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PRINCIPLES AND PRECEDENTS
OF
MOOHUIURIDAN UX.



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at



PRINCIPLES

AND

PRECEDENTS

OF

MOOHUIIMUDAN LAW,

RELATIVE TO

THE DOCTRINE OP INHERITANCE, CONTRACTS

AND MISCELLANEOUS SUBJECTS;
AND
A SELECTION OF LEGAL OPINIONS

' INVOLVING THOSE POINTS

TOGETHER WITH

NOTES ILLUSTRATIVE AND EXPLANATORY,

AND PRELIUINARX REMARKS.

BY

w'^'h.'^MACNAGHTEN, ESQ.,
BENGAL CIVIL SERVICE.



SEVENTH EDITION

WITH APPENDIX AND GLOSSARY,

AND

DIGEST OF CASES, FROM 1793 TO 1889.
BY _

WILLIAM SLOAN. -L ^

MADRAS: ^^1

HIGGINBOTHAM AND CO., J^^^,

1890. Digitized by Google



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^WU^



JUN 9 1939



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PREFACE

TO THE
S^ OON-XD ESODITIOlSr.



L
1



No WORK W&8 eTer nsbered into existence with greater diffidence than the
Principles and Precedents ^y Sir Wiiliam Macuaghtew. 'Kie author conld
scarcely have anticipated when presenting ib to the Jadioial Service* that almost
from the yery day of its publication, it would have been considered the safesc
^nide in the administration of Mahomedan Law, and an indisputable authority
both by the Crown and Mofussil Courts. The accnracy of its doctrines has been
established by the concurrent testimony of innumerable Futwan, dt^livered by
Mooftiea and Canzies, whose lives had been exclusively devoted to ihe 8tudy of
this particular law ; and such has been the success attending the production, ,
that after a test of years, before every Court in India, as well as before Her
Majesty's Privy Couiicil,,not a single principle hap ever been questioned, nor a
single ooucluaioo over-ruled.

'Notwithstanding the value and utility of this work it has become extremely
scarce. Apology is therefore unnec>e88ary for placing a new Edition within the
reach of the Bench, the Bar, and the Student.

It is to be feared that in Madras the Mahomedan Civil Law has not been
cultivated with the same degree of attention as in Bengal and the Not't^i-West.
This is probably owing to the few cases connected with it which occur, and to the
facility of obtaining Futwas from the Law Officers attached to the Se88i(»n (^rts.

I A knowledge of this branch of law is, however, as necesoacy to all concert <ft in
the administration of Civil Justice, in Southern India, as a knowledge q^ny

I otheF; for notwithstanding the means at hand of obtaining an exposition, jpe.vher
an Advocate nor a Judge can do justice to a case, unless he be tho/oughly •
acquainted with the principles on which the decision oilght to be based. The time
moreover is fast approaching when the means of obtaining assistance for deteri||in-
ing what the law is, may be eitheif totally withdrawn or confined to the Presidency
Courts. On the piromulgation of the contemplated Criminal Code, the office of
Hoofty Sudder Ameen, to which the exposition of this law is at present entrusted,
will, in all probability, be abolished ', and in this event, it may be anticipated,
that Mahomedans, capable of deriving instruction from original sources, may,
through want of indnoement to prosecute the study, divert their attention to more \
remunerative pursuits. The possibility of such an occurrence win pet hnp?) have
the effect of directing greater attention to this branch of law> t*ud may render it



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VI PREFACE TO THE SECOND EDITION.

expedienfc to demand a greater degree of knowledge of its dootrineSi tban has
hitherto been required of Candidates for Judicial diplomas.

The principles of the Mahomedan Law being fixed and intimately blended
with the religion* of the people, uncertainty can only arise from erroneous appli-
cation ; and as any inlerferenoe with, or wrong application of, the law, is likely to
be considered bn outrage on the Mahomedan religion itself, nothing further need
be said to show, how indispensable is an accurate knowledge of the principles to
all concerned in the administration of justice in India. Although in the Madras
Presidency, public Officers are not often required to enforce the provisions of
this law, yet as they are bound to do so when called upon, it is impossible to
foresee the mischievous consequences which may ensue, should a decision be
pat od calculated to excite the religious jealousy of the Mahomedan population.

