II.

LECTURE The two widows will collectively receive, and equally divide among themselves, one-eighth of the deceased's estate. Vide Macnaghten's Precedents of Muhammadan Law, Case lxv.

Principle.

Of daugh

ters.

X. An only daughter takes a moiety, two or more daughters collectively take two-thirds, of the deceased's estate, in the event of his leaving no son or sons; but if he left also a son or sons, then the daughters are no longer sharers, but are rendered residuaries, and each of them is, in that case, entitled to a portion equal to half of a son's share. **

COROLLARY.

The term 'daughter,' intending one's own daughter, and not a step-daughter also, the latter is no heir, and has no pretention to claim inheritance.- Vide Macnaghten's Precedents of Muhammadan Law, Case xxii.

ANNOTATIONS.

x. The daughters begotten (or brought forth) by the deceased take in three cases: half (goes) to one only, and two-thirds to two or more; and if there be a son, the male has the share of two females, and he makes them residuaries.-Sirájiyyah, page 10.

So whatever may remain after satisfying the share or sharers occurring in the case, the same is to be divided in the proportion of two shares to each brother and one share to each sister.

* Let us proceed to the shares of the females; and 1-If Amar die without children, and without any issue of a deceased son, his widow Hindah must receive a fourth of his assets; but her share is an eighth only, if any such issue be living should he leave more widows than one, they take equal parts of such fourth or eighth; so that the legal share of the widower is always in a double ratio to that of the widow or widows: as, if Hindah die worth twenty-four thousand zecchins, her surviving husband Amar must be entitled either to twelve or to six thousand; and if Amar die with the same estate, his widow Hindah must have either six or three thousand for her sole share; or if Zayenab and Abla had also been legally married to Amar, the three widows must receive either two or one thousand zecchins each, as the case may happen. 2-One daughter takes a moiety, and two or more daughters have two-thirds of their father's estate; but if the deceased left a son, the rule, expressed in the Kurán, is this : "to one male give the portion of two females," and the daughters in that case are not properly sharers, but residuary heirs with the son, their part of the inheritance being always

Of son's

XI. A son's only daughter takes a moiety, two or Principle. more such daughters take two-thirds, of their late grandfather's estate in the event of his leaving no daughters. son, nor daughter, nor son's son. But if the deceased left a son, then the son's daughter or daughters are excluded by him; if he left a single daughter of his own, then one-sixth only goes to the son's daughter or daughters; but if he left two or more daughters, then his son's daughter or daughters get nothing, unless there be in an equal degree with, or in a lower degree than, them, a male, by whom they are rendered residuaries, and the residue remaining after the twothirds of the estate have been taken by the deceased's daughters is divided between this male and the son's daughter or daughters according to the rule "The

in a sub-duple ratio to his part. Thus, if Amar die worth twenty-four thousand pieces of gold, his only child Fátima takes twelve thousand as her share, but, if she have three sisters, Azzá, Latífah, and Zubaedah, two-thirds of the assets, or sixteen thousand pieces, are equally divided between the four girls; and, if there be a son Umar, he must receive, in the first case, sixteen thousand, while Fátima has eight; and in the second, eight thousand, while she and her sisters take each four thousand pieces. 3-If Umar had died before his father, leaving female issue, and his father had then died without any daughter of his own, the daughters of Umar would have had precisely the same shares, to which those of Amar himself would have been entitled, but had Fátima been living, she would have taken half the estate, or twelve thousand pieces of gold, and a sixth only, or four thousand the complement of two-thirds or sixteen thousand, would have been equally distributed among her nieces. Had Fátima and Azzá been at that time alive, they would have taken their legal shares to the exclusion of their brother's female issue, unless the right of that issue had been sustained by a male in an equal or a lower degree, who would have made them residuaries, "the male taking, by the rule, the portion of two females;" but a male in a higher degree would not have given them that advantage; and, if Umar himself had survived, his daughters would have been wholly excluded. The six cases, therefore, or differents ituations, of the female issue of Umar may be thus recapitulated: 1st,-A single female takes a moiety. 2nd,-Two or more have two-thirds. 3rd,-A male in the same, or a lower, degree than themselves, gives them a residuary right in a sub-duple ratio to his own. 4th,-With a daughter of Amar, who is entitled to half, they would have only a sixth, to make up the regular share of the female issue. 5th,-They are excluded, if Amar left more daughters than one, but no male issue in any equal or a lower degree. 6th,-A son also of Amar wholly excludes them. In the first three cases, their legal claims correspond with those of daughters; but in the last three their rights are weaker, because they are in a remoter degree from the deceased.-Illustration by Sir William Jones, vide Sirájiyyah, page 10.

LECTURE male has double the portion of a female." If, howII. ever, the deceased left neither a son nor daughter,

but only his son's son and daughter, then the whole of his estate will be taken by them-the grandson taking two shares and the granddaughter one share in accordance with the above rule (y).*

(y). If a man leave three son's daughters, some of them in lower degrees than others, and three daughters of the

ANNOTATIONS.

xi. The son's daughters are like the daughters begotten by the deceased; and they may be in six cases: half (goes) to one only, and twothirds to two or more, on failure of daughters begotten by the deceased; with a single daughter of the deceased, they have a sixth completing (with the daughter's half) two-thirds; but, with two daughters of the deceased, they have no share of the inheritance, unless there be, in an equal degree with, or in a lower degree than, them, a boy,† who makes them residuaries. As to the remainder between them, the male has the portion of two females; and all of the son's daughters are excluded by the son himself.-Sirájiyyah, page 10.

