FOETUS AS HEIR AND LEGATEE IN HANAFI LAW

FOETUS AS HEIR AND LEGATEE IN HANAFI LAW <!--[if gte mso 10]> FOETUS AS HEIR AND LEGATEE IN HANAFI LAW By Lucy Carroll 1. The Posthumous Child as Heir to his Father: Khuda Bux v. Government of Sind[1] Khatedar Gulsher left two wives and five children-- one son and three daughters by one wife and one son by the second wife. His property was divided among these seven relatives. Some years later a dispute broke out among his heirs in the course of which the only child of the second wife alleged that his mother had been pregnant at the time of his father's death, and that she had been delivered of a male child three months later; the child died in infancy, surviving but a few months. Since such a posthumous child would have been an heir to Khatedar Gulsher's property, and his share would have passed on his death to his mother and brother, a move was made to have the distribution of Khatedar Gulsher's estate recalculated. The Assistant Commissioner ordered a re-determination of the division of the estate. Dismissing Constitutional Petition filed by one of the relatives who would be disadvantaged were the determination of shares to take place on the basis that the deceased had left three sons instead of two, and leaving the petitioner to pursue his proper remedies through more appropriate means, the Karachi High Court observed: 1n Islamic law the child in the womb, the foetus, is an heir alongwith other heirs, provided it is present in the womb of the mother at the time of death of the ancestor and is. born alive within six months from the death of [the] ancestor born after a period of more than six months, there is no inheritance for him. It is so stated by Shamsul A'immah Imam Sarakhi (d.482 A. H .) in his well-known work "Al-Mabsut' Vol. XXX, pp.50-51...[2] However, the rule concerning birth within six months of the death of the propositus, relied upon in this passage, is the rule applicable in the case of a child born to a married woman [3] or to the widow of any relative of the propositus; it does not apply to the case of the' widow of the propositus himself. 'Ancestor' in the passage quoted by the Court clearly refers to any ancestor other than the child's .own father, as well as to a collateral relative. The period of six months represents the minimal period of gestation; thus any child born within six months of a given date was undoubtedly conceived before, and thus in existence on, the given date. In the case of a widow or a divorcee, however, any child born within the maximum period of gestation [4] is legally affiliated to her deceased or former husband. The maximum period of gestation in Hanafi Law is set at two years. Thus, a child born to P's widow (or to his divorced wife) is P's legitimate child and his heir even though born more than six months after P's death. However, in the case of a foetus in the womb of the widow or divorced wife of any relative of P, inheritance to P depends not only on the child's legitimate birth, but also upon its birth within. six months from the death of P, because the child's 'paternity being already established, and the question reduced to one of mere inheritance, it is necessary to establish his existence in the womb at the death of the party from whom he claims to inherit, and that can be predicated with certainty only when he is born at or within the shortest period of gestation, reckoning from that event'. [5] Note that when the child is not P's posthumous child, its legitimacy is established by reference to the period of maximum gestation reckoned from the date of the death of its own father (or the date of its mother's divorce), while its right to inherit from P is established by reference to the period of minimum gestation reckoned from the date of P's death. i.e., the questions of legitimate descent to its own father and of heirship to P are distinct; legitimacy of descent though necessary, is not sufficient to confer heirship when the subsequently-born child is not P's own child. In the case of P's posthumous child (or a child born to his divorced wife), the questions of legitimacy and of heirship are coterminous; each is determined by reference to the maximum period of gestation reckoned from the death of P (or the date of the divorce). E.g.: P leaves pregnant widow. The subsequently-born child is an heir to P if born within the maximum period of gestation reckoned from the date of P's death. P's brother pre-deceased him by two days; P leaves his deceased brother's pregnant wife. The subsequently-born child is the legitimate child of, and heir to, P's brother if born within the maximum period of gestation reckoned from the date of the death of P's brother. It is an heir to P if born within the maximum period, of gestation reckoned from the death of P's brother and within six months of P's death. On the actual facts of the case before the Karachi Court--P's posthumous child having been born within