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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 \ 

VlF.o 



4, 



FEB i 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 



,, 


... 


332 


,, 


«.• 


617 


,, 


617, 


657 


,, 


..• 


101 


,, 


• •• 


313 


• • 


.«• 


172 


,, 


... 


1098 


.260 


,261, 


262 


, 


612, 


616 


• 


• *• 


679 


•• 


105, 


443 
fit 


Pona 


mm la 
610, 


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&bh&shya.— 

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. 



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. 


Pag€ 


J 612 


f» 


96 note (a) line 4/or Bram- 








moge read Brammoye. 


*> 


629 


99 


169 note {b) for Tevan read 








Tevar. 


»» 


653 


»» 


201 note (a) line 6, aftei^ p. 350, 








i>iser< S. 0. I. L. R. 7 


»» 


664 




Bom. 188. 






» 


202 note (e) last line add S. 0. 
I. L. R 6 Bom. 298. 


»> 


681 


>l 


202 note (e) last line addS.C. 








I. L. R. 6 Bom. 298, 


)i 


682 




and 7 Bom. 217. 






»» 


207 note line 4 /or fonnders, 
reflfi founders' . 


i( 


715 


»» 


217 line 2 for conception read 








conceptions. 


»» 


732 


J> 


224 line 4 from- bottom of 








text /(M- 1871 rea(Z 1870. 


}» 


742 


» 


259 line 6 from bottom of text 








after it does insert not. 


iy 


743 


9» 


267 note (c) dele * in the ap- 
pendix.* 






»» 


285 note iJb)for swpra p. 386 
readtw/rapp. 818-19. 


» 


751 


»y 


333 line 11 for Siilka read 








Sulka. 


9} 


777 


*9 


368 line \for the read a. 






J» 


381 line 6 for Maina reflwi 








Manna. 




781 


»> 


443 Remark 3 line 1 for Ra- 




786 




joneek&ut read Eajo- 








neek&nt. 






>» 


604 note line 10 for Bhawat 
read Bhagwat. 


» 


793 


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&bh&shya 
(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 



-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 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 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 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 who had been married before. B 
and 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 
? 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, — 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 ? 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 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 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 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 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^ 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 
the