% The works on Mahomedan Law abcessible to the English Student, although
not very numerous, are sufficient to impart sufficient knowledge for all practical
purposes. If a iex? more standard Arabic authorities were translated, perhaps
the Bench and the Profension might have at command sufficient means of
satisfactorily dealing with intricate questions, should the contingency adverted to
occur, and the cmistruction of the law, according to their o^n judgment, become
a matter of necessity.



4



.:



A brief notice of English books on the subject may prove of use to those
who are about to commeuce the study.

As an authority and a Text Book» Macnaohtbn's Principles stand foremost
and will never be surpassed. So valuable is this work that two attempts have
been made to supply the demand for it. A useful Manual foundea on the
Principles, and enriched with extracts from Elbbrlino on Inheritance, &o,, was
published in 1857, by Mr. Sadooopah Chabloo, of the Madras Sudder Bar : and a
reprint by Professor Wilson, of the Principles, without the Preoedeuts, appeared
at the commencement of this year.

Mr. 6aillie*s Law of Inheritance is a valuable Treatise, but is not easily
procurable in India. It is based on the original text of the Sirrajeyyah and its
Commentary, the Suruffeea, Standard Ai*abio works on the Soonee System of
Inheritance. Abridged Translations of these books, as well as a Translation of
the Bigvato'l-bahith, a Law Tract on Inheritance in verse, are to be found amon^
the l^rks of Sir William Jones. The whole doctrine of inheritance appears to
be ^efly based on the Sirrajeyyah and its Commentaries, and Sir William in his
Prefacef says. " I am strongly disposed to believe that no possible question tK>uld
occur on the Mahomedan Law of Succession, which might not be correctly aud,
rapidly answered by the help of this work" (the Sirrajeyyah). V^

The Law of Sale by Mr. Bailub, was prepared from the Futawa Aulumgiri.
He describes it as a " faithful transcript ' of the original, but perhaps it may



* Hamilton's Preliminary Discoarse, p. xxxi.
^ t Complete Works, p. 204, Vol. 8, Ed. 1807.



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PREFACE TO THE SECOND EDITION. ^in^

be regretted tbat gentleman did not adopt the conrie, which seems to have
euggested itself to him, of endeaTOUriug to render the book *' more i*eadable" by
re-casting tbe materials.

Elbbhlino's Treatise on Inheritance, Gift, Will, Sale and Mortgage, contains
a Compendiam of tbe Mahomedan Law on those snbjoots, and as it likewise
treats of the Hindn Law. it is a highly useful hand-book of reference. Haying
had the advantage of the labors of Macnaghten and Baillii, the author has
succeeded iu rendering the chapter on Inheritance more intelligible to the
Student, than either of those writers.

Tbe Hedaya or gaide, a Commentary on tbe Mnssulmaun Laws, Civil and
Criminal, is the sheet anchor of tbe Mahomedan Lawyer. It contains a fait^ul
representation of theNioctrines of Abu Hanifah, and his disciples Abu Yu&uf
and tbe Imam Mahomed; and to use tbe* words of a Mahomedan author, *'if
has been declared, like the Koran, to have superseded all preYious books ** on
tbe law."*

!

This work was translated by Mr. Hamilton nnder the auspices of the
celebrated Warren Hastings, than whom, no Governor ever displayed a more
landable desire to place within tbe reach of tbe Service the meaus of becoming
I acquainted with the laws of the country. Tbe translation is contained in four
thick quarto volumes, but is rarely to be met. with, except in the Libraries of a
few Courts.(a)

The above are the only English authorities in use and all relate to the
Soonee Civil Law prevalent in India. A general digest of tbe Imamijah or
8hia Law, was compiled under the superintendence of Sir William Jonbs.
The first part of this work was translated by Captain, afterwards Colonel, Baillie,
who unfortunately left the remainder unfinished. This fragment, (which also
baa become scarce), and a few casual notices in other works, afford the only means
I within the reach of the English Student, of forming an acquaintance with
p the Shia Civil Law, which the Courts are bound to administer when litigants
of that sect come before tbem.f It is therefore scarcely possible that the Sbia
Law can be well understood, at least, in the Madras Presidency. Its cultivation
moreover has received no encouragement, the Court of Foujdaree Udalut having
declared, that the circumstance of '* Candidates for employ being of the Shea
sect, will constitute an insuperable objection to their appointment to the office
of Moofty Sudr Ameen/'i^

