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Aga Sheralli Vs. Bai Kulsum Khanum - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberCivil Application No. 526 of 1904
Judge
Reported in(1908)10BOMLR717
AppellantAga Sheralli
RespondentBai Kulsum Khanum
Excerpt:
.....record to grant the application for review sought by the appellants who were unsuccessful before us on the first hearing of their appeal. baillie's digest of mahomedan law, which appears to be largely composed of translations from an authoritative text-book of shiya law, sharayai-ul-islam, confirms us in the, conclusion that in the third class as well as in the first and second, succession is stirpital. 386 and those that follow point clearly to that conclusion. 10. we have now had further opportunity of examining the record and examining it with the assistance of the arabic translator, and it is apparent to us that the absence of the negative from the fifteenth passage might very well have been a copyist's error, while it is impossible to treat the presence of the negative in the..........it is now conceded before us that in the case of those coming within the first and second classes, succession is stirpital. why should it not be so in the case of the third class 5. a further examination of the relevant passages in the second part of mr. baillie's digest of mahomedan law, which appears to be largely composed of translations from an authoritative text-book of shiya law, sharayai-ul-islam, confirms us in the, conclusion that in the third class as well as in the first and second, succession is stirpital.6. the passages read to us, and more particularly that at pages. 386 and those that follow point clearly to that conclusion. and the extracts from commentators which have been brought to our notice in our opinion, strongly support that view.7. it is admitted by mr......
Judgment:

Lawrence Jenkins, C.J.

1. We have taken advantage of an error apparent on the face of the record to grant the application for review sought by the appellants who were unsuccessful before us on the first hearing of their appeal. We were the more ready to do this as we were told that there were now additional materials in the shape of further and more accurate translations of works by commentators who had discussed the question with which we are concerned.

2. That question is, whether under the Shiya Law the succession in the case of descendants of paternal uncles and aunts is stirpital or capital. On the former occasion we held that it was stirpital.

3. The heirs by consanguinity under the Shiya Law of inheritance fall into three classes. In the first clas3 are, first the parents, and secondly children and other lineal descendants. In the second class there are first grand parents and ascendants and secondly brothers and sisters and their descendants. And in the third class come paternal and maternal uncles and aunts of the deceased and his parents and their descendants.

4. It is now conceded before us that in the case of those coming within the first and second classes, succession is stirpital. Why should it not be so in the case of the third class

5. A further examination of the relevant passages in the second part of Mr. Baillie's Digest of Mahomedan Law, which appears to be largely composed of translations from an authoritative text-book of Shiya Law, Sharayai-ul-Islam, confirms us in the, conclusion that in the third class as well as in the first and second, succession is stirpital.

6. The passages read to us, and more particularly that at pages. 386 and those that follow point clearly to that conclusion. And the extracts from commentators which have been brought to our notice in our opinion, strongly support that view.

7. It is admitted by Mr. Faiz Tyabji that he can only rely on one of those passages as being in his favour, that is, the passage which was marked 8th on the former hearing and is now 15th.

8. It is quite true that there is a statement there which seems to support his contention. But that statement is in direct conflict with an exposition of the law as laid down by the same author in another work, and as between these conflicting statements we have no hesitation in again accepting the fourteenth passage as it now is, as being the true statement of the writer's views.

9. This conflict of views arises from the fact that in one case a negative is present and in the other case it is absent.

10. We have now had further opportunity of examining the record and examining it with the assistance of the Arabic Translator, and it is apparent to us that the absence of the negative from the fifteenth passage might very well have been a copyist's error, while it is impossible to treat the presence of the negative in the fourteenth passage as due to any such accidental cause. For, the sentence in which this negative appears, read with that which immediately follows it, shows that the negative was absolutely necessary for the purpose of giving expression to the writer's views. And we further think, reading the whole of the fifteenth passage, that the negative would be more consistent with the general views there expressed. So that it comes to this that the only passage on which Mr. Faiz Tyabji is able to rely in support of his conclusion is one which we are unable to accept for the reasons we have here indicated as being the true exposition of the law.

11. The result is that as on the former occasion we confirm the decree with costs.

12. The appellant must pay the costs of this appeal and the costs of the application for review.


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