Encyclopaedia Britannica, 11th Edition, "Independence, Declaration of" to "Indo-European Languages" / Volume 14, Slice 4

by Various

It will now be convenient to state the rules for finding which of the agnates take as residuaries of the deceased. These are, in ordinary circumstances, the male agnates only, and the rule in question depends upon a classification of the male agnates which is common in other parts of the world. Every family consisting of several generations of male agnates may be broken up into groups, each of which has a separate common ancestor of its own. Thus, suppose A to be the person from whom the descent is to be traced. A belongs to a large group of persons, all of whom are males descended from a common ancestor D. But A and his or her own male descendants form a smaller group, which we may call the group A. This is the first class of male agnates of A. Then suppose A to be the son or daughter of B, excluding those who are descendants of A, and as such included in the first class, the remaining male descendants of B will form the second class of male agnates of A. In like manner we get a third class of male agnates of A who are descendants of C, excluding those who are descendants of A or B; and a fourth class of male agnates of A who are descendants of D, excluding those who are descendants of A, B, or C. This classification can obviously be carried through as many generations as we please. Mahommedan lawyers adopt this classification with only one difference. Between the first and second classes they interpose a class consisting entirely of the direct male ancestors, which they call the “root,” so that the male descendants of A (the person whose heirs are in question) would be the first class of residuaries. B, C, D, &c., would be the second class of residuaries; the male descendants of B, other than the descendants of A, would be the third class of residuaries; the male descendants of C, other than the descendants of B and A, would be the fourth class of residuaries, and so on. In order to find the residuaries who are to succeed, we have only to take the classes in their order, and of the highest class which is represented to select the nearest to the deceased. If there are several who are equidistant, they will take equally per caput.

The sharers are, of course, those to whom a share is assigned by the Koran. They are (1) the father, (2) lineal male ancestors, whom Mahommedans call the “true grandfathers,” (3) uterine half-brothers, i.e. the half-brothers by the mother, (4) daughters, (5) daughters of a son, or other direct male descendant, whom we call daughters of a son how low and soever, (6) the mother, (7) true grandmothers, i.e. female ancestors into whose line no male except a lineal male ancestor enters, (8) full sisters, (9) consanguine half-sisters, i.e. half-sisters by the father, (10) uterine half-sisters, (11) the husband, (12) the wives. The right to a share and the amount of it depends upon the state of the family. Under Mahommedan law not only, as elsewhere, the nearer relative excludes the more remote, but there are special rules of total or partial exclusion arising out of the equitable considerations upon which all rules of distribution are based.

These rules are best shown by taking the case of each member of the family in turn, and at the same time it will be useful to explain the general position of each member. First, the sons. They take no share, but they are first in the first class of residuaries, and their position is a very strong one; they exclude entirely sisters and daughters from a share, and they reduce considerably the shares of the husband, the widows, and the mother. The position of the other male descendants is very similar to that of the sons. They are not sharers; they are residuaries of the first class, and will take as such if the intermediate persons are dead. They reduce the shares of some of the sharers, but not to the same extent as the sons. The father is a residuary of the second class, and the first in that class. But he is also a sharer, and as such is entitled to a share of one-sixth. He can take in both capacities. The father’s father is also a residuary of the second class, and he is a sharer, entitled to a share of one-sixth, but of course he cannot take either as sharer or residuary if the father is alive. The position of any true grandfather is analogous. An only daughter takes as sharer one-half of the property, two or more daughters take one-third between them. But sons exclude daughters from a share, and they would get nothing. Naturally this was considered unjust, and a remedy has been found by making the daughters what are called “residuaries in right of their brothers,” each daughter taking half of what a son takes. The mother gets a share of one-sixth when there is a child of the deceased, or a child of any son how low and soever; also when there are two or more brothers or sisters. In any other case her share is one-third. If, however, the wife, or the husband (as the case may be), and the father are alive, the share of the mother is only one-third of what remains after deducting the share of the husband or the wife. The brother is never a sharer. He is a residuary of the third class, and he excludes some sharers. The daughters of a son how low and soever get a share of two-thirds between them if there are several; if there is only one she gets one-half. But the daughters of a son are excluded by any direct male descendant who is nearer to the deceased than themselves, or at the same distance from him. If, however, they are excluded by a person who is at the same distance from the deceased as themselves, Mahommedan lawyers again say that they come in as residuaries in right of that person, each female as usual taking half as much as each male. Of course the daughters of a son may also be excluded by the daughters having exhausted the two-thirds allotted to females. A single sister takes a share of one-half; several sisters take two-thirds between them. Sisters are excluded from a share by any residuary of the first class, and their own brothers also exclude them, but in the latter case they take as residuaries in right of their brothers, each sister taking half what a brother takes. So, again, the sisters may be excluded from a share by the daughters or daughters of sons having exhausted the two-thirds allotted to females, and the residue would go to the nearest male agnate—that is, the uncle or the nephew of the deceased, or some more distant relative. To prevent this Mahommedan lawyers say that in this case the sisters are residuaries, basing their assertion upon a somewhat vague tradition. The share of the husband in the property of the wife is one-fourth if there are surviving children, one-half if there are none. The share of the widow in the property of her deceased husband is one-eighth if there are surviving children, one-fourth if there are not. The nearest true grandmother takes a share of one-sixth. If there are several equidistant, they take one-sixth between them. The uterine half-brothers take a share of one-third when there is only one, but they are excluded by any direct descendant and by any direct male ascendant. Uterine half-sisters are in the same position as uterine half-brothers. Consanguine half-brothers are residuaries of the same class as brothers, but only take in default of full brothers. Consanguine half-sisters take a share of two-thirds, or if there is only one she takes a share of one-half. But if there is a full sister also, the full sister takes one-half, and the consanguine sisters one-sixth between them. The consanguine half-sisters, like the full sisters, are excluded from a share by the children and the father of the deceased, and also by full brothers and consanguine brothers; but in the last case they come in again as residuaries, taking half what a brother takes.

