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HARVARD LAW LIBRARY
RecdvedFEB 10 1917
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I
A. DIQEST
0¥ THE
HINDU LAW
09
INHERITANCE, PARTITION, AND ADOmON;
EMBODYING THE REPLIES OFiJHE SASTRIS IN THE COURTS OF THE BOMBAY PRESIDENCY,
WITH
INTRODUCTIONS AND ^OTES
BY
RAYMOND WEST
AND
JOHANN GEORG BUHLER.
VOL. L
lRegi$tered wnder Aci XXV. of 1867.]
PRINTED AT THE
EDUCATION SOCIETY'S PRESS, BYCULLA.
1884 ^Y\
£A11 rights reserved.] Q \ 0
VlF.o
4,
FEB i 0 1917
PREFACE.
An apology is due to the subscribers for the delay in producing the present edition. This delay has arisen, not from any want of assiduity or interest in the work, but from the bulk of the materials to be dealt with, and from official engagements which have left but a scanty and occasional leisure for carrying this book through the press. The matter is more than double that of the preceding edition, and now affords, it is hoped, a pretty full view of the prin- cipal topics connected with the HindA Law of Inheritance, Partition, and Adoption. ^
Book III., on the last named subject, is a new part of the work, in which an attempt has been made to bring together both the doctrines of the Hindii sources and the most impor- tant decisions of the Courts. The latter are numerous, and not in all cases readily reconcilable with the opinions of the S&stris. Discussions were thus made necessary, which have . added something to the length of the book, and will induce the reader perhaps more readily to excuse the omission in this part of the work of the detailed statement given in Books I. and II. of each question put and answer returned by the S&stri, and of the authorities quoted in support of his opinion. I some years ago made out a list of these authorities, and with some trivial exceptions they are dis- cassed in the first part of Book III, The many references to the sources in the second and following Sections of the same Book are in part identical with those made by the Sastris, but extend over a wider field, consistently with a desire to make Adoption better understood by showing what its his- tory has been, and what relative place it holds in the deve- lopment of the HindA law. It is to be regretted that in this part of the work I have not had the aid of Dr. Biihler's distinguished scholarship and his intimate acquaintance with
IV PREFACE.
the Sanskrit law literature. Circumstances — cBiefly tBe great distance between our spheres of work — have prevented this co-operation^ and much no doubt has thus been lost. Such authorities as were within my own compass I have worked at not without diligence, and should the conclusions deduced be erroneous the references will supply the means of correcting them.
For the present edition Dr. Biibler has however revised his survey of the Hindfl law literature, which now appears as Section II. of the Introduction to Book I. The advances made oE late years in this branch of learning nuide such a revision very necessary, and it may be accepted with some confidence as presenting the latest gains of scholarship. With the exception of a few notes, the authorship of which will be easily recognized, this part of the work is entirely due to Dr. Biihler. For the rest of the new work he is not to be held answerable*
In the parts of the Introduction to Book I. bearing on the Limitations of Property, the Testamentary Power, and Maintenance, an endeavour has been made to bring together the new and old authorities, so as to contribute to the for- mation on each of these subjects of a definite and consist- ent theory. The article on Stridhana has been transferred from the Appendix to the Introduction with some abridge- ment, and with several reinforcements from HindA sources of the views set forth in it. The decisions of the Courts have, in son>e instances, been opposed to these views ; and the decisions will probably form the law of the future; but as they do not seem to be reducible to a single and consist- ent system, a statement of the doctrines of the Hind A. lawyers may still be practically useful. There must be some error where there is a conflict of authorities ; the way to truth lies through a comparison of them, and for this the materials are laid before the reader. Much the same may be said on the subject of a widow's maintenance by her husband's family. The decisions on the subject are not
PREFACE. ^
uniform, nor are the Hindft commentators themselves in complete accord as to the widow's right to a separate maintenance. The principle of a change of family, which rests immediately on the S^stras^ coupled with the equally recogni2sed right of the family to subsistence at the hands and as dependants of the chiefs leads directly to conclu- sions which have here been pnt forward as probably correct. The castomary law of the castes is shown to agree, almost without exception, with these conclusions, and thus the subject is left for the further consideration of the Courts.
The problem of the father's capacity to alien and incumber the family estate to the injury of his sons is one that has much exercised the Courts in recent years. The decisions arrived at have, in some respects, been almost as various as the Courts that pronounced them. The powers of a manager or representative member of a Hindft family, and the capa- city of a Hindft widow for transactions affecting different classes of property, have not been defined in precisely uni- form terms or referred to exactly the same principles. The HindA authorities themselves, as received in the different provinces, differ in their conception of the Hindft family, and the proper relations of its members; and hence naturally arrive at different results in the details of the system. Yet within their own sphere or with reference to the accepted foundations on which they have severally worked, the native writers of any particular school or province are, perh^s, on the whole, more consistent than some of the judgments which have borrowed at need from antagonistic sources. An attempt has been made to present the course of thought followed in the several High Courts and in the Judicial Committee, and to compare it with the doctrine of the Mit&kshara. Some passages of the latter, hitherto untranslated, have been given in an Appendix, in order to correct misconceptions and to bring out more clearly what was the author's notion of the capacities and duties of a father and a son. His view of the necessary or typical
VI PRE PAGE.
family relations as to property, thoagh widely different from that of the English law, agrees pretty closely with the ideas on the same subject of Hegel. His discussion of the relation of a head of a family to its dependent members as partaking of the nature of property without being property will remind students of a somewhat similar dissertation in Kant. The translations have been obtained from an independent hand, (that of Dr. A. Fiihrer) as both the more competent and more free from any suspicion of finding in the original what was suited to support a preconceived opinion.
The great accumulation in recent years of published deci- sions on points of Hindfi law has added much to the labour of the student or practitioner who desires to be abreast of the latest developments of the case law. Though the present edition in some measure reflects the over growing reports in a great increase of the table of cases cited, it is not pretended that the list is at all exhaustive. Only those cases have in general been referred to which were thought for one purpose or another really valuable, the others have been left unnoticed. The series of judgments delivered by Sir M. R. Westropp, late Chief Justice of the High Court of Bombay, has fur- nished many instructive illustrations for the present work. In one or two instances leave has been taken to differ from the conclusions arrived at by that eminent judge, but this liberty has not been used without some diflSdence or in forgot- fulnoss of the obligations under which every student of the Hindu law lies to one who has contributed with such patience, learning, and acuteness to its scientific development and adaptation to the needs of a new generation.
A more prominent place is given to Customary Law in the present than in the previous editions of this work. It began as a mere collection of the responses of the HindA law officers with so much of introduction and comment as seemed necessary to connect the answers in a system. The authority accorded to the work has made it desirable that
PREFACE. Yii
within its own range it should present a tolerably full as well as accurate view of the subjects with which it deals. The usage of the people differs materially on some points from the rules laid down in books which are otherwise received as unimpeachable authorities. It may perhaps be a question whether, as a matter of policy, every fragment of custom ought to be diligently sought out and preserved. A wider and more uniform customary law may be more consistent with moral and material progress than an indefinite segmentation into slightly varying usages which causes perpetual doubt and difficulty in necessary transactions. But the usage of the country is the law of the people ; and this usage amongst the HindAs allows, at least within certain limits, the minor usages of classes and families to be their law. There is no collec- tion pretending to completeness of the customs even of the people of Western India, but in Steele's Caste Laws are to be found a great many departures, more or less conspicuous, from the general track, and many rules of the lower castes on matters unregulated by the sacred writings. Borradaile's collection of the caste customs of Gujarat is almost equally valuable. It has long lain by in manuscript, not without some injury from time and accident, but now at last an edition is in preparation at the cost of Sir Mungaldas Nathubhai, under the superintendence of a competent Gujarati scholar, whose work is revised or checked by Mr. Fulton, C. S., Begistrar of the High Court of Bombay, ytn the mean time I have drawn pretty copiously from this collection as well as from Steele's, and I have supplemented the information thus gained by frequent personal inquiries. Native friends, who have been amused at my persistence in turning our conver- sation to the subject of their usages, will find the matter of our talk in many instances here set forth in print. In this way it is hoped a pretty fair view has been obtained and repro- duced of the modifications of the law of the books which are established by practice and acceptance. In the case of Parti- tion, of Adoption, and of the Rights of a Widow, the peculi- arities are so important as to invite particular attention.
viii PREPACB.
The extracts from several Smritis and from the Vtrami- troddya, which were printed in an Appendix in the previous editions, have in this been omitted. The Vlramitrodaya is now accessible in a very good translation, published by Mr. G. Sark&r, of Calcutta. Translations of N&rada and Vishnu, by Professor Jolly, have been published by Messrs. Triibner & Co., whose series of the Sacred Books of the East contains the other works also above referred to. As they are thus placed within reach of the English scholar, it seem- ed needless to retain the translations of particular chapters which had formerly been a useful supplement to this work. It is, though in parts almost excessively condensed, suffi- ciently bulky even after discarding all matter that could well be dispensed with.
Exception may perhaps be taken to the large number of comparisons instituted between theHindA law and the Roman, English, and other laws. In the case of adoption these comparisons have generally had a directly practical purpose. It is very desirable to know how far in this department the analogous Soman institution can help the student of the Hindft law, and how far it cannot. That it affords some valuable suggestions will be admitted by those familiar with the subject. In the other comparisons the purpose has been partly to show that the Hindii system stands much less iso-
ilated than is usually supposed, but more especially to awaken the interest of Native scholars if possible in the subject of comparative law. A complete investigation of the rela- tions of their own to other systems would probably be of great value to the history of human development, and would be fruitful in suggestions of improvement and adaptation without a painful and destructive breaking with the past.
In the correction of the press the assistance has been had of Dr. A. Fiihrer, especially for the references to the Hindfl authorities. The references to the law reports have been verified by Mr. Sivardm Sitarclm Vigl^, pleader of the Higi Court of Bombay, and now acting as Subordinate
PREFACE.
IX
Judge of ScLswad. The latter gentleman has aided also in preparing the Index, by noting down the principal sabjects as the work progressed. Another Indei was inde- pendently prepared by myself ; and with these two hare been blended the appropriate entries in the Index to the previous edition. That was drawn up with the aid of Mr. J. B, T. In&nid4r^ who is now Subordinate Judge of Belgaum. Three or four years ago this gentleman was so kind as to copy and arrange nay notes on Adoption and some others that have been used for this edition, and unwilling not to have a hand in bringing it out, he has now kindly drawn up the Table of Conteots. The lists of cases cited, and of authorities referred to, were in great part prepared by Mr. J. M. Kharsedji, Assistant to the Commissioner of Customs : they have been completed by Mr. Kaikhasru P. Modi, B. A., who has also re-arranged the Index under my personal direction. In a work of so much labour it is a pleasure to acknowledge having found such cheerful and intelligent auxiliaries. Whatever may be the worth of the book, the aids to its perusal will, it is hoped, be found more than usually accurate and complete.
R. W.
CONTENTS.
PAGE
I. Preface i
n. Table OP Contents xi
III. liisT OP Cases Cited xxvi
IV. Statutes, Acts, and Regulations befeared to Ixxvi
V. Authorities quoted or referred to Ixxix
VI. Ajddenda and Corrigenda Ixxxviii
BOOK I.— INHERITANCE.
Introduction.
I. — Operation of the HindA Law 1
H. — Sources of the Hindii Law 9
Relative authority of the sources of the law 10
1. The Mit&kshar& 12
2. The Vyavahftra Maydkha 19
3. The Vtramitrodaya 21
4. The DattakamimfLms^ and Dattaka Chandrikd 23
5. The Nirnayasindha ib.
6. The Samsk&rakaustuhha 24
7. The Dharmasindhu 25
8. The Smritis ib.
9. The Vedas 56
III. — Genbral VIEW OP THE Law OF Inheritance 57
§ 1. Definition of the Law of Inheritance ib,
§ 2. Sah-divisions of the Law of Inheritance 58
§ 3. HeirstoMales 65
A. Succession to an undivided coparcener ib.
(1) The sons and descendants ih.
(2) The adopted sons 71
(3) The illegitimate sons and their descendants 72
(4) The descendants of emigrant heir 73
(5) Coparceners of the deceased ***.
B. Succession to a separate householder, a temporary
student, and an undivided coparcener's separate
property , 77
Ill CONTENTS.
Bk. I. — IirHERirANCE-— coil/. — PAGl
B. (1) The sons and deacendants 78
(2) The adopted sons 81
(3) The Stldras* illegitimate sons t^.
(4) The widows 88
(5) The daughters 104
(6) The daughter's sons 107
(7) The mother 109
(8) The fother.., 110
(9) Brothers of whole blood Ill
(10) Half-brothers 112
(11) Sons of brothers of full blood ib.
(12) Sons of half-brothers ib.
(13) The paternal grandmother 113
(14) The Gotraja Sapindas ., 114
(15) The Gotraja Sam&nodakas 133
(16) The Bandhus tb.
(17) The spiritual relations 137
(18) The Brahmana community 138
(19) The partners in business of a Banya ib.
(20) The King 139
C. Succession to a Samsrishti 140
(1) The sons and descendants ib,
(2) The reunited cop>arceners 141
D. Succession to males who have entered a religious order 144
(1) To a Yati or Sanny&sl t*.
(2) To a Naishthika Brahmach&ri ib,
§ 4. Heiks to Females 146
A. To unmarried females ib.
(1) The brothers ib.
(2) The mother ib.
(3) The father ib.
(4) The nearest Sapiudas t6.
B. To married females leaving issue t6.
(1) The daughters ib,
(2) The granddaughters 151
(3) The daughters' sons 152
(4) The sons ib,
(5) The sons' sons , ib.
C. To married females leaving no issue ib.
(1) The husband ^'5*
(2) The husband's Sapindas 153
(3) The widow's Sapindas , ib.
CONTENTS. Xlll
Bk. T. — Inheritance— con^— page
§ 5. Persons Disqualified TO Inherit 153
§ 6. Special Rules of Inheritance according to custom.
Sacred property ; 155
§ 7. Burdens on Inheritance 160
§ 8. Limitations of property and restraints on disposal
under the HindQ Law 170
§ 9. The Testamentary Power 213
§ 10. Maintenance 230
§11. Strtdhana or woman's property 265
IV. — Digest of Vyavasthas.
Ch. I. Heirs to an undivided coparcener 339
Sec. 1. Sons and grandsons ib,
„ 2. Remote heirs 341
Ch. II. Heirs to a separate male 355
Sec. 1. Sons by birth, legitimate ib.
9, 2. Adopted sons 365
,, 3. Illegitimate son 375
„ 4. Grandson * 389
„ 5. Illegitimate son's son 390
„ 6. Widow ib.
A. Married as a virgin ih.
B. Remarried.... •• • 417
Sec. 7. Daughter 429
,y 8. Daughter's son 444
„ 9. Mother , 447
„ 10. Father 453
„ 11. Full-brother 454
„ 12. Half-brother 458
„ 13. Brother's son 459
9, 14.1. Gotraja Sapindas ...•• 463
A. Sapindas mentioned in the Law Books .• ib.
1. Full-sister ib.
2. Half-sister 469
3. Paternal uncle 473
4. Father's brother's son ••• 474
5. Paternal grandfather's brother's son 479
B. Sapindas not mentioned in the Law Books ... 480 O' Males • t^.
1. Brother's grandson ib,
2. Paternal uncle's grandson 481
XIV CONTENTS.^
Bk. I. — Inheritance— c(Mi<. — page
Digest of Vyavasth&s— con<. — •
Sec. 14. B. b. Females 481
1. Daughter-in-law ih»
2. Brother's widow 482
8. Paternal uncle's widow 484
4. Paternal uncle's son's widow 485
6. Widow of a Sapinda within four degrees. ih.
II. Sam&nodakas - 486
Sec. 15. Bandhus : Introductory Kemarks 487
A. Bandhus mentioned in the Law Books 492
1. Father's sister's son ih,
2. Maternal uncle's son 493
B. Bandhus not mentioned in the Law Books t6«
I. Males ih,
(1) Sister's son ib.
(2) Maternal uncle 495
IL Females 496
(1) Grand-daughter ih.
(2) Brother's daughter 497
(3) Sister's-daughter ' 498
Ch. 'III. Heirs to males who have entered a religious order. 499
Sec. 1. HeirstoaYati %h,
„ 2. Heirs to a Naish^hika Brahmach&rt 500
Ch. IV. Heirs to a female 601
A. Heirs to an unmarried female * ih.
Sec. 1. Brother ih,
„ 2. Father ih.
„ 3. Sister 502
B. Heirs to a married female ••• ih.
Sec. 1. Daughter ih.
„ 2. Grand-daughter 509
„ 3. Daughter's son 510
„ 4. Son 511
„ 5. Hushand 513
„ 6. Husband's Sapindas : Introductory Remarks 517
I. Husband's Sapindas in general 520
IL Husband's Sagotra Sapindas * 521
a. Step-son ih,
b. Husband's mother 522
e. Fellow-widow 523
d. Husband's brother 525
6. Husband's step-brother 528
/. Daughter-in-law ••••••• ••• ih.
CONTENTS,
XV
Bk. I- — ^Inheeitance— con^. — pag^ IV. II. Husband's Sagotra Sapindas — cont. —
g. Husband's brother's son 529
h. Husband's brother's widow 53I
1. Husband's paternal uncle's son ,*^.
j. Husband's paternal uncle's great-grandson... 533
h. Husband's more distant Sagotra Sapindas ... 534
m. Husband's Bhinnagotra Sapindas 537
a. Daughter's grandson ^^
h. Husband's sister {f,^
c. Husband's sister's son 53g
Sec. 7. The widow's Sapindas : Introductory Remarks... 540
I. The Sapindas in general 542
II. Sagotra Sapindas 543
a. Mother , ih*
b. Brother 544
c. Step-brother ih,
d. Brother's son 545
e. Step-brother's son 546
/. Paternal uncle ib.
g. Paternal uncle's son.. ih.
III. Bhinnagotra Sapindas 547
a. Sister's son ib.
b. Maternal uncle's son ih.
c. Sister's daughters 548
Ch. V. Cases of Inheritance decided by the customs of castes
or sects 550
Sec. I. Heirs to a Male Gos&vi 555
a. Disciple ib.
b. Female disciple 561
0. Disciple's disciple 562
d. Fellow-disciple ib.
e. Guru's fellow-disciple 563
n. Heirs to a Gharb&ri Gos&yS 564
m. Heirs to a GosAvini 666
Sec. 2. Heirs to a Jangama 567
,, 3. Heirstoa Jati 568
„ 4. Heirs to a Nanak-ShAhi 570
„ 6. Heirs to a M&nbh&a ib.
„ 6. Heirs to a Vair&gi 571
(1) Disciple ib.
(2) Guru. 674
(3) Fellow-student ib.
(4) Fellow-student's disciple ••••• 576
XVI CONTENTS.
Bk. I. — Inheritance— co>t/. — page
Ch. VI. Persons disabled to inherit 575
Sec. 1. Persons diseased in body or mind ib,
„ 2. Illegitimate children 582
„ 3. Persons labouring under moral deficiencies 583
a. The enemy of his father ib.
b. Persons addicted to vice 586
c. Adulteresses and incontinent widows 588
BOOK II.— PARTITION.
Intboduction.
§ 1. Definition 597
§ 2. Sub-divisions , 600
I. The Family living in union.
§3. The family living in union 601
The Manager's authority in undivided family 609
A. The undivided family 651
1. Consisting of an ancestor and his de-
scendants ib.
2. Of descendants of a common ancestor ... 654
B. The reunited family 665
II. Separation.
§4. A. Separation defined 656
B. How effected ib.
1. By the will of all the coparceners 657
2. At the desire of one or more members
only ib,
3. By the judgment-creditor of a member,
or purchaser at an execution sale of his
interest 663
0. Right to partition limited to demandant and
his share 665
1. General Remarks ib
2. Great-grandson 672
3. Minors ib,
4. Absentees 676
5. Wives, mothers, Ac 677
6. Disqualifications for demanding a sepa-
ration • 6/9
CONTENTS. Xvii
Bx, n. — Pabtition— conf.— p^gs
II. 4. D. Will to effecfc a separation .r. 680
1. State^l explicitly i^^
2. Implied , 537
The Signs of separation ^^
(a) The possession of separate shares , ib,
{h) Living and dining sepai^ately ^
(c) Commission of acts incompatible with
a state of union .., , , ^33
(d) SepM^te performance of daily cere-
monies ^89
E. Separation, total or partial .^ 593
F. final 702
III. Distribution op the Common Pkoperty.
§ 5. A. Ancestral property, distributable 703
1. Ancestral ,.,-„ 7q^
(a) Inherited , ^-j
(J) Recovered « 723
1. By father , „ ^^
2. By another coparcener ^j
2. Self-acquired ^ 72i
(a) By father ^^^
(&) By another coparcener 701
B. Property naturally indivisible , 70^
O. legally impartible , ^ ^oc
IV. LlA3ILITIBS ON InHERITANCB*
§ 6- Sub-division «,.... ,,^^^ 7^^
A. Debts .• 7^7
B. Provisions for relations, &c yej
(1) Disqualified persons, their wives, daugh-
ters, and disqualified sons 752
(2) Female relations not entitled to a speci-
fic share ^ ^^^ 7^0
V. Rights and Duties arising on Partition.
§ 7. Sub-division , 7^
A. The determination of shares to which sharers
are entitled , ^
1. Partition of divisible property 770
(a) Partition between ancestor and bis firsi
three descendants .,,,.. j^.
(1) Of ancestral property ib,
c
XVIU CONTENTS.
Bk. II.— Partition— com^ — page V. § 7. Sub-diviaion — cont,
A. 1. (2) Of self-acquired property .'.....'. 770
(b) Partition between brothers or collaterals 778
Rights and duties arising on such parti- tion 780
(c) Partition between reunited coparceners. 783 2. Partition of naturally indivisible property 784
B. The distribution of the common liabilities 786
1. Debts ib,
2. Other liabilities 791
Digest of Vyavasthas. Ch. I. Partition between the head of a family and his first
three descendants 795
Sec. 1. Of ancestral property ib.
„ 2. Of self-acquired property 803
„ 3. A mother's share 814
Oh. II. Partition between other coparceners 815
Sec. 1. Between brothers ib.
,, 2. Between mother and son 824
„ 3. Between remoter relations 827
Ch. III. Manner and legality of partition 829
Sec. 1. Partition of indivisible property ib.
„ 2. Partition of property discovered after partition . 832
„ 3. Legality of partition 836
„ 4. Partial division 843
Ch. IV. Evidence of partition 848
BOOK III.— ADOPTION.
§ I. Sources of the law , 859
II. Nature of adoption and its place in the Hindti
system 872
III. The capacity to adopt and the circumstances under
which it may be exercised 940
A. 1. 1. — Adoption BY Males , ib.
1. 2. — In relation to paternity 943
1 . 3. — Fictitious cesser of paternal and filial relation. 946
1. 4. — Existence of a widow of a son or grandson. ib.
1. 5. — Capacity in relation to age 947
1. 6. to intelligence 948
1. 7- to bodily state 949
1. 8. to religious state 950
1. 9. to caste connection or exclusion. i^.
CONTENTS. XIX
Bk. in. — Adoption— cow/. — pagb
III. A. 1. 10. — In the case of particular castes 951
1. 11. — Vai^yas ib.
1. 12.— iSftdras lb.
1. 13.— Jwns 952
1. 14.— Bh&teles ib.
1. 15.— Sanny&sts and Gos&vts ib.
2. Adoption by a male — by delegation ib.
2. 1. ■ by means of wife ib.
2. 2. -^— by means of widow 953
2. 3. ' by means of daughter-in-law ... i6.
3. Restrictions on adoption to persons deceased ib,
4. Qualifications of the power to adopt arising from
family and political relations 954
4. 1. — Consent of wife ib.
4. 2. — Family relations — ^kindred ib,
4. 3.— Pupillage 965
4. 4. — Consent or acquiescence of the sovereign ... ib.
B. — Adoption BY Femajles ,. 95$
1. No adoption by maiden i^,
2. Adoption by a wife 957
2. 1. under express delegation ib,
2. 2. under implied delegation ib.
2. 3.— Conditions of effective delegation 958
3. Adoption by a widow t^.
3. 1 . — ^Adoption by a widow under express authority
given by act inter vivos 96 1
3. 2. ■ under authority given by will ... 964
3. 3. positive command to adopt ib.
3. 4. choice prescribed 965
3. 5. authority giving qualified dis- cretion 966
3. 6. " authority giving complete dis- cretion as to person ib.
3. 7. , authority to adopt with com-
plete discretion as to exercise
of the power... 967
3. 8. " conditional authority ib.
3. 9. implied authority 968
3. 11. — authority excluded by prohibi- tion or dissent of the husband —
express prohibition ib.
3. 12. — : implied prohibition or dissent ... 969
XX CONTENTS.
Bk. III.— Adoption— conf.— fagb in. B. 3. 13.— Adoption by a widow under an assumed as- sent of the husband 970
3. 14. a conscientious obligation 974
3.15. time for adoption 975
3. 16^. preference of husband's nephew
or other Sapinda...; 97^
3. 17, . authority in the case of two or
more widows 977
3. 18. ■ circumstances in which the
capacity may be exercised 978
3.19. . son deceased sonless 979
3. 21. successive adoptions by a widow. 980
3. 22. ■ simultaneous adoptions 981
3. 23. ■ — circumstances which bar adop- tion ib,
3. 24. — circumstances barring adop- tion as in the case of a male... 991
3. 25. ■ not to defeat a vested estate ... 992
3. 26. widow's capacity as affected by
her age 996
3. 27. as affected by intel- ligence .^...* 997
3. 28. as affected by her
state as to body, mind» re- ligion and caste 998
3. 29. capacity annulled by her re- marriage 999
3. 31. consent required ib.
3.32. consent of co-widow ib>
3.33. consent of mother-in-law lOOO
3. 34. — — — consent of husband's kinsmen
or Sapindas .' id.
3. 35. — — ^— consent of the caste 1005
3. 36. consent of persons whose inter- ests are affected by the adoption 1006
3.37. consent of Government 1009
8. 38. omission or postponement of
adoption 1011
3. 39. , — ^ pretended adoption 1012
4. Adoption by females — anomalous adoptions 1012
4.1. ... — Adoption by mother ••••••. 1013
CONTENTS. Xxi
Bk. m. — ADOFnoN— con/.— page TTT. B. 4. 2.— Anomalous adoption by females^-by a
daughter-in-law 1014
C. 1. Qwa«» adoptions — ^by males 1015
2. Quasi adoption by females — Kfitrima adoptions. id.
2. 1. • subject to the AlyaSantana law... 1016
2. 2. ■ by Kalw&ntins, N&ikins, &c id,
TV. — Fitness pok Adoption 1017
1 Fitness for adoption as affected by caste id.
2. 1. — Connexion in family generally 1018
2. 2, — Relation between the boy to be adopted and the adoptive father through the natural
father 1023
2. 3. — — — the son to be adopted and the adoptive father through the
son's natural mother 1026
2. 4. the son to be adopted and the
adoptive mother 1032
2. 6. — Family connexion with the adoptive parents
amongst ^Adras 1034
3. Relation of the son to be adopted to his family
of birth 1039
3. 1. as an only son 1040
3. 2. eldest son 1046
3.3. — youngest son.... 1049
3. 4. amongst Sudras 1050
4. Fitness for adoption as affected by personal
qualities — Sex 1052
4.1. Age 1053
4. 2. — Juniority of adopted son to adoptive father... 1055
4. 3.— Birth during adoptive father's life ih.
4. 4. — Identity or difference of family or gotra ib.
4. 5.— Bodily qualities 1068
4. 6. — Mental qualities ...•^,„, ih.
4 . 7 . — ^Religious and ceremonial qualities »&.
4. 8. • • Investiture with the sacred thread 1061
4. 9. • Marriage 1063
4. 11. ■ • Place in caste of the adopted son 1066
5. Fitness for adoption — In case of anomalous
adoptions *&•
^- •"— ^ in case of qxicm adoptions 1067
XXU CONTENTS.
Bk. III.— Adoption— con^.— pack
V. The Capacity to give in Adoption and the Circum-
stances UNDER WHICH IT MAY RE EXERCISED 1069
The capacity limited to the parents ib,
A. Gift by the father 1074
1. — Father's personal competence ib.
2.— Circumstances in which the gift may be made... ib'
3— Qualifications of the power 1075
B. Gift by the mother 1076
1. 1. — As a wife — By express permission of the
husband ib.
1. 2. — With implied assent of the husband 1077
2. Gift by the mother — As a widow ib.
C. Gift by persons incompetent c...... 108O
]. — By adoptive parents ib.
2. — Persons commissioned by the parents ib.
3.— By grandfather, brother, &c 1081
4.— Self.gift ib.
VI. A. The act op Adoption — Its character and essen-
tials 1082
1. as to the gift 1085
2. ■ as to the acceptance 1088
3. assent of the son 1090
4. ■ contract of adoption ib.
5. ■ proof of the transaction 1091
6. 1.— Means of proof. ^ 1092
5. 2. — Presumption in favour of adoption 1094
5. 3.— Estoppel 1097
5. 4.— Ratification 1099
5. 5. — Limitation 1100
6. Terms annexed to adoption 1101
7. Assent as a valuable consideration 1116
B. The act of adoption — The persons whose participation
is required 1118
1. In regular adoptions ib.
1.1. The parents giving ib.
1. 2. The parents taking 1120
1.3. Presence of the child given ib,
1.4. Presence of relatives 1121
2. In cases of anomalous adoptions ib.
CONTENTS.
XXlU
Bk. III. — Adoption— con^ — p^^^
VI. C External conditions to be satisfied ^^^21
1. As to publicity ^r
2. As to time 2122
3. As to place 1223
D. I. Ceremonies and Forms — Constitutive ^l
1. 1. — Amongst Br&hmanas •/
(a) In adopting strangers, and generally ... ^'^
(b) Sagotras 1131
(c) after tonsure 2133
(d) In case of a Dvy&mushy&yana iis4
1. 2.~ Amongst the lower castes {^^
1. 3. — Subsidiary forms II37
1. 4. — ^Informalities 1140
D. 2. Ceremonies and forms — Collateral ]142
2. 1. — Inducing good fortune ib,
2. 2. — Indicating joy and generosity t6.
2. 3. — Authenticative i^.
E. Yariations — In the case of quasi adoptions 1143
1. Disapproved adoptions ib,
2. Connexions resembling adoption 1144
Sec. Vil. Consequences of Adoption 1145
I. Governed by the ordinary law ib,
I. 1. — Perfect adoption ib.
A. General consequences ib.
1. — Change of status ib.
2. — Change of sacra 1147
3— Adoption transfers the offspring 1148
4. in the adoptive father's life is pros- pective 1149
5. after the adoptive father's death is
retrospective •• i**.
6. — ■ is irrevocable and irrenounceable Whi
7.— No return to the family of birth ^^^
8. — The connexion by blood with the family oi birth
is not extinguished ^,
9. — ^Terms and conditions •
I. l.~B. Specific effects •• ^^^^
1. As to the relations between the adopted and bis family of birth—
XXIV CONTENTS.
Bk. III. — Adoption — cont, — pagk VII. I. 1.— B. 1. 1. — Between the natural parents and the son —
Immediate personal relations 1159
(a) Parents the active subjects ib,
(6) Son the active subject 1160
1.2. — Relations as to property 1161
1. 3. as to obligations 1162
1. 4. — Relations between the adopted and the other
members of his family by birth — Imme- diate personal relations 1163
1.5. — Relations as to property 1164
B. 2. Consequences as creating relations in the family of
adoption ib*
2. 1. — Between the parents and ascendants, and the
son and descendants — Immediate personal
relations ib,
(a) Parents the active subjects ib.
(b) Son the active subject 1165
2. 2. — Relations between the parents and the son
with respect to property 1167
(a) Between the adoptive father and son. ib,
{b) Between the adoptive mother and son. 1174
(c) Between adoptive step-mother and son. 1 181 {d) Between adopted son and grandpa- rents 1183
2. 3. — Relations with respect to obligations ib.
(a) Between the father (and grandfather)
and the son as to debts and claims. ib
{b) Between the adoptive mother and son. 1184
2. 4. — Between son by adoption and children by
birth 1186
(a) Immediate personal relations ib.
{b) Relations with respect to property 1187
2. 5. — Between the adopted son and remoter connexions by blood— Of the adoptive
father 1189
2. 6.— Of the adoptive mother 1197
I. 2. — Imperfect adoption under the ordinary law 1200
A. Relations to the family of birth .' 1201
B. Relations to family of adoption 1202
Ju, Relations as a grantee 1208
CONTENTS. XX7
Bk. III. Adoption— con^ — pagb yil. II. Consequences of adoption or qtiasi'sAoption nob
governed by the ordinary law 1208
A. Validity recognized ib.
1. — Without limitation (save by an exceptional law) ib,
2. with local limits 1209
3 amongst certain classes 1210
B. Validity not recognized 1211
1. — Obsolete • i^.
2. — Adoption partly assimilated to that under the
ordinary law ib.
3. — Merely analogous , 1212
Sec. VIII. Suits and Pbocrbdings coknected with Adoption 1215 1. — Suits and proceedings arising out of non- adoption ib
2. — Suits as to rights and duties of widow prior
to adoption 1217
3. — Suits to establish adoption 1218
4. — Suits to set aside adoption 1223
5. — Suits in which adoption is an incidental question 1228
6. — Suits and proceedings consequent on adoption 1229
7 . — Judgments and evidence in previous cases 1234
S.—Limitation 1236
Appendix 1239
Indbx 1243
LIST OF CASES CITED.
PA6X
Abddi Begam v. Asi Rim 191
AbAji Dinkar v. Gung4dhar Vdsudev 915, 970, 104S
Abdul Grannee Edsam v. Husen Miya Rahimtulld ... 196, 668
Abhachdri v. Rdmchandrayya ... 926
Abh&i Charan v. D^smani D&si 1216
Abhaychandra Roy v. Pyari Mohan Juho e/ a/ ... ... 637, 765
Abhirfim Dda v. Shrirdm D4s et al 591
Abraham v. Abrah&m 3, 4, 597, 601, 743
Aoh^rji Lallu Bancbor t. Bhagat Jetba Lalji 555
Adhiranee N&r4in Coomary et al v. Shona Mallee Pat Mah&ddl
etaC 80,259,756,791
Adjoodhia Gir V. Kasbee Gir 181,667
Administrator General of Bengal (the) v. Rdnee Sumomoyee
Dossee S
Adreahdppd bin Gadgi6pp& v. Gurushidfippl; 343, 742
Advocate General (the) v. Viahvandth Atmdrdm 215
Advydpd bin Dandapd v. Dand4p4 bin Andanedpd ... ... 359
Advy4pp4 V. Rudr4v4 591
Aghory Rdm Sarag Singh t. J. Cochrane et al ^ ... 813
Agursangji v. Gagji Khoddbhdi 650
AhoUya Bh&i Debia v. Luckhee Monee Debia 260
Ajey R6m V. Girdharee e/ aZ 282
Akojeev. VadeUl 608
AkojiGopdl V. Hirdchand 610, 611, 615
Alangamonjori (or Alangmanjari) Dabee v. Sonamoni Dabee. 224, 669
Alank Manjari v. Fakir Chand 954,956, 1118, 1126
Alexander y. Maliins 608
Alimel Ammdl v. Aranachellam I^Uai 674
Alum Manjee V. Ashad Ali 603
AlvarAmmaul v. Ramasawmy Ndiken 1119, 1224
Ambawow V. Rut ton Krishna c^ aZ 445,761
Ambika Dat v. Sukhmani Kuar et al 682, 691
Amrita Kumari Debi v. Lakhinadlyan 121, 122, 492, 494
Amritndth Chowdry v. Gowreendth Chowdry 729
Amritol41 Bhose v. Rajonee Kant Mitter 96, 105, 106, 431, 443, 591
Amrit Rav Vinayak t. Abdji Haibat 461, 703, 786
Amrutrow Trimbuckrow v. TrimbuckrowAmrutayshwur. 164, 789 Anand Kunwar V. The Court of Wards 11^9
LIST OP OASES CITED. XXVll
PAGE
Anandrio P&d&ji y. Shidooji AnandHio 697
Anandr&y v. Ganesh Yeshwantrdv 1095
Anant Bal4ji ▼. Ganesh Jao^rdhan 66^
Anant Jagaiiiiath& y. Atm&rdm 612, 617
Ananta v. R4mibdi 154, 579
Anantha Tirtha Chariar y. Nagamuthu Ambalagaren. 178, 182, 818
Anath Natli Day y. A. B. Mackintosh 205
Annamala Auohy y. Mnngalnm ... .« 1045
Annammali y. Mabha Bali Beddy 992, 1008
Annaya v. Hoskeri Bamappa 636, 750
Anpoornabai y. Janrow 342
Anpoom&b&i y. M&h&deyrAo Balwnnt 653
Anund Lai Singh Deo y. Mah&r&j&h Dheraj Gooroo Ndr^yan
Deo 159
Anund Mohan y. Gobind Chnnder 1074
Anund Moyee Chowdhrain y. Boykanihndth Roy. ... 201, 784, 817 Anund Moyeo Chowdhrain y. Sheebchunder Roy. ... 905, 948, 976
Anunt Bapoo y. Arjun Gondu 696
Apdji Ghintdcnan y. Gaagab&i • ••« ..• 235, 761
Ap&ji Goyind y. Naro Vital Ghdt^ 632
Appd y. Juggoo 677
Appaniengar y. Alemalu Amm&l ... 1001, 1003, 1145, 1161, 1171
App4 R£y V. The Court of Wards 769
Appoyier v. R&md Subbayana ( Appoyier's or Rama Subbayana's case) 640, 675, 681, 682, 683, 684, 685, 691, 694, 698, 699, 763,
768, 841
Ardseer Corset jee v. Perozeb&i 90, 1215
Arjun M^nic y. R4m Gangd Deo 157
Arjuna y. Bhayan et al ... 604
Armory y. Delamirie 1100
Arnold y. Dixon 684
Arun&challam Pillai v. Ayyasvdmi Pillai ... 911, 1044, 1079
Arundadi Ummal v. Kupnmall 961
Asher y. Whitlock ; * 704
Ashton V. Lord Langdale 774
Ashutosh Dutt y. Doorgd Churn Chatterjee 182, 668
Atmanund y. Atmfir&m 666
AtmdHim Baji y. Madhavrdo Blpiyi , 698, 699
Attree y. Hawe 774
Attwood y. Ernest 608
Aushutosday y. Mohesohunder Dutt ei al 610
Ayyftyu Muppanar y, Nilada^chi et al ... 365, 1165, 1187, 1205, 1237
XXVIU LIST OF OASES OITED.
PAGE
B&bdjee v. Apdjee 368
B&bdji V. KrishDaji 749
B&bdji V. Rdmfiji 706
B&b&ji Lakshman et al v. Vasudev Vinayek 707
Bdb^ji bin Kusaji v. Maruti 672, 676
B&biyi bin Mahdd^ji v. Krishn&ji Devji 169, 171, 609, 634, 635, 63/
B^b&ji and N&naji V. Ndrdyan 176,697
B&bliji bin N&rayan v. Balaji Gannesb 106, 431
Bdb&ji Parshram v. B4mcliandi*a Ananta 684, 842
BdbdjiSakoji v. Rdmsefc Pandushot 612,637,640, 748
Bdb^ji Shrinivas v. Sheshgir Bhimaji 675
B6b&shet V. Jirshet 693
Babla v. Viehnoo Ballal Thakur ... ... 696
* Baboo Banee Pershad v. M. Syad Abdool Hye ... 1139, 1210
Baboo Beer Perbab Sahee v. Maharajah Rajender Pertab Sahee
77, 139, 158, 181, 208, 211, m, 740, 812, 1110 Baboo Bodhnarain Singh v. Baboo Omrao Singh ... 576, 577
Baboo Camumah v. B. Chinna Venkatasa 945
Baboo Deen Dyal Lall v. Baboo Jngdeep Narain Singh {see
Deen Dyal's case) ... 168
Baboo Doolichand v. Babu Brij Bhookan 190, 253
Baboo Goluck Chunder Bose v. Earn Ohilla Dayee ... 80, 163, 792
Baboo Gnnesh Dutt v. N. Moreshvar Singh 740
Baboo Ganput Sing v. Gnnga Pershad 300
Baboo Jos want Singh v. Dooleechand 894
Baboo K!ameswar Pershad v. Run Bahadur Singh ... ... 641
Baboo Krishna Rav. v. Lakshman Shanbhogue ... 607, 632
Baboo Lekrij v. Baboo Maht^b Chand 672
Baboo Nund Coomar Lall v. MouWie Razee-ooddeen Hoosein 710, 712
Baboo Runjeet Singh v. Obhye Narain Singh 1022
Baboo Sheo Manog Singh v. Baboo Rdm Prakdsh Singh ... 1226
Bachebai v. Makhan Lai 157
Badri Roy v. Bhagwat Narain Dobey ... 604, 619, 677, 771, 780
Bagmal et dL v. Sadashiv et al 789
Bagooa Jha v. Lai Doss 323
Bahirji Tannaji V. Oodatsing 184,463,721,806
Bdi Anib& v. Ddmodar Ldlbhdi 101
Bdi Amrit V. Bai Manik ... 155,611,870
B4i Amrit's case, see Lallubai v. Bdi Amrit.
* Cases beginning with this word are sometimes cited without it in the Reports, and therefore appear under the next word in this Table of Cases.
LIST OF OASES OITKD. Xxix
PAGE
B4i Benkor v. Jeshankar Mobiram 150, 577
B4i Giing4 v. Dhurraddss 639
B&i Oangi v. DhurumdaB Nurseed&a 803
BluGung& V. B&i Sheokoowar or Sheoshunkur 128, 942, 1031, 1140
B&i Jetha v. Haribhai 843, 528
B4i Kesar v. Bdi Gungd 368, 611
Bdi Lakshmi v. Lakhmidds 235, 252, 264
B4iMunchd v. Nurroiumdfis Kassidds c< aZ 329, 726, 727
B&i Premkiivar v. Bhika Kalli&nji 154
Bai (or Baee) Batton v. Mansoordin 845
B4i Suraj v. Dalpatr4m Day&shankar 179, 695
B4i Sursj v. Desai HarlochaDddss 663, 683
Bki Suraj v. The Government of Bombay ei al 343
B4i Tulsa v. Bhiji Adam Abraham 706
BdiUmedha v. The Collector of Surat 448
Baijun Doobey v. Brij Bhookun Lall 80, 95, 163, 168, 259, 636,
717, 755
Baijnath Sahai V. Despntty Singh 1233
Baiza et al v. Sadu 383
Bajee Bapoojee v. Venoobdi 340, 453, 464
Baji Balvant v. Raghunath Vithal 1222
Baji Shdmrij Joshi v. Dev bin Baldji Dadhar 610, 635, 636
BajiSudshet v. Pandoorung 671
Bajyrdm Vifehal v. AtmaHim Vithal 700
Bdkabdi v. Manchdbdi 105, 155, 443
BaUji Anant B^'d Diksha v. Ganesh Jan4rdhan Kdmdti 631, 634,
707, 708
Bdldji Bhikdji Pingd v. Gopal bin R6ghu Kuli 607
Bdldji Sitdrdm Ndrk v. Bhikdji Soyare Prabhu 81
B&ldeo Das v. Shim Lai 211, 805
Balkrishna Trimbak Tendalkar v. Sdvitribdi 4, 166, 177, 340, 369,
685, 792, 1154, 1172, 1173
Bilkrishna Yithal v. Harishankar 684, 701
Ballabbdds v. Sundardds 599
Ballal Krishna v. Govinda et al 663
Balmokand et al y. Jhoona Lall 749
Balmakund v. Janki 541
B4lu bin Bapurdo v. Ndrdyen Bhivrdo 694
Balvantr&T BhdsUr 7. Bay&bdi 894, 896, 930, 1039, 1073
Balvant Bav T. B4pnji v. Purshotam 312, 772, 777
BamondoBS Mookerjea etal v. Masst. Tarinee 95, 367, 391, 904, 906, 990, 1067, 1109, 1150, 1174, 1176, 1191, 1193, 1217
XXX LIST OF OASES CITED.
PA6S
Bandam Sottah e^ aZ V. Bandam Mah&lakslimi 528
Banee Pershad V. M. Syed Abdool Hye 1139,1210
Bdpoojee Lakshman v. Fandurang 580, 992
B4pabh4i V. B4i Suraj 343
B4paji Balil ▼. Sabyabh^mab&i 190
B4pa Furshotam v. Shi vial Hdmchandra 708
Barlow v. Orde 4, 228
Baroda Debei v. B4j&h Prdukishen Singh 4
Basanagaoda v. Sunna Fakeeragaoda 413
Bas&ppa V. Mdlan Gavda 1093
Bashettidpp^ v. Shivaling&pp&374, 894, 910, 930, 1039, 1073,
1080, 1081
Baswantrao v. Mantappa ... .«. ... 743
Bateman v. Davis 1100
Bdwd Misser et al v. B4j&h Bishen Frokash Narain Singh ... 772
Baw&ni Sankara Pandit v. Ambabdy Amm&l 1100, 1205
B&ydb&i v. Bdl4 Venk&tesh Eam^kdnt 904. 909, 941, 957, 969, 969,
975, 989, 1042, 1089
Bayaji v. The Conservator of Forests 721
Beauchamp v. Winn 1227, 1229
Bechar BhagvAn v. Bai Lakshmi 312, 777
Becbardds v. Gokb& 741
Beer Ohunder Jobrdj v. Neel Kishen Thakur 157
Beer Pertab Sahee v. Maharajah Bajendar Pertab Sahee 77, 139,
168, 181, 208, 211, 667, 740, 812, 1110 Beharee Lall MuUick v. Indur Mohinee Ohowdhrain. 921, 1095, 1137
Bemola Dossee V. Mohun Dossee 340
Benham v. Keane 631
Benund Ndik v. Doorgi Churn Ndik 687
Bepin Behari Bundopadhya v. Brojo Nath Mookhopadhya 1110, 1157
Bhdgirthib&i v. B&yd 130, 464
Bhdgirthibdi v. SadAshivriLv Venkatesh 609, 674, 690
Bhaga v. Bhasker 593
Bhagubai v. Kaolo Venkaji 1022
BhagvdndAs Tejradl v. Kijmdl 166, 157, 901, 902, 954, 957, 960,
970, 971, 975, 984, 1014, 1120 Bhagvdn Dullabh v. Kdld Shankar 181, 222, 547, 667, 668, 813, 925, 1093
Bhagv&nsang Bharaji v. Bechardds Harjivandds 226
Bhagwan Grooldbchund v. Krip&rdm Annnddim ... 343, 351
Bhagwanee Koonwar v. Parbutty Koonwar 310
Bhdiji Girdhur et al v. Bdi Khushdl 96, 98, 101, 463
Bhairabnath Sye T. Maheschandra Bhaduri 1137
LIST OF OASES CITED. XXXl
FAGS
Bbai Shanker v. The Collector of Kaira... ... 745
Bh4l4 Nihana v. Parbhu Hari 96, 98, 100, 102, 396, 613, 901,
942, 952, 1090, 1094, 1117, 1169, 1210, 1211, 1230
Bhana Grovind Guravi v. Vithoji Ladoji Gruravi 697
Bhaoo Appaji Powar v. Khundoji wulud Appaji Powar ... 609
Bharmanagavdd v. Bharmappagavd^ ... 309
Bharmanagavdd v. Radrapgavdd ... 103, 486
Bharangowda v. Sivangowda et al ... 692, 697
Bharatsangjee v. Navanidharaya 772
Bh^kar4pp6 v. The Collector of North K4nar6 171, 172, 197,
677, 697, 732, 734
Bhdskar v. Bh&ga 593
Bhdskar Buch4jee v. Ndrroo Ragon^th. 956, 961, 1011, 1123,
1171. 1224
Bhiskar Trimbak v. Mahfidev Rimji S9, 465
Bh4a N4ii4ji Utpatv. Sandr4b4i. (the " Utpat case".) 2,66, 85,
105, 166, 177, 660, 662, 663,739, 740, 742, 861, 863, 886
Bhda Yenkobd v. Govind Yeswant 1^1
Bhavanamma v. Bdmasdmi 262
Bbaw4ni v. Mahtab Kuar 691
Bhawdni ^ankara Pandit V. Ambab6y Amm&l 1202
Bhecknarain Singh v. Januk Singh 649, 746
Bhika v. Bhin4 (or Bhav4) 77, 139, 667
Bhikdji Ap^ji v. Jagann4th Vithal ^7
Bhikaji Mahddev v. Bdbushd ^'^
Bhikaji Ramchandra v. Lakshmib4i ^^^
Bhikham Das v. Pura ...• ^^^
Bhimul Doss v. Choonee Lall 344, 829
Bhimana Gf.udu v. Tay4pp4 ^^^^
Bhimdsha bin Dongresha v. Ramchandrasha alias Krishnabdi 636,
638, 750
Bhol4n4th Mahta v. Ajoodha Pers^d Sookul ^^
Bholanath Sircar v. Baharam Khdn 788
Bhoobun Mohini Debya v. Harrish Chunder Chowdhry 180, 183,
184,721 Bhoobnn Moyee Debya v. Ram Kishore Acharjee {see under Musst.)
Bhoop Singh v. Phool Kooer 95
Bhowinnycham v. Heirs of Ramkaont 671, 681
Bbaggiji V. Bbaggdwoo 6^ a{ 842
Bhugw4ndeen Doobey y. Myna B4ee 89, 101, 103, 149, 168, 254,
311,412,451,629,777, 781
XXxii LIST OP CASES CITED.
PAGE
Bhujangrfio v. M&lojirio 79, 211, 771, 808
Bhu Taruk Bajendra v. Sook Sagur et al 666
Bhyah Raai Singh v. Bhyah Ugur Singh 118, 122, 124, 237, 869, 871 Bhyrub Chunder Ghoae v. Nubo Chunder Gooho 254, 269, 302, 762
Bhyrub Chunder Mudduck v. Nuddiarchund Paul 790
Bhyrubnath Tye v. Mohesh Chunder Bhddooree 921
Bika Singh v. Lachman Singh 618
Bilaso V. Dindnath 664, 677
Bindoo Bassinee v. Bolie Chand 96
Biru valad Sadu v. Khandu valad Mari 463
Bishambhur Naik v. Sudasheeb Mohapatter 165
Bishenpirea Munee V. Ranee Soogunda 471
Bissambar Shaha v. Shib Chunder tibdh& 779
Bissessur Chuckerbutty v. Rkza Joy Mojoomd&r 1223
BisseasurChuckerbutty et al v. Seetul Chunder Chuckerbutty 720, 797 Bissessur Lall Sahoo v. Mahar&jdh Luchmessur Singh 616, 616,
707 .709
Bissumbhur ShUbd V. Sy Phool M6ld ,. 1232
Bithoor case (The) see Nana Naraiu Rao v. Haree Punth Bhao. 813
Board v. Board 687
BodhnaraJn Sing v. Baboo Oomrao Singh 676, 677
Bodhrav Hanmant v. Narsinga Rdv 741
Bomliog&ppa's case {see Bomlingappd v. Maldppd.)
Bomlingdppd v. Malappd 1047
Boolee Singh V. Musst. Busunt Koveree 1015
Boologdm V. Swenam 601
Boyle Chund Dutt v. Khetterpaul Bysack 781
Brajakishor Mitter V. Rddhd Gobind Dutt 491
Brammoye Dossee v. Kristo Mohun Mookerjee 96
Brijbhookunjee Maharaj v. S. G. Maharaji 865, 929, 951, 966, 1006,
1010, 1011, 1019, 1021 Brij Indar Bahadur Singh v. Rani Janki Koer (Brij Indar's
case) 101, 299, 301, 334^ 613
Brinsmead v. Harrison 629
Bristoo Persh&d V. Radha Soondern^th 514
Brohrao Moyee v. Chettur Monee 1231
Brojendro Coomar Roy v. The Chairman of the Dacca Muni- cipality 1185
Brojo Kishoree Dassee v. Shreenath Boee 459, 961, 996, 1096, 1224
Brojo Kishore Gujendar v. Haree Kiahen Doss 749
Brojo Kishore Mitter v. Radha Gobind Dutt 481
Brojo Mohun Thakoor t. Gouree Pershad ct al 459
LIST OF CASES CITED. XX^Ul
PAGE
Brown v. Curd of Montreal » • •.. 599
Brown v. Randle • , 705
Bulakee Lall et al v. Masst. Indurputtee Kowar Sd6
Balakidas v. Ghama 609, 63i; 635
Balakidass Govindass v. Keshavldl ChhotaUl 89, 106
Balbhudda Bhourbhiir v. R. Juggernath Sree Cbundun ... 158
Buljor Rai v. Musst. Brinja ... ^, „, 234
Bullubkant Chowdree v. Kishenprea Dassee 949
Baraik Chuttur Singb et al v. Greedhari Singh 803
Bardum Deo Roy v. Punchoo Roy ... 455
Burjorjee Cursetjeo Pantbakee v. Muncherjee Kuverji ... 681
Barrel! v. Dodd , 177
Bartoo Singh v. Ram Parmessur Singb 749
Barwaree Chand Thakur v. Muddun Mohun Cbuttordj ... 202
Butler V. Baker 1219
Bykant Mony Roy v. Kristo Soondery Roy 941, 985, 1013,
1014, 1178 CD. Rdne (see below, Rane).
Cahotty Filial v. Yella Pillai 729
Cally Nath Naugh Chowdhry v. Chunder N^tb Naugb Chow-
dbry 188, 189, 224
Campbell v. Hall 1
Camumah (B.) v. B. Chinna Venkatasa ... 945
Cavaly Vencata Narrainappab v. The Collector of Masulipa-
tam 101
Cbagbanlal v. Bapubhdi ... 687
ChalaCondu Alas^ni v. C. Ratn&cbalam et al 726, lOlO
Challa Papi Reddi V. Challa Koti Reddi 1091
Chamaili Kuar v. Rdm Prasad 170, 603, 618, 749
Chandrabbdgabdi v. Kasbinath Vitbal 234, 761
Chandra Sen v. Ganga Rdm ' ... ... ..• ^18
Chattar Lalsingh v. Sbewokrdm ... 296
Cbelikani Tirupati Raya v. R. S. Venkata Gopala Nara-
simba ^94
Chenbasawa v. Pampangowda ... ••• ••• ^Oil
Chennapab v. Cbellamanab l^'^
Chatty Colam Comara Vencatachella ^. Rijdh Rungasawmy
Jyengar 367, 611, 635, 637, 750, 1184
Chidambaram Chettiar v. Goari Nachiar ... — 684,685, 842
Chimnaya Nayudu V. Gurunatbam Chetti ... ^^^
Chinna Gaundan v. Kumara Gaundan ...910, 1042, 1043, 1044, 1045 Chinna Nagayya V. Pedda Nagayya ••• •" ^^^
XXXIV LIST OP OASES OITBD.
PAGE
Chinnarama t. Kri&tna Ayya 1199
Chinnaramakristna Ayya v. Minnatchi Amm^l 1197, 1198
Chintdman v. Sitdrdm 1223
Chintu V. Dhonda 1098, 1223
Chitko Raghundth v. Jdnaki 187, 1106, 1108,1115, 1146
Ohockalinga v. Subbaraya 626
Chooneena v. Jussoo Mull Deveedass 300
Choorah Monee Bose et al v. Prosonno Coomar Mitter ... 497
Chooraman Singh v. Shaik Mahomed All 791
Chotay Lai v. Chunnoo Lai 303, 330, 335, 431
Chottoo Misser v. Jemah Misser 97, 102
Chowdhry Chint&man v. Musst. Nowlukho Konwari 156,157, 158,
540, 736, 739, 740, 741, 743
Chowdry Herasatoollah v. Brojo Soondur Roy 1096
Chowdry Hnreehar Pershfid Doss v. Gocoolanand Doss 158,
264, 436, 743 Chowdry Padom Singh v. Koer Udaya Singh 941, 960, 971, 1206.
1218, 1219
Chowdry Purmessur v. Ilnnooman Dufct 1038
Chowdry Ujagar Singh v. Chowdri Pitam Singh 69
Chuckun Lall Singh v. Poran Ohnnder Sing 604, 609, 763
Chundermonee Debia Chowdhoorayn v. Munmoheenee Debia. 1220
Chundemath Roy v. Kooar Gobindnath 1221
Chundrabnlee Debia v. Brody 98, 102
Chundro Sheekhar Roy v. Nobin Soonder Eoy 3
Chuni Singh v. Hera Mahto 607, 610
Chuoturya Run Murdun Syn v. Sahub Purhulad Syn... 82, 582
Chutturdharee LalJ v. Musst. Parbutty Kowar 1222
Codrington v. Lindsay 1230
Collector of Madura V. Anandayi 866
Colleetor of MadurU v. Mootoo Rfimdlinga Sathupathy (the Ramnad case) I, 2, 151, 367, 846, 864, 865, ^66, 880, 881, 904, 959, 961, 963, 969, 970, 973, 982, 983, 987, 1002, 1005, 1099,
1117, 1176, 1215 Collector of Masulipatam v. Cavaly Vencata Narrainappah 95, 101,
102, 106, 138, 139, 301, 395
Collector of Moorshodabad V. Ry Shibessuree Dabea 1221
Collector of Rutnaghiri v. Vyankatr&v Nardyan 612
Collector of Surat v. Dhirsingji Vaghbdji. 896, 930, 1073, 1078,
1081, 1087
Collector of Surat V. Ghelldbhoy Ndrdnd&s 722
Collector of Surat v. Pestonji Ruttonji 190
LIST OF CASES CITED. XXXV
PAGE
Collector of Th&n& v. Hari Sitirdm... 174, 176, 197, 398, 772, 773 Collector of Tirhoot v. Haropershad Mohunt ... 894, 1016 1210
Collector of Trichinopoly V. Lakhamani 34q
Collector of 24 Pergunnahs v. Debnath Roy et al 779
Colston V. Carre 3Q2
Comulmoney Dossee v. Bdman&th Bysack 194^ 254 309
Cooper V. Phibbs 1226
Cossinaut Bysack et al v. Hurroosoondry Dossee et al 98, 257, 301,
303. 311, 313
Cotay Hegady v. Manjoo Kumpty IQlg
Court of Wards v. Pirth& Singh 4 370
Court of Wards v. Rdj Coomar Deo Nundun Singh ... I57, 740
Crastnarao v. Raghundth 1131^ 1141
Dabee Dial v. Hurhar Sing Iq^I
Ddd^T. App4 909,912,915
Dada Ravji v Bh4u Ganu glQ
Dadjee Deordv v. Vitul Devrav 699, 844
DadoWl V. Krishnd g87
Daee v. Mothee Nathoo 584, 943, 1173
Daee v. Poorshotum Gopal 57g
Dagambaree Dabee v. Tar&mony Dabee 1033
Dalpatsing v. N&n&bh4i et dL 357^ qH
Dalsukhrdm v. Lallubhai 327
Dalton V. Angus 382
D&modar V. Bai Mevd 75I
D&modhur Abiji v. Martand Apdji ... 411^ 870
Damodarbhat v. Uttamrdm 754
D^modar M&dhavjee v. Th. Parmdnandas Jeevundds 777
D4modhar Misser v. Senabatty Misrain 73Q
Danbuliiri Rdyappar4z v. Mallapudi Rdyudu 92
Dasaradhi v- Joddumoni ... ... ... ,,, ^26
Datti Parisi Nayudu etalY. Datti Bangaru Nayudu et al 387, 582
Davalata V. Beru bin Y&doji c< a/ gO^
Davis V. Turvey ^73
Davlatr4o bin R4mr4o M&ne Patel v. Nar&yanrdo bin Khun-
derao Mane Patel 610, 634, 635, 637, 836
Daya Bechur V. B^i Ladoo 131
Dayachander v. Hemchand 528
Dayashankar t. Brijvallubh Moteechund 631
Debee Dial V. Hurhor Singh 1049,1078
Debendrondth v. Odit Churn Mullick 784
Debi Parsh&d V. Thakur Dial 75,314,771,828
XXXVl LIST OF CASES CtTED.
PAGE
Deen Dyal Lall v. Jugdeep Narain Singh (Deen Dyal's case) 168, 605, 619, 621, 623, 624, 625, 626, 628, 636, 663, 664, 707, 708,
748, 767, 768
Deeno Moyee Dosee v. Doorgapcrsh^d Mitter
Denys v. Shuckburgh
Deo dem Kissen Chundershaw v. Baidam Bebee Desai Kallianrdi's case. See Goyemment of Bombay v. Kallianr^i.
Dev Pershdd v. Lujoo Roy
Devacooverbai'a case (see Pdinjivand^s v.)
Devapa et al v. Hemsheti Shivapa
Devapa Mababala v. Granapaya Annaya et al
Deva Singh v. Bdm Manohar
Dewakur Josee et al v. Ndroo Keshoo Goreh
Deyandth Roy et al v. Muthoor N&th Ghose
Dhadphale v. Gurav
Dharm&ji Y&man et al v. Garrdy Shriniy^s et al
Dhodyela e^ aZ V. Malanaik
Dholsang Bhaysang y. The Collector of Kaira
Dhondo y. B&lkrishnd
Dhondu y. Gangd
Dhoolubh Bh^ee y. Jeeyee
Dhunoopdaree Lall y. Gunpat Lall
Dharna Das Pandey v. Musst. Shama Sundri Debea 78, 720, 728,
1152, 1179, 1218
Dhurrum Singh y. Kissen Singh 699
Dilraj Koonwar y. Sooltdn Koonwar 1166
Dinkar Sitardm Prabhu y. Ganesh Shiyardm Prabhu... 986, 999,
1001, 1015
Dinonith Shaw y. Hurrynfirfiin Shaw 729
Dino Moyee Chowdhrain y. A. D. C Rehling 1011
Divakar Vithal Joshi y. Harbhat bin Mah&devbhat ... 174, 202,
345
Dobio y . The Temporalities Board 1
Doe V. Brightwen ^ ... 633
Doe V. Ganpat 223, 305, 638
Doe y. Hughes 607
Doe V. Summerset 607
Doo dem Colley Doss Bose y. Debnarani Koberanj 431
Doe dem Cooper y. Collis..* ^,. 229
Doe dem Crosthwaite y. Dixon 717
Doe dem Gocalchandar Mitter v. Tarrdchurn Mitter 681
|
• •• |
1012 |
|
• •• |
697 |
|
• •• |
1137 |
|
Desai |
|
|
106, |
331 |
|
706 |
|
|
683, |
701 |
|
••• |
618 |
|
731 |
|
|
115, |
488 |
|
••• |
186 |
|
672 |
,676 |
|
... |
381 |
|
,, |
722 |
|
••• |
782 |
|
... |
464 |
|
132, |
300 |
|
>.• |
727 |
LIST OF CASES CITED. XXXVU
PAGE
Doe dem Gooolkissore Seat y. Bdmkissno Haz&r&h 225
Doe dem Goluckmoney Dabee y. Digambar Day ... 95, 96, 100
Doe dem Green v. Baker 610
Doe dem Gnngan&rdin V. Bolrdm Bonnerjee 98,302
Doe dem Hencower Bye v. Hanscower Sye ... 1016, 1062, 1053,
1161 Doe dem Kora Shunko Tdkoor y. Bebee Munneo ... 1028, 1038
Doe dem Kullammal y. Kuppu Pillai 299, 309, 494
Doe dem Munnoo Lall y. Goper Dutt 667
Doe dem Rlijchunder Paramanic y Ballor&m Biswfis ... ... 313
Doe dem Ram&nond Mookopadhia y. Rdmkissen Dutt ... 301
Doe dem Sibnaath Roy y. Bunsook Buzzary 302
Doolichand y. Brij Bhookan 190, 253
Doorgd Chum Sarmah y. J&mpd Dossee 611
Doorgd Dayee et alv. Poorun Dayee et al 98, 312, 507
Doorgd Pershad y. Kesho Pers4d 209, 611, 612, 615, 673, 674, 7^^,
788, 1219 Doorga Pershad et al v. Musst. Kundun Koowar ...682, 690, 691
Dowlut Koyer y. Burma Deo Sahoy 106
Drake y. Mitchell 629
Drobo Misser y. Srineebash Misser 201
Dugappa Sheti y. Venkatramnaya 664, 707
Dukhina Dossee y. Rash Beharee Mojoomdar 1011
Dularchand V. Balramddss ... , 608
Duleep Singh et al y. Sree Kishoon Pdndey 282
Duljeet Singh y. Sheomunook Singh 683, 828
Duneshwnr y. Deoshonkur ., 431
Durbaree Sing y. ^aXxgrim ei al - 676, 830
Durma Samoodhany Ummal y. Coomara Venkafcachella Red-
dyar 1020, 1175
Duryasula Gangadhurudu v. Duryasula Narasammah ... 726
Duroo Singh y. Rdi Singh HI
Duttnar^en Singh V. Ajeet Singh II79
Dutt Zabho Lannauth Tha y, Rajunder Ndrdin Rae 118
Duyashunker y. BrijvuUubh 796
Edathil Itti y. Kopashon N6yar 285
Ebbs y. Boulnois 881
Eshan Kishor Achdrjee y. Harischandra Chowdhry. ... 1088,1117,
Fatmfibibi y. Adyocate General ^^5
Forbes v. Meer Mahomed Tuquee ^^"^
Freke v. Lord Carbery 773, "JT^
XXXVIU LIST OF OASES OITED.
PAGE
G. V. K 293
Gadgeppa Desai y. Apaji JivaDrao 787
Graj&pathi Nilmani v. Gtijdpathi Rddhdmani 89, 103
Galla Motirdm v. Ndro Bdlkrisbn& ... 700
Gane Bhive v. Kane Bbive 612
Ganendro Mohnn T&gore v. Rdjdh Juttendro Mohan T&gore
{See Jotendro Mohun Tdgore).
Ganesh v. Yamnnabdi 251
Ganesbgiri Qosdve v. B&bd bin Rdmdpd N&ik 180
Ganesb Moresbwar v. Prabb&kara Sakb&rdm 202, 818
Gang& Bisbeshar v. Pritbi Pdl 170, 208, 603
Grangd J4ti v. Gbasita 154
Gangapersad Roy y. Brijessorree Cbowdbrain 1198
Gangd Sabai v. Bird Singb 189
Gang4bdi v. Krisbn^ji 254, 262, 302
Gangdbdi v. Naro Moresbvar 580, 593
Gangdbdi V. Sit6r4m 250.252,260
Gang&b&i v. V&manaji 164, 772, 812
Gangdb6i V. Tbavar Mulla 229
Gang&r&m v. B&lia et al 327, 497
Gangdvd v. Rangangavda 1127, 1179, 1220
Gangabdi kom Sbidlpd v. Rdmannd bin Bbimannd 170, 219, 603,
604, 705
Gangulu v. Ancba Bapulu 625
Ganpat v. Morobd 195
Ganpat Pdndurang v. Adarjee Ddddbbdi ... 786
Gatba Ram Mistree v. Moobita Kocbin Atteab Domoonee. 90, 1126
Gauri v. Cbandrdmani 77, 79, 252, 734
Gauri Sabai v. Rukko 485
Gavuri Devamma G&ru v. Rdman Dora G&ru ... 143, 456, 457, 717
G6yabdi v. Sbridbaracbarya 992, 995
Gaya Din v. Bunsi Kuar 707
General Manager of tbe Bij Durbbunga v. Mabdrdjdb Ooomdr
Eimaputsing 95, 391
Gbel&b&i v. Pranjivan , 604
Girdhar v. Kalya 699
Girdbur Pursbotnm et al v. Govind et al 697
Girdbari Lall v. Kanto LaU (Girdbari Lairs case) 77, 161,
166, 167, 170, 193, 194, 207, 618, 621, 622. 6153, 624, 625, 640,
642, 646, 676, 716, 749, 803
Girdbaroe Sing v.Kolabut Sing 96,301
Gobin Cbundra v. Anand Moban 1218
LIST OF CASTS CITED. XXXlX
t>AOB
Gobin Chnnder et al v. Dulmeer Khdn *. 801, 315
Gobind Chunder Mookerjee v. Doorga Pars&d Baboo ... 601, 729
Gobind Soondaree Debia v. Jaggodamba Debia 961, 986, 993
GobindoNfith Roy v. Ram Kdnay Chowdry 1159, 1178, 1185,
1218, 1230
Gokool Pershdd V. Etwari Mahto 608
Gokoolanund Doss v. Musst. WoomaDaee... 1025, 1026, 1044, 1224
Gokuld&ss V. Hurgovind&ss 841
Gokulchnnd v. N&r£in D&ss 1192
Gokul Singh v. BhoU Singh 302
Golnck Chunder Bose v. Raghoon&th Sree Chunder Roy ... 203
Goluek Chunder Bose v Ram Chilla Dayee 80, 163, 792
Goma MahddeT (or Mahad Patel) v. Gokald&ss Khimji. 663, 706
Gonda Kooer v. Kooer Oodey Singh
Goodtitle dem King v. Woodward
Goodman v. Grierson
Gooroo Persbdd Roy et al v. Debee Pershad Tewaree . Gooroo Pershdd Roy v. NuffarDoss Roy Gooroo Prosunno Singh v. Nil Madhab Singh ...
Gooroogobindo v. Hurreemddhab
Gooroovummal v. Mooncasamy
Goorova Batten v. Ndrrainswamy Batten
Gopal V. Macnaghton
Gopal V. N6ro
Gop&l&ch&rya v. Keshav D6ji
Gopal Anant Kamat y. Yenkaji Nardyan Kamat
Gopalasdmi v. Chokalingam
Gopalayyan v. Raghupatiayyan
Gopalchand Pande v. Babn Kunwar Singh
Gopal Chunder v. Gour Monee Dossee
Gopaldiss y. D&modhar
Gopalddss V. Narotam Singh
Gopall Dutt Pandey y. Gopallal Misser
Gopal Rristna Sdstri y. Ramayyangdr
Gopal NSrdyan v. Atm6r6m Ganesh
Gbpalndrain Mozoomddr y. Mnddomutty Gnptee
Gop&l Narhar Saffray y. Hanmant Ganesh^Saffray 381, 416, 435,
863, 887, 1028. 1029, 1079
Gopee (or Gopu) Krist Gosain y. Gnnpersaud Gosain 602, 709,
724, 729
Gopee Lai v. Musst. Sree Chunddiolee Buhoojee 917, 944, 991,
1097, 1099, 1230
|
... |
816 |
|
•». ••• |
615 |
|
... ... |
627 |
|
1 ... ... |
719 |
|
... |
315 |
|
•.• ... |
1096 |
|
.*• «•• |
390 |
|
... ... |
1144 |
|
... ... |
309 |
|
... |
608 |
|
902, 987, |
1005 |
|
701 |
, 830 |
|
685 |
, 707 |
|
|
637 |
|
1028, 1029, |
1096 |
|
631 |
|
|
... ... |
102 |
|
... ... |
556 |
|
... .•• |
741 |
|
... ... |
813 |
|
••• ..• |
81 |
|
663 |
664 |
|
... 102, 611, |
612 |
Xl LIST OP OASES CITED.
PA6B
Gopeendth Ohowdry v. Gooroo D6ss Surma 204
Gopey Mohun v. Sebun Cower 102, 302, 313, 1145
Gopeymohun Deb v. Rfijih Ray Kissen 1161, 1171, 1173
Gordhanddss v, Prankor 731
Gorkhi v. Rdghu 430
Gorya Halya v. Undri 101
Gossain Dowlut Geer v. Bissesur Geer ... 202
Gossain Surajbharti v. Gossain Ishvarbharti 660
Gossain Surajbharti v. Gossain Rdmbbarti 560
Gourbullab v. Jugematpersaud Mitter 1078, 1171
G^ur Hurrie Kubr6j v. Musst. Rntnasuree Debia ... 1192, 1197
Gour Chunder Biswds v. Greesh Chunder Biswas 637
Gourindth Chowdree v. Anapooma Ohoudhoorain ... 966, 967
Gouree Kant Roy v. Ghirdhar Roy 205
Gouree Prosdd Rdee v. Jogmili 917, 992
Government of Bombay v. Ddraodhar Permdnandfiss ... 343, 846
Government of Bombay v. Desai Kallianrdi Hakoomatrai (Desai
Kallianrdi's case) 7/3, 774
Government of Bombay v. Ganga 597
Government of Bombay v. Gridhari Lall Roy 137
Government of Bombay v. Shri Gridharl&lji ... 772
Govind v. Laksbmibdi 995
Govind B&lkrishnd v. Mahddev Anant 1098
Govind Chunder Ghose v. R6m Coomar Dey 633
Govind Monee Dossee v. Sh4m Lai Bysack 101, 301
Govind Ndrdyan et al v. Y6sudev Vendyak 706
Govind Purshotam v. Lakshmibii 1192
Govind R&mchandra v. Moro Raghundth 674
Govind Soondaree Debia v. Jugganunda Debia (see Gobind
Soondaree).
Govind Visvandth v. Mabddiji Ndrayan 837
Govinda Oodian v. Alamaloo 842
Govindaya v. Kodsur Venkapa Hegde 680
Govindji Khimji v. Lakhmidds Nathubhoy 253, 299, 414
Govindnath Roy v. Guldl Chund 157
Govindo Hureehar v. Woomesh Chunder Roy 497
Govindo Mth Roy v. Rdm Kdnay Chowdhry 367
Govindrdm v. Vdmanrdv 167
Graham v. Londonderry • 186
Greedhari Doss v. Nund Kissore Doss Mohunt ... 555, 558
Greedhari Doss v. Nundkishore Dutt ^ 178, 201, 202
Greeman Singh v. Wahari Lall Singh 391
LIST OF CASES CITED. xll
PAGE
Gadadher Persb^d Tewaree v. Sandar KcMsmdree Debea .•. 963
Oaldbdis Jagjivandis V. The Collector of Surat 180
Gandojlb4w& v. W6raanbaw6 557
Gando Mabadev v. R&mbbat 610, 631, 635
Guiido Shiddhesbvar v. Mardan S&beb 604
Ganesh Chunder Roy v. Nilkomul Roy et al 491, 495
Gunesh Dutt. v. N. Moreshvar Singb 740
Ganga Mya v. Kisben Kiabore Cbowdry 1198
Gangapooree v. Musst. Jennee et al 552
Gnngi Prasad et al v. Phool Singb et tU 672
Gangd Persbad Kar v. Sbumbboo N4tb Burmon ... 96, 100
Gang6n&th v. Joalandtb 772
Gangoo Mull v. Bunseedhur 683, 710, 828
Guni Mahomed v. Moran 607
Gann^ppa Desbpdadee v. Sankappii Desbp^ndee ... 918, 943
Gannesh Junonee Debia v. Biresbar Dbul 316
Ganpat^r v. Ganpatgir 560
Ganputr&o et al v. Vitbobd et ai 434, 1037
Gnnpot Singh v. Gungd Persbdd 300
Gur6ch&rya v. Bhimilcb&rya ».. 724
Garuchurn Doss v. Goluckmonoy Dossee 635, 710
Guru D48 Dbar v. Bijaya Gobinda Baral 779
Guru Gobin Sb4b& Mandal et al v. Anand Lai Gbose 491
Gurunith Nilkantb v. Krisbnaji Govind 101
Gurusami Chetti v. Samurti Cbinna Mannar Cbetti ...629, 637, 708
Gurasbidagavda v. Rudragavdati et al 343
Gyanendro Cbunder Labiri v Kalla Pabar Haji ... 917, 981
EDaebutr&o Mankur v. Govindr£o M4nkur (Tbe M&nkar case) 862, 864, 913, 947, 952, 954, 956, 1010, 1025, 1027, 1050, 1055,
1132, 1160
Hammersley v. De Biel 189
Hanaji Chhiba V. Valabh Cbhiba 704
fianumantamma v. R&ma Beddi 288,421, 1212
Eanumantha v. Hanumayya 631
HanmantdLo Sadisbiv v. Keru 773
Hanuman Tewari v. Chirai 910, 1042
Harddban Roy v. Biswanitb Roy 997
Harbbaj v. Gumani ••• 172
Hari V. Laksbman 749, 790
Hariv. M4ruti 698,1237
Hari Vydian6tbdyanna v. Minaksbi Animal 391
Haribbat v. D&modharbhat 106, 178, 309, 431, 452, 667
Xlii LIST OF 0A8BS CITED.
FA6B
Hariparsid ▼. Bipnji Rirp^hankar 693
Harjtvan Anandrim ▼. N&ran Haribh4i 441
Harreeddss ▼. Ohirdnrd&BS ... ••• ••• 789
Harsahaimal v. Mahiiij Singh 707
Harrey t. Famie 876
Hasan Ali ▼. N&g& Mnl 157, 1038
Hasba t. R4gho ••• ••• #•• ••• •#• ••• ••• 685
Hawkins ▼. Kemp ... ... ... 1219
Haza Hira ▼. Bhdiji Modan ... 168, 716
Heerd Singh ▼. Barzar Singh 1149, 1230
Hoerficband ▼. Mabashunkar 637
Heer&l&l y. Mosst. Konsillah ... ... 80, 757
Heer&l&l Baboo v. Masst. Dbancoomary Beebee 331
Heer&l&l Boy y. Bidyadbur Roy 633
Hemendro Coomar Mollick y. Bftjendro Ldll Moonsbee ... 629
Wggins (ex parte) ..« 629
Hill y. Wilson 191
Himmatsing y. Ganputsing ... 650, 793
Hirbdi y. Gk)rbdi ... .•• ... ... 157
Hobson y. Sherwood 666
Honamma y. Timanabbat et al 591, 592
Hoymobutty Debia Cbowdhrain y. Koroona Moyee Debia ... 262
Hnllodhur y. Bimn&th 827
Honoomanpersand Panday y. Masst. Baboyee Mnnr&j Koonweree 101, 166, 167, 193, 395, 610, 611, 614, 634, 640, 643, 646, 647
Hunsdpore case (The) 744
Huradhnn Mookurjia y. Mosst. Mathoran£th Mooknrjia 872, 903,
941, 942. 945, 959, 1222
Hardwar Singh et al y. Luchman Singh 682
Hureebhaee Soonderjee ... 846
Huree Kishore Bhya y. Nullita Soondaree (jk)optft 1231
Hut Dyal Ndg y. Roy Krishto Bhoomick 1096
Hurondth Roy y. Goluoknilth Chowdhry 1235
Hurreemohun Shdhd y. Sondtum Shdhi 589, 544
Hurreewulnbb Gungfirim y. KeshowrUm Sheodiws 603
Haro Doss Dosteeddr y. Sreemntty Huro Pria 143
Hurosoondree Dossee y. Ohundermoney Dossey ... 1077, 1137
Huro Mohun y. 8. Auluck Monee Dassee 322
Hurrosoondery Debea y. Rajessuri Debea 94
Harrydoss Datt y. Rungunmoney Dossee ... ... 100, 313
Hurrydoss Dutt y. Shreemutty Uppoomah Dossee et al 95, 107, 432 Husband v. Dayis , 606
LIST OP OASES CTTBD. xlili
PAGE
lohir&ni v. Ganpatr&m ... 743
Ichirim v. Pnrm&nand 463, 494, 608
Ich&r6m Day&r&m v. lUiiji J&g& ^5
Ichh£ Lakhsmi v. Anandrim .^ ... 255
lohhAv^m Kalidiss y. GoyindHim Bhowllnishankar ... ... 190
Data Shavl^tri et al v. Ilata Nftrdyanan Nambadiri 593
Inderjeet Singh et al v. Mnsst. Her Koonwar et al 433
Indenm Valangjpooly Taver v. Bamasawmy Pandia et al 375, 415,
776 Indras^ v. Sada ... ... ... ••• ... ... ... ^07
Indromoni Chowdhrain V. Beh&ri Lil Mallick 1130, 1135
Isbim Ghander Mitter y. Buksh Ali Soud&gur 891
Issur Ghander y. Poorana Beebee 1233
Jadomoney (tee Sreematty).
Jido Singh v. Muast. Rinee 803
Jadoo Shat y. Kadumbinee Ddssee 610
Jadow Malji V. Chhagan michund 541,672,675
Jadamani (or Judeemani) Diai y. Khetra Mobnn Sbil... 258, 260,
262, 756
Jagannafch Pal y. Bidyanand 573
Jagann4&ha y. B&dh&b&i 1131
Jagjiyand&s Jayerd&s y. Imd^ Ali « ... 845, 846
Jagmohan Haldar y. Sarodamoyee Dossee 303, 782
Jagnnnadbarow y. Kondarow 737
Jaikisond£a y. Harkisond&s ... ... 150, 152
Jait&r&m Bechar y. B&i Giing& 699, 763
Jamiyatr&m y. Parbhud^s (JamiyatHLm's case) 77, 161, 194, 259,
631, 645, 6-^6, 746, 772, 789
Jamiyatr&m and Uttamrftin y. B&i Jamnd 146, 149
Jamiii y. Machul Saba or Sabee 194, 241, 262, 392
Jamooni Bassya y. Bamasoondari D&ssya 905, 948, 959, 960, 964
Jainuii4b4i y. Baycband 1047, 1119, 1178, 1180
Janirdban P&ndurang y. Gop&l 154
J4nki Dibeh y. Sad&sbeo R6i ^. 969
Janokee Bebea y. Gopaal Acb&rjea 915, 1043
Jannobee y. Dwark&natb ... ... .^ 1179
Jeewan Panda y. Mnsst. Son4 1113
Jenkins y Robertson 96
Jeryis v. Lawrence... ... 774
Jesing Bhaee ei al y, Baee Jeetawowoo ^^
Jetba N&ik y. VenktdppA 77, 193
Jettyapa y. Lazimaya 748
xliv LIST OP CASES CITED,
PAGC
Jew4jee v. Shamrovr ... ... ... ... 846
Jhunna Kuar V. Chain Sakh 95,402
Jhubboo Lall Sahoo v. Khoob Lall et al 785
Jijoyiamba Bdyi v. Karaakshi Bayi 103, 1152
Jivan V. Kasi Ambiadds 826
Jivanee Bh&yee v. Jivu Bhdyee 1028, 1030, 1228
Jivi V. Rdmji Valji 262
Jodoondth Dey Sircar v. Brojondth Dey Sircdr... ... 678, 781
Jogendro Deb Roy v. Funindro Deb Roy ... 615, 616, 636, 707
JohurraBibee v. Sreegopal Misser et al 80, 259, 610,612,638.
787
Jones V. Robinson ... ... ... 794
Jotee Roy et al v. Bheechuch Meah et al ... 779
Jotendro Mohun Tagore v. Jogul Kishore 95
Joti Bhimrav V. Balu bin Bapuji... 172
Jowdla Buksh v. Dharum Singh 633
Joy Chundro Raee v. Bhyrab Chundro Raee 916, 941., 964
Joykisbo Cowar v. Nittyaaund Nuudy ... 635
Joy Narain Giri v. Girish Chundru Myti 6?4, 694
Judoo Nath Sircar v. Bussant Coomar Roy 293, ;<26, 514
Joy Tdra Dossee V. Roy Chunder Ghose 1223
Jngbundoo Run Sing v. Radasham Narendro 1049
Jugdanund Gosamee v. Kossub Nund Gosdmee 674
Jugdeep Narain Singh v. Deen Dyal Lall 282
Juggern^th Roy Chowdry v. Kishen Pershdd ... 201
Juggodumba Debea v. Moneruth Mookerjea 969
Juggodumba Dossee v. Puddomoney Dossee 185
Juggut Mohinee Dossee v. Musst. Sookheeraony Dossee 160, 185,
189, 200, 202, 203, 205, 206, 673
Jugjeevun Nuthoojee V. Devsunkur Kaseerdm ... 300
Jugnn&th V. Sheo Shunkar 328
Jummal Ali v. Tirbhee Lall Doss 1184
Jumooua Dassya v^. Bamdsoondari Ddssya 1234
Jushadah Raur v. Juggernaut Tagore 302
Jussoda Kooer v. Lallah Netty a Lall 355
Juswant Singh v. Dooleechand 894
Juttendromohun Tagore v. Ganendromohan Tagore (Tagore case) 60, 179, 181, 183, 199, 20;5, 206, 224, 226, 229, 658, 667, 668, 721, 813, 881, 1009, 1.10, 1146, 1171, 1233
Jykowar e/ a/ V. Musst. Bhaotee 753
K. Kishen Ldlld v. Javallah Prasad Lalla 491, 497
E. Venkatramuuiia v. K. Bramanna Sastralu 794
LIST OF CASES CITED. xlv
PAGE
Kachu V. Kachob4 686, 695
Kdchubhii bin Galabchand v. Krishn^bdi 681
Kadap4 v. Adrashyap^ (or Adrashapa) 3.97, 683
Kahandas Nfirandas— Jw re 1, 3, 4, 6, 8, 205, 1105
E41ee Churn Singh 7. E. Solano e/ a^ 611
Kilee Ohnnder Sein et al v. Adoo Shaikh et al ... 696
Kalee Ghunder v. Sheeb Chunder 1212
K£U Coomar Ohatterjee v. Tdra Prosunno Mookerjee ... 1232
K4U Pershdd v. Bam Charan 657
Kalidass Das v. Krishau Chundra Das 580, 681
Kalidass Kevaldas v. Chotalal et al 608
Kallappa v. Venkatesh 633, eQ4»
Kalleepersaud Singh v. Kapoor Koonwareo 79, 81
Killee Sunkar Saanyal v. Denendro Nath Saunyal 676
Rally Chum Shaw v. Dukhee Bibee 424
Kally Prosonno Ghose v. Gocool Chunder Mibter 368, 983, 992,
993, 996, 1008
Kalova v. Padapa 1223
Kalpagathachi v. Ganapathi Pillai ... 253
Kalu V. Koshibai 758
K41u Narayan v. Hanmdpa 787
Kamakahi Ammal v. Chidambara Reddi 674
Eamivadhani Venkata Snbhaiya v. Joysa Narasingappa ... 95 Kames^'ar Prasad v. Eun Bahadur Singh 101, 166, 170, 395, 641, 750
Kamikhapras&d v. Srimati Jagadambd Dasi 101
Kandasami v Doraisami Ayyar ... ... 666, 674
Kanhya Lall v. R5dha Churn 1234
Kanto Lall v. Girdhari Lall 749
Eariapa Irapd v. Ir&pd Solbdpd et al 706
Karpakambal v. Subbayyan 628
Kartick Chunder v. Gour Mohun Roy 99
Karundbdhi v. Gopdli 1228
Kdshee Chunder'a case 757, 966
Easheeshet v. Nagshet 848
Kasheeshuree Debia v. Greesh Chunder Lahoree ... 262, 1181
Kaaheeki shore Roy v. Alip Mundal 610
Kaahibdi v. Tatid 915, 1047
Kaahi Bashi Ramlinga Swdmee v. Chibumberndth Koomar
Swdmee 554
KasiYesaji v. Ramchandra Bhimaji Nabar ^^8
Kasturbdi v. Shivdjiram Devkardm ... 261, 592, 757
Kastur Bhav6ni t. Appa 641, 714, 813
xlvi LIST OF CASBS CITED.
PAGE
Kattama Nachiar et al ▼. Dorasinga altos Gourivallabai ... 44i E&tama N&t<;bi&r t. The IUj4h of Shivaganga (The Shiva-
gunga case) 70, 74, 94, 95, 806, 331, 334, 702, 716, 719, 724,
740, 74t, 829
Katbapefumal v. Venkdbdi »^ 89, 103-
Faitnsheri Pishareth Kanna Pisharody 7. Vallotil M4nakel N&-
rdyaoam ••• •«• ••• ••• ••• ••• ••• ••• 608
K^i Ahmed v. Moro Keshav ... 698
Keerut Sing v. Koolakul Siog et al 101, 301
Keernt Naraen v. Musst. Bhobinsree 1063
Keith V. Burrows ... 627
Kench&v& v. Ningdpa .^ 1092
Kendall v. Hamilton 629
Keppell v. Bailey ... 183
Kesaree et dl v. S^mirdhan 379, 423
Keshav Chnnder Ghose ▼. Bishon Pershid Ghose ... ... 996
Keshav Sakh4dim D&dhe v. Lakshman Sakh&rdm 706
Keshoo Tewaree V. Ishree Tewaree 709
Keshow R4o Diwdkar v. Ndro Jandrdhnn Patunker ... 164, 167
Kesserbii v. Yallab Bivji 470
Keval V. Yishnoo •• ... 695
Keval Kaber v. The Talukdari Settlement Officer ... 204, 343
Khajah Enaetoollah v. Kishen Soondur et al ... 696
Khemkor v. Umidshankar... 164, 415, 593
Kherode Money Dossee v. Doorgdmoney Dossee ... 182, 670 Khetrdmani Dasi v. K4shin4th D4s ...232, 237, 248, 751, 755, 760
Ithodhdbhdi Mahiji v. B4hdhar D41a 110, 448
Khondiji Bhav6ni v. Salu Shivrdm ..• 701
Khnggendcr N. Chowdhry v. Sharnpgir Oghoren^th ... 556
Khusdichand v. M4h4devgiri ... 160, 175, 185, 200, 201, 657, 785
Khushdlbbdi Narsid&ss v. Kabhai Jor4bh&i 704, 705
King V. Hoare ... •«• ... ... 629
Kisansing v. Moreshwar ••« 636
Kishen Govind v. Ladlee Mohnn 293
Kishen Shqnker Datt. v. Moha Mya Dossee 1221
Kisto Kishore Boy v. Issur Chnnder Boy 1231
Kiyipattu A. N&rayan Nambndri v. Ayikotillatn S. Nambndri 553 Koer Sheopershdd Ndrdin v. The Collector of Monghyr ••• 823
Kojiyadu v. Lakshmi • ^. 591
Kombi V. Lakshmi 634
Komnl Monee Dossee v. Alhadmonee D&ssee 1218
Kondo Keshav Dhadphale v. B^b&ji bin Apdji Gurrav. 185, 411
LIST OP CASES CITED. xlvii
FAGS
Konerrav v. Gumrav 634, 769, 778, 793
Konwar Doorgdndth Roy ▼. lUmcbonder Sen ...160, 185, 203, 785 Koodee Monee Dihei v. T&rr^hand Chnckerbutty ... 260, 757 Eooer GooUb Sing y. lUo Knran Singh 97, 101, 487, 496, 871
Eoomaree Debia t. Boy Lucbmeeput Singh ei al 80, 260, 262, 757 Koonj Behari Chowdhry v. Grocool Chunder Chowdhry ... 1232 Koonjbehari Dhur v. Premohand Dntt ... 208, 294, 301, 312, 777
Eoor Oodey Singh v. Phool Chand et al 100
Kosh4l Chuckurwntty y. R&dh&n&th Chacknrwntty 724
Kotarbas&pa y. Chanverov& 89, 294, 312, 329
Eotta Bam&s&mi Chetty y. Bang^ri Se'shimi Naydniyara 163, 606,
610
Koylasn&th Doss y. Gyamonee Dossee 67
Erishndji y. F^durang 112, 151
Erishnimmd y. Gtangdrdo 608
Erishna Bdo Ganesh y. Bang Bdo 184, 463, 846
Erishnar&o Jahftgird&r y. Goyind Trimbak ... ... ... 607
Erishnadk) B&mchandra y. Mdndji bin Sayiji 607, 608, 610
Erishni B^y (B) y. Lakshman Shanbhogae 607, 632
Erishnasdmi y. Erishndmd ... 599
Erip& Moyee Debid y. Golack Ohnnder Boy 1223
Erip4 Bam y. Bhngwdn Doss 1235
Erippd Sindhu Patgoshe y. Eanhaya Acharyd 725
Erishnd Behdri Roy y. Mnsst. Brojeshwari Chowdhrani ••• 1235
Eristniah y. B. Panakaloo „. 724
Eristniengar y. Venamamalai Jyengar 1034
Eristo Beharee Boy y. Banwdree Loll Roy 1284
Eulledn Singh y. Kripd Singh 1133
Eumdrd Asima Krishnd Deb y. KnmdHi Eamdrkrishni Deb. 1/8, 184
Enmarayela y. Vtrana Gonndan 471
Knmarsami y. Palla N. Chetti 635
Eomla et at y. Mnneeshnnkar 79, 256
Eonbi Komapen Enrnpu y. Changarachan 696
Eannyah Pande et al y. Rim Dhun Pdnd^ 702
Enpoor Bhuwdnee y. SeyQkrdm Seoshunker 99
Eappanamanl y. Pancbanadaiyane 681, 841
EarniHLm DayiHLm y. Haribhoy Virbhdm 186, 294
Entti Ammal y. R4d& Eristn^ Ayy&na 471, 494
Laoey y. Hill ... 1227
Laohman LaU y. Mohnn Lall ... 1121, 1137
Lachmi N4riin y. Wilayti Begam 186
Lakshman y. Ganpatr^y ... 398
xlviii LIST OF CASES CTTED.
PACK
Lakshman v. Jarandbai 726, 728
Lakshmau v. Mdla bin Gann 1119
Lakshman Ammdl v. Tiruvengada 494
Lakshman Didd mik v. Rimchandra Dadd N&ik 178, 182, 192, 209, 211, 219, 604, 651, 667, 663, 671, 748, 763. 771, 787,
793,808,813,836, 1111, 1169
Lakshman lUtmchandra y. Saraswatibdi 163, 259
Lakshman Rdmchandra ▼. Satjabh4m4bdi 80, 98, 236, 250, 252,
269, 263, 396, 678, 661, 751. 756, 781
Lakshmana Rda v. Lakshmi Ammdl 187, 1109, 1151, 1217
Lakshmanddss v. Dasrat 6, 7, 695
Lakshmi Ndr&yan Singh et al y. Tulsee Ndrdjan Singh et al„, 89 Lakshmdppd y. Edmdvd ...910, 911, 912, 916, 930, 938, 943, 1017, 1029, 1039, 1040, 1041, 1042, 1043, 1044. 1048, 1063, 1064, 1065, 1073, 1076, 1077, 1079, 1081
Lakshmibdi y. Dddd Ndndji 464
Lakshmibdi v. Ganpat Morobd 95, 181, 666, 667, 671, 672, 717, 813, 816
Lakshmibdi v. Jayardm Hari 123, 127, 132, 629
Lakshmibdi ▼. Shndhar Vdsudev T4kl^ ... 673, 1159, 1164, 1165
Lakshmibdi y. Vishvandth Ndrdyan ... 472
Lakshmishankar v. Vaijndth 170, 200, 221, 230
Lakshuman v. Krishndji Rdmdji 703
Ldid Ganpat Lall et al y. Musst. Toorun Koonwur et al ... 822
Ldlchand Rdmdaydl y. Gumtibdi 95
Laljee Sahoy v. Fakeerchand 77, 618, 746, 747, 790
Laljeet Singh v. Rdjcoomar Singh 667, 678, 776
Ldlld Bissumbhar Lall y. Rdjdrdm 779
Ldlld Banseedhar y. Koonwar Bindeseree Datt Singh ... 673
Ldlld Chanilal v. Savaichand 205
Ldlld Joti Lall v. Masst. Dardni Kower 471, 870, 1182
Ldlld Koondu Lall et al y. Ldlld Kalee Pershdd et al 100
Ldlld Mohabeer Pershdd v. Mussfe. Kundun Koowar ... 167, 690
Lalloobhoy Bappoobhoy y. Odssibdi 2, 91, 117, 127, 128, 473, 485,
529, 1007, 1182
Lallnbhdi y. Mdnkuyerbdi 113, 117, 123, 131, 132, 161, 646
Lallnbhdi y. Bayal Bdpuji 345
Lalabhdi Surachand (or Sevchand) v. Bdi Amrit (Bdi Amrit's case) 179, 191, 192, 198, 218, 441, 685, 686, 692, 731
Lambert v. Rogers 794
Ldroo y. Mdnickchund Shdjee 754
Ldroo y. Sheo • 496
Laxumon Guneshbhat y. Krishndbhat 430, 436
LIST OF CASES CITED. xlix
PAGE
Leech v. Scbweder ... ... ... ••• ... 189
Legard y. Johnson ... 254
Leigh y. Shepherd «. ••• 610
Lekr^j y. Baboo Mahlib Chand 672
Lingi Molloo Pitch6md y. Lingd Malloo Gonapp&h ... 681, 697
Lochnn Singb et al y. Nemdharee Singh et al 710
Lockyer y. Ferryman ... 629
Loken&th Mnllick y. Odoychurn Mulliok 613, 751
Lokendch Roy y. Shimsoonduree ... ... ... ... 1192
Lotlikar y. W^le ... «.. 785
Lowis y. Ramney ..• ... ... •*• ..• 613
Luchman Singh y. Shumshere Singh 697
Luchmi Dii Koori y. Asmin Sing ... ... ... 167, 624
Luchman Lai y. Mohnn Lai ... ... ... 1016
Lnchraeendth Rdy y. Mnsst. Bhima B^ 1028
Luchmanchander Geer Gossain y. Kalli Chum Singh. 316, 323
Lokked Debed y. Gungd Gobind Dobey 3
Lnkhmon Chonder Dall41 y. Modhoo Mockhee Dossee ... 727
Lnlloobhoy y. Cassibai 1007
Lntchmeedayee y. Narasimmah ... 680
Luximon Row Saddsey y. MullAr Row Bdji 708, 728
M. V. Verdiah y. M. Lutchumia... 667
Maccand&s y. Ganpatrdo 178, 195, 196, 665, 668, 702
Madayaraya y. Tirtha S&mi ... ... 301
M4ddi y. Sheo Baksh 417
Madhaya Pfinikar y. Goyind Pdnikar 609
Hidhayr&o y. Q^ngkhki ... 235, 252
H£dhayr£o y. Satyana et al ... ... 607
Madho Dis y. Kkmti Dds 554, 556
Madhoo Dyal Singh y. Golpar Singh et (d 638
Miglaisri Garudiah y . Nardyan Rnngiah 161
Mah4bal6y4 Parm4y4 y. Timdyd Appdyd 608, 633, 636, 664, 706, 707
Mahibleshyar V. Sheshgiri „ 787
Mah&bubi y. Amind 396
Mahddey (or Mahada) y. N&riin Mahddeo 632, 750, 789
Mahadew et al y. Trimbuk Gopal 700
Mahantapa y. Nilgangowa 464,938,1189
Mah^doo bin Jinii y. Shridhar B4b&ji ... 606
Mah£r4jd Goyindndth Ray y. Gal41chnnd 973
Mah4r&jah Hetn&r4in y. Baboo Modn&riiin Sing 702
Mahiiijih Jnggernant Sah4ie y. Musst. Mncknn Koomwar ... 367,
1167, 1208
I LIST OF CASES CITED.
PAGE
Mahdrdjd R&jender Kishen Sing v. B4j6 Sdheb Pershdd Sein. 1236 Mahdr6j case (The) (*ee Brijbhookunjee Mahirdj v.).
Mahdrdj Kuwar Busdev Singh v. M. Roodur Singh 737
Mahdr&j Part4b Nar&in Singh v. Mah&rdnee Soobhd Kooer. 222, 668
Mah4r&n& Fatesangji y. Desai Kalyanr&ya 772
Mahdrdnee Brojosoondery Debia v. Rd^ee Luckhmee Roonwaree
160, 185 Mahddbee Shibessouri Debia v. Mothoorandth Achdrjo 197, 201 Mah4ravl4l Mohansingjee Jeysingji y. The Goyemment of Bom- bay 179. 190
Mahashoya Shosinith Ghose y. Srimati Krishna Soondari D&si
1087. 1089
Mahdsookh y. Budree ... ••• ... 211
Mahodd y. Kalydni et al 321
Malhdr Sakhdrdm y. Udegir Guru Champafcgir ... 202, 557
Mal&p4 y. Basdpd 778
Mameddla Yenkatd Kristn4 e< a2 y. Mameddla Tenkatarntna-
mah ••• ... ... ... 79,235,250
Manby y. Scott ... ... 260
Manchdrdm Bhagy&nbhat y. Prdnshankar 202, 786, 818
Mancharjee Pestonjee y. N&rdyan Lakshnmanji 222
Mangala Debi y. Dindndbh Bose 77, 79, 252, 345, 732
Mangaldda (Sir) Nathubhoy y. Krishn&bdi 182, 224
Mdnick Ohnnder Dutt y. Bhuggobutfcy Dosaee 1041
Manikldl Atniardm y. Manchershd Dinshaw Coachman 203, 205,
Mdnikmulla y. Pdrfoattee
Manjandtba y. Ndrdyan
Minkar case {see Haebntrao Mankar).
Mankoonwar ei al y. Bhngoo ei(d
Manockchnnd y. Nathu Pnrshotnm Manohar Ganesh y. Keshayrim Jebhdi ...
Mantdppd y. Buswantrdo
Mantena Bayapardj y. Oheckuri Venkatardj
Marshall y. Button
Martin y. Lee
M&mti et al y. Vishwandth
Mdruti Ndrdyan y. Lilfiohand Matangini Debi y. S. Jaykali Debi Mathews et al y. Girdharlal Fatechand ... Mathurd Ndikin y. Esu Ndikin 2, 90, 169, 375, 423, 508, 531, 552,
597. 743, 933, 1029, 1214
|
228, |
670 |
|
... |
367 |
|
|
698 |
|
68 |
|
|
541, |
772 |
|
0, 185, 201, |
20S |
|
••• ... |
681 |
|
... • . . |
681 |
|
254, |
260 |
|
.*• .•• |
220 |
|
••• ... |
703 |
|
...607, 634, |
637 |
|
... ... |
691 |
|
... ... |
695 |
LIST OF CASES CITED. li
PAOX
Mayarim v. Motiram 101, 312, 823.
Majdrdm Sevr&m y, Jayvantriv P4ndarang 615
Mayor of Lyons v. Advocate General of Bengal 230
Megha Sh£m Bbavanrdo v. Vithalrdo Bhavanrio ... 635, 676, 766
Melgirdppa v. Sbiv&ppa .„ ... joi, 102
Merb4i v. Perozbdi „ ,„ 206
Mhilsibai v. Vithobd Khandapp6 951, 1042, 1048, 1061, 1064, 1065
Mir Mahar Ali v. Amani ... 396
Mithoo Lall v. Golam Nusseerooddeen ... 662
MiltaKanth v. Niranjan 786, 817
Modhoo Djal Singh v. Goolbar Singh at al 749
Mobabeer Pras4d v. Ramyad Singh 143, 168, 282, 477, 612, 708,
760, 780
Mohandiis v. Krishnfib^i 492, 495
Mohar Ranee Essadah Bdi v. The B. I. Company 313
Mohendrolal v. Rookiney Dabey ... ... ,^ ,„ ,„ 122 1
Mohesh Chander Bose v. Ugrakant Banerjee 102
Mohesh Chander Chackerbutty y. Koylash Chander 204
Mohesh Chander itoy v. Chander Mohun Roy ... 155, S7S
Mohant Burm Saroop D^ss- v. Kdshee Jha 201, 657
Mohaat Kishen Geer v. Busget Roy ei al 97
Mohanfc Madhooban Doss v. Hurry Kishen Bhunj 574
Mohant Bamandas v. Mohunt Ashbul Ddss , 555
Mohant Shevprokash Doss v. Mohant Joyrdm Doss 673
Mokoondo Lai Shaw v. Ganesh Chander Shaw ... 178, 195, 671
Mokando LaU Roy v. Bykunt Ndth Roy ... 119$
Monirdm Kolita v. Kerry Kolitini 93, 94, 257, 258. 588, 691,
762, 986, 998
Moodley v. The East India Company 1
Moonshee Bazloor Raheem v. Shamsoonissa 90
Mootoor Engadachellasamy Manigar v. Toombayasamy Manigar
737, 8i 1,81 9, 837 Moottia Madalli v. Uppon Venkatacharry ... 1022, 1155, 1163
Mordaant v. Mordaunt ... ,,, 376
Morehoase v. Rennell , ^^ 881
Moro Vishvanath v. Ganesh Vithal 76, 143, 344, 663, 677, 698, 828
Mornn Moyee Debia v. Bejoykisto Gossdmee 1029, 1199
Moteelal v. Mitterjeet Singh ... 531
Moti Muljee ▼. Jamniidiss Mulji 663, 688
Motir&m Sukrdm v. Mfiyardm Barkatrim 624, 636
Moulvie Mahomed Shamsool Rooder et al v. Shewukrdm 228, 668, 670 Mrinmoyee Dabea v. Bhoobuumoyee Dabea 1236
Ki LIST OF CASES CITED.
FAGB
Hudden Gopal Lsl v. Musst. Groaraabatty ... 642
Mudden Gopal Th&koor et dl v. B6m Baksh Pdnday et al
(Mudden Thakoor's case.) 170, 621, 625, 716, 772, 812
MudvallappaT. Gursatava... 593
Muhalakmee v. The Three Grandsons of Kripasbookull. 191, 445
Mnkoon Misr V. Eunyih Oj4h 631
Mnla V. Girdharilal • 235
Mulohand y. B6i Manchd • ... ... 1113
Mulhiri v. Shekoji 718
Mulji L4I1& V. Goculd4s8 V4U& 729
Mulkojee v. Bftlojee ... 846
Munchd (B4i) v. Narotumd&ss £ishid488 et al 829
Monsookrdm v. Pr&njeevnnd^ss ... • ... 100, 102
Mnrlidhar v. Sapdia... ... ... ^. ... 673
Muragayi v. Yiramakl^I 480
Murdri v. Sab& • ... 599
Murdri^pd v. Krishndpa ... ... 700
Mnrdrji Gokald&ss v. P&rvatibdi 155
Murray y. Hall 697
Masst. Ameeroo Nissa Bibee y. B. Otool Chander et al ... 781
Musst. Anundee Kooer y. Bachoo Sing ... 1232
Musst. Anundee Koonwar y . Khedoo LaU... 78, 676, 688, 689, 828 Musst. Annndmoze^ v. Sheeb Chunder Roy ... ... 905, 947, 976
Musst. Balgoyinda et al y. Lai Bahlkloor e< ol... ... 577, 580
Musst. Bdnnoo y. Kdsheerdm 78, 682, 729
Musst. Bebee Bachun y. Sheikh Hamid Hossein 896
Musst. Bhagbuttee Ddee y. Ohowdry BhoUniith Thdkoor 96, 101,
184, 814, 668, 1110, 1157, 1229
Musst. Bhilu y. Phul Ohand 756
Musst. Bhoobun Moyee Debia y. B4m Kishore Achdrjee Chowdry, 89, 98, 97, 98, 100. 181, 945, 954,959, 964, 966, 979, 982, 983, 986, 993, 1008, 1014, 1108, 1171, 11/6, 1178, 1183, 1185, 1198, 1206, 1230
Musst. Bhowna et cH y. Boop Keshore 282
Musst. Bhuganee Daiee et at y. Gop&ljee ••• ... ••• 486
Musst. Brijimalee y. Musst. Prdn Pidree 128
Musst. Cheetha y. Baboo Miheen LaU 605, 666, 705, 729
Musst. Chimnee Baee y. Musst. Guttoo B6ee 997
Musst. Deokee y. Sookhdeo 591
Musst. Deo wan ti Koonwar y. Dw&rkdndth 663
Musst. Deepoo y. Gowreeshunkur ... ... 1209
Masst. Dig Ddye et al y. Bhuttun Lall et al ... ... ... 487
Musst. Doorga Bibee et al v. J^aki Pershid 497
LIST OF CASES OITED. liii
FAOB
Masst. Doorg& Koonwar v. Musst. Tejoo Koonwar 301
Musst. Dullabh De ▼. Manee Bibi ... 1049, 1060, 1160. 1224
Musst. Daloon Koonwar v. Sungum Singh 259, 262
Musst. Edul Koonwar v. Koonwar Debee Singh ... 1209, 1222
Musst. Granga Jati v. Ghasita 591
Musst. Ghylannee y. Nirpal Singh 960
Musst. Qolab Koonwar v. The Collector of Benares ••• ... 164
Musst. Goolab v. Musst. Phool 1168, 1169
Musst. Gowra Chowdhrain y. Chummun Chowdhry ... ... 67
Masst. Gjankoownr y. Dookhnrn Singh et al 330, 431
Musst. Heera Kooeree y. Ajoodhja Persh&d ... ... ... 760
Musst. Himulta Ghowdrayn y. Musst. Pudoo Munee Cbowdrayn
247, 756
Musst. Imrit Koonwar y. Boop N4diin ... 1106 1107
Musst. Indro Kooer et al y. Shaikh Abdool Purkat et al ... 322 Musst. Josoda Koonwar y. Gowrie Byjon&th Sohaesing ... 693
Musst. Jje Koonwar y. Bhikdree Singh 585
Musst- Jjmani Dibiah y. Bdmjoy Chowdry 89, 96
Musst. Khukroo y. Joormuk Lall 757
Musst. KoUanej Kooer y. Luohmee Pershad 668
Musst. Kooldeep Kooer y. Bunjeet Singh ... • 749
Musst. L4doo y. Musst. Oodey Kowree • ••• ... 1224
Musst. L41ti Kuar y. Gang& Bishen etal 80, 163, 755
Musst. Mohroo Kooeree y. Musst. Gunsoo Kooere 693
Musst. Mooneea y. Dhurma 1030
Musst. Mooniah et al y. Musst. Teeknoo 724
Musst. Mulleh y. Purm4nund «•• 1226
Musst. Munchi y. Brijbookan et dl 678
Musst. Murachee Koour y. Musst. Gotmd Koour ... 433, 482 Musst. Nouruthum Kooer y. Baboo Gouree Dutt Singh et al.,. 637
Musst. Oodey Koonwur y. Musst. Lidoo • 960
Musst. Pedree Dayee y. Musst. Hurbunsee Kooer ... 906, 1216 Musst. Phoolbash Koonwar y. L6114 Jogeshwar Sahoy ... 606
Musst. Phooljhuree Kooer y. Bdm Pershun Singh ••• 683, 699 Musst. Pitum Koonwar y. Jog Kishen Doss et al ... ••• 466
Musst. Rkdhi y. Blsheshur Bias • 294
Musst. Badyat y. Madhowjee P&n&chand 276, 660
Musst. B6j Koonwar y. Musst. Inderjeet Koonwar ... ... 1237
Musst. B^mdan y. Beharee Lall • 445
Musst. Butna Dobain y. Purladh Dobey ... 1176
Musst. Sabitrd Daee y. Suturjhun Sutputtee ... ... 1115,1220
Musst. Shibo Kooeree y. Joogun Singh 891, 969
liv LIST OP CASKS CITED.
Musst. Solukhn4 y. Ramdolal Pand^ ... 967, 968. 1115, 1158, 1175 Musst. Siibudra Chowdryn v. Golooknfifch Chowdree 903, 966, 1218 Musst. Suraj Mookhi Koouwar y. Musst. Bhagavati Koonwar 346 Musst. Tdrd Munee Dibia v. Dev Nardjan etal... 959, 1081, 1103,
1154., 1220
Musst. Tarinee v. B&mundoss Mookerjea 905, 1151
Musst. Thdkoor Dayhee v. B&i Balack Bam ... 98, 101, 106, 316,
335,527, 1068
Musst. Thdkorain ▼. Mohun Lall 960
Musst. Thukrain Sookrlj Koowar v. The Government 203
Musst. Tikdey v. Lalla Hureelal 1051, 1067
Musst. Tukroonissa Begum et al v. Musst. Mogul J&n Bebee. . 696
Musst. Umroot et al v. KulyandUss et al 489, 491, 497, 498
Muttam^l y. Yengalakshmi Ammil ... 471
Muttammal y. Ramakshy Amm^l et al 593
Mutta Vaduganddha Tevar y. Dorasingha Teyar 106, 150, 330, 335,
336, 431, 432, 719, 744 Muttayan Ghettiar y. Sangili Yira Pandia dliaa Siyagiri Za- mindar CMuttayanOhettiar's case) 81, 151, 159, 163. 169, 194, 207,
240, 293, 478, 628, 710, 714, 746, 749
Mntteeram Kowar y. Gopaul Sdhoo 99
Muttumdran y. Lakshmi 805
Mtlttiisvami Gauudane^a/ V. Subbiramaniya ... 836
MilttQswamy Jagavera Yettappa y. Yenkataswara Yettappa 83,
415, 582 MQttdsawmy Naidu y. Lutchmeedevumma 1022, 1028, 1073, 1081
Muttuyelayudu y. Parasakti ... ... ... 579
Mynd Boyee v. Ootar&m 4, 177, 383
N. Chandrasekharudu y. N. Brahmanna ... 919, 943, 1003, 1167
Nagabhushanam y. Seshamma Garu 945
N&galinga Mudali y. Subbiramaniya Mudali ... 657, 801, 804, 838 N4gdlutchmee Ummdl y. Gopoo Nddar&ja Chetty 181, 638, 1107
N&gdppd V. Subba 6&stri 919
N&gappd Nyair y. Mudundee Swora Nyair 681, 841
N&gardis y. The Conseryator of Forests 721
Naginbhdi Daydbhdi v. Abdulld bin Nasar 602, 722
Kahak Ghand y. Eim Ndrdyan 724
Nmh^lchand et al y. Magan Pit4mber 610
Nahdlchand y. B4i Shivd 91, 253, 414
Ndikin case («e6 Mattura Ndikin y. Esu Ndikin).
Nallappd Beddi y. BalammAl et al ... 672
Nam Nirdin Singh y. Ramoon Paurey 202, 204, 222
LIST OF CASES CITED. Iv
PAGB
N&n&bh&i Vallubdfiss v. N&th&bh&i Haribh&i 661,699, 765
N4n4ji V. Tukddim ... 816
N&na Nirdin Rdo v. Haree Panth Bhio et al 181, 667, 813
Nancband HansdLj v. Bapn Shaeb Rustarabh&i 786
Nand Kum4r (or Kuwar) et al v. lUdhd Kuari 96, 391
Ninhak Joti ▼. Jaimangal Chaubey (Nan Hale Joti*8 case) 618, 642,
707
Naoroji BeraTDJi v. Rogers ... 3
Ndr^n Kbootia v. Lokenitb Khootia 159, 398
Naraganti Achamraagdru v. Venkatacbalapati 70, 718, 719
Ndrdin Cbnnder Chuckerbutty V. Datardm Roy 179
Ndrdin Dhara v. Rakhal Gain 384, 426
Ndrdin Mai v. Kooer Ndr^in Mytee 1184
N£r&inee Debeh v. Harkishore Ri\ 979, 1181
Ndrdin Singh v. Pertum Singh 749
Narasammdl v. Balarto^bdrloo 365, 1028, 1032, 1146, 1155, 1163,
1164
Narasimbarow v. Ant&ji Vimpaksh 165
Ndrdyana Reddi v. Vardacbala Reddi ... 945
Ndrdyan Bdbajee v. Ndnd Manohar 151, 166, 702, 703, 910, 912,
952, 957, 969, 1005, 1010, 1076
Ndrdyan Babdji v. Pdndurang Mmchandra 701
Ndrdyan Bhdrtbi v. Laving Bhdrthi ... 83, 159, 375, 388, 559
Nddiyan Bhivrdv t. K^bi 717
Ndrayanacharyi v. Narso Krishna (Narayanachariya's case) 161,
167, 169, 358, 638, d44. 714, 747
Ndr&yan Desbpande v. An^ji Deshpande 708
K^rdyan Gop Habbu r. Pdndarang Ganu ... 615, 616, 638, 706
N£r4y8ii Govind v. Sarjidpa 845
N4rdyan Jivdji v. Andji Konerrdo 764
Ndr&yanr&o Ddmoder Dabholkar v. Bdlkrishna Mahddev Gadre 610,
638, 642, 664, 746
K4r4yan Rdmcbunder v. Loxmeebdee 907
Ndrdyanrdr Bdmcbundra v. Rdmdbdi 260, 261, 262, 763
Kdrdyanrdv Sudanand v. Chintdman ...175, 188, 197, 201, 557, 785
K&riyan Tondyek v. Bdlkrishnd Nardyan ... 665
Narbad&b&i v. Mah&dev N&r&yan ...79, 192, 194, 220, 254, 262, 263,
392, 653, 1169
Narbar Govind r. Ndrdyan Vithnl 956, 1009, 1010
Narbar Singb t. Dirgndtb Ecar 251, 252, 791
Narmadi t. Gtoesh N&rdyan Shet 592, 593
Ivi LIST OP OASES CITED.
PAGE
Naro Trimback v. Haribdi •• ... 780
Narotam Lalabhai v. Nanka Madhay 414
Narotam v. Ndnka 91
Narottam Jagjivan v. Narsandas 77, 139, 667, 813
Narsain (see Nursing N^rdin).
Nars^ppd Lingkpi y. Sakhirim 110, 449, 461, 465
Narsid&ss Jitr4cn v. Joglekar 791
Narsingh Bhut v. Chendpa Ningdpa 698, 631, 632, 787
Narsingh Khander^v v. Yddaordv •.. ... ... 264, 265
Narsinha Hegde v. Timmd ... ... 639
Ndra Pira v. Ndro Sideshvar ... 773
Nafcchiarammdl v. Gopal Krishnd 195, 236, 259
Ndtb£ Hari v. Jamni 95
Ndtbdji Krisbndji v. Hari J£goji 367, 929, 1057, 1065, 1109, 1150, 1176
Natba v. Mab^da 709
Natbubbdi Bb&ilal y. Jayber Baiji ... 91, 92, 253, 254, 414, 425
Natba ni Mabton y. Manr^j Mahton 608
Nayah'dm Atmardm y. Nandkisbor Sbiyndrdyan ... 331, 432
Nawdb Bai y. Bugawuttee Koowar 1053
Nawal Singb y. Bbagwda Singb 776
Nebdlo y. Kesben Lall 5dl
Neelkisto Deb Burmono y. Beercbunder Tbdkoor 2, 62, 70, 76, 159,'
601, 708, 724, 729, 737, 739, 870 Nellaikumam (or Nellaikumara) Ohetti y. Marakatbammal 315, 507 Nidboomoni Debya y. Saroda Perab^d ... 904, 1216, 1223, 1229
Nibalkban y. Hurcbam Lai 315
Nilcomul Laburi v. Jotendro Mobun Laburi ... 178, 368, 996, 1195
Ntlkant Obatterjee y. Pedri Moban Diss 161
Nilkant Ganesb y. SbivriLm Ndgesb 189
NUmlidbab Dis y. Bisswdmbbar his et al 374, 897, 903, 927, 1041,
1045, 1049, 1087, 1119, 1209, 1212, 1221 Nimaye Cburn Patteetandee y. Jogendro Ndtb Banerjee ... 201
NiruDJun Bbartbee y. Padarutb Bbartbee 554
Nissar Murtojdb y. Kowar Dbanwant Singb 83
Nitto Kallee Debee y. Obboy Gobind 1236
Nittyanund Gbose y. Kisben Dydl Gbose 1095, 1137
Nobincbunder et al y. Guru Persdd Doss 96
Nobin Obunder y. Issar Cbunder... ... ... ... ••• 89
Nobin Cbunder y. Jandrdhan Misser 3
Nobin Krisna Cbuckrayati y. Rdm Koomar Cbuckrayati ... 787
Nobkissen Mitter y. Harriscbunder Mitter 818
Nobkissen Rdj&'s case {see Y. Suyamuee y. Rdm&nya).
LIST OF CASES CITED. Ivii
PAGE
Noferdoss Roy y. Modhusoondari 96, 98
Nogender Chnnder Ghose v. Sreemutty Kaminee Dossee. 96, 168 Norender Ndrain Singh v. Dwdrkd Lai Mundun ... 611,615, 790
Nowla Ooma v. Bdid Dhurmdji 66^
Nubo Gopal Roy v. Sreemutty Amrit Moyee Dosee ... 262, 762 Nand Coomar Lall v. Moulvie Bazec-ood-din Hooseia 710, 712
Nnndkomar R^i y. Rajindernarden 1171, 1175
Nundram v. Kdshee Pdade 1041, 1043
Nandan Lall y. Lloyd 608
Nunkoo Sinj?h y. Parm Dhun Singh 1036,1228,1229
Narbberam Bh^eeddss y. Kripdram Anundrdm 351
Nnrbnr Sbamrao y. Yeshoddb^e ... 1186
Nursing y. Khooshdl 916
Nursing Ndrdiu or Narsain y. Bhutton Lall 435, 487, 894, 1028,
1030, 1053
0. Goorooya Batten y. C Narainsawmy 309, 607
Okhorab Soot y. Bheden Barianee 469
Omrit Koomari Dabee y. Luchee Nardin Chuckerbutty ... 494 Oojulmoney Dossee et al v. Sagormouey Dossee ... 100, 313
Oolagappa or Oolgapa Chetty v. Arbuthnot 161, 167, 194
Oomabai y. Sakatmal 1116
Ooman Dutt y. Kunhia Singh 894, 1025, 1067
Oomedchand y. Gungddhar 681, 848
Oomedrai y. Hiralal 614
Oonn&mala Awcby y. Mungalam 898
P. Bachiarju y. V. Venkatippadu 312, 448, 449, 465
P. Venkdtesaiya y. M. Venkat^ Chdrlu 929, 1062
Page y. Selfly 633
Palanivelappa Kaundan y. Mann&ru N4ikin et al 606
Panch Cowree Mundul y. Bhugobutty Dossia 1223
Pandaya y. PuliTelavcre/aZ 82,928
Pandurang y. Ndro or Naru 168, 192, 198, 631, 638
Panduiang BalUl y. Dhondo Ballal 1235
Pandurang Anandrav v. Bhdsker Sadashiv. 631. 66 if, 706, 707, 779
Pandurung Kamti y. Venkatoah Pai 706, 980
Pardsard Bhattar v. Rangaraya Bhattar 118
Parbati Churn Deb y. Ainud Deen 700
Parbhudas Rayaji y. Motirdm Kalyandas 172
Pareslimani Dosi y. Dinanath Das 577, 581
Pare Bebi v. Guddadhar Banerji 252
Parshotam Keshavd^s v. Kalyau Rayji -. ... 398
Parvati v. Bhiku , 691
Ivili LIST OF CASES CITED.
PAGE
Parvati Koar Balapd v. Kisansing bin Jaising ... 6S, 252, 345, 664,
734, 757
Paulien Valoo v. Paulien Debia ... 727
Pedda Ramdppa Nayanivaru v. Bangari Seshamma Naydnivaru
79, 340
Pemrdj Bhavdni^am v. Nardyan Shivrdm 685, 695
Penn ▼. Lord Baltimore 791
Periasiimi v. Periasdmi and the Bepresentatives of Salagai Tevar
158, 336, 457, 717, 740, 744, 1227
Perk&sh Clinnder Boy v. Dhunmonee Ddssea 1094
Pertabnaraiu v. Opindurn^rdin ' ^7
Pemmal Nayker v. Potteeammal 1044
Phukar Singh v. Ran jit Singh ■
Phulchand ▼. Luchmi Ghand
Phul Chand V. Mdn Singh ■
Phulcnnd Lall v. Rughoobun Subaye •
Phulman R^i y. Dim Kurai •
Piarey Lall v. Saliga
Pillari Setti Samudrala Nayuda ▼. R4m4 Lakshmana..
Pirthee Singh v. Ranee Rajkooer
Pitam Singh t. Ujagar Singh
Pokhndrdin v. Musst. Seesphool
Poli y. Narotnm Bapii et al
Ponambilath Parapravan Kunchamod Higee v.
Paraprayan Kuttiath Hajee
Ponnappa Pillai v. Pappuy^yyangdr. 77, 81, 82, 169, 207, 605, 625,
626, 627, 628, 637, 764
Ponusndmi Nadan y. Dorasami Ayyan 4
Poonjeeabhdee y. Prdnkoonwur 300
Pootnmall y. GooUm Rassool 967
Poshun Ram et al y. Bhowaneo Deen Sookool 610
Poysor y. Minors 630
Pragdds y. Harikishen 395, 691
Prdnjivran Daydram y. Bdi Revd 156, 176, 431, 745
Prdnjeevandas Toolseydas et al v. Dewcoorb4i et al 100, 312, 314,
327, 391, 777 Prankishen Paul Chowdry v. Mothooramohan Paul Chowdry 75,
78, 80, 143, 656 Pi-ankissen (or Pravmkissen) Mitter y. Sreemutty Rdmsoondry
|
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332 |
|
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«.• |
617 |
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617, |
657 |
|
,, |
..• |
101 |
|
,, |
• •• |
313 |
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.«• |
172 |
|
,, |
... |
1098 |
|
.260 |
,261, |
262 |
|
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612, |
616 |
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679 |
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en 656 |
Dossee
Prdukoonwar et al v. Deokoonwar Prdnndth Paurey y. Sri Mangala Debia
...663, 683, 684 79 741
LIST OP CASES CITED. Hx
PAGE
PHinn^th IUli v. R. Govind Chandra Bii 1150
Pranpatty Kooer v. L^lla Futteh Bahddur Singh 96
Pranvullubh v. Deokristen 1162, 1173
Prasaunamayi Dasi v. Kadambini Dasi ... -r. 1217
Pratiprdo Gujar v. Bijiji N^naji 177, 398
Preag Singh v. Ajoodja Singh 11S7
Premchand Pepara v. Hoolaschand Pepara 263
Premji Dayal v. Collector of Surab 1136
Prem Nardin Singh v. Parasrdm Singh 576
Pritima Soondaree Chowdrain v. Anund Coomar Chowdry. %3, 1138
Promotho Dossee v. Radhika Prasad Datt 203^ 668
Prosunno Koomari Debia v. Golab Chand Baboo... 160, 176, 201, 557
Prosanno Koomar Ghose v. Tarrackndth ... 1113
Prosanno Koomar Sein v. The Rev. B. F. X. Barboza... -. 791 Protap Chunder Roy v. S. Joymonee Dabee Chowdrain et al. 97, 100 Paddo Kum£ri Debi v. Jaggutkishore Acharjia 991, 1196, 1197
PudmaCoomariDebiv. The Court of Wards 1014, 1183, J200, 1206,
1219, 12S4 Panchanand Qjhab et al v. Lalsban Misser et ah ... .». 331
Paran Dai V . Jai !Nardin ... ... 39^
Puree Jan Katoom etaly. Bykunt Cbunder 686
Purmanand Bhutt^haraj v. Oomakunt 916, 967
Parshotam v. Mudakangavda ». ... 1188
Purshotam v. Ranchhod 312, .391
Parshotam Shenvi v. Vdsudev Shenvi 1168, 1172
Queen v. Marimuttu ^ 592
R. Bishen Perakh Ndrdin Singh v. Biwi Misser . ... ... 812
R. Nallatambi Ohetti v. R. M£kunda Chetti 710
R. Vassereddi Ramanandha Baula v. R. V. Jagganadha Bhahi 1122
R. V. Hanmanta 92
R. V. Kenny ^ ^ ... .^ .,. 92
R. T. Picton 6
SLkchipi V. Amingaodd ^, 845
Ridh^bai v. Chimnaji 393
Radhdbdi v. D^modar KrishnMv 1116, II75
Radhabdi V. Ganesh Tatya Gholap 223,1106
Radhabai v. Nanarao 76, 248, 346, 709, 724
R4dhab4i v. Raghoo 775
Radhd Bullub Gosbdin v. Kishen Govind Gossdin 696
R^hau Churn Doss v. Kripa Sindhu Doss 701
R^hi Govind v. Inglis (J96
Ridhi Jeeban Moostuffy v. Tdrfiir.onee Dossee 183, 20a
Ix LIST OF OASES OITED.
lUdMkissen v. Sreekissen 1226
Wdhd Kishen Man v. Bachhamdn 615
Ridhd Mohun Mundul v. Jddoomonee Dossee 200
Bidhd Pearee Dossee et al v. Doorgi Monee Dossia et al ... 499
Rddhd PrasWd Wasti v. Esuf 608, 615
Rddhdbdi kom Shrikrishnd v. Shdmrilo Viniyek 686
R^dhdkishen V. Bdjndrdin 445
Bidhdkishen v. Rajdh Edm Mandal et al 444
Radhdndth Doss v. Gisbome 8
Raghoo Govind Pardjpe v. Balwant Ararit 220
Raghoobanand Doss v. Sadhuchnrn Doss 372
Rdgbu bin Ambd y. Govind Bahirdo et al ... -. ... 607
Baghunath ▼. Pdndnrang 3(5
lUgrindrapa (or Ragvendrapa) v. Soobapa 699, 844
Rahi V. Govind ... 83, 90, 157, 164, 194, 263, 375, 384, 387, 582
Rahimabbai V. Hirbdi 157,159
Kaiji Manor v. Desai Kallianrdi 772
Rai Ndrdin Doss v. Nownit Lall f ... 621
Rai Sham Ballabh v. Prdnkishen Ghose 247, 755
Rdj Bahddur v. Bishen Daydl 597
R4j Ballubhsen y. Oomesh Chunder ... 96, 97
Raj Chunder Deb v. Sheoshoo Earn Deb 102
Raj Gobind Dey y. Rajessuree Dossee 491
Rajd Haimun ChuU Singh v. Koomer Gunshedm Singh ... 1093 Rdjd Lelanond Sing Bahddoor v. The Bengal Government 180,
204 Rdj Lukhee Debia v. Gokool Chandra Chowdhry 97,99, 101, 102,
104, 367 Rdjd Mitter Rdmdlingd Setupate y. Perianayayam Pillai ( Raroes-
wara Pagoda case) 557
Raj Mohun Gossdin y. Gour Mohun Gossdin 709
Rdja Parichat y. Zalim Singh 263, 379, 583
lUjd Pirthee Singh y. Rdni Rajkoover 767
Rijah Bishndth Singh v. Rdmchurn Mujmooddr 74 L
Rdjah Chandrandth Roy y. Kooer Gobindndth Roy 976
Rdjdh Chandrandth Roy y. Ramjai Mazumddr 607
Rdjdh of Coorg's case 3
Rdjdh Debendro Narain Roy y. Coomdr Chundemdth Roy ... 1177 Rdjdh Haimun Chull Singh v. Koomer Gunshedm Singh 959, 1000,
1093 Rdjah Leldnund Singh Bahddoor y. Thdkoor Munoorunjun Singh 204 Rijah Nilmoney Singh v. Bakraudth Singh 169, 173, 180, 184, 744, 846
LIST OP CASES CITED. Ixi
PAGE
Baj£h Nil money Singh Deo Bah4door y. Umdndth Mookerjee. 1233 Rijah Nagender NaHiin v. Raghon^th Narain Bey ... ... 4, 156
Rajah Nursing Deb v. Roy Koylasnath 184, 722
Rajdh Patblin Sing's case 757
Mjih (S^heb) Prahlad Sen v. Baboo Badhusing 695
Rajah Pedda Yencatapa ▼. Aroovdid Roodrdpa Naidoo ... 695
Bijah Ram Ndrain Singh v. Pertam Singh 77, 624
Rajah Ram Tewary et al v. Luchman Pershdd et al 657
Rajdh Saligrdm v. The Secretary of State 722, 739
Rajdh Soordnamy Venkdtapettyrao v. R. S. Rdmchandra ... 671 Rajah Shumshere Mull V. Ranee Dilrdj Konwar 959, 963, 1041, 1045 Rajah Surenni Laksbama Yenkdmd Row v. Rdjd S. Venkdta
Gopald Narasimha Row 682
Rdjah Surenni Yenkdta Gopila Narasimha Row v. Rajdh S.
Laksbama Yenkama Row 682, 691
Rajdh Udaya Aditya Deb v. Jadab Lai Aditya Deb ... 159, 739
Rajah Upendra Lall Boy v. Shrimati Rdni 912, 1041
Rajah valad Shevdppa ▼. Krishndbhat 398
Rajdh Vellanki Yenkdta Krishndrow v. Yenkdta Rama Lakshmi Nar- saya 941, 974, 975, 980, 982, 983, 986, 1002, 1004, 1013, 1178,
1207 Rajah Yenkata Ednnd Kdmmd Row v. Rdjah Rdjahgopal Appii Row
Bahddoor 764
Rdjah Yenkdta Narasimha Appd Row t. Rdjdh Ndrrdyan AppdRow
159, 184 Rajah Yurmah Yalia v. Ravi Yurmah Mutha 201, 557, 785, 818
Rajah Woodoyaditto Deb v. Mukoond Narain 264
Rdjardm v. Luchman 608, 616
Raje Vyankatrao v. Jayavantrdo Randdev 366, 929, 1017, 1043,
1054, 1057, 1167, 1171, 1176 Rdjender Dutt v. Sham Chunder Mitter... 177, 179, 182, 196, 205
Rajender Nardin v. Bijd Govind Singh 777
Rdjendro Nardin Lahoree v. Saroda Soondaree Dabee 864, 902,
905, 947, 961, 1085, 1146
Rajendrondth Dutt y. Shekh Mahomed Lai 160, 185
Rajendrondth Holdar v. Jogendro Ndbh... 1094, 1095, 1096, 1226
Rajkishen Singh v. Rdmjoy Surma 157, 158, 741
Rajkishore t. Qx)vind Chunder JQ
Rajkumar Nobodip Chundro Deb Barmun v. Rdjdh Bir Ohundra
Manikya 90,737,1125
Rdjkoomaree Dassee v. Golabee Dasseo 691
Rajkristo Roy v. Kishoree Mohan 1112, 1176, 1217
Ixii LIST OP CASES OITED.
PAGE
Bajoneekant Mitter v. Premchund Bose 687
Rakhmdbai v. Baydjee 683
RakJimdbdi v. Radhabdi 264, 902, 975, 977, 980, 986, 987, 1004, 1005,
1008, 1011, 1057
Rakhmdji v. Tatia Ranuji 700, 764
Rimd Gopal v. Pilo 790
Eimabdi v. Ganesh Dhonddev Joshi ... 254, 259, 261, 302, 762
Rdmabdi v. Jogan Soorybhan et al 684, 699
Ramabai v. Trimbak Gaaesh Desai 254, 593
Rdmdji Huree v. Thukoo Baee 68
Rdmalakshmi Ammal v. Sivdadntha Peramal Sebhurayar 2, 69,
78, 156, 870 Rdmdlinga Filial v. Sadasiva Pillai ...950, 1028, 1037, 1097, 1222
Rdmdppa Naickea v. Sithamal 231, 359, 653, 678, 793
Ramanamall v. Saban Annavi 976, 1022
Rdmdsami v. Ramisdmi 681
Rimasilshien v. Akyalandumal 1003
Bamasawmi Aiyan v. Vencabaramaiyan 187, 1105, 1108, 1109, 1157,
1177, 1178
Ramasdmi Padeiyabchi v. Yirasdmi Padeiydtchi 91
Ramasheshaiya Panday y. Bhagavab Panday 726
mma SabbayaDna's case. {See Appovier's case.)
Bdmavagavda v. Shivdji ... 1029
Rdrabhab v. The CoUecbor of Poona 698
Rdmbhab v. Rdmchandra 1231
Rdmbhab v. Lakshman Chinbdman Mdyalay 220, 221, 367, 441, 583, 603, 606, 641, 642, 649, 803, 943, 1111, 1149, 1230
Rdmchandra v. B4pu Khandu 965, 969, 978
Bimchandra et al v. Ldlsbd 746
BAmchandra v. Rddhdbdi 1219
Bimchandra D. Ndik v. Ddd4 M. Ndik 246, 639, 651
Rdmchandracharya v. Shridharachdrya 1192
Ramchandra Dtkshib v. S4vibribai ... 80, 82, 259, 756, 763, 791,
854 Rdmchandra Dubb v. Ohunder Coomar Mundal ... 675,688
Ramchandra Govind v. Ydmanji 696
Bimchandra and Lakshuman y. Baoji Sakhardm 642
Rdmchandra Narayan v. Krishnaji Moreshwar 1219
R^mchandrarao Ndrdyan Manbri v. Venkabrao Madhaya Manbri
179, 180, 698, 745
R4mchander Nursew v. Krishndji , 846
Ramachandra Poy v. Luxoomy Boyee 762
LIST OF OASES CITED. Ixiii
PAGE
Bimchandra SakhiLrdm Y&gh v. Sakh^r^m Gopdl V^h 173, 180,
660, 742, 793
Bimchandra Saddshew v. Bag^ji Bachaji 607
Rimchaudra Tdntra D6s ▼. Dharma N^rayan ChuckeTbatty...98, 314
Bimchandra Vdsudev v. Ndndji Timaji 956, 1011
Bimchandra Yishnu ▼. Sagunbii 261,762
BimCoomar Pal T. Jogendranith Pil 742
Rim Dhone Bhattacharjee ▼. Ishanee Dabee 867
Rimdhan Sein et al ▼. Kishenknith Sein et al 445
Rim Doss v. Mohesar Deb Missree 203
Bimgonga Deo v. Doorgi Munee Jobrij ... 157
Bimguttee Achirjee v. Kristo Soonduree Debia 668, 1110, 1158, 1233
Bimien y. Condammal 233
Bimjeo Hurree v. Thnkoo Biee ., 1183
Ramji valad Narayan y. Ghamia kom Jiviji 369, 957, 959, 968, 970, 971, 973, 974, 975, 977, 982, 990, 1000, 1001, 1003, 1004, 1005
Bim Kinnye G<>ssimee ▼. Meemomoyee Dossee ', 1179
Bimkeshore Nariia Singh y. Anand Misser 638
Rimkishen Singh y. Oheet Bannoo , 98
Bimkishen Surkheyl y. Masst. Sri Matee Dibea ... ... 1171
Rim Koonwar y. Ummar et al 761
Rimkrishna Moreshwar y. Shiyrim Dinkar 1117
Bam KuUee Koer y. The Court of Wards 262, 762
Rim Lil Mookerjee y. The Secretary of State for India 180, 184,
217, 221, 229, 6/0 Bimlal Thdkarsidiss y Lackshmichand Munirim et al 80, 612,
617, 635, 638 Rimnad case. {See Collector of Madura y. Mulu Ramalinga.) Rim Nirrayan Lill y. Bhowanee Pershid (Rim Narriin*s case)
169, 616, 708, 747
Bim Niriin Sing y. Ramoon Paurey 441
Rimnith y. Durgi 591
Bimphul Singh y. Deg Niriin Singh 617,618
Bim Pershid Niriin y. The Court of Wards 676
Bimprasid Tewarry v. Sheochurn Doss 74, 108, 144, 196. 457, 666
Bimsebuk v. Bimlil Knndoo 608, 615
Bim Seyak Das v. Baghabir 707
Bim Seyak Roy y. Sheo Gobind Sahoo 323
Rim Soondar Roy ▼. Rim Sihaya Bhugut 581
Rim Soondri Debee v. Rimdhun Bhuttichirjee 755
Bim Soonder Singh y. Surbinee Dossee ... 945, 981, 1166, 1207 Rim Surun Doss y. Musst. Prinkoer ^ ... 1115, 1156
Ixiv LIST OP CASES CITED.
PAGB
Bim Swdruth Pdndey et al v. Baboo Basdeo Singh • 445
Rim Tuhul Singh v. Biseswar Lall Sdhoo 787
Bine v. Bane 697
Binee Bhuwanee Dibeh v. Riineo Soomj Munee 1171
Biinee Bistoopria Putmddaye y. Nund DhuU 1232
R4nee Kishen ▼. Baj Oodwont Singh ... 1057, 1160, 1167, 1176
Rinee Kishtomonee Debea v. R^jd Anondndth Roy 1122
Rdnee Munmoheenee ▼. Jaindrdin 1122
Bdnee Nitraddye v. BhoUndth Doss 1065
Banee Rajessuree Koonwar v. Mahdrdnee Indurjeet Koonwar. 1226
Bdnee Roop Koour ▼. Rdnee Bishen Koour 1153
Rduees Bdtbore y. Q. Khosdl Sing 968
Ranganmani Ddsi v. Kdsindth Datt 763
Bangapd v Madydpa et al 605
Rango Mairdl v. Chinto Ganesh et dL 702, 837
Bango Yendyek v. Yamundbai 256, 757
Bangrdv Subrdv v. Venkabrdv Vithalrdv , 764
Rangubdi v. Bhdgirthibdi 910, 957, 1010, 1077, 1100, 1112, 1119
Rdni * Anund Kunwar v. The Court of Wards ...97, 498, 1226
Bdni Pudmdvati v. B. Doolar Sing ei al 3, 128, 8i2
Rdni Srimuti Debea y. Bdny Koond Luta et al 3
Rdo Karun Singh y. Nawdb Mahomed Fyz AUi Khdn ... 301
Bdo Kasan Singh y. Bdjd Bdkar Ali Khdn 7(n
Bdo Muni Dibiah y. Prdu Kishen Dds 1231
Ratnam y. Govindardjulu 169, 611
Ratnasabhu Chetti y. Ponappa Ghetti 499
Ravi Varma v. Komdn 606, 628
Rdvji Jandrdhan y. Gangddhar Bhab 613, 635, 750
Rdwut Urjun Singh v. Rdwub Ghanasiam Singh 166, 736, 740, 868
Rdyan Krishndmachdriydr y. Kuppannayengar 1164, 1167
Bdyapparaz (D.) v. Mallapndi Rdyudu 92
Rdzdbdi or Rdjdbdi y. Sddu Bhavdni 264, 653
Re Drake 629
Re Gunput Ndrdin Singh 1090
Re Kahdndds Ndrandds 1, 3, 4, 6, 8, 206, 1105, 1154
Re Oodoychurn Mitter 1232
Re Pitdraber Girdhar 668
Re Smart 159
Re Tann • ... 841
Re Tyler 629
* Rdni is sometimes spelled Rany, abbreviated '•By." See under the latter word.
LIST OF OASES OITED. Izv
FiOB
Reasnfc Hossein y. Chorwar Singh ... 608, 615
Reg. ▼. B4i RAp& 593
Reg. y. Bertrand • ... 882
Reg. y. Ddhee 423
Reg. y. Duncan 882
Reg. y. Karsan Qtoji 90
Beg. y. Marimattn ... 592
R^. y. Mayor of Tewkesbury 1226
Reg. y. Ndbhd Kaly&u et al 92, 297
Beg. y. Sambhu Bigha 90, 159, 424
BewanaPershdd y. Masst. Bddhd Bebee 68, 666, 682, 688, 690, 698,
702, 842, 843
Ridhakama v. Lakhmichand ei al 769
Rijkristo Roy y. Eishoree Mohan Mojoomdar 1234
Rimington y. Hartley 675
Rindamma y. Yenkata Ramappa 89, 103
Robinson v. Hoffman ... 610
Rooder Chunder y. Sumbhoo Ohunder 89, 96
Roopchund y. Phoolchund 128, 682
Roopcham Mohapater y. Anundlal Khan 115, 488
Roopmonjooree y. Rdmlall Sircar 1094, 1186, 1223
Rowlands y. Eyans 678
Radra N&rdin Singh y. Bdp Knar 312
Rojjomoney Dossee y. Shibohonder Mallick 757
Rakha B&i y. Gonda B4i 762
Rumea y. Bhdgee 103, 588
Rungama y. Atchama 167, 198, 631, 640, 916, 917, 941, 944, 945, 954, 1020, 1039, 1100, 1166, 1168, 1172, 1222, 1227, 1229
Bonganaigam y. Namaseyoya Pillai 1034
Banjeet Bdm y. Mahomed Waris 102
Banjeet Singh y. Kooer Gujrdj Singh 697
Bunjeet Singh y. Obhye N&rdin Singh 1022
RQpchand Hindamal y. Rakhm&b&i 975, 982, 983, 985, 992, 1008
Rnssik Lall Bhanj et al y. Purash Mannee 156, 392
Ratchepathy Dutt ei al y. Rajunder Ndrriin R^ et al ... 8, 118
Ratoo bin Bapooji y. P&ndoorangacharya 1170
Battnnohand y. Ghol&man Ebdn 826
Rayee Bhadr y. Roopshankar Shonkarjee et al 232, 690, 693,
786, 829, 938, 1153, 1154, 1173
Ry. * Brohrao Moyee y. R. Anand Lall Boy 980
Ry. Nitradaye y. BhoUnllth Doss 1065
* Bee aboye R&ni.
Ixvi LIST OP CASES CITED.
PAOX
By Seragamy Nacbiar v. Heraniah Gurbah 958, 961, 968, 1054,
1066, 1090, 1220
S. B. Shringdrpure v. S. B. Pethe ... 686
8. M. Ramganmani D^si v. Kdssinllth Datt 609
S. M. Sarroda Dossee v. Tin Cowry Nandy 964
S4baji Savant v. Vithsavant 791
8abo Bewa v. Nabagun Haiti 1095
Sabrabmaniya Mudali v. ParTati Ammal 1172
Sadibart Prasftd Sabu v. Foolbdsb Koer ... 168, 605, 708, 750
Saddsbiv Bbdsker y. Dbdknbai .• ... 747
Sadasbiv Dinkar v. Dinkar Ndrdyan 161, 494
Saddsbiv Laksbman Lalit v. Jayantibdi ... 741
Saddsbiv Moresbwar v. Hari Moresbwar ..• 1065, 1098, 1223
Sadn V. Baiza and Genu ^ . 377, 383, 602
Sakb^rdm v. Jdnkib^i 99
Sakbardm v. Sitdrdm 468
Sakbdrdm Bbargao v. Rdmcbandrdm Bb^kar 677
Sakbdrdm Mdbdav Ddnge v. Hari Krbbnd Ddnge ... 606, 684, 842 -
Sakbddim Rdmcbandra y. M^dbavrdw 161
Sakbdrdm Saddsbiv Adbikdri t. SitiiWii ...112, 131, 451, 458, 464, 645
Sakbo Ndrdyan v. Ndr^yan Bhikbdji ... 693
Sakvarbii v. Bbavdni Rdje Gbdtge Zanjarrdv Dosbmukh 79, 80,
238, 762
Sain V. Hari 164, 194, 381, 432
Salu et al v. Temaji 701
Salur Zaminddr v. Pedda Pakir Raju 264
Sdmalbbdi Natbnbb&i y. Somesbvar Mangal Hnrkissan 340, 598,
635. 638, 750
S&mat y. Amra 125
Samatsang ▼. Sbiyasangji and Edmasangji 674,685,694
Sammantlia Pandara y. Sellappa Cbetti 201, 202, 567, 568
Samy Josyen y. Eamien 1212
Sanganbusapa v. Sangapa 745
Sangapa V. Sanganbasapa 772
Sangili Virapandia Cbinnatbambiar v, Alwar Ayyangar ... 161
Sarasnti y. Mannu 380, 381
Saravan T^van v. Muttayi Ammdl 161, 169, 611, 620
Sarnsyatee Bdee y. Kesow Bbut 762
Sarkies v. Prosonomoyee Dossee 4, 6
Satra Kbumaji et ai v. Tdtid Hanmantrdo 367, 1184
Satyabbdmdbdi v. Laksbman Bamcbandra 761
Sdvitriavd v. Auandr&o 264, 743
LIST OF OASES CtTED. Ixvii
PiOB
86vitriWi ▼. LnxmiWi (LuxmiWi'a case) 236, 244, 267, 768, 759,
760, 761, 793
Saydji v. Bdmji „ ... 695
Sayimiil^ Ihitt ▼. Sondamini Ddsi 964, 998, 1096
Sayi kom Ndru Powdr v. Shrinivasrdo Pandit 843
Secretary of State for India ▼. Khemchand Jeychand 776
Seet£r^m v. Juggobnndoo Bose 1234
Seetidun aliae Kerra Heerah y. Musst. Aheeree Heeranee 90, 187
Seetnl Pershdd y. Muset. Doolhin Badam Konwnr 96
Seith Grobin Dass y. Banchore 264
Sengamalathammal y. Yalaynda Mndali 432
Sevachetambara Pillay y. Parasncty 1202
Sham Chunder v. Mriyani Dibeh ... 946, 979, 980, 1192, 1197
Sham Knar y. Gaya Din 1180,1198
Sham Ndr^in y. The Oonrt of Wards 685^
Sham Nardin Singh y. Baghoo bin Dial 638
Shama Soondari et al y. Jumoona 96
Shama Soonduri y. Surut Chunder Datt 96,100
Shanker S&hdi (widow of) y. Bdjd Kashi Persh&d 834
Shebo Sundari D^si y. Kali Chum Bdv 687
Sheet&n&th Mookerjee y. Promothondth Mookerjee ... ••• 1232
Shen Sulrae Singh y. Balwunt Singh .»« 445
Sheo Dyal Tewaree y. Judoondth Teware .»• 683
Sheo Nundun Singh y. Musst. Ghnnsama Kooeree ... 673, 674
Sheo Pershdd Singh V. Leelah Singh 633
Sheo Pershdd Singh v. Musst. Sooijbnnsee Kooer 749
Sheo Buttnn Koonwar y. Gour Beharee Bhurkut 813
Sheo Sehai Singh etal v. Musst. Omed Koonwar ... 330, 499 Sheo Singh Rai v. Musst. Dakho ... 167, 901, 973, 1031, 1166, 1176 Sheo Sohai Misser v. Musst. Billasee ... ^, ,., ... 1189
Sheo Soondary v. Pertha Singh 76i 76^ 457, 740
Sheoji Devkam ?. Elasturibdi 840
Sheo Manog Singh y. Bdm Prakdsh Singh ... ,^ ... 1226
Sheshapa y. Igapa bin Surapa 689, 690, 855
Sheshigiri Shanbhog y. Gungoli Abboo Saiba ..* 746
Shib Dayee y. Doorga Pershdd , 709,765
Shib Ndrdin Bose y. Rdm Nidhee Bose et al 693, 829
Shib Suhaye Singh y. Nursing Lall ^. 661
Shiddeshyar y. Rdmohandrardo ... 868
Shidhojirdy y. Ndikojirdv 264, 694, 697, 743
Shidrdmapa Bdlapa y. Shesho Jandrdhan 637
Shiyagayda y. Dharangavda 772
Isyiii usT of oases cited.
FAGV
Shiyagunga case {see Katama Natchear v. The B^jih of Shi- vagunga).
Shiyr&m v. N4rdyan • • 605
Shiva Sundari Dasi's case ^ 757
Shivji H&sam v. Datta M&vji Khojd 157, 673, 674
Shoodjan v. Mohun Pandaj 119
Shookhmoy Chuuder Dass v. Monohari Dassi 184, 230
Shoshi Shikhuressar Roy y.Tarokessar Roy 182
8hoshin4th Ghose V. Krishna Soondaree Dasi 1135
Shrintv&s Ayyangdr v. Kuppan Ayyangdr 365
Shnniv&s Ayyangdr v. Reugasami Ayyang&r 494
Shr!ntv&8 Tiraajee v. Chintiman Shivaji 1028, 1031
Shripafc ▼. Rddhdbdi ... 593
Shurno Moyee Dossee v. Gk)pal Lall Dass 260
Sia Dasi v. Gur Sahai 97, 778
Sibbosoonderey Dabia v. Bussoomutty Dabia 653, 677t 780
Sibta («e« Sitdbii) 327,445
Sidalingappa v. Sidava (or Shidalingappa v. Shidava) 425, 593
Siddheshvar t. Rdmchandrardo ... » 1175
Sidesury Dossee v. Doorga Churn Sett ...917, 1121, 1139, 1211, 1222
Sidney v. Sidney 260
Simmani Amm^l v. Miittammil 105, 106, 107, 151, 330
Singamma v. Vinjamari Yenkatacharla 910, 925
Sirdar Sainey v. Piran Singh 677
Sitdbai (or Sibta) v. Badri Prasdd 327, 445
Sital V, Madho 209. 211
Sitdrdmbhat v. Sitdrdm Ganesh 398, 785, 818
Sitdram Chandrasheker ▼. Sitdrdm Abdji 606, 706
Sitdrdm Govind v. The Collector of Tanna 772
Sitdrdm Ydsudev v. Khanderdo ..• 697
Siva Bhagiam v. Palani Padidchi 617
SLvanananja Peramal y. Mutta Edmdlinga 293
Sivasankara Mudali y. Paryati Anni 625
Skinner y. Orde 90
Sobhdrdm y. Sumbhoordm 846
Sobhdgchand y. Khupchand Bhdichand 190,695
Somangouddy. Bharmangoudd 695, 786
Somasekhdra Rdjd y. Subhadrdmdji 909, 916, 975, 997, 1031. 1042,
1079, 1089 Sonatun Bysack y. Sreemutty Juggutsoondreo Dossee 181, 315,
667, 694 Sooburnomonee Debia y. Petumber Dobey 1002
LIST OF CASES OITBD. IxiX
PA6B
Sookhlal ▼. MuBst. Raheema 396
Soondar Koomaree v. G. Pershid Tewarree 1181
Soorendrondth Roy y. Musst. Heerimonee Burmoniah 2, 62,
167, 741, 743
SoorjamoDee Debee ▼. Suddnand Mohapatteer... 723
Sooijoo Persh^ et ci y. R. Krishan Pertib ... 322
Soorodhannee Debea y. Doorga Pershad Roy 959
Soudaminey DoBsee v. Jogesh Chunder Dutfc 182, 224, 670, 678, 756 Sree Brijbhookanjee Mdhdraj y. Sree Gokooloots^ojee M^hdrdj, 865, 919, 929,951,956, 1006, 1006,1010, 1011, 1019, 1021, 1064, 1224
Sree Cheytania Ananga Deo y. Parsardm Deo 793
Sreekaunth (B) Deybee y. Sahib Perlhad Sein 118
Sreemotty Deeno Moyee Dossee y. Doorga Pershdd Mitter,
904, 1012, 1168, 1186, 1230
Sreematty Dossee y. Tdrdchani Ooondoo 967
Sreemutty JadomoneyDabee y. Saradaprosono Mookerjee 97, 313, 1217 Sreematty Joymony Dossee y. Sreemutty Sibosoondry Dos- see 1041, 1045, 1060, 1064, 1089, 1134
Sreematty Mat tee Berjessory Dossee y. Rdmconny Datt. ... 301 Sreemutty Nistarini Dossee y. Mokhun Lall Dutt et al.„ 756, 826 Sreemutty Nittokissore Dossee y. Jogendrondth Mullick 262, 761, 762
Sreemutty Pabitra Dasi y. Ddmudar Jana 964
Sreemutty Puddo Monee Dossee y. Dwarkdndth Biswds ... 316 Sreematty Rabutty Dossee y. Sibch under Mullick ... 183, 184, 781 Sreemutty Rajcoomari Dosee v. Nobcoomar Mullick ... 938, 1155 Sreemutty Soorjeemoney Dossee v. Denobunde Mullick 178, 179,
180, 183, 229, 315, 667, 668, 764
Sreemutty Sreemutty y. Lukhee Ndrdiu Dutt 611
Sree NdHlin Hitter y. Sreemutty Kishen Soondory Dossee
1130, 1137, 1139, 1216
Sreendrdin Rdi y. Bhya Jhd 470,1016,1167,1210
Sreendtb Dutt et al y. Nand Kissore Bose 778
Sreeneyassien y. Sashyummal 1063
Sreedim Buttacharjee et al y. Puddomokhee Debea 762
Sreerdm Ghose y. Sreendth Dutt Chowdrey 693
Sri Gajapathi Radhik v. Sri Gajapathi Nilamani 263
Sri Virddd Pratdpa Raghunddd y. Sri Brozo • Kishoro Patta Deo... 91, 232, 233, 236, 904, 943, 947, 959, 960, 982, 983, 986,
990, 994, 996, 1002, 1004, 1192, 1221 Srimati Bhagabati Dasi y. Kanailal Mitter et al ... 80, 262, 767 firimati Uma Devi (or Deyi) y. Qokuldnand Dds Mahdpatra 106,
443, 887, 913, 1067
IXX LIST OF OASflS OITEDJ
FAQl
Sriniith Gangopadhja v. Mahes Chandra Roy ••• ••'• ••• 1237 Srin^th Gkmgopadhya et al ▼. Sarbamangala Debi ••• ... 325
8rin^th Serma V. lUdhikaant 1171,1209
Srinivasa Ayyang^r ▼. Kappan Ayyangdr 1164,1167
Srinirasa Nayuda 7. Tellaya Nayudu 628
Srinivasammal v. Yijayammal 756
Sripatti Chinna Sanydsi Baza y, Sripatti S. Raza 707
Sri B4jd Bdo Yenkata Mdh&pati v. Mahipati Sariah lUo ... 315
Sririlmala v. lUmayya 887, 1028, 1034
Srimatta Mattu Yizia Raganada Rdni y. Dorasinga Tevar ... 106 Sbree BAJdh Y. Yenkayamah v. S. B. Y. Boochia Yankondora
740
Subba N^iken v. Tangaparoomal 841
Sabbaluvammal y. Ammakutt»i Ammal 894,896,930
Sabbaiya (K.) y. K. Bdjesyara ... 697
Sabbaraya Gurakal y. Chellappa Madali 185
Sabedir Hassein Sbakhan Sayedsha Khdn's case 204
Sabhdbhat y. Ydsadevbhat 1228
Snbramaniyayyaii y, Sabramaniyayyan 626
Subsoondaree Dossee y. Kisto Kisore Neoghy 260
Sad^aand Mohapattur y. Bonomallee Dos et al 723, 1153, 1168, 1173 Saddnand Mohapattar y. Soorjamonee Debee ... 723, 1167, 1227
Samboochunder Chowdry y. Ndrdini Dibeh 1192, 1193
Samman Jha et al y. Bhoopat Jha et al 830
Samran Singh y. Khedan Singh 778
Samran Th^koor y. Chander Man Misser 776
8ogan Cband y. Gopalgir 554, 572
Snk&rdoi y. Rdmdds 848
Sukdrdm Goyind y. Shreenewas Bow 845, 846
Sakhbasi Lai y. Guman Singh ... 1203
Sangippd y. Sdhebdnna 610
Sangrdm Singh y. Pebee Dutt 552
Suraj Bunsi Koer y. Sheo Prasad Singh 65, 77, 161, 162, 167, 168, 192, 193, 604, 606, 607, 609, 611, 620. 622, 623, 624, 625, 632, 637, 640, 650, 651, 657, 660, 664, 671, 708, 721, 746, 748,
768, 842, 882
Sarbo Mangola Dabee y. Mohendrondth 668
Sarendra N^th Roy y. Hiramani Barmani 870
Surjokant Nandi y. Mohesh Chander Dutt Mojoomdar ... 1199 Satroogan Satpatty y. Sabitra Dye 956, 959, 1092, 1118, 1138,
1139, 1142, 1220, 1224 Sy&miHlyiich6rya y. The Heirs of Moodgalachdrya et al... 697, 701
LIST OF CASES CITED. Izxi
PAOB
ST&mij&r Pillai y. Chokkalingam Pillai 674
Sy {see Sreematty, Srimati.)
Syed Ali Sdheb v. Sri R. S. Peddabali Gara Simhnlu 154
Syed Imdm Momtazooddeen Mahomed v. Bajkum&r Ghose ... 790 Syed Mahomed Isaack Mnshyack v. Azeezoonnissa Begnm ... 775 Syed TufPuzzool Hoosein Kbdn v. Rughoondth Pershdd 621, 705
T. M. M. Ndrrdina Knmboodripdd v. P. M. TrWicrama Nam-
boodripdd •• 1164
Tagore t. Tagore {see Jnttendro Mohuo Tagore v.)-
Taikom Devji v. khk 672
Talemand Singh y. Bnkmina 77, 79, 252, 345, 734
Tiadayardya (or Tandaraya) Madali y. Valli Ammdl ..• 610, 634, 637
Taiijore Raja's case '-. 1041, 1061
Tdrd Chand v. Reebram 182, 216, 223
Tarachand Pircband y. Lakshman Bhaydni ... 176, 190. 604, 686 Taruck or Tamek Chunder Poddar et al y. Jodeshur Chunder
JCondoo ■ 724
Tdra Mohun Bhuttacharjee y. Kripa Moyee Debia 1190, 1192, 1196
Tiri Munee y. Deb Ndrayan Mi 1103, 1220
T4rini Oharan y. Saroda Sundari Dassi ...972, 1078, 1223, 1236, 1237
T&rinee Chnm Gangooly etal y. Watson & Co. 96
Tayammaul y. Sashachalla Kiiker. ... 949, 1089, 1093, 1099, 1227
Taylor y. Horde 191
Teelok Chundur Rdee y. Cyan Chundur Rdee ... ... 1092
Teencowree Chatterjee y. Dinindth Banerjee 472, 1120, 1167,
1175, 1180, 1182, 1198 Tekaet Doorga Pershdd Singh v. Tekaetnee Doorga Kooere... 740 Thakoo Bdee Bhide y. B4md Bdee Bhide 83, 824, 864, 957, 971,
975, 988, 989, 993, 998, 1000, 1005 Thakoorani Sahiba v. Mohun Lall 130, 468,487, 489, 494, 677, 871. 1030
Thikur Durrido Singh v. Thdkor Davi Singh 663
Thdkar Jibndth Singh v. The Court of Wards 118, 124, 487, 492, 1053 Thikur Oomr^ Singh v, Tha Mdhtdb Koonwar 959, 1054, 1115,
1123, 1134, 1228 Thakurani Rdmdnund Koer ▼. Thakurani Baghundth Koer 103, 203
Thomson ▼. Eastwood 1227
Tilackchand y. Jitamal 613
Timama kom Timapa V. Amchimani Parmaya 682
Timangayda y. Bangangavda 159,184,202,743
Umappi Bhat y. Parameshriammd 235, 236, 768
llmmi Beddy ▼. Achamma 683, 699, 702
Tipperah case {see Nilkisto Deb Bnrmono ▼. Beerchunder).
Ixxii I'IST OP CASES OITBD.
PAGE
Tirbegnee Doobey ei al v. Jatta Shunker ei al 81S
Tirumamagal v Bdmasvami ... 155
Todd V. P. P. Kunhamad Hajee , 285
Toolooviya Shetty v. Coraga Shellaty 106S
Totava et al v. Irapa 459
Trimbak v. Gopal Shet 611, 635
Trimbak Bdji Joshi v. Ndiiyan Vindyak Joshi 1011, 1167
Trimbak Biwi v. Nardyan Bdw^ 201
Trimbak Dixit v. Ndrdyan Dixit 662, 700
Tuk^rdm v. Gun^jee 92
Tukdrdm v. Rdmchandra 664
Tuljdrdm Mordrji v. Mathurdddss Dayarim 77, 110, 139, 160, 336.
470, 499 TJdivim Sitdram v. Rdnn Pdnduji ot al 76, 161, 162, 167, 248, 509. 586. 698, 606, 613, 631, 632, 664, 705, 706, 707, 716, 996, 1162, 1174
Uddrdm v. Sonkdbdi ... 256. 758
Ujamsi v. Bii Saraj ••• 688
Ujjal Mani Ddsi v. Jaygopal • 755
Ukd Bhagv^a v. Bii Hetd 91
TTkoor Doss v. Chunder Sekhur Doss 175, 185, 741
Uma Sankar Moitro v. Kali Komul Mozumdar... 1145, 1166, 1199
Um&bdi V. Bhava Padmanji •• • ... 155
Umapd Kantapd v. Ningosd Hirdsd 781
Umaid Bab^dur v. Udoi Chand 494, 498
Umasunduri Dabee v. Soarobinee Dabee 94, 392, 1012, 1174
■ Umbika Churn Shet v. Bhuggobutty Churn Shet 694
XJmbika Prosdd Tee wary v. Rdm Sahay Lall 616, 620
Timed Kika v; Nagindds Narotamdds 1090
XJmidshankar v. B^i Ratan 702
Umrithndth Chowdry ▼. Gowreendth Chowdry et al 723
Umroot V. Kulydnd^s 497
Upoorootrdm Byrdgee v. Ndrdyandds Euseekdds ... 102, 747
Unnoda Soondary Dossee v. Oodhubnnth Roy 748
Upendra Mohan Tagore et al v. Thanda Dasi et al 484
Upooroop Tewary v. Lalla Bandhjee Sahay ... 603, 617, 620, 760 Utpat case {see Bhdu Ndn&ji XJtpat v.)*
T. Singamma y. Ramanuja Charlu Nobkissen Raja's case) 1086,
1130. 1131, 1134
Yainder Bhat V. Yenkatesh 700
Yallabhr&m v. Bii Harigangd 155
Valu V. Gungd 592
y&man lUmchandra v. Dhondibi Erishn&j 704
LIST OF CASES CITED. Ixxiii
PAGE
Varjivan v. Ghelji Gokaldds 97
Visudeo V . Vamnaji 599
Vasudeo Anant v. Rimknshnd 956
VisudeFa Bhatlu y. Narasamma 68t>
Vasudev Bhat v. Venkatesh Sunbhav 196, 219, 603, 605, 632, 664, 708
Vasadev Hari v. Tdtid Ndiiyan 696
Vasudev Saddsbiv Modak v. The Collector of Ratu^giri ... 172
Vedavalli v. Narayana 78, 601, 690
VeerapermalPillay v. Narrain Pillay. 958, 959, 965, 976. 1040, 1049,
1057, 1060, 1061, 1073, 1080, 1015, 1118, 1171
Veliyammal v. Katha 207, 637
Veucatachellam v. Venkatasamy 1144
Vencata Soobamal v. Yencurnal 1177
Yenkangavda v. Jakangavda 1095
Venkapa V, Holyawa 454,482
Venka Reddi V. G. Soobba Reddi 953
Venkata Krishna Rao v. Venkatrama Laksbmi ... 129
Venkatachalam Chetti v Andiappan Ambalam 696
Venkatacbella v. Thathammal 293
Venkata Gopala Narasimlia Row v. R. S. Lakshama Venkama
Row 682
Venkataninial v. Andyappa 1180
Venkata Rama Rdo v. Venkata Surya Rdo 301, 309, 316, 333, 777
Venkataramayyan v. Venkatasubramania 706
Venkatesh e^aZ V. Ganapaya 662, 7<'9
Venkatesh Narayan Pai v. Krishnaji Arjun 81
Venkateswara lyan v. Shekhari Varma 185
Vonkatrimana V. Bramana 718
Venkatrama's case (see Venkata R^ma Rao v. Venkata Surya Rao).
Venkatratnama v. Ramanujasami 34;^
Venkopadbyaya v. Kavari Hengasu 262, 762
Veraprasbyia v. San tan raja P45
Verbadru v, Baee Ranee 988
Vidydshankar et al v. Ganpatram 6^4
Vijaya Devi v. Annapurna Devi ... ... ... VV2\
Vijiyarangam v. Laksbuman 86, 150, 162, 317, :i29, 4*>5, 5l7, 528.
985, 1014, 1079, lUO Vinayek Anundrao v. Lakshmibai 103, 112, 117, IrA 29f>, 312.
314,327,335, 337, 46i-. 46'i
Vinayek Lftk shir an /^/ oZ v. Chininnbai ...430,689, OiKi
Vinayek Narayan Jog v Govindiav Chiiitainau Jog Il06, 1107. 1109 Vinayek Ragbunarh v. G. T. P. Railway Oorapjany 1179
Ixxiv LIST OF CASES CITED.
Yinayek WassudeT v. Parm£aand&s8 227
Virakumara Servai v. Gopala Servai 1066
Viramuthi Udayana v. Singaravelu 3B8, 682
Vtrasvdmi v. Ayydsvdmi 786
Ytraswami Cbetti v. Appaswami Chetti 593
Virbaddru v. Bdee Ranee 918, 970, 1011
Virjivandas v. Mahomed AH Khin 696
Visalatchi Ammal v. Annasdmy Sdstry 163, 252, i?60, 719, 756
Visbnubhat v. B^bdji 398
Yisbna Gauesb y. Ndr&yan Pdndurang 95
Vishnu Trimbak v. Tatid 724
Yishnu Yishfandth v. Rdmchandra Narhar 704
Yisbrdm Baboorow v. Nardinrow K£ssee 1011, 1041
Yisbvandth V. Krishudji Gaiiesh e/ aZ 656
Vishvandth v. Mahdddji 172, 173
Yithalraw Vdsudev v. Cbanaya 190, 441
Yithaldass Mdnickddss v. Jesbabai 482
Yithal Krishna Josbi v. Anant Rdtnchandra ... 174, 202, 398, 411
Yitbal Pdndurang et al v. Purshottam Rdmchandra 705
Yithobd V. Eamchandra 915
Vithobd Bivi V. Haribd Bixi 779
Yitla Batten (or Buttal) v. Yamenamma... 219, 604, 671. 1111, 1172 Vranddvandds v. lamundbdi ... 80, 170, 219. 415. 461, 593, 653 Vrijabbukbandds Kirpdrdm v. Rirpardm Govandds ... 606, 749 Yyaknnta Bapnji v. The Government of Bombay ... 172, 176
Yyankatrav v. Anpurndbdi 481
Wdman J. Josbi V. The Collector of Thana 721
Wdman Rdmchundra v. Dbondibd Krishndji 205
Watson V. Glass 779
Webbe v. Lester 205
Western v. MacDermott 189
Wiles V. Gresham 1100
Williams t. Hensman 688
Williams v. Pott 687
Wilson V. Tooker 627
Wittul Rughooudth v. Huribhdyee 482
Wooma Daee v. Gokhoolanund Doss 894, 897
Wulubhrdm v. Bijleo 802
Y. Venkata Reddi v. G. Soobha Reddi 1093
Yacbereddy Chinna Basapa ei al v. Y. Gowdapa ... 943, 1211
Yamunabai v. is'aiayan 425
Yeap Cheah Nev v. Oii^ Cheng Nev 200
LIST OF CASES CITED.
Ixxv
Yekeyamian v. Agniswarian
Teshvantrdo v. Malbdrio
Yeeabfii kom D4ji r, Joti
Ynsaf Ali Kh&n ▼. Chubbee Singb
Zalem Roy v. Dal Shahee
Zemindar of Sivagiri v. Alwar Ajjanglr
PAGK
792, 1149, 1229 846 1162
ess
391 165
ACTS, REGULATIONS, AND STATUTES REFERRED TO.
I. — Acts of the Government op Indta.
PAGE
Act V. of 1843 1203
XI. of 1843 846
XXI. of 1850 426, 575, 690, 6o8
XIII. of 1856 1179
XXVIII. of 1855 786
XV. of 1856 88, 110, 360. 387, 389, 413. 414,425, 426, 427, 430, 447, 463, 469, 516, 590, 59^, 999
XL. of 1858 673, 674, 766, 1223, 1231
VIII. of 1859 3, 1234
XIV. of 1869 694,704,774
XXVII. of 1860 ... 609, 912, 915, 1184, 1186, 1229, 1232
XLV. of 1860 593
IX. of 1861 407, 541
XX. of 1863 175
XL of 1864 8
XX. of 1864 407, 472, 541, 672, 674, 675, 766, 948, 956,
1022, 1179
X. of 1865 ... 226, 226, 668, 669, 670, 1148, 1149, 1233 XL of 1865 ; ... 772
XXL of 1866 597
XXVII. of 1866 205, 441
XXVIII. of 1866 441
I. of 1868 774
VII. of 1870 1223
XXL of 1870 224, 668, 669, 670, 1148
IX. of 1871 683, 697, 704, 774. 1223
XXIII. of 1871 179, 775
I. of 1872 254, 676, 687, 696, 730. 748, 1235
IX. of 1872 7, 161, 191, 193, 207, 254, 599, 608, 611, 612,
617, 686, 746, 787. 1117
XIX. of 1873 402
IX. of 1875 80, 672, 948, 960
XL of 1876 775
ACTS, REGULATIONS, AND STATUTES BEFEBRED TO, Ixxvii
PAGE
Act I. of 1877 392,441,696,1090
III. of 1877 191. 681, 774
X. of 1877 794
XV. of 1877 261, 379, 615, 686, 687, 694, 696, 697, 698, 704, 763, 773, 774, 828, 1100, 1223, 1235, 1236, 1237
VI. of 1878 833
XV. of 1880 672, 675
V. of 1881 225, 226, 669, 775
XXVI. of 1881 ... 187
II. of 1882 175, 441, 605
IV. of 1882 ..• 179, 186, 189, 190, 191, 441, 686, 774
VI. of 1882 775
XIV. of 1882 226, 398, 599, 608, 672, 673, 1219, 1234, 1235
II.— Acts op the Government of Bombay.
Act V. of 1862 175, 745
II. of 1863 173, 175, 956
VII. of 1863 173, 722
IV. of 1864 3
VII. of 1865 ... 175
VII. of 1866 80, 748, 749
III. of 1874 ... 179, 202, 343, 745, 787, 845, 846, 1219 IH. of 1876 ... 696
V. of 1879 794
III. — Regulations op the Government of Bombay.
Regulation II. of 1827 2, 599
IV. of 1827 745
V. of 1827 379, 696, 697, 698, 828
VIII. of 1827 1235
XVI. of 1827 343, 787, 845, 846
XVII. of 1827 173, 175
IV.— Acts and Regulations of other Local Governments.
Regulations of the Qovemtnent of Bengal.
Regulation X. of 1793 948
XXVI. of 1793 ^^
Ixxviii ACTS, REGULATIONS, AND STATUTES REFEBHED TO.
Regulations and Acts of the Govefument of Madras.
Regulation III. of 1802 667
V. of 1829 667
Act VIII. of 1865 193
v.— Statutes op the British Parlument.
Statute 13 Edw. I. c. 1. (De Donis) 31
31 Hen. Till. c. 1 602
32Hen. VIII. c.l. (Statute of Wills) 220
32 Hen. VIII. c. 32 602
29 Car. II. c. 3 (Statute of Frauds) 223
9 Geo. II. c. 36 216
13 Geo. III. c. 63 1
21 Geo. III. c. 70 1, 5, 225
4 Geo. IV. c 71 1, 5
3 and 4 Will. IV. c. 75 298
3 and 4 Will. IV. c. 106 670
7Will. IV. (Statute of Wills) ... 223
1 Vict, c 26 (Statute of Wills) 223
22 and 23 Vict, c 39 775
23 and 24 Vict. c. 5 776
24 and 25 Vict. c. 104 1
45 and 46 Vict. c. 75 254
AUTHORITIES QUOTED AND REFERRED TO.
Ainslie (Mr. Justice). — 330. Ancient Laws of Wales.— 82, 278. Arbutbnot's Munro.— 173, 398. Aristotle (Bolland & Lang's edi- tion).—138. Araould (Sir Joseph).— 337, 789. Atkinson's Account of the Him&l-
yan Districts. — ^282. Aafrecht's Catalogue of Oxford
MSS— 17, 21. Aulas Gellius 7. 19.-928.
B Bacon's Abridgment, Customs. —
725. Baring-Gould's Germany.— 277,
279, 287, 734, 736, 737. Bengal Social Science Association
(Proceedings of).— 733. Benedictine Annals. — 197. Bhalchandra S&stri.— 20. 24, 68. Bh4d Ddji's MS. and Index.— 15. Bnhler's (Dr.) Catalogue of MSS.
for Guzerat.— 13, 68, 888. Bigelow's History of Procedure. —
685, 1101. Bikaneer Catalogue (Bdjendroldl
Hitter's).— 24. Bittlestone (Sir A.).— 711. . Blackburn (Mr. Justice).- 1226. Blackstone's Commentaries — 214,
819, 649, 695, 696, 846, 1208. Bombay (Jovt. Selections — XXXI,
173 Borradaile's Collection of Caste
Rules.— 1, 19, 20, 248, 256, 257,
262, 288, 392, 417, 423, 424. 425»
550. 603, 646, 659, 660, 661, 680,
690, 782, 789, 870, 925, 1213. Bowyer's Civil Law.— 186. Bracton.— 165, 223, 620, 696, 735,
744. Bramwell (Lord Justice).— 630. Breton ConstitQtion de la Chose
Jug^.— 605. Briggs (Greneral) Reports, Rev. and
Judl. Sel.— 172, 388, 786. Brougham (Lord).— 183. Buchanan's Mysore.— 284, 285,424,
895. Buddhist Law (Notes on, by Mr.
J. Jardine).— 892, 885, 891. Burge's Commentaries on Foreign
and Colonial Law.— 687. Bumell (Dr.).— 879, 894. (in Indian Antiquary).—
34, 283. Bumell's Tanjore Catalogue.— 27. Butler's Notes to Coke upon Lit- tleton . See Coke upon Littleton. Bynkershoek Opera.— 282.
c
CsBsar de Bello Gallico. — 119.
Canciani's Leges Barbarorum. — 223, 884, 937.
Chambers' MSS. (Berlin Collec- tion).—38.
Chaplin's Report on the Deccan (Rev. and Judl. Sel.).— 138, 172, 176, 786.
Charter of the Bombay High Court.— 6.
Cicero Pro Domo Sua XIII.— 928, 947, 1082.
Ixxx
AUTHORITIES QUOTED AND REFERRED TO.
Civil Code of New York,— p37. Civil Procedure Code. See Acts
VIII. of 1859 and XIV. of 1882. Clark's Early Roman Law.— 177,
221. Codex Lib. 1 Tit. V. Lex. IV.— 575. Codice Civile, Lib. 1 Tit. VII.—
937. Code Napoleon.— 937. Coke upon Littleton. —82, 162,
222, 223, 359, 627, 633, 649. 666,
671, 695. 696, 705, 735, 773, 846,'
881. _ Colebrooke, Mr. (in Str. HindO
Law). — Passim. Colebrooke*s Letters and Essays.
—265, 411, 1189. Colebrooke on Obligations. — 166,
253, 441, 645, 731, 747. Collett (Mr. Justice).- 131. Colville(Sir J.).-1002. Comyns's Digest.— 627, 629, 630,
664, 1100. Contract Act of 1872.— /S^ec Act IX.
of 1872. Cottenham (Lord).— 189. Couch (Sir R.).-330, 601, 661,
756. 1008. Coulange, Histoire des Institu- tions.—735. Coulange, La Cit^ Antique. — 122,
130, 271, 281. Cruise's Digest.— 590, 601, 697.
D
De Gnbematis Storia Comparata
Degli Usi Nuziali.— 276, 278,
282, 290. Digest (Civil Law).— 817, 1101,
1103, 1104. DoUinger's First Age of the
Church.— 422. Domat's Civil Law.— 183, 687, 704.
Dubois, Manners and Customs of the Hindfts.— 419, 422, 423, 424.
E
East (C. J.).— 98, 1028, 1038.
Ellenborough (Lord).— 629.
Ellis, Mr. (In Str. H. L.).— 98, 99, &c.
Ellis, Madras Mirasi Papers. — 176, 733, 1014
Elliott (Sir. W.)— 16.
Elphinstone's (M. E.) History of India.— 733.
Elphinstone's Report on the Dec- can (Rev. & Jud. Sel.)— 172, 786.
Elton's Origines. — 734.
Elton's Tenures of Kent.— 79, 166. 193, 347, 579, 590, 670. 730, 73t, 735, 744.
Evans's Pothier. See Pothier.
Field (Mr. Justice).— 618. Fisher on Mortgage. — 627, 774. Fortescue's Report (Rev. and Judl.
Sel.)— 733, 755. Fortnightly Review.— 100, 316. Forchhammer (Dr.).— 883. Freeman's History of the Norman
Conquest.— 173, 736.
G
(Jaius.- 66, 162, 194, 196, 243, 277, 284, 698, 724, 893, 905, 916, 925, 931, 932.
Cans, Erbrecht.— 280.
Gazetteer of North-West Pro- vinces.— 22.
Goiger's History of Sweden. — 734.
