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S^::^?^ijxS
^^8^
 PRINCIPLES
OF

MAHOMEDAN LAW
lyf®

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

(

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( Ml NTAHIKS OS THK COBE OF CIVIL rUOCKDCBK,"
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ILIIISDICTIOV OF COURTS IS MATTERS
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OK l^ASTE," ET|.

Price, Rs. 3.

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f • •
 % • . ...
">
Ul

PREFATORY NOTE.
•

I'his work has been mauily deigned for the use 'of

students, a guide to J:heir study of Mahomedan

fts

Law. Heiice, for a speedy and convenient grasp

of its
principles?, I ]iave cast them in a series of dis- J,

tirict
propositions, arranged in .the
systematically"
^

.order of sections, illustrat^ by^ decided

colisecutive
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
have been missed, while enactments amend-^'
decisions,;^

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
 .>

IV 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 qnposition of the

and«^ scientific

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 main modelled on the plan of

in the
Sir Roland Wilson's excellent Digest^ of Anglo-
MuHAMMADAN Law which I consider to be the
best the object I have had in view.
adapted for I
*
havCj, however, on several occasions, ventured to differ
from that authority in some cardinal doctrines.

. D. F. M-
23, Church Gate Street,
c
«

^ July 1905.
^.

'^
 •».

^>
TABLE OF CONTENTS.
^t>

3
Page.

Chapter <i.— Introduction Mahomedan Law,

of into British

India •«« ..• ••• ••• •••

'
*

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

Chester III.— Sources and Interpretation Mahomedan of

Law« T 1^5

Chapter iV, — Of General

Successiofr'in ... 19

Ohapier V. — Inheritance — <

A. — General ... 36
B.^— Hanafi Law of Inheritance 42
» C. — Shiah Law Inheritance
of 80 f»

Chapter Vl.—Wills ,
89
VIC. — Death-b^d Gifts and
•
Chapter Acknowledgments ... 97
'

Chapter VIII. —Gifts ... 100

Chapter IX.— Wakfs 116
Chaptt*r X.—^'Pre-emption 132
*^
Chapter XI.->^Marriage, &c.->-
A. — Marriage... ,,i 146
B. — I)ower ... ... ... ... ,.*
'

C. — Divorce ... 160

T). — Parentage* 170
Cfhapter XII.
— Gu^dianship 178
Chapter XIII.
— Mainvenano of Relatlyes .. 184
9 •
-
•
' ' -
• • * ft
I . i-

c c

^X
• •

• • •
 Vll

TABLE OF CASES
•:o:

A ^ ^Ambashankar
Ameer Ammal
v. Sayad
v. Saukarai.ara-
Ali, 27

A.v.'b., 152,166^167 »
yanrxjf",
159
^badi Begam v. Inaoi Begam, Ameeroonnissa v. Abadoonissa,
142 »
108, 110 M
139^
Abasi V. Dunne, 181 Amina Bibi v. Khatiji Bibi, 111
Abdo.c^ Adood v. Mabomed Amir Dulhin v. B*ij Nath, 21, 27,
Makmil, 41 29, 31
Abdool Futteh v. Zabuonessa, 153 Amir Hasan v. Rahim Baidish, '

Abdool Kadar v. Bapubbai, 41 139, 142 ,

Abdool Oah(.b v. Elias Bauoo, 14<5 Amrutlal v. Siiaik Husse^in, 125

Abdul Ali, In Re, 153, 161 Aratul Nissa J. Mir Nurudin, 103
Abdul Cadur v. Yurner, 6, 94 Atwari Pegam v, Nizam-ud-Din
Abdul Fata Mahomed v. Rasa- Shah,'40l, 103, 106 ^

rtaya, 16, 117, 122-125 Ashabai v. Haji Tyeb, 7

Abdul Gafur v. Nizam:")din, 117, Ashrulf Ali v. Meer Aahad ATi,
121, 123 ,
173
Abdul Ganne v.Hussen Miya, l.~ Ashrufood Dowlah v. Hyder Hos
12l^-^23 sein Khan, 172, 175, 177
Abdul Kadir v. Salima, 17, 154, Assamathem Nessa Bibee v.
156 Liitchmeeput Singh, 21, 27
Abdullah v. Amanat-uUali, 139 Ata-UUah v. AzimUllah, ISU
Abdul Rahim v. Kharag Singh, Azim-un-Nissa v. Dale, 7, 111
133
Abdul Rnzak v. Aga Mahomed
Jaffer, 171, 175
Abdul Serang v.Putee b. 43, 66 ., Baba v. Shivappa, 182
Abdua Wahid v. Nnrau Bibi, 36,38 Badal Aurat v. Queen, Empre&s,
Abraham v. Abraham, 4 152
Abu Sayid v. Bakarali, 116 Badarannissa v. Mafiattala, 147
Advof.ate (tP'"'~-'1 v. Fatima, 127 Baf^tnu V. Bilaiti Khanum 12, 62,
AgdL Mahomeu «. '^ifer v. Koolso* 80, 92
Beebee, 15, 88,94, 106, 153 Bai Kaiji vrBai Santok, 7
Agha Ali Khao v. Altaf Hasan Baqar Ali Kban v. Anjuman Art-
Khan, 17, 18, 80 Begam, 17, 117
Ahinsa I3ibi v. Abdel Kader, 34 Bava Sahib v. Mahomed, 211
Ahmed Hossei" v. Mussumat Bazayet Hossein v. Dooli Chund,
Khodeja, II 22, 24, 25
Aizunnissa v. Kar* -nnissa, 140. Bebee Bachun v. SheikhiHamid,
177 T 158
Akhtaroor\-y'«8a v. ou..ii ;olla, Behiiree Ram v. Shoobhudra, 133 >

'
170 Blfola Nath v. Maqbul-un-Ni8^a
Ali.bi.v. Mussa, 2, 109 20, 25, 157
,Ali Muhammad v. AzizuUab, 159 Bhoocha v. Elahi Bux, 180 '

Ali Muhammad v. Muhammad, Bhutnath v. Ahmed Uo^^sin, 182

139,140 Bikaoi Miya v. Shuk Lai, 123,
Ali Muhamrfiad v, Taj Muham- 124, 126
mad, 140 Bisheii Chaud ;''. Nadir Hoseein,
Amanat-un-Nissa v. Bashir-un- 131 o ,

Nissa, 158 •
Brs'^a Kishor v. Kirti Chandja, 1

J J
 //
'
'
V- /

Vlll TABLE op CASE^

B — contd. r
G
Bukshan v, Maldai, 182 Ghasiti v. Gbasiti, 10 r

Buesunterara v. Kamaluddin, 8, Ghulam Ali'v. Sagir-ul-Niesa, 160

23 G(Sbind eDay^l v. Inayatuliah,
133, 136
Gooman Sing v.*TripoolSing, 133
Gofdhandas Prankor, 1C2
v.
Chand Khan v.Naimat Khan, 134 Gurdial v. Teknarayan, 135*
Chekkene Kutti v. Ahmed, 111
Chuki Bibi v. Shams-un-Nissa,
.159 c.
H
Habib-un-nissa v. Barkat Ali, 141
Hadi Slli v. Akbar Ali, 159
Haji Ismail, In re, 7 (

Dada v. Dabpji, 9 Hakim Khan v. Gool Khan, 41

Dallu Mai v. Hari Das, 28, 30 Hakim Khan v. Gul Khan, 9
Daulatram v, Abdul Kajum, 94 Hamid Ali v. Imtiazan, 161
Davahva v. Bhimaji, 26?, 27, 29, HamidooUa v. Faizunnissa, 16^
tl Hamidnivessa v. Zohiruddin, 154
Deedar Hossein v. Zuhoor-oon- Hamir Singh v. Zakia 22, 23, 27,
Nisea, 12 28
Deo d. Jaun Beebee v. Abdoollah, Harihar v. Sheo Prasad, 139<
119 Hasan Ali v. Mehdi Husain, 26
Deokicandan v. Sri Ram, 143 Hasan Ali v. Nazo, 36, 37,40
Deoti Prasad v. Inait-ullah, 121 Hassarat Bibi Goolam Jaffar, 97
v.
Dewanutuila v. Kazem Molla, 135 Hayath v. Syahsa Meya, 183
Dhan Bibi v. Lalon Bibi, 177 Hayat-un-nissa v. Mahammad Ali
Din Muhammad, In the maUer Khan, 13, 20
of, 153 Heera Lai v. Moorut Lall, 141
Durga* Prasad .V. Mnnsi, 142 Henry Lnlach v. Zuhooroonnisa
Dwarka Das v. Husaiu Bakhsh, 96
136 Hidaitoonnissa v. Syad Afzool
Hossein, x30
Hirbai v. Gorbai, 7
Pumeeda v. Budl ^m, 36, 38
Eidan v. Mazhar Husain, 156
Hurbai v. Hiraji, 183
Emnabai v. Hajirabai, 111
Husein Beg^.m v. Zia-ql-Nissa
Begam, 182
Hussain Beebee v. Hussain She-
Fakir Eawot v. Emambaksh, 132 rif, 127
'
Fateeangji v. Harisangji, 7 I
Fatima^ibee v. Ahmad
Baksh,
Ibrahim v^ Muhi Mir Udin, 1, 132
97,98
Ibrani&i v. Syed Bibi,cl61
^atiraa Bibee v. Ariff Ismailjee.
Ibram Bibi v, Hussain Sheriif,
92, 93
127
Fatmabibi v. Advocate General,
Jdu V. Amiran, 181
11&, 121, 126
Fatma Bibi v. Sadruddio, 157 Ismal V. Ramji, 102, 106
Fazl Karim v. Maula Baksh, 130
Fazlur Rnhim V. Mahomed Obe-
dul Azira, 123 ( Jadu Sfng v. Raj cu mar, 140
FJda Ali v. Mczaflfar Ali, 135 Jafri Be«am v. Amir Muhammad,
Furz^ind v. Janu Bibee, 161 ( 21,23,26,28,29,52

(
 •TABLE OF CASES IX

J — cojitd,
• • Mahomed Aheanulla v. Amar-
chand Kundu, 121, 123, 125, 126
Jami^ya v.Diwao, 9 / ,^fahomed Altaf v. Ahmed Buksh,
"
"
Jangu V. Ahmad-Ulltlh, 130 90
Janki v. Girjadat, 1^5 « * Mahomed Arshad v. Sajida
^
Janki Prasad v. Ishar Dap, 136, Banoo, 62
Jarfan Khan v. JaJabar Meah, 14^
*

Maho/hed Banker v, ^Shurfoon

J^un B»ebee v. Beparee, 166 Nissa, 175
Jewuw Do»8 V. Shah Kubeer-ot>d- Mahomed Buksh v. Hoss€ini Bibi,
117 104, 106, 108 «
J)een,
JowaLrBuksh V. Dhariim Singh, Mahomed Hosseiu v. Mohsia Ali,
133 ^^
4,6
Mahomed Sidick v. Haji A^raed,
K 7

Kaleloola v. Nuseerudeen, 116 Majidan v. Raju Narjiin,wl82

Marin Bibi, In the matter of, 151
Kali Dntt v. Abflulali, 183
Mafsit-up-Nissa v. Pathani, 175
Kaniar-un-Nissa Bibi v. Hussaini
Ma8than<»Sahib v. Assan Bibi, 156
Bibi, 100, 155
'

Karim Bakhsh v. Khudoi Bakhsh, Mayhew v. Mayhew, 168 ^

Mazhar Ali v. Budh Singh, 80
134, 141 , Mazhar Husen v. Bod ha Bibi, 90
18-*
Kariyadan v. Kayat Beeran, Maherali v. Tajudin, 104
KasiiM Huesain v. Sharif -un-Nissa,
Mia Khan v. Bibi Bibijau, 3
108 Mir Ali v. Sajuda Begum, 88
Khojah Hidayut v. Rai Jan, 175
Mir Azmat Ali v. Mahmud-ul-
Khajoorooniasa v. Rowshan Jehan,
Nissa. 154
92, 101 Mirza Bedar Bukht v. Mirza
Khanuin Jan v. Jau Beebee, 39
Khnrram Bukht, 156
Khurshetbibi V. Keso Vinayek, 27>
29
M^gulsha V. Mahamed Saheb, 106
Koonari Bibi v. Dalim Bibi, 64 Moharaj Singh v. Bheechuk», 34
Mohinudin v. Manchershah, 102
Korban v. King Emperor, 179 Mohinudin v. Sayiduddin, 129
Kudratulla v. Mahiui Mohan. 136 Moohummud Ameenoodeen
^ .
v.
Kunlii V. Moidin, 154
Moohummud Kubeeroodeen, 96
Kunhi Mamod v, Kuohi Moidin,
Moonshee Buzloor Buheem v,
^9 » ^
Shumsoopnissa Begam, 153
Moonshee Buzul-ul Raheem v.
Luteefut-oon-Nissa, 165 ^
Labbi Beebee v. Bibban Beebee,
97
,,
Moyna Bibi v. Banku Behari, 182
Mubarak Hussain v. Kaniz Bano,
Lajja Prasad v. Debi Prasad, J41
LallaNowbut tiall v.Lalla Je\#an 139, 140
138
Lall, * Muchoo V. Arzoon, 150 «

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

mad Iwiiiail, 28, 172, 174, 177
Muhammad Awaiz v. Har Sahai,
21, 28, 29
Madhub' Chunder v. Rajcoonian.
90 Muhammad Aziz-ud-din v/The
Do68, 3,
'Mahatab Sing v. Ramtahal, 134 Legal Remembrancer," 17, 118
Mahatala Bibee v. fluleemoozoo- Muhamm^ad Esuph v. Pattamsa
man, 176 Amma4, 114
Mahammad Azmat v. Lalli Be- Muhammad Gulsh^re Khan v.
gum, 175, 176 Mariam Begara, 97

o J
 *
«. /
•
TABLE OF CASES

IVI
— contd. Poonoo Bibee v^. Fyez Bu^sh, \^l
Poorno Singji v! Hurrycfcurn^ 136
^ Muhammad Husaia v. Niamat-ufi- ^ Proby V. Pnaby, 168 » •

Nissa, 141 Purshotam %. Runchhod, 35

( Muhammad Ibrahim v. Gulam r

Ahmed, 13
Muhammad Karim-uUah KLan v.
'

^ Amani Begum, 158

Muhamraord Mumtaz v. Zubaida
Qnrban
^
v. Chote, 134, 13^, 137
(

Jan, 108 R
«c oMuhamraad Nas*r-ud-din v. Abul
Rahimatb^.i v. Hirbai, 7
•^r
Hasan, 141
Muhammad Rahim Bakhsh v. Muhammad
f- Muha^iimad Yimua v.
Yusuf, 141 Hasan, 103, 104, 115
Mujib-uo-rNissa v. ^^^^ur Rahira,
Raj Bahadur v. Bishen Dayal, 4
123, 124, r^6
Ram Gopal v. Piari Lai, 136
Mulbai, In the goods of, 7
Ram Kumari, In "the matter of, 5
Mullic& Abdool Guffoor v^Muleka,
Ramrao v. Ru(»tum Khan, 10
Ram Sahai v. Gaya, 136
10i;i06
Ranchodd^s v. Jugaldas, 134
Muttyjan v. Ahmed Ally, 27, 28,.
30 Rujjub Ali V. Chundi Ohurn, 139
Muzhurool Huq v. Puhraj Dita-
rey, 124 s
Sadakat Hossein v. Mahomed
N Yusuf, 175, 176
Sahebzadee Begum v. Himmut
Najm-un-nissa v. Ajaibali, 135 Bahadoor, 80, 88
Nasrat Husain v. Hamidan, 13 Saiad Kasum v. Shaista Bibi, 91
Nawab-Umjad Ally Khan v. Mo- Sajjad Ahmad Khan v. Kadri
hum4ee Begum, 101, 105, 112 Begatj, 105
Nizamuddin v. Abdul Gafur, 112 Sakina Bibi v. Amiran, 134 ,
122
Saligram v. Raghubardyal, 138
Nizam-ud-Din v, Anandi Prasad,
c
Saliq-un-niosav. Mali Ahmad, 117
182 Sarkum v. Rahariian Buksh, 131
Nobin Chunder v. Romesh Chnn-
^hah Abu v. Ulfa^ Bibi, 153 ^
t der, 3 Shaik Ibhram v. Shaik Suleman,
c Nur Kadir v. Zuleikha :Bibi, 179 ^ 105
Shaik Moosa v. Shaik Essa, 21,
33, 34, 96
Sharifa Bibi v. Gulam Mahomed,
Oomda Beebee v. Syud Shah Jo-
nab, 176
Shamiing v. Santabai, 151
v. M a h i n i
Sl^ikh KydraVuUa
Mohin, 1 t

J*athukutfci v. Avathalakutti, 120 Sheobharos Jiach I^ai, 142 c

v,
Pathummabi v. Vittil Ummachabi> Sita Ram !Amir Begam, 182
v. • ^
* *
24, 26, 27, 31 , 34, 182 Sitaram v. Shridhar, 34 ,
Persbadi Lai v. Irshad Ali, 133 Skinner v. Or<^e, 4
•
Phul Chaj^d v, Akbar Yar Khan, Skinner v. Skinner, 5
116, 125 ^uddurtonnessa v.» M
a j a d a
Pirans v. Abdool Karim, 127 Khatoon, 41
Pirthipal Singh y. Husaini Jan, 22 Syed Wajid v. Lalla Hanuman,
^,27 ^ 140
 TABLE OF CASES ^l

w
Taufik-un-Nisea v. Gbulam Kam- VV^ghela V. Shekh Masludin, 9
bar, 156 Wahid Ali v^ Ashruff Hossain,
.
127, 128
WahidunniBsa v. Shubrattnnj 25
Wazir-Jan v. Saiyyid Altafali, 97
»
,
Wazir Khan v. Kale Khan, 143
Ujaga7 Lai 136 -»
v. Jia Lai, Webbe v. Lester, 9 >

Umardarnz AH Khan v. Wilayat Wise V. Sunduloonissa, 176

Xliklian 88
V
Yasin Khan v. Muhammaa Yar
'
Khan, 25 >

Vadake Odakel, 166

Vitil v. Yusuf Ali Ai Collectoi' of Tip-
Valayat Hossein v. Maniram, 107 perah, 111

> i
 r » t .
^
^- '
c /
^
xii ,

TABLE OF ENACTMENTS CIT^D:

— '
c*
^
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

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
c
Indian Siicoession, of 1865 X — '

c
8. 92 ... ... ... ... (
... <*
... ... ... 94
8. 1.0 1 ... ... ... ... .•. •«. ... .. Oa
'
^
C* 1Q0 £9
fc
R *%/\J ••• ••• ••* •«« ••• a«« ••• ••• OM
Limitation, XV
of 18V 7— ^

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

articles 103, 104 ^ ... 160
Lower Burma of 1889,
Courts, XI 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
c
'. 35
.

