 136, Jarfan Khan v. JaJabar Meah, 14^ J^un B»ebee v. Beparee, 166 Jewuw Do»8 V. Shah Kubeer-ot>d-

J)een, 117 JowaLrBuksh 4,6

V. Dhariim Singh,

K

Kaleloola v. Nuseerudeen, 116 Kali Dntt v. Abflulali, 183 Kaniar-un-Nissa Bibi v. Hussaini

Bibi, 100, 155 Karim Bakhsh v. Khudoi Bakhsh,

134, 141 , Kariyadan v. Kayat Beeran, 18-* KasiiM Huesain v. Sharif -un-Nissa,

108 Khojah Hidayut v. Rai Jan, 175 Khajoorooniasa v. Rowshan Jehan,

92, 101 Khanuin Jan v. Jau Beebee, 39 Khurshetbibi V. Keso Vinayek, 27>

29 Koonari Bibi v. Dalim Bibi, 64 Korban v. King Emperor, 179 Kudratulla v. Mahiui Mohan. 136 Kunlii V. Moidin, 154 ^ Kunhi Mamod v, Kuohi Moidin, ^9 » ^

Labbi Beebee v. Bibban Beebee,

97 Lajja Prasad v. Debi Prasad, J41 LallaNowbut tiall v.Lalla Je\#an

Lall, 138 *

Liaqat Ali v. Karira-un-'Nis^a^l*f7

Madhub' Chunder v. Rajcoonian.

Do68, 3, 90 'Mahatab Sing v. Ramtahal, 134

Mahatala Bibee v. fluleemoozoo- man, 176

Mahammad Azmat v. Lalli Be- gum, 175, 176

Mahomed Aheanulla v. Amar- chand Kundu, 121, 123, 125, 126 ,^fahomed Altaf v. Ahmed Buksh, 90 " "

* Mahomed Arshad v. Sajida

Banoo, 62

* Maho/hed Banker v, ^Shurfoon

Nissa, 175 Mahomed Buksh v. Hoss€ini Bibi,

104, 106, 108 « Mahomed Hosseiu v. Mohsia Ali,

133 Mahomed Sidick v. Haji A^raed,

7 Majidan v. Raju Narjiin,wl82 Marin Bibi, In the matter of, 151 Mafsit-up-Nissa v. Pathani, 175 Ma8than<»Sahib v. Assan Bibi, 156 Mayhew v. Mayhew, 168 ' ^ Mazhar Ali v. Budh Singh, 80 Mazhar Husen v. Bod ha Bibi, 90 Maherali v. Tajudin, 104 Mia Khan v. Bibi Bibijau, 3 Mir Ali v. Sajuda Begum, 88 Mir Azmat Ali v. Mahmud-ul-

Nissa. 154 Mirza Bedar Bukht v. Mirza

Khnrram Bukht, 156 M^gulsha V. Mahamed Saheb, 106 Moharaj Singh v. Bheechuk», 34 Mohinudin v. Manchershah, 102 Mohinudin v. Sayiduddin, 129 Moohummud . Ameenoodeen v.

Moohummud Kubeeroodeen, 96

Moonshee Buzloor Buheem v, Shumsoopnissa Begam, 153

Moonshee Buzul-ul Raheem v.

Luteefut-oon-Nissa, 165 ^

,, Moyna Bibi v. Banku Behari, 182

Mubarak Hussain v. Kaniz Bano, 139, 140

Muchoo V. Arzoon, 150 «

Muhammad Allabdad v. Muham- mad Iwiiiail, 28, 172, 174, 177

Muhammad Awaiz v. Har Sahai, 21, 28, 29

Muhammad Aziz-ud-din v/The Legal Remembrancer," 17, 118

Muhamm^ad Esuph v. Pattamsa Amma4, 114

Muhammad Gulsh^re Khan v. Mariam Begara, 97

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TABLE OF CASES •

IVI — contd.

^ Muhammad Husaia v. Niamat-ufi- ^ Nissa, 141 ( Muhammad Ibrahim v. Gulam r Ahmed, 13 Muhammad Karim-uUah KLan v. ^ Amani Begum, 158

Muhamraord Mumtaz v. Zubaida Jan, 108 «c oMuhamraad Nas*r-ud-din v. Abul •^r Hasan, 141

f- Muha^iimad Yimua v. Muhammad Yusuf, 141 Mujib-uo-rNissa v. ^^^^ur Rahira,

123, 124, r^6 Mulbai, In the goods of, 7 Mullic& Abdool Guffoor v^Muleka,

10i;i06 Muttyjan v. Ahmed Ally, 27, 28,.

30 Muzhurool Huq v. Puhraj Dita- rey, 124

N

Najm-un-nissa v. Ajaibali, 135 Nasrat Husain v. Hamidan, 13 Nawab-Umjad Ally Khan v. Mo-

hum4ee Begum, 101, 105, 112 Nizamuddin v. Abdul Gafur, 112 122 c Nizam-ud-Din v, Anandi Prasad, 182 Nobin Chunder v. Romesh Chnn- t der, 3 c Nur Kadir v. Zuleikha :Bibi, 179

Oomda Beebee v. Syud Shah Jo- nab, 176

J*athukutfci v. Avathalakutti, 120 Pathummabi v. Vittil Ummachabi>

24, 26, 27, 31 , 34, 182 Persbadi Lai v. Irshad Ali, 133 Phul Chaj^d v, Akbar Yar Khan,

116, 125 Pirans v. Abdool Karim, 127 Pirthipal Singh y. Husaini Jan, 22 ^,27 ^

Poonoo Bibee v^. Fyez Bu^sh, \^l Poorno Singji v! Hurrycfcurn^ 136 Proby V. Pnaby, 168 » • Purshotam %. Runchhod, 35

Qnrban v. Chote, 134, 13^, 137 '

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Rahimatb^.i v. Hirbai, 7

Rahim Bakhsh v. Muhammad

Hasan, 103, 104, 115 Raj Bahadur v. Bishen Dayal, 4 Ram Gopal v. Piari Lai, 136 Ram Kumari, In "the matter of, 5 Ramrao v. Ru(»tum Khan, 10 Ram Sahai v. Gaya, 136 Ranchodd^s v. Jugaldas, 134 Rujjub Ali V. Chundi Ohurn, 139

s

Sadakat Hossein v. Mahomed

Yusuf, 175, 176 Sahebzadee Begum v. Himmut

Bahadoor, 80, 88 Saiad Kasum v. Shaista Bibi, 91 Sajjad Ahmad Khan v. Kadri

Begatj, 105 Sakina Bibi v. Amiran, 134 , Saligram v. Raghubardyal, 138 Saliq-un-niosav. Mali Ahmad, 117 Sarkum v. Rahariian Buksh, 131 ^hah Abu v. Ulfa^ Bibi, 153 ^ Shaik Ibhram v. Shaik Suleman, ^ 105 Shaik Moosa v. Shaik Essa, 21,

33, 34, 96 Sharifa Bibi v. Gulam Mahomed,

Shamiing v. Santabai, 151 Sl^ikh KydraVuUa v. M a h i n i

Mohin, 1 t

Sheobharos v, Jiach I^ai, 142 c Sita Ram v. !Amir Begam, 182 • ^ Sitaram v. Shridhar, 34 * * ,

Skinner v. Or<^e, 4 Skinner v. Skinner, 5 •

^uddurtonnessa v.» M a j a d a

Khatoon, 41 Syed Wajid v. Lalla Hanuman,

140

TABLE OF CASES

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Taufik-un-Nisea v. Gbulam Kam- bar, 156

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Ujaga7 Lai v. Jia Lai, 136 -» Umardarnz AH Khan v. Wilayat Xliklian 88

' Vadake Vitil v. Odakel, 166 Valayat Hossein v. Maniram, 107

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VV^ghela V. Shekh Masludin, 9 Wahid Ali v^ Ashruff Hossain, . 127, 128

WahidunniBsa v. Shubrattnnj 25 Wazir-Jan v. Saiyyid Altafali, 97 Wazir Khan v. Kale Khan, 143 Webbe v. Lester, 9 >

Wise V. Sunduloonissa, 176

V

Yasin Khan v. Muhammaa Yar

Khan, 25 > Yusuf Ali Ai Collectoi' of Tip-

perah, 111

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TABLE OF ENACTMENTS CIT^D:

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^ Page.

AdniinistratorGeneral's Act Ilof 1874, 8. 17* \ f.. 35

Bengal, n.< W. P., and Ass^m Civif Court», XII of 1887, 8. 37 ... 8

Bombay Regulation IV of 1827, 8. 26 , ^ ... ^

Bombay Regulation VIII of 1827 ... f.. 32

Central Provinces Laws, XX of 1875, ss. 5-6 »„. ^1

^Christian Marriages, XV of 1872, s. 4 ...c 148

CivilProcedure, XIV of 1882,8. 214 c 143

Criminal Prbcedure,^V. of 1898, s. 488 f.. 153, 184

Curator's Act, XIX of 1841, s.s. 1, 5 ^ 35 '

East ^ndia Company Act /;i780) 21 Geo. Ill, c. 70. s.'l7 3

East India Company Act^(1797) 33 Geo. Ill, c. 142, s. 13 ...^ 3

Ev.Vience, I of 1872— e

8. rrX ... ... ... ... ... «.. ,ac ... OZ

9» lOo ... ... ••. ... ... ... ... ... 80

c 8. Xl^ ... ... ... ... ... ... ... ... 172

S. XItt ... ... ... ... ... ... ... ... 14 0

Freedom of Religion, XXI of 1850 42, 150, 181

Guardians and Wards, VIII of 1890 183

S8. /, -L • , ... .^. ... ... ... ... ... XsO

S3. 29, 30, 183

Indian Councils Act, (1861), 24 an*25 Vict.,'c. 67 3

Indian Siicoession, X of 1865 — '

8. 92 ... ( ... ... ... ... <* ... ... ... 94

8. 1.0 1 ... ... ... ... .•. •«. ... .. Oa

R 1Q0 ' fc ^ £9

C* *%/\J ••• ••• ••* •«« ••• a«« ••• ••• OM

Limitation, XV of 18V 7— ^

Sch. II, article 10 ... .. 142

articles 103, 104 ^ ... 160

Lower Burma Courts, XI of 1889, s.^ 4 ^ ... ■ U

Madras Civil Courts, III of 1873, s. 16 ^ ^ ^ 9

Majority, IX of 1875— ^ o

8. 2, •^ c. *. ... 146

8.3 4 o... 89, 100, 117, 17-8,

GudhLaws, XVIII of 1876- .• * ^

s ^ ' it

88. 0-15. •• ... ... ... ... ... ... ... 132*^

Probate and Administration, V of 1881 '. 35

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s* ^ ^-» ••■ ... ••• ... ... ... ... 20

ss, lGl-105 19

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TABLE OF ENACTtVENTS CIT,ED

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Punjab Laws, IV of 18/2— '

8S, J,0 ^.t ••• ... «•« H 88.9 20 ) ),

Slavery (abolition o^), V of 1843 ' ... SuccessioD Certificate, VII of 1889 . 8. 4 Transfer of Property, IV of 1882—

) 8. 2

> s. 52 -

s. 129

Trust's, II of 1882, s. 1 ... Usury, XXVUI of 1855 ...

1'age.

. . .

...

... 10

...

... '

... 132

' •••

...

... 42

...

... 32

• «•

~>

... 7

. . .

... ;

.,. 25

• ••

. i .

... 100

...

...

... 117

...

• •.

... 3

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1

. PRINCIPLES OF .MAHOMKDAN LAW...

CHAPTER I. '

Introduction of Mahomedan I^aw ikto British India. ' *■

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%, Mahomedan law introduced by legislative enactments. — The^ Mahomedan law is not the \jw of British India : it is ^nly the law so far as the laws of India have directed it to be observed.

Per Peacock, C. J., in Sheikh Kudratulla v. Mahini Mohan (a). ** The Mohamedan Law binds Mahomedans no more than otllers except in the matters to which it is declared applicable. It is then law because of its reception^ as one of our law sources in the matters to which \\ applies ^,(6). ^

2. Nature of the enactments. — The laws refer- red to in the preceding section are Statutes of Parliament, ^nd Acts and^ Regulations of the Indian Government. The Statutes provide, for the applica- tion of Mahom(3dan law by Chartered High Courts in the Presidency Towns, of Calcutta, Madras and^ Bombay, and the Act^s iind Regulations for the administration of th'\t law by Civil Courts in other parts of British Ir.dia. >These enactments enumerate the several matters in which Mahomedan law, is to , "be administered' in the places to which they respec- tively apply, but none of >them contains any express

y ___ . . _ J . . - —

(a) (1869) 4 B. L. R. 134, 169. See also Braja Kishor v. Kirti Chandra (1871)7 B.L.B. 19,25.

{V) Per Holloway, J., in Ibrahim v. Muni Mir Udin (1870) 6 M.H. C. 26, 31. ->

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MAHOMEDAN LAW

provision for the application of tho v/hole qf Maho- medan law in cases pf Mahomedans ii^ alf its branches and divisions. In mattery not expressly enumerated, the Mahomedan law is applied' as a matter of equity and good conscience, by the Char^^ered High Courts, as being Courts of equity jurisdiction, and by other Courts in British India, under specific directions in that ^ehalf contained in th^ several Acts and Kegulations.

The , di8tincti(Jii pointed out above is important, for when r Mahomedan law is applied as a mere matter of equity, the Courts have in Fome cases ,<jieclined to follow some of the rules of lyTanomedan law where such rules were, |n their opinion, opposed to equity and good conscience. Thus there is no specific provision in the Madras Civil Courts Act, 1873, (see section 6 below) for administering the Mahomedan law of " Gifts " to Mahomedans in the Mufassal of Madras. That branch of the law is applied to Mahomedans as a matter of equity and good conscience, with the result that the Madras Court has refused to adopt the doctrine of *' Musha *' and the rule which requires delivery of possession to the donee to validate a gift, en the ground that they are not consistent with equity and pood conscience (c).

3. Enumeration of the enactments. — The

provisions of the Statutes, referred toc in the pre- ceding section are set out in section 4, and the pro- visions of the Acts and Regulations in sections 5-11.

4. Enactments in force in Presidency Towns. —

As to the Presidency Town3 of Calcutta, Madras, and Bombay, it is provided that subject to any law made by the Governor- General in Cotincil the Chartered fiigh Courts shall, in <he exercise, bfi their original jurisdiction, , determine all question? relating to " succession and inheritance to lands,, rents, and goods, and all matters of contract and

c (c) Alahi V. JIvsm (1901) 24 Mad. 513.

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EXTF;:ST OF APPil^IOABlLITx' S

sealing between party an<l party " in the cace of Mahon'Iedans, by the law a^d usages of Mahome- dan.s, *'and whijre only one of the prrties shall be a Mahfdmedan," s*' by the -laws and usages of the defendant." .

2b 'Geo. Ill, c 70, a?i^ 37 Geo. Ill, c. 142— This section ^feproduces the law contained in statuies 21 Geo. HI, c. 70, 9. 17, and 37 Geo. Ill, c. 142, s. 13. The fornaer statute applied to the Supreme Court at Calcutta, and the latter to the Recorder's Courts at 'Madras and Bombay. Neither of these, statutes is repealed, though the Courts to which tliey -^ere applicable have been abolished. But they are alterable by Indian legislatures, for they are not included in the >ist of statutes which, under the Indian Councils Act of 1861, those legislature^ are precluded 'from altering, and in fact they have been materially altered. For instance, the Mahomedan law of contract has been almost entirely superseded by the Contract Act cf 1872 and other Acts. See Ilbert, Government of Indi», pp. 253 and 391. See also Madhub Chunder v. Rajcoomar Doss (c/), and Nobin Chunder v. Eomesh Chunder {e).

Act XXVIII of 18^5.— Th'\s Act repeals fhe laws then in lorCe relating to usury, and provides that in any suit in which interest is recoverable, the amount shall be decreed by the Court at the rate agreed upon by the parties. It was thought by Phear, ^fJ., in Alia Khan \. Bibi Bioijan (/), that the repeiii of "laws, relating to usu«y " effected »by the said Act, extended to Mahomedan laws. According to that view, the rule of Mahome- dan law which prohibits usur^ mus-t be taken as superseded by the provisions of Act XXi^III of 1855. If this be so, it is open to question wht'thpr the Indian legislature had the powef in 1855 to alter by legislatioL trie provisions of the aforesaid s^a/w^es, for i;he subject of usa.y is clearly a "matter of contract afad dealing between party and party " within the meaning of those statutes. Tiie rase above 1referr»'d to came before the High Court of Calcutta

c

(r/) (1<S74) 14 B.[-.^. 76.

(e) (1887) 14 Cal. 781. ,

(/) (1870) 5 B.L.R. 500.

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4 «^ ' MAHOtoDAN LAWc

c C c

in the Exercise of its on^maZ jurisdiction on a reference fK)m tKe

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Small Cause Court at Calcutt^. The point, h(^w€ver, has ^ao prac- tical importance, for the prohibition of the Korf'n against the taking of interest has been held to be nc more thaij a neWal precept.^ But no question as to the Act being ujtra vires of the Indian legislature can arise^n so far as it repeals the rule of Mahomedan lavs^- as tO usury irf^roduced amongst other rules of that law by Regulations and Acts of the Government of India.

Who is a MaKomedan ? — The status of a Mahomedan under the Statutes referred to above, to have the !|J^lahomedan law madecthe^rule <Jl decision, depends upon his being a believer in the Mahomedan religion. The mere circumstanBe that he may call hiinself or be terme<J by others a Mahomedan is not enouph. HiSgpnly claim to have a special kind of iaw^applied to him is that he follows and observes a particular religion that, of itself creates his law for him. If he fails to establish his religion, his privilege to the application of its law fails also {g).

Conversion to Mahomedanism. — But the rule that the Mahomedan law is to be applied to Mahomedans must be under- stood to refer to Mahomedans, not by birth merely but by religion also (Ji). The Mahomedan law therefore applies not only in the case of a person who was born a Mahor&edan, bu*t one who has become a convert tq the Mahomedan religion (^). But the Mahomecian law will not apply if the conversion to Mahoniedani^m is merely a colorable one. In Skinner v. Orde { j). a Christian, who was already th^' husband in Christian marriage of a living Christian wife, lived and cohabited for several years with a widow of native extraction who professed Christianity. In order to legalize this union, both he and the widow became Mahomedans and they contracted a marriage in Mahomed'an^ form, riie question in the caye related to the guardianship^ of thf widow's daughter, and their Lordships of the Privy Council 'observed in ^^assing : «* The High Court expressed doubts of th^ legality of this marriage which their Lordships thiiik they were well warranted '

(gr) Ila/diahadiir y. Blshen DayA (^\h'62) 4 All. 343. (K) Abraham v. Alrahm (1863) 9 M.I. A. 199, 243. *

(») Jvicala Bul'shx. Dharum Shu/h (1866) 10<-M.1.A. 511,537-38. (j) (1871) 14 M.liA. 309 ; 10 B.L.R. 125.

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EXTENT OF .APPLICABILITV

in entertaining"' (^). It is submitted that even if the conversion in tne ab^ve case b^d been bond iifie^ and not merely actuated by the desire to enjo\; the privileges of polygamy conferred 'by the Mahc\nedan law, the marriage would have been illegal, for a.per- son cannot by change of religion release* himself from obligations imposed by the law to which* he was subject prior to co^.version. But could an obligation so incurred be cast off by a change of religion which is not only made honestly without* any intent to^*, commit a fraud upon the law, hut with the mutual consent of ^ both ^ the partiesnaffected by such obligation ? To p^it the q^uestion in a more specific form — could Christian spousclli, marrie'd in the Christian form,'\lter rights incidental to, the marriage, such as th%t of divorce, by subsequent conversion lo Mahomedanism,, and going through a form* of marriage a second time accordin^^ to Mahomedati law ? A question similar to the above was raised in Skinner v. Skinner (/), but their Lordships of the Privy Council did not express any opinion upon it, as upon the view taken by their Lordships of the facts, it did not arise for decision. The spouses in that case were originally adherents of the Mahomedan faith. They subsequently espoused Christianity, and were mar- ried as professed Christians in a Church at Meerut. Some time ' after the marriage, both' spouses Veverted to their original creed, and \^ent through the form of marriage a second time ^according to Mahomedan law, atid continued in the practice and profession of the Mahomedan faith until the deatli of the husband. Several years before his death, the wife, in conseque^jce of domestic un- pleasantness, left his house and n'fever returned to it. After his death the wife brought a suit to recover one-eighth of the deceas- • ed's estate as his widow according to Mahomedan law. The main plea set up in defeoee was |;h'At she was divorced by the deceased

according to Mahomedan law §everal years before his deati, and

1

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"(Ji) lb. p. 32-t. See also In the matter of Ram Kumari (1891) 18 Cal. 264,

wheie t^ie High Court said : •' A sacred and solemn relation like marriage

c«innot, we think, be regarded as terminated simply by the change of faith

of eithei spouse withctit notice to the other, or the intervention of a Court

of Justice." In that case a Hindu wife became a convert to iiahome-

danism and subsequently married a Mahomedan, and the question was

whether she was guilty of tho offence of bigamy.

(0 (1897) 25 Cal. 537. at p. 546. ' ,

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b MAHOMED^ N T^AW r

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was not iherefore entitled to any share of the inheritance. But the divorce was not, proved, and the widow's claim was allowed. Had it been shown that the deceased did, in fac^t, divorce his wife accordingr to Mahomedan form, the qnest'ion would have arisen whether, ijaving regard to the fact that the first Biiarriage was in the Christian form, the subsequent reversion to IVIabomed^ni&m and marriage in Mahomedan form could have the effect of enabl- ing the husband to divorce tbe wife according to Mahomedan law, or whether he could effect a divorce onl^y in manner prescribed by the law acl^ording *o which the first marriage was cel^rated. In Jowala V. Dharunf{m), which was decided by the Privy Council in the y^ar 1886, their La'^dships observed, '* Whether it is comje- tent for a family conveVted from the Hindu to the Mahom^an faith to retain for several generations Hindu usages and customs, and by virtue of that retention to se^ up for itself a B{)ecial and customary law of inheritance is a question which, so far aSa their Lordships are aware, has never been decided. They must ho^v'ever, observe that, to control the general law, if indeed the Mahomedan law admits of such control, much stronger proof of special usage would be reauired than has been given in this case" (n). But in the case of Khojas and Cutchee Memons, it has been held by the High Court of Bombay in a series of cases that in matters of succession and inheritance they are governed by the Hindu law. Both these sectc were originally Hindus who became converts to Mahomedaniam about four hundred years agd, but retained from times immemorial the Hindu law of succession. The leading case on the subject is the Case of the Khajahs and the ^Memons^ where it was held by Sir Erskine Perry that if a custom ac to succession is found to prevail amongst a sect of MahomeddUS, and is valid in other respects, the Court will give effect tter it, ahhough it differs from the rule of succession laid down in the Koran (o). K a cust,om opposed to the Hindu law of succession is alleged tp. t^xiso amongrst those Fects, the burden of proof lies on the person

ivi) (1S66) 10 M. I. A, 511. (n) Ih. 538.

(o) (1847) Peiry, O. C. 110, 2 Mor. Dig. 431 : AhUl Cadur v. Tnrfier (1884) 9 Bom. 158.

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EXTENT OF APl^LICABILITY ' 7

lettingiup that custom (p). And it has been held by the* same Co»jrt -Shat the Sjtmni Bora Mah^medan community oS Gujarat and the Molesalarif* Girasias of Broach are also governed, by the Hindu law in matters 9f succession and inheritance (q).

Where both parties to, d transaction in dispute are IS^ahoinedans. — Where both parties to a ^* dealing^' or iransac- tion are Mahoraedans, and a suit is brought in respect of that transaction, the dispute is to be decided according to Mahomedan* law, no matter who the parties to the «w/^ may be. A., a Maho- medan, ma^es a gift of his house to his wife B., alsp a Maho- medan. Subsequently A., without B.'s knowlr/ige, bj3rr,')W8 money from C, a European, on a mortgage of the same property. A. fails to pay the amount of the mortgage debt, and C. advertises the property for sa^^. B. (Mahomedan) sues C. (Euroj..fean) for a declaration of her absjplute title to the property, and to restrain C. from selling it. C. contends that the gift was made with intent to defraud subsequent transferees for consideration, and that it is, therefore, voidable at his option under the provi- sions of the Transfer of Property Act, 1882, section 53. The question of the validity of the gift must be decided by Maho- medan law, the parties to the gift being Mahomedans, though one of the parties to'the suit }s a European. According to that law, the gift is not invalid because it may have been , made with the intent aforesaid (r). See also Transfer of Pr<»perty Act, sections 2 and 1^9. The rule of decision would be the same even if both the parties to the suit were non-M^homedan?, J as where B. hfd assigned her interest in the house to a Parsi, and the suit had been brought by the assignee. o

Where only one of, this parties to the transaction is a Mahomedan. — Ir>tliis case, questions in dispute are to be determined actordi^ig to *jthe laws and usages of the defendant^

o *^ ~ : T

OO Birbai v. iSorbai (1875) 12 "B. H. C. 294, S05 : Bah iviatbai v. mrbai (1877) H Bom. 34 ; In re Hajl Ismail (1880) 6 Bom. 452 ; Ashabai v. Naji Tytb (1882^) ^ Bom. 115 ; Mahomed Sidirk ,v. Hajl Ahmed (1885) lOfeom. 1. In the ^oods of Mvlbai (1866) 2 B.H.C. 276.

(g) Bai ^Baiji v. Bai Santok (1894) 20 Bom. 53 ; Fatesangji v, Harisangj'iy ibid., 181. ^

(/•) ^QQ Azim Unnissa \ . i>aZe' (1871) 6 M. H. C.i55.

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8 ' ' MAHOIkfEDAN LAWf

. < The Mahomedan law can, therefore, apply only wherj the defendant is a Mahomedan. ^ A., a Mahomed^an, borrows money from B., a Hindu. • (Here only dne of the parVes to the' transac- tion is a Mahomedan). A. dies leaving twp so^s, C. and D., and they divide the estate equally between them. B. then sues C. alone to recover the whole debt. The question whether 0. can be rendered liable for the whole debt "^is to be decided witH re- ference to Ma^^omedan law, the defendants being Mahomedans,

' end according to that law A, is not entitled (to a decree against

f 0. forfmore than a moiety of the debt (s)/'

5, In Bengat N.-W. P., and Assam. — As to Bengal, North- West ProviiKpes, and Assam, it is 'enacted by Act %ll. of 1887, section 37, that the Civil Courts ef tho&e Provinces shall decide all qaestions relating to " succession, inheritance, rparriage, , ... or any religious usage or institution," by the Mahomeolan law " in cases where the parties are Mahomedans," except in so far as such law has, by legislative enact- ment, been altered or abolished. In other cases, or in cases not provided fpr by any other law for the iime ]ieing in force, the Court shall act according to justice, equity, and good' conscience.

Extent of application of the Act. — Tlie Civil Courts Act XII. of 1887 extends to the territories for the time being ( respectively administered by \he Li^utenant-Goverrfor of Bengal the Lieutenant-Governor of the !I*^orth- Western Provinces, and tl^e Chief Commissioner of Assam, except such portions of those territories as for the time being afe not subject to the ordinary civil jurisdiction of the High Courts, j (

Justicfe, equity, and good conscience. — These iwords were originally synonymous with the rules ^of natural reason, or the law of nature. But in British India they have generally been' interpreted to mean the rules of English law so far as they* are

(s) Bussunteram v. Kamaluddin (1885) 11 Cal. 421. • The doubt expressed in the ease as to the applicability of Mahomedan law cannot , be sustained. »

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EXTFVNT OF APPLICABILItV * 9

applicaSle to Indian society and circumstances {t), **Anc?thns unde-f thf influence of English judges, native law and usp^e were, without express leg?^lation, largely supplemen^ed, modified and suj)erseded by English law (w)." i

Custom. — Th^ above Act *• gives ro opening, where parties afe Mallomedans, to the consideration of custom"; evyience, therefore, is inadmissible under that Act to prove a custom of succession at variance with the Mahomedan law (??}*.

6. In the Mufassa^ of iMadras. — As to the Mufa^sal of Madras^, it is enacted by the Madras Civi> Courts

'" Act III. of 1873, section 1 6, that all questions regard- ing " succession, inheritance, marriage, . . % . or <iny religious usage or institution" shall be decided in cases where the* parties are Mahomedans, by the Mahomedkn law, or by custom having the force of law, *and in cases where no specific rule exists, the Courts shall act according to justice, equity, and good conscience.

Custom. — Note that the above Act expressly recognizes custom, unlike the provisions of Act XIT. of 1887.

7. In the Mufassal of Bombay. — As to the Mufas- sal of Bombay, it is enacted by Regulation 'IV. of 1827, section 26, that "the law to be observed in tb£ trial of splits shall be Acts of Parliament and Re- gulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of , the country in which the suit arose ; if none such appears, the-,law of the defendant, and in the absence of specific law. and usage, justice, equity, and ,good

conscience alone.""

o ^ ,

' («) Weyhela v. Shekh Maslvdin (1887) 11 Bom. 551, 561-, L. R. U I;- A. 89, 96; Dada v. Babaji (1865; 2 B. H. C. 36, 38 ; Webbe v. Lester (1865) 2 B. H. C. 52, 56. ,

(?f) Ilbei't, Governvient of India, Z^\,

(v) Jammya v. Diioan (! 900) 23 All. 20 : Hakim Khan w. Gul Khan (1882) 10 C.L.R. 603, 605.

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10 ' MA HOMED AN LAW

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In a recent case, the High Court of Bombay gave effoct to u usage prevailing in this count^ry of performing jites and cejeraeniea at the graves of d^eased JMahohifdans, and granted an injunction at the suit of the Mahomedan residents of,Dhafwar restraining a purchaser from the ownef of \h» graveyard from obstructing them in performins: religions ceremonies at the graveyard [w). c *

8. In the Panjab — As to the Panjab, it is enacted by the Panjab Laws Act IV. of 1872, sections 5 and 6, as follows : —

" In (|uestions regarding succession, . . . .4)ctrothal, marriage,* div&ce, dower, .... adoption, guardian- * ship^ minority, basCardy, family relations, wills, leg- ac[e^, gifts, partitions, or any religious usage, ^or institution, the rule of decision shafi be —

(1) any custom applicable to the parties ^con- cerned, which is not contrary to justice, equity or good conscience, and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;

(^) the Mahomedan law, in cases where the parties are Mahomedans, .'. . except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custon^ as is above referred to."

^ "In cases not otherwise specially provided for, the Judges shall decide according to justice, equity, and good conscience." « »

GuLtom. — '* As regards Mahomedans, prost^Hution is not looked on by their religion or their laws with ^y more favorable eye than by the Christian religion and laws." Accordingly^ the Ctief Court of the Panjab refused to recognize a custom of the^Karfchafe which aimed at the continuance of prostitution as a family busine^,

and the decision was upheld bv the Privy Council on appeal (x).

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(^w) Eainrao v. Biistiunhhaji (1901) 26 Bom, 198.

(a?) Ghasiti x^Ghasiti (1893) 21 Cal. 149 ; L. R. 20 [. A. 193.

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1 EXTENT OF APPLICABILITY / 11

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9. |n Oudh. — The provisions of the Oudh Laws^ Act XA«ITI. of -^187 6, sectioiis 8, for the law to be administered in the case of Mahomedans, are the same 'as in the i^anjab.

lOl In Central Provinces — As to the Central Provinces it is enacted by the Central Provinces Laws Act XX. of 1875, sections 5 and 6 as follows : —

"In questions regarding inheritance, .... betro- thal, marriage, dower, ouHrdiarship, mmority,

bastardy, family relations, wills, legacies, gifts, parti- tions, or any religions usage (^r in-stitution, the rule of de'cision shall be the Mahomedan law in cases v^here the parties are Mahomedans, .... except in so far as such law has been, by legislative enactment, altered or aljolished, or is opposed to the provisions of this Act :

provided that, when, among any class or body of persons or among the members of any family, any custom prevails which is inconsistent with the law applicable between such persons under this section, and which, if not inconsistent with such law, would have been given effect to as legally binding, such custom sha^l, notwithstanding anything herein con- tained, be given effect to."

" In cases not provided for by [the above clause], •or by any other law for the time being in force, the Court shaM act according to justice, equity, and good

conscience."

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*. 11. '^ In Lower Burma. — The provisions, of the " Low^r Burma Courts Act XI. of 1889, section 4, for the law to be administered in case of Mahome- dans, are the same as in the Mufassal of Madras.

•See section 6, above. There is no statutory provision for the application of Mahomedan law in Upper Bui ma.

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12 \ MAHOMEDAN LAW

CHAPTER II. ' '

< Mahomedan SeCts and Stsb-Sects.

. 12. Sunnis and Shiahs.— The Mahomedans are divided into two sects, iiaiiiely, the Sunnis and the Shiahfc,. • '

^«^ 13. Sunni sub=sects.— The Sunnis are divided ^^into four sub-sects, namely, the Hanafis, the MaHkis, the Shafeis, and the Hanbalis. •

The Sunni Mahomedans of India belong princi- pally to the Hanafi/school.

Presumption as to Sunniism — The gr.-eat majority of the Mahomedans of this country being ^unnis, the presumption will be that the parties to a suit or proceeding are Sunnis unless it is shown that the parties belong to the Shiah sect {y).

14. Shiah sub-sects —The Shiahs are divided into three sub-sects, namely, the Asna-Aasharias, the Ismailias, and the Zaidyas.

The Khojas and the Borahs 6i Bombay belong * to the Ismailia sect.

15. Each sect to be governed by its'^ law. — The

^ Mahomsdan Jaw applicable t6^ each sect i^ to prevail ^ as to litigants of *that sect, c

^ It was so held by the Judicial Committee of the Privy Coun- cil in Deedar Hossein v. Zuhoor-oo^i Nissa (z). The Sunni law will therefore apply to Sunnis, and the Shi^h law to Shiahs, and the law peculiar to each school and sub-^ect will stpply to persons belonging to that school or sub-sect. And it has bee^ held by the Allahabad High Court tha't a woman of the Sunni sect marry- ing a Shiah husband is entitled to t\}e privileges secured to* her married position by the law of her sact, the Courib observing, '* no

1

Qy') Bajatun v. Bilaiti Khanum (1903) 30 CalS 683, 686. {z) (1841) 2 ^.I.l. 441, 477.

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authority has been edited to us for the theory that a Sunni woman contracting marriage with a Shiah beccmes thereby governed by the Shiah law." NasnU Husain v. itamidan (188^2) 4 All. 205.

16. Change from one Sunni sub-sect into another. —

Ev^ry Sunni ^lahomedan, who has attained the' age of puberty, can renounce the doctrines of- the b^ab- sect to which he belongs, and adopt the tenets of any of the other three sub-sects.

This follows from the juagment of the Bombay High CouVt ii\ Muhammad Ibrahim v. Gulam Ahmed (a). In that case, a Mahomedan female of the Shafei sect, after attaining puberty^ adopted the tenets of the Hanafi school, and married without Her father's consent. The nv^rriage was valid according to the Hanafi law which did not require the fat^her's consent, she having arrived at the age of puberty; but it was not valid according to the Shafeite law which required such consent, though she had attained puberty. The above facts gave rise to the broad question whether after puberty a Sunni Mahomedan female of any one sect could elect to belong to whichever of the other three sects she pleased,, and it was held that she was at liberty to do so, and that the marriage in question was iftider the circumstances valid. Though the case was that of a female, the authorities on which the judg- ment was based justifj the wide terms of the section set out above.

In Hayat-un-nissa v. Muhammad All Khiii (6), a Sunni Mahomedan female, aiter her marriage with a Shiah husband, con- formed outwardly to his religion, and the question was whether after the death of the husband,,, she had reverted to the Sunni creed. The importance of;athe question arose from the rule of succession set out in section 21 below, and it was held by their Lori^ships of '*he Privy Council that the succession to her estate wa& governed by the Sunni law as throughout her widowhood she was a member of the Sunni sect, havi'^ig returned to the religion of her

youth, and discarded that which was temporarily imposed upon

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(«) (1864) 1 B.H.C. 236.

(b) (1890) 12 All. 290, L.R. 17 LA. 73. ^

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MAHOMEDAN L'kW

her by the necessities of her posiiion as a Shiah wife/ BuC the point to be noted here is that it was not suggested either* in the High Court, nOr before theil- Lordships, tC5at a Sunn! Mahomedan was precluded from adopting the te*ieta*of the Shiah sect, or having once done so, trom rei:ouncing the new^ creed and reverting to the old one. ' ' -«

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' CHAPTER III.

SouRCE§ AND Interpretation* of #

Mahomedan Law,

17 Sources of Mahomedan Law — There are ^*our sources of Mahomedaii law, namel}', (1) the Koran; (2) Hadis, that is, pj'ecepts, actions and saytngs of the prophet Mahomed noj written down during his life- time but p.-eserved by tradition and hai^ded dgwn oy authorised persons; (3) Ijmaa, that is,» decisions of the companions of Mahomed awd his disciples; and-' (4) Kiyas, being analogical deductions derived from a compnrison^of the first three sources wh^ they did not apply to any particular case (c).

The Kiyas requires the exprcise of reapon, and it appears that •though Abu Hanifa, the founder of the Hanafi sect of Sunnis, Wfls so much inclined to the exercise of reason that he frequently ^preferred it in manifest cases to traditions of single authority; the founders of the other Sunni sects 8eld6*m resorted to Kiyas (c?).

18. Interpretation of the Koran — The Courts,' in administering Mahomedan law, should not as>a rule attempt to put thdir own construction on the Koran in opposition, to the exp^-ess ?5uling of Mahomedan commentators of great antiquity arid high authority.

It was so laid down by their Lordships of the Privy Council in Aga Mahomed Jafer v. Koolsom Biehee (e). In that case it wa3 'held by the Recorder of Ran£.>oon on the authority of a passage of the Koran (Snra TI. vv. 2il-2) that a Ma})omedan wid^w was entitled to raaintenance' out of^he estate of her deceased husband fof one year after his death, in additix)n to her share of the in- • heritancp, though the contrary is stated to be the law in the

Hedaya (Book IV. ; ch? XV, sec.iii) and the Imamia ( Batllie,

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> (c) Morley, Introd., ccxxvji.

{d) lb., p cexxxvii. i

(e) (1897) 25 Cal. 9,18. J

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16 \ MAHOM^DAN LAW '

p. 170). Their Lordships held, following thfe latter ^autWities, that t^e widow had no suclTrifijht, and observed that it was not for them to speculate on the mode in which the tf xt quoted from the Koran was to be reconciled with the faw a% laid down in the Heday§ and the ImamiS,. Their tLordships pr(foeeded to^say : f ' It wou^ be wrong for the Court on anoint of this kind to < attempt to put their own construction on the Koran in opposition to the express ruling of commentators of such great antiquity and high authority."

19/ Precepts of the Prophet — Neithe/the ancient texts nor the*^precepts of the Prophet Mahomed should be* taken literally so as to deduce from them new r^ks of law, especially when sucl;i proposed rules do not conduce to substantial justice.