The sharers must of course, unless excluded, be all satisfied before anything is taken by the residuaries. But the sharers may not only exhaust the property; there may not be enough to satisfy all the claimants. Thus, if a man died leaving a wife, a mother and two daughters, the shares are one-fourth, one-sixth and two-thirds, and the sum of the shares being greater than unity, they cannot all be satisfied. The difficulty is met by decreasing the shares rateably, in other words, by increasing the common denominator of the fractions so as to produce unity; hence the process is called the “increase.” The converse case arises when the shares of the sharers do not exhaust the property, but there are no residuaries to take what remains. It has been doubted whether the residue does not fall to the government as bona vacantia. But it is now settled that the surplus is to be divided rateably amongst the sharers in proportion to their shares. The process is called the “return.” The husband and the wife are excluded from the benefit of the return. If there are no sharers, the whole estate will go to the residuaries. If there are neither sharers nor residuaries, it will go to the (so-called) distant kindred. Their claim is strong on equitable grounds, as some of them are very near relations; such, for example, as a daughter’s children or a sister’s children. Nevertheless their claim has been doubted, and it must be admitted that there is no very clear ground upon which It can be based. They are not mentioned as sharers in the Koran, and it is not very clear how, as cognates, they could have been recognized by any ancient Arabian custom. However, their claim is now well established, and, in default of both sharers and residuaries, they succeed on a plan somewhat resembling that on which male agnates are classified as residuaries. If all the claimants fail the property goes to the government, but there is one peculiar case. Supposing a man dies leaving a widow, or a woman dies leaving a husband, and no other relative. There is then a residue and no one whatever to take it, as the husband and wife are excluded from the return. Strictly speaking, it would fall to the government as bona vacantia, but the claim is never made, and would now be considered as obsolete, the husband or wife being allowed to take the property.

Under Mahommedan law there are certain grounds upon which a person who would otherwise succeed as heir to a deceased person would be disqualified. These grounds are—(1) that the claimant slew the deceased by an act which, under Mahommedan law, would entail expiation or retaliation, and this would include homicide by misadventure; (2) that the claimant is a slave; (3) that he is an infidel, i.e. not of the Mahommedan faith. The second impediment cannot now have any application in India; the third has been removed by Act 21 of 1850. There is a rule of Mahommedan law that if two persons die in circumstances which render it impossible to determine which died first, as, for example, if both went down in the same ship, for the purposes of succession it is to be assumed that both died simultaneously.

