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_.
Public-domain text, read in full here on John Shaqi.
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