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443
INDIAN LAW

estate in any other way. It is hardly likely that females, or relatives through females, had any claim to the succession under any Arabian custom, nor, except so far as they are made sharers, are they recognized by the Koran as having a title to succeed. The proper description of this class of persons is zavi-ul-arham, i.e. “uterine kindred,” and they have, in default of other heirs, established a claim to succeed. English writers have erroneously called them “distant kindred,” but distance has nothing to do with the matter.

There is no right of primogeniture under Mahommedan law; there is a general preference of males over females, and if males and females take together as residuaries by an express provision of the Koran, each male takes as much as two females. Females are also expressly forbidden by the Koran to take more than two-thirds of the property; but in the application of these two rules the shares of the mother and the wife are not included. No person can claim to take any portion of the property who traces his relationship to the deceased through a living person, but this rule does not apply to brothers and sisters whose mother is alive. If several persons all stand in the same degree of relationship to the deceased, they take equally, per caput and not per stirpem.

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