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i^0(!),
A DIGEST
OF THE
HINDU LAW
OP
INHERITANCE, PARTITION, AND ADOPTION
EMBODYING THE REPLIES OF THE SASTRIS.
WITH
INTRODUCTIONS AND NOTES.
BY
THE LATE SIR RAYMOND WEST, K.C.I.E.,
a Judge of the High Court at Bombay, etc.
AND
SYED H. R. ABDUL MAJID, M.A, LL.D.,
of Oray^s Inn, Barrister-at-Law,
Trinity College, Dublin: LL.D.; Cambridge University: Law Tripos, Pts. I. S
II., and Oriental Languages (Arabic and Persian) Tripos, and Moral Sciences,
Syed Mahmud Prizeman of ChrisVs College ; Calcutta University : Double
Honours (Philosophy and Persian), Graduate Scholar of the Presidency College ;
late Examiner and Lecturer on Mohammedan Law, Colonial Office, London;
Fellow and Lecturer on Hindu, Mohammedan, and Colonial Law, the SociM4
Internationale de Philologie, Sciences et Beaux-Arts, London ; Author of
''England and the Moslem World," '' Tlie Historical Study of Mohammedan
Law," " The Moslem International Law " ; and Translator of " Al-Mowatta of
Malik," from the Arabic and of " The Rubdiydt of Hafiz," etc.
Fourth Edition
OF
WEST & BUHLER.
LONDON :
SWEET AND MAXWELL, LIMITED,
3 CHANCERY LANE, W.C.
1919.
[All rights reserved.]
PKINTED BY
THE EASTERN PRESS, LIMITED,
LONDON AND READING.
PREFACE TO THE FOUETH EDITION.
In order to increase the usefulness of this work, so often referred
to by the Judicial Committee of the Privy Council, the present
edition has been further extended to embrace the principles of the
Hindu Law according to the various Schools in force throughout
India. Book I., which deals with the Law of Inheritance, has been
augmented by the addition of the Succession under the Dayabhaga.
Portions have been re-written or discussed and the matter in
general re-arranged to include the Sources of the Hindu Law and
the works of authority according to the different Schools. The
importance of Benami transactions, which form part of the Hindu
Law in order to assist in the determination as to what property
belongs to a joint family, at least in cases of partition, cannot be
overrated, and consequently a separate chapter has been devoted
to the subject. The extension takes the form of discussing the
principles of law under the several heads according to the various
Schools, with special reference to the important decisions of
the Indian Courts and the most recent rulings of the Judicial
Committee. The formation of Behar as a separate province
necessitated more special attention to the doctrines of the Mithila
School.
Since the publication of the last edition of this work a great
many decisions have been given by the High Courts in India, not
easily to be reconciled with one another or to the principles
enunciated by the learned in the Hindu Law. The Judicial
Committee of the Privy Council, in their endeavour to introduce
uniformity, have laid down certain rulings aiming at the settlement
of questions arising out of conflicting decisions. Those on the
powers of a Karta or manager, interests of minors, alienation by a
Mahant, duties of a mortgagee, Benami transactions, right of
reversioners, maintenance out of impartible zemindari, partition,
power of disposition over self-acquired property, gains of science,
nature of estate held by a female in respect of inherited property,
IV PREFACE.
adoption of an only son, religious ceremonies in adoption, power to
adopt and succession by two widows, extension of the number of
handhus, deserve special mention. The limitation of the testa-
mentary power of a Hindu in respect of ancestral property, the
Stridhan, the nature of possession of property by a widow entitled
only to maintenance, and the father's power to burden the ancestral
property with his antecedent or present debt, require further
careful consideration.
There appears to be a tendency amongst those who are
entrusted with the administration of Justice according to the
Hindu and the Mohammedan Laws in so far as these laws have
been preserved to the Hindus and the Mohammedans by express
declaration of the Legislature, to take into account as little as
possible the principles of those laws and to introduce principles of
other systems based upon entirely different conceptions of society.
Resulting as it does in ignoring the principles of those laws which
mould the manners, customs, usages and the sentiments of the
people, reacting as it does on legal education, this tendency is to
be very much deplored. If the dictum of the late Lord Parker of
Waddington, who recognised equity as known to the Mohammedan
Jurisprudence, that " the Indian law should be allowed to develop
on its own lines," were to be kept in view, the certainty that the
laws guaranteed to the Hindus and the Mohammedans were
respected would give rise to a general sense of security and
satisfaction throughout India.
Before his lamentable untimely death. Lord Parker, to whom I
have already referred, had kindly expressed his willingness to
accept the dedication of the present edition of this work. He was
a great lawyer and a friend of India, but he has passed to the
majority, and I can only therefore dedicate it to his memory.
H. R. ABDUL MAJID.
1 Elm Court,
Temple.
September, 1919.
CONTENTS,
PAGE
I. PBEFACE iii
11. TABLE OF CONTENTS v
III. LIST OF CASES CITED xix
IV. ACTS, REGULATIONS, AND STATUTES REFERRED TO Ixxix
V. AUTHORITIES QUOTED OR REFERRED TO Ixxxiii
VI. A LIST OF THE PRINCIPAL REFERENCES TO HINDU
AUTHORITIES Ixxxvii
VIL ADDENDA AND CORRIGENDA Ixxxix-xcii
INTRODUCTION.
I. Operation of the Hindu Law 1
II. Sources of the Hindu Law 9
The Authorities of the Hindu Law according to the various
Schools : —
(I.) The Maharashtra School 12
1. The Mitakshara 15
2. The Vyavahara Mayukha 20
3. The Viramitrodaya 22
4. The Dattakamimamsa and Dattaka Chandrika 23
5. The Nirnayasindhu ib.
6. The Samskarakaustubha 25
7. The Dharmasindhu ib.
8. The Smritis ib.
9. The Vedas 50
(11.) The Dravida School 51
1. The Mitakshara 15
2. The Madhaviya 51
3. The Sarasvati Vilasa ib.
4. The Varadarjya or Vyavahara Nirnaya ib.
5. Smriti Chanrika , ib.
(III.) The Benares School 52
1. The Mitakshara 15
2. The Viramitrodaya 22
3. The Madhaviya 51
4. The Vivada Tandava 52
6. The Nirnaya Sindhu 51
VI CONTENTS.
PAGE
(IV.) The Mithila School 52
1. The Mitakshara 15
2. The Vivada Eatnakara 52
3 & 4. The Vivada Chintamani and the Vyavahara
Chintamani ib.
5. The Dwaita Parisishta ib.
6. The Vivada Chandra ib.
7. The Smriti Sara 53
8. The Smriti Samuchchaya ib.
9. The Madana Parijata ib.
(V.) The Gauriya or Bengal School 53
1. The Dharma Eatna ib.
2. The Commentaries on the Daya Bhaga ib.
3. The Smriti Tatwa 54
4. 5, & 6. The Vivadarnava Setu, Vivada Sararnava,
and Vivada Bhangarnava ib.
The comparative authority of the Dattaka Mimamsa
and Dattaka Chandrika 23,54
BOOK I.
THE LAW OF INHEEITANCE.
I. The General View of the Law of Inheritance 65
1. Definition of the Law of Inheritance ib.
2. Sub-divisions of the Law of Inheritance 56
II. Succession under the Mitakshara and Vyavahara Mayukha 62
§ 1. Heirs to Males ib.
A. Succession to an undivided Coparcener ib.
(1) The sons and descendants ib.
(2) The adopted sons 67
(3) The illegitimate sons and their descendants 69
(4) The descendants of emigrant heirs 70
(5) Coparceners of the deceased ib.
B. Succession to a separate householder, a temporary student,
and an undivided coparcener's separate property 73
(1) The sons and descendants 74
(2) The adopted sons 76
(3) The Sudras' illegitimate sons 77
(4) The widows 82
(5) The daughters 96
(6) The daughter's sons 99
(7) The mother 102
(8) The father 103
(9) Brothers of whole blood tfe.
(10) Half-brothers 104
(11) Sons of brothers of full blood 105
CONTENTS. Vn
PAGE
(12) Sons of half-brothers 105
(13) The paternal grandmother 106
(14) The Gotraja Sapindas 107
(15) The Gotraja Samanodakas 123
(16) The Bandhus ih.
(17) The spiritual relations 128
(18) The Brahmana community ih.
(19) The partners in business of a Banya 129
(20) The King ih.
C. Succession to a Samsrishti (Ee-united Coparcener) ih.
(1) The sons and descendants ih.
(2) The reunited coparceners 130
D. Succession to males who have entered a religious order 134
(1) To a Yati or Sannyasi ih.
(2) To a Naishthika Brahmachari ih.
§ 2. Heirs to Females ih.
A. To unmarried females ih.
(1) The brothers ih.
(2) The mother ih.
(3) The father ih.
(4) The nearest Sapindas ih.
B. To Married females leaving issue 135
(1) The daughters ih.
(2) The granddaughters 140
(3) The daughter's sons ih.
(4) The sons ih.
(5) The son's sons ih.
C. To married females leaving no issue ih.
■ (1) The husband ih.
(2) The husband's Sapindas 141
(3) The widow's Sapindas 142
III. Succession under the Dayabhaga 142
(1) Principles governing the order of succession under the
Dayabhaga 142-145
(2) Enumeration of heirs 145-148
a. Heirs mentioned in the Law Books 145, 146, 147, 148
6. Heirs not mentioned in the Law Books 146, 147
IV. Persons Disqualified to Inherit 148
v. Special Eules of Inheritance according to Custom — Sacred
Property — Eeligious and Charitable Endowment 151
VI. Benami on Ism-e-Farzi Transactions 157
VII. Burdens on Inheritance 160
a. Maintenance.
h. Debt.
Vin. Limitations of Property and Eesteaint on Disposal under the
Hindu Law 172
IX, The Testamentary Power 209
X. Maintenance 225
XI. Stridhana or Woman's Property 257
Vm CONTENTS.
XII.— DIGEST OF VYAVASTHAS.
INHERITANCE.
PAGE
Ch. I. Heirs to an undivided coparcener 323
Sec. 1. Sons and grandsons ih.
„ 2. Eemote heirs 324
Ch. II. Heirs to a separate male 338
Sec. 1. Sons by birth, legitimate ih.
2. Adopted sons 347
3. Illegitimate son 357
4. Grandson 370
5. Illegitimate son's son 371
6. Widow ih.
A. Married as a virgin ih.
B. Remarried 394
Sec. 7. Daughter 406
8. Daughter's son 418
9. Mother 421
10. Father 426
„ 11. Full-Brother 427
., 12. Half-brother 430
,, 13. Brother's son 431
14. I. Gotraja Sapindas , 435
A. Sapindas mentioned in the Law Books ih.
1. Full-sister ih.
2. Half-sister 440
3. Paternal uncle 443
4. Father's brother's son 444
5. Paternal grandfather's brother's son 449
B. Sapindas not mentioned in the Law Books 450
a. Males t5.
1. Brother's grandson ih.
2. Paternal uncle's grandson 451
Sec. 14. B. 6. Females 451
1. Daughter-in-law ih.
2. Brother's widow 452
3. Paternal uncle's widow 453
4. Paternal uncle's son's widow 454
5. Widow of a Spinda within four degrees 455
II. Samanodakas jjj.
Sec. 15. Bandhus : Introductory Remarks 457
A. Bandhus mentioned in the Law Books 461
1. Father's sister's son ib.
2. Maternal uncle's son 462
B. Bandhus not mentioned in the Law Books ih.
I. Males II)
(1) Sister's son j5_
(2) Maternal uncle 464
CONTENTS. IX
PAGE
II. Females 465
(1) Grand-daughter ib.
(2) Brother's daughter ih.
(3) Sister's-daughter 466
Ch. III. Heirs to males who have entered a religious order 468
Sec. 1. Heirs to a Yati ib.
,, 2. Heirs to a Naishthika Brahmachari ib.
"Ch. IV. Heirs to a female 470
A. Heirs to an unmarried female ib.
Sec. 1. Brother ib.
„ 2. Father ib.
„ 3. Sister 471
B. Heirs to a married female ib.
Sec. 1. Daughter ib.
,, 2. Grand-daughter 477
,, 3. Daughter's son ib.
,, 4. Son 478
,, 5. Husband 481
,, 6. Husband's Sapindas : Introductory Kemarks 484
I. Husband's Sapindas in general 487
II. Husband's Sagotra Sapindas 489
a. Step-son ib.
b. Husband's mother ib.
c. Fellow-widow 491
d. Husband's brother 492
e. Husband's step-brother 495
/. Daughter-in-law ib.
g. Husband's brother's son 496
h. Husband's brother's widow 497
i. Husband's paternal uncle's son 498
/'. Husband's paternal uncle's great-grandson 500
k. Husband's more distant Sagotra Sapindas ib.
III. Husband's Bhinnagotra Sapindas 503
a. Daughter's grandson ib.
b. Husband's sister ib.
c. Husband's sister's son 504
Sec. 7. The Widow's Sapindas : Introductory Kemarks 505
I. The Sapindas in general 508
n. Sagotra Sapindas 509
a. Mother ib.
b. Brother 510
c. Step-brother ib.
d. Brother's son 511
e. Step-brother's son ib.
f. Paternal uncle 512
g. Paternal uncle's son ib.
III. Bhinnagotra Sapindas ib.
a. Sister's son ib.
X CONTENTS.
PAGE
b. Maternal uncle's son 513
c. Sister's daughters ib.
Ch. V. Cases of Inheritance decided by the customs of castes or sects 616
Sec. I. Heirs to a Male Gosavi 521
a. Disciple ib.
b. Female disciple 626
/ c. Disciple's disciple 627
d. Fellow-disciple ib.
e. Guru's fellow-disciple 529
II. Heirs to a Gharbari Gosavi ib.
III. Heirs to a Gosavini 631
Sec. 2. Heirs to a Jangama 532
,, 3. Heirs to a Jati 533
,, 4. Heirs to a Nanak-Shahi 535
,, 6. Heirs to a Manbhau ib.
„ 6. Heirs to a Vairagi 636
(1) Disciple 637
(2) Guru 539
(3) Fellow-student ib.
(4) Fellow- student's disciple ib.
Ch. VI. Persons disabled to inherit 641
Sec. 1. Persons diseased in body or mind ib.
,, 2. Illegitimate children 546
,, 3. Persons labouring under moral deficiences 548
a. The enemy of his father ib.
b. Persons addicted to vice 550
c. Adulteresses and incontinent widows 562
BOOK II.
PAETITION.
§ 1. Definition 669
§ 2. Sub-divisions ^ 662
I. The Family living in union.
§ 3. The family living in union 562
The Manager's authority in undivided family '. 569
A. The undivided family 604
1. Consisting of an ancestor and his descendants ib.
2. Of descendants of a comman ancestor 606
B. The reunited family 607
II. Separation.
§ 4. A. Separation defined 608
B. How effected ^5
1. By the will of all the coparceners ib.
2. At the desire of one or more members only ib..
CONTENTS. XI
PAGE
3. By the judgment-creditor of a member, or purchaser
at an execution sale of his interest 608
C. Eight to partition limited to demandant and his share 617
1. General Remarks ib.
2. Great-grandson 622
3. Minors ib.
4. Absentees 626
5. Wives, mothers, &c 627
6. Disqualifications for demanding a separation 629
n 4. D. Will to effect a separation 630
1. Stated explicitly 631
2. Implied 636
The Signs of separation ih.
(a) The possession of separate shares ih.
(b) Living and dining separately 637
(c) Commission of acts incompatible with a state of union ib.
(d) Separate performance of daily ceremonies ih.
E. Separation, total or partial 645
F. final 649
III, Distribution of the Common Property.
§ 6. A. Ancestral properpty, distributable 654
1. Ancestral ih.
(a) Inherited ih.
(b) Recovered 661
1. By father ib.
2. By another coparcener 662
2. Self-acquired 664
(a) By father ih.
B. Property naturally indivisible 671
C. legally impartible 675
IV. Liabilities on Inheritance.
§ 6. Sub-division 684
A. Debts 686
B. Provisions for relations, &c 689
(1) Disqualified persons, their wives, daughters, and dis-
qualified sons 690
(2) Female relations not entitled to a specific share ib.
V. Rights and Duties arising on Partition.
§ 7. Sub-division 698
A. The determination of shares to which sharers are entitled 699
1. Partition of divisible property 704
(a) Partition between ancestor and his first three de-
scendants ib.
(1) Of ancestral property ib,
(2) Of self-acquired property ib.
XU CONTENTS.
PAGE
(b) Partition between brothers or collaterals 710
Rights and duties arising on such partition 712
(c) Partition between reunited coparceners 715
2. Partition of naturally indivisible property 716
B. The distribution of the common liabilities 717
1. Debts ib.
2. Other liabilities 721
VI. Digest of Vyavasthas.— Partition.
Cb. 1. Partition between the head of a family and his first three descen-
dants 725
Sec. 1. Of ancestral property ib.
,, 2. Of self-acquired property 732
,, 3. A mother's share 740
Ch. II. Partition between other coparceners 742
Sec. 1. Between brothers ib.
,, 2. Between mother and son 749
,, 3. Between remoter relations 752
Ch. III. Manner and legality of partition 755
Sec. 1. Partition of indivisible property ib.
,, 2. Partition of property discovered after partition 758
,, 3. Legality of partition 761
,, 4. Partial division 767
Ch. IV. Evidence of partition 771
BOOK III.
ADOPTION.
§ I. Sources of the law 779
II. Nature of adoption and its place in the Hindu system 789
III. The capacity to adopt and the circumstances under which it may
be exercised 839
A. 1. 1. — Adoption by Males ib.
1. 2. — In relation to paternity 842
1- 3.— Fictitious cesser of paternal and filial relation 844
1. 4. — Existence of a widow of a son or a grandson 845
1. 5. — Capacity in relation to age ib.
1- 6. to intelligence 847
1- 7. to bodily state ib.
1. 8. to religious :state 848
1- 9. to caste connection or exclusion ib.
III. A. 1. 10.— In the case of particular castes 849
1. 11. — Vaisyas j^
1. 12.— Sudras tb.
1. 13. — Jains j-^
1. 14. — Bhateles ggQ
1. 15. — Garasias ^ ^^
CONTENTS. Xlll
PAGE
1. 16. — Sannyasis and Gosavis 850
2. Adoption by a male — by delegation ib.
2, 1. by means of wife ib.
2. 2. by means of widow 851
2. 3. by means of daughter-in-law ib.
3. Eestrictions on adoption to persons deceased 852
4. Qualifications of the power to adopt arising from family and
political relations ib.
4. 1. — Consent of wife ib.
4. 2. — Family relations — kindred 853
4. 3. — Pupillage ib.
4. 4. — Consent or acquiescence of the sovereign 854
B. — Adoption by Females 855
1. No adoption by maiden ib.
2. Adoption by a wife ib.
2. 1. under express delegation ib.
2. 2. under implied delegation 856
2. 3. — Conditions of effective delegation ib.
3. Adoption by a widow ib.
3. 1. — Adoption by a widow under express authority given by
act inter vivos 859
3. 2. under authority given by will 861
3. 3. positive command to adopt 862
3. 4. choice prescribed ib.
3. 5. authority giving qualified discretion 863
3. 6. authority giving complete discretion as to per-
son 864
3. 7. authority to adopt with complete discretion as
to exercise of the power ib.
3. 8. conditional authority ib.
3. 9. implied authority 865
3. 11. authority excluded by prohibition or dissent
of the husband — express prohibition 866
3. 12. implied prohibition or dissent 867
III. B. 3. 13. — Adoption by a widower under an assumed assent of the
husband 867
3. 14. a conscientious obligation 871
3. 15. time for adoj^tion 872
3. 16. preference of husband's nephew or other
Sapinda 873
3. 17. authority in the case of two or more widows 874
3. 18. circumstances in which the capacity may be
exercised 875
3. 19. son deceased sonless ib.
3. 21. successive adoptions by a widow 876
3. 22. simultaneous adoptions 877
3. 23. circumstances which bar adoption 878
3. 24. circumstances barring adoption as in the case
of a male 886
Xiv CONTENTS.
PAGE
3. 25. — Adoption not to defeat a vested .estate 886
3. 26. widow's capacity as affected by her age 890
3. 27. as affected by intelligence 891
3. 28. as affected by her state as to body,
mind, religion and caste ib.
3. 29. capacity annulled by her re-marriage 892
3. 31. consent required : 893
3. 32. consent of co-widow ib.
3. 33. consent of mother-in-law ib.
3. 34. consent of husband's kinsmen or Sapindas ... 894
3. 35. consent of the caste 898
3. 36. consent of persons whose interests are affected
by the adoption , 899
3. 37. consent of Government 901
3. 38. omission or postponement of adoption 903
3. 39. pretended adoption ib.
4. Adoption by females — anomalous adoptions 904
4. 1. Adoption by mother ib.
III. B. 4. 2. — Anomalous adoption by females — by a daughter-in-law 906
4. 3. — Grandmother ib.
C. 1. Quasi adoptions — by males ib.
2. Quasi adoption by females — Kritrima adoptions ib.
2. 1. subject to the Alya Santana law 907
2. 2. by Kalwantins, Naikins, &c ib.
IV. — Fitness for Adoption 908
1. Fitness for adoption as affected by caste ib.
2. 1. — Connexion in family generally 909
2. 2. — Relation between the boy to be adopted and the adoptive
father through the natural father 912
2. 3. the son to be adopted and the adoptive father
through the son's natural mother 915
2. 4. the son to be adopted and the adoptive mother 920
2. 5. — Family connexion with the adoptive parents amongst
Sudras 922
3. Relation of the son to be adopted to his family of birth 926
3. 1. as an only son ib.
3. 2. eldest son 928
3. 3. youngest son 931
3. 4. amongst Sudras ib.
4. Fitness for adoption as affected by personal qualities— Sex ... 932
4. 1. Age 934
4. 2.— Juniority of adopted son to adoptive father 935
4. 3.— Birth during adoptive father's life ib.
4. 4.— Identity or difference of family or gotra ib
4. 5. — Bodily qualities 937
4. 6. — Mental qualities 938
4. 7.— Religious and ceremonial qualities ib.
4. 8. Investiture with the sacred thread 940
4- 9. Marriage 942
CONTENTS. XV
PAGE
4. 10. — Religious and ceremonial qualities — Place in caste of
the adopted son 944
5. Fitness for adoption — In case of anomalous adoptions ib.
6. in case of quasi adoptions 945
v. The Capacity to give in Adoption and the Circumstances
UNDER WHICH IT MAY BE EXERCISED 946
The capacity limited to the parents ib.
A. Gift by the father 960
1. — Father's personal competence ib,
2. — Circumstances in which the gift may be made ib.
3. — Qualifications of the power 951
B. Gift by the mother 952
1. 1. — As a wife — By express permission of the husband ib.
1. 2. — With implied assent of the husband ib.
2. Gift by the mother — As a widow 953
C. Gift by persons incompetent 955
1. — By adoptive parents ib.
2. — Persons commissioned by the parents 956
3. — By grandfather, brother, &c ib.
4.— Self-gift ib.
VI. A. The act of Adoption— Its character and essentials 957
1. as to the gift 969
2. as to the acceptance 962
3. assent of the son 964
4. contract of adoption ib.
6. proof of the transaction 965
5. 1. — Means of proof ib.
6. 2. — Presumption in favour of adoption 967
6. 3.— Estoppel 969
6. 4. — Ratification 971
6. 6. — Limitation 972
6. Terms annexed to adoption 973
7. Assent as a valuable consideration 987
B. The act of adoption — The persons whose participation is required 988
1. In regular adoptions ib.
1. 1. The parents giving ib.
1. 2. The parents taking 989
1. 3. Presence of the child given 990
1. 4, Presence of relatives ib.
2. In cases of anomalous adoptions 991
VI. C. External conditions to be satisfied 991
1. As to publicity ib
2. As to time 992
3. As to place ib.
D. I. Ceremonies and Forms — Constitutive ib.
1. 1. — Amongst Brahmanas ib.
(a) In adopting strangers, and generally ib.
(h) Sagotras 999
(c) after tonsure 1000
(d) In case of a Dvyamushyayana 1001
XVI CONTENTS.
PAGE
1. 2. — Amongst the lower castes 1002.
1. 3. — Subsidiary forms 1004
1. 4. — Informalities 1006
D. 2. Ceremonies and forms — Collateral lOOS
2. 1. — Inducing good fortune ih.
2. 2. — Indicating joy and generosity ih.
2. 3. — Authenticative ih.
E. Variations — In the case of quasi adoptions ih.
1. Disapproved adoptions ih.
2. Connexions resembling adoption 1009*
VII. Consequences OF Adoption 1010
I. Governed by the ordinary law ih.
I. 1. — Perfect adoption ih.
A. General consequences ih.
1. — Change of status ih.
2. — Change of sacra 1012
3. — Adoption transfers the offspring lOlS'
4. in the adoptive father's life is prospective ih.
5, after the adoptive father's death is retrospective 1014
6. is irrevocable and irrenounceable 1016
7. — No return to the family of birth 1017
8.— The connexion by blood with the family of birth is not
extinguished 101&
9. — Terms and conditions , ih.
I. 1. — B. Specific effects 1022
1. As to the relations between the adopted and his family of
birth—
VII. I. 1. — B. 1. 1. — Between the natural parents and the son — Imme-
diate personal relations .„ 1022
(a) Parents the active subjects ih.
(h) Son the active subject ih.
1. 2.— Eelations as to property 1023
1- 3. as to obligations 1024
1. 4. — Eelations between the adopted and other members of
his family by birth— Immediate personal relations ... 1025
1. 5. — Eelations as to property ih,
B. 2. Consequences as creating relations in the family of adoption 1026
2. 1.— Between the parents and ascendants, and the son and
descendants— Immediate personal relations ih.
(a) Parents the active subjects ih.
(h) Son the active subject 1027
2. 2.— Eelations between the parents and the son with respect
to property 102g
(a) Between the adoptive father and son ih.
(h) Between the adoptive mother and son 1033
(c) Between adoptive step-mother and son 1039
(d) Between adopted son and grandparents 1041
CONTENTS. XVll
PAGE
2. 3. — Eelations with respect to obligations 1041
(a) Between the father (and grandfather) and the son as
to debts and claims ib.
(b) Between the adoptive mother and son 1042
2, 4. — Between son by adoption and children by birth 1043
(a) Immediate personal relations ib
(b) Eelations with respect to property 1044
2. 5. — Between the adopted son and remoter connexions by blood
— Of the adoptive father 1046
2. 6.— Of the adoptive mother 1052
I. 2. — Imperfect adoption under the ordinary law 1055
A. Eelations to the family of birth ib.
B. Eelations to family of adoption 1056
C. Eelations as a grantee 1061
YII. II. Consequences of adoption or quasi-adoption not governed by
the ordinary law 1061
A. Validity recognized ib.
1. — Without limitation (save by an exceptional law) ib.
2. with local limits 1062
3. amongst certain classes 1063
B. Validity not recognized 1064
1. — Obsolete ib.
2. — Adoption partly assimilated to that under the ordinary law ib.
3. — Merely analogous 1065
Sec. VIII. Suits and Proceedings connected with Adoption 1067
1. — Suits and proceedings arising out of non-adoption ib.
2. — Suits as to rights and duties of widow prior to adoption 1068
3. — Suits to establish adoption 1070
4. — Suits to set aside adoption 1073
5. — Suits in which adoption is an incidental question 1077
6. — Suits and proceedings consequent on adoption 1078
7. — Judgments and evidence in previous cases 1082
8.— Limitation 1084
Appendix 1087
Index 1091
H.L.
LIST OF CASES CITED.
PAGE
Abadi Begam v. Asa Earn 190
Abaji Dinkar v. Gungadhar Vasudev 820, 927
Abdool Hye v. Mozuffer Hossein 159
Abdul Aziz v. Naicker 171
Abdul Aziz v. Appayasami 204
Abdul Gannee Kasam v. Husen Miya Eahimtulla 195, 619
Abdurahim Haji Ismail Mithu v. Halimabai 3, 4, 152
Abhachari v. Eamchandrayya 829
Abhai Charan v. Dasmani Dasi 1068
Abhaychandra Eoy v. Pyari Mohan Juho et al 693, 699
Abhiram Das v. Shriram Das et al 554
Abilakh Bhagat v. Bhekhi 150
Abraham v. Abraham 4, 5, 559, 562, 683
Acharji Lallu Eanchor v. Bhagat Jetha Lalji 521
Adhiranee Narain Coomary et al v. Shona Mallee Pat Mahadai et al
75, 76, 251, 693, 721
Adhirbai v. Nathu 240
Adjoodhia Gir v. Kashee Gir 182, 619
Administrator General of Bengal (the) v. Eanee Surnomoyee Dossee 3
Adreshappa bin Gadgiappa v. Gurushidappa 327, 681
Advocate General (the) v. Vishvanath Atmaram 211
Advyapa bin Dundapa v. Dundapa bin Andaneapa 341
Advyappa v. Eudrava 99, 554
Aghory Eam Sarag Singh v. J. Cochrane et al 740
Agursangji v. Gagji Khodabhai 603
Ahmadboy v. Kasambhai 5, 659
Aiyyagari v. Eamayya 611
Ajudhia v. Eam Sumer 127
Akhay v. Hari 133, 608
Akhoy Chunder Bagche v. Kalaphar Haji 877
Akora v. Boreani 85, 102
Akshay Chandra v. Hari Das 144, 146
Alhadmoni v. Gokulmoni 103
Amabai v. Govind 850
Amarchand v. Sebakchand 587
Amava v. Mahadganda 850
Amrita Lai v. Manick Lai 627
Amrita Lai Dutt v. Surnomoye Dasi 863, 867, 956
Amrit Narayan Singh v. Gaya Singh et al 246
Anandi v. Hari 69, 103
XX LIST OF CASES CITED.
PAGE
Ahollya Bhai Debia v. Luckhee Monee Debia 252
Ajey Earn v. Girdharee et al 270
Akojee v. Vadelal 567
Akoji Gopal v. Hirachand 570, 573
Alangamonjori (or Alangmanjari) Dabee v. Sonamoni Dabee ... 219, 220, 620
Alank Manjari v. Fakir Chand 852, 854, 988, 995
Alexander v. Mullins 568
Alirael Ammal v. Arunachellam Pillai 624
Alum Manjee v. Ashad Ali 568
Alvar Ammaul v. Eamasawmy Naiken 989, 1074
Ambawow v. Rutton Krishna et al 419, 697
Ambika Dat v. Sukhmani Kuar et al 632, 640
Amrita Kumari Debi v. Lakhinarayan 112, 114, 126, 143, 461, 463
Amritnath Chowdry v. Gowreenath Chowdry 671
Amritolal Bhose v. Rajonee Kant Mitter 89, 97, 98, 101, 407, 417, 555
Amrit Rav Vinayak v. Abaji Haibat 433, 649, 717
Amrutrow Trimbuckrow v. Trimbuckrow Amrutayshwur 164, 720
Anand Kunwar v. The Court of Wards 1054
Aghore Nath v. Grish Chunder 193
Anandibai v. Hari 616, 617
Anandibai v. Rashibai 893
Anandrao Padaji v. Shidooji Anandrao 644
Anandrav v. Ganesh Yeshwantrav 968
Anandro Vinayak v. Adv. -Gen. of Bombay 224
Anant Balaji v. Ganesh Janardhan 616
Anant Jagannatha v. Atmaram 571, 576
Ananta v. Ramabai 149, 544
Anantha Tirtha Chariar v. Nagamuthu Ambalagaren 179, 183, 744
Anath Nath Day v. A. B. Mackintosh 202
Annamala Auchy v. Mungalum 927
Annammali v. Mabhu Bali Reddy 886, 900
Annapurnai Nachiar v. Forbes 67, 1040
Annaya v. Hoskeri Ramappa 591, 688
Anpoornabai v. Janrow 326
Anpoornabai v. Mahadevrao Balwunt 606
Antaji v. Dattaji 91
Antaji Raghunath v. Pandurang 328
Anund Lai Singh Deo v. Maharajah Dheraj Gooroo Narayan Deo 2, 154
Anund Mohun v. Gobind Chunder 950
Anund Moyee Chowdhrain v. Boykanthnath Roy 199, 716, 744
Anund Moyee Chowdhrain v. Sheebchunder Roy 846
Anunt Bapoo v. Arjun Gondu 643
Apaji Chintaman v. Gangabai 230, 697
Apaji Govind v. Naro Vital Ghate 589
Apaji V. Ramchandra 611
Appa V. Juggoo 627
Appaji V. Keshav 181, 687
Appaniengar v. Alemalu Ammal 894, 896, 1010, 1023, 1031
Appa Rav v. The Court of Wards 703
LIST OF CASES CITED. XXI
PAGE
Appovier v. Rama Subbayana (Appovier's or Rama Suhhayanas Case)
595, 611, 624, 625, 631, 633, 634, 635, 640, 642, 645, 646, 699, 702, 765
Ardseer Cursetjee v. Perozebai 84, 1067
Arjun Manic v. Ram Ganga Deo 153
Arjuna v. Bhavan et al 565
Armory v. Delamirie 972
Armugam Pillai v. Sabapathi Padiachi 585
Arnold v. Dixon 634
Arunachallam Pillai v. Ayyasvami Pillai 818, 927, 954
Arundadi Ummal v. Kupumall 859
Ashabai v. Haji Tyeb 279, 281, 296
Asharfi v. Rup 812, 831, 857, 935
Asher v. Whitlock 650
Ashinullah v. Kali Kinkur 717
Ashton V. Lord Langdale 707
Ashutosh Dutt v. Doorga Churn Chatterjee 183, 619
Atma Ram v. Madho Rao 826, 962
Atmanund v. Atmaram 522
Atmaram Baji v. Madhavrao Bapuji 644, 646
Attree v. Hawe 707
Attwood V. Ernest 567
Audh Kumarai v. Chandra ,... 97
Aushutosday v. Moheschunder Dutt et al 569
Authi Kesavelu v. Ramanujaru 141
Ayyangar v. Kuppan Ayyangar 347
Ayyavu Muppanar v. Niladatchi et al 67, 347, 1026, 1044, 1058, 1085
B. Shen Sulrae Singh v. Balwunt Singh 419
Babajee v. Apajee 350
Babaji v. Krishnaji 590, 592, 687
Babaji v. Ramaji 652
Babaji Lakshman et al v. Vasudev Vinayek 652
Babaji bin Kusaji v. Maruti 623, 625
Babaji bin Mahadaji v. Krishnaji Devji 168, 173, 569, 591
Babaji and Nanaji v. Narayan 178, 644
Babaji bin Narayan v. Balaji Gannesh 98, 408
Babaji Parshram v. Ramchandra Ananta 633, 765
Babaji Sakoji v. Ramset Pandushet 571, 592, 595, 687
Babaji Shrinivas v. Sheshgir Bhimaji 625
Babashet v. Jirshet 641
Babla v. Vishnoo Ballal Thakur *. 643
*Baboo Banee Pershad v. M. Syad Abdool Hye 1005, 1063
Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee
74, 129, 154, 181, 205, 208, 619, 679, 740
Baboo Bodhnarain Singh v. Baboo Omrao Singh 542, 543
* 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.
Xxii LIST OF CASES CITED.
PAGE
Baboo Camumah v. B. Chinna Venkatasa 844
Baboo Deen Dyal Lall v. Baboo Jugdeep Narain Singh (see Been DyaVs
Case) •••• l^"^
Baboo Doolichand v. Babu Brij Bhookan 190, 246
Baboo Goliick Chunder Bose v. Earn Ohilla Dayee 75, 164, 722
Baboo Gunesh Dutt v. M. Moheshur Singh et al 679
Baboo Gunput Sing v. Gunga Pershad 286
Baboo Juswant Singh v. Dooleechand 806
Baboo Karaeswar Pershad v. Kun Bahadur Singh 595
Baboo Krishna Eav. v. Lakshraan Shanbhogue 667
Baboo Lekraj v. Baboo Mahtab Chand 623
Baboo Nund Coomar Lall v. Moulvie Eazee-ood-deen Hoosein 656, 657
Baboo Eunjeet Singh v. Obhye Narain Singh 912
Baboo Sheo Manog Singh v'. Baboo Earn Prakash Singh 1076
Babu Sheo Lochun Singh v. Babu Sahib Singh 300
Bacha v. Gangadhar 160
Bachha Jha v. Jugmon 141, 280
Bachiraja v. Venkatapadda 437
Bachoo V. Mankorebai 193, 205, 870
Bachebai v. Makhan Lai 152
Badri Prasad v. Madan Lai 653
Badri Eoy v. Bhagwat Narain Dobey 564, 577, 627, 705, 712
Bagmal et al v. Sadashiv et al 720
Bagooa Jha v. Lai Doss 307
Bahala Nana v. Parbhu Hari 375
Bahirji Tannaji v. Oodatsing 184, 435, 664, 734
Bai Amba v. Damodar Lalbhai 93, 96
Bai Amrit v. Bai Manik 151, 571, 788
Bai AmriVs Case, see Lallubai v. Bai Amrit '
Bai Baija v. Bai Santook 5
Bakubai v. Manchhabai 417
Bai Benkor v. Jeshankar Motiram 139, 543
Bai Devkore v. Amritram 286
Bai Devkore v. Sanmukhram 245
Bai Golab v. Thakorelal 215
Bai Gunga v. Dhurmdass 594
Bai Gunga v. Dhurumdas Nurseedas 731
Bai Gunga v. Bai Sheokoowar or Sheoshunkur 119, 841, 920
Bai Jamna v. Bhaishankar 286, 287, 297, 302, 321
Bai Jetha v. Haribhai 326, 452, 495
Bai Kanku v. Bai Jadhav 241
Bai Keaserbai v. Morariji 13, 141, 182, 280, 288, 313, 314, 320, 789
Bai Mangal v. Bai Eukhmini 98, 255
Bai Parson v. Bai Somli 101, 140, 668
Bai Nani v. Chuni Lai 800, 922
Bai Motivahu v. Bai Mamoobai 215, 1039
Bai Motivahu v. Bai Manubai 212
Bai Motivahu v. Purshotam 158
Bai Narmada v. Bhagwanbai 314
LIST OF CASES CITED. XXlll
PAGE
Bai Paravati v. Tarwadi 240, 243
Bai Kesar v. Bai Gunga 350, 570
Bai Lakshmi v. Lakhmidas 229, 244, 246
Bai Muncha v. Nurrotumdas Kassidas et al 313, 668, 669
Bai Premkuvar v. Bhika Kallianji 149
Bai (or Baee) Eutton v. Mansooram 768
Bai Suraj v. Dalpatram Dayashankar 180, 643
Bai Suraj v. Desai Harlochandass 615, 633
Bai Suraj v. The Government of Bombay et al 326
Bai Tulsa v. Bhiji Adam Abraham 651
Bai Umedha v. The Collector of Surat 422
Baidaya v. Govindlal 229, 255
Baijun Doobey v. Brij Bhookun Lall 76, 89, 164, 168, 251, 592, 661, 692
Baijnath Sahai v. Desputty Singh 1082
Bailur v. Lakshman 203, 588
Baiza et al v. Sadu 364
Bajaba v. Vishvanath 662
Bajee Bapoojee v. Venoobai 324, 426, 427
Baji Balvant v. Eaghunath Vithal 1073
Baji Shamraj Joshi v. Dev bin Balaji Dadhar 569, 590, 592, 653
Baji Sudshet v. Pandoorung 622
Bajrangi Singh v. Manokarnika Bakhsh Singh 285
Bajyram Vithal v. Atmaram Vithal 646
Bakubai v. Munchabai 97, 150
Bala V. Muthu 699
Bala V. Nathaji 711
Balabux v. Eukmabai 133, 608, 649
Balaji Anant Eaja Diksha v. Ganesh Janardhan Kamati 588, 590, 653
Balaji Bhikaji Pinge v. Gopal bin Eaghu Kuli 567
Balaji Sitaram Naik v. Bhikaji Soyare Prabhu 76
Balaram Nemchand v. Appa 650
Baldeo v. Mobarak 193
Baldeo Das v. Sham Lai 207, 734
Baldeo Singh v. Mattura Kunwar 99
Balgobind v. Narain 203, 588, 651
Balkishen v. Eai Sita 203, 588
Balkrishna v. Lakshman 103
Balkishan v. Eam 563, 572, 574, 609, 611, 624, 626, 631, 638
Balkrishna Trimbak Tendalkar v. Savitribai 4, 83, 151, 178, 324, 341, 549,
722, 1017, 1032, 1033
Balkrishna Vithal v. Harishankar 634, 648
Ballabhdas v. Sundardas 561
Ballal Krishna v. Govinda et al 615
Balmokund et al v. Jhoona Lall , 687
Balmukund v. Janki 507
Balu bin Bapurao v. Narayen Bhivrao 641
Balvantrav Bhaskar v. Bayabai 806, 807, 832, 926, 950
Balvant Eav T. Bapuji v. Purshotam 297, 706, 710
xxiv LIST OF CASES CITED.
PAGE
Bamundoss Mookerjea et al v. Muast. Tarinee ... 88, 349, 350, 372, 813, 814,
885, 980, 1034, 1035, 1047, 1049, 1068
Balgangadhar Tilak v Tai Maharaj 962, 973
Bandam Settah et al v. Bandam Mahalakshmi 495
Banee Pershad v. M. Syed Abdool Hye 1005, 1063
Bapoojee Lakshman v Pandurang 545, 887
Bapubhai v. Bai Suraj 326
Bapuji V. Pandurang 150
Bapuji Balal v, Satyabhamabai 189
Bapu Purshotam v. Shivlal Eamchandra 654
Barabi Debi v. Debkamini 616, 646
Barlow v. Orde 5, 223
Baroda Debea v. Eajah Prankishen Singh 4
Baroda Kanta v. Chunder 160
Basanagaoda v. Sunna Fakeeragaoda 391
Basant Kumari Debi v. Kamikshaya Kumari 184, 215
Basappa v. Malan Gavda 967
Basappa v. Eayava 85, 99, 102
Basava v. Linganganda 809, 818, 927, 932
Bashettiappa v. Shivalingappa ... 356, 806, 817, 818, 832, 926, 950, 955, 956
Baswantrao v. Mantappa 682
Bata V. Chintamoni 617
Bateman v. Davis 972
Bawa Misser et al v. Rajah Bishen Prokash Narain Singh 706
Bawani Sankara Pandit v. Ambabay Ammal 972, 1058
Bayabai v. Bala Venkatesh Ramakant ... 650, 814, 840, 855, 857, 866, 872, 884
Bayaji v. The Conservator of Forests 664
Beauchamp v. Winn 1079
Becha v. Mothina 240, 242, 255
Bechar Bhagvan v. Bai Lakshmi 297, 710
Bechardas v. Gokha 681
Becharam v. Debia 671
Beer Chunder Jobraj v. Neel Kishen Thakur 153
Beer Pertab Sahee v. Maharajah Eajendar Pertab Sahee 74, 129, 154, 181,
205, 208, 619, 679, 740
Beharee Lall Mullick v. Indur Mohinee Chowdhrain 825, 968, 981, 1004
Behari Lai v. Shib Lai 67, 1061
Behari Lai v. Madho Lai 89
Beharilalji v. Bai Eajbai 75
Bemola Dossee v. Mohun Dossee 324
Beni v. Puran 627
Benund Naik v. Doorga Churn Naik 636
Bepin Behari Bundopadhya v. Brojo Nath Mookhopadhya 981, 1020
Bhagbati v. Kalicharan 212
Bhagbut V. Girja 171, 581
Bhagirathi v. Jokku Earn 173
Bhagirthibai v. Kahnujirav 283, 312
Bhagirthibai v. Baya 121, 302, 436
Bhagirthibai v. Sadashivrav Venkatesh 569, 625, 638
LIST OF CASES CITED. XXV
PAGE
Bhagu V. Bhasker 556
Bbagubai v. Kaolo Venkaji 912
Bhagvandas Tejmal v. Kajmal ... 152, 812, 826, 852, 855, 867, 868, 871,
880, 905, 990
Bhagvan Dullabh v. Kala Shankar 181, 218, 512, 619, 740, 828, 966
Bhagvansang Bharaji v. Bechardas Harjivandas 221
Bhagwan v. Bindoo 237
Bhagwan Singh v. Btiagwansingh 152, 782, 789, 916, 919
Bhagwan v. Warubai 107
Bhagwant Singh v. Kallu 149
Bhagwan Goolabchund v. Kriparam Anundram 327, 333
Bhagwanee Koonwar v Parbutty Koonwar 295
Bhaiji Girdhur et al v. Bai Khushal 88, 91, 93, 435
Bhairabnath Sye v. Maheschandra Bhaduri 1004, 1073
Bhai Shanker v. The Collector of Kaira 684
Bhala Nahana v. Parbhu Hari 88, 91, 93, 94, 572, 812, 841, 850, 964, 967,
987, 1030, 1064, 1079
Bhaiya Rabidat Singh v. Maharani Indar Kunwar 961, 973, 974, 977, 980, 1021
Bhana v. Chindhu 587, 616
Bhana Govind Guravi v. Vithoji Ladoji Guravi 644
Bhaoo Appaji Powar v. Khundoji wulud Appaji Powar 569, 592
Bharmanagavda v. Bharmappagavda 294
Bharmanagavda v. Rudrapgavda 95, 455
Bharangowda v. Sivangowda et al 640, 644
Bharatsangjee v. Navanidharaya 706
Bhaskarappa v. The Collector of North Kanara 173, 174, 195, 627, 644, 673, 674
Bhaskar v. Bhagu 556
Bhaskar Buchajee v. Narroo Ragonath 854, 859, 992, 1031, 1074
Bhaskar Trimbak v. Mahadev Ramji 84, 437
Bhau V. Raghunath 313, 320
Bhau Nanaji Utpat v. Sundrabai (the " Utpat Case ") 2, 62, 79, 97, 151,
178, 516, 518, 519, 679, 682, 781, 782, 800
Bhau Babaji v. Mahipati 91, 298
Bhau Venkoba v. Govind Yeswant 93
Bhavanamma v. Ramasami 253
Bhawani v. Mahtab Kuar 83, 554
Bhawani Sankara Pandit v. Ambabay Ammal 1056
Bhecknarain Singh v. Januk Singh .* 602, 685
Bhika v. Bhana (or Bhava) 74, 129, 618
Bhikaji Apaji v. Jagannath Vithal 90
Bhikaji Mahadev v. Babusha 177
Bhikaji Ramchandra v. Lakshmibai 151
Bhimabai v. Murar Rao 878
Bhimowa v. Sanjawa 881
Bhikham Das v. Pun 245
Bhikya v. Babu 96
Bhimul Doss v. Choonee Lall 327, 754
Bhimana Gaudu v. Tayappa 1065
Bhimacharya v. Ramacharya 140, 141
XXVI LIST OF CASES CITED.
PAGE
Bhimappaiya v. Eamchandra 177, 180
Bhimasha bin Dongresha v. Kamchandrasha alias Krishnabai ... 591, 593, 688
Bholanath v. Ghasi Earn 624
Bholanath Mahta v. Ajoodha Persad Sookul 671
Bholanath v. Dass 126, 146
Bholanath Sircar v. Baharam Khan 719
Bhoobun Mobini Debya v. Hurrish Chunder Chowdhry 181, 184, 664
Bhola Pershad v. Earn Lall 160
Bhoobun Moyee Debya v. Earn Kishore Acharjee {see under Musst.)
Bhoop Singh v. Phool Kooer 88
Bhowannychurn v. Heirs of Eamkaunt 621, 631
Bhuggaji V. Bhaggawoo et al 765
Bhubaneswari Debi v. Nilkomul 836, 1016, 1035, 1049, 1061
Bhugwandas v. Bachoo Hurkissondas 68
Bhugwandeen Doobey v. Myna Baee 93, 95, 138, 167, 246, 295, 390, 424 495
710, 713
Bhujangrao v. Malojirao 74, 208, 705, 736
Bhu Taruk Eaejendra v. Sook Sagur et al 522
Bhyah Earn Singh v. Bhyah Ugur Singh ... 16, 60, 62, 111, 114, 116, 231,
787, 789, 877
Bhyrub Chunder Ghose v. Nubo Chunder Gooho 246, 250, 251, 288, 698
Bhyrub Chunder Mudduck v. Nuddiarchund Paul 720
Bhyrubnath Tye v. Mohesh Chunder Bhadooree 824
Bijrangi Singh v. Manokranika Bakhsh 1035
Biajan v. Luchmi 301, 313
Biharilalji v. Bai Eajbai 254
Bijoy Gopal v. Nilratan 1014
Bijoychand v. Kalipada 157
Bika Singh v. Lachman Singh 576
Bilaso V. Dinanath 616, 627, 647
Bimola v. Dangoo Kansaree 629
Binda v. Kunnsilla 263
Bindoo Bassinee v. Bolie Chand 88
Birbhadra v. Kalpataru 67
Biru valad Sadu v. Khandu valad Mari 302, 435
Biseswar Mookerji v. Ardha Chunder Eoy Chowdhry 961
Bishambar v. Sheo 193
Bishambhur Naik v. Sudasheeb Mohapatter 165
Bishen Chand v. Nadir 199
Bishenpirea Munee v. Eanee Soogunda 442
Bissambar Shaha v. Shib Chunder Shaha 712
Bissessur Chuckerbutty v. Earn Joy Mojoomdar 1074
Bissessur Chuckerbutty et al v. Seetul Chunder Chuckerbutty ... 663, 727, 1074
Bissessur Lall Sahoo v. Maharajah Luchmessur Singh ... 168, 574, 575,
652, 654, 655
Bissumbhur Shaha v. Sy Phool Mala 1081
Bistoo Pershad v. Eadha Soondernath 482
Bithoor case (The) see Nana Narain Eao v. Haree Punth Bhao 740
Board v. Board 636
LIST OF CASES CITED. XXVll
PAGE
Bodh Singh v. Gunesh 158, 670
Bodhnarain Sing v. Baboo Oomrao Singh 148
Bodhrav Hanmant v. Narsinga Eav 377, 681
BGinlingappas case (see Bomlingappa v. Malappa)
Bomlingappa v. Malappa 930
Boolee Singh v. Musst. Busunt Koveree 907
Boologam v. Swenam 662
Boyle Chund Dutt v. Khetterpaul Bysack 714
Braja v. Jiban 145, 146
Braja Bhukan v. Bichan 149
Braja Kishore v. Kudana 185, 205, 215, 293
Brajakishor Mitter v. Eadha Gobind Dutt 450, 451, 461
Brammoye Dossee v. Kristo Mohun Mookerjee 89
Brijbhookunjee Maharaj v. S. G. Maharaji 784, 831, 854, 898, 902, 910
Bri] Indar Bahadur Singh v. Eani Janki Koer (Brij Indar's case) 93, 285,
287, 318, 480
Brijraj v. Sheodan 632
Brinsmead v. Harrison 585, 686
Bristoo Pershad v. Eadha Soondernath 482
Brohmo Moyee v. Chettur Monee 1080
Brojendro Coomar Eoy v. The Chairman of the Dacca Municipality 1043
Brojo Kishoree Dassee v. Shreenath Bose 105, 431, 859, 890, 969, 1074
Brojo Kishore Gujendar v. Haree Kishen Doss 687
Brojo Kishore Mitter v. Eadha Gobind Dutt 450, 451, 461
Brojo Mohun Thakoor v. Gouree Pershad et al 106, 431
B. Eunjeet Singh v. Obhye Narain Singh 912
Broojosoondery v. Luchmee 221
Brown v. Cure of Montreal 560
Brown v. Eandle 651
Buddha Singh v. Laltu 105, 109, 111
Buhuns V. Lalla Buhooree 159
Bukshee Bimodi Lai v. Bukshee Deokee Nundon 666
Bulakee Lall et al v. Musst. Indurputtee Kowar 778
Bulakidas v. Ghama 569, 590, 591
Bulakidass Govindass v. Keshavlal Chhotalal 98
Bulbhudda Bhourbhur v. E. Juggernath Sree Chundun 163
Buljor Eai v. Musst. Brinja 228
Bullubkant Chowdree v. Kishenprea Dassee 847
Buraik Chuttur Singh et al v. Greedhari Singh 731
Burdum Deo Eoy v. Punchoo Eoy 104, 428
Burjorjee Cursetjee Panthakee v. Muncherjee Kuverji 631
Burrell v. Dodd 178
Burtoo Singh v. Earn Parmessur Singh 687
Burwaree Chand Thakur v. Muddun Mohun Chuttoraj 199
Butler V. Baker 1071
Bykant Mony Eoy v. Kristo Soondery Eoy 841, 881, 904, 905, 1036
C. D. Eane (see below, Eane).
C. Hureehur Pershad Doss v. Gocoolanund Doss 411, 682
XXVlll LIST OF CASES CITED.
PAGE
Cahotty Pillai v. Yella Pillai 671
Cally Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry 188, 219
Campbell v. Hall 1
Camumah (B.) v. B. Chinna Venkatasa 844
Cassinath Bysack v. Hurrusoondaree Dosse 249
Cavaly Vencata Narrainappah v. The Collector of Masulipatam 93
Cecil V. Butcher 160
Chaghanlal v. Bapubhai 636
Ch. Govind v. Godhole 91, 94
Chala Condu Alasani v. C. Katnachalam et al 668
Challa Papi Eeddi v. Challa Koti Eeddi 961
Chamaili Kuar v. Earn Prasad 172, 564, 576, 688
Chamantlal v. Ganesh 127, 215
Chamar Haree v. Kashi 85, 102
Chandika Baksh v. Muna Kuer 2, 104
Chandania v. Salig Earn 1084
Chandra Deo v. Mata Prosad 168
Chand Hari Maiti v. Eajah Norendro Narain Eoy 665
Chandhri Eisal Singh et al v. Balwant Singh et al 88
Chanvirapa v. Danava 624
Chaudhri Ujagar Singh v. Chaudhri Pitam Singh 64
Chandra Kunwar v. Chaudhri Narpat Singh 1023, 1074, 1082
Chandra v. Gojrabai 1059
Chandrabhagabai v. Kashinath Vithal 229, 697
Chandra Sen v. Ganga Bam 576
Chattar Lalsingh v. Shewukram 281
Cheda Lai v. Gobind Earn 223
Chelikani Tirupati Eaya v. E. S. Venkata Gopala Narasimha 463
Chelikani Venkayyamma v. Ch. Venkataramanayamma 101
Chenava v. Basangavda \ 103, 809, 1061
Chengama v. Munisami 722
Chenbasawa v. Pampangowda 902
Chennapah v. Chellamanah 164
Chetty Colum Comara Vencatachella v. Eajah Eungasawmy Jyengar 350,
570, 591, 592, 688
Chhittar v. Goura 83
Chidambaram Chettiar v. Gouri Nachiar 633, 634, 765
Chidambara v. Koothaperumal 168, 587
Chimnaya Nayudu v. Gurunatham Chetti 571
Chiman Lai v. Eamchandra 826, 962
Chinna v. Tegrai Chetri 155
Chinna Gaundan v. Kumara Gaundan 818, 926, 927
Chinna Nagayya v. Pedda Nagayya 925
Chinnasami v. Kunja Pillai 105, 116
Chinnarama v. Kristna Ayya 1053
Chinnaramakristna Ayya v. Minnatchi Ammal 1053
Chintaman v. Sitaram .- 1073
Chintamanrav v. Kashinath 587
Chintu V. Dhondu 970, 1074
LIST OF CASES CITED. XXIX
PAGE
Chitko Eaghunath v. Janaki 187, 977, 979, 986, 1011
Chockalinga v. Subbaraya 583
Chooneena v. Jussoo Mull Deveedass 285
Choorah Monee Bose et al v. Prosonno Coomar Mitter 466
Chooramun Singh v. Shaik Mahomed Ali 721
Chotay Lai v. Chunnoo Lai 152, 288, 314, 319, 407, 860
Chottoo Misser v. Jemah Misser 90, 94
Chowhdry Chintaman v. Musst. Nowlukho Konwari 2, 151, 153, 506, 676,
679, 681, 682
Chowdry Herasutoollah v. Brojo Soondur Roy 969
Chowdry Hureehar Pershad Doss v. Gocoolanand Doss 154, 256
Chowdry Padom Singh v. Koer Udaya Singh 841, 858, 868, 1059, 1070, 1071
Chowdry Purmessur v. Hunooman Dutt 924
Chowdry Ujagar Singh v. Chowdri Pitam Singh 64
Chuckun Lall Singh v. Poran Chunder Sing 565, 669, 699
Chunder Nath v. Kristo 168
Chundercoomar v. Harbans Sahai 159
Chundermonee Debia Chowdhoorayn v. Munmoheenee Debia 1071
Chundernath Roy v. Kooar Gobindnath 873, 1072
Chundi Churn v. Sidheewari Debi 185, 212
Chundrabulee Debia v. Brody 91, 94
Chundro Sheekar Roy v. Nobin Soonder Roy 3
Chuni Singh v. Hera Mahto 567, 669
Chunilal v. Surajram 141
Chuoturya Run Murdun Syn v. Sahub Purhulad Syn 77, 646
Chutturdharee Lall v. Musst. Parbutty Kowar 1073
Codrington v. Lindsay 1079
Collector of Madura v. Anandayi 785-
Collector of Madura v. Mootoo Ramalinga Sathupathy {The Ramnad case)
2, 3, 11, 13, 16, 51, 139, 349, 350, 769, 783, 784, 785, 796, 814, 845,
857, 859, 861, 865, 867, 869, 871, 878, 879, 882, 895, 898, 972, 988, 1067
Collector of Masulipatam v. Cavaly Vencata Narrainappah 88, 93, 94, 98,
128, 129, 287, 307, 375, 547
Collector of Moorshedabad v. Ry Shibessuree Dabea 1072
Collector of Rutnaghiri v. Vyankatrav Narayan 571
Collector of Surat v, Dhirsingji Vaghbaji 807, 832, 950, 953, 956, 961
Collector of Surat v. Ghellabhoy Narandas 665
Collector of Surat v. Pestonji Ruttonji 190
Collector of Thana v. Hari Sitaram 176, 177, 196, 378, 706, 707
Collector of Tirhoot v. Huropershad Mohunt 806, 907, 1063
Collector of Trichinopoly v. Lakhamani 324
Collector of 24 Pergunnahs v. Debnath Roy et al 711
Colston V. Carre 288
Comulmoney Dossee v. Ramanath Bysack 193, 226, 246, 294
Contra, Chhiddu v. Naubat 287, 289, 296, 709, 760
Contra, Rajah of Kalahasti v. Achigadu 66
Cooper V. Phibbs 1076
Cossinaut Bysack et al v. Hurroosoondry Dossee et al 91, 287, 288, 296, 298
Cotay Hegady v. Manjoo Kumpty 907
XXX LIST OF CASES CITED.
PAGE
Cottington v. Fletcher 160
Court of Wards v. Pirtha Singh 4, 152, 788
Court of Wards v. Kaj Coomar Deo Nundun Singh 152, 679
Courteaux v. Hewetson 660
Coverji v. Bhoga 587
Crastnarao v. Raghunath 826, 1007
Dada Ravji v. Bhau Ganu 570
Dadjee Deorav v. Vitul Devrav 646, 767
Dodoba v. Krishna 635
Daee v. Mothee Nathoo 548, 842, 995, 1032
Daee v. Poorshotum Gopal 542
Dagdu V. Balvant 160
Daji Hiraab v. Sadram 588
Dalahaya v. Narayan 587
Dalsingh v. Dani 99
Dalpat V. Bhagwan 312
Dalpatsing v. Nanabhai et al 350, 570
Dalsukhram v. Lallubhai 752
Dalton V. Angus 796
Damodar v. Bai Meva 689
Damodar v. Dayabhai 224
Damodhur Abaji v. Martand Apaji 389, 788
Damordarbhat v. Uttamram 627, 628, 692, 699, 709
Damodar Madhavjee v Th. Parmanandas Jeevundas 710
Damodhar Misser t;. Senabutty Misrain 624, 627, 709, 712, 714, 750
Darlatrav v. Narayanrav 760
Dasaradhi v. Joddumoni 583
Dattatraya v. Mahadaji 682
Dattatraya Vishnu v. Vishnu Narayan 653
Datti Parisi Nayudu et al v. Datti Bangaru Nayudu et al 368, 546
Daulat V. Mehr 173, 663, 669, 574, 591, 688
Davalata v. Beru bin Yadoji et al 565
Davies v. Otto 160
Davis V. Turvey „ 628
Davlatrao bin Ramrao Mane Patel v. Narayanrao bin Khunderao Mane
Patel 569, 590, 591, 593
Daya v. Sri 166
Daya Bechur v. Bai Ladoo 122
Dayachander v. Hemchand 584
Debee Dial v. Hurhor Singh 931, 954
Debendronath v. Odit Churn Mullick 716
Debi V. Jadu 168, 587
Debi Sahai v. Sheo Shankar 313
Debi Parshad v. Thakur Dial 71, 327, 705, 754
Debia v. Koroona 226
Deen Dyal Lall v. Jugdeep Narain Singh {Been DyaVs case) 161, 167, 170,
171, 566, 577, 579, 580, 581, 582, 583, 585, 588, 592, 611, 615, 616, 652,
653, 687, 694, 702
Deeno Moyee Dosee v. Doorgapershad Mitter 903
LIST OF CASES CITED, XXXI
PAGE
Denys v. Shuckburgh 644
Deo dem Kissen Chundershaw v. Baidam Bebee 1003
Deo Kishen v. Bubh Prakash 149, 150
Desai KallianraV s case. See Government of Bombay v. Desai. Kallianrai.
Dev Pershad v. Lujoo Roy 98, 315
Devacooverbai's case (see Pranjivandas v.)
Devapa et al v. Hemsheti Shivapa 651
Devapa Mahabala v. Ganapaya Annaya et al 632, 648
Deva Singh v. Ram Manohar 576
Dewakur Josee et al v. Naroo Keshoo Goreh 672
Deyanath Roy et al v. Muthoor Nath Ghose 108, 457
Dhadphale v. Gurav 186
Dharani Kant v. Kristo Kumari 158
Dharmaji Vaman et al v. Gurrav Shrinivas et al 623, 626
Dharraa Dagu v. Ramkishna 831, 935, 937, 943
Dhodyela et al v. Malanaik 362
Dholsang Bhavsang v. The Collector of Kaira 664
Dhondi v. Radhabai 302,320
Dhondo v. Balkrishna 715
Dhondu v. Ganga 436
Dhoolubh Bhaee v. Jeevee 122, 286
Dhunoopdaree Lall v. Gunpat Lall 669
Dhurm Das Pandey v. Musst. Shama Sundri Debea 74, 663, 669, 670,
1016, 1038, 1069
Dhurrum Singh v. Kissen Singh 560
Digumber v. Motilal 143, 144, 147
Dilraj Koonwar v. Sooltan Koonwar 1027
Dinkar Sitaram Prabhu v. Ganesh Shivaram Prabhu 881, 893, 895, 906
Dinonath Shaw v. Hurrynarain Shaw 671
Dino Moyee Chowdhrain v. A. D. C. Rehling 903
Divakar Vithal Joshi v. Harbhat bin Mahadevbhat 176, 200, 328
Diwan Ram Bijai v. Inderpal Singh 158
Dobie V. The Temporalities Board 1
Doe V. Brightwen 589
Doe V. Ganpat 219, 291, 593
Doe V. Hughes 567
Doe V. Summerset 567
Doe dem Colley Doss Bose v. Debnarani Koberanj 407
Doe dem Cooper v. Collis 224
Doe dem Crosthwaite v. Dixon 661
Doe dem Gocalchandar Mitter v. Tarrachurn Mitter 631
Doe dem Goculkissore Seat v. Ramkissno Hazarah 220
Doe dem Goluckmoney Dabee v. Digambar Day 88, 89, 93
Doe dem Green v. Baker 570
Doe dem Gunganarain v. Bulram Bonnerjee 91, 288
Doe dem Hencower Bye v. Hanscower Bye 907, 932
Doe dem Kora Shunko Takoor v. Bebee Munnee 924
Doe dem Kullammal v. Kuppu Pillai 285, 294, 463
Doe dem Munnoo Lall v. Goper Dutt .* 618
XXXii LIST OF CASES CITED.
Doe dem Rajchunder Paramanic v. Bulloram Biswas 298
Doe dem Ramanund Mookopadhia v. Ramkissen Dutt 287
Doe dem Sibnauth Roy v. Bunsook Buzzary 288
Dondi V. Radhabai 106
Doolichand v. Brij Bbookan 190, 246
Doorga Cburn Surmah v. Jamga Dossee 670
Doorga Dayee et al v. Poorun Dayee et al 91, 297, 301, 475,
Doorga Persad's case 570
Doorga Pershad v. Kesho Persad 570, 574, 623, 625, 701, 719, 1070
Doorga Pershad et al v. Musst. Kundun Koowar 631, 632, 639
Doorganath Roy v. Ramchunder 199
Dosibai v. Ishwardas 175
Dowlut Kover v. Burma Deo Sahoy 98
Drake v. Mitchell 586
Drake {ex parte) 586
Drobo Misser v. Srineebash Misser 199
Dugappa Sheti v. Venkatramnaya 616, 653
Duke of Bedford v. Coke , 160
Dukhina Dossee v. Rash Beharee Mojoomdar 903
Dular V. Dwarka 628
Dularchand v. Balramdass , 568
Duleep Singh et al v. Sree Kishoon Pandey 270
Duljeet Singh v. Sheomunook Singh 633, 754
Duneshwur v. Deoshunkur 407
Durbar v. Harsur 164, 587
Durbaree Sing v. Saligrara et al 626, 755
Durhhunga Kaj case 2
Durga Dat v- Gita 83
Durga Persad v. Keshopersad 205
Durga Prosad v. Broja Nath Bose 284, 289
Durma Samoodhany Ummal v. Coomara Venkatachella Reddyar ... 911, 1034
Durvasula Gangadhurudu v. Durvasula Narasammah 668
Duroo Singh v. Rai Singh 112
Duttnaraen Singh v. Ajeet Singh 1031
Dutt Zabho Lannauth Tha v. Rajunder Narain Rae 118
Duyashunker v. Brijvullubh 726
Dwarkanath v. Mahendranath 149
Dwarkanath Bysack v. Burroda Persaud Bysack 198, 224
Dyke v. Walford 58
E. K. Acharjee Chowdhry v. Hurischandra 987
Edathil Itti v. Kopashon Nayar 273
Ebbs V. Boulnois 796
Ekradeswar v. Bahuasin 2, 154, 256, 679, 682
Eshan Kishor Acharjee v. Harischandra Chowdhry ,. 961, 1009
Faez Bakeh v. Fukurudin 158
Faizuddin v. Tincowri 893
Fakirappa v. Yellappa 64, 133
LIST OF CASES CITED. XXXlll
PAGE
Fakirchand v. Motichand 161
Fanindra Deb v. Kajiswar 5
Fatesangji v. Hasisangji 5, 153
Fatmabibi v. Advoate General 211, 221
Forbes v. Meer Mahomed Tuquee 201, 202
Freke v. Lord Carbery 706, 707
G. V. K 279
Gadadhar Bhat v. Chandrabhagbai 93, 119, 216, 286, 297, 321
Gadgeppa Desai v. Apaji JivaDrao 718
Gajapathi Nilmani v. Gajapathi Eadhamani 95
Gajapati Eadhamani v. Pusapati Alakarajeswar b3
Galla Motirara v. Naro Balkrishna 647
Ganap v. Subbi 298
Gandhi v. Bai Jadab 302, 313
Gane Bhive v. Kane Bhive 571
Ganendro Mohun Tagore v. Rajah Juttendro Mohun Tagore {See Jotendro
Mohun Tagore).
Ganesh v. Jewach 567, 623, 627, 628
Ganesh v. Eamchandra 671
Ganesh v. Yanmnabai 244
Ganeshgiri Gosave v. Baba bin Eamapa Naik 181
Ganesh Moreshwar v. Prabhakara Sakharam 200, 744
Ganga Bisheshar v. Prithi Pal 172, 205, 564
Ganga Jati v. Ghasita 99
Ganga Prasad et al v. Phool Singh et al 623
Gangapersad Eoy v. Brijessurree Chowdhrain 1053
Ganga Sahai v. Hira Singh 148, 189
Ganga Sahai v. Kesri 117
Ganga Sahai v. Lekhraj Singh 9, 934, 944
Gangabai v. Anant 790, 832, 945
Gangabai v. Krishnaji 246, 253, 288
Gangabai v. Eamanna 215, 651
Gangabai v. Naro Moreshvar 545, 556
Gangabai v. Sitaram 243, 245, 252, 713
Gangabai v. Vamanaji 164, 705, 739
Gangabai v. Thavar Mulla 223, 224
Gangabai v. Tarabai 1084
Ganagadhur v. Yellu 83
Gangaram v. Balia et al 311, 466
Gangava v. Eangangavda 1038, 1071
Gangu V. Chandrabhagabai 149
Gangubai kom Shidapa v. Eamanna bin Bhimanna 172, 564, 566
Gangulu v. Ancha Bapulu 583
Ganpat v. Moroba 194
Ganpat v. Tukiram 83, 91
Ganpat Pandurang v. Adarjee Dadabhai 718
Ganpat Venkatesh v. Gopalrao 709, 722
Gauri Devama's case 661
H.L. C
XXXIV LIST OF CASES CITED.
PAGE
Garurudhwaja v. Saparandhwaja 2
Gatha Ram Mistree v. Moohita Kochin Atteah Domoonee 84, 994
Gauri v. Chandramani 73, 75, 245, 674
Gauri Sahai v. Rukko 455
Gavadappa v. Girimalla 876
Gavri Shankar v. Rajaram 614, 615
Gavuri Devamma Garu v. Raman Dora Garu 132, 429, 661
Gayabai v. Shridharacharya 886, 889
Gaya Din v. Bunsi Kuar 652
Genda v. Chatar 199
General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput-
sing 89, 372
George Clarke v. Bindavun Chunder Sircar et al 643
Gharibullah v. Khalak 173
Ghelabai v. Pranjivan 565
Girdhar v. Kalya 560
Girdlmr Purshotum ei al v. Gcvind et al 644
Girdhari Lall v. Kanto Lall {Girdhari LalVs case) 73, 162, 166, 167, 169,
192, 204, 577, 578, 579, 580, 581, 582, 583, 587, 595, 596, 600, 625, 660, 687, 732
Girdharee Sing v. Kolahut Sing 88, 287, 681
Giriapa v. Ningapa 67, 1044
Girianna v. Honana 253
Girjabai v. Sadashiv 172, 194, 632
Gobardhan v. Dasi 226
Gobin Chundra v. Anand Mohan 1069
Gobin Chunder et al v. Dulmeer Khan 287, 299
Gobind v. Abdul Ayyam 149
Gobindprasad v. Moheschandra 146
Gobind v. Qayyam 98
Gobind Chunder Mookerjee v. Doorga Parsad Baboo 562, 671
Gobind Soondaree Debia v. Juggodumba Debia 881, 887
Gobindo Nath Roy v. Ram Kanay Chowdry 1021, 1042, 1070, 1079
Godavribai v. Saqunbai 229, 252
Gojabai v. Bhosle 134, 141, 279, 281, 282, 295
Gokibai v. Lakhmidas 252, 254
Gokool Pershad v. Etwari Mahto 568
Gokoolanund Doss v. Musst. Wooma Daee 914, 915, 927, 1074
Gokuldass v. Hurgovindass 765
Gokulchund v. Narain Dass 1049
Gokul Singh v. Bhola Singh 287
Golabdas v. Coll. of Surat 175
Goluck Chunder Bose v. Raghoonath Sree Chunder Roy 200
Goluck Chunder Bose v. Ram Chilla Dayee 75, 164, 722
Goma Mahadev (or Mahad Patel) v. Gokaldass Khimji 615, 652
Gonda Kooer v. Kooer Oodey Singh 300
Goodtitle dem King v. Woodward 673
Goodman v. Grierson 584
Gooroo V. Kylas 105
Goor Pershed v. Sheodin 73, 163
LIST OF CASES CITED. XXXV
PAGE
Gooroo Pershad Roy et al v. Debee Pershad Tewaree 663
Gooroo Pershad Eoy v. Nuffar Doss Roy 300
Gooroo Prosunno Singh v. Nil Madhub Singh 969
Gooroochurn Doss et al v. Goolukmoney Dossee 656, 668
Gooroogobindo v. Hurreemadhab 370
Gooroovummal v. Mooncasamy 1009
Goorova Butten v. Narrainswamy Butten 309
Gopal V. Gokaldas 568
Gopal V. Macnaghten 567
Gopal V. Narayan 823, 840, 842
Gopal V. Vishnu 845, 876, 878, 881, 887, 894, 935, 1060
Gopal V. Naro 812, 882, 897
Gopalacharya v. Keshav Daji 648, 755
Gopal Anant Kamat v. Venkaji Narayan Kamat 634, 652
Gopalasami v. Chokalingam 592
Gopalayyan v. Raghupatiayyan 969
Gopal Chunder v. Gour Monee Dossee 94
Gopaldass v. Damodhar 522
Gopaldass v. Narotam Singh 680
Gopall Dutt Pandey v. Gopallal Misser 740
Gopal Kristna Sastri v. Ramayyangar 76
Gopal Narayan v. Atmaram Ganesh 615, 616
Gopalnarain Mozoomdar v. Muddomutty Guptee 94, 570, 571
Gopal Narhar Saffray v. Hanmant Ganesh Saffray 362, 394, 410, 783, 801
Gopee (or Gopu) Krist Gosain v. Gunpersaud Gosain 663, 655, 666, 670
Gopee Lai v. Musst. Sree Chundraolee Buhoojee 821, 822, 842, 843, 886,
957, 971, 1011, 1013, 1079
Gopeenath Chowdry v. Gooroo Dass Surma 202
Gopekrist v. Gungapersaud 158
Gopenath v. Jadoo 160
Gopinath v. Bhugwat 160
Gopey Mohun v. Sebun Cower 94, 288, 298, 1010, 1031
Gopeymohun Deb v. Rajah Ray Kissen 1023, 1033
Gordhandass v. Prankor 673
Gorkha v. Raghu 407
Gorya Halya v. Undri 93
Gosavi Shree Chundravulee v. Girdharajee 874
Gossain Dowlut Geer v. Bissesur Geer 199
Gossain Surajbharti v. Gossain Ishvarbharti 626
Gossain Surajbharti v. Gossain Rambharti 526
Gourbullab v. Jugernatpersaud Mitter 954, 1031
Gour Hurrie Kubraj v. Mus-st, Rutnasuree Debia 1049, 1052
Gour Chunder Biswas v. Greesh Chunder Biswas 592
Gourinath Chowdree v. Anapoorna Choudhoorain 863
Gouree Kant Roy v. Ghirdhar Roy 202
Gouree Prosad Raee v. Jogmala 821, 886
Government of Bombay v. Damodhar Permanandass 326, 769
Government of Bombay v. Desai Kallianrai Hakoomatrai (Desai
KallianraVs Case) 707
XXXVl LIST OF CASES CITED.
PAGE
Government of Bombay v. Ganga 659
Government of Bombay v. Gridhari Lall Eoy 126
Government of Bombay v. Shri Gridharlalji 706
Govinda v. Lalla Kisbun 159
Govindayyar v. Dorasami 826, 962
Govind v. Godbole 298
Govind Natb E-oy v. Earn Kanay 1037
Govind v. Sakharam 164, 653
Govind v. Trimbak 671, 716
Govind v. Lakshmibai 889
Govind Balkrisbna v. Mahadev Anant 971
Govind Chunder Ghose v. Earn Coomar Dey 589
Govind Monee Dossee v. Sham Lai Bysack 93, 287
Govind Narayan et al v. Vasudev Venayak 652
Govind Purshotam v. Lakshmibai 889
Govind Eamchandra v. Moro Eaghunath 624
Govind Soondaree Debia v. Jugganunda Debia (see Gobind Soondaree).
Govind Visvanath v. Mahadaji Narayan 761
Govinda Oodian v. Alamaloo 765
Govindaya v. Kodsur Venkapa Hegde 631
Govindji Khimji v. Lakhmidas Nathubhoy 246. 285, 392
Govindnath Eoy v. Gulal Chund 152
Govindo Hureehar v. Woomesh Chunder Eoy 466
Govindo Nath Eoy v. Eam Kanay Chowdhry 360
Govmdram v. Vamanrav 166
Graham v. Londonderry 186
Great Berlin Steamboat Co., In re 160
Greedhari Doss v. Nund Kissore Doss Mohunt 198, 199, 621, 524
Greedhari Doss v. Nunkishore Dutt 179
Greeman Singh v. Wahari Lall Singh 372
Gridhari Lall v. The Bengal Government 13, 126, 129, 458, 459, 461, 463
Gudadher Pershad Tewaree v. Sundur Koomaree Debea 861
Gulabdas Jagjivandas v. The Collector of Surat 180, 181
Gulappa V. Tayawa 97, 98
Gundojibawa v. Wamanbawa 523
Gundo Mahadev v. Eambhat 669, 688, 690
Gundo Shiddheshvar v. Mardan Saheb 665
Gunesh Chunder Eoy v. Nilkomul Eoy et al 460, 463
Gunesh Dutt v. M. Moheshur Singh 679
Gunga Mya v. Kishen Kishore Chowdry 1053
Gungapooree v. Musst, Jennee et al 518
Gunga Prasad et al v. Phool Singh et al 623
Gunga Pershad Kur v. Shumbhoo Nath Burmon 89, 92
Gunga' s Case 226
Gunga Narain v. Umesh Chunder Bose et al 688, 729
Gunganath v. Joalanath 706
Gungoo Mull V. Bunseedhur 633, 655, 754
Guni Mahomed v. Moran 567
Gunnappa Deshpandee v. Sunkappa Deshpandee 823, 842
LIST OF CASES CITED. XXXVll
PAGE
Gimesb v. Moheshur 2
Gunnesh Junonee Debia v. Bireshur Dhul 301
Ganpatgir v. Ganpatgir 525
Gunputrao et al v. Vithoba et al 410, 924
Gunput Narain Singb, In re 964
Gunput Singh v. Gunga Persbad 286
Guracbarya v. Bbimacbarya 667
Gurlinga Swami v. Earalaksbamma 809
Gurlingapa v. Nandapa 203, 611
Guruchurn Doss v. Goluckmonoy Dossee 591
Guru Das Dbar v. Bijaya Gobinda Baral 711
Guru GobJn Sbaba Mandal et al v. Anand Lai Gbose 143, 144, 146, 460
Gurunatb Nilkantb v. Krisbnaji Govind 94
Gurusami Cbetti v. Samurti CbiDua Mannar Cbetti 585, 592, 653
Gurusbidagavda v. Rudragavdati et al 327
Gyanendro Cbunder Labiri v. Kalla Pabar Haji 821, 877
Haebutrao Mankur v. Govindrao Mankur (The Mankar Case) 152, 782,
783, 818, 850, 853, 854, 914, 915, 916, 931, 1000, 1022
Haji Ismail, In re 5, 558
Hakim Kban v. Gool Kban 5
Hanmant v. Bbimcbandra 215
Hanmant Ramcbandra v. Bbimacbarya 823, 840, 844
Hardi v. Eudar 171
Hardwarilal v. Gomi 215
Hari v. Bama 144
Hari Gobind v. Akboy Kumar 160
Hari Narayan v. Vitai 83, 96
Haribai v. Laksbmibai 286, 297
Hari Dayal v. Grisb Cbunder 93, 289, 313
Hari Kisban Bbagat v. Kasbi Persbad 90, 94
Hari Vitbal v. Jairam 574, 590, 591, 688
Harjiwan Anandram v. Naran Haribbai 416
Harikissen v. Bajrang 307
Harilal v. Laksbmibai 293
Haridas v. Baroda 226
Harilal v. Pranvlabdas 286, 297, 302, 321
Hammersley v. De Biel 189
Hanaji Cbbiba v. Valabb Cbbiba 650
Hanumantamma v. Rama Reddi 275, 398, 1065
Hanumantba v. Hanumayya 631
Hanmantrao Sadasbiv v. Keru 706
Hanuman Tewari v. Cbirai 818, 927
Harbbaj v. Gumani 174
Hari v. Laksbman 687, 721
Hari V. Maruti 645, 1085
Hari Vydianatbayanna v. Minakshi Ammal 372
Haribbat v. Damodbarbbat 98, 179, 294, 302, 408, 425, 618
Haridas Sanyal v. Prannath Sanyal 646
XXXViil LIST OF CASES CITED.
PAGE
Hariparsad v. Bapuji Kirpashankar 641
Harjivan Anandram v. Naran Haribhai 441
Harpal Singh v. Bishan Singh 66
Haroon Mohamed, In re 173
Harreedass v. Ghirdurdass 720
Harsahaimal v. Maharaj Singh 652
Harvey v. Farnie 358
Hasan Ali v. Naga Mul 152, 924
Hasha v. Eagho 635
Hawkins v. Kemp 1071
Haza Hira v. Bhaiji Modan 168, 660
Heera Singh v. Burzar Singh 1013, 1079
Heerachand v. Mahashunkar 593
Heeralal v. Musst. Konsillah 75, 693
Heeralal Baboo v. Musst. Dhuncoomary Beebee 315
Heeralal Roy v. Bidyadhur Eoy 589
Hemanqini Dasi v. Kedarnath 229, 255, 627
Hembuta v. Coluck Chunder 103
Hemendro Coomar Mullick v. Rajendro Lall Moonshee 585
Herasutoolah v. Brojo Soondur Eoy 969
Higgins {ex 'parte) 586
Hill V. Wilson 191
Himmatsing v. Ganputsing 603, 723
Hiranath Koer v. Earn Narain 676
Hirbai v. Gorbai 157
Hobson V. Sherwood 618
Honamma v. Timanabhat et al 541, 555
Honapa v. Narsapa 160
Hormusji Framji, In re 224
Hoymobutty Debia Chowdhrain v. Koroona Moyee Debia 253
Hullodhur v Eamnath 752
Hunoomanpersaud Panday v. Musst. Baboyee Munraj Koonweree
94, 166, 192, 375, 563, 569, 570, 573, 590, 595, 597
Hunsapore Case (The) 2, 683
Huradhun Mookurjia v. Musst. Mathoranath Mookurjia 789, 813, 841, 844,
857, 1072
Hurdey v. Eooder 581
Hurdwar Singh et al v. Luchman Singh 632
Hureebhaee Soonderjee 768
Huree Kishore Bhya v. Nullita Soonduree Goopta 1080
Hurkisondas v. Mankorabai 858, 870, 889
Hurkoonwar v. Euttun 84
Hur Dyal Nag v. Eoy Krishto Bhoomick 969
Huronath Eoy v. Golucknath Chowdhry 1083
Hurreemohun Shaha v. Sonatum Shaha 505, 510
Hurreewulubh Gungaram v. Keshowram Sheodass 564
Huro Doss Dosteedar v. Sreemutty Huro Pria 132
Hurosoondree Dossee v. Chundermoney Dossey 953, 1003
Huro Mohun v. S. Auluck Monee Dassee 306
LIST OF CASES CITED. XXXIX
PAGE
Hurronath Eoy v. Eundhir Singh 173
Hurrosoondery Debea v. Kajessuri Debea 87
Hurrydoss Dutt v. Eungunmoney Dossee 93, 298
Hurrydoss Dutt v. Shreemutty Uppoomah Dossee et al 88, 99, 408
Husband v. Davis 567
Icharam v. Ganpatram 683
Icharam v. Purmanand 435, 463, 564
Icharam Dayaram v. Eaiji Jaga 635
Ichha Lakhsmi v. Anandram 247
Ichharam Kalidass v. Govindram Bhowanishankar 189
Ilata Shavatri et al v. Ilata Narayanan Nambudiri 556
Imambandi v. Kumleswari 159
Indar Sen Singh v. Harpal Singh 66
Inderjeet Singh et al v. Musst. Her Koonwar et al 457
Inderun Valungypooly Taver v. Eamasawmy Pandia et al ...256, 357, 393, 708
Indrasa v. Sadu 653
Indromoni Chowdhrain v. Behari Lai Mullick 998, 1002
Inga Mulloo Pitchanna v. L. M. Goruppa 644
Isham Chunder Mitter v. Buksh Ali Soudagur 372
Ishwar Shyam v. Earn Kani 157
Isri V. Nasib 627
Isri Dutt V. Hansabati 300, 301
Issur Chandra v. Gopal Chandra 160
Issur Chunder v. Pooruna Beebee 1081
Ishur Panday v. Musst. Buskeela 1073
Jadomoney {see Sreemutty).
Jado Singh v. Musst. Eanee 732
Jadoo V. Bijoynath 714
Jadoo Shat v. Kadumbinee Dassee 570
Jadow Mulji v. Chhagan Eaichund 507, 623, 625
Jadumani (or Judeemani) Dasi v. Khetra Mohun Shil 249, 252, 254, 693
Jagannath Pal v. Bidyanand 637
Jagannatha v. Eadhabai 826, 999
Jagjivandas Javerdas v. Imdad Ali 768, 769
Jagmohan Huldar v. Sarodamoyee Dossee 289
Jagunnadharow v. Kondarow 677
Jaikisondas v. Harkisondas 138, 140
Jairam Dhama v. Musan Dhama 857
Jaitaram Bechur v. Bai Gunga 646
Jamiyatram v. Parbhudas {Jamiyatram's Case) 73, 137, 162, 192, 251, 599,
600, 685, 706, 720
Jadunath v. Eup Lai 160
Jagabhai v. Jagjivandas 587
Jagabhai v. Eustamji 568
Jagadindra Nath v. Heraanta 157
Jagannada v. Papamma 780
Xl LIST OF CASES CITED.
PAGE
Jagannath v. Mannu Lai 173
Jagannath Prasad v. Kanjit Singh 13
Jagannath Prasad v. Eanjit Singh 1084
Jagdish Bahadur v. Sheo Pertab 65, 74
Jagjivandas v. Bai Amba 636
Jagmohandas v. Duksal 569
Jagnnath v. Narayan .' 140, 141
Jairam v. Kondia 587
Jai Singh v. Bijai Pal 841, 855
Jalbhai v. Manoel 5
Jamiyatram and Uttamram v. Bai Jamna 136
Jamna v. Machul Sahu or Sahee 193, 235, 242, 254, 372. 628
Jamna Sani v. Lakshmanrao 664, 698
Jamnabai v. Khimji 97
Jamoona Dassya v. Bamasoondari Dassya 814, 823, 859
Jamunabai v. Eaychand 889, 1037, 1038
Janardhan Pandurang v. Gopal 149
Janglubai v. Jetha Appaji 134
Janki Dibeh v. Sadasheo Rai 866
Jankibai v. Nundram 240, 244
Jankibai v. Sundra 98, 283, 302, 312
Jankisetty v. Miriyala Hammayya 315
Janokee Debea v. Gopaul Acharjea 199, 820, 930
Janokinath v. Mothmanath 83, 96
Jannobee v. Dwarkanath 1038
Jasoda v. Sheo 101
Jawala v. Dharum 5
Javerbai v. Kiblibai 215
Jeeban v. Ramnath 609
Jeewun Punda v. Musst. Sona 984
Jenkins v. Robertson 89
Jervis v. Lawrence 707
Jesing Bhaee et al v. Baee Jeetawowoo 769
Jetha Naik v. Venktappa 73, 192
Jettyapa v. Laxiraaya 686
Jewajee v. Shamrow 769
Jhunna Kuar v. Chain Sukh 88, 381
Jhubboo Lall Sahoo v. Khoob Lall et al 717
Jiban v. Brojo 298
Jijoyiamba Bayi v. Kamakshi Bayi 83, 1016
Jivan V. Kasi Ambiadas 752
Jivanee Bhayee v. Jivu Bhayee 916, 919, 1078
Jivi V. Ramji Valji 253
Jiwan Singh v. Misri Lai 90, 94, 294
Jodoonath Dey Sircar v. Brojonath Dey Sircar 628, 713
Jogendra v. Jugobundhu 614, 646
Jogendro v. Fulkumari 295, 616
Jogesh V. Nritya 807, 853
Jogendro Deb Roy v. Funindro Deb Roy 574, 591, 652
LIST OF CASES CITED. xli
PAGE
Jogindra v. Fulkarni 245
Joharmal v. Eknath 587
Jojeswar v. Ramchand 215
Jogul Kishore v. Shib Sahai 611
Johurra Bibee v. Sreegopal Misser et al 75, 251, 569, 571, 593, 718
Jones V. Robinson 724
Jotee Roy et al v. Bheechuch Meah et al 712
Jotendro Mohun Tagore v. Jogul Kishore 89
Joti Bhimrav v. Balu bin Bapuji 174
Jotindra v. Bejoy 615
Jowala Buksh v. Dharum Singh 589, 843
Joy Chundro Raee v. Bhyrub Chundro Raee 820, 862
Joykisto Cowar v. Nittyanund Nundy 590
Joy Narain Giri v. Girish Chundru Myti 615, 633, 634, 642
Judoo Nath Sircar v. Bussant Coomar Roy 280, 309, 481, 482
Joy Tara v. Rama Hari 226, 254
Joy Tara Dossee v. Roy Chunder Ghose 1077
Joytaram Bechur v. Bai Ganga 699
Jugbundoo Run Sing v. Radasham Narendrc 930
Jugdanund Gosamee v. Kessub Nund Gosamee 539
Jugdeep Narain Singh v. Deen Dyal Lall 270
Juggernath Roy Chowdry v. Kishen Pershad 199
Juggodumba Debea v. Moneruth Mookerjea 857
Juggodumba Dossee v. Puddomoney Dossee 185
Juggut Mohinee Dossee v. Musst. Sookheemony Dossee 155, 186, 189, 198,
200, 202, 203, 624
Jugjeevun Nuthoojee v. Devsunkur Kaseeram 286
Jugmohundas v. Sir Mangaldas Nathubhay 4, 62, 610, 611, 665
Jugomhoun Holdar v. Saradamoyee Dossee 714
Jugunath v. Sheo Shunkar 313
Jullessur v. Uggur Roy 313
Jummal Ali v. Tirbhee Lall Doss 1041
Jumoona Dassya v. Bamasoondari Dassya 842, 845, 846, 853, 857, 861, 972, 1082
Jushadah Raur v. Juggernaut Tagore 288
Jussoda Kooer v. Lallah Nettya Lall 338
Juswant Singh v. Dooleechand 806
Juttendromohun Tagore v. Ganendromohan Tagore {Tagore Case)
58, 90, 150, 180, 181, 182, 183, 184, 185, 197, 200, 202,
219, 221, 223, 610, 619, 664, 740, 796, 981, 1011
Jykowar et al v. Musst. Bhaotee 691
K. Kishen Lalla v. Javallah Prasad Lalla 460, 465
K. Venkatramanna v. K. Bramanna Sastralu 724
Kabain Rai v. Ramchander 105, 115
Kachi Kalinyana v. Kachiyava 66
Kachi Kalyana Rengappa v. Kalakka Thola 154
Kachu V. Kachoba 635, 643
Kachubhai bin Gulabchand v. Krishnabai 631, 633
Kadapa v. Adrashyapa (or Adrashapa) 377
Xlii LIST OF CASES CITED.
PAGE
Kahandas Narandas, In re 1, 3, 4, 5, 6, 8, 202, 976, 1017
Kailash v. Kasti 98
Kalee Churn Singh v. E. Solano et al 570
Kalee Chunder Sein et al v. Adoo Shaikh et al 643
Kalee Chunder v. Sheeb Chunder 1065
Kali Coomar Chatterjee v. Tara Prosunno Mookerjee 1081
Kali Krishna v. Eaghunath Deb 66
Kali Komul Mozoomdar v. Uma Shunkur Moitra 68, 836, 957, 1011, 1025,
1052, 1054
Kali Pershad v. Earn Charan 609
Kalicharan v. Easik 160
Kalidas v. Nathu Bhagwan 568
Kalidass Das v. Krishan Chundra Das 150, 545, 546
Kalidass Kevaldas v. Chotalal et al 568, 573
Kallappa v. Venkatesh 589, 616
Kalleepersaud Singh v. Kapoor Koonwaree 75
Kallee Sunkar Saunyal v. Denendro Nath Saunyal 626
Kally Churn Shaw v. Dukkee Bibee 401
Kally Prosonno Ghose v. Gocool Chunder Mitter 350, 879, 886, 887, 890, 900
Kalova v. Padapa 1073
Kalpagathachi v. Ganapathi Pillai 246
Kalu V. Barsu 564
Kalyan v. Dwarkanath , 225
Kalu V. Koshibai 694
Kalu Narayan v. Hanmapa 718
Kamakshi v. Chakrapay 193
Kamakshi Animal v. Chidambara Eeddi 624
Kamavadhani Venkata Subhaiya v. Joysa Narasingappa 88
Kamesvar Prasad v. Eun Bahadur Singh 93, 94, 166, 173, 376, 688
Kameswara Sastri v. Veeracharlu 173
Kamikhaprasad v. Srimati Jagadamba Dasi 94
Kamini Dassee v. Chandra Pode Mondle 244, 255
Kandasami v. Doraisami Ayyar 618, 624
Kanhya Lall v. Eadha Chum 1082
Kanni v. Ammakannu 98
Kannapalli v. Pucha Venkata 852, 863, 865, 876
Kanto Lall v. Girdhari Lall 687
Kariapa Irapa v. Irapa Solbapa et al 652
Karimuddin v. Gobind Krishna 162
Karpakambal v. Subbayyan 585
Karuppai Nachiar v. Sankara 101
Kartick Chunder v. Gour Mohun Eoy 92
Karunabdhi v. Gopala 858, 1077
Kashee Chunder's Case 694
Kasheepershad v. Bunseedhar 1024
Kasheeshet v. Nagshet 771
Kasheeshuree Debia v. Greesh Chunder Lahoree 253, 1040
Kasheekishore Eoy v. Alip Mundal 569
Kashibai v. Eaghunath 109
LIST OF CASES CITED. xliii
PAGE
Kashibai v. Sitabai 105
Kashinath v. Dadki et al 570
Kashibai v. Tatia 820
Kashi Bashi Ramlinga Swamee v. Chitumbemath Koomar Swamee 520
Kasi Yesaji v. Ramchandra Bhimaji Nabur 645
Kasim Saiba v. Swami 157
Kasturbai v. Shivajiram Devkaram 252, 556, 694
Kastur Bhavani v. Appa 596, 658, 740
Kathaperumal v. Secretary of State for India 160
Kattama Nachiar et al v. Dorasinga alias Gourivallabai 98, 418
Katama Natchiar v. The Rajah of Shivaganga (The Shivagunga Case)
66, 71, 88, 154, 155, 292, 315, 317, 320, 649, 660, 662, 666, 680, 683, 754
Kattusheri Pishareth Kanna Pisharody v. Vallotil Manakel Narayanam 608
Kawal Nain v. Budh Singh 172, 194
Kazi Ahmed v. Moro Keshav 644
Keerut Sing v. Koolakul Sing et al 93, 287
Keerut Nuraen v. Musst. Bhobinsree 942
Keith V. Burrows 584
Kenchava v. Ningapa 826, 966
Kendall v. Hamilton 586
Keppell V. Bailey 183
Kerry Kolitany v. Moneeram Kolita 83, 99, 150
Kesaree et al v. Samardhan 360, 399
Keshuv Chunder Ghose v. Bishun Pershad Ghose 890
Keshare v. Gobind 83
Keshav Sakharam Dadhe v. Lakshraan Sakharam 652
Keshoo Tewaree v. Ishree Tewaree 654
Keshow Rao Diwakar v. Naro Janardhun Patunker 164, 167
Kesserbai v. Vallab Ravji 103, 441
Keval V. Vishnoo 642
Keval Kuber v. The Talukdari Settlement Officer 201, 326
Kewal V. Parbhu 611, 615, 632
Khajah Enaetoollah v. Kishen Soondur et al 643
Khalilal v. Gobind 168, 653
Kharaginal v. Daim 574, 691, 603, 624, 652
Khedro Ojha v. Deo Ranee Kunwar 671
Khemkor v. Umiashankar 164, 237, 393, 556
Kherode Money Dossee v. Doorgamoney Dossee 183, 621
Khetra v. Kasi 248
Khushalbhai Narsidass v. Kabhai Jorabhai 650, 651
Khetramani Dasi v. Kashinath Das 227, 231, 241, 689, 693, 696
Khimji v. Morariji 212
Khitish V. Radhika 224
Khodhabhai Mahiji v. Bahdhur Dalu 103, 422
Khondaji Bhavani v. Salu Shivram 648
Khuggender N. Chowdhry v. Sharupgir Oghorenath 521
Khusalchand v. Mahadevgiri 156, 177, 186, 198, 199
King V. Hoare 585
Kisansing v. Moreshwar 592
Xliv LIST OF CASES CITED.
PAGE
Eiishen Govind v. Ladlee Mohun ^^80
Kishen Shunker Dutt. v. Moha Mya Dossee 1072
KisheDath v. Hurreegobind 69
Kishna v. Tipan 168
Kishori v. Moni Mohun 714
Kkto Kishore Roy v. Issur Chunder Roy 1080
Kiyipattu A. Narayan Nambudri v. Ayikotillatu S. Nambudri 519
Koduthi V. Madu 84
Koer Goolab v. Rao Kurun 148
Koer Sheopershad Narain v. The Collector of Monghyr 748
Kojiyadu v. Lakshmi 99, 554
Kombi V. Lakshmi 690
Komul Monee Bossee v. Alhadmonee Dassee 1069
Kondo Keshav Dhadphale v. Babaj'i bin Apaji Gurrav 185, 389
Zonerrav v. Gururav 589, 700, 703, 711, 723
Konwar Doorganath Roy v. Ramchunder Sen 156, 186, 201, 716
Koodee Monee Dabea v. Tarrachand Chuckerbutty 252, 694
Kooer Goolab Sing v. Rao Kuran Singh 90, 93, 456, 464, 789
Koomaree Debia v. Roy Luchmeeput Singh et al 76, 251, 253, 693
Koonj Behari Chowdhry v. Gocool Chunder Chowdhry 1081
I^oonjbehari Dhur v. Premchand Dutt 205, 281, 287, 297, 710
Koonjehari's Case 710
Koopookonan v. Chinnayan 162
Koor Oodey Singh v. Phool Chund et al 92
Koshal Chuckurwutty v. Radhanath Chuckurwutty 666
Kotarbasapa v. Chanverova 281, 297, 314
Kotta Ramasami Chetty v. Bangari Seshama Nayanivaru 162, 567, 569
Koylasnath Doss v. Gyamonee Dossee 63
Krishna Behari Roy v. Bunwaree Lai Roy 1083
Krishna v. Paramshri 808, 1023, 1061
Krishna v. Sami 150
Krishna v. Subbanna 593, 700
Krishnaji v. Pandurang 13, 15, 105, 139
Krishnabai v. Khangowda 623
Krishnabai v. Shripati ...141
Krishnabhat v. Kapabhat et al 706
Krishnamma v. Gangarao 568
Krishnaji Rajvade v. Sitaram Jakhi 558, 653
Krishnaji v. Renge 587
Krishnaji Mahadev v. Moro Mahadev 669
Krishna Rao Ganesh v. Rang Rao 184, 435, 769
Krishnarao Jahagirdar v. Govind Trimbak 567
Krishnarao Rarachandra v. Manaji bin Sayaji 567, 570
Krishnaramani v. Ananda 221
Krishna Rav (B) v. Lakshman Shanbhogue 589
Krishnarav v. Shankar Rav 880, 887, 1070
Krishnarav Ganesh v. Rangrav 184, 435, 769
Krishnasami v. Rajah Gopala 665
Krishnasami v. Krishnama 560
LIST OF CASES CITED. xlv
PAGE
Kripa Moyee Debia v. Groluck Chunder Eoy 1074
Kripa Ram v. Bhugwan Doss 1083
Krippa Sindhu Patgoshe v. Kanhaya Acharya 667
Krishna Behari Roy v. Musst. Brojeshwari Chowdhrani 1235
Krishnendra v. Debendra 608
Kristniah v. R. Panakaloo 666
Kristniengar v. Venamamalai Jyengar 921
Kristo Beharee Roy v. Bunwaree Loll Roy 108S
Kristayya v. Narasimha 614, 646, 648
Kullean Singh p. Kripa Singh lOOO
Kumara Asima Krishna Deb v. Kumara Kumarkrishna Deb ... 179, 185, 221
Kumaravelu v. Virana Goundan 442
Kumarsami v. Palla N. Chetti 591
Kumla et al v. Muneeshunkar 75, 248
Kunbi Komapen Kurupu v. Changarachan 643
Kunnyah Pande et al v. Ram Dhun Pande 649
Kupoor Bhuwanee v. Sevukram Seoshunker 92
Kuppanamaul v. Panchanadaiyane 631, 765
Kumaram Dayaram v. Haribhoy Virbham 186, 281
Kusum V. Satya 842
Kutti Ammal v. Rada Kristna Ayyana 442, 463
Kuttusheri Pishareth Kanna Pisharody v. Vallotil Manakel Narayanan ... 568
Lakhi v. Bhairah 103
Lacey v. Hill 1077
Lachman v. Giridhar 168
Lachman v. Sanwal 649
Lachman Lall v. Mohun Lall 991
Lachman Kuar v. Debi Prasad 669
Lachmi v. Janki 646
Lachmi Narain v. Wilayti Begam 187
Lahar Puri v. Puran Nath 199
Lahiri v. Lahiri 842
Lakshman v. Ganpatrav 377
Lakshman v. Jamnabai 668, 670
Lakshman v. Kashinath 592
Lakshman v. Main bin Ganu 826, 963, 989
Lakshman v. Narayan 615
Lakshman Ammal v. Tiruvengada 463
Lakshman Dada Naik v. Ramchandra Dada Naik 13, 179, 183, 191, 203,
205, 208, 215, 564, 588, 604, 609, 611, 615, 622, 651, 687, 699, 705, 711,
718, 723, 736, 740, 760
Lakshman v. Radhabai 986
Lakshman Ramchandra v. Saraswatibai 164, 251
Lakshman Ramchandra v. Satyabhamabai 76, 91, 231, 242, 245, 246, 251,
254, 376, 543, 614, 627, 689, 693, 709, 713
Lakshmana Ran v. Lakshmi Ammal 187, 980, 1015, 1069,
Lakshmandass v. Dasrat 7, 643
Lakshmi v. Durga 680
Xlvi LIST OF CASES CITED.
PAGE
Lakshmi Narayan Singh et al v. Tulsee Narayan Singh et al 84
Lakshmappa v. Ramava 811, 818, 821, 832, 838, 844, 908, 925, 930, 932,
941, 943, 950, 952, 953, 955, 956
Lakshmibai v. Dada Nanaji 436
Lakshmibai v. Ganpat Moroba 88, 181, 618, 619, 621, 622, 660, 740, 742
Lakshmibai v. Jayaram Hari 114, 119, 122, 495
Lakshmibai v. Shridhar Vasudev Takle 623, 835, 1022, 1026
Lakshmibai v. Vishvanath Narayan 443
Lakshmibai v. Vishnu 845, 851
Lakshmibai v. Rajaji 863, 1037
Lakshmibai v. Eamchandra 827, 851, 864, 865, 892, 949, 956, 962, 997, 999
Lakshmibai v. Sarasvatibai 866, 869, 897, 1060
Lakshmishankar v. Vaijnath 172, 198, 217, 224
Lakshuman v. Krishnaji Eamaji 649
Lai Kunwar v. Chiranji Lai 1074, 1082
Lai Sheo Pertab Bahadur Singh v. Allahabad Bank 97
Lai Bahadur v. Kanhya Lai 215, 668
Lala Awarnath Shah v. Eani Achan Kuar 91
Lala Govind v. Dowlat 225
Lala Gunpat. Lall et al v. Musst. Toorun Koonwur et al 306
Lala Muddun Gopal v. Khikhinda Koer 690
Lalchand Eamdayal v. Gumtibai 88
Lali V. Murledhar 1084
Lalit Mohun v. Chukkunlal 184, 223, 224
Lalitswar v. Bhabeswar 682
Laljee Sahoy v. Fakeerchand 73, 576, 685, 686, 720
Laljeet Singh v. Eajcoomar Singh 609, 611, 628, 709, 712, 714
Lalla Bissumbhur Lall v. Eajaram 712
Lalla Bunseedhar v. Koonwar Bindeseree Dutt Singh 623
Lalla Chunilal v. Savaichand 202
Lalla Gunpat Lall et al v. Musst. Toorun Kornwur et al 306
Lalla Joti Lall v. Musst. Durani Kower 442, 788, 1040
Lalla Koondu Lall et al v. Lalla Kalee Pershad et al 92
Lalla Mohabeer Pershad v. Musst. Kundun Koowar 152, 639
Lalljeet v. Eaj 628
Lalloobhoy Bappoobhoy v. Cassibai 2, 3, 85, 110, 118, 119, 444, 454, 455, 496
Lallu V. Motiram 587, 597, 687
Lallubhai v. Mankuverbai 14, 15, 106, 110, 114, 122, 139, 302, 467, 599
Lallubhai v. Eaval Bapuji 328
Lalubhai Surachand (or Sevchand) v. Bai Amrit {Bai AmriVs case) 180,
190, 191, 196, 214, 416, 635, 640, 643, 672
Lambert v. Eogers 723
Laroo v. Manickchund Shajee 691
Laroo v. Sheo 464
Laxman Nilkant Pusalkar c. Vinayak Keshev Pusalkar 574, 587, 692, 652, 653
Laxman v. Eamappa 1085
Laxumon Guneshbhat v. Krishnabhat 407, 411
Leech v. Schweder 189
Legard v. Johnson 247
LIST OF CASES CITED, xlvii
PAGE
Leigh V. Shepherd 670
Lekraj v. Baboo Mahtab Chand 623
Lillu V. Annaji 643
Limji V. Bapuji 221
Linga Mulloo Pitchama v. Linga Mulloo Gonappah 631
Lochun Singh et al v. Nemdharee Singh et al 655
Lockyer v. Ferryman 586
Lokenath Mullick v. Odoychurn Mullick 572, 689
Lokenath Eoy v. Shamsoonduree 69, 1049
Lokhee v. Balypuddo 159
Lotlikar v. Wagle 717
Lowis V. Eumney 572
Luchman Singh v. Shumshere Singh 644
Luchmi Dai Koori v. Asman Sing 167
Luchman v. Kalli Churn 159
Luchman v. Kanhya Lai 1024
Luchman Lai v. Mohun Lai 907, 1003
Luchmeenath Rav v. Musst, Bhima Baee 917
Luchmunchunder Geer Gossain v. Kalli Churn Singh 300, 307
Lukkea Debea v. Gunga Gobind Dobey 3
Lukhmun Chunder Dallal v. Modhoo Mockhee Dossee 669
Lulloobhoy v. Cassibai 2, 3, 900
Lutchmeedavee v. Narasimmah 630
Luximon Eow Sadasev v. Mullar Row Baji 654, 670
M. Venkata Kristna et al v. M. Venkatarutnamah 75
M. V. Verdiah v. M. Lutchumia , 618
Maccandas v. Gunpatrao 179, 194, 195, 616, 619, 649
Madavaraya v. Tirtha Sami 287
Madda v. Sheo Baksh 395
Madhava v. Sridhar 180
Madhava Panikar v. Govind Panikar 569
Madhavram tJ. Lakshman 624
Madhavram v. Trambaklal 93, 98, 106, 283, 286, 289, 297, 302, 312, 313, 319, 320
Madhavrao v. Gangabai 245
Madhavrao v. Satyana et al 567
Madhavrav v. Atmaram 682
Madho V. Mehrban 203, 588, 651
Madho Das v. Kamta Das 520, 522
Madhoo Dyal Singh v. Golpar Singh et al 593
Magalal v. Bai Jadab 98
Magluisri Garudiah v. Narayan Rungiah 161
Mahabalaya Parmaya v. Timaya Appaya 568, 589, 592, 616, 652
Mahabeer Persad et al v. Ramsuran 447
Mahabeer Pershad v. Ramyad Singh et al 167, 571, 653, 688
Mahabir v. Moheswar Nath 204, 581
Mahabir Pershad v. Rai Markunda Nath 171
Mahableshvar v. Sheshgiri 718
Mahableshwar v. Durgabai 897
Xlviii LIST OF CASES CITED.
PAGE
Mahabubi v. Amina 377
Mahadavrao v. Gangabai 230
Mahader Ganu v. Kayaji Sidu 1017
Mahadev (or Mahada) v. Narain Mahadeo 588, 688, 720
Mahadew et al v. Trimbuk Gopal 646-
Mahalaxmi v. Grandsons of Kripa Shookul 419
Mahantapa v. Nilgangowa 436, 838, 1046
Mahadevi v. Vikrama 181
Mahadoo bin Jania v. Shridhar Babaji 566
Mabalakshamma v. Venkata 245
Mahadu v. Bayaji SSS
Maharaja Govindnath Eay v. Gulalchund 869
Maharaja Mirza Sri Ananda v, Pidaparti 175
Maharajah Hetnarain v. Baboo Modnarain Sing 649
Maharajah Juggernaut Sahaie v. Musst. Muckun Koomwar ... 349, 1028, 1061
Mahader Ganu v. Eayaji Sidu 977, 1017
Maharaja Kajender Kishen Sing v. Kaja Saheb Pershad Sein 1083
Maharaj case (The) {see Brijbhookunjee Maharaj v.).
Maharaj Kuwar Busdev Singh v. M. Koodur Singh 677
Maharaj Partab Narain Singh v. Maharanee Soobha Kooer 218, 619
Maharaja Earn Kissen v. Sheonandan Singh 631
Maharana Fatesangji v. Desai Kalyanraya 706-
Maharanee Brojosoondery Debia v. Eanee Luckhmee Koonwaree 155, 186
Maharanee Shibessouri Debia v. Mothooranath Acharjo 195, 19&
Maharavlal Mohansingjee Jey&ingji v. The Government of Bombay ... 180, 190-
Mahashoya Shosinath Ghose v. Srimatn Krishna Soondari Dasi 826, 961, 963
Mahasookh v. Budree 208-
Mahoda v. Kalyani et al 305-
Makoondo v. Ganesh 609
Malgauda v. Dattu 866
Malhar Sakharam v. Udegir Guru Champatgir 199, 523-
Malapa v. Basapa 710-
Malikarjuna t>. Durga Prosad 254
Mamedala Venkata Kristna et al v. Mamedala Venkatanitnamah ... 230, 242
Manally Chenna v. Vaidelinga 672:
Manby v. Scott 251
Mancharam Bhagvanbhat v. Pranshankar 200, 671, 716, 744
Mancharjee Pestonjee v. Narayan Lakshumanji 218
Mandakini Dossee v. Adinath Day 893-
Mangala Debi v. Dinanath Bose 73, 75, 245, 329, 672
Mangaldas v. Narsirdas 223
Mangaldas (Sir) Nathubhoy v. Krishnabai 183, 219
Mani Lai v. Bai Tara 76
Manik v. Jagat 812, 1061, 1070
Maniklal Atmaram v. Manchersha Dinshaw Coachman 201, 202, 223, 620
Manikmulla v. Parbuttee 349
Manjamma v. Shishgirirao 907, 933
Manila! v. Bai Eewa 98, 289, 314
Manjanatha v. Narayan 645-
LIST OF CASES CITED. xlix
PAGE
Mankar case (see Haebutrao Mankar).
Mankoonwar et al v. Bhugoo et al 64
Manning v. Gill 160
Manockchund v. Nathu Purshotum 507, 705
Manohar Ganesh v. Keshavram Jebhai 156, 186, 199, 201
Manohar Singh v. Het Singh 212
Mansha v. Jiwan 225
Mantappa v. Buswuntrao 631
Mantena Eayaparaj v. Checkuri Venkataraj 631
Mari v. Chinnammal 103
Marshall v. Button 247, 261
Martin v. Lee 223
Marudayi v. Doraisami 64
Maruti et al v. Vishwanath 649
Maruti Narayan v. Lilachand 567, 690, 692
Masikehand v. Pram Kumari Bibi 153
Matangini v. Jogendra 225
Matangini Debi v. S. Jaykali Debi 554
Matangivi Gupta v. Earn Button Boy 85
Mathews et al v. Girdharlal Fatechand 643
Mathura Naikin v. Esu Naikin 2, 84, 165, 358, 400, 476, 517, 518, 659, 683, 1066
Mayaram v. Motiram 93, 297, 307
Mayaram Sevram v. Jayvantrav Pandurang 574, 692, 662
Maynabai et al v. Uttaram et al 365
Mayor of Lyons v. Advocate General of Bengal 224
M. C. Alasani v. C. Batnachellum 907.
Mayukha Bai Narmada v. Bhagwantrai 280, 282
Megha Sham Bhavanrao v. Vithalrao Bhavanrao 591, 626, 700
Melgirappa v. Shivappa 93, 94
Mesnakshi Naidu v. Immudi Kanaka 171
Merbai v. Perozbai 202
Mhalsabai c. Vithoba Khandappa 849, 930, 932, 935, 943
Miller v. Ranganath 663, 669, 688
Mir Mahar Ali v. Amani 377
Mir Mohamed v. Kishori Mohun 169
Mirangi Zamindar v. Satrucharla Ramabhadra 2
Minakshi v. Innudi Konaka 681
Mithoo Lall v. Golam Nusseerooddeen 614
Mitta Kanth v. Niranjan 716, 744
Modhoo Dyal Singh v. Goolbar Singh et al 687
Mohabeer Prasad v. Ramyad Singh 132, 270, 687, 712
Mohammed Afzul Khan v. Ghulam Kasim 2
Mohandas v. Krishnabai 461, 463
Mohapattur v. Bonomallee 1017
Mohandra Nath v. Kali Proshad 160
Mohar Ranee Essadah Bai v. The E. I. Company 297
Mohendrolal.-p. Rookiney Dabey 865, 1072
Mohesh Chunder Bose v. Ugrakant Banerjee 95
Mohesh Chunder Chuckerbutty v. Koylash Chunder 202
H.L. d
1 LIST OF CASES CITED.
PAGE
Mohesh Chunder Koy v. Chunder Mohun Eoy 150, 543
Mohesh Narain v. Taruck Nath 821, 822, 843, 875, 886, 972, 1011
Mohima Chunder Roy v. Durga Monee 287
Mohunt Bhagwan Ramanuj Das v. Das 847, 891, 937, 1056
Mohunt Bhagoban v. Raghunandan 149
Mohunt Burm Suroop Dass v. Kashee Jha 199, 523
Mohunt Kishen Geer v. Busget Roy et al 90
Mohunt Mudhoobun Doss v. Hurry Kishen Bhunj 538
Mohunt Rumandas v. Mohunt Ashbul Dass 521
Mohunt Shevprokash Doss v. Mohunt Joyram Doss 538
Mokhada Dasi v. Xundu Lai 255
Mokoondo Lai Shaw v. Ganesh Chunder Shaw 179, 194, 621
Mokundo Lall Roy v. Bykunt Nath Roy 1052
Mollwo March & Co. v. The Court of Wards 8
Mondakini v. Adinath 904, 974, 1034, 1039
Monemothonauth Day v. Ouauth Nauth Day 877
Moniram Kolita v. Kerry Kolitani 87, 88, 249, 250, 254, 651, 554, 698, 892
Monoram v. Kalicharan 215
Moodley v. The East India Company 1
Mpoljee Lilla v. Goculdas Valla 671
Moonshee Buzloor Raheem v. Shumsoonissa 84
Moonshee Mahomed Akbar v. Kalee Churn Geeree 198
Mootoor Engadachellasamy Manigar v. Toombayasamy Manigar 677, 738,
744, 761
Moottia Mudalli v. Uppon Venkatacharry 912, 1018, 1025
Mordaunt v. Mordaunt 358
Morehouse v. Rennell 796
Moro V. Balaji 986
Moro Vishvanath v. Ganesh Vithal ... 70, 72, 132, 327, 615, 627, 646, 650, 763
Morun Moyee Debia v. Bejoykisto Gossamee 918, 1053
Moti Muljee v. Jamnadass Mulji 615, 637
Motilal V. Advocate General of Bombay 223, 224
Motilal V. Bai Kashi 254
Motilal c. Ratilal 93, 286, 289, 293, 297, 321
Motirara Sukram v. Mayaram Barkatram 491, 502
Moulvie Mahomed Shumsool Rooder et al v. Shewukram 223, 619, 620
Moulvy Sayyud Uzhur Ali v. Ultaf Fatima 158
Mrinmoyee Dabea v. Bhoobunmoyee Dabea 1083
Mt. Anunda Koonwur v. Khedoo Lai 74
Mudaliar v. Ganga Bissen 223
Mudaliyar v. Mudaliyar 126
Muddun Thakoor v. Kantoo Lall 169
Mudden Gopal Lai v. Musst. Gouraubutty 696
Mudden Gopal Thakoor et al v. Ram Buksh Panday et al {Mudden
ThakooT's case) 169, 172, 579, 582, 660, 706, 711, 739
Mudvallappa v. Garsatava 556
Muhalukmee v. The Three Grandsons of Kripashookull 190
Muhamed Umer Khan v. Muhamed Niazuddin Khan 1084
Mula V. Giidharilal 229
LIST OP CASES CITED. il
PAGE
Mula V. Partab 85
Mulchand v. Bai Mancha 984
Mulhari v. Shekoji 662
Mulji V. Cursando 106
Mulji Bhaishankar v. Bai Ujam 75, 252
Mulji Lalla v. Goculdass Valla 671
Mulkojee v. Balojee 769
Muncha (Bai) v. Narotumdass Kashidass et al 313
Munda Chetty v. Timraaju Hensu 946
Munia v. Puran 300
Munsookram v. Pranjeevundass 93, 95
Murlidhar v. Sapdia 623
Muragayi v. Viramakal 406
Murari v. Suba 560
Murari v. Tayana 91
Murari Lai v. Kundun Lai 223
Murariapa v. Krishnapa 656
Murarji Gokuldass v. Parvatibai 148, 149, 150
Murlidhar v. Supda 623
Murray v. Hall 644
Musst. Ameeroo Nissa Bibee v. B. Otool Chunder et al 672
Musst. Anundee Kooer v. Bachoo Sing 1081
Musst. Anundee Koonwar v. Ivhedoo Lall 626, 627, 637, 638, 753
Musst. Anundmoyee v. Sheeb Chunder Eoy 815, 873
Musst. Balgovinda et al v. Lai Bahadoor et al 542, 545
Musst. Bannoo v. Kasheeram 74, 632, 671
Musst. Bebee Bachun v. Sheikh Hamid Hossein 377
Musst. Bhagbuttee Daee v. Chowdry Bholanath Thakoor, 89, 93, 185, 299,
619, 981, 1020, 1078
Musst. Bhilu V. Phul Chand 693
Musst. Bhoobun Moyee Debia v. Earn Kishore Acharjee Chowdry 84, 87,
90, 92, 182, 215, 844, 852, 857, 861, 862, 863, 876, 878, 881, 887, 888, 900,
905, 979, 1032, 1035, 1036, 1041, 1049, 1079
Mu&st. Bhowna et al v. Eoop Keshore 270
Musst. Bhuganee Daiee et al v. Gopaljee 455
Musst. Brijimalee v. Musst. Pran Piaree 120
Musst. Cheetha v. Baboo Miheen Lall 565, 618, 651, 671
Musst. Chimnee Baee v. Musst. Guttoo Baee 891
Musst. Deokee v. Sookhdeo 554
Musst. Deowanti Koonwar v. Dwarkanath 614
Musst. Deepoo v. Gowreeshunkur 1062
Musst. Dig Daye et al v. Bhuttun Lall et al 456
Musst. Doorga Bibee et al v. Janaki Pershad 466
Musst. Doorga Koonwar v. Musst. Tejoo Koonwar 286
Musst. Dullabh De v. Manee Bibi 931, 939, 1022, 1074
Musst. Duloon Koonwar v. Sungum Singh 250, 251, 253
Musst. Edul Koonwar v. Koonwar Debee Singh 1062, 1073
Musst. Ganga Jati v. Ghasita 149, 555
lii LIST OF CASES CITED.
