CASES BEARING ON THE COROLLARIES 1-10. LECTURE According to the Muhammadan Law, a child born in wedlock is deemed to be the child of the mother's husband.— Precedents. Jeswunt Sing-Jee, Ubby Sing-Jee, and Chuttur Sing-Jee, and Deep Sing-Jee, v. Jet Sing-Jee, and Ubby Siug-Jee. Privy Council Decisions, Sutherland's Edition, page 150; Moore's Indian Appeals, Vol. III, page 245. According to the Muhammadan Law, the legitimacy or legitimation of a child of Muhammadan parents may be presumed or inferred from circumstances without proof, or at least without any direct proof, either of a marriage between the parents, or of any formal act of legitimation.Mahomed Bauker Hossein Khan Bahadoor v. Shurfoonnissa Begum, an infant, by Syed Fareed, her grandfather and next friend. Privy Council Decisions, Sutherland's Edition, page 400; Moore's Indian Appeals, Vol. VIII, page 136. According to the Muhammadan Law, the acknowledgment of a father renders a son or daughter a legitimate child and an heir, unless it is impossible for the son or daughter to be so.-Comda Beebee v. Syed Shah Jonab Ali.-W. R., Vol. V, page 132. If the deceased during his lifetime acknowledged the parentage of those persons who now claim to be his sons; and after his death their mother make the same assertion, calling herself his widow, all these three persons will be his legal heirs. Agreeably to the Vikáyá,-" Or if a person die, having acknowledged a certain child to be his son. If afterwards the mother declare the child to have been his son and herself to have been his wife, they both inherit."-Macnaghten's Precedents of Muhammadan Law, Case Ixiv. 'It is not unusual, we all know even among us, for friendship to adopt in effect, the children of strangers in blood;' but here is the plain difference between such acts of friendship and the legal adoption of the Romans; the friend and intended benefactor may change his mind when he pleases, but the adopted child at Rome obtained by the adoption legal rights of inheritance and succession to the adopter, of which he could not be arbitrarily or wantonly dispossessed."-Summary of Taylor's Roman law, Vol. i, page 74.Note by Sir William Macnaghten, appended to case vi, of Chapter I. Pre cedents of Muhammadan Law. LECTURE II. Precedents. Where there has been continual co-habitation between a man and woman, and children have been born to them, the Muhammadan Law presumes that there has been a lawful marriage, and that the children are legitimate. To bastardize the issue, absolute disproof of legitimacy of marriage is necessary.-Mussumat Hunsoo v. Mussummat Wuheed-oon-nissa. Agra Sudder Dewanny Adawlut Decisions for 1864, page 380. A deed by a Muhammadan in which he declared "I have adopted A & B to succeed to my property " was held to be neither a deed of gift nor a testamentary gift to take effect after the death of the donor, there being a complete absence of any relinquishment by the donor or of seizin by the donee. The Musulmán Law presumes a marriage between parties who live together as man and wife, and nothing appears to invalidate that presumption. A son, born under such circumstances, inherits equally as one born in proved wedlock, and is not divested of his right as one of the heirs to the estate of his paternal uncle, though discarded by the latter. By Muhammadan Law, illegitimate sons of a Muhammadan by a slave girl, if acknowledged by their father, are entitled to share equally with his legitimate sons. Acknowledgment of an illegitimate son by a Muhammadan need not be a formal acknowledgment; if it can be made out from his acts and conduct it will be sufficient.— Saiyed Walioolla v. Miran Saheb, son of Abdool Rahim, deceased, Reid's Bombay High Court Reports, Vol. II, page 301. The marriage of a Muhammadan with his slave girl is ineffectual and not binding: for, lawful enjoyment, such as is obtained in marriage, accrues equally from the embrace of a slave girl.-Calcutta Sudder Dewanny Adawlut Reports, Vol. I, page 48 (New Ed., page 63.) But where a woman is merely the nominal slave of a man, (that is to say has been sold or hired to the person with whom she resides, which condition is not slavery), her master can marry her.-Agra Sudder Dewanny Adawlut Decisions for 1864, page 380. II. The acknowledgment of a brother by the heir entitles LECTURE to inheritance.-Mihr Ali and Sukeena Begum, (paupers), v. Kureem-oon-nisa Begum and Lootf Ali. Sudder Dewanny Adawlut Reports, Vol. II, page 112.-(New Edition, Precedents. page 142.) Adoption confers no right of inheritance. During the lifetime, or after the death, of the adopting father, the adopted son has no claim upon his property. The adopting father's control over his own property is absolute, and although the adopted son may be thereby left entirely destitute, he is at liberty to dispose of his property as he pleases, by sale, gift, or otherwise.-Macnaghten's Precedents of Muhammadan Law, Case vi. XXVIII. In default of son's son how low soever, Principle. the father succeeds; in his default, the true grand- of father father how high soever, according to the proximity and grandof degree. ANNOTATIONS. xxviii. Then the deceased's root (that is father) who with one or more daughters (of the deceased) is a residuary, as well as a sharer, as is already mentioned, then the true grandfather, who is the father's father how high soever; but as regards the mother's father, he is a false grandfather, and, therefore, one of the distant kindred.- Durr-ul-Mukhtár, page 864. Then succeeds his root or father, then the grandfather, that is father's father how high soever.