II.

LECTURE nor a true grandfather, by any of whom they are excluded. And among the children by the same mother only there is no distinction of sex as regards their heritable right and share, both brothers and sisters of the above description having an equal right and an equal share in the distribution.*

Principle.

VIII. The husband is entitled to a moiety on failure of the deceased's own issue or that of her son Of Hus- how low soever, and to a fourth when there is any such issue (x).

band.

(x.) The author of the Durr-ul-Mukhtar says:-" A fourth is the share of the husband or husbands; as where two or more men allege to have married the deceased, and adduce proofs; but the deceased did not live in the house

ANNOTATIONS.

vii. One-sixth is (the share) of a single child of the mother, onethird of two or more of the mother's children : (the rights of the) females are the same as (those of) males.-Durr-ul-Mukhtár, page 863.

The mother's children who are brothers and sisters by the same mother only, are excluded by the (deceased's) children and his son's children how low soever, also by the father and grandfather, as the Learned agree; because they are neither children nor parents (of the deceased). Durr-ul-Mukhtár, page 866.

The mother's children take in three cases: a sixth is the share of one only a third of two or of more: males and females have an equal division and right. But they are excluded by the children of the deceased, and by his son's children how low soever, as well as by the father and grandfather, as the Learned agree.-Sirájiyyah, page 8.

Viii. The husband takes in two cases: half on failure of children, and son's children how low soever; and a fourth with children or son's children how low soever they descend.-Sirájyyah, page 4.

* A single half-brother, by the same mother only, takes a sixth, and two or more such half-brothers, a third; provided that the deceased left neither children, nor mlae issue of a son, nor a father, nor a true grandfather; by any of whom the brothers by the same mother are excluded; and this article brings us necessarily to one class of female sharers; for, in this instance, there is no distinction of sex, both brothers and sisters by the same mother only having an equal right and an equal share in the distribution.-Commentary by Sir William Jones, p. 9.

II.

of any one of them, and none of them cohabited with her, LECTURE then (in that case) they will share the portion of one husband by reason of none of them having preference to the other this (share) is, however, allotted in the case of existence of one of those two, namely, the deceased's issue or her son's issue; a half being the husband's share on failure of those two (descriptions of issue). Thus, there are two cases (of allotments) for the husband, a half, and a fourth."-Durr-ul-Mukhtár, page 863.

Of wives.

IX. The wife or wives (as the case may be) of Principle. the deceased get a fourth of his estate on failure of his own issue or that of his son how low soever, but an eighth only, if the deceased is survived by, any such issue.

Vide Macnaghten's Precedents of Muhammadan Law, Precedents. Cases lxxvi and xiv, also the note in the following page.

COROLLARIES.

1. If there be many widows, they collectively inherit and equally divide among themselves the wife's legal portion, that is one-fourth-if the husband left no issue, and one-eighth-if he left any: they have no pretentions to have more even on the ground of there being a single child and many widows of the late proprietor.- Vide East's Notes No. I.

2. In law there is no distinction between a wife married in her maidenhood and that married when widowed or divorced: consequently widows of both descriptions have equal rights to the estate of their deceased husband.

For instance, if a person dies leaving two widows-the Example. one married by the ceremony of Shádí, and the other by that of Nikáh; and by the former three sons and five daughters, and by the latter two sons and one daughter,

ANNOTATIONS.

ix. An eighth should be the share of the wife or wives, if there be issue or son's issue how low soever; and a fourth on failure of such issue.-Durr-ul-Muktár, p. 863.

Wives take in two cases: a fourth (goes) to one or more on failure of children or son's children how low soever, and an eighth with children or son's children in any degree of descent.-Sirájiyyah, page 10.

II.

LECTURE The two widows will collectively receive, and equally divide among themselves, one-eighth of the deceased's estate. Vide Macnaghten's Precedents of Muhammadan Law, Case lxv.

Principle.

Of daugh

ters.

X. An only daughter takes a moiety, two or more daughters collectively take two-thirds, of the deceased's estate, in the event of his leaving no son or sons; but if he left also a son or sons, then the daughters are no longer sharers, but are rendered residuaries, and each of them is, in that case, entitled to a portion equal to half of a son's share.*

COROLLARY.

The term 'daughter,' intending one's own daughter, and not a step-daughter also, the latter is no heir, and has no pretention to claim inheritance.-Vide Macnaghten's Precedents of Muhammadan Law, Case xxii.

ANNOTATIONS.

x. The daughters begotten (or brought forth) by the deceased take in three cases: half (goes) to one only, and two-thirds to two or more; and if there be a son, the male has the share of two females, and he makes them residuaries.-Sirájiyyah, page 10.

So whatever may remain after satisfying the share or sharers occurring in the case, the same is to be divided in the proportion of two shares to each brother and one share to each sister.