Glanville.~59, 214, 215, 219, 377, 730, 736, 806.
AOTHORITfES QUOTED AND REFERRED TO.
Ixxxi
Golapchandra Sarkar iS&stri ( Vira-
mitrodaya, translation by). — 23,
i?50, and pattsim, Goldstucker on the Deficiencies in
the Administration of the Hind A
Law.-14, 25, 42, 487, 491, 691,
730, 852, 869. Goudsmit, Pandects.— 187, 196,
297,441,869, 1101, 1155. Grant, J.— 253, 309. Grant's Report on the Deccan
(Re?. &. Judl. Sel.)—786. Grote's History of Greece.— 196,
Crete's Plato.— 196, 197, 217. Grotius de Jure Belli et Paeis.—
186, 585. Guizot's^istoirede la Civilization
en France,— 277.
H
Hall's (P. E.)Contributions towards Indian Bibliography .—17, 24.
Hall's Index to Indian Philosophi- cal Systems.— 24.
Hallam's Middle Ages.— 158, 173.
Hardwicke (Lord).— 791.
flargrave's Notes to Coke upon Littleton (See Coke npon Little- ton).
Harrington (Sir H.)-118, 119.
Heam's (Dr.) Aryan Household.— 243.
Hessels and Kern's Lex Salioa.— 448, 736.
Hobhouse, J.— 751.
Holloway, J.— 226, 947, 1003.
Hanter's Roman Law.— 173.
Ifene's History of Rome.— 874. Imperial Gazetteer of India.— 173, 264.
Indian Antiquary.— 17, 46, 197,
282, 288, 289, 423, 565, 733.
„ Company's Act. — See Act
VI. of 1882. „ Contract Act.— &e Act IX.
of 1872. „ Evidence Act, -^See Act I.
of 1872. „ Loans Act. — See Stat. 22
and 23 Vict. Cap. 39. ,, Trusts Act.— 5ee Act II. of 1882. Innos (Mr. Justice).— 9, 169, 330, 629.
Jackson (Mr. Justice L). — 1159. James (Lord Justice). — 705, 1230. Jainism, by E. Thomas. — -48. Janardhan (Mr. Justice). — 233. Jardine (Mr.)— 5ee Buddhist Law
(Notes on). Jessel (Sir G.)— 1227. Jolly (Professor J.)— 48, 49, 159,
286. Das Dharmasutra des Vishnu,
&c. — 35. Ueber die Reohtliche^ Stel-
lung der Frauen.— 282, 288, 324. Jones' (Sir Wm.) Works— 26, 30.
176, 311, 720, 890. Jones (Sir Wm.) in Str. H. L.—
661, 725. Journal of the Bengal Br. Royal
Asiatic Society. — 16. Journal of the Bombay Br. Royal
Asiatic Society.— 16, 18, 35, 689. Journal of the North China Br. of
the Royal Asiatic Society. — 272,
899. Jus Canonicum, by Reiffenstuell. —
243. Juv. Sat. XVI— 724.
Ixxxii AUTHORITIES QUOTED AND REFERRED TO.
Kanara Land Case (The).— 733. Kernble's Saxons in England ^
1070.* Kennedy (Mr. Justice). — 303. Kerr's Black stone. —670. Kern's BrihatsamhitA.— 30, 46. Kernan (Mr. Justice). — 626. Kielhorn's (Dr.) CafcalogaeofMSS
from S. Mar&tb& Country.— 37. Kielhorn's (Dr.) Mah&bh­a.—
37. Kindersley, J.— 625. Knight-Bruce(Lord Justice).— 629. Kirkpatrick (Mr. C. S.) in Indian
Antiquary.— 423.
Laboulaye's Histoire du Droit de Propriete Fon^i^re.— 178, 193, 223, 319, 721, 736, 744, 808.
Langdell's Cases on the Law of Con- tracts.—302.
Lassen's Ind. Alterthumer. — 30.
Laveleye's Primitive Property. — 197, 599, 733.
Lecky's History of European Mo- rals.—87.
Lecky's History of Rationalism. — 422.
Leges Henrici I. — 215.
Leitner's (Dr.) Account of Ghilgit Marriage {See Ind. Antiquary). — 282.
Letourneau's Sociology. — 949.
Letters Patent of the High Court. — 1.
Lewis (Sir G. C.) on the Govern- ment of Dependencies. — 1, 6.
Lex Salica (iS«6 Hessels)— 734.
Lex Saxonica, XV— 193.
Lindley (Mr. Justice).— 627.
Literary Society of Bombay, Trans- actions of — 280.
Loch (Mr. Justice).— 232, 237.
Lubbock's Origin of Civilization and Primitive Condition of Man.-280, 319, 421.
Lucretius De Nat. Rerum— 885.
Lush (Lord Justice). — 376.
Lyall's (Sir A. C.) Asiatic Studies. —736, 875.
M
Macnaghten's (Mr. W .) Principles and Precedents of Hindil Law.— Passim.
Macnaghten's (Sir Francis) Consi- derations on the Hindu Law. — Passim.
Magna Charta.— 396, 620.
Maine's (Sir H. S.'^ Ancient Law. —158, 173, 177, 180, 187, 194, 201, 213, 221, 222, 232, 237, 239, 240.601,733,734, 765, 767, 1101, 1155.
Maine's (Sir H. S.) Early History of Institutions.— 273, 356, 599, 732, 736,738.
Mansfield (Lord).— 191.
Mandlik(IUo Sdh^b V. N.) Vyava- h&ra Mayakha.— 10, 12, 20, 21, 24, 862, 863, 897, 909, 920, 929, 938, and Index.
MS. (Chambers') Berlin Collec- tion.—38.
Markby (Mr. Justice).— 96.
Marculfus (Formularies) Lib. II.— 197, 937.
Marsden's History of Sumatra.— 421.
* The reference has been incorrectly noted, pp. 199, 200.
It should be to Vol. I.,
AUTHORITIES QUOTED AND REFERRED TO. Ixxxiii
Max MiUler (Professor).- 42, 46, 877.
Max Muller's History of Ancient Sanskrit Literature. — 31, 41, 42, 48, 125. 283, 296, 419, 550, 867.
Max Muller's Sacred Books of the East —34, 35, 36, 38,' 39, 45, 48, 56. See separate list of HincKl Authorities.
Max Miiller's Lectures on the Sci- ence of Religion. — 875.
Mayiiz Oours de Droit Romain. — 214, 649, 808, 893, 905, 916, 926, 929, 931, 936, 1100, 1101, 1146, 1155.
Mayr (Dr. A.), Das Indische Er- brecht.— 288.
McLennan's Studies in Ancient Histoiy.— 281.420, 882.
Mellish (Lord Justice).- 191.
MelvUl (Mr. Justice M.).— 764, 773.
Melrill(Mr. Justice F. D.).--309.
Meyer, Histoire des Institutions Judiciaries.— 736, 863, 1101.
Milman's History of the Jews. — 277, 420, 733, 808.
Milnaan's History of Latin Christi- anity.—87, 422, 424, 425.
Mitter (Mr. Justice).— 334, 727. 863, 902, 1146, 1166.
Moramsen's History of Eomo. — 194, 221, 272, 649, 689.
Morgan's Ancient Society. — 286, 738.
Muir's Sanskrit Texts.— 11, 14,125, 265, 275. 280, 281, 282, 283, 289, 417, 867, 869, 878, 879, 883, 885,
Munro (Sir T.)— 174.
Muttus&mi (Mr. Justice).— 169.
N
Nanabhai Haridas (Mr. Justice).— 758, 1063.
Nelson's View of the Hindd
Law.— 290. Newton (Mr. Justice).— 233. Norton's Leading Cases. — 3, 99,
124, 412, 744, 1083.
0
O'Curry's Lectures.— 105, 275, 278,
431. Odyssey of Homer (The).— 282. Ortolan's Instituts de Justinian.^
186, 194, 933, 1080, 1148, 1197,
1203, 1204.
Peacock (Sir Barnes).— 557, 755. Peel (Sir Lawrence).— 258, 260,
313, 314, 756, 757. Penzance (Lord). — 376. Perry's Oriental Cases.— 178, 195,
196, 223, 305, 702, 1141. Petit. Leges Atticss.- 418, 893, 916,
938. Phear (Mr. Justice).- 730, 751,
779. Philosophy of the Upanishads. —
872, 874, 875, 876, 900, 919, 934, Pinhey (Mr, Justice).— 309. Plato.— Laws, 217. See Grote. Poly bins. —289, 939. Pontifex (Mr. Justice).— 5, 330,
784. Poste's Gains. — See Gaius. Pothier's Pandects.— 884, 1085. Pothier's Trait6 des Substitutions.
—319, 598, 610, 697, 731. Pottinger's Report on the DeccBLTv
(Rev. & Judl. Se\.V"^^- Proceedings of tbe BengaV Socm\
Science Association. — 733. Puchta Gewohnheitsrecht-^^^-
Ixxxiv AUTHORITIES QUOTED AND REFEEKED TO.
R
Rsijendral&l Mitter (See Bikaneer
Catalogue.) — 24. Eeeves's History of English Law.
—736. Regulations (Bombay).— 5etf Sepa- rate List. Report (Fifth) on Indian Affairs. —
197. Revenue and Judicial Selections. —
285, &c. Robertson's Report on the Deccan
(Rev. and Judl. Sel.)-78t>. Rohtak Settlement Report.— 281,
420. Roer and Montriou's Y&jiiavalkya.
—239, 719. Rowney's Wild Tribes of India. —
280, 282, 285, 288, 289, 376, 41^,
421.
s
Sacred Books of the East.— Sfe
Max Miiller. Samskarakaustubha.— 989. 1004.
See separate list of Hindi!!
Authorities. Sargent (Sir Charles).— 227, 758,
773. Sausse (Sir M. E.)— 246, 337, 651,
1051. Savigny's History of the Roman
Law.— 2, 91. Savigny's System.— 113, 190, 698,
703, 869. 1228. Savigny on Possession. — 218, 633. Schmid Die Gesetze der Angl. Sax.
—284. Schoeman's Antiquities of Greece.
—213, 214, 286. 585, 939. Schroeder's (L. Von) Edition of the
Maitr&yani Samhita. — 45. Scotland (C*. J.).— 1045. Scott (Mr. Justice).— 777.
Selbome (Lord).— 629. Sheppard's Touchstone. — 1100. Sleem ail's Journey through Oude.
— 26^t. Smith's Dictionary of Antiquities —
176, 214, 284, 424. 1082. Smith (Sir M. E )— 160, 185, 785. Smith's Leading Cases.- 697,1100. Soury Etudes Historiques. — 874. Specific Relief Act. — See Act I. of
1877. Spel man's De Non Temerandis
Ecclesiasticis. — 186. Spence's Equitable Jurisdiction of
the Court of Chancery. — 220,
221, 240. Spencer (H). — See Fortnightly
Review. Statutes. — See Separate List. Steele's Law of Caste. — Passim. Stenzler Yajnavalkya.— 239, 267,
268, 278. Stenzler, Indische Studien — 30,31. Stephen's Commentaries. — 717. Stokes's Hindu Law Books. —
Passim. Story's Conflict of Laws. — 774. Strangers Reports (Madras). — 1040^
1041, 1057, 1060, 1061, 1095. Strange's Hindtt Law. — Paseini. Stubbs's Constitutional History. —
193. 733. Stnbbs's Docts illustrative of
English History."— 747. Sullivan (Dr.).— 105. Sutherland (Mr.).— 10, 247, 311,
944, 1015, 1025, 1027, 1059, 1067,
1196, 1207.
Tacitus do Moribus Germano-
rum.— 287. Tagoro Ixjctures for 1880. — 63,
69, 681>, 877, 891, 1187.
AUTHOR[TIES QUOTED AND BEPEREED TO. IXXXV
TaswclI-LaDgmead^s Constitution- al Histor7.~284.
Terence's Hautontimorumenos. — 213.
Thomas (E.) Jain ism .-—48.
Thomson's Bhagavadgita.— 885, 900.
Tide's Ancient Religions. — 875^ 899,900.
Tod's R4iastb&u."-172.
Torakins and Lemon'ti Grains. — See Gains.
Transactions of the Literary So- ciety of Bombay.— 280.
Tucker (Mr. Justice).— 789.
Tapper's Panj&b Customary Law- -128, 138, 143, 158, 172, 1/6, 197, 210, 270, 275, 280, 283, 284, 285, 289, 29?, 336, 344, 376, 418, 419, 420, 421, 422, 423, 424, 426, 430, 486, 513, 667, 712, 713, 714, 724, 732, 733, 757, 805, 821, 910, 1023, 1028, 1029, 1081,
Turner (Lord Justice). — 178.
Turner (Sir Charles).— 627, 764, 910.
Tyler's Anthropology.— 420, 9^9.
Tyler's Primitive Culture.— 281.
Viner's Abridgment.— 359, 633,
649, 671, 697, 1219. Voet Commentarius ad Pandec-
ta8.-^194, 630.
w
Wacbsmuth's Historical Antiqui- ties of Greece. — 55. Wales, Ancient Lasvs of. —82, 278.
Ward's Survey Account.— 290.
Weber's History of Indian Litera- ture.— 125.
Weber's Indische Studien.— 37.
Wensleydale (Lord).— 881.
West's Bombay Code.— 698.
Westbury (Lord).— 4, 699, 1226.
Westropp (Sir M. R.)— 98, 101, 205, 257, 312 470, 560, 642, 649, 664, 695, 773, 863, 911, 913, 923, 938, 1014, 1017, 1040, 1043. 1044, 1048, 1051, 1087, 1223.
White (Mr. Justice).— 649, 746.
Whitney's Essays.— 874, 877, 900, 919.
Wilks's (Colonel) South of India.— 733, 775, 895.
Willems (Dr.) Droit Public Ro- main.— 928, 119/.
Willes (Mr. Justice).— 59, 60, 98, 183,881, 1009, 1146, 117L
Williams (Monier), Indian Wis- dom.—90, 93, 283, 296.
Williams's Executors. — 775.
Wilson's Glossary.— 649.
Wilson 'sSanskritDictionary.— 462.
Wilson's (H. H.) Works —62, 98, 131, 211, 213, 220,. 241, 304, 311, 321, 349, 494. 495, 552, 667, 568, 570, 571, 639, 669. 689, 781, 797, 809,911, 916,1147. 1151, 1178, 1182, 1183, 1202, 1213.
Wynford (Lord).— 1139.
z
Zachariae, Jus Gr83co- Roman urn.
—243, 585, 937. Zimmer, Altindisches Loben. —
878, 879, 883.
Ixxxvi
A LIST OF THE PRINCIPAL REFERENCES TO HINDfr AUTHORITIES.
A
Adipur&na.— 387.
Apar&rka.— 199, 780c.
Apa8tamba.-71, 86, 90, 91, 142, 274, 275, 283. 418, 666, 860, 867, 868, 8726, 873e, 876^, 882a, 889, 901, 926, 929, 934, &c.
Atri.—1071.
B
Bahvricha Br&hmana.— 1062. B^lambhatta (Lakshmi Devt). —
128, 130, 476, 529, 666, 677, 910,
912,931,962,1071. Baudh&yana.— 86, 87, 90, 122. 129,
267, 272, 276, 283, 289, 295, 424,
860, 872^ 873, 874, 875c, 8796,
883, 888, 892, 896, 897, 934, 935,
&c. Brihaspati.— 90, 144. 286, 329, 390.
464, 470, 644, 656, 732, 762, 784,
83L
Dattaka Chandrik& — 23, 862, 863,
864,879, 881, &c. Dattaka Darpana — -862. Dattaka Kaastubha (Saijisk&ra
Kaustubha).— 24, 862, 864, 881,
887, 896, 904, 921, 938, 941, 952,
1027, 1076. Dattaka Mim&msa (of Nanda Pan-
dita). — Passim, D&ya Bh&ga (of Jimtita Y&hana).
— Passim. D&yakrama Sangraha.— 210, 222,
306, 306, 323, 337, 501, 646, 649, - 653, 798, 812, 819.
Devala.— 268, 579, 654.
Dev&nda Bhatta — See SmritiChan-
drikH. Dh4rei vara.— 286. Dharmasindhu.— 25, 120. 539, 641,
603, 862, 938, 989, 1066. Dharmadvaitanirnaya or Dvaita
Nirnaya.— 862, 909, 1033.
G
Gautama.— 71, 85, 87, 275. 279, 296. 417, 418, 764, 860, ^68, 873<j, 8756. 876ti, 8796,889, 891,892, &c.
Haradatta.-~889. Harita.-91, 860.
Jagann&tha (in Colebrooke's Di- gest).— Passim.
Kamal&kara.— See Nirnayasindhii,
Karma Purfi-ria.— 916.
K&tya,ya.na.-^90, 91, 93, 249, 255, 296, 337. 378, 519, 527, 647, 654, 673, 802, 867, 971, 1074, 1146.
KullQka Bhatta.— 126, 296, 419, 837, 928.
Logakshi BhAskara. — 1131.
M M4dhav!ya.— 9, 126, 193, 293, 327,
648, 716, 805, 807, 892, 1047. Manu. — Passim.
PRINCIPAL REFERENCES TO HINDU AUTHORITIES. IxXXVU
MitAk shard. — Passim. Mitramisra. — See Vtramitrodaya.
N
Nagoji Bhafta.— 1043.
Nanda Pandita {see Daltaka Mt. m4m8&).--677.
N&rada.— 69, 81. 85, 91, 99, 100, 221. 268, 271, 281, 289, 293, 294, 295. 304, 311, 321, 379, 419, 426, 436, 541, 587, 592, 643, 644, 652, 658, 665, 666, 688, 692, 695, 698, 7i6, 751, 753, 758, 776, 782, 790, 799, 803, 805, 812, 821, 854, 860, 882, 883a, 885n, 897, 1090, 1190.
Nilkantha. — See Yyavab&ra MayA- kha!
Nirnaja Sindha (of Kamal&ka- ra).-23, 387, 447, 471. 48:?, 494, 515. 518, 552, 862, 887, 916, 989, 1005, 1030, 1059, &c.
Par&8ara.--920. Praj&pati.— 271.
R
9ig Veda.— 280, 281, 289, 290.
Samsk&ra Ganapati.— -862. Ankara Bhatfca. — See Dvaitnir- n&ja.
Saraavati Vil&sa.— 115, 171, 199. 273, 426, 1046.
6&t&tapa.-491.
Saunaka.— 8876. 919, 920, 1124.
Smriti Chandrikd.— 869, 894, 1047,
1076, and passim,
Smriti Kaastubha.— 9.
Subodhini (by Visve^varabbatta).
-99, 124, 128, 141, 658, 890, 892.
T
Taittiriya Br^hmana.— 885».
u
Usanas.— 271, 732.
y&chaspati Misra. — 919.
Varadrdja Vyavabdra Nimaya.— • 93, 193, 266, 270, 276, 290, 292, 805, 819.
Vasisbtba.— 71, 231, 267, 276, 280, 281, 289, 419, 753. 764, 860, 864, 869fl, 872a, 872A, 875*, 879a, 882a, 884, 885w, 886, 888, 934, 935.
Vatsa.— 1078.
Vcd&rtbayatna.— 2826.
VijMnesvara. — See Mit&ksbarft.
Viraraitrodaya of Mitramisra. — Passim.
Visbnu.-71, 75, 76, 85, 644, 736, 746, 752, 798, 819, 860, S72d, 8736, S7bd, B7oe, 8766, S76d, 882ff, 884c, 886/, 888, 889, &c.
Visbvamitra.— 1062.
Viiveivara. — See Subodhini.
Yiv&da Cbint4mani.— 233, 245, 255, 270, 273, 310, 605, 746, 760, 812. 912, 921, lOil, 1090, 1104.
Vyasa.— 271, 1078.
Vyavab&ra Mayftkha (of Nilkan- tba). — Passim,
YyavastbA Darpana. — ^947.
Y&jSavalkya.— 22, 75, 76, 84, 130, 135, 231, 239, 242, 246. 268, 275, 278, 279, 281, 320, 342, 370, 379, 382, 387, 424, 639, 643, 644, 692, 695, 698, 711, 719, 732, 780, 798, 860, 867, 869c, 876/, 886n. 892, 897, &c. See Mit&ksbarft.
Ixxxviii
ADDENDA AND CORRIGENDA.
|
Page 68 note (c) for 437 read 137. |
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96 note (a) line 4/or Bram- |
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169 note {b) for Tevan read |
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653 |
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201 note (a) line 6, aftei^ p. 350, |
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i>iser< S. 0. I. L. R. 7 |
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681 |
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I. L. R. 6 Bom. 298, |
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682 |
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and 7 Bom. 217. |
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207 note line 4 /or fonnders, reflfi founders' . |
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715 |
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217 line 2 for conception read |
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conceptions. |
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732 |
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224 line 4 from- bottom of |
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text /(M- 1871 rea(Z 1870. |
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742 |
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259 line 6 from bottom of text |
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743 |
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267 note (c) dele * in the ap- pendix.* |
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285 note iJb)for swpra p. 386 readtw/rapp. 818-19. |
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751 |
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333 line 11 for Siilka read |
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Sulka. |
9} |
777 |
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*9 |
368 line \for the read a. |
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381 line 6 for Maina reflwi |
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Manna. |
781 |
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443 Remark 3 line 1 for Ra- |
786 |
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joneek&ut read Eajo- |
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neek&nt. |
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>» |
604 note line 10 for Bhawat read Bhagwat. |
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793 |
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y> |
608 note after P. J. 1883 p. 31 insert S. C. I. L. B. 7 Bom. 222. |
» |
817 |
\ note {b)for Jaganatli read
Jaganndtha. note (c) after Dig add
Title * Action.' ' note (c) line 6 for Gnje-
r&th rearf Gujarat . note (a) para. 2 for Bi-
lass read Bilaso. note (a) para. 2 line 10
for Bamakannt read
Ramakaunt. note line 7 from bottom
add see below p. 703. note (a) for Chap. VI.
Sec. 7 read Sec. VII.
para. 2 and Sec. V. note line 9 for Us&nas
read Usanas. line 12 for Guneshidappa
read Gurushidappa. note (c) for Gocoolan-
nnnd read Gocool-
annnd. note {d) line 9 from bot- tom, for bhartvyam
read bhartavyam. ' note (c) line 9 after 1883
add S. C. I. L. R. 7
Bom. 155. note {o)for (o) read (a), note (/ ) line 4 from bot- tom for Brigg's read
Briggs's. note (d) for Hlr&ta read
Harita. note (a) line 2 for Sec.
read See
ADDENDA AND COBEIGBNDA.
Izxzix
Page 873 note (/) for Samsk&ra
read Samsk&ra or Sam-
Bkara. ,p 884 note (a) line 5/or Alama-
nni read AlamaTmi. ,9 905 note (c2) line 6/orAnimd-
monee read Anond-
moyee.
Page 921 note (c)/or Bhyubbnath
read Bhyrubnath. „ 926^note (c) for M&naspntra
read Manas putra. „ 964 note (a) for Bhoobyn read
Bhoobnn. „ 1070 note (a) line 3 /or p. 1
read 199. „ 1116 line 7 after that insert of.
INTRODUCTION.
I. — Operation of the Hindu Law.
The HindA Law, so far as it governed the private relations of the inhabitants of any part of India, was not afifected by their reduction under British rule. But the new Sovereign thus acquired a power to legislate for them, and this sovereignty was in part delegated to the East India Company daring its existence and down to 1833 a. d. (a)
The application of the Hindii Law to litigation by tho courts in British India is authorized and regulated by statutes of the Imperial Parliament and by Regulations (6) and Acts of the local Legislatures.
It is subject even without a statutory provision to modi- fication by custom, (c) which indeed may be regarded as the -^—— »
(a) See CampbeU v. HM, 1 Cowp. 204 ; Moodley v. The East India Company, 1 Br. B. 460 ; Dobie v. The Temporalities Board, L. B. 7. A. C. at p. 146. Lewis on the Government of Dependencies, 203, 88., and Note m.
(b) See the Statutes 13 Geo. III. c. 63; 21 Geo. III. c. 70; 4 Geo.
IV. c. 71 ; St. 24 and 25 Vic. c. 104 ; and the Letters Patent of the High Court under that Statute. These are discussed in the case of KMridds Ndrandds, I. L. B. 5 Bom. 154, and other cases there referred to. For the Mofussil, see Bombay Beg. IV. Sec. 26 of 1827. Under this a collection of the caste rules of Gnjar&t was made by Mr. Borradaile, to which the Courts were directed to conform in all cases to which they applied, by a Circular Order of the late Saddar AcUilat, dated 24th December 1827.
(c) See Mann I. 108, 110. II. 12, 18. Vn. 203. VEIL 41, 42. 46. Vyavah&ra May. Ch. I. Sec. 13. Ch. IV. Sec. V. 10, 11. Vijndnehara on Y4jnavalkya B. II. Sloka 4; Coleb. Dig., Bk. I., Oh. II., T. 49. Comm. ad fin. and note ; T. 50. Bk. II., Oh. IV., T. 18. Com. Y4jua- Talkya, Bk. II. 117 note by Roer and Montriou ; Collector of Madura
V. Mootoo Bamalivga, 12 M. I. A. 397.
IH
2 OPERATION OF THE HINDU LAW.
basis^ for all secular purposes, of the Hindft Law itself, (a) Thus, when a custom is proved, it supersedes the general law so far as it extends ; but the general law still regulates all that lies beyond the scope of the custom, (b) The duty devolving, according to the Hindfl sages, upon a conqueror of maintaining the customaiy private law of the conquered territory, (c) has been recognized as fully, or even more fully, by the British Courts than by the Legislature. Thus the Privy Council says in Rdmalakshmi Ammal v. Sivanan- tha Perumal Sethurayar (d) : — " Their Lordships are fully sensible of the importance and justice of giving eflFect to long-established usages existing in particular districts and families in India.'* They give effect to a course of descent in a family, differing from the ordinary course of descent (e) ; and to a right of a reigning r4j4 to select his heir (J') founded on custom though for some time disused or not distinctly asserted. In the Collector of Maduri v. Moottoo Rdmalinga Sathupathy {g) their Lordships dwell on the importance of the opinions of Pandits, such as those collected in the present work. By Bombay Begulation II. of 1827, a Hindft law officer was attached to the Saddar Ad^lat, and one to each Zilla Court, and questions of HindA Law were disposed
(a) See BMu Nan&ji v. SwridTabai, 11 Bom. H. C. B. 249 ; Mathv/ra Ndikin v. Esu Ndikin, I. L. B. 4 Bom. 545 ; Lulloohhoy Bappoohhoy v, Casdhdi, L. B. 7 I. A. at p. 237.
(b) Neelkisto Deb Bwrmono v. Beerchimder Thako&r and others, 12 M. I. A. 523.
(c) Manu VII. 203. YajSav. I. 342. The same edited by Jandrdan Mahddev, p. 358; Coleb. Dig.. Bk. IL, Ch. III., T. 60.
id) 14 M. I. A. 570, 585.
(e) Soorendrandth Boy v. M 'ssamut Seyrdmmee BurmoneaK 12 M. I. A. 81, 91.
(/) Neelkisto Deb Bvrmono v. Beerchmder TMkoor and others, 12 M. I. A. 523.
(g) 12 M. I. A. 397, 438, 439. See also LuUoobhoy Bwppoobhoy v. Cdssibdi, L. B. 7 I. A. at p. 230. That the S&stris were under strong religious obligation, see Vasishtba III. 6. Compare Savigny's His- tory of the Boman Law, English Translation, p. 284.
OPEEATION OF THE HINDU LAW. 3
of In accordance, generally, witli the responses of these officers. Each of the answers collected in this volume thus became the basis of an actual decision. The functions of the Hindd, as of the Mahomedan law officers were virtually set aside by the new Civil Procedure Code Act VIII. of 1859; and by Bombay Act IV". of 1864, supplementing (General) Act XL of 1864, the sections of the Begulation relating to the HindA law officers were repealed. Their services were dis- continued, and the HindA law has since then had to be collect- ed from the recognized treatises and from the records which these officers (usually called S^stris) had left behind them.
Residence within a Presidency town of which the chief inhabitants are English, does not, of itself, subject a Hindi to the English law,(a) though in Bombay particular legis- lation may to some extent have had this effect. (5)
Emigration from one to another province of India does not necessarily alter the law of inheritance to which the emigrant family originally belonged. (c) This marks the close connexion of the law of Inheritance amongst the Hin- dus with their family law. But at the same time a customary hw of inheritance may, it appears, be changed at his election by the person subject to it attaching himself to a class of the community on which the custom does not operate (c2) and
(a) The Administrator General of Bengal v. Ranee Sumomoyee Dosee, 9 M. I. A. 387.
(h) Naoroji Beramji v, Rogers, 4 Bom. H. C. R., p. 28 et seq. ; In re KiWndds Mrandds, I. L. R. 5 Bom. 164, 165, 170.
(c) Rutchejynthy Butt et al. v. Rdjunder Ndrrain Rde et al. 2 M. I. A. 132. Compare on this point Rdni Pudnidvati v. B. Doolar Singh et dl. 4 M I. A. 259, with Rdny Srtmuti Deheahy. Rdny Koond Luid et al. Ibid. 292 ; Chundro Sheekhur Roy v. Nohin Soonder Roy €tal.2C.W. R. 197; NobinChmnder v. Jmidrdhun Misser, C. W. R Sp. No. p. 67 ; Lukked Behed v. Gungd Gohind Bobey et al. Ibid, for 1864, p. 56 ; the R^jah of Coorg'a case, and others quoted iu 2 ^ot\., L, C. 474 and 12 M. I. A. 90; 1 Beng. Law R. 25 P. C. 8 C. N^- Ti. 261.
(<0 Ahraham v. Abraham, 9 M. 1. A. 195-
4 OPERATION OF THE HINDU LAW.
subject to n different law. It may be abandoned in favonr of the general law either by agreement or desuetude, {a) In R&jih Nngendur N drain v. Rdghonath N&r&yan Dey[h) it was held that a family custom as to intermarriages might be proved by declarations made by members of the family. But still the courae of derolution prescribed by law cannot be altered by a mere private agreement, (c)
In a recent case at Madras (^ it has been rnled that since the passing of the Indian Succession Act native Christian families have no longer been free to adhere to the Hindu Law of Succession, but that members born before the Act came into operation would not be deprived of their rights under the Hindu law. The latter point has been similarly ruled at Calcutta, (e)
In Mynd Boyee v. Ootardm (/) it was held that the illegi- timate sons of a European by two native women could not form a joint Hind 6 family in the proper senscj but could constitute *^ themselves parceners in the enjoyment of their property after the manner of a Hindft joint family." See further Lord Westbury's judgment in Barlow v. Orde (g) to the effect that in the absence of a general lex loci, the law applicable to the succession of any individual depends on his personal status, which again mainly depends on his religion, {hj
(a) Abraham v. Abraham supra ; Court of Wards v. Pirtlid Singh, 21 W. R. 89, 92, C. R. ; Baroda Debed v. Rdjdh Prcmki^lien Si7igh, 2 C. W. R. 81. 12 M. I. A. sup-a. See further below, and Index " Cus- tom."
(6) 0. W. R. for 1864, p. 20.
(c) Bdlkrishna Trimbak Tendulkar v. Siivitribdi, I. L. R. 3 Bom. 54, 57. See In re Kdhdndds Ndrandds, I. L. R. 6 Bom. 154,164.
{d) Fonnusdmi Nddan y. Dorasdmi Jyyan, I. L. R. 2 Mad. 209.
(e) Sarkies v. Prosonomoyee Dossee, I. L. R. 6 Cal. 794.
(/) 8M. LA., 400.
ig) 13 M. I. A., 277, 307.
{k) See In re Kdh^ndds Ndrandds, I. L. R. 6 Bom. 154.
OPERATION OF THE HINDU LAW. 5
In litigation between a HindA on the one side and a Mahomedan^ a Christian or a Parsee on the other^ it some- times happens that the decision would be different according as the law governing the one or the other party as a member of a class should be applied. The Statute 21 Geo. III., c. 70, 5 17, enabling the Supreme Court to hear and determine all suits against inhabitants of Calcutta provides *Hhat their inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party shall be determined, in the case of Mahomedans, by the laws and usages of Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos ; and where only one of the parties shall be a Mahomedan or Gentoo, by the laws and usages of the defendant/' The Statute 4 Geo. IV., c. 71, § 7, 17, enabled the Crown to confer a jurisdiction on the Supreme Court of Bombay, similar to that enjoyed by the Supreme Court of Bengal, and the Charter founded on this Statute, after giving authority to the Supreme Court " to hear and determine all suits and actions that may be brought against the inhabitants of Bombay,'' continues thus — '' yet, neverthe- less, in the cases of Mahomedans or Gentoos, their inheri- tance and succession to lands, rents, and goods and all matters of contract and dealing between party and party, shall be determined, in the case of the Mahomedans, by the laws and usages of the Mahomedans, and where the parties are Gentoos, by the laws and usages of the Gentoos, or by such laws and usages as the same would have been deter- mined by, if the suit had been brought and the action com- menced in a Native Court ; and where one of the parties shall be a Mahomedan or Gentoo, by the laws and usages of the defendant."
On the construction of the Statute 21 Geo. III., c. 70, § 17, Pontifer, J., would •' confine the words ' their inheritance and succession' to questions relating to inheritance and succession by the defendants." " The present," he said, " is a question of the plaintiff's succession and, therefore, not
6 OPERATION OF THE HINd6 LAW.
determinable by the laws and usages of the Gentoos/'(a) It can hardly have been intended that a Gentoo should lose his law of inheritance whenever he entered the Court to enforce it. In the Bombay Charter (as in that of the Supreme Court of Madras, para. 32,) the expression is slightly varied, yet the mere words would, equally with the Statute, admit of the construction put on the latter at Calcutta. It cannot well be doubted, however, that the Statutes and the Charters alike were intended to preserve the Hindft and Mahomedan laws of inheritance amongst Hindfts and Maho* medans.(6) The provision for the case of only ^^one of the parties " being " a Mahomedan or Gentoo *' had relation primarily, if not solely, to the cases of ** contract and deal- ing between party and party" in which the principle "In pactionibus et conventionibus unusquisque se sua lege defen- dere potest '* — is one of general though not of universal application. On a different construction of these provisions the property of a Hindu transferred to a Christian might have been- freed from the claim of widows and daughters to maintenance, but at the same time subjected to dower. ''It could not have been intended by the Legislature that the power of a Mahomedan to convey should be measured by the Hindft law.'* (c) But where there has been a contract between a Christian and a Hindft, on which the Hindi is sued, the right of each to his own law is equal to that of his adversary, and in such a case it is provided in favour of the defendant that he shall have the benefit of his own law, with which he is assumed to have been comparatively familiar, {d)
(a) Sarkies v. Prosonomoyee Bossee, I. L.K. 6 Cal. 794, 808. ** Gentoo" means HindCl.
(6) See In re Kdhdnd£s Ndrandds, I. L. R. 5 Bom 154, 166.
(c) Per Sir M. R. Westropp, C. J., in Lakshmandds Sarupchandy. Dasrat, I. L. R. 6 Bom. 168, 184.
{d) Compare the language of Lord EUenborough in R. v. Picton, 20 Howell's St. Trials, 944-6, quoted by Sir G. C. Lewis, Govern- ment of Dependencies, Note (m), p. 372.
OPEBATION OF THE HIND^ LAW. 7
In the mofussil of the Bombay Presidency the Regulation (IV. of 1827, § 26,) says—'' The law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case ; in the absence of such Acts and Regulations, the usage of the country in which the snit arose ; if none such appears, the law of the defen- dant, and in the absence of specific law and usage, justice, equity and good conscience alone/' Here the law of the defendant prevails, failing Statute law and usage of the country, but such usage there is governing inheritance, partition, adoption and the whole province of family law amongst the Hindis. The provision in favour of the defen- dant is not meant to have an operation such as to enable one man to dispose of another^s rights, (a) It is frequently a matter of accident which of the two parties to a suit is plaintiff and which defendant, and only where the plaintiff for instance could dispose and has disposed of rights of his own, is he deprived, failing Statute law and custom, in case of an alleged infringement of the right under another personal law, of a remedy adhering to the right under his own personal law. A son or a wife cannot be deprived of a real right under the Hindu law by a mere transfer to a Christian ; the '' ownership '' transferred can- not be greater than that of him who transfers it, and cannot be enlarged in the Christian's hands merely because under the English law the (HindA's) ownership would perhaps have been unencumbered. How far then the volition of a Hind{l passes property, depends on his law, as in the case of a Christian on the English law. What personal duty can be enforced against a Hindii will sometimes depend on the HindA law, and especially the law of Inheritance. In the sphere of contract the Statute law (6) has now, for most purposes, superseded the HindA law, and even in giving effect to the Hindii law of property and family law, equitable
(a) Lakshnumdas Sa/rukchand v. Dasrat, I. L. E. 6. Bom. 183, (h) The Indian Contract Act IX. of 1872. See also in Molhoo March and Co, v. The Court of Wards, the dictum Supp. I. A. at p. 100.
8 OPERATION OF THE HINDU LAW.
principles derived from the English Courts are brought to bear on its development in the exigencies to which the present age gives rise, (a) This process is consistent with the HindA law which seeks always to undo what has been fraudulently done, (6) and strives to enforce a con- scientious fulfilment of engagements (c) ; but as regards a heritage or the mutual relations of the persons inter- ested in property through family connexion or by rights derived from those so connected, it rests always on the basis of the positive law. This, therefore, is by no means superseded by the perpetual extension and the diversity of the cases brought to decision in the courts : a firm grasp of its principles and main provisions becomes all the more necessary as. details and particular instances multiply in the reports, in order to prevent the confusion which must arise from the incautious admission of rules incongruous in their logical consequences with the Hindft system.
To be correctly apprehended the HindA law, like other systems of law, must be studied in its history, and in its connexion with the religious and ethical notions of the people amongst whom it has come to prevail. The interpretation given to its ancient precepts by the com- mentators of authority, has been largely influenced by thQ philosophical systems, {d) The texts have in some instances been manipulated in order to bring them into accordance with notions of comparatively recent growth. Thus to reduce the law presented by the sources to precision and harmony, there is need for a strict
(a) Seo In re Kahdndds Ndrandds, I. L. R. 5 Bom. 154. File of Printed Judgments for 1880, p. 118, referring to 1 Mori. Dig. 106 ; 2 Bom. H. C. R. 62 ; 4 Beng. L. R. 8, A. C. As to the doctrine of notice, see I. L. R. 6 Bom. 193, 207, referring to Bddhdndth Doss v. Gishome, 14, M. I. A., at p. 17.
(6) Vyav. May. Oh. IV., Seo 7, para. 24. Stokes H. L. B. 79.
(c) Vyav. May. Ch. IX., 4, 10. Stokes H. L. B. 134, 136.
(d) See Vasishtha, Oh. XVI., paras. 1, 6, and Note. TransL p. 79. Co. Di. B. I., Oh. II., T. 49. Oomm. and note.
SOURCES OP THE HINDU LAW. 9
and rather widely-ranging criticism. Those sources, however, or at least the more ancient ones, are looked on as of so sacred a character; the references to them by the accepted gaides of ethical and legal thought, are so frequent and 80 aabmifisive; the tendency of custom, even where it has diverged from their teaching, is so strong to revert to obedience to their rational commands, (a) that a study of them, some comprehension of their character and teachings, is mdispensable as a foundation for a true mastery of the practical law of to-day.
//. — Sources of the Hindu Law.
L — On the Authorities of the Hindu Law as prevailing in the Bombay Presidency.
The authorities on the written Hindft Law in Western India Enumeration, are, according to Oolebrooke, (6) the Mitilkshard of Vijii4- neavara and the MayAkhas, especially the Vyavah&ramayukha of Nilakantha. Morley (c) adds the Vyavah&ramadhava Nirnayasindhu, Smritikau8tubha,Hem^dri, Dattakamlmamsa, and Dattakachandrik^, The quotations of the Sastris, ap- pended to their Vyavasthas, which perhaps afford the most trustworthy information on the subject, show that the following works are considered by them the sources of the written law on this side of India : —
1. The Mitakshar4 of Vijnanesvara,
2. The MayAkhas of Nilakantha, and especially the Vya- vaharamaydkha,
3. The Viramitrodaya of Mitramisra,
(fl) Compare the remarks of Innes, J., as to the submission of the Hon- Aryan tribes to the Hindd Law in Muttu Vaduganadha T6var v. ^ora Singha Thar, I. L. R. 3 Mad. at p. 309.
(ft) Strange, EL H. L., 4th ed., p. 318. Preface to Treatises on Inheritance, Stokes's H. L. B., p. 173.
(•) Digest n. CCXXII. 2u
tion.
10 AUTHORITIES ON WRITTEN LAW.
4 and 5. The Dattakamim&msa of Nandapandita and the Dattakachandrika of [Devandabhatta] Kubera. (a)
6. The Nirnayasindhu of Kamalakara,
7 and 8. The Dharmasindhu of K4sinatha Dpadhy&ya and the Samskarakaustubha of Anantadeva^
9, and lastly, in certain cases the Dharmasastras, or the Smritis and Upasmritis, which are considered to be Rishivakyani, ^ sayings of the sages/ together with their commentaries. These results have been corro- borated by the concurrent testimony of those Law OflScers and Pandits whom we have had an oppor- tunity of consulting.
Bolative posi- 2. The relative position of these works to each other may be described as follows: — In the Maratha country and in Northern Kdnara the doctrines of the MitaksharS. are para- mount ; the VyavaharamayAkha, the Viramitrodaya and the rest are to be used as secondary authorities only. They serve to. illustrate the Mit^kshara and to supplement it. But they may be followed so far only as their doctrines do not stand in opposition to the express precepts or to the general principles of the Mit&kshara. (6) Among the secondary authorities, the VyavaharamayAkha takes precedence of the Viramitrodaya. (c) The Dattakamimdms& and the Dattaka-
(a) Eao Saheb Y. N. Mandlik, yyavah&ramay(ikha and Y&JQ. Introd., p. Ixxii., is right in objecting to Mr. Sutherland's conjec- ture, which attributes the authorship of the Dattakachandrika to Devandabhatta.
{b) See The Collector of Madura v. Mootoo Ramalinga Sathupathy, 12, M. I. A. 438 ; Ndrdyan Bdbdji v. Ndnd Manoliar, 7 Bom. H.C.B. 167, 169, A. C. J. ; KHshndji Vyanhatesh v. Pdndurang, 12 Ibui. 65; Bdhi V. Govind valad Tejd, In. L. R. 1 Bom. 106; Lahshma/n Dddd Ndlk V. Bdmchandra Dddd Ndik, 565 S. C. in appeal to P. C. L. R. 7 I. A. at p. 191 ; Bamhoonwur v. Ummer^ 1 Borr. R. 460.
(c) See Colebrooke*s Introduction to Treatises on Inh., Stokes's H. L. B. 173, 176, 178; Gridhari Loll v. The Bengal Govt, 12 M. I. A 646.
MITAKSHAEA. 11
chandrika^ the latter less than the former^ are supplementary authorities on the law of adoption. Their opinions, however, are not considered of so great importance, but that they may be set aside on general grounds, in case they are opposed to the doctrines of the Vyavah&ramayAkha or of the Dharma- fiindha and Nirnayasindhu. The two latter works and the Samskkakaustubha, occupy an almost equal position in re- gard to questions on ceremonies and penances. They are more frequently consulted by the Sdstris of the Maratha conntry than the Mayftkhas, which refer to the same portions of the Dharma. Among these three^ the Nirnayasindhu is held in the greatest esteem.
All points of law, which may be left undecided by the works mentioned, may be settled according to passages from the Smritis or Dharmas&stras, or even from the Purilnas. The latter have less authority than the former, and may be overruled by them, (a) In case of a conflict between the rules of the Smritis either may be followed, as reason- ing on principles of equity (yuktivichara) shall decide the solution. (6)
The law of Gujar&t in some cases, it seems, alters the order of the authorities and places the Vyavah&ramayAkha before the Mit^kshard. As an instance may be quoted the case of a sister's succession to her brother's estate, imme- diately after the paternal grandmother, which, in accordance with the MayAkha, is allowed in Gujar&t. How far pre- cisely this preference of the MayAkha goes, is a matter of some doubt, to be cleared up by judicial determination, (c)
(fl) Vyfiea I. 4. " Where a conflict between the ^ruti, Smriti and Pur&nas appears^ the text of the Srati is the norm ; but in case of a conflict between the (latter) two, the Smfiti is preferable."
(h) See Mail's Sanskrit Texts, II., 165, and III., 179, &c.
{<j) See below; B. L Introd., sect. 4, B. (7) ; Introductory remarks ^ Ch. II., sect. 14. I. A. I. ; the case of Vijayarangnin v. Lakshman, 8 Bombay H. C. R. 244 0. C. J. -, Lalubhal v. Mankuvarhai, I. L. R.
12 AUTHOBITIES ON WRIWEN LAW.
Miiikshard. 8. The first of these aathorities^ the Mit&kshar&9(a) is tlie famous commentary of Vijnanesvara on the Institutes of
2 Bom. 388; L. R. 7. I. A. 212 ; S. A. No. 158 of 1870, decided on March 27, 1871. Bom. H. C. printed Judgments Pile for 1871.
Rao Saheb V. N, Mandlik (Introd. to Vyavahdramaytikha and Y&jnavalkya, p. 1.,) has found fault with the above statement of the sources of the HindtH Law in Bombay, and of their relative importance. He thinks that the editors of the Digest consider the Mit&kBhar&, the MayOkha and the Nirnayasindhu the only recognised official guides for settling the Hind<!l law, and adds that this opinion is a grave error. The censure however rests on an entire misapprehension of the views entertained. In the first two editions of this work, the DkarmaSdsiras and their Commeniaries have been mentioned as the ninth division of the sources of the law (as administered in Bombay), and in the amplification of that passage, the Purdnas, likewise, have been named. What the editors have stated and still hold, is that the eight works, enumerated by name, hold the first rank among the legal works, used in Bombay, and that their doctrines cannot be set aside lightly in favour of confiicting opinions of other authors, however much the latter may please individual taste. The editors li&ve further pointed out that the numerous omissions in the standard works may be supplied by information, derived from the dicta of the authors of Smptis, whether these be contained in complete original treatises (Sdtras or Dharmas&stras), or in quotations given by the medieval Nibandhak&ras, and by reasoning on principles of equity. In accord- ance with these principles, they have in the notes on the cases, freely drawn on published and unpublished legal works, not ccmtained in their list, in order to elucidate points left undecided or doubtful in the Mit&kshar& Mayt^kha, &c. But it did not enter into their plan to give a review of the medieval literature on Dharma or on Vyava- hllra, and without such a review no useful purpose, they thought, could be served by printing a mere list of authors' names and of titles. The Rao Saheb has given such a list, at pp. Ix. and lix. of his Intro- duction, but one drawn up with so little regard to system that in some instances the same works are entered under two names, and treatises on tiacrifices, astrology, astronomy and philosophy, nay poetical and story-books are placed side by side with works on the civil and religious law. The list, given at pp. Ixviii. and Ixix.,
(a) The proper title of the work, which however is used in the MSS. only, is Rijumit&ksherafcika.
MlTAKSnARA. 13
T&jnavalkya. The latter work, which probably is a versi- fication of a Dharmasfttra^ i.e., of a set of aphorisms on Dharma belonging to the White Yajurveda, (a) contains about athoasand verses divided into three chapters (ksLndas) which treat respectively of 'the rule of conduct' (ftch&ra), of civil and criminal law (vyavahAra), and of penances (pr&yaschitta) . As may be inferred from the small extent of Tlynavalkya's
which is stated to have been compiled from answers of Sdstns, contains several doable and inaccarate entries, (snch as Mitftksbar& and Yijn&neavara* Sarvamayilkba, ^ all the Majiikhas and the sepa- rate titles of the twelve Maytlkhas, such as M&dbava, Dinakaroddyota, &c., where specifications are required. It is incomplete also, as the "Boo Saheb himself suspects, and appears to have been made up exclusively by Konkanastha and De^stha Pandits. Much fuller information on the legal books, consulted by the Bombay Pandits may be obtained from Dr. Biihler's Catalogues of MSS. from Gnjar&th (fasc. III., p. 67 seq.) and Dr. Kielhom's Catalogue of MSS. from the Southern Mar&th& Country. As regards the comparative estimation in which the books, contained in the Kao Saheb's list, are held, no information is given — an omission which makes it almost valueless for the purpose which it is intended to serve. The fact that a good many other books besides those enumerated in the Digest are consulted, i, e., occasionally referred to by Pandits, proves nothing against the opinion advanced by the editors that the eight works, named above, are the standard authorities, nor do the Rao Saheb's remarks on the Mit&kshar& (p. Ixxi.) disprove its preeminence, as far as questions of the Civil Law are concerned. His dicfum that there is nothing remarkable about the book is controverted by the view of the responsible Court Sdstris as pointed out in Krishndji Vyankatesh v. Pdndurang, 12 Bom. H. C. R. 65, and in Lallnhhdi Baptibhai v. Mdnkuverhdi, I. L. R. 2 Bo. S., at pp. 418, 445, and of many excellent native authorities, as well as by the respectful treatment accorded to VijB&nayogin, in the best native compilations of the 16th and 17th centuries. His remark that the' works of Katnala- kara, M&dbava, N&r&yana and other Bhattas are more frequently consulted than the Mit&kshar& is true. But the reason of this is that, under British rule, with its organized judiciary, Pandits are consulted by the people not on civil law, but on vows, penances, ceremonies, and other matters of the religious law, on which sub- jects the books, named by him, give fuller infer oiat ion than tho Mitiksharft. (a) Bee below.
14 AUI'HOEITIES ON WUITTBN LAW.
work, this author gives fragmentary rules only, whicli neitlier exhaust their subject, nor are in every case easily intelligible. Vijnflnesvara remedies the defects of his original, not only by full verbal interpretations, but also by adding long discus- sions on doubtful points, and by illustrating and developing TSjiiSvalkya's and his own doctrines by quotations from the Institutes of other Rishis. For he holds the opinion, which is also the generally received one among modern Hindft law- yers, that the Smritis or various Institutes of Law form one body, and are intended to supplement each other, (a) But this opinion occasionally misleads him, and causes him in some few cases to explain the text of Tdjiiavalkya in a manner inconsistent with the rules of sound interpretation. With these occasional exceptions, his expositions certainly merit the high repute in which they long have stood with the learned of the greater part of the Indian Peninsuls^ The
(a) Vijn&ne6vara Bays in his commentary on Y&jn&valkya I. 6, which contains an enumeration of certain authors of Smritis, (Mit. Ach&rak, 1*. 15, Btlhar&m'B edition of Saibvat 1869)':—
" The meaning (of this verse, I. 5,) is that the Institutes of Law composed by Y&jnavalkya ought to be studied. The enumeration (of authors of Smritis given in this verse) is not intended to be exhaustive, but merely to give examples. Therefore (this verse) does not exclude (the works of) Baudh&yana and others (who are not mentioned) from the Institutes of Law; as each of these (Smpitis) possesses authority, the points left doubtful (by one) may be decided according to others. If one set of Institutes contradicts the other, then, there is an option."— See Manu II., 10, 14 ; XII. 105, 106 ; Vyav.» May., ch. I., pi. 12 ; Col. V. Dig. sect. 7, 424 ; Mit. in 1 Macn. H. L. 188. Muir's Sanskrit Texts II., 165 ; III., 179, ss., and as to the applications of the texts, Bhyah Ram Singh v. Bhyah Ugur Singh, 13 M. I. A. 390, and Collector of Madura v. Mootoo Bamalinga Sdthapathy, 12 M. L A., at p. 438.
The HindA commentators always endeavour, even at the cost of much straining, to extract consistent rules from texts which they regard as equally above human censure **comme d'apr^s la m^thode dcs legistes il faut quo les textes aiont raison lorsqu'ils ne presentcnt aucun sens." Sec Goldstiicker " On the Deficiencies in the Adminis- tration of the Hindu Law,'* p. 2.
MITAKSHABA. 15
discussions and amplifications, added by VijiianesVara to his explanation of Yajndvalkya's text, make the Mitaksharft rather a new and original work, based on Ydjiiltvalkya than a mere gloss, and one more fit to serve as a code of law than the original. Bat extensive as the Mitslkshar^ is, it does not provide for all the cases arising, and, if used alone, would often leave the lawyer without guidance for his decision.
Regarding the life and times of Vijndnesvara little is known. Eecent discoveries, however, make it possible to fix his date with greater certainty than could be done formerly. Mr. Colebrooke (a) placed Vijndnesvara between 800 — 1300 A. D., because, on the one hand, he is said to have belonged to an order of ascetics founded by Sankarachftrya, who lived in the 8th century A. D., and because, on the other hand^ Visvesvara, the oldest commentator, flourished in the 14th century of the Christian era. He adds that if the Dh^ resvara, {h) 'the lord of Dharft,* quoted in the Mitikshara is the same as the famous Bhojarclja, king of Dh&rl^y the re- moter Hmit of Vijnanesvara's age will be contracted by more than a century. In favour of Mr. Oolebrooke's latter state- ment, Kamalakara's testimony may be adduced, who in the Vivadatdndava (succession of a widow) ascribes the same opinion to Bhojar&ja, which the Mit^kshar^ attributes to Dhiresvara (the lord of Dhar^).
A much better means for settling the date of Vijnslnesvara is, however, furnished by some verses, which are found at the end of the Mit&kshara in some of the oldest MSS. (r) and in the Bombay lithographed edition, and which were appa- rently not unknown to Mr. Colebrooke. (d)
(fl) Stokes's HindA Law Books, p. 1/8.
(6) See, e. g.. Col. Mit. 11. 1., 8 (Stokes, p. 429).
(c) The MS. of the Govt, of Bombay, dated Saka Samvafc 1389, Br. Bh&ft D&ji MS. and Ind. Ofif. No. 2170, dated Vikrama Samvat, 1835.
W Stokes, p. 178.
18 AUTHORITIES Ox\ WRITTEN LAW.
There we read verses 4 and 6 (a) : —
4. " There has not been, nor is not will be on earth a city, comparable to Kaly&napura ; no king has been seen or heard of, who is comparable to the illustrious Vikramanka; nothing else that exists in this kalpa bears comparison with the learned Vijnanesvara. May these three who resemble (three) kalpa-creepers, be endowed with stability/*
6. " Up to the bridge of famous (RS-ma), the best of the scions of Raghd's race, up to the lord of mountains, up to the western ocean, whose waves are raised by shoals of nimble fishes, and up to the eastern ocean, may the lord Vikramft- ditya protect this world, as long as moon and stars endure/'
Vijninesvara lived, therefore, in a city called Kaly&napura, under a king named Vikramdditya or Vikramanka. As the learned Pandit, by speaking of his opponents as ^ the North- erners* shows {b) that he was an inhabitant of Southern India, it cannot be doubtful that the Kalyanapara named by him is the ancient town in the Nizam's dominions, which from the 10th to the 14th century was the seat of the restored Chalukya dynasty, (c) This identification is supported by the consideration that Kalyana in the Dekhan is the only town of that name, where princes, called Vikramdditya, are known to have ruled. One of these, Vikramaditya-Ka- livikrama-Parmddirdya, bore also, according to the testi- mony of his chief Pandit and panegyrist, Bilhana, the not
(a) 5e0 Jonrn. Bo. Br. Roy. As. Soc. IX., pp. 134-138, and hxi?.— lxx?i. The recovery of the Vikram&nkadevacharita makes it probable that Yikram&nkopamah, not Yikram&rkopamah, is the cor- rect reading in verae 4. The statement made at the end of the article, that the conclading verses belong not to VijS&nelvara, but to some copyist, is no longer safe. B»ecent researches show that most if not all Sanskrit authors appended to their works statements regard- ing their own private affairs, which frequently are not in harmony with our notions of modesty.
{b) See Joum. Bo. Br. As Soc. IX., p. Ixxv.
(c) Regarding the Ch&lukya dynasty, see Sir W. Elliott, Joum. Bengal Br. As. Soc. IV., p. 4.
MITAKSHAEA. 17
very common appellation, Vikram&nka. (a) He appears to be the prince named as Vijnanesvara's contemporary. His reign falls according to his inscriptions between the years 1076 — 1127 A.D. Hence it may be inferred that Vijnanosvara wrote in the latter half of the eleventh century, a conclusion which agrees well enough with his quoting Bhoja of Dhdr&, who floarished in the first half of the same century. (6) It may be added that Vijnanesvara certainly was an ascetic, because he receives the title paramahamsaparivrajakSicharya. By sect he was a Vaishnava. His father's name was Padmanft- bha-bhatta and belonged to the Bharadv^ja gotra. The discovery that Vijnanesvara was an inhabitant of Kaly^na in the Dekhan, and a contemporary, if not a proteg^, of the most powerful king whom the restored Ch^lukya dynasty produced, explains why his book was adopted as the standard work in Western and Southern India, and even in the valley of the Ganges.
The explanation of the Mit&ksharft is facilitat-ed by two Sanskrit commentaries, the above-mentioned SubodhinJ of Visvesvarabhatta and the Lakshmlvyj^khy&na, commonly called Balambhattatikd, the work of a lady, Lakshmldevi, who took the nom de plume Bila.mhhB.ttB,. (c) Visvesvara's comment explains selected passages only, while Lakshmidevi gives a full and continuous verbal interpretation of the Mitdkshari accompanied by lengthy discussions. She gene- rally advocates latitudinarian views, and gives the widest interpretation possible to every term of Yajnavalkya.
Instances of this tendency may be seen in the quotations given below. Her opinions are held in comparatively small esteem, and are hardly ever brought forward by the S^stris, if unsupported by other authorities.
(a) See Vikram&nkadevacharita of Bilhana, passim,
(h) See Indian Antiquary, YI., p. 60, seq.
(c) 5ce Colebrooke Stokes's H. L., p. 177, Aufrecht, Catal. Oxf. ^SS.p.262a;F. E. Hall Contribution towards Ind. Bibl., p. 175. The correct form of Lak^hn^devi's family name is Pdyagunde. 3b
18 AUTHORITIES ON WRITTEN LAW.
Two oMier works^ the Viramitrodaya and the Ydjnavalkya- dharmas&stranibandha, a commentary on Yiljnavalkya, by Aparftdityadeva^ or Apar&rka^ also give great assistance for the explanation of the Mit&kshard. About the former more will be said below. As regards Apar&rka's bulky work, it must be noted that Mr. Colebrooke recognised its importance, and frequently quoted it. (a) If his example has not been followed in the first edition of this work, the sole reason was that no MSS. were then procurable in Bombay. The Nibandha is now accessible in several copies, and has been used to elucidate several important points. Apadlrka or Aparadityadeva belonged to the Konkana branch of the princely house of the Silaras, or SilUh&ras, who had their seat at Puri, and held the Konkana as well as the adjacent parts of the Dekhan as feudatories, first of the Bothers of M&nyakheta-M&lkhet, and later of the Ch&lukyas of Kalyana. He reigned and wrote between 1140 — 1186 A. D., shortly affcer Vijn&nesvara's times. (6) His doctrines closely resemble those of his illustrious predecessor; several passages of his work look like amplifications of Vijntoesvara's dicta, and are of great value for the correct interpretation of the Mitltkshara. It is, however, difficult to say whether Apararka in these cases actually used the Mitksharft, or whether both drew from a common source.
Besides the native commentaries and Nibandhas, there is the excellent translation of the Mit&kshar& on Inheritance, by Colebrooke, (c) which has always been made use of in trans- lating the authorities appended to the Vyavasthda. In some places we have been compelled to dissent from Colebrooke;
(o) Stokes's Hindu Law Books, p. 177, and Translation of the Mit. on Inh., passim.
(b) See Journ. Bo. Br. As. Soc^ Vol. XII. Eeport onKa^mtr, p. 62.
(c) Two treatises on the Hindd Law of Inheritance, translated by H. T. Colebrooke, Calcutta, 1810, 4to. Beprinted in Wh. Stokes's Hinda Law Books, Madras, 1865, and by Girish Chandra Tarkalankar, Calcutta, 1870.
VYAVAHAEAMAY^KHA. 19
but .we are persuaded that in nearly all these instances Colebrooke had different readings of the text before him. The first part of the Yyavaharak^nda of the Mitk&shara has been translated by W. H. Macnaghten. The edition of the Sanskrit text of the Mit&kshara used for the Digest is that issued by Babarim, Samvat 1869.
4. The Vyavah&ramayftkha is the sixth Mayflkha or ^ray ^ VyavahAra. of the Bhagavanta-bhJlskara, Hhe sun/ composed (with the permission of, and dedicated to, king Bhagavantadeva,) by Nilakanthabhatta. The Bh&skara, which consists of twelve 'rays' or divisions, forms an encyclopedia of the sacred law and ethics of the Hindfls. It cootains :—
1. The Samskaramayftkha, on the sacraments.
2. The AcharamayAkha, on the rule of conduct.
3. The SamayamayAkha, on times for festivals and reli- gioas rites.
4. The Sr&ddhamayilkha, on funeral oblations .
5. The NltimayAkha, on polity.
6. The Vyavah^ramayilkha, on Civil and Criminal Law. 7 The Dllnamayukha, on religious gifts.
8. The TJtsargamay<!tkha, on the dedication of tanks, wells, &c.
9. The Pratishth&mayAkha} on the consecration of tem- ples and idols.
10. The Pr&yaschittamayfikha, on penances.
11. The SuddhimayAkha, on purification.
12. The S&ntimayAkha, on averting evil omens, (a)
The Vyavah&ramayftkha, which has the greatest inteTe^t
(a) See Borradaile in Stokes's H. L. B., p. 8. Tbe oorreotnesa of tbe order in which the books are enumerated is proved by th© in- troductory verses of each Maytikha, where the immediately preceding one is always mentioned, as well as by the longer introduction to one of the M3S. of the NitimayAkha,
20 AUTHOEITIES ON WRITTEN LAW.
for the student of Hindft law, is, like all the other divisions of the Bhaskara, a compilation based on texts from ancient Smritis, and interspersed with explanations, both original and borrowed from other writers on law. It treats of legal procedure, of evidence, and of all the eighteen titles known to Hind A law, which, however, are arranged in a peculiar manner differing from the systems of other Pandits. In hia doctrines Nilakhantha follows principally the Mitakshar& and the Madanaratna of Madanasiii!ihadeva(a), sometimes preferring the latter to the former. Prom a comparison of the portions on inheritance of the MayOkha and Madanaratna, it would seem that Nilakantha sometimes even borrowed opinions from Madana without acknowledgment. Some passages of the Mayftkha, 6.^., the discussion on the validity of certain adoptions, are abstracts of sections of the Dvai- tanirnaya, a work by Sankara, the father of Ntlakantha, and are not intelligible without the latter work, (b)
Of Nilakantha'a life and times some account has been given by Borradaile. (c) According to him, that Pandit was of Dosastha-Mdhirdshtra descent and born in Benares. He lived, as one of his descendants, Harabhatta . Kastkar, told Captain Robertson, the Collector of Puna, upwards of two hundred years ago, i.e., about 1600, sixteen generations having passed since his time. Other Puna Pandits gave it as their opinion that Nilakantha's works came into general use about the year 1700, or 125 years before Borradaile wrote, (d)
(a) This author compiled an encyclopedia, similar to that of Nilakantha, the twelve Uddyotas. The work, commonly called Ma- danaratna, bears also the title Vyavah&raddyota.
(6) Stokes's Hindu L. B., p. 68, seq.; May., chap. IV., sect. V., ss. 1-5.
(c) Stokes's H. L. B., p. 7, seq.
{d) The correctness of the information given to Borradaile is now attested by the paper of Professor B&[ SdstH, translated in the Introd. to Rao Saheb V.N. Mandlik's Vyavah4ramayAkha, p. Ixxv, For it appears that Ntlakantha was the grandson of N&r&yanar bhatta, who wrote in Saka Samvat 1469, or 1636 a. d.
VIBAMITEODAYA. 21
Borradaile adduces also the statement made at the end of gome MSS. of the VyavahiramayAkha, that Nilakantha Kved, whilst composing the Bh&skara, under the protection of Bhagavantadeva, or Yuddhasiira, a Rfejput chief of the Sangara tribe, who ruled over the town of Bhareha, near the confluence of the Chambal and of the Jamnd. A possible doubt as to whether the passage containing these notes is genuine and its contents trustworthy, is removed by the fact that many copies of the Sraddha, Samskara and Kltimayftkhas likewise contain the statement that Ktlakantha-bhatta, son of Sankara-bhatta, and grandson of NarayanasAri, was ordered by Bhagavantadeva, a king of the Sangara dynasty, to compose the Bhaskara. Some copies of theNltimayAkhaand of theVyavahiramayilkha enumerate also nineteen or twenty ancestors of Bhagavantadeva. (a) At the same time the author calls himself there D&kshin^ty&vatamsd ' of Dekhanl descent/ and thus confirms the report of the Puna Brahmins. The edition of the Sanskrit text of the VyavaharamayAkha used for the Digest is the oblong Bombay edition of 1826. The translation of the passages from the MayAkha quoted in the Digest has been taken from Borradaile' s translation. This work, though in general of great service, is frequently inaccurate. Some passages of the text have been misunderstood, and others are not clearly rendered. Where this occurs in the passages quoted, the correct translation has been added in a note. (6)'
5. The Viramitrodaya is a compilation by Mitramisra, Vtramitro- which consists of two kandas on Ach&ra and on Vyavahara.(c)
(a) See Aufrecbt, Oxf. Cat., pp. 280-81. His list does not quite agree with that given in the Ist edition of the Digest. The text of the verges is so corrapt that it cannot be settled without a collation of fresh and more ancient copies.
(b) The translation of Rao Saheb V. N. Mandlik, published in Bombay, 1880, is, though in some respects better than Borradaile's, not sufficiently accurate to warrant its adoption in the place of the old one.
(c) This would not be a matter of surprise if a third k&nda on penances (pr&yaschitta) were found. But hitherto only two have ^J<5come known.
22 AUTHOEITIES ON WRITTEN LAW.
The latter is written nearly in the same manner as the May A"> kha. But Mitramisra adheres more closely to the Mitakshar^ than any other writer on law. He frequently quotes its very words ; to which he adds further explanations and para- phrases. At the same time he enters on lengthy discussions regarding the opinions advocated by , Jimfltavd>hana, Raghunandana^ and the Smritichandrikd, Occasionally he goes^ beyond or dissents from the doctrines of theMitakshara. In the YyavaharakHnda (a) which has been published, Mitra'^ misra says that he was the son of Parasurama and grandson of Hamsapandita, and that he composed his work by order of king V)rasimha, who, according to the last stanza of the book, was the son of Madhukaras&ha. The beginning of the unpublished ftch^rak^nda gives a fuller account of the ancestors of Mitramisra's patron, among whom, Medintmalla, Arjuna, Malakhdna^ Prat&parudra, and Madhukara are enumerated. Besides, it is stated that these kings were Bundel&s. (b) This last remark makes it possible to identify the author^s patron.
Virasimha is nobody else but the well-known Birsinh Deo of OrchhA, who murdered Abul Pazl, the minister of Akbar, and author of the Ayin-Akbari.(c) This chief, who was violently persecuted by Akbar for the assassination of his minister, was also a contemporary of Jehangir and Shah Jehan. The Vtramitrodaya, therefore, must have been written in the first half of the 17th century, or a little later than we had placed it according to internal evidence in the first edition of this work. The references in the Digest are to the quarto edition published by Chftd^mani at Khidi* rapura, 1815. A careful translation of the part of the Virar mitrodaya relating to inheritance has been published,
(a) Viramitrodaya, eloka 2.
(b) Viramitrodaya, Ind. Off. No. 930, filokas 1—37.
(c) See Gazetteer North- West Provinces, I., pp. 21-23, where Bir* siifah'8 pedigree, which exactly corresponds with Mitramisra'e genealogy of Yirasimha, has been given.
NIBNATASINDHU. 23
accompanied by the text, by Mr. Gol&pchandra Sark^ 6dstri, Calcutta, 1879.
6. The next two authorities, the Dattakamimclms& Dattakamt- and Dattakachandrik&, do not call for any remark here, as DaUakachan- they have little importance for the law of inheritance. The ^rtkk. discussion of them belongs to the law of adoption.
7. The Nirnayasindhu of Kamalakara, called also Nir- Nii^ayasin- fiayakamal^kara, consists of three parichhedas, or chapters.
The first and second contain the kalanirnaya, i.e. the divi- sion of time, the days and seasons for religious rites, eclipses of the sun and moon, and their influence on ceremo- nies, &c. The third chapter is divided into three prakaranas or sections. The first of these treats of the sacraments or initiatory ceremonies, the second of funeral oblations, and the third of impurity, of the duties of Samny&sis and other miscellaneous topics of the sacred law. The book i& a compilation of the opinions of ancient and modem astronomers, astrologers, and authors on sacred law, from whose works it gives copious quotations. The passages quoted are frequently illustrated by Kamal&kara's own comments, and occasionally lengthy discussions are added on points upon which his predecessors seem to him to have been at hult. Eamaldkara himself tells us that in the first and second chapters he chiefly followed M&dhava's Kalanirnaya and the section of Hemadri's work which treats of Times. (a) His learning is esteemed very highly in Western India, especiaQy among the Mar&thds, and the Nirnayasindhu is more relied upon in deciding questions about religious cere- monies and rites than any other book.
In the introductory and in the concluding slokas of the Nirnayasindhu, E!amal&kara informs us that he was the son of Rftmakrishna, the grandson of Bhatta N4r4yanasAri, and the great grandson of Rtoesvara. He also names kis mother TJma, his sister Ganga, and his elder brother
(a) Nirnayasindhu I. 7.
24 ADTHORITIBS ON WRITTEN LAW*
Dinakara, the author of the Uddyotas. (a) His literary acti- vity was very extensive. He wrote, also, the Vivddatandava, a compendium of the civil and criminal law, based on the Mitaksharft, a large digest of the sacred law, called Dharma- tattva-Kamaldkara, divided into 10 sections : 1, vrata, on vows ; 2, ddna, on gifts ; 3, karmavip«lka, on the results of virtue and sin in future births ; 4, santi, on averting evil omens ; 5, pftrta, on pious works ; 6, dchara, on the rule of conduct ; 7, vyavahara, on legal proceedings ; 8, pra- yaschitta, on penances ; 9, sftdradharma, on the duties of SAdras ; 10, tlrtha, on pilgrimages. The several parts are frequently found separate, and many are known by the titles sftdrakamaldkara, d&nakamalakara, &c. Kamal&kara, further, composed a large work on astronomy, the siddhfintatattva, vivekasindhu and other treatises, (b) He himself gives his date at the end of the Nirnayasindhu, where he says that the work was finished in Vikrama Samvat 1668 or 1611 — 12 A. D. The edition of the Nirnayasindhu, used for the Digest, is that issued by Vitthal Sakhar&m, Saka 1779, at Puna. Samskra- 8. The Samskarakaustubhaof Anantadeva, son of Apadeva,
or one of the numerous compilations treating of the sixteen sacraments and kindred matters. It is said to belong to the same time as the Nirnayasindhu.
The author (c) compiled a good many other treatises on philosophical subjects, a Smritikaustubha and a Dattakau* stubha on the law of adoption, (d) The edition referred to in
(a) Compare also Professor B&l ^^strl's paper in Rao Saheb Mandlik's Vyavah&ramayAkha, &c. pp. Ixxv. — vi.
{b) See R&jendral&l Mitra, Bikaner Catalogue, pp. 499, 504.— Hall, Index of Indian Philosophical Systems, pp. 177, 183, where the date is, however, given wrongly. The latter is expressed by words : vasu (8), fitu (6), bhti (1), mite gat^bde narapativikramato. The second figure has, as is frequently required in dates, to be read twice.
(c) The author's patron was a certain B&j& Chand£uleva Baha- dur, about whom nothing further is known.
(d) Compare F. E. Hall, 1. c, p. 62, 145, 186, 190, 191, and particularly p. 185» El^ondralftl Mitra, Bikanor Catalogue, p. 466.
THE SM?ITIS. 25
the Digest is the one printed at B&pfl Sadasiv's Press, Bombay, 1862.
9. The Dharmasindhu or Dharmasindhusara, by K4stn&- Dharma. tha,(fl) son of Anantadeva, is a very modern book of the same description as the Nirnayasindhu. The author, according to
the Pandits, was a native of Pandarpur, and died about forty or fifty years ago.
10. The word Smriti means literally * recollection/ and is Smiitig. nsed to denote a work or the whole body of works, ( b) in which
the Eishis or sages of antiquity, to whose mental eyes the Vedas were revealed, set down their recollections regard- ing the performance of sacrifices, initiatory and daily rites, and the duty of man in general. The aphorisms on Vedic sacrifices (Srautasiitras), the aphorisms on ceremonies for which the domestic fire is required (Grihyasutras) and the works treating of the duties of men of the various castes and orders (Dharmas&tras, Dharmas^stras,} are all included by the term Smriti. In the common parlance of our days, however, the term has a narrower meaning, and is restricted to the last class of works. Of these there exist, according to the current tradition, thirty-six, which are divided, at least by the Sastris of the present day, into Smritis and Upa- smritis, or supplementary Smritis. Neither the limitation of the number, nor the division is, however, found in the older works on law, such as the Mitak^shara and those books which contain it, do not always place the same works
(a) Prof. Goldsbiicker * On the Deficiencies in the present Ad* ministration of Hindu Law/ App., p. 35, is mistaken in stating that the Editors of the Bombay Digest have invented the abbreviation 'Dharmasindhu.' Pandits of the Mar4thd Country generally use this form, and the Law Officers quote the book under this title. The form Dbarmasindhus&ra finds just as little favour with the learned of Western India, as the full title of Vijfi&nesvara's great commentary, Rijamith&kshu:&, instead of which the abbreviation Mit&ksharft, alone, is current.
(b) Hence the word is sometimes used in the singular aa a collective nomi and sometimes in the plural.
4b
26 AUTHOEITIES ON WRITTEN LAW.^
in the same class, (a) According to BindA views^ the Smritis were mostly composed and proclaimed by the Bishis whose names they bear. Bat in some cases it is admitted that the final arrangement of these works is due to the pupils of the first composers. (6) The Hind^ls are driven to this admission by the circumstance that some times the opening verses of the Dharmasastras contain conversations between the composer and other Bishis, stating the occasions on which the works were composed. In other cases the Smritis are considered to have originally proceeded from gods or divine beings, and to have descended from* them to Bishis, who in their tarn made them known among men. Thus the Vishnu Smriti is ascribed to Vishnu ; and Nandapandita in his commentary suggests that it must have been heard by some Bishi who brought it into its present shape. Or, in the case of the M&nava DharmassLstra, it is asserted that Brahma taught its rules to Manu, who proclaimed them to mankind. But his work was first abridged by Nllrada, and the composition of the latter was again recast, by Sumati, the son of Bhrigu. (c) But, as even such Smritis were proclaimed by men, they partake of the human character, which the Mtmamsakas assign to this whole class of works, and the great distinc- tion between them and the revealed texts, the Veda or Sruti remains.
HindA tradition is here, as in most cases where it concerns literary history, almost valueless. Firstly, it is certain that more than thirty-six Smritis exist at the present time, and that formerly a still greater number existed- Prom the quo- tations and lists given in the Smritis, their commentaries,
(a) Borradaile in Stokes's Hindd Law Books, p. 4, seq.
(h) Mit. Ach&ra la, 13. ** Some pupil of Y&jSavalkya abridged the Dharmas&stra composed by Y&jSavalkya, which is in the form of questions and answers, and promulgated it, just as Bhrigu, that proclaimed by Manu."
(c) See prefSace to N&rada, translated by Sir W. Jones, Institutes of Manu, p. xvi. (ed. Haughton).
THE sM$ms. 27
the Par&nas and the modern compilations on Dharma, as well as firom the MSS. actually preserved, it appears that, counting the varioas redactions of each work, upwards of one hundred works of this description must have been in existence. Their names are: 1, Agni'; 2a, Angiras; 2b, Madhyama- Ang. ; 2c, Brihat-Ang. (two redactions in verse exist, which seem to be different from the treatises quoted) ; 3, Atri (two redactions exist); 4, Atreya; 5a, Apa- stamba (prose, exists) ; 5b, Ditto (verse, exists); 6, Alekhana; 7, Ajsmarathya ; 8a, Asv^ayana (verse, exists) ; 86, Brihat- A. (verse, exists); 9a, Usanas (prose, fragment exists); 95, Ditto (verse, exists); 10, Bishyasringa ; 11, Eka; 12^ Audulomi; 13, Aupajandhani ; 14, Kanva (verse, exists) ; 15, Kapila (verse, exists); 16, Kasyapa (prose, exists); 17a, KSnva; 176, K&nvayana (prose, exists); 18Katya; 19a, Katy&yana (verse) ; 196, Ditto (karmapradtpa, exists) ; 19c, Vriddha K^ty (verse) ; 20, Kdrshnajini; 21a, K&syapa ; 21, Upa-Kelsyapa (prose, exists) (a); 22, Kuthumi; 23, Kanika; 24, Kutsa; 25, Krishnftjini; 26, Kaundinya; 27, Kautsa; 28, G^rgya; 29a, Gautama (prose, exists) ; 296, Ditto (verse, exists); 29c, Vriddha Gaut; 30, Chi- dambara; 31, Chyavana; 32, Chhigaleya; 33, Jamadagni^ 34, Jatukarnya; 35, J&bali ; (6) 36, Datta; 37a, Daksha (verse, exists) ; 376, Ditto (quoted) ; 38, Ddlbhya (verse> exists); 89a, Devala (verse, exists); 396, Ditto (quoted); 40, Dhaumya; 41, Ndchiketa; 42, N&rada (verse, vyava* liEira-section exists); 43a, Parasara (verse^ exists); 436, Brihat Par. (verse, exists) ; 44, Pdraskara; 45, Pit4maha; 46a, Palastya; 466, Laghu Pul; 47, Pulaha; 48, Paithinasi; 49, Paushkaras&di or Pushkaras&di ; 50a, Prachetas ; 506, Laghu. Prach. ; 51, Prajapti (verse, exists) ; 52, Budha (prose, exists) ; 53a, Brihaspati (verse, part exists) ; 536, Brihat Brihaspati ; 54, Baudhiiyana (prose, exists) ; 55, Bharadvaja (verse, exists); 56, Bhrigu (said to exist) -, 57a,
[a) Bumell, Tanjor Cat., p. 124.
(b) Sometimes spelt Jftb&la.
23 AUTHORITIES ON WRITTEN LAW.
Manu (prose, quoted) • 576, Ditto (verse, exists) ; 57c, Vriddha M.; hid, Brihat M.; 68, Marichi; 59, Mdrkandeya; 60, Maudgalya; 61a, Yama; 616, Laghu Y. (verse, exists); 62a, Yajiiavalkya (verse, exists) ; 626, Vriddha Y. ; 62c, Brihat Y. (exists) ; 63, Likhita (verse, exists) ; 64, Lohita (verse, exists) ; 65, Laugakshi ; 66, Vatsa ; 67a, Vasishtha (prose, exists) ; 676, Ditto (verse, exists) ; 67c, Ditto (verse, exists) ; 67ri, Vriddha V. ; 67e, Brihat V. ; 68, Vllrshy^yani; 69, Visv^-mitra (verse, exists) ; 70a, Vishna {prose, exists); 706, Lagha V. (verse, exists) ; 71, Vy&ghra; 72, Vyaghrapftda (verse, exists); 73a, Vy&sa; 736, Lagha Vy. (verse, exists) ; 73c, Vriddha Vy. ; (verse, exists) ; 74a, Sankha (prose) ; 746, Ditto (verse, exists); 74c, Brihat or Vriddha S. ^chiefly verse, exists) ; 75, Saiikha, and Likkita (verse, exists); 76, S&kat4yana; 77, S&kalya (verse, part exists); 78, S4nkh4yana (verse, part exists); 79, S&tyayana; 80, S&ndilya (verse, exists) ; 81a, S^tatapa (verse, exists) ; 816, Vriddha or Brihat S. (verse, exists); 82a, Saunaka (pros6) ; 826, Ditto (karika or brihat, verse, exists) ; 82c, Ditto YajMnga (verse, exists) ; 83a, Saihvarta (verse, exists); 836, Lagha S. ; 84, Satyavrata; 85, Samantu; 86, Soma; 87a, Hdrita (prose) ; 876, Brihat H. (verse, exists); 87c, Lagha H. (verse, exists) ; 88a, Himnyakesia (prose, exists), (a)
Even this list most likely does not comprise all the an- cient works on Dharma, and a more protracted search for
(a) All those Smritis, to which the word * exists' has been added, have been actually procured. The remainder of the list is made up from the authorities qooted in Wh. Stokes's Hindu Law Books, p. 5^ note (a) in the Apastamba, Baudh&yana, Yasishtha Dharmasdtras, in the Mddhava Par4sara and other modern compilations. Owing to the looseness of the Hindu Pandits in quoting, it is not always certain if the redactions, called Vriddha (old) and Brihat (great) had a separate existence. In some cases the same book is certainly designated by both. Collections of Smritis, and extracts from them, such as the Chaturvimsati, S hat trim iat, Kokila and Saptarshi Smritis have been intentionally excluded from the above list.
THE SMRITIS. 29
MSS., and a more accurate investigation of the modern compilations, will, no donbt^ enlarge it considerably.
As regards the value of the Hindft tradition about the origin and history of the Smritis, the general assertion that these works belong to the same class of writings as the Srauta and GnhyasAtras, and that in many instances they have been composed by persons who were authors of such Sufcras, is in the main correct. But the tradition is utterly nntraatworthy in the details regarding the names and times of the authors, and the immediate causes of their composi- tion, and it neglects to distinguish between the various dasses, into which the Smritis must be divided.
It is, of course, impossible for the critic to agree with the Hindft in considering Vishnu or any other deity of the Brahmanic Olympus, or Manu, the father of mankind, as authors of Dharmasastras. But it is, in most cases, also highly improbable that the Rishis, who may be considered historical personages, composed the Smritis which bear their names. For, to take only one argument, it is not to be believed, that, for instance, Vasishtha and Visvamitra, the great rival priests at the court of King Sud&s, or Bharadvaja or Samvarta, are the authors of the hymns preserved in the Bigveda under their names, and of the Smritis called after them, as the language of the former differs from that of the latter more considerably than the English of the fifteenth century from that of the present day. Much less can it be credited that Angiras or Atri, who, in the Rigveda, are half mythic personages, and spoken of as the sages of long past times, proclaimed the treatises on law bearing their names^ the language of which obeys the laws laid down in Panini'a grammar. Nor can we, with the Hind As, place some of the Smritis in the Satyayuga, others in the Tret&, others in the Dvlap&ra, and again others in the Kali s,ge.{a) The untrust- worthiness of the Hindii tradition has also been always recog- nised by European scholars, and, in discussing the age and
(o) Ihis division is found in Par/iSara Dharmas&stra I., 12.
30 AUTHORITIES ON WRITTEN LAW.
history of the Smritis they have started from altogether different data. In the case of the Mftnava and of the Tajfia* valkya Dharmasftstras, Sir W. Jones, Lassen, and others have attempted to fix their ages by means of circamstantisJ, and still more, of internal evidence, and the former work has been declared to belong perhaps to the ninth century, B.C. (a) or, at all events, to the pre-Baddhistic times, whilst the latter is assigned to the period between Buddha and Vikra- m&ditya.(&) But the bases on which their calculations and hypotheses are grounded are too slender to afford trustworthy results, and it would seem that we can hardly be justified in following the method adopted by them. The ancient history of India is enveloped in so deep a darkness, and the indica- tions that the Smritis have frequently been remodelled and altered, are so numerous, that it is impossible to deduce the time of their composition from internal or even circum- stantial evidence, (c)
(a) Sir W. Jones, Mano, p. xv
(b) Lassen, Ind. Alt. II., 310.
(c) A statement of the case of the M&nava Dharmas&stra will suffice to prove this assertion. Tradition tells us that there were three redactions of Manu,— -one by Manu« a second by N&rada, and a third by Sumati, the son of Bhrigu, and it is intimated that the Dharma- s&stra, proclaimed by Bhrigu, and in our possession, is the latter redaction. Now this latter statement must be incorrect, as the Sumati's S&stra contained 4,000 Slokas, whilst ours contains only 2,885. Sir W. Jones, therefore thought that, as we find quotations from a vyiddha or ** old " Manu, the latter might be a redaction of Bhrigu, a conjecture for which it would be difficult to bring forward safe arguments. Besides the Vriddha Manu, we find a Brihat- Manu, " great Manu," quoted. Further, Manu VIII., 140, quotes Yasishtha on a question regarding lawful interest, and this rule is actually found in the V&sishtha Dharmas^stra, (last verse of chapter II). But nevertheless the V&sishtha Dharma^&stra quotes four verses from Manu (mdnav&n 6lok&n), two of which are found in our M&navadharmas&stra, whilst one is written in a metre which never occurs in our Sazhhit^. Besides, the Mah&bh&rata and Yar&hamihira, who lived in the sixth century, a. d., quote verses from Mana which are only found in part in our Dharma^&stra. See Stenzler in the Indische Studien I., p. 245, and Kern Brihatsamhitft, preface, p. 43.
THE SM?ITIS. 31
Of late, anotlier attempt to fix the age of the Dharmasastras, at least approximately, and to trace their origin, has been made, by Professor M. Mutler. According to him, the Dhar- masastras formed originally part of those bodies of SAtras or aphorisms in which the sacrificial rites and the whole dnty of the twice-born men is taught, and which were committed to memory in the Brahminical schools. As he is of opinion that all the Sfltras were composed in the period from 600 — 200 B. C.9 he, of course, assigns Dharmas&stras in SAtras or Dharmasfttras to the same age, though he states his belief that they belong to the latest productions of the period during which the aphoristic style prevailed in India, (a) He moreover considers the Dharmas&stras in verse to be mere modem versifications of ancient DharmasAtras. Thus he takes the M^nava Dharmasdstra not to be the work of Manu, bat a metrical redaction of the Dharmasiitra of the Manavas, a Brahminical school studying a peculiar branch or Sakha of the Black Yajurveda. This view of the origin of the Smriti literature was suggested chiefly by the recovery of one of the old Dharmasfttras, that of Apastamba, who was the foander of a school studying the Black Yajurveda, and author,' also, of a set of Srauta and GrihyasAtras.
The results of our inquiries in the main agree with those of Professor Miiller, and we hope that the facts which, through the collection of a large number of Smritis, have come to Hght, will still more fully confirm his discovery, which is of the highest importance, not only for the Sanskrit student, hut also for the lawyer and for the EUndA of our day, who wishes to free himself from the fetters of the ^chdra.
We also divide the Smritis into two principal classes, the Siltras and the metrical books. In the first class we distin-
(a) SccM.MuUer's Hist, of Anc Skt. Lit., pp. 61, 132, 199, 206—208, and his letter printed in Moriey's Digest and Sacred Books, vol II., p.lx. That Siitras, especially the Grihyasfttras, were the sources oi the Smfitis, was also stated by Professors Stenzler and Weber in the first Yolume of the Indische Studien.
82 AUTHOEITIBS ON WRITTEN LAW.
guish between those DharmasAtras which still form part of the body of Sdtras studied by a Charai^ or Brahminical school, those which have become isolated by the extinction of the school and the loss of its other writings, those which have been recast by a second hand, and finally those which appear to be extracts from or fragments of larger works.
The second class, the poetical Dharmaselstras, may be divided into —
1. Metrical redactions of Dharmasfltras and fragments
of such redactions.
2. Secondary redactions of metrical Dharmasastras.
3. Metrical versions of Grihyasutras.
4. Forgeries of the Hindi sectarians.
As regards the DharmasAtras, it will be necessary to point out some of the most important facets connected with the history of the ancient civilization of India^ in order to make the position of these works in Indian literature more intelligible. The literary and intellectual life of India began, and was, for a long time, centred in the Brahminictd schools or Charanas. It was from the earliest times the sacred duty of every young man who belonged to the twice-born classes, whether Brahman, Kshatriya, or Vaisya, to study for a longer or shorter period under the guidance of an dcharya> the sacred texts of his S4kh& or version of the Veda. The pupil had first to learn the sacred texts by heart, and next he had to master their meaning. For this latter purpose he was instructed in the auxiliary sciences) the so called Angas of the Veda, phonetics, grammar, etymology, astronomy, and astrology, the performance of the sacrifices, and the duties of life, the Dharma.
In order to fulfil the duty of Vidy&dhyayana, studying the Veda, the young Aryans gathered around teachers who were famous for their skill in reciting the sacred texts, and for their learning in explaining them ; and regular schools were established, in which the sacred lore was handed down from
THE SMRITIS. 33
one generation of papils and teachers to the other. We still possess long lists which give the names of those ach^ryas who SQccessively taaght particular books. These schools divided and subdivided when the pupils disagreed on some point or other, until their number swelled, in the course of time, to an almost incredible extent. If we believe the Charana- vjAha, which gives a list of these schools or Charanas, the Brahmans who studied the 8&maveda were divided into not less than a thousand such sections.
The establishment of these schools, of course, necessitated the mvention of a method of instruction and the production of manuals for the various branches of science. For this puq)ose the teachers composed SAtras, or strings of rules, which gave the essence of their teaching. In the older times these Sfttras seem to have been more diffuse, and more loosely constructed than most of those works are, which we now possess. Most of the Sutras, known to us, are of a highly artificial structure. Pew rules only are complete in themselves ; most of them consist of a few words only, and must be supplemented by others, whilst certain general rules have to be kept constantly in mind for whole chapters or topics* The Stitras are, however, mostly inter- spersed with verses in the Anushtubh and Trishtubh metres, which partly recapitulate the essence of the rules, or are intended as authorities for the opinions advanced in the Sutras,
Each of the Charanas seems to have possessed a set of such SAtras. They, originally, probably, embraced all the Angas of the Veda, and we still can prove that they certain- ly taaght phonetics, the performance of sacrifices, and the Dharma or duties of life. We possess still a few Pratisd- khyas, which treat of phonetics, a not inconsiderable number of Srauta and GrihyasAtras, and a smaller collection of Dharmasutras; Three amongst the latter, the S A tras of Apas- tamba,ofSatyasbadhaHiranyakesin, and of Baudhftyana, still form part of the body of SAtras of their respective schools. 5h
34 AUTHORITIES ON WBITTEN LAW.
In the cases of the Apastamba- and Hiranyakesi-Sutras, the connection of the portion on Dharma with those referring to the Srauta and Grihya sacrifices appears most clearly. The whole of the Siitras of the former school are divided into thirty Prasnas or sections, among which the twenty-eighth and twenty-ninth are devoted to Dharma. (a) In the case of the Hiranyakesi-S{itras, the twenty-sixth and twenty-seventh of its thirty-five Prasnas contain the rules on Dharma. As no complete collection of the SAtras of the Baudhayana school is as yet accessible, it is impossible to determine the exact position of its Dharmasfttra.(Z/) All these three books belong to schools which study the Black Yajurveda. The first and second agree nearly word for word with each other. Among the remaining Dharmasiltras, those of Gautama and Vasish- tha stand alone, being apparently unconnected with any Vedic school. But, in the case of the Gautama Dharmasfitra we have the assertion of Govindasvamin, the commentator of Baudhayana, that the work was originally studied by the Chhandogas or followers of the Samaveda. ' Moreover, its connection with that Veda has been fully established by in- ternal evidence, and it is highly probable that, among the adherents of the Samaveda, one or perhaps several schools of Gautamas existed, which also possessed SrautasAtras. The obvious inference is that our Gautama Dharmasiitra formed part of the Kalpa of one of these sections of Samavedls,(c) In the case of the Vasishtha DharmasAtra it is clear from the passage of Govindasvamin, referred to above, that it originally
(a) Compare Burnell Indian Antiquary I., 5-6 ; Sacred Books of the East, vol. II., pp. XI.— XY.
{b) The Baudb&yana Dharma sAtra seems to have suffered by the disconnection of the whole body of the Kalpas of that school, and has been considerably enlarged by later hands. See Sacred Books, vol. XIV., Introd. to Baudhayana.
(c) For the details of the arguments which bear on this question, see Sacred Books of the East II., XLI.— IX.
THE SMRITIS. 35
belonged to a school of Rigvedis. (a) Though it has not yet been possible to determine the name of the latter with certainty, it is not improbable that it may have been called after the ancient sage, Vasishtha, who plays so important a part in the Rigveda. It is, however, hardly doubtful that a considerable portion of our Vasishtha Dharmasutra has been recast or restored aftor an accidental mutilation of the ancient MSS.(Z>) while Gautama has probably suflFered very little, (c)
As regards another DharmasAtra, the so*called Vishnu- smriti, which formerly was considered to be a modern recen- sion of a Vishpusiitra, further investigations have shown that it is a somewhat modified version of the Dharmasiltra of the Katha school of the Yajurveda. The first information on this point was furnished by a Puna Pandit, Mr. Datar, whose opinion was subsequently confirmed by the statements of several learned Sastrls at Benares. (d) The recovery of the Kathaka Grihyasutra in Kasmlr, and a careful comparison of its rules with those of the Vishnusmriti, as well as of the mantras or sacred formulas prescribed in tho.Smriti, with the text of the Ktlthaka recension of the Yajurveda, and with those given by Devap&la, the commentator of the Grihya- sfttra, leave no doubt as to the correctness of the tradition preserved by the Pandits. (e) It is now certain that the Vishnusmriti on the whole faithfully represents the teaching of the Katba school on dharma, the sacred law. The por- tions which have been added by the later editor, who wished to enhance the authoritativeness of the work by vindicating
(a) Sacred Books, II., XLIX. The older theory that the work belonged to the S&maveda is, of coarse, erroneous.
(b) Sacred Books, XIV. Introdaction to Dr. Biihler's translation of the Vasishtha Dharma^&stra.
(c) Sacred Books, II., LIV.
(d) Journ. Bo. Br. Roy. As. Soc. XII., p. 36 (Supplement, Report on Ka^mtr).
(e) See Jolly, Das Dharmastitra des Vishnu uud das iCAtbaka- grihyasatra, and Sacred Books VIT., X.— XIII.
86 AOTHOBITIES ON WRITTEN LAW.
a sacred character to Vishnu^ are tbe first and last chapters and various isolated passages^ chiefly verses^ in the body of the book which enjoin bhakti or devotion to Vishnu or amplify the prose portions, (a)
There are finally the Eanv&yana, Easyapa and Bndha DharmasilstraSy small treatises in sfttras or aphorisms^ which refer to portions only of the sacred law. By their style and form they nndonbtedly belong to the Dharmasfttras. But it would seem that they are extracts from or fragments of larger works. In the case of the Usanas DharmaslLstra this is certain^ as we meet in the medieval compilations on law, with numerous quotations from the Usanas SQtras, which refer to other topics than those treated in the chapters now extant. It is^ however^ not dear to what Veda or school these books originally belonged.
As may be seen from the translations of the five Dhar- masAtras, published in vols. II., VI I., and XIV. of Professor M. Mulleins Sacred Books of the East, these works treat the Dharma much in the same manner as the metrical law books, e.g., those of Mann and T&jnavalkya. But they are not, like some compilations of the latter class, divided into sec- tions on &ch4ra, ' the rules of conduct,* vyavahara, ' civil and criminal law,' and prayaschitta, * penances.' They divide the sacred law into varnadharma, *the law of castes,' &sramadharma» ^ the law of orders,' yarn^isramadharma, ' the law of the orders of particular castes,' gunadharma, ^ the law of persons endowed with peculiar qualities' (e. g. kings), nimittadharma, ' the law of particular occasions' (penances), and so forth, exactly in the manner described by Vijna- nesvara in the beginning of the Mit&kshara. (b)
The order in which the several topics follow each other, is, however, not always the same.
The materials out of which the DharmasAtras have been constructed, are, besides the opinions of the individual
(a Sacred Books VII., XXIX.— XXXI.
(b) Mit&k8har& I. A. 7.
THE SM5ITIS. 37
authors^ passages from Uie Yedas qaoted in coDfirmation of the doctrines adyanced^ mles given by other teacners which are also considered anthoritative or are controverted^ and maiims which were generally received by the Brahminical commanity. These maxims contain that which had been settled by samaya, the agreement of those learned in the law (dbarmajna). Hence the DharmasCltras are also called S4may&chikrika SAtras^ i.e., aphorisms referring to the rule of condact settled by the agreement (of the S(shtas). The passages, containing such generally approved maxims, are frequently in verse, and introdaced by the phrase atb&pyn* diharanti, 'now they quote also/ Numerous verses of this kind recur in nearly all the DharmasAtras. All the SAtras, with the exception of those attributed to Gautama, Budha and K^vayana, which are written throughout in prose, are, besides, interspersed with other slokas or g&thsls, as they are sometimes called, which partly are attributed to schools or individual authors, such as the BhdlUvins, H^rtta, Yama, Praj&pati, Manu and others, and partly have been inserted by the writers of the SAtras in order to sum up the substance of the doctrines taught in the preceding prose portion. The introduction of slokas is found not only in the DharmasAtras, but also in the Grihya and Srauta SAtras, nay even in the Br&hmana portions of the Veda, where se- veral of the verses, read in the Dharmasfttras, occur. The same verses, too, recur in great numbers in the metrical Smritis, and they contributed, as we shall show presently, a good deal to the rise of the latter class of works.
As regards the age of the DharmasAtras, they are mostly each as old as the school to which they belong, and conse- quently possess a very considerable antiquity. The existence of Dharmasfttras is expressly testified by Patanjali, the author of the famous commentary on Panini, who wrote in the second century b. c. (a) As Taska, the author of the
(a) Weber, Indisohe Studien I., 143 ; XIV., 468. Mah&bh­a (ed. Kielhom) I. 115 and I. 5 where Stltras on permitted and for- bidden good are quoted.
38 AUTHORITIES OR WRITTEN LAW.
Nirukta, who belongs to a much remoter age than Patanjah', quotes a number of rules on the civil law in the Sfttra style, it may be inferred that DharmasAtras existed in his time too. {q) But, of course, this does not prove anything for the age of the particular DharmasAtras which have come down to us. Regarding them we learn from the Brahminical tradition which in this case is confirmed by other evi- dence, (h) that among the three Sutras connected with the Taittiriya Veda, Baudh&yana is older than Apas- tamba and Hiranyakesin Saty^shadha. Among the latter two Apastamba is the older writer, as is shown by the modern tradition of the Pandits, and by the fact that the Hiranyakesi-Dharmasutra, which agrees almost literally with Apastamba's workj is clearly a recast of the latter. Further, the quotations from Grautama and the unacknow- ledged appropriation of several lengthy passages of Gautama, which occur in the SAtras of BaudhSyana and Vasishtha, show that Gautama is older than both, and, in fact, the oldest DharmasAtra which we possess, (c) As regards the absolute determination of the age of the existing SAtras, the school of Apastamba, or, Apastambha, as the name is also spelt, is mentioned in inscriptions which may be placed in the fourth century a, d. (rf) The ApastambasAtras on sacrifices, together with a commentary, are quoted in Bhartrihari's gloss on the Mahabhashya, which, as Professor Max Muller has discovered, was composed in the seventh century a. d. (e) The oldest quotations from the Apastamba Dharmasutra occur in the Mitakshara, the date of which has been shown to be the end of the eleventh century a. d. From internal evidence it would, however, appear that -the* Apastamba Dharmasutra
(a) Yaska, Nirukta I., 3.
(6) Sacred Books II.. XXII.— XXIV.
(c) Sacred Books II., XLIX.— LIV.
id) Sacred Books II., XXXIII.
{e) MS. Chambers, 653, fol. 10&. (Berlin Collection).
THE SMglTIS. 39
cannot be younger than the fifth century b. c. (a) If that is 80, the works of Baudhayana and Gautama must possess a much higher antiquity. It is of some interest for the practical lawyer to know that four of the existing Dharmasfltras, those of Gautama, Baudh&yaua, Apastamba and Hiranyakesin, have been composed in the South of India, while the fifth, Vasishtha, probably belongs to the North.
The original of the remodelled Kathaka Dharmasutra or Vishnu Smriti was probably composed in the Panjab, the original seat of the ancient Katha school, and, no doubt, dates from very remote times. (6) The existing recension, the Vishnu Smriti cannot be older than the third century A. D. For in chapter 78, 1-7, the week days are enume- rated, and the Thursday is called Jalua, i. e., the day of Jiva. Jlva is the usual Sanskrit corruption of the Greek ^^, or rather of its modern pronunciation Zcfs (Zevs). Whatever the origin of the Indian week may be, there can be no doubt that a Sanskrit work which gives a Greek name for a week-day cannot be older than the time when these names came into use in Greece, (c)
Among those Smritis which are quoted, but no longer preserved entire, there were probably many Dharmasutras. In most cases, however, especially in those where the quotations occur in the old Dharmasutras, it is difiicult to decide, if the opinions attributed to the ancient, authors, are given in their own words, or, if the quotations merely summarise their views. But, in a few instances, it is possible to assert with some confidence that the works quoted really were Dharmasfttras and written in aphoristic prose, mixed with verses. This seems certain for that Manava Dharmasastra, which Vasishtha repeatedly quotes, for the work of Harita, which Apastamba, Baudhayana and Vasishtha cite, and for the Sankha Smriti
(a) Sacred Books YH,, XIV.— XV. (6) Sacred Books VII., XIV.— XV. (c) Sacred Books VII., XXIX., XXXII.
40 AUTHORITIES ON WRITTEN LAW.
to which the medieval compilators freqaently refer» Abont Mana more will be said below. As regards H&rtta there is a long passage in prose^ attribated to him by Baudhdyana and by Apastamba (a) which looks like a verbal qaotation^ while Yasishtha II., 6^ quotes a verse of his* It has long been known that Harita was a teacher of one of the schools connected with the Black Yajurveda. A quotation from his Dharroa* sAtra» given by the Benares commentator of Yasishtha (XXIY., 6), indicates that the particular school to which lie belonged was that of the Maitrdyanlyas.
As regards the third work^ the DbarmasHstra of Sankha, our knowledge of its character is not derived from quotations alone. We still possess a work which is partly an extract from and partly a versification of the old Smriti. Among the now current Smritis^ there is Brihat Sankha^ or^ as it is called in some MSS., a Vpiddha Sankha, consisting of eighteen chapters, which treat of the rule of conduct (dchftra) and penances (prayaschitta). The whole work is written in verse, with the exception of two chapters, the twelfth and thirteenth, where prose and verse are mixed. A comparison of thQ passages from the Sankha Smriti, quoted by Yijn^nesvara in the Pr^yaschittak&nda of the Mitaksharii, with the corre- sponding chapters of the existing Brihat Sankha, shows that tha latter contains nearly all the verses of the work which Vijiianesvara had before him, while the Sfttras have either been left out, or in a few instances, have been changed into verses. (6) As at the same time our Brihat Sankha does not contain anything on civil law which, according to the quota- tions in the Mitakshard and other works, was treated of in the old Sankha Smriti, it appears that the existing work is not even a complete extract. But, nevertheless, it possesses
(a) Apastamba I., 10, 29, 13-14.
{b) The verses identified are YijSdnesvara on YAjS. III. 260- B. 6. XVII. 16—36; on Y&jaill. 293 =»B. 6. XVII. 466— 47a, 4Sb-4&a and606-51a; on Y&jit. III. 294- B. ^. XVII. 43a. 376, 38a, 39a; on Yajfi. III. 309 = B. iS. XII. 7-9.
THE SMRITIS. 41
great interest, as it clearly shows how the metrical law- books arose out of the Sfttras. In the classification of the Smritis, a place intermediate between the DharmasAtras and the metrical Smritis must be assigned to the Brihat Sankha.
In the first division of the second class of Smritis to which the metrical versions of Dharmasfttras have been assigned, we may place the works, now attributed to Mann and to Y4jnavalkya, and perhaps those of Parasara and Saihvarta as well as the fragments of Nirada and Brihaspati. The first two among these works begin, like many other metrical Smri- tis, with an introduction in which the origin of the work is described, and its composition or rather revelation is said to have been caused by the solicitations of an assembly of Rishis. In the case of the Manu Smriti this exordium has been excessively lengthened by the introduction of philoso- phical matter, and has been so much expanded that it forms a chapter of 119 verses. Moreover, the fiction that the book is being recited, is kept up by the insertion of verses in the middle of the work, in which the conversation between the reciter and the sages is again taken up, while in the Y^jnavalkya Smriti the Rishis in the last verses are made to praise the rules promulgated by the Yogin. This kind of introduction which the metrical Smritis have in common with the Pur^nas, M&hdtmyas, the sectarian Upani- shads and the forged astronomical Siddhintas, though based on the ancient custom of reciting literary productions at the festive assemblies of the Pandits, the Sabhas of our days may be considered as a sign of comparatively recent com- position. For most of the works, in which it occurs, have been proved to be of modern origin, or to have been re- modelled in modem times.
Another reason to show that the metrical Dharmasastras are of modem date has been brought forward by Professor Max Muller.(a) He contends that the use of the Indian
(a) Hist. Anc. Lit., p. 68. 6 H
42 AUTHOEITIES ON WRITTEN LAW.
heroic metre^ the Anashtnbh slokayin which they are written, belongs to the age which followed the latest times of the Vedic age^ the Siitra period. Professor Goldstiicker has since shown (a) that works written throughout in slokas, existed at a much earlier period than Professor Muller supposed; in fact long before the year 200 b. c, which Professor Muller gives as the end of the Sutra period. Still it would seem that we may avail ourselves of Professor Miiller's arguments in order to prove the late origin of the metrical Smritis. For, though the composition of works in slokas and of Sfltras may have gone on at the same timO) nevertheless^ it appears that in almost every branch of HindA science where we find text books^ both in prose and in verse> one or several of the former class are the oldest. If we take^ for instance^ the case of grammart the Samgraha of Vy^i> which consisted of one hundred thousand slokas^ is certainly older than the SAtras of Vopadeva^ Malayagiri and Hemachandra^ authors who flourished in the twelfth century a, d. But we know that in its turn it was preceded by the works of Sdkat^yana^ P4nini and others who composed Sfltras. In like manner the numerous Kelrikas on philosophy are younger than the Sfltras of the schools to which they belong, just as the Samgrahas, Pradipas and Parisishtas are mostly of more recent date than the Sfltras on Srauta and Grihya sacrifices, which they illustrate and supplement. For all we know, the Grihyasamgraha of Gobhilaputra, or the Karma- pradipa of K&dy^yana may be older than the Grihyasfltras of P&raskara or Asvalayana, but both are of later date than the Grihyasfltra of Gobhila which they explain, and the Pradlpa is younger than the writings of Vasishtha, the founder of the Vasishtha school of Samavedis, whose Sr&d- dhakalpa it quotes. In short, we never find a metrical book at the head of a series of scientific works, but always a Sfltra, though, at the same time, the introduction of metrical hand-
(a) M&nayakalpasiltra, p. 78.
1
THE SM?ITIS. 43
books did not pnt a stop to the composition of Sfttras. (a) If we apply these resalts to the Smirtis, it would seem pro- bable that Dharmasastras^ like those ascribed to Mann and Yijnayalkya^ are yonnger than the Sutras of the schools to which they belongs though^ in their tnrn^ they might be older than the Sfitra works of other schools.
The opinion that the metrical Smritis are versifications of older SAtra may be supported by some other general reasons. Firstly, if we take off the above-mentioned intro- dactions, the contents of the metrical Dharmasastras, entirely agree with those of the Dharmasfitras^ while the arrangement of the subject-matter differs only slightly, not more than the Dharmasfttras differ among themselves. Secondly, the lan- guage of the metrical Dharmasastras and of the Siitras is nearly the same. Both show archaic forms and in many instances the same irregularities. Thirdly, the metrical Smritis contain many of the slokas or gdth^s given in the Dharmasfltras, atid some in a modified more modern form. Instances of the former kind are very numerous. A comparison of the g&th&s from Vasishtha, Baudh^yana and Apastamba with the Manu Smriti shows that a considerable number of the former has been in- corporated in the latter. As an instance of the modernisation of the form of ancient verses in the metrical Dharmasastras, we may point out the passage in Manu II., 1 1 4-1 1 6, containing the advice given by Vidy^, the personification of sacred learn- ing, to a Brahman regarding the choice of his pupils, which is clearly an adaptation of the Trishtubh verses, found in Nirakta II., 4, Vasishtha II., 8-9, and Vishnu XXIX., 10. Another case where Manu has changed Trishtubh verses into Anushtubhs occurs II., 144, where the substance of Vasishtha II«, 10, has been given. Finally, the fact that several pecu- liarities of the Sfttra style are, also, found in the metrical Smritis, affords a strong presumption that the latter draw
(a) The most modem Stltra of which I know, is a grammar of the Kaamtrian language in Sanskrit aphorisms, which in 1875 was not quite finished.— G. B.
4-4 AUTHORITIES ON WRITTEN LAW.
their origin from the former. As the great object of Sfltra writers was shortness, in order that the pupils in their schools might, by learning as few words as possible, be able to remember the more explicit teaching of the masters, they invented a peculiar and very intricate system for arranging their subjects, according to which certain funda- mental rules have constantly to be kept in mind, and, certain important words given once in the main rule, have to be understood with a long string of succeeding ones. Besides, they use certain words, especially particles, in a peculiarly pregnant sense, which is unknown in the common language. All these peculiarities occur in the metrical Smritis also. Every body who has read Manu in Sir W. Jones's translation, will know how frequently the text is expanded by the addition of words, printed in italics, without which it would be either unintelligible or self-contradictory. Students of the Mitakshari, moreover, will remember how consider- able the additions are which Vijiianesvara is obliged to make in order to render Yajiiavalkya's rules intelligible. This cramped and crabbed style of the metrical Smritis finds an easy explanation if their derivation from the SAtras is admitted. Without such a supposition it is diflScult to account for. the fact. As regards the peculiar meanings in which particles are used, it will be sufficient to point out that the particle cha ^and,' as well as chaiva * likewise,^ in the Yfijiiavalkya Smriti repeatedly are intended to include something that is known from other sources, but not specially mentioned in the text. Thus Y^jnavalkya II., 1 35, the particles chaiva * likewise ' which follow in the enumeration of heirs to a separated male deceased without leaving sons, indicate, according to the very plausible explanation of the Mitakshani, that the daughter's son must be inserted after the daughter, (a) Similar eccentricities of language occur frequently in the Sutras where ^ the saving of
(a) Stokes's Hindd Law Books, p. 441. For similar cases, $ee the Sanskrit text of the Mit&kshar&, 16, 12 ; 26 a 1 and pasHm.
THE SM?ITIS. 45
Lalf a short vowel is considered as joyful an event as the birth of a son/ If they are found in the metrical Smritis, too, the probable reason is that they are remnants of the style of the works on which the metrical Smritis are based.
If we turn from these general considerations to the particular books, placed in the first class of metrical Smritis, we find that -several facts^ -connected with the DharmasAstras, attributed to Manu and Y&jnavalkya, further corroborate the views expressed above. As regards Manu, Professor Max MUller(a) conjectured as long ago as 1849 that the existing Smriti, attributed to the son of Brahman Svayambhu, was a modern redaction of a lost Dharmasutra, belonging to the Ma- nava school, a subdivision of the Maitr&yantyas, (h) who study a peculiar version of the Yajurveda. One portion of this conjecture has been fully confirmed. Owing to the dis- covery of trustworthy MSS, of the Vasishtha Dharmasfltra, it is now possible to assert with confidence that Vasishtha IV., 5 — 8, quotes a Mdnavam, i e. a work proclaimed by Manu, which was written, like most of the DharmasAtras, partly in prose and partly in verse. In the note of the translation on the above passage (c) it has been pointed out that Vasishtha gives two SAtras (5 and 8) and two verses (6 — 7) tiiken from a M^nava Dharmasutra. At the end of the first Sutra the unmistakeable words iti mnnavam, 'thus (says) the manava' are added. The first of the following verses (6), which is marked as a quotation by the addition of the word iti, * thus,' is found entire in the existing Manu Smriti. The second (7) has been altered so as to agree with the ahimaa doctrine which forbids the slaughter of animals under any circumstances, while the verse, quoted by Vasishtha, declares ' the slaughter of animals at sacrifices not to be slaughter' (in the ordi-
(a) Letter to Mr. Morley, Sacred Books 11, p. IX.
(6) See L. von Schroeder*8 edition of the Maitr&yani Samhitd.
(c) Sacred Books XIV., p. 26.
46 AUTHORITTES ON WRITTEN LAW.
nary sense of the word). This discovery famishes a firm basis for Professor Miiller's opinion that the existing Manu Smriti is based on a Dharmasiitra) and makes it a good deal more than an ingenious speculation. The other half of his proposition that the M&nava Dharmasfttra on which the metrical Smriti is based, originally belonged to the school of the Minavas, can, as yet, not be proved with equal certainty. For, though the orautasAtra and the Grihya- sutra of the M&navas have been recovered, and though these works are distinctly ascribed by the tradition of the school to a human teacher, called Manu or M^nava, (a) the Dharma- sfttra has not yet been recovered, and no clear proof has been furnished that the teaching of the Manu Smriti regard- ing the ritual closely agrees with that of the Sdtras of the Mdnava school. Nevertheless, Professor Miiller's suggestion seems very probable. On the question when the Manava Dharmasiitra was turned into a metrical Smriti very little can be said. From the times of Medhatithi, the oldest commentator known to us, who certainly cannot have lived later than in the 9th century, a. d., the text has not undergone any great change. But the earliest quotation from a metrical Manusmriti which occurs in the Brihatsamhit^ of Var&hamihira (died 580, A. d.) differs very considerably from the text known to us. (6) It would, however, be dangerous to infer from this fact that the existing metrical law book dated from a later time than Var^himira, because, firstly, several metrical works ascribed to Manu SvlLyambhuva or to his pupils seem to have existed, and, because inscriptions of the 4th century a. d., when speaking of the Smritis, invariably place Manu first, (c)
(a) Both forms occur in the commentary on the GrihyasOtra, which probably belongs, like that of the Srautastltra, to the ancient Mim6m- saka, Kum&rila.
(6) Kem, Brihatsaihhit&, p. 43.
(c) See, e.g., the descnption of Mah&r&ja Dronasimha on the plates of Dhruvasena I. of Valabhl, dated 207 and 216 ; Indian Antiquary IV. 106, Y. 205.
THE SM?ITIS. 47
and thereby indicate the existence of a law book which possessed greater or more general anthoritativeness than would belong to a simple school book studied and reverenced by the title M^nava Charana alone.
In the case of the Y&jnayalkya Smriti^ it is possible to determine with perfect exactness the Vedic school to which its original belonged. Bat^ hitherto^ no trace of the actaal existence of the Dharmastitra has been found. As regards the former point, Tijnavalkya is known to have been the founder of the school of the VSyasaneyins, who stady the White Yajurveda. In the Smriti III., 110, it is expressly stated that its author is the same Y&jnavalkya, to whom the Sun revealed the Aranyaka, i. e. the Brihad^ranyaka, which forms part of the Brilhmana of the V4janeyins, the Satapatha. On accoont of this assertion, and becaase a number of the Mantras or sacred formulas, the use of which is prescribed in theT&jnavalkya Smriti for various rites (a) have been taken from the V&jasaneyi-Samhit& of the White Yajurveda, it is highly probable that the Sutra on which the Smriti is based, belonged to one of the Charanas in which the V&jasaneyi- S4kha was studied. Possibly the lost Sfltra may even have been composed by the founder of the V^jasaneyi-Oharana himself.
As regards the Parasara and Samvarta Smritis and the fragments of Brihaspati and N4rada, it is, at present, not possible to say to what Vedas or schools they or their origi- nals belonged. But a verse of Brihaspati which Nandapan- dita quotes in elucidation of Vishnu IV. 9, shows that the
(a) See, e,g., Y&jS. I. 229= Vaj. Saiiih. VH. 34 ; Y&jS. I. 231 = Vaj. Saifah. XIX. 70 ; YajS. I. 238 « Vaj. Saihli. XIII. 27. Ifc is a general nuudm tbat the Mantras, used for daily and occasional rites, mnst be taken from that redaction of the Veda which is hereditary in the family of the sacrificer. Hence it is only necessary to find out from which redaction the Mantras prescribed in any work or those used by any individual are taken in order to ascertain the Vedic school to which the author or the sacrificer belongs.
48 AUTHOJilTIBS ON WRITTEN LAW.
metrical law book ascribed to tbe Guru of the gods, pro- bably was written within the last sixteen or seventeen hundred years.
In the passage quoted there, Brihaspati gives an accurate definition of a gold dinara. It has been pointed out long ago, (a) that the occurrence of the word dindra, which is a corruption of the Latin denarius, is a test for the date of Sanskrit works, and that no book in which it occurs can be- long to a remote antiquity . Golden denarii were first coined at Borne in 207 b.c, and the oldest Indian pieces corresponding in weight to the Roman gold denarius, which are known are those of the Indo-Scythian kings, (6) who reigned in India from the middle of the first century B.C. It is, therefore, impossible to allot to Sanskrit authors, who mention golden dindras, and* accurately define their value, an earlier date than the first century a,d., and, it is not improbable, that that limit is fixed rather too high than too low. If, then, the verse of Brihaspati, quoted by Nandapandita, is not a later interpolation, the Smriti called after him cannot be older than sixteen or seventeen hundred years.
The same remark applies to the lost metrical Smriti of K&tyayana, from which Nandapandita quotes (/oc. cit.), also a verse, defining the value of the dinara and to the fragment of N4i*ada which treats of civil and criminal law. With respect to the latter work, it must, however, be noted that the vulgata, which has been trans- lated by Professor J. Jolly, (c) does not contain the verse giving the definition of the term din&ra, while another recen- sion of the same work which is accompanied by the commen- tary of Asah^ya, re-arranged by one Kalydnabhatta, has it,(d)
(a) See, e.g.. Max. Miiller, Hist. Ano. Sansk. Lit., p. 245. (h) E. Thomas, Jainism, p. 71, seq^.
(c) The Institutes of N&rada, translated by J. Jolly. London, Triibner, 1876.
(d) Sacred Books VII., p. XXY., and Report on Sansk. MSS. for 1874-75.
TttK SMpms* 49
Asah&ya is one of the oldest and most esteemed writers on civil law, whose name is quoted in several of the older Nibandhas and commentaries. In B&lambhatWs commen^- tary on Mitakshar^ I., 7, 13, where the opinion of Asah&ya, MedMtithi and others is contrasted with the view of Bhiruchi, it is stated that Asahija, literally ' the Peerless,' is an epithet of Medh4tithi. Colebrooke, however, doubts the correctness of Balambhatta's statement^ because he found the word Asahaya used as a proper name in the VivMaratn&kara* His doubts are confirmed by the cir- cumstance that in other digests, too,(a) Asah&ya is mentioned as an individual writer, and tbat KalyeLnabhatta says nothing about the identity of Asah&ya and Medh&tithi, bat evidently takes the former for a separate individuals As in the passage of the Mit&kshar4, quoted above, Asahaya stands before Medhdtithi, and as it is the custom of Sanskrit writers in quoting the opinions of others to name the oldest and most esteemed author first, it may be inferred that Asahaya preceded Medhdtithi, who probably Wrote in the 8th or 9th century a.d. Under these circumstances it must be conceded that the version of Narada's Institutes accom- panied by Asah^ya^s commentary has greater weight than the vulgata and that the definition of the term dindra belongs to the original. Hence it would appear that the Ndrada Smriti cannot lay claim to any greater antiquity than the first or second century a.d. On the other hand, the discovery that as ancient an author as Asahaya composed a commentary on the work, gives support to the view of Professor Jolly [b) that the N&rada Smriti is not later than the fourth or fifth century of our era. To the same con- clusion points also the circumstance that the prose intro- duction, prefixed to the vulgata of the N&rada Smriti, (c) which gives a clearly erroneous and mythical account of the origin of the work, belongs to the commentary of
(«) e.g. in VaradarAja's Vyavah&ranirnaya, p. 38 (Burnell). (h) Institutes of N&rada, p. XIX. (c) Ibidem, pp. 1-3. 7h
50 AUTHORITIES ON WRITTEN LAW.
Asahaya. The tradition^ given there, asserts that the Narada Smfiti is a recast of Sumati's abridgment of the original Mana Smriti. Bat a comparison of the doctrines of Narada with those of Man a shows that the connection be- tween the two authors is not very close. They differ on most essential points, such as the titles or heads of the civil and criminal law, the number and manner of the ordeals, the permissibility of the Niyoga, and the remarriage of widows, the origin of property, the kinds of slavery, and so forth.(a) Now if Asahaya's erroneous statement regarding the origin of the NSrada Smriti is not a deliberate fabrication, its existence can be accounted for only by the assumption that between his own times and those of the real author of the Narada Smriti so long a period had elapsed that the true origin of the latter work had been forgotten. With respect to the latter point it may be mentioned that hitherto it has not been possible to de- termine the Vedic school to which the N&rada Snariti belongs.
Among the lost metrical Smritis, that ascribed to Laug&kshi, was possibly based on the Kathaka Dharmasutra. For, accord- ing to the tradition of theKasmtrians, Laugdkshi was the name of the author who composed the SAtras of the Katha school.
The Smritis which may be placed under the second head, that of secondary redactions of metrical DharmasHstras, may be subdivided into extracts and enlarged versions. Of the first kind are the various Smritis which at present go under the names of Angiras, Atri Daksha, Devala, Prajdpati, Yama, Likhita, Vyaghmpada, Vyjlsa, Saukha, Sankha-Likhita and Vriddha Satatapa. All these works are very nmall and of small importance. That they are really extracts from, or modern versions of more extensive treatises, and not simply forgeries, as has been supposed, seems to follow from the fact that some of the verses quoted by the older commen- tators, such as Vij ndnesvara, from the works of Angiras and so forth, are actually found in them. On the other hand, it is clear that they cannot be the original ancient works,
(a) Xbidsm, pp. XIII-XVIII.
THE SM^IITIS. 51
wliich Vijoanesvara and other old Nibandhakdras knew^ because many verses qaoted from the latter are not traceable in them. In the ease of the Yriddha S^t^tapa* smriti, the author himself states in the beginning (si. 1) that he gives only so much of the ancient work ' as is required to nnderstand its meaning/ To the second sub-division, that of the enlarged metrical Smritis, belongs the so-called Brihat Parasara. It is expressly stated that the book was composed or prockimed by Suvrata (Suvrataprokta Sathhiift). Though it is divided, like the original Pdrisara, into twelve chapters, it contains 3,30 Oslokas against the 581 or 592of the older book.
To the third class, that of the more recent compilations in verse which are not based on any particular old works belong, besides the Kokila, Saptarshi» Chaturvimsati and similar Smritis, mentioned above, the existing Lohita Smritis, and perhaps that ascribed to Kapila. The author of the Lohita Smriti states in the last verse of his book ''that Lohita having extracted the quintessence from the S^stras, has proclaimed this work for the welfare of mankind.*'
The fourth division, that of the versified Grihyasfttras, includes the two Asvalayanas, the so-called Brihat Saunaka, or Saunaklya K&rikd, and the fragments of Sikala and San- kh^yana. Both the Asval&yana Dharmasastras are simply metrical paraphrases of the Asvalayana Grihyasutra, and the Brihat Asval&yana is distinguished only by the peculiarity that it contains the same matter twice, " for the sake of the slow-minded," together with some verses on Rajaniti, or 'polity.' The Brihat Saunaka is particularly interesting not only because it seems to be the last remnant of the Smarta writings of that famous teacher of the Rigveda, but also because it apparently has been remodelled by a Vaish- nava of the sect of R&minuja, and affords another instance of the activity which the Vaishnavas displayed in turning ancient writings to their account. A detailed notice of this work will be found in a paper laid before the Asiatic Society of Bengal in September 1866. It is characteristic of the
52 AUTHORITIES ON WRITTEN LAW.
negligence and want of critioiJ discernment shown by Hindti writers, that Nilakanthain the Yyavah^ra May ukba treats the Brihat Sannaka as a genuine production of the old Ach^rya. The fifth class^ or that containing the forgeries, is unfor- tunately of not small extent. The Vaishnavas seem to hare been most unscrupulous in using old names in order to give weight to their doctrines. They have produced the Brihat H&rita, two Vasishtha Smritis, a Sdndilya and the Lagha Vishnu. These books represent various shades of the Vaishnava creed. Some are extremely violent in their dia- tribes against other sects, and teach practices and doctrines which would have astonished the ancient Rishis whose names they appropriated, while others are more moderate and con- form more to the Sm^rta practices. The most extreme are the Brihat H&rita and the third Vasishtha of our list. There is only one work which may be safely called a Saiva forgery, the second Gautama of the list. It is distinguished from the common Smirta works only by occasionally inculcating the worship and pre-eminence of Siva. The rites prescribed are what one at the present day would call Smarta* Besides these, some other small works belong to this class,, among which the second Apastamba and the second Dsanas may be named. Their rules do not show any particular sectarian tendencies. It will, however, be proper to call them forgeries, because they bear the names of ancient teachers, though they apparently have nothing to do with the authentic writings of these persons. On the other hand, it must for the present remain undecided whether the commonplace Sastras attri- buted to Visvamitra and Bh^radvfija are modern fabrications^ or versifications of older Sfltras. In the case of Bh&radvaja there is some foundation for the latter opinion, as a great portion of the Sutras of a Bhiradv&ja school, which belongs to the Black Yajurveda, is still in existence.
In concluding this sketch of the Smriti literature, it ought to be remarked that the opinions advanced with respect to its origin and development are supported by the analogies of
THE sM?ms. 53
other brandies of Hindft literatare. The older portions of the Upanishads, or the philosophical portions of the Vedas which inculcate the 'road of knowledge/ either still form part of the collections of texts or SAkhfts studied by the various Vedio schools, or can be shown to have belonged to such collections. Thusthe Aitareyaand Kaushitaki Upanishads are incorpo- rated in the Sakh&s of the Bigveda which bear these names. The Taittiriya, the V&runl and other Upanishads still form part of the Taittirlya ^kh^, the Maitrayanl of the Maitrftyana S&kh&, the Brihadaranyaka of the Mddhyandina and Kdnya SJkhJs of the White Yajurveda. Again, the names and contents of such works as the Bashkala and J^beiila Upani- shads show that they belonged to extinct Sakh&s of the Big and Samavedas. Next we have the Upanishads which have been recast by the adherents of the fourth Veda, the Atharvanas, further Upanishads which, though counted as parts of the Atharvaveda, proceed apparently from ad- herents of the philosophical schools, and lastly, the fabrica^ tions of sectarians, Vaishnavas, Saivas, G^napatas and so forth. While the first classes of Upanishads are writ- ten in archaic Sanskrit prose, or in prose mixed with verse, the later works show the common Sanskrit, and many of them are in verse. In some instances the con- nection between the prose and the metrical treatises can be clearly traced. In all this the analogy to the Smriti litera- ture is obvious, and in the case of the Upanishads, too, the truth of our fundamental position is apparent, viz., that the fountain of intellectual life in India and of Sanskrit literature is to be found in the Brahminicat schools which studied the various branches of the Vedas. Even in the case of grammar, of astrology and astronomy, the correctness of this principle might be demonstrated, though not with equal certainty, because the oldest works in those branches o£ science are lost, or at all events have not yet been recovered.
The bearing of our view regarding the history of the Smritis, on their interpretation, and on the estimation in
54 ATJTHOBITIES ON WEITTEN LAW.
which they must be held, is obvious. The older still existing Smritis, and the originals of the rest, are not codes, bat simply manuals for the instruction of the students of the Charanas or Vedic schools. Hence it is not to be expected that each of these works should treat its subjects in all its details. It was enough to give certain general principles, and those details only which appeared particularly interest- ing and important. It is, therefore, inappropriate to call the Smritis '' codes of law,'' and unreasonable to charge their authors with a want of precision of discrimination between moral and legal maxims, &c.(a) Such strictures
(a) In the ancient societies in their earlier stages there was no such thing as systematic legislation on a utilitarian basis. The civic or national consciousness was developed under the influence mainly of religious conceptions, and all that belonged either to the State in its relation to individuals or to the mutual rights and duties of mem- bers of the community was wrought out under this sacred control. The ethical and the social laws spring forth as offshoots from the relations of mortal men to supernatural beings, to their own ances- tors, and to their families united to them in close ties of religious interdependence. The ceremonial law seeking to propitiate beings, whose nature may be variously conceived, acquires the intricacy of a purely artificial system, and its interpreters are invested with a sacred character on account of their association with awful thoughts, and their exclusive command of potent formulas. The priesthood shared — and could not but share — the chief emotions of the people, but they moulded these into forms consonant to their own ruling notions, by connecting every phase of moral or legal change with some doctrine or some phrase regarded as of divine authority. As inven- tiveness and constructive faculty were set to work by the prompting of new needs in altered circumstances, the expression of the result, whether wholly original or partly borrowed, was grafted on to the existing system, and if it corresponded to any permanent want or form of moral energy it was preserved by frequent recitation; and as in India the people, owing perhaps to physical conditions, were much less stirred to distinctly civic activity than in Greece or Bome, the purely religious element in their body of thought has maintained its early predominance down even to modern times. The source and the sanction of the "municipal" being thus in the religious law, it was natural that a severe discrimination of the one from the other should
THE VEDAS. 55
would only be justified if the S myitis were really " codes'' tntended from the first to settle the law between man and man. At the same time it will appear that the statement of the modem Nibandhakdras and commentators that the varioos Smritis are intended to supplement each other is^ at least to a certain extent, correct. As none of the Smritis is com- plete in itself, it is, of course, natural that the lawyer should, if one fails, resort to the others which, on the whole, are written in a kindred spirit. It would, however, be unwise
not be attempted. In the Mosaic law, as in the Hindu law, we find sacrificial ceremonies, family relations, the conditions of property, criminal laws, and legal procedure all put pretty much on the same leTel and all in some degree intermingled because all regarded mainly from the same stand-point of their supernatural origin. Thus viewed, many parts of the law have a certain harmony with one another* which, from our modern stand-point, seem incongruous, otiose, or nnmeaaing. Amongst the Greeks and Romans, as amongst the Hindus, the laws being regarded as of divine origin, were committed to the memory and the care of the priestly class. This class furnished the only jurists, and when laws were reduced to writing, their proper repositories were the temples of the gods. A council of prieets, as of Levites or of Brahmans, could alone pronounce on the moat important questions of the civil law, or give the requisite assent to some proposed deviation from established use and wont. It seems that in the early period the Greek laws were mostly, if not wholly, rhythmical * The same form of the Roman laws is suggested by the word **Carmina," commonly applied to them. They were special to the Greeks and to the Romans as the Brahmaniclaw is special to Hindils. Rights as existing beyond the pale of the religious con- nexion are hardly recognized except by a faint analogy. The Smy itia therefore and the mental evolution which they embody may be regarded as a most natural product of the human mind at a particular stage of growth. An economical, or purely political aim not having been admitted except as subordinate, the conduct of men was not prescribed by reference to it as distinguished from the religious aim. The rhythmical form of the precept^s has its analogue even iu the English law, many rules of which and even the statutes were in early times converted into verse, as a convenient means of committing them to memory.
• Wachsmuth Hi»t. Ant. of Gr., Ch. V. § 39.
SB AUTHORITIES ON WRITTEN LAW.
to use them indiscrimiDately^ since they contain also a great many contradictory or conflicting statements. It will be necessary to examine in each case, whether the Smriti from which sapplomentary information is to be derived, agrees in its principles on the point in question with the book which serves as the fundamental authority. For in the latter case only will it be possible to use the additional information, A considerable caution in the use of unknown texts, said to belong to Dharmasdstras, regarding which we possess no full information, is also advisable on account of the great number of forgeries and recasts of ancient works which exist at the present day, A full enquiry into the authenticity of such texts is very necessary.
The Vedae. H. The Vedas, — The fountain-head of the whole law is, according to the HindAs, the Veda, or Sruti. By the latter term they understand the four Vedas, the Rik, Taj us, S&man and Atharvan in all their numerous Sakhis or recensions, all of which they believe to be eternal and inspired. Each Veda consists of two chief portions, the Mantras and the Br&h- manas. The former are passages in prose and verse which are recited or sung by the priests at the great sacrifices ; the latter contain chiefly rules for the performance of the sacrifices and theological speculation^ on their symbolical meaning and their results, as well "as, in the Aranyaka portion, discussions of philosophical problems. As may be expected, the Vedas include no continuous treatises on Dharma, but, incidentally, a good many statements of facts connected with all sections of the law are found. The authors of the Dharmasutr^ frequently cite such passages as their authorities. But it is a remarkable fact that they by no means agree regarding their applicability, (b) Forthe practi- cal lawyer of the present day the Veda has little importance as a source of the law. But a careful investigation of the state of the law, as it was in the Vedic age, will no doubt yield important results for the history of the HindA law.
(6) Sacred Books II., p. XX.
BOOK I -INTRODUCTION.
THE LAW OF INHERITANCE.
General View of the EinM Law of Inheritance, according to tlie authorities current in the Bombay Presidency.
§ l.-DEFINITION OF THE LAW OF INHERITANCE.
• The Law of Inheritance comprises the rules according to which property, on tlie civil or natural death of the owner, devolves upon other persons, solely on account of their relation to the fortner owner.
Remarks. The title of the HindU Law under whicli the law of inherit- ance falls is the DajavibhAga, i.e., according to the usual translation, " the division of inheritance/' D&ya, lit, a 'portion/ is defined by Vijiianesvara as ' the wealth (pro- perty) which becomes the property of another solely (a) by reason of his relation to the owner/ and vibhaga, lit. 'division /as ' the adjustment of divers rights regarding the whole by distributing them on particular portions of the aggregate/ (6)
It thus appears that the Dayavibhdga includes not only the law of inheritance, but the rules for the division of any estate, in which several persons have vested rights, arising out of their relation to the owner. Actually, however, the contents of the chapter called Dayavibhaga are still more miscellaneous, as the HindA lawyers were obliged to intro- duce into it discussions on the nature and the various kinds of property, on account of the want of a separate title for these matters in the system of the Smritis.
(a) Colebrooke, Mit. Chapter I., Sec I., paru. 2. (h) i/ytU, para. 4. <Sw Book II , Introduction. 8 H
5S DIVISIONS OF LAW OF INHERITANCE. [bOOK I.
The civil death of a person results from his entering a religious order, or being expelled from his caste by means of the ceremony called Ghatasphota, the smashing of the waterpot. (a)
The relation or connection (sambandha) which gives to a person a right to inherit another's property, may be of six kinds : —
a. Blood relationship.
i. The relation of adoptee to the adopter and his family.
c. Connexion by marriage.
d. Spiritual connexion.
e. Co-membership of a community or association. /. Relationship of a ruler to his subjects.
§ 2.— SUBDIVISIONS OF THE LAW OF INHERITANCE.
The Law of Inheritance may be arranged, according to the natural or legal status of the person by whom the property is left, under the following heads : —
I. Rules BEQAEmNG the Succession to a Male.
A. To a householder (grihastha) who is a member of an undivided family {avibha kta) .
B. To a temporary student [upakurvdna brahmachdrin), to a separated householder (vibhakta grihastha), and to a united householder in respect of his separate property,
0. To a reunited coparcener (samsrishtin) .
(a) The Vtramitrodaya,/. 221, p. 2,1. 7, states expressly that persons who are only patita may inherit on performing the penance prescribed to them, and it is said, /. 222, p. 1, 1. 10, that the person solemnly expelled does not inherit. Bh&lchandra 6&stri, in Steele's Law of Castes, p. 5% says that a member of a family who has lost caste, is to receive his share after expiation, notwithstanding an intermediate partition.
INTRODUOTION.] DIVISIONS OF LAW OP INHERITANCE. 59
D. To a professed student {naishthika brahmaclidrin) and to an ascetic {Yati or Sanuydsin).
II. Rules regardinq the Succbssion to Females.
A. To unmamed females,
B. To married females having issue.
C. To childless marned females,
in. Rules regarding Persons excluded from Inheritance.
" Deus facit heredera/' says Glanville : that is, heirship properly so called arises only from natural relation. In the Tagore case, Willes, J., says, '^ Inheritance does not depend upon the will of the individual ; transfer does. Inheritance is a rule laid down (or in the case of custom recognised) by the State, not merely for the benefit of individuals, but for reasons of public policy.'^ (a)
Under the Roman Law inheritance was a devolution of the property and rights, with the obligations and duties of a deceased as an indivisible aggregate on the heir designated by the law or appointed by will. The heir might be bound to carry out bequests and discharge debts as directed, but the defining characteristic was that he essentially continued, for legal purposes, the persona of the deceased. The sacra were not conceived as divisible, nor consequently was the familia which sustained them. Thus it was said Nemo pro parte testatus, pro parte intestatus decedere potest. Under the Hindft Law also the heir or the group of heirs (wills not being contemplated), who in the undivided family take a succession, continue the p3rson with which they have already been identified, (b) One joint owner of the common property having been removed, the others take it as an undivided aggregate, capable of partition, but subject to a primary obligation in favour of the family sacra (c) and of creditors of a father
(a) L. E. S. L A., at p. 64,
(h) See Viramit. Trans, p. 2.
(c) Viramit. Trans, pages 133, 25G.
60 DIVISIONS OF LAW OF INHERITANCE. [bOOK 1.
whose claims have not arisen from transactions of an obviously profligate character, tending to defraud the manes and the children bound to sacrifice to the manes of past ancestors. It is in accordance with this theory that Vijiianesvara construes the text on the origiu of property (Mit^kshara ch. I., sec. I, para. 1 3). '* Inheritance*' as a source of property he conceives as pointing to a continuation of the legal person by the un- obstructed heir as joint ov/ner. *' Partition'' he refers to the case of property descending to obstructed heir as collaterals taking necessarily according to distinct and several shares, on rights arising to each severally at the owner's death. So too at chap. I., sec. I., para. 3, he carefully distiuguishes between the cases of sons, whose the patrimony becomes immediately and indefeasibly on their birth, and of parents, &c., on whom the estate devohws only on the death of the owner, and who meanwhile have not like sons a share in the ownership, only an expectancy which may be defeated by the act of the owner unembarrassed by a joint ownership of sons or grandsons, (a)
The Teutonic laws preferring males to females divided the allodial holding equally. Tbey distinguished inherited pro- perty from acquisitions and moveables from immoveables: the inheritance under them might pass by different rules to several successors. Then came the right of primogeniture and the other extensive modifications induced by the Feudal system. The historical development of the English, having been so widely different from that of the Hindd Law of Inheritance, great caution ought to be exercised in apply- ing any analogy derived from the former to the solution of questions arising under the latter. The language of Willes, J., in Juttendromohun Tagore v. Ganendromohun Tagore{h) rests on a principle of general application. He says : *' The questions presented by this case must be
(a) Comp. Viramit. Chap. T., p. 54, Transl. p. 39. (h) L. R. S. I. A. at p. 64.
INTRODCCTION.] DIVISIONS OF LAW OP INHEniTANCK. Gl
dealt with and decided according to the Hindfl law pre- vailing in Bengal, to which alone the property in ques- tion is subject. Little or no assistance can be derived from English rules or authorities touching the transfer of property or the right of inheritance or succession thereto. Various complicated rules which have been established in England are wholly inapplicable to the Hindfl system, in which property, whether moveable or immoveable, is, in general, subject to the same rule of gift or will, and to the same course of inheritance. The law of England, in the absence of custom, adopts the law of primogeniture as to inheritable freeholds, and a distribution among the nearest of kin as to personalty, a distinction not known in Hind A law. The only trace of religion in the history of the law of suc- cession in England is the trust (without any beneficial interest) formerly reposed in the Church to administer per- sonal property : Dyhe v. }Yalford, (a) In the Hindfl law of inheritance, on the contrary, the heir or heirs are selected who are most capable of exercising those religious rites which are considered to be beneficial to the deceased.^'
Resting on this, he says :— ^* the will contains a variety of limitations which are void in law, as, for instance, the limitations in favour of persons unborn at the time of the death of the testator, and the limitations describing an inheritance in tail male which is a novel mode of inherit- ance inconsistent with the Hindft law.'' (6) But after rejecting these. His Lordship, from the principle that an owner may by contract bind himself to allow another the usufruct, deduces the consequence that a temporary posses- sion and enjoyment may be given by will, to be followed by other interests simultaneously constituted. Here he foUows the English as distinguished from the Roman Law.
Special care should be taken not to build on particular ex- pressions in the English text books. In translating from
(a) 5 Moore P. C, 434. (b) L. R. S. I. A. at p. 74.
62 DIVISIONS OF LAW OF INHERITANCE. [bOOK I.
the Sanskrit law-books the most nearly equivalent words have to be used to render those of the original, but this is in many cases an equivalence only for the particular pur- pose and in the context where the words occur. For drawing inferences the original must in cases of any nicety be referred to with as much care as the Greek or Hebrew text of the Bible for the support of a theological doctrine, or the Pandects for determining the true sense of a Roman law.
" The law of inheritance amongst the Hindiis is regulated generally by the performance of funeral oblations" (a) in this sense that the duty of performing the obsequies and subse- quent rites being regarded as of paramount importance, the determination of the person on whom it devolves and the nature of the ceremonies to be celebrated settles incidentally who in sequence are entitled to the estate. The interest in it of the deceased is supposed not to be wholly extinguished, and as the possession of property is essential to an effectual sacrifice, the proper performer of the Sraddh is endowed with the means of performing it. A rigid regulation of the right to succession by funeral oblations is however peculiar to Bengal, having been adopted as a general principle by JimAta Vahdna. (fe) In other parts (c) of India the criterion is admitted only partly, (^) and the Mitakshara and the MayAkha make the duty and the right collateral, meeting usually in the same person but not connected necessarily as cause and consequence. Consanguinity has greater influence, . and may be looked on as the foundation on which the rules as to succession on the one hand and as to inheritance on the other
(a) H. H. Wilson's Works, V., 11 Soorendronath Boy v. MussL Eeeramonee BunnQneah, 12 M. I. A., at p. 96; Neelkisto Deh Burmo}io V. Beerchunder Thakoor, Ibid, at p. 641.
(h) Dayabh.,Ch. XI., Sec. VI. para. 29, 2.
(c) Viramit. p. 39 Col. Dig., B. V, T. 420, Comm.
{d) lb. 14.
INTBODUCTION.] DIVISIONS OF LAW OF INHERITANCE. 63
really rest. (a) Where there is a connexion of blood through males or females, there is, except in remote cases, a possibility of succession. A new connexion is established by marriage, and the family springing from this union is linked both to the father's and less closely to the mother's ancestors and their descendants. Except amongst those in whom there is really or by a fiction a sharing of identical blood, as derived from an identical source, there is no relationship giving rise to the ordi- nary rights of succession with which the law of inheritance is concerned, and the accompanying duties prescribed by the religious law. (6)
The law of inheritance is divided by the Hindfls, accord- ing to the nature of the rights of heirs, into unobstructed (apratibandha) succession, and succession liable to obstruc-, tion (sapratibandha). Unobstructed succession comprises the rights of sons, sons' sons, and their sons, to the inherit- ance of their fathers and ancestors, whether these were members of undivided or of divided families, and the succession in an undivided family in general. Succession liable to obstruction is subdivided into succession — (1) to a male who dies without sons, sons' sons, or great-grand- sons in the male line, (2) to a reunited coparcener, (3) to an ascetic, and (4) to women. This arrangement of the subject-matter is necessary if, as is done by the Hindu lawyers, the laws of inheritance and of division are treated of under one title. But, as it is greatly wanting in clearness, especially in the first part, relating to unobstructed suc- cession, it seems advisable to desert it when the Law of Inheritance is treated of by itself.
As the descent of property varies under the Hind A law, chiefly according to the natural and the legal status of the
(a) How far this is carried in favour of females by B&lambhatfca may be seen from the extracts given in the Tagore Lectures, 1880, Leo. X.
{h) The succession of one spiritually related, as of a teacher or pupil, may be ascribed to an imitative method of preserving religious ceremonies and the property dedicated to them. The Brahmin com- munity and the king serve to complete the scheme. See below.
64 DIVISIONS OF LAW OF INHERITANCE. [bOOK I.
last possessor, it will be more convenient to divide the rules on this subject according to the latter principle. ' Succes- sion' should therefore be first divided into succession to males and to females. Hindft males are divided according to their castes into Brahmins, Kshatriyas, Vaisyas, and Sddras. (a) The members of the first three castes are divided according to the * orders' (dsramas) into Brahmach^iis, '^ students/' Grihasthas, ^^ householders," and Tatis or Sanny&sls, ^' ascetics." The Brahmach&ris again are of two kinds, paying or temporary students, Upakurvanas, or else Naishthikas, ^ professed students/ such as from tbe first renounce the world. Grihasthas, householders, also are of three kinds. They may be avibhakta, members of an undivided family, vibhakta, ^separate,' or samsrishtln, ^re- united,' and lastly the avibhakta or united householder may be separate, in some respects, i.e., he may hold property to which his coparceners have no right.
It is, however, unnecessary to take into account all these several varieties of status. Under the present law, especially as amended by the Acts of the Government of India, caste has little importance for the descent of property. In one instance only, that of the illegitimate son of the Sildra, the old distinction holds good. Besides the separate property (b) of the united householder, the property of the Upakurvana BrahmachS,ri, the temporary student, descends like that of the Vibhakta Giihastha, the divided householder, (c) The principles, at least, applicable to the succession to Naishthika Brahmacharis, professed students, are the same as in the case
(a) Sddras are always considered Grihasthas, as the study of the Veda is forbidden to them.
{h) There are no particular rules regarding the descent of this kind of property. But the fact that it is exempted from the rules regarding the division of the property of united coparceners, shows that it must fall under the rules regarding the property of separate males. For the definition of such 'separate property' (avibhajya), see Mit. Chap. I.i Sec. V. ; Vyav. May. Chap. IV., Sec. VII. ; and Book II., Introduction.
(r) See Mit. Chap. 11., Sec. VIII., para. 3.
INTSODUOnON.] DIVISIONS OP LAW OF INHBBITANOB. 65
of Sanny&sls. We obtain therefore for the succession to males four subdivisions : (1 ) the succession to the Avibhakta Grihastha, a householder of an undivided family ; (2) to the IJpakurv&na Brahmach&ri^ a temporary student^ and to a Yibhakta Grihastha^ a separate householder ; (3) to a Sansrishtl Grihastha^ a reunited householder ; (4) to San- uyasls or Tatis, ascetics, and to Naishthika Brahmach&ris, professed students.
In the case of females, it is of importance whether they are unmarried or married, and whether, if married, they leave issue or not. The rules regarding the succession to their pro- perty may therefore be divided under three heads as above.
§ 3 A. SUCCESSION TO THE PROPERTY OP AN AVIBHAKTA GRIHASTHA.
(1) Sons, Sons' Sons, and their Sons. — The property of a male member of a united family, Avibhakta Orihasthoj descends, per stirpes, to his sons, son^s sons, and son^s sor!s sons, who were united with the deceased at the time of his death. See Book L, Chapter I., Section I., Question 1.
''That under the law of the Mitaksharil each son upon Us birth takes a share equal to that of his father in ancestral immoveable estate is indisputable."(^)
'^The ownership of the father and the son is the same in acquisitions made by the grandfather, whether of land, of a fixed income, or of moveables.^' (6)
The three descendants in the male line take the inherit- ance by virtue of the right which vests in them from their birth to the ancestral family estate, and to the immoveable property acquired by their father, grandfather, or great- grandfather (apratibandha d4ya), and they represent these
(a) P. 0. in Suraj Bv^nsi Ko&r v. Shea Prasad Singh, L. E. 6 I. A. 88, 99. (*) MitAksharft, Chap. I., Sec. 5, para. 3 ; Viramitrodaya, Tr. p. 68. 9h
66 LAW OF INflEBTTANOB. [BOOK L
persons in the undivided family, (a) The ultimate reason for their preference to other coparceners most be sought in the importance attached by the HindA to the continuation of his race> and to the regular and continuous presentation of the oblation to his manes (srdddha). {b)
(a) Mit., Chap. I.| Sec. 5> and Sec. 1, para. 3 ; Yyay. May. IV., Sec. 1, para. 8.
(6) GaiuB, Lib. 11. § 55, points to the importance attached by tlie Romans in early times to the due performance of the sacra and the oonnexion of these with the inheritance. Compare the remarks at 11 B. H. C. R., 265.*
In § 152, et sqq., Gbias deals with heredes necessarii, sui et neces- sarii, ant extranei. Of the " sui et necessarii *' he says § 157 : — " Sed Bid qnidem heredes ideo appellantur, quia domestici heredes smit, et yiyo quoque parente, qaodam mode domini ezistimantur."
Against these joint owners, " Nihil pro herede posse nsncapi sais heredibus ezistentibas, magis obtinoit.f This passage may per- haps indicate that the " sni " formed a fourth class."^ Sons and daughters of the last proprietor or of his son were forced to take the inheritance with its burdens. They were thus " necessarii" as well as "sui."
The death of the son was necessary to bring in his children§ and they must have been still within the potestas of the grand&ther at his death.
Paulus in the Digest describes the position of the son inheriting his own, " suns heres/' in a way very analogous to that found in the Biindtl treatises.
" In suis herdibus eyidentius apparet continuationem domini eo rem perduoere, ut nulla yideatur hereditas f uisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur, unde etiam filiusfamilias appellatur sicut paterfamilias, sola nota hao adiecta, per quam distinguitur genitor ab eo qui genitus sit, itaque post mortem patris non hereditatem percipere yidentur, sed magis liberam bonorum administrationem consequuntur, hac ex causa licet non sint heredes instituti, domini sunt ; nee obstat, quod licet eos exheredare, quod et occidere licebat."
* Bhdu Ndndji Utpdt v. Sundrdhdi. t Cod. Lib. VII., 29; 2. X Tomkins and Lemon's Gaius, p. 341. § Gdiufl, Lib. II. § 156.
IHTBODUOTION.] UNDIVIDBD FAMILY. 67
Actual birth is necessary to the full canstitation of right as son. The succession is not suspended for one not begotten, (a) See below Bk. 11. Chap. I., Sec. 1, Q. 8, Remark 2.
The role extending the apratibandha d4ya to three descendants conforms to the views of Nilakantha, Balam- bhatta^ Mitramisra^ and of the eastern lawyers. (6)
The Mit&kshara nowhere mentions the right of the son's son's son, and its commentator, Visvesvara, states, in the MadanapSrij^ta, that the vested right to inherit
In the Hindd as in the Boman law the essential notion of what we call "Inheritance" was that of a continuity of the "persona" and of the " familia*' over which headship was exercised, while in " Partition" the centraLidea is that of a break of continuity, of a substitution of neir relations and of new rights, indiyidualized or dilEerently aggre- gated, for the group out of which they have been formed ; and as a true union of the composite persona taking a family estate on the death of the former head implies, according to Hind& notions, a joint feunily united in domestic worship and in interests, we see how it is that the Mit&ksharft chap. I., sec. 1, para. 13 says "d&ya" is the unobstructed inheritance of the "sui heredes" taking fully and jointly what was partly theirs before, while *• partition" intends " heritage subject to obstruction." In the latter case wholly new rights come into existence, the continuity is broken up; and the several collateral hein, supposing there are more than one, take several shares by means of a parcelling inconsistent with the mere replacement of one head by another, the family corporation still preserving its personal and proprietary identity, as in inheritance not subject to obstruction. It is in this sense and in this only that the Mit&kshar&* recognizes partition as a source of property ; the several rights of those entitled cannot in some cases be made effectual without partition, though they come into existence simultaneously with the devolution of the estate; and thus they in a manner spring from the partition as a Bonrce of property, which the Smriti declares it may be, but which in ordinary cases VijBdnesvara says it is not.
(a) K(n/la8nath Doss v. Oyamonee Dossee, 0. W. R. for 1864, p. 314. Miustt^ Gouyra Ohotodhravn v. Ohummun Ohowdh/n/f Ibid. 340.
(I) See Vyav. Maytlkha Ch. IV. Sec. IV. ; Manu IX. 185 ; Col. Dig. B.v.T. 396, Comm.
* Chap. L; Sec. I., paras. 8, 7, 8, 13, 17; and 18.
68 LAW OF INHEBITANOE. [bOOK I.
does not extend further than the grandson, (a) Among the authors of the Dharmasastras a like difference of opinion seems to have existed. Bat at present the right of the great- grandson may be considered to be established, and the S&stris assume that the word ' son' includes the son's son's son.
Sons who have separated from their father and his family are passed over in favour of sons who have remained united with him, or were bom after the separation. (6)
This is an application of the principle that a joint and undivided succession of the descendants being taken as the general rule, those who have become exceptions to it, or who having been exceptions have since ceased to be so, are treated accordingly. Their rights of succession are, as to their mutual extent, their rights as they would be in a par- tition made immediately on the death of the propositus. This is brought out most clearly perhaps in the first Section of the D^ya Kramasangraha. It is in general rather assumed than propounded, as after providing for representation of sons by grandsons and great-grandsons, the discussions proceed on the basis of the deceased owner's having held separately, without which there would be no room for the several rules to operate, since in a partition on his death, the then joint owners with him would take the whole. Even '' a widow cannot claim an undivided property." (c) And the widow comes first amongst the heirs on failure of male descendants. She and her daughter are entitled only to maintenance and residence (d) from the coparceners, (e) or successors to a separate owner. {/)
(a) Madanap&rij&ta,/ 228 p. 2, 1. 7 (of Dr. Biihler's MS.). In the Subodhini, however, commenting on Mit&kshar& Ch. I., S. 1, pi. 3,. Vis vei^ vara Bhatta seems to recognize a representation extending to the great-grandson, if not even farther.
(6) Mit. Chap. I , Sec. 2, paras. 1 and 6; Yyav. May. Chap. IV., Sec. 4, paras. 16, 33, ss. •
(c) Bewan Pershad v. Musstt. Radha Beehee, 4 M. I. A. 437. .
id) Paruati v. Kisanaing, Bom. H. C. P. J. F. for 1882 p. 183.
(e) Mankoonwur et al. v. Bliugoo et al., 2 Borr. 162.
(/) Eamaji Hureo v. Thukoo Baee, Ibid. 497.
INTBODUCmON.] UNDIVIDED FAMILY. 69
In Chaudhri Ujaga/r Singh v. Ohavdhri Pitam Singh {a} tte Privy Council say of a father whose son was a plaintiff on the groand that by an imposition the father had been allot- ted but a quarter instead of a half of an estate, *** supposing tbat he was so imposed upon, and that there was some right in him to procure an alteration of the grant, that is not such an interest as a son would by his birth acquire a share in. Whatever the nature of the right might be — whether it coald be enforced by a suit or by a representation to the Government — it does not come within the rule of the Mitak- Bhar& law, which giv6s a son, upon his birth, a share in the ancestral estate of his father/' Regarded as a bounty, the property could not be recovered by a suit, but if there was a right iu the father to property enforceable by suit that right would not indeed be shared by the son except subordi- nately, the property not being ancestral, but it would be inherited by him on his father's death. The property recovered by one of several sons would be subject to the rules of Book II, Introd, ^ 5 A.
The ancient HindA law presents many traces of a once BDbsisting law of primogeniture in this sense that on the fether's death the eldest son succeeding as the paterfamilias, exercised the same or nearly the same functions of authority and protection as the previous head of the household, {b) This rule and the rule of absolute dependence of the junior members was gradually superseded by the present
(a) L. B. 8 I. A. at p. 196.
(h) Mann Chap. IX. 106 ; N&rada Pt. I. Chap. III. 2. 36, 39. The preference given by several texts to the first born, combined with the principle of representation, may in the case of an impartible estate form a ground for preferring the son of a deceased first-bom son as heir before his uncle, the former owner's eldest surviving son.* Other
* See Manu Chap. IX. 124, 125 ; the Rdm6yana quoted Col. Dig. B. II, Chap. IV. T. 15, Com. ; Ait. Brahm. IV. 26, VII. 17, 18 quoted Tagore Lee. 1880, Lee. V. ; Samalaktkmi Amtnal v. Sivanantha, 14 M. L A., at p. 691.
70 DIVISIONS OF LAW OP INHBEITANCB. [bOOK I.
law of equal joint snccession of all the sons standing in a like legal relation apart from priority of birth. The nature of
texts in some degree favour the sou of the first married wife, though later born, in competition with the earlier bom son of a second or third wife* ; yet this may have originally rested on the taking of wives in the order of the classes.f Recourse must be had in practice to the custom of the family for a rule which cannot be gathered with absolute certainty from the texts.it At Madras it has been held that a junior brother, allowed by the others to take an impartible joint estate, transmitted it to his own descendants, the other members being entitled only to subsistence, but that on the extinction of his line an heir was to be sougbt in the descendants of the eldest of the original group of brothers. The rule of precedence by seniority of outgrowth from the parent stem and by representation was thought to apply to an estate which, though impartible, had all along been joint family property, and this though the eldest brother was apparently dead when the fourth one took the estate. § In the Tipperah case|| the Judicial Committee had ruled that the nearest in blood to the last holder was his heir, not the senior member of the whole group of agnates. This the Madras High Court thought inconsistent with the statement in the Shivaganga case,f that the succession to a rlij is governed by ** the general Hindd Law prevalent in that part of India, with such qualifications only as flow from the impartible character of the subject," such character being consistent with a continued joint ownership, survivorship, and precedence by seniority of origin in the group ; but it would seem that the Judicial Committee did think a rule of survivorship and of latent rights to succession of collaterals was excluded by the impar- tibility of the estate and the singular succession to it.** The view of the Madras High Court is indeed expressly rejected; as it had been by the High Court at Calcutta. The Madras decision therefore, however well reasoned, cannot be regarded as a safe precedent.
• Manu Chap. IX. 123, Col. Dig. B. IV. T. 61 and Com.
t Manu Chap. IX. 122, and Kulluka ad loo. ; Manu III. 4, 12, 18.
J Ramalakshmi Ammal v. Sivanantha Ferumal, 14 M. I. A.. 670. Ned- kiato Deb Burtnono v. Beerehunder Thakoor, 12 M. I. A. 5*23.
§ Naraganti Achammagdru v. Venkataehalapati Nayanivdru, I. L. B. 4 Had. 250.
II Neelkisto Deb Burmono v. Beerehunder Thalcoor, 12 M. I. A. 523.
•|f Katama Natehiar v. T%e R6J6.h of Shivaganga, 9 M. I. A. at p. 608.
• •See Neelkisto Deb Burmono v, Beerehunder Thakoor, 12 M. I- A. at pp. 640, 641.
DPffiODUOTION.]] UNDIVIDED FAMILY. 71
ihe transition may be gathered from the authorities referred to below, (a) See also § B (1).
§ 3 i. (2) Adoptid Sons. — On failure of legitimate issue of ihe boAify adopted sons inherit. If sons be bom to the adopter after he has adopted a son, the latter inherits a fourth share.
Examples.
1. A, B^ C form a tmited family. A adopts A^ On A's decease, A* or his descendant A" or A* takes A's share.
2. A^ B, C form a united family. A has a legitimate son, A'. The latter adopts a son. A*. If A* survives A* and A, he inherits A^s share. The same would be the case if A^ were a legitimate son of the body of A*, and adopted A', and the latter survived A*, A^ and A.
3. A, B, C form a united family. A adopts A*, and a Bon, A*, is bom to him afterwards. On the death of A, A* will inherit a fourth of a share, and A* the rest of A's share.
AUTHORITIBS.
Book L, Chapter II., Sec. 2, Q. 1, 3, and 15; and Sec. 4, Q. 2.
There ai^e no special authorities mentioning the right of ihe adopted son of a son or grandson to inherit his adoptive grandfather's or great-grandfather's shares. But it may be inferred from the maxim that a person adopted occupies in every respect the position of a son of the body of the adopter. See Synopsis of the H. L. of Adopt., Head Fourth, Stokes's H. Law Books, p. 668.
(a) Mit. Chap. I., Sec. I., para. 24, Chap. I., Sec. 11., para. 6. ; Vyav. May. Chap. IV., Sec. I.,para8. 4rlO; Apast. II. VI. j 10, 14.; Gaut. Chap. XXVm., paras. 6-16. ; Manu Chap. IX. 105/, 112/; Vasishtha XVII.; N&rada Chap. XIII., paras. 4, 6, cited Coleb. Dig. Bk. V. T. 32; VishnuChap. XVn. 1, 2.
72 LAW OP INHERITANCE. [boOK T,
§ 3 il. (3) Illegitimate Sons, Grandsons, and Grbat-Geand- SONS. — In the ease of a SUdra, being an avibhaktaj his share^ on failure of the three legitimate descendants, is inherited by his illegitimate sons, grandsons, or great' grandsons. If legitimate descendants are living, the tife- gitimate inherit half a share^
Authorities.
Book I., Chap. II., Sec. 1, Q. 4; Sec. 3, Q. 1 ; Sec. 11,- Q. 1, 2, 8; Vyav. May. Chap. IV., Sec. IV., para. 32; 2 Strange H. L. 70.
The expression '*half a share ** mnst be interpreted in accordance with the principles laid down by Vijn&nesvara, Mit. Chap. I., Sec. 7, para. 7, regarding the '' fourth of share '' which a daughter inherits. Consequently, if A leaves a legitimate son, A^, and an illegitimate son. A*, A's pro- perty is divided first into two portions, and A* receives one- half of such a portion, and A^ the rest, (a)
In the passage of the Mitaksharil referring to the rights of the illegitimate son, it is stated that the latter inherits the whole estate of his father only on failure of daughter's sons. But this can only refer to cases wherein the father is separated (vibhakta), as daughters' sons do not inherit from a member of an undivided family. On the other hand, the text states that the illegitimate son inherits on failure of legitimate brothers. Here it must be assumed that the author omitted to mention the sons and grandsons of legitimate brothers, as these take their fathers' and grandfathers' place by the law of representation {see p. 65), and it would be plainly anomalous that a daughter's son, but not a son's son, should exclude the illegitimate son of the propositus. See further below, § 3 -B. (3).
(a) This explanation is also expressly given in the Yiramitrodaya.
IKTRODUCnON.] UNDIVIDED FAMILY. 73
J 3 i. (4) Descendant of Emigrant Heir. — In the case of coparceners who have emigrated, the descendants in the male line within six degrees inherit, on return, their fore^ fatker^s share.
Authorities,
Mayftkha, Chap, IV., Sec. 4, para. 24; so also the Vtramitrodaya. See the case of Marqji Vishvandth v. Ganesh Vithal^ 10 Bom. H. C. B. 444.
No difference in the rule as to representation arises from the parcener's residing abroad. Mere non-possession does not bar until the seventh from the common ancestor in a branch settkd abroad ; but the failure at the same time of three intermediate links prevents a right from vesting in the foarth so as to be further transmissible as a ground for claiming a share from those who have meanwhile come into possession of the property. When they have resided in the same province, such a claim can be set up by the descendants as far as the fourth only from a common ancestor, who was sole owner of the property. See Coleb., % B. V. T, 396 Comm. ; see however Book II. Intro- duction, § 4 D, and Index, Limitation.
^34. (5) Coparceners of the Deceased. — The share of an undivided coparcener luho leaves none of the abovemen* Honed descendants goes to his undivided coparceners.
See Book I., Chap. I., Sec. 2 ; Chap. II., Se<5. 10, Q. 5 ; and for Authorities, see Chap. I., Sec 2, Q. 3.
The Mitakshara (Chapter II., Sec. 1, p. 7 and 20) and ^yav. May. state distinctly that the rule, as given above, ^^Ws good in the case of brothers, but not that it touches *^e case of more remote relations. The Sastria generally told that the word ''brothers'^ in the text in question is 10 a
74 LAW OF INHEBITANOE. [bOOE I.
intended more remotely to inclnde coparceners; in fact that it contains a ""dikpradarsana/' or indication of the principle to be followed. There can be no doubt that they are right. For the law of representation secnres also to remote rela- tions the succession to their coparcener's share. Thns if A^ B^ C, and their descendants B^^ B^^ and C^ live as a united family, and at the death of A, B*, and C* only are alive, these will be the sharers of A's property, as they represent their grandfather and father respectively, and the latter, according to the authorities cited, would have inherited A's share.
The rale of survivorship in an undivided family was recognized by the Privy Council in Eatama Natchiar v. Rajah of Shivagan^a, (a) but in a subsequent case it has been made subordinate to that of nearness of kin to the late Raja. (ft) In another case(c) reference having been made in argument to Mit. Chap. II., S. 4, their Lordships seem {see Rep. p. 504) to have thought that the plaintiff, one of four brothers once co-existing as a united family, in claiming one-fourth only, instead of one-half, of a share in a joint estate, had made a needless concession to his nephews, who would be excluSed by him and his brother from succession to a third brother their uncle deceased, but the Mitslkshara in the place referred to is treating of sepa- rate property. So too the Vlramitrodaya, Tr. p. 194. In the same treatise, p. 72, it is laid down that a son dying is replaced by his son or sons in a united family with reference to uncles or cousins, each group taking their own father's share. Vijnanesvara, Mit. Ch. I., S. 5, insists on the equal rights of father and son to the ancestral estate; so also Vishnu, XVII., 17, quoted below; and by the exclusion of nephews in favour of brothers, the case would frequently arise of a united family, in which the whole of the property
(a) 9 M. I. A. 539. (h) See above p. 70. (c) Rampiasad Tewarry v. Sheockum Dose, 10 M. I. A. 490.
imoDucnoN.] ukpividei) family. 76
belonged to one member. The law of partition gives to the nephew the same right as his uncle, and requires that a division of the common property be deferred until the delivery of the pregnant widow of a deceased coparcener, (a) The case of Debi Parshdd v. Thakur Dial (i) supports the Tiews just stated.
In a Bengal case (c) the Privy Council have held that even in an undivided family the uterine brother inherits, to the exclusion of the half-brother, his deceased brother's share. After proving in opposition to Srikara that while Yajnavalkya's text (II., 135, 136) in favour of brothers, includes both those of the full blood and those of the half-blood, the subsequent texts, as to connexion by blood and by association, give equal rights to the reunited half-brother and the separated whole-brother. JtmAta y&hana in the Daya Bh&ga quotes Yama to show that the role applies only to divided immoveable property, since the undivided property appertains to all the brethren. This has apparently been understood by their Lordships as in the case of half-brothers, meaning only reunited brethren, 80 as to leave to the uterine brother a superiority in a family wherein no division has taken place ; but the true sense seems to be that the divided half-brother has no rights of inherit- ance, if a whole brother survive, until he becomes re-assor dated, while the whole brother on account of his connexion by blood retains a right of inheritance in spite of separation. The half-brother is restored to a place by reunion, (d) The whole brother has not quite forfeited his place by division ; though in competition with another whole brother, unseparated or reunited, his single connexion does not avail
(a) Mitftksharft Chap. L, Sec. VI., pi. 11, 12 ; Chap. H., Sec. I., pl. 30; Vishnu, Chap. XVH., Sloka 23; Y&J&. II., 120, 136. {h) In. L. E. 1 All. 105.
(c) SheoSoondary v. Pirtha Singh, L. R. 4, In. A. 147,
(d) See Prcmkiehen Paul Ohowdry v. MatJ^oorainohan Patd Ohowdry, 10 M. I. A. 403 ; and Manu IX. 212.
76 LAW OF INHERITANCE, [bOOK I.
•gainst the doable connexion of the latter ; and on his return, having a double connexion with his own whole brothers^ he sacceeds to them.
However the case may be in Bengal, the Mitikshari says of the application of the Slokas (Ydjn. IL 134, 139) that '^ partition had been premisied (to the general text on soccession) and reunion will be subsequently considered/' BO that in Bombay no preferential inheritance of brothers in a united family can arise from the texts. It is the same in Vishnu, Chap. XVIL, Sikfc, 17. The joint property being traced back to the single original owner the rights of partition amongst descendants, and of inheritance, so far as inheritance can subsist, are derived from the same source per stirpes without distinction of mothers, these being now all of equal caste; (a) In Neellcisto Deb v. Beerchuiider Thalzur (h) title by survivorship is said to be a rule alternative to that founded on efficacy of oblations, and it is on this lat- ter that the decision of the Calcutta High Court is founded (c) which has been followed by the Privy Council in Sheo Soondary's case. The Bengal case indeed admits a diflference of doctrine under the Mittlkshara. (d)
A grant to united brethren without discrimination of their shares constitutes a joint tenancy with the same consequences as in the case of a joint inheritance, (e)
As to charges on the inheritance, undivided property is not generally in the hands of survivors answerable for the separate debt of a coparcener deceased. {/) A son's
{a) See Mit. Chap. II., Sec. 1, pi. 30; and Chap. I., Sec. 5, pi. 2; Yajn. II. 120, 121 ; Moro Vuhvanath v. Ganesh Vithal, 10 Bom. H. C. E. U4.
(b) 12 M. I. A. 523.
(c) See Rajkiehore v. Govind Chtcnder, L. B. I Calo. 27. {d) Loc. cit.
(e) Mdhabcd v. Mnm-do, I. L. R. 3 Bom. 151. (/) Udardm Sitdrdm v. Bdnu Pdnduji et al, 11 Bom. H. C. R. 76, 85. Goor Fershed v. Sheodiur 4 N. W. P. R. 137.
INTEODU(ynON.] DIVIDED FAMILY. 77
obligation to pay his father^s debt depends on the nature of the debtj not on the nature of the property that he has inherited, (a) And the property, even where a son is liable^ is not 80 hypothecated for the father's debts as to prevent a clear title from passing to a purchaser from the son in good faith and for value, {b) Securities created by a father, unless they are of a profligate character, bind his sons as heirs, (c) The widows of deceased cosharers are entitled to maintenance and residence, {d) See below §35(1).
§3JB.-HEIRS TO THE SEPARATE. GRIHASTHA, UPAKURVlNA BRAHMACHARt, AND TO THE SEPARATE PROPERTY OP AN UNDIVIDED COPARCENER.
The separated householder being father of a family be- comes the origin of a new line of succession within that family, (e) His sons are by their birth joint owners with him of the ancestral estate in his hands, but he has no other co- sharers in it, and in the absence of son or after separation from tbem he is free to dispose of it. { /) Should he fail to
(a) Ihid. and Laljee Sahoy v. Fakeer Chand, I. L. R. 6 Cal. 136. (6) Jamiyatrdm v. Parhhudds, 9 Bom. H. C. R. 116.
(c) Qirdhari v. Kanio Lall, L. R. 1 1. A. 321 ; Suraj Bunsee Kooer V. 8heo Prasddy L. R. 6 I. A. 104 ; Jetha Naik v. Venktappd, I. L. R. 6 Bom. at 21 ; Pomiappa v. Pappuvdyyangar, I. L. R. 4 Ma. 1.
(d) Mit. Ch. n., § 1, para. 7, ss. Vfram. p. 153 transL, Talemand Singh y. B/uhmina, I. L. R. 3 All. 353, referring to Oauri v. Chaudra- nani, I. L. R. 1 All. 262, and Mangala JDehi y. Dmanath Boeet 4 B« L. R. 72 0. C. G.
(c) See Rdjdh Rdm Ndrdin Singh v. Pertwin Singh, 20 0. W. B. 189.
(/) BhiM V. Bhdn&t 9 Harr. 446 ; Narottam Jagjimn v. Kar^ 90»dds HdrikUand&B, 3 Bom. H. C. B. 6 A. C J. ; Bahoo Beer Pertah Sdhee v. Maharajah Bajender Pertah Sahee, 12 M. I. A. at p. 39; TtO/ardm Mor&rji v- Matkurddae Daydrdm, Bom. H. C. P. J. for 1881 p. 260,
78 LAW OF INHBBITANOB, [BOOK I.
dispose of his estate^ and die separated, his sons (a) take equal- ly, and failing sons, others take in the order following:—
§ 3 B. (1) Sons, Son's Sons and Son's Son's Sons.— Tie three fir d descendants of a separate Crrihastlta in the male line iiiherit per stirpes.
See Book L, Chap. 11., Sees. 1 and 4, and for Authori- ties, see above §3-4 (1).
The householder, though unseparated generally, may have acquired property which ranks as his separate estate. The conditions of such an acquisition are discussed under the head of Partition. The succession to such property is governed generally by the same rules as if the acquisition had been wholly separate estate. When there has not been a general separation of interests, the presumption is in favour of acquisitions by the several members uniting with the joint estate, a presumption which has to be met by evidence directly proving a separate acquisition or from which it can be reasonably inferred. (6) But under circumstances the usual presumption will not be raised as ruled by the Judicial Committee in Musst. Bannoo v. Easharam. (c)
Seniority in marriage of their mothers gives no advantage to the sons over their seniors in birth by another wife; (d) and the wives being equal in class, seniority by birth
(a) Mt, Antmda Koontvwrr. Khedoo Lai, 14 M. I. A. 412. (Mithila law agreeing here with that of the Mit&ksharA.)
(5) See Dhurm Baa Pandey v. Mussumat Shama Sundri Debeat 8 M. L A. 229, 240; VSdavaUi v. Na/rayan, I. L. E. 2 Mad. 19.
Pranhishen Paul Chowdhry v. Mothooramohun Paul Chowdry, 10 M. I. A. 403.
(c) Mtisst. Barmoo v. Easharttm, 7th December 1877.
(d) Ramalakmi v. Bhivanantha, 14 M. I. A. 570.
IHTEODUOnON.] SBPABATBD HOUSEHOLDEB. 79
giy^ superiority of right, (a) where the property is im- partible. (6) See above p. 69,
The widow of the late owner is entitled to residence in the family house ; (c) so in a united family it is the widow's duty to reside in her late husband's house under the care of his brother, (d) and she cannot be deprived of this right by a sale of the house, {e)
The widow has a right to an adequate maintenance (/) out of the estate and in proportion to it. {g) She need not be maintained exactly as her husband would have maintained her; (J) but she must be supported in the family, (i) She cannot be deprived of her right by an agreement taken from ber by her husband and a gift of all his property to his sons, {j) A sum may be invested to produce the maintenance or other
(a) Manu Chap. IX., paras. 122, 125.
(h) lb, and Bhujangrav v. Mdhjirdv, 6 Bom H. C. B. 161, A, C. J. ; Pedda Ramappa Nayanivaru v. Bangari Seshamma Nayanivaru, L.R.8 LA. 1.
The partition of lands in descent between sJl the sons, and failing them between the daughters, was the universal law of socage descents in England nntil comparatively late times ; nor was it peculiar to England being found in the lands of the roturiers of Franco as well as in other parts of Europe. EUon, Tenu/res of Kent, 41. There are frequent instances in Domesday of males holding in coparcenery, or, as it is there expressed, in paragio. lb. 58.
(c) Prankoanwa/r etcd.r. Deokoonwar, 1 Berr. R. 404.
(d) Kumla et al. v. Muneshankur, 2 Borr. B. 746.
fe) Mangala Debt et al. v. Dlnanath Bose, 4 B. L: R. 72 O. C. J. Oaun'9, Chandramani, I. L. R. 1 All. 262; Talemand Singh v. nukmna, I. L. R. 3 All. 353. See Book I., Ch. I., § 2, Q. 9.
(/) Macn, Cons. HindA Law, 60.
•(g) 2 Str. H. L. 290, 299 ; Sakvarbdi v. Bhavmji, 1 Bom. H. 0. B. at p. 198.
(h) KaUeepersaud Singh v. Kupoor Koonwaree, 4 C. W. R. 65.
(i) See Bk. II. Introd. § 7 A ; M. Venkata Krietna et oZ. v. M. yenkata/nUnamah, Mad. S. D. A. R. for 1849, p. 5; Vivada Chintd- Jnani, p. 261. i;) Narbaddhdi v. Makddev Ndrdyan, I. L. R. 5 Bom. 99.
80 LAW OP INHEEITANCB, [boOK I.
arraDgemcnts made to secure it. (a) Purchasers from the successor are bound or not, as they have or have not notice of the widow's claim according to Srimati lihagavati Dasi V. Kanailal et al.;{b) a Bengal case, (c) As to the nature of the widow's right as an indefeasible charge on the estate, opinions have differed, {d) In Lakshman Rdmchandra v. Satyabh&mah&i (e) it was held that notice was not conclusive against the purchaser of property held by a surviving coparcener subject to a widow's claim. The subject is in that case fully discussed.
Even a concubine and her offspring are entitled to sup- port. See below.
The son is bound to pay his father's debts and even those of his grandfather. (/) The contracts and obligations of his father in connexion with the estate pass to the heir
(a) Sakfsdrhdi v. Bhavdnji, 1 Bom. H. C. R., at p. 198 ; Vranddvati' das V. YamundhdU 12 Bom. H. C. R. 229.
(6) 8 B. L. R. 225 A. C. J.
(c) See Adhiranee Namin Coomary et al. v. Shona Mcdlee Pat Mahadai et al., I. L. R. 1 Cal. 365 ; Baboo Goluch Chunder v. Baiie4 Oh ilia Dayee, 25 C. W. R. 100. See also BdmUl Thdkursidds v. Lakshrnichand Munirdm et al., 1 Bom, H. C. R. 71 App.; ajidJohurra Bibee v. Sreegopal Misser et al, T. L. R. 1 Cal. 470.
{d) See Rdmchandra v Sdvitrihdi, 4 Bom. H. C. R. 73 A. C. J.; Hreralall v. Masst. KoTisillah, 2 Agra R. 42 ; Musst, Laltikuar v. Ganga BMaji et al, 7 N. W. P. R. 261 ; Baijun Doobey et al. v. Brij Bhookiin Lall, L. R. 2 I. A. 279 ; Koomaree Vebia v. Roy Luchmeeput Siiig^ et al,, 23 C. W. R. 33 ; Adhiranee Narain Coomary et al v. Shma Mallee Pat Mahadai et al, 1. L. R. 1 Cal. 365 ; Mitikshaii Ch. I. Sec. VII. 1, 2; Sec. I. 27.
(e) I. L. R. 1 Bom. 262 ; 2 lb. 494 ; I. L. R. 2 Mad. 339.
(/) The obligation is made dependent on his taking property from the ancestor, and limited by its amount by Bombay Act VII. of 1866. A similar limitation is provided by the same Act in the case of family debts incurred during the minority of a member afterwards sued for them. The protection extends to obligations incurred before a member attains 21 years of ago. The genend ago of majority is now 18. See Act IX. of 1875.
INTEODUCTION.] DIVIDED FAMILY. SONS. 81
taking it^ except when improperly incurred, (a) The Judicial Committee indeed have laid down in the case of an estate expressly held not to have been self-acquired by a father that ''all the right and interest of the defendant in the zamind&ri which descended to him from his father^ became assets in his hands" " liable for the debts due from his father/' (6)
§ 3 B. (2) Adopted Sons. — An adopted son and his descendants inherit in the same manner as natural sons and their de» seendants. In case, after an adoption has been made, of the adopter having a legitimate son of his body, the adopted son receives a fourth of a share.
Bee Book I., Chap. 11., Sec. 2, and Sec. 4, Q. 2, and for Authorities, see above § 3 J.. (2) (3).
If a widow adopts a son in her husband's name^ the adopted son immediately inherits the deceased's property. See Book I., Chap. IL, Sec. 2, Q. 8, ss.
Regarding the interpretation of the expression ^' a fourth of a share/' see ^ 3 A. (3) page 72.
