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TMI Blog1916 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... , to what extent? The answer must be in the negative. 2. On the death of a Muhammadan, the inheritance vests in his heirs according to their respective shares, although in the administration of the estate the funeral expenses, debts and legacies must be paid first and it is only the residue that is available for distribution among the heirs. It is not correct to say that the devolution of the estate on the heirs does not take place or is postponed until the funeral expenses and the debts and legacies have been paid. This is evident from the following facts : if an heir designated by the law dies after the death of the propositus his share descends on his own heirs and does not lapse to the i general estate. Bach heir is entitled to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pes successiones until death actually takes place, and the heirs entitled to succession are not ascertained until then. It is upon this theory that the right to bequeath by will is treated as a concession to the deceased and is limited to one-third of his possessions. The result is, on the death of a person his estate is to be divided in this way, one portion for the deceased himself equivalent to so much of the estate as is necessary and sufficient for meeting his funeral expenses, debts, obligations and bequests the last not exceeding one-third of the estate and what remains is to be distributed among the heirs according to their respective shares. Funeral expenses, debts and legacies are given preference because they are allowed by virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of them is not distinguishable from the other. The term Shirkat, however, is extended to contracts, although there be no actual conjunction of estates, because a contract is the cause of such conjunction. In the language of the law it signifies the union of two or more persons in one concern. (See Grady, Book XIV, p. 217.) This definition, however, must be read with what follows and, so reading, it will be clear that Shirkat is a generic term of law and applies both to joint ownership and to contracts of partnership. The former is called Shirkat-ul-Milk which is translated by Mr. Hamilton as partnership by the right of property ; and the latter, which is partnership proper in the sense of the English law, is called Shirkat-ul-Akd. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in Hasan Ali v. Mehdi Hussain I.L.R. (1877) A. p. 533. The statement in Pathummabi v. Vittil Ummachabi I.L.R. (1902) M. 734 was purely by way of obiter dictum and, with all respect to the learned Judges they failed to bear in mind that, the provision of the Muhammadan law, that a decree against one heir in possession of ail the effects of the deceased, is binding on all if obtained after contest, is part of the processual law of that system and is not based on the ground that a single heir, if he happens to be in possession of the estate of the deceased, represents the rest of the heirs for the purposes of administration generally. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to such decree which I have italicised are a material part of the proposition and, negative, by implication, the suggestion that, apart from a decree of Court, a single heir represents the entire estate of the deceased and can deal with the shares of the co-heirs without their consent. In other text books of Muhammadan law, such as Bahrurraiq and Alimajullab, the same proposition is laid down under the heading of 'Claims'. Nowhere have I found any general statement that, apart from representation in suits, one heir is entitled by his acts to bind the shares of the others. The dictum to the contrary, therefore, in Pathummabi v. Vittil Ummachabi I.L.R. (1902) M. 734, and the decision in Hasan Ali v. Mehdi Husain I.L.R. (1877 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y alienations are concerned, which alone form the subject-matter of reference, the Muhammadan law is clear that one of the heirs of a deceased person is not competent to bind the other heirs by his acts. Charles Gordon Spencer, J. 13. I agree with the judgment of Mr. Justice Abdur Rahim just now pronounced. K. Srinivasa Ayyangar, J. 14. I agree. In the absence of any right in one of the heirs to represent the co-heirs, one of several co-heirs can only deal with his or her interest in the ancestor's property inherited by them. My learned brother has shown that there is nothing in' the Muhammadan law giving such a right to one of the co-heirs who may happen to be in actual possession of the whole of the ancestor's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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