Principles of Mohammadan Law

By William Hay MacNaghten

Principles of Mohammadan Law is a collection of precedents and principles of Islamic law. MacNaghten was an English diplomat born in India who used his bilingual knowledge to study Mohammadan law. You will love reading this collection of principles of Islamic laws.

• Language: English
• Publisher: Good Press
• Release date: Apr 11, 2021
• ISBN: 4064066454326

Book preview

William Hay MacNaghten

Principles of Mohammadan Law

Published by Good Press, 2022

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EAN 4064066454326

Table of Contents

Chapter I. PRINCIPLES OF INHERITANCE

Section I. GENERAL RULES

Section II. OF SHARERS AND RESIDUARIES

Section III. OF DISTANT KINDRED

Section IV. PRIMARY RULES OF DISTRIBUTION

Section V. RULES OF DISTRIBUTION AMONG NUMEROUS CLAIMANTS

Section VI. OF THE EXCLUSION FROM AND PARTIAL SURRENDER OF INHERITANCE

Section VII. ON THE INCREASE

Section VIII. OF THE RETURN

Section IX. OF VESTED INHERITANCES

Section X. OF MISSING PERSONS AND POSTHUMOUS CHILDREN

Section XI. DE COMMORIENTIBUS

Section XII. Of the Distribution of Assets

Section XIII. OF PARTITION

Chapter II. OF INHERITANCE ACCORDING TO THE IMAMIYA, OR SHIA DOCTRINE

Chapter III. OF SALE

Chapter IV. OF SHUFAA, OR PRE-EMPTION

Chapter V. OF GIFTS

Chapter VI. OF WILLS

Chapter VII. OF MARRIAGE, DOWER, DIVORCE, AND PARENTAGE

Chapter VIII. OF GUARDIANS AND MINORITY

Chapter IX. OF SLAVERY

Chapter X. OF ENDOWMENTS

Chapter XI. OF DEBTS AND SECURITIES

Chapter XII. Of Claims and Judicial Matters

Chapter I. PRINCIPLES OF INHERITANCE

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Section I. GENERAL RULES

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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.[1]

Section II. OF SHARERS AND RESIDUARIES

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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.[2]

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