PAcu-:
Musst. Ghylannee v. Nirpal Singh 960
Musst. Golab Koonwar v. The Collector of Benares 164
Musst. Goolab v. Musst. Phool 215, 1021
Musst. Gowra Chowdhrain v. Chummun Chowdhry 63
Musst. Gyankoowur v. Dookhurn Singh et al 315, 407
Musst. Heera Kooeree v. Ajoodhya Pershad 696
Musst. Himulta Chowdrayn v. Musst. Pudoo Munee Chowdrayn 240, 693
Musst. Imrit Koonwar v. Koop Narain 976, 979
Musst. Indro Kooer et al v. Shaikh Abdool Purkat et al 307
Musst. Josoda Koonwar v. Gowrie Byjonath Sohaesing 641
Musst. Jye Koonwar v. Bhikaree Singh 649
Musst. Jymuni Dibiah v. Eamjoy Chowdry 84, 89
Musst. Khukroo v. Joormuk Lall 693
Musst. Kollaney Kooer v. Luchmee Pershad 619
Musst. Kooldeep Kooer v. Runjeet Singh 687
Musst. Ladoo v. Musst. Oodey Kowree 1074
Musst. Lalti Kuar v. Ganga Bishen et al 76, 164, 692
Musst. Mohroo Kooeree v. Musst. Gunsoo Kooere 641
Musst. Mooneea v. Dburma 1030
Musst. Mooniah et al v. Musst. Teeknoo 666
Musst. Mulleh v. Purmanund 1076
Musst. Muucha v. Brijbookan et al 628
Musst. Murachee Koour v. Musst. Ootma Koour 409, 462
Musst. Nouruthum Kooer v. Baboo Gouree Dutt Singh et al 693
Musst. Oodey Koonwur v. Musst. Ladoo 868
Musst. Pearee Dayee v. Musst. Hurbunsee Kooer 814, 1067
Musst. Phoolbash Koonwar v. Lalla Jogeshwar Sahoy 324, 666, 668, 581, 721
Musst. Phooljhuree Kooer v. Earn Pershun Singh 632, 641
Musst. Pitum Koonwar v. Jog Kishen Doss et al 429
Musst. Radha v. Bisheshur Dass 281, 295
Musst. Radyat v. Madhowjee Panachand 265, 516
Musst. Raj Koonwar v. Musst. Inderjeet Koonwar 1085
Musst. Ramdan v. Beharee Lall 419
Musst. Rutna Dobain v. Purladh Dobey 1034
Musst. Sabitra Daee v. Suturjhun Sutputtee 986, 1071
Musst. Shibo Kooeree c. Joogun Singh 806, 857
Mua&t. Solukhna v. Ramdolal Pande 864, 866, 986, 1020, 1034
Musst Subudra Chowdryn v. Golooknath Chowdree 813, 862, 1069
Musst. Suraj Mookhi Koonwar v. Musst. Bhagavati Koonwar 329
Musst. Tara Munee Dibia v. Dev Narayan et al 857, 966, 1017, 1071
Musst. Tarinee v. Bamundoss Mookerjea 813, 1015
Musst. Thakoor Dayhee v. Rai Balack Ram 91, 93, 98, 301, 318, 494, 495, 946
Musst. Thakorain v. Mohun Lall 858
Musst. Thukrain Sookraj Koowar v. The Government 200
Musst. Tikdey v. Lalla Hureelal 932, 945
Musst. Tukroonissa Begum et al v. Musst. Mogul Jan Bebee 643
Musst. Umroot et al v. Kulyandass et al 459, 460, 466, 467
Muthsami v. Nallakulantha 614
Mutsaddi Lai v. Kundun Lai 869, 861, 871, 872, 903, 1067, 1068
LIST OF CASES CITED. liii
PAGE
Muthayya v. Ninakshi , 1024
Muttamal v. Vengalakshmi Amraal 442
Muttammal v. Kamakshy Ammal et al 556
Mutta Vaduganadha Tevar v. Dorasingha Tevar 2, 9, 98, 99, 139, 313, 314,
318, 319, 320, 407, 408, 663, 683
Muttayan Chettiar v. Sangili Vira Pandia alias Sivagiri Zamindar
{Muttayan Chettiar's Case) 76, 139, 154, 163, 168, 192, 204, 234, 279,
448, 585, 656, 659, 680, 685, 687
Mutteeram Kowar v. Gopaul Sahoo 92
Muttumaran v. Lakshmi 584, 734
Muttusvami Gaundan et al v. Subbiramaniya 761
Muttuswamy Jagavera Yettappa v. Venkataswara Yettappa 78, 393, 546
Muttusawmy Naidu v. Lutchmeedevumma 912, 950, 956
Muttuvadaganadha v. Periasami 66, 102
Muttuvelayudu v. Parasakti 544
Myna Boyee v. Ootaram 5, 178
Nachiappa Chettiar v. Chinnasami Naicker 66
N. Chandrasekharudu v. N. Brahmanna 823, 842, 896, 1028
Nagabhushanam v. Seshamma Garu 844
Nagalinga Mudali v. Subbiramaniya Mudali 609, 730, 733, 762
Nagalutchmee Ummal v. Gopoo Nadaraja Chetty 182, 215, 593, 594, 978
Nagappa v. Subba Sastri 823, 842
Nagappa Nyair v. Mudundee Swora Nyair " 631, 765
Nagardas' Case 664
Nagardas v. The Conservator of Forests 664
Nagesh v. Gururao 101
Nagindas Bhugwandas v. Bachoo Hurkissondas 68, 836
Naginbhai Dayabhai v. Abdulla bin Nasar 563, 665
Nahak Chand v. Earn Narayan 666
Nahalchand v. Hemchand 109
Nahalchand et al v. Magan Pitamber 569
Nahalchand v. Bai Shiva 86, 246, 392
Naik V. Honama 75
Naikin Case (see Mattura Naikin v. Esu Naikin).
Nallanna v. Pounal 102
Nallappa Eeddi v. Balammal et al : 622
Nallayappa v. Ambalavana Pandara Sannadhi 199
Nam Narain Singh v. Ramoon Paurey 200, 202, 217
Nanabhai Vallubdass v. Nathabhai Haribhai 614, 646, 700
Nanabhai v. Achratbai 711
Nanaji v. Tukaram 742
Nana Narain Rao v. Haree Punth Bhao et al 182, 619, 740
Nana Tawker v. Ramachandra Tawker 62
Nanchand Hunsraj v. Bapu Shaeb Rustambhai 718
Nand Kishore v. Ahmad Ata 160
Nand Kumar (or Kuwar) et al v. Radha Kuari 89, 372
Nanhak Joti v. Jaimangal Chaubey (Nan Hale JotVs Case) ... 576, 596, 652
Naoroji Beramji v. Rogers 3
liv LIST OF CASES CITED.
PAGE
Naraen Khootia v. Lokenath Khootia 378
Naraganti Achammagaru v. "Venkatachalapati 66, 662, 663
Narain v. Sarnam 593
Narain Chunder Chuckerbutty v. Dataram Roy 180
Narain Dhara v. Rakhal Gain 365, 403
Narain Khootia v. Lokenath Ehootia 154, 680
Naraini Kuar v. Chandidin 60
Narain Mullick v. Badi Eoy 177
Narain Mai v. Kooer Narain Mytee 1042
Narainee Debeh v. Hurkishore Eai 875, 1039
Narain Singh v. Pertum Singh 687
Narasammal v. Balaramacharloo 11, 920, 1010, 1018, 1025, 1026
Narasimharow v. Antaji Virupaksh 165
Narasimha Surenami 102
Narasimma v. Mangammal 102
Narayana Reddi v. Vardachala Reddi 844
Narayan v. Venkatacharya 587
Narayan Babajee v. Nana Manohar ... 13, 139, 152, 649, 817, 851, 855, 866
898, 902, 952
Narayan v. Nathaji 699, 711
Narayan Bubaji v. Pandurang Ramchandra 648
Narayan Bharthi v. Laving Bharthi 78, 155, 357, 368, 525
Narayan Bhivrav v. Kashi 661
Narayan Damodar v. Balkrishna Mahadev 616
Narayanacharya v. Narso Krishna {Narayanachariya's Case) 162, 167, 168,
340, 594, 598, 658, 685
Narayan Deshpande v- Anaji Deshpande 654
Narayan Gop Habbu v. Pandnrang Ganu 674, 575, 591, 652
Narayan Govind v. Sarjiapa 768
Narayan Jivaji v. Anaji Koneirrao 699
Narayanrao Damoder Dabholkar v. Balkrishna Mahadev Gadre ... 569, 596, 685
Narayan Ramchunder v. Luxmeebaee 916
Narayanrav v. Javherbahu 587
Narayanrav Ramchundra v. Ramabai 251, 252, 253, 254
Narayanrav Sudanand v. Chintaman 176, 177, 188, 195, 199, 523, 716
Narayan Venayek v. Balkrishna Narayan 616
Narayen c. Balkriehna 594
Narbadabai v. Mahadev Narayan 75, 191, 193, 216, 226, 246, 253, 254, 372,
605, 1030
Narendra Nath Sarcar v. Karaalbansi 181, 213
Narhar Govind v. Narayan Vithul 854, 901
Narhar Singh v. Dirgnath Kuar 244, 245, 254, 721
Narmada v. Ganesh Narayan Shet 555, 556
Naro Trimback v. Haribai 713
Narotam Lalabhai v. Nanka Madhav 392
Narotam v. Nanka 86, 246
Narottam Jagjivan v. Narsandas 74, 129, 618, 740
Narsain (see Nursing Narain).
Narsammal v. Balarmacharlu 347
LIST OF CASES CITED. Iv
PAGE
Narsinhbhat v. Chenapa Ningapa 660, 588
Narsappa Lingapa v. Sakharam 103, 302, 422, 426, 437
Narsida&s Jitram v. Joglekar 721
Narsingh Bhut v. Chenapa Lingapa 660, 588, 718
Narsingh Khanderav v. Yadaorav 266, 267
Narsinha Hegde v. Timma 594
Naru Pira v. Naro Sideshvar 706
Nasir Husain v. Mata Prasad 191
Natchiarammal v. Gopal Krishna 193, 231, 261
Natha Hari v. Jamni 88
Nathaji Krishnaji v. Hari Jagoji 360, 831, 937, 943, 1014, 1035
Nathu V. Mahadu 655
Nathubhai v. Bai Hansgavri 671, 716
Nathubhai Bhailal v. Javher Eaiji 86, 246, 247, 392, 402
Nathuni Mahton v. Manraj Mahton 568
Natthu Singh v. Gulab Singh 1084
Navalram Atmaram v. Nandkishor Shivnarayan 315, 408
Nawab Azimut Ali Khan v. Hurdwaree Mull 158
Nawab Kai v. Bugawuttee Koowar 933
Nawal Singh v. Bhagwan Singh 709
Nehalo v. Keshen Lall 554
Neelkisto Deb Burmono v. Beerchunder Thakoor 2, 3, 69, 65, 66, 72, 154,
562, 654, 666, 670, 677, 679, 788
Nellaikumani (or Nellaikumara) Chetti v. Marakathammal 300, 475
Nhanu Lukshraan Golam v. Eamchandra Vinayak 592
Nidhoomoni Debya v. Saroda Pershad 914, 1068, 1074, 1078
Nihalkhan v. Hurchum Lai 299
Nilcomul Lahuri v. Jotendro Mohun Lahuri 179, 350, 890, 1051
Nilkant Chatterjee v. Peari Mohan Dass 162
Nilkant Ganesh v. Shivram Nagesh 188
Nilmadhab Das v. Bisswambhar Das et al 356, 809, 813, 828, 928, 930, 931,
961, 989, 1062, 1066, 1072
Nilmoni Singh v. Bakranath 177
Nimaye Churn Putteetundee v. Jogendro Nath Banerjee 199
Nirmal v. Siddick 158
Nirunjun Bharthee v. Padaruth Bharthee 620
Nissar Murtojah v. Kowar Dhunwant Singh 79
Nithokissoree v. Jogindra 263
Nitto Kallee Debee v. Obhoy Gobind 1084
Nitto Kishoree Dossee v. Jogendro Nath Mullick 228
Nittyanund Ghose v. Kishen Dyal Ghose 968, 1003, 1004
Nitya v. Soondra Dasi 226
Nobinchunder et al v. Guru Persad Doss 89
Nobin Chunder v. Dokhobala 158
Nobin Chunder v. Issur Chunder 84
Nobin Chunder v. Janardhan Misser 3
Nobin Krisna Chuckravati v. Earn Koomer Chuckravati 718
Nobkissen Mitter v. Harrischunder Mitter 744
Nobkissen Eaja's Case (see V. Suyamuee v. Eamanya).
Ivi LIST OF CASES CITED,
PAGE
Nobokishore v. Hari 285
Noferdoss Roy v. Modhusoondari 89, 91
Nogender Chunder Ghose v. Sreemutty Kaminee Dossee 89, 168
Nomani Babuasin v. Modun Mohun 170, 581, 711
Norender Narain Singh v. Dwarka Lai Mundun, 570, 573, 721
Nowla Ooma v. Bala Dhurmaji 616
Nubo Gopal Roy v. Sreemutty Amrit Moyee Dosee 253, 697
Nund Coomar Lall v. Moulvie Razee-ood-din Hoosein 656
Nundkomar Rai v. Rajindemaraen 1031, 1034
Nundram v. Kashee Pande 927
Nundun Lall v. Lloyd 668
Nunkoo Singh v. Purm Dhun Singh 924, 1077, 1078
Nurbheram Bhaeedass v. Kriparam Anundram 333
Nurhur Shamrao v. Yeshodabaee 1043
Nursing v. Khooshal 820
Nursing Narain or Narsain v. Bhutton Lall 410, 456, 806, 919, 933
Nuzvid Case 2
0. Gooroova Butten v. C. Narainsawmy 294, 667
Obhoy V. Pearey Mohun 699, 711
Okhorah Soot v. Bheden Barianee 440
Omrit Koomari Dabee v. Luchee Narain Chuckerbutty 463
Ooday v. Jadub 679
Oodoychurn Mitter, In re 1081
Oojulmoney Dossee et al v. Sagormoney Dossee 93, 298
Oolagappa or Oolgapa Chetty v. Arbuthnot 162, 166, 192
Oomabai v. Sakatmal 987
Ooman Dutt v. Kunhia Singh 806, 914, 945
Oomedchand v. Gungadhar 631, 771
Oomedrai v. Hiralal 673
Oonnamala Awchy v. Mungalum 809
P. Bachiarju v. V. Venkatappadu 296, 422
P. Venkatesaiya v. M. Venkata Charlu 831, 941
Padajirav v. Ramrav 893
Padapa v. Swimirao 181
Padda Ramappa v. Bangari Sherama 324
Page V. Selfly 589
Paigi V. Sheo Narayan 225
Pajerav v. Jahagirdar 253
Palanivelappa Kaundan v. Maunaru Naikin et al 566
Panchappa v, Sangambasawa 892
Panch Cowree Mundul v. Bhugobutty Dossia 1073
Pandaya v. Puli Telaver et al 77, 830
Pandit Ram Narain v. Moulvi Mohammed 168
Pandit Suraj Narain v Ikbal Narain 632
Pandurang v. Naro or Naru 167, 191, 196, 587, 693
Pandurang Ballal v. Dhondo Ballal 1083
LIST OF CASES CITED. • Ivii
PAGE
Pandurang Anandrav v. Bhasker Sadashiv 588, 616, 652, 653, 711
Panduning Kamti v. Venkatesh Pai 652
Parasara Bhattar v. Eangaraya Bhattar Ill, 877
Parbati v. Naunihal Singh 611, 615, 631
Parbati v. Jagdis 152
Parbati Churn Deb v. Ainud Deen 646
Parbhudas Eayaji v. Motiram Kalyandas 174
Parbhu Lai v. Mylne 1084
Parmi v. Mahadevi 164
Parmappa v. Shiddappa 141
Paro Bebi v. Guddadhar Banerji 244
Parshotam Keshavdass v. Kalyan Kayji 377
Partapgiri Adoption Suit 66, 92, 154
Partha v. Thiru 201
Parvati v. Bhiku 83, 654
Parsotam v. Datgir 199
Payapa v. Appamma 1041
Parvati Kour Balapa v. Kisansing bin Jaising 64, 329, 616, 675, 694
Parvati Kunwar v. Chandra Pal 2
Parwati v. Kisansing 245
Parwatibai v. Limbaji 75, 252
Patel V. Chunilal 857, 858, 867, 871, 897
Paulien Valoo v. Paulien Debia 669
Pauliem Valoo v. Pauliem Sooryah .:. 669
Pawadeva v. Venketesh 150
Payappa v. Appanna 876, 878, 881, 887, 889, 1059, 1060
Peary Mohun v. Narendra Nath * 157
Pedda Eamappa Nayanivaru v. Bangari Seshamma Nayanivaru 65, 74
Pemraj Bhavaniram v. Narayan Shivram 635, 643
Penn v. Lord Baltimore 721
Periasami v. Periasami and the Representatives of Salugai Tevar 153, 320,
429, 661, 680, 683, 1076
Perkash Chunder Roy v. Dhunmonee Dassea 967
Pertabnarain v. Opindurnarain 636
Perumal Nayker v. Potteeammal 927
Pettachi v. Sangili Veera Pandia Chinnathambiar 171, 581
Phukar Singh v. Ranjit Singh 313, 317
Phulchand v. Luchmi Chand 575
Phul Chand v. Man Singh 575, 609
Phulcund Lall v. Rughoobun Subaye 94
Phulman Rai v. Dani Kurai 298
Piarey Lall v. Saliga 174
Pillari Setti Samudrala Nayudu v. Rama Lakshmana 970
Pilu V. Babaji 1035
Pirthee Singh v. Ranee Rajkooer 229, 252, 254
Pitam Singh v. Ujagar Singh 571, 575
Pittapur Maintenance Case 2, 66, 69, 154
Pokhnarain v. Musst. Seesphool 629
Poll V. Narotum Bapu et al 97, 417
Iviii LIST OF CASES CITED.
PAGE
Ponambilath Parapravan Kunchamod Hajee v. Ponambilath Parapravan
Kuttiath Hajee 669, 608
Ponnappa Pillai v. Pappuvayyangar 73, 76, 169, 204, 566, 682, 683, 584,
585, 692, 700
Ponusnami Nadan v. Dorasami Ayyan 4
PcKDnjeeabhaee v. Prankoonwur 286
Poorendra v. Hermangini 296
Poshun Earn et al v. Bhowanee Deen Sookool 570
Poyser v. Minors 586
Pragdas v. Harikishen 376, 640
Pranjiwan Dayaram v. Bai Eeva 151, 177, 407, 684
Pranjeevandas Toolseydas et al v. Dewcoorbai et al 93, 136, 297, 299, 302,
312, 321, 372, 710
Pranjvidas v. Ichharam 611
Prankishen Paul Chowdry v. Mothooramohan Paul Chowdry 72, 74, 133, 607
Prankissen's Case 633
Prankissen (or Prawnkissen) Mitter v. Sreemutty Eamsoondry Dossee 615, 633
Prankoonwar et al v. Deokoonwar 75
Prannath Paurey v. Sri Mangala Debia 681
Prannath Eai v. E. Govind Chandra Eai 1014
Pranputty Kooer v. Lalla Futteh Bahadur Singh 89
Pranvullubh v. Deokristen 1024, 1026, 1033
Prasannamayi Dasi v. Kadambini Dasi 1068
Prataprao Gujar v. Bayaji Nanaji 178, 377
Prayaga v. Pillai 157
Preag Singh v. Ajoodya Singh 1187
Premchand Pepara v. Hoolaschand Pepara 256
Premji Dayal v. Collector of Surat 1003
Prem Narain Singh v. Parasram Singh 542
Prit Koer v. Madho Pershad Singh 562, 664
Pritima Soon^aree Chowdrain v. Anund Coomar Chowdry 861, 1004
Promotho Dossee v. Eadhika Prasad Datt 201, 619
Prosunno Koomari Debia v. Golab Chund Baboo 166, 167, 176, 199, 523
Prosunno Koomar Ghose v. Turracknath 984
Prosunno Koomar Sein v. The Eev. B. F. X. Barboza 722
Prosunno Kumar v. Sarat Soshi 310
Protap Chunder Eoy v. S. Joymonee Dabee Chowdrain et al 89, 92
Puddo (Padma) Kumari Debi v. Juggutkishore Acharjia 885, 1152
Pudma Coomari Debi v. The Court of Wards 68, 836, 838, 862, 870, 876,
900, 1034, 1041, 1054, 1059, 1070, 1082
Punchunand Ojhab et al v. Lalshan Misser et al 316
Punga Seethai v. Nachiyar 103
Puran Dai v. Jai Narain 375
Puree Jan Katoom et al v. Bykunt Chunder 636
Purmanund Bhuttacharaj v. Oomakunt 863, 865
Puma V. Sarojini 627
Purshotam v. Mudakangavda 1045
Purshotam v. Eanchhod 297, 372
Purshotam Shenvi v. Vasudev Shenvi 1029, 1032
LIST OF CASES CITED. Hx
PAGE
Pursid V. Honorman 647
Puttu Lai V. Parbati Kunwar 841, 855
Putlabai v. Mahadu 892
Queen v. Marimuttu , 555
E. Bishen Perakh Narain Singh v. Bawa Misser 739
K. Haimun Chull Singh v. Koomer Gunsheam Singh 857
E. Huroosoondery v. Coomar Kristonath 859
E. Nallatambi Chetti v. E. Makunda Chetti 656
E. Vassereddi Eamanandha Baulu tJ. E. V. Jugganadha Bhalu 992
E. V. Hanmanta 86
E. V. Kenny 86
E. V. Picton 7
E. S. Lakshma Venkama Eow v. E. S. Venkata Gopala Narasimha Eow 632
Eachapa v. Amingaoda 768
Eachava v. Kalingapa 109
Radhabai v. Anantrao 180
Eadha v. Buchhaman 628
Eadha Mohun v. Hardai Bibi 818, 926, 930
Eadha v. Joy 285
Eadha v. Buddah 180, 181
Eadha v. Eanimoni Dasi 215
Eadhabai v. Chimnaji 378
Eadhabai v. Damodar Krishnarav 986, 1034
Eadhabai v. Ganesh Tatya Gholap 218, 977
Eadhabai v. Nanarao 73, 241, 329, 654, 666
Eadhabai v. Eaghoo 708
Eadha Bullub Gossain v. Kishen Govind Gossain 643
Eadhau Churn Doss v. Kripa Sindhu Doss 614, 617, 647
Eadha Govind v. Inglis 643
Eadha Jeebun Moostuffy v. Taramonee Dossee 184, 200
Eadhakissen v. Sreekissen 1076
Eadha Kishen Man v. Bachhaman 674
Eadha Mohun Mundul v. Jadoomonee Dossee 198
Eadha Pearee Dossee et al v. Doorga Monee Dossia et al 467
Eadha Persad Mallik v. Dasi 223
Eadha Prashad Wasti v. Esuf 567, 573
Eadhabai kom Shrikrishna v. Shamrao Vinayek 635
Eadhakishen v. Eajnarain 419
Eadhakishen v. Eajah Earn Mundal et al 418
Eadhanath Doss iJ. Gisborne 8
Eaghoo Govind Parajpe v. Balwant Amrit 216
Eaghoobanand Doss v. Sadhuchurn Doss 355
Eaghu bin Amba v. Govind Bahirao et al 567
Raghubans Kunwar v. Bhagwant 254
Eaghunada v. Broso Kishore 150
Eagunandan Das v. Sadhu 68
Eaghunath v. Munnan 126
Ix LIST OF CASES CITED.
PAGE
Haghunandan Da® v. Sadhu 69
Haghunathji v. Bank of Bombay 193
Eagrindrapa (or Eagvendrapa) v. Soobapa 646, 767
Eahi V. Govind 13, 84, 139, 164, 266, 357, 365, 368, 546
Eahimatbai v. Hirbai 153, 155, 193
Eaiji Manor v. Desai Kallianrai 706
Eai Bishen Chand v. Asmaida Koer 212, 610, 646
Eai Balkishen v. Sitaram 588
Eai Narain Doss v. Nownit Lall 579
Eai Sham Bullubh v. Prankishen Ghose 240, 692
Eaikishori Dasi v. Debendranath Saicar 179, 183, 185
Ea
Ea;
Ea
Ea
Ea
Ra
Ea
Ea
Ea
Ea
Ea
Bahadur v. Bishen Dayal 559
Bahadar v. Dagae 4
Bullubhsen v. Oomesh Chunder 89, 90
Chunder Deb v. Sheeshoo Earn Deb 95
Gobind Dey v. Eejessurree Dossee 460
a ChelikanVs case 93, 98, 139, 140, 218, 294, 313
a Bra] a Sundar Deb v. Srimati Swarna Manjari Dei 67, 239, 244, 248
a Haimun Chull Singh v. Koomer Gunsheam Singh 894, 966
a Lelanund Sing Bahadoor v. The Bengal Government 180
Lukhee Debia v. Gokool Chundra Chowdhry 90, 91, 93, 94, 96
a Mitter Eamalinga Setupate v. Perianayayam Pillai (Rameswara
Pagoda case) 523
Ea;
Ea
Ea
Ea
Ea
Ea
Ea;
Ea
Ea;
Ba,
Ea
Ea
Ea
E
Ea
Ea
Ea;
Ea
Ra
Ea
Ea
Ea
Ea
Ea
Ea
Ea
Mohun Gossain v. Gour Mohun Gossain 655
a Jogendra Bhupati v. Nityanund Mansingh 563, 709
a Parichat v. Zalim Singh 256, 360, 548, 709
a Pirthee Singh v. Eani Eajkoover 228, 694
a Eup Singh v. Eani Bansi 676, 680
a Venkata Surya Mahipati v. Court of Wards 874, 982, 1032
ah Bishnath Singh v. Eamchurn Mujmoodar 681
ah Chandranath Eoy v. Kooer Gobindnath Eoy 873
ah Chandranath Eoy v. Eamjai Mazumdar 475
ah of Coorg's case 3
ah Debendro Narain Eoy v. Coomar Chundernath Eoy 1036
ah Haimun Chull Singh v. Koomer Gunsheam Singh 857, 894, 966
ah Lelanund Singh Bahadoor v. Thakoor Munoorunjun Singh 201
ah Lelanund Singh Bahadoor v. The Government of Bengal 201
ah Nilmoney Singh v. Bakranath Singh 155, 175, 180, 184, 684, 769
ah Nilmoney Singh Deo Bahadoor v. Umanath Mookerjee 1082
ah Nugender Narain v. Eaghonath Narain Dey 4, 151
ah Nursing Deb v. Eoy Koylasnath 184, 665
ah Pathan Sing's case 694
ah (Saheb) Prahlad Sen v. Baboo Badhusing 643
ah Pedda Vencatapa v. Aroovala Eoodrapa Naidoo 642
ah Earn Narain Singh v. Pertram Singh 73, 581, 587
ah Eam Tewary et al v. Luchman Pershad et al 609
ah Saligram v. The Secretary of State 665, 678
ah Sooranamy Venkatapettyrao v. E. S. Eamchandra 621
ah Shumshere Mull v. Eanee Dilraj Konwar 858, 861, 926, 928
LIST OF CASES CITED. 1x1
PAGE
Eajah Surenni Lakshama Venkama Eow v. Eaja S. Venkata Gopala
Narasimha Eow 632
Eajah Surenni Venkata Gopala Narasimha Eow v. Eajah S. Lakshama
Venkama Eow 632, 640
Eajah Udaya Aditya Deb v. Jadub Lai Aditya Deb 154, 679, 680
Eajah valad Shevappa v. Krishnabhat 378
Eajah Vellanki Venkata Krishnarow v. Venkata Eama Lakshmi Narsaya
870, 872, 878, 881
Eajah Venkata Kanna Kamma Eow v. Eajah Eajabgopal Appa Eow
Bahadoor 699
Eajah Venkata Narasimha Appa Eow v. Eajah Narrayan Appa Eow 155, 184
Eajah Vurmah Valia v. Eavi Vurmah Kunhi Kutty 716, 744
Eajah Vurmah Valia v. Eavi Vurmah Mutha 199, 622
Eajah Woodoyaditto Deb v. Mukoond Narain 256
Eajaram v. Luchman 568, 573
Eajbai v. Sadu 606
Eajcoomaree v. Gopal 717
Eaje Vyankatrao v. Jayavantrao Eanadev 349, 831, 908, 927, 935, 1028,
1031, 1035
Eajender Dutt v. Sham Chunder Mitter 178, 180, 183, 194, 202, 608
Eajender Narain v. Bija Govind Singh 710
Eajendro Narain Lahoree v. Saroda Soondaree Dabee 783, 813, 815, 823,
846, 859, 959, 1011
Eajendranath v. Puttosoondry Dossee 228, 254
Eajendronath Dutt v. Shekh Mahomed Lai 156, 186
Eajendronath Holdar v. Jogendro Nath 967, 968, 969, 1076
Eajerao v. Nanarao 226
Eajhubanand Doss v. Sadhuchurn Doss 430
Eajindra v. Eaj Coomari 213
Eajkishen Singh v. Eamjoy Surma 4, 152, 154, 680
Eajkishore v. Govind Chunder 73
Eajkumar Nobodip Chimdro Deb Burmun v. Eajah Bir Chundra Manikya
84, 677, 994
Eajkoomaree Dassee v. Golabee Dassee 555
Eajkristo Eoy v. Kishoree Mohun 1035, 1069
Eajlakhi Debia v. Gakul Chandra Chowdhry 350
Eajmohun Gossain v. Gourmohun Gossain 656
Eajoneekant Mitter v. Premchund Bose 636
Eakhmabai v. Bayajee 633
Eakhmabai v. Eadhabai 257, 812, 858, 871, 874, 877, 881, 897, 900, 901, 902
Eakhmaji v. Tatia Eanuji 647, 700
Earn Bijai v. Jagatpal 149
Eam V. Ajudhia 646
Eam V. Anund 608
Eam V. Mul 646
Eam V. Surbana 852
Eam Baran v. Kamala Prasad 60
Eama Gopal v. Pilo 721
Eamabai v. Ganesh Dhonddev Joshi 246, 261, 253, 288, 698
Ixii LIST OF CASES CITED.
PAGE
JRamabai v. Jogan Soorybhan et al 634, 646
Eamabai v. Baya :•.. 844, 875
Kamabai v. Trimbak Ganesh Desai 246, 247, 656
Hamaji Huree v. Thukoo Baee 64
Hamakkal v. Eamasami 83
Eamalakshmi Ammal v. Sivanantha Perumal Sethurayar 2, 65, 74, 151, 788
Eamalinga Pillai v. Sadasiva Pillai 800, 848, 924, 970, 1072
Eamanadan v. Eangammal 245
Eamananda v. Eaikishori 99
Eamappa Naicken v. Sithamal 83, 226, 341, 605, 628, 723
Eamanamall v. Suban Annavi 872, 912
Eamasami v. Eamasami 631
Eamasami v. Vengidusami 306
Eamasami Kamayya v. Sundralingasami 65, 68
Eamasashien v. Akyalandumal 896
Eamasawmi Aiyan v. Vencataramaiyan 187, 974, 979, 980, 1020, 1036, 1037
Eamasami Nadan v. Ulagantha 653
Eamasami Padeiyatchi v. Virasami Padeiyatchi 85
Eamasawmy Aiyan et al v. Venkata Achari et al 620
Eamasheshaiya Panday v. Bhagavat Panday 668
Eama Subbayanna's case. (See Appovier's case.)
Eambhat v. The Collector of Poona 645
Eambhat v. Eamchandra 1080
Eambhat v. Lakshman Chintaman Mayalay 216, 217, 349, 416, 648, 564,
566, 696, 597, 602, 842, 982, 1014, 1079
Eambuja v. Virupakshi 608
Eamchandra v. Bapu Khandu 863, 866, 875
Eamchandra v. Kothekar 4, 152
Eamchandra v. Sagunabai 262
Eamchandra v. Venkatrao 644, 684
Eamchandra v. Gopal 800, 916
Eamchandra v. Eangrav 972
Eamchandra et al v. Lalsha 685
Eamchandra v. Eadhabai 1070
Eamchandra D. Naik v. Dada M. Naik 239, 594, 603
Eamchandracharya v. Shridharacharya 1048
Eamchandra Dikshit v. Savitribai 75, 251, 693, 698, 721, 776
Eamchandra Dutt v. Chunder Coomar Mundal 625, 637
Eamchandra Govind v. Vamanji 643
Eamchandra and Lakshuman v. Eaoji Sakharam 696
Eamchandra Martanda Waikar v. Vinayak Venkatesh 127
Eamchandra Narayan v. Krishnaji Moreshwar 1070
Eamchandrarao Narayan Mantri v. Venkatrao Madhava Mantri 180
Eamchander Nursew v. Krishnaji 769
Eamachandra Poy v. Luxoomy Boyee 698
Eamchandra Mukerjee v. Eanjit Singh 1084
Eamchandra Sakharam Vagh v. Sakharam Gopal Vagh 175, 181, 603, 682, 723
Eamchandra Sadashew v. Bagaji Bachaji 567
Eamchandra Tantra Das v. Dharma Narayan Chuckerbutty 90, 299
LIST OF CASES CITED. Ixiii
PAGE
Ramchandra Vasudev v. Nanaji Timaji 854, 902
Ramchandra Vishnu v. Sagunbai 698
Ramcoomar v. McQueen 159
Ram Coomar Pal v. Jogendranath Pal 682
Ram Dhone Bhuttacharjee v. Ishanee Dabee 350
Ramdas v. Baldevdasji 134
Ramdas v. Chandra Dassia 3
Ramdhun Sein et al v. Kishenknath Sein et al 419
Rameswar v. Lachmi 611
Rameswara Pagoda case 523
Ram Doss v. Mohesur Deb Missree 200
Ramgopal v. Narain Chandra 310
Ramgunga Deo v. Doorga Munee Jobraj 152
Ramguttee Acharjee v. Kristo Soonduree Debia 619, 981, 1082
Ramia v. Bhgi 552
Ramien v. Condummal 228
Ramjee Hurree v. Thukoo Baee 851
Ramji valad Narayan v. Ghamau kom Jivaji 351, 855, 857, 865, 867, 868,
870, 871, 874, 878, 885, 894, 895, 897
Ram Kannye Gossamee v. Meemomoyee Dossee 1038
Ramkeshore Narain Singh v. Anand Misser 593
Ramkishen Singh v. Cheet Bannoo 91
Ramkishen Surkheyl v. Musst. Sri. Mutee Dibea 1031
Ram Joshi v. Lakshmibai 629, 633
Ram Kawal v. Ram Kishore 307
Ram Koonwar v. Ummur et al 13, 697
Ramkishore Kedarnath v. Jainarayan 622
Ramkrishna Moreshwar v. Shivram Dinkar 987
Ramkrishna v. Shamrao 92, 852, 906
Ramakrishna v. Tripurabai 986, 1069
Ram Kullee Koer v. The Court of Wards 253, 697
Ram KumarVs case 5, 226
Ram Kumar v. Dai 254
Ram Lall Mookerjee v. The Secretary of State for India 181, 184, 187,
212, 217, 224, 620
Ram Lall Seth v. Kanai Lai 212
Ramlal Thakursidass v. Lackshmichund Muniram et al 75, 571, 576, 591, 593
Ramlingham v. Vythilingham 199
Ramnad case. {See Collector of Madura v. Mulu Ramalinga.)
Ram Narrayan Lall v. Bhowanee Pershad {Ram Narrain's case) 169, 575,
653, 686
Ram Narain Sing v. Ramoon Paurey 416
Ram Nundun Singh v. Janki Koer 2
Ramnath i;. Durga 99, 554
Ramphul Singh v. Deg Narain Singh 675, 577
Ram Oottum v. Oomesh 162
Ram Pershad v. Lakhpati 615
Ram Pershad Narain v. The Court of Wards 626
Ram Ratan v. Lachman Das 193
Mv LIST OF CASES CITED.
PAGE
Kampal Thakur v. Pan Mati Pandani 127
Kamprasad Tewarry v. Sheochurn Doss 71, 100, 133, 194, 430, 607, 665
Eamsebuk v. Eamlal Kundoo 568, 573
Earn Sarun v. Pran Peary 160
Earn Sevak Das v. Eaghabar 652.
Earn Sevak Eoy v. Sheo Gobind Sahoo 307
Earn Soondar Eoy v. Earn Sahaya Bhugut 546
Earn Soondri Debee v. Eamdhun Bhuttacharjee 692
Earn Soonder Singh v. Surbanee Dossee 844, 877, 1027, 1060'
Earn Surun Doss v. Musst. Prankoer 985, 1019
Earn Swaruth Pandey et al v. Baboo Basdeo Singh 419
Earn Tuhul Singh v. Biseswar Lall Sahoo 718
Eanchordas v. Parvatibai 224
Eane v. Eane 644
Eanee Bhuwanee Dibeh v. Eanee Sooruj Munee 1031
Eanee Bistoopria Putmadaye v. Nund Dhull 1080'
Eanee Kishen v. Eaj Oodwunt Singh 1014, 1028, 1035
Eanee Kishtomonee Debea v. Eaja Anundnath Eoy 992
Eanee Munraoheenee v. Jainarain 992
Eanee Nitradaye v. Bholanath Doss 944
Eanee Eajessuree Koonwar v. Maharanee Indurjeet Koonwar 1076'
Eanee Eoop Koour v. Eanee Bishen Koour 1017
Eanees Eathore v. Q. Khosal Sing 865
Eanga v. Ganapa 588'
Eangamma v. Atchamma 910'
Eanganayakammav v. Alwar Setti 826, 935, 962, 963
Eanganmani Dasi v. Kasinath Dutt 699
Eangammal v. Echammal 240, 24^
Eangapa v. Madyapa et al 566-
Eangayana v. Ganapa 564, 611
Eango Mairal v. Chinto Ganesh et al 649, 761
Eango Venayek v. Yamunabai 248, 249-
Eangrav Subrav v. Venkatrav Vithalrav 694, 700-
Eangubai v. Bhagirthibai 817, 855, 901, 953, 972, 983, 989
Eangubai v. Eamchandra 253-
Eani * Anund Kunwar v. The Court of Wards 90, 467, 972, 1054, 1075
Eani Pudmavati v. B. Doolar Sing et al 3, 119, 765
Eani Sartaj Kuari v. Eani Deoraj Kuari 679
Eani Srimuti Debea v. Eany Koond Luta et al 3
Eanimoni Dassi v. Eadha Prosad 283^
Eao Bahadur Singh v. Mussts. Jawahir Kuar and Phul Kuar 679
Eao Balwant Singh v. Eani Kishori 610, 617, 706, 982, 984, 1032
Eao Karun Singh v. Nawab Mahomed Fyz Alii Khan 287
Eao Kasan Singh v. Eajah Bakar Ali Khan 650^
Eao Muni Dibiah v. Pran Kishen Das 108O
Eaoji Vinayakrav v. Laksmibai 974, 977, 980
Eashid v. Sherbanoo 162
* Eani is sometimes spelled Eany, abbreviated "Ey." See under the latter
word.
LIST OF CASES CITED. IxV
PAGE
Easul Jehan v. Earn Suram 86
Katnam v. Govindarajulu 168, 671
Eatnamasari v. Akilandammal 1084
Eatnasabhu Chetti v. Ponappa Chetti 467
Eatonji v. Morlidhar 264
Eavi Varma v. Koman 566, 686
Eavji Appaji v. Mahadeo Bapuji 160
Eavji Janardhan v. Gangadhar Bhat 672, 691, 688
Eawut Urjun Singh v. Eawut Ghanasiam Singh 2, 162, 676, 680, 786
Eayan Krishnamachariyar v. Kuppannayengar 1026, 1028
Eayapparaz (D.) v. Mallapudi Eayudu 86
Eazabai or Eajabai v. Sadu Bhavani 267
Ee Cordwell's Estate 672
Ee Drake 686
Ee Gunput Narain Singh 964
Ee Kahandas Narandas 1, 3, 4, 6, 6, 8, 202
Ee Oodoychurn Mitter 1232
Ee Pitamber Girdhar 619
Ee Smart 166
Ee Tann 765
Ee Tyler 686
Eeasut Hossein v. Chorwar Singh 568, 673
Eeg. V. Bai Eupa 666
Eeg. V. Bertrand 796
Eeg. V. Dahee 400
Eeg. V. Duncan 796
Eeg. V. Karsan Goja 84, 666
Eeg. V. Marimattu 656
Eeg. V. Mayor of Tewkesbury 1076
Eeg. V. Natha Kalyan et al 86, 284
Eeg. V. Sambhu Eaghu 84, 400
Eewana Pershad v. Musst. Eadha Bebee 64, 562, 618, 632, 637, 639, 646,
649, 766, 767
Eidhakarna v. Lakhmichand et al 703
Eijkristo Eoy v. Kishoree Mohun Mojoomdar 1082
Eimington v. Hartley 626
Eindabai v. Anacharya 628
Eindamma v. Venkata Eamappa 83, 96, 297
Eivett Carnac v. Jivibai 300
Eobinson v. Hoffman 690
Eooder Chunder v. Sumbhoo Chunder 84, 89
Eoopchund v. Phoolchund 119, 632
Eoopchurn Mohapater v. Anundlal Khan 108, 467
Eoopmonjooree v. Eamlall Sircar 968, 1043, 1073
Eoshan Singh v. Balwant Singh 77, 164, 266
Eowlands v. Evans 628
Eudra Narain Singh v. Eup Kuar 297
Eujjomoney Dossee v. Shibchunder Mullick 694
Eukha Bai v. Gonda Bai 697
H.L. e
Ixvi LIST OF CASES CITED.
PAGE
Kukhal V. Chuni Lai 67
Ruklal V. Amrushet 1044
Rumea v. Bhagee 95
Rungama (or Rangama) v. Atchama 167, 196, 595, 631, 821, 822, 841, 842,
843, 844, 852, 875, 925, 957, 972, 1028, 1029 1032, 1072, 1077 1079
Runchordas v. Parvatibai 201
Runganaigum v. Namaeevoya Pillai 921
Runjeet Ram v. Mahomed Waris 95
Runjeet Singh v. Kooer Gujraj Singh 644
Runjeet Singh v. Obhye Narain Singh 912
Rupchand Hindumal v. Rakhmabai 871, 878, 879, 881, 886, 900
Russik Lall Bhunj et al v. Purush Munnee 150, 372
Russobai v. Zulekhabai 103, 229
Rustam v. Moti 306
Rutcheputhy Dutt et al v. Rajunder Narrain Rae et al 3, 52, 60, 111
Rutoo bin Bapooji v. Pandoorangacharya 1031
Ruttunchund v. Gholamun Khan 752
Ruvee Bhudr v. Roopshankar Shunkurjee et al 227, 639, 641, 717, 755,
838, 1017, 1018, 1033
Ry. *Brohmo Moyee v. R. Anand Lall Roy 876
Ry. Nitradaye v. Bholanath Doss 944
Ry. Sevagamy Nachiar v. Heraniah Gurbah 856, 859, 934, 944, 964, 1071
S. B. Shringarpure v. S. B. Pethe 635
S. Baghabati Dasi v. Kanailal Mitter et al 693, 722
S. M. Nistarini Dasi v. Makhanlal Dut et al 693, 752
S. M. Ramgaumani Dasi v. Kassinath Dutt 569
S. M. Sarroda Dossee v. Tin Cowry Nandy 862
S. Pabitra Dasi et al v. Damudar Jana 280
S. Puddo Monee Dossee v. Dwarka Nath Biswas et al 300
S. R. Y. Venkayamah c. S. R. Y. Boochia Venhondora 680
Sabaji Savant v. Vithsavant 721
Sabo Bewa v. Nahagun Maiti 968
Sabrahmaniya Mudali v. Parvati Ammal 1032
Sachitnanda v. Bulorum 160
Sadabart Prasad Sahu v. Foolbash Koer 162, 167, 203, 566, 688, 653, 688
Sadashiv Bhasker v. Dhakubai 685
Sadashiv Dinkar v. Dinkar Narayan 162, 463
Sadashiv Lakshman Lalit v. Jayantibai 681
Sadashiv Moreshwar v. Hari Moreshwar 943, 970, 1074
Sadu V. Baiza and Genu 358, 364, 563
Sakharam v. Devji 193, 569, 574, 590, 616
Sarharam v. Hari 615
Sakharam v. Jankibai 91
Sakharam v. Litaba 425, 599
Sakharam v. Sitaram 298, 439, 587
Sakharam Bhargao v. Ramchandram Bhaskar 627
Sakharam Mahdav Dange v. Hari Krishna Dange 566, 634, 765
* See above Rani.
LIST OF CASES CITED. Ixvii
PAGE
Sakharam Earachandra v. Madhavraw 162
Sakharam Sadashiv Adhikari v. Sitabai 106, 139, 302, 431, 436
Sakho Narayan v. Narayan Bhikhaji 641
Sakrabai v. Maganlal 298
Sakvarbai v. Bhavani Eaje Ghatge Zanjarrav Deshmukh 76, 228, 698
Salu V. Hari 164, 193, 362, 408
Salu et al v. Yemaji 648
Salur Zamindar v. Pedda Pakir Eaju 256
Samalbhai Nathubhai v. Someshvar Mangal Hurkissan 324, 560, 590, 593, 688
Samat v. Amra 117
Samatsang v. Shivasangji and Eamasangji 625, 634, 642
Saminadha v. Thangathanai 101
Sammantha Pandara v. Sellappa Chetti 199, 200, 523, 633
Samudrala v Venkata 133
Samy Josyen v. Eamien 1065
Sanganbusapa v. Sangapa 684
Sangappa v. Sakebanna 670
Sangapa v. Sanganbasapa 706
Sangili Virapandia Chinnathambiar v. Alwar Ayyangar 162
Sanjivi v. Kashi 11
Sanka Krishna v. Bank of Burma 193
Sanniyasi Eazu v. Sahir Zemindar 181
Sankarlinga v. Eaja Eajeswara Dorai 157
Santap v. Eangap 956
Sarasuti v. Mannu 361, 362
Saraven Tevan v. Muttayi Ammal 161, 168, 570, 571, 578
Sarusvatee Baee v. Kesow Bhut 698
Sarju Pershad v. Bir Bhaddar Sewah Panday 159
Sankarlinga v. Eaja Eajeswara Dorai 167
Sarkies v. Prosonomoyee Dossee 4, 6
Satra Kbumaji et al v. Tatia Hanmantrao 349, 1042
Satyabhamabai v. Lakshman Eamchandra 697
SatyahhamahaVs Case 246
Savitriava v. Anandrao 256, 682
SavitrihaVs Case 696
Savitribai v. Luxmibai {Luxmihais Case) 230, 249, 692, 694, 696, 697, 723
Sayaji v. Eamji 643
Sayamalal Dutt v. Soudamini Dasi 861, 892, 969
Sayammaul v. Sashacbaka Naikar 996
Sayi kom Nam Powar v. Shrinivasrao Pandit 326
Secretary of State for India v. Khemchand Jeychand 708
Seetaram v. Juggobundoo Bose 1082
Seetaram alias Kerra Heerah v. Musst. Aheeree Heeranee 84, 187
Seetul Pershad v. Musst. Doolhin Badam Konwur 89
Seith Gobin Dass v. Eanchore 246
Sellam v. Chinammal - 83, 150
Senkol Tevan v. Aurlanada Ambala Karan 877
Sengamalathammal v. Valayuda Mudali 408
Seshan v. Veera 668, 691
Ixviii " LIST OF CASES CITED.
PAGE
Sevachetumbara Pillay v. Parasucty 1056
Sham V. Achhan 285, 294
Sham Chunder v. Narayani Dibeh 844, 876, 877, 1049, 1052
Sham Kuar v. Gaya Din 1039, 1053
Sham Narain v. The Court of Wards 634
Sham Narain Singh v. Eughx) bin Dial 594
Shama Soonduri et al v. Jumoona 89
Shama Soonduri v. Surut Chunder Dutt 89, 92
Shamlal v. Amerendro 160
Shamrathi v. Kishen 568, 591
Sham V. Santa 842
Shangara v. Krishnan 160
Shankar Sahai (widow of) v. Eaja Kashi Pershad 318
Shebo Sundari Dassi v. Kali Churn Eav 636
Sheetanath Mookerjee v. Promothonath Mookerjee 1081
Sheik Sultan Sani v. Ajinodin 175
Shen Sulrae Singh v. Balwunt Singh 445
Sheo Dyal Tewaree v. Judoonath Teware ^ 633
Sheo Narain v. Mata Prosad 169
Shea Nundun Singh v. Musst. Ghunsama Kooeree 623, 624
Sheo Pershad Singh v. Leelah Singh 689
Sheo Pershad Singh v. Musst. Soorjbunsee Kooer 687
Sheo Pertab v. Allahabad Bank 313, 319
Sheo Euttun Koonwar v. Gour Beharee Bhurkut 740
Sheo V. Saheb 173, 563, 569, 674
Sheo Sehai Singh et al v. Musst. Omed Koonwar 316, 467
Sheo Shankar v. Debi Sahai 93, 97, 101, 103, 139, 140, 286, 289, 294, 313,
319, 320, 750
Sheo Shankar v. Jaddo Kunwar 669, 571, 591, 652, 688
Sheo Shankar v. Earn Shewak 173
Sheo Singh Eai v. Musst. Dakho 162, 812, 860, 862, 857, 869, 919, 1026, 1034
Sheo Sohai Misser v. Musst. Billasee 1046
Sheo Soondary v. Pertha Singh 72, 73, 429
Sheoji Devkarn v. Kasturibai 324
Sheolochan v. Saheb 313
Sheo Manog Singh v. Eam Prakash Singh 1226
Sheshamma v. Subarayadu 264
Sheshapa v. Igapa bin Surapa 638,^639, 777
Sheshigiri Shanbhog v. Gungoli Abboo Saiba 685
Shiam Lai v. Ganeshi 164
Shib Dayee v. Doorga Pershad 655, 692
Shib Narain Bose v. Eam Nidhee Bose et al 641, 765
Shib Suhaye Singh v. Nursing Lall 612
Shiddeshvar v. Eamchandrarao 350
Shidhojirav v. Naikojirav 256, 257, 642, 683
Shidoji V. Naikoji 644
Shidramapa Balapa v Shesho Janardhan 693
Shivagavda v. Dharangavda 706
Shivagunga Case {see Katama Natchear v. The Eajah of Shivagunga).
LIST OF CASES CITED. Ixix
PAGE
Shivajirao v. Vasantrao 609, 709, 722
Shivaram v. Sakharam 164, 587
Shivram v. Narayan 565
Shiva Sundari DasVs Case 694
Shivji Hasam v. Dattu Mavji Khoja 153, 623, 624
Shivmurtappa v. Virappa 614, 646, 647
Shoodyan v. Mohun Panday 112
Shookhmoy Chunder Dass v. Monohari Dassi 183, 185, 188, 221, 224
Shooshi Shikhuressur Koy v. Tarokessur Roy 182
Shoshinath Ghose v. Krishna Soondaree Dasi 1002
Shri Dharmidhar v. Chinto 890
Shri Gunesh v. Keshavrara 199
Shrinivas Ayyangar v. Kuppan Ayyangar 347
Shrinivas Ayyangar n. Eengasami Ayyangar 463
Shrinivas Timajee v. Chintarnan Shivaji 916, 920
Shripati v. Balvant 635
Shriput V. Radhabai ; 556
Shurna Moyee Dossee v. Gopal Lall Dass 252
Sia Dasi v. Gur Sahai 90, 710
Sibbosoonderey Dabia v. Bussoomutty Dabia 605, 627, 713
Sibta {see Sitabai) 311, 419
Sidalingappa v. Sidava (or Shidalingappa v. Shidava) 237, 401, 402, 556
Siddappa v. Ningangavda 883, 895, 1041, 1059
Siddesury v. Jonardan , 243, 253, 255
Sidlingappa u. Hirsa 159
Siddheshvar v. Eamchandrarao 1034
Sidesury Dossee v. Doorga Churn Sett 821, 877, 991, 1005, 1069, 1072
Sidney v. Sidney 251
Simbhu Nath v. Golab Singh 171, 578, 581
Simmani Ammal v. Muttammal 97, 98, 99, 139, 314
Singamma v. Vinjamuri Venkatacharlu 818, 826
Sirdar Sainey v. Piran Singh 627
Sitabai (or Sibta) v. Badri Prasad 311, 419
Sital V. Madho 206, 207
Sitarambhat v. Sitaram Ganesh 378, 716, 744
Sitaram v. Haribai 203
Sitaram Chandresheker v. Sitaram Abaji 566, 652
Sitaram Govind v. The Collector of Tanna 706
Sitaram Vasudev v. Khanderao 644
Siva Bhagiam v. Palani Padiachi 575
Sivanananja Perumal v. Muttu Eamalinga 279
Sivasankara Mudali v. Parvati Anni 583
Skinner v. Orde 84
Skinner v. Skinner 5
Slonnbhoy v. Manjamma 241
Sobharam v. Sumbhooram 769
Sobhagchand v. Khupchand Bhaichand 189, 643
Somangouda v. Bharmangouda 642, 717
Somasekhara Raja v. Subhadramaji 872, 891, 919, 954, 955, 963
IXX LIST OF CASES CITED.
PAGE
Somlah Dasee v. Bhcx)bun 750
Sonatun Bysack v. Sreemutty Juggutsoondree Dossee 182, 300, 619, 641
Sonet V. Mirza 679
Sonda Miney Dossee v. Jogest Chunder Dutt 693
Soobumomonee Debia v. Ptumber Dobey 895
Sookhlal V. Musst. Eaheema 377
Soondur Koomaree v. G. Pershad Tewarree 1039
Soorendronath Roy v. Musst. Heeramonee Burmoniah 2, 59, 152, 679, 680, 683
Soorja Koer v. Natha Baksh 245
Soorjamonee Debee v. Sudanund Mobaputteer 665
Soorjimony Dossee v. Deenobundo Mullick 179, 180, 593, 611, 619
Soorjoo Persbad et al v. E. Krishan Pertab 306
Soorodbunnee Debea v. Doorga Pershad Roy 857
Sorola V. Bbuban 287, 289
Soudaminey Dossee v. Jogesh Chunder Dutt 183, 219, 621, 629
Sowdamini Dassi v. Broughton 300
Sree Brijbhookunjee Maharaj v. Sree Gokoolootsaojee Maharaj 784, 831,
851, 854, 898, 902, 910, 943, 1074
Sree Cheytania Anunga Deo v. Pursuram Deo 723
Sreekaunth (B) Deybee v. Sahib Perlhad Sein Ill
Sreemutty Debia v. Bimola 160
Sreemutty Deeno Moyee Dossee n. Doorga Pershad Mitter 814, 1029, 1043, 1079
Sreemutty Jadomoney Dabee v. Saradaprosono Mookerjee ... 90, 298, 963, 1069
Sreemutty Joymony Dossee v. Sreemutty Sibosoondry Dossee 928, 939, 942, 1001
Sreemutty Kristoromoney Dossee v. Maharajah Norendro Krishna Bahadur 179
Sreemutty Muttee Berjessory Dossee v, Ramconny Dutt 287
Sreemutty Nittokissore Dossee v. Mokhun Lall Dutt et al 693, 752
Sreemutty Nittokissore Dossee v. Jogendronath Mullick 254, 697, 698
Sreemutty Puddo Monee Dossee v. Dwarkanath Biswas 300
Sreemutty Rabutty Dossee v. Sibchunder Mullick 184, 185, 714
Sreemutty Rajcoomari Dosee v. Nobcoomar Mullick 838, 1018
Sreemutty Soorjeemoney Dossee v. Denobunde Mullick 184, 223, 299, 700, 1022
Sreemutty Sreemutty v. Lukhee Narain Dutt 570
Sree Narain Mitter v. Sreemutty Kishen Soondory Dossee 826, 835, 890,
998, 1003, 1005, 1011, 1016, 1068
Sreenarain Rai v. Bhya Jha 441, 907, 1028, 1063
Sreenath Dutt et al v. Nand Kissore Bose 711
Sreenevassien v. Sashyummal 942
Sreeram Buttacharjee et al v. Puddomokhee Debea* 697
Sreeram Ghose v. Sreenath Dutt Chowdrey 641
Sreeramabai v. Kristamma 987
Sri Gajapathi Radhik v. Sri Gajapathi Nilamani 95, 256
Sri Raja Rao Venkata Mahapati Surya Rao Bahadur v. Sri Raja Gangadhar
Rama Rao Bahadur 962
Sri Braja Kishore v. Sri Kundana Devi 984
Sri Gajapathi Nilamani v. Radhamani 297
Sri Virada Pratapa Raghunada v. Sri Brozo Kishoro Patta Deo 85, 227,
228, 248, 814, 843, 846, 857, 858, 871, 878, 879, 881, 884, 889, 890, 895,
897, 1072
LIST OF CASES CITED. Lxxi
PAGE
Srimati Bhagabati Dasi v. Kanailal Mitter et al 75, 245
Srimati Uma Devi (or Deyi) v. Gokulanand Das Mahapatra 97, 215, 417
800, 819, 873, 913
Srimohan v. Brijbehari 298, 306
Srimohan v. McGregor „ 608
Srimuti Dilecah v. Eony Koona 60
Srinivasa Sargerav v. Balwant Venkatesh 1085
Srinath Gangopadhya v. Mahes Chundra Roy 1085
Srinath Gangopadhya et al v. Sarbamangala Debi 309
Srinath Serma v. Radhakaunt 1031, 1063
Srinivasa Ayyangar v. Kuppan Ayyangar 1026, 1028
Srinivasa Nayudu v. Yellaya Nayudu 585
Srinivasammal v. Vijayammal 693
Sripat Singh Dugar v. Maharajah Sir Prodyot Kumar Tagore 171, 582, 686, 687
Srinivasa v. Eengasami 126, 463
Sri Pal V. Suraj 287, 289, 709, 760
Sri Pusapati Eadhamani Garu v. Pusapati Alkarajeswari 96
Sripatti Chinna Sanyasi Razu v. Sripatti S. Razu 653
Sri Eaja Eao Venkata Mahapati v. Mahipati Suriah Eao 299
Sriramalu v. Eamayya 801, 916, 921
Srimuttu Muttu Vizia Eagunada Eani v. Dorasinga Tevar 98
Srumanchunder v. Gopauchunder 158
Stree Eajah Y. Venkayamah v. S, E. Y. Boochia Vankondora 680
Strinivasa v. Hanmant 1085
Suba V. Sarfraz 117
Subaya v. Nagappa 161
Subba V. Doraisami 218
Suba Ayes v. Ganesa 611
Subbaraya v. Subbammal 827, 851, 997, 998
Subba V. Eaja 609
Subbarayar v. Subbarumal 223
Subbarayana v. Subbakka 255
Subba Naiken v. Tangaparoomal 765
Subbaluvammal v. Ammakutti Ammal 806, 807, 832
Subbaiya (K.) v. K. Eajesvara 644
Subbaraya Gurukul v. Chellappa Mudali 186
Suhedar Hussein Shakhan Sayedsha Khan's- Case 201
Subhabhat v. Vaeudevbhat 1077
Subramaniyayyan v. Subramaniyayyan 583
Subsoondaree Dossee v. Kisto Kisore Neoghy '. 252
Sudanund Mohapattur v. Bonomallee Dos et al. 666, 1029, 1033, 1077
Sudanund Mohapattur v. Soorjamonee Debee 665, 666, 1029
Sumboochunder Chovi^dry v. Naraini Dibeh 68, 836, 1049
Summun Jha et al v. Bhooput Jha et al 755
Sumrun Singh v. Khedun Singh 710
Sumrun Thakoor v. Chunder Mun Misser 628, 709
Sugan Chand v. Gopalgir 520, 537
Sukaram v. Eamdas 771
Sukaram Govind v. Shreenewas Eow 768, 769
Ixxii LIST OF CASES CITED.
PAGE
Sukhbasi Lai v. Guman Singh 1057
Sumboochunder Chowdhry v. Naraini Dibeh 68
Suleman v. Mehdi 158
Sundar Lai v. Fakirchand 159
Sunder v. Parbati 83, 95
Sundrabai v. Shivanarayana 173
Suraya Bhukta v. Lakshminarasamma 105
Surampalli v. Surampalli 242
Surja V. Eabi 215
Surja Kumari v. Gandharp 101
Surendra Keshav Roy v. Doorgasundri Dassee 843, 875, 877
Surendra v. Sailaji 870
Sungappa v. Sahebanna 570
Sungram Singh v. Debee Dutt 518
Suraj Bunsi Koer v. Sheo Prasad Singh ... 62, 73, 161, 162, 163, 167, 169,
171, 191, 192, 565, 566, 567, 568, 569. 570, 578, 579, 580, 581, 583,
588, 589, 593, 595, 603, 604, 609, 610, 611, 612, 615, 616, 622, 653,
664, 685, 687, 702, 765, 797
Surbo Mungola Dabee v. Mohendronath 619
Surendra Nath Roy v. Hiramani Barmani 788
Surjokant Nundi v. Mohesh Chunder Dutt Mojoomdar 69, 1054
Su(Soo)troogun Sutputty v. Sabitra Dye 854, 857, 965, 988, 1004, 1005,
1007, 1071, 1074
Svamirayacharya v. The Heirs of Moodgalacharya et al 644, 648
Svamiyar Pillai v. Chokkalingam Pillai 624
Sy (see Sreemutty, Srimati).
Syed Ali Saheb v. Sri R. S. Peddabali Gara Simhulu 149
Syed Imam Momtazooddeen Mahomed v. Rajkumar Ghose 721
Syed Mahomed Isaack Mushyack v. Azeezoonnissa Begum 708
Syed Tuffuzzool Hoosein Khan v. Rughoonath Pershad 579, 651
Symes v. Hughes 160
T. M. M. Narraina Numboodripad v. P. M. Trivicrama Numboodripad 1026
Tagore v. Tagore (see Juttendro Mohun Tagore v.).
Tahaldai v. Gaya Pershad 103
Taikom Devji v. Aba 623
Talemand Singh v. Rukmina 73, 75, 245, 329, 675
Tandavaraya (or Tandaraya) Mudali v. Valli Ammal 83, 569 590, 592
Tamek Chunder Poddar v. Jodeshur Chunder Koondoo 671
Tanjore Raja's Case 940
Tara v. Krishna 99
Tara Chand v. Reebram 183, 212, 221
Tarakeswar v. Shoshi 179
Tarachurn Chatterji v. Suresh Chunder 870, 878, 886, 900
Tarachand Pirchand v. Lakshman Bhavani 178, 189, 565, 635
Taruck or Tamek Chunder Poddar et al v. Jodeshur Chunder Kondoo ... 666
Tara Mohun Bhuttacharjee v. Kripa Moyee Debia 67, 69, 1047, 1049
Tara Munee v. Deb Narayan Rai 975
Tarini Charan v. Saroda Sundari Dassi 869, 954, 1073, 1085
LIST OF CASES CITED. Ixxiii
PAGE
Tarinee Churn Gangooly et al v. Watson & Co 89
Tayammaul v. Sashachalla Naikar 847, 963, 966, 971, 1077
Taylor v. Horde 191
Teelok Chundur Eaee v. Gyan Chundur Eaee 966
Teencowree Chatterjee v. Dinanath Banerjee 69, 443, 1028, 1034, 1039,
1040, 1053
Tekaet Doorga Pershad Singh v. Tekaetnee Doorga Kooere 680
Tekait Kali Pershad c. Anund Roy 177
Teki Earn v. D. C. of Bara Banki 294
Tennent v. Tennent 160
Tewar v. Dorasingha 289
Thakoo (Thukoo) Baee Bhide v. Eama Baee Bhide 78, 750, 784, 855, 871,
887, 892, 893, 898
Thakoorani Sahiba v. Mohun Lall 121, 439, 456, 458, 463, 628, 789
Thakur Dayhee v. Bulak Earn 280, 282
Thakur Sri Sri Eadha Krishna Chanderji v. Earn Bahadur 171, 582
Thakur Tirbhurwan v. Eaja Eameshar 1084
Thakur Durriao Singh v. Thakur Davi Singh 615, 645
Thakur Jibnath Singh v. The Court of Wards 60, 111, 116, 456, 460, 934
Thakur Oomrao Singh v. Tha Mahtab Koonwar 857, 934, 985, 992, 1002, 1078
Thakro v. Ganga Pershad 158
Thakurmani v. Doi Eani 83
Thakurani Eamanund Koer v. Thakurani Eaghunath Koer 95, 200
Thandayuthapani v. Eaghunath 615
Thangam v. Suppa 563
Thomson v. Eastwood 1077
Tilackchand v. Jitamal 572
Tilak V. Tai Maharaj 826, 995
Tilna Earn v. Deputy Commissioner of Bara Banbri 91
Timama kom Timapa v. Amchimani Parmaya 632
Timangavda v. Eangangavda 154, 184, 200, 682, 683
Timappa Bhat v. Parameshriamma 229, 230, 698
Timmi Eeddy v. Achamma 633, 646, 649
Tincowree v. Dinanath 69, 300, 990
Tipperah case (see Nilkisto Deb Burmono v. Beerchunder).
Tirbegnee Doobey et al v. Jiitta Shunker et al 740
Tirbeni Sahai v. Mohammed Umar 150
Tirumalachariar v. Andal Ammal 127
Tirumamagal v. Eamasvami 150
Todd V. P. P. Kunhamad Hajee 273
Toolooviya Shetty v. Coraga Shellaty 933
Totava et al v. Irapa 431
Totawa v. Basawa 97
Treekunjee v. Laros 84
Tribhovandas v. Yorke Smith 665
Trikam Purshotam v. Natha Daji 441
Trimbak v. Gopal Shet 570, 591
Trimbak Baji Joshi v. Narayan Vinayak Joshi 902, 1028
Trimbak iSawa v. Narayan Bawa 198
Ixxiv LIST OF CASES CITED.
PAGE
Trimbak Dixit v. Narayan Dixit 614, 646
Tukaram v. Gunajee ^6
Tukaram v. Kamchandra 616
Tukram v. Narayan 1^' 284, 288
Tuljaram Morarji v. Mathuradass Dayaram 74, 103, 129, 139, 313, 320,
441, 467
Tulsee v. Gopalrai 265
Tundum v. Poluk Narain 158
Udai V. Ashu 306
Udaram Sitaram v. Kanu Panduji et al 73, 162, 163, 167, 241, 477, 550,
560, 566, 672, 588, 616, 651, 652, 660, 889, 1024, 1033
Udaram v. Sonkabai 248, 695
Ujamsi v. Bai Suraj 637
Ujjal Mani Dasi v. Jaygopal 692
Uka Bhagvan v. Bai Heta 85
Ukoor Doss v. Chunder Sekhur Doss 176, 186, 681
Uma Sankar Moitro v. Kali Komul Mozumdar 1010, 1027, 1054
Umabai v. Bhava Padmanji 160
Uman Parshad v. Gandarp 158
Umapa Kantapa v. Ningosa Hirasa 713
Umaid Bahadur v. Udoi Chand 463, 467
Umasunduri Dabee v. Sourobinee Dabee 88, 903, 1034
Umbika Churn Shet v. Bhuggobutty Churn Shet 642
Umbika Prosad Teewary v. Kam Sahay Lall 575, 578
Umed V. Goman 161, 204, 587
Umed Kika v. Nagindas Narotamdas 964
Umiashankar v. Bai Eatan 649
Umrithnath Chowdry v. Gowreenath Chowdry et al 665
Umroot V. Kulyandass 459, 460, 466, 467
Upooroottram Byragee v. Narayandas Euseekdas 94, 686
Unnoda Soondary Dossee v. Oodhubnuth Eoy 686
Unnopoorna v. Gunga 162
Upendra Mohan Tagore et al v. Thanda Dasi et al 453
Upooroop Tewary v. Lalla Bandhjee Sahay 564, 575, 578, 688
Utpat case {see Bhau Nanaji Utpat v.).
v. Singamma v. Eamanuja Charlu {Nohkissen Raja's case) 826, 958, 998,
999, 1002
Vada (Veda) Vatti v. Mangamma 827, 956, 997, 998
Vadali v. Kotipalli 83
Vaikuntam v. Kallapiram 255
Vahbai v. Govind 826, 962, 995, 999, 1000
Vainder Bhat v. Venkatesh 647
Vallabhram v. Bai Hariganga 150
Valu V. Gunga 555
Vaman Eamchandra v. Dhondiba Krishnaj 650
Varjivan v. Ghelji Gokaldas 90
LIST OF CASES CITED. IXXV
PAGE
Vasdeo v. Eamchandra 881, 970, 972
Vasudeo v. "Vamnaji 560
Vasudeo Anant v. Eamkrishna 864
Vasudeo Bhatlu v. Narasamma 635
Vasudev Bhat v. Venkatesh Sunbhav 194, 215, 564, 566, 688, 616, 663
Vasudev Hari v. Tatia Narayan 643
Vasudev Sadashiv Modack v. The Collector of Katnagiri 174
Vedammal v. Vedanayaga 99, 149
Vedavalli v. Narayana 74, 562, 639
Veerapermal Pillay v. Narrain Pillay 856, 857, 863, 872, 926, 931, 937,
939, 940, 960, 966, 968, 988, 1031
Veerasokkaraju v. Papiah 162
Veliyammal v. Katha 204, 692
Velaga Mangamma v. Bandlamudi 1084
Vellanki v. Venkata 1037
Vencatachellum v. Venkatasamy 1010
Vencata Soobamal v. Vencumal 1036
Venkamma v. Subrahmania 858
Venkangavda v. Jakangavda 968
Venkapa v. Holyawa 427
Venkappa v. Jivaji Krishna 876, 881, 1041, 1061, 1070
Venka B«ddi v. G. Soobha Eeddi 861
Venkata Krishna Eao v. Venkatrama Lakshmi 120, 841, 876, 896, 904
Venkata Narasimha Appa Eow v. Parathasarathy Appa Eow 874
Venkata Narasimha Appa Eow v. Eangayya Appa Eow 1024
Venkatachalam Chetti v. Andiappan Ambalam 644
Venkatachella v. Thathammal 280
Venkata Gopala Narasimha Eow v. E. S. Lakshma Venkama Eow ... 632, 640
Venkatammal v. Andyappa 627, 709, 1038
Venkata Subba Eao v. Purushotam 148
Venkata Eama Eao v. Venkata Surya Eao 287, 294, 300, 307, 319, 710
Venkatarama v. Bhujanga 139, 289, 316
Venkataramayyan v. Venkatasubramania 652
Venkatasubramaniam v. Thayarammal 102
Venkatesh et al v. Ganapaya 614, 703
Venkatesh Narayan Pai v. Krishnaji Arjun 76
Venkateswara lyan v. Shekhari Varma 186
Venkatramana v. Bramana 661
Venkatrama' s case {see Venkata Eama Eao v. Venkata Surya Eao).
Venkatramma v. Venkayya 669
Venkatratnama v. Eamanujasami 327
Venkayya v. Lakshmayya 646
Venkopadhyaya v. Kavari Hengasu 254, 698
Venkuppa v. Holyawa 452
Verabhai v. Bai Heraba 850
Veraprashyia v. Santanraja 844
Verbadru v. Baee Eanee 838
Vidyashankar et al v. Gangatram 642
Vijaya Devi v. Annapurna Devi 305
IxXVi LIST OF CASES CITED.
PAGE
Yijiyarangam v. Lakshuman 14, 81, 138, 141, 302, 313, 437, 484, 488, 496,
905, 955, 989
Yinayek v. Luxumeebaee 289
Vinayak v. Govind 1035
Vinayek Anundrao v. Lakshmibai 95, 105, 110, 139, 283, 297, 299, 312,
319, 320, 436, 437
Vinayek Lakshman et al v. Chimnabai 407, 638, 641
Vinayek Narayan Jog v. Govindrav Chintaman Jog 91, 977, 978, 980
Yinayek Eaghunath v. G. I. P. Eailway Company 1037
Vinayek Wassudev v. Parmanandass 222
Yirakumara Servai v. Gopalu Servai 944
Viramuthi Udayana v. Singaravelu 368, 546
"Virasangappa v. Eudrappa 139, 319, 320
Virasvami v. Ayyasvami 203 688, 717
Viraswami Chetti v. Appaswami Chetti 556
Yirayya v. Thata 203
Virbuddru v. Baee Eanee 822, 867, 902
Virjivandas v. Mahomed Ali Khan 643
Visalatchi Ammal r. Annasamy Sastry 164, 245, 252, 663, 693
Vishnubhat v. Babaji 377
Visalakshi v. Sivaramien 974, 977, 980
Yishnu Ganesh v. Narayan Pandurang 88
Vishnu Shambhoy v. Mangamma 83, 263
Vishnu Trimbak v. Tatia 666
Vishnu Vishvanath v. Eamchandra Narhar 660, 671
Vishram Baboorow v. Narainrow Kassee 902
Visvanath v. Krishnaji Ganesh ei al 608
Vishvanath v. Mahadaji 174, 666
Vithalraw Vasudev v. Chanaya 190, 416
Vithaldass Manickda&s v. Jeshubai 302, 462
Vithal Krishna Joshi v. Anant Eamchandra 176, 200, 378, 389
Vithal Pandurang et al v. Purshottam Eamchandra 661
Vithoba v. Bapu 846, 856, 870
Vithalrao v. Eamrao 117
Vithappa v. Savitri 98, 283
Vithoba Bava v. Hariba Bava 711
Vithoba t>. Bapu 846, 851, 870, 881, 894, 1060
Vithu V. Govinda 84, 85
Vitla Butten (or Buttal) v. Yamenamma 216, 665, 622, 982, 1032
Vrandavandas v. Yamunabai 76, 172, 216, 237, 393, 434, 656, 606
Vrij V. Bai 306
Vrijbbukandas v. Bai Parvati 302
Vrijabhukhandas Kirparam u. Kirgaram Govandas 566, 687
Vyakunta Bapuji v. The Government of Bombay 174, 178
Vyankatrav v. Anpurnabai 407
Vyas Chimanlal v. Eamchandra 818
Vyankapacharya v. Yamansami 169
Vyasacharya v. Venkubai 977, 980
LIST OF CASES CITED. Ixxvii
PAGE
Walbai v. Heerbai 800, 916, 919
Waman J. Joshi v. The Collector of Thana 664
Waman Ranchundra v. Dhondiba Krishnaji 202
Watson V. Glass 712
Webbe v. Lester 202
Western v. MacDermott 189
Wiles V. Gresham 972
Williams v. Hensman 637
Williams v. Pott 636
Wilson V. Tooker 584
Wittul Eughoonath v. Huribhayee 452
Woma Pershad v. Grish Chunder 149
Wooma Daee v. Gokhoolanund Doss 806, 809
Wulubhram v. Bijlee 287
Y. Venkata Reddi v. G. Soobha Eeddi 851, 966
Yachereddy Chinna Basapa et al v. Y. Gowdapa 842, 1064
Yad Ram v. Umrao Singh 160
Yamnava v. Lakshman 800, 916, 919
Yamunabai v. Manubai 119, 240
Yamunabai v. Narayan 402
Yaramati v. Chundra 159
Yarlagadda Malikarjuna v. Durga 2, 154, 679, 680
Yeapp Cheah Nev v. Ong Cheng Nev 198
Yekeyamian v. Agniswarian 722, 1014, 1078
Yellawa v. Bhimangavda 75
Yeshvantrao v. Mulharao 769
Yesubai kom Daji v. Joti 1024
Young V. Peachey 160
Yusaf Ali Khan v. Chubbee Singh 589
Zalem Roy v. Dal Shahee 372
Zamindar of Karvetnager v. The Trustee of Tirumalai 66
Zemindar of Sivagiri v. Alwar Ayyangar 165
Zemindar of Merangi v. Raja Satrucharla 679
ACTS. EEGULATIONS, AND STATUTES
KEFEEKED TO.
I. — Acts of the Government of India.
Act V.
of 1843
XII.
of 1843
XXI.
of 1850
XIII.
of 1855
XXVIII.
of 1858
XV.
of 1856
XL.
of 1858
VIII.
of 1859
XIV.
of 1859
XXVII.
of 1860
XLV.
of 1860
IX.
of 1861
XX.
of 1863
XI.
of 1864
XX.
of 1864
X.
of 1865
XXI.
of 1866
XXVII.
of 1866
XXVIII.
of 1866
I.
of 1868
VII.
of 1870
XXI.
of 1870
IX.
of 1871
XXIII.
of 1871
IV.
of 1872
I.
of 1872
IX.
of 1872
XIX.
of 1873
IX.
of 1875
XX.
of 1875
VIII.
of 1876
I.
of 1877
in.
of 1877
Abolition of Slavery) 1057
Hereditary Of&cers) 769
Caste Disabilities Eemoval) 403, 541, 544, 610
Fatal Accident) 1073
Usury) 718
Hindu Widow's Ee-Marriage) 83, 102, 343, 368, 369,
390, 392, 402, 406, 421, 440, 482, 557, 892
Guardianship) 623, 625, 701, 1073, 1080
Old Civil Procedure) 3, 1083
Old Limitation) 642, 650, 708
Collection of Debts on Succession) 669, 1040, 1078, 1081
Indian Penal Code) 566
385, 607
Native Eeligious Endowments) 176
Abolition of Official Expositors of Native Laws) 3
Minors, Bombay) 385, 443, 507, 623, 624, 625, 701,
846, 853, 912, 1038
Indian Succession) 220, 221, 619, 620, 1013, 1082
Native Converts' Marriage Dissolution) 559
Indian Trustees) 202, 416
Trustees' and Mortgagees' Powers) 416
General Clauses) 704
Court Fees) 1073
Hindu Wills) 219, 619, 620, 1013
Eegistration) 632, 644, 708, 1073
Pensions) 180, 708
Punjab Laws) 5
Evidence) 246, 626, 636, 642, 671, 686, 1083
Contract) 8, 161, 190, 204, 246, 668, 571, 576, 635, 685,
718, 987
Court of Wards) 381
Majority) 76, 623, 846, 859
Central Provinces) 1
Oudh) 1
(Specific Eelief) 372, 416, 643, 964
(Eegistration) 190, 631, 708
IXXX ACTS, REGULATIONS, AND STATUTES REFERRED TO.
PAGE
X. of 1877 (Old Civil Procedure) 723
XV. of 1877 (Limitation) ... 361, 673, 636, 642, 648, 644, 650, 708, 1073
VI. of 1878 (Treasure Trove) 758
XII. of 1878 (Punjab Laws) 5
XV. of 1880 (Bombay Revenue Jurisdiction) 623, 625
V. of 1881 (Probate and Administration) 220, 620, 708
XXVI. of 1881 (Negotiable Instruments) 187
IL of 1882 (Trust) 177, 416
IV. of 1882 (Transfer of Property) 180, 189, 190, 191, 416, 635, 707
VL of 1882 (Companies) 708
XII. of 1887 (Bengal, Assam, and U. P.) 1
VIII. of 1898 (Burma) 1
XIV. of 1882 (Old Civil Procedure) 378, 560, 568, 623
V. of 1908 (Civil Procedure) 161, 623, 1070
IX. of 1908 (Limitation) 253, 645, 703, 706, 763, 972, 1073, 1083,
1084, 1085-
II. — Acts of the Government of Bombay.
Act V. of 1862 (Bhagdari and Narwadari Tenure) 177, 684
II. of 1863 (Inamlands) 176, 177, 854
VII. of 1863 (Exemptions from Land Revenue) 175, 664
IV. of 1864 (Exemptions from Land Revenue) 3
VII. of 1865 (Religious Endowments) 176
VII. of 1866 (Hindu Heirs' Relief) 76, 687
III. of 1874 (Hereditary Offices) 176, 180, 327, 684, 718, 769, 1070
in. of 1876 643
V. of 1879 (Land Revenue) 723
in.— Regulations of the Government of Bombay.
Regulation IL of 1827 (Caste questions) 2, 560*
IV. of 1827 (Civil Courts) 1, 7, 684
V. of 1827 (Acknowledgment of Debts; Interests; Mort-
gages) 361, 642, 644, 763
VIII. of 1827 (Administration of Estates) 1083
XVI. of 1827 (Collectors of Land Revenue) 326, 718, 768, 769
XVII. of 1827 (Land Revenue) 175, 176-
IV. — Acts and Regulations of other Local Governments.
Regulations of the Government of Bengal.
Regulation X. of 1793 846
XXVL of 1793 846
ACTS, REGULATIONS, AND STATUTES REFERRED TO. Ixxxi
Regulations and Acts of the Government of Madras.
PAGE
Regulation III. of 1802 (Administration of Estates) 618
XXV. of 1802 (Permanent Settlement) 176
V. of 1829 (Hindu Wills) 618
Act VIII. of 1865 192
III. of 1873 (Civil Courts) 1
V. — Statutes of the British Parliament.
Statute 31 Hen. VIII. c. 1 663
32 Hen. VIII. c. 1 (Statute of Wills) 216
32 Hen. VIII. c. 32 563
29 Car. II. c. 3 (Statute of Frauds) 218
9 Geo. II. c. 36 211
13 Geo. in. c 63 1
21 Geo. ni. c. 70 1, 5, 6, 220
37 Geo. III. c. 142 1
39 and 40 Geo. III. c. 79 1
4 Geo. IV. c 71 1, 6
3 and 4 Will. IV. c. 75 284
3 and 4 Will. IV. c. 106 621
7 Will. IV. (Statute of Wills) 218
1 Vict. c. 26 (Statute of Wills) 218
22 and 23 Vict. c. 39 708
23 and 24 Vict. c. 5 708
24 and 25 Vict. c. 104 1
45 and 46 Vict. e. 75 247
H.L.
AUTHOEITIES QUOTED OR REFERRED TO,
Arbuthnot's Munro.
Aristotle (Bolland & Lang's edition).
Atkinson's Account of the Himalyan
Districts.
Aufrecht's Catalogue of Oxford MSS.
Aulus Gellius V.
Bacon's Abridgment, Customs.
Baring-Gould's Germany.
Benedictine Annals.
Bengal Social Science Association (Pro-
ceedings of).
Bhau Daji's MS. and Index.
Bigelow's History of Procedure.
Bikaneer Catalogue (Kajendrolal
Hitter's).
Blackstone's Commentaries.
Bombay Govt. Selections — XXXI.
Borradaile's Collection of Caste Eules.
Bowyer's Civil Law.
Br acton.
Breton Constitution de la Chose Jug^e.
Briggs (General) Keports, Kev. and
Judl. Sel.
Buchanan's Mysore.
Buddhist Law (Notes on, by Sir J.
Jardine).
Buhler's (Dr.) Catalogue of MSS. for
Guzerat.
Burge's Commentaries on Foreign and
Colonial Law.
Burnell (Dr.).
(in Indian Antiquary).
Burnell's Tanjore Catalogue.
Butler's Notes to Coke upon Littleton.
See Coke upon Littleton.
Bynkershoek Opera.
Caesar de Bello Gallico.
Canciani's Leges Barbarorum.
Chambers' MSS. (Berlin Collection).
Chaplin's Keport on the Deccan (Kev.
and Judl. Sel.).
Charters of the High Courts in India.
Cicero Pro Domo Sua XIII.
Civil Code of New York.
Civil Procedure Code. See Acts VIII.
of 1859, XIV. of 1882, and V. of 1908.
Clark's Early Koman Law.
Code Napoleon.
Codex Lib. 1 Tit. V. Lex IV.
Codice Civile, Lib. 1 Tit. VII.
Coke upon Littleton.
Colebrooke, Mr. (in Str. Hindu Law).
Colebrooke on Obligations.
Colebrooke 's Letters and Essays.
Comyns's Digest.
Contract Act of 1872.— See Act IX. of
1872.
Coulange, Histoire des Institutions.
Coulange, La Cite Antique.
Cruise's Digest.
De Gubernatis Storia Comparata Degli
Usi Nuziali.
Digest (Civil Law).
Dollinger's First Age of the Church.
Domat's Civil Law.
Dubois, Manners and Customs of the
Hindus.
E.
Elliott (Sir W.).
Ellis, Mr. (In Str. H. L.).
Ellis, Madras Mirasi Papers.
Ixxxiv
AUTHORITIES QUOTED OR REFERRED TO.
Elphinstone's (M. E.) History of India.
Elphinstone's Eeport on the Deccan
(Rev. & Jud. Sel.).
Elton's Origines,
Elton's Tenures of Kent.
Evans's Pothier See Pothier.
F.
Fisher on Mortgage.
Forchhammer (Dr.).
Fortescue's Report (Rev. and Judl.
Sel.).
Fortnightly Review.
Freeman's History of the Norman
Conquest.
G.
Gaius.
Gans, Erbrecht.
Gazetteer of North-West Provinces.
Geiger's History of Sweden.
Glanville.
Golapchandra Sarkar Sastri (Viramitro-
daya, translation by).
Goldstiicker on the Deficiencies in the
Administration of the Hindu Law.
Goudsmit Pandects.
Grant's Report on the Deccan (Rev. and
Judl. Sel.).
G rote's History of Greece.
Grote's Plato.
Grotius de Jure Belli et Pacis.
Guizot's Histoire de la Civilization en
France.
H.
Hall's (F. E.) Contributions towards
Indian Bibliography.
Hall's Index to Indian Philosophical
Systems.
Hallam's Middle Ages.
Hargrave's Notes to Coke upon Little-
ton {See Coke upon Littleton).
Hearn's (Dr.) Aryan Household.
Hessels and Kern's Lex Salica.
Hunter's Roman Law.
I.
Ihne's History of Rome.
Imperial Gazetteer of India.
Indian Antiquary.
Indian Company's Act. — See Act VI. of
1872.
Indian Contract Act. — See Act IX. oi
1882.
Indian Evidence Act. — See Act. I. of
1872.
Indian Loans Act. — See Stat. 22 and 23
Vict. Cap. 39.
Indian Trusts Act.— -See Act II. of 1882.
J.
Jainism, by E. Thomas.
Jardine — See Buddhist Law (Notes on).
Jolly (Professor J.)
Das Dharmasutra des Vishnu, &c.
Ueber die Rechtliche Stellung der
Frauen.
Jones' (Sir Wm.) Works.
Journal of the Bengal Br. Royal Asiatic
Society.
Journal of the Bombay Br. Royal Asiatic
Society.
Journal of the North China Br. of the
Royal Asiatic Society.
Jus Canonicum, by Reiffenstuell.
Juv. Sat. XVI.
K.
Kanara Land Case (The).
Kemble's Saxons in England.
Kern's Brihatsamhita.
Kerr's Blackstone.
Kielhorn's (Dr.) Catalogue of MSS.
from S. Maratha Country.
Kielhorn's (Dr.) Mahabhashya.
Kirkpatrick (Mr. C. S.) in Indian
Antiquary.
Laboulaye's Histoire du Droit de pro-
priete Fonciere.
Langdell's Cases on the Law of Con-
tracts.
AUTHORITIES QUOTED OR REFERRED TO.
Ixxxv
Lassen's Ind Alterthumer.
Laveleye's Primitive Property.
Lecky's History of European Morals.
Lecky's History of Kationalism.
Leges Henrici I.
Leitner's (Dr.) Account of Ghilgit Mar-
riage {See Ind. Antiquary).
Letourneau's Sociology.
Letters Patent of the High Court.
Lewis (Sir G. C.) on the Government of
Dependencies.
Lex Salica {See Hessels).
Lex Saxonica, XV.
Literary Society of Bombay, Transac-
tions of.
Lubbock's Origin of Civilization and
Primitive Condition of Man.
Lucretius De Nat. Rerum.
Lyall's (Sir A. C.) Asiatic Studies.
Mommsen's History of Rome.
Morgan's Ancient Society.
Muir's Sanskrit Texts.
N.
Nelson's View of the Hindu Law
Norton's Leading Cases.
0.
O'Curry's Lectures.
Odyssey of Homer (The).
Ortolan's Instituts de Justinian.
P.
M.
Macnaghten's (Mr. W.) Principles and
Precedents of Hindu Law.
Macnaghten's (Sir Francis) Considera-
tions on the Hindu Law.
Magna Charta.
Maine's (Sir H. S.) Ancient Law.
Maine's (Sir H. S.) Early History of
Institutions.
Mandlik (Rao Saheb V. N.) Vyavahara
Mayukha.
MS. (Chambers') Berlin Collection.
Marculfus (Formularies) Lib. II.
Marsden's History of Sumatra.
Max Miiller's History of Ancient San-
skrit Literature.
Max Miiller's Lectures on the Science
of Religion.
Max Miiller's Sacred Books of the East.
— See separate list of Hindu Authori-
ties.
Mayne on Hindu Law and Usage.
Maynz Cours de Droit Remain.
Mayr (Dr. A.), Das Indische Erbrecht.
McLennan's Studies in Ancient History.
Meyer, Histoire des Institutions Judi-
ciaries.
Milman's History of the Jews.
Milman's History of Latin Christianity.
Perry's Oriental Cases.
Petit, Leges Atticae.
Philosophy of the Upanishads.
Plato. — Laws. See Grote.
Polybius.
Poste's Gains.
Pothier's Pandects.
Pothier's Traite des Substitutions.
Pottinger's Report on the Deccan (Rev.
and Judl. Sel.).
Proceedings of the Bengal Social Science
Association.
Puchta Gewohnheitsrecht.
R.
Rajendralal Mitter [See Bikaneer Cata
logue).
Rattigan's Punjab Customary Law.
Reeves's History of English Law.
Regulations (Bombay). — See Separate
List.
Report (Fifth) on Indian Affairs.
Revenue and Judicial Selections.
Robertson's Report on the Deccan (Rev.
and Judl. Sel.).
Roer and Montriou's Yajnavalkya.
Rohtak Settlement Report.
Rowney's Wild Tribes of India.
Ixxxvi
AUTHORITIES QUOTED OR REFERRED TO.
S.
Sacred Books of the East — See Max
Miiller.
Samskarakaustubha. — See separate list
of Hindu Authorities.
Savigny's History of the Koman Law
Savigny's System.
Savigny on Possession.
Schmid Die Gesetze der Angl. Sax.
Schoeman's Antiquities of Greece.
Schroeder's (L. Von) Edition of the
Maitrayani Samhita.
Sheppard's Touchstone.
Sleeman's Journey through Oude.
Smith's Dictionary of Antiquities.
Smith's Leading Cases.
Soury Etudes Historiques.
Specific Eelief Act.— See Act I. of 1877.
Spelman's De Non Temerandis Eccle-
siasticis.
Spence's Equitable Jurisdiction of the
Court of Chancery.
Spencer (H). — See Fortnightly Eeview
Statutes. — See Separate List.
Steele's Law of Caste.
Stenzler Yajnavalkya.
Stenzler, Indische Studien.
Stephen's Commentaries.
Stokes' Hindu Law Books.
Story's Conflict of Laws.
Strange 's Exports (Madras).
Strange 's Hindu Law.
Stubbs' Constitutional History.
Stubbs' Docts illustrative of English
History.
T.
Terence's Hautontimorumenos.
Thomas (E.) Jainism.
Thomson's Bhagavadgita.
Tide's Ancient Eeligions.
Tod's Rajasthan.
Tomkins and Lemon's Gaius. — See
Gains.
Transactions of the Literary Society of
Bombay.
Tupper's Panjab Customary Law.
Tyler's Anthropology.
Tyler's Primitive Culture.
V.
Viner's Abridgment.
Voet, Commentarius ad Pandectas.
W.
Wachsmuth's Historical Antiquities of
Greece.
Wales, Ancient Laws of.
Ward's Survey Account.
Weber's History of Indian Literature.
Weber's Indische Studien.
West's Bombay Code.
Whitney's Essays.
Wilks's (Colonel) South of India.
Willems (Dr.) Droit Public Remain.
Williams (Monier), Indian Wisdom.
Williams' Executors.
Wilson's Glossary.
Wilson's Sanskrit Dictionary.
Wilson's (H. H.) Works.
Tacitus de Moribus Germanorum.
Tagore Lectures for 1880, 1883, 1884,
1888, 1895, 1897.
Taswell-Langmead's Constitutional
History.
Zachariae, Jus Graeco-Romanum.
Zimmer, Altindisches Leben
A LIST OF THE PRINCIPAL REFERENCES
TO HINDU AUTHORITIES.
Adipurana.
Apararka.
Apastamba.
Atri.
B.
Bahvricha Brahmana,
Balambhatta (Lakshmi Devi).
Baudhayana.
Brihaspati.
D.
J.
Jagannatha (in Colebrook's Digest).
K.
Kamalakara. — See Nirnayasindhu.
Karma Purana.
Katyayana.
Kulluka Bhatta.
Dattaka Chandrika.
Dattaka Darpana.
Dattaka Kaustubha (Samskara
Kaustubha).
Dattaka Mimamsa (of Nanda Pandita).
Day a Bhaga (of Jimuta Vahana).
Dayakrama Sangraha.
Daya Tatwa (of Eaghunandana).
Devala.
Devanda Bhatta — See Smriti Chandrika.
Dharesvara,
Dharmadvaitanimaya or Dvaita
Nimaya.
Dharmasindhu.
Gautama.
Logakshi Bhaskara.
M.
Madhaviya.
Manu.
Mitakshara.
Mitramisra. — See Viramitrodaya.
N.
Nagoji Bhatta.
Nanda Pandita (see Dattaka Mimamsa).
Narada.
Nilkantha. — See Vyavahara Mayukha.
Nimaya Sindhu (of Kamalakara).
H.
Haradatta.
Harita.
Parasara.
Prajapati.
Ixxxviii
PRINCIPAL REFERENCES TO HINDU AUTHORITIES.
E.
Kig Veda.
Samskara Ganapati.
Sankara Bhatta. — See Dvaitnirnaya.
Sarasvati Vilasa.
Satatapa.
Saunaka.
Smriti Chandrika.
Smriti Kaustubha.
Subodhini (by Visvesvarabhatta).
T.
Vachaspati Misra.
Varadraja Vyavahara Nirnaya.
Vasishtha.
Vatsa.
Vedarthayatna.
Vijnanesvara. — See Mitakshara.
Viramitrodaya of Mitramisra.
Vishnu.
Vishvamitra.
Vis ves vara. — See Subodhini.
Vivada Chintamani.
Vyasa.
Vyavahara Mayukha (of Nilkantha*
Vyavastha Darpana.
Taittiriya Brahmana.
U.
Usanas.
Y.
Yajnavalkya. — See Mitakshara.
ADDENDA.
While this edition was passing through the Press the following principles have
been laid down by the Judicial Committee of the Privy Council : —
Adoption —
(1) A widow has no power to adopt a second time on the death of a first adopted
son who had attained full legal capacity to continue the line either by the
birth of a natural-born son or by the adoption to him of a son by his own
widow.
Madana Mohana Deo v. PuriLshothamma^
L. E. 45 I. A. 156.
See pp. 876-878 ; 880 ; 887 ; 1037 ; 1061.
(2) In the Dravida country a Hindu widow may adopt a son with the assent
of the male sapinda. In an undivided family such authority must be
sought within the family.
Veera Basavaraju v. Balasurya Prasada Rao,
L. E. 45 I. A. 265.
See pp. 876-877 ; 881-882 ; 894.
(3) A Hindu widow cannot be compelled to adopt, and unless there is a time
limit within which she is to adopt, she may exercise her power so long
as it is not extinguished or exhausted.
In a grant by a Hindu " discendible in the direct male line " an
adopted son, in the absence of custom, is included.
Pratapsing Shivsing v. Agarsinghji,
Dec. 13, 1918.
See pp. 68 and 872.
(4) A Kamma or a Eeddi can lawfully take a son-in-law in illatom adoption
when he has a son living.
Nalluri Kristnamma v. Kainepalli,
Feb. 25, 1919.
See p. 849.
Joint Family —
(1) A member of a Hindu family may convert his self-acquired property into
ancestral family estate by throwing it into the common stock.
Radhakant Lai v. Nazma Begum,
Dec. 14, 1917.
See pp. 662; 667.
XO ADDENDA.
(2) A Hindu widow does not lose her right to maintenance by refusing to
live in the house assigned to her on reasonable grounds.
Raja Braja Sundar Deb v. Swarma Majari Dei,
Dec. 29, 1917.
See pp. 237 ; 249-62.
(3) A Hindu widow can surrender her whole interest in the whole estate in
favour of the nearest reversioners.
The consent of the nearest reversioners to an alienation is a presumptive
proof that the transaction was a right and proper one.
Rangasami v. Nachiappa,
Dec. 16, 1918.
Bhagwat Koer v. Dhanukdhari Prasad Singh,
June 30, 1919,
See pp. 89, 90, 285.
(4) A decree fairly and properly obtained against a Hindu widow representing,
the estate is binding on the reversioners.
Amrit Narayan Singh v. Gaya Singh,
Nov. 22, 1917,
Risal Singh v. Balwant Singh,
L. K. 45 I. A. 168,
See p. 89.
(5) The sale of " the right, title and interest " of the defendants which
included minor sons held to effect the sale of the whole estate.
Ganapathy Mudaliar v. Krishnamachariar ,
Dec. 14, 1917.
Seih Ghunsham Das v. Umapershad,
June 23, 1919,
See pp. 169-172; 575; 581-82.
(6) Mere uninterrupted sole possession of a part of a joint property by a
member of a joint family cannot be regarded as adverse to other interested
members.
Hardit Singh v. Gurmarkh Singh,
Jan. 29, 1918,
See pp. 589; 640-44.
(7) A reversioner must claim possession of the estate within twelve years of an
alienation of a portion by a widow entitled only to maintenance but placed
in possession of the estate in lieu of maintenance by order of the Court.
Satgur Prasad v. Raj Kishore Lai,
June 26, 1919.
(8) Gains made by a member of a joint Hindu family by his peculiar skill,
mental abilities and individual effort, without the aid of the joint funds,,
having only received an ordinary education suitable to his position as a
ADDENDA. XOl
member of the family to which he belonged, are his eelf -acquired
property.
Metharam v. Reioachand,
L. E. 45 I. A. 41.
See pp. 666-670.
(9) A mortgage of the joint property of a Mitakshara family by its Karta or
manager, unless necessity or an antecedent debt is proved, is void; the
transaction itself gives to the mortgagee no right against the Karta 's
interest in the joint family property.
Manna Lai v. Karu Singh,
July 29, 1919.
Anant Ram v. Collector of Etah,
Oct. 29, 1917.
Narain v. Sarnam,
L. K. 44 I. A. 163.
Nawab Nazir Begum v. Rao Raghunath Singh,
L. E. 46 I. A. 145.
See pp. 569-74 ; 590-93.
Impartible Zemindari —
(1) An impartible zemindari is alienable and discontinuance of a service
attached to it does not render it partible.
Rao Kishore Singh v. Gahenabai,
July 29, 1919.
(2) There is no coparcenery in an impartible zemindari and no one (except
the widow, the parents, and the infant child) who does not prove his
right to maintenance by custom is entitled to it.
Gangadhar Rama Rao v. Raja of Pittapur,
L. E. 45 I. A. 148.
Maharajah of Jeypore v. Vikrama Deo Singh,
May 12, 1919.
See pp. 675-682 ; 65 ; 68-69.
Religious Endowment —
Acquisitions out of the Math or Asthal properties are subject to the same
trust as the dedicated properties themselves, and that any alienation by
the mahanth must show necessity for the benefit of the math, and the
creditor is bound to make enquiries as to the necessity.
Basdeo Roy v. Mahant Jugalkishwar Das,
March ^1, 1918.
Ram Parkash Das v. Anand Das,
L. E. 43 I. A. 73.
Sethuramaswamiar v. Meruswamiar,
L. E. 46 I. A. 1.
See pp. 198-200.
COKRIGENDA.
Page 103 note (c) for I. L. K. M. L. T. read 14 M. L. T.
179 note (r) lor Saicar read Sircar.
566 note (w) for 263, 356 read 254, 339.
615 note (/) for 621 read 678.
628 note (d) for 464, 468 read 434, 439; for 238 read 232.
699 note (t) for 725 read 667.
702 note (e) for 613 read 672.
712 note (w) for 819 read 745.
713 note (w) for 259 read 250.
713 note (x) for 298, 303, 338 read 284, 288, 292, 331.
842 note (x) for 922 read 822.
845 note (t) for Vithal read Vithoba.
862 note (x) for L. A. read L. E.
969 note (c) for (c) . . . 1009 read if) . . . 965.
1082 note (o) for L. E. read I. L. E.
INTRODUCTION.
I.— OPEEATION OF THE HINDU LAW.
The Hindu Law, so far as it governed the private relations
of the inhabitants of any part of India, was not affected 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 during its existence
and down to 1833 a.d. (a).
The apphcation of the Hindu Law to litigation by the Courts
in British India is authorized and regulated by statutes of the
Imperial Parliament and by Eegulations and Acts of the local
Legislatures (6).
It is subject even without a statutory provision to modification
by custom (c), which indeed may be regarded as the basis, for all
(a) See Campbell v. Hall, 1 Cowp. 204; Moodley v. The East India
Company, 1 Br. E. 460; Dobie v. The Temporalities Board, L. B. 7 A. C,
at p. 136. Lewis on the Government of Dependencies, 203, ss., and Note (m).
(b) See the Statutes 13 Geo. 3. c. 63 ; 21 Geo. 3. c. 70 ; 37 Geo. 3. c. 142 ;
39 & 40 Geo. 3. c. 79, s. 5; 4 Geo. 4. c. 71, s. 9; St. 24 & 25 Vict. c. 104; and
the Letters Patent of the High Court under these Statutes. These are discussed
in the case of Kahandas Narandas (1880), I. L. E. 5 Bom. 164, and other
cases there referred to. For the Mofussil, see Bombay Eeg. IV, s. 26 of
1827. Under this a collection of the caste rules of Gujarat 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 Adalat, dated
24th December, 1827. For Bengal, Assam, and the United Provinces see
21 Geo. 3. c. 70, s. 17, and Act XII. of 1887, s. 37; for Madras see 37 Geo. 3.
c. 142, s. 13; 39 & 40 Geo. 3. c. 79, s. 5; and Act III. of 1873, s. 16; for the
Central Provinces see Act XX. of 1875, s. 5; for Oudh see Act XVIII. of
1876, s. 3; for the Punjab see Act IV. of 1872, ss. 6-7, and Act XII. of 1878,
cf. Eegulation XI. of 1825, s. 2; for Burma, except the Shan States, see
Act XIII. of 1898, s. 13, and Burma Courts Act of 1889, s. 1; for Ajmere
and Marwara and British Beluchistan, Eegulation III. of 1877, s. 4, and
Eegulation III. of 1890, s. 89, respectively.
(c) See Manu I. 108, 110. II. 12, 18. VII. 203. VIII. 41, 42, 46.
Vyavahara May. Chap. I. s. 13. Chap. IV. ss. 5, 10, 11. Vijnanesvara on
H.L. 1
2 HINDU LAW.
secular purposes, of the 'Hindu Law itself (d). Thus, when a custom,
whether general or peculiar to a particular family or estate {dd),
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 (e). The duty devolving, according to the Hindu sages,
upon a conqueror of maintaining the customary private law of
the conquered territory (/), has been recognized as fully, or even
more fully, by the British Courts than by the Legislature. Thus
the Privy Council says in Bamalakshmi Ammal v. Sivanantha
Perumal Sethurayar (g) : — " Their Lordships are fully sensible of
the importance and justice of giving effect 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 (h); and to a right of a reigning raja
Yajnavalkya Book II. Sloka 4; Col. Dig., Book 1., Chap. II., T. 49. Comm.
ad fin. and note ; T. 50. Book II., Chap. IV., T. 18 Com. Yajnavalkya, Book II.
117 note by Roer and Montriou; Collector of Madura v. Mootoo Ramlinga,
(1868) 12 M. I. A. 397.
(d) See Bhau Nanaji v. Sundrabai, 11 Bom. H. C. R. 249 ; Mathura Naikin
V. Esu Naikin, I. L. R. 4 Bom. 645; Lulloobhoy Bappoohhoy v. Cassibai,
L. R. 7 I. A., at p. 237; Yajnavalkya, I. 40, 156 and 343; Mandlik's Mayukha.
(dd) The Pittapur Maintenance Case, P. C. May 2, 1918.
(e) Neelkisto Deb Burmono v. Beerchunder Thakoor and others (1868),
12 M. I. A. 623; S. C. 12 Suth. (P.C), 21; S. C. 3 B. L. R. (P. C), 13,
re Tipperah Raj.
Gunesh v. Moheshur, (1862), 6 M. I. A. 164, re Raj of Tirhoot; Anund
T. Dheraj (1861), 6 M. I. A. 82; Raiout Urjun v. Rawut Ghunsiam (1861),
5 M. I. A. 169; Chowdhry Chintamun v. Nowlukhu, L. R. 2 I. A. 263;
Yarlagadda MalUkarjuna v. Durga, L. R. 17 I. A. 147; Garurudhwaja v.
Saparandhwaja, L. R. 27 I. A. 238; Chandika Baksh v. Muna Kuer,
li. R. 29 I. A. 70; Parvati Kunwar v. Chandra Pal, L. R. 36 I. A. 126;
Durbhunga Raj Case, L. R. 36 I. A. 176; Ekradeswar v. Bahuasin, L. R.
41 I. A. 275.
On custom relating to large estates see Hunsapore Case, 12 M. I. A. 1 ;
Mutta Vaduganatha v. Dorasinga, L. R. 8 I. A. 99; Ram Nundun Singh v.
Janki Koer, L. R. 29 I. A. 178; Mohammed Afzul Khan v. Ghulam Kasim,
L. R. 30 I. A. 190; Nuzvid Case, L. R. 7 I. A. 38; Mirangi Zamindar v.
Satrucharla Ramabhadra, L. R. 18 I. A. 45; Ramnad Case, I. L. R. 24 Mad.
626. They lay down that confiscation and regrant of a raj in the absence
of intention to let in the operation of ordinary law do not alter the nature
of such a raj in respect ofimpartibility and primogeniture.
(/) Manu VII. 203. Yajnav. I. 342. The same edited by Janardan
Mahadev, p. 358, Col. Dig., Book II., Chap. IH., T. 60.
ig) 14 M. I. A. 670, 686.
(h) Soorendranath Roy v. Massamut Heeramonee Burmoneah, 12 M. I. A.
81, 91.
OPERATION OF THE HINDU LAW. 3
to select his heir (i) founded on custom though for some time
disused or not distinctly asserted. In the Collector of Madura
V. Moottoo Ramalinga Sathupathy (k) their Lordships dwell on
the importance of the opinions of Pandits, such as those collected
in the present work. By Bombay Eegulation II. of 1827, a
Hindu law officer was attached to the Saddar Adalat, and one
to each Zilla Court, and questions of Hindu Law were generally
disposed of in accordance with 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 Hindu, as of
the Mohammedan 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 XI. of 1864, the sections
of the Eegulation relating to the Hindu law officers were repealed.
Their services were discontinued, and the Hindu law has since
then had to be collected from the recognized treatises and from
the records which these officers (usually called Sastris) had left
behind them.
Residence within a Presidency town of which the chief inhabi-
tants are English, does not, of itself, subject a Hindu to the
English law (l), though in Bombay particular legislation may to
some extent have had this effect (m).
Emigration from one to another province of India does not
necessarily alter the law of inheritance to which the emigrant
family originally belonged (n) ; though, where the migration is
(t) Neelkisto Deb Burmono v. Beerchunder Thakoor and others, 12 M. I. A.
623.
(k) 12 M. I. A. 397, 438, 439. See also Lulloobhoy Bappoobhoy v. Cassibai,
L. E. 7 I. A., at p. 230. That the Sastris were under strong religious
obligation, see Vasishtha III. 6. Compare Savigny's History of the Eoman
Law, English Translation, p. 284.
(1) The Administrator General of Bengal v. Ranee Surnomoyee Dosee,
9 M. I. A. 387.
(m) Naoroji Beramji v. Rogers, 4 Bom. H. C. B., p. 28, et seq; Kahandas
Narandas, In re, I. L. E. 6 Bom. 154, 165, 170.
(n) Rutcherputhy Dutt et al. v. Rajunder Narrain Rae et al. 2 M. I. A.
132. Compare on this point Rani Pudmavati v. B. Doolar Singh et al.
4 M. I. A. 259, with Rany Srimuti Debeah v. Rany Koond Luta et al.
Ibid. 292; Chundro Sheekhur Roy v. Nobin Soonder Roy et al. 2 C. W. E.
197; Nobin Chunder v. Junardhun Misser, C. W. E. Sp. No. p. 67; Lukkea
Debea v. Gunga Gobind Dobey et al. Ibid, for 1864, p. 56; the Rajah of
Coorg's Case, and others quoted in 2 Nort. L. C. 474 and 12 M. I. A. 90;
1 Beng. Law. E. 26 P. C. 8 C. W. E. 261; Abdurahim Haji Ismail Mithu
V. Halimabai, P. C. Dec. 3, 1915; Ramdas v. Chandra Dassia, I. L. E.
20 Cal. 409.
4 HINDU LAW.
from one country to another, the presumption is in favour of
adopting the law of new domicil, and the retention of the original
family law must be affirmatively proved (o). In Ramchandra
Martand-Waikar v. Kothekar (p) it has recently been held that
"on settling down in a province of India a Hindu adopted the
lex loci and was governed by the rules of the Mitakshara generally
in force in that province." This marks the close connexion of
the law of Inheritance amongst the Hindus with their family
law. But at the same time a customary law 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 (q) and subject to a different law. It
may be abandoned in favour of the general law either by agree-
ment or desuetude (r). In Rajah Nugendur Narain v. Raghonath
Narayan Dey (s) it was held that a family custom as to inter-
marriages might be proved by declarations made by members of
the family. But still the course of devolution prescribed by law
cannot be altered by a mere private agreement (t).
The Madras High Court (v) has decided 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 (iv). The Allahabad
High Court has held that Hindu law might be applied to those
who, though not Hindus, have always followed the Hindu law (x),
and in the case of Cutchee Memons,whoare Mohammedans, Hindu
Law of Inheritance has been held applicable to them, though they
(o) Abdurahim Haji Ismail Mithu v. Halimabai, P. C. Dec. 3, 1915;
S. C. L. R. 43 I. A. 35.
(p) L. E. 41 I. A. 290.
(q) Abraham v. Abraham, 9 M. I. A. 195; Abdurahim Haji Ismail Mithu
V. Halimabai, P. C. Dec. 3, 1915.
(r) Abraham, v. Abraham, supra; Court of Wards v. Pirtha Singh, 21 W. R.
89, 92, C. R. ; Baroda Debea v. Rajah Prankishen Singh, 2 C. W. R. 81.
12 M. I. A. supra. Rajkishan v. Ramjoy, I. L. R. 1 Cal. 186. See further
below, and Index " Custom."
(s) C. W. R. for 1864, p. 20.
(t) Balkrishna Trimbak Tendulkar v. Savitribai, I. L. R. 3 Bom. 54, 57.
See Kahandas Narandas, In re, I. L. R. 5 Bom. 154, 164.
(v) Ponnusami Nadan v. Dorasami Ayyan, I. L. R. 2 Mad. 209.
(w) Sarkies v. Prosonomoyee Dossae, I. L. R. 6 Cal. 794.
(x) Raj Bahadar v. Dagae, I. L. R. 4 All. 343; Jugmohundas v. Sir
Mangaldas Nathubhoy, I. L. R. 10 Bom. 539.
OPERATION OF THE HINDU LAW. D
are outside the operation of the Hindu Wills Act (XXI.) of
1870 (y). This retention of a portion of the Hindu law would
only be by way of an exception to the general law adopted by
the Memons (z) and by the Borahs who are Sunnis (a) and by
the Mohammedan Grasias (h) or by the Kolh tribe (c). Conversion
does not necessarily put an end to an obligation under the former
law (d); but it confers a right of choice, either to retain the
old law or to adopt the new one (e).
In Myna Boyee v. Ootaram (/) it was held that the illegitimate
sons of a European by two native women could not form a joint
Hindu family in the proper sense, but could constitute ** them-
selves parceners in the enjoyment of their property after the
manner of a Hindu 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 appHcable to the succession of any
individual depends on his personal status, which again mainly
depends on his religion (h).
By the Punjab Laws Act (IV.) of 1872, and Act XII. of 1878,
the Hindus and the Mohammedans in the Punjab are governed
by their own laws as modified by custom. The presumption,
therefore, is in favour of the Hindu and the Mohammedan law,
but for those who belong to the agriculturist tribes whose names
have been announced in the local gazette the presumption is in
favour of custom.
In litigation between a Hindu on the one side and a
Mohammedan, a Christian or a Parsee on the other, it sometimes
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 appHed. The Statute 21 Geo. 3. c. 70, § 17, enabling
the Supreme Court to hear and determine all suits against
iy) Haji Ismail, In re, I. L. E. 6 Bom. 452; Ahmadhoy v, Kasamhhai,
I. L. R. 13 Bom. 534.
(z) Jawala v. Dharum, 10 M. I. A. 537; Hakim Khan v. Gool Khan,
I. L. R. 8 Cal. 826.
(a) Bai Baija v. Bai Santook, I. L. *R. 20 Bom. 57.
(b) Fatesangji v. Hasisangji, I. L. R. 20 Bom. 181.
(c) Fanindra Deb v. Rajiswar, L. R. 12 I. A. 72.
{d) Ram KumarVs Case, I. L. R. 18 Cal. 264 ; Skinner v. Skinner, I. L. R.
25 Cal. 537, 541.
(e) Abraham v. Abraham, 9 M. I. A. 237; Jalbhai v. Manoel, I. L. R.
19 Bom. 680.
(/) 8 M. I. A. 400, 420.
(g) 13 M. I. A. 277, 307.