Adopted sons of son's sons, or son's son's sons, likewise, take the places of their adoptive fathers. See above^ ^ S A. (2), page 71.
§ 3 B, (3) ^Odras' Illbgitimatb Sons. — On failure of legiti- mate sons of the hody^ son's sons^ or son's son*s sons, the illegitimate son of a S4dra and his descendants in the male Une inherit the cmcestor^s property. If legitimate children be living, the illegitimate son takes half a share.
(o) £fcemradaPt. I. Chap. HI., 2, 4, 18; Ponnappa PiUai v. Pappuvdyyangar, I. L. B. 4 Mad. 1. Oopdl Kristna ^dstri v. Ram- <»mngdr, I. L. B. 4 Mad. 236. As to the contract of tenancy see y^nkaieih Ndrdyan Pai v. Krishnaji Arjun, Bom. H. C. Print. Jndg. 1875, p. 361; Bdldji dUStrdm Ndik Y. Bhikdji doyare Prabhu, Bom. H. O.P.J. 1881, p. 181.
(^) Muttayan Chetttar v. SartgtU Vira Pandia, decided 10th May 1882, reversing I. L. B. 3 Mad. 370. 11 H^
82 LAW OP INHERITANCE. [bOOK I.
See Book I., Chap. II., Sec. 8, and for Authorities see above, § 3 il. (3).
See §3-4. (3) above, page 72. That illegitimates of tie higher castes can claim maintenance only, while those of tbe Sftdra caste are not outcastes but inherit, is laid down in Pandaiyd v. PuU et ah (a) See also Chuoturya Run Murdun Syn v. Sahuh Purhulad Syn. (b)
According to Book L, Chap. II., Sec. 5, Q. 1, the legitimate son of an illegitimate son inherits his father's share, though the latter has died before his grandfather. There is no express authority for this opinion. But still it appears to be in accordance with the general principles of the law of inheritance. For the claim of the Siidra's ille- gitimate son to his father's property, or, at least, to a part of it, is not contingent, but absolute, since, even if he has legitimate half-brothers or half-sisters, half a share must be given to him. The Sudra's illegitimate son is therefore ma position more analogous to that of a legitimate son, than to
\a) 1 M. H. 0. R. 478.
(&) 7 M. I. A. 48, 60.
The Viramitrodaya, following the Mitftkeharft Ch. I., Sec. XI., paras. 40-43, in contemplating unequal marriages as possible though repre- hensible, assigns to the sons bom from them a one- third or a half- share of the paternal property, admitting of augmentation, except in the case of a Brahman's son by a ^Adra wife, to a full share at the father's discretion. Viram., Tr. 98, 129. An exception is, in the case of Brahmans, made of land ; that a son by a Brahmani wife may take back from the donee, his half-brother of inferior grade. Ih. 98.
According to the Celtic laws of Ireland and Wales bastards might inherit, taking with the legitimate sons a share regulated by the will of the head of the clan. See Co. Lit. 176 a and Hargrave's Note. The laws were connected as amongst the ^Adras with the general looseness of the marriage tie, which the husband could dissolve at will. See Ancient Laws of Wales, p. 46 § 64. According to the Lombard law the illegitimate was excluded from succession, but the legitimate son had to give him a provision in money.
INTRODUCTION.] DIVIDED FAMILY. ILLBGITIllATES. 83
that of relations who inherit by a right liable to obstruction. Hence it would seem a correct doctrine that those laws which apply to the succession of sons and grandsons of legi- timate sons^ should also be applied to his sons^ i. e. that his sons should be considered to represent him^ and to take^ in case he dies before his father^ the share which would have (alien to him.
In favour of this view we may adduce also the fact, that the rales treating of the rights of the illegitimate son are given by Vijnanesvara at the end of the chapter on the 'apmtibandha d&ya/ inheritance by indefeasible rights and form as it were an appendix to it. Hence it may be inferred that Vijnanesvara intended all the rules, previ- ously given, regarding sons in general, to apply also to him, except as far as they were apparently modified by the text of Y&jiiavalkya. According to this, the failure of daughters and their sons is necessary before the illegitimate eon can inherit the whole property, (a) See Mit. Chap. I., Sec. 12, and Chap. 11.^ Sec. 2, pi. 6 ; and also above § 3 A (3) page 72.
The illegitimate ofispring of a casual connexion may inherit, if duly recognized, (6) but a son bom in sin (adul- tery or incest) is not entitled to a share of the inheritance, (c) He can claim only maintenance, (d)
Illegitimates inherit collaterally only by caste custom. See Book I., Ch. II., Sec. 13, Q. 9; 2 Macn. H. L. 15; Mit, Ch. I., Sec. 11, pi. 31. (e) Inter se the sons of the same concubine are regarded as brothers of the whole blood.
(o) See Miitttiswamy Jagavera v. VenJtaiaswara, 12 M. I. A. 220.
{h) ThukooBaee v. Ruma Baee, 2 Borr. R. 499 ; Rdhi v. Qovitid, In. L. R. 1 Bom. 97.
W S.A.No. 124 of 1S77, Ndrdyanhhdrthi v. LavinghMrthi; Bom. H. C.P. J. F, for 1877, p. 173 ; S. C. I. L. E. 2 Bom. Ul.
(d) Jhid. and 2 Str. H. L. 68.
(«) Nuear Mmtojah v. Kowar Dhimwunt Roy, I. Marsh. E. 609,
84 LAW OF INHEEITANOE. [bOOK I.
Bee Book I., Ch. II., Sec. 11, Q. 4. They may form a united family with their legitimate half-brothers. See Book I.^ Cb. U., Sec 3, Q. 12.
The mie given by YILjfLavalkya in favour of the illegitimate son of a Sudra, though separated in the Mit^ksharft by a long commentary on the preceding slokas, yet in the original immediately follows them as part of a complete statement of the succession of sons according to their rank. Next follows the statement of heirs to one who leaves no male issae, that is, none of the sons just enumerated, (a) What Yajna- valkya obviously meuit therefore was that in the absence of an auras son and of a daughter's son, a Sftdra's son by his slave should succeed. The daughter's son is the one jost before specified as equal to a son, though there is a slight variance of expression owing to the term putrika suta first used not being in strictness applicable to the offspring of a S&dra. (6) Hence the word duhitra suta is substituted. By Ylljnavalkya the daughter as well as the wife is brought in after the sons of all classes, (c) It is only by interpretation on the part of the commentators that the daughter herself having been first allowed to be an appointed son has been placed before her son under texts probably intended to meet the case of no son of the enumerated classes surviving, nor any son or grandson of such a son. (cQ If YSjnavalkya had intended to give to the Sudra's daughter a place before his illegitimate son, he would not in the next line have placed the widow below that son and the daughter below the widow. The texts quoted in the Mitakshar^ Chap. II., Sec. II*, para. 6 from Mann and Vishnu (apart from Balambhatta's gloss) show that on failure of descendants in the male line both the
(a) Mit&kshara Chap. II., Sec I., paras. 2, 39. The term is apatia= Bonless.
(b) See Viramitrodaya p. 121. Infra Bk. I., Ch. H., 8. 3, Q. 12, 13.
(c) See too Mit&kshara Chap. II., Sec. I., para. 17.
(d) See Mitlkkshar^ Chap. II., Sec. II., paras. 2, 6.
mTBODBCTION,] DIVIDED FAMILY. ILLEGITIMATES. 85
Rishis prescribed the succession of the daughter's son and not without appointment (a) of the daughter herself, who came in at a later stage. (6) This makes it the more probable that the daughter's son but not tho daughter was intended to precede the illegitimate soUi though the precedence assigned to him by some commentators over his own mother in ordi- nary cccses is to be rejected^ as Mitramisra says, on account of the specification by Y&jnavalkya of the daughter and not of her son, as an heir, (c) In the case below Book L, Chap. U., Sec. 3, Q. 8, the illegitimate son of a M&li is preferred to the widow. The widow could claim recognition, but she is postponed by the S^tri to the illegitimate son through the operation of Tijnavalkya's text (d) and Vijnanesvara's com- ment, {e) which provides for the danghtei'^sson and daughter but not for the widow. (/)
It seems anomalous that the widow should be thus post- poned to the illegitimate son, and her own daughter and the daughter's son. But according to the recognized rule of con- Btmction (g) the text of Yfijnavalkya can be controlled only by another not reconcilable with its Uteral sense. Then the passages from Vishnu and Mann quoted Mit. Ch. II., Sec. n., para. 6 show that at one stage of the development of the Hind& Law, the daughter's son and even the daughter were made equal to a man's own son, while the widow was still unprovided for, or reduced to a lower place, (h) Yajnaval- ^a's text belongs to this stage : so little progress had been
(o) Viramitrodaya, Transl. p. 121. .
(b) Bhdu Ndndji v. Sundrdbai, 11 Bom. H. C. B. 274. See infra BookI.,Ch.n.. Sec. 3.,Q.10.
(c) YJramitrodaya, TransL p. 184.
(d) Mitakshara Chap. I., Sec. XII., para. 1.
(e) Mitakshara Chap. I., Sec. XII., para 2.
(/) So too the Viramitrodaya, Transl. pages 130, 176.
fe) See Viramitrodaya, Transl. p. 236.
(fc) See Mann Chap. IX., 130, 146, 147. Vishnu Ch. XV., 4, 47. Compared with Gautama XXVI., 18, Bs., and Apastamba II. VI., W;N&mdaXin.,50,61. -
86 LAW OF INHERITANCE. [boOK L
made tbat the Rishi does not even name the daughter's son except in this place ; but this mention is enough.
It is to the patn! only that the sacred texts assign a right of inheritance, (a) The English translation ^* wife'' fails to indicate the distinction between the wife sharing her hus- band's sacrifices and the wife of an inferior order, (b) The Sudra having no sacrifices to celebrate like the twice-born has no " patnl" to share them. The Asura marriage being a purchase gave to .the wife no higher status than that of a " dasi " or concubine, (c) But this or some even lower form was the appropriate one for Sftdras ; {d) the higher forms were not allowable until custom in some measure made them 80,(e) and the different consequences of marriage according to the different forms (/) are traceable to a time and a custom in which community of property between the married pair was not recognized. ( g) Under such a system it is not at all surprising that the wife's right of inheritance should not be admitted. Nor is it strange that the develop- ment of the. purely Brahrainical law by which widows in the higher castes benefited should not have embraced in its full extent the degraded SAdras. As to the wives in this caste the expanding law left them as it found them, while it readily adopted an existing custom in favour of illegitimate
(a) See below Book I., Ch. II., Sec. 6 A, Q. 6 and above Introd. See too Vtramitrodaya, Transl. p. 173.
(6) Mit. Ch. I., Sec. XI. 2. Da. Bh6g. Ch. XL, Sec I., 4S. Virami- trodaya, Transl. p. 132.
(c) Smriti Chand, 160 ; Vlramitrodaya, loc. cit.
(d) Baudhdyana makes mere sexual connexion a lawful form of union for Vai^yas and Sodras, " for,*' he says, ** Vai^yas and SAdras are not particular about their wives." Shortly afterwards he says : " A female who has been bought for money is not a wife. She cannot assist at sacrifice offered to the gods or the manes. Kdsyappa has pronounced her a slave." Baudh., Tr. p. 207.
(6) Cf. Vijiydrangam v. Lukahvman, 8 B. H. C. E. 255-56 0. 0. J. (/) Mit&k. Chap. II., Sec. XL, 11. ig) See the Chapter on Stridhau.
IKTBODUCnON.] DIVIDED FAMILY. ILLEGITIMATED. 87
80118, which appeared reasonable to those whose own heirs might be sons irregularly contributed to their families, and who looked on the SAdra marriages as virtually no more than licensed concubinage, (a)
The express provision in T&jnavalkya*s text in favour of the daughter's son may not improbably be traced in reality to a time when this kind of descent aflforded the better assurance of a real connexion of blood. But it may be really an adoption for the SAdras of a rule much repeated, though not intended for that caste. The advantageous position assigned to the daughter's son is traced by Jlmflta Vahana to his identification with the son of the appointed daughter, (6) in whose favour only, Jlmftta Vahana says, the texts ex- pressly pronounce. He cites Baudhdyana's text (c) that the "Putrika Sutam'' is to offer the pindas and apparently excludes the mere *' dauhitra '' from this right, which is assigned to him also however by Manu. (d) The introduc- tion of the daughter as well as her son may be due to a similar course of thought. The daughter appointed as a son being once recognized as a regular heir, (e) the daughter not appointed gained a place, (/) and in the passages cited as well as in Brahaspati (g) is mentioned without any men- tion of the wife. The texts were so far admitted as to the
(a) See Gautama Ch. XIX.; Baudhdyana, II., 2.
The Boman law furnishes an analogy in the case of slaves : ** quas vilitates vitae dignas observatione legum non credidit," and whose unions, even under the Christian system, remained mere concubin- age in law until late in the 9th century. See Milman Hist, of Latin Christianity, vol. II., p. 15; Lecky, History of European Morals, II. 67.
(6) D4ya Bhdga Chap. XI., Sec. II., 21.
(c) At 1 W. & B. (Ist Ed.) 310, 316.
(d) Cf. also Sankha and Likhita. Stokes' H. L. B. 411.
(e) Mit. Chap. I., Sec. XI., para. 3.
(/) Manu Chap. IX., 130 ; Narada Chap XIII., 60. (9) I>6ya Bb^ga Chap. XL, Sec. II., 8.
88 LAW OF INHERITANCE. [bOOK I.
SAdras, bat those specially fovourmg the wife as an heir, bearing only on the " patnl/* were not. (a)
§ 3 B. (4) Widows. — On failure of Hie three first descendants in the male line, of adopted sons, and in the case of SMras of illegitimate sons, a faithful widow inherits the estate of a separate householder, and the separate estate of a united coparcener.
See Book I., Chap. 11., Sec. 6, and for Authorities, see Book I., Chap. I., Sec. 2, Q. 4; Chap. 11., Sec. 6 A, Q. 11 ; Vyav. May. Chap. IV., Sec. VIII., p. 1, seq.
Under the strict HindA law only such a widow inherits who was a dharmapatni, ''a wife taken for the fulfilment of the law," who was lawfully wedded, and able to assist in the performance of the sacrificial rites, (i) As only a female married as a virgin could occupy such a position, the females who had been widowed and remarried (by Pit) were excluded from the succession to their second husband's property. By Act XV. of 1856 this disability has been removed, and the legal relation of wife to a husband, whether
(a) See Book I., Ch. II., S. 6, A. Q. 6, and the instance at Book I., Ch. v., S.II.,Q.land2.
The Salic and Burgnndian laws excluded women from inheritance to land. The Wisigoths more inflnenced by the Roman law admitted the danghter*B saccession, and this was in part adopted by the Franks. In England boc-land was heritable by females, bat in the folc-land they conld take no share. Hence possibly their exclasion by custom in some manors, see below.
(6) " A wife of the same class is indicated by the term * patni ' itself, which signifies union through sacrifice." Vtramit., Transl. p. 152. A wife of a rank below a " patni" wonld be entitled only to maintenance according to the Smriti Chandrika Ch. XI., and comments in Vlramit., Tr. p. 133, 153; to succession only on failure of the wife of equal class, and that by analogy only, the texts giving the right only to the " patnt," to whom the Smriti ChandrikA, loc. cit. paras. 11, 25, con- fines it. As to the relative rank of wives the first married has precedence. See Steele, L. C. 170.
INTRODUCTION.] DIVIDED FAMILY. WIDOWS. 89
she is technically a patni or not^ is recognized as giving a right of inheritance to the woman and legitimacy to the
children, (a)
If a householder leaves more than one widow they share the estate equally. See Book I., Chap. II., Sec. 6a, Q. 85 and 36.
Two or more widows are usually regarded as taking a joint estate i but this, though established by judicial decision in Madras and Bengal, does not appear to be the doctrine of the MitAkshar& or of the Vyavahira Mayflkha. (6) In Madras it has been thought that the interest of one only of the widows could not be sold.(c)
Proved adultery bars the succession of a widow to her deceased husband's estate. But if she has once obtained it, sabseqaent unchastity does not afford a reason for depriving her of it. See Book I., Chap. VI., Sec. 3, Q. 6, Remark.
Daring the widow^s survival no right vests in her hus- band's brothers or the other heirs. Her life with respect to the subsequent inheritance of heirs sought amongst her husband's relatives is as a prolongation of his. {d) Succes- sion on the widow's death opens to the husband's qualified heirs then in existence, [e)
(a) See Vyav. May. Chap. IV., Sec. VIII., para. 3. ; Steele, Law of Castes, 168, 169, 176, and the answers of the 6&Btris below, Bk. I., Ch. II., Sec. 6a.
(I) BuUkhidas Qovindas v. Keskavlal Chhotalal, B. H. C P. J. for 1881, p. 320; Koiarhasapa v. Chmverova, 10 Bom. H. C. R. 403. Comp. Rindamma v. Venkata Ramappa et al., 3 Mad. H. C. R. 268.
(cr) Kathaperumal v. Venkahai, I. L. R. 2 Mad. 194. ; Qajapathi NiU »»wn* V. Gajapathi Radhamani, 1 lb. 300 ; Bhtcgwandeen Doohey v. MynaBaee, 11 M. I. A. 487.
id) Eooder Chunder v. Sumhhoo Cktmder, 3 Cal. S. D. A. R. 106 ; Mmt. Jymvme Dibiah v. Ramjoy Chowdree. Ibid. 289.
(«) hixmi Narayan Singh et dU v. TuUee Narayan Singh et al., 6 Sol. 8. D. A. R. 282 (Calc); Nohvn Chwnder v. Isswr Chunder et al, 9 C. W. B. 508 C. R. ; Bhdskar Trimhak y. Mdhddev Rdmjee et al, 6- Bom. H. C. R. U, 0. 0. J. ; P. C. in Bhoohun Moyee Debia v. Bam Kishore ^charjee, 10 M. I. A 279. 12 u
90 LAW OF INHERITANCE. [bOOK L
The duties and rights attached to the married state are governed by the castomary law of the class or caste (a) which regulates the form of the ceremony as well as the relations arising from it. (6) The law of the caste has been more or less subordinated in cases of disagreement to the general Hindft law, (c) and private agreements are not allow- ed to control the customary law so as essentially to modify the obligations which it imposes, (d) as by making the union dissoluble which the law regards as indissoluble.
The heritable rights of the widow are mainly derived from a moral unity existing between her and her deceased hus- band, (e) The domestic fire must be maintained as a primary duty, and in its maintenance and the performance of the household rites the HindA wife must take part with her husband. (/) Thus, as the Mahabhftrat says : (flf)— *' A wife is necessary to the man who would celebrate the family sacrifices effectually." Hence the husband comes for some purposes to be regarded as " even one person with his wife'' (A)
(a) Ardaseer Cwrsefjee v. Perozehdi, 6 M. I. A. 348, 390; Moon' shee Buzloor Ruheem v. Shwmaoonuea, 11 Ih, 651, 611; Skinner v. Orde, 14 M. I. A. 309, 323; Rdhi v. Govind valad Tejd, I. L. R. 1 Bom. 97, 116; Reg. v. Samhhu Baghu, Ibid. 347; Mathmd Ndikin V. Em Ndikin, I. L. R. 4 Bom. 645, at 665 ss.
(fi) Gatha Ram Mistree v. Moohita Kochin Atteah Domoonee, 14 Beng. Law. Rep. 298 ; Rajkumar Nobodip Chundro Deb Bu/rmun v. Rajah Bir Chwndra Manikya, 25 C. W. R. 404, 414.
(c) Reg. V. Karsam Gojd, 2 Bom. H. C. R. 117, 126. Comp. Gaut. XI. 20 ; Manu II., 12, 18.
{d) Seetaram alias Kerra Heerah v. Mussamut Aheeree Heerimee^ 20 C W. R. 49.
(e) K&ty&yana cited in M. Williams' In. Wis. 160 ; Brihaspati in the Smriti Chandrik&, Ch. XI., Sec. 1, para. 4 ; Manu, IX., 45.
(/) Manu III., 18 ; Baudh&yan, Transl. p. 193.
(g) Manu III., 67; II., Q7 \ IX., 86, 87, 96; Apast. 99, 126,126 ; Coleb; Dig. B. lY., T. 414; Smyiti Chandrik&, Ch. XI., Sec. 1, para. 9.
{h) Manu IX., 45 ; Brihaspati, quoted by KullAka on M, IX., 187.
INTBODUCTION.] DIVIDED PAMaY. WIDOWS. 91
A3 nnder the Romau Law, ** Nupiice sunt divini jurin el humani communication The wife's gotra becomes that of her hasbaad; (a) her complete initiation is effected by her marriage; she renounces the protection of her paternal manes and passes into the family of her husband, (b) The connexion being thas intimate there should be no litigation between the married pair,(c) and according to Apastamba {d) there can be no division between them. Any property which the married woman may acquire is usually her hus- band's, (e) A thing delivered to her is effectually delivered to the husband, and what is received from her is as if received
(a) Steele 27 (n); infra B. I., Ch. IV. B., Sec. 6, H. (b), Q. 3; Miibhoy V. Cdssibdi, L. R. 7 I. A. at p. 231.
Under the Teutonic laws which recognized the birth-law of each as permanently adhering to him, there were exceptions (I) in the ease of a married woman whose coverture brought her under the birth-law of her husband, and (2) in that of a priest who came under the Roman law. See Savigny's History of the Roman Law, Chap. III.
(h) 2 Sfcr. H. L. 61 ; Sri Baghunadha v. Sri Brozokishore, L. R. 3 In. A. 191. So amongst the Romans. Dio. Halic. XL, 25.
W 2 Str. H. L. 58. Co. Di. B. III. Ch. I., T. 10. Conjugal rights were refosed to the husband where the lower courts thought that compelling the wife to go to his house would be dangerous to her personal safety. Uka Bhagvdn v. Bdi Hetd, Bom. H. 0. P. J. File for 1880, p. 322.
(d) See H&rtta in Smriti Chan., Ch. 11., Sec. 1, para. 39. Viramit., Trans, p. 59. Apastamba, Transl. p. 135.
(e) Vyay. May., Ch. IV„ Sec. 10, para. 7 ; Coleb. Dig. Book III. Ch. L, T. 10 ; N&rada II., XII. 89 ; Apast. 156 ; Mann VIII. 416 ; 1, Str. H. h 26. K&ty&yana quoted in Smriti Ohandrikft, Ch. IX., Sec. 1, para. 16. But see also Mit. Ch. II., Sec. 11. Rdmasami Padeiydtchi V. Virasdmi Padeiydtchi, 3 Mad. H. C. R. 272. She is liable in her strldhan only for a contract made jointly with her husband, while a woman contracting as a widow remains subject generally to the lia- bility after her remarriage. Narotam v. Ndnkd, I. L. R. 6 Bom. 473. ^ahdUhand v. Bdi Shivd, Ibid. 470. S. A. 261 of 1861; S. A. 467 of 1869. When living separate without necessity she is fully liable for her debts. Nathubhdi Bhdilal v. JavherEaijiy I. L. R. 1 Bom. 121 .
92 LAW OP INHERITANCE [boOK 1.
from him. (a) Her full ownership of her strtdhan is subject to the qualification that her husband may dispose of it in case of distress, and that her own power to alienate it is subject to control by him with the exception of the so-called Sau- d&yakam, the gifts of affectionate kinsmen, (b) See the Chapter on Stridhan.
The identity between the married pair being thus complete, Jagannatha cites Datta (c) to the effect that '^wealth is common to the married pair*' ; but this he explains as con- stituting in the wife only a secondary or subordinate property. Her right in the husband's estate is not mutual like the co- extensive rights of united brethren. It is dependent on the husband*s and ceases with its extinction, (d) Her legal existence is thus, in some measure^ absorbed during her coverture in that of her husband, (e) His assent is specially necessary to her dealings with land according to N&rada, Part I., Ch. III., p. 27-29. (/) In case of unauthorized transactions she is liable in her stridhan, but not in her person, (g) On her decease she shares in the benefit of
(a) Col. Dig. B. Y. Ch. YIL, T. 399 Comm. Her authority would, however, be revoked perhaps by adultery as under the English law, (See R. V. Kenny, L. R. 2 Q. B. D, 307), and the Indian Penal Code § 378, illuB. (o) assumes that her authority is limited by the extent of delegation from her husband. Comp. R, v. Hanmanta, I. L. R. 1 Bom. at p. 622. As to household expenses see Apast., Tr. p. 135.
(b) Beg. v. Ndthd Kaly&a et at, 8 Bom, fl. C, R. 11 Cr. Ca.; Tuhardm V. Qwnajee, Ibid. 129 A. C J. ; Vyav. May., Ch, IV., Sec. 10, pi. 8 and 10 ; Coleb. Dig., B. H., Ch. IV., T. 55 ; Bk. V., T. 478; Viramitro- daya, quoted below ; Manu II., 199 ; Smriti Chandrik&, Ch. IX., Sec. 2, para. 12 ; 2 Macn. H. L. 36.
(c) Coleb. Dig. B. V. T. 415. See also the Smriti ChandrikA, Ch, IX., Sec. 2, para. 14.
(d) Vh^mit., Transl, 165.
(e) See Manu IX., 199, as construed by the May<ikha. and Vira« mitrodaya.
(/) See also D. Bdyappardz v. Mallapudi Rdytidu et al., 2 M. H. C. R. 360.
(g) Nathubhdi v. Javher Bdiji et al.. In. L. R. 1 Bom. 121.
INTBODUCnON.] DIVIDED FAMILY. WIDOWS. 93
her husband's sacred fire, (a) her exequial ceremonies^ according to the Mitaksbard and the Nirnayasindu^ are to be performed by her husband, and in his absence by the mem- bers of his family, not by those of her own family of birth. Surviving her husband, and thus in a manner continuing his existence, {b) she procures benefits for his manes and those of his ancestors, (c) It is on her competence in this respect that according to tbe Smriti Chandrika (Trans, p. 151) her right to inherit depends. Dev^nda Bhatt therefore restricts the right to the " patni," refusing it to the wives of an inferior order, {d) and in the Viramitrodaya (e) it is said that " a wife espoused in the dsura or the like form has no right to the pro- perty when there is another espoused in an approved form," because "a woman purchased is not to be deemed a patnl, since she cannot take part in a sacrifice to the gods or the manes ; she is regarded as a slave,*' and '' a sonless wife other than a patnl is entitled only to maintenance even where the husband was separated."( /)
The MitaksharA also. Chap. II., Sec. 1, pi. 29, 6, {g) restricts the heritable right to the ''patnl,'* the "wedded wife who is chaste.*' Vijndnesvara allows this right to operate in favour of the widow only of a divided coparcener
(ff) Vlramit., Transl. 133.
(&) P. 0. mBhoobv/n Moyee Behia v. Bam Kishore Acharjee, 10 M. I. A. 279, 312. Momram KoUta v. Kerry KoUtany, In. L. R. 6 Calc. 776.
(c) Mann IX., 28. Yiramit., Tr. p. 133. K&ty&yana quoted in M. Williams In. Wis. p. 169. Manu and Brihaspati, quoted in Smriti Chandrikft, Ch. XI., Sec. I., paras. 14, 15.'
(d) So Yaradr^ja (Bumeirs Trans, p. 66) says, inheritance is pre- Bcribed by the texts in which " patni" is used ; maintenance only by those in which words of inferior dignity are employed. See D&ya B^,Ch. XL, Sec. 1, p. 49 (Stokes, H. L. B. 318); Vyav. May., Ch. IV., Sec. 8, p. 2.
(e) Trans, p. 132. (/) Trans, p. 193.
(g) Coleb. Dig. B. V., T. 399 ; and see Smriti Chandrikl, Ch. XI., Sec. 1, para, 4.
94 LAW OP INHBEITANCE. [boOK I.
(Ibid. pi. 30), but thus inheriting she obtains an ownership of the property [Ibid. Ch. I., Sec. 1, pi. 12), notwithstanding her general dependence (Ch. II., Sec. 1, pi. 25), (a) extend- ing even to a reversion vested in her husband (6) which enables her, as contended in the Vyav. May., above quoted, to deal with the estate for some purposes by way of alienation or incumbrance, (c) She has an estate in her late husband's property, not a mere usufruct, (d) and not the less by reason of her being authorized to adopt. ( e) Her husband's estate
(a) See also Yiramitr., Trans, p. 136, and Smriti Chandrik&, Ch. XI., Sec. 1, paras. 19, 28. (6) See Hurroaoondery Dehea v. Bajessuri Dehea, 2 C. W. R. 321. (c) Steele's Law of Oaste, 174, ss. Yiramitr. loc. oit.
{d) " Assuming her (the widow) to be entitled to the zamind&ri at all, the whole estate would for the time be vested in her absolutely for some purposes, though in some respects for a qualified interest ; and until her death it woold not be ascertained who would be entitled to succeed, " P. C. in Katania Natchiar v. Rajah of Shivaganga, 9 M. I. A. at p. 604.
In Moniram Kolita v. Keri Kolitani (I. L. R. 6 Cal. 776, S. 0. L. R. 7 I. A. 1 15) the Privy Council say at p. 789^: " According to the Hindu law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship— as to which see the Shivaganga case (9 M. I. A. 604) does not take a mere life-estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some re- spects for only a qualified interest. Her estate is an anomalous one, and has been compared to that of a tenant-in -tail. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. {Ihid. 604.) The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death. " The case was one under the Bengal law.
(e) TJmaswndmi Dahee v. Sourohinee Dahee, I. L. R. 7 Cal. 288.
INTRODUCTION.] DIVIDED t'AMILY. WIDOWS- 95
completely vests in her by way of inheritance, (a) not as a trust, (b) Her position has been assimilated to that of a tenant-in^tail ; (c) though for the purposes of alienation it has been said that she "has only a life interest in immoveable property whether ancestral or no.^{d) She represents the estate so that under a decree against her for arrears of rent ilae by her husband (e) and a sale in execution the whole interest passes, though, as is afterwards said, (/) the widow was in the particular case sued as representative of her son^ and it was intended that the son's interest should be sold.(^) **In a suit brought by a third person, the object of which
(a) Bhala Nahana v. Tarhhu Hari^ln. L. B. 2. Bom. 67. Ytramitr., Trans, p. 134 ; Ldlchand Bcmdaydl v. Qumtihdi, 8 Bom. H. C..B, 156,
0. C. J.
(b) Bhaiji Gtrdhur et at v. Bai Khushal, S. A. No. 334 of 1872 (Bom. H. C. P. J. P. for 1873, No. 63); Hurrydoss Butt v. Shreemntty Uppomiah Dossee et al., 6 M. I. A. 433.
(c) Katama Natchiar v. The Bajah of Shivaganga, 9 M. I. A. 669. See The Collector of Masulifatamv , Cavaly Vencata NarratnappaK SM,
1. A. at p. 550. A widow retains without security proceeds of land taken by a Railway Company, Bindoo Bassinee v. Boli^ Chund, 1 C. W. R. 125 C. R. She may claim a definition of her share (Jhunna Kuar ^' Chain Suhh, I. L.R. 3 All. 400) when her hnebandhas heen separate, but not when she has been assigned his portion by way of mainten- ance in an undivided family. Bhoop Singh v. Fhool Kooer, N. W. P.H.C.R.forl867,p.368.
(d) Vishnu Ganesh v. Wrdyan Pdndurang, (Bom. H. C. P. J. F. for 1875, p. 212) ; Bamundoss Mookerjea et al., v. Muset, Tarinee, (7 M. I. A. 169). See also, however, Lakshmibdi v. Gunpat Moroha, 5 Bom. H. C. R. 128 0. C. J. ; and Doe Bern Gohvchmoney Dabee v. Digambar %, 2 Bonln. 193 ; Girdharee Singh v. Kolahut, 2 M. I. A. 397.
(e) Kdmwadhani Venkata Subbaiya v. Joysa Narasi/ngappa, 3 M. H. C. R. 116; Mthd HaH v. Jamni, 8 Bom. H. C. R. 37 A. C. J. But ««eL.R.2I. A.281below. (g)
(/) The General Manager of tlie Baj Burbhunga v. Maharajah Cocmar Bamaptiising, 14 M. I. A. 606.
ig) Bttijun Boobey et al. v. BriJ Bhookun Lall, L. R. 2 In. A. 281. The extent of the interest of the widow sold in execution thus depends on the nature of the action. Jotendro Mohun Tagore v. Jog id Ki^hore, l.L.E.7Cal.357.
96 Law O^ iNBEEiTANOE* [feoOS I
is to recover or to charge an estate of which a Hindfi widow is proprietress^ she will as defendant represent and protect the estate as well in respect of her own as of the reversioDary interest.'^ (a) "She would/* as said in another Case, '*com* pletely represent the estate, and under certain circumstances, the statute of limitations might run against the heirs to the estate, whoever they might be/' (6) Those *' heirs/* aft pointed out in Musst, BJiagbiitti Ball v. Chowdry Bholanath Thdkoor et al„ (c) have not, during the widow's Kfe, "a vested remainder" according to the language of the English law, *' but merely a contingent one.'* The "reversioner," therefore, as he is in some places called^ cannot, during a widow's life, obtain a declaration that he is entitled next in succession, {d) Nor can his contingent right be sold in execution. But the widow may, with the consent of first reversioners, relinquish her right in favour of
(a) Seetul Pershad v. Mttsst. Doolhin Badam Konvrwr et al, 11 M. I. ■ A. 268. " The role that a decree against a widow binds the reversioner is subject to this qualification that there has been a fair trial in the former suit." Markby, J., in Brammoge Dossee v. Ki-isto Mohun Mookerjee, I. L. R. 2 Cal. at p. 224. The widow must protect the estate as well as represent it. Nogender Chwnder Qhose v. Sreemutty Kaminee Dossee, 11 M. I. A. 241 ; cf . Jenkins v. Rohertsorh L. R. 1 Sc. App. at 122.
(6) Tarinee Chum Oangooly et al v. Watson ^ Oo., 12 0. W. R. 413 ; Nobinchunder et al. v. Gwni P&rsad Doss, B. L. R. 1008 F. B. : Nand Kumar et al v. Badha Kuari, In. L. R. 1 All. 282. Raj BuUubhsen v. Oomesh Chunder, I. L. R. 5 Cal. 44 ; Noferdos Boy v. Modhusoandari, I. L. R. 5 Cal. 732 referring to Shama Soonduri v. SunU Chunder Dutt, 8 C. W. R. 600, and Gxmga Pershad Kur v. Shwmbhoo Naih Burmon, 22 C. W. R. 393.
(c) L. R. 2 In. A. 261 : see also Amritolal Bhose v. Bajonee Kant Mitter, Ibid. 113; and Doe Dem Qohickmoney Dabee v. Diggwmber Day, 2 Bouln. 193 ; B^oder Chunder v. Sumbhoo Chunder, 3 C S. D. A. R. 106; Musst. Jymunee Dihidh v. Eamjoy Chowdree, Ibid. 289; 2 Tayl. and Bell 279.
(d) Pranputty Kooer v. Lalla Futteh Bahadv/r Svngh, 2 Hay, 608 ; Shama Soonduree et al v. Jumoona, 24 C. W. R. 86.
IirrBODUOTION.j DIVIDED FAMILY. WIDOWS. 97
second, (a) He may howev^er protect the estate against an improper alienation or waste, (b) That the widow and the ** immediate reversionary heir'* together may deal as they please with the property, is a proposition (c) that must now be read as qualified by the language of the Privy Council, "a transaction of this kind may become valid by the consent of the husband's kindred, but the kindred in such a case mast be understood to be all those who are likely to be interested in disputing the transaction/' {d) A suit against the widow is not open indiscriminately to every one in the line of succession. The nearest heir is the proper person to sne; remoter heirs must assign a sufficient reason for their claim to sue. (e)
The Hindd law does not, it would seem, recognize vested
or contingent remainders or executory devises (/) in the
i — — — '
(a) Protap Chtmder Roy v. 5. Joymonee Dabee Chowdhrain et at., 1 C. W. R. 98.
(6) Bhikdji Apdji v. Jagann&th Vithal, 10 Bom. H. C. R. 351. Chottoo Misser v. Jemah Miseer^ I. L. R. 6 Cal. 198 ; Rani Anwnd Kunwar v. The CouH of Wards, I. L. R. 6 Cal. 764, 772. " The mere coDcnrrence of a female relation," it was said, ** albeit the nearest in succession, cannot be regarded as affording the slightest presumption that the alienation was a proper one." Varjivan v. Ghelji Gokaldae, I. L. R. 6 Bom. 563. The concurrence was that of the daughter^ who, failing the widow, would take absolutely whether as heir to her mother or to her father. Infra Bk. I., Oh. II., § 14, I. A. 1 A. 3. See ttticle on Stridhan. In Sia Baei v. Gur Sahai, I. L. ft. 3 All. 362 it was held that a remoter reversioner who had assented to a particular disposal by a widow and the heir next interested could not after* wards question the transaction. See also Raj BuUuhh Sen v. Oomeeh Chwnd&r Rooz, I. L. R. 5 Cal. 44.
(c) S. Jadamoney Dahee v. Saroda Prosono Mooherjee et at, 1 Bouln. 120; Mohunt Kishen Qeer v. Buegeet Boy and others, 14 C. W. R. 379.
(d) Raj LuhheeDehia v. Ookool Chandra Chowdhry, 13 M. I. A. 228. Seeaho Koover Goolah Sing v. Rao Kuran Singh, 14 M. I. A. 176 S. C. I. L. B. 2 All. 141.
(•) Rani Anand Koer v. The Cou/rt of Wards, L. R. 8 I. A. 14. if) See Musst. Bhoohun Moyee Debia v. Bam Kxshore Acharjee Ch<nodhry, 10 M. I. A. 279. Uh
98 LAW OF INHEEITANOB. [bOOK I.
exact sense of the English law. (a) It assigns to the widow either an ownership of the property merely for use, a« ia Bengal, (b) with a special power in case of absolnte necessity to mortgage or sell it for her subsistence or other approved purposes ; (c) or else, as under the Mit&kshar& law, an owner- ship fully vested subject only to restrictions on alienation, (d) at least of immoveables, (e) arising from her dependence or the recognition of interests that the estate must provide for.
(a) See Col. Dig. B. v. T. 76. Com. ad fin. A devise to several sons with cross remainders in favour of the survivors is good under Hindtllaw, but the testamentary power as to '* contingent remainders and executory devises is not to be regulated or governed by way of analogy to the law of England, which law applies to the wants of a state of society widely differing from that which prevails amongst Hindds in India." Willes, J., in the Tagore case, L. R. S. I. A. at p. 70, quoting Bhoohun Moyee Delia v. Earn Kishore Chowdry, 10 M. I. A. 279. In the case in question the interest of the heir' expectant is a mere contingency not saleable. Ramchandra Tantra DdsY. Bhcurma Narayan Chiickerhutty, 7 Beng. L. R. 34.
(b) D&ya Bh&ga, Ch. XI., Sec. 1, pi. 56. Thus it is, perhaps, that in Bengal the limited character of her right being emphasized a surrender by a widow to the then next heirs immediately vests the property in them in possession as if she had then died. Noferdosi Hoy V. Modhu Soonduri Bwmonia, I. L. R. 6 Cal. 732.
(c) D&ya Bh&ga, Ch. XI., Sec 1, pi. 62; Chundrahu!ee Bebia v. Brody, 9 C. W. R. 584 ; Lakshman Bamchandra Joshi and another v. SatyabMmdhdi, I. L. R. 2 Bom,, at p 503 et ss. See the opinion of Sir W. Macnaghten in Doe Dem Onnganarain v. Bulram Bonnerjee, East's Notes No. 85, 2 Morley's Digest at p. 155, but also the judgment of East, C. J., in Coesinaut Bysack et al. v. Htmroosoondry Dossee et aU No. 124, at p. 198 of the same volume, with which may be compared the remarks of H. H. Wilson in vol. V. of his works, pp. 1 ss.
(d) See the judgment of Sir M. Westropp, C. J., in Bhdld Kah&nd v. Parbhu Hart, above quoted ; Vyav. May. Ch. lY., Sec. 10, pi. 8 ; Mit. Ch. II., Sec. 1, pi. 31, 32; Colebrooke, in 2 Str. H. L. 272, 407: and Ellis, ibid,, 208.
(e) Vtramit., Transl. p. 1 38 ss. Bhaiji Qirdhur ei al. v. Bdi Kkushd, Bom. H. C. P. J. F. 1873 No. 63; Bam Kiehen Singh v. Cheet Bannoo, C. W. R. Sp. No. 101; DoorgaDayee v. Poortin Dayee, 5 C. W. R. 141 ; Muteamut Thakoor Dayhee v. Bai Balack Bam, 10 C. W. R. 3 P, ۥ
INTRODUCTION.] DIVIDED FAMILY. WIDOWS. 99
The analogy of the law of partition is applied by the Mitak* shari^ Gh. II., Sec. l^and by the Subodhini, to the determina- tion of her estate, (a) She may sell or incumber theproperty principally^ besides payment of her husband^s debts and her own necessary subsistence, (6) for two objects, the fulfilment of religious duties and the grant of charitable donations, (c) Gifts in EIrishnarpan have been looked on with much favour by the Bombay SSlstris, who say that the property may be disposed of for necessaries, for charity, and for the main- tenance of the husband's business, {d) A pilgrimage may be undertaken at the coat of the estate, (<?) and a daughter may be portioned out of it. (/) The gift of one-half of the property in '^ Krishn&rpan*' (ff) would now hardly be sanc- tioned, and the right assumed in some instances by a mother to fulfil in this way a supposed duty to the deceased, would certainly be disallowed, (h) Nor can the mother strip the
(a) See below Partition; Coleb. Dig. B. v. T. 87, Comm.;2 Sbr. EL. 383.
(b) SahhArdm v. Jdnkibdi, Bom. H. C. P. J. File for 1878, p. 139. WN&rada, Pfc. I., Ch. III., 6lokas 29, 30, 36, 44; Raj Lukhe^
Dehia v. Ookool Chandra Ckoxvdh-y^ 13 M. I. A. 209 ; Yyav. May. Ch. IV., Sec. 8, p. U.
The separation of the estates of spouses contemplated by the Teuto- iiic Codes was sometimes prevented by mutual donation which they allowed, and by which the survivor took the usufruct of the whole for life. This was accompanied by a right to alienate for an urgent necessity or for pious uses according to the Bipuarian Laws Tit. 48, 49.
(d) See below, Ch. II., S. U, I. A. 4, Q, 10 ; and Kupoor Bhuwanee y- Sevukram Seoshtmker, 1 Borr. 448.
(c) Mutteeram Kowar v. Qopaul Sahoo, 11 B. L. R. 416. (/) Noft. L. 0. 638; Steele L> C. 176.
(i^) As in Ch. II., Sec. 14, 1. A. 4, Q. 10 ; see Ellis in 2 Str. H. L. ^» ^10; Kartick Chunder v. Gour Mohun Boy, 1 C. W. R. 48 (» ^gal case).
W Q. 726, 727 MSS. Surat, A. D. 1847. Custom seems in "^y instances to have assigned to the surviving mother a position •^periortothat of her son's widow. Examples are to be found in ^rradaUo'g Caste Roles, and see Steele L. C. 176. N&rada, Transl-
100 LAW OP INHERITANCE. [bOOK I.
widow of the estate by an adoption to the deceased's father, (a) In Bengal the Courts have given effect to a widow's resigna- tion of the succession in exchange for an annuity^ (b) and to her relinquishment with consent of first '^ reversioner'* in favour of second, (c)
A widow may borrow money on the estate for its effectual cultivation. (d) But she has no authority to waste the pro- perty. '^ Although according to law of the Western Schools (e) the widow may have a power of disposing of moveable pro- perty inherited from her husband^ (/) which she has not under the law of Bengal^ she is by the one law as by the other restricted from alienating any immoveable property
p. 19. The very early age at which a Hindtl wife joins her husband enables the mother-in-law to assert a supremacy which in many cases is retained for life, even after the husband's death. Inheritance by the mother does not under such circumstances appear unreasonable, especially when the widow is still very young, " Sharpe remarks of ancient Egypt that * here as in Persia and Judaea the king's mother
often held rank abo^e his wife/ In China there exists the
supremacy of the female parent second only to that of the male parent, and the same thing occurs in Japan." H. Spencer in Fortnightly Review No. 172 N. S., p. 628.
(a) Bhoobun Moyee Dehia v. Ram Kishore Ackarjee, 10 M. I. A. 279. If a widow and a mother adopt different boys, the one adopted by the widow takes the estate, Q. 1761, MSS. See below Ch. II., Sec. 6 A., Q. 22.
(6) Shama Soonduree et al. v. Shurut Chunder Dutt et ah, 8 C. W. R. 600; Lalla Koondu Lall et al. v. Lalla Kalee Pershad et al., 22 Ibid. 307 ; Gunga Per shad Kur v. Shumbhoonath Burmun et al,, 22 Ibid. 393.
(c) Prot^p Chunder Roy v. 8. Joymonee Dabee Chowdhrain et al., 1 C. W. R. 98.
(d) Koor Oodey Singh v. Phool Chund et al, 6 N. W. P. R. 197.
(e) Munsooh'dm v. Prdnjeevandds et al., 9 Harr, 396 ; Oojulmoney Doesee et al v. Sagormoney Doesee, 1 Taylor and Bell, 370 ; Hurrydoss Dutt V. Rungunmoney Doesee et al., 2 Ibid. 279 ; Ooluckmoney Dabes V. Diggumber Day, 2 Bouln. 201 ; Bhdld Ndhdnd v. Parbhu HaH, I. L. R. 2 Bom. G7.
(/) See Ndrada I., III., 30; Prdnjeevandds et al v. Dewcoorbdi •i al, 1 Bom. H. C. fe. 130.
INTRODUCTION.] DIVIDED FAMILY. WIDOWS. 101
which she has so inherited/* (a) alienatiog, that is, without a special justification. Thus she cannot, as against the collateral heirs, alienate by a mere deed of gift. (6) A sale made by her without authority may, according to several decisions, endure for her own life, but any one proposing to take a greater interest is bound to prove a necessity for the sale, or at least a jprimd facie case of necessity, (c) If how- erer the purchaser acts in good faith, the transaction is not wholly vitiated by some excess of the widow's powers as rigor- ously construed, and he is not bound to see to the appli- cation of the purchase-money, (d)
(a) UvLui. Thakoor Deyhee v. Bai Baluk Bam, 11 M. I. A. 176,
cM in Brij Indar Bahadur Singh v. Bdni Janhi Koer, L. R. 5 I.
A. 15. Coiebrooke and Ellis in 2 Str. H. L. 407 bs. ; and Bdi Amhd
T. Dcmodar Ldlhhal et al, 8. A. No. 217 of 1B71, decided 11th
Angust 1871 {see Bom. H. C. P. J. F. for 1871). Steele L. C. 175.
Bhugwandeen Doobey v. Myna Bdi\ 11 M. I. A. 487.
(h) Keerut Sing v. Koolakul Sing et al., 2 M. I. A. 331.
(c) Gorya Ealya v. JJndri et ah, S. A No. 455 of 1873 (Bom. H. C.
P. J. F. for 1874, p. 126) ; Bhau Venhohd v. Govind Teewant, Bom. H.
C. P. J. for 1878, p. 60 ; Kamesvar Prasad v. Bun Bahadur Singh, I.
L. R. 6 Cal. 843 (P. C); Maydrdm v. Motdrdm, 2 Bom. H. C. R. 313;
Melgirappa v. Shivdppa, 6 Bom. H. C. R. 270, A. C J.; Musst
Bhaghutti Daee v. Chowdry Bholanath Thakoor et al, L. R. 2 In. A.
261 ; Govind Monee Bosses v. Sham Lai Bysack et a/., C. W. R., F. B.
R 165; The Collector of MasuUpatam v. Cavaly Vencata Norrainappah,
8 M. I. A. 529 ; Cavaly Vencata Narrainappah v. The Collector of
Masulipatam, 11 M. I. A. 619 ; Raj Ltilchee Delia v. Gokool Chandra
Chowdhry, 13 M. I. A. 209 ; Kooer Goolah Singh et ah v. Rao Kurun
^ng, U M. I. A. 176 ; Bhaiji Girdhur et al v. Bdi Khushal, Bom. H.
C. P. J. p., 1873 No. 63. A widow can dispose only of her widow's
estate in her deceased husband's property, " and that estate would
determine either upon her death or upon her second marriage," per
Westropp, C. J., in Gurunath Nilkanth v. Krishnaji Govind, I. L. R 4
Bom. 462, 464, S. C. Bom. H. C. P. J. for 1880, p. 69.
(d) Phoolchund Lall v. Rughoohun Suhaye, 9 C. W. R. 108. Com- pare Hunoomanpersaud Panday v. Musst. Bahoyee Munraj Koonweree, 6M. I. A. 393. See also Kamikhaprasad et al v. Srimati Jagadamba J><isi et al, h B. L. R. 508. The creditor must enquire as to the pnrpoae and must explain the instrument to the widow. Baboo Kametwar Prasad v. Run Bahadur Singh, L. R. 8 I. A. at pp. 10, 11.
102 LAW OF INHEBITANOB. [bOOK I.
On© of the causes justifying an alienation of the estate is payment of the husband's debts. The widow is bound to discharge them, (a) Not, however, if barred by limitation, according to a dictum of the Bombay High Court, (6) though she is not bound to avail herself of that plea, (c) any more than is a managing member in the case of an ancestral debt. Yet his acknowledgment would not, it has been said, revive the barred debt, except as against himself, (d) A re* striction of the power to pay debts out of the estate might however be regarded perhaps as trenching in some degree upon the religious law of the Hindds. How strong the obligation is which that imposes may be seen from Bk. I., Ch. II., Sec. 6 A., Q. 7, and Ndrada, Pt. I., Ch. HI., 18. The mere recital in a widow's deed of sale of the object is not enough to prove it. There should be a concurrence of the relatives interested, (e) For her own debts the estate after her death is not answerable. (/)
The widow's powers of alienation are not enlarged by there being no heirs to take on her death. The State then succeeds; and the restrictions are inseparable from her estate, (g) The rule applies to the widow of a collateral
(a) Gopeymohwi v. Sebtin Cower et cU., East's Notes, case No. 64.
(b) Melgirdppd v. Shivappd, 6 Bom. H C. B. 270 A. C. J., supra,
(c) Bhdld Ndhdnd v. Parbhu Hart, I. L. R. 2 Bom. 67 supra.
{d) Gopalnarain Mozoomdar v. Muddomutty Guptee, 14 B. L. R. ^,
(«) Raj Lukhee Dehia v. Gokool Chandra Chowdhry, 3 B. L. R. 57 P. C.
(/) Chundrahulee Delia v. Brodn/, 9 G. W. R. 584; Choitoo Misser T. Jeniah Mieser, I. L. R. 6 Gal. 198.
(g) The Collector of Masulipatam v. Cavaly Vencata NarrairiappaK 8 M. I. A. 600. For the grounds which have been deemed to justify a widow's alienation of property see Umrootram v. Nora' yandas, 2 Borr. R. 223 ; Gopal Chunder v. Gour Monee Dossee et al, 6 0. W. R. 62; Raj Chunder Deh v. Sheeshoo Rayn Deh et al, 7 Ibid. 146 ; Runjeet Ram v. Mohamed Waris, 21 Ibid. 49 ; as to the burden of proof, Munsookrdm Munkisordds v. Prdnjeevandds et ah, 9 Harr. R. 896. Ratification of a lease by a widow, Mohesh Chu7ider Bose et al, v. Ugrakant Banerjee et al, 24 0. W. E. 127 C. R.
INTRODUCTION.] DIVIDED FAMILY. WIDOWS. 103
succeeding in default of nearer beirs. (a) It will be seen below, Bk. I., Chap. II., Sec. 9, Q. 7, that the restriction is applied to a mother inheriting from a son, though such pro* perty is commonly reckoned as strldhan.(6) On this point see further in the Chapter on Stridhan.
Two or more HindA widows of the same man, according to the general doctrine, inherit from him a joint estate; ( c) and though they enjoy separately, the estate still remains joint according to the later decisions, (d) so that grandsons, through a daughter of one widow, who had been awarded a separate enjoyment of a moiety, were excluded by the co-widow, (e) A right to partition as between two widows does not, it has been said, exist in ordinary cases, (/) but the Vyavahara Mayflkha (Ch. IV., Sec. 8., pL 9,) says, " If more than one, they are to divide.'' {g) So too the Virami- trodaya, Transl. p. 153 : "Wives of the same class with the husband shall take the estate dividing it amongst them.'' This, which is the doctrine of the MitlLkshar& also, Ch. IL, Sec. 1, para. 5, though omitted by Colebrooke, seems to have been recognized as the law in Bombay, {h) and the
(a) Bharmangavdd v. Rudrapgavda, I. L. R. 4 Bom. 181.
(h) Vinayek Anan&rdo ei al. v. Lukshmibcd et al, 1 Bom. H.C. R. 117.
(c) Bhfugioandeen Doobey v. Myna Bdi, 11 M. I. A. 487 ; each an «qQal share according to Thakurain Bamanund Koer v. Thakuradn J^hunaih Koer cmd another, L. B. 9 I. A. 41.
(d) Shri Oajapathi Nila Mani Patta Mahadevi Garu v. Shri OajapatM Radhamani Patta Maha Devi Garu, L. R. 4 I. A. 212; S. 0. I L. R. 1 Mad. 290.
(e) Rindamma v. Venkataramappa et al., 3 M. H. 0. R. 268 ; see Bk. I., Ch. II., Sec. 6 A., Q. 39, 40.
(/) Jijoyiamha Bayi et at v. Eamakshi Bayi et al., 3 M. H. C. R. ^24; Kathtiperamul v. Venha:bai, I. L. R. 2 Mad. 194.
(g) See Stdkes* H. L. B. 86, 62 and note (a). To the same effect i« the Smriti Chandrika, Ch. XI., Sec. 1, pi. 57. So 2 Str. H. L. 90.
{h) Bumea (applicant) v. Bhagee (caveatrix), 1 Bom. H. C. R. 66, where cases are cited from Bengal and the N. W. Provinces. See below, Bk. I., Ch. IL, Sec. 14, I. A. 1, Q. 3, where the answer
104 LAW OF INHERITANCE. [bOOK I.
right by survivorsliip of one of two widows was not appar- ently recognized in the case of Raj Lukhee Debia v. Ookool Chandra Ohowdtry ; {a)8ee Bk. I., Ch, II., Sec. 6 A., Q. 85, 36.
On the death of a widow the Bengal law gives the inherited property to the then existing next heir of the last male owner. In Bombay the succession varies, as it is go famed by the law of the Mit&kshar^ or of the Vyavahara Mayftkha. These authorities agree to a certain point and then diverge widely. See below, Bk. I., CL IV., and the chapter on Strtdhan. The widow of the nearest male sapinda of a prO'deceased husband, there being no male lineal descendant in the nearest collateral line, was, in B&i Ambd v. Ddmodar LalhhSi,(b) pronounced on that ground to be the heiress of a HindA widow deceased.
§ 3 B. (5) Daughters. — On failure of the first three deacendaivts in the male line, of adopted sons, and of a widow, a daughter inherits the estate of a separate householder, and the separate property of a united coparcener. An unmarried daughter hn^ the preference over a married one, and a poor married one over a rich married one,
See Book I., Chap. 11., Sec. 7; and for authorities, see Book L, Chap. I., Sec. 2, Q. 4; Chap. II., Sec. 7, Q. 19. Mit. Chap. II., Sec. 2, pp. 1 to 4; Sec. XL para, 13.; and Vyav. May., Chap. IV., Sec. 8, p. 10 ss.
If there are several daughters living in the same condition, t. c. being all unmarried, or all married and poor, or all
implies a succession to separate interests by the two widows, and above p. 89, The equal widows not having an independent joint ownership along with their husbands as in the case of undivided sons would not be subjects of unobstructed inheritance aooording to Yijn&nesvara's idea, but rather of an ownership descending on each as to her own portion, which implies at least a mental partition.
(a) 13 M. I. A. 209.
(b) See Bom. H. 0. P. J. F. 1871. S. A. No. 217 of 1871.
INTBODUOnON.] DIVIDED FAMILY. DAUGHTERS. 105
married and rich, they share the estate of their father equally. See Book I., Chap. II., Sec. 7, Q. 19. The cir- cumstance of having or not having a son is in Bombay mdifferent»(a)
In Srimaii TJma Devi v. Ookulanand Das Mahapatra (h) the Judicial Committee adopted the statement of the Benares law given in 1 Macn. H. L. 22, *' that a maiden is in the first instance entitled to the property ; failing her, that the succession devolves on the married daughters who are indigent, to the exclusion of the wealthy daughters; that, in default of indigent daughters, the wealthy daughters are competent to inherit; but no preference is given to a daughter who has or is likely to have male issue, over a daughter who is barren or a childless widow/^
The preference of the unmarried daughters over the married ones seems to be founded on the principle that, be- fore all, a suitable provision for the marriage of daughters must be made. For the historical origin of the 'daughter's right of succession see Bhiu Ninaji XJtpdt v. Sundrdbdij(e) Simmani Ammdl v. Muttamm&lj {d) and above p. 84. (e)
Regarding the case where a Sftdra leaves a daughter and an illegitimate son, see § 3 -S. (3), above p. 81 ss.
In the case of Amritolal Bose v. Rajoneehant Mitter,{f) the Privy Council say, '^ There is a great analogy between the caae of widows and that of daughters, though the pretension of daughters is inferior to that of widows.^^ Daughters in
(a) Bdkubdi v. Manchdbdi, 2 Bom.'H. C. R. 5; Poll v. Narotum Bapuet al, 6 Bom. H. C. R. 183, A. Ot J. W 9 M. I. A. at p. 542.
(c) 11 Bom. H. 0. R. 249, 273.
(d) I. L, R. 3 Mad. 265, 267.
(«) The very gradual establishment of daughter's rights of succes- Mon in Ireland and other countries in Europe is shown in O'Curry's Lectures, Introd. by Dr. Sullivan, p. 170 ss.
(/)L.R.2In.A. 113.
106 LAW OF INHEErTAKCB. [booK 1.
Bombay, however, occupy a position superior to widows, according to the prevailing doctrine as to the restrictions on a widow^s estate, as they may freely dispose of the property of their fathers, which they have taken by inherit- ance, their estate being regarded as absolute, (fl) They take, moreover, in the Bombay Presidency, separate interests excluding the right of survivorship (6) contrary to the rule applied in Bengal {c) and Madras, (d) Nor have they in Bombay been regarded hitherto as mere life-tenant8,(e) as to some extent they appear to be in Madras (/ ) and Bengal, {g)
(a) See Haribhdt v. Ddmodarhhat, I. L. R. 3 Bom. 171, and the cases there cited, and Bdbdji v. BdUji, I. L. R. 5 Bo. 660 ; Strimutlu Muttu Vizia Bagunada Ratii v. Dorasinga Tevar, 6 Mad. H. C R. p. 310. See, however, MuHa Vaduganadha Tevar v. Dorannga Tevwr, L. B. 8 I. A. 99, 108, a Madras case.
(b) Buldkidds v. KeshavUl, I« L. R. 6 Bom. 85, referring to I. L. R. 3 Bom. 171 supra,
(c) Amritolal Bose v. Ttajoneekant Milter, L. R. 2 1. A. 113. {d) 6 Mad. H. C. R. 310 supra (a).
(e) See I, L. R. 3 Bom. 171, and the cases there cited.
if) Simmani Ammdl v. Mu4tammdl, I. L. B. 3 Mad. at p. 268.
{g) Dev Pershad v. Lujoo Roy, 20 C. W. R. 102 ; Dowlui Kooer v. Burma Deo Sahoy, 22 C. W. R. 65, C. R. quoting The CoUedor of MasuUpatam v. Oavaly Vencata Narrainappah, 8 M. I. A. 551, and Musmmat Thakoor Deyhee v. Rai Baluk Ram, 11 M. I. A. 172. But in 1 Str. H. L. 139, 2nd ed., (pp. 160-161, Ist ed.) it is said : "Accord- ing to one opinion, not only the sons of daughters, but the daughters of daughters also inherit, in default of sons, but this does not appear to have been sustained ; on the other hand, where there are sons, their right of succession is postponed to that of other daughters of the deceased ; and, where such sons are numerous, when they do take, they take per stirpes and not per capita. Authorities postpon- ing still further their right have been denied ; but the succession in the descending line from the daughter proceeds no further, the funeral cake stopping with the son ; which is an answer to the claim of the son*s son, grounded on the property baring belonged to his father. Neither, according to Jtmtlta Y&hana, on failure of issue, does the inheritance, so descending on the daughter, go, like her strt- dhana, to her husband surriving her^ but to those who woold hafa
INTEODUCTION.] DIVIDED FAMILY. DAUGHTER'S SONS, 107
Barrenness is not as in Bengal a cause of exclusion^ (a) the
theory on wliich the daughter is admitted in Bombay being
essentially different.
§ 3 B. (6) Daughteb's Sons. — On failure of ihe three first descendants in the male line^ of adopted sons, of widows, antd of daughters^ a daughter's son inherits the estate of a separate grihastha, and the separate property of a united coparcener.
See Book I., Chap. 11., Sec. 8 ; and for Authorities, see Book I., Chap. II., Sec 8, Q. 1 and 5.
Regarding the case where a SAdra leaves an illegitimate son, and a daughter's son, see above § 3 J5. (3), pp. 85, 86.
If a separate householder leaves two daughters, one of whom dies after her father, but before the division of his estate has been effected, leaving at the same time a son, this son, according to the doctrine of the Bombay Sastris, will inherit the share which would have fallen to her. See Remarks to Book I., Chap. II., Sec. 7, Q. 1 and 8. This view is supported by the analogous case of the ^'brother and the brother's sons,'' regarding which the Mit^lksharft, Chap. II., Sec. 4, para. 8, states expressly as follows: —
" In case of competition between brothers and nephews, the nephews have no title to the succession, for their right
mcceeded, had it never vested in sach daughter ; but by the South- ern authorities, it classes as stridhana, and descends accordingly. And, upon the same principle, the husband is precluded during her life from appropriating it, unless for the performance of some indis- pensable duty, or under circumstances of extreme distress. Whereas the daughter's own power over it is greater than that of the widow of the deceased, whose condition is essentially one of considerable restraint.*' And the Privy Council recognize a possible difEerencein favour of the daughter,* though this is now superseded by what is . said in Muttu Vaduganadba Tevar's casef against women's trans- mitting to their own heirs property which they take by inheritance. (a) Simmani Ammdl v. Muitammdl, I. L. R. 3 Mad. 266.
^ Hurrydo88 IkUt Y. Sreemutty Uppoomah Dossee, 6 M. I. A. 445. t L. E. 8 I. A. 99, 109.
108 LAW OF INHEEITANCE. [bOOK I.
of inheritance is declared to be on failure of brothers (see Sec. 1, p. 2.) However, when a brother has died leaving no male issue (nor other nearer heir), and the estate has coDse- quently devolved on his brothers indiflTerently, if any of them die before a partition of their brother's estate takes place, his sons do in that case acquire a title through their father /'(a)
That the principle laid down in this passage is applicable also to the case of the daughters and daughters' sons fol- lows from the maxim of interpretation, according to which a rule given for a special case is applicable to all analogous cases, though no indication to that eflTect may have been given. For, the Hindfl law-books often give, as the Sastris express it, only the" dikpradarsana,*' the indication of the direction, not exhaustive rules. Examples showing that the authors of the Mitakshara and Mayiikha and other works interpreted the ancient Smritis in this manner are frequently met with. Thus, the rule that unmarried daughters inherit before married ones [see above § 3 2?. (5) ] is given by Gau- tama with respect to the succession to their mothers' stri- dhana, {see Gautama 28, SA. 21). But both Vijnanesvara and Nilakantha apply it also to the daughters' succession to their father's property. From the analogy of the case of "brothers and brothers' sons," it follows also that in no other case, than the one just considered, do daughters' sons share the inheritance with daughters.
Such is the doctrine prevailing in Bombay where each daughter, taking a present right by inheritance, is thought on her death to transmit it to her own proper heirs subject } in this case to the qualification founded on special texts.(6) See Bk. L, Ch. IV., B. § 1, § 4; Ch. II., Sec. 8, Q. 1. Where daughters are regarded as taking as a class, with survivorship as in Madras [see above § 3 B. (5)] a different rule prevails. . The son is not such a co-owner with his mother according
(a) Seo Bmnprasad Tewat-ry v. Sheochum Boss, 10 M. I» A. 504. (6) See Mit. Ch. II. Sec. II. para. 6; Ch. I. Sec. XII.
INTRODUCTION.] DIVIDED FAMILY. MOTHER. 109
to that doctrine as to replace her in the group of successors to her father. It is consistent with this that daughter's sons take per capita not per stirpes as they would by identifi- cation in rights with their mothers. See Bk. I., Ch. II., Sec. 8, Q. 1, 2; but a brother's sons too are excluded by brothers, yet succeed to an interest, which, to use an English expres- ^on, had become vested in possession in their father before his death.
The text of Y&jnavalkya on which the different doctrines are based is not in itself suflSciently explicit to make either of them untenable. The former is the one more consonant to Vijnanesvara's general principle of a woman's capacity to take and transmit complete ownership by inheritance : the variation from the general scheme of succession to females by bringing in the daughter's sons in this particular case before the daughter's daughters gives a liberal, though not indisputable, effect to the text instead of reducing the daughter's right to a mere life estate interpolated in the re- gular series of successions. The succession of the daughter's son to the interest inherited by his mother but not entered on by her in actual separate enjoyment agrees exactly with the rule given by Nilakantha in the Vyav. Mayukha for the further succession to property which has passed to * female by inheritance. It goes, ho says, to heirs according to such relations as if she were a man, (a) and the first in this series is the son or group of sons of the last owner. Daughters according to him take separate interests [b) sepa- rately heritable.
J 3 B. (7) The Mother. — On failure of daughters' sons, the mother {except in Oujardt) inherits the estate of a separate householder, the separate estate of a united co* parcener, as also the estate of a paying student (upakur* vana Brahmachdrt.)
(«) Vyav. May<ikha Ch. IV. Sec. X. para. 26 (^) Vyav. May<ikha Ch. IV. Sec. VIII. para. 10.
110 LAW OP INHERITANCE. [boOK I.
See Book I., Chap. 11., Sec. 9 ; and for Authorities see Book I., Chap. I., Sec. 2, Q. 4; and Chap. II., Sec. 9, Q. 1.
A mother who remarries loses, it would seem, her right to the succession to the estate of the son by her first husband under Sec. 2 of Act XV. of 1856, as she certainly would under the strict Hindu law by forming a connexion inconsist- ent with her retaining a place in the family of her first hus- band or even in the caste. But in the case of Akorah Sooth V. Boreeanee (a) it was ruled that a widow remarrying forfeits only the right she has then actually inherited, not her right of inheritance to her son then living.
Stepmothers are not included in the term ''mother.'* Regarding the rights of a stepmother, see Book I., Chap. II., Sec. 14, 1. A. 2, Remark to Q. 1.
The Vyav. May. Chap. IV., Sec. 8, para. 15, places the father first, and next the mother, and the High Court pronounced in favour of this order of succession for Gujarat in Khodabhai Mahiji v. Bahdhur Dalu et al. (b)
The estate taken by a mother succeeding to her son is said to be like that taken by a widow from her husband, (c)
§ 3 ZJ. (8) The Father. — On failure of the mother^ the father inherits the estate of a separate householder^ of a payhig student, and tits separate estate of a united coparcener. In Oujardt the father has precedence of the mother as heir to their sons.
See Book I., Chap. II., Sec. 10; and for authorities see Book I., Chap. II., Sec. 9, Q. 1; and Chap. 1, Sec. 2, Q. 4.
(a) 10 C. W. E. 35, U. Id. 82.
(b) Bom. H. C. P. J. for 1882, p. 122.
(c) Narsdppd Lingdppd v. SakJidrdm, 6 B. H. C. R. 215 ; Ttdjdrdm Mordrji v. Maihurddds et al., I. L. R. 5 Bom. 662. See also the chapter on Stridhana, and the references given above, p. 94i.
J
mTRODUCriON.] DIVIDED FAMILY. BROTHERS. Ill
§3 B. (9) Brother op the Whole Blood. — On failure of the father^ full brothers succeed to the estate of a separate Grihasta, Sfc.
See Book I., Chap. II., Sec. 11., and for Authorities see Book I., Chap. I., Sec. 2, Q. 4; and Chap. II., Sec. 11, Q. 4; Vyav. May. Chap. IV., Sec. 8, p. 16.
In case a brother dies leaving more than one brother, and one of these also dies after him but before the partition of the estate of the first deceased brother has taken place, and if this second brother leaves a son, then this son will take the share of the estate which should have fallen to his father. See above § 3 J5. (6) Mit. Chap. II., Sec. 4, p. 9; Vlramit., Transl. p. 195. (a)
Representation is not recognized in the case of a pre- deceased brother who has left sons. These nephews are excluded by their surviving uncles. It is only on the complete failure of brothers of the deceased that brothers^ sons succeed to him. Mit. Ch. II., Sec. 4., paras. 1,5, 7. Vlramit. Tr. p. 195. See below Bk. I., Ch. IL, Sec. 11, Q. 6, and Bk. I. Chap, n.. Sec. 13, Q. 4, 5. The doctrine may indeed be confined to those who by birth become, actually or potentially, sharers with their fathers forthwith, or immediately on the fitters becoming owners of property, and those who by ana- logy take through a mother from the maternal grandfather, (b) when their mother has died between the decease of their grandfather and the actual partition of his property.
(a) Some surprise may be felt that this rule should have seemed necessary. But accordiDg to Hindi!! notions as possession is gene- rally necessary to tho completion of ownership, so separate possession is essential in theory to the completion of a separate ownership of a share derived from a prior joint ownership of the aggregate. The father, however, having once become a coparcener, his son has acquired a concurrent interest which is but expanded by the father's death.
(b) See Vyav. May. Ch. IV. Sec. 2, para. 1; Sec. X. para. 26; above § 3 B. (6)^ Sarasvati VilAsa § 7, 21, 335.
112 LAW OF INHERITANCE. [boOK L
§3 5. (10) Half Brote^es.— On failure of brothers of the full-bloodj half-brothers inherit the estate of a sejparale householder^ 8fc.
See Book I., Chap. II., Sec. 12 ; and for Authority, see Book I., Chap. II., Sec. 1 1, Q. 4.
The Vyav. May. includes the half-brother among the Got- raja Sapindas, and places him after the son of the brother of the full blood. This may be taken as the prevailing law in the town of Bombay according to the preference accorded to the Mayftkha by the High Court for cases arising within its Original Jurisdiction. The full sister, too, takes precedence of the half-brother according to the same authority, on the construction of the word " brethren," which makes it extend to females, (a) But beyond these limits the Mitaksharil is generally preferred and regulates the succession as here indi- cated. (6) In this construction the Vlramitrodaya, Transl. p. 194 and the D&ya Bhaga agree, see Day a Bhaga, Chap. XL Sec. 5, pi. 10-12. So also the Smriti Chandrika, Transl. p. 183. § 3 J5. (11) Sons of Brothers op the Full Blood.— On failure of half-brothers, sons of brothers of the full blood inherit the estate of a separate householder, 8fc.
See Book I., Chap. II , Sec. 13; and for Authorities, see
Book I., Chap. I., Sec. 2, Q. 5; and Chap. II., Sec. 11, Q. 4.
§ 3 B. (12) Sons op Half Brothers. — On failure of sons of
full brothers, sons of half-brothers inherit the estate of a
separate liouseholder, 8fc.
Authorities. See Book I., Chap. II., Sec 11, Q. 4.
Regarding the case in which brothers' sons inherit together with brothers, see above. Remark to § 3 B. (9). The
(a) Sakharcm, Saddshiv v. Sitdbdif I. L. R. 3 Bom. 353, referring to Vindyak Ancmdrao v. Lukahmihai, 9 M. I. A. 616. {h) See KrUhmji v. Pdnduran^, 12 Bom. H. C. R. 65.
INTBODUCTION.] DIVIDBD FAMILY. GRANDMOTHER. 113
deceased brother is represented by bis sod^ bis rigbt baying become vested in possession, to use tbe English phrasOj before his death.
The Yyay. May. places half-brothers' sons amongst the Sapindas. J 3 J5 (13) The Paternal GaANDMOTHERi — On failure of
sons of half 'brothers, the paternal grandmother inherits
the estate of a separate hov^eholder^ ^c*
AUTHOBITIBS.
See Book I., Chap. H., Sec. 13,«Q. 7; Mit. Chap. IL, Sec. 5, p. 2.
The place assigned to the paternaf grandmother is a special one^ dae partly to her entrance into the family and moral unity with the grandfather, but partly also to the particular mention of her as an heir by Mann (a) next after the mother. (i>) The Mitakshara does not follow Mann in this, bat nses the text to support the place assigned to her as the first of the jn&tis or gentiles. The postponement of her to the &ther^ brother and nephew is grounded on the principle that these are specified in T&jnavalkya's text, while ahe is not. The feet is that the two Smritis as they stand are inconsistent. The passage in Manu was probably ^red originally with some context (such as in case there should be none but female claimants ) , which has now been lost, and the isolated fragment preserved has thus become misleading, (c) but the mention of the grandmother shows a capacity on her part to inherit which Vijnanesvara makes specific in his comment on Yftjnavalkya's text, which does not itself mention her as an heir, (d)
(a) Ch. IX. 217. (6) Mit. Ch. n., Sec. I, p. 7.
(c) This has occurred in the Roman law as Savigny shows, System, Vol. HI. App. VIII. § VIII., and Text § 116.
(d) See LaUubhdi v. Mdnkuvarbdi, I. L. R. 2 Bom. at p. 438 ss. ^iin&nesvara in commenting on Y&jnavalkya was constrained to give his own Rishi precedence and to construe other smiritis in accord- toce with it. See above pp. 11 and U notes.
16H-K
114 LAW OF INHEBITANCfE. [oook I.
§3 5. (14) OoTRAJA Sapinpas. — On failure of the paternal grandmother, the Ootraja Sapindas, i, e. all the males of the deceased^s family (gotra) related to him within m degrees dovmtoards and upwards, together with their respective wivesy are entitled to inherit the estate of a separate householder. It would seem that the Qotraja SapiiKJtas inherit according to the nearness of their line to the deceased^ i. e. that the f mirth, fifth, and sixth descendants in the deceased's own lifie {santdna) should he placed first, next the father's line, viz. the deceased's brother's second, third, fourth, fifth, and sixth descendante, next the grandfather and his descendants to the sixth degree, and so%n. In Gujardt the sister is placed at the head of the Ootraja Sapindas.
Authorities.
See Book L, Chap. I., Sec. 2, Q. 4; Chap. II., Sec. 14, I. A.3, Q. 1 ; Chap. II., Sec. 14, I. A. 1, Q. 1 ; Chap. II, Sec. 14, I. B. b. 1, Q. 1 ; Vasishtha IV. 17.
The collateral saccesBion to property on failure of the heira individually specified has given rise to many controversies amongst the Hindft lawyers. The rule that a jn&ti succeeds, or that a gotraja sapinda succeeds, gives no information as to who and who only are to be regarded as jnatis (paternal kinsmen) or as gotrajas (of the family or born in the family), and the kind of connexion intended by these terms has been differently understood by diff'erent commentators. The nearer relatives of the propositus, as his son, his father and his brother, are obviously jnitis and gotraja sapindas, but being expressly named in the Smriti they have not to rely on their inclusion under any more general term for their right of succession. When we come to such a relative as the sister, the fact of her passing into another femily gives her in one sense a new '' gotrajatva,^' or family connexion^ and in the same sense deprives her of connexion with her. family of birth. Vijn&nesvara accordingly passes her
INTBODUCTIOnJ "DIVmED FAMILY. GOTRAJAS. 115
by in favour of tbe male gotraja sapindas. Nllakantlia^ on the other hand^ influenced no doubt by the growing strength of natural affections, as opposed to a strictly logical deve- lopment of the religious agnatic system, (a) gives her a place next to the grandmother as having a gotrajatva (= family connexion) throngb birth, even though she has since passed out of the gotra. The extent to which each collateral line is to be followed before the right passes to the one next entitled, the interpolation of the "bandhus" or cognates between the nearer and remoter lines of agnates; (fc) the possibility and the extent of the transmission of hereditary right through daughters of col- laterals ; the rights of such daughters ; and the rights of widows of collaterals to succeed in place of their husbands in preference to a remoter line, possibly even in preference to lower descendants in the same line ; all these are questions to which various wiiters have given inconsistent though almost equally ingenious answers. The Vyavahara Mayftkha's scheme differs essentially from that propounded in the Mit&kshara and followed by the Viramitrodya, (c) which however has itself been understood in different ways by subsequent authors and by the SS^stris. The nicer points of the subject have been treated in the principal authorities, act only on discordant principles, but in a fragmentary way, which leaves room for much doubt. Under these circum- stances it is hardly to be expected that any system, however
(o) A similar exception in favour of sisters occurred under the Boman law while women generally were thoagbt unfit for inheritance.
(h) In Bengal the Bandhus come next after the nearer Sapindas, i.e., before descendants from ascendants beyond the great-grandfather. Boopcfttim Mohapater v. Anundlal Elian, 2 0. S. D. A. B. 36; Deyanaih Boy ei al. v. Muthoor Nath, 6 C. S. D. A. R. 27. In Madras, according to the Smriti Chandrik& Chap. XI., the male gotrajas only come in next after brothers' sons, and after them the Bun&nodakas limited to two descendants from each ascendant above thepropofiitns.
(c) See also the Sarasvati Yil&sa^ § 581, 586 ss.
il6 LAW OF INHERITANCE. [bOOK I.
carefully deduced from tlie authorities, will gain universal assent. We will, however, state the principles which seem the most in harmony with those involved in the authoritati?e text, so far as these go, and which have been generally followed by the S^tris of the Bombay Presidency. These have in some instances received judicial confirmation since the first edition of this work was published, and the decisions of the High Courts and of' the Judicial Committee have thus established fixed points by reference to which the correctness of the views set forth on other cognate questions can readily be tested.
In dealing with the materials now embraced under Book I., Chap. II., Sec. 14, it became necessary to determine on what principles the several questions and answers should be arranged, and this opened up the whole question of the sapinda and gotraja relationship as conceived by Vijn&nes- vara and by Nllakantha. We propose to state their views in connexion with the distribution of the answers referrible to the one and to the other authority.
The term ''Gotraja'* designates, according to the Mi- takshar&, Mayiikha, and Manu IX. 217, — 1, the paternal grandmother ; 2, the Gotraja-Sapindas ; and 3, the Gotraja- Sam&nodakas. As there were no cases referring to the paternal grandmother, (a) the Gotraja-Sapindas have been given the first place. Amongst these have been placed, first (A), those whose right to inherit is expressly mentioned in the Mitaksharll, the Vlramitrodaya, and the Mayflkha- The Mitakshara (with which the Viramitrodaya agrees per- fectly) names the following Gotrajas as entitled to inherit, after the paternal grandmother, the property of a separated male. (Colebrooke, Mit. p. 350 ; Stokes, H. L. B. 446.)
1. The paternal grandfather; 2, the father's brothers; 8, the fother^s brothers' sons; 4, the paternal great-grand- mother ; 5, the paternal great-grandfather ; 6, the paternal
(a) See Bk. I. Ch. II. Section 13, Q. 7.
INTRODUCTION.] DIVIDED FAMILY. GOTRAJAS. llf
grandfatlier^s brothers; 7, the paternal grandfather's bro- ther's sons ; and this order of heirs is to be repeated up to the seventh ancestor.
The Mayftkha lays down the following order : —
1. The uterine sister ; 2, the paternal grandfather and the half-brothers, as joint heirs ; 3, the paternal great-grand- father, the father's brother, and the sons of half-brothers, as joint heirs ; and so on, all the Gotrajas up to the seventh ancestor, according to the nearness of their relationship. But as Mr. Colebrooke remarks (Mit. p. 350, Note), it is by no means clear how the remoter heirs are to follow one another, (a)
Though in general the Mit^ksharSL possesses the greatest authority in this Presidency, and it would therefore seem necessary to follow its order, it was impossible altogether to neglect the MayAkha, since in Gujarat and in the island of Bombay the Mayflkh^ partially prevails over the Mitak- Bhara, (b) and the sister is there allowed to inherit immedi- ately after the paternal grandmother, (c) Consequently the first place has been generally assigned to her by the Sastris. They have in several cases even from the Deccan and Konkan decided in her favour, and in Book I., Chap. II.,
(a) Nilakantha probably aimed at governing succession subject to the express provisions of the 6&8tras in favour of specified relatives by a principle of proximity of degree, counting as in the Roman law eveiy step up and down, and making all at an equal distance equal aharers in the estate of the propositus. See Lalubhdi v. Mankoovar^ hai, I. L. E. 2 Bom. 388. The other authorities follow the principle of the Tentonio and the English laws in going up to the nearest point of the ascendant stock that will afford an heir, and then following the line of descendants springing from it and choosing the nearest in that line.
(h) See LaUoobkoy v. Cds8ib€ii,L. R. 7 I. A. 212; and, above, hitroduction.
(c) Vindyekrdo Anandrdo v. Lakshmiidi, &c., 1 Bom. H. C. R. 117, S.C.9M.I.A. 517.
118 LAW OF INHEEITANOB. [BOOK I.
Section 14, these have been subjoined to those from 6ujar4t, though, according to the Mit4kshar&, they would more pro* perly be included in Section 15.
The cases which refer to the right of the Gotrajas, not mentioned in the Mitlkksharfi and Mayftkha, form the second division (B), and have been classed under two headings; a, males ; 6, females ; because the rights of the latter depend on principles less generally accepted than those recognized as applicable to the former.
The questions whether the Gotraja-Sapindas who are not expressly mentioned in the Law books, have any right to inherit, and if they have, in what order they succeed, are not easy to decide. As regards the males, the Sastris have confid- ently asserted their rights {see Bk. I., Ch. II., Sec. 14, 1., B. a, 1 and 2) and quoted as authority for their opinions the passage of the Mitakshar& ( Vyav. /. 55, p. 2, 1. 1., see Chap. I., Sec. 2, Q.4, and Stokes, H. L. B. 427), which names the Gofra/as as heirs. It appears therefore that they considered the series of Gotraja-Sapinda heirs, given by Vijnanesvara (Colebrooke, Mit. L c) as not exhaustive, nor intended to exclude others than those named, but only as an exemplification of the general doctrine. The same opinion has also been advo- cated by the Sastris in other parts of India, where the Mit4kshara is the ruling authority, (a) as well as by Mr. Vinayak Sdstri, the late Law OflScerof the High Court of Bombay. Moreover, this view was adopted by Mr. Harrington in the case of Dutt Zabho Lannauth Tha and others v. Bajundcr Narain Rae and Coower Mohinder Narain Bae, (b) and the Privy Council, on appeal, confirmed his judgment.
(a) See R. Sreekaunth Deybee v. Sahib Perlhad Sein, Morley, Digest, New Series, p. 187, No. 14 ; RutcJieputty Duit el al. v. Rajundar Narain Rae et al., 2 M. I. A. 132, 168.
(b) Moore, Indian Appeals, I c. This view is confirmed in Bhydh Rama Sitigh v. Bhyah Ugur Singh, 13 M. I. A. 373. So in Thakur Jibnath Singh v. The Court of Wards, 6 Beng. L. R. 442. and Parasara Bhatiar v. Rangardya Bhaltar, I. L. R. 2 Mad. 202.
INTBODUanON.] DIVIDED FAMILY. GOTBAJAS. 119
Mr. Harrington, after having proved that the word putra, 'son/ is used in the Mitakshar& and Sabodhini as a general tenn for descendant or male issue, says in his review of the opinions of the S&stris (p. 157) : —
''The same constmction mnst, I think, be pnt on the words * sons' and * issue' (putra and sunavah) in the fourth and fifth paragraphs of the fifth Section and second Chapter of the Mitakshara, (a) and this interpretation is indeed indi- cated by other expressions of the same paragraphs, viz., on failure of the father's and on failure of the paternal grand- lather's line (Santana). To adopt the construction proposed by the appellant would be to cut off all the descendants below the grandson of the father, grandfather, and every other ancestor, and would render nugatory the provisions in tbe Mit&kshar&, (b) as well as other books of law, which ex- pressly state the succession of kindred belonging to the same family, as far as the limits of knowledge as to birth and aame extend.''(c)
But the opinion that Vijn&nesvara's series of heirs is not intended to be exhaustive, may be strengthened by some further arguments. Firstly, if it were intended to be ex- kaostive, not only would the provision that the Gotraja- Sam^nodakas may inherit as far as name and knowledge of birth extend, as Mr. Harrington observes be rendered nuga- tory, but virtually all the Samanodakas and one line of the
(a) Colebrooke, Mit. p. 350 ; Stokes, H. L. B. 446-7 :—
'*4. Here on failure of the father's descendants, the heirs are nccessiyely the paternal grandmother, the paternal grandfather, the iiocles, and their sons.
" 5. On failure of the paternal grandfather's line, the paternal great-grandmother, the great-grandfather, bis sons and their issue inberit. In this manner must be understood the succession of kin- dred belonging to the same general family, and connected by funeral oblations."
(6) Colebrooke, Mik. p. 351 ; Stokes, H. L. B. 447.
(c) Compare also Shoodyan v. Mohun Pandey et aU Reports of S. 1^- A., N. W. P. 1863, II. p. 134 ; and Duroo Singh v. Rai Singh et ^' 1864, p. 523.
120 LAW OP INHBRITANOB. [bOOK I.
Sapindas wonld be exclnded from the succession. For it is hardly possible that the seventh ancestor and his song and grandsons could be alive at the time of the death of the seventh descendant ; and this improbability increases with every grade among the Sam&nodakas, who extend to the fourteenth ancestor and are to inherit in the same order as the Gotraja-Sapindas, t. e.^ 1, female ancestor ; 2^ male ancestor; 3^ their sons; 4^ and grandsons. But, secondly, the definition of the word Sapinda, which VijMnesvara gives in the first chapter of the Mitaksharft, clearly shows that all the unmentioned descendants of the lines of the various an- cestorSy down to the seventh degree, as well as the descend- ants of the deceased person down to the seventh, inherit. For Viju^nesvara says (Achirakanda /. 6, p. 1, 1. 15), (a) when he explains the verse I. 52, of Y^jnavalkya, in which it is declared that a man shall marry a girl who is not his Sapinda : —
*' He should marry a girl, who is non-Sapinda (with himself). She is called his Sapinda who has (particles of) the body (of some ancestor, &c.) in common (with him). Non-Sapinda means not his Sapinda. Such a one (he should marry). Sapinda-relationship arises between two people through their being connected by particles of one body. Thus the son stands in Sapinda-relationship to his father because of particles of his father's body having entered (his). In like (manner stands the grandson in Sapinda-relationship) to his paternal grandfather and the rest, because through his father particles of his (grandfather's) body have entered into (his own). Just so is (the son a Sapinda-relation) of his mother, because particles of his mother's body have en- tered (into his). Likewise (the grandson stands in Sapinda- relationship) to his maternal grandfather and the rest
(a) The Samskftramayukha adopts this theory. The Dharmasindha states merely the two theories, leaf 63 (Bombay Edition), Part I. (p. 353, Mar&thi, Samvat 1931). It is glanced at in Vyav. May. Ch. IV. Sec. 5, p. 22, and supported in the Datt. Mim. Sec. 6, para. 9, by a reference to Manu.
INTRODTJOTION.] DIVIDED FAMILY. GOTBAJAS. 121
through his mother. So also (is the nephew) a Sapinda- relatioQ of his maternal aunts and uncles^ and the rest^ because particles of the same body (the paternal grandfather) have entered into (his and theirs) ; likewise ( does he stand in Sapinda-relationship) with paternal uncles and aunts, and the rest. So also the wife and the husband (are Sapinda- relations to each other), because they together beget one body (the son). In like manner brothers' wives also are (Sapinda-relations to each other), because they produce one body (the son), with those (severally) who have sprung from one body (i. e. because they bring forth sons by their union with the offspring of one person, and thus their husbands* father is the common bond which connects them ) . Therefore one ought to know that wherever thq word Sapinda is used, thereexists (between the persons to whom it is applied) aoon- nection witb one body, either immediately orby descent.'' (a)
After refuting some objections which might be raised against this definition, and after discussing the latter part of Tajn. T. 52, and the first half of Tajn. I. 53, Vijfianesvara J^ia recurs to the question, who the Gotraja-Sapindas are. Mitakshara,/. 7, p. 1, 1. 7 :—
*'In the explanation of the word <asapind&m' (non- Sapinda, verse 52), it has been said that Sapinda-relation arises from the circumstance that particles of one body have entered into (the bodies of the persons thus related) either immediately or through (transmission by) descent. But inasmuch as (this definition) would be too wide, since such a relationship exists in the eternal circle of births, in some manner or other, between all men, therefore the author ( Yftj- navalkya) says : —
Vs. 53 : ''A fter the fifth ancestor on the mother's and after the seventh on the father's side." — On the mother's side in the mother's line, after the fifth, on the father's side in the father's line, after the seventh (ancestor), the Sapinda-rela-
. (<*) In Am/fita Kumari Debt v. LakMnarayaUt 2 Bang. L. It>. 33, ^ a passage to the same efiect from Par&sara Mftdhava, at page 34. 16 H+.
122 LAW OF INHERITANCE. [BOOK I.
tionship ceases; these latter two words must be understood; and therefore the word Sapinda, which on account of its (etymological) import, ' (connected by having in common) particles (of one body)' would apply to all men, is restricted in its signification, just as the word pankaja (which etymolo- gically means " growing in the mud," and therefore would apply to all plants growing in the mud, designates the lotus only) and the like; and thus the six ascendants, beginning with the father, and the six descendants, beginning with the son, and one's self (counted) as the seventh (in each case), are Sapinda-relations. In case of a division of the IIdg also, one ought to count up to the seventh (ancestor) , in- cluding him with whom the division of the line begins, (e, j. two collaterals, A and B are Sapindas, if the common ancestor is not further removed from either of them than six degrees), and thus must the counting of the (Sapinda- relationship) be made in every case." See DattakamJmamsa, Sec. VI. pi. 27, 28 and notes ; Stokes H. L. B, 605-6, and Bhyah Bam Sing v. Bhyah Ugur Sing, (a)
Prom this passage the following conclusions may be drawn : (6)
1. Vijn4nesvara supposes the Sapinda-relationship to be baaed, not on the presentation of funeral oblations, but on descent from a common ancestor, and in the case of females also on marriage with descendants from a common ancestor.
2. That all blood relations within six degrees, together
(a) 13 M. I. A. p. 380. ]
{b) See Amrita Kutnarl Debt v. Lakhhiarayan, 2 Beng. L. R- 33 P. B. R. See also Coulanges La Cit^ Antique, 64. Mitramisra says the capacity to present oblations is not the sole source of a right to inherit, otherwise younger sons would be excluded by the eldest. It gives only a preference, he says, to those who have the right amongst the Gtotrajas. Vtram,, Tr. p. 91. At p. 196 ff. he adopts Vijn&neiSvara's order of succession amongst the Gotrajaa though he admits a difficulty as arising from the Vedic text referred to below. As to impurity arising from the death of .Sapindas, and the extent of the Sapinda connexion^ see Baudh&yana, Pr. 1, Adby. 5, Kftnd. 11, Satra 1-27.
lOTBODUCTION.] DIVIDED FAMILY. QOTBAJAS.
123
witt the wives of tlie males amongst them, are Sapinda-rek^ tions to each other, (a)
The bearing of these points on the definition of the " Gotraja-Sapindas/' as well as on the interpretation of the passages referring to their rights of inheritance, is obvious. It appears that the series of heirs given there is not exhaustive, and that the term '* Gotraja-Sapindas^' designates, if applied to males only, all those who are blood relations within the sixth degree, and who belong to one family, i, e. bear one name. If thisinferenceisaccepted, allthese persons are entitled to in- herit according to the passage of the Mitakshard given above . [h)
(a) See Lakshndbdi v. Jayaram Hari et aJ., 6 Bom. H. C. R. 162 A. C. J. ; and Lallubhdi v. Mdnkuverbdi, I. L. R. 2 Bom. 388.
(6) The following table will serve to show the extent of the Gotraja-Sapinda relationship, as far as the males are concerned : —
|
- |
-6 |
^"^ |
-2 |
||||
|
- |
"^"^---^ |
^ |
-2 |
-3 |
|||
|
- |
-4. |
^"^ |
-2 |
-3 |
4 |
||
|
- |
-3 |
^^ |
-2 |
-3 |
-4 |
5 |
|
|
- |
-2 |
^-- |
-2 |
-3 |
-4 |
-5 |
-G |
|
( |
1 0 |
-2 |
-3 |
4 |
-5 |
-6 |
-7 |
|
2- |
- |
3 |
-4 |
-5 |
-G |
-7 |
|
|
3- |
- |
-4 |
-5 |
-G |
-7 |
||
|
4- |
- |
-5 |
-6 |
-7 |
|||
|
5- |
- |
-6 |
-7 |
, |
|||
|
G- |
- |
-7 |
|||||
|
7- |
_ |
124 LAW OF INHERITANCE. [bOOK I.
The only remaining queation is, in which order the Gotraja- Sapindas^ who are not mentioned in the Mit&kshar^^ are to be placed. The principle suggested by Mr. Harrington, namely^ to continue each line of heirs down to the seventh person^ and thus to allow, first the brother's descendants to inherit, next the paternal uncle's descendants, and so on, can easily be carried out in the case of the paternal uncle's line and those descended from the sons of remoter ancestors. But it is impossible to allow the brother's grandsons, great- grandsons, and remoter descendants to inherit before the paternal grandmother, since the right of the latter to succeed immediately after the brother's sons is clearly settled, not only in the Mitdkshar4, but in all the law books of the Benares Schools and in theMayftkha. (a) Besides, under this arrange- ment, the remoter descendants of the deceased himself, as great-great-grandsons, who possibly might be in existence at the great-great-grandfather's death, would be lost sight of altogether. In order to provide for the rights of these per- cons, who undeniably have a right to inherit, they might either be considered as co-heirs with the descendants of the paternal uncle, who are equally distant from the deceased, according to the principle apparently approved by the Vyavahara Mayftkha, or placed after the paternal grand- mother, and before the paternal grandfather, viz., 1, pater- nal grandmother; 2, deceased's great-great-grandsons, or
(a) See Colebrooke, Mit. p. 349; Stokes, H. L. Books, p. 446; Vyiv. May. p. 106; Stokes. H. L. B. 88. So also Visve^varain the Subodhini adds to the words " on failure of the father's line," the following comment, ** the line of the father (must be understood to) end with the brothers and their sons." In Madras the collateral succession of Gotrajas stops with the grandson, in Bengal with the great-grandson of the ascendant. See Nort. L. C. 681. Bat the doctrine above set forth is recognized as that of the MitAkshard, T. Jihnaih Sing v. The Court of Wards, 5 B. L. R. 443 ; Bhyah Ramsing V. Bhyah TJgur Singh et al, 13 M. I. A. 373. The Smriti ChandrikS, Ch. XI. Sec. 5, para. 9 ss, limits the succession to the (collateral) descendants, excluding the ascendants, except as themselves descend- ants, from those still higher in the line.
INTBODUOTION.] DIVIDED FAMILY. GOTRAJAS. 125
remoter descendants to No. 7, if living ; 3, brother's grand- sons, brother's great-grandsons^ brother's great-great-grand- sons and their sons ; 4, paternal grandfather. The second arrangement seems to be the more satisfactory, as it follows the principle indicated by the Mitakshar&, that the succes- sion is to go to the direct and the several collateral lines, after providing for the grandmother conformably to Mann's text in her favour, in the order in which they branch from the common stem. That the ascending line should thus be resorted to in the person of the grandmother, then immedi- ately abandoned for remote lineal descendants of the propo- situs and his brothers, and afterwards recurred to in the person of the grandfather, may seem a rather arbitrary arrangement. It arises from Vijnanesvara's endeavour, consistently with the recognized principle of the Mimansa philosophy of giving some effect, if possible, to every sacred text, to work the rule of Manu into the scheme of Yijnavalkya, if not according to its obvious sense, yet in some sense though an entirely forced one. (a)
The distinction between the whole-blood and the half-blood observed in the case of brothers and their sons does not extend to the descendants of the grandfather and remoter ascendants. The fifth in descent from a common ancestor bat of the half-blood succeed in preference to the sixth in descent though of the whole-blood, (b)
As regards the female Gotraja-Sapindas, who occupy the next division (I. B. b.), their right to inherit is still less generally recognized than that of the mates.
a. According to the doctrines of the Bengal and the Madras school of lawyers, as represented by Jimiitav^-
(a) See Index. Interpretation ; Muir's Sans. T. Ill, ; 98 Weber's Hist. In. Lit. 239 ; M. Muller's Sans. Lit. 78; BurnelFs Varadr&ja, Pref. p. liv. ; Manu II. 10, 14 ; lY. 30 ; and XII. 108. The scriptures were to be literally accepted and yet to be construed by learned Brabmans according to the philosophy in vogue at the time of the compilation of the last named work.
(I) Samai v. Am-d, I. L. R. 6 Bom. 394.
126 LAW OF INHERITANCE. [BOOK I.
hana (a) and the Smriii Ghandrika, females are in general incapable of inheriting^ and this disability can be removed only by special texts of the Dharmasistras. The authority for this view is Baudhayana, the reputed founder of one of the schools of the Black Tajurveda, who, in his turn, quotes a passage of his Veda to support his opinion. He says, Prasna 11. k. 2 : —
''A woman is not entitled to inherit; for thus says the Veda, females and persons deficient in an organ of sense (or a member) are deemed incompetent to inherit/'
The meaning assigned by Baudhayana to the Veda passage is by no means the only one in which it can be taken. Vidy&r£mya, in his commentary on the Taittirlyaveda, ex- plained it, as Mitramisra (Viram. /. 209, p. 1, 1. 10, p. 671, Calc. Edn. of 1875) says, in a difierent way, so that it would have no reference to inheritance. (&)
(a) Colebrooke, D&ya Bh&ga, p. 216 ; Stokes, H. L. Books, pp. 345, 346.
{b) It may be translated thus : — '* Women are considered disqual- ified to drink the Soma juice, and receive no portion (of it at the sacrifice)." See the M&dhavya, p. 33, Bumell's Translation; Viram. Tr. pp. 174, 175. JagannAtha says (Coleb. Dig. B. V.T. 397,Comm.) that ** ddya" = oblation and " d&y&da" = a sharer of an oblation offered to him in common with others. He points out also that Knlluka's Commentary on Mann IX. 186, 187, shows that the latter text would be inoperative, if restricted to males, and with reference to the text of Baudh&yana, that " a wife must be considered a Sapinda, because she assisted her husband in the performance of religious duties.** Jagann&tha admits the paternal great-grandmother by analogy not- withstanding Baudh&yana's excluding text. Coleb. Dig. Bk. V. T. 434, Comm. " According to the received doctrine of the Bengal and Madras Schools, women are held to be incompetent to inherit, unless named and specified as heirs by special texts. This exclusion seems to be founded on a short text of Baudh&yana, whioh declares that • women are devoid of the senses, and incompetent to inherit.' The same doctrine prevails in Benares ; the author of the Viramitrodaya yields, though apparently with reluctance, to this text. (Chap. lU., part 7) The principle of the general incapacity of women for inherit- ance, founded on the text just referred to, has not been adopted in
INTRODUCTION.] DIVIDED FAMILY. GOTEAJAS. 127
Bat whatever may be the respective philological value of these different comments, BaudhsLyana's explanation has long ago become law in the East and South of India, and there accordingly those females only inherit who are specially men- tioned in the texts of the law books, (a)
6. The question is^ however, whether this doctrine prevails also in this Presidency, where the Mitakshar& and the Majrflkha are the ruling authorities. The following consi- derations seem to furnish an answer to it : —
Firstly, the text of Baudhftyana, or the principle that women are in general incapable of inheriting, is adopted neither in the Mit&kshara nor in the Mayi^kha.
Secondly, the Mitakshara mentions the great'grand- mother's right to inherit, and indicates that the wives of the other ancestors in the direct line, up to the seventh degree, likewise succeed to the estate of their descendants, though none of them is provided for by special texts, (b) They
Western India, where, for example, sisters are competent to inherit. That principle, therefore, does not stand in the way of the widow's claim in the present case.'* Privy Council in Lulloobhoy Bdppoohhoy v. Kmihdi, L. B. 7 I. A. at p. 231.
(a) The Vtramitrodaya, after showing that the objections raised to .Vijn4nesvara's doctrine by the Smriti Chandrikd (Chap. XI., Sec. 6) are tmsnstainable npon the grounds taken by Deyd^nda Bhatta, and charging Jimtltav^h&na with inconsistency in contending that Bjnavalkya's text is meant to exclude female Sapindas (as wives or danghters-in-law of ascendants and collaterals sprung from them), while he employs it to determine the right of the paternal grand- mother (D&ya Bh&ga, Chap. XI., S. 4. paras. 4-6, compared with S. 6, para. 10), finally itself pronounces Vidy&ranya's explanation of the Vedic text an insufficient basis for female inheritance as not affording room for a proper application, by way of disparagement ofwoman's capacity, of the word "ad&y&da," ** shareless." Seethe Viram. p. 67l, Calc. Edn. of 1875, Transl. p. l98, and as to JimAta.'s meaning, Coleb. Dig. Bk. V. T. 434, Comm.; Smriti Chandrik&, Chap. XI. S. 6. para. 15.
(6) See Lakshmibdi v. Jayram BaH et at, 6 Bom. H. C. R. 152 A. C. J. See also Coleb. Dig. Bk. V. T. 397, Comm. ad fin., and T. 434, 370 ; also Comm. on T. 434.
128 LAW OF INHEBITANCE. [bOOK I.
inherit therefore merely by virtue of their relationship as Gotraja-Sapindas. Hence it follows that the Mit&ksharft does not recognise the doctrine of the Bengal and Southern schools, and there is consequently no reason why, according to its doctrine, the female Gotraja-Sapindas, whom it does not mention, should be excluded from inheriting, if the males, who stand in the same position, are allowed to do so. Moreover, one of the commentators on the Mit&kshara) Balambhatta, expressly mentions the right of a pre-deceased son's widow, (a) whom he places immediately after the pater- nal grandmother, and says that the word Sapinda must be everywhere interpreted as including the males and females^ (b) Nllakantha likewise adopts in this respect the same view as the Mit&kshar^, as he makes the sister inherit
(a) A case at 2 Borr. 670 {Roopchu)id v. Phoolchuiid et al.) places a daughter-in-law before a divided brother, but this seems wrong. She is excluded by a daughter, 2 Macn. 43. In Bdi Qungd v. BfU Shco- koovur, Sel. Cases at p. 85, the Sdstri, after pronouncing against the validity of the adoption of a daughter's son, prefers the daughter-in- law to the. daughter as heir, with a restriction on the power of alienation during the daughter's life. This opinion was acted on by the Zilla Judge and the Saddar Court. It is questioned in LvUoo- hlioy V. Kassibaly L. R. 7 I. A. at p. 220.
(6) Vi^vesvara, in his discussion on the rights of the paternal grand- mother, says that there is no objection to understand the word * Gotrajas' in the sense of 'male and female Gotrajas.' The Vaijayanti also, a Commentary on Vishnu, referred to by Colebrooke, 2 Str. H. L. 234, recognizes a right of representation in the son's widow. In Ranij PiulviavaU v. Baboo Doolar Sing, 4 M. I. A. 269, grand- sons of a common ancestor were held, under the Mithila law, entitled to succeed before the widow of deceased's brother, his nieces, or their sons, but this would not be so in Bombay where the widow being the last representative of a line takes before a remoter line is resorted to. iSee below and comp. Tupper's Panj. Cust. Law, vol. II. p. 148, where the widow of a collateral ending a branch or sub-branch takes the share that would have fallen to her husband had he been alive. The widow of a pre-deceased grandson takes before the daughter of a predeceased son, Musst, Bnjimalee v. Musst. Fran PiarcG et al, 7 C. S. D. A. R. 59.
INTRODUCTION.] DIVIDED FAMILY. GOTBAJAS. 129
9S the first and nearest amongst the Gotraja-Sapindas un- aided by special texts, (a)
c. But thongh both the principal authorities thus repu- diate the doctrine of Baudhslyana^ and allow females to inherit as Gotraja^Sapindas, they difiTer as to the question what females fall under this designation.
The Mit4ksharft and its followers seem to interpret the term "GotrajV (=;"of'' or ''bom in the family'^ as ''be- longing to the family.'* For we read^ MitAkshar^ Vyav. /. 58, p.2,1. 13:—
" The kinsmen sprung from the same family as the de- ceased (Gotraja-Sapindas), namely, the grandfather and the rest inherit the estate. For the Bhinnagotra-Sapindas are included by the term (Bandhus).''(6)
The word sam&nagotra, ' belonging to the same family,' is substituted for '' gotraja.*' See infra, quotation in Bk. I. CLILSec. 14, LA. 3, Q. 1.
The substitution of sam&nagotra for gotraja, as well as the employment of bhinnagotra to designate the opposite of the term, both show that Vijn^nesvara took gotraja in the sense of "belonging to the same family.'' If the term has this meaning, it would follow that no married daughters of ascendants, descendants, or collaterals can inherit under the text which prescribes the succession of the Gotrajas. For the daughters by their marriage pass into another family, or, as the Hindft lawyers say in their expressive language, ** are born again in the family of their husbands.*' But it seems improbable that even unmarried daughters of Gotraja-
(a) Vyav. May. Chap. IV. Sec. 8, p. 20; Borradaile, p. 106; Stokes, H. L. B. 89. In a Madras case the Privy Council say, " His sisters,
if they had a remote right to succeed as Bandhus could only so
succeed after the Sapindas had been exhausted." See V.
VeTikata Krishna Rao v. Venkatrama Lakshmi et al.. In. L. R. 1 Mad. 185; S.C. L. R. 4 I. A. at p. 8.
{b) Stokes, H. L. B. 446 j and Mit. ibid. 1, 15 (Stokes, H. L. B. 447). 17 fl +.
130 LAW OP INflEEITANCB. [boOK I,
Sapindas can inherit under the text mentioned, (a) For, though they belong to their father's gotra up to the time of marriage, they must leaye it, under the Ilindu law, before the ago of puberty; and consequently by their succeeding to the estate of Sapindas belonging to their fathers' familieSf the object of the law, in placing Sago tra- Sapindas before the Bhinnagotra* Sapindas, namely, the protection of the family property, would be defeated, since such property, through them, would pass into their husbands' families. The quitting of the paternal family by a girl is looked on as so inevitable that it is made a ground for exempting her from sharing her father's loss of caste with her brothers, because she goes to another family, (h) It seems therefore more in harmony with the principles on which the doctrines of the Mitakshari are based, to exclude even unmarried daughters of Gotrajas. (c) The only females, who can be understood
(a) Compare Manu II. 67, 68. Compare also Coulanges La Cit^ Antique, 51. Colebrooke, Dig. Bk. V. T. 183, speaks of a second birth by investiture and other ceremonies.
(b) Vtramit., Transl. p. 254.
(e) B&lambhatta admits the rights of inheritance of sisters, sisters' daughters, and daughter's daughters. But he does not consider them to be included by the term Gotra ja-Sapinda, btft by the words "bhratarah," •* brother," and "danhitra," •* daughter's son,'* and "tatputra,** his (her) sons, in Y&jSavalkya's text. Stokes, H. L. B. 443. Thakoorain Sdhiba et at. v. Mohun LaUet al., 11 M. I. A. 402. Sisters' inheritance does not follow the analogy of daughters*. If any analogy is to be recognized it is to the case of brothers, Bhdgirthibad, v. Bdyd, I. L. R. 5 Bom. 264. See however the Chapter on Strldhana. The Smriti Chandrik& excludes the daughter of the grandfather and of other ascendants from amongst Gotrajas on the ground that the form of the word, as derived from a combination of masculine terms, njust primarily be taken to indicate only males. Smriti Chandrikd, Ch. XI. S. 5, p. 2. On a similar construction sisters and thoir sons are excluded. See Smriti Cbandrika, p- 191- Devanda takes Gotrajah as meaning sprung from the family, p- 192, and hence as a reason for excluding the grandmother from succession after nephews, except under the special texts in her fiavour, p. 184 sa.
INTRODUCTION.] DIVIDED FAMILY. GOTRAJAS. 131
by the term Gotraja-Sapinda, are the wives and widows of the male Gotraja-Sapindas.
Nilakantha^ on the other hand^ takes 'gotraja' in the sense of *bom in the family/ and declares expressly that the'sister* inherits for this reason, (a) He does not men- tion the paternal great-grandmother, nor the widows of other Gotrajas in his list of heirs. But it is not clear whether he intends to exclude them, as, according to HindA ideas, a wife may be said to have been born again in the family of her husband, and he, as we have seen, admits the theory of asapinda connexion by particles. He would, consistently with the principle on which he assigns her place to the sister place the daughters of male Gotraja-Sapindas amongst the heirs bearing this name; but .this logical extension of his doctrine does not seem to have been generally accepted into the local law. Except for sisters it may be taken that the Mitakshar^ law prevails, (b)
The Sistris have in their answers, except in the Gujar&t cases relating to the sister, generally followed theMitakshara. They prefer the sister-in-law to the sister*s son ( Bhinnagotra- Sapinda) and to a male cousin and more distant male Sagotra-Sapindas, (c) the paternal uncle's widow to the
See Introductory Remarks to Bk. I. Chap. II. Section 15. At 2 Str. H. L. 243, Colebrooke says that commentators on the Mit^ksharft admit sisters, but that this view is controverted. Sutherland says that he inclines to the view that the sister is excluded. Remarking on Manu IK. 185, Collett, J., says, in a Madras case, that the plural hhrdiara is used, and that Prof. Wilson allows the plural masculine to include only males, though the dual bhralarau may include females.
(a) See Vyav. May., Borradaile, p. 106 ; Stokes, H. L. Books, p. 88.
(6) See Ladnbhai v. Mdnkuvarbdi above, p. 2 {g), Daya Bechur et al. ▼. Bdi Ladoo, S. A. No. 158 of 1870, decided on 27th March 1871, Bom. H. C. P. J. P. for 1871 ; also Sec. 15, B. IT. (2) below. In S. A. No. 158 of 1870, it was held that the paternal aunt could not, even in Gajar&t, be recognized as a Got raja- Sapinda, though she was entitled to a place as a Bandha.
tc)SeeSec."HI. B. 6.2.
132 LAW OF INHERITANCE. [boOK I. .
Bister, the maternal uncle, and the paternal grand-father's brother; and they allow a daughter-in-law {see Chap. IV. B., Sec. 6, II. /.) and a distant Gotraja-Sapinda^s widow to inherit. It is, however, sometimes impossible to bring the authorities which they quote into harmony with their answers.
From their answers as well as on account of the general principle that " the nearest Sapinda inherits,^^ (a) it would appear that the place of the widows of descendants and collaterals in the order of heirs is immediately after their husbands, {b) at least where the particular branch to which they belong is not lineally represented by a surviving male, (c)
It is on this analogy probably that the Sftstri has grounded his erroneous answer to Chap. II., Sec. 7, Q. 16.
Eegarding the Sam&nodakas, who occupy the next division, it may suffice to remark that according to the principles of interpretation adopted by Vijndnesvara in regard to the passage on Sapinda-relationship, they must be under- stood to comprise the male ascendants, descendants, and collaterals, beyond the sixth and within the thirteenth de- grees, together with their wives or widows, or all those persons who can furnish a satisfactory proof of their descent from a common ancestor. The order of their succession also must be regulated by the same principles as that of the Sapindas.
(a) Bqq Vyav. May. p. 106. See Lakshmibdi v. Jayrdm Eari et al. 6 Bom. H. C. R. 152 A. C. J.
{b) See Bk. I. Chap II. Sec. 8, Q. 2. The widow of a brother's BOn was preferred to another brother's great-grandson in succession to a widow as to property inherited by her from her husband. Dhoolubh Bhaee et al. v. Jeevee, 1 Borr. 75.
(c) See LaUubhdi v. Mdnkuvarbdi, above p. 2 (g).
INTRODUCTION.] DIVIDED FAMILY. SAMANODAKAS. 133
§ 3 B. (15) Gotraja-Samanodakas. — On failure of Ootraja- Sapiiidas, the Ooiraja-Smndnodalcas inherit the estate of a separate householder. Qotraja^Samanodahas are all the male descendants, ascendants, and collaterals, within 13 degrees, together with their respective wives; or according to some, all persons descended from a common male ancestor, and bearing tlie sams family name. The Sarndnodahas inherit, like the Sapindas, according to tlie nearness of their line to the deceased.
Authorities. See Book L, Chap. II., Sec. U, IL, Q. 1.
" Samdnodaka** means literally participating in the same oblation of water. Another form of the name for these kinsmen is " SodalcaJ'
§ 3 5. (16) Bandhus. — On failure ofSamdnodakasj the estate of a separate householder descends to the Bn.ndhvs or BhinnagotrorSapindas {Sapinda-relations, not belonging to the same family as the deceased). The latter term includes —
1. The father's sister's sons,
2. The mother^s sister's sons,
3. Ths maternal uncle's sons,
4. The father's paternal aunt's sons,
5. The father's maternal aunt's sons,
6. The father's maternal uncle's sons,
7. The mother's paternal aunfs sons,
8. The mother's inatemal aunt's sons,
9. Tlie mothe^-'s maternal uncle's sons,
10. All other Sapinda relations who are not Ootra- jas, according to the definition given above. These take in the order of their nearness to the deceased.
Authorities.
See Book L, Chap. H., Sec 15, A. 1, Q. 1, and B. 2, Q. 1 ; Vasistha IV, 18.
134 LAW OF INHEEITANCB. [booK !•
The rale as to the nine specified bandhus may be ex- pressed thus : — A man's own bandhus are the sons of his paternal aunt and of his maternal aunt and uncle. The same relatives of his father are his bandhus. The same rela- tives of his mother are her bandhus. (a) They succeed in the order in which they have been enumerated. See Vyav. May. Chap. IV., Sec. VII., pi. 22.
The chief reason for which we hold that all the Bhinnagotra-Sapindas inherit under the law of the Mitak- shar^, is that Vijii^nesvara declares "the Bhinnagotra- Sapindas (or Sapindas who are not Gotrajas, u e. who do not bear the same family name) to be understood by ths term Bandhu (bhinnagotrdnafii sapindftn&m bandhusabda- grahanat). Against this it must not be urged that the opinion stands in contradiction to the enumeration given in Mit. Chap. II., Sec. 6 (Colebrooke), as this enumera- tion most likely is only intended to secure a preference for the nine Bandhus named there, (b) For Hindu lawyers are by no means so accurate that they would hesitate to divide an explanation which ought to stand in one particular place> and to give it in two passages.
But a further proof that it is correct to combine the two passages, Mit% Chap. 11., Sec. 5, paras. 3 and 6, is contain- ed in the circumstance that Vijn^nesvara takes the words *' bandhu" and "bandhava** in all the passages of Ydjnaval- kya, where they occur, in a general sense, viz. of relations in general, or relations on the mother^s and father's side, or relations on the mother's side only.
Finally, Vijninesvara himself states, in the passage on the succession to a deceased partner in business, that the Ban-
(fl) Id will be observed that " aunt" and "uncle" in the list mean aunt and uncle by blood, not merely an uncle or aunt by marriage.
{b) It was perhaps originally, by counting five steps, intended to mark the extreme limits of the bandhu relationship, confining rights of inheritance. See note (6) next page.
INTBODUCnoN.] DIVIDED FAMILY. BANDHUS* 135
dhavas include the maternal uncle^ one of those Bhinnagotra- Sapindas who had not been named by him in Chapter II., Sec. 6. As this passage is of great importance for other questions also, connected with the law of inheritance, we give it here in full : —
Yajn. — If (a partner in business) proceeded to a foreign country and died (tbere), his (nearest) heirs (sons, &c.) his relations on his mother's side (b&ndhavah), or his Sapinda relations, or those (partners of his) who have returned (from their journey) shall teike his estate ; on failure of (all) these the king.
Mitakshard—
When amongst partners one proceeded to a foreign coun- try and died, then near heirs (a) (d4y&da), the sons and other descendants ; the cognates (bandhavah) the relations of his mother, the maternal uncle and the rest ; or the gentiles (jnatayah) the blood relations (sapindah) not included among the descendants (6) or those who have come (Agat&h), the partners in business who have returned from the foreign country ; or also these may take his property.
On failure of them, i.e. on failure of the near heirs and the rest (dayadddi), the king shall take it.
And by the word ''or '^ he (Y&jn.) indicates that the right of the near heirs and the rest is contingent (i.e. that not all inherit together). The rule however regarding the order of BDccession, which has been given above (Chapter II., Sec. 1, para. 2) in the text, as to the wife, daughters, &c., applies also here. The object for which this rule (regarding the
(a) Regarding the use of dftj&da in the sense of son and nearest relations, see the Petersburg Dictionary, s. v.
(6) Here, as in other passages, Yijn&ne^vara uses the word Sapinda m the sense of Sagotra- Sapinda, blood relations bearing the same famUy name. As to the order of succession amongst the Bandhns «^' Book I. Ch. II. § 15, Introductory Remarks 6, and notes.
136 LAW OF IRHEEITANCE. [boOK I.
BQCcession to a deceased partner in business ) has b^eo given, is to forbid (the succession) of pupils, of fellow- students, and of the Brahmin community, and to establish (in their stead the succession of) merchants (partners). Amongst the mer- chants, he who is able to perform the funeral oblations, to pay the debts (of the deceased), &c., shall take (the estate). But if all are equally able (to fulfil the conditions mentioned), all the merchants who are partners shall have it. On failure of them the king himself shall take it, after having waited ten years for the arrival of the (near) heirs and the rest Just this has been distinctly declared by Narada (Sambhd- yasamutth&na), vs. : —
"156. But on failure of such (partners), the king shall protect it well for ten years/*
"16. After it has remained without owner for ten years and if no heir has appeared (within that time), the king shall take it for himself. By acting thus the law is not violated."
*' 7. If (among partners) one die, an heir (dayada) shall take his (estate), or some other (partner) on failure of heirs, if he be able (to perform the funeral oblations, &c.), (or) all of them (shall share it)."
According to Vijiianesvara, the meaning of this verse of Yijnavalkya is, that the sons, sons' sons, and the rest of the heirs, specially enumerated in Mit. Chap. II., Sec. 1, para. 2, the Gotraja-Sapindas, the BUndhavas or Bandhus, partners in business, or, on failure of all these the king, shall inherit the estate of a partner in business deceased in a foreign country, and he states distinctly, that the maternal uncle who had not been named in Section 6, inherits aa Bandhu, The irresistible conclusion to be drawn from this statement, as well as from the words quoted above from Mit. Chap. IL Sec. 5, para. 3, is that the enumeration of the Bandhus given in Section 6 is not intended to be exhaustive, any more than in the case of the Gotraja-Sapindas. But if this enumeration is not exhaustive, then clearly all those Sapindas must be
INTRODUCTION-] DIVIDED FAMILY. SPIRITUAL RELATIONS. 137
understood by this term who were not included among tho Gotrajas. This view has been adopted by the Privy Council in Gridhari Loll Roy v. Tlie Bengal Government , (a) reversing the decision in Government v. Gridhari Lall Roy, (b).
See on the same subject the Introductory Remarks to Book L, Chap. II., Sec. 15-
According to the definition of the word Sapinda, and according to that of Gotraja-Sapinda, given above pp. 122-3, the following persons are Bhinnagotra-Sapindas : —
1. Daughters of descendants and collaterals within six
degrees.
2. Descendants of a person^s own daughters and of those
persons expressly mentioned within four degrees of such persons respectively, e.g. a grand-daughter's grandson, but not the great-grandson, since Sapin- da-relationship through females is restricted to four degrees.
3. Maternal relations within four degrees, see table,
Bk. I., Chap. IL, Sec. 15.
[On failure of sons and brothers united and separated, the succession goes to the parents separated, and then to the wife according to the Viramitrodaya, Transl. p. 204, which assigns the next place to the sister and then brings in the Sapindas and Sam&nodakas, p. 216.] (c)
$3 B. (17) Spiritual Relations. — On failure of Bandhui^ a preceptor, on failure of him a ini]pil, and ov failure of hira a fellow-studenti inhent the froperty of a separate householder of the Brahman caste.
Authorities.
Mit. Chap. II., Sec. 7, paras. 1 and 2 ; Vyav. May. Chap. IV., Sec. 7, paras. 24 and 25.
fa) 12 M. I. A. 448. (b) 4 C W. R. 13.
(f) See the Vh-amitvodHya, Transl. p. 206 ss.
18 n^
138 LAW OF INHERITANCE. [bOOK 1.
§ 3 B. (18) The Beahman Community. — On failure of a fellow-student y learned Brdlimans {Srotriyas), on failure of them other Brdhmans, tahi the estate of a sejyaratc householder of the Brahman caste.
Authorities.
Mit. Chap. II., Sec. 7, paras. 4 and 5 ; Vyav. May. Chap. IV., Sec. 8, paras. 25 and 26.
For the point that this succession is restricted to the pro- perty of a Brdhmau, see the passage from Vijfianesvara, translated above p, 135, where no mention is madeofthr Brahman community by Yajnavalkya, and the Mit&kshaiii expressly excludes it from succession to a trader.
This succession has been disallowed by the English Courts. See Stokes, Hindfl Law Books, p. 449, note a, and The Col- lector of Masulipatam v. Cavahj Vencata Narainappa. (a)
§ 3 B, {19) The Partners in Business of a Banya. — 0,i failure of Bandhus, partners in business tal'e the estate of a Banya,
(a) 8 M. I. A. 620. The succession of the caste ou failure of other heirs is not provided for except in the case of Brahmans. In their case it rests perhaps on an idea of dedication in grants to a Br&hmaii, so that resumption would be a kind of sacrilege, and property oucc given raust in case of need pass ^y ^frh to other Bi-&hmans who have moreover a kind of spiritual title to the world and nil that it contain.^ (Col. Di. Bk. II. Ch. II. T. 24; Manu VIII. 37, VII. 83). But tribal succession is found in many districts on the Northern frontier of India where any tribal organization has been preserved, and was probably at one time general amongst the indigenous tribes (sf Panj. Cust. Law, vol. II. p. 240, etc.) It may be traced to tribal dis- tribution of the whole or of part of the tribal lands to individual members, of which many instances occur; ib. pp. 254, 214, and vol. I. pp. 93, 94. See also Mr. Chaplin's Report on the Dekkhan, Bev. and Jud. Sel. vol. IV. pp. 474, 475; and comp. Arist. Pol. IV. (VII. Ch. X, and Eolland and Lnng's Edn. Introd. Chs. IV. and XIII.
INTRODUCTION.] DIVIDED FAMILY. ESCHEAT. 139
AUTHORITT.
Mitakshara quoted above p. 135.
§8B. (20) The King.— 0>i failnre of a fellow ^student, the king takes the estate (f a separate householder or tern- porary student of the non^Brdhminkal castes, with the exception of that of a mei^chanty which escheats on failure of partners only, ajid after a lapse of ten years.
Authorities. Mifc. Chap. IT., Sec. 7, p. 6, and Mit. quoted above.
Failing other heirs the State takes the property even of a Br&hman by escheat, subject to the existing trusts and charges, (a)
The Crown desiring to take an estate by escheat must show an entire failure of heirs. (6)
As only his own offspring become joint-owners with a man W their birth, tho title of a remote heir cannot prevail ^!?ainst his bequest of his separate property (c) though quired by a partition, and so held as under the former Title, contrary to 1 Strange, H. L. 2G, 2 ih, 12, 13, but agreeing with Colebrooke, ih, \h; see Book II., Ch. T., Sec. 2,Q. 8.; wfra Bk. II., Ch. I., S. 2, Q. 8.
(a) The Collocinr of ManvXipatam v. C, Venrafa Narrainappah, 8 M. I- A. 500.
ib) G)'idhavi Lall Roy v. The Boyigal Government, 12 M. I. A. at pp. 45i, 469.
(c) Bliika Y. Bhana, 9 Harr. R. 446 ; Narottani v. Narsanddft^ 3 ^m. H. C. R. (j A. C. J. ; Baboo Beer Pcrtab Sahce v. Maharajah R^j?nder Pprfab Sahce, 12 M. I. A. 1 ; Tuljardm Momrjl v. Mafhnra- '^''« and otherft, I. L. R. 5 Bom. at p. 668.
140 LAW OF INHEKITAXCE. [bOOK I.
§ 3 C— SUCCESSION TO A SAMSRISHTI.
(1.) Sons, Sons* Sons, &c. — So^is, sons' sons, and their sons inherit the estate of a Samsrlshtl or reunited coparcener, per stirpes, provided they live united with their fathers, or have been bm-n during the time that their fathers wert reunited. The rides regarding adopted sons (p. 71) aniJ a Sddra's illegitimate son (p. 72) apply likeioise in the case of a nnited coparcener, Fosthumoxis sons also inherit.
AUTHOKITIES.
Mit. Chap. If., Sec. 9, paras. 1 and 4; Stokes H. L. B. 452.
Reunion may take place, according to the Mitukshara, with a father, a brother, and a paternal uncle (Chap. II., Sec. 9, para. 2), by their again mixing up their effects after a division between them hats taken place. The Vyav. May. allows reunion between all such persons as at some time or other have been coparceners (avibhakta). (Vyav. May. Chap. IV., Sec. 9, para 1.) Sen also the Vlramitrodaya, Transl. p. 205.
As the Mitakshara states that the Rules of Sec. 9 form exceptions to those given in Chap. II., Sec. 1, regard- ing the succession of the wife, &c., it follows that all the rules on the apratibandhadaya, the unobstructed inherit- ance, remain in force, and that consequently reunited sons, sons' sons, sons* sons' sons, adopted sons, and the Sudra's illegitimate son, inherit the estate of their ancestors, if they are united or reunited with them. A new family, in a general sense, is set on foot, and the rules applicable to a joint family apply amongst its members, though with somo exceptions, arising from the consanguinity of those excluded from the reunion, which will be presently noticed.
According to the Subodhini, sons who are not reunit- (^d with their fathers, nevertheless receive a share of the estates of the latter. (Mit. Chap. II., Sec. 9, para. 9, note.)
IXTRODUCTION.] REUNITED FAMILY. 141
According to the Mayftkha also^ unreunited sons take the estates of their father, except in the case where some sons are reunited with him. Then the latter have the preference. (Vyav. May. Chap. IV, Sec. 9, para. 16.)
§ .3 C. (2.) Rbunited Coparceners. — On failure of his mue, the reunited coparceners inherit the estate of their coparcener. But if amongst those thus reunited there he brothers born from different mothers the reunited brothers (f the whole blood take the whole of their reunited, full brother^s estate. If among full brothers one is reunited with a half brother a7id another not, on the death of the reunited brother the reunited half-hrotlier and the vn- reunited full 'brother share his estate equally*
Authorities,
Mit. Chap. II., Sec. 9, paras. 2, 5, seq. and 11.
According to the Subodhini, a father, whether reunited ov not, shares the estate of his son (see Mit. 1 . c. para. 9, note), and a son, though not reunited, shares the estate of the father with a son united or reunited, but this seems inconsistent with Mit. Chap. I., Sec. 6, p. 4.
According to the Vyav. May. : —
1. The parents hajre a preference before other reunited coparceners, excepting sons (Vyav. May. Chap. IV., Sec. 9, paras. 17, 18).
2. Other coparceners standing in an equal relation share the estate of a childless coparcener equally (Vyav. May. 1. c. para. 19) ; but the whole-bro- ther takes in preference to the half-brother. [Ibid, para. 8.)
'o. Unreunited full brothers share the estate of a full brother who was reunited with half-brothers or remoter relations, together with the rennited relations. (Vyav. ilay. 1. c. para. 20.)
142 liAW OP INHERITANCE. [bOOK I,
4. In case of the reunion of a wife alone — there being no other coparceners — she takes the inheritance of her reunited husband; on failure of her, a daughter and a sister, on failure of them, the near- est Sapinda. {Vyav. May. 1. c. paras. 21-25.) j
It is difficult to understand how a reunion with a wife can f take place, since according to Apastamba II., 6, 14, 16 seq. .j no division can take place between a husband and wife. No such partition is known in actual practice at the present day, and Nilakantha^s rule may be regarded as merely speculative, resting perhaps on an analogy to the passage of Apastamba (a) which calls a woman's own property her share in an inheritance. The rules as to inheritance after partial or complete reunion are complicated through the endeavours of the commentators to give eflTect to two rules, one in favour of reunited brethren and one in favour of whole-brothers, which, in some cases, clash or overlap, (b) The favour shown in a reunited family to the brother of the whole blood rests on rather artificial reasoning, but it may perhaps be traced back to the institution of marriage with , wives of diflferent castes and of a patnibhfig or a division in which the shafes of each group of sons varied according to the mother's class. The general rule of equal rights on a second partition would deprive the favoured sons of their \ larger portions, unless thus qnalified. But the rule of un- equal inheritance does not seem really reconcilable with that of equal partition amongst whole and half-brothers reunited, unless the inherited shares taken by the former are to be re- garded as separately acquired property ; for which in a united family there seems to be no authority. The contra- diction would be most easily avoided by regarding the qualification by whole blood as one not extended in its oper- ation by its happening to coincide in the same person with
(a) Transl. p. 134. Comp. Coleb. Dig. B. V. T. 515, Comm. {b) See Viramit. Transl. p. 209.
INTKODUOTION.] REUNITED FAMILY. 143
the capacity arising from reunion. Otherwise Manu's text, IX. 210, might be taken, as proposed by some, only to limit the eldest brother to equality, as opposed to any special right arising from his eldership, while the general rule of partition, instead of absolute equality, would be that of shares proportional to those brought in by the several copar- ceners at the time of their reunion. {See Vyav. May. Chap- IV., S. 9, pi. 2, 3. Vlramitrodaya, Transl. p. 205.) Regard being thus had to the comparative value of the diflFerent elements of the reunited estate, it might be extended to supervening inequalities, arising from inheritance inter se or acquisitions from without, in the shares of the several members, (a)
The practical difficulties in the way of thus dealing with reunited property may be the reason why the people in this part of India (b) have been content in practice to abide by the rule in a reunited, as in an unseparated family, of partition giving equal shares to the descendants of each son of the former owner in whom the different lines of ascent coincide, and of survivorship rather than of inheritance, in the English sense, amongst the members of the reunited family down to the moment of defining their rights according to the several branches in making a partition, (c)
The Privy Council say that " a member who has sepa- rated from a Hindil family and subsequently rejoins it, is remitted to his former status.^'(ci) And so too where a
(a) In the Multan District a member of a united family even, who has joined his separate acquisition to the common stock, is allowed to withdraw it before partition. iSeePanj. Oust. Law, vol. II. p. 275.
ib) ISee too Unro Doss DoiftecOar v. Sreemntty Huro Pria, 21 0. W. R. 30.
{c) See Chap. II. Sec. 11, Q. 5 ; Mohabeei' Parshad v. Ramyad Singh etal, 20 C W. R. 192, 194; Gavuri Devamma Gdru v. Raman Dora G4ru, 6 M.H. C. R. 93; and below Book II. Introd. * The family living in unim, ' and More Vishavanaili v. Ganesli Vlthal, 10 Bom. H. <^ R. at y. 461.
(d) Prankishen Paul Choivdry v. Mofhooyamolnm Paul Chowdrif, l'^ M, I. A. 403.
144 LAW OF INHEKITANCK. [bOOK I.
brother had brought his separate gains into the common 8tock. (a)
According to Brihaspati the acquirer in a reunited family ol what in a united family would bo his separate property ob- tains only a double share as compared with the other mem- bers. See Viramit., Transl. 205. This exaltation of the com- inon right in a reunited family is not recognized iu practice.
The Viramitrodya (b) quotes the Dayatattwa to the eilect that in the case of the reunion of coheirs the extinc- tion of rights over portions and the production of rights orQT the entire estate are acknowledged ; and says of a coparcener that '*if reunited, then although his share had bL^en specified, it was lost by the accrual of a common right over again.'^ (c)
The widow of a reunited coparcener deceased must be maintained while chaste by the survivors, and also his daughter until provided for in marriage. (J)
4 » P.— HEIRS TO MALES WHO HAVE ENTERED A RELIGIOUS ORDER.
■ 1.) To A Yati ok Sannyas!. — Thr virtuous pupil (and not the relative by blood) of a Sannydsi is his heir.
See Book I., Chap. III., Sec. 1, and for Authorities Book L, loc. cit. Q. 1, and Sec. 2, Q. 1 ; Vyav, May. Chap. IV., 8ec. 8, para. 28.
Regarding the question — what is meant by the estate of H Yati ? see Mit. Chap. II., Sec. 8, paras. 7 and 8.
( J.) To A Naishthika Brahmachari. — The preceptor (AMnja) inherits the property of a Naishthika-Brahnachari,
See Book I. , Chap. III., Sec. 2, and for Authorities see Q. !•
(a) Ramperahad Tnonrnyi v. Slieochurn Doss, 10 M. 1 A. at p- 500. {h) Trans, p. 10. (r) Op. n'K p. 164. {d) Op. cit p. 205.
INTRODUCTION.] HEIRS TO FEMALES. 145
HEIRS TO FEMALES.
§ 4 A. — ^To Unmarried Females.
Brothers^ and on failure of them^ the mother, on failure of her the father, and on failure of him the nearest Sapin^ das, inherit the propefi*ty of a girl who died before the completion of her marriage.
See Book L, Chap. IV. A, Sees. 1, 2, 3, and for Authori- ties loc, cU. Sec. 1, Q. 1, and Sec. 3, Q. 1.
Regarding the question — what constitutes the property of an unmanned female, see Mit. Chap. II., Sec. 11, para. SO. The inherited property of the betrothed damsel to which as well as to gifts from her own family her brothers are heirs can but rarely be of great value. But the rule given by Vijnanesvara coupled with the text on which he bases it is important, as it shows that he ranked a heritage in a maiden^s stridhana.
§ 4 J3. — Hejbs to Married Females leaving Issue.
(1) Daughters. — Daughters inherit the separate property, Stridhana, of their mothers. Unmarried daughters in- herit bffore married ones, and poor married ones before rich married ones.
See Book I., Chap. IV. B, Sec. 1, and for Authorities loc* cit., Q. 1 and Q. 13.
The question — what constitutes Stridhana, the separate property of a married female, as well as its descent, are topics regarding which, as Kamal&kara in the Vivada- tandava despairingly exclaims, '^ the lawyers fight tooth and nail,^^ (yatra yuddham kach&kachi). It is impossible to reconcile with each other even the views of those lawyers whose works are the authorities in this Presidency. As pointed out in the Introductory Remarks to Book I., Chapter IV. B, Sec. 6, N'Jlakantha makes a distinction between the paribhashika, the sixfold stridhana proper, 19 H ^^
146 LAW OF INHEBITANOS. [bOOK I.
as defined by the law-books, and other acqrdsitio&s a?er which a woman may have proprietary rights* This is tiie distinction which Nllakantha keeps in view when fixing the saccession to the estate of a childless married female. Bat in the case of a married female leaving issne, there is yet a third distinction to be observed. In this case^ the following three categories of -stridhana are to be taken into account, and descend each in a different manner : —
a. The Anv&dheya, ihe gift subsequent to the narriage, and the Prltidatta, the afiectionate gift of the husband, are i^ared by the sons and the unmarried daughters, small tokens of respect only heir\g due to married daughters, and some trifle to daughters' daughters. (Vyav. May^ Chap. IV., Sec. 10, paras. 18-16,)
b. The rest of the p&ribhashika strldhana, the stridhana proper, as defined by the law-books {see Vyav. May. loc. cU, para. 5) descends to the daughters, &c., in the manner described by the Mit&kshar&. (See Vyav. May. he. cU, paras. 17-24 especially, regarding the limitations, paras. 18 and 24.)
c. Other acquisitions, as property acquired by inherifc- :ance, go to the sons and the rest
The Mitdkshara, on the other hand, knows of no distinction ^between p&ribhashika and other stridhana. Everything acquired by a married female, by any of the recognized modes of acquisition, descends in the same noanner to %er daughters, daughters' daughters, &c. The views of the High Courts have varied on this subject like those of the commentators. In the judgment of the Bombay High C/Ourt, in the case of Jamiyatrdm and Uttamrdm v. Bai Jamna (a) the following passage occurs: —
" The notion that according to the Mit&ksharfi such (im- moveable) property (inherited from a sonless husband) forms
(a) 2 Bom. H. 0. R. 11.
INTEODUOTION.] HBIES TO FEMALES. 147
part of the widow's stridhana^ and as such goes on her dbath to her heirs^ not to her husband^ was founded on a passage of Sir T. Strange (p. 248^ 4th ed.)^ which was itself based on a mistaken reference to the Mitakshar&« The Mit. Chap. II., Sec. 11, cL 2, undoubtedly classes property acquired by inheritance under the widow's siridhana ^ but (as pointed' out in DoTacooverbai's case) clause 4 of the same chapter and section conclusively shows that the words 'acquired by in- heritance/ as used in clause 2, relate oi^ly to what has been received by the widow from her brother, her mother^ or Her h&eVfUe. from her own femSy/'
According to thJs passage, it would seem that, in the opi- nion of the Court, clause 4 is to be read with clause 2, and intended to restrict the sense of the latter. Though this interpretation of Mr. Cblebrooke's version of the Mitaksharft might be possible, still no Sanskritist, who reads the original of the Mitakshar&, will be able to allow, or has allowed, that this was the intention of Vijn8.ne8vara. Unfortunately Mr, Colebrooke has left untransl'ated(^) two words of the Sans- krit text which head the 4th clause. These are '^yatpunab/^
' bat as to (what is said by Manu
that is intended,' &c.). It is the custom of Hindfl scientific writers to indicate by these two words, or others of similar import, that the passage which follows is intended to ward off a possible objection to some statement made by them previously. Now, in thfs case, VijSanesvara had stated, in clanse 3, 'that the term ** strrdhana'^ was to be understood according to its etymology, and had no technical (p&ribhl- shika) meaning. The words " yatpunah" (lit. '* again . what") indicate therefore that clause 4 removes a possible objection to clause 3.
The same conclusion indeed follows froB> a eonsidera^ tion of the general course of the argument. " Stridhana,''
(a) Regarding another slight inaccuracy in Colebrooke*B translation of Clanse 2 of Mit. Ch. II., Sec. XI., $ee bel^w. Book I.^ Chap. U.. Sec 2,0. 10.
148 LAW OF INHERITANCE. [bOOK I.
Vijn&nesvara says, "includes property acquired by inherit- ance/^ &c. Such is the real purport (mistaken by some lawyers) of Manu and the rest, for " strldhana^^ etymologicaily means (all) a woman^s acquisitions, and this sense being an admissible one, is preferable to a merely technical interpreta- tion. It is true no doubt that six sorts of strtdhana are ex- pressly enumerated by Manu, but that is meant not as a re- striction to those six, but as a denial only that any of those six are not " stridhana/^ He is commenting on the passage of Yajnavalkya (II., 143, Mit. Chap. II., Section 11, para. 1) which says that a gift, or any other separate acquisition, of a woman is termed " stridhana*'; and he contends, in tacit opposition to the Eastern lawyers, that stridhana is to be taken in the widest sense. It would therefore be a self-contradic- tion if he wound up this contention by admitting restrictions which it was his very object to combat. " What has been received^' in paragraph 4 does not mean '^what has been inherited,'' It means, like the passage in Yajnavalkya, *^what was given by the father,^^ &c., and to apply it to the limitation of the phrase *' acquired by inheritance" in paragraph 2 involves a serious misconception both of the sense of the Sanskrit text, and of the au thorns logical method. Take the several paragraphs 2, 3, 4, however, (1) as develop- ing the sense of the Smriti, (2) as supporting this develop- ment by a special argument, and (3) as meeting a possible objection to that argument, and all becomes explicable and consistent. The process of reasoning is precisely that which argumentative writers amongst the Hindfls usually take. The passage is in its proper place, and involves neither contradiction nor restriction of the preceding statements.
Its meaning consequently is — "But in case you (the imaginary opponent) should say that my statement stands in contradiction to the verse of Manu IX,, 194, then I answer that this verse does not contain a complete enumeration of the various kinds of stridhana, but only gives some of the most important.'' It appears therefore that clause 4 is to be
INTEODUCTION.] HEIRS TO FEMALES. 149
read in connexion with clanse 3. For this reason we must still adhere to Sir T. Strange'a opinion^ that the property inherited from the* husband becomes, according to Vijn&nesvara, strt- dhaoa. The most recent decision of the Judicial Committee to be presently cited puts a narrower limitation on the rule than that adopted by the High Court of Bombay in Jamiyatram^s case, (a) That case allowed property inherited from a woman's own family to rank as stridhana, but the gifts par- ticularly specified as forming part of the stridhana were clearly not meant to include inheritance, and the technical restriction of stridhana being accepted at all, necessarily leads to the result of excluding inheritance altogether, which is the one arrived at by the Privy Council. The Vlramitro- daya (Transl. p. 136 ss.) assigns to the widow complete ownership of her separated husband's estate on his death with a right to dispose of the property if necessary. But from an injunction of Eatyayana to the widow only to enjoy the property with moderation, Mitramisra deduces a limitation in her case on the power of alienation usually accompanying ownership, except for necessary religious and secular purposes. And another part of the same passage : '^ After her let the heirs, (dayadas) take,'' he construes as meaning the husband's heirs because of the previoua reference to the husband and the honour of his l)ed, not the widow's own heirs — her daughters, etc. This passage is not quoted by Vijn&nesvara. He merely makes property taken by a woman as heir part of her stridhana, and says that her stridhana as thus defined is to be taken by her kinsmen. (6) So Colebrooke has understood the doctrine, which he contrasts with the different views taken by the lawyers of the Eastern School, (c) In Bhagwandeen Doobey v. Myna Baee,{d) the Privy Council were of opinion that no pro- la) 2 Bom. H. C. R. 11.
(b) Mit&kBhar& Chap. II., Sec. XI., paras 2, 9.
(c) See his notes 2-13 to para. 2 of Mit&ksharft Chap. II., Sec. XI. W) 11 M- 1. A. 487.
150 LAW OP INHBRITANaB. [BOOK I.
perty, inherited by a woman from her husband^ formed part of her strldhana in the narrower sense involving a special mode of devolution. Property inherited from a father or a brother has, on the other hand, been held in Bombay to be strldhana, and a widow has been held to sacceed to her son^s property on the same terms as to her hnsband's. The ques- tion then arosoy whether all property inherited by a woman was under the Mitakshar& to be deemed strtdhana, or whether none was so. In the case of Vijidrangam v. Lakshmarijla) stridhana is said, according to the Mit^kshara, to include all a woman's acquisitions of property, the descent of which is go- verned by . the form of her marriage. According to the Vyavahara MayOkha, it is said, stridhana in the narrower sense descends according to special rules, while stridhana such as property inherited descends as if the female owner had been a male, {b) The latest ruling of the Judicial Com- mittee on this subject which seems intended to shat out all further controversy is, that regard being had to the authority of other commentators and to other parts of the Mit&kshar^, the passage declaring property inherited by a woman to be stridhana does not in the case of '^inheritance from a male*' confer upon her '* a stridhana estate trans- missible to her own heirs. '* (c) It is on her death to pass to ''the heirs'' of the last male owner, the woman's estate being regarded as a mere interruption. This may not, un- fortunately) settle the matter. The decisions in Bombay have not been placed on so extremely general a construction as that adopted by the Privy Council, (d) The local usage
(a) 8 Bom. H. 0. R. 244, O. C. J.
(h) See below on Stridhana, and Jcukisondas v. Harhiscmdas, In. L. R. 2 Bom. 9.
(c) Muita Vaduga/nadha Tevar v. Dorasinga Tevar, L. R. 8 I. A. 99. 109.
(d) See Tuljdrdm Morarji v. Mathurddde, I. L. R. 6 Bom. 662 ; Fi- ndyak Antmdrdo v. Lakshmihdt, 1 Bom. H. C. B. at pp. 121, 124; Bdi Benkor v. Jeahankar Motvram, Bom. H. C. P. J. P. for 1881 p. 271.
'*'^"^^:f
IKTBODUOTION.] HEIES TO FEMALES. 151
m»7 perhaps not admit it, (a) and the '' other commentators'' accepted as haying authority in Madras have little or no weight in Bombay against the Mit&kshar^ itself, (b) There is an exception in the case of the VyavahlLra MayAkha, but this work does not give back the heritage after the death of a female successor to the original heir: it makes the female the source of a new line of descent as if she were a male.(c) Such at least is the literal sense of its rule : how it is to be worked out in detail is not laid down.
In Madras it would seem that the daughter's estate is wholly assimilated to the widow's (d) as to succession on her
death.
Prom the rule given in § 4 JB (1 ), the '^ fee or gratuity" of a woman is excepted^ which goes to her brothers (Mit. Chap. II., Sec. 11, para. 14) , we also Gautama XX VIIL 23, 24.
§4J?. (2) Grand-daughters. — On failure of daughters, daughters* daughters inherit the estate of a married female.
See Book I., Chap. IV. B, Sec. 2, and for Authority loc. cit. Q. 1.
Grand-daughters, descended from different daughters, share according to their mothers. (Mit. Chap. 11., Sec. 11, para. 16.)
On concurrence of daughters and grand-daughters, the latter receive a trifle. (Mit. Chap. II., Sec. 11, para. 17.)
(a) See The CvUector of Madura v. Moottoo BamaUnga Saihwpathy^ 12 M. I. A. at p. 436 ; Steele L. C. pp. 63-66.
(h) Nardyan Bdbdji v. Nana Manohar, 7 Bom. H. C. R. 167, 169 5 Kriahnaji Vyanktesh v. Pandurang, 12 Bom. H. C. R. 66; The OoU lector ofMadvra v. Moottoo Ramalinga Sathupathy, at pp. 438, 439; Latluhhdi Bdpubhdi v. MdnJcuverhdi, I. L. R. 2 Bom. at p. 418 ; Rdhi V. OovindvaladT^, I. L. R. 1 Bom. at p. 106; Sakdrdm Saddahiv T. Sitabdi, I. L. R. 3 Bo. at pp. 367, 368.
(c) See Vyav. May. Oh. IV. § X. para. 26, Steele L. C. pp. 63, 64.
(d) See MuUayan Chetti ▼. Sivagtri ZamindAr, I. L. R. 3 Mad. ai p. 374; Smmawi Ammdl v. MuttamaZ, lb., 268.
152 LAW OF INHERITANCB. [bOOK I.
§ 4 B. (3) Daughters^ Sons. — On failure of daughters^ dmtghters, daughters* sons inherit the estate of a married female.
See Book I., Chap. IV. B, Sec. 3, and for Authority he. cit. Q. 1.
§4 5. (4) Sons. — On failure of daughter's sons, sons inherit the estate of a married female.
See Book I., Chap. 11. B, Sec. i, and for Authority loc. cit, Q. 1.
§ 4 B. (5) Sons' Sons. — On failure of sons, sons' tons inh^t the estate of a married female.
AUTHOEITT.
Mit. Chap, n., Sec. 11^ para. 24.
§ 4 C. — Heirs to a Married Female Leaving no Issue.
(1) The Husband. — On failure of sons' sons, the husbavd inherits his wife's estate, if she was married according to one of the laudable rites. \If she was married accord- ing to one of the blamed rites, her property devolves en her parents.']
See Book I., Chap. IV. B, Sec. 5, and for Authority loc. cit. Q. 1.
There are no opinions of the Sastris in the Digest illus- trating the parts of this and the following paragraph en- closed between brackets [ ]. See the cases of Vijidran- fjam V. Lakshaman, (a) and Jaikisondas v. HarTdsondas.(b)
2. Regarding the question, which rites of marriage are laudable and which blamed^ see Book I., Chap. IV. B, Sec. 5, Q. 1, and Bemark.
(a) 8 Bom. H. C R. 244, 0. C. J.
(b) In. L. R. 2 Bom. 9.
INTRODUCTION.] PERSONS DISQUALIFIED. 153
§ 4 0. (2) The Husband's Sapindas — On failure of the hus- band, the hushancCs Sapindas, or blood relations within six degrees on the father's side, and within four degrees on the mother^ s side, together with the wives of such male hlood relations, inherit the estate of a female leaving no issue, if she wa^ married according to one of the laudable rites, [i/* married according to the blamed rites, the estate devolves on her parents* Sapindas.']
See Book I., Chap. IV. B, Sec. 6, and for Authority loc. cit. Introductory Remarks.
§ 4 0. (3) Widow's Sapindas. — On failure of the husband* s Sapindas, the widow*s own Sapindas inherit her StrU dhana even though she was married according to the laudable rites.
See Book L, Chap. IV. B, Sec. 7, and for Authorities see the Introductory Remarks to that Section.
§ 5.— PERSONS DISQUALIFIED TO INHERIT.
Persons disabled from inheriting are —
1. Persons diseased, or infirm in body or mind, who are —
a. Impotent,
6. Blind,
c. Lame.
d. Deaf. 6. Dumb.
/. Wanting any organ.
g. Idiots,
h. Madtnen. 20 H
164 LAW OF INHBBITANCB. [bOOKI.
u Sufferers from a loathsome and incurahle dis- ease such as ulcerous leprosy. See Ch, VL, Sec. 1, Q. 5 (a).
2. Illegitimate children of Brahmansy Kshatriyas,
and Vaisyas.
3. Persons labouring under moral deficiencies^ —
a. Enemies of their father.
h. Outcastes and their children, (b)
e. Persons addicted to vice, (c)
d. Adulteresses and incontinent widows.
See Book I., Chap. VI., and for Authorities see Book I., Chap. VI., Sec. 1, Q. 1, 5 ; ibid. Sec. S a, Q. 1 b, Q. 1, and c, Q. 1.
RSMARES.
Regarding the question — whether diseases, infirmities, or moral taints contracted after the property has vested, disable a person for holding it any longer, see Remark to Book I., Chap. VI., Sec. 8 c, Q. 6.
(a) Se« Ananta v. Bamdhdi, I. L. R. 1 Bom. 554 ; Jandrdhan Pdndurang v. Oopdl et al., 5 Bom. H. 0. R. 145, A. C. J. ; and as to wife's society, Bdi VremhCwa/r v. Bhika KaUianji, 5 Bom. H. C. R. 209. A. C. J.
(h) 5^66 above p. 58(a). The sons of outcastes bom before their &ther*s expulsion are not outcastes but take their fother's place. Sons bom after expulsion are outcastes, but Mitramisra says a daughter is not, for " she goes to another family." Vtramitrodaya, Tr. p. 254, Steele L. C. p. 34. The doctrine of outcastes' heritable incapacity does not apply to families sprung from outcastes, 8yed Ali 8aib v. Sri B. S. Peddahali Yara Simhulu, 3 M. H. 0. B. 5. Act 21 of 1850 has removed any disqualification occasioned by jexelusion from caste.
(c) In a case at 2 Macn. H. L. 133 it is said that an unchaste •daughter cannot succeed to her parents. Compare B. I. Ch. VI., -Sec. 3 c, Q. 6^ and Mvssamut Ganga Jati v. OhaHta, I. L. R. 1 All. 46.
INTRODUCTION.] SPECIAL USAGE. 155
It is only congenital blindness that excludes from inherit- ance according to Umabai v. Bhavu Padmanji, (a) follow- ing Murdrji Qohuldis v. Pdrvatibdi, (6) see also Bikubdi v. Munchdbii (c) for the different views held by the l^^tris. The same condition as to dumbness is laid down in Val^ labhram v. Bai Hariganga.{d) As to mental incapacity, it is said, in Tirumamagal v. Raviasvami, {e) that only congenital idiotcy excludes. In 2 Macn. H. L. 183, the disqualifications are discussed at considerable length. In Steele's Law of Castes a general rule of exclusion for persons labouring under the specified defects is laid down at pi^e 61, but this has been largely qualified by custom. At page 224: it is said that in seventy-two castes at Poena it was found that insanity excluded only unmar- ried persons, and that in eighty-three castes, blind persons, married and having families, might ihherit. In such cases the management of the property would devolve on the owner's relations. See Bhikaji Eamachandra v. Laksbmibai, (/) aa to management of a suit. There is a case in which a boy bordering on idiocy was allowed to transmit a heritable right to his widow, (g)
§ 6.— SPECIAL RULES OF INHERITANCE ACCORD. ING TO CUSTOM. SACRED PROPERTY.
The HindA Law is largely influenced by custom, as already pointed out. But as even those castes and classes which have adopted special customs still recognize the general snpre-
(a) I. L. R. 1 Bom. 657. (h) I. L. R. 1 Bom. 177.
(c) 2 Bom. H. C. R. 5.
(d) 4 Bom. H. 0. R. 135 A,C. J. ; see also Mohesh Chwnder Boy «< oZ, V. Chunder Mohun Boy et oZ., 23 C. W. R. 78 S. C. 14 Beng. L. R. 273.
(e) 1 M. H. C. R. 214.
(/) SpecSa Appeal No. 62 of 1875 (Bom. H. C. P. J. F. for 1875^ p. 231).
is) Bdi Amrii y. Bdi Manik et al, 12 Bom. H. C. R. 79.
156 LAW OP INHERITANCE. [bQOK 1.
macy of the sacred writings, any divergence of custom from the ordinary law of succession must be established by satis- factory evidence, (a) unless it has already been recognized as law binding on the class or family to which the parties belong, whom it is proposed to subject to the custom. A custom of male in preference to female inheritance to Bhdgdari lands in Gujarat was recognized in Prdnjiwan v. Bdi Revd (b) as it had previously been in Bhdu Niniji Vtpat V. Sundrdbai (c) to temple emoluments.
A family custom thus established binds the individual holder of a r^j or zamindari so as to prevent his dividing it equally amongst his sons, (d)
(a) An Ikramama, signed by four brothers, was received as evidence sufficient to estabhsh the adoption of a family custom of excluding childless widows from inheritance, differing from the general custom of the country, Russih Lai Bhunj v. Purush Munnee, 3 Mori. Dig. 188, Note 2.
In Rajah Nttgendur Narain v. Baghonath Narain Bey (C. W. R- for 1864, p. 20) it was held that a family custom as to intermarriagci might be proved by declarations made by members of the family. But still the course of devolution prescribed by law cannot be alterod by a mere private arrangement. Bdlcrishna Trimbak Tendidkar v. Sdvitribdi, I. L. R. 3 Bom. 54.
In the case of an English copyhold an exclusion of females from succession and dower was held an admissible modification by cus- tom of a cDstomary rule of inheritance, though in Ireland it had been, in the case of Tanistry, pronounced void. See Elton's Tenures of Kent, 55.
(h) I. L. R. 6 Bom. 482.
(c) llBo. H. C. R. 249. See Colebrookein 2 Strange's H.L. 181 ; 1 Maen. H. L. 17, as to a Kul&chir or family custom ; and on the same subject, the Judicial Committee in Chowdh/ry Chintamon T. Mussamut Nowluhho, L. R. 2 In. A. at p. 269 ; Ramialakshmi Ammd V. Sivanantha Pei-umaly 14 M. I. A. 576, 685, S. C. L. R. S. I. A. 1; Ndrdyan B&bdji ct al. v. Ndyid Manohar et ah, 7 B. H. C. R. 163, A. C. J. ; Bhagvdvdas v. BdjmdZ, 10 B. H. C. R. 260-261. ■*
{d) Baxout Urjun Singh v. Batvui Qhanatiam Singh, 5 M. I. A., 1G9, 180.
r
INTBODUOnON.] SPECIAL USAGE. 157
The cases of The Court of Wards v. Bajcoomar Deo Nun- dun Sing;(a) Rajkishen Singh v. Bamjoy Surma et al. ;(b) Chowdhry Chintamoii Singh v. Musst Noivlukho Konwari, (c) and the remarks of the Privy Council in Soorendronath v. Mussamut Heeramonee(d) show that a family custom of inherit- ance may be abandoned. •
The ordinary rules of HindA law are applicable to Jains^ no special custom being proved, (e) Hence in the absence of cnstom or usage to the contrary, an alienation by gift by a widow of her husband^s property is invalid according to the Mitikshara which governs the Bindala Jains.(/ ) The Khojas —a class of Mahomedans converted from Hinduism — are governed by the Hindu law of inheritance except so far as this has been modified by special custom. Being of Gujarathi origin the Khojas allow a precedence to the mother over the widow, which is common to many castes in Gujarat, but the mother is not allowed to dispose of the estate, and after her death it goes to her son's heir, usually his widow, (g)
Succession to a R9j was held to be governed by custom in Arjun Manic et ah v. Bam Oanga Deo, (h) by nomination in Ramgunga Deo t\ Doorga Munee Jobraj (i) and Beer Chunder
(a)16C.W. R. 143. (h) I. L. R. 1 Calc. 18i5.
(c) L. R. 2 In. Ap. 269, 273.
(d) 12 M. I. A. at p. 91.
(e) Lalla Mohabeer Pershad et al. v. Musst Kundun Koowar, 8 C. W.B. 116; M. Oovindnath Roy v. Oulal Chand et al, 6 C S. D. A. R. 276; Skeo Singh Bai v. Musst. Dakho et al, 6 N. W. P. H. C. R. 382; S. C. L. R. 5 I. A. 87; Bhagvmdds TejmalT, BdjmdJ, 10 Bom. H. 0. R. 241 ; Hasan Ali v. Naga Mul, I. L. R. 1 All. 288, where a special custom of adoption prevailed.
(/) Bachehi V. MakhanLal, I. L. R. 3 All. 55.
i9) Shivji Easam v. Batu Mdvji Khqja, 12 Bom. H. C. R. 281 ; Birhaiy. Gorbdi, 12 Bom. H. C. R. 294; Rahimatbdi v. Hirbdi, I. L. I^. 3 Bom. 34.
(M 2 Calc. Sel. S. D. A. R. 139. (*) 1 Calc. S. D. A. R. 270.
158 LAW OF INHEBITANOB. [boOK U
Joobraj v. Neel Kishen Thakoor et al.(a) An illegitimate son was excluded in Bulbhudda Bhourbhur v. B, Juggemath 8ree Ckundun, (6) As to a quasi-Baj see Chowdhry ChintaTnon Singh v. Musst. Nowlukho Konwari, (c) and the decision of the Judicial Committee in Periasdmi et al. v. The Bepresentativet of Salugai Taver.(d)
A Kulachar, allotting certain portions of zamindaris to junior members, (e) does not render the savings and accumu- lations made by those members joint property. (/)
A family custom of inheritance is not destroyed by a re- settlement of the terms of the holding from the Govern- ment, even though this should destroy many incidents of the previous tenure, (g) and when after a confiscation for 2G years, a grant of a " raj " was made to the brother of the former holder, the intention of the Government, it was held, was to restore the tenure as it had previously existed, with the special qualities of succession according" ta the family law. (A)
When by family custom an estate is impartible, the ordir nary HindA law is suspended just so far as is necessary to
(a) lew. R. 177.
(h) 6 Calc. Sel. S. D. A. R. 296.
(c) L. R. 2 I. A. 269, 273. See Maine, Ancient Law, Ch. VII p. 233.
W) L. R. 5 I. A. 61.
(e) This custom of providing an appanage for each janior branch- ia widely spread, and probably sprang from political conditions. See Col. Dig. Bk. XL, Ch. IV., T. 15 Comm. : Panj. Oust. Law, II., 183; St. L. C. 229. Comp. HaUam Mid. Ag., vol. I. p. 88 (Ch. I., Pt. H)^
(/) Chowdry Hv/reehwr Pa'shad v. Gocoolanand Dose, 17 C W. B. 129.
[g) Rajkishen Singh v. Bamjoy Surma Mozoamdar, I. L. R. 1 Cafc- 186.
(h) Baboo Beer Peitab Sahee v. Maharajah Bajender Pertab 9^^* 12 M. I. A. 1.
rNTEODUcrnoN.] special usage. 159
give effect to the particular custom^ but the general law still regulates all that lies beyond its sphere, (a)
The impartibility of an estate does not necessarily imply that it is inalienable. (6) The inalienable quality is a ques- tion of family custom requiring proof, (c) Yet as a point of cnstomary law impartibility may be expected to be accom- panied generally by limitations on alienability, having the same object in view, the preservation of the estate to sup- port the political, official, or social rank of the head of the family. In Rajah Nilmony Singh v. Bikram Singh (d) the Judicial Committee say : — **The same principle which pre- cludes a division of a tenure upon death must apply also to a division by alienation.^' (e)
A bad custom will not be allowed. (/) Nor is a custom depending on instances to be extended beyond them. (9) If opposed to recognized morality or the public interest it is to be disallowed. (A)
(a) Neelkisto Deb Bu/rmono v. Beerckunder Thakoor, 12 M. I. A. 523; Timangavda v. Bangangavda, Bom. H. C. P. J. F. for 1878 p. 242 ; MuHayan CheUi v. Sivagiri, I. L. R. 3 Mad. p. 374.
(h) Naraen Khooiia v. Lohenath Khootia, I. L. R. 7 Cal. 461 ; Anwnd Ul Sitigh Deo v. Maharajah Dheraj Qooroo Narayan Deo, 5 M. I. A. 82.
(c) Rajah Udaya Aditya Deh v. Jaduh Lai Aditya Deb, L. B. 8 I. A 248 ; Na^rin KhooUa v. Lokenaih ut supra.
id) Decided 10th March 1882.
(fl) Comp. Bajah Venkata Naraeimha Appa Row v. Bajah Narraya Appa Bow, L. R. 7 I. A. pp. 47. 48.
(/) Ndrdyan Bharthi v. Laving Bhdrthi, I. L. R. 2Bon]. 140 ; Beg, v. 8ambku, I. L. R. 1 Bom. at p. 352. See Y&jS. by Jan&rdhan Mdhideo Slo. 186 p. 858. N&rada quoted in Col. Dig. Bk. IH., Ch. II., Sec. 28 and Comm. show that customs opposed to morality or public policy are to be refused recognition.
ig) Bahimatbdi v. Hirbdi, I. L. R. 3 Bom. 34 ; compare In re Smart, L. R. W. N. for 1881, p. 111.
ih) See N&rada Pt. II., Ch. X., Jolly's Transl. p. 75. Mathwd ^difcin V. Esu NdiJcin, I. L. R. 4 Bom. 546, 556.
160 LAW OF INHEEITANCE. [bOOK 1.
As to property dedicated to an idol see Juggut Moldni Do88ce et aU v. Mmst. Sokheemony Vossee et al. (a) and Maharanee Brojosoondery Debia v. Ranee Luckhmee Koon- waree et aL(b)
Property dedicated to the service even of a family idol is impressed with a trust in favour of it, dissoluble only by the consensus of the whole family, which itself cannot put an end to a dedication to a public temple, (c) In a case of alienation by one of four Sebaits aliening debuttar, the other three suing to recover the propierty must join the fourth as defendant with his vendees or those deriving from them.(c?)
§ 7.— BURDENS ON INHERITANCE.
Some of the principal burdens on inheritance have already been noticed asin§ 3 4 (5), §3 B (1), in connexion with the rights, to which they are most commonly annexed. The powers of an owner in relation to his property form the subject of the following Section, but it seems useful to collect, in this place, some of the more general rules applying to charges on property which passes to successors as deduced from the recognized Hindu authorities, and the cases decided in recent years.
There is a general obligation resting on the heir (or other person) taking property of one deceased to pay the debts of the late owner. But in a united family this does not extend
(a) U M. I. A. 289.
{b) 20C. W. R. 95..
(c) Dictum of Sir M. E. Smith in Konwar Boorga l^ath Boyy- Ram Chunder Sen, L. R. 4 I. A. at p. 58.
{d) Rajendronaih Butt v. Sliekh Mahomed Lai, L. R. 8 I. A. 135. See also Prommno Koomari Dehya v. Oolah Chund Baboo, L. B. 2 1. A. 146; Konwur Doorganath Boy v. Bam Chunder Sen, L. R. 4 1. A. at p. 57; Khusdlchand v. MdhddevgiH, 12 Bom. H. C. R. 2U; Manohar Ganesh v. Keshovram Jebbai, Bom. H. C P. J. F. for 1878, p. 252.
liSTEODUCTION.] BURDENS ON INHERITANCE. 161
to the debts of a member deceased incurred for his purely personal purposes, or even for the family if there was no necessity, (a) except in the case of a deceased father's obligations (b) lawfully contracted*
Promises deliberately made by the father are by the Hindi! law regarded as equally binding on his sons, especially if made to his wife, (c)
If property descends as hereditary, the income (of a xamindari) is liable to pay the debts of the deceased zamin- dar. Such seems to be the principle involved in the judgment of the Privy Council in Oolgappa Chetty v. ArbuthnoL (d) Bat in Bombay the estate is not, without a specific lien, so hypothecated for the father's debt as to prevent the heir disposing of it and giving a good title; (e) though "it descends incumbered with the debts or accompanied by an obligation to pay the debts of the ancestor.*'(/) In the case of Sangili Virapandia Chinnathambiar v. Alwar Ayyango,r{g) it was held that though an attachment against the lands, impartible by family custom, of a zamindfir for his debts might, if made during his life, continue after his death, yet as at his death the entire interest in the zamin- dari passed to his son, there was nothing in the estate
(o) See Saravan Than v. Muttayi Ammal, 6 Mad. H. C. R. 383; Magluiri Qamdiah v. Ndrdyan Rungiah, I. L. R. 3 Mad. at p. 365, tod below, Partition, Liabilities on Inheritance.
(b) Above, p. 80.
(c) Viramit. Transl. p. 228 ; Vyav. May. Ch. IV. Sec. X. para. 4, Sec. IV. p. 16 ; Ch. IX. p. 10 ; see Act. IX. of 1872, Sec. 25.
(d) L. R. 1 1. A. at p. 315, S. C, 14 Beng. L. R. at p. 141.
(e) Jamiyatr&m v. Parbhudds, 9 Bom. H. C. R. 116.
(/) Sakhardm Rdmchandra v. Madhawao, 10 B. H. C. R. 361. 367. See also Nilkant Chatterjee v. Peari Mohan Dae et al, 3 B L. R 7 O. C. J; Girdharee LaU v. KantooLaU, L. R. 1 I. A. 321 ; Snrnj Bansi Ko^r ▼ Sheo Pramd Singh, L. R. 6 1. A. 88, 106 ; Uddrdm Siidram y. Rim u. lOB. H.C.R. 83;5ai(w^ii;I)inA!arv.l)initariSrardi/ari, Bora H. C P. J- for 1882, p. lZ^\Ndrayandchdrya v. Nareo KrUhnd, I. L. R. 1 Bom- 262.
&) I. L. R. 3 Mad. 42. 21 u
162 LAW OF INHEEITANCB. [booK 1.
itself '' which was attachable assets of the late zamindir, or which could be made available in execation of the decree against his representative qud representative." The son seems to have been regarded as taking the estate as a ''purchaser^' or independently of the father, as under the English Statute De Donis, while other property of which the father could have disposed passed to his representatives as such. The HindA law, however, identifies the son with his father for all lawful obligations, as completely as the Boman law or as the English law under which haeres est pars ants' ces8oris.(a) It was by an analogous identification of persons that the executors as in their sphere '' universal*' successors became representatives of a testator. The impartibility of an estate may, to a considerable extent, prevent its being incumbered, as was the case also with feudal estates; but supposing the estate to be absolutely inalienable as well as impartible it would seem that no charge at all would attach to it after the ownership proceeded against had ended by the death of the debtor, (6) while so far as it was alienable or subject to incumbrance, the heir should be identified with his ancestor for all purposes, as well for the execution of a decree rightly obtained, as for the establishment of a claim. He becomes a representative, and takes as a represen- tative through this identification. What he takes is the aggregate famiiia as a '* universitas*' in the character of '' heres suus " equally when the property is impartible as when it is partible, and this '* universitas ^' or aggregate includes all obligations properly attaching to the headship of the family equally with the property and rights annexed to it. (c) The rules of partition show that the obligation to
(a) Co. Lie. 22, h,
(h) See Goor Perehad v. Sheodeen, 4 N. W. P. R. 137, referred to in Uddrdm Sitdrdm v. Bdnu, 11 Bom. H. 0. R. at p. 78; and Sura Bunei Koer v. Slieo Proshad, L. B. 6 L A. at p. 104.
(c) See Gains. Inst. II. 157 ; Di. Lib. 28 Ti. 2, Fr. 11 ; Co. Di. B. H. Ch. IV. T. 15 Comm.; Vyav. May. V. Sec. IV. 14 as.; ib, Ch. IV. Sec. IV. 33; Manu IX. 130; Co. Di. Bk. V. Ch. IV. T. 210.
INTBODUCTION.] BUBDENS ON IKHEEITANOB. 168
pay a father's debt is a part of the inheritance or familia as mQch as the property to be divided^ (a) and it is not less so when the property is impartible^ save in so far as it migbt defeat the purpose of tbe grantor, or the law of the princi- pality. To the extent, therefore, to which the deceased coold have charged the property or disposed of it, and so enjoyed a complete ownership, it would seem that the heir is a representative liable to execution under sec. 234 of the Code of Civil Procedure on account of such property of the deceased having ''come to his hands/' The distinction grounded in Muttayan Chetti v. Sivagiri Zaminddr {b) on a 800*8 not being able to obtain a partition of an impartible estate does not rest on the Hindft law which makes the son responsible and bids him postpone his own interests to the payment of just debts of his father, (c) He cannot obtain a partition of an ordinary estate in Bengal as of right, but this does not exempt the estate from liability. For the case of a Polygar in Madras see Kotta Bamisdmi Chetti V. Bangari Seshama Nayanivaru, {d}
As to the maintenance of a widow see the Section on Maintenance, and Baijun Doohey et al. v. Brij Bhookun Lall, (e) Musst. LaltiKuar v. Oanga Bishan et aL,{f) Visa- laicki Ammal v. Annasamy 8astry,{g) Baboo Ooluck Ohunder Bose V. Ranee Ohilla Dayee, {h) Lakshman Ramchatidra et
(a) Vyav. May. Ch. IV. Sec. VI.
(6) I. L. R. 3 Mad. at p. 381.
(c) Col. Di. Bk. I. Ch. V. T. 188; Vyav. May. Ch. Y. Sec. IV. 16, 17; and the judgment has since been reversed by the Privy Council in the case of Muttayan Chetilar v. Sivagiri Zaminddr. The Judicial Committee,!. R. 9 I. A. at p. 144, say : •* The fact of the zaminddri being impartible could not affect its liability for the payment of the father's debts, when it came into the hands of the son by descent from the father."
W) I. L. R. 3 Mad. 145.
(e) L. R. 2 I. A. at p. 279.
(/) 7 N. W. P. R. 261 (F. B.)
ig) 5 M. H. C. R. 150.
(^)25C.W.R.100.
164 LAW OP INHERITANCE. [bOOK I.
aL T. Sarasvatibai, (a) Mvsst. Oolab Koonwar et al, y. Th Collector of Benares et ah, (h) and the cases referred to above pp. 77-79, and under Partition, Book II.
A reasonable charge subsists to provide even for a concu- bine and her daughters (c) and her sons excluded from inheritance [d).
The son is not directly responsible for unsecured debts contracted even for the benefit of the family by his father during the life of the latter, (e) As to secured debts thos contracted during his minority, or, with his acquiescence, after his attaining his majority, the case is different. (/) Nor does it follow that because he is not directly liable to credi- tors for the family debts, he is not liable for contribution to his father, when his father has had to pay them. A dis- charge or distribution of the debts by ordinary coparceners making a partition being expressly enjoined, it might seem to follow, a /or/«ori, that a son taking his share of the family estate from his father should take also, if his father desire it, his proportion of the burdens ; but this is not prescribed by the law books. After the father's death the son is by Hindd Law responsible for all his debts, (^) except those contracted for immoral purposes, {h) and this liability, as under the
(a) 12 Bom. H. C. R. 69. (A) 4 M. I. A. 246.
(c) See Salu v. Hari, Bora. H. C. P. J. F. for 1877 p. 34 ; Khmkor v. Umidshankar, 10 Bom. H. C R. 381.
(d) Bahi v. Govind, I. L. R. 1 Bom. 97.
(e) Amrutrow v. Trimhuckrow et al,, Bom, Sel. Ca. p. 245 ; Ch^n' napah v. Chellamanah, M. S. D. A. R. 1851, p. 33 ; Col. Di. Bk. I. Ch. V. T. 167, Note.
(/) See 1 Mit. Ch. I. Sec. I. paras. 28, 29; Gangahdi^. Vamandji» 2 Bom. H. C. R. 318 (2n(i Ed. p. 301), a case of ratification.
{g) Vyav. May. Ch. V. S. 4. pi. 1M4; Stokes, H. L. B. 121, 122; Keslww Rao Biumkar v. Naro Junardhun Patunkur, 2 Borr. at p. 222.
{h) Coleb. Dig. Bk. I. Ch. V. T. 147-149, Coram. ; 2 Str. H.L.456.
INTBODUCTION.] BURDENS ON INHERITANCE. 165
Roman Law, is independent of inherited assets ; (a) though where there were assets he who has taken them is primarily answerable, (6) but this has been limited by Bombay Act VII. of 1866, Sec. 4, to the amount of the family property taken by the son. In Bengal it has been held (c) that the Mit. Chap. I., Sec. 6, para. 10 (Stokes, H. L. B. 395) authorizes the alienation by a father for the payment of joint debts^ even against the will of his son, so that the father
(a) Narasimharav v. Antdji Virupdksh et al., 2 Bom. H. C. R. 61; Co. Di. Bk. I. Gh. V. T. 173.
Kllakantha, in the Vyav. MayAkha, Ch. IV. Sec. IV. p. 17, insiBts
oa the character of an inheritance as a ** universitas" or inseparable
aggregate of rights and obligations. The latter descend only to sons
and grandsons in the absence of all property ; but he who takes any
property, however small, must pay the debts, however large. So, too,
must he who takes the widow of the deceased regarded as part of
thft " familia," eee Coleb. Dig. Bk. 1 Ch. V. T. 220, 221. Similarly
Qui semel aliqud ex parte heree extiterii deficientium partes etiam in-
vitus excipit, id est, deficieniiuni partes etiam invito adcrescunt, (L. 80
de leg. 3 D. XXXII.) was the rule of the Roman Law when it had
allowed the institution by testament of an heir replacing the heir by
descent. The whole "familia" or none had to be given to the
legatee who accepting the benefit became answerable for all debts
and for due celebration of the *' sacra privata. *' The son had no
option ; in the absence of a will he continuing the person of his father
took the inheritance, benefits and burdens as a universitas. The
English law has sprung from an entirely different conception, at
least so far as the real property is concerned. Though at one time
the heir was in a sense a universal representative, yet the distinct
character of several fees prevented their uniting in a true universitas.
The ecclesiastical jurisdiction was introduced over chattels, and the
heir then became successor only to the real property accompanied in
Bracton's time with a legal duty to pay hia father's debts to the
extent of his inheritance and a duty of humanity to pay them out
of his other property akin to the Hindu rule. See Bract. / 61 b.
{b) See Zemindar of Sivagiri v. Alwar Ayyangar, L L. R. 3 Mad. at p. 44 ; Vyav. May. Ch. \. Sec. IV. para. 17 ; Col. Di. Bk. I. Ch. V. T. 172.
(c) Bishambhur Naik v. Sudasheeb Mohapatier et at, 1 C. W. R. 96.
\
166 LAW OF INHBRITANOB. [bOOK T.
could protect himself in that way. The separated son is not legally liable to the creditors either during his father's life or after it, nnless he choose to accept the property left by his father according to the remarks of Colebrooke in the cases at 2 Str. H. L. 274, 277, 456; (a) but with this compare the dicta of the Sastris at those places, and in the case above- quoted from Bombay Sel. Cases, which correctly express the doctrine formerly prevailing at this side of India, making the son's obligation a legal and not merely a moral one. In another case (No. 997 MS.), the Sdstri answered that an adopted son, like one begotten, is responsible, independently of assets received, for the debts of the adoptive grandfather, though not incurred for the benefit of the family (they not having been contracted for an immoral purpose).
In the case of Hunooman Persaud Panday v. Musst, Rahooes Munraj Koonweree,{b) the Privy Council grounded on the son's obligation as a pious duty to pay his father's debts, a capacity in the father to charge the estate, even though ancestral, for such debts contracted by him as the son could not piously repudiate. The same case, however, as recently construed in Kameswar Pershad v. Run Bahadur Singh (c) imposes on a creditor the necessity of making due inquiry whether in the particular case the manager (even it would seem the father) is acting for the benefit of the estate, {d) In Giri' dharee Lall et al, v. Kanto Lalletal.,{e) a decree having been obtained against a father for a debt, not of an immoral kind but, as appears, not contracted for any benefit to the family, he sold the ancestral property to satisfy it. In a suit by his son to recover the estate, the High Court awarded to him one-half of his father's share, but the Privy Council reversed this decision and held that the deed of sale could not be set
(a) See also Coleb. Oblig. Ch. II., 51.
{b) 6 M. I. A. 421.
(c) I. L. E. 6 Calc. 843.
id) See Bk. II. Introd. § 6 A. ; 1 Str. H. L. 202.
(e) L. R. 1 In. A. 321, S. C, U Beng. L. R 187.
INTRODUOTION.] BURDENS ON INHKEITANCE. 167
aside at the suit of the son, '^ Hanooman Persaud^s case/'
their Lordships say, '^is an authority to show that ancestral
property^ which descends to a father, is not exempted from
liability to pay his debts, because a son is born to him.*'
SOjinOolagappa Chetty v. Arhuthnot et aL,{a) the income
of an hereditary polliam was pronounced liable for a father's
debts. The property in that case, however, was subject
to the rules of singular succession applicable generally to a
iUj. In accordance with these cases, it has, in Bombay,
been said that 'Hhese decisions go to fix the son and his
estate, except in cases of wanton extravagance, with, the
father's debt, whether secured or not on the property," (fc)
and that, " subject to certain limited exceptions (as for
instance debts contracted for an immoral or illegal purpose),
the whole of the family undivided estate would be, when in
the hands of the sons or grandsons, liable to the debts of
the father or grand-father/' (c) But this liability is
exceptional, resting on special texts. (cJ) And whether the
sale of the living father's interest binds as against his sons
the whole ancestral property, as decided in Narayanacharya
V. Narso Krishna,(e) on the authority of Giridharee v.
Kanto if) may perhaps now admit of some doubt. The case
otLuchmi Dai Koori v. Asman Sing et aL,{g) follows Giridha'^
ree v. Kanto (h) to the same eflTect ; but in the case of Run-
gaina v. Atchama et aL^ (^) the Privy Council say of a son in
(a) L. R. 1 In. A. 268.
(h) Oovindram v. Va^nanrav, R. A. No. 16 of 1874, Bom. H. C. P. J. F. for 1875, p. 118.
