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TMI Blog1882 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... is other heirs. But the right of inheritance under the Muhammad an law con(sic) no vested interest so long as the owner of the property is alive. Till the devolution of inheritance takes place by the death of the proprietor, his heirs have no legal interest or share in the property, and can in no sense be regarded as co-sharers or coparceners in the property the rights of a Muhammadan proprietor are absolute, and so far as his proprietorship is concerned, his heirs have no more rights than absolute strangers wholly unconnected by consanguinity or marriage. The word "stranger" as used in the Muhammadan law of pre-emption has no reference to any relationship arising from consanguinity or marriage. The words is a correlative term to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Court the fact that the property be fixed as dower and given to the wife, or that a certain sum be fixed as her dower, and afterwards, with the mutual consent of the husband and the wife, a property be given in lieu of the dower, makes no difference. The result, in the opinion of the Court, is that, when any property is given to the wife in lieu of her dower, there can be no claim for pre-emption." This view of the law is only partially correct, and its inaccuracy lies in ignoring the great distinction which exists between assigning a property as dower and selling it in payment of the dower-debt. The rule of the Shiah law upon this point is thus expressed in the Sharaya-ul-Islam:--"If the share has been assigned as a do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex necessitate rei, that the right of pre-emption can operate and be effectively enforced only in those cases in which the consideration for the transfer is either already fixed at a definite money-value, or is capable of being so ascertained. Now, the Muhammadan law imposes no limit upon the amount of dower which may be settled on a wife in consideration of marriage. Therefore when a man, on marrying a woman, does not fix the amount of dower at a money-value, but assigns property to her as her dower, the right of pre-emption cannot have any operation--the transfer not being a sale, and the consideration thereof being unascertained and unascertainable at a definite money-value. But no such impediment the operation of the right of pre-emptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognized authority among the Shiahs--which contains a tradition related by Hasan Ibn Mahbuh on the authority of Abu Jaafar. The following is a literal translation of the original Arabic text of the tradition:-- "I asked him in regard to a man who married a woman in lieu of (Ar : ala) an apartment of a house whilst having co-sharers in that house. He said that it was lawful for him and for her, and none of the co-sharers had a right of pre-emption against her." 5. Whilst fully recognizing the authority of the tradition in the Shiab law, we are of opinion that it does not support the contention of the learned pleader for the respondents. The original Arabic expression ala baitin which occurs in the tradition, if translated absolu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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