Explana tion. Illustration. (k). Accordingly, the child of a paternal aunt by the same father and mother is not preferred to the child of a maternal uncle or aunt by the same father and mother, owing to there being no strength of consanguinity in the child of the paternal aunt. In like manner, a daughter of a paternal uncle by the same father and mother is not preferred to the daughter of a maternal uncle or aunt by the same father and mother, no regard being shown on account of the paternal uncle's daughter being the child of a residuary.-Sharífiyyah, page 126. (7). Thus if we suppose the deceased left two sons of a daughter of a paternal aunt by the same father only, and two daughters of a son of a paternal aunt by the same father only, who also are the daughters of a daughter of a paternal uncle by the same father only, and he left with them two daughters of the daughter of a maternal aunt by the same father only, also two sons of the son of a maternal aunt by the same father only, who also are the sons of a daughter of a maternal uncle by the same father only, in this form : Here the root of the case is three, two-thirds of which (=2) go to the relations by the father, and one-third (which is one) goes to those related by the mother, and this case is arranged by thirty-six; because the property is divided according to the generation where the difference first occur III. red; and regard is to be had amongst them according to the LECTURE number of branches and sides; consequently, the uncle by the father's side must be reckoned as two uncles, and these, as four paternal aunts, and each of the two paternal aunts by the same father, as two paternal aunts: thus the total amounts to eight paternal aunts; and if the number of the persons be reduced, the paternal uncle who is equal to four paternal aunts is reduced to one paternal uncle, and the remaining four (are reduced) to another paternal uncle; after this, one of the two-thirds (2) is given to each of the uncles. And out of the set (of relations) by the mother's side, the maternal uncle by the same father is reckoned as two maternal uncles, who are as four maternal aunts, and each of these two maternal aunts are reckoned as two maternal aunts upon the ground of regard being shown to the branches and sides in the roots.*-Sharífiyyah, page 127. * Consequently, here also there are on the whole eight maternal aunts; and when the number of persons be reduced, the maternal uncle, who is (equal to) four maternal aunts, becomes one maternal uncle, and the remaining four maternal aunts become another maternal uncle; but what they got from the root of the case is one-third (equal to one) which cannot be divided between these two maternal uncles without a fraction; the number of these two, therefore, is multiplied into the root of the case, which is three, and the product gained is six; then, out of this six, four are given to the set by the father's side, and two out of the said four are given to the paternal uncle by the father, and he is made a separate party, and (then) his portion is given to his last branch: I mean, the two daughters of his daughter, and thus one is (allotted) to each of them two, and the remaining two of the four are given to the two paternal aunts by the father's side, and their persons are arranged in one class or set. Then we look to those below the two paternal aunts, and find one son equal to two sons, and one daughter equal to two daughters, by reason of their number being taken from (that is reckoned according to) their branches; and if they be reduced to individuals, the two daughters are made (i. e., reduced to) one son. Thus the total amounts to three sons. Now the portion of the two paternal aunts, which amounts to two, cannot be divided among three (without a fraction), nay, there is disagreement between them; consequently, the (portion amounting to) three is left as it is; and two out of the (said) six are given to the set by the mother's side, then out of this two, one is given to the maternal uncle, and he is made one set (or party), and the other one (is given) to the two maternal aunts, and they are made one set; and when the maternal uncle's portion, which is one, is given to the two sons of his daughter, the same cannot be divided between them (without a fraction); consequently, the number of those two is left as it is. Now if we look (to the persons) below the two maternal aunts, we find one son equal to two sons, and one daughter equal to two daughters, and if they be reduced (to individuals), the total would amount to three sons; but one cannot be divided amongst them (without a fraction); consequently, we leave three as they were. Then if we look to the number of the persons,-I mean, 3, 2, LECTURE III. Then this rule (that is, the one which is mentioned in full with respect to the paternal uncles and aunts, and maternal uucles and aunts, of the deceased, and their children,*) is applied to the sides of the paternal uncles and aunts of his parents, and their maternal uncles and aunts; then to their children; then to the side of the paternal uncles and aunts of the parents of his parents, and to their maternal uncles and aunts; and then to their children, as in the case of residuaries (m).