It was so laid down by their Lordships of the Privy Council in Abdul Fata Mahomed y, Rasamaya (/), on appeal from the High Court of Calcutta. It was there held by a majority of the Full Bench of the High Court that a dedication of property, for the benefit of the settlor's family in perpetuity, with an ultimate gift for the poor which was not to take effect until after failure of the descendants of the family, does iiot constitute a walcf. On the other haiid, it was held by Amir Ali J., in his dissenting judg- ment, that a gift to the donor's descendants without any mention of the poor might be supp^orted as a wakf. In support of his view, ttfe learned judge relied on a precept of the Prophet Mahomed to the effect that *'a pious offering to one's family to provide against their getting in^o want, is more pious than giving alms to the beggars. The most^excellent of sadahah is that which a man bestows upon his own family.'l Their Lordships upheld the decision of the majority, and in commenting upon the judg- ment of Mr. Justice Amir Ali, observed as follows j " Cleanly the Mahomedan law ought to govern a purely Mahomedan dis- position of property. Their Lord&hips have endeavoured to tha best of iheir ability to ascertain and apply the Mahomedan law as known and administered in India; but they cannot find that it is

t (/■) (1894) 12 Cal. 619, 632; L.R. 22 I.A. 76, 86.

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ABU HANII^A AND HIS* DISCIPLES / 17

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in a^cord^bce with the absolute, and as it seems to them extra*ra- ganjt, »ppliiation oF abstract precepts taken from the mouth jf the Prophet. Those preempts may be cixceUent in thp,ir proper appli- cation Bi^ it yould Jae ^^ong to the great law-giver to

suppose that he is thereby commencing gifts for which the donor exercises ao self-denial." * •

The words of the section are borrowed from the judgment of their Lordships in Baqar AH Khan v. Anjuman Ara Begam (g),

Ahu Hani fa and his tRvo disciples, — ** It is a general r^le of interpretati*on of Ihe [ HanafiJ law that where tiere is ^ differ- ence of opinion between Imam Abu Hanifa' [ the* foun^^er of the Hanafi school] and his two disciples, Qazi ^u Yusuf and Injam Muhammad, the opinion of the majority prevails" (A). •

Abu Hanifa and Muhamn^ad were purely speculative juris- consult^; but Abu Yusuf, whilst equally versed in traditional lore, had, in his position as Chief Justice of the Empire of Khalif Harun-ul-Rashid, the advantage of applying legal principles to the actual conditions of human life, *' and his dicta (especially in temporal matters ) command such high respect in the interpreta- tion of Muhammadan law, that whenever either Imam Abu Hanifa or Imam MuhanAnad agnees with him, his opiniofi is accepted by a well-understood rule of construction " («).

20. Ancieat texts. — New rules of law are not to

be introduced because they seem to lawyers of the present day to follow lo<^ically from ancien? texts however authorifative, when the ancient doctors of the law have not themselves, drawn those conclusions.

•

It was so l*id down by tlieir Lordships of the Privy Coancil in Baqar Ali Kha% v. Anjuman Ara Begam (j), where it was held, overruling a dec*ision ^f the Full Bench of the Allahabad

»

ig) (190!2)25 All.236,254.

(Ji) Per Mahmood, J?, in Agha AllJChan v. Altaf Hasan Khan (1^92) 14 All. 429, -148; Abdul Kadir v. iSalima (1886) 8 All. 1(56-167. •

(0 (1886) 8 All. p. 162, see also Muhammad Aziz-ud^din v. The Legal Bememhvancer (1893) 15 AH. 321, 323.

0) (1902) 25 AU. 236, 254. ' ,

2 • ^

• •

c

C

c

c

c

18 ' MAUOMEDAN LAW

\ H?gh Court (/j), that a valid wakf can be created by wi^l as ouch by the Shiah law as by the Sunni law. In th^i case jiist tf ted, it was held by IVIalmood, J., tibat as a wakfff> according to Shiah law was a contract, and required ^4elivery of seisiei, a Shiah could not make a valid wakf by will^ It was in reference to this part of the judgment that the^ir Lordships made the observatif^ns wAich are^et out in the present section, c «.

(k) Agha All K*han v. Altaf Hasan if//«w«(1892) 14 All. 429.

f

t

C

c

c

c

c

c >-

• • . CHAPTER IV.

Of SNjccession in General. ^

21.» ApplicaAon'of a* iVfdhoniedan's estate. — The

property of a cfeceased M^h^medatl is to be applied succe^ively in payment, of (1) his funeral expe^ises and death-bed charges, (^) expenvses of obtaining probate or letters of administration, ^(3) ^ages due for services rendered to the deceased within three months ne«:t preceding his death by any labourer, artisan or domestic servant, (4) other defets*of the deceased according to their respective priorities (if an^ip), and (5) legacies not exceeding one-thir^of what remains after %11 the above payments are mad?; the residue is to be distributed among his heirs according to the law of the sect to which the deceased belonged at the time of his death.

According to Mahomedan law proper, the property of a de- ceased Mahomedan is to be applied in the first place in payment of his funeral expenses; secondly, ill discharge of his debts; thirdly, in payment of thew legacies Jto the extent mentioned in* the section.; and the residue is to be divided among his heirs : Rumsey's Al Sirajiyya^, 12. And here it may be noted that a Mahomedan cannot dispose of by will more than one-third of what remains after payment of* his funeral expenses and debts. The provisions for tl^^e order in whish death-bea charges and the wages specified in the above section are to be paid, and the provision for expenses of obtainiug;^robate and letters of adminis- tration, occur *n the ProbatS and Administration Act, 1881, ss. 101-105, which applies amongst others to Mahomedans. • The last-mentioned provision hlis the effect of reducing the (leVisable third to the extent of th« expenses of takin"^ out representation, the death-bed charges being merely a species of debt, and the residue divisible among the heirs will also be reduced to th« same extent. Thus far, the rule of Mahomedan law set out above is superseded by the provisions of the Probate and Administration Act. »

c c

1 ^^ \ MAHOMEDAN LAW c

o

The priority of debts over legacies is also, recognised b^ the said AH, s. 105. Having ' regard to the order in which fhe debtsc are to be paid, that is to say, beib^e distribution of the estate, it was held by the High'^Court of ^ Alfahabad in a recent case tl\^t a decree obtained 'by a widow foi< her dower payable out o£ the estate of her deceased .husband, being substantially a decree for payment of a debt due by the estate, had priority over a decree obtained against an heir of the deceased by a *: creditor of the heir '(^). ^

Law of the se-J to which the deceased belonged—It has been held by the'JudiSial Committee of the Privy Council that the succession to the estate of a deceased Mahomedan is governed bj^ the law of the sect to which he belonged at the time of^ his death, whatever may be the sect to which the persons claiming his estate as heirs may belong. A,^a Shiah, sues B, aSunni, for a declaration of his right to succeed to the estate of C. The facts are such that if the succession was governed by the Shiah law, A would be entitled to succeed ; but if it was determined by the Sunni law, B would be entitled to succeed. It is found that I C, at the time of his deatL, belonged to the Sunni sect. The succejsion will therefore be governed c by the Sunni law, and B is entitled to succeed (m).

22. Vesting of Estate in Execiitor and Adminis- trator.— The executor or administrator, as the case may be, of a deceased Mahomedan, is, under the. provisions of the Probata and Administration Act, *^ 1881, his legal representative for all purposes, and all the property of the deceased vests in him as such.^ c

c

See Probate and Administratio6( Act <-V of 1881,9,4. An

'^ executor (wdsi) under the^ Mahomedan law is mertly manager

of the estate, and no part of the estate of the deceasedj_ vests in

him' as such. And the result was the same s\en where probate

of the will of a Mahomedan was granted, prior to the date of

(0 Bhola Natl v. Maqhul-un-Nissa (1903) 26 All. 28. ' (in) Hayat-un-Nissa v. MuJ^^mmad (i890) 12 All. 290, L. R. 17 , I.A, 73.

»

VESTn\G OF INHE*RITANCE * ^21

the* Probate and Administration Act, by the late Supreme Cdtirts and rtie pi^sent High Courts in exer,fise of powers under their respective Charters (Vi). Since tJie enactment of that Act, all the prqperty of a d^ceaged Mahooiedan vests in his executor as such, and the VjjBsting is not «uspen^ed till the grant of prcTbate. • This provision enables* the ^executor before pro%ate to give a valid discharge to the debtor, and places him in the same position in that respect as an executor by English law (o). It is hardly necessary to obsdrve that what vests in the executor or administrator under the Pr(tbate and Administration Act is >he legul estate as distinguished from equitable estate.' •

"All the property of the deceased ve^ts in him as such^ See^notes to the following section undepthe head " Effect of subsequent grant of adnfinistration." •

23* Devolution of inheritance. — Subject to the provisions of the foregoino^ section, the whole property of the deceased when he dies intestate, or, when he has left a will, so much of it as cannot be, or is not, disposed of by the will, devolves on his heirs ^in spefifi'^ gV>qrpg y the moment of his , death, and the devolution is»not suspended by reason of debts being due from the deceased.

The above rijle follows from the decision of the Allahabad High (jowYtmmlafriBegam y.^ Amir * Muhammad (^ ) read with the preceding section. According to Mahomedan law proper, which does not recognize any representation to the estate of a deceased Mahomedan ( q ), the estate of the deceased devolves * upon the heir^ in specific i^liardfe immediately upon his death (r). It is not, however, ithe legal estate alone which vests

; — '— — f '- —

(n) ShaiU MoosaY. Shaik Essa (1884) 8 Bom. 241, 252. • 00 i*., P-255. • •

(^) (»1887)7A11. 822, followed in Muhammad Awaiz \. Uar Sahai (•1885) 7 All. 716.

(q) Amir Dulhin\. Baij Nath (1894 ) 21 Cal. 311, 315.

( r ) A contrary opinion was expressed by Maricby, J., in Ass^mathcm Nessa Bibee ^. Lutchmeeptit S'figh (1878) 4 Cal, 1 42. 158, where the learned judge stated that *' on the decease of a Mahomedan, neither his estate vested immediately in his heirs, nor did his 3eirs immediately become liable to his debts.'* But this i^no longer law, » •

j,^:^?

• »

9

•

S

»

/

I.

22 MAHOMED AN LAW

in the heirs, but both the legal and the eqnitable estate. The

vesting or devolution of '^inheritance doe^ not depend on "the

distribution of the estate which is dealt with in s. 24 below. Nor

c

is it contingent upon, or su^pen^ied, tUl pUyment of debts due from the estate. Anj^ one 6f the heirs may^ therefore, alienate his .share of the inheritance by ^absolute sale or by mortgage notwithstanding any debts which might be due from the deceased. This explained the principle underlying the decision of the Privy ^' Council in Bazayet Hossein v. DooH Chund ( s ), where it was held th^t a creditor of a deceased Mahomedan can»J0t follow his estate iiitoithe hands of a bond fide purchaser for value to Tv^om it has been alienated l^v his heir-at-law ( see a. 2^, below).

^'he doctrine of '''Vested Inheritance" set out in s. 3^ also follows from the same rule.

Effect of subsequent grant of administration. — It hsjs been

stated above that what vests in the heirs is not only the legal,

but also the equitable estate. If letters of administration are

subsequently obtained, the legal estate will be transferred to the

administrator ( see s. 22). And if in the meantime some of the

. heirs have disposed of their share as they can well do, it is the

legaV estate in the remainingt propert}' that alone can vest in

{ the administrator. It is not clear how, under those circumstances,

full effect can be given to the words of the'* preceding section that

all the property of the deceased shall vest in the administrator

1 as such* ^j

24. Distribution. — If the estate is not completely involved in debt, the heirs may divide it at any time after the death of the deceased, and the distribution is not iliable to be suspended tilf payment of the debts.

This, it is submitted, is the correct reading of \^he passage quotef from Mr. Hamilton*s Hedaya in the Full Bench case 6l Hamir Singh v. Zalcia {t), and .ngain referred to in 'Pirthipal Singh, ^. Husaini Jan (u). The said passage runs as follows : "The

(is) (1878) 4 Cal. 402, L.E. 5 I. A. 211. * (0 (1875) 1 At. 57, 59. * (m) (1882)*4 All. 361. C

LIABILITY FOR DEBTS 23

» •

circumstance of a ffgncill debt attaching to the estate of a deceased pei'son does not prev^pt the heirs froM inheriting, whereas nf the estate were completely involved in debt they would be prevenjied"; Hedaya* Bk. XXVIf CIK III.* BuP it does not follow that if the debt is not small, »bat of considei'bble anaount, the distribution should J)e snspended"till the debt is paid. " What the Mahomedan law says is that it is only when the estate is completely involved that the heirs cannot take the estate, and a division ^ongst them cannot be allowed beforl the debts are discharged" {v). "What js meant l>y 4.he heirs to an insolvent estate hemg prevented fi^m inheriting simply refers to the rule that nothing wi^ b« left for them to inherit if the liabilities of the deceased swallow up the wh(iJe estate" (lo). ** The inheritance of anjieir like a legacy tnay be absolutely defeated «f the debts of the deceased at the ii|pe of the administration of his estate are found to absorb the whole of hi^ property'' (.'*).

25. Liability of heirs for debts — After the estate is distributed, each heh^ is liable for debts due from the deceased to the extent of a share of th^ debts proportionate to his share of tjie estate.

This rule was the i!)asis of tiie decisions in Hamir Si^gh v. Zakia (y), a,i\d Fir thipal .Singh y. Husaini Jan (2).

26. Alienation by an heir of his share before payment of debts — (1) Any heir may alienate before distribution of the estate^ his own »share eitlier by absolute sale or by mortgage, and give the alienee a good title thereto, notwithstanding any debts that* might be dcie from th« deceased, provided that the alienee acts iv good' faith and under circumstances which axe not sufch asi*to raise a reasonable presum-

, tion that he had notice of the debts. » •

(r) Bussunteram v. Kamaluddin f 1885) 11 Cal. 421,428.

(lo) Jatrl Begam v. Amir Muhammad Khan (^1885') TAIL 8:42, 839.

(x) lb., p. 838.

(y) (1875) 1 All. 57. ,

(z) (1882) 4 All. 361. »

(

I.,

24 MAHOMEDAN lAw

'(2.) But where the estate consists, of immoveable property, and the alienation is m^de by aA heir '^of his rshare in such property during the pendency of a suit brought by a ctedi'cor itf Wnich a decree is made ^ for payment of the, debt out of the estate, the alienation cannot affect the rights of the creditqr, and he may execute the decree by attachment and sale of the share so alienated. ♦

{Clause (1). — The statement of hw in cl. (1) follows from the rule laid down in s. 23 above. It rests upon tlie decision of the Privy Council in Bazayet HosseiuY. DooU,Chund (a), and is ir accordance with*" the English law applicable to heirs and devik'-.ees as to real estate, and to executors as regards personalty. In that case, it was stated by their Lordships, that " a creditor of a deceased Mahomedan cannot folloVv his estate into the hands of a bond fide purchaser for value to whom it has been alienated By his heir-at-law." But an examination of the case shows that the rule is to be confined to an alienation by an heir of his own share, and that it cannot be extended to a transfer of all the property of which the heir is in possession, Xhis view is borne out by a recent decision of the High Court of Madras wh^re it was held that a sale by an heir, who was in possession of the entire inheritance, w^^s not binding upon other heirs beyond what was nf-cessary for payment of debts due from the deceased (6). It is trufe that under the English law an heir-at-law liiay dispose of all the Iknds that have descended to him, aild an executor or administrator may dispose of the whole personal effects of the deceased, and that they cannot be followed by creditors into the ^aands of the alienee. But the distinction between that and the MaLomedan law is that in the one case the whole of the realty or personalty is vested in the heir-at-law or the executor or administrator * as the cage may be, *^while, itf the other, the whole testate does not vest in any single ^^ hc'r, but in all the heirs in specific shares (see s. 23). Moreover their'L'>rd8hips say in another part of the judgment : '* At that time, if' Najmooddin were the legitimate son of the ^ deceased, —

(a') (1878) 4 Cal.<-tt02, L. R. 5 LA. 211.

lb) Pathumimahi v Vittil Ur^.maohabi (1902) 26 Mad. 734, 739.

a

ALIENATT,ON BEFORE PAYMENT OF DEBTS 25

and it has now b^en decided that he was, — he had the righif to convey his o\vn share of the inheritance, and was able to pass a good title to the alienee, notwithstanding any debts which ijaight be due fiom his deceased Father." The case of Wahidunnissa v. Shubrattun (c), the principle whe/e^f their »Lord ships thought was applicable to the case* before them, also related to the share of an heir. The share was seized and sold in execution of a decree against the heir, and it was there held that the e.]^ecution-pur- chaser had a right to iJold the share against* a creditor of the ancestor who iad obtained a decree for his debt before the seizift'e in execution. , , •

The rule may be explained by an illustration: A Mahomedan dies •leaving a widow and a son. The ^n sells his share ip a purchaser who has no no1.ice of the debts due from the deceastM. Subsequently a creditor of the deceased obtains a decree for pay- ment of his debt out of the estate of the deceased, and in execu- tion of the decree seeks to attach the share of the son in the hands of the purchaser. The share cannot be attached.

Clause (2) — This clause sets out the general rule of law relating to the doctrine of lis pendens ttealt with in the Transfer of Property Act, 1882, Sj»52. Itgs an essential condition o& the application of that doctrine that the property must be immove- able property. Morecwer, the creditor's decree must be against the estate, and not a merely personal decree (d). If these two conditions are satisfied, an alienation made by an heir dusing the pendency of the creditor's suit will not have tlie effect of passing a good title to the alienee as against the creditor or a purchaser in execution of the creditor's decre/.

27. Alienation by Ueir for payment of debts.— An

heir in possession of any part of the estate may apply the same >n payment of debts due from the deceased,

• . .

*0) (1870) 6 B. L. R»54.

(^d) Bazayet Ilosseini v. Dooli Cliund, supra, followed in Yasin Khan v. Muhammad Yaf Khan (1897) 19 All. 504. In Bhola Nath v. Naqhul-un- Nusa (1908) 26 All. 28, it is Stated that the decree in the latter case was a simple money-decree, a fact which was overlooked by tAe learned judges who decided that case. ^ •

«

1

' ^ (.

5J6 MAHOMEDAN LAW <

< <

and may for that purpose alienate the property /n his possession so as to pass a good titjc to the alienee as against the other heirs. * c

It was so held by tl^e High<Couit of Madras in a recent case

(d). Vhe ground of the decision was that if & sale in execution of

a decree obtained by a creditor against an heir in possession of

the estate is^binding upon other heirs thoujih they may not have

been parties to the" decree, it can make no difference whether the heir

Dtaets the demand by a honCi fide vohi*^(ary sale or t^e property is

brought to sale^in execution of a decree obtained against him. In

this respect the Court adopted the view held by the High Court^

c of Calcutta and Boml^ay (/) set out in s. 29 below. ^ ,

t.

* Bat it is doubtful whether a voluntary %ale by an heir in posses- sion of the estate for payment of debtsdue from the deceased will be held binding on the other heirs by the High Court of 'Allaha- bad, for it has been laid down by that Court that a sale in execution of a creditor's decree obtained only against such heirs as are in possession of the estate is not binding upon other heirs {g). If a sale in execution of a d^ecree made after full enquiry in open Court is not binding upon other heirs, it is probable that no greater effect will be given to a voluntary sale. But such ^a view would be opposed to the opinion expressed by the same Court in an earlier case (7i), which is quite in accord vt-ith the rule laid down in the present sectioL. t ^ ••

28. Suit by creditors against executor or adminis- < trator — If the estate is represented by an executor or administrator, a suit bj^* a creditor of the deceased ought to be instituted against t^e executor or admin- istrator as the case may be. , ^ '

* Thi? follows from the pro^yisions of s. 22 above. *

(i) Pathummahi v. Vittll UmmachaU (1902) 26 Mad. 734. (/) bavalam v. BUmaji (1895) 20 Bom. 338. ig) Jofri Begum v. Amir Muhammad (188fi) 7 All. 822. (h) Ilasan AUv. Mehdi Husain (1877) 1 All. 5f3, This case is not ceferred to htJafri Begam's c^e.

LIABILITY OF HEJRS FOR DEBTS 27

2SL ^uit by creditor against heirs— In other cases, the creditoi; may, aft^r distribution o£ 'the estate, sue any one or more of the heirs, and, before distribution, any heir or neii;s in possession of any pa»t oft the estate (z), '•subject *to the following provistons : •

(1) If the estate is distributed, and tjie suit is brought against ^bme only of the* heirs of the deceased, tte creditor i^ not entitled to a decree fi^r the whole amount of his debt, but pnlj; ibr an amount proportionate to the aggregate share of the

def^dants in the property (j), • •

>

(2) If the suit is brought against any one of tfie heirs in possession of jAiy part of the estate, the creditor is entitled, according to the decisions of the High Courts of Calcutta and Bombay, and, it would seem, also the High Court of Madras, to a decree against the estate to the extent of so much thereof as is in the possession of the defendant (k); and where such a decree is obtp^ined, it^will bind the other h^irs, though they were not parties to the suit (I), so as to pass a good titJe as against those heirs also to a purchaser of tliat portion of the estate at a sale in execution of*the decree (*/??.), iWess the decj;ee was obtained by consent {?z), or it is ptoved that the debt was not due (o).

(0 Avihashankar \, Say ad ^Z/ (?894) 19 Bom. 273 ; Dulhin y. Baij i\^a^^(1894) 2lt;al. 311. ' "*

0) Hamir Singii v. Zalua (1875) 1 All. 57; Plrthipal Singh v. Busaini Jan (1882) 4 Al'« 361. /

(*) DuUan V. Baij Nath (1894) 21 Cal. 311.

* (Z) Muttyjan v. Ahmed Ally (1882S 8 Cal. 370 ; KhnrshetUU v. Keso Vi'kayek (1887) 12 Bom. 101 ; JDavalara v. BTiimaji (1895) 20 Bom. 338 ; See also Pathuvimahi v. Vittil TImmachahi (1902) 26 -Mad. 734, 738.

(m) Muttyjan v. Ahmed Ally (1882) 8 Cal. 370 j and KhurshethlU V. Keso VinayeJi (1887) 12 Rom. 101.

(n) Assamathem, v. Roy Liitchmeeput Singh (1878) ^'Cal. 142, 155.

(t,) Khurslte^hihi v. Keso Vinayek (188?^ 12 Bom. 101, lOS.

28 MAHOMEDAN LAW

c

•i3ut according to the rulings of the .Allahabad High Court, " a decree, relative to his^, debts, passed ih a contentious or non-contentious suit, against only such heirs of a deceased Mahbmedan *debtor as* are in possession of the whole ou part of h^ estate^, [biiids the defendant to the extent of his full share, in the estate (p), but] does not bind the other heirs who, by reason. of absence or any other cause, are out of possession, so *as to convey to ^the auction -purchaser, ifi exe^cution of such a decree, the rights afid interests of suth. heirs as were not parties to the decree"; and they will be entitled to recover from the auction- purchaser possesision of their share in the propltrty sold, subject, however, to paymefit to the purchaser of their proportionate shar^ of the debts for which the decree was made (^), unless the circumstances are such as do not call for the exercise of this equity in favor of the purchaser (r).

Illustrations.

Calcutta ahd Bombay decisions.

(a^ A Mahomedan dies leaving ^ widow, ag daughter, and two «3isters. After his death a suit is brought by a creditor of the deceased against the widow and the daughter who are in possession of the whole estate, and a decree is passed •' against the assets of" the deceased, ffhe decree and the sale in execution thereof of th^property left by the dec|ased are binding on the sisters though they were not parties to the suit : JUuttyjan v. Ahmed Ally (l^^2) S^2i\. "^lO. • ,

(b) A Mahomedan woman, Khatiza, dies leaving a minor son and a daughter. After her death a suit i?^brought by a creditor of the deceased against " Khatiza, deceased, represented by her minor«son represented by his guardian " (,s), and a decree is madl in that^orm. The deceased

-•-

• •

(_??) Dallu JUal v, Eari Das f 1901) 23 All. 263, 265. •

(5-) Jafri Begam v. Amir Muhamjnad Khan (1885) 7 All. 822 ,• M^ihammad Aioais v. Har Sahai (1885) 7 All. 716 ; Hamir •Singh v, Zahiff, (1875) 1 All. 57. See also Muhammad Allahdad v. AIuhamma% Ismail (1888) 10 All. 289. . *

(r) Mfri Begam v. Amir Muhammad Khan (1885) 7 All^ 822 : see the third question referred to the Full Bench in the above case, and the form of it as amended bv the Full Bench {ih , p. 825).

(5) This form of suit, which was at one time common in the Mufassal ot Bombay, h^ been recently disapproved by the Bombay High Court.

• «

LIABILITY *0r HEIRS FOR DEBT§ 29

was (*ititle(? to a share in a Khoti Vatan^ and " the right, title, and int«r- est of I^hatiza " in tlfat share is sold in execution of the decree. The purcfiaser acquires a title unimpeachable bv the daughter, though ihi was not a party to the suit, nor to the subsequent proceedings in execution : Khurshcthj^l v. Keso t\nay%k ( 18S7 ) i2 Born. 101 (t). (No reference was made in the judgment to the Calcutti* case cited above, nor to any of the -^llahabud cases). , • •

(c) A Mahomedan dies leaving *a widow and other heirs. A suit is brought hy a creditor of the deceased against the widow alone who is in possession of a part of the estate. The other heirs are not Necessary par- ties, and the creditor is entitled to a decree not only against the share of the widow in tb^ estate, but the full amount of assets which have cori?e into her hands and which have not been applied in the discl^arge of the liabilities to which the estate may be subject at her nusband's death : Amir Dulhln v. Baij Nath (1894) 21 Cal. 311. «

(d) A Mahomedan dies leaving a widcw, a minor son and two daugh- ters. After his death a suit is brought by a mortgagee from the deceased against the son as represented by hij guardian and mother, claiming pos- session of the land mortgaged to him as owner under a gahan lahan clause in the mortgage. The widow is in possession of the estate, and a decree e,C'pa7te is made directing her to make over possession of the land to the mortgagee, and he is accordingly put in possession. The decree binds the daughters, though they were not parties to the suit, and they are not entitled to redeem the mortgage as against |he mortgagee or a purchaser from him : Davalava v. Bhiinaji (1896) 20 Bom. 338.

Allahabad Decisions.

(e) A creditor of a deceased Mahomedan obtains a decree upon a hypo- thecation bond '* for'recovery of his debt by enforcement of lien " against an heir of the dcxJeased in possessi'in of tie estate. The whole estate is sold in execution of the decree, and it is purchased >\y the decrefe-holder. Subsequently another 4ieir of the dec'tased, who was not a party to these proceedings, sues the decree-holder as purchaser for lecovery of his share in the estate. He is entitled to possesion of his share on payment of his proportionate shiAe of the debts wliich were paid off from the proceeds of the sale : Muhammad^ Awals v! Har Sahai (1885) 7 All. 716, following Jafre JBegam v. Amir Muhimmad (1885) 7 All. 822.

(f) A creditor of a deceased Mahomedan obtains a money-decree against an^ heir of the deceased in possession of the estate, and attaches cOttain immoveable property forming part of the estate in execution of the decree. The valut of the immoveable property exceeds the share of

_o ,

{f) Note that in this case •'* no part of the produce of the Khoti was in actual possession of either of the heirs of the deeeased.*^

3

30 • MAHOMEDAN I>AW

€

th^ defendant. The defendant is entitled to object to the attafthmen* and sale of the rights and interests of the other heirs wfeo were not p|rtieB to the Suit, upon the ground that, as regards theiy, he is in possession cff the property as trustee : 2?«Z;m Mat y. Ilari i?a6- '(1901) 23 All. 263. This follows from the decision set oufein ili. (e). f « ,

Conflict of decisions : JPriiiciple of Oalmtta rulings. — Though the view entertained bv the Hi^n Courts of ^Calcutta and Bombay is the same, it proceeds upon different grounds * altogether. , According to the Calcutta Court, a creditor's suit • is in the nature oT an administration-suft, and, as such, an heir ifi possession is bound to account for any assets ^at may have come /nt(j his^ hands, and to that extent is liable to pay the creditors, the residue, if any, being divided among the heirs. See the cases set oi^ in ills, (a) and (c). We do not th^k it ^^3 intended by this decision that a g,reditor's suit should be regarded as an administration-suit to all intents and purposes. Such a view may give rise to anomalous results, for it ha^ never been disputed that a creditor of a deceased Mahomedan may sue an heir in possession of any part of the estate, and it is establish- ed law that an administration-suit strictly so called must com- prise the whole estate of the deceased. Again it is an elementary proposition that there canifot be more than one administration- Buittin respect of the same estjyte, and tfeat the whole estate must be administered in one and the same suit ; but it has never been suggested that the pendency or determination of a suit by a creditor of a deceased Mahomedan against an heir in possession of a part only of an estate* is a fear to another *suit by an(5ther creditor against th^ same heir (^,), or against another heir in posses- sion of some other part of the estate. We may, therefore, take it that the High Court of Calcutta would regard a suit by a creditor as an administration-suit to the infbnt only that •other heirs not parties to the suit might be bound by the decrte to the extent of the estate in possession of the defeadant^eir. Thk theory ap- • pears ^ have been dictated, by two considerations, viz., (1) thf- grave injustice that might result if the creditor were t» be con- fined to the recovery of a fractional portion o^ his claim as held by the» Allahabad High Court, and (2) the rule of Mahomedan

(w) Muttinai^Y. Ahmed Ally (1882) 8 Oal. 370, 373.

LIABILITY) OF HEIRS FOR DEBT^ 31

>

lawithat fin individual heir cannot be said with strict propriety ,to represent hjs co-hfeirs (?;). The same Court has further endeavour- ed to strengthen its decision by the analogy, though incomplete, of the case of an exe(;butor de son tort (w), who could be suedacct>rd- ing to English law for an account of^the specific assets that have conae intc^his hands', though thero may be no legal representative.

Principle oj Boynhay rulings, — The principle underlying the decisions of the Bombay High Court is quite different. That Court follows the analogy of the Hindu law on 'the ground that '*the Mahomedan law is, if jf)os8ible, more strict in its recogniti<*i of the obligation to pay debts " than the Hindu law. Ailcording to that law, it is established that " when, in a [creditor's] suit,

^the debt is due from the father, and after hfs death the properly is brought to sale in execution of decree against the widow* yr some of the heirs of the [deceased], and the whole property is sold, then the heirs not brought on the record cannot be permitted to raise the objection that they were not bound by the sale simply because they were not parties to the record " {x). It may be

" observed that the Calcutta rulings set out in the illustrations above are not referred to in either of the Bombay cases.

Madras High Court. — The question now under consideration does not appear to have arisen in Madras. But in a recent case, the HTgh Court, in determining the question whether a sale by an heir in sole de^ facfo possession of the entire inheritance for payment of debts due from tlie deceased was binding upon the other heirs, relied upon the Bombay rulings set out in ^lls. (b) and (d), and held tbiit if a sale in execution of a decree obtained by a creditor against an heir in possession of the estate was binding upon other heirs though they wercjuot parties to the suit, there was no reason Vhy a 2;oZwn^^yy*sale by such an heir for the purpose aforesaid should n3t bind oth(y heirs though they were not parties to the sale i^/). But it may be noted that no reference was made jeither in the argument of counsel hr in the judgment *to the

>^llahab^d cases set out in ill. (e).

a

(r) Amir Dulhin v. Baij Nath 5i7i^/t (1894) 21 Cal. 311, 316, 3^17.

(M)) ih., 317.

(x) Davalaca v. Bhimaji (189r>) 20 Bom. 338, 344. Mh

(;y) PathnimiiaU v. Vitt'd UmmachaU (1902) 26 Mad. 734j 738-739.

32 * MAHOMEDAN lAw

c c

•

^rindfle of Allahabad rulings. — The reasoDin^ of * the Allajiabad High Court may thus be stateJ in tire w(^d^ of Mahmood J. : " To hold that a decree obtained by a creditor of the 5eceased against some of Ijis lieirs, viH l)ind also thpse heirs who were no parties to the suit, amounts to giving a judgment inter purtes, or rather a judgment in personam, the binding effect of a judgment in rem, which the lat^ limits to cases provided for by s. 41 of the Evidence Act. But our law warrants no such course, and ^e reason seems to me to Ije obvious. Mahomedan h^irs are independent owners of their specific shares, and if they take their shares subject to the charge of the debts ot the deceased, their liabilFcy is^in proportion to the extent of their shares. And once this is conceded, othe maxim res inter alios acta alteri nocere no'^ debet would apply without any such qualifications as ^ight pt^ssibly be made in the case of Hindu co-?ieirs in a joint family " (s). The meaning of the maxim i,s applied to the question now under consideration is that a judgment in a suit between A and B is not binding upon C, unless C is the privy either of A or B,

30. Recovery through Court of debts due to the deceased. — No Court shall pass a decree against a debtor o£ a deceased Mahomedan for payment of his debi to a person claimiiiguto be eiititled to the effects of the deceased or to any part thereof, except on the production, by the person so claiming, of a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or a certificate granted under the Succession Certifi- cate Act, 1889, or under Bombay Regulation VIII of 1827, and having the defe specified therein.

Explanation, — The word "^debt" jn this section includes any debt except rent^ revenue or pt^ofits pay- able in respect of landcUsed for agricultural *" purpose^

This section reproduces with slight verbal alterations tlie provi- sions of the Succession Certificate Act VII of 1889, s. 4, so far as they apply to Mahomedans. The Act extends to* the whole of

c

(z) Jafri J^egaiii v. Amir Munammad (1885) 7 All. 822, 842, 843,

C

•

•

RECOVERY Ot; DEBTS THROUGH COURT 33

• • >

Britiaii India, but^t is provided by s. 1, cl. 4, that a certificate shall not be granted ui^der the Act ^ith respect to any debt or security to which a ri^^ht can be established by probate or letters of admiifistration under the Indian buccession Act, 1865, or by proi)ateoia win to'which the Fjndu Wills Act, 1870, applies, or by letters of administration ^ith a copy of such a will annexed.

F rotate. — In cases to which the Indian Succession Act, 1865, applies — and the Act do^s not apply to Mahomedans — it is provi- ded by s. 187 that no right %s executor can be established in a^y Court of Justice, unless probate shall have been grantee^ of the will under which the right is claimed. These pr3visio'ns are not reproduced in the Probate and Administration Act which applies to Hahomedans, and it has been held that tfie omission was in*^^n- tional (a). The result is that an executor of a will of a deceased Mahomedan may establish his rfght in a Court of Justice without taking'out probate of the will (b). In the case, however, of debts due to the deceased, it is necessary, before the executor can be en- titled to a decree against a debtor of the deceased, that he should have obtained either a probate or a certificate under the Succession Certificate Act or Bombay Regulation Act VIII of 1827. These provisions are introduced by the Succession Certificate Act both to facilitate the collection of debts and to afford protection to parties paying debts to the representatives of deceased persons (c),

Letters of AUministration. — In cases to which the Indian SucoBssion Act aj)plies, it has bejn enacied by s. 190 that no right to any part of the property of a pe^^on who has died intestate can be established in any Court of Justice, unless letters of adminis- tration have first been granted by u Court of competent jurisdic- tion. That seoition has not boen incorporated in the Probate and Administration A(5t, and the heirs, therefore, of a deceased Mahomedan jnay sue to>recovsr the estate of the deceased without

(a) Shaj^k Jloosa v. Shaik Essa (1884) 8 Bom. 241, 255.

\}>) It may be noted that when there are several executors or administra- tors, the powers of all may, in the absence of any direction to the contrary in the will or grant of letters of administration, be exercised by any one of them who hag proved the will or taken out administration : see Probate and Administration Act, s. 9Js.

(jd) Similar provisions occurred in Act XXVII of 1860, which has been repealed by the Succession Certificate Act. **

3

34 MAHOMEDAN LAW

(

0 c

• ... > ^

a grant of letters of administration. But no derree will be made

r

in a s*uit by the heirs to recover debts due to, the deceased, unless they^ave obtained letters of administration or a certificate under the Succession Certificate A(ft or binder 'Bonibay Regulation VIII

of 1827. • *

Recovery of debts through Gourt. — It must be observed that the provisions of the Succession Certificate Act set out above apply only in* tho^e cases where a debt due to the deceased is sojight to be recovered through a Cour^ of law. A debtor of the deceased may pay his debt to the executor, though he^may not have obtained a Certiifcate or probate, and such payment will operate as a discharge to the debtor (see s. 22 above). Similarly the debtor m^ pay the debt to the heirs of the deceased, though they^may nf5t have obtained either a certificate or letters of administration. But payment of debt by a debtor it) one of several heirs does not discharge the debt as to all (c/), unless all the heirs join fin the receipt. If all the heirs do not so joiu, the debtor will be well advised not to pay the debt except to the person to whom a grant has been made either of a certificate or of letters of administra- tion.

I^may also be noted that where a debt is sought to be recovered by legal proceedings, it is not necessary that the plaintiff should have in readiness at the commencement of the proceedings the probate or letters of administration or the certificate referred to in the present section. oBut n^ decree will be passed unless the requisite documents are produced, and this is all that the section provides for. '^

Debt, — A suit to obtain a^share of family property from other members of the family is not a suit to recover a debt strictly fo

called (e), <

\ u

Bombay Regulation VIII of 1827. — This Regi-!,lation is in force throughout the Presidency of Bombay, and provides for tiie grant of a certificate to the heir, executor, or ** legal a*dminist'a-

__ , .

{cT) Pathummahi v. Vitt'd Uinmachahi (1902) 26 Mad.*734, 739. Com- pare Sitara:>i v. Sliridhar (1903) 27 Bom. 2-92, See also Ahinsa JBibi v. Abdid Kader (1001) 25 Mad. 2G. 39.

^ (0 Shal% 3Ioosa v. Shaih^^ssa (1884) 8 Bom. 241, 255.

1 »

ACTS* RELATING TJ) ADMINISTRATION 35

tor "J/), of a deceased person, recognizing the applicant as heir, or 'executor, or admin ^trator as the jase may be. The certificate confers no right to, the property, but only indicates the person who, i(ft the time *being, is m tlie legal management thereof (s..7,cl.^). -^ . • •

31% Enactments relating to administration.— In

matters not hereinbefore specifically enumerated, the administration of the estate of a deceased Mahomedan will be governed by the provisions of the following . Acts to tlfb extent to which they are severally ^applic- able to the case of Mahomedans, namelf , *

(1) Probate and Administration Act V of 188J- ; \2) Succession Certificate Act Til of 1889 ; • (3) Administrator- GeneraFs Act II of 1874 ; (4^ Curator's Act XIX of 1841 ; and (o) Bombay Eegulation Act YIII of 1827. Such of the provisions of the Administrator-General's Act as apply to Mahomedans come into operation when a Mahomedan dies leaving assets within the local limits of the ordinary original civil jurisdiction of the High Court^f Calcutta, Madras, or Bom- ^ bay, In such a case, tl^e Court ^lay, upon the application ^f any perso;i interested in such assets, direct the Administrator-General to apply for letters qf administration of the effects of the deceased, if the applicant Satisfies the Court that such grant is necessary for ths protection 9i the assets (s. i7). •

The Curator's Act was passed for the protection of property of deceased persons against wrongful possession in cases of succession. It enables a person claiming a right by succession to the property of a deceased, person to appl3» to *the Court of the district where any part of the jproperty is situate for relief by a summary suit either afteii^ actual dispossess^fon, or when forcible means of seizing possession»are apprehended, and provides for the appointnc^ent of a» Curatoj* to take charge of the property pending the determination •of the suit, if dai\ger is apprehended of misappropriation before

the suit is disposed of (ss. 1 and 5). i

«

(/) This expression hasoio reference to an '•administrator" within the meaning of the Probate and Administration Act. It possibly refers to a guardian of a minor, or a person occupying a similar posit ?i?n : Piirshotd^vi V. Ilunchhod (J871) 8 B.H.C., A.C. 152. ^

36

• ■ I

CHAPTER Y. •

Inheritance. *' -

A. G^.NERAL.

f c

32. No distinction between different kiiids of

properties. — There is no distinction, in the Mahome-

« dan law q£ inheritance, between moveable and

* * immoveable property, or between ancestral and

self-acquired property. ' f^

MacnaghWo, clS. I., 1.