The Student in tbe course of his reading will find frequent allusions to the

I Patawa Elazi Khan and the Fatawa Alamgiri. The former has never been

translated, and a portion only of the latter was rendered into English by Baillib

1 3^n bis Law of Sale. Tbe Fatawa Kazi Kban is reckoned to be of equal authority



* Motley's Administration of Juetioe in British India, p. 289.

t 2, Moore's Indian Appeals, p. 441.

X Freere's Cironlar Letters, Madras, p. 157.
(a) Since the above was written, a new Edition of this scarce work has been reprodnoed,
with Preface and Index, by Standish Grovb Gbady Jarrister-at-Law, Recorder of Gravesend,
in 1 Vol. Mr. Gbadt is also the anther of " Thb Hindu Law of Inheritancb," and ** The
Mahomsdan Law oi Inhskitance." ^



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Vm PREFACE TO THE SECOND EDITION.

with the Hed aya : and it was a question when Warren HASTiNas resolved on a '^
translation of a standard work, whether the Fatawa Alamgiri or the Hedaya '^
should be selected.* Morlky describes it as a bare recital of Law Cases without M
arfi^nments of proofs; but as the Hedaja contains the arguments, it may perhaps i^
be considered a fit companion to that work. Should it ever be resolved to place
at the disposal of the Service, translations or corapilutions from any other Arabic
authorities* it may probably be found that none are so deserving of preference
as these collections.

The British Indian Legislature has ever scrupulously endeavoured to avoid
interference with the religious prejudices or institutions of their native subjects,
and in Clanse I, Sec. XVI, Reg. Ill of 1802 (Madras Code), provided that the
Mnhomedan Laws shall, where Mahomedans are concerned^overu suits regarding
succession, inheritance, marriage and caste, and all religious usages and iustitu-
%tions. In only one single particular, legislative interference with respect to
inheritance and succession lias taken place, viz., in the case of apostacy or change
of religion. Macnaohtkn says (p. 1, par. 6j, "difference of religion" excludes
from inheritance; and Baillib (luh., pp. 24, 25), that *' difference of religion is
such an impediment to inheritance, that an infidel cannot, in any case, be heir
to a believer, ii4>r a believer to an infidel." " Apostates are declared to be
incapable of inheriting to any one, even to apostates like themselves ; partly
as a punishment for their gnilt, in abandoning the faith; and also, because
they are n^t considered to be of auy religion, the law refusing to acknowledge
them as belonging even to that to which they have apostatized." But the
Legislature in Act XXI of 1850 ruled, that, "so much of any law or usage now
in force within the territories subject to the Government of the East India
Company, as inflicts on any person forfeiture of rights or property, or may be
held in any way to impair or affect any right of inheritance, by reason of his or
her renouncing, or having been excluded from the communion of any religion, or
being deprived of caste, shall cease to be enforced as law in the Courts of the
East India Company, and in Courts established by Boyal Charter within the
said territories."

Adherence to the Mahomedan Law of Procedure, Slavery or Contracts,
never having been guaranteed, interference therewith on the ground of publio
policy is open to Government, and is not likely to attract more than ordinary
attention. Act Y of 1843, which abolished slavery, was allowed to pass without
a murmur. It declares invalid all rights arising out of an alleged property in
the person or services of another as a slave, and places slaves and freemen ou
the same footing as respects property and rights.

Some difference of opinion appears to have existed in the Bengal Courts
regarding the application of the Mahomedan Law of Limitation, to cases of pre4
eraption, but Act XIY of 1859, the present Indian Statute of Limitation, ha^
placed the subject on an intelligible basis. '

Contracts not having been specified in Clause I, Section XYI, Beg. Ill of



• Hfmilton's Preliminary Discoorse to the Hedaya, p. xliv.