three months of P's death--there was no difficulty in finding that it was an heir to his estate, even through the Court erroneously applied the six-months rule. It is important, however, to note that the child would equally have been a legal heir had it been born seven, or eight, or nine months--or even longer--after its father's death. II. Foetus as Legatee Considerations similar to those which apply in the case of the foetus as an heir intestate apply in regard to the position of the foetus as the beneficiary of a legacy. In his highly impeachable 'Textbook on Muslim Personal Law, [6] David Pearl deals with the question of the foetus as legatee as follows:‑ (DSP) The legatee must be in existence at the time the bequest is made. This raises the particular problem of the child en ventre sa mere. Such a child has a legal existence and is entitled to take a bequest if born within the maximum period of gestation from the date of the bequest. [David Pearl, "Textbook," 1987 edn., p:145] [7] The first point to note is that it is only when the bequest is in favour of a specifically identified individual that the rule concerning the existence of the legatee at the time of the bequest arises. Eg., a bequest to B, the son of A, is void if B is dead at the time the bequest is made. If, however, the bequest is to a person or persons generally identified, there is no requirement that he/they be alive at the time of the bequest. E.g., a bequest to the sons of A is perfectly valid, even if at the time of the bequest A had no sons at all; and all sons of A living at the time of the testator's death will share the bequest. The Fatawa-i-Alamgiri, which David Pearl pompously dismisses [8] but which he has clearly never read, makes this point quite clearly:‑ (FA) When a man bequeaths a third of his property to the sons of 'such an one,' [sic] and the person has no son at the date of the bequest, but sons are subsequently born to him, after which the testator dies, these sons are entitled to the third. And even though the person had sons at the date of the bequest, yet if they are not mentioned by their names [i.e., if they are only generally identified in terms of their relationship to their father, not specifically identified e.g. by name] the bequest could be to the sons existing at the time of the testator's death. So that if those in existence at the date of the bequest should die, and others are subsequently born, who are living at the time of the testator's death, these are entitled to the third of the property. [Baillie, Digest of Moohummudan Law, vol. I, p.646.] [9] The second point to note concerns a child in the womb. In Hanafi Law, in order to receive a legacy, the legatee must possess a legal existence at the date of the testator's death. In addition, a specifically-identified legatee must also, possess a legal existence at the date of the bequest. The unborn child is no exception to these rules. Although Sunni law recognizes extremely protracted terms of maximum gestation (in Hanafi law, the maximum period is two years), the jurists were fully aware that the vast majority of pregnancies come to fruition long before this generously-defined term has expired. All schools of Muslim law also recognize a minimum period of gestation, unanimously set at six months. Now, the question is, how would you prove that the child subsequently born was legally in existence at the relevant time? Would you look to the recognized period of maximum gestation? Of course not, because a child born within two years [10] of the relevant date might well have been conceived long after that date; the possibility is particularly obvious when the child's mother is married. Or would. you look to the period of minimum gestation? Reference to the latter period would conclusively prove that the child had been conceived before the relevant date. The point cannot possibly be made more clearly and concisely than it is in the following passage from the Hedaya (which David Pearl pompously dismisses but which he has clearly never read; see fn. 8 above):-‑ (Hed.) A bequest .. in favour of a foetus in the womb (i.e., a specifically identified foetus] is valid. -- A will in favour of a foetus in the womb ...Us] valid provided the birth happen in less than six months from the date of the will. [Hedaya, Grady edn., p.674] The distinction between the rule applicable in the case of a general bequest encompassing a child yet unborn and in the case of a specific bequest to a particular foetus was discussed by the Lahore High Court in a decision handed down more than three decades ago. In the course of its judgment the Court also referred to the period within which the specifically-identified foetus must be born in order to take the legacy in its favour:-‑ The rule relied upon by the learned counsel for the appellant has application where the legatee is a specified person or a [specified] foetus. In cases of that type the requirement of the