Mahommedan lawyers appear always to have recognized the validity of wills, and they are said to be recognized by a passage in the Koran. But the power of testamentary disposition is restricted within very narrow limits. Testamentary succession. It only extends to one-third of the property after the payment of debts and funeral expenses. There is no hint of this restriction in the Koran, and it rests upon tradition. If the one-third has been exceeded the legacies must be reduced rateably. The heirs, however, by assenting to the legacies, may render them valid even though they exceed the prescribed amount. There is no restriction as to the form of making a will; it may be either oral or written. A legacy cannot be given to an heir. Mahommedan law contains some very simple and wise provisions for preventing the reckless and often unjust dispositions of property which persons are apt to make upon the approach of death. A man who is “sick,” that is, who is suffering from illness which ends in death, can only give away one-third of his property; and if he has also made a will containing legacies, the gifts and the legacies must be added together in the computation of the disposable one-third. So long as slaves had a money value, the value of the slaves liberated by a man on his deathbed was also included, which reminds us of the Lex Furia Caninia of the Roman law. Another transaction by which the restriction on the testamentary power might be eluded is that called mohabat. By this is meant a transaction in the form of a sale, but which, from the inadequacy of the price named, is obviously intended as a gift. If such a transaction is entered into during “sickness,” the loss to the estate would have to be reckoned in computing the disposable one-third. But the mohabat transaction takes precedence of legacies. Another obvious mode of eluding the restriction on the testamentary power is the acknowledgment by a man on his deathbed of a fictitious debt; and it would seem that such acknowledgments ought to have been put under restriction. But Mahommedans, like other Orientals, have a useful, though possibly a superstitious, dread of leaving the debts of a deceased person unpaid, and it is this, no doubt, which has prevented their questioning the deathbed acknowledgment of a debt, even though there is every reason to believe it to be fictitious. All that has been done is to prescribe that debts of health should be paid before debts of sickness, and that debts cannot be acknowledged by a sick man in favour of an heir.

When a Mahommedan dies, the funeral expenses and the creditors must first be paid; then the legatees, then the claims of the sharers, and, lastly, those of the residuaries; or, if there are neither sharers nor residuaries, those Administration. of the (so-called) distant kindred. The administration of the estate need present no difficulties if there are no disputes, and if there is some one empowered to take possession of the property, to get in the debts, to satisfy the creditors, and distribute the assets amongst the various claimants; and such a person may be appointed by a Mahommedan in his will, who will perform these duties. He is called a wasi, and he is in a position very similar to an executor under English law. But if there is no wasi, even if there are no disputes, there may be a good deal of trouble. It would have been in accordance with the spirit of Mahommedan law, and with general principles of equity, if an officer of the courts established under British rule had been regularly empowered to take possession of the property, and to take such measures as were necessary to ensure all the claimants being satisfied in their proper order. But this view of their powers has not been taken by the courts in India; recently, however, they have been enabled by legislation to grant the power of administering the estate to a single person.

There is scarcely any part of Europe or Asia where the creation of fictitious relationships is altogether unknown. In many cases the object of the creation is simply to obtain an heir. This is the object of adoption amongst modern Fictitious relationships. Hindus, and it is this, no doubt, which has led some persons to speak of Hindu adoption as a rudimentary will. But adoption, as such, has never obtained a footing in Mahommedan law. The fictitious relationships which that law recognizes are based upon a different idea. There was in early times a widespread notion that every man must belong to some family either as a freeman or a slave. The family to which a slave belongs is always that of his owner, and that of a freeman is generally indicated by his birth. But a liberated slave has no family, at least no recognized family; and as he cannot stand alone, it was necessary to attach him to some family. Now, just as in Roman law the freedman became a member of his master’s family under the relationship of patronus and cliens, so in Mahommedan law a liberated slave becomes a member of the master’s family under the relationship called mawalat. The object, of course, was to make the master’s family liable for the consequences of the wrongful acts of the freed slave. As a compensation for the liability undertaken by the master’s family, in default of residuaries of the slave’s own blood (who can only be his own direct descendants), the master’s family are entitled to succeed as what are called “residuaries for special cause.” Of course the relationship of master and slave cannot now be created, and it is scarcely probable that any case of inheritance could arise in which it came into question. The relationship of mawalat may, under Mahommedan law, also be created in a case where a freeman is converted to Islam. From a Mahommedan point of view he then stands alone, and would be required to attach himself to some Mahommedan family. The form of the transaction exactly indicates the nature of it. The party wishing to attach himself says to the person ready to receive him, “Thou art my kinsman, and shalt be my successor after my death, paying for me any fine or ransom to which I may be liable.” In this case also the family of the person who receives the convert is entitled, in default of other residuaries, to succeed to him as “residuaries for special cause.” But this transaction can have no meaning under English law, which does not recognize the joint responsibility of the family, and it is therefore also obsolete. In the case of mawalat the rights of the persons concerned are not reciprocal. The person received gains no right of inheritance in the family into which he enters, and incurs no responsibility for their acts. An important part may still be played in Mahommedan law by the creation of relationships by acknowledgment. Any such relationship may be created, provided that the parentage of the person acknowledged is unknown; a person of known parentage cannot be acknowledged. The age, sex and condition of the person acknowledged must also be such that the relationship is not an impossible one; for, as was said in the Roman law, fictio naturam imitatur. The relationship thus constituted is, in the ease of a father, mother, child, or wife, complete, and must be treated for all purposes as having a real existence. But in any other case the acknowledgment, although good as between the parties thereto, has no effect upon the rights of other parties. The acknowledgment which we have just been considering contemplates the possibility at any rate, and in most cases the certainty, that the relationship is entirely fictitious, and has no connexion with any rule of evidence in whatever sense the term is understood. But there is a rule of Mahommedan law that, in cases where the paternity of a child is in dispute, the acknowledgment of the child by the father is conclusive. Whether this would now be maintained in face of the Evidence Act 1870, which deals with cases of conclusive evidence, and expressly repeals all previously existing rules of evidence, may be doubtful.

