Karamat Husain, J.
1. Musammat Alhan Bibi brought an action for the recovery of her share in the landed property of her deceased husband and sought other reliefs also. One of the pleas in defence was that she, as a widow governed by the Shia Law, was not entitled to any share in the landed property loft by her husband. Both the Courts decreed the claim, remarking that no authority was cited to support the plea in defence. The defendant Murtaza Husain has preferred a second appeal to this Court and it is contended on his behalf that the plaintiff as a Shia widow has no share in the landed property left by her husband. Alhan is not a childless widow and admittedly has a daughter Abida Bibi by her deceased husband.
2. There certainly is a difference of opinion among the Doctors of the Shia Law regarding the right of a widow who has a child by her deceased husband and is governed by the Shia Law to have a share in the landed property left by her deceased husband. The author of the Sharaia is of opinion that she gets a share in all the property including land left by her deceased husband. See Text No. 3 p. 38 in Fazl Rab v. Khatun Bibi 15 A. 29 at p. 38. The authors of the Masalikul Afham (see Text No. 7 p. 41), the Jamaul Shatat (see Text No. 8 p. 42), the Sharah Kabir (see Text No. 9 p. 43)--these texts with their translations are given in Fazl Rab v. Khatun Bibi 15 A. 29 at p. 38 and the author of the Jawaherul Kalam--for the opinion of the Jawaherul Kalam see text (a) in this judgment--hold a contrary view, place a widow who has a child on the same footing with a childless widow, and debar both from sharing in the landed property left by the husband.
(a) There is no doubt in that the best opinion (lit: strongest) is that there is no distinction between a widow who has a child and a childless widow in being debarred from inheritance. There is no doubt also in that the best opinion is that she is debarred from inheriting the corpus of every distinction between inclosures and dwelling houses and other kinds of landed property.
3. Jawaherul Kalam (commentary of Sharaiul Islam) Book of Inheritance, the fifth Masala p. 287.
4. In support of his contention the learned vakil for the appellant relies on the text of the Jawahir and other works which are in his favour and are quoted in Fazl Rab v. Khatun Bibi 15 A. 29 at p. 38. He further says that the author of the Sharaia also in a latter work of his called the Mukhatsar-ul-Nafia came round to the view that there was no distinction between the two classes of widows and that both were debarred from getting a share in the landed property left by the deceased husband. He infers this from the use of the term 'woman' without making any distinction. This inference of the learned vakil is natural and the author of the Sharaia may have abandoned the view expressed in the Sharaia. The text of Mukhtasar Nafia is marked (6) and is as follows:
(b) A husband inherits all that the wife leaves and likewise a wife inherits all except land, and she inherits the value of chatties and buildings.
Mukhtasar Nafia (Book of Inheritance) second 'Mauksad.'
5. He on the basis of the text of the Mukhtasarul Nafia and other texts which favour his contention asks the Courts to follow them in preference to the text of the Sharaia which debars a childless widow only from taking a share in the landed property of her deceased husband. In addition to the authorities already referred to the learned vakil for the appellant relies on the following traditions:
(a) A woman does not inherit from her husband the ground of a house or land bat when the price of bricks and wood is ascertained then a fourth or an eighth part is given to her in the price of bricks, beams and wood.
(b) A woman does not inherit from what her husband has left anything of villages, houses, arms and cattle, and she inherits from goods, carpets (farsh) clothes and furniture of the house left by the husband. The price of materials, doors, beams and wood is ascertained and her share is given to her.
(c) Women do not inherit from land nor from buildings.
(d) A woman inherits from the materials and does not inherit anything in sites.
(e) The share of a woman is fixed in the price of wood and bricks lest she should marry a stranger and thrust him on the family.
(f) The women do not inherit anything from land but the price of bricks and wood is given to them.
(g) There is nothing for women in the houses or buildings.
(h) I asked about the inheritance of Women and ho replied. The price of bricks, materials, wood and reeds is for them, as for lands and buildings there is no share for them in that.
(i) A woman does not inherit anything from what her husband has left of villages, houses, arms, and cattle; she inherits from goods, slaves, clothes, and the furniture of the house which he has left. And the price of the materials will be ascertained and her share given her therefrom.
(j) The women do not inherit anything from houses nor from land but when a building is erected she will get her share in its materials.
(k) A woman does not inherit from what her husband has left of the ground of the house or the land, but when the price of building, beams and wood is ascertained she will be given her share from the price of the building, as for the ground, she will not be given anything from land or from houses.
(l) Women do not inherit anything from the building. They have a right in the price of buildings and by 'women' is meant wives.
Traditions g. k. and l. are from the Manlayahzarhul Faqih (Chapter Nawadirul Mawaris);. others are from the Thazibul Ahkam (Kitabul Faraiz wal Mawaris Bab Almirasul Azwaj) and the Istibsar (Abwabul Faraiz) in the Chapter That a woman does not inherit from a building &c.;
6. The learned Counsel for the respondent in answer to the authorities relied by the learned vakil for the appellants says that preference must be given to the authority of the Sharaia which has long been recognised by the Courts in British India and relies on Bailie's Imamiah pp. 295-338 and 381.
