IV. LECTURE the child come out, (and it make any of those signs,*) and then die, it shall not inherit; (for when the greater part of its body is dead, the whole of it must be taken to be dead; consequently it shall not inherit*); but if the greater part of it come out, and then it die, it shall inherit: and if it come out straight, (that is with its head first,*) then its breast is considered, (by which it is meant that, if the whole of its breast come out, and the child be alive, it shall inherit; because the greater part of it was alive*); but if it come out inverted, (that is with its feet first,*) then the navel is considered, (for if his navel come out, and the child be alive, it shall inherit, because the greater part of it came out alive, and if the navel does not come out, it shall not inherit.*)—Sírajiyyah, page 53. Thus— Principle. Reason. LXXVI. A child will inherit if the greater part of its body is protruded with vitality indicated by any of the acts or signs above mentioned.† "Because," says Sharif, "the same rule is applicable to the case of the greater part (coming out) as to the case of the whole (body coming out;) so (in the case of the greater part coming out) it must be supposed as if the whole of his body came out alive. And the root of this is what is related by Jábir from the Prophet, who said: "If the child move, it shall inherit, and prayer shall be read for him (on his death)." The rule (of regulating the inheritance) is, however, in consideration of the greater or less portion of its body coming out; as is laid down by the author.-Sharífiyyah, page 140. ANNOTATIONS. lxxv & lxxvi. When a child is born alive, he acquires a vested interest, which passes to his representatives in the event of his death. If that should occur immediately after delivery, it may be a question of difficulty to determine whether the infant was actually born alive or not.†— B. M. L., page 160. * Sharifiyah, page 140. The Muhammadan law has provided for cases of this kind, with a minuteness which is perhaps unknown to other systems of jurisprudence. If the infant exhibits any of the signs by which life is usually indicated, as a sound, sneezing, weeping, laughing, or the motion of a limb, it is to be LXXVII. The chief rule in arranging cases Principle. on pregnancy is, that the case be arranged by two suppositions, that is by supposing that the child in the womb is a male, and by supposing that it is a female: then, compare the arrangement of the two cases, and if those two agree in any part, then multiply the measure of one of the two into the whole of the other; and if they disagree, then multiply the whole of one of the two into the whole of the other, and the product will be the arranger of the case: next multiply the allotment of him, who would have something from the case which supposes a male, into that of the case which supposes a female (in the instance of its being a case of disagreement,*) or into its measure (in the instance of its being a case of agreement,*) and then (multiply also the allotment*) of him who takes something ANNOTATIONS. According to Fatáwá Alamgírí, however, the child will inherit if half, and not less than half, of its body is protruded with vitality, or if its head is presented and breast protruded with vitality.—The passage to this effect (contained in the said work), is as follows: If the child is born dead, he does not inherit, and there is no other legal effect or consequence. The signs of life are breathing, making a sound, sneezing, weeping, laughing and making motion, as of the eyes or hands. If half of the child is protruded alive and it then dies, it is entitled to inherit, but not if less than half be protruded. When the head is presented and the breast is protruded, while the child is still living, it inherits; but if the feet are presented, regard is to be had to the navel.-Fatáwá Alamgírí, page 634.-B. Dig., page 703. accounted alive. And if it should die in the birth, the vestiture of interest will depend on the fact of the greater or smaller portion of the body being delivered before death. In cases of natural labor, where the head is presented, the breast is to be considered, that is, the infant shall inherit if the whole breast be delivered while he yet discovers signs of life; but if the feet are first delivered, the navel is to be taken into consideration, and his right of inheritance will depend on so much of his body being protruded while he is yet alive.-B. M. L., pages 160, 161. * Sharífiyyah, page 141. IV. LECTURE on the supposition of a female, into the case of the male or into its measure (as the case may be one of disagreement or agreement,*) then examine the two products of those multiplications; and whichever of the two is the less, that shall be given to such an heir; (because his title to the less is determined;*) and the difference between the two (products) must be reserved from the allotment of that heir; (because there exists a doubt whether the party entitled to the difference is the child in the womb, or another than itself; consequently it must be reserved so long as the doubt is not removed.*) When the child appears, (and the doubt is removed,*) then if it be entitled to the whole of what has been reserved, it is well; but, if it be entitled to a part, let it take that part, and let the remainder be distributed among the (other) heirs, and let there be given to each of those heirs what was reserved from his or her allotment.