Principles of Mohammadan Law

==Chapter I. PRINCIPLES OF INHERITANCE==
===Section I. GENERAL RULES===
1. There is no distinction between real and personal, nor between ancestral and acquired property, in the Mohammadan Law of Inheritance. 
2. Primogeniture confers no superior right. All the sons, whatever their number, inherit equally. 
3. The share of a daughter is half the share of a son, 
whenever they inherit together. 
4. A will made in favour of one son, or of one heir, 
cannot take effect to the prejudice and without the consent 
of the other sons, or the other heirs. 
5. Debts are claimable before legacies, and legacies (which, however cannot exceed one-third of the testator's 
estate, must be paid before the inheritance is distributed. 
6. Slavery, homicide, difference of religion and difference of allegiance, exclude from inheritance. 
7. But persons not professing the Mohammadan faith 
may be heirs to those of their own persuasion: in the case 
of persons who are of the Mohammadan faith, difference of 
allegiance does not exclude from inheritance. 
8. To the estate of a deceased person, a plurality of 
persons having different relations to the deceased, may 
succeed simultaneously, according to their respectively 
allotted shares, and inheritance may partly ascend lineally, 
and partly descend lineally at the same time. 
9. The son of a person deceased shall not represent 
such person if he died before his father. He shall not 
stand in the same place as the deceased would have done 
had he been living, but shall be excluded from the inheritance, if he have a paternal uncle. For instance, A, B, 
and C are grandfather, father, and son. The father B 
dies in the lifetime of the grandfather A. In this case 
the son C shall not take jure representationis, but the 
estate will go to the other sons of A. 
10. Sons, son's sons and their lineal descendants, in 
how low a degree soever, have no specific share assigned 
to them: the general rule is that they take all the property after the legal sharers are satisfied, unless there are 
daughters; in which case each daughter takes a share 
equal to half of what is taken by each son. For instance, 
where there are a father, a mother, a husband, a wife, and 
daughters, but little remains as the portion of sons; but where there are no legal sharers nor daughters, the sons 
take the whole property. 
11. Parents, children, husband and wife must, in all cases, get shares, whatever may be the number or degree of the other heirs. 
12. It is a general rule that a brother shall take double 
the share of a sister. The exception to it is in the case 
of brothers and sisters by the same mother only, but by 
different fathers. 
13. The portions of those who are legal sharers only, 
and not residuary heirs, can be stated determinately, but 
the portions receivable by those who are both sharers and 
residuaries cannot be stated generally, and must be adjusted with reference to each particular case. For instance, 
in the case of a husband and wife, who are sharers only, 
their portion of inheritance is fixed for all cases that can 
occur; but in the case of daughters and sisters who are, 
under some circumstances, legal sharers, and under others 
residuaries, and in the case of fathers and grandfathers 
who are, under some circumstances, legal sharers only, and under others, residuaries also, the extent of their portions depends entirely upon the degree of relation of the other heirs and their number.Daughters without sons are legal sharers, and so are sisters without brothers, but with them they become merely residuaries. Grandfathers and fathers with sons, son's sons, etc., are legal sharers, but with daughters only they are residuaries, as well as legal sharers.
===Section II. OF SHARERS AND RESIDUARIES===
14. The widow takes an eighth, of her husband's estate 
where there are children or son's children, how low soever, 
and a fourth where there are none. 
15. The husband takes a fourth of his wife's estate 
where there are children or son's children, how low soever, 
and a moiety where there are none. 
16. Where there is no son and there is only one 
daughter, she takes a moiety of the property as her legal 
share. 
17. Where there is no son, and there are two or more 
daughters, they take two-thirds of the property as their 
legal share. 
18. Where there is no son, nor daughter, nor son's 
son, the son's daughters take as the daughters, namely, a 
moiety is the legal share of one and two-thirds of two 
or more. 
19. Where there is one daughter, the son's daughters 
take a sixth, but where there are two or more daughters 
they take nothing. 
20. Where there is a son's son, however, or a son's 
grandson, the son's daughters take a share equal to half 
of what is allotted to the grandson or great-grandson. 
21. Brothers and sisters can never take any share of 
the property, where there is a son or son's son, how low 
soever, or a father or grandfather.It is the orthodox opinion that the grandfather excludes brethren of the whole blood and those by the same father only. Among the Shias, who adhere to the doctrine of the two disciples, the contrary opinion is maintained. The terms "grandfather" and "grandmother" are intended to include all ancestors, in whatever degree of ascent, between whom and the deceased no female intervenes. 
22. Where there are uterine brothers, the sisters take 
a share equal to half of what is taken by the brothers; 
and they being then residuaries, the amount of their shares 
varies according to circumstances. 
23. In default of sons, son's sons, daughters and 
son's daughters, where there is only one sister and no 
uterine brother, she takes a moiety of the property. 
24. In default of sons, son's sons, daughters and 
son's daughters, where there are two or more sisters 
and no uterine brother, they take two-thirds of the 
property. 
25. Where there are daughters or son's daughters 
and no brothers, the sisters take what remains after 
the daughters or son's daughters have realized their 
shares; such residue being half, should there be only 
one daughter or son's daughter, and one- third should 
there be two or more. 
26. A distinction is made between the two descriptions 
of half brothers and half sisters. Half brothers and half 
sisters, who are by the same father only, can never inherit 
a half brother's estate while there are both brothers and 
sisters by the same father and mother, but those by the 
same mother only do inherit with brethren of the whole 
blood. 
27. Where there is only one sister by the same father 
and mother, the half sisters by the same father only, supposing them to have no uterine brother, take one-sixth 
as their legal shares. 
28. "Where there are two or more sisters by the same 
father and mother, the half sisters by the same father 
only, supposing them to have no uterine brother, take 
nothing. 
29. Where, however, the half sisters by the same 
father only, have an uterine brother, they each take a 
share equal to half of what is allotted to him. 
30. Among brothers and sisters by the same mother 
only, difference of sex makes no distinction in the amount 
of the shares, contrary to the case of brothers and sisters 
by the same father and mother, and brothers and sisters by 
the same father only; but the general rule of a double 
share to the male applies to their issue. 
31. Where there is one brother by the same mother 
only, or one sister by the same mother only, his or her 
share is one-sixth provided there are no children of the 
deceased nor son's children, nor father, nor grandfather, 
and where there" are two or more children by the same 
mother only, their share is one-third. 
32. Where there is a son of the deceased, or son's son, 
how low soever, or two or more brothers and sisters, the 
father will take one-sixth. 
33. Where there are children, or son's children, how 
low soever, or two or more brothers and sisters, the mother 
will take one-sixth. 
34. Where there are no children, nor son's children, 
and only one brother or sister, the mother will take one-third with a widow or widower, if she have a grandfather to share with, instead of a father; but a third of the 
remainder only, after the shares of the widow or widower 
have been satisfied; if there be a father to share with her. 
35. Grandfathers can never take any share of the property where there is a father. 
36. Where there is a son of the deceased or son's son, 
how low soever, and no father, the grandfather will take 
one-sixth. 
37. Grandmothers can never take any share of the 
property where there is a mother, nor can paternal grand- 
mothers inherit where there is a father. 
38. Paternal female ancestors of whatever degree 
of ascent are also excluded by the grandfather, except 
the father's mother; she not being related through the 
grandfather. 
39. The share of a maternal grandmother is one-sixth, 
and the same share belongs to the paternal grandmother 
where there is no father. 
40. Two or three grandmothers being of equal degree 
take the sixth equally. 
41. But grandmothers who are nearer in degree to 
the deceased, exclude those who are more distant. 
42. A maternal grandfather and the mother of a 
maternal grandfather are not entitled to any specific share, 
they being termed false ancestors, and not included in the 
number of sharers or residuaries. 
158 MOHAMMADAN LAW. Chapter I. 
===Section III. OF DISTANT KINDRED===
43. Where there is no son nor daughter, nor son's 
son, nor son's daughter however low in descent, nor father, 
nor grandfather, nor other lineal male ancestor, nor 
mother, nor mother's mother, nor father's mother, nor 
other lineal female ancestor, nor widow, nor husband, 
nor brother of the half or whole blood; nor sons, how low 
soever, of the brethren of the whole blood or of those by 
the same father only, nor sister of the half or whole blood, 
nor paternal uncle, nor paternal uncle's son, how low 
soever (all of whom are termed either sharers or residuaries),Of the persons here enumerated the following males are legal sharers, namely, the father, the grandfather or other lineal male ancestor, the husband and the brother of the half blood by the same mother only, and the following females, namely, the daughter, the son's daughter, the widow, the mother, the grandmother, the sister by the same father and mother, the sister by the same father only and the sister by the same mother only. The shares of these persons vary according to circumstances, and in particular instances some of them (as has been shown) are liable to exclusion altogether. The rest of the persons enumerated are residuaries only, and have no specific shares. the daughter's children and the children of the son's daughters succeed; and they are termed the first class of distant kindred. 
44. In default of all those above enumerated, the 
grandfathers and grandmothers of that description, who 
are neither sharers nor residuaries, succeed; and they are 
termed the second class of distant kindred. 
45. In their default the sister's children, and the 
brother's daughters, and the sons of the brothers by the same mother only, succeed; and they are termed the 
third class of distant kindred. 
46. In their default the paternal aunts and uncles 
by the same mother only, and maternal uncles and aunts 
succeed; and they are termed the fourth class of distant 
kindred. 
47. In their default the cousins, that is, the children 
of paternal aunts and uncles by the same mother only, and 
of maternal uncles and aunts succeed. 
48. There is an exception to the above general rules, 
relative to the succession of distant kindred after residuaries. 
If the estate to be inherited belonged to an enfranchised 
slave, his manumittor and the heirs of such manumittor 
inherit, in preference to the distant kindred of the 
deceased. 
49. The rule with regard to the succession of distant 
kindred is, that they take according to proximity of 
degree, and when equal, those who claim through one 
heir have a preference to those who claim through one not 
being an heir. For instance, the daughter of a son's 
daughter and the son of a daughter's daughter are equi- 
distant in degree from the ancestor: but the former shall 
be preferred, by reason of the son's daughter being an 
heir, and the daughter's daughter not being an heir: 
if there should be a number of these descendants of equal 
degree, and all on the same footing with respect to the 
persons through whom they claim, but where the sexes 
of the ancestors differ in any stage of the ascent, the distribution will be made with reference to such difference 
of sex; regard being had to the stage at which the difference first appeared: for instance, the two daughters 
of the daughter of a daughter's son will get twice as much 
as the two sons of a daughter's daughter's daughter; 
because one of the ancestors of the former was a male, 
whose portion is double that of a female.The opinion of Abti Tusaf is that where the claimants are on the same footing with respect to the persons through whom they claim, regard should be had to the sexes of the claimants, and not to the sexes of their ancestors. But this, although the most simple, is not the most approved rule. The rule may be thus exemplified. The claimants being a maternal grandfather and the mother of a maternal grandfather, the former being 
more proximate excludes the latter; but suppose them to be the father of a maternal grandfather and the mother of a maternal grandfather: here the claimants are equal in point of proximity; the side of their relation is the same and they are equal with respect to the sex of the person through whom they claim, and in this case the only method of making the distribution is by having regard to the sexes of the claimants and by giving a double share to the male. 
50. The succession also, with regard to the second 
class of distant kindred, is regulated nearly in the same 
manner, by proximity, and by the condition and sex of 
the person through whom the succession is claimed when 
the claimants are related on the same side: when the 
sides of relation differ, two-thirds go to the paternal, and 
one to the maternal side, without regard to the sex of the 
claimants.
51. The same rules apply with regard to the third as 
to the first class of distant kindred; for instance, the 
brother's son's daughter and the sister's daughter's son 
are equidistant from the ancestor; but the former shall 
be preferred by reason of the brother's son being a 
residuary heir, and where they are equal in this respect 
the rule laid down for the first class is applicable to this. 
52. With regard to the fourth class all that need 
be said is, that (the sides of relation being equal) uncles 
and aunts of the whole blood are preferred to those of 
the half, and those who are connected by the same father 
only, to those by the same mother only. Where the 
strength of relation is also equal, as, for instance, where the 
claimants are a maternal uncle and a maternal aunt, of the 
whole blood, then the rule is, that the male shall have a 
share double that of the female. Where, however, one 
claimant is related through the father only, and the other 
is related through the mother only, the claimant related 
through the father shall exclude the other if the sides of 
their relation are the same; for instance, a maternal aunt 
by the same father only, will exclude a maternal aunt by 
the same mother only; but if the sides of their relation 
differ for instance, if one of the claimants be a paternal 
aunt by the same father and mother, and the other be a 
maternal aunt by the same father only, no exclusive pre- 
ference is given to the former, though she obtains two 
shares in virtue of her paternal relation. 