A sixth is the share of the son's daughter or daughters with a single daughter begotten (or brought forth) by the deceased, completing, (with the daughter's half) two-thirds.-Durr-ul-Mukhtár, page 863.

If a person leave three son's daughters, some of them lower in degree than others, and three daughters of the son of another son of the same

* When there is a son, the children of a son take nothing; when there is one daughter, she takes a half, and the son's daughters have a sixth; and if there are two daughters, they take two-thirds, and there is nothing for the son's daughters. That is, when there is no male among the children of a son; but if there is a male he makes the females (whether his sisters or cousins) residuaries with him; so that if there were two daughters or more of the loins, they would have two-thirds between them, and the remainder would pass to the children of the son, in the proportion of two parts to each male and one part to each female. Though the male were in a grade below them, he would make them residuaries with him; so that the remainder would be between him and them in the same proportion, or two parts to each male, and one to each female. Thus, if there were two daughters, a son's daughter, the daughter of a son's son, and the son of a son's son, the daughters would take two-thirds, and the remainder be between the son's daughter and all below her, in the proportion of two parts to the male, and one part to each female. The principle in this case is, that a son's daughter becomes a residuary with a son's son, whether he is in the same or a lower grade with herself, when she is not a sharer.-Fatáwá Aalamgírí, vol. vi, p. 625;-B. Dig., pp. 687 and 688.

Here the Arabic word rendered by 'boy' is 'Ghulám' by which is here meant a brother, or paternal uncle's son, or the son of either of them.

son of another son, some of them in lower degrees than others, LECTURE and three daughters of the son's son of another son, some of them in lower degrees than others, as in the following table, which is called the case of tashbíb:

Here the eldest of the first line has none equal in degree with her; (because she is related to the deceased by the intervention of one person, and none of those other daughters is so); the middle one of the first set is equalled in degree by the eldest of the second, (by reason of both of them being related to the deceased by the intervention of two persons) ;* and the youngest of the first set is equalled by the middle one of the second, and by the eldest of the third set (since every one of them is related to the

ANNOTATIONS.

description as above, and three daughters of the son's son of another son of the above description, as in this table.-Durr-ul-Mukhtár, page 867. (The table here alluded to is the same as the case of Tashbib above given).

Here the eldest in the first set has none equal in degree with her, consequently a moiety is her portion, and the middle one of the first set is equalled in degree by the eldest of the second, they, therefore, have a sixth to make up two-thirds; and those in lower degrees take nothing unless there be a son with any one of them, who makes her a residuary as well as her who is equal to him in degree, and also her who is above him, but not entitled to a share: those below him are excluded.— Ibid.

II.

LECTURE deceased by the intervention of three persons);* the youngest of the second set is equalled by the middle one of the third set (by reason of every one of them being related to the deceased by the intervention of four persons);* and the youngest of the third set has no equal in degree; (because she is related to the deceased by the intervention of five persons, whereas none of the other daughters is so.)*—Sirájiyyah, page 12.

"When thou hast comprehended this," says the author of the Sirájiyyah," then we say, the eldest of the first set has a moiety, (for she stands in the place of the deceased's own daughter,) the middle one of the first set has a sixth together with her equal in degree, (namely, the first of the second set,)* to make up two-thirds;† and those in lower degrees, never take any thing unless there be a son with them, who makes them residuaries, both her who is equal to him in degree, and her who is above him, but not en

* Sharífiyyah, page 24.

We may truly say, that it is very perspicuous, and that no comment, after what has been premised, could render it clearer. An example, however, will show more distinctly than an abstract rule, in what manner an estate is divisible, when a male descendant gives a residuary title to a female in the same, or in a higher, degree. Call the only surviving male descendant' Umar,' and suppose him to be the brother of Amína, who stands lowest in the first set of females: here the highest female in that set must receive a moiety of the assets; the next below her takes a sixth together with the highest of the second set, as the complement of two-thirds; and the residue is divided into five portions, of which Umar claims two, and each of the females in the same degree, one; but the three females below them are excluded. If Umar be the brother of Zarífah, whom we suppose the lowest of the middle set, the remaining third of the estate must be distributed in sevenths, because there are five females, three in a higher, and two in an equal, degree with Umar, who must always have a double portion; and, if he be the brother of Unaeza, the lowest female of the third set, (who, on the former supposition, would have been excluded,) there will be six female residuaries entitled to portions with Umar, but in a sub-duple ratio; so that, if Amar died worth twenty-four thousand ducats, the daughter of his son takes twelve thousand of them; the two daughters of his son's sons receive each two thousand, and the residue being eight, Umar is entitled also to two thousand ducats, while Unaeza and the five women, who remain, have each one thousand, which they owe to the fortunate existence of Umar.-Illustration by Sir William Jones, vide Sirájiyyah, page 12.

"To make up two-thirds."-It is so, because when the eldest in the first set stood in the place of a begotten daughter, then those who are below her in one degree stand in the place of son's daughters.-Sharifiyyah, page 24.

They are the remaining six of the nine daughters; because when full two-thirds go to those three, then there remains no portion for the remaining daughters, nor could they become residuaries: consequently, they have no share whatever in the inheritance.-Ibid, p. 24.