Marriage is a transaction based upon consent between a man and a woman, or between persons entitled to represent them. The result of the transaction is that certain family relationships involving legal rights and duties Marriage. are created by the law, and these are not wholly under the control of the parties. But as to some of them, to some extent they may be regulated by agreement, and it is customary amongst Mahommedans at the time of a marriage to come to such an agreement. The only condition necessary to the constituting of a valid marriage between persons of full age is the consent of the parties. It is, however, the practice to conclude the transaction in the presence of two males, or one male and two female witnesses; and the omission of this formality would always throw a doubt upon the intention of the parties finally to conclude a marriage. It is even said that the absence of such witnesses would justify a judge in annulling the marriage. Minors of either sex may be given in marriage by their guardian, and the transaction will be irrevocable if the guardian be the father or any direct male ascendant. In any other case the marriage may be repudiated when the minor arrives at the age of puberty, but the repudiation is not effectual until confirmed by a judge of the civil court. A marriage may be conducted through agents. A woman can have only one husband; a man can have four wives; if he married a fifth the marriage would be annulled by a judge on the application of the woman. Mahommedans have a table of prohibited degrees within which parties cannot marry not very dissimilar to that in force in Great Britain. Nor can a man be married at the same time to two women nearly related to each other, as to two sisters. It is also considered that if a woman take a child to nurse she contracts a sort of maternity towards it, and that if a boy and girl are nursed by the same woman they become brother and sister, and, in a general way, it is said “that whatever is prohibited in consanguinity is prohibited in fosterage”; but it is doubtful whether the law goes so far. The widow, or a divorced woman, is not allowed to marry again during her iddut. This is a period of chastity which a woman is bound to observe in order to avoid confusion of issue. If she is pregnant it lasts until the child is born; if not, then in case of divorce it lasts through three periods of menstruation; if she is a widow it lasts for four months and ten days. A Mahommedan man cannot marry an idolatress, but Jews and Christians are not thereby excluded, because, although infidels, they are not idolatresses. A woman is forbidden by Mahommedan law to marry any one who is not a Mahommedan; but if the marriage took place in conformity with the Act of 1872 it might be valid, if it amounted to a repudiation by the woman of her Mahommedanism. It is important to remember, when considering the validity of a Mahommedan marriage, that a distinction is drawn between marriages which are simply void (batil) and those which can only be annulled by judicial decision (farid), for such a decision has no retrospective effect, so that the children already born are legitimate; and if no step is taken to obtain such a decision during the existence of the marriage, it cannot be questioned afterwards. What marriages are absolutely void, and what are only capable of being declared void, is not very clearly settled, but the evident leaning of Mahommedan law is against absolute invalidity, and there is strong authority for the opinion that no marriages are absolutely void except a marriage by a woman who has a husband living and such as are declared to be incestuous.

A Mahommedan has the absolute right to divorce his wife whenever he pleases without assigning any reason whatever for doing so. There are, however, very strong social reasons which have considerable influence in restraining Divorce. the arbitrary exercise of the power. The power to divorce remains notwithstanding any formal promise by the husband not to exercise it, and it is even said that a divorce pronounced in a state of intoxication, or by a slip of the tongue, or under coercion, is valid. The divorce can, however, be revoked by the husband, but not after it has been three times pronounced, or after the iddut has been passed by the woman. Nor can the husband remarry his divorced wife unless she has been again married, and has been again divorced or become a widow, and the intermediate marriage must have been consummated. The power to divorce a wife may be entrusted by the husband to an agent acting on his behalf, and this contrivance is sometimes made use of to enable a woman’s friends to rid her of her husband if he ill-treats her. The husband may even empower the wife to divorce herself. If the husband or the wife should happen to die whilst the divorce is still revocable, he or she will inherit; and even a triple repudiation pronounced during “sickness,” that is death-sickness, will not deprive the woman of her inheritance if the iddut has not been passed. Of course there is nothing to prevent the husband and the wife from agreeing to a divorce, and to the terms on which it is to take place, and such an arrangement is very common. The treatment of the wife by the husband is not a ground upon which the marriage can be dissolved, but the impotence of the husband is a ground of dissolution. The courts in India consider that they have the power under Mahommedan law to grant a decree for the restitution of conjugal rights.