VIII.

CLXXVII. Exclusion is of two kinds :-1st, Im- LECTURE perfect, which is an exclusion from a (larger*) share, and an admission to a (smaller) share (a). 2nd, Principle. Perfect or total exclusion, by which one is at once excluded from inheritance or deprived of the whole thereof (b).-Sirájiyyah, page 20.

tion.

(a.) The imperfect or partial exclusion takes place in Illustrarespect of five persons, (viz.,) the husband, wife, mother, son's daughter, and the sister by the same father only.† Because the husband is driven (i.e., his share is reduced)

ANNOTATIONS.

clxxvii. Imperfect exclusion takes place in respect of five personsthe mother, son's daughter, sister by the same father only, husband and wife.-Durr-ul-Mukhtár, page 865.

Six heirs are not entirely excluded in any case, viz., the father, the mother, the son,‡ the daughter, and the husband and wife. And there is a set (of heirs) which inherits in one case and is entirely excluded in another case: they are exclusive of the six (aforesaid,) whether they be residuaries or entitled to shares.—Ibid, page 865.

Exclusion is of two kinds-partial and total; and partial exclusion is a reduction from one share to another. As regards total exclusion, there are six persons who are not subject to it. These are the father, the son, the husband, the mother, the daughter, and the wife.— Fatáwá Alamgírí, vol. vi, page 630.-B. Dig., page 695.

Exclusion is either entire or partial. By entire exclusion is meant, the total privation of right to inherit. By partial exclusion is meant a diminution of the portion to which the heir would otherwise be entitled. Entire exclusion is brought about by some of the personal disqualification,§ or by the intervention of an heir, in default of whom a claimant would have been entitled to take, but by reason of whose intervention he has no right of inheritance.-Macn. M. L., Chap. I, Sect. vi, Princ. 84.

* Sharífiyyah, page 48.

† Sirájiyyah, page 21.

In the original hereof, the word' son' seems to have been omitted by mistake.

§ Slavery, homicide, difference of religion, and difference of allegiance exclude from inheritance.-Macn. M. L., Chap. I, Princ. 6.

LECTURE from a moiety to a fourth part; and the wife from a fourth VIIL to an eighth by reason of the existence of a child or son's child; and the mother is driven from a third to a sixth by the deceased's child or his son's child, and by two brothers or sisters or one brother and one sister (of the deceased); and a son's daughter (existing) with a begotten daughter (of the deceased) is driven from a moiety to a sixth part, completing two-thirds; and the sister by the father only (existing) with a sister by the same father and mother (is driven) from a moiety to a sixth.-Sharífiyyah, page 48.

Explanation.

Principle.

same

(b.) There are two sets of heirs-one of which sets is not entirely excluded in any case. This comprises six persons, (viz.,) the son, the father, the husband, the daughter, the mother and wife. The other set of heirs (who are other than the above six, and who, whether residuaries or sharers*), inherit in one case, and is entirely excluded in another case.-Sirájiyyah, page 20.

CLXXVIII. The entire exclusion is grounded upon two principles: The one of which is that-whoever is related to the deceased through any person

ANNOTATIONS.

clxxviii. This is grounded on two principles: The one of which is that a person who is related (to the deceased) through another does not inherit with him,-as for instance the son's son does not inherit with the son. Except the mother's children who inherit with her by reason of her not taking the whole inheritance. The second of the two (principles) is, that the nearest excludes those who are not so, but distant, for the reason already stated; that is, the nearest is preferred; then the next in the order of proximity, be they entitled for one and the same cause, or not.-Durr-ul-Mukhtár, page 865.

As regards all others, besides these, the nearer excludes the more remote; and persons who are related through others do not inherit with them, except only the children of the mother, that is half brothers or sisters on her side, who are not excluded by her.-Fatáwá Alamgírí, vol. vi, page 630.-B. Dig., page 695.

* Sharífiyyah, page 48.

shall not inherit while that person is living (c) except the mother's children who inherit with her (notwithstanding they are related through her to the deceased*), because she has no title to the whole of inheritance. The other is that the nearest of blood inherits first, then the nearest after him, as

explained in (the Chapter on) Residuaries (d).— Sirájiyyah, page 21.

LECTURE

VIII.

(c.) For instance, the son's son does not inherit with Example. the son.-Sharífiyyah, page 28.

