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II.

LECTURE (the property of the deceased goes to) the Bayit-ulmál or Public Treasury (r).

(j). In the Kurán, in the Traditions of the Prophet, or by the assent of the Learned, as stated by Sarakhsí (who says): "The persons entitled to shares take before the residuaries on the ground of the Prophet's dictum: "Give shares to those who are entitled to the same; and what remains after giving the shares, is for those males who are the (best, i. e., the) nearest (by relation or for special cause).-Sharífiyyah, page 5.

These (i. e., the sharers) are twelve: ten by relation, of whom three are male, and seven female, and two for special cause, (viz.,) the husband and wife.-Durr-ul-Mukhtár, page 862.

(k). Next (the inheritance goes) to the person who is the enfranchiser of a slave, though the enfranchiser be a female : such person is a residuary for special cause. Then (to) his or her male residuaries; because the Valá* (the relation or right arising out of emancipation) does not devolve on a woman, except when she herself has manumitted a slave.— Durr-ul-Mukhtár, page 862.

That is, in default of the enfranchiser of a slave they begin with his or her male residuaries. Here the residuaries are restricted to the males, because there shall be hereafter cited (to that effect) a dictum of the Prophet. Sharífiyyah, page 6. (See Residuaries.)

(1). "It should not be objected," says Sháríf, "that the person who is entitled to a share and not to the residue, must not take the whole (in the event of there being no residuary heir); inasmuch as, he (the sharer) is entitled (to the whole not as residue, but) partly as share and partly as return."-Ibid.

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*In a note to his translation of the Hidayah, Mr. Hamilton observes, that 'there is no single word in our language fully expressive of this term. The shortest definition of it is, the relation between the master (or patron) and his freedman.' But even this does not express the whole meaning. Had he proceeded to state "and the relation between two persons who had made a reciprocal testamentary contract," the definition might have been more complete.-Note by Sir William Macnaghten.

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(m). That is, the proportions of their respective shares LECTURE are fixed according to their relationship (to the deceased), and the remainder returns to them in accordance therewith.-Sharífiyyah, page 6.

Because their relation subsists even after they had taken their shares it does not, however, return to those who are entitled to shares for special cause; whence it does not revert to the widower, or widow*-Ibid.

(n). That is, when the inheritance cannot return or revert owing to the non-existence of the persons entitled to shares by (right of) consanguinity, they begin with the distant kindred, who are neither residuaries nor sharers, but (mere) relatives: the rights of these are postponed to the return made to the persons entitled to shares by right of consanguinity, because the latter are the nearest relatives of the deceased, and, in rank too, superior to the former.fIbid., page 9.

(o). That is, in default of those (already) mentioned, the whole of the inheritance goes to the successor by contract, unless there be a widower or widow, but if one (of them) be found (living), then the residue devolves upon him or her such is the doctrine laid down in the " Faráïz-i Usmániyah" (a treatise on Inheritance by Usmán).Sharífiyyah, page 9.

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*The Commentator says:-" It does not return to those who are entitled to shares for special cause, &c., &c." It should, however, be known that it has been laid down by the modern lawyers that in default of any other sharer, the residue returns also to the widow or widower.' This much is elsewhere affirmed by the commentator himself on the authority of the Prophet's companion Usmán. See the last paragraph of the body; see also the Section treating of the Return.

But, if there be sharers by consanguinity and no residuaries, a further portion of the inheritance reverts to them, though never to the widower or widow, while any heirs by blood are alive.-Note by Sir William Jones, p. 4. † On failure of the two preceding classes, the distribution is made among those next of kin, who are neither sharers nor residuaries: they may be called the distant kindred.-Ibid.

Should none of the distant kindred be living, and capable of inheriting, the estate goes (unless there be a widow or widower, who is first entitled to a share,) to him, who may be called the successor by contract; and of that succession it is necessary to give an example. If Amar, a man of an unknown descent, says to Zayid: "Thou art my kinsman and shall be my successor after my death, paying for me any fine and ransom to which I may become liable," and Zayid accept the condition, it is a valid contract by the Arabian law; and if Zayid also be a man whose descent is unknown, and make the same proposal to Amar, who likewise accepts it, the contract is mutual and similar, and they are successors by contract reciprocally.-Ibid.

LECTURE

II.

The description of the successor by contract is this:"If a person of unknown descent says to another: "Thou art my kinsman and shalt be my successor when I am dead, and thou shalt pay for me any fine and ransom to which I may become liable;" and if the other says: "I accept," then it is a valid contract according to our doctrine. The acceptor shall be the heir, he being the payer of the fine or ransom. If the other person also be one whose descent is unknown, and make the same proposal to the first (mentioned), and if he accept it, then each of them shall be successor (by contract) to the other, and pay for him any fine or ransom to which he may become liable. The person of unknown descent, may, however, retract from the contract so long as the other does not pay the fine or ransom for the contractor.-Sharífiyyah, page 10.