(c) Uddrdm v. Bdnu Pdndvjl et ah, 11 Bom. H- C. R. 83, citing Coleb. Dig. Bk. I. Ch. V. T. 167 ; cited and approved by the Judi- cial Committee in Suroj Bunsi Koer v. SJieo Proshad Singh, L. R. 6 I. A. at p. 104. SeeBXso N&rada,Pb. I. Ch. III. SI. 12 ; 1 Str. H. L. 173 ; Keshow Rao v. Naro Junardhun^ 2 Borr. 222.
(d) 11 Bom. H. C. R. 85 (sup-a), citing Coleb. Dig. Bk. I. T. 169, 229. (a) In. L. R. 1 Bom. 262. (/) Stiyra.
(g) In. L. R. 2 Calc. 213. (^) 5tipra.
(t) 4 M. I. A. at p. 103.
168 LAW OF INHERITANCE. [bOOK !•
relation to his father's distribution of property, "If Jagan- natha takes, as we think he is entitled to do, the whole ances- tral property which the father could not dispose of without his consent^ ^c.^' So in Pandurang y> Naro»(a) In Bhugwandeen Doobeyy, Myna Baee,(b) it is said, "Between undivided copar- ceners there can be no alienation by one without the consent of the other, '* and see 8uraj Bunsi Kooer^s case, {c) The High Court of Calcutta adopted this principle in the cases of Sadahart Prasad Sahu y. Foolbash Koer, (d) and of Afa/ta- beer Pershad v. Ramyad Siugh et aL, (e) which, in Baboo Deendyal Loll v. Baboo Jtigdeep Narain 8ingh^{f) have not been dissented from "as to voluntary alienations/'
Even as to a sale in execution of the " right, title, and interest'' of a father in the ancestral property, affected to be mortgaged by him " under legal necessity," as conclusively found by the District Court, their Lordships held, on tbe one hand, that the whole property would not be made available by a suit, directed against the father alone, and a sale in execution of his "right, title, and interest." To make the other co-sharers answerable, it was necessary to join them as parties according to Nugender Ghunder Ohose et al. V. 8, Kaminee Dossee et al.j(g) and Baijun Doohey et al. v. Brij Bhookun Lall.(h) On the other hand, their Lordships ruled that by the purchase of the judgment-debtor's (father's) right in execution, the purchaser had acquired his *' share and interest in the property, and is entitled to take
proceedings to have that share and interest ascertained
by partition." (i) It may seem rather too broad a statement, therefore, "that under the Mitllksharil and Mayftkha the son takes a vested interest in ancestral estate at his
(a) Sel. Rep. 186. (b) 11 M. I. A. at p. 616.
(c) L. R. 6 I. A. 88, 100, 102. (d) 3 Ben. L. R. 31 F. B. - (e) 12 Ben. L. R. 90. (/) L. R. 4 In. A. p. 247.
(g) 11 M. I. A. 241. (h) L. B. 2 In. A. 275.
(t) So in Haza Hvra v. Bhaiji Modan, &. A. No. 444 of 1874, Bom. H. C.P.J. F. for 1875, p. 97.
INTBODUCTION,] BURDENS ON INHERITANCE. 169
birth, but that interest is subject to the liability of ]that estate for the debts of his father and ^andfather/^ (a) Some inquiry would seem to be necessary, and a reasonable assur- ance of benefit to the family to warrant a lender in advanc- ing money at the father's instance on the whole family estate, (b) Subject to this the father's authority as manager is to be liberally construed, (c) and a recent ruling of the Judicial Committee makes ancestral estate assets in the hands of the heir for payment of the late owner's debts without distinction apparently of their character, (d)
It does not seem that by the HindA Law a father can> dariug his life, directly charge the ancestral estate for his purely personal debts beyond his own interest so as to make the whole immediately available to the incumbrancer. That he could deal with his own undivided share so as to give to his vendee, or mortgagee, a right to call for a partition has become the established law of Bombay and Madras — " a broad and general rule defining the right of the creditor" in the language of the Privy Council. On the father's death a DQw obligation arises as against his sons, whose fii'st duty it is to pay his debts, who are commanded to provide for their payment in making a partition, and even to alienate their own property to redeem their father from '^Put/'(e) apart from '' charges/* which could operate only on his own share during his own life, though as founded on debts they now seem to bind the whole inheritance after his decease except when they are of profligate origin to the knowledge of the creditor- In the recent case, however, of Ponnappa Pillaiv. Pappuvdyyany&r (/) it has been held {g) by the
(a) Ndrdyandcha/rya v. Narso Khrisna, I. L. R. 1 Bom. at p. 266. (6) Saravana Tevan v, Muitaya Ammal, 6 Mad. H. C. R. 371. (c) Bubdji Mahdddji v. Kriahndji Devji, I. L. R. 2 Bom. 666; Ratnam v. Govindardjtchi, I. L. R. 2 Mad. 339. See B. II. Partition. id) Muitayan Chetiar v. Sangili Vira Pandia, L. R. 9 I. A. 128. (e) N&rada, Pt. I. Ch. III. SI. 6.
(/) J. L. R. 4 Mad. 1. See too Bam Narahrg case, I. L. R 3 All. 443. ig) By a majority against luuos and Muttusami, JJ. 22h
170 # LAW OF INHERITANCE. [bOOK I.
High Court of Madras that a son^s interest even during his father's life is bound by an execution sale on a decree against the father. This decision, resting on Giridhari Lall V. Kantoo Lall and Muddun Thahoo/a cases (a) goes to make the interest of the son in a heritage altogether subor- dinate to that of the father, and to place it in all ordinary cases entirely at the father's disposal.
§ 8.— LIMITATIONS OP PROPERTY AND RES- TRAINTS ON DISPOSAL UNDER THE HINDU LAW.
The power which a HindA proprietor may exercise ia disposing of the property he owns (6) varies according to his family relations, to the way in which the property has been obtained, as it is ancestral or self-acquired, as it is im- moveable or moveable, as it supports or not a public service or object, and according also to the necessities to which the owner is subjected, and to the purposes he has in view. Thus the member of a united family can deal even with his own share only under exceptional rules. (c) The father may incumber the ancestral estate only for purposes of a respectable kind, or not distinctly the reverse; for immoral purposes it has been said that he cannot bind even his own share as against his son^s survivorship. The managing member has special powers subject to special restrictions. ((i) The son^s right is born, and unless realized by division, dies with him. The daughter, wife, and widow are subject to limitations as to the estates they can confer and the
(a) L. E. 1 I A. 321.
(6) Dev&uda Bhatta insists on that being property which in itself is capable of alienation, whether or not in any particular case it can he alienated. Smyiti Chandrika, Tr. p. 10.
(c) Lakshmishankar v. Valjnath, I. L. R. 6 Bom. 24; Vranddvan- dds Rdmdds v. Yamumibdi, 12 Bom. U. C. U. 229 ; Gangubdi Kom Shiddpd V. Ramannd bin Bhiinannd, 3 Bom. H. C. R. 66, A. 0. J. and Note; Ohamaili Knar v. Ram Prasad, I. L. R. 2 All. 267; Oangd Biaheshar v. Pirthi Pal, ih 635. See above, § 7, Introd. Burdens on Inheritance, pp. 167 — 169.
{d) Kanieshwar Pertihad v. Run Bahadur Singh, I. L. R. 6Calc. 843.
INTfiODUCnON.] LIMITATIONS OP PROPERTY. 171
control under which they act. The general right of dealing with property acquired by oneself does not extend to ances- tral estate. In the latter the birth-right of a son enables hioi; according to the law of the Mit&kshar^^ to claim partition at his own will. Again, the absolute necessities of a family may justify any member in selling so much as may be necessary to meet them, and in the case of a manager a family necessity is liberally construed, (a) The testamentary power depends on unity or severance of the family, and on the nature of the property.
The questions arising under these diflTerent heads are dealt with in the Introduction to Book II., and at other places where they occur; but it will be convenient to set forth here some of the principal powers and limitations which, according to the HindA Law, may be regarded as inseparable from the notion of property enjoyed under the law.
As to the acquisition of ownership, this, Vijn^nesvara says, is a matter of secular cognizance. (6) It arises from Occupa- tion, Finding, Purchase, Inheritance, and Partition, (c) as common to all castes and conditions. The peculiar relations of inheritance and partition as understood by the Hindft lawyers are discussed above p. Gin, and in the Introduction to Book II. Occupation or appropriation of waste lands is
(o) Bahaji Mahddtiji v. Krushndji Devji, I. L. R. 2 Bom. 666.
(b) Mit&kshar&, Ch.I. Sec. I. paras. 9, 10. There are many subtile disquisitions in the HindCl commentaries on the specially approved means of acquisition, as Gift for a Brahman, Conquest for a Kshatriya, and Grain for a Vaisya or SMra. The general result appears to be that though for sacnficial purpose the property offered should have been acquired in the authorised way, yet a mere deviation from what is specially approved does not deprive an acquisition of the character of property. The Smriti Chandrika, Tr. p. 11, seems to hold that th* enumeration given in the Smptis is rather a statement of facts of experience than a rule in itself determining the essentials ot property. See the Sarasvati Vil&sa, § 400 ss.
(c) lUdi para. 12 ; Bhdskardppd v. The Collects of TjJorth'Kdmara,, 1. L. R. 3 Bom, at p. 524.
172 LAW OP INHERITANCE. '[^^^^ ^•
regarded as a natural rights (a) but as one concnrrent with a right in the sovereign to a rate or tax on the produce. (6) Hence naturally possession is the strongest proof, (c) The strength of the ownership thus attested is such that the rule has sometimes been recognized that the occupying owner of a field who has absconded may at any time return and recover it on terms equitable to the intermediate occupants (c{) as his ownership cannot be really destroyed without his distinct assent, (e) that for the same reason execution for debt against a man^s land is a notion foreign to the pure HiDdii
(a) See Viramit. Ch. I. Sec. 13; Snifiti Chandrika, Tr.p. 11; Comp. Imp. Gaz. vol. VII. p. 520 ; Bhaskardppd v. The Collectoi- of Norih Kdnard, I L. R. 3 Bom. at p. 548, 563, Ac. ; Vyakunta BapujtY. Go- v&i-mnefit of Bombay, 12 B. H. C. R.*App. 30 ss.; Comp. Panj. Oust- Law. vol. II. p. 21, 254, which shows in how many various ways, as between individuals, a proprietary right may be acquired in land not completely appropriated.
(6) Ibid., and Col. Dig. Bk. II. Ch. II. T. 12, Comm. ; T. 17, T. 22, Comm. ; T. 24, Comm.; Vdsudev Saddshiv Modak v. Colledorof Eat- nagiri, L. R. 4 1. A. at p. 125.
(c) Vyav. May. Ch. II. Sec. II. Ch. IV. Sec 1, para. 8 ; comp. Col. Dig. Bk. II. Ch. II. T. 10, Comm.; T. 12, Comm ; Steele, L. C. 207; Vishvandth v. Mahdddji, I. L. R. 3 Bom. 147. The cultivator is re- garded as bound to maintain thelandhe holds in cultivable condition.— Manu VIII. 243, a duty which is recognized by the Mahomedan law also, and by other systems.
(d) Mit4k. in Macn. H. L. 202, 206, 207 ; BJidekardppa v. The CoUedor of North Kdnard, 1. L. R. 3 Bom. at 525-6. See N&rada II. XI. 23 ss; Fiarey Lall v. Saliga, I. L. B. 2 All. 394 ; Harbhaj v. Gumani, ib. 493 ; and comp. Joti Bhitnrav v. Bdlu Bin Bdpuji, I. L. R. 1 Bom. 208 ; ib. cases referred to at p. 94 ; Co. Dig. Bk. II. Ch. II. T. 24 Comm. sub fin; Tod*8 Eijasthan, vol I. p. 526; M. E. Elphinstone in Rev. and Jud. Sel. vol. IV. p. 161 ; General Briggs, ib. p. 694.
(e) Parbhudds Edyaji v. Motirdm Kalydndda, I. L. R. 1 Bom. 207; Co. Dig. Bk. II. Ch. II. T. 27, Comm. ; T. 28, Comm. ; T. 27, Comm. The consequences of this on the law of partition are traced in Bk. II. Introd. § 5 B and notes. In the latter references will be found to the rights of communities as still in some places asserted, and to the formerly inalienable character of the patrimony. See Mr. Chaplin'8 Report, Rev. and Jud. Sel. vol. IV. pp. 474-477,
INTRODUCTION.] LIMITATIONS OP PROPEBTY. 173
law, (a) that a royal gift of occupied land is construed to mean only a gift of the revenue, {b) and that even a conqueror acquires only the rights of the vanquished ruler. The property in the land is thus rather allodial than feodal. Tenure in the English sense hardly exists (c) except in the case of estates granted by the sovereign for the support of particular services to the State, or for the furtherance of purposes recognized as beneficial to the community. Jahfigirs for military service come the nearest in character to feudal holdings of the earlier type, the terminable beneficia which were succeeded by hereditary estates held by homage and military service, (d) They are usually grants of the revenues of a district as a means of supporting a body of troops, and are resumable at the pleasure of the sovereigpn power, (e) From their nature they are impartible, and so, too, are saranjams granted either for life or hereditarily for services rendered or for maintaining the dignity of a family. (/) Vatans granted for the support of local heredi- tary ofiBces are subject in a measure to disposal by the State. Subject to the support of the office-holder, they are usually partible and alienable amongst the group of co-sharers, but cannot be sold to strangers or burdened for more than the
(a) Col. Dig. Bk. II. Ch. II. T. 28, Comm. ; T. 24, Comm.; comp Hunter's Roman Law, p. 807.
{b) Vyav. May. Ch. IV. Sec. I. para. 8; comp. Co. Di. Bk. II. Ch. 11. T. 10, Comm.; T. 12, Comm.; Steele, L. C. 207 ; Vishvandth v. Mahddaji; I. L. R. 3 Bom. 147.
(c) Comp. Bom. Acts 11. and VII. of 1863.
(d) See Hallam, Mid. Ages, Ch. II. Note IX ; Freeman, Hist, of Norm. Conquest, vol. V. pp. 132, 379 ; Maine, Anc. Law, Ch. VII. pp. 230, 233 (3rd Ed.) ; Munro by Arbuthnot, vol. I. pp. 152, 154 ; vol. U. 307 ; Rajah Nilmoni Singh v. Bakranath Singh, L. R. 9 I. A. at p. 122; Imperial Oazetteer of India, vol. VII. p. 619.
(e) Bom. Reg. XVII. of 1827 § 38.
(/)8ee RdmchaMdra Sakhdram Vdgh v. Sakha/ram Oopal Vdgh, I. L. R. 2 Bom. 346 ; Bom. Govt. Selections No. XXXI. paetfim ; Bom. Act. VII. of 1863 § 2; Act. II of 1863 1.
174 LAW OF INHERITANCE. [ BOOK I.
life of a sharer as to his own share. The appropriation of these estates to the public service is now secured and the competence of individual sharers is strictly limited by statute, (a)
They probably in many cases originated in an exemption, or a partial exemption, from the Government assessed land- tax of lands held as private property ; but to these were generally added various haks or dues now abolished, (b) Lands held for various other public services, such as the jyotishi vatans of astrologers, and in general all religious endowments (c) are subject to restrictions as to the estates held in them, (d) and the conditions or accompanying obligations with which they are held by the successive
(a) iSee Index Tit. Vatan; Bom. Act. III. of 1874. (6) See Steele, L. C. 204 ss.
(c) The proportion of the land and of the public revenues dedicated to religious services is in some districts very considerable. It would have been much greater bat for the indifference with which succes- sive rulers resumed their predecessors' grants {see Sir. T. Munro's Minutes, vol. I. p. 136 ss.), and the encroachments which, very often by collusion with the mohants or trustees of the dewasthdns, were made upon the sacred estates and secured by prescription or an actual failure of evidence after a longer or shorter time {see Steele, L. C. 206). The large number of ancient grants for religions purposes which are from time to time discovered, show that the greater part of the land must thus have been placed extra commercium, but for the negligence and the revolutions by which the dedicated estates were restored to common use. The Peshwa used, like the kings of England, some- times to resume religious endowments while he made up his mind who was best entitled to take them (ibid.), but an avowed resumption of such property was virtually unknown. {TJie Collector of ThanM v* Ham Sitdrdm, Bom. H. C. P. J. F. for 1882, p. 206 ; I. L. R. 6 Bo. M6.)
(d) These interests and all sources of a periodical income ("ni- bandh") are looked on by the Hindtl law as of the character of immoveable property. See Col. Dig. Bk. II. Oh. IV. T. 27 Comm.; Y&jn. II. 122 ; Mit. Ch. I. Sec. V. para. 3, 4 ; VUhal Krishna Joshi v. Anant Bdmchundra, 11 Bom. H. 0. R. 6 ; Divdkar VUhal v. Harbhai, Bom. H. C. P. J. F. for 1881, p. 106.
INTEODUOTION.] LIMITATIONS OP PROPERTr. 175
tenants which give them a special character, (a) The en- forcement of the public duties in these cases was formerly secQred by forfeiture, in the necessary cases, of the exemption from assessment) (&) but in the case of charitable endow- ments the ownership of the property itself was still recog- nized, and an opportunity was allowed to those interested to avoid the forfeiture (i. e. the imposition of the assessment) by a suit to compel performance of the duty. In the Bombay Presidency charitable endowments are now in an anoma- loos position. They are mostly of a religious or quasi religious kind, and the Government has withdrawn from all connection with religious endowments, (c) while the provi- sions for the security of the property extend in Bombay only to the district of Canard, {d) In the southern part of the Presidency it is expressly provided that charitable endowments held free from land-tax shall be inalienable, (e) Elsewhere, and as to all property not included in the provision, the statutable safeguard is wanting; but the generally inalienable character of endowments under the Hindu as under the Mahomedan law is recognized by the Courts. (/)
The sharers in Bhagdari and Narwaddri villages are subject to special restrictions in dealing with their shares, of which custom, now ratified by statute, (g) forbids the
(a) See Ukoor Boss v. Chutider Sekhur Doss, 3 C. W. R. 162; Prosunno Koomari Debya v. Qolah Chand Bdboo^ L. R. 2 I. A. 146; Mrayan v. Chintdman, I. L. R. 5 Bom. 393.
(6) Bom. Reg. XVII. of 1827 § 38.
(c) Act. XX. of 1863 § 22.
(d) Bom. Act. VII. of 1865.
(c) Bom. Act. II. of 1863 § 8; Bhilcdji Mahddev v. Bdbushd, Bom. H.C.P. J. F. forl877,p. 297.
(/) Khusdlchund v. Mahddevgiri, 12 B. H. C R. 214; Ndrdyan v. Chmtdman, I. L. R. 5 Bom. 393 ; The Collector of Thanna v. Hari Sitdrdm, Bom. H. C. P. J. F. for 1882. p. 207. The Indian Trusts Act II. of 1882, § 1, does not apply to Bombay, nor does it anywhere affect charities.
(</) Bom. Act V. of 1862.
176 LAW OF INHEEITANCE. [bOOK I.
division. In these estates, too, there are special laws of succession ranking originally perhaps as rules of a family or a class as such* Where their prevalence is proved eflfect is given to them as customary law. (a) The exclusion of a daughter from succession may probably have originated in the fear that the share would in such a case through her marriage pass to heirs who were strangers to the " bhauband^' or fraternity {b) constituting the village community, and jointly and severally responsible for the contribution of their village to the land-tax. Mirasdars were at one time, it would seem, subject to restrictions in favour of the village community, (c) They could reclaim their lands in theory after any lapse of time, (d) This was inconsistent with the laws of limitation and even with the prescription recognized by the Hindi law. (e) The joint
(a) Prdnjivan Bay Mm v. Bdi Revd, I. L. R. 5 Bom. 482.
In the Panj&b there are many instances of restrictions imposed ia the interest of the clan or group of co-proprietors descended from the original band of occupants of the waste, or conquerors of land already occupied, who held part in common and distributed the rest something after the fashion of the Corinthian Greomori in dealing with the territory of Syracuse. See the work quoted below.
(b) In the Panjdb women as they marry persons not members of the village community do not transmit a right to the village lands, which are thus preserved to the community. See Tupper, Panj- Cust. Law, vol. II. 58, 145, 175,177. The prevention of similar mis- chiefs engaged the care of most ancient legislators or of the commu- nities whose customs they embodied. See Numbers, Ch. XXVII. XXXYI. The Athenian law compelled the nearest male relation to marry the female epikleros, taking the estate with her. Isacns III' 64, Sir W. Jones' Works, vol. IX. p. 103; Smith's Die. Antiq. svi voce, Comp. Euth, Ch. IV.
(c) See on mirds generally, Steele, L. C. 207; Mr. Chaplin's Bep. para. 114 ss. ; Rev. Sel. vol. IV. ; Madras Mir&si papers ; Vyakunfha Bdpuji V. Oovemment of Bombay, 12 Bom. H. C. E. App. 68 ss.
(d) Vydkwntha Bdp^iji v. Government of Bombay ^ 12 Bom. H. C. B. App. 50.
(e) See Babdji and Ndndji v. Ndrdyan, I. L. E. 3 Bom. 340; Ta/rdchand Pirchand v. Lakehman Bhavdni, I. L. R. 1 Bom. 91, and the cases referred to at p. 94.
LVTBODUCrriON.] LIMITATIONS OP PROPERTY. 177
mirasi village community had generally broken up even nnder the native rule, and the mir^sdar is, through the elevation of the class once below him, distinguishable only on Inam estates as a tenant at a quit rent or at a reasonable rent, (a) not subject to ejectment so long as he pays it.
Other special customs might be referred to, (b) but these not forming a part of the general HindA law of the Bombay Presidency cannot be here treated in such detail as would be useful. We proceed to the remarks on the capacity of the owner to deal with his property apart from special circumstances which are of general application.
It is not competent to those interested in an estate to alter the course of devolution by any mutual arrange- ment, (c) Ipso jure herea exsistit {d) and an agreement which attempts to establish a new line of descent unknown to the law is inoperative, (e) So far as their own interests are concerned, the parties who share the ownership may generally deal with them at their pleasure, — even to parting with the whole or subjecting their enjoyment to any burdens consistent with public policy. (/) This rests on the recog- nition by the State of individual freedom in dealing with property, while the freedom is coupled with a present inter- wt, and a capacity for varying the management according to
(o) Praid^prdv Chijar v. Baydji Ndmdji, I. L. R. 3 Bom. 141. The miiisi holdings may be compared with the customary tenancies of the North of England ; see Bttrrell v. Dodd, 3 Bo. and P. 378.
(6) As in Bhdu Ndndji v. Sundrdbdi, 11 Bom. H. C. R. 249, and the cases there referred to.
(c) Myna Boyee v. Ootdrdm, 8 M. I. A. at p. 420 ; Bdlkrishia Trim- hak V. Sdvitribdi, I. L. R. 3 Bom. 54.
{d) Comp. Maine's Anc. Law, Ch. VI. p. 188. (3rd Ed.)
(6) Bajender Dutt v. Sham Ghund Mitter, I. L. R. 6 Calc. at p. 115. Comp. Clark, Early Rom. Law, pp. 117 BS.
(/) But only such. Thus an agreement by which an adopted son i^eeigned the bulk of the family property to his adoptive mother was pronoonced void. Q. 16 MS. 23h
178 LAW OP INHERITANCE. [boOK I.
circnmstances. (a) Bat when these conditions fail it is only to a limited and prescribed extent that the State allows him who is no longer able personally to exercise the power of appro- priation and use of the property to impose terms on its enjoyment by others, (b) Thus by will the owner may make such dispositions only as the law (c) allows as consis- tent with the general welfare, {d) The Hindft law does not tolerate the abeyance of an estate, (e) It prescribes a certain mode of devolution, and from him in whom unqualified proprietary right has once become vested, it must, in the absence of a will made by him, not by a predecessor, devolve in that way.(/) The owner may make a gift or a will which, as to property fully at his disposal (^), will operate according to the analogy of the law of gifts, but having thus created rights in the beneficiaries, he cannot, except subject to strict limitations, cut down those rights by further dispositions, (h) The immediate beneficiary may be
(a) See Col. Di. Bk. II. Ch. II. T. 12, Comm. ; T. 24, Comm.
(6) "Quatenus juris ratio patitur." The general subordination of private property and its disposal to the discretion of the sovereign nnder whose protection it is enjoyed is insisted on by Jagannfitha in Col. Di. Bk. II. Cb. IV. T. 16, Comm. Comp. Laboulaye, Hist, du Droit de Propri^t^ Fonci^re, p. 62.
(c) Including the custom of his province, caste or class. See Co. Di. Bk. V. Ch. V. T. 365.
(d) Kumara Asima Krishna Deb v. Kumara Kumar Krishna Debf 2 Beng. L. R. 11 O. C. J.
(e) Nilcomul Lahuri v. Jotendro Mohun LahuH, I. L. R. 7 Gale. 178. (/) "A man cannot create a new form of estate or alter the line
of succession allowed by law for the purpose of carrying out his own wishes or views of policy," per Turner, L. J., in Soorjimony Dossee V. Deenobundo MuUick, 6 M. I. A. at p. 656. A mahant has no power to say who shall succeed his own successor, Ch'eedharee Doss v. NuncUcishore Dutt, 1 Marsh. 573; S. 0. 11 M. I. A. 405.
ig) See Lakshman v. Rdmchandra, I. L. R. 5 Bom. 49 ; Harihhat v. Ddmodarbhat, I. L. R. 3 Bom. 171.
(h) Mdccundds v. Oanpatrdo, Perry's Or. Cases, 143 ; see Afmaniha Ttrtha Chariar v. Ndgamuthu Ambalagaren, I. L. R. 4 Mad. 200; Mokoondo Lai Shaw v. Qanesh Ohunder Shaw, I. L. R. 1 Cal. 104.
ISTEODUCTION.] LIMITATIONS OP PEOPEBTY. l79
limited to a life-interest if the remainder is given to a per- son in existence at the time of the gift ; and a will speaks at the death of the testator, but as by the HiudA law there most be some one in existence to take a gift (a) as well as to bestow it, a bounty to persons unborn or who may be bom or unborn according to circumstances cannot take effect. (6) An attempt to provide for unborn grand-children of the donor by a gift for their benefit to a son-in-law was declared by the Sdstri to be void on account of the partial reserve of the ownership which this involved. ( c)
There is an exception in the case of public grants (d) of the nature of jah&girs (e) or of watans for the support of a family or to maintain a public oflSce, (f) but not one extending the power of private disposal. To these grants effect must
(fl) Comp. the Transfer of Property Act IV. of 1882, Sees. 122, 129. A distinct change of physical possession, though genarally necessary (iee below, Bk II., Introd., Signs of Separation) is dispensed with in the case of a wife or an infant or other wholly dependent person who is obTiouslj benefited, under circumstances in case of an absent person,and where the exercise of the right does not consist in or require posses- sion. 2 Str. H. L. 26; ib, 7, 427; Laluhhdi Surchand v. Bdi Amrit, I. L. R. 2 Bom. 299, 326 ; B&i Suroj v. Dalpairdm Dayashankar, I. L, R. 6 Bom. 380, 387. In Bengal, it is said, in Narahi Chunder Chuck' erbutiy v. Baiaram Boy, I. L. R. 8 Calc. at p. 611, that delivery of possession is not "necessary to give full validity and effect to a transfer for valuable consideration.'* Under the Transf. of Prop. Act rV. of 1882, Sec. 54, the mere concurrence of the will of the con- tracting parties does not create an interest in the property intended to be sold unless it is manifested by a registered instrument or in petty cases by a change of possession.
(h) See Soorjee Mony Dossee v. Deenbundo Mullick, 9 M. I. A. 123 ; Tagore v. Tagore, L. R. S. I. A. at pp. 67, 70, 74 ; Rajmdar DuU v. Sham Chunder Mitter, I. L. R. 6 Calc. 116.
(c) See Book I. Ch. II. Sec. 7, Q. 17.
(d) As to jurisdiction in such cases, see Act 23 of 1871 and Maharao- UlMohansingji Jeyaingji v. The Government of Bombay, L. R. 8 1. A. 77.
(e) As to these, see Rdmchandrardo Ndrayan Maniri v. Venkatrdo Madhava Maniri, Bom. H. C. P. J. F. 1882, p. 234, and the caset cited there.
(/) See now Act 23 of 1871, Bo. Act. ni. of 1874.
180 LAW OF INHERITANCE. [bOOK I.
be giv^^ according to the intention of the Sovereign power in making the grants which itself may make the estate im- partible (a) and determine the mode of devolntion.(6)
The same principle has been applied to a village astrologer or priest, and even to cases of private estates where the original grant was, or mnst be presumed to have been, made for the support of an hereditary line of performers of reli- gious functions for which such succession was necessary or at least proper. The decision against a dealing by the oflBciating holder of a purohitta in 2 Str. H. L. 12, 13, and similar cases may be referred to this principle.
To ordinary private grants free from a sacred or public conqexion a different rule applies; (c) they can operate only within the lines prescribed by the general law, as Govern- ment grants also do in the absence of special limitations expressed or implied in the nature of the grant, (d) This applies to a Toda Girds hak as distinguished from a pen- sion, (e) as to all ordinary InS,ms. (/)
It is thus, apparently, that we must understand and apply the decision of the Judicial Committee in Surjeemonee Dossee's case, (g) A Hindfl may by settlement or by will dispose
(a) See B4jd Leldnund Sing Bahddoor v. The Bengal GovemmenU 6 M. I. A. at p. 126.
(6) See Rdmchandrardo Ndrdyan Mantri v. Venkairdo Md^una Maniri, Bom. H. C. P. J. F. 1882 at p. 283 ; Guldbdda Jagfivandds v. The Collector of Surat, L. R. 6 I. A. 64; Rdjd Nilmony Singa t. Bakranath Sing, decided by the P. C. on 10th March 1882; Ellis in 2 Str. H. L. 364, 366. Comp. Maine's Anc. Law, p. 230.
(c) Guldbdds Jagjivandds v. The Collector of Swaty L. R. 6 1. A. a* p62.
(d) 1 Str. H. L. 209, 210 ; Rdmchandra Sakhdrdm Vdghv. Sakhardm Gopdl Vdgh, I. L. R. 2 Bom. 346.
(e) Ganeehgiri Gosdvi v. Baba bin Ramapa Ndik, Bom. H. C P J- F. for 1881, p. 96.
(/) See bolow, Bk. I. Ch. II. Sec. 6 A, Q. 8; Steele, L. C. 206.
(g) 9 M. I. A. 123; see Bhoobun Mohini Debya v. Hunish Chun- der Ghowdhry, L. R. 6 I. A. 138 ; Rdm Lai Mookerjee v. Semtary of State for India, L. R. 8 I. A. at p. 61.
INTBODUCTIOK.] LIMITATIONS OF PROPERTY. 181
of ''self-acquired property by way of remainder or executory devise upon an event which is to happen at the close of a life in being/^ (a) and for the Bombay Presidency the power of a Hindft to make a testamentary disposition of whatever is his absolute property is now clearly established. (6) So also in the North-West Provinces under the Mitakshar^ (c) and in Madras. ((Z) But the nature and extent of the power are not to be ''governed by any analogy to the law of England/' (e) "The law of wills has grown up from a law which fur- nishes no analogy but that of gifts, (/) and it is the duty of tribunals dealing with a case new in the instance to be governed by the established principles and analogies that have prevailed in like cases." (g) Hence it was that in the Tagore case " the final decision, speaking generally, was that the limitation in tail and the subsequent limitations were contrary to the HindA law, and void, and that upon the expiration of the first life-interest, the appellant, the tes- tator's only son, was entitled as heir to the estate.''(A) The allowance of wills was not really opposed to the principles
ia) Supra. The executory devise is itself limited according to the principles laid down in the Tagore case, see L. E. S. I. A. pp. 70, 7-2, 76.
(b) Bhagvdn Dulabh v. Kdld Shankar, I. L. R. 1 Bom. 641 ; Lasksh- tiifcdi V. Gunpat Morohd, 6 Bom. H. C. R. 135, 138, 139 0. C. J.; Bahoo Beer Pertah Sahee v. Malutrajah Bojender Peiiab Sahee, 12 M. I. A. 1,37.
(c) Nana NuraiJi Rao v. Euree Panth Bhao, 9 M. I. A. 96 ; Adjoo- ^ia Gir v. KasJiee Oir, 4 N. W. P. H. C. R. 31.
(d) Nagalutchmee JJmmal v. Gopoo Nadaraja Cheiiy, 6 M. I. A. 309 ; Colebrooke in 2 Str. H. L. 436 ss.
(e) Mt Bhoobun Moyee Bebia v. Ram Kishore Acharj Chowdhry, 10 M. 1. A. 279 ; per Turner, L. J., in Sonatun Bysack v. iSreemutty ^ugguUoondree Dossee, 8 M. I. A. at p. 85.
(/) 2 Str. H. L. he. ciL (g) Tagore case, L. R. S. I. A. at p. 68.
(M Ganendro Mohun Tagore y. Rajah Juttendro Mohun Tago^'e, li. B. 1 1. A. at p. 392.
182 LAW OP INHERITANCE. [bOOK I.
of the HindA law as will be shown hereafter, (a) It was merely a development of the principles already recognized, quite analogous to that which the English law of devise has undergone in the course of three centuries; but the HindA law requiring a disposition to be in favour of some definite object existing when it is declared, many arrange- ments possible under the English law cannot be made.
In Shoshi Shikhuressur Roy v. Tarokessur Roy {b) it was held that a gift is bad in so far as it is limited to male descendants. The language used in that case relating to the gift over to the testator's surviving nephew or nephews was, however, deemed not inconsistent with an intention of the testator that the whole augmented share should pass to the plaintiff, the surviving nephew. This effect was given to it, but having regard to the doctrine frequently acted upon by courts in India, it was held he was only entitled to a life-estate.
As the law of wills follows the law of gifts, though with some differences, (c) it will be understood that a grant in favour, partly, of persons not in existence at the time of execution so far fails (d) with the estates dependent on it. When it is said *' that a man cannot by gift inter vivos or by will give property absolutely to another, and yet control his mode of enjoyment in respect of partition or otherwise,^' {e)
(a) See below on the Testamentary Power.
(b) I. L. E. 6 Calc. 421.
(c) Kherode Money Dossee v. Doorga Money Dossee, I. L. R. 4 Calc at p. 472 ; Lahshman Dadd Ndik v. Rdmchandra Dddd Ndikf I. L. B. 6 Bom. 48 ; Tarachand v. Reeb Bam, 3 Mad. H. C. R. at p. 55.
{d) Soudaminey Dossee v. Jogesh Chunder DiUt, I. L. R. 2 Calc. 262; Kherodemmiey Dossee v. Doorgamoney Dossee, I. L. R. 4 Calc. 455; Rajender Dutt v. Sham Chund MUter, I. L. R. 6 Calc. at p. 116 ; Sir Mangaldas Nathubhoy v. Krtshndbdi, I. L. R. 6 Bom. 38.
(c) Bajender Dutt v. Shamchund Mitter, I. L. R. 6 Calc. at p. H^- See also Ananiha Tirtha Chariar v. Ndgamuthu AmhaJagaren, 1. L. R- 4 Mad. 200; Ashutosh Dutt v. Doorga Chum Chaiterjee, L. R. 6 I. A. 182.
INTRODUCTION.] LIMITATIONS OF PROPEETY. 183
what is meant is that such estates and interests and such only as the law recognizes can be conferred or created, (a) No one really intends to give an estate which shsdl at the same time be "'absolute'^ and conditional or limited : what people try to do is to mould the interests they dispose of in ways unknown to the law, or which the law to which they are subject does not allow. " Great detriment would arise and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property/^ (6) The complication of rights that arises even under any existing system with its defined and limited interests is enough to show that an unlimited power of variation would lead to unlimited litigation and make land almost unmarket- able; and this conviction arrived at by the rulers would of itself justify them according to the Hindii law in prescribing the necessary restraints (c) and refusing to give legal effect to any transaction not falling within the recognized limits. But as the law thus gives effect to only a certain range of intentions (d) the instruments creating rights, or having this for their purpose, are construed, if they can be reasonably construed, so as to express something which the law will carry out. (e) Thus where a grant to a sister con- tained the words " no other heirs of yours (than lineal de- scendants) shall have any right or interest,'' which it was said went to create an estate tail in the descendants contrary to the Hindil law, the grant was construed as one of the whole interest in the property subject to defeasance should the
(a) See per Willes, J., in the Tagore case, L. R. S. I. A. at p. 65.
{b) Per Lord Brougham in Keppell v. Bailey, 2 Myl. and K. 517.
(c) See N&rada, quoted Macn. H. L. 152 ; and Col. Dig. Bk. III. Ch. n. T. 28.
{d) Tagore case, L. R. S. I. A. at p. 64. Domat'sC. L. Sec. 2413.
(e) See Sreemutiy Rabuth/ Doasee v. Sihchvnder Mullick, 6 M. I. A. 1; Sreemutty Soorjeemony Doseee v. JDenohimdo Mullick, ib. a.t p. 550 ; ^haJeehunMoostuffy v. Taramonee Voesee, 12 M. I. A. 380; Biwobun Mohini Debya v. Eurrish Chunder Chowdhry, L. R. 5 I. A. at p. 147.
184 LAW OF INHERITANCE. [fiOOK I.
grantee die without children, (a) Where a Hindu widow in Bengal takes her husband's share by arrangement with his brethren, the instrument will be construed with reference to the Hind A law in order to determine the estate she has obtained, (b) but in the case of Musst. BhagbiUty Dcwe v, Chowdry Bholanath ThaJcoor (c) the Judicial Committee construed a will as a family settlement, completed by a document executed by an adopted son, whereby the widow became entitled to use as she pleased and invest as she pleased, as her separate property all that she derived from the estate given to her for life.
The Courts refuse effect to an intended perpetuity in favour of mere private persons even though it is disguised as a religious endowment, (d) It is only in such a form
(a) Bhoohun Mohini Debya v, HurrisJi Chunder Chowdhry, L. R. 61. A. 138. See K^'ishnardv Qaiiesh v. BangrdVf 4 Bo. H. C R. 1 A. C. J.; and Bahirji Tannaji v. Oodainng et al.. Bo. H. C. P. J. F. 1872, No. 33 ; Rajah Nursing Deb v, Roy KoylasncUh, 9 M. I. A. 65.
In the case of a grant to a Nddg4vd& (a headman of a district) by Tippu Sult&n, it was contended that the expression **aul6d aflad" in the Persian implied and necessitated a descent different from what the Hindu law prescribed in a family subject to a rule of impartibi- lity. It was ruled, however, that the words might be construed as meaning " hereditary not merely personal," and it was said " the precise devolution of the estate would nevertheless be governed by the law to which the grantee was subject so far as this was consistent with keeping the estate together so as to afford a means of support to the oflBce to which it was attached." Timangdvdd v. RangangdvdOt Bom. H. 0. P. J. F. 1878 p. 240, at p. 242. Comp. Bam Lai Mooherjee V. Secretary of State for India, L. R. 8 I. A. at pp. 61-62yBajah Venkata Narasimha Appa Rao v. Raja Narayya Appa Row, L. R. 7 1. A. pp. 38, 48, 49 ; and as to the preservation of the estate for the intended purpose, see Baja Nilmoney Sing v. Bakranaih Sing, L. R. 9 I. A. 104.
(6) Sreemutty Rabutty Dossee v. Sibchunder Mvllick, 6 M. I- A. 1-
(c) L. R. 2 I. A. 266.
(d) Shookmoy Chunder Doss v. 3fono^ri Dassi, I. L. R. 7 Calc. 269. See Kumar a Aaima Krishna Deb v. Kumara Kumara KrithM Bel, 2 Beng. L. R. 11 0. C J.
INTRODUCTION.] LIMITATIONS OF PROPERTY. 185
perhaps that a perpetoity could be devised, as the creation of a right can be only in favour of a person in existence at the time of the declaration. (d) An idol does not expire, and the emolaments of its service may be limited to a family. (6)
(o) Tagare case, supre^
(h) See below. The ideal personality of tire idol is recognized ia many cases, as in Kondo v. Bahajl, PrintedJadgments for 1881, p. 337» and Juggodti/mba Dossee v. Piiddomoney Dossee, 15 Ben. L. R. 318. Under the Boman law the res sacrae in the higher sense were dedicated to the public divinities, and this dedication required the concarrence of the public authority. When Christianity became the religion of the Empire the same principle was recognized, though die object of the dedication was changed, and it found its way into England as into other countries with an omission in great part of tho condition of the assent of the sovereign authority, until at a later time the laws of mortmain reasserted the interest of the State in its territory. The sense of the dominant interest of the sovereign makes itself manifest even amongst the pious Hind(!ls in N&rada's rnlet that "whoever gives his property away {i e. makes a religious dedication, as gifts for merely secular purposes were discountenanced) most have a special permission to do so from the king. This is an eternal law" (N4r. Transl. p. 115). See Vyav. May. Ch. IV. Sec. VII. para. 23. Besides the higher res sacrae the Romans had the res tacrae of each family descending as an integral part of its estate. These disappeared with the growth of Christianity, but traces of them are to be found stilL In India these sacrae privatae are still intimately connected with the heritage. No legal restriction has been placed on the dedication of property to either public or private religious purposes ; but in the latter case, though irot in the former, the consensus of the whole family may annul the dedication. Per Sir M. B. Smith in Koonwar Doorganath Roy v. Ra)nc}iunder Sen, Ij- R. 4 I. A. at p. 58, and see Rajendranath Bait v. Shekh Mahomed ■W, L. R. 8 1. A. lSb;Jaggut Moliini Dossee v. Mt. Sokheemoney Dossee, 14f M. 1. A. at p 302 ; see also Maharanee Brojosoondery Debea t. Ranee Luchmee Koonwaree, 20 C. W. R. 95 ; Subharaya Gdrnkal v. CheUappa Mudali, I. L. R. 4 Mad. 315 ; Venkatehoara lyan v. Shekhari Varma, L, R. 8 I. A. at p. 149 ; Khusafchand v. MdUd^^giH, 12 B. H. C R. 214 ; Manohar Oanesh v. Keshavram Jehhah Bom. H- C P. J. 1878 p. 252 ; Bhadphale v. Qurav, I. L. R. 6 Bom. 122. That a stranger, though a Brahman, cannot be intruded as the celebrant of private ceremonies, see Ukoor Doss v. Chunder Sekhur Doss, 3 C W. R. 152. The inalienable 24h
186 LAW OP INHERITANCE. [BOOK I.
According to the Viramitrodaya (a) a conditional gift is invalid (as under the Mitakshar^ law). The instance addaced might be construed as one of conditional defeasance. It is that of ornaments bestowed on a woman subject to a condi- tion against using them except at particular festivals. A gift so conditioned, Mitramisra says, is void, but it seems rather that the gift is complete but subject to a con- ditional defeasance (h) or else that the condition or condi- tional revocation is void. It is a recognized principle that a mere licence, however liberal, to a woman and to her exclusively,^ to use ornaments on particular occasions (c) and on those only, does not constitute a gift.(d) The ownership remains with the husband or other licensor and forms part of the property to be divided in a partition, (e) A con- ditional gift is not as such reckoned amongst those which are essentially void by Narada.(/) The word upadhi, which Mitramisra construes as" condition,^^ usually implies fraud,((7) and every gift, it would seem, is by the strict Hindft law
character of land consecrated to religious purposes has been generally recognized under the Roman, Christian, and Mahomedan systems as well as by the HindA law, and under all has sometimes been felt as an embarrassment ; see Ortolan Inst. v. II. p. 230 ss ; Bowyer, Civ. Law, p. 69 ; Spelman De non Tern. Eccles. Ch. VI. Ham. Hed. B. XV. As to the respect duo to sacred property under different circumstances ste Grotius, De Jur. B. et. P. Lib. III. Cap. V. § II, compared with Vyav. May. Ch. IV. Sec. I. para. 8.
(a) Transl. p. 221.
(b) Comp. the Transf. of Prop. Act, IV. of 1882, Sec. 126.
(c) Vishnu VII. 22.
id) Kurnaram Dayaram v. Hinibhay Vtrbhan, Bom. H. C. P. J- P- 1879, p. 8. See below on Stridhana. Under the English law a gift by a husband to his wife of ornaments makes thorn part of her parapher- nalia, of which she cannot dispose without his assent during his life- Sec Graham v. Lo)idi»idemj, 3 Atk. 394.
(e) Lifra, Bk. II. Introd. § :. B. ad fin, ; Vyav. May. Ch. IV. Sec. VII. para. 22; 2 Str. H. L. 424, 370.
(/) Transl. p. 59; Vyav. May. Ch. IX. 6. Comp. Lachmi Nmin V. Wilayfi Brgam, I. L. R. 2 All. 4:33.
{y) Sc Col Dig. Bk. II. Ch. IV. Sec. II. T. 54, Comm.
LVTBODUCTION.] LIMITATIONS OF PROPERTY. 187
accompanied by a tacit condition of revocation if the intended purpose be not fulfilled, (a) Begard being had, then, to the principle that a decision in such cases must be governed by the reason of the law, (b) it seems that a condition subsequent does not invalidate a gift, though a condition precedent may do so through preventing any present change of owner- ship or of possession as owner, (c) while a condition sub- sequent which is repugnant to the estate granted, as recognized by the law, is to be deemed void, {d) Now
(a) N&rada, Transl. p. 60 ; Col. Di. Bk. II. Ch. IV. T. 53, 56, Comm.; Manu VIII. 212. {b) Col. Dig. Bk. II. Ch. IV. T. 28, Comm. sub fin.
(c) See Book I. Ch. II. § 7, Q. 17.
(d) Under the Roman law there were transactions which did not admit of a condition or a term annexed to the generation of the proposed legal relation, see Maine's Anc. Law.Ch. VI. p. 206 (3rd ed.), Goud. Pand. 155, and the chief expressions of will as in marriage, divorce, adoption and partition repel as incongruous the suspensive effect of a postponement of the completion of the intended purpose which leaves the most weighty interests in uncertainty, and clogs intermediate acts of daily necessity with paralysing doubt. The principle, though not precisely formulated, is one which operates in the English law in cases not left to the unfettered volition of the parties. It extends even to the acceptance of a bill of exchange [see Act 26 of 1881, Sees. 86, 91). Here the promise is absolute, the right immediate, thongh the fulfilment is deferred.
That a condition subsequent could not be annexed to marriage was held in Seetaram alias Kerra Herra v. Musst. Ah'n'oe Hee^-anee, 20 C. W. R. 49 C. R. Whether a father giving his son in adoption can abandon the son's rights arising from the adoption, as ruled in Ckiiko Raghundth v. Jdnaki (11 Bom. H. C. R. 199) was questioned by the Privy Council in Bamasawmi Aiyan v. Vencatarmnaiyan, L. R. 6 I. A. at p. 208, and the High Court of Madras has declared that the adopted son on attaining his majority may get any such arrange- ment set aside. See Lakshamana Rdu v. Lakshmi Ammdl, I. L. R. 4 Mad., at p. 163. An agreement was pronounced null by the oastri whereby an adoptive mother obtained from the son she adopted a resignation to her of the bulk of the family property. Such an agreement could not, the iSdstri thought, be annexed to sonship, and he assigned to the adopted son the full rights of an heir subject to the obligation of maintaining the adoptive mother. Adoption, Q. 15, MS.
188 LAW OF INHERirANCX QbOOK 1.
ownership when it subsists singly is recognized as consist- ing in a right to deal with the object owned at pleasure, (a) and though some kinds of property cannot be freely disposed of by the representative owner either on accouTit of other persons being interested or because of the ne- cessary preservation of the corpus of the property for particular purposes, (b) yet generally the ownership implies a power of aKenation (c) as well as of use and abase, except so far as the pubhc law may be infringed (d) by any proposed dealing with the property. A grant, therefore, of ownership or a will (e) with a condition against alienation or the other common uses of ownership operates while the condition is void as repugnant to the ownership created. (/) It must be assumed that the grantor rather intended his act to be efifectual than ineffectual even though he should fail to secure the performance of some condition legally impossible or injurious ; and the courts representing the State are not called on to give effect to commands or engagements which would violate their "dharm*' or cause mischief to the com- munity, {g) But the grantor may stipulate or provide for
(a) See Viramit., Transl. pp. 34, 138. N&rada^ quoted Col. Dig. Bk. II. Gh. IV. T. 6.
(&) Ndrdyan v. Ghintdmon, I. L. R. 5 Bom. 393. See above, p. 18^.
(c) Nftrada, ut supra; Col. Dig. Bk. II. Ch. IV. T. 30, Comm.; Viramit. Transl. p. 138.
(d) Col. Dig. Bk. III. Ch. II. T. 28.
(e) Gaily Nath Naugh Ghowdhry v. Chvmder Nath Naugh Chow- dhnjy I. L. R. 8 Cal. 378.
(/) In the case of a charitable endowment an opposite principle prevails. Property sold in execution of a decree against a Mabant who had mortgaged it was recovered by the Vair&gis associated with him as incumbered by a patent breach of trust which the Sastri said entitled the Society to set the Mahant and his transactions aside Q. 86, MS., Surat, 27th Feb. 1852.
{g) See Manu Ch. VIII. Sec. IV. para- 1 ;* Col. Big. Bk. HI. Ch. II. T. 28.
PRODUCTION.] LIMITATIONS OP PEOPEETY. 189
yarious advantages to himself or to others (a) arising ont of the property and so far diminish the advantages of the pro- prietor in it. Co-owners, too, may make similar arrangements inter seas to their common property, {b) reserving rights for instance to themselves in stated mutual relations during and after a life interest which they join in granting, (c) These stipulations the grantee personally must observe, and so must his heirs, as the Hindi!! law attaches a sacred value to a promise, (d) but how far precisely they adhere to the property in the hands of alienees, that is, to use the English phrase, "ran with the land,*' can be determined only by degrees as actual cases arise, (e) The Hindu law emphatically bids the judge to prevent the success of a fraud, (/) and thus not only the doctrine of enforcing a representation which has been acted on (g) but of the obligation passing with the.ownership {h) where public policy approves of the connexion, to a person who takes with notice of it, would be enforced in as full consistency with the HindA law as with the English law. (i) The law of Registration now enables every one who reserves any part of the ownership in property
(a) Gaily Nath Naicgh Chowdry v. Chunder Nath Naugh Chotodhry, I.L.R. 8 Cal. atp. 388.
(b) mikanth Qanesh v. Shivrdm Ndgesh, Bom. H. C. P. J. F. 1878, p. 237.
(c) A stranger to such an arrangement or to an award, though a relative, cannot rely on admissions in it, or relating to it, as a ground for rights to. which the law does not entitle him. Ganga Sahai v. Hira Singh, I. L. R. 2. All. 809.
(d) N&rada IV. 6,Transl. p. 59 ; Vyav. May. Ch. IX. Sec. II. ss. ; Col. Dig. Bk. II. Ch. IV. T. 3, 4, 6.
(e) See Transf. of Prop. Act, IV. of 1882, § 40.
(/) Manu VIII. 166; Col. Dig. Bk. IV. T. 184; Vyav. May. IX. 10.
(g) See per Lord Oottenham in Hammersley v. Be Biel, 12 C P. 61 n.
{h) Western v. MacDermott, L. R. 2 Ch. Ap. 72 ; Leech v. Schweder, L. R. 9 Ch. A. 465, 475.
(t) Jugg^iimohvnee Dossee v. Sookhemoney Dossee, 17 C. W. R. 41 C.R.
190 LAW OF INHERITANCE. [bOOK I.
of which he is disposing to give virtual notice of this to every future purchaser, (a) The omission to register any material stipulation will, in general, except in insignificant cases, deprive it of effect as an interest in the land, and perhaps turn the presumption of apparent fraud against him who has failed to take an obvious precaution. (6)
The law of gift has been discussed with great subtlety by the Hindfl lawyers on account of its close connexion with the law of sacrifices. The necessary concurrence at the same moment of the will of the donor and donee in passing some definite existing object from one to the other is usually insist- ed on (c) as a means of completing a gift; but Jagannatha points out that a debtor releases himself by assigning something yet to come into existence, (d) and that an assignment of a periodical income operates necessarily through a past volition on each instalment as it falls due. (e) Hence, he says, the gift of property is valid though it be
(a) See Act III. of 1877 ; Transf . of Prop. Act, IV. of 1882, § 64, 59, 107, 12S ; Ichhirdm Kdlidds v. GovmdrdniBhou'dnishankar,!. L. R. 5 Bom. 653; Sohhdgchand v. Khnpchand Bhdichand, I. L. B. 6 Bom. 193 ; Bipuji Baldl v. Safyablulindhdi, I. L. R. 6 Bom. 490.
(b) Comp. Tdrdchand v Lakshman, I. L. R. 1 Bom. 91.
(c) See Vlramit. Tr. p. 31 ss ; Ddyabh. Ch. I. paras. 21-24 ; 2 Str. H. L. 427 ; Vithalrav Vamdev v. Chanaya, Bom. H. C. P. J. F. 1877, p. 324. Comp. the Transf. of Prop. Act, IV. of 1882, § 122, 124.
{d) Col. Dig. Bk. II. Ch. IV. T. 43, Comm. The right in such a case passes immediately ; it is the fruition of the right which is future. Comp. Savigny, Syst. § 385.
(c) See Collector of Sural v. Pestonji Ruttonjiy 2 Morris 291, cited in MaJiaraval Mohamingji Jeystngji v. The Government of Bo^nhayt L. B. 8 I. A. at p. 84. But in the case of Babu Boolichand v. Bahi Birj Bhookan (decided 4th Feb. 1880) the Judicial Committee declined to affirm the principle that a merely expectant interest can be the sub- ject of sale under the Hindtl law. It is improbable, their Lordships say, that the principle of the English law which allows a subsequent- ly acquired interest to feed the estoppel can be applied to Hindi conveyances. Where the Transfer of Property Act, IV. of 1882, is in force, its provisions and exceptions must be considered along with this and similar judgments. See Sees. 43, 54 of the Act.
INTfiODUCTlON.] LIMITATIONS OP t^ROPERTl?. 191
accompanied by tbe donor's retention of a life interest, (a) and so ia the case of Muhalukmee v. Three grandsons of Kripashoohul, (6) it was said that a gift in Krishndrpan (religious charity) was good though possession was retained by the owner. (c) In the case at 2 Macn. K. L. 207 it is said that a gift may be accompanied by the donor's retention for life; but then his subsequent gift accompanied by possession supersedes the deferred one. This would reduce the remain- der arising on the donor's death to a mere equitable right, (d) but the creation of the deferred right is at any rate not incon- sistent with the HindA law; and now by means of registration having virtually the effect of possession (e) great safety may be given to rights which are to be enjoyed only in the fu- ture.(/) In the case of a near relation a mere gratuitous, agreement thus becomes binding, though as- between strangers void.(gr) As to all persons, however, it is said "Nothing in this section shall affect the validity as between the donor and donee of any gift actually made." (A) When the *' gift is actually made " is left apparently to be governed by the law of the parties, (i) and so amongst the Hind (Is by principles already partly considered, (j)
(a) Col. Dig. Bk. II. Ch. II. T. 43, Comm.
(b) 2Borr. R. at 661.
(c) See however Laluhhdi Surchand v. Bdi Amrit, I. L. R. 2 Bom. at p. 331.
(d) See Laluhhdi Surchand v. Bdi Amrit, I. L. R. 2 Bo. at p. 331. (t)I6., pp. 319, 332.
(/) Abadi Begam v. Asa Ram, I. L. R. 2 All. 162. See Act III. of 1877 Sec. 50 ; Transfer of Property Act, IV. of 1882, Sees. 54, 58, with Sec. 5 where the Act ia in force.
ig) Indian Contract Act, IX. of 1872, Sec. 26.
(h) No reference to the enactment is made in the case of Nasir Eusain v. Maia Prasad, I. L. B. 2 All. 891.
(i) See the Transfer of Property Act, IV. of 1882, Sees. 122, 124.
(j) Under the English as under the Hindti law {see Col. Dig. Bk. V. T. 1, Comm. (vol. II. p. 614 Lond. Ed., vol. II. p. 191 Madr. Ed.) " It reqaires the assent of both minds to make a gift as it does to make a contract," per Mellish, L. J., in Hill v. Wilson, L. R. 8 0. A. 896. Bui see also per Lord Mansfield in Taylor v. Horde, 1 Burr, at p. 124.
192 LAW OP INHERITANCE* [bOOK L
Whether a gift valid as against the donor is to all intents valid as against his representatives and his coparceners in a joint estate, is a point also left to be determined by the law of the parties, (a) The distinction which the legislature had in view was probably one between the donor and his represen- tatives on the one hand and his creditors or persons having claims on the property on the other. A HindA husband, it has been held, cannot alienate by a deed of gift to his undivided sons by his first and second wives the whole of his immoveable property though self-acquired, without making for his third wife, who has not forfeited her right to maintenance, a suitable provision to take effect after his death. After the husband's death, she is entitled to follow such property in the hands of her step-sons to recover her maintenance, her right to which is not affected by any agreement made by her with her husband in his lifetime. Her right is merely an inchoate right to partition, which she cannot transfer or assign away by her own individual act ; and unless such right has been defined by partition or otherwise it cannot be released by her to her husband, (b)
By the Hindd law, sale of land to be effectual had formerly to take the shape of a gift, (c) The rule as to delivery and acceptance applies therefore equally to the one as to the other. But the Courts, in order to defeat fraud, will give an assistance to a purchaser for value which they will not to a
(a) As to coparceners see Fundui-wng v Nant, Sel. Rep. 186; Laks^' man Dddd Ndik v. Rdmchandra Dddd Ndik, L. R. 7 I. A. 181 ; S. C. I. L. R. 5 Bom. 48 ; Suraj Bunsi Koer v. Sheo ProsJiad Swgh L. R. 7 I. A, 88.
(b) Narbaddbdi v. Mahddev Ndrdyant I. L. R. 5 Bom. 99.
(c) Lalub^di Surchand v. Bdi Amrlt, I. L. R. 2 Bom. 299 ; 1 Str. H. L. 19. The exception of religious gifts from the general inaliena- bility of the family estate under the early HindA law had a close parallel in the Saxon and other Teutonic laws in Europe. Grants to the Church might be made without the concurrence of heirs, yet in Europe, exactly as in India, it was usual to obtain the signatures to a grant which might afterwards be disputed of all the persons
INTRODUCTION.] LIMITATIONS OP PROPERTY. 193
mere gratuitous promisee {a) whose right, indeed, unless the transaction has been a " gift actually made/' is, as we have seen, made null by the Indian Contract Act.
Though a proprietor cannot create interests of a kind nnknown to the law, or give to his property an eccentric mode of devolution, and though his powers in these respects are more narrowly restricted by the HindA than by the English law, (b) yet he can carve out of his ownership many interests which his successors must recognize, (c) Thus as to his self-acquired property he enjoys a virtual freedom of disposition as to the persons to be benefited by estates in themselves legal, {d) As to the inheritance, his son's equal rights do not prevent him from burdening it with debts not prodigally or profligately incurred, (e) If he dies with debts unsettled, but not secured by a specific lien, they do
interested. See Lex Sax. XV; Laboulaye Histoire du Droit de Proprie'td Fon^iere en Ocxiident, Lib. YIII., Ch, I. The first charters of hook-land in England were granted to the Church, through which grants to laymen came in. See Stubbs, Const. Hist. 1. 131;Elt. T. of Kent, pp. 15, 16 ; Mit. Ch. I. Sec. I. para. 32 ; Vyav. May. Ch. II. Sec. 1, para. 2 ; Col. Dig. Bk. XL Ch. IV. Text 33; Bk. V. Ch. VII. T. 390.
(a) See Coleb. in 2 Str. H. L. 433. 434.
(b) 1 Str. H. L. 25.
(c) See Oirdharee LqUy. Kantoo Lall, L. R. 1 I. A. 321; SuraJ Bunsi Koer v. S'heo Proshad Singh, L. R. 6 I. A. at p. 104 ; Jatha Ndik V. Venktdpd, I. L. R. 5 Bom. at p. 21. The second proviso in Bale IV. Sec. 11 Madras Act 8 of 1865 does not apply to leases which are bond fide and valid under the general HindA law;— only when they are a fraud upon the power of the grantor's successor as manager and to the prejudice of the successor.
(d) See Mit. Ch. I. Sea I. para. 27 ; Vyav. May. Ch. IX. Sec. 6; Smriti Chand. Ch. II. Sec. I. paras. 22, 24, qualifying Ch. VIII. para. 26; Madhavya, paras. 16, 5; Coleb. in 2 Str. H. L. 439, 441; Varadrdja, pp. 5, 8 ; infra, Bk. II. Ch. I. Sec. 2, Q. 2 and Q. 8.
(e) Col. Dig. Bk. II. Ch. IV. T. 16, Comra.; Hunooman Persaud Panday v. Musst. Babooee Munraj Koontveree, 6 M. I. A. at p. 421.
25h
194 LAW OF INHERITANCE. [bOOK I.
not form a charge on the estate itself, (a) though the heirs taking the estate are so far answerable, {b) It is assets for the discharge of the father's debts, (c) A gift within reasonable limits to any child must be given effect to^ {d) and so must a provision for a wife, a concubine, or an illegitimate child, (e) These dependents are indeed entitled as of right to a provision even against the terms of a will (/ ) or a gift, (g)
(a) Oirdharee LaU v. Kantoo LaU, L. R. 1 I. A. 321 ; Jamiyatrdm V. Parbhudhds, 9 Bom. H. C. R. 116.
(6) Oolagappa Chetty v. Hon. D. Arhuthnot and others, L. R. 1 I. A. 268.
(c) MuUayan Oheitiar v. Sangili, L. R. 9 I. A. 128.
id) Viramit. Tr. p. 251 ; 1 Str. H. L. 24. A gift by a Joshi of a material part of his vatan to his daugbter's children was pronoanced void as against bis adopted son who, however, it was said must make good a present of a reasonable portion, Q. 712 MS. The testamentary power under the Roman law seems to have received recognition on account of its enabling the testator to provide for his children in some measure according to his affection for them. See Maine, Anc. Law, Chap. Vn. p. 218 (and this Section svh fin).
(e) Salu V. HarU Bom. H. C. P. J. F. 1877, p. 34; RdhiY. Qovinda, I. L. R. 1 Bom. 97. The mistress, it was said, must not alienate the house given to her by her patron, Q. 712 M. S.
(/) Comulmoney Dossee v. Bamanath Bysack, 1 Fult. 189.
ig) Narhaddhad v. MaMdev Ndrdyan, I. L. R. 6 Bom. 99 ; Jamna v. Machul Sahu, I. L. R. 2 All. 315.
The HindA jurists who recognize the power of a father to make away with the patrimony, though be incurs sin in doing so, point to remedies analogous to those provided by the Roman law. The son has a right of interdiction to prevent improvident alienations. Mit. Ch. I. Sec. VI. paras. 9, 10; and this the 6astri said applied equally to the adopted son and the brother, Q. 1786 MS. He may claim to have the gift or disposal set aside if he be thus impoverished as implying mental derangement on the part of the donor. Col. Dig. Bk. n. Ch. lY. Sec. 2, T. 53, 64. Comp. Yyav. May. Ch. IX. 3, 6, 7. For the Roman law see Voet ad Pand. Lib. XXYII. T. X. paras. 8, 6, 7; Inst. Lib. n. Tit. XVIH., and Voet ad Pand. Lib. XXXIX. Tit. T. paras. 36, 37 ; Ortolan ad Inst. § 787 ss. 799 ; Poste's Gains, pp. 51, 205; Monunsen, Hist, of Rome, B. I. Ch. XI., Eng. Transl. vol. I. p. 1^^-
r
imoDucnoN.] limitations op pbopeett. 195
not as against a sale for the payment of a family debt which it is the duty of the head of the family to pay. (a)
The general injunction to perform a father's promise must be regarded now rather as a moral than as a legal precept^ and the obligation to pay the debts of the father does not extend to those of the other members of a family, even of a joint family, unless they have been contracted for the com- mon good or under pressure of some severe necessity. (6) When there are no sons or grandsons holding a joint estate with the ancestor the line of succession is prescribed by law ; bnt, subject to provisions for maintenance, the property is entirely at the disposal of the owner notwithstanding the existence of collateral heirs, (c)
There does not seem to be good authority for saying that the person giving property to the members of a HindA family can impose on them such terms as that they shall become divided or remain undivided.(d) The decision in Oanpat v. Moroha {e) may have proceeded upon a misappre- hension of B^lambhatWs comment on the Mit&kshar^ Ch. I.^ iSec. II., para. 1. (/) Sons cannot be made separate inter se against their will^ since partition itself is defined as a particular kind of intention, (jf) in the absence of which therefore it does not exist. So the declaration of such intention will constitute partition, and cannot be prevent- ed. (A) The grantor may bestow separate interests on
(a) Natchiarammal v. Oopal Krishna, I. L. R. 2 Mad. 126. (h) Mit&k. Ch. I. Sec. I. paras. 28, 29 ; 2 Str. H. L. 842 ; Col. Dig. Bk. I. Ch. V. T. 180, 181.
(c) See Coleb. in 2 Str. H. L. 15 ; above, p. 139.
(d) See Maccundds v. Ganpatrao, Perry's O. Cases, 143.
(e) 4 Bom. H. C. R. 160 0. C. J.
(/) See infra, Book II. Introd. § 4 C.
(s) Vyav. May. Ch. lY. Sec. HI. para. 2; infra. Book II. Ch. HI. S. 3, Q. 6, and Book 11. Ch. IV. Q. 8.
(i) Mookoond LaU Sha v. Ganesh Chandra 8ha, I. L. R. 1 Calc. 104 ; Rajender Batt v. Bham Chand Mitter, I. L. R, 6 Calc. 106, 116.
196 LAW OF INHERITANCE. [bOOK I.
members of a joint family, or a joint interest on 'separated members; but lie cannot tbas effect their status inter ge. As separate properties may be held by members of a unifced family, (a) they may take an estate as tenants in common side by side with their inheritance and its accretions held in union, and separated members may take a property as joint tenants or as partners, (b) but their interests and mutual relations are in such a case and without a reunion, essen- tially different from those of a joint Hindi! family. The sacrifices continue separate, and this makes a true unity of the family impossible. It follows that property given to Hindfls, though it may be subjected to charges as already shown, cannot be controlled in the hands of the donee by fantastic directions as to its enjoyment or devolu- tion or by accompanying conditions on matters which the HindA law intends to leave to the religious feeling (c) or the worldly wisdom of the owners for the time being, (d) The law itself prescribes many regulations for the preserva- tion and welfare of the family which is its principal care.(e) It allows for the varying rules of custom, (/) andhaving done this gives but little scope to the caprices of individuals. It accepts indeed a theory more comprehensive even than Plato's (g) of the inherent nullity of acts which, on account of their eccentricity, implying injustice, may be ascribed to a disturbance or perversion of the faculties. (A)
The historical reason for the limited powers of disposition allowed to owners by the Hindft law is probably to be found
(a) See Vdsudev Bhat v. Venkatesh Sanbhav, 10 Bom. H. C. R. at pp. 157, 168.
(h) See Rampershad v. Sheo CJivm Doss, 10 M. I. A. 490.
(c) So under the Roman law, see Goudsmit, Fand. p. 168.
{d) See Maccundds v. Oanpatrao, Perry, Or. Cases, 143, and Abdvi Qannee v. Husen Miya, 10 Bom. H. 0. R. at p. 10.
(e) See 1 Str. H. L. 17.
if) Col. Dig. Bk. Y. Ch. Y. T. 365.
(g) See Grote's Plato, III. 396.
{h) Col. Dig.Bk. II. Ch. lY. Sec. H. Art. HI.; Yyav. May.Ch. IX. paras. 6, 8; Yiv&da Chintdmani, Tr. pp. 82, 83.
INTBODUCTION.] LIMITATIONS OF PBOPEETY, 197
in the ancient idea of the inalienability of the patri- mony, (a) This allowed mortgages bnt prevented sales. (6) The mortgages were nsually accompanied with possession, and the lien by degrees became confused very often with ownership. Then gifts to religious uses were highly com- mended, (c) They were, in principle at least, inalienable and irrevocable (d) even by the sovereign, if the strongest imprecations on him who should resume a grant could make them 8o.(e) It was impossible that these should be attend-
(a) This may have been developed from the sacrednessofthe house and the cartilage at a stage in which the laboar of clearing the land from trees formed the only appraisable element of the value of any holding. The lot was consecrated to thoso who had cleared it as a Bafegoard against invasion and alienation both. Comp. Grote's Plato m. 390. It has been found in some cases, as in the Canara Forest case, referred to in the next note, that persons who in remote places had consecrated shrines to the honour of the forest gods, supposed to be protective against tigers and miasma, and maintained a rade worship to these divinities, claimed on that account a lordship of the tract ; which was acquiesced in by immigrants through superstitious fear. Continued enjoyment grew in time into a kmd of ownership, which it was then attempted to assert with all the incidents belonging to it under an advanced system of individual and exclusive proprietary right. Comp. Lavel. Prim. Prop. 24, 104, 131.
{h) Mit. Ch. I. Sec. I. para. 32. See 5th Beport on Indian Affairs, p- 130, as to the mortgages of Canara redeemable after any lapse of time, and Bkdskardpjpd v. The Collector of North Kdnard, I. L. R. 3 Bom. at p. 525, and comp. Tupper, Panj. Cust. Law, vol. II. pp. 89, 45.
(c) Mit. Ch. I. Sec. I. para. 32; Manu IV. 230, 235.
(d) Yyav. May. Ch. IX. 6 ; Ch. lY. Sec. VII. paras. 21, 23 ; Col. Dig. Bk. V. Ch. V. T. 365; Na/r&yan v. Chlntdmon and another, I. L. R. 5 Bom. 393 ; Maharanee Shihessov/ree Dehia v. Mothooranath Achm-jo, 13 M. I. A. at p. 273 ; The Collector of Than/na v. Eari Sitaram, Bom. H. C. P. J. F. 1882, p. 204 S. C ; I. L. R. 6 Bom. 546.
(0 It is interesting to compare with the familiar " 60,000 years in ordure '* in the HindA grant the invocation of the fate of Dathan and of Judas on those who should resume an ecclesiastical grant in Europe. Annal. Bened. II. 702, " Veniam consequantur quando con- aecuturas diabolus.'* Marcnlf. Lib. II. Form. 1. See Lab. op. cit. P- 303, compared with Ind. Antiq. vol. XI. pp. 127, 162.
198 LAW OF INHERITANCE. [bOOK I.
ed with the manifold limitations by which in dealing with purely secnlar property a settlor or testator might endeavour to mould the interests of successive generations and provide for the reversion of the property in particular events. Sales as they were introduced had to take the form of gifts, (a) and were thus made equally without qualification or reserve. The united family, however, providing by birth or by adop- tion a Jieres necessarius in almost every case, and making the assent of sons necessary for the disposal of immoveable property, (&) acted as a continual check on the ingenuity and even on the wishes of the class of proprietors. It would be almost impossible to obtain the acquiescence of the co-owners in any settlement to which they were not bound to submit, and the ancient lawyers unaided by powerful courts of conscience had not hit on the manifold applications of uses. The unchangeableness, too, of the political and social condition of the Hindfls during many centuries favoured the natural immobility of an essentially religious law. The manes had to be duly honoured, (c) the present and the coming generation provided for, (d) while little or nothing occurred to tempt proprietors from the worn track of past centuries. The v^idely-spread Maho- medan rule prevented for six or seven hundred years the growth and continuance of HindA states on a great scale, and the development, if it were possible, of a progressive HindA polity. Men were driven in upon their families and their traditions as their only available centres of interest, while externally none of the astounding changes of physical circumstances which have marked the period of British dominion, arose to break the shackles of custom, and to arouse dormant intelligence to new possibilities of making wealth
(a) Ldl/Mim Swrchand v. Bat AmriU I. L. R. 2 Bom. at p. 331; Col. Dig. Bk. V. Ch. VII. T. 390 ; Mit. Ch. I. Sec. I. para. 32.
(&) Mit. Ch. I. Sec. I. para. 27 ; Rangama v. Atchama, 4 M. I. A. at p. 103; PAndmang v. Nam, Sel. Rep. 186. See above, p. 1^2.
(c) Manu IX. 1858.
(d) Mit. Ch. I. Sec. L para. 27.
INTBODUCnON.] LIMITATIONS OP PROPERTY. 199
and of dispensing it. Some little movement there was : the legislative and systematizing faculty showed itself in such works as those of Apar&rka and of Budra Deva^ (a) the mrityu patra and the gift in trust, the mortgage and the lease in their manifold forms sappUed a foundation on which a whole system of Hindfi equity and of interests in estates, no less far reaching and complicated than those of England, might have been built up ; but though the materials were at band the circumstances were wanting in which they could be organized. It was not until the British rule prevailed that the Hindil found himself a living part of a great and progressive community, with endless incentives to mental activity and to the imitation of rules tending always to extension of the individual's plastic power over property. The subsequent history of the HindA law, though it presents a development of several purely indigenous principles, has been enormously influenced by English notions. It is im- possible, even were it desirable, that these should be wholly cast aside: they are most in harmony with the general mass of English thought which is leavening the native mind ; and they practically afford the only common standard and source to which the Courts can resort, when the meagre resources of the primitive law fail. But the Judicial Committee in some of its more recent decisions has shown itself quite alive to the fact that the narrower peculiarities of the English law will not blend with the HindA system, and has carefully dwelt on the points of distinction, (b) It has shown no £EiiVOur to any extension to India of the endless "dissipations** of the ownership in minute and tangled
(a) The Sarasvati Vil^sa.
(b) See Tagore case passim, L. B. S. I. A- 47.
" The Hindu law contains in itself the principles of its own exposi- tion. The Digest subordinates in more than one place the language of texts to custom and approved usage. Nothing from any foreign source should be introduced into it, nor should Courts interpret the text by the application to the language of strained analogies." 13 M. I. A. at p. 390.
200 LAW OP INHERITANCE. [bOOK I.
interests, or to the paralysing restrictions on the use and exchange of property which in England itself are now felt as a serious impediment to the general welfare. It seems likely, therefore, that in yielding to the new influences brought to bear upon it, the Hindii law will go forward in a few and simple steps to the point of adaptation to the actual needs of society without passing through those in- termediate stages of nominal ownership united so often with a real helplessness of the proprietor, the rules regarding which form so large a portion of the present English law.
It will have been seen that the creation of a perpetuity by a private person in favour of private persons is impossi- ble under the Hindil law. (a) The nearest approach to it perhaps is in the case of the purohits or hereditary family priests. Property given to the family of a purohit as such for ever is of the nature in part at least of a religious endow- ment. (&) In creating such an endowment there is a vir- tually unlimited power of disposal of property fully owned(c) provided only that the support of the family and its dependants be not impaired, {d) The founder may provide for succes- sors to the immediate donee who have still to come into being, {e) and may in some measure prescribe the mode of
(a) In a case from Penang, Tvhere the English law prevails " as far as circumstances will admit," it was held that the rule against perpe- tuities was applicable as founded on considerations of public policy of a general character, but subject to an exception ** in favour of gifts for purposes useful and beneficial to the public, and which in a wide sense of the term are called charitable uses." Yeap Cleah Nev V. Ong Chmg Nev, L. R. 6 P. C. A. at p. 394.
(6) See 2 Str. H. L. 12, 13 ; Col. Dig. Bk. II. Ch. IH. T. 43, Comm.
(c) Col. Dig. Bk. II. Ch. IV. T. 66, Comm. ; T. 3 ; T. 33 ; Dwar- kanath Bysack v. Burroda Persaud Bysack, I. L. R. 4 Calc. 443; Lakshmishankar v. Vaijnath, I. L. R. 6 Bom. 24.
(d) See 2 Str. H. L. 12, 16, 342 ; Co. Di. Bk. II. Ch. IV. T. 10, 11 Comm. ; T. 18 Comm. ; Radha Mohim Mundul v. Jadoomonee DosMe, 23 C. W. R. 369 ; Juggutmohmee Dossee v. Sookhemony Dossee, 17 C W. R. 41.
(c) Khmakhaiid v. Mahddevgiri, 12 Bom. H. C. R. 214.
INTRODUCTION.] LIMITATIONS OP PROPERTY. 201
saccession or the qualifications of the successors. (a) The idol, deity, or the religious object is looked on as a kind of human entity, (6) and the successive oflSciators in worship as a corporation with rights of enjoyment but not generally of partition (c) or alienation except so far as this may be necessary to prevent greater injury.((i) Such endowments are frequently founded by subscriptions and are augmented by gifts and bequests simply to the institution, (e) No rales have, in a majority of these cases, been formally pre- scribed : the intention of the founders has to be gathered from the traditional practice, and the succession is thus deter- mined by the custom of each particular institution, (/) though this may have become embraced in some more
(fl)" Where the founder has vested in a certain family the ma- nagement of his endowment, each member succeeds per
formam doni** so that execution proceedings against one do not affect his successor in the endowment. Trimbak Bawa v. Narayan Bawa, Bom. H. C. P. J. F. for 1882, p. 350. " If a person endows a college or religious institution the endower has a right to lay down the rule of succession." Pr. Co. in Greedharee Doss v. Nuiido Kissore Doss Mohunt, 11 M. I. A. at p. 421 ; 1. Str. H. L. 210 ; 2 ib. 364 ; Comp. Maine, Anc. Law, Ch. VII., p. 230.
(6) Maharaiiee SMbessuree Debia ^ . Mothooranuth Acharj, 13 C W. R. 18, P. C. S. C. 13 M. I. A. 270 ; Momishee Mahomed Akbar v. Kalee Chum Geeree, 25 C W. R. 401.
(c) Viram. Tr. 249. See below Bk. II., Introd. Impartible Pro- perty and Rights, &c. arising on Partition; 1 Str. H. L. 210, 151,- AnundMoyee Chowdhrain v. Boyhanthnath Roy, 8 C. W. R. 193.
(d) See Khusdlchand v. Mahddevgiriy 12 Bom. H. C. R. 214 ; Manohar Ganesh v. Keshavram Jebhai, Bom. H. C. P. J. F. 1878, p. 252; Ndrdyan v. Chintaman, I. L. R. 5 Bom. 393; Juggernath Roy Chowdhry v. Kishen Pershad, 7 C. W. R. 266; Drobo Mhser v. Srimebash Misser, 14 0. W. R. 409 ; Nimaye Chum. Puieehindee v. Jogendro Nath Banerjee, 21 C. W. R. 365 ; Mohunt Burm Siiroop Dass. V. Kashee Jha, 20 C. W. R. 471 ; Prosunno Kumari Debya v. Goolab Chand, 23 C. W. R. 253, S. C. L. R. 2 I. A. 145.
(e) Sammaniha Pandara v. Selhppa Chetti, I. L. R. 2 Mad. 175. (/) Rajah Vtrnnah Valin v. Ravi Vurmah Mutha, L. R. 4 1. A. at p.
83. Greedharee Doss v. Nundo Kiasm-e Doss, 11 M. I. A. at p. 427.
202 LAW OF INHBEITANCB. [bOOK I.
extensire custom, (a) And as to the management of an endowment, it is not competent for tte holders in one gene- ration to impose roles on those of another, (b) The endow- ment once made cannot be resumed, but performance of the duties may be enforced, (c)
Though a religious endowment is not necessarily confined to a single family, {d) this is a very common kind of estate, {e) and may be attended with the usual incidents subject only to providing for the performance of the reli- gious functions. (/) In the case of other public or semi- public offices the exclusive right of a single family and a several enjoyment of shares (^g) is usually accompanied by a rule of non-alienability beyond the limits of the family, as in the case of vatans, (h) and frequently of impartibility, the burden of proving which, however, rests on those who assert it. (i)
(a) Co. Di. Bk. III. Ch. 11. T. 6 ; QoBsain Dowlut Geer v. Bissessur Geer, 19 0. W. R. 215 ; 1 Str. H. L. 151 ; Malhdr Sakhdrdm v. Udegir Guru CTiampatgir, Bom. H. C. P. J. F. 1881, p. 108, and the cases therein cited.
{b) Nor can the court prescribe such rules ; Burwaree Chand Thakoor V. Mudden Mohun ChuUoraj, 21 C. W. R. 41. As to attempted restraint on choice of a successor ; see Greedharee Dose v. Nundokissore Boss, 11 M. I. A. 405, 421.
(c) See Juggut Mohinee Do88 v. Musst. Sokhee Money Dossee^ 14 M. I. A. at p. 302 ; Nwn Narain Singh v. Ramoon Paurey, 23 C. W. R. 76.
(d) See Sammantha Pandora v. SeUappa ChettU I. L. R. 2 Mad. 175.
(e) 2 Str. H. L. 368 ; Vithal Krishna Joshi v. Anant Rdmchandra 11 Bom. H C. R. 6; Divaker Vithal v. HarbKat, Bom. H. 0. R. P J- F. 1881, p. 106; Manchardm Bhagvanbhat v. Pranshankar, Bom. H. C. P. J. F. 1882, p. 120.
(/) Co. Di. Bk. II., Ch. in., T. 43 Comm.; Ganesh Moreshmrr. Prabhdkara Sakhdrdm, Bom. H. C. P. J. F. 1882, p. 181. (g) 1 Str. H. L. 210, 2; i*. 363, per Colebrooke. (h) See Index sub voce, and Bom. Act III. of 1874.
(f ) Timtmgdvda v. Banganga^da, Bom. H. C. P. J. F. 1878, p. 24a
IKTBODUCnON.] LIMITATIONS OP PEOPBRTY. 208
It has been thought that trasts were unknown to the Hindli Law.(a) Such a notion is quite erroneous^ (b) though it is true there has been no such development of the first principles as has taken place under the Equity system in England, The endowments just spoken of> especially when founded by the members of a particular caste^ are very fre- quently held by trustees^ (c) either the mohants bound to a particular appropriation of the revenues (d) or the general punchayat of the caste in the town or village or a body chosen ad hoc. (e) Trusts for the maintenance of a family idol are very commonly created and give to the trustee a valuable interest. The trust is dissoluble only by the assent of the whole family, (/) or of all concerned when the idol is open to public worship {g).
Other trusts of a quasi-religious character are such that effect can hardly be given to them (h) on account of the uncertainty of the purpose of the testator.
Property is not infrequently given to a husband in trust for his wife in which she consequently has a beneficial interest
(a) See the Tagore case, L. R. S. I. A. 47.
(b) Mussumut Thukrain Sookraj Koowar v. The Government, 14 M. L A. at p. 127 ; Thakwrain Ramanund Koer v. ThcJcwrain Raghtmath Koer, L. R. 9 I. A. at p. 60.
(c) Radha Jeebun Moostuffy v. Taramonee Dosses, 12 M. I. A. 380 ; Ram Doss v. Moheswr Deb Missree, 7 0. W. R. 446.
(d) Goluck Chunder Bose v. Rughoonath Sree Chunder Roy, 17 0. W R. 444.
(e) Radlia Jeebun Moostuffy v. Taramonee Dossee, 12 M. I. A. 380, 3d4 ; Juggut Mohinee Dossee v. Msst, Sokheemoney Dossee, 14 M. I. A. 289.
(/) Konvmr Doorganath Roy v. Ramckunder Sen, L. B. 4. I. A. at p. 68. See above, pp. 184, 200.
ig) Manohar Qmesh v. Keshawdm Jebhai, Bom. H. C. P. J. T. 1878, p. 252.
(h) Mdniklal Atmdrdm v. Manchershi Dinshd Coachman, I. L. B. 1 Bom. 269. In Promotho Dossee v. Radhika Prasad Dait, 14 Ben. L. R. 175, a dedication by ^ill was set aside as being in reality a settlement in perpetaity on the testator's descendants, and a new dedication was made with the assent of the parties.
204} LAW OF INHERTTANCTE. [bOOK I.
quite distinct from her purely dependeut joint ownership so called, in her husband's property, (a) Trusts for the benefit of widowed daughters and other helpless persons are not very uncommon, (b) The remedy in case of failure is a revocation of the gift or a defeasance of the estate given to the trustee (c) but the purpose being recognized as beneficial, effect may be given to it according to the law of reason, (d) and now it is recognized that the Courts should rather enforce a performance of the trustee^s duty than allow the
(a) It is substantially the ** dotal " estate of the French and other European continental systems. See Col. Di. Bk. II. Ch. IV. T. 28 Coram., T. 29 Comm., T. 30 Comm.
(6) See 2 Str. H. L. 234. A settlement may be found in the case of Subedar HusseinsJuikhan Sayedshakhan, Bom. H. C. P. J. F. 1882, p. 247, which, though in that case made by a Mahomedan, foUowB in form and substance a pattern common amongst Hindus. The settlor being old gives to his son his whole property with a charge to main- tain and shelter his step-mother, sister and other dependants. Provision is not made, probably through oversight, for the settlor*8 own subsistence. If this had been added we should have had the common form of a Mrityu patra, a settlement operating substantially as a will.
(c) Col. Di. Bk. ir. Ch. IV. T. 53 Comm., T. 56 Comm. Similarly under the Roman law the modus, i.e. the charge or obligation accompanying a gift might be enforced by an action to that end or the donor could reclaim the gift. It was impossibility of performance only (including omission of any call for p>erformance where a call was necessary) that excused the donee. This principle has been applied in India to many cases of lands granted for service in the sense that the service must be performed when required by the holders. See Rajah Lelanund Siiigh Babadoor v. TJie Govei-nment of Bengal, 6 M. I. A. 101; Forbes v. Meer Mahomed Tuqtiee, 13 M. I. A. at p. 463 ; Bajah Lelamnd Singh Bahadoor v. Thakoar Munoorunjuti Singh, L. R. S. I. A. 181; Keval Kabery. The Talukdari Settlement Officer, I. L. R. 1 Bom, 586. Coke, L. 204, applies a more rigorous construction to royal grants than to those of private persons. This should be borne in mind in reading Forbes v. Meer Mahomed Tuquee, supra.
(d) See 1 Str. H. L. 151 ; Mohesh Chunder Chicckerbatty v. Koylash Chunder, 11 C W. R. 449 C. R.; Gopeenath Chowdry v. Gooroo Dasi Surma, 18 C. W. R. 472 C R.; Nam Narain Singh v. Ramoon Paurey, 23 C. W. R. 76.
INTBODUCTION.] LIMITATIONS OF PROPERTY, 205
founder or his representative to annnl the trust or hand it over to a new trustee. The aid of the courts may be invoked and the High Courts can in such cases exercise the sumraary power conferred on them by the Indian Trustees' Act 27 of 1866; the substantive law forming the basis of the rights being the Hindi! law, but the application of that law in cases falling within its principles but not its detailed rules being governed by the rules established in the English Courts of Equity. (a) The same principles are applied as those of good conscience to the . determination of cases arising in the Mofussil : of this there are many instances. (6) Thus should a transaction be pronounced void or revocable by the HindA law (c) and accordingly be rescinded by the Court, the determination of the legal relation would probably be governed, in the Mofussil at any rate, by the Sastras as modified by custom, but for dealing with the resulting trust in favour of the grantor recourse would almost necessarily be had to the English precedents, because the Hindu jurists have not furnished any.
Regard may properly be had to native usages and practices in determining whether in any disputed case a trust has been effectively created or not. (d) Effect will be given to it 80 far as it subserves a practicable (e) and legal pur- pose, (/)• but an estate or mode of devolution or enjoyment not allowed by the Hindd law cannot be compassed by
(a) In re Kdhdndds NdTn'aTiddsy I. L. R. 5 Bom. 154.
(b) See Juggutmohiyiee Dossee v. Sookhemony Doesee, 17 C. W. B. 41 ; per Sir M. Westropp, C. J., in fVdman Rdmchandra v. Dhondibd Kriahmji, I. L. R. 4 Bom. at p. 154, referring to Lalla Chunilal v. Savaichand; 1 Mori. Dig. Webbe v. Lester, 2 B. H. C. R. 52, and Gouree Kant Roy v. Qirdhar Roy, 4 Beng. L. R. 8 A. C.
(c) See Col. Di. Bk. II. Ch. IV. T. 58, Comm.
(d) Merbdi v. Perozbdi, I. L. R. 5 Bom. 268.
(e) Mdnikldl Atmdrdm v. Manchershi Dinsha, I. L. R. 1 Bom. 269. (/) Amih Nath Day v. A. B, Mackintosh, 8 Beng. L. R. 60; Ra-
jmder Dutt v. Sham Chund Mitter, I. L. R. 6 Calc. at p. 117.
206 LAW OP INHERITANOE. [bOOK I.
means of a trust (a) The ease at Bk. I. Ch. IT. Sec. 7, Q. 1 7 below, was really one of an attempt to create a trust by a declaration subject to a suspensive condition, or by giving property to a son-in-law for the benefit first of his son and secondly of his daughter, should one or the other be born, and thirdly of his wife the grantor^s daughter. The Sastri says that by thus deferring the complete abandonment of his ownership the grantor made the gift invalid.
Though the HindA coparcener cannot in general dispose of the family estate, and the family lands are especially sacred, (b) so that the father desiring to dispose of land must obtain the assent of all his sons,(c) yet religious gift? within moderate limits may be made by a father (d) and his sons are bound to give effect even to his promise, (e) Property thus promised is indeed said to be inalienable, (/) but it must not exceed a certain reasonable proportion to the whole, {g) If this proportion is exceeded the father is pre- sumed to be deranged, (A) though the presumption can be displaced, (i) As to mere promises, these, as has been said, are not now regarded as creating a legal obligation except when they have amounted to a contract supported by a con- sideration. The power of alienation for religious purposes( j) by the head of the family qualifies his general incapacity
(a) Tagore case, L. R. S. I. A. at p. 72.
{h) Y&jn. quoted Col. Di. Bk. II. Chi IV. T. 13, U.
(c) See above pp. 167, 168, and below, Bk. II. Introduction.
(d) Col. Di. Bk. II. Ch. IV. T. 2. See Jaggat Mohhiee'a case, liM. I. A. at pp. 301, 302 ; see also suyray pp. 192, 193.
(e) Col. Di. Bk. II. Ch. IV. T. 3. (/) 16. T. 4.
((7) lb. T. 11, 12.
{h) lb. T. 15, Comm.
(t) As to religious gifts by a woman, see on Stridhana below.
(/) Religious and charitable purposes are coupled in the HindA authorities, and the example given is **a reservoir of water or the like constructed for the public good." Vtram. Tr. p. 250. Under tbi»
INTRODUCTION.] LIMITATIONS OF PROPERTY. 207
to dispose of the immoveable estate^ but Hindu ideas on this subject have been so much supplanted in the courts by those deriyed from the English law, that the general incapacity- can hardly now be said to subsist when sons take the estate as assets for fulfilment of all the father's ordinary obligations. And he may sell the whole ancestral property or at any rate get it sold under a decree to pay his personal debts, (a) As a disposal of property even acquired by himself by a father which leaves his family unprovided for is by the Hindi! law regarded as highly immoral and is ab- solutely prohibited, (l) it may be that the debts, the satis- faction of which out of the estate would almost exhaust ity may be treated as on that account not binding on the sons, should such a case be made for them.(c) The religious gift unless actually completed by delivery would now probably be regarded as void under Section 25 of the Indian Contract Act IX. of 1872, but a will necessarily operates without delivery, and dedications occur in almost every will of con- siderable property.
A gift to a wife by her husband ia not invalidated by the joint interest of his sons in the property. This may be attributed either to the once complete dependence of the sons or to the father's administrative authority so long as it ia not exercised to the obvious detriment of the family. But his discretion must not be exercised in a grossly partial manner:
definition rest-houses for travellers, groves of trees, roads, conduits, and schools, as well as the distribution of alms have in various cases been held to come. And the courts have exercised a liberal discretion, as in the Dakore temple case, in moulding the application of founders, bounty to meet changed circumstances.
(a) See Girdharee LaU v. Kmtoo Lall, L. R. 1 1. A. 321, 334 ; Mutta- ym Chettiar'e case, L. R. 9 I. A. at pp. 143, 144 ; Ponappa PiUai v. Poppuvdyangdr, 1. L. R. 4 Mad. 1 ; VeliyammcU v. Katha, I. L. E. 6 Mad. 61; above, p. 167.
(b) See Manu in Col. Dig. Bk. II. Ch. IV. T. 11 ; Y&j3.i6.T. 16 ; Brihasp.T. 18.
(«) See the Section on Maintenance, and note {h) on next page.
208 LAW OP INHERITANCE* [bOOK I.
his bounty to hie wife must not exceed a reasonable propor- tion to the joint estate, (a) A promise of a provision is to be regarded by the sons as binding on them, (b) but a departure from reason and equity is not to be upheld. So ia a case where a member of a united family dwelt apart and acquired property the Sastri said (c) he could not be allowed to convert it into Stridhana by making presents of costly ornaments to his wife in fraud of his cosharers, though a woman's jewels are usually excluded from partition. A gift from her husband is usually taken by a wife (or widow) on the terms discussed below under Stridhana, but when he is full owner he may give her a larger estate, (d)
A gift to a daughter is warranted by the same authorities as sanction one to a wife, {e) but the gift is for obvious reasons subject to a somewhat narrower limitation in the interest of the donor's family of which his daughter cannot in general remain a member. (/ ) A gift to a favourite son is to be respected though made out of the common property, {g) but no rank injustice is to be allowed, much less a donation by which one son is enriched while another is reduced to want. A man may not deal thus heartlessly even with his own acquisitions, (h) and as to the ancestral estate though according to the decisions he may go far towards
(a) See Vyav. May. Ch. IV. Sec. X. paras. 6, 6 ; and comp. Mit. Ch. I. Sec. I. para. 25.
{b) lb. para. 4> ; Vlram. Tr. p. 228.
(c) Q. 315 MS. Ahmednugger, 13th June 1853.
{d) See Koonjbehari Dhur v. Premchand Dutt, I. L. R. 5 Calc. 684.
(e) See Coleb. Dig. Bk. V. T. 354 ; D&ya Bh&ga, Ch. IV. Sec. 3, paras. 12, 15, 29.
(/) A gift in trust for a daughter out of ancestral property was annulled at the soit of the son. Gmiga Besheshar v. Pirthee PcU, I. L. R. 2 All. 635.
ig) See note (c). As to an illegitimate, Bk. I. Ch. VI. Sec. 2, Q. 2.
(h) Co. Di. Bk. II. Ch. IV. T. 11. 12, U, 16, 18, 19 ; Bk. V. T. 26, 27, 33 ; Vtram. Tr. p. 251 ; Baboo Beer Pertab Singh v. Maharaja Rajender P&rtab Sahee, 12 M. I. A. 1.
INTBODUCrnON.] LIMITATIONS OP PEOPBBTY, 209
dissipating it he cannot dispose of it unequally amongst hia sons, {a)
The independent power of dealing with his self-acquired property assigned to the father by Mit., Ch. I., Sec. 6, pi. 10 (now established), seems to be intended to illustrate the incompetence of the sons to exact a partition of such property by bringing into prominence their incapacity to control the father's authority as manager, without con- tradicting the special rules governing a partition actually made by the father, prescribed in Ch. I., Sec. 2 (fc). N&rada, Pt. 1, Ch. III., paras. 36, 40, would apparently be explained or limited in the same way as Brihaspati ; and the Smriti Chan- drika, Ch. VIII., paras. 21 jf, dwells on the difference between " Svamya '' and '' Svatantrat&, '' L e. between "ownership'' and "independence." In the father's acquisi- tions, Devanda Bhatta says, the sons have '^Sv&mya," though the father alone has " Svatantratfi" ; in ancestral property the sons have both. K&ty&yana says that the son has not " Svdraya" in the father's acquisition, but this is explained (para. 22) as a mere looseness of expres- sion ; and that it was not considered by its author to justify an irregular distribution may be seen from the Vtramitrodaya, p. 55 compared with p. 74. In Sital et al v.
(a) Durga Persad v. Keshopersad, I. L. R. 8 Cal. 666, 663. See Lakahman Dddd Ndik v. Rdmchandra Dddd Ndik, I. L. R. 1 Bora. 561 ; S. C. L. R. 7 I. A. 181, and infra, Bk. II. Ch. I, § 2, Q. 5, nnd Introd.
(h) So also the Vyav. May Ch. IV. Sec. 1, para. 14 ; Sec. 4, pi. 4-8 (Stokes, H. L. B. 48, 49) ; Virara. Transl. pp. 65, 66.
The principle adopted by the Smriti Chandrika of a complete ownership arising immediately on birth accompanied by an exclusive power of administration in the father during his life is contested by JimMav&hana and Raghnnandaiia, who argue that the ownership of the son arises only at the father's death. Mitramisra refutes this contention. (Vtram Transl. pp. 7-15). At p. 45 he insists on the distinction between ownership and independence in the disposal of property. The different senses of swih words as swamitwa have caused as much controversy amongst Indian lawyers as those of dominium in Europe. 27 H
210 LAW OP INHBRITANCB. [BOOK I.
Madho, (a) it was held that a father might bestow a houBe acquired by himself on one son to the exclusion of the other. The learned judges were of opinion that the Mit. Ch. L Sec. 1, pi. 27, (b) conveys only a moral prohibi- tion against the alienation of self-acquired immoveable property. That passage, however, with which the exposition in the Vivjlda Chintamani, page 309, may be compared, declares the participation of sons, not only in the ancestral, but also in the paternal estate, and paragraphs 28-30, (c) show clearly, as it seems, that the father^s power is there intended to be legally restricted, except in the particular cases specially provided for. (d) But for this, indeed, para. 33 (e) would be almost unmeaning ; and the next paragraph(/) which VijfA- nesvara explains (Sec. 5, pi. 1, ibid, 392), as relating to self-acquired property, would be superfluous, if the father could give any share he pleased to any son. So too would the permission (Sec. 5, pL 7) to the father to reserve two shares of such property for himself in making partition suo motu. Sec. 5, pi. 10 (^) restates the son^s right in the fethert as well as the ancestral property ; and the object of the dis- cussion at that place being to restrict^ the scope of the texts affirming the son^s dependence, not to extend the father's power, it would not be reasonable to extract from it a con- tradiction to the principles in Sec. I., which it is plain, from para. 33 of that Section, that the author did not intend, (h) His view was apparently that which Dev&nda Bhatta adopt-
(a) I. L. R. 1 AU. 394.
(b) Stokes, H. L. B. 375.
(c) Stokes, H. L. B. 376.
{d) In the Panj&b it appears that an owner cannot in some districts give away his immoveable property whether ancestral or self- acquired without the consent of his sons or male gotraja-sapindas. See Panj. Oust. L. Vol. II. pp. 164-166.
(e) Ibid. 377.
(/) Sec. 2, para. 1, ibid, 377.
(g) Ibid. p. 393.
{h) See the Smriti ChandrikA, Ch. II., Sec. 1, para 22 ; D6yakrama Sangraha, Oh. YI. para. 11, 14 (Stokes, H. L. B. 510, 511).
IFTBODUOnON.]] LIMITATIONS OP PROPBETY. 211
ed,— a view illustrated by the cases of women and minors,— ownership with joint executive power as to ancestral, without it as to paternal property, vested in the sons in virtue of their soQsliip. (a) At the same time N&rada excludes a parent's gift from partition. Mit. Ch. I. Sec. 1 , p. 1 9> (6) and Yftj n. (II. 124), says '* Whatever property may be given by the parents to any child shall belong to that child/' So also Vyasa in Coleb. Dig. Bk. V. T. 364. This is allowed by Vijnanesvara to qaaUfy the rights of other children (Mit. Ch. I. Sec. 6, pi. 13, (c) and would possibly, notwithstanding Ch. I. Sec. 2, pi. 13, U(d) cover the cases of Sital v. Madho, and Baldeo Das v. Bham LaL {e) These assign to the father a power of disposition e^en over the ancestral properly, qualified only by the son's right to call for partition, which does not seem reconcileable with Mit. Ch. I. Sec. 1, pi. 29 (/) or with Sec. 5, pi. 9 (ibid. 893) . ig) The passage quoted from Coleb. Dig. Bk. V. T. 433, Comm. : '* They (the sons) have iK)t independent dominion, although they have a proprietary right,'' is a statement of the BQpposed doctrine of VeLchaspati Misra as to self-acquired property, in an argument which construes the text, Yajn. n. 121, Coleb. Dig. Bk. V. T. 92, in a sense diflferent from that insisted on in the Mit» Ch. I. Sec. 5. (h)
Prof H. H. Wilson observes on this subject, in Vol. V. of his Works, at p. 74 — " We cannot admit either, that the ovnier has more than a contingent right to make a very
(a) See Colebrooke at 2 Str. H. L. 43^.
(h) Stokes, H. L. B. 373.
(e) Stokes, H. L. B. 396 ; comp. «iipra, p^ 194.
(d) Stokes, H. L* B. 380.
(«) I. L. R. 1 All. 394 and 77.
(/) Stokes, H. L. B. 376.
ig) See 1 Str. H. L. 122 ; 1 Macn. H. L. 14.
{h) Stokes, H. L. B. 391. 5«e Coleb. Dig. Bk. II. T. 15, Comm.; Viv&da Chin. pp. 226, 72, 76, 79, 250, 309 ; B. Beer Pertab Sahee v. M. ^jender Periab Sahee, 12 M. I. A. 1 ; Bhujangrdv v. Mdlojvrdv, 5 Bom. H. 0. R. 161, A. 0. J. ; Lakshman Dddd Nadk v. Rdmckandra J^ddd Ndik, I. L. R. 1 Bom. 561 ; 2 Maon. H. L. 210; Mahasoohh v, ^^ree, 1 N. W. P. R 57. As to care for a son unborn, see 6 M. I. A. at p. 320.
212 LAW OP INHEEITANCB. [bOOK I.
unequal distribution of any description of his property, without satisfactory cause. The onus of disproving sach cause^ it is true, rests with the plaintifE, and unless the proof were too glaring to be deniable, it would not of course be allowed to operate. We only mean to aver that it is at the discretion of the Court to determine whether an unequal distribution has been attended with such circumstances of caprice or injustice as shall authorise its revisal. It should never be forgotten in this investigation, that wills, as we understand them, are foreign to Hindft law."
As to the attempted validation of such a distribution on the principle of factum valet, he says, ibid. p. 71 — " It is there- fore worth while to examine this doctrine of the validity of illegal acts. In the first place, then, where is the distinction found ? In the most recent commentators, and those of a peculiar province only, those of Bengal, whose explanation is founded on a general position laid down by Jimfltavahana ; 'therefore, since it is denied that a gift or sale should be made, the precept is infringed by making one: but the gift or transfer is not null, for a fact cannot be altered by a hundred texts/ Dayabhaga, p. 60. (a) This remark refers, however, to the alienation of property, of which the aUenor is undoubted proprietor, as a father, of immoveable property if self-acquired, or a coparcener of his own share before partition: but he himself concludes that a father cannot dispose of the ancestral property, because he is not sole master of it. ' Since the circumstance of the father being lord of all the wealth is stated as a reason, and that cannot be in regard to the grandfather's estate, an unequal distri- bution made by the father is lawful only in the instance of his own acquired wealth/ Nothing can be more clear than JimAtav4hana's assertion of this doctrine, and the doubt cast upon it by its expounders, Raghunandana, Sri Krishna Tark&lank&ra, and Jagann^tha is wholly gratuitous. In fact
(a) Stokes, H, L. B. 207.
INTBODUCnON.] THE TESTAMENTARY POWER. 213
the latter is chiefly to blame for the distinction between illegal and invalid acts/'
§ 9.— THE TESTAMENTARY POWER.
"In Hindft Law,^ as Sir H. S. Maine says, (a) '^ there is no such thing as a true will. The place filled by Wills is occupied by Adoptioa/' The learned author shows that a will when invented by the Romans '^ was at first not a mode of distributing a dead man's goods, but one amongst several ways of transferring the representation of the household to a new Chief/' (b) The subordinate position to which amongst the Romans the Religious was reduced, as compared with the Civil, law, distinguishes it from the HindA system. In the latter, too, the pair ia potesias has never perhaps been allowed to go the extravagant lengths which were long tolerated by the Romans, (c) A man's wife and his child are his " own,'' but in a sense, as Jaganndtha explains, quite different from that in which property is his own. (d) The equal right of sons in the patrimony being recognized, and the right to
(a) Anc. L. Ch. VI. p. 193 (3rd Ed.). See Col. Di. Bk. V. Ch. I. Art I. Note. See above, p. 181, and the remark o£H. H. Wilson, p. 212 .
(b) Op. ciL 194. In England the estate seems in early times to have been completely represented by the heir. The system of tenures made a nniversal succession impossible when different fends were held from different lords, bat the executors still take a qnalified " universitas " in the personal estate.
(c) See Nftrada, Pt. I. Ch. III. 36 ss. Ownership of property was at least very early distinguished by thd Hindis from the relation of a father to a son. See Vyav. May. Ch. IV. Sec. I. paras. 11, 12 ; Ch. I2C. para 2. The destruction or ezposnre of infants, especially of females, was disapproved perhaps, but tolerated without severe oeneare in both Greece and Borne. The sacredness of the hunoan being as such is a Christian doctrine ; but mere humanity has in this respect given to the HindA ethical system a great advantage over claasical paganism or the defective civilization of China. See Terence, Heaat, IV. I. 22 ; Schoeman, Ant. Gr. p. 601, 104 ; Mann IX. 8, 45 ; Coleb. Dig. Bk. I. Ch. V. T. 188, 219.
{d) Col. Dig. Bk. III. Ch. IV. T. 6, 7, Comm.; Vya. May. loc. cU.
214 LAW OP INHERITANCE. [bOOK I.
subsistence of all at any rate who are under the potestoi or lordship of the head of a family, (a) he is not allowed as he was at Rome and at Athens, too^ to reduce them to want by selling or otherwise disposing of the estate. (6)
The first intention of wills at Rome was probably to provide successors when natural heirs failed, then to provide for mem- bers of the family excluded by the rigorous provisions of the law of inheritance from their due share in a testator's proper- ty; it was only as a corrupt abuse that they were employed to disinherit the heirs, a purpose considered so unnatural and unlikely that it had to be expressed explicitly in order to ob- tain effect, (c) At Athens there seems to have been fall power of alienation by a householder inter vivos ; (d) but he could not by will disinherit his heirs — ^not even his daughter as heiress — though he could practically bequeath her and the estate together to some one who would take her as wife. The English law, a century after the Conquest, disallowed a will or a death-bed gift of the patrimony without assent of the heir, (e) and regarded it as inseparably united to the
(a) Col. Dig. Bk. II. Ch. IV. T. 11, 12, 15. 18, 19, Comm. ; 26 Comm. ; Yftjn, II. 175 ; 2 Str. H. L. 16. For the case law, see 6k. 11. Introd.
(b) In Attica the older law seems like the older Hindii law to have allowed mortgage, or rather a vivum vadiuni, but not sale, and in general " a remarkable recognition was shown of the necessity of guarding against the snb-division of property, of maintaining each family in possession of its ancestral estates .'* 8ee Schoeman, Ant. Greece, pp. 323, 104. Under the earlier English as under the Hindii law an interest of the son even in pnrchased lands was recognized so that the father could not wholly disinherit him. See Glanv. p. 142 (Beames's Transl.) ; Mit. Ch. I. Sec. I. para. 27 ; 2 Str. H. L. 10, 12.
(c) Maynz, Oours de Droit Eomain, III. 236 ss. Comp. Vyav. May. Ch. IX. paras. 6, 7; Col. Di. Bk. II. Oh. IV. T. 15 Comm. Perhaps, as under some of the Barbarian Codes, no mode could be devised for the alienation of the patrimony which did not take the guise of an heirship replacing the real one.
(d) See Smith's Diet, of Ant. Tit. Heres.
(e) Glanville, pp. 140, 141, 165. Blackstone approved the watrio- , tions, 2 Comm. 373.
INTEODUCnON.] THE TESTAMBNTAET POWER. 215
fmilj. *' Si bocland habeat qaam ei parentes dederint, non mittat earn extra cognitionem SDam/' (a) The earlier ideas still prevail amongst the HindAs. They still regard with horror the disinheritaDce of a son unless he has proved Umself an enemy of his father, from whose celebration of ihe Sradhs no spiritual benefit is likely to arise, {b) Failing a son by birth the simple expedient of adoption provides one who can equally rescue his adoptive ancestors from the vexations of " Put/' Even in the absence of a sou there is an elaborate and far-reaching scheme of succession provided hj the law which disposes of the estate^ and at the same time provides for the sacrifices which it was the part of the deceased owner in his life to maintain^ and which after his death he is entitled to share. The need for a universal successor created by appointment having thus not been seriously felt, ingenuity has not been stimulated to furnish the appropriate remedy. It would be seldom indeed that an heir would not be forthcoming ; the duties and obligations of the deceased are attached by the law to his representatives and to those who actually take his property, (c) and a system of free testa- mentary disposition tends to lessen those pious grants for religious and charitable purposes to which a proprietor resorts rather than leave his estate quite ownerless, and by which he at once improves his own chances of comfort in the other world and the means of comfort in this world for some mem- bers of the most revered and influential caste, (d)
(a) LI. Hen I. Cap. 70.
(6) Col Dig. Bk. V. T. 318, 320, Comm.
(c) See Ndrada, Pt. I. Ch. III. 22, 25 ; Vyav May. Ch. V. Sec. IV. para. 12—17 ; and Comp. Glanv. Ch. VIII. ; Bract. 61 a.
(d) Col. Dig. Bk. II. Ch. IV. T. 35, 36, 41, 42. 64.
The English law as to saperstitious uses is not in force amongst Hindus. See The Advocate General v. VishvoT^th Aimdrdm, 1 Bom. H. C. R. IX. App., where this sabject is elaborately discussed. Several cases of the enforcement of Hindti charitable trusts are referred to in the preceding article. Reference may be made to Fdimdbibi v. Adv. Gen.^ I. l. R. 6 Bom. 42, 50, for the principles governing this
216 LAW OP INHERITANCE. [bOOK I.
The system of partition at the will of a son or other co-sharer must be admitted as another reason in the pretty wide region in which it was accepted why the necessity for wills did not become pressing. The emancipated son amongst the Romans was wholly severed from the family, was as an utter stranger to his father and his estate. In India tbe separating son must be endowed with a real or at least a fictitious share of the property accepted by him as his fair portion. If a general partition has been made he retains a right of inheritance. Inheriting or not inheriting property he must offer sacrifices and pay his father's debts, (a) The looser and less tyrannical constitution of the family which the humaner spirit of the Hindds has framed as com- pared with that of the fierce Boman spearmen has thus made most of the arrangements possible inter vivos, or provided for them after death, which would strike the householder as desirable. Custom, immensely influential even when not consecrated as a law, disapproves contrivances which would set aside its own suflicient rules ; and while the nearest successors cannot be excluded from the patrimony and its accretions, (b) the imposition of conditions and limitations
class of cases. The Hindti law, like the Mahomedan law, instead of regarding religions grants with jealousy treats them with special favour, see above pp. 99, 197 ; Co. Di. Bk. II. Ch. IV. T. 35 ss.; though they are not to be used as a mere cloak for private perpetuities (above, p. 184, 200) ; nor must they be made a means of reducing the family to want (above p. 194; Co. Di. B. II. Ch. IV. T. 10, 19, Comm). The interest of the State in religious endowments is asserted (Nfirada, Transl. p. Ilt5), but no limitation as to time has been imposed on grants by the HindO law analogous to the English statute 9 Geo. II* Cap. 36, or the Mahomedan law restricting the " marz ul mawat."
(a) N6rada, Pt. I. Ch. III. 11. See now supra, y. 80.
{b) The Mit&kshar&, Ch. I. Sec. I. para. 27, disenables a father from alienating even his own acquisitions of immoveable property without the sons' concurrence, as they have a right by birth in both the ancestral and in the paternal estate. See Tara Chand v. Reeb Ram, 3 M. H. C. R. at p. 55; though this doctrine has not been accepted in Bombay. For the present law, see p. 208, and Bk. H- Introd. § 7 A, 1 n, with the cases there cited.
INTRODUCrnON.] THE TESTAMENTAET POWER. 217
creating rights in favour of persons who do not exist to take them is opposed to Hindfl conception, (a) The now com- mon direction that a property given t>r devised shall not be divided or alienated cannot be stronger than the ancient law to the same effect(&) ; and as the one is over-ridden by the conjoint volition of those interested, so too is the other. The immediate passing of a right from the creator of it to the beneficiary is as essential to its passing at all by force of the intention^ (c) as onder the EngUsh law the absence of any interval between a preceding estate and a remainder was requisite to make the latter good. The estate under the HindA law like an English freehold at Common Law cannot be made to commence infuturo^ but nefther can it be con- ferred save on some existing subject of the right for whose benefit the entry or acceptance of the taker of the immediate particular estate may enure, (d) Conditions suspending the completion of a gift on a contingency make it inoperative save as a promise, (e)
These considerations as they show that an executory devise as distinguished from a remainder could not properly be received into the HindA system, may serve to account for the absence of any general craving for a testamentary power. Such a power is looked on not as a part of the order of nature, as speculative jurists in Europe have regarded it, but rather as opposed to the order of nature ; (/) and the great
(a) See above, p. 179 ; and Ram Lai Mookerjee v. Sea-etary of State for India, L, R. 8, 1. A. at p. 61.
(b) See Col. Dig. Bk. V. Ch. I. Art. I.
(c) Datt. Mim. Sec. IV. para. 3.
(d) Jagann&tha strives to make oat that thero canb^ present gift o! property not taking effect until after the donors death. He employs two arguments for this purpose ; bnt he does not deal with the question as even a possible one, of whether a bonnty can be conferred on a non-existent person. See Col. Dig. Bk. II. Ch. IV. T. 43, 56, Comm.
(e) See above, p. 179.
(/) Comp. Plato, Laws, XL, and Grote's Plato, III. 434. 28h
218 LAW OF WHiifcrrANOE. [book I.
aconmnlations of separate property on which a will oonld Bsieij be made to operate were until recentiy t^ost unknown. Unless^ too/ the testator could mould the estate more fireely than by a mere remainder of the property acquired by himself^ it would but insufficiently serve tbe purposes which in modem times people try to effect by means of executory devises. He might choose amongst the living the objects of his bounty, but could not, as English equity allowed, create rights opposed to his Common law.(a) Such a limited power not substantially exceeding what he could do by gift, with or- without a reserve in his own favour, was hardly worth striving for.
The Boman law allowed a paterfamilias >tP name the oonti-* nuator of his own civil personality. The English law now allows the creation of an estate without actual change of possession. Both are opposed to Hindu notions ; the reli* gious law prescribes who shall perform the sacrifices, who shall be heir or joint-heirs; it recognizes no actual transfer of an ownership of material objects without a change of the possession in the enjoyment of which the exercise of the right consists. Without this change there is an equitable right, but it avails not against actual delivery to one accept- ing without fraud, (i) But in the case of a will there can be no delivery to make the gift effectual, (c) An entry by a devisee is not the counterpart of a resignation by the pre- ceding holder in which his volition to give up his right is
(a) See above, pp. 178, 180, 184.
{b) LaUubTuxi Surchand v. Bai Amiit, I. L. R. 2 Bom. 299. See Index, Possession ; Y&jn. II, 27 ; and Mit. ad loc.
(c) Jagannfllha argues for a sort of constittdum po8$es8oriuni {see Savigny, Possession § 27) as being sufficient to complete a gift. See Col. Dig. Bk. n. Ch. IV. T. 13, Comm. j T. 56, Comm. But the right fn these cases passes by a consentaneous volition of both parties which extends to a mental transfer and retransfer of the actual possession impossible in the case of a true testament, though effec* tual in the case of a Mniyu PcUra, as will be seen below. See Col. Dig. Bk. V. Ch. I. Art. I. Text cited fix)m Dhaumya, and C<«nmeiitaiy.
IHTBODUCTION.] THE TISTAMBNTABT POWER. 219
gim1lIta^60lla with his releasing of the physical detention to tbe donee. There is hardly even a moral rights as the ntter- anoe of the voHtion has been deferred nntil it conld not amoont to a promise or engagement. A will therefore in the modem English sense could no more take effect than a gift without delivery. Piety might induce the heirs to conform to it^bni) there wonld not be any right in rem enforcible against them, (a) As a will therefore could neither serve its earlier purpose under the Soman law^ nor its modem purpose arrived at by gradual development from that earlier one, it is not surprising that it should not have been invented or developed from the somewhat analogous instruments which were effectual because they conformed to the spirit of the Hindft law. A donatio mortis cavsa is recognized, and on this Jlmdtav&hana has attempted to found heritage as an implied gift by the owner; (6) but, as Jagann&tha observes, the comparison fails in as much as in heritage there is no surrender with a corresponding acceptance of the owner's property.
At present, as we have seen, a Hindtt's power to dispose by will of whatever property was absolutely his own must be considered as finally established, (c) It is only necessary to bear in mind that he cannot defeat by will the rights which sabsist independently of his wishes, (d) and that he cannot
(a) Seisin being requisite to an effectual gift of land under the early English law, a testamentary disposition of it was invalid with- out the consent of the heir. Glanv. p. 140, 141. It will be remem- bered that Tacitus observes on the absence of wills amongst the Germans. Family and tribal rights took instant effect on the death of the late owner.
[h) Col. Dig. Bk. V. Ch. I. Sec. I. Art. I.
(e) See above, p. 18L This excludes a testamentary disposal of property held by others in common with the testator. Vdeudeo Bk<T. Venkiesh Sanbluxv, 10 Bo. H. C. B. 139, 167; 9ee also Vrand^- ««i(W« V. Yamwnabm, 12 Bo. H. C R. 229, referring to Gangdbm v. Bowonnd, 3 Bo. H. C. R. ^6 A. C. J.
(d) See LakshTnan Dddd Ndik v. Mmchandra DadA Nadk, L. R. 7 !• A. at p. 194 ; Vitla Buttm v. Yammanma^ 8 M. H. C R. 6.
220 LAW OP INHBBITANCB. [BOOK I.
create interests or impose restrictions whicli the Hindu law does not recognize. Nor can the Hindft testator get rid of those claims to subsistence (a) as to which he is allowed a large discretion so long as he satisfies them at all, but which may be turned into defined charges when there is an attempt to evade them altogether. (6)
Though wills are unknown to the Hiudii law, mrityu patras are common. These are of the nature of a conveyance to operate after the death of the grantor, (c) or immedi- ately subject to a trust in his favour for his life, (t?) Devises of land under the Statute of Wills, 82 Hen. VIII., c. 1, were formerly regarded as of a similar character. The will was of the nature of '' a conveyance passing the freehold according to the intent or declar- ing the uses to which the land should be subject.*' (e) *Similarly under the Roman law '^ the mancipatory testa- ment,'* as it may be called, differed in its principles from a modem will. As it amounted to a conveyance out and out of the testator's estate it was not revocable. There could be no
(a) See Col. Dig. Bk. II. Ch. IV. T. 7 ; H. H. Wilson, Works. V. 68.
{b) See pp. 79, 80, and the Section on Maintenance; Narhadahdi V. Mahadev Narayan, I. L. R. 5 Bom. 99, and the references.
(c) See Col. Dig. Bk. II. Ch. IV. T. 43, Comm. ; 2Macn. H. L. 207.
(d) The one qnoted in Rdglw Govind Pardjpe v. Balvant Amrii Qole, P. J. for 1882, p. 341, provides for payment of the grantor's debts, and sets forth a provision for his declining years as a purpose in view, but does not explicitly impose this as an obligation on the grantee. In the one qaoted in Rdmbhat v. Lahshman Chintaman, I. L. R. 5 Bo. 630, there is a conveyance to the donee coupled with the reservation, " As long as I live I will take the profits and you should maintain me as if I were a member of your family." It was held that this was a conveyance subject to a trust. The grantor after- wards sought to get the deed set aside. He adopted a son pendente liU^ and the son was allowed to sue the grandson of the donee who had obtained a decree in his favour and possession in the suit brought by the donor. It was held, however, that the gift, as the deed contained no power of revocation, could not be recalled.
(e) Spence, Equity Jurisp. vol. I. p. 469; 6 Cr. Dig. 6.
INTBODUOTION.] THE TESTAMENTARY POWEB. 221
new exercise of a power which had been exhausted, (a) TV ills were allowed by the XII. Tables; and the essential ceremonies were gradually modified by the exercise of the pi-aetorian equitable jorisdiction^ as in England the Court of Chancery showed '' unbounded indulgence to the ignorance^ unskil* fuhess, and negUgence of testators/' (6) It is proba- ble that the mrityu patra of the flindds would under the influence of equitable doctrines have received a corres- ponding development from the English courts. Thus though Jagannatha insists on a transfer of possession^ or at least the semblance of a transfer to make the donation good^ yet means would no doubt have been found to give efEect to the transfer without an entry. That a devise should " import a consideration in itself,^' would not be necessary according to Hindi! notions^ (c) but a change of possession is essential to a valid gift^ (d) and this has to be dispensed with in giving eflfect to an ordinary will as now construed. But he who takes possession may conformably to Hindfl principles take it for himself and as agent for another, or in trust for another as by way of remainder ; and in this way estates for any Ufe in being, as they could be created by ordinary grant and acceptance, could be created by mrityu patra. (e) In the Presidency towns the ready-made system of England has in a great measure superseded the indigenous instru-
(a) Maine, Anc. Law, Ch. VI. p. 205. (3rd Ed.). See Clark, Early Rom. Law, p. 117 ss.; Mommsen, Hist, of Rome, Ch. XI. Engl. Transl. vol. I. p. 164.
{h) Spence, op, cit
(c) Still an undivided co-sharer cannot dispose of his share by gift or bequest. See Lakshmishankar v. Vaijndth, I. L. R. 6 Bom. 25 ; Rdrribhai v. Lakshman, I. L. R. 5 Bom. 630. But that is on account of the inefl&cacy of his single will in dealing with what is not his sole property. See Mit&kshar&, Ch. I. Sec. II. para. 30 ; Coleb. Dig. Bk. n. Ch. IV. T. 28, Comm.
(d) Y&jn. II. 27 ; N&rada, I. Ch. IV. paras. 4, 18 ; see Transl. pp. 23, 25, and Corrigenda ; Coleb. Dig. Bk. II. Ch. IV. T. 32, and Comm.
(^) Oom^. Ram LallMookerjeey, Secretary of State for India, L. R. 8l.A.atp.61t
222 LAW OF INHBBITANOE. [bOOK I.
ment. Still even there mrityu patras occur^ at least in the city of Bombay, and in the mofossil they are common. Many which come into the conrts are of an age that n^atives the supposition of their being a mere adoption or imitation of the English will, (a) They are construed with as little re- gard as may be to technical rules, but the trust or use created by such an instrument is not now deemed void or revocable on a failure of the trustee to fulfil his duty : (&) he is instead made to do the duty he has accepted, (c) The greater power and expertness of the courts under the British role make a complete satisfaction of justice possible in this way, or at least a greater approximation to it than by the strictly HindA method of taking back the property when the pro- mise or alleged promise upon which it was given and taken has been &lsified. {d)
As to the form, a nuncupative will is effectual ; (e) and so is a parol revocation. (/) But as a will is a unilateral document
(a) As some have accounted for the testament used in Bengal. See Maine, Anc. Law, p. 197 (3rd Ed.)- Wills became common in Bengal really because of the view held there that each parcener in a nnited family had a distinct though undivided portion and could dispose of it by gift and consequently by will. See Coleb. in 2 Str. H. L. 431 ; D&yakrama Sangraha, Ch. XI.
(6) This is not in any way inconsistent with the principles of the Hindd law. See the distinction drawn by Jagann&tha between the property held by a hnsband in trust for his wife and the subordinate dependent property of the wife in her husband's ordinary estate. Col. Dig. Bk. II. Ch. IV. T. 28, Comm.; T. 30.
(c) Nam Narain Singh v. Bamoon Paurey, 23 C. W. E. 76.
{d) N&rada. II. IV. 10 ; Col. Dig. Bk. II. Ch. IV. T. 63 Comm., T, 56 Comm.,T. 65 Comm.; Vivdda Chint&mani, pp. 83, *84; Vyav. May. Ch. IX. 6.
(e) Bhagvm DuUahh v. Kola Shankar, I. L. R. 1 Bom. 641 ; Mancharji Peatonji v. Narayan Lakshumanji, 1 Bom. H. C R- 77 (2nd Ed.) and the cases there referred to.
(/) Malw,raj Partah Narain Singh y. Maharanee SooihaKooer et ah L. B. 4 1. A. 228. For the statute law, see below.
According to the English Common Law lands deyisable by custom might by custom be devised orally, Co. Lit, 111 A., and this continued
INTBODUCnON.] THE TB8TAMENTABY POWER. 223
op^^ting on the priDciple of a gift^ it would seem that where the statute law has not prescribed a mode of authen- tication the mode followed in analogous cases ought to be foflowed. In EAdhabai v. Gcmesh (a) it was ruled that the common direction given in the Vyav. May. Oh. II. § 1, para. 5^ does not apply to a Hindi's will as that is a document not recognized by the Hindft law. That direction is that a document recording a purchase^ gift^ partition^ or the like should either be a holograph of the person to be bound by it; or else signed by him and by witnesses including the writer, who are intended to attest not merely the signature of the party but the transaction and the writing itself which is usually, though not always, read out to them. (6) This was formerly the case in Europe also, (c) Custom, however, is recognized as governing the mode of proof, (d) and by mntnal assent of the parties a document may be proved by a single attesting witness, (e)
until by the Statute of Frauds (29 Oar. II. Ch. 3) writing attested was made necessary. For personal property a nuncupative will sufficed till long afterwards. The law now regulating English wills is 7 Wm. 4 and 1 Vic. c. 26.
(a) I. L. R. 8 Bom. 7.
ib) Col. Dig. Bk. II. Ch. IV. T. 33, Comm. See Mit. in Macn. H. L. 269 ss.
(c) See Laboulaye, Hist, du Dr. de Prop. p. 381 ; Bracton, 38, 396 ; Co. Lit. 6 A. In Canciani's " Leges Barlmrormn," vol. IL p. 475, are two Lombard formulas, one showing that land conld not be sold except under absolute necessity, and the other that a convejrance was established by reading it out in Court and calling on the by- standers to witness the transaction,
(d) See Col. Dig. Bk. I. Ch. I. T. XDl. ss. ; Bk. IL Ch. IV. T. 33, Comm.; and the S&stri's response in Doe v. GanpaU Perry's Or. Ca. at p. 137.
(e) Vyav. May. Ch. II. § in, para. 3.
The Boman testamentum - Comitiia Calatis, even when oral, as it seems at first to have often been, was a very ceremonious proceeding, checked by the presence of priests and tribesmen. "Wills being now J^ecognized it may be expected that the forms attending them will ere long become uniform, as the statutes intend. See the case oited ^^ (b) next page.
224 LAW OF INHEBITANCB. [boOKI.
In the Presidency of Bengal and in the cities of Madras and Bombay, Act XXI. of 1870, by making Sec. 100 of the Succe8sionAct;x:. of 1865, applicable to the Wills of Hindiifl,
has rendered a bequest invalid '^ whereby the vesting
may be delayed beyond the lifetime of one or more persons living at the testator's decease, and the minority of some person who shall be in existence at the expiration of that period, and to whom if he attains full age the thing bequeathed is to belong.^' This contemplates a power of disposition extending further in time than the Hindfl law allows, as by that some one in existence at the testator's own death must be the ultimate legatee, (a) Section 102 of the Succession Act makes inoperative a bequest to a class which may be not finally completed within the prescribed time, and Section 103 annuls a bequest made to take effect after or on failure of a prior bequest which the Act declares void, (b) These are not rules of the Hindd law, and are rather opposed to its principles, which, once its conditions have been satisfied, point rather to those who are capable of benefiting by the intended bounty being taken as the class intended rather than to its failing altogether, and to a remoter bounty being accelerated rather than destroyed by the nullity of an intermediate one, as the delivery in a gift to any other than the donee is conceived as made to him as agent for the donee conceived as existing; but the rules must be all the more carefully borne in mind by the student. It has been held (c) that the effect of Act XXI. of 1871 is to make the rule of construction laid down in the Tagore case inapplicable to Hindu Wills made subsequently to the Act, but this has been reversed. By Sec. 3 of Act XXI. of 1870 it is said " that nothing herein contained shall authorize
(a) See the Tagore Case, L. R. S I. A. 47 ; S. C. 9 Beng. L. R. 377; Sir Mangaldds Nathubhoy v. Krishndbdi, I. L. R. 6 Bom. 38.
{b) CJomp. the observations of Pontifex, J., in Cally NcUh Naitgh Clu/wdkry v. Chimder Nath Naugh Chowdhry, I. L. R. 8 Calc at pp. 888 88., and in Sovdamvney Dossee v. Jogesh Ckunder Dutt, I. L. R. 2 Calc. 262, with Alangamonjari Ddbee v. So7iamoni Dahee, I. L. R. 8 Calc. 157.
(c) Alangamonjori Dahee v. Sonamoni Da5<3e,I.L.R.8Calc. 157,637.
nmtoDuonoN.] the tbstamenitaet power. 225
a testator to bequeath property which he could not have alienated inter vivos or to deprive any person of any right of maintenance.... «...• And that nothing herein contained shall
Yest in the executor or administrator oiny property
wluch finch (deceased) person could not have alienated irder vivos.^^ ''And that nothing herein contained shall
authorize any HindA to create in property any
interest which he could not have created before the 1st September 1870.'' (a) By Sec. 4 of Act V^. of 1881, however, "all the property*' of a person deceased vests in his exe- cutor or administrator, ''but nothing herein contained" it is said, " shall vest in an executor or administrator any property of a deceased person which would otherwise have passed by survivorship to some other person." (b) Instead of the power of alienation inter vivos, therefore, we must now look to survivorship for determining whether an executor takes the property of a testator. By Sec. 4 coupled with Sees. 2 and 3 it appears that the estate may be vested in an executor who at the same time cannot obtain probate. The will, too, if made outside the cities of Madras and Bombay and dispose ing of property outside those cities, may be truly such within the definition given in the Act, at the same time that none of the provisions of Act X. of 1865 apply to it, which under Act. XXI. of 1870 apply to wills made in those cities or disposing of immoveable property within them. It will hence be necessary in the mofnssil to consider what under the Hindi! Law amounts to '* a legal declaration of the in- tentions of the testator with respect to his property," without regard to the provisions of Act. X. of 1865, and apparently to recognize all his property as vesting in the
(a) These provisions govern Sees. 98, 99, 101 of the Succession Act. See the cases note (fi) p. 224.
(6) Previously it was said (for the Presidency Towns) " The Statute 21 Geo. III. C. 70, puts an end to the title of the administrator, as such, when set in competition with the right of the heir by ffindft law, and when it is in proof that all the parties are Hindtle" J^oedernQomlMsaore Seat v. Ramkissiw HazaraJh 1 Mori. Dig. p. 246 ; Mid see iMd, 246 ; 1 Taylor and Bell 10. 29h
226 LAW OF IKHlBrFAHOB. [bOOE I.
executor (a) except sncH as goes to his co-membero of a iinited feunily or others taking by snrviyorship.
Within the presidency towns or under a wiU made within them it would seem that the creation of a perpetuiiy for any purpose whatever is prevented by Sec. 101 of Act X. of 1865, while in the mofussil a will made there may create for religions or charitable purposes a perpetuity subject only to the condi- tions already noticed, (b) The statute law on the points just discussed is^ however^ so complicated and contradictory in principle that it is not possible to say with confidence what view may be taken by the Courts after argument. Under these circumstances it is perhaps fortunate that as lately ruled^ (c) the law does not oblige a person claiming under a will in the mofussil to obtain probate or to establisk his right as executor^ administrator or legatee before he can sue in respect of any property which he claims under the will in the mofussil.
The effect of a will on the mutual relations of those taking under it has already been partly considered, (d) In Tara Chtmd T. Beeh Bam^ {e) an illegitimate half-caste^ devised property which his European father had given to him^ to his three sons^ who took their several shares as separate estates. On this Holloway, J., says " We can see no ground whatever for doubting that the property which came to the first defendant
(a) L 6. where there is one ; and where there is not, in him who obtains administration. Act V. of 1881, Sees. 4, 14. (6) Tagore Case, L. E. S. I. A. at p. 71.
(c) Bhagvdtiaomg Bhdrdji v. Bechardds Earjwctndas, I. L. R- 6 Bom. 73. If he sues as executor or administrator he mnst of oooisd set forth his qualification. See Civ. Pro. Cod. See. 60. As a legatee where probate is possible he will apparently be bound by the condi- tion in Section 187 of the Succession Act.'as probate and adnimiB<a»- tion operate from the moment of the testator's death to vest the property in his representative thus constituted. See Act V. of 1881, §4,12,14.
(d) Above, pp. 195, 196. (e)3Mad.H.C.B.50.
INTBOmTOnON.] THE TESTAMENTABT POWEB. 227
from hk &ther is^ as he bimsdf treats it^ ancestral property. It seems to us that there is no reason whatever in the con- tention that its qnahty was changed by his choosing to accept it apparently under the terms of his father's will. Still less ground would there be for the contention that his acqaiesoence in that mode of receiving it would vest in himself a larger estate than he would have taken by descent. On what princi** pie can he be conceived capable^ by any act of his^ of depriving his children of a right given to them by the doctrines of the Mit&k8har& at the very moment of their birth 7 The argu* ment^ therefore that this property is unsusceptible of par- tition, because self-acquired^ seems to us to fail entirely/'
The property, however, if the Hindii law was properly applicable, as being a gift, ranked as self-acquired property of the half-caste father. It was only as such that he could dispose of it ; but as such he could and did dispose of it, and the three sons taking separately instead of jointly took by the will, that is according to the Hindft law by a gift recognized by the Courts as effectual though wanting one of the ordinary requisites. There was no partition amongst the three brothers; that would have indicated inheritance, and their shares would have been inherited property ; its absence shows that they took under the will only, and held their shares as property devised or given. Such property ranks for the purposes of the Law of Partition as self-ac- qnired, and it would seem that although the father (defend- ant) could not dissipate it so as to leave his son (the plaintiff) destitute, he could not be called on to divide it against his will On his death his sons would inherit equally, and an attempt to disinherit one of them without good cause would expose the vdll to a risk of being set aside as inofficious according to the recognized principles of HindA law. (a) In the case of Vindyah Wdsoodev v. Pa/rmdnundda (6) Sir 0. Sargent, J., held that where two brothers took equal shares in
(a) See Mit. Gh. I. Sec. 11. pmra. 14. {h) Uixreported.
223 LAW OF INHBEITANCE. [BOOK I.
property tinder their father's will, they constituting with their father an undivided femily, there would be great diffioulty in holding that they took as heirs an estate dif- ferent from what in the ordinary course would have descend- ed to them in that character. The father had been one of three brothers carrying on business in partnership, and two of the three had died after making wills, by which their shares came to the third. They were held to have been separate in estate^ and the survivor of the three to have taken the whole as self-acquired property. He could there- fore deal with it at pleasure, and his bequest of a lakh of rupees in charity was upheld. This judgment was aflirmed in appeal, and an appeal to Her Majesty in Council has been dismissed.
The extent to which a control of the devolution and of the enjoyment of property bequeathed by will is permitted, has been already discussed, (a) The construction of testamen- tary instruments executed by HindAs is governed by the Hindft law, and on this point the Judicial Committee have said " The HindA law, no less than the English law, points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition, nor, so far as we are aware, is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator's wishes ; but the meaning to be attached to them may be affected by surrounding circumstances, (6) and where this is the case those circumstances no doubt mast be regarded. Amongst the circumstances thus to be regarded, is the law of the country under which the will is made and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particnlar disposition a particular effect, it must be assumed that the
(a) See above, pp. 178, 181.
{b) See Barlow v. Orde, 13 M. I. A. 277 ; McyuMe Mdhomedy^ Shcwukram, L. R. 2 I. A. 7 ; and comp. Maniklal v. Manihtha, I- ^' R. 1 Bom. 869.
INTRODUCrnON.] THE TESTAMENTARY POWER. 229
testator^ in the dispositions wfaich he has made^ had regard to that meaning or to that effect^ unless the language of the will or the sorronnding oircomstances displace that assnmp*
iaon/'(a)
Similar principles are laid down in the Tagore case (b) in wUcIi it is farther said (c) " The trae mode of construing a will is to consider it as expressing in all its parts^ whetiier consistent with law or not^ the intention of the testator, and to determine upon a reading of the whole wiU, whether^ as- suning the limitations therein mentioned to take effect^ an interest claimed under it was intended under the circum- stances^ to be conferred/' As a will on the principle of further- ing a bountiful intention of the testator receives a benignant constniction as compared with the narrower construction of a document in which benevolence has had no part, (d) words primarily importing male lineal succession may be interpreted as conferring an estate of general inheritance, and when it is consistent with the language employed, a time will be chosen for the commencement of a future estate which will give effect to it, rather than frustrate the apparent intention, (e) Effect cannot be given to a devise merely to '^ dharm,'' that term being too vague, (/) but a bequest for specij&c chari-
(a) Sreem/uMy Soorjeemoney Dossee v. Denohwndoo Mullick, 6 M. I.
A. 650-561. A will expressed in English must be construed accord- ing to the intention as gathered from the English words, not accord- ing to the possible sense of the Yemac^lar words that may have been nsed in the instructions. See Oanghcd v. Thavar MuUa, 1 Bom. H. C.
B. at p. 75. English expressions are, it w^ould seem, to be construed according to the English law. See MarUn v. Lee, U M. P. C. 142. Bat regard must be had in the case of immoveable property to the rale that the language is to be applied according to the law of its place.
(6) Tagore case, L. B. S. I.'A. at pp. 64, 65, ss.
(c) Ibid, p. 79.
{d) Doe dem Oooper v. OoUU, 4 T. R. 294.
(e) See Bam LaU Mookerjee v. Secretary of State for Ind/ia, L. B. 8 L A. 46, 62; S. C. I. L. E. 7 Calc. 304.
(f) Chngbai v. Thivar MulUi MuOa, 1 B. H. C. R. 71.
230 LAW or INHBBITANCIE. [bOOKI.
table pnrpoBes recognized as beneficial by tlie Hind& law frill be maintained, as ex. gr. '^ for the performance of ceremomes and giving feasts to Brahmans/^ (a) The words '^ piitra paatradi krame^^ include female heirs as well as male descoid* ants of a female. A bequest, however, which has for its object to tie np the corpus and give the profits to male descendants is invalid, (b)
§ 10.— MAINTENANCE. .
In the firequent changes of fortune which occur under the British rule in India giving a new and wider field to indi- vidual activity, the claims of destitute dependants of families become more numerous and pressing, at the same time (liat the general prosperity is advancing. The loosening of old ties makes some members of the Hindii community less ready than formerly to provide for their indigent relatives, while the latter, advised by persons having some acquaiot- ance with the law and the decisions of the Courts, are led to prefer their claims in a more peremptory and inconvenient form than would at one time have been thought of. The family obligation resting on sacred and affectionate associa- tions could not be shaken or too rigidly defined without a good deal of undue harshness and encroachment being attempted on one side or the other. Hence the litigation arising out of claims for maintenance has become frequent as well as troublesome — troublesome chiefly becaose of the want of any exact boundary in this province between the duties enforced by the law and those imposed only by positive morality. Widows are the most frequent suitors for maintenance, owing to their helpless position daring coverture and the restrictions to which they are subjected in
(a) LakshimsJiankar v. VaijnMh, I. L. B. 6 Bom. 24; Dwd/rhani^ Bysach v, Bwrroda Peraad Bysack, I. L. R. 4 Cal. 443 ; a 0 jw^ disposal of a fond bequeathed for oharity would be quite in accordance with the Hindtl law. Comp. Ma/yor of Lyons v. Ak- Qen. of Bengal, L. B. 3 I. A. 32 ; and the oase I. L. R. 4 Galo. 508.
(&) Shookmoy Chundw Da$$ ¥. Monohari Dofsi, I. L. B. 7 Calo.269.
priBODijanoN.] maiotbnanob. 231
theirwidowhood^ but claims of children on parents as well as of parents on cliildren^ and oiher members of families on their oo-members are becoming common enough to make it deaiable to bring the principal decisions together and compare them with what can be gathered from the acknow- ledged Boorcesof the Hindi! law on the same class of subjects.
On the subject of the maintenance of widows^ three qaesidons have been judicially discussed since the last edi- tion of this work was published: — (1) Whether the right to maintenance can be asserted by a widow of a separated member. (2) Whether in a united family the right is dependent on the possession by those from whom main- tenance is sought of ancestral property or of property inherited from the deceased husband. (3) Whether, when the right exists^ the members of the husband's &mily can in ordinary cases satisfy it by affording board and residence to the widow as a member of their household^ or must at her option provide her with a separate income.
As to the first of these questions it is to be obsarved tirnt a partition does not e£fect such a total severance amongst the members of a Hindi! £Eanily that they stand tiienceforth in the relation of mere strangers to each other. They may reunite again: they have mutual rights of succession in which fuller blood relationship between severed brethren counterbalances the effect of reunion between those of the half-blood; (a) the obstacles to marriage still subrist be- tween their families ; in obsequies^ mourning and the cere- monial impurity arising from deaths they are still relatives as they w^e before tiie partition. A woman by marriage leaves her own gotra of birth to enter that of her husband. Her closest connexion thenceforward is with his family, (&) whose sacrifices she shares and who succeed ultimi^ly to
(a) Y&jfi. II. 139, and Yijfi&neiivara's Commentary ; Mit. Oh. n. Sec. IX. See Col. Dig. Bk. Y. T. 433> Comm.r andSomo^a Nddcen v. SUhamdlf L L. B. 2 Mad. 182.
{h) See Yasishtha, lY. 19.
232 LAW OP INHBBITANCB. [bOOKL
any property wUcli she as a widow may inlierit. With Iier own fiEimily her connexion is altogether of a remote and secondary character. It is not destroyed, as the humane spirit of the Hindfis fordids an entire rennnciation of the ties of blood, and in practice^ at least amongst the lower castes, the strong mutual affection of the wife and her parents is a source of much trouble to husbands, but in the law an in- exorable logic supported by sacred sanctions transfers with her person her duties and her protection to the family of marriage. In Sri Virdda Pratip Baghunanda Deb v. Sri Brozo KishwPutta Deb {a) the Privy Council say "The Hindft wife upon her marriage passes into and becomes a member of that (the husband's) family. It is upon that fianily that as a widow she has her claim for maintenance. It is in that family that in the strict contemplation of law she ought to . reside.^' (b) Her brothers therefore must " support her till her marriage, afterwards her husband shall keep her. When the husband is dead his kin are the guardians of his child- less widow : in disposing of her, in protecting and maintam- ing her they have fall power.'' (c) The word " isvarah,'' here translated " power," implies an attribute of superiority which is most conspicuous in the form of ckjtive authority, but which has a more comprehensive sense. It sometimes means husband and sometimes the Supreme Being. To say " they are to control, protect and support her as her lords" obviously imposes all these functions as duties on the kindred, (d) and the duties are in themselves unconditional. All these ideas indeed are involved in guardianship. The perpetual dependence assigned to a woman {e) is accom-
(a) I. L. R. 1 Mad. at p. 81; S. C. L. E. 3 I. A. 164.
(fi) See also per Loch, J., in Khetramam Dad v. Kashmaih Das, 2 Beng. L. R. at p. 20, A. C. J. ; Col. Dig. Bk. IV. Ch. I. T. 39; Bk. V. 499 and Gomm.; and comp. Maine, Anc. Law, Ch. V.pp. 153, 184.
(c) N&rada, XHI. 27, 28. See also N&rada as quoted by DeT&nd» Bha^a below.
{d) So in Btivee Bhudr v. Boopshankar, 2 Borr. at p. 725.
(e) Mann, V. 148 %s. ; IX. 2, 3; Yin. 416; Vyav. May. Ch. XX. para. 2.
iSTkODtJCnON.] ttAlNTBiNANCEl* 233
panied by an indefeasible claim to nurture, sbelter, and gentle usage, (a) Who are to satisfy this claim ? Primarily the family she has joined, not the family she has quitted, (b) The lattef comes next in responsibility before the burden arisiDg from utter destitution is thrown upon the caste and the community.
The general right of a widow to support according to the
means of her hiisband^s fainily is asserted by Newton and
Janirdana, JJ., in Sdkvdrbdi v. Bhav&ni Bije Oh&tge Zanjir*
rdv Deshmuhh. (c) In that case the family property had
been transferred by the SAtfird Government from an im»
provident father to his son, subject to a charge for the
father's maintenance. In extreme age the father married a
second wife Who on becoming a widow sued her step-*son foi*
maintenance. . He oflTered to support her in his house. The
Principal Sudder Amin thinking that the parties could not
properly be forced to live together and that it would be
equally wrong to allow the young widow to reside where
she pleased^ ordered the step-son to provide her with a
separate apartment in his house or in his village and to pay
her a monthly allowance for her support. The widow ap*
pealed against the amount of the allowance and the order as
to her residence, but the District Judge affirmed the decree
on the ground that she must be regarded as '* living on
enforced charity " and entitled only to "what will keep her.'^
This view the learned Judges of the High Court rejected*
They approved Sir T* Strangers statement that a widow is
entitled to a maintenance proportioned to the circumstances
(a) Manu, III. 55 ss.; Mit. Ch. II. § 1, paras. 7, 27, 28, 37 ; § 10, p. 14, 15; Vyav. May. Oh. IV. § 11, para. 12 ; Col. Di. Bk. V. T. 409 ; Str. H. L., 1. 171, 173, 175; II. 291, 297, 299.
{h) Bamim v. Condummali M. S. D. A. E. for 1858, p. 154 ; Pr. Co. in Sri Virada Pratap Baghunanda Deb v. Sri Brozo Kishno PvMa Deb, I. L. R. 1 Mad. at p. 81 ; Vivada Chintdmani, 261, 262, 266.
(c) 1 Bom. H. C. R. 1^4. 30h
234 LAW or IKHKBITAKCE- [BOOK L
of the family, (a) and sent down for determination tbe following issue, viz*: '^ Are the circumstances of thecasesnch as require that a separate residence or an equiyalent in money should be awarded to her (the widow) or should she be required to reside with the defendant J"
Here though the father as a prodigal had been deprived of the patrimony, and his second marriage had^ it was aUeged, been brought about by a trick in order to injure his son, yet the notion of the son^s repudiating the step*mother^s claim to maintenance seems not to hare occurred to anyone. The only question was as to how the maintenance was to be afforded. In the absence of exceptional circumstances tbe learned judges thought that it must be given and accepted in the household of the step-son* Step-mothers may perhaps be regarded as having distinct rights resting on special texts, (6) but their rights at any rate are recognized by tbe Sastras, (c) as on the other hand the stepson's succession to his step-mother's strldhana is also admitted«((2)
In Chandrabhigabai v. Kdsinath Vithal {e) the widow's husband had separated from his father and brethren. On his death she had received his property and bad expended it, as also her mother's property. Tbe Joint Judge in Begnlar Appeal held that the separation of her husband from his family bad deprived the widow of a right to maintenance ^ but on Special Appeal the High Court rejected this view, reversed the judgment, and remanded the case for trial on these issues — '^(1) Are the widow's present circumstances such as to give her a claim to maintenance ? (2) If she ispos' sessed of any property, what portion of it is her stridhana ? ''
(a) So BuljorBai v. ML Brmja, N. W. P. S. D. A. E. 1862, Pt. 11. p. 96. There however the family was united, and had aDcestral property.
(b) Bk. I. Ch. II. S. 14, 1. A. 3, Q. 1, footnote,
(c) 2 Str. H. L. 316.,
id) Bk. I. Ch. II. S.'U, I. A. Z, q. I. (e) 2 Bom. H. C. R. 323.
INTBODUOTION.] HAINTSNANOB. 235
Bj stridhana the learned Judges probably meant Bach as was not prodactive of an income^ such as to relieve the widow from indigence^ and so far free the defendant from bis obUgation. For the rest that obligation in spite of the partition which had taken place is recognized as binding.
In Timappi Bhat v. Paravtediriammd (a) it was held that the right of the indigent widow to support is not affected by a partition, though the award of a separate maintenance rests in the discretion of the Court. Reference was made to Bdi Lakahmi v. Lakhmidis {b) and to Mula v. OirdharilaL (c) In the District Court the case had been relied on of Mamedala Vencuthriahna y. Mamedala Vencut" ratnama, (d) and to local decisions which had shown the law in OskUBkrij where the case arose^ to be that the widow of a separated parcener was ei^titled to subsistence though her husband had died without ancestral property, and though the ex-parceners sued by her had none. The Madras case had ruled that maintenance could under such circumstances be claimed only in the house of the persons liable^ but the District Judge had treated this condition as one that the Court in its discretion might dispense with.
The Bombay cases just referred to were reviewed in BivitribAi v. Luximbdi, {e) The question is stated (/) to be : ''Can the plainti£f, not finding it agreeable to live in the house of her husband's uncle^ sustain this suit for a money allowance by way of maintenance against him who has separated in estate so £ar back as 1853^ from the branch of the &mily to which her husband and his father (SadasiVs brothers) belonged^ and who had no paternal estate in hia hands at the institution of this suit^ and did not^ and could
(a) 5Bom.H. G. R. 130 A. O.J.
(b) 1 Bom. H. C. R. 13.
(c) S. A. 8937, decided 6th July 1858. {d) M. S. D. A. B. for 1849, p. 5.
(a) I. L. R. 2 Bom. 573. See Apaji v Qangabai^ ib 632, (/) p. 581. See Madhavrao v. Qangaba/i, ib. 639.
236 LAW OP INHBBITANOK. [bOOE I.
not, so long as the plaintiff lived, inherit any property from her husband upon whom the estate (if any) of his fetber Balcrustna would have devolved ? '' The judgment proceeds on the two grounds, (1) that the plaintiff's husband and his father were separated from the brother of the latter sued as liable for the plaintiff's maintenance, and (2) that the de- fendant had not, when the suit was instituted, any ancestral estate or estate of the plaintiff's husband or his father. " Either one of these reasons, the Court say, independently of the other, is we think fatal to the plaintiff's claim to a money allowance."
Though the decision is thus limited to the denial of a right to a money allowance the reasoning extends to the denial of any claim at all by the widow of a separated mem- ber upon the other members of his family. Against the dictum in Timnjppa^s case that " the whole policy of the Hindi law is not to allow even a distantly related widow to starve '' (a) the learned Chief Justice urges that '^ for that proposition no other authority than the above cases (dis- sented from in his judgment) was mentioned by the Court." It would seem, therefore, that so far as any legal obligation goes the preservation of a widow from starvation in the case supposed is not now to be recognized as a duty incumbent on any one. Strangers humane interpretation of the Hindil law (h) must be received with this restriction. His obser- vations at p. 171 being limited to the maintenance of a widow as a charge on the inheritance (c) taken by other heirs, a thing that would not occur in a divided family as to an estate which in the absence of a son she must inherit herself, are not applicable to the point now under considera- tion. Should the estate prove deficient the learned author says the family of the husband are notwithstanding liable,
(a) See 1 Str. H. L. 175. (&) Strange's H. L. 67, 68.
(c) As to this see Lakshman Bamchandra v. Satyabhdmdbdh I- ^^ B. 2 Bom. 494 ; and Ndtchiarammal v. Gopal Krishna, I. L. B. 2 Mad. 126.
nCTBODUOTION.] MATNTENANOB. 237
bnt be is still contemplatisg the case of a possible inheritance by the husband's brethren, not that of their postponement to the widow as heirs as in a case of separation.
The rules as to maintenance were probably formulated without any distinct contemplation of the case of parti- tion. In the Bengal case of Khetramani Dasi v. Kashinath Das, (a) Loch, J. says " as the law originally stood it appears to me from some of the texts quoted above that no separa- tion was ever contemplated, but that the widow entitled to maintenance was expected to remain in her husband's house and among his relations/' This is quite true. " The family is the cherished institution of the HindAs" (b) and the " associated aggregate community of the family" (c) is as snch the principal care of the Hindu law. Property is regarded mainly as a means for fulfilling the duties to the past and present members imposed by the family law. Its characteristics are regarded from the point of view of its capacity or incapacity to subserve the purposes of the perpetual corporate group. Thus though it is moveable and immoveable, sacred and secular, with powers of disposal or management which vary accordingly, the land itself is not "free" or "nnfree" subject to gavelkind or other peculiar tenure. All depends in the private law on personal status and personal relations. These are determined by birth and by the second birth of marriage. They impose according to Hindu ideas duties not as springing from or annexed to pro- perty but as inseparably united to the person, though property is the medium through which in many cases they must be made efiectual and the means by which they must be fulfilled. As the mutual obligations of the family therefore spring from a blood relationship, real or fictitious, and a sacred connexion in sacrifices which is its complement, {d) so the
(a) 2 Beng. L. R. at p. 30 A. C. J.
{h) Bhyak Bam Singh y. Bhyah TJgwr Singh, 13 M. I. A. at p. 391.
(c) Comp. Sir H. Maine, Anc. Law, Ch. I., and Ch. V. p. 126.
(d) See Maine, op. cit, Ch. VI. p. 191.
238 LAW OP INHEMTANCB. [bOOK I.
laws whicli goyem them rest far less od property save as a modal circumstance than on relationship. This is not abol- ished by partition though partition modifies the duties arising from it. It is a modem notion to refer these duties, as Dev^da Bhatta refers them^ merely to cases in which property has been inherited or rather taken by right of participation and survival, (a) The passage which he quotes says nothing of that kind: it imposes the duty of providing food and raiment for a widow in succession on the deceased husband's brother^ on his father^ on a gotraja^ and any other person (amongst the husband's relatives). It is plain that the last two would not in general take the inheritance of the deceased husband^ or where partition prevailed be united with him. The duty is prescribed absolutely, and as Dev^nda Bhatta quotes the rule with approval^ the proper sense of his own remark which imme- diately follows may possibly be explanatory, not Umiting, and imply that when in a family the person immediately re- sponsible resigns to the widow the portion on which her husband and she previously subsisted he needs not provide her maintenance too. The treatise being on Inheritance implies generally that there is an estate to inherit, and to this the author's observations are naturally directed, not to the cases of no estate, and of indigence as in itself a ground of right and obligation in a family. The disposition of the property and the provisions for maintenance out of the pro- perty would necessarily be the topics to be dealt with directly, others only incidentally, just as in an English treatise dower and equity to a settlement would be considered in their relation to property, without prejudice to the right to protec- tion and sustenance subsisting apart from the possession of
(a) Smfiti Chand. Transl. p. 158. Participation by birth is the typical form of d&ya. lb is obvious therefore that the sphere of d^J^ and of inheritance by which it is translated lie outside each other in the most important cases. Hence to deal with dijsk according to notions exclusively proper to inheritance in the English sens^ must needs lead to error and confusion.
IKTfiODtlCTlON.] MAIKTEWAKCE* 239
property, and firom rules which merely determine its form^ and how it is to be satisfied in particular cases.
Mnch has been said in several of the cases on a distinction between the rules of the Hindd law which are mandatory^ as contrasted with those which are simply hortative or precep- ti?e. When the distinction is rested on the imposition of a fine in one of two cases and not in the other, it should rather be regarded as assigning the one to the province of the criminal and the other to that of the civil law; but these departments were by no means clearly demarcated in the early jurisprudence. Still less was any exact boundary drawn between the field of moral and that of strictly legal duties* ''Amongst the Hindis the religious element in the law has acquired a complete predominance/^ (a) and Jagannfl-tha^ arguing from the absence of any fine annexed to unequal partition by a father^ that he may distribute his property of every kind as he pleases amongst his sons^ (b) is landed in a direct contradiction of the Mitfikshar& and^ other i^ceived authorities.
In Yajnavalkya's laws of civil judicature the subject of a judicial process is said to be a " complaint of being aggriev- ed contrary to law or usage j^' but 'Maw^^ translates "Smriti/^ the sacred scripture, as "dchfir/^ maybe rendered " ordinance ^^ as well as ''practice/^ The rules in the Smritis, as for instance in Yfijfiavalkya's, are set forth in immediate connexion and with constant reference to this idea, and ^o expounded by commentators like Vijnanesvara in the Mitikshara. (c) In chapter VIII. of Manu, ''On Judicature and on Law/^ the connexion is very obvious. The rules for the constitution and government of the Courts are followed by the rules of evidence, and then come those
(a) Maine, Anc. Law, Ch. VI. p. 192. (h) Coleb. Dig. Bk. V. Ch. II. ad init. and T. 77, Comm. (c) See Macn. H. L. p. 141, and Boer and Montiioa's TAjii. voL II. 5, 12, 21, 1. 7 ; and Stenzlor's Text, pp. 4, 45.
240 tiAW OP INaEElTANCE. [boOK 1»
of the substantive law. The 24th distich is identical in sense with the one in Yajnavalkya ; disputes are to be determined by a consideration of what is expedient in the view of public policy, but always in subjection specially to the law of '"^dharm^' or religion. Sloka 164 of the same chapter says that no declaration, however well authenticated and support^ ed, can be effectual if opposed to '^ dharm,'^ or to recognized usage, and sloka 8 that the king is to adjudicate according to the '* eternal dharm.^' So in Narada, Bk. II. Ch. X. para. 7, it is said *' If wicked acts unauthorised by (=^ contrary to) the moral law are actually attempted let a king who desires prosperity repress them .^' Whatever precept of the Smritis therefore had been violated to the injury of a complainant, whether expressed in terms hortative or prohibitory, and whether a penalty was annexed to the rule or not, the al- leged injury might, if the prince or the judges so willed, be remedied or punished without an " excess of jurisdic- tion.''(a) No Hindft Austin had written a "Province of Jurisprudence determined" for the lawyers of India ; the rules of the substantive law were, as usual in but partly developed systems, not disengaged from the commands of religion. They were but scantily formulated as aids or sup- plements to the rules of procedure, while the contents of the Vedas were assumed generally to be well known to the learned and to need no statement The distinction therefore on which English judges have relied so much was for the Hindii judges hardly a distinction at all. {b) They exercised conformably to the Sdstras and to custom a jurisdiction as indeterminate as that of the early Chancellors in England,(c) and would enforce any duty enjoined by a Smriti which either in the class or in the instance seemed of sufficient im* porfcance to warrant the exercise of their power.
(a) See Y&jn. 1. 360; Muttayan Chetti v. Sivagiri Zammdar, I. L. K. 3 Mad. at p. 380.
(J) Oomp. Maine's Anc. Law, p. 16, 23, 192.
(c) See Spence, Equib. Jurisd. I. 367 ss. and references.
IKTBODUCTION.] MAINTENANCE. 241
One clas3 of propositions received an early and compara- tively fall exposition from the commentators and was applied with strictness by the native courts — that relating to ownership, its acquisition, devolution and partition. The needs of society imposed this duty on the Nyayddhish, but for the Brahman commentator the chief attraction of the subject consisted perhaps in its connexion with the law of sacrifices. In what cases property is constituted or extinguished, gained or lost, is minutely discussed. Posses- aon too as a source or element of propertjr has received a pretty full treatment. But the rights and obligations arising from family relations have been but meagrely dealt with in proportion to their importance, great as this is recognized to be. Positive law is incompetent to enforce a complete fulfilment of duty in such cases, and rules of mutual regard, concession and generosity, supersede or blend with those which can be imposed by external authority. Thus the boundary line between moral and legal obligations being in its nature vaguely drawn and not having been arbitrarily defined, precepts of the HindA jurists in this sphere take every form from stem command and denunciation to mere suggestion or assumption that a law of kindness is to prevail. Whether in any instance a precept construable as a mere counsel or a proposition of moral beauty was to be enforced by a sanction as a law was left to the judges on a consideration of all the circumstances. In discussing the doctrine of factum valet put forward to justify a father^s alienation of ancestral pro- perty, H. H. Wilson says, (a) ''It is absurd to say that the judge is to acknowledge as valid or to permit the validity of that which sacred institutes and universal feeling denounce
as immoral and illegal The only argument of any
weight adduced has been this : the law certainly prohibits the practice, but it has not provided for its prevention or
(a) Works, V. 73. A husband's alienation depriving his widow of subsistence is invalid. Jamna v. Muchal Sahu, I. L. R. 2 All. 315. 31a
342 LAW OF INHEBITANOB. [bOOK 1.
pQDishment^ and therefore being done it must be recognized. But this is a very incorrect view of the case and would, as observed by Sir F. Macnaghten^ authorize the perpetration of a vast variety of crimes. The law has not been so improvident. It has stated what ooght and what ought not to be done ; and has left the enforcement of its prescriptions to the discretion of the executive power. We are confident that the question between illegality and validity would never have been agitated under a Hindft administration/'
Itis plain that under a law thus flexible and discretional, the claims of a widow in a family from which her husband had been separated in estate might be subjected to a rather severer scrutiny than where there had been no partition. A wasting of his substance by the separated brother might be looked on as a kind of fraud which the judges ought to prevent. They would recognize too that the tie of consan- guinity was less binding as the relationship was more remote, (a) The changed conditions of life in modern as compared with ancient days might also be fairly taken into
(a) The recognition of distant relationships in the law treatises has been founded on texts in themselves of much narrower import. Thus Manu*s Text, IX. 185, gives the succession to the father on failure of the son, and failing the father gives it to the brothers. Y&jnavalkya's text is the widest. Devala, quoted in Col. Dig. Bk. V. T. 80-82, wonld seem to have limited the connexion which gave rights of inheritance to four degrees (counting inclusively) in the as- cending and descending lines. Thus the seventh degree, the rela- tionship between two second cousins, wonld be the extreme point of recognized close family connexion. The seven degrees were then transferred to a single ascending line as a source of Gotraja- sapindas, and beyond these were placed seven degrees more of origin for Sam&nodakas. ITie want of uniformity amongst the diflFerenfc schools of doctrine as to the remoter successions points to their comparatively recent recognition, and the analogy of the bandhu relation, limited to five degrees — first, instead of second, cousinship either to the propositus or to one of his parents — points the same way. So also does the limitation of responsibility for debt to the grandson. The recognition of a right of maintenance arising from family connexion as far as the sixth degree (second cousins), and the lapsing at that point of the nearer relationship into the clan connexioB
INTRODUCTION.] MAINTENANCl. 243
account in applyiog the rale of ezpediencj. Native Coorta could not have found a direct warrant perhaps for leaving any widow of the family to absolute starvation, but tbey might hold that the rules as laid down contemplated a different state of things from the divided family of the nineteenth century. Without saying therefore that the earlier judgments were wrong on the point in question, (a) it may be admitted that the learned Chief Justice of Bombay has not, in denying the claims of the widow of a separated parcener, transgressed the latitude of construction which the Hindi law itself approves. That law certainly ascribes extraordinary authority to a Court in which three judges of ordinary attainments sit with a chief judge specially appointed for eminent learning by the king, (b)
of superior and inrerior, is shown to have been common amongst tho Earopesn branches of the Aryan family by Dr. Hearn (The Aryan Hoasehold, Ch. X. § 3). In the Canon Law the seventh degree, as the nearest within which marriage was allowed, became identified at one time with seventh in the ascending line and those descending collater- ally from that point, as the Canonists counted the degrees only on the longer of the two lines diverging from the common source {see Jos. Can. by Reiffenstuell, vol. II. p. 493-5). But the fourth degree was afterwards resumed as the limit of prohibition, and this, taken exclusively not inclusively, would, according to the Roman reckoning, generally count as the seventh degree reckoned inclusively. The recognized names of relationship amongst the Romans extended only to second cousins, t. e, to the sixth, or according to the inclusive mode of reckoning the seventh degree {see Posters Gains, B. I. § 58), and it •eenas not unlikely that the range of recognized relationship under the Canon Law and of Gotraja-sapindaship under the Hindtl law («e# ftbove, p. 121) was extended by a somewhat analogous process. The genealogies preserved by the hereditary purohits readily lent them- selves to any desired extension of gentile connexion. As to tho variations of the Christian ecclesiastical law, see Zachariae Jus. 6raeco-Rom. Li. I. Tit. I. § 4.
(a) See also 2 Str. H. L. 16.
(h) Mana, VIII. 11. Comp. Mit. on the Adm. of Justice, Ch. 1.
51.
244 MW OP INHEBITANOB. [bOOK I.
Personal inquiries made since the judgment in Savitri' lai^s case in several districts of the Bombay presidency seem to establish that though a moral claim of every widow to support is recognized even in a divided family, a legal right is hardly admitted. Widows of separated relatives are to be found in the households of many Hindft gentlemen, but it would be a wrong assumption that amongst people tbus closely connected no more is conceded than could be enforced. The presence of these ladies whose lot excites pity even in a stranger is, it would seem, to be ascribed to a rule of kindness or at most of positive morality, rather than to one of compulsive customary law. Similar inquiries as to the case of united families led to the conclusion that the right of widows of deceased members to main- tenance is almost invariably recognized, though as to the incidence and apportionment of the burden no exact con- sensus of opinion could be obtained. Here the passages of Narada already referred to, seem to be applicable, and to make the support of the widow a duty independent of the possession or existence of any estate in which the deceased husband was a sharer, though where this state of things existed he who takes the share is specially liable and the share itself may be allotted to the widow whose relatives are unwilling to receive her. (a) The expression used by Narada is the same in stating the right of widows as in stating the right to subsistence of members of a family disqualified for inheritance. The Vyavabara May flkha limits the text of Narada (^) to the case of an undivided family, but in such a family it does not make the widow's right to subsistence depend on the possession of ancestral wealth. In the passage from Katydyana (c) which Nilakantha quotes immediately afterwards, the particle " tu, " translated *'or," includes the sense of «'buf ; so that the sense is "The
(a) Smriti Cband. Ch. XI. Sec. I. paras. 34, 35, Traosl. p 158, 159.
(6) Stokes, H. L. Books, p. 85. (c) Stokes, H. L. Books, p. 85.
INTRODUCTION.] MAINTENANOB. 245
widow receives food and raiment but (where there is pro- perty) may (also) be assigned a share of it for life/' The S/istris have uniformly accepted the rule in this sense so far as can be gathered from their omission to set forth the possession of ancestral property as essential ; and it is estab- lished by authenticated usage as the law of many castes. This is shown below.
That the recognition of the share of a parcener as pri- marily liable for his widow's maintenance does not imply that she has no right when there was no property, may be gathered from Jaganndtha's comment on Yajiiavalkya's text providing for the daughters and the childless wives of dis- qualified members of the family, ^* since it is directed that daughters must be supported so long as they be not disposed of ia marriage, it appears that the nuptial (expenses) shall be defrayed^ and that ( = that is) if no share be received by a sou; but if the son do take a share his sister must be supported and her nuptials defrayed by him alone as is done in common cases by a son whoso father is dead/' (a) The MitSkshara cites a passage from Harlta. " If a woman becoming a widow in her youth be headstrong (still) a maintenance must in that case be given to her for the support of life/' The Vivada Chintamani quotes this as "A woman is headstrong, but a maintenance must even = still) be given to her/* (/») The right to support is not Contemplated as dependent on property, though should there be property it may be satisfied out of it. If the right as *ijnanesvara possibly thinks belongs to a widow of a sepa- ^ted parcener, that affords an a fortiori reason for recogniz- ing it in the case of a widow of one who has died a member
(a) Col. Dig. Bk. V. T. 334, Comm. This is in fact a portion of the lather's obligations falling on the son subject to his exoneration only when the misappropriation of property actually existing trans- fers the duty to him who has taken it. See Vyav. May, Ch. IV. Sec. V. para. 16.
(6) Mit. Ch. II. Sec, I. para. 87.
246 LAW OP IKHEEITANCE. [bOOK I.
of a joint family. While that family subsists and is capable she mast look to it alone for maintenance. The Viramit- rodaja lays down this rule for widows and danghters in a reunited family, (a) The duty of the Hindfl householder therefore seems not to have been exaggerated by Sir T. Strange when he described it as '^ co-extensive with his family/' (b) or when he said of the widow in a united family " where her husband's property proves deficient the duty of providing for her is cast upon his relations." (c) Y&jfiavalkya, like N&rada, assigns the protection of a woman unconditionally to her father, her husband and her son successively, and then " on failure of these, let their kinsmen protect her.^ (d)
Jagannatha, resting on the familiar text of Manu, declares: "The father is bound to support the family of his son, aad it is not true that those to the support of whom the master (i. e. the son) is entitled from a certain person (the father) are not (themselves) entitled to maintenance from the same person.^* (e) 'i'his is said of the family of a student who has not then acquired property. Consistently with this Colebrooke says, (f) in a case where the son must have died without property, that the father " would have been liable for the reasonable charges of his daughter-in-law'a maintenance, had he refused or neglected to support her/' Nothing is said of the father's having ancestral property. lo a similar case where the father may have had ancestral property, but the son distinctly had no separate estate, the son's widow was pronounced entitled to maintenance from her father-in-law. In this opinion Colebrooke and
(a) Vframit. Trans, p. 219.
(b) 1 Str. H. L. 67. (c) Op. ciL 172.
(d) Col. Dig. Bk. IV. Ch. I. Sec. I. T. 6.
(e) Col. Dig. Bk. V. T. 379, Comm. See also per Sir M. Saasse, C J., in Bamchandra v. Dddd Ndik, 1 Bom. H. C. K. Ixxxiv. Ap- pendix, and Macn. H. L. vol. II. Ch. II. Case 8.
(/) Op. cit. vol. II. 412.
INTRODUCTION.] MAINTENANCE. 247
Satherland concur^ (a) as Sutherland did in a similar claim by the son's widow against the father's widow. (6) In another case (c) Colebrooke says that tbo half-brothers of a widow's deceased husband are bound to maintain her. (d) It is not even said that the deceased and his brothers were members of a joint family, much less that there was pro- perty of the deceased or ancestral property. If there had been separate property Colebrooke must have said that the widow was entitled to it, and if the possession of ancestral property were essential in his view to the existence of the widow's right, he must have mentioned that too.
The same remark occurs as to the opinions of the S&stris given below at Bk. I. Ch. 11. Sec. 1. Q. 17; Sec. 6. A. Q. 27; Sec. 7, Q. 10. In the first of these cases the family was undi- vided, but whether there was ancestral property is not stated. It would seem that the deceased son left no property solely his own, as there is no reference to it. In the second case the i family was undivided or was understood to be so by the i Sistri, but it does not appear that there was ancestral [ property held by the father. In the third case the pre- j deceased son may or may not have been separated from his father. There is no suggestion that he left any property, nor is there any limitation of the widow^s right to the amount of his share. The Sastri evidently regarded the property left by the father as having been solely his own, bnt the obligation of maintaining the son^s widow as one that had been binding on the father and after his death i passed to the mother along with the means of satisfying it. In ancestral property the son's right to a share comes into
(o) 2 Str. H. L. 233. So in Bat Sham Ballubh v. PranhUhen QhoBBt 3 C. S. D. A. R. 33 ; Musst Himulta Chowdrayn v. Mu$Mt. Pttdoo Mwm Chowdrayn, 4 ib. 19.
(h) Op. ciL II. 235.
(c) Op. HU n. 297 ; Macn. H. L. vol. II. Ch. II. Case 4.
{i) So 2 Str. H. L. 12, 16 ; Macn. H. L. Tol. II. Ch. II. Case 7.
248 LAW OP INHEEITANOB. [bOOK I.
existence and dies along with him, (a) so that it could not be as annexed to an inheritance in the English sense tbt the father's obligation attached to him. The father and soa having been joint tenants if not tenants by entireties, the son could not even charge the common estate according to the principle jus accrescendi praefertur oneribus, except under circumstances specially provided for. (b)
In the case of a disqualified person no ownership generally comes into existence at all over the ancestral estate, (c) He is entitled merely to maintenance which is accorded to him by the texts in the same terms as to wives and widows. His right is a charge or an equity to a settle- ment on the property when there is property, (d) but the duty of maintaining him is not therefore limited to what but for his incapacity would have been his share. (c) It is on relationship that the right is founded, and the right of the widow of a member, herself a member of the family, rests equally on relationship, not on property once shared by the deceased, though should such a share have passed into the hands of any particular member of the family the obligation will primarily rest there too. (/) In the cases at pp. 83 and 90 of vol. 2 Btrange's Hindil Law, the widow left destitute by her husband is recognized as having a right to maintenance from her brother's widows. Her brother
(fl) Uddrdm Sitdram v. E4nu Pdnduji, 11 Bom. H. 0. R. at p. 86.
(b) Mit. Ch. I. Sec. I. paras. 28. 29 ; infi-a, Bk. l.Ch. II. Sec. 6 B.j Rddhdbdi v. Ndndrdv, I. L. R. 3 Bom. 151.
(c) See Bk. I. Ch. VI. Sec. 1.
((£] Klietramani Dasi v. KasMnath Das, 2 Beng. L. B. at p. 52 A. C.J.
(e) Bk. I. Ch. YI. Sec. 1. Q. 5.
(/) In the MS. Collection of Caste Laws gathered by Mr. Boiradailo there are man}' instances in wbich the caste declare that the helpless person is entitled to his share on a partition ; and others in which it is said that he is entitled to maintenance oat of his share, or alternatively, his proper share ; but along with this it is stated in some instances that his brethren must support him where there is no estate. This shows that a mere reference to the property
INTBODUCTION.] MAINTBNANOfl. 249
coald not have held ancestral property along with her husband^ or inherited from faim^ and the obligation arisiDg as against a brother only on the incapacity of the hus- band's family cannot, it would seem, be made absolutely dependent as to the latter any more than as against the former on any conditions of property taken by inheritance.
The Smriti Chandrik&, true to the principle *^ To him that hath shall be given/' says that even in the case of helpless kinsmen the duty of supporting them rests only on those who have taken the patrimony of the disqualified member's Either, (a) For this Devanda Bhatta cites a passage of Kityftyana ending: — "The kinsmen shall not be compelled to give the wealth received by them not being his patrimony." Here there is nothing about subsistence. The rule given is that the person in question shall not obtain property not his patrimony. But the passage is not quoted by either the MitakshariL or the Mayflkha, though many other passages of K4ty&yana are quoted by both ; and the reason is obvious. The whole of it is given at Ch. V. para. 16 of the Day a Bhiga; and it is plain that it refers to a case which does not now occur, that of a competition between the offspring of persons of different castes. " He,'' K&ty^yana says, " is not
heir to the estate except on failure of the kinsmen.
They shall not be compelled to give him the wealth [it] not being his patrimony." There is a various reading '^ svapi- tryam" (= it being their patrimony) which leaves the result 'inaltered. On the point for which Dev&nda uses it, the text
where there is property does not imply an absence of right where there is no property, or none chargeable with the maintenance. The questions as to widows were put with reference to property, but atiU some answers, as in Bk. G sheet 25, state an unqualified duty to wpport the widow in the family house, her resort to her pulla even heing (ih. 32, 49, 55) * necessary only in the absence of relatives of her husband. («) Smyiti Chan. Ch. V. paras. 23-25.
• n, K«ioiiib«r8 8, Maohee Godrya 25, Vaghree «0, Khalpa Khttmbari* 48. I2i
250 LAW OP INHERITANCE. [ BOOK I.
■aj8 nothing. In Mamedala Venkutkrishna ▼. Mamedila Venhrdratnamah (a) the Sadder Conrt of Madran set aside Dey&nda's rule in the proyince where his authority is highest by pronouncing in favour of the widow's right to maintenance by her husband's brothers where there was no proof of their possession of paternal estate j and it cannot be considered u of any great weight in Bombay.
In a case at Allahabad the High Court ruled that a daughter-in-law had no right to maintenance from her father-in-law when he had sold the ancestral property, (i) If the right of the son's widow to maintenance depends on the bare fact of the retention of the ancestral property, this decision must be accepted, and a father can get rid of the burden properly incumbent on him by merely selling the patrimony though he may keep the proceeds, or obtain the fruits of his unprincipled conduct in some other form ; but this would so obviously be a fraud on the dependants that the Hindu law would interfere to prevent its success, (c) The case is discussed in Luximan Ramchandra v. Satyabhdmi- hai, {d) and the authorities there quoted seem conclusive of the daughter-in-law's right, and by implication of the right of every coparcener's widow. The passage of the Vira- mitrodaya quoted by the Allahabad Court seems to be the one at p. 154 of Mr. Golapchandra's translation. It says, " By reason ( = force) of the text ^ The heir to the estate of a person shall liquidate his debts' — he alone who takes the estate is declared liable to discharge the debts.** This is said by Mitramisra to illustrate the proposition that if any one improperly deprives the grandson of the estate, such person shall pay the grandfather's debts, and yet in the absence of all estate the grandson's liability is not disputed, (e) So
(a) Mad. S. D. A. R. for 1849, p. 5.
{b) Oangdbdi v. Sitdrdm, I. L. R. 1 All. 170.
(c) Bk. II. Introd. § 4 F.
(d) 1. L. B. 2 Bom. at p. 579.
(«) See Vyav. May. Ch. V. Sec. IV. para. 14
IKBODUOnON.] liAINTENANOE. ^51
aho as to the passage of N&rada and the comment on it pven at p. 174. Mitramisra indeed takes the command to rapport the widows as specially applicable to those of a separated coparcener of a rank lower than the " patnl/' and says that *' whoever takes the estate '^ must aflford them maintenance " by reason of succession to the estate." Such is therale^ he says^ when there is an estate to succeed to : ha who takes the benefit must take the burden. But where there is no estate the precept remains unqualified by anything which can transfer the obligation from those immediately subjected to it^ just as in the case of the father's debt.
• Looking then to the constitution of the HindA family, to
the restrictions placed on a woman's activity, to the prohibition in a united family against her making a hoard, and the maledictions pronoanced on those who fail to pro- vide for the helpless members of their family, the conclusion ; may be hazarded that Oolebrooke and others had sufficient [ grounds for opinions to which the actual practice of the f people generally conforms in the Bombay presidency. In a united family it would seem that in some form mainte- nance may be claimed by the widow of a deceased member as a right not dependent on property though in a measure iregulated by it, (a) but on the capacity only of her relatives in the order of nearness to her husband. It must be admitted however that the decisions in recent times go t rather to limit the responsibility for maintenance, to the property taken by succession to the deceased husband. Where the widow had made away with her husband's pro- perty and then sought maintenance from his two brothers solely dependent on their profession as schoolmasters, the rejection of the claim (6) might be referred to the principle of the repression of fraud in the comprehensive sense given - - -
(a) See Narhar Singh v. Di/rgnath Kuar, I. L. R. 2 All. 407. Iff) QtmUkY. Yamunabdi, Bom. H. C. P. J. 1878, p. 130.
252 LAW OF INHEBITANOE. [bOOK I.
to it in the Hind a law^ (a) but in other cases (b) it has been Baid that a widow's claim extends only to the interest of ber deceased husband in the undivided property.
In close connexion with the right to maintenance, form- ing part of it indeed, stands the widow's right to a residence in the family house. That such residence must be afforded to her when there is a family dwelling has been uniformly held by the Sdstris. (c) Should her residence in the family dwelling be extremely inconvenient she may be lodged else- where, (d) but the obligation cannot be shaken oflF by a sale of the dwelling, (e) The head of the family is still bound, and the property itself ( / ) unless taken by a circumspect pur- chaser without notice of the widow's right, (g) Her general right to sustenance is guarded against fraud in one taking
(a) Comp. Paro Bibi v. Guddadhar Bnnerjee, 6 C. W. R. 198. In he case of Bdi Lakshmi v. LakhmiddSf 1 Bom. H. C. R. 13, the widow had taken a share of her deceased husbaud^s estate, bat when after thirty-four years she became destitute the S&stri and the Court pro- nounced her step-son and his sons liable for her maintenance. In that case there had been no fraud. Comp. Bo. H. C. P. J. 1878, p. 139.