The ground for this principle is, that if the person through whom one is related (to the deceased,) be entitled to the whole inheritance, the person so related (to the deceased) does not inherit while that person is living, whether their causes of inheritance be one and the same,-as in the instance of a father (existing) with the grandfather, or a son with a son's son; or (whether the causes) be not the same, as in the case of a father (existing) with brothers or sisters for when the person through whom another is related takes the whole property, nothing at all remains for the person related (through him); but if the person through whom another is related be not entitled to the whole, then, if the cause of (their) inheritance be one and the same, the case would be the same, (that is, nothing would remain for the person related, and he would not inherit while that person be living.) as in the instance of a mother and mother's mother; because if the person through whom another is related take his or her portion on the ground of such cause, nothing would remain for the person related out of the portion to which he or she would be entitled on the ground of such cause, and no other portion would remain for him or her; consequently, he or she would be entirely excluded; but if the cause of (their) inheritance be not one and the same, as in the instance of the mother and her children, in that case, the person through. whom another is related would take his or her portion with reference to the cause of his or her (heritable right,) and the person related would take the other portion in virtue

*Sharifiyyah, page 48.

VIII.

LECTURE of the other cause (of heritable right); then there would be no exclusion. Some, however, say: "Is not the mother entitled to the whole inheritance when she stands alone without sharers and residuaries?" We answer, "this right is not founded on one and the same cause, since she became entitled to the inheritance partly as a sharer and partly by return." The meaning therefore is, that right or title to the whole inheritance should be for one and the same cause, as in the case of residuaries.-Sharífiyyah, page 49.

Explanation.

Principle.

Precedents.

(d.) As is explained in (the Chapter on) Residuaries ;— that is, persons nearest in the degree of affinity are preferred; consequently, the nearest of them entirely excludes the distant, no matter whether the cause of their heritable right be the same or not. This (rule) is also applicable to persons other than those (mentioned), provided the cause is one and the same, as in the case of the grandmothers (existing) with the mother, and son's daughters (existing) with two begotten daughters, and the sisters by the same father only (existing) with two sisters of the whole blood.-Sharífiyyah, page 49.

Sisters are excluded by sons and daughters. Grandmothers are excluded by a mother. A sister excludes the children of her deceased sister. A daughter excludes the children of a deceased daughter. Sons and daughters of a whole brother exclude half brothers and half sisters.-Macnaghten's Precedents of Muhammadan Law, Chap. I, Cases x and xxiii-xxvi.

CLXXIX. The heir of a person who, if he survived the deceased, would have succeeded to the latter, is excluded by one who is nearer in point of relationship.

Mussummat Ekin Bibee v. Meer Ali and others.-Sel. S. D. A. Rep., vol. i, page 152.

Abdoor Ruhman, son of Morad Khan and others.-Ibid, vol. iii, page 403 (New Ed., page 538).

Doe dem Gholam Abbas v. Shaikh Ameer. The same v. Tamboo Bibee.-East's Notes, No. cxiii.

VIII.

CLXXX. A person excluded entirely (for dis- LECTURE qualification), as an infidel, a murderer, or a slave, does not (at all) exclude any one (a). But a person Principle. excluded by another may, as the Learned agree, exclude others, perfectly as well as imperfectly (b).Sirájiyyah, page 22.-Sharifiyyah, page 50.

(a.) It is related that a woman, who was a Musalmán, Precedent. died, leaving her husband, also a Musalmán, and two brothers by the same mother, who also were Musalmáns, and a son, who was an infidel. In this case it was decided by Alí and Zayid, the son of Sábit, that half devolved on the widower, one-third on the brothers, and the rest on the residuaries (the infidel son being considered as dead).Sharífiyyah, page 50.

(b.) For instance, if there be two or more brothers or sisters, on whichever side they may be, (that is, by both parents or by one of them,) yet they drive (that is, reduce the share of) the mother from a third to a sixth. Such is also the case with respect to perfect exclusion, for the

ANNOTATIONS.

clxxx. In our opinion, a person excluded, as an infidel or murderer, does not at all exclude (another person). But the person excluded by another, does, as all the Learned agree, exclude others ;-as the father's mother is excluded by the father, but she excludes the mother of the mother's mother; so are brothers and sisters, for they are entirely excluded by the father, but (nevertheless) they reduce the share of the mother from a third to a sixth, which is (a case of) imperfect or partial exclusion.-Durr-ul-Mukhtár, page 865.

One who is deprived of any interest in the estate, that is, one incapable of inheriting as an infidel, a homicide, or a slave, has no effect in excluding others, either partially or totally. But one who is only excluded may exclude others by general agreement; as for instance, two or more brothers or sisters, full or half, on whatever side, who do not inherit when there is a father, but reduce a mother's share from a third to a sixth.-Fatáwá Alamgírí, vol. vi, page 630.-B. Dig., page 695.

Those who are entirely excluded by reason of personal disqualification do not exclude other heirs, either entirely or partially; but who are excluded by reason of some intervening heir, do, in some instances partially exclude others.-Macn. M. L., Chap. I, Sect. vi, Princ. 85.