53. The succession of the children of the above class, 
that is, the cousins, is regulated by the following rules: 
propinquity to the ancestor is the first rule. Where that 
is equal, the claimant through an heir inherits before the 
claimant through one not being an heir, without respect to 
the sex of the claimants; for instance, the daughter of 
a paternal uncle succeeds in preference to the son of a 
paternal aunt unless the aunt is related on both the father's 
and mother's sides, and the relation of the uncle be by the 
same mother only. But where the son of a paternal aunt by the same father and mother, and the son of a maternal 
aunt by the same father and mother, or by the same father 
only, claim together, the latter will not be excluded by the 
former; the only difference is, that two-thirds are the right 
of the claimant on the paternal side, and one-third that of 
the claimant on the mother's side. Should there be no 
difference between the strength of relation, the sides or the 
sexes of the persons through whom they claim, regard must 
be had to the sexes of the claimants themselves. 
54. In the distribution among the descendants of this 
class, the same rule is applicable as to the descendants of 
the first class; for instance, the two daughters of the 
daughter of a paternal uncle's son will get twice as much 
as the two sons of the daughter of a paternal uncle's 
daughter, supposing the relation of the uncles to be the 
same, and in case of equality in all other respects regard 
must be had as above, to the sexes of the claimants.In considering the doctrine of succession of distant kindred attention must be paid to the following points. First, their relative distance in degree of relation from the deceased, whether a greater or lesser number of degrees removed. Secondly, it must be ascertained whether any of the claimants are the children of heirs. If so, preference must be shown to such children. Thirdly, their strength of relation, whether they are of the half or whole blood. Fourthly, their sides of relation, whether connected by the father's or mother's side; and Fifthly, the sexes of the persons through whom they claim, whether male or female. "With respect to this latter point, however, a difference of opinion exists; it being maintained by some authorities that cateris paribus no regard should be had to the mere sex of the person through whom the claim is made, but that the adjustment should be made according to the sex of the claimants themselves. But the contrary is the most approved doctrine. It should be recollected too, that whenever the sides of relation differ, those connected through the father are entitled to twice as much as those connected through the mother, whatever may be the sexes of the claimants. 
55. In default of distant kindred, he has a right to succeed whom the deceased ancestor acknowledged conditionally, or unconditionally, as his kinsman: provided the 
acknowledgment was never retracted, and provided it 
cannot be established that the person in whose favour the 
acknowledgment was made belongs to a different family. 
56. In default of all these, there being no will, the 
property will escheat to the Public Treasury; but this 
only where no individual has the slightest claim. 
===Section IV. PRIMARY RULES OF DISTRIBUTION===
57. Where there are two claimants, the share of one 
of whom is half, and of the other a fourth, the division 
must be made by four; as in the case of a husband and an 
only daughter, the property is made into four parts, of 
which the former takes one and the latter two. The 
remaining fourth will revert to the daughter. 
58. Where there are two claimants, the share of one 
of whom is half, and of the other an eighth, the division 
must be made by eight; as in the case of a wife and 
a daughter, the property is made into eight parts, of 
which the daughter takes four and the wife one. The 
surplus three shares revert to the daughter. 
59. No case can occur of two claimants, the one entitled 
to a fourth and the other to an eighth; nor of three 
claimants, the one entitled to half, the other to a fourth, 
and the third to an eighth. 
60. Where there are two claimants, the share of one 
of whom is one-sixth, and of the other one-third; as in 
the case of a mother and father being the only claimants, 
the property is made into six parts, of which the mother 
takes two and the father one as his legal share. The surplus 
three shares revert to the father. 
61. Where there are two claimants, the share of one 
of whom is one-sixth, and of the other two-thirds; as in 
the case of a father and two daughters being the only 
claimants, the property is made into six parts, of which the 
father takes one as his legal share, and the two daughters 
four. The surplus share reverts to the father. 
62. Where there are two claimants, the share of one 
of whom is one-third, and of the other two-thirds; as in 
the case of a mother and two sisters, the property is made 
into three parts, of which the mother takes one and the 
two sisters two. 
63. No case can occur of three claimants, the one 
entitled to one-sixth, the other to one-third, and the other 
to two-thirds. 
64. Where a husband inherits from his childless wife 
(his share in this case being one half), and there are other 
claimants entitled to one-sixth, one-third, or two-thirds, 
such as a father, a mother, or two sisters, the division 
must be by six. 
65. Where a husband inherits from his wife who leaves 
children, or a wife from her childless husband (the shares 
of these persons respectively in these cases being one-fourth), 
and there are other claimants entitled to one-sixth, one-third, or two-thirds, the division must be made by twelve. 
66. Where a wife inherits from her husband, leaving 
children, her share in that case being one-eighth, and 
there are other claimants entitled to one-sixth, one-third, 
or two-thirds, the division must be made by twenty-four. 
67. 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. 
68. Where twelve is the number, and it does not suit, 
it may be increased to thirteen, fifteen, or seventeen. 
69. Where twenty-four is the number and it does not 
suit, it may be increased to twenty seven. 
===Section V. RULES OF DISTRIBUTION AMONG NUMEROUS CLAIMANTS===
70. Numbers are said to be mutamdsil, or equal, where 
they exactly agree. 
71. They are said to be mutaddkhil, or concordant, 
where the one number being multiplied, exactly measures 
the other. 
72. They are said to be mutatvdfik, or composite, where 
a third number measures them both. 
73. They are said to be mutabayin, or prime, where no 
third number measures them both. 
74. There are seven rules of distribution, the first three 
of which depend upon a comparison between the number of heirs and the number of the shares; and the four 
remaining ones upon a comparison of the numbers of the 
different sets of heirs, after a comparison of the number 
of each set of heirs with their respective shares. 
75. The first is when, on a comparison of the number 
of heirs and the number of shares, it appears that they 
exactly agree, there is no occasion for any arithmetical 
process. Thus, where the heirs are a father, a mother, 
and two daughters, the share of the parents is one-sixth 
each, and that of the daughters two-thirds. Here accord- 
ing to principle 61, the division must be by six, of which 
each parent takes one, and the remaining four go to the 
two daughters. 
76. The second is when, on a comparison of the number 
of heirs and the number of shares, it appears that the 
heirs.cannot get their portions without a fraction, and 
that some third number measures them both, when they 
are termed mutawdfik, or composite; as in the case of a 
father, a mother and ten daughters. Here, according 
to principle 61, the division must be by six. But 
when each parent has taken a sixth, there remain only 
four to be distributed among the ten daughters, which 
cannot be done without a fraction, and on a comparison 
of the number of heirs who cannot get their portions 
without a fraction, and the number of shares remaining 
for them, they appear to be composite, or agree in two. 
In this case the rule is, that half the number of such heirs, 
which is five, must be multiplied into the number of the 
original division 6: thus 5 * 6 = 30; of which the parents 
take ten, or five each, and the daughters twenty, or two each. 
77. The third is when, on a comparison of the number 
of the heirs and the number of shares, it appears that the 
heirs cannot get their portions without a fraction, and that 
there is one over and above between the number of shares 
remaining for them. This is termed mutabayin, or prime, 
as in the case of a father, a mother, and five daughters. 
Here also, according to principle 61 above quoted, the 
division must be by six* But when each parent has taken 
a sixth, there remain only four to be distributed among 
the five daughters, which cannot be done without a frac- 
tion, and on a comparison of the number of heirs who 
cannot get their portions without a fraction and the num- 
ber of shares remaining for them, they appear to be muta- 
bayin, or prime. In this case the rule is, that the whole 
number of such heirs, which is five, must be multiplied 
into the number of the original division. Thus 5 * 6 = 
30; of which the parents take ten, or five e&ch, and the 
daughters twenty, or four each. 
78. The fourth is when, on a comparison of the dif- 
ferent sets of heirs, it appears that one or more sets cannot 
get their portions without a fraction and that all the sets 
are mutamdsil, or equal, as in.the case of six daughters, 
three grandmothers, and three paternal uncles; in which 
case, according to principle 61, the division must be by 
six. Here, in the first instance, a comparison must be 
made between the several sets and their respective shares. 
The share of the daughters is two-thirds, but two-thirds of 
six is four, and four compared with the number of daughters 
six, is mutawafik, or composite, agreeing in two. The share 
of the three grandmothers is one-sixth, but one-sixth of six is one, and one compared with the number of grandmothers 
is mutabayin, or prime. The remaining share, which is 
one, will devolve on the three paternal uncles; but one 
compared with three is also mutabayin, or prime. 
Then the rule is, that the sets of heirs themselves must 
be compared with each other, by the whole where it appears 
that they were mufaddkhil, or concordant; or mutabayin, 
or prime; and by the measure where it appears that they 
were mutawdfik, or composite, and if agreeing in two, by 
half. In the instance of the daughters, the result of the 
former comparison was, that they agreed in two; consequently the half of their number must be compared with 
the whole number of the grandmothers and of the uncles, 
in whose cases the comparison showed a prime result. 
Thus 3=3 and 3 = 3, which being mutamdsil, or equal, 
the rule is, that one of the numbers be multiplied into the 
number of the original division. Thus 3 * 6 = 18; of 
which the daughters will take (two-thirds) twelve, or two 
each; the grandmothers will take (a sixth) three, or one 
each; and the paternal uncles will take the remaining 
three, or one each. 
79. The fifth is when, on a comparison of the different 
sets of heirs, it appears that one or more sets cannot get 
their portions without a fraction, and that the sets are 
mutaddkhily or concordant; as in the case of four wives, 
three grandmothers, and twelve paternal uncles. In this case, 
according to principle 65, the division must be by twelve. 
:Here, in the first instance, a comparison must be made between the several sets and their respective shares. Thus the share of the four wives is one-fourth; but the fourth of twelve is three, and three compared with, the number of wives is mutabayin y or prime. The share of the three grandmothers is one-sixth; but the sixth of twelve is two, and two compared with the number of grandmothers is also prime. The remaining shares, which are seven, will devolve on the twelve paternal uncles; but seven compared with twelve is also prime. 
:Then the rule is, that the sets of heirs themselves must be compared, the whole of each with the whole of each, as the preceding results show that they are prime, on the comparison of the several heirs with their respective shares. 
Thus 4 x 3 = 12, and 3 * 4 = 12, which being concordant, the one number measuring the other exactly, the rule is, that the greater number must be multiplied into the number of the original division. Thus 12 x 12 = 144; of 
which the wives will get (one-fourth) thirty- six, or nine each; the grandmothers (one- sixth) twenty- four, or eight each; and the paternal uncles the remaining eighty-four, or seven each. 
80. The sixth is when, on a comparison of the different 
sets of heirs, it appears that one or more sets cannot get 
their portions without a fraction, and that some of the sets 
are mutaivafik, or composite, with each other: as in the 
case of four wives, eighteen daughters, fifteen female an- 
cestors, and six paternal uncles: in which case, according 
to principle 66, the original division must be by twenty- 
four. Here, in the first place, a comparison must be made 
between the several sets and their respective shares. Thus 
the share of the four wives is an eighth; but an eighth of 
twenty-four is three, and three compared with the number of wives is mutalayin, or prime. The shares of the eighteen 
daughters is two-thirds; but two-thirds of twenty-four is 
sixteen, and sixteen compared with the number of daughters 
eighteen, is composite, and they agree in two. The share 
of the fifteen female ancestors is one-sixth; but a sixth of 
twenty-four is four, and four compared with the number of 
female ancestors, fifteen, is prime. The remaining share, 
which is one, will devolve on the six paternal uncles as 
residuaries; but one and six are prime. 
Then the rule is, that the sets of heirs themselves must 
be compared; by the whole where the preceding result 
shows that they were prime, and by their measure where 
it shows that they were composite. Thus 4 x 2 = 9 1, 
which being prime, the one number must be multiplied by 
the other. This result must then be compared with the 
whole of the third set; because the preceding result shows 
that set to have been prime. Thus 15><2 = 3 6 6 and 
6 = 15 9 and 6 =9 3, which agreeing in three, the 
third of one number, must be multiplied into the whole of 
the other. This result must also be compared with the 
whole of the fourth set; because the preceding result shows 
that set to have been prime. Thus 6 x 30 = 180, which 
being concordant or agreeing in six, the sixth of one num- 
ber must be multiplied into the whole of the other; but as 
it is obvious that by this process the result would still be 
the same, multiplication is needless. Then this result must 
be multiplied into the number of the original division. 
Thus 180 x 24 = 4320; of which the four wives will get 
an eighth, five hundred and forty, or one hundred and 
thirty-five each; the eighteen daughters two-thirds, two thousand eight hundred and eighty, or one hundred and 
sixty each; the female ancestors one- sixth, seven hundred 
and twenty, or forty-eight each; and the paternal uncles 
the remaining one hundred and eighty, or thirty each. 
81. The seventh and last is when, on a comparison of 
the different sets of heirs, it appears that all the sets are 
mutabayin, or prime, and no one of them agrees with the 
other; as in the case of two wives, six female ancestors, ten 
daughters, and seven paternal uncles. Here, according to 
principle 66, the original division must be by twenty-four. 