(b) See MMJhavrdo v. Gangdbdl, I. L. R. 2 Bora. 639 ; the F. B. case, 7 N. W. P. R. 261; Visalatchi Aimnnl v. Annasamy Sastry, 5 M. H. C. R. 150; Ganga Bai v. Sita Ram, I. L. R. 1 All. 170; Narhar Singh v. Dirgnath Kuar, I. L; R. 2 All. 407. Bo. H. C. P. J. 1878, p. 131.
(c) See above p. 79; Bk. I. Ch. I. Sec. 2, Q. 7, II, 12, 25, 26. See Index, Tit. Residence; Gauri v. Chandramani, I. L. R. 1 All. 262; Bhikham Dae v. Pura, I. L. R. 2 All. 141 ; Mangal Debi v. Dinanath Boee, 4 Beng. L. R. 73, 0. C. J.
(d) Ibid.
(fl) See infra, Bk. I. Ch. I. Sec. 2, Q. 9; Lakshman Rdmchandrar Satyabhdmdbdi, I. L. R. 2 Bom. 494, SM).
(/) Mangala Debi y . Dhianath Boee, 4 Beng. L. R. 73 0. C J- ; Srimati BJtagabati Daei v. Kanailal Mitter, 8 Beng. L. R. 226 ; Qauri V. Chandramani, I. L. R. 1 All. 262 ; Talemand Singh v. Ruhnina, I. L. R. 3 All. 353.
(ff) See Lakshman Ramchandra v. Safyahhdmdbdi, I. L. R. 2 Bom. at pp. 514, 518, 519. In Parwati v. Kisaneing, Y was a widowed daughter-in-law of X. She occupied a house allowed to her as residence by X. This was attached in execution of a decree against X by hit creditor C ; Y then sued X for maintenance and residence in the
INTRODUCTION.] MAINTBNANOB. 263
the family property when there is sncli property^ but it does not coDstitate an interest in the estate unless it has been limited by a decree or a legal ti*ansaction.(a) Her own resigna- tion of her right cannot be effectual, seeing that as a wife 8be is incapable of contracting (6) except with reference to her strtdhana, (c) that during her husband^s life her right is a mere expectancy, (d) and that afterwards she cannot deal by anticipation with her right to subsistence, which is a per- Bonal relation between her and her husband's heirs, though Bhe may dispose of that to which by allotment in partition she has acquired a right ad rem. (e)
honse occupied by her. This was adjudged to her. In the mean- time X*8 interest in the honse had been sold in execution and purchased by C, who sought to expel Y. It was declared however that X's ownership was subject to Y's right of residence, and that C could not take possession until Y*s " life estate fell in."
On the remark of the District Judge that debts take precedence of maintenance, the judgment observes "We may assume that this is correct," but found in it no ground for disturbing Y. This if laid down without regard to the nature of the debt contracted by X to C, would go to make Y's title to residence a complete life-tenancy of the house occupied by her. This puts her right rather higher than SatyahhdmdbdVs case, but the proceedings may have suggested to the Court that there had been collusion for the purpose of getting rid of the daughter-in-law Y.
(a) Lakshman BamcTiandra v. Satyabhdmdbai, supra; Kalpagatkachi ▼. Gttnapathi PiUai, I. L. R. 3 Mad. 184, 191.
(h) Mann, VIII. 416, says her property becomes her husband's, like a wife's chattels under the English Common law. Her earnings are her husband's : Vyav. May. Ch. IV. Sec. X. para. 7, and even the presents of friends except in special cases, ib. Col. Dig. Bk. V. T. 470.
(c) S. A.. 261 of 1861 ; Nathuhhdi Bhdildl v. Javher Ediji, I. L. R. 1 Bom. 121; Oovindji Khimji v. Lakhmidds Naihubhoy, I. L. R. 4 Bom. 318; Ndhdlchtind v. Bdi Shivd, I. L. R. 6 Bom. 470 ; Narotam v. Nanka, ib. 473 ; Col. Dig. Bk. V. T. 475 ; Coleb. on Oblig. Bk. II. Ch. III. 64.
(d) The Judicial Committee declined to affirm the principle that an expectant interest can be the subject of a sale under the HindtH law. Baboo DooliChand v. Baboo Brij Bhookan LaU, decided 4th Feb. 1880.
(e) See on the woman's general dependence, below, Sec. 11 ; Y&jn. I. 85 ; Vyav. May. Oh. IV. Sec. V. para. 17. That she is always under tutelage $ee Steele, L. C. 177 ; especially a widow* per Grant,
254 LAW OF INHSBITANOB. [bOOS I.
The quefltion remains of bow the right to maiBtenanct where it exists is to be satisfied. On this point Ae lCit4k- aharA is silent^ which however shows only the fragmentary manner in which as a running commentary on a pariicalar Bmfiti it deals with the body of the law. In the Vyaya- h&ra Mayflkha (a) it is said that in lua undivided family th» widow '^ obtains food and raiment or else a share so long as she lives.'' (6) As a condition however she* is to be assi->
J., in Comultnoney Doeeee y. Rammanath By sack, 1 Fait, at p. 200, and per SetoD, J., ib. 203. As to her general incapacity to contract, N&* rada, Pt. I. Ch. in. 27, Oh. IV, 61 ; Vyav. May. Oh. II. Sec. I. para. 10 ; Col. Dig. Bk. I. Ch. I. T. 8 ; Ellis in Madras Mirasi Papers, 198 ; that she may like an infant be represented by a next friend, Vyaf. May. Ch. I. Sec. I. para. 21. That her right as mother or wife is un- transferrible, see Bh/yruh Chmder Gko$e v. Nubo Chunder Gooho, 6 C. W. R. Ill; Ramdbdi v. Ganesh Dhonddev Joshi, Bom. H. C. P. J. 1876, p. 188, except perhaps where a specific charge has l^een decreed; Gangdbdi v. Khrishndji, Bom. H. C. P. J. 1879, p. 2. But the right is doubtf al even then, see Seith Gobin Dose v. Banchore, 3 N. W. P. B. 324; Bat Lakshmi ▼. Lakhmidds Gopdldds, 1 Bom. H. C R. 13; Ramdhdi v. Trimhak Ganesh, 9 Bom. H. 0. E. 283. As to the share given on partition see Bhtigwandeen Doobey v. Myna Baee, 11 M. I. A. at p. 614. The contracts which have sometimes been relied on even if con- sistent with the relation of husband and wife must in nearly all cases fail through the operation of the principles embodied in Sees. 14 and 16 of the Indian Contract Act IX. of 1872 and the Indian Evidence Act 1. of 1872, Sec. 111. See Narbaddbdi v. Mahddev Ndrdyan, I. L. R. 5 Bom. 99, and the references. In England there can be no contract between a husband and his wife, Legard v. Johnson, 3 Ves. 352, 358, nor can any agreement between them alter her legal capacities as a married woman, 3far«^aKv. Rutton, 8 T. R. 645. The same rules hold under the Hindd law by which the wife's dependence, and the husband's dominion and obligations are as strongly recognized as by the English law, and in a way remarkably analogous to it. See Vyav. May. Ch. IV. Sec. X. para. 7 ss. ; Ch. V. Sec. IV. para. 20;Ch. XX; Col. Dig. Bk. V. T. 470 ; Nathubdi Bhatlal v. Javher Ronjh I- ^- ^ 1 Bom. 121 ; Ramdhdi v. Trimbak Ganesh, 9 Bom. H. C. B. 288 ; 8. A. 94 of 1873. [As to the English law see now 45 and 46 Vic. C 75.]
(a) Ch. IV. Sec. 8. para. 7.
(5) Se€ Viramit. Transl. pp. 173, 174.
IKTBODUOnON.] ICAINTBNANOB. 255
duonsin Berrioe to her ** guru '' that is ''to her father-in-law ftiid other (head of the family supporting her). At his pleasure she may reoeive a share ; otherwise merely food and rai- meof The " anna vastra/^ translated '' food and raiment," means a direct supply of necessaries as distinguished from a money allowance, (a) Katydyana's Smriti (&) on which this precept rests contains the further direction as given iu the Vivdda Chint&mani. (c) '' If he (the husband) leave no estate let her remain with his family.'^ The same Smriti goes so far even as to say that " what has been promised to a woman by her husband as her strtdhana is to be deliver- ed by his sons provided she remain with the family of her husband, but not if she live in the family of her father/' (d) A various reading in Varadrdja (e) supports her right to her fltrldhana in either of the cases supposed but leaves the condition as to maintenance untouched.
The condition of residence and performance of household duties may however be dispensed with on proper occasions. Thus after providing for a wife's support during her hus- band's life by a kind of distraint in cases where food, apparel, or habitation is withheld, K&tySyana says, (/) ^' She may
take it also (if refused) from his heir but when
she has obtained it {i, e. maintenance = food, apparel and lodging) she must reside with the family of her husband. Yet if afflicted by disease or in danger of her life she may go to her own kindred.'' (g) Apart from this Ksltyftyana, as we have seen, says property promised by her husband aa
(a) See the Petri's answer in Ichha Lakahmi v. Anandnram, 1 Borr. B.afcp. 130. (h) See Vlramit. Transl. 173, 174. (c) Transl. p. 261. {d) Col. Dig. Bk. V. T. 483. («) Transl. p. 50. (/) Viy&da Chint. p. 265. is) Col. Dig. Bk. V. T. 481 ; Coleb. in 2 Str. H. L. 401.
256 LAW OP INHEBITANCB. [bOOK L
Btridhana — a promise specially sacred (a) — may be withheld by the sons if she choose to withdraw to her own fisimily. (b) Various readings of the Smritis give a different sense, (c) but the ones adopted by Jagann&tha were approved hj Colebrooke^ whose opinion^ confirming that of the Sastri, ia given at 2 Strange H. L. 401. The widow^ it is said, may visit her own relatives but is to reside with those of her husband^ who must provide her with a suitable allowance. The S&stris in the Bombay presidency have always given similar opinions, making the widow's right one to main- tenance as a member of the household in the husband's family, (d) The Judicial Committee also say, ''The Hindd wife upon her marriage passes into and becomes a member of that family. It is upon that family that as a widow she has her claim for maintenance. It is in that family that in the strict contemplation of law she ought to reside." {e)
Consistently with these authorities it was said in TJdaram V. Sonkabaiif) that ''the ordinary duty of a Hindfl widow is to reside with her husband's family, who in return are charged with the duty of maintaining and protecting her," (g) but it was in the same case ruled that for a failure in kind usage the widow might leave her father-in-law's house and obtain a separate maintenance. In Rango VinSyak 7. Ta/mundbdi (h) it was held that although in the discretion
(a) Viram. Transl. p. 228.
ib) CoL Dig. Bk. V. T. 483; Viv&daChinfc. 265.
(c) See Varadr^ja, pp. 60, 51.
(d) KurrUa Buhoo v. Muneeshtmkur, 2 Borr. 746 ; infra, Bk. I. Ch. I. Sec. 2, Q. 12, 25 ; Ch. II. Sec. 1, Q. 6 ; Sec. 6 A. Q. 2 ; Sp. Ap. 5 of 1862; see Raiigo Vinayak v. Yamundbdi, I. L. R. 3 Bom. at p. 46, and see 2 Macn. H. L. Ill, 118 ; 1 Str. H. L 244, 245; 2 ib. 272.
(e) Sri Baghunadha v. Sri Broze Kishore, L. R. 3 I. A. at p. 191. (/) 10 Bom. H. C. R. 483.
{g) •* A widow's nearest guardian, if there be no dower, will main- tain her." Answers of Castes (Brahmans) to Borradaile's questions, Bk. E. p. 13 MS.
{h) I. L. R. 3 Bom. 44.
INTftODUCTION.] MAINTENANCE. 267
of the Court a separate maintenaDce might be awarded to a widow qnitting her husband's family, yet this could not ordinarily be claimed. *^A11 she can strictly demand/' it was said^ '* is a suitable subsistence when necessary and whatever is required to make such a demand effectual/' In the absence of any special cause for her withdrawal a separate allowance was refused, (a) In a previous case (b) it had been said by Sir Michael Westropp, C. J., " If he (the father-in-law) ill-treated her and expelled her from the family house the Civil Court would, we think, have been war- ranted in awarding to her a residence and a separate main- tenance out of the fiamily estate in his hands." The mention of the condition implies that it was thought essential.
In a Bengal case, however, that of Cassinath Bysack v. Hurrusoondaree Dossee, (c) it was said by the pundits who were consulted that a widow removing from her husband's family for other than unchaste purposes does not forfeit her right of succession to her husband's estate. This was made the foundation of the decision of the Judicial Committee in appeal, (d) The Hindft widow in Bengal, it must be borne in mind, takes her husband's share even in an undivided family, {e) and there being no text to deprive her of the estate on her withdrawing from the family abode she retains it,(/) as does even a widow who becomes incontinent, [g) In the subse-
(a) Loss of right to maintenance by removal from her father-in- law's is set forth as a enstomary law by many castes in answer to Mr. Borradaile's inquiries. See Lithog. pp. 53, 74,82, 83, 160, (177) (211), 194, 476-6. 498 ; MS. 0. 60, 165 ; F. sheet 36, 40, 44 ; G. Sootar Goojar Talabda, Lobar Sootar, Pardesi Sootar, Lobar Surati ; Sh. 16, 25, 49, 56 ; Koombar 8, Mochi 20, Khalpa Kbimbatta 48. The onJy case to the contrary is one in Bk. F, Broach Brabmans.
(b) SdvUribod v. Lvximibdi, I. L. B. 2 Bom. at p. 590.
(c) 2 Mori. Dig. 198,
W) See 12 Beng. L. R. at p. 242, 243. (e) Dayabb&ga, Ch. XI. Sec. 1, para. 46. (/) See Vtram. Transl. p. 236.
ig) Vtram. Transl. 253. See Moniram Kolita v. Kerry Kolitawy, L.R.7LA. 115. 8)1
258 LAW OP INHERITANCE. [ BOOK I.
quentchse of Jadumani Dasiv. Khetra Mohun Shil, (a) SirL. Peel said that the right of a widow to maintenance was a charge on the late hasband's property in the hands of the heir. As the property did not descend to the widow the case masi have been one under the law of the Mitakshar^^ not of the Ddyabhaga. The learned Chief Justice however applies the former decision to the new case under a different law^ and gives it an extension beyond the matter to which the earlier decision applied, which certainly could not have been expect- ed by the pundits whose opinions formed the ultimate basis of the judgment. *' The freedom of choice ( of residence)," his Lordship observes^ '' had respect to causes as applicable to a widow not an heiress as to one who inherited/' •' ITiere are certainly texts/' he continues, ** which speak of the right of the relatives of the husband to have the widow resident under their roof/' but these he thinks may be controlled by reference to the needs of modern society, and as a forfeiture of maintenance is not prescribed as a penalty for withdrawal, the widow is equally entitled to it whether she resides at her father's house or with her deceased husband's &mily.
It does not seem to have occurred to the learned Judge that '' the right to receive maintenance is very different from a vested estate in property, and therefore what is said as to maintenance cannot be extended to the case of a widow's estate by succession/' (2>) and that the converse is equally true. The widow does not forfeit her right by withdrawing from her husband's family, but then the right itself is a right to be supported there not elsewhere. Its enjoyment is lost simply because that enjoyment is essentially local. It is only when the husband's family are unable or unwilling to maintain the widow that her right to a separate allotment of property arises, (c) Strictly it is only in the patnl or principal wife
(a) Vyav. Darp. 384.
(6) Judicial Committee in Moniram Kolita v. Kerry Kolitanyt L.B. 7 I. A at p. 151.
(c) Vyav. May. Cb. IV. Sec. VIII. p. 7 ; Smriti Chand. Ch. XI. Sec. I. p. 33, 46 ; Viv&da Chint. 265.
INTRODUCTION.] MAINTENANCE. 259
that this latter right can become vested. She is answerable for sacrifices to her husband's manes^ and ought to have the means of performing them when she cannot share in the anited family sacrifices: the wife of inferior class is not a sobject of the duty or the right, (a) It is not in any case strictly a charge on the estate constituting a property. The widow^s maintenance is a personal right (6) to be made good by the heir taking the property, (c) but the correspond- ing duty does not necessarily and in all cases adhere to the property itself, {d) It is not a right which can be assigned or attached. ( e ) The father's debts take preced- ence of the mother's subsistence, and even these are not a charge in snch a sense as to prevent the sons giving a clear title to a purchaser. (/ ) Although therefore the mainten- ence of a widow of a coparcener is in a sense a charge on the estate, (g) it does seem to be one necessarily attended with the incidents of ordinary property until at least a special lien has been created by agreement or by judgment of a Court. In Baijun Doobey v. Brij Bhookan Lall Awasti [h) the phrase " charge upon inheritance '' seems to be used in the sense of a liability passing with the estate to
(a) See SmritiChand. Ch. XI. Sec. I. paras. 9, 10, 12, 15, 21, 35.
(b) Bhtfrub Chtmder Ghose v. Nubo Chnnder Gooho, 5 C. W. R. Ill ; Mu$8t. DiUoon Koonumr v. Sungum Singh, 7 C. W. R. 311.
(c) What the Roman law called a modus.
(d) Lukshmanv, Sarasvatibdi, 12 B. H.C. R. 69; Adheranee Narain Comary v. Shona Malee, J. L. R. 1 Cai. 366 ; Johurra Blhee v. Sree- gopal Mis€er, ib. 470. See Lakshman v. SatyabMmdbdi, I. L. R. 2 Bom. 494.
(c) Bhyruh Chunder v. Nuho Chnnder, 5 C. W. R. Ill; Musst. I>ido(m Koonwir v. Sungum Sin{;h, 7 C W. R. 311 ; Ramabdi v. Conw^, Bom. H. C. P. J. 1876, p. 188.
(/) Lukshman Ramehandra v. Satyabhdmdbdi, I. L. R. 2 Bom. at V- ^h ; Jamiyatrdm v. Parbhudds, 9 B. H. C. R. 116; Lakshman ^^chandra y. SarasvaHbdt, 12 B. H. C. R. 69 ; Ndtchiarammdl r. ^opa/a Krishna, I. L. R. 2 Mad. 126.
(g) Bamchandra v. Sdmtribdi, 4 Bom. H, C. R, 73, A. C J.
(*) L. R. 2 I. A. at p. 279.
260 LAW OP INHEBITANOH. [bOOK I.
successors : the claim in that case was realized against the per- sonal interest of the holder of the estate* herself a widow. In Ndriyanrdo v, Ramibdi (a) the Judicial Committee recog- nizes that "an obligation to make allowance for the
support of the widows analogous to the maintenance to which widows by Hindu law are entitled/^ does not *' create a right which [is] a specific charge on the inheritance." The assumption therefore that the right to maintenance is an estate like that taken by a widow on succession seems to be unwarranted, and thus the ground originally taken for giving to the minor right the absoluteness of the other fails, (b)
But however questionable the origin of the doctrine we are considering, it has been so frequently acted on that it must now probably be considered as finally established, (c) The duty of residence with the family of the deceased hus- band has been reduced to a mere moral obligation, (d) In the case of Pirthee Singh v. Ranee Rajkooer, (e) an appeal from the High Court at Allahabad, the widow was entitled under her husband's will to maintenance and provision for charities. There was no direction as to residence. The Judicial Committee finding this, relied on the general prin- ciple laid down by Sir L. Peel in Jadumani's case, (/) and
(a) L R. 6 I. A. at p. 118. Comp.Zbo7nareeDa6ea*«case.l Marsh. 200.
{h) The husband's obligation under the English law to settle lands on his wife is not forfeited even by elopement and adultery. It is a legal right vested in her and is not divested though dower is barred by similar misconduct: SidnayY. Sidmey^ 3 P. Wms. 268; and the wife keeping apart from her husband cannot claim a separate main- tenance: Maniy v. Scotty 2 S. L. C. 375; Marshall v. RwUon, 8T. R. 645. 547.
(c) See Subsoondaree Dossee v. Kisto Kisore Neoghy, 2 Tay. and Bell, 190 ; Shurno Moyee Dassee, v. Gopal hall Dasa ; 1 Marshall, 497; Viaa- latchi Ammal v. Annasamy ^dstri, 5 M. H. C. R. 150.
(i) Koodee Monee Dabea v. Tai-rachand Chuckei-butty, 2 C W. R. 134; AhoUya Bhai Debia v. Luckhee Monee Debia, 6 C. W. R. 37; Qanga Bai V. Sita Ram, I. L. R. 1 All. 1/0, 174.
(e) 12 Beng. L. R. p. 238.
(/) V.Darp. 384.
INTRODUCTION.] MAINTENANCE. 261
declared the right of the widow to an allowance not impair- ed by her withdrawal from the family of her husband. The case of NdrdyanrAo v. Rarnabai (a) from Bombay was very similar to that of Pirthee Singh, and there being no condition as to residence in the will, the Judicial Committee held that the widow ** was to be left in this respect in the ordinary position of a Hindft widow, in which case separation from the ancestral house would not generally disentitle her to maintenance.^' The law thus laid down was followed in Kasfurbai v. Shivajiram (b) and it must now be taken that when the members of a deceased husband's family have family property it lies not on the widow claiming separate mainte- nance to show that her withdrawal was necessary or proper, bat on them to show that it was improper or else '^ that the family property is so small as not reasonably to admit of an allotment to her of a separate maintenance.^^ (c)
The diflFerent incidence of the burden of proof thus established will not probably produce much variance in practice. Under the British rule, a widow could make herself so disagreeable that the members of the husband's family would be glad to part with her on any reasonable terms, and mere disagreement has in some instances been thought by the Sastris a sufficient ground for approving a separate maintenance.
The right to maintenance is by the common law one ''accruing from time to time according to the wants and exigencies of the widow. " (rf) The limitation to a suit for a declaration of the right is now 12 years under Act XV. of 1 877, Sched. II. Art. 1 29, so that decisions under the preceding Acts limiting the claim to 12 years from the husband's death
(a) L. R. 6. 1. A. lU. (6) I. L. R. 3 Bom. 372.
(c) See Ramchandra v. Sagundbdi, I. L. R. 4 Bom. 261.
[d) Ndrdyani-do v. BamdbdU L. R. 6 I. A. at p. 118 ; S. C. I. L. 3 Bom. 415. It cannot be attached : Rarnabai v. Ganesh, Bo. H. C. P. J. 1876, p. 188.
262 LAW OP INHKRITANCE. [boOK I.
are no longer applicable, (a) But thougli limitation arises on a time to be counted from the application and refusal^ the right is not to be referred to that demand as its origin so as to prevent the award of arrears in a proper case. (6) A decree fixes the payments awarded as a charge on the estate^ (c) and though future sums to become due are still inalienable (d) the amount decreed for arrears may be attached by the widow^s judgment creditors, (e)
Maintenance may be awarded for the future, subject if necessary to a variation on a change of circumstances. (/) The award or refusal of arrears rests in the discretion of the Court, (g) These decisions are obviously inconsistent with the sum payable for maintenance being a charge on the property in the strict sense of a real right in it. A wife's right to mainte- nance has been attributed to a kind of identity with her bnsband in proprietary right, but then her right is qaite subordinate. (A) She cannot deal with it nor can she
{a) lb,
(6) Jivi V. Bdmji Vdlji, I. L. R. 3 Bom. 207.
(c) Bam KiiUee Koer v. The Court of Wards, 18 C. W. R. 473 ; JSToom- aree Debia v. Roy Lrichmeeput Singh, 23 C. W. R. 33; Gangdbdi r. KrUhnaji Ddddji, Bom. H. C. P. J. for 1879, p. 2.
(d) This is recojjpiized generally by the customary law of castes, as in Borradaile, 0. Rules, MS. G. Sheet 32.
(e) Musst, Diiloon Koontour v. Sungum Singh, 7 C. W. R. 311; and see Kasheeshuree Debia v. Greesh Chunder Lahoree, 6 C. W. R. 64 M. R. ; and Hoymobutty Debia Chowdhrain v. Koroona MoyeeDebai, 8 C. W. R. 40 C. R.
(/) Bam KuUee Koer T. The CouH of Ward; 18 C. W. R. 473; Nubo Gopal Boy v. Sreemutiy Amrit Moyee DoMee, 24 C. W. R. 428; Narbaddbdi v. Mahddev Ndrdyan, I. L. R. 5 Bom . 99. The successor of a zamind&r it was said might readjust the terms of the grant made for maintenance to his predecessor's mother : Bhdvanamma v. Bdmasdmi, I. L. R, 4 Mad 193.
(g) See Jadumani Do8$ee*8 case, supra ; Raja Pirthee Sing T. Rams Baj Kooer, 12 Beng. L. R at p. 248 ; Ndrdyanrdo v. Bamdhdi, I. L. R. 3 Bom. 415 ; S. C L. R. 6 1. A. 114 ; Venkopadhydya v. Kdvan Hengasu, 2 Mad. H. C. R. Z6. As to the amount to be awarded see Sreemutiy Kittokissoi'ee Dosftee v. Jogendronath Mullick, L. R. 5 I. A. 55.
{h) Jamna v. Mochul Sahu, I. L. R. 2 All. 315.
INTBODUCnON.] MAINTENANCE. 263
effectively release her husband and his heirs from her right to subsistence (a) by a document executed in the husband's life, though the amount of her subsistence may thus be defined in case of a disagreement in the family.
The maintenance of parents (h) and of children in a united family is provided for by the law which determines their several interests. This is discussed under the head of Partition. Apart from property or after a partition the parents are always entitled to subsistence from their sons, (n) The adult son is not usually entitled to support by his father, {d) but in extreme indigence the right arises in favour of one who is incapable of maintaining himself, (e) These rights cannot however be considered as charges on the property held by those subject to them, though the extent of the corresponding obligation depends very much on the means by which it can be satisfied. Illegitimate children not taking a share of the estate are entitled to maintenance (/) but not in general as a charge on the property, though the fether of a Sudra may allot a share to him, (g) and in the higher castes may make a grant, (h)
In families in which a rule of primogeniture prevails, that is generally in families holding estates granted for the sup- port of some public service of importance, the younger members are entitled to a provision by way of appanage in
(a) Lakshman Bdmchandra v. Satyahhdmdbdi, I. L. R. 2 Bom. 494, 603 ; Narbaddbdi v. Mahddev NdrdyaUj I. L. R. 6 Bom. 99.
(b) A son must always support bis parents, his mother even though ■he be an outcaste. Baudh. Tr. 230 ; Gaut. Tr. p. 279.
(c) See Manu quoted Col. Dig. Bk. V. Ch. VF. T. 379, Coram.
(d) Premchand Pepara v. Hoolaschand Pepara, 12 C. W. R. 494.
(e) Col. Dig. Bk. V Ch. I. T. 23; Smriti Chand. Ch. II. Sec. I. para. 31 ss. ; Steele, L. C. 40, 178.
(/) Rdhi V. Govind, I. L. R. 1 Bom. 97 ; Sri Gajapaihi Radhik v. Sri Gojapathi Nilamani, 13 M. I. A. at p. 506.
(g) Coleb. in 2 Str. H. L. 68. See below, Bk. I. Ch. VI. Sec. 2, Q. 2, Rem.
(^) Ttaja Pmichat v. Zalim Singh, L. R. 4 I. A. 159.
264 liAW OF INHDBITANOE. [boOK I.
the shape either of an assignment of the revenue of particular villages or lands^ or else of an income out of the general revenue of the impartible estate, (a) It often happens that a family which has an estate of this kind has also property apart from its watan or estate appropriated to public pur- poses. When that is the case there may be a partition if there is not a family usage to the contrary, in which the *' service lands'* are taken into account along with the other property in the aggregate for partition. They are assigned to one of the sharers, and if impartible may make that share larger than the others. The lands however though subject to provide for a public service may still be partible within the family, and this is a very common case. When the partible estate is insignificant, the holder of the impartible estate is subject to claims for maintenance of the junior branches of the family so far as he can support them. No precise limit has as yet been set to the degree of family connexion on which the right and obligation depend, (b) An allotment of land or revenue seems to continue to lineal descendants in the branch, and on their extinction to revert, (c) But sometimes it is absolute, {d)
When a share is unsuccessfully sued for by a widow or a member of a junior branch of a family it is the practice of the Courts to award maintenance if the right to it is estab- lished in the course of the trial, {e)
(a) Steele, L. C. 229 ; S/iidhojirdv v. Naikojirdv, 10 B. H. C R. 228 ; Narsinh Khanderav v. Yddamxtv, Bom. H. C. P. J. 1882, p. 346; Clu)wdhry Hureehur Pershad Doss v. Gocoolanund Doss, 17 C. W. R- 129, 0. K.; comp. Imperial Gazetteer of India, Art. Rajput&n^ vol. VII. p. 620.
(6) See Sleeman, Journey through Oude, vol I. p. 169, 173; aboTe, p. 242 ; and Sdvitriavd v. Anavdrao, 12 Bo. H. C R. 224.
(c; Raja Woodoyaditto Deb v. Mukoond Narain, 22 C. W. B- 225-
fd) Salur Zaminddr v. Pedda Pakir Eaju, I. L. R. 4 Mad. 371.
(e) Rakhmdbdi v. Bdihdbdi, 5 Bom. H. C. R. 193 A. C. J. ; RdiMi V. Sadu Bhiwdnif 8 Bom. H. C. R 99 A. C. J. ; Shidliojirdv v. ^diko» jirdv, 10 Bom. H. C. R. 228, 234.
WTBODDCTION.] WOMAN* S PfiOPBRTT. 265
An allowance for maintenance fixed by a decree '* is ordinarily liable to be varied if the party ordered to pay it shows that there are circumstances which render it equitable to vary the amount/' and '* no Court/' it was said, "wonid pass a decree fixing a grant of maintenance in perpetuity/' (a)
§ ll.-ON STRIDHANA OR WOMAN'S PROPERTY.
The simple etymology of the word ' Stridhana/ ' woman's property/ afibrds little or no guidance towards deter- mining its exact comprehension. The principal divergencies of view indeed amongst the native commentators may per- haps be ascribed to their efibrts to get more out of the term than it really contains, to find a sufficient and decisive direction in that which in itself is essentially ambiguous. (/>)
The expression ' Stridhana' may obviously connote: —
(1) A limitation of woman's proprietary competence to certain kinds of things amongst those regarded as generally admitting of ownership.
(2) Special limitations or extensions of the rights and competencies of the woman, as compared with the man, in transactions concerning things her ownership of which is recognized.
(a) Narsinh Khanderdv v. Yddavrdv, Bom. H. C. P. J. 1882, p. 345.
(b) The principles of interpretation professedly followed by the Hindft lawyers are closely connected with their philosophical sys- tems. See the Introduction, above, pp. 11, 14; Coleb. Essays, Vol II. page 239. In practice, " the interpretations of Indian coraraentators, even if traditional, are chiefly grammatical and etymological, explain- ing every verse, every line, every word by itself, without inquiring if the results so obtained harmonised with those derived from other quarters." Roth, quoted 2 Muir's Sanscrit Texts, 169 Note, 200, though an isolated construction of the texts is condemned, ibid., page 177. Though the hairsplitting habits of the Commentators are ▼ery puzzling to a European, and they constantly appeal to standards which he cannot accept, their conclusions are generally wrought out with rigorous logic from the data assumed by them. Many of their
84h
266 LAW OP INHERITANCE. [bOOK I.
(3) A special course of devolution, on a woman's death, of the property owned by her while living.
Thus we have — (1) the ordinary enumerations of the six or more kinds of Strldhana ; (2) the woman's unlimited right to deal with Saudayakam, coupled with the restrictions im- posed by some lawyers on her dealings with immoveable property; and (3) the rule, referred to by Ellis, (a) that " sons shall succeed to the father, and daughters to the mo- ther/' Jimfttavahana (h) defines Strldhana as that which a woman may alien or use independently of her husband, (c) Vijndnesvara defines it as property which a woman may have acquired by any of the ordinary modes. What property she is capable of owning, if there be any discrimina- tion between this and the property of males, is not a point embraced within either definition, though if any diflference exists, the definition ought apparently rather to have rested on this than on the particular rules which could apply only when the character of the property had been first establish- ed. Nllakantha, in the Vyavahara Mayiikha, {d) does attempt to define Strldhana by an enumeration of .its several constitu-
rules of construction are identical with those of tho English law. Thus the more general, it is said, yields to the more particular, and the determination of which is the more general and which the more particular in any case is to be made by an application of trained experience. See Vijnauesvara in Macn. H. L. p. 188. Instances of an expression, taken by some literally and by others as a * dikpradarsana/ or indication of a principle, are discussed in this volume. For the use of * Ganas,' suggestions of class, see Barneirs Introduction to Varadr&ja's Vyavahara-Nirnaya, p. xiii. The Vedic Commentator Vallabha propounds the perfectly correct principle : ** A vedic text cannot be interpreted by itself : its context must be considered and the interpretation must harmonize with other texts of the Veda bearing on the same subject." See the Mim&nsadarsana, p. 371.
(a) 2Str. H. L.405; «ee Coleb. Dig. Bk. V. Ch. IX. Sec. 1, T. i6l; and N&rada, Vivadapada, Ch. XIII. 7, 2, Transl. p. 94.
{b) Dayabh&ga, Ch. IV. Sec. 1, p. 18 ; Stokes, H. L. B. 240.
(c) Coleb. Dig. Bk. V. T. 470.
{d) Ch. IV. Sec. 10; Stokes, H. L. B. 98.
INTRODUCTION.] WOMAN's PROPERTY. 267
ents ; but accepting the word ^ other, ' (a) in a text of Y&jna- valkya, as allowing an indefinite extension of the objects of woman's ownership ; he is led to divide Stridhana into two classes, according to its devolution, either as prescribed by texts bearing on particular elements of it, or under a resi- dual rule, which he (h) draws from another passage of Ydjna- valkja, and which brings the inheritance to all other kinds of Stridhana under the rules applicable to a male's estate.
The notion set forth by Apastamba, (c) as held by some, is that, though the wife, being identified with her husband in the fruits of piety, and the acquisition of wealth, might during his absence expend the common funds without being guilty of theft, yet in a partition, her share comprises only her ornaments and the wealth given to her by her relations. From this to the liberal rule of Yajnavalkya, as construed by the Mitakshara, it is possible to trace in the Smritis some- thing like a gradual development of the recognized capacity of women for property, which may have corresponded in a measure to the successive generations in which the texts were framed, but which at any rate indicates by its progressive reception and influence a growing predominance of personal regard towards wives and daughters over the harsher regulations of the earlier Brahmanical law. Baudhdyana indeed (d) provides only for the succession, in the case of woman's property, of daughters to their mother's ornaments, consistently with his rule that women are excluded generally from inheritance. In Vasishtha, (e) daughters are admitted to divide the nuptial presents of their mother. Manu enumer- ates (/) [1] gifts at the bridal altar, [2] in the bridal pro-
(a) ** Adhivedanika ddyam"=" a gift on supersession and so on/' Tajn. II. 143, Stenzler. {h) See para. 26; Stokes, H. L. B. 105.
(c) See Prasna II. Patala. 6, Kan. 14, Si. 9 in the Appx.
(d) Prasna 11. Kan. II. 27.
(e) Ch. XVII. 24. (/) Ch. IX. SI. 194.
268 LAW OP INHERITANCE. [bOOK I.
cession, [3] as a token of aflfection, or [4] from a father, [5] mother, or [6] brother, and to these Vishnu adds gifts by sons, the present on supersession, the wife's fee, and the gift subsequent. The gift subsequent [by parents and relatives] may be considered as included in Manu's ^prltidatta' or gift as a token of affection, (a) and then the renA additions are the son's gift, the fee (sulka), and the gift on supersession through the husband's marrying another wife {Adhiveda' vika), N&rada, who presents some indications, according to Dr. Jolly, of modern influences, merely repeats the rule of Manu, (h) with a substitution of a gift from the husband in place of the '' gift as a token of affection," which might be taken more extensively, (c) Devala goes much further. He says that a gift to a woman for her maintenance, her fee (sulka), and her gains (l^bha) shall be her separate property or Stridhana. (rf) The Viramitrodaya limits the labha to *' gains received in honour of Graurl and other deities," but this restriction seems to be arbitrary, (e)
Lastly, comes the passage of TSjnavalkya (II., 144) quoted by Mitramisra in the Vtmmitrodaya. As quoted ty Ja^annatha and by JimAtav&hana, (/) the passage seems not to have the word * Adyam,' on which Vijfi&nesvara in a great measure builds his construction, (ij) This is in itself vague, since the words '^ and the rest" or *' the like"
(a) See Culeb. Dig. Bk. V. Cb. IX. T. 465, 468, Comra.
(b) See KArada, Vivddapada, Part II. Ch. XIII. 8, TransL p. 95.
(c) See Mit. Chap. II. Sec. 11, p. 5; Stokes, H. L. B. 459; Coleb. Dig. Bk. V. Chap. IX. T. 462,€omm.
(d) See the Viramitrodaya on Stridhana, and Coleb. Dig. Bk. V. Chap. IX. T. 478.
(e) See the Srnriti Chandrik&, Chap. IX. Sec. 2, p. 15.
(/) See also Coleb. Dig. Bk. V. Chap. IX. T.463; D&yabhiga, Chap. IV. Sec. 1. para. 13 ; Stokes, H. L. B. 239; Mit. Chap. 11. Sec. 11, para. 2, note; Stokes, H. L. B. 458 ; Srafiti CbandrikA, Chap. IX, Sec. 1, para. 3, note (2).
{g) Stenzler, Y4jn. 143, translates this **und dhnliches"
INTEODUOTION.] WOMAN's PEOPERTY. 269
may be translated by reference to the preceding enume- ration 80 as to extend only to property acquired in a way Bimilar to those specified, (a) The Smriti Chandrik& adopts the reading " Adyam/^ (6) yet in the section on Stridbana makes no mention of property inherited by women, whence the translator of that work (c) and the High Court of Madras have concluded that inherited pro- perty is not Stridhana. Yet a widow according to the same aathority takes the property of her deceased husband in a divided family, (c/) and a daughter on failure pf the widow succeeds as a dayddi or sharer of the inheritance, (e) The Mit&kshar^, an earlier work, but under the influence of more advanced views, or as an easier solution of the questions arising on YSjfiavalkya's text, takes '^Adyam^^ as meaning "any other separate acquisition,'^ and indicates, by enumerat- ing "inheritance, purchase, partition, seizure, or finding," (/)
(a) See the M&dhaviya, p. 41. [h) Chap. IX. Sec. 1, para. 3.
(c) Translation, p. 110, note (1).
(d) Smriti ChandrikA, Chap. XI. Sec. 1, para. 24.
(e) Ibid. Sec. 2, p. 9 ; Sec. 4, p. 19.
(/) Mit. Chap. II. Sec. 11, para. 2 ; Stokes, H. L. B. 458. By ftdi (=and the rest) Vijndnesvara must have known that the passage quoted by him from Y&jnavalkya would remind his readers of the instances of female inheritance which he had already given {see Stokes, H. L. B. pp. 383, 427, 440, 441, 446). He could not but have excepted these expressly had he intended to except them. He found a varying enumeration of the constituents of Stridhana in Smritis, all of which bad a sacred authority, and adopted a generalization that embraced them all. This was an application of the received principle that whore different objects are named as of a particular class by different Smritis, all are to be included in it in order to preserve consistency {ekavdkyatd). Inheritance he specifies, and names it first ; the comprehensive final term shows that it is not iised in any restricted sense. Such words as ddi are constantly used in the Smf itis which were learned by heart to suggest a statement or a class by a single term. Yijn&nesvara, commenting on Y&jni^ ^alkya's smriti, interprets the other smritis by means of that, and
270 LAW OF INHERITANCE. [bOOK I.
• that a woman may acquire property in precisely the same ways as a man. (a) As to inheritance from her husband, Vijfianesvara supports the complete right of the widow by reference to B:'ihaspati's text, in her favour, (h) without the exception contained in another passage of the same Smriti, excluding her from succession to Nibandha or fixed proper- ty, (c) The daughter too inherits from her father, and thus inheriting becomes complete owner, as when she takes her one-fourth share in a partition. ( d) See Bk. I. Ch. II. Sec. 7.
Whether Vijnanesvara has not given to the text of Yajna- valkya a comprehension going much beyond the intention of its writer may reasonably be doubted. If we look back to the state of Brahmanical feeling as the expression of which the principal Smritis were composed, we find the position of women regarded as essentially dependent. Those who on account of their weakness had a claim to be protect- ed and maintained by their male relatives in their family of marriage (e) or of birth(/) were not likely to excite the com- miseration out of which might spring the moral and event- ually the legal recognition of their right to take the estate
of Gautama's, which also (Ch. XXVIII, 21) gives but a single general rule for the descent of Strtdhana and a single exception in the case of the sulka or fee. Other lawyers take other texts, as Manu IX, 192-4, 198, as the leading authority, and construe Ydjnavalkya and Gautama by them, but without any precise general agreement as to details.
(a) Ibid. Chap. I. Sec. 1, para. 8 ; Stokes, H. L. B. 366.
(b) Mit. Chap. II. Sec. 1, paras. 6, 30, 31. 39; Stokes, H. L. B. 428-439.
{c)See Smriti Chandrik&, Chap. XI. Sec. 1. para. 23; Mit. Chap. II Sec. 2. para. 1 ; Stokes, H. L. B. 440. This incapacity seems to be still recognized in the Sialkot district of the Panjab. See Panj. Cust.Law, II. 210.
(d) Ibid. Chap. I. Sec. 1, paras. 3, 8 ; Stokes, H. L. B. 365, 366; Sec. 7, para. 14; Stokes, H. L. B. 401.
(e) See Vy&sa quoted Varadr&ja, p. 39, and the Comment, p- 42; Viv&da Chintamani, p. 261, 262; above, p. 245 ss.
(/) See N&rada. Pt. II. Ch. Xin. SI. 28; above, p. 246.
INTBODUCTION.] WOMAN's PROPERTY. 271
dedicated equally to the celebration of eacrifices (a) to the dead as to the support of the living members of the family. Such a recognition was wholly opposed to the earlier ideas as to the ownership of land. Yaj naval kja himself regarded the inheritance as absolutely impartible and inalienable. Usanas says that such property is indivisible ^' among kins- men even to the thousandth degree/^ and Prajdpati is to the same effect. (6) Under such a law there would be no immove- able property for the widow or the daughter to take on the decease of the husband or father, and Brihaspati says (c) distinctly that a widow shall take her husband's wealth "with the exception of fixed property/^ as, '^evenif virtuous, and though partition has been made, a woman is not fit to enjoy fixed proper ty.^^ In this latter passage partition of the immoveable inheritance is as elsewhere in the same Smriti recognized, but the older note of exclusion of females as owners is still retained. Katyayana, fully recognizing par- tition, yet declares that immoveable property is not to be given to a woman ; {d) and Vyjisa says that the husband even is not to make her a present of more than a limited amount, apparently out of the moveable wealth, ie) So jealous was the Brahmanical law of any impairment of the family estate. The wife being, along with the son and the slave, in this ancient constitution of Hindu Society, "Nirdhana'' or without capacity for property, (/) and her
(a) Manu IX. 142 ,• Coleb. Dig. Bk. V. T. 413, 484, Comm. ; and compare Coulanges La Cite Antique, Bk. II. Ch. VII.
(b) Smriti. Ch. 1. c, p. U, 46.
(c) Il^id. Ch. XI. Sec. 1, para. 23.
(d) Vyav. May. Ch. IV. Sec. 10, para. 6; Stokes, H. L. B. 99.
(e) Vyav. May. loc. cit.; DdyabhAga, Ch. IV. Sec. 1, para. 10; Stokes, H. L. B. 238. Compare Coulanges, La. Cit^, Bk. II. Ch. VI.
(/) See Manu and N4rada as quoted below. The Smriti Chandrik& tries to explain away " Nirdhana" as incompetent for transactions, not as incapable of holding property. See Transl. Ch. IX. In China all property owned or inherited by a wife passes to the husband in eonseqaence of the poiesias with which he is invested, as auder the
272 LAW OP INHBEITANCB. [bOOK I.
competence in that respect having been extended by steps, which seem to have been always jealously watched and re- stricted, the rather sudden and indefinite expansion, which the Mitakshar& supposes Yajnavalkya to have pfiven to it seems opposed to all probability. Apart from Vijnanesvara'a authority we should rather construe the words " and the resf by reference to the context, and explain them as meaning '* other kinds sanctioned by express scripture or by custom that may be referred to it/' That Vijnane- svara himself accepted the text in its widest signification cannot reasonably be doubted, (a)
It is this construction which underlies his whole subse- quent treatment of the subject of inheritance. This is the construction which the Vlramitrodaya (b) adopts and which Jlmfttavahana understands while he combats it. (c)
earlier Roman Law See Joum. of N. China Br. of the R. A. Society, Part XIII. p. 1 12. Women were regarded by the Teutonic laws as ne- cessarily dependent, and the traces of this order of ideas still remain in the English law. The proper guardian was the husband, father, brother, or son, the nearest agnate or the King's Court. Lab. op. cit. 394. So under the early Roman Law. See Mommsen, Hist, of Borne, vol. I.
(a) A conclusive confirmation of this being the sense of the Mit&ksharA may be drawn from an exceptional case. Inheritance is by Vijiianefivara named as first amongst the sources of ownership {eee Mit. Ch. I. Sec. I. para. 12). There is a passage of Baudh&yana which says, '* the uterine brothers take the property of a deceased damsel.*' Here is a special rule of inheritance to Stridhana in the particular case. Vijiianeivara, amongst the rules on Stridhana, says that under it the brothers take the property "inherited by her." Thus the inheritance constitutes Strtdhana,and the heirs of the womaOf not heirs of the former owner, take it on her decease.
Similarly in the Vyavah&ra MayOkha, Ch. IV. Sec. 10, para. 26, property taken by inheritance is distinctly ranked as Stridhana by the distinction drawn between it and Stridhana of the less important specified kinds to which special texts apply.
{b) Section 1, p. 4 ff, below.
(c) D&yabh&ga, Ch. IV. Sec. 2. p. 27 (Stokes, H. L. B. 250) j Sec. 8, p. 4 {ibid. 251), compared with Mit. Ch. II. Sec. 11, p. H («**'
iNTBODucnoN.] woman's pbopebty. 278
Bj what precise coarse the HindA woman^ from the con- dition of complete dependence, from being Nirdhana, rose in the estimation of the Br&hman lawyers to the high position assigned to her by Vijnanesvara, cannot probably, upon the existing sources of information, be determined with any certainty. Sir H, S. Maine, tracing her right to property to the Bride-Price paid for the damsel taken in marriage and in which she shared, remarks (a) : —
"If then the Strldhan had a pre-historic origin in the Bride-Price, its growth and decay become more intelli- gible. First of all it was property conferred on the wife by the husband 'at the nuptial fire,^ as the sacerdotal Hindu lawyers express it. Next it came to include what the Romans called the dos, property assigned to the wife at her marriage by her own family. The next stage may very well have been reached only in certain parts of India, and the rules relating to it may only have found their way into the doc- trine of certain schools ; but still there is nothing contraiy to the analogies of legal history in the extension of the Stridhan until it included all the property of a married woman. The really interesting question is, how came the law to retreat after apparently advancing farther than the Middle Roman Law in the proprietary enfranchisement of women, and what sure the causes of the strong hostility of the great majority of Hindu lawyers to the text of the Mit&kshari, of which the authority could not be wholly denied ? There are in fact clear indications of a sustained general effort on the part of the Brahmanical writers on mixed law and religion, to limit the privileges of women which they seem to have found recognised by elder autho- rities."
460). So also the Smf iti Chandrikd, which, though it does not allow inheritaoce as a source of stridhana {see Transl. Ch. IX. Sec. !.)> yet admits that the Mit&kshar& does so (Transl. Ch. 1Y. para. 10). Tho YiT&da Chint&mani and the Sarasvati Yil&sa follow the Mit&kshar&, See below, (a) The " Sarly History of Inttitationt/' pages Z24, 333. df ■
274 LAW OF INHERITANCE. [bOOK I.
And again (a) : —
" On the whole the successive generations of Hind A lawyers show an increasing hostility to tlie institution of the Stri- dhan, not by abolishing it, but by limiting to the utmost of their power the circumstances under which it can arise.
The aim of the lawyers was to add to the family
stock, and to place under the control of the husband as much as they could of whatever came to the wife by inheritance or gift, but whenever the property does satisfy the multifarious conditions laid down for the creation of the Strldhan, the view of it as emphatically ' woman^s property ' is carried oat with a logical consistency very suggestive of the character of the ancient institution on which the Brahmanical jurists made war. Not only has the woman singularly full power of dealing with the Stridhan — not only is the husband de- barred from intermeddling with it, save in extreme distress — but, when the proprietress dies, there is a special order of succession to her property, which is manifestly intended to give a preference, wherever it is possible, to female relatives over males/'
That the institution of Bride-purchase existed amongst the Hindfts, and for a time even amongst all classes, seems almost certain. Manu recognizes it (Ch. VIII., 204) and guards against fraud on the purchaser by giving to him both of the young women when an attempt is made to substitute one for another. Apastamba says (6) : —
'* It is declared in the Veda that at the time of marriage a gift for (the fulfilment of) his wishes should be made (by the bridegroom) to the father of the bride, in order to fulfil the law. ^ Therefore he should give a hundred (cows), besides a chariot; that (gift) he should make bootless (by returning it to the giver).' In reference to those (marriage
(a) Op. cit. p. 333.
{b) Praina II. Patala 6, Kan. 13, para. 12 ; see also Maun III. 51 J and Vasishtha I. 36, 37.
INTRODUCTION.] WOMAn's PEOPEBTY. 275
rites) the word * sale/ (which occurs in those Smritis is only used as) a metaphorical expression ; for the union (of the ksband and wife) is eifected through the law.*^
This shows at once the former prevalence of the practice and the abhorrence with which at a later time it came to be looked on by the Br&hmanical community, (a) It had then become peculiar to, and therefore distinctive of, the lower castes, Vaisyas and SAdras, (b) though in the approved Arsha form of marriage, a gift of a bull and a cow, to the bride's father was still prescribed, (c) a remnant, probably of a practice amongst a pastoral people, of com- pensating the family which lost the daughter in the most usual and valuable form of property then recognised. The formula prescribing the gift survived the circumstances in which it originated, but still exacted observance through the associations with which it was connected, (d) Manu, (e)
(a) 8ee Baudh&jana, Transl. p. 208.
{h) Apastamba, Praiina IE. P&tala 5, Kandika*l2, para. 1 ; Oaut. IV. 11 ; Y&jnavalkya I. 58, 61 ; Coleb. Dig. Bk. Y. T. 499. At 2 Borr. R. 739, there ia a case, Maseamat Rulivat v. Madhowjee Pdndchund, of a mother (a widow) receiving Rs. 700 for consenting to her daughter's marriage which ** was deemed disgraceful and was only done secretly," but which did not invalidate the betrothal made in consequence. Secret sales of girls are, it is believed, still very com- mon in Gujardt even amongst the classes which publicly condemn the practice.
(c) Apast. Pral. II. Pat. 5, Kand. 11, para. 18 ; Manu III. 53 ; Vasishtha I. 32.
(d) That kine were a common form of gift in the Vedic period, see 6 Muir's Sanskrit Texts, 467. In the Huz&ra district it is noted that the bridegroom gives his bride a milch cow and some jewels as a pre- mium when their cohabitation begins ; and that she is persuaded to forego the rest of her promised dower. By a complete inversion of the ancient ideas a price is given nominally to buy jewels for the bi-ide at betrothal, but usually to the father, who appropriates it. Panj. Cnst. Law, II. 220. On the important place of cows in the wealth of a family amongst the ancient Irish, see 0*Curry's Lect. I. 172, Ac.
(«) Ch. III., paras. 25, 31, 51.
276 LAW or iNHBEiTAifcni. [book I.
who condemns the Asura form of marriage, recognizes it as Btill in vogae, and as distingaished by a consent gained bj a liberal gift on the part of the bridegroom to the bride's father and the bride herself, (a) This gift is not, however, by Mann identified with that " gift before the nuptial fire/' (l) which may accompany the most approved marriages. Vyasa (c) defines the Sulka as the bribe given to the bride to induce her to go to her husband's house. Vijfi^ nesvara, {d) commenting on Yajnavalkya II., 143, 144, who enumerates the nuptial gift as distinct from the ' Sulka,' or * fee,' calls the latter ' the gratuity for which a girl is given in marriage' ; and the Vishnu Smriti also (e) distinguishes the Sulka from the gift at the nuptial fire. K&ty^yana dis- tinguishes the nuptial gift (/) from the Sulka, which latter he defines as " what is received as the price of household uten- sils, of beasts of burthen, of milch cattle (^), or ornaments of dress, or for works.'' (h) This definition, though passed by in silence by the Mitaksharft, is adopted by the Vyavahfen Mayftkha, (i) by the Vivada Chintamani, {j) and with a somewhat difierent reading is adopted by Jimfitavahana in the Dilyabhdga (&) This writer insists that the gift of the
(a) So the Ratn&kara. See the Smfiti ChandrikA, Cb. IX. Sec h para. 4, note.
(h) ManalX. 194; III. 54.
(c) DAyabhAga, Ch. IV. Sec. 3, para. 21 ; Stokes, H. L. B. 255.
{d) Mit. Ch. II. Sec. 11, para. 6 ; Stokes, H. L. B. 460.
(e) Ch. XVII. 18.)
(/) Mit. Ch. II. Sec. 11. para. 5; Stokes. H. L. B. 469.
ig) DeGubornatis, Storia Comparata Degli Usi Nuziali, Bk. I. Cbap. XV. p. 95, points to ** 11 dono d*una vacca che lo sposo Indiano facero alia aposa e al prete maestro." Compare Y&jn. 1. 109 ; ManuXI. 40.
(h) Smriti ChandrikA, Chap. IX. Sec. 10, para. 6 ; M&dhaviya, p. 41.
(t) Chap. IV. Sec. 10, para. 3; Stokes, H. L. B. 98.
U) p. 228.
(*) Chap. IV. Sec. 3, para. 19 ; Stokes, H. L. B. 254. See also Coleb. Dig. Bk. V. T. 468; VaradarAja, p. 46.
INTEODUCTION.] WOMAN's PROPERTT. 277
ordinary Sulha may accompany a marriage in any form, (a) and is to bo carefully distinguished from the oulka pre- sented in marriages according to the disapproved forms to the father or brothers giving the damsel in marriage. The latter, he says, belongs to them alone, (b)
Varadrfija, page 48, admitting the* two kinds of Sulica, says that the '' Bride-Price** goes to the mother or the brother, while the gift made for the purchase of ornaments and fur- niture reverts on the woman^s death to its giver. Mitra- misra says there is a Sulka given in the form of ornaments
(a) D&yabh&ga, 1. c. para. 22 ff ; Stokes, H. L. B. 255,
(b) Amongst the Jews "a dowry or purchase money was usually given by the bridegroom to the bride's father." Milman, History of the Jews, I. 174. The ancient Germans purchased their wives, and the form remained after the reality had passed away. See Guizot, Hist, de la Civ. Fr. Le^. VII. The co-envptio of the Roman law was in form a purchase of the bride. Gains I. 113.
To buy a wife remained in the Middle Ages the common expression for an engagement to marry. No bargain being complete without a change of possession, the suitor paid money for the mundium or guardianship and control of his intended bride, or earnest, on account of it, and this pajrment completed the marriage contract. (This pay- ment of earnest, and the deposit of valuables as security, is still common in Bombay.) The sum stipulated was in progress of time always secured as a provision or part of the provision for the wife, and the pledging of the husband and his estate was in early times the wedding. As the bride assumed greater independence the earnest-money came to be paid to her, and in the English ceremony was eventually appropriated by the priest as a fee. The effacement of the guardian brought about the marriage per verba de praesentt, which may be compared with the Hind^ G&ndharva rite, but which was never received as sufficient in England. The confusion between betrothal or marriage, or the variance of opinion in regarding the one or the other as the essential ceremony, has prevailed alike in Europe and in India. See Baring Gould, Germany, Ch. V. ; NdradalL, XII., 32-35. If the bridegroom had failed to purchase the mundium or guardianship of his bride from her father, the latter, according to the Code of the AUemarmi, could reclaim her with damages, and if meanwhile she died leaving children, these ranked as illegitimate. I*b. op. cit, 393. The purchase money becoming by degrees the do$
278 LAW OF INHERITANCE. [bOOK L
for the bride to her parents, and another as a present to her on her going to her husband^s hoase. (a)
This perplexity of the Smritis and the commentators over ^'Sulka/' as a gift to the parent or brothers, and as a gift to the bride, as a gift at the marriage, at the time of the bride's change of residence, and as a fund for procuring hoQsehold goods and ornaments, shows that at a very early date the word had lost the definite sense of Bride-Price," if it had ever been confined to it. Stenzler translates Sulka as ^'Morgengabe/' (b) but this gift on the morning after the completed nuptials, an important institution amongst many nations, (c) seems not to have obtained special recognition amongst the Hindus. It would indeed be incompatible with the spirit of modesty with which, according to their
legitima or marriage gift of the bride herself, was subject to the husband's mundium and fell to him on his wife's predeceasQ ; but it belonged to her inalienably in case of her survival. Lab. op. cit. 403. The Weotuma or Witthum by which parents provided against their daughter's being absolutely dependent on her husband consisted of land, money or stock {see below), and it was regarded as essential to a true marriage, so that when there was nothing to give, the bride- groom went through a form of receiving. In return he used to settle lands or houses on his bride. It was only when she was poor that she had to depend wholly on the morgengabe, and hence an unequal marriage acquired the name of " Morganatic."
In China the betrothal or marriage contract is made by the heads of the families, but before matrimonial union the bridegroom has to buy the potestas'of the father. This is not reduced to a mere form like the Roman coemtio, but is a serious and expensive transaction. The wife thus passes into her husband's agnatic connexion and forsakes her own.
(a) See Vtramit. Tr. p. 223.
(6) Y&jnavalkya, II. 144.
(c) In Ireland the Coibche (= morgengabe) gradually absorbed the bride-price as Christianity softened the manners of the peoplci and then a part of the gift (called Tindscra) was handed to the ^Either as a consideration for his resigning at once the person and guardianship of his daughter. See O'Curry, Lect. 1. 174 ss. See De Gubematis Storia Comparata, Lib. III. Ch. VII., Ancient Laws of
iNTRODUonoN.] woman's peopeety. 279
law-givers, the relations of the spouses are to be governed, (a) All the Smritis, which deal with the subject, agree that this Sxdka goes on the woman's death childless to her brothers or her parents, (6) for which no good reason could easily be found, unless the more primitive idea, attached to the word, had been that which it really expressed during the formation of the law. All agree too that the property of a woman married by the Asura rite goes to her own family(c)
Wales, p. 47, § 62, 66, A practice prevails amongst some castes in Western India which may possibly have originated in the same way as the " Morgengabe." On the first night of cohabitation the elder women of both families conduct the married pair to their chamber, and seat them together on the nuptial bed. The bridegroom then pats a gold ring on the bride's finger, and ties in her sort or scarf two gold coins. The analogy of this to the use of the wedding ring, the gift of money now taken by the priest, and the concurrent decla- ration ** with all my worldly goods 1 thee endow," (Bl. by Kerr, vol. II. p. 114,) in the English marriage service is carious and interesting. The gift makes the property Stridhana. The male parents also are present in some cases. The bride's mother retires telling the bride by all means to insist on the agreed prcertfiiivm pulch/ritudlnis. The door is then closed ; but outside it the sisters or cousins of the married pair sit in opposite lines, and for two or three hours sing alternately on loTc and marriage.
(a) The morning gift of favour became in time a matter of contract, and marriage articles eventually stipulated as a rule for a settle- ment as m(ytge7tgabe of one-fourth of the bridegroom's property by way of dower on the intended bride. This, however, does not seem to be the gift intended by Sulka in the Smritis. See Lab. op. cit 407; Baring Gould, Germany, &c., p. 89. Where a husband had failed to present the morgengabe, the wife, if left a widow, could claim generally one-third of all acquired lands. The dower and morgengabe thus became confused, and in the English law were not distinguished, 5e€ Bk. I. Ch. II. Sec. 6 A. Q. 7, note.
(6) See the Transl. of Gautama XXYIII. 23 ; K&ty&yana, quoted %abh&ga, Chap. IV. Sec. 3, para. 12; Stokes, H. L. B. 253; I&jnavalkya, ibid, paras. 10, 26 ; Stokes, H. L. B. 263, 256.
(c) D&yabhAga, Chap. IV. Sec. 2, para. 24 ; Stokes, H. L. B. 249; Hit. Ch. II. Sec. 11, para. 11 ; Stokes, H. L. B. 460; Mann IX. 197; Yftjnavalkya, II. 145.
280 LAW OF INHEBITANOB. [bOOK L
on her death without children. According to most of the commentators the same rule is prescribed by Ydjnaval- kya as to a gift by her own kindred, (a) VijMnesvara himself, while he converts the rule in favour of the woman's kinsmen generally into one favouring her husband's kins- men, (6) as the necessary complement of the wide extension that he had given to Stridhana, is forced to set aside his own construction in favour of the brothers, who take the Sulka not only as relatives, but under a special text in their favour, (c) The Vyavah&ra Mayftkha, {d) adopting the Mit&kshar&'s doctrine as to Stridhana, defined by special texts, admits the brothers' right to the Sulkay and in the case of an Asura marriage the right of the woman's own family to property arising from gifts made by them*
This identity of rules in cases which the modern Hindu law widely distinguishes must probably have originated in some common cause. The form of capture recognised for soldiers as the Rakshasa rite (e) still subsists as an essen- tial part of the marriage ceremony amongst several of the uncivilized tribes of India. (/) The resistance of the
(a) D&yabh&ga, Chap. IV. Sec. 3, paras. 10, 29 ; Stokes, H. L. B. 253, 257; Coleb. Dig. Bk. V. T. 603 ff. The Teutonic Codes provid- ed for a gift by way of advancement on the part of a father or brother at a ma iden's marriage. This, which the Lombard law called faderfium, w^as inherited by the' bride's children, in default of whom it returned to her family. Lab. op, cU. 409; Grans, Erbrecht, III. 176.
(6) Mit. Chap. IL Sec. 11, paras. 9, 14 ; Stokes, H. L. B. 460; Coleb. Dig. Bk. V. T. 508, 509, 612, Comm.
(c) So the Smriti Chandrikd, Chap. IX. Sec. 3, paras. 27, 29, 33.
id) Chap. IV. Sec. 10, paras. 27, 32 ; Stokes, H. L. B. 105, 106.
(e) Manu, IIL 26, 33. An allusion to it seems to be made in the passage from the Rig. Veda X., 27, quoted in Muir's Sanskrit Texts, vol. V. p. 458. The authority exercised by brothers is alluded to, Hid, This in Vasishtha, I. 34, is called the Ksh&tra rite.
(/) See Lubbock's Primitive Condition of Man, pp. 76, 86; Transactions of the Literary Soc. of Bom. vol. I. 285 ; Tupper, Panj. Cust. Law, vol, II. 90 ss; Rowney, Wild Tribes of India, p. 1^
INTRODUCTION.] WOMAN's PROPERTT. 281
bride's relatives was an assertion, until it became a mock assertion, of rights, (a) which seems to have been exercised by the ancient Britons amongst many other nations* It is a step in advance when marriages resting on contract, and distinct exogamous families are formed, as in India they seem to have been at a very early period, (6) and the legend of Drau- padi can be looked on as remote from national experience. Thi^ advance is, in some instances, accompanied by a deve* lopment of ancestor worship, which gives a sacred character to the head of the family, (c) and the father or eldest
(Gond8);p. 37 (BMls); p. 46 (K&this, amongst whom as amongst the P&hanas and others the niyoga or levirate prevails); p. 68 (Kholk); p. 76 (Santhals, who before a maid's marriage require her to take part in a week's sexual orgy like the Babylonian feast of Mylitta) ; p. 81 (Oraons; ; p. 147 (Koches, amongst whom the bride- groom becomes a dependent. oi the wife's mother); p. 177 (Oach&ris).
(a) See however McLennan's Studies in Ancient History, p. 425 flF.
(b) The story of Yama, Rig. Veda, X. 10, 1, marks the abhorrence with which an incestuous connexion was looked on already in the Vedic period. See 6 Muir's Sanskrit Texts, p. 289. In some tribes, as amongst the Jats of Rohtak, a marriage is not allowed to a woman of the father's, mother's, or father's mother's clan. See Rohtak Settlement Report, p. 66.
(c) See Muir's Sanskrit Texts, Vol. V. p. 295 ; Tylor's Primitive Calture, Vol. II. 103, 109; Coulanges laGit^ Antique, Bk. I. Ch. II. Bk. II. Ch. VIII. The dependence of sons under the early Br&hmani- cal law may be gathered from Manu 1. 16, and N&rada, Pt. I. Ch. III. pa. 36; " Women, sons, slaves, and attendants are dependent, but the head of a family is subject to no control in disposing of (or dealing with) his patrimony, " as well as Pt. II. Ch. V. para. 39. In Ch. IV. para. 4, it is said that a son or a wife can no more be given away than a thing already promised to another ; which indicates, as does Y4jnavalkya III- 242, how far the patria potestas had been pushed. See too Vasishtha, Ch. XV. A similar superiority is assigned to the eldest brother by the Smriti cited in Coleb. Dig. Bk. II. T. 15, Manu IX. 105, directs the eldest brother " to take entire possession of the patrimony," and the others to " live under him as under their father." The modiBcations introduced at a later time appear from Kulluka's comment, and the following verses of Manu, as also from Narada, Pt. II. Ch. XIII. para. 5; and the modern law from Jagan-
36h
282 LAW OF INHEBITAROE* [bOOK I.
brother is foand exercising despotic power over its other members. He will not part with his daughter or sister except for a reward, (a) Natural affection leads to liis endo?nng the bride with some portion of the gain; it becomes a point of honour and ostentation to do this, (h)
n&th&'s remarks, in Goleb. Dig. 1. c. The cases of Duleep Singh H al V. Sree Kishcwn Panday. 4 N. W. P. B. 83 ; AJey Earn v. Girdham €i al, ibid. 110 ; and Musgt. Bhotmia et dl v. Roop Kishore, 5 Und. 89, may be compared with Jugdeep Nwrain Singh v. Deen Dyal LdU el (d, L B. 4 1. A. 247 ; and Mohabeer Pershad et al v. Ramyad Singh el d, ibid. 192 . The absence of ownership in a wife and son is insisted on in a way which shows that its existence had once been recognized. See Vyav. May. Ch. IV. Sec. 1, p. 11, 12 (Stokes, H. L. B.45); Ch- IX. Sec. 2, para. 2 (ibid, 133) ; Coieb. Dig. Bk. II. Ch. IV. T. 5 J, 9, Comm. The HindA law on this point may be compared with the Boman law as to the patria potestas in its original and its mitigated forms. See Bynkershoek's treatise on this subject.
(a) As to the sale of wives amongst the Kholes and other tribea* 8ee Bowne/s Wild Tribes, pp. 47, 177, 200. The wife thus acquired being not unnaturally looked on as property, he who took her on her husband's death became answerable, as having received the estate, for the debts of the deceased. See N&rada, Pt. I. Ch. III., pans. 21—24. In his account of the Him&lyan Districts of thel?. W.P., p. 19, Mr. Atkinson says : " the practice of accepting a sum of money for a daughter is gaining ground." This is probably an indication that the tribes least amenable to Br&hmanical influence are improving in their pecuniary circumstances.
{b) In the Odyssey the €dva presented by the bridegroom are returned with a favourite daughter. Compare Dr. Leitner*s account of a Ghiljit marriage, Indian Antiquary, vol. I., p. 11; and Plantof Trinummus, III. 2, quoted by De Gubematis, Storia Comparata, p. 106 ; Str. H. L. I. 37 ; II. 33-35; Coleb. Dig. Bk. IV. T. 175, 184; Manu VIII. 227 ; IX. 47, 71, 72 ; Jolly, Ueber die rechtliche 8tellung, Ac. p. 11 n. 25. Stinginess on the part either of the son-in-law or of the bride's brother was already a reproach in the Vedic era. SeeBig Veda, I. 109, quoted 5 Muir's Sanskrit Text, 460 ; Ved&rthayatna» Bk. II. 737 ; and Comp. Coleb. Dig. Bk. V. T. 119, Comm. The refer- ence appears to be to a connexion formed by purchase. The profiise expenditure at HindA weddings thus finds a kind of warrant in tke earliest traditions of the race.
nrraoDucnoN.] woman's peopbrtt. 283
tnd on ber deatb it seems reasonable tbat the gift, in early times still retaining its original shape, slionld retam to the stock from which it proceeded, (a) At a still later point of progress the sale of women^ retained by the nncivilized tribes, comes to be looked on as an opprobrinm by those more adTanced, and especially where, as amongst the Brilhmanical community, the wife has been admitted to a share with ber husband in the performance of the most sacred household rites, (b) A concurrent elevation of feeling amongst the warrior caste brings about the Svayamvara, (c) the choice of her fisivoured suitor by the high bom maiden, or at least a state of manners and ideas akin to that of the age of chivalry in Europe, in which the beautiful pictures of female character presented by the HindA epic poetry and drama could be conceived and appreciated, {d) At this point the rules and the ceremo- nies which pointed to a ruder age, would be explained away ; and the recollection of their true origin dying out as a newer system acquired consistency, the texts would be subjected to such manipulation either in the way of change or of exegesis as we find they have in fact undergone, {e) The right of women to marriage gifts continued while the rales still retained became anomalous.
(f) It was found necessary at Athens to limit the paraphernalia which a bride might take to ber husband's house. The dowry given with her had to be restored on ber death. See Grote, Hifft. of Greece^ foL m. 140.
(i) Ipastamba, Pr. 11. Pat. I. Kan. 1, para. 1 ; Pat. V. Kan. 2, para. U ; BaudhAyana, P. 2, Adh. 1, K 2, SAtra 27 ; Coleb. Dig. Bk. IV. T. iU ; Bk. V. T. 399. Compare Max. MnUer's Hist. San. Lit., pp. 28, 205. Land in moderate quantity is sometimes settled on a daaghter for her sole and separate use at ber marriage even amongst tribes which most strictly prohibit lands leaving the family or tribe. See Panj. Cost. Law, II. 221.
(c) See Mon. WiUiams, In. Wis. 438.
(d) A Svayamvara seems to have been occasionally allowed even in the Yedic times ; eee 5 Muir's San. Texts, 459.
(e) See Bumell, op. cit Introduction, p. xiv.
284 LAW OP INHERITANCE. [boOK I.
Side by side with this soarce of women's property, how- ever, there was another which has received less attention, (a) The total severance from her own family, which in a parti- cnlar form of civilization the woman undergoes when she marries and thns enters that of her hushand, is still un- known to some Indian tribes. (5) Many traces of custom
(a) Amongst tbe Anglo-Saxons a wife did not enter her hosband's •* maegth" or family by marriage. Her own kindred remained respon- sible for producing her or making compensation in tbe event of her committing a crime. Scbmid, Die (lesetze-der Angl. Sax., cited Taswell-Langmead, Const. Hist., p. 35. Tbe dotal marriage or mabri- monium aitie conventione of tbe Romans was attended witb a similar effect as to property. Tbe bride remained a men^ber of ber father's family. See Tom. and Lem. Gains, p. 102 ss ; Smith's Die. Ant., Art. Matrimoninm, Divortinm.
(by* In Spiti, if a man wishes to diyorce his wife without ber consent he must give ber all she brougbt witb ber, and a field or two besides by way of maintenance. On tbe other band if a wife insists on leaving ber busband sbe cannot be prevented," but in this case or in case of her elopement be may retain ber jewels. Panj. Gust. Law, II. 192. As to tbe N&yars, see Buchanan's Mysore, vol n. pp. 418, 513. The polyandry formerly universal amongst this tribe has almost disap- peared under tbe British rule. In some families it has taken tbe intermediate form of a limitation to biandry, not more than two husbands being allowed. In Gocbin and Travancore tbe older institution subsists in its loosest form. A quasi-matrimonial ceremony having been celebrated by a Brfthman or KsbatriTS the woman thenceforward associates witb anyone sbe pleases. Where tbe family is one of position tbe woman does not leave her own tarwad,and ber husband has to visit her at her family residence. Amongst the Thiyens there is a fraternal partnership in the wife for- mally married to one of tbe brothers. On this one's death the other marries the widow in an undivided family and all tbe children inherit in common. A separated brother has not the same privilege or obligation. There is a class of Nambudri Br&bmans in N. Malabar who follow tbe regular law of marriage but tbe N&yar rule of in- heritance. (They are probably a race of mixed origin, or who have assumed a higher caste rank than they are entitled to, as it is virtually impossible that Br&bmans with indissoluble marriage and known paternity should adopt tbe N&yar law of succession). The manager of a N&yar tarwad tries to get his own children uar-
INTRODUCTION.] WOMAN's PROPERTY. 285
remain to show that a connexion through the mother was till recently recognized, and indeed still is in some places recog- nized, as superior or as running parallel to that through the fether, and as in some degree regulating the devolution of property, (a) The custom of patnibhdg still prevailing in Madras and in some parts of the Punjab (b) is traceable to this source. In Bengal Jtmfitav^lhana founds the law of devo- Intion on Visvarupa's statement that all the property of a woman dying childless goes to her brother, (c) The rule indeed under which, according to the Bengal law, patrimony taken by a daughter from her father, instead of passing to her husband and his family, returns to the family stock from
ried to his sister's in order to benefit by the same estate as himself. Marriages between cousins through their mothers or grandmothers as sisters are considered incestuous. (These particulars are gathered from a letter from Mr. C. Sankaram Nair to the Hon. Dr. W. W. Hunter, dated 8th Oct 1882.) In Ganara there is a quasi-permanent connection not with the husband but with a paramour ; yet though this identifies the children as the offspring of a particular man, his he- ritage goes not to them but to his sister's children by her paramour. Amongst the Bants there is a conflict between the older law, which favours the nephews and the natural tendency of fathers to enrich their own children, which now requires legislative sanction to give it full effect. Among this tribe there is a polygamy without polyandry : each wife's children and goods are regarded as specially her own ; and on her divorce or the death of her husband, go with her to the joint family dwelling of her brothers. The eldest brother manages the estate; but his heir in that capacity is the eldest son of his eldest sister, his own children, like the other offshoots of the family, being entitled only to subsistence. Buchanan's Mysore, vol. Ill, p. 16, <fcc. The conflict between paternal affection and duty to the tarwad in Malabar is referred to in Tod v. P. P. Kunhamud Hojee, I. L. R. 3 Mad. at p. 175, where, too, it is recognized that estates and acquisitions belong wholly to the tarwad or female gens, though the manager may grant leases and the mortgages called Kdnam and Otti not subject to foreclosure. See Rev. and Jud. Selections, vol. I. p. 891 ; Fifth Rep. App. 23, p. 799; Edathil ItU v. KcypasUn Ndyar, 1 M. H. C. R. 122.
(a) See Rowney, Wild Tribes of India, p. 147, as to the Koches.
(b) Supra, p. 886; Tupper, Panj. Cust. Law, vol. I. p. 72.
(c) D&yabh&ga, Ch. IV. Sec. 3, p. 13 (Stokes, H. L. B. 254).
286 LAW OF INHBEITANOB. [boOK I,
which it was severed, may be referred to this principle. So as to the effect of Asara marriages and as to snccession amongst Sftdras; so as to pritidatta the Sm. Ch. qaoting E&t- y&yana. Even in Mann, the text (ESI. 185) in favour of a father's succession is balanced by one (IX. 217) which says '^of a son dying childless the mother shall take the pro- perty/' and on a mother's death all her sons and daughters are to share her property equally (IX. 192). TajnavjJkya (II. 117) says the daughters, and failing them the issue, (a) In the Mit&ksharft (Gh. 11. Sec. 4, p. 2 ; Stokes, H. L. B. 444) a pas- sage is cited from Dh^re^vara^whichyfailing themother^assigns the son's heritage to his grandmother in preference to bis father, in order that it may not pass to his brothers of another class. This rule, rejected in the later law, may well have come down from a time when the clan connexion through the mother was thought more close than that of mere half-brothership through the same father, (b) Many instances of this are to be found in different parts of the world. In India the distinctive marks of an exclusive female gentileship are gener- ally wanting even among the ruder tribes; but the separate subsistence of the wife's property as belonging to her and her own family of birth is still recognized. In a recent case on the Kattiawar frontier the brothers of a woman who had died childless came and took possession of the whole household stuff, (c) VaradarAja, page 52, refers that part of Brihaspaii's text, (i) which says that ''the mother's
(a) At Athene a husband enjoyed only the fruit of his wife's dowry. On her death or divorce it went to her family. Her marriage gifts remained her own, but she could not dispose of them freely, being looked on as under guardianship except as to petty transactions. Schoe. Ant. of Greece, 516.
(b) Compare the case of the Lydans (Herod. 1, 173,) and the other similar cases referred to in L. Morgan's Ancient Society, p. 347 ff.
(c) Ex reloHone, J. Jardine, Esq., late Judicial Assistant in Kattiawar, and now Judicial Commissioner in Bnrmah.
(cO Coleb. Dig. Bk. V. T. 613; Vyav. May. Chap. IV. Sec. 10, p. S0;Stoke8,H. L.B. 106.
IKTBODUCnON.] WOMAN's PROPERTY- 287
Bister [is] declared equal to a mother/' to the case of
an Asora marriage attended with the conseqaesce of the soccession to the wife, not of her husband and his family, bat of her own parents and their family, (a) And in this latter case he says, '^ When the mother and father would suc- ceed, then in their default, of the three relatives through them the deceased woman's sister's son takes first. In his defaalt her brother^s son takes it. In his default the son- in-law takes if This preference of a sister's son to a bro- ther's 3on, which is not confined by other writers to the case of an Asura marriage, {b) points probably to a time when female had not yet become quite superseded by male gentile- ship. A trace of the same state of things is to be found in Nllakantha's preference of these collateral, and, according to modem ideas, but slightly connected, relatives to the hasband's sapindas as heirs to a woman's pdribhdshiha Strldhana. Amongst the Brfthmans in the Surat district the custom as stated by the caste gives the succession to a maternal heritage taken by a son first to the widow of the propositus, then to his sister, sister's son and mafcemal aunt and her son in succession. Only on failure of these it goes
(a) See Mann, IX. 197; YajS. H. 146; D4yabh&ga, Ch. IV. Sec. 2, p. 27 ; Stokes, H. L B. 250 ; Sec. 2, p. 6 ; ibid, 252.
(b) Smriti Chandrik&, Ch. IX. Sec. 3, p. 36 ; Coleb. Dig. Bk. V. T. 513 ; Dayabh&ga, Ch. lY. Sec. 3, p. 31 (Stokes, H. L. B. 257) ; Vyav. May. Ch. IV. Sec. 10, p. 80 (ibid. 106). As to the close connexion Bubsisting amongst the ancient Germans between nephew and mater- nal nncle, eee Tac. de Moribus German, c. 20. In some parts of Germany " the land always travels through a female hand. It goes to the eldest daughter ; if there be no daughter, to the sister or Bister's daughter." Baring Gould, Germany, I. 96. The succession to lands amongst the cultivating class is still traced through females. In some places a widow even transmits the farm of her first husband by her remarriage to the fomily of the second. See Baring Gould, Germ. Pres. and Past, Ch. III., and the authorities cited in the Appx. to the same work. Mr. Cust reports the existence of the custom of succession of sisters' sons in the Assam hills as well as in Travancore. Mr. Damant says it is in full force amongst the Gfiroo
288 LAW OP INUEBITANOE. [boOK I.
to the maternal grandfather, (a) Similar rules prevail amongst some of the lower castes^ instances of which are recorded, (b)
The patriarchal constitution of the family, which grew up amongst the Brahmanical section of the Indian people, was logically connected with a set of ideas, with which those, to which we have just adverted, were incongruous. Accord- ingly we find, in the development of the now prevailing system, not only that *^ women, sons, slaves, and attendants are dependent,^' (c) but also (d) that *' three persons, a wife, a slave, and a son, have no property ; whatever they acquire belongs to him under whose dominion they are." This is the patriapotestas in almost its full development; and starting from this point some writers {e) set down the woman as originally uninvested with any rights at all. Whether she had rights in the full sense of that term may indeed be doubted ; but the law of her complete absorption in the family of her marriage was only by degrees and partially adopted by the community at largo ; and does not aflford a sufiicient source for the peculiar and varied rules in her favour with which in historical times it has always been blended.
and Kh&sias, north of Assam. The succession of the chiefs is entirely through females. See Ind. Ant. Vol. VIII. p. 206; also Rowney, Wild Tribes of India, p. 190. The Kh&sya earns his wife by service to her father. A G&roo husband has to submit to a mock capture by his bride and her friends, and plays the part of reluctance and grief as well as if he belonged to the other sex. lb. As to the custom of Illatom (= affiliation of a son-in-law) in Madras, see Hanuman- tamma v. Rdma Reddi, I. L. R. 4 Mad. 272.
(a) Borrad. C. Rules, Lith. p. 401.
(b) As in Bk. G. Sheet 17 of the same Collection.
(c) N&rada, Ft. I. Ch. V. SI. 36.
id) Ibid., Pt. II. Ch. V. SI. 39; Manu VIII. 416.
(e) As Dr. Jolly, in his Essay, Ueber die rechtlicbe Stellong der frauen bei den alten Indem, p. 4, and Dr. A. Mayr, Das Indische Erbrecht, p. 152, " Die Weiber waren in altester Zeit keine Rechts- subjecte. "
INTEODUCTION.] WOMAN's PBOPEETT. 289
Amongst the polyandrous classes indeed, who are still much more numerous in India than is generally supposed,(a) it is obvious that, as the chief connecting links between Buccessive generations, craving some ideal continuity, are the females, and they the sole centres of any certain identity of blood, the patriarchal constitution of the family, and its ordinary concomitants, are practically out of the question. Such classes, though not within the operation of the stricter Hindd law, have yet obtained a place in the Hindu commu-
(fl) In Kamaun, the Rajputs, Brdhmans, and Sildras all practise polyandry, the brothers of a family all marrying one wife like the P&ndavas. The children are all attributed to the eldest brother alive. None of the jrounger brothers arc allowed to marry a sepai*ate wife. When there are in a family but one or two sons it is hard to procure a wife through fear of her becoming a widow. Bhagv&nlal Indraji Pandit, in Ind. Ant. March 1879, p. 88. The Kh&sias usually have but one wife for a group of brothers. (Rowney, Wild Tribes of Ir.d., p. 129.) Polyandry even is exceeded by the Booteah women, ii. 142. As to the Duflas, ib. 151; the Meeris, ib, 154. Amongst the Sissee Abors, a group of brothers have a group of wives in common, ib, 159. See as to the mountain tribes of the Him&Iyan frontier, Panj. Cast. Law, II. 186 ss. The reason assigned in some of these cases for the polyandrous household is deficiency of means, as in the case of a similar arrangement amongst the Spartans, recorded by Polybius, XII. 6 (fe), Ed. Didot. The rules, preserved in Manu IX. 58 ff, for regulating the intercourse with the childless wife or widow of a brother, point back to a previous institution which the gradual refinement of sensibility had thus ameliorated. The limitation of the practice to the lower castes mentioned by Manu does not occur in N&rada, who further allows this connexion even with a woman who has bad children, if she is "respectable and free from last and passion" (N&rada, Pt. II. Ch. XII. para. 80 ff). Y&jnavalkya assigns the duty to any kinsman of the deceased descended f i*om the same stock. The male offspring of this kind of union was variously regarded either as the son of the deceased husband ^n\j, or of both him and the actual father. See Coleb. Dig. Bk. IV. T. 149, Comm.; Mit&k8har&, Ch. I. Sec. 11, pp. 1, 5, note ; Stokes, H. L. B. 410, 412; Bandhdyana, Pr. II. Kan. 2, SI. 23 ; Vasishtha, Ch. XVII. 8-11, ss. ; Translation, p. 85. ; Smyiti Chandrik&, Ch. X. That the practice, not subject apparently to severe regulations, obtained in the Vedic period, see ^ig Veda, X. 40, quoted 5 Muir's Sanskrit Texts, 459. 37 H
290 LAW OF INHERITANCE. [bOOK I.
nity, and have brongtit into it notions, which, on account of their harmonizing with some natural feeling or some need of the society^ have obtained a more or less general acceptance, (a)
It is still the custom amongst some castes for the father of the bride to. present with his daughter a household outfit, which is carried in procession at the wedding. (6) In others this is becoming superseded by a gift in money, which however is still regulated by the prices of the different equipments for which it is meant as a substitute. The husband who comes into possession in this way of a sum of money, and hands it to his wife to purchase household utensils, provides her with '' Sulka'' in the second sense. The Adhyagnika or gift at the altar,and the A dhydvdha/iiilm orgift during the procession, are probably to be referred, like the * Sulka/ to a state of thin^ really anterior in its prevalence to the patriarchal system, out of which some suppose it to have grown by a gradual extension of the wife's proprietary capa- city. So also as to the Pritidatta or token of affection, which was at first a gift from the woman's own family. She would be incapable of holding this, except through a capacity which Ndrada's'text denies. But thatcapacity not having been really extinguished in practice, the gift subsequent, Anvddheyika, from her husband's relatives had a definite body of property,
(a) See Bumell's Introd. to the M&dhaviya, p. xv.; Introd. to Varadar&ja*8 Vyavab&ra Nirnaya, pp. vii, viii; Ward's Survey Acconnt, and the Madura Manual quoted by Mr. Nelson in his " View of the HindA Law, &c.," pp. 141-145.
(b) Amongst the Br&hmans of the Southern Maratha Country the provision includes a oouch with bedding or carpet, two silver or metal plates, two cups, &c. These are carried in procession to the bride- groom's house as an important if not essential part of the ceremonj. In Germany it may be observed that the contribution of the bride towards the furnishing of the home in the shape of beds, linen, &&, becomes joint property of the spouses. Clothes and ornaments remain as we might say the Stridbana of the bride, free from any right of the husband. An early instance of a simple, tronsseau is that in the Rig Veda, X. 85. See De Gubornatis, St, Comp. Bk, I. Ch. XVII.
iNTRODucrrioN.] woman's peopebty. 291
real or potential^ to which it could adhere ; and the Adhive^ danika or compensatioD for supersession, in the form of a gift to make the first wife's position, as to paraphernalia, equal to that of the second, (a) if it was ever, as probably at first it was, a mere pacificatory present, easily took the character of a legal obligation, when other sources of exclusive femalo property were familiar to the people.
It seems at least probable then that the woman's dis- tinctive ownership of property was not merely a develop- ment within the sphere of the Br&hmanical law itself, but in part a tradition from earlier times, or from an alien race, adopted as a process of amalgamation, blended the older and the newer inhabitants of India into a single people. The Hindfl literature preserves many testimonies, that whatever may have been the strictly religious view of women's infe- riority and dependence, they in fact retained a position of real influence and freedom down to the time when Maho- medan ideate began to permeate the community. Vijnanes- vara, whose literary activity is to be assigned to the eleventh century, was a stranger to these ideas. He had himself, it would seem, a tolerably high conception of female character and capacity; he looked on the union of the husband and wife as establishing an almost complete moral identity between them; and probably availed himself of a pretty widespread popular feeling, derived from the sources to which we have adverted, to propound his theory of female ownership, (b) That theory seems not to have been adopted without some misgiving or reserve by any of his numerous followers. K&ty&yana and Vy&sa are quoted
(a) Mit. Chap. II. Sec. 11, paras. 33-35 ; Stokes, H. L. B. 466.
(h) In this respect, as in his conception of Sapindaship as resting on consanguinity, and in establishing property as a matter of secular^ not of religious, cognizance, Vijn&ne6vara showed a boldness and reach of mind which it is hard for Europeans of the 19th century to appreciate. It was by these qualities however that his works became the chief authorities on the HindU Law.
292 LAW OP INHERITANCE. [ BOOK I.
by the Vi rami trod aya (a) and by the Srariti Chandriki (h) to the eff'ect that separate property bestowed upon a woman is not to exceed two thousand karshapmnas, (c) and is to exchide immoveable property. It is there explained that as the gift might be repeated annually so a single endow- ment to produce the same amount may be given once for all even in the form of immoveable property, (d) The VyavaLara Mayukha repeats these rules, (e) and the further one that what the woman earns belongs to her husband ; as also those gifts, from friends other than near relatives, which, if she could retain them herself, would afiford a means of with- drawing her gains from her husband's control. Ornaments given to her for ordinary wear become her property, but in those handed to her for use only on extraordinary occa- fiions the ownership of the nominal donor^ and of their families remains. (/) The Vivada Chintamani (j/) follows the Mitakshard in laying "no restriction on the woman's capacity to take immoveable property. The " labham " or gain which Devala assigns to the woman(//) is unrecognized or cut down by all the commentators, except Vijfianesvara, who does not himself expressly cite this authority.
A daughter, unmarried or married, may take immoveable property by gift, from her parents, according to the Diya-
(a) See below, Sec. 1, para. 13.
(6) Chap. IX. Sec. 1, paras. 6—11, 16. The passage of Vydsa is by Varadaraja (p. 34) construed as a limitation on a widow's right of inheritance.
(c) Copper coins of small value, Ytramitrodaya^ Traiw. p. 221
(d) Instances are given iu the Panj. Cust. Law, Vol. II. of the gradual recognition of small gifts of land to daughters amongst the tribes which generally restrict land-ownership to males. Compare the Smriti Chandrika,. Transl. Ch. IX. Sec. I. para. 10.
(e) Chap. IV. gcc. 10, paras. 5, 6, 7 ; Stokes. H. L. B. 99, 100. (/) 2 Str. H. L. 55, 241, 370. iSee below as to such gifta from »
hasband.
ig) pp. 259, 260.
(h) See above, and Viram. Transl. p. 226.
INTRODUCTION.] WOMAN*S PEOPBETY. 293
bh&ga, (a) which imposes no restriction on the amount, but K%ayana there quoted is understood, as we have seen, by other commentators, as confining what may be given to mar- ried women within narrow limits, {h) Even that restriction would be disregarded in the case of property acquired by the donor, (c) and all gifts by parents proceeding from natural affection are to bo respected, (d) unless they are of such a character as to be a fraud on other members of the family, (e) As to property which is free from the claims of co-owners a woman may take by gift from her father, mother, or brother, without limitation according to the modern law, which in thia respect has become as liberal as the Mitakshara would make it. (/) A devise is put practically on the same footing as a gift inter vivos, {g)
Similarly a wife may take gifts from her husband of any kind of property and to any amount, subject only to the rights which others may have in what is thus given to her. (A)
(fl) Chap. IV. Sec. 3, paras. 12, 15, 29 ; Stokes, H. L. B. 253, 254, 257. See also Coleb. Dig. Bk. Y. T. 354.
(b) So also the M&dhaviya, p. 41.
(c) Supra, page 212 ; 2 Str. H. L. 6, 9, 10 ; Muttayana CheUi v. Sivaglri Zamhiddr, 1. L. R. 3 Mad. at p. 378.
(d) Coleb. Dig. Bk. II. Chap. IV. Sec. 2, T. 49, 50 ; N&rada, Pt. II. Chap. IV. SI. 7; Vyav. May. Chap. IV. Sec. 7, para. 11 ; Stokes, H. L. B. 76; Hit. Chap. I. Sec. 6, para. 13, 16 {ibid. 396, 397).
{e) N&rada, Pt. II. Chap. IV. SI. 4 ; Vyav. May. Chap. IV. Sec 10, p. 6 i Stokes, H. L. B. 9.:) ; Viramitr. Sec. 1, para. 5, infra ; Slvarananja Perumal \. Muttu Ramalinga et al, 3 Mad. H. C. R. 75. An interdic- tion may be obtained by a sou or a brother again ^t a dealing with the heritage which would deprive him of his rights. Q. 1735, MS. ; Vtmrn. Tr. p. 74; Mib. Ch. VI. Sec. VI. p. 10.
(/) See Coleb. Dig. Bk. V. T. 482, Comm., quoting Chandesvar.
(g) See above, p. 181, 217 ss. Judoo Nath Sircar v. Bussant Coomar Roy, 19 C. W. R. 264, S. C U Beng. L. R. 286.
{h) See the passages referred to iu notes at p. 208. As to the essentials of the gift, see G. v. K., 2 Moi-l. Dig. 2ai ; jS. Pabitra Dasi et al V. Damudar Jana, 7 Beng. L R. €97 ; Kish^u Govind v. Ladlee Mokun, 2 Calc. S. D. A. R. 309. VenkatarJidla v. Thatkammal, 4 Mad. H. C. R. 460, recognizes the competence of the husband to make a gift, while exacting delivery to complete it.
fi94 LAW OP INHERITANCE. [bOOK I.
The commentators^ (a) who carefully provide against her alienation of immoveable property thus acquired^ thereby acknowledge at least with the Mitakshar^ her competence to receive it. The limitation imposed by Kdty4yana's text above quoted applies in terms to a husband's gifts as well as to others, but where property ranks as separate estate, no one now has a right on which he can challenge the owner's disposal of it. (b) Colebrooke says (c) without qualification that " land may be given by the husband to his wife in Strl- dhan^ and will be her absolute property/^ The last words must, as to Bengal at least, be qualified by the restriction set forth in the Dayabh&ga {d) against alienation of immove- able property given by a husband, but as to the wife's capa- city to take such property by gift, they represent the modem law. (e) Ornaments given by the husband merely to be worn occasionally remain his property, but otherwise they become fully hers. (/) It follows from what has been said that a member of an undivided family, residing apart, is not at liberty, by converting his gains into costly orna- ments, to deprive the other members of their share in his acquisitions ; (g) and if the wife under cover of that position appropriates what belongs to her husband, she subjects herself to punishment, {h) On the other hand the general
(a) See the Smriti Chandrikft, Chap. IX. Sec. 2, p. 10.
(b) See above, p. 209.
(c) 2 Str. H. L. 19.
(d) Chap. IV. Sec. 1, pa. 23; Stokes, H. L. B. 241. See Koonjbe- hari Dhur v. Premchand Dutt, I. L. R. 5 Calc. 684. For Bombay m the case of Kotrabaeapa v. Chanverova, 10 Bom. H. C. R. 403.
(e) See above, p. 207 ss.
(/) 2 Str. H. L. 55, 241 ; MussL Radha v. Biaheshur Dflw,6 N. W. P. R. 279. See above, p. 186. Actual gift without fraud, of ornaments to a wife, passes the property to her, but not a mere handing of them to her for use on ceremonial occasions. Kurnardm v. Hinibhm/, Bom. H. C. P. J. 1879, p. 8 ; see Smriti ChandriB, Transl. Ch. IX. Sec I. II ss.
(g) Q. 315 MS., Ahmednuggur, 13th June 1853.
Qi) Nai-ada, Pb. II. Chap. XII. SI. 92; compare Manu IX. 199.
INTRODUCTION.] WOMAN's PB0PERTT# 296*
aacredness of a promise (a) is upheld in the case of one made to a wife. The sons must fulfil it. (b) In this respect the modern treatises go beyond the text of the Mitdkshar^, though not probably beyond its intention^ as Vijnanesvara was a stickler for the literal fulfilment of the mental act in cases of gift without delivery of possession, (c)
Gifts to mothers, sisters, daughters-in-law, and to other female relatives occur not unfrequently in practice, (d) No difficulty is raised to the reception of such presents even of immoveable property, where the title of the donor is un- incumbered; but the subject is not so dealt with in the modem commentaries as to aflTord a ground for a profitable comparison with the Mitakshard. Gifts even from strangers may be accepted; though these, according to the modems, become the property of the husband when the donee is under coverture, (e)
That women may take property generally by inheritance Baa been shown in the foregoing pages of this work. (/) Baudh&yana^s quotation from the Veda, (g) though support- ed by Brihaspati, {h) is no longer allowed to disqualify them. That text, as we have seen, may be differently construed, (i )
(a) Narada,Pt. II. Chap. IV. SI. 5; Manu IX. 47; Vyav. May. Chap. IX. para. 2 ; Stokes, H. L. B. 133.
(h) See the Smriti Chandrik&, Chap. IX. Sec. 2, para. 25 ; Vtramitr, Sec. 1, para. 21, below ; Vyav. May. Chap. iV, Sec. 10, para. 4 > Stokes, H. L. B. 99.
(c) See the Mit. on the Administration of Jastice; 1 Macn. H. I#. p. 203, 217.
(d) See Chattar LaUmg et aZ v. Shewukram et al, 5 Beng. L. R. 123.
(e) Vyav. May. Ch. IV. Sec. 10, p. 7.
(/) To note {h) p. 120, add a reference to Dayabh&ga, Ch. XI. Sec. I, p. 49 (Stokes, H. L. B. 318); Vyav. May. Ch. IV. Sec. 8, p. 2 (ihid- 84).
ig) See Baudh. Pr. II. Ka. II. 27.
(h) See the Smriti Chandrik&, Ch. XI. Sec 1, p. 27 ; Vyav. May. Ch. IV. Sec. 8, p. 3 (Stokes, H. L. B. 84).
(i) Supra, p. 126 ff.
296 LAW OF INHERITANCE. [boOK I.
Manu's Text IX. 18, misquoted by the Vlramitrodaya, (a) points indeed to an essential inferiority of women as inca- pable of pronouncing expiatory formulas, (h) and Gautama (c) seems by omission to exclude even a mother from a share on a partition, but Kdtj^jana's Srauta Siltra, the ouly one on the "White Yaj{irveda, gives to women the right to sacrifice as allowed by the Vedas. (d) The Dayabhaga (e) and the Smriti Chandrikd (/) admit the wife's succession on the special ground of her association with her husband ia sacrificial rites, (g) KuUftka Bhatta, commenting on the text of Manu XI., 187, which assigns succession to the nearest sapindas, says that a wife must be considered a sapinda, because she assists her husband in the performance of religious duties. (A) The Vlramitrodaya (i) adopts the less generous construction of the Smriti Chandrikd, (j) and the Daya- bhaga (fc) that a woman's capacity to inherit can arise only under special texts in her favour ; but the Mitakshara (/) and the Vyavahara Mayukha do not recognize any general disability. The latter indeed, (7?i) as we have seen, treats a sister with special favour, (n)
(a) Viram. Tr. p. 244.
(b) Manu XL 194, 252 ff.
(c) Adhy&ya 28, 1 ff.
(d) tSee Men. Williams, In. Wis. 159.
(e) Ch. XI. Sec. 1, p. 47 (Stokes, H. L. B. 316).
(/) Ch. XI. Sec. 1, p. 10; Max MuUer, Hist. San. Lit. 28, 205-
(g) Smriti Chand. Ch. XL Sec. 1, p. 12 ; Mit. Ch. 11. Sec. 1, p- 5 (Stokes, H. L. B. 428).
(Ji) Coleb. Dig. Bk. V. T. 397, Comm. ad fin.
(i) See Transl. p. 244.
{j) Ch. IV. p. 5.
(70 Ch. XL Sec. 6, p. 11 ; Stokes, H. L. B. 346.
(I) Ch. II. Sec. 1, paras. 14, 22-24 (Stokes, H. L. B. 489, 490).
(m) Ch. IV. Sec. 8, para. 19 ; Stokes, H. L. B. 89; Supra, p. 181.
(n) The daughters take absolutely and so therefore do the sisters. Vinayak Anundrao v. Lakshmibdi, 1 Bom. H. C. R. 124.
INTRODUCTION.] WOMAN's PROPERTY^ 297
The nature of the estate, which a woman takes in the pro- perty in any way acquired by her, seems to have been regarded hj Vijo^oesvara as standing on the same footing as the estate of a male. To this he mentions only one exception, *^ a hasband is not liable tt) make good the property of his wife taken by him, in a femine, for the performance of an (indis- pensable religious) duty, or during illness, or while under restraint/' {«) The Vyavahftra MayAkha [b) and the Vira- mitrodaya (c) repeat this text. The Smriti Chandrikft (d) quotes one to the same effect from Devala. Devdnda Bhatta goes so far even as to say : — '' In a husband's pro- perty, the wife by reason of her marriage possesses cdways ownership, though not of an independent character, but the husband does not possess even such ownership in his wife^s property/' (e) The Hindu notion of ownership seems to bo not incompatible, either with this right springing up on particular occasions, or with the woman's general depen- dence. (J ) No limitation is prescribed by VijnS»nesvara to the
(«) Mit Ch. II. Sec. 11, p. 81; Stokes, H. L. B. 465. In case of misconduct on the part of the wife of a flagrant kind the husband may take possession of her Stridhana. ^iramit. TransL p. 226.
(b) Ch. IV. Sec. 10, p. 10 ; Hid, 101.
(c) Sec. 1, p. 20,
{d) Ch. IX. Sec. 2, paras. 14, 15. In para. 26, Dev&nda insists on the mother's exclnsive ownership of her Strtdhana as against any claim to partition advanced by her sons. Bot this must be understood by reference to his conception of Strtdhana, and, as to property formerly her husband's, by reference to his notion that the widow's share is not heritage and not partible property. See the Smf iti Chand. Ch. lY. p. U ; Ch. VII. p. 22.
(e) Coleb. Dig. Bk. V. T. 415, Comm. ; " A man, his wife, and his son are co-proprietors of the estate." Reply of the o&stri at Ahmed- nuggur, 30th March 1878, MS. No. 39. According to the law of Western India a woman has full ownership of herpallu or Stridhana, Reg. V. Natha Kalyan et ak 8 Bom. H. C. R. 11, Cr. Ca. The Roman law, like the English Equity, strove to guard a woman's property against dissipation by many provisions. See Goudsm. Pand. § 26, p. 55,
(/) Mit. Chap. II. Sec 1, para. 25 j Stokes, H. L. B, 435, and the cases cited above. 88u
298 LAW OF INHERITANCE. [bOOK I.
wife's or widow's use of the sbare taken by her in a parti* tion. (a) It is shown in the Smriti Chandrik& (t) that this share falls within Vijfianesvara's conception of inheritance, and thus becomes property in the fullest sense. An unmar- ried daughter, who on such an occasion *' shares the inherit- ance/' (c) is similarly unfettered as to the disposal of it by any rule in the Mitakshard. (d) It accepts the doctrine of the general dependence of women, but without working it out to any practical result. It omits the prohibitions referred to by the modern commentators, against the wife's expending even her separate property without the assent of her husband, {e) and in making no special provi- sion as to Saudayikam it may probably have intended to leave
(a) Mit. Chap. I. Sec. 2, para. 8 ; Sec. 6, para. 2 ; Sec. 7, paras. 1, U (Stokes, H. L. B. 379, 394, 397, 401); D&yabh&ga, Ch. III. Sec. 2, para. 37 note, (ibid. 233).
{b) Chap. IV. para. 10. Corop. Coleb.Dig. Bk.V.T.420,5l5,Comm.
(c) Compare Coleb. Dig. Bk. V. T. 399, Coram, sub fin. ; Mit. Ch. II. Sec. 1, p. 26, U^^'t^. -^35).
{d) Mit. Ch. I. Sec. 7, para. 14; Stokes, H. L. B. 401. See above, p. 106, note (g).
(e) j^e^ the Vlramitrodaya, Sec. 1, paras. 14, 15, below; Vyav. May. Chap. IV. Sec. 10, para. 8; Stokes, H. L. B. 100; D&yabh&ga, Chap. IV. Sec. 1, para. 23 (ibid. 241) ; Smrit. Ch. Chap. IX. Sec. 2, para. 12. Under the Teutonic laws the property of a girl remained her own after her marriage subject to the guardianship {mundium) of her husband and his use of the fruits during coverture. Of acquisitions made during the coverture the wife was entitled to an aliquot part fixed variously by different laws. The Saxon law gave her a moiety. But though her ownership subsisted her power of disposal was during coverture made subject to the assent of her husband. Lab. op. cil- 400. Under the English common law the wife's real estate remained hers, notwithstanding her marriage, subject to her husband's seisin in right of the wife and consequent assignment of the profits. On her death it belonged to her heirs subject only to the husband's tenancy for life by courtesy. But she could not dispose of the property without his assent (which is still required under the St. 3 & 4 Wm. IV. Cap. 75) except in the case of property vested in trustees for the wife's separate use without restraint on alienation. See Bl. by Ki Bk. I. C. 1.5;Bk II. C. 8.
INTRODUCTION.] WOMAN's PROPERTY. 299
the foil ownership constituted by its texts to their natural operation on the whole of a woman's estate, (a)
This liberality was quite in accord with Vijnanesvara's general tendency to carry principles out to their logical consequences without regard to the exceptions and contra- dictions established by actual practice. It may be doubted whether the equality of a woman with a man as an heir and owner of patrimony was ever generally accepted as a cus- tomary law. The ancient Smritis did not contemplate it, and caste rules, so far as they have been investigated, are almost uniformly against it. This advance in the position of women moreover seems never to have quite commended itself to those even who are in a general way followers of the Mitakshard. The Smriti Chandrika limits the woman^s right of disposition to Saud&yika, defined as wealth received from her own or her husband's family, and excluding im- moveable property given by her husband, (b) The "patni" wife's dependent ownership over her separated husband's property becomes, on his death, according to this authority, independent, yet without power to give, mortgage, or sell the estate, except for religious or charitable purposes, (c) The Vlramitrodaya (c?) gives fall power of disposition over Saad4yika only. So too does the Vyavah^ra MayAkha, (e)
(a) See above p. 145, 268 ; Govindji Khimji v. Lakshmidas Naihubhdi, I. L. R. 4 Bom. 318. In a note to the case of Doe dem KKllammal V. Kuppu PiUai, 1 Mad. H. C. B. at p. 90, the principal passages are collected, which bear on a woman's power to deal with her separate property. In Brijindar et al. v. Rani Janki Koer, L. R. 5 I. A. 1, a grant to a widow and her heirs of her husband's confiscated estate was construed in favour of her daughter as against her husband's heirs, a grandson through a daughter by another wife and distant collaterals. The restrictive construction of the Mit&kshar&'s rule, Ch. 11. Sec. XI. paras. 1 fiP. is denied as to grants made to a widow.
ih) Sm. Ch. Chap. IX. Sec. 2, paras. 6, 11.
(c) Chap. XI. Sec. ], paras. 19, 28, 29.
(d) Sec. 1, paras. 14, 15, below.
(e) Chap. IV. Sec. 10, para. 8 (Stokes, H,L. B. 100).
300 LAW OF INHEBITAITOT. [bOOK h
and as to property taken by the widow on her husband'f death, it limits her strictly to a life enjoyment subject only to an exception in faror of religions gifts, (a) The VivadaChinti- mani is to the same eflfectr (b) Jtmutay&hana, [c) while denying the Wiley's ownership of gifts from strangers, (d) says that over all property, really bers, her power of disposition
(a) Ibid. para. 4 (Stokes, H. L. B. 99). In the case of Chooneena 7, Juesoo Mull Deveedass, 1 Borr. R. 60rit was decided oa the Vyav. May that a widow could not devise property inherited from her hus- band to her family priest so ae to deprive the next heir, her nephew** widow. In Jugjeevun Nuihoqjee et a} v. Deoaunkw Kaseeramt I Borr. R. 436, on the ether hand, a widow was allowed to bequeath by way of Kriahnarpa'na the property inherited from her husband, except the family house and the sum requisite for her obeeqmes, to the excIasioD of her husband's cousin. The decision rested on the sacred character of such a gift ; as in the Vyavasthft in Dhooluhh Bhaee et al v. Jeevee €t al, I Borr. R. 76rthe 6&stri says, (p, 78) " Groolal Bai was not autho- rized to assign- to the children of her brethren the house of her husband Pitftmber (which after his demise had descended to her) without the sanction of the heirs." In Poonjeeahhaee ei al v. Pran. koonvmr, 1 Borr, 194, it was ruled fcbat a woman who had a son could not in discharge of her deceased husband's debts alienate property* which she had inherited from her father, without the assent of the son, after he had attained 16 years of age. This is referred to the passages from Brihaspati and E^ty&yanar quoted in the Vyavahara May^kha, to show that a woman is generally unfit to enjoy fixed pro- perty, and thftt a widow cannot dispose of it except for special pur- poses. Ber son enjoying according to the Mayiikha an unobstructed Tight of inheritance (Ch. IV. Sec. lO", p. 26; Stokes, H. I*. B. 105), was probably regarded by the l^stris as haying a foint ownership in the property^ which thus became inalienable without his assent. **A son," Bayathe Pandit at 2 Mori. Dig. 243, ** inherits the estate of his mo- ther in the same manner as that of his father.*' See p. 152. The Smriti ChandrikS Ch. Vlll. para. 11 ; Ch. IX. Sec. II. para. 26; Sec. III. para. 4, denies the unobstructed ownership of a son in his mother's property. See also the Mit. Ch. I. Sec. VI. para< 2.
{b) p. 262, 263. See B. Gunput Sing v. Chinga Pershadr 2 Agra R. 230.
(c) Dfiyabh&ga, Ch. IV. Sec- 1, paras. 20, 23 ; Stokes, H. L. B. 240, 241.
(d) Coleb, Dig. Bk, V..T. 420, Comm, II,
INTEODUCTION.] WOMAN's PBOPKRTT. 301
is unfettered, saye in the case of her earniogs and of im- moyeables bestowed by the husband, (a) These she is only to enjoy by way of use ; and similarly when she takes his estate on his death, which, according to the Dd*yabh&ga, she does, whether he was separated or nnseparated from his brethren, (6) she *'must only enjoy her husband's estate after his demise. She is not entitled to make a gift, sale, or mortgage of it,'* except in the fulfilment of a pious duty, nnder the pressure of necessity, or with the sanction of the paternal uncles and other near relatives of her deceased basbaud. (c) JagannlLtha, being forced to admit that the widow
(a) Coleb. Dig. Bk. V. T. 470, Coram.; 420 Coram. As to a gift for maintenance by a son, see Musst, Doorga Koonwar v. Musst. Tejoo KoonvDoT et al, 5 C. W. R., 53 Mis. R. ; and the D&yabh&ga, Ch. IV. Sec. 1. p. 18 (Stokes, H. L. B. 240).
(b) Op. cii.Ch. XI. Sec. 1, paras. 6,46 (Stokes, H. L. B. 305, 316). See Keerut Singh v. Koolahul Sing et al, 2 M. I. A. 331; Ghirdharee Sing v. Kooldhul Sing et al, 2 ibid. 344 ; Rao Kartin Sing v. Nawab Mahomed FyzAUi Khan et al, 14 ibid. 187; The CollecUrr of Maaulipatam v. C. Vencata Narrain Appah, 8 ibid. 500 ; Qobind Monee Dosaee v. Sham LaU Bysack et al, C. W. R., Sp. No., p. 165 j East, C. J., in Cosdnaut Bf/tack et al v. Hurroosoondry Dossee et al, 2 Mori. Dig. at p. 215.
(c) Op. eit. Ch. XI. Sec. 1, paras. 56, 62, 64 (Stokes, H. L. B. 320-322) ; Deo dem Ramanund Mookopadhia v. Ramkiasen Butt, 2 Mori. Dig. 115. For the case of an estate taken jointly nnder this law by two widows. Bee Gobind Chunder et al v. Dulme&r Khan et al, 23 0. W. R. 125 ; Sreemuttee Muttee Berjessory Dossee v. Ramconny Duit et al, 2 Mori. Dig, 80; and compare p. 103 of this work. A wife having a joint interest with her hnsband may after his death sell her own share, Madava^ raya v. TiHha Sdmi, I. L. R. 1 Mad. 307. " In respect of gifts by a husband to his wife she takes immoveables only for her life and has no power of alienation, while her dominium over moveable property is absolute," per Jackson, J., in Koonjbehari Bhur v. Premchund Duit, I, L. R. 5 Calc. at p. 686. The rule was applied to a beqaest by a will which imposed restrictions on a widow's absolute dealing with move- ables, but none as to the immoveable property. Comp. Brij Indra V. Rani Janki Kooer, L. R. 5 I. A. 1 ; supra, p. 101. If a widow turns fands given to her by her husband into land she may dispose of such land as of the money by gift or devise, Venkata Rama Rao v. Venkata ^a Rao, I. L. R. 2 Mad. 333. A gift by a widow to her daughter'*
302 LAW OF INHEEITANCB. [bOOK I.
has independent power over ddya as her husband's gift or as heritage, (a) says in one place that, as to such property, if immoveable^ "her enjoyment only of it is authorized, " (6)— a rule which applies to moveables also, (c) He tliinks however that her alienation of the property, though blame- able, may be valid, {d) yet he quotes Ndrada (e) against any
son was held valid as againsD the heirs of her husband's cousin whose share before the husband's decease had been sold in execution, Gokvl Singh et al v. Bhola Singh, Agra S. R. for 1860, p. 222.
(a) In the case at 2 Str. H. L. 21, ejectment seems to have been maintained by a woman against her husband for a house which he had given to her on his second marriage. So also in the case CXXIX. of East's notes, G. v. K., 2 Mori. Dig. 234. A suit for jewels was main- tained, Wtdubhram v. BIjlee, 2 Borr. R. 481. See Coleb. Dig. Bk. V. T. 481, Coram. Coleb. on Oblig. Bk. II. Ch. III. recognizes this right. The answer at 2 Mori. Dig. 68 {Jushadah Baur v. Juggemaui Tagore), denies to a mother jmy power to dispose by will of the personalty inherited from her son, which she might have ex- pended. It escheats to the crown. As to realty, see ibidem; and pp. 100 {Gopeymohun Thakoor v. Sebun Cower et ol); 131 {Doe dem. Sibnauth Roy v. Bimsook Buzzary). At p. 155 (Doedfm. Gunganarain Bonner jee v. Btdram BonnerjeeJ , the opinion of the Pan- dits, given by Macnaghten, is that in Bengal a widow's estate being only usufructuary and untransferable, her sale of the property is in- valid even as to her own interest. This principle might operate where something had been allotted merely for maintenance, as a right to future maintenance cannot be assigned, Ramabai v. Ganesh Dhonddeo, Bom. H. C. P. J. F. for 1876, p, 188. A widow and mother's right to maintenance out of her deceased husband's estate inherited by her son is a purely personal one and cannot be transferred or sold in execution. Bhyrub Chunder v. Nubo Chunder Gooho, 5 C. W. R. HI. unless perhaps where it has been made a specific charge on some part of the estate. Gangdbdi v. Krlshndji Ddddji, Bom. H. C. P. J. 1879, p. 2.
Compare the case of dower under the English law which cannot be aliened to a stranger, only released to the tenant of the land so as to extinguish it. Colston v. Carre, I Rolle, Abridgm. 30, Langdell, Con- tracts, 419. But as to a widow's estate properly so called, see suprot p. 298, and the further cases cited below.
(5) Coleb. Dig. Bk. V. T. 616, Coram.
(c) Ibid., T. 402, Coram.
(d) Ibid., T. 399, Coram., T. 420 Coram. ; as to this see abore, p. 212. {e) Ibid., T. 476.
INTRODUCTION.] WOMAn's PBOPBRTr. 303
such alienation, and says that all the authorities concur in forbidding it as to property devolved on a widow by the death of her husband, (a) Property acquired by inherit- ance by a woman before her marriage he regards as at her independent disposal ; (6) if acquired during coverture, it is subject to her husband's control like her other acquisi- tions, 80 long as the husband lives, (c) To a daughter he assigns full power over Stridhana which devolved on her from her mother, (d)
The share taken by a mother in a partition is according to the Smriti Chandrika (e) only a means of subsistence. That given to a sister is only a marriage portion. (/) The Vlramitroday a insists (g) that in a partition by brothers, daughters are entitled to shares, not merely to a provision for marriage. The Vyavah&ra MayAkha,(fc) in providing for the mother and the sisters, says nothing of the nature of the estate they take in the property thus acquired by them. Nllakantha does not adopt Vijnanesvara's definition of heritage, (i) and it seems that he would, on a widow's death, assign the share allotted to her in a partitition to her sons, (j) but the
(a) Ibid., T. 402, Comm., 8uhfi7i. See Colebrooke, cited 2 Mori. Dig. p. 212 {Cosdnttut By sack et ol v. Hurroosoondry Dossee et al), (h) See 2 Macn. H. L. 127.
(c) Coleb. Dig. T. 470, Comm.
(d) Ibid., T. 516, Comm. Several cases under the Bengal law will be found in 2 Macn. H. L. Cb. VIII. Property inherited by a daughter from her father is not Stridhana in Bengal. Chotay Lai v. Chunnoo Ld, L. R. 6 I. A. 15.
(e) Ch. IV. p. 9. The share which a mother takes as representa- tive of a deceased son in a partition under the law of Bengal is not there, it seems, regarded as Stridhana. See per Kennedy, J., in Jagmohan Haldar v. Sarodainoyee Dossee, I. L. R. 3 Cal. 149. The pandit's opinion was different. See below.
(/) Ch. IV. p. 16, 17. 18.
(3) Transl. p. 85.
(M Ch. IV. Sec. 4, p. 15, 18, 40 (Stokes, H. L. B. 51, 62, 57).
W Vyav. May. Chap. IV. Sec. 2, para. 1; Stokes, H. L. B- 46.
01 Ibid. Sec. 10, p. 26 ; Stokes, H. L. B. 105.
304 LAW OF INHERITANCB. [bOOK I.
same remark might on the same ground be made as to the succession to a share given to a sister. It is doubtful there- fore whether any abiding interest of the family of the former co-sharers in such property would still subsist or not. Jagann4tha (a) says that such a share may be aliened by its recipient, and he applies the same rule to property inherit- ed, (b) but his discussion of these questions shows that conflicting opinions are maintained by the principal modem commentators, (c)
The views of English scholars and lawyers on these points have been no less various. Prof. H. H. Wilson, in Vol. V. of his Works, at p. 29, says : — " It is absurd to say that a woman was not intended to be a free agent, because the Qld Hind& legislators have indulged in general declara- tions of her unfitness for that character. Manuy it is true, says of women, ' Their fathers protect them in childhood, their husbands protect them in youth, their sons protect them in age. A woman is never fit for independence'; (d) but what does this prove in respect to their civil rights ? N&rada goes further, and asserts that ^ after a husband's decease the nearest kinsman shonld control a widow, who has no sons, in expenditure and con- duct', (e) But as we have observed, this is neither the law nor the practice of the present day. Besides it does not apply to the case of partition, as there the widow has sons, and they surely abandon a right to control property which they themselves have given. To sanction any other mode of procedure would only tend to perpetuate the degraded condition of the female sex in India.*'
(a) Coleb. Dig. Bk. V. Chap. II. T. 88, Comm.
ib) Ibid. 399, Comm., and compare T. 470, and T. 483, Comm.
(c) The Pandits of the Supreme Court of Bengal in 2 Mori. Dig. at p. 217, said that, even recognizing the restrictions on a widow's estate taken by mere succession, yet what she received on a partition was to be regarded as Stridhana subject to her absolute disposal. See also ibid. 239, where the restrictions imposed seem to be only moral ones.
(d) XI. 8.
(e) Quoted in the D&yabh6ga, p. 269.
LVTBODUCTION.] WOMAN's PEOPERTY. 305
And again, at page 20 : — ^' The old lawyers have said, Met a widow enjoy a husband's wealth; afterwards let the heirs take it^; what obligation does this involve that she
must leave it? Now as to the gift, the same authorities,
from whom there is no appeal, define what things are alienable as gifts, and what are not. Amongst the things not alienable no mention is made of a widow's inheritance. The whole estate of a man, if he have issue living, or if it be ancestral property, he cannot give away without the assent of the parties interested, and this may indeed be thought to apply to the immoveable property inherited by a widow, but it is the only law that can be so applied : there being, therefore, no law against the validity of her donation, it follows that she has absolute power over the property, (a) at least such was the case till a new race of law-givers, with Jimfttavahana at their head, chose to alter it ; but they only tampered with the law of inheritance, and the law respecting legal alienation being untouched remains to bear testimony against their interpretation of a different branch of the law."
On the widow's rights in property, to which she has suc- ceeded on her husband's death, the same learned scholar says (page 16): — "There are but two ancient texts which bear positively on the widow's power over the property which she inherits as her husband's sole heir. One is attributed to Kfitjayana, and states ^Let the childless woman preserving (inviolate) the couch of her lord, and obedient to her spiritual guide, enjoy, resigned, her husband's wealth until her death. Afterwards let the heirs take it.' (h) The other is from the
(«) In Doe V. Oan^at, Perry, 0. Ca. at pp. 135, W6, the Sdstri of the Sadder Court expressed an opinion that the widow of a separated Hindii might make a gift of the property she had inherited from her husband, except for improper purposes. This was followed by Sir E. Perry, but for an additional and inapplicable reason, viz. that the grandson of the deceased husband's daughter was pointed out by English law and natural reason as a successor to the property prefer- able to the nephew of the deceased, one of the line of heirs expressly named by the Hindu authorities.
(*) Viramitra. Trans, p. 136, 225 ; Vi v&da Chint. p. 261 ; D&yakrama Sangraha, Ch. I. Sec. II. para. 3 ; Ch. II. Sec. II. paras. 11, 12. S9h
306 LAW OP INHEBITANCB. [bOOK I.
Mahftbhfirata, which as law, by-the-bye, is no authority at all. 'Enjoyment is the fruit which women derive from the heritage of their lords, — on no account should they make away with the estate of their lords/ (a) Such are the ancient injunctions ; which can scarcely be interpreted to mean that if a widow gives away or sells her estate, such gift or sale is invalid. Even the later writers who entertained less reverence for the female character than the ancient sages, have stopped short of such declaration, and Jimfttavahana is content to say that ' a widow shall only enjoy the estate ; she ought not to give it away, or mortgage or sell it/ (b) He allows her also, if unable to subsist otherwise, to* mortgage or even to sell it, and to make presents to her husband's re- latives and gifts or other alienations for the spiritual benefit of the deceased. It is not till we come to the third genera- tion of lawyers, the commentators on the commentators, that the restriction is positive, and Sri Krishna Tark^ankara, expounding JlmAtavahana's text, declares ' a widow shall use her husband's heritage for the support of life; and make donations, and give alms in a moderate degree for the benefit of her husband, but not dispose of it at her pleasure like her own peculiar property.* The utmost that can be inferred from all this is, that originally the duty of the widow was only pointed out to her, and she was left, in law as she was in reason, a free agent, to do what she pleased with that which was her own; but that in later times attempts of an indefinite nature have been made to limit her power.'*
Returning to the same subject, a few pages later, he says (page 24) : — "The spirit and the text of the original law, in our estimation, recognise the widow's absolute right over pro-
(a) Apahri, Take off or away : it is translated in the Digest and elsewhere, " waste," which perhaps scarcely renders its due import. [According to the D&yakrama Sangraha, the passage is taken from the D&nadharma of the Anas&sanaparva (?) ]
{b) See D&yabhftga, p. 265.
INTBODUCnON.] WOMAN's PROPERTY. 307
perty inherited from a husband in default of male issue, (a) In Bengal the authorities that are universally received have altered this law and restrict a widow to the usufruct of her husband's property. They have not, however, provided for its security, nor for its recovery if aliened, and by such neglect have virtually left the law as they found it, or the power, if not the right, of alienation with the widow : it is open to the Court, therefore, to make what regulations on this subject they please, as far as their jurisdiction extends, and as far as they are authorised by the Charter ; and the regnlation most conformable to reason, to analogy, and spirit of the Hindu Code, would be to give the widow abso- lute power over personal property, and restrict her from the alienation of the estate, except with the concurrence of her husband's heirs.''
Again at page 26, he says : — '^ In the case of the widow's sole inheritance, we have granted that the Bengal lawyers limit her in all respects to a life-interest, whilst the Mithila writers maintain her absolute right in moveables, and the old law authorities oppose nothing to her absolute right in every kind of property. In the case of property, however, acquired by partition, (b) the arguments in favour of absolute right are infinitely stronger, inasmuch as the Bengal authorities lean to the same view of the subject. JimAta- vahana starts no objection to such power, his remark being confined entirely to the case of sole inheritance, and the Viv^da Bhang&rnava concludes a long and satisfactory discussion of the question by the corollary, ' Therefore a wife's sale or donation of her own share is valid.' "
(a) Mit&kh. Ad. Y&jn. II. 136; Viv&da Chint&mani, p. 151; Vtramitrod. page 193 a; Vyavah&ra Mayiikha, Ch. IV. Sec. 8, p. 2 a (Stokes, H. L. B. 84).
(b) ** These laws (of Inheritance and Partition), as is observed by Sir Thos. Strange, are so intimately connected that they may almost be said to be blended together." P. Co. in Katamma Natchiar v. Raja of Sivagv^a^ 9 M. I. A. 639, on which their Lordships rest the widow's inheritance to property separately acquired by her husband, as such property would be retained by him in a partition.
308 LAW OF INHERITANCE. [bOOK I.
With special reference to the share taken by the widow in a partition, (a) he remarks (page 27) : — "It is asserted, indeed, that a husband's heirs succeed to such property in preference to a woman's own heirs, and therefore her enjoyment of it is only for life : but the postulate is supported only by analogy, not by any positive law, and therefore the inference is by no means proved : besides even if admitted, preference of succession does not imply restric- tion of right in possession : our law of primogeniture does not preclude, under ordinary circumstances, the father's right to sell, give, or bequeath his property as he pleases; and why should any order of succession exercise such influence here, when not specially provided for ? ' Heritage and partition' are included by the text of the Mitakshara, which is good law in every part of India, even in Bengal amongst the constituents of ' woman's property,' and a woman is acknow- ledged by all to be mistress of her own wealth. It is argued that lands and houses given by a husband to his wife must not be aliened by her after his death: therefore, a share of land and houses given by his sons on partition of his wealth, must not be made away with by their mother ; but this is surely a different case. A husband, in undue fond- ness, might bestow upon a wife the heritage of his sons, and they would be deprived of that patrimony in which they have a joint interest with the father : it is not unwise, there- fore, to secure to them the reversion of such effects."
Colebrooke's opinions on this subject appear to hare varied to some extent at different times. At 2 Str. H. L. 19, he says: — "Land may be given by the husband to his wife in Stridhan and will be her absolute property." The same doctrine as to property inherited is supported by a treatise bearing the name of Raghunandaua, which Prof. Wilson seems to have thought genuine, bub which Cole- brooke himself pronounces " more than doubtful,'' as oppos- ed to the whole current of authorities, in his note to TAp'
(a) See Viramit. Transl. p. 147; Mit. Oh. I. Sec. YI. para. 2.
iNTBODaoTiON.] woman's propertt. 309
"bhaga, Chap. IV. Sec. 1, para. 23 (Stokes, H. L. B. 241). At 2 Str. H. L. 402, he agrees with the S&strl that a woman may give away her own property, except lands taken by gift or inheritance from her husband, (a) " which she cannot dispose of without consent of the next heir.'' (6) At page 407, he seems in a Broach case, to intimate that what comes to a woman from her husband is not eren Strtdhana. He mnst here have had the Bengal law in mind, as the Mitdk- shara, Chap. I. Sec. 1, para. 20 (Stokes, H. L. B. 373), uses the case of a gift by a husband to his wife, as an illustration of the fact that full property may arise, otherwise than by birth. As Mr. Sutherland (ibid, 430) points out, the Mit&kshara is silent on the woman^s power to alien her peculiar property,(c) and she may, on her husband^s death dispose as she pleases of his affectionate gift with the exception of immoveables. As to these (ibid. p. 21), the Benares and Mithila authorities, he says, impose a general restriction upon the woman's alien- ation of the property, (d) At pp. 108, 310, Colebrooke says that a widow succeeding is restricted from aliening the immoveables, and in this Ellis concurs on the ground that " No woman under any circumstances is absolutely independ- ent "; (e) but as to that the case at p. 241 shows that
(a) So in ITaribhat v. Damodharbhat, L L. R. 3 Bom. 171, as to a will by a daughter who having inherited from her father took, it was said, an absolate estate. But in Bharmanagavda v. Bh^rmapimgavdat H. C. P. J. for 1879, p. 557, Pinhey and F. D. Melvill, JJ., ruled that a widow of a collateral inheriting in that right cannot dispose of the property thus inherited by will. A widow's will was held inopera- tive against her step-daughter's right as heir to her father, O. Goorova Buiten v. C, Narrainsawmy Butten, 8 M. H. C R. 13. The testamen- tary power is as to Strtdhana commensurate with the right of disposal during life. Venkata Rama's case, I. L. H. 2 Mad. 333.
(b) So 1 Macn. H. L. 40.
(c) Doe dem. Kullamal v. Kupper Fillai, 1 Mad. H. C R. 88.
(d) See also 2 Macn. H. L. 35.
(e) So per Grant, J. See Oomulmoney Dossee v. Ramanath BysacJe, Fult. R. 200, and as to the higher castes, Steele, L. C 177.
810 LAW OP INHERITANCE. [bOOK I.
Colebrooke thought a widow could dispose as she pleased of her Stridhana, consisting of jewels, (a)
As to the share taken by a woman on a partition, Cole- brooke appears to have distinctly recognized her as a subject of *' Diya^' or inheritance in the fullest sense, {b) At 2 Str. H. L. 882, he says that, according to the Mit&kshar&, such a share is an absolute assignment heritable therefore by the widow's daughters, (c) And this is confirmed by the rule which makes the wife's share in a partition her separate property even in her husband's life, and as such heritable by her daughters in preference to sons, (d) In the case at p. 404, there is an apparent misreading of Colebrooke's note. It should be, " The share allotted as a provision to the widow does not pass to the heirs of her peculiar property, but to her husband's heirs. This point may, however, involve some difficulty according to the opinion of those who hold that it is not a mere allotment for maintenance but parti-
(a) See the Viv&da Chint&mani, p. 260. The presumption is thafc ornaments given for ordinary wear are meant to be Stridhaoa, Musstt Badhay.Bisheshur Dass, 6 N. W. P. R. 279. See above, pp. M and 186. Family jewels, it has been held in Bengal, are not trans- ferable by a widow as her own property, Bhagwanee Koonvmr v* Farbutty Koonvmr, 2 0. W. R. 13 Mis. R., but see also the Vyavasth^ Darpana, p. 684. Vishnu, Ch. XVII. para. 22, seems to exempt a woman's jewels from partition only during her husband's life, but this cannot be regarded as the accepted law, and is indeed, as we have seen, opposed to other Smritis. See Gautama, Ka. XIV. para. 9> below; Coleb. Dig. Bk. V. T. 473. Macnaghten says (1 H. L. 40) "that the HindA law recognizes the absolute dominion of a married woman over her separate and peculiar property except land given to her by her husband," but he adds rather inconsistently, " He (the husband) has nevertheless power to use the woman's peculium and consume it in case of distress ; and she is subject to his control even in regard to her separate and peculiar property."
{h) Mit. Ch. I. Sec. I. p. 2, 8, 12 (Stokes, H. L. B. 364, 366, 370); Ch. II. Sec. I. p. 2, 31, 39 {ibid. 427, 436, 439); Sec. 2, p. 1, 2 (iW<i. 440).
(c) Ibid. Ch. I. Sec. 3, p. 9 ; Stokes, H. L. B. 383.
(d) Mit. Ch. I. Sec. VI. p. 2, 3 ; Stokes, H. L. B. 394.
raTBODUCTION.] WOMAN's PROPERTY. 311
cipation as heir/' This makes it agree with the opinion at p. 382. In the same case Sutherland thinks^ but with diflBdence, that the share allotted to a stepmother reverts on her death to the partitioning sons. In Bhugwandeen Doohey v. Myna Baee, (a) the Judicial Committee seem to have inclined to the view that, except in Lower Bengal, the widow^s property in her share becomes absolute, but the point was not one requiring decision in that case. That a fiom of money given to a widow in lieu of maintenance is at her own absolute disposal was ruled in the Madras case, cited below, p. 315, note (a). Under the Bengal law. Sir W. Jones says, (h) "The moveable property is at the widow^s disposal, the immoveable descends to the heirs'^; but Colebrooke says, "the doctrine of the Bengal school controls the widow even in the disposal of personal property/' (c)
This being the state of the authorities, it must probably be admitted, notwithstanding the view of Prof. Wilson, that the more recent writers have prevailed against Vijiidnesvara, at least as to a woman's dealings with immoveable property taken by inheritance or by gift from her husband, [d) In a Bengal case, 2 Macn. H. L. 214, the Sfetri says that in the precept "'Let the wife enjoy with moderation the property, ontil her death,' the word ' wife * is employed with a gene- ral import,^' including all cases of female inheritance. The restriction does not apply, he says, to land given to a daughter by her father, {e) In the case at Bk I. Ch. II. Sec. 9, Q. 7, the Sdstri denies to a mother inheriting from her son
(a) 11 M.I. A. at p. 514. (h) 2 Mori. Dig. 243.
(c) Coasinaut By sack et alv. Hwrroosoondry Dossee et al, 2, Mori. Dig. 205, 219.
(d) The passage of N&rada, Pt. I. Ch. III. SI. 30, prohibiting the gift by a widow of land given to her by her linsband (D&yabh&ga, Ch. ly. Sec. 1, p. 23; Stokes, H. L. B. 241) seems to qualify the special nile in paras. 39, 40, enabling her as surviving parent to deal at her discretion with the estate.
(e) See Coleb. Dig. Bk. V. T. 478, 420, Comm.
812 LAW OP INHERITANCE. [BOOK I.
any power to alien the property, though the Smriti Chand- rik& (a) and the Dayabh&ga (h) would apparently give her an exclusive interest as against her husband, (c)
In the Bombay Presidency, immoveable property given by a husband to his two wives was held, as to the share of each, to be Stridhana not transferable after the husband's death for value to the other, so as to deprive the grantor*8 daughter of her right to inherit, (d) and in Bnlvant Eav v. Piirshotam, (e) SirM. Westropp, C. J., says, "The widow in this Presidency takes a limited estate only in the immoveable property of her childless husband, or son, but she takes bis moveable estate absolutely." (/) In Fur shot am v. Banch- hod, ig) the same learned Judge has dealt with the nature of the widow's estate with reference to litigation between the death of her husband and the issue of letters of adminis- tration to his estate: —
" Here, from the moment of the testator's death, at the very least, up to the 27th January, the date of the letters of
(a) Ch. XI. Sec. 3, p. 8.
(b) Ch. IV. Sec. 1, p. 1, 18, 19 (Stokes, H. L. B. 236, 240).
. (c) See P. BacMraJu v. V. Venhatap'padu, 2 Mad. H. C R. 402.
(d) Kotarhasapa v. Chanverova, 10 Bom. H. C. E. 403. Comp. Rindamma v. Venkata Ramappa et al, 3 Mad. H. C. R. 268.
(e) 9 Bom. H. C. R. at p. 111.
(/) Bechar Bhagvan v. Bai Lakshmi, 1 Bom. H. C. R. 56; Vtnayak Anandrav et al v. Lakshmi bai, ib. 117 ; Pranjivandas et al v. Dev- hnvarbai et al, ib. 130 ; Mayaram v. Motiram, p. 313 of the 2nd Edition, 2 ibid. 323 ; 2 Str. H. L. 13 &c. So in Doorga Bayee et alv. PoortmVayee etal, 5C. W. R. 141. See above, p. 100. Under a gift from aHindO, his wife takes only a life estate in immoveables, and an absolute estate in moveables. There is no difference whether she takes either kind of property by will or gift. It is necessary for her husband to give her in express terms a heritable right or power of alienation to enable her to dispose of immoveable property. Koonjbe- haH Dhur v. Premchand DiUt, I. L. R. 6 Calc. 684. A gift from mere generosity by a widow out of a gift from a husband was held invalid. Budra Narain Singh v. Btip Kuar, I. L. R. 1 All. 734.
{g) 8 Bom. H. C. R. at p. 156 0. C. J.
iNTRODaoTioN.] woman's propeett. 813
administration^ and the day on which they were issued (a period covering the institution of these suits^ the laying on of the attachments before judgment, and the recovery of the jndgments themselves), the representation was fall. It was filled by the widow, who took as heir, and, although a HindA widow's estate in immoveables inherited from her husband, which has been compared to that of a tenant-in-tail after possibility of issue extinct, (a) [is such that] she may alien only under very special circumstances, and although she may be restrained by injunction from committing waste, (6) yet she does fully represent the inheritance even in that kind of pro- perty, (c) Peel, C. J., once described her estate thus : 'The estate, although sometimes so expressed to be, is not an estate for life : when a widow alienates, she does so by virtue of her interest, not of a power, and she passes the absolute interest, which she could not do, if she had not a life-estate in quantity. There is no ground for altering the nature of the estate. It devolves as an estate by inheritance nnder the Hindft law, and is the estate which passed from the late owner : nothing is in abeyance, {d) The incapacity to alien- ate is not in any way inconsistent with an inheritance.' (e) And then he instances estates tail after the statute do donis and until the invention of recoveries, and other estates of inheritance which are not alienable ; and I may add that
(a) Mohar Ranee Essadah Bai v. The E. L Company ^ 1 Taylor and BeU, 290.
(6) Hurrydoss Butt v. Bungtmmoney Doeeee et oZ, 2 Taylor and Bell, 279 ; Oojutmoney Dossee v. Sagormoney Dossee, 1 ibid. 870 ; Sreemutiy Jadommey Dahee v. Saradaprosoon Mooherjee, 1 Boalnois, Rep, 120.
(c) Doe dem. Rajchunder Paramanic v. BuUoram Biswas, Fulton, Bep. 133, 135 ; Oopeymohun Thakoor v. Sehun Cower et dl, 2 Mori. Dig. 105, 111 ; CossmautBysack et aJ. v. Hv/rroosoondry Dossee et al, 2 ibid. 210, 215.
{d} A right of pre-emption may be exercised by a widow who takes her husband's property by inheritance. Ph/ulman Rat v. Dani Kurai I. L. R. 1 All. 452.
(e) Hurrydoss Butt v. Rimgwimoney Dossee et al, 2 Taylor and Bell, 281, 282. 40h
314 LAW OP INHERITANCE, [bOOK I.
of a Hindfl, entitled to ancestral lands of inheritance, who, after hehas male issue, and while they are living, is unable to alienate their inchoate shares in the lands which he holds un- doubtedly as of inheritance, (a) Peel, C. J., continues: ' Nor does the fact that the next taker takes as heir to a prior owner, and not to the immediate predecessor, furnish any reason for holding the estate a mere life-estate. It is, however, for purposes of alienation unwarranted by Hindft law, no greater an estate — and in one respect it is less beneficial — than a life- estate under the English law, since the accumulations on the death of the female heir pass, not to her heir, but go with the principal. Whenever, in legal decisions or in text- writers, the estate is described as one for life, nothing more is meant than a reference to the usufruct and the power of disposition, where the exceptional power of disposition is not properly exercised. The estate is not held in trust, express or implied. It is a restrained estate : not a trust estate. In her husband's moveable property at this side of India she takes an absolute estate^ subject to payment of her husband's debts. (6)
"In Ramchandra Tant[r']a Vas v. Dharmo Narayan OhucTcerhutty, (c) a Full Bench held at Calcutta Hhatthe interest of an heir, expectant on the death of a widow in possession, is so mere a contingency, that it cannot be re- garded as property, and, therefore, is not liable to attachment and sale under Sec. 205 of the Civil Procedure Code.''
As to what is said by Peel, C. J., in the passage quoted from his judgment on the subject of accumulations, reference may be made for the Bengal law to the language of the Judicial Committee in the recent case of Musst Bhaghutti Daee v. Chowdry Bholanath Thakoor et al. (d) Their Lord-
(a) As to this see now under Partition, Bk. II. Introd. (6) Vinayah Anand Bav et al v. Lakshmibaii 1 Bom. H. C. B. US; Praajioandas et al v. Devkuvarbai et al, ibid. 130. (c) 7 Bang. L. R. 341. {d) L. B. 2 L A. at p. 261, S. C. 24. C. W. R. 168.
INTRODUCTION.] WOMAN's PBOPEETT. 315
ships say, " if she took the estate only of a Hindft widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover posses- sion of all such property, real and personal/' But the docu- ments executed by the husband and son gave, as construed, such an interest to the widow, it was said, " that whatever property, real or personal, was bought by Chunderbutti out of the proceeds of her husband's estate belongs to her and consequently to the defendant." In the same case it was held that land or personal property purchased out of the accumulations were the widow's equally with the fund, and devolved upon her heir, (a)
In the case of Oonda Kooer et al. v. Kooer Oodey Singh, (h) their Lordships considering that purchases made by the widow were to be deemed accretions to the deceased hus- band's estate, awarded them to his heir against her devise, but purposely refrained from expressing an opinion as to what would be the effect of a widow's making purchases out of the profits of her widow's estate, with a distinct intention of appropriating such purchases to herself and conferring them on her adopted son. (c) The Mitakshar^, as we have seen,
(a) See further the case of iS. Soorjeemoney Dossee v. Denobundoo Mullica et (^,6 M.I. A, 526, and 9 ibid. 123; Oovind Okunder etalv. Dulmeer Khan et al, 23 C. W. R. 125; Nihalkhan et al v. Uwrchum LaU et al, 1 Agra R. 219. In Sri Raja Rao Venkata Mahapati v. Mahipati Suriah Rao (16 Nov. 1880), the Judicial Committee held that immoveable property bought by the widow out of funds given by the husband is equally at her disposal aa the money with wHich it 'was purchased. Accumulations from her maintenance or her life estate and presents may be invested by a lady in land, which remains Stridhana. NeUarkumaru Ghetti v. MaruJeathammal, I. L. R. 1 Mad. 166, and the cases at pp. 281, 307 of the same volume, elsewhere referred to.
(h) U Beng. L. R. 159.
(c) See also Sonatun By each v. T. JiiggiUsoondree Dossee, 8 M. I. A. 66 ; Gooroo Pershad Roy et al v. Nuffar Doss Boy et al, 11 C. W. R. '^97; S. Pvddo Monee Dossee v. DwarkaNafh Biswas et al, 25 ibid. 335.
316 LAW OP INHEEITANOB. [bOOK I.
would not restrict her dealing with such property. In one case the S&stri said that a carriage and bullocks porchased by a widow out of her pension were Stridhana^ (a) and in the recent case at Madras of Venleata Rama Rau v. Venkafa Suriya Rau et aly{b) it was held that where a widow, having received presents of moveable property from her husband, had, after his death, purchased immoveable property with these and the money raised on her jewels, the property was Strtdhana which she could dispose of by will. Under the Bengal law^ as decided by the Judicial Committee, in Luchmunehunder Oeer Oossain et al v. Kalli Ohum Singh ei al, (c) a woman purchasing property out of her Stridhana has full power to dispose of it daring her husband^s life, (d)
The S&stri in the case of Musst. Thatoor Deyhee v. Bai Baluk Ram et al, {e) a case from the N. W. Provinces, govern- ed generally by the Mit&kshara, went so far as to say, " The real property which 0. or H, acquired during their lifetime with the proceeds of the former^s separate share is not hereditary, and the latter (because her husband died with* out issue) oan give it away to any one she likes. Real property cannot be alienated in the event of the person who acquired it having issue of his own." He seems to have been hampered by his recollection of some of the ancient texts against a severance of the patrimony from the family, (/) but apart from the practical error ipto which
(a) Q. 1576, MS., Ahmednuggar, 26th August 1856.
(b) I. L. R. 1 Mad. 281.
(c) 19 C. W. R. 292.
{d) In Otumesh Junonee Debia v. Bireehur Dhul, 26 0. W. B. 176, a widow sued her husband's brother successfully for two-ihirds of a house partly as her husband's heir, partly on a conveyance to her during her husband's life by her husband's brother of his one-third share on a purchase, said, but not provedi to have been made oat of her Strtdhana.
(e) 11 M. I. A. at p. 150.
(/) Even now " the Rajput never gives lands with his daughters, except possibly a life-interest in the revenue." Sir A. C Lyall, in Fortnightly Review for January 1, 1877, p. 111.
INTRODUCTION.] WOMAN's PROPBBTT. 317
this led him^ it would not be easy to demonstrate that this opinion was not in accordance wifch the Mit4kshar^. The Judicial Committee, however, after a review of the principal text books and decisions, dissented from the S&stri^s view. They say (at page 1 75) : '^ The result of the authorities seems to be, that although according to the law of the Western Schools, the widow may have a power of disposing of move- able property inherited from her husband, which she has not under the law of Bengal, she is by the one law, as by the other, restricted from alienating any immoveable property which she has so inherited; and that on her death the immoveable property, and the moveable, if she has not otherwise disposed of it, pass to the next heirs of her hus- band. There is no trace of any distinction like that taken by the Pandit between ancestral and acquired property. In some of the cases cited the property was not ancestral/'
In Vijiarangam's case, (a) it was said that property, inherited by a woman from her husband, ranked like that inherited from any other relative, as Strldhana, according to the Mit^ksharll, but her capacity to deal at will with such property, if immoveable, as a necessary consequence of this propositiouy was denied. At page 263, it is said : —
''We have seen that Vijn^nesvara includes all property inherited by a woman in her Stridhan. In the same chapter (Mitak., Ch. 11. Sec. 1, pi. 39) he had previously arrived, throngh an elaborate course of argument, at the conclusion that a widow takes the whole estate of her deceased husband separated in interest from his brethren. This doctrine, therefore, must have been fully present to his mind when he developed his theory of Stridhan in Sec. 11. He makes no distinction between the inheritance of a woman from her husband and her inheritance from any other person. The right which he thus confers on her is balanced by a corre- sponding right which he allows to the husband and his
(a) Vijiarangam et al v. Lakahman, 8 Bom. H. G. R. 244 O. C. J.
318 LAW OP INHEEITANCE. [ BOOK I.
sapindas. That inheritance from a member of her own family, which on a woman^s death would, according to the Bengal School, revert to the next heirs of him from whom she inherited (a) and which, according to the Vyavahira MayAkha, would go to her heirs as though she had been a male, is assigned by VijnAnesvara (b) to her daughters, her sons, and after them to her husband and his sapindas. The two rules spring from the same source — a higher con- ception of a woman's capacity for property, and of her com- plete identification by marriage with her husband's family, than the Bengal lawyers would entertain — while the limiting of the widow's rights as an heir to the case of her husband's having been separated in interest from his brethren, har- monises more ^ith the Hindft theory of the united family than the opposite doctrine of her taking his share equally, whether the family have been divided or not.
" VijnSlnesvara, like all the Hindd lawyers, denounces the appropriation of a woman's property by her husband, except in cases of great pressure, and by the other kinsmen under any circumstances, (c) But he lays down no rule as to the extent of the woman's own power over the property. The natural conclusion would seem to be that he considered this already suflHciently provided for as to his immediate subject, inheritance, by other lawyers, and by the analogies to be drawn from his rules as to the estates of a male proprietor. Now in Ch. I. Sec. 1, pi. 27, 28, it is laid down that a man is ' subject to the control of his sons and the rest (of those interested) in regard to the immoveable estate, whether acquired by himself or inherited,' though he may make a gift or sale of it for the relief of family necessities or for pious purposes, {d) It is
(a) Colebrooke, Dig. Bk. V. T. 899, 477. (6) Mit&k. Ch. n. Sec. 11, pi. 9, 12, 25.
(c) Mit&k. Ch. 11. Sec. 1, pi. 32, 33; Stokes, H. L. B. 465-66.
(d) If he reserve enough for the support of the family, however, the father is allowed to deal, free from interference with what he has Iiimself
INTRODUCTION.] WOMAN's PROPERTY. 319
clear, therefore, ttat a right of absolute disposal did not enter into VijMnesvara^s conception of the essentials of ownership, (a) He admits (b) the genuineness and the authority of the text of Narada, which, with so many others, proclaims the dependence of women, which he says does not disqualify them for proprietorship* He allows a hus-
acquired. Such is the effect of the passage referred to when taken with Chapter I. Sec 5, pi. 10, unless the latter is to be referred— as perhaps on correct principles of interpretation, it ought to be referred — solely lo moveable property.
(a) With the HindA conception of ownership as consisting in exclu- sive use not necessarily including a right of alienation, we may compare in the English law the estate of the tenant for life under the Statute De Bonis and under the Koman law the estate of an heir subject to substitutions. He was during his life regarded as sole proprietor, the substitute down to the time when the substitution opened had only a bare expectation ; judgments and prescriptions operative against the successor as heir operated also against the sub- stitute ; yet subject to special exceptions the former could not alienate the proparty. The substitute moreover, though he had but a mere hope of succession, could take all measures requisite for the preserva- tion of the property. See Poth. Tr. des Substitutions, Sec. V. Art. 153, 155, 160, 175, 178.
The closest resemblance however to the estate of the HindA widow is perhaps to be found in that of the widow under the old Teutonic laws in the property enjoyed by her as dower. Of this she was pro- prietress, yet without any power of alienation. The rights of the heirs were suspended during her widowhood ; the succession opening only on her death or remarriage. This dower in the lands of the hus- band was variable in proportion according to the settlement, but by custom was fixed usually at one-third. This was exclusive of the dos legitima or money gift, the amount of which it was found necessary to limit by law. The dower of the English law was confined to the husband's lands, though called dos. It originated probably in the Saxon law which is continued in that of gavelkind and free-bench, giving a moiety of the lands to the widow during a chaste widow- hood modified by the more widely spread custom, limiting her enjoyment to one-third. This she holds as a sub-tenant for life of her husband's heirs who must set out her fands by metes and bounds. See Laboulaye, op, cit, 401 ; Bl. Comm. Bk. II. Ch. VIII.
(b) Mit&k. Ch. II. Sec. 1 ; pi. 25, Stokes, H. L. B. 435.
320 LAW OF INHBRITANOB. [boOKI.
band^ as we have seen^ in some cases to dispose of lis wife^s property. The inference to be gathered from these passages is strengthened if we look into his chief authori- ties. Mann allows women no independence. The verse denying it occurs in Yajnavalkya also (Ch. L). Katy&yana, so frequently quoted in the Mit&kshara, says that the widow is to enjoy the estate frugally till she die, and after her the heirs (a) consistently with that passage of the Maha- bharata (b) which limits the widow to simple enjoyment. Jaganndtha (T. 402), referring to texts 476 and 477, observes that as a woman is not allowed to make away with immove- able property given to her by her husband, much less can she dispose at her will of such property inherited from him. Even Brihaspati, who, as we have seen, insists emphatically on a widow^s right of inheritance, is equally emphatic in re- straining her power of dealing with it (c)
It seems a reasonable inference from these and other autho- rities that, as to immoveable property at any rate, (and with immoveable property, according to the Hindd law, is classed every kind of property producing a periodical in- come,) the woman's ownership is subject to the control of her husband, and of the other persons interested in the preservation of the estate, and that it cannot be need- lessly dissipated at her mere caprice. Katy&yana, indeed, as quoted by Nilakantha, (d) says expressly " she has not property therein to the extent of gift, mortgage, or sale," except, as Nilakantha adds, for appropriate purposes. A widow may dispose as she pleases of property as to which this power is expressly conferred, but to recognise inherited property as part of her Strtdhana by no means involves the
(a) Colebrooke, Dig. Bk. V. T. 477.
(6) T. 402.
(c) Vyav. May. Ch. I. V. Sec. 8, pi. 3 ; ihid. 84.
(rf) Vyav. May. Ch. IV^ Sec. pi. 4; Stokes, H. L. B. 84. This restriction applies equally to lands given by a husband to his wife as Stridhana. As wife or as widow she cannot alone dispose of them. 2 Macn. H. L. 35.
INTRODUCTION.] WOMAN's PEOPERTT. 821
coDsequence that she can alien it without good reason . {a) The argument in support of this consequence put forward by Jagann^tha in his comments on Golebrooke^s Digest^ Bk. V.^ T. 399, involves a very obvious fallacy.
And this is the practical conclusion at which Prof. H. H- Wilson at last arrives. He says (page 77) : — " We have 80 fully discussed the doctrine of alienation by widows that we need not advert to the cases illustrative of grants made by them. There is clearly a difference between the situation of a widow inheriting, and a father in possession, because the sons and grandsons have a direct lien upon the estate, which remote heirs have not : although, however, the law might be held to permit a widow's alienation of property to which she succeeds as heir, yet the obvious analogy of the case, and the general impression on the sub- ject, operate to prevent her alienation of fixed property and chattels, and therefore the decisions of the Sadr Dewani iu the cases of Mahoda v. Kalyani et al, (h) and Vijaya Devi V. Annajpurna Devi (c), may be admitted as law, the authority of the Court having been interposed, as we have recommended it should be, in every case, to make that invalid which was considered immoral.^'
At 1 Macn. H. L. p. 40, it is said that a wife is subject to her husband's control even as to her separate and peculiar property ; but this is opposed to the definition of Strldhana in the Dftyabhaga. (d) It rests perhaps on the general texts as to a woman's dependence which are cited in Coleb. Dig.,
(a) See N&rada, Ch. I. Sec. 3, p. 28. Property consists not in the right of alienating at pleasure ; Coleb. Dig. Bk. V. T. 2, Comm. De- pendence does not imply defect of ownership, i&id. Bk. II. Ch. IV. T. 17, Comm. As to property taken as her share by a wife or widow in a partition, Jagann&tha asserts her power to dispose of it equally ^th Strtdhana. Coleb. Dig. Bk. V. T. 87, 88, Comm. This agrees ^th the opinion of the pandits cited below, and with the Mit&kshara Ch. I. Sec. VII., Sec. II. para. 8 ; above, p. 303, 308, 310.
(h) 1 Calc. 8. D. A. R. 62.
(0 Ibid. 162.
W) See aboTe, p. 266.
322 LAW OF INHEBITANOB. [bOOK L
Bk. in. Ch. I.^ T. 51, 52; and on these Jaganndtb throws oat a suggestion that^ although a widow, being free from the dominion contemplated by Manu and Narada, is absolute mistress of her acquisitions of property, yet an unmarried daughter, being possibly oomprefaended within the general term * son * takes any acquisition of wealth subject to her father's superior right, which, as to such pro* perty, continues during her subsequent coverture, so as to prevent an alienation without his assent, (a) But her guar- dianship is transferred to her husband and his family on her marriage. The texts, if taken literally, would prevent any acquisition at all, and being superseded or explained away so as to allow of a widow's acquisition of property, they cannot properly be applied to a state of things which their writers did not conceive as possible*
The circumstances under which a widow may, according to the law which assigns her only a special estate, deal with the property inherited from her husband, have already been considered at p. 99. The chief of them are compendionsly stated in the case of Lalla Gunpat Lall et aly. Musst Toorun Koonwur et al {b) : — " The Srilddha of the widow's husband, the marriage of his daughter, the maintenance of his grand- sons, and the payment of the husband's debts are legitimate grounds of necessity for alienations." Self-maintenance, discharge of just debts, protection or preservation of the estate, are grounds of expenditure equally justifiable as pious purposes, (c) The charges of a pilgrimage were refosed recognition as a ground for alienation in jffuro Mohun v. 8* Auluck Monee Dassee et al. (d) A compromise made by the widow in fraud of the rights of the expectant heirs is not binding against them, (e) That her defective capa-
(a) Coleb. Dig. Bk. V. T. 4,77, Comm.
(b) 16 C. W. B. 62 C. R.
(c) Soorjoo Pershad et al v. B. KrUhan Pertdb, 1 N. W. P- B. 49. id) 1 C. W. K 252. *
(e) Mu88t. Indro Kooer et al v. Shaikh Ahdool Pwrkat et ol, U C. W. B. U6 C. B.
DTTRODUCTION.] WOMAN's PBOPEBTY. 323
city however most not be made a means of fraud is noticed ia Bk. I. Ch. II. Sec. 2, Q. 4^ as also that her transactions mast be made good so far as they can be out of her limited estate, (a) A wife in Bengal has a power o£ sale over immoveables which she has purchased out of her separate funds, (b) The wife, however, according to Macn. H. L. 40, on whom their Lordships relj, is subject to her husband's control, even as to her Stridhana. A widow turning her moTeable Strfdhana into immoveable property can dispose of the latter by will, (c)
Srt Krishna Tarkalank&ra in the D^ya Krama Sangraha regards Stridhana chiefly from the point of view of the particu- lar modes of devolution prescribed for the different elements of it. It is for the purpose, he says, of determining precise- ly to which of these the different rules of succession apply, that the definitions of the different kinds of Strtdhana have been framed, {d) Vijninesvara's rules for the succession to Stridhana are discussed in the Introductory Remarks to Bk. L Ch. IV B., Sec. 6, of this work, {e) where too the rules of the Vyav. May. on the same subject are considered. The statement of Sir W. Macnaghten (1 H. L. 88) that ''In the MitaksharA whatever a woman may have acquired, whether by inheritance, purchase, partition, seizure, or finding, is denominated woman's property, but it does not constitute her peculiuntj* is entirely unsupported by anything in the Mit&kshar4 itself, (/ ) and has been the source of much con-
(a) See Mayaram v. Motvram, 2 Bom. H. C. R. 313 ; Bagooa Jha v. Lai Doss, 6 C. W. R. 36 0. R. ; Ram Shevjuk Roy et aZ v. Skeo Gobind Sahoo, 8 ibid, 619.
(b) Luchman Chunder Qeer Qossain etaly. KaUi Chum Singh ei al, 19C.W.R. 292, P. C.
(c) Venkata Rama Bau v. Venhata Suriya Bau el al, I. L. R. 1 Mad. 281.
(d) D4ya Krama Sangraha, Ch. II. Sec. 2, pa. 1 ; Stokes, H. L. B. 487.
(e) See also Bk. I. Introd. p. 146 ff. above.
(/) " ViJQ&De^vara erklart Adyam als alles auf irgend eine
Art Brworbene ; erbehauptet, dass Stridhana hiereinfech in seiner
324 LAW OP INHERITANCE. [bOOI: I.
fnaion in practice. That work, haFing enlarged the woman's capacity to take property all of which it terms Strldhana, then lays down rules of corresponding breadth as to its devolution. The exception of the Snlka and its probable origin have already been noticed. The Mayflkha, as we have seen, (a) while accepting Vijn&nesvara's definition of Stridhana, distinguishes between the kinds specially de« scribed in the Sastras, and for the devolution of which special rules are laid down, and all other kinds, which descend, he says, as if the female owner had been a male, {b) In the absence of a distinct rule in the Mit&kshar4 for the devola- tion of woman^s property this might have been an admissible doctrine under that law. But first the Mit&kshar^ makes the woman inherit ; then it says that Stridhana includes the property thus taken (Mit. Ch. II. Sec. XI. para. 8) ; then it says *' Stridhana has been thus described'* (Mit. Ch. II. Sec. XI. para. 8); " Failing her issue Stridhana as above
described shall be taken by her kinsmen as will be
explained'' (Mit. Ch. II. Sec. XI. para. 9) ; then that daughters and their ofi'spring take in priority to sons ; lastly that sons
etyraologischen Grundbedeatung zu nehmen sei: In»
ganzcn folgenden Abschnitt fiber das Stridhana und die Succession in dasselbe wird diese Definition festgehalten." — Jolly, Ueber die Recht- liche Stellang der Frauen <fec. p. 57. YijH&nesvara explaining Adyam BO as to include every kind of acquisition, insists on the etymological sense of the definition and adheres to it throughout the section on Stridhana and its devolution. If by pecullum Macnaghten nacant the kinds of property specifically enumerated in the Smyitis, he is in direct contradiction to the Mitiksharft, or else draws a distinction which the Mitakshar& does not draw, and on which therefore nothing turns. The rules given areas to "woman's property," not as to pecuUum, except in the single instance of Sdlka.
(a) Above, p. 145, 150 note {b) ; p. 272.
(6) The S4stri in a Bengal case, at 2 Macn. H. L. 121, directed that a woman's sons should succeed to land acquired by her. In this he agreed with the MayAkha, but in excluding a grandson he disagreed with it. The succession of the remoter heirs is in all cases governed by the same rules as though the property were a male's, according to the D&ya Krama Sangraha. See Vyavasth& Darpana, p. 727.
INTRODUCTION.] WOMAN's PEOPEETT. 325
take (Mit. Ch. II. Sec. XI., para. 19). An exception made as to the Sulka (Mit. Ch. II. Sec. XI. para. 1 4) and the special rule laid down as to that, serve to emphasize Vijn&nesvara's intention that the general rules should extend to every other case, 'Hhe author,*' as he says, "now intending to set forth fally the distribution of Stridhana, begins by describing it," (Mit. Ch. II. Sec. XL para. 1) and then gives rules for its devolution as above, (a)
The view taken by Jlmfltavahana, and constituting the Bengal law, is this. The Anvddheya or gift subsequent and the Prltidatta or present from a husband are types of all the special kinds of Stridhana, which he recognizes, and are, he says, to be equally divided between sons and daughters. The Tautaka or gift at the marriage goes to the unmarried daughters alone, (6) who have a preference over their married sisters in the distribution of the other Stridhana also, (c) Next after daughters as successors come the sons and their sons, taking precedence of the daughter's sons, after whom come the barren and widowed daughters, {d) This line of succession resting on the principle of exequial henefits diflfers widely from Vijnanesvara's, who next to daughters, places their daughters, and next to them, daughter's sons, (e) before the sons of the deceased woman are admitted. On failure of oflfspring, JimAta-
(a) What Y&jnavalkya (II 117) calls the "mother's property." Vijn&uesvara calls Stridhana. Unless, therefore, what the mother has inherited is not her property, it follows of necessity that he intended Stridhana to include heritage. So as to property inherited by a daughter included in Stridhana but subject to a special rule of devolution. Mit. Ch. II. Sec. XI. para. 30.
(h) See Srinath Qangopadhya ei al v. Sarhamangala Dehi, 2 Beng. L. R. lU A. C.
(c) Viramit. Sec. 8, p. 20.
(d) D&yabh&ga, Ch. IV. Sec 2 (Stokes, H. L. B. 243-251). For the «tep.Bon by a co-wife, see ihid. Sec. 3 (ibid. 261); DAya Krama San- gmha, Ch. II. Sec. 3, para. 11 (ihid. 493); Coleb. Dig. Bk. V. T. 605, 506.
(fl) Mit. Ch. II. Sec. 11, p. 10, 12, 18, 19; Stokes, H. L. B. 460-2.
825 LAW OF INHERITANCE. [bOOK I.
vahana (a) assigns to the deceased woman's husband married by an approved rite only property received at the nuptials. Her other property goes to her brother^ motherj and father in succession, (b)
Jagann&tha (c) follows Jimfttavfihana to some extent in bis rules as to the succession to Stridhana. Sons and dangbters succeed jointly except to the Yautaka. This on failure of sons is taken by daughter's sons, after whom come the son's sons. To other Stridhana, failing maiden daughters, sons, and mar- ried daughters, the son's son succeeds, and in default of bim the daughter's son. (d) After these the inheritance goes to the woman's own family of all her property, except gifts at the mar- riage, (e) ' The husband as to such property comes in after her brothers and parents. (/) The succession of the husband in the first place is limited to the specially enumerated kinds of Stridhana. As to property taken by inheritance the rale is that on the death of the woman it goes to the then nearest beirs of him whom she succeeded. The woman's own heirs are not regarded as heirs to property thus acquired. (9) Jimftta
(a) DAyabh&ga, Ch. IV. Sec. 3, p. 4 flf ; Stokes, H. L. B. 251.
(b) See Judoonath Sircar v. Busmnt Coomar Boy^ 11 Beng. L. R. 286. Farther details on tbe Bengal law will be found in tbe sammarj, D&ja- bb&ga, Ch. IV. Sec. 3 (Stokes, H. L. B. 261), under the head of Stri- dhana, in Macnagh ten's H. L. and in the Vyava8th& Darpana. At 2 Mori. Dig. 237, tbe S&stri says, in a Bengal case, -that even immove- able property given to a woman by her husband descends, on her death as a widow, to the heirs of Strtdbana or female property. Compare the answers, referred to above, pages 304, 308. Property taken by a woman before her marriage by bequest from her father w in tbe same case pronounced Stridhana. If it is her Stridhana then her heirs as classed in the province should inherit it. See Coleb- Dig. Bk. V. T. 420, Comm ; Mit. Ch. II. Sec. XI. para. 30.
(c) Coleb. Dig. Bk. V. Ch. IX. Soc. 2.
(d) Op. cii. T. 445, Comm.
(e) Ibid, T. 604, 608, 509, 611. (/) Ibid, 512.
(g) D&yabh&ga, Ch. XI. Sec. 1, p. 66 ff ; Stokes, H. L. B. 320, Ac. Sec. 2, p. 30, ibid, 329 ; Coleb. Dig. Bk. Y. T. 420, 422, Comm. j 1 Str. H. L. 130 ff.
i
INTRODUCTION.] WOMAn's PKOPEETY. 327
extends the mle even to a dangh tor's son succeediDg to bis maternal grandfather^ but this is contradicted by Jagan- nAtha. (a) Mitramisra (6) condemns the explanation given by Jimftta and generally follows the Mitt^ksharfi. He however not only gives the Solka to the brothers^ but also immove- able property bestowed by their parents, and what was given by the kinsmen. The husband married by an approved rite succeeds, with these exceptions, to the whole property left by his childless wife, not merely to her nuptial presents. Therules of the Smriti ChandrikA (c) and the Madhaviya {d) are glanced at in the coarse of Mitramisra's discussion. The Yiv&da Chint&mani gives the Yautaka to the unmarried daughter, the son, and the daughter's son in succession. Presents from the woman's kinsmen it distributes equally between sons and daughters. The Sulka it assigns to the brothers. On failure of issue as far as her daughter's son^ the deceased woman's husband is pronounced heir, {e)
This slight sketch of the systems or attempts at system of the other commentators will serve to show the great advan- tage of Vijn&nesvara's scheme in point of simplicity. This, as shown in Bk. I, Ch. IV. of this work, and above, p. 146 ss., has generally prevailed in Bombay. Thus in Oangdrdm et al V. Bdlia et al, (/) it was ruled that property inherited by a woman from her father is Strldhana, which descends first to her daughter, and failing a daughter, to her husband and his heirs. In Prdnjeevandds et al v. Bewcooverldee et al, {g) it was held that "daughters take the immoveable property absolutely from their father after their mother's death." In Vinayek Anundrao et al v. Luxumeehaee et al, (h) it is said of the mother
(a) Sitahai v. Badri Prasad, I. L. R. 8 All. 134.
(b) Viramitrodaya, Transl. p. 221, 228 as.
(c) See Smriti ChandrikA, Oh. IX. Sec. 2, 3. id) M&dhaviya, p. 43.
(e) Vivdda Chint&mani, p. 266 £f. (/) Bom. H. C. P. J.'f. for 1876, p. 31. (^) 1 Bom. H. C. R. 130. {h) IBom.H. C. R. 121.
328 LAW OF INHEBTTANCB. [bOOK I.
iDheriting from her son : — ** The qnantam of estate which she is allowed to take in the character of heir to her son, is not free from doubt ; although in the category of those who take as heirs to a separated brother^ there is no distinction or difference made between the qaantnm of estate taken by a mother from that taken by a son, a father, a brother, or any other relative, who admittedly takes in such an inheritance the most absolute estate known to HindA Law/^ (a) As to sisters it is said (p. 124) : — " As to the mode in which sisters take, it would appear by analogy that they take as daughters. In a passage from the Commentary of Nanda Pandita, cited by Mr. Colebrooke in his annotations to para. 5 of Sec. 5 of the second chapter of the Mit&kshar&, occur these words : ' The daughters of the father and other ancestors must be admitted like the daughters of the man himself, and for the same reason,' but the daughters of the man himself take abso- lutely, and so, therefore, do the sisters/' (6)
In the case already referred to, the S&stri says that the property taken by inheritance by a mother from her son is for the purpose of further descent to be regarded as her property. In the case of Jugundtk v. 8heo Shunkar^ (c) the Suddur Court, on the advice of its Sistri, applied the law of the Vyav. May., by pronouncing a woman's own sister heir in preference to her husband's sister to property that the deceased had inherited from her father. The case, Q. 5, is a strong one, for there the son of a woman by her first marriage was pronounced her heir to property inherited by her from her second husband, in preference to .that husband's
(a) Manu, Ch. IX. Sec. 186, 217 ; Mit^kshard on Inheritance, Ch. II. Sec. 3 (Stokes, H. L. B. 441) ; Vyavah&ra MayOkha, Ch. IV. Sec. 8, p. 14 (Stokes, H. L. B. 87).
(6) See now Bk. I. Oh. II. Sec. 14, 1. A 1, Q. 4, Remark. A maternal great-niece takes an absolute estate by inheritance like a daughter or sister. I. L. R. 5 Bom. 662.
(c) 1 Borr. R. 102.
iKTRODUonoN.] woman's peopeety. 329
own femily. In Bai Muncha v. Narotamdas Eashidas et al,(a) it was ruled that property inherited by a woman, except by a widow from her hasband, ranks as Stridhana and descends accordingly, and lastly, as we have seen in Vyayarangam v. Lakskman, {b) that a widow succeeds to her husband's pro- perty as Stridhana, which then devolves according to the law of the Mitakshar& or of the Mayftkha, as either authority may locally prevail over the other, (c) In Kotarbasapa v. Chanverova, (d) property given by a husband to one of his wives was held to be Stridhana, held by her under a restriction against a sale afler his death to her co-widow, so as to deprive her daughter, of her right of inheritance.
The use of the word Stridhana in the several senses to which we have referred may be observed in the above cases. According to the Mitakshard,, the property must have been Stridhana in every case, but it is not clear that in some instances the idea was not present that there might be pro- perty held by a woman which was not Stridhana, and which was not subject according to the Mitakshara to the general rules laid down for the devolution of that kind of property. In Bengal and Madras (e) this notion has gained a distinct ascendancy through the prevalence, in those provinces, of authorities which, as we have seen, give to Stridhana a narrower meaning, and prescribe for its devolution much more intricate rules than Vijn&nesvara.
(a) 6 Bom. H. C, R. 1 A. C. J.
(6)8Bom.H.O.R.244 0.C. J.
(c) As to this see Sdkhd/ram Saddshw v. Sitabdh I* L. B. 3 Bom. 353; and above, pp. 10 sa.
((J) 10 Bom. H. C. R. 403.
(e) Colebrooke (2 Str. H. L. 403) says the descent from the widow is regulated by the text of Brihaspati, Bk. V. T. 513 (misquoted as T. 413) of Coleb. Dig. This the Vyav. May. Chap. IV. Sec. 10, para. 30 (Stokes, H. L. B. 106) applies to the special Stridhana only, in the CMe of a failore of the nearer heirs provided by para. 28, i.e. the husband in case of an approved marriage, and the parents in other caaes, though apparently before the Sapindas of either. The Mit. 42h
830 LAW OF INHBEITiiNCfE. [bOOK I.
In Chotay Lall v. Chunnoo Lall, (a) Pontifex, J., says, " It appears to me, therefore^ that if this case was nncorered bj authority, property taken by inheritance by a woman from her father would be her separate property, unless the word» ' acquired by inheritance' are altogether rejected from the text* ; but being constrained by the weight of the con- trary authorities he felt bound (p. 239) *' to decide that in this case Luckey Bibee's estate was only a qualified estate^ and that, upon her decease, the plaintiffs, as the heirs of her father, became entitled to the property in dispute: though I must confess that, speaking for myself, if the case had been untouched by authority, I should h&ye felt compelled to give a plain meaning to the plain and unqualified words of the Mit&kshar&, rather than explain them away or in effect reject them, by the application of principles of which, after all, we have only a hazy and doubtful knowledge." (b) On appeal this decision was affirmed by Sir E. Couch, C. J,, and Ainslie, J. In the judgment of the learned Chief Justice, the chief precedents for a departure from the text of the Mit^ksharft are cited, (c)
Chap. II. Sec. 11, para. 11 (Stokes, H. L. B. 460)merely alloivs the sa- pindas of husband or parents to sncceed. In this case Colebrooka must have intended to state the law of the Smfiti Chandriki aad M&dhaviya, not of the Mit&ksharft. See Smriti ChandrikA, Chap. IX. Sec. 3, para. 36. In Madras on the death of one who inheiited as a maiden daughter she is sncceeded by her married sisters, not by her own sons, MuUu Vaduganadha Teva/r v. Dorasingha Tevar, I. L. R- 3 Mad. at p. 335 ; and Simmani Ammal t. Muttammod, %b. at p* 268. See p. 107 ss. supra.
(a) 14 B. L. R. at p. 237.
(&) A similar conclusion is arrived at by Innes, J., I. L. R.3 Mad. at pp. 310, 313, and at p. 333, Muttu Sw6mi Ayyar, J., says, "Thereii no doubt that Vijn&nesvara Yogi, the author of the MitAkshard, classei it as stridhanam," but these learned judges held that the Mit&kfiharf did not on this point give the law to the Madras presidency.
(c) These are : Miisst, Gyankoowwr v. Doohhwm Singh, 4 Calc Sel. Rep. 330 ; Sheo Sehai Svngh eialY. Mus$t. Omed Koowar, 6 Calo. Sel
DmoDUonoN.] woman's pbopeett. 331
Of these four are Bengal cases, and rest partly on the doc- trine of the D&yabhaga and partly on Macnaghten's mistaken notion that the Mit&kshara recognized woman's property whiA was not Strldhana, or that it provided some rule for the descent of such property diflferent from the one pre- ficribed for Stridhana. A Madras case (a) also is cited in which it is said that the texts recognizing a daughter's inheritance as Stridhana relate only to the appointed daaghter. This is directly opposed to the Mit^ksharA, (6) as is another theory started in the same case that the daughter inherits only as the passive instrument of pro- viding a worshipper for the deceased, (c) Vijnanesvara basis Sapindaship entirely on consanguinity* (d) The Bombay case of Navalram Atmardm v. Nandkishor Shivnarayan, (e) referred to by the learned Chief Justice of Bengal, rules that property inherited by a married woman from her father is Stridhana and descends as Stridhana to her daughters. Vijnanesvara's leading principle is that women gain as full ownership by inheritance as by any other recognized mode of acquisition. If however they take a full ownership they must in the absence of an express rule to the contrary transmit the property to their heirs. (/) K&tyayana^s rule, {g) supposed
Bep. 301 ; Heralal Baboo v. Musst. Bhuncoomary Beebee, Calc. S. D. A. E. for 1862, p. 190 ; Punchunand Ojhab et al v. LaUhan Misser et ai. 3 C. W. R. 140 ; Deo Peraad v. Lujoo Roy, U Bang. L. R. 245 n, 246 n, S. C. 20 C. W, R. 102 ; Katama NcUchiar v. ths Raja of Shivagunga, 6 M. H. C. R. 810.
(a) Katama Natchiar v. The Baja of Shivaganga, 6 M. H. C. R. 310.
(h) See Mit. Gh. 11. Sec. 2, para. 5, and Ch. I. Sec. 11, para. 1 ; Stokes, H. L. B. pp. 441, 410.
(c) 6 M. H. C. R. p. 338 ; Mit. Ch. II. Sec. II. paras. 2, 3.
(d) See above, p. 120.
(e) 1 Bom. H. C. R. 209.
(/) See Vyav. May. Ch. IV. Sec. X. paras. 22, 26; Smriti Ghand. Ch. VIIL para. 11. is) Coleb. Dig. Bk. V. T. 477.
332 LAW OF INHEBITANCB. [bOOK I.
by other commentators to bring in the husband^s heirs after the widow by the mere word " heirs" is by VijnaneBrara significantly omitted.
Jagann&tha shows (a) that the inference drawn in the case of other female successors by JimAta Yahana from the text of Eftty&yana relating to a widow is altogether nnfound- ed. Of Jimfita's view that on the death of a daughter who had succeeded as a maiden to her father^s property, that pro- perty passes to her married sisters as his heirs previoosl; excluded by her, he says it is *' not directly supported by the text of any legislator or the concurrence of any commentator." Hence, he says, in the case of a daughter's succession to her father, her heirs, not his, take on her death except where JtmAta's personal authority is accepted.
In one of the Bengal cases the Yiv&da Chint4maniis referred to as if it supported the narrower limitation of the estate taken by way of inheritance by a widow or daughter. What the Vivada Chintamani says, ho\frever, as stated by the learned editor, is that " any property which a woman inherits is her Strldhana, Hence any property of her husband which she inherits shall on her death be received by the heirs of her peculiar property.^' (b) This being so even in the case of a widow to whom K^ty&yana's rule in favour of '*the heirs'* directly applies, it follows a fortiori that "if the mother die after inheriting her son's property such property becomes her Stridhana. Hence the heirs of her peculiar property get it." Similarly Visvesvara and B^lambhatta, the two principal commentators on the Mitakshar^, say: "If the succession (to a man deceased) be taken by the grand- mother it becomes a maternal estate and devolves on
her daughters, or successively on failure of them on her daughter's sons, her own sons and so forth, (<?) i. e. the property
(a) Coleb. Dig. Bk. V. T. 420, Comm.
(5) See Viv. Chint. Table of Succession XH, XIII, pp. 262, 292.
(c) Mit. Ch. II. Sec. IV. para. 2, note. At Allahabad, however, exactly the contrary was held, consistently with the other cases, Phukar Singh v. Banjit Singh, I. L. R. 1 AH. 661.
INTBODUCnON.] WOMAN*S PBOPEETY. 383
is Stridhana though taken by inheritance from a grandson. The term is not used^ because the doctrine of the Mit&kshar& being once received^ it had no specific significance^ (a) but the devolution prescribed necessarily implies it.
The Saraswati Vil&sa^ Sec. 264, explains Y&jnavalkya's text in precise agreement with the Mit&kshar^. It describes Stridhanaas a kind of '* d&ya ^'{b) Sec. 333 flf ; and includes a woman's succession in the class of unobstructed inheritance. Sec. 398. (c) In providing also for succession to Stridhanain this largest sense, though it recognizes the special rules applic- able to Sftlka, &c.. Sees. 288, 303, it does not ground any dif- ference on the fact of the Strldhana's having been inherited or not inherited property. In all cases save those which are the subjects of special rules, it assigns the succession first to daughters on account of their partaking their mother's nature more fully than sons. It limits the woman's power of deaHng with immoveable property as do the Vivida Chint&mani and the other commentaries, {d) without contra-
(a) Comp. Vyav. May. Ch. lY. Sec. X. para. 25.
(h) The Smriti Chandrik&, Ch. IV., reconciles the familiar Vedic text on the unfitness of women to inherit with the passages that assign shares to a mother and a sister, by arguing that these shares not being of definite portions, constituting property subject to partition, cannot be D&ya (commonly rendered heritage), which involves the notion of a continuous right of participation in the successive male members of the family, inherent in each member from the moment of his birth. As women have not common &mily sacrifices to sup- port, that central notion of the joint family fails in their case as a support of the group of ideas, applicable to an undivided estate amongst males. No rules are provided for the regulation of a joint female property, and the Vyavh&ra Maytlkha, Ch. IV. Sec. 8, pp. 9 and 10 (Stokes, n. L. B. 86,) says that in the case of a plurality of widows or daughters, they are to divide it and take equal shares.
(c) The importance of this from the Hindu point of view consists in this, that the " unobstructed " right is the fullest conceivable, not being obstructed or deferred as ownership by the existence of the present possessor.
