II. mother, in such case, Muhammad divides a sixth part LECTURE between them, in thirds, regard being had to the sides, while the other two lawyers, namely, Abú Hanífah, and Abú Yusuf (divide it) in moieties, regard being had to the persons (of the grandmothers). Sháfií and Málik are of this (latter) opinion. The same is laid down also in the Kanz as being decidedly the law: the dictum of this authority is that there is no difference, a person having two relations, is (held) as having one relation.'Durr-ul-Mukhtar, page 866. tions. (i.) The case of more than two relations is thus illus- Further trated:"If the woman who (as above) married her son's illustrason with her daughter's daughter, and a son was born to them, and this son is married to the daughter of her mother's daughter's daughter, and a son is born to them, the said woman is related to the last born as the mother of his mother's mother's mother, also as the mother of his father's mother's mother, and also as the mother of (his) father's father's father; and the other woman, that is the mother of the last mentioned woman's son's wife, is related to the last born son as the mother of (his) father's father's mother.Sharífiyyah, page 37. If there be a grandmother having three relations, and another having one relation, then, according to Abú Yusuf, the one-sixth part should be divided between them in moieties; but according to Muhammad in four parts. Imám Sarakhsí says: "there is no tradition from Abú Hanífah in (regard to) the case of one of the grandmother's having several relations. It is, however, mentioned in the Book of Inheritance by Hasan, the son of Abd-ur-Rahmán, the son of Abd-ur-Razzák Sháshí, one of the companions of Sháfií, that the doctrine of Abú Hanífah, Málik and Sháfí is the same as that of Abú Yusuf.-Sharífiyyah, page 38.. *Sirájiyyah, page 15. II. Residuaries defined. LECTURE THE term 'asabat' or 'asabah,'*—which signifies a nerve, tendon, ligament, (whence) connections, relations and kindred, is, in law, applied to those relations, who inherit the residue of a deceased person's assets which remain after giving the fixed portions of such sharers as do not become residuaries.† Properly speaking, the residuaries are the principal heirs, commencing, in the descending line, from the deceased's own children, and the children of his son how low soever, and, in the ascending line, from the father and true grandfather how high soever, and their children. In default of a simple sharer or sharers (as the case may be), the residuaries take the whole of the deceased's property. Principle. The term asabah' was first rendered simply "heirs" by Sir William Jones in his translation of the Baghyat-ulBahis, but he afterwards substituted for it the word residuaries' in his translation of the Sirájiyyah, perhaps because such heirs succeeded to the residue. Sir William Macnaghten and other writers also have adopted or used the same term (residuaries) for asabah.' As I could not venture to depart from those learned writers in using for asabah' an expression other than that adopted by them, the reader, therefore, should understand by the term residuaries,' the principal heirs who take not only the residue remaining after giving to the sharers their fixed portions, but also the whole of the deceased's assets on failure of a simple sharer or sharers. The residuaries are principally of two kinds: (viz.) 1-Residuaries by consanguinity, and 2Residuaries for special cause. XXIII. The residuaries by consanguinity are divided into three classes. Residuaries in their own right or by themselves,-residuaries in another's *The final 't' of Arabic nouns, rather verbal nouns, is generally changed into 'h,'-as 'Hijrat' (forsaken) is changed into Hijrah' the era of Muhammad counted from the day of his leaving Mecca and retiring to Medina. The sharers who do not become residuaries are the husband, wife, mother, true grandmother and mother's children, of whom the latter two are in certain cases excluded. Vide Introductory Lecture, page 58. II. right, and residuaries together with another.