* Let us proceed to the shares of the females; and 1-If Amar die without children, and without any issue of a deceased son, his widow Hindah must receive a fourth of his assets; but her share is an eighth only, if any such issue be living should he leave more widows than one, they take equal parts of such fourth or eighth; so that the legal share of the widower is always in a double ratio to that of the widow or widows: as, if Hindah die worth twenty-four thousand zecchins, her surviving husband Amar must be entitled either to twelve or to six thousand; and if Amar die with the same estate, his widow Hindah must have either six or three thousand for her sole share; or if Zayenab and Abla had also been legally married to Amar, the three widows must receive either two or one thousand zecchins each, as the case may happen. 2-One daughter takes a moiety, and two or more daughters have two-thirds of their father's estate; but if the deceased left a son, the rule, expressed in the Kurán, is this: "to one male give the portion of two. females ;" and the daughters in that case are not properly sharers, but residuary heirs with the son, their part of the inheritance being always

Of son's

XI. A son's only daughter takes a moiety, two or Principle. more such daughters take two-thirds, of their late grandfather's estate in the event of his leaving no daughters. son, nor daughter, nor son's son. But if the deceased left a son, then the son's daughter or daughters are excluded by him; if he left a single daughter of his own, then one-sixth only goes to the son's daughter or daughters; but if he left two or more daughters, then his son's daughter or daughters get nothing, unless there be in an equal degree with, or in a lower degree than, them, a male, by whom they are rendered residuaries, and the residue remaining after the twothirds of the estate have been taken by the deceased's daughters is divided between this male and the son's daughter or daughters according to the rule "The

in a sub-duple ratio to his part. Thus, if Amar die worth twenty-four thousand pieces of gold, his only child Fátima takes twelve thousand as her share, but, if she have three sisters, Azzá, Latífah, and Zubaedah, two-thirds of the assets, or sixteen thousand pieces, are equally divided between the four girls; and, if there be a son Umar, he must receive, in the first case, sixteen thousand, while Fátima has eight; and in the second, eight thousand, while she and her sisters take each four thousand pieces. 3-If Umar had died before his father, leaving female issue, and his father had then died without any daughter of his own, the daughters of Umar would have had precisely the same shares, to which those of Amar himself would have been entitled, but had Fátima been living, she would have taken half the estate, or twelve thousand pieces of gold, and a sixth only, or four thousand the complement of two-thirds or sixteen thousand, would have been equally distributed among her nieces. Had Fátima and Azzá been at that time alive, they would have taken their legal shares to the exclusion of their brother's female issue, unless the right of that issue had been sustained by a male in an equal or a lower degree, who would have made them residuaries, "the male taking, by the rule, the portion of two females;" but a male in a higher degree would not have given them that advantage; and, if Umar himself had survived, his daughters would have been wholly excluded. The six cases, therefore, or differents ituations, of the female issue of Umar may be thus recapitulated: 1st,-A single female takes a moiety. 2nd,-Two or more have two-thirds. 3rd,-A male in the same, or a lower, degree than themselves, gives them a residuary right in a sub-duple ratio to his own. 4th,-With a daughter of Amar, who is entitled to half, they would have only a sixth, to make up the regular share of the female issue. 5th,-They are excluded, if Amar left more daughters than one, but no male issue in any equal or a lower degree. 6th,-A son also of Amar wholly excludes them. In the first three cases, their legal claims correspond with those of daughters; but in the last three their rights are weaker, because they are in a remoter degree from the deceased.-Illustration by Sir William Jones, vide Sirájiyyab, page 10.

II.

LECTURE male has double the portion of a female." If, however, the deceased left neither a son nor daughter, but only his son's son and daughter, then the whole of his estate will be taken by them-the grandson taking two shares and the granddaughter one share in accordance with the above rule (y).* .

(y). If a man leave three son's daughters, some of them in lower degrees than others, and three daughters of the

ANNOTATIONS.

xi. The son's daughters are like the daughters begotten by the deceased; and they may be in six cases: half (goes) to one only, and twothirds to two or more, on failure of daughters begotten by the deceased; with a single daughter of the deceased, they have a sixth completing (with the daughter's half) two-thirds; but, with two daughters of the deceased, they have no share of the inheritance, unless there be, in an equal degree with, or in a lower degree than, them, a boy,† who makes them residuaries. As to the remainder between them, the male has the portion of two females; and all of the son's daughters are excluded by the son himself.-Sirájiyyah, page 10.

A sixth is the share of the son's daughter or daughters with a single daughter begotten (or brought forth) by the deceased, completing, (with the daughter's half) two-thirds.-Durr-ul-Mukhtár, page 863.

If a person leave three son's daughters, some of them lower in degree than others, and three daughters of the son of another son of the same

When there is a son, the children of a son take nothing; when there is one daughter, she takes a half, and the son's daughters have a sixth; and if there are two daughters, they take two-thirds, and there is nothing for the son's daughters. That is, when there is no male among the children of a son; but if there is a male he makes the females (whether his sisters or cousins) residuaries with him; so that if there were two daughters or more of the loins, they would have two-thirds between them, and the remainder would pass to the children of the son, in the proportion of two parts to each male and one part to each female. Though the male were in a grade below them, he would make them residuaries with him; so that the remainder would be between him and them in the same proportion, or two parts to each male, and one to each female. Thus, if there were two daughters, a son's daughter, the daughter of a son's son, and the son of a son's son, the daughters would take two-thirds, and the remainder be between the son's daughter and all below her, in the proportion of two parts to the male, and one part to each female. The principle in this case is, that a son's daughter becomes a residuary with a son's son, whether he is in the same or a lower grade with herself, when she is not a sharer.-Fatáwá Aalamgírí, vol. vi, p. 625;-B. Dig, pp. 687 and 688.

Here the Arabic word rendered by 'boy' is 'Ghulám by which is here meant a brother, or paternal uncle's son, or the son of either of them.