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