38. Expectant^' right of an heir apparent. — The

rig)ft of an heir apparent or presui^ptive comes into existence for the first time on the death of the ances- tor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor (g),

IlUistrations,

{a) A has two sons, B {vnd C. B dies in the lifetime of A * leaving a son D. D is not entitled on the death of A to the share which B woufe have taken in the property 6f A, if B^had survived A.

^ (J>) A, who has a son B, makes a gift of the whole of his property to a

^ stranger. B cannot object to the gift, for he does 'not possess any inter-

est of any character in A's property during A's lifetime ; see Hasan All v. iVazo (1§89) 11 All. 456. ' * ^ . ^

(jc) A sues B, his step-mother, to recover certain ,T)roperty of which B is in possession. The suit is compromised, and it is agreed that B should? during her lifetime, continue to hold possession as malik (proprietor) without power of alienation, and that aftec her death the property should pass to A. A dies in the lifetime of iB, leaving a sister, C. Sub. sequently B makes a gift of the property^ to D. On the death of A, B's sister is not entitled to the property as agatnst D — Abdul WaMd v. Nnraii' *■ BiU (18«5) 11 Cal. 597, L. R. 12 1. A. 91. ^ ^

The Mahomedan law does not recognize any rigid of

representation. — In ill. (a), B does not take any interest in the

. — . »,

(^) Macnaghten. ch. I., 9; Abdnl Wahid v. fiuran Bihi (1885 ) 11 Cal. 697, L. K. 12 I. A.^1 ; Humeeda v. Budlun (1872) 17 W. R. 525 ; Hasan Ali V. Nazo (K89) 11 All. 456. ^

RIGHT OF REPRESENTATION

pTopert^ of A in A's lifetime which he could tran8mit to hi^ son IJ %y wf^y of inheritance, and this explains the rule that the Mahomedan law does not recogni^ any right of representation. The rule may thus ^e g<ated in ike words of Sir William Mae- naghten : ** The s^n [D] of a person deceased [B] shall not re- pfesent^such person [B] if he fB] died before his father [A]. He [D] sliall not stand in the ss^ne place as the deceased [B] would have done had he been living, but shall be excludeij from the in- « heritance, if he leave a paternal uncle [C], , .'. and the estate will go to the paternal uncle" i^h). For the same reason, a beques* or a gift by B of his expectant share as a possible heir of A ii a nullity according to Mahomedan law. For, under that law, " a mere possibility, such as the expectant right of an heir-apparent, is not regarded as a present yr vested interest, and cannot pass by%uc- cession, bequest or transfer so long as the right has not actually come into existence by the death of the present owner (i),-'

The Mahomedan laio does not recognize any reversionary or contingent interest expectant on the death of another. — This rule also follows from the principle laid down in the present section. Thus in ill. (b), B has no ^uch reversionary or contin- gent interest expectant on the death of A as would entitle him to object to the gift, or to bring a suit to set it aside, so long as A is alive, on the ground that it was procured by fraud or coercion. If such a suit is' brought, it will be open to the objection that B's expectant righJas a possible h«ir of i^, should he survive him, is a mere possibility which, under the Mahomedar? law, is not regarded as a present or vested interest. That law '* does not recognize any reversionary inheritance or contingent interest expectant on the death of anot]ier, and till that Seath occurs which by force of that law gives bi^^th to the right as heir in the person entvtled to it according to the ri?le of succession, he possesses no right at

.all 0)." " . . '

^_ .

(A) Macnaghten,'' ch, I., 9.

(i) Abdid,Wahidy. Nuran Bi?ji (1885)11 Gal. 597, 607, l! R. 12 I. A. yi.

O) PerStT&ight, 3., in Hasan AH \. Nazo (1889) ?1 All. 456, at p. 458. X »

38 MAHOMEDAN LAW

f

C c

The Mahomedan law does not recognize what is k'tlown^to English law as " vested remainder !' — This and thee two^' pre- ceding rules are mere corolla^ries of the fundamental principle set out in this section. In ill^(c)/ A is Qot o'entitled to a/iy such interest in the property ^n the lifetime of B as, can pass to his r heir on his death. In the case upon which ihis illustfation''is

based, their Lordships of the Privy Council said : " Further, [B] f is not merely to have possession of the estate during her life ; she •^ . is to be the mistress (or, as the District Judge has translated the petition, proprietor) of the taluka. Then comes tljLe question: what is tihe mterest which is given by the compromise to [A] ? To give [C] a title to the estate it mast be a vested interest which, on the death of [A], passed to [C], and is similar to a vested re«s>'*ainder under the English law. Such ^ interest in an estate does not seem to be recognized bv the Mahomedan law'* (/j). Their Lordships then proceeded to state : *'In Mussamut Hujneeda v, Mussamut Budlun (/), in which judgment was given by this Committee on the 26th March, 1872, the High Court of Calcutta had held that, by an arrangement between the plaintiff, a Maho- medan widow, and her son, an estate was vested in the plaintiff c for life, and, after her death, Vas to devolve on her son, by way of remaiVider, but their Lordships held that Che creation of such a ^ life estate, i.e.^ a lifeestate followed by a vested remainder, did not c seem to be consistent with Mahomedan usage, and there ought

to be very clear proof of so unusual a transaction. They thought ^ that expressions from which it mignt be inferred that the plaiiftiff was only to take a life interest might be explaii?ed on the supposi- ction that they have been used to import that the property .was to remain with the widow for the fii.U term of her life, and that the son as her heir would succeed to it zh\x her death. "Their Lord- ships tlhink this is the reasonable construction o^ the compromise in this case, and that it would be oppl)sed to Mahomedan law to hold th^t it created a vested hiterest in [A] which passed to [his]. heir on his death in the lifetime of [B].'* * ^

Remmciation of inheritance* in life-time of ancestor.—

-

{Jt) Abdul WahU v. Nuran Bihl (1885) 11 Cal. 597, 606, L. R. 12 I.A. 91 «(0 (1872) YI W.a. 526. ^

RENUNCiXtION of i:ftHERITAN(!;E 39

Alias a %on and two daughters. The daughters renounce, in,the lifetime of ^, their right of inheritance to A 's property in favour of the sou. Can the 'daughters, on»A's death, claim their share of the inheritance, ok» is Uie renyinci^tion binding upon them ?• The answer to the question is furnished,by the present section ; for if th« daugihters took no interest in»the property of A during A's lifetime?, they had nothing to renounce in favour of the son, and the renunciation therefore is a nullity. But what if the renuncia- tion is made for a consideration, as where a ,sum 'of money is paid by the son to the dau^iters in consideration of their renoun- cing their right to inheritance ? According to the opinion of the law officers in Khamirn Jan v. Jan Beehee (m), Ihe denunciation would still be a nullity for the same reasons that apply to a volTintary renunciation. Acting upon that •opinion, the Cour^ of first instance in that case decreed the daughters' claim, ^n appeal it was held by the Sudd^r Court that the receipt of money was not proved, and no opinion was expressed on the question whether a renunciation made for a consideration was binding under the Mahomedan law. But it has been recently held by the High Court of Madras that such a renunciation is valid and bind- ing upon the parties {n). After Referring to Khanum Jan's case, and to the absence of proof in that case that the considera- tion iponey was received by the daughters, the Court observed: ** Here, however, it is not denied that plaintiff received the money, and there is the I*lirther difference that the right had vested, but that provision ^?as made for tl^e motier by setting apart some property for her maintenance for her life, after »which the plaintiff accepted the money value of bis share. Prima facie there is nothllig illegal in the transaction, and in the absence of clear ' proof that it is forbidden by. Muhammadan law, we think plaintiff should be held tojDe bound by it." We are unable to foUaw the learned judges when they say that the right renounced by the ^plaintiff in the case before them had jested in the plainti^. The % facts appear to be that the plaintiff, in his mother's lifetime, re- nounced his right \o her property in consideration of Rs. 150

^ J

(w) (1827^*4 8. D. A. 210.

(/i) Kunhi Mamod v. Kunlii Aloidhi (1896) 19 Mad. 176.

c c

40 ' MAkOMEDAN LAW

r f

p^d to him by the mother. After her death, he "brought a r suit against his brother to recover his one-half sBare in the e^-ate of the mother. It is impossible to say upon 4hese facts that any right to the mother's property had vested rin the plaintiff in her lifetime. The basis on which^ the value of the plainti6's share was ascertained, and which is referred to in '"the judgment, rhas not, it is submitted, any bearing on the point. The opinion of the law officers in Khaniim JarCs case derives support from the statement of law e^et out at p. 37 ante, that the expectant right of an heir-apparent, being a mere possibility, cannot pass by " succes- sion, bequest or transfer." It is conceived that th^ renunciation of such a r%ht fbr a consideration is a *' transfer '' within the meaning of the passage above referred to, and it is ; therefore void urjder the Mahomedafi law. No doubt, the Mahomedan law ^does n^t *' forbid" it so as to render it "illegal," but it regards the transaction as a nullity. ©

Powers of alienation of a Mahomedan owner, — Since an heir-apparent does not take any vested interest in the property of the ancestor in his lifetime, it follows that the ancestor has the sole and absolute power of disposal over his property. And if he could not dispose of his' property by will or by death-bed gift ta the extent of more than a thir^ of whatremains after payment of his funeral expenses and debts, it is because of the specifi/) pro- visions of Mahomedan law in that behalf, <and not because hia heirs are entitled to any interest in the property in his lifetime. No doubt, a bequest or a death-befl gift exceeding the bequeath- able third may be validated by ^the consent of the heirs, but such consent must be given after the death of the testator, for the heirs are not entitled until then to any interest in his property. Here again we observe the operatioii of the same fundamental princi{3le which pervades all the rules dealt with in these

notes (o). ' t

e

c c

34. Vested inheritance. — A "vested inheritance'* is the share which vests in an heir at <the moment of the ancestor's death. If the heir dies before distribu-

(«) See EamnAU v. Nazo (1889) 11 All. 456, 459.

(

IMPEDIMENTS TO SCICCESSION* 41

tior), the share of the inheritance which has vested, in him'^wilUpass to his heirs at the time of his death.

A dies leaving a son D, and a daughter^ C. B dies before the e8tatt?of A is distributed, leaving a son D. In this (^ase on the death of A, two-thirds- of the inheritance vest in B, and one-^bird vests 2n C. If the estate of A is distributed after B's defath, the two-thirds which vested in B will be allot- ^

ted to his son D.

This follows from the rule enunciated in s. 23 > above. See ' Macnaghten, ch. I, 96 ; Ramsey's Moohumraudan Law of Inheii- , tance, ch, IX; Rurasey's Al Sirajiyyahf 43-44.

:> 1

35. Joint Family. — When the members of a Mahoniedan family live in commen^ality, they do not form a "joint fap^ily" in the sense in which tli^tJ^ expression is used with, regard to Hindus: and in Mahomedan law there is not, as there is in • Hindu law, any presumption that the acquisitions of the several members are made for the benefit of the family jointly {p),

36. Homicide as a bar to gliccession.— (I) Under > the Sunni law, a person who has caused the deatll of another, whether intentionally or by mistake, a negligence, or, accident, is debarred from succeeding ^ to the estate of that other. {2\ But homicide under

the Shiah law, is not a bar to success;[on unless the o death was caused intentiona'lly.

Rumsey's Al Sirajiyyah^ 14. .

Impedimenis to inlieritaj^ce, — The Sirajiyyah sets out four grounds of exclusion from inheritance, namely, (1) homicide, (2) •

slavery, (3) difference of religion, and (4) difference of allegiance, homicide, as an impediment to succession, is dealt witlp in the present Section. The second impediment was removed by the

ip) IlaUm JChan v. Gool Khan (1882) 8 Cal. 826 ; Suddurtoimessa Y. Majada Khatoon (1878) 3 Cal. 694 ; Ahdool Adood v. Mahomed Mahmil (1884) 10 Ca!. 562. See also Abdool Kadar v. r^apuhJiai (1898) 23 Bom, 188. .

c

42 MAkoMEDAN lAw

( f

enactment of Act V of 1843 abolishing slavery, and th& third by the provisions of Act XXI of 1850 (q). The 'bar of (^ifferetlce^ of allegiance, as contemplated by the Mahomedan system of jurisprudence (r), has no place in^Mahopiedan law as administered in British India. ^

Of all the disqualifications above enumerated, the etfect upon the person subject to them is absolute exclusion from the right of inheritance, and upon all others the same, as if the disqualified person were actu'ally dead [s). But the person incapable of is^heriting by reason of the above*^ disqualifications does not exclude others from inheritance (t). Thus if A dies leaving a son B, a grandson C by B, and a brother D, and if B has caused the death of A, B is ^tally excluded from inheritance, but he does •^ n^ exclude his son 0. The inheritance will devolve as if B were dead, so that C as grandson will succeed to the whole estate, D being a more remote heir.

B. — Hanafi Law of Inheritance.

[The principal works of authority on the Hanafi Law of Inheri- tance are the Sirajiyyah, composed by Shaikh Sirajuddin, and * the Sharifiyyah, which is a commentary on ths Sirajiyyah written by Sayyad Sharif. The Sirajiyyah is ^-referred to in this an I « subsequent chapters by the abbreviation Sir., and the references

< are to the pages of Mr. Rumsey's edition o^ th^ "Translation of

that work by Sir William Jones, as that edition is easily « procurafele.l

^ c

*^ ((?) Section 1 of the Act runs as follows : " So much of any law or usage now in force ... as inflicts on anjt person forfeiture of rights or property, or may be held in any way to impair or ^^ect any right of inheritance, by reason, of his or her renouncing, or having been excluded from the • communion of any religion . . , shall cgase to be erfforced as law in the

Courts of the East India Company, and ia the CtJurts establiehed by Eoyal ft Charter within the said territories.*' o

* • , c

(r) Difference of allegiance referred to here is " difference of country,

either actual, as between an alien enemy and an alien tributary, f>r

qualified, as between a fugitive and a tributary, oi» between two fugitive

enemies^ from two different states :*" Rumsey's Al Sirajiyyah, 14..

(*) Baillie's Moohummudan Law of Inheritance, p. 31.

(0 Rumsey's ^4.1 Sirajiyyah, 27-28. • C

T^REE CLASSEtS OF* HEIRS 43

3*1. "classes, of heirs. — There are three classes ©f heirs, nanvely, (I) Sharers, (2) liesiduaries, and (3) Distant Kindred. '

(1) *" Sharers'" are those/ who are entitled to a prescribod share of the inh'iiritance J

(2) '"Residuaries" are those who take no pre- tscribed share, but succeed to the "residue" after the claims of the sharers are satisfied ;

(3) " iTistarit Kindred ' are all those relations by* blood who are neither Sharers nor Residuarios (u).

"^ Sin 12-13. The first step in the distribution of the estate o§ a deceased Mahomedan, after payment of his funeral expenses, debi?^ and legacies, is to allot their respective shares to such of the rela^ ttons as^belong to the class of sharers and are entitled to a share. The next step is to divide the residue (if any) among such of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are nol entitled^to succeed so long as ther<^ is any heir belonging to the class of sharers or residuaries. But there is one case in'which the distant kindred will inherit with a sharei;', and that is where the sharer is th,e wife or husband of the deceased. Thus if a Mahomedan dies leaving a wife and iistant kindred, the wife as i?harer will take^herehare which is 1/4, and the remaining three-fourths will go to the distant kindred. And if a Mahomedan female dies leaving a husband and distant kindred, the husband as sharer will .^ke his share 1/2, and the other half will go to the distant kjndred.' To take a simple case : A dies leaving a mother, a son, and a daughter's son. The mother as sharer will take her share 1/6, and the son as residuary wilPtake th^ residue 6/6. The daughter's son, being one of the class of distant hindredy is not entitled toany share of the inheritance.

(?/) Abdvl Strang v. Pntee liibi (1902) 29 Cal. 738.

c c

44 MAHOMEDAN LAW ,

• The question as to which of the r-elationa belonging^to the class of sharers, or residuaries, or distant kindred, a^-e entitled to succeed to the inheritaDce depends ou the circumstances of each case. Thus if the snryivingfelatPonsbe* falfiier anda fatl^r's father, the father alone will jucceed^o the whole inl^eritance to the entire exclusion of the grandfather, though both o# them belong to the class of sharers. And if the surviving relations be a son and a son's son, the son alone will inherit the estate, and the son's son will not be entitled ttf any share of the inheritance, though both belong ^0 the class of residuaries. Similarfy, if the surviving relations belongt tQt th^ class of distant kindred, e.g,, a daughter's son, and a daughter's son's son, the former will succeed to the whole in^ieritance, it being^one of the rules of succession that the near'**' **==»=fBlation excludes the more remote. ^

38. Definitions. — In this part

(a) '' True grandfather " means a male ancestor between whom and the deceased no female intervenes.

c Thus the father's father*, father's father's father and his father

hor high soever are all true g^andfathe-s.

(6) " False grandfather " meaiis a male ancestor between whom and the deceased a ferfiale intervenes.

Thu3 the mother's father, mother's mother's father, mother's^ father's father, father's raotheyr's father, are«all false grandfathers.

(c) " True grandmother " means a female ancestor between whom am?! the deceased no false 2:raTidfather intervenes. e

t^ Thus the father's mother, mother's mother, fatter's mother'*

mother, father's father's mother, mother's mother's mother, are all true grandmothers. ^

{d) ** False grandmother '' means, a female ancestor between whom and *the deceased a false ^ grandfat^her intervenes.

c

c

• LEGAL SHARERS

45

Thus^the mother' a father's mother is a false grandmother. False* grandfa'thers and ^alse grandmothers belong to the class of distant kindred. >

{e) " Son's son how low s-oever " includes son's son, "son's* son's so^, and the son o£ a son how low soever, • * .

(/) " Son's daughter how low soev,er " Mncludes son's daughter, son's sor»'s daughter, and the daughter^ of a son how^ low soever.

39. Sharers. — After payment of funeral expenses, tl^bt^, and legacies, the first step in ^he distribution of the estate of a dect5ased Mahomedan is to ascertain^ which of the surviving relations belong to the class of Sharer^, and which again of these are entitled to a share of the inheritance, and, after this is done, to proceed to assign their respective shares to such of the Sharers as are, under the circumstances of the case, entitled to succeed to a share. The first column in the accompanying Table contains a list of Sharers; the second column specifies tlie circumstances which determine the righ^ of Sharers to inherit as such, and the third columfi sets out the shares which the law has allotted to the several S,harers.

5 Illustratic:is,

Note— T\i'Q italics in the following and other illustrations in this Chapter indicate the surviving relations. It will be observed that the sum total of the shares in all the following illu /tlations equals unity.

(a) Father

' Father' s father

Mother ...

Jlother^s mother

Two daughters .

Son's dauahter,,.

Father, Husjand, and Wife. ... 1/6

(as sharer because there are daughters)

(excluded by father) ^

1/6 (because there are daughters)

(excluded by mother) 2/3 ,

(excluded by daughters) *

(b) Ilushand Father ...

1/2

1/2 (as residuary)

46 MAHOMEDAN LAW <

n

(c) Fonr widows 1/4 (each taking \px^')

Father 3/4 (as residuary) » ' ,

<■ Mother.

((]) Mother "^/S ' * *

Father f ... ^/3 (as residuary).

(e) Mother 1/6 (because thele are two sisters)

Two sisters ... .... (Excluded by father)

Father 5/6 (as residuary)

(

Note that though* the sisters do not inherit at all. they affect the share rff the mother, and prevent her from takixg 1/3. Ttiis proceeds upon the principle that a person, though excluded from inheritan^le, may exclude others fA^hqlly qr partially (Sir. 28). In the present case the exclusion is partial, the mother taking 1/6 instead of 1/3, which latter share she would have taken if the deceased liad not left sisters.

(g)

Mother ^ /„

... 1/3

-

Sister

(exclude! by father)

Father

... 2/3

(as residuary)

Mother „.

... 1/6

(because there is a brother and also a sister)

Brother (f., c, or

u.)...

(excluded by father)

Sister (f., c, or u

.) ...

(excluded by father)

Father

... 5/r)

(as residuary)

Note — The mother takes 1/6, and not 1/3, whether there are two or more brothers, or two or more s?s>ters, or one brother and one sister, or two or more brothers and sisters. The brother and the sister, though they are excluded from inheritance by tK*e father, fj*revent the mother from taking the larger share 1/3. See note to ill. (e).

(h)

Husband

... 1/2 ' ■ .

Mother ...

.. 1/6 (= 1/3 of 1/2)

Father ...

c... 1/3 (as residuary)

Note — But for the hushand ayuh father, the mother in this case would have taken 1/3, as there are neither children nor brothers nor sisters. As .the deceased has left a husband a7id father, the mother is entitled only to one-third of what remains aft^^ the husband's share is allotted to him. The husband's share is 1/2, and what rfeA\ains is 1/2, and 1/3 of 1/2 is 1/6. The,reason of the rule is clear, for if the\nother took 1/3, the residue for the father would only be 1 — (1/2 + 1/.^) = 1/6, that is, half the share of the mother, while, as a general rule, the share oi a male is t^vice as much as that of a female of parallel grade (Sir. 22). For the f^se where the deceased leaves a widoio and father, see ill. (j), below.

(i) HiLsband 1/2

Mother' 1/3^ '

* Fathef s father ... 1/6 (as residuary)

Note — The wother takes 1/3, for the father's father does not reduce her share fromcone-third of the whole to one-third of the remainder after deducting the husband's share. •.

4

* >

(»

a ■»

r

ac.A.:isx.xs o:

• Sharers/

Circumstances under which heirs menti ci inherit as sliarers.

11

1. FATHER

2. TTt u E at-«' nf edrxHE R

k. h. s. .,.

i. HUSBAND ... <

4. WIFE (whether one or more not exceeding four).

5. MOTHER

if t'/iere i^ a child or child of a son h. 1. s.

in defa-Uit of father and nearer true grandfath circumstances as the father

if ttiere is a child or child of a son h. 1. s.

r C

» " ? " ^'

I-

if there is a child or child of a son h. 1. s.,o/-, ii sisters more than one in number, whether full, co

;

(i TRUE GRANDMOTHER, h. h. s. C whether one or more. )

DAUGH^TER... .^.

SON'S DAUGHTER h l.s.

o

C

c

C. (f., (a * SON'S DAUGHTER

(i>) SON'S SON'S DAUGHTER

9-10.

(/() Maternal— in tiefauit of mother and near

( tr.giandmother whether pa^. or ma

(J) Paternal — ,, ,, » m

in def£.uit otr'^v't r

in default ojf (l; son, (2) daughter^', (8) 1 higher son's daiighto:*-, and (5) eqiial son's son q

W^"e there is (only one daughter, or, in her abs' ton's daughti^r, the son's daughter h. 1. s., t; (1) son, (2) higher son's son, or (3) equal so s^n's daughters under similar circumstancebi sixth equally between them, whether theyj same or difrfirent fatht^rs. ^ |

in default Of d) son, (2) daughter*, and (3) son's si Where tli«re is on-|y one daughter, the sou's daughter wiil a and (2) son's son\. ^

in default <of (l) son, (2; daughters, (3) son's so^ {5) so/t's son's son.

Where there is oiyy one daughter, tr. ti lier absence', on son's so'-i's daugPater will take J in default of (1) son, (2) s

UTEBINE BROTHER

AND UTERINE SISTER

ir default of (l) child or son's child h. 1. s, * (2) father, and

(3) true grafidfathcr h. h. s.

ill 1st column

— 9-

* Shares.

lul uiiuui Miiiiiiir

re fire b ruth era or iguiue, or uteiinc.

in default of ,

her and in termed i- | ! true grandfather /

,. uiie takes >

r son's son, (4) »0 ... one takes

r only one hijiher t^, if ther^ be no ^f»« ; two or more I divide the one- j^i^ through th«^

^In default of (1) son,

1 mifi (iiiuglitors and

son'4 diiughter, tbt» ♦, and (3) ioid son's son.

^. on takes

cne takes

If there be uonij of these reUtious, the father •will succee 1 as a resiluary fTab. of Res., No.<3)

• If tlfere be no child or child of a son h. 1. s , i^ true grandfather will succeed as a residuary default of father or nearer true grandfath (Tab. of Res., No. 4)

if there

be

noneof

these

in other cases

i

^ : but when the mother ig entitled to the larger share ^, and the deceas- ed has also left (1 j father, and (2) wife or husband, the mother takes ^ not of the whole, but of the remain- der after deducting the wife's or husband's share.

i1

two or more

2 *

3. With the son she becomes a resi* duary (Tab. of Res., No. 1)

f equally among them whether they

are daugliters by the same or different

\ sons. With an equal son's bou she

become* a residuary (Tab. of Res.

No.2)

3» With the son '^ son she becomes a resid- uary ( Tab. of Ree., Ko. 2 )

5« Wiih the son's sin's son, she becomes residuary ( T»»f. of Rts., No. 2)

...one takes t^

^

^ gqually among them.

WIFE (whether one or more not exceeding four).

MOTHER . • ..

TRUE GRANDMOTHER., h. h. s. (whether one or more. )

r.

if there is a child or child of a son h. 1. is.,(/r, if

sisters more than one in number, whether full, co

7. DAUGHTER,

SON'S h l.s.

DAUGHTER

(a) Maternal— in ^lefauit Of mother and neari - tr.gi andmother whether pa^. or ma

(5) Paternal — ,, „ »»

in cief£.uit oi-

Si'U

c. 5 ., (rt ' SON'S DA.UGHTER «

in default of (1; son, (2) daughter^-, (3) hi higher son's dai^ghtc: ,v, and (5) equal son's son

W]f^e there is jonly one daughter, or, in her alisei ton's daughtib-, the son's daughter h. 1. s., ta (1) son, (2) higher son's son, or (3) equal sox s^n's daugh1j:ers under similar circumstances sixth equaJl.5^ between them, whether they same or difiorent fathers. ' |i|

in default of d) son, (2) daughters, ebcK 3) sow's son Where there is ou ly oue daughter, the son's daughter will t and (2) son'x son.

(0) SON'S SON'S DAUGHTER iH default <Of (1) son, (2j daughter.., (3) son's soi

' (b) son's son's son.

Wliere there is oiii^y one daughter, tr. Ca her absence on jBon's sou's daugliter will take J in default of (1) son, (i) s

0-1(1

. UTEhlNE BROTHER

AND

UTERINE SISTER

11. FULL SISTER

12. CONSANGUINE.SISTKR ..

ir default of (l) child or son's child h. L s. ^ (2) father, and (8) true graiid father h. h. s.

&

(

But if there is only one full sist-ji-, the consanj one or more) takes ^, if there J-^' none of t exclude her from taking as sharer.

^

I

■ e .110 brothers or jguiae, or utoiino...

. • •• (

in default of

^ler and intenncdi- i itrue grandfather /

,, one takes

son's son, (i)

II

...one takes

only one higher , if theyi be no

Sft ; two or more divide the one-

iBoa through the

-II default of (l)son,

... on takea

«in'a daugbter*. aud

I oii'i daughter, tbc> ' md (3) son's son's son.

.,, tiie takes

...Due takes

J

t I be none of these

4

in other cases

i

^ : but when the mother is entitled to the larger share JL and the deceas- ed haj also left (1 j father, and (2) wife or husband, the mother takes j^- not of the whole, but of the remain' (let' after deducting the wife's or husband's share.

i -j two or §. With the son she becomes a resi* 2 more duary (Tab. of Res., No. 1)

3 equally among them whether they

are dautjhters by the same or different

\ sons. With an equal son's ton shs

become* a residuary (Tab. of Res.

No.2)

3« Witli the son '^ son she becomes a resid- uary ( Tab. of Res., Ko. 2)

y. Wiih the son's sin's so3, she becomes residuary (Tnlf. of Rts., No. 2)

default of

// brother ...one take

default of

llsister.v^

!1 brother, and

),<(. brother ...one takes

sister (wlu'ilier m relations that

^ gqually among them.

f . With the full brother she becomes a residuary (Tab. gf Res., No. 5^

•^f. With the consanguine brother she becomes a residuary (Tab. of Res., No. 7) •

<?

c o

9 <9

•\

n , •

SHARERS

47

(j) ^-jVidow

, j/ot/lt't'y

Father

1/4

1/4 (=1/3 of 3/4)

1/2 (as rjsiduary)

iVotc -II this case, the* mother would have taken 1/3 but for the icidoic awrZ/aMrr, for there ar^ neither children 'hor brot^iera nor sisters. As the widc»v andjfather are among the surviving heirs, the mother is entitled to one-third of the remainuer after deducting the widow's share. The widow's share is 1/^, tlie remainder is 3/4, and the mother's share is 1/3 of 3/4, that is, 1/4. See ill. (h) above, and the note thereto.

(k) Widow

.y other . leather' ^father

... ;/3

... 5/12 (as residuary)

JVote — The mother takes 1/3, for the father's father does not reduce her share from one-third of the whole to one-thirdj of the remainder after (^ducting the widow's share. ^ '

True grandfv«tlier and true grandmother.

PU

(1) Fat/ter\s mother Mother's mother Father ...

(m) Father'* s mother Mother^s mother Father' 8 father

(being a true jf^^- grandmother, is excluded by father) • 1/6 (being a true viat. grandmother, is

not excluded by father) , 5/6 (as residuary)

\ } 1/6 (each taking 1/12) , 5/6 (as re?iduary)

jVb^<'— The father's mother ^s not exCxUded by the father's father, fo^ the latter is. not an intermediate^ but an equal, true grandfather.

(n) Father's father* ^:2iother (excluded by father's father)

Father's fatMr ... takes the whole as residuary

iVt'^6'— The father's father's motht> is excluded by the father's father for he is an intermediate true grandfather, the father's father's mother being related to the deceased through h^m.

(o) Father's mother's

mother ... ... 1/6

Father' s father ... '),6

(as residuary)

Note — The father's mother's 'mother (who is a true pat. grandmother) is not excludeji by the father's father (who is a true grandfather), for though he is nearer in degree, he is 7iot, in I'elation to her, an 'intermediate true grai'/ifather, as the father's mother's mother is not related to the dseeased through him, but through the father.

(p) Father' mother 1/6

Mother'^ mother's mother ...

Father's father ... ,« 5/6

(excluded by father's mother who is a nearer true grand- mother.) J

$as residuary)

48 MAHOMEDAN L^W *

Ol) Father's mother (excluded by father) (

Mother's mother's mother ... (excluded by fa<dier*s mother

• wh6is a nearer true grand-

• mother.)

Father ... m. •... * takfes the whole as residuary. •

Note. —The father's mother, though she is exclucied by the father, ex- cludes the mother's mother's mothef . This proceeds upon tlft rule •that one who is excluded may himself exclude others wholly or part^^Uy. See note to ill. (e) : in that case«the exclusion of the mother by the sisters was partial, for she did take a share, namely, 1/16. In the present case, however, the Ixclusion of the mother's mother's mother is entire. It need hardly be stated that if the deceased had not left the father's mother, •<*^e mother's mother's mother would have taken 1/6, for, being a true mat. grandmother, she is not excluded by the father. ^

« c

Daughters and Sons' daughters h. 1. s.

Ct) Father c ... ... 1/6 (as sharer)

Mother ..^ 1/6 ^ ^

as^ 3 soiu'' daughters of whom

* one is by one son and the •

other two by another son ... 2/8 (each taking 2/9)

Note. — The sons' daughters take ^^t^?' capita, and not j;«!?r stirpes. The two-thirds is not therefore divided into twa parts, one for the son's daughter by one son, and the other for the other two by another son, but it is divided into as many parts as there are sons' daughters irrespective of the number of sons through whom they are related to the deceased. The reason is that the Mahomedan law does not recognize any right of representation (see p. 36 ante^^ and the son's daughters do not inherit as representing their respective fathers, but in theircown right as grand-daughters of the deceas- ed. The same principle applies to the case of sons' sons, brothers sons, unclfes' sons, etc. see Table of Resi^uaries. t

(s) Father 1/6 (as sharer) ,

Mother 1/6

Daughter .. 1/2 ^^^-c^

4 sons' daughters 1/6 (each taking 1/24)

c c

JVo^e.'W-There being only one daughter, the sons' daughters are nbt entirely excluded fr8m inheritance but they take 1/6 which, together with the daughter's 1/2, makes up 2/3, the full portion oi daughters.

(t) Father 1/6 (as sharer) ^

Mother ^1/6

2 sons' daughters 2/3^

• Son's son's daughter ... (excluded by sons' daughters)

(u) Father ^ 1/6 (as shs^Ter)'

Mother 1/6 "^

^Son's daughter ... *... 1/2 ^

Son's son's daughter ... 1/6 *^

iVoie.~The rule of succession as between dSughte^s and sons' daughters applies, m the absence of daughters, as between higher sons' dauo-hters and loWer sons daughters (Sir. 18). There being only on^ sons' daughter in the present illustration, the sons' sons' daughter is not entirely excluded from inheritanqp, but she inherits 1/6 wh'ich, together with the son's ^ slaughter s ip. makes up 2/3, the full share of sons' daughters in the absence

♦ ♦

POCTUINE OF INCREASE. 49

%

!l

(v) Mother 1/6

2 full sisters.,.* 2/3 (each taking 1/3)

' C, Sister ,.. , (excluded by full sisters)

U. Sister (or u, brother) ... i;6 *

^) 2 /'ill sisters (or •. sisJers)., 2/3 (each taking 1/3)

2 n, sisters {or u. brothers).. 1/3 •(each taking 1/6) • *

(x)* FullWster ... , ... .. Ip

2 fi« sisters , 1/6 (each taking 1/12)

U. Brother ... 1/6 *

U, Sister 1/6

•

Note, — There being only one full sister, the consanguine sisters are not excluded from inheritance, but tiey inherit 1/6, which together with the^ sister's 1/2 maS^s up 2/3, the collective share of full sisters in the inheri- tance (Sir. 21). ^ •

Sir. 14-23. The principal points involvjd in the Table of Sjarft-s are explained in their proper place in*the notes appended to the illustrations. The*illnstrations must be carefully studied aS it is very difficult to understand the rules of succession without them, 'The principles underlying the rules of succession are set out in the notes on s. 41, below. It will be observed that the illustrations are so framed that the sum total of the shares does not exceed unity. For cases in which the total of the shares exceeds unity, see the next section. ,

The sharers are twelve in* number. • Of these there are six <^at inherit under certain circumstances as residuaries, namely, the father, the true granuiaither, the daughter, the son's daughter, the full sister, and i\\% consanguine sister. J^ee the list of Residuaries given in s, 41, below, and the notes on that 8ecti9n. •

40. .Doctrine of * increase'' — If it be found on as^*ign^ng their respective shfjres to the Sharers, that the total of the shares exceeds unity, the share of each Sharer is pi*op5)rtionately diminished by reduc- ing the fractional shares to a common denominator, and hicreasing the denominat6r so as to make it equal to*the sum of the numerators.

Illustrations. ,

(a) Husband * l/2ai3/6 reduced to 3/7

2 full sisters .„ ...• 2/3«^4/6 „ 4/7

7/6

•

50

c f

MAHOMEDAN LAW

Jjf^ote. — The sum total of 1/2 and 2/3 exceeds unity. The fTEctionsf are therefore reduced to a common denominator, which, i/i this case, is 6^ The sum of the numerators is 7, and the process consists in substityiting 7 for 6 as the denominator of the fractio»s 3/6 and 4/6. By so doing the total of the shares equals unity. The doctrine of "increase" is so-called because it is by increasing the denominate^- from 6 to 9 th|t the sum total of tjje shares is made to equal unity. ^

C^)

Husband Pull sister C. sister

1/2=3/6 reduced to 3/7* 1/2=3/6 ,. ^3/7

1/6=1/6 „ 1/7

7/6

1

^^(c) 2 full sisters .«

2 u. brothers (or u. sisters) Jfotksr ...c

.f. 2/3'<=4/6 reduced to 4/7 ... 1/3=2/6 T, 2/7

^. l/6=*l/6 „ 1/7

<>=:=^d) Husband „

2 full sisters. ., A/other •••

(e) Husband Full sister 2 u. sisters

(iX Husband ,..

2 Full sisters ... 2 u. sisters

(g) Husband

Full sister c...

2 M, sisters ,.,

Mother ti>

(h)i Husband

2 Full sisters, 2 u. sisters Mother ,

(>) Widow

2 c, sisters Mother

V

«..

7/6

... 1/2=3/6 ... 2)^=4/6 ... 1/6=1^6

8/6

... 1/2=3/6 ... 1/2=3/6 ... 1/3=2/6

8/6

... 1/2—3/6 ... ^/3=4/6 ... 1/3=2/6

97fe

... 1/2=3/6

... 1/2=3/6

... 1/3=^6

,.. 1/6=1/6

9/6

1/2=3/6 2/3=4/6 1/3=2/6 1/6=1/6

10/6

1/4=3/12 2/3=8/12 1/6=2/12

reduced to 3/^

4/8 1/8

reduced to 3/8 3/8 2/8

1

reduced to 3/9 4/9

»»

.2/9 1

f educed to 3j9 3/9

2/y

:. . 1/9

1

rdeuced to 3/10

4/10

2/10

,»c 1/10

reduced to 3/13 8/13 2/13

13/12

• DOCTRINE OF INCREASE.

51

0)

Husband Mother r.. 2 daughters ...

(k)

•

• Husband „^ Mother

Daughter .,.* StuCs daughter.

(1)

Widow ... Motht^ ,„ Full sister ,„

•(ft)

Widoio

2 full sisters ... 2 w, sisters ...

0

(n)

Widow 2 full sisters U. sister Mother

(o)

Husband Father

Mother „. 3 daughters ...

•

•

(P)

Widow 2 (ull sisters 2 u. sisters ... Mother

(q)

•

•

•

Wife *

2 daugliters ...

