VII. LECTURE one shall inhabit the one house, and the other shall inhabit the other, it is valid; and the Kází may enforce it, according to the two disciples; and such is also the opinion of Hanífah, as mentioned in the Záhir-ur-Rawáyit-Hidayah, vol. iv, page 34. Principle. CLX. A partition concerning the rent of two houses is likewise lawful, according to the Záhir-urRawáyit, for the same reasons as have been assigned in the case of one house. If, however, one house yield a greater rent than the other, still the partners do not both share in the excess.-Hidayah, vol. iv, page 36. The reason of this distinction is that, in the case of two houses, when a partition of their rents is made, separation is the prevailing principle.—Ibid, page 36. If two partners make a partition of usufruct regarding an orchard of dates, or a garden containing trees, in this manner, that each shall take a part and cultivate it, and enjoy the fruits produced from it, or if they make a partition of usufruct regarding a herd of goats, in this manner, that each shall take a certain number, and feed them, and enjoy the milk produced by them, neither of these partitions of usufruct is valid. Because partition of usufruct regarding use, as well as partition of usufruct regarding service, is admitted only from necessity, as being unsubstantial, and, therefore, incapable of division; but, in the present instances, the fruit and milk, when once produced, are capable of division, being things which substantially exist, and, therefore, there is, in these instances, no necessity.-Hidáyah, vol. iv, page 38. LECTURE VIII. ON APOSTACY-IMPEDIMENTS TO SUCCESSION, AND— 6 THE lexicographical meaning of the Murtadd' (ren- Apostate dered by 'apostate') is one who turns away (from an object); defined. but in law it signifies a renouncer of the Muhammadan faith.' The essentiality of apostacy consists in the uttering of words against the (Muhammadan) religion, after embracing the (Muhammadan) faith, which is belief in Muhammad with respect to all that came down to him from Almighty God.-Durr-ul-Mukhtar, page 392. CLXI. When a male apostate has died (natur- Principle ally), or been killed, or passed into a hostile country of aposta ANNOTATIONS. clxi. When a male apostate is put to death, or dies naturally, or escapes to a foreign country, all that he had acquired while a Musalmán belongs to his heirs.*-Fatáwá Alamgírí, vol. vi, page 633.-Vide B. Dig., page 700. If he (the apostate) die, or be killed while an apostate, or be determined (by the Kází) to have gone into a hostile country, then his Musalmán heir, even though such heir be a wife, who has observed the abstinence (iddat), will inherit what was acquired by him (the apostate) at the time of his having been a Musalmán, after payment, however, of the debts incurred by him while a Musalmán; but what was acquired by him during apostacy, will be (taken as) a spoil, after payment of the debts which he had contracted while an apostate. The two lawyers, (Abú Yusuf and Muhammad,) say, that the property acquired during apostacy is also an inheritance.-Durr-ul-Mukhtár, page 392. * By Act XXI of 1850 of the Indian Legislature, it is declared, that"so much of any law or usage as inflicts on any person forfeiture of right or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the cy. LECTURE (dár-ul-harb), and the Judge (Kází) has determined VIII. his having gone into the hostile country, then what he had acquired at the time of his being a Musalmán goes to his heirs who are Musalmáns (a), but what he has earned since the time of his apostacy, is placed in the Public Treasury (Bayit-ul-mál), according to Abú Hanífah.-Sirájiyyah, page 58. Explanation. But according to the two lawyers (Abú Yusuf and Muhammad) both the acquisitions go to his Musalmán heir or heirs.-Ibid, page 58. (a.) Among these the wife is included, if she is a Musalmán, and her iddat is unexpired at the time of his death. But if her iddat has expired, or if her marriage was never consummated, she has no right to any share in his inheritance. She also loses her right if she apostatizes with him; though when a husband and wife apostatize together, her marriage still continues. If she should bear a child after their apostacy, and the husband should then die, the child would be entitled to a share in his inheritance, if the birth takes place within six months from the day of the husband's apostacy; but if the birth should take place at more than six months from the day of the apostacy, the child would have no right.