{d) See Smyiti ChandrikA, Ch. IX. 13. 16.
834 LAW OF INHEBITANCB. [bOOK I.
dieting the Mit&ksliara^ which recognizes her constant depend- ence, (a) In Kdtama Ndtchidr v. The Raja of ShivagungOi (h) however, the Privy Council say : " The passages in the Mitak- sharii contained in claases.2 and 3 of Section 1, Chapter
I when examined, clearly appear to be mere definitions
of 'obstructed' and 'non-obstructed' heritage, 'and to have no bearing upon the relative rights of those who take in default of male issue,' " and consistently with this Jagannatha points out (c) that if "obstructed" inheritance gives but a defective ownership as some authors have contended as a ground for cutting down the estate of a female succes- sor, the principle must apply to a daughters son, a papil, and the other remote heirs in whose cases no such limitation' is admitted. Notwithstanding the cases that rest on a different interpretation, the high native authorities just referred to seem to place it beyond reasonable doubt that the Mitllksharik intended rightly or wrongly to give a woman full ownership by inheritance, and to make her the source for property thus taken of a new line of succession, (d) Still the decisions have gone so far and are now so numerous in a sense opposed to this construction that it cannot properly be acted on. In the case of the Widow ofShanker Sahai v. Baja Kashi Pershad (e) the Judicial Committee refused to limit a widow's estate to a mere life interest, but in Brij Indur Bahadur Singh v. Eanee Janki Koer (/) their Lordships said : —
"It is unnecessary to determine whether immoveable proper- ty acquired by a woman by inheritance is 'woman's property.
(a) Mit. Ch. n. Sec. L 26.
(b) 9 M. I. A. 639, 613.
(c) Coleb. Dig. Bk. V. T. 420, Comm. IT.
(d) See also above, page 272, note (a), which makes it clear that property inherited by an unmarried woman passes on her death to her heirs as such, according to the express rale of the Mit&ksharfi for that case.
(e) L. S. 4 1. A. at p. 208. (/) L.R. SLA. 1.
iNTEODUonoN.] woman's propbety. 335
It has been decided that a woman cannot^ even according to the Mit4kshar&, alienate immoveable property inherited from her hnsband, and that after her death it descends to the heirs of her husband and not to her heirs, Musst, Thakoor Deyhee Y. Rai Baluk Ram, 11 M. I. A. 175/' (a) And still more
recently it has been pronounced (6) ''impossible to
construe this passage [oftheMitAkshar^] as conferring upon a woman taking by inheritance from a male a Stridhana estate transmissible to her- own heirs/'
While this has been the course of the decisions of the Privy Council in cases from Bengal and Madras, (c) another development by inference from the restrictions on a widow tas been arrived at in Bombay. The absolute estate of a woman is necessarily her Stridhana, (d) and as she can deal with it as she pleases (e) so it, if any thing, must be inherited as hers by her heirs. So also as to a sister according to the law of the Mayflkha and with the same consequences. (/) In Bengal and in Madras where the restrictions on women's inheritance are thought consistent with the doctrine of the Mitakahar4 the daughter succeeding as such has bnt the same limited interest as the widow and transmits no rights to her own heirs, {g) Jagann&tha recognizes it as incongruous that
(a) P. C, in Brij Indur Bahackir Svngh v. Banee Janki Koer, L. B. 6 I. A. at p. 15.
(b) MuUu Vaduganadha Tevar v. Dorasingha Tevar, L. R. 8 I. A. at pp. 108, 109.
(c) In Madras as well as in Bengal, contrary to the law as constm- ed in Bombay (above, p. 106), it is said that daughters once excluded as being married at the father's death sncceed in turn as the father's heirs. On the same principle after their death the father's heir should be sought again. See above, p. 106, notes (/) {g).
(d) See above, p. 297 ss.
(e) Venkairdma's case, I. L. R. 2 Mad. 333.
(/) Vindyak Anundrdo v. Laikshmibdi, 1 Bom. H. 0. R. at p. 124i. ig) See Chotay Lai v. Chtmoo Lai, L. R. 6 1. A. 15 ; MuUu Vadu- ganadha Tevar v. Dorasingha Tevar, L. R. 8 I. A. 99.
336 LAW OP INHEBITANOB. [bOOK I,
the daughter who is postponed as heir to the widow should have a larger power of alienation, (a) It did not occur to him that entrance to the &mily by birth or marriage made a difference. Bat lastly the Judicial Committee in Mutta Vaduganadha v. Dorasinga (b) say *' how impossible it is to construe the passage (Mit. Ch. 11. Sec. XI. para. 2) as conferring upon a woman (in that case a daughter) taking by inheritance from a male a Strldhana estate transmissible to her own heirs. The point is now completely covered by authority.^' Hence it seems a female heir must be regarded as taking in no case more than a life estate before thai of the other heirs of her own predecessor, and it appears that the distinction made in Bombay can hardly be maintained. In the great case of Katama Natchiar v. the Rajah of Shiva- gunga (c), the estate of a Zamindar was adjudged to belong to the daughter of the deceased owner in preference to his nephew, and it thus "passed from the line of Muttu Vaduga/' the nephew, after being held by him, his two sons, and his grandson in succession. The wife and daughter were pro- nounced the immediate heirs, though the heirs of the bst male owner still had an interest, according to the doctrine of reversion, (d) The daughter died, and then it was ad- judged that, not her children, but the eldest grandson of her father, through her half-sister, was entitled next in succession to the whole estate, it being impartible, (e)
Now in the case of Tuljdrdm Mordrji v. Mathuradas and others (/ ) it is said that all females entering a family by
{a) Coleb. Dig. Bk. V. T. 399, Com. (6) L. E. 8 I. A. at p. 108.
(c) 9 M. I. A. 539.
(d) See Periasami et al v. The R^resentatives of Sahgai Tevar, L. R. 6 I. A. 61.
(e) In the Multan district, it is observed, any property inherited by a woman passes on her death to her family of marriage and not of birth. Panj. Cust. Law, II. 272 ; see Muttu Vaduganadha Tevar r. Dorasinga, L. R. 8 I. A. 99.
(/) I. L. R. 5 Bom. 662,
mTEODUcrriON.] woman's pbopbbtt. 337
marriage and becoming heirs through that connexion are subject to the same restrictions as a widow of the propositus, that is, they take moveable property absolutely, but in im- moveable property only an estate durante viduitate. Other female heirs, as daughters, it is said take absolutely. This is an intelligible distinction, and the rule as to the daughters is generally followed in Bombay, (a) but the op- position is not one made by any HindA authority. In Vindyak Anundrdo v. Lakshmibai, {b) Arnould, J., says, ''there is no difference made by the texts in the quantum of estate taken by a mother and by a son/' The daughters succeeding take absolutely as the Stetris agreed in the DevacooverbaVs case, (c) and " as the daughters take absolutely so do the sisters/' (d) Bat ''from these authorities [the Mit^ksharft and the Mayftkha] it would appear that a widow takes an absolute in- terest in her husband's estate." (e) The Sastris referred to said she could expend even the immoveable property, though only for proper purposes. Hence Sir M. Sausse concluded to " a mere life use of the immoveable estate" and '* an nncontrolled power over the moveable estate" as descending to a widow. The limitation of the widow's estate is thus evolved from Katydyana's restriction as to her use of the property, (/) but without the widow's estate being made as in Bengal a type of all inheritance by females. (^)By the recent decision it is made a type of all female inheritance in the family of marriage but not of birth ; but if the restriction is to be construed as proposed, and applied to any others than
(o) See Bk. I. Ch. II. Sec. 7.
(b) 1B.H#C. R.atp.l21.
(c) lb. at p. 132.
(d) lb, at p. 124.
(e) 16. at p. 132.
(/) Vyav. May. Ch. IV. Sec. VIII. paras. 3, 4 ; Coleb. Dig. Bk. V. T. 399, 402 ; D&ya-Krama-Sangraha, Ch. I. Sec. II. paras. 3-6 ; above, pp. 301, 306.
ig) See above, p. 311 ; Colcb. Dig. Bk. V. T. 420. 43u
338 LAW OP INHERITANCE. [bOOK I.
the widoW; who alone is mezitioned by K&ty&yana as boand to economy of the estate taken from her husband, there seems to be no good reason why it should not be applied to all female heirs as well as to some of them. If the MiUkshaii doctrine is accepted all take a complete estate, especially the widow who, it is elaborately proved, takes the whole estate of her deceased hnsband. (a) If the yiews of other lawyers prevail no woman takes an absolute estate bj in* heritance. An instance of the former doctrine already given shows well how it was understood by the principal commentators on the Mitfiikshara. The grandmother enters the family by marriage and the property inherited by her is, as we have seen, regarded as Stridhana, or maternal estate, devolving on her daughters and daughters' sons as heirs in priority to her sons, {h) A daughter may thus inherit while many male agnates of the family remain, whOj^ by her taking an absolute estate are deprived of their succession, (c)
(a) Mifc. Chap. II. Sec. I. pwras. 3-39.
(6) Mit. Chap. II. Sec. IV. para. 2, note.
(c) So the allotment retained for the wife by her hnsband in a partition goes to her daughters as Strtdhana ; Mit. Ch. I. Sec. VI- para. 2. It thus passes away to their heirs, and leaves their family of birth, except in the particular case of their dying before their mar- riage is completed. In that case their brothers of the full blood alone take as heirs ; the property does not blend again with the general fiunily estate. Mit. Ch. II. Sec. XI. para. 30.
u.i.ci.i,8.1,(i.l.] SONS AND GRANDSONS. 339
BOOK I.
INHERITANCE.
CHAPTER I.
HEIRS TO A MEMBER OP AN UNDIVIDED FAMILY.
SECTION 1.— SONS AND GRANDSONS.
Q. 1.— A min of the Sfidra caste died. He has the fol- lowing relations : — 1 son of the deceased^s eldest son, 3 younger sons, 2 brothers, and 1 cousin. The deceased re- ceived a cash allowance from Government on account of certain '^ Hakka* and Ldjima (a) rights. It is an old ances- tral property. How should the certificate of heirship be granted to each of them ? Describe his share. If it is not an ancestral property, how should the share of each be described in his certificate f
il. — ^If the property was acquired by the forefathers of the deceased, and if it has never been divided before, it should be first divided into two shares, the one to be consi- dered as belonging to the deceased's father and the other to the cousin's father. Then the share of the deceased's father should be sub-divided into three shares, one to be allotted to each of the three brothers including the de- ceased. The deceased's own share, which is ^ of J, should be divided again into four shares, one to be assigned to his grandson and three to his sons. — Tanna^ \6th April, 1852.
(a) Lav&jiin&.
340 HEIBS IN UNDIVIDED FAMILY. [bi.i,ch.i^.1^1.
Atjthomtibs.— (1) Mit. Vyav. f. 60, p. 1, 1. 1 ; (2) f. 50, p. 1, L 7, {$$6 Auth. 3) ; (3) f. 48, p. 2, 1. 6 :—
" Whatever else is acquired by the co-parcener himself withont de- triment to the father's estate, as a present from a friend, or a gift at naptials, does not appertain to the co-heirs (Colebrooke, Mit. p. 268, Stokes, H. L. B. 384). It deyolves as though there had been a partition." (a).
(4) Mit. Vyav. f. 44, p. 2, 1. 13 {see Chap. H. Sec. 4, Q. 1.) Ebkakks. — 1. The answer applies equally to the higher castes. Bhalchandra 6ftstri said the son of the wife first married was to be regarded as the elder, but this is not warranted by the Mit&k. or the Vayav. May. See Steele, L. C. 40.
2. For details regarding " indivisible or separate property," tee Partition, Book II.
3. In case the deceased had alone acquired the property in ques- tion, it goes in equal shares to his sons and grandson.
4. An nnseparated son excludes separated ones. See Bajee Bapoojee v. Venoohdi, (h)
5. A son bom in wedlock is held legitimate though begotten before it. (c)
6. A son may relinquish his share in the common estate for money. Ho then takes the place of a separated son. {d)
7. An elder son by a younger wife succeeds to an impartible estate in preference to a younger son by an elder wife, (e)
8. A joint trade is joint family property (/ ). See Book II. I»tbo-
DUCTION.
9. A joint trade loan is a charge on joint family property, ig)
(a) See Muesi. Phoolba$ Koonwar v. LaHa Jogesher Sahoy^ L. R. 4 I. A. at p. 19.
(6) S. A. No. 282 of 1871, Bom. H. 0. P. J. P. for 1872, No. 41.
(c) Collector of Triehinopoly v. LaJchamani, L. R. 1 1. A. at p. 293.
((£) Balkrishna Trimbak v. Savitrihai, I. L. R. 3 Bom. 54. See below, Chap. II. § 1, Q. 6.
(e) Padda Ramappa v. Bangari Sherama, I. L. R. 2 Mad. 286.
(/) Sdmalbhai v. Someshwaret al, I. L. R. 5 Bom. 38.
(g) Sheoji Devkarn v. Kasturibai, Bom. H. C P. J. F. for 1880, p. 255 ; Bemola Dossee v. Mohun Dossee, I. L. R. 6 Cal. 792. See Coleb- Dig. Bk. I. Oh. V. T. 182, 185, 186.
iK.i/rH.i,8.2,(^3.] BEMOTE HEIBS. S4i\
SECTION 2.— OTHEE MEMBEES OF AN UNDIVIDED FAMILY. Q, 1. — A man got Iiis son married and spent a good deal of money on his edacation. The son afterwards emigrated^ and was for a long time in service in another country^ where lie acquired considerable property and died. Who will be liis heir, his father or his wife T
A, — Whatever he may have given to his wife ont of affec- tion, or whatever may be her strldhana, belongs to her. All the rest of the son^s property goes to his father. Ahmednugguvy September 29th, 1854. AuTHORrriES. — (1) Vyavah&ra Maytlkha, p. 163, 1. 2 :—
"A wife, a son, and a slave are (in general) incapable of property, the wealth which they may earn is (regularly) acquired for the man to whom they belong." (Borradaile, p. 121, Stokes, H. L. B. 100.)
(2) Vyav. May. p. 151, 1. 1 ; (3) Vtramitrodaya, f. 221, p. 1, 1. 10.
Remark. — ^As the son was instructed at the father's expense, the property gained by him cannot be separate as against the father, unless acquired by means not referable to the family estate. See Book II. " Pboperty sblp- acquired. '*
Q. 2. — A father and his son were undivided. The latter died, and left a daughter and a wife. Will these be his heirs, or his father, or his brother, or his mother ?
A, — All have an equal right to the estate of the deceased. But the ornaments of the wife belong to her alone, Bharwavy October 10th, 1859.
AuTHORiriES.— (1) Mit. Vyav. f . 55, p. 2,1. 1 ; (2) Vyav. May. f . 155, p. 4.
Remark. — All the deceased's property, as far as it is not separate property (avibh&jyam), will go to the father, and be divided between him and his surriving son on partition. See Question 1.
Q. 3. — If there is an ancestral Inam in the possession of live brothers, and some of them die without issue, will the survivors inherit their shares ?
A, — ^Yes, — Rutnagherry, Septemler I5th, 1846.
342 HEIRS IN UNDIVIDED FAMILY. [Bi.i,CH.i^2,qi.
Authority. —Vyav. May. f. 136, 1. 2 : —
" Among brothers, if any one die without issue, or enter a religions order, let the rest of the brethren divide his wealth, excsept the wife's separate property." (Borradaile, p. 101, Stokes, H. L. B. p. 86.
Q. 4. — Who will be the heir to a deceased brother ?
A, — If the brother was undivided^ his brothers will inherit his property.
But if he was divided, his wife, etc., will be his heir.
Brothers who have divided and afterwards again lived together are called " re- united." If a re-united brother die his re-united coparcener will inherit his estate. Poona, October 24^A, 1845.
Authorities. — (1») Vyav. May. p. 136, 1. 2, {see Chap. I. Sec. 2, Q. 3); (2*) Mit. Vyav. f. 55, p. 2, 1. 1 :—
" The wife and the daughters also, both parents, brothers likewise, and their Bons, gentiles, cognates, a pupil and a fellow student ; on failure of the first among these, the next in order is indeed the heir to the estate of one who departed for heaven having no male issae. This rule extends to all (persons and) classes." (Colebrooke, Mil. p. 324, Stokes, H. L. B. 427.)
(3») Vyav. May. p. 144, 1. 8 :—
" T&jSavalkya enumerates the order of those entitled to succeed to the wealth of one re-united ; as of a re-united (co-heir) the re-united (co-heir), so of the uterine brother the uterine brother.** (Borradaile, p. 112 ; Stokes, H. L. B. p. 93.)
Q. 5 — A man died and left an ancestral Watan. Will hifl widow or his younger brother inherit it ?
A. — If the property is ancestral, and the brothers were undivided, it will belong to the younger brother, thongh it may have been entered in the records of Government in the name of the eldest only. The wife has no right to it.(a) Broach, May I4th, 1855.
(a) A vatan cannot be enjoyed by a female while males of the hmj claim it.— Anpoomabm v. Janrow, S. D. A. R. 1847, p. 74, following
tt.i,CH.i,8.2,q.6.] KEMOTE HBIBS. 343
AuTHOKiTiES.— (1) Mifc. Vyav. f. 60, p. 1, 1. 7 ; (2») Vyav. May. p. 136, 1. 2. {See Oh. I. Sec. 2, Q. 3.)
Q. 6. — Two brothers, Bhai and Bh&idasa, possessed a Tillage. They gave to a certain Bhikdri E&madatta four bighas of land for himself and his heirs. Rdma had four sons. One of these sons died, and after him his son, leaving a widow. The latter claims one bigha as the share of her husband. Upon inquiry it appears that the land had not been divided. Is her claim under these circumstances admissible ?
A, — The claim is not admissible since the land was nndivided. The other three sons of Bhikari Rslmadatta inherit their brother's share. — Broach^ May 18th, 1855.
AuTHORrriEs.— (1) Mit. Vyav. f. 46, p. 1, 1. 1 ; (2*) Yyav. May. p. 136, 1. 2. {See Chap. I. Sec. 2, Q. 3.)
Bemarks. — The brothers deceased were held to be represented by their sons in a joint Hindtl &inily in Bkagwan Qoolabchund v. Kripa"
an interpretation of 1832 on Sec. 20 of Beg. XVI. of 1827. But the reason there given ia now no longer applicable. A female may succeed, Ch. IV. B., Sec. 1, Q. 12 ; Bdi Suraj v. Government of Bombay et aZ, and Bdpubhdi v. Bdi Suraj et al, 8 Bom. H. C. R. 83 A. C. J. ; Bdi Jetha v. Harthhai, S. A. No. 304 of 1871 (Bom. H. C. P. J. F. for 1872, No. 38) ; The Government of Bombay v. Ddmodhar Per- nmandds, 5 Bom. H. C. R. 202 A. 0. J. ; (comp. Keval Kuher v. Th^ Talukddri Settlement Offic&r, I. L. R. 1 Bom. 586); 8ayi Kwn Ndru Povm V. Shrinivdsrao Pandit, Bom. H. C. P. J. F. for 1881 p. 270. subject to the provisions of the Vatandars' Act, (Bom. Act 3 of 1874). There is not a general presumption in fe-vour of the impartibility of Vatan estates. He who alleges the impartibility must prove it. Adreshappa v. Gwnrushidappa, L. R. 7 1. A. 162, infra, Bk. II. Introd. § 5 C. As to the succession generally to inams and vatans, see Chap, n., Sec. 6 A, Q. 8, Remark ; and as to claims to inclusion amongst the recognized vatandars, see Gurushidagavda v. Budragavdati et al. (I. L. R. 1 Bom. 531.) In Madras it is said that a woman cannot hold the office of Kamam except nominally. Ve^ikatrainama v. ^amanujaadmi, I. L. R. 2 Mad 312. She may perhaps appoint a deputy, as in Bombay, under Sec. 51 of the Act above referred to.
344 HEIRS IN UNDIVIDED FAMILY. [BK.i,CH.i;8.2,qJ.
ram Anundran ; (a) Debi Pershdd v. Thdkur Dial ; (6) Bhimvi Dou i, Ckoonee LaU (c).
In Moro Vuhvandth v. Oanesh Vithal (d) it was held that the repre- Bentation descends without limit when there is not an interval of more than three generations between the deceased and his surviving descendant.
Q. 7. — Three brothers divided their father's property and lived apart. But one room was left undivided, and given to their mother as a dwelling place. One of the bro- thers died, leaving a widow. Then the mother of the bro- thers died. The widow claims a third of the room as her husband's share. Has she a right to it ? She has given it as Krishnarpana to her daughter's son. Has she a right to do so ?
-4. — The widow has no right to any part of the undivided room. — Broach, March 17th, 1857.
Authorities.— '(1) Mit. Vyav. f. 47, p. 2, 1. 13 ; (2*) Vyav. May. p. 136, 1. 2. (See Chap. I. Sec. 2, Q. 3.)
Bemark. — As to residence in the family dwelling, eeo above, p. 252, and Book H. Introduction, " Propbrty naturally indivisible." See also Q. 9.
Q. 8. — Two brothers lived apart, and each managed his own affairs. The elder of them died without male issue, leaving a widow only. Can she claim a share of the family Watanf
A. — ^A widow without male issue has no right to demand a share of any Watan, Vritti, or hereditary oflSces which
(a) 2 Borr. 29. (h) I. L. R. 1 AU. 106. (c) I. L. R. 2 Calc. 379.
id) 10 Bom. H. C. R. 444. So in the Panj&b ; see Tapper, V^j^ Customary Law, vol. II. p. 141.
M.i,CH.i,s.2,q.9.] REMOTE HEIRS. 345
were acqaired by ancestors^ and which were not previously divided. — Ahmedm^uggwr^ August 1th, 1854 (a).
Remabk.— A Hindii widow has no estate in the joint family pro- perty, [b)
AuTHOBiTiES. — (1 and 2*) Vyav. May. p. 136, 1. 6 and 1. 2 {aee Chap. L Sec. 2, Q. 6).
Q. 9. — Four brothers effected a partition and lived separate from each other. As usual^ a house, some ground^ and other immoveable property remained undivided. Two of these brothers died. The question is whether or not the share of the immoveable property should be made over to the widows or to the surviving two brothers.
A. — The widows of the deceased brothers cannot claim the whole of the shares of their husbands, but they should be provided with a suitable residence. The rest of the im- moveable property will fall to the two surviving brothers. Ahmedmtggurj January 5th, 1849.
AuTHORrriES.— (1) Vyav. May. p. 136, 1. 2 (see Chap. I. Sec. 2, Q. 3) ; (2) Vyav. May. p. 134, 1. 4, 6, and 7 ; (3) Mit. Vyav. *f. 49, p. 1, 1. 10.
Remark.— The 6&stri means that to the portion left undivided the opdinaiy rules governing the inheritance of undivided property must be applied, and that these will exclude the widow, saving her right to residence.
That right cannot be extinguished even by a sale of the house, (c)
2. When two united brothers successively die, each leaving a widow and no children, the widow of the last deceased brother takes
(a) The right to a vritti (upadhy&ya) being established in a family a fresh cause of action arises on each infrmgement of the right by a rival family. Divdkar Vithal Joshi v. Ha/rbhat bin Mahddevbhat, Bom. H. C. P. J. F. for 1881, p. 106.
(b) Lallubhai v. Rcwal Bayuji, Bom. H. C. P. J. for 1880, page 243; Antf^ Raghunath v. Pandttrtrng^V, J. 1879, p. 478.
(c) See Mangtda Debi v. Dmanath Bose, 4 Ben. L. B. 72 O. 0. J. ; Talemand 8mgh v. Rukmina, I. L. B. 3 All. 358; Parvaii Kom Bal- apa V. Kisaming Un Jawing, Bom. H. C. P. J. P. for 1882, p. 183.
44h
346 HfilBS IN UNDIVIDED FAMILY. [BK.i,cH.i,8.2,q.lO.
the propeorty, the widow of the first deceased being entitled only to maintenance, (a) For the share of an undivided coparcener, who leaves no issue, goes to his undivided coparceners, whether the pro- perty is ancestral or acquired by the coparceners as joint estate, [b)
Q. 10. — A man had three sons. One of them died with- out issae. He and his two brothers had net divided their ancestral property. Although the deceased had left a widow, the certificate of heirship was given to his two bro- thers- They subsequently died. One of them has left a widow and two daughters. The other has left three daughters. The property of the first deceased brother is in the possession of the widow, who is the mother of two daughters. It will be observed that one brother who had not taken his share from his two brothers died, and that his two brothers survived him. Now his widow claims the share of her husband from the heirs of the two brothers, who possess the ancestral property. The question is whether she can claim a share, or a maintenance only.
The widow of the first deceased brother wishes to take the share due to her husband, but it is to be noticed that the two brothers who died afterwards have left some daughters to be married. According to the custom of the caste, a large ex- pense is required for the marriages and subsequent cere- monies. The widow who demands the share of the common property has no children. Will this circumstance cause any obstacle to her claim ?
A. — The husband of the widow appears to have died without having previously divided his property. He has left no sons. His widow cannot therefore claim any share from the heirs of the two brothers who died afterwards. They should only give her maintenance (c). 8urat, March 17 th, 1858.
(a) Mu88t. Surajmookhi Koonwar v. Mvsst, Bhagavati Koonwar, Privy Council, 8th Feb. 1881.
(b) Rddhdhdi V. Ndndrdv, I. L. R. 3 Bom. 151.
(c) The custom of the City of London and of other places reBetres
ii.i,CH.i,8.2,q.l2.] BEMOTB HEIttS. 347
AuTHORiTiBS.— (1) Mifc. Vyav. f. 65, p. 2, 1. 10 (see Auth. 3) ; (2) Hit. Vyav. f. 48, p. 1, 1. 9 ; (3*) Yyav. May. p. 136, 1. 2 (see Chap. I. Sec. 2, Q. 3).
Q. 11. — A man died and his widow has filed an action against her brother-in-law for the recovery of certain pro- perty belonging to her deceased husband. The brother- inJaw had lived apart from his deceased brother for about 25 years. A division of the family property had not, how- ever, taken place. Can the widow claim a share ?
il.— The widow cannot claim a share of that which may be undivided and ancestral property; but if there is any which may have been acquired by her husband without making use of the property of his ancestors, she can claim it from her brother-in-law.
AcTHoRiTiBS.— (1) Yyav. May. p. 136, 1. 4 :—
"Bat if her hasband have departed for heaven the wife obtains food and raiment ; or (tu) if unseparated, she will receive a share of the wealth as long as she lives." (b) (Borradaile, p. 102 ; Stokes, H, L. B.85).
(2) Vyav. May. p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 3),
Q. 12. — Two brothers of the Kanoji caste were undivided. One of them died, leaving a widow. The other brother does not maintain her, nor does he assign to her any pro- perty to live upon. Who has, under the circumstances,
the chief room in the fiwnily dwelling as the widow's chamber. See Elt. Ten. of Kent. pp. 42, 173 ; and below, Ch. H. Sec. 7, Remarks.
{b) Note —The words ** if unseparated " {avihhakta) belong to both halves of the sentence, and the translation should run thus : —
** In an undivided family, if her husband have departed for heaven the wife obtains food and raiment, or she will, etc. " In the explana- tion, which in the Maytikha follows this text, the word avarudhfi, is '"^ngly translated by "a woman set apart." It means *'a concu- bine."
348 HEIRS IN UNDIVIDED FAMILY. [bk.i,cb.i,8.2.q.18.
the right to collect the money due to the deceased, the wife or the brother ?
A. — The brothers were undivided. The brother has therefore the right to collect debts due to the deceased. The widow of the latter has a claim to maintenance only. But she must stay with her brother-in-law it she has no good reason to show why such an arrangement is impossible. — Ahmednuggur, March 15th, 1849.
Authority.— Vyav. May f. 136, p. 2, Borr. 101 ; Stokes, H. L. B. 85 (see Chap. I. Sec. 2, Q. 3). Bemaml. — See above. Introduction, Section on Maintenakce, p. 254
Q. 13. — 1. There are three brothers, whose property is undivided. It consists of an ofiBce of priest called the " Tajamana Vritti/' a house, and some other things. On the death of one of these brothers, a question has arisen whether the surviving brothers, or the son of the deceased brother's sister, are the heirs ?
2. Suppose the property of the brothers was divided, and they themselves separated, who would be the heir in this case ?
3. Will the son of a cousin, or the son of a uterine sister be entitled to inherit the ancestral oj£ce of a priest held by a deceased in an undivided state ?
4. Supposing the above-mentioned property was dirided, which of the two relatives above-named would be entitled to inherit it ?
A, — 1. If one of the three brothers, whose property was undivided, died without leaving either a son or a grandson, his uterine brothers must be considered the heirs.
2. In the case of a family whose property is divided, the order of heirs laid down in the Sl^tra is as follows :— The widow, the daughter, the daughter's son, the parents, and the uterine brothers. In the absence of each of these, the next succeeding becomes the heir.
[
u.i,CH.i, 8.2,0.15.] REMOTE HEIRS. 349
3. When the office of priest is undivided, and when a co-sharer dies, his cousin^s son will be entitled to inherit the deceased^s share, provided the following kinsmen are not in existence : — The uterine brother, nephew, parents, half- brother, sons of half-brother, uncle, sons of uncle, and widow.
4. When the property is that of a deceased person di- vided in interest, his sister^s son inherits his share ; as long as the sister's son is alive the cousin's sdn cannot succeed.
Surat, October 18th, 1845.
AuTHOEiTiES. — (I*) Vyav. May. p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 3; (2*) Mit. Vyav. f. 55. p. 2, 1. 1 {see Chap. 1. Sec. 2, Q. 4).
Remarks. — Ad. 3. The undivided coparceners alone inherit the deceased's share. (Auth. 1.)
Ad. 4. The cousin's son inherits the deceased's property, in prefer- ence to the sister's son, since he is a " Gotraja Sapinda," connected by funeral oblations with, and a member of, the same family as the de- ceased, whilst the sister's son is only a Bhinnagotra Sapinda. (Auth. 2.) See also Introductory Note to Chap. II. Sec. 15— § ft. The S&stri seems to Jiave been steeping his mind in Bengal law. See H. H- Wilson's Works, vol. V. p. 14.
Q. 14. — There were four brothers who divided their move- able property and left the immoveable undivided. The immoveable property consisted of some land given to them in order to keep up a lamp in a temple. One of the four sons died. He left a widowed daughter. Can she obtain her fether's share ?
-4. — She cannot obtain it. It goes to the other undivided relations. — Butnagherry, January 7th, 1 853.
Authorities.— (1) Mit. Vyav. f . 55, p. 2, 1. 1 ; (2) f . 46, p. 2, 1. 14 ; (3*) Mit. Vyav. f. 61, p. 1, 1. 9 (see Chap. I. Sec. 2, Q. 17) ; (4*) Vyav. May. p. 136, 1. 2 (see Chap. I. Sec. 2, Q. 3).
Rehabk. — ^The S&stri has not distingoished between the divided and the undivided property.
Q. 15. — There were three brothers. Two lived united and one separate. The one of the undivided brothers had a
350 HEIRS IN UNDIVIDED FAMILY. [BK.i,cH.i,8,2,q.I7.
son, the other a daughter. The latter lived in the house of her husband. Both the brothers died. Who will inherit the second brother's property ?
A. — ^The first brother's son inherits his uncle's property. But if anything had been promised by the second of the brothers to his daughter, it must be given to her. Ahmednuggur, November 29th, 1845.
Authorities.— (1*) Vyav. May. p. 136, 1. 2 {eee Chap. I. Sec. 2, Q. 3) ; (2) Mit. Vyav. f. 51, p. 1, 1. 9 {see Chap. I. Sec. 2, Q. 17).
Bemark. — The property promised must not have been dispropor- tionately great. Vyav. May. Chap. IV. Sec. X. pi. 5, 6 ; above, p. 208.
Q. 16. — ^Three brothers died. One of them left a grand- son, the second a son, the third a son's daughter. Will the latter inherit her grandfather's property ?
A. — As long as males are living in the family, the son's daughter has no right to her grandfather's share. Poona, September' lOtk, 1852.
Authorities.— (1) Vyav. May. p. 134, 1. 4 ; (2*) p. 136, I 2 {see Chap. I. Sec. 2, Q. 3) ; (3*) Mit. Vyav. f . 51. p. 1, 1. 9 {see Chap. L Sec. 2, Q. 17.)
Q. 17. — A man died and left a daughter. His brother, who was united with him in interests, adopted a son. Will the latter or the daughter inherit the property of the deceased ?
A, — The deceased and his brother were undivided. Con- sequently the latter^s adopted son will inherit deceased's property. — Dharwar, September 29th, 1849.
Authorities.— (1) Vyav. May. p. 134, 1. 4 ; (2*) p. 136, 1. 2 (see Chap. I. Sec. 2, Q. 3) ; (3*) Mib. Vyav. f. 51, p. 1, 1. 9 :-
** In regard to unmarried sisters, the author states a different rule, giving them as an allotment the fourth part of a brother's ovn share." (Colebrooke, Mit. p. 286; Stokes, H. L. B. 398)
BK.i,CH 1,8^,(1.20.] REMOTE HEIES. 351
Eemakk.— The position of all daughters of undivided coparceners is the same as that of sisters. Nephews represent their fathers. See cases referred to below, (a)
Q. 18. — Two persons, related as uncle and nephew, held an hereditary Watan. The nephew died, and the question is whether the widow of the nephew or the uncle should come in the place of the nephew as his heir ?
i.— If the uncle and his nephew were separated members of the family, the widow of the nephew will inherit his share. If the property was not divided, and if it was held as a joint property of the uncle and the nephew, the uncle should come in the place of the deceased nephew. Broach, May 14th, 1855.
Authorities.— (1) Mit. Vyav. f.55, p. 2,1. 1 («e« Chap. I. Sec. 2, Q. 4) ; (2) f. 50, p. 1, 1. 7 ; (3*) Vyav. May. p. 136, 1. 4 {see Chap. I. Sec.2, Q. 11.)
Q. 19. — A man^s widow and his cousin live together as an andivided family. The widow's late husband had lent money to other people, and the question is who has the right to recover it ?
A, — ^As the deceased and his cousin lived together, the cousin has the right to recover the money due to the deceased. The widow will be entitled to a maintenance. Butnagherry, July ISth, 1847.
Authority.— Vyav. May. p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 3).
Remakk.— The cousin who was united with the deceased, and not the widow, inherits the deceased's share.
Q. 20. — A man died. His first cousin performed his funeral ceremonies. Will he or deceased's half-brother in- herit the estate ?
(a) Bhagwan Qoolahchimd v. Krvparam Anundram et al, 2 Borr. R. 29; Nurhheram Bhaeedas v. Krvparam Anwidram, ibid, 31. Comp. p. 106, note {g) above.
352 HEIRS IN UNDIVIDED FAMILY. [M.i,CH.i^,<i.a.
A. — The first cousin was separate from the deceased whilst the half-brother lived with him as a member of a united family. Consequently the half-brother alone inherits. Tanna, August I2th, 1847.
Authorities.— (1) Mit. Vyav. f. 66, p. 2, 1. 1; (2*) Vyav. May. p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 3).
Eemaak. — At 2 Macn. H. L. 66 is an answer to the effect that where a man dies united with a whole and a half-brother, these succeed together to the ezclosion of deceased's widow.
Q. 21. — A man died, leaving a daughter. Will the latter or a second cousin with whom the deceased had lived united in interests, inherit the deceased's estate ?
A. — The second cousin inherits the deceased's estate; the daughter will receive only what her father may have given to her. — Ahmedvuggur, January 8th, 1851.
Authorities. — (1) Vyav. May. p. 136, 1. 2 (see Chap. I. Sec. 2, Q. 3) ; (2) Vyav. May. p. 140, 1. 1; (3*) Mit. Vyav. f. 61, p. 1, I 7 {see Chap. II. Sec. 1, Q. 2).
Q. 22. — A woman has a daughter. Her husband left the country and was not heard of for many years. She re- ceives the proceeds of her share of the estate. The woman and her husband have been living separate from their cousin for about 75 years. The immoveable property has not been divided. The woman has sued her cousin for a division of the immoveable property. The cousin states that the woman should be satisfied only with a share of the proceeds of the property, and that the share would be con- tinued to her during her lifetime. He further states that he would divide the property only on condition of her agreeing never to transfer it in any way. The question is how the case should be decided ?
A. — As the woman has received her share of the proceeds separately for many years, and as she has a daughter, she has a right to move for the partition of the immoveable pro-
ii.i,CH.i,8.2,q.24.] BEMOTE HEIRS. 353
perty. The objection of her cousin founded on the appre- hension of the transfer of the property is not valid. The woman has a right to transfer her property whenever she may find it necessary to do so.
Ahmfidnuggur, November 25th, 1848.
Authorities.— (1 and 2) Vyav. May. p. 134, 1. 4 and 6 ; (3) p. 136, 1. 2 (see Chap. I. Sec. 2, Q. 3.)
Bem^sk. — As the property is undivided, the widow has no right to it. The Sastri seems to have considered separate enjoyment of the proceeds a proof of partition. As to this see Bk. II. In trod. See. 4 D. The right which the Sdstri ascribes to the woman to alien the property is not generally recognized. {See above, pp. 297 ss.)
Q 23. — A woman has instituted a suit against her mother- in-law, and four cousins of her father-in-law, for the recovery of the share of her father-in-law of the ancestral property of the family. Is her claim tenable ?
A, — The woman cannot claim any share of the property. She can only claim a maintenance from the defendants.
Ahmednuggur, July 2l8t, 1836.
Authorities.— (1) Vyav. May. p. 136, 1. 2 (see Chap. I. Sec. 2, Q.3); (2) f. 136,1. 4r. = Mit. Vyav. p. 55, f. 2, 1. 1 {see Chap. I. Sec. 2, Q.4).
Q. 24. — Certain members of a family have a right to a house which is their undivided and ancestral property. A son of one of the members died, and his widow claims the share of her husband, the other members of the family, namely, grandsons of her brother-in-law and sons of her father-in- law's brother, are alive. Can the widow claim the share ?
A— The widow of a man who dies while the family of which he is a member is still united in interests^ cannot claim a share. She can only claim a maintenance.
Surai, 1845.
45h
354 HEIBS IN UNDIVIDED FAMILY. [bk.i,ch.iM^3»-
Authorities.— (!•) Vyav. May. p. 136 1. 2 {see Chap. I. Sec. 2, Q. 3); (2*) p. 136, 1. 4. = Mit. Vyav. f. 55, p. 2, 1. 1 [see Chap. I. Sec. 2, Q. 4).
Q. 25. — ^A paternal grand-aunt and her grand-ne lived together as an undivided family. They hold Yardl and Kulkarni Watans. Can the paternal grand-aunt clain) a sliare of the Watans, or only a maintenance from their proceeds ?
"A. — She can claim a maintenance only, and provided she sustains her good character and lives with her grand-nephew. Ahmednuggur, April SOth, 1847.
Authorities.— (1) Vyav. May. p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 8) ; (2) p. 136, 1. 4 = Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4); (3) Vyav. May. p. 129, 1. 2 and 4; (4) p. 134, 1. 4 and 6; (5) p. 137, 1. 7; (6) Mit. Achar. f. 12, p. 1, 1. 4 and 6; (7) Mit. Vyar. f. 16, p. 1,1. 6; (8)f. 69,p. 1,1. 1.
Remark. — See p. 254 supra, and Chap. VI. Sec. 3 c» Q. 6, below.
Q, 26. — Two brothers, A and B, obtained a house as security for a debt. A took his wife^s sister's son into his house, and brought him up as his own son. The house was in the joint possession of this latter person and of the son of B, and after B'a son's death in his possession jointly with the sons of the deceased B^s grandson. But the wives of these two began to quarrel, and ^'s grandson sued .4's sister's son for the possession of the whole house. The latter has no certificate to show that he was formally adopted. He had merely possession of the house for 20 or 25 years. Is B's grandson's claim admissible under these circumstances, or not ?
A, — A's wife's sister's son had not been formally adopted, and can therefore not be considered as A^a son. The claim of B's grandson is therefore admissible. Ahmednnggury November Ist, 1849.
Authorities.— (1) Mit. Vyav. f. 53, p. 2, 1. 6 ; (2^ f. 61, p. 1, 1. 3; (8) f. 50, p. 1, 1. 1; (4») f. 44, p. 2, 1. 14 {see Chap. 11. Sec. 4. Q. 1);(W Vyav.May. p. 102, 1. 4; (6) p. 110, 1. 6; (7) p. 100, 1. 1; (8) p. 142, 1 8-
K.i,CB.ii,8.1,q.l.] HBIBS IN DIVIDED FAMILY. 856
CHAPTER II. HEIRS OF A SEPARATED PERSON.
SECTION 1.— SON BY BIRTH, LEGITIMATE.
Q. 1. — If a man separates from his father and brothers, and acquires property after the separation, who will be his heir ? If his son be his heir, should his mother be consi- dered the son's gnardian during his minority ?
4« — His son will be his heir, and his widow, during hit son's minority, will be his son's guardian! Poona, June 2nd, 1845. Authorities.— (1*) Manu IX. 185 :—
" Not brothers, nor parents, but sons (if liying and their male isnie) are heirs to the deceased."
'' The production of children, the nurture of them, when produced, ftndthe daily superintendence of domestic affairs are peculiar to the
wife.'*
BsMAaKS.— 1. The son would of course not be separated from hit hther, by the separation of the father from his father and brothers. A new joint family would forthwith commence consisting of the father and son. In every case of partition between a father and sons, a ion bom after partition is sole heir to the shares reserved for the &ther and the mother, (a)
Sir n. Maine explains the law of Borough -English (b) by supposing it originated in a preference given to the youngest unemancipated son who remained under the patria potestas over those who were pre- sumably separated. Under the Hindd law the preference arises from the nnion of interests and sacrifices. It extends to a son remaining joint with his father and to a brother remaining united with another in a general partition, as may be seen in the preceding chapter.
2. Under the Mithila law the mother as a guardian is preferable to the father, (c)
(o) Mit&k8har&, Chap. I. Sec. YI. para. 1. ss.
(h) Early History of Institutions, pp. 222, 223.
(c) Juisoda Kooer v. Lallah Neitya LaU, I. L. R. 5 Cal. 43,
356 HEIRS IN DIVIDED FAMILY. [BK.i,CH.u^l,q^
Q. 2. — Should the sons, who are minors, or the widow, or the brothers of a deceased SAdra, be considered his heirs T
-4. — All of them have a right to the property of the de- ceased, but the sons are his heirs. — Poona, June 23rd, 1845.
AuTHORrriES.— (1*) Manu IX. 185 {see Chap. II. Sec. I. Q. 1); (2*) Mit. Vyar. f. 69, p. 1, 1. 1 :—
'• Manu has declared that aged parents, a faithful wife, and an infant son must be maintained, even by performing a hondred improper actions."
(3*) Mit. Vyav. f 51, p. 1, 1. 7 .—
" Of heirs dividing after the death of the father let the mother take an equal share. " (Cdlebrooke, Mit. p. 286 ; Stokes H. L. B. 397.)
Eemark.— The sons are their father's heirs, and the widow it entitled to maintenance, or, if the sons divide, to one full share of the property, provided she had received no Stridhana. (See Book II.. Introd., and above, pp. 68, 163.)
Q, 3. — A man of the Mah^r caste expelled his wife from his house. His son went out with her. The husband after- wards died, when a son of his relatives was nominated by his friends as the son of the deceased, and was presented with a turban. Will he be his heir?
-4.— The son of the deceased will be his heir and not the person nominated.
Authorities.— (1*) Dattaka Mtmiims&, p. 1, 1. 3 :—
" In regard to this matter Atri says : Only a man who has no son ought to procure a substitute for a son." (2«) Manu IX. 185 (see Chap. II., Sec. 1, Q. 1).
Q. 4.— A Kunbl brought up a son of another Kunbf, and transferred to him his immoveable property. It accord- ingly passed into the possession of the foster-son. A son was afterwards born to the Kunbl. This son and the foster- son lived separate from each other for many years. The son has now sued the f oster-son for the recovery of the immove- able property given to him by the Kunbi. Can he do so ? and within what time should the suit be brought ? Can the
ii.i,CH.ii,B.l,Q,4.] SON BY BIBTH, LBGITIMATB. 357
possession of the property be disturbed after the lapse of 80 years ? If the father and his foster-son should have improv- ed, and taken care with trouble and expense of the immove- able property in question, cannot the foster-son have some claim to it ?
i. — A son is entitled to three-fourths of the property which his father may have transferred to his adopted son before the birth of his son. The adopted son will only be entitled to one-fourth, provided his adoption has been performed with the due ceremonies and sacrifices by the adoptive father. The S&stra does not lay down any rule in regard to the limitation of time within which a suit for a share of property should be brought. It is however laid down that when a man has received the income of any immoveable property for 20 years, and of any moveable property for 10 years, without any objection or demand from the owner, he cannot be obliged to pay the income, but the right to the immoveable property is never lost.
The foster-son, mentioned in the question, should bo allowed to hold such things as he may have received from his foster-father as tokens of his aflFection, provided they are becoming his rank in society, and not unjustly oppressive to the son. If the foster-son was born of his father's slave woman, he would be entitled to one-half of the property which is allotted to his son.
Authorities.— (1) Datt. Mim. f. 1, p. 1, 1. 1, 3, and 11 ; (2) Vyav. May. p. 102, 1. 4 :—
" He is called a son given (Dattrima) whom his father or mother affectionately gives as a son, being alike (by class) and in a time of distress, confirming the gift with water.*' (Borradaile, p. 66 ; Stokes, H.L. B. 58.)
(3) Vyar. May. p. 110, 1. 6 ; (4) p. 107, 1. 6 ; (5) p. 112, 1. 3 ; (6) p. 28, 1. 5 ; (7) Mit. Vyav. f. 11, p 2, 1. 11 ; (8) f. 61, p. 1, 1. 3 ; (9) f. 65, p. 1, 1. 11 ; (10) Manu IX. 186 {see Chap. II. Sec. 1, Q. 1).
Remark.— It must be noted that the question refers to the relative rights of a son, and & foster-son, not an adopted son, in which case a different relation of right would arise. (See Section 2.)
858 HBIRS IN DIVIDED FAMILY. [BK.i/3H.nAl,^C.
2. If the father should have parted with ancestral property for ▼aloable consideration, and not for a palpably immoral purpose, the son would be bound by such alienation, according to NarayarMcharya V. Naraoo Krishna, (a) This case, and the ones cited in it, are diacussed with reference to the Hindd law of Bombay in the Introd. to Book U.
Q. 5. — A died, leaving a son, B, by his first wife, and a second wife, G, Does A*a house pass to B alone, or can C claim a share of it ?
If a portion of the house happen to be in the occupation of 0, will such occupation give 0 a title to the portion of the house which she is occupying ?
A. — On the death of A, his house passes to his son B, and although B's step-mother may at the time be in occu- pation of a portion of the house, she cannot on that acconnt be considered to have any right to such portion.
Burat, April 6th, 1846.
Authorities.— (1) Mit. Vyav. f. 69, p. 1, 1. 1 (see Chap. II. Sec. 1, Q. 2) ; (2) Manu IX. 185 (see Chap. II. Sec. 1, Q. 1).
Bbmark. — The step-mother can, however, claim "maintenance, (Anth. I.) and residence. (See above, p. 252, and Book II. Introd.)
Q. 6. — A had a son B by his first wife. B from his father A, who man'ied a second wife G. On the death of A, if B pays A*s debts, will B or will Obei'sheir? If B is il*8 heir, then is 0 entitled to a share of J's propertji or can she claim only a maintenance out of ^^s estate ?
A. — B will be heir to his father A ; but if A has assigned to G any strldhana, this strldhana will belong to 0, and besides so long as she behaves chastely and lives under the protection of B, she should be allowed maintenance.
Ahmednuggur, April 21 st, 1848.
Authorities.— (1) Vyav. May. p. 89, 1. 2 ; (2) p. 142, 1. 8; (3) p. 181» 1. 5 ; (4) Mit. Vyav. f. 69, p. I, 1. 1 (see Chap. II. Sec. 1, Q. 2); (5) Manu IX. 185 (see Chap. II. Sec. 1, Q. 1).
(a) I. L. R. 1 Bom. 282. See also above, pp. 206, 207.
iE.i,OBJi^,q.a] SON BT BIRTH, LEGlTlMATfi. 359
Remabk.— A prior separation and renunciation of rights by a son does not deprive him, on his father's death, of his right of in- heritance, (a)
2. Ramappa Naieken v. SitJiammdl {b) establishes (reversing the judgment of Mr. Bnmell, the District Judge) that a separated son in- herits before the father's widow. To the same effect is the judgment in Advyapa bin Duridapa v. Dwidapa bin Andaneapa. (c)
3. See Introd. p. 254 ss.
Q. 7. — A Bangari (dyer) put away his wife and his son by her, after which he lived for several years with a concu- bine, by whom he had a daughter. On his death, will his widow and her son be his heirs, or will his concubine and her daughter be his heirs ?
i.— The son is entitled to inherit his father^s moveable and immoveable property, though he may have lived sepa- rate from him. The kept woman and her daughter are not the heirs of the deceased.
Poonaf September llth, 1849. Kheda.May I8th, 1848.
AuTHOKiTlES.— (1) Mana IX. 163:—
'* The son of his own body is the sole heir to his estate."
(2) Mit. Vyav. f. 46, p. 2, 1. 1 ; (3) Manu IX. 185 (see Chap. II. Sec. IQ.1.)
Q. 8. — If a "Lingftyat" die, will his widow or his son inherit his house ?
A, — ^The son is the rightful heir to the father's moveable and immoveable property. A widow can only claim that portion of the family property which may have been left for her by her husband at the time he eflfected a division of his property among his sons, or a share (to be) reserved by the sons when sharing the property among themselves. Ahmednuggurj September 2nd, 1850.
(o) BaLkrishna Trimbak Tendulkar v. Sdvitribdi, I. L. R. 3 Bom. 54. Comp. Yiner's Abridgment, Extinguishment, Co. Litt. 7 6, 8 6, 237 *; we above, p. 69.
(6) I. L. R. 2 Mad. 182.
(c) Bom. H. C P. J. F. for 1881, p. 48.
360 HEIRS IN DIVIDED FAMILY. [bk.i,ch.ii^,<i.11.
AuTHORTTTES.— (1) Mit. Vyav. f. 46, p. 1, 1. 9 ; (2) f. 80, p. 1.1. 6 ; (8)f. 33, p. 1, 1. 3 ; (4) Vyav. May. p. 89, 1. 2 and 6 ; (5) p. 108, 1. 3 ; (6) p. 90, 1. 2 and 3; (7) p. 94, 1. 7; (8) p. 96, 1. 5; (9) p. 151, 1. 2; (10) p. 175, 1. 3 ; (11) Mann IX. 185 and 163 {see Chap. H. Sec. 1, Q. 1 and Q. 7).
Q. 9. — A, a Kunbi, had a son B by his first wife. He then married a woman 0 who had been married before. B and 0 survived A. Has C any right to a share of the im- moveable property of A, and if so, to what share ?
A. — As A left a son by his first wife, the wife, who was not a virgin when he married her, can have no right to any share of his property. — Tanna, September 28th, 1852.
ATJTEOErriES.— (1) Mit. Vyav. f. 54, p. 2, 1. 16 ; (2) f . 55, p. 2, 1. 1; (3) Mann IX. 163 and 185 {see Chap. II. Sec. 1, Q. 7, and Q. 1).
Bemark. — As the second marriage of a Hindd female has been legalized by Act XV. of 1856, it seems that the widow can claim maintenance under Mit. Vyav. f. 69, p. 1, 1. 1 {see Chap. 11. Sec. 1, Q. 2 ; and above, pp. 88, 89).
Q. 10. — A HindA died, leaving a widow and a son, whicli of these is the heir ?
A. — The son is the heir, but if the property left by the deceased is to be divided, the widow will receive a share equal to that which the son receives.
Broach, July 28th, 1848.
Authorities.— (1) Mit. Vyav. f. 51, p. 1, 1. 7; (2) Mann IX. 185 {see Chap. II. Sec. 1, Q. 1) ; (3) Mit. Vyav. f. 69, p. 1, 1. I {see Chap. II. Sec. 1. Q. 2).
Remark.— The widow could not claim snch a division, nor any •eparate share, against the will of the son. {See Book II., Introd.)
Q. 11. — A deceased person has left two sons and a widow. Will the widow be entitled to a share of her husband's pro- perty in the same manner as the sons f
iij,CH.ii^l,q.l3,] SON BY BIRTH, LBGITIMATB. 361
A.— The widow is entitled to a share of the property equal to that received by one of her sons. The value of the stridhana which she may have received should be deducted from her share, that is, if a division of property take place.
Dharwar, November 29th, 1850. AuTHoaiTY.— Mit. Vyav. f. 61, p. 1, 1. 7 {see Chap. II. Sec. 1, Q. 2).
Q. 12. — Al man died, leaving a widow and four sons. Three of these sons are minors and one is an adult. Can each of these sons claim an equal share in their father's property ? and can the widow claim any share in her hus- band's property ?
A. — Each of the sons of a deceased father can take an equal share of the patrimony. If their mother or the widow of their father has not received any property in the shape of stridhana, she should be allowed a share in her husband's property equal to that which is allotted to one of her sons. If she has received Pallu (the Gujarathi w6rd for Stridhana), her share will be equal to one-half of that which falls to one of her sons. — Broach, June Srd, 1848.
Authorities. — (I) Mit. Vyav. f. 61, p. 1, 1. 7 {see Chap. II. Sec. 1, Q. 2) ; (2*) Vyav. May. p. 94 1. 8 :—
"If any (Stridhana) had been given, they are only to get half (a son's share), for, he adds : Or if any had been given, let him assign the half." The half meaning so much as, with what had been before given as separate property, will make it equal to a son's share. ** But if her property be (already) more than such share, no share belongs to her." (Borradaile, p. 58 ; Stokes, H. L. B. 61)
Beuakk. — In case the mother possesses separate property, the amount of her share will depend on the amount of her stridhana. (See Auth. 2.)
Q. 18. — Can a widowed sister without male issue claim fix)m her brother a share of her father's property, and has she any right to live in her brother's house ?
46fl
362 HBIBS IN DIVIDED FAMILY. [i».i,ch.h,s1,^15.
-4. — The sister has no right to any share of the property, nor to a residence in her brother's house. AhmednugguTf August Ist, 1847.
AuTHOBiTT.— Manu IX. 185 {see Chap. II. Sec. 1, Q. 1).
Remabk. — Colebrooke recognized a widowed sister's claim in a case of destitution. (&e above, p. 218.)
Q. 14. — A man died, leaving two sons, one of whom " all his father's debts. Is he alone, on this account, entitled to inherit the property of his father ? or have both sons ^qaal rights of inheritance ?
A. — If the son who paid his father's debts has taken possession of the property, with the consent of his brother, he may be considered the owner of the whole. If be has paid the debts and taken possession of the property of his father, without the consent of his brother, then the brother or his son has a right to recover one-half of the property on payment of the amount of one-half of the debts discharged with interest. — Aliniedabad, June 2bth, 1858.
Authorities. — (1) Vyav. May. p. 181, 1. 6; (2) Mit. Vyav. f. 47, p. 2,1. 13:—
" Let sons divide equally both the effects and debts after (the demise of ) their twa parents." (Colebrooke, Mit. p. 263; Stokes, H. L. B. 381.)
Remaek. — The sons divide the father's property equally, and are subject to equal shares of his debts. If one of the sons has paid all debts, he will be justified in retaining, besides his own share, as mnch as covers what he has expended in excess of his proper share of the debts.
Q. 15. — A died, leaving his widow 5, his sons, (7 and D, and G^a wife E. Which of these is his heir ? After the death of Ay and while the property was still undivided, C died, leaving no male issue. If C had property, which of the Above-named persons would succeed to it after the death of 0 ? If JD had property, and, while the family was still un- divided, D died, which of the two widows, B and E, would
Bi.i,CH.n,8.1,q.l7.] SON BY BIRTH, LEGITIMATE. 363
sncceed to it? If A left a hoase as the common property of the family, which of the two widows, B and £7, would be entitled to occupy? A^a house was sold by B without the consent of E. Is the sale valid ?
A, — 0 and D are the heirs of -4 ; as C died while the family was united in interests, the right of inheritance to the whole of the undivided property of the family will devolve on D,
Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec, 2, Q.4];(2)f. 55, p. 2,1. 10; (3) f. 46, p. 2,1. 11; (4) Viramitrodaya f. 194, p. 1, 1. 4 ; (5) Manu IX. 185 (.see Chap. II. Sec. 1, Q. 1) ; (6) :—
" Even a single indiv^idaal may conclude a donation, mortgage, or sale of immoveable property, during a season of distress, for the sake of the family, and especially for pious purposes." (Colebrooke, Mit. p. 257; Stokes, H. L. B. 376.)
Remark. — The last passage is intended as an answer to the last of the series of questions proposed.
Q. 16. — Are all the sons of a man equally entitled to inherit the immoveable property acquired by their father? and can they, after their father's death, divide such property ?
A. — All the sons of a man are equally entitled to inherit their father's immoveable property, and they may divide it after his death. — Poona, November 5th, 1851.
Authorities.— (1) Mit. Vyav. f. 47, p. 2, 1, 13 {see Chap. II. Sec. 1, Q. 14) ; (2) Vyav. May. p. 90, 1. 2.
Q. 1 7. — A died, leaving B a son, C the son of another son D, and E the widow of a third son F. How should the real property of A be divided among these three ?
A. — The property should be divided equally between B and C; -S is entitled to a maintenance only. Suraty September 16th, 1846.
Authorities.— (1) Vyav. May. p. 94, 1. 1 :—
" In wealth acquired by the grandfather, whether it consist of move- ables or immoveables, the equal participation of father and son is ordained." (Borradaile, p. 67 ; Stokes, H. L. B. 51.)
364 HEIRS TN DIVIDED FAMILY. [Bi.i,cH.n,8.1,(il9.
(2) Vyav. May. p. 136, 1. 4 (see Chap. I. Sec. 2, Q. 11). Sec infra, Bk. II. Introd. Sec. 6 B.
Remark.-^As to the maintenance of the widow, gee the Introduc- tion, Sec. 10 ; above, p. 246; and Bk. II. Introd. Sec. 6 B.
Q. 18. — A man and his son were united in interests. The son died, and the question is, who should be considered his heir ? There are his father, mother, brother, wife, and son.
A. — All have equal right to the deceased's property. The ornaments which might have been given to the wife of the deceased must, however, be considered her exclusive pro- perty.
Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 ; (2) Vyav. May. p. 54, 1. 4; (3) Manu IX. 185 (see Chap. II. Sec. 1, Q. 1).
Bemark. — The father being united succeeds according to the antho- ritiea cited (see above, Bk. I. Introd.) if the son of the deceased was separated. Otherwise the son takes his father's place in anion with his grandfather.
Q. 19.— A man had two sons. The father divided his property between them, and reserved a portion for himself. He had afterwards a third son bom to him. The father subsequently died. The question is, what portion of the property should be given to the third son ?
A,— 'It appears that when the father was alive he divided his property between his sons, and reserved a portion for himself The father may have acquired some more property after the division took place. All the property which may thus have come into the possession of the father belongs to the son born after the division. The sons who separated cannot claim any portion of this property. The son born aft3r the division will be entitled to it, and will be also liable for such debts of the father as he may have contract- ed since the separation of his two sons. Foona, August 20th^ 1857.
mj,ch.ii,b.2,q2.] adopted SON. 365
Adthorities.— (1) Vyav. May. p. 99, 1. 4 {see Auth. 2); (2*) Mit. VjaT. f. 60, p. 2, 1. 6 :—
" A son born after a division shall alone take the paternal wealth. The term * paternal ' must be here interpreted * appertaining to both fether and mother. " (Colebrooke, Mit. p. 281 ; Stokes, H. L. B. 394.)
SECTION 2.-.AD0PTED SON. (a)
Q, 1 . — A person adopted his sister^s son's son, but became afterwards displeased with him. He made a will bequeath- ing his property to his adopted son and several brothers. Can he distribute his property in this manner ? and is an adopted son liable to his natural father^s debt ?
il.~No. A man has no right to distribute his property in the manner described in the question, when he has a legal heir in his adopted son. A son given in adoption is not responsible for the debt of his natural father.
Sadr Addlat, May 2oth, 1824.
Authorities.— (1*) Dattakamimamsa, p. 36, 1. 10 {see Chap. II. Sec 2, Q. 3) ; (2*) Mauu IX. 142 :-
** A given son mast never claim the family and estate of his natural father ; the funeral cake follows the family and estate ; but of him, who has given away his son, the funeral oblation is extinct." {iSee Yyav. May. Chap. IV. Sec. V. para. 22.)
Eemark. — As to the will, see Book II. Chap. I. Sec. 2, Q. 8, Bemark ; and above, p. 219.
Q. 2. — Can a man set aside an adoption duly solemnized ? A, — It cannot be set aside without sufficient grounds.
Poona, Octobei' 27th, 1854. Authority.— »Datt. Mim. p. 36, 1. 10 {see Chap. 11. Sec. 2, Q. 3).
(a) An adopted son competing with one begotten takes one-fourth as much, Ayydvu Muppandr v. Niladatchi et aly 1 M.* H. C. R. 46. Adoption causes a complete severance from the family of birth, ShrU nivds Ayyangdr v. Kuppan Ayyangdr, I M. H.C R. 180; Narsammal v. BalardmdcMrlu, ibid. 420.
366 HEIRS IN DIVIDED FAMILY. [BK.i.CH.n,g2,q.4.
Reuark. — ** Without snfficient grounds," i.e. unless the son shows such physical or moral defects as would make the rules of disinhe- ritance applicable.
Q. 3. — A man adopted a son. The adoptive father after- wards died, leaving a widow. The adopted son wishes to have possession of the whole property of his adoptive father. What is the law on the point ?
A. — The widow of the adoptive father shonld in the above case be allowed a portion of the property, which, together with her ^^ Strldhana, '' will make up a share equal to that which the adoptive son receives.
Sadr Addlat, June 25th, 1827.
Authorities. — (1) Vyav. May. p. 94, 1. 8 {see Chap. II. Sec. 1, Q. 12); (2) Mit. Vyav. f. 61, p. 1, 1. 7 (see Chap. II. Sec. 1, Q. 2) ; (3*) Datt. MJm. p. 36, 1. 10:—
** Therefore Manu says, ' an adopted son, who possesses all the qualities (requisite for an heir), inherits (his adoptive father's estate), though he may have been adopDed from another family (gens).' "
B.EMAAKS. — 1. The adopted son inherits his adoptive father's property.
2. The passage quoted by the S&stri, under Authority 2, prescribes that the mother should receive a son's share, if after the father s death the sons divide the estate. "Where no division takes place, the mother receives a suitable maintenance only.
3. The adoption by a widow, according to Baje Vyankairdv v. Jayavantrdv, (a) operates retrospectively, and relates back to the death of her husband. But the flindii Law does not allow this principle t^ be made a means of fraud. See next case.
Q, 4. — Can a woman, having an adoptive son, let her land by the contract called '< Sarkat " (&) without his con- sent ? 1
A. — When a son is adopted he becomes the owner of i^^ I property of.his father. A woman therefore has no right to
(a) 4 Bom. H. C. R. 191 A. C. J.
(h) *' Partnership, '' a letting on terms of a division of the produce.
BKj,cH.ii,8.2,q.4] ADOPTED SON. 867
let her land by the contract called '' Sarkat '^ without his consent. Any contract entered into before the adoption of an heir will, however, be valid. — PoonUy June 20thy 1845.
Authority.— ♦Datt. Mim. p. 36, 1. 10 {see Chap. II. Sec. 2, Q. 3).
Remarks. — 1. It must be presumed that the land, though called "the widow's,** belonged originally to the husband.
2. The adopted son is not bound by an unauthorized alienation, (a) But he is bound by one for a recognized necessity, {b) He is also bound by one made before his adoption to pay off a debt of the widow's deceased husband, (c) The widow must be understood as occupying a place similar to that of a manager down to the time of the adoption. Whether before or after the adoption, (the adopted son being a minor,) the person contracting with her should satisfy him- self of the propriety of the transaction. Bam Dhone BhuUachargee T. Ishanee Dabee ; {d) Bajlakhi Debia v. Gakul Chandra ChoyMry;{e) C. Colum Comara VencatachellaY. B. Bungasawmy; (/) Dalpatsing T. Nanahhai et al\ (g) The Collector of Madura v. Mootoo Bamalhiga; {h) Bamandas v. Mtcsst, Tarinee; {i) and Ndthdji v. Hart, {j) In the last case, a gift made by a widow, before adopting a son, was set aside in his favour. In the case of Govindo Nath Roy v. Ram Kanay Chowdhry, (it) on the other hand, cited in I. L. R. 2 Calc. 307, an
(a) The Collector of Madura v. Moottoo Bamalinga Sathupathy, 12 M. I. A. at p. 443.
{b) See BamundosB Mookerjea v. Musst. Tarinee, 7 M. I. A. at pp. 1/8, 180, 185, 206.
(c) Saira Khumagi et al v. Tatia Hawniantrao et al, Bom. H. C. P. J. F. for 1878, p. 121. He takes the duties with the rights of a begotten son. See Bamundoss Mookerjea v. Muast. Tarinee, 7 M. I. A. at pp. 178, 180, 185, and Manikmulla v. Parbuttee, C. S. D. A. R. for 1859, p. b\b ; Maharajah Juggernaut Saliaie v. Musst. Muckun Koomwar, Calc. W. R. 24 C. R. ; Rdmbhat v. Lakshman Chintdman, I. L.R. 5Bo. at p. 635.
(d) 2 C. W. R. 123 C. R. (e)3 B. L. R. 57P. C. (/)8 M. I. A. at p. 323. ig) 2 Bom. H. C. R. 306. {h) 12 M. I. A. 443.
(i) 7 M. I. A. 169.
ij) 8Bom.H.C. R. 67 A.C.J.
(fe)24C.W.R.183.
368 HEIRS IN DIVIDED FAMILY. [bk.i.ch.im.2,(1.4.
alienation for value was upheld ; and in the later judgment (a) it is laid down that in no case can an estate, vested in possession, be divested by the subsequent adoption of a son, who then claims as a collateral heir of the former owner. In Nilcomul Lahuri v. Jotendro Mohun Lahuri {b) it was held that where a nephew of a deceased had, by fraud, prevented his widow from adopting, and had thus himself succeeded to the whole instead of the half of the estate lefl by the widow of another uncle, the subsequent adoption did not relate back BO as to divest the nephew of the moiety to which the adopted son if taken in due time would have been co-heir with his cousin by adop- tion. Whether an adoption by one widow annulled a prior conveyance of her estate by another was a question sent back for trial in Bdbdji y. Apdji. (c) In a series of cases in C. S. D. A. E. for 1856, pp. 170 ss., an adopted son who had long received rents under leases granted by his adoptive mother sought to enhance the rents incon- sistently with the leases. It was thought he could do this, but now probably his conduct would be deemed a ratification. These cases differ from the case of Shiddheshvar v. Rdmchandrardo, {d) as in the latter the adoptive mothers after the adopted son had attained his majority had mortgaged the estate in their own names. The adopted son promised to his mothers to redeem the mortgage, and he offered no objection to the mortgagee's paying them an annuity in accord- ance with the mortgage ; but it was held that there conld be no ratification of what had not been done professedly on accoant of the principal, and that mere quiescence of the owner would not validate unauthorized dealings with his property. The mortgagee, it was said, if he had taken assignments of prior charges valid as against the adopted son, might enforce them in another suit.
In Bai Kesar v. Bai Ganga (e) the question was as to alienation by a father's widow as guardian of a son's minor widow of property of the latter. The transaction was set aside an account of the gua^ dian*s not having obtained a certificate of administration under Act XX. of 1864 ; but as the sale had been made to pay debts reasonably incurred, its rescission was made conditional on the repayment by the younger widow of the purchase-money to the vendee. {See further. Book II. Introd.)
(a) Kally Prosonno Qhose v. Gocool Chundre Hitter, I. L. B. 2 Cal. 307.
(b) I. L. R. 7 Cal. 178.
(c) S. A. No. 190 of 1877 ; Bom. H. C. P. J. F. for 1877, p. 269.
(d) I. L. R. 6 Bom. 463.
{e) 8 B. H. C. R. 31 A. C. J.
ii.i,cH.u,i.2,<i.7.] ADOPTED SON. 869
3. For the conditions limiting a widow's power to adopt in Bombay, see Romji valad Ndrdyan v. Ohaman Kom Jivdji (a) and Book III. of this work treating of Adoption.
Q. 5. — The holder of an Inam granted for the support of a temple^ died, leaving an adopted son. The son and the widow of the holder disagreed and separated. The question therefore is whether the Inam should in future be entered in the name of the adopted son or of the widow ?
A, — ^The Inam should be entered in the name of the adopted son. — Ahmediiuggur, October 16th, 1851.
Authorities.— (1) Datt. Mim. p. 1,1. 3 and 11; (2*) p. 36,1. 10 {•ee Chap. II. Sec. 2, Q. 3) ; (3) Vyav. May. p. 104, 1. 7 ; (4) p. 105, 1. 6; (6) p. 107, 1. 6 ; (6) p. 102, 1. 4 ; (7) p. 110, 1, 6 ; (8) p. 108, 1. 3.
Q. 6. — A deceased man has left a daughter and an adopted son. Which of these has a right to inherit the property belonging to the deceased ?
4.— The daughter is entitled to one-eighth of the property. The expenses of her marriage should be defrayed from this share and the rest of the share made over to her. The adopted son should receive the remaining seven-eighths of the property. — Ahmedmiggur, March 14th, 1856.
ATJTHORmis.-(l) Vyav. May. p. 102. 1. 4 ; (2) p. 110, 1. ? ; (3) Mtt. Vyay. f. 51, p. 1, 1. 9 (see Chap. I. Sec. 2, Q. 17) ; (4*) Datt. Mim. p. 36, 1. 10 {$ee Chap. II. Sec. 2, Q. 3).
Q. 7. — A Brihman widow has adopted a son ; should he or she have the management of her property during her lifetime ?
A, — ^The adoptive mother^s Stridhana should remain in her possession. The adopted son should make a suitable provi- sion for the support of his mother, and the mother should remain under the control (6) of her son, who should have
(a) Bom. H. C. P. J. F. for 1882, p. 141.
(b) See above, Introd. p. 254 ss. 47 H
870 HEIES IN DIVIDBD FAMILY. [U.i,ci.iM.!,qlO,
the management of all the moveable and immoyeable pro- perty. — Ahmednuggur, October 17th, 1845.
AuTHOKiry.— ♦ Datt. Mim. p. 36, 1. 10 {see Chap. II. Sec. 2, Q. 8).
Q. 8. — A woman after the death of her husband adopted a eon. Can he claim the property of his (adoptive) father during the lifetime of his mother ?
A, — ^Yes, he can claim his father's property, but not that of his mother. — Poona, November Ist, 1852.
Authorities.— (I) Mit. Vyav. f. 64, p. 2, 1. 15 ; (2») Datt. Mlm. p. S6, 1. 10 {see Chap. XL Sec. 2, Q. 3.)
Q, 9. — A woman adopted a son, and agreed to put him in possession of his property. The woman afterwards refused to act up to her agreement. Can the adopted son Boe his adoptive mother for the possession of the property T
A. — The adoptive mother can be sued on the agreement, but she can still claim a maintenance. Poona, November otk, 1852.
AuTH0KiTiES.~(l) Viram. f. 121, p. 1, 1. 10; (2) p. 2, 1. U; (3^ Datt. Mlm. p. 36, 1. 10, (see Chap. II. Sec 2, Q. 3).
Q. 10. — Can an adopted son of a woman claim the pro- perty in her possession ? A part of the property was ac- quired by her and the rest by her husband.
A. — ^The portion of the property which was acquired hy the woman is her ^^ Stridhana,*' of which she alone is the owner. The adopted son can claim a half of the property belonging to her husband. The other half must be left with the widow. She is at liberty to enjoy the proceeds of the immoveable property, but not to mortgage or dispose of it. RvtnagJwrry^ February 20th, 1854.
AuTHOKiTiES.— (1) Mit. Vyav. f. 51, p. 1, 1. 7 ; (2) f. 60, p. 2, 1. 16; (3) f. 61, p. 1, 1. 10; (4) f. 61, p. 2. 1. 3; (5) f. 60, p. 2, 1. 16 :-
(Y&jnavalkya.) ** What was given to a woman by the father, tbt mother, the husband, or a brother, or received by her at the naptiil
M[.i,ci,»,i^,q.lg.] ADOPTED SON. 871
fires, or presented to her on her husband's marriage to another wife, or also any other (separate acquisition), is denominated a woman's
property." (Vijn&neSvara). And on account of the
word '* &dyam" (and the like) property which she may have acquired by inheritance, purchase, partition, seizure, or finding, are denomi- nated by Manu and the rest, * woman's property.' (Colebrooke> Inh. p. 364; Stokes, H. L. B. 468. Translation revised according to note in 1st Edition of this work, q. v. See above, pp. 268 ss.)
RiMAEK. — ^The adopted son takes the whole of his adoptive father*! property. {See Chap. II. Sec. 2, Q. 3.)
Q. 11, — A woman has adopted a son. She is possessed of some moveable and immoveable property. Js she or her adopted son the owner of the property ?
^. — When a son is adopted by a widow, he becomes the owner of her husband's property. If he should happen to be a minor, the property should be taken care of by the widow, who is the owner of her " Strldhana" only. Ahmednvggur, August ISi/i, 1849.
AuTHoBrriES.— (1) Datt. Mim. f. 1, p. 1, 1. 3 and 11 ; (2) Vyav. May. p. 102, 1. 10 ; (3) p. 110, 1. 6 ; (4) p. 104, 1. 7 ; (5) p. 105, 1. 6 ; p. 107, 16; (7) p. 103, 1. 7 ; (8*) Datt. Mim. p. 36, 1. 10 {see Chap. II. See. 2, Q. 8) ; (9*) Manu IX. 27 {see Chap. II. Sec. 1, Q. 1).
Q. 12.— A widow of the Mahar caste adopted a son of her sister. He succeeded to the Watan of his adoptive father. His cousin has sued him for the recovery of the property. How should this case be decided t
il.— The sister's son adopted by the widow is legally en- titled to the Watan of his adoptive father. The cousin therefore cannot disturb his possession. Ahmednuggury April 'i2th, 1856.
AoTHOEiTY.— 'Datt. Mim. p. 36, 1. 10 (sec Chap. II- Sec. 2, Q. 3).
Q. 15._A person having lost his first adopted son adopt- ed another, and the wife of the deceased adopted one also. How will the two adopted sons share the family property ?
-4.— Equally. — Tanna^ June \2th, 1858.
372 HBIBS IN DIVIDED FAMILY. CBt.i.cH.n,8.2,<i.l5.
AtiTHOBiTiES.— (1) Mit. Vyar. t 50, p. 1, 1. 7 {iee Chap. II. Sec 4, Q. 2) ; (2) f. 60, p. 2, 1. 3.
Remark. — The adoption by the widow of the deceased eon, it wm answered in one case (No. 1666 MSS), would hold good notwithstand- ing a prior adoption by her father-in-law. An adoption by her alone is to be preferred (No. 1660 MSS).
Q, 14i. — A man adopted a son, but afterwards lie had a son born to him. He separated from his adopted sod, giTing him a share of his property. The man and his son subse- quently died. The widow of the son married another husband. The adopted son, and a "Piit" widow of the adoptive father, are the only persons who claim to be the heirs of the adoptive father. Which of these is the heir?
A, — The adopted son. — Dharwar, January ISih, 1859.
Authorities.— (1) Vyav. May. p. 134, 1. 4 ; (2*) Vtram. f. 194, p. X 1. 4 {see Chap. II. Sec. 6a. Q. 14) ; (3*) Datt. Mlm. p. 36, 1. 10 (#fle Chap. II. Sec. 2, Q. 3).
Q. 15. — A man first adopted a son, and afterwards he had a son born to him. How will thej share the man's property ?
4.— 'The adopted son is entitled to one- fourth of the share of the son. — Dharwar, September lOth, 1847. Authority. — ^Vyay. May. p. 108, 1. 2 : —
" When a son has been adopted, if a legitimate son be afterwards born, the given son shares a fourth part." (Borradaile, p. 72 ; Stokea, H. L. B. m.)
Bemark. — On the death of an intestate a contest arose between hii adopted son and the adopted son of his natural son. The Court held that their rights were equal. Raghoobatiaiid Boss v. Sadhuchum Doss, (a) This would not be right on the principle of an adopted son fully representing his father in the absence of a natural son, as that would give the adoptive grandson the whole share of hi» father, in competition with whom the father's adoptive brother would take only half a share.
(a) I. L. R. 4 Cal. 425.
H.i,cH.ii,8.2,q.ia] ADOPTED SON. 373
Q. 16.— If a son is bom to a man after lie lias adopted one, what portion of his property should be given to the adopted son 7
A, — The property should be divided into five shares, one share should be given to the adopted, and four to the be- gotten son. — Sadr Addlat, July 2nd, 1858.
Authorities.— (1) Datt. Mim. f. 21, p. 2. 1. 1 ; (2*) Vyav. May. p. 108, 1. 2. {See the preceding question.)
Q. 17.— A Patll adopted a son, afterwards a son was born to him by a wife who had been married before he married her. Which of these will be his heir ? If after he had adopted a son, a son was born to him by his wife who was a virgin when he married her, which of the two sons will bo his heir?
A, — ^The son of her who was a virgin, when the Pfttil mar- ried her, has a greater right than the adopted son, and the adopted son a greater right than he who was born of a twice married mother. — Dhanvar, December 3rd, 1858.
Authorities.— (1) Mit. Vyav. f. 53, p. 2, 1. 6 ; (2*) f. 55, p. 1, 1. 11 [fee Chap. II. Sec. 3. Q. 1) ; (3*) Vyav. May. p. 108, 1. 2 {see Chap. II. Sec. 2, Q. 15) ; (4*) p. 112, 1. 2 {see Chap. II. Sec. 3, Q. 16).
Remarks. — 1. If the son bom after adoption was bom from a P&fc wife, he would, in the higher castes, and except by custom in the lower also (being under the Hindti Law considered illegitimate), be excluded. But as the illegitimate son of a SAdra, he will, according to Authority 3, receive one-third of the property. But «eeal80 Chap. II. Sec. 3, Q. 16, and Eemarks on the same question.
2. If a legitimate son be bom after the adoption has taken place, the adopted son receives a fifth of the deceased's estate, according to the preceding question. According to the Mit. Ch. I. Sec. XI. p. 24, the adopted son takes a fourth part.
Q. 18. — A, an Agarv&ll, had no children; but he bronght up one, B, as his foster son. A' a mistress had a son, 0, before Bhe was kept by A, and G accompanied his mother when
874 HEIRS IN DIVIDED FAMILY. [M.i,cH.n,f.2,q.lO.
sbe went to live in A*a hoaae, and took A'a name. On the death of A, will B or G succeed to his property ?
A.— A' a foster son, B, will be his heir. C, the son of his mistress, will not be his heir merely because he went with his mother to live in A's house.
Ahmednuggur, September 30th, 1846.
Authorities.— (1*) Datfc. Mim. p. 36, 1. 10 {see Chap. II. Sea. 2, Q. 3) ; (2») Vyav. May. p. 102, 1. 2 :—
"Here we must remark that with the exception of the son gifen (all other) secondary sons are set aside in the Kali (or present) age." (Borradaile, p. 66 ; Stokes, H. L. B. 68.)
Eehark. — B will inherit only if he was formally adopted ; Boiketti- appa V. Shivalingaj^pa ; (a) Nilmadhab Das v. BUswambhar Das «< al {b)
Q. 19. — A Koll A, had nephews, but they were separated from him. He had no son of his own, but he brought up 5, the son of a relation by a kept woman, either as a foster child, or as his adopted son (it is not known which). On the death of A, will his property pass to jB, or to his nephews ?
A, — If B was adopted by A, he will be his heir. If 5wa8 not adopted, but only brought up as a foster child by i, then his nephews, though separated from him, will inherit his property in preference to B.
Ahmednuggur, February 21 at, 1846^
AuTHOHiTiES— (1*) Datt. M!m. p. 36, 1. 10 {see Chap. II. Sec. 2, Q. 13); (2*) Vyav. May. p. 102, 1. 2 {see Chap. II. Sec 2, Q. 18).
Q. 20. — A, a Sfldra, died, leaving first and second cousins, and also a boy, B, whom he had either brought up as a foster child, or else bought. A, previous to hia death, bequeathed a portion of his property to B. Is B entitled to
(a) B. H. C. P. J. F. for 1873, p, 162.
(b) 3 B. L. R. 27, P. C.
rt.T,CH.ii,s.8,^l.l ILIiEGITlMATB SON. 875
claim any further share of the property besides that expressly bequeathed to him, and if so, how should the rest of the property be divided between B and A*s cousins ?
4. — If J5 was adopted by A with all the forms required by the Sastras, then he will succeed to the whole of the property left by his adoptive father. If he has not been so adopted, he can claim only so much property as may have been expressly assigned to him by the deceased A^ and the rest of ^^s property will pass to his blood relations. Ahmednugyur, January l7th, 1848.
AuTHOBiTiES. — (1) Vyav. May. p. 102, 1. 2 [see Chap. II. Sec. 2, Q. 18); (2) p. 159, 1. 2; (3) p. 142. 1. 8; (4) p. 7, 1. 8; (5) Mit. Vyav. f. W. p. 1, 1. 3 and 13 ; (6) f. 53, p. 2, 1. 6 ; (7) f. 54. p. 2, 1. 13 ; (8) f. 51, p. 1, 1. 3; (9) f. 50, p. 1, 1. 1 ; (10) Datt. Mim. p. 36, 1. 10 («ee Chap. U. Sec. 2, Q. 3).
SECTION 8.— ILLEGITIMATE SON.
Q. 1. — Can a son of a S&dra^s female slave be his heir f
A. — ^The son of a female slave is the heir of a SAdra.
Ahmedmiggur, September 30th, 1846.
Authority.— *Mit. Vyav. f. 55, p. 1, 1. 11 :—
" Even a son begotten by a SAdra on a female slave may take a share by the father's choice. But if the father be dead, the brethren should make him partaker of a moiety of a share ; and one who has no brothers, may inherit the whole property, in default of a daughter*! Bon.'* (Colebrooke, Mit. p. 322 ; Stokes, H. L. B. 426.)
Remabks. — See Rahi v. Qovind, (a) Narayanhharti v. Lavinghharti, (Jb) and Inderun Valungypooly Taver v. Ramasawmy. (c)
2. The union of the sexes amongst many of the wilder tribes and the lower castes of India can be called marriage only by courtesy. The word implies a set of relations which amongst them does not really
(a) I. L. R. 1 Bom. 97.
(h) I. L. R. 2 Bom. 140.
(c) 13 M. I. A. 141, or 3 B. L. R. 4 P. C.
376 HBIRS IN DIVIDED FAMILY. [Bt.i,cH.n,U,q.l.
exist. Thus amongst the Khonds the so-called wife is boaght from her father and carried off by force, (a) She can leave her husband T?hen she will, her parent being then bound to repay her price. Amongst some classes in K&ngra a purchased widow is reckoned a " wife " without further ceremony, (fe) The custom of some castes in Gujar&t allows the woman to leave the man and to form a connexion with another, subject or not to ratification by the caste. Mere incompatibility of temper is with several regarded as a ground for dissolution of the union, and in nearly all the lower castes the man may dismiss the woman at his pleasure with or without reason ; the only restraint he feels arises from the necessary expense of a new wife. Parents and brothers habitually encourage young wives to run away from their husbands to induce the latter to divorce them and so leave room for another sale. The Brahmanic law regards a marriage as really indissoluble, (c) though the erring wife may be divorced in the sense of being disgraced and kept apart. It could not, therefore, treat with respect connexions in which there was no religious conjunction of sacra, no recognition of an indissoluble bond, no procreation of children to fulfil the sacrificial law. The British Courts give efiect to many unions as marriage which are almost entirely wanting in the characteristics of what in England goes by that name, and even apply the provisions of the Penal Code to trans- gressions of a law which in itself never laid any strict obligations on the spouses. The relations of the sexes in British territory hare thus been raised in some degree to a higher level amongst the lower castes, but at the cost of penal inflictions, it may be feared in many instances in which the culprits were wholly unconscious of having committed any offence, (d)
Baudh&yana makes mere sexual association a lawful union for Vaisyas and Stidras, " for," he says, " Yaisyas and 6<idras are not particular about their wives ." Shortly afterwards he says " A female who has been bought for money is not a wife : she cannot assist at sacrifices ofiered to the gods or the manes. Kasyappa has pro- nounced her a slave." — ^Transl, p. 207. {See above, pp 86, 274.)
(a) See Rowney, Wild Tribes of India, p. 103.
(b) See Panj. Cust. Law, II. 184.
(c) See above, p. 90, and below. Sec. 6 b. Introd. Remarks.
(d) See Mathurd Ndikin v. Esu Ndikin, I. L. R. 4 Bom. 545, 565, 570 ; Rowney, op. cit p. 136, 139, 190, 204 ; Steele, Law of Castes, 32, 33, 170, 171, 172, 173. Lord Penzance in MordaurU v. M(yrda\iiA, L. R. 2 P. and D. at p. 126 ; Lush, L. J., in Harvey v. Famie, L. B. 6 P. D. at p. 53.
n.i,CH.ii,t.3,q.8.] ILLEGITIMATE SON* 377
3. An illegitimate son was preferred to a widow and daughter kSadu y. Baiza and Genu, (a) (See below, Q. 12.)
Q. 2. — Can an illegitimate son of a Br&hman claim a share from his legitimate brother?
i.— No: he cannot have any share. He can only claim that which his father may have expressly given to him. Ahmednuggur, February 15th, 1851.
ArTHOKiTiES.— (1) Yyav. May. p. 99, 1. 1 {see Auth. 8) ; (2) p. 98, L 4; (3) Mit. Vyav. f. 65, p. 1, 1. 15 :—
"From the mention of a SAdra in this place (it follows that) the Bon begotten by a man of a regenerate tribe on a female slave does not obtain a share, even by the father's choice, nor the whole estate afker his demise." (b) (Colebrooke, Mit. p. 323 ; Stokes, H. L. B. 426.)
Remabk.— See above, p. 263.
Q. 3. — ^AM^rw^lhas a son by a woman either kept or pur- chased as a slave. Can the woman or the son be hiaheir ?
4.— If the Marwidi is a SAdra, his illegimate son will be his heir. K he is not a Sudra, and if he has not made a gift of his property to any one, the Sirk4r should take his property after paying for his funeral rites and the mainten- ance of the woman. If the deceased has made a gift of his property to either the son or the woman, it should be made over to her or him.
Ahmednuggur, February 23rd> 1847. AxjTHORiTiBS.— (1) Mit. Yyav. f. 55, p; 1, 1. 11 {see Chap. II. Sec. 3iQ.l);(2)f.57,p. 1.1.5:- (a) I. L. R.4 Bom. 37, S. C. ; Bom. H. C. P. J. F. 1879, p. 509. {b) According to the Sanscrit text as given above, the translation " nor the whole estate after his demise " is not correct. It ought to be "nor half a share, much less the whole."
The EngHsh law of Glanville*s time allowed a father to give to an illegitimate son a share of the patrimony which he could not give to a yomiger legitimate son without the consent of the heir. {See Glan- ▼ille, p. 141.) This arose from a preservation of the literal direction of a text while the law to which it was collateral had changed. For an analogous process in the Hindd Law, see below, Q. 8. 48b
378 HEIRS IN DIVIDED FAMILY. [BE.i,cH.nMq.5.
" It is said by EAty&yana that heirless property goes to the king, dedacting, however, a sabsistence for thejfemalea, (a) as well as the faneral charges, bat the goods belonging to a yenerable priest, let him bestow on yenerable priests. " (Colebrooke, Mit. p. 335; Stokee, H. L. B. 435.)
(3) Vyav. May. p. 236, 1. 61 ; (4) p. 98, 1. 6 ; (6) Mann IX. 155.
Q, 4, — ^When a deceased Pardeshi (b) has no nearer heir than a son of his kept woman^ can such a person be Iiia heir ?
A. — Yea.—Poona, August I7tk, 1847.
Authority.— ♦Mit. Vyav. f. 55> p. 1^ 1. 11 (»ee Chap. ITi Sec. 3, Q. 1).
Rbmabk. — "Yes, " if the son is his own also* and if deceased belonged to the Sddra caste*
Q, 5.— A person permitted his illegitimate son to live in one of his houses. This person and his descendants occu- pied the house for several years. They repaired, improved, and divided it among themselves. Can the house be claim- ed by the legitimate heirs of the original owner, and how many years' possession constitutes a prescriptive title f
A. — A man of the SAdra caste having legitimate and illegitimate sons, can transfer his real or personal property to the latter. The legitimate heirs cannot cancel such a trans- fer. The period necessary to constitute a prescriptive title is not fixed in the Sastras. — Ahmednuggur, May 26th, 1847.
AuTHOEiTiES.— (1) Mit. Vyav. f. 65, p. 1, 1. 11 (see Chap. H. Sec 3, Q. 1) ; (2) f. 66, p. 1,. 1. 3 ; (3) f. 11, p. 2, 1. 11 and f. 12, p. 2, 1. 14. Translated 1 Macn. H. L. 200 ; (4) Vyav. May. p. 83, 1. 3 ; (5) p. 89, L 2.
(a) According to Vyn&nesvara, " females" here means " concubines" (avaraddh&). If a patni wife survived, the property would not be heirless.
(h) " Pardeshi," Paraded! (lit. foreigner) is used m the Dekhan to denote any Hindt) who has immigrated from some other part of Indi»» especially from Hindast&n, whatever his oaste may be.
u.I,CH.u,8.3,^7.] ILLEGITIMATE SON. 879
EnuBKS. — 1. A 6tldra cftnnot transfer his entire property to his illegitimate children, if he has legitimate sons. He can only give eqaal portions to the legitimate and illegitimate heirs. See however Book II. Chap. I. Sec. 2; above, p. 209.
2. If the house which the illegitimate son had received was not more than a portion equal to the share of a legitimate son, the li^tter cannot recover it. If it was more, he would be able to recover it, but be obliged to give to the illegitimate son one-third of the property or one-half of a son's share, (a) Even amongst the higher castes, as the illegitimate son is entitled to maintenance, a grant to him by his father for this purpose is valid against the legitimate sons, (b) {See the Introd. p. 263.)
3. According to the Mit&kshar&, contrary to Y&jnavalkya and N&rada to which it refers, proprietary rights cannot be acquired by mere occupancy, however long it may last, and though the owner may not remonstrate. But see now Act 15 of 1877, Eeg. V. of 1827* and Book II. Introd., "Will to effect a sepakation."
Q. 6. — ^Is a cousin who performed the funeral ceremonies of his deceased relative, or a kept woman^s son, who is a minor under the guardianship of his sister, his heir 7
A, — As the deceased was separate from his relatives, and as he was of the SAdra caste, his illegitimate son will be heir. But as the illegitimate son is a minor under the pro^ taction of his sister, she may have the charge of the property ou his behalf. — Nuggur, November Istj ] 845.
ATJTHOKiTi.--*Mit. Vyav. f. 65, p. 1, 1. 11 {eee Chap. n. Sec. 3, Ql).
Q. 7. — A man of the Mall caste left a son by a kept woman, and this son claims a share in certain land which is m possession of the deceased^s nephew. Is the claim of the illegitimate son valid ?
A, — As it appears that the man lived separate from his brothers, and that his share is in the possession of his nephew, the illegitimate son can claim it. Ntiggur, September I2th, 1845.
(a) Keearee ei al v. Samardhan et al, 5 N. W. P. R. 94. (6) Eaja Parichat v. Zalim Singh, L. R. 4 I. A. 159.
880 HEIE8 IN DIVIDED FAMILY. [B£.i,CH.nM^»-
AuTHOEnT— *Mit. Vyar. f. 55, p. 1, 1. 11 {see Cbap. IT. Sec. 3, Q. I).
Bemabk. — If there be no legitimate sons, daughters or daughter's sons, the illegitimate son of a Stldra saocee^s, taking precedence of i^ legitimate son's daughter, (a)
Q. 8. — A Mobat&r-widow of a man of the Mill castOj BQed his kept woman for a house belonging to her hasbaDd. The widow, while ber husband was alive, lived separately from him for about 12 years. Daring all this time she was supported by her own labour. It is not said that her cha* racter was bad. The man has two sons by the kept woman. Can the claim of the widow be allowed ?
A. — The man's sons by the kept woman are his heirs. They should inherit the whole property, and grant a suitable maintenance to the widow. — Ahmednuggur, March ISth, 1848.
AuTHoaiTT.— *Mit. Vyav. f. 65, p. 1, 1. II {see Chap. n. Sec. 3, Q. D-
Eeuarks. — 1. A Mohattlr- widow is a widow who had been married twice.
2. For the preference of the illegitimate son to the ?ridow, $» p. 84 88.
Q. 9. — A man, deceased, of the S&dra caste, had two sons, one legitimate and the other illegitimate. The former died, leaving a widow. The deceased had a house, and the ques- tion is5 who shall inherit it T
A. — The daughter-in-law h^ ^ right to a maintenance only. The illegitimate son will inl^erit the property of his father. — Ahmednuggur, October SOth, 1856.
Atjthorities.— (1) Mit. Vyav. f. 55, p. 1, 1. 11 (see Chap. 11. Sec 8, Q. 1); (2) f. 12, p. 1. 1. 16 ; (3) Mit. Ach&ra, f. 12, p. 1, 1. 4 ; (4) Vyar. May. p. 134, 1. 6; (5*) p. 136, 1. 4 {see Chap. 1. Sec. 2, Q. 11).
{a) Sarasuti v. Mmnu, I. L. B. 2 All. 134.
According to the law of the Lombards the legitimate sons excladed illegitimates, bat were compelled to provide them and their own iisters with portions.
ii.i,cn.iiA8,q.ll.] ILLEGITIMATE SON. 881
Bemaek. — The illegitimate son of a Sddra is entitled to half the share of a legitimate Bon, Dhodyela et al v. Malanaik, S. A. No. 243 of 1873, (a) in Bombay and Madras, (b) if there be a legitimate son, daugh- ter, or grandson. Failing these, he may inherit the whole. Mit. Chap. I. Sec. 12, pi. 1 ss. See Salu v. HaH, (c) Gopal Narhur v. Hunmani Ganesh Saffray, {d) Sarasuti v. Maina. (e)
Q, 10. — A Sudra, A, who was possessed of an open piece of groond suited for building purposes, died, leaving two sons. One of these, B, was a legitimate son, and the other, C, was either an illegitimate son, or else his foster-son. On the death of -4, will the piece of ground belong tp B alone, or will it belong to 0 ? If C is entitled to a share of it, to what share is he entitled ?
A. — In the S&dra caste both legitimate and illegitimate sons succeed to their father's immoveable property. Their father may divide it according to his pleasure, and assign what share he pleases to a foster-son. If the property has to be divided after the death of the father, then, according to the Sastras, the illegitimate son will be entitled to one-third, and the legitimate son to two-thirds of the whole property left by the father. — Ahmednuggur^ March 14f A, 1855.
AuTHOMTY.— Mit. Yyav. f. 65, p. 1, 1. 11 {see Chap. II. Sec. 3, Q.1).
Rehabks. — 1. The father may give an equal share to his illegitimate son if he likes. He could not give the bastard a greater portion than the other. (8ee above, p. 194; Mit. Gh. I. Sec. XII. para. 1.)
2. If 0 is a '* foster-son," and has not been formally adopted, he receives nothing.
Q. 11. — .4, a Tailors died, leaving a legitimate son, i?, wd an illegitimate son, 0, Are B and C entitled to equal
(a) Bom. H. 0. P. J. F. for 1874, p. 43.
(ft) 2 Str. H. L. 70.
(c) H. C. P. J. for 1877, p. 34.
W) I. L. R. 3 Bom. 273, 288.
(e) I. L. R. 2 All. 134.
382 HBIES IN DIVIDED FAMILY. [b£.i,ch.iia8,(HS.
shares of the moveable property and of the Watan of A, or can C claim no share at all ? On the death of B will 0 be tile heir to the Watan, or will it pass to the distant relatives of 4 ? Is -B competent to will away on his death-bed the Watan to distant members of his family^ to the prejudice ofO?
A. — Bis entitled to three-fourths of the property of i, and 0 to one-fourth. If B die, leaving neither a widow, nor a son, nor a daughter, his Watan and other property will pass to £7. If B and C have separated, then B is com- petent to transfer his property to his other relations, instead of to 0. — Ahmednuggur, December I3th, 1847.
AuTHORrriES.— (1) Vyav. May. p. 83, 1. 3 ; (2) p. 99, 1. 1 {see Auth. I) ; (3) p. 196, 1. 4 ; (4») Mit. Vyav. f . 55, p. 1, L 11 {see Chap. H. Sec. 8, Q. l);(5)f. 68,p. 2,1. 16:—
** Property, except a wife and a son, maybe given without prejudice to (the interest of) the family. Bat the whole estate may not be given if there is living issue, nor that which has been promised to anybody."
Bemark. — According to the Bemark to Q. 5, and the Answer to Q. 10, the illegitimate son would be entitled to one- third of the whole estate. It is, however, possible to interpret the expression " half a ehare," which Y&jilavalkya uses in the passage bearing on this point (Aatho- rity 4), in the sense also which has been given to it in the answer to Q. 11. For YijuaneS vara, when discussing the allotment of a "fourth of ft share" to a daughter of a person leaving sons, states that the pro- perty is to be divided first into as many shares as there are daagbters and sons. Then each daughter is to receive a fourth of such a share, and lastly, the rest is again to be divided equally amongst the brothers. (See Colebrooke, Inh. p. 287.) If the same principle is followed in regard to the *' half share" of an illegitimate son, he will, in case there is only one legitimate son living, receive a fourth of the whole estate. The same difficulty presents itself also in regard to the fourth share of an adopted son. (See Chapter II. Sec. 2, Q. IS and 17.)
Q. 12. — A man of the Sfldra caste died, leaving a widow and her son, and a kept woman and her son. The widow and the legitimate son of the man afterwards died, and the question is, whether the property of the deceased shonld
K.i,cH.ii.8.8,q.l2.] ILLEGITIMATB SON. 883
be taken by a separated legitimate member of his family, or by the illegitimate son?
A. — ^A woman who has not been married by the *' Lagna'* OT "Pat'' ceremony, but is kept by a man as a concubine from her childhood, is called a ^'Dasl," and a son of a " Dstei" can inherit the property of his father when there is no legal widow, son, daughter, or daughter's son. (a) In the present case, the illegitimate son appears to be the nearest heirof the deceased. The separated legitimate member of bis family cannot therefore claim his property.
Poona, October 9tk, 1857.
AuTHORiTT. — Mit. Vyav. f. 55, p. 1, 1. 11 {see Chap. 11. Sec. 3#
Qi).
BiVABE.^The illegitimate son would inherit the whole estate of his father according to the Mit&k8har& {see Q. 8), even though a widow of the latter might be living, but here the estate haying descended to the two sons jointly {see Q. 10), or to the legitimate 80D, subject to the illegitimate's right to half a share, the 6&3tri was Hotjastified in treating the case as if the father had died leaving only the illegitimate eon. In Baiza et al v. Sadu, S. A. No. 74 of 1876, there was a difference of opinion as to whether legitimate and illegitimate sons could be coparceners. In appeal by Sadu it was held that he the illegitimate and his legitimate half-brother were coparceners. (6) In the same case it was admitted in argament that the widow was entitled only to maintenance. In Madras, Mr. Ellis (2 Str. H. L. 66) thought that illegitimate sons of Stldras might take equally with legitimate sons, but this does not appear to be the accepted rule even there (t6u2. 70). Illegitimate sons by the same mother inherit inter se as brothers, Maynabai et al v. Uttaramet al, (c) and see infra, Section 11, Q. 4, and probably, but not quite certainly, from legitimate brothers on the footing of a joint family with rights of survivorship. {See Steele, 180.) But little difference indeed was at one time recognized between the legitimate and the illegitimate sons of Sddras. The Brahma Pur&na, quoted by the Yiramitrodaya, Tr.
(a) This is the doctrine of the Dattaka Chandrikft, Sec V. para. 31. For the Mit&kshar&, see below, Q. 18. {h) Sadu V. Baiza, I. L. R. 4 Bom. 37. (c) 2 M. H. C. R. 196.
884 HEIES IN DIVIDED FAMILY. [bk.i,ch.u^.8,q.14.
p. 120, says that dddras are incapable of having a son (patra) in the proper sense, as '' a slave male or female can have only slave offspring." (See above. Introduction, p. 82 ss, and Q. 1 and 8.) The sabsidiary sons in the order of their preference exclude those lower in the scale (Mit. Ch. 1, S. 11 ; N^rada. P. II. Ch% XIII. pi. 22, 25, 33, 49). In the answer to Q. 11 above^ the d&stri assumes that they may form a united family. On the other hand, Macnaghten, 1 H. L. 18, seems to rank the illegitimate as a coheir only with a daughter's son, though he recognizes his right to a half share, where there are legitimate sons. In Bengal it has been said by Mitter^ J., in Narain Dhara v. Bakhal Oairit (a) that only the son of a ^ddra, by his (unmarried) female slave has any right of .inheritance, and the Mit&kshar&, Ch. I. Sec. 12, is cited in support of this doctrine. A kept woman is for this purpose however regarded as a slave. (8eeDa,tt. Mim&m. S. 4, pi. 76; Steele^ L. 0. 41 ; 2 Str. H. L. 68.) In the case of Rahi v. Govind, {b) the position of the illegitimate son is learnedly discassed^ but not with reference to this particular question.
Q. 13.— A SAdra, who held a Pdtilkl Watan, died. He had a daughter by his ^' Lagna'^ wife, and a son by his kept woman. Which of these is the heir ?
A. — The property of the deceased should be divided bertween the daughter and the illegitimate son in the propor- tion of two-thirds to the daughter, and one- third to Uie son.
Poona, September ^th, 1852.
AuTHORTTY.— Mit. Vyav. f. 55, p. 1, 1. 11 ($ee Chap. II. Sec. 3, Q. 1 ; Stokes, H. L. B. p. 426).
Q. 14. — A Rdjput brought a woman into his honse. It is not known whether she was legally married to him or not, either by way of ^'Lagna'' or "'P&t.'' She has two sons and a daughter. The Rajput and she quarrelled; the conse- quence of which was that she was allowed to live separately from him, he continuing to support her. He subsequently brought another woman into his house. It cannot be ascer- tained whether this woman either was married to him or not.
(a) I. L. R. 1 Cal. 1, 5.' {b) I. L. R. 1 Bom. 97.
Bi.r,cH.ii^.8,<i.l5.] ILLEGITIMATB SON. 386
He had three sons and a daughter by this woman. Some people say that np to the time of his death, he expressed his will that the property should be given to one of the sons of the first woman, but the others afl5rm that his last wish was to give the whole property to all the sons of the second woman. Who should be considered the heir in such a case?
A. — ^Two slave women of the bAdra caste have equal rights, and when both of them have sons, the property should be equally divided among the sons and mothers. If the woman first kept by the deceased was, together with her sons, dismissed by him owing to suspicion regarding her character,, she cannot claim any share of the property. The second woman and her sons should be treated as heirs. Ahmednuggur, February 21s^, 1847.
AuTHOKiTiEs.— (1) Mit. Vyav. f. 65, p. 1, 1. 11 (see Chap. XL Sec. 3, Q. 1); (2) f. 5, p. 1, 1. 6; (3) f. 51, p. 1, 1. 3 and 7; (4*) Vtramitrodaya f. 172, p. 2,1. 13:—
' " But wben the father divides his estate during his life-time, he oaght not to give a greater share to one of his sons, nor should he disinherit any one of them without sufficient reason." {See the Commentary below. Book II. Chap. I. Sec. 2, Q. 5.)
Remarks. — 1. The two kept women themselves have no right to inherit from the deceased, but can only claim maintenance. See Q. 4.
2. Their sons inherit equally after the father's death, but only in case he was Sftdra. See Q. 1 and 2.
3. There is no passage in the law books which proves that a concubine's sons lose their rights on account of their mother having connexion with, other men than their father after their birth.
4 In case the deceased was a S^dra, he had no right so to bestow his property as to exclude any of his sons from the inheritance, if they were not disabled to inherit by " physical or moral defects." Auth. 4. 5ee also Ch. YI.
Q. 15. — A Sudra has a grandson, the son of his legitl- tnate son. He has also an illegitimate son. The S&dra^ when he was alive, bestowed a house and some other pro- 4Qn
886 HEIRS IN DIVIDED FAMILY. [bk.i,ch.im4,^6.
perty on the illegitimate son. Should this be considered a legal gift ?
A. — ^A father may allow his illegitimate son a share eqaal to that which he assigns to his legitimate son. If the parti- tion takes place after the father^s death, the illegitimate son can claim only one-half of that which the legitimate son re- ceives. This is the established rule of the Sdstra. The ille- gitimate son therefore should be allowed to enjoy whatever his father may have bestowed upon him.
Khandesh, September 2ith, 1852.
AuTHOEiTT.— Mit. Vyav. f. 65, p. 1, 1. 11 {see Chap. n. Sec. 8,Q.l)
Bemabk.— The gift will, however, be valid only if the illegitiiiuito son has not received more than the legitimate son's child did.
• Q. 16.— A PAtil adopted a son. Afterwards a son was bom to him by a wife who had been married before he mar- ried her. Which of these will be his heir ? If after he had adopted a son, a son was bom to him by his wife who was a virgin when he married her, which of the two sons will be his heir ?
\ A. — The son of her who was a virgin when the P4til married her, has a greater right than the adopted son, and the adopted son a greater right than he who was bom of a twice-married mother.— -DAorwar, December 3rd, 1858.
AuTHOKTms.— (1) Mit. Yyav. f. 53, p. 2, 1. 6 ; (2*) f. 55, p. 1. 1- H (tee Chap. II. Sec. 3, Q. 1) ; (3*) Vyav. May. p. 108, 1. 2 (we Ch»p. n. Sec. 2, Q. 16) ; (4*) p. 112, 1. 2 :—
" Prom this text of Vasishtha : When a son has been adopted, if » legitimate son be afterwards bom, the given son takes a fourth part (of a share)." Borradaile, p. 76 ; Stokes, H. L. B. 66.
Rek ABKS.—l. If the deceased was a fiftdra, his son begottwi on a PanarbhQ (twice-married woman) will, according to the Hindu L»v< inherit one-half of a son's share {see Auth. 2), since a second marriage i3 nail, and the offspring consequently illegitimate, according to the Sistras. Manu, V. 162, says ** Nor is a second husband allowed to a virtuous woman." She must not " even pronounce the name of another man,'* ibid. 157. According to Manu IX. 65, " Nor if the
Bi.i^H.u,s^,ql6.] ILLBQinMATB SON. 887
numriage of a widow even named in the laws." To the same effect are the passages in the G^eral Notes I. and YI. That a remarriage is not allowed by the Mitiskharft is stated by Golebrooke, 2 Strange, H. L. 399; and Strange himself pronounces against its l^^lity, 1 Strange, H. L. 242. The Nirnayasindhn quoted beneath (Cli. II. Sec. 8, Q. 6) declares that the remarriage of a once-married woman is not allowed. The Viramitrodaya quotes the Adipurftn to the effect that the remarriage of a woman once married is along with the killing of kine, the partition with specific deductions, and the niyoga» dis« aUovred in the present (Ealiyuga) age. (a)
Bat that remarriages, though disapproved, were practised at tho time of the composition of Manu*s Code, is plain from Manu IX. 175, 176. A woman thus associating with a second husband is dis- tinguished by 'Y&jnavalkya (I. 68) from the avairini who deserts her husband and cohabits adulterously with another man. The son of the twice-married woman was indeed under the older law assigned a place in the scale of sons above that of the adopted son (Y&jn. II. 129 ss, cited in Mit. Ch. I. Sec. 1 1, pi. 1), but re-marriage having become illegal amongst the higher castes, the illegitimacy of the offspring followed, until legislation restored the widow's capacity. Amongst the lower castes the remarriage of widows and divorced wives has always been common. The ^stri, in answer to Q. 37 of Sec. 4, has even said that the ^stras sanction a p&t marriage. This is contradicted in the next answer, but caste custom might itself be regarded as approved by the S&stras according to the often repeated formula (Manu YIIL 41), and on this ground probably it has been recognized in most cases, as may be seen in Sec. 6 b below. In Ch. lY . b, Sec. 4, there is a case in which the ^ftstri pronounces a woman's son, by her first marriage, heir to the property which she had inhe- rited from her second husband. The children by a p&t marriftge are generally regarded as legitimate, where the marriage is allowed. {See Steele's Law of Caste, 169. See also Manu V. 162, 157 ; IX. 175, 176; Greneral note at the end of translation of Manu, I. and YI.)
2. By Act XV. of 1856, the son of a Punarbhd is legitimized by the sanction given to the second marriage of his mother. The offspring of an adulterous intcrcoarse even amongst oQdras has no right of inheritance. See Datti Parisi Nayudu et al v. Datii Bangaru Nayudu et al (6) and the case of Bahi v. Qovind (c) in which
(a) Tr. p. 61.
(h) 4 M. H. 0. R. 204.
(c) I. L. B. 1 Bom. 97. ,
388 HEIBS IK DIVIDED FAMILY. lbk.i»ch.im^i^8.
the Uw if folly discnssed; iee also Viramuihi Udayana ▼. Singa- ravelu, (a) ; $ee too Narayan Bharthi y. Laving Bhatihi, (b) The Bame cases however show that the illegitimate son is in all ca^es entitled to maintenance. Nor has the offspring of an incestnous intercourse between a £Either*in*]aw and daughter-in-law any rights of inherit- ance, (c)
3. If legitimate sons are bom to a man after he has adopted a son, the adopted son inherits a fonrth of a son's share on the demise of the father (Auth. 3).
Q. 17. — A deceased person has some relations who arc separate in interest. He has also a daughter by his " Lagna'' wife, and a son by his *'Pat'' wife. Who will be the heir of the deceased ?
A. — The relations^ whose interests are separate^ have no title whatever. The daughter and the son should be allow- ed equal shares of the property. — DharwaVy 1846.
AuTHOBiTT.— *Mit. Vyav. f . 65, p. 1, 1. 11 (see Chap. II. Sec. 3, Q. 1).
Remabks. — 1. According to the Hindu law, apart from custpmary exceptions, the son of a Punarbhtl (remarried widow) is illegitimate, and consequently inherits, if there be living legitimate issue of bis father, half a share. See K&ty&yana in Smf iti Cbandrik&, Ch. V. p. 10; 2 Str. H. L. 68, 70; Coleb. Dig. Bk. V. Text 174.
2. Begarding the legalization of widow's remarriages, see Q. 16-
3. Children by p&t are equally legitimate with those by msrnage, according to Col. Briggs, Steele 169. See infi-ay Ch. II. Sec. 8, Q. 6.
Q. 18. — A man married awoman^ who had been previously married^ and by her had a son. At his deaths can the son of such a wife inherit his immoveable property ?
il.— If a man died leaving neither son nor daughter by the wife whom he married as a virgin, nor the son of snch a daughter, the son of the previously married wife will saccec(l to his immoveable property. — Dharwar, Jvly 26<i, 1850.
(a) I. L. R. 1 Mad. 306. (6) I. L. R. 2 Bpm. 140. (c) A M. H. C. R. 204, supra.
BLi,cH.u,8.4,Q.2.] GEANDSONS. 389
AuTHOKiTT.— Mit. Vyav. f. 65, p. 1, 1. 11 {see Chap. II. Sec. 3, Q. 1).
Remarks. — 1. Thia stamps him as illegitimate in the opinion of the ^sCri; and B&lambb&tta, commenting on Mit. Ch. II., Sec. \, p. 28, speaks of twice-married women and others not considered as wives espoused in lawful wedlock.
•2. According to the Hindu Law, the son befng illegitimate, will Bacceed only in case the deceased was a Sddra. See 2 Str. H. L. 65, 68.
3. Begarding the legalization of the marriage of a Hindd widow, see Act XV. of 1856. See also Q. 16.
SECTION 4.
GRANDSONS.— LEGITIMA.TB, NATURAL OR ADOPrED.
Q. 1.— A man's son died, leaving a son. The man him- self also died afterwards, leaving a widow. The question is, whether the widow or the grandson is the heir ? If the widow is the heir, another question is, whether she can dispose of the property during the lifetime of her grandson ?
A, — A grandson has an unquestionable right to the pro- perty of the grandfather. This right is termed in law the '^Apratibandha daya.^' As there is a grandson, the widow cannot claim the property of her husband, and she has no right to sell it. — Suraty June hth 1857.
AuTHOEiTiES.— (1) Mit. Vyav. f. 44, p. 2, 1. 13 :—
" The wealth of the father or of the paternal grandfather becomes the property of his sons or of his grandsons, in right of their being bis sons or grandsons : and that is an inheritance not liable to obstruc- tion." (Colebrooke, Mit. p. 242 ; Stokes, H. L. B. 365.)
(2) Mit. Vyav. f. 50, p. 1, 1. 7.
Q. 2. — A father-in-law caused his daughter-in-law to adopt a son, and afterwards he died. Who should be con- sidered the heir of the deceased, the adopted grandson or the widow ?
A— The adopted grandson. — Tanna, November Ibth, 1851.
390 HEIB8 IN DIVIDED FAMILT. [BK.i,CBaiA64,<li.
AuTHOBiTiis.— (1) Mfc. Vyav. t 60, p, 1, 1. 7 :—
" For the ownerehip of father and son is the same in land, which was acquired by the grandfather^ or in a corrody, or in chattels (which belonged to him).*' (Colebrooke, Hit. p. 277 ; Stokes, H. L. B. 391.)
(2) Mit. Vyav. f. 53, p. 2, 1. 6 ; (3) Manu IX. 141.
Bemabk.*— A great-grandson in the male line precedes a daughter's ■on, Oooroogohvndo y. Hvrreemadkdb, (a)
SECTION 5.
ILLEGITIMATE SONS' SONS.
Q. 1. — A man of the S&dra caste has a daughter^ a sepa- rated nephew^ and a grandson^ who is son of his illegitimate son. Which of these is the heir ?
A. — The daughter will have one-half^ and the other half should be given to the illegitimate grandson. The separated nephew is not entitled to anything at all.
Ahmednuggur, September llth, 1849.
Authorities.— (1) Mit. Vyav. f. 55, p. 1, 1. 11 (see Chap. 11. Sec. 3, Q. 1) ; (2*) f. 44, p. 2, 1. 13 (see Chap. II. Sec. 4, Q. 1).
Remaek.— -The grandson inherits the half of a share to which bis father was entitled.
SECTION 6.— WIDOW, (b)
ii.— MARRIED AS A VIEGIN. Q. 1. — A man, who used to receive from Governmental! allowance called *' Toda Gr&s/' died without issue. He has left a widow. Should the allowance be paid to her as it was
(a) I. Marsh. 398.
(h) The Smriti OhandrikA, Ch. XII. para. 31, relying on a passage of dankha (see D&ya-Bh&ga, Ch. XI. Sec. 1, para. 15), places tbe widow of a reunited coparcener after the brother, father, and mother. The Vyav. May. Ch. IV. Sec. 9, p. 24, adopts the same construction, but in this case it follows Madan in giving to the mother precedence over the father. These rules seem to be arbitrary. Brihaspati (Smriti Chan. Ch. XII. S. 5, para. 38). quoted on the same subject, placet the widow next after the childI^en.
«j,chji^6a,^.] widow — ^MABBIBD AS VIBGIN. 391
paid to her husband 7 Can she claim any property in addi- tion to the Palla or Stridhan which she may have received at the time of her marriage 7
<^.— When the deceased man is a separated member of a &mily^ and when he has left no children^ his widow will be tbe heir to his property. If she has received any Strtdhana or Palln on the occasion of her marriage^ it cannot be con* sidered a part of her husband's property. It is a separate and peculiar property) and its possession can form no obstacle to any right of receiving a share in her husband's property*
Burat, February 26th, 1848.
AuTHOBmES— (1) Vyav. May. p. 134, 1. 4 (eee Anth. 2) ; (2») Mit. Vyay. t 65, p. 2. 1. 1 (see Ohap. I. Sec. 2, Q. 4).
Rexaek. — See Pramjiwandaes v. Devhivarhai, (a) and the Introdac* tion, Sec. 3 B (4), and Sec. 11, pp. 88, 299, 296.
As to payment of debts to the widow empowered or directed to adopt, see Bamundase v. Muset Tarinee, {b) and for the case of a widow, the real heir, and another person holding a certificate of administration, see PurBhoiam v. Ranchhod, (c)
That a widow represents the estate as between her snccessors and strangers, see the Introd. p. 96, and Nand Ktwar v. Radha Kwir%.{d)
A money decree having been obtained against a man and executed against his widow as his representative, it was held that after the widow's death the daughter could not recover the property sold in execution from the purchaser, (e)
The presumptive heir cannot maintain a suit for a declaration of his right. See Oreeman Singh v. Wahari LaU Singh, (/) where it is
(a) 1 Bom. H. C. R. 130.
(b) 7 M. I. A. 169.
(e) 8 Bom. H. C. R. 152, A. C. J.
id) I. L. R. 1 All. 282.
(e) Hari Vydiandth&yanna v. Minakehi Ammah I. L. R. 5 Mad. 6, referring to The General Manager of the Rdj Durbhunga v. Maharaja Coomar Eamaput Singh, 14 M. I. A. 605 and leham Chunder Mitter v. Bukth Mi Soudagun Marsh. B. 614. In a note to the report reference is made to Zalem Boy v. Dal Shaheciib. 167. ! (/) L L. R. 8 Cal. 12*
392 HBIBS IN DIVIDED FAMILY. [Bi.i,CH.ii,8.6A,q.2.
said that the Specific Relief Act (I. of 1877) § 43, makes no difference, as it refers only to vested rights.
A widow's refusal to adopt, according to her husband's directions, is no ground of forfeiture of her rights of inheritance. Uma Sunduri Babee v. Sourobinee Dahee, I. L. R. 7 Calc. 288.
In Gujar&th caste custom in some cases gives the mother prece- dence over the widow, as ex. gr, in the cases in Borr. C. Rules, MS. Bk. G, Sheets 42, 50. See above, Introd. p, 157.
Careful provision is made by the rules of most of the castes in Gujer&th for securing at marriage the Pallu of the bride, whether consisting of gifts from her own family or from her husband.
As to a family custom of excluding childless widows from inherit- ance differing from the general custom of the country, see Rumc Id BhAtnj et al v. Purush Munnee, 3 Mori. Dig. 188, and note 2. (a)
Q. 2. — Pour brothers became separate. The youngest of them was a minor. The eldest brother therefore took charge of the minor's share. The minor subsequently died, leaving a widow. Can she claim her husband's share ? The minor has passed an agreement to the eldest brother that he (the eldest brother) should take charge of his, the minor's, share, whenever he should live separate from him. Does this operate in any way against the right of the widow ?
A. — The share of the minor was set apart, and his wido^ is therefore entitled to it. The minor mast be considered as separated, though he chose to live with his eldest brother. Dharwar, August 28fA, 1855.
Authorities.— (1) Vyav. May. p. 134, 1. 4 (we Auth. 2); (2»)f. 55, p. 2, 1. 1 («e6 Ch. I. Sec. 2, Q. 4).
Rema&k.— A wife is, under the Hindu Law, in a subordinate sense, a co-owner with her husband ; he cannot alienate his property or dis- pose of it by will in such a wholesale manner as to deprive her of maintenance. Held therefore where a husband, in his lifetime, made a gift of his entire estate* leaving his widow withont main- tenance, that the donee took and held such estate subject to her maintenance, {h)
{a) With this may be compared the privilege allowed to the noble class in Germany of making special laws by a family compact.
(6) Jamna v. Machul Saline, L L. K 2 All. 316. fifeealso IfwbaM- bat T. Mahadeo Naraymi, I. L. R. 6 Bom. 99* Comp. abovd, p. 208.
r
Bi.i,cH.ii^6A,q.5.] WIDOW — MAREIED AS VIRGIN. 393
Q. 3. — A woman's husband and father-in-law are dead. She has possession of their property. Should her right of inheritance be recognized ?
4.— Yes.— DAaru;ar, 1845.
Atjthobity.— *Mit. VyaV. f. 56, p. 2, 1. 1 {see Ch. I. Sec. 2, Q. 4).
Rbmabk. — ^The widow inherits under the text quoted above, only in case her father-in-law died before her husband. Regarding the other alternative, «eeCh. II. See. 14; and Introd. p. 126 ss.
Q. 4.— A man died. His property is in the possession of another man. The deceased has left a widow and a daughter. The former has filed a suit for the recovery of the property, omitting the name of the latter. Can she alone olaim the property ?
-4.— The widow has the right to the property of her hus- band. She can therefore claim it on her own account, omit- ting the name of her daughter. — Surat, Januarj 24th, 1853.
AuTHOEiTiBS.— (1) Vyav. May. p. 134, 1. 4; (2) Mit. Vyav. f. 66, p.2.l. l(«eeOh.I.Sec. 2, Q.4).
Q. 5. — A man, named Bhagavftndlls Devakar, separated from his brother. He received his share of the landed pro- perty, and had his name registered in the records of Gov- ernment as the owner of it. On his death, his wife, named Amrita, got her name registered in the records of Govern- ment as the owner of the land. She then leased 8| Big&s of land to her nephew, Khushal Raghun&tha. He accord- ingly obtained possession of the land. He subsequently set up a claim to the land, alleging that it was in his possession because he was the nephew of Bhagavind&s. The widow, Amritft, wishes to recover the land from her nephew. Can she do so?
^.— The widow of the deceased Bhagav&ndds has a right 50h
394 HBIES IN DIVIDED FAMILY. [bk.i,ch.ii,8^a,(^6.
to the land. Her nephew cannot claim it. Amrita may recover it from him.— Broach, September 8tt, 1855. AuTHOKirr.— Mit. Vyay. f. 66, p. 2, 1. 1 {see Ch. I. Sec. 2, Q. 4).
Q« 6. — There were four brothers. They divided their ancestral property among them^ and separated. Afterwarda one of the brothers died. His property passed into the hands of his widow. A brother of the deceased has filed a suit against the widow, and wishes to impose the following conditions upon her: — That she should not dispose of or waste the property in her possession, and that if she desirefl to have a maintenance settled upon her, she should give up all her property in consideration of an allowance. What are the rules of the Sdstra on the subject?
-^^ — If the brothers had not separated, the widow would have been entitled to a maintenance only. The husband of the widow having separated, before his death, from his brother who has filed the suit against the widow, his widow is the heir. The brother cannot ckim the right of inherit- ance. The widow cannot dispose of her immoveable pro- perty unless she be placed under a great necessity. Rutnayherry, January 11/A, 1848.
AuTHOKiTiES.— (1) Vyav. May. p. 136, 1. 4; (2) p. 135, 1. 2:-
" As for this text of KAty&yana :— After the death of the husband, the widow, preserving (the honor) of the family, shall obtain the share of her husband so long as she lives ; but she has no property (therein to the extent of) gift, mortgage, or sale : it is a prohibition of a gift of money, or the like, to the Vandi, (a) Ch&rana, (6) and the like (swindlers). But a gift for religious objects (not visible, i.e. the attainment of spiritual benefits) and mortgage, or the like, suitable (i.e. with a view) to those objects, may be even made.'* (Boriadaiie p. 101 ; Stokes, H. L. B. 84).
(3») Mit. Vyav. f. 65, p. 2, 1. 1 {eee Ch. I. Sec. 2, Q. 4).
Kemikks.— iSee Introd. p. 299. A Hindu widow must, if she can,
(a) A Vandi is a wandering minstrel (Bhita). (6) Chirana, a juggler (Kolambi).
Bi.f,CH.ii^6A,q.7.3 WIDOW — MAEETED AS VIRGIN. 395
pay a debt of her deceased husband even though barred by limUation. She is justified in aliening part of the estate for this purpose: Bihnla Nam 7. Parbhu Hari. (a) A widow's needless alienation will subsist daring her own life. Pragdas v. Harikishen. (b)
At Allahabad it Las lately been said that a widow's power of alien- ation for spiritual purposes is limited to those by which her husband, as distinguished from herself, will benefit, (c) For this reference is made to The Collector of MnsuVpaiam v. Cavaly Vencata NmTain' appfl^. (d) In Bombay her right, though limited, is not so narrowly restricted by the Vyav. Maytlkha, Chap. IV. Sec. VIII. para. 4; and the Courts have allowed her a reasonable liberty of disposal for pious objects, {e)
In Kameshwar Pei'shad v. Run Bahadur Singh (/) the Judicial Committee say the principle laid down in Hunoornan Pei'saud v. Mt. Bibooee Munrnji is applicable to~a, alienations by a widow of her estate of inheritance ;— ^, transactions in which a father, in deroga- tion of the rights of his son, under the Hit. law has made an alien- ation of ancestral family estate.
Q. 7. — ^Two persons, A and B, inherited a house in equal shares from a common relation. A then mortgaged bis share of the house, and died. After his death, 1^ redeemed the mortgage, and transferred the whole house to his creditor, as security for a debt. After some time, B paid off this debt, and regained possession of the house. C, the widow of 4, then demanded her husband's share of the house from B, who objected to give it up, on the ground that he had paid off the debt with which A had left the house, and on the ground that 0 had for many years lived separate from her husband A. G has made over her share of the house to a person, in consideration of money advanced by him for her support. She has no male issue. Is she, under these cir- cumstances, entitled to recover a half of the house from B ?
(a) I. L. R. 2 Bom. 67.
(b) 1. L. R. 1 All. 503.
(c) Pman Dai v. Jai Narain, I. L. R. 4 All. 482. ((J) 8 M. I. A. 620.
(a) See above, Introd. pp. 99, 300.
(/) I. L. R. 6 Cal. 843 ; S. C. L, R, 8 1. A 8.
396 HBIES IN DIVIDED FAMILY. [Bi.i,cH.n,».6A,q.7.
A. — O'b husband was possessed of one-lialf of the house which he mortgaged. When B redeemed ^I's half of the house^ C did not object to his doing so. Her present claim^ therefore, is inadmissible. If her conduct is good^ and if she was abandoned by her husband^ and if she is desirous of recovering her husband's share of the house^ she must pay to B whatever he has paid on account of the half of the house^ with interest. According to the S&stras^ 0 has no right to make over the half of the house, even for her own maintenance, without paying her husband's debts, (a) C^s right of inheritance cannot be set aside during her lifetime, even though B may have performed the funeral rites of the deceased A. — Ahmednuggur, July 9th, 1847.
AXJTHORITIBS.— (1) Mifc. Vyav. f. 20, p. 1, 1. 2; (2) f. 20, p. 2, 1. 11; (3) f. 46, p. 1, 1. 5; (4) f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4); (5) f 56, p. 2, 1. 8 ; (6) f. 69, p. 1, 1. 15 ; (7) f. 12, p. 2, 1. 14; (8)f. 20. p.2.1. 11:-
" He who takes the inheritance must be made to pay the debts (of the person from whom he inherits)." (Stokes, H. L. B. 56.) (b) (9) Vyav. May. p. 183, 1. 8.
Revabks. — 1. If the house was divided, the widow inherits her hus- band's share. See Authority 4.
{aj So in Lakshman v. Satyabkdmdbdif I. L. R. 2 Bom. 499, per Sir M. R. Westropp, 0. J. (b) See supra, Introd. p. 262 ; and infra, Bk. U. Introd. Sec. 7 A.
1 a (2). By the 11th Article of Magna Charta the widow's dower was freed from ohargeability for the husband's debts, the payment of which out of his estate is further postponed to the maintenance of minor children according to the father's condition, and to the fulfil- ment of the service or terms on which the property was held by the deceased. The dower was looked on as secured by a contract prior to the debts, giving to the widow an independent interest in the hus- band's lands. Under the Mahomedan Law the doweress ranks pari passu, it is said, with other creditors ; see Mir Mahar Ali v. Amanij
2 Ben. L. R. 3o7, and Musst. Bsbee Bachun v. Sheikh Hamid Homin, 14 M . I. A. 377- She has not a special lieu constituting an interest in immoveable property; Mahabubi v. Amina, Bom. H.C. P. J. F. for 1873, p. 34. A Jewess claiming under a deed was preferred to sub- sequent creditors in Sookhlal ▼. Musst, Rdheema, 2 Borr. R. 687.
Bi.i,CH.ii,ii.8A,q.8.] WIDOW — MARRIED AS VIRGIN. 397
2. Her silence, at the time when her brother-in-law paid off the mortgage, does not affect her rights, according to the Mit^ksbarft.
3. She will have to refund the money which her brother-in-law paid.
Q. S.^An Indmdar died without male issue. Is the iD&m-Iand which he held continuable to his widow^ accord-^ ing to the Hiudft Law ? If a HindA should die, without a SOD, leaving descendants only through his daughter, will Ills private property fall to them, or to his other relations, or to his widow ? Are the rules on these subjects applic* able to all castes ?
A, — If a man dies without male issue, and if he is not a member of an undivided or reunited family, his faithful wife becomes his heir. The property of a deceased person will fell first to the widow, and when there is no widow, to the deceased's daughter. The widow has a preferable claim to all other relatives. These rules are applicable to all castes of the Hindfis. — Poonai October 6th, 1849.
AuTHORTriES.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 2) ; (2*) Mit. Vyav. f. 55, p. 2. 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remabks. — ^There are no special rales about In&m-land in the HindA Law Books. The Privy Council, in Bodhrav Hanmant v. Narsingrav, (a) held that In&m villages granted to a man and his male heirs are not distinguishable, according to the law of the Southern Mar&th& Country, from ordinary ancestral estate, and are divisible amongst the grantee's heirs. See below. Sec. 13, Q. 10, as to the construction of grants. The same was held as to a defigat watan in Kddapd v. Adrashyapd, (6) and that a vritti or hereditary office is generally partible, see Steele, L. C. p. 41.
2. The inamdar in relation to the tenants of the property may occupy the position of a complete proprietor, or of a mere alienee of the land tax, or of a grantee of a lordship over mir&sd&rs holding rights of permanent occupancy subject only to reasonable rates or rents. And in different parts of his man jr ho may have different rights under the same grantor prescriptive title, owing to the exist-
(a) 6 M. I. A. 426.
(6) R. A. No. 30 of 1874 ; Bom. H. C P. J. F. for 1876, page 182.
398 HBIBS IN DIVIDED FAMILY. [BK.i,cH.ii,i^i,(^
ence of rights (as to hold at an inyariable rent) known or presumed to have been prior in origin to his own. (a)
3. Tho Vatandar Joshi (astrologer holding an hereditary office) of a village may recover damages from an intruder who usarps bis fanctious and takes his fees. This is bo even though the fees be not precisely fixed in amount, provided only that some reasonable fees mnst be paid by those entitled to the Joshi*s ministrations. (6) The presnmption is that a Vatandar Joshi is entitled to officiate in the case of any particular family ; but though damages may be awarded for an intrusion an injunction will not be granted such as to prevent a family from using the services of a rival functionary. The position of a village priest or astrologer being thus recognized as one of public interest to the Hindu community, the holder of it can of coarse be constrained if necessary to perform the duties of it when properly called on. In the case of religious or charitable trusts, too, any devotees or beneficiaries may take proceedings for enforcing the duties resting on tho incumbent or the trustees, subject to the con- sent of the Advocate General or his substitute (usually the Collector of the district) under Sec. 539 of the Code of Civil Procedure, (c)
4. In Narain Khootia v. Lokenath Khooiia (d) it was apparently held by the Depnty Commissioner that a religious grant made by a former Mah&r&jd of Chhota Nagpore could be resumed at will by his successor in the exercise of a royal or quasi- royal authority. The resumption of grants by native rulers was very common, as Sir T. Munro shows; {e) though not of religious grants in Western India. (/) The decree of the Deputy Commissioner, however, was reversed by the High Courj) of Calcutta on the ground that impartibility of the
(a) Praiaprav Oujar v. Bayaji Ndmdjiy I. L. R. 3 Bom. 141, referring to Lakshman v. Ganpatrav, Special Appeal No. 344 of 1876, and Vishnubhat v. Babaji, B. H. C. P. J. 1877, p. 146. (At p. 142 of the Beport the last case is twice mentioned by mistake for the former.) See also Parahotam Keskavdds v. Kalydn BayjU I. L. R. 3 Bom. 348.
(b) Vithal Kri^fhna Joshi v. Anant Ramchander, 11 Bom. HC B. 5, quoting Sitardmhhat v. Sitaram Ganesh, 6 Bom. H. C. R. 250, A. C.J ; Baja valad Shevappa v. KrHshnabhat, I. L. R. 3 Bom. 232.
(c) See Radhabai v. Chimnaji, I. L. R. 3 Bom. 27. {d) I. L. R. 7 Cal. 461.
(e) Sir T. Munro, by Sir A. Arbuthnot, vol. L p. 152, 154. (/) The CoUedor of Thana v. Hari Shitaram, I. L. R. 6 Bom. 546; Elph. Hist, of Ind. Bk. H. Ch. II. p. 76, 78 (Srded.)
BLi,cH.ii,8.6A,q.ll.] WIDOW — MARRIED AS VIRGIN. 399
raj did not make it inalienable as to grants of land in perpetuity. {See Introd. pp. 159, 186, 192.)
Q. 9. — A man of the Bur Ad caste (d) had received a house as a mortgage, before his death. He lived separate from his father. Should the house be made over to his widow or his father ?
A, — Whatever was gained by the man without making nse of his father's property will pass to his widow. If the &ther and his sons are not separate, then the common pro- perty will pass into the hands of the father. AhmednugguTy August 21s^, 1848.
Authorities.— (1) Vyav. May. p. 134, 1. 4 and 6 {see Auth. 4) ; (2) p. 136, 1. 4 ; (3») p. 153, 1. 2 {see Chap. I. Sec. 2, Q. 1); (4*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Remark.— Regarding the definition of * separately acquired pro- perty,' see Partition, Book II.
Q* 10. — ^Has the father or the widow of a deceased person a preferable title to succeed to his property ?
A. — ^If the deceased lived separately from his father, his widow is his heir ; but if he had not separated, his father will succeed. — Poona^ June 5th, 1846.
Authority.— ♦Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remark.— But the wife inherits, also, property which the deceased may have acquired separately. See the preceding question.
Q. 11. — Two brothers separated. One of them and his son, after separation, died. Does the property of the deceas- ed pass by right to his daughter-in-law or the surviving brother ? If it goes to the latter, can the former have a claim to maintenance ?
A. Should the daughter-in-law be a woman of good character she will sticceed to her husband's, and consequent*
(a) The Burfids are basket-makers.
400 HEIBS IN DIVIDED FAMILY. [bk.i,ch.u,8^a,^IS.
ly to her father-in-law^s, estate. If she be not a woman of good character, her father-in-law's brother takes the wbole property of his deceased brother^ and gives his daaghte^ in-law a reasonable sam for maintenance.
Ahmednuijgur^ September 7ih, 1848.
AoTHORiTiEs.-^l*) Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4); (2) Vyav. May. p. 13t, 1. 4 (see Auth. 1); (3) p. 133. L 2; (4) p. ISi, 1. 6 ; (5) p. 137, 1. 3 ; (6) p. 136, 1. 7 ; (7*) p. 133, 1. 7 :-
.... by reason of this text of K&tyayana :— " Let the widow Booceed to her hasband's estate provided she be chaste ; and in de- fault of her, the daughter inherits, if unmarried.'*
" Anaong the married ones, when some are possessed of (oilier wealth) and others are destitute of any, these (last) even will obtain the estate)." (Borradaile, p. 103; Stokes, H. L. B. 86).
Rbmaek.— The daughter-in-law will inherit only if her father-in-law died before her husband. If she be unchaste, her issue next inherit in her stead, and on failure of issue, the father-in-law's brother. See below, Bk. I. Oh. VI. Sec. 3.
Q. 12.— Two uterine brothers lived as an undivided family. One of them died, leaving a widow. Afkerwards the other also died, leaving a widow. Can both these widows inherit the property of their respective husbands ?
A, — As the property was acquired by the ancestors of the deceased men, and as the family was undivided, the widows can inherit the shares of the property belonging to their re- spective husbands. — Surat^ March 3l«<, 1845.
Authority not quoted.
Remark.— The widow of the brother who died last inherits ; the other has a claim to maintenance. See the next Question, and the Authorities there quoted.
Q. 13. — Two brothers are either united or separated m interests. When one of them or both die, will their widows be entitled to their property ?
A. — If the fiamily was united in interests, the property of a deceased brother falls to the surviving brother. Upo^
I
BK.i,CH.n,a6A,q.l5.] WIDOW — MARRIED AS VIRGIN. 401
the death of the latter, his wife becomes his heir. The wife of the one who died first is only entitled to a maintenance. If the brothers were separated before their death, their wives inherit the property of their respective husbands.
Tanna^ December llthj 1858.
AuTHORiTiBS.-— (1) Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2» Q. 4; (2) Vyav. May. p. 136, 1. 4» (see Chap. I. Sec. 2, Q. 11).
Q. 14. — Two Hindft brothers lived together. The elder of them died, leaving a widow. The younger also died, leaving a widow. The question is whether the widow of the brother who died first or the widow of him who died after- wards should be considered the heir ?
The widow of the younger brother is a minor, and there are her sister-in-law and mother ; which of these will be her guardian ?
A, — The widow of the last deceased brother is the heir. The mother has the right to be the guardian of the widow of the younger brother, who is a minor.
Surat, October 22nd, 1857.
Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4); (2) f. 12, p. 1, 1. 4 ; (3*) Vtramitrodaya, f . 194. p. 2, 1. 4:—
"And thus N&rada says : — AHier the death of the husband (the nearest relation belonging to) his family has power over his childless wife; such a person is competent to appoint her (to a kinsman), to protect and support her. If the husband's family is extinct, no male, no supporter has been left, and no Sapinda relations (of the husband) remain, in that case (the nearest relation) belonging to the widow's father's family has power over her."
Rejtabk. — According to the passage quoted under Auth. 3, it would seem that the sister-in-law, as belonging to the family of the widow's husband, has a better right to the guardianship than the widow's mother.
Q. 15. — A man died, and left two sons. The elder of these died, and left a widow. Afterwards the younger brother also died, and left a widow. The two brothers had
61 H
402 HEIBS IN DIVIPED FAMILY. [Bi.i,cB.n,s.6A.q.l7.
been undivided. They have left no children. Which of the two widows inherits the ancestral property ?
A. — ^The two widows have equal rights to the property, because they stand in equal relationship to the original head of the family (their father-in-law). — Surat, June 18th, 1862.
Authorities.— (1) Vyav. May. p. 134, 1. 4 (see Anth. 4) ; (2) p. 140, 1.1; (3*) p. 136, L 4 (see Chap. I. Sec. 2, Q. 11) ; (4*) Mit. Yyav. f. 55, p. 2, 1. 1 (see Chap. I, Sec. 2, Q. 4).
Remarks. — As the family is undivided, the younger brother inherits his elder brother's share, and at his death his widow is his heir. The elder brother*s widow has only a claim to maintenance.
Q. 16. — A person died, leaving certain moveable and immoveable property. His widow and brother claim to be his heirs. Who should receive the certificate of heirship ?
A. — If the deceased was a separated member of the family, his widow is entitled to a certificate of heirship. If he was not separated, his widow has not a right of inheritance, (a) Rutnagiri, 1847.
Authorities. — (1*) Mit. Vyav. f. 65, p. 2, 1. I (see Chap. I. Sec. 2, Q. 4); (2*) Vyav. May. p. 136, 1. 4 (see Chap. I. Sec. 2, Q. 11).
Q. 17. — ^Two brothers lived separately in the house, which was purchased in their names with the money of their father. One of the brothers died. The question is, whether the deceased^s share should be given to his father, brother, or widow ?
A. —The house was bought with the father's money. The transaction was concluded in the names of his two sons. The deed of sale mentions their names. They lived in the house separately. This circumstance shows that they are separated brothers. The question does not state that they
(a) A childless Hindi! widow who has succeeded to her deceased husband's separate share of a Mahal, and is recorded as a cosharer, is entitled under Act. XIX. of 1873 to a perfect partition .of her share. Jhunna Kitar v. Chain Sukh, I. L. R. 3 All. 400.
u.i,CH.n^.«A,^18.] WIDOW — MAEBIED AS VIRGIN.
403
were [an] divided in interests^ nor that the father had given them the house in gift. From this omission it may be inferred that the brothers were separated. The portion of the house which belonged to each of the separated brothers, becomes, on his death, the property of his wife.
Sural, January 20th, 1855. •
Authority.— Mit. Vyav. f. 56, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4). Rekabk. — ^The passage quoted refers only to the right of the widow to inherit, in case her husband has sepskrated from the family.
Q. 18. — A man died, leaving two wives. The elder wife died leaving one son, and the younger died leaving two sons. The son of the elder wife had separated from the other two. The two uterine brothers died. The elder of these has loft a widow. Besides this widow there is the separated half-brother. The question is, which of them is the heir of the last deceased brother ?
A. — The sister-in-law of the deceased, having lived with him as a member of an undivided family, is his heir.
Dharwar, August 17th, 1854.
The following is the Genealogical Table showing the family spoken of in the question : —
Elder wife.
A man.
Younger wife.
Son.
Son.
Son.
Separated brother.
Died.
Died.
Widow.
Sister-in-law. Authorities— il) Mit. Vyav. f. 55, p. 2, 1, 1 (see Chap. I. Sec. 2, Q. 4); (2*) Vyav. May. p. 136, 1. 2 [see Chap. I. Sec. 2, Q. 3).
404 HEIBS IN DIVIDED FAMILY. [m.i,ch.u^6a^^.
Rekabk. — If, of the two undivided nterine brotbers, the married one dies first, bis brother will inherit from him {see Auth. 2) ; and after bis death the half-brother will succeed. The widow will then be entitled to claim maintenance only. If the married brother died last, his widow inherits from him.
Q. 19. — A man, his wife, his son, and his son's wife lived together as an undivided family. The man died first, and his death was followed by that of his son. Can the son's wife claim from her mother-in-law a half of the family property as her share ?
A, — If the family is undivided, the mother-in-law becomes the heir of her deceased son, and in such a case the posses- sion of the property by the mother-in-law need not be dis- turbed. If the family is divided, the daughter-in-law is the heir. — Poona, February bth, 1858.
Authorities.— (1) Mit. Vyav. f. 50, p. 1, 1. 7 ; (2») £ 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Rbhabk. — If tho father died before his son, the daughter-in-law is the legal heir, since her husband inherited from his father, and she is, on failure of issue, the nearest heir to her husband. If, on the con- trary, the son died before his father, the mother-in-law inherits the family property from the latter. See the next question. The prefer. ence of the mother to the widow by some caste-laws has been noticed above, Q. 1.
Q. 20. — A man died, leaving a widow ; subsequently his son also died, leaving a widow. The daughter-in-law sued her mother-in-law for the ancestral property. Can she do so?
A. — In default of male issue, a man's widow is his heir. The daughter-in-law, therefore, has rightly sued her mother- in-law. — Tanna, February 14th, 1852.
Authorities.— (1) Mit. Yyav. f. 50, p. 1, 1. 7; (2*)f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4) ; (3) Viramitrodaya, f. 195, p. 2, 14 («* Auth. 2); (4*) Manu, IX. 185 (see Chap. II. Sec- 1, Q. 1).
bli,ch.u^.6a,q,22.] widow — MABRIBD AS VIRGIN, 405
Q, 21. — A man died without issae^ leaving a widow and mother. The deceased's property consists of an ancestral house. It is in the occupation of the widow and the mother. Are both heirs ? or if only one, which of them is heir of the deceased ?
4. — ^If the deceased was separate and had received his share of the family property, his widow inherits his property. If the deceased was not separate, both his mother and widow are his heirs. If the wife conducts herself virtuously, supports and serves her mother-in-law, she will have the better right of the two to inherit the property ; but if the wife does not behave in this manner, the right of the mother will be superior. — Ahmedabad, September 12th, 1851.
Authorities. — (1) Vyav. May. p. 134, 1. 6 : — " Let the widow succeed to her husband's wealth, provided she be chaste." (Borradaile, p. 100 ; Stokes, H. Ii. B. 84.)
(2) Vyav. May. p. 136, 1. 7 ; (3) p. 136, 1. 4 {see Chap, I. Sec. 2, Q- 11)-
Eeilajiks. — 1. If the deceased was separate, the widow is his heir.
2. If he was undivided, and male members of the family are alive, she can only claim maintenance.
3. The mother has in either case only a claim to maintenance.
Q. 22. — A widow adopted a son, who died after his mar- riage. The questions are : Who will be his heir, his adoptive mother or his widow ? Which of the two can adopt a son ? and if each of them adopt a son, how shall the property be divided between the sons ?
A. — The deceased, though adopted by the widow, became heir of her husband. On his death his widow is the last heir. She, therefore, has the right to adopt a son, and her adopted son can perform the funeral rites for his mother, as well as for his grandmother. The mother-in-law, there- fore, cannot, unless there is a good reason for it, adopt a son.
Sadr Adalaty April 12th, 1850.
406 HEIRS IN DIVIDED FAMILY. [BK.i,cH.n,s.6i,q.U.
Authorities.— (1*) Manu, IX. 141 (we Auth. 2) ; (2») Datt. Mim. p. 36, 1. 10 (see Chap. II. Sec. 2, Q. 8) ; (3*) Mit. Vyav. f. 55, p. 2, L 1 {see Chap. I. Soc. 2, Q. 4).
Q. 23. — There are a daoghter-in-law and her mother-in- law. The husband of the former died, and the question is, wlio shoald collect the debts due to him ?
A. — ^It is enjoined in the Stetra that the property of a person who died without issue, and who had declared him- self separate from the other members of the family, goes to the widow, and that the property of a person who died with- out issue, but had not declared himself separate, goes to his mother. In the case under reference the debt should be re- covered by the mother-in-law.
Rutnagiri, October 14th, 1847.
AuTHORrnxs. — (1) Vyav. May. p. 136 1. 4 (see Chap. I. Sec. 2, Q. 11); (2) Mit. Vyav. f. 51, p. 2, 1. 5; (3») f. 55, p. 2, 1. I (»• Chap. I. Sec. 2, Q. 4) ; (4) Manu, IX, 217.
Eemark. — The widow of the last deceased member of an undivided family inherits, in preference to the widows of all pre-deceased mem- bers. (See Questions 18, 19 and 24.)
Q. 24. — A man died, leaving a widow and mother. The widow is a minor of abont eight years. The mother declared herself to be the beir, and took charge of the banking business of the deceased. The question is, whether the mother or the widow has right to the man^s property ?
A. — When a man has separated from other members of his family, his wife alone has a right to inherit his property after his death. As, however, the deceased had not sepa- rated from his parents, his mother has rightly assumed the possession of his property. On the death of the mother-in- law, her daughter-in-law will succeed her as heir. Ahmedabad, March 26th, 1850.
AuTHOEiTiEs.— (1) Vyav. May. p. 95, 1. 5; (2*) Mit. Vyar. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2. Q. 4) ; (3) Vfram. f . 194, p. 2, 1. 4 («• Chap. II. Sec. 6a, Q. 14).
u.i,cH.n,8.CA.q.26.] WIDOW — MABRIED AS VIRGIN. 407
Remabk. — The deceased person's wife inherits. But as she is a minor, she will be nnder the guardianship of her mother-in-law, if the latter is a fit person, and if no male blood relatives of the hus- band are living. (See Act No. XX. of 1864; Act IX. of 1861.)
Q. 25. — A man of the Gttvall (milkman) caste left at his death some money to be recovered from a debtor. His mother obtained a decree, and attached some property belonging to the debtor. There is a widow of the deceased^ who, though a " Lagna*' wife, did not live with her husband during his life-time. The mother-in-law on this ground contends that her daughter-in-law has no right to the pro- perty of the deceased. What is the law on this point ?
A, — If the daughter-in-law, though living in her mother's house, has maintained her good character, and is of a proper age, she can recover the debt. If she has a bad character, or has married another husband, she cannot claim any property of her husband. — Sholapoor, March 27th, 1854.
AuTHOBrriES.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 4) ; (2) p. 134, 1. 6 (see Chap. II. Sec. 6a, Q. 21) ; (3») p. 137, 1. 7 (see Chap. IL Sec. 6a, Q. U); (4) Mit. Vyav. f. 66, p. 2, 1. 1 (see Chap. I. Sec. 2, Q.4).
Q. 26. — A man died, leaving a widow, a son, and a daughter-in-law. They all lived as an undivided family; afterwards the eon died. The right of inheritance is contest- ed between the mother and the daughter-in-law. The ques- tion is, which of these is the heir ?
A. — According to the Sdstra a man's son and widow have a right equally to share his property. If the son is dead, his wife has a right to inherit herhusband^s share of his father's property. The mother-in-law has no right to it. If the father's property has not been divided between his widow and son, the daughter-in-law cannot claim her share. If, however, she pleases her mother-in-law and induces her to assent to a division of her property, she may obtain a share.
408 HEIRS IN DIVIDED FAMILY. [BE.i,CH.n,8.6A,q.28.
If the daughter-in-law cannot please and induce her mother- in-law to consent to a division^ and if the mother-in-law withholds her consent, the daughter-in-law cannot get her share. The mother-in-law will, however, be bound in such a case to maintain her daughter-in-law. On the death of the mother-in-law the daughter-in-law will inherit her pro- perty.— Ahmedabad, October 21«^, 1845.
AuTHORrriBS.— (I) Vyav. May, p. 136, I. 7 ; (2) Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remark. — A mother receives a share of her husband's property only if either there are several sons, and these divide after the other's death, or if a son assigns some of his father's property to his mother instead of giving her maintenance. Neither the one nor the other <X)ndition seems to exist in this case. The mother has, therefore, after her son's death, only a right to maintenance. The daughter-in-law on the other hand, inherits her husband's property.
Q. 27. — When a man dies after the death of his son, will the man's or his son's widow be his heir ?
A. — The father's widow is the heir. Her daughter-in-law is entitled to a maintenance only.
Khandesh, September 7th, 1858.
Authorities.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 3 ; (2) p. 136, 1. 4 (see Chap. I. Sec. 2, Q. 11) ; (3*) Mit. Vyav. f. 55, p. 2, 1 1 (see Chap. I. Sec 2, Q. 4).
Q. 28. — A mother-in-law and her daughter-in-law live together as a family united in interests. They possess some ancestral property. The question is, how the women should share it ?
A. — Each of the women should take a half of the property. If the property was acquired by the husband of the mother- in-law, she must be considered his heir, and entitled to all his property. In this case the daughter-in-law can claim a maintenance only from her.
8adr Adalat, September llth, 1852.
ii.i,cH.n,8.6A,Q.81.3 WIDOW — MAREIED AS VIRGIN. 409
Authority.— Mit. Vyav. f . 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Remabk.— The widow whose husband died last is the lavpful owner of the property. The other is entitled to maintenance only. As to the Sastri's opinion that the daughter-in-law is entitled to naintenance, see the Introd. pp. 246, 248.
Q. 29. — A man died, leaving a widow and mother. Thd question is, which of these is the heir ?
^.—If the widow is a chaste woman, she is the legal heir of her husband. If her character is not good, she will be entitled to maintenance only. — Siirat, November 7th, 1845.
Authority.— Mit&kshar&, f. 65, p. 2, 1. 1 {see Chap. T. Sec. 2, Q, 4).
Q. 30. — ^A man died. His young wife is under the pro- tection of her father. A separated uncle and cousin of the deceased state that they are the heirs to the property of the deceased, and that they would support the widow till she should marry another husband. The question is, who is the beur? The father of the girl has passed an agreement to the uncle and the cousin of the deceased, that they should take one-half of tho deceased's property, and permit the widow to take the other half. Has the widow^s father a right to pass such an agreement ?
A, — The widow is the heir* to the deceased's property. The other relatives have no right to contest her heirship on the ground that she is likely to be remarried. Her father has no right to pass any agreement of the kind described in the question. — Khandesh, October 20th, 1849.
AuTHORTXY.— Mit. Yyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 31. — A representative of a branch of a family passed an agreement to one of two individuals of another branch of the same family, whereby he stipulated that he should have his name entered on the records of Government in regard to certain lands. Of these two individuals, one died, and the
410 HEIRS IN DIVIDED FAMILY. [BiL.i,c«.iM.6i,q^.
other left the coantiy and was not heard of. The widow of the former represents the branch. The qaestion is^ whether the widow or the person who passed the agreement is the heir of her deceased husband ?
-4.— Those who take meals and carry on their tranBactions separately, must be considered members of a divided family. According to this description, the person who passed the agreement and the two individuals of another branch appear to be separate in interest from each other. The widow will therefore be the heir of the deceased.
Ahmednuggur, April 26th, 1847.
AUTHOEITIES.— (1) Vyav. May. p. 134, 1. 4 {see Anth. 7); (2) p. 129,1. 2; (3) p. 129, 1.4; (4) p. 140, LI; (5) p. 134, 1. 6 ; (6) p. 137, 1. 7; (7*) Mit. Vyav. f 65, p. 2, 1. 1 (see Chap. I. Sec. 2, Q.4).
Q. 82.— A man held the Watan of a priest, called the '' Yajamana-vritti.'^ He died, leaving a widow and a sister. A person, of whose family the deceased was the priest, made a " Dana,'' or religious gift, of a bed. The sister received it. The question is whether the widow or the sister has the right to the emoluments of the office of the priest ? Can a man make a " D4na'\pf a bed to any other person besides his priest, and if ho cannot, is the giver or the receiver responsible for it ? v
A. — In this case the widow is the heir, and so long as sbc is alive the right of receiving gifts belongs to her. The sister has no such right, but she cannot be prosecuted for receiving that which a man chose to give her. The man may, however, b^ sued on that account. Ahmcdabad, July 24th, 1856.
AuTUORiTiES.—(l) Vyav. May. p. 134, 1. 4 {sec Auth. 3); (2) p. WO, 1. 1 ; (3») Mit. Vyav. f . 65. p. 2, 1. 1 {see Chap. I. Seo. 2, Q. 4).
Remarks.— iSee Book I. Chap. II. Sec. 7, Q. 1. As to the customarf laws governing the relations between such classes or persons as priests and astrologors and those entitled to their ministrations,
Bi.i.CH.ii^6A,q.34.] WIDOW — MABBIED AS VIRGIN. 411
reference may be made to Damodar Abaji y. Martand Ahaji, (a) and U) Vithal Ki-ithna Joshi v. Atumt Bamchandra, {b) In some cases, though the amount of the f^e payable by the layman is not fixed by law, yet a parting with some property is essential to the efficacy of the ceremony performed, (c) The right to the fees and offerings thiiB becoming due from particular families or classes is regarded as a fiunily estate, inalienable usually to persons outside the family, bat transferable within the family, and a subject for inheritance and partition like other sources of income. Thus it is that even a widow may be entitled under the customary law to the oflfering by which 00 a particular occasion a client of the priestly family has to obtain a spiritual sanction to some secular transaction, or simply to acquire religious merit. The requisite ceremonies have in such cases to be provided for by the appointment of a qualified officiating substitute. An intruder subjects himself to an action for damages, as the re- ported case shows. Whether a suit lies by the representative of the priestly family against an individual who fails to make the proper offering, depends on the particular legal relation subsisting in each case, (d)
Q. 83. — ^To whom does the ancestral property of the de- ceased go by the right of inheritance, to his wife or his daughter-in-law ?
A. — If a father dies first, his son becomes his heir, and after the death of the latter his wife succeeds him. . If, how- ever, the son dies before his father, the father becomes his heir, and on his decease the father's wife succeeds him. Poona,July 10th, 1858.
AuTHOBiry.— ♦Mit. Vyav. f . 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 34._Two men, A and B, of the V^i caste, lived together. A died, leaving a widow and a daughter. Can the widov^ have a claim to recover her husband's share of the moveable and immoveable property ?
(a) H. 0. P. J. 1876, p. 293.
(b) 11 Bom. H. C. E. 6.
(c) See Coleb. Lett, and Ess. vol. II. p. 347.
id) See KJwndo Kesliav JDhadphale v. Babaji bin Apaji Qwrrav, H. C. P. J. 1881, p. 337, in which it was said that a temple servant had not a right enforcible against a particular worshipper.
412 HEIBS IN DIVIDED FAMILY. [Bic.i.cH.ii,s.6A,q.l6,
A.^^Kb the property was acquired by botb^ each lias a right to an equal share of it. The widow can therefore claim a moiety of the property. — Brocbch, June 18th, 1859.
AxTTHORiTiBS.— (1) Mit. Vyav. f . 83, p. 2, L 6 :—
" If (one of the partners) emigrate or die, his heirs (t. e. sons, gprandsons, ^.) or paternal or maternal relations, if they appear, may take his property ; on failure of these, the king."
(2) Mit. Vyav. f 82, p. 2. 1. 5 ; (3*) f . 55, p. 2, 1. 1 (see Chap. L Sec. 2. Q. -4) ; (4) Manu VIII. 210.
Rbmabk.— The decision is right only under the supposition that the two Banias were not members of a united family, but only partners in trade.
Q. 35. — A deceased person has left two widows, one of whom is an elderly woman, and the other of 16 years only. How should they divide the deceased's property between them?
A. — Each of them should take a half.
Poona, April SOth, 1849.
Authorities.— (1) Vyav. May. p. 134, 1. 4 ; (2*) p. 137, 1. 5:—
'* But if there be more than one (widow) they will divide it and take shares.*' (Borradaile, p. 103 ; Stokes, H. L. B. 86.)
Remark. — See also the note at page 52 of .Stokes' H. L. Books. It would seem that they take jointly according' to the cases in Norton's Leading Cases, page 508. See the Introd. p. 103. See also tn/nz, Chap. IV. B. Sec. 6, II. c, Q. 1 ; and Bhagtoandeen Doobey v. Mym Baee. (a) The 6dstri at 2 Str. H. L. 83, 90, agrees with the view taken above, p. 103.
Q. 36. — ^A deceased man has left two widows, the elder of them has two daughters, and the younger has no child whatever. The property of the deceased has passed into the hands of the elder widow. Can the younger widow claim a share of the property ? And who has the right to adopt a son?
(a) 11 M. I. A. 487.
BLi,cH.ii^6A,q.88.] WIDOW — MABBIED AS VIEGIN. 413
J.-— The younger can claim a share. The right of adop- tion belongs to the elder. — Poona, March Slst, 1852.
Authorities.— (1) Vyav. May. p. 137, 1. 5 {see Chap. IT. Sec. 6a, Q. 35); (2) Samsk&ra Kaastnbha. (See Bk. III. Adoption.)
Q. 37.— A deceased husband has left two wives, one married by the " Pat " and the other by the '^ Lagna " cere- mony. Which of these wives will be his heir ?
i.— According to the S&stra, both are wives and heirs,
Poona, August 7th, 1847.
AuTHOMTiES.--(l) Vyav. May. p. 134, 1. 4 (see Aath. 2) ; (2*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Bemieks. — ^According to the strict Hindii law of the higher castes, the remarriage of widows is nail, and, apart from caste custom, no- thing more than concubinage, and consequently the Lagna- wife alone can inherit. But as by Section I. Act. XY. of 1856, the renuuriage is legalized, a F&t-wife has perhaps the same rights as the Lagna-wife under Section V.
2. The P&t-wife's son is legitimate and capable of inheriting, but in 1858 the Dharwar 6&stri assigned to him a place below the previous- ly adopted son, who was himself postponed to the son by a ' Lagna* wife, though bom after the adoption. The parties seem to have been Lmgayats. B. A. 26 of 1873, Basanagaoda v. Sunna Fakeei'agaoda.
Q. 38. — Is a man's Pat-wife or the Lagna-wife his heir ?
4. — The Lagna-wife is the heir. The P^t-wife is not. A Pat is not a legal and ceremonial marriage. It is performed without reference to the appearance of the planets Venus and Jupiter, and in defiance of the situation of other stars, and of the prohibition of certain days for the performance of marriage. — Dhanvar, September 2l8t, 1855.
AuTHOEiTiES.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 8); (2) p. 136, 1. 4 ; (3») Mit. Vyav. f . 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Bemabk. — See Question 39, with reference to which the answer would be wrong as to members of a caste recognizing P&t marriages.
414 HBIBS IX DIVIDED FAMILY. [BK.i,CB.n,s^A,^4a
Q. 39.^ A deceased person has left two widows^ one by '' Lagna'' and another by ''Pat/' The latter has a daughter who is married. Is the '' P&t^' widow entitled to the whole or a portion of the deceased's property^ or to a maintenance only ?
A — Both the widows are equally entitled to the husband's property^ which should therefore be divided between them. Poona, December 28^^/1 848, AuTHOBiTY.— Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4). Bemaek.— 5^^ Question 35.
Q. 40. — A deceased man has two wives, one by " Lagna*' (the first marriage), and the other by "P&t" (remarriage as respects the woman). The former has daughters, to whom the man has transferred his property as a gift. The ques- tion is, whether the daughters or the *' Pat " wife will be his heirs ?
A. — ^The '^Ht '' wife is the nearer relation and better heir of the deceased than his daughters. There is scarcely any difference between a " Pat " and "Lagna'' wife. Khandesk, February 6thi 1848.
AUTH0R1TIES.—(1) Vyav. May. p. 134, 1. 4 {see Auth. 3); (2*) Mit. Vyav. f. 68, p. 2, 1. 16 {see Chap. II. Sec. 3, Q. 11); (3») f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Remarks. — If the deceased kept back enough of his property to maintain his widow, the gift of the rest to his daughters is valid. But if he left his widow unprovided, the gift is ineffectual, and as according to Section I. of Act. XV. of 1856 the P&t marriage is legaL his widow will be his heir, provided that the mother of his dangbters be dead. Should she be still alive, both the widows will inherit.
2. A widow remarrying remains personally liable on a bond executed by her. (a) A married woman contracting jointly with her husband is responsible only in her stridhana. Narotam Ldahhai V. Nanka Madhav, Bom. H. C P. J. 1882, p. 161; Naihubhai Bhailal V. Javher Raiji, I. L. R. 1 Bom. 121 ; Qovindji v. Ldhmidat, lb. 4 Bom. 318.
(a) Ndhdlchand v. Bin 8Mvd, I. L. R. 6 Bom. 470.
BK.i,CH.ii,8.6A,<i.41.] WIDOW— MABEIBD AS VIRGIN. 415
Q. 41.— A man had two wives, one by *' Lagna" and the other by '^m.'' He married a'third by "Pftt/' This last- mentioned woman had not taken the leave of her first hus- band to contract a " Pdt'^ marriage with the man. She gave birth to a daughter. Can this daughter succeed her father after his death ?
i.— It is not legal for a woman to enter into a ''P&t '^ marriage without having previously obtained permission of her husband, unless he is dead. The daughter, therefore, can have no share in the property of the deceased father. But as she was the result of the '' Pftt '* marriage, the heirs who will take the assets of the deceased must support her. The « Lagna'' and the first '' P&t " wives will be the heirs of the deceased, entitled to take all his property.
Sholapoor, October Idth, 1852.
AiJTHORiTiBS.--(l) Manu V. 147; (2) Vlramitrodaya, f. 167, p. 2, 1. 11; (3) Mit. Acb&ra, f. 12, p. 1, 1. 4 ; (4) Vyav. May. p. 239, 1. 3 ; (5) p. 137, 1. 6; (6») Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (7*) f. 67, p. 1, 1. 6 (see Chap. II. Sec. 3, Q. 3).
Bemaxks.— (1) As the husband of the second " P^b-wife" is still alive, the woman cannot be called correctly a " P&t-wife," but is an adulteress and concubine. As a concubine she has no right to inheritance, but only to maintenance for herself and her daughter from the heirs of the man under whose protection she lived. Tho concubine of a late proprietor is entitled to maintenance from his heirs, (a) and a sufficient portion of the estate may be invested in order to provide the requisite income during her life, {b)
2. Tho recognition of a natural son by his father confers on him that status, though he was nob bom in the father's house or of a concubine having a peculiar status therein, (c)
3. Illegitimate children of the ^Adra caste inherit the estate of their putative father, in default of- legitimate children, (d)
(a) Khemkory. Umiashankart 10 Bom. H. C. R. 381. [h) Vrindaaandas v. Yamunahai, 12 Bom. H. C. R. 229.
(c) Muthueaiomy Jagavera TeUappa v. Vencataswara Yeiiaya, 12 M. I. A. 220.
[d) Inderun Valuiigypooly r. Ramasawmy Pandia et al, 13 M. I. A. Ul.
416 HEIBS IN DIVIDED FAMILY. [BK.i,cH.ii,8.6i,q.4L
Q. 42. — A man died. His Lagna-wife had lived separate from him. The man kept a woman. His property has passed into the hands of his mistress. The question isj which of the two women has the right of inheritance 7
A, — If the deceased has left no sons, grandsons, or other nearer heirs, the Lagna'-wife has the right to inherit the pro- perty of the deceased. The mistress cannot lay any claim to it.
Poona, March 20th, 1855.
Axn^HOBiTiES.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 3); (2) p. 131, 1. 6 ; (3*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 43. — A Kunabl died, leaving two widows, A and B, one of whom. A, he had married as a virgin, and B as a widow. Can A mortgage her husband's Mir&s land ?
A. — According to the Sastra, A is the heir of her husband, and she can therefore mortgage his Miras land.
Poona, September 22nrf, 1860.
AuTHOKiTiES.— (1) Vyav. May. p. 137, 1. 7 (see Chap. H. Sec. 6a, Q. 17) ; (2») Nirnaya Sindhu (see Chap. II. Sec. 8, Q. 5).
Q. 44. — A Ling&yat married a virgin A, and a widow B. Which of them has the power of selling his immoveable property ?
A, — A has the chief power of disposing of his property.
Dharwar, December Srd, 1856.
Authorities.— (1) Mit. Vyav. f. 65, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4) ; (2*) Vyav. May. p. 137, 1. 7 (see Chap. 11. Sec. 6a, Q. H); (3*) Nirnaya Sindhu. (See last Question.)
Remark. — ^The marriage of the widow B to the deceased would . be perfectly valid, the Lingayats ranking only as of the otdn } caste, (a) (See Q. 35, 40.)
(a) See next Section, and Gopdl Narhar v. HanniantQancsh, I I*- R. 3 Bom. 273.
ii.i,ch.ii,8.6b.] widow — REMARRIED. 417
SECTION 6.— WIDOW.
B.— RE-MARRIED.
Introductory Remarks.
The remarriage by Fit is so foreign to the purer Hindti notions, that the simple ceremony (Nfttr&) cannot be performed for a woman who lias not been married before. The same rule applies in some castes to males ; in others a mere symbolical marriage of a man to a Sami tree or a cotton image qualifies him, though a bachelor, to take a previously married woman to wife. . Such is the rule amongst the Surat Soothar Panchalis, Lobars, Mdlis, Khumbars, Dhobis, Mochis, and others who answered Mr. Borradaile's inquiries.
In some of the Dekhan castes, on a widow's marriage she has to give up to her first husband's family all her property except a priti- datta or gift from her own family, (a) The nature of this property is discussed under the head of Strfdhana. Property in a wife is argued against by Nilkantha (6) in terms which imply that by some of the learned even it was asserted. Such property would of course imply the wife's incapacity for property except a peculium in the proper sense. It would account too for the rule of some castes, that he who takes the widow, a part of the familia of a deceased, becomes thereby responsible for all his debts. See Introd. pp. 165, 271, 282.
Amongst the J&ts of Ajrair, custom requires that the member of the community who marries a widow shall repay to the family of the deceased husband the expenses of his marriage, (c) We have here a trace of a joint interest of the family in the wife or widow of each member of it which has been found to prevail in widely separated parts of the world. Without discussing the causes of this custom, we may perhaps gain a clearer view of the position of the widow, especially amongst the lower castes, by a consideration of the various social conditions through which she has reached her present capaci- ties of freedom, complete or qualified, to dispose of herself, and of succession to property.
The levirate was at one time an institution generally recognized in India, (d) " It is declared, " says Apastamba, " that a bride is given
(a) Steele, L. C 169.
(fe) Vyav. May. Chap. IV. Sec. I. para. 10. (c) Madda v. Sheo Baksh, I. L. R. 3 All. 385.
{d) Gaut. XXVIII. 22, 23, 32. As to the Vedic period, Mnir, S. T. vol. V. 459. 53 H
418 HEIRS IN DIVIDED FAMILY. [BK.i.ca.u,a.6*
to the family (of her husband, not to the husband alone)." (a) Henoe the husband could once procure children by the agency of a blood relative, {b) but that ** is now forbidden on account of men's weak- ness," (c) " the hand (of a gentile relative like that of another is as) that of a stranger ; " ** the marriage vow is not to be transgressed ;*' aud ** the eternal reward to be gained by submitting to the restrictions of the law is preferable to obtaining offspring in this manner." {d) In Manu again (e) it is said that connection by one brother with the wife of another is degrading, ** even though authorized, except when •uch wife has no issue" ; but in that case it is approved. (/) Next follows a qualification of the rule limiting it to the procreation of One child on a widow by a kinsman, and lastly a prohibition of the practice to the twice-born classes. It is placed on a le?el with the marriage of a widow; {g) and the only remnant of the earlier law preserved by Manu is that commanding a man to take his brother's betrothed on the death of her
(a) Apast. Pr. II. Pat. 10, Kh. 27. Compare the existing customs described in Tupper, Panj. Oust. Law, Vol. 11. pp. 118, 131, 189.
The pallu or dower of a widow is resumed in Gujar&t by the deceased husband's family on her remarriage. They may in some castes escape from the liability to maintain her by giving her a formal license to remarry, without which she cannot, according to the caste usage, form a second union. In most instances a payment must be made to the family and in some to the caste.
(h) Gaut. XYIII. 4, 11. The Athenian heiress taken to wife by an aged husband was directed to supply his defects, should he prove unequal to his responsibilities, by the services of one of his agnatic kindred. See Petit, Leges Attic, p. 444. Baudh&yana, Tr. p. 226, might seem not to limit the choice of a subsidiary father to the family of marriage, but this appears from p. 234. Vasishtha XVII. 56 ss. 80, seems to intend that one of the family assembly shall he chosen.
(c) 1. e. their incapacity now to resist the demoralizing effect of practices which would have left the higher sanctity of their prede- cessors unharmed. Comp. Apast. Tr. p. 131.
{d) Apast. loc. cU.
(e) Chap. IX. 68 ss, 120, 121, 143-147 ; Chap. III. 173. N&radadoes not impose this condition. Pt. II. Chap. XII. Sec. 80 £f.
(/) See too Mit. Chap. 11. Sec. 1, paras. 10-12, 18, 19.
ig) On this comp. Apast. Transl. p. 130, and Viram. Tr. p. 61.
n.i,CH.n,».6B.] WIDOW — EEMABRTED. 419
(intended) husband, in order to procreate one child, (a) A similar rale is found in N&rada, Pt. II. Chap. XII. 80, 81, 85, 86, with the condition of authorization by the relatives, failing which the offspring will be illegitimate, {b) Provision is made by Y&jnaval- kya (e) for the son thas begotten (kshetraja) next to the son of the appointed daughter as heir to the nominal father, (d) By Yasish^ha he is made to precede the appointed daughter, {e) The idea of a woman's leaving her family of marriage and of sacrifice by marrying into another was one that to a Br&hman would appear &r more monstrous than a simple succession of a brother or kinsman to the right of one deceased over his wife. (/)
The custom, softened as we have seen and gradually discredited amongst the higher castes, has been preserved amongst the less civilized tribes down to our own day. Many instances of it are given in Mr. Rowney's book on the Wild Tribes of India. It seems itself to have sprung {g) from an even coarser usage of polyandry {h) which still subsists amongst the aborigines of India, (t) The wife at one time held in common, passes on her sole owner's death as
(a) See Viram. Tr. p. 106 ss.
(b) The viniyoga, or disposal of the widow by the husband's family, provided for in Narada, Pt. II. Ch. XIII. para. 28, is a disposal of her to another lord.
(c) n. 128 ss ; If it. Chap. I. Sec. XI. paras. 1, 6. id) See Mit. Ch. I. Sec. X.
(e) Vasishtha XVII. 14, 15,
(/) Comp. Tupper. Panj. Cust. Law, Vol. II. p. 126. 131, 174. It seems that some Br&hmans have adopted or retained the levirate, ib. 132.
[g) See M. Muller's Hist. Sansk. Lit. p. 46 ss.
(h) Seeaa to Seoraj, Lahoul and Spiti, Mr. Tupper's Collection, Panj. Cust. Law, vol. II. 186-188. To this custom perhaps may ultimately be referred the passage of Manu IX. 182 : *' If among several brothers one have a son bom, all are by his means fathers of a son." Though this is referred by KullAka and other comparatively recent writers to adoption as prevented by the existence of a nephew, such could not have been the purpose when it was first uttered. For the polyandroua customs of the Tothiyars and Nairs, see Dubois, Manners, Ac., p. 3 ; and above, p. 289.
(i) As once in Britain. See Caesar De B. G. V. 14.
420 HEIES IN DIVIDED FAMILY. [bk.i,ch.u,s.6b.
property to his brother, (a) In many cases she is a raloable pro- perty, as by tribal cnstom she has to do all or nearly all the agricnl- tural work, (b) sometimes even the son has to take all his Bather's widows as his own wives, with the exception of his own mother. There is probably some mixture of humane feeling in such rales, as they provide a home for old widows, while they give the heir the benefit of the younger ones, (c) but they belong to a constitution of society in which women are not yet regarded as fully the subjects of rights. Amongst the Jews the levirate was part of a system in which a man's wife was regarded as his property, and he might sell his family,, subject to return at the jubilee year. The capacity of daughters as heirs was grafted on to this system by a special revelation, and accompanied by a necessity of marrying within their own tribe, (d) In India their right grow out of the developed system of ancestor worship through their capacity to produce sons who could sacrifice to their fathers' manes. The widow's right grew out of her participation in her husband's do- mestic sacrifices, (e)
Such rights as these imply progress beyond the stage at which women were mere chattels, and when the law made no provision for them except by handing them over to a second master on the death of the first ; ( / ) but the traces of the earlier system are
(a) Amongst the Thiyens in Malabar an unseparated brother takes to wife the widow whose favours as wife of his brother he previoosly had a right to share.
In Spiti a brother even leaves a monastery to take his brother's widow and other property. No ceremony is ihought necessary. Here however Thibetan influences are to be recognized. See Panj. Cust. Law, II. 189. For the semi- Afghans of Peshawar, ib. 228. See HcLennan's Studies in Anc. Hist. p. 158 ss. In Bohtak the only Karewa or widow's remarriage recognized as proper is that to her late husband's brother. See Kohtak Settlement Report, p. 64.
(b) See Panj. Cust. Law, p. 194.
(c) See Tylor, Anthropology, 404; Tupper, Panj. Cust. Law. Vol. IL p. 125.
(d) Numbers XXYII. 1,7; XXXVI; Lev. XXV. 10; Milman's Hist, of the Jews, Bk. V.
(e) See Manu IX. 45, 86, 87; III. 18, 262; Mit. Chap. IL Sec.l, para. 6.
(/) Comp. the idea of the Vazirs that a woman is a chattel as much as a cow. Panj. Cust. Law, II. 236.
k.t,ch.ii,8.6b.] widow — REM ABRIED . 42 1
still plainly perceptible in the texts, and even more so in the castoms of tribes and castes. It is not a wife in general whom the Smritis make a real heir ; it is only the " patnt, *' a sharer . in her husband's sacrifices. We can see the capture of wives succeeded by the sale of daughters, and this by their endowment when they had to be in some measure provided for otherwise than as mere slaves in their husbands' families ; and then again their elevation to the rank of heirs to their husbands as competent to per- form their Sr&ddhs. But the older spirit reasserts itself, in cutting down the widow's interest to a life enjoyment, and then extending to all female successors a single dubious text which in terms applies only to widows. Tribal usage, generally oppressive to females in proportion to lowness in the scale of progress, has still in several instances hit on alleviations of their lot, and on means of giving them dignity and social status, which suggest that civilization might possibly have been worked out on quite a different type from that which has in fact prevailed. Side by side with the transfer and devolution of women as chattels amongst some tribes, (a) we find in other tribes, from the G&ros and Kh&sias north of Assam to the Kayars of the south, a system of exclusive female kinship. The Kh&sya Chief and the R&jah of Travancore alike succeed to their maternal uncles, and a sisterless and nephewless man has to adopt a sister to provide him with legal heirs, who are not according to castom the sons of her husband. The G&ro has to earn a place by service in his intended father-in-law's household. The scriptural example is sometimes followed in the Dekhan also, {b) The Koche bridegroom becomes a dependant of the bride's mother, (c) In some of these cases it is impossible to discover any degradation of the physical or moral being of the tribesmen below that of others placed in similar physical circumstances, {d) but the arrest, in all of them, of progress at a certain stage suggests the unfitness of these social schemes as a basis for a high form of civilization.
(a) See Rowney, Wild Tribes of India, passim.
(h) Steele, Law of Castes, p. 166.
(c) A similar custom in Sumatra is described in Marsden's His- tory, p. 262, quoted Lubbock, Orig. Civil, p. 53. In Kulu and Spiti (Panj&b) a son-in-law is commonly taken into the family of a sonless man, Panj. Cust. Law, vol. II. pp. 186, 190. Similar to this is the custom of lUatom in Bellary and Kamool, see Hanumantamma v. Rama Reddi, I. L. R. 4 Mad. 272.
id) See Paiy. Cust. Law, vol. II. 196.
422 HEIRS IN DIVIDED FAMILT. [bk.m;hji,8.6b.
The Ghnndavand or patnibh&g» prevalent alike though not gene- ral (a) in Madras and in the Panj&b, by which the property is distributed equally to each wife and her offspring, has probably descended from a state, of which there are still instances, of combined polygamy and polyandry coupled with a distinct recognition of women as the subjects of rights, a respect for them as the sources of families, and a tracing through them of all heritable rights in males. This was adopted into the Br&hmanical system so far that the estate was first divisible according to the mothers of the different classes, but the later development which forbade the inter-marriage of differ- ent classes (h) has deprived the rules in the present day of any practical application except under some special custom of which the instances are rare if not unknown. Some other traces of female gentileship remain, (c) which are noticed elsewhere, (d)
Amongst the lower tribes of the Bombay Presidency, the tribal ownership of property which in one form or another subsists in Malabar and in the Panj&b, is not to be found, owing chiefly perhaps to the absence of external pressure forcing the members into close aggregation rather than to a progress beyond the stage of common proprietorship. The advanced Br&hmanical law has had so much in- fluence that the levirate in any form is not admitted as it still is in
(a) Panj. Gust. Law, vol. 11. p. 202.