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

ss, lGl-105 19
c C
 \

TABLE OF ENACTtVENTS CIT,ED Xlll

'

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 ...

 « <

C C c

•
c

*. »
 )

. PRINCIPLES OF
.MAHOMKDAN LAW...
'

CHAPTER I.

Introduction of Mahomedan I^aw ikto

* '

British India.
i

Mahomedan law introducedby 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.
 (

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
applied to of the law is

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 the of
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 force in Presidency Towns.

in —
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.

(
 M It
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." .

'Geo. Ill, c 70, a?i^ 37 Geo. Ill, c. 142— This section

2b
^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 theSupreme 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 provisions of the aforesaid s^a/w^es, for
trie

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.

 '
!
'
4 «^
MAHOtoDAN LAWc
c C c

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

c
Small Cause Court Calcutt^. at 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
be terme<J by others a Mahomedan is not enouph.
call hiinself or

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.

C
c«= r
 '
'

;
>
! /•
9
«
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 Privy Council
of the

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

•> » »
"(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. ,

>
b MAHOMED^ N T^AW r

f r

was not iherefore entitled to any share of the inheritance. But

the divorce was not, proved, and the widow's claim was allowed.
Had been shown that the deceased did, in fac^t, divorce his wife
it

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 marriage was cel^rated. In
first

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 a B{)ecial and
itself

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.
 ' '

\
'
'
1

EXTENT OF APl^LICABILITY '

lettingiup that custom (p). And it has been held by the* same
Co»jrt -Shat the Sjtmni Bora Mah^medan oS
community 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. sues C. (Euroj..fean)
(Mahomedan)
for a declaration of her the property, and to
title to
absjplute
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 a European. According to that
}s

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.

 '

'
\
I
'
'
8 MAHOIkfEDAN LAWf
. <

The Mahomedan law can, therefore, only wherj the

apply
defendant is a Mahomedan. ^ A., a Mahomed^an, borrows money
from B., a Hindu. (Here only dne of the parVes to the' transac-
•

tion a Mahomedan).
is 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, not entitled (to a decree against
is
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
being the time

( 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. »
 I
1
I

I
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. Mufassa^ of iMadras.
In the 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 above Act expressly recognizes

that the

custom, unlike the provisions of Act XIT. of 1887.

7. Mufassal of Bombay.
In the As to the Mufas- — 3

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

A. 89, 96; Dada v. Babaji (1865; 2 B.
I;- 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.
 1
.\

f
t

10
'

MA HOMED AN LAW
f (

In a recent case, the High Court of Bombay gave effoct to u

usage prevailing performing jites and cejeraeniea
in this count^ry of

at the graves of d^eased JMahohifdans, and granted an injunction

at the suit of theMahomedan 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 more favorable eye ^y
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).
I :

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

198.

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

c
c
 1 EXTENT OF APPLICABILITY
, , -.
/
i
11

9. Oudh.
|n
—
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 Central Provinces

In 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."
'-
1-

*. 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.
 c\

I
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
four sub-sects, namely, the Hanafis, the
^^into 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.

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

15. —
^ Mahomsdan Jaw applicable t6^ each sect i^ to prevail
^
as to litigants of *that sect, c

^ was so held by the Judicial Committee of the Privy Coun-

It
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.
{ «
 i
,
SUNNIS AND SHIAHS 1
/
'
IS
,

authority has been us for the theory that a Sunni woman

edited to

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 the
Shafei sect, after attaining puberty^
of

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 was held that she was at liberty to do
it 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 marriage with a Shiah husband, con-
female, aiter her
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

' 1

(«) (1864) 1 B.H.C. 236.

^

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

 14 V 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
once done so, trom rei:ouncing the new^ creed and
having ' '
reverting
to the old one. -«

c
 •

15

'
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
exp^-ess ?5uling of Mahomedan
in opposition, to the
commentators of great antiquity arid high authority.
was so laid down by their Lordships of the Privy Council in
It

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- •

though the contrary is stated to be the law

heritancp, in the

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

; Batllie,
J
>

(c) Morley, Introd., ccxxvji.

{d) lb., p cexxxvii. i

J
(e) (1897) 25 Cal. 9,18.
 «
c

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 Their tLordships pr(foeeded to^say f It

ImamiS,. '
:

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
C authority."

19/ Precepts of the Prophet Neithe/the ancient —

texts nor the*^precepts of the Prophet Mahomed should
be* taken so as to deduce from them new
literally
of law, especially when sucl;i proposed rules do
r^ks
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 in perpetuity, with an ultimate gift
family
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, was held by Amir Ali J., in his dissenting judg-
it

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
commenting upon the judg-
in
"
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.

c
c

c
c
 ABU HANII^A AND HIS* DISCIPLES / 17

seems to them extra*ra-

/
in a^cord^bce with the absolute, and as it

ganjt, »ppliiation oF abstract precepts taken

from the mouth jf the
Prophet. Those preempts may be cixceUent in thp,ir proper appli-
cation it
yould ^^ong to the great law-giver to
Bi^ Jae

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 Hanifa and his tRvo

disciples,
— **
It is a general r^le
differ-
HanafiJ law that where tiere
of interpretati*on of Ihe [ is
^
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 Lordships of the Privy Coancil
tlieir

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

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.

c
c

c
c
c
c

c >-
 • •
. CHAPTER IV.
Of SNjccession in General. ^

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

of a cfeceased M^h^medatl is to be applied
property
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 ill discharge of his debts;
expenses; secondly,
thirdly, in payment of thew legacies Jto the extent mentioned in* the
and the residue is to be divided among his heirs :
section.;

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 expenses and debts.
funeral
The provisions for tl^^e order in whish death-bea charges and the

wages specified in the above be paid, and the

section are to

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. »
 1

^^ \ MAHOMEDAN LAW c

o
The priority of debts over legacies is also, recognised
said
b^ the
AH, s. 105. Having
'

regard to the order in which fhe

debtsc are to be that
paid, 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 estateof 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 a by
^
*: 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
the law of the sect to which he
bj^ 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 the succession was governed by the Shiah law,
if

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

c B is entitled to succeed (m).

c
22. Estate Execiitor and
of in Adminis-
trator. —Vesting
The executor or administrator, as the case
may a deceased Mahomedan, is, under the.
be, of
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 pi^sent High Courts in exer,fise of powers under their
rtie

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
j,^:^?

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 sp efifi'^ gV>qrpg the moment of his y ,

death, and the devolution is»not suspended by reason

of debts being due from the deceased.
9
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 in immediately upon his death

— — specific
heir^ i^liardfe

(r).

(n)
It is

;
not, however, ithe
'—
ShaiU MoosaY. Shaik Essa (1884)
f
legal estate alone which vests

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, » •

•
S
»
 /

I.

22 MAHOMED AN LAW
in the but both the legal and the eqnitable estate.
heirs, 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. not clear how, under those circumstances,
It is

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 isnot 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 the correct reading of \^he passage

submitted, is

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 debt attaching to the estate of a deceased

ffgncill

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 extent of a share

to the 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 from th« deceased, provided that the
dcie
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

But where the estate

'(2.) immoveable consists, of
property, and the alienation m^de by aA heir '^of is
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
as regards personalty.
to executors
In that " a creditor of a
case, it was stated by their Lordships, that
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 It is trufe that under the
(6).

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

ALIENATT,ON BEFORE PAYMENT OF DEBTS 25

and it has now b^en had the righif to

decided that he was, —he
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 out the general rule of law
sets

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. ^ •

«
 '
^
(.

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 may not have
they
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 execution of a decree obtained against him. In
sale^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 doubtful whether a voluntary %ale by an heir in posses-
it is

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 decreeobtained 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 — the If represented by an executor or
estate is
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 BUmaji
v. (1895) 20 Bom. 338.
ig) Jofri Begum v. Amir Muhammad (188fi) 7 All. 822.
not
(h) Ilasan AUv. Mehdi Husain (1877)
1 All. 5f3, This case is

ceferred to htJafri Begam's c^e.

 LIABILITY OF HEJRS FOR DEBTS 27

^uit by creditor against heirs—

2SL 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 ih a
his^, debts, passed
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,
reason. of
by absence or any other cause, are out of
possession, so *as to convey to ^the auction -purchaser,
ifi of such a decree, the rights afid interests
exe^cution
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 JUalv, 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 make over
possession of the land to the
directing her to
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 mortgagee or a purchaser
|he
from him : Davalava v. Bhiinaji (1896) 20 Bom. 338.

Allahabad Decisions.
(e) A creditor of a deceased Mahomedan obtains a decree upon a hypo-
3
"
for'recovery of his debt by enforcement of lien
bond '*
thecation 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
for lecovery of his share
proceedings, sues the decree-holder as purchaser
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 : Awals v!
Muhammad^ 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

in possession of the estate, and attaches
against an^ heir of the deceased
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.*^
 •
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, the ground that, as regards
upon he is in possession cff the
theiy,

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 the pendency or determination of a suit by a
that
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
or against another heir in posses-
heir (^,),

sion of some other part of the estate. may, therefore, take it We

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. theory ap- Thk
•
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 anexe(;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
'*theMahomedan 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
isbrought 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
•

^rindfle of Allahabad rulings. The reasoDin^ of the

— *

Allajiabad High Court may thus be stateJ in tire w(^d^

of
" To hold that a decree obtained by a creditor of
Mahmood J. :

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
c
c 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, provided by s. 1, cl. 4, that a certificate

but^t is

shall not be granted ui^der the Act ^ith respect to any debt or
or letters
security to which a ri^^ht can be established by probate
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
willunder 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 Regulation Act VIII of 1827.
Bombay
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
ofthem 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 (

•
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
c
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), <

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

and of 1841 ;

(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 Calcutta, Madras, or Bom-
High Court^f ^

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,
ifthe 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 is situate for relief by a summary suit
jproperty
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 apprehended of misappropriation before
is

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.

 •
I
36

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.
^ A, a son B, makes a gift of the whole of his property to a
who has
(J>)
^ B gift, for he does 'not possess any inter-
cannot object to the
stranger.
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. I., 9;ch. Abdnl Wahid fiuran Bihi (1885

v. ) 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
A's lifetime which he could tran8mit to hi^ son
in

IJ %y wf^y of inheritance, and this explains the rule that the

Mahomedan law does not recogni^ any right of representation.
The may thus ^e g<ated
rule 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
Mahomedan " a mere
according to For, under that law, law.

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' open to the objection that B's
brought, it will be
is a
expectant righJas a possible h«ir of i^, should he survive him,
mere possibility which, under the Mahomedar? law, is not regarded
'*
as a present or vested interest. does not recognize any That law
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 ;

•^
to be the mistress
(or, as the District Judge has translated the
. is

petition, proprietor) of the taluka. Then comes

tljLe question:
what is tihe mterest which isgiven 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 by an arrangement between the plaintiff, a Maho-
that,
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 property in favour A 's
of the sou. Can the 'daughters, on»A's death, claim their share
of the inheritance, Uie renyinci^tion binding upon them ?• The
ok» is

answer to the question is furnished,by the present section ; for if

th« daugihters took no interest in»the property of during A's A
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, not denied
it isthat 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." are unable to foUaw the We
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.

 MAkOMEDAN LAW
'

40
r
f

p^d to him After her death, he "brought a r suit

by the mother.
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 issubmitted, any bearing on the point. The opinion of
the law officers in Khaniim JarCs case derives support from the
statement of law out at p. 37 ante, that the expectant right of
e^et

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

c
his funeral expenses and debts, it is because
specifi/) pro- of the
c visions of Mahomedanlaw 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

34.
c

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

the share of the inheritance which has vested, in

tior),
the time of his death.
him'^wilUpass to his heirs at

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, Ramsey's Moohumraudan
96 ;
Law of Inheii- ,

tance, ch, IX; Rurasey's Al Sirajiyyahf 43-44.

35. Joint —When

the members of a
Family.
:> 1

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),

Homicide as a bar to gliccession.— (I) Under

36. >

the Sunni law, a person who has caused the deatll of

another, whether
intentionally or by mistake, a

debarred from succeeding ^

negligence, or, accident, is
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 from inheritance, namely, (1) homicide, (2)
of exclusion •

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. .
 42 MAkoMEDAN lAw
( f

enactment of Act V of1843 abolishing slavery, and th& third by

the provisions of Act XXI of 1850 (q). The 'bar of of
(^ifferetlce^
allegiance, contemplated by the Mahomedan system of
as

jurisprudence (r), has no place in^Mahopiedan law as administered

in British India. ^

Of the disqualifications above enumerated, the etfect upon

all

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

c
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

*^ " So much of
((?) Section 1 of the Act runs as follows 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
• shall cgase to be erfforced as law in the
communion of any religion . . ,

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

" '
those relations by*
(3) iTistarit Kindred are all

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 go to the distant kindred. And if a
will

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.

 44 MAHOMEDAN LAW ,

• The which of the the

question as to r-elationa
belonging^to
class of sharers, or residuaries, or distant kindred, a^-e entitled to

succeed to the inheritaDce depends ou the circumstances of each

case. the snryivingfelatPonsbe* falfiier anda fatl^r's father,
Thus if

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 class of distant kindred, e.g,, a daughter's

tQt th^
son, and a daughter's son's son, the former will succeed to the whole

in^ieritance, being^one of the rules of succession that the

it near'**'

**==»=fBlation excludes the more remote. ^

38. Definitions. — In this part

True grandfather " means a male ancestor

(a)
''

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.

c " False "

c (6) 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

mother is a false grandmother.

Thus^the mother' a father's
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 the following and other illustrations in this Chapter

italics in

indicate the surviving relations. It will be observed that the sum total of
the shares in all the following illu /tlations equals unity.

Father, Husjand, and Wife.

(a) Father ... 1/6 (as sharer because there are daughters)
^
'
Father' s father (excluded by father)
Mother ... 1/6 (because there are daughters)
Jlother^s mother (excluded by mother)
Two daughters .

2/3 ,

*
Son's dauahter,,. (excluded by daughters)

(b) Ilushand 1/2

Father ... 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
rffthe 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.
Mother ^ /„

(g)
 *
>

(»

a »

r
 ac.A.:isx.xs o:

• Circumstances under which heirs menti

Sharers/
ci inherit as sliarers.

11
1. FATHER if t'/iere i^ a child or child of a son h. 1. s.

2. TTt u E at-«' nf edrxHE R in defa-Uit of father and nearer true grandfath

k. h. s. .,. circumstances as the father

i. HUSBAND ... <

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

r
C
4. WIFE (whether one or
more not exceeding four). " " ^'
» ?
I-

5. MOTHER 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, (/() Maternal— in tiefauit of mother and near

h. h. s. C whether one or tr.giandmother whether pa^. or ma
more. )
(

(J) Paternal
— ,, ,, » m

DAUGH^TER... .^. in def£.uit otr'^v't r

SON'S DAUGHTER in default ojf (l; son, (2) daughter^', (8) 1

son
h l.s. higher son's daiighto:*-, and (5) eqiial son's q

there is (only one daughter, or, in her abs'

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

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

(i>) SON'S SON'S DAUGHTER in default <of (l) son, (2; daughters, (3) son's so^
{5) so/t's son's son.
Where there lier absence', on
is
oiyy one daughter, tr. ti s
son's so'-i's daugPater will take J in default of (1) son, (2)

9-10. UTEBINE BROTHER ir default of

* (l) child or son's child h. 1. s,

AND (2) father, and

UTERINE SISTER (3) true grafidfathcr h. h. s.
 1st column
—9-
ill *
Shares.

If there be uonij of these reUtious, the father

•will succee 1 as a resiluary fTab. of Res., No.<3)
•
lul uiiuui Miiiiiiir be no child or child of a son h. 1. s i^
If tlfere ,

true grandfather will succeed as a residuary

default of father or nearer true grandfath
(Tab. of Res., No. 4)

if there
be
noneof
these
i

b ruth era or
re fire
in ^ : but when the mother ig entitled
other to the larger share ^, and the deceas-
iguiue, or uteiinc.
cases 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.

in default of ,

her and in termed i- |

! true grandfather /

*
i1 two
2
uiie takes
or 3. With the son she becomes a resi*
,.
>
more duary (Tab. of Res., No. 1)

r son's son, (4)

one takes
»0 ...
f equally among them whether they
are daugliters by the
same or different
only one hijiher
r
\ sons. With an equal son's bou she
t^, if ther^
be no become* a residuary (Tab. of Res.
^f»« two or more
; No.2)
I divide the one-
through th«^
j^i^

^. on takes
of (1) son,
^In default 3» With the son '^ son she becomes a resid-
uary ( Tab. of Ree., Ko. 2 )

1 mifi (iiiuglitors and

cne takes
son'4 diiughter,
tbt» 5« Wiih the son's sin's son, she becomes
, and (3) ioid son's son. residuary ( T»»f. of Rts., No. 2)

^
...one takes t^ ^ gqually among them.
 WIFE (whether one or
more not exceeding four).

r.
MOTHER .
•
..
if there is a child or child of a son h. 1. is.,(/r, if
sisters more than one in number, whether full, co

TRUE GRANDMOTHER., (a) Maternal— in ^lefauit Of mother and neari

or ma
tr.gi andmother whether pa^.
-
h. h. s. (whether one or
more. ) (5) Paternal
— ,, „ »»

7. DAUGHTER, in cief£.uit oi- Si'U

SON'S DAUGHTER in default of (1; son, (2) daughter^-,

(3) hi

h l.s. higher son's dai^ghtc: ,v,

and (5) equal son's son

there is jonly one daughter, or, in her alisei

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

|i|
c. 5 .,
'
(rt SON'S DA.UGHTER « in default of d) son, (2) daughters, ebcK 3) sow's son
will t
Where there is ou ly oue daughter, the son's daughter
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.

'

is oiii^y one daughter, tr. Ca her absence

on
Wliere there
s
will take J in default of (1) son, (i)
jBon's sou's daugliter

0-1(1 .
UTEhlNE BROTHER ir default of ^
(l) child or son's child h. L s.

AND (2) father, and

UTERINE SISTER (8) true graiid father h. h. s.

11. FULL SISTER &

(

12. CONSANGUINE.SISTKR ..

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
 t I
be
none of
these
4 i

e .110 brothers or
in ^ : but when the mother is entitled
jguiae, or utoiino...
other to the larger share JL and the deceas-
cases 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.