In the first instance, a comparison must be made between 
the several sets of heirs and their respective shares. Thus 
the share of the two wives is one-eighth; but the eighth 
of twenty- four is three, and three compared with the num- 
ber of wives is prime. The share of the six female an- 
cestors is one-sixth; but the sixth of twenty-four is four, 
and four compared with the number of female ancestors is 
composite, or agrees in two. The share of the ten daughters 
is two- thirds, and two- thirds of twenty-four is sixteen, and 
sixteen compared with the number of daughters is also 
composite or agrees in two. The remaining share, which 
is one, will devolve on the seven paternal uncles; but one 
and seven are prime. 
Then the rule is, that the sets of heirs themselves must 
be compared; by the whole where the preceding result 
shows that they were prime, and by the half or other measure, where it shows that they were composite. Agreeably 
to this rule the whole of the first set of heirs must be compared with half the second: thus 2 = 3 1, which num- 
bers being prime must be multiplied into each other. Then the result must be compared with the half of the next set, 
the former result having here also agreed in two. Thus 
5 = 6 1, which being prime, must be multiplied into 
each other. Then the result must be compared with the 
whole of the next set, the former result here having been 
prime. Thus 7*4 = 30 2 and 2x3=7 1, which 
being also prime, must be multiplied into each other. 
Thus 30 x 7 = 210, in which case the rule is, that this 
last product must be multiplied into the number of the 
original division. Thus 210 x 24 = 5040; of which the 
wives will take an eighth, six hundred and thirty, or three 
hundred and fifteen each; the female ancestors a sixth, 
eight hundred and forty, or one hundred and forty each; 
the daughters two-thirds, three thousand three hundred 
and sixty, or three hundred and thirty-six each; and the 
paternal uncles the remaining two hundred and ten, or 
thirty each. 
82. When the whole number of shares into which an 
estate should be made, has been found, the mode of ascertaining the number of portions to which each set of heirs 
is entitled, is to multiply the portions originally assigned 
them, by the same number by which the aggregate of the 
original portions was multiplied; as an easy example of 
which rule the following case may be mentioned. There 
are a widow, eight daughters, and four paternal uncles; 
the shares of the two first sets being one-eighth and two-thirds, the estate, according to principle 66, must be made 
originally into twenty-four parts, of which the widow is 
entitled to three, the daughters to sixteen, and there remain five to be divided among the four paternal uncles, but which, cannot be done without a fraction. Here the 
proportion between the shares and the heirs who cannot 
get their portions without a fraction, must be ascertained, 
and 4 = 5 1 being prime, the rule is (see No. 77), to 
multiply the number of the original division by the whole 
number of heirs so situated. Thus 24 * 4 = 96. Here, 
to find the shares of each set, multiply what each was 
originally declared entitled to, by the number by which 
the aggregate of all the original portions was multiplied. 
Thus 3 x 4 = 12, the share of the widow; 16 x 4 = 64, 
the share of the daughters; and 5 x 4 = 20, the share of 
the paternal uncles. 
83. To find the portion of each individual in the several 
sets of heirs, ascertain how many times the number of 
persons in each set may be multiplied into the number of 
shares ultimately assigned to each set. Thus 8 x 8 = 64, 
and 5x4 = 20. Here eight will be the share of each 
daughter, and four the share of each paternal uncle, which, 
with the twelve which formed the share of the widow, will 
make up the required number ninety-six. 
===Section VI. OF THE EXCLUSION FROM AND PARTIAL SURRENDER OF INHERITANCE===
84. Exclusion is either entire or partial. By entire 
exclusion is meant, the total privation of right to inherit. 
By partial exclusion is meant, a diminution of the portion 
to which the heir would otherwise be entitled. Entire exclusion is brought about by some of the personal disqualifications enumerated in principle (6), or by the intervention of an heir, in default of whom a claimant would 
have been entitled to take, but by reason of whose intervention he has no right of inheritance. 
85. Those who are entirely excluded by reason of personal disqualification, do not exclude other heirs either 
entirely or partially; but those who are excluded by reason 
of some intervening heir, do, in some instances, partially 
exclude others. 
86. For instance, a man dies, leaving a father, a mother, and two sisters, who are infidels. Here the mother will get her third, notwithstanding the existence of the two infidel sisters, who are excluded by reason of their 
personal disqualification; but had they not been infidels, 
she would only have been entitled to a sixth, although the 
sisters, who partially exclude her, are themselves entirely 
excluded by reason of the intervention of the father. 
87. If one of the heirs choose to surrender his portion 
of the inheritance for a consideration, still he must be 
included in the division. Thus in the case of there being 
a husband, a mother, and a paternal uncle, the shares are 
one-half and one-third. Here, according to principle 64, 
the property must be made into six shares; of which the 
husband was entitled to three, the mother to two, and the 
paternal uncle, as a residuary, to the remaining one. Now 
supposing the estate left to amount to six lacks of rupees, 
and the husband to content himself with two, still, as far 
as affects the mother, the division must be made as if he 
had been a party, and of the remaining four lacks the mother must get two; otherwise, were lie not made a 
party, the mother would get only one- third of four, instead 
of one-third of six lacks as her legal share, and the remainder would go to the uncle as residuary. 
===Section VII. ON THE INCREASE===
88. The increase is where there are a certain number 
of legal sharers, each of whom is entitled to a specific 
portion, and it is found, on a distribution of the 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. 
89. 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. See principles (67, 68, 69). One example will suffice. 
90. A woman leaves a husband, a daughter, and both parents. Here the property should be made into twelve parts, of which, after the husband has taken his fourth or three, and the parents have taken their two-sixths or four, there remain only five shares for the daughter instead of six, or the moiety to which by law she is entitled. In this case the number twelve, into which it was necessary to make the estate, must be increased to thirteen, 
with a view of enabling the daughter to realize six shares 
of the property.
===Section VIII. OF THE RETURN===
91. The return is where there being no residuaries, the 
surplus, after the distribution of the shares, returns to the 
sharers, and the doctrine of it is as follows: 
92. It takes effect in four cases; first, where there is 
only one class of sharers unassociated with those not 
entitled to claim the return, as in the instance of two 
daughters or two sisters; in which case the surplus must 
be made into as many shares as there are sharers, and 
distributed among them equally. 
93. Secondly, where there are two or more classes of 
sharers, unassociated with those not entitled to claim the 
return, as in the instance of a mother and two daughters; 
in which case the surplus must be made into as many 
shares as may correspond with the shares of inheritance to 
which the parties are entitled, and distributed accordingly. 
Thus the mother's share being one-sixth, and the two 
daughters' share two-thirds, the surplus must be made 
into six, of which the mother will take two and the 
daughters four. 
94. Thirdly, when there is only one class of sharers, associated with those not entitled to claim to return, as in ** the instance of three daughters and a husband, in which case the whole estate must be divided into the smallest number of shares of which it is susceptible, consistently with giving the person excluded from the return his share of the inheritance (which is in this case four), and the husband will take one as his legal share or a fourth, the remaining three going to the daughters as their legal 
shares and as the return; but if it cannot be so distributed 
without a fraction, as in the case of a husband and six 
daughters (three not being capable of division among six), 
the proportion must be ascertained between the shares 
and sharers. Thus 3 * 2 = 6, which agreeing in three, 
the rule is, that the number 4, into which the estate was 
intended to be distributed, must be multiplied by 2, 
that is, the measure or a third of the number of those 
entitled to the return. Thus 4*2 = 8, of which the 
husband will take two, and the daughters six, or one 
each; and if on a comparison as above, the result should 
be prime, as in the case of a husband and five daughters, 
the number 4, into which it was intended to distribute 
the estate, must be multiplied by 5, or the whole of the 
number of those entitled to a return. Thus 4 x 5 = 20, 
of which the husband will take five, and the daughters 
fifteen, or three each. 
95. Fourthly, where there are two or more classes 
of sharers, associated with those not entitled to claim the 
return, as in the instance of a widow, four paternal grandmothers, and six sisters by the same mother only; in which case the whole estate must be divided into the smallest number of shares of which it was susceptible, 
consistently with giving the person excluded from the 
return her share of the inheritance (which is in this case 
four). Then after the widow has taken her share, there 
remain three to be divided among the grandmothers and 
half sisters; but the share of the grandmothers is one-sixth, and of the half sisters one-third, and here, to give them their portions, the remainder should be made into 
six: but a third and a sixth of this number, amount to 
three, which agrees with the number to be divided among 
them; of which the half sisters will take two, and the 
grandmothers one. Had there been only one grandmother, 
and only two half sisters, there would have been no neces- 
sity for any further process, as the grandmother would have 
taken one-third, and the two half sisters the other two- 
thirds. But it is obvious, that two shares cannot be dis- 
tributed among the six half sisters nor one among the four 
paternal grandmothers without a fraction. To find the 
number into which the remainder should be made, recourse 
must be had to the seventh principle of distribution. The 
proportion between the shares and the sharers respectively 
must first be ascertained. Thus 2 * 3 = 6, which being 
composite or agreeing in two, and 1 x 3 = 4 1, which 
being prime, the whole of one set of sharers must be com- 
pared with the half of the other. Thus 3 = 4 1, which 
also being prime, one of the numbers must be multiplied 
by the other. Thus 3 x 4 = 12; and having found this 
number it must be multiplied into that of the original 
division. Thus 4 x 12 = 48, of which the grandmothers 
will get 12, or three each, 12 being to 48 as 1 to 4, and 
^he half sisters 24, or 4 each, 24 being to 48 as 2 to 4, 
and the widow will take the remaining twelve. It is 
different if the shares of the persons entitled to a return 
do not agree with the number left for them, after deducting 
the share of the person not entitled to a return, as in the 
case of a widow, nine daughters and six paternal grandmothers. Here the property must in the first instance be made into eight shares, being the smallest number of which 
it is susceptible, consistently with giving the widow her 
share. Then, after the widow has taken her share, there 
remain seven to be divided among the daughters and the 
grandmothers; but the share of the grandmothers is one- 
sixth, and of the daughters two-thirds; and here to give 
them their portions the property divisible among them 
should be made into six parts; but a sixth and two-thirds 
of this number amount to five, which disagrees with the 
number to be divided among them; in which case the rule 
is, that the number of shares of those entitled to a return, 
must be multiplied by the number into which it was 
necessary to make the property originally. Thus 8 x 5 
= 40, of which the widow will take five, the daughters will 
take twenty-eight, and the grandmothers seven. But it is 
obvious, that twenty-eight cannot be distributed among the 
nine daughters, nor seven among the six paternal grand- 
mothers, without a fraction. To find the number into which 
the remainder should be distributed, recourse should be had 
to the sixth principle of distribution. The proportion 
between the shares and the sharers respectively must first 
be ascertained. Thus 9 x 3 = 28 1, and 6 = 7 1, both 
of which being prime, the whole of one set of sharers must 
be compared with the whole of the other set. Thus 6 _ 9 
3, which being concordant, or agreeing in three, the rule 
is that the third of one of the numbers must be multiplied 
into the whole of the other. Thus 3 x 6 =18; and having 
found this number it must be multiplied into that of the pre- 
ceding result. Thus 40 x 18 = 720, of which the daughters 
will get 504, or 56 each, 504 being to 720 as 28 to 40; the 
180 MOHAMMADAN LAW. Chapter I. 
grandmothers will get 126, or 21 each, 126 being to 720 
as 7 to 40; and the- widow will get the remaining ninety. 
===Section IX. OF VESTED INHERITANCES===
96. Where a person dies and leaves heirs, some of 
whom die prior to any distribution of the estate, the 
survivors are said to have vested interests in the inheri- 
tance; in which case the rule is, that the property of the 
first deceased must be apportioned among his several heirs 
living at the time of his death, and it must be supposed 
that they received their respective shares accordingly. 
97. The same process must be observed with reference 
to the property of the second deceased, with this difference, 
that the proportion must be ascertained between the 
number of shares to which the second deceased was 
entitled at the first distribution, and the number into 
which it is requisite to distribute his estate to satisfy 
all the heirs. 
98. If the proportion should appear to be prime, the 
rule is, that the aggregate and individual shares of the pre- 
ceding distribution must be multiplied by the whole number 
of shares into which it is necessary to make the estate, at 
the subsequent distribution, and the individual shares at the 
subsequent distribution must be multiplied by the number 
of shares to which the deceased was entitled at the pre- 
ceding one. 
99. If the proportion should be concordant, or composite, the rule is, that the aggregate and individual shares of the preceding distribution must be multiplied by the 
measure of the number of shares into which it is necessary 
to make the estate at the subsequent distribution; and the 
individual shares at the subsequent distribution must be 
multiplied by the measure of the number of shares to which 
the deceased was entitled at the preceding distribution. 
100. For instance, a man dies leaving A, his wife, 
B and C, his two sons, and D and E, his two daughters; 
of whom A and D died before the distribution, the former 
leaving a mother, and the latter a husband. 