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PREFACE TO THE SECOND EDITION. IX

, suits oonnected with the subject have been occasioDally treated by the
ossU Courts in an unsaiisfaotorj manner, decisions having been passed,
netimes, in accordance with the Hindu or Mabomedan Law; sometimes,
wording to custom ; sometimes, according to principles of European Laws ;
I Bometi'mesy according to the rule of justice, equity and good conscience,
rth respect to the application of the Hindu Law of Goutrscts, Mr. Justice
ftASGB, of the Madras Sadder Court, observes, at page 73 of bis Manual,
rherever equity may not be imperilled, the Court would respect this branch
1^0 o! the law, as what should naturally govern the transactions of the
people with one another, and the more so as the Supreme Courts of the
Crown are enjoined to dispense it." And with respect to the application
I the Mabomedan Xaw, Mr. Bailub, in his Preliminary Bemsrks to the
[aw of Sale, says, ** lb is an admitted principle of jurisprudence, that contracts
'e to be construed according to the iuteuiion of the parties, except when
>pposed to the policy of the law of the country. Beconrse is had however to
izat law as the best interpreter of intention when not sufficiently ez|$ressed,
iKcsnie its general provisions are presumed to be in the view of the parties
vbea they enter into a contract This supposition could hardly be made by a
hdg^ o! the Company's Courts when construing a contract between Mahomedans,
Bfid a question of some difficulty might arise, whether such a contract when
unbiguons, should be equitably construed according to the generat law of the
land, or the particular law of the parties, by which alone perhaps it could be
interpreted in harmony with their intentions so far as expressed." There being
no recognized " general law of the land'* respecting contracts, in contradistiuc-
iion to the particular law of the parties, the subject resolves itself into a simple
question of equity, and the difficulty remains of determining the distinctive oir«
cnmstances which are likely to " imperil" equity, and predude the application
of i\ie "^law of t]kB parties." It cannot be denied that the subject of Mofussil
contracts \s at present in a very unsettled state. Not being so dependent on law,
as " usage and convenience," the Legislature has seldom ventured to interfere.
ftt)bab/7 » sufficient number of decisions has already been passed by the Superior
Courts, to admit of the elimination of certain recognized principles, applicable
to the usages of bbe country, which may serve as future guides for the determin-
ation of similar or analogous oases. Should an Indian Mansfield ever arise,
&nd edace from the conflicting customs of the various classes of the inhabitants
g^eral principles of universal application, no man could merit greater honor.

In the preparation of this Edition it was deemed advisable to omit the
original Arabic Extracts, and the names of cases published in the first Edition.
^ the substance of original is set forth in the text, it is presumed, the omission
will be attended with no inconvenience. In every other respect, even to the
Paging* the present corresponds with the first publication.

I originally intended to insert Notes of Cases decide^ at the foot of each
ptge ; but as the oases proved to be very numerous ; and such an arrangement
^uld interfere with the paging, and render this Edition inconvenient as a
vference to verify quotations made from the Ist Edition ; and the reports of one



i



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X PREFACE TO THE SECOND EDITION.

Presidency are not eneily procurable in another, this intention was abaiidonedU
and, in lion, an Alphabetical Digest* has been appended, of cases decided in
the Superior Courts from 1793 to 1859, reference being made by number, in tW
body of the work, to oases contained in the Digest. In preparing the oasep I
availed mjseU of Mobley's yaluabte Digest and the published reports, and
am indebted entirely to Morlkt for the cases decided in the Supreme Courts.
Having failed to obtain the reports subsequent to those abstracted in the Ne«r
Series brought down to 1850, the cases decided in the Supreme Courts between
that year and 1859 are omittedf. The arrangement adopted corresponds wil^i
the heading of the Principles and Precedents, and the oases have been more
fully noticed than they could possibly have been within the compass of brief
notes.

It will be observed that the Madras and Bombay becisions on points ot
€^ahomedan Law, are few, in comparison, with those of Bengal and the Nortij^
Western Provinces ; but as the law has been more frequently appealed to la
these Residencies, and has therefore necessarily received greater attentidtti,
and been more fully discussed bj an intelligent Bar, the rulings of the Sadder
DeWanny Adawlut may, perhaps, be received as precedents of high authority
in Madras and Bombay, and will undoubtedly be viewed as such in Bengal and
the North- West.