(h) See Kahandas Narandas, In re, I. L. R. 6 Bom. 154.
b HINDU LAW.
inhabitants of Calcutta provides " that 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 Mohammedans, by the laws and usages of Moham-
medans, and in the case of Gentoos, by the laws and usages of
Gentoos; and where only one of the parties shall be a
Mohammedan or Gentoo, by the laws and usages of the defen-
dant." The Statute 4 Geo. 4. 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, nevertheless, in the cases of Mohammedans or Gentoos,
their inheritance and succession to lands, rents, and goods and
all matters of contract dealing between party and party, shall be
determined, in the case of the Mohammedans, by the laws and
usages of the Mohammedans, 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 determined by, if the suit had been
brought and the action commenced in a Native Court ; and where
only one of the parties shall be a Mohammedan or Gentoo, by the
laws and usages of the defendant. ' '
On the construction of the Statute 21 Geo. 3. c. 70, § 17,
Pontifex, 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 determinable by
the laws and usages of the Gentoos " (i). 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, par. 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 Hindu and Mohammedan laws of inheritance amongst Hindus
and Mohammedans (k). The provision for the case of " only one
(t) Sarkies v. Prosonomoyee Dossee, 1. L. E. 6 Cal. 794, 808. "Gentoo"
means Hindu.
(fc) See Kahandas Narandas, In re, I. L. E. 6 Bom. 154, 166.
OPERATION OF THE HINDU LAW. /
of the parties " being " a Mohammedan or Gentoo " had relation
primarily, if not solely, to the cases of " contract and dealing
between party and party " in which the principle ** In pactionibus
et conventionibus unusquisque se sua lege defendere 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 Mohammedan to convey should
be measured by the Hindu law " (I). But whfere there has been
a contract between a Christian and a Hindu, on which the Hindu
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 (w).
In the mofussil of the Bombay Presidency the Kegulation
(IV. of 1827, § 26) says—" The law to be observed in the trial
of suits shall be Acts of Parliament and Eegulations of Government
applicable to the case; in the absence of such Acts and Eegula-
tions, the usage of the country in which the suit arose; if none
such appears, the law of the defendant, 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 inheri-
tance, partition, adoption and the whole province of family law
amongst the Hindus. The provision in favour of the defendant
is not meant to have an operation such as to enable one man to
dispose of another's rights (n). 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's 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
(l) Per Sir M. R. Westropp, C.J., in Lakshmandas Sarupchand v. Dasrat,
I. L. R. 6 Bom. 168, 184.
(m) Compare the language of Lord Ellenborough in R. v. Picton,
20 Howell's St. Trials, 944-5, quoted by Sir G. C. Lewis, Government of
Dependencies, Note (w), p. 372.
(n) Lakshmandas Sarupchand v. Dnsrat, I. L. R. 6 Bom. 183.
8 HINDU LAW.
to a Christian; the " ownership " transferred cannot 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
(Hindu's) ownership would perhaps have been unencumbered.
How far then the volition of a Hindu 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 Hindu will
sometimes depend on the Hindu law, and especially the law of
Inheritance. In the sphere of contract the Statute law (o) has
now, for most purposes, superseded the Hindu law, and even in
giving effect to the Hindu law of property and family law,
equitable principles derived from the English Courts are brought
to bear on its development in the exigencies to which the present
age gives rise (p). This process is consistent with the Hindu
law which seeks always to undo what has been fraudulently
done (q), and strives to enforce a conscientious fulfilment of
engagements (r) ; but as regards a heritage or the mutual relations
of the persons interested in property through family connection
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 conse-
quences with the Hindu system.
To be correctly apprehended the Hindu law, like other systems
of law, must be studied in its history, and in its connection 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 commentators of authority, has been largely
influenced by the philosophical systems (s). The texts have in
(o) The Indian Contract Act IX. of 1872. See also in Mollwo March d Co.
V. The Court of Wards, the dictum Supp. I. A., at p. 100.
(p) See Kahandas Narandas, In re, 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. 52;
4 Beng. L. R. 8 A. C. As to the doctrine of notice, see I. L. R. 6 Bom. 193,
207, referring to Radhanath Doss v. Gisborne, 14 M. I. A., at p. 17.
iq) Vyav. May. Chap. IV. s. 7, para. 24. Stokes's H. L. B. 79.
(r) Vyav. May. Chap. IX. 4, 10. StokesVH. L. B. 134, 136.
(s) See Vasishtha, Chap. XVI. paras. 1, 5, and Note. Transl. p. 79. Col. Dig.
Book I., Chap. II., T. 49. Comm. and note.
SOURCES OF THE HINDU LAW. 9
some instances been manipulated in order to bring them into
accordance with notions of comparatively recent growth. Thus
to reduce to precision and harmony the law presented by the
sources, there is need for a strict 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 guides of ethical and legal thought, are
so frequent and so submissive ; the tendency of custom, even
where it has diverged from their teaching, is so strong to revert
to obedience to their rational commands (t), that a study of them,
some comprehension of their character and teachings, is indis-
pensable as a foundation for a true mastery of the practical law
of to-day.
II.— SOUECES OF THE HINDU LAW.
" God produced the transcendent body of law; since law is the
King of kings, far more powerful and rigid than they ; nothing can
be mightier than law by whose aid, as by that of the highest
monarch, even the weak may prevail over the strong " (v). Thus
the Hindus regard their laws — religious and civil — as of divine
origin. " That which was heard or revealed " is called the Sruti,
and consists of the Vedas revealed by Brahma himself; " that
which was remembered " is called the Smriti, and comprises
the Dharma Shastra communicated to mankind through inspired
Eishis or sages whose lives are recorded in the Puranas, commonly
called the fifth Veda (w), attributed to Vyasa. The Sruti, divided
into Mantras, Brahmanas and Upnishads, is of little legal value
beyond furnishing evidence of some legal usage, while the Smriti
embodies the law proper, both substantive and adjective. For
interpretation the same rules are applied to both these authorities.
They are collected in the Mimansas or disquisitions on proof and
authority of precepts. Jaimini was the founder of the School
of Purva Mimansa, which teaches the art of reasoning with the
(t) Compare the remarks of Innes, J., as to the submission of the non-
Aryan tribes to the Hindu Law in Muttu Vaduganadha Tevar v. Dora Singha
Tevar, I. L. R. 3 Mad., at p. 309.
(v) Veda (Gloss of Sancara), SarBr., 14, 4. 2, 23; Bri. Ar. Up. 1, 4, 14.
iw) Ganga Sahai v. Lekhraj Singh, I. L. E. 9 All. 289. Colebrooke,
Pref. p. Xn.
10 HINDU LAW.
express view of aiding the interpretation of the Vedas; Vyasa
founded the Uttara Mimansa, commonly called the Vedanta,
which deduces from the text of the Indian Scriptures a refined
psychology leading to a denial of a material world (x). The
Sutras were devised for the study of the Vedas, and consisted of
strings of rules containing the substance of oral lessons to aid
the memory. Those which related to law and practical life were
called the Dharma Sutras, and were classified into Charanas,
embodying the views of certain well-known teachers such as
Gautama (y), Baudhayana (y), Anastamba (y), Vaisishtha and
Vishnu (z).
The Dharma Shastra may be divided into three classes :
1. The Smritis or Text-Books or Institutes, or Sanhitas, the
foundation of all Hindu law, are attributed to various Eishis or
ancient sages. There are three Kandas or sections in each : the
first, Achara or ritual, which treats of the initiatory ceremonies,
caste duties, rites of purification and sacrifice and social and
domestic obligations; the second, Vyavahara or law proper, sub-
stantive and adjective; and the third, Prayaschita, relating to
expiation and religious sanctions. In form and doctrine they are
practically the same as Manva Dharma Shastra or the Institutes
of Manu. These are no longer regarded as final authorities in
deciding questions of law.
2. The Vyakhyana or Glosses and Commentaries upon the
Smritis. They form the second great authority of Hindu law, and
their number is fairly numerous. Some are merely explanatory
of the texts taken from the Smritis, while others are regarded as
final authorities; " and these latter together with the Digests,
the third class of law books, are the immediate authorities for the
opinion of lawyers in the respective Schools where the doctrines
they uphold may prevail." (zz). The Commentaries on the
Institutes of Manu is an instance of the first kind, while the
Mitakshara, a commentary on Yajnavalkya, is an instance of the
second kind.
3. The Nibandhana Grantha or Digests. In conformity with
the precept of Manu — " Where there are two sacred texts
(x) Morley's Digest, Introduction, p. CLXXXIX. ; Colebrooke on the
Philosophy of the Hindus, Essays, Vol. I. p. 227.
(y) Translated by Dr. Biihler.
(z) Translated by Dr. Jolly. Sacred Books of the East, Vol. II., VII.
and XIV.
(zz) Morley's Digest, Introduction, p. CCI.
SOURCES OF THE HINDU LAW. 11
apparently inconsistent both are held to be law, for both are
pronounced by the wise to be valid and reconcilable " — they aim
at reconciliDg apparent contradictions in the texts of the Smritis.
These Digests are either general or treat of particular portions of
the law embodying texts taken from the Smritis. An instance of
this class of work may be mentioned the famous Smriti Tatwa
of Raghunandana Vandyaghatiya, in twenty-seven volumes, the
greatest authority of law in the Gauriya or Bengal School.
The Vedas and the Mimansas are more studied in the South
of India than in the East, and the jurists of Behar and Bengal
take the Nyaya or dialectic philosophy, of which Gautama is
the acknowledged author, for rules of reasoning to interpret the
law to suit the requirements of a progressive society. Impelled
by ideals of progress, civilisation and expansion, the Hindus spread
all over the Indian Peninsula, carrying their laws with them.
They came into contact with other peoples with different habits
of thought and of action. Sages arose to meet the emergency.
Thus to the sources of the law of divine origin we find Manu
adding * * approved or immemorial usages ' ' or custom of the
people and equity that which was acceptable to reason (a). Inter-
pretation of the law moved apace, and jurists wrote with reference
to the needs of a particular locality. Schools of law thus sprang
into existence. Wherever joint property system had taken firm
root, based upon agricultural life or political ideals, the Mitakshara
had to be interpreted with due consideration of the local wants;
wherever the patriarchal system had superseded the joint property
system, as in Bengal, perhaps consequent upon the ideals incul-
cated by Gautama, the individualistic system had to be introduced.
In the extreme south, the people of which were regarded as
less civilised, and to which the ray of civilisation had little
penetrated, the matriarchal system still held sway.
Thus it was in the eleventh century that we find five Schools of
the Hindu Law as definitely formed — namely, the Maharashtra,
the Dravida, the Benares, the Mithila and the Gauriya (b).
This may have been due to the impact of the Hindu civilisation
with the Islamic (c). Kevival in the shape of reorganisation
(a) Manu, II. 6; Yajnavalkya, I. 40, 166 and 343, II. 21; Sanjivi v. Kashir
T. L. E. 21 Mad. 229.
(h) Morley's Digest, Introduction, p. CLXXXIX. ; Collector of Madura v.
Motoo Ramlinga, 12 M. I. A. 397 ; Narasammal v. Balaramcharlu, 1 Mad.
H. C. 420.
(c) Saravadhikari's Hindu Law of Inheritance.
12 HINDU LAW.
brought into existence powerful kingdoms which patronised the
compilation of the various works based upon the interpretation
of the Mitakshara leading up to the formation of the various
schools which are grouped under that head ; while in Bengal, where
the patriarchal system had replaced the joint-property system, we
find Jimutavahana in the fifteenth century asserting the force of
the Dayabhaga as an individualistic system much on the same
lines as was taught by Islam.
(7.) — On the Authorities of the Hindu Law as prevailing in
the Bombay Presidency .
(I.) The Maharashtra School.
1. The authorities on the written Hindu Law in Western India
are, according to Colebrooke (d), the Mitakshara of Vijnanesvara
and the Mayukhas, especially the Vyavaharamayukha of
Nilakantha. Morley (e) adds the Vyavaharamadhava Nirnaya-
sindhu, Smritikaustubha, Hemadri, Dattakamimamsa, and
Dattakachandrika. The quotations of the Sastris, appended 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 Mitakshara of Vijnanesvara,
2. The Mayukhas of Nilakantha, and especially the Vya-
vaharamayukha ,
3. The Viramitrodaya of Mitramisra,
4 and 5. The Dattakamimamsa of Nandapandita and the
Dattakachandrika of [Devandabhatta] Kubera (/),
6. The Nimayasindhu of Kamalakara,
7 and 8. The Dharmasindhu of Kasinatha Upadhyaya and the
Samskarakaustubha of Anantadeva,
(d) Strange, EL H. L., 4th ed., p. 318. Preface to Treatises on Inheritance,
Stokes's H. L. B., p. 173.
(e) Digest II. CCXXII.
(/) Koa Saheb V. N. Mandlik, Vyavaharamayukha and Yajn. Introd.
p. Ixxii., is right in objecting to Mr. Sutherland's conjecture, which attributes
the authorship of the Dattakachandrika to Devandabhatta.
AUTHORITIES ON WRITTEN LAW. 13
9, and lastly, in certain cases the Dharmasastras, or the Smritis
and Upasmritis, which are considered to be Kishivakyani,
*' sayings of the sages," together with their commentaries.
These results have been corroborated by the concurrent
testimony of those Law Officers and Pandits whom we have
had an opportunity of consulting.
RELATIVE POSITION.
2. The relative position of these works to each other may be
described as follows : — In the Maratha country and in Northern
Kanara the doctrines of the Mitakshara are paramount; the
Vyavaharamayukha, the Viramitrodaya and the rest are to be
used as secondary authorities only. They serve to illustrate the
Mitakshara 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 Mitakshara (g). Among
the secondary authorities, the Vyavaharamayukha takes prece-
dence of the Viramitrodaya (h). The questions of inheritance in
the island of Bombay are to be determined in accordance with
the Mitakshara, subject to any varying doctrine contained in the
Vyavaharamayukha; they should be harmonised wherever it is
reasonably possible (z). The Dattakamimamsa and the Dattaka-
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 Vyavaharamayukha or of the Dharmasindhu and Nirna-
yasindhu. The two latter works and the Samskarakaustubha,
occupy an almost equal position in regard to questions on
ceremonies and penances. They are more frequently consulted
(gf) See The Collector of Madura v. Mootoo Ramalinga Sathupathy,
12 M. I. A. 438; S. C. 10 Suth. (P. C.) 17; S. C. 1 B. L. E. (P. C.) 1;
Nayaran Bahaji v. Nana Manohar, 7 Bom. H. C. E. 167, 169, A. C. J. ;
Krishnaji Vyankatesh v. Pandurang, 12 Ihid. 65; Rahi v. Govind valad
Teja, I. L. E. 1 Bom. 106; Lakshman Dada Naik v. Ramchandra
Dada Naik, 565 S. C. in appeal to P. C. L. E. 7 I. A,, at p. 191; Ramkoonwur
v. Ummer, 1 Borr. E. 460.
(h) 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. 448; S. C.
1 B. L. E. (P. C.) 44; Jagannath Prasad v. Ranjit Singh, I. L. E. 25 Cal.
367.
(t) Bai Kesserhai v. Morariji, L. E. 33 I. A. 176.
14 HINDU LAW.
by the Sastris of the Maratha country than the Mayukhas, which
refer to the same portions of the Dharma. Among these three,
the Nimayasindhu 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 Dharmasastras, or even from the Puranas. The latter have
less authority than the former, and may be overruled by them (k).
In case of a conflict between the rules of the Smritis either may
be followed, as reasoning on principles of equity (yuktivichara)
shall decide the solution (l).
The law of Gujarat in some cases, it seems, alters the order
of the authorities and places the Vyavaharamayukha before the
Mitakshara. A& an instance may be quoted the case of a sister's
succession to her brother's estate, immediately after the paternal
grandmother, which, in accordance with the Mayukha, is allowed
in Gujarat. How far precisely this preference of the Mayukha
goes, is a matter of some doubt, to be cleared up by judicial
determination (m).
(k) Vyasa I. 4. "Where a conflict between the Sruti, Smriti and Puranas
appears, the text of the Sruti is the norm; but in case of a conflict between
the (latter) two, the Smriti is preferable."
(l) See Muir's Sanskrit Texts, II., 165, and III., 179, etc.
(m) See below; B. I. Introd., s. 4, B. (7); Introductory remarks to Chap. II.
8. 14 I. A. 1 ; the case of Vijayarangam v. Lakshman, 8 Bombay H. C. K.
244 0. C. J.; Laluhhai v. Mankuvarbai, I. L. E. 2 Bom. 388; L. K. 7 I. A.
212; S. A. No. 158 of 1870, decided on March 27, 1871, Bom. H. C. printed
Judgments File for 1871.
Eao Saheb V. N. Mandlik (Introd. to Vyavaharamayukha and Yajnavalkya,
p. 1.) has found fault with the above statement of the sources of the Hindu
Law in Bombay, and of their relative importance. He thinks that the
editors of the Digest consider the Mitakshara, the Mayukha and the
Nimayasindhu the only recognised of&cial guides for settling the Hindu 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 Dharmasastras and their Commentaries 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 Puranas, 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
conflicting opinions of other authors, however much the latter may please
individual taste. The editors have further pointed out that the numerous
omissions in the standard works may be supplied by information, derived
from the dicta of the authors of Smritis, whether these be contained in
complete original treatises (Sutras or Dharmasastras), or in quotations given
AUTHORITIES ON WRITTEN LAW. 15,
MITAKSHARA.
3. The first of these authorities, the Mitakshara (n), is the
famous commentary of Vijnanesvara on the Institutes of
by the medieval Nibandhakaras, and by reasoning on principles of equity.
In accordance with these principles they have, in the notes on the cases,
freely drawn on published and unpublished legal works, not contained in
their list, in order to elucidate points left undecided or doubtful in the Mitak-
shara Mayukha, &c. But it did not enter into their plan to give a review
of the medieval literature on Dharma or on Vyavahara, 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 Eao Saheb has given such a
list, at pp. Ix. and Ixi. of his Introduction, 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 sacrifices, 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., which is
stated to have been compiled from answers of Sastris, contains several double
and inaccurate entries (such as Mitakshara and Vijnanesvara, Sarvamayukha,=
all the Mayukhas and the separate titles of the twelve Mayukhas, such as
Madhava, Dinakaroddyota, &c., where specifications are required. It is
incomplete also, as the Eao Saheb himself suspects, and appears to have
been made up exclusively by Konkanastha and Desastha Pandits. Much
fuller information on the legal books, consulted by the Bombay Pandits, may
be obtained from Dr. Biihler's Catalogues of MSS. from Gujarat (facs. III.,
p. 67 seq.) and Dr. Kielhom's Catalogue of MSS. from the Southern Maratha
Country. As regards the comparative estimation in which the books, con-
tained in the Eao 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 — that is, 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 Eao Saheb 's remarks
on the Mitakshara (p. Ixxi.) disprove its pre-eminence, as far as questions
of the Civil Law are concerned. His dictum that there is nothing remarkable
about the book is controverted by the view of the responsible Court Sastris
as pointed out in Krishnaji Vyankatesh v. Pandurang, 12 Bom. H. C. E. 65,
and in Lallubhai Bapuhhai v. Mankuverhai, I. L. E. 2 Bo. S., at pp. 418,
445, and of many excellent native authorities, as well as by the respectful
treatment accorded to Vijnanayogin, in the best native compilations of the
sixteenth and seventeenth centuries. His remark that the works of Kamalakara,
Madhava, Narayana and other Bhattas are more frequently consulted than
the Mitakshara is true. But the reason of this is that, under British rule,
with its organised 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 subjects the books, named by him, give fuller information than
the Mitakshara.
in) The proper title of the work, which however is used in the MSS. only,
is Eijumitaksheratika.
16 HINDU LAW.
Yajnavalkya. The latter work, which probably is a versification
of a Dharmasutra — that is, of a set of aphorisms on Dharma
belonging to the White Yajurveda (o), contains about a thousand
verses divided into three chapters (kandas) which treat respec-
tively " of the rule of conduct " (achara), of civil and criminal law
(vyavahara), and of penances (prayaschitta). As may be inferred
from the small extent of Yajnavalkya 's work, this author gives
fragmentary rules only, which neither exhaust their subject, nor
are in every case easily intelligible. Vijnanesvara remedies the
defects of his original, not only by full verbal interpretations,
but also by adding long discussions on doubtful points, and by
illustrating and developing Yajnavalkya 's and his own doctrines
by quotation from the Institutes of other Eishis. For he holds;
the opinion, which is also the one generally received among
modern Hindu lawyers, that the Smritis or various Institutes of
Law form one body, and are intended to supplement each
other (p). But this opinion occasionally misleads him, and causes
him in some few cases to explain the text of Yajnavalkya 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 Peninsula. The discussions and
amplifications, added by Vijnanesvara to his explanation of
(o) See below.
(p) Vijnanesvara says in his commentary on Yajnavalkya I. 5, which
contains an enumeration of certain authors of Smritis (Mit. Acharak, lb. 15,
Bahuram's edition of Samvat 1869) : —
" The meaning (of this verse, I. 5) is that the Institutes of Law composed
by Yajnavalkya 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) Baudhayana
and others (who are not mentioned) from the Institutes of Law ; as each of
these (Smritis) 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.
Chap. I. pi. 12; Col. Dig. V. s. 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 Ramalinga Sathapathy, 12 M. I. A., at p. 438.
The Hindu 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'aprfes la m^thode des l^gietes il faut que
les textes aient raison lorsqu'ils ne pr^sentent aucun sens." See Goldstiicker
" On the Deficiencies in the Administration of the Hindu Law," p. 2.
MITAKSHARA. 17
Yajnavalkya 's text, make the Mitakshara rather a new and original
work, based on Yajnavalkya than a mere gloss, and one more
fit to serve as a code of law than the original. But extensive as
the Mitakshara is, it does not provide for all the cases arising,
and, if used alone, would often leave the lawyer without guidance
for his decision.
Eegarding the life and times of Vijnanesvara little is known.
Kecent discoveries, however, make it possible to fix his date
with greater certainty than could be done formerly. Mr. Cole-
brooke (q) placed Vijnanesvara between 800 — 1300 a.d., because,
on the one hand, he is said to have belonged to an order of
ascetics founded by Sankaracharya, who lived in the eighth
century a.d., and because, on the other hand, Visvesvara, the
oldest commentator, flourished in the fourteenth century of the
Christian era. He adds that if the Dharesvara (r), " the lord of
Dhara," quoted in the Mitakshara, is the same as the famous
Bhojaraja, king of Dhara, the remoter limit of Vijnanesvara 's
age will be contracted by more than a century. In favour of Mr.
Colebrooke's latter statement, Kamalakara's testimony may be
adduced, who in the Vivadatandava (succession of a widow)
ascribes the same opinion to Bhojaraja, which the Mitakshara
attributes to Dharesvara (the lord of Dhara).
A much better means for settling the date of Vijnanesvara is,
however, furnished by some verses, which are found at the end
of the Mitakshara in some of the oldest MSS. (s), and in the
Bombay lithographed edition, and which were apparently not
unknown to Mr. Colebrooke (t).
There we read verses 4 and 6 (v): —
4. ** There has not been, nor is nor will be on earth a city,
comparable to Kalyanapura; no king has been seen or heard of,
iq) Stokes's H. L. B., p. 178.
(r) See, for example, Col. Mit. II. 1, 8 (Stokes, p. 429).
(s) The MS. of the Govt, of Bombay, dated Saka Samvat 1389, Dr. Bhau
Daji MS. and Ind. Off. No. 2170, dated Vikrama Samvat, 1835.
(t) Stokes, p. 178.
(v) See Joum. Bo. Br. Eoy. As. Soc. IX., pp. 134-138, and Ixxiv. — Ixxvi.
The recovery of the Vikramankadevacharita makes it probable that Vikraman-
ko^amah, not Vikramarkopamah, is the correct reading in verse 4. The
statement made at the end of the article, that the concluding verses belong
not to Vijnanesvara, but to some copyist, is no longer safe. Eecent researches
show that most if not all Sanskrit authors appended to their works statements
regarding their own private affairs, which frequently are not in harmony
with our notions of modesty.
H.L. 2
18 HINDU LAW.
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 (Eama), the best of the scions
of Eaghu'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 Vikramaditya protect this
world, as long as moon and stars endure."
Vijnanesvara lived, therefore, in a city called Kalyanapura,
under a king named Vikramaditya or Vikramanka. As the learned
Pandit, by speaking of his opponents as " the Northerners "
shows (w) that he was an inhabitant of Southern India, it cannot
be doubtful that the Kalyanapura named by him is the ancient
town in Nizam's dominions, which from the tenth to the fourteenth
century was the seat of the restored Chalukya dynasty (x). This
identification is supported by the consideration that Kalyana in
the Dekhan is the only town of that name, where princes, called
Vikramaditya, are known to have ruled. One of these Vikrama-
ditya-Kalivikrama-Parmadiraya, bore also, according to the testi-
mony of his chief Pandit and panegyrist, Bilhana, the not very
-common appellation, Vikramanka (y). 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 Vijnanesvara wrote in the latter
half of the eleventh century, a conclusion which agrees well
enough with his quoting Bhoja of Dhara, who flourished in the
first half of the same century (z). It may be added that Vijnanes-
vara certainly was an ascetic, because he receives the title
paramahamsaparivrajakacharya. By sect he was a Vaishnava.
His father's name was Padmanabha-bhatta, and he belonged to
the Bharadvaja gotra. The discovery that Vijnanesvara was an
inhabitant of Kalyana in the Dekhan, and a contemporary, if
not a protege, of the most powerful king whom the restored
Chalukya 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.
(w) See Journ. Bo. Br. As. Soc. IX., g. Ixxv.
{x) Eegarding the Chalukya dynasty, see Sir W. Elliott, Journ. Bengal
Br. As. Soc. IV., p. 4.
iy) See Vikramankadevacharita of Bilhana, passim.
(z) See Indian Antiquary, VI., p. 50 seq.
MITAKSHARA. 19
The explanation of the Mitakshara is facilitated by two Sanskrit
commentaries, the above-mentioned Subodhini of Visvesvara-
bhatta and the Lakshmivyakhyana, commonly called Balambhat-
tatika, the work of a lady, Lakshmidevi, who took the nom de
plume Balambhatta (a). Visvesvara's comment explains selected
passages only, while Lakshmidevi gives a full and continuous
verbal interpretation of the Mitakshara accompanied by lengthy
discussions. She generally 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 Sastris, if unsupported
by other authorities.
Two other works, the Viramitrodaya and the Yajnavalkya-
dharmasastranibandha, a commentary on Yajnavalkya, by
Aparadityadeva, or Apararka, also give great assistance for the
explanation of the Mitakshara. About the former more will be
said below. As regards Apararka 's bulky work, it must be noted
that Mr. Colebrooke recognised its importance, and frequently
quoted it (6). 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.
Apararka or Aparadityadeva belonged to the Konkana branch of
the princely house of the Silaras, or Silaharas, who had their
seat at Puri, and held the Konkana as well as the adjacent
parts of the Dekhan as feudatories, first of the Eathors of
Manyakheta-Malkhet, and later of the Chalukyas of Kalyana.
He reigned and wrote between 1140 — 1186 a.d., shortly after
Vijnanesvara 's times (c). His doctrines closely resemble those
of his illustrious predecessor; several passages of his work look
like amplifications of Vijnanesvara 's dicta, and are of great value
for the correct interpretation of the Mitakshara. It is, however,
difficult to say whether Apararka in these cases actually used the
Mitakshara, or whether both drew from a common source.
(a) See Colebrooke Stokes's H. L., p. 177, Aufrecht, Catal. Oxf. MSS.
p. 262a; F. E. Hall Contribution towards Ind. Bibl., p. 175. The correct
form of Lakshmidevi 's family name is Payagunde.
(h) Stokes's H. L. B., p. 177, and Translation of the Mit. on Inh., passim.
(c) See Journ. Bo. Br. As. Soc. Vol. XII. Report on Kasmir, p. 52.
20 HINDU LAW.
Besides the Indian commentaries and Nibandhas, there is the
excellent translation of the Mitakshara on Inheritance, by Cole-
brooke (d), which has always been made use of in translating the
authorities appended to the Vyavasthas. In some places we
have been compelled to dissent from Colebrooke; but we are
persuaded that in nearly aU these instances Colebrooke had
different readings of the text before him. The first part of the
Vyavaharakanda of the Mitakshara has been translated by W. H.
Macnaghten. The edition of the Sanskrit text of the Mitakshara
used for the Digest is that issued by Baburam, Samvat, 1869.
VYAVAHARAM AYUKHA .
4. The Vyavaharamayukha is the sixth Mayukha or ** ray "
of the Bhagavanta-bhaskara, " the sun," composed (with the
permission of, and dedicated to, king Bhagavantadeva) by Nila-
kanthabhatta. The Bhaskara, which consists of twelve ** rays "
or divisions, forms an encyclopedia of the sacred law and ethics
of the Hindus. It contains : —
1. The Samskaramayukha, on the sacraments.
2. The Acharamayukha, on the rule of conduct.
3. The Samayamayukha, on times for festivals and religious
rites.
4. The Sraddhamayukha, on funeral oblations.
5. The Nitimayukha, on polity.
6. The Vyavaharamayukha, on Civil and Criminal Law.
7. The Danamayukha, on religious gifts.
8. The Utsargamayukha, on the dedication of tanks, wells, &c.
9. The Pratishthamayukha, on the consecration of temples and
idols.
10. The Prayaschittamayukha, on penances.
11. The Suddhimayukha, on purification.
12. The Santimayukha, on averting evil omens (e).
(d) Two treatises on the Hindu Law of Inheritance, translated by H. T.
Colebrooke, Calcutta, 1810, 4to. Eeprinted in Wh. Stokes's H. L. B., Madras,
1865, and by Girish Chandra Tarkalankar, Calcutta, 1870.
(e) See Borradaile in Stokes's H. L. B., p. 8. The correctness of the
order in which the books are enumerated is proved by the introductory verses
of each Mayukha, where the immediately preceding one is always mentioned, as
well as by the longer introduction to one of the MSS. of the Nitimayukha.
VYAVAHARAMAYUKHA. 21
The Vyavaharamayukha, which has the greatest interest for
the student of Hindu 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 Hindu law, which, however,
are arranged in a peculiar manner differing from the systems of
other Pandits. In his doctrines Nilakantha follows principally
the Mitakshara and the Madanaratna of Madanasimhadeva (/),
sometimes preferring the latter to the former. From a com-
parison of the portions on inheritance of the Mayukha and
Madanaratna, it would seem that Nilakantha sometimes even
borrowed opinions from Madana without acknowledgment. Some
passages of the Mayukha — for example, the discussion on the
validity of certain adoptions — are abstracts of sections of the
Dvaitanirnaya, a work by Sankara, the father of Nilakantha, and
are not intelligible without the latter work (g).
Of Nilakantha 's life and times some account has been given
by Borradaile (h). According to him, that Pandit was of Desastha-
Maharashtra descent and born in Benares. He lived, as one of
his descendants, Harabhatta Kasikar, told Captain Eobertson, the
Collector of Puna, upwards of two hundred years ago — that is,
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 (i). Borradaile adduces also the state-
ment made at the end of some MSS. of the Vyavaharamayukha,
that Nilakantha lived, whilst composing the Bhaskara, under the
protection of Bhagavantadeva, or Yuddhasura, a Eajput chief of
the Sangara tribe, who ruled over the town of Bhareha, near the
confluence of the Chambal and of the Jamna. A possible doubt
as to whether the passage containing these notes is genuine and
(/) This author compiled an encyclopedia, similar to that of Nilakantha,
the twelve Uddyotas. The work, commonly called Madanaratna, bears also
the title Vyavaharaddyota.
ig) Stokes's H. L. B., p. 58 seq.; May., Chap. IV. sect. V. ss. 1 — 5.
(h) Stokes's H. L. B., p. 7 seq.
(t) The correctness of the information given to Borradaile is now attested
by the paper of Professor Bal Sastri, translated in the Introd. to Eao Saheb
V. N. Mandlik's Vyavaharamayukha, p. Ixxv. For it appears that Nilakantha
was the grandson of Narayanabhatta, who wrote in Saka Samvat 1459,
or 1535 A.D.
22 HINDU LAW.
its contents trustworthy, is removed by the fact that many copies
of the Sraddha, Samskara and Nitimayukhas likewise contain the
statement that Nilakantha-bhatta, son of Sankara-bhatta, and
grandson of Narayanasuri, was ordered by Bhagavantadeva, a^
king of the Sangara dynasty, to compose the Bhaskara. Some
copies of the Nitimayukha and of the Vyavaharamayukha enum-
erate also nineteen or twenty ancestors of Bhagavantadeva (k).
At the same time the author calls himself there Dakshinatya-
vatamsa ** of Dekhani descent," and thus confirms the report of
the Puna Brahmins. The edition of the Sanskrit text of the
Vyavaharamayukha used for the Digest is the oblong Bombay
edition of 1826. The translation of the passages from the Mayukha
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 (L).
VIRAMITRODAYA.
5. The Viramitrodaya is a compilation by Mitramisra, which
consists of two kandas on Achara and on Vyavahara (m). The
latter is written nearly in the same manner as the Mayukha. But
Mitramisra adheres more closely to the Mitakshara than any
other writer on law. He frequently quotes its very words; to
which he adds further explanations and paraphrases. At the same
time he enters on lengthy discussions regarding the opinions
advocated by Jimutavahana, Eaghunandana, and the Smriti-
chandrika. Occasionally he goes beyond or dissents from the
doctrines of the Mitakshara. In the Vyavaharakanda (n) which
has been published, Mitramisra says that he was the son of
Parasurama and grandson of Hamsapandita, and that he composed
his work by order of king Virasimha, who, according to the last
(k) See Aufrecht, Oxf. Cat., pp. 280-81. His list does not quite agree with
that given in the first edition of the Digest. The text of the verses is so
corrupt that it cannot be settled vsrithout a collation of fresh and more ancient
copies.
(l) The translation of Eao 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.
(m) This would not be a matter of surprise if a third kanda on penances
(prayaschitta) were found. But hitherto only two have become known.
(n) Viramitrodaya, sloka 2
VIRAMITRODAYA. 23
stanza of the book, was the son of Madhukarasaha. The beginning
of the unpubhshed acharakanda gives a fuller account of the
ancestors of Mitramisra's patron, among whom, Medinimalla,
Arjuna, Malakhana, Prataparudra, and Madhukara are enum-
erated. Besides, it is stated that these kings were Bundelas (o).
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 Fazl, the minister of Akbar, and
author of the Ayin-Akbari (p). This chief, who was violently
persecuted by Akbar for the assassination of his minister, was also
a contemporary of Jehangir and Shah Jehan. The Viramitrodaya,
therefore, must have been written in the first half of the seven-
teenth 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 Chudamani
at Khidirapura, 1815. A careful translation of the part of the
Viramitrodaya relating to inheritance has been published, accom-
panied by the text, by Mr. Golapchandra Sarkar Sastri, Calcutta,
1879.
DATTAKAMAMSA AND DATTAKACHANDRIKA.
6. The next two authorities, the Dattakamimamsa and
Dattakachandrika, do not call for any remark here, as they have
little importance for the law of inheritance. The discussion of
them belongs to the law of adoption.
NIRNAYASINDHU.
7. The Nirnayasindhu of Kamalakara, called also Nimayaka-
malakara, consists of three parichhedas, or chapters. The first
and second contain the kalanirnaya — that is, the division of time,
the days and seasons for religious rites, eclipses of the sun and
moon, and their influence on ceremonies, &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
Samnyasis and other miscellaneous topics of the sacred law.
The book is a compilation of the opinions of ancient and modem
(o) Viramitrodaya, Ind. Off. No. 930, slokas 1—37.
(p) See Gazetteer North- West Provinces, I., pp. 21—23, where Birsimh's
pedigree, which exactly corresponds with Mitramisra's genealogy of Virasimha,
has been given.
24 HINDU LAW.
astronomers, astrologers, and authors on sacred law, from whose
works it gives copious quotations. The passages quoted are
frequently illustrated by Kamalakara's own comments, and
occasionally lengthy discussions are added on points upon which
his predecessors seem to him to have been at fault. Kamalakara
himself tells us that in the first and second chapters he chiefly
followed Madhava's Kalanimaya and the section of Hemadri's
work which treats of Times (q). His learning is esteemed very
highly in Western India, especially among the Marathas, and the
Nimayasindhu is more relied upon in deciding questions about
religious ceremonies and rites than any other book.
In the introductory and in the concluding slokas of the
Nimayasindhu, Kamalakara informs us that he was the son of
Eamakrishna, the grandson of Bhatta Narayanasuri, and the great
grandson of Eamesvara. He also names his mother Uma, his
sister Ganga, and his elder brother Dinakara, the author of the
Uddyotas (r). His literary activity was very extensive. He wrote,
also, the Vivadatandava, a compendium of the civil and criminal
law, based on the Mitakshara, a large digest of the sacred law,
called Dharmatattva-Kamalakara, divided into ten sections :
1, vrata, on vows; 2, dana, on gifts; 3, karma vipaka, on the
results of virtue and sin in future births; 4, santi, on averting
evil omens; 5, purta, on pious works; 6, achara, on the rule of
conduct; 7, vyavahara, on legal proceedings; 8, prayaschitta, on
penances; 9, sudradharma, on the duties of Sudras; 10, tirtha,
on pilgrimages. The several parts are frequently found separately,
and many are known by the titles sudrakamalakara, danakamala-
kara, &g. Kamalakara, further, composed a large work on
astronomy, the siddhantatattva, vivekasindhu and other
treatises (s). He himself gives his date at the end of the Nima-
yasindhu, where he says that the work was finished in Vikrama
Samvat 1668 or 1611 — 12 a.d. The edition of the Nimayasindhu,
used for the Digest, is that issued by Vitthal Sakharam, Saka
1779, at Puna.
(q) Nimayasindhu I. 7.
(r) Compare also Professor Bal Sastri's paper in Rao Saheb Mandlik's
Vyavaharamayukha, &c. pp. Ixxv. — vi.
(s) See Rajendralal 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), ritu (6), bhu (1),
mite gatebde narapativikramato. The second figure has, as is frequently
required in dates, to be read twice.
THE SMRITIS. 2'6
SAMSKARAKAUSTUBHA .
8. The Samskarakaustubha of Anantedeva, son of Apadeva, or
one of the numerous compilations treating of the sixteen sacra-
ments and kindred matters. It is said to belong to the same time
as the Nimayasindhu.
The author (t) compiled a good many other treatises on philo-
sophical subjects, a Smritikaustubha and a Dattakaustubha on
the law of adoption (v). The edition referred to in the Digest is
the one printed at Bapu Sadasiv's Press, Bombay, 1862.
DHARMASINDHU.
9. The Dharmasindhu or Dharmasindhusara, by Kasinatha (w),
son of Anantadeva, is a very modern book of the same description
as the Nimayasindhu. The author, according to the Pandits,
was a native of Pandarpur, and died about seventy-five or eighty-
five years ago.
SMRITIS.
10. The word Smriti means literally "recollection," and is
used to denote a work or the whole body of works (x), in which
the Eishis or sages of antiquity, to whose mental eyes the Vedas
were revealed, set down their recollections regarding the per-
formance of sacrifices, initiatory and daily rites, and the duty of
man in general. The aphorisms on Vedic sacrifices (Srautasutras),
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 (Dharmasutras, Dharmasastras) are
all included by the term Smriti. In the common parlance of our
days, however, the term has a narrower meaning, and is restricted
(t) The author's patron was a certain Eaja Chandadeva Bahadur, about
whom nothing further is known.
(v) Compare F. E. Hall, 1. c, pp. 62, 145, 186, 190, 191, and particularly
p. 185, Eajendralal Mitra, Bikaner Catalogue, p. 466.
(w) Prof. Goldstiicker " On the Deficiencies in the present Administration
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 Maratha Country generally use this form, and the Law Officers quote
the book under this title. The form Dharmasindhusara finds just a little
favour with the learned of Western India, as the full title of Vijnanesvara's
great commentary, Eijumithakshara, instead of which the abbreviation
Mitakshara, alone, is current.
(x) Hence the word is sometimes used in the singular as a collective noun
and sometimes in the plural.
26 HINDU LAW.
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 Upasmritis, or
supplenaentary Smritis. Neither the limitation of the number,
nor the division is, however, found in the older works on law,
such as the Mitakshara and those books which contain it, do
not always place the same works in the same class {y). According
to Hindu views, the Smritis were mostly composed and proclaimed
by the Eishis whose names they bear. But in some cases it is
admitted that the final arrangement of these works is due to the
pupils of the first composers (z). The Hindus are driven to this
admission by the circumstance that some times the opening verses
of the Dharmasastras contain conversations between the composer
and other Eishis, 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 Eishis, who in their turn 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 Eishi who brought it into its
present shape. Or, in the case of the Manava Dharmasastra, it
is asserted that Brahma taught its rules to Manu, who proclaimed
them to mankind. But his work was first abridged by Narada,
and the composition of the latter was again recast, by Sumati,
the son of Bhrigu {a). But, as even such Smritis were proclaimed
by men, they partake of the human character, which the
Mimamsakas assign to this whole class of works, and the great
distinction between them and the revealed texts, the Veda or
Sruti remains.
Hindu 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. From the quotations and lists
given in the Smritis, their commentaries, the Puranas and the
modem compilations on Dharma, as well as from the MSS.
actually preserved, it appears that, counting the various redactions
iy) Borradaile in Stokes's H. L. B., p. 4 seq.
(z) Mit. Achara la, 13. " Some pupil of Yajnavalkya abridged the Dharma-
sastra composed by Yajnavalkya, which is in the form of questions and answers,
and promulgated it, just as Bhrigu, that proclaimed by Manu."
(a) See preface to Narada, translated by Sir W. Jones, Institutes of Manu,
p. xvi. (ed, Haughton)
THE SMRITIS. 27
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 me different from the treatises
quoted); 3, Atri (two redactions exist); 4, Atreya; 5a, Apastamba
(prose, exists); 5??, Ditto (verse, exists) ; 6, Alekhana; 7, Asmara-
thya; 8a, Asvalayana (verse, exists); 8b, Brihat-A. (verse, exists);
9a, Usanas (prose, fragment exists); 9?>, Ditto (verse, exists);
10, Eishyasringa ; 11, Eka; 12, Audulomi; 13, Aupajandhani ;
14, Kanva (verse, exists); 15, Kapila (verse, exists); 16, Kasyapa
(prose, exists); 17a, Kanva; 175, Kanvayana (prose, exists);
18, Katya; 19a, Katyayana (verse); 196, Ditto (karmapradipa,
exists); 19c, Vriddha Katy (verse); 20, Karshnajini; 21a, Kas-
yapa; 21, Upa-Kasyapa (prose, exists) (b); 22, Kuthumi; 23,
Kunika ; 24, Kutsa ; 25, Krishnajini ; 26, Kaundinya ; 27, Kautsa ;
28, Gargya; 29a, Gautama (prose, exists); 29b, Ditto (verse,
exists); 29c, Vriddha Gaut; 30, Chidambara; 31, Chyavana;
32, Chhagaleya ; 33, Jamadagni ; 34, Jatukamya ; 35, Jabali (c) ;
36, Datta; 37a, Daksiha (verse, exists); 37b, Ditto (quoted);
38, Dalbhya (verse, exists) ; 39a, Devala, (verse, exists) ; 395, Ditto
(quoted) ; 40, Dhaumya ; 41, Nachiketa ; 42, Narada (verse, vyava-
hara-section, exists); 43a, Parasara (verse, exists); 435, Brihat
Par. (verse, exists) ; 44, Paraskara ; 45, Pitamaha ; 46a, Pulastya ;
465, Laghu Pul; 47, Pulaha; 48, Paithinasi; 49, Paushkarasadi or
Pushkarasadi ; 50a, Prachetas; 505, Laghu. Prach. ; 51, Prajapti
(verse, exists) ; 52, Budha (prose, exists) ; 53a, Brihaspati (verse,
part exists); 535, Brihat Brihaspati; 54, Baudhayana (prose,
exists) ; 55, Bharadvaja (verse, exists) ; 56, Bhrigu (said to exist) ;
57a, Manu (prose, quoted) ; 575, Ditto (verse, exists) ; 57c, Vriddha
M.; 576^, Brihat M. ; 58, Marichi; 59, Markandeya; 60, Maud-
galya; 61a, Yama; 615, Laghu Y. (verse, exists); 62a, Yajna-
valkya (verse, exists); 625, Vriddha Y. ; 62c, Brihat Y. (exists);
63, Likhita (verse, exists) ; 64, Lohita (verse, exists) ; 65,
Laugakshi; 66, Vatsa; 67a, Vasishtha (prose, exists); 675, Ditto
(verse, exists); 67c, Ditto (verse-, exists); 67^^, Vriddha V. ;
676, Brihat V.; 68, Varshyayani; 69, Visvamitra (verse, exists);
70a, Vishnu (prose, exists); 705, Laghu V. (verse, exists);
71, Vyaghra; 72, Vyaghrapada (verse, exists); 73a, Vyasa;
735, Laghu Vy. (verse, exists); 73c, Vriddha Vy. (verse, exists);
(b) Burnell, Tanjor Cat., p. 124.
(c) Sometimes spelt Jabala.
28 HINDU LAW.
74a, Sankha (prose); 74b, Ditto (verse, exists); 74c, Brihat or
Vriddha S. (chiefly verse, exists); 75, Sankha, and Likkita (verse,
exists) ; 76, Sakatayana ; 77, Sakalya (verse, part exists) ; 78,
Sankhayana (verse, part exists); 79, Satyayana; 80, Sandilya
(verse, exists); 81a, Satatapa (verse, exists); Slh, Vriddha or
Brihat S. (verse, exists); 82a, Saunaka (prose); 825, Ditto (karika
or brihat, verse, exists) ; 82c, Ditto Yajnanga (verse, exists) ;
83a, Samvarta (verse, exists); 836, Laghu S. ; 84, Satyavrata;
85, Sumantu; 86, Soma; 87a, Harita (prose); 87b, Brihat H.
(verse, exists); 87c, Laghu H. (verse, exists); 88a, Hiranyakesin
(prose, exists) (d).
Even this hst most likely does not comprise all the ancient
works on Dharma, and a more protracted search for MSS., and
a more accurate investigation of the modem compilations, will,
no doubt, enlarge it considerably.
As regards the value of the Hindu 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 Gri-
hyasutras, and that in many instances they have been composed
by persons who were authors of such Sutras, is in the main correct.
But the tradition is utterly untrustworthy in the details regarding
the names and times of the authors, and the immediate causes
of their composition, and it neglects to distinguish between the
various classes, into which the Smritis must be divided.
It is, of course, impossible for the critic to agree with the Hindu
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 Kishis, 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
id) 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 quoted in Wh. Stokes's H. L. B., p. 5, note (a) in the
Apastamba, Baudhayana, Vasishtha Dharmasutras, in the Madhava Parasara
and other modem 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, Shattrimsat, Kokila and Saptarshi
Smriti have been intentionally excluded from the above list.
THE SMRITIS. 29
of King Sudas, or Bharadvaja or Samvarta, are the authors of
the hymns preserved in the Eigveda 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 Eigveda,
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's
grammar. Nor can we, with the Hindus, place some of the
Smritis in the Satyayuga, others in the Treta, others in the
Dvapara, and again others in the Kali age (e). The untrustworthi-
ness of the Hindu tradition has also been always recognised by
European scholars, and, in discussing the age and history of the
Smritis they have started from altogether different data. In the
case of the Manava and of the Yajnavalkya Dharmasastras, Sir
W. Jones, Lassen, and others have attempted to fix their ages
by means of circumstantial, and still more, of internal evidence,
and the former work has been declared to belong perhaps to the
ninth century, B.C. (/), or, at all events, to the pre -Buddhistic
times, whilst the latter is assigned to the period between Buddha
and Vikramaditya (g). 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 indications 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 circumstantial evidence (h).
(e) This division is found in Parasara Dharmasastra I., 12.
(/) Sir W. Jones, Mann, p. xi.
(g) Lassen, Ind. Alt. II., 310.
(h) A statement of the case of the Manava Dharmasastra will suffice to
prove this assertionn. Tradition tells us that there were three redactions
of Manu — one by Manu, a second by Narada, and a third by Sumati, the
son of Bhrigu, and it is intimated that the Dharmasastra, proclaimed by
Bhrigu, and in our possession, is the latter redaction. Now this latter state-
ment must be incorrect, as the Sumati's Sastra contained 4,000 slokas, whilst
ours contain only 2,885. Sir W. Jones, therefore, thought that, as we find
quotations from a vriddha or "old" Manu, the latter might be a redaction
of Brighu, 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 Vasishtha on a question
30 HINDU LAW.
Of late, another attempt to fix the age of the Dharmasastras,
at least approximately, and to trace their origin, has been made
by Professor M. Miiller. According to him, the Dharmasastras
formed originally part of those bodies of Sutras or aphorisms in
which the sacrificial rites and the whole duty 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 Sutras
were composed in the period from 600 — 200 B.C., he, of course,
assigns Dharmasastras in Sutras or Dharmasutras 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 (i). He moreover considers the Dharmasastras
in verse to be mere modem versifications of ancient Dharmasutras.
Thus he takes the Manava Dharmasastra not to be the work of
Manu, but a metrical redaction of the Dharmasutra 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 Dharmasutras, that of Apastamba, who was the founder
of a school studying the Black Yajurveda, and author, also, of
a set of Srauta and Grihyasutras.
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 light, will
still more fully confirm his discovery, which is of the highest
importance, not only for the Sanskrit student, but also for the
lawyer and for the Hindu of our day, who wishes to free himself
from the fetters of the achara.
We also divide the Smritis into two principal classes, the Sutras
and the metrical books. In the first class we distinguish between
regarding lawful interest, and this rule is actually found in the Vasishtha
Dharmasastra (last verse of Chap. II.). But nevertheless the "Vasishtha
Dharmasastra quotes four verses from Manu (manavan slokan), two of which
are found in our Manavadharmasastra, whilst one is written in a metre which
never occurs in our Samhita. Besides, the Mahabharata and Varahamihira,
who lived in the sixth century a.d., quote verses from Manu which are only
found in part in our Dharmasastra. See Stenzler in the Indische Studien I.,
p. 245, and Kern Brihatsamhita, preface, p. 43.
(i) See M. Miiller's Hist, of Anc. Skt. Lit., pp. 61, 132, 199, 206—208,
and his letter printed in Morley's Digest and Sacred Books, vol. II., p. Ix.
That Sutras, especially the Grihyasutras, were the sources of the Smritis,
was also stated by Professors Stenzler and Weber in the first volume of the
Indische Studien.
THE SMRITIS. 81
those Dharmasutras which still form part of the body of Sutras
studied by a Charana 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 Dharmasastras, may be divided
into —
1. Metrical redactions of Dharmasutras and fragments of such
redactions.
2. Secondary redactions of metrical Dharmasastras.
3. Metrical versions of Grihyasutras.
4. Forgeries of the Hindu sectarians.
As regards the Dharmasutras, it will be necessary to point
out some of the most important facts connected with the history
of the ancient civilisation 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 Brahminical 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
acharya, the sacred texts of his Sakha 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 Vidyadhyayana, 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 one generation of
pupils and teachers to another. We still possess long hsts
which give the names of those acharyas who successively taught
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 vyuha, which gives a list of these schools
or Charanas, the Brahmans who studied the Samaveda were
divided into not less than a thousand such sections.
32 HINDU LAW.
The establishment of these schools, of course, necessitated the
invention of a method of instruction and the production of manuals
for the various branches of science. For this purpose the teachers
composed Sutras, or strings of rules, which gave the essence of
their teaching. In the older times these Sutras 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. Few 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 Sutras are, however, mostly interspered 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
Sutras. They, originally, probably, embraced all the Angas of
the Veda, and we can still prove that they certainly taught
phonetics, the performance of sacrifices, and the Dharma or
duties of life. We possess still a few Pratisakhyas, which treat
of phonetics, a not inconsiderable number of Srauta and
Grihyasutras, and a smaller collection of Dharmasutras. Three
amongst the latter, the Sutras of Apastamba, of Satyashadha
Hiranyakesin, and of Baudhayana, still form' part of the body
of Sutras of their respective schools.
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 Sutras of the former school are divided into thirty Prasnas
or sections, among which the twenty-eighth and twenty-ninth are
devoted to Dharma (k). In the case of the Hiranyakesi-Sutras,
the twenty-sixth, and twenty-seventh of its thirty-five Prasnas
contain the rules on Dharma. As no complete collection of the
Sutras of the Baudhayana school is as yet accessible, it is
impossible to determine the exact position of its Dharmasutra (l).
All these three books belong to schools which study the Black
(fe) Compare Burnell Indian Antiquary I., pp. 5-6; Sacred Books of the
East, vol. II., pp. 11-15.
(I) The Baudhayana Dharmasutra seems to have suffered by the discon-
nection 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.
THE SMRITIS. 83
Yajurveda. The first and second agree nearly word for word with
each other. Among the remaining Dharmasutras, those of
Gautama and Vasishtha stand alone, being apparently uncon-
nected with any Vedic school. But in the case of the Gautama
Dharmasutra 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 internal
evidence, and it is highly probable that, among the adherents of
the Samaveda, one or perhaps several schools of Gautamas existed,
which also possessed Srautasutras. The obvious inference is that:
our Gautama Dharmasutra formed part of the Kalpa of one of
these sections of Samavedis (m). In the case of the Vasishtha
Dharmasutra it is clear from the passage of Govindasvamin,
referred to above, that it originally belonged to a school of
Kigvedis (n). 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 after an accidental mutilation of the
ancient MSS. (o), while Gautama has probably suffered very
little (p).
As regards another Dharmasutra, the so-called Vishnusmriti,
which formerly was considered to be a modem recension of a
Vishnusutra, further investigations have shown that it is a some-
what modified version of the Dharmasutra 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
Sastris at Benares (q). The recovery of the Kathaka Grihyasutra
in Kasmir, ' and a careful comparison of its rules with those of
the Vishnusmriti, as well as of the mantras or sacred formulas
(m) For the details of the arguments which bear on this question, see Sacred
Books of the East II., XLI.— IX.
(n) Sacred Books, II,, XLIX. The older theory that the work belonged
to the Samaveda is, of course, erroneous.
(o) Sacred Books, XIV. Introduction to Dr. Biihler's translation of the
Vasishtha Dharmasastra.
(p) Sacred Books, II., LIV.
iq) Journ. Bo. Br. Koy. As. Soc. XII., p. 36 (Supplement, Eeport on
Kasmir).
H.L. 3
34 HINDU LAW.
prescribed in the Smriti, with the text of the Kathaka recension
of the Yajurveda, and with those given by Devapala, the com-
mentator of the Grihyasutra, leave no doubt as to the correctness
of the tradition preserved by the Pandits (r). It is now certain
that the Vishnusmriti on the whole faithfully represents the
teaching of the Katha school on dharma, the sacred law. The
portions which have been added by the later editor, who wished
to enhance the authoritativeness of the work by vindicating a
sacred character to Vishnu, are the 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 (s).
There are finally the Kanvayana, Kasyapa and Budha Dharma-
sastras, small treatises in sutras or aphorisms, which refer to
portions only of the sacred law. By their style and form they
undoubtedly belong to the Dharmasutras. But it would seem that
they are extracts from, or fragments of, larger works. In the case
of the Usanas Dharmasastra this is certain, as we meet in the
medieval compilations on law with numerous quotations from
the Usanas Sutras, which refer to other topics than those treated
in the chapters now extant. It is, however, not clear to what
Veda or school these books originally belonged.
As may be seen from the translations of the five Dharmasutras,
pubHshed in Vols. II., VII., and XIV. of Professor M. Miiller's
Sacred Books of the East, these works treat the Dharma much
in the same manner as the metrical law books — for example, those
of Manu and Yajnavalkya. But they are not, like some com-
pilations of the latter class, divided into sections on achara, " the
rules of conduct," vyavahara, ** civil and criminal law," and
prayaschitta, "penances." They divide the sacred law into
varnadharma, "the law of castes," asramadharma, "the law
of orders," vamasramadharma, "the law of the orders of
particular castes," gunadharma, "the law of persons endowed
with peculiar qualities " (for example, kings), nimittadharma,
" the law of particular occasions " (penances), and so forth,
exactly in the manner described by Vijnanesvara in the beginning
of the Mitakshara (t).
(r) See Jolly, Das Dharmasutra des Vishnu and das Kathakagrihyasutra,
and Sacred Books VII., X.— XIH.
(s) Sacred Books VII., XXIX.— XXXI.
(t) Mitakshara I. A. 7.
THE SMRITIS. 35
The order in which the several topics follow each other is, how-
ever, not always the same.
The materials out of which the Dharmasutras have been
constructed are, besides the opinions of the individual authors,
passages from the Vedas quoted in confirmation of the doctrines
advanced, rules given by other teachers which are also considered
authoritative or are controverted, and maxims which were
generally received by the Brahminical community. These maxims
contain that which had been settled by samaya, the agreement
of those learned in the law (dharmajna). Hence the Dharmasutras
are also called Samayacharika Sutras — that is, aphorisms referring
to the rule of conduct settled by the agreement (of the Sishtas).
The passages, containing such generally approved maxims, are
frequently in verse, and introduced by the phrase athapyu-
daharanti, ** now they quote also. " Numerous verses of this kind
recur in nearly all the Dharmasutras. All the Sutras, with the
exception of those attributed to Gautama, Budha and Kanvayana,
which are written throughout in prose, are, besides, interspersed
with other slokas or gathas, as they are sometimes called, which
partly are attributed to schools or individual authors, such as the
Bhallavins, Harita, Yama, Prajapati, Manu and others, and
partly have been inserted by the writers of the Sutras 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 Dharmasutras, but also in the Grihya and Srauta Sutras,
nay, even in the Brahmana portions of the Veda, where several
of the verses, read in the Dharmasutras, 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 Dharmasutras, they are mostly each
as old as the school to which they belong, and consequently
possess a very considerable antiquity. The existence of Dharma-
sutras is expressly testified by Patanjali, the author of the famous
commentary on Panini, who wrote in the second century B.C. (v).
As Yaska, the author of the Nirukta, who belongs to a much
remoter age than Patanjali, quotes a number of rules on the civil
law in the Sutra style, it may be inferred that Dharmasutras
iv) Weber, Indische Studien I., 143; XIV., 458. Mahabhashya (ed.
Kielhorn) I. 115 and I. 5, where Sutras on permitted and forbidden good are
quoted.
36 HINDU LAW.
existed in his time too (w). But, of course, this does not prove
anything for the age of the particular Dharmasutras which have
come down to us. Kegarding them we learn from the Brahminical
tradition, which in this case is confirmed by other evidence (x),
that among the three Sutras connected with the Taittiriya Veda,
Baudhayana is older than Apastamba and Hiranyakesin Satyas-
hadha. 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 work, is clearly a recast of the latter. Further,
the quotations from Gautama and the unacknowledged appropria-
tion of several lengthy passages of Gautama, which occur in the
Sutras of Baudhayana and Vasishtha, show that Gautama is
older than both, and, in fact, the oldest Dharmasutra which we
possess {y). As regards the absolute determination of the age of
the existing Sutras, 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. (z). The Apastambasutras on
sacrifices, together with a commentary, are quoted in Bhartrihari's
gloss on the Mahabhashya, which, as Professor Max Miiller has
discovered, was composed in the seventh century a.d. (a). 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 cannot be
younger than the fifth century B.C. (h). If that is so, 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 Dharmasutras, those of Gautama,
Baudhayana, 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 Punjab, the original seat of
the ancient Katha school, and no doubt, dates from very remote
(w) Yaska, Nirukta I., 3.
(x) Sacred Books II., XXII.— XXIV.
(y) Sacred Books II., XLIX.— LIV.
(z) Sacred Books II., XXXIII.
(a) MS. Chambers, 553, fol. 106. (Berlin Collection).
(h) Sacred Books VII., XIV.— XV.
THE SMRITIS. '37
times (c). The existing recension, the Vishnu Smriti, cannot be
older than the third century a.d. For in chapter 78, 1 — 7, the
weekdays are enumerated, and the Thursday is called Jaiva — that
is, the day of Jiva. Jiva is the usual Sanskrit corruption of the
Greek Zcv?, or rather of its modern pronunciation Zefs (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 (d).
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 difficult 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 Dharmasutras 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 to which the medieval compilators frequently refer. About
Manu more will be said below. As regards Harita there is a long
passage in prose, attributed to him by Baudhayana and by
Apastamba (e), which looks like a verbal quotation, while
Vasishtha 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 Dharmasutra, given
by the Benares commentator of Vasishtha (XXIV., 6), indicates
that the particular school to which he belonged was that of the
Maitrayaniyas.
As regards the third work, the Dharmasastra 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 Vriddha
Sankha, consisting of eighteen chapters, which treat of the rule
of conduct (achara) and penances (prayaschitta). The whole work
is written in verse, with the exception of two chapters, the twelfth
(c) Sacred Books VII., XIV.— XV.
(d) Sacred Books VII., XXIX., XXXII.
(e) Apastamba I., 10, 29, 13-14.
OO HINDU LAW.
and thirteenth, where prose and verse are mixed. A comparison
of the passages from the Sankha Smriti, quoted by Vijnanesvara
in the Prayaschittakanda of the Mitakshara, with the corre-
sponding chapters of the existing Brihat Sankha, shows that the
latter contains nearly all the verses of the work which Vijnanesvara
had before him, while the Sutras have either been left out, or
in a few instances, have been changed into verses (/). As at the
same time our Brihat Sankha does not contain anything on civil
law which, according to the quotations in the Mitakshara 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 great interest, as it clearly shows how
the metrical law-books arose out of the Sutras. In the classifi-
cation of the Smritis, a place intermediate between the Dharma-
sutras 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 Dharmasutras have been assigned, we may
place the works, now attributed to Manu and to Yajnavalkya,
and perhaps those of Parasara and Samvarta, as well as the
fragments of Narada and Brihaspati. The first two among these
works begin, like many other metrical Smritis, with an intro-
duction, 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 Eishis. In the case of the
Manu Smriti this exordium has been excessively lengthened by
the introduction of philosophical 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
Yajnavalkya Smriti the Eishis in the last verses are made to
praise the rules promulgated by the Yogin. This kind of intro-
duction which the metrical Smritis have in common with the
Puranas, Mahatmyas, the sectarian Upanishads and the forged
astronomical Siddhantas, 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
(/) The verses identified are Vijnanesvara on Yajn. III. 260 = B. S. XVII.
lb— 3b; on Yajn III. 293 = B. S. XVII. 466— 47a, 48b— 49a and 50b— 51a;
on Yajn III. 294 = B. S. XVII. 43a, 37b, 38a, 39a; on Yajn. III. 309 = B. S.
XII. 7—9.
THE SMRITIS. 39
comparatively recent composition. For most of the works, in
which it occurs, have been proved to be of modern origin, or to
have been remodelled in modem times.
Another reason to show that the metrical Dharmasastras are
of modern date has been brought forward by Professor Max
Miiller (g). He contends that the use of the Indian heroic metre,
the Anushtubh sloka, in which they are written, belongs to the
age which followed the latest times of the Vedio age, the Sutra
period. Professor Goldstiicker has since shown (h) that works
written throughout in slokas existed at a much earlier period than
Professor Miiller supposed; in fact, long before the year 200 B.C.,
which Professor Miiller 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 Sutras
may have gone on at the same time, nevertheless, it appears that
in almost every branch of Hindu 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 grammar, the
Samgraha of Vyadi, which consisted of one hundred thousand
slokas, is certainly older than the Sutras of Vopadeva, Malayagira
and Hemaohandra, authors who flourished in the twelfth
century a.d. But we know that in its turn it was preceded by
the works of Sakatayana, Panini and others who composed Sutras.
In like manner the numerous Karikas on philosophy are younger
than the Sutras of the schools to which they belong, just as the
Samgrahas, Pradipas and Parisishtas are mostly of more recent
date than the Sutras on Srauta and Grihya sacrifices, which they
illustrate and supplement. For all we know, the Grihyasamgraha
of Gobhilaputra, or the Karmapradipa of Kadyayana may be
older than the Grihyasutras of Paraskara or Asvalayana, but both
are of later date than the Grihyasutra of Gobhila which they
explain, and the Pradipa is younger than the writings of Vasishtha,
the founder of the Vasishtha school of Samavedis, whose
Sraddhakalpa it quotes. It short, we never find a metrical book
at the head of a series of scientific works, but always a Sutra,
though, at the same time, the introduction of metrical handbooks
did not put a stop to the composition of Sutras (i). If we apply
(g) Hist. Anc. Lit., p. 68.
(h) Manavakalpasutra, p. 78.
(i) The most modern Sutra of which I know is a grammar of the Kasmirian
language in Sanskrit aphorisms, which in 1876 was not quite finished. — G. B.
40 HINDU LAW.
these results to the Smritis, it would seem probable that Dharma-
sastras, like those ascribed to Manu and Yajnavalkya, are
younger than the Sutras of the schools to which they belong,
though, in their turn, they might be older than the Sutra works
of other schools.
The opinion that the metrical Smritis are versifications of older
Sutra may be supported by some other general reasons. Firstly,
if we take off the above-mentioned introductions, the contents
of the metrical Dharmasastras, entirely agree with those of the
Dharmasutras, while the arrangement of the subject-matter differs
only slightly, not more than the Dharmasutras differ among
themselves. Secondly, the language of the metrical Dharma-
sastras and of the Sutras 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 gathas given
in the Dharmasutras, and some in a modified more modem
form. Instances of the former kind are very numerous. A
comparison of the gathas from Vasishtha, Baudhayana and
Apastamba with the Manu Smriti shows that a considerable
number of the former has been incorporated 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., 114-115, containing the advice given by Vidya, the
personification of sacred learning, to a Brahman regarding the
choice of his pupils, which is clearly an adaptation of the Trishtubh
verses, found in Nirukta 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
peculiarities of the Sutra style are, also, found in the metrical
Smritis, affords a strong presumption that the latter draw their
origin from the former. As the great object of Sutra 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 fundamental 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 pecu-
liarly pregnant sense, which is unknown in the common language.
All these peculiarities occur in the metrical Smritis also. Every-
I
THE SMRITIS. 41
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 Mitakshara, moreover, will
remember how considerable the additions are which Vijnanesvara
is obliged to make in order to render Yajnavalkya 's rules
intelligible. This cramped and crabbed style of the metrical
Smritis finds an easy explanation if their derivation from the
Sutras is admitted. Without such a supposition it is difficult 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
Yajnavalkya Smriti repeatedly are intended to include something
that is known from other sources, but not specially mentioned
in the text. Thus Yajnavalkya II., 135, 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 explanations of the Mitakshara, that the
daughter's son must be inserted after the daughter (k). Similar
eccentricities of language occur frequently in the Sutras where
"the saving of half 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 Yajnavalkya, further corroborate the views expressed
above. As regards Manu, Professor Max Miiller (I) conjectured
as long ago as 1849 that the existing Smriti, attributed to the
son of Brahman Svayambhu, was a modem redaction of a lost
Dharmasutra, belonging to the Manava school, a subdivision of
the Maitrayaniyas (m), who study a peculiar version of the
Yajurveda. One portion of this conjecture has been fully con-
firmed. Owing to the discovery of trustworthy MSS. of the
Visishtha Dharmasutra, it is now possible to assert with
confidence that Vasishtha IV., 5 — 8, quotes a Manavam — that is,
(k) Stokes's H. L. B., p. 441. For similar cases, see the Sanskrit text of
the Mitakshara, 16, 12; 26 a 1 and passim.
(l) Letter to Mr. Morley, Sacred Books II., p. 9.
(m) See L. von Schroeder's edition of the Maitrayani Samhita.
42 HINDU LAW.
a work proclaimed by Manu, which was written, like most of the
Dharmasutras, partly in prose and partly in verse. In the note
of the translation on the above passage (n) it has been pointed
out that Vasishtha gives two Sutras (5 and 8) and two verses
(6 — 7) taken from a Manava Dharmasutra. At the end of the
first Sutra the unmistakeable words iti manavam, " 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 ahimsa 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 ordinary
sense of the word). This discovery furnishes a firm basis for
Professor Miiller's opinion that the existing Manu Smriti is based
on a Dharmasutra, and makes it a good deal more than an
ingenious speculation. The other half of his proposition that the
Manava Dharmasutra, on which the metrical Smriti is based,
originally belonged to the school of the Manavas, can, as yet,
not be proved with equal certainty. For, though the Srautasutra
and the Grihyasutra of the Manavas have been recovered, and
though these works are distinctly ascribed by the tradition of
the school to a human teacher, called Manu or Manava (o), the
Dharmasutra has not yet been recovered, and no clear proof has
been furnished that the teaching of the Manu Smriti regarding
the ritual closely agrees with that of the Sutras of the Manava
school. Nevertheless, Professor Miiller's suggestion seems very
probable. On the question when the Manava Dharmasutra 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 the ninth century a.d.,
the text has not undergone any great change. But the earliest
quotation from a metrical Manusmriti which occurs in the
Brihatsamhita of Varahamihira (died 580 a.d.) differs very con-
siderably from the text known to us (p). It would, however,
be dangerous to infer from this fact that the existing metrical
law book dated from a later time than Varahimira, because.
(n) Sacred Books XIV., p. 26.
(o) Both forms occur in the commentary on the Grihyasutra, which probably
belongs, like that of the Srautasutra, to the ancient Mimansaka, Kumarila.
(p) Kern, Brihatsamhita, p. 43.
THE SMRITIS. 4S
firstly, several metrical works ascribed to Manu Svayambhuva
or to his pupils seem to have existed, and, because inscriptions
of the fourth century a.d., when speaking of the Smritis,
invariably place Manu first (q), and thereby indicate the existence
of a law book which possessed greater or more general authorita-
tiveness than would belong to a simple school book studied and
reverenced by the title Manava Charana alone.
In the case of the Yajnavalkya Smriti, it is possible to determine
with perfect exactness the Vedic school to which its original
belonged. But, hitherto, no trace of the actual existence of the
Dharmasutra has been found. As regards the former point,
Yajnavalkya is known to have been the founder of the school of
the Vajasaneyins, who studj^ the White Yajurveda. In the
Smriti III., 110, it is expressly stated that its author is the same
Yajnavalkya, to whom the Sun revealed the Aranyaka — that is,
the Brihadaranyaka, which forms part of the Brahmana of the
Vajaneyins, the Satapatha. On account of this assertion, and
because a number of the Mantras or sacred formulas, the use
of which is prescribed in the Yajnavalkya Smriti for various
rites (r), have been taken from the Vajasaneyi-Samhita 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 Vajasaneyi- Sakha was studied. Possibly the lost Sutra may
even have been composed by the founder of the Vajasaneyi-
Charana himself.
As regards the Parsara and Samvarta Smritis and the fragments
of Brihaspati and Narada, it is, at present, not possible to say
to what Vedas or schools they or their originals belonged. But
a verse of Brihaspati which Nandapandita quotes in elucidation
of Vishnu IV. 9, shows that the metrical law book ascribed to
the Guru of the gods, probably was written within the last
sixteen or seventeen hundred years.
iq) See, for example, the description of Maharaja Dronasimha on the plates
of Dhruvasena I. of Valhabi, dated 207 and 216; Indian Antiquary IV. 106,
V. 205.
(r) See, for example, Yajn. I. 229 = Vaj. Samh. VII. 34; Yajn. I. 231 = Vaj.
Samh. XIX. 70; Yajn. I. 238 = Vaj. Samh. XIII. 27. It is a general maxim
that the Mantras, used for daily and occasional rites, must 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.
44 HINDU LAW.
In the passage quoted there, Brihaspati gives an accurate
definition of a gold dinar a. It has been pointed out long ago (s)
that the occurrence of the word dinara, 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 belong to a remote antiquity.
Oolden denarii were first coined at Eome in 207 B.C., and the
oldest Indian pieces corresponding in weight to the Eoman gold
denarius, which are known are those of the Indo- Scythian kings (t),
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 dinaras, 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
Katyayana, from which Nandapandita quotes (loc. cit.), also a
verse, defining the value of the dinara and to the fragment of
Narada which treats of civil and criminal law. With respect to
the latter work, it must, however, be noted that the vulgata,
which has been translated by Professor J. Jolly (u), does not
contain the verse giving the definition of the term dinara, while
another recension of the same work which is accompanied by the
commentary of Asahaya, re-arranged by one Kalyanabhatta, has
it (w). Asahaya 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 Balambhatta 's commentary on
Mitakshara I., 7, 13, where the opinion of Asahaya, Medhatithi
and others is contrasted with the view of Bharuchi, it is stated
that Asahaya, literally "the Peerless," is an epithet of
Medhatithi. Colebrooke, however, doubts the correctness of
Balambhatta 's statement, because he found the word Asahaya
used as a proper name in the Vivadaratnakara. His doubts are
confirmed by the circumstance that in other digests, too (x),
Asahaya is mentioned as an individual writer, and that Kalyana-
bhatta.says nothing about the identity of Asahaya and Medhatithi,
(s) See, for example, Max Miiller, Hist. Anc. Sansk. Lit., p. 245.
(t) E. Thomas, Jainism, p. 71 seqq.
(v) The Institutes of Narada, translated by J. Jolly, London, Triibner, 1876.
(w) Sacred Books VII., p. 25, and Eeport on Sansk. MSS. for 1874-75.
{x) For example, in Varadaraja's Vyavaharanirnaya, p. 38 (Burnell).
THE SMRITIS. 45
but evidently takes the former for a separate individual. As in
the passage of the Mitakshara, quoted above, Asahaya stands
before Medhatithi, 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
Medhatithi, who probably wrote in the eighth or ninth century a.d.
Under these circumstances it must be conceded that the version
of Narada's Institutes accompanied by Asahaya's commentary
has greater weight than the vulgata and that the definition of
the term dinara belongs to the original. Hence it would appear
that the Narada 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 {y) that the Narada Smriti is not later than the fourth or
fifth century of our era. To the same conclusion points also the
circumstance that the prose introduction, prefixed to the vulgata
of the Narada Smriti {z), which gives a clearly erroneous and
mythical account of the origin of the work, belongs to the com-
mentary of Asahaya. The tradition, given there, asserts that
the Narada Smriti is a recast of Sumati's abridgment of the
original Manu Smriti. But a comparison of the doctrines of
Narada with those of Manu shows that the connection between
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 Narada 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 determine the Vedic school to which the Narada
Smriti belongs.
Among the lost metrical Smritis, that ascribed to Laugakshi,
was possibly based on the Kathaka Dharmasutra. For, according
iy) Institutes of Narada, p. 19.
(,z) Ibid., pp. 1 — 3.
(a) Ibid., pp. 13—18.
46 HINDU LAW.
to the tradition of the Kasmirians, Laugakshi was the name of the
author who composed the Sutras of the Katha school.
The Smritis which may be placed under the second head, that
of secondary redactions of metrical Dharmasastras, may be sub-
divided 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, Prajapati, Yama, Likhita, Vyaghra-
pada, Vyasa, Sankha, Sankha-Likhita and Vriddha Satatapa. All
these works are very small 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
commentators, such as Vijnanesvara, 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, which
Vijnanesvara and other old Nibandhakaras knew, because many
verses quoted from the latter are not traceable in them. In the
case of the Vriddha Satatapasmriti, the author himself states in
the beginning (si. 1) that he gives only so much of the ancient
work " as is required to understand 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 proclaimed by Suvrata (Suvrataprokta Samhita).
Though it is divided, like the original Parasara, into twelve
chapters, it contains 3,300 slokas against the 581 or 592 of 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, men-
tioned 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 Sastras, has proclaimed this work for the
welfare of mankind."
The fourth division, that of the versified Grihyasutras, includes
the two Asvalayanas, the so-called Brihat Saunaka, or Saunakiya
Karika, and the fragments of Sakala and Sankhayana. Both the
Asvalayana Dharmasastras are simply metrical paraphrases of the
Asvalayana Grihyasutra, and the Brihat Asvalayana is dis-
tinguished only by the peculiarity that it contains the same matter
twice, " for the sake of the slow-minded," together with some
verses on Kajaniti, on " polity." The Brihat Saunaka is particu-
THE SMRITIS. 47
larly interesting, not only bfecause it seems to be the last remnant
of the Smarta writings of that famous teacher of the Eigveda,
but also because it apparently has been remodelled by a Vaishnava
of the sect of Kamanuja, 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 negligence and want
of critical discernment shown by Hindu writes, that Nilakantha
in the Vyavahara Mayukha treats the Brihat Saunaka as a genuine
production of the old Acharya.
The fifth class, or that containing the forgeries, is unfortunately
of not small extent. The Vaishnavas seem to have been most
unscrupulous in using old names in order to give weight to their
doctrines. They have produced the Brihat Harita, two Vasishtha
Smritis, a Sandilya and the Laghu Vishnu. These books represent
various shades of the Vaishnava creed. Some are extremely
violent in their diatribes against other sects, and teach practices
and doctrines which would have astonished the ancient Kishis
whose names they appropriated, while others are more moderate
and conform more to the Smarta practices. The most extreme are
the Brihat Harita 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 Smarta
works only by occasionally inculcating the worship and pre-emi-
nence 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
Usanas 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 attributed
to Visvamitra and Bharadvaja are modern fabrications, or versi-
fications of older Sutras. In the case of Bharadvaja there is some
foundation for the latter opinion, as a great portion of the Sutras
of a Bharadvaja 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 other branches
48 HINDU LAW.
of Hindu literature. 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 Sakhas studied by the various Vedic schools, or can be shown
to have belonged to such collections. Thus the Aitareya and
Kaushitaki Upanishads are incorporated in the Sakhas of the
Eigveda which bear these names. The Taittiriya, the Varuni
and other Upanishads still form part of the Taittiriya Sakha, the
Maitrayani of the Maitrayana Sakha, the Brihadaranyaka of the
Madhyandina and Kanva Sakhas of the White Yajurveda. Again,
the names and contents of such works as the Bashkala and Jabala
Upanishads show that they belonged to extinct Sakhas of the
Eig 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 adherents of the philo-
sophical schools, and lastly, the fabrications of sectarians,
Vaishnavas, Saivas, Ganapatas and so forth. While the first
classes of Upanishads are written 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
connection between the prose and the metrical treatises can be
clearly traced. In all this the analogy to the Smriti literature
is obvious, and in the case of the Upanishads, too, the truth of
our fundamental position is apparent — ^namely, that the fountain
of intellectual life in India and of Sanskrit literature is to be
found in the Brahminical 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 demon-
strated, though not with equal certainty, because the oldest works,
in those branches of 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 which they must
be held, is obvious. The older still existing Smritis, and the
originals of the rest, are not codes, but 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 particu-
larly interesting and important. It is, therefore, inappropriate
to call the Smritis " codes of law," and unreasonable to charge
THE SMRITIS. 49
their authors with a want of precision of discrimination between
moral and legal maxims, &c. (6). Such strictures would only be
(6) In the ancient societies in their earlier stages there was no such thing,
as systematic legislation on a utilitarian basis. The civic or national con-
sciousness 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 members 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 ancestors, 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
inventiveness 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 Home, 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 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 level 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 standpoint,
seems incongruous, otiose, or unmeaning. Amongst the Greeks and Bomans,
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 priests, as of
Levites or of Brahmans, could alone pronounce on the most 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. [Wachsmuth Hist. Ant. of Gr.,
Chap. V. § 39.] 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 Bomans as the Brahmanic law is special to Hindus. Bights as
existing beyond the pale of the religious connexion are hardly recognised
except by a faint analogy. The Smritis, therefore, and the mental evolution
which they embody may be regarded as a most natural product of the human
H.L. 4
50 HINDU LAW.
justified if the Smritis were really " codes " intended from the
first to settle the law between man and man. At the same time
it will appear that the statement of the modern Nibandhakaras
and commentators that the various Smritis are intended to
supplement each other is, at least to a certain extent, correct.
As none of the Smritis is complete 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 to use them indiscriminately, 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 supplementary 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 Dharma-
sastras, 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.
VEDAS.
11. The Vedas. — The fountain-head of the whole law is
according to the Hindus, the Veda, or Sruti. By t-he latter term
they understand the four Vedas, the Eik, Yajus, Saman and
Atharvan in all their numerous Sakhas or recensions, all of which
they believe to be eternal and inspired. Each Veda consists of
two chief portions, the Mantras and the Brahmanas. 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 speculations
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
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 precepts has its analogue even in 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.
THE DRAVIDA SCHOOL. 61
connected with all sections of the law are found. The authors
of the Dharmasutras frequently cite such passages as their
authorities. But it is a remarkable fact that they by no means
agree regarding their applicability (c). For the practical 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 Hindu law.
(II.) The Dravida School.
The Dravida School prevails in the whole of the Southern
portion of India, which is divided into Dravida proper where Tamil
is spoken, Kamataka where the Kamataka language is spoken, and
Andra where Telugu or Telinga is the spoken language. The
Mitakshara, the Madhaviya, the Sarasvati Vilasa, the Varadarajya,
and Smriti Chandrika are the recognised authorities (d) in the
order mentioned. The Varadarajya is, however, an authority in
the Dravida division only, and Smriti Chandrika being an
authority in the Andra division comes before the Sarasvati Vilasa.
1. The Mitakshara — already dealt with.
2. The Madhaviya of Vidyaranyasvami is a comment on the
Parasara Smriti, and was written in the middle of the fourteenth
century. The author was the virtual founder of the Vidyanagara
Kingdom, and his work became the standard of its law as well
as being of some authority in the Benares School.
3. The Sarasvati Vilasa (e). The author, Pratapa Ruda Deva,
was a prince of the house of Kakateya, which reigned in Warangal
in the fourteenth century. It is a general digest, and the customs,
particularly those regarding the land tenures in the Andra country,
are based upon it.
4. The Varadarajya or Vyavahara Nimaya (/). The author,
Varadaraja, was bom in the province of Arcot towards the end
of the sixteenth or the beginning of the seventeenth century. It
is a digest, and is based upon the Narada Smriti.
5. Smriti Chandrika. Its author, Devanand Bhatta, is said to
(c) Sacred Books II., p. 20.
(d) Morley's Digest, Introduction, p. CCXII.
(e) Translated by Kev. Mr. Foulkes.
(/) Ramnad Adoption Suit, 12 M. I. A. 437.
62 HINDU LAW.
have been bom in the South of India in the twelfth century (g).
It is supposed to be the basis on which the Madhaviya was formed.
(III.) The Benares School.
The Benares School is an authority in the city and the
province of Benares, Middle India and Orissa, extending from
Midnapur to the mouth of the Hoogly and thence to Cicacole.
The works of authority are the Mitakshara, the Viramitrodaya,
the Madhaviya, the Vivada Tandava, and the Nirnaya Sindhu,
of which the first, second, third and fifth have already been
mentioned in the preceding pages. The author of the Vivada
Tandava, Kamalakara, was the brother of Dinkara Bhatta and
son of Eam Krishna Bhatta. He is opposed to the doctrine of
the Bengal School and supports the view of Vijnanesvara.
(IV.) The Mithila School.
The doctrines of the Mithila School are in force in Tirhoot
and Northern Behar, the ancient Kingdom of Mithila. The Mitak-
shara, the Vivada Eatnakara, the Vivada Chintamani, the
Vyavahara Chintamani, the Dwaita Parisishta, the Vivada
Chandra, the Smriti Sara, the Samuchchaya, and the Madana
Parijata are well-known authorities in this province.
1. The Mitakshara.
2. Vivada Eatnakara (h). It is a digest of great authority. It
was compiled in the beginning of the fourteenth century under
the superintendence of Chandeswara, minister of Hara Sinha
Deva, king of Mithila.
3 and 4. The Vivada Chintamani (i) and the Vyavahara
Chintamani were written by Vachaspati Misra, who flourished
in Semaul in Tirhoot in the beginning of the fifteenth century.
These are of the highest authority in this part- of India.
5. The Dwaita Parisishta. It is a general treatise, and its
author is Kesava Misra.
6. The Vivada Chandra (fc). Its author, a lady named
Lachmidevi, wrote in the name of her nephew Misaru Misra, and
ig) Saravadhikari's Hindu Law of Inheritance, 1880, pp. 387-9.
(h) Translated by Golabchandra Sarkar Sastri.
(t) Rutcheputty v. Rajunder, (1839) 2 M. I. A. 134, 146; translated by
Prosono Koomar Tagore.
(k) Rutcheputty v. Rajunder, (1839) 2 M. I. A. 147.
THE GANRIYA SCHOOL. 58
took the title of her work from Chandra Sinha, the grandson of
Hara Sinha Deva, king of Mithila.
7. The Smriti Sara Samuchchaya. Its author, Sri Dhar
Acharya, was a priest of the Dravir tribe. It is a treatise on
rehgious duties, and the questions on civil duty are only inci-
dentally introduced.
8. The Smriti Samuchchaya is a short work, and is known
amongst the Mahrattas.
9. The Madana Parijata. It is a treatise on civil duties. Its
author, Visweswara Bhatta, derived its name from Madana Pala,
a prince of the Jat race, who reigned at Diah in the twelfth
century. This work is sometimes quoted in the name of Madana
Pala.
(V.) The Gauriya or Bengal School.
The Gauriya or Bengal School holds its sway among the
Bengali-speaking Hindus. It is a patriarchal system and differs
in essential particulars from the Mitakshara. It appears that the
teachings of Gautama bore fruit amongst the enlightened people
of this part of India, from where Hindu law moulded the lives
of peoples inhabiting diverse climes such as Burma and Nepaul. It
asserted itself with renewed vigour in the fifteenth century, when
JimutaVahana wrote his famous Daya Bhaga, when the forcible
contact with another patriarchal system of law — the Moslem —
was felt. The following are the books of authority in this School
of law.
1. The Dharma Eatna. Its author, Jimuta Vahana, is prac-
tically the founder of the Gauriya School and flourished in the
fifteenth century (I). The work itself is a digest, and the chapter
on inheritance, the celebrated Daya Bhaga (m), is the standard
authority, and is opposed to Mitakshara on almost every disputed
point.
2. The earliest commentary on the Daya Bhaga is that of
Srinath Acharya Chudamani, which is a general exposition of
the text (n). That by Sri Krishna Tarkalankara, who also wrote
the Daya Krama Sangratha (o), is the most celebrated of all
treatises explaining the text of the Daya Bhaga.
(l) Saravadhikari's Tagore Lect,, VIII.
(m) Translated by Colebrooke.
(n) Colebrooke.
(o) Translated by Mr. Wynch.
54 HINDU LAW.
3. The Smriti Tatwa. Its author, Eaghunandana, flourished
in the beginning of the sixteenth century. He hved in Navadwipa
in Bengal. He is regarded as the greatest authority in Bengal,
and is often referred to as Smarta Bhattacharya or the great
expounder of law. This work covers no fewer than twenty-seven
volumes, and the portion which deals with the law of inheritance
is called the Daya Tatwa and is very highly spoken of.
4, 5 and 6. Vivadamava Setu, Vivada Sararnava and Vivada
Bhangamava. These three were compiled owing to the British
influence. Warren Hastings was responsible for the first. It was
translated into Persian for Mr. Halhed, whose translation into
English is called * * A Code of the Gentoo Laws. ' ' The second
and third owe their existence to the suggestion of Sir. W. Jones,
the last being translated by Mr. Colebrooke.
There are two works of great authority on the law of adoption —
namely, the Dattaka Mimansa by Nanda Pandit, and Dattaka
Chandrika by Devanda Batta (p). The former is an authority
in Mithila and Benares, while the latter is the governing factor
in Bengal and Southern India.
ip) Translated by Sutherland.
BOOK I.
THE LAW OF INHEEITANCE.
L— GENERAL VIEW OF THE HINDU LAW OF
INHERITANCE.
1.— DEFINITION OF THE LAW OF INHEEITANCE.
The Law of Inheritance comprises the rules according to which
property, on the civil or natural death of the owner, devolves
upon other -persons, solely on account of their relation to the
former owner.
Eemarks.
The title of the Hindu Law under which the law of inheritance
falls is the Dayavibhaga — that is, according to the usual trans-
lation, "the division of inheritance." Daya, lit. a "portion,"
is defined by Vijnanesvara as " the wealth (property) which
becomes the property of another solely (a) by reason of his relation
to the owner," and vibhaga, Zit, "division," as " the adjustment
of divers rights regarding the whole by distributing them in
particular portions of the aggregate " (h).
It thus appears that the Dayavibhaga 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
Hindu lawyers were obliged to introduce 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.
The civil death of a person results from his entering a religious
(a) Colebrooke, Mit. Chap. I., sec. I., para. 2.
(b) Ibid., para. 4. See Book II,
66 HINDU LAW. [book I.
order, or being expelled from his caste by means of the ceremony
called Ghatasphota, the smashing of the waterpot (c).
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.
h. The relation of adoptee to the adoptor and his family.
c. Connection by marriage.
d. Spiritual connection.
e. Co-membership of a community or association.
/. Eelationship of a ruler to his subjects.
2._SUBDIVISI0NS OF THE LAW OF INHEEITANCE.
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. EuLES Eegarding the Succession to a Male.
A. To a householder (grihastha) who is a member of an
undivided family (avibhakta).
B. To a temporary student (upakurvana brahmacharin) , to a
separated householder (vibhakta grihastha), and to a united house-
holder in respect of his separate property.
C. To a re-united coparcener (sam^srishtin).
D. To a professed student {naishthika brahmacharin) and to
an ascetic (Yati or Sannyasin).
II. EuLES Eegarding the Succession to Females.
A. To unmarried females.
B. To married females having issue.
C. To childless married females.
III. EuLES Eegarding Persons Excluded from Inheritance.
(c) The Viramitrodaya, /. 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. Bhalchandra Sastri, in Steele's Law of Castes, p. 65, says
that a member of a family who has lost caste, is to receive his share after
expiation, notwithstanding an intermediate partition.
DIVISIONS OF LAW OF INHERITANCE. 57
" Deus facit heredem," 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 the individuals, but for reasons of public
pohcy " (6^).
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 Hindu Law also the heir or the
group of heirs (wills not being contemplated), who in the
undivided family take a succession, continue the person with
which they have already been identified (e). 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 (/) and of creditors
of a father 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 Vijnanesvara construes
the text on the origin of property (Mitakshara, Chap. L, sec. I.,
par. 13). '* Inheritance " as a source of property he conceives
as pointing to a continuation of the legal person by the unob-
structed heir as joint owner. " Partition " he refers to the case
of property descending to obstructed heirs 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. L, sec. I., par. 3, he carefully distinguishes between the
cases of sons, whose the patrimony becomes immediately and
indefeasibly on their birth, and of parents, &c., on whom the
estate devolves only on the death of the owner, and who mean-
(d) L. E. S. I. A., at p. 64.
(e) See Viramit. Trans, p. 2.
(/) Viramit. Trans, pp. 133, 256.
58 HINDU LAW. [BOOK I.
while 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 {g).
The Teutonic laws preferring males to females divided the
allodial holding equally. They distinguished inherited property
from acquisitions and moveables from immoveables: the inheri-
tance 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 Hindu Law of Inheritance, great caution
ought to be exercised in applying any analogy derived from the
former to the solution of questions arising under the latter. The
language of Willes, J., in Juttendromohun Tagore v. Ganen-
dromohun Tagore (h) rests on a principle of general application.
He says: "The questions presented by this case must be dealt
with and decided according to the Hindu law prevailing in Bengal,
to which alone the property in question 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 Hindu
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 Hindu law. The only
trace of religion in the history of the law of succession in England
is the trust (without any beneficial interest) formerly reposed
in the Church to administer personal property : Dyke v.
Walford (i). In the Hindu law of inheritance, on the contrary,
the heir or heirs are selected who are most capable of exercising
those religious rit€s which are considered to be beneficial to the
deceased."
Besting 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
(g) Comp. Viramit. Chap. I., p. 54, Transl. p. 39.
ih) L. E. S. I. A., at p. 64. (t) 5 Moore P. C, 434.
DIVISIONS OF LAW OF INHERITANCE. 69
male which is a novel mode of inheritance inconsistent with the
Hindu law " (fc). 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 possession and enjoyment may be given by will, to
be followed by other interests simultaneously constituted.
Here he follows the English as distinguished from the Eoman
Law.
Special care should be taken not to build on particular ex-
pressions in the English text books. In translating from 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 purpose 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
Eoman law.
"The law of inheritance amongst the Hindus is regulated
generally by the performance of funeral oblations " (1) in this
sense that the duty of performing the obsequies and subsequent
rites being regarded as of paramount importance, the determina-
tion 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 per-
former 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 Jimuta Vahana (m). In other parts (n) of India
the criterion is admitted only partly (o), and the Mitakshara and
the Mayukha 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
(fc) L. R. S. L A., at p. 74.
(I) H. H. Wilson's Works, V., 11 ; Soonrendronath Roy v. Musst. Heeramonee
Burmoneah, 12 M. I. A., at p. 96; Neelkisto Deh Burmono v. Beerchunder
Thakoor, Ibid., at p. 541.
(w) Dayabh., Chap. XI., sec. VI., para. 29, 2.
in) Viramit,, p. 39, Col. Big., Book V. T. 420, Comm.
(o) Ibid. 14.
60 HINDU LAW. [BOOK I.
be looked on as the foundation on which the rules as to succession
on the one hand and as to inheritance on the other really rest (p).
Where there is a connection of blood through males or females,
there is, except in remote cases, a possibility of succession. A
new connection 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 ordinary rights of succession
with which the law of inheritance is concerned, and the accom-
panying duties prescribed by the religious law (q).
The law of inheritance is divided by the Hindus according to
the nature of the rights of heirs, into unobstructed (apratibandha)
succession, and succession liable to obstruction (sapratibandha).
Unobstructed succession comprises the rights of sons, sons' sons,
and their sons, to the inheritance 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-grandsons in the
male line, (2) to a re-united 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 inheri-
tance 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 succession, it seems advisable to desert
it when the Law of Inheritance is treated by itself.
As the descent of property varies under the Hindu law, chiefly
according to the natural and the legal status of the last possessor,
it will be more convenient to divide the rules on this subject
according to the latter principle. " Succession " should there-
fore be first divided into succession to males and to females.
(p) How far this is carried in favour of females by Balambhatta may be seen
from the extracts given in the Tagore Lectures, 1880, Lee. X. Rutcheputty v.
Rajunder, 2 M. I. A. 132; Srimuti Dilecah v. Rony Koona, 4 M. I. A. 292;
Bhyah Ram v. Bhayah Ugar, 13 M. I. A. 373; Thakur Jeohnath v. Court of
Wards, L. E. 2 I. A. 163; Naraini Kuar v. Chandidin, I. L. K. 14 All. 366,
P. C. ; Ram Baran v. Kamala Prasad, I. L. E. 32 All. 694.
(q) 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 community and the king serve to
complete the scheme. See below.
DIVISIONS OF LAW OF INHERITANCE. 61
Hindu males are divided according to their castes into Brahmins,
Kshatriyas, Vaisyas, and Sudras (r). The members of the first
three castes are divided according to the ** orders " (asramas)
into Brahmacharis, " students," Grihasthas, . "householders,"
and Yatis or Sannyasis, "ascetics." The Brahmacharis, again,
are of two kinds, paying or temporary students, Upakurvanas, or
else Naishthikas, "professed students," such as from the first
renounce the world. Grihasthas, householders, also are of three
kinds. They may be avibhakta, members of an undivided family,
vibhakta, " separate," or samsrishtin, " re-united," and lastly
the avibhakta or united householder may be separate, in some
respects — namely, 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
import-ance for the descent of property. In one instance only,
that of the illegitimate son of the Sudra, the old distinction holds
good. Besides the separate property (s) of the united householder,
the property of the Upakurvana Brahmachari, the temporary
student, descends like that of the Vibhakta Grihastha, the divided
householder [t). The principles, at least, applicable to the
succession to Naishthika Brahmacharis, professed students, are
the same as in the case of Sannyasis. 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 Upakurvana Brahmachari, a temporary student, and to
a Vibhakta Grihastha, a separate householder; (3) to a Sansrishti
Grihastha, a re-united householder; (4) to Sannyasis or Yatis,
ascetics, and to Naishthika Brahmacharis, 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 property
may therefore be divided under three heads as above.
(r) Sudras are always considered Grihasthas, as the study of the Veda is
forbidden to them.
(s) There are no particular rules regarding the descent of this kind of pro-
perty. 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., sec. V.; Vyav. May. Chap. TV.,
sec. VII. ; and Book II.
(t) See Mit. Chap. II., sec. VIII., para. 3.
62 HINDU LAW. [BOOK I.
IL— SUCCESSION UNDER THE MITAKSHARA AND
VYAV. MAYUKHA.
§ 1—A. SUCCESSION TO THE PEOPEKTY OF AN
AVIBHAKTA GEIHASTHA.
(1) Sons, Sons' Sons, and their Sons. — The property of a male
member of a united family, Avibhakta Grihastha, descends,
per stirpes, to his sons, son's sons, and son's son's sons,
who were united with the deceased at the time of his death.
See Digest of Vyavasthas, Chap. I., sec. I., Q. 1.
" That under the law of the Mitakshara each son upon his
birth takes a share equal to that of his father in ancestral immov-
able estate is indisputable " (v).
" 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 movables " (w).
The three descendants in the male line take the inheritance
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 daya), and they represent these persons in the
undivided family {x). The ultimate reason for their preference
to other coparceners must be sought in the importance attached
by the Hindu to the continuation of his race, and to the regular
and continuous presentation of the oblation to his manes
(sraddha) (y).
(v) P. C. in Suraj Bunsi Koer v. Sheo Prasad Singh, L. B. 6. I. A. 88, 99;
Bhyah Ram v. Bhyah Ugur, 13 M. I. A. 378.
(w) Mitakshara, Chap. I., sec. 6, para. 3; Viramitrodaya , Tr., p. 68. Nana
Tawker v. Ramachandra Tawk^er, I. L. K. 32 Mad. 377 ; Jagmohandas v.
Nathubhoy, I. L. K. 10 Bom. 628.
(x) Mit., Chap. I., sec. 5 and sec. 1, para. 3 ; Vyav. May. IV., sec. 1, para. 3.
(y) Gains, Lib. II. § 65, points to the importance attached by the Bomans
in early times to the due performance of the sacra and the connection of these
with the inheritance. Compare the remarks at 11 B. H. C. B. 265 [Bhau
Nanaji Utpat v. Sundrahai.']
In § 152 et sqq.. Gains deals with heredes necessarii, sui et necessarii, aut.
extranei. Of the " sui et necessarii " he says § 167 : " Sed sui quidem heredes
ideo appellantur, quia domestici heredes sunt, et vivo quoque parente, quodam
modo domini existimantur. "
Against these joint owners, " Nihil pro herede posse usucapi suis heredibus
existentibus, magis obtinuit. [Cod. Lib. VII., 29; 2.] This passage may
perhaps indicate that the 'sui' formed a fourth class." [Tomkins and
Lemon's Gains, p. 341.] Sons and daughters of the last proprietor or of his
UNDIVIDED FAMILY. 63
Actual birth is necessary to the full constitution of right as
son. The succession is not suspended for one not begotten (z).
See below Book II., Digest of Vyavasthas, Chap. I., sec. 1, Q. 8,
Remark 2.
The rule extending the apratibandha daya to three descendants
conforms to the views of Nilakantha, Balambhatta, Mitramisra,
and of the eastern lawyers {a).
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 [Gaius, Lib. II.
§ 156] and they must have been still within the potestas of the grandfather
at his death.
Paulus in the Digest describes the position of the son inheriting his own,
" suus heres," in a way very analagous to that found in the Hindu treatises.
" In suis heredibus evidentius apparet continuationem domini eo rem perdu-
cere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam
vivo patre quodammodo domini existimantur, unde etiam filiusf amilias appellatur
sicut paterfamilias, sola nota hac adiecta, per quam distinguitur genitor ab eo
qui genitus sit, itaque post mortem patris non hereditatem percipere videntur,
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."
In the Hindu as in the Roman 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
central idea is that of a break of continuity, of a substitution of new relations
and of new rights, individualised or differently aggregated, 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
Hindu notions, a joint family united in domestic worship and in interests, we
see how it is that the Mitakshara, Chap. I., sec. 1, para. 13, says "daya"
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 heirs, 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 pre-
serving its personal and proprietary identity, as in inheritance not subject to
obstruction. It is in this sense and in this only that the Mitakshara [Chap. I.,
sec. 1, paras. 3, 7, 8, 13, 17, and 18] recognises 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 source of property, which the Smriti declares it may be, but
which in ordinary cases Vijnanesvara says it is not.
(z) Koylasnath Doss v. Gyamonee Dossee, C. W. R. for 1864, p. 314, Musstt.
Gowra Chowdhrain v. Chummun Chowdhry, Ibid. 340.
(a) See Vyav. Mayukha Ch. IV., sec. 4; Manu IX. 185; Col. Dig. B. v. T.
396, Comm.
64 HINDU LAW. [BOOK I.
The Mitakshara nowhere mentions the right of the son's son's
son, and its commentator, Visvesvara, states, in the Madana-
parijata, that the vested right to inherit does not extend
further than the grandson (h). Among the authors of the
Dharmasastras a Hke difference of opinion seems to have existed.
But at present the right of the great-grandson may be considered
to be estabhshed, and the Sastris 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 born after the separation (c).
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 partition made immediately on the
death of the propositus. This is brought out most clearly perhaps
in the first Section of the Daya Kramasangraha. It is in general
rather assumed than propounded, as after providing for repre-
sentation of sons by grandsons and great-grandsons, the discus-
sions 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 " (d). And the widow comes first
amongst the heirs on failure of male descendants. She and her
daughter are entitled only to maintenance and residence (e) from
the coparceners (/), or successors to a separate owner (g).
In Chaudhri Ujagar Singh v. Chaudhri Pitam Singh (h) the
(b) Madanaparijata, f. 228, pp. 2, 1, 7 (of Dr. Biihler's MS.). In the
Subodhini, however, commenting on Mitakshara, Chap. I., sec. 1, pi. 3, Visves-
vara Bhatta seems to recognise a representation extending to the great-
grandson, if not even farther.
(c) Mit. Chap. I., sec. 2, paras. 1 and 5; Vyav. May. Chap. IV., sec. 4,
paras. 16, 33, ss. Marudayi v. Doraisami, I. L. R. 30 Mad., 348; Fakirappa v.
Yellappa, I. L. R. 22 Bom., 101.
(d) Rewan Pershad v. Musstt. Radha Beehee, 4. M. I. A. 137.
(e) Parvati v. Kisansing, Bom. H. C. P. J. F. for 1882, p. 183.
(/) Mankoonwur et al. v. Bhugoo et al., 2 Borr. 162.
(g) Ramaji Huree v. Thukoo Baee, Ibid. 497.
(h) L. R. 8 1. A., at p. 196.
UNDIVIDED FAMILY. 65
Privy Council say of a father whose son was a plaintiff on the
ground that by an imposition the father had been allotted but
a quarter instead of a half of an estate, " supposing that 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 could be enforced by a suit or
by a representation to the Government — it does not come within
the rule of the Mitakshara law, which gives 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 in the father to property enforceable by suit
that right would not indeed be sha;*ed 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.,
Partition, § 5 .4.
PRIMOGENITURE.
The ancient Hindu law presents many traces of a once-
subsisting law of primogeniture in this sense that on the father'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 (i). This rule and the
rule of absolute dependence of the junior members was gradually
(i) Manu Chap. IX. 105; Narada Pt. I., Chap. III., 2, 36, 39. The prefer-
ence 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-born son as heir before his uncle, the
former owner's eldest surviving son. [See Manu Chap. IX., 124, 125; the
Eamayana quoted Col. Dig. B. 11, Chap. IV. T. 15, Com.; Ait. Brahm. IV
25, VII. 17, 18 quoted Tagore Lee, 1880, Lee. V.; Ramalakshmi Ammal v.
Sivanantha, 14 M. I. A., at p. 591.] Other texts in some degree favour the son
of the first married wife, though later born, in competition with the earlier
born son of a second or third wife; [Manu Chap. IX. 123, Col. Dig. B. IV.
T. 51 and Com.]; yet this may have originally rested on the taking of wives
in the order of the classes. [Manu Chap. IX. 122, and Kulluka ad loc. ;
Manu III., 4, 12, 13.] Eecourse must be had in practice to the custom of the
family for a rule which cannot be gathered with absolute certainty from the
texts. [^Ramalakshmi Ammal v. Sivanantha Perumal, 14 M. I. A. 570;
Neelkisto Deb Burmono v. Beerchunder Thakoor, 12 M. I. A. 523.] In Jagdish
Bahadur v. Sheo Pertah [L. K. 28 I. A. 100 ; see also Pedda Ramappa v.
Bangari, L. K. 8 I. A. 1 ; Ramasami Kamayya v. Sundralingasami, L. E. 26
I. A. 55] the Judicial Committee decided that priority of birth among
H.L. 5
66 HINDU LAW. [BOOK I.
superseded by the present law of equal joint succession of all
the sons standing in a like legal relation apart from priority of
sons determined the succession irrespective of the status of the mothers,
whether puttabi stri (first-married wife) or not. 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
sought 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. \^Naraganti Acham-
magaru v. Venkatachalapati Nayanivaru, I. L. E. 4 Mad. 250.] In the
Tipperah case [Neelkisto Deh Burmono v. Beerchunder Thakoor, 12 M. I. A.
523] 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 [Katama Natchiar v. The Rajah of Shivaganga, 9 M. I. A., at p. 593]
that the succession to a raj is governed by *' the general Hindu 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. [See Neelkisto Deb
Burmono v. Beerchunder Thakoor, 12 M. I. A., at pp. 540, 541.] However, the
view of the Madras High Court that " when impartible property passes by
survivorship from one line to another, it does not necessarily devolve on the
coparcener nearest in blood, but on the nearest coparcener of the senior line "
was affirmed by the Privy Council in Muttuvadaganadha v. Periasami [L. R. 23
I. A. 28; Kachi Kalinyana v. Kachiyava, L. R. 32 I. A. 261]. The Pittapur
Case [I. L. R. 22 Mad. 382, P. C] laid down that the holder of an impartible
estate was competent to alienate it by gift or will; but this decision is not
regarded by the High Court in India [Nachiappa Chettiar v. Chinnasami
Naicker, I. L. R. 29 Mad. 453 ; Kali Krishna v. Raghunath Deh, I. L. R. 31 Cal.
224; Harpal Singh v. Bishan Singh, 6 A. L. J. 753; Contra, Rajah of Kalahasti
V. Achigadu, I. L. R. 30 Mad. 454; and Zamindar of Karvetnager v. The
Trustee of Tirumalai, I. L. R. 32, Mad. 429, which lay down that there is no
joint estate in moneys due to the holder of the impartible estate during his life-
time] as affecting the question of succession to the estate, and in Indar Sen Singh
V. Harpal Singh [I. L. R. 34 All. 79] the Allahabad High Court held
" that where ancestral property is impartible and is held by a single member of
the family, all the members of the family must be deemed to be joint in estate,
and the rule of succession to the property is the same as that which governs the
case of partible property, so that a junior member of the family, who gets
maintenance from the person holding the impartible estate, succeeds to the
estate by right of survivorship." In the Partapgiri Adoption Suit (P. C.
April 26, 1918) the Judicial Committee seem to approve of this view; though in
the Pittapur Maintenance Suit (P. C. May 2, 1918) it has been held that there
I
UNDIVIDED FAMILY. 67
birth. The nature of the transition may be gathered from the
authorities referred to below (k). See also § 1. B (1).
§ 1. ^. (2) Adopted Sons. — On failure of legitimate issue of
the body, adopted sons inherit. If sons be born to the adopter
after he has adopted a son, the latter inherits a fourth
share (l).
Examples.
1. A, B, C form a united 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^, AS and A.
3. A, B, C form a united family. A adopts AS and a son,
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.
Authorities.
Digest of Vyavasthas, Chap. II., sec. 2, Q. 1, 3, and 15; and
sec. 4, Q. 2.
is no co-parcenary in an impartible estate and consequently no one who cannot
establish his claim by custom is entitled to maintenance. This latter view
appears to be in conflict with the decision in Raja Braja Sundar Deb v. Srimati
Swarna Manjari Dei, P. C. Oct. 29, 1917.
(k) Mit. Chap. I., sec. I., para 24, Chap. I., sec. II., para. 6; Vyav. May.
Chap. IV., sec. I., paras. 4-10; Apast. II., VI., 10, 14; Gaut. Chap. XXVIII.,
paras. 5-16; Manu. Chap. IX. 105ff, 112ff; Vasishtha XVII.; Narada
Chap. XIII., paras. 4, 5, cited Col. Dig. Book. V. T. 32; Vishnu Chap. XVII.
1,2.
(Z) In Western India an adopted son competing with a legitimate eon born
subsequent to the adoption is entitled only to a fifth share of the father's estate,
both under the Mitakshara and the Mayukha — Giriapa v. Ningapa, I. L. K.
17 Bom. 100. In Bengal he is entitled to a third ; in Madras he takes a fifth ;
while amongst those who are governed by the Hindu law of the Benares school
his share would amount to a fourth. Rukhal v. Chunt Lai, I. L. K. 16 Bom.
347; Taramohun v. Kripa Moyee, 9 Suth. 423; Ayyavu v. Niladatchi, 1 Mad.
H. C. 45; Birhhadra v. Kalpataru, 1 Cal. L. J. 388. In Annapurnai Nachiar
V. Forbes (L. R. 26 I. A. 246) it was held that the adoptive mother would
include other wives of the adoptive father, and in conformity with the same
principle a dwyamushyayana would be succeeded by the heirs of his adoptive
father unless there be an agreement to the contrary (Behari Lai v. Shib Lai,
I. L. R. 26 All., 472). Among the Sudras an afterborn natural son excludes an
68 HINDU LAW. [BOOK I.
The position of an adopted son in point of inheritance has
recently been considered by the Judicial Committee in Nagindas
Bhugwandas v. Bachoo Hurkissondas (L. E. 43 I. A. 56, per Sir
John Edge) on appeal from the Bombay High Court (I. L. K.
40 Bom. 270), which raised the point whether the principle of
reduced share to an adopted son applied when he was adopted
by the widow under an authority by her deceased husband who
was a member of the joint family. After carefully considering
all the authorities, their Lordships lay down the law as follows:
" As early as 1833 this Board, in Sumboochunder Chowdhry v.
Naraini Dibeh and Another (3 Knapp, 55), considered that
according to Hindu Law an adopted son becomes for all purposes
the son of the father by adoption. This Board in 1881, in Pudma
Coomari Debi v. The Court of Wards and Another (L. R. 8 I. A.
229), approved of the decision of this Board in Sumboochunder
Chowdhry v. Naraini Dibeh, and held that an adopted son
succeeds not only lineally, but collaterally, to the inheritance of
his relatives by adoption, and also that an adopted son occupies
the same position in the family of the adopter as a natural bom
son, except in a few instances which are accurately defined both
in the Dattaka Chandrika and the Dattaka Mimansa. Those
excepted instances relate to marriage and to competition between
an adopted son and a subsequently-born legitimate son to the
same father. To the same effect is the decision of this Board in
Kali Komul Mozoomdar v. Uma Shunlcur Moitra (L. R. 10 I. A.
138). In the last-mentioned case, when it was before the full
Bench of the High Court at Calcutta, Romesh Chunder Mitter, J.,
held that — * According to Hindu law an adopted son occupies the
same position, and has the same rights and privileges in the family
of the adopter, as the legitimate son, except in a few specified
instances, which have been clearly and carefully noted and defined
by writers on the subject- of adoption. The theory of adoption
involves the principle of a complete severance of the child adopted
from the family in which he is born, both in respect to the paternal
and the maternal line, and his complete substitution into the
adopter's family as if he were born in it. ' With that statement as
to the Hindu law of adoption their Lordships agree. An adopted
son thus in competition with him other than the legitimate son
of his father takes exactly the same share as a legitimate son.
adopted son in succession to impartible property (Ramasami Ramaya v. Sundra-
linga Sami,l. L. E. 17 Mad., 435), but the latter inherits half the share in
respect of other properties (Dattaka Chandrika).
UNDIVIDED FAMILY. 69
(See also Eaghunandan Das v. Sadhu, I. L. E. 4 Cal. 425.) He
is entitled to succeed to all the sapindas of his adoptive father,
whether through males or females, and so will be his male or female
descendants. (Taramohun v. Kripa Moyee, 9 Suth. 423 ; Lokenath
V. Shamasoonduree, S. D. of 1858, 1863; Kishenath v. Hurree-
gobind, S. D. of 1859, 18.) Consequently he would succeed to
the Stridhan of his adoptive mother {Teencowne v. Dinonath,
3 Suth. 49), and the adopted son of a daughter has been held
to share equally with the natural-born son of another daughter,
whatever was left by the maternal grandfather (Surjokant Nundi
v. MoJiesh Chunder, I. L. E. 9 Cal. 70). On the same principle
he is succeeded by the adoptive mother in preference to the
adoptive father (Anandi v. Hari, I. L. E. 33 Bom. 404)."
There are no special authorities mentioning the right of the
adopted son of a son or grandson to inherit his adoptive grand-
father'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. Cf. the Pittapur Maintenance Siiit (P. C. May 2, 1918).
§ 1. A. (3) Illegitimate Sons, Grandsons, and Great-Grand sons.
— In the case of a Sudra, being an avibhakta, 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 illegitimate inherit
half a share.
Authorities.
Digest of Vyavasthas, Chap. II., sec. 1, Q. 4; sec. 3, Q. 1;
sec. 11, Q. 1, 2, 3; Vyav. May. Chap. IV., sec. IV., para. 32;
2 Strange H. L. 70.
The expression " half a share " must be interpreted in
accordance with the principles laid down by Vijnanesvara, 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 property is divided first into
two portions, and A* receives one-half of such a portion, and A^
the rest (m).
In the passage of the Mitakshara referring to the rights of
the illegitimate son, it is stated that the latter inherits the whole
(m) This explanation is also expressly given in the Viramitrodaya.
70 HINDU LAW. [BOOK I.
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. 62), 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, § 1. B. (3).
§ 1. A. (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 forefather's
share.
Authorities. ^
Mayukha, Chap. IV., sec. 4, para. 24 ; so also the Viramitrodaya.
See the case of Moroji Vishvanath v. Ganesh Vithal, 10 Bom.
H. C. E. 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 settled
abroad; but the failure at the same time of three intermediate
links prevents a right from vesting in the fourth 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 proprety. See Col., Dig.
Book V. T. 396 Comm. ; see, however, Book II., § 4 D. and Index,
Limitation.
§ 1. A. (5) Coparceners of the Deceased. — The share of an un-
divided coparcener who leaves none of the above-mentioned
descendants goes to his undivided coparceners.
See Digest of Vyavasthas, Chap. I., sec. 2; Chap. II., sec. 10,
Q. 5; and for Authorities, see Chap. I., sec. 2, Q. 3.
The Mitakshara (Chap. II., sec. 1, pp. 7 and 20) and Vyav.
May. state distinctly that the rule, as given above, holds good
in the case of brothers, but not that it touches the case of more
UNDIVIDED FAMILY. 71
remote relations. The Sastris generally hold that the word
" brothers " in the text in question is intended more remotely
to include coparceners; in fact that it contains a " dikpradar-
sana," or indication of the principle to be followed. There can
be no doubt that they are right. For the law of representation
secures also to remote relations the succession to their copar-
cener's share. Thus if A, B, C, and their descendants B\ B^,
and CS 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 rule of survivorship in an undivided family was recognised
by the Privy Council in Katama Natchiar v. Rajah of Shiva-
ganga (t), but in a subsequent case it has been made subordinate
to that of nearness of kin to the late Eaja (v). In another case (iv)
reference having been made in argument to Mit. Chap. II., s. iv.
their Lordships seem (see Kep., 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 excluded by him and his brother from succession to a
third brother their uncle deceased, but the Mitakshara in the
place referred to is treating of separate property. So, too, the
Viramitrodaya, 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. Chap. I., s. v., 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 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 (x). The case of Debi Parshad v. Thakur
Dial [y) supports the views just stated.
(t) 9 M. I. A. 539.
(c) See above, p. 66.
{w) Ramprasad Tewarry v. Sheochurn Doss, 10 M. I. A. 490.
(x) Mitrashara Chap. L, sec. VI., pi. 11, 12; Chap. II., sec. I., pi. 30;
Vishnu, Chap. XVII., Sloka 23; Yajn. II., 120, 135.
iy) I. L. R. 1 All. 105.
72 HINDU LAW. [BOOK I.
In a Bengal case (z) 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 connection by blood and by association, give equal rights to
the re-united half-brother and the separated whole-brother.
Jimuta Vahana in the Daya Bhaga quotes Yama to show that
the rule applies only to divided immovable 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 re-united brethren, so 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 inheritance, if a whole brother survive,
until he becomes re-associated, while the whole brother, on
account of his connection by blood, retains a right of inheritance
in spite of separation. The half-brother is restored to a place
by re-union (a). The whole-brother has not quite forfeited his
place by division; though in competition with another whole-
brother, unseparated or re-united, his single connexion does not
avail against the double connexion of the latter; and on his return,
having a double connexion with his own whole -brothers, he
succeeds to them.