At the first distribution the estate should be made into 
forty- eight shares, of which the widow will get six, the 
sons fourteen each, and the daughters seven each. On 
the death of the widow, leaving a mother and the above 
four children, her estate should, in the first instance, be 
made into thirty- six parts, of which the mother is entitled 
to six, the sons to ten each, and the daughters to five 
each; but being a case of vested inheritance, it becomes 
requisite to ascertain the proportion between the number 
of shares to which she was entitled at the preceding distribution, and the number into which it is necessary to make 
the estate. Thus 6 x 6=36, which proving concordant, 
or agreeing in six, the rule is, that the aggregate and 
individual shares of the preceding distribution be multiplied by six, or the measure of the number of shares into 
which it is necessary to make the estate at the second 
distribution. Thus 48x6 = 288, and 14x6 = 84 and 
7 x 6=42; but the measure of the number to which the 
deceased was entitled at the preceding distribution being 
only one, it is needless to multiply by it the shares at the second distribution. On the death of one of the daughters, 
leaving her two brothers, her sister, and a husband, her 
estate should, in the first instance, be made into ten parts, 
of which her husband is entitled to five, her brothers -to 
two each, and her sister to one; but being a case of vested 
inheritance, it becomes necessary to ascertain the propor- 
tion between the number of shares to which she was 
entitled at the preceding distribution, and the number 
into which it is necessary to make her estate. But she 
derived forty-seven shares from the preceding distributions 
(five at the second and forty- two at the first). Thus 
10 x 4=477, and 7 = 103, and 3=7 4, and 3=41, 
which proving prime or agreeing in a unit only, the rule 
is, that the aggregate and individual shares of the preceding 
distributions be multiplied by ten, or the whole number 
of shares into which it is necessary to make the estate at 
the third distribution. Thus 288 * 10 = 2880, and 84 x 10 
= 840, and 42 x 10 = 420, and 6 x 10 = 60, and 10 x 10 
= 100, and 5 x 10 == 50. Then the shares at the third 
distribution should be multiplied by the number of shares 
to which the deceased sister was entitled at the preceding 
distributions. Thus 5 x 47 = 235, and 2 x 47 = 94, and 
1 x 47 = 47. Therefore, of the 2880 shares, the son B will 
get 840 + 100 + 94 = 1034; the son C 840 + 100 4- 94 
= 1034; the daughter E 420 + 50 + 47 = 517; the mother 
of A 60, and the husband of D 235. 
===Section X. OF MISSING PERSONS AND POSTHUMOUS CHILDREN=== 
101. The property of a missing person is kept in 
abeyance for ninety years. His estate in this interval 
cannot derive any accession from the immediate death 
of others, nor can any person who dies during this interval 
inherit from him. 
102. If a missing person be a coheir with others, the 
estate will be distributed as far as the others are concerned, 
provided they would take at all events, whether the missing 
person were living or dead. Thus in the case of a person 
dying, leaving two daughters, a missing son, and a son and 
daughter of such missing son. In this case the daughters 
will take half the estate immediately, as that must be their 
share at all events; but the grandchildren will not take 
any thing, as they are precluded on the supposition of their 
father being alive. 
103. Where a person dies leaving his wife pregnant, 
and he has sons, the share of one son must be reserved in 
case a posthumous son should be born. 
104. Where a person dies leaving his wife pregnant, 
and he has no sons, but there are other relatives who would 
succeed in the event only of his having no child (as would 
be the case, for instance, with a brother or sister), no immediate distribution of the property takes place. 
105. But if those other relatives would succeed at all events to some portion (larger without than with a child, as would be the, case, for instance, with a mother), the property will be distributed, and the mother will obtain a sixth, the share to which she is necessarily entitled, and afterwards, if the child be not born alive, her portion will be augmented to one-third.
===Section XI. DE COMMORIENTIBUS===
106. Where two or more persons meet with a sudden 
death about the same time, and it is not known which 
died first, it will be presumed according to one opinion, 
that the youngest survived longest; but according to the 
more accurate and prevailing doctrine, it will be presumed 
that the death of the whole party was simultaneous, and 
the property left will be distributed among the surviving 
heirs, as if the intermediate heirs who died at the same 
time with the original proprietor had never existed.The following case may be cited as an example of this rule. A, B and C are grandfather, father, and son. A and B perish at sea. without any particulars of their fate heing known. In this case, if A have other sons, C will not inherit any of his property, because the law recognized no right by representation, and sons exclude grandsons. Mr. Christian in note to Blackstone's Commentaries (vol. ii., p. 516), notices a curious question that was agitated some time ago, where it was contended that when a parent and child perish together, and the priority of their deaths is unknown, it was a rule of the civil law to presume that the child survives the parent. He proceeds, however, to say, " But I should be inclined to think that our courts would require something more than presumptive evidence to support a claim of this nature." Some curious cases de commorientibus may be seen in Causes Celebres, vol. iii., 412 et seq., in one of which where a father and son were slain together in battle and on the same day the daughter became a professed nun, it was determined that her civil death was prior to the death of her father and brother, and that the brother having arrived at the age of puberty, should be presumed to have survived his father.
===Section XII. Of the Distribution of Assets=== 
107. What has preceded relates to the ascertainment 
of the shares to which the several heirs are entitled; 
but when the proper number of shares into which an 
estate should be made, may have been ascertained, it 
seldom happens that the assets of the estate exactly tally 
with such number; in other words, if it be found that 
the estate should be made into ten, or into fifty shares, 
it would seldom happen that the assets exactly amount in 
value to ten or fifty gold mohurs or rupees. To ascertain 
the proper shares of the different sets of heirs and 
creditors in such cases, the following rules are laid 
down: 
108. When the number of shares has been found 
into which the estate should be divided, and the number 
of shares to which each set of heirs is entitled, the 
former number must be compared with the number of 
assets. If these numbers appear to be prime to each 
other, the rule is, that the share of each set of heirs 
must be multiplied into the number of assets, and the 
result divided by the number of shares into which it 
was found necessary to make the estate. For instance, 
a man dies, leaving a widow, two daughters and a paternal uncle, and property to the amount of 25 rupees. In this 
case, the estate should be originally divided into 24, 
of which the widow is entitled to 3, the daughters to 16, 
and the uncle to 5. Now to ascertain what shares of the 
estate left these heirs are entitled to, the above rule must 
be observed. Thus 3 x 25 = 75, and 16 x 25 = 400, and 
5 x 25 =125; but 75 -f- 24 = 3 3 T, and 400 ~ 24 = l&i, 
and 125 -f- 24 = 5/ T. 
109. If the numbers are composite, the rule is that 
the share of each set of heirs must be multiplied into the 
measure of the number of the assets, and the result divided 
by the measure of the number of shares into which it 
was found necessary to make the estate. For instance, a 
man dies, leaving the same number of heirs as above and 
property to the amount of fifty rupees. Now as 24 
and 50 agree in 2 the measure of both numbers is half. 
Thus 3 x 25 = 75, and 16 x 25 = 400, and 5 x 25 = 125; 
but 75 + 12 = 6fV, and 400 -=- 12 = 33 r \, and 125 -:- 12 
110. If it be desired to ascertain the number of 
shares of the assets to which each individual heir is 
entitled, the same process must be resorted to, with this 
difference, that the number of assets must be compared 
with the share originally allotted to each individual 
heir, and the multiplication and division proceeded on 
as above. For instance, in the above case the original 
share of each daughter was 8, and 8 x 25 = 200, and 
200 -^ 12 = 16 T V 
111. In a distribution of assets among creditors the 
rule is, that the aggregate sum of their debts must be the number into which it is necessary to make the estate, 
and the sum of each, creditor's claim must be considered as 
his share. For instance, supposing the debt of one creditor 
to, amount to 16 rupees, of another to 5; and of another 
to 3, and the debtor to have left property to the amount 
of 21 rupees. By observing the same process as that laid 
down in principle (109), it will be found that the creditor 
to whom the debt of sixteen rupees was due, is entitled to 
14 rupees, the creditor of 5 rupees to 4 rupees 6 annas, and 
the creditor of 3 rupees to 2 rupees 10 annas. 
===Section XIII. OF PARTITION===
112. "Where two persons, claim partition of an estate 
which has devolved on them by inheritance, it should be 
granted; and so also where one heir claims it, provided 
the property admit of separation without detriment to its 
utility. 
113. But where the property cannot be separated 
without detriment to its several parts, the consent of all 
the coheirs is requisite; so also where the estate consists 
of articles of different species. 
114. On the occasion of a partition, the property 
(where it does not consist of money) should be distri- 
buted into several distinct shares, corresponding with 
the portions of the coheirs; each share should be ap- 
praised, and then recourse should be had to drawing 
of lots. 
115. Another common mode of partition is by usufruct, 
where each heir enjoys the use or the profits of the 
property by rotation; but this method is subordinate 
to actual partition, and where one coheir demands 
separation, and the other a division of the usufruct only, 
the former claim is entitled to preference in all practicable 
cases. 
==Chapter II. OF INHERITANCE ACCORDING TO THE IMAMIYA, OR SHIA DOCTRINE==
1. According to the tenets of this Sect, the right of 
inheritance proceeds from three different sources. 
2. First, it accrues by virtue of consanguinity. Secondly, 
by virtue of marriage. Thirdly, by virtue of Willa.In a note to his translation of the Hedaya, Mr. Hamilton observes, that "there is no single word in our language fully expressive of this terra. 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. 
3. There are three degrees of heirs who succeed by 
virtue of consanguinity, and so long as there is any one 
of the first degree, even though a female, none of the 
second degree can inherit; and so long as there is any 
one of the second degree, none of the third can inherit. 
4. The first degree comprises the parents, and the 
children, and grandchildren, how low in descent soever, 
the nearer of whom exclude the more distant. Both 
parents, or one of them inherit together with a child, 
a grandchild, or a great-grandchild; but a grandchild does not inherit together with a child, nor a great-grandchild with a grandchild. 
5. This degree is divided into two classes; the roots 
which are limited and the branches which are unlimited. 
The former are the parents who are not represented by 
their parents; the latter are the children who are represented by their children. An individual of one class does 
not exclude an individual of the other, though his relation 
to the deceased be more proximate; but the individuals 
of either class exclude each other in proportion to their 
proximity. 
6. No claimant has a title to inherit with children, but 
the parents, or the husband and wife. 
7. The children of sons take the portions of sons, and 
the children of daughters take the portions of daughters, 
however low in descent. 
8. The second degree comprises the grandfather, and 
grandmother, and other ancestors, and brothers, and 
sisters, and their descendants, however low in descent, 
the nearer of whom exclude the more distant. The 
great-grandfather cannot inherit together with a grandfather or a grandmother; and the son of a brother cannot 
inherit with a brother or a sister, and the grandson of a 
brother cannot inherit with the son of a brother, or with 
the son of a sister. 
9. This degree again is divided into two classes; the 
grandparents and other ancestors, and the brethren and 
their descendants. Both these classes are unlimited, and 
their representatives in the ascending and descending line, 
may be extended ad infinitum. An individual of one class does not exclude an individual of the other, though the 
relation to the deceased be more proximate; but the individuals of either class exclude each other in proportion to 
thjeir proximity. 
10. The third degree comprises the paternal and 
maternal uncles and aunts and their descendants, the 
nearer of whom exclude the more distant. The son of 
a paternal uncle cannot inherit with a paternal uncle, 
or a paternal aunt, nor the son of a maternal uncle with 
a maternal uncle or a maternal aunt. 
11. This degree is unlimited in the ascending and 
descending line, and their representatives may be extended 
ad infinitum; but so long as there is a single aunt or 
uncle of the whole blood, the descendants of such persons 
cannot inherit. Uncles and aunts all share together; 
except some be of the half and others of the whole blood. 
A paternal uncle by the same father only is excluded by a 
paternal uncle by the same father and mother; and the 
son of a paternal uncle by the whole blood excludes a 
paternal uncle of the half blood. 
12. In default of all the heirs above enumerated, the 
paternal and maternal uncles and aunts of the father and 
mother succeed, and in their default their descendants, to 
the remotest generation, according to their degree of 
proximity to the deceased. In default of all those heirs, 
the paternal and maternal uncles and aunts of the grand- 
parents and great- grandparents inherit according to their 
degree of proximity to the deceased.There seems to be some similarity between the order of succession here laid down, and that prescribed in the English Law for taking out letters of administration: "In the first place the children, or on failure of the children, the parents of the deceased, are entitled to the administration; both which indeed are in the first degree; but with us the children are allowed the preference. Then follow brothers, grandfathers, uncles or nephews (and the females of each class respectively), and lastly cousins. The half blood is admitted to the administration as well as the whole, for they are of the indred of the Intestate." Blackstone's Com., vol. ii., p. 504.
13. It is a general rule that the individuals of the 
whole blood exclude those of the half blood who are 
of the same rank; but this rule does not apply to individuals of different ranks. For instance, a brother. or 
sister of the whole blood excludes a brother or sister 
of the half blood: a son of the brother of the whole 
blood, however, does not exclude a brother of the half 
blood, because they belong to different ranks: but he 
would exclude a son of the half brother who is of the 
same rank; so also an uncle of the whole blood does not 
exclude a brother of the half blood, though he does an 
uncle of the half blood. 