(b) With this prohibition may be compared the expulsion from his tribe to which a man is still subject for marrying out of it in the Panj&b (Tupper, Panj. Gust. Law, vol. II. p. Ill, 122) and elsewhere; the penalty of death imposed by the Theodosian Gode on a Jew who should marry a Ghristian, and that of burning alive for the Christian who should take a Jewess as his mistress. See Lecky, Hist, of Bation- alism, vol. 11. 13, 275; Milm. Hist. Lat. Ghrist. Bk. III. Chap. V.; DoUinger, First Age of the Ghurch (Eng. Trans.) vol. II. p. 236; and comp. Ipastamba, Pr. II. Pat. 10, Kb. 27, 8, 9 ; Gautama, XXIII. li 15, 32 ; Steele, L. G. 170, 33 ; Dubois, Manners, &o., p. 18.
(c) Perhaps the succession of a daughter to a son of the same mother (Coleb. Dig. Bk. V. T. 225) may be referred to this. Comp. the converse case, supra p. 286.
{d) See above, p. 284 ss. Inscriptions, giving the names of the mothers of princes, are not necessarily indicative of a rule of female gentileship, since, where polygamy prevails, some are still surnamed as of such and such a mother for the sake of distinction without i^/ Tariation of the ordinary law.
k.i,ch.ii,8.6b.] widow — EEMABBIED. 423
the North of India, (a) but purchase is common and a simulated cap- tore is not unknown. The communal right of the family of marriage in women (b) having given way to the notion of wedlock as a really connubial relation, but one arising in strictness only from a connec- tion by means of the family sacrifices not allowed to the lower castes, the quasi- matrimonial union in those castes is easily dissolved, and at the same time the pAt marriage of a widow is allowed amongst Siidras to have full validity, (c) though so strongly condemned by the Brfthmanical law.
A husband may generally dismiss a wife at will, giving a " writing of divorcement" (d) which none of the higher castes are allowed to do ; mere incompatibility of tempers is a recognized ground of separa- tion ; (e) and a paramour buys the husband's rights for money. (/) These rules show with suj£cient plainness that those amongst whom they subsist have never risen to the Br&hmanical conception of marriage as a sacred and inseparable union, (g) Among some tribes and castes in Gujar&t a mere agreement dissolves the union; (h) a fine may be paid as the price of renunciation ( i) by either party or by the husband only, (j) Custom allows a woman to abandon her husband and take another, (k) subject only to the sanction of the caste. (I)
(a) See Tupper, Panj. Gust. Law, vol. II. p. 93 ss ; C. S. Kirkpatrick in Ind. Antiq. for March 1878, p. 86 ; Keaari v. Samardhan, 5 N. W. P. R.
(6) See Tupper, op, cit. p. 101. In some instances it is not (except subordinately) recognized, and the wife set free by her husband ia again sold by her father or her brothers.
(c) Ahmednagar 6^tri,6thFebruary 1860 MS ; Steele, L.C. 166,168.
id) lb.
(e) Op. cit. 169, 173.
(/) Op. cit 172.
(g) Comp. Dubois, Manners, &c., p. 136 ; and see Baudh&yana quoted above, p. 86.
[h) Borr. MS. Bk. F. sheet 39, 57 ; G. Lobars, Khalpa Pattum40, 47.
(i) lb. sheet 52. Koombar 6, Vaghree 23.
(j) lb. sheet 56, 57, MS. G. Lobars, Sootars, G. sheet 40.
{k) Comp. p. 104 above, as to the Khonds. Amongst the J&ts of the Panj&b it is said a woman may desert her husband and live with another man, her offspring by whom are regarded as legitimate, see Panj. Oust. Law, vol. II. 160.
(/) Eeg. T. Dahee in Mathurd Ndikin y. Em NdUcvrh L L. B. 4 Bom. at p. 569.
424 HEIRS IN DIVIDED FAMILY. [bk.i,ch.ii^«j.
The High Court has refused to recognize this authority in the caste, (a) but the usage itself shows how slight is in such cases the tie to which we give the name of marriage. The penalties of adul- tery are so trivial, (b) that the connexion guarded by them cannot be regarded as of a very sacred character. It is the injury to caste by carnal association with an inferior (c) rather than the loss of chastity which is looked on as a serious delinquency, (d) Even amongst the Br&hmans of the Dekhan simple adultery entails only a penance, after which the wife " may return to her husband*8 embraces." (e) This is a corruption, though one not without venerable authority, (/) suppos- ing the connexion has not been with a man of a lower caste, but for adultery with a low caste man the husband may repudiate his wife, {g) while he himself incurs only a penance by keeping a low caste concubine. (^) Adultery by a wife is generally atoned for by penance
(a) Ib.f and Reg, v. Sambhu Raghu, I. L. R. 1 Bom. 347. Under the Greek and Roman laws a divorce might always be had by the will of the wife as well as of the husband, unless amongst the Romans she had come " in manum." Christian feeling was strongly opposed to this laxity. See Smith's Diet. Ant., Art. Divortium; Milman, Hist. Lat. Ch. Bk. III. Chap. V.
(h) Thus in Borradaile's Collection, Bk. G, under Durgee Meerftsee Soorti there is an entry that a woman who deserts her husband and marries another may be divorced, and the second must pay Rs. 10 to the caste (punch&yat) and take the woman. See too Kally Churn Shaw V. Dukhee Bibee, I. L. R. 6 Calc. 692. In the Gurgaon District, Panj&b, it appears that a wife cannot hnder any circumstances claim a divorce, see Tupper, P. C. L. vol. II. p. 130.
(c) Comp. Gaut. XXI. 9; XXIII. 14; Vasishtha XXI. 1, 8, 10; Baudh. Tr. p. 232, 233 ; Ndrada, Pt. II. Chap. XII. para. 112.
(d) Amongst the Ndyars a woman, it is said, may not cohabit with a man of lower caste, and therefore must not marry one. See letter quoted above under Strtdhana, p. 284 note {b) ; and Buch. Mysore, vol. II. p. 418, 513. Comp. Manu VIII. 365 ; Yajn. II. 288, 294.
(e) Steele, L. 0. 33, 172. Comp. Dubois, Manners, Ac., 118, and Baudh. he. cit ; Ndrada, Pt. II. Chap. XII. paras. 54, 62, 78, 91,98.
(/) See Apast. Tr. p. 164, and the Viramit. Tr. p. 153. But as to the evil of an adulterine son, Manu III. 175.
ig) Steele, L. 0. 171, 172 ; Vyav. May. Chap. XIX. paras. 6, 12.
{h) lb, 170. Baudhfiyana, Tr. p. 218, pronounces a man ontcaste who begets a son on a StUdra woman, but for mere intercourse the penance is no more than some suppressions of the breath, ib, 313, 9e$ too p. 319. Comp. Manu VIII. 364 ; Yajn. II. 286.
B£.i,cfl,ii,s.OB.J WIDOW — EBMAREIBD. 425
unless the husband chooses to discard her, (a) which he can equally dO| though at the cost of some discredit, without any reason at all. (6)
A wife however who deserts her husband without sufficient cause is not entitled to separate maintenance, (c) and he who harbours her is liable to a suit by the husband, {d) The marriage of a second wife by the husband affords no excuse, (e)
Repudiation in practice seldom occurs except when the husband's patience has been worn out, or he has received a reward for setting his wife tree. She is generally valuable to him as a servant ; some mutual Section naturally grows up ; and the children must be tended. But the whole system of association between the sexes is as far removed from the higher Br&hmanical conception (/) as on the other side from the rudest sexual oommunism. The texts of the Smritis, and for the most part the commentaries also, have no real application to wives and widows and remarried women under the dominion of usages which the Hindft law admits as governing those amongst whom they prevail, but at the same time utterly rejects as part of its own developed system. It recognizes no second marriage of a widow, which yet amongst the lower orders is common ; and now is legalized for all classes by Act XV. of 1856. It could not be expected under such circumstances that the answers of the iS&stris should be perfectly consistent ; they were not called on to expound caste custom, and had no particu- lar acquaintance with it. They answered the questions put to them either by mere reference to the received texts against remarriage, without discrimination of whether these could be applicable to the particular cases, or by admitting the ' pftt' wife, and widow to the same position as the lagna' wife according to analogy, or an assumed caste
(a) Steele, L. C. 172.
(b) So amongst some low castes in Gujar&t, Borr. MS. Bk. F. sheet 57, &o., and the N&yars. This laxity brings a discredit on marriage which raises concubinage by comparison, and makes open licentious- ness amongst the lower castes in no way disgraceful. The same effect followed amongst .the Eomans from the same cause. See Milm. Hist. Lat. Christ. Bk. III. Chap. V.
(c) SiddLvngappa v. Sidava, I. L. R. 2 Bom. 634.
(d) Tamunabai v. Narayan, I. L. B. 1 Bom. 164.
(e) Nathubhai Bhailal v. Javher Raiji, I. L, E. 1 Bom. at p. 122. (/) The High Courts naturally take the higher view as far as
possible. Thus in a suit for maintenance between Lingayats it was said that the right and duty do not rest in the ordinary way (merely) on contract but spring from the jural relation of the parties, SidaUngappa v. Sidava, I. L. E. 2 Bom. 624. 54 H
426 HBIHS IN DIVIDED FAMILY, [Bt.i,CH.ii,B.eB.
custom. This custom has been greatly acted on by that of the snpe- rior castes, and the process of assimilation is hastened by every improvement in the material condition of the people. As they gain wealth they naturally strive to imitate their betters, {a) It is on custom that the rights of the widow in all the lower castes mnst really rest, (5) cnstom modiOed amongst them as in all cases, by the Act of the Legislature above referred to, and the equally important Act XXI. of 1860, which prevents loss of caste from affecting the right of in- heritance, (c) An important provision (Sec. 5) of the former Act is, that a widow remarrying, while generally forfeiting her rights through her first marriage, shall otherwise have the same rights of inheritance as if her subsequent had been her first marriage, (d) This extends the favour conceded to the p&t wife only in particular castes to every widow remarrying. Another is that (Sec. 7) which gives the disposal in marriage of the minor widow to her fother and his family instead of her husband's, (e)
The relation may or may not be created by contract, but once created it cannot, like ordinary contractual relations, be dissolved by contract, but constitutes a status itself the origin of special rights and duties imposed by the law.
(a) A striking instance of this is the decay of the polyandrous customs of the N&yars under British rule. These have changed from an indulgence at will on the part of the women after a mere cere- mony, to such strictness that even two husbands are now thought discreditable, a brother may not marry his sister-in-law either during his brother's life or after his death (Letter quoted above, p. 284. note b). Still however the N&yar marriage is dissoluble at will, which places it in an entirely different category from the Br^hmanical or Christian marriage.
(h) Comp. Sarasvattvil&sa, § 118.
(c) Mit. Chap. II. Sec. X. ; Steele. L. C 61, 26, 159.
((2) But it seems a marriage between persons of different castes is still generally impossible without a specific allowance by the caste law. See Narain Dhura v. BakhcU Gain, I. L. R. 1 Calc. 1. There is 9iju8 connuHi between many pairs of castes. See ex, gr. below. Sec- 7, Q. 6.
(e) The prevailing idea of marriage is that of a transfer of a woman as property to the family of her husband, who on his death have a right to dispose of her, even by sale, as in Gurgaon in the Panjab, and other districts. Pan. Cnst. L. vol. II. p. 118. SeelSk- Pt. II. Chap. XIII. para, 28, referred to above.
Bi.i,cH.ii,fl.CB,q.3.] WIDOW — BBMABBIBD. 427
Q. 1. — How far can a woman, married by " Pat" cere- mony, have a claim to her husband's property ? i.— She can claim a maintenance only. — Dharwar, 1846. Authority not quoted.
Bemark. — For this and the following seven cases, see the Remarks subjoined to Chap. II. Sec. 6a, Q. 37, and Sec. 3, Q. 16.
Q, 2. — A man of the Mar&tha Kunabi caste died. He had no near relation except his " Pat" wife. Can she inherit liis immoveable property ?
A. — K the deceased husband had declared himself sepa- rate from the other members of his family, and if he has not left a son, his widow can succeed to all his property.
Rutnagiri, May 22nd, 1849.
AuTHOEiTiES.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 3) ; (2) p. 136, 1. 4; (3*) Mib. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 3. — A man, not being on amicable terms with his first Pat-wife, took another wife by the Pat ceremony. The first Pit-wife lived for 18 years with her daughter. The man is now dead. His second P&t-wife having performed his fune- ral ceremonies and liquidated his debts, married another husband. The first wife has filed a suit against the second for a moiety of the property of the deceased. The question is, whether the claim is admissible, and whether the first or the second P4t-wife has a right to dispose of the property left by the deceased husband ?
A, — The widow has a right to prosecute her fellow-widow for the recovery of the property belonging to her husband, because he had not passed a deed of separation to her, accord- ing to the usage of his caste. As the second wife has mar- ried another husband, her right to the property of the de- ceased has become extinguished.
Khandesh, March 2nd, 1856.
428 HBIBS IN DIVIDED FAMILY. [iK^ijCHJi^eB,^?.
AUTBOBITIES.— (1) Yyay. May. p. 134, 1. 4 (ms AnOi. 2); (2*) Mit. Vyav. f. 56, p. 2, 1. 1 («ee Chap. I. Sec. 2, Q. 4).
Eemabk.— iSee Act XV. of 1856.
Q. 4.— Is the brother or a '^P&t'' wife the heir to the property of a deceased man ? A. — His brother is the heir.
Dharwar, December 20th, 1850. AuTHOEiTY.— ♦ Mit. Vyav. f. 56, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 5. — A deceased man of the Berada (a) caste has left a ''P&t" wife, her daughter, and a son of his brother. Who will be his heir ?
A. — If the deceased and his brother were separate, the widow will be the heir. If they were united in interests, the brother's son will be the heir. Dharwar, July \2thy 1851.
Atjthorities.— (1) Vyav. May. p. 134, 1. 4 («ce Aath. 3) ; (2) p. 136, 1. 4 ; (a*) Mit. Vyav. f . 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 6. — There are two persons who claim the right of inheritance, viz. a '^P&t'* wife, and a son of a separated brother. Which of these is the heir ?
il.— The '' pat'' wife.— DAawar, March 27th, 1866.
AuTHOBiTiES.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 3) ; (2) p. 136, 1. 4 ; (3*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 7. — ^Is a P&t" wife or a cousin the nearer heir to a deceased individual ?
A. — If the cousin was separate in interest from the de- ceased, the '^ Pdt'' wife is the nearer heir.
Dharwar, December 27thy 1851. Atjthoritt.— Mit. Vyav. f. 65, p 2, 1. 1 {see Chap. I. Sec. 2, Q. 4). (a) A caste of coltivators in the Southern Mar&tha Coantiy.
Bi.i,CH.ii^.7,q.l.] DAUGHTER. 429
Q. 8.-*A woman had a son by her first husband. On the death of the hnsband^ she took her son to the house of the second husband, to whom she was married by the '* Pit" ceremony. The second husband died. Can the son and the widow be his heirs ?
i.— The ''Pat'* wife will be the heir of the deceased, and not the son of her first husband.
Ahmednuggury Jawnwry 4ith, 1849.
0. 9. — A woman married by the '*P&t" ceremony to a Gujarathi of the Bhanga-S< caste, (a) twice went on a pil- grimage without his leave. When he died without issue, the wife returned and claimed his property. Should it be given to her, or to a cousin who lived separately, but per- formed the funeral rites of the deceased f
A. — The wife, who disregarded her husband during his life, can have no claim to his property after his death. It will go to the cousin who lived separately from the deceased.
Butnagiri, February 14th, 1846.
AuTHOBiTT.— Mit. Vyav. f. 56, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Bemaek. — It is nowhere mentioned that simple disobedience of the hDsband's orders disables the wife from inheriting. The wife, there- fore, will be her husband's heir.
SECTION 7.— DAUGHTER. (6)
Q. 1. — ^A man died, leaving a widow and a daughter. His property consists of a house. The widow married an- other husband. Which of these should be considered the heir to the house ?
(a) Bhanga-S<s are shopkeepers.
(h) Some commentators have thought that the daughter came in only as a putrikA. The Bmfiti Chandrik& contradicts this (Chap. XI. Sec. 2, p. 16). So too the Mit&ksbarA, Chap. II. Sec. 2, p. 6.
430 HEIRS IN DIVIDED FAMILY. [Bi.M;H-n,8.7,(i.L
A, — The widow, having married herself to another husband by the " P4t ^' ceremony, has forfeited her right of heirship. The daughter therefore is the heir.
Poonay April Srd, 1850.
ArTHORniES.-Cl) Vyav. May. p. 134, 1. 4; (2) p. 137, 1. 6; (3*) p. 137, 1. 7 {see Chap. H. Sec. 6a, Q. 11) ; (4*) Mit. Vyav. f. 55, p. 2, 1. 1 (eee Chap. I. Sec 2, Q. 4).
Remarks . — 1 . According to the Hindii Law, as interpreted by some authorities, the widow loses her right to the estate of her first bus- band on account of her unchastity. {See Chap. II. Sec. 3, Q. 16. But see Chap. VI. Sec. 3 c, Q. 6.)
2. Though the re-marriage of a widow is legalized by Act XY. of 1856, a remarried widow is debarred from inheriting from her first husband by Sec. 2 of the same Act. (a)
3. In a divided family, the daughter excludes remoter relatives, {b) as divided brothers and their sons, (c) the son's widow, {d) not so in an undivided family with surviving members, (e) See infruy Questions 4 and 10.
The custom subsisting in some Narvad6ri villages of excluding a daughter from succession to the village lands rests on a recognized inseparable connexion between the original proprietary families and their holdings. So "in the Panj&b where women do not transmit the right of succession to village lands ; this is because they marry
outsiders The exclusion is the means of keeping the land
within the clan and within the village (community)." Panj. Oust. Law, vol. II. p. 58. Daughters are (generally but not always excluded, ib, 145, 175, 177. In the same collection may be noticed a gradual growth of the right of the father to provide for his daughter out of tribal lands and to take her husband into his family very like what
(a) So as to the Maravers in Madras, though remarriage is allowed by the caste law, Mtiragayi v. Viramalcdl, I. L. R. 1 Mad. 226.
(b) Gorhha v. Eaghu, S. A. No. 216 of 1873, Bom. H. C. P. J. F-^r 1873, p. 181.
(c) Laximon v. Knehnahhaf, S. A. No. 342 of 1871, Ibid, for 1872, No. 23.
(d) 2 Macn. 43; and Coleb. in 2 Str. 234.
(e) Vinayek Lakshman et al v. CMmnabdi, R. A. No. 44 of 1876; Bom. H. 0. P. J. F. for 1877, p. 170.
B£.i,cH.n,8.7,q.l.3 DAUGHTER. 431
occnrred in Ireland and probably in other European countries in early times, (a)
A cQstom of male in preference to female inheritance to bh&gd&ri lands in Gujar&t was recognized in Pranjivan v. Bai Reva» {b)
4s. There is no general usage of the Mar&thA Country excluding females from succession to ordinary inam property. A priestly oflBce and the yritti or endowment appendant to it may stand on quite a different footing, (c) See above Chap. II. Sec. 6a, Q. 82. A widow may alien a vyitti to provide for her necessary sustenance, Q. 689, MS. 8urat, 19bh March 1852.
5. As to the nature of the estate taken by a daughter, reference may be made to Amritolal Bhose v. Bajonee Kant Mittevy {d) quoted in the Introduction, p. 105. According to the Bengal Law, on the daughter's death, the property goes to her father's heirs, to the exclusion of her husband and daughter, (e) and she cannot alien to their detriment. (/) In Madras and Bengal indeed even under the Mit&kshar& the daughter is held to take only an estate similar to that of the widow, {g) In Bombay the doctrine of the Mit&kshar& and of Jagann4th has been maintained except as to widows. It was said that a daughter succeeds to an absolute and several estate in the immoveable property of a deceased father, and has full right over snch property of disposal by devise, (h) In Bombay,, a daughter sacceeds to an absolute and several estate in the immoveable property of a deceased father, and has full right over such property^ as to the share which she takes as one of two or more sisters. {See above, Introd. p. 106, 109, 330, 337.) The property descends as
(a) See Sullivan's Introd. to O'Curry's Lectures, Vol. I. p. 170 ss. (6) LL. R. 5 Bom. 482.
(c) Vyankatrdv v. Anpumdhdi, R. A. No. 44 of 1874, Bom. H. C. P. J. F. for 1877, p. 302; Duneshwur v. Deoshunkur, Morris' Re- ports, Part I. p. 63.
(d) L. R. 2 L A. 113. .
(e) SeeColeb.Dig. Bk. V.T.420, Comm. ; 2Macn. Prin.and Prec. 57. (/) Doe dem. Colley Doss Bose v. Debnarani Koberanj, 1 Fulton,
B. 329; MussU Gyan Koowar et al v. Dookhum Singh et aZ, 4 C. S. D. A. R. 330 ; 2 Macn. H. L. 224 ; Ohotuy Lull v. Chunnoo Loll et al, 22 C. W. R. 496, C. R.
(g) Chotay Lall v. Chunno Lall, L. R. 6 I. A. 16; Mutta Vadugand- dha Tevar v. Dorasinga Tevar, L. R. 8 I. A. 99.
(h) Harihhat v. Damodarbhat, I. L. R. 6 Bom. 1/1, and cases there referred to ; Bdbdji bin Ndraycm v. Bdldji Gannesli, I. L. R. 6 Bom. 660.
432 HBIB8 IN DIVIDED FAMILY. [BK.i,cHji.8.7,q^.
strtdhana to the datighter's heirs, not the hosband's. (a) See Ques- tion 21 . The Privy Cooncil declined to pronounce on this in Ewrrydm DuU y. 8. Uppoornaih Doeiee et al. (b) But in Mutta Vaduganddha Tevar y. Dorasmga Tevar (c) the Judicial Committee say definitiyelj that the Mit&ksharft is not to be construed as conferring on any "woman taking by inheritance from a male a Strtdhana estate transmissible to her own heirs." It would seem, therefore, that the heritage taken by daughters must in future be regarded as but a life interest, whether with or without the extensions recognized in the case of a widow, except in cases governed by the YyavahAra Mayukha, Chap. lY. Sec. 10, para. 25, 26ss. {d) See 2 Macn. H. L.57.
6. Many replies of the d&stris pronounce an illegitimate daughter incapable of inheriting, but whether that would be so amongst Sftdru seems at least doubtful. See Steele, 180. She is entitled to mainten- ance and marriage expenses as a charge on the shares of both legi- timate and illegitimate sons, according to Salu v. Hari. (e)
Q. 2. — A widow married a second husband. She has a daughter by her first husband. The qnestion is whether the moveable and immoveable property of the first husband should be g^ven to his daughter^ who is a minor, or to the son of his separated cousin.
il.— The daughter is entitled to the property of her father as his legal heir.— Towna, July 20th, 1857. AuTHOKiTT.— Mit. Vyay. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4). Rkhabks.— iSee the preceding Question.
Q. 3. — A deceased person has left a daughter and an- other daughter's son. How will they inherit the deceased's property ?
A. — If the daughter is not married, or if she is in poor circumstances, she will take the property of her father, and perform his funeral rites. The deceased daughter's son, who
(a) NavcUram y. Ncmdkiahor, 1 Bom. H. C. R. 209. {b) 6 M. I. A. 433.
(c) L. R. 8 I. A. 99. 109.
(d) Sengamalaihammdl v. Valmjuda Mudali, 3 M. H. C. R. 312.
(e) S. A. No. 316 of 1876 (Bom. H. C. P. J. F. for 1877, p. 34).
Mj,cH.ii,8.7,Q.5.] daughti;r. 433
is a minor, is entitled to one-fonrth of his grandfather's property. When both the daughters are married, and are in similar circumstances with regard to their means of liveli- hood, the surviving daughter and the deceased daughter's son will be equally entitled to the property. Each of them should therefore take a half of it.
Ahmedmiggur, June 16th, 1848.
Authorities. — (1) Vyav. May. p. 134, 1. 4 {see Auth. 4); (2) p. 134, 1. 6; (3) p. 156, 1. 1 ; (4*) Mit. Vyav. f 55, p. 2, 1. 1 {see Chap. I. Sec. 2,Q.4).
Remibk. — ^The daughter alone inherits, as the daughter's son is one degree further removed. He would however share the inheritance with his aunt, if his mother died afler her father.
Q. 4. — A man's grandson died, leaving a widow. The man died afterwards. There are sons of his daughter. The question is, whether the daughter or her sons, or the widow of the grandson, will be the heir entitled to inherit the Watan of the deceased grandfather ?
A, — If the grandfather was a member of an undivided femily, his grandson's wife cannot be his heir. The right of inheritance therefore belongs to his daughter and her sons.
Sadr Addlat, September 2oth, 1838.
AuTHORrriES.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4); (2) f. 58, p. 1, 1. 5 and 9 ; (3) Yyav. May. p. 136, 1. 4.
By undivided, the d&stri means without partition having taken place between the grandfather and his son or grandson.
RsMARK. — The deceased person's daughter alone inherits the estate. In the case at 2 Macn. Prin. and Prec. of H. L. 43, a daughter is pre- ferred to a daughter-in-law. See also Q. 10, and MiLsei. Murachee Koov/r V. Musst. Ooima Koour. (a)
Q. 5. — ^A deceased person has left a step^mother and a daughter. Which of these is the heir ?
(a) Agra S. Report! for 1864, p. 171. 56 H
4f34 HEIRS IN DIVIDED FAMILY. [BK.i,CH.ii,8.7.q.«.
A, — If the step-mother is a separated member of the family, the daughter should be considered the nearest heir of the deceased. — Ahmednuggur, May 19ih, 1859.
Authorities.— (1) Yyav. May, p. 129, 1. 3 ; (2) p. 20, 1. 3 ; (3) p. 28, 1. 2; (4) p. UO. 1. 1 ; (5) p. 137, 1. 5 ; (6) Mit. Vyav. f. 46. p. 2, 1. 11 ; (7) f. 16, p. 2, 1. 16 ; (8*) f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Q. 6. — A Tapodhana (a) died, leaving a son. He had also nominated his sister^s son as his son. The son and the foster-son are both dead. The son has left a daughter. The foster-son has left a son. The daughter has been married to a Brahman, whose caste is called Taulklya Audlchya. It appears to be customary for the Tapodhana to intermarry with this caste. The question under these circurastauces is, whether the right of inheritance belongs to the daughter of the son, or the son of the foster-son ?
A, — A man who has a son has no right to nominate any other person as his son. It is further to be observed that a man of the Brahman, or Kshatriya, or Vaisya caste, cannot adopt a sister's son. The sister's son, therefore, is not the legal heir. The daughter, however she is married, in a fir&hman family, is the proper heir. Her right is not aflfected by her marriage into a higher caste.
Ahmedabady October 17 th, 1857.
Authorities.— (1) Vyav. May. p. 105, 1. 8 :—
" But a daughter's son and a sister's son are affiliated (i. e. allowed to be adopted) by Stidras." (Borradailo, p. 70; Stokes, H. L. B. 61.)
(2) Vyav. May. p. 104, 1. 7; (3) p. 134, 1. 4 {seeAuih. 5); (4) p. 137. 1. 5 J (5*) Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Rbmabk. — Bat see Gunpatrav ei al v. Vithohd et al. {b) It is not clear, however, that the parties in that case were, as the headnote
(a) The occupation of this person is the same as that followed by Quravas in the Dekhan. It is washing idols, and having charge of t temple.
(6) 4 Bom. H. C. R. 130 A. C. J.
BK.i,0H.n,g.7,q.8.] DAUGHTER. 435
says, Vailyas, see Oopdl Narhar Sdfray v. Honmant Ganeth Sd/ray, (a) and Narsain v. Bhutton Lall (6) referred to therein.
Q. 7. — There were two brothers who lived separate from each other. One of them died, leaving a daughter only. She did not spend any money for the funeral ceremonies of . her father. The brother of the deceased incurred some ex- pense on that account. The deceased has left a will^ be- queathing a portion of the property to his daughter. Can she claim more than the bequest^ on the ground of her being an heir of the deceased, or should the rest pass into the hands of his brother as heir ?
A, — A brother who lived separate from the deceased can- not be his heir merely because he performed his funeral rites. The daughter is the heir to the whole property ; but if the deceased has left a will specifying the portion to which her claim should be confirmed, and transferring the rest to his brother, the brother will inherit according to the will of the deceased; otherwise the daughter should take the whole property, paying the expenses incurred on account of the funeral rites. — Ahmednuygur, January lOih, 1848.
Authority.—* Mit. Vyav. f 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Eemabk. — A daughter succeeds in preference to a separated brother, (c)
Q. 8. — ^Two brothers lived separately from each other. One of them died. Will the daughter, brother, or step-bro- ther of the latter succeed to his property ?
A, — If the deceased was separate, his daughter will be his heir; but if he had not separated, his brother or (if there be no brother) his half-brother will be his heir. Poona, October 23rr7, 1846.
(o) I. L. R. 3 Bom. 273.
(b) C. W. R. Sp. No. for 1864, p. 194.
(c) Laxumon Guneshbhat v. Kriahnabhat, S. A. No. 342 of 1871 (Bom. H. C. P. J. P. for 1872, No. 23),
436 HEinS IN DIVIDED FAMILY. [BK.i.CH.ii,8.7,q.lO.
AuTUoaiTY.— • Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4). REXA.BK. — See C, Hureehur Pershad Doss v. Gocoolanund Doss, (a)
Q. 9. — There were two or three brothers, one of whom lived at the distance of three kos from the others. He was there for about 20 years. His daughter and son-in-law also lived with him as the members of the family. He is no?y dead, and the question is, whether his brother or daughter is his heir ?
A. — As the deceased lived in a different village, and as he has not left a better heir, or adopted a son, his daughter will be entitled to his property. — Dhai^ar, November 18th, 1850.
AuTHORrriEs—Cl*) Mit. Yyav. f. 56, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2) Vyav. May. p. 134, 1. 4 (see Auth. 1) ; (3) p. 131, 1. 8.—
" Narada Gift and acceptance ; cattle, grain,
houses, laud, and attendants must be considered as distinct among separated brethren ; as also the rules of gift, income, and ex- penditure. Those by whom such matters are publicly transact^ with their co-heirs may be known to be separate, even without written evidence." (Borradaile, p. 97 ; Stokes, H. L. B. 82.)
Q, 10. — The son of a man died while his father was alive. The father died afterwards. His daughter-in-law is alive. He has also a 'separated brother, and a widowed daughter. The question is, which of these is the heir ?
A. — The rule of succession laid down in the S&stra pro- vides that when a man, separated from his brother, dies without leaving male issue, his widow becomes his heir; that in hor absence, his daughter ; and that in the absence of the daughter, sooie other relatives have a right to inherit in suc(;e3sion. A daughter-in-law is not mentioned in the rule. She cannot, therefore, have any right to inherit the de- ceased's property. The daughter is the heir. A suitable provision must, however, be made for the support of the daughter-in-law.— fiff/rai, June 19tk, 1850.
(a) 17 C. W. R. 129 C. R.
H.i,OH.ii^7,q.l2.] DAUGHTBU. 437
AuTHOBiTiES.— (1) Vyav. May. p. 137, 1. 7 (see Chap. 11. Sec. 6a, Q. 11) ; (2) Vtramitrodaya. f. 203, p. 1, 1. 13 ; (3*) Mit. Vyav. f. 66, p. 2, 1 1 (see Chap. I. Sec. 2, Q. 4).
Eemabk. — S<ie Remark to Question 4, sttp-a ; and Introd. p. 128.
Q. 11. — A man, who was himself adopted, died, leaving a daughter. There is a brother of the deceased, i. e. a son of his natural father, who belongs to the same family, bat he is a distant relation of the branch represented by the deceased, being a cousin of five removes. Who will be the heir to the deceased's property, the daughter or the cousin ?
A, — ^When a separated member of a family dies without leaving any male issue, his daughter is the heir. If the deceased had not separated from the other branch, his consin is the heir. — Poona, March 27ih, 1850.
AiTTHORiTiES.— (I) Vyav. May. p. 134, 1. 4 (see Auth. 3j ; (2) p. 136, 1. 2 (see Chap. I. Sec 2, Q. 3) ; (3) Mit. Vyav. f. 65, p. 2, 1. 1 (tee Chap. I. Sec. 2, Q. 4).
Q. 12. — A person has died, , leaving a daughter who is under age. Should the certificate of heirship be given to the daughter, or to the cousin of the deceased, with instruc- tions to protect the property and the heir, and to get her duly married ?
A. — If the cousin is united in interests with the deceased, he may be granted a certificate, but if he be separate, the daughter of the deceased should be declared the heir, and placed under the protection of her cousin. Ahmednnggur, October 12th, 1846.
Authorities.— (1*) Mit. Vyav. f. 51, p. 1, 1. 10:—
" But sisters should be disposed oF iii marriage, giving them, as an allotment, the fourth part of a brother's share." (a) (Colobrooke, p. 286;Stokes, H. L. B. 393.)
(a) Regarding the explanation of the passage, see Colebrooke on Inheritance, p. 286. (Mit. Ch. I. Sec. VII. paras. 4, 6.) Though the passage does not expressly prescribe that the unmarried sisters should receive maintenance, this of course follows from the injunction to marry them, and to give them a dower.
438 HEIRS IN DIVIDED FAMILY. [BK.i,CH.it,8.7,q.l4.
(2*) Mifc. Vyav. f. 65, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Bkmabks. — 1. If the deceased belonged to an undivided family, the son or eons of his brother or brothers will inherit, and not his daughter. But she has to be kept by her relations up to the time of marriage, and to be married at their expense.
2. If the deceased was divided from his relations, the danghter inherits. As she is a minor she must have a guardian till she is married, which guardian will be the next paternal relation. I Str. H. L. 72.
Q. 13. — A man died. There are his male cousin and a danghter of 10 years. Which of these is the heir? If the cousin be heir, who should be entrusted with the protection of the deceased's daughter ?
il. — When a man, who has separated from his family, dies, his daughter becomes his heir. When a man, who is a member of an undivided family, dies, his daughter, as the nearest relation, is his heir. The cousin, however, will be the heir entitled to inherit the deceased's Watan and land, paying revenue to Government. The heir will be burdened with the obligation of getting the deceased's daughter mar- ried. If the daughter has already been married, the heir must afford her such protection as she would have received from her deceased father. — Surat, December 29th, 1846.
Authorities.— (I*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec 2, Q. 4) ; (2*) f. 51, p. 1, 1. 10 {see Chap. II. Sec. 7, Q. 12).
BEif ARK. — The doctrine of the 6^stri as to an nndivided family is incorrect. See the preceding case. He gives the Bengal rule as laid down in the Dftya BhAgn, Chap. XI. Sec. 11. para. 1. BntasMitra- misra points out in the ViramitrodHya.Transl. p. 181, Jimrtta Vahfina in another place (Dlya. BhAg. Cli. III. Sec II. para. 37) says that ina partition portions are not taken by daughters as having a title to the succession, though the quotation from Devala is not there relied on as Mitramisra supposed.
Q. 14. — A Kulatarani died. There are his daughter, some second cousins, and their sons. Which of them will inherit the deceased's Watan? These relations of the deceased
Bi.i,CH.ii,8.7,<i.l5.] DAUGHTER. 439
lived {Separate from him. The deceased received his share separately. When be and his wife died, his property was considered lieirless, and sold as unclaimed. Who will be the heir to this property ?
i. — If the deceased had declared himself separate, and had received his share of the property, including the Watan, separately, his daughter alone will be his heir. If the Watan was not divided, his cousins will be the heirs of the deceased. — Ahmednuggur, June SOth, 1848.
Authorities.— (1) Vyav. May. p. 83, 1. 3; (2) p. 137, 1. 5-7; (3) p. 157,1. 3; (4) p. 159.1. 6;(5)p 156,1. 5; (6) p. 155,1. 6; (7) Mit. Vyav. f. 46, p. 2, 1. 4 ; (8) f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q.4).
Q. 15. — A. daughter of a person, having orally renounced her right to her father's property, refused to perform his funeral rites. A cousin of the deceased, therefore, perform- ed the rites. The daughter now asserts that she did not renounce her claim to the inheritance, and wishes to have it recognized. Who will be the heir under these circum- stances, the daughter or the cousin ?
A, — It appears that the deceased has left a will to the effect that his property should be given to him who should perform his funeral rites, whether it were his daugh- ter or the cousin. If it could bo proved that the former renounced her claim, and directed her cousin to perform the rites, and take the property of the deceased, her claim would be inadmissible; but if no proof of this be forthcoming, the daughter by law is the heir, and entitled to the inheritance. In this case the daughter would be obliged to pay the cousin the expenses which ho might have incurred in performing the ceremonies. — Tanna, December 29thy 1848.
Authorities.— (1). Vyav. May. p. 134, 1. 4 (see Auth. 4) ; (2) p. 137» 1. 6; (3) p. 138, 1. 3; (4») Mit. Vyav. f. 66. p. 2, 1. 1 {see Chap. I. 8«Q.2,Q,4).
440 HEIRS IN DIVIDED FAMILY, [be.i.ch ii.8,7,^l7.
Q. 16. — Will a man's property descend to Lis married daughters or to his brother's wife ?
A. — If the deceased was a member of an undivided family, and has left no sons, his brothers will be his heirs, and in the absence of brothers their wives ; but if the deceased had separated [from his brothers] his daughters will be his heirs. — Poonuj Deceniber Zist, 1845.
Authorities.— (1*) Vyav. May. p. 136, 1. 2 {see Chap. I. Sec S, Q. 3) ; (2*) Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Rbmabk.— The brother's widow inherits only in case the deceased {A) and his brother (B) were united in interests, and A died before B. For in this case the share of A would fall first to B (Authoritj \\ and next to B's wife (Authority 2).
Q, 17. — An inhabitant of Gujarath had a daughter-in- law, who was pregnant at his death. He therefore trans- ferred his property by a deed of gift to his son-in-law, on condition that if the result of the pregnancy shonld prove a son, the whole of his property should be given to him ; that if a daughter, her marriage expenses should be defrayed from the property, and his daughter-in-law supported dar- ing her lifetime from the same source. After having made a deed of gift to this effect, the man died. His death was followed by that of his daughter-in-law without issue, and of his son-in-law. There is only a daughter of the man, i\ e. the widow of his son-in-law, who obtained the gift. Can she bo considered the legal heir to the property ?
A, — When a man makes a gift of any thing, and at tie same time retains his proprietary right to it, the transaction cannot be considered a gift. This is one of the rules of the S&stra ; and another is, that when a man dies without leav- ing male issue, and wife, his daughter is his legal heir. In the case under reference, the man who made the gift of hia property retained his right to it, as shown by the condition of the grant, that the property was wholly to pass to the
Bi.i,CH.u,8.7,%.17.] DATTGHTBR. 441
son of his daughter) in case he should come into existence. The deed of gift is therefore illegal ; and when it is set aside^ the daughter of the man succeeds.
Kluindeshj January 4th, 1853.
AuTHOBirres.— (1) Vyav. May. p. 196, 1. 5 ; (2) p. 134, 1. 4 (see Auth. 4); (3) p. 121,1. 2; (4*) Mit, Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
RncASK. — ^The gift may, however, be accompanied by a trust or daty to be fulfilled by means of it or in return for it. (a) It must be completed by possession ; (6) at least as against a subsequent transferee from the donor, (c) When the purpose of a gift is not fulfilled, as by non-execution of the trust or other annexed duty, the Hindd Law annuls the donation, and this is so though the proposed consideration (for so it is regarded) fail but in part, {d) The gift is thus attended with a kind of condition subsequent of defeasance. Under the Roman law, as under the codes derived from it, a gift was revocable by the donor for ingratitude, (e) For non-satisfaction of charges it could be revoked by his successors. (/) The Indian Courts do not now cancel the gift : they enforce the annexed duty according to the equitable doctrine of trusts, (g) subject to the limitations noticed above, pp. 178 ss.
(a) Bamhhat v. Lakshman, I. L. R. 5 Bom. 630.
(b) lb., VUhab'oo Vasud&v v. Chanaya, B. H. C. P. J. F.for 1877, p. 324; LflMt*5^v.Bdi<4mn<fI.L.R.2Bom. 299; Earjiwan Anandrdin
► V. Ndran Hanblim, 4 Bom. H. C. R. 31 A. 0. J.
(c) 2 Macn. H. L. 207 ; 2 Str. H. L. 427.
(d) See Coleb. Dig. Bk. 11. Chap. IV. T. 56, Comm.
(e) See Coleb. Obi. § 657 ss.
(/) Goud. Pand. p. 201.
ig) See the Transfer, of Property Act, IV. of 1882, Sees. 126, 129; Indian Trustr Act, 11. of 1882, Sees. 1, 45, 66, 61; Specific Belief .Act, I. of 1877, Sec. 54; Acts XXVII. and XXVIII. of lS66;Bam Naram Smgh v. Rcmooii Paurey, 23 C. W. R. 76. Acts 11. and IV. of 1882 are not in force in Bombay* and where Act II. is in force its operation amongst HindAs is much limited by Sec. I., which reserves the classes of trusts which most frequently form the subjects of litigation. 56n
442 HEIBS IN DIVIDED FAMILY. [BK.i,cn.i!,s.7,Q.ig.
Q. 18. — Can the daughter of a deceased Mahar dedicated as a Morali^ as well as her son^ be considered heirs to his - property ?
A. — The Sistras are silent as to 'the practice of dedicating females as Muralls. The Murali and her son would, how- ever, according to the custom of the castct succeed to the property left by her father. — Dharwar, August 11/A, 1857.
AuTHOEnr.— Mit. Vyav. f. 56, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 19. — A deceased person has left no male issue, but has left four daughters. One of them became a widow when she was a child, and therefore lived in her father^s house, making herself useful to him as a servant. The deceased has a nephew, who lived separate from him. Which of these two persons will be the heir ?
A. — When a deceased person has no widow, his daughters are his heirs. Of these, the one who is not married has a superior claim ; and when all are married, the one in poor circumstances has a superior claim. Those who are in good circumstances are, however, entitled to a small share of the property. Small shares of the property should be given to the weaJthy daughters, and the rest to the one in poor condi- tion. The nephew, whose interests are separate, has no right whatever. — Ahmednuggurf September 21«f, 1847.
Authorities.— (1) Vyav. May. p. 1S7, 1. 6 : —
•* If there be more daughters than one, they are to divide (the estate), and take each (a share). In case also where some of them are married and some unmarried, the unmarried ones alone (sacceed),by reason of this text of K&ty&yana .— * Let the widow succeed to her husband's estate provided she be chaste, and in defjEUilt of her, the daughter inherits, if wtmarri^d.'
" Among the married ones, when some are possessed of (other) wealtk and others are destitute of any, these (last) even will obtain (the estate). From this text of Gautama : — • A woman's property goes to her daughters, unmarried, unprovided for. Unprovided, destitute of wealth. Those acquainted with traditional law, hold that the word
Bf.i,0H.ii,8.7,q.80.] DAUGHTER. 448
woman's (wife's) includes the fetlier's also.' " (Borradaile, p. 103 ; Stokes, H. L. B. 86.)
(2) Vyav. May. p. 83, 1. 3; (3) p. 157. 1. 5; (4) p. 159, 1. 5 ; (5) p. 166, 1, 5; (6) p. 155, 1. 6; (7) Mit. Vyav. f. 46, p. 2, 1. 14; (8*) f. 68, p. 1,1. 5(«ee Auth.l).
BiMABKS. — 1. Comparative poverty determines the preference of married daughters to succeed, (a) Failing a maiden daughter, the succession devolves on an indigent married daughter though childless, (b)
2. The difEerent position of daughters in relation to each other as heirs of their fiither's property in Bombay and elsewhere is considered in the Introd. above, p. 106-109.
3. In Amritlal Bose v. Bajoneckemt MiUer, (c) (a Bengal case), it is said that a heritable right vested in one of two sisters at her father's death is not extinguished by her becoming a childless widow, in whom as such the right could not have vested. She may therefore succeed to her sister who took at first as the preferable heir, and 60 exclude that sister's son, contrary to the law in Bombay. The Hindti law does not deprive, on account of supervening defects (not amounting to an incapacity for holding property), of an inheritance once actually taken or '' vested in possession" : see the case of the in- continent widow, below. But where successive heirs are provided to the same person, the analogy of the widow's estate and those following it, would seem to point to the temporary estate being regarded as a prolongation of the original one, and the claims of al- leged heirs being estimated according to their condition at the end of the derived interest immediately preceding. The judgment therefore may be regarded as a substantial extension of the rights of those having latent interests at the death of a father.
Q. 20. — A man of the Sftdra caste has left two widowed daughters. Which of them will be his heir ?
A. — The one who is wealthy cannot claim the property. The poor one will be his heir. If both are in similar cir- cumstances, each should receive half the property.
Sholapooi', September 26th, 1846.
(a) BaMbdi v. Manchhdbdi, 2 Bom. H. C. R. 5 ; Poli v. Ndroium Bapii ei al, 6 Bom. H. C. R. 183, A. C. J. (6) Srimati TJma Deyi v. Qokoolannnd Dasj L. R. 5 I. A. 40. (c) L. R. 2 I. A. 113.
444 HEIRS IN DIVIDED FAMILY. [bi.i,ch.ii^M1.
AuTHOBiTT.— ♦Vyav. May. p. 137, 1. 6 (w Chap. II. Sec. 7, Q. W). Remark.— 1SS90 the Remark to Q. 19.
Q. 21. — A deceased person has lefb two daughters^ one of whom has applied for a certificate that she is lus hdr. Shoald it be given to her ?
J,-^ The two daughters have equal right to the property of the deceased, and one of them may therefore have a cer- tificate stating her right to one-half of it.
Poona, October 12th, 1846. AuTHORnv.— Vyav. May. p. 137, 1. 6 {see Chap. II. Sec. 7, Q. 19).
Rbhark. — In the cases of KaMama NacMar et al v. Dorasinga alias CkvurivaUdba, (a) and BadhaJeUhen v. Bajdh Ram Mundtd d d, {h) different views are taken of the devolution of the property inherited by daughters. See the Section on Strfdhana, p. 265 ss, and above,
Q 1.
SECTION 8.— DAUGHTER'S SON.
Q. 1. — A man died. There is a widowed daughter of his daughter, and a son of his other daughter. Which of these is the heir? And if both are heirs, in whatp^opo^ tion should they share the property ?
A. — The daughter's son is the heir.
8ura(, June lith^ 1853.
AuTHoarriES.— (1) Viramitrodaya, f. 205, p. 2, 1. 2 (*ee Auth. 2) ; (2*) Mit. Vyav. f. 58, p. 1, 1. 9 :—
" By the import of the particle * also ' (Section I. § 2), the daugh- ter's son succeeds to the estate on failure of daaghters. Thas Vishm says, ' If a man leave neither son, nor son's son, nor (wife, nor female) issue, the daughter's son shall take his wealth. For in regard to obsequies of ancestors, daughter's sons are considered as son's sons.* " (Colebrooke, Mit. p. 342 ; Stokes, H. L. B. 441.)
(a) 6 M. H. C. R. 810. (» 6 C. W. R. 147.
BK.i,CB.ii,8.8,q.2.] DAUGHTEB's 80K. 445
BBKAaKS.— 1. Danghterg' sons iiekeper ea/pita. (a) They are ex- claded by the Boryival of any daughter, (b) Bat in Badhakitihen V. Rt^rain, (c) a Bengal case, it was held that the son of a daaghter, who was nnmarried at the time of her succession, succeeds to the paternal estate, to the exclusion of her married sisters.
2. According to the Mit&ksharft, a daughter's son takes his maternal grandfiE^her's estate as fidl owner, and on his death sudi estate de- Tolyes on his heirs and not on the heirs of his maternal grand&ther. (d)
Q. 2. — A man^ having Burvived his 8on> died^ leaving a daughter-in-lawj and a daughter's son. Which of the two succeeds lo \na property ?
4. — ^The danghter-in-law, by virtue of her heirship to the son of the deceased^ will be his heir. The daughter's son will not be the heir. His right is not superior to that of the danghter-in-law, because it is declared in the bfistras that no son shonld be recognized as heir in the Kali age^ other than the begotten and the adopted. — Khcmdesh^ 1848.
AuTHOBiTiES.— (1) Vyav. May. p. 134, 1. 4; (2*) Mit. Vyav. f. 68, p. 1, 1. 9 (see Chxg. II. Sec. 8, Q. 1).
Remabxs.— 1. The daughter's son inherits, according to Auth. 2, if the grand&ther died after his son. Otherwise the daughter-in-law is to be preferred, as in MahcUaami v. Grandsons of Kripa Shoohul; (e) contra B. 8hen Sulrae Smgh v. Bdhotmt Singh, (f) In Ambawow v. Rutton Krishna et al, (g) it was held that a daughter's son precedes a grandson's widow. See Sec. 7, Q. 4.
2. llie dftstri's remark refers to '' the putrikft-putra," the son of an appointed daughter, who according to the ancient law was reckon-
(a) Bam Swaruih Pandey et al v. Bahoo Basdeo Singh, 2 Agra H. C. B. 168 ; Ramdhtm Sem etaJy. Kishenkanih Sein ei al, 8 G. S. D. A. R.100.
(b) Musst. Bamdan v. Beharee LaU, 1 N. W. P. H. 0. B. 114.
(c) 2 Wyman's R. Civil and Cr. Eeporter, 162. (cQ Sibta V. Badri Prasad, I. L. R. 3 All. 184. (e) 2 Borr. 657.
(/) Calc. S. D. A. B. for 1888, p. 490.
(g) Reports of Selected Cases (1820-40), 1st Ed. p. 132, 2nd Ed. p. 150.
446 HEIB8 IN DIVIDED FAMILY. [BK.i,CH.u,i.8,(i.4.
ed amoogst the ** twelve sons/' bat whose heirship in that character would not now be recognized.
Q. 3. — ^A man died. There are a son of his daughter, and a second cousin. Which of these is the heir ?
A. — ^If the deceased was a separated member of the &mily, his daughter's son is the heir. If he and the second cousin have lived as members of an undivided family, the cousin will be his heir. — Ehandeshy Atignst 25th, 1853.
AuTHoaiTiEs.— (1) Vyav. May. p. 134, 1. 4 ; (2) -p. 138, 1. 2 (tee Auth. 4); (3*) Vyav. May. p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 8); (4») Mit. Vyav. f. 58, p. 1, 1. 9 {see Chap. 11. Sec. 8, Q. 1).
Q. 4. — A Brahman died without male issue. Whilst the funeral rites, including the ceremony of ''Sapind!/' were performed from the first day by his brother's son, in con- formity with the deceased's direction, his daughter's son performed them from the eleventh day. Which of these will be the heir of the deceased ? If the brother's son is entitled to the property, can the costs of the funeral cere- monies performed by the daughter's son be paid to her ?
A. — When a person who had separated from his family dies without male issue, his first heir is his widow. In her absence his daughter, and if a daughter is not in existence^ her son is the heir. In the case under reference the daugh- ter's son, who performed the funeral rites, is the heir. The nephew, who had separated from the deceased and who performed the rites in accordance with the written directions left by the deceased, cannot be considered the heir, though he is entitled to the costs of the rites.
Tanna, September 6th, 1847.
AuTHcmiTiEs.— (1) Vyav. May. p. 138, 1. 2:—
(Vishnu) :— " If a man leave neither son nor son's son, nor (wife, nor female) issue, the daughter's son shall take his wealth. For in regard to the obsequies of ancestors, daughter's sons are considered son*s sons." (Borradaile, p. 103 ; Stokes, H. L. B. 87.)
»K.i,cH.ii^.9,Q.l.] MOTHEB. 447
(2) Manu IX. 136 :—
"By that male child whom a daughter, whether formally appointed or not, shall produce from a husband of an equal class, the maternal grand&ther becomes the grandsire of a son's son ; let that son give the funeral oblation and possess the inheritance." (Colebroke, Inh. p. 343; Stokes, H. L. B. 441.)
Q. 5. — Can the male offspring of a fcJftdra woman by her second husband succeed to her father's property ?
A. — As there is no prohibition in the S&stra against remarriage by a woman of the SAdra caste, it is generally resorted to. The male offspring by a remarriage will there- fore be the legal heir to his maternal grandfather's property.
8adr Addlat, November I7th, 1838.
AuTHOKrriES.— (1) Mit. Vyav. f. 55, p. 2, 1. 1; (2) f. 58, p. 1, 1. 9 (see Chap. II. Sec. 8, Q. 1); (3) Manu. IX. 132 ; (4*) Nirnayasindhu, Par. III. Pra. I. fol. 63, p. 2, 1. 7 :—
Since (the following passage) is quoted in the Hem&dri :—
** The remarriage of a married woman, the (double) share given to an elder brother, the killing of cows, the (appointment of a brother to cohabit with the) brother's wife, and (the canying of) a water pot, these five (actions) ought to be avoided in the Kali (age).*'
Remakks.— 1 . The HindA Law of the 6&stras forbids the remarriage of widows of all classes. (See Auth. 4.) Consequently the son of a remarried woman is to be considered illegitimate, and as such not qualified to inherit except under caste custom. See Ch. II. Sec. 3, Q. 16.
2. As the marriage of widows is legalized by Act XV. of 1856, the P&t wife's son inherits. See above, p. 413.
SECTION 9.--M0THER.
Q, 1. — A person executed a bond and a deed of separa- tion in the name of a woman and her son* Can the woman sue on the bond after the death of her son ?
A. — ^The mother, being the heir of her son, can do so. Poonay August 11th, 1845,
448 HEIRS IN DIVIDED FAMILY, tBE.i,CH.ii,B^,q.l.
AuTHOHHY.— ♦Mit. Vyav. f. 58, p. 1, 1. 11 :—
^ Onfiulore of those beirst the two parents, meaning the mother and the father, are successors to the property.
** Although the order in which parents snooeed to the estate do not clearly appear (from the tenor of the text, Seotion I. § 2), since a conjonctive compound is declared to present the meaning of its sevenl terms at once, and the omission of one term and retention of the other constitute an exception to that (complex expression), yet as the word * mother ' stands first in the phrase into which that is resolvable, and is first in the regular compound * mother and ibther,' when not reduced (to the simpler form, pitarau, * parents ') by the omission of one tenn and retention of the other ; it follows from the order of the terms and that of the sense which is thence deduced, and according to the series thus presented in answer to an inquiry concerning the order of suc- cession, that the mother takes the estate in the firat instance, and on fiiilure of her the father." (Golebrooke, Mit p. 344 ; Stokes, H. L. B. 441-2.)
Bbkakks. — 1. On the mother's death the succession goes to the then next heir of the son, according to P. Bachnajee y. F. VenkcUappadu. (a) See above, pp. 110, 328, 338.
2. Manu gives apparently contradictory directions as to the precedence of the two parents. {See Manu IX. 185, 217.) Yijn&nes- vara's argument is controverted by Ntlakan^ba, Vyav. May. Chap. IV. Sec. 8, p. 14. The Smfiti Chandrik& too rejects it. See Chap. XI. Sec. 3. {b)
3. In Gujar&th the father is preferred to the mother as heir to their son. (c)
4. A mother of aGirasia was held entitled to reodve the Girasi haks from Government, upon the death of her son. (d)
(a) 2 Mad. H. C. B. 402.
(b) In the oldest form of the Salic law the inheritance is given to the mother next after the sons. After her came the brother and sister on equal terms, and after them the mother's sister. In the next stage we have "if there be no mother or fiither" ; then "if no father or mother." The " sorores patris** in like manner acquire precedence in the later law over the •' sorores matris.'* But female succession* first to land at all, and then to the " terra salica" (probably the estate of the Hall i. e. for maintenance of the household) is throughoot excluded. See fiessels and Kern, Lex. Sal. 379-886.
(c) Klwdliabliai Mahiji v. Bodhar Dala, I. L. R. 6 Bom. 54l.
(d) Bat Uuicdha v. The Collector ofSarai, R. A. No. 24 of l^^?* Decided 30th November 1870 (Bom. H. C. P. J. F. for 1870).
Bt.Mn.n,8.9,^8.] MOTHEB. 449
Q. 2. — A son of 7 years of age, of a man of the Parft caste, died. His father is in prison. The son's mother has appUed for a certificate of heirship. Can it be granted toher?
A. The father is the heir of his son if he should die be- fore his marriage^ and in the absence of the father, his mother is the heir. — Poona, April ISthy 1857.
AuTHOBima.— (1) Vyav. May. p. 138,1. 3; (2) Mit. Vyav.*f. 58, p. 1, 1. 11 (see Chap. II. Sec. 9, Q. 1).
Reharks. — 1. There are no special rales regarding the succession to the property of an infant.
2. If the property of the deceased son is separate property, as the context of the question seems to indicate, consisting in presents from relations or friends, it falls under the general rules which regulate the succession to the property of a separated person who has no male issue, and consequently the mother inherits before the father.
See the case of Naraaapd 8akhd/rdm, (a) and the Introduction! Section on Strtdhana. The estate which the mother takes in the property of her deceased son is according to the case similar to that which a widow takes in that of her deceased husband. See also P. Bachvraja v. Venkatappadu. {b)
Q 3. — ^In the case of some money being due to a de- ceased person, who has a right to claim the payment, his mother or his widow ? the latter being notoriously adulter- ous, and pregnant by illicit intercourse.
A. — The mother has the right to recover the money, even if she be separate. The widow has forfeited her right in consequence of her bad conduct.
Ahmednuggur^ September 25th, 1849.
ATJTH0BITIB8.— (1) Vyav. May. p. 136, 1. 8 :>—
** But a wife who does malicious acts injurious to her husband, who acts improperly, who destroys his eflTects, or who takes delight in being faithless to his bed, is held unworthy of separate propefty." (BorradaUe, p. 102 ; Stokes, H. L. B. 86.)
(a) 6 Bom. H. C. R. 216 A. C. J. (h) 2 M. H. C. R. 402. 57h
450 HEIBS IN DIVIDED FAMILY. [BKa/m,n^,%S.
(2) Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4); (S*) f. 68, p. 1, 1. 11 (see Chap. II. Sec. 9, Q. 1).
RxMABK. — " Even if she be separate." It does not matter whether the mother lived with her son or not, since she inherits, on Hhe ex- clusion of deceased's widow, as the nearest heir to a " separate, not reunited, person, who has no male issne."
Q. 4. — A man died, leaving two widows. One of them had a son, who also died afterwards. Which ofthesunri- vors is entitled to the property of the deceased as his heir?
A, — The son became heir of the deceased father, and when the son died, his mother became his heir. The step-mother is not his heir. — Dharwar, October ISth, 1852.
AtJTHOEiTiES.— (I) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2) f. 55, p. 2, 1. 7 ; (3) f. 58, p. 1, 1. 11 {see Chap. II. Sec. 9, Q.l);WVyav.May.p.83,1.7.
Q. 5. — A man died, leaving two sons by two different wives. The son of the younger wife was a minor, and his share was therefore deposited by the father with a banker. The son afterwards died. Has his mother or his step- mother the right to inherit his property ?
A, — ^The mother of the deceased.
Ahmednuggur, April 3rd, 1857.
AUTHOBinES.— (1) Mit. Vyav. f. 55, p. 2, 1. 8 ; (2) f. 61, p. 1, 1. 3; (3) f. 46, p. 1, 1. 9 ; (4*) f. 58, p. 1, 1. 11 {see Chap. II. Sec. 9, Q. 1); (5) Vyav. May. p. 2.
Q. 6. — On the death of a man his estate was entered in the public records in the name of his son. The son subse- qnently died, and there remained two claimants, namely, the son's mother, who was married by " P&t," and his step- motlier, who was married by " Lagna." In whose name should the estate be entered 7
A. — If the widows live together, the one who by age and abilities appears superior, should be considered entitled
K.i,0H.n,8^,q.7.] MOTHEB. 461
to have the property registered in her name. If they are separate the mother of the deceased son should have a pre- ference to the other. — Dharwar, May bth, 1858,
AuTHOKiTiES.— (1) Mit. Vyav. f. 20, p. 1, 1. 16; (2*) f. 58, p. 1, 1. 11 (m Chap. II. Sec. 9, Q. 1).
Beicabk. — The 6&stri seems to have thought of the case of two widows who after their husband's death became co-owners of his property, (a) In this case the land mast be entered in the name of the deceased son's mother, since she is the sole heir of his property.
*Q. 7. — A man died^ leaving a widow and a son. He held a Des^igiri Watan^ which was his ancestral property. The mother and the son used to manage the Watan con- jointly. The son afterwards died, leaving a widow and a male child. The latter died subsequently. The question is, whether the mother or the grandmother of the male child is entitled by right of inheritance to take the Des&igiri and other property ? Are both of them entitled as heirs ?
A. — ^The mother is the nearest relation of the child. She is entitled to inherit the property of her son. She cannot, however, transfer the Dessligiri, &c., to others by sale, gift, or mortgage. She should live upon the proceeds of the property. — Surat, July 20th, 1854.
Authorities.— (1) Mit. Vyav. f. 65, p. 2, 1. 13 {see Auth. 2); (2*) f. 58, p. 1, 1. 11 (fee Chap. U. Sec. 9, Q. 1); (3) Vyav. May. p. 138, 1. 5 (fee Auth. 2) ; (4) p. 135, 1. 2 (fee Chap. II, Sec. 6 a, Q, 6); (5) Mann IX. 187.
Eemabk. — InNarsappa v. 8akkaram,(b) it was held that a mother inheriting from a son takes the same estate as a widow from her husband. In Sakharam v. Sitaba (c) this is said to be settled law. The d&stris in such cases as Q. 3, agreed with the answer here given that the mother inheriting becomes herself the proposiia for any further descent. See further above, Introd. p. 330 ss. The MitAkahaHl
(a) Bhugwandeen Doobey v. MynaBaee, 11 M. I. A. 487. Above, p. 103. {b) 6 Bom. H. C. R. 216. (e) I. L. B. 3 Bom. 353.
452 HBIBS IN DIVIDED FAMILY. [BK.i,CH.iiM^a.
Chap. I. Seo. 1, paras. 12, 13, says that where there is heritage there is ownership, and in Chap. II. Sec. 1, paras. 12, 39, that the widow, and failing her the parents, take the heritage of a separated sonless man. The daughter's ahsolute right is recognized as arising under the same rule as applies to the widow and the parents, (a) The mother's estate therefore like the widow's must, according to the recent decisions, be regarded as anomalous, and limited by principles foreign to the Mit&kshar&. (See above, p. 328, 332, 336.)
Q. 8. — A man possessed a house, and held some cash allowances called Desiigiri, Muglai, Sirp&va Ohirdfi, and Vazifa. He died leaving a widow and a son. The latter, who was a minor, died subsequently. The paternal uncle of the man received the Watan allowances. The house was also in his possession. He received a certificate declaring him to be the heir of his nephew. The man's widow has obtained a certificate declaring her to be the heir of her son. On the strength of this certificate, she claims the Watan allowances. These allowances are the ancestral property of the &mily. Supposing the deceased son's grandfather had divided his property between himself and his brother, to whom will the right of claiming the house and the allowances belong ? and if the division has not taken place, to whom will the same right belong ?
A, — On the death of a man, his son becomes his heir. His right is not affected by the separation or union of the father and other members of the family. According to this rule, the son in the question became heir of his father. On his death, his mother can claim to be the heir of her sod. She therefore has a right to the Watan^ house, and other property of the deceased. — Surat^ July SOth, 1865.
AuTHoniTiES.—Cl) Vyav. May. p. 83 ; (2) Vtramitrodaya, f. 193, p. 1, I. 2; (3) Manu, IX. 137; (4) 163; (5) Mit. Vyav. f . 68, p. 1, 1. 11 («« Chap. II. Seo. 9, Q. 1).
Rbmabk. — The mother inherits only in case her husband or son had separated from the rest of the family.
(a) See EaHbhat v. Damodharbhat, I. L. R. 3 Bom. 171.
u.i,0H.ix,8.10,q^.] FATHER. 453
Q. 9. — A woman of the ** Sudra'^ caste had a son by her first husband. She married herself by the *' Pat" ceremony to another husband, with whom she and her son lived. When the son came to age he was married at the house of his mother's second husband. A few years afterwards the son and his wife died without issue. The question is who should be considered his heir ?
A, — The mother is the heir, and not her second husband. Poona, November 26th, 1851.
Authorities.— (1*) Mit. Vyav. f . 65, p. 2, 1. 1 {see Chap. I. See 2, Q. 4); (2*) f. 68, p. 1, 1. 11 {see Chap. II. Sec. 9, Q. 1).
Bevabk. — ^According to Act XV. 1856, Section II. the remarried mother cannot, it might seem, inherit from her first husband's son ; bat the decisions recognize her heritable right. ( See also fik . I. Chap . VI. Sec. 8 c, Q. 7.)
SECTION 10.— FATHER.
Q. 1. — Should the younger brother or the father of a deceased person receive the certificate of heirship ?
A. — The father is the proper heir, but the younger brother may obtain the certificate if his father has no objection to it. Buinagherry, June 11th, 1846.
AuTHOBiTiES.— (!♦) Mit. Vyav. f. 66, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2*) Mit. Vyav. f. 68, p. 1, 1. 11 {see Chap. II. Sec. 9, Q. 1). Rbmabk. — Vide Bajee Bapoojee v. Venoobai, quoted in Section 11,
Q. 2. — ^A man brought up a son of another man and got him married. At the time of the marriage he bestowed certain necessary jewels and articles of dress on the bride. The son died subsequently without issue. His widow con- tracted a " P&t'^ marriage with another man. It has there- fore become necessary for the woman to restore the jewels and the clothes. The question is, whether the property should be taken by the father of the boy^ or the widow of the man who brought him up ?
464 HBIBS IN DIVIDED PAMILT. [BK.i,OH.n,Ell,aJB.
A. — The son was not adopted^ but was simply brought up and protected by the man. His father therefore has a right to the property mentioned in the question. Surat, April Uth, 1850.
AuTHoarriBS.— {!*) Mit. Vyav. f. 66, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2*) f. 68. p. 1, 1. 11 {see Chap. H. Sec. 9, Q. 1).
SECTION 11,— BROTHERS.
Q, 1. — Two brothers livecj separately from each other for 32 years. One of them, who had brought up a girl and got her married^ died. The question is, who should be considered his heir 7
A. — The surviving brother is the heir, and not the foster- daughter. — Rutnagherry, March 8th, 1851.
AuTHORrms.— (1) Vyav. May. p. 134, 1. 4 («ec Auth. 2); (2) Mit Vyav. f . 65, p. 2, 1. 1 (see Chap. I. See. 2, Q. 4).
Bekabk.— The brother inherits before the widow of a pre -deceased son. (a) A separated father would ezclnde a separated full brother, as well as half-brothers, who again, being united with their fother, would exclude the full brother of the original proprietor, (b)
Q. 2. — A Paradesl kept a woman, by whom he had some daughters. There are also his brothers. The Parades! is dead, and the question is, who should be considered his heir?
A. — The brothers. — Tanna, June 4th, 1852.
Atjthoeitt.— Mit. Vyav. f. 66, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Q. 8. — A man had three sons and a nephew (brother's son), whose father died when he was only three days old. The man had brought the young child up with his sons* Two sons separated themselves from the rest of the family,
(a) Venkapa v. Holyava, S. A. No. 60 of 1873 (Bom. H. C. P. J. F. tor 1873, No. 101).
(b) Bajee Bapoojes y. Venoobai,8. A. No. 282 of 1871; (Ibid, for 1872, No. 41).
Bi.i,cH.n,8ll,^4.] BBOTHBBS. 466
while the third and the nephew Uved as an undivided family. The nephew died, and his widow remained with the third son, who also afterwards died. The question is, whether the widow of the nephew or the two separated sons should succeed to the property of the deceased person 7
A, — The wife of the nephew has a better claim, in case the nephew and the third son had an identity of interest. Dharwar, September SOth, 1857.
AuTHoarrT,— Mit. Vyav. f. 6f , p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
RsMABK.^-The facts of the case appear to be these. One (C) of three brothers A, B, C, was united in interests with a married first cousin (bhr&tfivya) D. The other two brothers had separated from the third. The first cousin D died. After his death , his share became the property of the brother C, as women cannot inherit in an undivided family. After C's death his brothers, A^ and B, will therefore inherit, and not Ps wife, because she is only a Sapinda relation excluded by co-owners.
Q. 4. — A person divided his property between his legiti- mate and illegitimate sons. One of the (illegitimate) bro- thers died without issue. Will the legitimate or illegitimate members of the family be his heirs ?
A, — ^The relatives of the illegitimate branch will be the heirs. — Nuggur, 1845.
AxjTHORiTiBs.— (1*) Mit. Vyav. f. 56, p. 2. 1. 1 {see Chap. I. Seo. 2, Q. 4)5(2) f. 58, p. 2,1.5 :-
" Among brothers, such as are of the whole blood take the inheritance in the first instance, under the text above cited ; ' to the nearest sapinda the inheritance next belongs ;' since those of the half-blood are remote through the difference of mothers." (Colebrooke, Mit. p. 347; Stokes, H. L. B. 446.)
Bbmabk. — It is not clearly stated whether the surviving relations of the deceased are all his brothers, or some brothers and some nephews, and it is therefore impossible to say whether the Sftstri's answer is correct. The order of inheritance is this — brothers of the whole blood, half-brothers, sons of brothers of the whole blood, sons of brothers of the half-blood, (a) (8ee above Sec. 8, Q. 12, and Introd. pp. HI, 112.) .
(a) So in Bwrdam Deo Roy v. Pv/nehoo Roy, 2. C. W. K. 123.
466 HEIRS IN DITIDED FAMILY. [Bi.i,CH^^l,qJ^
Q. 6.— A M&rw&dt had three wives, of whom the first had two sons, and the second and the third one each. The hosband and two wives died. The widow who survived was the mother of the two sons. One of these sons died before marriage. The question is, who will be his heir, the uterine brother or the half-brothers ?
il.^-The order of heirs laid down in the case of death of a person who has no male issue, and who is a << Yibhakta,'' or a member of a divided family, is as follows : — The widow, daughter, daughter's son, father, mother, uterine brothers, and half-brothers; when one fails, the other succeeds. If the deceased had separated and was unmarried, his immediate heir will be his father, and in his absence, his mother. If he had not separated, his uterine and half-brothers, who would be entitled to equal shares of the deceased's property.
. Khandesh, October 20th, 1849.
AXJTHOBITIES.— (1) Mit. Vyav. f. 56, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4) ; (2») f . 58. p. 1, 1. 11 {see Chap. II. Sec. 9, Q. 1).
Rbmaeks.— Po^W, Mother, — It should be mother. &ther. (a) See Introd. p. 109.
In the case of Oavuri Devamma Qaru t. Rmnandara Oaru, (5) there is an exposition of the law relating to impartible property be- longing, as an undivided estate, to a Hindi! famOy, or to one bianoh of snob a family, jointly as to the members of the branch, bat sepa- rately as to the other branches, with which a community of interesti exists as to other property. The Court say (page 109) : —
" We are of opinion, therefore, that the sound rule to lay down with respect to undivided or impartible ancestral property is that all the members of the family who, in the way we have pointed out, are en- titled to unity of possession and community of interest according to the Law of Partition, are coheirs, irrespectively of their degrees of agnate relationship to each other, and tl;iat, on the death of one of them leaving a widow and no near Sapindas in the male line, the fa- mily heritage, both partible and impartible, passes to the sarvivonor survivor to the exclusion of the widow. But when her hosband wss
(a) See Mttsst. Piium KooMOa/r v. Joy Kishen Don etd,6 Calo. W. E. lOlC.R. (&) 6 M. H. C. R. 98.
■ti,CH.u,8.11,q.6.] BEOTHEES. 457
the last sarvivor, the widow's position, as heir relatively to his other oodivided kinsmen, is similar to her position with respect to his di- vided or self- and separately-acquired property."
2 A brother of the whole blood has precedence in succession over a half-brother in Bengal, (a) OaviMri Devamma Garu v. Bamandora Gam is discussed by the Judicial Committee in Perlasami v. Pev' iatami. (b) Their Lordships thought that the property, by the elder brother's renunciation, became that of the younger brothers as if it had fallen to them in an ordinary partition. See p. 75 of Eeport.
Q. 6. — A SannyAsi is dead. There are his brother, a grandson of his other brother, and a widow of the third. Which of these will be his heir ?
A, — That person will be the heir to whom the property might have been transferred previous to the man^s becoming a Sannyfts!. Bat if the property was not transferred to any one, and if it constitates what the man possessed before he became a Sannyasi, it will be inherited by his brother, and in the absence of a brother by a brother's son ; and when there is no such son, the widow of a brother. The property which may have been acquired during the time the man was Sanny&st, such as his books, wooden sandals, math, &c., will be inherited by his virtuous disciple.
Akmednuggur, September 2ndj 1849.
AuTHORirnts.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 4) ; (2) p. 140, 1. 1 ; (3*) Mit. Vyav. f . 58, p. 2, 1. 6 (see Chap. II. Sec. 11, Q. 4 ; (4*) f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
REMAJuts.— 1, Nephews cannot take by representation in competi- tion with the surviving brothers of a deceased co-sharer, (c) See also Hit. Chap. II. Sec. 4, p. 8.
2. But it should be borne in mind that by the Mit&ksharA law the rules of inheritance come into operation only as to the sole estate or
(a) Sheo Swnchri v. Pertheo Shigh, L. R. 4 1. A. 147.
(b) L. R. 6 I. A. 61.
(c) Rmnpei'shad Tewary v. Slieochum Doss, 10 M. I. A. 504.
58h
458 HEIES IN DIVIDED FAMILY, [be.i,ch.ii^.12,^1
the separate estate of the prvposittts. In a united family there is no room for the succession of ** brothers and their sons, " the joint estate is theirs ah*eady ; it is only a participator who is removed. Even the widow, the first in the series of heirs to a sonless man, succeeds only if he was separate. See Mit. Chap. II. Sec. 1, paras. 2 and 39. Macb less can the daughter or brother succeed to the same estate, (a)
SECTION 12.— HALF-BROTHERS. (6)
Q. 1. — There were two half-brothers of the Rajpnt caste. One of them died, leaving his property in the possession of his widow. She contracted a ^' P4t*' marriage with another man. The question is, whether the widow or the half-brother has right to the property of the deceased ?
A, — The widow of the deceased, having remarried by the rite of " Pafc,** has forfeited her claim to her former hus- band's property. The nephew has right to inherit it.
Broach, June 29th, 1852.
Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 8; (2) f. 58, p. 2, 1. 5 {see Chap. II. Sec. 11, Q. 4).
Remarks. — Regarding the loss of the widow's rights, see also Act XV. 1856, Section 2.
2. According to the Vyav. May. a full sister inherits in preference to a half-brother, (c) Much more therefore in preference to remoter relatives, (d)
(a) Sec above, Chap. I. Sec. 2, Q. 6, Remark ; and Bajhubamnd Doss V. Sadhuchum Doss, I. L. R. 4 Calo. 425.
(h) As to the precedence of half-brothers over full brothers* sons, the Smriti Chandrik&, Chap. XI. Sec. 4, para. 5, follows the Mit&kshaA while the Vyav. May. Chap. IV. Sec. 8, p. 16, reverses the order. Macn. vol. 2, p. 11, says that representation does not extend to collaterals, but the case of which he intends to give the effect goes only so far as to say that half-brothers take after full brothers and j exclude half-brothers' sons.
(c) Sakharam Saddshiv Adhlkari v. Sitabai, I. L. R. 3 Bom. 353.
(d) lb. 368 (note), 369. j
I
M.l,CH.n,s.l3,ti,8.] brother's SON, 459
SECTION 13.— BROTHER'S SON. (a)
Q. 1. — A person died, and there is his brother's son a3 well as a widow of another brother s son. Will the widow be the heir in preference to the nephew ?
il.— No.— TaTina, October 11th, 1847.
AuTHORrriES.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 2); (2») Mit, Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4),
Q. 2. — A man died. His surviving relatives are four nephews and a wife of a nephew. The question is, which of these is the heir ?
A. — The four nephews are heirs. The widow of a nephew cannot be the heir of the deceased. Ahmedabad, Juhj 18th, 1857.
Authorities. — (1) Vyav. May. p. 134, 1. 4 (see Auth. 4) ; (2) p. 140, 1. 1; (3) p. 140, 1. 6; (4*) Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec 2,Q.4).
Remark. — In default of brother&, brothers' sons succeed, toking per eapiia. {b) They succeed directly as nephews, not by representation of their fathers, (c)
Q. 3. — Who will be the heir to a deceased person, a brother's son or a brother's daughter ?
A. — The brother's daughter cannot be the heir. Dharwavy 1845.
Authority.--* Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remark. — Nandapandita and BMambhatta give equal shares to the brother's daughters. See Stokes, H. L. B. 4-45 . See infra, Bk. L Chap. II. Sec. 15, B. II. (2).
(a) See Introduction, p. 116, 117; below Sec. 14 I. B. 1 «, Q- l»and ^imayasindhu III. p. 95, 1. 17, quoted in Bk. T. Chap. 14 I. B. b. 1, Q. 1. Brothers' sons exclude a son's widow, 2 Macn. 75. They are amongst theheirs specially enumerated. The Smriti Chandrildl, Chap. XI. Sec. 4, para. 26, places the son of a half-brother next after a son of a full brother. Brother's sons exclude the widows of the deceased in a united family, Totava et al v. Irapa, R. A. No. 26 of 1S69, decided 4th July 1871. (Bom. H. C. P. J. F. for 1871.)
{h) Brojo KishoreeDosseey. Shreenath Bose, 9C. W. R. 463. See Q, 6, (c) Brcjo Mohun Thakoor v. Gonree PoisliaJ et a?, 15 C. W- R. 7W-
460 HEIES IN DIVIDED FAMILY. [m.i/:h.im18,^8'
Q. 4. — A man died^ leaving neither wife nor childreii. He has left two relatives^ namely^ a sister-in-law and a nephew. Which of these is the heir of the deceased ? The sister-in-law has sold a house of the deceased without the consent of her son. Is this a legal sale ?
A. — ^When a man dies without male issue, his widow be- comes his heir. When there is no widow, his daughter, and in her absence, her son is the rightful heir. In the absence of a daughter's son, the parents, and in their absence^ the uterine brothers, and in their absence, the nephews are the heirs. This is the rule of succession laid down in the S^tra. According to it a sister-in-law cannot be the heir while there is a nephew alive. The sale efifected by the widow without her son's consent cannot be considered legal. — Ahmedahad, January Zlst, 1852.
AuTHOBiTiEs.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 2); (2*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 5. — A man died. His surviving relatives are a nephew and a son of another nephew. Which of these is his heir ?
4. — The nephew is the heir. The son of a nephew cannot be considered the heir while a nephew is alive, Ahmednuggnr, July 8th, 1856.
AuTHOBiTiES.— (1) Vyav. May. p. 1^, 1. 4 {see Auth. 2); (2*) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 6. — If a deceased person has left a sister and some nephews, which of them will be his heir ?
A. — If the deceased and his nephews were undivided in interest, the nephews will be his heirs; but if they were sepa- rated, the sister will be his heir.
Ahmednuggur, December Slst, 1846.
AuTHOKiTY.— ♦Mit. Vyav. f . 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Ebmarrs. — The nephews (brother's sons) are the heirs in every case- They take per stirpes according to the Subodhini, but this is met by B&lambhatta with the argument that, as a brother has not a Tested interest like a son, he cannot transmit it, and therefore the brotbeff
Bi.i,cH.ii,8.18,q.9.] BBOTHEB's SON. 461
sons take per capita. {See 1 Macn. 27.) The discussion brings oat the difference between the snccessive possibilities of ownership, each excluded by the preceding one, in " obstructed" as compared with the successive outgrowths of actual co-ownership in unobstructed **d^ya," (= participation) commonly rendered "inheritance." See above, Introd. pp. 60, 63, 67.
2. Where there is no reunion, all co-sharers participate according to their relationship in the lapsed share of a deceased co-sharer in each of the several parts of the original estate in which his share was settled by agreement so as to constitute a partition, (a)
Q. 7. — A man separated from the rest of the members of his family. Afterwards he died. His sisters claim the right of inheritance. The grandmother and the nephew of the deceased have objected to their claim. The question is, which of these three relatives is the heir of the deceased ?
A. — If the deceased was a separated member of his family, and if he had no son, his nephew is his heir. When there is no nepbew, the mother of the deceased^s father, and in her absence, his sisters are his heirs. Sural, October 11th, 1845.
Authorities. — (1*) Mit. Vyav. f. 56, p. 2, 1. 1 {see Chap. I. Sec. 2» Q. 4) ; (2*) Manu IX. 217 :—
** The mother also being dead, the paternal grandfather and grand- mother take the heritage on failure of brothers and nephews."
Q. 8. — Who will be the heir of a deceased person, his kept woman or his brother's son ?
A. — The nephew is the heir, but the kept woman will be entitled to a maintenance. — Dharwar, 1846.
AuTHOEiTiBs.— (1*) Mit. Vyav. f . 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4); (2*; f. 67, p. 1, 1. 6 {see Chap. II. Sec. 3. Q. 3).
Remakk. — See Vrmdavandae v. Yemti/nabai. {h)
Q. 9. — ^There were two brothers, Uderam and Hftma. The latter had kept a woman, by whom he had a son. After his
(a) Amrit Rav Vinayak v. Abaji Haibat, Bom. H. C. P. J. F. for 1878, p. 293. {b) 12 Bom. H. C. R. 229.
462 HEIRS IN DIVIDED FAMILY. [Bi.i,CH.ii,8.18,qlO.
doath UdorSLm protected the son and got him married. The woman and Uder&m died. Can the illegitimate son of Hftma be the heir of the deceased Udertim ?
A. — He may be considered the heir, if, according to the custom of the Marwfidls, there is no objection to his succes- sion ; but if it is contrary to the custom, he will be entitled to whatever he may have received from his uncle as a mark of his affection, and if the son is a minor, the Sirk^r should make a provision for his protection till he attains to the proper age, and the rest of the property may be taken by Government. — Ahmednugg^ir, March 8thy 1847.
Authority. — Yyav. May. p. 7, 1. 1 : —
** Thus Brihaspati says ; — * Let all rules of each country, caste and family, that have been divided and preserved from ancient times, be still observed in the same way, otherwise the subjects will rise in rebellion.' " (Borradaile, p. 7 ; Stokes, H. L. B. 15. Compare also Manu VIII. 41.)
Q, 10. — A village was granted on hereditary Inam tenure to a younger brother. The grantee subsequently died with- out issue, but there are sons of his brother. Can the Sanad, declaring the grant to be " Vamsaparampara," be construed to extend the benefit of the grant to the nephews of the grantee ?
^. — The grantee was a Brahman. By reason of the grant he became proprietor of the village. After his death, the sur- viving members of his family have a right to his property. A king is prohibited from taking any property of a Brah- man, even though he may have at his death left it without an heir. If the deceased has left no other heir than his nephews, they will be his heirs entitled to the village. 8adr Addlat, September 8th, 1837.
AuTHORrriES.— (1*) Amarako^a, Bk. II. Chap. 7, 1 :— Amarasimha here enumerates varhia amongst the words for lineage. See also Wilson's Sanskrit Dictionary.
(2*) Vlramitrodaya, f. 204, p. 1, 1. 1 .—"A son and a daughter both continue the race of the father."
BK.i,CH.n,8.14iAl,(i.l.] QOTEAJA — FULL SISTEB. 463
Remarks.— 1. By the term " Vam^-paramparft" are understood "male" and "female" descendants in the direct line, bat never bro- thers or brothers' sons. Consequently the nephews, in the case stated, have no title to the property.
See above. Section 6 a, Q. 8, for the case of a widow succeeding to separate property, such as an in&m would generally be. See also Bk. n. Introd.
2. A grant to a man and his heirs does not cons tit ate an estate inalienable, (a)
♦SECTION 14.— I. GOTRAJA SAPINDAS. A. — Heirs mentioned in the MitaksharI and VyavahIra Mayukha. 1. il.— FULL SISTER, (b) Q. 1. — A man died. He possessed certain property ac- quired by himself and his ancestors. The question is, whe- ther the sister or the sister-in-law of the deceased is the heir? A. — The sister, and not the sister-in-law, is the heir/
Sural, August 15th, 1858. Authorities. — ( 1) Vyav. May. p. 140, 1. 1 : —
" In default of her (the grandmother) comes the sister ; under this text of Manu : To the nearest Sapinda (male or female) after him in
(a) Krishna Bdo GanesJiY, Rang Rao et al, 4 Bom. H. C. R. 1 A. C. J.; Bahirji Tammji v. Oodatdng et al, K. A. No. 47 of 1871 (Bom, H. C. P. J. F. 1872, No. 33). As to grants, see Bk. II. Introd. 5 A 2.
{b) The Smriti Chandrika, Chap. XII. para. 35, admits the sister as successor to a reunited parcener on failure of children, wife, and father, though it excludes her as heir to a divided brother. Chap. XI. Sec. 5. See Icharam v. Purmanund, 2 Borr. R. 615. A sister succeeds to a brother, after the latter's widow has entered into a Natra marriage with another, under Act XY. of 1856, in the absence of custom excluding her from succeeding to Bhdgad&ri Yatan, Bhaiji Girdhur et aZ V. Bai Khusal, S. A. No. 334 of 1872, Bom. H. 0. P. J. F. for 1873, No. 63. See the next Section. Biru valad Sadu v. Khandu valad Mari, I. L. R. 4 Bom. 214.
Under the earlier Roman law a whole group of agnates standing equally near to the deceased succeeded together without distinction
* For references to the Introductory Remarks to this Section in the earlier editions, see now Introd. to Bk. I. p. 114 ss.
464 HEIBS IN DIVIDED FAMILT.[BKL,CH.n^.l^il,q.l.
the third degree, the inheritanoe belongs." (a) (Borradaile, p. 106; Stokee, H. L. B. 89.)
(2) Mit. Vyav.f.69,p. 1, 1. 16; (3) f.45,p. 1,1. 5; (4) f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Bemabks. — 1. HindA sisters inherit equally from their deceased brother ; the unendowed has not a preference over the one provided for, as in the case of daughters inheriting from a mother. (6)
2. The sister (by adoption) of an adopted son succeeds before other kinsmen (deceased's uncle's widow), (c) A sister succeeds before remote kinsmen (males), (d)
A full sister is preferred to a paternal first coosin. (e)
In the case of Sakharam v. Sitahai, (/ ) one of two separated half- brothers having died was succeeded by his mother. On her death a contest as to the inheritanoe arose between her daughter and her step-son, which was disposed of in favour of the former. The jadg- ment places her precedence (g) on the succession to reunited brethren which is referred to in Vyav. May. Chap. IV. Sec. IX. p. 26, and Vinayak Anandrav v. Lakshmihai is relied on as having not only on the authority of the Maydkha but also on Nanda Pandita's and Nilakan-
of sex. The females being always dependent, no inconvenience arose from their joint ownership. When the Lex Voconia afterwards prohibited legacies to females they began to be thought unfit mem- bers of the heritable group of agnates, but an exception was main- tained in favour of full sisters. It would seem that an analogons exception in favour of full sisters, in virtue of their consanguinity, may, at one stage of progress and in some provinces, have prevailed under the Hindu law. Str. H. L. ; see Q. 4, Bem.
(a) See page 130 for B&lambhatta's doctrine. The poverty qnali- fication does not give a preferential claim amongst sisters as it does amongst daughters. See Bhagathibai v. Baya, I. L. B. 5 Bom- at p. 268.
{b) Bhagirthibai v. Ba/ya, I. L. R. 6 Bom. 264.
(c) Mahantapa v. NUgangowa, B. H. 0. P. J. F. for 1870, p. 890.
(d) Dhondu v. Ganga, I. L. R. 3 Bom. 369.
■(e) Lakshrmbai v. Dada Nanaji, I. L. R. 4 Bom. 210.
(/) S. A. 34 of 1875, in which judgment was delivered on Srd March 1879 (P. J. 336 of 1879 ; S. 0. I. L. E. 3 Bom. 853.
(g) Vyav. May. Chap. IV. Sec 8, p. 16, 20, (supported by a passage of Brihaspati, cited Col. Dig. Bk. 5, T. 407).
*i.t,CH.it,t.Uul,(i.2.] GOTBAJA — PUtti SlSME. 465
tha's iuterpretations of the Mit&ksliar& (making brethren include Bisters) settled the law for the Bombay Presidency generally. Any divergence from the rule must, it is said, be supported by "an ancient
and invariable usage to the contrary alleged and proved by him
who uses it.** The case was dealt with entirely on a consideration of who was heir to the predeceased son, not of who was heir to his mother. The mother, Mathurabai, it is laid down, " on succeeding on the death of her son Nana to his moiety of the immoveable property, took only such a limited estate in it as a Hindii widow takes in the immoveable property of her husband dying without leaving male issue."
There can be no doubt as to the sister's succession before the half- brother according to the Maytlkha and to Nanda Pandita*8 and B&lam- bhatta's construction of the Mit&kshard. But the same authorities give the deceased son's estate to his mother, so that for the further succession we should, according to them, seek her heirs^ not the son's heirs, (a) The sister of the deceased Nana was entitled to the pro* perty, according to the native authorities, in succession to her mother, not to her brother. With the cases relied on of Narsappa v. Sakharam and Bachiraja v. Venkatapadda should be compared those cited in Vijiyarangam's case.
3. The property inherited by a sister from her brother is Strtdhana, passing on her death, iu the first place, to her daughters, {b)
Q. 2.— A man died. He had no wife or children, and
(a) See above, p. 328. The same view is taken by the Vivftda Chint., by Jagann4tha, the author of Coleb* Dig., and in fact by all the authorities except the D&ya Bh&ga and the works which have since adopted its forced construction of a single text applicable only to a widow succeeding to her husband^s property. According to both the Mit. and the Maytikha, property which a woman acquires by inheritance is strtdhana (supra, pp. 149, 270, 272, 298, 327), heritable by her heirs. The 'limited estate' which a widow takes from her deceased husband may be identical in kind with that which a mother inherits from her son, but the character of the estate must in each case now be determined by the decisions rather than by the doctrines of the principal native authorities recognized in Bombay. See above , pp. 150. 334.
(b) Bhdskar Trimbak v. Mahade^, 6 Bom. H. C. R. 1 0. C. J ; Vind- yakAnandrdo et al v. Lakshmibai et al, 1 Bom. H. C. R. 117, and 9 M. I. A. 516.
466 HEIBS IN DIVIDED FAMILY. [BK.i,CH.ii,8.Uul,^f.
there is no member of his family except a sister. She has two daughters * one of them is a widow, and the other is a married woman and has a male child. The qnestion is, whether the son should be considered the heir of his mother's maternal uncle, in preference to the claims of his mother and grandmother ?
A. — In the absence of a near relation, a distant relation becomes heir of a deceased person. The sister is a gotraja relation and must be preferred to all others mentioned in the question. — Ahmedabad, May 28ih, 1847,
AuTHOBmES.— (1) Vyav. May. p. 140, 1. 1 (see Chap. 11. Sec. 14 1. A. 1, Q. 1) ; (2) p. 134. 1. 4 (see Aath. 3)} (3*) Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Q. 3. — A man had two wives. The elder of them had a daughter. The daughter has three sons. The second, or the younger wife, had a son and two daughters. One of the last mentioned daughters died when her mother was alive. She has left a son. The second, or the younger wife, and her son died. Her surviving daughter has applied for a cer- tificate of heirship of the deceased mother and brother. The deceased daughter's son^ and the sons of the daughter of the elder wife, have brought forward objections to their claim- It must be observed that the uterine brother and sister of the applicant died when their mother was alive, and that the elder wife and her daughter died when the younger wife was alive. The question is, which of the survivors is the heir of the deceased younger wife ?
A. — When a man dies, his widow, daughter, and other near relations become his heirs; and in the absence of these, the uterine sister ; and failing her and her son, the daughter is the heir of the deceased younger wife. In the absence of the daughter, the daughter's son will inherit the
n.i,cH.n,8.14ul,q.4.1 GOTBAJA — FULL SISTER.
467
property of his matenial grandmother. The applicant (a) is therefore the heir of the two deceased persons, Surat, September 28th, 1857.
Authorities. — (1) Vyav. May. p. 140, L 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1) ; (2) p. 138, 1. 4 ; (3) p. 137. L 5 ; (4) p. 137, L 8 ; (6) Mit. Vjav. f. 48. p. 1, 1. 14 ;—
" The daughters share the residue of their mother's property after payment of her debts." (Colebrooke, Mit. p. 266 ; Stokes, H.L.B. 383.)
Q. 4.— A man died. He has left neither a wife nor chil- dren. His sister and her son claim to be his heirs. The question is which of them should be considered the heir f
A. — If there are none of the man's following rela- tions, viz : —
A son, A wife, A daughter,
A daughter's son. The mother. The father.
A uterine brother, A half-brother, and A brother's son.
a goti*aja relation becomes heir; and among the gotraja
(a) The following genealogical table will illustrate the answer :-^
The elder wife.
Died.
Daughter.
Died.
A man.
Son.
ObJMtor.
i Died.
Son.
Died.
I
The younger wife.
I Died.
I
Daughter.
Daughter.
Died
the
of the
during Applioanl.
lifetime
mother.
|
Son. |
Son. |
Son. |
Objector.
468 HEIRS IN DIVIDED FAMILY, [BK.i.cH.n,t.I4iAl,q.«.
relations, the father^s mother is to be preferred to all othera. The next gotraja and heir is the sister, and then the sister's son. — Ahmed abad, April 20 < A, 1847.
Authorities.— (I) Vyav. May. p. 134, 1. 4 (see Anth. 8); (2) p. 140, 1. 1 (see Chap. II. Sec. 14 I. A. 1, Q. 1) ; (3*) Mit. Vyav. f. 55. p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Rema^brs. — In the case of Sakharam v. Siiaram, (a) it was held that a full-sister succeeds before a half-brother, both aocording to the Vyav. MayAkha (Chap. IV. Sec. VIII. paras. 16—20) and ac- cording to the Mit&ksharft (Chap. II. Sec. IV. paras. 1, 6, and notes) construed according to Nanda Papdita and B&lambhatta so as to make "brothers" include sisters. (6) It is strange that the Mit&ksharft, if it intended " brothers " to include •* sisters," did not say so; but amongst reunited brethren at any rate it is clear from Mit. Chap. II. Sec. IX. paras. 12, 13, that VijS&ne^vara recognised full sisters as having a right with full brothers preferable to that of half-brothers as heirs to a deceased member.
Regarding the sister's son, see Introductory Note to Chap. II. Sec. 15, CI. 4.
Q. 5.— Who is entitled to inherit from a deceased person, his sister or the sister's son ?
A. — If there is a sister, she succeeds first; a sister's son does so after hev.— Ahmednuggur, November 1st, 1847.
Authorities.— (1) Vyav. May. p. 140, 1. 1 (see Chap. II. Sec. U I. A. 1. Q. 1); (2) p. 134, 1. 4 (see Auth. 6); (3) p. I4l, 1. 7; (4) p. 181. 1. 5 ; (5) p. 142, I. 8 ; (6*) Mit. Vyav. f. 65. p. 2, 1. 1 (see Chap. I. Sec. 2, Q.4).
Remark.— 5ee Introduction, pp. 115, 134.
Q. 6. — A deceased man has a sister, who has two sons. Who will be the heir ?
A, — If a nearer relation cannot be found, a sister will be the heir, and in the absence of a sister her sons will be the heirs. — Ahmednuggur, January 6th, 1846.
Authority.— Mit. Vyav. f. 65, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
(a) I. L. R. 3 Bom. 353.
(b) See Thakoorain Sahiha v. Mohun Lall, 11 M. 1. A. at p. 402.
bi.i,ch.ii,».Uia2,^1] GOTRAJA — HALF-SISTER. 469
Q. 7. — A woman's husband died, and she married another man. On his death, she lived with her son by her first husband, and they both acquired property. The son after- wards died without issue. His sister lives with her husband in his house. Is the sister or the mother the heir of the deceased ?
A, — The mother does not belong to the family of her first husband. The sister alone is the heir of the deceased. Sholapoor, August 27th, 1846. AuTHORrrr.— *Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remark. — The mother would lose her right to inherit from her first husband but not, according to the cases, from the son (a) under Act XV. 1856, Sec. 2. {See Sec. 9, Q. 9).
I. A. 2.— HALF-SISTER. Q. 1. — Is a step-mother or a half-sister the heir of a de- ceased man ?
A. — The right of a full mother is recognized by the Sds- tra, but that of a step-mother is nowhere defined. The right of a brother is likewise recognized by the Sdstra, and it is stated that on failure of a brother, a half-brother has the right of inheritance. The right of a sister is also ad- mitted by the Sdstra ; and by inference, a half-sister may be considered an heir. A half-sister is born in the gotra, and she will therefore have a better right than the step- mother to inherit the deceased's property.
Sadr Addlat, June 10th, 1844.
AuTHORrriES.— (1) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1); (2) p. 142, 1. 6 ; (3) Nirnayasindhu III. f. 98, 1. 26.
Remarks.— 1. The S&stri appears to have followed the May^kha, which places the sister immediately after the paternal grandmother ; at the same time he must have understood the term * bhagint,* 'sister/ to include the sister both of the full and of the half-blood. This interpretation is from a philological point of view admissible-
(a) See Okhorah Soot T. Bheden Barianee, 10 C W. R. 35 C. R- > H C. W. R. 82 C. R.
470 HEIRS IN DIVIDED FAMILY. [BK.i,cH.ii,8.UiA2.q.l.
According to the Maytikha's interpretation of the term Gotraja as bom in the same family as the deceased^ (a) the step-mother could not inho* rit before the half-sister; she being necessarily descended from a differ- ent stock, but that Ntlakantha does not confine Gotraja to this sense is plain from his calling the grandmother the first of the gotrajas in the order of succession. Custom, however, seems to have given to natural birth in the family of the propositus precedence over the se- cond bii-th by marriage into the same family, though the latter also is a source of heritable right. See below, I. A, 4, Q. 9. In Kesserbd V. Valab Rat>ji, {h) even a half-sister is preferred to a step-mother and a paternal uncle's widow.
The marginal note in Sreenarain Rai v. Bhya Jha, (c) to the eSect that in Mithila a half-sister ranks as a sister, goes much beyond the Yyavasth& in the text. All that the S&stri says is that if custom assigns the half-sister this rank it will not be inad- missible according to the method of interpretation adopted by the Mithila law writers. In this he refers inter alia to V&chaspati in the Viv&da Chint&mani (Translation, p. 240), who construes the text of Brihaspati (Coleb. Dig. Bk. V. T. 85) so as to make m&tarah include step-mothers. See below, Bem. 2. As between step-mother and half- sister this mode of interpretation would give precedence to the former. The Vyav. MayAkha, Ch. IV. Sec. VIII. p. 16, 20, refuses recognition to half-blood except in virtue of descent from a common ancestor ; and except in the case of a sister makes no provision for representation of a collateral line by a daughter. See supra, p. 130,131. The passages cited below. Sec. 15 B. II. (2), Q. 1, are those at Stokes, H. L. B. 86, pi. 10, and p. 89, pi. 19, which relate only to the succession of a daughter to her father and of a sister to her brother. Ntlakantha assigns no place to the brother's daughter or to the grandfather's daughter (paternal aunt). Her son is a Bandhu, infra. Sec. 15 B. I. (1), The S&stri at Sec. 14 1. B. &. 2, Q. 3 infra, refers to the passages, Stokes, H. L. B. p 85, pi. 7, to Brihaspati, quoted ilnd, p. 89 pi. 19, and ibid^ p. 93 pi. 5. See supra, p. 342, Q. 4. Those passages do not support a doctrine of female representation. If half-sisters are brought in by analogy that can only be by a mode of interpretation which concurrently makes step -mothers, mothers, as in Vyav. MayAkha Chap. IV. Sec. 4, pi. 19. Still however the half-sister is a gotraja- sapinda according to Vyav. May. 1, Ch. IV. Sec. VIII. p. 19, as said by the Sastri.
(a) See Introduction, p. 131 supra.
{b) I. L. R. 4 Bom. 188. Herein may be found a support for the doctrine propounded by Sir M. Westropp, C. J., in Tuljarams case, Bupra, p. 336.
(c) 2 Calc. S. D. A. R. 28.
ii.i,CH.ii,8l4iA2,q.l.] GOTBAJA — HALF-SISTER* 471
2. Regarding the right of the step-mother to inherit (a) as recog- nized in the case jast discussed. Sir T. Strange, H. L. 144, states that "step- mothers, where they exist, are excluded; " against this opinion it may be remarked that B&lambha^t& asserts that they inherit imme- diately after mothers, as in his opinion the term m&i& stands for janani, '* genitrix,** and 8&patnam&t& " noverca." Most likely his opinion is based on a verse attributed to Manu, {b) which declares that all the father's wives are mothers, as well as on Manu IX. 183 : — ** If among all the wives of the same husband, one bring forth a male child, Manu has declared them all, by means of that sout to be mothers of male issue;" but it is inadmissible, as the arguments brought forward by Vijn&nesvara in the discussion on the claims of the mother do not apply to the step-mother, and this author conse* quently cannot have included step-mother by the term 'mother.* (c) Nevertheless it is not probable that either Vijn&nesvara or Nllakantha intended to exclude step-mothers entirely from inheriting. The high reverence which, according to Manu, is to be paid to step-mothers, as well as the fact that step-sons inherit from their step-mothers, may furnish an d priori argument, that Hindtl lawyers who admit women, though not authorised by special texts, to inherit, would not object to the step-mother's claims, and in fact if the interpretations of the terms "Sapinda" and " Gotraja" given above in the Introduction to Bk. I. pp. 128, 131, hold good, then, according to the doctrines of both the Mit&kshar^ and the May^kha, step-mothers must be allowed to inherit. The Maytikha adopts the Mit&kshar& doctrine of Sapinda relationship. See p. 120 above.
(a) The grandmother takes before the step-mother, Macn. Cons. H. L. 64. In Bengal the latter seems excluded. See 1 Calc. S. D.
A. R. 37, {Bishenpirea Munee v. Ranee Soogunda); 2 Macn. Prin. and Prec. 62 ; Lola Joti Lall v. Musst, Durani Kower, Beng. L. R. 67, F.
B. R., rules similarly under the Mit&kshar&. In Madras a male go- traja sapinda, grandson of the great-grandfather of the propositus, inherits before either his half-sister or his step-mother, Kumaravelu v. Virana Ooundan, T. L. R. 6 Mad. 29. Reference is made to Kutti Ammal v. Rada Kristna Ayyana^ 8 M. H. C. R. 88, to show that even a full-sister is postponed to a gotraja sapinda, which rank she has not, according to the Smriti Chandrikft, Chap. XI. Sec. 5. See above, p. 129 note (a), p. 130 note (c). In Madras, as in Bengal, a step-mother is postponed to a paternal grandmother, Mntiamdl v. Vengalakehmi Ammdl, I. L. R. 5 Mad. 32. See above, p. 113.
(b) Nirnayasindhu, III. PArv&rdha, f. 6, p. 1, 1. 12.
(c) See Mit. Chap. II. Sees. 3, 32, 51 ; and Colebrooke's note to 1 Gale. S. D. A. R. 37 {Bishenpirea Munee v. Ranee Soogunda),
472 HEIRS IN DIVIDEt) FAMlLt. [bk.I,ch.ii,8.Uia2,(i1.
According to the MitAksharft a step-mother wonld be by her marriage a **Grotraja" relation of her step-son, and for the same reason also a "Sa- pinda" relation. Consequently she would take inheritance amongst the Gotraja-Sapinda relations. According to the opinion of the learned S&stri who assisted in the original compilation of this Digest* she ought to be placed, on account of her near relationship to the deceased, immediately after the paternal grandmother, up to whom only the succession is settled by special tests.
According to the Maytikha the step-mother would not be Gotraja, in the sense of bom in the same family as the 8tep>8on« but certainly a Sapinda relation. The VyaTahAra May{ikhai Chap. IV. Sec. 4, p. li*. assigns to step-mothers and step- grandmothers an equal share ^ith mothers and grandmothers on partition amongst their husbandb* descendants. The passage of Vy&sa, on which this rests, and a corresponding text of Bfihaspati, are discussed in Colebrooke's Digest, Bk. V. T. 84, 85, Comm. The limitations proposed by Jtrntitavdhana and Baghunandana are there rejected, and the declaration of B^'ihas- pati that janani and mdtarah are entitled to equal shares is taken as showing that mdtarah means step-mothers. The DHya Krama Sangraha also (Chap. VII. pi. 7, 8) refers the rights of the step-mother, admitted by the Mithila Schooli to a similar interpretation, it Nilakantha can be supposed, in accepting its consequence, to have adopted this construction of the texts, his doctrine would not differ materially from that of the Mit4kshar&, as above stated, (a) The alternative seems to be that in omitting step-mothers from the Gotra- jas, whose claims he discusses he intends to exclude them. Accord- ing to this view, they would rank only as Sapindas, and consequently inherit like other Sapindas, sprung from a different family after the Bandhiis {see Section 15). The step-mother's right of maintenance, it was said, is not that of a parent such as can be dealt with by an order under Section 10 of Act XX. of 1864. (b)
(a) In answer to Q. No. 1832 MSS, the 6&stri at Ahmedabad said that step- sons were bound to support their step-mother in virtue of Manu's text, commanding children to maintain aged parents. See also next section, Q. 2. A step- son succeeds to the Stridhana of hv stepmother, Teencowree Chatterjee v. Dinanath Banerjee et al, 3 Calc. W. R. 49. A step-mother's heritable right is recognized in the answer to Q. 3 in Chap. IV. B, Sec. 6 II. b. The first and last of these cases being from Ahmedabad seem to show how the law is understood in ! Gujar&th.
(6) Lakshmibai v. Vishvanalh Narayan, S. A. No. 352 of 1875 (Bom j H. C. P. J. F. for 1876, p. 23).
I
BLi,CH.n^.l4i.A.S,q.2.] PATERNAL UNCLE. 473
In the VyaY. May. Chap. IV. Sec. 4, p. 19, it is said that the step-mother is entitled to a share on partition. This is the rule of the Benares School, though the Vlramitrodaya contends (Transl. p. 79) that mother, being used as strictly correlative to "sons," the sons dividing, the step-mother cannot, under the text of Yajnavalkya, take a ' like' share, but is entitled only to a maintenance, and the ^^stris, at 2Macn. 63, say that * mat&' (=mother) in the Mitaksharfi, &c. includes step-mother, whose right to a share the Yiramitrodaya (Tr. p. 79) admits to be recognized though erroneously by the Mit. Chap. I. Sec. 7, para. 1, on a partition by sons after their father's death. But the position and the right of step-mothers to inherit at all are questioned by Macn. 2 H. L. 64, note.
I. -4. 3.— THE PATEENAL UNCLE.
Q. 1. — A man died. His uncle is absent in a distant Native State. The aunt has applied for a certificate of heir- ship. Should it be granted to her ? .
A, — The aunt has no right to be the heir of the deceased, because her htisband is alive. — Poona, June 80th, 1855.
Authorities.— (1) Vyav. May. f. 134, 1. 4 {see Authority 3); (2) p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1); (3*) Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (4*) f. 58, p. 2, 1. 13 :—
"On failure of the paternal grandmother, the (Got raja) kinsmen sprung from the same family with the deceased, and (Sapinda) con- nected by funeral oblations, namely, thepaternal grandfather and the rest, inherit the estate. For kinsmen sprung from a different family, but connected by funeral oblations, are indicated by the term cognate (Bandhtl). Here, on failure of the father's descendants, the heirs are successively the paternal grandmother, the paternal grandfather, the uncles, and their sons. On failure of the paternal grandfather's line, the paternal great-grandmother, the paternal great-grandfather, his sons and their issue inherit. In this manner must be understood the succession of kindred belonging to the same general family and con- nected by funeral oblations." (a) (Colebrooke, Mit. p. 350 ; Stokes, H, L. B. 446-7).
Q, 2. — The paternal uncle of a deceased person claims his
(a) According to the Sanscrit text, the words "to the seventh degree" ought to be added. As to the translation, see Lulloohhoy ▼. Cassibai, L. R. 7 I. A. at p. 235; above, p. 2 {g). 60h
474 HEIRS IN DIVIDED FAMILY. [BK.i,CH.ii,8.ULA.4,qA
property. Tho deceased's wife wishes to marry another husband, and has consequently no objection to the nneWs application. Tho deceased's father has left a "Pat'' wife who stands in the relation of a step-mother to the deceased. Who will be the heir ?
A, — So much of the property of the deceased as will suffice for the maintenance of the mother should be given to her, and the rest to the applicant.
Dharwar, August 30th, 1846.
Authority.— ♦Mit. Vyav. f. 58, p. 2, 1. 13 (see Chap. II. Sec. 14 I. A. 2, Q. 1).
Eemauks. — 1. Regarding the legalization of Pdt marriages, m Chap. II. Sec. 6 B.
2. Regarding tho right of step-mothers to inherit, «eeCliap.II. Sec. 14 1. A. 2, Q. 1 ; above, p. 471.
I. A. 4.— FATHER'S BROTHER'S SON.
Q. 1. — Will a Brahman's illegitimate son, or his consin who has declared himself separate, be his heir ?
A, — The cousia is tho legal heir. The illegitimate son will be entitled to whatever he may have received from his father, as a mark of his affection, or as a reward for service. Ahmednuggur, Fehruanj 27th, 1847.
Authorities.— (1) Mit. Yyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec 2, Q. 4) ; (2) f. 55, p. 1, 1. 11 {see Chap. II. Sec. 3, Q. 1) ; (3*) f. 53. p. 2, 1. 13 [see Chap. II. Sec. 14 I. A. 3, Q. 1) ; (4) Vyav. May. p. 98, 1. 6; (5) p. 236, 1. 6 ; (6) Manu IX. 155. (a)
Q. 2. — Who will bo tho heir of a deceased Sddia? his father's brother^s son or his sister's son ?
A. — The right of tho sister's son will be superior to that of the cousin. — Tanna, April 27thf 1850.
Authorities.— (1) Yyav. May. p. 134, 1. 4 (see Anth. 4) ; (2) p. 140, 1. 1 ; (3») Mit. Vyav. f . 53, p. 2, 1. 13 [see Chap. II. Sec. 14 I. A. 8. Q. 1) ; (4*) f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
(a) As to the grant to the illegitimate son, see above, Introd. p. 263.
w.i,cH.ii,8.14uA..4,q.5.] father's BROTHER'S SON. 476
Remark. — The father's brother's son inherits, since he is a Gotraja Sapimla, whilst the sister's son is only a Sapii.cla. The Sastri has taken " brothers and their sons," in Vyav. May. Chap. IV. Sec. 8, pi. I, as including " sisters and their sons." See Balambhatta cited in Introduction, p. 130.
Q. 3. — TTiere were four cousins who lived separate from each other. One of them died, leaving a widow, and another without issue or widow. The question is, who will be the heir of the latter ? whether the two cousins, or they and the widow ? If the widow is not to be counted an heir^ give reasons for her exclusion.
4. — The two cousins must be considered the heirs of the deceased. The widow must be excluded, because she has no son. Had her husband been alive at the time of the death of the cousin, he would have been counted an heir, and he having become an heir, in this way would have been able to transmit his right to his widow. Dharivar, April 10th, 1856.
AuTnournES.— (1) Vyav. May. p. ISt, I. 4 (see Auth. 4) ; (2) p. 130, 1. 5; (3*) Mit. Vyav. f. 5S. p. 2, 1. 13 [see Chap. 11. Sec. 14 I. A. 3, Q. 1); (4*) f. 55, p. 2, 1. I (see Chap. I. Sec. 2, Q. 4).
Remark. — Regarding the reason of tho widow's exclusion, see In- troduction, p. 132.
Q. 4. — A man died. There are sons of his maternal and paternal uncles. Which of these is the heir of the deceased ?
A. — So long as there is a son of the paternal uncle, the son of the maternal uncle cannot be his heir. The son of his paternal uncle is his heir. — Broach, August 2lsf, 1848.
Authorities. — (1) Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec, 2, Q. 4) ; (2*) f. 58, p. 2, 1. 13 {see Chap. II. Sec. 14 I. A. 3, Q. 1).
Q. 5. — A deceased person has left a cousin, some daughters, their sons, and a son of a cousin twice removed. The
476 HEIRS IN DIVIDED FiMILY. [be. i,ch.ii,8.14i. 1.4.^7-
daughters and their sons state that they have no ohjec- tion to the cousin realizing, the debt due to the deceased. Which of these relations will be the legal heir of the deceased?
A, — If the daughters and their sons resign their claims to the property, the cousin and the son of another cousin twice removed will be the heirs. — Sholapoor, January 2otfi, 1856.
AuTnoRiTiES. — (1) Vyav. May. p. 134, 1. 4 {see Auth. 4); (2) p. 138, 1. 4 ; (3*) Mit. Vyav. f. 58, p. 2, 1. 13 (see Chap. II. Sec. 14 I. A. 2, Q. 1) J (4*) f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
lUiHARK. — According to Authority 3, the cousin alone will be th« heir, in case the daughter and her sons refuse the inheritance.
Q. 6. — ^A man, who had already separated from his kins- man, died. There are two cousins who have separated from the deceased, the son of a separated cousin and the daughter of a sister. The question is, which of these is the heir ?
A. — The order of heirs laid down in the Sastra does not mention the daughter of a sister. The nearest kinsmen therefore are the two cousins, and they are the heirs of the deceased. — Swat, November 24thf 1855.
Authorities.— (1*) Mit. Yyav. f 55, p. 2, 1. 1 [see Chap. I. Sec. 2. Q. 4) ; (2*) f. 58, p. 2, 1. 13 [see Chap. II. Sec. 14 I. A. 3, Q. 1) ; (3) Manu IX. 187 {see Auth. 4) ; (4*) Vyav. May. p. 140, 1. 1 {see Chap. n. Sec. 14 I. A. 1, Q. 1).
Q. 7. — A Gujar died. There are his cousins and cousin's sons. Which of these are his heirs ?
A. — The rule for finding the proper heir is to take the one that is the nearest among the Gotraja and Sapinda relatives. According to this rule, the cousins appear to be the nearest in degree (and heirs).
Khandesh, October 18lh^ 1855.
AuTuoRiTT.— ♦ Mit. Vyav. f. 68, p. 2, 1. 13 {see Chap. II. Sec. U 1. A. 3, Q. 1).
M.T,CH.u,8.14i.A.4,q.90 father's BEOTHEr's SON. 477
Q, 8. — A man of the Brahman caste died. The surviving relatives are, a daughter of a daughter, a cousin who has separated, and some second cousins. They have all applied for certificates of heirship, to enable them to succeed to the Inam property of the deceased. The question is, which of thein should be recognized as heir ?
A» — If the deceased has left no wife or son, the cousin who separated will become his heir. The second cousins and the grand-daughter are not the heirs. Tanna, December 18//i, 1851,
Authorities.— (1) Mit. Vyav. f . 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2*) f. 58, p. 2, 1. 13 {see Chap. II. Sec. U I. A 3, Q. 1). Eehark. — A second cousin excludes a third, (a)
Q. 9. — A Desai died. The right of inheritance is claimed by the following persons : —
(1) A sister's son whom the deceased has by his will constituted his sole heir,
(2) Two widowed sisters-in-law of the deceased. They Lave applied to have their right to heirship recognized, on the ground that the deceased was the uterine brother of their husbands, and that the deceased was not married.
(3) Four cousins and three of his father's cousins. They apply for a certificate of heirship in regard to the Desai Watan, &c.
The question is, which of these is the heir of the deceased ?
A. 1. — A man may give away his moveable and immoveable property when it was acquired by his own industry, and when he is not married. When a man possesses immoveable property acquired by his ancestors, he cannot make a gift of it. The son of the deceased Desui's sister cannot therefore be heir to the whole of his property under the will made iu his favour.
(c) Mahabeer Persad et al v. Ramsurun, 3 Agra S. D. A. R. 6 A. C.
478 HEIRS IN DIVIDED FAMILY, [BK.i,CH.ii,s.l4i.A,4,q.9.
2.— The two sisters-in-law are " Sagotra'^ (Gotraja) and ^^ Sapinda'' relatives of the deceased. Their husbands, when they were alive, took their shares of the family pro- perty and separated. The sisters-in-law, however, cannot be Baid to be " Sapindjt'' relations in the fullest sense of the word, and consequently they are not heirs.
3. — Of the four cousins and three sons of the father's paternal uncles the three grand-uncles' sons are " Sapinda'' and ^' Gotraja'^ relations, but they are very distantly related to the deceased. The cousins are " Sapiiida*' and " GotrajV and very nearly related to the deceased. The cousins are therefore the legal heirs. — Ahmedahad, September 2Sih, 1848,
Authorities. — (I*) Vyav. May. p. 133, 1.2: —
** Nanida states the duties of separated co-heirs : — When there are many persons, sprung from one man, who have their (religious) du- ties (dharma) apart and transactions (kriya) apart, and are separate in the materials of work (karmaguna), if they be not accordant in affairs, should they give or sell their own shares, they do all that as ihcy ploaae, for they are masters of their own wealth." (Borra- daile, p. 98 ; Stokes, H. L. B. 82.)
(2*) Mit. Vyav. f. 46, p. 2, 1. 13 ff:—
** The following passage, * Separated kinsmen, as those who are unseparated, are equal in respect of immoveables, for one has not power over (the whole) (a) to make a gift, sale or mortgage,' mast be thus interpreted : 'among unseparated kinsmen the consent of all is indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common ; but among separated kindred the consent of all tends to the facility of the transactiou, by obviating any future doubt whether they be separate or united : it is not required, on account of any want of sufficient power in the single owner, and the transaction is consequently valid even without the consent of separated kinsmen.' " (Colebrooke, Mit. p. 257; Stokes, H. L. B. 376).
Kemarks.— 1. According to the two passages quoted, the deceased would have been entitled to give away his immoveable property dar- ing his life-time. It would seem therefore that there is no reason to alter the dispositions made by him. See also IStr.H. L. 26, Note (a), Bk. II. Ch. I. Sec. 2, Q. 8. (h)
(a) Lit. " over them" i.e. " the immoveables."
(b) Mutiaijan Chetti v. Slvdgiri Zaminddr, I. L. R. 3 Mad. at p. 378.
iij,cH.ii,8.14i.A.5,q.l.] PATER. GRANDF.'s BROTHEB's SON. 479
2. Regarding tlie l§&stri's decision, that the sister-in-law is not "Sapinda in the fullest sense of the word," see Introduction, p. 130.
Q. 10. — There were two brothers who had no male issue. The elder of them adopted a son. The younger died, and his widow, having permission from her husband, adopted a son. She gave one-half of the property of her husband to her adopted son, and left the other half for charitable purposes. As her adopted son was young, she appointed an Agent to take care of the property. Subsequently she and her adopted son died. The adopted son of the elder brother has filed a suit for the recovery of the whole property. The Agent who represents the family from which the adopted son was selected, has raised objections. The question is, who should be considered entitled to the property ?
A. — The portion set aside by the woman for charitable purposes could not have been claimed even by the deceased adopted son. It should therefore be applied to the intended purposes by the Agent, under the superintendence of the adopt-ed son of the elder brother. Tho portion allotted to the deceased adopted son of the widow should be given to tho adopted son of the elder brother. Voona, January 23r(i, 1857.
Authorities.— (1*) Mit. Yyav. f. 58, p. 2, 1. 13 (see Chap. II. Sec. U I. A. 3, Q. 1) ; (2) Vyav. May. p. 127, 1. 6 ; (3) p. 198, 1. 2 :—
Kdtyayana : — ** What a man has promised in health or sickness for a religious purpose, must be given, and if he die without giving it, his son shall doubtless be compelled to deliver it." (Borradaile, p. 169; Stokes, H. L. B. 136.)
Remark.— iS'ce above, Sec. 2, Q. 3 and 4 ; Coleb. Dig. Bk. II. Chap. IV. Sec. 2, T. 45, 46; Bk. Y. T. Ill ; above, pp. 206, 800.
I. A. 5.— PATERNAL GRANDFATHER'S BROTHER'S
SON. Q. 1. — A man died. There are a daughter of his uterine sister and a grand-uncle's son. Which of these is the heir of the deceased ?
480 . HEIRS IN DIVIDED FAMILY. [BK.i,cn.ii,s.l4i.B.l,qJ.
A, — The grand-uncle's son being a " Sagotra'^ (Grotraja) relation, the daughter of the sister cannot be his heir.
Surat, April Srd, 1847.
Authorities.— (1) Mifc. Vjav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2*) f. 58, p. 2, 1. 13 {see Chap. II. Sec. 14 I. A. 3, Q. 1); (3) Vyav. May. p. 140, 1. 1 {see Auth. 4); (4*) Manu IX. 187 {m Chap. II. Sec. 14 I. B. b. 1, Q, 1).
Q. 2. — Two men died. There is a grand-uncle's son and a son of their father's sister. Which of these is the heir ?
A. — The grand-uncle's son is the heir. The son of their father's sister cannot be the heir. — Broach^ July 2Srd, 1849.
Authorities.— (1) Mit. Yyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 4 Q. 4) ; (2*) f. 58, p. 2, 1. 13 {see Chap. II. Sec. 14 I. A. 3, Q. 1;.
I. B. — Heibs not mentioned in the Law Books. a.— MALES.
1.— BROTHER'S GRANDSON.
Q. 1. — A deceased man has left three sons of Bis first cousin. Which of these is the heir ?
A. — If any one of these cousin's sons was united in inter- ests with the deceased, he will be the heir ; but if all are separate, all are equal heirs. — Dharwar, May 17th, 1853.
Authorities. — (1) Vyav. May. p. 134, 1. 4 {see Auth. 2); (2*) Mit. Yyav. f . 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Eemark.— /See Introd. p. 118.
Q. 2. — Who will be the heir to a deceased man when there are his brother's grandson and daughter's grandson ?
A. — The brother's grandson is the heir. Ahmednuggur, December ISth, 1847.
irt,cH.u,8.14i.B.6.1,<i.l.] DAUGHTEB-IN-LAW. 481
AuTHORiTiES.--(l) Vyav. May. p. 134, 1. 4 (see Auth. 2); (?♦) Mit. Vyav. f. 56. p. 2. 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remakk.— 5ee Introd. p. 133, 137, and Introductory Remarks to Sec. 15, Clause 4 ; Brojo Kishore Mitter v. Bddha Qovind Dutt et al.{a)
I. B. a. 2.— PATERNAL UNCLE'S GRANDSON.
Q. !• — Can a man's paternal uncle's grandson be his heir after his death ?
A. — The deceased has left a sister, and a son of a first
cousin. Of these the latter is his heir. — Dharxvary 1845.
AurnoRiTT.— *Mit. Vyav. f. b5, p. 2, 1. l(«ee Chap. I. Sec. 2, Q. 4).
Remarks. — 1. See Introd. p. 128 ; and Introductory Remarks to Sec. 16, Clause 4.
2. Great-grandsons, through different sons of the same man, are Gotraja Sapindas.(&)
L B. 6.— FEMALES. 1 .—DAUGHTER-IN-LAW.
Q. 1, — The father of a widow's deceased husband died. He had certain rights in land and other property. There is no male member of the family who has any claim to the property. Can the widowed daughter-in-law of the deceased claim the property ?
A. — There being no better heir than the daughter-in-law, and she being the nearest relation of the deceased, she is the legal heir. — 8urat, December I5th, 1853.
Authorities. — (1) Manu IX. 187:—
*• To the nearest Sapinda, male orfe>nale, after him in the third de- gree, the inheritance next belongs ; then, on failure of Sapindas and of their issue, the Sam&nodaka or distant kinsman, shall be the heir ; or the spiritual preceptor, or the pupil or the fellow-student of the deceased.'*
(a) 3 B. L. R. 435 A. C, 12 C. W- R. 339. (6) Brojo Kishore Mitter ▼. Radha Gobind Dutt «< al, supra- 81 H
482 HEIBS IN DIVIDED FAMILY. [B».i,cH.ii,8.UM.b.2,qi.
(2) Nirnajasindhn III. p. 95, 1. 17:—
It is stated in the Smfiti Sangraha :-**"rhe son, the son^s son, the son's son's son, and the daughter's son, the wife (patni), the brother, the brother's son, the father, the mother, and the daughter-in-law,(a) the sister, the sister's son, the Sapindas and Sodakas ; in defaalt of the first-mentioned, the latter-mentioned persons are said to present the funeral oblation."
RxMASK.—l. See Introd. p. 132, and above, Bk. I. Ch. n. Sec. 8, Q. 2.
2. The second passage seems to be intended as an explanation of the term " Sapinda," which the S&stri understood to mean "connected by giving funeral oblations."
3. A dauf^hter precedes a daughter-in-law.(6) So does a separated brother, being one of the enumerated heirs.(c) So does a brother's son, ((2) bnt the widow and daughter-in-law were preferred in a claim advanced by divided distant cousins, (e) See Chap. II. Sec. 7, Q. 10 ; Chap. rV. B. Sec. 6 II. f. A daughter-in-law was preferred in suc- cession to a widow as heir to a first cousin (paternal uncle's son) of the deceased husband. The Court said '' the question is which of these two is to be preferred as heir to Saras vati's (deceased widow's) hu8band."(/)
I. B. b. 2.— BROTHER'S WIFE.
Q. 1. — In the case of a Brihman's death, will his sister-in- law or sister's son be his heir ?
A. — ^The sister-in-law is the heir (g),
Tanna, February 28^A, 1852.
(a) This is cited in the Sr&ddha Mayt^kha, referred to in May^kha, Chap. ly. Sec. 8, p. 29.
(6) Mu88t. Murachee Koowr v. Mtkest Ootma Koour, Agra S. B. for 1864, p. 171 ; 2 Macn. H. L. 43.
(c) Venkufpa v. Holyawa, S. A. No. 60 of 1873, Bom. H. 0. P. J. F. for 1873, No. 101.
{d) Wittul Bughoonath v. Huribayee, S. A. No. 41 of 1871, decided 12th June 1871, iind. 1871.
(e) Baee Jetha v. Huribhai, S. A. No. 304 of 1871, Bom. H. C. P. J. P. for 1872, No. 38.
(/) VUhaldds MdnickcUis, v. Jeshubdi, I. L. R. 4 Bom. 219.
(g) See Bk. I. Chap, II. Sec. 14 I. A. 1, Q. 4 to 6.
M.i,CM.ii,8.14iB.6.2,q.8.] BBOTHEfi's WIFE. 483
Authorities.— (1) Vyav. May. p. 140, 1. lieee Auth.2); (2*) Manu IX. 187 (see Chap. II. Sec. U I. B. b, 1, Q. 1).
Bsiu&K.— iSee latrod. p. 130, 132, and Chap. II. Sec. 11, Q. 6.
Q. 2. — A man died. There are his sister-in-law and a male cousin, who have separated from the deceased. Which of these is the heir ?
A, — The sister-in-law, though separate, is nearer, and the preferable heir. — Khandesh, September 5th, 1847.
Authorities.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 2); (2*) Mit. Vyav. f. 56, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4).
Remarks. — 1. See Introd. p. 125 ss.
2. If the male ** coasin" is a brother's son, he inherits, according to Authority 2 (comp. Sec. 12), before the sister-in-law.
3. The ^stri pats the widow next to her husband erroneously in this particular case, on account of the express specification of bro- ther's sons after brothers. See Introd. pp. 128, 132.
Q. 3. — Three brothers lived as an undivided family. The eldest of them died leaving a widow, afterwards tho second and the youngest died •successively. The widow of the eldest has applied for a certificate of heirship. A distant member of the family, four or five times removed from the deceased, has objected to the application. The question is,, which of these relations is the heir ?
A, — ^All the brothers died as members of an undivided family. Each surviving brother therefore became heir of the predeceased. The last surviving brother therefore was the heir of the two who died before him. The widow of the eldest brother, being the nearest heir to the deceased, is entitled to inherit the property.
Surat, August 10th, 1853.
AuTHORTTiES.— (1) Mit. Vyav. f. 65, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4); (2) Manu IX. 187 (see Chap. II. Sec. 14 I. B. 6. 1, Q. 1).
Remark.— ^66 Introd* p. 125 sb.
484 HEIRS IN DIVIDED FAMILY. [BK.i.cH.ii,8.14i.B.b.8,qi.
I. B. b. 3.— PATERNAL UNCLE^S WIDOW.
Q. 1. — A dumb son of a deceased man lived, with his property, under the protection of his sister. He afterwards died, leaving his sister and a paternal uncle's widow. WTiich of these is his heir ?
A, — The aunt, though she may have separated herself from the deceased, is his heir. If the aunt had no existence, the sister, according to the rule laid down in the Mayflkha, would have been the heir, and in her absence other relatives would have succeeded to the property.
Ratnayhfirry, February ith, 1852.
AuTHOBiTiKS.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 3); (2) Yyar. May. p. 140, 1. 1 (see Chap. II. Sec. 14 I. A. 1, Q. 1) ; (3*) Mit. Vyaf. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Eemarks. — 1. See Introd. pp. 117, 125, and Sec. 14 I. A. L
2. In the case of TJpendra Mohan Tagore et al v. Tkanda Dasi et al,{a) it is fiaid that tho uncle's widow does not succeed, but this is not the law in Bombay. See below, 6 4.
Q. 2. — If there are a paternal uncle's wife and a maternal uncle of a deceased person, which of them will be his heir ?
A, — If the deceased has left no male issue, his heir will bo the paternal uncle's wife, and not the maternal uncle.
Ahmednuggiir, October Kith, 1846, Authority.— Mit. Vyav. f. 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q.4). Remark.— iSee Introd. p. 125, and Introductory Remarks to next Section.
Q. 3. — A man died, and there are his father's second cousin and paternal aunt. Which of these will be his heir ?
A, — If the father's second cousin had not separated from the deceased, he will be the heir ; but if he had, the aunt will be the heir.— ^anna, June 2bth, 1852,
Ca) 3 B. L. R. 349 A. C. J.
Bi.i,cfi.n,8.14i.Klr.6,q.l.] WIDOW OP GENTILE, TO 4tH DEO. 485
AuTHORiTiBs.— (1) Vyav. May. p. 136, 1. 4 ; (2) p. 144, 1. 8 ; (3) p. 140, 1. 1 {see Auth. 5) ; (4*) Mit. Vyav. f. 56, p. 2, 1. 1 {see Chap. 1. Sec. 2, Q. 4); (5*) Maau IX. 187 {see Chap. II. Sec. 14 1. B. b. 1, Q.1)-
Bejiabk. — See Introd. p. 125.
I. B. b. 4.— PATERNAL UNCLE'S SON'S WIFE.
Q, 1. — A man died. Is his cousin's wife or her daughter- in-law his heir ?
A, — The cousin's wife, and not the daughter-in-law, is the heir. — Ahmednuggur, May 4th, 1854.
Authorities.— (1) Vyav. May. p. 134, 1. 4 {see Auth. 2); (2*) Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Remarks. — 1. 5e6 Introd. p. 125.
2. The widow of a first cousin of the deceased on the father's side was held to have become by her marriage a Gotraja Sapinda of her husband's cousin's family, and to have a title to succeed to the estate of that coasin on his decease, in priority to male collateral Gotraja Sapindas, who were seventh in descent from an ancestor common to them and to the deceased, who was sixth from that common ancestor,(a)
At Allahabad, on the other hand it was held that according to the Mit&kshar& none but females expressly named can inherit, and that the widow of the paternal uncle of a deceased Hindu, not being so named, is not entitled to succeed to his estate in preference to the deceased's father's sister's two sons, {b) These, however, being but Bandhus, could not come in until the Gotrajas were exhausted, (c)
I. B. 6. 5. —THE WIDOW OF A GENTILE WITHIN THE FOURTH DEGREE.
Q. 1. — A man died. A widow of his distant male coasin, four times removed from the deceased, is alive, and the question is, whether she is his heir ?
(a) Lallubkai v. Cassibai, I. L. R. 5 Bom. 110, S. C. L. R. 7 I. A. 212. (6) Qauri Sahai v. Rukko, I. L. R. 3 All. 45. (c) See Mit. Chap. II. Sec. 1, para. 2, and LalluhhaVe case, #tcpro.
486 HEIBS IN DIVIDED FAMILY. [bk.i.ch.ii,s.14ii,^L
A. — If there is no nearer relation of the deceased, tii» widow of a cousin fonr times removed from the deceased may inherit from him, — Sural, September 17 thf 1845.
AuTHOEiTT.— Mit. Vyav. f . 55, p. 2, 1. 1 {see Chap. L Sec. 2, Q. 4).
Bemulks.— 1. See Introd. p. 125.
2. The widow of a joint cousin succeeds in preference to descend- ants of a long severed branch, (a) The S&stri said the widow's right was equally good to joint and to separately acquired property of her husband's cousin, but he seems to have grounded his opinioa partly, if not wholly, on the widow's having lived in community with the cousin.
3. The widow of a collateral does not, it has been ruled, take an estate in the property of her husband's Gotraja Sapinda which iht can dispose of by will after her death. (6)
11. SAMlNODAKAS* (Oentilbs within the Thirteenth Diqbbb.)
Q. 1. — Should a deceased person have no near relation^ can a distant relative inherit his property ? and what may be the degree of distance ?
A. — In tho absence of a near relation, if it can be shown that the party claiming to be the heir and the deceased are descendants of the same ancestor^ he will be the heir. Ahmednuggur, December 24ith, 1851.
AuTHOBiT£ES. — (1) Vyav. May. p. 134, 1. 4 {$ee Chap. I. Sec. X, Q. 4) ; (2) p. 140, 1. 1 and 6 ; (3*) Mit. Vyav. f. 58, p. 2, 1. 15 :—
" If there be none such (Sapindas) the succession devolves on kindred connected by libations of water, and they must be understood
(a) MtLsst. Bhuganee Daiee et al v. Qopaljee, Agra 8. R. fw 1862, Part I. p. 306.
(6) Bharmangavda v. Rudrapgavda, I. L. B. 4 Bom. 181. See Introd. p. 335 ss. See Tupper's Panj. Cust. Law, vol. II. p. 148, whew • widow of a collateral ending the line, or one of a group of brothers ending it, takes the share that would have fallen to her husband bad he been alive.
■[.i.ci.nAlS.] BANDHUS. 487
to reach Beven degrees beyond the kindred connected by faneral oblations of food, or else as far as the limits of knowledge as to birth and name extend.*' (Golebrooke, Mit. p. 351 ; Stokes, H. L. B.
m.)
Bemabk.— iSm Introd. p. 132.
Q. 2. — A BrlLhrnan^ who held the Joshi and the Kulakara- ni Watans, died. His surviving relations are distant eight or nine removes. Can they inherit the Inam ?
A. — Yes, they can. — Poona, August 29th, 1851.
AuTHoamr.— Mit. Vyav. f. 55, p. 2, 1. 1 {aee Chap. I. Sec. 2, Q. 4.)
Bemabks. — 1. See the preceding case, and Nursing Naravn ei nl v. Bhuttnn LaU ei al (a) ; Musst. Dig. Daye et al v. Bhuttun Lall dal.(b)
2. A great-grandson of the 5th in ascent from propositus succeeds before his father's sister's son. (o)
3. In ThoTcoorain v. Moharddl {d) it was held that a sister's son does not inherit according to the Mit&kshar&. His position as a Bandha had been abandoned, and the decision only excluded him from the nearer Sapindas.
4. A male descendant in 5th degree from great-grandfather of propositus succeeds before sister's son. (e) The possibility of the latter's succession only is questioned.
SECTION 15.— BANDHUS. i.e. COGNATES. (/) Introductory Remarks.
1. Under the heading Bandhu, "cognate kindred/' the Mi-
^ ^^^^ \
(a) C. W. E. for 1864. p. 194. (*) 11 C. W. R. 500.
(c) ThakoorJeehnathSingJi v. The Court of Wards, L. R. 21. A. 163.
(d) 11 M. I. A. 386.
(e) Kooer Goolabdngh et al v. Bao Kwmm Sing, 10 Beng. L. R 1 P. C. S. C, 14 M. I. A. 176.
(/) III Bengal, the Bandhus come next after the nearer Sapindas, i.e. before descendants from ascendants beyond the great-grandfather.
488 HEIBS IN DIVIDED ]?AMILT. [Bi.i,cH.n,i.l5.
t&k8har&, Chap. II. Sec. 6, clause 1, and the MayAkha, Chap. IV. Sec. 8, p. 22, enumerate nine persons only, namely : —
The man's r 1. The father's sister's sons.
own cog- < 2. The mother's sister's sons.
nates. v 3. The maternal uncle's sons.
•TT- if ^^ . C^' The father's paternal aunt's sons. His father's i e mu r i.u > ^ i ^.
< 5. The father's maternal aunt s sons.
^ * C 6. The father's maternal uncle's sons.
His mo-r7. The mother's paternal aunt's sons.
ther's cog- <8. The mother's maternal aunt's sons.
C9.
g c fl a«^
g «S c8 ^^i^
00 fl fl ©300
£ oj 05 ** ©t*
^ oj jS c- t.
© ?? (n ■T»»^ r;
J3 >?
o §.§!?- gs
nates. C 9. The mother's maternal uncle's sons. J ^*o*o § 2 §
The enumeration may perhaps be intended to mark merely the extreme terms of the Sapinda- relationship, the connection on one side or both being established through a mother, and extending only to four steps between the persons regarded as Bandhus. It seems very likely that an extension was given to the terms seven and five aa marking the gradation of Gotraja Sapindaship and Bandhaship cor- responding to that devised by the Canon lawyers on the basis of the Boman law. By this the degrees were counted only upwards from the more remote of two collateral descendants to the common stock which had previously been counted both up and down to deter- mine the nearness of relationship. It would seem appropriate that when definite connexion with names for each grade must be traced on the father's side from the same great-grandfather, it should on the mother's side be traced from one point lower or from the same grandfather. This is confirmed by the early laws of the other Aryan nations. But in the modem law there is no doubt but that the foor steps may be counted upwards on either side to coincidence of origin. See above, Introd. p. 242.
2. From this enumeration, and the fact that the wordBandhuis frequently used to designate these nine relations exclusively, it might be inferred that the list was intended to be exhaustive, and to preclude the wider interpretation of Bandhu in the sense of ** relation," or •' distant relation " in general. Consequently the other relations, as the maternal uncle, maternal grand- uncle, &c., would be excluded from inheriting.
Boopchum Mohapaier v. Anundlal Khan, 2 C. S. D. A. B. 35; Deyamik Boy et al v. Muthoor Nath Ghose, 6 C. S. D. A. R. 27. But according to Inderjeet Singh et al v. Muset. Her Koonwar et aU Calc S. D A. R. for 1857, p. 637. Gotraja Sapindas and Sam&nodakas are preferred to Bandhus.
BK.i,CH.u^.l5.] BANDHUS. 489
3. This inference, however^ becomes very improbable if another passage of the Mit&kshadl is taken into acconnt, where Yijn&nesvara apparently gives a different interpretation of the word Bandhu. (a) He says that the term " gentiles, " Gotrajas, includes ** the paternal grandmother, Sapindas (relations within the sixth degree), and Sam&nodakas (relations within the thirteenth degree)." Parsuing the same subject he adds {ibid, in cl. 3),< '' on failure of the paternal grandmother, the kinsmen sprung from the same family as the
deceased, and Sapindas (within the sixth degree) inherit the
estate. For kinsmen within the sixth degree (Sapindas), and sprung from a different family, are indicated by the term Bandhu.'* So also the Vyavastha referred to, though doubted by, the Privy Council in Thakoorain Sahiba v. Mohun LaU. (b) Hence it would seem that Vijn&ne^ vara interpreted Y&jnavalkya's term ** Bandhu " as meaning " relations within the sixth degree, who belong to a different family,'* or at least that all such persons who come under the term " Sapinda," according to the definition given in the Ach&rak&nda {see Introd. p. 118), are included by the term Bandhu : consequently the maternal uncle, the paternal aunt, &c., would also be entitled to inherit as Bandhus. In the passage translated, Mit. Chap. II. Sec. 12, p. 2, the word " MUtribandhu" is explained as including the maternal uncles, and Goldstiicker (On the Deficiencies, &c.,) refers to Vijii&nesvara's Commentary on Y&jn. III. p. 24, for the same sense.
4. For the correctness of this wider interpretation, a passage of the Viramitrodaya may be adduced, where Mitramisra likewise contends that other relations, " the maternal uncle and the rest," are comprised by the term Bandhu. (c) For, says he, if maternal uncle's sons were allowed to inherit and their fathers not, this would be very improper, as nearer relations would be excluded to the advantage of more distant kindred, (d) A similar opinion was given by the 6&stri8 also in Musst. Umroot et al v. Kulyandass et al. (e) They state that the Bhinnagotra Sapindas, or blood relations within seven degrees, not belonging to the deceased's family, inherit. But this assertion is too wide and vague to be of use, because Y&jiiavalkya
(a) Coleb. Mit. Inh. Chap. II. Sec. 6, Cl. 1 ; Stokes, H. L. B. 446.
(b) 11 M. I. A. 386.
(c) The father's maternal uncle inherits, Gridhari LaU Roy v. The Bengal Oovemment, 12 M. I. A. 448.
(d) Viramitrodaya, f. 209, p. 21, 1. 6, Tr. p. 200. See also Macnagh- ten's Principles and Precedents, Ed, H. H. Wilson, p. 37, note.
(e) 1 Borr. R. 323. 62 H
490
HEIRS IN DIVIBED FAMILY.
[bk.i,ch.ii^.15.
I. 53 (a) says that, in the mother's line, the Sapinda relationship ceases with the fifth person, {b) Consequently a man's Sapindas in his mother's family cease with her great-grandfather in the direct ascending line, and with her grandfather's fifth descendant in the collateral line, (c) This principle mast also be borne in mind in the case of descendants from daughters of gotraja relations. Thns the deceased's great-great-granddaughier's son would be no longer a Sapinda. The view here taken has been adopted by the Priyy Council in Gridhari Lall v. The Oovemment of Bengal, {d) In the answers to the questions of the following section, the ^&stris allow, besides the so-called nine Bandhus, the following Bhinnagotra Sapindas to inherit — 1, sister's son ; 2, maternal uncle ; 3, brother's daughters; 4, sister's daughters. They quote as authorities partly the passage of Y&jnaTalkya authorising the Bandhus to inherit, partly the verse of Manu, which prescribes ** that the nearest Sapinda inherits," and for the maternal uncle, the passage of the Yiramitrodaya above cited.
(a) See Introduction, p. 137.
(b) It is for this reason that the prohibition to marry a person of the same kindred extending on the father's side to the 7th, extends, on the mother's side, only to the 5th degree, K&rada Pt. II. Chap. XII. para. 7. So Vyav. May. (as to an adopted son) Chap. IV. Sec. 5, pi. 32.
(c) Table of a man's (A) Sapindas in his mother's family:—
^6-
Mother's father.
Mother.
A.
id) 1 B. L. R. 44, P. C. S. C. ; 12 M. I. A. 448.
BK,T,cH.ii,s.l5.] BANDHUS. 491
The passage, cited in the Vyav. May. Chap. IV. Sec. 10, p. SO (Stokes, H. L. B. 106), is quoted in the D&ya Bh&ga,Chap. IV. Sec. 3, p. 31 (Stokes, H. L. B. 257), and in Coleb. Dig. Bk. V. T. 513, to show the order of succession to woman's property. The nearness of the relationship is by Jtmtita V&hana made a ground of succession through the benefits conferred by the oblations offered by a sister's son, <Sbc., and a passage of Vriddha S&t&tapa is quoted to prove tbe obligation to present these oblations. In translating this, Colebrooke has confined its import to offerings for the wives of the maternal nude, sister's son, Ac., but Groldstiicker, ** On the Deficienccs, &c." p. 11, says that the duty is, according to the comment of tbe D&yanirnaya, reciprocal between the maternal uncle and his nephew, and that it is due by a son-in-law, a pupil, a friend, and a daughter's son to their several correlatives. As the maternal uncle thus per- forms a iSr&ddha for his nephew, he is on this theory entitled to succeed to his property, and before the cousin, more remotely bene- ficial to the manes of the ancestors of the propositus.
5. Regarding the order in which the Bhinnagotra Sapindas suc- ceed to each other, it is diflScult to speak with certainty. It would seem however that the " nine Bandhus " mentioned in the law books ought to be placed first, if effect is to be given to the principle of the Maytikha, that " incidental persons are placed last." (a) Amongst tbe other Sapindas, 'nearness to the deceased' ought, as the ^astris also seem to indicate, to be the principle regulating the succession. (6)
(a) See Mayuka, p. 106, Borradaile ; Stokes, H. L. B. 88. So also the Sftstris in Mtisst, Umroot et al y, Kuhjandass et al, 1 Borr. Rep. p. 323.
(b) A sister's son was preferred to a maternal aunt's son, Gun-esh Chunder Roy v. Nilkomul Boy et al, 22 C W. R. 204 C. R. The great- grandson, through his mother, of an ancestor, common to a great - gi-andson by purely male descent, is not in Madras heir to the latter, K.Klssen LalaY. Javallah Prasad Lala^ 3 M. H. C. R. 346. (See supra, page 481 .) A paternal uncle's daughter's son is an heir accord- ing to Bengal law. Guru Gohind Shaha Mandal et al v. Anand Led Glwseet al, 5 Beng. L. R. 15 F. B. S. C, 13 C. W. R 49 F. B., which apparently supersedes Baj Gohind Bey v. Rajesttureo Dossee, 4 C. W. R. 10 C. R. The 6istris at 1 Borr. d23(Mus8t. Umroot et al v. Kulyan- doss el al) say that descendants through tho daughter of propositus, to the 7th degree, are his asagotra sapindas. Tho grandson of a maternal grandfather's brother is an heir by Bengal law, Brajahishor Milter v. Radha Gohind Dutt, 3 Beng. L. R. 435. A propositus being third in descent, a collateral, 5th in descent from the common
492 HEIRS IN DIVIDED FAMILY. [bk.i,cb.ii^15a.U1.
In the case of Mohandas t. Knshnabai, (a) it was held that this latter principle most prevail over the rule as to incidental persons even amongst the Baudhus, and that a mother's sister's son was excluded by maternal uncles of the propositus. Beference is made to Amrit Kumari Debi y. Lakhinarayan, {b) as well as to Gridhari LaU Roy*$ case, (c) and it may probably be considered as now finally settled that the mention of the Bcmdhus in the rule is not ezhanstive, and does not give precedence to any one enumerated over others nearer to the propositus in the same line of connexion. The following cases have been arranged on the same principle as those r^arding the Got rajas.
SECTION 15.— BANDHUS OR COGNATES. A. — Mentioned in the Law Books. L— FATHER'S SISTER'S SON. Q, 1. — A man died, and none of his relatives are ahVe except his father's sister's son, who performed his funeral rites and receives emoluments as priest from his clients. Is he the heir of the deceased, and is he responsible for his debts?
A. — If the deceased has no wife, his father's sister's son will be his heir, and he, having received the emoluments belonging to the deceased, is responsible for his debts. Surat, January 31s<, 1846.
AuTHoaiTT. — *Mit. Vyav. f. 59, p. 1, 1. 2 : —
" On failure of gentiles, the cognates are heirs. Cognates are of three kinds, related to the person himself, to his father, or to his mother, as is declared by the following text : —
ancestor, inherits to him in preference to his paternal aunt's son, T. Jihnaih Sing v. The CouH of Wards, 6 Beng. L. R. 443.
Two female links in the same line of descent are not recognized in any of these cases. It is doubtful whether the right transmitted through a female passes without being realized by actual succession more than one step further. See below, B. II. (3).
(a) I. L. R. 5 Bom. 597.
(6) 2 Beng. L. R. 28.
(c) 12 M. I. A. 448.
B£.i,cH.ii,8.15B.i.(l),q.l.] BANDHUS-^SISTEB's SON. 493
"The sons of his own father's sister, the sons of his own mother's sister, and the sons of his own maternal uncle, must be considered as his own cognate kindred." (Colebrooke, Mit. p. 352 ; Stokes, II. L. B. 4480
Remark.— The Dajabh&ga, Chap. XI. S. 6, p. 9, says that the grandsons throagh daughters of ascendants inherit through a con- nexion with their mothers' gotra of birth by the oblations that they must offer to her father in each instance. They thus stand in a manner on a par with grandsons through sons. {See Smyiti Chan- driyi. Chap. XI. S. 6, para. 15.)
A. 2.— MATERNAL UNCLE'S SON.
Q. 1. — Can a deceased male's mother's brother's son be his heir ?
A. — Yes. — Nuggur and Khandesh, 1845. Authority not quoted. See the preceding case.
Q. 2. — A man died. There is a son of his maternal uncle. He claims to be the heir of the deceased, and he is not opposed by the near relations. Can he, under these circum- stances,, be recognized as heir ?
A, — If the maternal uncle's son is not opposed by auy near relation of the deceased, there is no objection to his claim on the ground of the Hindu law. Surat, January 2bth, 1855.
AuTHOfiiTY.— Yyav. May. p. 140, 1. 1 {see Chap. II. Sec. U I. A. l,Q.l)-
B. — Not Expressly Mentioned in the Law Books. I.— MALES. (1)~SISTER'S SON. Q. 1. — Can a man's sister's son be his heir ? A. — Yes. — Tanna, October bth, 1855.
AuTHOEiTY.-— Vyav. May. p. 140,1. 1 {see Chap. II. Sec. 14 I. A. 1, Q 1). Remabrs.—I. See Introductory Remark to Section 15, Clause 4.
494 HEIES IN DIVIDED FAMILY. [bk.i,ch.ii,8.15b.i.(1),(i1.
2. According to the Mith ila law and to that of Madras, a sister's son it was once held, does not inherit as a Bandhu. (a) Bat a sister's son is a Bandhu (b) and inherits in this character though not as a gotraja* sapinda.rc) The Nirnaya Sindhu, quoted above (Sec. 14 1. B. b. 1, Q. 1), expressly names a sister's son as heir, (d) and gives to the sister's son a place amongst those who may present funeral oblations, and this is adopted in the SrAddha Mayiikha referred to in the Yyavabara MayOkha, Chap. IV. Sec. 8, pi. 29.
3. Sister^s sons have no right so long as a sister survives, bat take before sister's daughters . (e)
(a) Thakoorain Sahiba v. Mohvn Lall, 11 M. I. A. 386 ; Doe Bern, KuUammal v. Kuppu PiUai, 1 M. H. C. R. 85.
(b) See Prof. H. H. Wilson's works, vol. V. p. 14 ; Introductory Remarks to this Section; 2 Macn. Prin. and Prec. 84; Omrit Kooman Dabee v. Luchee Narain Ohuckerbutty, 10 C. W. R. 76 F. B. ; Amriia Kumari Debt v. Lakhinarayan Chuckvrbutty, 2 B. L. R. 29; Srlnivas Ayangdr v. Rengasami Ayyangar, I. L. R. 2 Mad. 304, followed in Sadashiv v. Dinkar, Bom. H. C. P. J. F. 1882, p. 17.
(c) Amrita Kumari Debt v. Lakhinarayan, 2 Beng. L. R. 28 P. B.; Chelikani Tiruyati v. B. S. Venkata Qopala NaraHmha, 6 M. H. C. R. 278 ; Gridhari Lall Roy v. The Bengal GovernmenU 12 M. I. A. 448.
{d) Amrita Kumari Debi v. Lakhinarayan, 2 Beng. L. R- 28 F. B.
(e) Icharam v. Purmanand, 2 Borr. 515. In Madras it has been ruled that a sister is indeed in the line of heirs as being a bandbu, but that she is to be postponed to a sister's son. (/) The doctrine of sapinda relationship explained above, Introd. p. 120 ss., and adopt- ed in Bengal as that of the Mit&kshar&, {g) is fully accepted by the learned judges ; but combined with that of a woman's losing her sftgotraship by passing into another family. Nilakantha, as we ha^e seen, says this is not decisive, as the right of a sister depends on an original consanguinity which cannot be lost. In Bombay, as the ^Astri's reference shows (though it is not pointed), the Mitaksharl is not thought to be opposed to the precedence of a sister over a sis- ter's son, and the preference which in a collateral line of gotraja sapindas may be claimed by a son over his own mother or grand- mother rests on his connexion with the main stem through his father, whose place he may be supposed to take in preference to the
(/) Lakshman Ammal v. Tiruvengada, I. L. R. 5 Mad. 241; KM Ammal v. Badakristna Aiyan, 8 M. H. C. R. 88.
(3) Umard Bahadur v. Udvi Chand, I. L. R. 6 Calc. 119.
K.i,cH.n,B.15B.i.(2)q.l.] BANDHUS — MATEBNAL UNCLE. 495
4. In a Vyavastha of the 6&stris of the Sadar Court, N.W. P., dated 28th December 1860, the sister's son, it is said, inherits before the paternal aunt's son, (a) and a sister's son was preferred to a mater- nal aant's son. These cases are opposed to the general principle that the persons actually specified take before those only implied, unless the specification in this case be meant merely to indicate the extreme points of heritable connexion. See above, pp. — 1^, 492.
5. In Laroo v. Sheo (6) the property came to a deceased intestate, apparently from his maternal uncle, and the Sadr Addlat decided that property inherited through the female (maternal) heir, must continue to descend in that line.
6. A fifth descendant from the grandfather takes precedence of the sister's son. (c)
Q. 2. — k man died. His property is in the possession of his sistor^s son. There is, however, a half-sister's son be- sides the sister's son. The question is, which of these is- the heir ?
A, — The sister's son is the heir. The half-sister's son is not the heir. — SuraU Atiguat hth, 1845*
Authorities.— (!♦) Mit. Vyav. f . 55, p. 2, 1. 1 [see Chap I. Sec. 2, Q. 4); (2*) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. U I. A. 1, Q. 1).
Remaek.— iSfee Sec. 14 I. A. 2, Q. 1.
B. I. (2)— MATERNAL UNCLE. Q. 1. — Can a maternal uncle be the heir of his nephew ? A.—YeB.—Tanna, Fehrua/ry \2tTi, 1859.
widow. In the case of a male deriving his right only through his mother, this reason for preferring him to her or to one standing on aneqoality "with her in relation to the propositus does not exist, the mother or her sister stands one degree nearer to the propositus in the same line as the son. See Mohandas v. Krishnahai, I. L. R. 5 Bom. 597.
(a) Gunesh Chunder Roy v. Nil Komul Roy et al, 22 C W. K. 264.
(J) 1 Borr. 80.
(c) Kooer Qoolab Sing et al v. Rao Kurun Sing, 10 Ben. L. R. 1.
496 HEXES IN DIVIDED FAMILY. [bk.i.ch.ii,s.15b.ii.(1),(1.1.
Authority.— Viramitrodaya, f . 209, p. 2, 1. 6, Transl. p. 200 :— " In the law-book of Mann the word Saknlya (which is used in Terse IX. 187) : On the failure of them (Sapindas) the Sakulyas are (heirs of a separated male), or the teacher, or also a pupil : inclades Sagotras (gentiles within the sixth degree), Sam&nodakas (gentiles within the thirteenth degree), the maternal uncles, and the other (Sa- pindas belonging to a different family), and the three (classes of re- lations called) Bandhu. In the passage of Yogisvara (Y&jfiavalkya, iee Chap. II. Sec. 2, Q. 2) also the word Bandhu indicates the ma- ternal uncle. Otherwise, if the maternal uncles were not included (by the word Bandhu), a great impropriety would take place, since their sons would be entitled to inherit, and they who are more nearly related (to the deceased) than the former, would not have the same right.*'
Q. 2. — If a man applies for a certificate of heirship on the ground that the deceased was his foster-son, should this application be granted ?
A. — In the case to which this question refers, it appears that the deceased was applicant's sister's son. He should therefore call the deceased not his foster-son but his nephew, and as the maternal uncle of the deceased, he should be granted a certificate. — Dharwar, November 16th, 1846.
AuTHOEiTY.— ♦Viramitrodaya, f. 209, p. 2, 1. 6. See the preceding case.
B. II.— FEMALES.
(1) -GRAND-DAUGHTER.
Q. 1. — Has a grand-daughter the same right to the pro- perty of her grandfather as a grandson ?
A. — No. — Tanna, September 15th, 1851.
AuTHORiTT.— Mit. Vyav. f. 50, p. 1, 1. 7.
Eemabks.— 1. In an undivided family the grand-daughter cannot inherit.
2. In a divided family she might inherit on failure of nearer heirs as a '* Sapinda relation belonging to a different fiamily." See Intro- ductory Remark to Section 15, Clause 5.
BK.i,CH.ii,8.15B.ii.(2),q.l.] BANDHUS-BROTHEB's DAUGHTER 497
3. It has been ruled at Madras that a grand-daaghter's son is not entitled to inherit to a second cousin, great-grandson in a male line of the same ancestor, (a) but this is not so in Bombay. See the Introductory Remarks to this Section.
B. II. (2)— BROTHER'S DAUGHTER.
Q, 1. — A man, who was not married, died. There are two daughters of his brother. One of these daughters has a son. The son's father is bis guardian. He claims the possession of the deceased's property. The daughters have no objection to the claim of the son's father. The question is, whether the son of a daughter can be recognized as heir, while there are two daughters of the deceased ? and whether the father of the son has right to be his guardian ?
A, — The brother*s two daughters are the nearest relations of the deceased. They are therefore legal heirs, and while they are alive, the son of one of them cannot be considered an heir. It is therefore unnecessary to discuss the question of the right of the father to be the guardian of his son.
Ahmedabad, March 2bth, 1855.
AuTHoamEs.— (1) Vyav. May. p. 140, 1. 1 (see Chap. II. Sec. 14 I.A.1,Q. 1); (2)p. 137, 1.4.
Rkmaeks — 1. See Introductory Note to Section 15, Clause 4.
2. In the case of Choorak Monee Bose et alv. Prosonno Coomar Mitter, (b) it was held that a brother's daughter's son is not an heir, and so in Govindo Hureekar v. Woomesh Chunder Roy. (c) But the 6&stri8 in Umroot v. Kulyandaa {d) pronounce in fttvor of the niece's sons and even grandsons. And a brother's daughter's son was recognized as an heir in Musst. Doorga Bibee ei al v. Janaki Pershad, (e) The brother's daughters were postponed to a first cousin once removed (first cousin's son) in the male line, in Gangaram v. BaUia et al. (/) Comp. Q. 2, p. 408.
(a) K. Kissen Lala v. Javallah Prasad Lala, 3 M. H. C. E. 346.
(b) 1 C. W. R. 43.
(c) C. W. R. F. B. R. 176. {d) 1 Borr. R. 314.
(e) 10 Beng. L. R. 341.
(/) S. A. No. 519 of 1873 (Bom. H. C. P. J. F. for 1876, p. 31). 63 H
498 HEIBS IN DIVIDED FAMILY. [Bi.i,CH.ii,B.15B.ii.(8),q.2.
B. n. (3)— SISTER'S DAUGHTER.
Q. 1 . — A man died. There were three daughters of his sister. Two are alive, and one died before the man's death, leaving a son. The question is, which of these is the heir ?
A. — The two surviving daughters of the sister are the heirs. The son of the third daughter, who died before the man's death, has no right to inl^rit from the deceased.
Ahmedabad, June 26<A, 1855.
Authorities.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 3) ; (2) p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1) ; (3*) Mit. Vyav. f. 65, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4).
Rem A&K.— See Introdactory Note to Section 15, ClauBO 4.
Q, 2. — Can a " Bh&chi," or a daughter of a sister, of a man of the goldsmith caste, be his heir ?
A, — ^Yes. — Ahmednuggur, December 28th, 1853.
AuTHoarriBs.— (1*) Mit. Vyav. f. 65, p. 2, L 1 (see Chap. I. Sec. 2, Q. 4) ; (2*) Vyav. May. p. 140, 1. 1 (see Chap. II. Sec 14 I. A. 1, Q. 1).
Bemabks. — 1. Grand-nephews through the mother of a deceased succeed to him, Musst. Umroot et al v. Kulyandas et al. (a) A sister's daughter's son is, it is said, an heir according to the Mit&kshar& ; and as such can question a gift by the deceased's widow as invalid in law, JJnaid Bahadur v. Udoichatid. (h) This, however, seems questionable. ** It is clear that a son of a daughter of a Other's brother is mach further removed in the order of succession than the son of a father's brother or a son of such a son." (c) Thus the intervention of even one female link is a cause of postponement. Much more where the heritable right is traced through a daughter and then again through her daughter to a grandson or granddaughter. The sacrificial con- nexion which at least indicates heritable relation is lost in the case of a maternal grandmother's family : only one female link is properly admitted between the claimant and the stem, but it is not certain, as the case cited shows, that the principle will be rigorously followed by the Courts.
(a) 1 Borr. 314. (6) I. L. R. 6 Calc. 119.
(c) Pr. Co. in Bani Anand Kumvar v. The Court of Wards, I. L. B. 6 Calc. at p. 772.
Bi.i,CH.m.8.1,Q.2.] HEIES TO A YATI^ 499
2. A maternal grand-niece inheriting property takes it with the same power of alienation as a daughter or sister, (a)
3. The grandson of the maternal uncle of the mother of propositus is in the line of heirs, (b)
4. A sister's grandson succeeds to property inherited from her father by a woman in preference to her own daughter under the- Bengal Law. (c) The Pandit relied on Yishnu's Dharma^stra,. (Transl. p. 68.) A nephew's daughter is not an heir according to* Bengal Law. (c2)
CHAPTER III.
HEIRS TO MALES WHO HAVE ENTERED A RELIGIOUS ORDER.
SECTION 1.— HEIRS TO A TATI,
Q, 1. — Can the relatives of a ^'Sannyasl" claim his pro- perty?
A, — No relative can claim any property acquired by a man during the time he was " Sanny^si/' — Dharwar, 1846.
AuTHORiTT.— * Mit. Vyav. f. 69, p. 1, 1. 15 : —
" A virtuous pupil takes the property of a yati or ascetic. The virtuous pupil, again, is one assiduous in the study of theology, iu retaining the holy science, and in practising its ordinances." (Cole- brooke, Mit. p. 355; Stokes, H. L. B. 451.)
Q. 2. — How should property be divided among three disciples of a deceased Guru? and if some of them are absent should their shares be held in deposit, or made over to those that are present ?
A. — The Stkstras do not provide for division of a Guru's property among his disciples. One of them should there-
(a) Tuljaram Morarji v- Mathv/radas Dayaram, I. L. E. 5 Bom. 662.
(b) Batnasubbu Chetti v. Ponap]pa CTietti, I. L. R. 5 Mad. 69.
(c) Sheo Sehai Svngh el al y. MmsU Omed Konwur, 6 Calc. S. D. A.R.301..
(d) Badha Pea/ree Dossee et al v. Doorga Monee Dossia et al, 5 Calc. W. R. 131 C. R. See Ldlubhai v. Mankiwarbai, I. L. R. 2 Bom. 435,. and above, p. 487 (/).
500 HEIRS TO BBAHMAOHABf. [bk.i,ch.iit.85,^2.
fore take it and perform the funeral rites of the deceased, according to custom. — Ahmednuggur, September 26th, 1845. Authorities not quoted. See the preceding question.
SECTION 2.— HEIRS TO A NAISHTHIKA
BRAHMACHARt.
Q. 1. — Is an Achirya or Guru the heir of his disciple?
A.—Yos.—8holapoor, October 27th, 1846.
Authority. — ♦ Mit. Vyav. f. 59, p. 1, 1. 14: —
" It has been declared that sons, grandsons (or great-graDdsoos) take the heritage, or, on failure of them, the widove or other sac- cessors. The author (Y&jfiavalkya) now propounds an exception to both those laws. The heirs of a hermit, of an ascetic, and of a pro- fessed student, are, in their order, the preceptor, the virtuouB pupil, and the spiritual brother and associate in holiness.
" The heirs to the property of a hermit, of an ascetic, and of a stu- dent in theology, are in order, that is in the inverse, the preceptor, a virtuous pupil, and a spiritual brother belonging to the same hermitage.
" The student (Brahmachdrin) must be a professed or perpetual one (Naishthika), (a) for the mother and the rest of the natural heirs take the property of a temporary student (Upakurvana) ; (J) and the preceptor is declared to be heir to a professed student as an exception [to the claim of the mother and the rest]." (Coleb. Mit. 354; Stokes, H. L. B. 450-1.)
Remark. — Only if the deceased was a Naishthika Brahmachirf, t. e. a student, who had renounced the world and professed his intention to live all his life with his preceptor.
Q. 2. — Can a preceptor (Guru) be the heir of his disciple (Sishya) ?
(a) See Smriti Ohandrika, Chap. XI. S. 7. Naishthika is derived from nishtJuif " fixed resolve," and means literally a person who has taken the fixed resolution (to stay with his preceptor until death).
{b) Upakurv&na means literally a person who pays or gives a present (to the preceptor at the end of his studentship).
BK.T,CH.iv.A,8.2,Q.l.] HEIBS TO FEMALES — UNMAREIED. 501
A. — As the parents of the disciple had devoted him to the service of the Guru, and as he was not married, the Guru is his heir. — Sholapoor, July 15th, 1846.
Aathority not quoted. See the prdceding Question.
CHAPTER IV. HEIRS TO A FEMALE. A. — Hbibs to an Unmabribd Female, (a) SECTION 1.— BEOTHER. Q. 1. — Can a brother inherit his sister^s property ? A. — ^Tes. — Dharwar, 1846. AiTTHORrrY. — ♦Mit. Vyav. f. 62, p. 1, 1, 7 : —
"But her uterine brothers shall have the ornaments for the head and other gifts, which may have been presented to the maiden by the maternal grandfather (or the paternal uncle) or other relations, as well as property which may have been regularly inherited by her. For Baudh^yana says :— 'The wealth of a deceased damsel let uterine brothers themselves take. On failure of them it shall belong to the mother; or if she be dead, to the father.'" (Coleb. Mit. 373; Stokes, H. L. B. 465.)
Bemakks. — 1. The text of VijilAnesvara quoted refers in the first instance to a maiden who died Sifi,ev her betrothal, but before her marriage. As Baudh&yana's passage contains no such restriction, its rules seem to apply also to a girl who died before her betrothal. So N&rada quoted in the D&ya Krama Sangraha, Chap. II. Sec. !• (Stokes, H. L. B. 487.)
2. Regarding the case of a married sister, see Chap. IT. B. Sec. 7, n. b.
il.— SECTION 2.— THE FATHER. Q. 1. — If a daughter has no relative except her father, will he be her heir?
(a) The uncles and cousins of an unmarried datnsel, daughter of their deceased coparcener, exclude her from inheritance, but are bound to defray her marriage expenses out of the joint estate, 2 Macn. H. L. 47.
502 HEIRS TO FEMALES (mABRIED). [BK.i,ce.iv.BM,<l.l.
A. — Yes.^^Ahmednuggur, January lOth^ 1846. Authority not quoted. Bbmaiuls. — 1. See the preceding case.
2. Regarding the father's sacoession to the estate of a married daughter, $ee Chap. IV. B. Sec 7.
^.—SECTION 3.— THE SISTER.
Q. 1. — Can a sister of a deceased Murali be her heir ?
A. — Yes. — Poona, September 2Srd, 1852.
Authorities. — (1) Vyav. May. p. 140, 1. 1 {see Chap. n. Sec. U I. A. 1, Q. 1 ; (2*) Manu IX. 187 (see Chap. H. Sec. 14 I. B. 6. 1, Q. 1).
Remabk. — The ahove text of Mann, declaring the '' nearest Sapiod^ entitled to inherit," applies in the first instance to the succession to a male's estate. In the Mayukha, p. 159, 1. 5 (Stokes, H. L. B. 105), Ktlakhantha uses it in regard to a female's estate also.
B. — Married.
SECTION 1.— DAUGHTER.
Q. 1 . — A woman of the Kunabl caste died. Her daughter, who was abandoned by her husband, lived with her mother for about six years. Can this daughter be the heir of the deceased mother ?
A. — As there are no other and better heirs, the daughter will be the heir of the deceased. . If the daughter, however, is a notoriously bad character, the Sirkftr should pay the ex- penses of the funeral rites, assign a maintenance to the daughter, and hold the rest in deposit, pending a reform in her character. — Ahmednuggur, January 14th, 1847.
AuTHORiTiEs.-(l) Yyav. May. p. 142, 1. 2; (2) p. 137, 1. 5; (3, p. 156, 1. 5 ; (4) p. 159, 1. 6 ; (6) p. 136, 1. 8 ; (6) p. 162, 1. 1 ; (7) Hit Vyav. f 45, p. 1, 1. 5 ; (8) f. 58, p. 1, 1. 7 ; (9) f. 58, p. 2, 1. 16 ; (10) f. 57, p. 1, 1. 5; (11*) f. 60, p. 1, 1. 13; (12) f. 60, p. 2, 1. 2; (13) f. 60, p. 2, 1. l;(14«)f.48,p. 1,1. 13:—
" It has been declared, that sons may divide the effects after tbe death of their father and mother. The author states an exception in regard to the mother's separate property :— * The daughters share
BK.i,CH.iv.B^.l,q.8.] DAUGHTER* 603
the residue of their mother's property after payment of her debts.' Let the daughters take their mother's effects remaining oyer and above the debts ; that is, the residue after the discharge of the debts contracted by the mother. Hence the purport of the preceding part of the text is, that sons may divide their mother's effects, which are equal to her debts or less than their amount. The meaning is this : a debt incurred by the mother must be discharged by her sons, not by her daughters ; but her daughters shall take her property remaining above her debts." (Colebrooke, Mit. p. 266; Stokes, H. L. B. 383.)
(15) Mit. Vyav. f . 61, p. 1, 1. 16 :—
** In all forms of marriage, if the woman * leave progeny,' that is, if she have issue, her property devolves on her daughters." Cole- brooke, Mit. p. 368 ; Stokes, H. L. B. 461.)
Q. 2. — Who will be the heir of a deceased widow ? her daughter or her husband's illegitimate son ?
A. — A daughter only is entitled to inherit her mother's Strldhana ; an illegitimate son of the deceased widow's husband has no right to it. If the parties concerned be of the Sftdra caste, a daughter and an illegitimate son will be entitled to equal shares of their father's property. If the property is Strldhana, a daughter has a prior and superior right to it. The illegitimate son and the daughter should therefore take equal shares of the property of the deceased.
Ahmednuggur, January 31a^, 1848.
AxTTHORiTiBs.— (1) Yyav. May. p. 99, 1. 1; (2) p. 151, 1. 2; (3) p. 155. 1. 7; (4) p. 156, 1. 6 ; (5) p. 157, 1. 7 ; (6) p. 159, 1. 5 ; (7») Mit. Vyav. f . 48, p. 1, 1. 13 {see Chap. IV. B. Sec 1, Q. 1) ; (8) f. 65, p. 1, 1. 11 {see Chap. II. Sec. 3, Q. 1).
Rbmakk. — The ^Sstri in his last direction treats the property as that of the predeceased husband, and applies to it the construction of Y&j- fiavalkya's text supported by Dev&nda Bhatta in the Dattaka Chan- drikft, Sec. 5, pi. 31 (Stokes, H. L. B. 660).
Q. 3. — A woman died leaving a son by her first and a daughter by her second husband. She had taken no pro- perty belonging to her first husband* The deceased's pro- perty was left in possession of her daughter and son-in-law.
504 HEIBS TO FEMALES — MARRIED. [Bt.i^.iT.B^l,(i.6,
The question is, whether the daughter or the son should be considered the heir ?
A. — If there is no proof that the property in question did not belong to her first husband^ the daughter alone is the heir. — Khandesh, March Aith, 185L
Authorities.— (1) Vyav. May. p. 134, L 4 ; (2*) Mit. Vyav. f. 48, p. 1, 1. 13 {see Chap. IV. B. Sec. 1, Q. 1).
Bemark.— The ^ords '' did not belong ^' are evidently a mistake for " belonged."
Q. 4. — A woman died leaving a daughter and a son of a predeceased daughter. Which of these will be heir of the deceased ?
A, — The grandson is a distant relation. The daughter should be considered the heir of the deceased.
Kkandesh, October 22nd, 1847.
AxTTHORiTiBs.— (1) Vyav. May. p. 134, 1. 4 ; (2*) Mit. Vyav. f. 48, p. 1, 1. 13 {see Chap. IV. B. Sec. 1, Q. 1).
Q. 5. — A woman died. She possessed some waste land. She had had three daughters. The second is alive, the eldest died leaving a son. The youngest died without issue, but her husband is alive. The question is, how the land should be divided among the heirs ?
A. — The land should be equally divided between the daughter's son and the surviving daughter. The husbanrl of the deceased daughter has no right to any part of the property. — 8urat, October I2thy 1857.
Authorities.— (1) Mit. Vyav. f. 66, p. 2, 1. 1 ; (2*) f. 48, p. 1, 1. 13 {see Chap. IV. B. Sec. 1, Q. 1) ; (3) Viramitrodaya, f. 205, p. 2, 1. 2.
Bbmark. — The daughter's son will inherit only in case his mother died after his grandmother. In this case he inherits his mother's share of the grandmother's property. If his mother died before his grand- mother, the surviving daughter of the latter takes the whole.
Bn,CH.iv.B,8.1,q.8.] DAUGHTBB. 605
Q. 6. — A man had two sons. The younger of these died, leamg a widow. The elder subsequently died, leaving a son. The last mentioned died, leaving a widow and a daugh- ter. The widow also died, and the question has arisen, whether the daughter of the deceased or the widow of the younger son who died first should be considered the eldest sod's heir ?
A, — The widow of the last deceased man is his heir, and on her death the right of inheritance devolves on her daugh- ter. The widow of the younger son who died first cannot have any right to inherit the property of her husband's elder brother's son. — Bombay , Sadr Addlat, July SOth, 1857.
AuTHORrriBS.— (1) Mit. Vyar. f . 55, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; (2*) f. 48, p. 1, 1. 13 (see Chap. ly. B. Sec. 1, Q. 1).
Q. 7. — A deceased woman of the SonHra caste has left a daughter and a grandson of her husband's cousin. The daughter incurred the expense of the funeral ceremonies of her mother. The grandson underwent the ceremony of shav- ing his head and actually performed the obsequies. He was separate, but used to keep up a friendly intercourse with the deceased as a relation. Which of the two will be her heir ?
A. — The daughter must be recognized as the heir, her relationship being nearer than that of the grandson.
Khandesh, May ZUt, 1848.
AuTHOMTiES.--(l) Vyav. May. p. 134, 1. 4 ; (2*) Mit. Vyav. f. 48, p. 1, 1. 13 {see Chap. IV. B. Sec. 1, Q. 1).
Q. 8. — A woman died. Her surviving relatives are a daughter who has no issue, and a separated member of the family of her husband. The question is, which of these is the heir ?
A. — The rule is, that when a separated member of a family dies, his wife becomes his heir. In the absence of a wife, his 64 H
506 HETBS TO FEMALES (MABBIED). CBK.i,OH.iY.B,8l,a*10.
daughter is the legal heir. If the daughter, howeyer, is a widow^ and without male issue, she cannot be the heir. The separated member of the family of her husband will be her heir. — Surat^ Fehruwry lOiA, 184(>.
AuTHOMTT.— »Mit. Vyav. f. 48, p. 1, 1. 13 («ee Chap. IV. B. Sec. 1. Q 1).
RsMAaK. — ^The daughter alone is the heir. The MitAkaharA and the May tlkha do not mention harrenness as an impediment to a daaghter*s inheriting. The Snrat ^Astri seems here, as in some other instances, to have giyen Bengal law. {See DAyahhAga, Chap. XI. Sec. 2.)
Q. 9. — Ay a man, and B, his son, lived separate. When B died, his son C inherited his property. When C died, 2), the widow of B, inherited her son's property. D died leav- ing two married daughters. A^ the father-in-law of 2), is alive. The question is, who has the right of inheriting the property oiDI
A, — As A, the father-in-law of D, was separate from B, the husband of D, the daughters are the legsd heirs, (a) Bombay i 8adr Addlat, Augiist 6th, 1849.
AuTHOKrriES.— (1) Mit. Vyav. f. 61, p. 1, 1. 16 («eeChap. IV. B. Sec. 1, Q. 1) ; (2) f. 45, p. 1, 1. 5 ; (3) f. 65, p. 2, 1. 1 ; (4*) f. 48, p. 1, 1. 13 (s6€ Chap. IV. B. Sec. 1, Q. 1).
Q, 10. — ^It cannot be ascertained whether the husband and brother-in-law of a woman were separate or united in inter- ests. It cannot also be ascertained whether, after the death of her husband, the woman was supported by her father-in- law or brother-in-law. Will tho daughter or the brother- in-law of the woman, under these circumstances, inherit the property acquired by tho woman ?
A. — When two uterine brothers are separate, and one of them dies, his widow will become his heir, and after the widow's death her daughter. The daughter alone can inherit the property acquired by the woman alluded to in the
(a) This case illustrates pp. 328, 332, 336, 338.
BK.i,cH.iv.B,9.1,q.l2.] DAUQHTEE. 607
qaestion. The brother-in-law, whether separate or other- wise, can have no right to it. — Sural, January 25th, 1845.
AuTHOKiTiES.— (1) Vyav. May. p. 137, 1. 5 ; (2) p. 167, 1. 3 {see Auth. 3) ; (3*)Mit. Vyav. f. 61, p. 1, 1. 16 (see Chap. IV. B. Sec. 1, Q. 1).
Rbmask. — A sum of money, on the death of her husband, was given to a widow by his undivided brother in lieu of maintenance. With this she bought land. It was held that the property was her own absolutely, and being disposable inter vivos at her pleasure, could be equally disposed of by her will, (a) See above, pp. 181, 219, 315, and also Book II, Introduction, ' Partition between Bbothbes.'
Q. 11. — Can a daughter inherit all her mother's property or only her Stridhana ?
A. — If the mother should have no son, the daughter will be her sole heir ; but if the mother has a son, the daughter can inherit only her '* Stridhana." The rest will pass into the hands of her sons. — Dhanvar, 1845.
AuTHORiTT.— *Mit. Vyav. f . 48, p. 1, 1. 13 (see Chap. IV. B. Sec. 1,
Ql).
Rem ABK. — ^The d&stri seems to have intended to express the Ma- yilkha doctrine. (See Introduction to Book I. p. 146.)
Q. 12. — A woman died. Ker husband had a Vatan. She has two daughters, one of whom has some children and the other has none. There are distant relations of the husband. The question is, whether the husband's relations or the daughter of the deceased woman has a right to inherit the Vatan?
Should a custom prevalent in a family or caste be respected, when it is inconsistent with the law of inheritance laid down in the Sastra ?
A. — In the above case it appears that the wife inherited her husband's property. On her death her daughter be- comes the heir.
(a) Nellaikumara Chetty v. Marahathammal, I. L. R. 1 Mad. 166» referring to Doorga Daye et al v. Po(yrun Baye et aZ, 5 C. W. B. 141 C. R., and to Bajah Chandra/ncUh Boy v. Ramjai Mazumdar, 6 B. L. R. 303.
508 HEIBS TO FEMALES (mAEBIED). [BK.i,CH.iT.B^.l,q.l8.
If a cnstom bas uniformly and for a long time been respect- ed by a family or caste, and if the observance of it ia not prejadicial to the rights of any individual, or contrary to re- ligion or morality, it may continue to be respected.