Muslim Law is that in order to get the property bequeathed to it, the child must be either actually alive or be born within six months of the will. The period of six months is fixed as the extreme limit because the minimum period of gestation amongst human beings being six months, birth within that period of the will is conclusive proof of the fact that the child intended to be benefited will get the property bequeathed to it. The other rule is applicable where the legatee is not in the womb in the form of a foetus but is the unspecified child of a particular person, and in a case of this type the testator does not intend to confine the benefit to a specified child but wants to benefit the child or children of the person mentioned, the law is that the will in the latter kind of case will enure for the benefit of all those who answer the description provided they are in existence at the time. of the death of the testator .. In the present case the will was not in favour of a [specific] foetus but in that of any child of the testator's daughter that may be born to her, and the condition of birth of the legatee within six months of the bequest being inapplicable, the will was operative in favour of respondent as he was born before the death of the testator. [Mst. Channo Bi v. Muhammad Riaz, PLD 1956 Lahore 786, p.793]. Since the child was born before the death of P, the question of what the situation would have been had it been born after the death of P did not arise. It is to this question -- determination of the existence of the unborn beneficiary at the date of P's death -- that I now turn. One of the major defects of David Pearl's 'textbook' is his pattern of deliberately paraphrasing-- without acknowledgement or citation -- easily identifiable passages from the work of real scholars in the field. In the course of this exercise, he repeatedly demonstrates not only his ignorance of his subject, but also that he has failed to read even the source from which he is directly working with minimal intelligent comprehension. Thus, the statement extracted above from David Pearl's 'textbook' is clearly based on the second part of a passage from N.J. Coulson, succession in the Muslim Family (although, as usual, David Pearl does not cite the source from which he is directly working, the source which he is attempting to paraphrase): (NJC) A child in the womb has a legal existence and is therefore entitled to take a bequest. Such a legal existence is determined by the application of the legal presumptions relating to the gestation period in precisely the same manner as they are applied to determine whether or not an alleged child in embryo has a right of inheritance. [N.J. Coulson, Succession in the Muslim Family, p.227.] Thus far there is nothing exceptionable about Professor Coulson's statement. However, the passage continues:‑ (NJC) Where, however, a testator makes a bequest to a child whose existence he expressly acknowledges, the bequest will be effective if the child is born within the maximum period of gestation from the date of the acknowledgement, even if the child's mother is married. [N.J. Coulson, ibid.] Clearly, what Coulson, is presenting here is a special exception to the general rule-- one, incidentally, which I have not come across before -- not a statement of the general rule itself. Equally clearly, David Pearl has inaptly and inacurately paraphrased the second of these extracts from Coulson (without, as usual, acknowledging the source from which he is directly working) in putting forward the proposition, presented as the general rule concerning bequests to a foetus, found in his 'textbook.' Since Coulson refers to the rules of intestate succession and states that (in general and with the special exception he goes on to suggest) the position of the foetus as the recipient of a legacy 'is determined by the application of the legal presumptions relating to the gestation period in precisely the same manner as they are applied to determine whether an alleged child in embryo has a right of inheritance,' we might as well start here. David Pearl deals with the foetus as an intestate heir in two sentences:-‑ (DSP) A child en ventre sa mere has a right of inheritance even though he or she is not alive at the moment of death. [Sic] Again the detailed rules would not be an appropriate matter for discussion in a book of this kind and readers are referred to Coulson for the complexities of this subject, as also for the problems relating to illegitimacy. [David Pearl, 'Textbook,' 1979 edn., p.141;1987 edn., p.170.) Note the muddled and illiterate statement that a foetus has a right of inheritance 'even though... not alive at the moment of death.' A foetus may, of course, be physically dead within its mother's womb, but such a foetus can never be an heir for the simple reason that it is incapableo of being born alive; and being born alive is one of the preconditions of the foetus' right of