Fq^her

Mother

... 1/4=3/12 reduced to 3/13*

... l/6=2yl2 „ 2/13

..^. 2/3=8/12 „ 8/13

13/12 1 '

'... 1/4^3/12 reduced to 3/13

.. 1/6=2/ J 2 ,, 2/13

... 1/2=6/12 ., 6/13

... ;;6=2/12 „ 2/13

13/12 • 1

... 1/4=3/12 reduced to 3/13 ^

... 1/3=4/12 „ 4/13

... 1/2=6/12 ^ „. '6/13

1^/12 1

... 1/4=3/12 reduced to 3/15

... 2/3=8/12 „ 8/15 •

... 1/3=4/12 „ 4/15

15/12 1

... 1/4=3/12 reduced to 3/15

... 2/3=8/12 „ 8/16

1/6=2/12 „ 2/15 2|l5

1/6=2/12 • 15/12

1

... 1/4=3/12 reduced to 3/15

... 1/6=2/12 „ 2/15

... 1/6=2/12 „ 2/15

... 2/3=8/12 „ 8/15

* 15/12 „ , 1

•

t.. 1/4=^/12 reduced to 3/17

... 2/3=8/12 „ 8/17

... 1/3=4/12 „ 4/17

•„. 1/6=2/12 „ 2/17

17/12

I

1/8=3/24 reduced to 3/27

• 2/3=16/24 „ l«/27

1/6=4/24 „ 4/27

1/6=4/24 „ 4/27

•

27/24 •!

Sir. 29-30. For cases in which the total of tte shares is less

than unity, see s. 42 below. « • •

52 MAHOMEDAN LAW (

• *

41. Residuaries. — 1£ there are no Sharers, or if there are Sharers, but there is a iiesidue feft aftfer sati^jing their claims, the whole injieritance or the residue, as the case ufay *be, wil? devolve* upon Kesiduaries in the* order set forth m the ^nexf^d Table. •

Illustrations. Note. — The residue that remains after satisfying the sharers' fekims is indicated in the following illustrations thus ^ )

* * No. 1. Sons and daughters.

(a) ^on 2/3 / residuaries

* Daughter ... ^ 1/3 j as residual les. ^ ^

"^ote. — The daughter cannot inherit as a share* when there is a son. But if the heirs be a daughter and a son's son, the daughter as a sharer will take 1/2, and the son's son as a residuary will lake the residue 1/2.

(b) 2 sotis 4/7 C as residuaries, each son taking 2/7)

3 daughters ... 3/7 (as residuaries, each daughter taking 1/7)

(c) Widoio 1/8 (as sharer)

Daughter Z 1/3 of ( 7/8) = 7/24 ( ^ ^^ residuaries )

Note. — The residue after payment of the widow's share is 7/8.

(d) Husband 1/f (as sharer)

Mother 1/6 (as sharer) •

So7t ... 2/3 of (7/12) = 7/18 \ . ^esiduafies^ Daughter 1/3 of (7/12) = 7/36 \ ^^^ residuafic^)

Note — The residue in the aHove caje is 1 — (1/4 of l/i)=7/12. If^here were two*"sons and three daughters, each son would have taken 2/7 of 7/12= 1/6, and each daughter 1/7 of 7/12^J/12. ^

No. 2. Sons' sons h. L s. and sons' daughters h. 1. i'

(e") Son^s son ».* 2/3 I , j • \

^^ SoTi.da^hter ifs j (^b lesiduaries)

Note. — The son's daughter h. 1. s. cannot inherit as*^a sharer, but she can inherit as a residuary only, when there is an eqikl son's sou h. 1. s. Thus the son's daughter cannot succeed except as a residuary, w^en there is a son's soia. Similarly the son's sbn's daughter cannot inherit except a« 'i residuary when there is a son's son's son. •

(f) ^daughters *. ... ,,, 2/3 (as sharei%)

JSoti's son ... * 1/3 (as residuary)

So7i's soil's son, t. (excluded by soil's son)

Sottas son's dauahter , (excluded both by daughters

•^ and son's son. See Tab. of

< «. Sh., No. 8).

> >

• •

• »

» »

\

» »

f

TABLE OF ARRANGED IN Of

I — Descendants : 1. SON.

J ' Daughter takes as a residuary with son, the soi

< 2- SON'S SON h. 1. S. — the nearer in degree excluding t

Son's Daufi^hter h. I. S. takes as a residuary ^ she takes as a residuary with him provided she i the share of each son's daughter h. 1. s.

t A^otfi — When the son's daughter h. 1. s. becomco a

in degree with the loiaer son's son, she shares (

II. — Ascendants :

3 FATHER.

4 TRUE GRANDFATHER h. h. s.— the nearer in dr

if I. — Descendants of Father :

6. FULL BROTHER.

Full Sister takes as a residuary with full brot

6. FULL SISTER— In default of full brother and the ot! ( 1) a daughter or daughters, or (2) a son's da daughter or daughters h. 1. s.*

7 CONSANGUINE BROTHER t ^^

Consanguine Sister takes as a residuary \

8. CONSANGUINE SISTER-In default of cons, bro ^ if any, if there be (1) a daughter or daughte

daughter and a son's daughter or daughters h.

9 fULL BROTHER'S SCN h. 1. s.-the nearer in de

10. CONSANGUINE BROTHERS SON h. 1. s.-thc

IV. — Descendants of true Grandfather h. h. .<?. . 11. FULL PATERNAL UNCLE.

12. CONSANGUINE PATERNAL UNCLE. 13 FULL PATERNAL UNCLE S SON h. 1. s.-tht 1^ 14. CONSANGUINE PATERNAL UNCLE'S SON 1

MALE DESCENDANTS OF MORE REMOTE

uncles and their sons.

* ShariPvva. 7:

I >

HESIDUARIES R OF SUCCESSION.

ii ng a double portion, t'ore remote.

iqual son's son. If there be no eqiui^ son's son, but there is a lower son's son, ( Itot inherit as a sharer. In either case, each son's son h. 1. s. takes double

^

uary"T?ith a loioer son's son, and there are son^ daughters h. 1 <?. equal ly with them as if they were all of the same grade ; see ill. (m.)

excluding the mora remote.

t ithe brother taking a double portion.

■jsiduariesabovenamed, the full sister takes the residue, if any, if there be t !r or daughters h. I. s., or even if theye be (3) om daughter and a son's

(Consanguine brother, the brother taking a double portion.

imd the other residuaries abovenamed, the cons, sister takes the residue, ri ' (2) a son's daughter or daughters h. 1. s., or even if ther^ be (3) one

1 - ■ ., "

■excluding the more remote. J ^ *

rer in degree excluding the more remote.

rer in degree excluding the more remolc, •

S. — the nearer in degree excluding the more remote,

JTE GEANDFATHERS— in like order and manner as the •deceased's

.»

_ .^ _ . ^

t Sir. 9p. 24-25.

• •

• •

t» («

« •

' /

• «

^ESIDUARIES. 53

(g) 2 daughters* ,„ 2/3 (as sharers)

So7i\'ion ... 23 of ri,3)=2/9 » . , .

Son^s daughter..: 1/3 of (1/3)= 1;9 ) '^ i-esiduaries.

(h) Daughter .^ *... .». 1^ (as sharer)

^('»;.*o.* .. 2/3 of (l/2)=i/3 ) .

So7i's daughter 1/3 of (l/2)=l/6 j ^^ ^^itluaries. • • •

Ao/tf— There being only one daughter, the son's daughter would have taken 1/6 as sharer (see Tab. of Sh., No. 8)»if the deceased had not left a son's son. But as the son's son is one of the heirs, the son's daughter can only inherit as a residtiary with the son's son. ^ •

(i) Sun's daughter « ... 1/2 (as sharer) ^

Son's'^on's son , 1 2 (as residuary)

Note — In this ca^ the son's daughter is not precluded ^rom* inheriting as a sharer, for there^is none of those relations that precludes her from succeed- ing as a sharer (see Tab. of Sh., No. 8, 2nd coluAn). And it will bcseen •i'nef erring to the Table of Kesiduaries that the («ily case in which the son's daughter inherits as a re^^duary with the son's son's son (who is a lo^er son's son), is where she is precluded from succeeding as a sharer (see ill. (k) below.)

Q^ ^ Daughter 1/2 (as sharer)

Son's daughter 1/6 (as sharer. See Tab. of

Sh., No. 8). ^ny son's son ... f/B of (l/3)=2/9 * ^^^.^^^^,,i,,

iion 8 son's daughter ... 1/3 of (l/3)=J/9 )

A\)te. — There being only one daughter, the son's daughter is entitled to 1/6 as a sharer. Since she is not precluded from inheriting as a sharer, she does ^ not become a residuary with the son's son's son (who is a lower son's s^n).

(k) 2 dauglders ... ... 2/3 (as sharers)

'&.n's dau^lucr - V^ of (1/3) = 1/9 1 residuaries.

Sons sorCs son 2/3 of (1/3) c= 2/9 J

Note, — There be^g two daughters, the soil's daughter cannot inherit as a sha?er. She therefore inherits as a^residuary with the son's son's^on (who is a lower son's son). ^ •

(1) 2§on's claughtlrs ', Tnm'L l/Q /*' '^^'"''^

Sons son's .ton ^?^!n(ox , (^ as residuaries.

Soils son's daughter • ,1/3 of (1/3) = 1/9 )

• ^^Qfe —The son's daughters in this case do not inherit as residuar^ps with the son's son's son, i9i they a-e not precluded from inheriting as share s.

rm) 2 daughters 2/3 (as sharers)

So,i'.Km'sson ... 2/*of (1/3) = 1/6 1 , ,

^on\s daughter ) jh ^f (1/3) = 1/12 \ ^^ kesiduaries.

» Sons son's daughter ... ) J

• Note—l^exQ being two daughtefS, the son's daughter cannot injierit as a sharer. She *hercfore inherits as a residuary with the son's son's son (who is a lower son's son). The ion's son's daughter is entitled to inherit as a residuary with the son's son's son who is an equal son's «on in relation to her. Both these female relations inherit ^erefore as resid»aries with tjie son's son's sou? each taking 1/12. This illustration presents two peculiar

Cc • ♦

54 MAHOMEDAN LAW

e

features. The one is that the son's son's daughtef, though remoter in degree, shares with the son's daughter. The. other is ttiat the sOn's daughter succeeds as a resicluar/witli a lower son's son. If this were not so, (""jB son's son's daughter would inherit \o tl^p exclusion of the son's c daughter, a result directly oppf?)sed *to the printiiple that the Clearest of

blood must take first (Sir. 18-19).*

c No. 3. * Father. • * ^

;n) Father ^ ... l/fi^Cas sharer) *

Son (or son's son h.l.s.) ... 5/6 (as residuary)

c

^ Note.'—ReYQ the father inherits as a sharer.

1

c: (o) Mother 1 /3 (as sharer) ^

Father 2/3 (as residuary)

Note. — Here t'e fal her inherits as a residuary, as there is no child or

child of a son h.l.s. Se^Tab. of Sh., No, 1, •

(p) Daughter .• (as sharer) =^r^

e Father 1/6 (as sharer j^ 1/3 (as residuary) = 1/2

Note. — Here the father inherits both as a sharer and residuary. He inherits as a sharer, for there is a daughter ; and he inherits the residue 1/3 as a residuary, for there are neither sons nor son's tons h.l.s. The fatter may inherit hoth as a sharer and residuary. He inherits simply as a shartr when there is a son or son's son h.l.s. (see ill. (n) above). He inheiits simply as a residuary when there are neither children nor children of sons h.l.s. (see ill. (o) above). He is both a shaier and residuaiy when there are only daughters or son's daughters h.l.s., but no sons or son's sons h.l.s. as in the present illustrayon. The same remarks apply to the true • grandfather h.h.s. In fact, the father and the tiue grandfather are the only rela^'ons that may inherit in both opacities simultaneously.

e No 4. Tiue grandfather hh.s. -^

iVoi^.— Substitute "true grandfather" for "father" in ills, (n), (o) and (p). The true grandfather will succeed in the same capacity and will take the same share as the f^her in those illustrations.^

• c

*^ * Nos. 5^d 7. Brothers and sisters.

(q) Iltiithand ..^ ,. *l/2 (as sharer)

« Mother ^ ..1/6 (as shaifer)

^r^ther 2/3 of (1/3) = 2/9 ) ^^^,^^^^^^

Suter ! l/3^f (1/3) = l/eP^^^^*^*"^"^*

N&te. — The sister cannot inherit as a sharer whe|j theie is a brother, but she takes the residue with him. ^

1^0. 6 Full sisters with daughters and son's haughters. ,

(r) i>a?/^A<<'r (t>r son's daughter h.l.s.) 1/2 (as sharer) *

Full sister 1/2 (as residuary No. 6.) '

^ Brother' s soil,.. ... .... excluded by full sister who is a near- er residiiary. ,

Note. — The full sister inherits in three diflterent capacities: (1) as a sharer

under the circumstances set out in the Table of Sharers ; (2) as a residuary

< with full bfother, when thereHs a brother ; and, failing to inherit it either

o( these two capacities, (.3) as a residuary with daughters,* or sons' daughters

J

% ^

nESIDUARIBS

55

h. 1. 8., or one daughter and sons' daughters h. 1. s., provided there is no 'nearer raiduarj. Thus in the present illustration, the sister cannot inherit as a sharer, because there is a daughter (or son's daughter h. 1. 8.) And as there js no brother, she cannot inherit in the second of the three capacitfts efiumerated j%bove. She therefore takes the residue 1,2 as a residuary with ihe daughter (or son's daughtei), for thece is no^esiduary nfearer in degree. If this v?ere not so, the brother's son, who is a more remi)te relation, w^uld succeed in preference to her.

(s)

C)

00

2 Daughters ( or son's daugh- ters h. 1. s.)

Full sister ...

(V)

(w)

DaugT^i^r Son*s daughtei Fwl sister

Daughter SorCs danghti'v Mother ... Full sister

Daitghter •Soil's daughter. Husband Full sister

Daughter Soft's daughter Hvaband Mother ... Full sister

...>

2/3 (as sharers)

1/8 (as residuary N©. 6)

1/2 (as sharer)

1/6 (as sharer) ''

1/3 (as residuary No. 6) »

1/2 (as sharer)

1/6 (as sh3.rer) ^

1/6 (as sharer)

1/6 (as residuary No. 0)

1/2 (as sharer) 1/6 (as sharer) 1/4 (as sharer) 1/12 (as residuary No. C)

1/2 (as sharer)=6/12 reduced to 6/13 \IQ (AS8harer)=?/12 „ 2/13

1/4 (as sharer)=3/12 „ S/13

l/6,(as sharer)=2/12 „ 2/13

0

13/12

Note. — Here the only capacity in which the full sister could inherit is that of a residuary with the daughter and son's daughter. But a residuary succeeds to the residue (if any) after the claims of the sharers are satisfied and in the present case there is no residife. The sum total of the shares exceeds unity, and the case is one of •* Increase." . «

No. 8' Consanguine sisteis with dcv'^hters and sons' * daughters h. 1. s.

Note. — Consanguine sisters inherit as residuaries with daughters and sons' daughters in the absence of full duughters. Substitute " consanguine sistei" for " full sister" in ills, (r) to (w), and the shares of the several heirs will remain the same, the^consanguine sister taking the place of the full sister. Substitute also in the nole on ill. (r), "consanguine brother" for ''full brother."

Other Residuaries.

(X)

(y)

Full sister C, sister Mother ... Brothel'* s son

Widow „. Mother ... Pat, mtble

1/2 (as sharer) 1/6 (as sharer) 1/6 (as sharer) 1/6 (as residuary)

1/4 (as sharer) * l/l> (as sharer) 5/12 (as residuary)

56 MAHOMEDAN LAW

f

Gir. 18-21, and 23-26. Some of the import/Mit points involTed in the Table of Residuaries are explained in the notesrappended to the illustrations.

r . • * r f

Classification of Restauames, — All the residuaries are related to the deceased through a male. The uterine brotherrand sitter are related to the deceased througl? a female, that is, mother, and they do not find place in the list of residuaries. The Sirajiyyah divides residuaries Jn to three classes : (1) residuaries in their own flight : these are all males comprisedein tie list of Kesiduaries ; (2) residuaries in the right of another : these are the four female residuaries* nafiiely, the daughter as a residuary in the right of jthe son, the son's daughter h. 1. e. ss a residuary in the right of the son's s<fn h. 1. s., the full sister in the righf or the full brother, and the consanguine sister in the right of the consanguine brother ; and (3) residuaries with others, namely, the full sister and consanguine sister, when they inherit as residuaries with daughters and son's daughters h.l.s. Having regard, however, to the order of succession, residuaries may be divided into four classes, the first class comprising descendants of the deceased, the second class his ascendaLts, the third the descendants of the deceased's father, and the fourtji, the descendants of true grand- father h.h.s. This classification has been adopted in the Table of Residuaries, The division of Distant Kindred into four classes proceeds upon the same basis.

r r

Of rehiduaries ihatar^ primarily sharers,— It will be noted on referring to the Taj)lis of Sharers and Residuaries that there are six sharers who inherit under certain circumstances as Vesidua- ries. These are the father and tpe grandfather h. h. s., the daughter and son's daughter h.l.s., and the full sister and consan- guine sister. Of these only the father and true grandfather inherit in certain events both as sharers and residuaries (see ilj. (p) above, and the*note thereto). In fact they are the only relations that' can inherit at the same time in a double capacity. The other fourj who are^all females, inherit either as sharers or residuaries. The circumstances under which they inherit as sharers aVe set out in the Table of Shacers. They succeed as residuaries, and can succeed ill thatcapacfiy alone, when ttey are combined with male relations of

/ »

PRINCIPLES OF SUCCESSION. 57

>

parallel grade. Thus the daughter inherits as a sharer, when thfere

is rio £on. But when Inhere is a son, she inherits as a residuary,

and can inherit in that capacity alone : not that when there ^is a

son, she is excluded fi'om 'inheritance, but that in that event she

succeeds as a residnary, the presence of the ion merely altering the

character of her heirship. Similarly, the son's daughter h.l.s. can

inherit as a residuary alone, when there h an equal son's son. And

in like manner, the full sister and consanguine sister, can succeed

as residuaries alone, when they co-exist with the full brother and

consanguine brother respectively. The curious reader may ask^

why it is that the said four female relations are precl,udtxi from

inheriting as sharers when they exist with males of parallel grade ?

Th*^^ answer appears to be this — that if ^hey were allowed* to

inherit as sharers underv>those circumstances, it might be that t^o

residue would remain for the corresponding males ( all of whom

are resMuaries alone), that is to say, though the females would

have a share of the inheritance, the corresponding males, though

of equal grade, might have no share of the inheritance at all. To

take an example : A dies leaving a husband, a father, a mother,

a daughter, and a son. The husband will take J, the father ^^

and the mother 16. If the daughter were allowed to inherit as a

sharer, her share would ho J, and fhe total of all the shares being

1312, ao residue would remain for the ton. It is, it seems, to

maintain a residue for the males that the said females are precluded

from inheriting a^ sharers under the circumstances specified above.

The principle which regulates ^ the ^ncces*ion of full and consanguine sisters as residuaries with daughters and son's daughters h. 1. s. is explained in the notes appended to ill. (r).

Female residuaries, — There are two more points >o be noted in connection w^th female residuaries, which are stated below : -i ,

J

\l) The female .residuaries are four in number, of whom two

are descendants of the deceased, 'namely, the daughter atd^ son's

daughter h.l.s., and the othfr two are descendants of the deceased's

father, namely, the full sister and consanguine s.i^ter. -A^o other

female can inherit as a residuary.

e r

58 MAHOMEDAN ^.AW '

(2) All the four females inherit ae residuaries with cor- respondiDg males of parallel grade. But« none of *these except thecson's daughter h. 1. s. can succeed as a fesiduary with a male lower in degree than herself. *^, Thus the daughter cannol. succeed as a residuary with th5 son's son^ nor the sist^ with thf brotker's son ; but the son's daughter may inherit as 'a residuar)^ with the son's son or other lower' son^s son in the cases specified in the Table. For^ reasons, see ill. (m) and the note thereto.

=^ Principles of Succession among sharers and rg^iduaries. — It will "bavje be^n seen from the Tables of Starers and Residuaries that certain relations entirely exclude others from inheritance. This proceeds upon cptain principles, of which the following t^o ^e set out in the Sirajiyyah : c

(I). ^^ Whoever is related to the deceased through any person shall not inherit while that person is living,'^ — (^ir.27.) Thus the father excludes brothers and sisters. And since uterine brothers and sisters are related to the deceased through the mother, it must follow that they should be excluded by the mother. A reference, however, to the Table of Sharers will show that these relations are not excluded by the mother. The reason is that the mother, when she stands alone, is not entitled to the whole inherit- ance in one and the same capacity as the father would be if he stood alone, but partly as a sharer and partly by " Return '' (Sir.27; Sharifiyyah, 49). Thus if* the father be the soFe surviving heir, he will succeed to* the ybole inheritance as a residuary. But if the mother be the sole heir, she will take | as sharer ^ and the remaining f by Return (see s. 42, below). For this reason the mother does not exclude the* utarine brother and sister from inheriting with her. ,

c

(2), " The nearer in degree excludes the mor^ remote," — (Sir. 2Y). The exclusion of the true grandfather by the father, *of the true grandmother by the mother, of the son's son by the s6n, etc., r^sts upon this principle. These cases may also be referred to the first principle set out above,

, It will l^ave been seen tj\at the daughter, though she is nearer in^ degree, does not exclude the brother's son or his son. Thus

PlilNCIPLES OF SUCCESSION, 59

if the surviving relations be a daughter and a brother's son, tne daughter tak^s ^, and the brother's son takes the residue. The reason is that the daughter in this case -inherits as a .^harer^ ^nd the broth'^r*8 son as dk'\esidvary^ and^'ihe principle laid down above appl,ies on\y as between relations belonging ?o the same class of heirs. To this, however, there is an exception in the case of sons and son's sons h. I. s„ who, though reSiduaries, exclude certain sharers from inheritance ( see Tab. of Sh. Nos. 8-12 )o For if the sons and their male descendants did not exclude those sharers, it might happen in certain cases that no residue would be left for them, while, as will be seen presently, the son, and,-)in bis a\)sence, the son's son h. 1. s , are never liable to excliv^ion, and are always eL^*'led to some share or other. The ftbove principle may, therefore, be read thus :» *' Within the limits of each class of heiiss the nearer in degree excludes the more remote."

Again it will have been seen that the father, though nearer in degree, does not exclude the mother's mother or her mother ; nor does the mother exclude the father's father or his father. The reason is that the above principle is to be read with further limitations, which we shall proceed tQ enumerate. Those limi- tations are nowhere stated in the Sirajiyyah nor in any other work of authority, but they appear to have been tacitly recognized in the rules governing succession among Sharers and Residuaries.

There are six heirs that are always entitled to some participa- tion in the inheritance, and art in nO case liable to exclusion, namely, (1) son, (2) daughter, (3) fath«,v* (4) Ynother, (5) hus- band, and (6) wife (Sir. 27). These are the>most favoured heirs, and we shall call them, for brevity's sake, Primary Heiis. Next to these, there are four, namely, (1) son's son h. 1. s., (2) son's daughter h. 1. s.,o (3) true grandfather h. h. s., and (4)* true grandmother h, h. s. These four are the substitutes of the primary l^eirs and eaih of t|iem is entitled to 3ome portion of the i,nherit- ance in 'the absence of the corresponding primary heir. The substitutes of primary heirs are liable to be excluded by the corresponding, primary heirs, and by them alone, but by no*'others. Thus the son's son h. 1. e», is the son's substitute, and he is always entitled to some portion of the inheritance in the absence of thp son. The sou's daughter h, 1, s., is the daughter's substitute, ^nd

60 MAHOMEDAN LAW

sHe is always entitled to some portion of th« inheritance in the absence of the son and daughter. The true grandfAher is always entjtled to some share or other in the absence of the father, and he is liable to be excluded hf the father *or n'earer true grttndfather, but by no other heif. This explains why the moth^ does,, not exclude the father's father or his father? Similarly, the true grandmother is always efttitled to participate in the inheritance in the absence ef the mother, and she is liable to be excluded by the mother or nearer'true (grandmother, J^ut by no other heir. And 'this explains why the father does not exclude the mother's mother or her mo^ier^ This as well as the preceding case may be ex- plained with reference to th^ first principle set out in the Sirajiy- ya!), for the true grai*dfather h. h. s. is not related to the decr::?t?d tferough the mother, nor is the true grandtaother h. h. s. related to the deceased through the father. From this point of view, the second principle is to be read subject to the first, that is, the nearer relation excludes the more remote provided always the latter is related to the deceased throvgh the former 'j but neither of the two principles set out in the Sirajiyyah explains the exclusion of uterine brothers, or of full, consanofuine, and uterine sisters by the son's child h. 1. 8., or by the true grandfather h. h. s. {v). These ap- parently are cases of the exclusion of relations nearer in degree by more remote heirs. The explanation is to be sought for in the principle that the substitutes of primary heirs are always entitled to some portion of the inh6^ritanc« in the absence t)f the correspond- ing primary heirs, *and iii'.z involves as a necessary consequence that relations that -are excluded by the primary heir^ must be excluded by their substitutes. Hence it is that uterine brothers, and full, consanguine, and uterine Sisters, who are excluded by the son, daughter, and father, are also liable to e^ftjlusion by the son's son h. 1. 8., son's daughter h. 1. s., and the true grandfather

h h.s^(t^). The principles* governing succession may therefore te

^ •

(r) See Tab. of Sh. Noa. 9-12. .

(?«) It may here be stated that thoV?gh, according to the opinion of the Abu Hanifa, the true grandfather excludes the brothers and* sisters whether full or consanguine, he does not exclude thecn, according to the view of Abu Yusuf andjs Muhammad, but is put to his election as between pertain share« (Sir. 40-42). Bn?: the latter view is not generally adopted, and it is unnecessary to set put the same here,

PRINCIPLES OF SUCCESSION. 61

'1 'J

stated thus : Whoever is related to the deceased through any person

shaP. not inhent while that person is alive. Primary heirs are always entitled to some participation in thft inheritance and are not liable to b: excluded b^ any other heir3. The substitutes of the primary heirs are alwnys entitled to some shire or other in the inheritance in the abspnce of corresponding primary heirs, and they are excluded by them alone,' but by no other heirs; and, as a necessary consequence, all relations that are excluded, by primary heirs are also excluded by substitutes of those heirs. Subject to this the nearei' in degree, within the limits of each class of heirs, excludes the more remote.

Of the residue. — The son, being a residuary, is entitled to the rebiuue left after satisfying the claims of shurers. At the same time it has been seen abo^e, that a son is always entitled to som^ share of the inheritance. To enable the son to participate in the inheritance in all cases, it is necessary that some residue must always be left when the son is one of the surviving heirs, and in Fact this is so ; for the shares are so arranged and the rules of succession are so framed that when the son is one of the heirs, some residue invariably remains. And^ince, in the absence of the son, the son's son h. 1, s. is entitled to some participation in the inheritance, it will be found that in all cases where he is one of the surviving heirs some residue is always left, and the same is the case when the father, or, in his absence, the true grandfather h. h. s„ is one of* the heirs, for4he father is always entitled to some portion of the inheritance, and--^Q his absence, the true grandfather h. h. s. No case of " Increase " -can therefore take place when these residuaries are amongst the surviving heirs.

42. Doctrine of " Return."— If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts to the Sharers in p'loportion \o thsir sharers. Tliis right of reverter is technically called *' Return."

Exception. — Neither the husband nor wife is enti- tled to the '''return," ^o long as there is any other Sharer, or any relation belonging to tl2e class of Distant Kindred. '^

•\.

62

MAHOMEDAN LAW

• Illustrations.

(a) A Mahomedan dies leaving a widow as his sole hei^, The widow

will take 1/4 as sharer, and the remaining 3/4 \iy "return" : Mahomed

Arskad v. ISajlda Banoo {x) ^, Bafatun v. Bilaiti^hanum (y).

• • f

(b) Husband f. 1/2

Mother ... • ^1/2 (1/3 as shdrer and l/6^by RetKrn)

Note. — The husband is not entitled V> the *• return," as there «is another sharer, namely, the motheif The surplus 1/6 will therefore go to the mother by Return.

(c) Hushand Bangliter ...

(d) 5F^/f... ^ ... Sister (f , or c.)

(ti)

Wife

8oiCs daughter

( f ) Mother

Sort's davghter

1/4

3/4 (1/2 as sharer and Ifr by Return)

1/4

3/4 (1/2 as sharer and 1/4 by Return)

1/8 ^

7/8 (1/2 as sharer and 3/8 by Return)

r

1/6 increased to 1/4

1/2=3/6 „ 3/4

_____ •

4/6 1

i\We.— In this and in illustrations (g) to (k) it will be observed that neither the husband nor wife is among the surviving heirs. The rule in such a case is to reduce the fractional shares to a common denominator, and to decrease the denominator of those shares so as to make it equal to the sum of the numerators. Thus in the present illustration, the original shares when reduced to a common denominator, are 1/6 and .S/6. The totalTiL of the numerators is 1+3=^, and thef ultimate shares will therefore be 1/4 and 3/4 respectively. ^

(g) Father\s mother Mother's mother 2 daughters

(h) Mother Baughter Son's daughter

(i) Father's mother Mother's mother • Full sister ... C. sister

(a?) (1878) 3 Cal. 702. iy) (190^) 30 Cal. 683.

" \ 1/6 increased to 1/5 (each taking 1/10)

«:^

2/3=4/6 5/6

4^'> 1

... 1/6 increased to 1/5 1/2=3/6 „ 3/5

... 1/6 ,, 1/5

5/6

"■ \ 1/6 increased to 1/5

1/2=3/6 „ - 3/5

.« 1/6 „ 1/5

.5/6 * 1

RETURN.

.r

63

( j) Full sinter ,}i C sister ■« U. siste^

•••

•••

(k) Mother ^ Full ^ister U. brother

]/2=3/6 increased to 3/5

... )/G „ 1/6

... 1/6 „ 1/5

6/6 • 1

•

... 1/6 Httcreased to 1/5

1/2=3/6 „ » 3/5

... l/tJ „ 1/5

5/6

1

(1)

Husband

Mother

Daugk^v

m

1/4 , • =4/16

1/6 increased to 1/4 of (3/4)=3/16 =3/6 „ 3/4 of (3/4)=9/16

11/12

Note, — In this and in illustrations (m) to (r), it will be observed that eit^pJ* the husband or wife is one of the surviving ^jeirs. Since neither flie husband nor wife is entitled to the Return when there are other sharers, his or her share will remain ^e same, and the shares of other sharers wift be increased by reducing these shares to a common denominator, and then decreasing the denominator of' the original fractional shares so as to make it equal to the sum of the numerators, and multiplying the new fractional shares thus obtained by the residue after deducting the husband's or wife's share. Thus in the present illustration the shares of the mother and daughter, when reduced to a common denominator, are 1/6 and 3/6 respectively. The total of the numerators is 14-3=4, and the new fractional shares wnU thus be 1/4 and 3/4 respectively. The residue after deducting the husband's share is 3/4 and the ultimate shares of the mother and daughter will therefore be 1/4 of 3/4=3/16, and 3/4 of 3/4=9/16, respectively. j

(ni) Wife ... Mother ... Dmightc r

(n) Wife ... .♦.

Mother

2 ^n^s daughters

1/8

4/32

1/6

increased to

1/4 of

(7/8)=

= 7/32

=3,6

M

3 4 of

(7/8)=

»21/32

1/2=

19/24* * 1

... 1/8 -^ **■ ^ ' 5/40

... 1/6 increased to J/5 of (7/8)= 7'40

2/3=4/6 „ 4/5 of (7/8)=28/40

23/ffi4

(o) Huthand.,, U. brother U. sister...

(P)

Wife

U. brother

U, sister ..

1/6 increased to

1/6

5/6

1/4.

1/6 increased to

1/6

2/4 1/2 of (1/2)^1/4 1/2 of (l/2)=l/4

2/8 1/2 of (3/4)=3if8 1/2 of (3/4)=3/8

7/18

•\.

64

MAHOMEDAN LAW •

'w

Wife

Full sister C, sister,,.

•••

... 1/4 / 4/16 1/2=3/6 increased to 3/4 of (3/4)=9/16 .. 1/6 „ . 1/4 oF(3/4)=3/l6

c

«

^11/12 . ., ^ 1

(1)

Wife

U. brother TJ. sister ... Mother ...

<••

...•l/4 1,4

.- Ii6 increased to 1/3 of (?/4)=l//

... 1/6 „ • 1/3 of (3/4)=l/4

, ... 1/6 » „ l/3of (3/^)=ll4

c

9/12 1

(s)

IJnshand ... Daughter's soti

...

... 1/2 ^

... 1/2 /»

Note,—1\xe dapghter's son belongs to the class of distant kindred. The husband is not therefore entitled to the surplus by Return, and the same will go to the daughter'S(Son.

(t) Wife ... r.. ... 1/4 '^

c Brother^s daughter ... 3/4 c

Note,—1\\Q brother's daughter belongs to the class of distant kindre«l. The surplus will therefore go to her, as the wife is not entitled, to the Return. See Koonari Bxhi v. Balim Bihi (1882) 11 Cal. 14.

Sir. 37-40.

Residuaries for special cause, — A residuary for special cause is a person who inherits horn a freedman, by reason of the manu- mission of the latter (z). According to Mahomedan law proper, if a '^'manumitted slave dies without lestVing any residuary heir by relation, the manumittor is entitled to succeed to the icsidue, in preference to the right of the sharers to take the residue by Return ( Sir. 25-26). But residuaries for special cause have no pla(ie in Mahomedan law as administered by Courts in British India, since the abolition of slavery in 1843. ^

Husband and wife. — The rule of law as stated in the excep- tion as regards the right of the huskand and wife to the Return is different from that set out in the Sira-jiyyah. According to the latter authority, neither the husband n6r wife is entitled to the r^,turn in any case^ tot even if there b§ no otijer heir, and the surplus goes to the Public Treasury (Sir. 37). " Buttalthough that was the original rule, an equitable practice has prevailed in mod el n times of returning to the husband or ^o the wife in . i . ___^ — —

•^ (z) Rums*«y's Moohummudi-a Law of Inheritance p. 164.

' , EETUEN. 65

default of other siharers by blood and distant kindred," and this practice has beea adopted by onr Courts. See the cases cited in ill. (a), above,^ ^ • ' •

'^ Return^' distinguished from '''^ Increase '\ — The Return is the* convfcYse of Increase. The^case of Return takes place when the total»of the shares is less Uian -unitj ; the case of Increase, when the total is greater than unity. In the former case, the shares undergo a rateable ncrease ; in the Jatter, a rateable decrease. ,x * ,

Father and true grandfather. — When ther^ i^ only one sharer, he succeeds to the whole inheritance, — to his legal share as^aharer, and to the surplus by Return. When the father is "the sole surviving heir, h% succeeds to the whole inheritance as^a residuary^ for he cannot inherit as a sharer when there is no child or child of a son h. 1. s. (see Tab. of Sh., No. I), The same remarks apply to the case of the true grandfather, when he is the sole surviving heir.

43. Distant Kindred. — On failure of Sharers and Residuaries, the inheritance is divided amongst Dis- tant Kindred,

Sir. J.3. It will have been seen from the preceding section that a husband or wife, though a sharer, does not exclude distant kindred from inheritance, when he or she is the sole surviving heir. * See ills. ?s) and (t), s. 4S>.

44. Four cJasses of distant kindred. — Distant Kindred are divided into four classes, namely, (1) descendants of the deceased other than sharers and residuaries ; (2) ascendants of the deceased other than sharers and i«esiduaries ; (3) descendants of the deceased'?, parents other than sharers and residuaries; and (4) descendants of ascendants how high soever. The descendants of the deceased succeed in priority to the ascendants, the ascendants of the deceased in priority to the desc^dants of parents, and the de- scendants of parents in preference to the de,scendants of ascendants.

66 MAHOMED AN LAW

The following is a list of Distant Kifidred arranged, in the order of the classes in which' they succeed:

List of distant kindredi ^

If Descendants: r

1. Daughters' chiRlren and their descendants. r -

2. Children of sons* daughters h. 1. s., and tteir desceDdante.

* c ®

II. Ascendants: '

1. False grandfathers h. h. s.

2. Falsd graivimothers h. h. s.

III. Descendants of parents :^ ^ ''

1. f Full brothers' daughters and their descendants.

2. Coil, bibthers' daughters and their descendants.

3. Uterine brothers' children and their descendants.

J 4. Daughters of full brothers' sons h. 1. s., and their descendants.

5. Daughters of cf*n. brothers' sons h. 1. s., and their descendants^

6. Sisters' (f., c, or ut.) children and thfir descendants.

IV. Descendants of immediate grandparents (true

or false) : . '

1. Full pat. uncles' daughters and their descendants.

2. Con, pat. uncles' daughters and their descendants

3. Uterine pat. uncles and their children and their descendants.

4. Daughters of full pat. uncles' sons h. 1. s., and their descendants.

5. Daughters of con. pat. uncles' sons h. 1. s., and their descendants.

6. Pat. aunts (f ., c, or ut.) and their children and their descendants.

7. Mat. uncles and aunt^s and their children and their descendants.

^ <p.nd ,,

Descendants of remoter ancestors h. h. s. (ti^e or false).

Sir 44-46. There is this important point of difitinction between residuaries and distant kindred, tibat while all residuarie's are re- lated to the deceased througl^^ male^ all distaiat kindred are related to the deceased at least through one female.

The Sirajiyyah does not enumerate all relations belonging to the class ,of distant kindred, but mentions only some of them. Hence it was thought at one time that the "distaat kindred" were re- stricted to the specific relations mentioned in the Sirajiyyah. But this view has long since been rejected as erroneous, and \t was re- cently held by the High Court of Calcutta t^iat the sou of the gran(i- daughter of the brother of the grandfather of the deceased, though not specifically mentioned in the Sirajiyyah, belongs to the class of distanC kindred (a). That this should be so is clear from

t C L

[a) Ahdul Serang v. Putee BiU (1902) 29 Cal. 738. »

^ * FIRS^ CLASS OF DISTANT KINDRED *67

the definition of distant kindred, who^ are defined as o,U those re- lations by blood thjt a?e neither gharers nor residuaries. The list of distant kindred given abo\*e follows from the definition of distant kindred, read in conjuitction with a passage from the Sirajiyyih which, after enumei»tiDg*certftin relations belonging to the class of distant kindred, proceeds to say, **these^and all who are related to the deceased through them, are aVnong the distant i kindred" (p. 46). '

45. First class of distant kindred.-»-TRe succes- sion of Distant Kindred of the first class is governed by the following rules : •

Rule (1), The* nearer in degree excludes the more remote.

Sir. 47. Thus a daughter's son or a daughter's daughter is preferred to a son's daughter's daughter. The daughter's son and daughter's daughter are the nearest distant kindred .

Rule (2). Among claimants in the same degree of • relationship, the children of, sharers and residuaries are preferred to those of distant kindred.

Sir. 47, Thus a son's daughter's son, being a child of a sharer (son's daughter), succeeds in preference to a daughter's daughter's son, wjao is the cilild of a distant tinswoman (daughter's daughter).