.
• ••
(
in default of
^lerand intenncdi- i
itrue grandfather /

one takes i two or §. With the son she becomes a resi*

,, 2 -j

more duary (Tab. of Res., No. 1)

son's son, (i)

II ...one takes 3 equally among them whether they
are dautjhters by the same or different
only one higher \
sons. With an equal son's ton shs
,
theyi be no
if become* a residuary (Tab. of Res.
Sft two or more
;
No.2)
divide the one-
iBoa through the

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

«in'a daugbter*. aud

.,, tiie takes
I oii'i daughter, tbc> y. Wiih the son's sin's so3, she becomes
'
md (3) son's son's son. residuary (Tnlf. of Rts., No. 2)

them.
...Due takes ^ gqually among
J

default of a
...one take full brother she becomes
// brother f With the
.

residuary (Tab. gf Res., No. 5^

default of
llsister.v^
!1 brother, and brother she
),<(. brother ...one takes •^f. With the consanguine
sister becomes a residuary (Tab. of Res.,
(wlu'ilier
No. 7) •
m relations that
<?

c o

9 <9

•\

•
n ,
 SHARERS 47

(j) ^-jVidow 1/4

, j/ot/lt't'y 1/4 (=1/3 of 3/4)
Father 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 ...
.
;/3
leather' ^father ...
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. ^

PU
True grandfv«tlier and true grandmother.
(1) Fat/ter\s mother (being a true jf^^- grandmother, is
excluded by father)
Mother's mother • 1/6 (being a true viat. grandmother, is
not excluded by father)
Father ... ,
5/6 (as residuary)

(m) Father'*s mother

Mother^s mother 1/6 (each taking 1/12)
\
}
Father' 8 father ,
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

motht> is excluded by the father's father

iVt'^6'— The father's father's
for he an intermediate true grandfather, the father's father's mother
is

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)
isnot 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 ... (excluded by father's mother
who is a nearer true grand-
J
mother.)
Father's father ... ,« 5/6 $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. •... the whole as residuary.
takfes •

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. There being only on^ sons' daughter
18).
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

points involvjd in the Table of
principal
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 41, below. It will be observed that the

s.

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
 c f

50 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 1/2=3/6 reduced to 3/7*

Pull sister 1/2=3/6 ,. ^3/7
C. sister 1/6=1/6 „ 1/7

7/6 1

^^(c) 2 full sisters .« .f. 2/3'<=4/6 reduced to 4/7

2 u. brothers (or u. sisters) ... 1/3=2/6 T, 2/7
Jfotksr ...c ^. l/6=*l/6 „ 1/7

7/6

<>=:=^d) Husband „ ... 1/2=3/6 reduced to 3/^

2 full sisters. ., ... 2)^=4/6 4/8
A/other ••• ... 1/6=1^6 1/8

8/6

(e) Husband ... 1/2=3/6 reduced to 3/8

Full sister ... 1/2=3/6 3/8
2 u. sisters ...
1/3=2/6 2/8

8/6 1

(iX Husband ,..

V ...
1/2—3/6 reduced to 3/9
2 Full sisters ... ... ^/3=4/6 4/9
2 u. sisters ... 1/3=2/6 .2/9

97fe »» 1

(g) Husband ...

1/2=3/6 feduced to 3j9
Full sister c... ...
1/2=3/6 3/9
2 M, sisters ,., «.. ... 1/3=^6 2/y
Mother ti> ,..
1/6=1/6 :. .
1/9

9/6 1

(h)i Husband 1/2=3/6 rdeuced to 3/10

2 Full sisters, 2/3=4/6 4/10
2 u. sisters 1/3=2/6 2/10
Mother ,
1/6=1/6 ,»c 1/10

10/6

(>) Widow 1/4=3/12 reduced to 3/13

2 c, sisters 2/3=8/12 8/13
Mother 1/6=2/12 2/13

13/12
 • DOCTRINE OF INCREASE. 51

0)
52 MAHOMEDAN LAW (

• *

41. Residuaries.no Sharers, or if — 1£ there are

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
as residual les.
Daughter ...
^ 1/3 j ^ ^
"^ote. —
The daughter cannot inherit as a share* when there is a son. But
ifthe 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 \ •

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

Note. — The son's daughter cannot inherit as*^a sharer, but she can
h. 1. s.

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
< No.
«.
Sh., 8).
 > >

• •

• »

» »

» »
 TABLE OF
ARRANGED IN Of
I — Descendants :

f 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. s.-the nearer in de 1.

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

IV. — Descendants of true Grandfather h. h. .<?.

. 11. FULL PATERNAL UNCLE.

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

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.
but there is a lower son's son,
iqual son's son. If there be no eqiui^ 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. equal
1 <?.

lywith 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 » .
,
.

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

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

^('»;.*o.*
.. 2/3 of (l/2)=i/3 )
.

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

Ao/tf— There being only one would have

daughter, the son's daughter
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).
son's son ... of (l/3)=2/9 *

^ny
iion 8 son's daughter ...
f/B of
1/3 (l/3)=J/9 )
^^^.^^^^,,i,,

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

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
Sons
',
Tnm'L l/Q /*'
son's .ton
Soils son's daughter •
^?^!n(ox
,1/3 of (1/3)
= 1/9, (^
)
as residuaries.

•
with
^^Qfe son's daughters in this case do not inherit as residuar^ps
—The
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 , ,

^f (1/3) = 1/12
^^ kesiduaries.
^on\s daughter )
jh \
» Sons son's daughter ... ) J
•
as a
Note—l^exQ being two daughtefS, the son's daughter cannot injierit
She *hercfore inherits as a residuary with the son's son's son (who
sharer.
is a lower son's son). The ion's son's daughter is entitled to inherit as a
is an equal son's «on in relation to
residuary with the son's son's son who
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
Father
1
/3 (as sharer) ^
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" "father" in ills, (n), (o) for

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. Brothers and sisters.
5^d 7.

(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) 2 Daughters ( or son's daugh-

ters h. 1. s.) 2/3 (as sharers)
Full sister ... 1/8 (as residuary N©. 6)

C) DaugT^i^r ...> 1/2 (as sharer)

''
Son*s daughtei 1/6 (as sharer)
Fwl sister 1/3 (as residuary No. 6) »

00 Daughter 1/2 (as sharer)

SorCs danghti'v 1/6 (as sh3.rer) ^
Mother ... 1/6 (as sharer)
Full sister 1/6 (as residuary No. 0)

(V) Daitghter 1/2 (as sharer)

•Soil'sdaughter. 1/6 (as sharer)
Husband 1/4 (as sharer)
Full sister 1/12 (as residuary No. C)

(w) Daughter 1/2 (as sharer)=6/12 reduced to 6/13

Soft's daughter \IQ (AS8harer)=?/12 „ 2/13
Hvaband 1/4 (as sharer)=3/12 „ S/13
Mother ... l/6,(as sharer)=2/12 „ 2/13
Full sister

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) Full sister 1/2 (as sharer)
C, sister 1/6 (as sharer)
Mother ...
1/6 (as sharer)
Brothel'* s son 1/6 (as residuary)

(y) Widow „. 1/4 (as sharer)

*
Mother ...
l/l> (as sharer)
Pat, mtble 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.
*

Classification
— r .

of Restauames, All the

• r f
residuaries are related
to the deceased through a male. The uterine brotherrand sitter
are related the deceased througl? a female, that is, mother, and
to

they do not find place in the list of residuaries. The Sirajiyyah

divides residuaries Jn to three classes (1) residuaries in their own
:

flight : males comprisedein tie list of Kesiduaries

these are all ;

(2) residuaries in the right of another these are the four female :

residuaries* nafiiely, the daughter as a residuary in the right

of son, the son's daughter h. 1. e. ss a
residuary in the
jthe

right of the son's s<fn h. 1. s., the full sister in the righf or

the and the consanguine sister in the right of the

full brother,

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, comprising descendants of the deceased,

the first class

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

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
take J, the father ^^ will
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 but as a sharer and " Return ''
alone, partly partly by (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

ifthe 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 s„ who, though reSiduaries, exclude certain
h. I.

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 have been seen that the father, though nearer in

it will

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 them, for brevity's sake, Primary Heiis. Next
shall call
to these, there are four, namely, (1) son's son h. 1. s., (2) son's

daughter h. 1.
s.,o (3) grandfather h. h. s., and (4)* true
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
the inheritance in the absence of thp
of

son. The sou's daughter h, 1, s., is the daughter's substitute, ^nd

 60 MAHOMEDAN LAW
inheritance in the
sHe always entitled to some portion of th«
is

absence of the son and daughter. The true grandfAher is always

entjtled to some shareor 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

point of view,
the
this

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 but neither of the two
'j

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 one of the heirs,
is

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 1/4

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

(d) 5F^/f... ... 1/4

^
Sister (f or c.)
, 3/4 (1/2 as sharer and 1/4 by Return)

(ti) Wife
8oiCs daughter
1/8
7/8 (1/2 as sharer and 3/8
^
by Return)
r

( f ) Mother 1/6 increased to 1/4

Sort's davghter 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 "

\
1/6 increased to 1/5 (each taking 1/10)
Mother's mother
2 daughters 2/3=4/6 4^'>

«:^ 5/6 1

(h) Mother ... 1/6 increased to 1/5

Baughter 1/2=3/6 „ 3/5
Son's daughter ... 1/6 ,, 1/5

5/6

(i) Father's mother "

Mother's mother
\ 1/6 increased to 1/5
• Full sister -
...
1/2=3/6 „ 3/5
C. sister .« 1/6 „ 1/5
*
.5/6 1

(a?) (1878) 3 Cal. 702.

iy) (190^) 30 Cal. 683.
 .r
RETURN. 63

( j) Full sinter ,}i ]/2=3/6 increased to 3/5

C sister ••• ... )/G „ 1/6
« U. siste^ ••• ... 1/6 „ 1/5

• 1
6/6
•

(k) Mother ... 1/6 Httcreased to 1/5

»
^ Full ^ister 1/2=3/6 „ 3/5
U. brother ... l/tJ „ 1/5

5/6 1

Husband •
(1) 1/4 , =4/16
Mother
Daugk^v m 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 ... 1/8

Mother ...
Dmightc r

(n) Wife ... ..

Mother
2 ^n^s daughters
 •\.
64
 '
,
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. above,^ •
(a), ^

'^
Return^' distinguished from '''^
Increase '\ — The Return is

the* convfcYse of Increase. The^case of Return takes place when

the total»of the shares is Uian -unitj
less ;
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
is no child
residuary^ for he cannot inherit as a sharer when there
or child of a son h. (see Tab. of Sh., No. I),
1. s. 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. have been seen from the preceding section

It will

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.

TheSirajiyyah 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 grandfather of the deceased,

of the brother

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.
»
 ^ *
DISTANT KINDRED *67
FIRS^ CLASS OF

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

after enumei»tiDg*certftin relations belonging to
Sirajiyyih which,
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). claimants in the same degree of

Among •

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). claimants in the same degree of

Among
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 a daughter's son and a
if*the claimants be

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 is where there are
simplest case 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 daughter daughter

• I I I

son daughter daughter

i I

daughter son daughter

In the ancestors differ in their sexes in the second line of

this case,
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
.,„ share of
j (collective
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 son
dajighter's daughter's
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. .

I I
% I I

daughter daughter daughter* daughter

•

. son
'

son
*

,
son
I

daughter
•
^
daughter

son
daughter
.1,
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 there are two or more

last case is when
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 daughter
I

son daughter

2 sons son 2 daughters

Here the ancestors their sexes in the second line, and in that
first differ in

^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 ',„ 4^7

daughter's daughter 3/7

The 4/7 the daughter's son will go to his two sons. The 3^7 of the
of

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 ... 4/7=16/28 (each 8/28)

daughter's daughter's son ... 6/28
daughter's daughter's daughters 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.
•

Second class of distant kindred.— In default

46.
of Distant Kindred of the first class, the inheritance
devdlves upon Distant Kindred of the second class
in the order enumerated below :

Mother's father.

( Father's mother's father, 2/3.

2.
\ Mother's mother's fatl^er, 1/3.

( Mother's father's father, 2/3.

3.
(
Mother's father's mother, 1/?.

4..
*•
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 ;
when the sexes of the ancestors
the rule being that

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) claimants in the ?;am^* degree of re-

Among
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 nor a consanguine sister is

a consanguine brother
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

The descendants of maternal relations •divide

(2)
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 their descendants, each taking 1/12 of l/3=f/36.
among 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 Sir. 54), In this cc«e, (se^
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 1/3, and this will be divided equally
is

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 ->

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
descend to his daughter. The full sister's share is 1/2 of 2/3=1/3,
this will
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 Distant Kindred

class of 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

grandparents, of 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)*- claimants on the same sidtj, those

Amoug
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) are claiinantbon the paternal side,

If there

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.
78 MAHOMEDAN* LAW . t
•

(2) claimants on the same side, those bi

Among
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

Acknowledged kinsman. Next in succession

52. —
**
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 acknowledgtnenlthe .confers upon
"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. be noted that the prohibition against bequeath-

It is to

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) Law Lectures, 1873, pp. 92-l)3.»

Tagore » ,

(/) 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 question is

— When the
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 the lapse of ninety years from the date of his birth.
till

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 us in the Introduction ^p.
tells
xxvij, of translations from
•
Sh'araya-u1-Islam.]

58.
•

Shiahs divide heirs

Division of heirs
«
— The'
•

into two groups, namely, (1) heirs, hj marriage,

and (2) heirs by consanguinity.

59. by marriage The heirs<»by marriage

Heirs —
are the husband and wife, and tljeir shares are a
fourth for the husband and an eighth for the wtf e,
" child of a child how low
if there is a child or
" " child of a son how low soever"
soever (not merely
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 daughter's son or a d»ughter^s daughter will have
a
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 cognates, for they are connected with the
all

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
as " distant kindred" in the Sunni law.
knqwn
 SHIAH « LAW OF INHERITANCE 88

workyig out examples, the to assign to the hus-

•
•In first step is

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 the claims of the fe5^reri^are, satisfied, and there are re-
afifer

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 the third* cfess* where m
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

each Iqrsinch of
taken, according to the rule, in^
male.
descendants, of a dout)le portion to the
The samerule applies'to great grand-children, and
remoter lineal descendants.^ «

r
ni'kstratrin. "
^

A Shiah dies leaving relations indicated in italics in

Mahomedan 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) a maternal grandfather or maternal

If there is

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 a
paternal grandfather or paternal
is

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 } 2/3 of 2/3«= 4/9

• g...
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

and aunts: —
,

govern the succession of ujicles

(1) claimants on the same side, and in

Among
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 ^
• •
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 „ x (5, 6)= 15/24
Mother . ... ... 1/6 ,^
3/4
= 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."

"Increase." — The
•

74.
Doctrine, of 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

• 1
13/12
—
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,
tlie deceased has left other
provided property besides
the said articles.
Baillie, Part II., 279. ,

Childless wido^.—
76. childless widow is not A
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

into Per-
(Guide) w^ich was translated from the original Arabic
sian 4)y fcurt moolvees or Mahomedan lawyers,* and from Persian
of Mr, Warren Has-
into English by Charfes Hamilton, by order
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 referredand subsequent chapters by •the
to in this

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 Act declares that a person ?hall be deemed to have attained
the

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 required to make a will
writing is

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

 •
•
\
WILLS • 91,
\
tamlik'nama not prevent it from operating as a
(nssigninent'^,
will

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 enjoy the income of the property, and that at her
life

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
would be excluded fiom inheritance by the son. [If ihe
testator, for he
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 and a daughter. To the
soft
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^; Explanation. Under the
Baillie, 616, as to
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" 671). But this cannot happen if the
(Hed.
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 and 1/3 for the
for the son,

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. *
 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).

*
— Under the Shiah Lavif
» i •
*
^
Shiah Lhw. 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 payrpent of funeral
his estate after
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
:
persons whom- the to

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 that the limits of testamentary power exist solely for
is

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 A's death, the legatee
heirs. 'After
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
 .
(
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, " a
by way^ of remuneration, is

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 Sharifa
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.
 \
']
WILLS 95

^hifih Law. — Under

the Shiah law, the legacy would, in snch a
the
case, pass to the heirs of the legatee, unless it is revoked by
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
implied, is when he does* an act from which the
revocation jaay be inferred.
It is doubtful whether d«iy that he ever made a
if a testator

bequest, the denial operates as a Revocation but the be^er ;

opinion seems to be that it aoes not Hed. 675 Baillie, 619. :

;

87. revocation A bequest

Implied 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) Abequest 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, be of the same property^ to

though it

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 the execiiW of the
that 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
toMahomedans. 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 theprarisions 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. important to note that when there are
It is

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 of his festate g,£ter, payment of funeral
J
*

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
highlj^ pro- one which it is

bable will issue fatally" (Baillie, 543). But it must be noted that
mere apprehension of death is not sufficient to constitute marz-ul-
maut further necessary that the marz should have ended
: it is

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 C.W.N. 57 Muham-nad Gulshere Jfhaji v.
(1*898) 3 ;

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 subsequently reaches such

marz-ul-'maut^ if it

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

issubject 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, death-bed A 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
" in health."
death-illness as
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.
 %

'

).
4
•

GIFTS, WAKFS,
•
AND

PKE-EMPT-ION.
100

,
CHAPTER Vm.
^
Gifts. •

" "
94^ '•*
Gift
defined.;-^- ^trans- A Mba of ^ift is
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. making gifts. Every Maho-

Capacity for —
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 immovable property should be
gift of
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

of his property by gift in rfavor of a stranger, to the entire
i;vfiole

exclusiom of his heirs. , • ^ %

» • •

98. Subject plaims and pf gift.

— Actionable
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 derive a benefit
" "
the donSe may ; 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
not been for the wrong n?)tion which prevailed at one
it
'

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 '

of a gift not jiusceptible of actual possession, as in the case of

is

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

isnot 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 property from attachment.
the 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 bya mortgagor of his equity redemption^ of
But has been held by the High Court of Bombay
it

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
•

the property at the time of gift

. . .
/
valid, if 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. property.— A gift of property
Gift of future
not actually \n existence at the time of gifr,«is void.
• I linst rations. •

A
makes a gift to B of " the fruit that oe produce'd by his
(a) may
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 (1888) 11 All. 1,10: Anwari
i/r/.y^w
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 pendency of the suit. The gift is void, for it has not
dies during tile
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 Tajudin (1888) 13

v. Bom. 156 Rahim Baklish v. Muhammad
;

Hasan (1888) 11 All. 1.