However the case may be in Bengal, the Mitakshara says of
the application of the Slokas (Yajn. II., 134, 139) that " partition
had been premised (to the general text on succession) and re-union
will be subsequently considered," so that in Bombay no
preferential inheritance of brothers in a united family can arise
from the texts. It is the same in Vishnu, Chap. XVII., Sut. 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 (h). In Neelkisto Deb v. Beerchunder Thakur (c)
(z) Sheo Soondary v. Pirtlia Singh, L. E. 4 I. A. 147.
(a) See Prankishen Paul Cliowdry v. Mathooramohan Paul Chowdry,
10 M. I. A. 403 ; and Manu IX. 212.
(b) See Mit. Chap. II., sec. 1, pi. 30; and Chap. I., sec. V., pi. 2; Yajn. II.
120, 121; Moro Vishvanatli v. Ganesh Vithal, 10 Bom. H. C. K. 444.
(c) 12 M. I. A. 523.
DIVIDED FAMILY. 73
title by survivorship is said to be a rule alternative to that founded
on efficacy of oblations, and it is on this latter that the decision
of the Calcutta High Court is founded (d), vt^hich has been followed
by the Privy Council in Sheo Soondary's Case. The Bengal case
indeed admits a difference of doctrine under the Mitakshara (e).
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 (/).
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 (g). A son's obligation to pay his
father's debt depends on the nature of the debt, not on the nature
of the property that he has inherited (h). And the property, even
where a son is liable, is not so 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 (i). Securities created by a father,
unless they are of a profligate character, bind his sons as heirs (k).
The widows of deceased co-sharers are entitled to maintenance
and residence (l). See below § 1. JB. (1).
§ 1. 5. —HEIRS TO THE SEPARATE GRIHASTHA,UPAKUR-
VANA BRAHMACHARI, AND TO THE SEPARATE
PROPERTY OF AN UNDIVIDED COPARCENER.
The separated householder being father of a family becomes
the origin of a new line of succession within that family (m). 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 sons or after separation from them he is free to
(d) See Rajkishore v. Govind Chunder, L. R. 1 Calc. 27.
(e) Loc. cit.
if) Radhabai v. Nanarao, I. L. E. 3 Bom. 151.
(g) Udaram Sitaram v. Ranu Panduji et al., 11 Bom. H. C. E. 76, 85. Goor
Pershed v. Sheodin, 4 N. W. P. E. 137.
(h) Ibid, and Laljee Sahoy v. Fakeer Chand, I. L. E. 6 Cal. 135. ,
(t) Jamiyatram v. Parbhudas, 9 Bom. H. C. E. 116.
(k) Girdhariv. Kanto Loll, L. E. 1 I. A. 321; Suraj Bunsee Kooer v. Sheo
Prasad, L. E. 6 I. A. 104; Jetha Naik v. Venktappa, I. L. E. 5 Bom. at 21;
Ponnappa v. Pappuvayyangar, I. L. E. 4 Mad. 1.
(I) Mit. Chap. II., § 1, para. 7, ss. Viram. p. 153 transl., Talemand Singh v.
Rukmina, I. L. E. 3 All. 353, referring to Gauri v. Chaudramani , I. L. E.
1 All. 262, and Mangala Debt v. Dinanath Bose, 4 B. L. E. 72 0. C. G.
(m) See Rajah Ram Narain Singh v. Pertwin Singh, 20 C. W. E. 189.
74 HINDU LAW. [BOOK I.
dispose of it (n). Should he fail to dispose of his estate, and die
separated, his sons (o) take equally, and failing sons, others take
in the order following : —
§ 1. B. (1) Sons, Son's Sons, and Son's Son's Sons. — The three
first descendants of a separate Grihastha in the male line
inherit per stirpes.
See Digest of Vyavasthas, Chap. II., sees. 1 and 4, and for
Authorities, see above § 1. ^. (1).
The householder, though unseparated generally, may have
acquired property which ranks as his separate estate. The con-
ditions 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 (p). But under
circumstances the usual presumption will not be raised as ruled
by the Judicial Committee in Musst. Bannoo v. Kasharam (g).
Seniority in marriage of their mothers gives no advantage to
the sons over their seniors in birth by another wife (r) ; and the
wives being equal in class, seniority by birth gives superiority
of right (s), where the property is impartible (t). See above
pp. 65-66.
(n) Bhika v. Bhana, 9 Harr. 446; Narottam Jagjivan v. Narsandas Hariki-
sandas, 3 Bom. H. C. E. 6 A. C. J. ; Baboo Beer Pertah Sahee v. Maharajah
Rajender Pertah Sahee, 12 M. I. A. at p. 39; Tuljaram Morarji v, Mathuradas
Dayaram, Bom. H. C. P. J. for 1881 p. 260.
(o) Mt. Anunda Koonwur v. Khedoo Lai, 14 M. I. A. 412. (Mithila law
agreeing here with that of the Mitakshara.)
(p) See Dhurm Das Pandey v. Mussumat Shama Sundri Dehea, 3 M. I. A.
229, 240; Vedavalli v. Narayan, I. L. E. 2 Mad. 19.
Prankishen Paul Chowdhry v. Mothooramohun Paul Chowdry, 10 M. I. A.
403.
(q) Musst. Bannoo v. Kasharam, I. L. E. 3 Cal. 315 (P.C.).
(r) Ramalaksmi v. Shivanantha, 14 M. I. A. 570; Jagdish Bahadur v. Shea
Pertah, L. E. 28 I. A. 100.
(s) Manu Chap. IX., paras. 122, 125.
(t) Ibid, and Bhujangrav v. Malojirav, 5 Bora. H. C. E. 161, A. C. J. ; Pedda
Ramappa Nayanivaru v. Bangari Seshamma Nayanivaru, L. E. 8 I. A. 1.
The partition of lands in descent between all the sons, and failing them
between the daughters, was the universal law of socage descents in England
SEPARATED HOUSEHOLDER. ^ 75'
The widow of the late owner is entitled to residence in the
family house (v); 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 (w) ; she may leave it for a just cause or may go to live
with her father, but she cannot leave it for an improper purpose
without losing her right to maintenance; and she cannot be
deprived of this right by a sale of the house (x).
The widow has a right to an adequate maintenance (y) out of
the estate and in proportion to it (z). She need not be maintained
exactly as her husband would have maintained her (a) ; but she
must be supported in the family (b). She cannot be deprived
of her right by an agreement taken from her by her husband
and a gift of all his property to his sons (c). A sum may be
invested to produce the maintenance or other arrangements made
to secure it (d). Purchasers from the successor are bound or not,
as they have, or have not, had notice of the widow's claim according
to Srimati Bhagavati Dasi v. Kanailal et al. and Beharilalji v.
B<ii Rajbai (e). As to the nature of the widow's right as an
indefeasible charge on the estate, opinions have differed (/). In
until comparatively late times ; nor was it peculiar to England, being found in
the lands of the roturiers of France as well as in other parts of Europe. Elton,.
Tenures of Kent, 41. There are frequent instances in " Domesday " of males
holding in coparcenery, or as it is there expressed, in paragio. Ihid. 58.
(v) Prankoonwar et al. v. Deokoonwar, 1 Borr. K. 404.
(w) Kumla et al. v. Muneshankur, 2 Borr. K. 746; Naik v. Honama, I. L. R^
15 Bom. 236; Mulji Bhaishankar v. Bai Ujam, I. L. R. 13 Bom. 218; Parwati-
hai V. Limhaji, I. L. R. 36 Bom. 131.
(x) Mangala Dehi et al. v. Dinanath Bose, 4 B. L. R. 72 0. C. J. ; Gauri v.
Chandramani, I. L. R. 1 All. 262 ; Talemand Singh v. Rukmina, I. L. R. 3 All.
353, See Dig. Vyav., Chap. I., § 2, Q. 9; Yellawa v. Bhimangavda, I. L. R.
18 Bom. 452.
iy) Macn. Cons. Hindu Law, 60.
(z) 2 Str. H. L. 290, 299; Sakvarhai v. Bhavanji, 1 Bom. H. C. R. at p. 198.
(a) Kalleepersaud Singh v. Kupoor Koonwaree, 4 C. W. R. 65.
(b) See Book II., § 7 A; M. Venkata Kristna et al. v. M. Venkatarut-
namah, Mad. S. D. A. R. for 1849, p. 5; Vivada Chintamani, p. 261.
(c) Narhadahai v. Mahadev Narayan, I, L. R. 5 Bom. 99.
(d) Sakvarhai v. Bhavanji, 1 Bom. H. C. R., at p. 198; Vrandavandas v.-
Yamunahai, 12 Bom. H. C. R. 229.
(e) 8 B. L. R. 225 A. C. J. ; I. L. R. 23 Bom. 342. See Adhiranee Narain
Coomary et al. v. Shona Malee Pat Mahadai et al., 1. L. R. 1 Cal. 365 ; Baboo
Goluck Chunder v. Ranee Ohilla Dayee, 25 C. W. R. 100. See also Ramlal
Thakursidas v. Lakshmichand Muniram et al., 1 Bom. H. C. R. 71 App. ; and
Johurra Bibee v. Sreegopal Misser et al., I. L. R. 1 Cal. 470.
(/) See Ramchandra v. Savitribai, 4 Bom. H. C. R. 73 A. C. J. ; Heeralall v.
Musst. Konsillah, 2 Agra R. 42; Musst. Laltikuar v. Ganga Bishan et al.,.
76 HINDU LAW. [BOOK I.
Lahshman Ramchandra v. Satyahhamabai (g) it was held that
inotice 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. In Mani Lai v. Bai Tara it was
held that an auction purchaser of a house, with notice that it
was subject to the widow's right to reside therein, took free from
her right of residence unless the debt for which it was sold was
not for the benefit of the family or was in any way in fraud of
her rights (h).
Even a concubine and her offspring are entitled to support.
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 connection with the estate pass to the heir taking it, except
when improperly incurred (k). 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 zamindari which descended to him from
his father, became assets in his hands " ** liable for the debts
due from his father " (I).
§ 1. B. (2) Adopted Sons. — An adopted son and his descendants
inherit in the same manner as natural sons and their
descendants. In case, after an adoption has been made, of
7 N. W. P. E. 261 ; Baijun Doohey et at. v. Brij Bhookun Lall, L. K. 2 1. A. 279 ;
Koomaree Debia v. Roy Luchmeeput Singh et al., 23 C. W. E. 33; Adhiranee
Narain Coomary et al. v. Shona Mallee Pat Mahadai et al., I. L. E. 1 Cal. 365 ;
Mitakshara Chap. I. sec. VII. 1, 2; sec. I. 27.
(g) I. L. E. 1 Bom. 262; 2 Ibid. 494; I. L. E. 2 Mad. 339.
(h) I. L. E. 17 Bom. 398.
(i) 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 twenty-one years of age. The general age of
majority is now eighteen. See Act IX. of 1875.
(k) See Narada Ft. I. Chap. III., 2, 4, 18; Ponnappa Pillai v. Pappuvay-
yangar, I. L. E. 4 Mad. 1. Gopal Kristna Sastri v. Ramayyangar, I. L. E.
4 Mad. 236. As to the contract of tenancy see Venkatesh Narayan Pai v.
Xrishnaji Arjun, Bom. H. C. Print. Judg. 1875, p. 361; Balaji Sitaram Naik v.
Bhikaji Soyare Prabhu, Bom. H. C. P. J. 1881, p. 181.
(l) Muttayan Chetttar v. Sangili Vira Pandia, L. E. 9 I. A. 127, reversing
I. L. E. 3 Mad. 370.
DIVIDED family: SONS. 7T
the adopter having a legitimate son of his body, the adopted
son receives a fourth of a share.
See Digest of Vyavasthas, Chap. II., sec. 2, and sec. 4, Q. 2,
and for Authorities, see above § 1. ^4. (2) (3).
If a widow adopts a son in her husband's name, the adopted
son immediately inherits the deceased's property. See Digest of
Vyavasthas, Chap. II., sec. 2, Q. 8, ss.
Kegarding the interpretation of the expression " a fourth of
a share," see § 1. ^. (3), page 69.
Adopted sons of son's sons, or son's son's sons, likewise, take-
the places of their adoptive fathers. See above, § 1. ^l. (2),
page 67.
§ 1. B. (3) SuDRAs' Illegitimate Sons. — On failure of legitimate
sons of the bodij, son's sons, or son's son's sons, the illegiti-
mate son of a Sudra and his descendants in the male line
inherit the ancestor's property. If legitimate children he'
living, the illegitimate son takes half a share.
See Digest of Vyavasthas, Chap. II., sec, 3, and for Authorities,.,
see above, § 1. A. (3).
See § 1. .4. (3) above, page 69. That illegitimates of the higher -
castes can claim maintenance only, while those of the Sudra,
caste are not outcastes but inherit, is laid down in Pandaiya v.
Puli et al. (m). See also Chuoturya Run Murdun Syn v. Sahub'
Purhulad Syn and Roshan Singh v. Balwant Singh (n).
(m) 1 M. H. C. K. 478.
(n) 7 M. I. A. 48, 50; L. R. 27 I. A. 61.
The Viramitrodaya, following the Mitakshara Chap. I., sec. X., paras. 40-43,.
in contemplating unequal marriages as possible though reprehensible, assigns.
to the sons born 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 Sudra
wife, to a full share at the father's discretion. Viram., Tr. 98, 129. An excep-
tion 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. Ihid. 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. 176a and Hargrave's Note. The laws were connected
as amongst the Sudras with the general looseness of the marriage tie, which^^
the husband could dissolve at will. See Ancient Laws of Wales, p. 46 § 54.
According to the Lombard law the illegitimate was excluded from succession,,
but the legitimate son had to give him a provision in money.
78 HINDU LAW. [BOOK I.
According to Digest of Vyavasthas, 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 Sudra's illegitimate 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 in a position more analogous to that
of a legitimate son, than to 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 legitimate sons, should also be applied to his
sons — that is, that his sons should be considered to represent
him, and to take, in case he dies before his father, the share
which would have fallen to him.
In favour of this view we may adduce also the fact, that the
rules treating of the rights of the illegitimate son are given by
Vijnanesvara at the end of the chapter on the " apratibandha
daya," inheritance by indefeasible right, and form as it were
an appendix to it. Hence it may be inferred that Vijnanesvara
intended all the rules, previously given, regarding sons in general,
to apply also to him, except as far as they were apparently
modified by the text of Yajnavalkya. According to this, the
failure of daughters and their sons is necessary before the
illegitimate son can inherit the whole property (o). See Mit.
Chap. I., sec. 12, and Chap. II., sec. 2, pi. 6; and also above,
§ 1. A. (3), page 69.
The illegitimate offspring of a casual connection may inherit,
if duly recognised (p), but a son born in sin (adultery or incest)
is not entitled to a share of the inheritance {q). He can claim
only maintenance (r).
Illegitimates inherit collaterally only by caste custom. See
Digest of Vyavasthas, Chap. II., sec. 13, Q. 9; 2 Macn. H. L. 15;
(o) See Muttuswamy Jagavera v. Venkataswara, 12 M. I. A. 220.
(p) Thukoo Baee v. Ruma Baee, 2 Borr. E. 499; Rahi v. Govind, I. L. K. 1
Bom. 97.
iq) S. A. No. 124 of 1877, Narayanbharthi v. Lavingbharthi ; Bom. H. C. P.
J. F. for 1877, p. 173; S. C. I. L. K. 2 Bom. 141.
(r) Ibid, and 2 Str. H. L. 68.
DIVIDED FAMILY : ILLEGITIMATES. 79
Mit. Chap. I., sec. 11, pi. 31 (s). Inter se the sons of the
same concubine are regarded as brothers of the whole blood.
See Digest of Vyavasthas, Chap. II., sec. 11, Q. 4. They may
form a united family with their legitimate half-brothers. See
Digest of Vyavasthas, Chap. II., sec. 3, Q. 12.
The rule given by Yajnavalkya in favour of the illegitimate
son of a Sudra, though separated in the Mitakshara 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 issue — that is, none
of the sons just enumerated (t). What Yajnavalkya obviously
meant, therefore, was that in the absence of an auras son and
of a daughter's son, a Sudra 's son by his slave should succeed.
The daughter's son is the one just 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 Sudra {v). Hence the word duhitra suta is
substituted. By Yajnavalkya the daughter as well as the wife
is brought in after the sons of all classes (w). 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 (x). If Yajnavalkya 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 Mitakshara, Chap. II., sec. II., para. 6 from Manu and
Vishnu (apart from Balambhatta 's gloss) show that on failure
of descendants in the male line both the Eishis prescribed the
succession of the daughter's son and not without appointment (y)
of the daughter herself, who came in at a later stage (z). This
(s) Nissar Murtojah v. Kowar Dhunwunt Roy, I. Marsh. R. 609.
(t) Mitakshara Chap. II., sec. I., paras. 2, 39. The term is aputra = sonless.
(v) See Viramitrodaya, p. 121. Infra, Digest of Vyavasthas, Chap. II.,
sec. 3, Q. 12, 13.
(w) See, too, Mitakshara Chap. II,, sec. I., para. 17.
(x) See Mitakshara Chap. II,, sec, II., paras. 2, 6.
(y) Viramitrodaya, TransL, p, 121.
(z) Bhau Nanaji v. Sundrahi, 11 Bom, H. C. R. 274. See infra, Dig, Vyas.
Chap. II., sec. 3, Q. 10.
80 HINDU LAW. [book I.
makes it the more probable that the daughter's son, but not the
daughter, was intended to precede the illegitimate son, though
the precedence assigned to him by some commentators over his
own mother in ordinary cases is to be rejected, as Mitramisra
says, on account of the specification by Yajnavalkya of the
daughter and not of her son, as an heir (a). In the case below,
Digest of Vyavasthas, Chap. II., sec. 3, Q. 8, the illegitimate
son of a Mali is preferred to the widow. The widow could
claim recognition, but she is postponed by the Sastri to the
illegitimate son through the operation of Yajnavalkya 's text {h)
and Vijnanesvara's comment (c), which provides for the
daughter's son and daughter, but not for the widow (d).
It seems anomalous that the widow should be thus postponed
to the illegitimate son, and her own daughter and the daughter's
son. But according to the recognised rule of construction (e)
the text of Yajnavalkya can be controlled only by another not
reconcilable with its literal sense. Then the passages from Vishnu
and Manu, quoted Mit. Chap. II., sec. II., para. 6, show that
at one stage of the development of the Hindu 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 (/). Yajnavalkya 's text belongs to this stage: so little
progress had been made that the Kishi does not even name the
daughter's son except in this place; but this mention is enough.
It is to the patni only that the sacred texts assign a right of
inheritance (g). The English translation "wife " fails to indi-
cate the distinction between the wife sharing her husband's
sacrifices and the wife of an inferior order (h). The Sudra having
no sacrifices to celebrate like the twice-born has no " patni "^
to share them. The Asura marriage being a purchase gave to
(a) Viramitrodaya, Transl., p. 184.
(b) Mitakshara Chap. I., sec. XII., para. 1.
(c) Mitakshara Chap. I., sec. XII., para. 2.
(d) So too the Viramitrodaya, Transl. pp. 130, 176.
(e) See Viramitrodaya, Transl. p. 236.
(/) See Manu Chap. IX., 130, 146, 147. Vishnu Chap. XV., 4, 47. Compared
with Gautama XXVI., 18, ss., and Apastamba II. VI., 14; Narada XIII.,.
60, 51.
(g) See below Dig. Vyav., Chap. II., sec. 6 A, Q. 6 and above Book I. See
too Viramitrodaya, Transl. p. 173.
(h) Mit. Chap. I. , sec. XI. 2. Da Bhag. Chap. XI. , sec. I. , 48. Viramitrodaya.^
Transl. p. 132.
DIVIDED family: ILLEGITIMATES. 81
the wife no higher status than that of a " dasi " or concubine (i).
But this or some even lower form was the appropriate one for
Sudras (k) : the higher forms were not allowable until custom in
some measure made them so (l), and the different consequences
of marriage according to the different forms (m) are traceable to
a time and a custom in which community of property between
the married pair was not recognised (n). 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 development
of the purely Brahminical law by which widows in the higher
castes benefited should not have embraced in its full extent the
degraded Sudras. 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 sons, which appeared
reasonable to those whose own heirs might be sons irregularly
contributed to their families, and who looked on the Sudra
marriages as virtually no more than licensed concubinage (o).
The express provision in Yajnavalkya's text in favour of the
daughter's son may not improperly be traced in reality to a time
when this kind of descent afforded the better assurance of a real
connexion of blood. But it may be really an adoption for the
Sudras of a rule much repeated, though not intended for that
caste. The advantageous position assigned to the daughter's son
is traced by Jimuta Vahana to his identification with the son of
the appointed daughter (p), in whose favour only, Jimuta Vahana
says, the texts expressly pronounce. He cites Baudhayana's
text (q) that the " Putrika Sutam " is to offer the pindas and
(t) Smriti Chand, 150; Viramitrodaya, loc. cit.
(k) Baudhayana makes mere sexual connexion a lawful form of union for
Vaisyas and Sudras, "for," he says, " Vaisyas and Sudras 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. Kasyappa has pronounced her a slave." Baudh., Tr. p. 207.
(l) Cf. Vijiyarangam v. Lukshuman, 8 B. H. C. E. 255-56 0. C. J.
(m) Mitak. Chap. II., sec. XI., 11.
(n) See the chapter on Stridhan.
(o) See Gautama Chap. XIX.; Baudhayana, II., 2.
The Roman 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 concubinage in law until late in the ninth
century. See Milman Hist, of Latin Christianity, vol. II., p. 15 ; Lecky, History
of European Morals, II., 67.
(p) Daya Bhaga Chap. XL, sec. II., 21.
(g) At 1 W. & B. (Ist ed.), 310, 315.
H.L. ' 6
82 HINDU LAW. [book I.
apparently excludes the mere " duahitra " from this right, which
is assigned to him also, however, by Manu (r). The introduction
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 recog-
nised as a regular heir (s), the daughter not appointed gained a
place (t), and in the passages cited as well as in Brahaspati (v) is
mentioned without any mention of the wife. The texts were so
far admitted as to the Sudras, but those texts specially favouring
the wife as an heir, bearing only on the " patni," were not (iv).
§ 1. B (4) Widows. — On the failure of the three first descendants
in the male line, of adopted sons, and in the case of Sudras
of illegitimate sons, a faithful widow inherits the estate of
a separate householder, and the separate estate of a united
coparcener.
See Digest of Vyavasthas, Chap. II., sec. 6 ; and for Authorities,
see Digest of Vyavasthas, Chap. I., sec. 2, Q. 4; Chap. II.,
sec. 6 A, Q. 11; Vyav. May. Chap. IV., sec. VIII., pp. 1 seq.
Under the strict Hindu law only such a widow inherited 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 (x). As only a female married as a virgin
could occupy such a position, the females who had been widowed
(r) Cf. also Sankha and Likhita. Stokes's H. L. B. 411.
(s) Mit. Chap. I., sec. XI., para. 3.
(t) Manu Chap. IX., 130; Narada Chap. XIII., 50.
(v) Daya Bhaga Chap. XI., sec. II., 8.
(w) See Digest of Vyavasthas, Chap. II., sec. 6, A. Q. 6, and the instance at
Chap, v., sec. II., Q. 1 and 2.
The Salic and Burgundian laws excluded women from inheritance to land.
The Wisigoths more influenced by the Eoman law admitted the daughter's suc-
cession, and this was in part adopted by the Franks. In England boc-land
was heritable by females, but in the folc-land they could take no share. Hence
possibly their exclusion by custom in some manors, see below.
(x) "A wife of the same class is indicated by the term ' patni ' itself, which
signifies union 'through sacrifice." Viramit., Transl. p. 162. A wife of a rank
below a " patni " would be entitled only to maintenance according to the
Smriti Chandrika, Chap. XI., and comments in Viramit., Tr., pp. 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 " patni," to whom the Smriti Chandrika,
loc. cit., paras. 11, 25, confines it. As to the relative rank of wives the first
married has precedence. See Steele, L. C. 170.
DIVIDED family: WIDOWS. 83
and remarried (by Pat) were excluded from the succession to
their second husband's property. By Act XV. of 1856 this
disabihty has been removed, and the legal relation of a wife to
a husband, whether she be technically a patni or not, is recognised
as giving a right of inheritance to the woman and legitimacy to
her children (y).
If a householder leave more than one widow they share the
estate equally. See Digest of Vyavasthas, Chap. II., sec. 6a,
Q. 35 and 36.
Two or more widows take a joint estate with the right of
survivorship and partition (z). A co- widow can alienate her life
estate, whole or in part; but the joint estate cannot be divested
of the characteristics of the right of survivorship unless alienation
is for necessity (a).
Proved adultery followed by conception and birth of a child
bars the succession of a widow to her deceased husband's estate,
unless condoned by the husband, her other rights, however,
remaining unaffected. But if she has once obtained it, subsequent
unchastity does not afford a reason for depriving her of it. See
Digest of Vyavasthas, Chap. VI., sec. 3, Q. 6, Eemark (h).
Kemarriage of a widow results in divesting her of the property
inherited from her first husband, even though such remarriage
be in accordance with the custom of the caste. The High Court
of Allahabad has adopted a more reasonable view, and held that
iy) See Vyav. May. Chap. IV., sec. VIII., para 3; Steele, Law of Castes,
168, 169, 175, and the answers of the Sastris below, Dig, Vyav., Chap. II.,
sec. 6a. Balkrishna v. Savitribai, I. L. E. 3 Bom. 51 ; Ramappa v. Sithammal,
I. L. E. 2 Mad. 182.
(z) Bhagioandeen's Case, 11 M. I. A. 487; Tanjore Case, L. E. 4 I. A. 212;
Jijoyiamha v. Kamakshi, 3 Mad. H. C. 424; cf. Sunder v. Parhati, Jj. E. 16 I. A.
186 ; Rindamma v. Venkataramappa, 3 Mad. H. C. 286 ; S^ellam v. Chinammal,
I. L. E. 24 Mad. 441 ; Chhittar v. Goura, I. L. E. 34 All. 189.
(a) Ramakkal v. Ramasami, I. L. E. 22 Mad. 522 ; Gajapati Radhamani v.
Pusapati Alakarajeswar, L. E. 19 I. A. 184; Thakurmani v. Doi Rani, I. L. E.
33 Cal. 1079; Janokinath v. Mothmanath, I. L. E. 9 Cal. 580, F. B. ; Vadali v.
Kotipalli, I. L. E. 26 Mad. 334 ; Hari Narayan v. Vitai, I. L. E. 31 Bom. 560,
both according to the Mitakshara and the Mayukha ; Durga Dat v. Gita, I. L. E.
33 All. 443; Ganpat v. Tulsiram, I. L. E. 36 Bom. 88.
(b) Gangadhur v. Yellu, I. L. E. 36 Bom. 138; Kerry KoUtany v. Moneeram
Kolita, L. E. 7 I. A. 115, on appeal from Bengal, 13 B. L. E. 1; Parvati v.
Bhiku, 4 B. H. C. (A. C. J.) 25; Bhawani v. Mahtab, I. L. E. 2 All. 171;
Sellam v. Chinnammal , L. E. 24 Mad. 441; cf. Vishnu Shambhoy v. Man-
gamma, 1. L. E. 9 Bom. 108; Keshare v. Gobind, 1. L. E. 9 Bom. 94 (her right
to adopt).
84 HINDU LAW. [BOOK I.
among those Hindus who allow remarriage of a widow her
remarriage would not affect her right in the property inherited
from her former husband. She does not, however, lose her right
in the property inherited in her capacity other than that of a
widow, although the Bombay High Court has laid down the law
to the contrary in Vithu v. Govinda (bb) on the basis of sec. 2 of
Act 15 of 1856.
During the widow's survival no right vests in her husband's
brothers or the other heirs. Her life with respect to the subse-
quent inheritance of heirs sought amongst her husband's relatives
is as a prolongation of his (c). Succession on the widow's death
opens to the husband's qualified heirs then in existence (d).
The duties and rights attached to the married state are governed
by the customary law of the class or caste (e) which regulates
the form of the ceremony as well as the relations arising from
it (/). The law of the caste has been more or less subordinated
in cases of disagreement to the general Hindu law (g), and private
agreements are not allowed to control the customary law so as
essentially to modify the obligations which it imposes (h), 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 husband (i).
(6b) I. L. K. 22 Bom. 321, F. B.
(c) Rooder Chunder v. Sumhhoo Chunder, 3 Cal. S. D. A. K. 106; Musst.
Jymunee Dihiah v. Ramjoy CJiowdree, Ibid. 289.
(d) Laxmi Narayan Singh et al. v. Tulsee Narayan Singh et al., 5 Sel.
S. D. A. R. 282 (Calc); Nohin Chunder v. Issur Chunder et al., 9 C. W. R.
508 C. R. ; Bhaskar Trimhak v. Mahadev Ramjee at al, 6 Bom. H. C. R. 14,
0. C. J. ; P. C. in Bhoohun Moyee Dehia v. Ram Kishore Acharjee, 10 M. I. A.
279.
(e) Ardaser Cursetjee v. Perozebai, 6 M. I. A. 348, 390; Moonshee Buzloor
Ruheem v. Shumsoonissa, 11 lb. 551, 611; Skinner v. Orde, 14 M. I. A. 309,
323; Rahi v. Govind valad Teja, I. L. R. 1 Bom. 97, 116; Reg. v. Sambhu
Raghu, Ibid. 347; Mathura Naikin v. Esu Naikin, I. L. R. 4 Bom. 545, at
565 ss.
(/) Gatha Rain Mistree v. Moohita Kochin Atteah Domoonee , 14 Beng. Law
Rep. 298; Rajkumar Nobodip Chundro Deb Burmun v. Rajah Bir Chundra
Manikya, 25 C. W. R. 404, 414.
(g) Reg. v. Karsan Goja, 2 Bom. H. C. R. 117, 125; Comp. Gaut. XL 20;
Manu II., 12, 18.
(h) Seetaram alias Kerra Heerah v. Mussamut Aheeree Heeranee, 20 C. W. R.
49.
(i) Katyayana cited in M. Williams' In. Wis. 160; Brihaspati in the Smriti
Chandrika, Chap. XL, sec. 1, para. 4; Manu. IX., 45; Hurkoonwar v. Ruttun,
1 Bor. 475; Treekumjee v. Laros, 2 Bor. 397; Koduthi v. Madu, 1. L. R,
I
DIVIDED family: WIDOWS. 85
The domestic fire must be maintained as a primary duty, and in
its maintenance and the performance of the household rites the
Hindu wife must take part with her husband (k). Thus, as the
Mahabharat says (l) : — ** 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 " (m). As under the Eoman Law, " Nuptix
sunt divini juris et humani communicatio." The wife's gotra
becomes that of her husband (n) ; her complete initiation is
effected by her marriage ; she renounces the protection of her
paternal manes and passes into the family of her husband (o).
The connexion being thus intimate there should be no litigation
between the married pair (p), and according to Apastamba (q)
there can be no division between them. Any property which
the married woman may acquire is usually her husband's (r).
A thing delivered to her is effectually delivered to the husband,
7 Mad. 321 ; Rasul Jehan v. Ram Surum, I. L. E. 22 Cal. 589; Matangivi Gupta
V. Ram Rutton Roy, I. L. E. 19 Cal. 289; Mula v. Partab, I. L. E. 32 All. 489;
Chamar Haree v. Kashi, I. L. E. 26 Bom. 388, approving Akora v. Boreani,
2 B. L. E. 199 ; Basappa v. Rayava, I. L. E. 29 Bom. 91 ; Vithu v. Govinda,
I L. E. 22 Bom. 321 (F. B.).
(k) Manu III., 18; Baudhayan, Transl., p. 193.
(/) Manu III., 67; II., 67; IX., 86, 87, 96; Apast. 99, 125, 126; Col. Dig.
Book IV., T. 414; Smriti Chandrika, Chap. XI., sec. 1, para. 9.
(m) Manu IX., 45; Brihaspati, quoted by Kulluka on M. IX., 187.
(n) Steele 27 (n) ; infra Dig. Vyav., Chap. IV. B., sec. 6, II. (b), Q. 3;
Lalluhhoy v. Cassihai, L. E. 7 1 A., at p. 231.
Under the Teutonic laws which recognised the birth-law of each as per-
manently adhering to him, there were exceptions (1) in the case 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 Eoman law. See Savigny's History of
the Eoman Law, Chap. III.
(o) 2 Str. H. L. 61; Sri Raghunadha v. Sri Brozokishore , L. E. 3 I. A. 191.
So amongst the Eomans. Dio. Halic. II., 25.
(p) 2 Str. H. L. 58. Col. Dig. Book III. Chap. I., T. 10. Conjugal rights
were refused 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 Bhagvan
V. Bai Heta, Bom. H. C. P. J. File for 1880, p. 322.
iq) See Harita in Smriti Chan., Chap. II., sec. 1, para. 39. Viramit., Trans.
p. 69. Apastamba, Trans, p. 135.
(r) Vyav. May., Chap. IV., sec. 10, para. 7, Col. Dig. Book III., Chap. I.,
T. 10; Narada II., XII. 89; Apast. 156; Manu VIII. 416; 1, Str. H. L. 26.
Katyayana quoted in Smriti Chandrika, Chap. IX., sec. 1, para. 16. But see also
Mit. Chap. II., sec. 11. Ramasami Padeiyatchiv. Virasami P adeiy atchi, SM3,d.
H. C. E. 272. She is liable in her stridhan only for a contract made jointly
with her husband, while a woman contracting as a widow remains subject
86 HINDU LAW. [book I.
and what is received from her is as if received from him (s).
Her full ownership of her stridhan 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 Saudayakam, the gifts of affec-
tionate kinsmen (t). See the Chapter on Stridhan.
The identity between the married pair being thus complete,
Jagannatha cites Datta (v) to the effect that " wealth is common
to the married pair"; but this he explains as constituting 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 (w). Her legal existence is thus, in some
measure, absorbed during her coverture in that of her husband (x).
His assent is specially necessary to her dealings with land
according to Narada, Part I., Chap. III., pp. 27-29 (y). In case of
unauthorised transactions she is liable in her stridhan, but not
in her person (z). On her decease she shares in the benefit of
her husband's sacred fire (a), her exequial ceremonies according
to the Mitakshara and the Nimayasindu, are to be performed by
her husband, and in his absence by the members of his family,
not by those of her own family of birth. Surviving her husband,
generally to the liability after her remarriage. Narotam v. Nanha, I. L. R.
6 Bom. 473. Nahalchand v. Bai Shiva, Ibid. 470. S. A. 261 of 1861 ; S. A. 467
of 1869. When living separate without necessity she is fully liable for her
debts. Nathubhai Bhailal v. Javher Raiji, I. L. R. 1 Bom. 121.
(«) Col. Dig. Book V. Chap. VII., T. 399 Coram. Her authority would, how-
ever, 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, illus. (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.
(t) Reg. V. Natha Kalyan et al., 8 Bom. H. C. R. 11 Cr. Ca. ; Tukaram v.
Gunajee, Ibid. 129 A. C. J. ; Vyav. May., Chap. IV., sec. 10, pi. 8 and 10; Col.
Dig., Book II., Chap. IV., T. 55; Book V., T. 478; Viramitrodaya, quoted
below; Manu II., 199; Smriti Chandrika, Chap. IX., sec. 2, para. 12; 2 Macn.
H L. 35.
(t>) Col. Dig. Book V. T. 415. See also the Smriti Chandrika, Chap. IX.,
sec. 2, para. 14.
(w) Viramit., Transl. 166.
(x) See Manu IX., 199, as construed by the Mayukha and Viramitrodaya.
iy) See also D. Rayapparaz v. Mallapudi Rayudu et al., 2 M. H. C. R. 360.
(z) Nathubhai v. Javher Raiji et al. I. L. R. 1 Bom. 121.
(a) Viramit., Transl. 133.
DIVIDED family: WIDOWS. 87
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 the Smriti
Chandrika (Trans, p. 151), her right to inherit depends. Devanda
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 asura or the hke form has
no right to the property when there is another espoused in an
approved form," because "a woman purchased is not to be
deemed a patni, 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 patni 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 "patni," the "wedded wife who is
chaste." Vijnanesvara allows this right to operate in favour of
the widow only of a divided coparcener {Ibid. pi. 30), but thus
inheriting she obtains an ownership of the property {Ibid. Chap. I.,
sec. 1, pi. 12), notwithstanding her general dependence (Chap. II.,
sec. 1, pi. 25) (/i), extending even to a reversion vested in her
husband (f) 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 {k). She has an estate in her late
husband's property, not a mere usufruct (l), and not the less by
(6) P. C. in Bhoobun Moyee Dehia v. Ram Kishore Acharjee, 10 M. I. A. 279,
312. Moneeram Kolita v. Kerry Kolitany, I. L. E. 5 Cal. 776.
(c) Manu IX., 28. Viramit., Tr. p. 133. Katyayana quoted in M. Williams
In. Wis. p. 169. Manu and Brihaspati, quoted in Smriti Chandrika, Chap. XI.,
sec. 1, paras. 14, 15.
(d) So Varadraja (Burnell's Trans, p. 55) says, inheritance is prescribed by
the texts in which " patni " is used; maintenance only by those in which words
of inferior dignity are employed. See Daya Bhaga, Chap. XI., sec. 1, p. 49
(Stokes's H. L. B. 318); Vyav. May., Chap. IV., sec. 8, p. 2.
(e) Trans, p. 132.
(/) Trans, p. 193.
(g) Col. Dig. Book V., T. 399; and see Smriti Chandrika, Chap. XI., sec. 1,
para. 4.
(h) See also Viraraitr., Trans., p. 136, and Smriti Chandrika, Chap. XI.,
sec. 1, paras. 19, 28.
(i) See Hurrosoondery Debea v. Rajessuri Dehea, 2 C. W. E. 321.
(k) Steele's Law of Caste, 174, ss. Viramitr. loc. cit.
(I) " Assuming her (the widow) to be entitled to the zamindari 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 would
88 HINDU LAW. [BOOK I.
reason of her being authorised to adopt (m). Her husband's estate
completely vests in her by way of inheritance (n), not as a
trust (o). Her position has been assimilated to that of a tenant-
in-tail (p) ; though for the purposes of alienation it has been said
that she " has only a life interest in immoveable property whether
ancestral or not" (q). She represents the estate so that under
a decree against her for arrears of rent due by her husband (r)
not be ascertained who would be entitled to succeed." P. C. in Katama Natchiar
V. Rajah of Shivaganga, 9 M. I. A., at p. 604.
In Moneeram Kolita v. Kerry Kolitany (I. L. E. 5 Cal. 776 ; Chandhri Risal
Singh et al. v. Balwant Singh et al., P. C. June 3, 1918; S. C. L. K. 7 I. A.
115) 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
respects 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. (Ibid. 604.) The succession does not open to the heirs
of the husband until the termination of the widow's estate. Upon the termina-
tion 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.
(m) Umasunduri Dahee v. Sourohinee Dahee, I. L. E. 7 Cal. 288.
(n) Bhala Nahana v. Parbhu Hari, I. L. E. 2 Bom. 67. Viramitr., Trans.
p. 134; Lalchand Ramadayal v. Gumtibai, 8 Bom. H. C. E., 156, 0. C. J.
(o) Bhaiji Girdhur et al. v. Bat Khushal, S. A. No. 334 of 1872 (Bom.
H. C. P. J. F. for 1873, No. 63); Hurrydoss Dutt v. Shreemutty Uppoornah
Dossee et al, 6 M. I. A. 433.
ip) Katama Natchiar v. The Rajah of Shivaganga, 9 M. I. A. 569. See The
Collector of Masulipatam v. Cavaly Vencata Narrainappah, 8 M. I. A. at p. 550.
A widow retains without security proceeds of land taken by a railway company,
Bindoo Bassinee v. Bolie Chund, 1 C. W. E. 125 C. E. She may claim a defini-
tion of her share {Jhunna Kuar v. Chain Sukh, I. L. E. 3 All. 400) when her
husband has been separate, but not when she has been assigned his portion by
way of maintenance in an undivided family. Bhoop Singh v. Phool Kooer,
N. W. P. H. C. E. for 1867, p. 368.
(q) Vishnu Ganesh v. Narayan Pandurang (Bom. H. C. P. J. F. for 1875,
p. 212); Bamundoss Mookerjea et al., v. Musst. Tarinee (7 M. I. A. 169). See
also, however, Lakshmibai v. Gunpat Moroba, 5 Bom. H. C. E. 128 0. C. J.;
and Doe Dem Goluckmoney Dabee v. Digambar Day, 2 Bouln. 193; Girdharee
Singh v. Kolahut, 2 M. I. A. 397.
(r) Kamavadhani Venkata Subbaiya v. Joysa Narasingappa, 3 M. H. C. E.
116 ; Natha Hari v. Jamni, 8 Bom. H. C. E. 37 A. C. J. But see L. E. 2 I. A.
281 below, it).
DIVIDED family: WIDOWS. 89
and a sale in execution the whole interest passes, though, as is
afterwards said (s), 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 (t). " In a suit brought by a third person,
the object of which is to recover or to charge an estate of which
a Hindu widow is proprietress, she will as defendant represent
and protect the estate as well in respect of her own as of the
reversionary interest " (v). " She would," as is said in another
case, *' completely represent the estate, and under certain
circumstances, the statute of limitations might run against the
heirs to the estate, whoever they might be " (w). Those " heirs,"
as pointed out in Musst. BhagbuUi Doll v. Chowdry Bholanath
Thakoor et al. (x), have not, during the widow's life, " 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 (y). 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 second (z). He may, however, protect the estate
(s) The General Manager of the Raj Durbhunga v. Maharajah Coomar Rama-
putsing, 14 M. I. A. 605.
(t) Baijun Doobey et al. v. Brij. Bhookun Lall, L. K. 2 I. 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. Jogul Kishore, I. L. E. 7 Cal. 357.
(v) Seetul Pershad v. Musst. Doolkin Badam Koniour et al., 11 M. I. A. 268.
" The rule 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 Brammoye Dossee v. Kristo Mohun Mookerjee, I. L. E. 2 Cal., at p. 224.
The widow must protect the estate as well as represent it. Nogender Chunder
Ghose V. Sreemutty Kaminee Dossee, 11 M. I. A. 241 ; cf. Jenkins v. Robertson,
L. E. 1 Sc. App., at 122.
(to) Tarinee Churn Gangooly et al. v. Watson <& Co., 12 C. W. E. 413; Nobin-
I chunder et al. v. Guru Persad Doss, B. L. E. 1008 F. B. ; Nand Kumar et al. v.
Radha Kuari, I. L. E. 1 All. 282; Raj. Bullubhsen v. Oomesh Chunder,
I. L. E. 5 Cal. 44; Noferdos Roy v. Modhusoondari, I. L. E. 5 Cal. 732
referring to Shama Soonduri v. Surut Chunder Dutt, 8 C. W. E. 600, and Gunga
Pershad Kur v. Shumbhoo Nath Burmon, 22 C. W. E. 393.
(x) L. E. 2 I. A. 261 ; see also Amritolal Bhose v. Rajonee Kant Mitter,
Ibid. 113; and Doe Dem Goluckmoney Dabee v. Diggumber Day, 2 Bouln. 193;
Rooder Chunder v. Sumbhoo Chunder, 3 C. S. D. A. E. 106 ; Musst. Jymunee
Dibiah v. Ramjoy Chowdree, Ibid. 289; 2 Tayl. and Bell, 279.
(y) Pranputty Kooer v. Lalla Futteh Bahadur Singh, 2 Hay, 608; Shama
Soonduree et al. v. Jumoona, 24 C. W. E. 86,
(z) Protap Chunder Roy v. S. Joymonee Dabee Chowdhrain et al., 1 C. W. E.
I
90 HINDU LAW. [BOOK I,
against an improper alienation or waste (a). That the widow
and the " immediate reversionary heir " together may deal as
they please with the property, is a proposition (h) 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 must be
understood to be all those who are likely to be interested in
disputing the transaction "(c). 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 sue; remoter heirs must assign
a sufficient reason for their claim to sue (d).
The Hindu law does not, it would seem, recognise vested or
contingent remainders or executory devises (e) in the exact sense
of the Enghsh law (/). It assigns to the widow either an owner-
(a) Bhikaji Apajiy. Jagannath Vithal, 10 Bom. H. C. R. 351. CJiottoo Misser
V. Jemah Misser, I. L. E. 6 Cah 198; Rani Anund Kunwar v. The Court of
Wards, I. L. R. 6 Cal. 764, 772. " The mere concurrence 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 Gokaldas, I. L. R. 5 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, Dig. Vyav., Chap. II., § 14, I. A. 3. See article
on Stridhan. In Sia Dasi v. Gur Sahai, I. L. R. 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 afterwards question the transaction. See also
Raj Bulluhh Sen v. Oomesh Chunder Rooz, I. L. R. 5 Cal. 44.
(b) S. Jadomoney Dabee v. Saroda Prosono Mookerjee et al., 1 Bouln. 120;
Mohunt Kishen Geer v. Busgeet Roy and others, 14 C. W. B. 379.
(c) Raj Lukhee Debia v. Gokool Chandra Chowdhry, 13 M. I. A. 228. See
also Koover Goolab Sing v. Rao Kuran Singh, 14 M. I. A. 176; S. C. I. L. R.
2 All. 141 ; Jiwan Singh v. Misri Lai, L. R. 23 I. A. 1 ; Hari Kishan Bhagat v.
Kashi Pershad, L. R. 42 I. A. 64.
(d) Rani Anand Koer v. The Court of Wards, L. R. 8 I. A. 14.
(e) See Musst. Bhoobun Moyee Debia v. Ram Kishore Acharjee Chowdhry^
10 M. I. A. 279.
(/) See Col. Dig. Book V. T. 76, Com. ad fin. A devise to several sons with
cross remainders in favour of the survivors is good under Hindu law, 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 Hindus in India." Willes, J., in theTagore Case, L.R. S. I. A., at
p. 70, quoting Bhoobun Moyee Debia v. Ram 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 Das v. Dharma Narayan Chuckerbutty ^
7 Beng. L. R. 34.
DIVIDED family: WIDOWS. 91
ship of the property merely for use, as in Bengal (g), with a
special power in case of absolute necessity to mortgage or sell
it for her subsistence or other approved purposes (h) ; or else,.
as under the Mitakshara law, an ownership fully vested subject
only to restrictions on alienation (f), at least of immovables (k),
arising from her dependence or the recognition of interests that
the estate must provide for. The analogy of the law of partition
is applied by the Mitakshara, Chap. II., sec. 1, and by the
Subodhini, to the determination of her estate (I). She may sell
or incumber the property principally, besides payment of her
husband's debts, even though time barred, and her own necessary
subsistence (m), for two objects, the fulfilment of religious duties^
and the grant of charitable donations (n). Gifts in Krishnarpan
have been looked on with much favour by the Bombay Sastris,
(g) Daya Bhaga, Chap. XI., sec. 1, pi. 56. Thus it is, perhaps, that in Bengal,
the limited character of her right being emphasised, a surrender by a widow to
the then next heirs immediately vests the property in them in possession, as if
she had then died. Noferdoss Roy v. Modhu Soonduri Burmonia, I. L. E. 6 Cal.
732.
(h) Daya Bhaga, Chap. XI., sec. 1, pi. 62; Chundrahulee Dehia v. Brody,
9 C. W. K. 684 ; Lakshman Ramchandra Joshi and another v, Satyabhamabai,
I. L. E. 2 Bom., at p. 503 et ss. See the opinion of Sir W. Macnaghten in Doe
Dem Gunganarain v. Bulram Bonner jee, East's Notes No. 85, 2 Morley's Dig.,,
at p. 155, but also the judgment of East, C.J., in Cossinaut Bysack et al. v.
Hurroosoondry Dossee et al., No. 124, at p. 198 of the same volume, with whicli
may be compared the remarks of H. H. Wilson in Vol. V. of his works, pp. 1 ss.
(i) See the judgment of Sir M. Westropp, C.J., in Bhala Nahana v. Parbhu
Hari, above quoted ; Vyav. May. Chap. IV., sec. 10, pi. 8 ; Mit. Chap. II., sec. 1,
pi. 8 ; Mit. Chap. II., sec. 1, pi. 31, 32 ; Colebrooke, in 2 Str. H. L. 272, 407 ; and
Ellis, ibid., 208.
(k) Viramit., Transl. p. 138 ss. Bhaiji Girdhur et al. v. Bai Khushal, Bom.
H. C. P. J. F. 1873, No. 63; Ram Kishen Singh v. Cheet Bannoo, C. W. E.
Sp. No. 101; Doorga Dayee v. Poorun Dayee, 5 C. W. E. 141; Mussamut
ThakooT Dayhee v. Rai Balack Ram, 10 C. W. E. 3, P. C.
il) See below Partition; Col. Dig. Book V. T. 87, Comm. ; 2 Str. H. L. 383.
(m) Sakharam v. Jankibai, Bom. H. C. P. J. File for 1878, p. 139; Lala
Awarnath Shah v. Rani Achan Kuar, L. E. 19 I. A. 196 ; Gh. Govind v. Godhole,
I. L. E. 11 Bom. 320; Bhan Babaji v. Mahipati, I. L. E. 11 Bom. 325; Antaji
V. Dattaji, I. L. E. 11 Bom. 36; Murari v. Tayana, I. L. E. 19 Bom. 286;
Venayek v. Govind, I. L. E. 25 Bom. 129; Tika Ram v. Deputy Commissioner
of Bara Banki, L. E. 26 I. A. 97.
in) Narada, Pt. I., Chap. III., Slokas 29, 30, 36, 44; Raj. Lukhee Debia v.
Gokool Chandra Chowdhry, 13 M. I. A. 209; Vyav. May. Chap. IV., sec. 8,.
p. 14; Ganpat v. Tulsiram, I. L. E. 36 Bom. 88.
The separation of the estates of spouses contemplated by the Teutonic 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»
92 HINDU LAW. [BOOK I.
who say that the property may be disposed of for necessaries,
for charity, and for the maintenance of the husband's business (o).
A pilgrimage may be undertaken at the cost of the estate (p),
and a daughter may be portioned out of it (q). The gift of one-
half of the property in " Krishnarpan " (r) would now hardly
be sanctioned, 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 (s). Nor can the mother strip the
widow of the estate by an adoption to the deceased's father (t).
In Bengal, the Courts have given effect to a widow's resignation
of the succession in exchange for an annuity (v), and to her
relinquishment with consent of first ** reversioner " in favour of
second (w).
A widow may borrow money on the estate for its effectual
cultivation (x). But she has no authority to waste the property.
-right to alienate for an urgent necessity or for pious uses according to the
Bipuarian Laws Tit. 48, 49.
(o) See below, Chap. II., S. 14, I. A. 4, Q. 10; and Kupoor Bhuwanee y.
Sevukram Seoshunker, 1 Borr. 448.
(p) Mutteeram Kowar v. Gopaul Sahoo, 11 B. L, E. 416.
(g) Nort. L. C. 638; Steele L. C. 176.
(r) As in Chap. II., sec. 14, I. A. 4, Q. 10; see Ellis in 2 Str. H. L. 408, 410 ;
Kartick Chunder v. Gour Mohun Roy, 1 C. W. E. 48 (a Bengal case).
(s) Q. 726, 727 MSS. Surat, A. D. 1847. Custom seems in many instances to
have assigned to the surviving mother a position superior to that of her son's
widow. Examples are to be found in Borradaile's Caste Eules, and see Steele
L. C. 175. Narada, Transl. p. 19. The very early age at which a Hindu 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 above 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. 528.
(t) Bhoobun Moyee Debia v. Ram Kishore Acharjeie, 10 M. I. A. 279;
Ramkrishna v. Shamrao, I. L. E. 26 Bom. 526 ; Pratapgiri Adoption Suit, P. C.
April 26, 1918. If a widow and a mother adopt different boys, the one adopted
by the widow takes the estate, Q. 1761, MSS. See below Chap. II., sec. 6 A.,
Q. 22.
(v) Shama Soonduree et al. v. Shurut Chunder Dutt et al., 8 C. W. E. 500;
Lalla Koondu Lall et al. v. Lalla Kalee Pershad et al., 22 Ibid. 307; Gunga
Pershad Kur v. Shumbhoonath Burmun et al., 22 Ibid. 393.
(w) Protap Chunder Roy v. S. Joymonee Dabee Chowdhrain et al., 1 C. W. E.
'.98.
{x) Koor Oodey Singh v. Phool Chund et al, 5 N. W. P. E. 197.
DIVIDED family: WIDOWS. 9B
" Although according to the law of the Western Schools (y) (Mitak-
shara, Mithita, and others) the widow may have a power oi
disposing of movable property inherited from her husband (z),
which she has not under the law of Bengal, she is by the one
law as by the other restricted from alienating any immovable
property which she has so inherited " (a), alienating, that is,
without a special justification. Thus she cannot, as against the
collateral heirs, alienate by a mere deed of gift (h). 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
primd-facie case of necessity (c). If, however, the purchaser
acts in good faith, the transaction is not wholly vitiated by
iy) Munsookram v. Pranjeevandas et al., 9 Harr. 396; Oojulmoney Dossee
et al. V. Sagormoney Dossee, 1 Taylor and Bell, 370; Hurrydoss Dutt v. Run'
gunmoney Dossee et al., 2 Ibid. 279; Goluckmoney Dahee v. Diggumher Day,
2 Bouln. 201 ; Bhala Nahana v. Parhhu Hari, I. L. K. 2 Bom. 67 ; Clarke's
Notes of Decided Cases, p. 99; Mnsammat Thakoor Deyhee v. Rai Baluk Ram,
11 M. I. A. 139; Motilal v. Ratilal, 1. L. R. 21 Bom. 170.
{z) See Narada I., III., 30; Pranjeevandas et al v. Dewcoorhai et al., 1 Bom.
H. C. R. 130; Sheo Shankar v. Debi Sahai, L. E. 30 I. A. 202; Gadadhar Bhat
V. Chandrahhagbai, I. L. R. 17, Bom, 690 (F. B.) ; Hari Dayal v. Grish Chunder,
I L. R. 17 Cal. 916; Motilal v. Ratilal, I. L. R. 21 Bom. 170.
(a) Musst. Thakoor Deyhee v. Rai Baluk Ram 11 M. I. A. 176, cited in Brij
Indar Bahadur Singh v. Rani Janki Koer, L, R. 5 I. A. 15. Colebrooke and
Ellis in 2 Str. H. L. 407 ss. ; and Bai Amba v. Damodar Lalbhai et al., S. A.
No. 217 of 1871, decided 11th August 1871 (see Bom. H. C. P. J. F. for 1871).
Steele L. C. 176. Bhugwandeen Doobey v. Myna Bai, 11 M. I. A. 487 ; Raja
Chelikanis Case, L. R. 29 I. A. 156; Madhavram v. Trambaklal, I. L. R. 21
Bom. 739. In Bombay female heirs (for example, widow, mother, daughter-in.-
law, grandmother, widow of a gotraja sapinda) who by marriage come into the
gotra of the malet whom they succeed take only a widow's estate, subject to
restrictions, in the property they inherit from the last male owner, while
daughters and sisters take absolute estates.
(6) Keerut Sing v. Koolakul Sing et al, 2 M. I. A. 331.
(c) Gorya Halya v. Undri et al., S. A. No. 455 of 1873 (Bom. H. C. P. J. F.
for 1874, p. 125) ; Bhau Venkoba v. Govind Yeswant, Bom. H. C. P. J. for 1878,
p. 60; Kamesvar Prasad v. Run Bahadur Singh, I. L. R. 6 Cal. 843 (P. C.) ;
Mayaram v. Motaram, 2 Bom. H. C. R. 313; Melgirappa v. Sihvappa, 6 Bom.
H. C. R. 270, A. C. J. ; Musst. Bhagbutti Daee v. Chowdry Bholanath Thakoor
et al., L. R. 2 I. A. 261; Govind Monee Dossee v. Sham Lai Bysack et al.,
C. W. R., F. B. R. 165; The Collector of Masulipatam v. Cavaly Vencata Nar-
rainappah, 8 M. I. A. 529 ; Cavaly Vencata Narrainappah v. The Collector of
Masulipatam, 11 M. I. A. 619 ; Raj Lukhee Debia v. Gokool Chandra Chowdhry,
13 M. I. A. 209 ; Kooer Goolab Singh et al. v. Rao Kurun Sing, 14 M. I. A. 176 ;
Bhaiji Girdhur et al v. Bai Khushal, Bom. H. C. P. J. F., 1873 No. 63. A
•94 HINDU LAW. [BOOK I.
some excess of the widow's powers as rigorously construed, and
he is not bound to see to the application of the purchase -money (d).
One of the causes justifying an alienation of the estate is
payment of the husband's debts. The widow is bound to discharge
them (e). Not, however, if barred by limitation, according to a
dictum of the Bombay High Court (/), though she is not bound
to avail herself of that plea (g), unlike a managing member in
the case of an ancestral debt, when he must act with the consent
-express or implied of the coparceners. Yet his acknowledgment
would not, it has been said, revive the barred debt, except as
against himself (h). A restriction 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 Hindus. How
strong the obligation is which that imposes .may be seen
from Digest of Vyavasthas, Chap. II., sec. 6 A., Q. 7, and
Narada, Pt. I., Chap. III., 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 (i). For her own
debts the estate after her death is not answerable (k).
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 (l). The rule
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. 59.
(d) Phoolchund Lall v. Rughoohun Suhaye, 9 C. W. R. 108. Compare Hunoo-
manpersaud Panday v. Musst. Bahoyee Munraj Koonweree, 6 M. I. A. 393. See
also Kamikhaprasad et al. v. Srimati Jagadamha Dasi et al., 5 B. L. E. 508.
The creditor must enquire as to the purpose and must explain the instrument to
the widow. Baboo Kameswar Prasad v. Run Bahadur Singh, L. R. 8 I. A. at
pp. 10, 11.
(e) Gopeymohun v. Sehun Cower et al., East's Notes, case No. 64.
(/) Melgirappa v. Shivappa, 6 Bom. H. C. R. 270 A. C. J., supra.
ig) Bhala Nahana v. Parhhu Hart, I. L. R. 2 Bom. 67 supra; Ch. Govind v.
Godhole, 1. L. R. 11 Bom. 320.
(h) Gopalnarain Mozoomdar y. Muddomutty Guptee, 14 B. L. R. 49.
(i) Raj Lukhee Dehia v. Gokool Chandra Chowdhry, 3 B. L. R. 57, P. C. ;
Jiwan Singh v. Misri Lai, L. R. 23 I. A. 1 ; Hari Kishen Bhagat v. Kashi
Pershad, L. R. 42 I. A. 64.
(k) Chundrahulee Dehia v. Brody, 9 C. W. R. 584; Chottoo Misser v. Jeniah
Misser, 1. L. R. 6 Cal. 198.
(I) The Collector of Masulipatam v. Cavaly Vencata Narrainappah, 8 M. I. A.
500. For the grounds which have been deemed to justify a widow's alienation
of property see Umrootram v. Narayandas, 2 Borr. R. 223; Gopal Chunder v.
I
DIVIDED family: WIDOWS. 95
applies to the widow of a collateral succeeding in default of nearer
heirs (m). It will be seen below, Digest of Vyavasthas, Chap. II.,
sec. 9, Q. 7, that the restriction is applied to a mother
inheriting from a son, though such property is commonly
reckoned as stridhan (n). On this point see further in the chapter
on Stridhan.
Two or more Hindu widows of the same man, according to
the general doctrine, inherit from him a joint estate (o) ; and
though they enjoy separately, the estate still remains joint
according to the later decisions (p), 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 (q). On
partition the Vyavahara Mayukha (Chap. IV., sec. 8, pi. 9) says,
" If more than one, they are to divide " (r). 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 Mitakshara also. Chap. II., sec. 1,
para. 5, though omitted by Colebrooke, seems to have been
recognised as the law in Bombay and elsewhere (s), and the right
Gour Monee Dossee et al., 6 C. W. E. 52; Raj Chunder Deb v. Sheeshoo Ram
Deb et al, 7 Ibid. 146; Runjeet Ram v. Mohamed Waris, 21 Ibid. 49; as to the
burden of proof, Munsookram Munkisordas v. Pranjeevandas et al., 9 Harr. R.
596. Ratification of a lease by a widow, Mohesh Chunder Bose et al. v. Ugrakant
Banerjee et al., 24 C. W. R. 127 C. R.
(m) Bharmangavda v. Rudrapgavda, I. L*. R. 4 Bom. 181.
(w) Vinayek Anandrao et al. v. Lukshmibai et al., 1 Bom. H. C. R. 117.
(o) Bhugwandeen Doobey v. Myna Bai, 11 M. I. A. 487 ; each an equal share
according to Thakurain Ramanund Koer v. Thakurain Raghunath Koer and
■another, L. R. 9 I. A. 41. See p. 83.
ip) Shri Gajapathi Nila Mani Patta Mahadevi Garu v. Shri Gajapathi Radha-
mani Patta Maha Devi Garu, L. R. 4 I. A. 212 ; S. C. I. R. 1 Mad. 290. See
p. 83.
iq) Rindamma v. V enkataramappa et al., 3 M. H. C. R. 268; see Dig. Vyav.,
Chap. II., sec. 6 A., Q. 39, 40.
(r) See Stokes's H. L. B. 86, 52 and note (a). To the same effect is the
Smriti Chandrika, Chap. XI., sec. 1, pi. 57. So 2 Str. H. L. 90.
(s) Rumea (applicant) v. Bhagee (caveatrix), 1 Bom. H. C. R. 66, where
■cases are cited from Bengal and the N. W. Provinces. See below. Dig. Vyav.,
Chap. II., sec. 14, I. A. 1, Q. 3, where the answer implies a succession to
separate interests by the two widows, and above, p. 83. 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
according to Vijnanesvara's idea, but rather of an ownership descending on
each as to her own portion, which implies at least a mental partition. Sunder
V. Parbati, L. R. 16 I. A. 186.
96 HINDU LAW. [BOOK I.
by survivorship of one or two widows was not, apparently, recog-
nised in the case of Raj Lukhee Dehia v. Gokool Chandra
Chowdhry (t), see Digest of Vyavasthas, Chap. II., sec. 6 A.,
Q. 35, 36. In Hari v. Vitai it has been held that both according to
the Mitakshara and the Mayukha the widows succeed to each
other's share by survivorship. This is the law in Bengal as well
as in Madras (v).
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 governed by the law
of the Mitakshara or of the Vyavahara Mayukha. These
authorities agree to a certain point and then diverge widely. See
below. Digest of Vyavasthas, Chap. IV., and the chapter on
Stridhan. The widow of the nearest male sapinda of a pre-
deceased husband, there being no male lineal descendant in the
nearest collateral line, was, in Bai AnihaY. Damodar Lalbhai (w),
pronounced on that ground to be the heiress of a Hindu widow
deceased.
§ 1. B. (5) Daughters. — On failure of the first three descendants
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
has the preference over a married one, and a poor married
one over a rich married one.
See Digest of Vyavasthas, Chap. II., sec. 7 ; and for Authorities,
see Digest of Vyavasthas, Chap. I., sec. 2, Q. 4; Chap. II., sec. 7,
Q. 19. Mit. Chap. II., sec. 2, pp. 1 to 4; sec. XI. para 13; and
Vyav. May., Chap. IV., sec. 8, p. 10 ss.
If there are several daughters — which term does not include
illegitimate daughters (x) — living in the same condition — that is,
being all unmarried, or all married and poor, or all married and
rich — they share the estate of their father equally. See Digest
of Vyavasthas, Chap. II., sec. 7, Q. 19. The circumstance of
(t) 13 M. I. A. 209.
(v) I. L. E. 31 Bom. 560; Janoki Nath v. Mathina Nath, I. L. E. 9 Cal. 580;
Sri Pusapati Radhamani Garu v. Pusapati Alkarajeswari, L. E. 19 I. A. 184.
(w) See Bom. H. C. P. J. F. 1871, S. A. No. 217 of 1871.
(x) Bhikya v. Bahu, I. L. E. 32 Bom. 662.
DIVIDED family: DAUGHTERS. 97
having or not having a son is in Bombay indifferent (y). In
competition the poorest daughters inherit the whole estate.
In Srimati Uma Devi v. Gohulanand Das Mahapatra (z) 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." According
to the law of Mithila, an unmarried daughter is preferred to one
who is married ; failing her, married daughters without distinction
are entitled to succeed. In Bengal, the order is, first, maiden
daughters, then those who have, and are likely to have, male
issue, and then others. The daughters who are barren or widows
without male issue are totally excluded. (Ibid. 1 Macn. H. L.
22.)
The preference of the unmarried daughters over the married
ones seems to be founded on the principle that, before all, a
suitable provision for the marriage of daughters must be made.
For the historical origin of the daughter's right of succession,
see Bhau Nanaji Utpat v. Sundrabai (a), Simmani Ammal v.
Mutammal (b), and above p. 79 (a).
Eegarding the case where a Sudra leaves a daughter and an
illegitimate son, se^ § 1. B. (3), above p. 77 ss.
In the case of Amritolal Bose v. Rajoneekant Mitter (d), the
Privy Council say, " There is a great analogy between the case
of widows and that of daughters, though the pretension of
iy) Bakuhai v. Manchahai, 2 Bom. H. C. E. 5; Poll v. Narotum Bapu et al.,
6 Bom. H. C. K. 183, A. C. J.; Jamnahai v. Khimji, I. L. E. 14 Bom. 12;
Totawa v. Basawa, I. L. E. 23 Bom. 229.
{z) L. E. 5. I. A. 40; Audh Kumarai v. Chandra, I. L. E. 2 All. 56.
(a) 11 Bom. H. C. E. 249, 273.
(b) I. L. E. 3 Mad. 265, 267.
(c) The very gradual estabhshment of daughter's rights of succession in
Ireland and other countries in Europe is shown in 0 'Curry's Lectures, Introd.
by Dr. Sullivan, p. 170 ss.
(d) L. E. 2 I. A. 113 ; Sheo Shankar Lai v. Debt Sahai, L. E. 30 I. A. 202 ;
Lai Sheo Pertah Bahadur Singh v. Allahabad Bank, L. E. 30 I. A. 209 ; Gulappa
V. Tayawa, I. L. A. 31 Bom. 463.
H.L. 7
98 HINDU LAW. [BOOK I.
daughters is inferior to that of widows. ' ' Two or more daughters
in parts of India other than Bombay take a joint estate with
survivorship. Although each can alienate her life-estate to be
<iet>ermined by partition, as in the case of two or more widows
succeeding jointly all over India, she cannot create an estate of
severalty (e). Daughters in 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 inheritance, their estate being regarded as absolute (/). They
take, moreover, in the Bombay Presidency, separate interests
excluding the right of survivorship (g), contrary to the rule applied
in Bengal (h) and Madras (z). Nor h.ave they, in Bombay, been
regarded hitherto as mere life-tenants (/c), as to some extent
they appear to be in Madras (l) and Bengal (m). Barrenness is
(e) Kattama Nachiar v. Dorasinga Tevar, 6 Mad. H. C. 310; Amritolal v.
Rajonee Kanta, L. R. 2 I. A. 113; Raja Ghelikani's Case, L. R. 29 I. A. 165;
Kailash v. Kasti, I. L. R. 24 Cal. 839; Gohind v. Qayyam, I. L. R.
26 All. 546; Kanni v. Ammakannu, I. L. R. 23 Mad. 504; and Bai Mangal v.
Bai Rukhmini, I. L. R. 23 Bom. 291.
(/) See Harihhat v. Damodarhhat, I. L. R. 3 Bom. 171, and the cases there
cited, and Bahaji v. Balaji, I. L. R. 6 Bom. 660; Strimuttu Muttu Vizia Ragu-
nada Rani v. Dorasinga Tevar, 6 Mad. H. C. R. p. 310. See, however, Mutta
Vaduganadha Tevar v. Dorasinga Tevar, L. R. 8 I. A. 99, 108 ; a Madras case ;
Jankihai v. Sundra, I. L. R. 14 Bom. 612; Maganlal v. Bai Jadah, I. L. R.
24 Bom. 192; Manilal v. Bai Rewa, I. L. R. 17 Bom. 758; Gulappa v. Tayaioa,
I. L. R. 31 Bom. 453.
ig) Bulakidas v. Keshavlal, I. L. R. 6 Bom. 85, ref ending to I. L. R. 3 Bom.
171 supra; Vithappa v. Savitri, I. L. R. 34 Bom. 510; Madhavram v. Tram-
haklal, I. L. R. 21 Bom. 739, sisters and daughters take absolute estates.
(h) Amritolal Bose v. Rajoneekant Mitter, L. R. 2 I. A. 113.
(i) 6 Mad. H. C. R. 310 supra (e).
(k) See I. L. R. 3 Bom. 171, and the cases there fcited.
(l) Simmani Ammal v. Muttammal, I. L. R. 3 Mad. at p. 268.
(m) Dev Pershad v. Lujoo Roy, 20 C. W. R. 102; Dowlut Kooer v. Burma
Deo Sahoy, 22 C. W. R. 55, C. R. quoting The Collector of Masulipatam v.
Cavaly Vencata Narrainappah, 8 M, I. A. 551, and Mussumat Thakoor Deyhee
V. Eat Baluk Ram, 11 M. I. A. 172. But in 1 Str. H. L. 139, 2nd ed. (pp. 160-
161, 1st ed.) it is said : " According 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 postponing 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
DIVIDED family: DAUGHTER'S SONS. 99
not, as in Bengal, a cause of exclusion (n), the theory on which
the daughter is admitted in Bombay being essentially different.
Unchastity is no ground for exclusion either of a daughter or
a mother from inheritance; but the High Court of Bengal has
held that unchastity would operate as a bar. The Dayabhag,
however, does not support the conclusion arrived at by the High
Court, and the cases are distinguishable on the ground that the
women in question were outcasts. Even in Bengal unchastity
subsequent to inheritance will be of no effect (o).
§ 1. B. (6) Daughter's Sons. — On failure of the three first descen-
dants in the male line, of adopted sons, of widows, and of
daughters, a daughter's son inherits the estate of a separate
grihastha, and the separate property of a united coparcener.
See Digest of Vyavasthas, Chap. II., sec. 8; and for Authorities,
see Digest of Vyavasthas, Chap. II., sec. 8, Q. 1 and 5.
Eegarding the case where a Sudra leaves an illegitimate son,
and a daughter's son, see above, § 1. B. (3), pp. 80, 81.
answer to the claim of the son's son, grounded on the property having belonged
to his father. Neither, according to Jimuta Vahana, on failure of issue,
does the inheritance, so descending on the daughter, go, like her stridhana,
to her husband surviving her, but to those who would have succeeded, had it
never vested in such daughter; but by the Southern 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 indispensable 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 recognise a possible difference in favour
of the daughter \_HuTrydoss Dutt v. Sreemutty Uppoornah Dossee, 6 M. I. A.
445], though this is now superseded by what is said in Muttu Vaduganadha
Trevar's Case [L. B. 8 I. A. 99, 109] against women's transmitting to their
own heirs property which they take by inheritance.
(n) Simmani Ammal v. Muttamal, I. L. K. 3 Mad. 265.
(o) Adoyapa v. Rudrava, I. L. E. 4 Bom. 104; Basappa v. Rayava, I. L. B.
29 Bom. 91; Tara v. Krishna, I. L. B. 31 Bom. 490; Kojiyadu v. Lakshmi,
I. L. B. 5 Mad. 149; Vedammal v. Vedanayaga, I. L. B. 31 Mad. 100;
Ganga v. Ghasita, I. L. B. 1 All. 46; Dalsingh v. Dani, I. L. B. 32 All. 155;
Baldeo Singh v. Mattura Kunwar, I. L. B. 33 All. 702 ; Ramananda v.
Raikishori, I. L. B. 22 Cal. 347 (daughter) ; Ramnath v. Durga, I. L. B. 4 Cal.
550 (mother); Kerry Kolitany v. Moneeram, 13 B. L. B. 48; S. C. L. B.
7 I. A. 115.
100 HINDU LAW. [book I.
If a separate householder leaves two daughters, one of whom
dies after her father, but before the division of his estate has
been effect-ed, 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 Eemarks to Digest of
Vyavasthas, Chap. II., sec. 7, Q. 1 and 3. This view is supported
by the analogous case of the " brother and the brother's sons,"
regarding which the Mitiakshara, Chap. II., sec. 4, para. 8, states
as follows : —
" In case of competition between brothers and nephews, the
nephews have no title to the succession, for their right of inheri-
tance 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 consequently devolved on
his brothers indifferently, 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 " (p).
That the principle laid down in this passage is applicable also
to the case of the daughters and daughters' sons follows 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 effect may have been given. For, the Hindu
law-books often give, as the Sastris express it, only the ** dik-
pradarsana," the indication of the direction, not exhaustive rules.
Examples showing that the authors of the Mitakshara and
Mayukha 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 § 1. B. (5)] is
given by Gautama with respect to the succession to their mother's
stidhana, (see Gautama 28, su. 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
(p) See Ramprasad Tewarry v. Sheochurn Doss, 10 M. I. A. 504.
DIVIDED family: DAUGHTER'S SONS. 101
qualification founded on special texts (q). See Digest of Vyavas-
thas, Chap. IV., B. § 1, 4; Chap. II., sec. 8, Q. 1. Where
daughters are regarded as taking, as a class, with survivorship
as in Madras or Mithila and elsewhere where the Mitakshara pre-
vails except in the Bombay Presidency (r) [see above § 1. B. (5)]
a different rule prevails. The son is not such a co-owner with
his mother, according to that doctrine, as to replace her in the
group of successors to her father (s). It is consistent with this
that daughter's sons take per capita {t) not per stirpes as they
would by identification in rights with their mothers. But in the
case of two sons of an only daughter of a Hindu succeeding on
her death to his estate, in Chelikani Venkayyamma v. Ch.
Venkatararnanayamma (v), it was held by the Judicial Committee
that they took jointly with survivorship. In Bat Parson v. Bai
Somli (w), however, the Bombay High Court has held that the
property inherited by sons from their mother is, according to both
the Mitakshara and the Mayukha, a tenancy in common. The
Madras High Court seem to favour the same view (x). See Digest
of Vyavasthas, Chap. 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 expression, had become vested in possession in their
father before his death.
The text of Yajnavalkya on which the different doctrines are
based is not in itself sufficiently explicit to make either of them
untenable. The former is the one more consonant to Vijnanes-
vara'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 daugliter's
daughters gives a liberal, though not indisputable, effect to the
text, instead of reducing the daughter's right to a mere life estate
iq) See Mit. Chap. II., sec. II., para. 6; Chap. 1. sec. XII.
(r) Surja Kumari v. Gandharp, 6 S. D. 140, 168 ;Chelikani Venkayyamma
V. Ch. Venkatararnanayamma, L. K. 29 I. A. 160.
(s) Amritolal v. Rajoneekant, L. R. 2 I. A. 113.
(t) Nag ash v. Gururao, I. L. R. 17 Bom. 305.
(v) L. R. 29 I. A. 156, overruling Jasoda v. Sheo, I. L. R. 17 Cal. 33, and
Saminadha v. Thangathanai, I. L. R. 19 Mad. 70, referred to in Sheo Shankar
v. Debt Sahai, L. R. 30 I. A. 202.
(w) I. L. R. 36 Bom. 424.
(x) Karuppai Nachiar v. Sankara, I. L. R. 27 Mad. 300.
102 HINDU LAW. [book I.
interpolated in the regular 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 a female
by inheritance. It goes, he says, to heirs according to such
relations as if she were a man (y), and the first in this series is
the son or group of sons of the last owner. Daughters, according
to him, take separate interests (z) separately heritable. The
daughter's sons take as full owners, and each becomes a fresh
stock of descent on whose death his own heirs succeed. (Muttuva-
dugaridtha v. Periasami, L. E. 23 I. A. 128.) Daughter's
daughters do not succeed anywhere except in Bombay and Madras.
{Narasimma v. Mangammal, I. L. R. 13 Mad. 10; Nallanna v.
Pounal, I. L. R. 14 Mad. 149; V enhatasuhramaniam v. Thayar-
ammal, I. L. R. 21 Mad. 263; Narasimha v. Surenami, I. L. R.
31 Mad. 321.)
§ 1. J3. (7) The Mother. — On failure of daughters' sons, the
mother {except in Gujerat) inherits the estat.e of a separate
householder, the separate estate of a united coparcener, as
also the estate of a paying student (upakurvana Brahmachari).
See Digest of Vyavasthas, Chap. II., sec. 9; and for Authorities,
see Digest of Vyavasthas, Chap. I., sec. 2, Q. 4; and Chap. II.,
sec. 9, Q. 1.
A mother who remarries or is guilty of adultery does not lose
her right to the succession to the estate of the son by her first
husband, as she certainly would under the strict Hindu law, by
forming a connection inconsistent with her retaining a place in
the family of her first husband or even in the caste. In the case
of Akorah Sooth v. Boreeanee (a) it was ruled that a widow re-
marrying forfeits only the right she has then actually inherited,
not her right of inheritance to her son then living, and this has
been approved of by the Bombay High Court in Ghamar Haree v.
Kashi I. L. R. 26 Bom. 388, and Basappa v. Rayava, I. L. R.
29 Bom. 91. See p. 9.9 (Daughter's and mother's unchastity).
iy) Vyav. Mayukha, Chap. IV., sec. X., para. 26.
(z) "Vyav. Mayukha, Chap. IV., sec. VIII., para. 10.
(a) 10 C. W. E. 35 H. Id. 82
DIVIDED FAMILY : FATHER. 103
Stepmothers are not included in the term ''mother." Eegard-
ing the rights of a stepmother, see Vyavasthas, Chap. II.,
sec. 14, I. A. 2, Kemark to Q. 1 ; and Russobai v. Zulekhahai (b).
The same is the rule in Bengal, Madras, and Mithila (c).
The Vyav. May. Chap. IV., sec. 8, para. 15, and the Dayabhaga
place the father first, and next the mother, and the High Court
of Bombay pronounced in favour of this order of succession for
Gujarat in Khodabhai Mahiji v. Bahdhur Dalu et at. {d).
An adoptive mother is included in the word " mother," and
therefore succeeds before the adoptive father (e).
The estate taken by a mother succeeding to her son is said
to be like that taken by a widow from her husband (/).
§ 1. B. (8) The Father. — On failure of the mother, the father
inherits the estate of a separate householder, of a paying
student, and the separate estate of a united coparcener. In
Gujarat the father has precedence of the mother as heir to
their sons.
See Digest of Vyavasthas, Chap. II., sec. 10; and for Authorities,
see Digest of Vyavasthas, Chap. II., sec. 9, Q. 1; and Chap. I.,
sec. 2, Q. 4.
§ 1. B. (9) Brother op the Whole Blood. — On failure of the
father, full brothers succeed to the estate of a separate
Grihasta, &c.
See Digest of Vyavasthas, Chap. II., sec. II.; and for
Authorities see Digest of Vyavasthas, Chap. I., sec. 2, Q. 4; and
Chap. II., sec. 11, Q. 4; Vyav. May. Chap. IV., sec. 8, p. 16.
(b) I. L. E. 19 Bom. 707, where she succeeded in preference to the stepson's
paternal uncle's son, on the ground of being a gotraja sapinda.
(c) Lakhi v. Bhairah, 5 S. D. 315, 369; Alhadmoni v. Gokulmoni, S. D, of
1862, 563; Tahaldai v. Gaya Pershad, 1. L. E. 37 Cal. 214; Kesserhai v. Valah,
I. L. E. 4 Bom. 188; Mari v. Chinnammal , I. L. E. 8 Mad. 107 ; Punga Seethai
V. Nachiyar, 1. L. E. 14 Mad. L. T. 596.
(d) I. L. E. 6 Bom. 541 ; Balkrislina v. Lakshman, I. L. E. 14 Bom. 605 ;
Hembuta v. Coluck Chunder, 7 S. D. 108, 127 (Dayabhag).
(e) Anandi v. Hari Suba, I. L. E. 33 Bom. 401.
(/) Narsappa Lingappa v. Sakharam, 6 B. H. C. E. 215 ; Tuljaram Morariji v.
Mathuradas et al., I. L. E. 5 Bom. 662. See also the chapter on Stridhana, and
the references given above, pp. 87j 88; Sheo Shankar v. Debt Sahai, L. E.
30 I. A. 202, where the law is fully discussed; Chenava v. Basangavda, I. L. E.
21 Bom. 105.
104 HINDU LAW. [BOOK I.
In case a brother dies leaving more than one brother as heirs,
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, in whom his right had actually vested, leaves
a son, then this son will take the share of the estate which should
have fallen to his father. See above § 1. B. (6) Mit. Chap. II.,
sec. 4, p. 9; Viramit., Transl. p. 195 (g).
Eepresentation is not recognised 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. Chap. II.,
sec. 4., paras. 1, 5, 7. Viramit. Tr. p. 195. See below,
Vyavasthas, Chap. II., sec. 11, Q. 6; and Digest of Vyavasthas,
Chap. II., 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 fathers becoming
owners of property, and those who by analogy take through a
mother from the maternal grandfather (h), when their mother has
died between the decease of their grandfather and the actual
partition of his property.
§ 1. B. (10) Half-Brothers. — On failure of brothers of the full-
hlood, half-brothers inherit the estate of a separate house-
holder, &c.
See Digest of Vyavasthas, Chap. II., sec. 12 ; and for Authority,
see Digest of Vyavasthas, Chap. II., sec. 11, Q. 4.
The Vyav. May. includes the half-brother among the Gotraja
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 Mayukha
(g) Some surprise may be felt that this rule should have seemed necessary.
But according to Hindu notions as possession is generally necessary to the com-
pletion of ownership, so separate possession is essential in theory to the
completion of a separate ownership of a share derived from a prior joint owner-
ship 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. Burham v. Punchoo, 2 Suth. 123; Chandrika Bakhsh v. Muna Koer,
L. K. 29 I. A. 70.
(h) See Vyav. May. Chap. IV., sec. 2, para. 1; sec. X., para. 26; above § 1. B.
(6); Sarasvati Vilasa § 7, 21, 335.
DIVIDED FAMILY : SONS OF HALF-BROTHERS. 105
by the High Court for cases arising within its Original Juris-
diction. 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 (z). But beyond
these limits the Mitakshara is generally preferred and regulates
the succession as here indicated (k). In this construction the
Viramitrodaya, Transl. p. 194, and the Dhaya Bhaga agree, see
Daya Bhaga, Chap. XI., sec. 5, pi. 10-12. So also the Smriti
Chandrika, Transl. p. 183.
§ 1. B. (11) Sons of Brothers of the Full Blood. — On failure
of half-brothers, sons of brothers of the fulUblood inherit the
estate of a separate householder, &c.
They take per capita. The word ** son " includes an adopted
son {I). According to the interpretation put by the Madras High
Court of the word " putra " in the Mitakshara, Chap. II., sec. 4,
sub-sec. 7; sec. 5, sub-sees. 1, 4, 5, has a restricted meaning,
and does not include grandsons (m), but the Allahabad High
Court has held it to include grandsons (n), and the same view is
held by the Bombay High Court (o).
See Digest of Vyavasthas, Chap. II., sec. 13; and for
Authorities, see Digest of Vyasvasthas, Chap. I., sec. 2, Q. 5; and
Chap. II., sec. 11, Q. 4.
§ 1. B. (12) Sons of Half-Brothers. — On failure of sons of full-
brothers, sons of half-brothers inherit the estate of a separate
householder, &c.
Authorities.
See Digest of Vyavasthas, Chap. II., sec. 11, Q. 4.
Eegarding the case in which brothers' sons inherit together
with grothers, see above, Eemark to § 1. J5. (9). The deceased
(t) Sakharam Sadashiv v. Sitabai, I. L. R. 3 Bom. 353, referring to Vinayak
Anandrao v. Lukshmibai, 9 M. I. A. 516.
(k) See Krishnaji v. Pandurang , 12 Bom. H. C. R. 65.
(l) Brojo v. Gouree, 15 Suth. 70; Brojo v. Sreenath Base., 9 Suth. 463;
Gooroo V. Kylas, 6 Suth. 93.
(m) Suraya Bhukta v. Lakshminarasamma, I. L. R. 5 Mad. 291, followed in
Chinnasami v. Kunja Pillai, I. L. R. 35 Mad. 152
in) Kabain Rai v. Ramchander, I. L. R. 24 All. 128 ; Buddha Singh v. Laltu
I. L. R. 34 All. 663, affirmed in L. R. 42 I. A. 208.
(o) Kashibai v. Sitabai, 13 Bom. L. R. 552.
106 HINDU LAW. [BOOK I.
brother is represented by his son, his right having become vested
in possession, to use the Enghsh phrase, before his death.
The Vyav. May. places half-brothers' sons amongst the
Sapindas. A brother's son who is a Sapinda excludes a sister who
comes in as a Gotraja Sapinda. This is both according to the
Mitakshara and the Mayukha (p).
§ 1. B. (13) The Paternal Grandmother. — On failure of sons of
half-brothers, the paternal grandmother inherits the estate
of a separate householder, &c.
Authorities.
See Digest of Vyavasthas, Chap. II., sec. 13, Q. 7; Mit.
Chap. II., sec. 5, p. 2.
The place assigned to the paternal grandmother is a special
one, due 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 Manu (q) next after the mother (r). The
Mitakshara does not follow Manu in this, but uses the text to
support the place assigned to her as the first of the jnatis or
gentiles. The postponement of her to the father, brother, and
nephew is grounded on the principle that these are specified in
Yajnavalkya 's text, while she is not. The fact is that the two
Smritis as they stand are inconsistent. The passage in Manu
was probably uttered 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 (s), but the mention of the grandmother shows a
capacity on her part to inherit which Vijnanesvara makes specific
in his comment on Yajnavalkya 's text, which does not itself
mention her as an heir (t). She takes a limited estate for life
only (v).
ip) Mulji V. Cursando, I. L. E. 24 Bom. 568. .
(q) Chap. IX. 217.
(r) Mit. Chap. II., sec. 1, p. 7.
(s) This has occurred in the Roman law as Savigny shows, System, Vol. III.
App. VIII. § VIII., and Text § 115.
(t) See Lulluhhai v. Mankuvarhai, 1. L. R. 2 Bom. at p. 438 ss. Vijanesvara,
in commenting on Yajnavalkya, was constrained to give his own Rishi pre-
cedence and to construe other smritis in accordance with it. See above pp. 14
and 16 notes.
(c) Madhavram v. Tramhaklal, I. L. R. 21 Bom. 739; Dondi v. Radhahai,
I. L. R. 36 Bom. 646.
DIVIDED FAMILY : GOTRAJAS. 107
§ 1. B. (14) GoTRAjA Sapindas. — On failure of the patemaX grand-
mother, the Gotraja Sapindas — that is, all the males of the
deceased's family [gotra) related to him, within six degrees
downwards and upivards, together with their respective wives
— are entitled to inherit the estate of a separate householder.
It would seem that the Gotraja Sapindas inherit according
to the nearness of their line to the deceased — that is, that
the fourth, fifth, and sixth descendants in the deceased's
own line (santana) should be placed first, next the father's
Une — namely, the deceased's brother's second, third, fourth,
fifth, and sixth descendants, next the grandfather and his
descendants to the sixth degree, and so on. In Gujarat the
sister is placed at the he^ad of the Gotraja Sapindas.
Authorities.
See Digest of Vyavasthas, 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 succession to property on failure of the heirs
individually specified has given rise to many controversies amongst
the Hindu lawyers. The rule that a jnati 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
gotra jas (of the family or bom in the family), and the kind of
connection intended by these terms has been differently under-
stood by different commentators. The nearer relatives of the
propositus, as his son, his father and his brother, are obviously
jnatis 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
family gives her in one sense a new " gotrajatva, " or family
•connection, and in the same sense deprives her of connection
with her family of birth. Vijnanesvara accordingly passes her
by in favour of the male gotraja sapindas; but it has now been
held that she is an heir, according to the Mitakshara, and comes
in immediately after the grandmother {w). Nilakantha, on the
other hand, influenced no doubt by the growing strength of
natural affections, as opposed to a strictly logical development
{w) Bhagwan v. Waruhai, I. L. E. 32 Bom. 300.
108 HINDU LAW. [BOOK I.
of the religious agnatic system (x), gives her a place next to the
grandmother as having a gotrajatva (= family connection) through
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 (y) ; the possibility and the extent of the transmission
of hereditary right through daughters of collaterals; 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 writers have
given inconsistent though almost equally ingenious answers. The
Vyavahara Mayukha's scheme differs essentially from that pro-
pounded in the Mitakshara and followed by the Viramitrodya (z),
which, however, has itself been understood in different ways by
subsequent authors and by the Sastris. The nicer points of the
subject have been treated in the principal authorities, not only
on discordant principles, but in a fragmentary way, which leaves
room for much doubt. Under these circumstances it is hardly
to be expected that any system, however carefully deduced from
the authorities, wiU gain universal assent. We will, however,
state the principles which seem the most in harmony with those
involved in the authoritative text, so far as these go, and which
have been generally followed by the Sastris 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.
(x) A similar exception in favour of sisters occurred under the Koman law
while women generally were thought unfit for inheritance.
(y) In Bengal, the Bandhus come next after the nearer Sapindas — that is,
before descendants from ascendants beyond the great grandfather. Roopchurn
Mohapater v. Anundlal Khan, 2 C. S. D. A. K. 35; Deyanath Roy et al. v.
Muthoor Nath, 6 C. S. D. A. K. 27. In Madras, according to the Smriti Chan-
-drika Chap. XI., the male gotrajas only come in next after brothers sons, and
after them the samanodakas limited to two descendants from each ascendant
above the propositus.
{z) See also the Sarasvati Vilasa, § 581, 586 ss.
DIVIDED FAMILY : GOTRAJAS. lOO"
In dealing with the materials now embraced under Digest of
Vyavasthas, 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 Vijnanesvara and by
Nilakantha. We propose to state their views in connection
with the distribution of the answers referrible to the one and to
the other authority.
The term ** Gotraja " designates, according to the Mitakshara,
Mayukha, and Manu IX. 217 — 1, the paternal grandmother;
2, the Gotraja-Sapindas; and 3, the Gotraja-Samanodakas. 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 Mitakshara, the Viramitrodaya,
and the Mayukha. The Mitakshara (with which the Viramitro-
daya agrees perfectly) 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; 3, the
father's brothers' sons (b); 4, the paternal great-grandmother;
5, the paternal great-grandfather; 6, the paternal grandfather's
brothers; 7, the paternal grandfather's brother's sons; and this
order of heirs is to be repeated up to the seventh ancestor. A
paternal uncle's son excludes the widow of another paternal
uncle of the deceased on the ground that females in each line of
the gotrajas are excluded by any males existing in that line within
the limits to which the gotraja-sapinda relationship extends (c).
For the same reason a paternal uncle 's grandson excludes another
paternal uncle's widow (d).
The Mayukha lays down the following order : —
1, The uterine sister; 2, the paternal grandfather and the half-
brothers, as joint heirs; 3, the paternal great-grandfather, 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
(a) See Digest of Vyavasthas, Chap. II., sec. 13, Q. 7,
(b) " Sons " includes grandsons. Budha Singh v. Laltu Singh, L. E. 42 I. A.
'208, 112 and 119.
(c) Rachava v. Kalingapa, I. L. E. 16 Bom. 716 ; Nahalchand v. Hemchand,
fl. L. E., 9 Bom. 31.
(d) Kashihai v. Raghunath, I. L. E. 35 Bom. 389.
110 HINDU LAW. [book I.
remarks (Mit. p. 350. Note), it is by no means clear how the
remoter heirs are to follow one another (e).
Though in general the Mitakshara possesses the greatest
authority, and it would therefore seem necessary to follow
its order, it was impossible altogether to neglect the Mayukha,
since in Gujerat and in the island of Bombay the Mayukha
partially prevails over the Mitakshara (/), and the sister
is there allowed to inherit immediately after the paternal
grandmother (g). 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
Vyavasthas, Chap. II., sec. 14, these have been subjoined to
those from Gujarat, though, according to the Mitakshara, they
would more properly be included in sec. 15.
The cases which refer to the right of the Gotrajas, not
mentioned in the Mitakshara and Mayukha, form the second
division (B), and have been classed under two headings; a, males;
h, females; because the rights of the latter depend on principles
less generally accepted than those recognised 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 confidently
asserted their rights (see Digest of Vyavasthas, Chap. II., sec. 14,
I., B. a. 1 and 2) and quoted as authority for their opinions the
passage of the Mitakshara (Vyav. /. 55, p. 2, 1. 1; see Chap. I.,
sec. 2, Q. 4; and Stokes, H. L. B. 427), which names the Gotrajas
as heirs. It appears, therefore, that they considered the series
of Gotraja-Sapinda heirs, given by Vijnanesvara (Colebrooke,
Mit. I. c.) as not exhaustive, nor intended to exclude others than
(e) Nilakantha probably aimed at governing succession subject to the express
provisions of the Sastris in favour of specified relatives by a principle of
proximity of degree, counting as in the Roman law every step up and down, and
making all at an equal distance equal sharers in the estate of the propositus. See
Laluhhai v. Mankoovarbai, I. L. R. 2 Bom. 388. The other authorities follow
the principle of the Teutonic 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.
(/) See Lalloohhoy v. Cassihai, L. R. 7 I. A. 212; and, above, Book I.
(g) Vinayekrao Anandrao v. Lakshmibai, &c., 1 Bom. H. C. R. 117; S. C.
9 M. I. A. 517.
DIVIDED family: gotrajas. Ill
those named, but only as an exemplification of the general
doctrine. The same opinion has also been advocated by the
Sastris in other parts of India, where the Mitakshara is the ruling
authority (h), as well as by Mr. Vinayak Sastri, the late Law
Officer of the High Court of Bombay. Moreover, this view was
adopted by Mr. Harrington in the case of Dutt Zabho Lannauth
Tha and others v. Rajunder Narain Rae and Coower Mohinder
Narain Rae (i), and the Privy Council, on appeal, confirmed his
judgment. Mr. Harrington, after having proved that the word
putra, *' son," is used in the Mitakshara and Subodhini as a
general term for descendant or male issue, says in his review of
the opinions of the Sastris (p. 157): —
** The same construction must, I think, be put 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 (k), and this interpretation is indeed indicated by
other expressions of the same paragraphs, viz., on failure of the
father's and on failure of the paternal grandfather'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 the Mitakshara (I), as well as
(h) See R. Sreekaunth Deybee v. Sahih Perlhad Sein, Morley, Digest, New
Series, p. 187, No. 14; Rutcheputty Dutt et al. v. Rajunder Narain Rae et al.,
2 M. I. A. 132, 168.
(i) Moore, Indian Appeals, I.e. This view is confirmed in Bhyah Rama Singh
V. Bhyah Ugur Singh, 13 M. I. A. 373. So in Thakur Jihnath Singh v. The
Court of Wards, 5 Beng. L.E. 442, and Parasara Bhattar v. Rangaraya Bhattar,
1. L. E. 2 Mad. 202.
(k) Colebrooke, Mit. p. 350; Stokes's H. L. B. 446-7 :—
"4. Here on failure of the father's descendants, the heirs are successively
the paternal grandmother, the paternal grandfather, the uncles, and their sons.
" 5. On failure of the paternal grandfather's line, the paternal great-grand-
mother, the great-grandfather, his sons and their issue inherit. In this manner
must be understood the succession of kindred belonging to the same general
family, and connected by funeral oblations."
In Budha Singh v. Laltu Singh, L. E. 42 I. A. 208, it has been held that vhe
word " putra " in sections 4 and 5 Chap. II. of the Mitakshara, as interpreted
by the Benares School, must be understood in a generic sense in the case of
lineal descendants of the deceased, and the descendants in each ascending line
up to the fixed limit should be exhausted at any rate to the third degree before
making the ascent to the next in order of succession. In consequence a great
grandson of the grandfather of a deceased person is preferred to the grandson of
the great-grandfather.
(l) Colebrooke, Mit. p. 351; Stokes's H. L. B. 447.
112 HINDU LAW. [BOOK I.
other books of law, which expressly state the succession of kindred
belonging to the same family, as far as the limits of knowledge
as to birth and name extend " (m).
But the opinion that Vijnanesvara's series of heirs is not
intended to be exhaustive may be strengthened by some further
arguments. Firstly, if it were intended to be exhaustive, not
only would the provision that the Gotraja-Samanodakas may
inherit as far as name and knowledge of birth extend, as Mr.
Harrington observes be rendered nugatory, but virtually all the
Samanodakas and one line of the Sapindas would be excluded
from the succession. For it is hardly possible that the seventh
ancestor and his sons and grandsons could be alive at the time
of the death of the seventh descendant; and this improbability
increases with every grade among the Samanodakas, who extend
to the fourteenth ancestor and are to inherit in the same order
as the Gotraja- Sapindas — that is, 1, female ancestor; 2, male
ancestor; 3, their sons; 4, and grandsons. But, secondly, the
definition of the word Sapinda, which Vijnanesvara gives in the
first chapter of the Mitakshara, clearly shows that all the unmen-
tioned descendants of the lines of the various ancestors, down
to the seventh degree, as well as the descendants of the deceased
person down to the seventh, inherit. For Vijnanesvara says
(Acharakanda /. 6, p. 1, 1. 15) (n). when he explains the verse I,
52, of Yajnavalkya, 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
(m) Compare also Shoodyan v. Mohun Pandey et al. Eeports of S. D. A.,
N. W. P. 1863, II. p. 134; and Duroo Singh v. Rai Singh et al, ihid. 1864,
p. 523.
(n) The Samskaramayukha adopts this theory. The Dharmasindhu states
merely the two theories, leaf 63 (Bombay Edition), Part I. (p. 353, Marathi,
Samvat 1931). It is glanced at in Vyav. May. Chap. IV. sec. 5, p. 22, and
supported in the Datt. Mim. sec. 6, para. 9, by a reference to Manu.
DIVIDED family: gotrajas. 113
entered into (his own). Just so is (the son of a Sapinda-relation)
of his mother, because particles of his mother's body have entered
(into his). Likewise (the grandson stands in Sapinda-relationship)
to his maternal grandfather and the rest through his mother,.
So also (is the nephew) a Sapinda-relation 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 the word Sapinda is used, there exists
(between the persons to whom it is applied) a connection with
one body, either immediately or by descent " (o).
After refuting some objections which might be raised against
this definition, and after discussing the latter part of Yajn. I. 52,
and the first half of Yajn. I. 53, Vijnanesvara again recurs to
the question, who the Gotraja-Sapindas are. Mitakshara, /. 7,
p. 1, 1. 7: —
" In the explanation of the word * asapindam ' (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, there-
fore the author (Yajnavalkya) says: —
Vs. 53: " After 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-relationship 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)
(o) In Amrita Kumari Debt v. Lakhinarayan, 2 Beng. L. R. 33, is a passage
I to the same effect from Parasara Madhava, at page 34.
H.L. 8
114 HINDU LAW. [book I.
would apply to all men, is restricted in its signification, just as
the word pankaja (which etymologically 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, the one's self (counted) as the seventh
(in each case), are Sapinda-relations. In case of a division of
the line also, one ought to count up to the seventh (ancestor),
including him with whom the division of the line begins (for
example, 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 Dattakamimamsa, sec. VI. pi. 27,
28 and notes; Stokes's H. L. B. 605-6, and Bhyah Ram Sing
V. Bhyah Ugur Sing (p).
From this passage the following conclusion may be drawn (q) :
1. Vijnanesvara supposes the Sapinda-relationship to be based,
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 with
the wives of the males amongst them, are Sapinda-relations to
each other (r).
The bearing of these points on the definition of the ** Gotraja-
Sapindas," as well as on the interpretation of the passage
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,
(p) 13 M. I. A., p. 380.
iq) See Amrita Kumari Debt v. Lakhinarayan, 2 Bang. L. E. 33 F. B. K.
See also Coulanges La Cit6 Antique, 64. Mitramiara 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 Gotrajas. Viram, Tr. p. 91. At
p. 196 ff. he adopts Vijnanesvara 's order of succession amongst the Gotrajas,
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 Baudhayana, Pr. 1, Adhy. 5, Kand. 11, Sutra 1-27.
(r) See Lakshmibai v. Jayaram Hari et al., 6 Bom. H. C. R. 152 A. C. J.;
and Lullubhai v. Mankuverbai, I. L. R. 2 Bom. 388.
DIVIDED FAMILY : GOTRAJAS.
115
and who belong to one family — that is, bear one name. If this
inference is accepted, all these persons are entitled to inherit
according to the passage of the Mitakshara given above (s).
The only remaining question is, in w^hich order the Gotraja-
Sapindas, who are not mentioned in the Mitakshara, 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 (t), 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 Mitakshara, but in all
(5) The following table will serve to show the extent of the Gotraja-Sapinda
relationship, as far as the males are concerned : —
— 7
(t) Chinnasami v. Kunju Pillai, I. L. E. 35 Mad. 152; cf. Kahian Rai v.
Ramchander, I. L. B. 24 All. 128.
116 HINDU LAW. [BOOK I.
the law books of the Benares Schools and in the Mayukha (v).
Besides, under this arrangement, 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 persons, 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
Mayukha, or placed after the paternal grandmother, and before
the paternal grandfather — namely, 1, paternal grandmother;
2, deceased's great-great-grandsons, or remoter descendants to
No. 7, if living ; 3, brother's grandsons, brother's great-grandsons,
brother's great-great-grandsons and their sons; 4, paternal
grandfather. The second arrangement seems to be the more
satisfactory, as it follows the principle indicated by the Mitakshara,
that the succession is to go to the direct and to the several
collateral lines, after providing for the grandmother conformably
to Manu'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 immediately
abandoned for remote lineal descendants of the propositus 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 recognised
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 Yajnavalkya, if not according to its obvious sense, yet
in some sense, though an entirely forced one (w).
(v) See Colebrooke, Mit. p. 349; Stokes's H. L. B., p. 446; Vyav. May.
p. 106; Stokes's H. L. B. 88. So also Visvesvara in 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. 581. But the
doctrine above set forth is recognised as that of the Mitakshara, T. Jihnath Sing
V. The Court of Wards, 5 B. L. E. 443; Bhyah Ramsing v. Bhyah Ugur Singh
et al., 13 M. I. A. 373. The Smriti Chandrika, Chap. XI. sec. 5, para 9 ss,
limits the succession to the (collateral) descendants, excluding the ascendants,
except as themselves descendants, from those still higher in the line.
(w) See Index, Interpretation; Muir's Sans. T. III.; 98 Weber's Hist. In,
Lit. 239; M, Miiller's Sans. Lit. 78; Burnell's Varadraja, Pref. p, xiv. ;
Manu 11. 10, 14; IV. 30; and XII. 108, The scriptures were to be literally
DIVIDED FAMILY : GOTRAJAS, 117
The distinction between the whole-blood and the half-blood
observed in the case of brothers and their sons extends to the
descendants of the grandfather and remoter ascendants. This
question, which is now set at rest by the decision of the Judicial
Committee in Ganga Sahai v. Kesri (x), an appeal from the
Allahabad High Court, gave rise to a conflict of decisions between
the latter and the Bombay High Court. In Samat v. Amra (y)
the Bombay High Court laid down that there was no distinction
of the whole and the half-blood in case of uncles. Then came
the decision of the Allahabad High Court in Suba v. Sarfraz («),
which did not follow Samat v. Amra (y), and laid down just
the opposite doctrine. In Vithalrao v. Ramrao (a) the point again
came up for decision before the Bombay High Court, which did
not follow Suba v. Sarfraz (z) and confirmed its own decision in
Samat v. Amra (y). At last the question was once more raised
in Allahabad in Ganga Sahai v. Kesri (b), and the High Court,
after reviewing the various cases, decided in favour of the
distinction between uncles of the whole -blood and the half-blood.
This view was confirmed on appeal to the Privy Council. I had
to consider this point before the appeal was argued at the Board,
and the view of their Lordships is based upon the text of Madana
Parijata.
As regards the female Gotraja-Sapindas, who occupy the next
division (I. B. b.), their right to inherit is still less generally
recognised than that of the males.
a. According to the doctrines of the Bengal and the Madras
school of lawyers, as represented by Jimutavahana (c) and the
Smriti Chandrika, females are in general incapable of inheriting,
and this disability can be removed only by special texts of the
Dharmasastras. The authority for this view is Baudhayana, the
reputed founder of one of the schools of the Black Yajurveda,
who, in his turn, quotes a passage of his Veda to support his
opinion. He says, Prasna II. k. 2 : —
" A woman is not entitled to inherit; for thus says the Veda,
accepted and yet to be construed by learned Brahmans according to the philo-
sophy in vogue at the time of the compilation of the last-named work.
(x) L. R. 42 I. A. 177.
iy) I. L. R. 6 Bom. 394.
(z) I. L. R. 19 All. 215.
(a) I. L. R. 24 Bom. 317.
(b) I. L. R. 32 All. 541 (F. B.).
(c) Colebrooke, Daya Bhaga, p. 215; Stokes's H. L. B., pp. 345, 346.
118 HINDU LAW. [BOOK I.
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. Vidyaranya,
in his commentary on the Taittiriyaveda, explained it, as
Mitramisra (Viram. /. 209, p. 1, 1. 10, p. 671, Calc. Edn. of
1875) says, in a different way, so that it would have no reference
to inheritance (d).
But whatever may be the respective philological value of these
different comments, Baudhayana 's explanation has long ago
become law in the East and South of India, and there accordingly
those females only inherit who are specially mentioned in the
texts of the law books (e).
id) It may be translated thus : — " Women are considered disqualified to drink
the Soma juice, and receive no portion (of it at the sacrifice)." See the
Madhavya, p. 33, Burnell's Translation; Viram. Tr. pp. 174, 176. Jagannatha
says (Col. Dig. Book V. T. 397, Comm.) that " daya "=oblation and " dayada "
= a sharer of an oblation offered to him in common with others. He points out
also that Kulluka's Commentary on Manu IX. 186, 187, shows that the latter
text would be inoperative if restricted to males, and with reference to the text
of Baudhayana, that " a wife must be considered a Sapinda, because she
assisted her husband in the performance of religious duties." Jagannatha
admits the paternal great-grandmother by analogy, notwithstanding Baudha-
yana's excluding text. Col. Dig. Book 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 Baudhayana, which
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. III., part 7). The
principle of the general incapacity of women for inheritance, founded on the
text just referred to, has not been adopted in 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 Lulloohhoy
Bappoohhoy v. Kassibai, L. R. 7 I. A. at p. 231.
(e) The Viramitrodaya, after showing that the objections raised to Vijnanes-
vara's doctrine by the Smriti Chandrika (Chap. XI., sec. 5) are unsustainable
upon the grounds taken by Devanda Bhatta, and charging Jimutavahana with
inconsistency in contending that Yajnavalkya's text is meant to exclude female
Sapindas (as wives or daughters-in-law of ascendants and collaterals sprung
from them), while he employs it to determine the right of the paternal grand-
mother (Daya Bhaga, Chap. XI., sec. 4, paras. 4-6, compared with sec. 6,
para. 10), finally itself pronounces Vidaranya's explanation of the Vedic text an
insufl&cient basis for female inheritance as not affording room for a proper appli-
cation, by way of disparagement of woman's capacity, of the word " adayada,"
" shareless." See the Viram, p. 671, Calc. Edn. of 1875, Transl. p. 198, and
DIVIDED FAMILY : GOTRAJAS. 119
b. The question is, however, whether this doctrine prevails
also in the Bombay Presidency, where the Mitakshara and the
Mayukha are the ruling authorities. The following considerations
seem to furnish an answer to it : —
First, the text of Baudhayana, or the principle that women
are in general incapable of inheriting, is adopted neither in the
Mitakshara nor in the Mayukha.
Secondly, the Mitakshara mentions the great- grandmother'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 (/). They inherit, therefore, merely by virtue
of their relationship as Gotraja-Sapindas. Hence it follows that
the Mitakshara 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 Mitakshara, Balambhatta,
expressly mentions the right of a pre-deceased son's widow (g),
whom he places immediately after the paternal grandmother, and
says that the word Sapinda must be everywhere interpreted as
including the males and females (h). Nilakantha likewise adopts
as to Jimuta's meaning, Col. Dig. Book Y. T. 434, Comm. ; Smriti Chandrika,
Chap. XI. sec. 5, para. 15.
if) See Lakshmibai v. Jayram Hari et al., 6 Bom. H. C. E. 162 A. C. J. See
also Col. Dig. Book V. T. 397, Comm. ad fin., and T. 434, 370; also Comm. on
T. 434.
ig) A case at 2 Borr. 670 (Roopchund v. Phoolchund et al.) places a daughter-
in-law before a divided brother, bnt this seems wrong. She is excluded by a
daughter, 2 Macn. 43. In Bai Gunga v. Bai Sheokoovur, Sel. Cases at p. 85,
the Sastri, 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 Lulloobhoy v.
Kassibai, L. E. 7 I. A. at p. 220; Gadadharhbat v. Chandrabhagpai, I. L. E.
17 Bom. 690 (P. B.) ; Yamunabai v. Manubai, 1. L. E. 23 Bom. 608; cf. Bai
Paravati v. Dolatram, I. L. E. 25 Bom. 263.
Oi) Visvesvara, in his discussion on the rights of the paternal grandmother,
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, Q Str. H. L. 234, recognises a right of repre-
sentation in the son's widow. In Rany Pudmavati v. Baboo Doolar Sing,
4 M. I, A. 269, grandsons of a common ancestor were held, under the Mithila
120 HINDU LAW. [BOOK I.
in this respect the same view as the Mitakshara, as he makes
the sister inherit as the first and nearest amongst the Gotraja-
Sapindas unaided by special texts (i).
c. But though both the principal authorities thus repudiate
the doctrine of Baudhayana, and allow females to inherit as
Gotraja-Sapindas, they differ on the question as to what females
fall under this designation.
The Mitakshara and its followers seem to interpret the term
" Gotraja " (= " of " or ** born in the family ") as ** belonging
to the family." For we read, Mitakshara Vyav. /. 58, p. 2,
1. 13: —
" The kinsmen sprung from the same family as the deceased
(Gotraja-Sapindas), namely, the grandfather, and the rest inherit
the estate. For the Bhinnagotra-Sapindas are included by the
term (Bandhus) " (fc).
The word ** samanagotra," *' belonging to the same family," is
substituted for "gotraja." See infra y quotation in Digest of
Vyavasthas, Chap. II., sec. 14, I. A. 3, Q. 1.
The substitution of samanagotra for gotraja, as well as the
employment of bhinnagotra to designate the opposite of the term,
both show ^at Vijnanesvara 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 Hindu 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-Sapindas can inherit under the text
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. See below
and comp. Tupper's Panj. Gust. 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 pre-deceased son, Musst. Brijimalee v. Musst. Pran
Piareeetal.,7 C. S. D. A. E. 59.
(t) Vyav. May. Chap. IV. sec. 8, p. 20; Borradaile, p. 106; Stokes's 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. Venkata Krishna Rao v. Venkatrama Lakshmi
et al, I. L. R. 1 Mad. 185; S. C. L. R. 4 I. A. at p. 8.
(k) Stokes's H. L. B. 446; and Mit. ibid. 1, 15 (Stokes's H. L. B. 447).
DIVIDED FAMILY : GOTRAJAS. 121
mentioned (l). For, though they belong to their father's gotra
up to the time of marriage, they must leave it, under the Hindu
law, before the age of puberty; and, consequently, by their
succeeding to the estate of Sapindas belonging to their fathers'
families, the object of the law, in placing Sagotra- 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 upon 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 (m). It seems, therefore, more in harmony with the
principles on which the doctrines of the Mitakshara are based,
to exclude even unmarried daughters of Gotrajas (n). The only
females, who can be understood 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
(I) Compare Manu II. 67, 68. Compare also Coulanges La Cite Antique, 51.
Col. Dig. Book V. T. 183, speaks of a second birth by investiture and other
ceremonies.
(m) Viramit., Transl. p. 254,
(n) Balambhatta 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 Gotraja-Sapinda, but by the words " bhratarah," "brother," and
" dauhitra," " daughter's son," and " tatputra," his (her) eons, in Yajna-
valkya's text. Stokes's H. L. B. 443. Thakoorain Sahiba et al. v. Mohun Lall
et al., 11 M. I. A. 402. Sisters' inheritance does not follow the analogy of
daughters'. If any analogy is to be recognised it is to the case of brothers,
Bhagirthibai v. Baya, I. L. E. 5 Bom. 264. See, however, the chapter on
Stridhana. The Smriti Chandrika excludes the daughter of the grandfather and
of other ascendants from amongst Gotra j as on the ground that the form of the
word, as derived from a combination of masculine terms, must primarily be
taken to indicate only males. Smriti Chandrika, Chap. XI., sec. 5, p. 2. On a
similar construction sisters and their eons are excluded. See Smriti Chandrika,
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 favour, p. 184 ss. See
Dig. Vyav., Chap. II., sec. 15. At 2 Str. H. L. 243, Colebrooke says that
commentators on the Mitakshara admits sisters, but that this view is contro-
verted. Sutherland says that he inclines to the view that the sister is excluded.
Remarking on Manu IX. 185, Collett, J., says, in a Madras case, that the
plural bhratara is used, and that Prof. Wilson allows the plural masculine to
include only males, though the dual bhratarau may include females.
122 HINDU LAW. [BOOK I.
" sister " inherits for this reason (o). He does not mention the
paternal great-grandmother, nor the widows of other Gotrajas in
his hst of heirs. But it is not clear whether he intends to exclude
them, as, according to Hindu ideas, a wife may be said to have
been bom again in the family of her husband, and he, as we have
seen, admits the theory of a sapinda connection 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
Mitakshara law prevails (p).
The Sastris have in their answers, except in the Gujarat cases
relating to the sister, generally followed the Mitakshara. They
prefer the sister-in-law to the sister's son (Bhinnagotra- Sapinda)
and to a male cousin and more distant male Sagotra-Sapindas (q),
the paternal uncle's widow to the sister, the maternal uncle,
and the paternal grandfather's brother; and they allow a daughter-
in-law (see Chap. IV. B., sec. 6, H. /.) 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" (r), it would
appear that the place of the widows of descendants and collaterals
in the order of heirs is immediately after their husbands (s), at
least where the particular branch to which they belong is not
lineally represented by a surviving male (t).
(o) See Vyav. May., Borradaile, p. 106; Stokes's H. L. B., p. 88.
(p) See Lalluhhai v. Mankuvarhai above, p. 114 (r), Daya Bechur et al. v.
Bat Ladoo, S. A. No. 158 of 1870, decided on March 27, 1871, Bom. H. C. P.
J. F. for 1871 ; also Dig. Vyav. sec. 15 B. II. (2) below. In S. A. No. 158 of
1870, it was held that the paternal aunt could not, even in Gujarat, be recog-
nised as a Gotraj a- Sapinda, though she was entitled to a place as a Bandhu.
iq) See Dig. Vyav., sec. 14, I. B. b. 2.
(r) See Vyav. May. p. 106. See Lakshmibai v. Jayram Hari et al., 6 Bom.
H. C. E. 162 A. C. J.
(s) See Dig. Vyav., Chap. II., sec. 8 Q. 2. The widow of a brother's son was
preferred to another brother's great-grandson in succession to a widow as to
property inherited by her from her husband. Dhoolahh Bhaee et al. v. Jeevee,
1 Borr. 75.
(t) See Lalluhhai v. Mankuvarhai, above p. 114 (r).
DIVIDED FAMILY : SAMANODAKAS. 123
It is on this analogy probably that the Sastri has grounded his
erroneous answer to Chap. II., sec. 7, Q. 16.
Eegarding the Samanodakas, who occupy the next division,
it may suffice to remark that, according to the principles of inter-
pretation adopted by Vijnanesvara in regard to the passage on
Sapinda-relationship, they must be understood to comprise the
male ascendants, descendants, and collaterals, beyond the sixth
and within the thirteenth degrees, 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.
§ 1. B (15) GoTRAjA- Samanodakas. — On failure of Gotraja-
Sapindas, the Ootraj a- Samanodakas inherit the estate of a
separate householder. Gotraj a- Samanodakas 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
hearing the same family name. The Samanodakas inherit,
like the Sapindas, according to the nearness of their line to
the deceased.
Authorities.
See Digest of Vyavasthas, Chap. II., sec. 14, II., Q. 1.
" Samanodaka " means literally participating in the same
oblation of water. Another form of the name for these kinsmen
is '' Sodaka."
§ 1. B. (16) Bandhus. — On failure of Samanodakas, the estate of
a separate householder descends to the Bandhus or Bhinna-
gotr a- Sapindas (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. The maternal uncle's sons,
4. The father's paternal aunt's sons.
Atm,a
Bandhus
Pitri
•D jr^ -j 5. The father's maternal aunt's sons,
I 6. The father's maternal uncle's sons,
124 HINDU LAW. [BOOK I.
Matri
Bandhus
7. The mother's paternal aunt's sons,
8. The mother's maternal aunt's sons,
9. The m^other's m^aternal uncle's sons.
10. All other Sapinda-relations who are not Gotrajas,
according to the definition given above — these take in the order
of their nearness to the deceased.
