LECTURE of there being a husband and a daughter, the estate must VI. be divided into four to give one-fourth to the husband (who, in this case is not entitled to a return,) and after he has taken one of four, or a fourth, which is his legal share, two (or half of the estate) will go to the daughter as her fixed share, then the remaining one, or one-fourth, will return or revert to her, she being entitled also to the same. And where there occur sharers entitled to shares of both series, there the estate may be divided in the first instance either by six, twelve, or twenty-four as the case may require; and after giving the share of the person not entitled to a return, the fixed shares of the classes or individuals entitled to return may be first given, and then the surplus, if any, may be distributed among them in proportion to their respective rights. But as there are cases in which the fixed shares as well as the surplus cannot be distributed without a fraction, the Muhammadan lawyers have laid down certain rules or principles to which recourse should be had in arranging the cases of return. Principle. Principle. CXIV. The Increase (Oul) is the adding of something to the divisor out of its own portions: this takes place when a divisor falls short of the shares (required).* CXV. The divisors are seven in number, namely, two, three, four and eight; six, twelve and twentyfour, of which only the last three are increased.Vide Sirájiyyah, page 24. ANNOTATIONS. cxiv. Increase (oul) is contrary to return, as will be presently mentioned. It is the adding of a share or shares when the divisor falls short of the shares (required,) so that there is a decrease or loss to all the parties *The above is the true translation of its original, which runs thus:“Al-oulu an yuzáda alá al makhirji shayun min ajazáyhi, izá záká al makhriju an farzin ;" but this has been differently rendered by Sir William Jones: the same is as follows: "Oul or increase is, when some fraction remains above the regular divisor, or when the divisor is too small to admit one share.”— Vide Sirájiyyah, page 32. The increase is where there is a certain number of legal sharers, each of whom is entitled to a specific portion, and it is found, on a distribution of VI. CXVI. The divisor six is increased up to ten by LECTURE the addition of odd as well as even numbers (a).* Vide Sirájiyyah, page 24. Principle. (a.) That is, it is increased to seven by (the addition Explanaof) a sixth part of it in the case where the shares occur- tion, &c. ring together are a half and two-thirds,—as (in the case of) a woman leaving her husband, two sisters by the same father and mother; or (in the case of) two halves and a sixth part occurring together,—as in the case of a husband, a sister by the same father and mother, a sister by the same mother only, or a sister by the same father only (surviving a deceased woman). It is increased to eight by (the addition of) a third part of it, in the case where the portions occurring together are one-half, two-thirds, and one-sixth part, as (on the survival of) a husband, two sisters of the whole blood, and a mother; or where two ANNOTATIONS. in proportion to their shares, like the proportional decrease or loss to the creditors in proportion to the assets. Umar was the first who laid down the principle of Increase.-Durr-ul-Mukhtár, page 877. To a case of this kind the rule of the oul, or increase, is applicable, according to the majority of the companions; and it consists in raising the shares of the property, to the numbers of the shares of the sharers, by which means the deficiency is distributed over all the sharers in proportion to their respective shares.- Fatáwá Alamgírí, vol. vi, page 651. B. Dig., 713. cxvi. The (divisor) six is increased to ten by the addition of four either by odd or even numbers. Thus it is increased to seven in the case of there being a husband and two whole sisters;-to eight, in the case of those persons and another;-to nine, in the case of those persons and a brother by the same mother only;-and to ten in the case of those persons and another brother by the same mother only (being left by a woman at her death).-Durr-ul-Mukhtár, page 868. shares into which it is necessary to make the estate, that there is not a sufficient number to satisfy the just demands of all the claimants.-Macn. Princ., M. L., Chap. I, Sect. vii, Princ. 88. It takes effect in three cases; either when the estate should be made into six shares, or when it should be made into twelve, or when it should be made into twenty-four.-Ibid, Princ. 89. Where six is the number of shares into which it is proper to distribute the estate, but that number does not suit to satisfy all the sharers without a fraction, it may be increased to seven, eight, nine or ten.-Macn. Princ., M. L., Princ. 67. 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. CXVII. But twelve is raised up to seventeen by odd, and not by even, numbers (b).*-Sirájiyyah, page 24. Principle. 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-Makhtár, 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. |