LECTURE halves, and one-third occur together,-as (when) a husband, VI. a sister by the same father and mother, and two sisters by the same mother only (are left by a woman at her death). It is increased to nine by (the addition of) one-half of it, where the portions occurring together are one-half, and twothirds and one-third,-as (in the case of the survival of) a husband, two sisters by the same father and mother, and two sisters by the same mother only; or where two-halves, one-third and one-sixth occur together,-as (in the case of) a husband, a sister by the same father and mother, two sisters by the same mother only, and a mother (being left by a woman). It is increased to ten by (the addition of) two-thirds of it where the portions occurring together are one-half, two-thirds, one-third, and one-sixth,-as (when) a husband, two sisters by the same father and mother, two sisters by the same father only, and a mother (survived a deceased woman). This (last) case is named 'Shuraihiyah;' since Shuraih decided a case in which he allotted three shares to a husband out of ten, and the husband complained throughout the town, asking the people "a woman left a husband, and not a son, and son's son, what then is the portion of the husband?" And they said: "half." He then said, "Shuraih has allotted to me neither half nor a third." This news reached him (Shuraih), and he summoned the man, and reprimanding him, said: "I have learned this precept (decision) from the just and upright Imám," by which he meant Umar.-Sharifiyyah, page 57. Principle. CXVII. But twelve is raised up to seventeen by odd, and not by even, numbers (b).*—Sirájiyyah, page 24. ANNOTATIONS. cxvii. Twelve is increased or raised three times up to seventeen by odd, not by even, numbers: It is increased to thirteen, as (in the case of there being) a widow, two whole sisters, and a mother; to fifteen, as (in the case of there being) those persons and a brother by the same mother only; and to seventeen, as (in the case of there being) the said persons and another brother by the same mother only.-Durr-ulMukhtar, page 868. *Where twelve is the number, and it does not suit, it may be increased to thirteen, fifteen or seventeen.-Macn. M. L., Chap. I, Sect. iv, Princ. 68. VI. (b.) That is, it is raised to thirteen by the addition of LECture half of a sixth part of it, where (the shares which) occur together (are) a fourth, two-thirds, and one-sixth,-as (in the Explanacase of) a widow, and two sisters by the same father and tion, &c. a mother. It is raised to fifteen by the addition of a fourth part of it, where a fourth, two-thirds and a third occur together, as (in the case of) a widow, two sisters by the same father and mother, and two sisters by the same mother only; or where a fourth, two-thirds and two-sixths occur together, as (in the case of) a widow, two sisters by the same father and mother, a sister by the same mother only, and a mother; and it is increased to seventeen by the addition of a fourth and sixth part of it, where a fourth, two-thirds, one-third and one-sixth occur together,-as (in the case of) a widow, two sisters by the same father and mother, two sisters by the same mother only, and a mother (surviving the deceased).-Sharífiyyah, page 58. CXVIII. And twenty-four is raised to twenty- Principle. seven by one increase only, -as in the Membariyyah (c) case, (in which an eighth, two-thirds, and two-sixths occurred together, and*) in which a wife, two daughters and both parents (were left by a man).†-Sirájiyyah, page 24. (c.) It is called 'Membariyyah,' because a question was Explanaput to Alí when he was on the pulpit (membar) at Kúfah, tion. and he answered it extempore, upon which the person who put the question said in a sarcastic manner, "is not an eighth part for the wife?" To this he replied, "the eighth has become (is converted into) ninth," and resumed the preaching. The people became astonished at his learning.-Sharífiyyah, page 58. The authority for limiting the increase to what is above mentioned is based upon the grounds found by inquiry into the cases where different shares or rights occurred together. Sharífiyyah, page 58. * Sharífiyyah, page 58. Where twenty-four is the number, and it does not suit, it may be increased to twenty-seven.-Macn, M. L., Chap. I, Sect. iv, Princ. 68. LECTURE Of Return. * CXIX. The Return is the converse of the Increase; since by the latter, the portion of the Principle sharers are decreased and the root of the case is increased;† whereas by Return the shares are increased and the root of the case is decreased, or, in other words, in an increased case, the shares exceed the root of the case, while in that of Return, the root of the case exceeds the quantum of the shares.-Sharífiyyah, page 77. Principle. Principle. CXX. What remains over and above the shares of those entitled to them, when there is no legal claimant thereof (out of the residuaries‡), the same is returned to the sharers according to their rights, except to the husband or wife (d).§ "This (says the author of the Sirájiyyah,) is the opinion of all the Prophet's Companions, and our masters have adopted this (doctrine)."