LECTURE VI.

ON INCREASE AND RETURN.

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WHERE upon dividing a property according to the first Prelimiway already shown, that is, by six, twelve or twenty-four nary re(as the case may be,) the fixed share of a whole class, or, Increase. of a person, who (is not an individual of a class, but) stands singly as a separate claimant, falls short, or becomes smaller than what it should be, then the divisor is increased so that all may get their shares (though proportionately diminished). For instance, in the case of a woman leaving her husband, both parents, and a daughter, the estate of the deceased should, according to principle xcii, be divided into twelve parts,* out of which the husband having taken his fourth, or three, and the parents one sixth, or two, each, there remain only five shares for the daughter instead of six or half, which (in this case) is her fixed share, the number twelve is therefore increased to thirteen, whereby all the claimants are enabled to get proportionately their respective shares; that is to say, the husband gets his four parts, the mother her two, the father his two, and the daughter her six parts or half, of the estate.

The difference between the Arrangement and the Increase is this, that recourse is had to the former where the number of the divisor is adequate to the shares of all the classes in the case,‡ but the shares allotted to each class do not

*See ante, page 202 et seq.

† See ante, pages 207, 208 et seq.

The number of each of the divisors (six, twelve, and twenty-four,) is fixed in proportion to the shares occurring in every one of the cases in which recourse is to be had to the same, which therefore is always adequate to the shares occurring in any of such cases; for instance, where a fourth (which is

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LECTURE quadrate with the shares of the individuals of that class; whereas in the latter, the number of the divisor itself is not adequate to the portions of a particular class, or of a particular person who stands alone as a separate claimant. Although recourse is had to increasing the number of a divisor in cases like the above, yet any number cannot be raised to any, but to the particular number or numbers which the law has fixed upon inquiry and in consideration of the cases wherein different shares and rights occurred together. Thus, in consideration of the cases that have occurred or may possibly occur, the divisor six is increased or raised to seven, eight, nine, or ten (as a particular case may require,) but not to any number higher than ten; the divisor twelve is raised to thirteen, fifteen or seventeen, and to no more; and the divisor twenty-four is raised to twenty-seven, where a case like that of the membariyah* may occur: according to Ibnu Masúd, however, it may be raised also to thirty-one; but his opinion is not followed in practice.

Preliminary remarks.

Where there are sharers and no residuaries, and there is a surplus after allotment of the fixed shares to the sharers, there the surplus reverts to those of them who are heirs not for a special cause (as the husband or wife), but by On Return consanguinity. This reverting of the surplus is called

and

Increase.

Return.' The Return is said to be converse of the Increase; because although the process of increasing the divisor or the root of the case to a certain extent is denominated The Increase,' yet in reality it is decreasing the portion which each party was entitled to have from the divisor. For instance, in the case of there being a husband, two daughters and a mother, the divisor is twelve, or the property is divided into twelve parts, of which the husband having taken his fourth or three, the mother her sixth or two, there remain only seven for the two daughters instead of eight or two-thirds (of twelve,) to which by law

one of the first series of shares) is mixed with all or any of the shares of the second series, (viz., two-thirds, one-third, and one-sixth,) there the estate is to be divided by twelve, and twelve is adequate to the portions of classes of the heirs occurring in any of such case, though the same may not, (in some or several of those cases), quadrate with the shares of the individuals of each class.

Thus

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they are entitled. To satisfy, therefore, all the claimants, LECTURE twelve is raised to thirteen, of which eight go to the daughters, three to the widower, and two to the mother. the daughters instead of getting eight of twelve, get eight of thirteen, and the husband and mother instead of three and two of twelve get the same of thirteen, each suffering a partial or trifling loss as regards his or her portion of the original divisor (twelve,) though not of the estate itself, whereas in the case of Return, the claimants entitled thereto get, in excess of their fixed shares, portions of the surplus also in proportion to their respective rights.

Return is made in four cases: First,-where there is only one class of sharers, unassociated with a sharer (that is, husband, or wife) who is not entitled to a return; Second,where there are only two or three classes of sharers unassociated with a sharer not entitled to a return; Third, -where there is only one class of sharers, associated with a sharer not entitled to the return; and Fourth,-where there are only two classes of sharers associated with a sharer not entitled to claim the return. So the third and fourth cases of return differ respectively from the first and second only in having a claimant not entitled to a return, as the latter differ from the former in not having any such claimant.