14. The principle of the whole blood excluding the 
half blood, is confined also to the same rank, among 
collaterals: for instance, generally a nephew or niece whose 
father was of the whole blood, does not exclude his or her 
uncle or aunt of the half blood; except in the case of there 
being a son of a paternal uncle of the whole blood, and a 
paternal uncle of the half blood by the same father only, 
the latter of whom is excluded by the former. 
15. This principle of exclusion does not extend to 
uncles and aunts being of different sides of relation to 
the deceased; for instance, a paternal uncle or aunt 
of the whole blood does not exclude a maternal uncle or aunt of the half blood; but a paternal uncle or aunt 
of the whole blood excludes a paternal uncle or aunt 
of the half blood, and so likewise, a maternal uncle or 
aunt of the whole blood excludes a maternal uncle or 
aunt of the half blood. 
16. If a man leave a paternal uncle of the half blood, 
and a maternal aunt or* the whole blood, the former will 
take two-thirds in virtue of his claiming through the 
father, and the latter one-third in virtue of her claiming 
through the mother; as the property would have been 
divided between the parents in that proportion, had they 
been the claimants instead of the uncle and aunt. 
17. The general rule, that those related by the same 
father and mother, exclude those who are related by the 
same mother only, does not operate in the case of individuals to whom a legal share has been assigned. 
18. If a man leave a whole sister and a sister by 
the same mother only, the former will take half the 
estate and the latter one- sixth, the remainder reverting 
to the whole sister; and if there be more than one 
sister by the same mother only, they will take one- 
third and the remaining two-thirds will go to the whole 
sister. 
19. Where there are two heirs, one of whom stands 
in a double relation: for instance, if a man die leaving 
a maternal uncle, and a paternal uncle who is also his 
maternal uncle,The relation of paternal and maternal uncle may exist in the same person in the following manner: A having a son C by another wife, marries B having a daughter D by another husband. Then C and D intermarry and have issue, a son E, and A and B have a son F. Thus F is both the paternal and maternal uncle of E. So likewise if a person have a half brother by the same father, and a half sister by the same mother, who intermarry, he will tiecessarily be the paternal and maternal of their issue. the former will take one-third, and the latter two-thirds, and he will be further entitled to take one half of the third which devolved on the maternal uncle; and thus he will succeed altogether to five-sixths, leaving the other but one-sixth. 
20. Secondly, those who succeed in virtue of marriage 
are the husband and wife, who can never be excluded 
in any possible case; and their shares are half for the 
husband, and a fourth for the wife, where there are no 
children, and a fourth for the husband, and an eighth 
for the wife, where there are children. 
21. Where a wife dies, leaving no other heir, her 
whole property devolves on her husband; and where a 
husband dies leaving no other heir but his wife, she is 
only entitled to one-fourth of his property, and the remaining three-fourths will escheat to the public treasury. 
22. If a sick man marry and die- of that sickness 
without having consummated the marriage, his wife 
shall not inherit his estate; nor shall he inherit if his 
wife die before him, under such circumstances. But 
if a sick woman marry, and her husband die before 
her, she shall inherit of him, though the marriage was 
never consummated, and though she never recovered from 
that sickness. 
23. If a man on his death bed divorce his wife, she 
shall inherit, provided he die of that sickness within one 
year from the period of divorce; but not if he lived for 
upwards of a year.
24. In case of a reversible divorce, if the husband die within the period of his wife's probation, or if she die within that period, they have a mutual right to inherit each other's property. 
25. The wife by an usufructuary, or temporary marriage, has no title to inherit.This species of contract is reprobated by the orthodox sect, and they are both considered wholly illegal. See Hamilton's Hedaya, yol. i., p. 71 and 72.
26. Thirdly, those who succeed in virtue of Witta; but they never can inherit so long as there is any claimant by consanguinity or marriage. 
27. Witta is of two descriptions; that which is derived 
from manumission, where the emancipator by such act 
derives a right of inheritance; and that which depends on 
mutual compact, where two persons reciprocally engage, 
each to be heir of the other. 
28. Claimants under the latter title are excluded by 
claimants under the former. 
29. The general rules of exclusion, according to this 
sect, are similar to those contained in the orthodox 
doctrine; except that they make no distinction between 
male and female relations. Thus a daughter excludes 
a son's son, and a maternal uncle excludes a paternal 
grand uncle; whereas according to the orthodox doctrine 
in such cases, the daughter would get only half, and the 
maternal uncle would be wholly excluded by the paternal 
uncle of the father. 
30. Difference of allegiance is no bar to inheritance, and homicide, whether justifiable or accidental, does not operate to exclude from the inheritance. The homicide, to disqualify, must have been of malice prepense. 
31. The legal number of shares into which it is 
necessary to make the property, cannot be increased 
if found insufficient to satisfy all the heirs without a 
fraction. In such case a proportionate deduction will 
be made from the portion of such heir as may, under 
certain circumstances, be deprived of a legal share, or 
from any heir whose share admits of diminution. For 
instance, in the case of a husband, a daughter and 
parents. Here the property must be divided into twelve, 
of which the husband is entitled to three, or a fourth; 
the parents to two-sixths, or four, and the daughter 
to half; but there remain only five shares for her 
instead of six, or the moiety to which she is entitled. 
In this case, according to the orthodox doctrine, the 
property would have been made into thirteen parts to 
give the daughter her six shares; but according to 
the Imamiya tenets, the daughter must be content with 
the five shares that remain, because in certain cases 
her right as a legal sharer is liable to extinction; for 
instance, had there been a son, the daughter would 
not have been entitled to any specific share, and she 
would become a residuary; whereas the husband or 
parents can never be deprived of legal share, under any 
circumstances. 
32. Where the assets exceed the number of heirs the 
surplus reverts to the heirs. The husband is entitled 
to share in the return; but not the wife. The mother 
also is not entitled to share in the return, if there are 
brethren: and where there is any individual possessing a double relation, the surplus reverts exclusively to such individual. 
33. On a distribution of the estate, the elder son, if. he be worthy, is entitled to his father's sword, his Koran, his wearing apparel, and his ring.In the foregoing summary I am not aware that I have omitted any point of material importance. The legal shares allotted to the several heirs are of course the same as those prescribed in the Stini Code, both having the precepts of the Koran as their guide. The rules of distribution and of ascertaining the relative shares of the different claimants are also (mutatis mutandis) the same. It is not worth while to notice in this compilation the doctrines of the Imamiya sect on the law of contracts, or their tenets in miscellaneous matters. A Digest of their laws, relative to those subjects, was some time ago prepared and a considerable part of it translated by an eminent Orientalist (Colonel John Baillie) by whom, however, it was left unfinished; probably from an opinion that the utility of the undertaking might not be commensurate to the time and labour employed upon it,
==Chapter III. OF SALE==
1. Sale is defined to be a mutual and voluntary exchange 
of property for property. 
2. A contract of sale may be effected by the express 
agreement of the parties, or by reciprocal delivery. 
3. Sale is of four kinds; consisting of commutation 
of goods for goods: of money for money: of money for 
goods: and of goods for money; which last is the most 
ordinary species of this kind of contract. 
4. Sales are either absolute, conditional, or imperfect, 
or void. 
5. An absolute sale is that which takes place immediately; there being no legal impediment. 
6. A conditional sale is that which is suspended on 
the consent of the proprietor, or (where he is a minor) 
on the consent of his guardian, in which there is no legal 
impediment, and no condition requisite to its completion 
but such consent. 
7. An imperfect sale is that which takes effect on 
seizin; the legal defect being cured by such seizin. 
8. A void sale is that which can never take effect; in 
which the articles opposed to each other, or one of them, 
not bearing any legal value, the contract is null. 
( 9. The consideration may consist of whatever articles, 
bearing a legal value, the seller and purchaser may agree 
upon; and the property may be sold for prime cost, or for 
more, or for less than prime cost. 
10. It is requisite that there should be two parties 
to every contract of sale, except where the seller and 
purchaser employ the same agent, or where a father or 
a guardian makes a sale on behalf of a minor, or where 
a slave purchases his own freedom by permission of his 
master. 
11. It is sufficient that the parties have a sense of the 
obligation they contract, and a minor, with the consent of 
his guardian, or a lunatic in his lucid intervals, may be 
contracting parties. 
12. In a commutation of goods for goods, or of money 
for money, it is illegal to stipulate for a future period of 
delivery; but in a commutation of money for goods or 
of goods for money, such stipulation is authorised. 
13. It is essential to the validity of every contract 
of sale, that the subject of it, and the consideration, 
should be so determinate as to admit of no future 
contention regarding the meaning of the contracting 
parties. 
14. It is also essential that the subject of the contract should be in actual existence at the period of making 
the contract, or that it should be susceptible of delivery, 
either immediately or at some future definite period. 
15. In a commutation of money for money or of goods 
for goods, if the articles opposed to each, other are of the 
nature of similars, equality in point of quantity is an 
essential condition. 
16. It is unlawful to stipulate for any extraneous 
condition, involving an advantage to either party, or 
for any uncertainty which might lead to future litigation; 
but if the extraneous condition be actually performed, 
or the uncertainty removed, the contract will stand good. 
17. It is lawful to stipulate for an option of dissolving 
the contract; but the term stipulated should not exceed 
three days. 
18. When payment is deferred to a future period, 
it must be determinate and cannot be suspended on an 
event, the time of the occurrence of which is uncertain, 
though its occurrence be inevitable. For instance, it 
is not lawful to suspend payment until the wind shall 
blow, or until it shall rain, nor is it lawful, even 
though the uncertainty be so inconsiderable as almost 
to amount to a fixed term; for instance, it is not lawful 
to suspend payment until the sowing or reaping time. 
19. It is not lawful to sell property in exchange for 
a, debt due from a third party, though it is for a debt due 
from the seller. 
20. A resale of personal property cannot be made by 
the purchaser until the property shall actually have come 
into his possession. 
21. A warranty as to freedom from defect and blemish, 
is implied in every contract of sale. 
22. Where the property sold differs, either with respect to quantity or quality from what the seller nas 
described it, the purchaser is at liberty to recede from the 
contract. 
23. By the sale of land, nothing thereon, which is of a 
transitory nature, passes. Thus the fruit of a tree belongs 
to the seller, though the tree itself, being a fixture, appertains to the purchaser of the land. 
24. Where an option of dissolving the contract has 
been stipulated by the purchaser, and the property sold is 
injured or destroyed in his possession, he is responsible for 
the price agreed upon: but where the stipulation was on 
the part of the seller, the purchaser is responsible for the 
value only of the property. 
25. But the condition of option is annulled by the 
purchaser's exercising any act of ownership, such as to 
take the property out of statu quo. 
26. Where the property has not been seen by the 
purchaser, nor a sample (where a sample suffices), he is at 
liberty to recede from the contract, provided he may not 
have exercised any act of ownership; if upon seeing the 
property it does not suit his expectation, even though no 
option may have been stipulated. 
27. But though the property have not been seen by 
the seller, he is not at liberty to recede from the contract 
(except in a sale of goods for goods), where no option was 
stipulated. 
28. A purchaser who may not have agreed to take the 
property with all its faults, is at liberty to return it to the 
seller on the discovery of a defect, of which he was not 
aware at the time of the purchase, unless while in the hands of the purchaser it received a further blemish; in 
which case he is only entitled to compensation. 
9. But if the purchaser have sold such faulty article 
to a third person, he cannot exact compensation from the 
original seller; unless by having made an addition to 
the article prior to the sale, he was precluded from returning it to the original seller. 
30. In a case where articles are sold, and are found on 
examination to be faulty, complete restitution of the price 
may be demanded from the seller, even though they have 
been destroyed in the act of trial, if the purchaser had 
not derived any benefit from them; but if the purchaser 
had made beneficial use of the faulty articles, he is only 
entitled to proportional compensation. 
31. If a person sell an article which he had purchased, 
and be compelled to receive back such article and to refund 
the purchase money, he is entitled to the same remedy 
against the original seller, if the defect be of an inherent 
nature. 
32. If a purchaser, after becoming aware of a defect 
in the article purchased, make use of the article or attempt 
to remove the defect, he shall have no remedy against 
the seller (unless there may have been some special clause 
in the contract); such act on his part implying acquiescence. 
33. It is a general rule, that if the articles sold are 
of such a nature as not easily to admit of separation or 
division without injury, and part of them, subsequently 
to the purchase, be discovered to be defective, or to be 
the property of a third person, it is not competent to the purchaser to keep a part and to return a part, demanding 
a proportional restitution of the price for the part returned. 
In this case he must either keep the whole, demanding 
compensation for the proportion that is defective, or he 
must return the whole, demanding complete restitution 
of the price. It is otherwise where the several parts may 
be separated without injury. 
34. The practices of forestalling, regrating, and en- 
grossing, and of selling on Friday, after the hour of prayer, 
are all prohibited, though they are valid. 
==Chapter IV. OF SHUFAA, OR PRE-EMPTION==
1. Shufaa, or the right of pre-emption, is defined to 
be a power of possessing property which has been sold, by 
paying a sum equal to that paid by the purchaser. 