-Fatáwá Alamgírí, vol. vi, page 633.B. Dig., page 700. communion of any religion, or being deprived of caste, shall cease to be enforced as law in all the courts of this country." This removes the disqualifications of the apostate himself; but his children, if brought up in his new faith, would be still excluded from the inheritance of their Musalmán relatives by the mere difference of religion-an objection that is left untouched by the Act; while apparently, there would be no objection to the relatives inheriting from the apostate or his children, for being no longer of the Musalmán religion, his or their succession could hardly be regulated by Muhammadan Law.-Note by Mr. Neil Baillie. In Syed Ziya-ood-deen v. Sheikh Lootf Alee, it has been actually determined by the late Sudder Dewanny Adawlut, that if by Muhammadan Law a Sunní could not inherit from a Shiáh, (a Sunní's becoming a Shiáh and vice-versâ being according to that law quasi apostacy), then under the provisions of Act XXI of 1850 (the clear purport whereof is, that religious exclusion shall not be permitted to check the ordinary current of the civil law of inheritance, and any law previously in force, which should be taken to interrupt the law of inheritance upon the ground of a change of religious faith, shall not at all be enforced) this rule of Muhammadan Law cannot be enforced, so as to impair the right of inheritance.-Sudder Dewanny Adawlut, Dec. for 1856, page 1092. According to Sháfií, however, both the acquisitions must LECTURE be entirely placed in the public treasury. - Sirájiyyah, page 58. VIII. CLXII. If, however, he again become a Musal- Principle. mán previously to the (Kází's) determination, then he will be treated as if he did not become an apostate; and if he returned to the Muhammadan faith after that (determination), when his property has been already with his heirs, then he will retake it either amicably or by law-suit; but he shall not take the property if it has been placed in the public treasury, by reason of its having (already) become a spoil. And if the property has been destroyed, or the heir (or successor) has alienated it relinquishing his own right, then he (the former) shall not have it, even though the property be in existence, because the judgment (of the Kází) is irrevocable.-Durr-ul-Mukhtár, page 392. The same author moreover says:-"An apostate's right to his estate is forfeited by way of suspense: afterwards, if he return to the Muhammadan faith, the estate will revert to him."-Ibid. CLXIII. What he gained after his arrival in Principle. the hostile country, is confiscated by general consent ;* because it was gained by him while he was a resident in a hostile country, and a Musalmán does not inherit from a resident of a hostile country.† CLXIV. All the property of a female apostate Principle. (whether it be acquired by her while she was a Musalmán, or during her apostacy, but previous to ANNOTATIONS. clxiv. When a female apostate dies, the right of her husband to take a share in her inheritance depends on the fact of her having apostatized * Sirájiyyah, page 58. VIII. LECTURE her going to a hostile country*) goes to her Musalmán heirs, without diversity of opinion.-Sirájiyyah, page 58. Principle. Principle. "Because," says Sharif, "according to our doctrine, a female apostate is never killed, but is imprisoned until she becomes a Musalmán, or departs this life."-Sharífiyyah, page 148. As regards the succession of apostates themselves,— CLXV. A male apostate does not inherit from any one-neither from a Musalmán, nor from an apostate like himself (c) ;—so also a female apostate shall not inherit from any one, except when the people of a whole district become apostates altogether; for then they inherit reciprocally (d).— Sirájiyyah, page 58. (c.) Inasmuch as an apostate has, by his apostacy, become a sinner, and, therefore, he is not entitled to any favor of the law, that is to inheritance; on the contrary, he deserves to be excluded with punishment, just as a murderer forfeits his right.-Sharífiyyah, page 148. (d.) Because (then) their district becomes a hostile country by reason of the rules of infidels being promulgated therein. Sharífiyyah, page 149. CLXVI. If a person before his becoming an apostate was entitled to the inheritance of a relative, his subsequent apostacy does not deprive him of his ANNOTATIONS. during health, or during sickness. If the apostacy took place when she was in health, he has no right to anything. If it took place when she was sick, and she has died when her iddat was still unexpired, though by analogy she was no evader, and he could, therefore, have no right to her inheritance, yet on a liberal construction she is accounted to be such, and he is allowed to participate.-Fatáwá Alamgírí, vol. vi, page 633.—B. Dig., page 701. clxv. A female apostate, like a male apostate, cannot inherit from any one, because she has no religion.—Ibid. *Sharifiyyah, page 58 |