Authorities.
See Digest of Vyavasthas, Chap. II., sec. 15, A. 1, Q. 1; and
B. 2, Q. 1 ; Vasishtha IV. 18.
The rule as to the nine specified bandhus may be expressed
thus: — A man's own bandhus, or atma bandhus, are the sons
of his paternal aunt and of his maternal aunt and uncle. The
same relatives of his father are his bandhus, or pitri bandhus.
The same relatives of his mother are her bandhus, or matri
bandhus (v). They succeed in the order in which they have been
enumerated. See Vyav. May. Chap. IV., sec. VII., pi. 22;
Mitakshara, Chap. II., sec. 6.
The chief reason for which we hold that all the Bhinnagotra-
Sapindas inherit under the law of the Mitakshara is that Vijnanes-
vara declares ** the Bhinnagotra-Sapindas (or Sapindas who are
not Gotrajas — that is, who do not bear the same family name) to
he understood hy the term Bandhu (bhinnagotranam sapindanam
bandhusabdagrahanat). 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 enumeration is most
likely only intended to secure a preference for the nine Bandhus
named there (w). 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. II., sec. 5, paras. 3 and 6, is contained in
the circumstance that Vijnanesvara takes the words ** bandhu "
and " bandhava " in all the passages of Yajnavalkya, where
they occur, in a general sense — namely, of relations in general,
(v) It will be observed that " aunt " and " uncle " in the list mean aunt and
uncle by blood, not merely an uncle or aunt by marriage.
(w) It was perhaps originally, by counting five steps, intended to mark the
extreme limits of the bandhu relationship, confining rights of inheritance. See
note (y) next page.
DIVIDED FAMILY : BANDHUS. 125
or relations on the mother's and father's side, or relations on the
mother's side only.
Finally, Vijnanesvara himself states, in the passage on the
succession to a deceased partner in business, that the Bandhavas
include the maternal uncle, one of those Bhinnagotra-Sapindas
who had not been named by him in Chap. 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 (there), his (nearest) heirs (sons, &c.), his relations on
his mother's side (bandhavah), or his Sapinda relations, or those
(partners of his) who have returned (from their journey) shall
take his estate ; on failure of (all) these, the king.
Mitakshara —
When amongst partners one proceeded to a foreign country
and died, then near heirs (x) (dayada), 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 {y)
or those who have come (agatah), the partners in business who
have returned from the foreign country; or also these may take
his property.
On failure of them — that is, on failure of the near heirs and the
rest (dayadadi), the king shall take it.
And by the word " or " he (Yajn.) indicates that the right
of the near heirs and the rest is contingent (that is, that not
all inherit together). The rule, however, regarding the order of
succession, which has been given above (Chap. II., sec. 1, para. 2)
in the text, as to the wife, daughter, &c., applies also here. The
object for which this rule (regarding the succession to a deceased
partner in business) has been 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 merchants, 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
(x) Eegarding the use of dayada in the sense of son and nearest relations, see
the Petersburg Dictionary, s. v.
(y) Here, as in other passages, Vijnanesvara uses the word Sapinda in the
sense of Sagotra- Sapinda, blood relations bearing the same family name. As
,to the order of succession amongst the Bandhus see Digest of Vyavasthas
Chap. n. § 15, Introductory Remarks 5 and notes.
126 HINDU LAW. [BOOK I.
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 (Sambhu-
yasamutthana), vs. : —
" 15??. 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 Vijnanesvara, the meaning of this verse of
Yajnavalkya 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 Bandhavas 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 as Bandhu. The irresistible
conclusion to be drawn from this statement, as well as from the
words quoted above from Mit. Chap II., 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 understood by this term who were
not included among the Gotrajas. This view has been adopted
by the Privy Council in Gridhari Lall Roy v. The Bengal Govern-
ment {z), reversing the decision in Government v. Gridhari Lall
Roy (a). In Mudnliyar v. Mudaliyar (b) it was again held that
the enumeration of bandhus in the Mitakshara, Chap. II., sec. 6,
was not exhaustive, and that the maternal uncle who was not
specifically mentioned in the Mitakshara was an heir on the
ground that it would be absurd to exclude him while admitting
his son as an heir. The principle of classification was also
(z) 12 M. I. A. 448. Amrita v. Lakhinarayan, 10 Suth. 76 (F. B.) ; Srinivasa
v. Rengasami, I. L. E. 2 Mad. 304; Bholanath v. Dass, I. L. E. 11 Cal. 69;
Raghunath v. Munnan, I. L. E. 20 All. 191.
(a) 4 C. W. E. 13.
(h) L. E. 23 I. A. 83.
DIVIDED family: bandhus. 127
recognised, as it was held on that principle that the maternal
uncle could not be ousted by the sons and grandsons of a father's
paternal aunt. The mother's uterine brother was held to succeed
before her consanguine half-brother. In Ramchandra Martanda
Waikar v. Vinayak Venkatesh (c), the question of succession
among the bandhu was again raised; but their Lordships of the
Privy Council did not consider it necessary to determine the
question whether the class could be extended, and after dealing
with the point under consideration exhaustively, held that
" (a) the sapinda-relationship, on which the heritable right of
collaterals is founded, ceases in the case of the bhinna-gotra
sapinda with the fifth degree from the propositus; (b) that in order
to entitle a man to succeed to the inheritance of another he must
be so related to the latter that they are sapindas of each other,
which is only a paraphrase of Manu's rule." A sister's son, a
son of a daughter's son, and of a daughter's (d), though not
mentioned in the Mitakshara, have been held to be bandhus and
entitled to succeed.
See on the same subject the Introductory Remarks to Digest
of Vyavasthas, Chap. II., sec. 15.
According to the definition of the word Sapinda, and according
to that of Gotraj a- Sapinda, given above pp. 114-15, the following
persons are Bhinnagotra- Sapindas: —
1. Daughters of descendants of collaterals within six degrees.
2. Descendants through a female of a person and of those
persons expressly mentioned to four degrees of such
persons respectively — for example, a grand-daughter's
grandson, but not the great-grandson, since Sapinda-
relationship through females is restricted to four degrees.
3. Maternal relations within four degrees, see table, Digest
of Vyavasthas, Chap. II., 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
Samanodakas, p. 216.1 (e).
(c) L. K. 41 I. A. 290; S. C. 27 Mad. L. J. 333; Chamantlal v. Ganesh,
I. L. E. 28 Bom. 453.
(d) Tirumalachariar v. Andal Ammal, I. L. K. 30 Mad. 406; Ajudhia v. Ram
Burner, I. L. K. 31 All. 454 ; Rampal Thakur v. Pan Mali Padani, I. L. R. 32
All. 640.
(e) See the Viramitrodaya, Transl. p. 206 ss.
I
128 HINDU LAW. [BOOK I.
§ 1. B. (17) Spiritual Kelations. — On the jailure of Bandhus a
a preceptor, on failure of him a pupil, and on failure of him
a fellow-student, inherit the property of a separate house-
holder of the Brahman caste.
Authorities.
Mit. Chap. II., sec. 7, paras. 1 and 2; Vyav. May. Chap. IV.,
sec. 7, paras. 24 and 25.
§ 1. B. (18) The Brahman Community. — On the failure of a fellow-
student, learned Brahmans (Srotriyas), on failure of them
other Brahmans, take the estate of a separate 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 property
of a Brahman, see the passage from Vijnanesvara, translated
above p. 125, where no mention is made of the Brahman com-
munity by Yajnavalkya, and the Mitakshara expressly excludes
it from succession to a trader.
This succession has been disallowed by the English Courts.
See Stokes's Hindu Law Books, p. 449, note a, and The Collector
of Masulipatam v. Cavaly Vencata Narrainappa (/).
(/) 8 M. I. A. 520. The succession of the caste on 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 Brahman, so that resumption would be a
kind of sacrilege, and property once given must in case of need gy pres to other
Brahmans who have moreover a kind of spiritual title to the world and all that
it contains (Col. Dig., Book II., Chap. II., T. 24; Manu. VIII. 37, VII. 33).
But tribal succession is found in many districts on the Northern frontier of India
where any tribal organisation has been preserved, and was probably at one time
general amongst the indigenous tribes (see Panj. Cust. Law. vol. II., p. 240,
etc.). It may be traced to tribal distribution of the whole or of part of the tribal
lands to individual members, of which many instances occur; ibid. pp. 254, 214,
and vol. I., pp. 93, 94. See also Mr. Chaplin's Eeport on the Dekkhan, Rev.
and Jud. Sel. vol. IV., pp. 474, 475; and comp. Arist. Pol. IV. (VII.) Chap. X.,
and Bolland and Lang's Edn. Introd. Chaps. IV. and XIII.
DIVIDED family: ESCHEAT. 129
§ 1. B. (19) The Partners in Business of a Banya. — On failure
of Bandhus, partners in business take the estate of a Banya.
Authority.
Mitakshara quoted above, p. 125.
§ 1. jB. (20) The King. — On failure of a fellow -student, the king
takes the estate of a separate householder or temporary
student of the non-Brahminical castes, with the exception
of that of a merchant, which escheats on failure of partners
only, and after a lapse of ten years.
Authorities.
Mit. Chap. II., sec. 7, p. 6, and Mit. quoted above.
Failing other heirs, the State takes the property even of a
Brahman by escheat, subject to the existing trusts and charges {g).
The Crown desiring to take an estate by escheat must show
an entire failure of heirs {h).
As only his own offspring become joint-owners with a man
by their birth, the title of a remote heir cannot prevail against
his bequest of his separate property {%) though acquired by a
partition, and so held as under the former title, contrary to
1 Strange, H. L. 26, 2 ibid. 12, 13, but agreeing with Colebrooke,
ibid. 15; see Book II., Chap. I., sec. 2, Q. 8; infra Book II.,
Chap. I., sec. 2, Q. 8.
§ 1. C— SUCCESSION TO A SAMSEISHTI.
(Re-united Coparcener.)
(1) Sons, Sons' Sons, &c. — Sons, sons' sons, and their sons
inherit the estate of a Samsrishti or re-united coparcener,
per stirpes, provided they live united with their fathers, or
have been bom during the tim,e that their fathers were
re-united. The rules regarding adopted sons {p. 67) and a
(g) The Collector of Masulipatam v. C. Vencata Narrainappah, 8 M, I. A. 500.
(h) Gridhari Loll Roy v. The Bengal Government, 12 M. I. A. at pp. 454, 469.
(t) Bhika v. Bhana, 9 Harr. E. 446; Narottam v. Narsandas, 3 Bom. H. C. K.
6 A. C. J. ; Bahoo Beer Pertah Sahee v. Maharajah Rajender Pertah Sahee,
12 M. I. A. 1; Tuljaram Morarji v. Mathuradas and others, I. L. E. 5 Bom. at
p. 668.
H.L. 9
130 HINDU LAW. [BOOK I.
Sudra's illegitimate son (p. 69) apply likewise in the case
of a united coparcener. Posthumous sons also inherit.
Authorities.
Mit. Chap. II., sec. 9, paras. 1 and 4; Stokes's H. L. B. 452.
Be-union may take place, according to the Mitakshara, 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 has taken place. The Vyav. May. allows re-union
between all such persons as at some time or other have been
coparceners (avibhakta). (Vyav. May. Chap. IV., sec. 9, para. 1.)
See also the Viramitrodaya, Transl. p. 205.
As the Mitakshara states that the rules of section 9 form
exceptions to those given in Chap. II., sec. 1, regarding the
succession of the wife, &c., it follows that all the rules on the
apratibandhadaya, the unobstructed inheritance, remain in force,
and that consequently re-united 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 re-united 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 some exceptions arising from the consanguinity of those
excluded from the re-union, which will be presently noticed.
According to the Subodhini, sons who are not re-united with
their fathers, nevertheless receive a share of the estates of the
latter. (Mit. Chap. II., sec. 9, para. 9, note.)
According to the Mayukha also, unre-united sons take the
estates of their father, except in the case where some sons are
re-united with him. Then the latter have the preference. (Vyav.
May. Chap. IV., sec. 9, para. 16.)
§ 1. C (2.) Ee-united Coparceners. — On failure of his issue,
the re-united coparceners inherit the estate of their copar-
cener. But if amongst those thus re-united there he brothers
horn from, different mothers the re-united hrothers of the
whole hlood take the whole of their re-united full brother's
estate. If am,ong full brothers one is re-united with a half-
brother and another not, on the death of the re-united brother
the re-united half-brother and the unre-united full-brother
share his estate equally.
reunited family. 131
Authorities.
Mit. Chap. II., sec. 9, paras. 2, 5, seq. and 11.
According to the Subodhini, a father, whether re-united or not,
shares the estate of his son (see Mit. 1. c. para. 9, note), and a
son, though not re-united, shares the estate of the father with
a son united or re-united, but this seems inconsistent with Mit.
Chap. I., sec. 6, p. 4.
According to the Vyav. May. : —
1. The parents have a preference before other re-united
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-brother takes in preference to
the half-brother. (Ihid. para. 8.)
3. Unre-united full brothers share the estate of a full-
brother who has re-united with half-brothers or remoter
relations, together with the re-united relations. (Vyav.
May. 1. c. para. 20.)
4. In case of the re-union of a wife alone — there being no
other coparceners — she takes the inheritance of her
re-united husband; on failure of her, a daughter and a
sister; on failure of them, the nearest Sapinda. (Vyav.
May. 1. c. paras. 21-25.)
It is difficult to understand how a re -union with a wife can take
place, since, according to Apastamba II., 6, 14, 16 seq., 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 (k) which
calls a woman's own property her share in an inheritance. The
rules as to inheritance after partial or complete re-union are
complicated through the endeavours of the commentators to give
effect to two rules, one in favour of re-united brethren and one
in favour of whole-brothers, which, in some cases, clash or
overlap (1). The favour shown in a re-united 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
(A;) Transl. p. 134. Comp. Col. Dig., Book V. T. 515. Comm.
(I) See Viramit. Transl. p. 209.
132 HINDU LAW. [BOOK I.
of different castes and of a patnibhag or a division in which the
shares 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 qualified. But the rule of unequal inheritance does not seem
really reconcilable with that of equal partition amongst whole
and haK-brothers re-united, unless the inherited shares taken
by the former are to be regarded as separately acquired property ;
for which in a united family there seems to be no authority. The
contradiction would be most easily avoided by regarding the
qualification by whole blood as one not extended in its operation
by its happening to coincide in the same person with the capacity
arising from re-union. 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 coparceners at the time of their re-union. (See
Vyav. May. Chap. IV., sec. 9, pi. 2, 3. Viramitrodaya, Transl.
p. 205.) Eegard being thus had to the comparative value of the
different elements of the re-united estate, it might be extended
to supervening inequalities, arising from inheritance inter se
or acquisitions from without, in the shares of the several
members (m).
The practical difficulties in the way of thus dealing with re-
united property may be the reason why the people in this part
of India (n) have been content in practice to abide by the rule
in a re-united, 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 re-united family down to the moment of defining
their rights according to the several branches in making a
partition (o).
(m) 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. See Panj. Gust. Law, Vol. II., p. 275.
(n) See too Huro Doss Dosteedar v. Sreemutty Huro Pria, 21 C. W. E. 30.
(o) See Chap. II. sec. 11, Q. 5; Mohaheer Parshad v. Ramyad Singh et al.,
20 C. W. E. 192, 194; Gavuri Devamma Garu v. Raman Dora Garu,
6 M. H. C. E. 93; and below Book II. Introd. " The family living in union,'*
and Moro Vishavanath v. Ganesh Vithal, 10 Bom. H. C. E. at p. 461.
REUNITED FAMILY. 133
The Privy Council say that " a member who has separated
from a Hindu family and subsequently rejoins it, is remitted to
his former status " (p). And so, too, where a brother had brought
his separate gains into the common stock (q).
In Balahux v. Rukmnbai (r) the Judicial Committee has held
that a re-union in estate properly so-called can only take place
between persons who were parties to the original partition. In
Akhay v. Hari (s), a case under the Dhayabhaga, this law does
not appear to have been followed, and a nephew who was a son
of a re -united brother, who, after his father's death, lived jointly
with his father's re-united brother, was preferred to another
nephew who was the son of a separated brother.
According to Brihaspati, the acquirer in a re-united family of
what in a united family would be his separate property obtains
only a double share as compared with the other members. See
Viramit., Transl. 205. This exaltation of the common right in
a re-united family is not recognised in practice.
The Viramitrodaya (t) quotes the Dayatattwa to the effect that
in the case of the re-union of coheirs the extinction of rights over
portions and the production of rights over the entire estate are
acknowledged; and says of a coparcener that ** if re-united, then
although his share had been specified, it was lost by the accrual
of a common right over again " (v).
The widow of a re-united coparcener deceased must be main-
tained while chaste by the survivors, and also his daughter until
provided for in marriage (w).
(p) Prankishen Paul Chowdry v. Mothooramohun Paul Chowdry, 10 M. I. A.
403.
(q) Rampershad Tewarree v, Sheochurn Doss, 10 M. I. A. at p. 606. ' Samu-
drala v. Venkata, I. L. E. 33 Mad. 165; Fakirappa v. Yellappa, I. L. R.
22 Bom. 101.
(r) L. E. 30 I. A. 130.
(s) I. L. E. 35 Cal. 721.
(t) Transl. p. 40.
(v) Op. cit. p. 164.
(w) Op. cit. p. 205.
134 HINDU LAW. [BOOK I.
§ 1. D.— HEIES TO MALES WHO HAVE ENTEKED A
EELIGIOUS OEDEE.
(1.) To A Yati or Sannyasi. — The virtuous pupil {and not the
relative hy blood) of a Sannyasi is his heir (x).
See Digest of Vyavasthas, Chap. III., sec. 1; and for Authori-
ties, loc. cit. Q. 1, and sec. 2, Q. 1 ; Vyav. May., Chap IV., sec. 8,
para. 28.
Eegarding the question — what is meant by the estate of a Yati ?
see Mit. Chap. II., sec. 8, paras. 7 and 8.
(2.) To A Naishthika Brahmachari. — The preceptor (Acharya)
inherits the property of a Naishthika- Brahmachari.
See Digest of Vyavaethas, Chap. III., sec. 2; and for Authori-
ties, see Q. 1.
§ 2. HEIES TO FEMALES.
§ 2 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 Sapindas, inherit
the property of a girl who died before the completion of her
marriage (y).
See Digest of Vyavasthas, Chap. IV., A. sees. 1, 2, 3; and for
Authorities, loc. cit. sec. 1, Q. 1, and sec. 3, Q. 1.
Eegarding the question — what constitutes the property of an
unmarried female, see Mit. Chap. II., sec. 11, para. 30. The
inherited property of the betrothed damsel to which as weU 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.
(x) Ramdas v. Baldevdasji, I. L. E. 39 Bom. 168.
(y) Jangluhai v. Jetha Appaji, I. L. E. 32 Bom. 409, father's mother's
sister succeeding in preference to maternal grandmother; Tukram v. Narayan,
I. L. E. 36 Bom. 339 (F. B.), father's sister, as being his nearer heir, preferred
to his male gotraja sapinda five or six degrees removed; cf. Gojabai v. Bhosle^
I. L. E. 17 Bom. 114.
HEIRS TO FEMALES. 186
§ 2 B. — Heirs to Married Females leaving Issue.
(1.) Daughters. — Daughters inherit the separate property, Stri-
dhana, of their mothers. Unmarried daughters inherit before
married ones, and poor married ones before rich m,arried ones.
See Digest of Vyavaethae, 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 Kamalakara in the Vivadatandava despair-
ingly exclaims, " the lawyers fight tooth and nail," (yatra
yuddham kachakachi). It is impossible to reconcile with each
other even the views of those lawyers whose works are the
authorities in the Bombay Presidency. As pointed out in the
Introductory Eemarks to Digest of Vyavasthas, Chap. IV., B,
sec. 6, Nilakantha makes a distinction between the paribhashika,
the sixfold stridhana proper, as defined by the law-books, and
other acquifiitions over which a woman may have proprietary
rights. This is the distinction which Nilakantha keeps in view
when fixing the succession to the estate of a childless- married
female. But in the case of a married female leaving issue, there
ie 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 Anvadheya, the gift subsequent to the marriage, and
the Pritidatta, the affectionate gift of the husband, are shared
by the sons and the unmarried daughters, small tokens of respect
only being due to married daughters, and some trifle to daughter's
daughters. (Vyav. May. Chap. IV., sec. 10, paras. 13 — 16.)
b. The rest of the paribhashika stridhana, the stridhana proper,
as defined by the law-books (see Vyav. May. loc. cit. para. 5),
descends to the daughters, &c., in the manner described by the
Mitakshara. (See Vyav. May. loc. cit. paras. 17 — 24 especially,
regarding the limitations, paras. 18 and 24.)
c. Other acquisitions, as property acquired by inheritance, go
to the sons and tjie rest.
The Mitakshara, on the other hand, knows of no distinction
between paribhashika and other stridhana. Everything acquired
by a married female, by any of the recognised modes of acquisition,
descends in the same manner to her daughters, daughters'
daughters, &c. The views of the High Courts have varied on
136 HINDU LAW. [BOOK I.
this subject like those of the commentators. In the judgment
of the Bombay High Court, in the case of Jamiyatram and
Uttamram v. Bai Jamna (z) the following passage occurs: —
" The notion that according to the Mitakshara such (immove-
able) property (inherited from a sonless husband) forms part of
the widow's stridhana, and as such goes on her death 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 Mitakshara. The Mit. Chap. II., sec. 11, cl. 2, undoubtedly
classes property acquired by inheritance under the widow's
stridhana; but (as pointed out in DevacooverhaVs Case) clause 4
of the same chapter and section conclusively shows that the words
* acquired by inheritance,' as used in clause 2, relate only to
what has been received by the widow from her brother, her mother,
or her father, i.e., from her own family."
According to this passage, it would seem that, in the opinion
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. Colebrooke's version of the Mitakshara might be possible,
still no Sanskritist, who reads the original of the Mitakshara, will
be able to allow, or has allowed, that this was the intention of
Vijnanesvara. Unfortunately, Mr. Colebrooke has left untrans-
lated {a) two words of the Sanskrit text which head the fourth
clause. These are "yatpunah," "but as to (what is said by
Manu . . . that is intended," &c,). It is the custom of
Hindu 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 this case, Vijnanesvara had stated, in
clause 3, that the term " stridhana " was to be understood
according to its etymology, and had no technical (paribhashika)
meaning. The words ** yatpunah " (lit. " again what ") indicate,
therefore, that clause 4 removes a possible objection to clause 3.
The same conclusion, indeed, follows from a consideration of
the general course of the argument. ** Stridhana," Vijnanesvara
says, " includes property acquired by inheritance," &c. Such
is the real purport (mistaken by some lawyers) of Manu and the
rest, for " stridhana " etymologically means (all) a woman's
(z) 2 Bom. H. C. R. 11.
(a) Regarding another slight inaccuracy in Colebrooke's translation of clause 2
of Mit. Chap. II. sec. XI., see below, Dig. Vyav., Chap. II., sec. 2, Q. 10.
HEIRS TO FEMALES. 137
acquisitions, and this sense being an admissible one, is preferable
to a merely technical interpretation. It is true no doubt that
six sorts of stridhana are expressly enumerated by Manu, but
that is meant not as a restriction to those six, but as a denial
only that any of those six are not ** stridhana." He is com-
menting on the passage of Yajnavalkya (II., 143, Mit. Chap. II.,
sec. 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-
contradiction 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 author's logical method. Take the several paragraphs
2, 3, 4, however, (1) as developing the sense of the Smriti, (2) as
supporting this development 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 Hindus 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 st-atement 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 read in connection with
clause 3. For this reason we must still adhere to Sir T. Strange 's
opinion, that the property inherited from the husband becomes,
according to Vijnanesvara, stridhana. 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 (h). That case allowed property
inherited from a woman's own family to rank as stridhana, but
the gifts particularly specified as forming part of the stridhana
were clearly not meant to include inheritance, and the technical
(6) 2 Bom. H. C. K. 11.
138 HINDU LAW. [BOOK I.
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 Viramitrodaya (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 Katyayana
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 previous reference
to the husband and the honour of his bed, not the widow's own
heirs — her daughters, &c. This passage is not quoted by
Vijnanesvara. 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 (c). So Colebrooke ha8
understood the doctrine, which he contrasts with the different
▼iews taken by the lawyers of the Eastern School (d). In Bhag-
wandeen Doobey v. Myna Baee (e) the Privy Council were of
opinion that no property, inherited by a woman from her husband,
formed part of her stridhana 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
stridhana, and a widow has been held to succeed to her son's
property on the same terms as to her husband's. The question
then arose, whether all property inherited by a woman was, under
the Mitakshara, to be deemed stridhana, or whether none was so.
In the case of Vijiarangam v. Lakshnian (/), stridhana is said,
according to the Mitakshara, to include all a woman's acquisitions
of property, the descent of which is governed by the form of her
marriage. According to the Vyavahara Mayukha, 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 (g). The latest ruling of the
Judicial Committee on this subject which seems intended to shut
out all further controversy is, that regard being had to the
(c) Mitakshara Chap. II., sec. XI., paras. 2, 9.
(d) See his notes 2-13 to para. 2 of Mitakshara, Chap. II., sec. XI.
(e) 11 M. I. A. 487.
(/) 8 Bom. H. C. E. 244, 0. C. J.
ig) See below on Stridhana, and Jaildsondas v. Harkisondas, I. L. K. 2 Bom. 9.
»
HEIRS TO FEMALES. 139
authority of other commentators and to other parts of the Mitak-
shara, 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 transmissible to her own
heirs " (h), nor does it confer upon her any greater rights in
respect of inheritance from a female (i). 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, unfortu-
nately, settle the matter. The decisions in Bombay have not
been placed on so extremely general a construction as that adopted
by the Privy Council (k). The local usage may perhaps not admit
it (l), and the "other commentators" accepted as having
authority in Madras have little or no weight in Bombay against
the Mitakshara itself (m). There is an exception in the case of
the Vyavahara Mayukha, 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 (n). Such, at least, is the literal sense of its rule :
how it is to be worked out in det-ail is not laid down.
In Madras it would seem that the daughter's estate is wholly
assimilated. to the widow's (o) as to succession on her death.
From the rule given in § 2. B. (1), the " fee or gratuity " of a
woman is excepted, which goes to her brothers (Mit. Chap. II.,.
see. 11, para. 14); see also Gautama XXVIII. 23, 24.
(h) Mutta Vaduganadha Tevar v. Dorasinga Tevar, L. R. 8 I. A, 99, 109 ,*
Raja ChelikanVs Case, L. E. 29 I. A. 156.
(t) Sheo Shankar v. Dehi Sahai, L. E. 30 I. A. 202.
(k) See Tuljaram Morarji v. Mathuradas, I. L. E. 5 Bom. 662; Vinayak
Anundrao v. Lakshmihai, 1 Bom. H. C. E. at pp. 121, 124; Bai Benkor v.
Jeshankar Motiram, Bom. H. C. P. J. F. for 1881, p. 271.
(l) See The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 M. I. A.
at p. 436; Steele L. C, pp. 63-65.
(m) Narayan Babaji v. Nana Manohar, 7 Bom. H. C. E. 167, 169; Krishnaji
Vyanktesh v. Pandurang, 12 Bom. H. C. E. 65; The Collector of Madura v.
Moottoo Ramalinga Sathupathy, at pp. 438, 439; Lalluhhai Bapuhhai v. Manku-
verhai, I. L. E. 2 Bom. at p. 418; Rahi v. Govind valad Teja, I. L. E. 1 Bom.
at p. 106; Sakaram Sadashiv v. Sitahai, I. L. E. 3 Bom. at pp. 367, 368.
(n) See Vyav. May. Chap. IV. § X. para. 26, Steele L. C, pp. 63, 64; Sheo
Shankar v. Dehi Sahai, supra.
(o) See Muttayan Chetti v, Sivagiri Zamindar, I. L. E. 3 Mad. at p. 374;
Simmani Ammal v. Muttamal, Ihid., 268; Virasangappa v. Rudrappa, I. L. E.
19 Mad. 110; Venkatarama v. Bhujanga, I. L. E. 19 Mad. 107 ; Raja ChelikanVs
Case, supra.
140 HINDU LAW. [BOOK I.
§ 2. B. (2) Grand-daughters. — On failure of daughters, daugh-
ters' daughters inherit the estate of a married female.
See Digest of Vyavasthas, 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. II., sec. 11, para. 16.)
On concurrence of daughters and grand-daughters, the latter
sreceive a trifle. (Mit. Chap. II., sec. 11, para. 17.)
§ 2. B. (3) Daughters' Sons. — On failure of daughters'
daughters, daughters' sons inherit the estate of a married
female.
See Digest of Vyavasthas, Chap. IV. B, sec. 3; and for
Authority, loc. cit. Q. 1.
§ 2. B. (4) Sons. — On failure of daughter's sons, sons inherit the
estate of a married female.
See Digest of Vyavasthas, Chap II. B, sec. 4; and for Authority,
loc. cit. Q. 1.
The word ** son " does not include her husband's son by
another wife (p), or her own son bom of adulterous intercourse (q).
Both, according to the Mitakshara and the Mayukha, the sons do
not take a joint estate, but a tenancy in common (r), unlike the
law in other parts of India (s).
§ 2. B. (5) Sons' Sons. — On failure of sons, sons' sons inherit
the estate of a married female.
Authority.
Mit. Chap. II., sec. 11, para. 24.
§ 2. C. — Heirs to a Married Female Leaving no Issue.
§ 2. C. (1) The Husband. — On failure of sons' sons, the husband
inherits his wife's estate, if she was married according to
(p) Bhimacharya v. Ramacharya, I. L. E. 33 Bom. 452.
(q) Jagnnath v. Narayan, I. L. E. 34 Bom. 553.
(r) Bai Parson v. Bai Somli, I. L. E. 36 Bom. 424.
(*) Raja GhelikanVs Case, L. E. 29 I. A. 156 ; Sheo Shankar v. Debt Sahai,
I. L. E. 30 I. A. 202.
husbands' sapindas. 141
one of the laudable rites. [If she was married according to
one of the blamed rites, her property devolves on her
parents.]
See Digest of Vyavasthas, Chap. IV. B., sec. 5; and for
Authority, loc. cit. Q. 1.
There are no opinions of the Sastris in the Digest illustrating
the parts of this and the following paragraph enclosed between
brackets [ ], See the cases of Vijiarangam v. Lakshaman (t),
Jaihisondas v. Harkisondas (v), Jagnnath v. Narayan (q),
Bhimacharya v. Ramacharya (p), Bai Kesserbai v. Morariji (w).
Eegarding the question, which rites of marriage are laudable
and which blamed, see Digest of Vyavasthas, Chap. IV. B,.
sec. 5, Q. 1, and Eemark.
§ 2. C. (2) The Husband's Sapindas. — On failure of the husband,
the husband's 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 blood relations,
inherit the estate of a female leaving no issue, if she was
m,arried according to one of the laudable rites. [If married
according to the bliamed rites, the estate devolves on her
parents' Sapindas (x).
A co-widow, according to all the Schools of the Hindu law, is
entitled to succeed to the stridhana of a widow dying without
issue in preference to her husband's brother or brother's son (y);
but the grandson of a co-widow is entitled to succeed in preference
to another co-widow or husband's brother's son (z). Among
husband's brothers one of the whole blood is preferred to one of
the half blood (a).
See Digest of Vyavasthas, Chap IV. B, sec. 6; and for Authority,
loc. cit. Introductory Eemarks.
(f) 8 Bom. H. C. E. 244, 0. C. J.
(tJ) I. L. E. 2 Bom. 9.
(w) I. L. E. 30 Bom. 431, P. C. ; S. C. L. E. 33 I. A. 176.
(x) Chunilal v. Surajram, I. L. E. 33 Bom. 114; Authi Kesavelu v. Ramanu-
jaru, I. L. E. 32 Mad. 512.
iy) Bai Kesserbai v. Morariji, I. L. E. 30 I. A. 176 ; Krishndbai v. Shripati,
I. L. E. 30 Bom. 333.
(z) Gojahai v. Bhosle, I. L. E. 17 Bom. 114.
(a) Parmappa v. Shiddappa, I. L. E. 30 Bom. 607 ; Bachha Jha v. Jugmon,.
I. L. E. 12 Cal. 348.
142 HINDU LAW. [BOOK I.
§ 2. 0. (3) Widow's Sapindas. — On failure of the husband's
Sapindas, the widow's own Sapindas inherit her Stridhana,
even though she was married according to the laudable rites.
See Digest of Vyavasthas, Chap. IV. B, sec. 7; and for
Authorities, see the Introductory Eemarks to that section.
III.— SUCCESSION UNDER THE DAYABHAGA.
Authorities.
1. Dayabhaga.
2. Day a Krama Sangraha.
3. Daya Tatwa of Raghunandana.
The Dayabhaga of Jimutavahana bases the right of succession
to property on the principle of spiritual benefits conferred by those
who are competent to offer oblations at the parvana Sraddha,
which is celebrated in honour of the deceased and his paternal
and maternal ancestors every year on the day called mahalaya.
At the parvana Sraddha spiritual benefits are conferred by the
offer of pindas or funeral cakes (1) to the deceased himself, to his
paternal ancestor, to whom he (the deceased) used to present
pindas during his lifetime, and in which he participates after his
own decease; and (2) to his maternal ancestors, to whom he used
to give pindas as a matter of duty. The crumbs or pinda-lepas
which get attached to the hand while the ingredients composing
the first set of pindas are being mixed up are scraped by the
Kusa grass and offered to remoter paternal ancestors. Oblation*
of water are offered to those relations who are still more remotely
related.
Of the two sets of cakes offered at the parvana Sraddha, the
first set of three cakes is given to the paternal ancestors — that is,
the father, the grandfather, and the great-grandfather, their
respective wives sharing the cakes with them. The second set
of cakes is presented to the maternal ancestors — that is, maternal
grandfather, maternal great-grandfather, and maternal great-
great-grandfather, but their respective wives do not participate
in the enjoyment of the cakes so offered. The crumbs of the first
set of cakes are offered to the remoter paternal ancestors only.
According to Baudhayana, as mentioned by Jimutavahana,
** the paternal great-grandfather and grandfather, the father, the
man himself, his brothers of the whole blood, his son by a woman
of the same tribe, his son's son and his great-grandson, all these
partaking of undivided oblations are pronounced Sapindas. Those
SUCCESSION UNDER THE DAYABHAGA. 143
who share divided oblations are called sakulyas " (6). This
definition does not include maternal ancestors. ** If two Hindus
are bound during the respective terms of their natural life to offer
funeral oblations to a common ancestor or ancestors, either of them
would be entitled after his death to participate in the oblations
offered by the survivor to that ancestor or ancestors, and hence
it is that the person who offers those oblations, the person or
persons to whom they are offered, and the persons who participate
in them are recognised as sapindas of each other " (c). Thus the
Sapinda relationship includes all those who share the same cake
as the deceased. The son is a sapinda of the deceased because
after his own death he will partake of the cakes offered to the
deceased and his immediate ancestor, while the deceased shares
the three cakes offered by his son to himself and his two immediate
ancestors. Again, the pindas may be presented by agnatic
descendants, such as son, son's son, or by cognatic descendants,
such as daughter's son. The pindas offered by the agnates are
regarded of greater spiritual benefit than those offered by the
cognates.
" The doctrine of funeral cakes is the key to the whole Hindu
law of inheritance " (d). " Give the pinda and take the inheri-
tance " is a maxim well known to every lawyer of the Bengal
or Gauriya School. Those who are related by virtue of offering
undivided pindas, called sapindas, succeed as heirs before the
Sakulyas, who are connected through divided pindas or crumbs,
and the latter in their turn succeed before the Samanodakas, who
are associated by means of libation of water only (e).
The following are the rules applicable to the determination of
priority in inheritance among the Sapindas (/) :
(1) " Those who offer the pinda to the deceased himself are
preferred to those who offer the pinda to his ancestors."
(2) ** Those who are competent to offer funeral cakes to the
paternal ancestors of the deceased are preferred to those who
are competent to offer such cakes to maternal ancestors only, as
the first kind of cakes is held to be of greater spiritual value. "
(6) D. B. Chap. XI., sec. 1, para 37.
(c) Guru Gohind v. Anand Lai, 5 Beng. L. K. 15, 40, F. B. ; S. C. 23
W. E. 49 F. B.
(d) Amrita Kumari Dehi v. Lakhi Narayan, 2 Beng. L. E. 39 F. B. ; 5 Beng.
L. E. 15, F. B.
(«) Digumber v. Motilal, I. L. E. 9 Cal. 563.
(/) 5 Beng. L. E. 15, 39.
144 HINDU LAW. [BOOK I.
(3) " Those who offer a larger number of cakes of a particular
description are preferred to those who offer a less number of cakes
of the same description."
(4) ** If the number of cakes be equal, then the one who is
competent to offer the cake to the nearer ancestor is preferred as
an heir."
(5) ' ' Agnatic sapindas are preferred to cognatic sapindas in
any line " (g).
In Guru Gobind v. Anand Lai (c), a full Bench decision, it has
been held that the enumeration of heirs in the Dayabhaga is not
exhaustive. Certain persons who were not mentioned as heirs
in the Dayabhaga have been in consequence included in the list
of heirs, according to the Bengal School, the guiding principle
being the greater religious benefits conferred. In Akshay Chandra
V. Hari Dass (h), however, it has been decided that mere spiritual
benefit is not always the governing principle of inheritance under
the Dayabhaga, and that in cases not contemplated by Jimu-
tavahana or his followers the law should be interpreted on
rational lines, consistently with the principles followed in similar
cases, and on the theory of propinquity and natural love and
affection, for mere blind adherence to the principle of religious
efiQcacy may lead to the violation of other principles consistent
with natural justice.
The following table will show the position of Sapindas in relation
to the deceased and to each other. Those who belong to the
father's side axe called Sapindas ex parte patemd, and those who
are related through the mother are classed as Sapindas ex parte
matemd. The order in which each succeeds has been indicated
in Arabic numerals. Those whose names do not occur in the
Dayabhaga have been shown in Koman numerals. Thus a son
(No. 1) who offers undivided cakes to the deceased himself, to his
father and grandfather, would succeed before the uncle (No. 9)
who offers cakes to the father, grandfather, and great-grandfather
of the deceased, and before daughters' son (No. 6) who, though
he offers cakes to the deceased, his father, and grandfather,
presents cakes of inferior religious efficacy on account of being
a cognate. A brother's daughter's son (z) who offers cakes to
the brother, father, and grandfather of the deceased would for
the same reason be preferred to the great-great-grandfather's
(g) Hari v. Bama, I. L. E. 15 Cal. 790, 791.
{h) I. L. R. 35 Cal. 721.
(») Digumhar v. Motilal, I. L. R. 9 Cal. 666, F. B.
SUCCESSION UNDER THE DAYABHAGA. 145
great-great-great-grandson. For the same reason — that is,
spiritual benefit — son's daughter's son (k), who offers cakes to
the son (No. 1), to the deceased and his father (No. 7) will be
preferred to mother's brother's son (No. 27), who offers cakes
to No. 26 (his own father). No. 25 (his grandfather), and to
No. IX. (his great-grandfather).
There are four classes of heirs: (1) Sapindas, (2) Sakulyas,
(3) Samanodakas, and (4) certain specified strangers commencing
with the spiritual preceptor and ending with the learned Brahmin
of the village. The order of succession amongst the Sapindas
who are relations " connected through the medium of undivided
oblations " is as follows :
1. Son.
2. Grandson.
3. Great-grandson.
As in the Mitakshara these succeed -per stirpes which
applies only to the male issue in the male line. Thus
a son, a grandson by a predeceased son, and a great-
grandson, whose father and grandfather are both pre-
deceased, succeed jointly.
4. Widow.
5. Daughter —
a. Maiden.
h. Married daughter likely to have male issue —
A sonless widowed daughter, a barren daughter,
and a daughter who is mother of female children
only, are excluded from inheritance.
6. Daughters sons —
Different daughter's sons take per capita.
7. Father.
8. Mother.
9. Brother—
a. Full.
h. Half.
10. Brother's son —
Son of a united brother is preferred to a son of a
separated brother — Akshay v. Hart, I. L. E. 35 Cal.
721.
11. Brother's son's son.
(k) Braja v. Jihan, I. L. K. 26 Cal. 286.
H. L. 10
146 HINDU LAW. [BOOK I.
12. Father's daughter's son —
Half-sister's son takes with full sister's son — Bhola
Nath V. Rakhal Dass, I. L. E. 11 Cal. 69.
13. Paternal grandfather.
14. Paternal grandmother.
15. Paternal uncle.
16. Paternal uncle's son.
17. Paternal uncle's son's son.
18. Paternal grandfather's daughter's son.
19. Paternal great-grandfather.
20. Paternal great-grandmother.
21. Paternal grand-uncle.
22. Paternal grand-uncle's son.
23. Paternal grand-uncle's grandson.
24. Paternal grandfather's daughter's son.
According to the principle of spiritual benefit as explained in
Guru Gobind v. Anand (I), the following eight cognates, though
not mentioned in the Dayabhaga, are entitled to succeed before
the Sapindas ex parte matemd :
(i-
(ii.
(iii.
(iv.
(v.
(vi.
(vii.
(viii.
Son's daughter's son.
Grandson's daughter's son.
Brother's daughter's son.
Brother's son's daughter's son.
Paternal uncle's daughter's son.
Paternal uncle's son's daughter's son.
Paternal grand-uncle's daughter's son.
Paternal grand-uncle's son's daughter's son.
It has been contended that son's daughter's son and grandson's
daughter's son, who are descendants of the deceased, should
succeed before his parents and their descendants, and brother's
daughter's son and brother's son's daughter's son, who are the
descendants of the father, should succeed before the grandfather.
But as this contention meant interference with the order of
succession laid down by the Dayabhaga, it was rejected in Gobind-
prasad v. Moheschandra (m). In conforming with the ruling in
Guru Gohind v. Anand it has been held in Braja Lai v. Jihan (n)
that the sons of these eight daughters succeed in preference to
(I) 5 Beng. L. E. 15, F. B.
(m) 15 Beng. L. E. 35.
(n) I. L. E. 26 Cal. 285.
SUCCESSION UNDER THE DAYABHAGA.
147
maternal relatives; and on the same principle of spiritual benefit,
in Digumbar v. Motilal (o), that brother's daughter's son was
preferable to great-great-great-grandfather's great-great-great-
grandson.
25. Maternal grandfather.
26. Maternal uncle.
27. Maternal uncle's son.
28. Maternal uncle's son's son.
29. Mother's sister's son.
According to the commentary on the Dayabhaga, the Daya
Krama Sangraha of Sri Krishna Tarkalankara (p), the following,
who are not mentioned in the Dayabhaga, succeed before the
Sakulyas, who are relations connected by virtue of divided
oblations or crumbs:
(ix.) Maternal great-grandfather,
(x.) His son.
(xi.) His grandson,
(xii.) His great-grandson,
(xiii.) His daughter's son.
(xiv.) Maternal great-great-grandfather,
(xv.) His son.
(xvi.) His grandson,
(xvii.) His great-grandson,
(xviii.) His daughter's son.
The second class of heirs, called the Sakulyas, who are related
by means of lepa or remnants of cakes or divided oblations, come
next. According to the Daya Krama Sangraha (q) they are of
two descriptions, first descending and second ascending. The
first includes the great-grandson's son and the rest down to the
third degree in the descending line. The second embraces the
great-grandfather's father and other ancestors up to the third
degree in the ascending line, with their sons, grandsons, and
great-grandsons. The order of succession is the order in which
they are mentioned — that is to say, the descendants of the pro-
positus succeed before the descendants of his ancestors in the
order they are related to the deceased.
The next to succeed are the Samanodakas, the third class
heirs, related by common libations of water. The work Sakulya
(o) I. L. K. 9 Cal. 666, F. B.
(p) Chap. I., sec. 10, paras. 17 and 20.
(q) Chap. 1, sec. 10, paras. 22, 23.
148 HINDU LAW. [BOOK I.
embraces the word Samanodaka (r). Srikrishna remarks that
" the Samanodakas must be taken to be included in the term
' Sakulya ' because they also have sprung from the same family.
Although both classes of heirs (near Sakulyas and Samanodakas
or remote Sakulyas) are included in the same term, their order
of succession is regulated by the degree of the benefit conferred.'*
Here the Dayabhaga and the Mitakshara overlap each other,
as the Samanodakas are the same under both systems. The order
of succession among them is determined by the principle that the
descendants of a near ancestor succeed first, each in its turn
excluding the one more remotely related to the ancestor in
question.
The fourth and the last class comprises: ,
1. The spiritual preceptor.
2. The pupil.
3. The fellow student.
4. The sagotra, persons bearing the same family name,
residing in the same village.
5. The samana parvaras, persons descended from the same
patriarch, inhabiting the same village, and
6. The King, who takes a non-Brahmin's estate, that of a
Brahmin going to another Brahmin.
IV.— PEESONS DISQUALIFIED TO INHEEIT.
Persons disabled from inheriting are —
1. Persons diseased, or infirm in body or mind, who
are —
a. Impotent.
h. Blind (s).
c. Lame {t).
d. Deaf (t).
e. Dumb.
/. Wanting any organ.
g. Idiots.
h. Madmen (v).
(r) D. B. Chap. XI., sec. 6, paras. 15 and 23.
(5) Murariji v. Parvatihai, I. L. E. 1 Bom. 177.
(t) Hira v. Gangasahai, I. L. E. 6 All. 322 ; cf. Venkata Suhha Rao v. Puru-
shotam, I. L. E. 26 Mad. 133.
(v) Insanity, to act as a bar, must be congenital, although the High Courts at
Calcutta and Allahabad have held that it is a disqualij&cation if it exists at the
time succession opens. Bodhunarain v. Ormas, 13 M. I. A. 519; Koer Goolab v.
PERSONS DISQUALIFIED. 149
i. Sufferers from a loathsome and incurable disease
such as ulcerous leprosy. See Chap. VI., sec. 1,
Q. 5 (w).
2. Illegitimate children of Brahmins, Kshatriyas, and
Vaisyas.
3. Persons labouring under moral deficiencies —
a. Enemies of their father (x).
h. Outcastes and their children (y).
c. Persons addicted to vice (z).
d. Adulteresses and incontinent widows.
See Digest of Vya vast-has, Chap. VI. ; and for Authorities, see
Digest of Vyavasthas, Chap. VI., sec. 1, Q. 1, 5; ibid. sec. 3 a,
Q. 1 h, Q. 1. and c, Q. 1.
Eemarks.
If an heir is disqualified from taking the inheritance the next
heir succeeds at once. Such an heir, if taking as a full owner,
cannot be deprived of the inheritance by any birth which subse-
quently takes place, though removal of the disability in the first
Rao iiCttrMw, 14 M. I. A. 176 ; Murariji v. Parvatihai, I. L. K., IBom. 182; Ram
Bijai V. Jagatpal, I. L. E. 18 Cal. Ill P. C. ; contra, Braja Bhukan v. Bichan,
I. L. E. 9 Beng. L. E. 204; Dwarkanath v. Mahendranath, 9 Beng. L. E. 198;
Woma Pershad v. Grish Chunder, I, L. E. 10 Cal. 63 ; Deo Kishen v. Bubh
Prakash, I. L. E. 5 All. 509 (F. B.).
(w) See Ananta v. Ramahai, I. L. E. 1 Bom. 554; Janardhan Pandurang v.
Gopal et al., 5 Bom. H. C. E. 145, A. C. J. ; and as to wife's society, Bat Prem-
kuvar v. Bhika KalUanji, 5 Bom. H. C. E. 209, A. C. J. ; Mohunt Bhagohan v.
Raghunandan, L. E. 22 I. A. 94.
{x) Disqualification — for example, murder of the deceased owner by the heir —
is only personal, and does not debar the heir's representatives to claim the
inheritance (Gangu v. Chandrahhagabai, I. L. E. 32 Bom. 275) ; but the Madras
High Court holds a contrary view {Vedammal v. Vedanayaga, I. L. E. 31 Mad.
100).
(y) See above, p. 56 (c). The sons of outcastes born before their father's
expulsion are not outcastes, but take their father's place. Sons born after expul-
sion are outcastes, but Mitramisra says a daughter is not, for " she goes to
another family." Viramitrodaya, Tr. p. 254, Steele L. C. p. 34. The doctrine
of outcastes' heritable incapacity does not apply to families sprung from out-
castes, Syed Ali Saib v. Sri R. S. Peddabali Yara Simhulu, 3 M. H. C. E. 5.
Act 21 of 1850 has removed any disqualification occasioned by exclusion from
caste — for example, change of religion. Bhagwant Singh v. Kallu, I. L. E.
11 All. 100, and Gobind v. Abdul Ayyam, I. L. E. 8 All. 546.
(z) In a case at 2 Macn. H. L. 133 it is said that an unchaste daughter cannot
succeed to her parents. Compare Dig. Vyav., Chap. VI., sec. 3c, Q. 6, and
Mussamut Gang a Jati v. Ghasita, I. L. E. 1 All. 46.
150 HINDU LAW. [BOOK I.
heir will have a divesting effect. In Kalidas v. Krishan (a), a full
Bench decision of the Bengal High Court, it was so held. The
Bombay High Court followed this ruling (b), but the Madras
High Court (c) thought that the Bengal decision was based upon
the Dayabhaga, and that under the Mitakshara any such vesting
of interest in an undivided coparcenary property could not affect
rights coming into existence by subsequent births or deaths, on
the analogy of divesting of a vested interest of a brother by
subsequent adoption of a son by the widow of the deceased in
case of an impartible estate (d).
Diseases, infirmities, or moral taints contracted after the
property has vested do not disable a person for holding it any
longer.
See Eemark to Digest of Vyavasthas, Chap. VI., sec. 3c. Q. 6.
Kery Kolitany v. Moneeram, L. E. 7 I. A. 115; Abilakh Bhagat
T. Bhekhi, I. L. E. 22 Cal. 864; Sellam v. Chinnammal, I. L. E.
24 Mad. 441 ; Tirheni Sahai v. Mohammed Umar, I. L. E.
28 All. 247.
It is only congenital blindness that excludes from inheritance
according to Umabai v. Bhavu Padmanji (e), following Murarji
Gokuldas v. Parvatibai (/), see also Bakubai v. Munchabai (g) for
the different views held by the Sastris. The same condition as to
dumbness is laid down in Vallabhram v. Bai Hariganga (h). As to
mental incapacity, it is said, in Tirum,a/magal v. Ram,asvam,i (t),
that only congenital idiocy excludes. In 2 Macn. H. L. 133, 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 page 61, but this has
been largely qualified by custom. At page 224 it is said that in
seventy-two castes at Poona it was found that insanity excluded
(a) 2 Beng. L. K. 103 (F, B.) ; Pareshmani v. Dinanath, 1 Beng. L. R.
(A. C. J.) 117 ; Deo Kishen v. Mubh Prakash, I. L. E. 5 All. 509; Tagore case,
I. A. Sup., Vol. 47.
(b) Bapuji V. Pandurang, I. L. R. 6 Bom. 616; Pawadeva v. Venketesh,
I. L. R. 32 Bom. 465.
(c) Krishna v. Sami, I. L. R. 9 Mad. 64.
(d) Raghunada v. Broso Kishore, L. R, 3 L A. 154.
(e) I. L. R. 1 Bom. 557.
(/) I. L. R. 1 Bom. 177.
ig) 2 Bom. H. C. R. 5.
(h) 4 Bom. H. C. R. 135 A. C. J. ; see also Mohesh Chunder Roy et al. v.
Chunder Mohun Roy et al., 23 C. W. R. 78; S. C. 14 Beng. L. R. 273.
(t) 1 M. H. C. R. 214.
SPECIAL USAGE. 161
only unmarried persons, and that in eighty-three castes blind
persons, married and having famihes, might inherit. In such cases
the management of the property would devolve on the ov^ner's
relations. See Bhikaji Ramachandra v. Lakshmibai (k), as 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 (l).
v.— SPECIAL EULES OF INHEEITANCE ACCOKDING
TO CUSTOM. SACRED PROPERTY— RELIGIOUS AND
CHARITABLE ENDOWMENTS.
The Hindu Law is largely influenced by custom, as already
pointed out. But as even those castes and classes which have
adopted special customs etill recognise the general supremacy of
the sacred writings, any divergence of custom from the ordinary
law of succession must be established by satisfactory evidence
(m), unless it has already been recognised 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 Bhagdari lands in Gujarat was recognised
in Pranjiwan v. Bai Reva (n), as it had previously been in Bhau
Nanaji Utpat v. 8undrahai (o) to temple emoluments. In the
(k) Special Appeal No. 62 of 1875 (Bom. H. C. P. J. F. for 1875, p. 231).
(l) Bai Amrit v. Bai Manik et al., 12 Bom. H. C. E. 79.
(m) An Ikrarnama, signed by four brothers, was received as evidence suffi-
cient to establish the adoption of a family custom of excluding childless widows
from inheritance, differing from the general custom of the country, Russik Lai
Bhunj v. Purush Munnee, 3 Mor. Dig. 188, Note 2; Viramitrodaya ; Vyav.
May., Chap. I.; Mitakshara, Chap. I., sec. III.; Manu. II., 12, XII., 113;
Col. Dig., Book II., Chap. IV.
In Rajah Nugendur Narain v. Raghonath Narain Dey (C. W. E. for 1864,
p. 20) it was held that a family custom as to intermarriages might be proved
by declarations made by members of the family. But still the course of devolu-
tion prescribed by law cannot be altered by a mere private arrangement.
Balcrishna THmhak Tendulkar v. Savitribai, I. L. E. 3 Bom. 54.
In the case of an English copyhold an exclusion of females from succession
and dower was held an admissible modification by custom of a customary rule
of inheritance, though in Ireland it had been, in the case of Tanistry, pro-
nounced void. See Elton's Tenures of Kent, 55.
(n) I. L. E. 5 Bom. 482.
(o) 11 Bom. H. C. E. 249. See Colebrooke in 2 Strange's H. L. 181 ; 1 Macn.
H. L. 17, as to a Kulachar or family custom; and on the same subject, the
Judicial Committee in Chowdhry Chintamon v. Mussamut Nowlukho, L. E.
2 I. A. at p. 269; Ramalakshmi Ammal v. Sivanantha Perumal, 14 M. I. A.
152 HINDU LAW. [BOOK I.
case of Huhat Rao Mankar (p) the Council of Sasris at Poona,
admitting the custom of adoption by a widow to be opposed to the
ancient law, yet insisted on its validity as a usage of the country.
Evidence showing the custom as generally regulating the life of
the people would be sufficient to establish its validity (q).
A family custom thus established binds the individual holder
of a raj or zamindari so as to prevent his dividing it equally
amongst his sons (r).
The cases of The Court of Wards v. Rajcoomar Deo Nundun
Singh (s) ; Rajkishen Singh v. Ramjoy Surma et al. (t) ; Chowdhry
Chintamon Singh v. Musst. Nowlukho Konwari (v), and the
remarks of the Privy Council in Soorendronath v. Mussamut
Heeramonee (w) show that a family custom of inheritance may be
abandoned; and the cases of Ramchandra v. Kothekar (x) and
Ahdurahim Haji v. Halimabai (y) lay down that by merely
migrating to another place outside British India lex loci of the
place where the family settles down may be adopted, but in
British India the presumption is in favour of retention of the
observance of his shastra in the new place of settlement (z).
The ordinary rules of Hindu law are applicable to Jains, no
special custom being proved (a). Hence, in the absence of custom
or usage to the contrary, an alienation by gift by a widow of her
husband's property is invalid according to the Mitakshara which
governs the Bindala Jains (h), and on the same ground the right
576, 585; S. C. L. R. S. I. A. 1; Narayan Bahaji et al. v. Nana Manohar et al.,
7 B. H. C. R. 163, A. C. J. ; Bhagvandas v. Rajmal, 10 B. H. C. R. 260-261.
(p) 2 Borrodaile, 83.
(q) Bhagwan Singh v. Bhagwansingh, L. R. 26 I. A. 153.
(r) Rawut Urjun Singh v. Rawut Ghanasiam Singh, 5 M. I. A. 169, 180.
(s) 16 C. W. R. 143.
it) I. L. R. 1 Cal. 186.
(v) I. R. 2 I. A. 269, 273.
{w) 12 M. I. A., at p. 91; Ct. of Wards v. Pirthee Singh, 21 C. W. R.
89 C. R.
(x) L. R. 41 I. A. 290.
iy) P. C. Dec. 3, 1915; S. C. L. R. 43 I. A. 35.
{z) Parhati v. Jagdis, L. R. 29 I. A. 82.
(a) Lalla Mohabeer Pershad et al. v. Musst. Kundun Koowar, 8 C. W. R.
116; M. Govindnath Roy v. Gulal Chand et al., 5 C. S. D. A. R. 276; Sheo
Singh Rai v. Musst. Dakho et al, 6 N. W. P. H. C. R. 382; S. C. L. R. 5 I. A.
87; Bhagvandas Tejmal v. Rajmal, 10 Bom. H. C. R. 241; Hasan Ali v. Naga
Mul, I. L. R. 1 All. 288, where a special custom of adoption prevailed; Ghotay
Loll v. Chunno Lall, L. R. 6 I. A. 15.
(b) Bachebi v. Makhan Lai, I. L. R. 3 All. 55.
SPECIAL USAGE. 153
of a Jain widow of the Oswal caste to adopt without the consent
of her husband remains unaffected by the conversion of the family
to Vaishnavism (c). The Khojas — a class of Mahomedans con-
verted from Hinduism — are goverened 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 comman 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 (d).
In the case of Hindu converts to Mohammedanism — for
example, the Borahs (e) :
(1) They are generally governed by the Mohammedan law,
(2) They may by custom retain the Hindu law of inheritance,
(3) The custom must not be extended so as to embrace other
divergencies, and
(4) Any alleged variation from the Hindu law of succession
must be proved as a special custom.
But by migrating to another country and settling down in the
midst of other Mohammedans the Memons have been held to
adopt the Moslem law as the law of new domicil (y).
Succession to a Eaj was held to be governed by custom in
Arjun Manic et al. v. Ram Ganga Deo (/) ; by nomination in
Ramgunga Deo v. Doorga Munee Jobraj (g) and Beer Chunder
Joohraj v. Neel Kishen Thakoor et al. (h). An illegitimate son
was excluded in Bulbhudda Bhourbhur v. R. Juggemath Sree
Chunrun (i). As to a quasi-Kaj, see Chowdhry Chintamon Singh
V. Musst. Nowlukho Konwari (k), and the decision of the Judicial
Committeee in Periasami et al. v. The Representatives of Salugai
Taver (1).
A Kulachar, allotting certain portions of zamindaris to junior
members (m) does not render the self-acquisitions, savings and
(c) Masikchand v. Pram Kumari Bihi, I. L. R. 17 Cal. 578.
(d) Shivji Hasam v. Datu Mavji Khoja, 12 Bom. H. C. R. 281; Hirbai v.
Gorhai, 12 Bom. H. C. R. 294 ; RaUmathai v. Hirhai, I. L. R. 3 Bom. 34.
(e) Bat Baiji v. Bai Santok, I. L. R. 20 Bom. 67 ; Fatahsingji v. Harisingji,
I. L. R. 20 Bom. 181.
(/) 2 Cal. Sel. S. D. A. R. 139.
(g) 1 Cal. S. D. A. R. 270.
(h) 1 C. W. R. 177.
(t) 6 Cal. Sel. S. D. A. R. 296.
(k) L. R. 2 I. A. 269, 273. See Maine, Ancient Law, Chap. VII., p. 233.
(l) L. R. 6 I. A. 61.
{m) This custom of providing an appanage for each junior branch is widely
154 HINDU LAW. [BOOK I.
accumulations made by those members joint property (n), nor
does it confer heritable right on females in respect of the zamin-
daris otherwise disqualified from inheriting by the Kulachar
which need not be specifically proved (o).
A family custom of inheritance is not destroyed by a re-settle-
ment of the terms of the holding from the Government, even
though this should destroy many incidents of the previous tenure
(p), and when, after a confiscation for twenty years, a grant of a
" raj " was made to the brother of the former holder, the inten-
tion of the Government, it was held, was to restore the tenure as
it had previously existed, with the special qualities of succession
according to the family law (q).
When by family custom an estate is proved to be impartible,
the ordinary Hindu law is suspended just so far as is necessary to
give effect to the particular custom, but the general law still regu-
lates all that lies beyond its sphere (r). In Partapgiri Zemindari
Case, decided on April 26th, 1918, the Judicial Committee seem
to approve of the law thus laid down ; but in Rajah of Pittapur's
Case the Board on May 2, 1918, has held that there is no co-
parcenary in an impartible Zemindari, and consequently no one
who cannot prove his title by custom is entitled to maintenance.
The impartibility of an estate does not imply that it is inalien-
able (s). The inalienable quality is a question of family custom
requiring proof (t). Yet as a point of customary law impartibility
may be expected to be accompanied generally by limitations on
alienability, having the same object in view, the preservation of
spread, and probably sprung from political conditions. See Col. Dig. Book II.,
Chap. IV., T. 15 Comm. : Panj. Cust. Law, II., 183; St. L. C. 229. Comp.
Hallam Mid. Ag., vol. I. p. 88 (Chap. I., Pt. II).
(n) Chowdry Huteehur Pershad v. Gocoolanand Doss, 17 C. W. E. 129;
Katama Natchiar v. Raja of Shivaganga, 9 M. I. A. 593.
(o) Ekradeshwar Singh v. Bahuasin, L. K. 41 I. A. 275.
(p) Rajkishen Singh v. Ramjoy Surma Mozoomdar, I. L. E. 1 Cal. 186.
(g) Baboo Beer Pertah Sahee v. Maharajah Rajender Pertab Sahee,
12 M. I. A. 1.
(r) Neelkisto Deb Burmono v. Beerchunder Thakoor, 12 M. I. A. 523;
Timangavda v. Rangangavda, Bom. H. C. P. J. F. for 1878, p. 242 ; Muttayan
Chetti V. Sivagiri, I. L. E. 3 Mad., p. 374; Kachi Kalyana Rengappa v.
Kalakka Thola, L. E. 32 I. A. 261; Raja Yarlagadda's Case, L. E. 17 I. A. 144.
(s) Narain Khootia v. Lokenath Khootia, I. L. E. 7 Cal. 461; Anund Lai
Singh Deo v. Maharajah Dheraj Gooroo Narayan Deo, 5 M. I. A. 82 ; Pittapur
Case, L. E. 26 I. A. 83.
(t) Rajah Udaya Aditya Deb v. Jadub Lai Aditya Deb, L. E. 8 I. A. 248;
Narain Khootia v. Lokenath, vt supra.
ENDOWMENTS. 155
the estate to support the pohtical, official, or social rank of the
head of the family. In Rajah Nilmony Singh v. Bikram Singh (v)
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 " (w).
A bad custom will not be allowed (x). Nor is a custom depend-
ing on instances to be extended beyond them (y). If opposed ta
recognised morality or the public interest it is to be disallowed (0).
Thus a custom of a class of dancing women to introduce exclu-
sively new devadasis and to set up a monopoly of the gains of
prostitution was held unworthy of protection by the Courts (a),
and so was held the conceding of heirship to sons by adultery (b).
Endowments.
Ae to property dedicated to an idol, see Jug gut Mohini Dossee
et at, V. Musst. Sohheemony Dossee et al. (c) and Maharanee
Brojosoondery Debia v. Ranee Luckhmee Koonwaree et al. (d).
Endowments are either public or private. It is public if the
property is dedicated to a religious object or to an object of public
utility — for example, atithi-sala or shelter for pilgrims and way-
farers, maths or monasteries. It is private if the property is
endowed for the worship of a deity of a particular family. A
temple is dedicated to the worship of a god. A math, mattam, or
sattara or monastery is dedicated to the promotion of religious,,
ethical and philosophical knowledge. It is either Saiva or Vaish-
nava. The former was formed by the followers of Sankara-
(v) Decided 10th March, 1882 ; S. C. L. E. 9 I. A. 104.
(w) Comp. Rajah Venkata Narasimha Appa Row v. Rajah Narraya Appa
Row, L. K. 7 I. A. pp. 47, 48; Katama Natchiar v. Raja of Shivagunga,
9 M. I. A. 693.
(x) Narayan Bharthi v. Laving Bharthi, I. L. E. 2 Bom. 140; Reg. v.
Samhhu, I. L. E. 1 Bom. at p. 352. See Yajn. by Janardhan Mahadao Slo.
186, p. 358. Narada quoted in Col. Dig. Book III., Chap. II., sec. 28 and
Comm. show that customs opposed to morality or public policy are to be refused
recognition.
iy) Rahimatbai v, Hirbai, I. L. E. 3 Bom. 34; compare In re Smart, L. E.
W. N. for 1881, p. 111.
(z) See Narada, Pt. II., Chap. X., Jolly's Transl. p. 75. Mathura Naikin
V. Esu Naikin, I. L. E. 4 Bom. 545, 556.
(a) Chinna v. Tegrai Chetri, I. L. E. 1 Mad. 168.
(b) Narayan v. Laving Bharthi, 1. L. E. 2 Bom. 140.
(c) 14 M. I. A. 289.
(d) 20 C. W. E. 95.
156 HINDU LAW. [BOOK I.
Acharya, who. are divided into ten orders called Das-namis. It is
to be found all over India, especially the Deccan. The San-
nayasis attached thereto are given to the life of celibacy, and the
order is kept up by the adoption of Chelas or spiritual sons.
The worship is that of the lingam or phallic symbol in the
temples connected with the maths. Chaitanya was the founder
of the Vaishnava order. The maths of this order are to be found
in Bengal, Behar and Orissa. The Sannayasis are allowed to
marry. Sat-tras (protector of existence) are to be found in holy
places like Benares, and provide board and residence to travel-
lers, mendicants and pilgrims. The heads of these maths are
called by various names, such as Sebait, Sevak, Adhikari, etc.
(Re the creation of endowments and succession to managership,
see pp. 198-199.)
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 (e). In a case of alienation by
one of four Sebaits aliening debuttar, the other three suing to
recover the property must join the fourth as defendant with his
vendees or those deriving from them (/).
It is competent for a Sebait or manager of an endowment " to
incur debts and borrow money for the proper expenses of keeping
up the religious worship, repairing the temples or other possessions
•of the idol, defending hostile litigious attacks, and other like
objects. The power, however, to incur such debts must be
measured by the existing necessity for incurring them." " He is
empowered to do whatever may be required for the service of the
idol and for the benefit and preservation of its property at least to
as great a degree as the manager of an infant heir. If this were
not so, the existence of the idol might be destroyed or wasted and
its worship discontinued for want of the necessary funds to pre-
serve and maintain them. ..." "A judgment obtained against
a former Sebait in respect of debts so incurred should be binding
upon succeeding Sebaits, who, in fact, form a continuing repre-
(e) Dictum of Sir M. E. Smith in Konwar Doorga Nath Roy v. Ram Chunder
Sen, L. E. 4 I. A. at p. 58.
if) Rajendronath Dutt v. Shekh Mahomed Lai, L. E. 8 I. A. 135. See also
Prosunno Koomari Dehya v. Golah Chund Bahoo, L. E. 2 I. A. 145; Konwur
Doorganath Roy v. Ram Chunder Sen, L. E. 4 1. A., at p. 67; Khusalchand
V. Mahadevgiri, 12 Bom. H. C. E. 214; Manohar Ganesh v. K&shovram Jehhai,
Bom. H. C. P. J. F. for 1878, p. 252.
BENAMI TRANSACTIONS. 157
sentation of the idol's property " (g). He may exclude objection-
able persons from worshipping in the temple (h), and he is entitled
to be indemnified for losses incurred in defending his position as
a mahant (i).
It the object of an endowment has failed, a scheme will he
settled by the Court to give effect to the intention of the settlor,
or for an object as near as possible to the one which has failed (fc).
The destruction or mutilation of an idol is not the failure of the
object of the endowment, as a new idol may be set up in its
place (I).
VI.— BENAMI OK ISM-E-FAKZI TEANSACTIONS.
A Benami or Ism-e-Farzi transaction, as the name indicates, is-
of a fictitious nature. It consists in making purchases in the
name of a nominee or a person other than the purchaser himself.
In the Hindu society, where the property belonged to all the co-
parceners jointly, such a purchase would indiscriminately be
made in the name of any co-parcener, the property purchased
belonging to the whole family. It was really to show that all
members of the coparcenery were equal owners of the whole of
the property belonging to the family. Amongst the Moham-
medans it originated in the disability of a Mohammedan to make
purchases in distant countries in his own name through an agent.
As in the Koman law, so in the Mohammedan law, a purchase
through an agent used to be a double transaction, the agent first
buying in his own name and then transferring it to the real
purchaser. In neither case would any of the hardships which are
at present in existence in India in respect of this kind of trans-
action be found under olden conditions. A Hindu governed by
the Mitakshara could not avail himself of the plea that the pro-
perty was his when the claim was in regard to a debt incurred for
the benefit of the family, for properties standing in the name of
any member will belong to the family. For the same reason, in
suits against his own personal debts the creditor could not proceed
(g) Prosunno Kumari v. Golah Chand, L. E. 2 I. A. 151, 152; Jagadindra
Nath V. Hemanta, L. E. 41 I. A. 203 ; Kasim Saiha v. Swami, I. L. E. 18 Mad.
369; Ishwar Shyam v. Ram Kani, I. L. E. 38 Cal. 52 P. C.
(h) Sankarlinga v. Raja Rajeswara Dorai, L. E. 35 I. A. 177.
(t) Peary Mohun v. Narendra Nath, I. L. E. 37 Cal. 229.
(k) Prayaga v. Pillai, L. E. 34 I. A. 78.
(I) Bijoychand v. Kalipada, I. L. E. 41 Cal. 57.
158 HINDU LAW. [BOOK I.
against any purchases in his own name. The rule of Damdupat,
which limited the rate of interest to the amount of the principal,
was an additional check upon frauds. Amongst the Moham-
medans the very existence of the law of agency, based upon a
very strict notion of honest contracts, would be a bar against
fraudulent dealings. But when the power of acquisition of wealth,
owing to changed circumstances, ie very much diminished, and
when the money-lenders become unscrupulous, this kind of trans-
action is resorted" to to protect whatever little was left for the
support of the family.
The Judicial Committee acted in accordance with the principles
both of the Hindu and the Mohammedan law when it laid down
the rule " that the criterion of these cases in India is to consider
from what source the purchase-money comes; that the presump-
tion is that a purchase made with A.'s money in B.'s name is for
A.'s benefit, and that from the purchase by a father, whether
Mohammedan or Hindu, in the name of his son, the presumption
of the English law of an advancement in favour of that son cannot
be drawn " (m). The same is the rule if the purchase is in the
name of a daughter (n). But in the case of a property found in
possession of the wife, as in other cases, in the absence of strict
proof that the purchase was a benami (o), there is no presump-
tion that the property in her possession, the acquisition of which
she cannot account for, was not hers but her husband's (p).
Consistently with the principle laid down by the Privy Council, a
purchase by the manager of a Hindu family in his own name
would be for the benefit of the family {q), and the possession of
the beneficial owner will not be disturbed at the instance of a
(m) Moulvi Sayyud Uzhur Alt v. Ultaf Fatima, 13 M. I. A. 232 ; Gopekrist
y Gungapersaud, 6 M. I. A. 63; Nawah Azimut All Khan v, Hurdioaree Mull,
13 M. I. A. 395; S. C. 6 Beng. L. K. 578, P. C. ; Pandit Ram Narain v.
Moulvi Mohammed, L. E. 26 I. A. 38 ; Bissessur hall v. Luchmessur Singh,
L. E. 6 I. A. 233.
(n) Chunder Nath v. Kristo, 15 Suth. 357; Nohin Chunder v. Dokhohala,
I. Li. E. 10 Cal. 686; Uman Parshad v. Gandarp, L. E. 14 I. A. 127.
(o) Bai Motivahu v. Purshotam, I. L. E. 29 Bom. 306 ; Srumanchunder v.
Gopauchunder , 11 M. I. A. 28 ; Faez Baksh v. Fukurudin, 14 M. I. A. 234 ;
Suleman v. Mehdi, L. E. 25 I. A. 15 ; Nirmal v. Siddick, L. E. 25 I. A. 225.
(p) Diwan Ram Bijai v. Inderpal Singh, L. E. 26 I. A. 226; Thakro v.
Ganga Pershad, L. E. 15 I. A. 29; Dharani Kant v. Kristo Kumari, L. E.
13 I. A. 70.
(q) Bodh Singh v. Gunesh, 12 Beng. L. E. 317, P. C. ; Tundum v. Pokh
Narain, 5 Beng. L. E. 546.
BENAMI TRANSACTIONS. 159
benamdar by virtue of a certificate of purchase in his name at a
revenue sale or a sale under the decree of the Court, which title
has been laid down as absolute by various enactments of the
Indian Legislature (r).
This kind of transaction often leads to frauds on innocent
persons who, bona-fide believing that the property was that of
the benamdar, purchase the property or advance sums of money
by way of mortgage, and upon creditors when the property
ostensibly appears in the name of a farzidar and is intended to be
placed beyond the reach of a creditor. In Ramcoomar v.
McQueem (s) the Privy Council said that " it is a principle of
natural equity, which must be of universal application, that
where one man allows another to hold himself out as the owner
of an estate, and a third person purchases it for value from the
apparent owner in the belief that he is the real owner, the man
who so allows the other to hold himself out shall not be permitted
to recover upon his secret title unless he can overthrow that of
the purchaser by showing either that he had direct notice, or
something which amounts to constructive notice, of the real title,
or that there were circumstances which ought to have put him
upon an inquiry that, if prosecuted, would have led to a dis-
covery of it." In cases where no fraud has been committed on
a mortgagee, who is aware of the real nature of the transaction,
and in which the beneficial owner acquiesces, the money
advanced has been held to be a charge on the property (t). In
cases where a property is placed in the name of a person other
than the real owner with a view to defeat the claims of creditors
or for an illegal purpose, such transaction would be wholly void
(v) ; but as against the benamdar, if the intention to perpetrate a
(r) Buhuns v. Lalla Buhooree, 14 M. I. A. 496; Lokhee v. Ralypuddo,
L. E. 2 I. A. 154 ; Govinda v. Lalla Kishun, I. L. K. 28 Cal. 370 ; Act. VIII.
of 1859; Act X. of 1877; Act XIV. of 1882; Act V. of 1908; Act I. of 1845
(Bengal Kevenue Sale); Act XI. of 1859 (Bengal Zemindary Eevenue Sale).
(s) 11 Beng. L. E. 46, 62, P. C. ; Mir Mohamed v. KisJiori Mohun, L. E.
22 I. A. 129; Luchman v. Kalli Churn, 19 Suth. 292, P. C. ; Chundercoomar
V. Harhans Sahai, I. L. E. 16 Cal. 137; Sundar Lai V. Fakirchand, I. L. E.
25 All. 62; Vyankapacharya v. Yamansami, I. L. E. 35 Bom. 269; Imambandi
V. Kumleswari, L. E. 13 I. A. 160.
(t) Sarju Pershad v. Bir Bhaddar Sewak Panday, L. E. 20 I. A. 108.
(v) Ahdool Hye v. Mozuffer Hosmn, L. E. 11 I. A. 10; Yaramati v.
Chundra, I. L. E. 20 Mad. 326; Govinda v. Lallakishan, I. L. E. 28 Cal.
370; Sidlingappa v. Hirsa, I. L. E. 31 Bom. 405; Sheo Narain v. Mata
Prasad, I. L. E. 27 All. 73.
160 HINDU LAW. [BOOK I.
fraud has not been carried into effect, the title of a beneficial
owner will stand (w).
A benamdar is competent to institute a suit in his own name to
enforce a mortgage bond (x), and to be sued in an action for
setting aside an execution sale without the real owner being made
a party thereto (y). He will be acting as an agent for the real
owner, and the decree would be binding on the latter (z). But
there is a conflict of decisions in the case where a benamdar sues
for possession of the land in question, or for ejectments, or for a
declaration of his right to the land. The Calcutta High Court
holds the view that a benamdar cannot bring a suit for possession
of land or for any relief which assumes the rights of possession
for its basis (a). The Madras High Court, though holding a
contrary view before (b), now holds the same view as the
Calcutta High Court (c). The Allahabad High Court (d) and the
Bombay High Court (e) have held that a benamdar can bring a
suit of any kind in his own name, when he would be acting as
the agent of the real (or beneficial) owner, the matter decided
upon being res judicata against the latter. But this question
has been set at rest by the decision of the Judicial Committee in
Chaudhri Gur Narayan et al. v. Sheo Lai Singh et al. argued
during the Trinity Sittings, 1918.
(w) Jadunath v. Rup Lai, I. L. E. 33 Cal. 967 ; Sreemutty Dehia v.
Bimola, 21 Suth. 422; Gopenath v. Jadoo, 23 Suth. 42; Ram Sarun v. Pran
Peary, 13 M. I. A. 551; Bahaji v. Krishna, I. L. K. 18 Bom. 372; Shamlal v.
Amerendro, I. L. K. 23 Cal. 474; Kalicharan v. Rasik, I. L. K. 23 Cal. 962;
Honapa v. Narsapa, I, L. E. 23 Bom. 40. Cf. The English law appears to
lay down the same principle. Cottington v. Fletcher, 2 Atk. 156 ; Young v.
Peachey, 2 Atk. 254; Symes v. Hughes, L. E. 9 Eq. 476; Tennent v. Tennent,
L. E. 2 Sc. & D. 9; Cecil v. Butcher, 2 Jac. & W. 565; Davies v. Otty,
35 Beav. 208; Manning v. Gill, L. E. 13 Eq. 485; In re Great Berlin Steam-
boat Co., L. E. 26 Ch. D. 616; Duke of Bedford v. Coke, 2 Ves. Sen. 116.
ix) Bhola Pershad v. Ram hall, I. L. E. 24 Cal. 34; Sachitnanda v.
Buloram, I. L. E. 24 Cal. 644.
iy) Baroda Kanta v. Chunder, I. L. E. 29 Cal. 682.
(z) Gopinath v. Bhugwat, I. L. E. 10 Cal. 697.
(a) Mohandra Nath v. Kali Proshad, I. L. E. 30 Cal. 265; Hari Gohind
V. Akhoy Kumar, I. L. E. 16 Cal. 364 ; Issur Chandra v. Gopal Chandra,
I. L. E. 25 Cal. 98.
(h) Shangara v. Krishnan, I. L. E. 15 Mad. 267.
(c) Kathaperumal v. Sec. of State for India, I, L. E. 30 Mad. 245.
(d) Bacha v. Gangadhar, I. L. E. 28 All. 44; Yad Ram v. Umrao Singh,
I. L. E. 21 All. 380; Nand Kishore v. Ahmad Ata, I. L. E. 18 All. 69.
(e) Ravji Appaji v. Mahadeo Bapuji, I. L. E. 22 Bom. 672; Dagdu v.
Balvant, I. L. E. 22 Bom. 820.
BURDENS ON INHERITANCE. 161
VII.— BUEDENS ON INHEEITANCE.
Some of the principal burdens on inheritance have already
been noticed, as in § 1. A. (5), and § 1. 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 recog-
nised 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 to the
debts of a member deceased incurred for his purely personal
purposes, unless his interest in the joint property which could
have been seized and sold (/) during his lifetime has been
attached before his death (g) or has vested in the Official
Assignee under an insolvency (h), or even for the family if there
was no necessity (z), except in the case of a deceased father's
or grandfather's obligations (k) lawfully contracted.
In Amar Chand v. Sebakchand (1) the Calcutta High Court
adopted the rule laid down by the Bombay High Court (m) that
a money decree obtained against the father might be executed
against the son, who may raise objections as to the legality
of the debt under sec. 47 of C. P. C. The rule thus laid down
has been adopted in sees 50, 52, and 53 of C. P. C. (Act V.
of 1908).
Promises deliberately made by the father are by the Hindu law
regarded as equally binding on his sons, especially if made to his
wife (n).
If property descends as hereditary, the income (of a zemindari)
is liable to pay the debts of the deceased zemindar. Such seems
(/) Deendayal v. Jugdeep, L. E. 4 I. A. 217.
(g) Suraj Bansi Koer v. Sheo Pershad, L. K. 6 I. A. 88, 108; Suhaya v.
Nagappa, I. L. E. 33 Bom. 264.
(h) Fakirchand v. Motichand, I. L. E. 7 Bom. 438.
(t) See Saravan Tevan v. Muttayi Ammal, 6 Mad. H. C. E. 383; Magluiri
Garudiah v. Narayan Rungiah, I. L. E. 3 Mad. at p. 365, and below, Partition,
Liabilities on Inheritance.
(k) Above, p. 76. Narada, HI., sees. 4-6; Vyav. Mayukha, V. Sc. 4 (17).
(I) I. L. E. 34 Cal. 642, F. B.
(m) Umed v. Goman, I. L. E. 20 Bom. 385.
(n) Viramit. Transl. p. 228; Vyav. May. Chap. FV., sec. X., para. 4;
sec. IV., p. 15; Chap. IX., p. 10; see also Act IX. of 1872, sec. 25.
H.L. 11
162 HINDU LAW. [book I.
to be the principle involved in the judgment of the Privy Council
in Oolgappa Chetty v. Arbuthnot (o). But in Bombay, Calcutta,
or Madras the estate is not, without a specific lien, so hypothe-
cated for the father's debt as to prevent the heir disposing of it
and giving a good title (p), though " it descends incumbered with
the debts or accompanied by an obligation to pay the debts of the
ancestor " (q). In the case of Sangili Virapandia Chinna-
thamb v, Alwar Ayyangar (r) it was held that though an attach-
ment against the lands, impartible by family custom, of a
zemindar for his debts might, if made during his life, continue
after his death, yet as at his death the entire interest in the
zemindari passed to his son, there was nothing in the estate
itself " which was attachable assets of the late zemindar, or
which could be made available in execution of the decree against
his representative qua representative." The son seems to have
been regarded as taking the estate as a " purchaser " or inde-
pendently 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 Hindu law, however,
identifies the son with his father for all lawful obligations, as
completely as the Eoman law or as the English law under which
haeres est pars antecessoris (s). It was by an analogous identifica-
tion of persons that the executors, as in their sphere " universal "
successors, became representatives of a testator. The imparti-
bility 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
(o) L. E. 1 I. A. at p. 315 ; S. C, 14 Beng. L. E. at p. 141.
ip) Jamiyatram v. Parhhudas, 9 Bom. H. C. E. 116; Unnopoorna v. Gunga,
2 Suth. 296; Veerasokkaraju v. Papiah, I. L. E. 2 Mad. 792; Ram Oottum
V. Oomesh, 21 Suth. 155.
(q) Sakharam RamcJiandra v. Madhavrao, 10 B. H. C. E. 361, 367. See
also Nilkant Chatterjee v. Peari Mohan Das et al., 3 B. L. E. 7 O. C. J.;
Girdharee Lall v. Kantoo Lall, L. E. 1 I. A. 321 ; Suraj Bansi Koer v. Sheo
Prasad Singh, L. E..6 I. A. 88, 106; Udaram Sitaram v. Ranu, 10 B. H. C. E.
83; Sadashiv Dinkar v. Dinkar Narayan, Bom. H. C. P. J. for 1882, p. 139;
Narayanacharya v. Narso Krishna, I. L. E. 1 Bom. 262; Karimnddin v.
Gobind Krishna, I. L. E. 31 All. 506, P. C. ; Rashid v. Sherhanoo, I. L. E.
29 Bom. 411.
(r) I. L. E. 3 Mad. 42; Suraj Bansi Koer v. Sheo i-'ershad, L. E. 6 I. A.
88; Sadabart v. Foolbash, 3 Beng. L. E. 34-37, F. B. ; Koopookonan v.
Chinnayan, 1 Mad. L. E. 63.
(s) Co. Lit. 22, b.
BURDENS ON INHERITANCE. 163
it after the ownership proceeded against had ended by the death
of the debtor (t), 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 representa-
tive, and takes as a representative through this identification.
What he takes is the aggregate familia as a " universitas " in the
character of " heres suus " equally when the property is im-
partible as when it is partible, and this " universitas" or aggre-
gate includes all obligations properly attaching to the headship of
the family equally with the property and rights annexed to it (v).
The rules of partition show that the obligation to pay a father's
debt is a part of the inheritance or familia as much as the
property to be divided (w), and it is not less so when the property
is impartible, save in so far as it might defeat the purpose of the
grantor, or the law of the principality. To the extent, therefore,
to which the deceased could have charged the property or dis-
posed of it, and so enjoyed a complete ownership, it would seem
that the heir is a representative liable to execution under sec. 50
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 Zamindar (x) on a son's not being
able to obtain a partition of an impartible estate does not rest on
the Hindu law which makes the son responsible and bids him
postpone his own interests to the payment of the just debts of his
father (y). 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 Rama-
sami Chetti v. Bangari Seshama Nayanivaru (z).
(t) See Goor Pershad v. Sheodeen, 4 N. W. P. E. 137, referred to in Udaram
Sitaram v. Ranu, 11 Bom. H. C. E. at p. 78 ; and Surja Bansi Koer v. Sheo
Pershad, L. E. 6 I. A. at p. 104.
(v) See Gains, Inst. II. 167; Di. Lib. 28 Ti. 2, Fr. 11; Col. Dig. Book II.,
Chap. IV. T. 15 Comm ; Vyav. May. V. sec. IV. 14 ss. ; ibid Chap. IV. sec. IV.
33; Manu. IX. 130; Col. Dig. Book V., Chap. IV. T. 210.
iw) Vyav. May. Chap. IV., sec. VI.
(x) I. L. E. 3 Mad. at p. 381.
iy) Col. Dig. Book I., Chap. V. T. 188; Vyav. May. Chap. V., sec. IV. 16. 17 ;
and the judgment has since been reversed by the Privy Council in the case
of Muttayan Chettiar v. Sivagiri Zamindar. The Judicial Committee, L. E.
9 I. A. at p. 144, say : " The fact of the zamindari 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."
(z) I. L. E. 3 Mad. 145.
164 HINDU LAW. [BOOK T.
As to the maintenance of a widow see the section on Mainten-
ance, and Baijun Doobey et al. v. Brij Bhooknn Lall (a); Musst.
Lalti Kuar v. Ganga Bishan et al. (b), Visalatchi Ammal v.
Annasamy Sastry (c), Baboo Goluck Chunder Bose v. Ranee
Ohilla Dayee (d), Lakshman Ramchandra et al. v. Sarasvatibai
(e), Musst. Golab Koomvar et al. v. The Collector of Benares
et al. (/), Parmi v. Mahadevi, where she claims maintenance
under her husband's will, though unchaste (g), and the cases
referred to above pp. 73-75, and under Partition, Book II.
A reasonable charge subsists to provide even for a concubine
and her daughters (h) and her sons excluded from inheritance (t).
The son is responsible for unsecured debts contracted by his father
during the life-time of the latter (k). As to secured debts thus
contracted during his minority, or, with his acquiescence, after
his attaining his majority, the case is the same (I). He is also
liable for contribution to his father, when his father has had to
pay them. A discharge or distribution of the debts by ordinary
coparceners making a partition being expressly enjoined, it might
seem to follow, a fortiori, 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 Hindu law respon-
sible for all his debts (m) except those contracted for immoral
purposes (n), and this liability, as under the Eoman law, is
(a) L. K. 2 I. A. at p. 279.
(b) 7 N. W. P E. 261 (F. B.).
(c) 5 M. H. C. E. 150.
(d) 25 C. W. E. 100.
(e) 12 Bom. H. C. E. 69.
(/) 4 M. I. A. 246.
(g) I. L. E. 34 Bom. 278.
(h) See Salu v. Hari, Bom. H. C. P. J. F. for 1877, p. 34; Khemkor v.
Umiashankar, 10 Bom. H. C. E. 381.
(t) Ea/iiv. Goumd, I. L.E.I Bom. 97; Roshanv. Balwant,!^.!^. 27 I. A. 61.
(k) Govind v. Sakharam, I. L. E. 28 Bom. 383; Durbar v. Harsur, I. L. E.
32 Bom. 345; Shivaram v. Sakharam, I. L. E. 33 Bom. 39; Shiam Lai v.
Ganeshi, I. L. E. 28 All. 288; Amrutrow v. Trimhuckrow et al.. Bom. Sel.
Ca., p. 245; Chennapah v. Chellamanah, M. S. D. A. E. 1851, p. 33; Col. Dig.
Book I., Chap. V. T. 167, Note.
(l) See 1 Mit. Chap. I., sec. I., paras. 28, 29; Gangahai v. Vamanaji,
2 Bom. H. C. E. 318 (2nd Ed., p. 301), a case of ratification.
(m) Vyav. May Chap. V. S. 4. pi. 11-14; Stokes's H. L. B. 121, 122;
Keshow Rao Diwakar v. Naro Junardhun Patunkar, 2 Borr. at p. 222.
in) Col. Dig. Book I., Chap. V. T. 147-149, Comm. ; 2 Str. H. L. 456.
BURDENS ON INHERITANCE. 165
independent of inherited assets (o), though where there were
assets he who has taken them is primarily answerable (p); but
this has been hmited 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 (q) that the Mit. Chap. I., sec. 6, para. 10 (Stokes's
H. L. B. 395) authorises the alienation by a father for the pay-
ment of joint debts, even against the will of his son, so that the
father 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, unless 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 (r); 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 for-
merly 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 Sastri answered that an adopted son, like one begotten,
is responsible, independently of assets received, for the debts of
(o) Narasimharaw v. Antaji Virupaksh et al., 2 Bom. H. C. K. 61; Col.
Dig., Book I., Chap. V. T. 173.
Nilakantha, in the Vyav. Mayukha, Chap. IV., sec. IV., p. 17, insists on
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 the " familia," see Col. Dig., Book I., Chap.
V. T. 220, 221. Similarly Qui semel aliqud ex parte heres extiterit deficientum
partes etiam invitus excipit, id est, deficientum partes etiam invito adcrescunt
(L. 80 de leg. 3 D. XXXII.). was the rule of the Eoman 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
Iprivata." 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 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 his
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.
(p) See Zemindar of Sivagiri v. Alwar Ayyangar, I. L. K. 3 Mad., at p. 44;
Vyav. May., Chap. V., sec. IV., para. 17; Col. Dig. Book I., Chap. V. T. 172.
(q) Bishamhhur Naik v. Sudasheeh Mohapatter et al., 1 C. W. E. 96.
(r) See also Col. Oblig., Chap. II., 51.
166 HINDU LAW. [book I.
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. Babooee
Munraj Koonvjeree (s), 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 (t), 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 (v). In Giridharee Loll et al. v. Kanto Lall
et al. (w), 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 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." So, in Oolagappa Chetty v. Arbuthnot et al. (x), 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 Eaj.
In accordance with these cases, it has, in Bombay, been said that
" these 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 " (y), 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
(s) 6 M. I. A. 421.
it) I. L. E. 6 Cal. 843; S. C. L. E. 8 I. A. B; Daya v. Sri, I. L. R.
33 Cal. 842
(v) See Book II. Introd. § 6 A. ; 1 Str. H. L. 202.
(w) L. E. 1 I. A. 321; S. C, 14 Beng. L. E. 187.
ix) L. E. 1 I. A. 268.
iy) Govindram v. Vamanrav, E. A. No. 16 of 1874, Bom. H. C. P. J. F.
for 1875, p. 118. See Note (fe) on p. 164, supra.
BURDENS ON INHERITANCE. 167
of the father or grandfather " (z). But this liability is exceptional,
resting on special texts (a). And as to 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 (b), on
the authority of Giridharee v. Kanto (c) (see supra, p. 161). The
case of Luchmi Dai Koori v. Asman Sing et al. (d) follows
Giridharee v. Kanto (e) to the same effect; but in the case of
Rungama v. Atchama et al. (/), the Privy Council say of a son in
relation to his father's distribution of property, " If Jagannatha
takes, as we think he is entitled to do, the whole ancestral property
which the father could not dispose of without his consent, c&c."
So in Pandurang v. Naro (g). In Bhugwandeen Doobey v. Myna
Baee {h) it is said, " Between undivided coparceners there can
be no alienation by one without the consent of the other," and
see Suraj Bansi Kooer's case (i). The High Court of Calcutta
adopted this principle in the cases of Sadabart Prasad Sahu v.
Foolbash Koer (k) and of Mahabeer Pershad v. Ramyad Singh
et al. (I), which, in Baboo Deendyal Lall v. Baboo Jugdeep
Narain Singh (m), 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 the 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
(z) Udaram v. Ranu Panduji et al., 11 Bom. H. C. R. 83, citing Col. Dig.
Book I. , Chap. V. T. 167 ; cited and approved by the Judicial Committee in
Suraj Bansi Koer v. Sheo Pershad Singh, L. R. 6 I. A., at p. 104. See also
Narada, Pt. I., Chap. III., SI. 12; 1 Str. H. L. 173; Keshow Rao v. Naro
Junardhun, 2 Borr. 222.
(a) 11 Bom. H. C. R. 85 (supra), citing Col. Dig., Book I. T. 169, 229.
(6) I. L. R. 1 Bom. 262.
(c) Supra.
(d) I. L. R. 2 Cal. 213.
(e) Supra.
(/) 4M. I. A., atp. 103.
ig) Sel. Rep. 186.
(h) 11 M. I. A., atp. 616.
(i) L. R. 6 I. A. 88, 100, 102.
(k) 3 Ben. L. R. 31 F. B.
(l) 12 Ben. L. R. 90.
(m) L. R. 4 1. A., p. 247.
168 HINDU LAW. [BOOK I.
answerable, it was necessary to join them as parties according to
Nugender Chunder Ghose et al. v. 8. Kaminee Dossee et al. (w);
and Baijun Doohey et al. v. Brij Bhookun Loll (o). 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 " (p). It may seem rather too broad a statement,
therefore, "that under the Mitakshara and Mayukha the son
takes a vested interest in ancestral estate at his birth, but that
interest is subject to the liability of that estate for the debts of
his father and grandfather " (q). Some inquiry would seem to
be necessary, and a reasonable assurance of benefit to the family,
to warrant a lender in advancing money at the father's instance
on the whole family estate (r). Subject to this the father's
authority as manager is to be liberally construed (s), and a recent
ruling of the Judicial Committ-ee makes ancestral estate assets
in the hands of the heir for payment of the late owner's debts
without distinction apparently of their character (t).
It does not seem that by the Hindu law a father can, during
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
charge the whole of the estat-e for his debts contracted antecedent
to the mortgage or to the suit (v) [and according to some
decisions of Allahabad and Madras High Courts even for his
present debt (w)] has been laid down by the Judicial Committee
in Chandra Deo y. Mata Prasad (x), and that he could deal with
his own undivided share so as to give to his vendee, or mortgagee,
(n) 11 M. I. A. 241.
(o) L. K. 2 I. A. 275.
(p) So in Haza Hira v. Bhaiji Modan, S. A. No. 444 of 1874, Bom. H. C. P.
J. F. for 1876, p. 97.
(g) Narayanacharya v. Narso Khrisna, I. L. E. 1 Bom., at p. 266.
(r) Saravana Tevar v. Muttaya Ammal, 6 Mad. H. C. K. 371.
(s) Bahaji Mahadaji v. Krishnaji Devji, I. L. R. 2 Bom. 666; Ratnam v.
Govindarajulu, I. L. R. 2 Mad. 339. See B. II. Partition.
(t) Muttayan Chetiar v. Sangali Vira Pandia, L. R. 9 I. A. 128.
(v) Kishna v. Tipan, I. L. R. 34 Cal. 735; Khalilal v. Gobind, I. L. R.
20 Cal. 328, 346; Lachman v. Giridhar, I. L. R. 5 Cal. 855, F. B.
(w) Dehi V. Jadu, I. L. 24 All. 459; Chidamhara v. Koothaperumal,
I. L. R. 27 Mad. 326.
(x) L. R. 31 I. A. 176.
BURDENS ON INHERITANCE. 169
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 new obligation arises as against his sons,
whose first 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
(y), 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 Pillai v. Pappuvayyangar
(z) it has been held (a) by the 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
Oiridharee Loll v. Kantoo Loll and Muddun Thakor's Cases (h)
goes to make the interest of the son in a heritage altogether
subordinate to that of the father, and to place it in all ordinary
cases entirely at the father's disposal.
To sum up the decisions of the Privy Council on this point. In
Muddun Thakoor v. Kantoo Lall (c) their Lordships of the Privy
Council laid down that ancestral property which descended to a
man under the Mitakshara law was not exempted from liability
to pay his debts because a son was bom to him ; that it was the
pious duty on the part of the son to pay his father's debts; and
the ancestral property in which the son, as son, acquired an
interest by birth was liable for the father's debts, unless they had
been contracted for immoral purposes; and that the Mithila law
was the same. This view was affirmed in Suraj Bansi v. Sheo
Pershad (d), when the Judicial Committee said "That where
joint ancestral property has passed out of a joint family, either
under a conveyance executed by a father in consideration of an
antecedent debt or in order to raise money to pay off an ante-
cedent debt, or under a sale in execution of a decree for the
father's debt, his sons, by reason of their duty to pay their
father's debt, cannot recover that property unless they show that
iy) Narada, Pt. I., Chap. III. SI. 6.
(z) I. L. R. 4 Mad. 1. See too Ram Narain's Case, I. L. R. 3 All. 443.
(a) By a majority against Innes and Muttusami, J.J.
(6) L. R. 1 I. A. 321.
(c) L. R. 1 I. A. 331.
(d) L. R. 6 I. A. 88.
170 HINDU LAW. [BOOK I.
the debts were contracted for immoral purposes, and that the
purchaser had notice they were so contracted." This has been
followed in Nomani Babuasin v. Modun Mohun (e), where their
Lordships observed: "There is no question that considerable
difficulty has been found in -giving full effect to each of two
principles of the Mitakshara law, one being that a son takes a
present- vested interest jointly with his father in ancestral estate,
and the other that he is legally bound to pay his father's debts,
not incurred for immoral purposes, to the extent of the property
taken by him through his father. . . It appears to their Lord-
ships that sufficient care has not always been taken to distinguish
between the question how far the entirety of the joint estate
is liable to answer the father's debt, and the question how far
sons can be precluded, by proceedings taken by or against the
father alone, from disputing that liability. Destructive as it may
be of the principle of independent coparcenery rights in the sons,
the decisions have for some time established the principle that
the sons cannot set up their rights against their father's aliena-
tion for an antecedent debt, or against his creditors' remedies for
their debts, if not tainted with immorality. On this important
question of the liability of the joint estate their Lordships think
that there is now no conflict of authority. ... If his (father's)
debt was of a nature to support a sale of the entirety, he might
legally have sold it without suit, or the creditor might legally
procure a sale of it by suit. All the sons can claim is that, not
being parties to the sale or execution proceedings, they ought
not to be barred from trying the fact or the nature of the debt
in a suit of their own. Assuming they have such a right, it will
avail them nothing unless they can prove that the debt was
not such as to justify the sale. If the expressions by which the
estate is conveyed to the purchaser are susceptible of application
either to the entirety or to the father's coparcenery interest alone
(and in DeendayaVs Case (/) there certainly was an ambiguity of
that kind), the absence of the sons from the proceedings may be
one material consideration. But if the fact be that the purchaser
has bargained and paid for the entirety, he may clearly
defend his title to it upon any ground which would have justified
a sale if the sons had been brought in to oppose the execution
proceedings.^'
(e) L. E. 13 I. A. 1.
(/) L. E. 4 1. A. 247.
BURDENS ON INHERITANCE.
171
The same principle has been confirmed in Bhagbutv. Girja(g)'^
Mesnakshi Naidu v. Immudi Kanaka (h), Mahahir Pershad v.
Rai Markunda Nath (i) ; and Sripat Singh Dugar v. Maharajah
Sir Prodyot Kumar Tagore (k).
The cases of Deendyal v. Jugdeep (I), Suraj Bansi v. Sheo'
Pershad (m), Hardi v. Rudar (n), Simbhu Nath. v. Golab Singh
(o), Pettachi v. Sangili Veera Pandia Chinnathambiar (p), and
Abdul Aziz v. Naicker (q) are authorities for the proposition that
in execution of a decree against the father only that share which
would have come to him on a partition being made could be sold.
Recently, in Thakur Sri Sri Radha Krishna Chanderji v. Ram
Bahadur (r), the cases above referred to were mentioned at
the Bar, but their Lordships lay down the rule that when
' ' right, interest and title ' ' of the father in execution of a money
decree against him are sold, only his life estate passes. They say
as follows: "Doubtless they (decree holders) supposed that
interest (that of the father) to have been absolute, and the family
may have thought so too. Even if the interest of Sheo Parkash
in the land, which was sold in execution, determined', with his
life, it was said that the interest of his sons must be deemed to
have been sold too, for the ancestral property in a joint Hindu
family may be made liable for the father's debts unless they can
be shown to have been for an illegal or immoral consideration.
Such rules, however, do not always apply. The creditor's
conduct, for example, may evidence his intention not to resort to
such a right, whereby after all one man's property is taken to pay
another man's debt. This is peculiarly so where the form of his
proceedings points to an election to seek execution against his
own debtor's interests, and no further. ... It does not appear
that he claimed execution at any time against the family
property generally."
In this case the property in question was in possession of the
(g) L. E. 15 I. A. 99; S. C. I. L. E. 15 Cal. 717.
(h) L. E. 16 I. A. 1; S. C. I. L. E. 12 Mad. 142.
(i) L. E. 17 I. A. 11 ; S. C. I. L. E. 17 Cal. 684.
(fe) L. E. 44 I. A. 1.
(Z) L. E. 4 I. A. 247 ; S. C. I. L. E. 3 Cal. 198.
(m) L. E. 6 I. A. 88; S. C. I. L. E. 5 Cal. 148.
(n) L. E. 11 I. A. 26 ; S. C. I. L. E. 10 Cal. 626.
(o) L. E. 14 I. A. 77; S. C. I. L. E. 14 Cal. 572.
(p) L. E. 14 I. A. 84 ; S. C. I. L. E. 10 Mad. 241.
(g) L. E. 31 I. A. 1 ; S. C. I. L. E. 27 Mad. 131.
(r) P. C. Judgment, dated Aug. 3, 1917.
1^ HINDU LAW. [BOOK I.
father. The sons, who were minors, were made parties to the
execution proceedings against which they had unsuccessfully
appealed to the High Court. All parties understood that the
entire interest of both the father and the sons passed on to the
purchasers at the auction in execution of the decree against the
father alone. As the property was already in possession of the
father, no partition was necessary, or it was effected by the
property being defined in execution proceedings. Further, if the
■deed of gift was invalid, being a gift of the father's undivided
share, the property in question was a joint ancestral property,
and the fact of the sons being made parties to the execution pro-
ceedings would pass their interest too. If, on the contrary, the
'deed of gift operated as a partition also (s), the property in dis-
pute had fallen to his share, and the sale thereof would also pass
the entire interest of the family therein. The principle, there-
iore, as now laid down, unsettles the law once more, and leaves
it where it was started when the decision in Muddum Thakoor's
'Case was given. What the parties understood at the time the
sale took place, it appears, is immaterial.
VIII.— LIMITATIONS OF PEOPERTY AND RESTRAINTS
ON DISPOSAL UNDER THE HINDU LAW.
The power which a Hindu proprietor may exercise in disposing
of the property he owns (t) varies according to his family rela-
tions, to the way in which the property has been obtained, as it
is ancestral or self-acquired, as it is immoveable 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 with his own share only under exceptional rules (v).
The father may incumber the ancestral estate only for purposes
of a respectable kind, or not distinctly the reverse ; for immoral
(s) Girjahai v. Sadashiv, L. K. 43 I. A. 151; Kawal Nain v. Budh Singh,
L. E. 44 I. A. 169.
(t) Devanda Bhatta insists on that being property which in itself is capable
of alienation, whether or not in any particular case it can be alienated. Smriti
Ohandrika, Tr. p. 10.
(o) Lakshmishankar v. Vaijnath, I. L. K. 6 Bom. 24; Vrandavandas Ramdas
V. Yamunabai, 12 Bom. H. C. E. 229; Ganguhai Kom Shidapa v. Ramanna
bin Bhimanna, 3 Bom. H. C. E. 66, A. C. J. and Note ; Chamaili Kuar v. Ram
Prasad, I. L. E. 2 All. 267; Ganga Bisheshar v. Pirthi Pal, ib. 635. See
rabove, VII. 6, Burdens on Inheritance, pp. 166 — 169.
LIMITATIONS OF PROPERTY. 173'
purposes it has been said that he cannot bind even his own share
as against his eon's survivorship. The managing member has
special powers subject to special restrictions (w). The son's
right is bom, and unless, realised by division, dies with him.
The daughter, wife, and widow are subject to limitations as to
the estates they can confer and the control under which they act.
The general right of dealing with property acquired by oneself
does not extend to ancestral estate. In the latter the birth-right
of a son enables him, according to the law of the Mitakshara, 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 (x). The testamentary power-
depends on unity or severance of the family, and on the nature
of the property.
The questions arising under these different 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 Hindu
law, may be regarded as inseparable from the notion of property
enjoyed under the law.
As to the acquisition of ownership, this, Vijnanesvara says, is
a matter of secular cognizance (y). It arises from Occupation,
Finding, Purchase, Inheritance, and Partition (z), as common to
(w) Kameshwar Pershad v. Run Bahadur Singh, I. L. E. 6 Cal. 843; Daulat
V. Mehr, I. L. E. 15 Cal. 70; Sheo v. Saheh, I. L. E. 20 Cal. 463; In re Haroon
Mohamed, I. L. E. 14 Bom. 194 ; Jagannath v. Mannu Lai, I. L. E. 16 All. 231 ;
Gharibullah v. Khalak, L. E. 30 I. A. 165 ; S. C, 25 All. 407 ; Sheo Shanker v.
Ram Shewak, I. L. E. 24 Cal. 77.
(x) Bahaji Mahadaji v. Krushnaji Devji, I. L. E. 2 Bom. 666; Hurronath
Roy V. Rundhir Singh, L. E. 18 I. A. 1 ; Kameswara Sastri v. Veeracharlu,
I. L. E. 34 Mad. 422; Bhagirathi v. Jokku Ram, I. L. E. 32 All. 375 ^
Sundrahai v. Shivanarayana, I. L. E. 32 Bom. 81.
iy) Mitakshara, Chap. I., sec. I., paras. 9, 10. There are many subtile
disquisitions in the Hindu commentaries on the specially approved means of
acquisition, as Gift for a Brahman, Conquest for a Kshatriya, and Gain for a
Vaisya or Sudra. The general result appears to be that though for sacrificial
purpose the property offered should have been acquired in the authorized 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 the enumeration given in the Smritis is rather a statement
of facts of experience than a rule in itself determining the essentials of property.
See the Sarasvati Vilasa, § 400 ss.
(z) Ibid., para. 12 ;Bhaskarappa v. The Collector of North Kanara, I. L. E.-
3 Bom., at p. 524.
174 HINDU LAW. [BOOK I.
all castes and conditions. The peculiar relations of inheritance
and partition as understood by the Hindu lawyers are discussed
above p. 63?i, and in the Introduction to Book II. Occupation or
appropriation of waste lands is regarded as a natural right (a),
but as one concurrent with a right in the sovereign to a rate or
tax on the produce (b). Hence naturally possession is the
strongest proof (c). The strength of the ownership thus attested
is such that the rule has sometimes been recognised that the
occupying owner of a field who has absconded may at any time
return and recover it on terms equitable to the intermediate
occupant (d), 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 Hindu
law (/), that a royal gift of occupied land is construed to mean
only a gift of the revenue (g), and that even a conqueror acquires
(a) See Viramit., Chap. I., sec. 13; Smriti Chandrika, Tr. p. 11; Comp.
Imp. Gaz., vol. VII., p. 520; Bhaskarappa v. The Collector of North Kanara,
I. L. R. 3 Bom., at pp. 548, 563, &c. ; Vyakunta Bapuji v. Government of
Bombay, 12 Bom. H. C. R. App. 30 ss. ; Comp. Panj. Cust. Law, vol. II., pp. 21,
^54, w^hich shows in how many various ways, as between individuals, a pro-
prietary right may be acquired in land not completely appropriated.
(6) Ibid., and Col. Dig., Book II., Chap. II. T. 12, Comm. ; T. 17, T. 22,
Comm. ; T. 24, Comm. ; Vasudev Sadashiv Modak v. Collector of Ratnagiri,
L. R. 4 1. A., at p. 125.
(c) Vyav. May., Chap. II., sec. 1, para. 8; comp. Col. Dig., Book II.,
Chap. II. T. 10, Comm.; T. 12, Comm.; Steele, L. C. 207; Vishvanath v.
Mahadaji, 1. L. R. 3 Bom. 147. The cultivator is regarded as bound to main-
tain the land he holds in cultivable condition. — Manu. VIII. 243, a duty which
is recognised by the Mahomedan law also, and by other systems.
(d) Mitak. in Macn. H. L. 202, 205, 207 ; Bhaskarappa v. The Collector of
North Kanara, I. L. R. 3 Bom., at pp. 525-6. See Narada II. XI. 23 ss. ; Piarey
Lall v. Saliga, I. L. R. 2 All. 394; Harbhaj v. Gumani, ib. 493; and comp.
Joti Bhimrav v. Balu Bin Bapuji, I. L. R. 1 Bom. 208; ib. cases referred to
at p. 94; Col. Dig., Book II., Chap. II. T. 24 Comm. sub fin; Tod's Rajasthan,
vol. I,, p. 526; M. E. Elphinstone in Rev. and Jud. Sel., vol. IV., p. 161;
O-eneral Briggs, ib. p. 694.
(e) Parhhudas Rayaji v. Motiram Kalyandas, I. L. R. 1 Bom. 207; Col.
Dig., Book II., Chap. II. T. 27, Comm.; T. 28, Comm.; T. 27, Comm. The
consequences of this on the law of partition are traced in Book II., Introd.
§ 5 B and notes. In the latter references will be found to the rights of com-
munities as still in some places asserted, and to the formerly inalienable
character of the patrimony. See Mr. Chaplin's Report, Rev. and Jud. Sel.,
vol. IV., pp. 474-477.
(/) Col. Dig., Book II., Chap. II. T. 28, Comm.; T. 24, Comm.; comp.
Hunter's Roman Law, p. 807.
ig) Vyav. May., Chap. IV., sec. I., para. 8; comp. Col. Dig., Book II.,
Chap. II. T. 10, Comm.; T. 12, Comm.; Steele, L. C. 207; Vishvanath v.
Mahadaji, I. L. R. 3 Bom. 147.
LIMITATIONS OF PROPERTY. 176
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 (h), except in the case of estates granted by the
sovereign for the support of part-icular services to the State, or for
the furtherance of purposes recognised as beneficial to the com-
munity. Jagirs for military service come the nearest in char-
acter to feudal holdings of the earlier type, the terminable
beneficia which were succeeded by hereditary estates held by
homage and military service (i). 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 sovereign power (fe).
From their nature they are impartible, and so, too, are saranjams
and inams, granted either for life or hereditarily, for services
rendered or for maintaining the dignity of a family, and they are
resumable by the government if granted by treaty (I). Vatans
granted for the support of local hereditary offices 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 life of a sharer as to his own share. The appro-
priation of these estates to the public service is now secured, and
the competence of individual sharers is strictly limited by
statute (m).
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 (n). Lands held for various
(h) Comp. Bom., Acts II. and VII. of 1863.
(i) See Hallam, Mid. Ages, Chap. II., Note IX.; Freeman, Hist, of Norm.
Conquest, vol. V., pp. 132, 379; Maine, Anc. Law, Chap. VII., pp. 230, 233
(3rd. ed.); Munro by Arbuthnot, vol. I., pp. 162, 154; vol. II., 307; Rajah
Nilmoni Singh v. Bakranath Singh, L. E. 9 I. A., at p. 122; Imperial Gazetteer
of India, vol. VII., p. 619.
(k) Bom. Eeg. XVII. of 1827 § 38.
(l) See Ramchandra Sakharam Vagh v. Sakharam Gopal Vagh, I. L. R.
2 Bom. 346; Bom. Govt. Selections, No. XXXI. passim; Bom. Act VII. of
1863 § 2 ; Act II. of 1863, 1 ; Sheikh Sultan Sani v. Ajinodin, L. R. 20 I. A.
501; Madras Regulation XXV. of 1802, § 3; Maharaja Mirza Sri Ananda v.
Pidaparti, L. R. 13 I. A. 32— an inam is inalienable but for Government
revenue; Dosihai v. Ishwardas, L. R. 18 I. A. 22; Golahdas v. Coll. of Surat,
L. R. 6 I. A. 54.
(m) See Index Tit. Vatan ; Bom. Act III of 1874.
(n) See Steele, L. C. 204 ss.
176 HINDU LAW. [BOOK I.
other public services, such as the jyotishi vatans of astrologers,
and in general all religious endowments (o) are subject to restric-
tions as to the estates held in them (p), and the conditions or
accompanying obligations with which they are held by the
successive tenants, which give them a special character (q). The
enforcement of the public duties in these cases was formerly
secured by forfeiture, in the necessary cases, of the exemption
from assessment (r), but in the case of charitable endowments
the ownership of the property itself was still recognised, and an
opportunity was allowed to those interested to avoid the forfeiture
(that is, the imposition of the assessment) by a suit to compel
performance of the duty. In the Bombay Presidency charitable
endowments are now in an anomalous position. They are mostly
of a religious or quasi-religious kind, and the Government has
withdrawn from all connection with religious endowments (s),
while the provisions foil the security of the property extend in
Bombay only to the district of Canara (t). In the southern part
of the Presidency it is expressly provided that charitable endow-
(o) 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 but for the indifference with which successive 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 dewasthans, 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 religious 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, sometimes to resume religious endow-
ments while he made up his mind who was best entitled to take them (ibid.),
but an avowed resumption of such property was virtually unknown. (The
Collector of Thanna v. Hari Sitaram, Bom. H. C. P. J. F. for 1882, p. 206;
I. L. E. 6 Bom. 546.)
(p) These interests and all sources of a periodical income (" nibandh ") are
looked on by the Hindu law as of the character of immoveable property. See
Col. Dig., Book II., Chap. IV. T. 27, Comm. ; Yajn. H. 122; Mit., Chap. I.,
sec. v., paras. 3, 4; Vithal Krishna Joshi v. Anant Ramchundra, 11 Bom.
H. C. K. 6; Divakar Vithal v. Harhhat, Bom. H. C. P. J. F. for 1881, p. 106.
(q) See Ukoor Doss v. Chunder Sekhur Doss, 3 C. W. K. 152; Prosunno
Koomari Dehya v. Golah Chand Bahoo, L. K. 2 I. A. 145; Narayan v.
Chintaman, I. L. E. 5 Bom. 393.
(r) Bom. Eeg. XVII. of 1827 § 38.
(s) Act XX. of 1863 § 22.
(t) Bom. Act VII. of 1865.
LIMITATIONS OF PROPERTY. 177
ments held free from land-tax shall be inalienable (v), but civil
hereditary offices with inams attached to them are alienable {w).
In Bengal, generally speaking, Ghatwali hereditary tenures
cannot be alienated (x). 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 recognised by the
Courts (y).
The sharers in Bhagdari and Narwadari villages are subject to
special restrictions in dealing with their shares, of which custom,
now ratified by statute (z), forbids the 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 effect 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 " bhau-
band " or fraternity (b) constituting the village community, and
(v) Bom. Act II. of 1863 § 8; Bhikaji Mahadev v. Bahusha, Bom. H. C.
P. J. F. for 1877, p. 297.
(w) Bhimappaiya v. Ramchandra, I. L. E. 22 Bom. 427 ; Bombay Hereditary
Officers Act, 1874, sec. 56.
(cc) Nilmoni Singh v. Bakranath, L. R. 9 I. A. 104; Tekait Kali Pershad
V. Anund Roy, L. R. 15 I. A. 18; Narain Mullick v. Badi Roy, I. L. R.
29 Gal. 227.
iy) Khusalchund v. Mahadevgiri, 12 Bom. H. C. R. 214; Narayan v. Chinta-
man, I. L. R. 6 Bom. 393; The Collector of Thanna v. Hari Sitaram, 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.
(z) Bom. Act V. of 1862.
(a) Pranjivan Dayaram v. Bat Reva, I. L. R. 6 Bom. 482.
In the Panjab there are many instances of restrictions imposed in 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 Geomori in dealing with the territory of Syracuse. See the work
quoted below.
(h) In the Panjab women as they marry persons not members of the village
community do not transmit a right to the village lands, which are thus pre-
served to the community. See Tupper, Panj. Gust. Law, vol. II. 58, 145, 175,
177. The prevention of similar mischiefs engaged the care of most ancient
legislators or of the communities whose customs they embodied. See Numbers,
Chap. XXVII., XXXVI. The Athenian law compelled the nearest male
relation to marry the female epikleros, taking the estate with her. Isacus III.