Thi3 rule virtually a corollary of the propf)8itioii that delivery

is

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. the nephew could not claim to continue the suit as

(a),
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 that the gift being inchoate, B has got no rig'at to sue.
is

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 was brought by B with A's authority ancl on his
if it

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
and it appears that,
itself authorises the donees to take possffftsi%n, fact m
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
act on the part of the donor
thf tenants to attorn, to the donee is ai>
>

•
which has the effect of transferring the ownership.]

(b) A Government promissory notes may be completed by

gift of
endorsement and ihe d«5nee
delivery to Naicah Umjad Ally K\any,
:

Muhumdee Beguvi (1867) 11 k. I. A. 517, 544.

(c) A zamindari rights, held under Govertment,
gift of 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 ." dies A
before the transfer is effected. The gift is void Ag a Mahomed Jaffer
:

*
V. Koolsom Beehee 25 C^l. 9, 17.
(1897) receipt being ^'not
[The
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'adeed 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
" There is no doubt
possession could be given to the donee (^u\
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 he giveS, namely, such right as he himself has
thatt, which :

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 tiie possession of a bailee, a trustee, a

in

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' an un- is
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 gift being merely (batil) : the

invalid, may be it
perfected and. rendered valid' by
subseq^uent partition and deli very ^to the donee of the
* *'
doifbr's share. .
* '^

Exception.
— But wheil3 a property which
is capable
of partition h^ld by ^evqial co-sharers, any one of
is
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 — (a).
A, who is the owner of a house, makes a gift
(1)
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 separate number in the

Government, having a
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

" the doctrine
of the Privy Council observed,: 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, the gift
if

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
" Seisin in cases
the donee. of gift expressly ojdoine(J, and
is

consequently a complete seisin is a necessary condition :" Heel. 483.

Madras Presidency, —The Mahomedar* law of gifts 'is

administered in the Madras equity and

Presidency as a matter of

good conscience^ and the High Court

Madras has accordingly of

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; 516 The

principle of the present section
Baillie,
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 24 Mad. 513.

(1^901)

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

presume the subsequent
will

holding of the property to be on behalf of the minor :•* Ameeroon-

nissa v. Ahadoonnissa (y).

A by a mother to her infant child does require a transfer

gift
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 appointed mother is

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. by hnsband to wife.

Gift —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 rebut the inference which
prot^erty,-,
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 condition which derogates from the
a
completeness of the grant, the condition^ is void, and
the gift will take effect as if no cQndition were
*
attached to it.

But has been held by the Privy Council, that

it
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 17 Bom. 1, £•]
appeaj, ,

(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.

A. 517. \^Qncere whether the condition
I.

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 toa particular individual. '^^onditions TH
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 would seem lo be the ground
latter 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, not a condition which derogates from the completeness
is

of a grant within the meaning of the present section. In this

viewy the section may be read as follows :

" When is made subject to a condition which derogates from the

a gift
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
 ,
GfFTS lliS

/
sk»re of dominion, over the corpus of the property given the donee, the
'p
<;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, an incomplete ^ift by the

is

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) the gift is a sadaka, made with the

when
xuerit i'i the sight of God, e, (j.,
object of acquiring
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 once completed can only

gift
law for
b6 revoked by proceedings in a Court of
cancelling the gift.
Hed. 485 ; Baillie, 524-528.

Shiah law, —The Shiab law differs from the Uanaii law in the

Following particulars :

a gift to any blood relation, whether within the.prohibited

(a)
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 isa sale in

all respects, rnd delivery of possession is not neces-
sary to validate the transaction.
Illustrations,

(a") A Mahomedanhusband 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.
;

• •

• • •
•
•
116

^ CHAPTER IX.
Wak'Fs.
lt6. **
Wakf
.deficed.—
'

2/7a/L/ is a dedication A
in of
perpetuity 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 open is 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 thepoor 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 the extinction of the appropriutor's 'ownership In
it signifies

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

" endowment "

following sections we have used Rometrmes the word
• "
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.

not necessary to constitute a y^^a^/* t^at th^ term

It is
'^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.), •

.Wakf may be testamentary

— A119.
i/^akfmaj be created by acfr iiiter
or inter vivos.
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, has
it
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 ^
,

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 property was not

the 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 ifthe 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 Mushaa.-— A mw.9Aaa or an* undiv-

of
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 inalienable and inherit-

property is

able. — When property dedicated^ to religious or

is

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
the founder's death: see Fatmabibi v. Advocate-
-After 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

family in perpetuity, not accompanied by any
settlor's
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 have been
it 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 came within
therefore
the definition of wakf. But this contention was ovem^ed, and
it is now established that a settlement in favour of the settlor's

and descendants not there a

children his

Bubstantiardediqation of the prcfperty

is valid,
to
tlnless

religious or
is

cHaritable "1
purposes (see the next section).

hag already been stated above that waif property is inalien-

It

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-
their descendants in perpetuity, and
perty "on their children and
use the term **
in the settlement believing that the mere
wakf

(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
by a mere verbal
*'
hol4 otherwise would be to enable every pei'feon
"
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 immoveable properties for the be^^B^t of their children and
all their
"
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 Hussen Miya, (1873) 10 B.H.C. 7, 14.

v.

\p) Abdul ^ata Maftomed v. Rasamaya (1892) 22 Gal. 619, 634.^

'
(§') Mahomed AhsamuUi Amarchand Kundu
(1889) 17 Cal. 498,
v.
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 lands to defray the expenses of a mosque, to give
»the profits of

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 indigent
the poor,
^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 manifestlyis* 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 amount compared wit^ the
siiu^ll
«

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 were shown that the customary uses we^'e of such magnitude as
indeed it

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

**
If a man
illusory (s). ^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 is whether
test in all these cases
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 **
It WiU be so,
Lordships observed : 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 family trusts upon

of failure of
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 isvalid, 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 a
present section relates to the question of the validity of
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

that **if the condition of an ultimate

theory, uo longer tenable,
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) iscompetent to perform those duties, though

they nia} perform such of the duties attached to the
as are of a secular nature.
>
wakf >

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

rinssain Bethee v, Hussain ^Iwrif (1868) 4 M, H.C.
in) 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 inmy 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 bybut such appointment cannot be
will ;

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.
;
debt contracted A
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 mutawali* to grant leases.

of —A
mutawalL should not lease wakf property, if it be
agricultural, for p, term exceeding three years^ and
ifnon-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 be removed
may 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
itcan 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 specificportion ^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 Gudh it is regulated by some "other law,"
and in

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 by or against Hindus, In this wise,
wer-j prefered

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
of
grourid* of vicinage, does not extend to estates
large magnitu,de [ such as villages and zamindaris],
but 9nly to houses, garcjens, and small parcels of
land" (0:
*
Illustrations.

to
CI) A, who owns a piece of land, grants a building-lease of the land
B. B builds a house on thd land, and sells it to C. A is not entitjed to
to
pre-emption of the house, though the land on which it is built belongs
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.
•
>

*
(;•) Trip^ol Sin^ (1867) 8 W. R. 437.
Gooman Sing v.

(k) Beharee Ram v. Shoohhudra (1868) 9 W.

R. 455. -
;
Mahomed Hosseinv. Mohsiii ^Zm(1870) 6 B. L.*B. 41, 50; Ihdul
(0 »
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 not an appendage of proporty.

is 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 ;476-480, 494, 495. The rig^t of

Baillie,

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 claimed by two or more persons on the

pre-emption is

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. —
has been held by, the' High
It
Court of Allahabad, that althouo;h the rules of the
Mahomedan Law of 8ale have
superseded by the beei;^
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
ifthere 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 pre-emption in which is

claimed, — whether
right
be co-ownership, or participation
it

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.
Amib AH
•

^ »

iVJO(^ 22 All.
(u) Najm-7(ti-nism\. '5iS. » ,»
» >

* ' '
>
 136 , MAHOMEDAN LAW

the time of the but at the date of the suit for

sale,
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 the exe-
at'th^e time of '
'

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 Mahomedan. Hence no right of

a

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) v. Mahini Mohan (1869) 4 b/L. R. 134.
Kudratulla
^
Uwarka Das v. Hvsain Bakhsh (.1878) 1 All. 564 (Hindu vendor)?
(b)
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 contemplates both a right and
of pre-emtion

an obligation, and if a^non-Mahomedan were allowed to pre-empt,

it vrould allowing him the'^^righl ^'ithcmt the corresponding
iJe

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.
•*
cannot, ... in We
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 has been held by the Allahabad High

hand, it

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 purehaserts as a
conveyed to b^th tfne
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.
A, B, C, and D own each a house situatetin a private lane commofi
(c)
toc^ill the four houses. A sells his house to B. Here B, C, and D are "partici-
the right
patoK appendages" of the house sold,^thc appendages being
in the
third of
of "wa^- and C and D are each entitled to claim pre-emption
of a
without
the^ouse even t^iough the salec is made to a shafee alone
,
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
" The
inthe words of Garth, C.J. :
Object of he rule [of^pre-
emplion] ... is to prevent the incqnven ience which may result
to families pnd communities the introduction of a disagree-
fron^
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,

Necessary forms to be observed.

14J8. A person —
who would otherwise be entitled to the right of pre-
emption cannot vcUim the right, unless
he has declared his intention to assert the
(1)
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 is bound the acc^ ajid
pre-emp^or '
fc/
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 prevent order t6

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. delay of A
twelve hours was held in an Allahabad case to be too long {i).

And it pre-empfor, on
was held in a Calcutta case that where thcf

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.

499, 530
Baillie, 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 *

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
the
portion of the property and leave the wo^st part of, it with
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

of the
physical possession of the property, or, where the su^j^ct
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.

•
•
'
.
O c
 »
»

* • • •
9

• »
0'

FAMILY RELATIONS.

9 >

« •

1« •
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 presumed^ in the absence of evidence,

is

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, obviously erroneous.
is

Note the provisions of the Indian Majority Act, 1875, do

thai-

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 ^t is incumbent
iddat^f^\a(i^ 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.
• 350-355. See
Hed. 1?8, 129 ; Baillie, 37, s. 202, below.
•

161. Differedce of religion. — (1) A Mahomedan

Fyez Bukgh (1874) 15 B. L. R. App. 6 Bada

Pooiwo Bibee v. rannism ;
(r)
• ^
V. iTfo/ui«aZa(1871)7B. L.
R,442.^
• /

•
148
'

MAHOMEDAN LAW

may contract a valid marriage wi^ a woman who

believes in a revealed religion, ( that is, Chris-
tianityand 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.

The marriage of a Mahbmedan female with a

(2)
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 of 1872 ; XV
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 prohibited from marrying (1) his mother or
is
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.

Prohibition onthe groand of fosterage.—

164.
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^ ,

*
Hed. 28, 29 ; Baillie, 31, 153. Thus a man is prohibited
from mar/ying his wife's sister
during The his wife's lifetime.

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 a valid

marriage.'*-A valid
of

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
marriagCf (as distinguished from a ,valid
invalid
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 marriage j, has this elFect
illegal that children born
during the continuance of the contract are regarded
as le^timate. r < o t c 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. boy or a girl, who

—A
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
marriage. The right to
fa/ —
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;. apostasy of the guardian from
,
the
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 Reference to Muchoo's case, it was held
an^
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
ot*
"option 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.
*

— When the
> •

•
172. Effect 0^ repudiation. "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

isvalid 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.

c
<
(
 *

I »
MAINTENANCE OF WIVES 153

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^^ (//. she may apply for
*0r,^
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

conjugal rights— of
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 ;
450.
BaiUiej
(K) Aga Mahomed Jaffer v. KooUom Beehee (1897) 25 Cal. 9.

(0 In ;•* Ahdul All (1883> 7 Bom. Din

180 ; in the matter of*
Muhammad Shah Abu v. Ul/at Bibi (1896) 19 Ali. 50.
(1882) 5 All. 226 ;

(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 by the
be, ^ioo, that g^oss failure
husband of the perform'ance* of the obligations which
the marriage contract imposes an him (s. 166) for
the benefice of the wife, mignt, if propeyjy proved, ,

afford good groiyids for refusing to him the assistance

of th^ Cciirt" (m).
Before leaving tjiis subject, it may be noted that a suit for

jaetitation of marriagp will lie in a Civil Oouft in British India*

•*There can be no doubt that unless a man is entitled by means of
the Civil Courts to put to silence a woman, who falsely claims to be
his wife, the man and others may suffer considerable hardship, and

his heirs may be harassed by false claims after his death." *'The
Court trying such a suit wi^^ of course take care, before grafting
a proved that the(def«3nd-
plaintiff a decree, to see that it is strictly
ant did seriously allege that the disputed marriage had taken

place, and that the plaintiff

did not acquiesce in the claim or

allegation of the de^ndant as disputed marriage, and

to' tke
further that in fact no marriage had takea place , between the
parties" (w).

'
—DoWER.B.
c

178. '*
Dowtr'J defined.
— Mahr or Dower is a sum
of moi^ey or otlier property, which the wife is entitled
to receive from the husband in consideration of the
*'
mafriage.
See Baillie, 91, and per Mahmood, J., in Abdul Kadir v. Salima

(1886) 8 All. 149, at p. 15/.

Hed. 54.
(Va) ^ •> .

Abdul Kadir Salima 8 All. 149 XunJii v. Moidin (1888)

ay v. (1886) ;

11 M^. 327 Hamidunnessa v. Zohiruddin (1890) 17 Cal. 670.

;

^ee the c^e cited in n, (j), q. 153, above,

(k)
t '
Mir*Azmat Ali v. Mahmud-ul-nissa (1897) 20 All. 96.
(7i)
t *
c
1
 • •
DOWER 155

Marriage under the Mafomedan law is a civil contract (s, 155,

ante)^ and it it likened ]>• a contract of sale. A sak is a transfer
of property for a price. In the
contract of marriage, the **wife"
is the property, and the "dower" is thg price see the AHahabad ;

cas^ cited abtfre. •

Under the MahomecJan law, a husband may divorce his wife at

any time he likes without assi§[ning any rAson. The object of
dower is*
upon the capricious exercise by the
to serve as a c)!eck
husband of hi» power to dissolve the marriage at will. To at^in
thjs end, it is usual to split up the amount of-jthe dower into two

parts, one payable on demand, and the other pajiable on the

dissolution of the marriage by death or
divorcej^

179. Amoutit of dower.— The hlisband may settle

any amount he likes by way o£ dower upon his wife,
though it may be far beyond his means to pay, and
though nothing may be left to his heirs after payment
of the stipulated amount but the amount should
»
;

not^
in any case be less than t(?n dirrns,

Hed. 44; ^aillie 92 Sugra Bihi v. Masuma Bibi (1877) 2 All.

;

573. A dirm is *'a silver coin ^ene^aliy in value about twopence

sterling" Johnson's Persirii, Arabic, and English Dictionyy.
; It
is equi\ialjnt in weigjit to forty-eight barleycorns (jau) according
to the following table 1 dirm=z6 dangs
: 1 dang= 2 carrots ; ;

*
1 carrat=:2 taswi^S] and 1
taswtg =2 jaus
Shiak Law— Under the Shiah law, there iti no i fixed legal
minimum for dower. (Baillie, Part II, 67,
68 )t
>

180. Dower may be fixed after marriagei— The

amount of dower may be fixed either before or at the
time of marriage, or even subsequent to the marriage

^ 181. "
Proper" dower. — If there is no express
stipulation as to the amount of dower, the wife
is

entitled tO'^properV dower {mahr-i-rnisl)^ even though

the marriage may have been contracted on the express
^ 1

^
i_>:i_
(p) Kaniav'Un'Nissa v. Ilussaini Bibi (1890) 3 All. 266. •
.
,
 156 MAHOMEDAN LAW « «

condition that she should not (claim any dower. In

"
determining what is proper "..jiower, regard is' to be
had to the amount or value of (Jower that may have
been settled upon other female members of her
,

fatner's family,' such as her paternal sisters or aunts.

Hed. 45, 53. Baillie, 9i, 95.

Shiah Law, — The "proper fiower" under the Shiah law should
' *
not exceed 5(W dirms (Baillie, 71)*
'

aad " deferred.''— The

'' ''
182.
Dow^r prompt
am6unt pf dower up into two parts,
is
usually split
**
one, called prompt," which is payable on demand,
^nd thebther, called " deferred," which is payable on
the dissolution of the marriage by death or divorce.

When it is not specified whether the dower is to be

'* " **
prompt or deferred," the rule is to regai'd the
whole as " prompt." •
, ,
*

In support of the secona proposition set eut above, see the' Privy
Council decision in Mirza B'edar Bukht v. Mirza Khurram Buhht

(1879) 19W. R. 315, awd the Full Bench decisions in Ahdul

Kadiry. Salima (1886) 8*All. a4(), at p. 158, and Masthan
SahiSY, Assan Btbi\lS99) 23 Mad. 37L On the other hand, it
has been held in two Allahabad cases, both decided in 1877, that
when, at <the time of marriage, it is not specified whether the •

dower is ** prompt," or ** deferred," payment of & pprttoh only of

the dower musl be considered ** prompt,*' and that the amount of
such portion is to,b€ determined with reference to the position of
the min and the amount of the dower, what is customary being at

the same time taken into consideration (p). Accordingly, in one

of those cases, the Court determined that one-fifth only of a dower

prompt," the wife having been

'*
of Rs. 5,000 should be (ionsidered
a prostitute, and, in the otller, it held (following Eaillie, p. 1.26)

that 'a third of a dower of Rs. M,000 was reasonab'ie

" in a Bombay
a^s prompt" dower. Similarly it has been held
cage, decided in 1865, that no specific *amount of
'dower having
—,^ .
— I

'(«) ^Mdanv. Mathar Hiukn^ {Ull)

\ All. 483 j Taufik-un-Nuta v.

, Ghviam Kamhar (1877) 1 All. 506.

«
ft
ft
 . .
DOWER 167

•'
been declared prompt," one-l}iird of the \vbole migbtbe considered
** "
prbmpfc (q)» ^he Bombay case was decided several years
before the Privy Council case cited aboY4, and the latter case does
not appear to lAve been bright' to the notice 6f the Court in " the
two Allahabad canes referred to above. The pomfc, however, may
now be taken as settled by the decision of the Privy Council in
Mirza Bedar* 8 "C&Be. -. o • >^ »

>

" "
183. Wife's right on opn-payment of prompt
dower. Tkough
— the wife is bound, as a necessary
»

consequence of the marriage, to render conjugal rights

to her husband, «he may refuse herself to her husband,
** "
if the
prompt dower is not paid when demandod; but
once the marriage i^ consummated, sho has no right
to refuse herself to her husband, though the
"
prompt" dower may not be paid.
•
»

See section 177, antCj and the cases there cited.