inheritance. What David Pearl is attempting to say is that a foetus has a legal existence and may be an heir even though it is born after the death of the propositus. Note also that David Pearl refrains from stating the simple rule concerning the foetus as an heir intestate, although to state this rule would take little more space than his statement referring his readers to Coulson's book. [11] The rule is certainly important enough, and simple enough, to be included in even the most elementary treatment of the subject--even a work as elementary as that which David Pearl is making his second (highly unsuccessful) attempt to compile. And, in practical terms, the question of a foetus as an intestate heir is much more likely to arise than the question of a foetus as the beneficiary of a legatee. Since David Pearl purports to supply the rule for the latter situation, why does he not provide the rule for the former? The answer must clearly be that while he found something in Coulson's book which he assumed to be a statement of, the rule applicable in the case of a bequest (and which he inaccurately paraphrased in the passage set out above), he failed to find a similar statement in Coulson's book [12] to paraphrase and present as the rule concerning the foetus as an heir intestate. David Pearl's statement regarding the foetus as an heir intestate is probably based on the following statement from Coulson's book: (NJC) For the purposes of succession a child who is born alive is deemed by law to have been alive, and therefore, to have possessed rights of inheritance, from the time of its conception.... Its existence [at the time of P's death] will subsequently be established if it is born alive within such a period as indicates that it was conceived prior to the death of the propositus. [N.J. Coulson, Succession in the Muslim Family, p.204]. Professor Coulson's discussion of the period within which the child must be born in order to establish that it was conceived prior to the death of the propositus follows some pages later, and was apparently over looked by David Pearl. However, Coulson's discussion of the point is unsatisfactory since it does not note the important differentiation in Hanafi law between the rule applicable to the pregnant widow of the propositus himself and the rule applicable to the pregnant widow of a relative of P -- and it is Hanafi law with which David Pearl's 'textbook' is concerned. The basic rule concerning intestate succession, as correctly stated by Professor Coulson, is that the foetus must be born alive within a period indicating that it was conceived before, and thus legally in existence at the time of, P's death. In the case of a foetus in the womb of a married woman, this means that the child must be born within the minimum period of gestation (i.e. six months) from the date of the death of the propositus; if the child is born more than six months after P's death, there is a possibility that it was conceived after P's death and thus not in existence at the time of his death. In the case of a widow (or divorcee), the law presumes chastity and any child born to the woman within the maximum period of gestation ,from the date of her husband's death (or her divorce) is legally the legitimate child of her former husband. However, in Hanafi law the question of the right of the foetus as P's heir intestate is distinct from the question of its legitimate descent in cases where the foetus in question in not P's posthumous child. The posthumous child of P is an heir to P if born within the maximum period of gestation reckoned from P's death (or from the date of her divorce if the child's mother was divorced before P's death), but the foetus in the womb of a widow of a relative of P (or the divorced wife of such a relative) is only an heir to P if born within six months of P's death. When the pregnant woman is married, no difficulty arises, either in the case of a bequest to a specifically-identified foetus (who must be legally in existence at the time of the bequest [13]), or the case of a general bequest encompassing a child yet unborn (who must be legally in existence at the time of P's death). In the first case, the subsequently-born child will take the bequest if born within six months from the date of the bequest; in the second, if born within six months from the date of P's death. Difficulty arises in the case of a bequest (either general or specific) when the foetus in question is in the womb of a widowed or divorced woman. An analogy with the law of succession would suggest that the foetus would have to be born within six months of the relevant date [14] in order to establish its legal existence at the relevant time if the widow (or divorcee) concerned were other than P's own wife. [15] On the other hand, the disposal of property by will being a voluntary act, it could be suggested that a more generous rule would apply in this context and the existence of the foetus in the