In the typical examples given in the book I have been quoting from, I find the following with its solution : “Example 7. Husband, daughter, brother and three sisters.” The solution need not be given fully. The brother as a residuary in his own right gets 2/20ths.
It will then be seen from the above that brothers, and in their absence, half-brothers, rank either as sharers or residuaries in their own right, and, therefore, with the greatest deference to Sir Walter's opinion in the case in question, the brother “takes”, if he does at all, in his own right and not as representing the poor, and if he does not “take” (a thing that cannot happen in such a case if the law is to be respected), the residue “reverts” to the sharers.
But the report says that the priest and I differ. If you eliminate the “I” and put “the law” instead (for I simply said what the law was), I would venture to say, the priest and the law should never differ, and if they do, it is the priest and not the law that goes to the wall. In this case, however, the priest and I do not differ if the distribution in the report sent to me by Mr. Tatham was the one approved by the priest, as it seems to have been, according to his letter of advice. The priest says not a word about the half-brother taking as representing the poor.
Lastly, after I saw the report, I saw purposely some Mahommedan gentlemen who ought to know the law according to Sir Walter, and they were surprised when I told them about the decision. They, without even taking time to consider—the thing appeared to them so plain and clear—said, “The poor never take anything from an intestate estate. The half-brother as such should have his share.”
The decision then, I submit, is contrary to the Mahommedan Law, the priest's opinion, and other Mahommedan gentlemen. It will be a manifest hardship if the portions rightly belonging to the relations of a deceased Mahommedan are to be locked up until they can show that “they represent the poor”—a condition never contemplated by the law or sanctioned by Mahommedan usage.
I am, etc.,
M. K. Gandhi
The Natal Witness, 28-3-1895
- 1↑ This was with reference to the following report in The Natal Witness, 22-3-1895 :
- Mr. Tatham applied to the Supreme Court yesterday for confirmation of the Master's report in the intestate estate of Hassan Dawjee, and remarked that a plan of distribution, prepared by Mr. Gandhi, barrister, had been embodied in the report, and was framed according to Mahommedan Law.
- SIR WALTHER WRAGG : The only thing about this is that Mr. Gandhi knows nothing of Mahommedan Law. He is as great a stranger to Mahommedan Law as a Frenchman. For what he has stated he would have to go to a book as you would; of his own knowledge he knows nothing.
- Mr Tatham said that a plan of distribution had been obtained from the priests and from Mr. Gandhi. Where else they were to go he did not know. They had exhausted all the expert evidence available.
- SIR WALTHER WRAGG : The portion which Mr. Gandhi states should go to the brother of the deceased, should, according to Mahommedan Law, go to the poor. Mr. Gandhi is a Hindu and knows his own faith, of course, but he knows nothing of Mahommedan Law.
- MR. TATHAM : The question is whether we shall take Mr. Gandhi's view or the priests'.
- SIR WALTHER WRAGG : You must take the priests'. When the brother can show that he represents the poor he will be entitled to 5/24ths, as stated by Mr. Gandhi.