7. The Tahzibul Ahkam, the Istibsar and the Manlayahzarhul Faqih are collections of traditions only (see Morley's Digest C. C. L. X.), and regarding the traditions quoted by the learned vakil from these works, it is sufficient to remark that the Courts in British India in administering the Muhammadan Law are to be guided by the rules laid down by the doctors of Muhammadan law. These Courts may not take upon themselves to infer any rule of Muhammadan Law from the tradition or even from the text of the holy Quran. Their Lordships of the Privy Council in Aga Mahomed Jaffer Bindanim v. Koolson Bibee 25 C. 9 : 24 I.A. 196 : 1 C.W.N. 449 remark: 'Their Lordships on these authorities must hold that a Muhammadan widow is not entitled to maintenance out of her husband's estate in addition to what she is entitled to by inheritance or under his will. They do not care to speculate on the mode in which the text quoted from the Quran which is to be found in Sura 11 vv. 241-2 is to be reconciled with the law as laid down in the Hedaya and by the author of the passages quoted from Bailie's Imamia. But it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Quran in opposition to the express ruling of commentators of;such great antiquity and high authority.' What their Lordships have said about the Quran will apply with greater force to the traditions.
8. The Courts in British India not being justified in drawing their own inference from the traditions or the Quran, the traditions cited by the learned vakil cannot be of any value for deciding the point before me. In this connection I may note that in Fazl Rub v. Khatun Bibi 15 A. 29 at p. 38 text No. 10 is cited from the Wasailul Shia which is a collection of traditions and not a book on Muhammadan law by a Shia Jurist and which could not be cited in support of any rule of the Shia Law. Coming to the case law on the subject I find that there have been rulings that a childless widow governed by the Shia School of Muhammadan Law is not entitled to any share in the land left by her deceased husband : Musammat Toonanjan v. Musammat Mehude Begam N.W.P.H.C.R. (1867) at p. 13; Musammat Asloo v. Musammat Umdutoonissa. 20 W.R. 297; Uumardaraz Ali Khan v. Wilayat Ali Khan 19 A. 169; Mir Ali Husain v. Sajuda Begum 21 M. 27; Aga Muhammad Juffer Bindanim v. Koolsom Bibi 25 C. 9 : 24 I.A. 196 : 1 C.W.N. 449. But so far as I am aware the point that a widow who has a child by her deceased husband takes no share in the land left by her deceased husband and in this respect stands on the same footing with a childless widow, has not been the subject of decision in any reported case. The point is very important and will affect the Shia Muhammadans of British India.
9. Had I boon answering the question as a servant of the Muhammadan Law I would have brushed aside all the traditions that draw a distinction between the movable and immovable property left by the deceased husband for the purpose of giving a share to his widow, or between a childless widow and a widow who has a child for debarring the one from inheriting land and not debarring the other, and would have entirely rejected such opinions of the doctors of the Shia Law as accepted those distinctions. I would have answered without the least hesitation that a widow governed by the Shia Law whether 'childful' or childless is entitled to her share in the movable and immovable property of her deceased husband. The reason for such an answer is very simple. The Muhammadan law of inheritance is based on the following text of the Quran.
Moreover, ye may claim half of what your wives shall leave, if they have no issue, but if they have issue, then ye shall have the fourth part of what they shall leave after the legacies which they shall bequeath, and the debts be paid. They also shall have the fourth part of what we shall leave, in case ye have no issue, but if ye have issue, then they shall have the eighth part of what ye shall leave after the legacies which ye shall bequeath, and your debts be paid.' Sale's Quran p. 61.
10. In the above text the share of Muhammadan widow (without any distinction of being 'childful' or childless) in the property left by her husband, without any distinction between movable and immovable, is fixed as 1/8 or 1/4 as the case maybe prior to the disintegration of Islam into Shiaism and Sunniism. It is fixed in the most unambiguous and the clearest of terms.