Rule (3). Among claimants in the same degree of relationship, the share of the male claimant is double that of the female claimant, provided there is no difference of sex in the intermediate ancestors. *

Sir. 47-48, Thus if*the claimants be a daughter's son and a daughter's daughter, the former will take 2/3, and the latt»?r 1/3, fo^ the se^ of the intermediate ancestors ( i. e., daughters ), is the Ba)ne. Similarly, if a person leaves a daughter's son's son and a daughter's son's daughter, the former will take 2/3, and the latter 1/3. And, according to Abu Yusuf, the rule is tj^e same, even when the ancestors differ in their sexes» Thus if the c^imants be* a daughter's daughter's son and a daughter's so»'s daughter, t\ie sex of the inWmediate ancestors is not the same, it being female

1

• •

6'3c MAHOMEDAN LAW* ' C (

in one case, and male in the other. Even iri»such a cafe, accordmor to Abu Yusuf, the daughfer's daughter's sc^, being a male, will take twice as much as the daughter's son's daughter, for, According to this disciple of A6u Haniia^ regard is to be had, ip applying the rule of the double sha^e to the malfi, to the sexes of the claimants^ and not to the sexes of the intermediate ancestoi^s through whtfm ^hey respectively claim, According to Abu , Muhummed, however, regard should l^e had, in applying that rule, to the ^sexes of the ancestors, and not to the sexe% of the claim- ants (Sir. 48). '"As the opinion of Abu Muhummed is followed by,]the Hanafi Sunni? in India in preference to that of Abu Yusuf, it becomes necessary to consider the same.

Rule {4), Where the mtermediate ancestors differ in their sexes, the inheritance, according to Abu Muhummed, is to be distributed according to the following rules {b): —

(a) The simplest case is where there are only two claimants, one claiming through one line of ancestors, and the of her claiming through another line. In such a case, the ruW is to stop at the first line of descent in which the sexes of the interqiediate ancestors differ, and to assign to the male ancestor a portion double that of the female ancestor. The share of tlje male ancestor will descend to the claimant who claims ^through him, ^and the* share of the female ancestor will descend to the claimant who claims through her, irrespective of the sexes of the claimants.

Illustration, ^ A Mahomedan dies leaving a daughter's son's daughter and a daughter's daughter's son, as shown in ttte following table : ^ '■■

Propositus. o

1st line daughter daughter

2nd line son daughter

Srd line daughter son

(V) Sir. 48-50.

FIRST CLAS^ OF DISTANT KINDRED 69

In this case, the Vncestors first differ in their sexes in the second line • o& descent, a»d it is at tljis point that the rule of a double portion to the male is to be applied. This is done by assigning 2/3 to the daughter's son, and 1/3 to the djAighter's daughter. The 2/3 of the daughtdt's son will go to her. daughter, and the 1/3 of %the daughter's daughter will go to hQf son. fhus we have •

daug4iter's son's daughter ...2/3 * daughter's daughter's sou «...l/3

According to Abu Yusuf, the shares would be 1/3 and 2/3^espectively.

(b) The next case is when there are three o^' more claimants, each claiming through a, different line of ancestors. Here again, the rule is to stop at the first line in which the sexes of the inter- mediate ancestors (liffer, and to assign to each maje ancestor a portion double that of each female ancestor. But in this case, the individual share of each ancestor does not descend to his or her posterity as in the preceding case, but the collective share of all the male ancestors is to be divided among all the descendants claiming through them, and the collective share of tHe female ancestors is to be divided among theii' descendants, accortling to th^. rule, as between claimants in the same group, of a double portion to the male.

> * Illustrations.*

(a) A Itfahomedan dies leaving a daughtgji,-; son's diAighter, a daughter's daughter's son, and i, daughter's daughter's daughter, as shown in the following table :

Propositiis,

daughter

• I son

daughter

daughter

I daughter

i

son

daughter

I daughter

I daughter

In this case, the ancestors differ in their sexes in the second line of descent. In that line we b«ve one male and two females. The rule of the double share to the male is to be applied, firs^ in this line of descent, so that \^e have

70 MAHOMEDAN LAW

f

i

* daughter's son 1/2 /

daughter's daughter .. 1/4 J .,„ j (collective share of daughter's daughter ...1/4 j ( female ancestors).

The daughter's son standS alone, and th^refcre his share descends to his daughter. The two fem&je ancestors, namelj', the fraughters' daughters, form a groupyiand their collective share is 1/2, which vrill be divided between their descendants, 'chat is, the dajighter's daughter's son and daughter's daughter's daughter, in the proportion again ( f two to one, the former taking 2/3x1/2=1/3, and the latter 1/3x1/2=1/6. Thus

we have «

« daughter's son's daughter ^, ...1/2=3/6 c daughter's daughter's son ...1/3=2/6

^ daughter's daughter's daughter .. 1/6 = 1/ J

According to Abu Yusuf, the shares would be 1/4, 1/2, and 1/4 respectively. r

(b) A Mahomedan dieS' leaving a daughter's daughter's son, a daughter's seal's son, and a daughter's son's daughter, as sh6wn in the following table :

Propositus.

I i I

daughter daughter daughter

i I i

daughter son son

I I I

son « son daughter

Indbhe preceding illustration, \ie had on^ male and two females in the first line in which the sexes differed. In the present case, we have one

a

female and two males in that line.

First, ascertain the first line in which the sexes differ. Here again that line is the second line of descett. , * c

Next, consider tfte relatidlt-fc^ji that line as so many children of the deceased, and determine their shares upon that footing. The shares therefore will be : daughters daughter, 1/5, and each daughter's son, 2/5, the two together taking 4/5. Assign the 1/5 of daughter's daughter to her.son.

Lastly, divide the 4/5 of the two male ancestors between their descend- ants as if they were children of one ancestor, assigning a double portion to the finale descendant. Thu^the daughter's son's, son t^kes 2/3x4/5= 8/15, and the daughter's son's daughter l/3x4/5=--4/15. Thus w&have

daughter's daughter's son ... 1/5=3/15

* daughter's son's son 8/15

daughter's son's daughter ... ,..4/15

According to *^Abu Yusuf, the shares would be 2/5, 2/5, and 1/5 respectively.

FIRST^ CLASS OF DISTANT KINDRED 71

t

(c) A MfihomedaPv dies 'leaving a daughter's son's son, a daughtej'* son's daughter, a daughter's daughter's son, and a daughter's daughter's daughter, as sBown in the following table :

I , Propositus. • . * 0

I I % I I

daughter daughter daughter* daughter

•

. son * son daughter daughter

' , I • ^ .1,

son daughter son daugiiter

Here the ancestors first diflfer in their sexes in the second line, and in that line we have two males and two females. The collective share of the two males ^ is 4/6, and that of the two females is 2/6. The 4/6 of the daughters' sons will be divided between the daughter's son's son and th'> daughter's son's daughter, the former taking 2/3 x 4/6=8/18, and the latter 1/3 x 4/6=4/18. The 2/6 of the daughter's daughter will be divided between the daughter's daughter's son and the dau^ter's daughter's daughter, so that the former will take 2/3 x 2/6=1/18, and the latter 1/3 x 2/6=2/18. Thus we have •

• daughter's son's son 8/18

daughter's son's daughter 4/18

daughter's daughter's son 4/18

daughter's daughter's daughter .„ 2/18

According to Abu Yusuf, the shares would be 2/6, 1/6, 2/6, and 1/6 respectively.

When a person dies leaving descendants in the fourth and remoter generations, **the*course indicated in the [above rul?] as to the first line in which the sexes differ, is to be followed equally in any lower line ; but the descendants of any individual or group^ once separated must be kept» separate throughout ; in other woids, they must not be united in a gro'ip with those of any other individual* or group " (c).

(c) The last case is when there are two or more claimants claiming through the same intermediate ancestor. In such a case, there is this further rul e to be applied, namely, to count for each such an- cestor, if male,* as many maleS as there are clai'aaants claiming through him, and, if female, as many females as there are claimants claiming through her,

irrespective* of the sexes of the claimants.

*

(c) Kumsey's Moohummndan Law of Irjieritance, pp. 68-6?.

72

MAHOMEDAN LAW «

Illustration. Propositus.

daughter son

2 sons

daughter

I

daughter

son

2 daughters

Here the ancestors first differ in their sexes in the second line, and in that ^line we have one male, and one female. *^rhe daughter's son will count as two males, by reason of his having two descendants among the claimant?, aftd tits daughter's daughter will count as three females, by- reason of her having three descendants. Thus we have

daughter's son ',„ daughter's daughter

4^7

3/7

The 4/7 of the daughter's son will go to his two sons. The 3^7 of the daughter's daughter will go to her descendants, the son* taking 2,'-tx3/7 =6/28, and each daughter taking 1/4 x 3/7=3,28. Thus we have

daughter's son's sods ... daughter's daughter's son ... daughter's daughter's daughters

4/7=16/28 (each 8/28) 6/28 6 28 (each 3/28)

According to Abu Yusuf, the shares would be as follows :

c '^ c

each daughter's son's son ^ ... 2/8

daughter's daughter's son ... ... 2,8 a

each daughter's daughter's daughter... 1,8

When the deceased leaves descendants in the fourth and remoter generations, the process iridic ated in the above rule*^is to

be appHed as often as there uxay be occasion to group the sexes.

•

46. Second class of distant kindred.— In default

of Distant Kindred of the first class, the inheritance devdlves upon Distant Kindred of the second class in the order enumerated below :

2.

3. 4..

Mother's father.

( Father's mother's father, 2/3.

\ Mother's mother's fatl^er, 1/3.

( Mother's father's father, 2/3.

( Mother's father's mother, 1/?.

*• other false ancfetors in the fourth and remoter degree.

t

SECONp CLASS OF DISTANT KINDRED 73

The omer enu'merat(M above follows from the rules for tJi>e .sufcession of distant kindred of the second class, which are nearly the same as those set f6rth in the preceding section in respect to the first class (Sir. ^61-52). There is* no difference in* respect of this class of distant kindred betweenHhe system of Abu Muhumraed

and that (H Abu Yusuf. •

•

The rrfother's father is the oRly false ancestor in the second de- gree, and, being the nearest, excludes all other false ancestors. See s. 45, Rule (1). • '

In the third degree, there are four false ancestors, namely, (1) father's mother's father, (2) mother's mother's fatl^r, ^3) mother's father's father, and (4) mother's father's ijiother. Of these, the first two, being related to the deceased Jihrough sharers,— ^the father's mother and nTother's mother are sharers, — exclude t4ie other two who are related through the mother's father, a distant kinsman. Se« s. 45, Rule (2). The father's mother's father, being related to the deceased through a male (?. ^,, father) takes double the portion of the mother's mother's father, who is related through a female (z. e., mother), though both these ancestors are of the same sex ; the rule being that when the sexes of the ancestors differ, 2/3 go to the father's side, and 1/3 to the mother's side. Either of these ancestors, 'Standing alone, succeeds to the ^hole inheritihice.

In default of mother's father, father's mother's father, and motber's mother's father, the »mother's father's father and the mother's father's mother will succeed ''io the inneritance, the for- mer taki[ng 2/3, and the latter 1/3, according the third Rule set forth in the preceding section. Either of them, standing alone, succeeds to the whole inheritance.

It is not necessary V) pursue the subject of the succession of false ancestjDrs any further, as it can rarely happen that a person Should die leaving*ancestors in the fourth or higher degree*.

47. Third class of distant kindred.— The succes- sion o£ Distant Kindred of the third class is govern- ed, according to Abil Muhummed, by the following rules: — » > ,

>

)

f

74 ' MAHOMEDAN LAW ^

•^ (1) Among claimants in the ?;am^* degree of re- lationship, the descendants of full brothers are pre*' ferred to those of consanguine brothers or sisters.

The "descendants *of uterine •br^.hers and, sisters are not liable to be excitided from inheritance by des- cendants either of full or consanguine brothers* or sisters. ^ • /i «

Sir. 54. §ince a full brother excludes consanguine brothers and sisters, his descendants likewise exclude descendants of con- * sanguine brothers and 'sisters.

Bnt neither a consanguine brother nor a consanguine sister is exoiluded by &fiillsisfer ; therefore, the descendants of consanguine brothers and sisters are not excluded by c^escendants of full sisters. Thus if there be a full sister's daughter's daughter and a consanguine brother's daughter's son, the former does not exclude the latter ; and the full sister's 1/2 as sharer will go to her descendants, and the consanguine brother's 1/2 as residuary will go to his descendants (d).

And since neither brothers nor sisters, full or consanguine, ex- clude uterine brothers or sisters, the descendants of the former do

not exclude those of the latter.

c r

(2) The descendants of maternal relations •divide equally among them the primary share of these re- lations, without any ];^gard to differenceoof sex. ^

•• • •

^£^( St rat ions. ^

(a) A Mahomedaa dies leaving 2 sons and 3 daughters of a uierine bro- ther, and 3 sons and 4 daughters of a uterine sister. Here the total num- ber of claimants being 12, each claimant will take 1/12.

•

(b) A Mahomedan dies leaving relations enunjerated in the above illus- tration, and a daughter of a full brother. Here the primary share of the uterine brother and sister is 1/3 ^see Tab. of Sh., no. 9), and this will be cK- vided equally among their descendants, each taking 1/12 of l/3=f/36. TU^ primary share of the brother as a residuary is 2/3, anA this will daughter . ^

— . . c

((l) See E^imsey's Aloohumn^udan Law of Inheritance, p. 67.

«

< •

{

THIRD I;LASS of DISTANT KINDRED 75

(c) A Mahomedan\dies leaving 2 sons and 3 daughters of a uterine > brotljer, and a daughter of a full brother. Here the primary share of the uterine broSier is 1 /6 (sfee Tab. of Sh., no, 9), and this will be divided among his five descendant^ in equal shares, exch taking 1/5 of Jl/ 6=1/30. The prima/y share of tfie brother as a residuary is 5/6, and this will go to his daughter. ^

(3) Jn other respects, tKe^rules for the succession of distant kindred of this'^ class are similar to those for the succession of the first class. ^

9

Illustrations, (a) A Mahomedan dies leaving a daughter of a full brother, a eon and a daughter of a full sister, a daughter of a consanguine^^ brother, a son and a daughter of a consanguine sister, a daughter of a uterine brother, and a son and a daughter of a uterine sister (se^ Sir. 54), In this cc«e, the children of the consanguine brother and sister will be excluded from inheritance by the daughter of the full brother [see rule (1) above]. The propertji will therefore be divided among the children of the full and uterine brothers' and sisters. The primary share of the uterine brother and sister as sharers is 1/3, and this will be divided equally among their tbree descendants, each takinij 1/3. The primary share of the full brother and sister as residuaries is 2/3, and this will be divided among their descendants according to s. 45, Rule (4), as shown in the following table : .->

6hmmo7i a/westor ->

I

full brother full sister 2^^'opositus

slaughter 1/3 son 2/9 daughter 1/9 , ->

Here the first line in which the sexes of the ancestors differ is the first line of descent. The full sister, having two descendants, will count as two females. Therefore the full brother's share is 1/2 of 2/3r=l/3, and this will descend to his daughter. The full sister's share is 1/2 of 2/3=1/3, and this will be divided between her son and daughter, so that tiie son wiU take 2/3 of 1/3=2/9, and the daughter will take 1/3 of 1/3=1/9.

»(b) A Mahomedaa dies leaving a fulJ brother's son's daughter and a, sister's daughter's son. The former will succeed, being the child of a residuary (brother'soson), in preference to the latter who is the child of a distant kinswoman (sister's daughter). See s. 44, Rule (2).

48, Fourth class of Distant Kindred — For the

purposes of succession, the ]}istant Kihd^ed of the

76 ■ MAHOMED AN LAW

• . I

^

^lourth class may be divided into tHe two following groups : • *

^. Children of impiediate gr^dparents,. true or false, namely, ^ *

(a) full, consapguine, and 'uterine ^isters of the fath'er ;

(b*j full, consanguine, and uterine sisters of the uaother ;

* (^) ^uterine brothers of the father ; and

(d) full, •consanguine, and uterine brothers of

the itiother,

•

This group comprises all paternal and maternal uncles and aunts, excepting full and consanguine paternal uncfes who belong to the class of residuaries (see Tab. of Res., nos. 11-12). Note that all the distant kindred in this group are equal in degree.

II. Eemoter des(;endants of grandparents, and descendants of remoter ancestors, true or false.

49. Succession of group I (uncles and aunts) —

The succession of relations comprised in group I is governed by the following rules : ^

(1)*- Amoug claimants on the same sidtj, those of the whole blood are preferred 'to those of the half blood, and consanguine relations are p^referred to uterine relations, without distinction of sex.

TKe ** same side " means either the father's side or the mother's side. Thus in the case of claimants on the father s side, the father's full sister is preferred to the father's consanguine cr Titerine sister, and the father's consanguine sister is preferred to the father's uterine sister. The order of priority is the same in thef case of claimants on the mother^ s side. •

It is important to note that the abof^e rule applies to the case only of claimants relatedrto the deceased on the same side.

^ yOURTH CLASD OF DISTANT KINDRED* 77

i Hetfce the father's full sister, though of the whole blood, does not exclude the mother's consanguine sister, the former being related throngh the -^htherj and the latlter through thb' motlier. See ill. (a) to the next rule.

It is also importrnt to note that the above rule applies irrespective of the sexes of the claimants ; hence the father's /m^ or consanguine sister is preferred to the father's uterine brother, though the latter is a male. Similarly the mother's full or consanguine sister is preferred to the motheir's uterine brother.

According to the rule now under consideration, the mother's consanguine sister is preferred to the mother's uterine sister, though the former is the child of a distant kinsman (mother's father), and the latter ^he child of a sharer (mother's mother). The reason is that the rule that the children of shares or residuaries are preferred to the children of distant kindred does not apply to this group.

(2) If there are claiinantbon the paternal side, together with claimants on the maternal side, the former will take collectively 2/3, and the latter 1/3, and each side will then divide its own collective sharep subject to the above rule, each male td^king a double share.

2

llustrai

Hans.

(a)'

Father's f. sister, Mother's c. sistp',

...

1)

^

w^.

23 ' 1/3 o

(b)

Fjthei'^s u. sister, Mother^sf. brother

• ••

...

•«.

2.3. 1/3

(c)

Father'' s u. brother Father's u. sister Mother^sf, brothf^r Mother^s f. sister

{

1

2/3 1 1/3 1

*«•

2/3x2/3«=4/9 1/3x2/3=2^9 2/3x1/3=2/9 1/3x1/3=1/9

Sir

. 55-56.

J

50. Succession of group II. — The succession o£ relations comprised in group II is to be detei;mined by applying the following rules in order : —

( 1 ) The nearer in degree ekcludes the niore remote.

\

J

78 MAHOMEDAN* LAW . t •

(2) Among claimants on the same side, those bi the whole blood are preferred to those of the half bleod, ' and consanguyie relatfonS* are preferred to uterine relations^ witho\it distinction of sex.^ .

See s. 49, rule (1) , * * «

(3) Among claimants on the same side, the chil- dren of residi!iaries are preferred to the children of distant kindred. »

The disfant'kindred comprised in group II are either children of residuaries or of disfknt kindred.

« (4) If there are claimants on the paternal side together with claimants on the maternal side, the for- mer will take collectively 2/3, and the latter 1/3, and each side will then divide its owfi collective share according to the rule'of the double share to the male.

See s. 49, rule (2)

(5) AYhere the sexe»of the intermediate ancestors differ, the principle of sex-grouping is to be a!|>plied, according to the system of Muhummad, in the same manner as in the case of distant kindre^ of the first class. • * • » *

See s. 45 rule (4). Sir. oS-58.

51. Successor by contract. — In default of Shar- ers, Residuaries and Distant Kindred, the inheritance devolves upon the ''Successor by Contract," that is, a person who derives his right of successiqn under a contrgLct with the deceased, in consideration of an undertaking given by him to pay any, fine or ransom to which the deceased may .become liable.

Sir. 13 ; Hedaya, p. 517 ; Tagore lAw Lectures, 1873, p. 92. It would seem, 'according i^ the Sirajiyyah, that the deceased ihust be a person of unknown desfcent.

/

I SUCCESSORS UNRELATED IN BLOOD 79

52. Acknowledged kinsman. — Next in succession is the ** Acl:nowleclged Kinsman," that is, a person of unknown descent^ tin .whose favdur the deceased kas made an acknowledgment of »*kinship, not through

himself, bnit through another.

•

Such • an acknowledgtnenl .confers upon the "Acknowledged Kinsman" the right of succession to the property of the deceased, subject to bequests to the extent of the bequeathable third^ but it does not invest the acknowledgee with all the right* i5f an actual kinsman.

Sir. 13. The kinship acknowledged mus4 be kinship through another^ that is, through the deceased's father or his grandfathers Thus a person may acknowledge another to bo his brother, for that is liinship through t\iQ father (e). But he may not acknow- ledge another to be his son, for that is kinship through himself. The acknowledgment by the decease(^ of a person as his son or daughter stands upon a different footing altogether, and it is dealt with in the chapter of "Parentage,"

53. Universal legatee. — The next successor is the "Universal Legatee,'^ that is, a person to whom the deceasecl has left the whole of his property by will.

■ Sir. 13. It is to be noted that the prohibition against bequeath- ing mdre than a third exists o&ly for the benefit of the^ heirs. Hence a bequest of the whole will take tjffect if the deceased has left no known heir (/). •

54. Escheat. — On failure of all the heirs and successors above enumerated, the property of a 'de- ceased Mahomedan 'escheats to the Crown.

^ir. 13. The rule of pure Mahomedan law in this respect is dj^erent, for according to that law, the property does not devolve upon the Governmei/t by way of inheritance as ultimus hcereSj but falls to the * bait-ul-mal (public treasury) for the benefit of

Musalmans, ■»

,__ .1

(e) Tagore Law Lectures, 1873, pp. 92-l)3.» » ,

(/) Baillie's Moohummudan Law vif Inheritance, p. 19. j

(

c

80 MAHOMEDAN J.AW

(

Miscellaneous,

55. Step-children — Step-children do not inherit from step -parents, nor do step«-pafr^nts inhe3'it from step-children. ^ ^

See Macnaghten, Precedents 'of Inlieritano?, no. xxi.

56. Bastard— ^n illegitimate child inherits from his mother and her relations, aud they inherit from him (g). ^ '

f , Illustration,

c A Mahomcdan female of the Sunni sect dies leaving a husband and

an illegitimate son off her sister. The husband will take 1/2, and the

sister's son, though ilbgitimate, will take the other 1/2 as a distant

i'insman, being related to the deceased through his mother : Bafatun v.

Bilaiti Khanum (K),

57. Missing persons — When the question is whether a Mahomedan is alive or, dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been, alive, the burden of proving that he is alive is on th^ person who affirms it.

Under the Hanafi law, a missing person is to be ^regarded as alive till the lapse of ninety years from the date of his birth. But it has been held by a Full Bench of the Allahabad High Court, that this rule is merely* a rule of evidence, and it must therefore be taken as sup^^rseded by the previsions of the Indian Evidence Act ( i J. The present section reproduces , with some verbal alterations the provisions of s. 108 of the Evidence Act.

C. Shiah Law of Inheritance.

[The following twenty sections contd^in the principal points of distinction between 4he Shiah and the Sunni Law of Inheritance. The most authoritative text-book of the Shiah law is Sharaya-ul-Islam (J ), the whole j of which has been

Ir

c

L

(^g) Tagore Law Lectures, 1873, p. 123.

Qi) (1903) ^0 Gal. 683.

(O 3I^zlar Alt v. Budh Singh (1884) 7 All. 297.

(;' ) ^^'^« ^^''' K^^<^n V. AltafH({mn Khan (1892) 14 All. 429, 450.

c

% \ spiAH lAw of inheritance 81

* .p

•translated yito French by M, Querry, under the title, Droit Musalman, The Second Part of Baillie's Digest of Moohummudan Law, wjth the excoptioil of the la^t Book, is composed, fls the aathor tells us in the Introduction ^p. xxvij, of translations from Sh'araya-u1-Islam.] •

• « •

58. Division of heirs — The' Shiahs divide heirs into two groups, namely, (1) heirs, hj marriage, and (2) heirs by consanguinity.

59. Heirs by marriage — The heirs<»by marriage are the husband and wife, and tljeir shares are a fourth for the husband and an eighth for the wtf e, if there is a child or " child of a child how low soever " (not merely " child of a son how low soever" as in Hanaii law), and half for the husband and a fourth for th^ wife, if there is no child or child of a child how low soever. ^

Baillie, Part II., 273. According to the above rule, the existence of a daughter's son or a d»ughter^s daughter will have the effect of reducing the share off the husband or wife, though not according to Hanafi Jaw.

60. Heirs by consanguinity — Heirs by consan- guinity are divided, according ^o the order, of their

succession, into the following three classes, narjaely, »

I. ^^(z) Parents ;

(ii) Children and other lineal descendants h.l.s.

II. {i) Grand-parents h.h.s. (true as well as false);

' {ii) Brothers and sisters and their desJiend-

• apts h.l.s.

III. Paternal and maternal uncles and aunCs of the deceased, and of his parents and grand- parents h.h.s., and ^eir descendpjnts h.l.s»,

Baillie, Part II., 276, 280, 285. • *

6 . '

82 MAHOMED AN LAW

61. Order of succession. — 0£ tbese threo classes, each excludes the next lower, but one division of a class' does not exclude tb'^ other. * *^ '

• <

IllnstrL,tion8,

r

(a) A Shiab Mahomedan dies lenMngp. daughter*s son, a father^ mother, and a full brother.

By Hanafi la\^ the ^father's mother as a sharer will take 1/6, and the full brother as a residuary will take 5/6 ; the daughter's son, being a distant kinsman will be entirely eicluded from inheritance.

r

By Shiah laW thj daughter's son, being an heir of the first class, will succeed to the whole inheritance in preference to the father's mother and the fall brother, both of whom belong to the second class of heirs.

(^) A Shiah Mahomedan dies leaving a brother's daughter and a full paternal uncle.

By Hanafi law the full paternal uncle, being a residuary, will take the whole property to the exclusion of the brother's daughter who is a distant kinswoman. '

By Shiah law the brother's daughter, being an heir of the second class will succeed in preference to the full paternal uncle who belongs to the third class of heirs. ,

(c) A Shiah Mahomedan dies teaving a brother and a grandfather. Neither of these relations excludes the other, for they both belong to the same class of heirs, that is, the second class.

Illustrations (a) and (b) exemplify the fundamental distinction between the 'Shiah and the Sunni Law of Inheritance. Undei the Sunni law, the relftcions known as *' distant ^indred " are post- poned to sharers ai?d residuaries. *' Distant kindred," jt will be remembered, are all cognates, for they are connected with the deceased through females. On the other hand, " residuaries " are all agnates, for they are connected with the deceased through males. The Sunnis prefer the agnates to cognates, but the Shiahs prefer the nearest kinsmen without reference to, the 'uex throug;h which ihey are connected with the deceased. In other words, the distinction between agnates and cognates, which obtains in Sunni law, has no place in Shiah law. All heirs by consanguinity, under the Shiah law, are either sharers or residuaries. But the '* re- siduaries " ^pf 'Sbiah law comprise also some of the relations knqwn as " distant kindred" in the Sunni law.

SHIAH LAW OF INHERITANCE 88

«

• •In workyig out examples, the first step is to assign to the hus- band or wife (if any) his or her share Recording to the rule set forth inc. 59. The'next'step is to j^scertain the class to 'which the surviving relations belong, and if therf^ be any sharers among them, to assign theiij respective sfeares to them. If there is a re- sidue afifer the claims of the fe5^reri^are, satisfied, and there are re- siduaries (note the special meaning of this term), the residue is to be divided among them according to the rules s*t foTih below.

62. General Rule. — In each division of the first and the second class, and m the third* cfess* where there are no divisions, the nearer .excludes the more remote. •

* Illustration, A Shiah Mahcmedan dies leaving a grandfather, a great grandfather, a brother, and a brother's son. The grandfather will exclude the great grandfather, and the brother will exclude the brother's son ; but the brother does not exclude t]ie grandfather, because they belong to different divisions of class II. ^

63. Parents. — (1) The father succeeds, as a sharer, if the deceased has lef^ any lineal descendant: as a residuary, if there be np such descendant.

'{2\ The mother takes one-sixth, if there be a lineal descendant, or, if there are two or more bro- thers, or one brother and two or more sisters, or four or more sisters, either* full or coifsaneuine ; otherwi'se, she t^kes one-third. *

Bailli'rf, Part II., 271-273. As to the father's rights under the Hanafi law, see notes on ill. (p), p. 54 ante. As to the mother's rights under the Hanafi law, see Table of Sharers, no. 5.

64. Children^* — When there are children of both sexes, the, portion of each maje is double that of a female. * •

Baillie, Part II., 276.

65. Grandchildren.— The children of eac?i son take among them th^ share which their father would have taken, and the children of each daughter tak^ among them the ^hare wllich their mcjther would have

84 MAHOMEDAN L^W

c

taken, according to the rule, in^ each Iqrsinch of descendants, of a dout)le portion to the male.

The same rule applies'to great grand-children, and remoter lineal descendants.^ «

r

^ ni'kstratrin. "

A Shiah Mahomedan dies leaving relations indicated in italics in the lowest line of tht foUpwing table : —

Propositus son 2/5 son 2/') daughter l/o

daughter 216 *o» (2/3 oE 2/5^4/15) da^cghtef sonljo

*- illSoi 2,6 =2115)

Here each son, had he survived the Propositus, would have taken 2/5. The dausrhter, had she survived the Propositus, would have taken 1/5. The shares of the grand-children will be as ehown in, the table. As to the children of the second son, it wi^ be observed that the son takes a portion double that of the daughter.

Baillie, Part II., 278-279^

6?. Brothers and \aisters— -Full brothers or sisters exclude consanguine brothers or sistei;s, but neither brothers nor sisters full or consanguine exclude uterine brothers or sisters.

The^share o£a full brother is double that of a full sister, and the ^ share of a consanguine brother is double that of a consanguine sister. *"

The share of one uterine brother or sister is one- sixth: the collective share of two^or more uterine brothers is one-third, to be divided equally among them^

Baillie, Part II., 280-281. The rules in thet second and third clauses, are the same as in Hanafi law.

67. Nephews and nieces — The children of each brother, f«ll or consanguine, divide among them the shafi*e which thqir father woHild have taken according

SHIAH t.AW OF INIIERITANd^ 85

% 1 •

to the rule of the trouble share to the male, and tjie ^ children of each sister divjde among them the share which thHr mother would have taken, according to the same rule; J:«t.the childrtfti of uterine •broihers and sisters' divide equally »*among them, without distinction of sex, the ouq- third or the one-sixth, as the ca^ie may be' . •

Baillie, Part II., 284.

68. Grand-parents — (1) If there are no brothers or si&ters, or descendants of brothers or sisters, the maternal grandfathers take one-thiiid "in equal portions, and the paternal grandfathers take two- thirds accoidino: to the rule of the double share to a male. ** »

(2) If there is a maternal grandfather or maternal grandmother, together with uterine brothers or sisters, the grarfdfather counts as a brother and the grandmother as a sister, anc^the mother's third is divided among them all equally.

If there is a paternal grandfather or paternal gi'andmother, together with full or consanguine brothers or sisters, the grandfather counts as a full or consanguine brother, and the grandmother as a full or consanguine sister, and. the father's two-thirds will be divid'ed among them according to "the rule* of the double portion to the male. ,

The same principle applies when grand -pa rents are combined with the descendants of brothei^s or sisters. ^

» Illustration.

Father's father i g... } 2/3 of 2/3«= 4/9

• Father's mother \ ' ] ^ 1/3 of 2/3=2/9

Mother's father \ ,.o I ... ' l/2of 1/3=1/6

Mother's m lit her \ ' j 1/2 of 1/3=1/6

Baillie, Part II., 281. •

86 ' MAHOMEDAN tAW

, 69. Uncles and aunts— The following rules govern the succession of ujicles and aunts: —

(1) Among claimants on the same side, and in the same degree of relationship-, those of the whole blood are preferred to those of the half blood.

Exception — The son 'of a full, paternal uncle is preferred to a conpanguip© paternal uncle,' though the latter is nearer in degree.

As to the meaning of the expression **8ame side," see notes on 8. 48, rule (1). *

(2)^ If there are claimants on the paternal side, together with claimants on the maternal side, the former will take collectively two-thirds, and the latter one-third. ♦*

lllnstration. A Mahomedan dies leaving a consanguine paternal uncle and a f uH maternal aunt. The former, in virtue of his claiming tlirough the father, will take two-thirds; the latter, in virtue of her, claiming through the mother, will take one-third. « >

(3) Maternal aunts share equally with maternal uncles of the same kind, and uterine paternal aunts share equally with uteri^ne paternal uncles. But full and consanguine uncles and a'unts share according to the rule of the double portion to the male.

(4) Among uncles and aunts on the same side, the distribution is gbverwad by the same principle as among brothers and sisters of the deceased.

Baillie, Part II./285, 286.

70. Children of uncles and aunts. — The children of Uncles and aunts take the share of their respective parents in like manner as children of brothers and sisters. . c

Baillie, Part II., 287.

?,!• Doctrine of '* Return." — If there is a resi- due left after satisfying the claims of Sharers, but there is no c Residuary in the ' class to which the

SHIAH i.AW OF INHERITANCE 8<

Sharers helonq^ tjie residue reverts to the Sharers in the proportion of their respective shares.

* Illustration.

Mother ... I..., ... 1/6 incrdised to 1/4 • ^

Lhughter ... * . ly2«=3/6 ,• „ 3/4

Brother 0 ^

• •

Note that by Haiiai| law, the brotHer would have taken the residue 1/3.

But by »Shiah law he takes nci;hing,»for he belongs to the second class of heirs, and no member of the second class can inherit so long as there is any member of the first class.. In fact, the rule set forth in thg present section follows as a necessary conse<^uence from the order of succession in which Beirs by Consanguinity inherit. ^

72. No return to a wife — A wife <s not* in any case entitled to the "return," but the surplus will escheat to the Crown. •

Baillie, Part II., 26^. »

73. Mother when not entitled to "Return." —

When the deceased has left a mother, a father, and one daughter, tod also two or more brothers, or one brother and two or more sisters, or four or more sisters, either full or consanguine, the surplus will "return'* to the father and the daughter, but not tO' the mother. , * •

. Illustration,

Father.^ 1/6 increased to 1/4 x (5/6)= 5/24

Daughter ... 1/2=3/6 „ 3/4 x (5, 6)= 15/24

Mother . ... ... 1/6 ,^ = 4/24

• 2 full brothers ^excluded, being heirs of* the second

• class.) • •

The rule set forth in the present section follows from the state- ment of law in Baillie, Part II., p. 272. This is the only case in

which the mother is excluded from the " return."

•

74. Doctrine, of "Increase." — The doctrine of " Increase " has no place in Shiah Law ; for the only

'case in which 'under that law the sum total *of the

• sharers could exceed unity is where a daughter or

daughters are among the surviving relations, and

the rule in that case.is to deduct from the share of the

daughter or daughters the fraction in excess of unity.

§8 ' MAHOMEDAN LA*W

Illustration, ^ •

Hvsland 1/4=3/12 =H/12

Daughter l/2:=6/12 reduced to 6/12-^1/12=5/12.

Father 1/6=2/12 ' =2/12

Mother «... 1/6=2/12 «=2/12

• 13/12 1

Note. — Here the excess over unity is 1/12, and this will be dedncted frc/in the daughter's original share, so that fi'er ultimate share will be 5/12. This will restore the total of the shares io unite'. »

Baillie, Part II., 263. Having regard to the rules of succes- sion among Shiahs, no case of ** Increase " is possible amongst heirs of the second or the third class. ^

• . ^ Miscellaneous,

75. Eldest sqo. — The eldest son, if of sound mirfd, is exclusively entitled to the wearing apparel oU the father, and to his Koran/ sword, and ring, provided tlie deceased has left other property besides the said articles.

Baillie, Part II., 279. ,

76. Childless wido^.— A childless widow is not entitled to a share in her husband's lands, but only to

«a share in his moveable* property, and in the value of buildings or other structures iQrming part of his estate. .

Baillie, Part II., 295. Mir Alt v. Sajuda Begum (k); Umai' daraz Alt Khan v. Wilayat ^li Khan ( I ).

The ex4)res8ion '^ands" in this section does not refer iaagricul-' tural land only, but also to land forming the ^ite of buildings : I Aga Mahomed Jaffer v. Koolsom Beehee (m), «'

77. Illegitimate child. — An illegitimate child does not inlierit at all, not even from his mother or her relations, nor do they inherit from him.

Baillie^ Part II., 305 ; Saltehzadee Begum v.. Himfnut Baka-t door (w), 1

. : . ■ — — ' . ,_.

(k) (1^7) 21 Mad. 27.

(O (896) 19 All. 169. *

(w) (1897) 25 Gal. 9. *

(») (1869; 12 W.»K. 512, S C. on review (1870) 14 W. R. 125.

1

• 89

• CHAPTER VI.

• • • , Wn.Ls.

[The leading authority o^i the subject of Wills is ihe^Hedai/a (Guide) w^ich was translated from the original Arabic into Per- sian 4)y f curt moolvees or Mahomedan lawyers,* and from Persian into English by Charfes Hamilton, by order of Mr, Warren Has- tings, when Governor-General' of InCfia. The Hedaya was composed by Sheikh Bwrhan-ud-Deen Ali, who flourished in the twelfth century. The authoi of the Hedaya belonged to the Hauafi School, and it is the doctrines of tlfat school that he has principally recorded in that work. The Fatawa Alctifngm, a work of minor authority, was compiled in the seve:gteeDth century by command of the Emperor Aurungzebe Alumg^er. It is *' a collec- tion of the most authoritative /w^mjos or expositions of law, on all^ ; points that had been decided up to the time of its preparation/' The law there ex^jounded is again the law of the Hanafi sect, as the Mahomedan sovereigns of India all belonged to tliat sect. The First Part of Baillie's Digest of Moohummndan Law is founded chiefly on that work. Both the Hedaya and Fatawa Alamgiri deal with almost all topics of Mahomedan Law, except that the Law of Inheritance is not dealt with in the Hedaya. The Hedaya is referred to in this and subsequent chapters by •the abbreviati<?n Hed,^ and the references are given to the pages of Mr. Grady's Edition of '* Hamilton's Hedaya." The leading work on Shiah law is Sharaya-ul-Islarriy for whicjj see the preliminary note on p. 80 ant\\ , ,

78. persons capable of making wills. — Subject to the limitations hereinafter set forth, every Mahomedan of sound mind and not a minor may dispose of his property by will.

Hed. 673, ^ Baillie, 617. The age of majority as regards matters others than* marriage, dower, divorce, and adoptian, is noi^ regulated by the Indfan Majority Act IX of 1875. Sec. 8 of the Act declares that a person ?hall be deemed to have attained majority when he shall have completed the age of eighteen years. In the case, however, of a minor of whose person «r property a

90 ' MAHOMEDAN ' LAW

guardian has been appointed, or of who,«e property the superinten- dence has been assumed by a Court of Wards, the Act provides that the age of majority shall be deemed to have bijen attained on the raipor completing ihe age of twenty-qne years.

Minority under the Ma'aomedan law terminates on completion of the fifteenth year, and therefore, before the passing of Abt IX of 1875, a Mahomedan, whp ha(J^ attained 'the age of f fteen years, was qualified to make a valid'disposition of his property (Ameer Ali, Vol, I, 10). But this rule of Mahomedan law, so far as regards matters other than marriagt^, dower, and divorce, (adoption not being recognizee! by that law), must be taken to be superseded by the provfeions of the Majority Act, for the Act extends to the whole of British Ii^dia (s. 1), and applies to every person domiciled in British India (s. »3). Hence minority in the ease of M ahomedans, for purposes of wills, gifts, wakfs, etc., terminates not on the comple- tion of the fifteenth year, but on completion of the eighteenth year (o).