- Vide Sirájiyyah, page 32. CXXI. All persons to whom there may be a return made are thus seven in number,-the mother, the ANNOTATIONS. cxix. The Return is the converse of the Increase. If there is a surplus above the shares, and there is no residuary heir, then that surplus is returned to the sharers in proportion to their shares: excepting, however, the husband or wife, to whom there is no return. This is the opinion of all, in. consequence of there being violence (insecurity, or irregularity) in the public treasury.-Durr-ul-Mukhtár, page 868. See, however, pages 233 & 234, and the following remarks by the Commentator of the Durr-ul-Mukhtár itself:-" But Usmán says, that it will return to them (i. e., husband and wife) also; and I say, that it is laid down in the Ashbáh,' that in our time the surplus is returned to them on account of irregularity or insecurity in the Public treasury."-Durrul-Mukhtár, page 868. ་ * Sirájiyyah, page 32. Durr-ul-Mukhtár, page 868. † See ante, page 228 et seq. Sharífiyyah, page 77. § See ante, page 91, and post, pages 233 & 234. VI. grandmother, the daughter, son's daughter, full sister, LECTURE half sister by the father, or half brother or sister by the mother (d); and a return may take place to one, two, or three classes of sharers, but not to more.Fatáwá Alamgírí, vol. vi, page 651.-B. Dig., page 715. Zayid, the son of Sábit (or Thábit), however, says, "the surplus (does not revert to the sharers, but*) goes to the Public treasury, and to this opinion have assented Urwah and Zahurí, as well as Málik and Sháfií."†-Sirájiyyah, page 32. (d.) The above was determined by the ancient lawyers, Remarks. namely, by some of the Prophet's companions and their followers, as well as by the Mujtahid† Imáms, who followed them in the age when there was no irregularity in the Public treasury (Bayit-ul-mál), nay it was secure from violence and loss. But many of the modern lawyers eminent in learning, seeing that there was injustice done by the rulers and their officers in not applying the (deposited) wealth to the proper objects, have decided that return should be made also to husband and wife. The principal of those modern lawyers are Mouláná Zayn-ul-Abidín, Ibráhím Bin Najúm, an Egyptian, who in the (Chapter of Inheritance, contained in the second part of his work, entitled) The Ashbah-o-Nazáyïr' (or Doubts and Precedents), has cited the dicta of Zaylayí, part of which is that what remains after (giving) the share to one of the married couple, will return or revert to him or to her." And it is laid down in the Tahtáví that, according to Usmán, return is made also to a husband or wife. Accordingly, Ibnu-Fannárí says: "It has been declared that in our time the Fatwá or decision is as the above, by reason of there being violence practised in the Public treasury. It is also laid down in the Zakhírah that the surplus remaining after allotment of the share of a husband or wife, will not be placed in the public treasury, but given to him or to her, because, of the relatives for a special cause, he or she is the nearest of all others." Imám Abdul-Wahid, a martyr, has, in his Book on Inheritance, also * Sharífiyyah, page 77. See the Introductory Lecture, pages 9, 10, 29, 30 & 47. LECTURE laid down that the surplus of the share of a husband or VI. wife is not to be placed in the public treasury, but to be given to him or to her, since he or she is the nearest of the relatives (for a special cause).' The above is cited also in the Hammadiyah. What is laid down by Ahmad the son of Yahiyah the son of Saád Taftazání is, therefore, prevalent in the present age.* It is as follows: Principle. Principle. CXXII. Most of the learned have decided that return is to be made to (either of) them, (viz., husband and wife), where there is no near relative other than he or she.*-See ante, page 91. Return is made in four cases:— CXXIII. The first of them is, when there is in the case but one sort of kinsmen, to whom return must be made, and none of those (i. e., neither husband nor wife) who is not entitled to a return, then settle the case according to the number of their persons.† (e)—Sirájiyyah, page 32. ANNOTATIONS. cxxiii. The cases of return are in four divisions:-The first is composed of one class of persons to whom return is made; as two daughters, or two sisters, or two female ancestors: in this, the division must be made at once according to the number of their persons in order to avoid the lengthy process.-Durr-ul-Mukhtar, page 868. *The above is an abstract of the note by Abú-ul-Kásim Abd-ul-Hakim contained at pages 6-9 of Moulaví Kabir-ud-din's edition of the Sirájiyyah and Sharífiyyah, q. v. Hence, at present, the settled law is that return is made to husband or wife, not when there is any sharer by consanguinity, but when there is none such. † It takes place in four cases : First, where there is only one class of sharers unassociated with those not entitled to claim the return, as in the instance of two daughters, or two sisters; in which case, the surplus must be made into as many shares as there are sharers, and distributed among them equally.-Macn. Princ., Chap. I, Sect. viii, Princ. 92. |