Sháfií, however, says: "No person can be a successor by contract except the master of an enfranchised slave." This doctrine is adopted by Sháfií as well as by Zayid. "But," says Sháríf, "the doctrine embraced by us (as already stated) is the same as maintained by Umar, Alí and Ibn-ul-Masúd-Ibid., pp. 9 & 10.

(p). This acknowledged kinsman takes after the succession of the successor by contract, and before the person to whom the whole property was left by will. There are, however, certain conditions to be observed: First, the acknowledgment of his consanguinity on the part of the acknowledger must import to be such as being through another. For instance, if one acknowledge a person of an unknown pedigree to be his brother, then his acknowledgment (of relation) must import as being through his father, for thereby he becomes his (the father's son).* Secondly, this acknowledgment must be such as not to prove his consanguinity through such other (third) person,-as when the father would not admit this consanguinity (i. e., the

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*If no such agreement had been made, but if Amar in his lifetime had acknowledged Zayid, a man of an unknown pedigree, to be his brother or his uncle, that is, to be related to him by his father, or by his grandfather, though in truth he had no such relation, and the bare acknowledgment of Amar cannot be admitted as a proof of it, yet if Amar die without retracting his declaration, Zayid is called the acknowledged kinsman by a common ancestor, and stands in the fifth class of successors, but takes the estate before the general devisce.-Note by Sir William Jones, page 4.

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unknown person's being his son). Thirdly, when the LECTURE acknowledger should die persisting in his acknowledgment. The result of these conditions or cases are evident.

Sharífiyyah, page 10.

(q). That is, when there is none of them who are above mentioned, they begin with the person to whom the whole property was left by will. Thus the bequest shall take effect with him (in his favor): inasmuch as the rule prohibiting against one's bequeathing more than one-third was for the sake of heirs, but if none of them be in existence, then according to us, he (the legatee) is to have the whole of what was left to him by will.-Ibid., p. 10.

The Sirájiyyah speaks of the whole property (and not of any portion thereof) left by the will, leaving others to infer that when he has spoken of the whole, he must be taken to have spoken also of any part thereof, the whole being equal to, and containing, all its parts. Accordingly, its commentator, Sharíf, after citing the passage to that effect, (viz. "Then the person to whom the whole property was left by will,") has, in his exposition thereof, expressly stated what was left (in the original) to implication, by saying, "That is, when there is none of them who are above-mentioned, they begin with the person to whom the whole property was left by will. Thus the bequest shall take effect with him (in his favor), inasmuch as the rule prohibiting against one's bequeathing more than one-third was for the sake of heirs; but if none of them be in existence, then according to us, he (the legatee) is to have the whole of what was left to him by will.”

(r). That is, if there be none of the persons abovementioned, the property left by the deceased is to be placed in the Public Treasury; because the property is susceptible of being lost; so it is to be (placed therein) for all Mussulmáns. This (deposit), however, is not by way of inheritance, since they (the Mussalmáns) are brethren. Do you not see that when an alien tributary leaves no heir, his property (also) is placed in the Public Treasury, though Mussalmáns are not entitled to the inheritance of infidels; and this also is a proof (of its not being placed there as an inheritance,) that it is equally distributed to the male and female Mussalmáns when a distribution of such property is made; whereas in the (distribution of) inheritance there is no equality between the two sexes.-Sharífiyyah, pp. 10 & 11.

Principle.

III. The followers of Sháfií, however, are of opinion that if there be regularity or safety in the Public Treasury, the placing of a deceased's property therein is preferred to its devolution upon According to Shati. the distant kindred, and its return (to the sharers);

Principle.

Shares and sharers.

but if there be no regularity there, it should first revert to those consanguineous relations who are entitled to shares, with reference (or in proportion) to their legal shares ; after (that is, on failure of) them, it should devolve on the distant kindred.Sharífiyyah, page 11.

According to them, the inheritance does not at all devolve on the successor by contract, nor on the person ackowledged as a kinsman; nor on the person to whom the whole property was left by will.—Ibid.

IV. The shares appointed in the Kurán are six: a moiety, a quarter, an eighth, two-thirds, one-third, and one-sixth. The persons entitled to these shares are twelve, of whom four are males, viz., the father, the true grandfather (s), or an ancestor how high soever (in the direct paternal line), the brother by the same mother only, and the husband; and eight females, who are the wife, the daughter, and the daughter of a son how low soever (t), the sister by the same father and mother, the sister by the father's side, and the sister by the mother's side, the mother, and the true grandmother (u).-Sirájiyyah, page 7.

(s). The true grandfather is a male ancestor related to the deceased without the intervention of the mother or a female ancestor (as the father's father how high soever).Sirájiyyah, Arabic, page 18.

(t). That is, of any male descendant in the direct male line of the deceased.

(u). Here the grandmother is restricted to be the true one, and she is defined to be that person who is related to the deceased without the intervention of a false grandfather, that is the male ancestor related to the deceased necessarily by the intervention of the mother (or a female ancestor);

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