uncle. Subsequently to his death one of his sisters, D, dies, leaving a daughter G, during the life-time of the persons above named. Afterwards E dies, leaving a daughter H. Under these circumstances, according to law, how will the property of the original proprietor be distributed among the survivors?

three sisters

nal uncle's son; two of

R. Under the circumstances above stated, after the Of a widow, performance of his (A's) funeral ceremony and burial and a pater, without superfluity of expence, yet without deficiency, the satisfaction of his just debts, and the payment of his the sisters dying prior to legacies out of a third of what remains after his debts the distribuare paid, the residue of the property left by A, accord- tion, each ing to the Law of Vested Inheritance, will be made daughter. into thirty-six parts, of which nine shares will go to B, fifteen shares to C, three to F, four to G and the remaining five to H.*

*In the first instance the property should have been made into twelve parts, the portion of the widow being one-fourth and of the sisters twothirds; and in this case the rule being that the division be made by twelve (See Prin: Inh: 14, 24 and 65.) But eight, which is two-thirds of twelve, cannot be distributed among the three sisters without a fraction, and three is prime to eight. Consequently in conformity to the Third Principle of Distribution (77) the number of the original division should be multiplied by the number of sharers who cannot get their portions without a fraction. Thus : 12 × 3=36, which must be distributed in the following manner:

On the death of D, the number to which she was entitled at the former distribution (8) and the number into which it is necessary to make her estate (4), being Mootudakhil or concordant, no further process is necessary, and her eight shares will be distributed thus:

So also on the death of E, by the same rule, of her ten shares, her daughter H will get one moiety and her sister C the other.

leaving a

Difference be

CHAPTER II.

PRECEDENTS OF SALE.

CASE I.

Q. Certain lands are the joint property of several individuals. One of the joint proprietors, without the consent of the rest, executes a deed in favor of a stranger, transferring to him a part of his right and interest in the said joint property, without making any specification of the boundaries; the deed merely reciting that the lands so transferred are his sole property. In this case is the deed valid?

R. If the deed, purporting to transfer to another the tween the le- acknowledger's right to a part of his interest in a joint gal provisions of sale and undivided estate, be a deed of gift, it will not be valid gift. according to Law, without a specification of the boundaries, because an undefined gift is illegal: but, if it be a deed of sale, it will be valid; for, to this species of contract, partnership, indefiniteness and want of consent on the part of the joint proprietors, and non-specification of the boundaries, are no objections. The sale, therefore, must unquestionably be maintained as valid and binding.

CASE II.

Q. A person having rented a small piece of ground, and having built a house, and planted trees thereon, dies, leaving two sons, a wife, and a mother. On his death, and during the life-time of the mother (the property being undivided), his wife and his sons sell every thing on the premises. Is the sale good, under these circumstances? or is the mother entitled to inherit any portion of her son's property? and if so, to what pro

portions are the above mentioned persons severally entitled, of the deceased's property?

seller, but not

R. If some of the heirs sell the undivided property A sale of undivided prospecified in the question, the contract will be binding perty is good as far as regards their own shares. But any coheir, against the who was not a party to the sale, is entitled to recover against a his portion of the inheritance, his right not being de- stranger to the feated by their act.*

CASE III.

Q. A person, during his life-time, having made his landed property into three equal parts, sold one part to each of his wives in satisfaction of their respective dowers. Part of the property so sold was parcelled off, and part continued undefined. Afterwards the son of the seller's second wife, having succeeded by inheritance to the share sold to his mother, sold such share to his own wife in satisfaction of her dower. The lands so sold, however, remained ostensibly in his possession and under his management. Is such sale valid according to Law, notwithstanding the want of proof as to the purchaser's seizin and possession?

contract.

zin nor divisi

R. The validity of a contract of sale is not depen- Neither imdant on the immediate seizin of the purchaser, nor is mediate seiit at all affected by the property sold being undivided. on essential The sale therefore, by the original proprietor, of his in sale. landed property in three equal portions to his three wives is valid, although some part of the portions was not defined.

The son of the seller's second wife suc

There is a distinction between the case of a sale, and of a gift in the Moohummudan Law. Had the property in the case in question been disposed of by gift, instead of by sale, the transaction could not have been upheld as valid, because, in the former case, seizin is necessary, which cannot take place, where the particular share or shares to be disposed of, are not distinctly separated and defined.

Circumstan

ces under

ceeded to his mother's share by inheritance, and the sale by him of such share to his own wife, in satisfaction of her dower, is also valid, although he remained seized and possessed of the same subsequent to the sale. The purchaser is at liberty to make seizin thereof, at any time she may think proper.*

CASE IV.

Q. Zeyd sells his dwelling house, and the lands thereunto annexed, to Omar, stipulating for the sum of two thousand rupees as the price of the property sold, to which Omar agrees, and pays to Zeyd twenty-five rupees, as earnest money, promising to pay the remainder of the purchase money on a certain date, when the deed of sale was formally to be drawn out. Zeyd, being satisfied with these conditions, relinquishes the property to Omar, who takes possession accordingly, and places his own people on the premises. Under these circumstances is the sale complete? is either of the parties at liberty to retract? or is Omar compellable to pay the whole of the purchase money?

R. Under the circumstances stated the sale is comwhich a sale is plete; neither party is at liberty to retract; and the complete and money is due from the purchaser. According to the binding.

Hidaya,-Sale is completed by tender and acceptance when both terms are expressed in the past tense, as if one party should say, "I have sold;" and the other should say "I have bought." It is to be observed that, in like manner, a sale is established by any other words expressive of the same meaning; as if either of the parties for instance should say, "I am contented with the price," or "I have given you this article for a

The doctrine maintained in this is corroborated by what was laid down in the two preceding cases.

certain price," or "take this article for a certain price.”. When the declaration and acceptance are absolutely expressed without any stipulation, the sale becomes binding, and neither party has the power of retracting.* A sale is valid either for ready money or for a future payment, provided the period be fixed.+ So also in the Kunzoodugaiq,-"A sale is a barter of one property Definition of for another by the mutual consent of the parties; it is sale. completed by declaration and acceptance, and is valid either for ready money or for a future payment."

CASE V.

Q. A person, by means of an agent, makes a sale, to his own son, of his real property, and executes a deed of sale thereof, in due form, properly sealed and attested. He, afterwards, by means of a deed of gift, makes a present to his son of the purchase money. He himself (the father) retains possession of the property on account of the minority of his son, and keeps by him both the deed of sale and the deed of gift. After the deed of sale (which did not specify any condition). had been completely executed, but before it was delivered to the purchaser, the seller became desirous of annulling it, alleging that he had executed it on the faith of a condition which had been infringed; and on claim being made in a Court of Justice, he declared the deed to have been executed subject to the condition alluded to, in corroboration of which assertion he urged the fact of his having continued in possession of the property sold and of his not having delivered up the

The purchaser may however retract in case of a defect or of the property purchased not having been inspected. See Prin: of Sale 21 and 26, and the Hidaya, vol. 2d, page 363. It may be observed that according to the doctrine of Shafei, the parties have an option of retracting until the breaking up of the assembly in which the contract was formed. But this opinion has been overruled. Ibid.

+ See Prin; of Sale 12 and 18.