limited to Mahommedans. At one time endeavour was made to administer the
Mahommedan criminal law as the general territorial law of India, but it
had constantly to be amended, and it was at length abolished and the
penal code substituted. To be a Mahommedan, and so to claim to be
governed by the Mahommedan law, it is necessary to profess the
Mahommedan faith.
Intestate succession.
All that we find on the subject of intestate succession in the Koran are
certain directions as to the shares which certain members of the family
are to take in the estate of their deceased relative. So far as they go,
these are rules of distribution--that is to say, they depend, not on
consanguinity only, but on certain equitable considerations, by which
rules founded on consanguinity are modified. But these latter rules,
though nowhere laid down in the Koran, still play a large part in
Mahommedan law. There can be no doubt that they represent the
pre-existing Arabian custom, which it was not the intention of the
Prophet to displace, but only to modify. The claimants under these rules
take whatever is left after the specific shares assigned by the Koran to
individual members of the family have been satisfied; if in any case
there are no such shares, they take the whole. The Arabic term for this
class of heirs is _asabah_, which literally means persons connected by a
ligament. The term used by English writers is "residuaries," but this
description of them has the disadvantage that it entirely loses sight of
the connexion on which the claim to succeed is based. They would be more
correctly described as the "agnates" of the deceased, but the term
"residuaries" is too firmly established to be displaced. Those persons
who take a share of the property, under the specific rules laid down in
the Koran, we call "sharers," and this word has acquired a technical
meaning; it is not used to describe those who can claim a portion of the
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.
Public-domain text, read in full here on John Shaqi.
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