64, Sir W. Jones' Works, vol. IX., p. 103; Smith's Die. Antiq. sub voce.
Comp. Ruth., Chap. IV.
H.L. 12
178 HINDU LAW. [BOOK 1.
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 recognised by the Hindu law (e). The
joint mirasi village community had generally broken up even
under the Indian rule, and the mirasdar 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 (/), not subject
to ejectment so long as he pays it.
Other special customs might be referred to (g), but these not
forming a part of the general Hindu law 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 arrangement (h). Ipso jure
heres exsistit (i) and an agreement which attempts to establish a
new line of descent unknown to the law is inoperative (k). 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 (I). This rests on the
(c) See on miras generally, Steele, L. C. 207; Mr. Chaplin's Eep., para. 14
ss. ; Eev. Sel., vol. IV.; Madras Mirasi papers; Vyakuntha Bapuji v. Govern-
ment of Bombay, 12 Bom. H. C. E. App. 68 ss.
(d) Vyakuntha Bapuji v. Government of Bombay, 12 Bom. H. C. E. App. 50.
(e) See Babaji and Nanaji v. Narayan, I. L. E. 3 Bom. 340; Tarachand
Pirchand v. Lakshman Bhavani, I. L. E. 1 Bom. 91, and the cases referred
to at p. 94.
(/) Prataprav Gujar v. Bayaji Namaji, I. L. E. 3 Bom. 141. The mirasi
holdings may be compared with the customary tenancies of the North of
England ; see Burrell v. Dodd, 3 Bos. & P. 378.
ig) As in Bhau Nanaji v. Sundrabai, 11 Bom. H. C. E. 249, and the cases
there referred to.
(h) Myna Boyee v. Ootaram, 8 M. I. A., at p. 420; Balkrishna Trimbak v.
Savitribai, I. L. E. 3 Bom. 54.
(t) Comp. Maine's Anc. Law, Chap. VI., p. 188 (3rd ed.).
(k) Rajender Dutt v. Sham Chund Mitter, I. L. E. 6 Cal., at p. 115.
Comp. Clark, Early Eom. Law, pp. 117 ss.
(I) But only such. Thus an agreement by which an adopted son resigned
the bulk of the family property to his adoptive mother was pronounced void.
Q. 15 MS.
LIMITATIONS OF PROPERTY. 179
recognition by the State of individual freedom in dealing with
property, while the freedom is coupled with a present interest,
and a capacity for varying the management according to circum-
stances (m). But 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 appropriation and use of
the property to impose terms on its enjoyment by others (n).
Thus by will the owner may make such dispositions only as the
law (o) allows as consistent with the general welfare (p). The
Hindu law does not tolerate the abeyance of an estate (q). 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 tliat way (r). The owner may make a gift or a will which, as
to property fully at his disposal (s), 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 (t). The immediate
beneficiary may be limited to a life-interest if the remainder is
given to a person in existence at the time of the gift ; and a will
(m) See Col. Dig., Book II., Chap. II. T. 12, Comm. ; T. 24, Coram.
(n) " Quatenus juris ratio patitur." The general subordination of private
property and its disposal to the discretion of the sovereign under whose pro-
tection it is enjoyed is insisted on by Jagannatha in Col. Dig., Book II.,
Chap. IV, T. 15, Comm. Comp. Laboulaye, Hist, du Droit de propri^te
Fonciere, p. 62.
(o) Including the custom of his province, caste or class. See Col. Dig.,
Book v., Chap. V. T. 365; Sreemutty Kristoromoney Dossee v. Maharajah
Norendro Krishna Bahadur, L. K. 16 I. A. 29 ; Tarakeswar v, Shoshi, L. K,
10 I. A, 51,
(p) Kumara Asima Krishna Deh v. Kumara Kumar Krishna Deb, 2 Beng.
L, E, 11 0, C, J,
(q) Nilcomul Lahuri v. Jotendro Mohun Lahuri, I, L, E, 7 Cal, 178,
(r) "A man cannot create a new form of estate or alter the line of succes-
sion allowed by law for the purpose of carrying out his own wishes or views of
policy," per Turner, L.J,, in Soorjimony Dossee v. Deenohundo Mullick,
6 M. I. A., at p, 555. A mahant has no power to say who shall succeed his
own successor, Greedharee Doss v, Nundkishore Dutt, 1 Marsh. 573; S. C.
11 M. I. A. 405 ; Raikishori Dasi v. Dehendranath Saicar, L, E, 15 I. A, 37 ;
L. E. 16 I, A. 29 ; L. E. 10 I. A. 51.
(s) See Lakshman v. Ramchandra, I. L, E, 5 Bom, 49; Harihhat v,
Damodarhhat, I. L, E. 3 Bom, 171, See The Testamentary Power, p. 215,
(t) Maccundas v, Gawpatrao,' Perry's Or, Cases, 143; see Annantha Tirtha
Chariar v. Nagamuthu Amhalagaren, I, L, E. 4 Mad, 200; Mokoondo Lai
Shaw V. Ganesh Chunder Shaw, I. L. E, 1 Cal. 104.
180 HINDU LAW. [book I.
speaks at the death of the testator, but as by the Hindu law of
the Mitakshara School there must be some one in existence to
take a gift (v) as well as to bestow it, a bounty to persons unborn
or who may be bom or unborn according to circumstances cannot
take effect (w). An attempt to provide for unborn grandchildren
of the donor by a gift for their benefit to a son-in-law was declared
by the Sastri to bo void on account of the partial reserve of the
ownership which this involved (x).
There is an exception in the case of public grants (y) of the
nature of jagirs (z) or of watans for the support of a family or
to maintain a public office (a), but not one extending the power
of private disposal. To these grants effect must be given accord-
ing to the intention of the Sovereign power in making the grant,
which itself may make the estate impartible (b) and determine
the mode of devolution (c).
(v) Comp. the Transfer of Property Act IV. of 1882, sees. 122, 129. A
distinct change of physical possession, though generally necessary (see below.
Book II., Introd., Signs of Separation), is dispensed with in the case of a wife
or an infant or other wholly dependent person who is obviously benefited,
under circumstances in case of an absent person, and where the exercise of
the right does not consist in or require possession. 2 Str. H. L. 26; ibid. 7,
427 ; Lalubhai Surchand v. Bai Amrit, I. L. K. 2 Bom. 299, 326 ; Bai Suraj v.
Dalpatram Dayashankar, I. L. K. 6 Bom. 380, 387. In Bengal, it is said, in
Narain Chunder Chuckerhutty v. Dataram Roy, I. L. R. 8 Cal., 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 IV.
of 1882, sec. 54, the mere concurrence of the will of the contracting 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.
(w) See Soorjee Mony Dossee v. Deenhundo Mullick, 9 M. I. A. 123; Tagore
V. Tagore, L. R. S. I. A., at pp. 67, 70, 74; Rajendar Dutt v. Sham Chunder
Mitter, I. L. R. 6 Cal. 116.
(x) See Digest of Vyavasthas I., Chap. II., sec. 7, Q. 17.
iy) As to jurisdiction in such cases, see Act 23 of 1871 and Maharaolal
Mohansingji Jeysingji v. The Government of Bombay, L. R. 8 I. A. 77.
(z) As to these, see Ramchandrarao Narayan Mantri v. Venkatrao Madhava
Mantri, Bom. H. C. P. J. F. 1882, p. 234, and the cases cited there.
(a) See now Act 23 of 1871, Bom. Act III. of 1874; Radhabai v. Anantrao,.
I. L. R. 9 Bom. 198.
(b) See Raja Lelanund Sing Bahadoor v. The Bengal Government, 6 M. I. A.,
at p. 125; Radha v. Buddah, I. L. R. 22 Cal. 938; Bhimapaiya v. Ramchandra,
I L. R. 22 Bom. 422 ; Madhava v. Sridhar, I. L. R. 37 Bom. 409.
(c) See Ramchandrarao Narayan Mantri v. Venkatrao Madhava Mantri,
Bom. H. C. P. J. F. 1882, at p. 233; Gulabdas Jagjivandas v. The Collector
of Surat, L. R. 6 I. A. 54 ; Raja Nilmony Singa v. Bakranath Sing, decided by
LIMITATIONS OF PROPERTY. 181
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 must be presumed to have been, made for the
support of an hereditary line of performers of rehgious functions
for which such succession was necessary or at least proper. The
decision against a dealing by the officiating 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 con-
nexion a different rule applies (d) ; they can operate only within
the lines prescribed by the general law, as Government grants also
do in the absence of special limitations expressed or implied in
the nature of the grant (e). This applies to a Toda Giras hak as
distinguished from a pension (/), as to all ordinary Inams (g).
It is thus, apparently, that we must understand and apply the
decision of the Judicial Committee in Surjeemonee Dossee's
Case (h). A Hindu may by settlement or by will dispose 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 " (t),
but a gift cannot take effect unless the event upon the happening
of which it is made contingent has happened before the testator's
death (fe). For the Bombay Presidency the power of a Hindu to
make a testamentary disposition of whatever is his absolute pro-
perty is now clearly established (I). So also in the North- West
the P. C. on 10th March, 1882; S. C. L. E. 9 I. A. 104; Ellis in 2 Str.
H. L. 364, 366. Comp. Maine's Anc. Law, p. 230.
(d) Gulahdas Jagjivandas v. The Collector of Sural, L. K. 6 1. A., at p. 62.
(e) 1 Str. H. L. 209, 210 ; Ramchandra Sakharam Vagh v. Sakharam Gopal
Vagh, I. L. E. 2 Bom. 346; Sanniyasi Razu v. Sahir Zemindar, I. L. E.
7 Mad. 268; Mahadevi v. Vikrama, I. L. E. 14 Mad. 375; Radha v. Buddha
I. L. E. 22 Cal. 938.
(/) Ganeshgiri Gosava v. Baha bin Ramapa Naik, Bom. H. C. P. J. F. for
1881, p. 96.
ig) See below. Digest of Vyavasthas, Chap. II., sec. 6 A, Q. 8; Steele, L. C.
206; Padapa v. Swamirao, L. E. 27 I. A. 86; S. C. I. L. E. 24 Bom. 556;
Appaji V. Keshav, I. L. E. 15 Bom. 13.
(h) 9 M. I. A. 123; see Bhoohun Mohini Dehya v. Hurrish Chunder
Chowdhry, L. E. 5 I. A. 138; Ram Lai Mookerjee v. Secretary of State for
India, L. E. 8 1. A., at p. 61.
(t) 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, 72, 76.
(k) Narendra Nath Sarcar v, Kamalbansi, L. E. 23 I. A. 18.
(l) Bhagvan Dulahh v. Kala Shankar, I. L. E. 1 Bom. 641 ; Laskshmihai v.
Gunpat Moroba, 5 Bom. H. C. E. 136, 138, 139 0. C. J. ; Baboo Beer Pertah
Sahee v. Maharajah Rajender Pertab Sahee, 12 M. I. A. 1, 37.
182 HINDU LAW. [book I.
Provinces under the Mitakshara (m) and in Madras (n). But the
nature and extent of the power are not to be '' governed by any
analogy to the law of England " (o). " The law of wills has grown
up from a law which furnishes no analogy but that of gifts (p),
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 " (q), and by any construction
of the text laid down by authority, although it may not commend
itself to the judgment of the Court (r). 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 Hindu law, and void, and that upon the expiration of the first
life-interest, the appellant, the testator's only son, was entitled
as heir to the estate " (s). The allowance of wills was not really
opposed to the principles of the Hindu law, as will be shown here-
after (t). It was merely a development of the principles already
recognised, quite analogous to that which the English law of
devise has undergone in the course of three centuries; but the
Hindu law requiring a disposition to be in favour of some definite
object existing when it is declared, many arrangements possible
under the English law cannot be made.
In Shoshi Shikhuressur Roy v. Tarokessur Roy (v) 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
test^ator'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
(w) Nana Nurain Rao v. Huree Panth Bhao, 9 M. I. A. 96; Adjoodhia Gir
V. Kashee Gir, 4 N. W. P. H. C. E. 31.
(n) Nagalutchmee Ummal v. Gopoo Nadaraja Chetty, 6 M. I. A. 309; Cole-
brooke in 2 Str. H. L. 435 ss.
(o) Mt. Bhoohun Moyee Dehia v. Ram Kishore Acharj Chowdhry, 10 M. I. A.
279; per Turner, L. J., in Sonatun Bysack v. Sreemutty Jug guts oondree
Dossee, 8 M. I. A. at p. 85.
(p) 2 Str. H. L. loc. cit.
(q) Tagore Case, L. E. S. I. A. at p. 68.
(r) Bai Kesserhai v. Morariji, I. L. E. 30 Bom. 431, P. C.
(s) Ganendro Mohun Tagore v. Rajah Juttendro Moliun Tagore, L. E. 1
I. A. at p. 392.
(t) See below on the Testamentary Power.
(v) I. L. E. 6 Cal. 421 ; S. C. L. E. 10 I. A. 51.
LIMITATIONS OF PROPERTY. 183
was only entitled to a life-estate. In Sreemutty Kristoromoney
Dossee v. Maharajah Norendro Krishna (lo) it was held that a
Hindu could not create an estate of inheritance unknown to the
Hindu law. He may, however, create an absolute estate subject
to be defeated by a subsequent event, provided (1) that the event
must happen, if at all, immediately on the close of a life in being
at the time of the gift, and (2) that the gift over must be in
favour of somebody in existence at the time of the gift.
As the law of wills follows the law of gifts, though with some
differences (x), it will be understood that a grant in favour, partly,
of persons not in existence at the time of execution so far fails (y)
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 " (z), what is meant is that such estates
and interests, and such only, as the law recognises can be con-
ferred or created (a). No one really intends to give an estate
which shall 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 " (h). 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 unmarketable; and this conviction arrived
at by the rulers would of itself justify them, according to the
(w) L. E. 16 I. A. 29.
(x) Kherode Money Dossee v, Doorga Money Dossee, I. L. E. 4 Cal. at
p. 472; Lakshman Dada Naik v. Ramchandra Dada Naik, I. L. E. 6 Bom. 48;
Tarachand v. Reeh Ram, 3 Mad. H. C. E. at p. 65.
(y) Soudaminey Dossee v. Jogesh Chunder Dull, I. L. E. 2 Cal. 262;
Kherodemoney Dossee v. Doorgamoney Dossee, I. L. E, 4 Cal. 455; Rajender
Dutt V. Sham Chund Mitter, I. L. E. 6 Cal. at p. 116 ; Sir Mangaldas Nathu-
hhoy V. Krishnabai, I. L. E. 6 Bom. 38.
(z) Rajender Dutt v. Shamchund Mitter, I. L. E. 6 Cal. at p. 116. See also
Anantha Tirtha Chariar v. Nagamuthu Amhalagaren, I. L. E. 4 Mad. 200;
Ashutosh Dutt v. Doorga Churn Chatterjee, L. E. 6 I. A. 182; Sookhmoy
Chunder Dass v. Manohurri Dasi, L. E. 12 I. A. 103; Raikishori Dasi v.
Dehendranath Sircar, L. E. 15 I. A. 37.
(a) See per Willes, J., in the Tagore Case, L. E. S. I. A. at p. 65.
(h) Per Lord Brougham in Keppell v. Bailey, 2 Myl. and K. 517.
184 HINDU LAW. [BOOK I.
Hindu law, in prescribing the necessary restraints (c) and
refusing to give legal effect to any transaction not falling within
the recognised 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 contained the
words " no other heirs of yours (than lineal descendants) shall
have any right or interest," which it was said went to create an
estate tail in the descendants contrary to the Hindu law, the grant
was construed as one of the whole interest in the property subject
to defeasance should the grantee die without children (/), and a
gift to a sister of a share in a village for maintenance, with the
words " on your death, your husband, sons, grandsons and other
heirs in succession will continue to enjoy and possess the power of
disposal by gift or sale," was held to confer on her a heritable
estate (g). Unambiguous dispositive words in a will, however,
are not to be controlled or qualified by any general expression of
intention (h). Where a Hindu widow in Bengal takes her hus-
(c) See Narada, quoted Macn. H. L. 152; and Col. Dig., Book III., Chap. II.
T. 28.
id) Tagore Case, L. E. S. I. A. at p. 64. Domat's C. L., sec. 2413.
(e) See Sreemutty Rabutty Dossee v. Sihchunder Mullick, 6 M. I. A. 1 ;
Sreemutty Soorjeemoney Dossee v. Denohundo Mullick, ibid, at p. 550; Radha
Jeebun Moostuffy v. Taramonee Dossee, 12 M. I. A. 380; Bhoobun Mohini
Debya v. Hurrish Chunder Chowdhry, L. E. 5 I. A. at p. 147.
(/) Bhoobun Mohini Debya v. Hurrish Chunder Chowdhry, L. E. 5 I. A. 138.
See Krishnarav Ganesh v. Rangrav, 4 Bom. H. C. E. 1 A. C. J.; and Bahirji
Tannaji v. Oodatsing et al.. Bom. H. C. P. J. F. 1872, No. 33; Rajah Nursing
Deb V. Roy Koylasnath, 9 M. I. A. 55.
In the case of a grant to a Nadgavda (a headman of a district) by Tippu
Sultan, it was contended that the expression " aulad aflad " in the Persian
implied and necessitated a descent different from what the Hindu law pre-
scribed in a family subject to a rule of impartibility. It was ruled, however,
that the words might be construed as meaning " hereditary not merely per-
sonal," and it was said " the precise devolution of the estate would never-
theless 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 ofi&ce to which it was attached." Timangavda v. Rangangavda,
Bom. H. C. P. J. F. 1878, p. 240, at p. 242. Comp. Ram Lai Mookerjee v.
Secretary of State for India, L. E. 8 I. A. at pp. 61-62; Rajah Venkata Nara-
simha Appa Rao v. Raja Narayya Appa Row, L. E. 7 I. A. pp. 38, 48, 49;
and as to the preservation of the estate for the intended purpose, see Raja
Nilmoney Sing v. Bakranath Sing, L. E. 9 I. A. 104.
ig) Basant Kumari Debi v. Kamikshaya Kumari, L. E. 32 I. A. 181.
(h) Lalit Mohun v. Chukkanlal, L. E. 24 I. A. 76.
LIMITATIONS OF PROPERTY. 185
band's share by arrangement with his brethren, the instrument
will be construed with reference to the Hindu law in order to
determine the est-ate she has obtained (i), but in the case of
Musst. Bhaghutty Daee v. Chowdry BhoJanath Thakoor (k) the
Judicial Committee construed a will as a family settlement, com-
pleted 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 grant by a Hindu to his wife
must be specific, whether it is by way of maintenance or as
stridhan, for in the absence of such specific grant she takes only
a limited estate (I).
The Courts refuse effect to an intended perpetuity in favour of
mere private persons, even though it is disguised as a religious
endowment (m). It is only in such a form, perhaps, that a
perpetuity could be devised, as the creation of a right can be only
in favour of a person in existence at the time of the declara-
tion (n). An idol does not expire, and the emoluments of its
service may be limited to a family (o).
(t) Sreemutty Rahutty Dossee v. Sibchunder Mullick, 6 M. I. A. 1.
(fe) L. R. 2 I. A. 256.
(l) Braja Kishore v. Kudana, L. R. 26 I. A. 66.
(m) Shookmoy Chunder Dass v. Monohari Dassi, I. L. R. 7 Cal. 269. See
Kumara Asima Krishna Deb v. Kumara Kumara Krishna Deb, 2 Ben. L. R.
11 0. C. J.; Sookhmoy Chunder Dass v. Monohurri, L. R. 12 I. A. 103;
Raikishori Dasi v. Debendranath Sircar, L. R. 15 I. A. 39.
(n) Tagore Case, supra; Chundi Churn v. Sidheswari Debi, L. R. 15 I. A.
149.
(o) See below. The ideal personality of the idol is recognised in many cases,
as in Kondo v. Babaji, Printed Judgments for 1881, p. 337, and Juggodumba
Dossee v. Puddomoney Dossee, 15 Ben. L. R. 318. Under the Roman law the
res sacrae in the higher sense were dedicated to the public divinities, and this
dedication required the concurrence of the public authority. When Christianity
became the religion of the Empire the same principle was recognised, though
the object of the dedication was changed, and it found its way into England,
as into other countries, with an omission in great part of the 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 Hindus
in Narada's rule that " whoever gives his property away (that is, makes a
religious dedication, as gifts for merely secular purposes were discountenanced)
must have a special permission to do so from the king. This is an eternal law "
(Nar. Transl., p. 115). See Vyav. May. Chap. IV., sec. VII., para. 23.
Besides the higher r&s sacrae the Romans had the res sacrae of each family
descending as an integral part of its estate. These disappeared with the growth
186 HINDU LAW. [BOOK I.
According to the Viramitrodaya (p) a conditional gift is invalid
(as under the Mitakshara law). The instance adduced might be
construed as one of conditional defeasance. It is that of orna-
ments bestowed on a woman subject to a condition against using
them except at particular festivals. A gift so conditioned,
Mitramisra says, is void, but it seems rather that the gift is com-
plete but subject to a conditional defeasance (q), or else that the
condition or conditional revocation is void. It is a recognised
principle that a mere licence, however liberal, to a woman and to
her exclusively, to use ornaments on particular occasions (r), and
on those only, does not constitute a gift (s). The ownership
remains with the husband or other licensor, and forms part of the
property to be divided in a partition (t). A conditional gift is not
as such reckoned amongst those which are essentially void by
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 not in the former, the consensus of
the whole family may annul the dedication. Per Sir M. E. Smith in Koonwar
Doorganath Roy v. Ramchunder Sen, L. E. 4 I. A. at p. 58, and see Rajen-
dranath Dutt v. Shekh Mahomed Lai, L. K. 8 I. A. 135; Jaggut Mohini
Dossee v. Mt. Sokheemoney Dossee, 14 M. I. A., at p. 302; see also Maharanee
Brojosoondery Dehea v. Ranee Luchmee Koonwaree, 20 C. W. K. 95 ; Suhharaya
Gurukal v. Chellappa Mudali, I. L. E. 4 Mad. 315 ; Venkateswara lyan v.
Shekhari Varma, L. E. 8 I. A., at p. 149; Khusalchand v. Mahadevgiri,
12 B. H. C. E. 214 ; Manohar Ganesh v. Keshavram Jebhai, Bom. H. C. P. J.
1878, p. 252; Dhadphale v. Gurav, I. L. E. 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. E. 152. The inalienable
character of land consecrated to religious purposes has been generally recog-
nised under the Eoman, Christian, and Mahomedan systems as well as by the
Hindu 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
Tem. Eccles. Ch. VI. Ham. Hed. B. XV. As to the respect due to sacred
property under different circumstances see Grotius, De Jur. B. et P. Lib. III.
Cap. V. § II., compared with Vyav. May. Chap. IV. sec. I. para. 8.
(p) Transl., p. 221.
(q) Comp. the Transf. of Prop. Act, IV. of 1882, sec. 126.
(r) Vishnu VII. 22.
(s) Kurnaram Dayaram v. Hinihhay Virbhiin, Bom. H. C. P. J. F. 1879,
p. 8. See below on Stridhana. Under the English law a gift by a husband to
his wife of ornaments makes them part of her paraphernalia, of which she
cannot dispose without his assent during his life. See Graham v. London-
derry, 3 Atk. 394.
(t) Infra, Book II. Introd. § 5 B. ad fin. ; Vyav. May. Chap. IV. sec. VII.
para. 22; 2 Str. H. L. 424, 370.
LIMITATIONS OF PROPERTY. 187
Narada (v). The word upadhi, which Mitramisra construes as
*' condition," usually implies fraud (w), and every gift, it would
seem, is by the strict Hindu law accompanied by a tacit condition
of revocation if the intended purpose be not fulfilled {x}. Eegard
being had, then, to the principle that a decision in such cases
must be governed by the reason of the law (y), it seems that a
condition subsequent does not invalidate a gift (z), though a
condition precedent may do so through preventing any present
change of ownership or of possession as owner (a), while a con-
dition subsequent which is repugnant to the estate, granted as
recognised by the law, is to be deemed void (h). Now ownership,
when it subsists singly, is recognised as consisting in a right to
(v) Transl. p. 59; Vyav. May. Chap. IX. 6. Comp. Lachmi Narain ▼►
Wilayti Begam, I. L. K. 2 All. 433.
(w) See Col. Dig. Book II. Chap. IV. sec. II. T. 54, Comm.
(x) Narada, Transl. p. 60; Col. Dig. Book II. Chap. IV. T. 53, 56, Comm. ■,
Manu. VIII. 212.
iy) Col. Dig. Book II. Chap. IV. T. 28, Comm, sub fin.
(z) Ram Lall Mookerje v. Secretary of State for India, L. K. 8 I. A. 46.
(a) See Digest of Vyavasthas, Chap. II., § 7, Q. 17.
(h) Under the Eoman 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, Chap. VI., p. 206 (3rd edition), Goud. Pand. 156, 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, though the fulfilment is deferred.
That a condition subsequent could not be annexed to marriage was held in
Seetaram alias Kerra Herra v. Musst. Aheeree Heeranee, 20 C. W. E. 49 C. R.
Whether a father giving his son in adoption can abandon the son's rights
arising from the adoption, as ruled in Chitko Raghunath v. Janaki (11 Bom.
H. C. E. 199) was questioned by the Privy Council in Ramasawmi Aiyan v.
Vencataramaiyan, L. E. 6 1. A., at p. 208, and the High Court of Madras has
declared that the adopted son, on attaining his majority, may get any such
arrangement set aside. See Lakshamana Rau v. Lakshmi Ammal, I. L. E. 4
Mad., at p. 163. An agreement was pronounced null by the Sastri 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 Sastri 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 HINDU LAW. [BOOK T.
deal with the object owned at pleasure (c), and though some kinds
of property cannot be freely disposed of by the representative
owner, either on account of other persons being interested or
because of the necessary preservation of the corpus of the
property for particular purposes (d), yet generally the ownership
implies a power of alienation, (e) as well as of use and abuse,
except so far as the public law may be infringed (/) by any pro-
posed dealing with the property. A grant, therefore, of owner-
ship or a will (g) with a condition against alienation or the other
common uses of ownership operates, while the condition is void
as repugnant to the ownership created (h) ; but in Sookhmoy
Chunder Dass v. Manohurri (i) it has been held that a gift
simply of the enjoyment of the profits with the object of creating
a perpetuity voided the whole will. It must be assumed that
the grantor rather intended his act to be effectual 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 com-
mands or engagements which would violate their " dharm " or
cause mischief to the community (k). But the grantor may
stipulate or provide for various advantages to himself or to
others (l) arising out of the property, and so far diminish the
advantages of the proprietor in it. Co-owners, too, may make
similar arrangements inter se as to their common property (m),
reserving rights, for instance, to themselves in stat-ed mutual
(c) See Viramit., TransL pp. 34, 13^. Narada, quoted Col. Dig., Book II.,
Chap. IV. T. 6.
(d) Narayan v. Chintamon, I. L. E. 5 Bom. 393. See above, p. 181.
(e) Narada, ut supra; Col. Dig., Book II., Chap. IV. T. 30, Comm. ; Viramit.
Transl. p. 138.
(/) Col. Dig., Book III., Chap. II. T. 28.
ig) Cally Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry,
I. L. E. 8 Cal. 378.
(h) In the case of a charitable endowment an opposite principle prevails.
Property sold in execution of a decree against a Mahant who had mortgaged it
was recovered by the Vairagis 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 February, 1852.
(t) L. E. 12 I. A. 103.
(k) See Manu., Chap. VIII., sec. IV., para. 1; Col. Dig., Book III.,
Chap. II. T. 28.
(Z) Cally Nath Naugh Chowdry v. Chunder Nath Naugh Chowdhry, 1. L. E.
8 Cal. at p. 388.
(m) Nilkanth Ganesh v. Shivram Nagesh, Bom. H. C. P. J. F. 1878, p. 237.
LIMITATIONS OF PROPERTY. 189
relations during and after a life interest which they join in
granting (n). These stipulations the grantee personally must
observe, and so must his heirs, as the Hindu law attaches a
sacred value to a promise (o), but how far precisely they adhere
to the property in the hands of alienees — that is, to use the
English phrase, " run with the land " — can be determined only
by degrees as actual cases arise (p). The Hindu law emphatically
bids the judge to prevent the success of a fraud (q), and thus not
only the doctrine of enforcing a representation which has been
acted on (r), but of the obligation passing with the ownership (s)
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 Hindu law as with the English law (t). The law of
Kegistration now enables every one who reserves any part of the
ownership in property of which he is disposing to give virtual
notice of this to every future purchaser (v). 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 (w).
The law of gift has been discussed with great subtlety by the
Hindu 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 insisted on (x) as a means
(n) 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. E.
2 All. 809.
(o) Narada IV., 5, Transl. p. 59; Vyav. May. Chap. IX., sec. II. ss. ; CoL
Dig., Book II., Chap. IV. T. 3, 4, 5.
(p) See Transf. of Prop. Act, IV. of 1882, § 40.
(g) Manu. VIII. 165; Col. Dig., Book IV. T. 184; Vyav. May. IX. 10.
(r) See per Lord Cottenham in Hammersley v. De Biel, 12 C. F. 61 n.
is) Western v. MacDermott, L. E. 2 Chap. Ap. 72; Leech v. SchwedeVy
L. E. 9 Ch. A. 465, 475.
(t) Juggutmohinee Dossee v. Sookhemoney Dossee, 17 C. W. E. 41 C. E.
(v) See Act III. of 1877; Transf. of Prop. Act IV. of 1882, § 54, 59, 107,
123; Ichharam Kalidas v. Govindram Bhowanishankar, I. L. E. 5 Bom. 653;
Sobhagchand v. Khupchand Bhaichand, I. L. E. 6 Bom. 193; Bapuji Balal v.
Satyahhamahai, I. L. E. 6 Bom 490.
(w) Comp. Tarachand v. Lakshman, I. L. E. 1 Bom. 91.
{x) See Viramit, Tr. p. 31 ss; Dayabh., Chap. I., paras. 21-24; 2 Str. H. L.
190 HINDU LAW. [BOOK T.
of completing a gift; but Jagannatha points out that a debtor
releases himself by assigning something yet to come into exist-
ence (y), and that an assignment of a periodical income operates
necessarily through a past volition on each instalment as it falls
due (z). Hence, he says, the gift of property is valid though it
be accompanied by the donor's retention of a life interest (a),
and so in the case of Muhalukmee v. Three grandsons of Kripn-
shookul (h), it was said that a gift in Krishnarpan (religious
charity) was good though possession was retained by the owner (c).
In the case at 2 Macn. H. 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 remainder arising on the
donor's death to a mere equitable right (d), but the creation of
the deferred right is at any rate not inconsistent with the Hindu
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 future (/). In the case of a near
relation a mere gratuitous agreement thus becomes binding,
though as between strangers void (g). As to all persons, how-
ever, it is said " Nothing in this section shall affect the validity
427; Vithalrav Vasudev v. Chanaya, Bom. H. C. P. J. F. 1877, p. 324. Comp.
the Transf. of Prop. Act, IV. of 1882, § 122, 124.
(y) Col. Dig., Book II., Chap. 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.
(z) See Collector of Sural v. Pestonji Ruttonji, 2 Morris 291, cited in
Maharaval Mohansingji Jeysingji v. The Government of Bombay, L. R. 8 I. A.
at p. 84. But in the case of Bahu Doolichand v. Bahu Birj Bhookan (decided
4th February, 1880) the Judicial Committee declined to affirm the principle
that a merely expectant interest can be the subject of sale under the Hindu
law. It is improbable, their Lordships say, that the principle of the English
law, which allows a subsequently acquired interest to feed the estoppel can be
applied to Hindu 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.
(a) Col. Dig., Book II., Chap. II. T. 43, Comm.
(b) 2 Borr. R. at 561.
(c) See, however, Lalubhai Surchand v. Bai Amrit,l. L. R. 2 Bom. at p. 331.
(d) See Lalubhai Surchand v. Bai Amrit, I. L. R. 2 Bom. at p. 331.
(e) Ibid., pp. 319, 332.
(/) Abadi Begam v. Asa Ram, 1. L. R. 2 All. 162. See Act III. of 1877,
sec. 60; Transfer of Property Act, IV. of 1882, sees. 54, 58, with sec. 5 where
the Act is in force.
(g) Indian Contract Act, IX. of 1872, sec. 25.
LIMITATIONS OF PROPERTY. 191
as between the donor and donee of any gift actually made " (h).
When the " gift is actually made " is left apparently to bo
governed by the law of the parties (i), and so amongst the
Hindus by principles already partly considered (k). 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 (Z).
The distinction which the legislature had in view was probably
one between the donor and his representatives on the one hand
and his creditors or persons having claims on the property on
the other, A Hindu 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 stepsons to recover her main-
tenance, 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 (m).
By the Hindu law, sale of land to be effectual had formerly to
take the shape of a gift (n). The rule as to delivery and
(h) No reference to the enactment is made in the case of Nasir Husain t.
Mata Prasad, I. L. E. 2 All. 891.
(t) See the Transfer of Property Act, IV. of 1882, sees. 122, 124.
(h) Under the English as under the Hindu law (see Col. Dig., Book V. T. 1,
Comm. (vol. II. p. 514 Lond. edition, vol. II. p. 191 Madr. edition), " It
requires 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 C. A. 896. But see also per Lord
Mansfield in Taylor v. Horde, 1 Burr, at p. 124.
(/) As to coparceners see Pandurung v. Nam, Sel. Rep. 186 ; Lakshman
Dada Naik v. Ramchandra Dada Naik, L. R. 7 I. A. 181; S. C. I. L. R. 5
Bom. 48 ; Suraj Bansi Koer v. Sheo Proshad Singh, L. R. 7 I. A. 88.
(m) Narhadabai v. Mahadev Narayan, I. L. R. 5 Bom. 99.
(n) Laluhhai Surchand v. Bai Amrit, I. L. R. 2 Bom. 299; 1 Str. H. L. 19.
The exception of religious gifts from the general inalienability of the family
estate under the early Hindu 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
interested. See Lex Sax. XV. ; Laboulaye Histoire du Droit de Propriety
192 HINDU LAW. [BOOK I.
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 mere gratuitous
promisee (o), 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 unknown
to the law, or give to his property an eccentric mode of devolu-
tion, and though his powers in these respects are more narrowly
restricted by the Hindu than by the English law (p), yet he can
carve out of his ownership many interests which his successors
must recognise (q). 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 (r). As to the inherit-
ance, his son's equal rights do not prevent him from burdening
it with debts not prodigally or profligately incurred (s). If he
dies with debts unsettled, but not secured by a specific lien, they
do not form a charge on the estate itself (t), though the heirs
taking the estate are so far answerable (v). It is assets for the
discharge of the father's debts (w). A gift within reasonable
Fon9iere en Occident, Lib. VIII., Chap. 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. I., 131; Elt. T. of Kent, pp. 15, 16; Mit. Chap. I.,
sec. I., para. 32; Vyav. May. Chap. II., sec. 1, para. 2; Col. Dig., Book II.,
Chap. IV. Text 33; Book V., Chap. VII. T. 390.
(o) See Col. in 2 Str. H. L. 433, 434.
(p) 1 Str. H. L. 25.
(g) See Girdharee Loll v. Kantoo Lall, L. E. 1 I. A. 321; Suraj Bunsi Koer
V. Sheo Proshad Singh, L. E. 6 I. A. at p. 104; Jatha Naik v. Venktapa,
I. L. E. 5 Bom. at p. 21. The second proviso in Eule IV., sec. 11, Madras
Act 8 of 1865 does not apply to leases which are bond fide and valid under the
general Hindu law — only when they are a fraud upon the power of the
grantor's successor as manager and to the prejudice of the successor.
(r) See Mit., Chap. I., sec. I., para 27; Vyav. May., Chap. IX., sec. 5;
Smriti Chand, Chap. II., sec. I., paras. 22, 24, qualifying Chap. VIII.,
para. 25; Madhavya, paras. 16, 5; Col. in 2 Str. H. L. 439, 441; Varadraja,
pp. 5, 8; et infra, Book II., Chap. I., sec. 2, Q. 2 and Q. 8.
(s) Col. Dig., Book II., Chap. IV. T. 15, Comm ; Hunooman Persaud Panday
V. Musst. Babooee Munraj Koonweree, 6 M. I. A. at p. 421.
(t) Girdharee Lall v. Kantoo Lall, L. E. 1 I. A. 321; Jamiyatram v. Par-
hhudas, 9 Bom. H. C. E. 116.
{v) Oolagappa Chetty v. Hon. D. Arbuthnot and others, L. E. 1 I. A. 268.
(w) Muttayan Chettiar v. Sangili, L. E. 9 I. A. 128.
LIMITATIONS OF PROPERTY. 193
limits to any child must be given effect to (x), and so must a
provision for a wife, a concubine, or an illegitimate cliild (y).
These dependants are indeed entitled as of right to a provision
even against the terms of a will (z) or a gift (a), though 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 (b).
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 common good or under pres-
sure of some severe necessity (c). When there are no eons or
(x) Viramit. Trans., p. 251; 1 Str. H. L. 24. A gift by a Joshi of a
material part of his vatan to his daughter's children was pronounced void as
against his adopted son, who, however, it was said, must make good a present
of a reasonable portion, Q. 712 MS. The testamentary power under the Eoman
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. VII., p. 218 (and this section suh fin). Bachoo
V Mankorebai, I. L. E. 31 Bom. 373, P. C. ; Kamakshi v. Chakrapay, I. L. E.
30 Mad. 452.
iy) Salu V. Hari, Bom. H. C. P. J. F. 1877, p. 34; Rahi v. Govinda,
I. L. E. 1 Bom. 97. The mistress, it was said, must not alienate the house
given to her by her patron, Q. 712 MS.
(z) Comulmoney Dossee v. Ramanath Bysack, 1 Fult. 189.
(a) Narhadahai v. Mahadev Narayan, I. L. E. 5 Bom. 99; Jamna v. Machul
Sahu, I. L. E. 2 All. 315.
The Hindu jurists who recognise the power of a father to make away with
the patrimony, though he incurs sin in doing so, point to remedies analogous
to those provided by the Eoman law. The son has a right of interdiction to
prevent improvident alienations. Mit., Chap. I., sec. VI., paras. 9, 10; and
this, the Sastri said, applied equally to the adopted son and the brother, Q. 1735
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., Book II., Chap. IV., sec. 2, T. 53, 54. Comp. Vyav. May., Chap. IX., 3,
6, 7. For the Eoman law see Voet ad Pand. Lib. XXVII. T. X., paras. 3, 6,
7; Inst. Lib. II. Tit. XVIII. , and Voet ad Pand. Lib. XXXIX. Tit. V.,
paras. 36, 37; Ortolan ad Inst. § 787 ss. 799; Poste's Gains, pp. 51, 205;
Mommsen, Hist, of Eome, Book I., Chap. XL, Eng. Transl., vol. I. p. 161.
(b) Natchiarammal v. Gopal Krishna, I. L. E. 2 Mad. 126.
(c) Mitak., Chap. I., sec. I., paras. 28, 29; 2 Str. H. L. 342; Col. Dig.,
Book I., Chap. V. T. 180, 181; Ram Ratan v. Lachman Das, I. L. E. 30,
All. 460; Aghore Nath v. Grish Chunder, I. L. E. 20 Cal. 18; Sakharam v.
Devji, I. L. E. 23 Bom. 372; Baldeo v. Moharak, I. L. E. 29 Cal. 683;
Raghunathji v. Bank of Bombay, I. L. E. 34 Bom. 72; Sanka Krishna v.
Bank of Burma, 1. L. E. 35 Mad. 692; Bishambar v. Sheo, I. L. E. 29 All.
166.
^^166.
H.L. 13
194 HINDU LAW. [BOOK I.
grandsons holding a joint estate with the ancestor the line of
succession is prescribed by law; but, subject to provisions for
maintenance, the property is entirely at the disposal of the owner
notwithstanding the existence of collateral heirs (d).
There does not seem to be good authority for saying that the
person giving property to the members of a Hindu family can
impose on them such terms as that they shall become divided or
remain undivided (e). The decision in Ganpat v. Moroba (/) may
have proceeded upon a misapprehension of Balambhatta's com-
ment on the Mitakshara, Chap. I., sec. II., para. 1 (g). Sons
cannot be made separate inter se against their will, since parti-
tion itself is defined as a particular kind of intention (h), in the
absence of which, therefore, it does not exist. So the declaration
of such intention will constitute partition, and cannot be pre-
vented (i). The grantor may bestow separate interests on
members of a joint family, or a joint interest on separated
members; but he cannot thus effect their status, inter se. As
separate properties may be held by members of a united
family (k), 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 (I), but their interests and mutual relations are in such
a case, and without a reunion, essentially different from those of
a joint Hindu family. The sacrifices continue separate, and this
makes a true unity of the family impossible. It follows that
property given to Hindus, 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 devolution, or by
accompanying conditions on matters which the Hindu law
intends to leave to the religious feeling (m) or the worldly
(d) See Col. in 2 Str. H. L. 15 ; above, p. 129.
(e) See Maccundas v. Ganpatrao, Perry's 0. Cases, 143.
(/) 4 Bom. H. C. K. 150 O. C. J.
ig) See infra. Book II., Introd., § 4 C.
(h) Vyav. May., Chap. IV., sec. III., para. 2; infra, Book II., Chap. III.,
S. 3, Q. 6; and Book II., Chap. IV., Q. 8.
(t) Mookoond Lall Sha v. Ganesh Chandra Sha, I. L. E. 1 Cal. 104;
Rajender Datt v. Sham Chand Mitter, I. L. E. 6 Cal. 106, 116; Girja Bai v.
Sadashiv, L. E. 43 I. A. 151; Kawal v. Budh Singh, L. E. 44 I. A. 159.
(k) See Vasudev Bhat v. Venkatesh Sanhhav, 10 Bom. H. C. E. at pp. 157,
158.
(I) See Rampershad v. Sheo Churn Doss, 10 M. I. A. 490.
(m) So under the Eoman law, see Goudsmit, Pand. p. 168.
LIMITATIONS OF PROPERTY. 195
wisdom of the owners for the time being (n). The law itself
prescribes many regulations for the preservation and weKare of
the family which is its principal care (o). It allows for the
varying rules of custom (p), and having done this gives but little
scope to the caprices of individuals. It accepts, indeed, a theory
more comprehensive even than Plato's (q) 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 (r).
The historical reason for the limit-ed powers of disposition
allowed to owners by the Hindu law is probably to be found in
the ancient idea of the inalienability of the patrimony (s). This
allowed mortgages but prevented sales (t). The mortgages were
usually accompanied with possession, and the lien by degree?j
became confused very often with ownership. Then gifts to
religious uses were highly commended (v). They were, in
principle at least, inalienable and irrevocable {w) even by the
(n) See Maccundas v. Ganpatrao, Perry, Or. Cases, 143, and Abdul Gannee
V. Husen Miya, 10 Bom, H. C. E. at p. 10.
(o) See 1 Str. H. L. 17.
(p) Col. Dig., Book v., Chap. V. T. 365.
(g) See Grote's Plato, III. 396.
(r) Col. Dig., Book II., Chap. IV., sec. II., Art. III.; Vyav. May.,
Chap. IX., paras 6, 8; Vivada Chintamani, Tr. pp. 82, 83.
(s) This may have been developed from the sacredness of the house and the
curtilage at a stage in which the labour of clearing the land from trees formed
the only appraisable element of the value of any holding. The lot was conse-
crated to those who had cleared it as a safeguard against invasion and aliena-
tion both. Comp. Grote's Plato III. 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 rude 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 kind 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, 121.
(t) Mit., Chap. I., sec. I., para. 32. See 5th Eeport on Indian Affairs,
p. 130, as to the mortgages of Canara redeemable after any lapse of time, and
Bhaskarappa v. The Collector of North Kanara, I. L. K. 3 Bom. at p. 525, and
comp. Tupper, Panj. Cust, Law, vol. II., pp. 89, 45.
(r) Mit., Chap. I., sec. I., para. 32; Manu. IV., 230, 235.
(w) Vyav. May., Chap. IX. 6; Chap. IV., sec. VII., paras. 21, 23; Col. Dig.,
Book v.. Chap. V. T. 395; Narayan v. Chintamon and Another, I. L. E. 5
Bora. 393; Maharanee Shihessouree Dehia v. Mothooranath Acharjo, 13 M. I. A.
at p. 273; The Collector of Thanna v. Hari Sitaram, Bom. H. C. P. J. F.
1882, p. 204; S. C. I. L. E. 6 Bom. 546.
196 HINDU LAW. [BOOK I,
sovereign, if the strongest imprecations on him who should
resume a grant could make them so (x). It was impossible that
these should be attended with the manifold limitations by which,
in dealing with purely secular 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 (y),
and were thus made equally without qualification or reserve.
The united family, however, providing by birth or by adoption a
heres necessarius in almost every case, and making the assent of
sons necessary for the disposal of immovable property (z), 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 Hindus during many centuries
favoured the natural immobility of an essentially religious law.
The manes had to be duly honoured (a), the present and tho
coming generation provided for (h), while little or nothing
occurred to tempt proprietors from the worn track of past cen-
turies. Although the widely spread Mohammedan rule for six or
seven hundred years did not interfere with the growth and con-
tinuance of Hindu states, and the development of a progressive
Hindu polity, nevertheless men were for the most part absorbed
in their families and their traditions as their centres of interest,
leaving the development of the law in the hands of the Brahmins,
whose power remained supreme owing to the policy of tolerance
and non-interference so common in the Mohammedan system of
government, while externally none of the astounding changes of
(x) It is interesting to compare with the familiar " 60,000 years in ordure "
in the Hindu 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 consecuturus diabolus." Marculf., Lib. II.
Form 1. See Lab. op. cit., p. 303, compared with Ind. Antiq., vol. XI.,
pp. 127, 162.
iy) Laluhhai Surchand v. Bai Amrit, I. L. E. 2 Bom., at p. 331; Col. Dig
Book v.. Chap. VII. T. 390; Mit. Ch. I., sec. I., para. 32.
(z) Mit., Chap. I., sec. I., para. 27; Rangama v. Atchama, 4 M. I. A. at
p. 103; Pandurang v. Nam, Sel. Eep. 186. See above, p. 191.
(a) Manu. IX., 1868.
(b) Mit., Chap. I., sec. I., para. 27.
LIMITATIONS OF PROPERTY. ' 197
physical circumstances which have marked the period of British
dominion arose to break the shackles of custom and to arouse
intelligence to new possibilities of making wealth and of dis-
pensing it. Some movement there was : the legislative and
systematising faculty showed itself in such works as those of
Apararka and of Kudra Deva (c), the mrityu -patra and the gift in
trust, the mortgage and the lease in their manifold forms sup-
plied a foundation on which a whole system of Hindu 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 hand, the circumstances were wanting in which
they could be organised. It was not until the British rule pre-
vailed that the Hindu, with endless incentives to mental activity,
began to adopt rules tending always to extension of the indi-
vidual's plastic power over property. The subsequent history
of the Hindu law, though it presents a development of several
purely indigenous principles, has been enormously influenced by
English notions. It is impossible, even were it desirable, that
these should be wholly cast aside : they are mostly in harmony
with the general mass of English thought which is leavening the
Indian 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 Hindu system, and has
carefully dwelt on the points of distinction (d). It has shown no
favour to any extension to India of the endless " dissipations '
of the ownership in minute and tangled 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 Hindu law
will go forward in a few and simple steps to the point of adapta-
tion to the actual needs of society without passing through those
(c) The Sarasvati Vilasa.
(d) See Tagore Case, passim, L. E. S. I. A. 47.
" The Hindu law contains in itself the principles of its own exposition. The
Digest subordinates in more than one place the language of texts to custom and
approved usage. Notjiing 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.
198 HINDU LAW. [BOOK I.
iDtermediate 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 impossible under
the Hindu law (e). 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 endowment (/). In creating such
an endowment there is a virtually unlimited power of disposal of
property fully owned (g), provided only that the support of the
family and its dependants be not impaired (h). The founder
may provide for successors to the immediate donee who have
still to come into being (f), and may in some measure prescribe
the mode of succession or the qualifications of the successors (k).
The idol, deity, or the religious object is looked on as a kind of
human entity (I), and the successive officiators in worship as a
corporation with rights of enjoyment but not generally of parti-
(e) In a case from Penang, where the English law prevails " as far as
circumstances will admit," it was held that the rule against perpetuities 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 Cheah Nev v. Ong Cheng Nev, L. E. 6 P. C. A. at p. 394.
(/) See 2 Str. H. L. 12, 13; Col. Dig., Book II., Chap. III. T. 43, Comm.
(g) Col. Dig., Book II., Chap. IV. T. 66, Comm.; T. 3; T. 33; Dwarkanath
Bysack v. Burroda Persaud Bysack, I. L. K. 4 Cal. 443; Lakshmishankar v.
Vaijnath, I. L. E. 6 Bom. 24.
(h) See 2 Str. H. L. 12, 16, 342; Col. Dig., Book II., Chap. IV. T. 10,
11 Comm. ; T. 18 Comm. ; Radha Mohun Mundul v. Jadoomonee Dossee^
23 C. W. E. 369; Juggutmohinee Dossee v. Sookhemony Dossee, 17 C. W. E.
41.
(i) Khusalchand v. Mahadevgiri, 12 Bom. H. C. E. 214.
(k) " Where the founder has vested in a certain family the management of
his endowment, each member . . . succeeds . . . per formam doni,'' so that
execution proceedings against one do not affect his successor in the endowment.
Trimhak Bawa v. Narayan Bawa, Bom. H. C. P. J. F. for 1882, p. 350; S. C.
I. L. E. 7 Bom. 188 : "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. Nundo Kissore Doss Mohunt, 11 M. I. A. at p. 421; 1 Str.
H. L. 210; 2 ibid. 364; Comp. Maine, Anc. Law, Chap. VII., p. 230.
(l) Maharanee Shibessuree Debia v. Mothooranath Acharj, 13 C. W. E. 18,
P. C. ; S. C. 13 M. I. A. 270 ; Moonshee Mahomed Akbar v. Kalee Churn Geeree,
26 C. W. E. 401.
I
LIMITATIONS OF PROPERTY. 199
tion (m) or alienation, except so far as this may be necessary to
prevent greater injury (n). The Bombay and Madras High
Courts (o) have laid down that the corpus of the property is
absolutely inalienable; but the Calcutta and Allahabad High
Courts (p) permit even the alienation of the corpus if for the
benefit of the benefaction. Such endowments are frequently
founded by subscriptions, and are augmented by gifts and
bequests simply to the institution (q). No rules have, in a
majority of these cases, been formally prescribed : the intention
of the founders has to be gathered from the traditional practice,
and the succession is thus determined by the custom of each
particular institution (r), though this may have become embraced
in some more extensive custom (s). And as to the management
of an endowment, it is not competent for the holders in one
generation to impose rules on those of another (t). The endow-
(m) Viram. Tr. 249. See below Book II., Introd. Impartible Property and
Eights, &c., arising on Partition; 1 Str. H. L. 210, 151; Anund Moyee
Choiodhrain v. Boykanthnath Roy, 8 C. W. E. 193.
(n) See Khusalchand v. Mahadevgiri, 12 Bom. H. C. E. 214; Manohar
Ganesh v. Keshavram Jehhai, Bom. H. C. P. J. F. 1878, p. 252; Narayan v.
Chintaman, I. L. E. 5 Bom. 393; Juggernath Roy Chowdhry v. Kishen Per-
shad, 7 C. W. E. 266; Droho Misser v. Srineehash Misser, 14 C. W. E. 409;
Nimaye Churn Puteetundee v. Jogendro Nath Banerjee, 21 C. W. E. 365;
Mohunt Burnt Suroop Dass. v. Kashee Jha, 20 C. W. E. 471; Prosunno
Kumari Debya v. Goolab Chand, 23 C. W. E. 253; S. C. L. E. 2 I. A. 145;
Doorganath Roy v. Ramchunder, L. E. 4 I. A. 52; Shri Gunesh v. Keshavram,
I. L. E. 15 Bom. 625.
(o) Nallayappa v. Amhalavana Pandara Sannadhi, I. L. E. 27 Mad. 466;
Shri Ganesh v. Keshavrav, I. L. E. 15 Bom. 625; Prosunno v. Golab, L. E. 2
I. A. 145.
(p) Bishen Chand v. Nadir, 1. L. E. 15 Cal. 329, P. C. ; Parsotam v. Datgir,
I. L. E. 25 All. 296.
(g) Sammantha Pandara v. Sellappa Chetti, I. L. E. 2 Mad. 175.
(t) Rajah Vurmah Valia v. Ravi Vurmah Mutha, L. E. 4 I. A. at p. 83.
Greedharee Doss v. Nundo Kissore Doss, 11 M. I. A. at p. 427 ; Janokoi v.
Gopal, L. E. 10 I. A. 37; Genda v. Chatar, L. E. 13 I. A. 100; Lahar Puri v.
Puran Nath, L. E. 42 I. A. 115. If by election, then it must be bond fide—
Ramlingam v. Vythilingam, L. E. 20 I. A. 150.
(s) Col. Dig., Book III., Chap. II. T. 5; Gossain Dowlut Geer v. Bissessur
Geer, 19 C. W. E. 215; 1 Str. H. L. 151; Malhar Sakharam v. Udegir Guru
Champatgir, Bom. H. C. P. J. F. 1881, p. 108, and the cases therein cited.
(t) Nor can the court prescribe such rules ; Burwaree Chand Thakoor v.
Mudden Mohun Chuttoraj, 21 C. W. E. 41. As to attempted restraint on choice
of a successor, see Greedharee Doss v. Nundokissore Doss, 11 M. I. A. 405, 421.
200 HINDU LAW. [BOOK I.
merit once made camiot be resumed, but performance of the
duties may be enforced (v).
Though a religious endowment is not necessarily confined to a
single family (w), this is a very common kind of estate (x), and
may be attended with the usual incidents subject only to pro-
viding for the performance of the religious functions (y). In the
case of other public or semi-public offices the exclusive right of a
single family and a several enjoyment of shares {z) is usually
accompanied by a rule of non-alienability beyond the limits of
the family, as in the case of vatans (a), and frequently of imparti-
bility, the burden of proving which, however, rests on those who
assert it (b).
It has been thought that trusts were unknown to the Hindu
law (c). Such a notion is quite erroneous (d), 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 endow-
ments just spoken of, especially when founded by the members
of a particular caste, are very frequently held by trustees (e),
either the mohants bound to a particular appropriation of the
revenues (/) or the general punchayat of the caste in the town or
village or a body chosen ad hoc {g). 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
(v) See Jug gut Mohinee Doss v. Musst. Sokhee Money Dossee, 14 M. I. A.
at p. 302; Nam Narain Singh v. Ramoon Paurey, 23 C. W. E. 76.
(w) See Sammantha Pandara v. Sellappa Chetti, I. L. E. 2 Mad. 175.
(x) 2 Str. H. L. 368; Vithal Krishna Joshi v. Anant Ramchandra, 11 Bom.
H. C. E. 6; Divaker Vithal v. Harhhat, Bom. H. C. E. P. J. F. 1881, p. 106;
Mancharam Bhagvanhhat v. Pranshankar, Bom. H. C. P. J. F. 1882, p. 120;
S. C. I. L. E. 6 Bom. 298, and 7 Bom. 217.
iy) Col. Dig., Book II., Chap. III., T. 43 Comm. ; Ganesh Moreshwar v.
Prahhakara Sakharam, Bom. H. C. P. J. F. 1882, p. 181.
(z) 1 Str. H. L. 210, 2 ; ihid. 363, per Colebrooke.
(a) See Index suh voce, and Bom. Act III. of 1874.
(b) Timungavda v. Rangangavda, Bom. H. C. P. J. F. 1878, p. 240.
(c) See the Tagore Case, L. E. S. I. A. 47.
(d) Mussumut Thukrain Sookraj Koowar v. The Government, 14 M. I. A. at
p. 127 ; Thakurain Ramanund Koer v. Thakurain Raghunath Koer, L. E. 9
I. A. at p. 50.
(e) Radha Jeehun Moostuffy v. Taramonee Dossee, 12 M. I. A. 380; Ram
Doss V. Mohesur Deh Missree, 7 C. W. E. 446.
(/) Goluck Chunder Bose v. Rughoonath Sree Chunder Roy, 17 C. W. E. 444.
(g) Radha Jeehun Moostuffy v. Taramonee Dossee, 12 M. I. A. 380, 394;
Jug gut Mohinee Dossee v. Msst. Sokheemoney Dossee, 14 M. I. A. 289.
LIMITATIONS OF PROPERTY. 201
assent of the whole family (h), or of all concerned when the idol
is open to public worship (i).
Other trusts of a quasi-religious character — ^as, for instance, a
devise in favour of " dharam " (k) — are such that effect can
hardly be given to them (l) 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 quite
distinct from her purely dependent joint ownership, so called, in
her husband's property (m). Trusts for the benefit of widowed
daughters and other helpless persons are not very uncommon (n).
The remedy in case of failure is a revocation of the gift or a
defeasance of the estate given to the trustee (o) ; but, the purpose
(h) Konwur Doorganath Roy v. Ramchunder Sen, L. R. 4 I. A. at p. 58.
See above, pp. 185, 198.
(») Manohar Ganesh v. Keshavram Jehhai, Bom. H. C. P. J. F. 1878, p. 252.
(fc) Runchordas v. Parvatihai, L. R. 27 I. A. 71, contra Partha v. Thiru,
I. L. R. 30 Mad. 340.
(I) Maniklal Atmaram v. Manchersi Dinsha Coachman, I. L. R. 1 Bom. 269.
In Promotho Dossee v. Radhika Prasad Datt, 14 Ben, L. R. 175, a dedication
by will was set aside as being in reality a settlement in perpetuity on the
testator's descendants, and a new dedication was made with the assent of the
parties.
(m) It is substantially the " dotal " estate of the French and other
European Continental systems. See Col. Dig., Book 11., Chap. IV. T. 28
Comm., T. 29 Comm., T. 30 Comm.
(n) See 2 Str. H. L. 234. A settlement may be found in the case of Suhedar
Husseinshakhan Sayedshakhan, Bom. H. C. P. J. F. 1882, p. 247, which,
though m that case made by a Mohammedan, follows in form and substance a
pattern common amongst Hindus. The settlor, being old, gives to his son his
whole property, with a charge to maintain and shelter his stepmother, sister
and other dependants. Provision is not made, probably through oversight, for
the settlor's 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.
(o) Col. Dig., Book II., Chap. IV. T. 53 Comm, T. 56 Comm. Similarly
under the Roman law the modus — that is, 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 performance 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 Singh Babadoor v. The Government of Bengal, 6 M. I. A.
101; Forbes v. Meer Mahomed Tuquee, 13 M. I. A. at p. 463; Rajah Lelanund
Singh Bahadoor v. Thakoor Munoorunjun Singh, L. R. S. I. A. 181; Keval
Kuber v. 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
202 HINDU LAW. [BOOK I.
being recognised as beneficial, effect may be given to it according
to the law of reason (p), and now it is recognised that the Courts
should rather enforce a performance of the trustee's duty than
allow the founder or his representative to annul 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 summary
power conferred on them by the Indian Trustees' Act 27 of 1866 ;
the substantive law forming the basis of the rights being the
Hindu 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 (g). The same
principles are applied as those of good conscience to the deter-
mination of cases arising in the Mofussil ; of this there are many
instances (r). Thus should a transaction be pronounced void or
revocable by the Hindu law (s), and accordingly be rescinded by
the Court, the determination of the legal relation would probably
be governed, in 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 bet had to the
English precedents, because the Hindu jurists have not furnished
any.
Regard may properly be had to Hindu usages and practices in
determining whether in any disputed case a trust has been
effectively created or not (t). Effect will be given to it so far as
it subserves a practicable (v) and legal purpose (w), but an estate
or mode of devolution or enjoyment not allowed by the Hindu law
cannot be compassed by means of a trust (x). The case in the
persons. This should be borne in mind in reading Forbes v. Meer Mahomed
Tuquee, supra.
(p) See 1 Str. H. L. 151; Mohesh Chunder Chuckerbatty v. Koylash
Chunder, 11 C. W. E. 449 C. K. ; Gopeenath Chowdry v. Gooroo Dass Surma,
18 C. W. R. 472 C. R. ; Nam Narain Singh v. Ramoon Paurey, 23 C. W. R. 76.
iq) In re Kahandas Narrandas, I. L. R. 5 Bom. 154.
(r) See Juggutmohinee Dossee v. Sookhemony Dossee, 17 C. W. R. 41; per
Sir M. Westropp, C.J., in Waman Ramchandra v. Dhondiba Krishnaji,
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. Girdhar Roy,
4 Beng. L. R. 8 A. C.
(s) See Col. Dig., Book II., Chap. IV. T. 58, Comm.
(t) Merbai v. Perozbai, I. L. R. 5 Bom. 268.
(v) Maniklal Atmaram v. Manchershi Dinsha, I. L. R. 1 Bom. 269.
(w) Anath Nath Day v. A. B. Mackintosh, 8 Beng. L. R. 60; Rajender Dutt
V. Sham Chund Mitter, I. L. R. 6 Cal. at p. 117.
(x) Tagore Case, L. R. S. I. A. at p. 72.
LIMITATIONS OF PROPERTY. 20S
Digest of Vyavasthas, Chap. II., sec. 7, Q. 17, 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 bom, 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.
Members of a joint family governed by the Mitakshara are joint
tenants, while those who are subject to the Bengal or Gauriya
school are tenants in common. A member of a coparcenary
cannot even mortgage his undivided share without the consent of
other coparceners under the Mitakshara in Bengal, Behar, and
N.W. Provinces (y); but both in Bombay and Madras (z) he is
allowed to alienate or mortgage his own undivided share, though
he cannot dispose of it either by way of gift or by will (a).
According to all the schools of the Hindu law a coparcener's
undivided share, if attached during his lifetime, may be sold even
after his death in execution of the decree (b).
Though the Hindu coparcener cannot in general dispose of the
family estate, and the family lands are especially sacred (c), so
that the father desiring to dispose of land must obtain the assent
of all his sons (d), yet religious gifts within moderate limits may
be made by a father (e), and his sons are bound to give effect
even to his promise (/). Property thus promised is, indeed, said
to be inalienable (g) ; but it must not exceed a certain reasonable
proportion of the whole (h). If this proportion be exceeded the
(y) Balgohind v. Narain, I, L. E. 15 All. 339; Sadahurt v. Foolbash,.
12 W. K. 1, F. B. ; Madho v. Mehrhan, I. L. E. 18 Cal. 157, P. C.
(z) Gurlingapa v. Nandapa, I. L. E. 21 Bom. 797 ; Sitaram v. Harihai^
I. L. E. 35 Bom. 109; Veraswami v. Ayyaswami, 1 Mad. H. C. E. 471.
(a) Lakshman v. Ram, L. E. 7 I. A. 181; Virayya v. Thata, I. L. E. 9Mad.
273.
(b) Madho v. Mehrhan, I. L. E. 18 Cal. 157, P. C. ; S. C. L. E. 17 I. A. 194;
Balkishen v. Rat Sita, I. L. E. 7 All. 731 ; Bailur v. Lakshman, I. L. E. 4
Mad. 302.
(c) Yajn. quoted Col. Dig., Book II., Chap. IV. T. 13, 14.
(d) See above, pp. 167, 168, and below, Book II. Introduction.
(e) Col. Dig., Book II., Chap. IV. T. 2. See Jaggat Mohinee's Case^
14 M. I. A. at pp. 301, 302; see also supra, pp. 191, 192.
(/) Col. Dig., Book II., Chap. IV. T. 3.
(g) Ibid. T. 4.
ih) Ibid. T. 11, 12.
204 HINDU LAW. [BOOK I.
father is presumed to be deranged (z), though the presumption
can be displaced (k). 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 (I) by
the head of the family qualifies his general incapacity to dispose
of the immovable estate, but Hindu ideas on this subject have
been so much supplanted in the Courts by those derived 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 (m). As a disposal of property even
acquired by himself by a father which leaves his family unpro-
vided for is by the Hindu law regarded as highly immoral, and
is absolutely prohibited (n), it may be that the debts, the satis-
faction of which out of the estate would almost exhaust it, may
be treated as on that account not binding on the sons, should
such a case be made for them (o). 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
though the father alone has " Svatantrata" : in ancestral property
A gift to a wife by her husband is 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
(t) Ihid. T. 16, Comm.
(k) As to religious gifts by a woman, see on Stridhana below.
(1) Eeligious and charitable purposes are coupled in the Hindu authorities,
and the example given is " a reservoir of water or the like constructed for the
public good." Viram. Tr. p. 250. Under this definition rest-houses for
travellers, groves of trees, roads, conduits, and schools, as well as the distribu-
tion of alms, have in various cases been held to come. And the Courts have
exercised a libe~~l discretion, as in the Dakore temple case, in moulding the
application of founders' bounty to meet changed circumstances.
(m) See Girdharee Loll v. Kantoo Lall, L. E. 1 I. A. 321, 334; Muttayan
Chettiar's Case, L. R. 9 I. A. at pp. 143, 144; Ponappa Pillai v. Pappu-
vayangar, I. L. R. 4 Mad. 1; Veliyammal v. Katha, I. L. R. 5 Mad. 61;
above, p. 167; Mahahir v. Moheswar Nath, L. R. 17 I. A. 11; Uman Hathi
Singh v. Goman, I. L. R. 20 Bom. 385; Abdul Aziz v. Appayasami, I. L. R.
27 Mad. 131, P. C.
(n) See Manu. in Col. Dig., Book II., Chap. IV. T. 11; Yajn. ibid. T. 16;
Brihasp. T. 18.
(o) See the section on Maintenance, and note (x) on next page.
LIMITATIONS OF PROPERTY. 205
father's administrative authority so long as it is not exercised to
the obvious detriment of the family. But his discretion must
not be exercised in a grossly partial manner: his bounty to his
wife must not exceed a reasonable proportion to the joint estate
(p). A promise of a provision is to be regarded by the eons as
binding on them (q), but a departure from reason and equity is
not to be upheld. So in a case where a member of a united
family dwelt apart and acquired property the Sastri said (r) he
could not be allowed to convert it into Stridhana by making
presents of costly ornaments to his wife in fraud of his co-sharers,
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 (s).
A gift to a daughter is warranted by the same authorities as
sanction one to a wife (t), but the gift is for obvious reasons
subject to a somewhat narrower limitation in the inierest of the
donor's family of which his daughter cannot in general remain a
member (v). A gift to a favourite son is to be respected, though
made out of the common property (w), 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 (x), and as to the
ancestral estate, though according to the decisions he may go far
towards dissipating it he cannot dispose of it unequally amongst
his sons (y).
(p) See Vyav. May., Chap. IV., sec. X., paras. 6, 6; and comp. Mit.,.
Chap. I., sec. I., para. 25.
(g) Ihid., para. 4; Viram. Tr. p. 228.
(r) Q. 315 MS. Ahmednugger, 13th June, 1853.
(s) See Koonjbehari Dhur v. Premchand Dutt, I. L. E. 5 Cal. 684; Braja r.
Kundana, L. E. 26 I. A. 66.
(t) See Col. Dig., Book V. T. 354; Daya Bhaga, Chap. IV., sec. 3, paras. 12,.
16, 29; Bachoo v. Mankorehai, I. L. E. 31 Bom. 373, P. C.
{v) A gift in trust for a daughter out of ancestral property was annulled at
the suit of the son. Ganga Besheshar v. Pirthee Pal. I. L. E. 2 All. 635.
(w) See note (t). As to an illegitimate, Book I., Chap. VI., sec. 2, Q. 2.
{x) Col. Dig., Book II., Chap. IV. T. 11, 12, 14, 16, 18, 19; Book V. T. 26,
27, 33; Viram. Tr. p. 251; Bahoo Beer Pertah Singh v. Maharaja Rajender
Pertah Sahee, 12 M. I. A. 1.
iy) Durga Persad v. Keshopersad, I. L. E. 8 Cal. 656, 663. See Lahshman
Dada Naik v. Ramchandra Dada Naik, I. L. E. 1 Bom. 561 ; S. C. L. E. 7
I. A. 181, and infra, Book II., Chap. I., § 2, Q. 5, and Introd.
"206 HINDU LAW [BOOK I.
The independent power of dealing with his self-acquired pro-
perty assigned to the father by Mit., Chap. I., sec. 5, 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
m.anager, without contradicting the special rules governing a
partition actually made by the father, prescribed in Chap. I.,
sec. 2 (z). Narada, Part 1, Chap. III., paras. 36, 40, would
apparently be explained or limited in the same way as Brihaspati ;
and the Smriti Chandrika, Chap. VIII., paras. 21 ^, dwells on
the difference between " Svamya " and " Svatantrata " — that is,
between ''ownership" and "independence." In the father's
acquisitions, Devanda Bhatta says, the sons have " Svamya,"
though the father alone has " Svatantrata " : in ancestral property
the sons have both. Katyayana says that the son has not
"Svamya" in the father's acquisition, but this is explained
(para. 22) as a mere looseness of expression ; and that it was not
considered by its author to justify an irregular distribution may
be seen from the Viramitrodaya, p. 55 compared with p. 74. In
Sital et al. v. Madho (a), it was held that a father might bestow
a house acquired by himself on one son to the exclusion of the
other. The learned judges were of opinion that the Mit. Chap. I.
sec. 1, pi. 27 (b), conveys only a moral prohibition against the
alienation of self -acquired immovable property. That passage,
however, with which the exposition in the Vivada Chintamani,
page 309, may be compared, declares the participation of sons,
not only in the ancestral but also in the paternal estate, and
paras. 28-30 (c), show clearly, as it seems, that the father's
power is there intended to be legally restricted, except in the
(z) So also the Vyav. May., Chap. IV., sec. 1, para. 14; sec. 4, pi. 4-8
(Stokes, H. L. B. 48, 49); Viram. 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 adminis-
tration in the father during his life is contested by Jimutavahana and
Eaghunandana, who argue that the ownership of the son arises only at the
father's death. Mitramisra refutes this contention (Viram. 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 such words as swamitwa have
caused as much controversy amongst Indian lawyers as those of dominium in
Europe.
(a) 1. L. E. 1 All. 394.
(6) Stokes's H. L. B. 375.
(c) Stokes's H. L. B. 376.
LIMITATIONS OF PROPERTY. 207
particular cases specially provided for (d). But for this, indeed,
para. 33 (e) would be almost unmeaning ; and the next paragraph
(/) which Vijnanesvara 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, pi. 7) to the father to reserve two shares
of such property for himself in making partition suo motu. Sec. 5,
pi. 10 (g) restates the son's right in the father's as well as the
ancestral property ; and the object of the discussion at that place
being to restrict the scope of the texts affirming the son's depend-
ance, not to extend the father's power, it would not be reasonable
to extract from it a contradiction to the principles in section I.,
which it is plain, from para. 33 of that section, that the author
did not intend (h). His view was apparently that which Devanda
Bhatta adopted — 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 sonship (i). At the same time, Narada excludes a parent's
gift from partition. Mit., Chap. I., sec. 1, p. 19 (/c), and Yajn.
(II. 124), says " Whatever property may be given by the parents
to any child shall belong to that child." So also Vyasa, in Col.
Dig., Book V. T. 354, This is allowed by Vijnanesvara to qualify
the rights of other children (Mit., Chap. I., sec. 6, pi. 13) (?),and
would possibly, notwithstanding Chap. I., sec. 2, pi. 13, 14 (m)
cover the cases of Sital v. Madho and Baldeo Das v. Sham Lai
(n). These assign to the father a power of disposition even over
the ancestral property, qualified only by the son's right to call
for partition, which does not seem reconcileable with Mit.,
(d) In the Panjab it appears that an owner cannot in some districts give
away his immovable property, whether ancestral or self- acquired, without the
consent of his sons or male gotraja-sapindas. See Panj. Cust. L., Vol. II.,
pp. 164-166.
(e) Ihid. 377.
if) Sec. 2, para. 1, ihid. 377.
(fif) Ibid. p. 393.
(h) See the Smriti Chandrika, Chap. II., sec. 1, para. 22; Dayakrama
Sangraha, Chap. VI., paras. 11, 14 (Stokes's H. L. B. 510, 511).
(t) See Colebrooke at 2 Str. H. L. 436.
(fc) Stokes's H. L. B. 373.
(l) Stokes's H. L. B. 396; comp. supra, p. 192.
(m) Stokes's H. L. B. 380.
in) I. L. E. 1 All. 394 and 77.
208 HINDU LAW. [BOOK I.
Chap. I., sec. 1, pi. 29 (o) or with sec. 5, pi. 9 {ihid. 393) (p).
The passage quoted from Col. Dig., Book V. T. 433, Comm. :
" They (the sons) have not independent dominion, although they
have a proprietary right, " is a statement of the supposed doctrine
of Vachaspati Misra as to self -acquired property, in an argument
which construes the text, Yajn. II. 121, Col. Dig., Book V. T. 92,
in a sense different from that insisted on in the Mit., Chap. I.,
sec. 5 (q).
Prof. H. H. Wilson observes on this subject, in Vol. V. of
his Works, at p. 74: " We cannot admit either, that the owner
has more than a contingent right to make a very unequal distri-
bution of any description of his property without satisfactory
cause. The onus of disproving such cause, it is true, rests with
the plaintiff, 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 circum-
stances 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 Hindu law."
As to the attempted validation of such a distribution on the
principle of factum valet, he says, ihid., p. 71 : "It is therefore
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 posi-
tion laid down by Jimutavahana : * 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 (r). This
remark refers, however, to the alienation of property, of which
the alienor is undoubted proprietor, as a father, of immovable
property if self-acquired, or a coparcener of his own share before
(o) Stokes's H. L. B. 376.
(p) See 1 Str. H. L. 122; 1 Macn. H. L. 14.
(q) Stokes's H. L. B. 391. See Col. Dig., Book II. T. 16, Comm.; Vivada
Chin., pp. 225, 72, 76, 79, 250, 309; B. Beer Pertah Sahee v. M. Rajender
Pertah Sahee, 12 M. I. A. 1; Bhujangrav v. Malojirav, 5 Bom. H. C. E. 161,
A. C. J. ; Lakshman Dada Naik v. Ramchandra Dada Natk, I. L. E. 1 Bom.
561; 2 Macn. H. L. 210; Mahasookh v. Budree, 1 N. W. P. E. 57. As to care
for a son unborn, see 6 M. I. A., at p. 320.
(r) Stokes's H. L. B. 207.
A
THE TESTAMENTARY POWER. 209
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 grand-
father's estate, an unequal distribution made by the father is
lawful only in the instance of his own acquired wealth.' Nothing
can be more clear than Jimutavahana's assertion of this doctrine,
and the doubts cast upon it by its expounders, Eaghunandana, Sri
Krishna Tarkalankara, and Jagannatha are wholly gratuitous. In
fact, the latter is chiefly to blame for the distinction between
illegal and invalid acts."
IX.— THE TESTAMENTAEY POWEE.
" In Hindu law," as Sir H. S. Maine says (s), " there is no
such thing as a true will. The place filled by wills is occupied
by adoption." The learned author shows that a will, when
invented by the Eomans, ' ' 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" (t). The
subordinate position to which amongst the Eomans the religious
as compared with the civil law was reduced, distinguishes it
from the Hindu system. In the latter, too, the patria potestas
has never, perhaps, been allowed to go the extravagant lengths
which were long tolerated by the Eomans (v). A man's wife and
his child are his " own," but in a sense, as Jagannatha explains,
(s) Anc. L., Chap. VI., p. 193 (3rd edition). See Col. Dig., Book V.,
Chap. I., Art. I., Note. See above, p. 182, and the remark of H. H. Wilson,
p. 208.
(t) Op cit. 194. In England the estate seems in early times to have been
completely represented by the heir. The system of tenures made a universal
succession impossible when different feuds were held from different lords, but
the executors still take a qualified " universitas " in the personal estate.
(o) See Narada, Part I., Chap. III., 36 ss. Ownership of property was at
least very early distinguished by the Hindus from the relation of a father to a
son. See Vyav. May., Chap. IV., sec. I., paras. 11, 12; Chap. IX., para. 2.
The destruction or exposure of infants, especially of females, was disapproved
perhaps, but tolerated without severe censure in both Greece and Eome. The
sacredness of the human being as such is a Christian doctrine ; but mere
humanity has in this respect given to the Hindu ethical system a great advan-
tage over classical paganism or the defective civilisation of China. See Terence,
Heaut, IV., I. 22; Schoeman, Ant. Gr., p. 601, 104; Manu. IX. 8, 45; Col.
Dig., Book I., Chap. V. T. 188, 219.
H.L. 14
210 HINDU LAW. [BOOK 1.
quite different from that in which property is his own (w). The
equal right of sons in the patrimony being recognised, and tho
right to subsistence of all at any rate who are under the potestas
or lordship of the head of a family (x), 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 (y).
The first intention of wills at Rome was probably to provide
successors when natural heirs failed, then to provide for members
of the family excluded by the rigorous provisions of the law of
inheritance from their due share in a testator's property; 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 obtain effect (z). At Athens
there seems to have been full power of alienation by a house-
holder inter vivos (a) ; but he could not by will disinherit his
heirs — not even his daughter as heiress — though he could practi-
cally 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 la death-bed gift of the patrimony without
assent of the heir (b), and regarded it as inseparably united to
the family. " Si bocland habeat quam ei parentes dederint, non
mittat eam extra cognitionem suam " (c). The earlier ideas still
prevail amongst the Hindus. They still regard with horror the
disinheritance of a son unless he has proved himself an enemy of
(w) Col. Dig., Book III., Chap. IV. T. 6, 7, Comm. ; Vyav. May. loc cit.
(x) Col. Dig., Book II., Chap. IV. T. 11, 12, 15, 18, 19, Comm. ; 26 Comm. ;
Yajn. II. 175 ; 2 Str. H. L. 16. For the case law, see Book. II. Introd.
(y) In Attica the older law seems, like the older Hindu law, to have allowed
mortgage, or rather a vivum vadium, but not sale, and in general " a remark-
able recognition was shown of the necessity of guarding against the sub-division
of property, of maintaining each family in possession of its ancestral estates."
See Schoeman, Ant. Greece, pp. 323, 104. Under the earlier English, as under
the Hindu law, an interest of the son even in purchased lands was recognised,
so that the father could not wholly disinherit him. SeeGlanv.,p. 142 (Beames's
TransL); Mit., Chap. I., sec. I., para. 27; 2 Str. H. L. 10, 12.
(z) Maynz, Cours de Droit Romain, III. 236 ss. Comp. Vyav. May.,
Chap. IX., paras. 6, 7; Col. Dig., Book II., Chap. IV. T. 15 Comm. Perhaps,
as under some of the Barbarian Codes, no mode could be devised for the aliena-
tion of the patrimony which did not take the guise of an heirship replacing the
real one.
(a) See Smith's Diet, of Ant. Tit. Heres. ^,
(h) Glanville, pp. 140, 141, 165. Blackstone approved the restrictionsi
2 Comm. 373.
(c) LI. Hen. I. Cap. 70.
THE TESTAMENTARY POWER. 211
his father, from whose celebration of the Sradhs no spiritual
benefit is likely to arise (d). 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 son there is an elaborate and far-reaching scheme of
succession provided by 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 (e), and a system of free testamentary
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 members of the most revered and
influential caste (/).
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 Eomans was wholly
(d) Col. Dig., Book V. T. 318, 320, Comm.
(e) See Narada, Part L, Chap. III., 22, 25; Vyav. May., Chap. V., sec. IV.,
para. 12-17; and Comp. Glanv., Chap. VIII.; Bract. 61 a.
(/) Col. Dig., Book II., Chap. IV. T. 35, 36, 41, 42, 64.
The English law as to superstitious uses is not in force amongst Hindus. See
The Advocate General v. Vishvanath Atmaram, 1 Bom. H. C. K. IX. App.,
where this subject is elaborately discussed. Several cases of the enforcement
of Hindu charitable trusts are referred to in the preceding article. Eeference
may be made to Fatmahihi v. Adv. Gen., I. L. E. 6 Bom. 42, 50, for the
principles governing this class of cases. The Hindu law, like the Mahomedan
law, instead of regarding religious grants with jealousy, treats them with
special favour (see above, pp. 91, 195) ; Col. Dig., Book II., Chap. IV. T. 35 ss. ;
though they are not to be used as a mere cloak for private perpetuities (above,
pp. 185, 192, 198) ; nor must they be made a means of reducing the family to want
(above, p. 194 ; Col. Dig., Book II., Chap. IV., T. 10, 19, Comm.). The interest
of the State in religious endowments is asserted (Narada, Transl. p. 115), but
no limitation as to time has been imposed on grants by the Hindu law analogous
to the English statute 9 Geo. II., Cap. 36, or the Mahomedan law restricting
the " marz ul mawt."
212 HINDU LAW. [BOOK I.
severed from the family — was an utter stranger to his father
and his estate. In India the 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 (g).
The looser and less tyrannical constitution of the family which
the humaner spirit of the Hindus has framed as compared with
that of the fierce Koman 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, disap-
proves contrivances which would set aside its own sufficient rules ;
and while the nearest successors cannot be excluded from the
patrimony and its accretions (h), the imposition of conditions and
limitations creating rights in favour of persons who do not exist
to take them is opposed to Hindu conceptions (i). A gift to a class
operates in favour of those in existence at the time the gift is
intended to take effect (k). The now common direction that a
property given or devised shall not be divided or alienated cannot
be stronger than the ancient law to the same effect (l) ; and as the
one is overridden 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 (m), as under the English law the
absence of any interval between a preceding estate and a
remainder was requisite to make the latter good. The estate
(g) Narada, Part I., Chap. III., 11. See now supra, p. 76.
(h) The Mitakshara, Chap. I., sec. I., para. 27, disenables a father from
alienating even his own acquisitions of immovable 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. Reeh Ram, 3 M. H. C. K., at p. 65;
though this doctrine has not been accepted in Bombay. For the present law
see p. 205, and Book II. Introd. § 7 A, 1 a, with the cases there cited.
(t) See above, p. 180, and Ram Lai Mookerjee v. Secretary of State for
India, L. K. 8, 1. A. at p. 61 ; Bai Motivahu v. Bat Manubai, I. L. E. 21 Bom.-
709 P. C. ; Chundi Charun v. Rani Sidheswari, L. E. 15 I. A. 149 ; Manohaf\
Singh v. Het Singh, I. L. E. 32 All. 337.
(k) Bhaghati v. Kalicharan, I. L. E. 32 Cal. 992; Khimji v. Morariji
I. L. E. 22 Bom. 533; Rai Bishen Chand v. Asmaida Koer, L. E. 11 I. A. 164 ;j|
Ram hall Seth v. Kanai Lai, I. L. E. 12 Cal. 676.
(l) See Col. Dig., Book V., Chap. I., Art. I.
(m) Datt. Mim., sec. IV., para. 3.
THE TESTAMENTARY POWER. 213
under the Hindu law, like an English freehold at Common Law,
cannot be made to commence in futuro, but neither can it be
conferred 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 (n). Conditions suspending the com-
pletion of a gift on a contingency make it inoperative save as a
promise (o).
These considerations, as they show that an executory devise as
distinguished from a remainder could not properly be received
into the Hindu system (p), 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 (q); and the great accumulations of separate
property on which a will could safely be made to operate were
until recently almost unknown. In Rajindra v. Raj Coomari (r)
it has been laid down that a direction in a will as to accumulation
will be given effect to " if not unreasonable in its conditions as
to be void against public policy, nor given for purposes of carrying
out an illegal object, nor in its effect inconsistent with Hindu
law." Unless, too, the testator could mould the estate more
freely than by a mere remainder of the property acquired by him-
self, it would but insufficiently serve the 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 (s). Such a limited power not substantially exceed-
ing what he could do by gift, with or without a reserve in his
own favour, was hardly worth striving for.
The Eoman law allowed a paterfamilias to name the con-
tinuator of his own civil personality. The English law now allows
the creation of an estate without actual change of possession.
(n) Jagannatha strives to make out that there can be a present gift of
property not taking effect until after the donor's death. He employs two
arguments for this purpose; but he does not deal with the question, even as a
possible one, of whether a bounty can be conferred on a non-existent person.
See Col. Dig., Book II., Chap. IV. T. 43, 56, Comm.
(o) See above, p. 180.
(p) Norendra Nath Sircar v. Kamalbansi, L. K. 23 I. A. 18.
iq) Comp. Plato, Laws, XI., and Grote's Plato, III. 434.
(r) I. L. R. 34 Cal. 5, 11.
(s) See above, pp. 179, 181, 186.
214 HINDU LAW. [BOOK I.
Both are opposed to Hindu notions ; the religious law prescribes
who shall perform the sacrifices, who shall be heir or joint-heir :
it recognises 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
accepting without fraud (t). But in the case of a will there can
be no delivery to make the gift effectual (v). An entry by a
devisee is not the counterpart of a resignation by the preceding
holder in which his volition to give up his right is simultaneous
with his releasing of the physical detention to the donee. There
is hardly even a moral right, as the utterance of the volition has
been deferred until it could not amount to a promise or engage-
ment. 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, but there would not be any right in rem
enforceable against them (w). As a will, therefore, could neither
serve its earlier purpose under the Roman 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 Hindu law.
A donatio mortis causa is recognised, and on this Jimutavahana has
attempted to found heritage as an implied gift by the owner (x) ;
but, as Jagannatha observes, the comparison fails, inasmuch
as in heritage there is no surrender with a corresponding accept-
ance of the owner's property.
(t) Lalluhhai Surchand v. Bai Amrit, I. L. B. 2 Bom. 299. See Index,
Possession; Yajn. II., 27; and Mit. ad loc.
(v) Jagannatha argues for a sort of constitutum possessorium (see Savigny,
Possession § 27) as being sufficient to complete a gift. See Col. Dig., Book II.,
Chap. IV. T. 13, Comm. ; T. 56, Comm. But the right in 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 testa-
ment, though effectual in the case of a Mrityu Patra, as will be seen below.
See Col. Dig., Book V., Chap. I., Art. I. Text cited from Dhaumya, and
Commentary.
(w) Seisin being requisite to an effectual gift of land under the early English]
law, a testamentary disposition of it was invalid without the consent of the]
heir. Glanv., pp. 140, 141. It will be remembered that Tacitus observes on thel
absence of wills amongst the Germans. Family and tribal rights took instantj
effect on the death of the late owner.
(x) Col. Dig., Book V., Chap. I., sec. I., Art. ;
THE TESTAMENTARY POWER. 215
At present, as we have seen, a Hindu's power to dispose by will
of whatever property was absolutely his own, and, according to the
Bengal school, both his own as well as his ancestral property (y),
must be considered as finally established (z), provided he is not a
minor, when he can only give power to his widow to adopt (a). A
widow can devise her stridhan only ; but a coparcener, although he
can alienate his undivided share in the ancestral property both in
Bombay and Madras, cannot alienate it by will or by gift (h). It
is necessary to bear in mind that he cannot defeat by will the
rights which subsist independently of his wishes (c), and that he
cannot create interests or impose restrictions which the Hindu
law does not recognise. He can by will give properties to his
widow or to his sister absolutely (d), although a property given
to a female by way of maintenance confers only a limited estate (e).
He can give power by will to someone to appoint to his
property, which appointment may be general or special (/). A
Hindoo testator cannot defeat the right of a widow taking by
survivorship (g), nor can he get rid of those claims to sub-
sistence (h) as to which he is allowed a large discretion so long as
(y) Nagalutchmee v. Gopee, 6 M. I. A. 309 ; Bhooban Moyee v. Ram Kishore,
10 M. I. A. 308.
(z) See above, p. 181. This excludes a testamentary disposal of property
held by others in common with the testator. Vasudeo Bhat v. Venktesh
Sanhhav, 10 Bom. H. C. R. 139, 157; see also Vrandavandas v. Yamunahai,
12 Bom. H. C. R. 229, referring to Gangabai v. Ramanna, 3 Bom. H. C. E.
66 A. C. J.
(a) Bai Golab v. ThaJ^orelal, I. L. E. 36 Bom. 622; Hardwarilal v. Gomi,
I. L. E. 33 All. 625.
(b) Lakshman v. Ramchandra, L. E. 7 I. A. 18; Chamanlal v. Ganesh,
I. L. E. 28 Bom. 453; Gadadhar v. Chandra, I. L. E. 17 Bom. 690.
(c) See Lakshman Dada Naik v. Ramchandra Dada Naik, L. E. 7 I. A., at
p. 194; Vitla Butten v. Yamenamma, 8 M. H. C. E. 6 ; Hanmant v. Bhim-
chandra, I. L. E. 12 Bom. 105; Lai Bahadur v. Kanhyq, Lai, I. L. E. 29
All. 244.
(d) Surja v. Rabi, L. E. 35 I. A. 17 ; Basanta Kumari Debt v. Kanikshya
Kumari, L. E. 32 I. A. 181; Jojeswar v. Ramchand, L. E. 23 I. A. 37.
(e) Braja Kishore v. Kundana, L. E. 26 I. A. 66; Radha v. Ranimoni Dasi,
L. E. 35 I. A. 118.
if) Bai Motivahu v. Bai Mamoobai, L. E. 24 I. A. 93; Javerbai v. Kiblibai,
I L. E. 15 Bom. 492; Monoram v. Kalicharan, I. L. E. 31 Cal. 166.
(g) Musammat Goolab v. Musammat Phool, 1 Borr. 173; Uma Deyi v.
Gokoolanund, L. E. 5 I. A. 50; S. C. 15 Beng. L. E. 405.
ih) See Col. Dig., Book II., Chap. IV. T. 7 ; H. H. Wilson, Works, V. 68.
216 HINDU LAW. [BOOK I.
he satisfies them at all, but which may be turned into defined
charges when there is an attempt to evade them altogether (f).
Though wills are unknown to the Hindu law, mrityu patras
are common. These are of the nature of a conveyance to operate
after the death of the grantor (k), or immediately subject to a
trust in his favour for his life (l). Devises of land under the
Statute of Wills, 32 Hen. VIIL, c. 1, were formerly regarded as
of a similar character. The will was of the nature of " a convey-
ance passing the freehold according to the intent or declaring the
uses to which the land should be subject " (m). Similarly, under
the Roman law, " the mancipatory testament," as it may be
called, differed in its principles from a modern will. As it
amounted to a conveyance out and out of the testator's estate, it
was not revocable. There could be no new exercise of a power
which had been exhausted (n). Wills were allowed by the
XII. Tables, and the essential ceremonies were gradually modified
by the exercise of the praetorian equitable jurisdiction, as in
England the Court of Chancery showed " unbounded indulgence
to the ignorance, unskilfulness, and negligence of testators " (o).
It is probable that the mrityu patra of the Hindus would, under
the influence of equitable doctrines, have received a correspond-
ing development from the English Courts. Thus, though Jagan-
natha insists on a transfer of possession, or at least the sem-
(i) See pp. 75, 76, and the section on Maintenance; Narhadabai v. Mahadev
Narayan, I. L. E. 5 Bom. 99, and the references.
(fe) See Col. Dig., Book II., Chap. IV. T. 43, Comm. ; 2 Macn. H. L. 207.
(I) The one quoted in Ragho Govind Parajpe v. Balvant Amrit Gole, 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 quoted in Ramhhat v.
Lakshman Chintaman, I. L. E. 5 Bora. 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 afterwards sought to
get the deed set aside. He adopted a son pendente lite, 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.
(m) Spence, Equity Jurisp., Vol. I., p. 469; 6 Cr. Dig. 6.
(n) Maine, Anc. Law, Chap. VI., p. 205 (3rd edition). See Clark, Early
Eom. Law, p. 117 ss. ; Mommsen, Hist, of Eome, Chap. XL Engl. Transl.,
Vol. I., p. 164.
(o) Spence, op. cit.
THE TESTAMENTARY POWER. 217
blance of a transfer, to make the donation good, yet means would
no doubt have been found to give effect to the transfer without
an entry. That a devise should " import a consideration in
itself" would not be necessary according to Hindu notions (p),
but a change of possession is essential to a valid gift (q), and this
has to be dispensed with in giving effect to an ordinary will as
now construed. But he who takes possession may, conformably
to Hindu 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 life in being, as they could be created by ordinary
grant and acceptance, could be created by mrityu patra (r). In
the Presidency towns the ready-made system of England has in
a great measure superseded the indigenous instrument. Still even
there mrityu patras occur, at least in the city of Bombay, and in
the mofussil they are common. Many which come into the
courts are of an age that negatives the supposition of their being
a mere adoption or imitation of the English will (s). They are
construed with as little regard as may be to technical rules, but
the trust or use created by such an instrument is not now deemed
void or revocable on failure of the trustee to fulfil his duty (t) :
he is instead made to do the duty he has accepted (v). The
greater power and expertness of the courts under the British rule
make a complete satisfaction of justice possible in this way, or
(p) Still an undivided co-sharer cannot dispose of his share by gift or
bequest. See Lakshmishankar v. Vaijnath, I. Li. E. 6 Bom. 25 ; Rambhat v.
Lakshman, I. L. K. 5 Bom. 630. But that is on account of the inefficacy of
his single will in dealing with what is not his sole property. See Mitakshara,
Chap. I., sec. II., para. 30; Col. Dig., Book II., Chap. IV. T. 28, Comm.
(g) Yajn. II., 27; Narada, I. Chap. IV., paras. 4, 18; see Transl. pp. 23, 25,
and Corrigenda; Col. Dig., Book II., Chap. IV. T. 32, and Comm.
(r) Comp. Ram Loll Mookerjee v. Secretary of State for India, L. E. 8 I. A.
at p. 61.
is) As some have accounted for the testament used in Bengal. See Maine,
Anc. Law, p. 197 (3rd edition). Wills became common in Bengal really
because of the view held there that each parcener in a united family had a
distinct though undivided portion, and could dispose of it by gift and conse-
quently by will. See Colebrooke in 2 Str. H. L. 431; Dayakrama Sangraha,
Chap. XI.
it) This is not in any way inconsistent with the principles of the Hindu law.
See the distinction drawn by Jagannatha between the property held by a
husband in trust for his wife and the subordinate dependent property of the
wife in her husband's ordinary estate. Col. Dig., Book II., Chap. IV. T. 28,
Comm.; T. 30.
(v) Nam Narain Singh v. Ramoon Paurey, 23 C. W. E. 76.
218 HINDU LAW. [BOOK I.
at least a greater approximation to it than by the strictly Hindu
method of taking back the property when the promise or alleged
promise upon which it was given and taken has been falsified (w).
As to the form, a nuncupative will is effectual (x), and so is a
parol revocation (y) ; so is the birth of a posthumous child, where
the will is not of a self -acquired property (z). In Raja Chelikani's
Case (a) it has recently been held that actual destruction of a
will or its formal revocation is not essential tO' constitute revoca-
tion. His intention not to leave the will as it was would amount
to a revocation thereof. But as a will is a unilateral document
operating on the principle of a gift, it would seem that where the
statute law has not prescribed a mode of authentication the mode
followed in analogous cases ought to be followed. In Radhabai
v. Ganesh (b) it was ruled that the common direction given in
the Vyav. May., Chap. II., § 1, para. 5, does not apply to a
Hindu's will, as that is a document not recognised by the Hindu
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 (c). This
was formerly the case in Europe also {d). Custom, however, is
(w) Narada, II. IV. 10; Col. Dig., Book II., Chap. IV. T. 53 Comm.,
T. 56 Comm., T, 65 Comm.; Vivada Chintamani, pp. 83, 84; Vyav. May.,
Chap. IX. 6.
(x) Bhagvan Dullahh v. Kala Shankar, I. L. K. 1 Bom. 641; Mancharji
Pestonji v. Narayan Lakshumanji, 1 Bom. H. C. E. 77 (2nd edition), and the
cases there referred to.
(y) Maharaj Partab Narain Singh v. Maharanee Soohha Kooer et al., L. R. 4
I. A. 228. For the statute law see below.
According to the English Common Law lands devisable by custom might by
custom be devised orally, Co. Lit. Ill A., and this continued until, by the
Statute of Frauds (29 Car. II., c. 3), writing attesting was made necessary.
For personal property a nuncupative will sufficed till long afterwards. TheJ
law now regulating English wills is 7 Wm. 4 and 1 Vict. c. 26.
(z) Subha V. Doraisami, I. L. R. 30 Mad. 369.
(a) L. R. 29 I. A. 156.
(b) I. L. R. 3 Bom. 7.
(c) Col. Dig., Book II., Chap. IV. T. 33, Comm. See Mit. in Macn. H. L.
269 ss.
(d) See Laboulaye, Hist, du Dr. de Prop., p. 381; Bracton, 38, 396; Co.
Lit. 6 A. In Canciani's "Leges Barbarorum," Vol. II., p. 475, are twol
Lombard formulas, one showing that land could not be sold except under j
THE TESTAMENTARY POWER. 219
recognised as governing the mode of proof (e), and by mutual
assent of the parties a document may be proved by a single
attesting witness (/).
In the Presidency of Bengal and in the cities of Madras and
Bombay, Act XXI. of 1870, by making sec. 102 of the Succession
Act, X. of 1865, applicable to the wills of Hindus, 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 exist-
ence 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 Hindu
law allows, as by that some one in existence at the testator's own
death must be the ultimate legatee (g). Section 102 of the
Succession Act makes inoperative a bequest to a class which may
be not finally completed within the prescribed time, and sec. 103
annuls a bequest made to take effect after or on failure of a prior
bequest which the Act declares void (h). These are not rules of
the Hindu 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
absolute necessity, and the other that a conveyance was established by reading
it out in Court and calling on the bystanders to witness the transaction.
(e) See Col. Dig., Book I., Chap. I. T. XIII. ss. ; Book II., Chap. IV.
T. 33, Comm. ; and the Sastri's response in Doe v. Ganpat, Perry's Or. Ca. at
p. 137.
(/) Vyav. May., Chap. II., § III., para. 3.
The Eoman testamentum Coniitiis 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 recognised, it may be
expected that the forms attending them will ere long become uniform, as the
statutes intend. See the case cited note (h), infra.
ig) See the Tagore Case, L. E. S. I. A. 47; S. C. 9 Beng. L. E. 377; Sir
Mangaldas Nathuhhoy v. Krishnabai, I. L. E. 6 Bom. 38.
(h) Comp. the observations of Pontifex, J., in Cally Nath Naugh Chowdhry
V. Chunder Nath Naugh Chowdhry, I. L. E. 8 Cal. at pp. 388 ss., and in
Soudaminey Dossee v. Jogesh Chunder Dutt, I. L. E. 2 Cal. 262, with Alan-
gamonjori Dahee v. Sonamoni Dahee, I. L. E. 8 Cal. 167.
220 HINDU LAW. [BOOK I.
carefully borne in mind by the student. It has been held (i) that
the effect of Act XXI, of 1870 is to make the rule of construction
laid down in the Tag ore 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 authorise 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 vest in the executor or administrator . . . any property
which such (deceased) person could not have alienated inter
vivos." " And that nothing herein contained shall authorise any
Hindu ... to create in property any interest which he could
not have created before the 1st September, 1870 " (k). By
sec. 4 of Act V. of 1881, however, " all the property " of a
person deceased vests in his executor 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 " (I).
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 disposing of
property outside those cities, may be truly such within the defini-
tion given in the Act, at the same time that none of the pro-
visions of Act X. of 1865 apply to it which under Act XXI. of
1870 apply to wills made in those cities or disposing of immov-
able property within them. It will hence be necessary in the
mofussil to consider what under the Hindu law amounts to " a
legal declaration of the intentions of the t-estator with respect to
his property," without regard to the provisions of Act X. of 1865,
and apparently to recognise all his property as vesting in the
(i) AlangamonjoTi Dabee v, Sonamoni Dahee, I. L. K. 8 Cal. 157, 637.
(fe) These provisions govern sees. 98, 99, 101 of the Succession Act. See the
cases note (h), supra.
(I) 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 Hindu law, and when it is in
proof that all the parties are Hindus." Doe dem Goculkissore Seat v. Ram-
kissno Hazarah, 1 Mor. Dig., p. 246; and see ibid. 245; 1 Taylor and Bell, 10.
THE TESTAMENTARY POWER. 221
executor (m) except such as goes to his co-members of a united
family or others taking by survivorship.
Within the Presidency towns, or under a will (n) made within
them, it would seem that the creation of a perpetuity for any
purpose whatever is prevented by sec. 101 of Act X. of 1865,
while a Hindu or a Mohammedan may create for religious or
charitable purposes a perpetuity subject only to the conditions
already noticed (o). The statute law on the points just discussed
is, however, complicated and contradictory in principle. Under
these circumstances it is perhaps fortunate that, as lately
ruled (p), the law does not oblige a person claiming under a will
in the mofussil to obtain probate or to establish 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 (q). In Tara Chund
v. Reeb Ram (r), 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
from his father is, as he himself treats it, ancestral property. It
seems to us that there is no reason whatever in the contention
that its quality was changed by his choosing to accept it ap-
parently under the terms of his father's will. Still less ground
would there be for the contention that his acquiescence in that
mode of receiving it would vest in himself a larger estate than he
(m) That is, where there is one; and where there is not, in him who obtains
administration. Act V. of 1881, sees. 4, 14.
(n) Sookhmoy Chunder Dass v. Monohurri Dasi, L. E. 12 I. A. 103.
(o) Tagore Case, L. R. S. I. A. at p. 71; Kumara Aseme v. Kumara
Krishna, 2 Ben. L. R. (0. C. J.), 47; Fatma Bihi v. Adv.-Gen. of Bombay,
I. L. R. 6 Bom. 42 ; Limji v. Bapuji, I. L. R. 11 Bom. 441 ; Krishnaramani v.
Ananda, 4 Ben. L. R. (0. C. J.) 321 ; Broojosoondery v. Luchmee, 15 Ben.
L. R. 176 P. C, note.
(p) Bhagvansang Bharaji v. Bechardas Harjivandas, I. L. R. 6 Bom. 73.
If he sues as executor or administrator he must of course set forth his qualifica-
tion. See Civ. Pro. Cod., sec. 50. As a legatee where probate is possible he
will apparently be bound by the condition in sec. 187 of the Succession Act, as
probate and administration 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.
iq) Above, pp. 193, 194.
(r) 3 Mad. H. C. R. 60.
222 HINDU LAW. [book I.
would have taken by descent. On what principle can he be con-
ceived capable, by any act of his, of depriving his children of a
right given to them by the* doctrines of the Mitakshara at the
very moment of their birth? The argument, therefore, that this
property is unsusceptible of partition, because self-acquired,
seems to us to fail entirely."
The property, however, if the Hindu 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 Hindu law, by a gift recognised 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 -acquired, and it would seem that although the father
(defendant) 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 will to a risk of being set aside as inofficious according
to the recognised principles of Hindu law (s). In the case of
Vinayak Wasoodev v. Parmanundas (t), Sir C. Sargent, J., held
that where two brothers took equal shares in property under their
father's will, they constituting with their father an undivided
family, there would be great diflficulty in holding that they took
as heirs an estate different from what in the ordinary course
would have descended 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 therefore deal with it at
pleasure, and his bequest of a lakh of rupees in charity was
upheld. This judgment was affirmed in appeal, and an appeal to
Her Majesty in Council has been dismissed.
(s) See Mit., Chap. I., sec. II., para. 14.
(t) L. E. 9 I. A. 86.
THE TESTAMENTARY POWER. 223
The extent to which a control of the devolution and of the
enjoyment of property bequeathed by will is permitted has been
already discussed (b). The construction of testamentary instru-
ments executed by Hindus is governed by the Hindu law, and on
this point the Judicial Committee have said : ' ' The Hindu 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 circum-
stances (c), and where this is the case those circumstances) no
doubt must 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 particular dispo-
sition a particular effect, it must be assumed that the testator,
in the dispositions which he has made, had regard to that
meaning or to that effect, unless the language of the will or the
surrounding circumstances displace that assumption " (d).
Similar principles are laid down in the Tagore Case (e), in
which it is further said (/) ' ' The true mode of construing a will is
(h) See above, pp. 179, 181.
(c) See Barlow v. Orde, 13 M. I. A. 277 ; Moulvie Mahomed v. Shavukram,
L. E. 2 I. A. 7 ; and comp. Maniklal v. Maniksha, I. L. E. 1 Bom. 269 ;
Cheda Lai v. Gobind Ram, I. L. E. 30 All. 455; Murari Lai v. Kundun Lai,
I. L. E. 31 All. 339; Mangaldas v. Narsirdas, I. L. E. 15 Bom. 652; Motilal
V. Adv. General of Bombay, I. L. E. 35 Bom. 279; Mudaliar v. Ganga Bissen,
I. L. E. 28 Mad. 386; Lalit Mohun v. Chukkan Lai, L. E. 24 I. A. 76; Radha
Persad Mallik v. Dasi, L. E. 35 I. A. 118; Subbarayar v. Subbarumal, L .E.
27 I. A. 162.
(d) Sreemutty Soorieemoney Dossee v. Denobundoo Mullick, 6 M. I. A.
660-551. A will expressed in English must be construed according to the
intention as gathered from the English words, not according to the possible
sense of the Vernacular words that may have been used in the instructions.
See Gangbai v. Thavar Mulla, 1 Bom. H. C. E., at p. 75. English expressions
are, it would seem, to be construed according to the English law. See Martin
V. Lee, 14 M. P. C. 142. But regard must be had in the case of immovable
property to the rule that the language is to be applied according to the law of
its place.
(e) Tagore Case, L. E. S. I. A., at pp. 64, 65, ss.
(/) /btd.,p. 79.
224 HINDU LAW. [BOOK I.
to consider it as expressing in all its parts, whether consistent
with law or not, the intention of the testator, and to determine
upon a reading of the whole will, whether, assuming the limita-
tions therein mentioned to take effect, an interest claimed under
it was intended under the circumstances to be conferred." As a
will on the principle of furthering a bountiful intention of the
testator receives a benignant construction as compared with the
narrower construction of a document in which benevolence has
had no part (g), 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 (h).
Effect cannot be given to a devise merely to " dharm," that term
being too vague (i), but a bequest for specific charitable purposes
recognised as beneficial by the Hindu law will be maintained, as
ex. gr. " for the performance of ceremonies and giving feasts to
Brahmins" (k). The words " patra pautradi krame " include
female heirs as well as male descendants of a female (l) ; the word
" malik " confers an absolute estate (m). A bequest, however,
which has for its object to tie up the corpus and give the profits
to male descendants is invalid (n). When the intention of the
testator cannot be ascertained the will fails (o) ; but in the case
of a will in favour of a charity cy-pres doctrine is usually applied
by the Court (p). In Khitish v. Radhika (q) it has been held that
an administrator pendente lite renders himself liable to be sued
(g) Doe dem Cooper v. Collis, 4 T. K. 294.
(h) See Ram Lall Mookerjee v. Secretary of State for India, L, K. 8 I. A.
46, 62; S. C. 1. L. E. 7 Cal. 304.
(i) Gangbai v. Thavar Mulla Mulla, 1 B. H. C. K. 71; Ranchordas v.
Parvatibai, L. E. 26 I. A. 71.
(k) Lakshmishankar v. Vaijnath, I. L. E. 6 Bom. 24; Dwarkanath Bysack
v. Burroda Persad Bysack, I. L. E. 4 Cal. 443; a cy pr^s disposal of a fund
bequeathed for charity would be quite in accordance with the Hindu law.
Comp. Mayor of Lyons v. Adv. Gen. of Bengal, L. E. 3 I. A. 32; and ths
case I. L. E. 4 Cal. 508.
(I) Lalit Mohun v. Chukkan Lai, L. E. 24 I. A. 76.
(m) Motilal v. Adv. Gen. of Bombay, I. L. E. 35 Bom. 279; Damodar v.
Dayabhai, Tj. E. 25 I. A. 126.
(n) Shookmoy Chunder Dass v. Movohari Dassi, I. L. E. 7 Cal. 269.
(o) Anandro Vinayak v. Adv. Gen. of Bombay, I. L. E. 20 Bom. 450.
(p) In the matter of Hormusji Franiji, I. L. E. 32 Bom. 214; Runchordas v.
Parvatibai, L. E. 26 I. A. 71.
iq) I. L. E. 35 Cal. 276.
MAINTENANCE. 226
as quasi-executor de son tort to pay the debts incurred by the
deceased, if he intermeddles with the estate.
X.— MAINTENANCE.
In the frequent changes of fortune which occur under the
British rule in India giving a new and wider field to individual
activity, the claims of destitute dependants of families become
more numerous and pressing, at the same time that the general
prosperity is advancing. The loosening of old ties makes some
members of the Hindu community less ready than formerly to
provide for their indigent relatives, while the latter, advised by
persons having some acquaintance 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
associations 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 trouble-
some— troublesome chiefly because 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 during coverture and the restrictions to which they are
subjected in their widowhood, but claims of children on parents
as well as of parents on children, and other members of families
on their co-members are becoming common enough to make it
desirable to bring the principal, decisions together and compare
them with what can be gathered from the acknowledged sources
of the Hindu law on the same class of subjects.
A wife is entitled to maintenance from the husband during coha-
bitation with him, and even when she leaves him to live apart for
a justifying cause (r), e.g., cruelty on his part, or for not guarding
her against ill-usage in his house (s), his apostacy (t), keeping
a Mohammedan or Christian concubine (v) until he dismisses his
(r) Kalyan v. Dwarkanath, 6 Cal. W. E. 116; Nitya v. Soondra Dasi, 9 Cal.
W. R. 476.
(s) Matangini v. Jogendra, I. L. R. 19 Cal. 84.
it) Mansha v. Jiwan, I. L. R. 6 All. 617.
(v) Lola Govind v. Doiolat, 14 Cal. W. R. 451; Paigi v. Sheo Narayan,
I. L. R. 8 All. 78.
H.L. 15
226 HINDU LAW. _ [BOOK I.
mistress and performs the penance, his or her conversion to
Christianity. When the husband has given some property to his
wife sufficient for her maintenance, she cannot claim from him a
separate maintenance besides ; but on his death his bounties will
not impair her claim to maintenance (p). She cannot be deprived
of her right to maintenance either by a will or by a disposition
inter vivos, nor is the right alienable (q). Arrears of maintenance
may be attached in execution of a decree against the beneficiary
and sold (r). Conversion to Islam dissolves the marriage and puts
an end to her claim to maintenance, but conversion to Christianity
of either spouse does not deprive her of the right thereto, unless a
divorce has been pronounced under Act XXI. of 1866 and the
Court has refused to allow her any maintenance (s).
On the subject of the maintenance of widows, three questions
have been judicially discussed : (1) Whether the right to main-
tenance 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 maintenance is sought of an^ ^.stral
property or of property inherited from the deceased husband?
(3) Whether, when the right exists, the members of the husband's
family 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 observed that a
partition does not effect such a total severance amongst the
members of a Hindu family that they stand thenceforth 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 tliose of the half-blood (t) ; the obstacles
to marriage still subsist between their families; in obsequies,
(p) Joy Tara v. Rama Hari, I. L. E. 10 Cal. 638.
iq) Hindu Wills Act (XXI.) of 1870, s. 3; Narhadabai v. Mahadeo, I. L. E.
5 Bom. 99; Haridas v. Baroda, I. L. E. 27 Cal. 39; Comul Money v. Ramnath,
1 Fulton, 203; Joytara v. Ram, I. L. E. 10 Cal. 638.
(r) Rajerao v. Nanarao, I. L. E. 11 Bom. 528; Dehia v. Koroona, 8 Cal.
W. E. 41.
(s) Gungas Case, I. L. E. 4 Bom. 330; Gohardhan v. Dasi, I. L. E. 18 Cal.
252 ; In re Ramkutnari, I. L. E. 18 Cal. 264.
(t) Yajn. II. 139, and Vijnanesvara's Commentary; Mit. Chap. II., sec. IX.
See Col. Dig., Book V., T. 433, Coram., and Ramappa Naicken v. Sithamal,
I. L. B. 2 Mad. 182.
MAINTENANCE. 227
mauming and the ceremonial impurity arising from death : they
are still relatives as they were before the 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 (v), whose sacrifices she shares and who succeed ultimately
to any property which she as a widow may inherit. With her
own family her connexion is altogether of a remote and secondary
character. It is not destroyed, as the humane spirit of the
Hindus forbids an entire renunciation 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 inexorable logic supported by
sacred sanctions transfers with her person her duties and her
protection to the family of marriage. In Sri Virada Pratap
Raghunanda Deb v. Sri Brozo Kishno Putta Deb (w) the Privy
Council say " The Hindu wife upon her marriage passes into and
becomes a member of that (the husband's) 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 " (x). 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 maintaining
her they have full power" (y). The word " isvarah," here
translated " power," implies an attribute of superiority which 'm
most conspicuous in the form of active 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 (z), and the duties are in them-
selves unconditional. All these ideas indeed are involved in
guardianship. The perpetual dependence assigned to a woman (a^
is accompanied by an indefeasible claim to nurture, shelter, and
(o) See Vasishtha IV. 19.
(w) I. L. R. 1 Mad., at p. 81; S. C. L. R. 3 I. A. 154.
(x) See also per Loch, J,, in Khetramani Dasi v. Kashinath Das, 2 Beng.
L. R., at p. 20, A. C. J.; Col. Dig., Book IV., Chap. I., T. 39; Book V. 499
and Coram. ; and comp. Maine, Anc. Law, Chap. V., pp. 153, 184.
iy) Narada, XIII. 27, 28. See also Narada as quoted by Devanda Bhatta
below.
(z) So in Ruvee Bhudr v. Roopshankar, 2 Borr., at p. 725.
(o) Manu. V. 148 ss. ; IX. 2, 3; VIH. 416; Vyav. May., Chap. XX., para. 2.
HINDU LAW. [BOOK I.
gentle usage (h). Who are to satisfy this claim? Primarily the
family she has joined, not the family she has quitted (c). The
latter comes next in responsibility before the burden arising from
utter destitution is thrown upon the caste and the community.
The general right of a widow to support according to the meansi
of her husband's family is asserted by Newton and Janar
dana, JJ., in Sakvarbai v. Bhavani Raje Ghatge Zanjarrav Desh-
mukh (d). In that case the family property had been transferred
by the Satara Government from an improvident 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 stepson for maintenance. He offered 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 stepson 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 appealed 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. Strange's state-
ment that a widow is entitled to a maintenance proportioned to
circumstances of the family (e), and sent down for determination
the following issue, viz.: "Are the circumstances of the case
such as require that a separate residence or an equivalent in
money should be awarded to her (the widow) or should she be
required to reside with the defendant ? ' '
Here though the father as a prodigal had been deprived of the
patrimony, and his second marriage had, it was alleged, been
brought about by a trick in order to injure his son, yet the notion
(6) Manu. III. 55 ss. ; Mit. Chap. II., § 1, paras. 7, 27, 28, 37; § 10, p. 14,
15; Vyav. May. Chap. IV., § 11, para. 12; Col. Dig., Book V., T. 409; Str.
H. L., I., 171, 173, 175; II., 291, 297, 299.
(c) Ramien v. Condummal, M. S. D. A. E. for 1858, p. 154; Pr. Co. in
Sri Virada Pratap Raghunanda Deb v. Sri Brozo Kishno Putta Deb, I. L. K.
1 Mad., at p. 81; Vivada Chintamani, 261, 262, 265.
id) 1 Bom. H. C. K. 194; Raja Pirthi Singh v. Raj Koer, L. R. I. A. Supp.
203; Nitto Kishoree Dossee v. Jogendro Nath Mullick, L. E. 6 I. A. 55;
Rajendranath v. Puttosoondry Dossee, 5 Cal. W. R. 18.
(e) So Buljor Rai v. Mt. Brinja, N. W. P. S. D. A. R. 1862, Pt. II., p. 96.
There, however, the family was united, and had ancestral property.
MAINTENANCE. 229
of the son's repudiating the stepmother's claim to maintenance
seems not to have occurred to any one. The only question was
as to how the maintenance was to be afforded. In the absence
of exceptional circumstances the learned Judges thought that it
must be given and accepted in the household of the stepson.
Stepmothers may perhaps be regarded as having distinct rights
resting on special texts (/), but their rights at any rate are
recognised by the Sastras (g) and by the Privy Council to the
extent of ancestral property in stepson's hands (h), as on the
other hand the stepson's succession to his stepmother's stridhana
is also admitted and vice versa (i).
In Chandrabhagabai v. Kasinath Vithal (k) the widow's
husband had separated from his father and brethren. On his
death she had received his property and had expended it, as
also her mother's property. The Joint Judge in Regular Appeal
held that the separation of her husband from his family had
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 is possessed of any property, what
portion of it is her stridhana? " By stridhana the learned Judges
probably meant such as was not productive of an income, such as
to relieve the widow from indigence, and so far free the defendant
from his obligation. For the rest that obligation in spite of the
partition which had taken place is recognised as binding.