184. Nature of widow s

cla?m for dower. The —
widow's daim^ for dower is only a debt chargeable
against the husband's estate, ^nd it., must, like other
debts, be paid before legacie^i ana* before distribution
"*
of the inheritance.

See s. 21, ante, ilnd the cases cited in the next section. See
ako Bhola Nath v. Maqbul-un-ntssa (1903) 26 All. 28, at p. 20
ante, A dower-debt has no priority* over other d^bts '»(Mac-
naughten, p. 274).

185.^ Widow's right of retention. The widow's —

claim for dower does not' entitle her to a lien on any ^

specific property of the decelLseS husband. But

when she the property of her
is in possession of
deceased husba»d, having obtained such possession
lawfully and without fo^ce or fraud, and her doweV
or any part of it is due and unpaid, she is entitled as
'

against the other co-heir:S of -ter husband to retain

(f ) Fatma Bihi v. Sadruddin (1865) 2 B. H. C. 291.

•
 158 MAHOMEDAN LAW

that possession until her dow0? is The

paid (r).
right of retention is extinguished on payment of. the
dower-deKt, but the wjdow is <he'n bounS to account
to the other heirs for the
profi'fcs "received by her (5).

Explanation,^— Possessionnot lawful' within, the

is

meaning of this section' unless it .has been delivered

by the husband 'or by *the /ither heirs after nis death,
or unless, it.has been obtained
Ixy the widow under
an agreement with her husband, or with.th^ consent
or acquiescence of the other heirs ; but it will be
^

presume(i to be lawful, unless the** contrary* is

shown (4). •
•
llluitration. «

A widow and a sister. Some time after A's death, the

dies leaving a
widowapplies to the Collector to have certain lands forming the entire
estate of A registered in her name, alleging that she hfcs been in
j>,ossession
of the lands by right of inheritance, and also on account of her dower. The

application is opposed by the sister, but the la'ndi, are registered by the
Collector in the widow's name. After ten years, the sister sues the widow
^

to recover her share (three-fourths) in the estate of A. -vfidoW con-

J'he
tends that she is entitled tg continued possession and enjoyment of the
estate until payment of her The widow is entitled to retain the
doVer.
possession until her do jver is satisfied,* anV the sister's suit must be dismiss-
ed ; Behee Bachv7i v. Sheikh Haviid (1871) 14 M.I. A. 37J. ..[Here the
widow was in possession at the date of the suit, and the iftivy Council held
that the pt'ssession was lawful, though the sister h^d opposed the appli-
'

cation of the widow to have the property transferred in her name. The
reason would appear to be that the sister took no steps 'whatever for a
period of ten years t^ interfere with the widow's possession, and this would
amount to acquiescence on the part of the sister :
*&., pp, 383, 388, 389.]

The language of the first portion of^this section is tak eft"' almost
rer^a/m from the head-nT>ie\>f id Twam' Begam's case reported in
16 All. 225, which sets out the effect of the decision in the Privy

Council case cited in the above illustration. In case their

^that
" The
appellant (widow) having obtained
a*6tual
Lortlships said:
c

*{r) Behee Bachun v. Sheihh E*qmid (18?1) 14 M. 1. 1. 377,

^-(«) 7&., p. 384.

*•
(0* Amanat-vn-Nissa v. ha^fiir-vn-Jiissa (1894) 17 All. 77; Muhammed
Karivi-ltllah Khan v. Amani Begavi (1896) 17 All. 93.

«
 . » DOWER 159

and lawful possession of tile estates under a claim to hold them as

heir^nd for her dower, their Lordships are of opinion, that she
is entitled to retain that poesessioij until her dower is satis-
fied. . . t . . . !
Aot necessary tf) say whether thte right
IS

of the widow ^n possession is a lien 'in the striet sense of the tenui

although no doubt the right is so st'vted in a judgment of the High

Court Hoosegin Y.^v^svmfit Khodeja (10 W.R.
in a <vase of Ahrne(l

369). Whatever the right may be called, it appears to be founded

on the p(lwer of the widow, as a creditor for her do^r, to hold
the property o>her husband, of which she has lawfully, and wfth-

outv force or fraud, obtained possession, until her debt ia» saifisfied,
with the liability* to account to those entitled to the property,
» »
subject to the claim for the profits received,"

186. Naturti of the above right.— (1) The right

of the widow to retain possession of her husband's
property until satisfaction of the dower-debt, does not
carry with it the right of selling or mortgaging the
* ^
property {u), ^

(i))
» The right of retention
personal entirelyis a
one, and it cannot therefore, be transferred
by sale, gift,
or otherwise (v). And ^he right being a personal
one, it becomes extinct on the widow's death, al\d it
cannot therefore pAss to her heirs on her death (w).
But the right t^ recover the dower, (as distinguished
from the right of retention^ is a right to property,
and it will'pass to her heirs on her death*

(3) widow's right of retentiofi is not alright

T^ie
of lien* such as is obtained by a mortgage. Hence a
mortgagee from her' husba^?i^> is entitled to sell the
mortgaged property, though she rpay be in possession
of the property under a claim fpr her dower, and she
ishot entitled to' retain possession as against a pur-
chaser at such a sale*(^).
_ _ ,
_ -

(m) Ckuki Bihi v. Shams-u^t-nissa^l^^i) 17 All. 19.

(f) AliM7ihammad\,Azizullah0^^y)^^^^^^^' *
' «
(mj) Hadi All \.Akhar AliiU^%)2Q^'R. 2^2.
(x) Ameer Ammal v. Saiikaranarayanan (1900) 25 Mad. 658.* ^

s
s
 * •
160 MAHOMEDAN LAW

(4) The mere fact that the wmow is in possession ^

of her husbfind's property und^r <a claim' for her

dower, from maintaining ^ a suit
will not preclude her
to recover the amount o2 the dower (y).

187, Limitation period.— (1) „ The period of

limitation for a sui^i to recibvei^^'proriipt'' or "eligible"
dower is three years from the date rwhen Jhe c^ower
is demanded and refused, or (where during^ the con-
tinuance of the marriage
t D no such demand has been
^

made) wher the marriage is dissolved by death or

^ Tic
divorce. ^

(2) The period

of limitation for a &uit to recover
'*def erred" dower is three years from the date when
the marriage is dissolved by death or divorce.

Limitation Act XV of 1877, Sch. II, Arts. 103, 104.

C—-Divorce. c-
*
c

188. Different forms of divorce. — The contract of

marriage, under the Mahomedan law, may be dissolved
in three ways : (l)^by the husband at his will, and
*

without the intervention of a court of law ; (^) by *

mutual coi?sent of the husband and wife,, also without

the intervention of a coujt ; or (3) by a judicial
decree at the' suit of the husband or wife. But
the wife cannot divorce herself from her husband
.

except by obtaining a judicial decree in that behalf.

When the divorce prccc^'^ds from the husband, it is
called talak (ss.
189-t94) ; and when it is effected by
mutual consent of the hugband and wife, it is sometimes
called Jchula (s. 195), and sometimes mubarat (si
196).
c
A divorce may be effected by w.^iting as well as by word of
month.

^
(y) "Ghulam AH v. Sagir-ul-Musa (J 901) 23 All. 432.

i
4
 TALAK 1^1

Divorce bjjtalak.— Any Mahomedan

who
189. " divorce his wife without
has attainal puberf.y, may
Qii her part or without assigning
any misbehavioui;
*
any cause." • »•

208.' It is essential to
^facnaghten, p. 59 ;
Hed. 75;-B^illie,

the validiV of a tala/^ ,that husband should have ayained

tl^e
*
puberty.

190. immaterial. --i^o special

of ta?ak
Form
to constitute a vahd tarak ;
expressions are necessary
but it is necpssary that the words used mi^r.t dearly
to dissolve the
indicate the intention of the husband
marriage (2), and that they must be addressed,to
'

the wife (a).

divorce
191. Divorce by talak how effected.~The
is consummated, may
by mlak, when the marriage :—
be effected in any of the three following ways
declaration of talak, followed by
Yi) by Si
single
abstinence from sexual intercourse for the period of
iddat (called talak ahsaw) ; 9^/

talak repeated threff times,

(2) by a declaration of
of tahr (as
once'durli^g ea*ch successive period
of meustruatipn), and
^»3 distinguished, from period
accoriipanied byabstinence from sexual mtercourse
taktk liUsan) or,
until the third pronouncement (called ;

of talak repeated three times

(3) by a declaration succession
at shorter intervals or even in immediate

{b) (called talak-ul-hidaat),^

the
When the marriage is not' consummated,
divorce may b« accompUshed-by a single declaration _
*
•oi talak. •
^

'~(^rihrahlm v. Syed Bihi (1888)^ Mad. 63. See also Hamld AUy.
12
words ''Ihou art my the
hntazan (1^8) 2 AH. it, yhere .Ihe
cou^i^ my
to father's house without
daughter of my uncle, if thou goest thy
a divorce. « /
consent," were held sufficient to constitute
,
Furzufid v. Jauii Bihee (1878)*-t Gal. 588. ,
(a)
(b-) In re Abdul All (1883) 7 Bom. 180.
• •
11 . - • .
 162 MAHOMEDAN LAW • •

Hed. 72, 73, 83 ; Baillie, 205, 206. to iddat, see s. 160,

[A.s
above, f
, r

The Hanafis divide tqlah mtotalal>iis-^unnat, that is, <a/aZ:

accordipg to the rules laid di»wa in the sunnat or traditions, and

talak-ul-bidaaty that is, heretical *or irregular tdlak. The talcfk-

us-sunnat is again sub-divided into ahsan, 'that is, most proper,

*
and hasan, that is, proJ)er. is npt essential to the validity of a
It
talak ahsan 'or talak-ul-bidaaty that it should hg pronounced

dnrinrg the period of tah?-

(Hed. 74). But when the talak-uU
hidaat pronounced during the period oi menstruation yit^xoXong^
i^

the period within which a talah may be revoked', sffa next section.

The latter '^portiofi of cl. (1) and cl.

(3) is taken almost
verbatim from Sir R. Kf Wilson's Digest of Arfglo-Muhammadan
Law.
Shiah Law. — The Shiah lawyers do not recogni^-e the vajidity
of talak-ul'hidaat (c). Talak under the Shiah law must be
pronounced in the presence of two competent Witnesses (Baillie,
Part II, 113). , e
t
192, Divorce by falak^when irrevocable.— (1)
The talak called ahsafi becomes complete and
irrevocable on the efe^piration of the period of id(}at, *^
«• c

(2) The talak called hasan becomes coiiiplete and

irrevocable after the third pronouncerhent, and it is

not suspended until completion of the iddat.^

^

(3) The talah-ul'bidaat becomes complete and

irrevocable immediately the triple repudktion is
made, if such repudiation was made during the tahr
of tte wife and the Eulband had no intercourse
with her during thkt period in other cases, it ;

. .becomes complete on th6 expiration of the period of

'
iddat,

Ujitil a talak becomes complete^ the husband has

the option to revoke it, whiqh may be done either

o(c) Bailli-e, Partll, 118,

«^
c
 » •
TALAK BY DELEGATED AUTHORITY 163
J

expressly, or in an )mplied manner such as resuming

sexual inl^ercourse^ ,
•

Hed. ^2, 73; BaiUife, .206, 20f, 285-289. In all Jhe three
forms of talak the wife is bound fco •observe the iddatj tliough in
tBe second case, and under certaan circumstances in the third case,
>

the may becolne irrevocable before completion of thp iddat.

divorje
As to iddat ^ see s. 160 above. « See also s. 602, els. 1,3, 5, and 6,

19*3. ^Talak by delegated authority .-^An a^jree-

ment entered into before marriage, by which it is
f)rovided that the wife should be at libert;5^»to divorce
herself from her husband under certain specified
conditions, is valid, if the conditions are 6f a reason-
able nature, afid are not opposed \o the policy of the
Mahomedan Law. When such an agreement is made,
the ^wife m^y, on the happening of the contingences,
repudiate herself in the exercise of the power, and a
divorce will tbei! take effect to the same extent as if
th^ tqlak had been pronounced by the husband {d),
* Illustration,
A enters into an agreement before Ms
fiiarriage with B, by which it is
provided that A should pay B. Es. 400 as her dower on demand, that he
should .not beat or ill-treat her, that he shoiftd allow B to be taken to
her father's ht>use four times a year, and that if he committed a breach of
any of the conditions, B should have the power of divorcing herself from
A. Some time after the marriage, B divorces herself from A, alleging
cruelty* and, non-payment of doweA A then sues B for ^restitution of
conjugal rights. Here the conditions are all of a reasonable nature, and
they are not opposed to the policy of the Mahoroed^n Law. The divorce
is therefore falid, and A is not entitled to restitution of conjugal rights :

Hamidoolla v. Faizunnissa (1882) 8 Gal. 327.

Note It is— submitted that the arTiSfiment in the above case
i» void

under s. 23 of the Indian Contract Act, as being opposed to public policy.

It can only be supported on the doctrine of tafweez^ which is an essential

part of the Mbhomecfen Law of Divorce! Under that law the husband ,

•may in person repudiate Igs wife, or he may delegate the power«of repu-
ditating her to a third party or even to herself (Baillie, 236) such a delegation
:

of power is cajled tafivcez^ "When ^ man

has said to his wife, 'Repudiate
thyself,' she can repudiate herself at the meeting, and he cannot divest
her of the power" (Baillie, 252)! "Wlien a man has» said tojliis vjife,

(jX) Hamiduolla v, Faizunnissa (1882) 8 Cal. 327.

•
 164 MAHOMEDAN LAW • «

'Choose thyself a month or a year,' she miy exercise the option (of
repudiation) at any time within the given p^iod" (Baillie, 240). The
agreement in the case cited above may be re^irded as a case of repudiation
by the wifp under an authority from the husbund^ yi other words.as a talak
by tafwfez. Such a divcw'ce is fiot«a divorce of the husband by the wife \

*
it operates in law as a taLaTi of the wiff by the husband. •

194. Talak under compulsionf— A talak pro-

nounced under compulsion is valid. Similarly a
talak by a hu§*band in a stale of
pro!?ounced
intoxication is valid, unless the thing which kitoxicated
him was administered to him without his knowdedgq,
or against fiis will.

Ped. 75, To Baitiie, 208, 209

;
Ibrahim v. Enayeiur (1869) ;

4 B. L. R. A. C. IS (as to talak under tompulsion). The

reason of the rule is that .ahusband acting under compulsion has
the choice of two evils, one, the threat held out to him, and the
other, divorce ;
and if he makes a clioice of divorc%, divorce will

take effect. As to the efficacy of divorce pronounced* in a state

of voluntary intoxication, it i^ stated in the Hedaya, that **^.he

suspension of reason being occasioned by an offence, the *re(f8on

of the speaker is supposed fStill to ^ remain, whence it is that his
sentence of divorce takes effect* in or^er to deter him from drinking
fermented liquors, whic^i are prohibited."
*
•
Shiah Law. — Under
• • .

the Shi ah law a talak proneunced under

compulsion,*^ or in a state of intoxication, is ntft valid (BaiUie,

Part II, 10^. « •
^ ^

195. Khula ^divorce. —

(1) A divorce by khula
is a div/Drce with the consent, and at the instance, of
the wife, in which she
gives ,or agrees to give a
consideration to the htfs^ind for the release from
the marriage tie In such a case the terms of the
bargain are matter of arrangement bejfw^een the
husband and the wife, and the ^ wife may, as the.
copsideration, release her dower and other rights, or
make any other agreemetjt for* the benefit of the
hqsband.
'
(2r) The divorce by kJmla is
complete and irrevoc-
 , , JUDICIAL DIVORCE 165

•
able from the
momejit when Jhe husband repudiates
tlfe wife. . /
(3) ,
The wife of the
non-payment *by, the
consideration for a khula dii^orce does not invgilidate
the divorce, but the husband may sue the wife to
recover the amount by• her under the
* payable
• •
agreement. ,

Moonshee Buzulrulttaheem v. Luteefut-oon-Nissa\\^^\) 8 M, I.

*
A. 379,*395*.. Hed. 112-116 ; Baillie, 303 et seq.

Khula means to lay down. "In law, it is the laykig uown by

a husband of his right and authority over his wife,"

A khula divorce is virtually a divorce purchased by the ^ife

from the husband for a price, and it is in this respect that khula

differs from mubarat: see next section.

196 . Mubarat divorce. —A divorce by mubarat

or mutiml rele^s^ operates as a complete discharge of
ali marital
rights on eithei* side. It is effected by
mTitftal consent, and it differs from khula in that no
consideration passes fropi the. wife to the husband.
But hke khulaj it
becpnjes complete
and irrevocable
*
from, the moment of repudiation. •
Hed. lie.; Baillie, 304.

, Wife^s Suit for Divorce,

197. When
wife may claim judicial*divorce. The —
wife cannot divorce herself from h^p husband except
in* the cases stated in sections 195 and 19*6. But
*
she may sue for divorce ^^^n the ground of. her
husband's impotency (s. f96),
or on the ground of
lanfi (imprecation).

• Suits by husbands for divorce are rare, as a husband majj divorce

his wife without judicial assistance, though the wife cannot.

198.
'

Impotencji of husband. No decree will be —

made in a suit for divt)rce ton the ground ^ of ^.the
husband's impotence, unFess it is proved <1), that
• • •
•
. •
.
166 MAHOMEDAN LAW • «

the impotency existed gt the time o£ the marriage,

at the
(2) that the wife had no knowledge of .it
time of the marriage, and (3) Aat the marriage has
* *
not been consummated^

If the above facts are .eStabUshed, the Court will

adjoufn the further heayng yf the^ ^uit for a.year in
order to ascertain whether l^e infirmity is inherent
* * ''
or supervenient and accidental* .

• • •
. . .

If the defect is,not removed within the* aforesaic^

period, the •Court will make a decree di^olving the

marriage on the^ application of the plaintiff. The
diw)rce becomes irrevocable, when the ^ecree is made.

Hed. 126-128; Baillie, 346-349. There is a difference of

opinion as to whether the year should be a lunar year or a solar
year, and in Baillie's Digest of Moohumraudan Law it is st*ated
that the year commence from the 'Hime^of.litigatidn." But
is to
in A. V. B, (1896) 21 Bom. 7T, the further hearing appears ^o
have been adjourned for a year from the date of the oj^der (%ee*p.