—Sirájiyyah, Arabic, page 130. (m.) That is to say, if there be found no paternal uncle and aunt, and maternal uncle and aunt of the deceased, or their children, the rule aforesaid is applied to the deceased's father's paternal uncle by the same mother only, and his paternal aunt, maternal uncle and maternal aunt, and 3,-we find equality between three and three, and we are contented with one of those two (threes,) and finding disagreement between two and three, we multiply one of them into the other, and gain six; then we multiply this six into that six which is the root of the case, and the product is 36, by which the case is arranged :-the set by the father's side had four out of the root of the case; now if the same be multiplied into the multiplicand, which is six, the product is twenty-four, which is the portion of this set out of thirty-six. But as to the portion of each of them out of the same, we say that if the portion (=2), which the two daughters of the daughter of the paternal uncle by the same father had on account of the uncle, be multiplied into the multiplicand, it will amount to twelve; consequently, each of those two will have six; and if the portion (=1), which those two had on account of the paternal aunt, be also multiplied into the multiplicand aforesaid, it will amount to six; consequently, those two will have three each: thus each of those two will have nine shares,-six by relation to the paternal uncle, and three by relation to the paternal aunt. In like manner, if the portion (=1) of the two sons of the daughter of the paternal aunt be multiplied into the said multiplicand, it will amount to six, of which, three is for each of those two. The total of these shares amounts to twenty-four. The set by the mother's side had two out of the root of the case, and if we multiply the same into the multiplicand, which is six, the product is twelve, which is the share of this set out of thirty-six. But as regards the share of each of them, we say, if the portion (1) of the two sons of the daughter of the maternal uncle be multiplied into the mutiplicand, which is six, it will amount to six, then each of those two shall have three; and if the share (1) of the branches of the two maternal aunts be also multiplied into this multiplicand, it would amount to six, then the two sons of the maternal aunt's son will have four out of the six,-two each. Thus each of the two sons has five,-three on account of relation to the maternal uncle, and two on account of relation to the maternal aunt; and out of that, the two daughters of the daughter of the maternal aunt will have two,-one each; and ten will be allotted to the two sons, and two to the two daughters, the total of these shares amounting to twelve; and if we add this to twenty-four, the grand total will be thirty-six.-Sharífiyyah, pages, 127–130. Sharífiyyah, page 130. III. and to the deceased's mother's paternal uncle, and her LECTURE paternal aunt, maternal uncle and maternal aunt. Now should there be only one of them, he or she would take the whole property by reason of there being no (other) claimant; but if there be many, and the side of their relation be one and the same, then the strongest by relationship is preferred, whether such person be a male or female; and if the (degree of their) relationship be equal, then the male has the portion of two females; but if the sides of their relationship be different, then the person related by the father will have two-thirds, and the person related by the mother will have one-third. If these be not in existence, then the rule applicable to their children is the same as that to the children of the fourth class. But if their children also be not in existence, then the rule in question is applicable to the paternal uncles and aunts and the maternal uncles and aunts of the deceased's parents, then to their children; and so on ad infinitum. And it is indicated by the author's dictum as in the case of residuaries,' that the succession of the distant kindred is regulated by regard being had to that of the residuaries, as has been already explained; consequently (the rule for) the succession of the residuaries is actually followed (in the case of distant kindred). And when the succession of the residuaries is known, the rule (for the paternal uncles of the deceased) is applied to the paternal uncles of his (the deceased's) father, then to those of his (the deceased's) paternal grandfather; such is also the case with those who are in the meaning of the residuaries (i.e., governed by their rules for succession).-Sharífiyyah, page 130. Principle. LECTURE IV. ON PREGNANCY AND THE FŒTUS-MISSING PERSONS- COMMON ACCIDENT. LXIX. The longest time of pregnancy is two years according to Abú Hanifah and his companions.* And the shortest time for it is six months (a) according to all the doctrines.† (a.) In the Hadís of Ibnu Masúd it is stated that four months after conception the foetus has vitality, then in two months more its formation becomes completed. So, in the sixth month, the fœtus, complete in its person, may come out (of its mother's womb). This is stated by Shamsul-Aimma Sarakhsí in his commentary on the book of Divorce. Sharífiyyah, page 138. ANNOTATIONS. lxix. The longest time of pregnancy is two years according to the tradition reported by Ayeshah (one of the wives of the Prophet). According to the other three Imúms (Sháfií, Málik, and Hambal,) it is four years.-Durr-ul-Mukhtár, page 282. It is three years according to Layis (or Layith,) the son of Saád al-Fahmí; and seven years according to Zahrí.-Shirájiyyah, page 52. Shirájyyah, page 52. † Durr-ul-Mukhtár, page 282. Sirájiyyah, page 52. With respect to the shortest period of gestation, the Muhammadan law is the same as the Roman, and upon this point the doctors of all sects seem to be agreed. But there is less unanimity regarding the longest period, though the notions entertained by all on the subject will probably excite the smile of a European Physiologist. They form, however, a part of the Muhammadan code, and cannot well be entirely disregarded by our courts of justice without altering the law which they are bound to administer in some cases, and assuming in so far the functions of the legislature.-B. M. L., page 156. According to Sháfií, the period of gestation may be extended to four years; and two cases apparently well authenticated, of persons who are said to have remained so long in their mothers' wombs are cited in support of his opinion. With respect to these cases, the author of the Sharifiyyah pertinently observes, that the parties could neither have known the fact themselves, nor have well been informed of it by others, since none but God |