In Tiniappa Bhat v. Parameshriamnia (1) 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 Bai Lakshnii
V. Lakhmidas (m) and to Mula v. Girdharilal (n). In the District
(/) Digest of Vyavasthas, Chap. II., sec. 14, I. A. 3, Q. 1, footnote.
ig) 2 Str. H. L. 316.
(h) Pirthee Singh v. Rant Raj Koer, 12 B. L. K. 238, P. C. ; Godavrihai
V. Saqunhai, I. L». R. 22 Bom. 52; Hemanqini Dasi v. Kedamath, I. L. R.
16 Cal. 758, P. C. ; Baidaya v. Govindlal, I. L. R. 9 Bom. 279.
(i) Digest of Vyavasthas, Chap. II., sec. 14, I. A. 3, Q. 1 ; Russobai v.
Zoolekhabai, I. L. R. 19 Bom. 707.
{k) 2 Bom. H. C. R. 323.
(0 5 Bom. H. C. R. 130, A. C. J.
(m) 1 Bom. H. C. R. 13.
in) S. A. 3,937, decided 6th July, 1858.
230 HINDU LAW. [BOOK I.
Court the case of Mamedala V encutkrishna v. Mamedala Ven-
cutratnama (o) had been rehed on, and local decisions which had
shown the law in Canara, where the case arose, to be that the
widow of a separated parcener was entitled 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 Savitribai
V. Luximbai (p). The question is stated (q) to be : " Can the
plaintiff, 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 far
back as 1853, from the branch of the family to which her husband
and his father (Sadasiv's brothers) belonged, and who had no
paternal estate in his hands at the institution of this suit, and
did not, and could not, so long as the plaintiff lived, inherit any
property from her husband upon whom the estate (if any) of his
father Balcrustna would have devolved?" The judgment pro-
ceeds 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 defendant
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 member upon the other
members of his family. Against the dictum in Timappa's Case
that " the whole policy of the Hindu law is not to allow even a
distantly related widow to starve " (r) the learned Chief Justice
urges that "for that proposition no other authority than the
above cases (dissented from in his judgment) was mentioned by
the Court." It would seem, therefore, that so far as any legal
(o) M. S. D. A. K. for 1849, p. 5.
(p) I. L. R. 2 Bom. 573. See Apaji v. Gangahai, ibid. 632.
iq) p. 581. See Madhavrao v. Gangabai, ibid. 639.
(r) See 1 Str. H. L. 175.
MAINTENANCE. 231
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. Strange 's humane interpretation of the Hindu law
(s) must be received with this restriction. His observations at
p. 171 being limited to the maintenance of a widow as a charge
on the inheritance (t) 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 consideration. Should the estate prove deficient the
learned author says the family of the husband are notwithstand-
ing liable, but he is still contemplating the case of a possible
inheritance by the husband's brethren, not that of their post-
ponement 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 partition. In the
Bengal case of Khetramani Dasi v. Kashinath Das (v), Loch, J.
says ' ' as the law originally stood it appears to me from some of
the texts quoted above that no separation 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. " Tlie family is the cherished institution of the
Hindus" (w) and the "associated aggregate community of the
family " (x) is as such 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 movable and immovable, eacred and
secular, with powers of disposal or management which vary
accordingly, the land itself is not " free " or " unfree " subject
to gavelkind or other peculiar tenure. All depends in the private
law on personal status and personal relations. These are deter-
mined by birth and by the second birth of marriage. They
impose according to Hindu ideas duties not as springing from or
annexed to property but as inseparably united to the person,
though property is the medium through which in many cases
(s) Strange's H. L. 67, 68.
(t) As to this see Lakshman Ramchandra v. Satyahhamahai, I. L. R.
'2 Bom. 494 ; and Natchiarammal v. Gopal Krishna, I, L. R. 2 Mad. 126.
(o) 2 Beng. L. R., at p. 30, A. C. J.
(w) Bhyah Ram Singh v. Bhyah Ugur Singh, 13 M. I. A., at p. 391.
(x) Comp. Sir H. Maine, Anc. Law, Chap. I., and Chap, V., p. 126.
232 HINDU LAW. [BOOK I.
they must be made effectual 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 (y), so the laws
which govern them rest far less on property save as a modal
circumstance than on relationship. This is not abolished by
partition, though partition modifies the duties arising from it. It
is a modem notion to refer these duties, as Devanda Bhatta refers
them, merely to cases in which property has been inherited or
rather taken by right of participation and survival (z). 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 Devanda
Bhatta quotes the rule with approval, the proper sense of his own
remark which immediately follows may possibly be explanatory,
not limiting, and imply that when in a family the person imme-
diately responsible resigns to the widow the portion on which her
husband and she previously subsisted he need 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 property 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 pre-
judice to the right to protection and sustenance subsisting apart
from the possession of property, and from rules which merely
determine its form, and how it is to be satisfied in particular
cases.
Much has been said in several of the cases on a distinction
iy) See Maine, op. cit, Chap. VI., p. 191.
(z) Smriti Chand. Transl., p. 158. Participation by birth is the typical
form of daya. It is obvious, therefore, that the sphere of day a and of inheri-
tance by which it is translated lie outside each other in the most important
cases. Hence to deal with daya according to notions exclusively proper to
inheritance in the English sense, must needs lead to error and confusion.
I
MAINTENANCE. 233
between the rules of the Hindu law which are mandatory, as
contrasted with those which are simply hortative or preceptive.
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 Hindus the religious element
in the law has acquired a complete predominance " (a), and
Jagannatha, 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 Mitakshara and other received
authorities.
In Yajnavalkya's laws, of civil judicature the subject of a
judicial process is said to be a "complaint of being aggrieved
contrary to law or usage"; but "law" translates " Smriti,"
the sacred scripture, as " achar, " may be rendered " ordinance "
as well as " practice." The rules in the Smritis, as for instance
in Yajnavalkya's, are set forth in immediate connexion and with
constant reference to this idea, and so expounded by commen-
tators like Vijnanesvara in the Mitakshara (c). In chapter VIII.
of Manu, " On Judicature and on Law," ^he 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 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 declara-
tion, however well authenticated and supported, can be effectual
if opposed to "dharm," or to recognised usage, and sloka 8 that
the king is to adjudicate according to the " eternal dharm." So
in Narada, Book II. Chap. X. para. 7, it is said, " If wicked acts
unauthorised by (= contrary to) the moral law are actually
attempted let a king who desires properity repress them."
(a) Maine, Anc. Law, Chap. VI., p. 192.
ib) Col. Dig., Book v., Chap. II. ah init. and T. 77, Comm.
(c) See Macn. H. L., p. 141, and Roer and Montriou's Yajn. vol. II. 5, 12,
21, I. 7; and Stenzler's Text, pp. 4, 45.
234 HINDU LAW. [BOOK I.
Whatever precept of the Smritis, therefore, had been violated to
the injury of a complainant, whether expressed in terms horta-
tive or prohibitory, and whether a penalty was annexed to the
rule or not, the alleged injury might, if the prince or the judges
so willed, be remedied or punished without an " excess of
jurisdiction " (d). No Hindu 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 supplements 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 state-
ment. The distinction, therefore, on which English judges have
relied so much was for the Hindu judges hardly a distinction at
all (e). They exercised conformably to the Sastras and to
custom a jurisdiction as indeterminate as that of the early Chan-
cellors in England (/), and would enforce any duty enjoined by a
Smriti which either in the class or in the instance seemed of
sufficient importance to warrant the exercise of their power.
One class of propositions received an early and comparatively
full exposition from the commentators and was applied with
strictness by the Indian' courts — that relating to ownership, its
acquisition, devolution and partition. The needs of society
imposed this duty on the Nyayadhish, but for the Brahman com-
mentator 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 dis-
cussed. Possession too as a source or element of property 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 recognised 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 Hindu jurists in
(d) See Yajn. I. 360; Muttayan Chetti v. Sivagiri Zamindar, I. L. R.
3 Mad., at p. 380.
(e) Comp. Maine's Anc. Law, pp. 16, 23, 192.
(/) See Spence, Equit. Jurisd. I. 367 ss. and references.
MAINTENANCE. 235'
this sphere take every form from stern command and denuncia-
tion 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 (g), " 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 punishment, and therefore being
done it must be recognised. But this is a very incorrect view of
the case and would, as observed by Sir F. Macnaghten, authorise
the perpetration of a vast variety of crimes. The law has not
been so improvident. It has stated what ought 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 Hindu administration."
It is 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
recognise too that the tie of consanguinity was less binding as
the relationship was more remote (h). The changed conditions
of life in modem as compared with ancient days might also be
(g) Works, V. 73. A husband's alienation depriving his widow of subsis-
tence is invalid. Jamna v. Muchal Sahu, I. L. E. 2 All. 315.
{h) 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. Yajnavalkya's text is the widest.
Devala, quoted in Col. Dig. Book V., T. 80-82, would seem to have limited
the connexion which gave rights of inheritance to four degrees (counting inclu-
sively) in the ascending and descending lines. Thus the seventh degree, the
relationship between two second cousins, would be the extreme point of recog-
nized 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 Samanodakas. The want of
236 HINDU LAW. [BOOK I.
fairly taken into account in applying the rule of expediency.
♦Courts under Indian administration could not have found a direct
warrant perhaps for leaving any widow of the family to absolute
starvation, but they might hold that the rules as laid down con-
templated 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 (f), it niay
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 Hindu law
itself approves. That law certainly ascribes extraordinary
authority to a Court in which three judges of ordinary attain-
ments sit with a chief judge specially appointed for eminent
learning by the king (k).
The right to maintenance even of a female member of a joint
family does not according to Hindu ideas imply a right to a
separate allowance in money or in kind. She is considered as
uniformity amongst the different schools of doctrine as to the remoter succes-
isions 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 connexion of superior and inferior, is shown to have been common
amongst the European branches of the Aryan family by Dr. Hearn (The Aryan
Household, Chap. 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 collaterally from that point,
as the Canonists counted the degrees only on the longer of the two lines
.diverging from the common source (see Jus. Can. by Keiffenstuell, vol. II.,
pp. 493-6). 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 recognised names of relationship amongst the Romans extended only to
second cousins, i.e. to the sixth, or according to the inclusive mode of reckoning
the seventh degree (see Poste's Gains, B. I., § 68), and it seems not unlikely
that the range of recognised relationship under the Canon Law and of Gotraja-
sapindaship under the Hindu law (see above, p. 113) was extended by a
somewhat analogous process. The genealogies preserved by the hereditary
purohits readily lent themselves to any desired extension of gentile connexion.
As to the variations of the Christian ecclesiastical law, see Zachariae Jus.
*Graeco-Rom. Li. I., Tit. I., § 4.
(t) See also 2 Str. H. L. 16.
(fe) Manu. VIII. 11. Comp. Mit. on the Adm. of Justice, Chap. I., § 1.
MAINTENANCE. 237
taking her substance in the family abode of her sustainer, and
then performing in return her share of the domestic duties. If
she is forced by ill-usage to quit the house she may on that
ground claim an allowance fairly proportional to her needs
and the means of the family or person liable. If she withdraws
for little or no reason she may still, according to the decisions,
claim an allowance, but not one in excess of what would be the
cost of maintaining her in the reduction of the household
expenses fairly estimated as arising from her going away with the
consequent loss of her services (l). There are numerous
instances in which maintenance is recoverable, e.g., disqualified
persons, concubine, illegitimates (m)," the title to which cannot
be said to rest on contract. The proper view seems to be to
regard maintenance in its general aspect as a liability created by
the Hindu law in respect of the jural relations of the Hindu
family, and this would be so even in the case of a continuous-
concubine; for she is the dasi or sudri or serva of the pater-
families. The liability of the husband to maintain his wife is an
obligation arising out of the status of marriage amongst Hindus
expressly imposed by the law. And generally in such other
instances in which maintenance is prescribed by the same law
we hold that the right depends on the status to which the law
appends it " (n).
Personal inquiries made since the judgment in Savitribai's Case
in several districts of the Bombay Presidency seem to establish
that though a moral claim of every widow to support is recognised
even in a divided family, a legal right is hardly admitted.
Widows of separated relatives are to be found in the households
of many Hindu gentlemen, but it would be a wrong assumption
that amongst people thus 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 maintenance is almost invariabl^^
recognised, though as to the incidence and apportionment of the
(I) Bhagwan v. Bindoo, 6 Cal. W. E. 286.
(m) Khemklor v. Umashankar, 10 B. H. L. K. 381 ; Vrandavandas v.
Yamunahai, 12 Bom. H. C. K. 229.
(n) Sidlingappa v. Sidava, I. L». R. 4 Bom 628, per Westropp, C.J.
•238 HINDU LAW. [BOOK I.
burden no exact consensus 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 (o). 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 Vyava-
hara Mayukha limits the text of Narada (p) 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 ances-
tral wealth. In the passage from Katyayana (q) which
Nilakantha quotes immediately afterwards, the particle " tu,"
translated " or, " includes the sense of * * but " ; so that the sense
is ' * The widow receives food and raiment but (where there is pro-
perty) may (also) be assigned a share of it for life." The Sastris
have uniformly accepted the rule in this sense so far as can be
gathered from their omission to set forth the possession of ances-
tral property as essential; and it is established by authenticated
usage as the law of many castes. This is shown below.
That the recognition of the share of a parcener as primarily
liable for his widow's maintenance does not imply that she has
no right when there was no property, may be gathered from
Jagannatha's comment on Yajnavalkya's text providing for the
daughters and the childless wives of disqualified members of the
family, " since it is directed that daughters must be supported
so long as they be not disposed of in marriage, it appears that
the nuptial (expenses) shall be defrayed, and that (= that is) if
no share be received by a son ; 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 whose father is dead " (r).
The Mitakshara cites a passage from Harita, "If a woman
becoming a widow in her youth be headstrong (still) a mainten-
(o) Smriti Chand., Chap. XI., sec. I., paras. 34, 35, Transl. pp. 168, 159.
(p) Stokes's H. L. B., p. 85.
(q) Stokes's H. L. B., p. 85.
(r) Col. Dig., Book V., T. 334, Comm. This is in fa<:t a portion of the
father's obligations falling on the son subject to his exoneration only when the
misappropriation of property actually existing transfers the duty to him who
has taken it. See Vyav. May., Chap. IV., sec. V., para. 16.
MAINTENANCE. 230
ance 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" (s).
The right to support is not contemplated as dependent on pro-
perty, though should there be property it may be satisfied out
of it. If the right as Vijnanesvara possibly thinks belongs to a
widow of a separated parcener, that affords an a fortiori reason
for recognising it in the case of a widow of one who has died a
member of a joint family. While that family subsists and is
capable she must look to it alone for maintenance. The Viramit-
rodaya lays down this rule for widows and daughters in a re-
united family (t). The duty of the Hindu householder there-
fore seems not to have been exaggerated by Sir T. Strange when
he described it as " co-extensive with his family " (u), 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" (w). Yajnavalkya, like Narada, 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" (x).
Jagannatha, resting on the familiar text of Manu, declares :
" The father is bound to support the family of his son, and it i«
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 (them-
^ selves) entitled to maintenance from the same person " (y). This
is said of the family of a student who has not then acquired pro-
perty. Consistently with this Colebrooke says (z), 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's maintenance, had he refused or neglected to
support her." Nothing is said of the father's having ancestral
property. In a similar case where the father may have had
ancestral property, but the son distinctly had no separate estate,
(s) Mit., Chap. II., sec. I., para. 37.
(t) Viramit. Trans., p. 219.
(v) 1 Str. H. Ij. 67 ; Raja Braja Sundar Deb v. Srimati Swarna Manjari
Dei et al, P. C. 0. C. 29, 1917.
(w) Op. cit. 172.
(x) Col. Dig., Book IV., Chap. I., sec. I., T. 6.
(t/) Col. Dig., Book v., T. 379, Comrn. See also per Sir M. Sausse, C.J.,
in Ramchandra v. Dada Naik, 1 Bom. H. C. R. Ixxxiv. Appendix, and Macn.
[n. L., vol. II., Chap. II., Case 8.
{z) Op. cit. vol. II. 412.
240 HINDU LAW. [BOOK I,
the son's widow was pronounced entitled to maintenance from
her father-in law. In this opinion Colebrooke and Sutherland
concur (a), as Sutherland did in a similar claim by the son's
widow against the father's widow (b). In another case (c) Cole-
brooke says that the 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 property 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 Sastris given
below in the Digest of Vyavasthas, Chap. II. sec. 1. Q. 17 ; sec. 6.
A. Q. 27; sec. 7, Q. 10. In the first of these cases the family
was undivided, 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 family was undivided or was understood to be so by the
Sastri, but it does not appear that there was ancestral property
held by the father. In the third case the pre-deceased son may
oi* may not have been separated from his father. There is no
suggestion that he left any property, nor is there any limitation
of the widows right to the amount of his share. The Sastri
evidently regarded the property left by the father as having been
solely his own, but the obligation of maintaining the son's widow
as one that had been binding on the father and after his death
passed to the mother along with the means of satisfying it.
The self-acquired property of a father-in-law in the hands of an
heir is thus bound for the maintenance of a daughter-in-law (e);
but not if he has bequeathed it (/) though the Madras and the
Allahabad High Courts hold a different view (g). In ancestral
(a) 2 Str. H. L. 233. So in Rat Sham Ballubh v. Prankishen Ghose, 3 C. S.
D. A. K. 33; Musst. Himulta Chowdrayn v. Musst. Pudoo Munee Chowdrayn,
4 ibid. 19.
(b) Op. cit. II. 235.
(cj Op. cit. II. 297; Macn. H. L., vol. II., Chap. II., Case 4.
(d) So 2 Str. H. L. 12, 16; Macn. H. L., vol. II., Chap. II., Case 7.
(e) Adhirbai v. Nathu, I. L. R. 11 Bom. 199; Yamunabai v. Manubai,
I. L. R. 23 Bom. 608; Jankibai v. Nundram, I. L. R. 11 All. 194.
(/) Bai Paravati v. Tarwadi, I. L. R. 25 Bom. 263.
ig) Rangammal v. Echammal, I. L. R. 22 Mad. 305; Becha v. Mothina,
I. L. R. 23 All. 86.
MAINTENANCE. 241
property the son's right to a share comes into existence and dies
along with him (h), so that it could not be as annexed to an inheri-
tance in the English sense that the father's obligation attached
to him. The father and son having been joint tenants if not
tenants by entireties, the son could not even charge the common
estate according to the principle jus accrescendi praejertur
oneribus, except under circumstances specially provided for (i).
In the case of a disqualified person no ownership generally
comes into existence at all over the ancestral estate (k). He is
entitled merely to maintenance which is accorded to him by the
texts in the same terms as to wives and widows (I), and which
they forfeit by unchastity (m). His right is a charge or an equity
to a settlement on the property when there is property (n), but
the duty of maintaining him is not therefore limited to what but
for his incapacity would have been his share (o). It is on rela-
tionship that the right is founded, and the right of the widow of a
member, herself a member of the family, rests equally on relation-
ship, 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 (p). In
the cases at pp. 83 and 90 of vol. 2 Strange 's Hindu Law, the
widow left destitute by her husband is recognised as having a
right to maintenance from her brother's widows. Her brother
(h) Udaram Sitaram v. Ranu Panduji, 11 Bom. H. C. R., at p. 86.
(t) Mit., Chap. I., sec. I., paras. 28, 29; infra, Digest of Vyavasthat-,
Chap. II., sec. 6 B. ; Radhahai v. Nanarav, I. L. R. 3 Bom. 151.
(k) See Digest of Vyavasthas, Chap. VI., sec. 1.
(l) Bat Kanku v. Bat Jadhav, I. L. R. 8 Bom. 15.
(m) Slonnhhoy v. Manjamma, I. L. R. 9 Bom. 108.
(n) Khetramani Dasi v. Kashinath Das, 2 Ben. L. R., at p. 52, A. C. J.
(o) Digest of Vyavasthas, Chap. VI., sec. 1 Q. 5.
(p) In the MS. Collection of Caste Laws gathered by Mr. Borradaile there
are many instances in which 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 out 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 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 still some answers, as in
Book G, sheet 25, state an unqualified duty to support the widow in the family
house, her resort to her pulla even being (ibid. 32, 49, 55) [Ibid. Koombars 8,
Machee Gudrya 25, Vaghree 30, Khalpa Khumbarta 48] necessary only in the
absence of relatives of her husband.
H.L. 16
242 HINDU LAW. [BOOK I.
could not have held ancestral property along with her husband,
or inherited from him, and the obligation arising as against a
brother only on the incapacity of the husband'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 Chandrika, 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 father (q). For this
Devanda Bhatta cites a passage of Katyayana ending: — "The
kinsmen shall not be compelled to give the wealth received by
them not being his patrimony. " Here there is nothing about sub-
sistence. 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 Mitakshara or the Mayukha, though many other
passages of Katyayana are quoted by both; and the reason is
obvious. The whole of it is given at Chap. V. para. 16 of the
Daya Bhaga ; 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," Katyayana 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 patri-
mony." There is a various reading " svapitryam " (= it being
their patrimony) which leaves the result unaltered. On the point
for which Devanda uses it, the text says nothing. In Mamedala
V enkutkrishna v. Mamedala V enkutratnamah (r) the Sudder
Court of Madras set aside Devanda 's rule in the province 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; and it cannot be
considered as of any great weight in Bombay.
Under the Mitakshara a daughter-in-law in addition to her
right to support by the surviving co-parceners (e.g. father-in-law)
(s) acquires a right to maintenance out of the ancestral property
in consequence of her marriage (t) and this right cannot be
defeated by devise or gift made by the holder of such property (v).
(q) Smriti Chan., Chap. V., paras. 23-25.
(r) Mad. S. D. A. E. for 1849, p. 5.
(s) Surampalli v. Surampalli, I. L. E. 31 Mad. 338.
(t) Jamna v. Machul, I. L. E. 2 All. 315.
(v) Becha v. Mothina, I. L. E. 23 All. 86.
MAINTENANCE. 243
Even the self-acquired property of the father-in-law in the hands
of an heir (w) is liable for her maintenance, and though the
Bombay High Court holds the view that such property is not
so burdened if bequeathed by the father-in-law (x), the Madras
High Court has laid down that her right to maintenance is not
affected by any testamentary disposition in favour of volun-
teers (y). The Bengal School regards the father-in-law bound to
support a daughter-in-law, even though he has only self-acquired
property {z).
Yet 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 (a). 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 incum-
bent on him by merely selling the patrimony though he may
keep the proceeds, or obtain the fruits of his unprincipled con-
duct 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 (b). The case is discussed in Luximan Ramchandra
v. Satyabhamabai (c), 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 Hability
is not disputed (d). So also as to the passage of Narada and the
[Comment on it given at p. 174. Mitramisra indeed takes the
(w) Siddesury v. Jonardan, 5 Cal. W. N. 549; S. C. 6 Cal. W. N. 530;
IS. C. I. L. R. 29 Cal. 569.
(x) Bai V. Tarwadi, I. L. R. 25 Bom. 263.
iy) Rangammal v. Enchammal, I. L. R. 22 Mad. 305.
(z) Siddesury v. Jonardan, 6 Cal. W. N. 580; Khetra v. Kasi, 10 W. R. 89;
S. C. 2 Ben. L. R. 15.
(a) Gangahai v, Sitaram, I. L. R. 1 All. 170.
(6) Book II., Introd. § 4 F.
(c)I. L. R. 2 Bom., at p. 579.
(d) See Vyav. May., Chap. V., sec. IV., para. 14.
244 HINDU LAW. [BOOK I.
command to support the widows as specially applicable to those
of a separated coparcener of a rank lower than the " patni," and
says that "whoever takes the estate" must afford them main-
tenance " by reason of succession to the estate." Such is the
rule, he says, when there is an estate to succeed to : he who takes
the benefit must take the burden. He takes the property
whether movable or immovable with a legal obligation to main-
tain the persons whom the late proprietor was morally bound to
support, as for instance, a pre-deceased brother's widow when
property is inherited from the father (e). 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 Hindu 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
pronounced on those who fail to provide for the helpless members
of their family, the conclusion may be hazarded that Colebrooke
and others had sufficient grounds for opinions to which the actual
practice of the people generally conforms. In a united family it
would seem that in some form maintenance may be claimed by
the widow of a deceased member as a right not dependent on
property though in a measure regulated by it (/), 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 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 property
and then sought maintenance from his two brothers solely
dependent on their profession as schoolmasters, the rejection of
the claim (g) might be referred to the principle of the repression,
of fraud in the comprehensive sense given to it in the Hindu
law {h), but in other cases (i) it has been said that a widow's
(e) Kamini Dassee v. Chandra Pode Mondle, I. L. E. 17 Cal. 373; Janki v.
Nandram, 1. L. K. 11 All. 194; D. B., Chap. XI., sec. VI., para. 13; Raja
Braja Sundar Deh. v. Srimati Swarna Manjari Dei et al., P. C .0. C. 29, 1917.
(/) See Narhar Singh v. Dirgnath Kuar, I. L. E. 2 All. 407. -
ig) Ganesh \.,Yamunahai, Bom. H. C. P. J. 1878, p. 130.
(h) Comp. Paro Bihi v. Giiddadhar Banerjee, 6 C. W. E. 198. In the case
of Bai Lakshmi v. Lakhmidas, 1. Bom. H. C. E. 13, the widow had taken a
share of her deceased husband's estate, but when after thirty-four years she
became destitute the Sastri and the Court pronounced her stepson and his sons
MAINTENANCE. 245
claim extends only to the interest of her deceased husband in
the undivided property.
In close connexion with the right to maintenance, forming part
of it indeed, stands the widoiv'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
Sastris (k). Should her residence in the family dwelling be
extremely inconvenient she may be lodged elsewhere (I), but the
obligation cannot be shaken off by a sale of the dwelling (m),
unless it be in execution of a decree for a family debt (n), or a
debt contracted by the husband (o). The head of the family is
still bound, and the property itself (p) unless taken by a circum-
spect purchaser without notice of the widow's right (q). Her
liable for her maintenance. In that case there had been no fraud. Comp.
Bom. H. C. P. J. 1878, p. 139.
(i) See Madhavrao v. Gangahai, I. L. E. 2 Bom. 639; the F. B. Case,
7 N. W. P. E. 261; Visalatchi Ammal v. Annasamy Sastry, 5 M. H. C. E. 160;
Ganga Bai v. Sita Ram, I. L. E. 1 All. 170; Narhar Singh v. Dirgnath Kuar,
I. L. E. 2 All. 407. Bom. H. C. P. J. 1878, p. 131.
(k) See above, p. 75, Dig. Vyav., Chap. I., sec. 2, Q. 7, 11, 12, 25, 26. See
Index, Tit. Eesidence; Gauri v. Chandramani, I. L. E. 1 All. 262; Bhikham
Das V. Pura, I. L. E. 2 All. 141 ; Mangal Debt v. Dinanath Bose, 4 Ben. L. E.
73, 0. C. J. ; Bai Devkore v. Sanrnukhram, I. L. E. 13 Bom. 101; Jogindra v.
Fulkarni, I. L. E. 27 Cal. 77 ; Mahalakshamma v. Venkata, 1. L. E. 6 Mad. 83.
(I) Ibid.
(m) See infra, Dig. Vyav., Chap. I., sec. 2, Q. 9; Lakshman Ramchandra t.
Satyabhaniabai, I. L. E. 2 Bom. 494, 506.
in) Ramanadan v. Rangammal, I. L. E. 12 Mad. 260.
(o) Soorja Koer v. Natha Baksh, I. L. E. 11 Cal. 102.
(p) Mangala Debi v. Dinanath Bose, 4 Ben. L. E. 73, 0. C. J. ; Srimati
Bhagabati Dasi v. Kanailal Mitter, 8 Ben. L. E. 225 ; Gauri v. Chandramani,
I. L. E. 1 All. 262 ; Talemand Singh v. Rukmina, I. L. E. 3 All. 353.
iq) See Lakshman Ramchandra v. Satyabhamabai, I. L. E. 2 Bom., at
I pp. 614, 518, 519. In Parwati v. Kisansing , Y was a widowed daughter-in-law
jof X. She occupied a house allowed to her as residence by X. This was
attached in execution of a decree against X by his creditor C ; Y then sued X
,for maintenance and residence in the house occupied by her. This was adjudged
'to her. In the meantime X's interest in the house 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 mainten-
•ance, the judgment observes " We may assume that this is correct," but found
it no ground for disturbing Y. This if laid down without regard to the nature
fof 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 Satyabhamabai' s Case, but the proceedings may have suggested to
246 HINDU LAW. [book I.
general right to sustenance is guarded against fraud in one taking
the family property when there is such property, but it does not
constitute an interest in the estate unless it has been limited by
a decree or a legal transaction (r). Her own resignation of her
right cannot be effectual, seeing that as a wife she is incapable
of contracting (s) except with reference to her stridhana [t), that
during her husband's life her right is a mere expectancy {v), and
that afterwards she cannot deal by anticipation with her right to
subsistence, which is a personal relation between her and her
husband's heirs, though she may dispose of that to which by
allotment in partition she has acquired a right ad rem (w).
the Court that there had been collusion for the purpose of getting rid of the
daughter-in-law Y.
(r) Lakshman Ramchandra v. Satyahhamahai, supra; Kalpagathachi v.
Ganapathi Pillai, I. L. E. 3 Mad. 184, 191.
(s) Manu. 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., Chap. IV., sec. X., para. 7, and even the presents of friends
except in special cases, ibid. Col. Dig., Book V., T. 470.
(t) S. A. 261 of 1861; Nathuhhai Bhailal v. Javher Raiji, I. L. E. 1 Bom.
121; Govindji Khimji v. Lakhmidas Nathubhoy, I. L. E. 4 Bom. 318;
Nahalchand v. Bai Shiva, I. L. E. 6 Bom. 470; Narotam v. Nanka, ibid. 473;
Col. Dig., Book v., T. 475; Col. on Oblig., Book II., Chap. III. 54.
(o) The Judicial Committee declined to af&rm the principle that an expectant
interest can be the subject of a sale under the Hindu law. Baboo Dooli Chand
V. Baboo Brij Bhookan Lall, decided 4th Feb., 1880; S. C. 6 Cal. E. 528, P. C. ;
Amrit Narayan Singh v. Gay a Singh et al., P. C. Nov. 22, 1917.
(w) See on the woman's general dependence, below, sec. XX; Yajn. I. 85;
Vyav. May., Chap. IV., sec. V., para. 17. That she is always under tutelage
see Steele, L.C., 177 ; especially a widow, per Grant, J., in Comulmoney Dossee
V. Rammanath Bysack, 1 Fult., at p. 200, and per Seton, J., ibid. 203. As to
her general incapacity to contract, Narada, Pt. I., Chap. III. 27, Chap. IV. 61;
Vyav. May., Chap. II., sec. I., para. 10; Col. Dig., Book I., Chap. I., T. 8;
Ellis in Madras Mirasi Papers, 198; that she may like an infant be repre-
sented by a next friend, Vyav. May., Chap. I., sec. I., para. 21. That her
right as mother or wife is untransferrible, see Bhyrub Chunder Ghose v. Nubo
Chunder Gooho, 5 C. W. E. Ill; Ramabai v. Ganesh Dhonddev Joshi, Bom.
H. C. P. J. 1876, p. 188, except perhaps where a specific charge has been
decreed ; Gangabai v. Khrishnaji, Bom. H. C. P. J. 1879, p. 2. But the right
is doubtful even then, see Seith Gobin Dass v. Ranchore, 3 N. W. P. E. 324;
Bai Lakshmi v. Lakhmidas Gopaldas, 1 Bom. H. C. E. 13; Ramabai v.
Trimbak Ganesh, 9 Bom. H. C. E. 283. As to the share given on partition,
see Bhugtoandeen Doobey v. Myna Baee, 11 M. I. A., at p. 514. The con-
tracts which have sometimes been relied on even if consistent 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 I. of 1872, sec. 111. See Narbadabai v. Mahadev
MAINTENANCE. 247
The question remains of how the right to maintenance where
it exists is to be satisfied. On this point the Mitakshara is silent,
which, however, shows only the fragmentary manner in which as
a running commentary on a particular Smriti it deals with the
body of the law. In the Vyavahara Mayukha (x) it is said that
in an undivided family the widow " obtains food and raiment or
else a share so long as she lives " (y). As a condition, however, she
is to be assiduous in service to her " guru" that is " to her
father-in law and other (head of the family supporting her). At
his pleasure she may receive a share ; otherwise merely food and
raiment." The '' anna vastra," translated " food and raiment,"
means a direct supply of necessaries as distinguished from a
money allowance (z). Katyayana's Smriti (a) on which this
precept rests contains the further direction as given in the Vivada
Chintamani (h). "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 stridhana is to be delivered by his sons provided she
remain with the family of her husband, but not if she live in the
family of her father " (c). A various reading in Varadraja (d)
supports her right to her stridhana 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 husband's hfe by a kind
Narayan, I. L, K. 5 Bom. 99, and the references. In England there can be
no contract between a husband and his wife, Leg at d v. Johnson, 3 Ves. 352,
358, nor can any agreement between them alter her legal capacities as a married
woman, Marshall v. Button, 8 T. E. 645. The same rules hold under the
Hindu law by which the wife's dependence, and the husband's dominion and
obligations are as strongly recognised as by the English law, and in a way
remarkably analogous to it. See "Vyav. May., Chap. IV., sec. X., para. 7 ss. ;
Chap, v., sec. IV., para. 20; Chap. XX.; Col. Dig., Book V., T. 470;
Nathubai Bhailal v. Javher Raiji, I. L. E. 1 Bom. 121; Ramabai v. Trimhak
Ganesh, 9 Bom. H. C. E. 283; S. A. 94 of 1873. [As to the English law, see
now 45 & 46 Vict. c. 75.]
(x) Chap. IV., sec. 8, para. 7.
(y) See Viramit. Transl., pp. 173, 174.
(z) See the Sastri's answer in Ichha Lakshmi v. Anandram, 1 Borr. E., at
p. 130.
(a) See Viramit. Transl. 173, 174.
(b) Transl. p. 261.
(c) Col. Dig., Book v., T. 483
(d) Transl. p. 50.
248 HINDU LAW. [BOOK I.
of distraint in cases where food, apparel, or habitation is with-
held, Katyayana says (e), " 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 " (/). Apart from this Katyayana,
as we have seen, says property promised by her husband as etrid-
hana — a promise specially sacred (g) — may be withheld by the
sons if she choose to withdraw to her own family (h). Various
readings of the Smritis give a different sense (i), but the ones
adopted by Jagannatha were approved by Colebrooke, whose
opinion, confirming that of the Sastri, is 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 Sastris in the Bombay Presidency
have always given similar opinions, making the widow's right one
to maintenance as a member of the household in the husband's
family (k). The Judicial Committee also say, " The Hindu 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 " (l).
Consistently with these authorities it was said in Udaram v.
Sonkahai (w) that " the ordinary duty of a Hindu widow is to
reside with her husband's family, who in return are charged with
the duty of maintaining and protecting her " (n), but it was in
the same case n.iled that for a failure in kind usage the widow
might leave her father-in-law's house and obtain a separate main-
(e) VivadaChint.,p. 266.
(/) Col. Dig., Book v., T. 481; Col. in 2 Str. H. L. 401; Raja Braja Sundar
Deh. T. Srimati Swarna Manjari Dei et al., P. C. 0. C. 29, 1917.
ig) Viram. Transl., p. 228.
(h) Col. Dig., Book V., T. 483; Vivada Chint. 265.
(•) See Varadraja, pp. 50, 61.
(k) Kumla Buhoo v, Muneeshunkur, 2 Borr. 746; infra, Dig. Vyav., Chap. I.,
8ec. 2, Q. 12, 25; Chap. II., sec. 1, Q. 6; sec. 6, A. Q. 2 ; Sp. Ap. 5 of 1862;
see Rango Vinayak v. Yamunabai, I. L, R. 3 Bom., at p. 46, and see 2 Macn.
H. L. Ill, 118; 1 Str. H. L. 244, 245; 2 ihid. 272.
(l) Sri Raghunadha v. Sri Broze Kishore, L. R. 3 1. A., at p. 191.
(m) 10 Bom. H. C. R. 483; Khetra v. Kasi, 10 W. R. 89; S. C. 2 Ben.
L. R. 15.
(n) "A widow's nearest guardian, if there be no dower, will maintain her."
Answers of Castes (Brahmans) to Borradaile's questions, Book E., p. 13 MS.
I
\
MAINTENANCE. 249
teiiance. In Rango Vinayak v. Yamunabai (o) it was held that
although in the discretion of the Court a separate maintenance
might be awarded to a widow quitting her husband's family, yet
this could not ordinarily be claimed. " All she can strictly
demand," it was said, '* is a suitable subsistence when necessary
and whatever ie required to make such a demand effectual." In
the absence of any special cause for her withdrawal a separate
allowance was refused (p). In a previous case (q) 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 warranted in awarding to her
a residence and a separate maintenance out of the family estate
in his hands. ' ' The mention of the condition implies that it was
thought essential.
In a Bengal case, however, that of Cassinath By sack v.
Hurrusoondaree Dosse (r), 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 succes-
sion to her husband's estate. This was made the foundation of
the decision of the Judicial Committee in appeal (s). The Hindu
widow in Bengal, it must be borne in mind, takes her husband's
share even in an undivided family {t), and there being no text to
deprive her of the estate on her withdrawing from the family
abode she retains it (v), as does even a widow who becomes
incontinent (w). In the subsequent case of Jadumani Dasi v.
Khetra Mohun Shil (x), Sir L. Peel said that the right of a widow
to maintenance was a charge on the late husband's property in
the hands of the heir. As the property did not descend to the
(o) I. L. E. 3 Bom. 44.
(p) Loss of right to maintenance by removal from her father-in-law's is set
forth as a customary law by many castes in answer to Mr. Borradaile's
inquiries. See Lithog., pp. 53, 74, 82, 83, 160 (177) (211), 194, 475-6, 498;
MS. C. 50, 155; F. sheet 36, 40, 44; G. Sootar Goojar Talabda, Lobar Sootar,
Pardesi Sootar, Lobar Surati ; Sh. 16, 25, 49, 55; Koombar 8, Mochi 20,
Khalpa Khimbatta 48. The only case to the contrary is one in Book F,
Broach Brabmans.
iq) Savitribai v. Luximibai, I. L. R. 2 Bom., at p. 590.
(r) 2 Mor. Dig. 198.
is) See 12 Ben. L. R., at p. 242, 243.
(t) Dayabbaga, Chap. XI., sec. 1, para. 46.
(v) See Viram. Transl., p. 236.
(w) Viram. Transl. 253. See Moniram Kolita v. Kerry Kolitany, L. R.
7 I. A. 116.
(«) Vyav. Darp. 384.
250 HINDU LAW. [book I.
widow the case must have been one under the law of the Mitak-
shara, not of the Dayabhaga. The learned Chief Justice, how-
ever, 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
expected 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." "There 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 modem 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 family.
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 succes-
sion " (y), 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 enjoy-
ment 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 (z). Strictly it is only in
the patni or principal wife 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 united family sacrifices : the wife of inferior
class is not a subject 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 (b) to be made good
by the heir taking the property (c), but the corresponding duty
(y) Judicial Committee in Monirayn Kolita v. Kerry Kolitany, L. K. 7 I. A.,
at p. 151.
U) Vyav. May., Chap. IV., sec. VIII., p. 7; Smriti Chand. Chap. XI.,
sec. I., pp. 33, 46; Vivada Chint. 265.
(a) See Smriti Chand., Chap. XI., sec. I., paras. 9, 10, 12, 15, 21, 35.
(h) Bhyruh Chunder Ghose v. Nubo Chunder Gooho, 5 C. W. R. Ill; Musst.
Duloon Koonwur v. Sungum Singh, 7 C. W. E. 311.
(c) What the Eoman law called a modus.
MAINTENANCE. 251
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 precedence of the mother's subsistence,
and even these are not a charge in such a sense as to prevent the
sons giving a clear title to a purchaser (/). Although therefore
the maintenance of a widow of a coparcener is in a sense a charge
on the estate {g), it does not 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
hability passing with the estate to successors : the claim in that
case was realised against the personal interest of the holder of
the estate, herself a widow. In Narayanrao v. Ramahai (i) the
Judicial Committee recognises that " an obligation ... to make
allowance for the support of the widows analogous to the main-
tenance 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 (k).
But however questionable the origin of the doctrine we are
considering, it has been so frequently acted on that it must now
(d) Lukshman v. Sarasvatibai, 12 B. H. C. K. 69; Adheranee Narain
Goomary v. Shona Malee, I. L. B. 1 Cal. 365; Johurra Bihee v. Sreegopal
Misser, ibid. 470. See Lakshman v. Satyabhamabai, I. L. E. 2 Bom. 494.
(e) Bhyrub Chunder Ghose v. Nubo Chunder, 5 C. W. R. Ill ; Musst. Duloon
Koonwur v. Sungum Singh, 7 C. W. R. 311; Ramabai v. Ganesh, Bom. H. C.
P. J. 1876, p. 188.
(/) Lukshman Ramchandra v. Satyabhamabai, I. L. R. 2 Bom., at p. 505;
Jamiyatram v. Parbhudas, 9 B. H. C. R. 116; Lakshman Ramchandra v.
Sarasvatibai, 12 B. H. C. R. 69; N atchiarammal v. Gopala Krishna, I. L. R.
2 Mad. 126.
(g) Ramchandra v. Savitribai, 4 Bom. H. C. R. 73, A. C. J.
(h)L. R. 2 1. A., at p. 279.
(t) L. R. 6 I. A., at p. 118. Comp. Koomaree Dabea's Case, 1 Marsh. 200.
(fc) 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 :
Sidney v. Sidney, 3 P. Wms. 268; and the wife keeping apart from her husband
cannot claim a separate maintenance: Manby v. Scott, 2 S. L. C. 375;
Marshall v. Rutton, 8 T. R. 545, 547.
:252 HINDU LAW. [book I.
probably be considered as finally established (I). The duty of
residence with the family of the deceased husband has been
reduced to a mere moral obligation (m). In the case of Pirthee
Singh v. Banee Rajkooer (n), 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 principle laid down by Sir L. Peel in Jadumanis
Case (o), and declared the right of the widow to an allowance not
impaired by her withdrawal from the family of her husband. The
case of Narayanrao v. Ramabai (p) from Bombay was very similar
to that of Pirthee Singh, and there being no condition as to resi-
dence in the will, the Judicial Committee held that the widow
' ' was to be left in this respect in the ordinary position of a Hindu
widow, in which case separation from the ancestral house would
not generally disentitle her to maintenance." The law thus laid
down was followed in Kasturhai v. Shivajiram (q) 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 maintenance to show that her withdrawal was necessary
or proper, but 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 " (r), or that the
husband by will has made maintenance dependent on her dwell-
ing with his family (s).
The different 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
jnembers of her husband's family would be glad to part with her
(l) See Suhsoondaree Dossee v. Kisto Kisore Neoghy, 2 Tay. and Bell, 190;
Shurno Moyee Dassee v. Gopal Lall Dass, 1 Marsh. 497 ; Visalatchi Ammal v.
Annasamy Sastri, 5 M. H. C. R. 150.
{m) Koodee Monee Dabea v. Tarrachand Chuckerhutty , 2 C. W. R. 134;
AJwllya Bhai Debia v. Luckhee Monee Dehia, 6 C. W. R. 37; Ganga Bai v,
Sita Ram, I. L. R. 1 All. 170, 174 ; Parvatihai v. Limbaji, I. L. R. 36 Bom.
131.
(«)12Ben. L. R., p. 238.
(o) V. Darp. 384.
(p) L. R. 6 I. A. 114; Gokibai v. Lakhmidas, I. L. R. 14 Bom. 490.
iq) I. L. R. 3 Bom. 372.
(r) See Ramchandra v. Sagunabai, I. L. R. 4 Bom. 261; Godavribai v.
£aqunabai, I. L. R. 22 Bom. 52.
is) Mulji V. Bai Ujan, I. L. R. 13 Bom. 218.
I
I
MAINTENANCE. 253^
Oil 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 " (t). The limitation to a suit for a declaration of the
right is now 12 years under Act. IX. of 1908, Sched. I., Art. 129,
so that decisions under the preceding Acts limiting the claim to-
12 years from the husband's death are no longer applicable (v).
But though 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 (w). A decree fixes the payments awarded as a
charge on the estate (x), and though future sums to become due
are still inalienable (y) the amount decreed for arrears recoverable
as a debt (z) may be attached by the widow's judgment
creditors (a).
Maintenance may be awarded for the future, subject if neces-
sary to a variation on a change of circumstances (b). The award
or refusal of arrears rests in the discretion of the Court; but they
may properly be awarded when it appears they have been with-
(t) Narayanrao v. Ramabai, L. K. 6 I. A., at p. 118; S. C. I. L. 3 Bom. 415.
It cannot be attached : Ramabai v. Ganesh, Bom. H. C. P. J. 1876, p. 188;
Rangubai v. Ramchandra, I. L. R. 36 Bom. 383; Girianna v. Honana, I. L. R.
15 Bom. 236; Siddesury v. Jonardan, I. L. R. 29 Cal. 569.
(o) Ibid.
{w) Jivi V. Ramji Valji, I. L. R. 3 Bom. 207; Binda v. Kunnsilla, I. L. R.
13 All. 126.
(x) Ram Kullee Koer v. The Court of Wards, 18 C. W. R. 473; Koomaree
Debia v. Roy Luchmeeput Singh, 23 C. W. R. 33; Gangabai v. Krishnaji
Dadaji, Bom. H. C. P. J. for 1879, p. 2; Nithokissoree v. Jogindra, L. R.
5 I. A. 66.
iy) This is recognised generally by the customary law of castes, as in
Borradaile, C. Rules, MS. G. Sheet 32.
(z) Pajerav v. Jahagirdar, I. L. R. 11 Bom. 628.
(a) Musst. Duloon Koonwur 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 Moyee Debai, 8 C. W. R. 40 C. R.
(6) Ram Kullee Koer v. The Court of Wards, 18 C. W. R. 473; Nubo Gopal
Roy V. Sreemutty Amrit Moyee Dossee, 24 C. W. R. 428 ; Narbadabai ▼.
Mahadev Narayan, I. L. R. 5 Bom. 99. The successor of a zamindar, it was
said, might readjust the terms of the grant made for maintenance to his
predecessor's mother : Bhavanamma v. Ramasami, I. L. R. 4 Mad. 193;
Rangubai v. Ramchandra, I. L. R. 36 Bom. 383; Vishnu v. Manjamma,.
I. L. R. 9 Bom. 108.
254 HINDU LAW. [book I.
held (c), and refused where the widow has chosen to live apart
without good cause and without asserting her right (d). In deter-
mining the amount to be awarded, besides the value of the
husband's estate, the position and status of the deceased husband
and of the widow must be considered (e). A bequest of jewellery
clothes, etc., to a wife or a daughter as stridhan will not affect
her right to proper maintenance (/). She cannot be deprived of
maintenance even when she has surrendered this right for valu-
able consideration (g). These decisions are obviously incon-
sistent 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 maintenance has been attributed to a kind of identity
with her husband in proprietary right, but then her right is quite
subordinate (h). She cannot deal with it nor can she effectively
release her husband and his heirs from her right to subsistence
(i) by a document executed in the husband's lifetime, though the
amount of her subsistence may thus be defined in case of a dis-
agreement in the family.
A gratuitous transfer, or one made with the intention of
defrauding the widow of her maintenance and when the transferee
has notice of the intention, will not defeat her rights (fe), except
when it has been made by a deed or a decree (I) ; nor will a devise
(c) See Jadumani Dossee's Case, supra; Raja Pirthee Singh v. Ranee Raj
Kooer, 12 Ben. L. E., at p. 248; Narayanrao v. Ramabai, I. L. K. 3 Bom.
416; S. C. L. E. 6 I. A. 114; Venkopadhyaya v. Kavan Hengasu, 2 Mad.
H. C. E. 36; Malikarjuna v. Durga Prasad, I. L. E. 17 Mad. 362; Motilal
V. Bai Kashi, I. L. E. 17 Bom. 45; Sheshamma v. Suharayadu, I. L. E.
18 Mad. 403.
(d) Raghubans Kunwar v. Bhagwant, I. L. E. 21 All. 183. Cf. Gokibai v.
Lakhmidas, I. L. E. 14 Bom. 490.
(e) Sreemutty Nitto Kissoree Dossee v. Jogendro Nath Mullick, L. E. 5 I. A.
56; Raja Pirthee Singh v. Raj Koer, 12 Ben. L. E. 283, P. C. ; Moniram v.
Kolitany, L. E. 7 I. A. 116, 160; Rajendranath v. Puttosoondry , 6 Cal. L. E.
18; Narhar v. Koer, I. L. E. 2 All. 407.
(/) Joytara v. Ramhari, I. L. E. 10 Cal. 638.
(g) Ratonji v. Morlidhar, Bombay, April 30, 1874, per Westropp, C.J., and
Green, J., referring to Norton's Leading Cases, 31.
(h) Jamna v. Machul Sahu, I. L. E. 2 All. 316.
(t) Lakshman Ramchandra v. Satyabhamabai, I. L. E. 2 Bom. 494, 503;
Narbadabai v. Mahadev Narayan, I. L. E. 5 Bom. 99.
(k) Biharilalji v. Bai Rajbai, I. L. E. 23 Bom. 342.
m Ram Kumar v. Dai, 1. L. E. 22 All. 326.
MAINTENANCE. 255
of the estate if ancestral, for it ranks as a gratuitous disposi-
tion (m).
The maintenance of parents (n) 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 (o). A mother is entitled to main-
tenance from her son independent of his possession of paternal
property (p), which she does not forfeit for unohastity {q). An
unmarried daughter is entitled to maintenance and to her mar-
riage expenses (r) and the obligation to provide for the wedding
expenses of a deceased co-parcener's daughter extends to the
surviving member (s). In Bengal she is legally entitled to be sup-
ported by her father's successors; she may even leave the family
home without losing her right to maintenance {t). In Bai
Mangal v. Bai Rukhmmi (v) the Bombay High Court has held
that a woman has no claim at all on her father's family ; but the
Calcutta High Court has taken the view that she is so entitled
to be supported by the father's heir when her family of marriage
is in destitute circumstances (w). This appears quite conform-
able to the sound texts (x). The adult son is not usually entitled
to support by his father (y), but in extreme indigence the right
arises in favour of one who is incapable of maintaining him-
self (z). These rights cannot, however, be considered as charges
on the property held by those subject to them, though the extent
(m) Becha v. Mothina, I. L. K. 23 All. 86; Transfer of Property Act of
1882, sec. 39.
(n) A son must always support his parents, his mother even though she be
an outcaste. Baudh. Tr. 230; Gaut. Tr., p. 279.
(o) See Manu. quoted Col. Dig., Book V., Chap. VI., T. 379, Comm. ;
Srimati Hemangini Dasi v. Kedar Nath, L. E. 16 I. A. 115.
(p) Subharayana v. Suhhakka, I. L. R. 8 Mad. 236.
(g) Bai Daya v. Govindlal, I. L. R. 9 Bora. 279; Mit., Chap. II., sec. X, 15;
Baudh. II., 2, 3, 4, 6; Gautama, XXI. 15.
(r) Tulsee v. Gopalrai, I. L. R. 6 All. 632.
(s) Vaikuntam v. Kallapiram, I. L. R. 23 Mad. 512.
it) Kamini v. Chandra Pode, I. L. R. 17 Cal. 373; Siddesury v. Jonardhan,
I. L. R. 29 Cal. 557.
(v) I. L. R. 23 Bom. 291.
(w) Mokhada Dasi v. Nundu Lai, I. L. R. 28 Cal. 278.
(x) Narada, XII. 29.
iy) Premchand Pepara v. Hoolaschand Pepara, 12 C. W. R. 494.
{z) Col. Dig., Book V., Chap. I., T. 23; Smriti Chand., Chap. II., sec. I.,
para. 31 ss. ; Steele, L. C. 40, 178.
256 HINDU LAW. [book I.
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 (a) but not in
general as a charge on the property, though the father of a Sudra
may allot a share to him (b), and in the higher castes may make
a grant (c).
In families in which a rule of primogeniture prevails that is
generally in families holding estates granted for the support of
some public service of importance, the younger members are
entitled to a provision by way of appanage in 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 (d). It often happens that a family which has an estate
of this kind has also property apart from its watan or estate appro-
priated to public purposes. 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 main-
tenance 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 (e).
An allotment of land or revenue seems to continue to lineal
descendants in the branch, and on their extinction to revert (/).
But sometimes it is absolute (g).
(a) Rahi v. Govind, I. L. K. 1 Bom. 97; Sri Gajapathi Radhik v. Sri
Gajapathi Nilamani, 13 M. I. A., at p. 506; Roshan v. Balwant, L. R. 27 I. A.
51; Rajah Parichah v. Zalim Singh, L. R. 4 I. A. 159.
(6) Col. in 2 Str. H. L. 68. See below, Digest of Vyavasthas, Chap. VI.,
sec. 2, Q. 2, Rem. ; Inderum v. Ramasawmy , 13 M. I. A. 141.
(c) Raja Parichab v. Zalim Singh, L. R. 4 I. A. 159.
id) Steele, L. C. 229; Shidhojirav v. Naikojirav, 10 B. H. C. R. 228;
Narsinh Khanderav v. Yadaorav, Bom. H. C. P. J. 1882, p. 345; Chowdhr'if
HureehuT Pershad Doss v. Gocoolanund Doss, 17 C. W. R. 129, C. R. ; comp.
Imperial Gazetteer of India, Art. Rajputana, vol. YII., p. 620.
(e) See Sleeman, Journey through Oude, vol. I., pp. 169, 173; above, p. 235 r
and Savitriava v. Anandrao, 12 Bom. H. C. R. 224.
(/) Raja Woodoyaditto Deb v. Mfukoond Narain, 22 C. W. R. 225;
Ekradeshwar Singh v. Bahuasin, L. R. 41 I. A. 275.
\g) Salur Zamindar v. Pedda Pakir Raju, I. L. R. 4 Mad, 371.
woman's property. 257
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 estabhshed in
the course of the trial (h).
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, " would pass a decree fixing a grant
of maintenance in perpetuity " (i).
XI.— ON STEIDHANA OE WOMAN'S PEOPEETY.
The simple etymology of the word '' Stridhana," " woman's
property," affords little or no guidance towards determining its
exact comprehension. The principal divergencies of view indeed
amongst the Hindu commentators may perhaps be ascribed to
their efforts 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 (k).
(h) Rakhmabai v. Radhahai, 5 Bom. H. C. K. 193, A. C. J. ; Razabai v.
Sadu Bhavani, 8 Bom. H. C. E. 99, A. C. J.; Shidhojirav v. Naikojirav,
10 Bom. H. C. R. 228, 234.
^ (i) Narsinh Khanderav v. Yadavrav, Bom. H. C. P. J. 1882, p. 345.
(k) The principles of interpretation professedly followed by the Hindu
lawyers are closely connected with their philosophical systems. See above,
pp. 14, 16; Col. Essays, vol. II., page 239. In practice, "the interpretations
of Indian commentators, even if traditional, are chiefly grammatical
and etymological, explaining 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 very 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 rules of construction are identical with those
of the 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 experi-
ence. See Vijnanesvara 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," sugges-
tions of class, see Burnell's Introduction to Varadraja's Vyavahara-Nimaya,
p. xiii. The Vedic Commentator Vallabha propounds the perfectly correct
principle : " A vedic text cannot be interpreted by itiself : its context must be
considered and the interpretation must harmonize with other texts of the Veda
bearing on the same subject." See the Mimansadarsana, p. 371.
H.L. 17
258 HINDU LAW. [BOOK 1.
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 com-
petencies of the woman, as compared with the man, in transac-
tions concerning things her ownership of which is recognised.
(3) A special course of devolution, on 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 Stridhana; (2) the woman's unlimited right to
deal with Saudayakam, coupled with the restrictions imposed
by some lawyers on her dealings with immovable property; and
(3) the rule, referred to by Ellis (/), that " sons shall succeed to
the father, and daughters to the mother." Jimutavahana (m)
defines Stridhana as that which a woman may alien or use inde-
pendently of her husband (n). Vijnanesvara defines it as pro-
perty which a woman may have acquired by any of the ordinary
modes. What property she is capable of owning, if there be any
discrimination between this and the property of males, is not a
point embraced within either definition, though if any difference
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 established. Nila-
kantha, in the Vyavahara Mayukha (o), does attempt to define
Stridhana by an enumeration of its several constituents; but
accepting the word ' other ' (p), in a text of Yajnavalkya, as
allowing an indefinite extension of the objects of woman's owner-
ship ; 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 residual rule, which he (q) draws from
another passage of Yajnavalkya, and which brings the inheri-
tance to all other kinds of Stridhana under the rules applicable to
a male's estate.
(l) 2 Str. H. L. 405; see Col. Dig., Book V., Chap. IX., sec. 1, T. 461; and
Narada, Vivadapada, Chap. XIII. 7, 2, Transl., p. 94.
(m) Dayabhaga, Chap. IV., sec. 1, p. 18; Stokes's H. L. B. 240.
in) Col. big., Book V., T. 470.
(o) Chap. IV., sec. 10; Stokes's H. L. B. 98.
(p) " Adhivedanika adyam " = " a gift on supersession and so on," Yajn. II.
143, Stenzler.
(q) See para. 26; Stokes's H. L. B. 105.
woman's property. 259
The notion set forth by Apastamba (r), 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 something like a gradual
development of the recognised 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 grow-
ing predominance of personal regard towards wives and daughters
over the harsher regulations of the earlier Brahmanical law.
Baudhayana indeed (s) provides only for the succession, in the
case of woman's property, of daughters to their mother's orna-
ments, consistently with his rule that women are excluded
generally from inheritance. In Vasishtha (t), daughters are
admitted to divide the nuptial presents of their mother. Manu
enumerates (v) [1] gifts at the bridal altar, [2] in the bridal
procession, [3] as a token of affection, 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 subse-
quent. The gift subsequent [by parents and relatives] may be
considered as included in Manu's '* pritidatta " or gift as a token
of affection (w), and then the real additions are the son's gift,
the fee (sulka), and the gift on supersession through the
husband's marrying another wife (Adhivedanika). Narada, who
presents some indications, according to Dr. Jolly, of modem
influences, merely repeats the rule of Manvi (x), with a substitu-
tion of a gift from the husband in place of the " gift as a token
of affection," which might be taken more extensively (y).
Devala goes much further. He says that a gift to a woman for
her maintenance, her fee (sulka), and her gains (labha) shall be
(r) See Prasna II., Patala. 6, Kan. 14, SI. 9.
is) Prasna II., Kan. II. 27.
(t) Chap. XVII. 24.
{v) Chap. IX., SI. 194.
(ic) See Col. Dig., Book V., Chap. IX., T. 465, 468, Comm.
ix) See Narada, Yivadapada, Part II., Chap. XIII. 8, TransL, p. 95.
(?/) See Mit., Chap. 11., sec. 11, p. 5; Stokes's H. L. B. 459; Col. Dig ,
Book v., Chap. IX., T. 462, Conim.
260 HINDU LAW. [BOOK I.
her separate property or Stridhana (z). The Viramitrodaya
limits the lahha to " gains received in honour of Gauri and other
deities," but this restriction seems to be arbitrary (a).
Lastly, comes the passage of Yajnavalkya (II., 144) quoted by
Mitramisra in the Viramitrodaya. As quoted by Jagannatha and
by Jimutavahana (b), the passage seems not to have the word
" Adyam," on which Vijnanesvara in a great measure builds his
construction (c). This is in itself vague, since the words " and
the rest " or " the like ' ' may be translated by reference to the
preceding enumeration so as to extend only to property acquired
in a way similar to those specified (d). The Smriti Chandrika
adopts the reading " Adyam " (c), yet in the section on Strid-
hana makes no mention of property inherited by women, whence
the translator of that work (/) and the High Court of Madras
have concluded that inherited property is not Stridhana. Yet a
widow according to the same authority takes the property of her
deceased husband in a divided family (g), and a daughter on
failure of the widow succeeds as a dayadi or sharer of the inheri-
tance (h). The Mitakshara, an earlier work, but under the influ-
ence of more advanced views, or as an easier solution of the
questions arising on Yajnavalkya 's text, takes "Adyam" as
meaning " any other separate acquisition," and indicates, by
enumerating " inheritance, purchase, partition, seizure, or
finding (t), that a woman may acquire property in precisely the
(z) See the Viramitrodaya on Stridhana, and Col. Dig., Book V., Chap, IX.,
T. 478.
(a) See the Smriti Chandrika, Chap. IX., sec. 2, p. 16.
(b) See also Col. Dig., Book V., Chap. IX., T. 463; Dayabhaga, Chap. IV.,
sec. 1, para. 13; Stokes's H. L. B. 239; Mit., Chap. II., sec. 11, para. 2, note;
Stokes's H. L. B. 458; Smriti Chandrika, Chap. IX., sec. 1, para. 3, note (2).
(c) Stenzler, Yajn. 143, translates this " und ahnliches."
(d) See the Madhaviya, p. 41.
ie) Chap. IX., sec. 1, para. 3.
(/) Translation, p. 110, note (1).
ig) Smriti Chandrika, Chap. XI., sec. 1, para. 24.
(h) Ibid., sec. 2, p. 9; sec. 4, p. 19.
(t) Mit., Chap. II., sec. 11, para. 2; Stokes's H. L. B. 458. By adi ( = and
the rest) Vijnanesvara must have known that the passage quoted by him from
Yajnavalkya would remind his readers of the instances of female inheritance
which he had already given (see Stokes's 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 had a sacred authority, and adopted a generalization that embraced
them all. This was an application of the received principle that where different
woman's property. 261
same ways as a man (k). As to inheritance from her husband,
Vijnanesvara supports the complete right of the widow by refer-
ence to Brihaspati's text, in her favour (I), without the exception
contained in another passage of the same Smriti, excluding her
from succession to Nibandha or fixed property (w). The daughter
too inherits from her father, and thus inheriting becomes com-
plete owner, as when she takes her one-fourth share in a parti-
tion (n). See Digest of Vyavasthas Chap. 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 weak-
ness had a claim to be protected and maintained by their male
relatives in their family of marriage (o), or of birth (p), were not
likely to excite the commiseration out of which might spring the
moral and eventually the legal recognition of their right to take
the estate dedicated equally to the celebration of sacrifices (q)
to the dead as to the support of the living members of the
family. Such a recognition was wholly opposed to the earher
objects are named as of a particular class by different Smritis, all are to be
included in it in order to preserve consistency (ekavakyata). Inheritance he
specifies, and names it first; the comprehensive final term shows that it is not
used in any restricted sense. Such words as adi are constantly used in the
Smritis which were learned by heart to suggest a statement or a class by a
single term. Vijnanesvara, commenting on Yajnavalkya's smriti, interprets
the other smritis by means of that, and of Gautama's, which also
(Chap. XXVIII. 24) gives but a single general rule for the descent of Stridhana
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
Yajnavalkya and Gautama by them, but without any precise general agreement
;is to details.
(A:) Ibid., Chap. I., sec. 1, para. 8; Stokes's H. L. B. 366.
(7) Mit., Chap. II., sec. 1, paras. 6, 30, 31, 39; Stokes's H. L. B. 428-439.
(m) See Smriti Chandrika, Chap. XI., sec. 1, para. 23; Mit., Chap. II.,
sec. 2, para. 1; Stokes's H. L. B. 440. This incapacity seems to be still
recognised in the Sialkot district of the Panjab. See Panj. Cust. Law, II. 210.
in) Ibid., Chap. I., sec. 1, paras. 3, 8; Stokes's H. L. B. 365, 366; sec. 7,
para. 14; Stokes's H. L. B. 401.
(o) See Vyasa quoted Varadraja, p. 39, and the Comment, p. 42; Vivada
Chintamani, p. 261, 262; above, p. 245 ss.
(p) See Narada, Pt. II., Chap. XIII., SI. 28; above, p. 239.
iq) Manu. IX. 142; Col. Dig., Book V., T. 413, 484, Comm. ; and compare
Coulanges La Cite Antique, Book II., Chap. VII.
262 HINDU LAW. [BOOK I.
ideas as to the ownership of land. Yajnavalkya himself regarded
the inheritance as absolutely impartible and inalienable. Usanas
says that such property is indivisible " among kinsmen even to
the thousandth degree," and Prajapati is to the same effect (?').
Under such a law there would be no immovable property for the
widow or the daughter to take on the decease of the husband ol*
father, and Brihaspati says (s) distinctly that a widow shall take
her husband's wealth "with the exception of fixed property,"
as, " even if virtuous, and though partition has been made, a
woman is not fit to enjoy fixed property." In this latter passage
partition of the immovable inheritance is as elsewhere in the
same Smriti recognised, but the older note of exclusion of
females as owners is still retained. Katyayana, fully recognising
partition, yet declares that immovable property is not to be given
to a woman (t) ; and Vyasa says that the husband even is not
to make her a present of more than a limited amount, appar-
ently out of the movable wealth (v). So jealous was the Brah-
manical law of any impairment of the family estate. The wife
being, along with the son and the slave, in this ancient consti-
tution of Hindu Society, " Nirdhana " or without capacity for
property (w), and her competence in that respect having been
extended by steps, which seem to have been always jealously
watched and restricted, the rather sudden and indefinite expan-
sion, which the Mitakshara supposes Yajnavalkya to have given
to it seems opposed to all probability. Apart from Vijnanesvara's
authority we should rather construe the words " and the rest "
by reference to the context, and explain them as meaning " other
kinds sanctioned by express scripture or by custom that may be
(r) Smriti Chan. loc. cit., p. 44, 46.
(s) Ibid., Chap. XI., sec. 1, para. 23.
it) Vyav. May., Chap. IV., sec. 10, para. 5; Stokes'^ H. L. B. 99.
(v) Vyav. May. loc. cit.; Dayabhaga, Chap. IV., sec. 1, para. 10; Stokes's
H. L. B. 238. Compare Coulanges, La Cite Antique, Book II., Chap. VI.
(w) See Manu. and Narada as quoted below. The Smriti Chandrika tries to
explain away " Nirdhana " as incompetent for transactions, not as incapable
of holding property. See Transl., Chap. IX. In China all property owned or
inherited by a wife passes to the husband in consequence of the potestas with
which he is invested, as under the earlier Roman Law. See Journ. of N. China
Br. of the R. A. Society, Part XIII., p. 112. Women were regarded by the
Teutonic laws as necessarily dependent, and 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 Rome, vol. I.
woman's property. • 263
referred to it." That Vijnanesvara himself accepted the text
in its widest signification cannot reasonably be doubted (x).
It is this construction which underlies his whole subsequent
treatment of the subject of inheritance. This is the construction
which the Viramitrodaya (y) adopts and which Jimutavahana
understands while he combats it (z).
By what precise course the Hindu woman, from the condition
of complete dependence, from being Nirdhana, rose in the estima-
tion of the Brahman 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 Stridhan had a pre-historic origin in the Bride-
Price, its growth and decay become more intelligible. 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 doctrine of certain schools ; but still there is nothing
(x) A conclusive confirmation of this being the sense of the Mitakshara may
be drawn from an exceptional case. Inheritance is by Vijnanesvara named
as first amongst the sources of ownership (see Mit., Chap. I., sec. I., para. 12).
There is a passage of Baudhayana 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. Vijnanesvara, amongst the rules on Strid-
hana, says that under it the brothers take the property "inherited by her."
Thus the inheritance constitutes Stridhana, and the heirs of the woman, not
heirs of the former owner, take it on her decease.
Similarly in the Vyavahara Mayukha, Chap. IV. sec. 10, para. 26, pro-
perty taken by inheritance is distinctly ranked as Stridhana by the distinc-
tion drawn between it and Stridhana of the less important specified kinds to
special texts apply.
iy) Section 1, p. 4 ff, below.
(z) Dayabhaga, Chap. IV. sec. 2, p. 27 (Stokes's H. L. B. 250); sec. 3,
p. 4 (ibid. 251), compared with Mit. Chap. II. sec. 11, p. 11 (ibid. 460). So
also the Smriti Chandrika, which, though it does not allow inheritance as a
source of stridhana (see Transl. Chap. IX. sec. I.), yet admits that the
Mitakshara does so (Transl. Chap. IV. para. 10). The Vivada Chintamani
and the Sarasvati Vilasa follow the Mitakshara. See below.
(a) The "Early History of Institutions," pages 324, 333.
264 • HINDU LAW. [BOOK 1.
contrary 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 Koman Law
in the proprietary enfranchisement of women, and what are the
causes of the strong hostility of the great majority of Hindu
lawyers to the text of the Mitakshara, 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
authorities."
And again (b) : —
On the whole the successive generations of Hindu lawyers
show an increasing hostility to the institution of the Stridhan,
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 Stridhan, the view of it as emphatically ' woman's property '
is carried out 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 debarred
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 exist-ed amongst the
Hindus, and for a time amongst all classes, seems almost certain.
Manu recognises it (Chap. 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. Apas-
tamba says (c) : —
'' It is declared in the Veda that at the time of marriage a gift
for (the fulfilrnent of) his wishes should be made (by the bride-
(h) Op. cit. p. 333.
(c) Prasna II. Patala 6, Kan. 13, para. 12; see also Manu III. 51; and
Vasishtha I. 36, 37.
woman's property. 265
groom) 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 rites) the word ' sale,' (which
occurs in those Smritis is only used as) a metaphorical expres-
sion; for the union (of the husband and wife) is effected 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 Brahmanical community (d). It had then become
peculiar to, and therefore distinctive of, the lower castes, Vaisyas
and Sudras (e), though in the approved Arsha form of marriage,
a gift of a bull and a cow, to the bride's father was still pre-
scribed (/), a remnant, probably of a practice amongst a
pastoral people, of compensating the family which lost the
daughter in the most usual and valuable form of property then
recognised. The formula prescribing the gift survived the circum-
stances in which it originated, but still exacted observance
through the associations with which it was connected (g).
Manu (h), who condemns the Asura form of marriage, recognises
it as still in vogue, and as distinguished by a consent gained by
a liberal gift on the part of the bridegroom to the bride's father
(d) See Baudhayana, Transl. p. 208. ^
(e) Apastainba, Prasna II. Patala 5, Kandika 12, para. 1; Gaut. TV. 11;
Yajnavalkya I. 58, 61; Col. Dig. Book. V. T. 499. At 2 Borr. R. 739, there
is a case, Massamat Rulivat v. Madhowjee Panachund , 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 common in Gujarat even amongst the classes which publicly condemn
the practice.
(/) Apast. Pras. II. Pat. 5, Kand. 11, para. 18; Manu III. 53;
Vasishtha I. 32.
ig) That kine were a common form of gift in the Vedic period, see 5 Muir's
Sanskrit Texts, 467. In the Huzara district it is noted that the bridegroom
gives his bride a milch cow and some jewels as a premium when their cohabi-
tation 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 bride at betrothal, but usually to the father,
who appropriates it. Panj. Cust. Law, II. 220. On the important place of
cows in the wealth of a family amongst the ancient Irish, see O'Curry's
Lect. I. 172, &c.
(h) Chap. III., paras. 25, 31, 51.
266 HINDU LAW. [BOOK I,
and the bride herself (i). This gift is not, however, by Manu
identified with that " gift before the nuptial fire " (k), which
may accompany the most approved marriages. Vyasa (I) defines
the Sulka as the bribe given to the bride to induce her to go to
her husband's house. Vijnanesvara (m), commenting on Yajna-
valkya 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 (n)
distinguishes the Sulka from the gift at the nuptial fire. Katya-
yana distinguishes the nuptial gift (o) from the Sulka, which
latter he defines as " what is received as the price of household
utensils, of beasts of burthen, of milch cattle (p), or ornaments
of dress, or for works" (q). This definition, though passed by
in silence by the Mitakshara, is adopted by the Vyavahara
Mayukha (r), by the Vivada Chintamani (s), and with a some-
what different reading is adopted by Jimutavahana in the
Dayabhaga (t). This writer insists that the gift of the ordinary
Sulka may accompany a marriage in any form (v), and is to be
carefully distinguished from the Sulka presented 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 (w).
(i) So the Eatnakara. See the Smriti Chandrika, Chap. IX., sec. 1,
para. 4, note.
(k) Manu IX. 194; III. 54.
(Z) Dayabhaga, Chap. IV., sec. 3, para. 21; Stokes's H. L. B. 255.
(m) Mit. Chap. II., sec. 11, para. 6; Stokes's H. L. B. 459.
(n) Chap. XVII., 18.
(o) Mit. Chap. II., sec. 11, para. 5; Stokes's H. L. B. 459.
(p) De Gubernatis, Storia Comparata Degli Usi Nuziali, Book I.,
Chap. XV., p. 95, points to " il dono d'una vacca che lo sposo Indiano faceva
alia sposa e al prete maestro." Compare Yajn. I. 109; Manu XI., 40.
(q) Smriti Chandrika, Chap. IX., sec. 10, para. 5; Madhaviya, p. 41.
(r) Chap. IV., sec. 10, para. 3; Madhaviya, p. 41.
(s) p. 228.
(t) Chap. IV., sec. 3, para. 19; Stokes's H. L. B. 254. See also Col. Dig.
Book V. T. 468; Varadaraja, p. 46.
(v) Dayabhaga, he. cit. para. 22 ff ; Stokes's H. L. B. 255.
(w) 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. Lee. VII. The
co-emptio of the Koman law was in form a purchase of the bride. Gains 1. 113.
To buy a wife remained in the Middle Ages the common expression for an
woman's property, 26f7
Varadraja, page 48, admitting the two kinds of Sulka, says
that the " Bride-Price " goes to the mother or the brother, while
the gift made for the purchase of ornaments and furniture reverts
on the woman's death to its giver. Mitramisra says there is a
Sulka given in the form of ornaments for the bride to her parents,
and another as a present to her on her going to her husband's
house (x).
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 household goods-
and ornaments, shows that at a very early date the word had
engagement to marry. No bargain being complete without a change of posses-
sion, the suitor paid money for the mundium or guardianship and control of
his intended bride, or earnest, on account of it, and this payment completed
the marriage contract. (This payment 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 praesenti, which may be compared with the Hindu Gandharva 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, Chap. V.; Narada II., 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 Allemanni, could
reclaim her with damages, and if meanwhile she died leaving children, these
ranked as illegitimate. Lab. op. cit. 393. The purchase money becoming by
degrees the dos legitima or marriage gift of the bride herself, was subject to
the husband's mundium and fell to him on his wife's predecease; 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 bridegroom 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 morgengahe, 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 co-emtio,
but is a serious and expensive transaction. The wife thus passes into her
husband's agnatic connexion and forsakes her own.
(x) See Viramit. Tr. p. 223.
268 HINDU LAW. [BOOK I.
Jest the definite sense of " Bride-Price," if it had ever been con-
fined to it. Stenzler translates 8ulka as " Morgengahe " [y),
.but this gift on the morning after the completed nuptials, an
important institution amongst many nations {z), 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 law-givers, the relations of the spouses are to
i)e governed {a). All the Smritis which deal with the subject
agree that this Sulka goes on the woman's death childless to her
brothers or her parents (b), for which no good reason could easily
.be found, unless the more primitive idea, attached to the word,
Jbad been that which it really expressed during the formation of
the law. All agree too that the property of a woman married by
{y) Yajnavalkya, II. 144.
{z) In Ireland the Coibche { = morgengahe) gradually absorbed the bride-
price as Christianity softened the manners of the people, and then a part of
•the gift (called Tindscra) was handed to the father as a consideration for his
resigning at once the person and guardianship of his daughter. See 0 'Curry,
Lee. I. 174 ss. See De Gubernatis Storia Comparata, Lib. III. Chap. VII..
Ancient Laws of Wales, p. 47, §§ 62, 63. A practice prevails amongst
some castes in Western India which may possibly have originated in the same
way as the " Morgengahe." 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 puts a gold ring on
-the bride's finger, and ties in her sari 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 declaration " with all my worldly goods I thee
endow " (Bl. by Kerr, vol. II. p. 114), in the English marriage service is
curious 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 pr«?miMm pulchritudinis . 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 love 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 settlement as morgen-
gahe 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 morgengahe, the wife, if left a
-.widow, could claim generally one-third of all acquired lands. The dower and
morgengahe thus became confused, and in the English law were not distin-
guished. See Digest of Vyavasthas, Chap. II., sec. 6 A. Q. 7.
(b) See the Transl. of Gautama XXVIII. 23; Katyayana, quoted Daya-
'bhaga. Chap. IV., sec. 3, para. 12; Stokes's H. L. B. 253; Yajnavalkya, ihid.
g)aras. 10, 26; Stokes's H. L. B. 253, 256.
woman's property. 269f
the Asura rite goes to her own family (c) on her death without
children. According to most of the commentators the same rule-
is prescribed by Yajnavalkya as to a gift by her own kindred (d).
Vijnanesvara himself, while he converts the rule in favour of the-
woman's kinsmen generally into one favouring her husband's
kinsmen (e), 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 (/)..
The Vyavahara Mayukha (g), adopting the Mitakshara's doctrine
as to Stridhana, defined by special texts, admits the brothers'^
rights to the Sulka, 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 (h) still subsists as an essential part of the
marriage ceremony amongst several of the uncivilised tribes of
India (i). The resistance of the bride's relatives was an
(c) Dayabhaga, Chap. IV., sec. 2, para. 24; Stokes's H. L. B. 249; Mit,
Chap. II., sec. 11, para. 11; Stokes's H. L. B. 460; Manu IX. 197; Yajna-
valkya, II. 145.
id) Dayabhaga, Chap. IV., sec. 3, paras. 10, 29; Stokes's H. L. B. 253, 257;-
Col. Dig., Book V. T. 603 ff. The Teutonic Codes provided for a gift by
way of advancement on the part of a father or brother at a maiden's marriage.
This, which the Lombard law called faderfium, was inherited by the bride's-
children, in default of whom it returned to her family. Lab. op. cit 409;
Gans, Erbrecht, III. 176.
(e) Mit. Chap. II., sec. 11, paras. 9, 14; Stokes's H. L. B. 460; Col. Dig.,.
Book V. T. 508, 509, 512, Comm.
(/) So the Smriti Chandrika, Chap. IX., sec. 3, paras. 27, 29, 33.
(g) Chap. IV., sec. 10, paras. 27, 32; Stokes's H. L. B. 105, 106.
(h) Manu III. 26, 33. An allusion to it seems to be made in the passage'
from the Eig. Veda X., 27, quoted in Muir's Sanskrit Texts, vol. V., p. 458.
The authority exercised by brothers is alluded to, ihid. This in Vasishtha,
I. 34, is called the Kshatra rite.
(t) 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; Eowney, Wild Tribes of India, p. 15 (Gonds) ; p. 37 (Bhils) ; p. 46
(Kathis, amongst whom as amongst the Pahanas and others the niyoga or
levirate prevails); p. 68 (Kholls) ; p. 76 (Santhals, who before a maid's mar-
riage 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 of the wife's mother) ; p. 177 (Cacharis).
270 HINDU LAW. [BOOK 1.
assertion, until it became a mock assertion, of rights {k), 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 famihes are formed,
as in India they seem to have been at a very early period (I), and
the legend of Draupadi can be looked on as remote from national
experience. This advance is, in some instances, accompanied
by a development of ancestor worship, which gives a sacred
character to the head of the family (m), and the father or eldest
brother is found exercising despotic power over its other members.
He will not part with his daughter or sister except for a
reward (n). Natural affection leads to his endowing the bride
(k) See, however, McLennan 's Studies in Ancient History, p. 425 ff.
(l) 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
5 Muir's Sanskrit Texts, p. 289. In some tribes, as amongst the Jats of
liohtak, 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. 65.
(m) See Muir's Sanskrit Texts, vol. V., p. 295; Tylor's Primitive Culture,
vol. II., 103, 109; Coulanges la Cite Antique, Book I., Chap. II.; Book II.,
Chap. VIII. The dependence of sons under the early Brahraanical law may
be gathered from Manu I. 16, and Narada, Pt. I., Chap. II., para. 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., Chap. V., para. 39. In Chap. 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 Yajnavalkya III. 242, how far the patria
potestas has been pushed. See too Vasishtha, Chap. XV. A similar
superiority is assigned to the eldest brother by the Smriti cited in Col. Dig.,
Book 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 modifications introduced at a later time appear from
Kulluka's comment, and the following verses of Manu, as also from Narada,
Pt. II., Chap. XIII., para. 5; and the modern law from Jagannatha's remarks,
in Col. Dig., 1. c. The cases of Duleep Singh et al. v. Sree Kishoon Panday,
4 N. W. P. R. 83; Ajey Ram v. Girdharee et al., ibid. 110; and Musst.
Bhowna et al. v. Roop Kishore, 5 ibid, 89, may be compared with Jugdeep
Narain Singh v. Deen Dyal Lall et al., L. R. 4 I. A. 247; and Mohabeer
Pershad et al. v. Ramyad Singh et al., 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 recognised. See Vyav. May., Chap. IV., sec. 1, pp. 11, 12 (Stokes's
H. L. B. 45); Chap. IX., sec. 2, para. 2 (ibid. 133); Col. Dig., Book II.,
Chap. IV. T. 5, 7, 9, Comm. The Hindu law on this point may be compared
with the Roman law as to the patria potestas in its original and its mitigated
forms. See Bynkershoek's treatise on this subject.
(n) As to the sale of wives amongst the Kholes and other tribes, see
woman's property. 271
with some portion of the gain; it becomes a point of honour and
ostentation to do this (o), and on her death it seems reasonable
that the gift, in early times still retaining its original shape,
should return to the stock from which it proceeded (p). At a
still later point of progress the sale of women, retained by the
uncivilised tribes, comes to be looked on as an opprobrium by
those more advanced, and especially where, as amongst the
Brahmanical community, the wife has been admitted to a share
with her husband in the performance of the most sacred household
rites (q). A concurrent elevation of feeling amongst the warrior
caste brings about the Svayamvara (r), the choice of her favoured
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
Hindu epic poetry and drama could be conceived and appre-
Eowney'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 Narada, Pt. I., Chap. III., paras. 21 — 24. In his account of
the Himalyan Districts of the N. 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 Brahmanical
influence are improving in their pecuniary circumstances.
(o) In the Odyssey the eSva presented by the bridegroom are returned
with a favourite daughter. Compare Dr. Leitner's account of a Ghiljit mar-
riage, Indian Antiquary, vol. I., p. 11; and Plautus Trinummus, III. 2,
quoted in De Gubernatis, Storia Comparata, p. 106; Str. H. L. I. 37; II.
33-35; Col. Dig. Book IV. T. 175, 184; Manu VIII. 227; IX. 47, 71 72;
Jolly, Ueber die rechtliche Stellung, &c. 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. See Eig Veda, 1. 109, quoted 5 Muir's Sanskrit Text, 460;
Vedarthayatna, Book II., 737; and Comp. Col. Dig., Book V. T. 119,
Comm. The reference appears to be to a connexion formed by purchase. The
profuse expenditure at Hindu weddings thus finds a kind of warrant in the
earliest traditions of the race.
(p) It was found necessary at Athens to limit the paraphernalia which a
bride might take to her husband's house. The dowry given with her had to
be restored on her death. See Grote, Hist, of Greece, vol. III. 140.
iq) Apastamba, Pr. II. Pat. I. Kan. 1, para. 1; Pat. V. Kan. 2, para. 14;
Baudhayana, P. 2, Adh. 1, K. 2, Sutra 27; Col. Dig., Book IV. T. 414;
Book V. T. 399. Compare Max. Miiller's Hist. San. Lit., pp. 28, 205. Land
in moderate quantity is sometimes settled on a daughter for her sole and
separate use at her marriage even amongst tribes which most strictly prohibit
lands leaving the family or tribe. See Panj. Cust. Law, II. 221.
(r) See Mon. Williams, In. Wis. 438.
272 HINDU LAW. [BOOK I.
ciated (s). At this point the rules and the ceremonies which
pointed to a ruder age, would be explained away; and the recol-
lection 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 (t). The right of women to marriage gifts^
continued while the rules still retained became anomalous.
Side by side with this source of women's property, however,
there was another which has received less attention {v). The
total severance from her own family, which in a particular form
of civilisation the woman undergoes when she marries and thus
enters that of her husband, is still unknown to some Indian
tribes {w). Many traces of custom remain to show that a con-
nexion through the mother was till recently recognised, and
(s) A svayamvara seems to have been occasionally allowed even in the
Vedic times ; see 5 Muir's San. Texts, 459.
(t) See Burnell, op. cit. Introduction, p. xiv.
(o) Amongst the Anglo-Saxons a wife did not enter her husband's
" maegth " or family by marriage. Her own kindred remained responsible
for producing her or making compensation in the event of her committing a
crime. Schmid, Die Gesetze-der Angl. Sax., cited Taswell-Langmead, Const.
Hist., p. 35. The dotal marriage or matrimonium sine conventione of the
Bomans was attended with a similar effect as to property. The bride remained
a member of her father's family. See Tom. and Lem. Gaius, p. 102 ss ;
Smith's Die. Ant., Art. Matrimonium, Divortium.
{w) " In Spiti, if a man wishes to divorce his wife without her consent he
must give her all she brought with her, and a field or two besides by way of
maintenance. On the other hand if a wife insists on leaving her husband she
cannot be prevented," but in this case or in case of her elopement he may
retain her jewels. Panj. Cust. Law, II. 192. As to the Nayars, see
Buchanan's Mysore, vol. II. pp. 418, 513. The polyandry formerly universal
amongst this tribe has almost disappeared under the British rule. In some
families it has taken the intermediate form of a limitation to biandry, not
more than two husbands being allowed. In Cochin and Travancore the older
institution subsists in its loosest form. A quasi-matrimonial ceremony having
been celebrated by a Brahman or Kshatriya the woman thenceforward
associates with anyone she pleases. Where the family is one of position the
woman does not leave her own tarwad, and her husband has to visit her at
her family residence. Amongst the Thiyens there is a fraternal partnership
in the wife formally married to one of the brothers. On this one's death the
other marries the widow in an undivided family and all the children inherit
in common. A separated brother has not the same privilege or obligation.
There is a class of Nambudri Brahmans in N. Malabar who follow the regular
law of marriage but the Nayar rule of inheritance. (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 Brahmans with indissoluble mar-
woman's property. 278
indeed still is in some places recognised, as superior or as running
parallel to that through the father, and as in some degree regu-
lating the devolution of property (x). The custom of patnibhag
still prevailing in Madras and in some parts of the Punjab (y) is
traceable to this source. In Bengal Jimutavahana founds the
law of devolution on Visvarupa's statement that all the property
of a woman dying childless goes to her brother (z). 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 which
it was severed, may be referred to this principle. So as to the
effect of Asura marriages and as to succession amongst Sudras;
so as to pritidatta, the Sm. Chan, quoting Katyayana. Even in
Manu, the text (IX. 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 property," and on a mother's death all
her sons and daughters are to share her property equally (IX.
riage and known paternity should adopt the Nayar law of succession). The
manager of a Nayar tarwad tries to get his own children married to his
sister's in order to benefit by the same estate as himself. Marriages between
i 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
Canara 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 parti-
cular man, his heritage 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
I 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, &c.
The conflict between paternal affection and duty to the tarwad in Malabar is
referred to in Tod v. P. P. Kunhamud Hajee, I. L. K. 3 Mad. at p. 175,
where, too, it is recognised that estates and acquisitions belong wholly to the
tarwad or female gens, though the manager may grant leases and the mort-
gages called Kanam and Otti not subject to foreclosure. See Eev. and Jud.
Selections, vol. I., p. 891; Fifth Eep. App. 23, p. 799; Edathil Itti v.
Kopashon Nayar, 1 M. H. C. E. 122.
(x) See Eowney, Wild Tribes of India, p. 147, as to the Koches.
iy) Infra, Book II., Chap. II., sec. 1, Q. 6; Tupper, Panj. Cust. Law, vol.1.,
p. 72.
(z) Dayabhaga, Chap. IV., sec. 3, p. 13 (Stokes's H. L. B. 254).
H.L. 18
274 HINDU LAW. [BOOK I,
192). Yajnavalkya (II. 117) says the daughters, and failing
them the issue (a). In the Mitakshara (Chap. II. sec. 4, p. 2;
Stokes's H.L. B. 444) a passage is cited from Dharesvara, which,
failing the mother, assigns the son's heritage to his grandmothei
in preference to his 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
generally 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 recognised. 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 Brihaspati's text (d),
which says that " the mother's sister . . . [is] declared equal
to a mother," to the case of an Asura marriage attended with
the consequence of the succession to the wife, not of her
husband and his family, but of her own parents and their
family (e). And in this latter case he says, " When the mother
and father would succeed, then in their default, of the three
relatives through them the deceased woman's sister's son takes
first. In his default her brother's son takes it. In his default
the son-in-law takes it." This preference of a sister's son to a
brother's son, which is not confined by other writers to the case
of an Asura marriage (/), points probably to a time when female
(a) At Athens 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.
(6) Compare the case of the Lycians (Herod. I, 173,) and the other similar
cases referred to in L. Morgan's Ancient Society, p. 347 fF.
(c) Ex relatione, J. Jardine, Esq., late Judicial Assistant in Kattiawar, and
now Judicial Commissioner in Burmah.
(d) Col. Dig., Book V. T. 513; Vyav. May., Chap. IV., sec. 10, p. 30:
Stokes's H. L. B. 106.
(e) See Manu, IX. 197; Yajn. II. 146; Dayabhaga, Cli&p. IV., sec. 2,
p. 27; Stokes's H. L. B. 250; sec. 2, p. 6; ihid. 252.
(/) Smriti Chandrika, Chap. EX., sec. 3, p. 36; Col. Dig., Book V. T. 513;
Dayabhaga, Chap. IV., sec. 3, p. 31 (Stokes's H. L. B. 257); Vyav. May.,
Chap. IV., sec. 10, p. 30 {ihid. 106). As to the close connexion subsisting
amongst the ancient Germans between nephew and maternal uncle, see Tac.
woman's property. 275
had not yet become quite Buperseded by male gentileship. A
trace of the same state of things is to be found in Nilakantha's
preference of these collateral, and, according to modem ideas,
but slightly connected, relatives to the husband's sapindas as
heirs to a woman's paribhashika Stridhana. Amongst the Brah-
mans in the Surat district the custom as stat-ed 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 maternal aunt and her son in succession. Only on failure of
these it goes to the maternal grandfather (g). Similar rules
prevail amongst some of the lower castes, instances of which are
recorded {h).
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. Accordingly we find,
in the development of the now prevailing system, not only that
" women, sons, slaves, and attendants are dependent" (i), but
also (k) 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 P atria potestas in almost its full
development; and starting from this point some writers (0 set
de Moribuis 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 sister'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 family of the second. See Baring Gould,
Germ. Pres. and Past, Chap. III., and the authorities cited in the Appx. to
the same work. Mr. Oust 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 Garoo and Khasias, north of Assam. The
succession of the chiefs is entirely through females. See Ind. Ant. Vol. VIIL,
p. 205; also Eowney, Wild Tribes of India, p. 190. The Khasya earns his
wife by service to her father. A Garoo 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. Ih. As to the custom of
llatom ( = affiliation of a son-in-law) in Madras, see Hanumantamma v.
Rama Reddi, I. L. R. 4 Mad. 272.
ig) Borrad. C. Rules, Lith. p. 401.
(h) As in Book G. Sheet 17 of the same Collection.
(t) Narada, Pt. I. Chap. V. SI. 36.
(fc) Ibid,, Pt. II., Chap. V. SI. 39; Manu VIII. 416.
il) As Dr. Jolly, in his Essay, Ueber die rechliche Stellung der frauen bei
276 HINDU LAW. [BOOK I.
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 large ; and does not afford a sufficient source for
the peculiar and varied rules in her favour with which in historical
times it has always been blended. Amongst the polyandrous
classes indeed, who are still much more numerous in India than
is generally supposed (m), it is obvious that, as the chief con-
necting links between successive 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 Hindu law, have yet obtained a place in the Hindu com-
den alten Indern, p. 4, and Dr. A. Mayr, Das Indische Erbrecht, p. 162, " Die
Weiber waren in altester Zeit keine Kechts-subjecte."
(m) In Kamaun, the Rajputs, Brahmans, and Sudras all practise polyandry,
the brothers of a family all marrying one wife like the Pandavas. The children
are all attributed to the eldest brother alive. None of the younger brothers
are allowed to marry a separate 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.
Bhagvanlal Indraji Pandit, in Ind. Ant. March 1879, p. 88. The Khasias
usually have but one wife for a group of brothers. (Rowney, Wild Tribes of
Ind., p. 129.) Polyandry even is exceeded by the Booteah women, ibid. 142.
As to the Dutias, ibid. 151; the Meeris, ibid. 154. Amongst the Sissee Abors,
a group of brothers have a group of wives in common, ibid. 169. See as to
the mountain tribes of the Himalyan frontier, Panj. Cust. 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 (b), 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 Narada, who further
allows this connexion even with a woman who has had children, if she is
" respectable and free from lust and passion " (Narada, Pt. II. Chap. XII.
para. 80 ff). Yajnavalkya assigns the duty to any kinsman of the deceased
descended from the same stock. The male offspring of this kind of union was
variously regarded either as the son of the deceased husband only, or of both
him and the actual father. See Col. Dig., Book IV. T. 149, Comm. ; Mitak-
shara, Chap. I. sec. 11, pp. 1, 5, note; Stokes's H. L. B. 410, 412; Baudhayana,
Pr. II. Kan. 2, SI. 23; Vasishtha, Chap. XYII. 8-11, ss. ; Translation, p. 85;
Smriti Chandrika, Chap. X. That the practice, not subject apparently to
severe regulations, obtained in the Vedic period, see Rig Veda, X. 40, quoted
5 Muir's Sanskrit Texts, 459.
woman's property. 277
munity, and have brought into it notions, which, on account of
their harmonising with some natural feehng or some need of
the society, have obtained a more or less general acceptance (n).
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 (o). 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
Adhyavahanika or gift during the procession or at Dviragamana
or Gamana in Bengal or the Govma in Behar and the North-
Western Provinces (p) are probably to be referred, like the
" Sulka," to a state of things 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 capacity.
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 incap-
able of holding this, except through a capacity which Narada's
text denies. But that capacity not having been really extin-
guished in practice, the gift subsequent, Anvadheyika, from her
husband's relatives had a definite body of property, real or poten-
tial, to which it could adhere ; and the Adhivedanika or com-
(n) See Bumell's Introd. to the Madhaviya, p. 15; Introd. to Varadaraja's
l"Vyavahara Nirnaya, pp. 7, 8; Ward's Survey Account, and the Madura
[Manual quoted by Mr. Nelson in his " View of the Hindu Law, &c.,"
)p. 141, 145.
(o) Amongst the Brahmans of the Southern Maratha Country the provision
Hncludes a couch with bedding or carpet, two silver or metal plates, two
cups, &c. These are carried in procession to the bridegroom's house as an
important if not essential part of the ceremony. In Germany it may be
observed that the contribution of the bride towards the furnishing of the home
in the shape of beds, Imen, &c., becomes joint property of the spouses. Clothes
and ornaments remain as we might say the Stridhana of the bride, free from
any right of the husband. An early instance of a simple trousseau is that in
the Rig Veda, X. 85. See De Gubernatis, St. Comp., Book I., Chap. XVII.
(p) In Bengal gifts {Yautuka) are given to the bride when she goes to her
father-in-law's house for the first time. She is also given gifts at the
Gamana when she goes to his house finally on attaining the age of puberty.
In Behar and the North Western Provinces she goes to her father-in-law's
house only on coming of age, when she is given gifts at the ceremony called
the Gowna.
278 HINDU LAW. [BOOK I.
pensation for supersession, in the form of a gift to make the first
wife's position, as to paraphernalia, equal to that of the
second (q), if it was ever, as probably at first it was, a mere
pacificatory present, easily took the character of a legal obliga-
tion, when other sources of exclusive female property were
familiar to the people.
It seems at least probable then that the woman's distinctive
ownership of property was not merely a development within the
sphere of the Brahmanical 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 Hindu literature preserves many
testimonies, that whatever may have been the strictly religious
view of women's inferiority and dependence, they in fact retained
a position of real influence and freedom down to the time when
Mohammedan ideas began to permeate the community. Vijna-
nesvara, 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 capa-
city; he looked on the union of the husband and wife as estab-
lishing 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 (r). That theory seems not to
have been adopted without some misgiving or reserve by any of
his numerous followers. Katyayana and Vyasa are quoted by
the Viramitrodaya (s) and by the Smriti Chandrika (t) to the
effect that separate property bestowed upon a woman is not to
exceed two thousand karshapanas (v), and is to exclude immov-
able property. It is there explained that as the gift might be
repeated annually so a single endowment to produce the same
amount may be given once for all even in the form of immovable
iq) Mit. Chap. II., sec. 11, paras. 33, 35; Stokes's H. L. B. 466.
(r) In this respect, as in his conception of Sapindaship as resting on
sanguinity, and in establishing property as a matter of secular, not of reH-
gious, cognisance, Vijnanesvara 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.
(.9) See below, sec. 1, para. 13.
(t) Chap. IX. sec. 1, paras. 6-11, 16. The passage of Vyasa is by Vara-
daraja (p. 34) construed as a limitation on a widow's right of inheritance.
(t?) Copper coins of small value, Viramitrodaya, Trans, p. 224.
I
WOMAN S PROPERTY.
279
property (w). The Vyavahara Mayukha repeats these rules {x),
and the further one that what the woman earns belongs to her
husband; as also those gifts, from friends other than near rela-
tives, which, if she could retain them herself, would afford a
means of withdrawing her gains from her husbands control.
Ornaments given to her for ordinary wear become her property,
but in those handed to her for use only on extraordinary occa-
sions the ownership of the nominal donors and of their families
remains (y). The Vivada Chintamani {z) follows the Mitak-
shara in laying no restriction on the woman's capacity to take
immovable property. The " labham " or gain which Devala
assigns to the woman (a) is unrecognised or cut down by all the
commentators, except Vijnanesvara, who does not himself
expressly cite this authority.
A daughter, unmarried, or married, may take immovable pro-
perty by gift, from her parents, according to the Dayabhaga (b),
which imposes no restriction on the amount, but Katyayana
there quoted is understood, as we have seen, by other commen-
tators, as confining what may be given to married women within
narrow limits (c). Even that restriction would be disregarded in
the case of property acquired by the donor (d), and all gifts by
parents proceeding from natural affection are to be respected (e),
unless they are of such a character as to be a fraud on other
members of the family (/). As to property which is free from
(w) Instances are given in the Panj. Cust. Law, vol. II. of the gradual
recognition of small gifts of land to daughters amongst the tribes which gener-
ally restrict land-ownership to males. Compare the Smriti Chandrika, Transl.
Chap. IX., sec. I., para. 10.
(x) Chap. IV., sec. 10, paras. 6, 6, 7; Stokes's H. L. B. 99, 100.
iy) 2 Str. H. L. 55, 241, 370. See below as to such gifts from a husband;
Ashabai v. Haji Tyeb, I. L. E. 9 Bom. 118; Gojabai v. Bhosle, I. L. E.
17 Bom. 114.
iz) pp. 259, 260.
(a) See above and Viram. Transl. p. 226.
(b) Chap. IV., sec. 3, paras. 12, 15, 29; Stokes's H. L. B. 253, 264, 257.
See also Col. Dig., Book V. T. 354.
(c) So also the Madhaviya, p. 41.
(d) Supra, page 208; 2 Str. H. L. 6, 9, 10; Muttayana Chetti v. Sivagiri
Zamindar, I. L. E. 3 Mad. at p. 378.
(e) Col. Dig., Book II., Chap. IV., sec. 2, T. 49, 50; Narada, Pt. II.,
Chap. IV. SI. 7; Vyav. May., Chap. IV., sec. 7, para. 11; Stokes's H. L. B.
76; Mit. Chap. I., sec. 6, para. 13, 16 (ibid. 396, 397).
(/) Narada, Pt. II., Chap. IV., SI. 4; Vyav. May., Chap. IV., sec. 10, p. 6;
Stokes's H. L. B. 99; Viramitr., sec. 1, para. 6, infra; Sivarananja Perumal
280 HINDU LAW. [BOOK I.
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 this respect has become as liberal as the
Mitakshara would make it (g). A devise is put practically on
the same footing as a gift inter vivos (h).
A gift even of immovables by a husband to his future wife vests
in her absolute estate of inheritance, and in the event of her
dying childless the co- widow is entitled to succeed to her in pre-
ference to her husband's brother or nephew (i); but it appears
that according to the Mithila School of the Hindu law her
stridhan would have gone to her husband's brother's son (k).
A wife may take gifts from her husband of any kind of pro-
perty and to any amount, subject only to the rights which others
may have in what is thus given to her (I).
The commentators (m), who carefully provide against her
alienation of immovable property thus acquired, thereby acknow-
ledge at least with the Mitakshara her competence to receive it.
The limitation imposed by Katyayana's text above quoted applies
in terms to a husband's gifts as well as to others, but where pro-
perty ranks as separate estate, no one now has a right on which
he can challenge the owner's disposal of it (n). Colebrooke
says (o) without qualification that ' ' land may be given by the
husband to his wife in Stridhan, and will be her absolute pro-
perty." The last words must, as to Bengal at least, be qualified
V. Muttu Ramalinga et al., 3 Mad. H. C. R. 75. An interdiction may be
obtained by a son or a brother against deahng with the heritage which would
deprive him of his rights. Q. 1735, MS.; Viram. Tr. p. 74; Mit. Chap. VI.,
sec. VI., p. 10.
(g) See Col. Dig., Book V. T. 482, Comm., quoting Chandesvar.
(h) See above, p. 181, 212 ss. ; Judoo Nath Sircar v. Bussant Coomar Roy.
19 C. W. E. 264 ; S. C. 11 Beng. L. R. 286.
(i) Bai Kesserbai v. Morariji, I. L. R. 30 Bom. 431, P. C. ; S. C. L. E.
33 I. A. 176; Mayukha, Bai Narmada v. Bhagw antral, I. L. R. 12 Bom. 505;
Thakur Dayhee v. Bulak Ram, 11 M. I. A. 139.
(k) Bachha Jha v. Jugmon, 1. L. R. 12 Cal. 384.
(Z) See the passages referred to in notes at p. 205. As to the essentials of
the gift, see G. v. K., 2 Mor. Dig., 234; S. Pahitra Dasi et al. v. Damudar
Jana, 7 Beng. L. R. 697; Kishen Govind v. Ladlee Mohun, 2 Cal. S. D. A. R.
309. Venkatachella v. Thathammal, 4 Mad. H. C. R. 460, recognises the
competence of the husband to make a gift, while exacting delivery to complete
it.
(m) See the Smriti Chandrika, Chap. IX., sec. 2, p. 10.
in) See above, p. 206.
(o) 2 Str. H. L. 19; Bai Kesserbai v. Morariji, I. L. R. 30 Bom. 431, P. C.
woman's property. 281
by the restriction set forth in the Dayabhaga (p) against ahena-
tion of immovable property given by a husband, but as to the
wife's capacity to take such property by gift, they represent the
modem law {q). Ornaments given by the husband merely to be
worn occasionally remain his property, but otherwise they become
fully hers (r). It follows from what has been said that a member
of an undivided family, residing apart, is not at liberty, by con-
verting his gains into costly ornaments, to deprive the other
members of their share in his acquisitions (s) ; and if the wife
under cover of that position appropriates what belongs to her
husband, she subjects herself to punishment (t). On the other
hand the general sacredness of a promise (v) is upheld in the case
of one made to a wife. The sons must fulfil it (w). In this
respect the modem treatises go beyond the text of the Mitak-
shara, 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 [x).
Gifts to mothers, sisters, daughters-in-law, and to other female
relatives occur not unfrequently in practice {y). No difficulty is
raised to the reception of such presents even of immovable pro-
perty, where the title of the donor is unincumbered ; but the sub-
ject is not so dealt with in the modern comment^aries as to afford
a ground for a profitable comparison with the Mitakshara. 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; but according to the Vyav Mayukha a
(p) Chap. IV., sec. 1, para. 23; Stokes's H. L. B. 241. See Koonjbehari
)hur V. Premchand Dutt, 1. L. R. 5 Cal., 684. For Bombay see the case of
'Mrahasapa v. Chanverova, 10 Bom. H. C. R. 403.
iq) See above, p. 204 ss.
(r) 2 Str. H. L. 55, 241; Musst. Radha v. Bisheshur Dass, 6 N. W. P. li.
^9. See above p. 186. Actual gift without fraud, of ornaments to a wife,
>as8es the property to her, but not a mere handing of them to her for use on
jremonial occasions. Kurnaram v. Hinibhay, Bom. H. C. P. J. 1879, p. 8;
36 Smriti Chandrika, Transl. Chap. IX., sec. I., 11 ss. ; Ashahai v. Haji Tyeb,
L. R. 9 Bom. 115; Gojabai v. Bhosle, I. L. R. 17 Bom. 114.
(s) Q. 315 MS., Ahmednuggur, 13th June 1853.
it) Narada, Pt. II., Chap. XII. SI. 92; compare Manu IX. 199.
(v) Narada, Pt. II., Chap. IV., SI. 5; Manu IX. 47; Vyav. May., Chap. IX.,
>ara. 2; Stokes's H. L. B. 133.
(lo) See the Smriti Chandrika, Chap. IX., sec. 2, para. 25; Viramitr., sec. 1,
)ara. 21, below; Vyav. May., Chap. IV., sec. 10, para. 4; Stokes's H. L. B. 99.
(x) See the Mit. on the Administration of Justice ; 1 Macn. H. L. p. 203, 217.
(y) See Chattar Lalsing et al. v. Shewukram et al., 6 Beng. L. R. 123.
282 HINDU LAW. [BOOK I.
house given to a married woman by a stranger to the family and
her own earnings had been held to be her stridhan devolving on
her death, as if she had been a male, on the daughter-in-law as
a gotraja sapinda in preference to the daughters of a deceased
daughter (z). So are the ornaments given to her on her own
marriage, and a house purchased by her out of her own
income (a).
That women may take property generally by inheritance has
been shown in the foregoing pages of this work (b). Baudha-
yana's quotation from the Veda (c), though supported by Brihas-
pati (d), is no longer allowed to disqualify them. That text, as
we have seen, may be differently construed (e). Manu's
Text IX. 18, misquoted by the Viramitrodaya (/), points indeed
to an essential inferiority of women as incapable of pronouncing
expiatory formulas (g), and Gautama (h) seems by omission to
exclude even a mother from a share on a partition, but Katya-
yana's Srauta Sutra, the only one on the White Yajurveda,
gives to women the right to sacrifice as allowed by the Vedas (z).
The Dayabhaga (k) and the Smriti Chandrika (I) admit the wife's
succession on the special ground of her association with her
husband in sacrificial rites (m). Kulluka 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
(z) Bat Narmada v. Bhagwantrai, I. L. R. 12 Bom. 505. Cf. Vyav. May.,
Chap. IV., sec. 10, p. 7. Thakur Deyhee v. Bulak Ram, 11 M. I. A. 139.
(a) Gojabai v. Bhosle, I. L. R. 17 Bom. 114, Cf. Vyav. May., Chap. IV.,
eec. 10, p. 7.
(6) To note (n), p. 120, add a reference to Dayabhaga, Chap. XI., sec. I.,
p. 49 (Stokes's H. L. B. 318); Vyav. May., Chap. IV., sec. 8, p. 2 {ibid. 84)
(c) See Baudh. Pr. II. Ka. II. 27.
(d) See the Smriti Chandrika, Chap. XI., sec. 1, p. 27; Vyav. 7\Iay
Chap. IV., sec. 8, p. 3 (Stokes's H. L. B. 84).
(e) Supra, p. 118 ff.
(/) Viram. Tr. p. 244.
ig) Manu XI. 194, 252 ff.
(h) Adhyaya 28, 1 ff.
(t) See Mon. Williams, In. Wis. 159.
(fe) Chap. XI., sec. 1, p. 47 (Stokes's H. L. B. 316).
il) Chap. XI., sec. 1, p. 10; Max Miiller, Hist. San. Lit. 28, 205.
(m) Smriti Chand. Chap. XI., sec. 1, p. 12; Mit. Chap. II., sec. 1, p. 5
(Stokes's H. L. B. 428).
woman's property. 283
duties (n). The Viramitrodaya (o) adopts the less generous con-
struction of the Smriti Chandrika (p), and the Dayabhaga {qj
that a woman's capacity to inherit can arise only under special
texts in her favour; but the Mitakshara (r) and the Vyavahara
Mayukha do not recognise any general disability. The latter
indeed (s), as we have seen, treats a sister with special favour [t).
The nature of the estate, which a woman takes in the propertj-
in any way acquired by her, seems to have been regarded by
Vijnanesvara as standing on the same footing as the estate of a
male. To this he mentions only one exception, " a husband is
not liable to make good the property of his wife taken by him,
in a famine, for the performance of an (indispensable religious)
duty, or during illness, or while under restraint " (v). The
Vyavahara Mayukha (w) and the Viramitrodaya (x) repeat this
text. The Smriti Chandrika (y) quotes one to the same effect
from Devala. Devanda Bhatta goes so far even as to say : —
" In a husband's property, the wife by reason of her marriage
possesses always ownership, though not of an independent
character, but the husband does not possess even such ownership
in his wife's property " (z). The Hindu notion of ownership
(n) Col. Dig., Book V. T. 397, Coram, ad fin.
(o) See Transl. p. 244.
(p) Chap. IV., p. 5.
iq) Chap. XI., sec. 6, p. 11; Stokes's H. L. B. 346.
(r) Chap. II., sec. 1, paras. 14; 22-24 (Stokes's H. L. B. 489, 490).
(s) Chap. IV., sec. 8, para. 19; Stokes's H. L. B. 89; above, p. 181.
(t) The daughters take absolutely and so do the sisters. Vinayak Anundrao
V. Lakshmibai, 1 Bom. H. C. E. 124; Bhagirthibai v. Kahnujirav, I, L. R.
11 Bom. 285; Jankibai v. Sundra, I. L. R. 14 Bom. 612; Madhavram v.
Trambaklal, I. L. R. 21 Bom. 739. The daughters take absolute and several
estates — Vithappa v. Savitri, I. L. R. 34 Bom. 510; Ranimoni Dassi v. Radha
Prasad, L. R. 41 I. A. 176.
(v) Mit. Chap. II., sec. 11, p. 31; Stokes's H. L. B. 465. In case of mis-
conduct on the part of the wife of a flagrant kind the husband may take poses-
sion of her Stridhana. Viramit. Transl. p. 226.
(w) Chap. IV., sec. 10, p. 10; ibid. 101.
(x) Sec. 1, p. 20.
iy) Chap. IX., sec. 2, paras. 14, 15. In para. 26, Devanda insists on the
mother's exclusive ownership of her Stridhana as against any claim to parti-
tion advanced by her sons. But this must be understood by reference to his
conception of Stridhana, and, as to property formerly her husband's, by refer-
ence to his notion that the widow's share is not heritage and not partible
property. See the Smriti Chand. Chap. IV., p. 11; Chap., VII., p. 22.
(z) Col. Dig., Book V. T. 415, Comm. ; "A man, his wife, and his son are
co-proprietors of the estate." Reply of the Sastri at Ahmednuggur, 30th
284 HINDU LAW. [BOOK 1.
seems to be not- incompatible, either with this right springing up
on particular occasions, or with the woman's general depen-
dence (a). No limitation is prescribed by Vijnanesvara to the
wife's or widow's use of the share taken by her in a partition (b).
It is shown in the Smriti Chandrika (c) that this share falls within
Vijnanesvara 's conception of inheritance, and thus becomes pro-
perty in the fullest sense. An unmarried daughter, who on such
;an occasion " shares the inheritance " (d), is similarly unfettered
-as to the disposal of it by any rule in the Mitakshara (e). It
accepts the doctrine of the general dependence of women, but
without working it out to any practical result. It omits the pro-
hibitions referred to by the modem commentators, against the
wife's expending even her separate property without the assent
of her husband (/), and in making no special provision as to
March, 1878, MS. No. 39. According to the law of Western India a woman
has full ownership of her pallu or Stridhana, Reg. v. Natha Kalyan et al. , 8 Bom.
H. C. E. 11, Cr. Ca. The Eoman law, like the English Equity, strove to
^uard a woman's property against dissipation by many provisions. See
Ooudsm. Pand. § 26, p. 55.
(a) Mit. Chap. II., sec. 1, para. 25; Stokes's H. L. B. 435, and the cases
cited above.
(b) Mit Chap. I., sec. 2, para. 8; sec. 6, para. 2; sec. 7, paras. 1, 14
(Stokes's H. L. B. 379, 394, 397, 401); Dayabhaga, Chap. III., sec. 2,
para. 37 note {ibid. 233); Durga Prasad v. Broja Nath Bose, L. K.
39 I. A. 121.
(c) Chap. IV., para. 10, Comp. Col. Dig., Book V. T. 420, 515, Comm.
(d) Compare Col. Dig., Book V. T. 399, Comm. sub fin.; Mit. Chap. II.,
sec. 1, p. 25, {ibid. 435).
(e) Mit. Chap. I., sec. 7, para. 14; Stokes's H. L. B. 401. See above,
p. 98, note (m) ; Tukaram v. Narayan, I. L. E. 36 Bom. 339, F. B.
(/) See the Viramitrodaya, sec. 1, paras. 14, 15, below; Vyav. May., Chap.
IV., sec. 10, para. 8; Stokes's H. L. B. 100; Dayabhaga, 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 sub-
ject 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
^ave 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. cit
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 K., Book, I. C. 16, Book II., Chap. 8.
woman's property. 285'
Saudayikam it may probably have intended to leave the full
ownership constituted by its texts to their natural operation on
the whole of a woman's estate (g).
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 contradictions 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 customary 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 com-
mended itself to those even who are in a general way followers
of the Mitakshara. The Smriti Chandrika limits the woman 's-
right of disposition to Saudayika, defined as wealth received from
her own or her husband's family, and excluding immovable pro-
perty given by her husband (h). 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 (i) or with the consent of the presumptive
reversioners (k). The Viramitrodaya (1) gives full power of dis-
position over Saudayika only. So too does the Vyavahara
Mayukha (m), and as to property taken by the widow on her
husband's death, it limits her strictly to a life enjoyment subject
only to exceptions in favour of religious gifts (n), or of her (or
ig) See above, pp. 134, 259; Govindji Khimji v. Lakshmidas Nathubhai,.
I. L. R. 4 Bom. 318. In a note to the case of Doe dem Kullammal v. Kuppu
Pillai, 1 Mad. H. C. R., at p. 90, the principal passages are collected, which
bear on a woman's power to deal with her separate property. In Brij Indar
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 contrued 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 Mitakshara 's rule.
Chap. II., sec. XI., paras. 1 ff. is denied as to grants made to a widow.
(h) Sm. Ch. Chap. IX., sec. 2, paras. 6, 11.
(i) Chap. XI., sec. 1, paras. 19, 28, 29.
(k) Bajrangi Singh v. Manokarnika Bakhsh Singh, I. L. R. 30 All. 1,.
P. C. ; Radha v. Joy, I. L. R. 17 Cal. 896; Nobokishore v. Flari, I. L. R.
10 Cal. 1102. As to mode of consent, see Sham v. Achhan, L. R. 25 I. A. 189.
(l) Sec. 1, paras. 14, 15, below.
(m) Chap. IV., sec. 10, para. 8 (Stokes's H. L. B. 100).
(n) Ibid. para. 4 (Stokes's H. L. B. 99). In the case of Chooneena v.
Jussoo Mull Deveedass, 1 Borr. R. 60, it was decided on the Vyav. May-
HINDU LAW. [BOOK I.
her mother's) power to dispose of movables during her lifetime (o)
or to wil it away if permitted by the husband (p). The Vivada
Chintamani is to the same effect (q). Jimutavahana (r), while
denying the wife's ownership of gifts from strangers (s), says
that over all property, really hers, her power of disposition is
unfettered, save in the case of her earnings and of immovables
bestowed by the husband (t). These she is only to enjoy by way
that a widow could not devise property inherited from her husband to her
family priest so as to deprive the next heir, her nephew's widow. In
Jugjeerun Nuthoojee et al. v. Deosunkur Kaseeram, 1 Borr. B. 436, on the
other hand, a widow was allowed to bequeath by way of Krishnarpana the
property inherited from her husband, except the family house and the sum
requisite for her obsequies, to the exclusion of her husband's cousin. The
decision rested on the sacred character of such a gift ; as in the Vyavastha in
Dhooluhh Bhaee et al. v. Jeevee et al., 1 Borr. R. 75, the Sastri says, (p. 78)
" Goolal Bai was not authorized to assign to the children of her brethren the
house of her husband Pitamber (which after his demise had descended to her)
without the sanction of the heirs." In Poonjeeahhaee et al. v. Prankoonwur ,
I Borr. 194, it was ruled that 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 Katyayana,
quoted in the Vyavahara Mayukha, to show that a woman is generally unfit
to enjoy fixed property, and that a widow cannot dispose of it except for
special purposes. Her son enjoying according to the Mayukha an unobstructed
right of inheritance (Chap. IV., sec. 10, p. 26; Stokes's H. L. B. 105), was
probably regarded by the Sastris as having a joint ownership in the property,
which thus became inalienable without his assent. " A son," says the Pandit
at 2 Mor. Dig., 243, " inherits the estate of his mother in the same manner
as that of his father." See p. 140. The Smriti Chandrika, Chap. VIII.,
para. 11; Chap. IX., sec 11, para. 26; sec. III., para. 4, denies the
unobstructed ownership of a son in his mother's property. See also the Mit.