The OAhography of Arabic and Persian terms adopted in the several reports
and other works referred to, has not been altered.

>

My thankful acknowledgments are due to the Judges of the Sudder Court^
for their kindness in allowing me the free use Of the Reports in their valuable
Indian Law Library, which has enabled me to render the Digest more complete
than it otherwise could have been.

W. SLOAN.
Madbas, May 1860.



* Has been broughi np to 1889.

t KoTR.— The Privy Council Beports examined were brought down to February 1868 j ifc*
decisions of the Sudder Adawlut) Madias, to September 1859 j those of Bengal to November
1859 ; those of the North- Western Provinces to March 1857 ; and those of Bombay to the eul
of 1857. T







^ • f



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CONTENTS.



BOOK I.



PiOB.

Chap. I. Principles of Inheritance .•. ... ... ••• ... 1

Skct. I. General Bales ... ... ..« ••• 1

Sect. 11. Of Sharers and Besiduaries ... ... ... ..• 3

Sect. III. Of Distant Kindred ... ... ... ... ... 7

Sect. lY. Primary Bales of Distribution ... ... ... 12

Sect. Y. Bales of Distribution among Numerous Claimants 14

Sect. Yf. Of Exclusion from and Partial Surrender of Inheritance. 21

Sect. YII. Of the Increase ... ... ... 22

Sect. YIII. Of the Beturn ... ... ... ... ... 23

Sect. IX. Of Yested luberitacces ... ... ... 27

Sect. X. Of Missing Persons and Posthumous Obildreo ••• .... 29

Sect. XL De Commorientihus ... ••• ..• 30

Sect. XII. Of iho Distribution of Assets ... ... •.. 31

Sect. XIII. Of Partition ... ... ... •.» 33

Chit. II. Of Inheritance according to the Imameeya or Schia doctrine ... 31

Chap. III. Of Sale 42

Chap. IY. Of Shoofaa, or Pre-emption ... ... ... 47

Chip. Y. Of Gifts 50

Chap. YL Of Wills 63

Chap. YII. Of Marriage, Dower, Divorce and Parentage ... ... ... 16

Chap. YIII. Of Guardians and Minority ».. ... ... • 62

Chap. IX. Of Slavery... ... ... ... ... ... ... 65

Cbap. X. Of Endowments ... ... ... ... ... 69

ClAP. XI. Of Debts and Securities ... ... ... ... ... 72

OHap. XII. Of Claiuis and Judicial matters ... ... ... 76



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Xll CONTENTS,

BOOK 11.

Pagi.

Cha?. I. Precedents of Inheritance ..• ..• ... ... ... 8S

Chap. II. Precedents o! Sale ... ... ... ... 166

Chap. III. Precedents of Pre-emption ... ... ... ... ... 181

Chap. IY. Precedents of Gifts ... ... ... ... ... ••• 197

Chap. Y. Precedents of Wills ... ... ... ... ... ...241

Chap. YI. Precedents of Marriage, Dower, Diroroe and Parentage 250

Chap. YII. Precedents of Guardians and Minority *.. ... ... 304

Chap. YIII. Precedents of Slavery ... ... ... ^ ... 3)1

Chap. IX. Precedents of Endowments ... ... ... ... •..327

Chap. X. Precedents of Debts and Securities ... ... 2U

Chap. XL Precedents of Claims and Judicial matters ... ... ... 353



APPENDIX.

Table of Relationship ... ... ... ... ... ... ...383

Description of the Nikah, or M^omedau Marriage Ceremony ... . * ... 388

A Decision on Divorce by Amir-ba-Yed, or Delegation of Liberty ... •„ 390

A Deoision ou Divorce by Koola, or Mutual Consent ... ... ... 3d2

Divorce according to Ordinary Custom ... ... ... 395

Questions for Students on the Principles and Precedents... ... ... 397

Glossary ,., ,., »„ ,„ ... ,., ,„ ,,, 414



INDEX

To the Principles iiw General ... ... .,. ... ... ... i

To the Precedents in General •.. ... ... ... • xi



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Online LibraryWilliam Sloan Sir William Hay MacnaghtenPrinciples and precedents of Moohummudan law, relative to the doctrine of ... → online text (page 1 of 63)