83 of the report). ,

In Vadake Vitit w, Odalel (1881) % Mad. 347, it was held

that the impotency was not proved. « • •

199. 'jLaan" or imprecation.— If a*

husband
charge his wife with adultery, the wife may cjaini
divorce hy n suit : but "laan^' does not ipso fd,cto ope-
rate as a divorce. ,

Hed. 1^ ; Baillie, 333-336. As to the second branch of the

proposition, see Jaun Beebee v. Beparee (1^65) 3 W. li. 93.

200. No other ground of divorce recognized. —A

wife is not entitled to claim divorce pn a^y other
""ground, not even if the husband f jils^ to perform the c

obligations
which the marriage contract imposes on
him for the benefit of the wi^e.

Ay^to ^he obligations arisi»g on Carriage see s. 166, above.

As to ^the « obligation of maintaining the wife, it is expressly

4
 1 •

^ ^
WIFE S COSTS IN DIVORCE PROCEEDINGS 167

stated in the Fatwa Ali/mgiri that "a man is not to be separated

frgm his wife for inabil/ty to maintain her" : Baillie, 443. As
to the obligation of cofiju^l fidelity on the part af the husband,
and pai/jnent of prqnPpt » dower to thg wife, and treating her
with kindness^ it is nowhere stated in the Hedaya o? Fatwa
Alamgiri that conjugal infidolitv, or non-payment of prompt
dower, or cruelty to >he wife, is a ground of divorce. As to how
far failure to perform the ^bove ol)ligafiODS is a valid defence
to a ^it for 'nestitutiorf of conjugal rights^ see s. \l*7»ante»

201. '.Wife's divorce.—H'he

costs in a suit for
rule of "English law which make^ the Ijusband in
divorce proceedings liable prima facie to the wife's
costs, except when she is possessed o€ sufficient
separate property, does not ^pply to divorce
proceedings between Mahomedans."
H was so laid down by the High Court of Bombay in A. v. B,
(1896) 21 Bom. 77. That was a suit by a Mahomedan wife
against her husbafticf for divorce on the ground of his impotency.
Tje {Inglish rule is founded upon the doctrine of the Common
Law accorfling which the husband becomes entitled upon
to

marriage to the whole of the w*ife'^ personal property and to the

income of her real proper/y. • Such being the case, it was thought
just lh»t ^the husband pay the wife's costs pending
should
the hearing to enable her to conduct her case against him.
* •
Under the Mahomedan Law, however, the husb^d does not

by marrii,ge acquire any inteft-est in the pronerty^ of the wife.

Hence it was held in the above case that the practice of the
English pivorce Court should not be appfied to proceedings for
ditojce between Mahomedans,
As to Parsisy provided bydfee Farsi Marriage and Divorce
it is

Act, 1865, s. 33, that in a suit for divgrce or judicial separation,

if the wife
ghall
not have an indepervdent income sufficient for her

support and the necessary expenses of the suit, the Court may ordef'^*
the husband to pay 'her monthly or weekly during the suit a sum
not exceedifig one-fifth of the husband's net income. ^*

The question whether the >ule

of^English
law as to wife's costs

applies to divorce proceedings bettveen Christiana in British "India

 168 MAHOMED AN LAW . ,

presents some difficulty. Those proceedVigs are now regulated by

the Indian Divorce Act IV of 1869, Settion 7 of the Act pro-,
vides that theOourts under that Act slloiiltl act and give relief on

principle^ and rules as nemrly as may be Conformable to. those on

which the Divorce C^ifrt in England acts and gives ^relief.
The
said* rule as to costs is one of |h^ rules on which the English

Divorcjp Court acts in nroceedyigs f^r divorcS. Hence i^has been

held by the High Court of Bombay that applies to
the rule

divorce proc^$^lings between Christian unUer {he hidian iJivorce

But then we have the Succes-
Act fe). provisions of the Inflian*
sion Act X of 1865,*which applies amongst others to Christians
Section 4 of fhat Act provides that " no person shs^l by marriage

acquire any dnteresi in the property of the person whom

he* or she marries."* Hence a Christian #husband, married
in British India after the date of the said Act, does not

acquire any interest in property of his wife.

the Thus far the
provisions of the Succession Act supersede the doctrine of the
Common Law on which the rule of the Englisl^ Divorce Gourt as to
the wife's costs is founded* Why should then a Christ^fin
husband in British India be required to pay his wife's* colts

pending hearingthe of a suit for divorce under the Indian

Divorce Act ? The High Oo^rt of Calcutta has held that a
Christian«husband is no^ under the circumstances, liable to pay
the wife's costs (/). As to this contention, however, Fan-an, J.,
said in the Bombay case above referred to : '* It does not appear
to me
that these provisions
(that is, of s. 4 of the Successioi^ Act)
affect the rul»as t« costs which ought to be
applied to Ihe case."
It is submitted that th^ decision of the Calcutta High Court is
the
correct^one, Divorce Act does not pro»7ide that
for s. 7 of the
the Courts under that Act should act on the rules on which
a^l
the English Divorce Court actip^itnd but that they
gives relief,
should act and give relief oq principles and rules as nearly as may
he conformable to those rules apd
principles.

Rights and Obligations of Parties •on Divorce,

202. The following rights and .obligatiojns arise

{(i) ^Mayhew v. J^ayJiew (1894) 19 Bom! 293.

(/) *Proby^,
« •
Pro% (1879) 5 Cal. J?57.

•
. .

• C
 , ,
EFFECT OF DIVORCE ] 69

on the dissolution ^ of a contract of marriage by

divorce, \yhatever ,^ay be the form of the divorce,
•

and whether it is^ effected .by a judicial' decree, or

*

without' it :— '

'(1) Tlie wife is

bouiid^ to
observe the iddat
during the period specified in s. 160,
but not if the
marriage was not consun>mated (g).
(2)* If tlie wife* observes the irfdai, tht husband
is boundmaintain the wife
to di:^ring
the whole
period of xWa?^ (s. 176). ,,•

(3) The wife cannot marry awotheri husband

until after com,pletion of her idda> (s. 160). And
if the husband has four wives
including the divorced
one, he cannot marry a fifth one until after completion
of the wife's iddat (h).
" deferred"
(4) l*he wi«fe* becomes entitled to the
do\fer^(s. 182). And if the "prompt" dower has not
been paid, it becomes
payable immediately on divorce.
Hut the marriage has ncTt b^eli consummated, the
if
wife is not entitled on /ii rorce to the whole qf the
unpaid doT^er, but^ only to half the aggregate amount
of the '' prompt" arid "deferred" dower (i).

(5) , In the event of t^e death of either party

before th(^ expiration of the period o:? ictdat, the
other is entitled to inherit to him or h«r,in the capacity
of wjife or husband, as the case may be, if the divorce
had not yet become dr revocable at the time of the
death of the deceased ; they1f*eason being that the
divorce not having become irrevocable, the husband
might have, revoked it, if deatlf had not supervened.
And it makes no cjiff^rence in such a case that* the
divorce was pronounced
by the husband while he was in
,— .

(g') Baillie, 351.

(Ji) Hed. 32; Baillie, 3 i. ,* • . /
Hed. 44, 45 F.aillie, 96, 97. •
(0 ;

•
 170 MAHOMEDAN LAW , ,

health, or that it
was^ pronounced in death-illness
imarz ul-maut), t. ^
• '

If the divorce js
pronoun^^e^ ^ in death-illness,
and t^ie husband dies fee&re completion of the wife's
iddat, the wife is entitled to inherit from liim, even
though the divorce hacT become i*revocahle prior to
his death, unless •the* divorce wa5 effected with her
consent ; ^e. reason of the rijle tJbat assort of
being,
inoiioate right of inheritance arises on death.illness,
and tjie husband cannot defeat that right while qn
death-be3»by rendering the divorce irreviDcable. But
the husband ha^ no right under similar circumstances
t(5 inherit from .the wife, if the \^ife dies before
completion of her iddat^ the reason being, that the
divorce proceeded from him, and not from the wife.

Neither the husband is entitled to inherit t^ the

wife, nor the wife to the husband, in the ev^nt of the
death of either of them after the expiration of «the
* *
period of '/(3f^a^
(/). • .,

(6) In the case of a -divorce completed by a triple

repudiation, it i* not lawful for the parties
to

re-marry unless the woman shall have been* married

to another person, and divorced J3y'him after
consummation of the marriage {k). ^

Apostasy,
203. Apo^asy from the Mahomedan religion
of either partj^ to a marriage operates as a complete
and immediate dissolutifim of the marriage.
The marriage is in swch a case dissolved without a divorce ;

•
Hedaya, 66. , ,

D. — Parenta«e..
.,

*204. Special rules.

—;The subject of ^ Parentage
•
i

/?) Heel. 99.J00, 103 ;

BaiU^, 277, €78.
(Ti^ fied. 108; Baillie, 290 ; AMtaroon-Mssa v. Shariutoolla (1867)
.7 W. R. 2B8.
•
• • •«
c
•
t
 > , .EFFECT OF APOSTASY ON MARRIAGE 171
;

in Mahomedan Law' derives its importance from the

*sp6tjial rul^s relating^to legitimacy and filiation by
acknowleds^ment. ,

An illegitimate child, we have seem, can inherit from its pother

alone and her relations (s. 56). jBut a legitimate child is entitled

to inherit also from Ms^father and his relations. And it has been
seen, in a. 167 ante^ that the is^yie even of an invalid marriage (as
distingtHshed f^jprn a void marriage) is also regarded* a« legitimate.
In Ahdul^ Raiak v. Aga Mahomed Jaffer (/), the question arose* as
to the legitimalSy of a son born toMahom«dan by a Byirmese
a
woman. The
iparriage of a Mahomedan with a Burinese woman
is only invalid, and not void (s. 161 ante), and j-he issije
of such a

marriage is legitimate (s, 167 ante). The letter point, howevesi*,

does not appear to have been specifically argued before their Lord-

ships of the Privy Council, and it seems to have been assumed

even ip the judgment of their Lordships that if the marriage
was invalid, the claimant could not be considered legitimate.
This view, it is sifbinitted, is in direct opposition to the rule
of IJalj^omedan law, according to which the issue of an invalid
laarriage are* equally legitimate with
lawful the issue of a
marriage. But the point not *been brought to the notice
liavijjg
of their Lordships, the judg/ieilt cannot in any sense be
tijken as
denying *th»t principle.,

Legitimacy. , •

205. Presumption as to legitimacy birth during

marriage,
—A
child born of a married* woman six
:

months after the date of the marriage* is presumed to

be the. legrbimate child of the husband, but not^ child
born within less than' six months after the marriage
-'^
{Baillie, 393). •

The the Indian Evidence Act, however, is

rule of
tjiat the birth of a child at any time during the continu-
ance of a marriage*is conclusive proof of its legitimacy,
unless it can be shown thajj the parties to the
marriage
had no access to each *oth^r at any time when the
^ ?
*
*
!!_

(0 (1893) 21 Gal. 666, L.B. 21 I.A. 56. .

•
 •
172 MAHOMEDAN LAW • •

I
child could have been ^gotten (m).
the rulf 6^ the Evidence Act
[It is sulornitted that
supers.edes the rule^of the xMah^nfie'dan Law.]
• • •
•.
•
Illustrations. •
• •
«
A
marries B on 1st January 19^5. B gives bi^th to a child on 1st March
1905. • A dies two days #fterithe«birth tf the cliild. Can the thild inherit
from A ? be entitled to inherit, ff it can be regarded as the legitimate
It will
child of A. tinder the Mahomedan Lftw, th*e chjld c*nnot b^regarded
as Hgitimate, it having been born within less than six n«ontlif after the

marriage.
Under th% Evidence Act, it is legitimate, it Slaving been born
during the dbjitinuance of the marriage. It is doubtful by which of th'ese
two rules the question of legitimacy is to be determined. [Muhammad
AllaMad v. ^uhaminad Ismail (1888) 10 All. 289, at p. 339.]

The Mahomedan Jaw requires as a condition of legitimacy that

conception should commence after marriage ;
an ante-nuptial
child, therefore, is not legitimate under that law {n). Under the
Evidence Act, however, it is enough to establish legitimacy thatthe
birth took place during the con tinance of Insirriage^ although the

conception may have commenced before marriage. In other wt)rdg,

conception, and not birth, is the starting point of •legitimacy ac-

cording to the rule of Mahomeda« law. If a child is born within

less than six months after marriage, ^t is regarded under that law
as illegitimate, on the ground tliat it must have in that,event been
conceived before marriage. Mr. Field, in his work, on the Law of
*'
Evidence, ^ys (p. 552) may be suppo»sd that the provi-
: It

sions of tl^is section [i.e., s. 112 of the Evidence Act] wfll super-
sede certain rather absurd rules of the Muhammadan Law by which
a child born six meifths after marriage, or within two years after
divorce *or the death of the husband, is presumed to be his legiti-
mate oflfspring." On the other hand, 'Sir R. K. Wilson, in his
Digest of Anglo-Muhammadsli Law. says (p. 184) that the rule
of the Evidence Act is really a rule of substantive marriage law
rather than of evidence, anrf as such has no 'appHcfition to Ma-
hometans so far as it conflicts with th# Mahomedan rule set out

above.
•
Assuming, however, the •rule of •the Evidence Act, to be •

one of substantive marriage law, ^e arf unable to see why it should

(m) Act I of 1872, s. 112.

(rCf \mrni
Asfirvfood Bowlah v. Byder Ilossein Julian (1866) 11 ai.I.A. 94.
• • • •
fl
•
 »
)

^ " LEGITIMACY 173

;

not be applied to Mahomedans. It iF> true that the Mahomedan

Jaw *of marriage, parent^age, legitimacy, inheritance, etc., is to be

applied to Mahomedan^, Jbiit that lawis to be applied except in so

fa?' as it Has been altered or aholished^by legislative enactntent (see

Chj^pter I, cfnte). It is
submitted, that the lule of the Evidence
Act, s. 112, alters the rule of Mahomedan Law out in the pre-
set

sent sectioli. Whether»the rul% of tlfe Bvidonce Act be a rule of

substantive law or of evidence, the fact stands that the fule finds its

place an enactrflent whicla applies to all classos'of person^ in

in

British India. » There is, therefore, no valid reason why it

should not be applied to Mahomedans. The reason ^of the rule
is quite immaterial in determining that question. If it is founded

on grounds of public policy, it cannot surely Ibe against public

policy to extend it to Mahomedans, regard being had especially to
the fact that *'
the Mahomedan Law raises a strong presumption
in favour of legitimacy."

206. ^Presumption as to
legitimacy: birth after
dissolution 'of — A
cjiild, born ot a married
nlarriage.
Avomaift within two years after divorce or the death
df the husbtod, is presumed to be the legitimate
child ot the husband ; but*not.a*child born more than
two years after the difesolution of , the marriage by
death 6r*dworce {Baillie^ 393-395).
But this rule, of Mahomedan Law, it is submitted,
must rx)w be taken to be superseded by the provisions
"*
of the Indian Evidence Act, s. 114.
In fact, it was held by the High Court
of CaJtutta prior to the
"
passitig»of the Evidence Act, that notwithstanding Maliomedan
Law, a Court of Justice* cannot pronounce a child to be #the

legitimate offspring of a particular mdividual when such a con-

clusion would be contrary to the course of nature and impos-
was held that *-
sible" (o). Efence it* in case that notwithstanding
Mahomedan Law, months after the divorce
a cltild*born nineteen

of its' mother by her {ormer husband was not the legitimate

offspring of that husband. •Tbaf case was decided in 1871, that is,
!—
J-*
Meer Aehad All (1S71) 16 W. R. 260.
*
*
»— ,-_

00 Ashruff All V. « .
•) • • « *
 *• *
174 MAHOMEDAN LAW
I

a year before the passiDg of ^e Act. The decision,

Evidenc|^ it^
seems, would be the same under s. 114 oljihat Act. cThat seclion
" the Court
provides that msty presume tjje, existence of &n^ fact
which if thinks likely to Tia\^ happened, regard being had to the
to this
cojiimon course of natural events^' etc. Having regard
rule, a court would be justifieit in persumin^ that a child born of
a woman nineteen moiiths«aftBr he^ divorce by her husWhnd is not
the legitimate ahild of the husband.
• • •
,
•
^
' • * •
Acknowledgment of paternity.
207.•.Legitimation by acknowledgment— Legi-
timacy not a condition precedent to the right of
is

iiiheritance from the mother (s. 56); but it is a

necessary condition of the right of inheritance from

the father, and it depends upon the existence of a
lawful marriage between the parents of. the claimant
at the time of his conception or birth. When legiti-
mac}^ cannot be established by diredt proof -o^ such a
"
^'
marriage, acknowledgment is recognised b,y ,*the
Mahomedan Law as a means whereby the marriage^
and legitimate desceift paay be established as a matter
of
suljstantive law for purposi^s of inheritance (p).
Acknowledgment has the effect of legitimation o^ly in those
cases where^either the fact of the marriage or its exact time with
reference to the legitimacy of the child's birth is a m§tter of
*
uncertainty ^q), •

208. AcknoA'ledgment may be or

implied.
— express
The acknowledgment by a Mahoined^i* of
angther as his legitimate child i5iay be made either
by express declaration oi** it may be presumed from
treatment tantamount to acknowledgment of legiti-
macy. But mere continued cohat)itatibn with •a
woman does not suffice to raise stich a legal presump-
tion of a
marriage with h^r as jto legitimatize* the
— — ——— •
C — .

