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