- LECTURE Sirájiyyah, page 17. in his own XXIV. The residuary by himself, or in his own Residuary right, is every male (j) in whose line of relationship right. to the deceased no female enters (k):* such residuaries principally are of three classes: (viz.,) descendants, ascendants, and collaterals. (j.) The author of the Sirájiyyah recognizes the male sex, because a female cannot be a residuary in her own right, but in another's right, or together with another.Sharífiyyah, page 38. (k.) Because he, in whose line of relationship a female enters, is not a residuary,-as the mother's children who are sharers, and mother's father, and daughter's son, who are distant kindred, and not residuaries.-Ibid. Again, XXV. The residuaries in their own right are of four classes: 1-The offspring (literally part) ANNOTATIONS. xxiv. The residuary in his own right intends every male in whose line of relationship to the deceased no female enters: if a female does enter, the male is no longer a residuary,—as the mother's son (that is, the brother by the same mother only) is not a residuary, but a sharer; likewise, the mother's father and daughter's son, who are (Zaví-ul-arhám) distant kindred (and not residuaries).*-Durr-ul-Mukhtár, page 864. XXV. The residuaries in their own right are of four classes: 1— the offspring of the deceased; 2-then his root; 3-then the offspring of his father; and 4-then the offspring of his grandfather.—Durr-ulMukhtar, page 864. The residuary by himself or in his own right is defined to be 'every male in whose line of relation to the deceased no female enters;' and such residuaries are of four sorts: 1-the offspring of the deceased; 2-his root; 3-the offspring of his father; and 4-the offspring of his grandfather.-Fatáwá Alamgírí, Vol. VI, page 628 ;—B. Dig., p. 691. And they (the residuaries in their own right) are of four classes: 1-the offspring of the deceased; 2-his root; and 3-the offspring * Vide Sirájiyyah, page 18. II. LECTURE of the deceased; 2-his root;* * 3-the offspring of his father; and 4-the offspring of his grandfather how high soever.† ANNOTATIONS. of his father; and 4-the offspring of his grandfather.-Sirájiyyah Arabic, page 38. The above is a verbatim translation of its original which runs thus: “Wa hum árbátu asnáfin: juz-ul-mayyiti wa aslu-hu, wa juzu abíhi, wa juzu jiddi-hi." This reading of the passage is to be found in all the editions of the Sirájiyyah, except in that made by Sir William Jones, in which the first two words of the passage are " Wa hiyá (and this)" instead of "Wahum (and they)" as in the above reading. This, however, is of no importance; but the translation of the above passage made by him, which, limiting the collateral residuaries to be the offspring of the nearest grandfather, at once excludes the descendants of the grandfathers higher than the nearest, though their heritable right, as residuaries, is universally recognised. The translation in question runs thus :-" And of this sort there are four classes: the offspring of the deceased and his root; and the offspring of his father, and of his nearest grandfather." (Sirájiyyah, page 10.) Now, in the original, the term 'grandfather' has no such epithet as 'the nearest,' and not being qualified by this adjective, it does not (as it otherwise does) exclude the offspring of any true grandfather how high soever. Add to this, when at the end of the same paragraph the author (of the Sirájiyyah) has asserted that the rule is the same in regard to the paternal uncles of the deceased, and, after them, to the paternal uncles of his father, and, after them, to the paternal uncles of his grandfather,' then according to the Sirájiyyah the descendants of the lineal ancestors (at least) up to the great-greatgrandfather are residuaries, and, as such, heirs at law. Very likely, the learned Translator has taken the first of the two phrases “Al-ákrabu, fal-ákrabu (the nearest, then, the nearest)," which follow the term 'grandfather,' but form a sentence different from that which ends with the word 'grandfather,' (the finite verb 'succeeds' or 'inherits' being understood as is the case with many Asiatic languages including *By a Metaphor the deceased is considered to be a tree of which his descendants are the branches, and the ascendants the roots. ↑ Vide Sirájiyyah, page 18. XXVI. Of the residuaries, the nearest succeeds GENERAL first, then the nearest after him.* RULE. ANNOTATIONS. 6 Arabic), and has placed it as an adjective before that word (grand- * Vide Sirájiyyah, Arabic, page 39. Vide Introductory Lecture, pages 48 & 49. |