11. Such being the case all the traditions, which are in conflict with the express authority of the Quran in. dividing the property of the husband into movable and immovable and in classifying his wives into childless and 'childful', are of no weight and the opinions of the doctors of the Shia Law which are based on those traditions and which discard the express text of the Quran cannot represent the correct rule of law. 'The Quran though variously interpreted is regarded by the Musalmans of every denomination as the fountain-head and first authority of all law religious, Civil and Criminal. (Morley's Digest CCXXVII). Hadis (tradition) comes next to the Quran; and when the Quran makes no distinction between the movable and immovable property left by the deceased husband, or between a widow who has no child and the one who has the introduction of such distinctions by the traditionalist and by the lawyers, who base their opinions on those traditions without much regard to their authenticity and without applying to them the tests applicable to historical evidence, is an innovation and cannot be regarded as an interpretation put upon the text of the Quran in the correct sense of the term. The following remarks will demonstrate that a so-called rule of the Muhammadan Law which is in direct opposition to a rule of law laid down in the Quran cannot possibly be a rule of the Muhammadan Law:
The Quran is the first and absolute source of the Muhammadan Law and the rules of law contained therein are according to Muhammadans founded on direct revelation from God. Being divine their authority is absolute and they cannot be altered. The Quran, however, is silent on many points and its text bearing on various rules of law admits of more than one interpretation. Hence in order of time traditions (hadis) become the second source for the rules of the Muhammadan Law. ' Whenever the Quran was not found applicable to any particular case which soon happened as the social relations and wants of the Arabs became more extended, recourse was had to the Sunnah (precept and example) or Hadis (sayings, traditions), that is, the oral law which was and is at the present day, held to be only second in authority to the Quran itself' (Morley's Digest CCXXVII).
12. The mode of the genesis of the second source for the rules of Muhammadan Law clearly shows that it came into existence, so far as the rules are concerned, with the only object of interpreting the text of the Quran and supplementing it on the points on which it was silent. The function of the traditions is to give information on the exact moaning of certain passages of the Quran and to state a rule of law on those points on which the Quran is silent. In the nature of things it is impossible for a tradition to change, abrogate or contradict, any rule of law which is founded on the text of the Quran. If we, therefore, come across any tradition which abrogates or contradicts any rule of law laid down in the Quran we must regard it as spurious and false and must not make it a basis for any rule of law.
13. I am not, however, to approach the question I have to decide as a servant of the Muhammadan Law. I must decide it as a judge, and must choose one of the two; conflicting views of the doctors of the Shia Law. Taking into consideration all the; facts bearing on the question I adopt the view set forth in the Sharaia that a widow who has a child by her deceased husband is entitled to a share in both the movable and immovable properties of her deceased husband, in preference to the view taken by the author of the Jawaherul Kalam and others that she like the childless widow is debarred from inheriting the landed property left by her husband.
14. My reasons for deciding in accordance with the rule as laid down in the Sharaia are the following:
(a) The Sharaia* is considered to be a work of the highest authority and the chief authority for the law of the Indian followers of Ali. In it we have a safe and certain guide for administering the Shia Law. If we begin to reject the rules of the Shia Law as set forth in it and adopt the views of other Doctors of Law which are opposed to the rules of law expounded in the Sharaia we shall be pursuing a highly dangerous course.
15. We shall upset a well settled state of certain branches of the Shia Law and replace it by confusion and chaos. This I am not prepared to do. I am not concerned here with comparing the relative value of the Sharaia on one hand and the Jawahir, the Masulik, the Shara Kabir on the other, nor do I say that in no case reliance is to be placed on Jawahir and other works on the Shia Law. The Jawahir in fact is the best and the most exhaustive work of the last century on the Shia Law. Whenever any text of the Sharaia is to be interpreted or explained recourse must be had to the Jawahir and other works. In the same manner, when the Sharaia is silent on any point the Jawahir, the Jamaul Shatat and other works may be quoted as authorities. I only hold that in cases of a conflict between the Sharaia and any other work of recognised authority on the Shia Law the Courts in British India in administering the Shia Law must follow the Sharaia and must not discard it in favour of any other works of established merits.
(b) The Courts in British India began to recognise the authority of the Sharaia so far back as 1799. In Azimuddin v. Fatima Beebee 1 S.D. Rep. 24 certain extracts were cited from the Sharaia Islam as showing the doctrine of the Shia School as to gift of part of an undivided whole and as to possession. From that time downwards the Sharaia has always been followed in deciding cases governed by the Shia Law.
16. I have not come across any reported case in which the authority of the Sharaia was superseded by the authority of any other work on the Shia Law. To disturb the authority of such a work after more than a century is against the well established principles underlying the administration of justice.
(c) Of the two conflicting views the one adopted by the author of the Sharaia is more conducive to the peace and happiness of the families and more in harmony with modern notions which regulate matrimonial relations.
17. For the above reasons I hold that the plaintiff as a widow, who has a daughter by her deceased husband, is entitled to her share in the landed property of her deceased husband.
18. The result is I uphold the decree of the lower appellate Court and dismiss the appeal with costs including the fees in this Court on the higher scale.
* The most generally known of all the Shia lawyers is the Sheikh Najmud Din Abu al Kasim Jaffar Ben Muayyid al Hilli commonly called the Shaikh Muayyid. He died in A. H. 676 (A. D. 1277). His great work the Sharaia-ul-Islam is more universally referred to than any other Shia Law book and is the chief authority for the law of the Indian followers of Ali.
(Morley's Digest CCLXXVII).
' With the exception of the last Book it is composed entirely of translations from the Shara-ul-Islam, a work of the highest authority, which has entered largely into the Digest of Shia Law compiled under the superintendence of Sir William Jones.
(Ballie's Imamia XXVI.)