We find that this decision is in accordance with the law as recognized from a very early period. In a case which occurred as early as the year 1811 (reported in I Select Reports, page 350) the right of preemption was claimed and established by a shareholder in respect of a share in an entire pergunnah. In another case which occurred two years after (reported in Volume II, Select Reports, page 85) the right was applied to a whole mouzah.

Again, in 1840 (VI Select Reports, page 277) we find it applied to a whole village, which, from the price, was evidently a considerable one. In 1857 (Sudder Decisions, page 454) it was applied to a talook; and again in 1858 (Sudder Decisions, page 1754) to a village.

It is true that in none of these cases was any question raised as to the extent of the right; but the absolute silence of the reports upon any such limit is now contended for, notwithstanding the numberless instances in which the right of preemption must have been claimed by a partner in respect of a share in a large estate, strongly shows that for a very long period no such limitation has been supposed to exist.

It was urged upon us that the two lines of decision as to a neighbour and a partner could not be reconciled; that the right was given by the Arabic texts to both in the same terms; and that if the right was limited in the one case it ought also to be so in the other, the only respect in which the three classes of claimants differ being the right of priority. Now, if we are to look exclusively at the language of the law as it appears in the Hidayah there is certainly ground for this contention. But we think that we should not be justified, merely for the sake of logical consistency, in overruling what appears to have been the law consistently applied in this Court for a great number of years, and never until very recently questioned.

This view of the Mahomedan law of preemption in the case of partners has, no doubt, been acted upon in a great number of cases and is in conformity with modern usage; and to disturb it now would be to disturb a great many titles. Moreover, the distinction between the case of a neighbour and the case of a partner does undoubtedly proceed upon a very sound principle, viz., that the right should be co-extensive with the inconvenience which it is intended to avoid.

The result is that we answer the question in Special Appeals Nos. 1663 and 1660 of 1869 in the negative, and the question in Review No. 298 of 1869, in Special Appeal No. 158 of 1869 in the affirmative.— Weekly Reporter, Vol. XIV, Full Bench Rulings, page 1.

INDEX.

Page

ABU HANIFAH-

the founder of the first division or sub-sect of the Sunnis

27-29

of known descent has no right to inherit from his or her adoptive

civilly dead when judicially determined to have joined the hostile
country

271

acquisitions made by a male-while in the faith, go to his
Musalman heirs

271

APOSTATE FROM ISLÁM-continued.

those made since his apostacy are placed in the public treasury
becoming again a Musalmán previous to the kází's determination,—
takes back his property if it was not already placed in the
public treasury, or alienated by his heir

Page

272

273

acquisitions made by-after his arrival in the hostile country
are confiscated

273

acquisitions made by a female-before or after her apostacy go
to her Musalmán heirs.

male or female, does not inherit from any person, except when the
people of a whole district become apostates

ARRANGEMENT-

the seven principles or rules of

ASSETS-

distribution of

273

274

207-220

220-224, 256-263

a residuary heir in default of lineal ascendants and descend-

507

16-18

18

34

56

excluded by the deceased's father, paternal grandfather, son,
and son's son how low soever.

108

paternal:-

a residuary heir in defect of a full brother

128

Page

BROTHER-continued.

paternal:-continued.

excluded by the deceased's father, paternal grandfather, son,
and son's son how low soever; also by the whole brother and
even by the whole sister when she is rendered a residuary
by the deceased's daughter or son's daughter.

maternal:-

108, 109

takes a sixth when alone, and a third with another brother or
brothers, sister or sisters, of the same description
excluded by the deceased's father, paternal grandfather, child
or son's child how low soever

BURIAL AND FUNERAL CEREMONY-

to be performed first of all out of the deceased's assets without
superfluity of expense, yet without deficiency

CAPTIVES-

if not apostatized, the rule concerning them is like the rule con-
cerning other Musalmáns with regard to inheritance

97

97, 98

86

197

if apostatized, the rule concerning them is the same as concerning
an apostate

197

if not known to be alive or dead, the rule concerning them is that
concerning a missing person

CHILD-

follows the better religion of either of its parents

in the womb entitled to inherit when born alive
what share should be reserved for it
still-born does not inherit

198

born of a female slave inherits from her master if acknowledged by
him if there be any other-subsequently born of her, such
child inherits from him without further acknowledgment
born of a free woman not known to have been married, inherits, if
acknowledged by its father, or even without his acknowledgment,
but upon the evidence, though circumstantial, of its being his
issue, as well as upon the presumption of marriage between its
parents

by whom to be supported and by whom to be taken care of.
of curse or imprecation

COMMENTARIES

123

23