In the cases of Return, the general mode of distributing an estate among its claimants is, that, first the fixed shares are allotted to them, and then the surplus is given to those of them who are entitled to a return: thus in the instance

*With respect to the second case, the principle is thus laid down in Macnaghten's Principles of Muhammadan Law: "Secondly, where there are two or more classes of sharers unassociated with those not entitled to claim a return." But the Muhammadan lawyers have, in this case, limited the classes of sharers to three and to no more, as will be known by referring to the Principle No. cxxiv. Again, with respect to the fourth case, the learned Compiler says: "Fourthly, where there are two or more classes of sharers, associated with those not entitled to claim the return;" but here the classes of sharers have been limited to two only. Thus the Durr-ul-Mukhtár: "The fourth is where there is with the second case that is with two classes and no more (as ascertained by enquiry) of the persons entitled to a return, &c. " Again in another part of the same authority it is laid down that by the second (case) is intended some (i. e., two, and not all the three classes) comprised therein. Sharif in his Commentary on the Sirájiyyah says also to the same effect. Thus we are warranted in saying that the term 'more' used by the said Compiler in the second and fourth rules is not quite correct.

LECTURE of there being a husband and a daughter, the estate must VI. be divided into four to give one-fourth to the husband (who, in this case is not entitled to a return,) and after he has taken one of four, or a fourth, which is his legal share, two (or half of the estate) will go to the daughter as her fixed share, then the remaining one, or one-fourth, will return or revert to her, she being entitled also to the same. And where there occur sharers entitled to shares of both series, there the estate may be divided in the first instance either by six, twelve, or twenty-four as the case may require; and after giving the share of the person not entitled to a return, the fixed shares of the classes or individuals entitled to return may be first given, and then the surplus, if any, may be distributed among them in proportion to their respective rights. But as there are cases in which the fixed shares as well as the surplus cannot be distributed without a fraction, the Muhammadan lawyers have laid down certain rules or principles to which recourse should be had in arranging the cases of return.

Principle.

Principle.

CXIV. The Increase (Oul) is the adding of something to the divisor out of its own portions: this takes place when a divisor falls short of the shares (required).*

CXV. The divisors are seven in number, namely, two, three, four and eight; six, twelve and twentyfour, of which only the last three are increased.Vide Sirájiyyah, page 24.

ANNOTATIONS.

cxiv. Increase (oul) is contrary to return, as will be presently mentioned. It is the adding of a share or shares when the divisor falls short of the shares (required,) so that there is a decrease or loss to all the parties

*The above is the true translation of its original, which runs thus:"Al-oulu an yuzáda alá al makhirji shayun min ajazáyhi, izá záká al makhriju an farzin ;” but this has been differently rendered by Sir William Jones: the same is as follows: "Oul or increase is, when some fraction remains above the regular divisor, or when the divisor is too small to admit one share.”— Vide Sirájiyyah, page 32.

The increase is where there is a certain number of legal sharers, each of whom is entitled to a specific portion, and it is found, on a distribution of

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CXVI. The divisor six is increased up to ten by LECTURE the addition of odd as well as even numbers (a).* Vide Sirájiyyah, page 24.

Principle.

(a.) That is, it is increased to seven by (the addition Explanaof) a sixth part of it in the case where the shares occur- tion, &c. ring together are a half and two-thirds,-as (in the case of) a woman leaving her husband, two sisters by the same father and mother; or (in the case of) two halves and a sixth part occurring together,—as in the case of a husband, a sister by the same father and mother, a sister by the same mother only, or a sister by the same father only (surviving a deceased woman). It is increased to eight by (the addition of) a third part of it, in the case where the portions occurring together are one-half, two-thirds, and one-sixth part,-as (on the survival of) a husband, two sisters of the whole blood, and a mother; or where two

ANNOTATIONS.

in proportion to their shares, like the proportional decrease or loss to the creditors in proportion to the assets. Umar was the first who laid down the principle of Increase.-Durr-ul-Mukhtár, page 877.

To a case of this kind the rule of the oul, or increase, is applicable, according to the majority of the companions; and it consists in raising the shares of the property, to the numbers of the shares of the sharers, by which means the deficiency is distributed over all the sharers in proportion to their respective shares.- Fatáwá Alamgírí, vol. vi, page 651. B. Dig., 713.

cxvi. The (divisor) six is increased to ten by the addition of four either by odd or even numbers. Thus it is increased to seven in the case of there being a husband and two whole sisters;-to eight, in the case of those persons and another;-to nine, in the case of those persons and a brother by the same mother only;-and to ten in the case of those persons and another brother by the same mother only (being left by a woman at her death).-Durr-ul-Mukhtár, page 868.

shares into which it is necessary to make the estate, that there is not a sufficient number to satisfy the just demands of all the claimants.-Macn. Princ., M. L., Chap. I, Sect. vii, Princ. 88.

It takes effect in three cases; either when the estate should be made into six shares, or when it should be made into twelve, or when it should be made into twenty-four.-Ibid, Princ. 89.

* Where six is the number of shares into which it is proper to distribute the estate, but that number does not suit to satisfy all the sharers without a fraction, it may be increased to seven, eight, nine or ten.-Macn. Princ., M. L., Princ. 67.