womb of the widowed or divorced woman at the relevant time would be referred to the period of maximum of gestation from the death of the widow's husband or her divorce, i.e., that in these circumstances the fact of legitimate birth would be sufficient to entitle the child to take the legacy. Most texts (and textbooks) give only the rule that a bequest in favour of a foetus is valid if the child is born alive within six months of the date of the bequest (i.e., the rule unambiguously applicable to a bequest to a specific child in the womb of a married woman). This fact makes the statement in David Pearl's 'textbook' extracted above (concerning birth within the maximum period of gestation from the date of the bequest) above all the more remarkable, and conclusively convinces me that he is attempting to paraphrase--without, of course, citing the source from which he is directly working-- the exception contained in the passage in Coulson's book which has been set out above, which he has misread, misunderstood, and inaccurately- paraphrased. However, the Durr-ul-Mukhtar, dealing with a bequest to a specific foetus, explicitly differentiates between the married woman and the widowed or divorced woman, applying the more generous rule in the latter case:‑ (DuM) It is valid to make a will in favour of an unborn child and to dispose of by will a child in the womb, by saying for example 'I bequeath the child in the womb of that slave... to so and so.' This, however, will be valid only when the birth takes place in less than six months, [16] in case the husband of the pregnant slave is alive, but should he be dead and should she be observing idda at the time the will was made, then the birth must take place within two years, because till then the child's descent shall be established in the deceased husband. [17] [Durr-ul-Mukhtar, Tamartashi trans., p.406] On the other hand, Ameer Ali opts for the strict rule analogous to that applicable in the case of intestate succession, [18] laying down that in the case of a bequest to a specific foetus in the womb of a widow or divorcee the child must be born both within six months from the date of the bequest and within the maximum period of gestation from the date of her widowhood or divorce. This clearly assumes that the rule applicable in intestate succession when the widow (or divorcee) is not P's widow (or divorced wife) applies in the context of bequests as well, and that legitimate birth alone is not sufficient to entitle the child to take the bequest. The application of the rule derived from intestate succession to the case of a legacy to a foetus would provide an explanation for the exception related by Coulson and which has so confused David Pearl. One of the circumstances which would induce a Muslim to leave a will would be the death of one of his sons. Any children of the deceased son would be disqualified as heirs to P's estate by the presence of P's surviving son. If P's predeceased son left a wife whose pregnancy has just become apparent and P sought to protect this grandchild by making' a will in favour of the foetus, the rule proposed by Ameer Ali would prevent this objective being achieved if the widow were less than three months pregnant, since birth would not take place within six months of the date of the ' will. (The disadvantage of a general bequest to any child/children of his daughter-in-law would be that such a will would benefit also children born to her by a second husband should she remarry.) The exception noted by Coulson would allow the testator to acknowledge that his daughter-in-law was pregnant and then to make a will in favour of the child she was carrying which would benefit any child born to her within the period of maximum gestation from the date of the acknowledgement. The basic point of this protracted discussion is that no one, no text, no authority of any kind even suggests the rule that David Pearl propounds in the passage from his 'textbook' set out above to the effect that a bequest to a foetus is valid if the child is born 'within the period of maximum gestation from the date of the bequest'--as anyone who was done the slightest amount of reading on the subject would know. Secondly, there is no possible logic which would lead to the conclusion that birth within the maximum period of gestation from the date of the bequest would prove the legal existence of the child on the date of the bequest--a condition which David Pearl himself has set out as a requirement for the validity of a bequest (although failing to note that it is not of universal application, applying only in the case of a specifically-identified legatee). Birth within the minimum period of gestation would prove this fact, since the law holds that no child can be born less than six months from the date of conception. If the maximum period of gestation were to have any roles, it would only be in the case of a widow or divorcee, and the period would be