Shiak law : suicide, — A will made by'a person after he has taken poison, or done *any other act towards the commission of suicide, is not valid under the Shiah law : Baillie, Part II. 232. In Mazhar Husen v. Budha Bihi {p), the deceased first made his w^ll, and then took poison, And it wa^s held that the will was valid, though he had contemplated suicide at the time of making the will.

79, Form of will immaterial. — A will may be made either verbaUv or in writinsr.

'**By the Mahomedan law no writing is required to make a will valid, and no parjiicular form, even of verbal declaration, is neces- sary as long as the intention of the testator is sufficiently ascer- tained" {q). In a recent case before the Privy Council, a letter written by a testator shortly before his death, and containing directions as to the disposition of his property, was held to consti- tute a valid will (r). The mere fact that, a document is galled

« _________ _ — , J -

(o) Compare Madhuh Chunder v. Majcoomar'Doss (1874) 14 B.L.R. 76.

(5?) (1898) 21 All. 91. *

(q) Mahomed Altafy, Ahmed Bultsh <1876) 25 W.R. 121

(f) Mazhd^ Husen v. Bodha BiH (1898) 21 All. 91

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\ • • ,

WILLS • 91

tamlik'nama (nssigninent'^, will not prevent it from operating as a will, if it contains dispositions which are to take effect after the executant's death. Thyis where a tamlik-'nama purported to give S, in consideration of her devotion and aQ'ection to the executant, the execiftant's propmy, and pro\idjd that the executant should during her life enjoy the income of the property, and that at her death, S and her he?>8 should became the owners of the property, it was helA that the document o^eratld aa a will (s).

80. Bequests to heirs. — A bequest .to ^n heir is not valid^ unless the oth^r heirs consent to the bequest after the death of the testator. *

Explanation, — In determinirig whether a person is an heir or not, regard is to be had not to the timeiof the execution of the will, but to the time of the testators' s death.

Illustrations.

(a) A Mahomedan dies leaving him surviving a son, a father, and a paternal grandfather. •Here the grandfather is not an "heir," and a bequest to him would be valid without the'Rssent of the son and the father.

(b) A, by his will, bequeaths certain property to his father's father. Besides the grandfather, the testator had a s^n and a father living at the time of the will. The father dies in the ^ lifetime of A, The bequest to the grandfather cannot take eJEect, unless the son assents to it, f#r the father beitig dead, the grandfather is an "heir" at the time of A's death.

(c) A, by his will, bequeaths certain property to his brother^ The only relatives of the testator living at the time of the will are a daughter and the brother. After the date of the vf ill, a son is born to A. I'he son, the daughter, and the brother all survive the testator. iThe bequest to the brother is valid, for though the brother was an expectant "heir" at the (lute of the will, hQ Qoviid. not succeed as an "heir" at the death of the testator, for he would be excluded fiom inheritance by the son. [If ihe daughter and the brother had been the sole surviving relatives, the bj-other would have been entitled ^to succeed as a "residuary," and the bequest to him could not then have taken effect, unless the daughter assented to it] ; Bc^illie, 615; Ekd. 672,

• (d) A bequeaths certain property to one of his sons as his executor upon trust to expend slich portion thereof as he may think proper "for the testator's welfare hereafter, by charity and pilgrimage," and to retain the

(«) Saiad Kasum v. Shaista Bihi (1875) 7 N.W.P. 31^.

92 ' MAHOMEDAN *LAW /

f , '

surplus for his sole and absolute use. The other sons do not consent to the 'legacy. The bequest is void, for it is "in reality an attempt to give, under color of a religious bequest," a legacy to o^e of the < heii^, Kliajooroonissa v. Rowshan Jchan (1876) 2 iCaJ. 184, L. K. 3 I. A. 291. {If the Request had been ^^exclusively for jeliffious purposes, and if those purposes had been sufficiently tdefined, it would have been 'valid to the extent of the bequeathable third].

r

(e) A Mahomedan leaves him surviving a soft and a daughter. To the flon he bequeaths tbree-iourt'Ls oft* his property, and to the daughter one-fourth. Tlie daughter may not consent to the disposition, and she is entitled to cl^im A third of the property as her share of the inheritance : see Fatima Bibee v. Ariff Ismailjee (1881) b C. L. B. 66.

Hetl. ^21^; Baillie, 616, as to Explanation. Under the Mahomedan law a bequest to an heir is not valid without the cpnsent of the oflier heirs {t). The poh'cy of that law is to prevent a testator from interfering by. will with the course of devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger (u). The reason is that a bequest in favor of an heir would be an injury to other heirs, inasmhch as it would reduce their legitimate share, an(f '*would consequently induce a breach of the ties of kindred" (Hed. 671). But this cannot happen if the other heirs, ''having arfived at the age of majority," consent to the bequest. The consent n^tjessary tp give effect to the bequest must be given after the death of the testator, for jio heir is entitled to any interest in the property of the deceased in his lifetime. ' See notes under the head *• Powers of alienation of a Mahome^^lan owner," at'p. 40«a7ifc. *

111. (e) presents the case of a bequest of the whole of the testator's property to all the surviving heirs. The shares according to law would be 2/3 for the son, and 1/3 for the daughter. The daughter may object to the bequests, and claim her share, for the bequest to her is only o,* a fourth.

A bequeaths the rents ^f a house to one of hi^- sons for life, and, after his death, to a charitable society for the benefit of the poor. The other sons do not consent to the 'legacy. The bequest

(t) Bafatun v. Bilaiti Khanum (1903) bO Cal. 683. ' (u) A'hajooroonusa v, Moioshan Jehan (1876) 2 Cal. 184, 196, L. E. 3 I. A. 291, 307. *

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N

\^ILLS 9S

to-thft son being void for want of assent of the other sons, the subsequent bequest also will not take effect (v).

» * • i * ^

Shiah Lhw. — Under the Shiah Lavif the consent of the other

heirs is not necessary to validate a bequest to bA heir, provided the bequest does not exceed Hhe legal third^(Baillie, Part II., 244).

81. Extent of testamentary power. — A Maho- medan cannot by will* dispose of more than ^ third of the surplus of his estate after payrpent of funeral expenses and debts. Bequests in excess of tlje tegal third cannot take effect, unless the heirs consent

thereto after the death of the testator. * •

•

Hed. 671. It will be seen from this and the preceeding section ■» that the powers of a Mahoraedan to dispose of his property by will are limited in two, ways : first, as regards the persons to whom- bequests could be made ; and secondly, as regards the extent to which he could bequeatii his property. Jhe only case in which testamentary dispositions are binding upon the heirs, is where the bequest does not exceed tlie legal third, and it is made to a person who is not an heir. But a bequest in excess of the legal third, may be validated by the consent of the heirs ; similarly, a beqrffest to an heir May be rendered valid by the consent of the other heirs. The reason is that the limits of testamentary power exist solely for the benefit of the heirs, and the heirs may^if they like, forego the benefit by giving their consent. For the same reason,, if the teerfator has no heir, he may bequeath the whole of his property to a stranger (see 8. 53 ab»ve, and Baillie, 614).

As to the consent of heirs necessary to validate a legacy exceed- ing the legal third, it is to be remembered that the consent once given cannot be rescinded (Hed. 671). The consent need not be express : it may be signified by conduct showing a fixed and unequivocal intention. A bequeaths the whole of his property, which consists of three housos, to a stranger. The will is attested by his two sons who ar^ his only heirs. 'After A's death, the legatee

enters into possession, and rocovers the rents with the knowledge

»

(r) Fatima Bihee v. Arif Ismailjge (1881) 9 C. L. R. 66, with facts slightly altered. t

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( .

94 MAHOMEDAN* LAW , ^

of the sons, bat without any objection from them.^ Those .facts are sufficient to constitute consent on the part of the sons, and the beq<!est will take efifect as ac^s^Qst the&onS*and persoqs claiming through them {w), ^

Bequests for pious purposl^ like other^ bequests, can only be made to the extent Qf th« b^que^^thable third. ^

A commission to an executor, by way^ of remuneration, is " a gratuitous bequest^ and . . . certainly not in any sense a debt** It is therefore subject to tlie rules contained in this and the pro- ceeding sccti^^n (x),

Shiah Law. — lender the Shiah law, the consent necessary to 'validate a bequest exceeding the legal third may be given in the 'lifetime of the testator : Baillie, Part II., 233.

82. Abatement of legacies.— -If .the bequests exceed the legal third, and the heirs refuse theh' con- sent, the bequests a^ate in equal proportions.

Hed. 676 ; Baillie, 626, 627.

83. Bequests to unborn persons. — A bequest to a person not yet in existence at the testator's death is void ; but a bequest may be made to a child in the womb, provided it is born within six months from the date of the bequest.

The legatee, according to Muhomedan law, must be u person competent to receive the legacy (Baillie, 614) ; he must therefore be a person in existence at the death of the testator {y\.

As to a bequest to a child in the womb, see Hed. 674.

'84. In what case a legacy lapses.— If the

legatee does not survive the testator, the legacy can- not take effect, but it will lapse and form, part of the residue o£ the testator's property.

See Hed. 679. Compare the Indian Succession Act, s. 92, which, however, does not apply to Mahomedans. ,

(w) Baulatram v. Abdul Kayum (1905) 26 Bom. 497. See also Sharif a Bibi v. (^^ilain Mahomed (\^'2) 16 Mad. 43.

(a?) Aga JMahomed Jafer v. Koolsom Beehee (1897) 25 Cal. 9, 18. (y) Abdul Cadur v. lurner (18^84) 9 liom. 158.

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WILLS 95

^hifih Law. — Under the Shiah law, the legacy would, in snch a case, pass to the heirs of the legatee, unless it is revoked by the testator ; but if the lega^iJe sJjould die^ without leaving an J h«#r, the legacy would pass to the heirs of th'ete8tato| (Bnillie, Part II.,

247).*

»

85. Subject of legacy-^jlt 15 not necessary for the validity of a bequest^ that the thing bequeathed should be in existence at, the time of the execution of the will ; it is sufficient if it exists at.the time of the testator's death. , •

Baillie, 614. The subject of a gift must be iy existence at the time of the gift ; see s. 100 below. ,

86. Revocation of bequests — A bequest may be ^ revoked either expressly or by implication.

Hed. 674 ; Ba'illie, 618, The revocation is express, when the testator revokes th,^ bequest in express terms, either oral or written. It is implied, when he does* an act from which the revocation jaay be inferred.

It is doubtful whether if a testator d«iy that he ever made a bequest, the denial operates as a Revocation ; but the be^er opinion seems to be that it aoes not : Hed. 675 ; Baillie, 619.

87. Implied revocation — A bequest maj be revoked by an act which occasion § an addition to the subject* of the bequest, of an extinction * of , the proprietary right of the tes-tator,

> llhistrations,

(a) A bequest of a piece of land is revoked, if the testator subsequently builds a bouse upon it. •

(b) A bequest of a pi^ce of copper is revoked, if the testator subsequently converts it into a vessel.

(c) Abeques<»of a bpuse is revcked, if ti5e testator sells it, or Djakes

a gift of it to another.

• »

Hed. 674, 675 ; Baillie 618. The ilJustiations are taken from the

Hedaya. * »

88. Revocation by 'Subsequent will — A ^bequest to

. one person is revoked byabeques1> in a subsequQnt will

of the same property to ani^ther. But a subsequent

/

96 MAHOMEDAN LAW ' ,

bequest, though it be of the same property^ to another person, in the same will, does not operate as a ^^vocation of the previous bequ6S;t, and the,,property will be divided betwieen the two legatees in equal shares. ^ '

Hed, 675 ; Baillie, 620. '' r' '

89. Executor need not be a Moslem — It is not

necessary that the execiiW of the will of a Mahon^edan should be a Mahomedan.

A Mahomedan may appoint a Christian, a Hindu, or any ^on -Moslem as his executor : Moohummud Ameenoodeen v. Moohummud Kuheeroodeen («); Henry Imlach v. Zuhooroonnisa (a),

90. Powers of executors — The powers and duties of the executors of a Mahomedan v/ill are now determined by the provisions of, the Probate and Administration Act',' in cases in which that Act applies.

Per Sargent, C. J., \\i &haik Moosa y, Shaik Essa {b). The Prrbate and Administratioii Act, 1881, applies amongst others to Mahomedans. Before the passing of that Act, the powers and duties of Mahomedan executors were determined by the Mahomedan law ; since the passing of that Act, however, they are ^dete*tmined by the prarisions of that enactment. The provisions of the Probate and Administration Act are now extended almost to the whole of British India, and \y is therefore thought unnecessary to set out the rules of Mahomedan law on« the subject. It is important to note that when there are several executors, the powers of all mgy, in the absence of any direction to the contrary in the will, be exerci&ed by any one of then who has proved the will or takeu out administration (s. 92). But where there is only one executor, he may exercise all thg powers of an executor without proving the wil (c).

(z) (1845) 4 S. D. A. 55. (a) ,(1828) 4S. D. A, aD3. (J) (1884) 8 Bom. 241,256.

(

• 97

• CHAPTER VII.

• • Deat^i-bed Gifts and Acknowledgments.

91. Gift ma^'j during d/eatF/- illness— Gifts ij^ade by a Slahomedan during nlarz-ul-maut or death- illness, cannot take effect, beyond a third of the surplus J of his festate g,£ter, payment of funeral expenses and debts, uAless t*he * heirs give their consent, after the lieath of the donor, to the excess taking eifect ; nor can shch gifts take effect, if made in favor of an heir, unless the otlier heirs cgnsent thereto after the donor's death {d). *

Explanation. — A marz-ul-maut i^ a malady wMch induces an apprehension of death in the perso^ suffering from it, and which eventually results in his death.

Hed. 684, 685 ; I];aillie, 542, 544.

Result of decisions (e). — It is an essential condition of a marz-ul-Wuut that the person suffering from the mai^z (malady) must be under an apprehension of maui* (death). " The most valid definition of death-illness i^, that it is one which it is highlj^ pro- bable will issue fatally" (Baillie, 543). But it must be noted that mere apprehension of death is not sufficient to constitute marz-ul- maut : it is further necessary that the marz should have ended fatally* Hence it follows that if'^ gift oe made by a p«irson during marz-ul-maut of the whole of his property, it will take effect -to the extent of the whole, if he subsequently receivers from the illness. Where the malady is of long continuance, as, for instance, con- sumption or albuminuria (/), and there is no immediate apprehen- sion of death, the malady could not be said to be marz-ul-maut ; . — — t

Qd) Wazir Jan v. Saiyyid Altaf Ali (1887) 9 AU. 357.

(c) FatimaiBilee v. Ahmad Baknh (1906) 81 Cal. 819 ; Hassarat Bihi Y. Goolam Jafar (1*898) 3 C.W.N. 57 ; Muham-nad Gulshere Jfhaji v. Marlam Begaiu (1881) 3 AlV 731 ; Lahhi Beehee v. Bihhan Beehee (1874) 6 N.W.P. 159.

(/) In Fatima Bibce's case, eite<l*above, the deceased had suffere'J from albuminuria for*more than a year before his death, and there was no imme- diate apprehension of death at»the time when the deceased made the gift in question in that oa<5e. •

7 . . .

98 ' MAHOMEDAN LAW

/

but it may become marz-ul-'maut^ if it subsequently reaches such a stage as to render death highly probable, and death does in fact ensue. According to the Hedaya, a malady is said torbe of ** lolig ' continuance," if it has last/^d a year, so that a disease that has lastea lor a period of one yeaii crces not constitute a deatlr-illness ; for ** the patient has<^ become familiarized to his disease, which is not then accounted as sickness" (Hed. 685). , But " this limit of one year does not constitute a hardt^nd-fast rule, and it rnay mean a period of ahovt one year" [g). ^

92. Seisin. — A gift made* during marz-ul-maut is subject to all the conditions necessary for the vali- dity of a gift including seisin by the donee.

Baillie, 542. As to the conditions necessary for the validity of gifts, see the Chapter of Gifts, below. See also the cases cited in foot-note ( 6 ), p. 97 ante, A death-bed gift is essentially a gift, though the limits of the donor's power to dispose of his property by such a gift are the same as the limits of his testamen- tary power. It is therefore subject to all the '^conditions of a gift, among which is included the taking of possession before the death of the donor. ' '

93. Death-bed acknowledgment of debt.— An

acknuwleclgment of a debt may be made as well during death-illness as " in health."

When'the only proof of a debt is an acknowledg- ment made during dettth-ill^ess, the payment ojf the debt i^ to be postponed until after the liquidation of debts acknowledged by the deceased while be was *'in health," or debts proved by other evidence. But an acknowledgment of a debt made during death- illness in favor of an heir does not constitute any proof of the debt, and no effect will be given to it, unless the other heirs admit that the debt is due.

Hed. 436, 437, 438, 684, 685 ; Baillie,*683, 684. Thissectioli is to be read with s. 21. The provisions of the present section will govern the ** prorities" of debts referred to in that section,

(jf) Fatima Ghee's case, 326 : see supra.

•

•

%

»

0

). '

4

0

GIFTS, WAKFS,

AND •

PKE-EMPT-ION.

100

, CHAPTER Vm.

Gifts. • ^

94^ '•* Gift " defined.;-^- A Mba of ^ift is " ^trans- fer of property, m^de immediately, and without any exchange." » ^ '

This is the definition»>of Mba as gif en in the Hedaya, ^p. 482» The term *' exchange " (ewaz) is synonymous with '* considera- tion." A hiba is a transfer without iewaz or consideration. A hiha-hil-eivaz is a gift for consideration : see s. 114 below.

95. Capacity for making gifts. — Every Maho- medan of sound mind and not a minor may dispose of his property by 'gift.

See Hedaya, p. 524. As to minority, see notes to s. 78, ante.

96. Gift need not be in writing. — A gift may be made either verbally or in writing. ^,

See Kamar-un-Nissa Bihi v. Hussaini Bibi {h), where a verbal gift was upheld by the Privy Counci]. ' '

It is to be noted that the provisions of the Transfer of Pro- perty <t\.ct which relate to gifts (ss. 122-128) do not apply to Mahomedans (s, 129). It is not therefore necessary ULder the Mahomeda^n law that a gift of immovable property should be made by a registered instrufnent as required by s. 123 of that Act,

See aiso Bailliey 509. **

97. Extent of donor's power. — A gift, a^ distin- guished from a will, may be made of the whole of the donor's property, and it may be made even to an heir. ^

*' The policy of the Mahomedan law appears to be ^.to prevent a testatoh interfering by will with the course of the devolution of property according to law among his heirSf although he may give a specified portion, as much as a t'hird, to a stranger^ But it also

appears that a holder of property may, to a certain extent, defeat

• ■ — (j

, (A) (1888) 3 All. 267. <

% • • GIFTS. 101

the policy of the law hy giving in his lifetime the whole or any part €f his property to one t)f his sons, provided he complies with cer- tain forms" (/). • • I • •

It need hardly be stated that a Mahomec^an may dispose of the

i;vfiole of his property by gift in rfavor of a stranger, to the entire

exclusiom of his heirs. , • ^ %

» • •

98. Subject pf gift. — Actionable plaims and

incorporeal property may form the subject o£ gift

€qual]y with corporeal property (; ).

• • *

Illustration. A gift may be made of debts, negotiable instrunfents, or *of Government promissory notes (k') ; of malikana (Z) or of zeiftindari rights (w) ; or of lands let on lease (li) or held under attachment (p),

*' Elba in its literal sense signifies the donation of a thing from which the donSe may derive a benefit ; " Hed. 482. " Gift, as it is defined in law, is th^ conferring of a right of property in something specific, without an exchange." Baiitie, 507,

The flS^es cited in the above illustration would not have arisen At all, had it not been for the wrong n?)tion which prevailed at one ' time that khas or actual possession* was necessary in all cgses to ^jonstitute a valid gift. Conformably to that notion, it was con- tended in those cases that corporeal property alone could form the subject of gifts, for it is only that kind of property that is susceptible of khds or actual possession. Blit that notion has lori*g since been rejected as erroneous, and it has been held that when the subject

(i) Kkajooroonissa v. Mowshan Jehan (1876) 2 Cal. 184, 197 ; L. R. 3 . A. 291, 307. See also the observations of their Lordships of the Privy Council in Nawah Umjad Ally Khan v. Mohumdee Begum (18^7) 11 M.I. A. 517, 546. •

(y ) Ameer AH, Vol. I., 27. See the cases cited in the illustration. (k) Mullic\ Abdool Gufoor v. Jluleka <1884) 10 Cal. 1112, 112o. *(?) lb,, p. 1125, X malikana right is the right to receive fwm the €rovernment a sum of mon^y, which represents tHe mali¥s (ow^ner's) share of the profits of the revenue-paying estate, when from his declining to pay the revenue assessed by the Government, or from any other cause, hig estate is taken into Mas or actual ^)osse8sion of Government, or transferred to €ome other person, who is willing to pay the rate assessed. O/i) Ih., p. 1126. •

(») yJ., p. 1124. • • . ,

Ip) Anwari Begam v. ?iizam-ud-^in Shalt (1898) 21 All. 165, 167.

•

102 MAHOMEDAX .LAW ' ^

r

of a gift is not jiusceptible of actual possession, as in the case of choses in action dind incorporeal rights, the 'gift may 'be completeci by doing giny act which has the^effect of ^transferring the ownership from the donor to the donee (s^e s. 102, below). Hence a gift may be made not only of c6rporeal property, but incorporeal p^^operty ^nd actionj^ble rights. Debts, negotiable instruments, and Government promissary notes are rfll cJloses in action , or, to use the phraseology of the Trans^r of Property Act, actionable claims.

Lands held under attachment. — The effect of an attachment is not to divest the judgment-debtor of possession in the propertyr ' but of the ownership. The judgment-debtor may pay the amount of ,the decree, and Resume possession; or if he has transferred the property by gift, the donee may pay the judgment- debt, and release the property from attachment. If the property is sold in execution of the decree, the gift will take effect'to ^he extent of the surplus of the sale-proceeds after payment of the costs of the sale and of thcc judgment-debt {jp). But it is a mistake to suppose that a gift of property held under attachment does not operate at all, because the possession was in the sheriff at the time of the gift. No doubt, the High Court of Bombay has held that a valid f^ift cannot be made of a property in the possession of a mortgagee ; but tHls view, it is submitted, is untenable : see s. 99 and notes. If the view held by the' Bombay High Court is correct, it follows that a valid gift cannot be made of a propert;.y held under afttachm^ent.

99. Gift of equity of redemption.—A gift may be made by a mortgagor of his equity of redemption^ But it has been held by the High Court of Bombay that, a gift of an equity of redemption is not vahd, if the mortgagee is in possession of t^ie property at the time of the gift (^).

The*Bombay High Court does not hold that an equity of redemption could not form the subject of a gift in any case. Whafr it does hold is that a gift oTf an equity of redernption is not

ip) See Code fef Civil Procedure, s. 276. ^ (^). Is7nc^ \. Bamji {1899^ i;iBova. 682: Moliinudiii v. Manchersliak (1882) 6 Bom. 650. c

Erratum.

Page 102, line 10. — Substitute "ownership" for '* possesaion."

Page 102, line 11. — Substitute ** his possession" for " the ownership."

• • GIFTS. 103

• . . . /

valid, if the property at the time of gift is in thh possession of the mortgagee. The ground of the Bombay decisions is that delivery of possession by the«(iondr to the^onee is a condition esse&eial to the validity of a gift ; and the mortgagor cjyinot deliver possession to* the donee, if the mortgagee iss^n possession. It is quite true that seisin by the donee is a condition yecegsapy for the validity* of a gift, but it is equally establisned that when the subject of ji gift is not in its nature capable of actual possession, 'the* gift may be perfected by appropriate acts on the part oj the donor which may have the effect of transferring the ownership ; see s^ 102 beJow. When the mortgagee is not in possession of the property morgaged to him, a gift of the equity of redemption is not valid unless, the mortgagor delivers possession of the property to the donee ; for the mortgagee not being in possession, the mortgagor could deliver possession of the mortgaged property to the donee. But when the mortgagee is in possession, the mortgagor could not deliver possession to the dohee, and, it is submitted, that the gift may in that event be completed by some other appropriate method. If this be^, the Bombay decisions cannot be correct. In fact, the authority of these decisions has already been questioned by the High Court of Allahabad, (r). ^

100. Gift of future property.— A gift of property not actually \n existence at the time of gifr,«is void.

• I linst rations. •

(a) A makes a gift to B of " the fruit that may oe produce'd by his palm-tree." The gift is void : Baillie, 508. ^

(b) A Mahomedan executes a deed in favor of his wife, purporting to give to the wife and her heirs in perpetuity Ks. 4,000 every year out of his share of the income of certain jagbir villages. The gift is void, for it is in effect a gift of a portion ^f the ftfture revenues of the villages: Amtul Nissa V. Mir ^^urudin (1896) 22 Bom. 489^

^ Baillie, 508. ' *

101. Gift of properiy held adversely to^ the donor. — A' gift of pi*operty in the possession of a

■ — y ■

(r) Rahim Bakhsh y. Muhammad i/r/.y^w (1888) 11 All. 1,10: Anwari Begam v. Nizam-ud-din (1898) 21 All. 166, 170. 171. See also Ameer Alf Vol. I., 29, 30. *

I

]04 MAHOMEDAN LAAV '

person who c'ainas it adversely to^the doipr is not valid, unless the donpr subsequently acquires posses- sion,^nd puts the donee ,in, possession of the property.

Illustrations. t ,

(a) A executes a deed of gift in favor of his nepht w, conferring upon him the proprietary right to cejetais lands of ;ihich he is not in possession, but to recover which he had brought an action, then pending, against Z. A dies during tile pendency of the suit. The gift is void, for it has not

been completed by delivery of possession to the nephew: Macnatt(/hte)i, 201.

c

(b) A'exeeutes a deed of gift in favor of B, conferring upon him the proprietary right to certain lands, then in the possession of Z, and claimed by Z adverse!^ to A. <'A dies without acquiring possession of the lands. After A's death, B sues Z to recover possession from him. The suit will not lie, for the gift has not been completed by delivery of possession to B : Meherali v. Tajudin (1888) 13 Bom. 156 ; Rahim Baklish v. Muhammad Hasan (1888) 11 All. 1.

Thi3 rule is virtually a corollary of the propf)8itioii that delivery of possession to the donee is <. necessary to complete a gift. As such, its proper place would he somewhere after s. 102. ^,Rut the rule is set forth here, as it is more closely allied to the subject- matter of ss. 98-100, which envraerate the different kinds of pro- perty tnat may form the subject of a gift^

In ill. (a), the nephew could not claim to continue the suit as donee^ for the gift is not complete. *

As to'ill. (b), itj may be stated that the suit would ncfi lie, even if B were authorized by A to sue Z to recover possession. The reason is that the gift being inchoate, B has got no rig'at to sue. We are unable to concur in the view taken by a learned writer, that the gift could be completed by B by instituting a suit against Z and recovering possession in A's lifetime ; for siich a suit cannot lie at all, not even if it was brought by B with A's authority ancl on his behalf *(s). The mistake has arisen from a misapprehension of a passage in the judgment of the Privy Council In Mahomed Buksh V. Hdsseini Bibi {^i). The said passage,.runs as folbws : _ _ __ - -

(«) ^ See Sr R. K. Wilson's Di^'est of Anglo-Muhammadan Lew, s. 306.

' (0 (1888) 15 Cal. 684, 702 ; L. R. 15 I. A. 81. c

^ (

* • GIFTS. ]05

^ ''In this case it appears to their Lordships that the Im^f did all she could do to perfect tne contemplated gift, and that nothing more was require<l from her. The gift was a^tencletl with t\e utmost publicity, the^hihanama itself authorises the donees to take possffftsi%n, and it appears that, m fact thev did take possession. Their Lordships hold, unfler these circumstances, that there can be no objection to the gift on the ground that Shahzadi had not posaessyDn, and that she herself did nc^ give possession at the time."

The above passage must be read in the light of the facts of the case. The facts do not'show that the subject of* th* gift was in the hands of any person claiming adversely to the donor, or that the donees recovered possession by a suit or other legal pyoceed- ings. It was a case of a gift of an undivided share ^y an heir of a deceased Mahomedan to her co-heirs, and the* co-heiA, it seems, took possession of the whole of the inheritaifbe including the share of the donor without any litigation.

102. Tender, acceptance, and seisin. — It is

essential to the validity of a gift that there should be a declaration ol gift by the ^onor, and acceptance of the gift by the donee ; and that possession should be taken by the donee of the thing given at the time of acceptance, or, if at a subse(5^uent period, with the express permission of ^le donor. Buf where the sui)ject of the gift is not capable of actual possession, the gift may be completed by any act on the part of the donor which may have the effect of transf.erring the ownership.

Expladation — Registration of a deed ©f gift is not an adequate substitute for seisin.

llhistrations.

(a) A gift of lands in the occupation of tenants may be completq,d by a request by the donor to the tenants to attorn to the donee : Shaik Thhram v. Shaik ISulevian (1884) 9 Bom. 146, 150. [Here the request to thf tenants to > attorn, to the donee is ai> act on the part of the donor which has the effect of transferring the ownership.] •

(b) A gift of Government promissory notes may be completed by endorsement and delivery to ihe d«5nee : Naicah Umjad Ally K\any, Muhumdee Beguvi (1867) 11 k. I. A. 517, 544.

(c) A gift of zamindari rights, held under Govertment, may be completed by mutation of names in the books of the Collec*)r : S^ijad , Ahmad Khan \. Xadri Bega/n (^IS95'/ IS. All. 1,

* t

106 MAHOMEDAN'LAW '

(d) A hands 'over to his wife a receipt passed to him by a Bank in respect of money deposited by him with the Batok, and sayl', "After taking a bath I jnll go to the Bank and (ransCer the papers to your name." The receip't contains in the, margin ^he words .'-nftt transf erabb ." A dies before the transfer is effected. The gift is void : Ag a Mahomed Jaffer V. Koolsom Beehee (1897) 25 C^l. 9, 17. [The receipt * being ^'not transferable," the donor's righ| to receive the ' money from the Bank cannot be transferred by a mere delivtry of the receipt.]

(e) A execfates'a deed of gift of a house belonging to him in favor of B. No sort of possession is delivered to B, but the deed is duly registered. The gift is not valid, fof registration does not cure the want of delivery by the doncf^: ifogulsha v. Mahamed Sakeh (1887) 11 Bom. 517, followed in Ismal v. Ramji (1889) 23 Bom. 682.

*Hed. 482; Bailliee513. See s. 98, above.

As regards seisin, a distinction ought to be drawn between cases where from the nature of the subject of the gift actual possession could not be given to the donee, and vases where such possession could be given to the donee (^u\ " There is no doubt that the principle of At..homedan law is that possession is necessary to make a good gift, but the question is, gasBCSsion of what? If a donor does no^. transfer to the donee, so far as he can, all the possession which he oan transfer, the gift is not a good one. As we have saJd above, there is,* in our judgment, nothing in the Mahomedan law to prevent the gift of a right tcf 'property. The doner vi\\\^\., so far as it is possible for /«em, transfer to the donee thatt, which he giveS, namely, such right as he himself has : but this does ndt imply that where a right to property forms the subject of a gift^ the gift will be invalid unless the donor transfer's, what he himself does not possess, namely,' the corpus of the property. He must evidence the reality of the gift by dive'sting himself, so far as he can, of the whole of what he gives" {v). Thus in Mahomed Buksh vMIosseiiii Bibi (w), their Lordships of the Privy •Council, in upholding p a gift of an undiifided share in the estate of a deceased Mahomedan by an heir of the deceased to her co-heirs, observed : '* In this case it appears to their Lordships that the ladu did all shej^ould to perfect

00 MuUick SAhdool Guffoor v. Muleka (1884) 10 Cal. 1112.

(v) (1) •Anwari Begam vSNizam-nd-Din Shah (1898) 21 All. 165.

(zo) 1888) 15 Cal. 684, L. R. 15 Uk. 81.

GIFTS. 107

the contemplated gift^ and that nothing more wri required from •her." In ^act, in considering the question* of delivery of pessession, regard must be had to the nature of the property which foims the subject of the gif^ If the gift be of a sWre of inheritance not yet divided off, as in the I'rivy Council case cited above, it is impossible for the douor to deliver actual possession of the share, and the gift mayithen^De completed by any 'act on the part of the donor which may have the effect of transferring the ownership. And this, it^ was held by their Lordships, was done by the donor in the above case. ^

103. Gift of property in possession t)f donee. —

AVhere the subject of the gift is» ah-ea^y in the possession of the donee, the gift may be complefed by declaration and acceptance, without formal delivery and seisin.

'» Illustrations.

(a) A gift of a property in tiie possession of a bailee, a trustee, a tenant, a lessee, a pleagee, or a mortgagee, may be completed without formal transfer of possession : Heel. 484 ; Baillic, 514.

(b) A makes a gift of a house to a servant in his employ for the collection of rents. There is no evidence of any ," overt act showing transfer of possession of the propert3\" jThe gift is void, for a servant or ai:>agent for the c,o]lection of rents cannot be said to be in "possession" of the property of which he collects the rents : Valayat Hosse'ni v. Maniran (1.^79)5 C. L. K. 9]. *

Hedj484 ; Baillie 514. > ' »

> » •

104. " Mushaa " defined. — " Mushaa' is an un- divided J^hare in a property whether movable or immovable.

It is not to be suppo^d that the term mushaa is restricted in its meaning to an undivided share in a property capable of partition.

, 105. Gift of mushaa. — (1) A valid gift may be made of an undivided share {mushaa) in property which is not capable ^f partition.

(2) A gift of an undividecl share ^muf^haa) in property which is capable, of partition is invalid*

108 MAHOMEDAN LAW <

(fasid), buAnot void (batil) : the gift being merely invalid, it may be perfected and. rendered valid' by subseq^uent partition and deli very ^to the donee of the doifbr's share. . * '^ * *'

c

Exception. — But wheil3 a property which is capable of partition is h^ld by ^evqial co-sharers, any one of them may make a valid gift of his undivided share {rnushaay to anv one or mors of the other co-sharers.

' j_ Illustrations,

c of Suh -section (1) — (a). A, who is the owner of a house, makes a gift

tq B of the house ancl*of her right to use a staircase held by her jointly with the owner of an ad-joining house. The gift of A's undivided share in the staircase is valid, for it is a gift of mushaa in property not capable of partition. Kasiiti Husain v. Sharif -un-Nissa (1883) 5 All. 285.

()/ Sub-section (2) — (b). A makes a gift of her shave in certain lands to B. The share is not divided off at the time of gift, but it is sulsequeiitly separated, and possession thereof is delivered to B. The gift is valid : Muhammad Mumtaz Ahmad v. Zuhaida Jan (1889) 11 All. 460, L. K. 16 1. A.205. €^

of deception — (c). A Mafiomedan female dies leaving a mother, a son,

and g. daughter, as her only heirs. The mo^ier may make a valid gift of her

share, before division, either to the son, or to the daughter, or jointly to the

son and daughter : Mahomed Buksh v. Hosseini Bihl (1888) K Cal. 684,

701, L. K.,15 I. A. 81.

t

(d). A, K, and C are co-sharers i ma certain zamindari. Each* share is separately assessecfljy the Government, having a separate number in the Collector's books, and the proprietor of each share is entitled to collect a definite^share of the rents from the ryots. A makes a gift of fcis share to Z without a partition of the zamindari. The gift is valid, for it is not a gift ^strictly of a mushaa^ the share being definite and marked off from the rest of the property : Ameeroonnism v. Abadoo7iissa (1875) 15 B. L. R. 67, L. R. 2 I. A. 87. *

H^d. 483 ; Baillie, 615-517. In Muhammail Mumtaz v. Zuhmda JaUy upon which the second illustration is based, their Lordships of the Privy Council observed,: " the doctrine relating to the invalidity of gifts of mushaa is wholly tinadapted to' a progressive state of sociel^, and ought to be confined within the strictest

rulis." • *

c

^ • GIFTS. 109

The term mashaa is derived from shuyuu which lignifies confu- sion.' An undivided share is called mushaa^ because of the confusion that might likely arise in tVe en^'oyment of the ;^roperty, if a gift W(?re made of an undivided siiafe in ^he property bygone co-sharer to ^ stranger. No such confusion cin arise, if the gift be by one co-sharer tOi^nother co-sfiarer. Hence the rule of the Hanifa lawlhat when a property E^ld by severa} co-sharers is capable of partition, the gift of an undivided share in that property in favor of a stranger does not tabe effect until the share is divided off from the rest of the property, and possession tiiereof is delivered to the donee. " Seisin in cases of gift is expressly ojdoine(J, and consequently a complete seisin is a necessary condition :" Heel. 483.

Madras Presidency, — The Mahomedar* law of gifts 'is administered in the Madras Presidency as a matter of equity and good conscience^ and the High Court of Madras has accordingly refused to adopt the doctrine of musliaa on the ground that it is *' wholly unadapted to a progressive state of society," and therefore opposed to equity and good conscience ^ic). See s. 6, above, and the notes on s. 2.

Shah law. — Under the Shiah law, r^ gift of a mushaa in pro- perty capable of partition is equally v^lid with a gift of mushaa in

property not capable of partition : Baillie, Part II., 204. ■> )

106. Gift to two donees. — A gift of ppperty which is capabfe of partition to t^o persons jointly is invalid, but it may be rendered valid hj» subsequent possession, on the part of each donee, of a specific portion of, the property. * ,

Illustration. A makes a gift of a house to B and C without making any division of»the property at the time of the jift. Subsequently B and C divide the property? and each takes possession of a specific portion. The gift becomes valid by subsequent division and ^possession. •

Hed. 485; Baillie, 516 ♦ The principle of the present section

does not apply to a aadaka or a pious gift. Hence if a gift be

» made of property capable of 'division to two poor men jointly, the

gift will take effect at once. •»

^ ,

(«) Alabi Koya v. Mnssa Koya (1^901) 24 Mad. 513.

1 .

110 MAH0MEDAJ4 LAW ' ,

\

Shiah Xae^^y — Under the Shiah law a gift of property to two or more donees is valid, though no division may be uftide either at the time of gift or snbsecfUentty : Bailli^, P<^rt II., 205.

107. Gifts to unborn persons. — A gift to a

person not yet in existence is void : but a *^ gift iliay

be made to a chiW i^ the womb, provided it* is born

within six months from the date of the gift. « . f

See notes to s. 83, above. 4

1Q8. Gift to 'minors. — A gift to a minor or to a lunatic, ma;^ be completed by delivery of possession to his oruardian. «

Hed. 484. " When''[the donee] is a minor, cr insane, the right to take possession for him belongs to his guardian, who is first his father, then his father's executor, then his grandfather," &c.: Baillie, 530. A mother has no right to the 'guardianship of the property of her minor children, unless shf is appointed guardian by the Court. *

109. Gift by father to minor child. — Ntj* change of possession is necessary for the validity of a gift by a father to his mipor child, or jiy a guardian to his ward, ,.

Hed. 4^4; Baillie, 529.

«

** Wher% there is on the part <)f a father, or other guardian, a real and hond fide intention to make a gift, the law wifl be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the minor :•* Ameeroon- nissa v. Ahadoonnissa (y).