2. The right of pre-emption takes effect with regard 
to property sold, or parted with by some means equivalent 
to sale, but not with regard to property the possession 
of which has been transferred by gift, or by will, or by 
inheritance; unless the gift was made for a consideration, 
and the consideration was expressly stipulated; but pre- 
emption cannot be claimed where the donor has received a 
consideration for his gift, such consideration not having 
been expressly stipulated. 
3. The right of pre-emption takes effect with regard to 
property whether divisible or indivisible; but it does not 
apply to moveable property, and it cannot take effect until 
after the sale is complete, as far as the interest of the 
seller is concerned. 
4. The right of pre-emption may be claimed by all 
descriptions of persons. There is no distinction made on 
account of difference of religion. 
5. All rights, and privileges which belong to an ordi- 
nary purchaser, belong equally to a purchaser under the 
right of pre-emption. 
6. The following persons may claim the right of 
pre-emption in the order enumerated: a partner in the 
property sold, a participator in its appendages, and a t 
neighbour. 
7. It is necessary that the person claiming this 
right, should declare his intention of becoming the 
purchaser, immediately on hearing of the sale, and 
that he should, with the least practicable delay, make 
affirmation, by witness, of such his intention, either in 
the presence of the seller, or of the purchaser, or on the 
premises. 
8. The above preliminary conditions being fulfilled, 
the claimant of pre-emption is at liberty at any subsequent 
period to prefer his claim to a Court of Justice.Much difference of opinion prevails as to this point. It seems equitable that there should he some limitation of time to bar a claim of this nature; otherwise a purchaser may be kept in a continual state of suspense. Ziffer and Mohammad are of opinion (and such also is the doctrine according to one tradition of Abti Yusaf), that if the claimant causelessly neglect to advance his claim for a period exceeding one month, such delay shall amount to a defeasance of his right; but according to Abu Hanifa, and another tradition of Abu Yusaf, there is no limitation as to time. This doctrine is maintained in the Fatawa Aulamgiri, in the Mohitu Saruakhsi, and in the Hedaya; and it seems to be the most authentic and generally prevalent opinion. But the compiler of the Fatawa Aulamgiri admits that decisions are given both ways. 
9. The first purchaser has a right to retain the 
property until he has received the purchase money from the claimant by pre-emption, and so also the seller in a case where delivery may not have been 
made. 
10. Where an intermediate purchaser has made any improvements to the property, the claimant by pre-emption 
must either pay for their value, or cause them to be 
removed; and where the property may have been deteriorated by the act of the intermediate purchaser, he (the 
claimant) may insist on a proportional abatement of the 
price; but where the deterioration has taken place without 
the instrumentality of the intermediate purchaser, the 
claimant by pre-emption must either pay the whole price, 
or resign his claim altogether. 
11. But a claimant by pre-emption having obtained 
possession of, and made improvements to property, is 
not entitled to compensation for such improvements, if 
it should afterwards appear that the property belonged 
to a third person. He will, in this case, recover the price 
from the seller or from the intermediate purchaser (if 
possession had been given), and he is at liberty to remove 
his improvements. 
12. Where there is a dispute between the claimant by 
pre-emption and the purchaser, as to the price paid, and 
neither party have evidence, the assertion, on oath, of the 
purchaser must be credited; but where both parties have 
evidence, that of the claimant by pre-emption should be 
received in preference. 
13. There are many legal devices by which the right 
of pre-emption may be defeated. For instance, where a 
mail fears that his neighbour may advance such a claim, he can sell all his property with the exception of that part 
immediately bordering on his neighbour's; and where he 
is apprehensive of the claim being advanced by a partner, 
he, may, in the first instance, agree with the purchaser for 
some exorbitant nominal price, and afterwards commute 
that price for something of an inferior value; when, if a 
claimant by pre-emption appear, he must pay the price 
first stipulated, without reference to the subsequent commutation.
==Chapter V. OF GIFTS==
1. A gift is defined to be the conferring of property 
without a consideration. 
2. Acceptance and seizin, on the part of the donee, 
are as necessary as relinquishment on the part of the 
donor. 
3. A gift cannot be made to depend on a contingency, 
nor can it be referred to take effect at any future definite 
period. 
4. It is necessary that a gift should be accompanied 
by delivery of possession, and that seizin should take effect 
immediately, or, if at a subsequent period, by desire of the 
donor. 
5. A gift cannot be made of any thing to be produced 
in futuro; although the means of its production may 
be in the possession of the donee. The subject of the 
gift must be actually in existence at the time of the 
donation. 
6. The gift of property which is undivided, and mixed 
with other property, admitting at the same time of division or separation, is null and void, unless it be defined previous 
to delivery; for delivery of the gift cannot in that case 
be made without including something which forms no part 
of the gift. 
7. In the case of a gift made to two or more donees, the 
interest of each donee must be denned either at the time 
of making the gift, or on delivery. 
8. A gift cannot be implied. It must be express and 
unequivocal, and the intention of the donor must be 
demonstrated by his entire relinquishment of the thing 
given, and the gift is null and void where he continues to 
exercise any act of ownership over it. 
9. The cases of a house given to a husband by a wife, 
and of property given by a father to his minor child, form 
exceptions to the above rule. 
10. Formal delivery and seizin are not necessary in 
the case of a gift to a trustee, having the custody of the 
article given, nor in the case of a gift to a minor. The 
seizin of the guardian in the latter case is sufficient. 
11. A gift on a deathbed is viewed in the light of a 
legacy, and cannot take effect for more than a third of the 
property; consequently no person can make a gift of any 
part of his property on his deathbed to one of his heirs, it 
not being lawful for one heir to take a legacy without the 
consent of the rest. 
12. A donor is at liberty to resume his gift, except in 
the following instances: 
13. A gift cannot be resumed where the donee is a relation; nor where anything has been received in return; nor where it has received any accession; nor where it has come into possession of a second donee, or into that of the 
I heirs of the first. 
14. Besides the ordinary species of gift, the law 
enumerates two contracts under the head of gifts, which 
however more nearly resemble exchange or sale. They 
are technically termed Hiba bil Iwaz, mutual gift, or gift 
for a consideration, and Hiba ba shart ul Iwaz, gift on 
stipulation, or on promise of a consideration. 
15. Hiba bil Iwaz is said to resemble a sale in all its 
properties; the same conditions attach to it, and the 
mutual seizin of the donees is not, in all cases, necessary. 
16. Hiba ba shart ul Iwaz, on the other hand, is said 
to resemble a sale in the first stage only; that is, before 
the consideration for which the gift is made has been 
received, and the seizin of the donor and donee is therefore a requisite condition. 
==Chapter VI. OF WILLS==
1. There is no preference shown to a written over a 
nuncupative will, and they are entitled to equal weight, 
whether the property which is the subject of the will be 
real or personal. 
2. Legacies cannot be made to a larger amount than 
one-third of the testator's estate without the consent of 
the heirs. 
3. A legacy cannot be left to one of the heirs without 
the consent of the rest. 
4. There is this difference between the property which 
is the subject of inheritance and that which is the subject 
of legacy. The former becomes the property of the heir 
by the mere operation of law; the other does not become 
the property of the legatee until his consent shall have 
been obtained either expressly or impliedly. 
5. The payment of legacies to a legal amount precedes 
the satisfaction of claims of inheritance. 
6. All the debts due by the testator must be liquidated 
before the legacies can be claimed. 
7. An acknowledgment of debt in favour of an heir 
on a deathbed resembles a legacy; inasmuch as it does 
not avail for more than a third of the estate. 
8. It is not necessary that the subject of the lega.cy 
should exist at the time of the execution of the will. 
It is sufficient for its validity that it should be in existence 
at the time of the death of the testator. 
9. The general validity of a will is not affected by its 
containing illegal provisions, but it will be carried into 
execution as far as it may be consistent with law. 
10. A person not being an heir at the time of the 
execution of the will, but becoming one previous to the 
death of the testator, cannot take the legacy left to him by 
such will; but a person being an heir at the time of the 
execution, and becoming excluded previously to the 
testator's death, can take the legacy left to him by such 
will. 
11. If a man bequeath property to one person, and 
subsequently make a bequest of the same property to 
another individual, the first bequest is annulled; so also 
if he sell or give the legacy to any other individual; even 
though it may have reverted to his possession before his 
death, as these acts amount to a retractation of the 
legacy. 
12. Where a testator bequeaths more than he legally 
can to several legatees, and the heirs refuse to confirm his 
disposition, a proportionate abatement must be made in all 
the legacies. 
13. "Where a legacy is left to an individual, and subsequently a larger legacy to the same individual, the larger legacy will take effect; but where the larger legacy was prior to the smaller one, the latter only will take 
effect. 
14. A legacy being left to two persons indiscriminately* if one of them die before the legacy is payable, the whole will go to the survivor; but if half was left to each of them, the survivor will get only half, and the remaining 
moiety will devolve on the heirs; so also in the case of an heir and stranger being left joint legatees. 
15. Where there is no executor appointed, the father or the grandfather may act as executor, or in their default their executors. 
16. A Mohammadan should not appoint a person of a 
different persuasion to be his executor, and such appoint- 
ment is liable to be annulled by the ruling power. 
17. Executors having once accepted cannot subsequently decline the trust. 
18. Where there are two executors, it is not competent 
to one of them to act singly, except in cases of necessity, 
and where benefit to the estate must certainly accrue. 
==Chapter VII. OF MARRIAGE, DOWER, DIVORCE, AND PARENTAGE==
1. Marriage is defined to be a contract founded on the 
intention of legalizing generation. 
2. Proposal and consent are essential to a contract of 
marriage. 
3. The conditions are discretion, puberty, and freedom 
of the contracting parties. In the absence of the first 
condition, the contract is void db initio; for a marriage 
cannot be contracted by an infant without discretion, nor 
by a lunatic. In the absence of the two latter conditions 
the contract is voidable; for the validity of marriages contracted by discreet minors, or slaves, is suspensive on the 
consent of their guardians or masters. It is also necessary 
that there should be no legal incapacity on the part of the 
woman; that each party should know the agreement of 
the other; that there should be witnesses to the contract, 
and that the proposal and acceptance should be made at 
the same time and place. 
4. There are only four requisites to the competency of witnesses to a marriage contract; namely, freedom, discretion, puberty, and profession of the Musalman faith. 
5. Objections as to character and relation do not apply to witnesses in a contract of marriage as they do in other 
contracts. 
6. A proposal may be made by means of agency, or by 
letter; provided there are witnesses to the receipt of the 
message or letter, and to the consent on the part of 
the person to whom it was addressed. 
7. The effect of a contract of marriage is to legalize 
the mutual enjoyment of the parties; to place the wife 
under the dominion of the husband; to confer on her 
the right of dower, maintenance,The right of a wife to maintenance is expressly recognized: so much so, that if the husband be absent and have not made any provision for his wife, the Law will cause it to be made out of his property; and in case of divorce, the wife is entitled to maintenance during the period of her probation. and habitation; to 
create between the parties, prohibited degrees of relation 
and reciprocal right of inheritance; to enforce equality 
of behaviour towards all his wives on the part of the 
husband, and obedience on the part of the wife, and to 
invest the husband with a power of correction in cases 
of disobedience. 
8. A freeman may have four wives, but a slave can 
have only two. 
9. A man may not marry his mother, nor his grandmother, nor his mother-in-law, nor his step-mother, nor his step- grandmother, nor his daughter, nor his granddaughter, nor his daughter-in-law, nor his granddaughter-in-law, nor his step-daughter, nor his sister, nor his foster-sister, nor his niece, nor his aunt, nor his nurse. 
10. Nor is it lawful for a man to be married at the 
same time to any two women who stand in such a degree 
of relation to each other, as that, if one of them had been 
a male, they could not have intermarried. 
11. Marriage cannot be contracted with a person who 
is a slave of the party; but the union of a freeman with a 
slave, not being his property, with the consent of the 
master of such slave, is admissible, provided he be not 
already married to a freewoman. 
12. Christians, Jews, and persons of other religions, believing in one God, may be espoused by Mohammadans. 
13. Marriage will be presumed, in a case of proved 
continual cohabitation, without the testimony of witnesses; 
but the presence of witnesses is nevertheless requisite at all 
nuptials. 
14. A woman having attained the age of puberty, may contract herself in marriage with whomsoever she pleases; and her guardian has no right to interfere if the match be equal. 
15. If the match be unequal, the guardians have a right to interfere with a view to set it aside. 
16. A female not having attained the age of puberty, cannot lawfully contract herself in marriage without the consent of her guardians, and the validity of the contract entirely depends upon such consent. 
17. But in both the preceding cases the guardians should, interfere before the birth of issue. 
18. A contract of marriage entered into by a father 
or grandfather, on behalf of an infant, is valid and bind- 
ing, and the infant has not the option of annulling it 
oa attaining maturity; but if entered into by any other 
guardian, the infant so contracted may dissolve the 
marriage on coming of age, provided that such delay 
does not take place as may be construed into acqui- 
escence. 
19. Where there is no paternal guardian, the maternal 
kindred may dispose of an infant in marriage; and in 
default of maternal guardians the government may supply 
their place. 