Bombay, 8adr Addlat, May 17th, 1847.
AuTHORrnM.— (1) Vyav. May. p. 134, 1. 4; (2) p. 137, 1. 4; (3) p. 7, 1. 1 (see Cbap. II. Sec. 13, Q. 9) ; (4) Mit. AohAra, f. 52, 1. 1, p. 13 {see Auth. 3) ; (5) Vtramitrodaya, f. 9, p. 2, 1. 6 (tee Auth. 3) ; (6*) Mit. Vyav. f. 48, p. 1, 1. 13, and f. 62, p. 1, 1. 16 {see Cb^. IV. B. See. 1, Q. I).
Remark. — It is obvious that the rights of the individoal must themselves depend on the custom in so far as the custom is hinding. See above, p. 155, Sec. 6. As to the conditions of a good custom, see Mathura Naikin v. Esu Naikin. (a)
Q. 13. — A man of the V&ni caste died. His wife also died shortly after him, leaving a daughter-in-law who was a widow, and three daughters, two of whom were young and unmarried, and consequently under the protection of the daughter-in-law. The last mentioned has applied for a cer- tificate of heirship to the decetised, and the question is, whe- ther the two daughters have a right to any portion of the property of their mother, or whether the whole should be made over to the daughter-in-law alone ?
A* — The daughter-in-law is the heir to all the property left by her mother-in-law. If the mother-in-law should have any property which can be called her ''Stridhana" the daughters would be entitled to it. Those daughters who are unmarried will have a superior claim to it. Out of this property these daughters must be maintained and married, and the remainder, if any, should be equally divided among the married and the unmarried.
Ahmedniiggur, October 2l8t, 1851.
AuTHORirnBS.— (1*) Mit. Vyay. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q- 4); (2) Vyav. May. p. 134, 1. 4 (see Auth. 1) ; (3) p. 137, 1. 5 ; (4) p. 151,1. 1; (5) p. 159,1. 5; (6)p. 156,1. 5; (7) Vyav. May. p.157,1.3.-
(a) I. L. R. 4 Bom. 545, 571.
K.T,CH.Tv.B,9.2,q.l .] GEAND-DATTGHTEE. 609
" These distinctions are declared by Gftntama :— *A woman's pro- perty goes to her daughters, unmarried or unprovided.' " (Borradaile, p. 125 ; Stokes, H. L. B. 103).
BsHiLBKS.— 1 . The Sistri's answer is right only if the son died after his father, since in this case only his widow (the daughter-in-law of the question) would inherit his property.
2. K the son died before his father, his rights revert to the latter, (a) After the father's deaths his widow inherits the property, and from her, her daughters. See above, pp. 146, 150, 324.
Q. 14. — A Lingayat woman died. Her step-son has lived separate from her for the last 20 years, and her daughter is a married woman. Which of these will be her heir ?
A. — The daughter will inherit her mother's Stridhana, and the son will inherit such property of his father as may have remained in the possession of the deceased. Dharwar, August 6th, 1851.
AuTHOBiTiES.— (1) Vyav. May. p. 83, 1. 7 ; (2) p. 158, 1. 4; (3*) Mit. Vyav. f. 48, p. 1, 1. 13 (see Chap. IV. B. Sec. 1, Q. 1).
Remark. — The 6&stri, as in answer to Q. 11, intends to give the Mayflkha doctrine. {See Borradaile, 126; Stokes, H. L. B. 104.)
B.— SECTION 2.— GRAND-DAUGHTER.
Q, 1, — There are two relatives of a deceased woman. The one is her daughter's daughter, and the other her husband's brother's daughter. Which of these should succeed to the deceased's property ?
A. — The daughter's daughter is the heir to the property. Dharwar, December 24ith, 1847.
Authorities. — (1) Viramitrodaya, f. 217, p. 1, 1. 15 ; (2) Mit. Vyav. f. 61, p. 2, L 6:—
" On failare of daughters, her grand-daughters in the female line take the succession under this text ; ' if she leave progeny, it goes to her (daughter's) daughters.*" (Colebrooke, Mit. p. 369; Stokes, H. L. B. 462.)
(a) See Uddram Sitdrdm v. Rdnu Pdndujee et al, 11 Bom. H. C B. 76.
510 HEIBS TO FEMALES (mARBIED). [bk.i,ch.iy.b,8.8,^.
B.— SECTION 3.— DAUGHTER'S SON.
Q. 1. — ^A woman who held a Eulakarani Vatan did. There are her relations of ten days^ (a) and a son of her daughter. Which of these shoold succeed to the Vatan ?
A. — ^There is an order of heirs laid down in the S4stras in the case of persons who^ having separated themselves fronij^ and not having reunited with, the other members of a family, have died without male issue. The order commences with wife, who is followed by other relatives having a right to succeed one after another. The Sastra also declares that all the heirs of a man living and about to come into life expect to inherit his Vatan, and that no man should there- fore alienate it to his family's prejudice. From these, it appears that the daughter's son should inherit all the pro- perty of the deceased, except the Vatan, which should be given to the (nearest) relations of the same Gotra as the deceased. — Khandeah, October 5th, 1853.
Authorities.— (1) Vyav. May. p. 134, 1. 4 (see Auth. 3.) ; (2) p. 196, 1. 3 ; (3) Mit. Vyav. f. 56, p. 2, L 1 (see Chap. 1, Sec. 2, Q. 4); (4*)Mit. Vyav. f. 61. p. 2, 1.7:—
" On failure of daughter's daughters, the daughter's sons are entitled to the succession. Thus N&radasays: ' Let daughters divide their mother's wealth ; or on failure of daughters, their male issue.* For the pronoun refers to the contiguous term 'daughters.'" (Cole- brooke, Mit. p. 370 ; Stokes, H. L. B. 462.)
Remark. — ^The decision as to the Vatan is based on the supposition that the Vatan is not Stridhana, or separate property subject to the ordinary rules of descent. But see Chap. I. Sec. 2, Q. 5, and Chap- n. Sec. 8, Q. 1.
(a) Ten days here show the duration of the mourning and the impurity supposed to result from the death of a relation. The more remote the relationship, the less is the duration. Hence relations are called in Marathi according to their various degrees, as of ten days, three days, one day, or of ablution (Sapindas).
Bft.Mm.IT.B,8.4,Q.2.] SONS. 511
B.— SECTION 4.— SONS.
Q, 1, — A woman died. Her husband and son have sur- vived her. Which of these is her heir ? And who has a right to inherit her Palu ?
Supposing the husband has a right to inherit her Palu, will his right be destroyed, because the Palu has been applied towards the purchase of some property, and because the deed of purchase sets forth that the property purchased was in- tended for the benefit of the woman's children ?
A. — It is not mentioned in the question whether the woman had obtained her Palu from her husband or from her father, or whether it was earned by her by following any particular trade. It is not also stated whether the deceased woman has any daughter.
The son of a deceased woman has a right to inherit all the property of his mother. When a woman has children, her husband has no right to her property. In the absence of a daughter, a son has a right to inherit her Palu. Though the Palu has been applied towards purchasing some property, the husband can have no claim on it. Suraty June 14^%, 1848.
Authorities.— (1) Mit. Vyav. f. 48, p. 1, 1. 14 {see Chap. II. Sec. 14 I. A. 1, Q. 3) ; (2) Vyav. May. p. 156. 1. 1 ; (3*) Mit. Vyav. f. 61, p. 2, 1.9:—
" If there be no grandsons in the female line, sons take the pro- perty ; for it has already heen declared the (male) issue succeeds in their default." (Colebrooke, Mit. p. 370; Stokes, H. L. B. 462.)
Q. 2. — A woman received a house from her father. She had two sons. One of them died, leaving a widow. The mother died after the death of her son. The question is, whether the surviving son or the daughter-in-law should inherit the house given to the woman by her father ?
. A. — The son, and not the daughter-in-law, has the right to inherit the property of his maternal grandfather. Sural Addlai, June 7ih, 1827.
512 HEIBS TO FEMALES (maBRTBD). ['bk.i,ch.iv.b^4,q.5.
Authorities.— (1) Mit. Vyav. f . 65, p. 2, 1. 1; (2) f. 61, p. 2,L9 (#66 Chap. IV. B. Sec. 4, Q. 1).
Eescark.-— The son inherits the property as heir of his mother, nofc as heir of his maternal grandfather.
Q. 3. — ^A woman of the Sftdra caste died. One of her sons is in jail undergoing the sentence of imprisonment for life. The other died, leaving a son. The question is, whether the grandson or the son is the heir to the woman's property?
A. — The grandson, as well as the son, has a right to in- herit the property. — Poona, May \Zth, 1851.
AuTHORrrres.— (1) [Vyav. May. p. 90, 1. 2]; (2*) Mit. Vyav. f.61, p. 2, 1. 9 {see Chap. IV. B. Sec. 4, Q. 1).
Remark. — If the grandson's father died before his mother, the grandson cannot inherit, as grandsons inherit their mother's Strt- dhana on failure of sons only.
Q. 4. — A man died, and his property was taken possession of by his mother. After the death of the mother, her daughter came into possession of the property. On the death of the daughter, her son assumed the possession. He is now sued by a separated cousin of the original proprietor for the recovery of the property, and the question is, whether it should be made over to him ?
A, — ^The several successions described in the question appear to be legal, and the possession of the grandson can- not be disturbed. — Butnagherry, September 3rd, 1855.
AuTHORiTiBS.— (1) Vyav. May. p. 134, 1. 4; (2) [p. 151,1. 2]; (3) p. 167, 1. 3 ; (4) Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I. Sec. 2, Q. 4); (5) f. 61, p. 1, 1. 16 (we Chap. FV. B. Sec. 1, Q. 1) ; (6*) f. 61, p. 2, 1. 9 («ea Chap. IV. B. Sec. 4, Q. 1).
Q. 5. — A married a woman, B, who had been previously married, and who brought to his house the son 0, whom she had borne to her first husband. A died without having either a son or a daughter bom of his marriage with B, On his death, his wife B inherited his property. After .B's death,
iiK.i,cH.tv.B,g.5,q.l.] HUSBAND. 513
will the property of A pass to his blood relations, or to C, the son of B by her first hasband f
A. — If A died without issue, his widow B was his heir, and any property, which she inherited from A, became her Stridhana. As she had neither a son nor a daughter by A, and had a son by her former husband, this son will be her heir, and on her death will succeed to the property of which she may die possessed, in preference to any relatives of her husband A, — Broach, September llth, 1861.
AuTHORrriES.— (1) [Mit. Vyav. f . 60, p. 2, 1. 16] ; (2*) f. 61, p. 2, 1. 9 {see Chap. IV. B. Sec. 4, Q. 1).
Remark. — See above pp. 149, 324, 331 ; but also pp. 334, 88. A step-sou has, as such, no right of succession to his step-father's property, (a) He can claim only maintenance.
Q. 6.^A woman of the Marflth& caste adopted a son. The witnesses have proved the fact. Can the adopted son be legal heir to the property of the deceased ?
A, — It having been proved that the adoption was solemniz- ed with due ceremonies, the adopted son is the proper heir. — Rutnagherry, September 26th, 1846.
Authority not quoted.
Remark. — There is no special authority to show that the adopted son inherits his adoptive mother's Strtdhana. It follows from his occupying in all respects the position of a son where there is not one by birth.
JB.— SECTION 5.~HUSBA.ND.
Q. 1 . — A woman died. Her husband lived with his father as a member of an undivided family. His age was about 19 years. Is he or his father entitled to receive the " Palu'' of the deceased woman ?
A. — If the deceased has left no children, her husband has the right to receive her '' FaXxx."—8urat, March 28th, 1848.
(a) Comp. Tupper, Paiij. Cust. L. Vol. II. p. 150. It is as heir to his mother's estate that he is entitled. As to the quantum of this estate see Brij Indar^s case, L. R. 5 I. A. at p. 14. 05 u
614 HEIRS TO FBMALKS (mABEIED.) CBK.i^H.iYB,8.6,qJ,
AuTHOKiTY.--(l) Mit. Vyav. f. 61, p. 1, 1. 12 .—
" The property of a childless woman married in the form denomi- nated Bii^hma, or in any of the four (nnblamed modes of marriage), goes to her husband ; but if she leave progeny, it will go to her (daughter's) daughters ; and in other forms of marriage (as the Asora, &o.) it goes to her father (and mother on failure of her own issue)."
** Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Br&hma, Daiva, Arsha, Pr&j4patya, the (whole) property, as before described, belongs in the first place to her husband." (Colebrooke, Mit. p. 868; Stokes, H. L. B. 460.)
Remark. — According to Manu, whose view is adopted in the Vya?. May., the property of a woman married according to the Gandharva form of marriage, goes likewise to the husband. The reason is that Manu and others consider the G&udharva rite as lawful for the Eshat- riya. (a) As to the Bengal law of inheritance to Stridhana, see JW- doonath Sircar v. Buaaunt Coomar Roy (ft).
Q. 2. — A woman received certain property from her father at or after the time of her marriage. She is now dead. Who is entitled to this property, her husband or her rela- tions on the side of her father ?
A. — The property which may have been granted to the woman by her father on the occasion of her marriage or afterwards, must be considered her Strldhana. After her death, her children are entitled to inherit it. If she has no children, her husband will be her heir. Her father has no right whatever to such property. Broach, February \2th, 1852.
AuTHOKTtY.— Mit. Vyav. f. 61, p. 1, 1. 12 (we Chap. IV. B. Sec. 5, Q. 1).
Behark. — Similarly ruled in Judoonath Sircar v. Bussunt Coomar Roy, (c) and Bistoo Pershad v. Rddha Soondemath. {d)
(a) See May. Borr. p. 178; Stokes, H. L. B. 106. (6) 11 B. L. R. 286, 295, S. C. 19 0. W. B. 264, which over-rules the decision at 16 C. W. R. 105.
(c) Supra,
(d) 16 C. W.B.I 15.
Bi.i,cH.iv.B,8.5,q.5.] HUSBAND. 615
Q. 3. — A woman received some property, consisting of a hoase and other things, from her father. She has neither a son nor a daughter. In case of her death, can her " Pat'* husband inherit her property ?
A, — By the custom of the caste, the *^Pat'' husband is the heir. — 8<iir Addtatj April 2nd, 1852.
AuTHOEiTiBS.— (1) Mit. Vyav. f. 61, p. 1, 1. 12 {see Chap. IV. B. Sec. 6, Q. 1) ; (2) f. 61, p. 1, 1. 10 ; (3) Mit. Ach4ra, f . 8, p. 1, 1. 8 ; (4) Vyav. May. p. 160, 1. 2 ; (6) Nirnayasindhu, p. 203, 1. 26.
Remark. — As re-marriages of widows have been legalized by Act XV. 1856, the deoision seems in accordance with the present law.
Q. 4. — A woman, leaving her husband, lived with a man, from whom she obtained some ornaments. On her death the authorities seized her property, and treated it as heirless. A creditor, who holds a decree against her husband, attached the ornaments. The question has therefore arisen, whether the ornaments should be held liable for her husband^s debts, or restored to the man who originally presented them to her, or considered as heirless property ?
A. — As the ornaments are not the property of the woman's husband, his creditor cannot attach them. If the woman lived and died as a faithful concubine of the man who pre- sented her with the ornaments, he will inherit her property. If the woman died ad a public prostitute, the Sirkar may spend a suitable sum for her funeral rites, and take the rest as heirless property. — Ahmednuggur, November Ist, 1848.
AuTHORrriES.— (1) Vyav. May. p. 236, 1. 4 ; (2) p. 199. 1. 4 ; (3) p. 200, L 3 and 7 ; (4) p. 202, 1. 17 ; (6) p. 24, 1. 1 ; (6) Mit. Ach&ra, f. 16, p. 1, 1. 13 ; (7) Mit. Vyav. f. 68, p. 2, 1. 16 ; (8) f . 60, p. 2. 1. 12 ; (9) f. 57, p. 1, 1. 6 ; (10) f. 61, p. 1, 1. 12 {see Chap. IV. B. Sec. 6, Q. 1).
Bemabk. — If the ornaments were the property of the deceased, and her husband had not been divorced from her, he will be her heir, and donseqnently his creditors may attach them.
Q. 5. — A Kunabi kept a woman in his house. Her hus- band was then alive. The Kunabi gave her some ornaments.
516 HEIRS TO FEMALES (mAREIEP.) [BK.i,CH:iv.B,s.5,qC.
a nose ring^ &c. She died, and the question is, who is the heir to her ornaments ?
A, — The Kunabl is the heir to the woman^s ornaments, even though they may have been given to her as a present or as a token of his affection ; for the heir of a slave is her master. If they were granted merely for her use, his right to them cannot be considered to have ceased.
Ahmcdnuggiir, February 17th, 1847.
AoTuoRiTiES.— (1) Vyav. May. p. 152, I. 8; (2) p. 153, 1. 8; (3) p. 202, 1. 7.
Bemabrs — 1. According to the Hindu Law, the woman, who com- mits herself into the keeping of a man, becomes his slave (see Vyav. May. p. 171, Borradaile ; Stokes, H. L. B. 137, and above Chap. II. Sec. 3, Q. 12), and gifts made to her revert at her death to her master. But as any title to property based on slavery is abolished by Act V. of 1843, the property of the woman will, if she was not divorced from her husband, fall to the latter.
2. The acceptance of property earned by a wife by prostitation would be sinful on the part of the husband. But the sin may be ex- piated by penance, and cases, where this actually has been done, are said to have occurred only recently.
Q. 6. — A woman of the Simpt (Tailor) caste, having lived the life of a prostitute, died during the absence of her hus- band. Her husband's brother has applied for the property of the deceased. Can he get it ?
A. — If the deceased woman had acquired her property by prostitution, and if she was out of the caste, her husband's brother can have no right to it. If the property in her possession belongs io her absent husband, his brother can- not claim it while he is alive. After his death, his brother can inherit it. — Poona, December 17th, 1859.
AuTnoRiTY.— Mit. Vyav. f 61, p. 1, 1. 12 {see Chap. IV. B. Sec. 5,Q. 1).
Remark. — The property acquired by the woman belongs to her hus- band. Sec preceding cases.
BK.i,CH.iv.B,8.6.] THE husband's SAPINDAS. 517
B.— SECTION 6.— THE HUSBAND'S SAPINDAS.
Introductory Eemarks.
1. The same discrepancy which prevails between the Mit^ksharft and the Maytikha in regard to the definition of Stridhana, or * woman's property,' shows itself again in the rules on the succession to this kind of property, and the difficulties arising herefrom are considerably increased by the circumstance that the Viramitrodaya also departs from the line laid down by the Mit&kshara.
2. Vi jn&nesvara, who declares every kind of property acquired by a woman by any of the recognised modes of acquisition to be Stri- dhana, (a) gives the simple rule (b) that the property of a childless wife goes, if she was married according to the Brahma, Daiva, Arsha, or Praj&patya rites, to her husband, and on failure of him, * to his nearest Sapindas.* If she was married according to the Asura, G&ndharva, Rakshasa, or Paisdcha rites, it goes to her mother, her father, and their nearest Sapindas successively. The latter part of this rule has no immediate interest, as no case, in which the inheritance to a woman married according to the last four rites, was disputed, occurs amongst the Questions which follow, (c)
It will therefore only be necessary to consider the first part of the rule. According to the passage from the Ach&rak&nda of the Mit4kshar&, quoted in the Introduction pp. 120, 121, supi'a, it appears that the term *Sapirida' includes, on the father's side, all blood relations within six degrees, together with the wives of the males, and on the mother's side, those within four degrees. As regards the expression tat pratydsanndtidm, * to his nearest,' Mi- tramisra in the Viramitrodaya, {d) and Kamal&kara in the Yivdda- tSndava both explain it to mean, ** the Sapindas of the husband succeed according to the degree of their nearness to him."
(a) Colebrooke, Mit. Chap. II. Sec. 11, cl. 2 ff. (See above, In- trod. Sec. 11, pp. 265 ss.)
(5) Ihid, cl. 11 and 25.
(c) fifee the case of Vijiarangam v. Lakshaman, 8 Bom. H. C. R. S^^ 0. C. J : — " The husband's nearest kinsman is heir to a woman's se- parate property." (Coleb. in 2 Str. H. L. 412.)
(<i) Yframitrodaya, f. 219, p. 1, 1. 3 :— " On failure of him (the hus- band) the succession goes to the husband's nearest (Sapindas). For, as it is by the husband that the nearness to the possessor is barred, the nearness to the husband must be made the principal consideration." See Transl. p. 240.
518 HEIRS TO FEMALES (mABEIED.) [bi.i,ch.iv.b,8.6.
Moreover, ICamal&kara is of the opinion that the ' nearness ' is to be determined by the rule given in the Mit&kshar& (a) in regard to the saccession to the property of a male who died without male descend- ants, and that, consequently, first» the wife, i.e. the rival wife of the deceased, succeeds; next, the daughter, i.e. the deceased*s step- daughter ; thirdly, the deceased's step-daughter's son ; fourthly, the husband's mother, and so on.
This opinion seems to be based on the consideration that, as the Sapindas inherit only through the husband, they virtually succeed to property coming from him, and that consequently they must inherit in the order prescribed for the succession to a male's estate. Against this it may indeed be urged, that the word ' praty&sanna,' * nearest,' if employed in regard to persons generally, has the sense of * nearest by relationship,' and that the list of heirs to a man without male descendants is not made solely with regard to nearness by relationship, since, for instance, it places the daughter's son before the parents and brothers, though he is further removed than the former, and not nearer related than the latter. If the objection be admitted, we should take the word * praty&sanna' in its first sense, and assume that VijS&nesvara really intends ' nearness by relation- ship' to be the principle regulating the succession of the Sapindas.
On this interpretation the heirs of childless widows in the first instance would be those kinsmen related to the husband in the first degree, i.e. rival wives of deceased, their offspring, and the husband's parents, all inheriting together ; next the kinsmen related to the husband in the second degree, as the husband's brothers, deceased's step-children's children, &c., and so on to the sixth degree inclasive. (See Bk. I. Chap. IV. B. Sec. 6 II. c, Q. 2.) But the identity of the wife with her husband being accepted as a leading principle of the Mitak- shara, the rule seems on the whole most consonant to it, whereby precedence, in heritable relation to him, gives a like precedence, and order of succession in relation to his widow. Such appears to be the rule too which custom has preferred in this part of India.
3. In opposition to these doctrines, Ntlakantha in the Maydkha makes a two-fold division of the Stridhana of a childless woman (b) —I. into pdribhdshika ' Stridhana proper ' as defined by the texts of Manu, K&tyftyana, and others, i.e. property presented at the time of marriage (yautaka), and subsequent presents of the relations
(a) Colebrooke, Mit. Chap. II. Sec. 1, cl. 2 ; Stokes, H. L. B. 427. (h) See Borradaile, May. Chap. IV. Sec. 10, cl. 26 and 27; Stokes, H. L. B. 105.
BK.i,CB.iY.B,8.6.] THK husband's SAPINDAS. 519
{anvddheya), and of the husband {pritidatta) ; and II, into pdrihhd- shikdtvriktavihhdgakartmiddilahdha, Stridhana other than Stridhana proper, acquired by division and the like, i.e* property acquired by division, inheritance, or any of the other recognised modes of acquisi- tion. For each kind he gives a different order of heirs ; I, * Stridhana proper ' goes (a) if the woman was married according to the Br&hma, Arsha, Pr&j&patya, Daiva, or Gr&ndharva rites, to the husband, and (b) if she was married according to the Asura, R&kshasa, or Fai^acha rites, to her parents, (a) The next heirs after the husband and the parents are in either case (5) 1, the widow's sister's son; 2, the husband's sister's son; 3, the husband's brother's son ; 4, the widow's brother's son ; 5f the son-in-law ; 6, and the husband's younger brother. After these * the woman's Sapindas in the husband's family according to the degree of their nearness to her through him,' (c) inherit if she was married according to one of the five first mentioned rites. If she was married according to one of the last mentioned three rites, her father's Sapindas succeed, (d) II, ' Froperty other than Stridhana proper,' devolves, according to the rules which are given for the descent of a separated male's property, on the sons, son's sons, &c. (e) See Stokes, H. L. B. 106.
4. As the Mit&kshar& is the highest authority in this Presidency, the subjoined questions have been mainly arranged according to the principle laid down in that work. There occurs, however, one devia- tion from it. The Sapindas have been divided into Sagotra or Go-
(a) /Sfee Borradaile, May. Chap. lY. Sec. 10, cl. 28,29; Stokes, H. L. B. 105-6.
(h) Borradaile, ibid, cl. 30; Stokes, H. L. B. 106. See also Stokes, H. L. B. 499. The Smj*iti Chandrikft, distinguishing between the constituents of Class I. and those of Class II. assigns the yauiaka to the unmarried daughters alone in equal shares. The anvddheya and the pritidatta it assigns in equal shares to sons and daughters. The second class it assigns in equal shares to the unmarried daughters and the married ones, who are indigent. {See Smriti Chandrika, Chap. IX. S. 3.)
(c) Borradaile, ibid, cl. 28 ; Stokes, H. L. B. 105.
(d) The Smriti Chandrik&, 1. c. para. 30, quotes K&ty&yana, to the effect that gifts from kinsmen go only on failure of kinsmen to the husband. In case of an Asura marriage, the kinsmen who actually gave, Dev&nda Bha^ta says, take back their property. The Sulka goes in every case to the uterine brothers, Mit. Chap. II. Sec. 11, p. 14;Stoke8, H. L. B. 461.
(e) Borradaile, May. ibid. cl. 26 ; Stokes, H. L. B. 105. See above, Introd. p. 150.
520 HtlIRS TO FEMALES (MARBIEd), [BK.i,cH.iv.M.6t,(i.2.
trajas, i.e. those belonging to the same family as the husband, bearing the same name ; and Bhinnagotras, i.e. those belonging to a different family, and the former, as a body, have been placed before the latter. The opinion that the Sagotras inherit before the Bhinnagotras» seems to have been held by most of the ^Astris also, who wrote the follow- iiig Vyavasth&s» and was shared by the Law Officer who assisted in the compilation of the Digest. It is based on the principle which prevails in the case of a male's property, namely, that no property should be allowed to pass out of the family through inheritance, as long as a single member of the family survives. Though the Mit&k- shard does not expressly state that this principle holds good in the case of Strtdhana also, this may be inferred, not only from the general consideration that Hindti lawyers regard the family connected by name as a closely united whole, but especially also from the circum- stance, that according to the Mit&kshar& the sonless husband's property merges on his death in the Stridhana. In accordance with these prin- ciples, the questions referring to the rights of Sapindas in general have been placed first (Sec. 6, I); next come those referring to the rights of Gotraja-Sapindas (Sec. 6, II.); and lastly those referring to the Bhinnagotra-Sapindas (Sec. 6, III.). Both the Ootrajas and Bhin- nagotras have been arranged according to the degree of the nearness of their relationships.
B.— SECTION 6.— THE HUSBAND'S SAPINDAS. I. — Sapindas in General.
Q. 1. — A widow died. A relation claims to be her heir. He is the sixth descendant, while the widow's husband was the fifth descendant from one and the same ancestor. Should ho be declared her heir ?
A, — ^Yes. — Tanna, February 16th, 1847.
Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 ; (2) f. 68, p. 2, 1 16; (3)f. 61,p. 1, 1. 14:—
" On failure of him (the husband) it (the woman's property) goes to his nearest kinsmen (Sapindas) allied by funeral oblations." (Cole- brook, Mit. p. 368; Stokes, H. L. B. 461.)
Q. 2. — A man claims to be the heir of a deceased woman. He appears to be her husband's relation by consanguinity. Can he be her heir ?
M.i,cfl.iv.B,8.6ua,q.l.] SAPINDAS — STBP-SON» 521
J..— ^As the man belongs to the same family he will be the heir of the deceased. — Ahmednuggur, November 27th, 1848.
Authorities. — (1) Vyav. May. p. 169, 1. 3 {see Auth. 6) ; (2) p. 151, 1. 7; (3) p. 142, 1. 8; (4) p. 18l, 1. 5 ; (5*) Mit. Vyav. f. 61, p. 1, 1. U {$6e Chap. lY. B. Sec. C I. Q. 1).
BE3CA.RK. — Provided that the claimatit, if a Gotraja, is related to the deceased's husband within the sixth degree; or if a Bhinnagotra- Sapin<}a, within the fourth degree.
Q. 3. — A widow of the Prabha caste lived with her brother, who not only aflForded her maintenance bat defrayed the expenses of her pilgrimages. She inherited no property from her husband. So situated the woman died, and the question is, whether her brother or the relatives of her husband are entitled to her property ?
J..— As the woman did not inherit any property from her husband, and as she lived under the protection of her brother, the latter is the heir.
AhmednugguTj Felmiary litht 1850.
AuTHOKiTY. — Vyav. May. p. 169, 1. 2.
Remarks.— 1. According to the Mit&kshanl Vyav. f. 61, p. 1, 1. 14, the husband's Sapinda relations are the heirs. (See Chap. IV. B. Section 6 I. Q. 1.)
2. According to the MayAkha, the property would fall to her brother only if she was married by one of the three blameable rites. (See Introductory Remarks, cl. 3.) (a)
II. Husband's Sagotba Sapinpas. a.— STEP-SON.
Q. 1 , — ^Will a man inherit the property of his step-mother ?
A. — If the step-mother has neither a daughter nor a son, her step-son will be her heir.
Ahmednuggur, July SOth, 1846.
AuTHOWTY.— *Mit. Vyav. f . 61, p. 1, 1. 14 (»ee Chap. IV. B. Sec. 6LQ. 1).
(a) This would not generally occur or be presumed except in a caste in which the purchase of wives is recognized. See Vijiarangam V. Lakehman, 8 Bom. H. C. R. 2U 0. C. J. 60U
522 dBtRS TO FEHALBS (itAEBtfiD)^ [M.i,cB.iT.B^ii^<)i.
RBMARK.^The 8tep-8on cannot take before the hnsband. "He takes the property on failnife of offspring, hunband, and the like." (Smriti Chandriki, Chap. IX. S. 3, p. 38.)
Q. 2. — A wife, having been abandoned by her husband, became a Murall, (a) and adopted a son. Will this adopted don Of the son of the second wife of her hosband be her heir?
il.-^The son of her husband's second wife is her heir. Poona, June 28rd, 1846.
Authority not quoted.
Ebmabks.— 1. The answer is correct. For though abandoned by her husband the Mural! remains his wife. The second wife's son is therefore entitled to receive her property as Sapin<ja relation of her husband. The adoption made by her was null.
2. When a person has more than one wife, and when one of them has a son» the other cannot adopt. The object of the dftstra is to create, by adoption, an heir to the husband, and not to the wife, except inci- dentally.
3. See the authorities of the preceding Question.
II. 6.— THE HUSBAND'S MOTHER. Q. 1.— Cana mother-in-law inherit her daughter-in-law's property f A.—Ye&.^Poma, October 26t1h 1858.
AuTHORiTiBS.— (1) Vyav. May. p. 140, 1. 1 (dee Chap. II. Sec 14 L A. 1, Q. 1) ; (2) p. 160, L 4 ; (3») Mit. Vyav. f. 61, p. 1, 1. 14 {»e6 Chap. IV. B. Sec. 6 I. Q. 1).
Q. 2. — A man had two wives. Each of them had a son and a daughter-in-law. The elder wife and her son died first. The man also died afterwards. His death was followed by the death of his son bom by the younger wife. His widow, under a decree of the Civil Court, obtained possession of the property of the family. When the daughter-in-law died, the property passed into the hands of the mother-in-law.
(a) A Murali is a woman nominally devoted to the worship of Khandob&, but really a beggar, singer, and prostitute.
iK.i,CH.iv.B,8.6icc,q.l.] husband's MOTHEE — FELLOW WIDOW 523
The daughter-in-law of the elder wife has sued the step- mother-in-law for possession of the property. The ques- tion is^ who is the nearer heir of the daughter-in-law of the man's younger wife f
A, — The nearer heir is the younger wife of the man. The elder wife'ft daughter-in-law must be considered as a some- what distant relation^-^jRu^T^o^Wr^^ June 2&thy 1852.
AwrHGRTHEs.— (1) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1) ; (2) p. 83, 1. 3; (3) p. 134, 1. 4 ; (4) Mit. Vyav. f. 61, p. 1, 1 14 {see Chap. IV. B. Sec. 6 I. Q. 1).
Behirie^.— 1. The authorities quoted hy the S&stri refer to the snccession to the estate of a male.
2. The mother-in-law is related to the deceased daughter-in-law's husband in the first degree^ the elder wif^^s daughter-in-law in the third.
Q. 3. — A woman of the Velni oaste died. She has two mothers-in-law^ one direct^ and the other a step-mother-in- law. Which of these is the heir of the deceased ?
A. — As the direct raother-in-law of the deceased had brought up and protected her husband, she will be her heir. In the absence of the mother of the husband, the step- mother will have the right to inherit the property of the deceased. — 4hmedabad, OeUAer 22nd, 1859.
AuTHowrnss.— (1) Mit. Vyav. f. 55, p. 2 J. 1 ; (2*) f. 61. p. 1, L 14 (see Chap. IV. B, Sec. 6 1. Q. 1) ; (3») Yyav. May. p. 140. 1. 1 {see Chap. II. Sec. 14 I. A. 1,'Q. 1).
RBMA.RKS.— (1) The authorities quoted by the fiAstri refer to the BQocession to a male's estate.
2. The answer nevertheless seems correct, as the mother is more nearly related to her son than the step-mother.
II. 0.— FELLOW-WIDOW.
Q, I. — A property was equally divided between an aunt and her nephew. When the latter died his two widows divided his share between them. One of these widows is
524 HEIRS TO FEMALE8 (mABRIEd). [bk.i,ch.iv.b,s.6iic,(i.1
dead^ and the qaestion is, who should take her share as heir, the other widow or the aunt ?
A. — The other widow, and not the aunt.
Ahnednuggur, July I7th, 1846.
AuTHORiTiBS.— (!•) Vyav. May. p. UO, 1. 1 (see Chap. II. Sec. 14 L A. 1, Q. 1) ; (2*) Mit. Vyav. f. 61, p. 1, 1. U {see Chap. IV. B. Sec. 6 1.
Q.i).
Q. 2. — Government settled upon a widow an annual allow- ance of Rupees 300. At her death certain arrears were dae to her by Government. The surviving members of the family are a fellow-widow and some others. The deceased widow, when she was alive, had authorized her brother to draw the arrears, and to spend the money in the perform- ance of her funeral rites. The question is, whether the right of receiving the arrears should belong to her brother or her fellow-widow ?
A. — The arrears are on account of an allowance for the maintenance of the widow ; they must therefore be consi- dered Stridhana. The fellow-widow is entitled to them as her heir.— Surat, August 29th, 1846.
Authorities. — (!•) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec, 14 I. A. 1, Q. 1); (2*) Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6 I. Q. 1).
Bbicakks. — The assignment by the deceased to her brother is inoperative according to Hind A law, as the contemplated duty cannot be performed by him, but only by her husband's family, so long as any of the latter survive.
2. The son of a step-danghter of a widow deceased, by her co-wife who died before the husband, is heir to such widow.(a) As the widow inherited from her husband, the succession would, according to the Bengal theory, be to the samo person as heir to the deceased widow's husband, his own maternal grandfiftther. See above, Introd. pp. 138, 332, 334.
(a) Motiram 8ukram v. Mayaram Barkatram, Bom. H. C. P. J. for 1880, p. 119.
Bi»i,CH.nr.B,«.en<!,q.8.] HUSBAND*S BROTHER. 525
II. d.— THE HUSBAND'S BROTHER.
Q. 1. — A number of uterine and half-brothers divided their property, and entered into a mutual stipulation that when any one of them died his property should be divided among the survivors, who should support the deceased's widow. Subsequently one of them died. His widow lived separately from her brothers-in-law (but was supported by them). When she died the question arose whether her husband's uterine brothers, or his half-brothers, or both, should be considered her heirs ?
A, — ^When a separated brother dies, his widow is his heir. When she dies her heir is her husband's uterine brother. If her husband had not separated from his brothers (and if she was supported by the uterine brothers as well as the step-brothers), they are all her heirs. AhmednugguVf October 21st, 1848.
Authorities.— (1) Vyav. May. p. lat, 1. 4 {see Auth. 9); (2) p. 135, 1. 5; (3) p. 140, 1. 1; (4) p. 133, 1. 2; ^5) p. 159, 1. 3 {see Auth. 10) ; (6) p. 136, 1. 2 {see Chap. I. Sec. 2, Q. 3); (7) p. 162, 1. 4 and 6; (8) p. 108, 1. 3 ; (9») Mit. Vyav. f . 66, p. 2, 1. 1 {see Chap. I. Sec. 2, Q. 4) ; {10*) f. 61, p. 1, 1. 14 {see Chap. IV. B- Sec. 6 I. Q. 1).
Q. 2. — A deceased woman has no sons or other near rela- tions, but there are one brother-in-law and four sons of another brother-in-law, who are all united in interests. The question is, which of these will be her heir ?
A. — The brother-in-law and the sons of brother-in-law will all beherheirs.(a) — Ahmednuggur, November 24th, 1859.
AuTHOEiTiia. — (1) Vyav. May. p. 169, 1. 2 and 6 {see Aath. 3) ; (2*) p. 140, 1. 1 {see Chap. II. Sec, 14 1. A. 1, Q. 1); (3*) Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6 I. Q. 1).
Q. 3. — Of four brothers, three died. Their widows, having received the shares due to their respective husbands, lived together. They did not divide their property. One of them afterwards died, and the question is, who is her heir ? the surviving brother or the other two widows ?
(fl) The brother-in-law must have the preference as nearer by one degree.
526 HEIBS TO FBMALES (filARBIBP). [BK.i,0B.iv.iHfl.6iid,qi.
A. — The surviving brother is the heir. Ahmednuggur, May 26th, 1869.
Authorities. — (1) Vyav. May. p. 140, I. 1 (see Chap. IT. Sec. 14 I. A. 1, Q. 1) ; (2*) Mit. Vyav. f. 61, p, 1, 1. 14 (see Chap. IV. B. Sec 6 1. Q. I).
Q. 4. — A woman of the Marftth^ caste died. She had neither a son nor any other near relation. There are^ how- ever, two brothers-in^aw, and a separated second cousin's son. Which of these should be considered the heir of the deceased ?
A. — The brothers-in-law must be considered nearer than the nephew, (a) and they should therefore take each a half of the deceased's property, — Tanna, Janttary 19th, 1853.
AuTaoarriEs.— (1) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1) 5 (2) p. 159, 1. 2 ; (3*) Mit. Vyav. f. 61, p. 1, 1. 14 (see Chap-IV. B.Sec,6I. Q. 1.)
Q. 5. — A man of the Malt caste died* He left a widow and some property. The widow subsequently died. There are now two heirs, the widow's sister and a brother of her husband. The question is, which of these is the heir ?
Suppose a woman of the Malt caste had certain property, and that she died during the lifetime of her husband ; if the husband die afterwards, and there be a sister of the woman and son of a brother of her husband, which of them will he the heir ?
A. — If a man and a woman of the Mil} caste should die without issue, the property of the husband goes to his brother, and not to his wife's sister.
If a woman of the Mfilt caste has some property given to her by her father, and if her husband dies before her, her father — and, among his near relations, her sister — will have the right to take her property. — Broach, June 29th, 1852.
AuTHORrriES.— (1) Mit. Vyav. f. 55, p. 2, 1. 1 ; (2) f. 61, p. 1, 1. 14 (see Chap. IV. B. Sec. 6 I. Q. 1).
(a) t. e. Even than the nephew, much more than their competitor here.
Bi.i,cH.iv.B,8.6iid,q.7.] husband's bbotheb. 627
Remabk.-— The second part of the answer would only be right in the case of an Asura or other disapproved marriage. In the case of the Br&hma, &c,, approved rites, the husband inherits from his wife. See the following Question.
Q. 6. — Who will inherit a womau's property, her own brother or her husband's brother f
A, — The brother-in-law may inherit so mnch of the woman's property as belonged to her husband^ and that which she may have acquired from her parents and others will pass to her brother. — Dharwavj 1845.
AuTHOKiTiEs.— (1*) Mit. Vyav. f. 61, p. 1, 1. 14 (see Chap. IV. B. Sec. 6 I. Q. 1) ; (2) Viram. f. 219, p. 2, 1. 6 :—
" The property of a childless woman, which she received from her relations, goes on her death to them, and on failure of them to her husband. For K&tyftyana says : — ' (Strldhana) which has been given by the (wife's) relations goes to them ; on failure of them to the hus- band.' "
Bbmabk. — ^The d&stri's answer agrees with the doctrine laid down in the passage quoted above. But the decision can hardly stand, for —
(1) The Mayt^kha, p. 160, 1. 7 (Borradaile,p. 129 ; Stokes, H. L. B. 106) refers the passage of EAty&yana to women only who were mar- ried according to one of the blamed rites (Asura). Moreover, instead of *' goes to her husband," the reading is there *' goes to her son."
(2) According to the Mit&ksharft the whole property of the deceased goes to tho husband's brother, (a)
Q. 7.— A widow of a '*Sadra'' became a ''Jogtin/' (6) and remained in that order for about 12 years. About a fortnight before her death she came to the house of her brother^ and there died. The question is^ whether her brother or her husband's brother should inherit her property ?
(a) Coleb. Mit. 368; Stokes, H. L. B. 461. See Muast Thakoor Deyhee v. Rat Baluk Bam; 11 M. I. A. 169.
(b) A woman devoted to the worship of the goddess called Yel- lumma, near Dharwar. She is to Yellumma what a Muralt is to Khandoba in the Dekhan, what a Bh&vin is to B&walnfttha in the Konkan.
528 HEIBS TO FEMALES (mAREIED). CBit.i,CH.iv.B,8^ii/,(i.l.
A. — If any money was received by the woman's father from her husband at the time of her marriage, her brother will be her heir. If her father received no money, or if it cannot be ascertained whether any money was received or not, her husband's brother will be her heir. Dharwar, June 3rd, 1850.
Authorities.— (1) Vyav. May. p. 159, 1. 3; (2^) Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6 L Q. 1).
Rbmaric.— See the case of Vijiarangam v. Lakshaman. (a)
11. 6-— THE HUSBAND'S HALF-BROTHER.
Q. 1. — When there are two relatives of a deceased woman, viz. her husband^s half-brother and her husband's half- brother^s son, which of these will be her heir ?
A. — The husband's half-brother being the nearest will have the precedence. — Dharwar, 1845.
AuTHOMTiBS.— (1*) Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6 I. Q. 1) ; (2*) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A 1, Q. 1)-
II. /.—THE DAUGHTER-IN-LAW.
Q. 1. — A widow died, leaving a widowed daughter-in-law, and also a widowed daughter-in-law's daughter, who has a son. Who succeeds to the inheritance ?
A. — The daughter-in-law, being the nearest, and *' Sapin- da'' relation of the deceased widow, will inherit the property. — Sural, July 25th, 1859.
AxrrHORrriES.— (1) ManuIX. 187(^eeBk. I. Chap. II. Sec. 14 1. B.^. 1, Q. 1; (2) Nirnayasindhu, Chapter on Sr&ddha {ibid.); (3) Vyar. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1).
RsMABKS. — 1. The contrary case, Bandam Settah etcdv. Bandam Mahalakshvfni, {b) is not supported by any reascms. In Baee JeUa v. Huribhai, {c) the danghter-in-law was preferred to a distant cousin
(a) 8 Bom. H. C. R. 244, 0. C. J.
(6) 4 M. H. C. R. 180.
(c) S. A. No. 304 of 1871, Bom. H. C. P. J. F. for 1872, No. 38.
BK.i,cH.iv.B,s.6iig,(i.l.] husband's BROTHBE's SON. 529
of the husband as the person who would be his nearest heir. Reference is made to Bhugwandeen Doobey v. Myna Baee, (a) Musst. Thakoor Daybeey, Bai Balack Ram et al, (b) and Lakshmibaiy. Jayram et ah (c) In the Viramitrodaya, Transl. p. 244, the daughter-in-law's right is denied. BMambhatta on the other hand, as we have seen, {d) places the daughter-in-law next to the paternal grandtnother.
2. See Bk. I. Chap. II. Sec. U I. A. 2, Q. 1, Remarks, p. 469 et seq. ; and LuUoohhoy v. Cassibai, L. R. 7 I. A. 212.
11. ^.-THE HUSBAND'S BROTHER'S SON.
Q. 1. — There were two uterine brothers. The elder brother had a son, but be died while his father was alive. The younger brother had a son. The brothers died. The elder brother's widow also died. The widow of the elder brother's son, who died during the lifetime of his father, and the son of the younger brother, have applied to be re- cognized as heirs. The question is, which of them is the heir of the widow of the elder brother ?
A. — The widow of the elder brother became heir of her husband on his death. From this the brothers seem to have been separated. The right of inheritance would therefore devolve upon her daughter or other relation. She has, how- ever, no daughter or other near relation, and as the son died during the lifetime of the father, the right of inheritance has not been through him transmitted to the daughter-in-law. It will therefore belong to the nephew.
Surafy October 27/A, 1857.
The following is a genealogical table, illustrative of the question :—
(a) 9 Calc. W. R. 23 P. C. S. 0. ; 11 M. I. A. 487. {b) 10 Calc. W. B. 3 P. 0. (c) 6 Bom. H. C. B. 162. {d) See above, Introd. p. 128. 67h
530 HEIBS TO FEMALES (mARBIED). [Bi.T,CH.iv.B,8.6nj,q.2.
Father.
Wife.
The cleceaHe<l whoso heir is to be ascertain - ed.
Elder son.
Younger son. —
Wife.
Son.
Wife.
Son.
Died during the lifetime of his father.
Claimant.
Claimant.
Authorities.— (1) Mit. Vyav. f. 65, p. 2, 1. 1 ; (2») f. 61, p. 1, 1. U {see Chap. IV. B. Sec. 6, I. Q. 1.)
Remark. — This is apdrilkdehika inherited from the husband. The answer would be correct according to the Maytllkha, according to which the property in question, having been acquired by inheritance from the husband, would descend in the first place to the widow's husband's heirs, as being for this purpose her own heirs. See above, Introd. to Bk. I. p. 146, 150, 272, 332 ; and the Introductory Remarks to this Section, p. 518, 519 ; Borr. 127 ; Stokes, H. L. B. 105.
Q, 2. — A man, named Bhukhan, had two sons named Manikchand and Mayslrdma. They effected a partition of their father's property, and wrote a deed of separation. When Mayardma died, his son D^d&bhai inherited his father's property. Afterwards DMabhai died, and was succeeded by his widow Jamnd. She died without male issue. Dada- bhai's sister Gang^, and her two sons, named Prem&nanda and K^idasa, have applied for a certificate declaring them to be the heirs of Jamn^. Jettd, son of Manik and cousin of D^abhdi, has also applied for a similar certificate. The question therefore is, whether the former or the latter are the heirs ?
A. — The two brothers mentioned in the question were separate. The Sflstra declares the following rule of succes- sion in case of the death of a separated brother. Each of
BK.i,cH.iv.B,8.6ii*,Q.i.] husband's pat. uncle's son. 531
the undermentioned relations sacceeds in the absence of the next previously mentioned : — Widow, daughter, son of a daughter, parents, the uterine brothers, nephew, step- brother, son of a step-brother^ and members of the same kin or Gotra, and among them the first is sister. Applying this rule to the case, it appears that Gang& and her two sons are the heirs,
AuTHORrtiES.--(l) Vyav. May. p. 134, 1. 4; (2) p. 140, 1. 6 ; (3) p. 140, 1. 1 («eeChap. II. Sec. 14 I. A 1, Q. l.p. 463) ; (4*) Mifc. Vyav. f. 61, p. 1, 1, 14 {aee Chap. IT. B. Sec. 6 I. Q. 1, p. 620).
Remark. — ^The kind of property in dispute not being stated, the ^astri has treated the case as one of a s accession to a male's property, and followed the Maytlkha. Her heir is, according to the Mit4kshai^ Jett&, the son of M&nik, since he is the deceased's husband's uncle's child, {. e. a Gotraja-Sapinda. {See Introductory Remarks to this Sec- tion, para. 4.)
II. &.— HUSBAND'S BROTHER'S WIDOW.
Q. 1. — A widow died. The surviving relations are a widow of her brother in-law^ and a son of a sister of her hus- band. Which of these is the heir of the widow ?
A. — The husband^s sister's son is a " Sapinda/^ but not a '' Gotraja" relation, and he is not, consequently, an heir. The widow of the brother-in-law is both the *' Sapinda*' and '* Gotraja" relation, and she is therefore the heir. Ahmedahad, December SOth, 1853.
Authorities.— (1) Mit. Vyav. f. 55, p. 2, 1. 1; (2) f. 58, p. 2, 1. 16; (3*) f. 61, p. J. 1. 14 (see Chap. IV. B. Sec. 6.1. Q. 1, p. 520).
n. i.— HUSBAND'S PATERNAL UNCLE'S SON.
Q. !• — Can a cousin of a woman's husband be her heir ?
A, — ^Yes. — Poona, September lOtk, 1852.
Authorities.— (1) Vyav. May. p. 159, 1. 2 (Stokes, H. L. B. 105); (2*) Mit. Vyav. f. 61, p. 1, 1. U (Coleb. Mifc. 368 ; Stokes, H. L. B. 461. See Chap. IV. B. Sec. 6 I. Q. I, p. 520).
532 HEIRS TO FEMALES (mARRIED). [BK.i,cH.iv.B,8.0m,q3.
Q. 2. — A man received his share of the ancestral property and separated; afterwards he died. His widow inherited his property. She also subsequently died. There is a son of her husband's sister and a cousin of her husband. Which of these is the heir ?
A. — The son of the sister of the woman's husband is the nearer relation of the two mentioned in the question, and in the order of heirs which is laid down in the S^tra, a sister's son becomes heir in the absence of a sister. He should therefore bo considered the heir entitled to all the moveable and immoveable property of the deceased, except the Vatan. — Sural, September 15th, 1849.
Authorities.— (1) Vyav. May. p. 138, 1. 8 ; (2) Manu IX. 187 {$ee Auth. 5) ; (3) D&ya Krama Sangraha ; (4) Nirnayadtpik& ; (5*) Vyay. May. p. UO, 1. 1 {see Chap. II. Sec. U I. A. 1. Q. 1) ; (6*) Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6, 1. Q. 1).
Remarks.— 1. See Bk. I. Chap. II. Sec. 14 I. B. b. 2, Q. I, p. 482; Sec. 16, B. I. (1), Q. 1, p. 496.
2. The Sslstri has taken this case for a question regarding the Baccession to a childless man's property, and decided it according to the Bengal law. See Coleb. Daya Bh&ga, 225 note. (Stokes, H. L. B. 353). According to the Mit&kshar& and the Mayukha the hus- band's cousin is the heir, see Introductory Remarks to this Section, and Chap. II. Sec. 15 B. I. (1), Q. 1, p. 453.
Q. 3. — Who is entitled to inherit from a deceased woman of Kunabi caste — her husband's sister, or a cousin who was separate from her husband, or the husband of her deceased daughter ?
A. — The sister and the cousin of her husband are near relations of the deceased woman, and they both appear to have equal claims to the property of the deceased. The sister, though very near to the deceased, has gone into another family by her marriage. The cousin is a '• Sapinda^' rela- tion of the deceased's family. The property should therefore
BK.i,cH.iv.B,8.6nj,q.l.] husband's PAT. UNCLE's GT. GDSON. 533
be equally divided between tbe two. There is nothing in the Sastras which is favourable to the claim of the son-in-law. Ahmednuggurf July 27 th, 1847.
Authorities. — (1) Vyav. May. p. 134, 1. 4 ; (2) p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1) ; (3*) Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6, 1. Q. 1, p. 520).
Bemakk. — The hnsband's cousin alone inherits according to the Mit&kshard, as he is a Sagotra Saplnda. The Sdstri regards the dev^olation of the property as governed by the rules applicable to the deceased husband's estate ; but admitting the sister as a gotraja, he should have preferred her to the cousin. (Vyav. May. Chap. IV. Sec. 8, p. 19, Borr. 106 ; Stokes, H. L. B. 89.)
Q. 4. — A woman died. Her relations are, her husband's cousin, another cousin's five sons, and her husband's bro- ther's widow. The last-mentioned died. One of the five sons died, leaving a son. How will the several heirs divide the property ?
A. — The property should be divided into seven equal shares, of which each of the heirs should take one, and the seventh share of the woman's husband's sister-in-law should be again equally divided among the six heirs. Khandesh, March 22nd, 1848.
AxTTHORTTiES. — (1) Vyav. May. p. 134, 1. 4 ; (2») p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 468; (3*) Mit. Vyav. f. 61. p. 1. I. 14 (see Chap. IV. B. Sec. 6, 1. Q. 1. p. 520.)
Remark. — ^The husband's paternal uncle's son alone inherits as the nearest Sagotra Sapinda relation of the deceased*8 husband. Ho is related to him in the 5tb, and the paternal uncle's grandson in the 6th degree, according to the inclusive mode of reckoning followed by the Hindtis. The succession to the second brother's widow, she having survived to inherit, would be the same.
II. ;.— THE HUSBAND'S PATERNAL UNCLE'S GREAT-GRANDSON.
Q, 1. — The right of heirship to a deceased woman is claimed by her son-in-law and her husband's cousin's grandson. Which of these two is the legal heir ?
534 HEIRS TO FEMALES (MARRIED). [BK.i,CH.iv.B,s.6iiJk,q.l.
A. — The woman's husband's coasin's grandson.
Ahmednuggurf December I3th, 1847.
Authorities.— (1) Vyav. May. p. 134, 1. 4; (2) p. 151» 1. 7; (3) p. 8?, I. 3 ; (4) p. 142. 1. 8 ; (5) p. 140,1. 1 {see Chap. II. Sec. 141. A. I, Q. 1, p. 463); (6*) Mit. Vyav. f. 61, p. 1, 1, 14 {see Chap. IV. B. Sec. 6 I. Q.
I, p. 520).
II. fc.— THE HUSBAND'S MORE DISTANT KINSMEN.
Q- 1. — A man named Sankarijt had two sons. One of them was called Bhaisha and the oth^r Dayaljt. Bhaisha's son was called Rt&mbar, and Dayiljl's son Ratanji. Pitam- bar's son was called Trikam, and Ratanji 's son Parushottam, The wife of Parushottam, called Divalt, died without issue. Pit^mbar's son Trikam has applied for a certiiScate of heir- ship. One Narottam Rasikadas objects to the claim of Tri- kam, on the ground that Sham& Bai, the wife of Ratanji, was the sister of Rasikad^s's grandfather, that Purushottam was her son, that Divall the wife of Purushottam made a will, which Rasikadsi^ has produced, that it authorizes him to take Divall's house and moveable property in considera- tion of his having given her maintenance, and promised to perform the funeral rites after her death, and that the sons of Sankardji had separated. The questions are, whetherthe said Trikam should be furnished with a certificate? and whether Div&li had right to transfer her property as she had done ?
A. — If there is no daughter or son of a daughter, or other near relation of Div&U, the applicant Trikam must be con- sidered a relation entitled to inherit the property of the deceased. The will does not appear to have been made under the pressure of any necessity. When Div&ll was possessed of the whole estate of her husband, she had no reason to receive maintenance from another man. The right of performing the funeral rites belongs to the relations of her husband. A will on her part was not therefore ne- cessary, and she could not have made it conformably to the law. — Surat, November 12th, 1847.
BK.i,cH.iv.B,s.6iifc,<i.2.] husband's REMOTE KINSMEN. 535
The following genealogical table will illustrate the question : —
Sankar&jt.
Bhaisha.
DayAlji.
Plt&mbar.
Batanji. —
Trikam.
PdrDshottam. —
Applicant.
|
Name not cited in the case. |
|||
|
1 |
|||
|
1 |
|||
|
BUmd. B&i. |
Grandfather. |
||
|
DivAl!. |
Father. |
||
|
The deceased. |
|||
|
BasikadAs. |
|||
|
Narottam. |
Objector.
Authorities.— (1) Viram. f. 194, p. 1, 1. 2 ; (2) Vyav. May. p. 134, 1. 4 ; (3) JtmAtav&hana D&yabb. 49; (4*) Mit. Vyav. f. 61, p. 1, 1. 14 (see Chap. IV. B. Sec. 6 I. Q. 1, p. 520).
Remakk.— AVe above, pp. 224, 294, 298, 809 ; Chap. n. Sec. 6 A. Q. 6, p. 394 ; and Bk. 11. Chap. I. Sec. 2, Q. 8, Remarks.
Q. 2. — A woman, having first inherited the property of her husband, died. The heirship to her is disputed between her husband's sister's son and some cousins three or four times removed from her husband. The question is, which of these is the heir ?
A. — As the husband of the deceased woman had separated from the other members of his family, his sister's son is the heir. The cousins cannot be preferred as heirs to the son of the deceased's husband's sister. — Sarat, June 23rd, 1845.
AuTHORiry.— ♦Mit. Vyav. f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6 I. Q. 1).
536 HEIRS TO FEMALES TmABBIED). [BK.iiCH.nr.B,s.6iik,q.i
Remark.. — ^The hasband's coasins shoald be the heirs , as they are Sapin<}as of the deceased, and also Sagotras, while the sister's son is only a Sapinda. See Chap. II. Sec. 16 B. I. (1), Q. 1, p. 493, find In- troductory Eemarks to this Section.
Q. 3. — A, a man^ had two daughters and a son. When A died, his property passed into the hands of his grandson by right of inheritance. The grandson afterwards died, and the property passed into the hands of his mother. The mother died ; and the question is, whether the property should be considered the property of the mother, or of 4 ?
Are the daughter and son of a daughter of A, or the cousin thrice removed from the husband of the woman who died last^ the heirs ?
A. — The property should be considered as the property of the last deceased person, and not of A. The cousin thrice removed of her husband is the nearer heir of the last deceas- ed, and he should be considered the heir.
Broachy December 2l8t, 1860.
Authorities.— (1) Vyav. May. p. 159, 1. 3 ; (2) p. 89, 1. 2; (3) Mit. Vyav. f. 60, p. 2, 1. 16 ; (4*) f. 61, p. 1, 1. U {see Chap. IV. B. Sec. 6, I. Q. 1).
Bbmabk. — ^The references are to the passages considered in the in- troductory remarks. The woman's heir would be her step-daughter or the step-daughter's son. The right of the latter as an heir is affirmed in Motiram v. Maya/ram. (a)
Q, 4. — There are several heirs of a deceased woman, namely^ her husband's cousins of 6 or 7 removes, and his sister. Which of these is the heir to the property of the deceased ?
A. — In the absence of any nearer relations of the deceased, her (husband's) cousins of 6 or 7 removes are her " Sapinda" relations, and therefore heirs. Cousins as distant as 7 removes are called "Sapinda," and are heirs to each other. Cousins as distant as 14 removes are called '* Gotraja^''
' (a) Bom. H. C. P. J. 1880, p. 119.
■E.f,cH,iv,B,8.6.iii6,q.i.] husband's bhinnagotras. 537
snd are also heirs. Cousins as distant as 21 removes are called '' SamsLnodaka*' ; they are also heirs of each other. This is the rule laid down in the '^ Sastra/'
Ahmedntiggur, June 9th, 1852.
AxrriioaiTiBs.— (1) Vyav. May. p. 159. 1. 3 ; (2) Chap. lY. Sec 10, pi. 26, 28 ; (3) Mifc. Vyav, f. 61, p. 1, 1. 14 {see Chap. IV. B. Sec. 6 I. Q. 1, p. 620),
RsacAaKS. — 1. The remarks on the Gotrajas and Sam&nodakas are incorrect. The Samanodakas cease with the foarteenth degree. Go- traja, " born in the same Gotra,'* is applied to all persons who descend from one common ancestor as far as such descent can bo proved by a common name or otherwise. The ^^tri, relying on the Vyav. M^y., should have preferred the husband's sisters to the dis- tant cousins. (See Introd. p. 117).
2. In the Mit&ksharA, Sam&nodakas are not named as heirs to a woman's property.
III. — Thb Husband's Sapindas BELONGiNa to a difibebnt
Family (BHiNNAOoxaA).
«.— DAUGHTER'S GRANDSON.
Q, 1. — A deceased woman has no relations except her daughter's grandson. Can he be her heir f
A, — It appears from the law books called Mayftkha and liitdkshara, that the daughter's grandson is the heir.
Poona, January 22nd, 1847.
AxrrHOKiiT.— *Mit- Vyav. f. 61, p. 1, 1. 14 {see Chap. FV. B. Sec. 6 LQ.1).
III. 6.— THE HUSBAND'S SISTER.
Q. 1. — ^A woman died without issue. Her husband's sister and the daughter of the deceased's sister have applied for a certificate of heirship. The question is, which of these is the heir?
A. — If the property in the possession of the woman was acquired by her husband^ his sister will be the heir. If the 68b
533 HEIRS TO FEMALES (mARRIED). [BE.i,cH.iT,B,f.6tiK,q.L
property was obtained by the deceased from her paroDts, her sister's daughter will be her heir.
Ahmedalad, January Slst, 1857.
Authorities.— (1) Vyav. May. p. 13t, 1. 4 ; (2) p. 160, 1. 4 :—
•* On failure of the husband of a deceased woman, if married accord- ing to the Br&hma or other (four) forms, or of her parents if mar- ried according to the Asura or other two forms, the heirs to the wo- man's property as expounded above, (a) are thus pointed out by Bri- haspati : — *Thc mother's sister, the maternal uncle's wife, the pater- nal uncle*s wife, the father's sister, the mother-in-law and the wife of an elder brother, are pronounced similar to mothers. If they leave no sons born in lawful wedlock, nor daughter's son, nor his son, then the sister's son and the rest shall take the property.' " (Borradaile, p. 129 ; Stokes, H. L. B. 106).
BE3f A.RK. — According to the MitAkshard the husband's sister in- herits in every case, as his Sapinda relation.
III. c— THE HUSBAND'S SISTER^S SON.
Q. 1. — A man died, and then his wife died. The man's ^* Bh^chU/' or sister's son, applied to bo put in possession of his property as heir, but ho subsequently died. His son has set up a claioi to be his heir, and has produced a deed alleged to have been passed to his father by the first deceas- ed, granting his land, &c, to him. There is a distant relation, seven degrees removed from the deceased. He claims to be the heir. There are also two daughters of the deceased, but they have relinquished their claim in favour of the distant relation.
A. — As it cannot be ascertained whether the distant kinsman is within 7 degrees or not, he cannot be recognized «s heir. The deceased's sister's son applied for a certificate, bat ho died. His son has set up a claim, and if there is no other nearer, and Gotraja, relation, he may be considered the heir. — Ahmedabadj January 10th, 1851.
(a) i. e, the kindred provided for by Rpccial texts. See Vyav. May. Chap. IV. Sec. 10, p. 24 (Stokes, H. L. B. 104).
ji.i.cH.iv.B,» 8uic,q.3.] husband's BIT1NNAG0TRA3, 639
AuTHoaiTiB3.— (1) 7yav. May. p. 134, 1. 4; (2) p. U0,1. 1 (eceChap. II Sec. U I. A. 1, Q. 1) ; (3») MLt. Vyav. f. 61, p. 1, 1. U {see Chap. IV. B. Sec. 6 I. Q. 1, p. 620).
Remark. — See latroductory Remarks to this Section, para. 4.
Q. 2. — A deceased woman has left her brother*8 son and her husband's sister*3 son. Which of these will be the heir ?
A, — Her brother's son appears to bo the nearest heir. This opinion is founded upon an inference drawn from the order of relatives who are authorized to perform tha funeral ceremonies of a deceased woman. This order com- mences with son, and continues by mentioning grandson, husband, daughter, daughter's son, husband's brother, cousin's son, his daughter-in-law, ftither, brother, and brother's son — Dharwar, Juno 13th, 1853.
AuTHORiTiBS.— (1) Dharmasindhu III. f. 6, p. 1, 1. 10 {see Sec. 7, Introductory Remark, Note) ; (2) Mit. Vyav. f. 61, p. 1, L 14 {see Chap. IV. B. Sec. 6 I. Q. 1).
Bbmabk. — According to the Mit&ksharft, the husband's sister's son would inherit as the deceased's husband's Sapinda, see Chap. II. Seo. 15 B. 1.(1), Q. 1, p. 493. According to the Vyav. May. there would be a difference according to the source of the property. See above (6) Q. 1.
Q. 8. — A man died, and his wife also died after him.. The man's sister's son, who lived with the wife, performed the funeral rites for her. Will he or her brother be the heirl
4.— The man's sister's son will succeed to the property, provided it has been bequeathed to him. If the deceased has left no will to that eflfect, her brother will be her heir by law. He should take the property and perform the funeral rites. In his absence the deceased's nephew will bo the heir. — Ahmednuggur, June 22nd, 1848.
ArTHORiriES.— (1) Vyav. May. p. 159, 1. 3f. ; (2*) Mit. Vyav. f. 61, p. 1, 1. 14 (see Chap. IV. B. Sec. 6 I. Q. 1, p. 520).
Remark. — See the preceding case, (a)
(a) The husband's family extends to the husband's paternal aunt's son, according to Burreemohun Shaha v. Sonatum 8h<iba, I. L. B. 1 Cal. 275.
640 HEIRS TO FEMALES (mAREIED). [Bi.i,ca.iT.B^7.
B. SECTION 7.— THE WIDOW'S SAPINDAS. Introductory Remarks.
1. The question, whether on failure of all relations on the hus- band's side, the widow's father's family is entitled to inherit her property, if she had been married according to one of the approved rites, is still more difficult} to decide than those regarding the hus- band's Sapindas.
The MitaksharA is silent on this p)oint ; it mentions none of the widow's Sapindas as entitled to inherit. The MayAkha names a few (six) among the heirs who succeed to Stridhana proper on failure of the husband, hut before the hushand^B Sapindas, (a)
2. Though the leading authorities thus seem to give no encourage- ment to the doctrine that tho widow's Sapindas inherit after those of the husband, the Sastris nevertheless declare unanimously that Buch is the case. They ijuote as authorities chiefly MayCikha, p. 140,
I. 1 (a), and p. 159, 1. 5 (6), where, in both passages, tho verse, Manu IX. 187 (quoted in full in Chap. II. Sec. U I. B. b, 1. Q. 1, p. 481) :- " To tho nearest Sapinda the inheritance next belongs," &c., is quoted. See Mit. Chap. II. Sec. 3, p. 5, note.
In the M^aava-dharma^iistra this verse refers to the succession to a separate male's estate, and the .Mayflkha quotes it, p. 140, 1. 1, (6) in this sense, in order to prove tho right of the sister to inherit her brother's property. But in tho Mayilkha, p. 159, 1. 5, (c) it is applied also to the succession to a woman's pro|>erty, and Nilaka^itha uses it in order to prove that the Stridhana proper of a childless widow, who was married according to an approved rite, goes not to the hus- band's nearest kinsmen, as tho Mitakshar& states, but to her own nearest Saplrid is in the hitshanirs fainibj. Hence it is evident that Nilakantha took the above-mentioned verse of Mann to be a general maxim, applicable to all cases of inheritance — a proceeding perfectly in harmony with the principles of the Miraams&, which rules the in- terpretation of the Smfitis. {d) The S;istris, therefore, by applying
(a) Vyav. May. Chap. IV. Sec. 10. cl. 30, Borradailo ; and Intro- ductory Remarks to the preceding Section, cl. 3. See Bk. I. Chap.
II. Sec. 15, Introductory Remarks.
(6) Chap. IV. Sec. 8, p. 19 (Borr. p. 106 ; Stokes, 11. L. B. p. 89).
(c) Chap. IV. Sec. 10, p. 23 (Borr. p. 128 ; Stokes, H. L. B. p. 105).
(d) Compare the language of the Privy Council in C Chtntamun Singh v. Masst. Nowlukho Konwari, L. R. 2 In. A. at p. 272 ; Vyav. MayQkha, Chap. IV. Sec. 8, pi. 11 ; and Mit&kshar&, Chap. I. Sec. 2, pi. 4.
M.i,cH.iT.B,s.7.] widow's sapindas. £41
ib to the case of a widow whose husband's family is extinct, have only followed the example of Nilakantha, and in no wise departed from the general rules of interpretation. The chief objection which could be raised against the correctness of their view, would be that the list of heirs given in the Mit. and May. must be considered exhaustive.
3. Before touching upon this latter point, it will be advisable to take into consideration some other circumstances which make ii probable that the widow's own Sapindas inherit on failure of the husband's kinsmen.
For though a woman by marriage loses her place in her father's family, and many of the rights and duties which her p>arents and her kinsmen in her father's family possess over her, or have to fulfil towards her, are suspended, it appears that on extinction of the hus- band's family these same rights and duties revive. Thus the right or duty of guardianship over a female is vested after marriage iu the husband, his sons, and his Sapindas successively. (a) But if the husband's family becomes extinct, it reverts to her parents and their kinsmen, not to the king, who takes the place of guardian only on failure of both families. (6)
In a similar manner the duty of performing the last rites and funeral oblations for a widow falls first on the husband's kinsmen, oa failure of them on the widow's own relations, and lastly on the king.(c)
(a) 5^36 above, Introd. to Bk. I. Sec. 10, on Maintenance, at pp. 231, 246 83. Where a person claims the custody of a female minor on the ground that she is his wife, and such minor denies that she is so. Act IX. of 1861 does nob apply. The plaintiff must establish his right by a suit, Balmukund v. Jankl, I. L. R. 3 All. 403, see Act. XX. of 1864, Sec. 31, and as to the representation of the minor in suits Manok* chand v. Nathu Purakotum, Bora. H. C. P. J. F. for 1878, p. 204 ; Jadow Muljl V. Chagun Baichund, I. L. R. 5 Bom. 306.
(e) See Viramitrodaya, quoted in Chap. II. Sec. 6a, Q. 6, and Mit. Ach&ra, f. 12, p. 1, 1. 6 :— For it is declared " On failure of relations on both sides (the husband's and the parents'), the king becomes the supporter and master of a female." So Ndrada, Pt. II. Chap» XIII. 29.
In O. S. 894. of 1370 in the High Court, Bombay, on its original side, a widowed sister's maintenance was admitted by brothers as a charge on the ancestral estate.
(c) Dharmasindhu HE. XJttar&rdha, f. 6, p. 1, 1. 10:—
'* (The persons authorised to perform the funeral oblations) for a married female are, on &ilure of her son, the son of a rival wife ; on
642 HEIBS TO FEMALES (mAEEIEd). fBi.i,cH.iT.B,t.7i,q.l.
As then the widow's kinsmen would, bat for her marriage, undoubtedly have the right to inherit her estate on account of their blood relationship, it seems not unreasonable to suppose that this right may revive on failure of the persons who barred it.
The objection which might be raised against this view» that the silence of the MitlLkshar& and of the Mayi^kha regarding the rights of the widow's blood relations, is equivalent to a denial of these rightSj cannot be sustained* since the lists of heirs given in the two lavf books are not exhaustive. For neither the persons connected by spiritual tics with the widow, i.e, the husband's Ach&rya and pupil, nor the Br&hmanical community in the case of a Br&hman widow, nor the king in the case of other castes, are mentioned as heirs, though their eventual rights to the inheritance would not be disputed by any HindA lawyer.
4. If therefore the right of the widow's own blood relations revires on failure of the husband's Sapindas, it seems natural to allow them to succeed in the same order as they would have done before her marriage, and to place the mother first, next the father, after him th» brothers, and the rest of the Sapindas according to the nearness of their relationship, (a) {Sse Mit&kshar&, Chap. II. Sec. 3> p. 5, notej Stokes, fl. L. B. 443).
In conformity with this principle, and according to the maxim that Sagotras inherit before the Bhinnagotra- Sapindas, {b) the Ques- tions belonging to the following section have been arranged thus :— I. Sapimlas in general. II. Sagotra- Sapindas, a, mother ; b^ brother, &c. III. Bhinnagotra- Sapindas.
B. SECTION. 7.— I. SAPINDAS in GENERAL. Q. 1. A daughter of a Paradesl Brahman and her husband, lived v^ith him. The husband subsequently ran
failure of him, her grandsons and great-grandsons in the male lino j on failure of them, the husband; on failure of him, the daughter; on failure of her, the daughter's son ; on failure of him, the husband's brother ; on failure of him, the husband's brother's son ; on failure of him, the daughter-in-law ; on failure of her, the father ; on failure of the father, the brother ; on failure of him, the brother's son, and th« other (Sapindas) who have been mentioned before."
(a) See Chap. IV. A. pp. 501 ss.
(6) See Introductory Remarks, Chap. IV. B. Section 6, para. 4, p* 519.
Bi.i,cH.iT.B,».7.na,q.l.] MOTHER. 643
away. The father had given some ornaments to his daughter. Afterwards both the father and his daughter died. There is neither the husband nor a son of the daugh- ter, and the question is, whether the separated relativesof her father should be considered her heirs.
A. — The husband and his relatives are the heirs to the property of a woman who has neither a son nor. a daughter. In the absence of the husband and his relatives, the woman^a mother and father, or their relatives, are the heirs. The father's relatives mentioned in the question are therefore the heirs of the deceased woman.
Khandeshy September 9th, 1851.
Authorities.— (1) Mit. Ach&ra,f. 12, p. 1, 1. 4; (2)Mit. Vyav. f. 60, p. 2, 1. 16; (3) f. 61, p. 1, 1. 12; (4) Vyav. May. p. 140, 1. 1 {$ee Chap. II. Sec. 14 1. A. 1, Q. 1, p. 464).
Q. 2. — When there are two '' Sapinda" kinsmen (o) of a woman having equal relationship to her, how will they inherit the property ?
A. — Each of them should receive an equal share.
Dharwar, 1846. AuTHOBiTiES. — *Vyav. May. p. 140, 1. 1 (see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 463).
II. — Sagotea Sapindas.
a.— THE MOTHER.
Q. 1. — A woman died. Her parents applied for a certifi- cate of heirship. Her four separated nephews, of whom the eldest is the guardian of the three under age, preferred a si- milar application. Subsequently the parents suborned the eldest nephew. He now states that he cannot prove his
(a) This word means the relations of the same blood, and is, in the legal phraseology of the Hindtis, limited to those who can trace their descent to one common ancestor so far as the seventh degree, either through males or females. (S&8tri*8 Bern)
544 HEIRS TO FEMALES (mARBIBD). [BK.i,CH.iT.B,8.7nc,q.l.
relationship to the deceased, and that he is a distant relation. He further admits that the deceased's father is her heir. Can this admission affect the rights of the minors under his protection f
A. — The nephews are not heirs of the deceased. Of tbe parents who have applied for recognition as the heirs of the deceased, the. mother must be considered the first heir. The father will be the heir only in the absence of the mother. There can be no objection to the withdrawal of the claim advanced by the eldest nephew on behalf of himself and his younger brothers. He and the parents may have come to an understanding about the matter.
Ahmednuggur, April llth, 1851.
AuTHORFTiKS.— (1) Vyav. May. p. 159, 1. 5(««tf Auth. 3); (2*) p. 140, 1. 1 (see Chap. H. Sec. 14 I. A. I, Q. 1, p. 403) ; (3) Mit. Vyav. t 47. p. 2, 1. 15.
[Note. — The kind of property in dispute is not stated.]
11. 6.— BROTHER.
Q. L — ^When there is no relation of a deceased woman on the side of her husband, who will be her heir — her two ute- rine brothers or her sister's son f
A, — The uterine brothers.— -Poo/ia, February 29<A, 1848.
AuTHoamES.— (1) Vyav. May. p. 159, 1, 3; (2) p. 159, 1.5; (3) p. 140, 1. 1 (gee Chap. II. Sec. 14 I. A. 1, Q. 1).
Rbkarks. — In Rurrymohun Shaha v. Shonaiun Shaka (a) (Bengal law), there is a case in which a deceased woman^s brother was declared heir in preference to her husband to property presented to her by the husband's paternal aunt's son. This would accord with Vyav. May. Chap. IV. Sec 10, p. 13, 27, bat not with the Mit&ksharA, Chap. II. Sec. U, p.2, 11.
11. c— HALF-BROTHER.
Q» 1. — Can the step-brother of a deceased woman be her heirf
(fl) I. L, R. 1 Oalc. 275.
ii.i,CH.tv.B,8.7n.d,q.2.] NEPHEW. 545
A. — When there is no one of the family of the husband of the deceased woman, her parents will be her heirs. If the parents are dead^ any one belonging to the family of the parents will be her heir. The half-brother, therefore, is her legal heir. — Dharwar, September 2Srd, 1851.
AuTHoarriEs.— (1) Vyav. May. p. 159, 1. 3 ; (2) p. 140, l. 7 ; (3») p. 140, 1. 1 (see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 463).
Q, 2. — A woman died. Can a half-brother be her heir f
A. — According to the Mitakshard and Dharmslbdhi, when there are neither children nor husband of a woman, the Sapinda relations of her hnsband become her heirs. When there arq no Sapinda relations, the woman^s father and his relations become heirs. If there are no relations of her husband, her half-brother will be her heir. Dharwarj September 2Srd, 1851,
Authorities.— (1) Vyav. May. p. 159, 1. 3 (see Aufch. 3) ; (2) p. 134, 1. 4; (3*) Mit. Vyav. f. 61, p. 1, 1. 12 (see Chap. IV. B. Sec. 6, 1. Q. 1, p. 620).
n. d.— BROTHER'S SON. Q. h — Can the sons of a full brother of a deceased woman be her heir ?
A. — Ye3*—Ahmednuggury June 7th, 1853.
Authorities.— (1) Vyav. May. p. 159, I. 3; (2) p. 169, 1. 5; (3) p. 140, 1. 1 (see Chap. II. Sec. 14 I. A. 1, Q. 1. p. 463).
Q. 2. — A man granted a piece of land to his widowed daughter for her maintenance. The daughter afterwards died. There is none of her kin, but there is a son of her uterine brother. The question is, whether he is the heir ?
A. — If there is none of the deceased woman's kin, her uterine brother's son is her heir.
Ahmedabad, February Ibthy 1841.
AuTHoaiTiEs.— (1) Vyav. May. p. 1J34, 1. 4 ; (2) p. 140, 1. 1 (see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 463).
546 HEIBB TO FEMALES (mABBIBD). [BK.T,CH.Tv.B,8,7u.?,q.l.
IL e.— HALF.BROTHER'S SON.
Q. 1. — A man died, and his moveable as well as immove- able property passed into the hand of his wife. She had no children. . She had allowed her mother, half-brother, and elder sister to live with her. About four years afterwards, the widow died. There was no member of the family of her husband then living. Her property fell into the possession of her sister. Afterwards her mother, step-mother, aod sister died. The sister's nephew and the son of the half- brother are now alive. Which of these is the heir of the deceased woman ?
A. — The nephew of the woman's sister (a) cannot inherit the property. The son of the half-brother is entitled to it. Ahmedabad, May 31 «f, 1845.
Authorities.— (1) Mit. Vyav. f. 58, p. 2,1. 16; (2) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 463).
II. /.-PATERNAL UNCLE.
Q. 1. — A widow died, leaving two relatives, a Bhachi (a woman's brother^s or sister^s son, and a man's sister^s son), and her father's brother. The question is, which of these is the heir ?
A. — Her father's brother is the heir.
Ahmedabad^ February 17th, 1858.
Authorities.— (1) Vyav. May. p. 134, 1. 4; (2) p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 463).
Eemark. — But only if the term Bh&ch& here means sister's son, as a brother's son is a nearer Sapinda than the fother's brother.
II. ^r.— THE PATERNAL UNCLE'S SON.
Q. 1. — A woman of the Sfldra caste has no other heir than a cousin. Her husband is dead. Can the cousin be her
(a) This must apparently mean a son of another sister, nephew therefore of the deceased.
M.i,CH.iv.B,8.7ni.b,q.l.] SISTERS, AND MATEB. UNCLE's, SON. 547
heir ? If there are three cousins can one of them who has applied to be recognized as heir be considered her heir ?
A. — All the three cousins have equal right to be the heirs of the woman. — Ahmednnggv/r, January Slst, 1854.-
Authorities.— (!) Vyav. May. p. 159, 1. 3; (2) p. 159. 1. 5; (3) p. 140, 1. I {see Chap. II. Sec. 14 1. A. 1, Q. 1, p. 463).
in. — Bhinnaqotra Sapindas of the Deceased's Family.
a.— THE SISTER'S SON.
Q. 1. — Can a man inherit the property from his mother's deceased sister ? A* — If there is no other heir, he can. Dharwar, Jamia/ry 26th, 1850.
Authorities. — (1) Vyav. May. p. 1^0, 1. 4 {see Chap. IV. B. Sec. 6, m. &, Q. 1) ; (2*) p. 140, 1. 1 [see Chap. II. Seo. 14 I. A. 1, Q. 1, p. 463).
Remark. — A divided brother is preferred, notwithstanding the sis- ter's son was acknowledged and recognized as the adopted son of the deceased brother, but without ceremonies of adoption (a).
Q. 2. — A Kunabl woman has died. Her sister's son sur- vives. The deceased made no gift in his favour. Can he be her heir according to the S&stra ?
A. — ^It appears that the property left by the deceased is her Stridhana, and that her sister's son is entitled to it^ even though there be no will left to that eflFect. Ahmednuggur, February 22nd, 1847.
AuTHORTTiES.— (1) Vyav. May. p. 160, 1. 4 {see Chap. IV. B. Sec. 6, HI. h. Q. 1); (2) p. 159, 1. 5 {see Chap. II. Sec. 14 I. A. 1, Q. 1, p. 463); (3*) p. 169,1.3.
III. 6.— MATERNAL UNCLE'S SON.
Q, 1. — A widow died without issue. Her mother's bro- ther's son has applied to be put in possession of her property,
(a) Bliagvan v. Kald Shankar, I. L. R. 1 Bom. 641.
548 HEIRS TO FEMALES (MABBIBD). [BK4,cH.iT.B,8.7in.c,<i.t
consisting of some land^ &c. The deceased widow had obtained the property from her mother's brother, and there are no nearer relations of the deceased. Should the appli- cant, nnder these circumstances, be pat in possession of the property ?
A. — ^There is no nearer relation of the deceased ; tbe applicant, though of a different Gotra, is a Sapinda relation. He is therefore the legal heir of the deceased. Akmedabad, June SOth, 1851.
Authorities.— (1) Vyav. May. p. 140, 1. 1 {$ee Chap. II. Sec. U I. A. 1, Q. 1, p. 463) 5(2) p. 134. 1. 4; (3) p. 140, 1. 6.
III. 0.— THE SISTER'S DAUGHTER.
Q. 1. — Is a sister's daughter the heir to a deceased woman, there being no near relative ? A. — Yes. — Dhartoar, June 11th, 1853. Authority.— Vyav. May. p. 143, 1. 1.
Q. 2. — A man died, leaving two daughters. One of them died, leaving a daughter. The other also died afterwards. The question is, whether the daughter of the first deceased daughter can inherit the immoveable property of the deceased ?
A. — ^The daughter who died last has left no children. Uer sister's daughter cannot claim the right of inheritance. The order of heirs laid down in the Sastra does not mention a daughter of a sister. That order states that, when there are no near relatives to be found, the Guru and others become heirs. A Br&hman's property is sacred, and the Raja or Govern- ment of any country is prohibited from taking it under any pretence whatever. — Surat, March 23rd, 1850.
Authorities.— (1) Mit. Vyav. f 56, p. 2, I. 1 (Coleb, Mit. 824; Btokes, H. L. B. 427) ; (2) f . 59, p. 1, 1. 9 ; (3) f . 45, p. 2, 1. 8.
Remarks. — 1. The Sastri mistakes the case for one regarding the succession to a man's property.
2. For the correct answer see the preceding case.
Bi.i,CH.iv.B,s.7in.c,q.4.] SISTEE's DAUGHTER. 549
Q. 8.— Twro brothers effected a partition of their landed property ; afterwards one of them died. The son of the deceased held his father's share for some time, and died. His sister succeeded him, and after having remained for some time in the possession of the share, died. The ques- tion is, whether the daughter of the sister or the son of the sister-in-law of the father of the deceased is the heir ?
A. — The uterine sister who inherited the property of the uterine brother died. The rights of inheritance will now descend to the daughter of the other sister. Surat, December 7th, 1846.
Authority.— *Vya7. May. p. 140, 1. 1 (see Chap. II. Sec. U I. A. 1, Q. 1, p. 463.
Q. 4 — Who will inherit from a deceased woman, her sister's daughter or her sister's son's widow ?
A. — The sister's daughter is entitled to inherit. It is to be remarked that when there are two heirs, a daughter and a son, to Strldhana, the daughter has the priority of claim. Ahmednuggur, August 13th, 1847,
AxTTHOKTrr,— Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 1. A. 1, Q. 1, p. 463).
Remark.— The preference of daughters to sons only takes place in cases where they inherife from their mother. The right of the de- ceased's niece rests on her proximity.
550 HEIRS AOC. TO CUSTOM OF SECTS, &C. [bi.i,ch.v.
CHAPTER V.
CASES OE INHERITANCE DECIDED BY THE
CUSTOMS OF CASTES OR SECTS, (a)
SECTION 1.— HEIRS TO A GOSAVt.
Introductory Remarks.
The Brfthmanical law, Mr. Ellis points out, (b) never obtained more than a qualified dominion in Southern India. In the Bombay Pre- sidency the collections of Mr. Borradaile and Mr. Steele show that
(a) An instance of the flexibility of customary law, while yet unem- bodied in decisions formally recorded, is to be found in the case of the M&lis (Moghreliya) at Surat. When questioned by the Judge they answered that a marriage might, amongst them, be dissolved at the desire of either husband or wife. Either some practical inconveni- ence arose or the moral perceptions of the caste became more refined; a meeting of the caste was held, and it was voted unanimously that divorce should not in future be allowed except for powerful reasons recognized by the caste panchayat. This was communicated in answer to one of Mr. Borradaile's inquiries, MSS. Bk. G., sheets 29, 30. A recent change of custom was recognized, though it was not necessary to base the decision upon it, in Musst, Radiyat v. Madhow' jee Panachund, 2 Borr. 740. According to the notion generally en- tertained by the d&stris that customs, where not plainly repugoant to the scriptures (Gtiut. Chap. XI. para. 20 ; Apast. Transl. p. 15), may be regarded as resting on some lost Smf iti (Ap. Tr. p. 47], the preference of conflicting Smritis may be determined by usage. See Viram. Transl. p. 127 ; Colob. Dig. quoted in the Utpdt case, 11 Bom. H. C. R. at p. 267 ; M. Miiller, H. A. Sansk. L. p. 63. Macnaghten, H. L. p. 102, says the custom of Niyoga and consequent legitimacy of the Kshetraja son is still preserved in Orissa. But besides its con- servative faculty custom has had to be recognized where it plainly abolished the ancient law, as in the very case of the Niyoga just mentioned {see Mit. Chap. I. Sec. 3, p. 4], and the unequal partition prescribed or allowed by the Smritis but condemned by usage {see Vtram. Tr. p. 61). Mitramisra (Vtram. Tr. p. 107) places theanthority of custom so high that he declares what is illegal in one generation may by usage alone be made legal and even obligatory in another.
(6) 2 Str. H. L. 162.
BK.i,cH.v.] INTBODUCTORY REMARKS. 551
many caste usages have been preserved contrary to the rules of the Smritis, designed generally or chiefly for the guidance and control of the Br&hmans. The tendency to adoption of the ceremonies and legal ideas of the higher castes by those of a lower order has already been noticed, (a) Bat many differences still subsist which make it hazardous to apply the rules of the S&stras to the legal relations and transactions of any but the higher castes in the spheres of status and of family law, of adoption and of inheritance. Bnt few cases of this kind appear as the subjects of questions to the Sdstris, because being regarded as matters of special custom, such questions as arose were disposed of on the evidence given in each case. A collection of such cases might have been made from the records of the courts, but it would have been a work of considerable time; and meanwhile a process of gradual assimilation has been going on which is on the whole beneficial. The rules of the different religious orders based generally on a real or fancied analogy to those of Br&h- man ascetics have frequently been submitted to the S&stris, and a general idea of the law of inheritance prevailing amongst their mem- bers may be gathered from the cases here collected. But in litigation concerning any matha or community it must be borne in mind that it is the customary law of the particular class or institution that must govern the decision, rather than general rules deduced from
Nilakantha, V. M. Chap. I. para. 13, points to many inMngements of the scriptural law warranted by custom, and even goes so far as to maintain that its approval may exempt harlotry from penance. The necessities of social existence have thus forced the Commentators by degrees from the position of uninquiring submission to the letter of inspired precepts, and a sufficient authority can now be found within the Hindii law itself for a rational development of its principles in accordance with the improved moral consciousness of the castes [see Mathv/ra Naikin v. Esu Naikin, I. L. R. 4 Bom. at pp. 561, 567, 570). The sole choice is not between a retention of every rag of usage which the community has outgrown, and the adoption of a wholly foreign system : the course is open of a gradual amelioration of the indigenous law in harmony with its fundamental notions, and with the modified conception of these induced amongst the Hindtks them- selves by the exigencies and the new standpoints of each stage of social progress. The customary and case law of England has been formed under influences substantially the same as those just indicated, and a remarkable analogy may be observed between the view of custom as derived from lost Smfitis and custom in England as Statute law worn out. (a) Above, pp. 9, 426.
552 HBIBS TO A GOSAVt. [Bi.i,cH.r.
the practice of other orders or societies, (a) This is the necessary qaahfication to the somewhat broad statement of Mr. Colebrooke at 2 Str. H. L. 181. (b)
According to the statements made by the GosAvis to Mr. J. War- den {see Steele's Law of Caste, App. B. p. 64 ff.)f the members of this order living in Western India consider themselves as Sanny&sts, following the rales of ^nkar&ch&rya, and pretend to obey the laws of Mann and other DharmasAstras. (c) Though it would therefore seem that cases of inheritance to their property should be decided according to the rules of the DharmasAstra on the succession to the property of a hermit, and though the answers to the following Ques- tions show this to have been also the opinion of some of the Law Officers, (d) it nevertheless cannot be allowed that such a proceeding is in accordance with the general principles of the Hindtl law. For, though on account of their retirement from the world, they are in a position analogous to that of the SannyAsis, the GosAvts cannot claim to be SannyAsts in the proper seose of the word. The order of the real SannyAsts is open, according to some authorities, to Br&hmans, Kshatriyas, and Vaisyas, according to others to BrAhraans only. It may be entered at any time after the completion of the ceremony of investiture with the sacred girdle, (e) The SannyAst is bound to
(a) See the cases cited above, Introd. p. 201. (6) See also the Ut^t case, 11 Bom. H. 0. B. 249, and the NaiHn case, I. L. R. 4 Bom. 545.
(c) Different statements are given by H. H. Wilson, Works, Ed. Rost, Vol. I. pp. 167—169, a^d passim,
(d) They are considered as real SannyAsts also, Oungapooree v. Musst. Jmnee etal,9'S. W. P. S. D. A. B. 212; Sungram Singh v. Dehee DuU etal 10 ibid. 477.
(e) Nirnayasindhu, Par. m. UttarArdha, f. 51, p. 2, 1. 9:— An- giras — " A person who knows (the Vedas) may enter the order of the Sanny&sts, whether he be a BrahmachArt, a G|^hastha or V&na-
prastha, whether he be sick, or suffering Vijn&ne^vara
(Mit. PrAy. f. 25, p. 1, 1. 10) and the rest say that a BrAhman alone has a right to enter on this (order of the SannyAst), on account of this inspired text of JAbAla : — * BrAhmans become SannyAsts,' and because Manu says : — * Having reposited the sacred fires in his mind, the BrAhman should leave his house and enter the order of the San- nyAsts.' And there is another verse to the same effect .— * It is said that for BrAhmans four orders are ordained in the revealed texts, for Kshatriyas three, for Vaisyas two, and for SOdras one.* But the members of the three (twice-born) classes have also a right (to enter
M. 1, cH. v.] HEIRS TO A GOSAVi. 653
keep the vow of chastity and to renoance all transaction of business. The Gos&vis on the contrary receive among their number l^Adras (a) also and women; who have no right to become Sannydsis. They neglect the performance of the Samsk&ras or initiatory rites. Con- cubinage is allowed by their Custom, and some marry. (&) Lastly, many are engaged in trade atld other worldly business^ (c)
It thus appears that it is impossible to consider thefn SannyAsis in the sense of the Hindi) law, and consequently to Subject them to the laws of this order, tt is equally impossible to place them under the laws of the Grihasthas or householders^ as some S&stris have done, since a very great number have no family ties and live in the Matbas as metnbers of coenobitic fraternities ; and others^ though married, adopt pupils. Now, in all cases, where a section of the Hinder community places itself by its customs or opinions in opposi- tion to orthodox Hindilism and its law, the iSindtl legislators allow disputes between its members to be Judged according to its law or custom, {d)
Thus the king is directed to uphold the customs of the castes^ (e) of the P&shandas, or heretical sects, and of the T^aigama orthodox sects. (/) The custom to be followed in the case of particular insti- tutions is in general that of such institutions as proved by testimony. The custom in order to be recognized must apparently be one not obviously bad or injurious to the institution to which it is attributed. See below. Sec. 1. On the same principle of guarding the interests of the foundation it has been held that in the case of a Trusteeship held in heritable shares by several families, though a father could relinquish his right of management to his son, the son could not join in an alteration in the constitution of the Trust. Nor could a majority of the trustees bind a mtinority by an agreement to increase the number of trustees. (gr)
the order of Sanny&sls), since it is declared in the KArmapur&na : — ' A Br&hman, a Kshatriya, or a Yaisya should leave his house and enter the order of the Sanny&sls.' " (a) Steele^ Law of Caste, App. B, clause 24< (h) Steele, Law of Caste, App. B, clauses 29 and 42.
(c) Steele, Law of Caste, App. B, clause 14.
(d) See Bhd/u Ndndji v. Sundrdhdd, 11 Bom. H. 0. E..249.
(e) Vyav. May. p. 7, 1. 1 ; Borradaile 7 ; Stokes, H. L. B. 15.
(/) Vyav. May. p. 206, 1. 1 ; Borr. 176, 177 ; Stokes, H, L. B. 141 ; Mit.Vyav. f.73,p. 1,1. 6.
ig) Kiyipattu A- Narayan Nambudti v. AyikoUUalu S. Nambudri, I. L. R. 5 Mad. 165. 70 H
554 HEIBS TO A GOSAVl. [BK.i,cH.t.
Under these circumstances it would seem advisable to place the oases referring to the inheritance to Gk>8&y!s under the rales which, according to their statements to Mr. Warden, contain their law of custom, (a) Hence in some of the remarks on the following cases, instead of the authorities from the Law Books being quoted in fall, references have been given to the paragpraphs of Mr. J. Warden's Re- port, and to Steele's Law and Custom of the Hindoo Castes.
The following statement however may be qudbed as describing s custom which with slight local variations governs the succession to Sanny&sts throughout the greater part of India. " It has been laid down by the late Sudder Dewanny Adawlut that amongst the gene- ral tribe of fakirs called saniasis a right of inheritance strict! j
so speaking to the property of a deceased guru or spiritual preceptor does not exist ; but the right of succession depends upon the nomina- tion of one amongst his disciples by the deceased guru in his own lifetime, which nominatioii is generally confirmed by the maliants of the neighbourhood assembled together for the purpose of performing the funeral obsequies of the deceased. Where no nomination has been made the succession is elective, the mahanU and the principal persons of the sect in the neighbourhood choosing from amongst the disciples of the deceased guru the one who may appear to be the most qualified to be his successor, installing him then and there on the occasion of performing the funeral ceremonies of the late guruV{b)
In some instanced thid religious services perfofmed by Gros&vls or Vair&gls in chargo of temples are rendered on the voluntary prin- ciple. The temple is the property of a caste or section of a caste, whose representatives control the expenditure of the funds, pay the guru, and appropriate the surplus proceeds of the endowment and offerings for caste purposes. In such cases the guru holds his place for life and during good behaviour, but has not a property in his oflBoe or in the emoluments. His nomination of a chelA as his succes- sor has no special force, but is generally respected by the caste if he
(a) Compare also Nirunjun Bharthee v. Padaruth Bharthee el ol, N. W. P. Repts. of Sel. Cas. 1864, Pt. I. p. 512.
{b) Madho Das v. Kamta Dae, I. L. E. 1 All. at p. 541. Stigan Chand v. Oopalgir, 4 N. W. P. B. 101, excludes a cheld who deserts his guru. On the subject of sacerdotal privileges and superiority, see Bamasaurmy Aiyan et al v. Venkata Achari €< oZ, 9 M. I. A. 344; and Kashi Bashi Bamlinga Stoamee v. Chitumhemath Koomar Swamee, 20 0. W. R. 217.
BK.i,CH.v,8 l.i.a,q.2.] DISCIPLE. 555
was himself held in esteem, (a) As to the formal expression of the will of the caste or its representatives in these and other cases re- ference may be made to Steele, L. C. 124 ss. The inhabitants of a village or of a quarter of a town sometimes erect a matlia or temple —a practice often commemorated in inscriptions. (&) The position of the ofl&ciating worshipper or ^wru in snch cases varies according to the terms of his institution ; but he is generally removeable for misconduct, (c)
SECTION I. I. To A Malb Gosav!. a.^THE DISCIPLE.
Q. 1 . — Can a disciple succeed to the propertjr of a de- ceased Gos§.vl ?
A, — A disciple is the heir of a Gosdvi, and therefore can succeed as sach. — Ahmednuggur, 1845.
Authority not quoted.
Eemark. — See Steele, Law of Oaste, App. B. para, 20. {d)
Q. 2. — A Gosavi died. There is a disciple nominated by him as his successor. Can he succeed him ?
A, — The Gos&vls and Vairilgls should be regarded as Sanny^sis of the lower castes, such as Sftdras and others.
(a) His nomination is in other cases held biQding. See Steele, L. C. 437. (ft) As for instance the one described in Ind. Antiq. vol. X. p. 185 ss.
(c) See Acharji LaUu Banchor v. Bhagat Jetha Ldlji, Bom. H. 0. P. J. 1882, p. 374.
(d) Succession to ascetics is based wholly on personal association, Kliuggender N- Ohotodhry v. Sharicpgir Ogho^'eriath, I. L. B. 4 Calc. 543. An ascetic cannot alter the sucession to an endowment, Mohunt Rumundae y. Mohunt Ashbul Doss, 1. C. W. B. 160. He cannot impose restrictions on his successor contrary to the custom, such as disposing of the Mohantship by way of reversion, Oreedhari Doss v. Nund Kissore Doss, 11 M. I. A. 405. The general rules of succession are given in the Smriti Chandrik&, p. 122.
The trustee of a religious endowment may not alienate or encumber it except under special circumstances. See Q. 4. Bern. 2.
656 5EIBS TO A aOsAvi. [bk.i,ch.v,8 l.i.a,q.4.
The person who claims to be the heir is a disciple nominated by the deceased. His claim therefore should be recognized. Ahmedabad, September 15th, 1853. AuTHORrnES.-<l) Vyav. May. p. 134, 1. 4 ; (2) p. 141, 1. 7.
Rema&ks — 1. The Guru must Dominate a chela as successor, and this must be confirmed by the mohants. (a) For the succession of a chelA in the Srtlvak sect, see Bhutaruk Rajendra v. Sook Sagur et al. (6) For a joint succession of two chel&s, Oapaldas v. Damodhar. (c)
3. SAdras cannot become Sannj&sfs in the sense in which the word is used in the Dharmas&stras. See Introductory Remarks.
3. See also Steele, Law of Caste, App. B, para. 20.
Q. 8. — Is a disciple or a Gurubh^u of a Gosivl his heir ?
4. — ^If the Garubh^fl is separate the disciple will be the heir. If he is united in interests, be and the disciple will be the equal heirs. — Khandesh, July 3rd, J 854.
AuT^oBiTiES.— (1) Vyav. May. p. 131, 1. 8 ; (2) p. 134, 1. 4.
Remaril.— See Steele, Law of Caste, App- B, para. 20 ; Mahdo Bos T. ^an^/d Dae. [d)
Q. 4» — A Ma^ha of a Gos^vi had always been in charge of disciples succeeding one another. Should it remain with a disciple or a relation of the Gos4vi ?
4.-^The Sftstras contain no provision regarding the matter. The cnstom of the sect should therefore be inquired into, — Poona, December 29th , 1847.
Authority,— Vyav. May. p. 7,1- 2 {see Chap. IL Sec. 13, Q. 9, p. 462.)
BEMiRKS.— The Ma^ha should pass into the possession of the disciple if he was non^inated by his Grurn. If no nomination had taHett place, and there are several disciples, they or the Dasn&m&h will elect a suc- cessor. See Steele, I^aw of Caste, App. B, paras. 18, 18, 20.
(a) Atmanmd v. Atmarqm, N. W- P. S. A. R. for 1862, p. 46?. (5) 1 Borr. R. 320.
(c) 1 Borr. ^, 439.
(d) I. L. R. I All. 53a.
it.i,ce.v,8.1.i.o,Q.5.] DISCIPLE. 657
2. In Rajah Vurmah Valia v. Ravi Vurmah Mutha, (a) the Judicial Committee say : — " They conceive that \vhen, owing to the absence of documentary or other direct evidence of the nature of the foundation, and the rights, duties, and powers of the trustees, it becomes neces- sary to refer to usage, the custom to be proved must be one which regulates the particular institution.*' Reference is made to the case above, Q. I, and approval given to Peacock C. J.'s dictum in that case, that *' each case must be governed by the usage of the particular mohantee. " The Rameswara Pagoda case (6) also is referred to.
" The important principle is to ascertain the special laws
and usages governing the particular community."
In Sammaniha Pandara v. Sellappa Cheiti (c) the origin of mat has is discussed, and the duties and powers of the superior described in a way assigning to him in Madras a somewhat larger discretion than is recognized elsewhere.
3. Religious endowments are generally inalienable, but they may be temporarily pledged for repairs and other necessary purposes. See Prosunno Kumari Debya v- Qolab Chand Babu {d) ; Narayan v. Chinfaman (e); Khufdlchand v. Mahadevgiri if); Mohunt But-m Su* roop Dass v. Khashee Jha (g) ; Malhdr Sakharam v. Udegir Quru [h) ; and the remarks in Qundoji Bawa v. Waman Bawa, (t)
Q, 5. — 1. A GoBavJ, having nominated two disciples, died. Both these disciples lived iu the Matha of their Gnru. The senior disciple nominated a disciple to succeed him. The junior disciple was afterwards conjfined in prison on a charge of murder. While in prison he nomi Dated a disciple, and passed to him a deed authorizing him to inherit his and his Guru's property. On the strength of this document, the disciple has filed a suit against the senior disciple, and the man nominated by him as his disciple, for the recovery of the property of his Guru. Is his claim admissible ?
(a) L. R. 4 I. A. at p. 83. (fc) L. R. 1 I. A. at p. 228.
(c) I. L. R. 2 Mad. 175.
(d) L. R. 2 I. A. 145, 151.
(e) I. L. R. 5 Bom. 393. (/) 12 Bom. H. C. R. 214. (g) 20 C. W. R. 471.
{h) Bom. fl. C P. J. 1881, p. 108. (i) lb. p. 292.
558 HETRS TO A GOSAVl. [RK.i,CH.Y^.l.i.a,q.5.
2. What actions make a man Patita ?
3. What ceremonies should be performed on the occasion of nominating a disciple ?
A. — 1. As the man was confined in prison for murder, he must be considered a Patita. He has forfeited his right of nominating a disciple, and a disciple nominated by such a person cannot claim any property.
2. A man becomes a Patita by the commission of the fol- lowing crimes : — (1) Stealing gold; (2) Killing a Br&hraan ; (3) Drinking intoxicating liquors; (4) Having criminal intercourse with the wife of one's teacher, one's sister, &c. ; (5) Burning a house ; (6) Killing a man by administering poison to him. There are some others besides those above enumerated.
3. A person nominated a disciple must be one who is not married. The Guru gets him shaved and communicates to him certain sacred words. The followers of the sect to which the Guru belongs are informed of the intended nomi- nation. The Ssistra is silent on this subject, but the custom requires these ceremonies, and a disciple, duly nominated with the customary ceremonies, becomes entitled to a share of his Guru's property.- — Ahmedahad, June 2nd, 1845.
AuTHOEiTiEs.— (1) Mit. Yyav. f. 60, p. 1, 1. 13 ; (?) f. 60, p. 2, 1. 1; (3) Vyav. May. p. 161, 1. 7.
Remarks. — 1. The acts for which a Gos&vt is outcasted are :— Killing a cow, a Br&hman, a woman, a Guru, or a child, and sexual intercourse with other than Hind(l ivomen. See Steele, Law of Caste, App. B, para. 30.
2. ^Regarding the ceremonies at the initiation of a (josivt, see also Steele, Law of Caste, para. 27.
3. Importance seems to be attached by some of the sects to a written nomination of a chel& as successor to the guruship which, once delivered, they consider irrevocable except for conduct produc- ing spiritual incapacity.
4. In Greedharee Dose v. Nundkissore Doss Mohunt, (a) the Judi- cial Committee say : — " This peems to be clear, from all the evidence
(a) 11 M. I. A. at p. 429.
Bi.i.CH.T,8.1.La,q.7.] DISCIPLE* 559
in this case, as far as it has been brought under their Lordships' attention, — that there cannot be two existing Mohant$\ that the office cannot be held jointly ; and that, therefore, if there was a double Ticca at all, it must havd been a Ticca of the office in reversion after the existence of the incapacity of Ladlee Doss to perform the duties. Bat the evidence upon that point, and the law adduced upon the subject b^ibre their Lordships, fail entirely to satisfy their minds that any such species of investiture was according to the rules and customs of these Mohants, or that any such Mohantship can be given in reversion.*'
Q. 6.-^ A Gos&vl had two disciples, one was bom by a kept woman, and the other was presented to him by another Gosavi. The Gosftvi, at his death, left no directions provid- ing for his succession, and the question is who should suc- ceed him ?
A. — A virtuous disciple should succeed. The son ot a kept woman cannot. A virtuous disciple means a disciple who is hospitable and civil to those who visit his dwelling. Ahmednuggur, October 20<A, 1859.
Authorities. — ^Vyav. May. p. 142, 1. 4 and 8.
Remabk. — ^Tbis answer would be ri^ht in the case of a real Sannyftst. According to the custom of the Gos&vis, however, to whose case also the authorities above quoted refer, natural sons may become disciples, and inherit as such from their fathers. See Steele, Law of Caste, Appx. B. paras. 29 and 20. See also Ndrdyanhhdrti v. Lavinghhdrti et al, (a) which excludes the offspring of an adulterous connexion.
2. The purchase of a chel& is in some cases recognized. See Coleb. Dig. Bk. V. Chap. IV. Sec. 10, note. This, Colebrooke says, is not to be regarded as adoption but as resting on the special custom of the caste. See 2 Str. H. L. 133.
Q. 7. — Two persons claim to be heirs of a Gos4vl of the Mar&tha caste. The one is a " Gurubha A'* or a disciple of the same preceptor. The other is a son of a kept woman of the deceased, but adopted by him as his disciple by the ceremony of tonsure (Mundana). Which of these is the proper heir?
{a) I. L. B. 2 Bom. 140.
660 HEIRS TO A GOSAVi. [bk.i.ch.v,s.1.i.o,(1.8.
A. — Both appear to be the heirs, but the one adopted as disciple seems to be the nearer of the two.
Eutnagherry, November 8th, 1845.
Authority not quoted.
BBMAJLRSi— See Steele, Law of Caste, Appx. B, para. 29.
2. The alleged disciple or shisbya of a deceased Grosdvi who saed another alleged shishya in possession of the matha and estate for a declaration of his own superior title must, it was held, pay the fee proper for a suit for possessioui the real purpose of the suit being to obtain the property, (a)
Q. 8.— -A Matha of a GosAvi was held from disciple to disciple. This being the case, a disciple married, and broke through the custom of the Matha. Can this breach of the custom be held a bar to his right of inheritance ?
A. — A disciple, who conforms himself to the custom of the Matha, and no other, can succeed.
AhmednugguTj August Hth^ 1854.
Authority.— Vyav. May. p. 142, 1. 2.
Remarks. — The anthority given by the ^Astri refers only to a real Sanny^st, though the answer itself appears to be correct.
2. Both in the Dekkan and elsewhere the Gos&vis in some cases marry and still are eligible to roahantship in succession to deceaded mahants. " The exception made (by Mr. Warden) must be extended to other places than the Dekhan also. It has been proved that the Bh&rti sect of Gos&vts in (Ahmedabad) the locality whence this
appeal comes, very generally marry and there is one if not two
instances of a married member of the Bh4rti sect being a mahant of a math.*'
"The plaintiff having proved his succession as mahant •...•
we think that the bnrden of proving that the plaintiff's subsequent marriage worked a forfeiture of his office and its appendant property and rights lay upon the defendants. "(6)
(a) Ganpatgir v. Oanpatgir, I. L. R. 3 Bom. 230.
{b) Sir M. Westropp. C. J., in Gosain Surajbharti (Plaintiff in both cases) versus Qosain fiambharti (Defendant in R. A. No. 11 of 1880), and Goaain Ishvarbkarli (Defendant in R. A. No. 12 of 1880), I L. R. 5 Bom. at p. 684.
M.i,cH.v,8.1.i.l),q.l] FEMALE DISCIPLE. 561
Q. 9. — ^If a Gos&vl has got himself married, is he still to be considered a Gosavt ? Can he claim the right of inherit- ing from his Guru f A deceased Gosavl had left two dis- ciples;— one of them is suffering from a disease, and the other died leaving a disciple nominated by him. To whom will the right o£ inheritance belong ? to the man afflicted with disease, or to the disciple of a disciple ?
il.-rThe question of the legality or propriety of the mar- riage of a Gosavi should be disposed of by the king in accordance with the usage of the sect. When a disciple is suffering from such diseases as black leprosy and others, and when he is in such a condition that he cannot be admit- ted into the sect, he cannot claim the right of inheritance. According to the custom of the sect, the disciple of a disci- ple will be the proper person to inherit the property of the deceased. — AhmednugguVj October 26th, 1 850.
AuTHORrrY.— Vyav. May. p. 142, 1. 2 and 8.
E.£m:akks. — 1. Regarding the permissibility of the marriage, see the preceding case.
2. Begarding the right of the disciple's disciple to inherit fron his Guru's Guru, see Steele, Law of Caste, App. B, para. 20.
I. 6.— FEMALE DISCIPLE.
Q. 1 . — A Gosavl who had no heir, nominated a woman as his disciple. Can she be the heir after his death ?
A. — According to the Sastras she cannot be the heir of the deceased. — Dharwar, October 2nd, 1848. Authority. — Vyav. May. p. 142, 1. 4.
Remarks. — 1. Female disciples are received by the Gos&vis, and as it would seem, they also inherit their Guru's property. See Steele, Law of Caste, App. B, paras. 21 and 20.
2. In the Reports of Selected Cases, Suddor Dewani Adawlut, North- Western Provinces, Vol. II. p. 235, it is ruled, that a female disciple does not inherit, since, according to the Huidu Law, only males can take the property of their Guru. 71 H
562 HEIE8 TO A GOSAvl. [B».i,CH.v,a.l.i.d,qJ.
I. c— DISCIPLE'S DISCIPLE.
Q. 1. — A Gos&vi died. There is a disciple of his disciple^ and some grand-disciples of the grand-disciple of his Guro. The question is which of these will be the heirs of the deceased?
A. — The grand-disciple is the heir. If, however, the deceased and the other disciples were united in interests, all would be entitled to an equal share of the inheritance. Khandesh, January 26^/t, 1 854,
AuTHORiTr. — ^Vyav. May. p. 134, 1. 4.
Remajlk.— iSee Steele, Law of Caste, App. B. para. 20.
Q. 2. — Should a man apply for the property belonging to his Guru^s Guru, can he have it ?
A. — No. — Dharwar, 1846.
Authority not quoted.
Remaek, — See the answer and remark to the preceding case.
L d.— THE FELLOW-DISCIPLE. Q. 1. — A Gosavl died. His GurubhaA is alive. Should the property of the Gos&vi be considered heirless ? J.— The Gurubhaft is the heir of the Gosavi.
Tanna, March 25th, 1850. AuTHOBiTT. — Vyav. May. p. 142, 1. 4. Bemakk.— The authority refers to a real Sannyftst.
Q. 2.— A K4nph&ta Gosftvi had two disciples. They both died, one after the other. A disciple of the first deceased has applied to be recognized as heir of the one who died afterwards. Is he the heir t
A. — When a man in the order of " Vinaprastha'' dies, his Guru and others can inherit his property. When a man dies in the order of Sannyasis his disciples become his heirs. When a man dies in the order of Brahmachari, his Dharma^Bhai^s or fellow-students can inherit his property.
ii.i,0H.v,8,i.i.#,q.i.] guru's pbllow-disciplb. 663
From this, it appears that a disciple, nominated according to the custom of the caste by the one who died firsts can inherit the property of his Guru's brother who died after- wards.— Khandnsh, August 23rd, 1850. AuTHORiTT. — ^Vyav. May. p. 142, 1. 4.
Rbmabk. — ^The authority and answer apply to the case of a real
Sanny&si.
Q. 3. — Can a 6urubh&A of a Guru of a deceased Gos&vi be his heir T
A. — No one can be the heir of a deceased Gosavt except his Guru disciple or GurubhaA.
Ahmednuggur, November ith, 1846.
Authority not quoted.
Q. 4. — A Gos&vl had two disciples. One of them no- minated a disciple, the other had none. The latter died. Can his property be claimed by the disciple of the former f
A, — ^The S&stra does not recognize the heirship of a per- son situated as above mentioned. He cannot therefore be considered an heir of the deceased. Poona, November 30th, 1853.
Authority not quoted.
I. e.— THE GURU'S FELLOW-DISCIPLE.
Q. 1 .—A Gosivi has died. Will the Gurubhad of his Guru be his heir ?
A, — The S&stra allows a man to acquire knowledge from 5 person of a lower caste than himself. By the custom of the country, a Guru and a disciple stand in the same relation to each other as a father and a son, and they become heirs of each other. The S^stra permits a disciple to inherit from his Guru, and a Guru can in like manner inherit from his disciple, who dies without issue. It is nowhere men- tioned in the S&stra that in the absence of a Guru his brother
564 HEIBS TO A GOSAVt. [Bi:.i,CH.T,B.l.n,q.l;
may succeed^ but as a Guru in the caste of Gos&yis takes the place of a father ia a family, a Gunibh^u may, in the absence of a disciple, brother, or brotber^s disciple, be consi- dered an heir. — Sadr Addlat, March 5thj 1 853.
Authority.— Viramit. f. 209, p. 2, 1. 9.
Remarks. — 1. The ansvrer would apply to a real Sanny&st.
2. The decision of the question depends upon the custom of the caste and class.
n.— HEIRS TO A GHARBARI, OR MARRIED GOSAvi.
Q. 1. — A Gosdvl kept a woman. She gave birth to a son. The Gosivi then married another woman. He afterwards died. Which of these three survivors should be declared his heir ? and how far would the fact of the deceased being ori- ginally a Brdhman, Kshatriya, or a Vaisya before he entered the order of Gos&vi, affect the rights of heirs ?
-4. — A good disciple becomes the heir of a Gosav! as a general rule. But if he were of the SAdra caste and his wife childless, the son of his mistress would, according to the custom of the Sftdras, be his heir, the wife being entitled to a maintenance only. If the deceased originally belonged to either of the other three castes, viz. Brahman, Kshatriya, or Vaisya, his good disciple should be considered his heir. Ahmednuggur, April 14ih, 1857.
Authorities.— (1) Mit. Vyav. f . 65, p. 1, 1. 11 ; (2) f. 59, p 1, 1. 13.
Remabks.— 1. The 6&stri*s answer applies to a Grihastha or house- holder only.
2. If the customs of Gharb&ri' Gos&yls are the same as those of Gros&vJs proper, as would seem to be the case according to Steele, Law of Caste, App. B. para. 42, the illegitimate son will be the heir. See Steele, ibid, para. 29. (a)
Q. 2. — A Matha of a Gosivi was held from disciple to disciple, A Gos^vi who came into possession of it kept a woman, by whom he had a son. Afterwards he married and
(a) This case illastrates the remarks made above, Introd. p. 85, 86.
M.i,cH.v,8.1.ii,q.5.] DISCIPLE. 565
became a '* Gharbari/' He subsequently acquired some pro- perty and died. The question is, whether the son of the kept woman or his widow is the heir ?
A. — If the GosS.vi belongs to the SAdra caste the son of his kept woman will be his heir. If the Gos^vl belongs to either of the three superior castes, namely. Brahman, Kshat- riya, and Vaisya, his widow will be his heir. The son in this case may claim maintenance, not as a matter of rights but grace. — Tanna, March \hth, 1856.
AuTHOBiTiES.— (1) Mit. Vyav. f. 55, p. 1, 1. 11 ; (2) f . 55, p. 2, 1. 1.
Bema&k. — See the preceding case.
Q, 8. — A deceased Gosivi has left a wife and a disciple. Which of these is the heir ?
A, — The wife will be the heir. The disciple cannot suc- ceed, but if the custom of the sect requires that the disciple should succeed, he may be allowed to do so. The wife in that case will be entitled to maintenance only. Khandesh, November SOth, 1859.
Bemaek. — Regarding the Gharb&ri, or married Gos&yt, see Steele, Law of Caste, App. £. paras. 6 and 42 S,
Q. 4. — A Gos&vl, either of the sect of the Purl, Gin, or Bhdrathi, acquired a Yatan like that of a Fatil or Kulka- rani. Can it descend to his or his wife's disciple ?
A. — ^Among the Gosavls of the above-mentioned sects, a disciple is as good an heir as a son among other people. If a disciple was not nominated by the male Gosavi, his wife may nominate one to succeed to her estate in the same manner as a widow among other classes is allowed to adopt a son. No objection seems to exist to such a proceeding. Khandesh, October 2l8t, 1848.
Authority.— Vyav. May. p. 142, 1. 4.
Q. 5. — The parents (of the Kunabi caste) offered their son of the age of three months to a Gharbari Gosavi (married
666 HEIRS TO A FEMALE GOSAv!. CMJ,CH.T,»l.iii,ql.
Gtesarl). Before the child was initiated in the rites of the sect, the Gosivl died. His wife, however, called the mem- bora of her sect, and presented a turban to the child, and placed him on the seat of the deceased. The nephew of the deceased taught him certain incantations and shaved his head. Is this not sufficient to entitle him to a certificate of heirship of the deceased ?
A. — If the deceased Gosfivi's wife and nephew have done all that was required to qualify a successor to a Gk>savl ac- cording to the customs and rules of the sect, the certificate applied for may be given to him. Among the Vanapras- thas, Brahmach&rls, and Sannyasis of the ten difierent tenets, the succession takes place by disciples. The Gosavis and Yairagis follow the same tenets, and should be treated accordingly. — Ahmeinnggur, March 2Qthj 1849.
AuTHoaiTT.— Vyar. May. p. 142, 1. 2 and 8.
in.— HEIRS TO A GOSAVINt, OR FEMALE
Goslvi.
Q. 1. — A female Gos&vl died. Which of the following will be her heir : — Her Guru, namely the preceptor, or the one who initiated her into the doctrine and practices of the sect; her Guru's son; her husband's disciple; her second or '^ Pit'' husband's disciple ; her GumbH&ft, or the one who belongs to the same fraternity to which her Gum belongs ?
A. — According to the custom of the sect of Gosjlvis, a well-behaved disciple will be the heir of the deceased. If she has made a gift of her property to her Guru, he can take it. If there is neither of these with the necessary quali- fications, the disciple of her second husband must be pre- ferred to her Guru. — Ahmednuggur^ Februury 24th, 1847.
AuTHORrriES.— (1) Mit. Vyav. f. 59, p. 1, 1. 13 ; (2) Yyav. May. p. 142, 1, 8.
B.muASR.^Se6 Steele, Law of Caste, App. B. paras. 21 and 20.
Bi.f,cH.T,i.2,Q.l.] HEIBS TO A JANGAMA. 667
Q. 2. — Can a woman of the Gos&vi sect, who is under the vow of celibacy, nominate a disciple ? And can her pre- ceptor or Guru bo her heir ?
A. — A virtuous woman of the sect can nominate a dis- ciple, and if a disciple is virtuous he can succeed as heir. The Guru may take such property as may have been duly transferred to him, but in the absence of a properly qualified disciple, the property will go to the Sirkar,
Ahmednuggur, Augiist 22nd, 1847. AcTHomTY. — Vyav. May. p. 142, 1. 4 and 8. Remask. — See Steele, Law of Caste, App. B. paras. 21 and 38.
SECTION 2.— HEIRS TO A JANGAMA.
Introductoby Remark,
The Jangamas are the priests of the Lingftyata sect, who pretend to have renounced the world, like the Sanny&sis. Bat the laws referring to the latter cannot be applied to them for the same reasons as in the case of the Gos&vts. For an account of their doctrine and history, see H. H. Wilson, Works, Ed. Rost, Vol. I., pp. 218—230; and of their customs, Steele, Law of Caste, p. 105 ff.
Q. 1.— A Brahmach&rl Jangama, holding the hereditary office of Patt&dhik^ri died. The question is whether the successor to the office should be a Brahmach&ri (unmarried) or a married Jangama ?
2. A man alleges that the office was conferred upon him by the deceased. The question is, whether his eligibility to the office will be effected by the performance or omission of the ceremony called the Jan^ama-Dikshll (a).
3. The head Matha is presided over by a Brahmachart Jangama, and there is an inferior Hatha, which is also pre- sided over by persons of the same class. The Brahmacharl of the inferior Matha died, and has left no disciple. Can the Brahmachdri of the head Hatha succeed to the inferior Hatha ?
(a) DikshA = Initiation.
568 HBIRS TO A JATI. [be.i,ch.v,8^.q.1.
A. — 1. A man cannot succeed to a Pattadhikarisliip, unless he is his Dharma-brother, or fellow-student living in the same dwelling. He must further be a Brahmach&ri living in a college, and a V!ra-Saiva, who is the most picas of the seven classes of the Saivas or the worshippers of Siva. A married man, although he is a fellow-student, cannot be an heir of a Pattddhik^ri.
2. The answer to the second question is, that if it be proved that the man who claims to be an heir of the deceased is possessed of all the qualifications a'bove-mentioned, and the Pattadhikdri on his death-bed conferred the office upon hira with the ceremony called the " Triordha-Dtksh^,'' his claim should be admitted.
3. The answer to the third question is, that if the Pat- tadhikari of the head Matha possesses all the qualifications, and if he has a right derived from long established custom, he may be allowed to succeed.
Sholapoor, December Srd, 1856.
AuTHORiTY.—Mit. Vyav. f 69, p. 1, 1. 13.
Remarks.— According to Steele, Law of Caste, p. 105, the head of the Matba(Patt&dhikftri) appoints his successor, or the disciples elecb a new Patt&dhik&ri with the sanction of the caste, Zamindars or Go- vernment.
In some Mathas the Jangamas are married. Ibid. p. 106.
There is a good account of the usual origin of a Hatha in Samman' tha Pandara v. Sellapx^a Chetti (a) referred to above.
SECTION 3.-HEIRS TO A JATI. Introductoey Remark. The Jainas are divided into Yatis or Jatis, religious devotees, and Sr&vakas, lay-brethren. As the Jainas deny the authority of the Ve- das, they belong to the P&shandas, heretics, and their devotees, con- sequently, are not subject to the laws of the Sanny&sts. Kegarding the history and doctrines of the Jainas, see H. H. Wilson, Works, Ed. R. Rost, Vol. I. pp. 276—369 ; and regarding the practices of the Yatis, ibid. p. 317 ff. For rules and customs as to the succession to Gurus, see Steele, Law of Caste, p. 103.
(a) I. L. R. 2 Mad. 175. ~
lK.i,CH.ir,8.3,<l.2J DlSCtPLll. 669
Q. 1. — (1) A Jati died leaving two disciples. They may have effected a partition of the property of their Guru or left it undivided* Afterwards the senior disciple died, leaving a disciple. The questions are, whether this disciple can claim a moiety of the property of his grand-Guru 7 or whether it will go to the brother*disciple of the last deceased 7
(2) A Jati fii*st became a disciple of one Guru, and after- wards of another by the ceremony called ^^ Sipuj/' and as- sumed the name of t)atta. Subsequently he called himself by a name in which his first and the second name were com- pounded. Is the Jati to be considered a disciple of the first Guru 7 and can he inherit from his Guru in preference to his brother-disciple 7
A. — (1) The Sastra declares that the best disciple is the heir of his Guru. The two disciples, having effected a parti- tion of their Guru's property, became separate. Afterwards one of them died. His disciple therefore is the legal heir. K the Guru's property had not been divided, yet the right to an equal share of it on the part of each of the two disciples is inherent, and the disciple of the deceased should bo allowed to take whatever share belonged to his Guru.
(2) The Jati, who became a disciple, first of one and then of another Guru by the ceremony called " Sipuj,^' cannot be considered to have deserted his first Guru. He still calls himself by the name which his first Guru gave him. He cannot therefore be considered to have forfeited his right of inheritance.— /Swra^, September 29^A, 1849.
AuTHOfirry.— Mit. Vyav. f. 59, p. 1# 1. 13.
Q. 2. — ^A Guru of the Sriraka sect has applied for a certificate declaring him to be the heir of a disciple of his Guru-BhaA. The applicant has kept a woman. Is his right to inherit from the deceased affected by this circum- stance 7
il.— A Guru is like a Sanny&si, and fornication on his part is contrary to the Sastra and the usages of the Jaina 72 H
570 HBIB8 TO A NANAK SHAhI. [BK,i,cH.T,si,q.l.
sect. A Guru addicted to such a vice forfeits his right of inheritance. — Surat, October 28<A, 1850.
AUTHORITIBS.— (1) Mit. Vyav. f. 69, p. 1> 1. 13 ; (2) Yoga ChandrikA.
SECTION 4.— HEIRS TO A NANAK SHIhI.
Q. 1. — A man of the Nftnak Sh&hl sect died. There are his Gara-Sishyas and Quru-BhlLfts, Which of these should be considered his heir f
A. — The sect founded by N4nak Shah! is not recognized by the SS,stra. It has recently come into existence. The persons of that sect are Siidras, whose property cannot be inherited either by their Gurus or Sishyas, and others connected merely by the similarity of their tenets. The property should be taken possession of by the Sirkfilr. Poona, July Uh^ 1851 •
AuTHOHiTY. — ^Vyav. May. p. 142, 1. 2.
RiMABKS.— I. Regarding the tenets and history of the N4nak Sh&hts, 9ee H. H. Wil80D> Works, Ed. R. Rost, Vol. I. p. 267 as.
2. The d&stri seems to intend that the N&nak Sh&ht, being ^ddras, cannot be placed ander the roles regarding the inheritance to a San- nyftst. But it by no means follows that for this reason the property is to be considered heirless. According to what has been said in the Introductory Remark to Chap. V. Sec. 1, the case ought to be decided according to the custom of the sect.
SECTION 5.— MANBHAir.
Q, 1. — ^There are two sects of M&nbha.us. The indivi- duals of the one lead a life of celibacy, and the individuals of the other marry. Among the former, are preceptors and disciples the heirs of each other ; and among the latter, are sons and other relations the heirs ?
A. — There is no provision in the Sastra regarding the sect, and the question therefore must be decided according to the customs of the sect.
AhmednugguTy October 21 thy 1848.
K.i,CH.T,8.6.] HEIES TO A VAIBAGl. 571
Q. 2. — Can a disciple of the '' MaW caste be the heir of a M^nbh^vini (a womau who had embraced the tenets of M4nbhaft)?*
-4. — If the man of the Mairi caste was made a disciple ac- cording to the custom of the sect, he can be the heir. Khandesh, October llth, 1852.
Q. 3.— A "Guru Bahina'* of a man of the Manbhaa sect died. He claims her property. Can it be given to him even if the Guru is said to be living in another country ?
A, — There is nothing in the* S^stras regarding the sect. Their customs, therefore, whatever they may be, should be respected. — Ahmednuggar, October 16th, 1850.
Q. 4. — A woman had two sons, named Saybowa and Sukha- deva. The woman, though originally a SAdra, adopted a M&nbh&A for her Guru. Her younger son Sukhadeva also chose the same Guru, so that according to the custom of the sect, the mother and the son became Gurabh&ii and Guru- bahina (brother and sister) of each other. Saybowa had selected a different Guru. The mother, after her initiation into the sect, built a house. Subsequently she and her son Sukhadeva died. The latter has left a disciple. By the custom of the MiLnbhafl sect a Gurubh&u becomes heir. The question therefore is, whether the disciple of Sukhadeva, who was the GurubhaA of his mother^ or the son of Say- bowa, should inherit it ?
A. — According to the S^stra, the son or the grandson is the heir to the property of his mother. Khandesh, February lOth, 1851.
Authority not quoted.
SECTION 6.-HEIRS TO A VAIRAGI.
Introductoey Remarks. Regarding the history and tenets of the Yair&gis, see H. H. Wilson, Works, Ed. R. Rost, Vol. I. p. 184 ff.
572 HEIES TO A VAIBAG}. [BK.i,CH.T,8.6(l),q.l.
RogardiDg their cnstoTDB «ee also, Steele, Law of Caste, pp. 102, 433 t8. Yair&gis'so-called are sometimes found in occapation of temples, as amongst the Shenvi Br&hmans in Bombay. They in some cases hold the temple property after the manner of true mahants, and appoint ohel&s, subject to approval by the panch or committee of the Vair>s of the other temples in the island. In other cases the property ii held by trustees for the temple, and the quasi-mahants' appointment of a successor is little or nothing more than a recommendation of him as worshipper to the trustees in whom as representatives of the caste, owners of the temple, the right of nomination is really vested. The practice varies as to the direct ownership of the endowment, as to its management, as to the removeableness of the worshipper, and the he- reditary descent of his office to chel&s whether nominated or not, and has seldom ac(|uired in any institution the consistency and perma- nence requisite to a custom tQ be recognized by Courts of law.
The Vairftgis are Vaishnava mendicants, following either the doctrines of B4m&nanda or of Nimb&ditya, Kabir, D&d(l, and other teachers. They receive Sildras and women into their community, and for this reason they can neither be considered real Sanny&sis, nor be subjected to the laws of the Dharmai^stra, It would however seem that the married Bhafe Vairft^s, mentioned by Mr. Steele, form an exception, and are simply Gfihasthas or householders.
SECTION 6 (I).— HEIRS TO A VAIRAGI (a). Q, 1. — Who is the heir of a deceased Vairagt ?
A.-^K the deceased has left any property, his disciple, and if there is no disciple, one of his sect will be the heir. A Vair3.gl, however, can give away his property to any one he chooses. — Sural, August Ist^ 184j5t
Authority not quoted.
(a) A disciple who leaves his Guru without permission and goes away, manifesting an intention to be permanently absent, is not en- titled to a share in the succession, Soogun Chund et al v. Gopal Gir et flZ, 4 N. W. P. R. 101. This occurs not unfrequcntly, as the chel&s go about to seek a better settlement. They cannot again become cheUs in the proper sense, but they sometimes attach themsekes to mahants or quasi^mahants as assistants, and get nominated or elected as successors.
BK.i,CH.v,8.6(l),Q.4.] THE DISCIPLE. 573
Bemarks.'!. See Steele, Law of Caste, p. 109, Isb Edn. ; p. 103, 2nd Edn. 2. A Vair> may retain his property, (a)
Q. 2.— Can a disciple of a Vairagl be his heir ?
A. The Sastra takes cognizance of the succession by a disciple of a Sannyasl, but not of a Vairdgi. The custom, therefore, should be the rule in the case of the latter sect. Poona, December 26th, 1854.
Authority not quoted.
Q, 8. — One Bhagv^ndds performed the funeral rites of the deceased Atm^r&m Bdv4 Vairdgi. The heads of the Vair%l sect called the "Mahants,'' who had come on the occasion, recognized Bhagvindas as the successor of the deceased. Should he or the sister of the deceased be consi- dered the heir ?
A, — ^According to the usages of the sect, Bhagvand&s is the heir, by reason of his being a properly qualified disciple. The sister, though a Sapindia relation, is not the heir. Ahmednuggur, November Ist, 1847.
Authority not quoted.
Bbmaek. — See Mohunt Sheoprokaah Doss y. Mohwnt Joyram Doss, (b)
Q. 4.-^There were two balf-bi'others of the Vair&gl sect. One of them held a certain estate. On his death his son succeeded. On the death of the son, the other brother came into possession. On his death, his son-in-law succeeded and remained in possession for about 16 years. He performed the funeral rites of his father-in-law. The brother who first succeeded to the estate left a daughter. She has applied for a certificate of heirship. Can her claim be admitted ?
A. — According to the usages of the Vairilgi and the Gosavi sects, a virtuous disciple has a better title to succeed than a '^ Sapipda" relation. The disciple who performed the funeral
(a) Jagannath Fal v. Bidyanand, 1 Beng. L. B. A. C. 114. {b) 5 C. W. B. 57. Mis. A.
674 HEIRS TO A VAIRAGI. [bk.i,ch.t,8.6(8),9.2.
rites of the deceased will therefore inherit, if he be a virtu- ous man. The claim of the deceased's niece, who applies for a certificate, should be rejected as being contrary to the usages of the sect.
Ahmednuggur, August I5thj 1847.
Remarks. — Yirtaoui here means not merely of good moral condact, but of adequate capacity to profit by iuatruction, Viram. Tr. p. 203, though in fact the Vairftgts are often grossly ignorant.
2. The adopted son of a Vair&gi, who yet mingles in worldly afiairs, may succeed to his property, (a)
(2).— GJRU.
Q, 1 . — Can the Guru of a deceased Vair&gi be his heir ?
A. — Tes. — Khandesh, February 5th, 1857.
AuTHORiTiis.— :i) Vtram. f. 309, p. 2, 1. 10 ; (2) Vyav. May. p. 142, 1.7.
Remark. — If such is the custom of the caste, and not, as the ^stri seems to think, according to the Dharmas&stra. See Jugdanund Gosamee v. Kessvh Nund Qosamee et al. {b)
(3).— THE FELLOW-STUDENT. Q. 1. — Can the Gurubhau be the heir of a deceased Vair4gi?
A. — Whatever property may remain after the performance of the obseqaies of the deceased should be made over to the GurubhaA, if the disciples are not to be found.
Ahmednuggur, April 10th, 1846. Authority not quoted.
Q. 2. — A Vairdgl of the Ramavat sect died. There are his nephew and a Gurubhau. Which of these will be the heir?
A, — According to the customs and usages of the sects of the VairSgls and the Gosavts, the GurubhaA will be the heir. Ahmednuggur, January 16th, 1849.
Authority not quoted.
(a) Mohunt Mvdhoobun Doss v. Hurry Kishen Bhunj, C. S. A. R- for 1852, p. 1089. W C. W.R.forl864, p. 146.
BK.i,CH.vi,8.1,Q.l.] DISQUALIFIED PERSONS. 575
(4).— THE FELLOW-STUDBNrS DISCIPLE,
Q. 1. — Can a disciple of a Gurubh^A be the heir of a Vair^gl?
-4. — No one can be the heir of a Vairagl except hia im- mediate disciple. If none such is to be found, Government should take the property of the deceased, after defraying the expenses of his funeral. — Ahviednuggur, 1845.
Authority not quoted.
Remark. — Contradicted by the answers to the preceding Questions.
Q. 2. — Can a Vair&gi marry? and can hia wife be his legal heir ?
A, — Marriages are allowed among the Vairagis, and the wife of one of that sect is his legal heir. Ahmednvggar, April 6thy 1846. Authority not quoted.
CHAPTER VI.
PERSONS DISABLED TO INHERIT (a). SECTION 1.— PERSONS DISEASED IN BODY OR MIND. Q. 1. — A man has been blind of both eyes for about 16 years. He lives with his son. The son incurred some debt for the . support of his family, A creditor attached the son's house, which was his ancestral property. The blind father applies for the removal of the attachment. Should it be granted ?
(a) The Smpti Chandrik&, Chap. Y. p. 9, teaches that the epithet * incarable ' being attached only to * disease,' the other qualifications, though not congenital or permanent, exclude if apparent at the time of partition (becoming possible). Loss of caste does not now deprive of heritable capacityi Act. XXI. of 1850. Honarmna v. Timmana Bhat, I. L. R. 1 Bom. 559.
The Boman law, after the establishment of Christianity, deprived heretics of heritable and testamentary rights. See Cod. Lib. L Tit. V. 1. IV.
576 mSQUALTPlED PERSONS. [bl i,cri.vi,8.1,Q.t
A, — If the blindness of the father is not curable he can only claim maintenance. He has no right to the pfroperty, and consequently his application is not admissible* The debt, which was incurred on account of the family^ must be paid from the property of the family.
Ahmediiuggur, October 9th, 1 850.
Authorities. — (1) Vyav. May. p. 161, 1. 5 and 7 (iee Auth. 5) ; (2) p. 164. 1. 6 ; (3) p. 175, 1. 8 ; (4) f . 19, p. 2, 1. 3 ; (5*) Mit. Vyav. f. 60, p. 1,1. 13 1-
" ' An impotent person, an outcast and his issue, one lame, a mad man, an idiot, a blind man, and a person afflicted with an incurable disease, as well as others (similarly disquahfied) must be maintained, excluding them from participation.' 'An impotent person,' one of the third gender (or neuter sex). * An outcast,' one guilty of sacri- lege or other heinous crime. ' His issue,' the offspring of an outcast.
* Lame,* deprived of the use of his feet. * A mad man/ afflicted by any of the various sorts of insanity, proceeding from air, bile, or phlegm, from delirium or from planetary influence. * An idiot/ a person deprived of the internal faculty, meaning one incapable of dis- criminating right from wrong. * Blind,' destitute of the visual organ.
• Afflicted with an incurable disease,' affected by an irremediable dis- temper, such as marasmus or the like." (Chap. II. Sec. 10, paras. 1, 2.) Under the term ** others " are comprehended one who has entered into an order of devotion, an enemy to his father, a sinner in an inferior degree, and a person deaf, dumb, or wanting any organ. (Colebrooke, Mit. p. 360; Stokes, H. L. B. 465).
Remark. — In the case of Baboo Bodhnarain Singh v. Baboo Omrao Bingh, (a) it was admitted that a woman's insanity at the time of her mother's death excluded her from the inheritance, but opened it to her sons. (6) In Dace v. Poorahotum Gopal{c) it was ruled that a blind widow does not succeed to her husband's property. In the case at 2 Macn. H. L 42, it is not specified whether a son, excladed in favor of a daughter, was insane from birth or not. In Coleb. Dig. Bk. V. T. 320, 321, 326, 331 Comm., Jagannajha seems to contemplate the defect that excludes as congenital, though it is not so stated; and so as to blindness and lameness. In the present case, the pro- perty having actually vested, the texts cited do not seem to deprive
(a) 13 M. I. A. 610.
{b) See also Preni Narain SiTigh v. Paraeram Singh, L. R. 4 I. A. 105
(c) 1 Borr. R. 453.
Bi.i,OH.Ti,8.1,q.2] DISQUALIFIED PERSONS. 577
the owner. The answer to the next question appears equally applic- able to this one. In Musst. Balgocinda et cU v. Lai Bahadoor et al (a) it is ruled that subsequent insanity does not cause a forfeiture. See Introduction to Book I. p. 155, supra.
Q. 2. — A blind man inherited certain property. It cannot be ascertained whether he and his brothers have separated. Are the blind man's sons and brothers entitled during his life-time to take the management of the property into their hands f
A. — The Sastras do not provide that a blind man may be dispossessed of his property. If he is unable to take care of the property, those who are united in interests with him, as his brothers and sons, have a right to take charge of it*
Poena, January IQth, 1845.
AuTHORmEs.— (1*) MitAksharft, f. 60, p. 1, 1. 13 {see Chap. VI. Sec. 1, Q. 1) ; (2*) Mit. Vyav. f. 60, p. 2, 1. 7 :—
" But their sons, whether legitimate or the offspring of the wife - by a kinsman, are entitled to allotments, if free from similar defects." (Coleb, Mit. p. 363 ; Stokes, H. L. B. 457.)
Remaeks.—I. If the man was blind at the time the inheritance would have devolved upon him, that circumstance would, according to some opinions, act as a disqualification. See, however, the cases noticed under the head " Persons disqualipisd to ikhertt," in tho Introduction. Only sons by birth and Kshetrajas are mentioned as taking the place of a disqualified father, not sons by adoption. His sons, if he had any, would take his share.
2. In Bengal it was ruled that a son bom to a deaf and dumb man after the grandfather's death could not inherit .(&) See the case of Bahoo Bodhnarain Singh v. Baboo Omrao Singh, (c) above, as to a woman's insanity. A blind woman may dispose by will of property to which she is absolutely entitled, {d)
(a) C. S. D. A. R. for 1854, p. 244.
(6) Pareshmani Dasi v. DinancUh Bas, 1 Beng. L. R. A. S. C. 117. (c) 13 M. I. A. 519.
{d) Bai Benkor v. Jeshankar, Bom. H. 0. P. J. for 1881, p. 271. 73 H
578 DISQUALIFIED PEBSOXS. [m.i,cilti,8J^5.
Q* 3. — O^n a man clajm a share of his BinceBtnl properly, if he ia not completely blind?
A. — A man not completely blincl does not forfeit his right to a share. — Euinagherry , December 12ih, 1850.
AuTKOBiTT.— Vyav May. p. 161, 1. 5.
Bemarrs. — 1. For the ^dstras mention only a Bldtd man as nnfift to inherit. See the definition of ' a blind man' in the passage of the Mit&k8har& qaoted under Q. 1.
2. For the Bengal Law, see Mo7te9h Chtmder Boy ei clIy, Chwuder
Mohun Boy et al, (a)
Q. 4 — A man was bom lame* The creditors of his brothers having obtained decrees against them attached the property of the family. The lame man has filed a snit for the removal of the attachment from a portion of the property alleged to be his share. The question is, whether a lame man can claim his share of the common property at a time when he is about to be deprived of maintenance ?
A. — A suflScient means of maintenance should be reserved for the lame member of the family, and the rest sold for the satisfaction of the decrees of the creditors, (i)
Butnaglierry, May I9th, 1853.
Authorities.— (1) Vyav. May. p. 161, 1. 5 {see Auth. 2); (2*) Mii. Vyav. f. 60, p. 1, 1. 13 {see Chap. YI. Sec. 1, Q. 1).
Q. 5. — If a man's brother's son is afflicted with black leprosy, can he claim his share of the family property from his uncle, who is united in interests with him ? If not, can his mother claim it ? If neither can, will it be obligatory upon the uncle to support the mother and her son affected with the
(a) 23 C. W. R. 78.
(b) This and other eases of maintenance are discnssed in Ldkshman v. Saiyabhamabai, I. L. E. 2 Bom. 494, to the effect that the active members may deal with the whole property in honest transactions for the common benefit. See above, pp. 248, 263, 264.
M.i,cH.Ti,8.1,q.6.] DISEASED PERSONS. 579
disease ? If tte stare which they otherwise would have claimed is not sufficient to provide a suitable maintenance for them, can the uncle be obliged to make it up from his own means ?
A. — A person, afflicted with black leprosy, and his mother have no right to any share. If the share which would have fallen to them is not sufficient to provide a suitable mainte- nance for them, the uncle must make it up from his own means. — Butnaghenif, August Ist, 1855. (a)
Authorities.— (1*) Mit. V5rav. f. 60, p. 1, 1. 13 {see Chap. VI. Sec 1, Q. 1); (2) Vyav, May, p. 161, 1. 3 and 8 (see Auth. 1); (3) p. 164, 1. 1:—
Devala : " When the father is dead (as well as in his lifetime), an im- potent man, a leper, a mad man, an idiot, a blind man, an outcast, the offspring of an outcast, and a person fravdulently wearing the token (of religious mendicity) are not competent to share the heritage." (Borradaile, p. 133; Stokes, H. L. B. 109).
Remark. — It is only in a virulent form that leprosy disqualifies, (b)
Q, 6. — Can a dumb or a mad man claim the property of his ancestors, or does his claim extend to a maintenance only? Should the persons so defective be married? If they die leaving widows, have their widows the same right of adoption as other widows ?
A* — ^If a person is mad or dumb from the time of his birth, lie cannot claim the property of his ancestors, though he may claim a maintenance from it. There is no objection to a person of this description being married. His widow may adopt a son. — Tanna^ January 20th, 1857.
Authorities.— (1) Mit Vyav. f 60, p. 1, 1. 13 (see Chap. VI. Sec. 1,
Q.l;(2*)f. 60,p.2,1.4:— (a) This case illustrates what is said above, Introd. pp. 238, 248, 249. {b) MiUttAvelayudu v. Parasakti, M. S. R. for 1860, p. 239 ; Anant v.
Bamahai, I. L. R. 1 Bom. 554.
A leper could not inherit in Normandy, nor could he inherit
gavelkind land in England down to tho reign of John. See Elton^s
Ten, of Kent, 96,
580 DISQUAUFIED PBE80N8, [w.i,ca.n^l.^7.
" For Mann sajs : It is 6t, ibat a wise man should gire all of Ihem food and raiment, without stint, to the best of his power; for he who gives it not shall be deemed an outcast." (Mano IX. 202 ; CoUb. Mit. p. 3G3, Chap. II. Sec. 10, para. 5 ; &tokes> H. L. B. 456).
(3*) Mit. VjaT. f. 60, p. 2, L 12 :—
** Their childless wives, conducting themselves aright, most be supported" (a). (Coleb. Mit. p. 363, Chap. IL Sec. 10, p. U ; Stokes, H. L. B. 457).
Rbvabks. — See Q. 2. There is do special role regarding adoptions to be made by the widows of men excluded from inheritance ; but $ee Q. 2, and Mit. Chap. II. Sec. 10, pi. 9, quoted under Q. a If the excluded person cannot adopt so as to give a heritable right, neither, it would seem, can his widow. See Q. 8.
2. A deaf and dumb man having been excluded from an inheritance which was taken by his brother, a son subsequently bom to the former was held not entitled to the share of his father which he might have obtained if bom before his grandfather^s death. (6)
Q. 7. — A deceased person has left a son who is insane. His nephew has applied for a certificate of heirship. Can it be granted ?
A. — As the son is insane, and as the nephew and he are united in interests, there is no objection to the nephew being declared an heir. — Rutnagherry, August 20th, 1846.
AiTTiioRiTr.— Mit. Vyav. f. 60, p. 1, 1. 13 {see Chap. VI. Sec. 1, Q. 1).
Remark.— Subsequent insanity does not cause forfeiture, (c)
(a) Oaiigabai v. Naro Moreshvar et al, S. A. No. 94 of 1873, Bom. H C P. J. F. for 1873, No. 95.
(6) Bapuji V. Pandurang, I. L. R. 6 Bom. 616, diing KcUidms Da$ v. KrishanChundra Das, 2 B. L. R. 103 P. B. See Q. 8. The blood is in a manner attainted as under the English common law in a case of treason or felony, but only as to rights of inheritance subsequently arriving at completion.
(c) Must- Balgovinda et al v. Lai Bahadoor et aU Gale. S. E. for 1854, p. 244.
BH.i,CH.Ti,8.1,q.8.] INSANE PEBSONS. 581
Q. 8. — A son of an insane S&dra has brought an action for the recovery of certain immoveable property, consisting of land held in Inam and other tenures, alleged to belong to his grandfather. The question is, whether he has a right to do so?
A. — A son of an insane person has a right to sue for the recovery of immoveable property of his grandfather.
Tanna, October SOth, 1856.
Authorities.— (1) Mit. Vyav. f. 60, p. 1, 1. 7 (see Chap. II. Sec. 1, Q. 1); (2*) f. 60, p. 2,1.7 :-
•'The disinherison of the persons above described seeming to imply disinherison of their sons, the author adds : Bat their sons, whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects." (Colebrooke, Mit. p. 363, Chap. II. Sec. 10, para. 9 ; Stokes, H. L. B. 457.)
Remarks. — It has been ruled that a man having been disqualified when the succession opened, his sons not then bom or begotten are also excluded from the inheritance, (a)
2. In the case of Bam Soondar Boy v. Ram Sdhaye Bhugutf (h) a suit was broaght on behalf of a lanatic to set aside a sale of family property by his son. Had the lanatic been sane his sait would have been barred by limitation. It was held that as he was entitled only to maintenance under Mit. Chap. II. Sec. 10, paras. 6 and 9, he had not a locus standi to sae for the property of which in a partition he would get no share. His suit was dismissed. In Bombay it is probable that if any fraud on his right could be proved his main- tenance would be made a charge on the estate, (c)
(a) Pareshmani Dasi v. Dinanath Dass, 1 B. L. R. 117 A. C. ; Kalidas Das et al v. Krishan Chundra Das, 2 B. L. R. 103 F. B. See Mit. Ch. II. Sec. X. paras 9-11; Datt. Chand. Sec. YI. para. 1 ; Ooleb. Dig. Bk. V. Chap. V. T. 320, 326 Comm ; Vishnu, XV, 36, 36. By custom in some castes adoption by a disqualified person or by his wife on his behalf, with or without the consent of relatives or of the caste, is allowed. See Steele, L. 0. 43, 182.
(b) I. L. R. 8 Cal. 919.
(c) See above, pp, 2^, 264.
582 DISQUALIFIED PERSONS. [BK.i,CH.Ti^.8,q.^,
SECTION 2.— ILLEGITIMATB CHILDREN (a).
Q. 1. — Can an illegitimate son of a deceased Gnjarilthl Brahman succeed as a legal heir to his property, when there is no other heir of the deceased f
A. — An illegitimate son of a Brahman, a Kshatriya, or a Vaisya, cannot be a legal heir of his father. He and his mother, if well behaved, can claim a maintenance only front the property of the deceased. The rest of the property should be given to the Sapinda relations. If the property belongs to a learned Br&hman, it should, in the absence of relations, be given to learned Br^hmans. A king has a right to take intestate property when it does not belong to a learned Br&hman. — Ahmednuggur, September 23rd, 1847.
Authorities. — (1) Manu IX. 155 {see Auth. 2) ; (2*) Mit. Vyar. f. 5'>, p. 1, 1. 11 {see Chap. II. Sec. 3, Q. I); (3*) Vyav. May. p. 140, 1. 1 {see Chap. II. Sec. 14 I. A. 1. Q. 1, p. 463).
Bem:a.kk. — At present a 6r&hiiian*s property escheats to the Crown. See Collector of Masulipatam v. Cavaly Venkut Narainapya {b) ; see also Chap. II. Sec. 3.
Q. 2. — A Brahman died without male issue. A '' Sapinda'' relation of his performed his funeral rites. The deceased has left three sons by a kept woman. They alleged that they rendered useful service to the deceased, and obtained from him the gift of his property. In support of this
(a) In the case of Muttuswamy Jajavera Yetiappa v. Vencaiaswara Yettaya^ 12 M. I. A. 203, a maintenance was awarded to an illegiti- mate son of a brother. An illegitimate son of a Khatri, one of the throe regenerate castes, by a 6(idra woman, cannot succeed to the inheritance of his putative father, but is entitled to maintenance out of his estate, Chicoturya Run Mivrdun Synv, Saheh Purhulad Stfn, 7 M. I. A. 18. The child of an incestuous intercourse has no right of inheritance, D. Parisi Nayudu v. D. Bangaru Nayudu, 4 M. H. C. R. 204; nor has the child begotten in adultery, see pp. 83, 415, supra ; Rahi V. Gov hid, I. L. R. 1 Bom. 97. But he is entitled, among the Sudras, to maintenance out of his father*s estate, Viraramuthi Ud^xyan V. Singaravelu, I. L. R. 1 Mad. 306.
{b) 8 M. 1. A. 500.
BK.T,CH.vi,8.8,q.l.] ENEMY TO FATHER. 583
allegation they have no documentary evidence to adduce. Who should be considered the heirs ? the sons or the *' Sapinda'^ relations who performed the funeral rites ?
A. — ^The son of a woman kept by a man of the Brahman, Kshatriya, or Vaisya castes, cannot be his heir. With re- gard to these three castes, a relation of a deceased person is his heir. If an illegitimate son of any of these castes be a useful servant, he may be allowed a suitable maintenance. He can also keep whatever property the deceased may have given him in free gift. In the case under reference, the sons could not produce any documentary evidence to prove the alleged gift, and as a gift of this kind would not be legal, the sons cannot be considered the heirs of the de- ceased^ but if they are obedient servants, they may be supported. — Tanna, 1847.
AuTHORrriES.— (1*) Mit. Yyav. f. 65, p. 1, 1. II (see Cbap. II. Sec. 3, Q. 1 ; (2») Yyav. May. p. 140, 1. I («eeOhap. II. Sec U I. A. 1, Q. 1, p. 463).
Remarks. — 1. If it could be proved that the deceased had made a gift of his property to his illegitimate sons, the gift would be legal, since an unmarried man may do what he likes with his pro- perty.
2. A man of one of the superior castes may make a grant to an illegitimate son for his maintenance, which an after-bom legitimate son cannot disturb, (a) The rule is general as to any gift completed by possession. (6)
SECTION 3.— PERSONS LABOURING UNDER
MORAL DEFICIENCIES.
a.— THE ENEMY OF HIS FATHER.
Q. I. — A father says tbat his son isinimically disposed towards him; that he not only abuses him, but assaults
(a) Rajah Parichat v. ZaUm Singh, L. R. 4 I. A. 159.
[b) Bambhat v. Lakshman, I. L. R. 5 Bom. 630; see above, p. 263-
684 DISQUALIFIED PERSONS. CBK.i,CH.vi,iJI,Q.l.
him^ and threatens him with death ; that he once actaally attempted his life and drove him oat of his house, telling him to perform the Sr&ddha of his grandfather in a temple ; that he is very ignorant and has dissipated a good deal of the ancestral property ; and that if a share of property should now be given to him he would squander it also. The father therefore wishes that his son should not be allowed to claim a share of his property, but a maintenance only. Sup- pose the father has shown that certain of his accusations are substantially true, should the son therefore be prohibited from claiming a share, and should it be decided that he could claim nothing more than a maintenance ? K, on the contrary, it appears that the father hates the son, and con- trives to deprive him of the share of the property, that he abuses and assaults his son, and that what the son does is merely in self-defence, can the son then claim a share of the ancestral property from his father ? What is the defini- tion of enmity towards one's father ? and is a person enter- taining it to be deprived of all share in his father's property only, or in all property, whether it be his father's or that of his ancestors ?
A. — A person who entertains enmity towards his father, (a) and the one who labours under the defect of impotency, Ac., are precluded from claiming shares. If the son is shown to be ill-disposed towards his father, or insane, or too ignorant to be trusted with property, he cannot claim any share, bnt maintenance only. If the father hates, abases, and assaults his son, and the son does the same for self-defence, he cannot be said to be the enemy of his father. If the father contrives to deprive him of his rights, the father must be considered the enemy of his son. If the enquiry into the matter shows that the son is not an adversary of his father, he can claim from his father a share of the property of his ancestors. The enmity towards one's father is not exempli-
(a) A flEkther cannot disinherit a son properly adopted except for special reasons, Daee v. Moihee Naihoo, 1 Borr. at p. 87.
BJLi,CH.vi,8.8,Q.l.] ENEMY TO FATHER. 685
fied in the S&stras^ but it is merely said that a son who hates or injures his father is his enemy (a).
Rutnagherry, August 24ith, 1850.
Authorities.— (I*) Mit. Vyav. f. 60, p. 1, 1. 13 (see Chap. VI. Sec. 1, Q. I) ; (2*) f. 60, p. 1, 1. 7 {see Chap. II. Sec. 1, Q. 1); (3) Vyav. May. p. 161, 1. 8 {see Auth. 1) ; (4) p. 94, 1. 1 ; (5) p. 94, 1. 2 (see Auth. 2); (6) p. 84, 1.4; (7) p. 91, 1.2:-
" The fother and sons are equal sharers in houses and lands deriv- ed regularly from ancestors ; but sons are not worthy (in their own right) of a share in wealth acquired by the father himself, when the fiither is unwilling." (Borr. p. 64 ; Stokes, H. L. B. 48).
Remarks.— -1. A son by birth or adoption can, for adequate reasons, be disinherited; but the course of devolution prescribed by the law cannot be altered by a private arrangement ; on the son's disheri- son the son's son becomes his grandfather's lawful heir. (6)
2. A son was disinherited and afterwards restored, in MtLsst. Jye Koonujar v. Bhika/ree Singh, (c)
3. The sons of outcasts bom before their fathers' expulsion are not outcasts but take their fathers' places. Sons born after expulsion are outcasts, but Mitramisra says a daughter is not, for "she goes to another family," Vlram. Tr. p. 254. {d) That man is in a special degree an enemy of his &ther who cannot or will not perform the religious ceremonies by which the father is to benefit, see Coleb. Dig. Bk. V. T. 320, Comm. Oomp. Vlram. Transl. p. 256.
(a) *'Jure etiam pro tacite exheredato habebitur qui grave crimen commiserit in patrem si nuUa simt condonaim cxUpae vndida,*' Grot. L. n., 0. VII. 25, and the references to the Civil Law. Transla- tion :— " He is also held as tacitly disinherited by operation of law, who has been guilty of a grave offence against his father, there being no proof of subsequent condonation." The Roman law imposed no restraints on an unamiable father. At Athens it seems to have been much the same down to Solon's times. Thenceforward public notice of disinheritance had to be given. See Schoemann, Ant. Gr. 602. Zachariae His. J. Graec. Bom. Tit. II. shows the gradual modifica- tions of the patria potestas.
(h) BcUkrishna v. Savitribai, I. L. R. 3 Bom. 64.
(c) 3 Mor. Dig. p. 189, No. 27.
{d) With this may be compared the early English law exempting already bom children from their father's outlawry which the after- born ones had to share. See Bigelow, Hist, of Proc. p. 348. 74 H
586 DISQUALIFIED PERSONS. CBK.i,cH.vi,a^,q.S.
6.— PERSONS ADDICTED TO VICE.
Q. I. — ^A man has a son, but as he was addicted to gambling and opiam-eating^ the father has constituted his grandson his next heir. Can he legally do so ?
A. — It is quite legal for the father to disinherit his son on the ground of his misconduct, and to appoint his grandson to be his heir. — Ahmedabad^ March 1th, 1856.
AuTHOEims.— (1) Mit. Vyar. f. 45, p. 2, 1. 8 ; (2») Mit. Yyav. f. 60, p. 1, 1. 13 («ee Chap. VI. Sec. 1, Q. 1) ; (3) VysT. May. p. 163, 1. 3 .—
" If there be other boob endowed wifch good qnalities the inheritance is not to be taken by a viciouB one ; for says Manu — 'all those brothers who are addicted to any vice lose their title to the inherit- ance.' " (Borr. p. 132; Stokes, H. L. B. 109.)
Remabk. — This opinion has in Beveral forms been repeated in other cases. It cannot however be received without a safeguard against caprice and an appeal to the Civil Court. See 1 Str. H. L. 157.
Q. 2. — A Paradesi had acquired some moveable and im- moveable property before his death. Ho had a wife and two sons. One of these sons was addicted to gambling and other vices. He contracted some debts and died. The property of the Paradesi was not divided. His deceased son had ac- quired no property. The question is, whether the creditor of the deceased son can recover the debt from the Paradesi's pro- perty ? The mother of the deceased son states that her son was a man of bad character, and therefore he was not entitled to any share of his father's property. Is her objection legal ?
A, — ^The son was addicted to gambling and other vices. The debt contracted by him was not on account of the family. The creditor cannot therefore have his claim satisfied from the deceased's share of the common property. The objection of the mother that her son is not entitled to any of the father's property is YdXiA^-^Khandesh, August 7th, 1849.
Rbmaek.— fifce the preceding case. "The father shall not pay his sons' debts ; but a sod shall pay his father's." N&rada, Part 11. Chap. III. sL 11 ; so held in the case of Udaram v. Banu Pandttji et aX. (a)
(a) 11 Bom. H. C. R. 76.
BK.i.CH.vi,8.8b,<i^.] PEESONS ADDICfTED TO VICE. 687
Q. 3. — A man had four sons. One of them was a man of bad character. The father therefore excluded him from all participation in his property, and left a direction in his will that the share due to him should be given to his son. The son protested against the validity of the will on the ground that his father was 60 years old at the time of the will, that his hand used to shake, and that the will does not bear hie signature. Is it lawful in a father to assign only maintenance to his son^ and to bestow his share upon his grandson 7
A, — A father is at liberty to distribute the property ac- quired by himself among his sons in such a manner as he pleases. If one of his sons is insane, or addicted to vicious habits, or hostile, or disobedient to his father, he cannot be allowed a share of his father's property, but a maintenance only. His share would properly be given to his son. The will is not invalid merely because the father being very old could not sign it himself, but desired some other person to sign it for him. — Ahmednuggur, January 25th, 1859.
ATTTHORniES. — (1) Yyav. May. p. 163, 1. 3 {see Chap. VI. .Sec. 3 b, Q. 1) ; (2) p. 161, 1. 7 and 8 ; (3) f. 47, p. 1,1.7; (4) f. 47, p.' 2, 1. 15 ; (5) f. 46. p. 2, 1. 2 ; (6) f. 50, p. 1, 1. 1 ; (7) f. 22, p. 1, 1. 2 ; (8) f. 32, p. 1, 1. 9 ; (9) f. 32, p. 2, 1. 5 and 8 ; (10) f. 60, p. 1, 1. 13 {see Chap. VI. Sec. 1, Q. 1); (11) Mit. Vyav. f 60, p. 2, 1. 1 :--
N&rada also declares : — ** An enemy to his father, an outcast, an impotent person, and one who is addicted to vice, take no share of the inheritance, even though they be legitimate; much less if they be sons of the wife by an appointed kinsman." Mit. Ch. II. Sec. X. para. 3. (Colebrooke, Inh. p. 361.)
Remakk. — ^The father has no right to disinherit any one of his sons without reason, and consequently a will to this effect is void accord- ing to Hindti Law. {See Bk. II. Chap. I. Sec. 2, Q. 4, 5, 8.) Mitra- misra quotes Apastamba to the effect that an outcast is deprived of his right to inherit, and Brihaspati and Manu {see Q. 1) to show that a son incapable of ofForiug funeral oblations is disqualified for the inheritance which is the proper remuneration for the perform- ance of this duty. "Those," he says, "who are incapable of per- forming the rites enjoined by the Sruti and the Smriti, as well as those that are addicted to vice are disentitled to shares.^' Viram.
588 DISQUALIFIED PBBfiONS. [BK.i,CH.Ti^Aj,qJ.
Transl. 256. Henoe degradation from caste caused an extinction of property, (a) bnt withoat serving as a cause of retraction when the share had once been assigned and taken, (b)
c,— ADULTERESSES AND INCONTINENT WIDOWS.
Q, 1. — Can a man's wife, who has been guilty of adultery, lost her caste and lefb her husband^ be his heir ?
A. — If the ceremony of Ghatasphota (divorce) has been performed, the wife cannot be the heir.
AhmednugguTf June Vlih^ 1846.
Authority. — ^Vyav. May. p. 134, 1. 6 :—
'' The wife, faithful to her husband, takes his wealth ; not if she be unfaithful ; for it is declared by K&ty&yana : — * Let the widow succeed to her husband's wealth, provided she be chaste.' '' (Borr. p. 100 ; Stokes, H. L. B. 84.)
Remark. — A wife guilty of adultery cannot inherit from her hus- band, whether the Qhataspho^ has been performed or not. But there mast be positive proof or at least very voeU grotmded suspicion, (c)
Q. 2. — Can the wife of a deceased VairiLgl, who forsook him without obtaining a written permission from him, and condacted herself as a prostitute for 12 years, become his heir?
A.—No.—Dharwar, March 16th, 1860.
Authorities.— (1) Mit. Vyav. f. 56, p. 2, 1. 6; (2») Vyav. May. p. 134, 1. 6 (see Chap. VI. Sec. 3 c, Q. 1).
Q. 8. — ^A widow bore a son two years after her husband's death. Can she claim the property of her husband ?
A. — A widow of bad character has no right to claim the property of her husband. — Dharwar, May lOth, 1850.
(a) See P. C. in Moniram Kolita v. Kerry KolUany, L. B. 7 I. A. at p. 146. (6) Ibid, (c) Eamia v. Bhgi, 1 Bom. H. C. B. 66.
BK.i,CH.vi,8.3c,(i.8.] INOONTINBNT WIDOWS. 589
Atjthorities.--{1) Mit. Vyav. f. 66, p. 2,1. 5; (2*) Vyav. May. p. 134, 1. 6 {see Chap. VI. Sec. 3 c, Q. 1.)
H|gi>*ARTg. — See below, Q. 6, Remark.
Q. 4. — ^A deceased person has left distant cousins, the descendants of the fourth ancestor, and a widow, who, on account of her incontinency and pregnancy after the death of her husband, has been refused communication with the caste. Which of these will be his heir ?
A. — Should the cousins and the deceased have lived together as an undivided family, the cousins will be the heirs. If they were separate, the widow of the deceased, notwithstanding her bad character, will be the heir*
Poona, August Slst^ 1848.
Atjthoeitibs.— (1) Mit. Vyav. f. 66, p. 2, 1. 1 ; (2) f. 60, p. 2, 1. 2; (3*) Vyav. May. p. 134, 1. 6 {see Chap. VI. Sec. 3 c, Q. 1).
Bemahk.— The widow cannot inherit If she has been guilty of adultery before her husband's death. For the effect of her inconti- nence after his death, see Q. 6.
Q. 5. — Can a Brahman widow, who is guilty of adultery claim her husband's vatan ?
A. — No ; by her misconduct she has forfeited her right.
AhmednugguTy 1845. Authority.— Vyav. May. p. 134, 1. 6 {see Chap. VI. Sec. 3 c, Q. 1).
Q. 6. — A woman of the Dorik caste, having lost her husband, became the mistress of a man of (another) S&dra caste, and had a daughter by him. Can she claim to be the heir of her husband ?
A* — ^A woman who was chaste at the death of her husband becomes his heir. — Khandesh, January 4}th, 1851,
AuTHOJEUTT.— Vyav. May. p. 134, 1. 4; Mit. Vyav. f. 65, p. 2, 1. 1 (see Chap. I. Sec 2, Q. 4).
690 DISQUALIFIED PERSONS. [BK.i,CH.vi,g5c,q.fl.
Rebcarss— 1. According to Strange, El. H. L., adultery divests the right of a widow to inherit after it has vested. See Steele, 36, 36, 176.
2. On the other hand, the S&stri's opinion seems to be supported by the Vlramitrodaya, where it is said, f. 221, p. 2, 1. 8 : — ** And these persons (those disabled to inherit) receive no share only in case the fault was committed or contracted before the division of the estate. But after the division has been made, a resumption of the divided property does not take place, because there is no authority (enjoin- ing such a proceeding)." It is only through an extension by infer- ence of the rule of exclusion that it is made to include females, who are therefore equally entitled to the benefit of the exception with the males specified, see Vir. Transl. 253, which allows an outcast to re- cover his rights by performing the proper penance. See Mit&ksbar4, Chap. II. Sec. 10, pi. 6; Stokes, H. L. B. 456. Colebrooke, quoted in 2 Strange, H. L. 272, lays down the principle that after the estate has once vested it can be forfeited only by loss of caste. A woman would in general be expelled from caste for proved incontinence, and hence Sir T. Strange (p. 164) has inferred that a widow holds " dum casta fuerif* only ; but the authorities quoted by Colebrooke do not support the view that any forfeiture of property necessarily attends expulsion from caste. It would follow as a necessary consequence in the case of a member of an undivided family, as all the property would be appropriated by those members who remained in communion with the caste; but this would not be so in the case of a separated per- son, (a)
3. The Mit&ksharft, while it excludes the outcast from participa- tion, adds : — " But one already separated from his coheirs is not deprived of his allotment," Mit. Chap. II. Sec. 10, pi. 5, 6 ; Stokes, H. L. B. 456. And now by Act XXI. of 1850, expulsion from caste causes no deprivation of any right of inheritance. At the same time a wi- dow, who remarries, forfeits her widow's estate under Act XV. of
(a) Under the English Law, Freebench, as it is called, ** is gene- rally an estate for life. In many manors it is forfeited by inconti- nencyor a second marriage .... If a widow is found guilty of inoontinency she loses her freebench unless she comes into Court riding upon a black ram and repeats certain words," 1 Cruise's Dig. 285.
The widow takes as dower a moiety of gavelkind lands, but her estate is divested by her remarriage or iucontinency. Elt. T. of Kent, 87.
Bi.i,CH.vi,8^c,q.6.] INCONTINENT WIDOWS. 591
1866. Thus subsequent unchastity does not divest her, but remar- riage does, (a) In the case at 2 Macn. Prin. and Prec. of Hindii Law, 19, the ^ftstri seems to have held that subsequent incontinence defeat- ed the widow's estate, but " an estate once vested by succession or inheritance is not divested by any act which before succession or incapacity would have formed a ground for exclusion from inherit- ance." (b)
4. Subsequent unchastity does not divest an estate vesting in a mother, (c) In the case of Advyappa v. Btidrava, {d) it is ruled that incontinence does not affect a daughter's succession to her father's estate among Ling&yats. See same case, p. 118, as to the similar rule in the case of a mother. This was followed in Kojiyadu v. Ijokahmi. (e) The disqualification of an incontinent mother to inherit from her son is expressly declared in Ranmath v. Durga. (/) It does not prevent a widow's inheriting from her maternal grandmother, {g) Inconti- nence is held to prevent one widow getting her share from the other, [h) Compare 2 Macn. H. L. 133, cited in the Introduction ; compare also the case under the Bengal Law of two daughters inhe- riting jointly from their father, and on the death of one leaving a son while the Other is a childless widow, the latter's inheriting, notwith- standing a state has supervened which would have originally been a disqualification, {i) The daughter's right to inherit arises in case of a disqualification of the widow through incontinence. Smriti ChandrikA, Chap. X. Sec. 2, para. 22.
6. In Hcmamma v. Timandbhat et al, (j) it is laid down that a bare maintenance awarded as such is not forfeited by subsequent
(a) Parvati v. Bhiku, 4 Bom. H. C. R. 25 A. C. J. ; Abhiram Das y. Shrvram Das et al, 3 Beng. L. R. 421 A. C. ; S, Matangini Debi v. 8. Jaykali Debit 5 ibid» A^Q,
{b) P. C. in Moniram Kolita v. Kerry Kolitanyy L. R. 7 I. A. 115, in appeal from 13 Beng. L. R. 1. So Bhawani v. Mahtab Kuar, I. L. R. 2 AIL 171; Nehah v. Kishen Loll, I. L. R. 2 All. 150.
(c) Mu88t. Deokee v. Sookhdeo, 2 N. W. P. R. 361.
(d) I. L. R. 4 Bom. 104.
(e) I. L. R. 5 Mad. 149. (/) I.L.R.4 0alc. 560.
(g) MuasU Ganga JaU v. Ghasita, I. L. R. 1 All. 46. (h) Rajkoonwaree Dassee v. Golabee Dassee, 0. S. R. for 1858, p. 1891. (i) Vyav, Darp, 170 ; Amrit Ld Bhoee v. Bajoneekani Mitter, L. R. 2 I. A. 113. 0) I. L. R. 1 Bom. 559.
692 DISQUALIFIBD PERSONS. [BK.i^iLTi,gJ.c,q.6.
inoontinenoe. Sir T. Strange, 1 H. L. 172, thought it was doobtfal. At 2 Str. H. L. 310, Golebrooke, referring to MitAksharft, Chap. IL Sec. 1. p. 17, says that brethren are not bound to maintain the unchaste widow of their childless brother. Several cases to the same effect are cited in Norton, L. C 37. The Yyayah&ra MaytUcha, Chap. IV. Sec. 8, pi. 6 and 8, imd the Mit&kBhar&, Ch^. 11. Sec. 1, pi. 1, relying on a passage of N&rada, seem to consider that unchas- tity, distinguishable from the mere perverseness of pi. 37, 38 of Mit&ksharft, Chap. 11. Sec. 1, causes a forfeiture of the right to maintenance. So too the Vtram. Tr. p. 14>3, 153, 174, 219, and the Smpiti Chandrikft, Chap XI. Sec. 1, par. 49. GkKxl character is insisted on as a condition of the right by the ^stri ; above p. 354, Q. 25. The distinction between the two degrees of misconduct is very clearly taken in Mit&ksharft, Chap. II. Sec. 10, pi. 14, 15 {see also Coleb. Dig. Bk. V. T. 414, Com.), from which it appears that in the case of wives of disqualified persons, those merely perverse or headstrong, must be supported, but not those actually unchaste. The case of an adulterous wife and mother are provided for by special texts, and Mitrami^ insists on the distinction, Yiram. Tr. p. 153. The outcast mother is not outcast to her son, and the outcast wife is not a tres- passer in her husband's house (a) though to be kept apart : N&rada, Pt. II. Chap. XII. si. 91; Manu, cited in 2 Macn H. L. 144. In his answer to Chap. IV. B. Sec. 1, Q. 1, the ^stri seems to have consi- dered that a woman of abandoned character could claim no more than maintenance out of her mother's estate. A share or an allow- ance assigned to a widow in an undivided &mily by way of mainte- nance is resumable on her grossly misbehaving, according to the Smfiti Chand. Chap. XI. Sec. 1, paras. 47 and 48. The view here taken has very recently been confirmed by the decision in Valu v. Oanga {h) in which the Court declined to follow Honamma v. TiriKmcUfhcU.
6. The adulteress may claim bare subsistence from her husband only, Smfiti Chand. Chap. XI. Sec. 1, para. 49, but not while she lives apart, (c) nor can a woman, who has obtained a Soda-chiti (divorce)
(a) Th9 Queen v. MarimiUu, I. L. E. 4 Had. 243.
(h) Bom. H. C. P. J. 1882, p. 399.
(c) A claim for maintenance by a wife was disallowed, she not hav- ing shown sufficient reason for her desertion or absenting herself from her husband, Nwrmada v. Qaneeh Narayen SJiet, Bom. H. C. P. J. for 1881, p. 215. This applies equally to any wife wrongfully with- drawing, Kaaturbai v. Shivajiram Bevkwrar^ I. L. B. 3 Bom. at p. 382.
y
M.i,cir.7i,a.9c,q.0.] INCONTINENT WIDOWS. 593
from her hasband, sue liiin for maintenanoe. (a) An nnjufitified withdrawal from her husband suspends her right ; (h) a severer rule applies to a wife guilty of other misbehayiour. (c) A daughter living apart from her father for no sufficient cause cannot exaol maintenance firom him (d).
7. It is an offence punishable under the Penal Code, Sec. 494 as to the woman, under Sec. 497 as to the man, to marry the wife of a Hindd not divorced and without the first husband's consent. Beg. V. Bdi BUpd. (e) A woman thus married is entitled to maintenance (as a concubine,) Khemkor v. UnUcuhcmkar ;{/) so is a concubine, Vrandavandas v. Yemanabai, (g)
(a) Bhasher v. Bhagu, S. A. No. 298 of 187(5, Bom. H. C. P. J. F. for 1876, p. 273. A divorced woman is not entitled to maintenanoe, Muttammal v. Kamakshy Ammal etal,2 Mad. H. C. R. 337.
(6) Mudvallappa v. OfM-satcwa, S. A. No. 307 of 1872, Bom. H. 0. P. J. F. for 1872, No. 1 ; Narmada v. Ganesh Naranyanshet, snpra ; Viraswami CheUi v. Appaswami Chetti, 1 M. H. G. R. 375 ; Sidlin- gapa v. Sidava, Bom. H. C. P. J. File for 1878, p. 77 ; S. A. No. 307 of 1872 ; Mudvalappa v. Gu/rsataoa, B. H. C. P. J. File for 1873, p. 1, According to Steele, L. C. p. 32, repudiation without mainten- ance is allowable only in those cases which involve complete loss of caste, such as adultery with a man of lower caste, procuring abor- tion, or eating forbidden food. In other cases a penance restores the erring wife to her position. Should the husband desert his wife she is entitled to maintenance to the extent of one*third of his property, Bamabai v. Trimbak Ganesh Desaif 9 Bom. H. G. R. 283, and Gangaha v. Naro Moreshwar, Bom. H. G. P. J. for 1873, No. 96. See Goleb. Dig. Bk. lY. T. 72. In the answer at 2 Str. H. L. 309, the S&stri says that a son must give his mother a bare subsistence even though she be an adulteress. Golebrooke quotes the Mit. Gh. II. Sec. 1, para. 7, to show that brethren are not bound to maintain their brother's un- chaste widow. He doubts if there is an authority imposing on the son a legal obligation to support an adulterous mother ; but Manu and other I'ishis prescribe the duty under all circumstances. See above, pp. 263, 356, and Manu II. 225, 235.
(c) Shiripui v. Bddkdbdi, Bom. H. G. P. J. F. 1881, p. 163 ; Narmada V. Ganesh Narayan, supra.
{d) llata Shavdtri et al v. lUda Narayanan Nambudiri, 1 M. H. G. B. 372.
(c) See to the same eflTect Beg. v. Kassan Goja, 2 Bo. H. C. E. 117.
(/) 10 Bom. H. C. R. 381.
ig) 12 Bom. H. C. E. 229. 75 H
594 DISQUALIFIED PERSONS. [bk.i,ch.ti,s^.c.<ij8.
Q. 7«— A widow, who had no sons, and who was faithless to her hosband, assigned her husband's immoTeable pro- perty as security for a debt due to his creditor. Her sister-in-law objected, on the ground of the inability of a fiuthless wife to mortgage her husband's property. What are the rules of the Sastras on the subject ?
A. — ^A woman, who has no sons and is guilty of adultery, cannot have any claim to her husband's moveable or immove- able property, although he may have lived separate from other members of his family. Those, who are his legal heirs, entitled to take his property, should liquidate his debt.
Ahmednuggar, September 3ri, 1847.
Authorities.— (1) Vyar. iMay. p. 134, 1. 6 (we Chap. "VT. Sec. 3 c, Q. I); (2) p. 135, 1. 7; (3) p. 155, 1. 5; (4) p. 159, L 5; (5) p. 181, L 5 ; (6) Mit. Vyav. f. 12, p. 1, 1. 10.
Q. 8 — Can a widow, who has re-married, inherit the pro- perty of her former husband ? If the widow has some children by her first husband, and if they are left under the protection of her husband's brother, can the brother in his capacity of guardian claim his deceased brother's property, or should it be given to his widow who has re-married ? •
-4.— A widow, who re-marries, cannot be considered a faithful wife. She cannot therefore claim the property of her first husband. If she has some children by her first husband, and if they are lefk with her husband's brother, he can claim the property of the deceased.
8adr Addlat, July SOthj 1849.
Remam.— The case would fall under Act XV. of 1856, and the S&sfcri's decision seems to agree with Sec. 2 of that Act. See also Chap. II. Sec. 6 B.
o
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