A gift by a mother to her infant child does require a transfer

of possession from the mother to the father, if the father is alive,

for the father is the primary natural guardian, of hi^ infant child.

And if the father is dead, the possession .laaust be delivered to the

father's executor or the grandfather, unless the mother is appointed

guardian by the Court, in which, case bo change of possession is

necessary, for Jt is then a gift by a guardian to a ward.

% *

Cy) (1875) 15 B.L.R. 67, 78, L. R. 2 L A. 87.

% » *

GIFTS. ' 111

•> ■»

110. Gift by hnsband to wife. — A g?ft by a hus- band to his wife o£ a house in which the}:(are residing at the time,^ is not iiivahd, merely because the husband continues to receive the rents 'and 'to live in tho house after the making of the gift {zf.

**'-The relalion of husband and wife, and his legal right to reside with her an^d to manag^ her prot^erty,-, rebut the inference which in the case of parties standing in "a different relation would arise from a continued residence in the house after the^mabing < f the

hibay and in the husband generally receiving the rents of

that house" (a). Contrast Bava Sahib v. Mahomed (18^6) 19 Mad. 843.

111. Gifts infaturo. — A gift cannot be made to take effect at any future period (6).

Illustration, a) A executes a deed of gift in favor of B, containing the words *" so long as I live, I shall enjoy and possess the properties, and I shall not sell or make gift to any one, ^j^ut after my death,«you will be the owner." The gift is void, for it is not accompained by de. Jvery of possession, and it is not to operate ttw^iZ a/iter the death of A: Yusuf Alt v. Collector of Tipperah (1882) 9 CaXlSS ; CheUene Kutti y. Ahmed (1886) 10 Mad. 196.

The rule is so stated in Maonaugiten's Mahomedan Law, at p. 30. It is a corollary of the proposition that a gift is not ?alid unless it i^^accompanied by possession : see s. 102, above.

112. Gifts with conditions — When a gift h made subject to a condition which derogates from the completeness of the grant, the condition^ is void, and the gift will take effect as if no cQndition were attached to it. *

But it has been held by the Privy Council, that if a gift of property is made subject to a condition that the donee shall pay the produce or income of

__JL ' >

(z) A7nina Bihi X. Khatijct Bibi (1864)1 B.H.C 157; Azim-un-Nissa V. Dale (I860 6 M.H.C. 455; Enmalai^. Hajiralal (1888) 13 Bom. 352.

(a) Per Sausset C.J., in AmirxiBihi v. KhatijaBihl (1864) 1 B.H.C. l57, at p. 162.

(V) Macnaughten, p. 30. -^

112 MAHOMEDAN LAW

the properti^ to the donor daring his Hfetimey

both the gift and the condition are valid (c).

« 'J

4^ IllyLStrations. (a)'- A gift of a house is mac^e to A for life, a'lid after his death to his brother. The condition that A shall have the house /or l\ff. is void,. and he takes an absolute interest, a^if no condition was attached to the^ift: Hed. 489. [Under the Hanafi^^law a grantee 'of a life-esta|:e takes an absolute estate : yi2;a??<«<?^i« V. .4 ftii'W.Z Gafur (1888) 13 Bom. 264, 275; s. c. on appeaj, 17 Bom. 1, £■•] ,

(b) A makes a gift of Goyernment jiromissory notes to B, on condition that B should xQinYU & fourth parf of the notes io K after a month. The condition isf vpid, and B takes an absolute interest in the notes : see Bailliey 588 ; lied., 488. [Here the condition relates to the return of a part of the corpus.] f

(c) A father makes k gift of Government promissory notes to his son on condition that the son should pay the interest to the father during his lifetime. Both the gift and the condition are valid ; JS^awab Umjad Ally V. Mohumdee Begiivi (1867) 11 M. I. A. 517. \^Qncere whether the condition would be good, if it were not contined to the payment of interest till the donor's death 1 ]

(d) A makes a gift of his mansion to. B on condition that he shall not sell it, or that he shall sell it to a particular individual. TH '^^onditions are void, and B takes an absoT,ute estate in the mansion : Baillie, 538.

Hed. 488, 489 ; Baillie, b'dh 540. ,As to ill. (c), it may perhaps be asked, — doesnot the condition for the payment of interest to the donor derogate from the completeness of the gift ? The answer is that it does, in that the donee is deprived of the income during the donoi's lifetime : that it does not, in that the donee's dominion over the cordons is not affected by the condition. This latter would seem lo be the ground of the Privy Council decision. If so, a condition which does not deprive the donee of dominion over the corpus^ and leaves that dominion complete and entire, is not a condition which derogates from the completeness of a grant within the meaning of the present section. In this viewy the section may be read as follows :

" When a gift is made subject to a condition which derogates from the con\pleteness of the grant so as to ^deprive the donee of dominion, or any

(c) See the c«se cited in ill. (c).

c

( c

, GfFTS lliS

/ sk»re of dominion, over the corpus of the property given 'p the donee, the

<;ondUion is void, and the gift will take effect, as if nJ condition were

attached to it."

The linfitation in italics is suggested by the words of ''their Lordships of the Privy Council in the case ncfw under review. At p. 547 of the report^ their Lordships say: "It remains^ to be considered Nvhether a real trant^ler ot property by a donor in his lifetime. under the Mahomedan law, reserving not the dominion over the corpus of the propeity, nor any share of dominion over the corpus^ but simply stipulating for and obiaining a right to the recurring produce during his lifetime, is an incomplete ^ift by the Mahomedan law." Their Lordships held thafc^it was '^ot.

Note that the effoct of the conditions in iHs. (a), (b) and (d), is to restrict the donee's dominion over the corpus of the property ; but the condition in ill. (c) has not that effect.

Sfiiah law. — Under the Shiah law, when a gift is made subject to a condition, both the gift and the condition are valid (Am^er Ali, Vol. L, 77, 78, 85).

113. Revocation of gifts. — A gift may be revoked, even after delivery of possession, except in the following cases : —

(1) when the gift is made by a husband to his wife, or by a wife to her husbancj ;

(2) when the donee is related td the donor within the prohibited degrees :

(3) when the donee is dead ;

(4) when the thing given has passed out of the donee's possession by sale, ^iift, or otherwise ;

X5) when the thijjg given is lost or destroyed';

(6) when the thing given has increased in valine, whatever be the cause of the increase ;

(7) when the thing given is^ so changed that it

114 MAHOMEDAN LAW

cannot be i^mtified, as when wheat is converted into flour by griiiding ; c - ' '

(8) when the donor has received something in exchange for the gift ;

(9) when the gift is a sadaka, made with the object of acquiring xuerit i'i the sight of God, e, (j., alms to the poor.

Explanation I. — A gift can be revoked by the donor alone^^ and not by his heirs after his death.

Explanation T[. — A gift once completed can only b6 revoked by proceedings in a Court of law for cancelling the gift.

Hed. 485 ; Baillie, 524-528.

Shiah law, — The Shiab law differs from the Uanaii law in the Following particulars :

(a) a gift to any blood relation, whether within the.prohibited degrees or not, is irrevocable ;

(b) a gift by a husband to his wife, or by a wife to her husband, is, according to the better opinion, revocable (Baillie. Part II, 205).

114. Hiba-bil»ewaz. — A hiba-hil-ewaz is a sale in all respects, rnd delivery of possession is not neces- sary to validate the transaction.

Illustrations,

(a") A Mahomedan husband executes a^ deed in favor of his wife, purporting to give to the wife certain lands belonging to him in lieu of dower due to her. The wife is not put into possession of the lands. The transaction is a hiba-bil-ewaz, rnd it is valid without delivery of possession : Muha.iimad Esuph v. Pattamsa Ammal (1889) 23 Mad. 70.

(b) A executes a deed purporting to give a house to B in consideration

of B > having "with cordial affcctioi'i and jove, rendered service to me,

maintained and treated me with kindness and indulgence, and shown all

sorts of favor t( me." ^o.-session of the house is not delivered to B, The

e gift c'8 void, for it is not a hibd-bil-ewatf but a hiba pure and simple, and

GIFTS 115

seisin is therefore necessary to validate the gift : Jiahim Bakhsh v. Muhammad Hasan (1888) 11 All. 1. 4

Baillie, 532, 533. Aiba-bil-ewaz means literally a gift for an exchange. The trancrfctidn being a sale, it will be gov^rn^d by the provisions of the Contract Act, 1872, rejating to Sale.

115, Hiba-ba-shart-ul-*ewaz. — A Mba-ha-^harU ul-eivaz* or 'd gift made on*dionSitir>n df a7i exchange is a gift in its inception, and continues to ^e so with all the legal incidents of a gift, until the performance of the condition by the donee, when it becomes^a sale.

Baillie, 534 ; Ameer Ali, Vol. I., 102. *

•

t

•

• •

• • • •

•

116

^ CHAPTER IX. Wak'Fs.

lt6. ** Wakf ' .deficed.— A 2/7a/L/ is a dedication in perpetuity of specified property, whether movable (d) or immovable, to charitable or religious uses, or to objects of public Ufcility. "

Illustrations.

(a) Property is dedicated to the purpose of providing an iinani for a mosque, and a professor for a inadresa (college). This is a valid loakf : Baillie, o65, 536;

(b) A dedication ^or the purpose of maintaining a private tomb (as disttnguished from the tomb of *a saint), or for reading the Koran at the tomb, or for the performance of ceremonies in honor of the deceased at the tomb, is not valid, for " these observances can lead to no public advan- tage": Kaleloola \. Nuseerudeen (^189i) lb Mad. 201. [The soundness of this decision is open to question, and it has in fact been questioned by- Mr. Justice Ameer Ali in his work on Mahommedan Law, Vol. 1, p. 389. If the decision be accepted as good law, the result will be that no wakf can be created for private religious uses.]

(c) An appropriation for the performance of ceremonies known as fateha and kadam sharifiQ lawtul: Phul Chand v. Akhar Yar Khan (1896)

19 All. 211. * *

(d) A Mahomedan conveys a house belonging to him to tru£'ces upon trust out of the income thereof to feed the poor for the period of a year, and after thj expiration of the year, to reconvey the hcase to him. This is not a valid loakf^ for the appropriatiqri is not permanent, but for a Mmited period only : ^Bailli-, 557.

Hed. 231, 234. ; Baillie, p. 519 (as to the definition of wa/cf), p. 557 (39 to perpetuity being a necessary condition of wakf)^ pp. 561-563 (as to the subjects of wakf)^ pp. 565-667 (as to the objects of wakf).

The term wakf literally means detention. In the language of law it signifies the extinction of the appropriutor's 'ownership In the thing dedicated, and the detention of the thing in the implieti ownership of God, in such a manner that its profits may revert to or be^ applied for the benefit of mankind (Baillie, 550). In the

id') , Ahu "^ayid v. BaJtar Ali'ildQl) 24 All. 190.

c c

^ • . WAKTS 117

following sections we have used Rometrmes the word " endowment " • and sometin^8 •' approftriation " as the English equivalent of wahf.

in. Person^»capable of mrfkin^ wakfs.^^very

jVIahomedan of souikI inind* d\M\ n<^t Ji minor raay dedicate tiis property by w^y of icakf,

Baillie^552. See as to majtrity, ^ot«s t(i5. 78 ante,

118. Form of^wakf immaterial.— r^ A • i^^a^/ may

be made either verbally or in writing.

It is not necessary to constitute a y^^a^/* t^at th^ term '^wakf^' should be used in the grant (e); and. converse- 1 \ , the mere use of the word ^^'icatt*^^ is not sufficient to constitute a*wakf (/). What is essential for the creation of a loakf is that the words of transfer should be direct, express and explicit ((/).

Note that the provisions of the Indian Trusts Act II of 1882 do not apply to wahfs (s. 1.), •

119. .Wakf may be testamentary or inter vivos.

— A i/^akfmaj be created by acfr iiiter vivos or by will.

A testamentary waJcf is a dedication .which is to conft into effect att«r the testator's death. Though it was held at one time that a Shiah cannot create a wahf by will, it has be^ recently held by the Privy Council that a Shiah, can create a valid wakf hy will {h). . • . •

120. Limits of power to dedicate^ property by way of wakf.-^— A Mahomedan raay dedicate the whole or any part of his propwty by way of wakf ; but a imkf made by will or during marz-ul-maut cannot take

Xt^ JeioHTt Doss Y.'Shah Kubeer-ood-Deen (1840) 2 M.I.A. 390. • * (/•) Abdul Ganne v. Hussen Miya (1873) 10 B.H.C.|7 ; Abdul Gafur v. Nizamudln (1892) 17 Bom. 1, L.R. 16 LA. 170 ; Abdul Fata MahomeU v. Rasamaya (18^4) 22 Cal. 619* L.R. 2? I. A. 76.

(</) Saliq-un-nissa v. Mati Ahmad (1903) 25 All. 418. •

(/t) Bahar All Khan v. Anjuvmn Ara Bcgam (1902) 25 Alt. 236. • •

* •

118 MAHOMEDAN LAW ^ ,

r

effect to a larger amount than the bequcathable third, without the consent of the heirs.

Hefi. 233 ; Baillie 650.' A testamen'car^ wakf is butr.s bequest to charity, and is t^herefore governed by the {(revisions of s. 81 ante. r *

c

121. Completion'ofVaKI.— A wakf inter vivos is completed^ according to Abu Yusuf , by a mere declaration of endowment by the owner ; but accord- ing to'' AhuMuhummed, a wakf is not complete, until a MiitawaHis appointed by the owner, and possession of the property is' delivered to him. r

Hed. 233 ; Baillie, 550. In Muhammad Aziz-ud-Din v. The Legal Remembrancer (t), a Sunni Mahomedan executed a deed purporting to be a ivak/nama^ and appointed his sons the first mutawalis of the property. The deed was registered, but possession of the property was not delivered to the sons. The settlor continued in possession till his deato, and it was found that he never spent any portion of the income under the te-ras of the deed. Upon these fad'^^s, it was held by the High Court of Allahabad that the ^^a^/ was incomplete, and that the property passed to the settlor's sons as his heirs on his death. On behalf of ttie Legal Remembrancer it was contended that the wakf becaiSie complete on the execution of the deed, find the opinion of Abu Yusaf was cited in support of that contention. But the Court preferred to follow the opinion of Abu Muhummed, and helci that the settlor having retained exclusive proprietary possession, and never having employed any portion of the income for the purposes mentioned in the deed, tl^e wai/was inoperative and invalid. But what if the settlor had employed the income of the property for the purposes specified in^ the deed, in otLer words, what if he had acted upon the deed? In such a case, it is couceived, that the settlor's declaration, combined with his conduct, would have been sufficient to establish a; wakf. There is much in

(i). (189ii) 15 All. 321.

( c

, > WAKPS 119

the judgment of the Allafiabad Court to support this yiew. Thus *at p. 322, the> learned judges say: "The learned iu<\ge below seems not to ha?e considered the effect of the appropriator's conduct in never giN'ing possession and in making no change whatever with regard to th^ property dealt with,'' And at p. 3^3, the learned judges obserye : "We find therefore tha^ in respect of this wakf, the income of which was never employed i'or ^he declared purpoecy the appropriator having retained exclusive proprietary possession,

there was never s% valid and operative wakfy but an

inchoate endowment only."

The question whether delivery of possession to % mutawali is essential to the validity of a wakf was considered in an earlier case (y), where the learned judges observe : "After obtaining -all the information we are able to collect through the means of our Monlvies and a reference to authorities, we are of opinion that the opinion of Abu Yusuf ...... must be considered as the

law now prevailing and sanctioned by the more recent authorities.*' This case does notf appear to have been referred to in the Allahabad case cited above.

122. Revocation of wakf»— A wakf inte?' vivos once completed canvot be ' revoked. But a wakf made ^by will may be^ revoked by the owner at any time before his death.

Fatmahibi v. Advocate^General (1881) 6 Bora. 42. *Hed. 232, 233 ; *Bail)je, 550, 591. A testtimentary wakj being "but a bequest to charity, may be revoked like any other bequest : see s. 86 ante,

123.' Wakf of Mushaa.-— A mw.9Aaa or an* undiv- ided share in a property may, according to the more approved view, form the subject of a wakfy whether the property be capable of partition or not.

^ Exception. — The wakfoi a mushaa for a mosque or a tomb is not valid.

Hed. 23^ ; Baillie, 56»4. The approved opinion above referred

» (/ ) Doe d. Jaun Beebee v, AhdooUah (X^'^^) Fulton's Reji. 345,

» » »

I'i© MAHOMEDAN LAW

to ia that ot Abu Ynsuf . According to Abu Mnhammed, the wakf of & musfut,a in property capable of partition is^ot valid, for he holds that deHvery of possession by the endower to a mutavali is a cp^ndltion necessary to the validity of ^ wakf;se2 s. 121 aboye. See, as to mushaa, s. 105 above. ■

124. Contingent waki not valid.— It is essential to tHe validity €>f a hakf that the appropriation should not be made to depend on ^a contingency.

Illustration, A Mahomedan wife coiiveys her property to her husband upon trust, to maintain herfeel^ and her children out of the income, to hand over the property to the children on their attaining majoritjj and in the event of her death without leaving children, to devote the income to certain relijgious uses. This is not a valid wahf, 'lor it is contingent on the'^death of the settlor without leaving issue : Pathvhntti v. Arathalakutti (1888) 13 Mad. 66. Baillie,556. '

125. Wakf property is inalienable and inherit- able.— When property is dedicated^ to religious or charitable uses, the ownership is deemed to be trans^- ferred from the dedicator to the Almighty, ' aiid the property cannot therefore be alienated by him or by any other, nerson, nor can it pass to tis heirs on his death.

Hed. 231, 232 ; Baillie, 550, 551.

126. ^ Persons interested in impeachiiig the validity of a wakf. — As , wakf prcvperty is inalienable" and inheritable, tlie persons interested in impeaching th<e the validity of a ^imkf are generally the crecjitors of the settlor and his heirs,

" Family Settlements by way of Wakf.

127. Operation of wakf may be postponed. — It

is not, necessary to the validity of a iva'/cf that ifc should come into effect at once. '^'

^ Illustralion. ^ , i

A Mahomedan wife conveys her housS to her husband on trust to pay the income of the houai to her durint' her lifetime, and from and after htr d^eath ,to deVote the whole of it to certain charitable purposes. This is

Wakfs 121

a valid wakf^ though the charitable trust is riot to come into effect till -After the founder's death: see Fatmabibi v. Advocate- C^tt^ral of 3om7jay (1881) 6 Bom.'*42, 51, 52 ; ^/ed. 237.

128.* Family settJements'in perpetuity.— It i§ not

necessary, to the validity of a wakf'ttat it should be confined exclusively to religious or charitable purposes. A fcak/ina^y include pro\^sions fipr tjie benefit of the founder, or of his descendants or other relatives, including persons not ^^t in existence (ifc), * and effect will be given to these provisions^ subject to the conditions set forth m the next following section, though the interests which the beneficiaries succes- sively take, may constitute a perpetufty (/),'*

But a mere settlement for the benefit of the settlor's family in perpetuity, not accompanied by any endowment tt> religious or charitable uses, is void, and it will not Ije rendered valid by the mere use of the word ** wakf " in the settloment.

"^ Illustrations.

(a) A Mahomedan conveys his property lb his son upon trust to support out of the income thereof such sf his " descendants and kindred" as might be *' in great want and need of support," and to'devote the surplu^of the income to Certain charitable purposes. This is a valid wakf : DeoM Prasad V. Jnait-uUah (1892) 14 All. 375. [But the wa^/ would not be valid if it was not confined to ftie poor relatives only of the settlor: see the next section.? » . •

(b) A executes a deed purporting to settle in iva7{f certain immoveable properties on^^his wife, his daughters, and their descendants **from genera- tion to generation." The deed is not valid as a wakf, for there is no dedication whatever of any part of the property to religious or charitable uses: Abdul Ga/ur v, Nizamudin (1892) 17 Bom. 1, L.R. 19 l.A.*170. [The use of the word '* waSf" in the deed is " only a veil to cover arrange- ments for the aggiandisement of the family and to make the property ina5ienable ; " MahomM Ahsanulla v. Amarchand Kundu (1889) 1,7 Cal. 438,611, L.R. 17 I. A. 28.] »

• — . * ■ .

(A:) Mahomed Ahsanulla v. Amarchand Kundu (1889) 17 Cal. 49i», 509, L.R. 17 I.A. 28. ,

(Z) Fatmabibi v. Advocate- Genera I (1881) 6 Bom. 42, 51. * *

>

122 MAHOMEDAN LAW

• r

Note'-'The document cannot be supported a& a family settlement^ for it creates a perpetu^^.y which is opposed to the spirit of the Mahomedan Law (/«). The only case in which the Mahomedan l&w allows a jierpetual family settlement is when it forms part of a wakf^ provided that there is a svb- «^rtw</rZ dedication of the prope]{'ty,to religious or' charitable nies at .tojuc period of time or otltec ; the reason being that in that case, the gift to charity comes to the rescue of the fpmily settlement, which, without i^r, is void. < r * r

It is conceived that documents purporting to be family settlements are governed by tke rules of the Mahomedan LaW of Gifts. Applying these rules to the facts of ill. (b) it will be seen at once that no descendant of the settlor who was notSn existence at the time of gift can take under the deed, foV t gift to persona not yet in existence is void (s» 107 ante). In the case cited in ill. (b), the only persons who were in existence at the time when the so-calleSi wakf was made, were the settlor's wife and his two daughters. These alone bould therefore take under tlic deed, provided the settlor had relinquished possession of the property, and seisin had been taken in the settlor's lifetime by each of the three donees of her share (ss. 102, 106 atite). It was not so, however, in the case upder consideration, nor could it have been so, for the settlor's object was to give only a life intereH to the wife and the daughters. <

In Abul Fata Mahomed v. Rasamaya (n), it wa8 contended before their Lordships of the Privy Council that the creation of a family endowment was of 'itself a *' religious and meritorious act" accor(?cng to Mahomedan law, and ths^ it therefore came within the definition of wakf. But this contention was ovem^ed, and it is now established that a settlement in favour of the settlor's children and his descendants is not valid, tlnless there is a Bubstantiardediqation of the prcfperty to religious or cHaritable purposes (see the next section).

It hag already been stated above that waif property is inalien- able (s. 125 above). At the same time it is to be remembered that ivakf property alone is inalienable, and that all other property is alienable. It therefore frequently hapi^ens that Mahomedans desirous of keeping their property in their family fettle the pro- perty "on their children and their descendants in perpetuity, and use the term ** wakf in the settlement believing that the mere

"1

(w) Abdul Gannev. JIussen Miya (1873) 10 B.H.C. 7, 11: Nizamudin v. Abdul Gafur (1388) 13 Bom. 264, 275 ; s.c. on appeal, 17 Bom. 1, 4.

(w) (1^4) 22 Cal. 619, L.R. 22 I. A. 76.

WAKFS 123

use of that term is sufficient, to make the property inalienable. But these attempts ars ineffectual, for it has be^ held that the mere use of the term S^wahf* is nx)t soificient to impress on the property tlie character of wahf so a« t-o make it inaliennnle:* To hol4 otherwise would be to *' enable every pei'feon by a mere verbal fiction to create a perpetuity of any' description " (o), and it would be to "make words of more "^egarH than M/n^s, and /orw mofe than sifhstance ^'* (/>). ^ee s. 118 above.

129. Family settlements by way of wakf, when void — When a wakf comprises family trusts a^s well as religious or charitable trusts, the provisions in favour of the founder's family can tc;ke effect only if " there is a substantial dedication of the propt rty to [religious or] charitable uses at some period of time or other." But if the primary object of the wakf be the •' aggrandisement of the settlor's faruily," and the dedication to religious or charitable uses be "illusory "or "colourable," the provisions for the settloi'^sv family are void, and no effect will be given to them (q), . ?

^

Explaration. — *' A^'gift [to charitable or religious uses] Viiay be illusory whether from its small' amount or fiom its uncertainty and remoteness" (?')^

> lUuatjntions. ,

(a) Two Mahomedan brothers execute a deed purporting to make a wak/ of all their immoveable properties for the be^^B^t of their children and their descendants " from generation to generation," and on total f^^ilure of all their descendants, for the^benefit of widows, orphans, beggars, and the |K)or. The provisions for the settlor's children ami their descendaiit,s are

00 Jbdid Ganne v. Hussen Miya, (1873) 10 B.H.C. 7, 14.

\p) Abdul ^ata Maftomed v. Rasamaya (1892) 22 Gal. 619, 634.^ ' (§') Mahomed AhsamuUi v. Amarchand Kundu (1889) 17 Cal. 498, L.R. 17 I.A, 28 ; Abdul Gafnr v. Nizamudin (\%^2) il ^om. 1, L.R. 19 I.A. 170 ; Abvl Fata Mahomed v. Rasamaya (1894) 22 Cal. 619, L.R. ' 22 I.A. 76 ; Mujib'un-nissa v. ^Abdur^Rahim ^1900) 23 All. 233 ; liikani Miya v. Shuk Lai ( 1892) 20 Cal. 116 ; Fazlur Rahini'Y. Mahomed Ohednl Azlm (1903) 30 Cal. 666. ^ >

(r) Abul Fata Mahomed v. RasamayaXlSdi) 22 Cal. 619, 034. ,

/•

124 MAHOMEDAIJ LAW

void, for the gift to the poor is illusory by reason of its remoteness : Abul Fata Mahomed ^. Rasamaya ( 1894 ) 22 Cal. 619, L.R. 22 I. A. 76. ..

]\'ote. — Here the grift to charity is too remote, for the poor are to take nothing, '"until the total extinction of the blood"" of the settlers, whether lineal or collateral." The document professes to create a vmhf^ but, in reality, the settlors' relations are the only objects of their iJounty, 'The poor have been put into the settlement merely tc-give it a colour of piety, and so to legalize arranjemt'iits meant to serve for the aggrandisement of a family," Contrast this with the following illustration, and with ill. (a) tos. 127, above. 4

(b) A Mahomedan conveys ceitain lands to a wutaivali with directions out of »the profits of the lands to defray the expenses of a mosque, to give alms to mendicants, and to utilise the surplus towards the expenses of the marriages, burials, an^, circumcisions of the members of the family of the wvtawali. This is a valid wakf: Muzhurool Iluq v. Puhraj Ditarey (1870) 13 W. R. 235.

(c) A Mahomedan executes a document purporting to be a deed of walif by which it is provided that Rs. 75 should be distributed annually among the poor, that Rs. 100 should be paid every year to each of his four sons, that on the death of any of the sons, his shf re should be paid to his ' 'successive descendants," that che surplus income should be accumulated and added to the endowed property, and that en total failure e* all the descendants of the settlor, the whole of the income should be distributed among '♦ the poor, the indigent ^nd the b%gars residing in the town of Dacca." The provisions in favour of the se.tlor's family are void : Bikani Mia V. S?iuk Lai (1892) '20 Cal. 116. ^

Note. — In this case there is not only an ultimate gift to charity, but also a concurrejTi gift to charity. The ultimate gift to charity could not support the family provisions, for it is to(? remote, as shown in ill. (a). Nor could the concuriient gift of Rs. 76 per annum validate th^ family trusts, for the amount of gift is too small compared with the provision of Rs. 400 for the settlor's family. In fact, the gift to charity is illurory, and the object is* manifestly to benefit the family, and to increase the family property as shown by the direction to accMihulate the surplus income.

(d) A deed purporting to be a wakfnama con*ains provisions similar to those in the last illustrat ion, with the difference that instead of the amount of the concurrent gift to charity being specified v'n the'^leed, it is ?eft entirely in the discretion of the mutawali. Here again the family trus*^8 are void, for the gift is illusory by reason of its uncertainty : Mvjih-un- nissa^, Ahdur Rahim (\9Q0) 2^ A\\i 2Z^.

(e) A deed purporting to be a wakfnama contains provisions similar to those in ill. (c)\ with this di^erence that instead of the amount of the

>* con&urreni gift to charity being specified, there is a diiection to the

WAKFS 125

> >

mutawcUl to "continue to penbrni the stated religious works according to custopa." No evidence of custom is given to show what amount would be necessary for the'performancS of the ♦' religious work." The average annual income of the property is Rs,, 13,000, while i^he c]?aracter of the "religious works" is n6t such as would absorb iporp than a devout and wealthy Mahomedan gentleman might find it becoming to sp^nd in that way. The provisions in favour of the settlor's family are void, as the charitable out- lays contemplated by the ;^ettlor are of siiu^ll amount compared wit^ the « property: Mahovied Ahsanulla v. An'urchand ^KuMa (1889) 17 Cal. 498, L.R. 17 I.. A. 28, ,

Note. — In the above case their Lordships of the Privy Council observed : > If indeed it were shown that the customary uses we^'e of such magnitude as to exhaust the income or to absorb the bulk of it, such a circumsfcanct? would have its weight in ascertaining the intention of the grantor." Accordingly, where a Mahomedan had dedicated certain property^^of whic\ the average annual income was K8.^850, to the performance ot/^teha and hadam sliarlf ceremonies, and it was found that according to the custom prevailing in the country the amount required for the ceremonies was Rs. 500 per annum, it was held by the High Court of Allahabad that the dedication to reli- gious purposes was substantial^ and that the waTif was therefore valid : Phul Chand v. Akbar Yai^ Khan (1896) 19 All. 211.

The mere fact that there is an ultimate gift for the poor, or even a concurreni^gift for them, will not support a perpetual family ±

gettlement, unless the gift to charity is Stibstantial, and not merely illusory (s). ** If a man ^fere to settle a crore of rupees.^ and' provide t^r^for the poor, that would be at once recognized as illusory. It is equally illusory to make a provision for the poor under which , they are not entitled to receive a rupee till after the total ex- tinction of a family ; possibly ^ not for hundreds ^f years ; possibly not until the property had vanished away under the wasting agencies of litigation or malfeasancfe or misfortune ; certainly not as long as there exists on the earth one of those objects whom the ' donors really cared to maintain in a high position " (t). , The test in all these cases is whether the property is in substance dedicated to charitable purposes, or whether it is dedictrted substantially to the maintenance, and

' 0_,

CO The decision to the contrary in ^Amrutlal v. S/taik Jfnsseht (1,88^) 11 Bom. 493 is no longer law : iee Abrl Fata Mahomed v. Rasamaya (1894) 22 Cal. 619, at p. 633.

(t) Abul Fata iVahomvd v. Rasamaya ^^1892) 22 Cal. ^619, 654; L.K. 22 LA. 76. ' . ,

126 MAHOMEDAN LAW

aggrandizement of the family estates fa; family purposes. In the latest Privy Oj^uncil case on the subject, where the question, was whether a document purporting to be a wakfnama was a valid deed of wakf^ their Lordships observed : ** It WiU be so, if the effect of the deed is to give "the pro^rty in substance to charitable uses. It will not be so, if the effect is to give the property in 'sub- stance to the [settlor's] family " (^). *

130. Effect of failure of family trusts upon religious charitable trusts.— ^It has been held by the High Court of Calcutta that when a wakf contains provisions for the benefit of the settlor's family, and there is also a concurrent gift to charity, the failure of the family trusts by reason of th»i gift to charity being illusory, does not involve the failure of the gift to charity.

Illustration. A Mahomedan executes a deed purporting to be a wakfnama providing for the payment of Rg. 75 per annum out of the income of the property to the poor, and Rs. 400 per annum to his children and their descendants "from generation to generation," Here the gift to charitv is illusory by reason of its small ness. The family trusts therefore fail, but the gift to charity is valid, Bikani Miya -v. Shuk Lai (1892) 20 Cal. 116, 194, 225. [BqgsI'uj Mahomed Ahsanvllav, A?narchayd Kundu (1889) 17 C^al. 498, 511, L.R. 17 l.A. 28].

The present section relates to the question of the validity of a concurrent gift to charity, when the family settlement fails by reason of the ^ift being illusory. It does not make any mention of the effect upon the ultimate gift to charity, under similar circum- stances. It is submitted that since the decisions set out in the preceding section, the failure of intermediate family trusts must be taken to involve the failure of the ultimate charitable or religious trusts. Thus in ill, (a) to the preceding section, the whole settle- ment, it is submitted, is void, including the ultimate gift to charity. No doubt, the judgment of West J. in Fdtmabibi v. Advoctxte- General (v) points to a different conclusion, but it must be re meniibered that the judgment in that case proceeded upon the

(?0 Mujih-Wi^nbssa v. Ahd^f Bahim (1900) 23 All. 23 All. 233, 242. (v> (18&l)6Bom.42.

WAKF8 127

theory, uo longer tenable, that **if the condition of an ultimate dedication to a pious and unlawful purpose be specked, the wakf is not made invalid by an intermediete settlement on the founder's children a'iid their descendants." ^Tjjat this is no longer lajy will be seen fron& the decision of the Privy Council set out in ill. (a) to the preceding section.

Of Mutawalis or Manaijers of endowed Property.

131. Who may be mutawali. — A dedicator may appoint himself (w) or any other person, even a female {x) or a non-Moslem, (?/), to be mutawali 'of wakf property, provided the person so appointed is of sound mind anjj not a minor (z), ,

But where the wakf involves the performance of religious duties, such as the duties of a sajjada-nashin (spiritual preceptor), a muezzin (crier), or a khntih ( Koran-reader), neither a female (a) nor a non- Moslem (6) is competent to perform those duties, though they nia} perform such of the duties attached to the wakf as are of a secular nature. >

132. Appointment of new mutawalis. — W^hen- everany person appointed a mutawali dies or refuses to act in the trust, or is removed by the Coprt, and there is no provision in the deed of wakf regarding succession to the office (c), a new mutawali may be appointed by — ,

(a) the founder of the wakf, if he be alive ;'or

(b) his executor, if any; and if there beMio executor, by '

r ' J

(wO Advocate- General x.Fatima (1872) 9 B.H.D.L. 19. ''

(jt) Wahid All v. Ashri^f Hossain (1882) 8 Cal. 732. (;//) Ameer Ali, Vol. 1, 348 ^ j.

(2) See Pi.'am V. Ahdool^Karhi (\%n) \^ QaX 20X in) rinssain Bethee v, Hussain ^Iwrif (1868) 4 M, H.C. 23; Ibran- hihl V. Hussain Sheriff (1880) 3 Mad. 95. ^

(*) Ameer Ali, Vol. 1. 348. i

{<•) Advocate»General v. Fatima (1872) 9 B. H. C. 19. ^

J

>

128 MAHOMEDAN LAW

(c) the Court; provided that tlie Court should not appoint a stranger, so long as there is any-»nembei ofi> the founder's family ^n existence q,ualified to hold the-; office. " ' '

Faillie, 693.

133- Office of knutawali not transferable inter vivos. — A mutawali cannot^ transfer his office to another in his lifetime, ♦■

Baillie, 594. It wits so held by the High Court of Calcutta in Wahid Altvt Ashruff Ilossain (1882) 8 Cal. 732. But tlie rule is qualified ip the Fatwa Alumgiri by the clause ''unless the appointment of himseU' were in the nature oL a general trust." This clause, as pointed out by Mr. Justice Ameer Ali, was not brought to the notice of the Court in the Calcutta case. It would appear from certain passages quoted by that learned writer that the powers of a mutawali are general^ when the founder has transferred all his powers *o the mutawali in general terms, as when he says, "you shall be in my place with reference^, to this wahfi^ in which event the mutawali may transfer the office to another person in his lifetime^

134. Mutawali may appoint successor by^ will. —

When there is no provision in the deed of makf regarding the devolution of the office of mutawali ^ the mutawali for the time being may nominate a successor by will ; but such appointment cannot be made, if the founder is alive, or if he has left an executor competent to make the appointment.

Baillie, 694.

135. Mutawali cannot mortgage or sell. — A

mutawali has no power, without the pei mission of the Court, to mortgage, sell, or exchange, the wakf property or any part thereof.

Baillie, -595, 6% ; Ameer Ali, 370, 671. A debt contracted by the mutawal:^ without the sanction of the Court, is h\s personal debt, ever* though it may have been contracted for necessary

WAKFS 129

pulses, such as for repairs of the property or t9T payment of taxes.

136. Power of mutawali* to grant leases. — A

mutawalL should not lease wakf property, if it be agricultural, for p, term exceeding three years^ and if non-agricultural, for a. term ^xc^eding one year, nor ^vithout reseroving the best rent t^at can be reasonably obtained. But a lease for a longer term may be granted with the permission of the C'Ourt, €ven though the founder may have expressly directed not to grant such a lease (Baillie, 596, 597).

137. Allowance of officers and servants, — The

mutawali has no power to increase the allowance of officers and servants attached to the endowment, but the Court mtiy in a proper case increase such allow- ance.

Ameer Ali, Vol. 1, 369.

138. Remuneration of mutawali. — If no provision is made by the founder for the remuneration of the mutawali^ the Court may fix a sum not exceeding one-tenth of the income of the wakf property (d)* And if the amount fixed by the founder is too small, the Court may increase the allowance, provided it does not exceed the limit of one-tenth (e) .

139. Removal of mutawali — a mutawali may be removed by the Court on proof of misfeasance or breach of trust, or if it be found that he is otherwise unfit to hold the office, though the founder may have expressly provided that the mutawali should not be removed m any case. But the founder has no power to remove a inutawali, unless he has expressly reserved such power in tha deed of wakf

id) MoUuddin v, Sayiduddin (1893) 26 Cal. 810, 821. (e) Ameer Ali, Vol. 1, 369.

130 MAHOMEDAN LAW

Baillie, 597; 598 ; Hidait-oon-nissa v. Syud Afzool Hos^^ein (1870) 2 N.W.P. 420. Even the founder, when he holds the office of -.nutawaliy may be removed by t^c Court on •^ny of the- grounds specified above.

Miscellaneous, c

140. Public' mosquesi^— Every Mahomedan is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his^ own sect or school. But it is not certain whether a mosque a-i>propmated exclusively by the dedicator to any particular soct or school can be used by the followers of another sect or school.

Ata-Ullah v. Azim-UUah (1889) 12 All. 494; Jangu v. Ahmad- Ullah (1889) 13 All. 419 ; Fazl Karim v. Maula Bahsh (1891) 18 Oal. 448, L. R. 18 I. A. 69.

In the first of these cases, it was held by the High Court of Allahabad, that a mosque dedicated to God is for tne use of all Mahomedans, and cannot lawfully be appropriated to the use of any p.T,rticular sect. This ruling was referred to by their Lord- ships of the Privy Council in Fazl Karim's case, but they declined to express any opinion upon it, stating that the facts of the case before them did not properly raise that question. The point cannot theiefore be said to be quite settled. But when a nlbsqne is not appropriated to any one sect, there seems to be no doubt that it can be used by every Mahomedan for the purposes of worship without distinction of sect. Thus a Shafei may join in a congregational worship, though the majority of worshippers in the congregation may be Hanafis ; and he cannot be prevented from taking part in the service, because according to the Shafei practice he pronounces the word amin (amen) in a loud voice, and the Hanafi practice is to mutter the word softly.

141. Personal decree against niutawali,—

l^either the whole corpus, nor any specific portion of the corpus of wakfpro'pertj, can be attached and sold in execution of a personal decree against themutawali,

1 • WAKFS 131

>

^ because there may be a margin of profit coming to him after the performance of all the religious* duties.

