B. Pearch PRINCIPLES AND PRECEDENTS OF Moohummudan Law, BEING. A COMPILATION OF PRIMARY RULES AND A Selection of Legal Opinions involving those points, delivered TOGETHER WITH NOTES ILLUSTRATIVE AND EXPLANATORY, AND Preliminary Remarks. BY W. H. MACNAGHTEN, Esq. OF THE BENGAL CIVIL SERVICE. Calcutta: PRINTED AT THE CHURCH MISSION PRESS, MIRZAPORE; AND SOLD BY SAMUEL SMITH AND CO. HURKARU PRESS AND LIBRARY, PRELIMINARY REMARKS. THE want of some practical information on the subject of Moohummudan Law has long been felt and acknowledged by those whose duty it is to decide matters of civil controversy agreeably to its principles. The translation of the Hidaya, indeed, is calculated to extend a general knowledge of that Code, but it is of little utility as a work of reference, to indicate the Law on any particular point which may be submitted to judicial decision. Questions which are likely to be litigated give place to extravagant hypotheses, the occurrence of real cases, similar to which, is beyond the verge of probability. The arrangement is immethodical; the most prolix and irrelevant discussions are introduced; every argument, however absurd, both for and against each particular tenet, is urged and combated (often with doubtful success); and the reader is frequently at a loss to determine which opinion to adopt and which to reject. "No branch of Jurisprudence is more important than the Law of Successions or Inheritance; as it constitutes that part of any national system of laws which is the a most peculiar and distinct, and which is of most frequent use and extensive application."* The subject unquestionably is of the greatest importance, as affecting the interests of all descriptions of people; but the Hidaya is entirely silent on the subject. · It deserves special notice as giving rise to interminable litigation; a result attributable, more probably, to the almost universal ignorance of the people who are affected by it, than to any intricacy or obscurity of the Law itself. No English writer, that I am aware of, has treated of the Moohummudan Law of Inheritance excepting Sir William Jones, who translated the Sirajyah, a celebrated work on that subject; but, being a version of a scientific Arabic treatise, the style of his work is necessarily abstruse, so much so, that a knowledge of the original language is almost requisite to the study of the translation. In his abstract translation of its commentary (the Shureefeca) he has introduced such illustrations only as appeared to him (who was thoroughly acquainted with the text) necessary to facilitate the understanding of it. For these considerations I was induced to undertake the work which is now with diffidence submitted to the Public. Conscious of my inability to do justice to the task, I may yet venture to express a hope, that my labours may prove of some assistance to my judicial brethren, or that, at least, an abler individual may follow up with success the work which I have so imperfectly commenced. I am aware that, among other faults, I may be charged with being obscure, where I laboured at brevity, and with being tiresome, where my Colebrooke's Preface to the two Treatises on the Hindoo Law of Inheritance. object was illustration. I can only say, that I have endeavoured, as much as was in my power, to avoid technicalities, and to treat the subject with all the perspicuity of which it is susceptible. I have spared myself no pains in my researches to establish the accuracy of the legal doctrines here laid down, and to those who are disposed to view with approbation any attempt, however humble, at the promotion of justice, it may perhaps seem reasonable, that the disadvantages of the author should be weighed against his imperfections. Continual want of leisure and occasional privation of health have attended me during the progress of this work. I should mention, that the compilation is (excepting the assistance derived from learned natives) entirely and exclusively my own, and that it consequently possesses no official weight whatever, and no authority, beyond that which may be ascribed to it by individual confidence. The brief disquisition on the Moohummudan Law, which I have here ventured to introduce, may not be matter of much utility; but I was amused by the analogy occasionally observable between this and other Codes of Jurisprudence, and it appeared to me, that by recording such observations as my limited knowledge suggested, I might be the means of attracting the attention of others to the genius of the Law in question. The provisions of the Moohummudan Law of inheritance have for their basis the following passages of the Koran; "God hath thus commanded you concerning your children. A male shall have as much as the share of two females; but if they be females only, and above two in number, they shall have two third parts of what the deceased shall leave; and if there be but one, she shall have a 2 |