LECTURE first, she gets the first share, and the other two fall VII. to the son.-Hidayah, vol. iv, page 17. Principle. Principle. Principle. CLIV. The partitioner in making the divisions of landed property, must not annex a consideration in dirms or dínárs (money), without the concurrence of the parties (c).-Ibid, page 17. (c.) That is to say, if he make one share less than the other, and as a compensation annex to it a sum in dirms (money), it is not valid unless they consent, for partnership is not in dirms, and partition is one of the rights of partnership. Besides, if dirms be admitted into the transaction, it destroys the equality of the portion; because one of the partners gets the property, and is liable for the dirms which have become the right of the other; and there is possibility that he may never pay them, by which means the other would lose his right.-Ibid, pages 17 & 18. CLV. Another common method of partition is by usufruct (Maháyat*), in which each heir enjoys the use, or the profits, of the property by rotation.† The same is as follows: CLVI. If a partition be made regarding the produce of a house to this effect, that the one partner * Maháyat, in the language of the law, signifies the partition of the usu fruct, and it is allowed; because it is frequently impossible for all the partners to enjoy together, and at one and the same time, the use of the thing held in partnership. Maháyat, therefore, resembles the partition of property, with this difference, however, that in the partition of property each sharer enjoys the use of his respective share at the same time, whereas in the partition of usufruct each most frequently enjoys the use of the thing held in partnership only when it comes to his turn by rotation. Partition of property is, therefore, more effectual than partition of usufruet in accomplishing the enjoyment of the use; for which reason, if one partner apply for a partition of property, and another for a partition of usufruct, the Kází must grant the request of the former; and if a partition of usufruct should have taken place, with respect to a thing capable of a partition of property (such as a house or a piece of ground), and afterwards one of the partners apply for a partition of property, the Kází must grant partition of property and annul the partition of usufruct.-Hidáyah, vol. iv, page 31. † But this method is subordinate to actual partition; and where one co-heir demands separation, and the other, a division of the usufruct only, the former claim is entitled to preference in all practicable cases.-Macn. M. L., Chap. I, Sect. xii, Princ. 115. VII. shall let it out for one or two months, and enjoy the LECTURE produce or rent, and that afterwards the other partner shall let it out in the same manner, and enjoy the rent, such a partition is valid, according to Záhir-ur-Rawáyit; but a similar agreement regarding a slave or a quadruped is not valid.-Hidayah, vol. iv, page 36. CLVII. If it should happen that the rent of a Principle. house is greater during the turn of one partner, than in that of the other, they are both to participate in the excess, or difference betwixt the one rent and the other, so that an exact equality may be effected betwixt them. It is otherwise where they make a partition respecting the use of the house, and it afterwards yields a greater produce to the one in his turn than to the other.-Ibid, page 36. CLVIII. If two partners, by a mutual contract, Principle. make a partition of usufruct respecting a house, to this effect, that one of them shall inhabit one part of it, and the other another,—or that one shall inhabit the upper floor, and the other, the lower, such contract is valid; for as a partition of property executed in this manner is lawful, so likewise is a partition of usufruct.*-Ibid, page 32. CLIX. If two persons make a partition of usu- Principle. fruct regarding two houses; in this manner, that the It is proper to remark, that a partition of usufruct, when thus executed, is in reality a separation, that is a division of the whole of the shares of usufruct of one partner from those of another partner.-Hidayah, vol. iv, page 32. It is lawful for each partner to let out on rent that part of which the usufruct has fallen to him, and he may appropriate to himself the rent accruing therefrom, whether it be a condition in the agreement of partition of usufruct or not; for every use which accrues from that part becomes (in consequence of the partition of usufruct) his property, and the rent which he receives is nothing more than a compensation given him in lieu of the use accruing from it.—Ibid, page 32. 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 parters 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. Hidayah, 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-Mukhtár, 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 су. 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 Musalman 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. |