reckoned from the date of the divorce or widowhood, not from the date of the bequest. David Pearl must be challenged to produce authority for his statement. And it must emphatically be noted that the curious passage in Coulson, which is clearly the un cited and inaccurately paraphrased source of David Pearl's statement, is not authority for David Pearl's statement -- firstly because, even as put forward by Coulson, it is clear that Coulson's passage refers to a special exception, not to the general rule; and secondly because in Coulson's exception, the period of maximum gestation runs from the date of the acknowledgement of the foetus, not from the date of the bequest. [1] PLD 1989 Karachi 85. [2] Ibid., P.88; emphasis added. [3] such a child, of course, could only be an heir to P if for some reason the parent through which it claimed were disqualified as an heir. [4] The woman remaining unmarried and not having acknowledged the conclusion of her iddat. [5] N.B. E Baillie, The Mohummudan Law of Inheritance. Calcutta; 1832, p.160. [6] London: Croom Helm, 1987 (Second Edition). [7] The comparable passage in the 1979 edition reads:-‑ (DSP) A child en ventre sa mere, however, has a 'legal existence' and in Hanafi law is entitled to take a bequest. [David Pearl, 'Textbook,' 1979 Edn., p.120] Although this statement does not say much of anything, it at least says nothing wrong, except in so far as it implies that the legal existence of a foetus is recognized only by Hanafi law. [8] See his statement:-‑ (DSP) [T.]he texts used by the [South Asian] Courts, especially the Hadeya [sic; should read 'Hedaya' or Hidaya'] were not authoritative. The Hadeya, [sic] had been translated into English from a Persian translation of the original Arabic which itself had been completed as late as the twelveth century. The other major commentary--the Fatawa Alemgiri-- is equally as unsatisfactory for it simply represents a collection of reponsa composed on the orders of Aurangzeb, who had his own peculiar interpretation of the Islamic law. [David Pearl, 'Textbook,' 1979 edn., p.22; 1987 edn., p.21]. [9] Note also that the distinction between general and specific legatees is discussed by N.J. Coulson in his Succession in the Muslim Family (Cambridge; C.U.P., 1971)-- a book from which David Pearl takes much of his material (without appropriate citation), but which, as he repeatedly proves, he has failed to read with minimal intelligent comprehension: (NJC) A bequest in favour of a legatee individually named or othewise described by the testator fails, on the broad ground of fundamental mistake, if the legatee was not in existence at the time the bequest was made .On the other hand, a bequest in favour of a class or group of persons only generally described is held to refer to the time of the testator's death, so that those who fall within the description at that time qualify as beneficiaries. [N. J. Coulson, Succession in the Muslim Family, p.228.] [10] I am assuming the parties to be Hanafis and using the maximum period of gestation recognized by that school. [11] E.G, (my formulation; Hanafi law): 'The child in the womb, if conceived before the death of P and subsequently born alive, is an heir intestate. In order to a establish that conception took place prior to P's death, birth must take place within six months of P's death if the child's mother is married, or if she is the widow (or divorced wife) of a, relative of P; and within the maximum period of gestation reckoned from the date of her widowhood if the child's mother is P's own widow and the child in question his posthumous child (or within the maximum period of gestation recknoned from the date of her divorce if the child's mother is P's divorced wife)'. [12] David Pearl's 'primary sources'-- although uncited-- are the books by N.J. Coulson (Succession in the Muslim Family and History of Islamic Law) and A.A.A. Fyzee (outlines' of huhammadan Law) as his 'textbook' makes clear, he has not only failed to read beyond these limited 'sources' but has failed even to master them. [13] As also at the time of P's death; if the child were born within time and yet predeceased P, the legacy would lapse. [14] I.e., date of bequest in the case of a specifically-identified foetus; date of P's death in the case of a general bequest which would benefit a child yet unborn. [15] Remember that a bequest to an heir, i.e. P's own child, is void in Hanafi law unless ratified by the other heirs. Thus, a situation involving a valid will in favour of the testator's own unborn child will be rare indeed. [16] From the date of the bequest. [17] Since the reference is to the period during which the birth of the child will establish its legitimate descent from the woman's former husband, the period of two years referred to clearly runs from the date of the woman's widowhood (or divorce)-not from the date of the bequest. [18] Mahommedan Law, Vol. I, p.600; Vol. II, p.70 (1976) end.) ***