-Fatáwá Sirájiyyah, page 568. Then (inherits) his root, that is father, then his paternal grandfather, that is, father's father how high soever.†-Sirájiyyah (Arabic) page 39. * Vide Hamilton's Hidayah, Vol. III, page 172. †The oiginal of the above, as found in every edition of the Sirájiyyah, except that made by Sir William Jones, runs thus :-" Summa aslu-hu, ay al-ubu, Summa al-jaddu, ay, ab-ul-abi wa in alá." The verbatim translation hereof is as above given. In Sir William Jones's edition, however, the word "ay (that is)" contained between the words "al-Jaddu (the grandfather)" and ab-ul-abi (father's father)" is left out, and the translation made by him of the passage bereft of the word " ay (that is)" is not also quite correct. The same being as follows :-" Then comes his root, or his father then his paternal grandfather, and their paternal grandfathers how high soever." From this should be struck off the words and their' which are not only not in the original, but which alters the sense of the original. LECTURE 11. Residuaries defined. Principle. Of the Then the offspring of his father, or his brothers, then their sons how low soever.-Sirájiyyah, page 18. "Of the above relatives," says the author of the Sirájiyyah, in his Fatáwá Sirájiyyah," those of the whole blood are, however, to be preferred to those of the half-blood."t Accordingly, the order of succession distinctly laid down by him in that work of his, is as follows:: XXIX. Then the brother by the same father and mother, then the brother by the same father only, whole and then the whole brother's sons, then the sons of the thers, and half brother by the same father only, then their their sons. sons according to this order.-Fatáwá Sirájiyyah, page 568. half-bro Principle. Then the offspring of his grandfather, or his uncles, then their sons how low soever.-Sirájiyyah, page 18. The heirs inheriting according to the above rule are also fully and consecutively enumerated by the said author in his Fatáwá Sirájiyyah: The same is as follows: XXX. Then the paternal uncle by the same father and mother, then the paternal uncle by the ANNOTATIONS. xxix. Then the offspring of his father, (namely), the brother of the whole blood, then the brother by the same father only, then the son of the whole brother, then the son of the brother by the same father only how low soever.-Durr-ul-Mukhtár, page 864. XXX. Then the offspring of his grandfather, (that is) father's whole brother, then father's half-brother by the same father only, then the son of the father's whole brother, then the son of the father's half-brother by the same father only how low soever; then the father's uncle, then his son.-Durr-ul-Muktár, page 864. xxx, xxxi. And 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.— Sirájiyyah, page 11. * See the Introductory Lecture, page 55. uncles and fathers' their sons. same father only, then the sons of the paternal Of paternal uncle of the whole blood; then the sons of the their sons; paternal uncle of the half-blood as above, then their paternal sons according to this gradation or order. Then uncles and the father's paternal uncle of the whole blood, then father's paternal uncle by the same father only, then their sons according to this order.*-Fatáwá Sirájiyyah, page 568. To the above, should be added, Of the off XXXI. Then the offspring of the father's great- Principle. grandfather, then the offspring of the father's great- spring of great-grandfather, and so on, according to the above the father's order.* greatgrandfather. ANNOTATIONS. xxxi. Then the grandfather's uncle, then his son how low soever, according to the (above) order.-Durr-ul-Mukhtár, page 864. xxvi, xxxi. The nearest of the residuaries is the son; then the son's son how low soever; then the father; then the grandfather, or father's father how high soever; then the full-brother, then the halfbrother by the father, then the son of the full-brother, then the son of the half-brother by the father; then the full-paternal uncle, then the half-paternal uncle by the father, then the son of the full-paternal uncle, then the son of the half-paternal uncle by the father, then the full-paternal uncle of the father, then the half-paternal uncle of the father on the father's side, then the son of the father's full-paternal uncle, then the son of the father's half-paternal uncle on the father's side, then the paternal uncle of the grandfather, then his son how low soever.-Fatáwá Alamgirí, Vol. VI, page 628.-See B. Dig., page 691. Sir William Macnaghten, perhaps, by blindly following the erroneous translation of the Sirájiyyah, made by Sir William Jones already noticed, (ante, page 118) as his safe guide, and taking the term grandfather to mean the nearest grandfather,' and not any higher than he, has laid down as follows:-"Where there is no son, nor daughter, nor son's son, nor son's daughter, however low in descent, nor father, nor grandfather, nor other lineal male ancestor, nor mother, nor mother's mother, nor father's mother, nor other lineal female ancestor, nor widow, nor husband, nor brother of the half or whole blood, nor son's son how low soever, of the brethren of the whole blood or of those by the same father only, nor sister of the half or whole blood, nor paternal uncle, nor paternal uncle's son, how low soever, (all of whom are termed either sharers or residuaries,) the daughter's children and the children of the son's daughter succeed; and they are termed the first class of distant kindred."-Macn. M. L., Chap. I, Princ. 43. S |