/?;) ^luhammad Allahdad M: HJuhdnnnad Ismail (1888) 10 All. 289,

t - • • •
 ^ ^ ^
ACKNOWLEDGMENT OF PATERNITY 175

offspring ;
the cohabiiation miist be a cohabitation as
man and "
zvife (as d^sJtyiguished from a ipere casual
concubinage ") the ti*eatment must be such
(/•),,ai]a
as to amount to acknowledgrr.ent of legitimacy ('^.).
*
Illustrutions.
(t

(a) A chyd is born to ^ Mahomf^an of, a \vomaij who had resided *in his
female apartments for a period of 7 years 'prior to the birth of the child. It
th€^ cohabitation was a continual one (anc> not merely
is prove^hat
*'
casual"), and that it'was between a man and woman cohabiting togeiher
as man ana W2'/(?s,and having that
repute iefore the conception commenced.
It Ss also proved that the child was born under his roof and continued to
be maintained in iis house without any steps being taken on nis part or of
any one else to repudiate its title to legitimacy as Jiis offrpring. These
facts are sufficient to raise the presumption of
mayiage and acknowledg-
ment : Khajah Hidayit v, Eai Jan (.1844) 3 M. I. A. 295.
—
Note, In Mahomed Banker v. Shurfoon Nissa (1860) 8 M. I. A. 136,
there was abundant evidence of continued cohabitation between the father
and the mother of the claimant lut as there was no proof in that
; case
either of mar-iage or of ^knowledgment, the claimant was adjudged to be

illegitimate. »

(by A* child is a born to a Mahomedan of a woman who had been in his

service for some*time before the birth of the child. It is alleged that the
man entered into a mutaa marriage
(t) with the woman, but the date of
the marriage is not found. Thf/evfdence shows that pregnancy
coijmenced
before thev woman had the acknowledged status of *a vmtaa wife. It does
not appear whefi the intercourse began which led to the birth, nor what
the nature of it was, whether casual or of a more permanent character. It
isproved that there was no express acknowledgment, and it appears from
the evidence tl\at the treatment of the*child was equivoci|l, hejaeing some-
times treated as a son and at others not. These facts are not sufficient to

raise a presumption of acknowledgment :

Ashru/ooii Dowlah v. Hyder
•
Hossepi (1866;^ 11 M. I A. 94.

(r) Mahomed Banker v, Shuj-foon N^sa (1860)8 M. I. A. 136, 159

Khajah Uidayut v. Bai Jan Khanum (1844j

(s) 3 M. I. A. 295 ;

Ashrufood Dowlah v. Hyder Hossein A'^awk(1866) 11 M. A. 94 Maham- I. ;

matt Azviat v. talli Begum (1881) 8 Cal. 422, L. R. 9 I. A. 8 Sadakat ;

hossein v. Mahomed YuJuf (^883) 10 Cal. 663, L. R. 11, I. A. 31 ^Abdul ;

Mazak^y, Aga Mahomed Jaffer (1893) 21 Cal. 666, L. R. 21, 1. A. 56; Masil-
un-nissa v. Pathani (1904) ^6 All. 29.S.

(0 A mutaa marriage is a sort ol tem^jorary marriagt;, recognised by

the Akhbari Shiahs. Such a marriage terminates on the expiratif^n of the

fixed period, and it may be dissolved earlier by mutual consent.

176 MAHOMEDAN LAW

209. Effect of acknowledgtltent.— The acknow-

'

of a child by a Maji6i?aedan ar. his sbn

ledgment
affords conclusive 'presumption that the child
a
acknowledged is the legitimate son of the acknow-
ledger, and gives
such child the status b£ a son
capable o£ inheriting as a legitimate
son (w).
The acknowledgment by a man
of the paternity oi a child as his
to the childf as will as to the mooter the
legitimate ofif^pivug gives
right of inheritance to him, the law presuming
from fthec acknow-

ledgenfent pf legitiiiiacy of the child a lawful

union between ip,e

parents :Mahatala Bibee v. Huleemoozooman (18^1) 10 C. L. R.

298, See aho Wise Sunduloonissa (1867) 11 M. I. A. 177, at
v.

p. 193. The acknowledged

child may be either^ son or a daughter :

Oomda Beebee v. Syud Shah Jonab (1866) 5 W. R. 132.

210, Conditions of a valid acknowledgment. — In
order that an acknowledgment of paternity may'have
the effect mentioned in s. 209, it is cn^cess^^ry that the
following conditions should concur :

c
*>

c
,

(1) the acknowledger must be old enough to be.

the father of the ackrfowledgee ;

(2)< the ackncwledgee mult not be known to be

the child ofsome other person "
;

(3) the acknowledgee must confirm the acknow-

ledgment^ if he is old enough to understaKd the
^

nature of the transaction but such confirmation is

;

not necessary when the acknowledgee is an infant ;

(4) the doctrine of acknowledgment being faailded

upon the presumed legitimacy of the acknowledgee
which the acknowledgment has the effect of confirm-
ing (?;), it follows that the acknowledgee must not be
(u) Mahammad Azmat v. Lalli Begum. (1£/S1).8 Gal. 422, L. R. 9 I. A.
S'JSadakat Hossein v. Mahomed Yusuf (1883) 10 Gal. 663 L. R. 11 I. A. 31.
(f) Cp. Ashrufood Bowlah v. Byder Ho^sem Khan (1866) 11 M.I.A.
94, where their Lordships of the Prity Council, after observing that the
issue as to acknowledgment was pro^^erly framed, said (p. 104) " It uses
:

th'o word '

acknowledgment' in^ sense, under the Mahomedan law,
itfi legal
of aqknovledgment of antecedent right estahliahed
by the achnowledgment
on the acknowledged."
 ACKNOWLEDGEMENT 177

an offspring of adultery, incest, or fornication. Hence

a Qhild beo^otten up^^n a who was at the time womin
the wife of another Vnan (i^), or the sister of the
acknowiedger's wife (x), or a ^jrostitute (?/),,
cannot
be legitimated by any acknoivledgyient. »

Hed. 439 ; Baillie, 405.

^ ft • , ,
»

FoiiM Condition. — In Saaakat Hossein v. J^ahomed Yusuf

(1883) 10 Cal.''663', L.'r. 11Loi-^ships the
I. A. 31, their of

Privy douncil* left it an open question as to whether the offspring

of an adulterous intercourse can be legitimated by p,ny Acknow-

ledgment. Referring to this case, Mahmood, J., observed in

Muharmnad AUahdad v. Muhammad Isn9xil (1088) 10 All.

289, at p. 337: There is no warrant ?n the principles of the

"o'^

Muhammadan law to justify the view that a child proved to be

the offspring of fornication, adultery, or incest, could be made
legitimate by any acknowledgment by the father. The rule is
limited to fejses ol^wacertainty of legitimate descent, and proceeds

entirely upon an assumption of legitiinacy and the establishment

^f such legi^timacy by the force of such acknowledgment." This

dictum has been followed by tl\e Higji Courts of Allahabad and
Calcutta in the cases referred Jbo in 'Condition (4), above.
"^
> :»

211/ Acknowledgment legitimacy is irrevo- of

cable. — Once ^an acknowledgment of paternity is
madcj, it cannot be revoked either by the acknow-
ledger or 'persons claiming through him {z^,

212* Adoption not recognized*.-^ The Mahome-

,,

dail law does not recognize Adoption as a mode of

'

filiation (a). ,

<m;) Llaqa^ All y.'Karim-un-Mssa (1^93) 15 All. 396.

Aizunnissa v. Earku-un-Nissa (1895) 23 Gal. 130. *
(a?)

iy^ Dhan BiU Lalon Bibi (1900) 27 Gal. 801.

v.

(z) AsUrvfood Bowloli v. IlydZr Hossein (1866) 11 M.I.A. 94 ;

> iVw-
hammad AUahdad v. Muh a rnmad^Ismail (1888) 10 All. 289, 317.
{a) Muhammad AUahdad v. Muhayimad Ismait (188i^) 10 KU. 289^^40.
-
12 .
'
.

*
 178 I «

OHAPJER XII.
^ Iff
^
c

r
GrUARDIANSH/?.'
21S.
c

Age of majority. Fof* ffie purposes o£ this —

"
Chapter, minor" means a person who shall not haye
completed the age of eigkteen years.
See 'Indian Majority Aet fX of x875, s. 3, and the (Sruardians

and Wards Act-YIII of 1890, s. 4^ cl. (1), .^ ^

214. Power
the Court of to make cK'deif as to
guardianship.
— When the Court is satisfied that it is

for the welfare of a minor that an ordeiP should be

made ^^ppohiting a guardian of his person or
fl ) «^

property, or both(^ or (2) declaring ^a person to be

such guardian, the Court may make an order
accordingly,
*
«>

Guardian and Wards Act, s. 7.

Matters to b^ considered %y the Court in

215.
appointing guardian. (I)
—
In appointing or declar-
ing the guardian of a minor, the Court shd'll, subject
to the provisions of ihm section, be guided by what,

conshtvitly with th^ law to wfiich the ininor is subject^

appears in the circumstances to be /or the -welfare of
the minor.^
<i

In considering wha^t will be for the welfcire of

(2)
the minor, ttie Court shall have regard to the age
and sex of the * minor, the character and capa-
city of the proposed guardian and his nearness of
kin .to the minor, the; \yishes, if' any, of a deceased
parent, and any existing^or previous relations of the
proposed guardian with the minor or his properly.
(3)» If the minor is old enoi:[gh^ to form an in-t
telligent preference, the Court may consider that
'
preference. V
Quar4ians ajgd Wards Ao6, s. 17. The italicized words show
^that i[" a minor of whose person or property or both a guardian is
*
«. • «. t
^
*^
t t *-

^ c
C
 GUARDIANS OF PERSON 179

to be appointed or decla:ied by the Court is a Mahomedan, the

Codrt is to have regard "ji the rules of Mahomedan Law, subject
however, to the provisions of-the section. See notes id s. 219 below,
as to the t?xact significance'of the words last italicized. -We now
proceed to enumerate the principles ofMahomedan Law relating to
(1) the guardianship of the person of a minor, and (2) the guar-
dianship of his property, j* > li ,

«*-, Guardians ^of the Person of a Mijior,

216w
Right mother to custody inmnt
of of
children. — The mother entitled td the custody of is
of her maleo child until he has completed 'the age of
seven years, and of her feraale chiM until she has
attained puberty, ^

Hed. 138 ; Baillie, 431. It has been held by the High Court of
Calcutta that the mother is entitled to the custody of her daughter
who has not attained puberty in preference even to the husband of
the daughters Nun liadir v. Zuleikha Bibi
(1885) 11 Cal. 649 ;

Kovhan v. King-Emperor (1904) 32 dal. 444.

^^
Skiah Laiv. — Under the Shiah Law, the mother is entitled to
the custody of her male child until he is weaned, and of her female
child until she has completed tde age of
sevjn years BaiJJie, Part :

'^
II, 95.' .

217.
kight of female relatives in default of
mother, — Failing mother, .the right of custody of a
boy under the age of seven years, and 6i a^ girl that
has not attained puberty, devolvesmpon the follow -
ingof^malfe relatives in the order enumerated-below :

(I) mother's mother, how high so ever;

( ) father's father, how high so ever ;

> "full sister

(3) ;

(4) uterint^ sifter ;

'(5) [consanguine sisterl ;

(6) full sister's'

daughter ;

(7) uterine sister's daughter ; ^

 180 MAHOMEDAN LAW •• •

sister's
(8) [consanguine ^ughter] ;

(9) snaternal aunts, in lij^#rder as sisters; and

(10) paternal aunts, also W^e order a* sisters.

•
m
. • •
138 Baillie, 432. Neither the consanguine sister nor ^ler
igea. ;

or Fatwa
daughter is expressly raentioned either in the Hedaya
the omission se^m* to be^accideatal, for patemial aunts
Alum^iri ;

are expressly. mentioned. . ^.^

218. Right of male paternal relatives.—.In de-

fault •of all the female relatives mentioned above, tbe
right of cRstody passes to (1) the father (2) father's
father how higb so ever, (3) full brother, (4) consan-
guine brother, (5) full brother's son, ^6) consanguine
brother's son, (7) full paternal uncle, (8) consanguine
paternal uncle, and other paternal male relatives in
the order enumerated in the Table of Residi*aries
(s. 41). . , ^.
No
male is entitled to the custody of a female cljild
unless he stands within the prohibited ^degrees g£
• •
relationship to her. ,
*
Hed.»138, 139 433. ^
; Baillie,

219, custody, how lost.-r-Neither a

Right of
mother nOr any other female relative mentioned in s.
217 is entitled to the custody of an infant, if she
marries a person not related to the infant within
the prohibited degrees ; but the right is restored on
the dissolution of the marriage by death or diyoi'ce.
Nor is she entitled to r^ain custody of an infant, if
she removes the infant tft a distant
place so as to
render it impracticable the father to look after
/or
'
' • c c
the child.
Hed. 138, 139 ; Bailiie, 432, 435. ^he reason of the first'
br^jich of the rule is that the ijifant ntay not be treated* with

kindness, if the woman marries a person'i^/io is not a near relative

of%he infant. •InMoocha y. ^lahi Bux (1885) 11 Cal, 574,
• the
^esfion arose as to whether the grandmother of a minor
• •
 GUARDIANS OF PERSON 181

female, or her paternal ^incle, was entitled to the custody of the

minor. The minor not attained puberty, and she was
?^^
married to a boy twelve o? fourteen years of age. ^ The mother of
the miti\)r had married a*person not rekted to the mi:ior within
the prohibited degrees. No claim was mfide on beha?f of the
'^
husband. It was held that the grandmother was entit?ed to
the custody in
preference to:^he p3,terpal i-^ncle (see s. 217.).
The
Court bound by the provisions of Mahomedan Law,
felt itself

thoug"!! it wa^ clearly of o{)lnion that under the ci^umstances the

uncle ?)f the.girl was a far preferable guardian to the grandmother.
>This case was decided in 1885, that is, five ^ears be^re (?he pass-
ing of the GiPardians and Wards Act. Under that Act, however,
the primary consideration for the Court 12 the welfare of the
minor (s. 215 an V), and the provisions of ^ the law to which the
minor is subject are subordinated to that consideration.

A prostitute is not a and proper person to be appointed

fit

guardian of an infant : Abasi v. Dunne (1878) 1 All. 598. This,

however, is not a ^{)ecial rule of Mahomedan Law, but a part of

t^e general luw of British India. See Guardians aud Wards

lib s^'> Act, s. 17^ cl. 2, set out in s. 215 above.

seems that apostasy is not a ground of disqualification Hed.

It :

139 Baillie, 431. See 2lso Act XXI of 1850, and, the notes
;

at p. IM) xnte, >

220. Ciistody of boy over seven aad of adult

female. — The father custody of a is e^ititled to the
boy when he has completed the age of seven years,
and of a girl when she has attained puberty. Failing
fatljer, the right of custody devolves upon the pater-
nal relatives mentioned in s. 218.
>

Hed. 139; Baillie, 434 ;

Idu v. Amiran (1886) 8 All. 322.
The father is entitled to the custody of a boy under seven years

> of age and of a girl that has not attained puberty, only if^ there be
no mother or any of the female relatives mentioned in s. 217 and
competent to act. See s. 218* /
221. Custody of illegitimate children. Jhe^icus-
—
ody of illegitimate children belongs to the yioth^r

)
) *
;
9
 182 MAHOMEDAN LAW «• •

and her relations. I

•
Macnaghten,^98. j/^»
•
c^Guardians ofe the property
• of a minor,
» • •

Quardiaifs of property. - The followmg per'

222.
sons are entitled to be guardians of the property of a
minor
* *
:
— *
•
*

* •
• .
/I) t^a'father;

(2j
the excj^tor appointed by the father's will ;

(3) fhe father's father ; ^

tke executor appointed

(4) by the will of the
father's father ; •
^

If there be none of these, the Court has the power

teappoint a guardian, but it should select by preference
a male agnate of the deceased father.

Macnaghten, 304. For a list of male agnates, see the Tabl^

of Residuaries, s. 41. • •

The only relations by blood«that are entitled as such to the

guardianship of the property of a minor Jure (1) the father, and (2)
the father^s father. N^ other relative can claim to be -such

guardian as of rights not even the mother {b). Hence^ a mother

has no power t# bind the estate of her minor childr^^n by mortgage,
sale or otherwise (c), unless the transaction be manifestly fo» the

benefit of the minor

(jot).
Nor is a mortgage executed, by a
mother, brother, and sislfer of a minor, binding on the minor, none
of them beifig a guardian of the minor's property {e). 'Similarly
it has been held that a mortgage executed hj^ the uncle of a minor
is not binding on the minor (/). »,
'

•_
•

Pathummahi v. Vittil Viifniachahi (1902) 26,Mad. 7?4

(h) Moyna^ ;

BiU Banku Behari (1902) 29 Cal. 473 Baba v. Shivappa (1895) 20

V. ;

Bom. 199 Sita Bam v. Amir Megam (1886) 8 AlK 32t, 338.
]

(r) ^Ib.
Majidan v. Bam Narain (1903) 26,A11.22. «
*
{(l)
(6') BhutnathN, Ahmed Hosein (\%^q)\1 Cal. 417. A brother is not a
guardian of her sister's property BuTtshatfb v. Maldai (1869) 3 B.L.R.A.C.
:

423, *$ee also Husel^t Be^m v. Zia-ul-Nisa Begam (1882) 6 Bom. 467.

g) Nizam^d-Dim v. Anandi Pramd (1896) 18 All. 373.

• •
e « «
t
I «
 GUARDIANS OF PROPERTY 183

As to the powers of a husband to deal with the property of his

rrinor wife, see Hayathif, Syahsa Meya (1903) 27 Mad. 10.

223. Powers.of, guardian to sell or mortgage.—

A guardian of the propei;tyi.of a jninor may sell the
movable property of the niinor, but he cannot sell any
part of his imxnovable property, unless the sale
is
absolutely necfcfesary,\or is /or the benefit of the
miiAxr. ^ .
,
^
Bailiie, U76 ; Macnaghten, 64, 305, 306, Hurhai v. Hiraji 20
;

Bom. 116, 121. See also Kali Dutt v. AhaUl AH ^888) 16 Oal-
627.

If a personappointed or declared a guardian ot' the property

is

of a Mahomedan .ninor under the Guardians and Wards Act, '* he

shall not, without the previous permission of the Court
(a) mortgage
or charge, or transfer by exchange, or
sale, gift, otherwise, any
part of the immovable property of his ward, or (b), lease any
part of that propeiiy for a term exceeding five years, or for any
te/m extending more than one year beyond the date on which the
"
^ward will cp^arse to be a minor (s. 29). And it is provided by s.
30 of the Act that a disposal oi immovable property by a guardian
in contravention of the is voidable at the in-
fo»*^g9ing provisions
stanc3 oj any other person affected thereby.

*
Guardians and Wards Act, ^
t)

224. the Guardians and Wards

Applicability o^,

Act. —
All applications for the appoihtm'ent or de-
claration of a guardian of a person 'or property or both
of a Mahomedan minor must now be made u!nder the
Guardians and Wards Act, 1890, and the duties,
rights, and liabilities of guardians appointed or de-
clared under that Act, are governed by the provi-
'

oions of tJhat Act. -»

* »

' '
^
J •
i
 184 • •

CHAPTER XIJI.
Maintenance of Kj^^iVTiVES. •

225 J Maintenan(ie of childreft.-Mi father i^ bound

to maintain his dai^ghtefs wntil they are marped, but
he m not obhged to mahitaiM his adult sons unless
they ,are disabled by infirn^ty or» disease. ^ 1£ the
father is poor, and*incapable ©f earning anything by
his own labour, the mother, if she ^as, gat pr(fperty
of Iter own, is bound to maintain her ^ftnnmrried
daugh4:ers^ and stPch of her adult sons as are disabled^
Jed. 148 ; Baiilie, 455-458. As to maintenance of wife, see
••
153.»
pp.^152,
226. Maintenance of parents. — CSildren in easy
circumstances are bound to maintain their own parents,
although they may be able to earn SQmething,for
themselves.
This section a reproduciio* of the first marginal note on p. 4^1
is «-

of Baillie's Digest. See also Hedaya, p. 148. • •

.

