A decree o f
the magistrate
fixes an
appropriation:.
"but the d'eci-
fion of a referee
does not
fix it.
“ extinguiffied by a decree o f the magiflrate,” — our author remarks
that this is approved doftrine, as fuch a decree removes all difference
of opinion. With refpeft, however, to what is further reported
from him, that “ the appropriator’ s right of property, is extin-
“ guilhed in confequence of his. fufpending that upon his deceafe,”
it is altogether unfounded, as his right of property cannot be extin-
guiflred but by his bellowing the ufe of the article for charitable pur-
pofes in perpetuity, in which cafe it is the fame-as a bequeff of perpetual
ufufruct :— in this infeance, therefore, his right of property
becomes extinct, and the appropriation is- abfolute. It is related, in
the Fatâvee Kâzee Khan, that judicial degrees are iffued on the fub-
je£t of appropriations only in cafes where a perlbn having appropriated
a-particular artife, and'delivered it over to a Mootwalee or procurator;
is afterwards defirous of refuming it ; and the latter difputes the re-'
fumption, on the plea of the appropriation being abfolute; and they
carry the matter before a Kâzee, who decrees it to be abfolute.— Concerning
a cafe where the parties authorife any third perfon to décidé
upon this point; and he decides the appropriation to be abfolute, there
is a difference of opinion: it is certain, however, that fuch a decifionr
is not binding upon the' parties.
Cafeofanap- I f a perfon make an appropriation upon his death-bed, Tehavee
XTupona reports, that, according to Haneefa, it Hands in the fame predicament
Jiatb bed. -with' a bequefl: after death,— (that is to lay, is abfolute:) contrary
to an appropriation made during healthy which is held by Haneefa not
to be of an abfolute nature. The true ffatement, however, is that
the appropriation in queftion- is not abfolute, according to Haneefa;
but it is abfolute, according to the two difciples', with this diflinftion,
however, that the appropriation here treated of is regarded as from
the third of the appropriator’s eftate, whereas an appropriation made
during health is regarded as from the whole of the appropriator’s
property.
Upon
Upon an appropriation.becoming valid, (that is, abfolute, according
to the various opinions of our dodfors, as here Hated,- according to
Haneefa, in confequence -of the appropriator’s declaration, and the
magiflrate’s fubfequent decree,— and according to Aboo Toofaf by his
Ample declaration,— and according to Mohammed, by his declaration
and delivery to a procurator,)— it paffes out of the poffeffion of the
appropriator; but yet it does not become the property of any other
perfon; becaufe, if this were the cafe, it would follow that it is not
in a Hate of detention, but may be fold in the fame manner as other
property; and alfo, becaufe if the perfon or perfons to whom it is
aflmied were to become the proprietor of it, it would follow that it
could not afterwards pafs out of his poffeffion in confequence o f any
condition ' flipulated by the former proprietor,— whereas it is not fo,
for if a perfon were to appropriate a dwelling-houfe (for inffance) to
the poor of a particular tribe, and the poverty of any ode of thefe were
afterwards' removed, the right in it paffes to the others, which it
could not do if this perfon were a proprietor.
T he appropriation of an undefined part or portion of any thing*
is lawful, according to Aboo Toofaf. Mohammed alleges that an appropriation
of this nature is unlawful; becaufe, as aAualpojfejfon is held
by him to be an effential, (by the procurator -taking poffeffion of the
article appropriated,) fo, in the fame manner that without which
poffeffion cannot take place is alfo an eflential, namely divifion-, and
this can only be in a thing capable of divifion. ■ (With refpeft, however,
to a thing incapable of divifion, the appropriation of an indefinite
portion of it is held to be legal by Mohammed alfo, as he conceives an
analogy between this and a gift, or' charitable donation.) The ground
upon which the opinion of Aboo Toofaf, proceeds is, that the Reparation
o f an indefinite part of any thing is indifpenfable to the taking pofleffion
o f it; but as the taking poffeffion is not (according to him) effential in
* .Such as the h a l f , or the f o u r t h , of a f ie ld , houfe, & c .
X X 2
The appro-
priator’ sright
of property is
deftroyed;
but without a
transfer o f
that right to
any other perfon.
Any undefined
p a r t o f a thing
may be ap«
propriated.
a cafo