Bisher\ Chand v. i^hdir Hossein (1887) 15 Cal. 329f L. R. 15 I. A. 1. It was contended on belialt of the. decree-holder in the abbve case that as some surplus a];vays remained in the hands oi the trustfje after the 'performance ol the religious duties, 'he, the decree-holder, was entitled to attach so much of the corpus of the properly as was represented, by the surplus income.* But it was held by their Lordships of the Privy Council, confirming the decision of the Calcutta High Court, that ** the corpus of the estate cannot be sold, nor can any specific portion ^f the corpus of the estate be taken out of the hands of »the trtstee because there may be a » margin of profit coming to him after the performance of all the religious duties.*'

Nor can the office of mutawali be attached in execution of a personal decree against the mutawali (/). But the surplus profit remaining in the, hands of the mutawali for his own benefit may probably be attached ; see BisJiin Chand*s case.

(/) See Sarkwn v, Rahajiiaii Buksh (lJi96) 24 Cal. 83, at p. 91.

>

•

132

CHAPTEK X.

PrE'EMPTIO??. c

[It has been seen in Chapter I, that the Mahomedan Law is to be administered by the Courts of British India in the case of Mahomadans in certain matters onl^^ and that in other cases, or in a&sea not provided for by any other law for the time being in force, the Courts aft-e to act according to justice, equity, and good conscience. '^Pre-emption" is not one of those matters, but in the Par.jab and in Gudh it is regulated by some "other law," namely, the Panjab Law Act, 1872, as amended by Act XII of 1878, and thb Oudh Laws Act, 1876, which apply to Mahomedans as well as non-Mahomeuans. In other parts of British India, the Mahomedan law of Pre-emption is applied to Mahomedans as a matter of "equity, justice, and good conscience," except in the Madras Presidency where it is not recognized at all, on the ground that it places a restriction upon liberty of transfer of property, and is therefore opposed to et^uity and good conscience (g). But the Mahomedan law of Pre-emption is not limited in its application to Mahomedans only. It i« applied to Hindus also in Bahar (/*) and in Gujarat (z), as being th^customary law of those places. The explanation lies in the fact that under the Mahomedan Law, non- Mahomedans are entitled to exercise the right of pre-emption equally wjih Mahomedans (Baillie, 473), and during the Mahomedan rule in India, claims for pre-emption were entertained whether they wer-j prefered by or against Hindus, In this wise, it came to be the customary law of those places. But the law of pre-emption as applied to Hindus in those places is the Hanafi law, for it was that law that was applied to them during the Mahomedan rule, as the Mahomedan sovereigns of India were Sunnis of the Hanafi sect. ] '

142. "Pre-emptiori" defined. — The right of shaju or pr^-emption is a right which the owner of certain

(j) Ibrahim Saih v. Muni Mir Ukin (1870) 6 M. H, C. 26.

(ft) Fakir Mi wot v. Emamhaksh (1863) B. L. R., Sup. Vol. 35.

(0 GorChandas v. Prankor (1869) 6 B. H. C, A. C, 263.

PRE-EMPTION 13S

immovable property* possesses to acquire by purchase certain ot)ier imrr\ovable property whioh has been sold to another persoti.

Hed. ^47; BailUe, ^71 ; Gobin^ DayaUv, Inayatullah'XlQSb) 7 ^11. 775r 799.

143«» Who may clainupre-tinptiQii.— The£oll6wing

three classes of persons, and no others, are entitled to claim pre-emption, namely,

(1) CO- sharers ; • •

(2) "participators in the appendages": and

(3) owner^s of adjoining imxiovable property, but not tenants (j), nor persons in possession of such property without any lawful title {k),

Tlie first class excludes the second, and the second excludes the thii»d. But when there are two or more pre-emptors belonging to the same class, they are entitled to equal shares of the property in respect y of which the right is claimecj. •

Exception. — "The* right of prfe-emption, on the grourid* of vicinage, does not extend to estates of large magnitu,de [ such as villages and zamindaris], but 9nly to houses, garcjens, and small parcels of land" (0:

Illustrations. *

CI) A, who owns a piece of land, grants a building-lease of the land to B. B builds a house on thd land, and sells it to C. A is not entitjed to pre-emption of the house, though the land on which it is built belongs to him, for he iT neither a co-sharer, nor a participator in the appendages of the house, nor an owner of adjoining property: Pershadi Lai v. Irshad Ali (1870) 2 N. W* P. lo6. •

>

(;•) Gooman Sing v. Trip^ol Sin^ (1867) 8 W. R. 437. *

(k) Beharee Ram v. Shoohhudra (1868) 9 W. R. 455. - ;

(0 Mahomed Hosseinv. Mohsiii ^Zm(1870) 6 B. L.*B. 41, 50; Ihdul Bahim v. Kharag Singh (1892) 16 Alh 104. » . •

134 MAHOMEDAN LAW

'^ f

(2) A owns a house which he sells to B. M<^owns a house towards the north of A's house, and is entitled to a right of way through that house. N owns a house, towards the south of A's hous^, separated ftom A's house by a party wall, and having ^, righfo of support ^om that wall. Both M and N cv'^.im pre-emption of the hpus^ sold to B. Here M is a participator in the appendages, whileoN is merely a neighbour, for the right^of collateral support is not an appendage of proporty. M is therefore entitled to pre- ^ emption in preference to N: see RawhoddfLS v. Jngaldas (1899)24(,Boin. 414*

c Note — In the above illustration, the house owned hj M is a dominant

heritage, and the»pre'empted house is a servient heritage, for M has a right of way through it. But M would none the less be a "participator in the appen- dages," if the pre-empted property was the dominant heritage, and his property was tiie, servient heritage: Chand Khany. Naimat Khan (1869) 3 B.L.R., A.C. 296. And AI would also be a " participator," even if both his and the pre-empS^ed projferty were dominant tenements having a right of easement as against a thirdoproperty : Mahatah Sing ^/r. Ramtahal (1868) 6 B.L.R., at p. 43.

(3) A, B, and C are co-sharers in a house, A's share being one-half, B's share one-third, and C's share one-sixth. A sells his share to M. B and tCJ are each entitled to pre-emption of one-fourth, without reference to the extent of their shares in the property: Baillie, 494; see aXjo ^ MoJiaraj Sing ?i v. Bheechvk Lai (1865) SW.R. 71. ^

^ Hed. 548-550 ; Baillie, 476-480, 494, 495. The rig^t of

pre-emption cannot be resisted on the ground that the pre-emptor was not \n possession at the date of the &^\t. It is ownership and not possession, that gives rise to the right {iii). «, ,

When pre-emption is claimed by two or more persons on the ground of participation in a right of way, all the pre-emptors have equal rights stithough one of them may be a contiguous neighbonr(n).

The reason why tl\e right of pre-emption cannot be claimed when the .contiguous estates are of large magnitude is th^t the law of pre-emption '* was intended to prevent. vexation to holders of small plots of land who might be annoyed by tlie introduction of a stranger among them."

Shiah Law — By theShiah'law the only persoias whty are entitle(i to the right of pre-emption are co-sharers: Baillie 175-177; Qurhan *^ V. Okote (1899) 22 All. 102.

(w)" Sakina Bihl v. Amiran {1^''^) 10 All. 472.

/n) Karhtf^Bakhsh v. Khuda Bal-hsh (1894) 16 All. 247.

.- '

( '

PRK-KMl'TION • 135

144. Sale alone gives rise to pre-emption. — The

right of pre-emption arises only out of a valid {o) 'and complete (p) siile. It does not arisetout of gift, sadaka (pious gift^, ^wakf^ inheritance, bequest (//), or lease* even though in pevp^tuity (r), Nor*d^es it arise out of a mortgage even though it may be by way of conditionjil sale (.s).*

Explanation!, — A trai\sfer of im^movable property by a husband to his wife in consideration ^f a sum of

money'due to her as dower is a sale {t),

*

Explanation 11. — It has been held by, the' High

Court of Allahabad, that althouo;h the rules of the

Mahomedan Law of 8ale have beei;^ superseded by the

provisions of the Transfer of Property Act, 1882,

the question whether a sale is valid and complete so

as t(i give rise to a right of pre-emption is to be

determined by applyinir the Mahomedan Law, and

if there is a cotnplete sale un^er that law, although

not u^der the said Act, the right of pre-emption will

arise (?//.

>

Illustration. A agrees to sell his house t()*B for Rs. 300. B^ays the purcha^-money, and obtatftis possession of the house. The sale is complete under the Mahomedan Law so as to give rise to a right of pre-emption, though a sale of immovable 'property of the value of one hundred 'rupees and up- wards «an only be made under the. Transfer of Property Act by a re- gistered instrument : Janki v. Girjadnt (1885) 7 All. 4?62.

145^ Ground of pre-emptioi? io continue up to decree. The right in which pre-emption is claimed, — whether it be co-ownership, or participation in appendages, o^ vicinage — must exist not only at

(t>) Hed. 560 ; Baillie, 472.

' 00 Hed. 660 ; Baillie, i72. *

Oy) Baillie, 471.

(/•) Dewanutxdla y . Kazem. Moiy iy^'^l') \n Q2X. \M. •

(*) Gurdial V. Teknarayan (18^5) B.L.R., Sup. Vol. 166. ■*

it) Fida Ali v. Muzaffar All (1882) 5 All. 65. • ^ »

(u) Najm-7(ti-nism\. Amib AH iVJO(^ 22 All. '5iS. » ,»

» >

* > ' '

\

136 , MAHOMEDAN LAW

the time of the sale, but at the date of the suit for pre-emption (v), and it must continue up to the time the decree is, made (?/?). But it is, not necessary that the right should be subsi»sting at'th^e time of the exe- cution aj: the decree (x). ^ ' '

Thus if a plaintiff* who claims pre-emption as owner of < a contiguous property, sells the property to another person, though it be after the date of the suit, he wil not be entitled to a decree^ for he does not then belong to any of the three classes of parsons to whom alone the right of pre-emption is given by lawj see s, 143, above. But onoj a decree is made, the plaintiff does not forfeit the righ*: of being put into possession of the pre-empted property in execution of the decree, although he may have alienated his property before execution. It need hardly be mentioned that a plaintiff does not forfeit his right of pre-emption merely because he had on a previous occasion mortgaged his own property on which his right of pre-emption is based (y), < r

146. Doubt as to whether the buyer should be a Mahomedan. — It is not ^xiecessarv, according to the Allahabad decisions, that the buyer shouJd be a Mahomedan {z): accord.ing to the Calcutta rulings, it is necessary that the buyef should be a Mahomedan (a). Bi*Jt both the High Courts are agreed that the seller and the pre-emptor should be Mahomedans {b).

The vendor should be a Mahomedan. Hence no right of pre-emption cfa,n be^claimed by a Mahomedan when the vendor is a Hindu or European, though the sale may have been made to a Mahomedan. ^ *

(v) Janki Prasad v. Tshar Das (1899) 21 AIL 374.

(w) Ram Gopal v. Piari Lai (1899) 21 All. 441. ^,

(a?) Bam Sahai v. Gaya (1884) 7 All, 107.

(y) Ujagar Lai v. Jia Lai (1893) 18 All. 382. ^ t- j

(ir) GoHnd Dayal v. Inayatullah (1885) 7 All. 775.

(a) Kudratulla v. Mahini Mohan (1869) 4 b/L. R. 134.

(b) ^ Uwarka Das v. Hvsain Bakhsh (.1878) 1 All. 564 (Hindu vendor)? Poorno Singh \. Hurry ehurn (1872) lO^B. L. R. 117 ( European vendor); Durban V- Chote (1899) 22 All. 102 (Shiah pre-emptor against Sunni vendor and Sujini vendee), i ^

PRE-EMPTION ' 137

■. ^

The pre-emptor also should be a Mahomedan, for if he is a Mahomedan, and he subsequently wants to sell the pre-empted 'property, he 'J8 bound to oflFer it to his Mahomedan'> neighbours or partners before he can se]l it to a stranger., But a non-Mahomedan is not subject to any such obligatipn^and he can sell to rayone he Jikes. The law of pre-emtion contemplates both a right and an obligation, and if a^non-Mahomedan were allowed to pre-empt, it vrould iJe allowing him the'^^righl ^'ithcmt the corresponding obligation. This is t^e principle underlying the decision of Allahabad High Court in Qitrban's case (c), where is was held that a Shiah Mahomedan conldnot maintain a ^laim for pre-emption based on the ground of vicinage when the vendor is a St^nni. The decision was based on the ground that by the Shiah^law an«i^A* houVf as such, has no right of pre-emption,^ and that if he were allowed to pre-empt, he might sell his house to anyone he liked, and his Sunni neighbours could not successfully aEsert any right of pre-emption against him.

The vendee also, according to the Calcutta decisions, should be a Mahomedan. Hence a Mahomedan cannot obtain pre-emption of property, sold by a Mahomedan to a Hindu. According to that Court, the right of pre-emption is not a right that attaches to the land, but it is merely a personal > right. If it were a right attaching to the land, it mi^nt be claimed even against a Hindu or any oth'er non-Mahomedan purchaser. •* We cannot, ... in lustice, equity and good conscience decide that a Hindu , purchaser ' in a district in which the custom of pre-emption does not prevail as amongst Hindus, is bound by the Mahomedan law* which is not hie law, to give up what he has purchased " to a Mahomedan pre-emptor. » ,

On the other hand, it has been held by the Allahabad High Court that it is not necessary that the vendee should be a Mahomedan, and that pre-emption can therefore be claimed even against a HiV'du purchaser. According to that "Court, a Mahomedan owner o5 property is under an ,obligation imposed by the Mahorfiedan law to offer the property to his Mahomedan neighbours or partnojrs before he can ^ell it to a' stranger^ and this is an incident of* his

(<•) 22 AH. 102. . !> '

138 ' MAHOMEDAN LAW

property, which attaches to it whether the vendee be a Mahomedan or a non-Mahomedan.

c '

147. Pre-emption in case (?f sale to a' Shafee. —

Wheiitthe sale is ms.de fo oiieoi* several shaf^es (per- sons\ntitled to pre-em{)t), the other i^hafees are not en* titled, according to the decisions of the Calcutta Higli Court, to claim pre-emption^ against him. Hut when the sale is made to a sliafeS and a stranger, and the property S6)ld»is conveyed to b^th tfne purehaserts as a whole for one entire consideration, other "^ skafees belonging to the* same class as the ,<?//a/i?^-purchaser are entitled to claim pre-emption, to the same extent as if the sfele Avere made to a s tranter .

The same rule was followed by the High Court of Allahabad up to the year 1896, but in recent cases it has been held by that Court that even when tho- sale is made to a shafee alone, other shafees belonging to the same class as the .s^a/^^e-purchasfer' arc' entitled to claim pre-emption of their share against him. ^.

llhist rations.

Calcutfba decisions.

(a) C B and C are co«harers in certain ^laads. A sells his share to B. C has no right to claim pre-emption as to the whole or any pl!irt of the share sold : Lalla Noivbut Lall v. Lalla Jcwan Lall (1878) 4 Cal. 831.

c t

(b) A, B, and C are co-sharers in certain lands. A sells his share at K8.1,000 to E and^. It is declared in the sale-deed that tw(^thiris of the , share is to be for B, and one-third for S. C is entitled to claim pre-emption of the whole share sold <jy A, and not only of the one-third declared to be for S : Saligram v. Raghubardyal (1887) 15 Cal. 224. *[Though the shares are here defined, the amount of purchase-money contributed by each vendee is not. If the price paid by each had been specified, C ( it seems) would only be entitled to claim pre-emption of the one-third sold to S by offering to pay the price paid by him.j

e ^

Allahabad decisions. * *

(c) A, B, C, and D own each a house situatetin a private lane commofi toc^ill the four houses. A sells his house to B. Here B, C, and D are "partici- patoK in the appendages" of the house sold,^thc appendages being the right of "wa^- and C and D are each entitled to claim pre-emption of a third of the^ouse even t^iough the salec is , made to a shafee alone without any

c

PRE-EMPTION 139

stranger being associated witlTr)him: Amir Ilamn v. Rih im Bakh^h (1897) 19 All; 466 Abdullah v. Amanat-ullah (1899) 21 All. 292.

The decisions referred to *ii the section are set out^n the illus- trations. The ground of the; Calcutta' decijions may thus be stated inthe words of Garth, C.J. : " The Object of he rule [of^pre- emplion] ... is to prevent the incqnven ience which may result to families pnd communities fron^ the introduction of a disagree- able stranger as a copnrcener or i'?ear neighbour. But it is obvious that no snch annoyance can rej?ult from a sale by ,on% coparcener to another*." 'The recent Allahabad decisions proceed upon the broad ground that the rule laid down in the H^daya that "^when there is a plurality of persons entitled to the privile^^e^ of shaffa^ the right of all is equal " ( see s. anie)^ is a^ mucl^ applicable when the purchaser is a person having the r,ight of pre-emptioli as which he is a stranger,

14J8. Necessary forms to be observed. — A person who would otherwise be entitled to the right of pre- emption cannot vcUim the right, unless

(1) he has declared his intention to assert the right immediately on receiving information of the sale {talab-i'Tnotcasibat); and unless

(2) >b^ has with the least practicable delay affirmed the intention, referring expressly to the previous

, talah-i-moicasibat (<ij, and made a formal demand

(a) in the presence of the buyer or the ^ller, or on the premises in dispute, and

(b) in the presence of witnesses {ialab-i-ishhad).

Explanation I. — The talah-i-ishhad may be per- formed by a manag'er or duly authorised agerit of the pre-em^tor (e); and when the pre-emptor is at a

— — 5

(d') Bujjuh All V. Chundi. C7iurn(lS90) 17 Cal. 543; Mubarak Husaln v. Kaniz Bano (1904) 27 All. 160. .,

(e) Abadl Begam v. Itianl B^gam (J877) 1 All. 521; All Muhammad v. Muhammad (1896) 18 All. '309. See.also Harihar v. Shco Prasad (188^)7 All. 41, where it was held that the pre-emp^or is bound fc/ the acc^ ajid omissions of his agents ' . ,, >

140 MAHOMEDAN LAW

distance, it may be made by me£lns of a letter (/ ).

Explanation II,— li the talab-r-isfihad i^performed in the presence of the buyer, it .is dipt necessary that the buyer should J;hen«-b6 actually in possession of the property in respbct of which pre-emption Is claimed

Hed. 550, 551 ; Baillie, 481 4?7. It is stated in the Hedaya (p. 550) thatc "the right of shafa is Uut a feeble ri^ht, as it is the disseising of another of his property merely in order t6 prevent apprehended inconveniences" (see notes to s. 147, above). Hence the formalities mast be strictly complied with, and there must be a clear proef of tke observance of those formalities (A). The talah-i-mowasihat (immediate demand) should Ve made as soon as the fact of the sale is known to the claimant. A delay of twelve hours was held in an Allahabad case to be too long {i). And it was held in a Calcutta case that where thcf pre-empfor, on hearing of the sale, "entered his house, opened his chest, took out Rs. 47-4 " (evidently tot tender the amount to the buyer), and then performed the talah-i-mowasihat^ he was not^ entitled to claim pre-emption, for the delay was quite unnecessary (^■); see next section. It is not necessary to the validity of talah-i- mowasChatj that it should be performed in the presence of witnesses. But it is of the essence oi talah-i-ishhad {MtereMj ^ invoking \)^itnesses), that it should be performed^ before witnesses (k). It is also absolutely necessary that at the time of ^making the deman*d, reference should be made to the fkct of the talah-i-mowasihat having been previously made, and this necessity is not removed by the fact that the talahU-mowasibat was also performed in the presence ,of witnesses, and that the ' witnesses to the talnh-iishahhd are the same (I), The

(/) Sped Wajid v. Lalla Hcfimman (1869) 4 B.L Jl , A. G. 139.

(^) •-18 All. 309, supra.

(h) Jadu Sing v. Jlajkvmar (1870) 4 B. L.^R.. A. C. 171.

(0 Ali Muhammad v. Taj Muhammad (187,6) 1 All. 2^3.

(fS Jarfan Khan v. Jahhar il/ea/t ^1884)40 Cal. 383.

iX^ Jadu Sine v. Eajkumar (1870) 4 B. L. R., A. C. 171.

(t) Mubarak Husain v. KanizBano (1904) 27 All. 161.

i <

• * PRE-EMPTION 141

requirements of a talab-i-ishhad would be complied with, if ihe pre-emptor hereto state in the presence of the render or the vendee, or on the land sgld, and in the presence of witnesses : "I have claimed pre-emption ; I still cjaim it ; bear witness tnevefore to t^e fact" (.72).

149. o Tender t)f price not essential.— It is. not

necessary to the validity of a claim of pre-emption that the pre-emptor should tender the prise at the time of the talab-i-ishhad; it is sufficent that he should then declare his readiness and willingness to pay the price stated in the deed of sale, or,' if he has reasonable grounds to believe that tl^ iprme named in the sale-deed»is fictitious, such sam as the Court determines to have been actually paid by the buyer (w).

150. Extinction of right on death of pre-emptor. —

The right of pre-emption is .extinguished on the death of the pre-emptor, and if a suit has been instituted 'by the pre-emptor to enforce the right, the suit will abate on his death.

Baillie, 499, 530 ; Muhammad Husain v. Niamat-un-Nissa (1897) 20 All 88. See Code of Civil Procedure, s. 361.

151. Right lost by acquiescence.— The right of pre- emption is lost if the pre-emptor enters^ intio a com- promise with the buyer, or if he otherwise acquiesces in the sale (^). But a mere oiFer by ^ pre-emptor to purchase from the buyer at the sale-price, made with the object of avoiding litigation, does ^ot amount to an acquiescence (p).

(jti) Macnaghten, p. 183. >

(n) Heera Lull v. Mooruit Lall (1869) 11 W, R. 275 ; Lajja Prasad V. Dehi Prasad (1880) 3 All. 236 ; Karim Bakhsh v. £:huda Bakhsh (18£4) 16 All. 247, 248.

(jo) Habib'Un-nissa v. Barkat AH (1886) 8 All. 275, ^^ ^

(p) Muhamad Nasir-ud-din v. Abdul Jasan (1894) 1() All, 300 ; Mn- hammad Tnnus v. Huhammad Yumf (1897) 19 All. 334. ^ j

) >

142 MAHOMEDAN LAW ' *

f

152. Right not lost by refusal of offer before sale. — As [he right of pre-emption accrues after the completion of a sale, it is not '\(M, by a refusal to purchase when ^he offer' is made to the pre-emptor before the completion of, the sale to another {q). *

1*53. Suit fer pi'e-£nipJKon. — ^Every suit*^ f or pre- emption must include the wha^e of the property subject to pre-emption conveyed by one transfer (r)» But a person entitled to the right of pre-emption is not boufi<^ to claim pre-emption in respect of all the sales whiph mjy be executed in regard to the pro- perty (s).

The principle of denying the right of pre-emption except as to the whole of the property sold, is that by splitting up the bargain the pre-emptor would be at liberty to take tte best portion of the property and leave the wo^st part of, it with the vendee {t). "The right o^ pre-emption was never intended to confer such a capricious choice upon the pre-emptor"Jw). «

Limitation. — A suit t6 enforce a right of pre-emption must be . instit^^ted within one year from the t?jie when the purchaser iakefr physical possession of the property, or, where the su^j^ct of the sale does not admit of physical possession, when the instrument of sale is registered (Limitation Act, 1877, 6ch. II, art. 10). ^ When the* person entitled to pre-emption is a minor, the right may be claimed on his behalf by his guardian, and the suit must be instituted withili Ihe aforesaid period. The right of pre-emption is extinguished after the expiration of the period of limitation, an4 it cannot be claimed^ by the mifior on attaining majority (Hed. 564), notwithstanding (it seems) t^e provisions of s, 7 of the Limitation Act. The same rule would seem to apply in the case of persons suffering from any other legai disability, such as lunacy or idiocy. * *

(^) Ahadi Begam v. Inam Began), (18774 1 AM. 521. ' '(7^\ Durga Prasad v. iMunsi (1884) 6 All. 423. %s) ^Amir Hdsan v. Hahim ^akhsh (1897) 19 All. 466.

(0 ShAjbharos v. Jiach Mai (1886) 8 All. 462.

(w3 6 All. 423, at p. 426.

• * PRE-EMPTION 143

, Fprm of decree, — See Code of Civil Precedure, s. 214. The rights of ownership vest 'in, the pre-emptor when tlie payment of the pre-emption price i^ paid in accordance vfith the ternjs of the decree, and he \s therefore entitled 'to •the mesne profits frc/fti the dat^ of payment, though he may not have obtained possession till acme time, after: Deol'inandan r. Sp Ram (1889) 12 All. ,234. See also IVazir Khan v. *Kale Kkan (189*3) l6 All. 126.

154. Legal device' for evading pfe-^mption. —

AVhen it is apprehended that a claim, for pre-emption maybe advanced by a neighbour, the vep<dor*may sell the whole of his property excluding a portion, however small, immediately bordering on the neigh- bour's property, and thus defeat the neighbour's right of pre-emption.

Hed< 563 ; Baillie. 505.

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FAMILY RELATIONS.

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146 , ,

CHAPTER XI.

Marria6e, Dower, Divorcee', & Parentage, u ' A.— tMarriage. '

155. ''Marriage" defined. — Marriage isa contract, which has for its object the procreation end the legalising of children.

Hed. 25 ; Baillie, 4. Marriage under the Majiomfidan law

being merely a contract, it is necessary that there should be

♦'freedom (if .contract." Hence a marriage brought about under

coercion or fraud may be set aside at the instance of the

pakty whose consent was so caused, (Baillie, 4).

156. Who may contract a marriage. — Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

Puberty is presumed^ in the absence of evidence, on completion of the age of fifteen years.

Baillie, 4; Hed. 529. The decision in Abdool Oahab v. Elias Banoo (1867) 8 W. R. 301, foUpwirg probably Macnaghten's opinion (p. 62), that puberty is presumed on completijon of the sixteenth year, is obviously erroneous.

Note thai- the provisions of the Indian Majority Act, 1875, do not apply to matters relating to narriage, dower, and divorce. See notes to s. 78 above.

157. Proposal and acceptance.— Whether or not

there may have been a proposal and acceptance to marry at some future period (which constitute what is known in other systems of law as a promise to marry), it is essential to the validity of a contract of marriage that there should be a proposal an(J acceptance made at the same meeting with the object ot , establishing immediate marital relation between the parties. And it appears that until such relation is established, the partie? are at liberty to withdraw

•

MARRIAGE * 147

• *

from any pr^mw they may have made to marry, and that no suit will He for damages for breach of such a pK)mise. . • »

Hed..25, 26; Baime,.10. * . ,

• 158.' Witnesses. — A marriage contracted without witnesses is only invalid, and not void.

• * * ill • *

Baillie, 155. As to the le^l effect of a\i invalid marriage, see

8. 107 below. •

159. * Capacity to marry. — It is necessary Mb the • validity of a marriage that the woman njusly not be

the wife of another man, and that the man must not be the husband of four wives, tlfat bdng the/ull number of wfves permitted by M8,homedan law,

Hed. 31 ; Baillie, 27, 31. An agreement between a Makomedan hnsband and wife at the time of marriage that the wife should be at liberty to divorce herself from the husband, if he married anotBer wife, is valid (y^.

160 . Marriage during iddat.— A marriage with a widow or a divorced woman ^before the expiration of the period of iddat^f^\a(i^ ^t is incumbent upon her to ojb^erve on the death of her husband or on divorce, is void. \

Explanation, — The iddai of a woman 'arising on divorce* is three courses, if she is ^bjdct to men- struation; if not, it terminates at the expiration of three months from the date of divorce.* The iddai of a w^man arising on .widowhood is four months and ten days. But if the woman l»e pregnant, the period of iddat does nOt terminate until after delivery.

• Hed. 1?8, 129 ; Baillie, 37, 350-355. See s. 202, below.

161. Differedce of religion. — (1) A Mahomedan

(r) Pooiwo Bibee v. Fyez Bukgh (1874) 15 B. L. R. App. 6 ; Bada rannism V. iTfo/ui«aZa(1871)7B. L. R,442.^ • • ^ /

f

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148 ' MAHOMEDAN LAW

may contract a valid marriage wi^ a woman who believes in a revealed religion, ( that is, Chris- tianity and Judaism), but not with^an. idolatress [or perhaps a fire-worshipp/^r.]' But a, marriage with an idolatresc^ [or a marriage 'with a fire-worshipper, if such marriage is not lawful from the begin'ning], is not void, but merely invalid.

(2) The marriage of a Mahbmedan female with a non-Mahomedan, whether he be a Cnristian', a Jew, an idolater, or a fire-worshipper, is invalid, but 'not void. a

Hed. 30 ; Baillie, 40.^ When either party to a marriage is a

Christian, the marriage n^ust be solemnized in accordance with

the provisions of the Indian Christian Marriage Act XV of 1872 ;

otherwise the marriage is void (s. 4). If the marriage is

solemnized in accordance with those provisions, it will be vaU(i,

though it be the marriage of a Mahomedan female with a

Christian. But if the marriage \f not so solemnized, it will not

be valid, though it be the marriage of a Mahomedan male with a

Christian woman. *

<i As to the legal effect of an invalid marriage, see s. 167 below.

' V-

162. Prohibited degrees of consanguinity. -A

man is prohibited from marrying (1) his mother or his grandmdther, how high soever ; (2) hi^ daughter or grand-daughter how low soever ; his sister whether full, consanguine, or uterine ; (4) his niece or great-niece, how^ iow soever ; and (5) his aunt or great-aimt, how high soever, whether paternal- or maternal. ^

Hed. 27 ; Baillie, 23.

163. Prohibited degrees of affinity.— A man is

prohibited from marrying (1) his w]fe*s mother or grandtnpther, how high soever ; (2) his wife's daughter or grand -daughter, how low soever ; (3) the wife of'>hi^ fathei' or paterniil , grandfather, how high

• • MARRIAGE 149

soever ; and (4) the wife of his son, or of the son's son or (laughter.'s son how low soever. ^

He(J. 28; BailHe,^ 24^29.

164. Prohibition onthe groand of fosterage.—

Fosterage is as much a bar to a lawful marriage as consanguinity, Qxcept^in the»cafye of certain' foster- relations, such a§ a sister's foster-mother, or a foster- sister's mother, or a* foster- son's sister* or a fpster- brotfier's sister, with whom a layful marriage may be contracted. , •

Hed, 68, 69; Baillie, 194. , ,

165. Additional prohibition^.— It is not lawful for a man to have two wives at the same time, who are so related to each other that if one of them had been * a male, they could not have lawfully internmrried^ ,

0

* Hed. 28, 29 ; Baillie, 31, 153. Thus a man is prohibited from mar/ying his wife's sister during his wife's lifetime. The children of such a marriage are illegitimate and cannot inherit ; Aizunnissa v. Karimunrlssd (1895) 23 Cal. 130. ^t if the wife he»divorced or. dead, he may marry her sister.

166. Effect of a valid marriage.'*-A valid marriage confers upon tlje wife the right of dower, mainteilance, and residence in her hifsband's house, and imposes on her the obligafcipn to be faithful and obedient to her husband, and to admi# him to sexual intercourse.. It creates between the parties reciprocal rights of inheritance, but it does not confer on the husband any interest in the wife's property.

. Baillie, !3 ; ^.-v. B, (1896) 21 feom. 77, 84.

167. Effect 6f an invalid marriage. — (l)^An invalid marriagCf (as distinguished from a ,valid marriage), may be fermjiiated by a mere repudiiition on either side. It does adt confer afiy rights on either party to inherit from the other, noi* do(?s

150 MAHOMEDAN LAW * <

it entitle the woman to dower, unless the marriage

has been corfsummated. , ' < '

<

(2)^ 'An invalid marpage, (as dWcinguished from an illegal marriage j, has this elFect that children born during the continuance of the contract are regarded as le^timate. r c < o t c

Baillie, 15^, 1^7. As to which marriages are invalid,* see ss. 158 <and 161, above. See also notes to s. 204, below. ^ ^

« ^ Marriage of Minors,

168. i^arriage of minors. — A boy or a girl, who has not attained puberty, (hereinafter called a minor), is not competent tb enter into a contract of marriage, but he or she may be contracted in marriage by his or her guardian.

See notes to s. 156 above.

169. Guardians fa/ marriage. — The right to dispose of a minor in marriage belongs succqssivt3ly to the (1) father, (2) paternal grandfather now high soever, and (3) brothers 'and other male relations on the faflier's side in*che order of inheritance enumerated in the Table of Residuaries, In default of paternal relations, 'the right devolves upon the m^.ther, maternal uncle or aunt, and other maternal relations -sjrithin the prohibited degrees. And in default of ' maternal kindred, it devolves upon the Government.

Hed. 36, 39. It is doubtful whether the right to dispop^ of a minor in marriage is lost by;. , the apostasy of the guardian from the Mahomedan faith. Under the Mahomedan Law proper, an apostate has no right to contract a minor in marriage (Hed. 892). On thQ. other hand, it is enacted by Act XXI 6i 1850, that no law or usage then in force shall inflict on an^ person, who renounces his religion, any "forfeiture of rights or ^property," and it was acc^dingly held by the High Court 6f Calcutta in Muchoo v,

ArzQon\w), thrfc a Hindu father is not deprived of his right to the

t

t «. — — — — ~

(vO (1866) 5 W. R, 235.

• • MARRIAGE 151

cnstody of his children! by reason of his conversion to Chris- ' tiaftity. In^ subseqiyont case, however, decide^ by the same Court, but without an^ Reference to Muchoo's case, it was held that a M^horaedan, Who flad become a convert to Judaism, was disqualified by reason of his apostasy from disposing of his daughter in marriage (x). In a recent Bombay case, it was held, following Muchod's ^ase, that a Hindu «onYe»t t^ Ik^homedanism Was not disquaHfied from giving his son in adoption to a Hindu (jj). It is submitted that the right ib contract a minor In loaarriage is a "right" withm the meaning of the above Act. and that the decision ift MucJiooi's case, followed in the Bombay case, is the,corftct one.

170. Marriage brought about by fatherland grand= father. — Wheij a minor has beey disposed of -in marriage by the father or father's father, the contract of marriage is valid and binding, and it cannot be annulled by the minor on attaining puberty.

Hed. 3f ; Baillje^^SO.

^171 Marriage brought about by other guardians. —

When a iharriage is contracted for a minor by any guardian other than the fathjer^or father's father, the minor has the option fcf'repudiatiiijg the marriage on attainiiig ^ puberty. This is technically called the "option ot* puberty."

The right of repudiating the marriage is lost, in the case of a female, if she has remained silent after attaining puberty. But in the case of a male, the rigt^t continues until he has ratified the marriage either expressly or impliedly as by payment of dower or cohabitation.

Hed. 38; Baillie, 51. > * •

• 172. Effect 0^ repudiation. — When the "option of repudiation" is exercised, the marriage is dissolved

(a?) In the matter of Marin Bihi (1§7|) 13 B. L. R. 1^0. ^

(y) Shamsing v, Santabai (1901) 25 Bom. 651, *

152 MAHOMEDAN LAW , ,

from the moment of repudiatiofi. But the marriao*e is valid until repudiation, and. in the e^vent of' the death of either party .before 'repudiation, the other is ent/itled to all the rights of inheritance. *"

Baillie, 50. It^is, no doubt, stated in th^Btedaya (p; 87) that *' in dissolving the marriage, decree of the Kazee is a necessary condition "in all cases Qt option exerted after maturity." *'But the Radd-ul-muhtar" (Vol. II, p. 502) A' explains it by sajring that a judicial declaration is ... . needed « [only] to provide judicial evi(?ence in order to prevent disputes," and it has accordingry*. been held by the High Court of Calcutta that a judicial ord^r is no^. essential to effect the cancellation of a marriage contracted by a guar(Jian on behalf of a minpr («). It is, there- fore, clear that a girl, who has been disposed of in marriage during her minority, and who repudiates the marriage on attaining puberty and marries another person, cannot « be convicted of bigamy, though the repudiation may not have been confirmed by a judicial order (a). ^^ '

173. Marriage of lunatics. — The provisions of sections 168 to 172, relating to the marriage of minors, apply mutatis' mutqndis to the marriage of lunatics. "-■ , ^

Baillie, 60-54. '^

Maintenance of Wives, ,

174. Hnsband's duty to maintain his wife. — The

husband is bound to maintain his wife, (i:i,nless she is too young for matrimonial intercourse) (b) , sc long as she is faithful to Wm and obeys his reasonable orders ; but he is not bound to maintain a wife, who refuses herself to him (c), or is otherwise disobedient (d), unless the refusal or disobedience is justified b'y

{z) Badal Aurat v. Queen Empress (1891) ?9 Cal. 79.

(/) /&.

C^7 Baillie, 437.

(ff)) Baillie, 43d. See s. 183, ttfelqw.

Id) _. A. ^. B. (1896) 21 Bom. 77, at p. 82.

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MAINTENANCE OF WIVES * 153

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non-payment of dciwer (e).

* 175. » Order fer maintenance.— If tjie husband neglects or refuseg to maintain his wife without any lawful* cause, the wife may, sue 'him for maiht^enance >n a Civil Court, but she will n^^t be entitled to a decree for past maintenant'e, unless the claim is based on a specific agrfeemen^^ (//. *0r,^ she may apply for an order ipr maintenance under the provisions of the Code, of <>Criminal Procedure, 1898, section 48g, in , which case the Court may ordc? the husband to make a monthly allowance for her mainiJenance not exceeding fifty rupees. ,

176. Maintenance during itfdat. — The wife is entitled to maintenance during the iddat consequent upon divorce {g); but the widow is not entitled to maintenance during the iddat consequent upon her husband's death (A).

. A«i to the period of iddat ^ see s. 160 above. When an order ia

made for the maintenance of a wife under s. 488 of the Criminal

Procedure Code, it will cease'to qpefate, in the case of a divorce,

on the expiration of the '^/eribd of iddat, but not earlier (^). ■> .»

\ Restitution of Conjugal Rights,

177. Siiit for restitution of conjugal rights—

Where a wife shall have Without lawful cr»use ceased to cohabit with her husband, the husband may sue the wife in> a Civil Court for the restitution of his cd&jugal rights (j^.

(e) Baillie, 438. , (/) Abdcfl Futt^h V. Zahunnessa (1081) 6 Cal. 631.

(^) Hed. 145 ; BaiUiej 450.

(K) Aga Mahomed Jaffer v. KooUom Beehee (1897) 25 Cal. 9.

(0 In ;•* Ahdul All (1883> 7 Bom. 180 ; in the matter of* Din Muhammad (1882) 5 All. 226 ; Shah Abu v. Ul/at Bibi (1896) 19 Ali. 50.

(0 Moonshee Buzloor Ruheem v. Sh^mfoonnissa Bejfam (1867) ll'«M. I. A. 551. • »

/

154 MAHOMEDAN LAW « «

Non-payment of prompt dowiv by the husband to the wife is a valid defence to such^ a suit c{k), unless the marriage has already, been cdhsjummated (l). And so is cruelty, when it, is of such a character as to render it unsafe &r the wife to return to» her husband's dominion. ''It may be, ^ioo, that g^oss failure by the husband of the perf orm'ance* of the obligations which the marriage contract imposes an him (s. 166) for the benefice of the wife, mignt, if prop

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