20. A necessary concomitant of a contract of marriage is dower, the maximum of which is not fixed, but the minimum is ten dirms,The value of the dirm is very uncertain. Ten dirms according to one account make about six shillings and eight pence sterling. See note to Hamilton's translation of the Hedaya, p. 122, vol. i. and it becomes due on the consummation of the marriage (though it is usual to stipulate for delay as to the payment of a part) or on the death of 
either party or on divorce. 
21. Where no amount of dower has been specified, the woman is entitled to receive a sum equal to the average rate of dower granted to the females of her father's family. 
22. Where it may not have been expressed whether 
the payment of the dower is to be prompt or deferred, it 
must be held that the whole is due on demand. 
23. It is a rule that whatsoever is prohibited by 
reason of consanguinity is prohibited by reason of fosterage; but as far as marriage is concerned, there are 
one or two exceptions to this rule: for instance, a man 
may marry his sister's foster-mother, or his foster-sister's 
mother, or his foster-son's sister, or his foster-brother's 
sister. 
24. A husband may divorce his wife without any misbehaviour on her part, or without assigning any cause; but before the divorce becomes irreversible, according to the more approved doctrine, it must be repeated three times, and between each time the period of one month must have intervened, and in the interval he may take her back either in an express or implied manner. 
25. A husband cannot again cohabit with his wife who has been three times irreversibly divorced, until after she shall have been married to some other individual and separated from him either by death or divorce; but this is not necessary to a reunion, if she have been separated by only one or two divorces. 
26. If a husband divorce his wife on his death-bed, 
she is nevertheless entitled to inherit, if he die before the 
expiration of the term (four months and ten days) of 
probation, which she is bound to undergo before contracting a second marriage. 
27. A vow of abstinence made by a husband, and 
maintained inviolate for a period of four months, amounts 
to an irreversible divorce.There is recognised a species of reversible divorce, which is effected by the husband comparing his wife to any member of his mother, or some other relation prohibited to him, which must be expiated by emancipating a slave, by alms or by fasting. This divorce is technically termed Zihar. Hedaya, book iv., chap. ix.
28. A wife is at liberty, with her husband's consent, 
to purchase from him her freedom from the bonds of 
marriage. 
29. Another mode of separation is by the husband's 
making oath, accompanied by an imprecation as to his 
wife's fidelity, and if he in the same manner deny the 
parentage of the child of which she is then pregnant, it 
will be bastardized. 
30. Established impotency is also a ground for admitting a claim to separation on the part of the wife. 
31. A child born six months after marriage is considered to all intents and purposes the offspring of the husband; so also a child born within two years after the death of her husband or after divorce. 
32. The first born child of a man's female slave is 
considered his offspring, provided he claim the parentage, 
but not otherwise: but if after his having claimed the 
parentage of one, the same woman bear another child to 
him, the parentage of that other will be established without any claim on his part. 
33. If a man acknowledge another to be his son, and there be nothing which obviously renders it impossible that such relation should exist between them, the parentage will be established. 
==Chapter VIII. OF GUARDIANS AND MINORITY==
1. All persons, whether male or female, are considered minors until after the expiration of the sixteenth year, unless symptoms of puberty appear at an earlier period. 
2. There is a subdivision of the state of minority, though not so minute as in the Civil Law, the term minor being used indiscriminately to signify all persons under the age of puberty; but the term Sdbi is applied to persons in a state of infancy, and the term Murahik to those who have nearly attained puberty."The great distinction was therefore into majors and minors; but minors were again subdivided into Puberes and Impuberes; and Impuberes again underwent a subdivision into Infantes and Impuberes" Summary of Taylor's Eoman Law, p. 124. In the Mohammadan Law a person after attaining majority is termed Shab till the age of thirty-four years; he is termed Eohal until the age of fifty-one, and Sheikh for the remainder of his life.
3. Minors have not different privileges at different 
stages of their minority, as in the English law.The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion he actually proved, may make his testament of his personal estate; at seventeen may be an executor, and at twenty-one is at his own disposal, and may alienate his lands, goods, and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to a dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executress; and at twenty-one may dispose of herself and her lands. See Blackstone's Com., vol. i., p. 463. 
4. Guardians are either natural or testamentary. 
5. They are also near and remote. Of the former 
description are fathers and paternal grandfathers and their 
executors -and the executors of such executors. Of the 
latter description are the more distant paternal kindred, 
and their guardianship extends only to matters connected 
with the education and marriage of their wards. 
6. The former description of guardians answers to the 
term of curator in the Civil Law, and of manager in the 
Bengal Code of Regulations; having power over the 
property of a minor for purposes beneficial to him; and in 
their default this power does not vest in the remote guardians, but devolves on the ruling authority. 
7. Maternal relations are the lowest species of guardians, as their right of guardianship for the purposes of education and marriage takes effect only where there may be no paternal kindred nor mother. 
8. Mothers have the right (and widows durante viduitate) to the custody of their sons until they attain the age of seven years, and of their daughters until they attain the age of puberty. 
9. The mother's right is forfeited by marrying a stranger, but reverts on her again becoming a widow. 
10. The paternal relations succeed to the right of 
guardianship, for the purposes of education and marriage, 
in proportion to the proximity of their claims to inherit 
the estate of the minor. 
11. Necessary debts contracted by any guardian for 
the support or education of his ward must be discharged 
by him on his coming of age. 
12. A minor is not competent sui juris to contract 
marriage, to pass a divorce, to manumit a slave, to make a 
loan, or contract a debt, or to engage in any other transaction of a nature not manifestly for his benefit, without the 
consent of his guardian. 
13. But he may receive a gift, or do any other act 
which is manifestly for his benefit. 
14. A guardian is not at liberty to sell the immoveable 
property of his ward, except under seven circumstances, 
viz. 1st, where he can obtain double its value; 2ndly, 
where the minor has no other property, and the sale of it 
is absolutely necessary to his maintenance; 3rdly, where 
the late incumbent died in debt which cannot be liquidated 
but by the sale of such property; 4thly, where there are 
some general provisions in the will which cannot be 
carried into effect without such sale; 5thly, where the 
produce of the property is not sufficient to defray the 
expenses of keeping it; 6thly, where the property may be in danger of being destroyed; 7thly, where it has been 
usurped, and the guardian has reason to fear that there is no chance of fair restitution. 
15. Every contract entered into by a near guardian on 
behalf and for the benefit of the minor, and every contract 
entered into by a minor with the advice and consent of his 
near guardian, as far as regards his personal property, is 
valid and binding upon him; provided there be no circumvention or fraud on the face of it. 
16. Minors are civilly responsible for any intentional 
damage or injury done by them to the property or interests 
of others, though they are not liable in criminal matters to 
retaliation or to the ultimum supplicium, but they are liable 
to discretionary chastisement and correction. 
==Chapter IX. OF SLAVERY==
1. There are only two descriptions of persons recognized as slaves under the Mohammadan Law. First, 
infidels made captive during war; and secondly, their 
descendants. These persons are subjects of inheritance, 
and of all kinds of contracts, in the same manner as other 
property. 
2. The general state of bondage is subdivided into two 
classes, and slavery may be either entire or qualified, 
according to circumstances. 
3. Qualified slaves are of three descriptions: the 
Mukdtib; the Mudabbir, and the Um-i-walad. 
4. A Mukdtib slave is he between whom and his master 
there may have been an agreement for his ransom, 
on the condition of his paying a certain sum of money, 
either immediately, or at some future time, or by instalments. 
5. If he fulfil the condition he will become free; 
otherwise he will revert to his former unqualified state 
of bondage. In the mean time his master parts with the possession of, but not with the property in him. He 
is not, however, in the interval a fit subject of sale, gift, 
pledge or hire. 
6. A Mudablir slave is he to whom his master has 
promised post-obit emancipation; such promise however 
may be made absolutely, or with limitation; in other 
words the freedom of the slave may be made to depend 
generally on the death of his master, whenever that 
event may happen: or it may be made conditionally, to 
depend on the occurrence of the event within a specified 
period. 
7. This description of slave is not a fit subject of sale 
or gift, but labour may be exacted from him and he may 
be let out to hire, and in the case of a female she may be 
given in marriage. Where the promise was made absolutely, the slave becomes free on the death of the master, 
whenever that event may happen; and, where made 
conditionally, if his death occurred within the period 
specified. 
8. The general law of legacies and debts is applicable 
to this description of slaves, they being considered as 
much the right of heirs as any other description of 
property: consequently they can only be emancipated 
to the extent of one-third of the value of their persons, 
where the master leaves no other property; and they must 
perform emancipatory labour for the benefit of the heirs to 
the extent of the other two-thirds; and where the master 
dies insolvent, they do not become free until, for the benefit 
of the deceased's creditors, they have earned by their 
labour property to the full amount of their value. 
9. An TTm-i-walad is a female slave who has borne a child or children to her master. 
10. The law is the same regarding this description of 
slave as regarding the Muddbbir, with this difference in her 
favour, that she is emancipated unconditionally on the death 
of her master; whether he may or may not have left other 
assets, or whether he may have died in a state of insolvency 
or otherwise. But it should he observed that the parentage 
of such slave is not established in her master unless he 
acknowledge the first born. 
11. Slaves labour under almost every species of incapacity. They cannot marry without the consent of their 
masters. Their evidence is not admissible, nor their acknowledgments (unless they are licensed) in matters relative 
to property. They are not generally eligible to fill any 
civil office in the state, nor can they be executors, sureties 
or guardians (unless to the minor children of their masters 
by special appointment) nor are they competent to make a 
gift or sale, nor to inherit or bequeath property. 
12. But, as some counterpoise to these disqualifications, 
they are exempted from many obligations of freedom. 
They are not liable to be sued except in the presence 
of their masters; they are not subject to the payment 
of taxes, and they cannot be imprisoned for debt. In 
criminal matters the indulgences extended to them are 
more numerous. 
13. Any description of slave however may be licensed, 
either for a particular purpose or generally for commercial 
transactions; in which case they are allowed to act to the 
extent of their license. 
14. Masters may compel their slaves to marry. Unqualified slaves may be sold to make good their wives' dower and maintenance, and qualified slaves may be com- 
pelled to labour for the same purposes. A man cannot marry a female slave so long as he has a free wife; nor can he under any circumstances marry his own slave girl, nor can a slave marry his mistress. 
15. Persons who stand reciprocally related within the 
prohibited degrees cannot be the slaves of each other. 
16. Where issue has been begotten between the male 
slave of one person and the female slave of another, the 
maxim of partus sequitur ventrem applies, and the former 
has no legal claim to the children so begotten. 
17. It is a question how far the sale of a man's own 
person is lawful when reduced to extreme necessity. It 
is declared justifiable in the Mohit-u-sarakhsi, a work of 
unexceptionable authority. But while deference is paid 
to that authority, by admitting the validity of the sale, 
it is nevertheless universally contended that it should be 
cancelled on the application of the slave, and that he 
should be compelled by his labour to refund the value 
of what he had received from his purchaser. 
18. It is admitted however by all authorities that a 
person may hire himself for any time, even though it 
amount to servitude for life; but minors so hired may 
annul the contract on attaining majority. 
==Chapter X. OF ENDOWMENTS==
1. An endowment signifies the appropriation of 
property to the service of God; when the right of the 
appropriator becomes divested, and the profits of the 
property so appropriated are devoted to the benefit of 
mankind. 
2. An endowment is not a fit subject of sale, gift, or 
inheritance; and if the appropriation is made in extremis, 
it takes effect only to the extent of a third of the property 
of the appropriator. Undefined property is a fit subject 
of endowment. 
3. Endowed property may be ' sold by j udicial authority, 
when the sale may be absolutely necessary to defray the 
expense of repairing its edifices or other indispensable 
purposes, and where the object cannot be attained by 
farming or other temporary expedient. 
4. In case of the grant of an endowment to an individual with reversion to the poor, it is not necessary 
that the grantees specified shall be in existence at the 
time. For instance, if the grant be made in the name 
of the children of A with reversion to the poor, and A 
should prove to have no children, the grant would nevertheless be valid, and the profits of the endowment will be 
distributed among the poor. 
5. The ruling power cannot remove the superintendent 
of an endowment appointed by the appropriator, unless on 
proof of misconduct; nor can the appropriator himself 
remove such person, unless the liberty of doing so may 
have been specially reserved to him at the time of his 
making the appropriation. 
6. Where the appropriator of an endowment may not 
have made any express provision as to who shall succeed 
to the office of superintendent on the death of the person 
nominated by himself, and he may not have left an 
executor, such superintendent may, on his deathbed, ap- 
point his own successor, subject to the confirmation of the 
ruling power. 
7. The specific property endowed cannot be exchanged 
for other property, unless a stipulation to this effect may 
have been made by the appropriator, or unless circumstances should render it impracticable to retain possession 
of the particular property, or unless manifest advantage be 
derivable from the exchange; nor should endowed lands 
be farmed out on terms inferior to their value, nor for a 
longer period than three years, except when circumstances 
render such measure absolutely necessary to the preservation of the endowment. 
