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