†-Sirájiyyah, page 53. Example. Reason. Reason. As, when a man has left a daughter, both his parents, and a wife pregnant, then the case (is arranged) by twentyfour, on the supposition that the fœtus is a male (d), and by twenty-seven, on the supposition that it is a female (e).— Sirájiyyah, page 54. = (d.) Because, in this case, one-eighth, two-sixths and the rest occurred together; consequently, that one-eighth 3 went to the wife, and one-sixth 4 went to each of the parents, and the remainder =13 went to the daughter and the fœtus on the supposition of his being a male.— Sharífiyyah, page 141. (e.) Because, in the case in question, an eighth, twosixths and two-thirds occurred together on the above sup * Sharífiyyah, page 141. In arranging the case of pregnancy, the property must be divided into so many parcels as will allow of all the heirs' receiving their portions without a fraction whether the infant should prove to be a male or a female.B. M. L., page 162. IV. position; consequently, the case is (called) a Membariyah, LECTURE and (the root of the case) is increased from twenty-four to twenty-seven (vide Increase), out of which eight go to the parents, three to the wife or widow, and sixteen to the daughter and the foetus. And between the two numbers of the arrangement of the two cases (that is, between twentyfour and twenty-seven) there is an agreement in third, because it is denominated from three, which measures or exhausts them both.-Sharífyyah, page 141. Now, if the measure of one of the two (that is, a third which amounts to eight in the first case, and nine in the second case,*) is multiplied into the whole of the other, the product amounts to two hundred and sixteen (parts,) by which number the case will be settled. For, on the supposition of the embryo being of the male sex, the wife takes twenty-seven, and the two parents thirty-six each(ƒ); but on the supposition of its being female sex, the wife has twenty-four (g), and each of the parents thirty-two (h). So (out of two hundred and sixteen shares*,) twenty-four are given to the wife (i), and three (viz., the difference between the two portions,*) from her allotment are reserved (until the sex of the embryo is discovered;*) and from the allotment of each of the parents are reserved four shares, (that is, out of the above-mentioned number, thirty-six, the smaller portion, which is thirty-two, is given to each of them, and the difference between the two shares is reserved, the foetus being taken, in the case of there being a wife and both parents, to be of the male sex,*) and thirteen shares are given to the daughter; since the portion reserved in her right is the allotment of four sons, according to AbúHanífah (j), and when the sons are four, then her allotment is one share and four-ninths of a share (k) out of four and twenty (the root of the case on the supposition of a male; and this portion is*) multiplied into nine (which is the measure of the number of the arrangement come to on the supposition of the fœtus being a female*), and that (ie., the product of this multiplication) amounts to thirteen shares, which are hers (out of two hundred and sixteen,*) and the residue, which amounts to one hundred and fifteen (shares), is reserved.-Sirájyyah, page 54. * Sharífiyyah, page 141. Reason. (f) Because, out of twenty-four, which form the root of the case on the supposition of male sex, as already known to you, the portion of the wife is three, and when you multiply it into nine, the measure of twenty-seven (the divisor on the supposition of the female sex,) the product is twenty-seven; and the allotment of each of the parents is four on the supposition of male sex: now if we multiply it into the said measure, the product is thirty-six.—Sharífiyyah page 142. Reason. (g.) Because out of twenty-seven, the divisor, on the supposition of the female sex, was also three; now if this is multiplied into eight, the measure of the divisor (24) on the supposition of a male, the product is twenty-four.Ibid. Reason. Reason. Reason. Reason. Reason. (h.) Because, out of the divisor of the case of (the fœtus being) a female, the share of each of them was also four; now if we multiply this into eight, the measure of the divisor in the case of a male, the product is thirty-two.Ibid. (i.) Because, that is her smallest allotment on the supposition of the fœtus being a male as well as a female.—Ibid. (j) Because, according to his doctrine, this is her smallest allotment on the supposition in question, and not on the supposition of four daughters.-Sharífiyyah, page 142. (k.) Because, when, out of the residue, two shares are given to each of the sons and one share to the daughter, there remain four shares, then another share short of oneninth goes to each of the sons: thus the daughter gets one entire share and four-ninths of a share. Sharífiyyah, page 143. And if the widow bring forth one daughter, or more, then all of what was reserved (goes) to the daughters (7.)Sirájiyyah, page 54. (1.) Because, (here) the embryo is considered a female with regard to the wife, and both parents; and a share is given to each of them in proportion to what is receivable by them on consideration of the embryo being a female: and when in consideration of female sex they have received their full allotments out of what remained after (the allot |