8. The injunctions of the appropriator should be observed except in the following cases: If he stipulate that 
the superintendent shall not be removed by the ruling 
authorities, such person is nevertheless removable by 
them on proof of misconduct. If he stipulate that the 
appropriated lands shall not be let out to farm for a longer 
period than one year, and it be difficult to obtain a tenant for so short a period or, by making a longer lease, it be 
better calculated to promote the interests of the establish- 
ment, the ruling authorities are at liberty to act without 
the consent of the superintendent. If he stipulate that 
the excess of the profits be distributed among persons who 
beg for it in the mosque, it may nevertheless be distributed 
in other places and among the necessitous, though not 
beggars. If he stipulate that daily rations of food be 
served out to the necessitous, the allowance may neverthe- 
less be made in money. The ruling authorities have power 
to increase the salaries of the omcers attached to the en- 
dowment, when they appear deserving of it, and the 
endowed property may be exchanged, when it may seem 
advantageous, by order of such authorities; even though 
the appropriate may have expressly stipulated against an 
exchange. 
9. "Where an appropriator appoints two persons joint 
superintendents, it is not competent to either of them to act 
separately; but where he himself retains a moiety of the 
superintendence, associating another individual, he (the appropriator) is at liberty to act singly and of his own authority in his self-created capacity of joint superintendent. 
10. Where an appropriation has been made by the 
ruling power, from the funds of the public treasury, for 
public purposes, without any specific nomination, the 
superintendence should be entrusted to some person most 
deafer ving in point of learning; but in private appropria- 
tions, with the exceptions above mentioned, the injunctions 
of the founder should be fulfilled. 
==Chapter XI. OF DEBTS AND SECURITIES==
1. Heirs are answerable for the debts of their ancestors, as far as there are assets. 
2. The payment of debts acknowledged on a deathbed must be postponed until after the liquidation of those contracted in health, unless it be notorious that the former 
were lona; fide contracted; and a deathbed acknowledgement of a debt in favour of an heir is entirely null and 
void, unless the other heirs admit that it is due. 
3. If two persons jointly contract a debt and one of 
them die, the survivor will be held responsible for a 
moiety only of the debt; unless there was an express 
stipulation that each should be liable for the whole amount: for the law presumes that each were equal participators in the profits of the loan, and that one should 
not be responsible for the share of advantage acquired by 
the other. 
4. So also where two persons are joint sureties for the 
payment of a debt, if one of them die, the survivor will not be considered as surety for the whole, and that the one should be surety for the other, 
5. It is different where two partners are engaged in 
traffic, contributing the same amount in capital, and beiijg 
equal in all respects, in which case the one partner is 
responsible for all acts done and for all debts contracted 
by the other. But this is not the case with regard to 
other partnerships, in which case a creditor of the concern 
cannot claim the whole debt from any one of the partners 
severally, but must either come upon the whole collectively, or if he prefer his claim against any one individual 
partner, it must be only to the extent of his share. 
6. Necessary debts contracted by a guardian on account 
of his ward must be discharged by the latter on his coming 
of age. 
7. A general inhibition cannot be laid on a debtor to 
exclude him entirely from the management of his own 
affairs; but he may be restrained from entering into such 
contracts as are manifestly injurious to his creditor. 
8. If a debtor, on being sued, acknowledge the debt, 
he must not be immediately imprisoned, but if he deny, 
and it be established by evidence, he should be committed forthwith to jail. 
9. If, after judgment, there should be any procrastination on the part of a debtor who has been suffered to go at 
large, and he may have received a valuable consideration 
for the debt, or if it be a debt on beneficial contract, he 
should be committed to jail notwithstanding he plead 
poverty. 
10. But if the debt had been contracted gratuitously and without any valuable consideration having been received (as in the case of a debt contracted by a surety on account of his principal), the debtor should not be imprisoned unless the creditor can establish his solvency. 
11. It is left discretionary with the judicial authorities to determine the period of imprisonment in cases of 
apparent insolvency. 
12. But the liberation of a debtor does not exempt 
him from all future pursuit by his creditors. They may 
cause his arrest at a subsequent period, on proof of his 
ability to discharge the debt. 
13. In the attachment and sale of property belonging 
to a debtor, great caution is prescribed. In the first place, 
his money should be applied to the liquidation of his debt; 
next, his personal effects, and last of all his houses and 
lands. 
14. There is no distinction between mortgages of lands and pledges of goods. 
15. Hypothecation is unknown to the Mohammadan Law, and seizin is a requisite condition of mortgage. 
16. The creditor is not at liberty to alienate and sell 
the mortgage or pledge at any time, unless there was an 
express agreement to that effect between him and the 
debtor, as the property mortgaged is presumed to be 
equivalent to the debt, and as the debt cannot receive any 
accession, interest being prohibited. 
17. It is a general rule that the pawnee is chargeable 
with the expense of providing for the custody, and the 
pawner with the expense of providing for the support of 
the thing pledged; for instance, in the case of a pledge of a horse, it is necessary that the pawner should provide his 
food, and the pawnee his stable. 
18. Where property may have been pawned or mortgaged in satisfaction of a debt, it is not lawful for the 
pawnee or mortgagee to use it without the consent of the 
pawner or mortgager, and if he do so, he is responsible for 
the whole value. 
19. Where such property, being equivalent to the 
debt, may have been destroyed otherwise than by the act 
of the pawnee or mortgagee, the debt is extinguished; 
where it exceeds the debt, the pawnee or mortgagee is not 
responsible for the excess, but where it falls short of the 
debt, the deficiency must be made up by the pawner or 
mortgager; but if the property were wilfully destroyed by 
the act of the pawnee or mortgagee, he will be responsible 
for any excess of its value beyond the amount of the debt. 
20. If a person die, leaving many creditors, and he 
may have pawned or mortgaged some property to one of 
them, such creditor is at liberty to satisfy his own debt out 
of the property of the deceased debtor, which is in his own 
possession, to the exclusion of all the other creditors. 
==Chapter XII. Of Claims and Judicial Matters==
1. There is no rule of limitation to bar a claim of 
right according to the Mohammadan Law.In the Bahr-u-rayik an opinion is cited from the Mabsut, to the effect that if a person causelessly neglect to advance his claim for a period of hirty-three years, it shall not he cognizable in a court of justice; but this opinion is adverse to the received legal doctrine. 
2. A claim founded on a verbal engagement is of equal 
weight with a claim founded on a written engagement. 
3. Informality in a deed does not vitiate a contract 
founded thereon, provided the intention of the contracting 
parties can otherwise be clearly ascertained. 
4. The general rule with respect to all claims is that 
priority in point of time confers superiority of right, 
5. Where the priority of either cannot be ascertained, 
a claim founded on purchase is entitled to the preference 
over a claim founded on gift. 
6. Contracts are not dissolved generally by the death 
of one of the contracting parties, but they devolve on the 
representatives as far as there are assets; unless the 
subject of the contract be of a personal nature, such for 
instance, as in the case of a lease, if either the landlord or 
the farmer die, the contract ceases on the occurrence of 
that event. 
7. So also in the case of partnership and joint concerns of any description, where the surviving partners are 
not bound to continue in business with the heirs of the 
deceased partner, and vice versa; and the obligation is 
extinguished, as well by civil as by natural death. 
8. Oaths are not administered to witnesses. 
9. In civil claims the evidence of two men, or one man 
and two women is generally requisite. 
10. Slaves, minors and persons convicted of slander 
are not competent witnesses. 
11. The evidence of a father or grandfather, in favour 
of his son or his grandson, and vice versa; of a husband in 
favour of his wife, and vice versa, and of a servant in 
favour of his master, and vice versa, is not admissible. 
12. Nor is the evidence of a partner admissible in 
matters affecting the joint concern. 
13. In matters which fall peculiarly within the province of women, female evidence is admissible, uncorroborated by male testimony. 
14. Hearsay evidence is admissible to establish birth, 
death, marriage, cohabitation, and the appointment of a 
Kazi; as the eyewitnesses to such transactions are frequently not forthcoming. 
15. No respect is paid to any superiority in the number 
of witnesses above the prescribed number adduced in 
support of a claim. 
16. The evidence of witnesses which tends to establish 
the plaintiff's claim to any thing not contained in his own 
statement, must be rejected; for instance, if any of his 
witnesses depose to a larger sum being due to him than 
that claimed by himself. 
17. The evidence of witnesses which tends to establish 
the plaintiff's claim on a ground different from that 
alleged by himself, must be rejected; for instance, if the 
plaintiff were to claim by purchase and his witnesses were 
to depose to his claim being founded on gift. 
18. Where a debt is claimed, and some of the witnesses 
depose to the debt of the whole sum claimed and others to 
a part of it only, the plaintiff is entitled to such part only 
of the sum claimed. 
19. Where a defendant pleads the general issue, the 
onus probandi rests on the plaintiff. 
20. Where a plea contains defensive matter, such as 
payment or satisfaction, the onus probandi rests on 
the defendant; the rule being the same as in the 
Civil Law, that in every issue the affirmative is to be 
proved. 
21. A defendant may in some cases plead both the general issue and a special plea, where they are not inconsistent; and the onus probandi in such case rests on the plaintiff, where the special plea is not necessary to the defence; for instance, a man sues another for half an estate, alleging that he was born in wedlock of the same father and mother as the defendant. Here the defendant may deny the allegation generally and at the same time plead that the defendant was born of a different family. 
22. A claim is not admissible which may be repugnant 
to a former claim, both of which cannot stand; for instance, 
a person in a former suit having denied that a certain 
individual was his brother, cannot subsequently claim 
the inheritance of that person on the plea of such relation. 
23. But if the claim be at variance with a former one, 
and they can both consistently stand, it is admissible; 
for instance, a claim having been advanced to property in 
virtue of purchase, the same property may be claimed 
by the same person in virtue of inheritance, but if the 
claim of inheritance had been prior, a subsequent claim of 
purchase is not admissible; as it is manifest that they 
cannot both consistently stand.At first sight there might appear to be a distinction without a difference in this case; but the reason of the rule is that an heir might consistently make a purchase of property which had not devolved, but of which he was in expectancy. But it is contrary to all probability that he should have purchased, after the demise of the ancestor, property to which he had represented himself actually entitled in virtue of inheritance. 
24. If a man adduce a claim and have no evidence to 
support it, the general rule is, that the defendant must be 
put to his oath, and if he decline swearing, judgment 
should be given for the plaintiff; but if he deny on oath, 
he is absolved from the claim. 
25. Where both parties have evidence, that of the plaintiff is generally entitled to preference. Thus, for instance, where the creditor and debtor are at issue as to the amount of a debt, and both parties have evidence, that of the former is entitled to preference; but where neither party has evidence, the assertion on oath of the latter is to be credited. 
26. It is also a general principle that where there is 
evidence adduced on both sides, ceteris paribus, the preference should be given to the witnesses of the party whose 
claim is greater, or who has the greater interest in the 
subject matter. Thus, for instance, in an action arising 
out of a contract of sale, where there is a disagreement 
about the price between the seller and purchaser, both 
parties having evidence, the witnesses who depose to the 
larger sum being due, that is of the plaintiff, are entitled 
to preference. 
27. And where there is a disagreement, both as 
to the price and goods, both parties having witnesses, 
the evidence adduced by the seller is entitled to preference as far as it affects the amount of price, and that 
of the purchaser as far as it affects the quality and 
quantity of the goods. 
28. If neither party have evidence, they should both 
be put to their oaths, and if both consent to swear, the 
contract must be dissolved; but if one decline and the 
other swear the decree should be passed in favour of the 
swearer. 
29. But if the disagreement exist with respect to the 
conditions only of a sale, such as the period of payment, 
etc., and both parties consent to swear, the assertion on 
oath of the party against whom the claim is made is 
entitled to preference. 
30. Where a husband and wife dispute as to the 
amount of dower, both parties having evidence, that of 
the wife must be credited as it proves most;But there is an exception to this general rule. If the proper dower of the wife, that is to say the average rate of dower paid to her paternal female relations, exceed the amount claimed by her, the evidence adduced by the husband is entitled to preference, because that goes to prove some remission on her part. See Hedaya, vol. i., p. 154. so also in a dispute between a lessor and lessee, the evidence of each 
party is entitled to preference as far as their individual 
interests are at stake; the evidence of the lessor being 
received as to the amount of the rent, and that of the lessee 
as to the duration of the term. 
31. "Where property is claimed and the person in whose 
possession it is, states that he is merely a depositary or a 
pawnee of an absent proprietor, and adduces evidence in 
support of his assertion, the claim must be dismissed; but 
the claim should be rejected in limine where the claimant 
admits his title to have been derived from such absentee 
proprietor. 
32. Judgment cannot be passed ex parte, the reason given being, that decisions must be founded either on the defendant's confession, or (notwithstanding his denial) on proof by witnesses; and where he is absent, it cannot be 
said whether he would have denied or admitted the claim. 
33. When cases are referred to arbitration, it is requisite that the decision of the arbitrators should be unanimous.
==Original footnotes==
Category:Islamic law