in the Shurhi Viqaya, Hidaya and other authorities,— "The embryo follows the mother both in slavery and emancipation."

Q. 2. Is it lawful to dispose of by sale, or to deposit as a pledge any human being?

of a free-man.

R. 2. No human being who is in a state of freedom Sale or pledge can be a fit subject of sale or deposit; according to the Shurhi Viqaya,-" The sale of a free-man is void. To deposit as a pledge a free-man is an invalid act."

CASE X.

Q. A free-woman having attained the age of majority, that is to say, being fifteen years old, voluntarily, and by her own choice, contracts matrimony with a slave, and they live in the same house together, as husband and wife, for the space of a year and a half. Can such marriage of a free-woman with a slave, be considered a legal and valid contract?

age of freewomen with slaves.

R. The marriage of a free-woman with a slave is of the marri legal and valid. This opinion is in conformity with the doctrine maintained in the Qoodooree,-" When a slave, by the consent of his master, marries a free-woman, he is responsible for her claim of dower, and he may be sold in satisfaction thereof."*

CASE XI.

Q. A woman of the Hindoo persuasion resides in the house of a Moosulmaun and becomes a convert to the faith of Moohummud. After such conversion she takes up her abode with a Rajpoot, lives with him as

See Prin: Slavery 14. But the offspring of such marriage are slaves and belong to the master of the husband.

an illegiti

mate child

have no right

to sell it

into slavery.

Of Isteela.

his concubine, and has by him a daughter, who is living, as are also both her parents. Under these circumstances, to which of the parents does the daughter belong? If the daughter belongs to the Rajpoot, is he entitled to sell her to another or not? If he is entitled to do so, can the purchaser of her, dispose of her to another by sale; and if, during her minority, she lives with the purchaser, is she, on her attaining the age of maturity, at liberty to free herself from slavery or not? According to the Moohummudan Law, what sort of slaves are fit subjects of purchase and sale?.

The parents of R. The daughter having been born in a state of freedom, her parents are not proprietors of her, but the mother is entitled to the charge of her person until she attain the age of puberty. Neither of the parents is permitted to sell such child, and whosoever purchased it, the purchase is null and void; as mankind is originally free and is not a fit subject of slavery, except in a case of Isteela, which obtains when a Moohummudan ruler subdues the dominion of infidels and makes captives of its inhabitants, both male and female. If they become converts to the Moohummudan religion, their lives should be spared, but they will continue in a state of slavery in consideration of their original infidelity. In this case the ruling power is invested with authority to dispose of them by sale or gift. According to the Moohummudan Law, therefore, slavery can originate in one way only, namely, by Isteela, as above defined; and there are three descriptions of slavesMumlook or acquired, Mowroos or inherited, and Mowhoob or given. The offspring of these three descriptions of slaves are termed Khânêh Zad (viz. born in the house), and they continue in a state of slavery, unless emancipated by their masters.

CHAPTER IX.

PRECEDENTS OF ENDOWMENTS.

CASE I.

Q. Can an individual assign, in payment of his wife's dower, lands which have been appropriated to a religious endowment? Have the partners in the property so assigned a right to claim it? and if so, is the assignment of it in dower rendered null and void? and, supposing any of the partners in the property so assigned to acquiesce in and assent to its being assigned in payment of dower, will the act of such person be good against her heir?

perty cannot

R. In Law, property appropriated to an endowment, Endowed prois neither a fit subject of inheritance, nor of sale, nor be inherited, of dower,* because, according to the received opinion, sold, or assigned in a thing so appropriated is the property of no indivi- dower. dual, but appertains to the Almighty. If the trustee of an endowment should have made an assignment of the nature alluded to, he should be deposed, on account of his breach of trust. The ruling authority has the power of appointment in the absence of the appropriator or his executor. The dower of a woman is a just debt; and cannot be extinguished without payment, or relinquishment on her part. As property appropriated to an endowment is not a fit subject of inheritance, a claim founded on partnership by right of inheritance is inadmissible. If any one assign property so appro- And should priated, in payment of his wife's dower, and the trustee when so dis acquiesce in such assignment, he should be deposed, posed of, and on account of his breach of trust; and after his being

* See Prin: Endt; 2,

be resumed

trustee removed.

so deposed, the ruling power should appoint in his place another trustee, who will be competent to reclaim the lands so appropriated, which had been assigned in payment of dower.

Sale of endowed lands

admissible.

CASE II.

Q. 1. Has a superintendent the right of selling endowed lands, for the purpose of defraying the expences attendant on the repair of the buildings of the endowment?

R. 1. Generally speaking, the gift or sale of endowed by a superin- lands is illegal. It is incumbent on the superintendent tendent when to apply the profits of the lands, in the first instance, to defray the expence of repairing the buildings of the endowment, and the surplus may be applied to other purposes connected with the institution; although the person who founded the endowment may not have specified the repairing them as a condition. If the profits of the lands are not sufficient to cover the expence of necessary repairs, the trustee is at liberty to dispose of such portion of the lands as may enable him to effect this purpose, because the preservation of buildings is, in all cases of endowment, a matter of indispensable necessity.*

Q. 2. Supposing the superintendent, under pretence of applying the proceeds to the repairs of religious edifices, disposes of the endowed lands, but in reality applies the proceeds to other purposes, will such sale be upheld or set aside?

But sale should not be resorted to so long as any other method of realizing the necessary funds may exist, and even in that case judicial authority should be obtained. This is agreeable to the opinion of Hisaboodeen-ul Bokharee cited in the Futawai Hummadea, and other works.

misappropri

R. 2. The reply to the first question will show, that Rule where a sale of endowed lands made by a superintendent, for proceeds are purposes other than to defray the necessary expences ated. of repairs, is illegal. Therefore, a sale being made, and the proceeds being applied to other purposes, it will be set aside, and the superintendent should be deprived of his office, for breach of trust.*

CASE III.

Q. 1. Certain lands were conveyed by royal grant to the superior of an endowment to hold generation after generation, and the produce to be appropriated to the maintenance of himself and the religious endowment. The grantee died childless. In this case, has his mother, or have his sisters, any legal proprietary right to the lands granted as above; and if so, in what proportions?

R. 1. Royal grants are of two descriptions. The of Altumgha. one is called Altumgha and is made for personal purposes. To such an estate, on the death of the grantee, the sharers and residuaries succeed to their legal portions according to the Law of Inheritance. The other is made for charitable and religious purposes and is termed wuqf. With respect to the latter no claims of of Wuqf. inheritance are admissible; and, after the death of the superior, his mother and sisters have no better title to Wuqf proper. the succession in proprietary right than any other per- ty not partiIn the award of shares to persons entitled to participate in the benefit of an endowment, the Law makes no distinction between males and females. A But proceeds partition of the endowment itself is illegal, but a par- partible. tition of the profits arising therefrom is allowable.

sons.

* See Prin: Endt: 2, 3, 5,

ble.