227. Maintenance -of other relations. — Persons

in easy circumstances may be«cc^ipelled to maintain
their poor relation^ within the prohibited c^egretis in
proportion to the shares which they would .inherit on
the death ©f th*e relative to be maintained by them.
*
*
46S. • •
Baillie,

228. Statutpi»y obligation of father to maintain

his children. —
If the father neolects or infuses.to
mamtam his legitimate or illegitimate children who
are unable to maintain tSe^selves, be com*= he may
pelled, under the provisions of the Code of Criminal
.Procedure, to make a m(tnthly alio wanc^ not exceeding
*
fifty i^pees for their maintenanceji •

9fee CrimiDal Procedure

Code,, s. 48^ If the children* are

illegitimate, the refusal of the mother t9 surrender them to the

father no ground for rdfn^ing maintenance
is :
Kariyadan v.

/ira2/a^Be^a7z(1885)19 Mad. 461.

• ••
• •
•
t
%
 185

The refjreSc^a throughout are to pages.

'*^ •
AbuHanifa,
founder of the Hanafi sect of Sumsis, IS'' i

disciples of, 17 o,

Acknowledged kinsmkn, > , , ,

'

definition of, 79 »

AcknoWledgnient,,
' ^
legiiimation by, 174
conditions of, 176 ^ '
, ,
'
may be expjess or implied, 174.
eflfect of, 176 > ,
irrevocability of, 177 ^

Administrator,
vesting of estate in, 20
suit against, ,26

may sue without letters, except for recovery of debt, 33

» *
Adoption, *
'
not recognized in Mahomedan Law, 177
*
Agreement,
empowering wife to divorce herseJf irom husband, 14T, 163

' ^
Bequest, , ^
to lieijSjfll ,

for pious-yurposeB, 94 a
consent of heii-fe, when necessary, 93
to tinhorn persons, 94 *
3 :>

to a child in the womb, 94

revocation of, 95 •
'
^see Legacy and Will
>

Brother, "
^

is a residuary, see tab. of res., s. 41

'

(ii) consvtnguine-^
isa residuary,^ se^ tab. of res., s. 41

(jii) vierine —
is a sharer, see tab. pf sh^' s. 39
^ *
Brother's daughter, ^ *

>.
,

is a distant kinswoman of the third class, 66, 73 >

13 »
*
 186 INDEX o f*

Brother's daughter's children, ,

are distant kindred of the third class, 66,J3

*
Brother's son h.' 1. s. <-

'
• ^^
(I) full— ^

*i8 a residuary,, see tab. of res., s. 41

(li) comangmne —
f is a residuary, ^^e tai)}. q'i res., ,'i. 41
'

(iii) uterine—
is a di^Vant kinsman of the third class', 66,, 73

Consanguine brother,
is a i-esidaary, see lab. of res., s. 41

Consanquine brother's daughter,

,
is a distant kinawdraan, 66, 73
^'
Consanquine brother's son,
is a residuary, see tab. of res., s. 41

Contingent interest,
not recognized in Mahomedan Law, 37
Creditor,
suit by, against legal representation, 26
suit by, against heirs, 27

' *
Daughter, ^

as a sharer, see tab. of sh., s. 39 »

^
as a residuary, see tab. of res., h. 41
c *

Daughter's children, e
are distanj kindred of the first class, 66, 67 «

t
Deathillness; ^

what is, 97
'
gifts made in, 97 ^

^'
acknowledgment of debt in, 98

Debts, ^
^
*i-F-
payment of, 19 (-

liability of heirs for, 23''

alienation of estate before {payment of, 23, 24^
^^

alienation of estate for payment of, 25 ^

recovery of, when due to a

deceased Mahomedan, 32-34
^eath-bed acknowledgment of, 98 [

'^
Distant kindred,
^vdefinition of^43 <j

^ fovir classes of, 66

•
I
 ^
1^ INDEX ,
187

Distant kindred,— (^fw^.)

list of, 66 «»'

of the irst class, rdleb succession among, 67^ >

of tlje second claus,^ ruJes of succession among, 72

of the third class, rules of succession among, 73
of the tburth class, rules of si^ccession among, 75 ^

»
Divorce, »
,

(l) talaky or divorce by husljand

—
t, pubei^y of husband ^ecessary to validity of/ 1^1
^ valyl, though pronounced under compulsion or in a si^te of
Tjoluntary intoxication, 164
'
must be addressed to wife, 161 ^
'

no par%icular words necessary, 161

' '
three varieties of, 161
when irrevocable, 162
or delegated authority, 163
by tafweez
(m) khula^ or divorce by mutual consent consideration
— from wife,
- a necessary element of, 164

(iii) muharat, or divorce by mutual consent — distinguished from

khula. 165
.

9 impotency of husband, a ground of, 165

* **
laan, a ground of, 166
wifu^'s costs not allowed in a suit for, 167 j

apostasy, a ground of, 170

eflfect of, 168, 169, ^70"

Dower, > «

definition, of, 154

may be fixed before, during or after marriage, 155
maximum and minimum of, 1^5
" 155
proper,'*'
*'
distinction between prompt" and
**
deferi^ed," 156
**
whole presumed to be prompt," when, 156
'>

wife's rights on non-payment of " prompt," 157

^ nature of widow's claim for, 157, 158, 159

effect of divorce on claim for, 169 ,,

Escheat, ^ ^
^

to the crown, 79 ,

Estate,
rf^plication of, of a deceased ^lahomedan, 19 •

vesting of, in executor and administrator, 20

^ ^ * -^
devolution of, upon heirs, 21 j .

*
distribution of, 22 » *

)
 188 INDEX 0* •

Executor, %

positioD under pure MahomedaD La\^<20

of,
•
*
vesting of eitate in, 20 ^
•
••
suit
aj^ainet,
26 ^
• ,

may^ue without probate, e«cept when the suit is for the recovery
• •
. of a debt, 33 •
. need not be a Moslem, 96 *

pov^ers of, 96 • • • • « •

False Grandfather, •
, ^ ^
•
c de^nition of, 44 -

is a distant kinsman of the second class, 66, 72 •

False Grandxiy^ther,
definition of, 44
•

IB a distanf kinswotian of the second class, 66, 72.

*
Father, #
as sharer, see tab. of sh., a. 39
as residuary, see tab. of res., s. 41 ^
* *
may inherit both as sharer and residuary, 54
• « *
Funeral expenses, «
payment of, first charge upoif estate, 19 •
* •
Gift, . *
dennition of, 100 • •
*
capacity for making, 1 00 •
*
need n^t be in writingj 100
seisin, a necessary condition of, 105 • • •

«. a subject of, 101 » •

of equity of redemption, 102 •
'
of future • •
Rfopetty. 103
of property held
adversely to donor, 103
of property in possession of
donee, 107
of mushfia, 107, 108, 109 •

to unborn persons. 110

«
to minors, 110 *
^
by a father to his minor child, 110
by husband to wife. 111 •
• • •
infut^ro, 111
with conditions, 111 •
r^olution of, 113 •
• • •
made in *
death-illness, 97, 98 •
* *
• •
Granftfather, ,
• UaeymdB True Grandfather

• • • •
 • » INDEX 189
•
>
Grandfather,— (cow^<^.) ^

False Grandfather •
, , false, vide
*
Grandmotiier, » ,
»

tru«), vide True Q'^fadtnother ^

•
false, vide False Grandmother > »

*
•
Guardian, ,
'
power of court in« appointing, 178 ,

matters to be considered b^ court in appointing, 178 ^

*
*of,person, 179, 18CV 181 , ^ •
of^rop^rty, 1^2, 183
•

applicability of Guardians and Wards Act, ^183

*
»
•
Hiba-ba-sharlj-ul-ewaz,
definition of, 115
• 9
•
Hiba-bil-ewaz. s
definition of, 114

Homicide,
^as a bar to sjuccession, 41

Husband,
is a 8ha»?er — sftc l?ab. of sh., s. 39

I(vdat«
^ »
period cf, 147
''^^'^
marriage before completion W, 160; 169
maintenance of wife during, 153, 169
rights of inheritance how affected by deith before cood^letiou of
^6D, 170 •>

"~^ Illegitimate*cliil^,
">
» -> ^
inherits from mother only and her relations, 80

Increase.
' * *
doctrine of, 49 »

Inbeiitancfe, «
devolution of, 21 ^
*
'<-:> renunciation 39 ^
of, 38,

rights of, how affected by death before

completion of iddat, 169
'
^
, Joint family,
^

rules of Hindu law otj not applicable to Mahomedans, 41

Justice, equity, and good conscience, /
meaning of, 8
'

Koran, .
» > , ^
interpretation of, 15 3
,
 190 INDEX ,. •
,

Legacy, •

subject of, 95
^•.
abatement off 94 ,
• *•
lapse (jjf, 94 , •
see Bequest and Wil • • • •

• •
Legatee, ,
79 •
universal, ^
•
Legitimacy, .
173 • • • c
presumptionvis to, 171, 172, ^
r
*
Letters of Administration, .

when'neceiisary, 32*33
*
Mahomedan,
who 4 *' *
is,
c

Mahomedanism, {
conversion to, 4, 5, 6

Mahomedan Law,
intorduction of, into British India, 1-11
sources of, 15 c *^

interpretation of, 15-18 o

no right of representation in, 36
reversionary or contingent interest not recognized in, Sr
vested remainders not recog\ii«ed in, 38
«

Maintenance, ^
^ *
of wife, 152, 153 , . •
of children, 184 •
of parents, K4 «
^^^ «#
of other relations, 184 *
c
c * •

Marriage,
is a civil contract, 146
*
who ni^v*contract, 146 • •

(i) valid, requisites of— «

1.
puberty and sound mi^d. 146 ^^
2. consent of father <9r grandfather, when puberty not at-
tained, 151 »
• * * *
3. proposal and acceptance, 146
4. *
presence of witnesses, 147
• 5. the woman must not be wife of another man at time ^f
• *
marriage, 147 V
6. the man must not be ^husbasd of four wives at time of
^ •
n!krriage, 147 •
,
t X. fee woman must have completed her iddat, 147
*^
* • • •
•
c

%
 o ^ INDEX 191

woraai^muBt not beSn idolatress,

o 8. the 148
9. she must he a ^ahomedaOf 148 ^
10. the partii)*
rapst
not be related to each other within pro-
hibited degrees of consdhguinity, s^flBnity, "or foster-
• •
•
age, nS, 149 ,
• •
effect of, 149 .
(w) invalid^ whatJ'is
—
1. when contracted ^thout witnesses, 147
*
«, 2. If hen the ^ife i| an idolatress, 148
3. ^ when 'the husband is a non-Moslem, 148
•
^
effect of, 149
•
(tit) illegfd or void •
1. w^en contracted before completion of iddat, 147
2. when prohibited by reason of cctisanguiliity, affioitv, or

fosterage, 148, 149 •

3. with a wife's sister, during wife's lifetime, 149
effect of, 150
i-.j»/
^!(#) ofmiriQrs
may be contracted by guardian, 150
^ti-^rdiaas fBr marriage, 150
1^ I valid if brought about by father or grandfather, 151
^'
^ voidable if brought about by any other guardian, 151, 152
•
(y) of lunatics • ^
subject to same rulei^as inatriage of minors, 152
^ #
Miss^g persons, «
rule »f iuccessioft relating to, 80

Mosque, • .
•

*
vxikf ol musWaa for, 119.
pflbiic light of worship in, 180
^
.

Mother,
is a sharer, see tab. of *
sh., s. 39
Musliaa) ^^
'

what is, 107 * ,

^^ *
gift of, 107 ^
'
^
•
wakf of, 119
doctrine of, noi recognized in Ma3ra8 Presidency^ 2, 109
Mutawali, •
•
who may be, 127 ^

powers to mortgiige or
of,
*
v^, 138
to grant leases, 129 ,
to increase allowance of servante, 129 • »>
, .
•

to appoint successor ^
will, 128 by
 3 2 INDEX 9* •
^
i
Mutawali,— (<><'w^<?.) •

129
* •
remuneration of, j^
• ^'

*
removal of, ^29 ^ ^
.
appointment of new, 127 • •• .
^^ ,
office of, not transfer^le, 126 ^ ,
•
personal decree agaiRst, 13(^

re-emption, • ,j:

definition of, 132

• * * • • •
• ,..

who may *^"'

claim, 133 , ^ ^
*
ari»e8 from sale, 136 ^
ground of, to continue up to decree, 135 •
*
whether b»jer should be a Mahomedan, gumre, 136
seller and pre-emptor should be Mahomedans, 136 •
'
when sale i»made t* a shafee^ 138
forms to be observed ,•139
tender of price not essential, 141 •

right of, extinguished on death of pre-emptor, 141

lost by acquiescence, 141 •**
^
not lost by refusal of offer hefore sale, 142
suit for, 142 • • »*
legal device for evading right^f 143 , « •
custom of, recognized among Hindus in Bahar and Gujarat, 132 •
P bate, •
•
*
expenses of, 19 ,
when ^
n%ces8ary, 32, 3S^ ,

• • •
Prohibited degrees,
w^ of consangi^jpityf 148
of affinity, 148
as between Foster-relations, 149

Pubertar, •
.

age of, 1^6

effect of marriage before, see marriage, (iv) of minors
taltLk not valid unless husband^has attained, 161

Eenuuciation of inLeritancew ^
how far binding on the heir, ^38
i^siduaries,
definition of, 43 •
table of, s. 41
female, 57
^ ••
,
*

• •
Rebi^fie, • \ «
*
peculiar features of, 61

• • •
 *
•
• INDEX 1

t
Restitutio J of con ugal rights,
siiTt for, by bus )and^ 153, 163, (iU)

"etum, •
^
doctrine of, 61 •
»
•
• <•» ^
• •
Reversionary interest, .
^
not recognized in Mahomedan Law^ 37

Rtyoca'on, »
' ^ » • •
ot Requests, 95 )

113
'^of^guts, • -
ofimif, 119 •
of ialak, 162

Seisin, *
, . ^
of a valid gift, 105
H necessa?/ element
•
Sharers, \ ,
detinition of, fiS
rule of succession among, 45-51
,:-tableof;s. •39
-".

Shiahs.
^ 1 2
diflfe
,jt sectg oS,
, law ot mberitance among, 80-889

Sister, ^ ,
' '
^^- '
(0 ,
as a sharer, see tab. Of sh., s. 39
-^
>
as a residuary, see tab. of res., 8. 4'S

(n) consanguine
—
as a sbcjer, see tab. of sh., s. 39.
^
-> as a residuary, see tab. r^ res., s. 41

(iii)
w^erine —
is a sharer, see tab. of sb., s. 39
o
Sister's children,
are distant kindred ^)f the third-class, 66, 73 o

Son,
is a residuary, see tab. of res., s. 41-

• Son's daughter, ) ,

aa a sharer, see tab. of sh., s. 39.

as a residuary, see tab. of res., s. 41.
'
»

Son's daughter's childrtto, ^

aredistant kindred of the first c^ass, 66, 67 j ,

>

14

• 9
 ^
/

194 *
t INDEX

Sor s son. h- 1. s.

is a residuary, see tab. of res., s. 41 ^

(t
Step-children,
are not heir^ 80 <
•
'
Step-paiehts. , • ^

are not heirs, 80 ^

• < f
*
Succession, ^

governed by the law of thr. stst of t4 e deceased, i. _

principles of,^n)ODg sharers and reiidnaries, 58. 59, 60

Succeasion by c\)ntract,
definition of, 78
• <
Sunnis, *«
different schools of, 12 *

^change frdfn oae Slinni sect into another, 13

True Grandfather, r

definition of, 44
as a sharer, see tab. of sh., s. 39
as a residuary, see tab. of res., s. 39

may inherit bo«h as sharer and residuary, 54

True (Grandmother, *
definition of, 44 ,

*
is^i sharer, see tab. of sh., s. 89 ^
'
Uncle (maternal,) «

is a difJnnt kinsman qi the fourth clas4, 66, 73

Uncle (paternal),
'
'
full— t

a residuary, see tab. of

; res., s. 41.

(ii) consavmiine — *

is a residuary, s^e tab. of res., s. 41.

uterine —
'

,'u)
is r distant kinsman of the fourth class, 66, 75
*
(Matfcrnal) uncle's children, ^
are distant kindred of the fourtjf^ class, 66,
75

(Paternal) uncle's son, h. 1. s.,

^ '
' •
{i)fidl-
C-s a residuary, see tab. of res., s, 41 ^ '

Qi) consanguine
—
* is a residuary, see tab. of res*^ s. 41 '

(iii) uterine — ^ ^

^ i* a distant kiiiSman of th^ fourth class, 6Q, 75

c
 •
^
INDEX • • li)')

Universal- Jegatee,
tletinition of, 79 •

Usury. ^

Mahomedan rule kgaicst, a iiior^il precept only, -4

>
*
Vesteci inheritance, •
^^
* •
ineanvjg of, 40 •
* •

Vested remainder, •
no^ recognizid iQ^MahoLi\eJaa l^v^ 3H ,

-::akf,
'
aefinition of,'llb #
who may create, 117
form • •
of, immaterial, 117 ^
*
may be isstamentary or inter vivos, 117 .

limits of power to make, 117 •

•
when complete, 118 , .

'

revocation of ,'
119
of mushattf 119

contingent, 120
characteristics of z^^a^*/ property, 120
famil^j 8ettl§miDt«) by way of, i20-l'2()

operation of, ma} be postpon(i(?^.120

illusory, 123
'
Wife, .
•
is H sharer, see tab. of sii., s. 3t>

Wi 1.
^
'
f #
leading authorrties on, 89
who can ipake, 89 • v^
^
form of, immaterial, 90
exteut of power to dispose M property by, 93, ^
e-sE^

• %

• o

• •

• ^9
^i
 J_.

K Mulla, (Sir) Dinshah Fardunji

Principles of Mahoraedan
M9583P7 law

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