Chap. I., sec. VI., para. 2; Sheo Shankar v. Debt Sahai, L. R. 30 I. A. 202,
in which the whole law on the subject is exhaustively dealt with ; Bai
Devkore v. Amritram, I. L. R. 10 Bom. 372; Haribai v. Lakshmibai, I. L. R.
II Bom. 573; Madhavram v. Trambaklal, I. L. R. 21 Bom. 739.
(o) Harilalv. Pranvlabdas , I. L. R. 16 Bom. 299; BaiJamna v . Bhaishankar ,
I. L. R. 16 Bom. 233.
(p) Motilal V. Ratilal, I. L. R. 21 Bom. 170; Cf. Gadadhar v. Chandrab-
hagbai, 1. L. R. 17 Bom. 690, F. B. — A widow governed by the Mitakshara
<;annot bequeath movables inherited from her husband.
iq) Pp. 262, 263. See B. Gunput Sing v. Gunga Pershad, 2 Agra R. 230.
(r) Dayabhaga, Chap. IV., sec. 1, paras. 20, 23; Stokes's H. L. B. 240, 241.
(s) Col. Dig., Book V. T. 420, Comm. II.
(t) Col. Dig., Book V. T. 470, Comm.; 420 Comm. As to a gift for main-
tenance by a son, see Musst. Doorga Koonwar v. Musst. Tejoo Koonwar et al.,
5 C. W. R., 53 Mis. R. ; and the Dayabhaga, Chap. IV., sec. 1, p. 18 (Stokes's
- by
■I ab
m
woman's property. 287
of use; and similarly when she takes his estate on his death,
which, according to the Dayabhaga, she does, whether he was
separated or unseparated from his brethren (v), 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, under the pressure of necessity, or with the
sanction of the paternal uncles and other near relatives of her
deceased husband (w). Jagannatha, being forced to admit that
the widow has independent power over day a as her husband's
gift or as heritage (x), says in one place that, as to such property,
H. L. B. 240); Bat Jamna v. Bhaishankar, I. L. E. 16 Bom. 233; Mohima
Ghunder Roy v. Durga Monee, 23 W. K. 184, P. C.
iv) Op. cit. Chap. XI., sec. 1, paras. 6, 46 (Stokes's H. L. B. 305, 316).
See Keerut Singh v. Koolahul Sing et al., 2 M. I. A. 331; Ghirdharee Sing v.
Koolahul Sing et al., 2 ibid. 344; Rao Karun Sing v. Nawab Mahomed Fyz
Alii Khan et al., 14 ibid. 187; The Collector of Masulipatam v. C. Vencata
Narrain Appah, 8 ibid. 500; Gobind Monee Dossee v. Sham hall Bysack et al.,
C. W. R., Sp. No., p. 165; East, C. J., in Cossinaut Bysack et al. v. Hurroo-
soondry Dossee et al., 2 Mor. Dig., at p. 215.
iw) Op cit. Chap. XI., sec. 1, paras. 56, 62, 64 (Stokes's H. L. B. 320-322);
Deo dem Ramanund Mookopadhia v. Ramkissen Dutt, 2 Mor. Dig., 115. For
the case of an estate taken jointly under this law by two widows, see Gobind
Ghunder et al. v. Dulmeer Khan et al., 23 C. W. E. 125; Sreemuttee Mutfee
Berjessory Dossee v. Ramconny Dutt et al., 2 Mor. Dig. 80; and compare
p. 95 of this work. A wife having a joint interest with her husband may
after his death sell her own share, Madavaraya v. Tirtha Sami, I. L. E.
1 Mad. 307. " In respect of gifts by a husband to his wife she takes immov-
ables only for her life and ha® no power of alienation, while her dominium
over movable property is absolute," per Jackson, J., in Koonjbehari Dhur v.
Premchund Dutt, I. L. E. 5 Cal. at p. 686. The rule was applied to a bequest
by a will which imposed restrictions on a widow's absolute dealing with mov-
ables, but none as to the immovable property. Comp. Brij Indra v. Rani
Janki Kooer, L. E. 5 I. A. 1; supra, p. 93. If a widow turns funds given
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 Surya Rao, 1. L. E. 2 Mad.
333. A gift by a widow to her daughter's son was held valid as against the
heirs of her husband's cousin whose share before the husband's decease had
been sold in execution. Gokul Singh et al. v. Bhola Singh, Agra S. E. for
1860, p. 222; The same limitations apply to a mother's estate, Sorola v. Bhuban.
I. L. E. 15 Cal. 292; Contra, Chhiddu v. Naubat, I. L. E. 24 All. 67 and
Sri Pal V. Suraj, I. L. E. 24 All. 82.
(x) 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 Mor. Dig., 234. A suit for jewels was maintained, Wulubhram v. Bijlee,
2 Borr. E. 481. See Col. Dig., Book V. T. 481, Comm. Col. on Oblig.,
Book II., Chap. III., recognises this right. The answer at 2 Mor. Dig. 68
288 HINDU LAW. [BOOK I,
if immovable, " her enjoyment only of it is authorised " (y) — a
rule which applies to movables also (^). He thinks, however, that
her alienation of the property, though blameable, may be
valid (a), yet he quotes Narada (b) against any such alienation,
and says that all the authorities concur in forbidding it as to pro-
perty devolved on a widow by the death of her husband (c).
Property acquired by inheritance by a woman before her mar-
riage he regards as at her independent disposal {d) ; if acquired
during coverture it is subject to her husband's control like her
other acquisitions, so long as the husband lives (e). To a
daughter he assigns full power over Stridhana which devolved on
her from her mother (/). But, with the exception of the Bombay
{Jushadah Raur v. Juggernaut Tagore), denies to a mother any power to dis-
pose by will of the personalty inherited from her son, which she might have
expended. It escheats to the crown. As to realty, see ibidem; and p. 100
{Gopeymohun Thakoorv. Sehun Cower et al.) ; at p. 131 (Doe dem. Sihnauth Roy
V. Bunsook Buzzary). At p. 155 (Doe dem. Gunganarain Bonnerjee v. Bulram
Bonner jee), the opinion of the Pandits, given by Macnaghten, is that in Bengal
a widow's estate being only usufructuary and untransferable, her sale of the
property is invalid 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, Ramahai 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. K. Ill, unless perhaps where it has been made a
specific charge on some part of the estate Gangabai v. Krishnaji Dadaji,
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, 1 Kolle, Abridgm. 30, Langdell, Contracts, 419. But as to
a widow's estate properly so called, see supra, p. 285, and the further cases
cited below.
iy) Col. Dig., Book V. T. 515, Comm.
(z) Ibid., T. 402, Comm.
(a) Ibid., T. 399, Comm., T. 420 Comm. ; as to this see above p. 208.
(b) Ibid., T. 476.
(c) Ibid., T. 402, Comm., sub fin. See Colebrooke, cited 2 Mor. Dig., p. 212
{Cossinaut Bysack et al. v. Hurroosoondry Dossee et al.).
(d) See 2 Macn. H. L. 127; Bai Kesserbai v. Morariji, I. L. K. 30 Bom.
431, Tukaram v. Narayan, I. L. K. 36 Bom. 339 F. B.
(e) Col. Dig. T. 470, Comm.
(/) Ibid., T. 515, Comm. Several cases under the Bengal law will be found
in 2 Macn. H. L. Chap. VIII. Property inherited by a daughter from her
father is not Stridhana in Bengal. Chotay Lai v. Chunnoo Lai, L. R.
6 I. A. 15.
woman's property. 289
Presidency and the provinces of Behar and Madras, in case of a
maiden daughter succeeding (g) a female inheriting from another
female takes only a widow's estate {h).
The share taken by a mother in a partition is, according to the
Smriti Chandrika (i), only a means of subsistence. In Hari Dayal
V, Grish Chundra {k) it was laid down by the Calcutta High
Court that property inherited by a female from a male conferred
on her only a restricted estat-e. In Sorolah v. Bhuban (kk) the
above principle was applied to cover a share obtained by the
mother on partition. The Allahabad High Court, however, lays
down that the share allotted to the mother vests in her an
absolute proprietary right (I). In Durga Prasad Singh v. Braja
Nath Bose (m) the Judicial Committee has held that, in the
absence of express agreement to the contrary, a share obtained
by a widow (or mother), on partition of the joint property, on her
death reverts to the next heir of the last male holder. That given
to a sister is only a marriage portion (n). The Viramitrodaya
insists (o) that in a partition by brothers, daughters are entitled
to shares, not merely to a provision for marriage. The Vyavahara
Mayukha (p), 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. Nilakantha does not adopt Vijnanesvara's
definition of heritage (q), and it seems that he would, on a
widow's death, assign the share allotted to her in a partition to
her sons (r), but the same remark might on the same ground be
made as to the succession to a share given to a sister. It is
doubtful, therefore, whether any abiding interest of the family of
(g) Venkatarama v. Bhujangarav, I. L. E. 19 Mad. 109.
(h) Sheo Shankar v. Debt Sahai, L. E. 30 I. A. 202.
(X) Chap. IV. p. 9., I. L. E. 15 Cal. 292. See per Kennedy, J., in Jagmohan
Haldar v. Sarodamoyee Dossee, I. L. E. 3 Cal. 149. The pandit's opinion was
different. See below.
(k) I. L. E. 17 Cal. 911, 916.
(kk) I. L. E. 15 Cal. 292.
(l) Chhiddu V. Nauhat, I. L. E. 24 All. 67 ; Sri Pal Rai v. Surjbali, I. L. E.
24 All. 82.
(m) L. E. 39 I. A. 121 ; Tewar v. Dorasingha, L. E. 8 I. A. 99, 109.
(n) Chap. IV., pp. 16, 17, 18; Vinayek v. Luxumeehaee, 9 M. I. A. 538.
(o) Transl. p. 85.
(p) Chap. IV., sec. 4, pp. 15, 18, 40 (Stokes's H. L. B. 51, 52, 57); Manilal
V. Bai Rewa, I. L. E. 17 Bom. 758; Motilal v. Ratilal, 1. L. E. 21 Bom. 170;
Madhavram v. Tramhaklal, 1. L. E. 21 Bom. 739.
iq) Vyav. May., Chap. IV., sec. 2, para. 1; Stokes's H. L. B. 46.
(r) Ibid. sec. 10, p. 26; Stokes's H. L. B. 105.
H.L. 19
290 HINDU LAW. [BOOK I.
the former co-sharers in such property would still subsist or not.
Jagannatha (s) says that such a share may be aliened by its
recipient, and he applies the same rule to property inherited [t),
but his discussion of these questions shows that conflicting
opinions are maintained by the principal modem commentators (v).
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 old Hindu legislators
have indulged in general declarations of her unfitness for that
character. Manu, 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 inde-
pendence ' (w) ; but what does this prove in respect to their civil
rights? Narada goes further, and asserts that ' after a husband's
decease the nearest kinsman should control a widow, who has
no sons, in expenditure and conduct (x). 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."
And again, at page 20: "The old lawyers have said, ' let 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 hare 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 immovable property inherited by a
(s) Col. Dig., Book V., Chap. II. T. 88, Coram.
(t) Ihid^ 399, Coram., and compare T. 470, and T. 483, Corara.
{v) The Pandits of the Supreme Court of Bengal in 2 Mor. Dig., at p. 217,
said that, even recognising the restrictions on a widow's estate taken by mere
succession, yet what she received on a partition was to be regarded as Strid-
hana subject to her absolute disposal. See also ibid. 239, where the restric-
tions imposed seem to be only moral ones.
(w) XI. 3.
{x) Quoted in the Dayabhaga, p. 269.
woman's property. 291
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 (y), at least, such
was th.e case till a new race of law-givers, with Jimutavahana 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 succeeded
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 hus-
band's sole heir. One is attributed to Katyayana, 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 ' (z). The other is from the Mahabharata, 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 a declaration, and Jimutavahana is content
to say that ' a widow shall only enjoy the estate ; she ought not to
give it away, or mortgage or sell it ' (h). He allows her also, if
unable to subsist otherwise, to mortgage or even to sell it, and to
iy) In Doe v. Ganpat, Perry, 0. Ca. at pp. 135, 136, the Sastri of the Sudder
Court expressed an opinion that the widow of a separated Hindu 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 in-
applicable 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 pro-
perty preferable to the nephew of the deceased, one of the line of heirs expressly
named by the Hindu authorities.
(z) Viramitra Trans, pp. 136, 225; Vivada Chint. p. 261; Dayakrama Sang-
raha. Chap. I., sec. II., para. 3; Chap. II., sec. 11. paras. 11, 12.
(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
Dayakrama Sangraha, the passage is taken from the Danadharma of the
Anusasanaparva ( ?)]
(h) See Dayabhaga, p. 265.
292 HINDU LAW. [BOOK I.
make presents to her husband's relatives and gifts or other
ahenations for the spiritual benefit of the deceased. It is not till
we come to the third generation of lawyers, the commentators on
the commentators, that the restriction is positive, and Sri Krishna
Tarkalankara, expounding Jimutavahana'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 property
inherited from a husband in default of male issue (c). 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 regulation most conformable to reason, to analogy, and to the
spirit of the Hindu Code, would be to give the widow absolute
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 movables, 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 (d), the
(c) Mitakh. Ad. Yajn. II. 135; Vivada Chintamani, p. 151; Viramitrod.,
page 193 a; Vyavahara Mayukha, Chap. IV., sec. 8, p. 2 ff. (Stokes's
H. L. B. 84).
(d) "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. C. in Katamma Natchiar v. Raja of Sivagunga,
•I
woman's property. 293
arguments in favour of absolute right are infinitely stronger,
inasmuch as the Bengal authorities lean to the same view of the
subject. Jimutavahana starts no objection to such power, his
remark being confined entirely to the case of sole inheritance, and
the Vivada Bhangarnava 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.' "
With special reference to the share taken by the widow in a
partition (e), he remarks (page 27): "It is asserted, indeed,
that a husband's heirs succeed to such property in preference to a
I 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
restriction 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
jnot specially provided for? ' Heritage and partition ' are included
I by the text of the Mitakshara, which is good law in every part of
^India, even in Bengal amongst the constituents of ' woman's
)roperty,' and a woman is acknowledged by all to be mistress of
ler 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 parti-
tion of his wealth must not be made away with by their mother ;
jbut this is surely a different case. A husband, in undue fondness,
[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, therefore, to secure to them the
reversion of such effects."
Colebrooke's opinions on this subject appear to have 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
fproperty inherited is supported by a treatise bearing the name of
9 M. I. A. 539, on which their Lordships rest the widow's inheritance to pro-
tperty separately acquired by her husband, as such property would be retained
[by him in a partition.
(e) See Viramit. Transl. p. 147; Mit. Chap. I., sec. VI., para. 2.
(/) Braja Kishore v. Kundana Devi, L. K. 26 I. A. 66 ; Harilal v. Lakshmibai,
rl. L. E. 11 Bom. 573; Motilal v. Ratilal, I. L. E. 21 Bom. 170.
294 HINDU LAW. [book I.
Kaghunandana, which Prof. Wilson seems to have thought
genuine, but which Colebrooke himself pronounces " more than
doubtful," as opposed to the whole current of authorities, in his
note to Dayabhaga, Chap. IV., sec. 1, para. 23 (Stokes's
H. L. B. 241). At 2 Str. H. L. 402 he agrees with the Sastri
that a woman may give away her own property, except lands
taken by gift or inheritance from her husband (g), " which she
cannot dispose of without consent of the next heir " (h). At
page 407 he seems, in a Broach case, to intimate that what comes
to a woman from her husband is not even Stridhana. He must
here have had the Bengal law in mind, as the Mitakshara,
Chap. I., sec. 1, para. 20 (Stokes's 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 Mitakshara is silent on the
woman's power to alien her peculiar property (i), and she may,
on her husband's death, dispose as she pleases of his affectionate
gift with the exception of immovables. As to these (ihid. p. 21),
the Benares and Mithila authorities, he says, impose a general
restriction upon the woman's alienation of the property (k). At
pp. 108, 110, Colebrooke says that a widow succeeding is
restricted from aliening the immovables, and in this Ellis concurs
on the ground that " No woman under any circumstances is
absolutely independent " (l); but as to that the case at p. 241
shows that Colebrooke thought a widow could dispose as she
pleased of her Stridhana, consisting of jewels (m) ; and on her
ig) So in Harihhat v. Damodharhhat, I. L. R, 3 Bom. 171, as to a will by a
daughter who having inherited from her father took, it was said, an absolute
estate. But in Bharmanagavda v. Bharmappagavda, H. C. P. J. for 1879,
p. 657, Pinhey and F. D. Melvill, JJ., ruled that the widow of a collateral
inheriting in that right cannot dispose of the property thus inherited by will.
A widow's will was held inoperative against her step-daughter's right as heir
to her father, 0. Goorova Butten v. C. Narrainsawmy Butten, 8 M. H. C. R. 13.
The testamentary power is as to Stridhana commensurate with the right of
disposal during life. Venkata Rama's Case, I. L. R. 2 Mad. 333.
(h) So 1 Macn. H. L. 40.
(i) Doe dem. Kullamal v. Kupper Pillai, 1 Mad. H. C. R. 88.
(k) See also 2 Macn. H. L. 35; Sheo Shankar v. Dehi Sahai, L. R. 30
I. A. 202; Jiwan Singh v. Misrilal, L. R. 23 I. A. 1 ; Sham Sunder v. Achhan,
L. R. 25 I. A. 183; Teki Ram v. D. C. of Bara Banki, L. R. 26 I. A. 97;
Raja CheUkani's Case, L. R. 29 I. A. 156.
(I) So per Grant, J. See Comulmoney Dossee v. Ramanath Bysack, Fult.
R. 200, and as to the higher castes, Steele, L. C. 177.
(m) See the Vivada Chintamani, p. 260. The presumption is that orna-
woman's property. 295
decease such ornaments will pass on to her daughter, or sons and
daughters jointly, according as they were given to her before or
after marriage (n).
As to the share taken by a woman on a partition, Colebrooke
appears to have distinctly recognised her as a subject of " Daya,"
or inheritance in the fullest sense (o). At 2 Str. H. L. 382 he
says that, according to the Mitakshara, such a share is an absolute
assignment, heritable therefore by the widow's daughters {p).
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 (q). 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 participation as heir."
This makes it agree with the opinion at p. 382. In the same case
Sutherland thinks, but with diffidence, that the share allotted to
a stepmother reverts on her death to the partitioning sons. In
Bhugwandeen Doohey v. Myna Baee (r), the Judicial Committee
ments given for ordinary wear are meant to be Stridhana, Musst. Radha v.
Bisheshur Dass, 6 N. W. P. E. 279. See above, pp. 205 and 186. Family
jewels, it has been held in Bengal, are not transferable by a widow as her
own property, Bhagwanee Koonwur v. Parhutty Koonwur, 2 C. W. E.
13 Mis. E., but see also the Vyavastha Darpana, p. 684, Vishnu, Chap. 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; Col. Dig., Book V. T. 473. Macnaghten says (1 H. L. 40) "that the
Hindu law recognises 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."
Gojabai v. Bhosle, I. L. E. 17 Bom. 114.
in) Ashahai v. Haji Tyeh, I. L. E. 9 Bom. 115.
(o) Mit. Chap. I., sec. I., pp. 2, 8, 12 (Stokes's H. L. B. 364, 366, 370);
Chap. II., sec. I., pp. 2, 31, 39 (ibid. 427, 436, 439) ; sec. 2, pp. 1, 2 (ibid. 440).
(p) Ibid. Chap. I., sec. 3, p. 9; Stokes's H. L. B. 383.
(q) Mit. Chap. I., sec. V., pp. 2, 3; Stokes's H. L. B. 394; Jogendro v.
Fulkumari, I. L. E. 27 Cal. 77 ; Poorendra v. Hermangini, I. L. E. 36 Cal. 75;
Chhiddu v. Naubat, I. L. E. 24 All. 67.
(r) 11 M. I. A., at p. 514.
296 HINDU LAW. [BOOK I.
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 sum of
money given to a widow in lieu of maintenance is ati her own
absolute disposal was ruled in the Madras case, cited below,
p. 299, note (r). Under the Bengal law Sir W. Jones says (s),
" The movable property is at the widow's disposal, the immovable
descends to the heirs "; but Colebrooke says, " the doctrine of the
Bengal school controls the widow even in the disposal of personal
property " (t).
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 Vijnanesvara, at least
as to a woman's dealings with immovable property taken by
inheritance or by gift from her husband (v). In a Bengal case,
2 Macn. H. L. 214, the Sastri says that in the precept " ' Let the
wife enjoy with moderation the property until her death,' the
word 'wife ' is employed with a general import," including all
cases of female inheritance. The restriction does not apply, he
says, to land given to a daughter by her father (ir). In the case
in the Digest of Vyavasthas, Chap. II., sec. 9, Q. 7, the Sastri
denies to a mother inheriting from her son any power to alien the
property, though the Smriti Chandrika (x) and the Dayabhaga (y)
would apparently give her an exclusive interest as against her
husband (z).
In the Bombay Presidency, immovable 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's daughter of her right to
(s) 2 Mor. Dig., 243.
(t) Cossinaut Bysack et al. v. Hurroosoondry Dossee et al., 2 Mor. Dig.
205, 219.
(v) The passage of Narada, Pt. I., Chap. III., SI. 30, prohibiting the gift
by a widow of land given to her by her husband (Dayabhaga, Chap. IV.,
sec. 1, p. 23; Stokes's H. L. B. 241) seems to qualify the special rule in
paras. 39, 40, enabling her as surviving parent to deal at her discretion with
the estate.
(w) See Col. Dig., Book V. T. 478, 420, Comm.
(x) Chap. XI., sec. 3, p. 8.
(y) Chap. IV., sec. 1, pp. 1, 18, 19 (Stokes's H. L. B. 235, 240).
(z) See P. Bachiraju v. V. Venkatappadu, 2 Mad. H. C. E. 402.
woman's property. 297
inherit (a), and in Balvant Rav. v. Purshotam (5), Sir M.
Westropp, C.J., says, " The widow in this Presidency takes a
limited estate in the immovable property of her childless husband
or son " (c), but she can dispose of his movable estate during her
lifetime as she chooses (d), and by will if she is given the
power (e), according to the Vyav. May., though not according
to the Mitakshara (/). In Purshotam v. Ranchhod (g) 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 administration 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 adminis-
tration, 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 judgments themselves),
the representation was full. It was filled by the widow, who took
as heir, and, although a Hindu widow's estate in immovables
inherited from her husband, which has been compared to that of
a tenant-in-tail after possibility of issue extinct (h) [is such that]
(a) Kotarhasapa v. Chanverova, 10 Bora. H. C. K. 403. Comp. Rindamma
V. Venkata Ramappa et al., 3 Mad. H. C. E. 268, and Sri Gajapathi Nilamani
V. Radhamani, L. E. 4 I. A. 212, where co-widows took a joint estate for life
in their husband's property, with rights of survivorship and equal beneficial
enjoyment.
(b) 9 Bom. H. C. E. at p. Ill;
(c) Bechar Bhagvan v. Bai Lakshmi, 1 Bom. H. C. E. 56; Vinayak
Anandrav et al. v. Lakshmibai, ibid. 117 ; Pranjivandas et al. v. Devkuvarbai
et al., ibid. 130; Mayaram v. Motiram, p. 313 of the 2nd Edition, 2 ibid. 323;
2 Str. H. L. 13, &c. So in Doorga Dayee et al. v. Poorun Dayee et al.,
5 C. W. E. 141. See above, p. 92. Under a gift from a Hindu, his wife
takes only a life estate in immovables, and an absolute estate in movables.
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 immovable property. Koonjbe-
hari Dhur v. Premchand Dutt, I. L. E. 5 Cal. 684. A gift from mere
generosity by a widow out of a gift from a husband was held invalid. Rudra
Narain Singh v. Rup Kuar, I. L. E. 1 All. 734.
id) Harilal v. Pranavalabdas, I. L. E. 16 Bom. 229; Bai Jamna v. Bhai-
shankar, I, L. E. 16 Bom. 233; Madhavram v. Trambaklal, I. L. E. 21 Bom.
739; Haribai v. Lakshmibai, I. L. E. 11 Bom. 573.
(e) Motilal v. Ratilal, I. L. E. 21 Bom. 170.
(/) Gadadhar v. Chandrabhagbai, I. L. E. 17 Bom. 690, F.B.
(g) 8 Bom. H. C. E., at p. 156 0. C. J.
(h) Mohar Ranee Essadah Bai v. The E. I. Company, 1 Taylor and
Bell, 290.
298 HINDU LAW. [BOOK 1.
she may alien only under very special circumstances, and although
she may be restrained by injunction from committing waste (i),
yet she does fully represent the inheritance even in that kind of
property (k). 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 under the Hindu law, and is.
the estate which passed from the late owner : nothing is in
abeyance (l). The incapacity to alienate is not in any way incon-
sistent with an inheritance ' (m). And then he instances estates
tail after the statute de donis and until the invention of recoveries,
and other estates of inheritance which are not alienable ; and I
may add that of a Hindu, entitled to ancestral lands of inheri-
tance, who, after he has male issue, and while they are living, is
unable to alienate their inchoate shares in the lands which he
holds undoubtedly as of inheritance (n). 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 pur-
poses of alienation unwarranted by Hindu 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
(i) Hurrydoss Dutt v. Rungunmoney Dossee et al., 2 Taylor and Bell, 279;
Oojutmoney Dossee v. Sagormoney Dossee, 1 ibid. 370; Sreemutty Jadomoney
Dahee v. Saradaprosoon Mookerjee, 1 Boulnois, Eep. 120; Govind v. Godhole,
I. L. E. 11 Bom. 320; Bhau Bahaji v. Mahipati, I. L. R. 11 Bom. 325;
Sakharam v. Sita Ram, I. L. R. 11 Bom. 42; Sakrahai v. Maganlal, I. L. R,
26 Bom. 206; Jihan v. Brojo, L. R. 30 I. A. 81; Srimohan v. Brijhehari,
1. L. R. 36 Cal. 753; Ganap v. Suhhi, I. L. R. 32 Bom. 577.
(k) Doe dem. Rajchunder Paramanic v. Bulloram Biswas, Fulton, Rep. 133,
135; Gopeymoliun Thakoor v. Sehun Cower et al., 2 Mor. Dig. 105, 111;
Cossinaut Bysack et al. v. Hurroosoondry Dossee et al., 2 ibid. 210, 215.
(I) A right of pre-emption may be exercised by a widow who takes her
husband's property by inheritance. Phulman Rai v. Dani Kurai, I. L. R.
1 All. 452.
(m) Hurrydoss Dutt v. Rungunmoney Dossee et al., 2 Taylor and Bell,
281, 282.
(n) As to this see now under Partition, Book II. Introd.
woman's property. 299
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 movable property at this side
of India she takes an absolute estate, subject to payment of her
husband's debts ' (o).
" In Ramchandra Tant[r]a Das v. Dharmo Narayan Chucker-
butty (p), a Full Bench held at Calcutta ' that the interest of an
heir, expectant on the death of a widow in possession, is so mere
a contingency that it cannot be regarded as property, and there-
fore 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 Com-
mittee in the recent case of Musst. Bhagbutti Daee v. Chowdry
Bholanath Thakoor et al. (q). Their Lordships say: "If she
took the estate only of a Hindu 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 possession of all such property, real and
personal." But the documents 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 neir (r).
(o) Vinayak Anand Rav et al. v. Lakshmihai, 1 Bom. H. C. E. 118; Pranji-
vandas et al. v. Devkuvarhai et al., ibid. 130.
(p) 7 Beng. L. E. 341. Civil Procedure Code, 1908, sec. 60.
iq) L. E. 2 I. A. at p. 261 ; S. C. 24 C. W. E. 168.
(r) See further the case of S. Soorjeemoney Dossee v. Denahundoo Mullica
et al., 6 M. I. A. 526, and 9 ibid. 123; Govind Chunder et al. v. Dulmeer Khan
et al., 23 C. W. E. 125; Nihalkhan et al. v. Hurchurn Lall et al., 1 Agra E.
219. In Sri Raja Rao Venkata Mahapati v. Mahipati Suriah Rav (16 Nov.
1880), C. 241; the Judicial Committee held that immovable property bought
by the widow out of funds given by the husband is equally at her disposal as
the money with which it was purchased. Accumulations from her maintenance-
<300 HINDU LAW. [BOOK 1.
In the case of Gonda Kooer et al. v. Kooer Oodey Singh (s),
their Lordships considering that purchases made by the widow-
were to be deemed accretions to the deceased husband'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 (t).
In Babu Sheo Lochun Singh v. Bahu Sahib Singh (v) the Privy
•Council have held that when a Hindu widow invests the accumu-
lations from her deceased husband's estate prima facie it is her
intention that they should be regarded as accretions thereto, but
it follows that they will be her separate property, descendable in
ra different line of succession, if she intended them to be her own.
In Mithila they would absolutely belong to her, and in Bombay
savings and accumulations attach to the husband's estate (w).
The Mitakshara, as we have seen, would not restrict her dealing
with such property. In one case the Sastri said that a carriage
and bullocks purchased by a widow out of her pension were
•Stridhana (x), and in the recent case at Madras of Venkata
Rama Ran v. Venkata Suriya Ran et al. (y), it was. held that
where a widow, having received presents of movable property
from her husband, had after his death purchased immovable
property with these and the money raised on her jewels, the
property was Stridhana which she could dispose of by will.
Under the Bengal law, as decided by the Judicial Committee, in
Luchmunchnnder Geer Gossain et al. v. Kalli Chum Singh
et al. (z), a woman purchasing property out of her Stridhana has
or her life estate and presents may be invested by a lady in land, which
remains Stridhana, N ellarkumaru Chetti v. Marukathammal, I. L. E. 1 Mad.
166, and the cases at pp. 271, 307 of the same volume, elsewhere referred to.
(s) 14 Beng. L. R. 159.
(f) See also Sonatnn Bysack v. T. Jug guts oondree Dossee, 8 M. I. A. 66;
Gooroo Pershad Roy et al. v. Nuffar Doss Roy et al., 11 C. W. R. 497;
S. Puddo Monee Dossee v. Dwarka Nath Biswas et al., 25 ibid. 335.
(v) L. R. 14 I. A. 63; Isri Dutt v. Hansabati, L. R. 10 I. A. 150; Tincowree
V. Dinanath, 3 Cal. W. R. 49; Sowdamini Dassi v. Broughton, I. L. R. 16 Cal.
674 : Cf. Venkatrama v. Suriya, I. L. R. 2 Mad. 233; Munia v. Puran, 1. L. R.
S All. 310.
(w) Rivett Carnac v. Jivibai, I. L. R. 10 Bom. 478.
(x) Q. 1576, MS., Ahmednuggur, 26th August, 1856.
iy) 1. L. R. 1 Mad. 281 ; affirmed by P. C. 2 Mad. 333.
(z) 19 C. W. R. 292.
WOMAN S PROPERTY.
301
full power to dispose of it during her husband's life (a). Unlike
the Mithila law, where accumulations out of husband's estate by
a widow and purchases therefrom absolutely belong to her (h) :
the Bengal School holds that they attach to the husband's estate
unless her intention was to the contrary (c).
The Sastri in the case of Musst. Thakoor Deyhee v. Rai Baluk
Ram et al. (d), a case from the N.W. Provinces, governed
generally by the Mitakshara, went so far as to say : ' ' The real
property which G. 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 without issue) can give it
away to any one she likes. Eeal 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 (e), but apart from the practical error into which this led
him it would not be easy to demonstrate that this opinion was
not in accordance with the Mitakshara. The Judicial Committee,
however, after a review of the principal text-books and decisions,
dissented from the Sastri 's view. They say (at page 175) : " 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 movable 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 immovable
property which she has so inherited; and that on her death the
immovable property, and the movable, if she has not otherwise
disposed of it, pass to the next heirs of her husband. There is
no trace of any distinction like that taken by the Pandit between
(a) In Gunnesh Junonee Dehia v. Bireshur Dhul, 25 C. W. R. 176, a widow
sued her husband's brother successfully for two-thirds 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
proved, to have been made out of her Stridhana.
(b) Doorga v. Pooran, 5 W. R. 141 ; Biajan v. Luchmi, I. L. R. 10 Cal.
392; S. C. 11 M. I. A. 487.
(c) Isri Dutt V. Hansabati, I. L. R. 10 Cal. 324, P. C. ; S. C. 10 I. A. 150;
Sheolochan v. Saheb, I. L. R. 14 Cal. 387, P. C. ; S. C. 14 I. A. 63.
id) 11 M. I. A. at p. 150.
(e) 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.
302 HINDU LAW. [book 1
ancestral and acquired property. In some of the cases cited the
property was not ancestral."
In Vijiarangam's Case (f) it was said that property inherited
by a woman from her husband ranked like that inherited from
any other relative, as Stridhana, according to the Mitakshara,
but her capacity to deal at will with such property, if immovable,
as a necessary consequence of this proposition, was denied. At
page 263 it is said :
" We have seen that Vijnanesvara includes all property
inherited by a woman in her Stridhan. In the same chapter
(Mitak., Chap. II., sec. 1, pi. 39) he had previously arrived,
through 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 inherit-
ance from any other person. The right which he thus confers on
her is balanced by a corresponding right which he allows to the
husband and his 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
(/) Vijiarangam et al. v. Lakshman, 8 Bom. H. C. E. 244 0. C. J. This
decision is modified by Madhavram v. Tramhaklal (I. L. E. 21 Bom. 739),
which lays down that in the Bombay Presidency female heirs, who by marriage
and not by birth come into the gotra of a male whom they succeed take only a
widow's estate in property which they inherit from the last male owner.
Whether the estate inherited by such females is called their Stridhan or not
their restricted rights over it are admitted by all schools, and on their decease
it reverted to the heirs of the last male holder. They include widows {Lalluhai
V. Mankuvarhai, I. L. E. 2 Bom. 388); daughter in-law {Vithaldas v. Jeshuhai,
I. L. E. 4 Bom. 219) ; mother and grandmother (Pranjivdas v. Devkuvarbai,
1. B. H. C. E. 130; Narsappa v. Sakharam, 6 B. H. C. E. 215; Sakharam v.
Sitabai, I. L. E. 3 Bom. 353). But daughters take absolute estate {HaribJiat
V. Damodar, I. L. E. 3 Bom. 171; Jankibai v. Sundra, I. L. E. 14 Bom. 612) ;
and so do sisters (Biru v. Khandu, I. L. E. 4 Bom, 214; Bhagrathibai v. Baija,
I. L. E. 5 Bom. 264). This view has been re-affirmed in Vrijbhukandas v.
Bai Parvati, I. L. E. 38 Bom. 26, and in Dhondi v. Radhabai, I. L. E. 36 Bom.
546; but a grandmother inheriting movable or immovable property from her
maiden granddaughter takes it absolutely, as aforesaid restrictions apply only
to widowed females from males {Gandhi v. Bai Jadab, I, L. E. 24 Bom. 209.
F. B.). See also Harilal v. Pranavlabdas, I. L. E. 16 Bom. 229, and Bai
Jamna v. Bhaishankar , I. L. E 16 Bom. 233.
WOMAN S PROPERTY.
30;
she inherited (g), and which, according to the Vyavahara
Mayukha, would go to her heirs as though she had been a male,
is assigned by Vijnanesvara (h) to her daughters, her sons, and
.after them to her husband and his sapindas. The two rules
spring from the same source — a higher conception of a woman's
capacity for property and of her complete 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 harmonises more with the Hindu
theory of the united family than the opposite doctrine of her
taking his share equally, whether the family have been divided
or not.
" Vijnanesvara, like all the Hindu 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 cir-
cumstances (i). 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 sufficiently
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 Chap. 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 immovable 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 (k). It is clear,
therefore, that a right of absolute disposal did not enter into
Vijnanesvara 's conception of the essentials of ownership (i). He
ig) Col. Dig. Book V. T. 399, 477.
(h) Mitak., Chap. II., sec. 11, pi. 9, 12, 25.
(i) Mitak., Chap. II., sec. 1, pi. 32, 33; Stokes's H. L. B. 466-66.
(fe) If he reserve enough for the support of the family, however, the father
'is allowed to deal, free from interference, with what he has himself acquired.
Such is the effect of the passage referred to when taken with Chapter I., sec 5.
^pl. 10, unless the latter is to be referred — as perhaps on correct principles of
'^interpretation, it ought to be referred — solely to movable property.
(l) With the Hindu conception of ownership as consisting in exclusive 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
)man 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 sub-
[fititution opened had only a bare expectation ; judgments and prescriptions
304 HINDU LAW. [book I,
admits (m) the genuineness and the authority of the text
of Narada, which, with so many others, proclaims the
dependence of women, which he sa^^s does not disqualify
them for proprietorship. He allows a husband, as we
have seen, in some cases to dispose of his wife's property.
The inference to be gathered from these passages is strengthened
if we look into the chief authorities. Manu allows women
no independence. The verse denying it occurs in Yajnavalkya
also (Chap. I.). Katyayana, so frequently quoted in the
Mitakshara, says that the widow is to enjoy the estate frugally
till she die, and after her the heirs (n) consistently with that
passage of the Mahabharata (o) which limits the widow to simple
enjoyment. Jagannatha (T. 402), referring to texts 476 and 477,
observes that as a woman is not allowed to make away with
immovable 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 restraining
her power of dealing with it (p). . . .It seems a reasonable
inference from these and other authorities that, as to immovable
property at any rate (and with immovable property, according to
operative against the successor as heir operated also against the substitute ;
yet subject to special exceptions the former could not alienate the property.
The substitute, moreover, though he had but a mere hope of succession, could
take all measures requisite for the preservation of the property. See Poth.
Tr. des Substitutions, sec. v., arts. 153, 155, 160, 175, 178.
The closest resemblance, however, to the estate of the Hindu 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 proprietress, 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 husband 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 widowhood 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 lands by metes and bounds.
See Laboulaye, op. cit. 401; Bl. Comm., Book II., Chap. VIII.
(m) Mitak., Chap. II., sec. 1; pi. 25, Stokes's H. L. B. 435.
(n) Col. Dig. Book V. T. 477.
(o) T. 402.
ip) Vyav. May., Chap. IV., sec. 8, pi. 3; ihid. 84.
WOMAN S PROPERTY.
305
the Hindu law, is classed every kind of property producing a
periodical income) 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 needlessly
dissipated at her mere caprice. Katyayana, indeed, as quoted by
Nilakantha (g), 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 Stridhana by
no means involves the consequence that she can alien it without
good reason (r). The argument in support of this consequence
put forward by Jagannatha in his comments on Colebrooke's
Digest, Book 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 so 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
subject operate* to prevent her alienation of fixed property and
chattels, and therefore the decisions of the Sadr Dewani in the
cases of Mahoda v. Kalyani et al. (s) and Vijaya Devi v. Anna-
puma Devi (t) may be admitted as law, the authority of the
Court having been interposed, as we have recommended it should
iq) Vyav. May., Chap. IV., sec. 8, pi. 4; Stokes's H. L. B. 84. This, restric-
tion applies equally to landsi 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.
(r) See Narada, Chap. I., sec. 3, p. 28. Property consists not in the right
of alienating at pleasure; Col. Dig., Book V. T. 2, Comm. Dependence does
not imply defect of ownership, ibid., Book II., Chap. IV., T. 17, Comm. As
to property taken as her share by a wife or widow in a partition, Jagannatha
asserts her power to dispose of it equally with Stridhana. Col. Dig., Book
V. T. 87, 88, Comm. This agrees with the opinion of the pandits cited below,
and with the Mitakshara, Chap. I., sec. VII., sec. II., para. 8; above pp. 288,
293, 294.
is) 1 Cal. S. D. A. K. 62.
(t) Ibid. 162.
H.L. 20
306 HINDU LAW. [book I.
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 Stridhana in the Daya-
bhaga (v). It rests, perhaps, on the general texts as to a
woman's dependence which are cited in Col. Dig., Book III.,
Chap. I., T. 51, 52; and on these Jagannatha throws out 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 comprehended within the general term " son," takes
any acquisition of wealth subject to her father's superior right,
which, as to such property, continues during her subsequent
coverture, so as to prevent an alienation without his assent (w).
But her guardianship 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 con-
sidered at p. 91. The chief of them are compendiously stated in
the case of Lalla Gunpat Loll et al. v. Musst. Toorun Koonwur
et al. {x): " The Sraddha of the widow's husband, the marriage
of his daughter, the maintenance of his grandsons, and the pay-
ment of the husband's debts are legitimate grounds of necessity
for alienations." Self-maintenance, discharge of just debts, pro-
tection or preservation of the estate, are grounds of expenditure
equally justifiable as pious purposes {y). The charges of a pilgrim-
age were refused recognition as a ground for alienation in Huro
Mohun V. S.Auluck Monee Dassee et al. (z), but she may alienate
(v) See above, p. 258.
(w) Col. Dig., Book V. T. 477, Comm.
(x) 16 C. W. K. 52 C. K. ; Udai v. Ashu, I. L. E. 21 Cal. 190; Vrij v. Bai.,
I. L. E. 32 Bom. 26; Srimohan v. Brijhehari, I. L. E. 36 Cal. 753; gift to son-
in-law on the occasion of the gowna ceremony — Ramasami v. Vengidusami,
I. L. E. 22 Mad. 113; Alienation of a daughter for the marriage of her own
daughter — Rustam v. Moti, I. L. E. 18 All. 474.
iy) Soorjoo Pershad et al. v. R. Krishan Pertah, I N. W. P. E. 49.
(z) 1 C. W. E. 252.
WOMAN S PROPERTY.
307
a small portion of the property for pious purposes of her own (a).
She may alienate her husband's property to go to Gaya (b), but
not to Benares (c), to perform his Sraddha there. A compromise
made by the widow in fraud of the rights of the expectant heirs
is not binding against them (d). That her defective capacity,
however, must not be made a means of fraud is noted in the
Digest of Vyavasthas, Chap. II., sec. 2, Q. 4, as also that her
transactions must be made good so far as they can be out of her
limited estate (e). A wife in Bengal has a power of sale over
immovables which she has purchased out of her separate
funds (/). The wife, however, according to Macn. H. L. 40, on
whom their Lordships rely, is subject to her husband's control,
even as to her Stridhana. A widow turning her movable
Stridhana into immovable property can dispose of the latter by
will (g).
Sri Krishna Tarkalankara in the Daya Krama Sangraha regards
Stridhana chiefly from the point of view of the particular modes
of devolution prescribed for the different elements of it. It is for
the purpose, he says, of determining precisely to which of these
the different rules of succession apply that the definitions of the
different kinds of Stridhana have been framed (h). Vijnanes-
vara's rules for the succession to Stridhana are discussed in the
Introductory Eemarks to the Digest of Vyavasthas, Chap. IVb.,
sec. 6, of this work (i), where, too, the rules of the Vyav. May.
on the same subject are considered. The statement of Sir W.
Macnaghten (1 H. L. 38) 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 peculium/' is entirely unsupported
(a) Ram Kawal v. Ram Kishore, 1. L. E. 22 Cal. 506.
(b) Collector of MasuUpatam v. Cavaly, 8 M. I. A. 529, 550; S. C. 2 W. K.
59, P. C.
(c) Harikissen v. Bajrang, 13 C. W. N. 544; S. C. 9 C. L. J. 453.
(d) Musst. Indro Kooer et al. v. Shaikh Ahdool Purkat et ah, 14 C. "W. E.
146 C. E.
(e) See Mayaram v. Motiram, 2 Bom. H. C. E. 313; Bagooa Jha v. Lai Doss,
6 C. W. E. 36 C. E. ; Ram Shewuk Roy et al. v. Sheo Gohind Sahoo, 8 ibid.
519.
(/) Luchman Chunder Geer Gossain et al. v. Kalli Churn Singh et al.,
19 C. W. E. 292, P. C.
ig) Venkata Rama Ran v. Venkata Suriya Ran et al., I. L. E. 1 Mad. 281.
(h) Daya Krama Sangraha, Chap. II., sec. 2, para. 1; Stokes's H. L. B. 487.
(i) See also Book I, p. 135 ff. above.
808 HINDU LAW. [book I.
by anything in the Mitakshara itself (k), and has been the source
of much confusion in practice. That work, having enlarged the
woman's capacity to take property all of which it terms Strid-
hana, then lays down rules of corresponding breadth as to its
devolution. The exception of the Sulka and its probable origin
have already been noticed. The Mayukha, as we have seen (1),
while accepting Vijnanesvara's definition of Stridhana, dis-
tinguishes between the kinds specially described 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 (m). In the absence of a distinct rule in the
Mitakshara for the devolution of woman's property this might
have been an admissible doctrine under that law. But first the
Mitakshara makes the woman inherit ; then it says that Stridhana
includes the property thus taken (Mit., Chap. II., sec. XI.,
para. 3); then it says " Stridhana has been thus described"
(Mit., Chap. II., sec. XI., para. 8); " Failing her issue Stridhana
as above described shall be taken by her kinsmen ... as will be
explained" (Mit., Chap. II., sec. XI., para. 9); then, that
daughters and their offspring take in priority to sons; lastly, that
sons take (Mit. Chap. II., sec. XI., para. 19). An exception
made as to the Sulka (Mit., Chap. II., sec. XI., para. 14), and
the special rule laid down as to that, serve to emphasise
Vijnanesvara's intention that the general rules should extend to
(fc) " Vijuanesvara . . . erklait Adyam . . . als alles auf irgend eine
Art . . . Erworbene ; er behauptet, dass Stridhana hier einfach in seiner
etymojogischen Grundbedeutung . . . zu nehmen sei : . . . Im ganzen
folgenden Abschnitt iiber das Stridhana und die Succession in dasselbe wird
diese Definition festgehalten." — Jolly, Ueber die Eechtliche Stellung der
Frauen &c., p. 67. Vijnanesvara explaining Adyam so 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
peculium Macnaghten meant the kinds of property specifically enumerated in
the Smritis, he is in direct contradiction to the Mitakshara, or else draws a
distinction which the Mitakshara does not draw, and on which therefore nothing
turns. The rules given are as to ** woman's property," not as to peculium,
except in the single instance of Sulka.
(l) Above, pp. 136, 138 note (g); p. 262.
(m) The Sastri 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 Mayukha, but in excluding a grandson he disagreed with it. The succes-
sion of the remoter heirs is in all cases governed by the same rules as though
the property were a male's, according to the Daya Krama Sangraha. See
Vyavastha Darpana, p. 727.
woman's property. 309
every other case, " the author," as he says, " now intending to
set forth fully the distribution of Stridhana, begins by describing
it" (Mit., Chap. II., sec. XI., para. 1), and then gives rules for
its devolution as above (n).
The view taken by Jimutavahana, and constituting the Bengal
law, is this. The Anvadheya or gift subsequent, and the Priti-
datta or present from a husband, are types of all the special
kinds of Stridhana, which he recognises, and are, he says, to be
equally divided between eons and daughters. The Yautaka or
gift at the marriage goes to the unmarried daughters alone (o),
who have a preference over their betrothed, married, and
widowed sisters in the distribution of the other Stridhana also (p).
Next after daughters as successors come the sons, the daughter's
sons, son's sons, and son's grandsons, after whom come the
stepsons, stepson's sons, and stepson's grandsons (q). This line
of succession resting on the principle of exequial benefits differs
widely from Vijnanesvara's, who next to daughters places their
daughters, and next to them daughter's sons (r), before the sons
of the deceased woman are admitted. On failure of offspring,
Jimutavahana (s) 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, mother, and
father in succession (t). If, on the other hand, she was married
in) What Yajnavalkya (11. 117) calls the " mother's property," Vijna-
nesvara 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. Chap. II., sec. X.,
para. 30.
(o) See Srinath Gangopadhya et al. v. Sarhamangala Debi, 2 Beng. L. R.
114 A. C.
(p) Viramit., sec. 3, p, 20.
iq) Dayabhaga, Chap. IV., sec. 2 (Stokes's H. L. B. 243-251). For the
stepson by a co-wife, see ibid., sec. 3 (ibid. 251); Daya Krama Sangraha,
Chap. II., sec. 3, para. 11 (ibid. 493); Col. Dig., Book V. T. 505, 506.
(r) Mit. Chap. II., sec. 11, pp. 10, 12, 18, 19; Stokes's H. L. B. 460-2.
(s) Dayabhaga, Chap. IV., sec. 3, p. 4 ff; Stokes's H. L. B. 251.
(t) See Judoonath Sircar v. Bussunt Coomar Roy, 11 Beng. L. R. 286.
Further details on the Bengal law will be found in the summary, Dayabhaga,
Chap. IV., sec. 3 (Stokes's H. L. B. 251), under the head of Stridhana, in
Macnaghten's H. L. and in the Vyavastha Darpana. At 2 Mor. Dig. 237, the
Sastri says, in a Bengal case, that even immovable property given to a woman
by her husband descends, on her death as a widow, to the heirs of Stridhana
or female property. Compare the answers, referred to above, pages 289, 293.
310 HINDU LAW. [book I.
by a disapproved rite, then the order of succession is mother,
father, brother and husband. Ayautaka is assigned to (1) sons
and maiden daughters, (2) fertile married daughters, (3) son's
son, (4) daughter's eon, (5) son's grandson, (6) sonless daughters,
(7) brother, (8) mother, (9) father, and (10) husband. The step-
son and his son are recognised as heirs, but their places in the
series are not assigned. These, and also the stepson's grandson,
being quasi-descendants of the deceased woman, should
perhaps be placed after the true great-grandson, seeing that they
offer oblations through which the deceased may incidentally
benefit. This is the order laid down by the Daya Krama
Sangraha, but if consanguinity gives precedence, as the Daya-
bhaga seems to imply, then these descendants of the husband
should be postponed to (6) the barren daughter, though she
cannot confer any spiritual benefits in return. After the husband
and before the husband's sapindas the Dayabhaga names as heirs
to Stridhana of either kind those males of the next lower genera-
tion to whom the deceased might have been a quasi-mother. But
the order of precedence among these heirs is different from that
given by the Vyav. Mayukha, being determined by relative
sacrificial benefits. They are: (11) husband's younger brother,
(12) husband's brother's son, (13) sister's son, (14) husband's
sister's son, (15) brother's son, and (16) son-in-law. After these
specified heirs the husband's father and other sapindas not
included in the list succeed in an order determined by the
relative efficacy of their sacrifices {v).
Jagannatha [w) follows Jimutavahana to some extent in his
rules as to the succession to Stridhana. Sons and daughters
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 married
daughters, the son'^ son succeeds, and in default of him the
Property taken by a woman before her marriage by bequest from her father
is in the same case pronounced Stridhana. If it is her Stridhana then her
heirs as classed in the province should inherit it. See Col. Dig. Book V. T. 420,
Comm. ; Mit. Chap. II., sec. XI., para. 30. In Ramgopal v. Narain Chandra
(I. L. E. 83 Cal. 315) the mother succeeded to the immovable property given
by the father in the form of a Mokurri lease, in preference to the husband.
In Prosunno Kumar v. Sarat Soshi (I. L. E. 36 Cal. 86) the son succeeded
to the mother's non-yautaka gift of the father in preference to the daughter.
(v) D. B. Chap. IV., sec. III., 36, 37.
(w) Col. Dig., Book V., Chap. IX., sec. 2
WOMAN S PROPERTY.
311
daughter's son (x). After these the inheritance goes to the
woman's own family of all her property, except gifts at the
marriage (y). The husband, as to such property, comes in after
her brothers and parents (z). 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 rule is that
on the death of the woman it goes to the then nearest heirs of
him whom she succeeded. The woman's own heirs are not
regarded as heirs to property thus acquired (a). Jimuta extends
the rule even to a daughter's son succeeding to his maternal
grandfather, but this is contradicted by Jagannatha (h). Mitra-
misra (c) condemns the explanation given by Jimuta, and
generally follows the Mitakshara. He, however, not only gives
the Sulka to the brothers, but also immovable property bestowed
by their parents, and what was given by the kinsmen. The
husband married by an approved rite succeeds, with these excep-
tions, to the whole property left by his childless wife, not merely
to her nuptial presents. The rules of the Smriti Chandrika (d)
and the Madhaviya (e) are glanced at in the course of Mitra-
misra's discussion. The Vivada Chintamani 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 (/).
This slight sketch of the systems or attempts at system of the
other commentators will serve to show the great advantage of
Vijnanesvara's scheme in point of simplicity. This, as shown in
the Digest of Vyavasthas, Chap. IV., and above, p. 135 ss., has
generally prevailed in Bombay and in Mithila. Thus in
Gangaram et al. v. Balia et al. (g), it was ruled that property
(x) Op. cit. T. 445, Comm.
(y) Ibid. T. 504, 508, 509, 511.
(z) Ibid. 512.
(a) Dayabhaga, Chap. XI., sec. 1, p. 56 ff; Stokes's H. L.
sec. 2, p. 30, ibid. 329; Col. Dig., Book V. T. 420, 422, Comm.;
130 ff.
(6) Sitabai v. Badri Prasad, I. L. E. 3 All. 134.
(c) Viramitrodaya, Transl. pp. 221, 228 ss.
(d) See Smriti Chandrika, Chap. IX., sees. 2, 3.
(e) Madhaviya, p. 43.
if) Vivada Chintamani, p. 266 ff.
{g) Bom. H. C. P. J. F. for 1876, p. 31; Vivada Chintamani.
B. 320, &c.,
1 Str. H. L.
312 HINDU LAW. [book I.
inherited by a woman from her father is Stridhana, which
descends first to her daughter, and, failing a daughter, to her
husband and his heirs. In Pranjeevandas et al. v. Dewcoover-
baec et al. (h) it was held that " daughters take the immovable
property absolutely from their father after their mother's death."
In Vinayek Anundrao et al. v. Luxumeebaee et al. (i) it is said of
the mother inheriting from her son : ' ' The quantum 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 quantum 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 Hindu Law" (k); but in
Madhavram v. Trambaklal (I) a mother, a grandmother, a
daughter-in-law, or a widow of a gotraja sapinda has been held
to take only a widow's estate. In Mithila a mother inherits
movables and son's self-acquired property absolutely, but
immovables with the same restrictions as imposed on a widow.
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 Pan-
dita, cited by Mr. Colebrooke in his annotations to para. 5 of
sec. 5 of the second chapter of the Mitakshara, 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 absolutely,
and so, therefore, do the sisters " (m), and the same is the law
in Mithila.
In the case already referred to the Sastri says that the property
taken by inheritance by a mother from her son is for the purpose
(h) 1 Bom. H. C. E. 130; Bhagirthihai v. Kahnujirav, I. L. E. 11 Bom.
285, F. B. ; Jankihai v. Sundra, I. L. E. 14 Bom. 612.
(i) 1 Bom. H. C. E. 121.
(fe) Manu, Chap. IX., sec. 185, 217; Mitakshara on Inheritance, Chap. II.,
sec. 3 (Stokes's H. L. B. 441); Vyavahara Mayukha, Chap. IV., sec. 8, p. 14
(Stokes's H. L. B. 87).
(l) I. L. E. 21 Bom. 739.
(w) 1 Bom. H. C. E. 124. See now Dig. Vyav., Chap. 11., sec. 14, I. A. 1,
Q. 4, Eemark. A maternal great-niece takes an absolute estate by inheritance
like a daughter or sister. I, L. E. 5 Bom. 662; Madhavram v. Trambaklal,
I. L. E. 21 Bom. 739. Cf. Dalpat v. Bhagwan, I. L. E. 9 Bom. 301.
I
woman's property. 313
of further descent to be regarded as her property. In the case of
Jugunath v. Sheo Shunkar (n) the Suddur Court, on the advice
of its Sastri, 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 own
family. In Madhavram v. Trambaklal (o) (a Bombay case) it
has been held that all female heirs — for example, widow, mother,
grandmother, daughter-in-law, widow of a gotraja sapinda, etc. —
who by marriage come into the gotra of the male whom they
succeed take only a widow's estate in the property which they
inherit from him, and that, whether such an estate is called their
Stridhana or not, their restricted rights over it are admitted by all
schools, and on their decease the property passes to his heirs (p).
This law applies to all females inheriting from a male (q), and even
from a female (r), their estate being regarded as limited in all parts
of India governed by the Mitakshara and the Dayabhaga except
the Bombay Presidency (r) and (s). In Mithila a widow takes
movables absolutely, whether she inherits directly from her
husband or through her son, and immovables for life ; her interest
in such property is the same as in that given to her by the
husband. The daughter takes absolutely what she inherits from
her father, and the mother what she inherits from her son if it
is his self-acquired property (t). It appears the Mithila rule is
followed in Bombay to a certain extent. In Kotarhasapa v.
(n) 1 Borr. E. 102.
(o) I. L. R. 21 Bom. 739; Cf. Bai Muncha v. Narotamdas, 6 Bom. H. C. R. 1
A. C. J.; and Vijayarangam v. Lakshman, 8 Bom. H. C. R. 244 0. C. J.
(p) Raja Chelikani's Case, L. R. 29 I. A. 156; Hari Dayal v. Grish Chunder,
I. L. R. 17 Cal. 916.
iq) Jullessur v. Uggur Roy, I. L. R. 9 Cal. 725; Muttu Vaduganadha v.
DoTa Singha Tevar, I. L. R. 3 Mad. 309; Phukar Singh v. Ranjit Singh;
I. L. R. 1 All. 661; Dehi Sahai v. Sheo Shankar, I. L. R. 22 All. 353; S. C.
L. R. 30 I. A. 202.
(r) Debi Sahai v. Sheo Shankar, L. R. 30 I. A. 202; Sheo Pertab v.
Allahabad Bank, L. R. 30 I. A. 209;
(s) Gandi v. Bai Jadub, I. L. R. 24 Bom. 192, 200, 213; Bhau v. Raghunath,
I. L. R. 30 Bom. 236, 237, P. C. ; Kesserbai v. Morariji, I. L. R. 30 Bom.
431, 452, P. C. ; Tuljaram v. Mathuradas, I. L. R. 5 Bom. 662.
(t) Vivada Chintamani. Biajan v. Luchmi, I. L. R. 10 Cal. 392 ; S. C. 11
M. I. A. 487.
314 HINDU LAW. [book I.
Chanverova (v) property given by a husband to one of his wives
was held to be Stridhana, held by her under a restriction against
a sale after 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 s.enses to which
we have referred may be observed in the above cases. According,
to the Mitakshara, 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 property 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 (w) this notion has-
gained a distinct ascendancy through the prevalence, in those
provinces, of authorities which, as we have seen, give to Strid-
hana a narrower meaning, and prescribe for its devolution much
more intricate rules than Vijnanesvara.
In Chotay Lall v. Ohunnoo Lall (x), Pontifex, J., says: ** It
appears to me, therefore, that if this case was uncovered by
authority, property taken by inheritance by a woman from her
father would be her separate property, unless the words ' acquired
by inheritance' are altogether rejected from the text"; but
being constrained by the weight of the contrary 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-
(v) 10 Bom. H. C. E. 403; Bai Kesserhai v. Morariji, I. L. E. 30 Bom. 431^
P. C. ; S. C. L. E. 33 I. A. 176.
(w) Colebrooke (2 Str. H. L. 403) says the descent from the widow is regu-
lated by the text of Brihaspati, Book V. T. 613 (misquoted as T. 413) of Col.
Dig. This the Vyav. May., Chap. IV., sec. 10, para. 30 (Stokes's H. L. B. 106),
applies to the special Stridhana only, in the case of a failure of the nearer
heirs provided by para. 28, i.e. the husband in case of an approved marriage,
and the parents in other cases, though apparently before the Sapindas of either.
The Mit., Chap. II., sec. 11, para. 11 (Stokes's H. L. B. 460), merely allows
the sapindas of husband or parents to succeed. In this case Colebrooke must
have intended to state the law of the Smriti Chandrika and Madhaviya, not
of the Mitakshara. See Smriti Chandrika, Chap. IX., sec. 3, para. 36.
In Madras on the death of one who inherited as a maiden daughter
she is succeeded by her married sisters, not by her own sons, Muttu Vadu-
ganadha Tevar v. Dorasingha Tevar, I. L. E. 3 Mad. at p. 335 ; and Simmam
Ammal v. Muttammal, ibid., at p. 268. See p. 99 ss. supra.
(x) 14 B. L. E., at p. 237, affirmed in L. E. 6 I. A. 15. Cf. Bai N armada
V. Bliagwanhai, I. L. E. 12 Bom. 505, and Manilal v. Bai Rewa, 1. L, E.
17 Bom. 758.
woman's property. 315
property in dispute : though I must confess that, speaking for
myself, if the case had been untouched by authority, I should
have felt compelled to give a plain meaning to the plain and
unqualified words of the Mitakshara 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 know-
ledge " (y). 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 Mitakshara are cited (z). Of these four are Bengal cases^
and rest partly on the doctrine of the Dayabhaga and partly on
Macnaghten's mistaken notion that the Mitakshara recognised
woman's property which was not Stridhana, or that it provided
some rule for the descent of such property different from the one
prescribed for Stridhana. A Madras case (a) also is cited, in which
it is said that the texts recognising a daughter's inheritance a&
Stridhana relate only to the appointed daughter. This is directly
opposed to the Mitakshara (b) and to the law in Madras, where
the maiden daughter takes an absolute estate, passing on her
death to her heir (c), as is another theory started in the same
case that the daughter inherits only as the passive instrument of
providing a worshipper for the deceased (d). Vijnanesvara bases
sapindaship entirely on consanguinity (e). The Bombay case of
Navalram Atmaram v. Nandkishor Shivnarayan (/), referred to by
the learned Chief Justice of Bengal, rules that property inherited
iy) A similar conclusion is arrived at by Innes, J., I. L. E. 3 Mad. at
pp. 310, 313, and at p. 333, Muttu Swami Ayyar, J., says, " There is no doubt
that Vijnanesvara Yogi, the author of the Mitakshara, classes it as strid-
hanam," but these learned judges held that the Mitakshara did not on this
point give the law to the Madras presidency.
(z) These are : Musst. Gyankoowur v. Dookhurn Singh, 4 Cal. Sel. Eep. 330;
Sheo Sehai Singh et al. v. Musst. Omed Koowar, 6 Cal. Sel. Eep. 301 ; Heralal
Baboo V. Musst. Dhuncoomary Beebee, Cal. S. D. A. E. for 1862, p. 190;
Punchunand Ojhab et al. v. Lalshan Misser et al., 3 C. W. E. 140; Deo
Persad v. Lujoo Roy, 14 Beng. L. E. 245n., 246n. ; S. C. 20 C. W. E. 102 r
Katama Natchiar v. the Raja of Shivagunga, 6 M. H. C. E. 310.
(a) Katama Natchiar v. the Raja of Shivaganga, 6 M. H. C. E. 310. Cf.
Raja Chelikani's Case, L. E. 29 I. A. 156.
(6) See Mit. Chap. II., sec. 2, para. 5, and Chap. I., sec. 11, para. 1;
Stokes's H. L. B. pp. 441, 410.
(c) Venkatarama v. Bhujanga, I. L. E. 19 Mad. 109. Cf. Jankisetty v.
Miriyala Hammayya, I. L. E. 32 Mad. 521.
id) 6 M. H. C. E. p. 338; Mit. Chap. II., sec. II., paras. 2, 3.
(e) See above, p. 112. (/) 1 Bom. H. C. E. 209.
316 HINDU LAW. [book I.
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
recognised 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 (g). Katyayana's
rule (h), supposed by other commentators to bring in the
husband's heirs after the widow by the mere word " heirs," is
by Vijnanesvara significantly omitted.
Jagannatha shows (i) that the inference drawn in the case of
other female successors by Jimuta Vahana from the text of
Katyayana relating to a widow is altogether unfounded. Of
Jimuta's view that on the death of a daughter who had succeeded
as a maiden to her father's property that property passes to her
married sisters as his heirs previously 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 Jimuta's personal authority is
accepted.
In one of the Bengal cases the Vivada Chintamani is 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, however, as stated by the learned
•editor, is that "any property which a woman inherits is her
Stridhana. Hence any property of her husband which she
inherits shall on her death be received by the heirs of her peculiar
property (k). This being so even in the case of a widow to whom
Katyayana '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
Balambhatta, the two principal commentators on the Mitak-
shara, say : " If the succession (to a man deceased) be taken . . .
by the grandmother it becomes a maternal estate and devolves
on . . . her daughters, or successively on failure of them on her
(g) See Vyav. May., Chap. IV., sec. X., paras. 22, 26; Smriti Chand.
Chap. Vin., para. 11.
(;i) Col. Dig., Book V. T. 477.
(t) Col. Dig. Book V. T. 420, Comm.
(k) See Viv. Chint. Table of Succession XII, XIII, pp. 262, 292.
woman's property. 317
daughter's sons, her own sons and so forth " {I) — that is, the
property is Stridhana though taken by inheritance from a grand-
son. The term is not used, because the doctrine of the Mitak-
shara being once received, it had no specific significance (m), but
the devolution prescribed necessarily implies it.
The Saraswati Vilasa, sec. 264, explains Ya jnavalkya 's text in
precise agreement with the Mitakshara. It describes Stridhana
as a kind of " daya " (n), sec. 333 ff; and includes a woman's
succession in the class of unobstructed inheritance, sec. 398 (o).
In providing also for succession to Stridhana in this largest sense,
though it recognises the special rules applicable to Sulka, &c.,
sees. 288, 303, it does not ground any difference on the fact of
the Stridhana '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 dealing with immovable property as do the
Vivada Chintamani and the other commentaries (p), without
contradicting the Mitakshara, which recognises her constant
dependence (q). In Katama Natchiar v. The Raja of Shiva-
gunga (r), however, the Privy Council say : " The passages in the
(I) Mit. Chap. II., sec. IV., para. 2, note. At Allahabad, however, exactly
the contrary was held, consistently with the other cases, Phulear Singh v.
Ranjit Singh, I. L. E. 1 All. 661. See p. 313 for cases which lay down that the
estate which a grandmother takes is limited.
(m) Comp. Vyav. May., Chap. IV., sec. X. para. 25.
(n) The Smriti Chandrika, Chap. 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 Daya (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 family 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 Vyavahara
Mayukha, Chap. IV., sec. 8, pp. 9 and 10 (Stokes's H. L. B. 86), says that
in the case of a plurality of widows or daughters, they are to divide it and take
equal shares.
(o) 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.
ip) See Smriti Chandrika, Chap. IX., 13, 15.
iq) Mit. Chap. II., sec. I., 25.
(r) 9 M. I. A. 539, 613.
318 HINDU LAW. [book I.
Mitakshara contained in clauses 2 and 3 of sec, 1, Chap. 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
(s) that if " obstructed " inheritance gives but a defective owner-
ship, as some authors have contended as a ground for cutting
down the estate of a female successor, the principle must apply
to a daughter's son, a pupil, and the other remote heirs in whose
cases no such limit^ation is admitted. Notwithstanding the cases
that rest on a different interpretation, the high Indian authorities
just referred to seem to place it beyond reasonable doubt that the
Mitakshara 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 (t). 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 of Shanker 8ahai v. Raja Kashi Pershad (v)
the Judicial Committee refused to limit a widow's estate to a
mere life interest, but in Brij Indur Bahadur Singh v. Ranee
Janki Koer (w) their Lordships said :
"It is unnecessary to determine whether immovable property
acquired by a woman by inheritance is * woman's property.' It
has been decided that a woman cannot, even according to the
Mitakshara, alienate immovable property inherited from her
husband, and that after her death it descends to the heirs of her
husband and not to her heirs, Musst. Thakoor Deyhee v. Rai
Baluk Ram, 11 M. I. A. 175 (x). And still more recently it has
been pronoimced [y) '* impossible . . . to^ construe this passage
[of the Mitakshara] as conferring upon a woman taking by
inheritance from a male a Stridhana estate transmissible to her
(s) Col. Dig., Book V. T. 420, Coram. II.
(t) See also above, page 263, 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 rule of the Mitakshara for that case.
{v) L. B. 4 I. A. 208.
(w) L. E. 5 I. A. 1.
{x) P. C, in Brij Indur Bahadur Singh v. Ranee Janki Koer, L. R. 6 1. A.,
at p. 15.
{y) Muttu Vaduganadha Tevar v. Dorasingha Tevar, L. R. 8 I. A., at
pp. 108, 109.
k
woman's property. 319
own heirs." In Sheo Shankar v. Debt Sahai (z) it has been held
that a woman inheriting even from a female does not take
absolutely.
While this has been the course of the decisions of the Privy
Council in cases from Bengal, Madras, and Allahabad (a), another
development by inference from the restrictions on a widow has
been arrived at in Bombay. The absolute estate of a woman is
necessarily her Stridhana (h), and as she can deal with it as she
pleases (c), so it, if anything, must be inherited as hers by her
heirs. So also as to a sister, according to the law of the
Mayukha, and with the same consequences (d). In Bengal,
Madras, and N.W. Provinces, where the restrictions on women's
inheritance are thought consistent with the doctrine of the
Mitakshara, the daughter succeeding as such has but the same
limited interest as the widow, and transmits no rights to her own
heirs (e). Jagannatha recognises it as incongruous that the
daughter who is postponed as heir to the widow should have a
larger power of alienation (/). It did not occur to him that
entrance to the family by birth or marriage made a difference.
But, lastly, the Judicial Committee in Mutta Vaduganadha v.
Dorasinga (g) say " how impossible it is to construe the passage
(Mit., Chap. II., sec. XI., para. 2) as conferring upon a woman
(in that case a daughter) taking by inheritance from a male a
Stridhana 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 that of the other heirs of her own predecessor (h), except
(z) L. E. 30 I. A. 202; Sheo Pertab v. Allahabad Bank, L. R. 30 I. A.
209; S. C. I. L. E. 28 All. 468.
(a) In Madras as well as in Bengal, contrary to the law as construed in
Bombay (above, p. 98), it is said that daughters once excluded as being
married at the father's death succeed 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. 98, notes (1) (m).
(b) See above, p. 283 ss.
(c) Venkatrama's Case, I. L. E, 2 Mad. 333.
(d) Vinayak Anundrao v. Lakshmibai, 1 Bom. H. C. E,, at p. 124;
Madhavram v. Trambaklal, I. L. E. 21 Bom. 739.
(e) See Chotay Lai v. Chunoo Lai, L. E. 6 I. A. 15; Muttu Vaduganadha
Tevar v. Dorasingha Tevar, L. E. 8 I. A. 99; Virasangappa v. Rudrappa,
I. L. E. 19 Mad. 120.
if) Col. Dig., Book V. T. 399, Comm.
(flf) L. E. 8 1. A., at p. 108.
(h) L. E. 30 I. A. 202.
320 HINDU LAW. [book I.
in Bombay, the law of which has been left unaffected by their
Lordships of the Privy Council in Sheo Shankar v. Dehi Sahai (/i),
and confirmed in Bhau v. Raghunath ({) and Kesserhai v.
Morariji (k), and according to the Mithila law, where a daughter
takes absolutely, and even a widow succeeds to movables with
complete proprietary rights. In the great case of Katama
Natchiar v. the Rajah of Shivagunga (l) 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 pronounced the immediate heirs, though the heirs of the
last male owner still had an interest, according to the doctrine of
reversion (m). The daughter died, and then it was adjudged 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 (n).
Now, in the case of Tulijaram Morariji v. Mathuradas and
others (o) it is said that all females entering a family by marriage
and becoming heirs through that connection are subject to the
same restrictions as a widow of the propositus — that is, they take
movable property absolutely, but in immovable 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 (p), but
the opposition is not one made by any Hindu authority. In
Vinayah Anundrao v. Lakshmihai (q), Arnould, J., says: " There
(i) I. L. E. 30 Bom. 229, 236, 237, P. C.
(k) I. L. E. 30 Bom. 431, 452, P. C.
(I) 9 M. I. A. 539.
(m) See Periasami et al. v. The Representatives of Salugai Tevar, L. E.
6 I. A. 61.
(n) 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.
Gust. Law, II. 272; see Muttu Vaduganadha Tevar v. Dorasinga, L. E. 8 I. A.
99. In Madras a married daughter's estate is now limited like the widow's —
Virasangappa v. Rudrappa, I. L. E. 19 Mad. 110.
(o) I. L. E. 5 Bom. 662; Madhavram v. Tramhaklal, I. L. E. 21 Bom.
739 ; Dhondi v. Radhahai, I. L. E. 36 Bom. 646.
ip) See Chap. II., sec. 7.
(q) 1 B. H. C. E., at p. 121; Madhavram v. Tramhaklal, I. L. E.
21 Bom. 739.
woman's property. 321
is no difference made by the texts in the quantum of estate taken
by a mother and a son." The daughters succeeding take abso-
lutely as the Sastris agreed in the Devacooverhai's Case (r), and
" as the daughters take absolut-ely so do the sisters " (s). But
"from these authorities [the Mitakshara and the Mayukha] it
would appear that a widow takes an absolute interest in her
husband's estate " (t). The Sastris referred to said she could
expend even the immovable property, though only for proper
purposes. Hence Sir M. Sausse concluded to "a mere life use
of the immovable estate " and " an uncontrolled power during
her lifetime (v) over the movable estate " as descending to a
widow. The limitation of the widow's estate is thus evolved
from Katyay ana's restriction as to her use of the property (w),
but without the widow's estate being made, as in Bengal, Madras,
and N.W. Provinces, a type of all inheritance by females (x).
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
the widow, who alone is mentioned by Katyayana as bound 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 Mitakshara doctrine is accepted,
all take a complete estate, especially the widow, who, it is
elaborately proved, takes the whole estate of her deceased
husband (y). If the views of other lawyers prevail, no woman
takes an absolute estate by inheritance. An instance of the
former doctrine already given shows well how it was understood
by the principal commentators on the Mitakshara. A daughter
may thus inherit while many male agnates of the family remain
(r) Ibid., at p. 132.
(s) Ibid., at p. 124.
(t) Ibid., at p. 132.
(v) Gadadhar v. Chandrabhagbai, I. L. K. 17 Bom. 690 (F. B.) ; Motilal t.
Ratilal, I. L. K. 21 Bom. 170, distinguishes the above ruling (21 Bom. 690)
and gives a widow the right to bequeath movables; Harilal v. Pranavladas,
I. L. E. 16 Bom. 229; Bai Jamna v. Bhaishankar, I. L. K. 16 Bom. 233.
(w) Vyav. May., Chap. IV., sec. VIII., paras. 3, 4; Col. Dig., Book V.
T. 399, 402; Daya-Krama-Sangraha, Chap. I., sec. II., paras. 3-6; above,
pp. 287, 291.
(x) See above, p. 295; Col. Dig., Book V. T. 420.
(y) Mit. Chap. II., sec. I., paras. 3-39.
H.L. 21
322 HINDU LAW. [BOOK 1.
who, by her taking an absolute estate, are deprived of their
succession (z).
(z) So the allotment retained for the wife by her husband in a partition
goes to her daughters as Stridhana ; Mit. Chap. 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 marriage is completed. In that case
their brothers of the full blood alone take as heirs ; the property does not blend
again witn the general family estate. Mit. Chap. II., sec. XI., para. 30.
VYAV., CH. I., S. 1.]
XII.— THE DIGEST OF VYAVASTHAS.
INHERITANCE
CHAPTEE I.
HEIRS TO A MEMBER OF AN UNDIVIDED FAMILY.
SECTION 1.— SONS AND GEANDSONS.
Q. 1. — A man of the Sudra caste died. He had the following
relations: — 1 son of the deceased's eldest son, 3 younger sons,
2 brothers, and 1 cousin. The deceased received a cash allowance
from Grovemment on account of certain ' ' Hakka ' ' and Lajima (a)
rights. It is an old ancestral property. How should the certifi-
cate 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 ?
A. — 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 considered 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 deceased. The deceased's own share, which is
^ of ^, should be divided again into four shares, one to be
assigned to his grandson and three to his sons.
Tanna, April Idth, 1852.
Authorities.— (1) Mit. Vyav. f. 50, p. 1, 1. 1; (2) f. 50, p. 1, 1. 7, (see
Auth. 3); (3) f. 48, p. 2, 1. 5 :
(o) Lavajima.
324 HINDU LAW. [BOOK I.
' ' Whatever else is acquired by the co-parcener himself without detriment
to the father's estate, as a present from a friend, or a gift at nuptials, does not
appertain to the co-heirs (Col., Mit. p. 268, Stokes's H. L. B. 384). It devolves
as though there had been a partition (b).
(4) Mit. Vyav. f. 44, p. 2, 1. 13 (see Chap. II., sec. 4, Q. 1).
Ebmarks. — 1. The answer applies equally to the higher castes. Bhalchan-
dra Sastri said the son of the wife first married was to be regarded as the
elder, but this is not warranted by the Mitak. or the Vayav. May. See Steele,
L. C. 40.
2. Por details regarding "indivisible or separate property," see Partition,
Book II.
3. In case the deceased had alone acquired the property in question, it
goes in equal shares to his sons and grandson.
4. An unseparated son excludes separated ones. See Bajee Bapoojee v.
Venoobai. (c)
5. A son born in wedlock is held legitimate though begotten before it. (d)
6. A son may relinquish his share in the common estate for money. He
then takes the place of a separated son. (e)
7. An elder son by a younger wife succeeds to an impartible estate in
preference to a younger son by an elder wife. (/)
8. A joint trade is joint family property (g). See Book II.
9. A joint trade loan is a charge on joint family property, (li)
SECTION 2.— OTHEE MEMBEKS OF AN UNDIVIDED
FAMILY.
Q. 1. — A man got his son married and spent a good deal of
money on his education. The son afterwards emigrated, and was
for a long time in service in another country, where he acquired
considerable property and died. Who will be his heir, his father
or his wife ?
(6) See Musst. Phoolbas Koonwar v. Lalla Jogesher Sahoy, L. K. 4 1. A,,
at p. 19.
(c) S. A. No. 282 of 1871, Bom. H. C. P. J. F. for 1872, No. 41.
(d) Collector of Trichinopoly v. Lakhamani , L. E. 1 I. A., at p. 293.
(e) Balhrishna Trimbak v. Savitribai, I. L. R. 3 Bom. 54 See below,
Chap. II., §1, Q. 6.
(/) Padda Ramappa v. Bangari Sherama, I. L. R. 2 Mad. 286,
ig) Samalbhai v. Someshwar et al., I, L. R, 5 Bom. 38.
(h) 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 Col. Dig., Book I.,
Chap. Y. T. 182, 185, 186.
VYAV.,CH. I., S. 2.]
REMOTE HEIRS.
325
A. — Whatever he may have given to his wife out of affection,
or whatever may be her stridhana, belongs to her. All the rest
of the son's property goes to his father.
Ahmednuggur, September 29th, 1854.
Authorities. — (1) Vyavahara Mayukha, p. 153, 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's H. L. B. 100.)
(2) Vyav. May., p. 161, 1. 1; (3) Viramitrodaya, f. 221, p. 1, 1. 10.
Eemark. — 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. " Property self-
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.
Dharwar, October 10th, 1859.
Authorities.— (1) Mit. Vyav. f. 65, p. 2, 1. 1; (2) Vyav. May. f. 155, p. 4.
Eemark. — All the deceased's property, so far as it is not separate property
(avibhajyam), will go to the father, and be divided between him and his
surviving son on partition. See Question 1.
Q. 3. — If there is an ancestral Inam in the possesion of five
brothers, and some of them die without issue, will the survivors
inherit their shares ?
A. — Yes. — Rutnagherry , September 15th, 1846.
Authority.— Vyav. May. f. 136, 1. 2 :
" Among brothers, if any one die without issue, or enter a religious order,
let the rest of the brethren divide his wealth, except the wife's separate
property." (Borradaile, p. 101, Stokes's H. L. B., p. 85.)
326 HINDU LAW. [BOOK I.
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:th, 1845.
Atjthorities. — (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 hkewise, and
their sons, 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 issue. This rule extends to all (persons
and) classes." (Col. Mit., p. 324, Stokes's H. L. B. 427.)
(3*) Vyav. May., p. 144, 1. 8 :
" Yajnavalkya 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
(A the uterine brother the uterine brother," (Boradaile, p. 112; Stokes's
H. L. B., p. 93.)
Q. 5. — A man died and left an ancestral Watan. Will his
widow or his younger brother inherit it ?
A. — If the property is ancestral, and the brothers were un-
divided, it will belong to the younger brother, though it may
have been entered in the records of Government in the name of
the eldest only. The wife has no right to it (i).
Broach, May 14t/i, 1855.
Authorities.— (1) Mit. Vyav., f. 50, p. 1, 1. 7; (2*) Vyav. May., p. 136, 1. 2.
(See Chap. I., sec. 2, Q. 3.)
(t) A vatan cannot be enjoyed by a female while males of the family claim
it. — Anpoornahai v. Janroio, S. D. A. E. 1847, p. 74, following an interpreta-
tion of 1832 on sec. 20 of Eeg. XVI., of 1827. But the reason there given is
now no longer applicable. A female may succeed, Chap. IV. B., sec. 1,
Q. 12; Bai Suraj v. Government of Bombay et al., and Bapuhhai v. Bat Suraj
et al, 8 Bom. H. C. K. 83 A. C. J.; Bai Jetha v. Haribhai, S. A. No. 304 of
1871 (Bom. H. C. P. J. F. for 1872, No. 38) ; The Government of Bombay v.
Damodhar Permanandas, 5 Bom. H. C. E. 202 A. C. J.; (comp. Keval Ruber
V. The Talukdari Settlement Officer, I. L. E. 1 Bom. 586) ; Sayi Kom Nam
VYAV.,CH. I., S. 2.]
REMOTE HEIRS.
327
Q- 6. — Two brothers, Bhai and Bhaidasa, possessed a village.
They gave to a certain Bhikari Eamadatta four bighas of land for
himself and his heirs. Eama 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 undivided.
The other three sons of Bhikari Eamadatta inherit their brother's
share.
Broach, May 18th, 1855.
Authorities.— (1) Mit. Vyav., f. 45, p. 1, 1. 1; (2*) Vyav. May., p. 136,
1. 2. (See Chap. I., sec. 2, Q. 3.)
Remarks. — The brothers deceased were held to be represented by their sons
in a joint Hindu family in Bhagwan Goolahchund v. Kriparam Anundran (k) ;
Debi Pershad v. Thakur Dial (l) ; Bhimul Doss v. Choonee Lall (m).
In Moro Vishvanath v. Ganesh Vithal (n) it was held that the representation
descends without limit when there is not an interval of more than three genera-
tions 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 brothers died, leaving a
widow. Then the mother of the brothers died. The widow claims
a third of the room as her husband's share. Has she a right to
Powar V. Shrinivasrao 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 favour of the impartibility of Vatan estates. He
who alleges the impartibility must prove it. Adreshappa v. Gurrushidappa,
L. R. 7 I. A. 162, infra, Book II, § 5 C. As to the succession generally
to inams and vatans, see Chap. II., sec. 6 A, Q. 8, Remark; and as to claims
to inclusion amongst the recognised vatandars, see Gurushidag avda v. Rudra-
gavdati et al. (I. L. R. 1 Bom. 531.) In Madras it is said that a woman
cannot hold the office of Karnam except nominally. Venkatratnama v.
Ramanujasami, I. L. R. 2 Mad. 312. She may perhaps appoint a deputy, as
in Bombay, under sec. 51 of the Act above referred to.
(fc) 2 Borr. 29.
(I) I. L. R. 1 All. 105.
(m) I. L. R. 2 Cal. 379.
(n) 10 Bom. H. C. R.
Customary Law, vol. II., p
444.
141.
So in the Panjab ; see Tupper, Pan jab
328 HINDU LAW. [BOOK I.
it? She has given it as Krishnarpana to her daughter's son. Has
she a right to do so?
A. — The widow has no right to any part of the undivided room.
Broach, March nth, 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.)
Eemark. — As to residence in the family dwelling, see above, p. 245, and
Book II., " Property 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 Watan?
A. — A widow without male issue has no right to demand a
share of any Watan, Vritti, or hereditary offices which were
acquired by ancestors, and which were not previously divided.
Ahmednuggur, August 1th, 1854 (o).
Authorities.— (1 and 2*) Vyav. May., p. 136, 1. 6 and 1. 2 (see Chap. I.,
sec. 2, Q. 5).
Remark. — A Hindu widow has no estate in the joint family property (p).
Q, 9. — Four brothers effected a partition and lived separate
from each other. As usual, a house, some ground, and other
immovable property remained undivided. Two of these brothers
died. The question is whether or not the share of the immovable
property should be made over to the widows or to the surviving
two brothers.
A. — The widows of the deceased brothers cannot claim the
ivhole of the shares of their husbands, but they should be pro-
(o) The right to a vritti (upadhyaya) being established in a family, a fresh
cause of action arises on each infringement of the right by a rival family.
Divakar Vithal JosJii v. Harhhat bin Mahadevhhat, Bom. H. C. P. J. F. for
1881, p. 106.
(p) Lalluhhai v. Raval Bapuji, Bom. H. C. P. J. for 1880, p. 243; Antaji
Raghunath v. Pandurung , P. J. 1879, p. 478.
VYAV., CH. I., S. 2.]
REMOTE HEIRS.
329
vided with a suitable residence. The rest of the immovable
property will fall to the two surviving brothers.
Ahmednuggur, January 5th, 1849.
Authorities.— (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.
Kemark. — The Sastri means that to the portion left undivided the ordinary
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 (q).
2. When two united brothers successively die, each leaving a widow ajid
no children, the widow of the last deceased brother takes the property, the
widow of the first deceased being entitled only to maintenance (r). For the
share of an undivided co-parcener, who leaves no issue, goes to his undivided
co-parceners, whether the property is ancestral or acquired by the co-parcenera
as joint estate [s).
Q. 10. — A man had three sons. One of them died without
issue. He and his two brothers had not divided their ancestral
property. Although the deceased had left a widow, the certificate
of heirship was given to his two brothers. 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 expense is required
for the marriages and subsequent ceremonies. The widow who
(g) See Mangala Dehi v. Dinanath Bose, 4, Ben. L. R. 72 0. C. J. ; Talemand
Singh v. Rukmina, I. L. R. 3 All. 353 ; Parvati Kom Balapa v. Kisansing bin
Jaising, Bom. H. C. P. J. F. for 1882, p. 183.
(r) Musst. Surajmookhi Koonwar v. Musst. Bhagavati Koonwar, Privy
Council, 8th Feb. 1881.
(s) Radhahai v. Nanarav, I. L. R. 3 Bom. 151.
330 HINDU LAW. [BOOK I.
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 (t).
Burnt, March 17th, 1858.
Authorities. — (1) Mit. Vyav., f. 55, p. 2, 1. 10 (see Auth. 3); (2) Mit. Vyav.,
f. 48, p. 1. 1. 9; (3*) Vyav. 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 property belonging
to her deceased husband. The brother-in-law had lived apart
from his deceased brother for about twenty-five years. A division
of the family property had not, however, taken place. Can the
widow claim a share?
A. — 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 husbaad without making use of the
property of his ancestors, she can claim it from her brother-in-
law.
Authorities. — (1) Vyav. May., p. 136, 1. 4 :
" But if her husband 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" (v). (Borradaile, p. 102; Stokes's H. L. B. 85.)
(2) Vyav. May. p. 136, 1. 2 (see Chap. I., sec. 2, Q. 3).
(t) The custom of the City of London and of other places reserves the chief
room in the family dwelling as the widow's chamber. See Elt. Ten. of Kent.,
pp. 42, 173; and below, Chap. II., sec. 7, Remarks.
(o) 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 explanation, which in
the Mayukha follows this text, the word avarudha is wrongly translated by
" a woman set apart." It means " a concubine."
VYAV.jCH. I., S. 2.] REMOTE HEIRS. 831
Q. 12. — Two brothers of the Kanoji caste were undivided. One
of them died, leaving a widow. The other brother does not main-
tain her, nor does he assign to her any property to live upon.
Who has, under the circumstances, 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 if 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's H. L. B. 85 (see
Chap. I., sec. 2, Q. 3).
Remark.— See above, Section on Maintenance, p. 246 ss.
Q. 13. — 1. There are three brothers, whose property is un-
divided. It consists of an office of priest called the " Yajamana
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 office of a priest held, by a
deceased in an undivided state ?
4. Supposing the above-mentioned property was divided, which
of the two relatives above named would be entitled to inherit it?
A. — 1. If one of the three brothers whose property was un-
divided 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 Sastra 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.
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*
332 HINDU LAW. [BOOK I.
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 divided in
interest his sister's son inherits his share ; as long as the sister's
son is alive the cousin's son cannot succeed.
Surat, October 18th, 1845.
Authorities.— (1*) Vyav. May., p. 136, 1. 2 (see Chap. I., sec. 2, Q. 3;
<2*) Mit. Vyav., f. 56, p. 2, 1. 1 (see Chap. 1., sec. 2, Q. 4).
Eemarks. — Ad. 3. The undivided co-parceners alone inherit the deceased's
share. (Auth. 1.)
Ad. 4. The cousin's son inherits the deceased's property, in preference to
the sister's son, since he is a " Gotraja Sapinda," connected by funeral obla-
tions with, and a member of, the same family as the deceased, whilst the
sister's son is only a Bhinnagotra Sapinda. (Auth. 2.) See also Introductory
Note to Chap. II., sec. 15 — § 6. The Sastri seems to have been steeping his
mind in Bengal law. See H. H. Wilson's Works, vol. V., p. 14.
I
Q. 14. — There were four brothers who divided their movable
property and left the immovable undivided. The immovable
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 father's share?
A. — She cannot obtain it. It goes to the other undivided
relations.
Ruinagherry, January 1th, 1853.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 46, p. 2, 1. 14;
(3*) Mit. Vyav., f. 51, 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).
Kbmark. — The Sastri has not distinguished 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 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
VYAV.,CH. I., S. 2.] REMOTE HEIRS. 333
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 (see Chap. I., sec. 2, Q. 3);.
(2) Mit. Vyav., f. 51, p. 1, 1. 9 (see Chap. I., sec. 2, Q. 17).
Remark. — The property promised must not have been disproportionately
great. Vyav. May., Chap. IV., sec. X., pi. 5, 6; above p. 205.
Q. 16. — Three brothers died. One of them left a grandson, 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, 10th September, 1852.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2*) p. 136, 1. 2 (see Chap. I.,
sec. 2, Q. 3); (3*) Mit. Vyav., f. 51, p. 1, 1. 9 (see Chap. I., sec. 2, Q. 17).
I
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. Conse-
quently 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*) Mit. 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 own share." (Colebrooke,.
Mit., p. 286; Stokes's H. L. B. 398.)
Remark. — The position of all daughters of undivided co-parcenei-s is the-
same as that of sisters. Nephews represent their fathers. See cases referred
to below (w).
(to) Bhagwan Goolahchund v. Kriparam Anundram et al., 2 Borr. R. 29;
Nurbheram Bhaeedas v. Kriparam Anundram, ibid. 31. Comp. p. 98, note (wi).
above.
334 HINDU LAW. [book I.
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?
A. — 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 14t/i, 1855.
Authorities. — (1) Mit. Vyav., f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
<2) f. 60, 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
undivided 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.
Rutnagherry , July ISth, 1847.
Authority.— Vyav. May., p. 136, 1. 2 (see Chap. I., sec. 2, Q. 8).
Remark. — 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 inherit the
estate ?
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 12th, 1847.
Authorities. — (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2*) Vyav, May., p. 136,
1. 2 (see Chap. L, sec. 2, Q. 3).
Remark. — 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
exclusion of deceased's widow.
VYAV.,CH. I., S. 2.] REMOTE HEIRS. 835
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.
Ahmednuggur, 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. 51, p. 1, 1. 7 (see Chap. H.,
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 receives the
proceeds of her share of the estate. The woman and her husband
have been living separate from their cousin for about seventy-five
years. The immovable property has not been divided. The
woman has sued her cousin for a division of the immovable
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 continued 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 immovable property. The
objection of her cousin, founded on the apprehension 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.
Ahmednuggur, 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).
Kemark. — 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 Book II., sec. 4 D. The right which the Sastri
ascribes to the woman to alien the property is not generally recognised. (See
above, p. 283 as.)
336 HINDU LAW. [BOOK I.
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 21st, 1856.
Authorities. — (1) Vyav. May., p. 136, 1. 2 (see Chap. I., sec. 2, Q. 3);
(2) f. 136, 1. 4. - 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.
Surat, 1845.
Authorities. — (1*) 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-nephew lived
together as an undivided family. They hold Yardi and Kulkami
Watans. Can the paternal grand-aunt claim a share of the
Watans, or cply 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. 3)
(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. Vyav. f. 16, p. 1, 1. 6; (8)
t 69, p. 1, 1. 1.
Remark. — See p. 246, supra, and Chap. VI., sec. 3 c, Q. 6, below.
VYAV., GH. I., S. 2.]
REMOTE HEIRS.
337
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. 's
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
B.'s grandson sued A.'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
twenty or twenty-five 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.'s son. The claim of B.'s
grandson is therefore admissible.
Ahmednuggur, November 1st, 1849.
Authorities.— (1) Mit. Vyav., f. 53, p. 2, 1. 6; (2) f. 51, p. 1, 1. 3; (3)
f. 50, p. 1, 1. 1; (4*) f. 44, p. 2, 1. 14 (see Chap. II., sec. 4, Q. 1); (5) Vyav.
May., p. 102, 1. 4; (6) p. 110, 1. 6; (7) p. 100, 1. 1; (8) p. 142, 1. 8.
H.L.
22
3H8 HINDU LAW. [BOOK I.
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 considered the son's
guardian during his minority?
A. — His son will be his heir, and his widow, during his 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 living and their male issue) are
heirs to the deceased."
" The production of children, the nurture of them, when produced, and the
daily superintendence of domestic affairs are peculiar to the wife."
Remarks. — 1. The son would of course not be separated from his father,
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 son born after partition is sole
heir to the shares reserved for the father and the mother (x).
Sir H. Maine explains the law of Borough-English (y) by supposing it
originated in a preference given to the youngest unemancipated son who
remained under the patria potestas over those who were presumably separated.
Under the Hindu law the preference arises from the union 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 (z).
(x) Mitakshara, Chap. I., sec. VI., para. 1. ss.
iy) Early History of Institutions, pp. 222, 223.
(z) Jussoda Kooer v. Lallah Nettya Loll, I. L. R. 5 Cal. 43.
VYAV., CH. II., S. 1.] SON BY BIRTH, LEGITIMATE.
339
Q. 2. — Should the eons, who are minors, or the widow, or the
brothers of a deceased Sudra, be considered his heirs.?
A. — All of them have a right to the property of the deceased,
but the sons are his heirs.
Poona, June 23rd, 1845.
Authorities. — (1*) Manu IX., 185 (see Chap. II., sec. I., Q. 1); (2*) Mit.
Vyav., 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 hundred 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." (Colebrooke, Mit., p. 285; Stokes's H. L. B. 397.)
Kbmark. — The sons are their father's heirs, and the widow is entitled to
maintenance, or, if the sons divide, to one full share of the property, provided
she had received no Stridhana. (See Book II., and above pp. 64, 163.)
Q. 3. — A man of the Mahar caste expelled his wife from his
house. His eon went out with her. The husband afterwards
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?
A. — The son of the deceased will be his heir, and not the
person nominated.
Authorities. — (1*) Dattaka Mimamsa, 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 Kunbi brought up a son of another Kunbi, and trans-
ferred to him his immovable property. It accordingly passed
into the possession of the foster-son. A son was afterwards born
to the Kunbi. This son and the foster-eon lived separate from
each other for many years. The son has now sued the foster-son
for the recovery of the immovable property given to him by the
Kunbi. Can he do so, and within what time should the suit be
brought? Can the possession of the property be disturbed after
the lapse of thirty years ? If the father and his foster-son should
have improved and taken care with trouble and expense of the
340 HINDU LAW. [BOOK I.
immovable property in question, cannot the foster-6on have some
claim to it?
A. — A son is entitled to three-fourths of the property which his
father may have transferred to his adopted son before the birtli
of his son. The adopted son will only be entitled to one-fourth,
provided his adoption has been performed with the due cere-
monies and sacrifices by the adoptive father. The Sastra 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 immovable property for twenty years and of any movable
property for ten years without any objection or demand from the
owner, he cannot be obliged to pay the income, but the right to
the immovable property is never lost.
The foster-son mentioned in the question should be allowed to
hold such things as he may have received from his foster-father
as tokens of his affection, provided they are becoming his rank in
society, and not unjustly oppressive to the son. If the foster-son
was bom 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 affection-
ately gives as a son, being alike (by class) and in a time of distress, confirming
the gift with water." (Borradaile, p. 66; Stokes's H. L. B. 58.)
(3) Vyav. 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. 51, p. 1, 1. 3; (9) f. 55, p. 1, 1. 11;
(10) Mann IX., 185 (see Chap. II., sec. 1, Q. 1).
Eemark. — It must be noted that the question refers to the relative rights
of a son, and a foster-son, not an adopted son, in which case a different rela-
tion of right would arise. (See section 2.)
2. If the father should have parted with ancestral property for valuable con-
sideration, and not for a palpably immoral purpose, the son would be bound
by such alienation, according to Narayanacharya v. Narsoo Krishna (a). This
case, and the ones cited in it, are discussed with reference to the Hindu law
of Bombay in Book II.
(a) I. L. K. 1 Bom. 282. See also above, pp. 203, 204.
VYAV., CH. II., S. 1.] SON BY BIRTH, LEGITIMATE. 341
Q. 5. — A. died, leaving a son B., by his first wife, and a second
wife C. Does A.'s 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 C.
will such occupation give C. 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 stepmother may at the time be in occupation of a
portion of the house, she cannot on that account be considered
to have any right to such portion.
Surat, April 6th, 1846.
AuTHOEiTiES.— (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).
Remark. — The stepmother can, however, claim maintenance, (Auth. I.)
and residence. (See above, p. 245, and Book II.)
Q. 6. — A. had a son B. by his first wife. B. separated from
his father A., who married a second wife C. On the death of A.,
if B. pays A.'s debts will B. or will C. be A.'s heir? If B. is
A.'s heir, then is C. entitled to a share of A.'s property, or can
she claim only a maintenance out of A.'s estate?
A. — B. will be heir to his father A. ; but if A. has assigned to
C, any stridhana this stridhana will belong to C, and besides, so
long as she behaves chastely and lives under the protection of B.
she should be allowed maintenance.
Ahmednuggur, April 21st, 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. 1, 1. 1 (see Chap. 11. , sec. 1, Q. 2);
(5) Manu IX., 185 (see Chap. II., sec. 1, Q. 1).
Remark. — A prior separation and renunciation of rights by a son does not
deprive him, on his father's death, of his right of inheritance (b).
2. Ramappa Naicken v. Sithammal (c) establishes (reversing the judgment
of Mr. Bumell, the District Judge) that a separated son inherits before the
father's widow. To the same effect is the judgment in Advyapa bin Dundapa
y.Dundapa bin Andaneapa (d).
3. See p. 246 ss.
(b) Balkrishna Trimbak Tendulkar v. Savitribai, I, L. R. 3 Bom. 54.
Comp. Viner's Abridgment, Extinguishment, Co. Litt. 7 6, 8 b, 237 b; see
above, p. 57.
(c) I. L. R. 2 Mad. 182.
id) Bom. H. C. P. J. F. for 1881, p. 48.
342 HINDU LAW. [BOOK I.
Q' 7. — A Eangari (dyer) put away his wife and his son by her,
after which he lived for several years with a concubine, 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?
A. — The son is entitled to inherit his father's movable and
immovable property, though he may have lived separate from
him. The kept woman and her daughter are not the heirs of
the deceased. ,
Poona, September 11th, 1849.
Kheda, May 18th, 1848.
Authorities.— (1) Manu 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. 1, Q. 1).
Q. 8. — If a " Lingayat " die, will his widow or his son inherit
his house?
A. — The son is the rightful heir to the father's movable and
immovable 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 effected a division of his property among
his sons, or a share (to be) reserved by the sons when sharing the
property among themselves.
Ahmednuggur, September 2nd, 1850.
Authorities.— (1) Mit. Vyav., f. 46, p. 1, 1. 9; (2) f. 20, p. 1, 1. 6;
(3) f. 33, p. 1, 1. 3; (4) Vyav. May., p. 89, 1. 2 and 6 ; (6) p. 108, 1. 3; (6) p. 90,
1. 2 and 3; (7) p. 94, I. 7; (8) p. 95, 1. 5; (9) p. 151, 1. 2; (10) p. 175, 1. 3;
(11) Manu IX., 185 and 163 (see Chap. II., 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 C, who had been married before. B. and C.
survived A. Has C. any right to a share of the immovable
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
VYAV., CH. II., S. 1.] SON BY BIRTH, LEGITIMATE. 343
virgin when he married her, can have no right to any share of
his property.
Tanna, September 2&th, 1852.
Authorities.— Mit. Vyav., f. 54, p. 2, 1. 16; (2) f. 55, p. 2, 1. 1;
(3) Manu IX., 163 and 185 (see Chap. II., sec. 1, Q. 7, and Q. 1).
Remark. — As the second marriage of a Hindu female has been legalised by
Act XV., of 1856, it seems that the widow can claim maintenance under Mit.
Vyav., f. 69, p. 1, 1. 1 (see Chap. II., sec. 1, Q. 2 ; and above, pp. 82, 83).
Q. 10. — A Hindu died, leaving a widow and a son, which 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 2&th, 1848.
Authorities.— (1) Mit. Vyav., f. 51, p. 1, 1. 7; (2) Manu IX., 186 (see
Chap. II., sec. 1, Q. 1); (3) Mit. Vyav., f. 69, p. 1, 1. 1 (see Chap. II., sec. 1,
Q. 2).
Remark. — The widow could not claim such a division, nor any separate
share, against the will of the son. (See Book II.)
Q. 11. — A deceased person has left two sons and a widow.
Will the widow be entitled to a share of her husband's property
in the same manner as the sons?
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 t^ke place.
Dharwar, November 29th, 1850.
Authority.— Mit. Vyav., f. 51, p. 1, 1. 7 (see Chap. II., sec. 1, Q. 2).
344 HINDU LAW. [BOOK I.
Q. 12. — A 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 husband'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 word for Stridhana), her share will be equal
to one-half of that which falls to one of her sons.
Broach, June Srd, 1848.
Authorities.— (1) Mit. Vyav., f. 51, 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 pro-
perty, 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's
H. L. B. 51.)
Kbmark. — In case the mother possesses separate property, the amount of her
share will depend on the amount of her stridhana. (See Auth. 2.)
Q. 13. — Can a widowed sister without male issue claim from
her brother a share of her father's property, and has she any
right to live in her brother's house?
A. — The sister has no right to any share of the property, nor
to a residence in her brother's house.
Ahmednuggur, August 1st, 1847.
Authority. — Manu IX., 185 (see Chap. II., sec. 1, Q. 1).
Remark.— Colebrooke recognised a widowed sister's claim in a case of desti-
tution- (See above, p. 241.)
Q, 14. — A man died, leaving two sons, one of whom paid all
his father's debts. Is he alone, on this account, entitled to
inherit the property of his father, or have both sons equal 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 con-
WAV., CH. II., S. 1.] SON BY BIRTH, LEGITIMATE. 345
sidered the owner of the whole. If he 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.
Ahmedabad, June 25th, 1858.
Authorities.— (1) Vyav. May., p. 181, 1. 5 ; (2) Mit. Vyav. f. 47, p. 2, 1. 13 :
" Let sons divide equally both the effects and debts after (the demise of)
their two parents." (Colebrooke, Mit. p. 263; Stokes's H. L. B. 381.)
Remark. — 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 much as covers what he has
expended in excess of his proper share of the debts.
Q. 15. — A. died, leaving his widow B., his sons C. and D., and
C's wife E. Which of these is his heir? After the death of A.,
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 C. ? If D. had
property, and, while the family was still undivided, D. died,
which of the two widows, B. and E., would succeed to it? If A,
left a house as the common property of the family, which of the
two widows B. and E. would be entitled to occupy? A.'s house
was sold by B. without the consent of E. Is the sale valid?
A. — C. and D. are the heirs of A. 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 individual may conclude a donation, mortgage, or sale of
immovable property, during a season of distress, for the sake of the family,
and especially for pious purposes." (Colebrooke, Mit., p. 257; Stokes's
H. L. B. 376.)
Remark.— The last passage is intended as an answer to the last of the series
of questions proposed.
346 HINDU LAW. [BOOK I.
Q. 16. — Are all the sons of a man equally entitled to inherit
the immovable 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 immovable 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^ 17. — 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.
E. is entitled to a maintenance only.
Surat, September IQth, 1846.
Authorities. — (1) Vyav. May., p. 94, 1. 1 :
" In wealth acquired by the grandfather, whether it consist of movables or
immovables, the equal participation of father and son is ordained." (Borra-
daile, p. 57 ; Stokes's H. L. B. 51.)
(2) Vyav. May., p. 136, 1. 4 (see Chap. I, sec. 2, Q. 11). See infra, Book II.,
sec. 6 B.
Remark. — As to the maintenance of the widow, see sec. X; above, p. 239;
and Book II., 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 the 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 property.
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).
Remark. — The father, being united, succeeds according to the authorities
cited (see above, Book I.) if the son of the deceased was separated. Otherwise
the son takes his father's place in union with his grandfather.
VYAV., CH. II., S. 2.] ADOPTED SON. 347
Q. 19. — A man had two sons. The father divided his property
between them, and reserved a portion for himself. He had after-
wards 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 bom after the
division. The sons who separated cannot claim any portion of
this property. The son bom after the division will be entitled to
it, and will be also liable for such debts of the father as he may
have contracted since the separation of his two sons.
Paona, August 20th, 1857.
Authorities. — (1) Vyav. May., p. 99, 1. 4 (see Auth. 2); (2*) Mit. Vyar.,
f. 50, 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 father and
mother.' " (Colebrooke, Mit., p. 281; Stokes's H. L. B. 394.)
SECTION 2.— ADOPTED SON (e).
Q. 1. — A person adopted his sister's son's son, but became
aft^erwards displeased with him. He made a will bequeathing his
property to his adopted son and several brothers. Can he dis-
tribute his property in this manner, and is an adopt-ed son liable
to his natural father's debt?
A. — 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
(c) An adopted son competing with one begotten takes one-fourth as much,
Ayyavu Muppanar v. Niladatchi et al., 1 M. H. C. R. 46. Adoption causes
a complete severance from the family of birth, Shrinivas Ayyangar v. Kuppan
Ayyangar, 1 M. H. C. R. 180; Narsammal v. Balarmacharlu, ibid. 420.
I
348 HINDU LAW. [BOOK I.
adopted son. A son given in adoption is not responsible for the
debt of his natural father.
8adr Adalat, May 25th, 1824.
Authorities. — (1*) Dattakamimamsa, p. 36, 1. 10 (see Chap. II., sec. 2,
Q. 3) ; (2*) Manu IX. 142 :
' ' A given son must 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." (See Vyav. May., Chap. IV.,
sec. v., para. 22.)
Eemark. — As to the will, see Book II., Chap. I., sec. 2, Q. 8, Eemark ; and
above, p. 214.
Q. 2. — Can a man set aside an adoption duly solemnised?
A. — It cannot be set aside without sufficient grounds.
Poona, October 21th, 1854.
Authority.— *Datt. Mim., p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3).
Eemark. — " Without sufficient grounds " — that is, unless the son shows
such physical or moral defects as would make the rules of disinheritance
applicable.
Q. 3. — A man adopted a son. The adoptive father afterwards
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 should in the above case
be allowed a portion of the property, which, together with her
'* Stridhana," will make up a share equal to that which the
adoptive son receives.
Sadr Adalat, June 25th, 1827.
Authorities. — (1) Vyav. May., p. 94, 1. 8 (see Chap. II., sec. 1, Q. 12);
(2) Mit. Vyav., f. 51, p. 1, 1. 7 (see Chap. II., sec. 1, Q. 2); (3*) Datt. Mim.,
p. 36, 1. 10 :
" Therefore Manu says, ' an adopted son who possesses all the qualities
VYAV., CH. II., S. 2.] ADOPTED SON. 349*
(requisite for an heir) inherits (his adoptive father's estate), though he may
have been adopted from another family (gens).' "
Remarks. — 1. The adopted son inherits his adoptive father's property.
2. The passage quoted by the Sastri, 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 Raje Vyankatrav v. Jayavan-
irav if) operates retrospectively, and relates back to the death of her husband.
But the Hindu Law does not allow this principle to 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 " (g) without his consent?
A. — When a son is adopted he becomes the owner of the
property of his father. A woman, therefore, has no right to 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.
Poona, June 20th, 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 unauthorised alienation (h). But he
is bound by one for a recognised necessity (i). He is also bound by one made
before his adoption to pay off a debt of the widow's deceased husband (k).
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 himself of the propriety of the transaction. Ram Dhone
if) 4 Bom. H. C. R. 191 A. C. J.
ig) " Partnership," a letting on terms of a division of the produce.
(h) The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 M. I. A.,
at p. 443.
(i) See Bamundoss Mookerjea v. Miisst Tarinee, 7 M. I. A., at pp. 178, 180,
185, 206.
(k) Satra Khumagi et al. v. Tatia Hanmantrao 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. Musst. Tarinee, 7 M. I. A., at pp. 178, 180, 185,
and Manikmulla v. Parhuttee, C. S. D. A. R. for 1859, p. 515; Maharajah
Juggernaut Sahaie v. Musst. Muckun Koomwar, Cal. W. R. 24 C. R. ; Ram-
hhat V. Lakshman Chintaman, I. L. R. 5 Bom., at p. 635.
350 HINDU LAW. [book I.
Bhuttachargee v. Ishanee Dahee (l) ; Rajlakhi Dehia v. Gakul Chandra
Chowdhnj (m) ; C. Colum. Comara Vencatachella v. R. Rungasawmy (n) ;
Dalpatsing v. Nanabhai et al. (o) ; The Collector of Madura v. Mootoo Rama-
linga (p) ; Bamandas v. Musst Tarinee (g) ; and Nathaji v. Hari (r). 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 (s), on
the other hand, cited in I. L. E. 2 Cal. 307, an alienation for value was
upheld ; and in a later judgment (t) 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 (v) 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 left by the widow of
another uncle, the subsequent adoption did not relate back so 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 adoption. Whether an adoption by one
widow annulled a prior conveyance of her estate by another was a question
sent back for trial in Bahaji v. Apaji (w). 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 inconsistently 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 Shid-
dheshvar v. Ramachandrarao (x), 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
accordance with the mortgage ; but it was held that there could be no ratifica-
tion of what had not been done professedly on account of the principal, and
that mere quiescence of the owner would not validate unauthorised 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. Bat Ganga (y) 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 on account of the guardian's not having obtained
a certificate of administration under Act XX. of 1864 ; but as the sale had
(l) 2 C. W. E. 123 C. E.
(m) 3 B. L. E. 57 P. C.
(n) 8 M. I. A., at p. 323.
(o) 2 Bom. H. C. E. 306.
(p) 12 M. I. A. 443.
iq) 7 M. I. A. 169.
(r) 8 Bom. H. C. E. 67 A. C. J.
is) 24 C. W. E. 183.
(t) Rally Prosonno Ghose v. Gocool Chundre Hitter, I. L. E. 2 Cal. 307.
iv) I. L. E. 7 Cal. 178.
(to) S. A. No. 190 of 1877; Bom. H. C. P. J. F. for 1877, p. 269.
(x) I. L. E. 6 Bom. 463.
iy) 8 B. H. C. E. 31 A. C. J.
VYAV., CH. II., S. 2.] ADOPTED SON. 351
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.)
3. For the conditions limiting a widow's power to adopt in Bombay, see
Ramji valad Narayan v. Ghamau Kom Jivaji {z) 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.
Ahmednuggur, October 16th, 1851.
Authorities.— (1) Datt. Mim., p. 1, 1. 3 and 11; (2*) p. 36, 1. 10 (see
Chap. II., sec. 2, Q. 3) ; (3) Vyav. May., p. 104, 1. 7 ; (4) p. 105, 1. 6 ; (5) 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?
A. — 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.
Ahmednuggur, March 14:th, 1856.
Authorities.— (1) Vyav. May., p. 102, 1; 4; (2) p. 110, 1. 6; (3) Mit. Vyav.,
f. 61, p. 1, 1. 9 (see Chap. I., sec. 2, Q. 17); (4*) Datt. Mim., p. 36, 1. 10
(see Chap. II., sec. 2, Q. 3).
Q. 7. — A Brahman 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
(z) Bom. H. C. P. J. F. for 1882, p. 141.
352 HINDU LAW. [BOOK I,
poseession. The adopted son should make a suitable provision
for the support of his mother, and the mother should remain
under the control (a) of her son, who should have the manage-
ment of all the movable and immovable property.
Ahmednuggur, October 17th, 1845.
Authority.— *Datt. Mim., p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3).
g. 8. — A woman after the death of her husband adopted a son.
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 1st, 1852.
Authorities.— (1) Mit. Vyav., f. 54, p. 2, 1. 16; (2*) Datt. Mim. p. 36, 1. 10
(see Chap. II., 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 sue his adoptive
mother for the possession of the property?
A. — The adoptive mother can be sued on the agreement, but
she can still claim a maintenance.
Poona, November 5th, 1852.
Authorities.— (1) Viram. f. 121, p. 1, 1. 10; (2) p. 2, 1. 14; (3*) Datt. Mim.,
p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3).
Q. 10. — Can an adopted son of a woman claim the property in
her possession ? A part of the property was acquired by her and
the rest by her husband.
A. — The portion of the property which was acquired by the
woman is her " Stridhana," of which she alone is the owner.
(a) See above, p. 246 ss.
VYAV., CH. II., S. 2.] ADOPTED SON. 353
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 immovable property, but
not to mortgage or dispose of it.
Rutnagherry , February 20th, 1845.
Authorities.— (1) Mit. Vyav., f. 61, 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 :
(Yajnavalkya.) " What was given to a woman by the father, the mother,
the husband, or a brother, or received by her at the nuptial fires, or presented
to her on her husband's marriage to another wife, or else any other (separate
acquisition), is denominated a woman's property.". . . (Vijnanesvara). And
on account of the word " adyam " (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's H. L. B. 458. Translation revised according to note in 1st edition
of this work, q. v. See above, pp. 259 ss.)
Eemark. — The adopted son takes the whole of his adoptive father's property.
(See Chap. II., sec. 2, Q. 3.)
Q. 11. — A woman has adopted a son. She is possessed of
some movable and immovable property. Is she or her adopted
son the owner of the property?
A. — 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 " Stridhana " only.
Ahmednuggur, August ISth, 1849.
Authorities.— (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, 1. 6;
(7) p. 103, 1. 7; (8*) Datt. Mim., p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3);
(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?
A. — The sister's son adopted by the widow is legally entitled
H.L. 23
354 HINDU LAW. [book I.
to the Watan of his adoptive father. The cousin, therefore, can-
not disturb his possession.
Ahmednuggur, April 12th, 1856.
Authority.— *Datt. Mim., p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3).
Q. 13. — A person having lost his first adopted son adopted
another, and the wife of the deceased adopted one also. How
will the two adopted sons share the family property?
A. — Equally.
Tanna, June 12th, 1858.
Authorities. — (1) Mit. Vyav., f. 50, p. 1, 1. 7 (see Chap. II., sec. 4, Q. 2);
(2) f. 50, p. 2, 1. 3.
Eemark. — The adoption by the widow of the deceased son, it was answered
in one case (No. 1666 MSS), would hold good notwithstanding a prior adoption
by her father-in-law. An adoption by her alone is to be preferred (No. 1660
MSS).
Q. 14. — A man adopted a son, but afterwards he had a son
born to him. He separated from his adopted son, giving him a
share of his property. The man and his son subsequently died.
The widow* of the son married another husband. The adopted
son and a " Pat " widow of the adoptive father are the only
persons who claim to be the heirs of the adoptive father. Which
of these is tiie heir?
A. — The adopted son.
Dharwar, January ISth, 1859.
Authorities. — (1) Vyav. May., p. 134, 1. 4; (2*) Viram., f. 194, p. 2, 1. 4
(see Chap. II., sec. 6a, Q. 14); (3*) Datt. Mim., p. 36, 1. 10 (see Chap. II.,
sec. 2, Q. 3).
Q. 15. — A man first adopted a son and afterwards he had a son
bom to him. How will they share the man's property?
A. — The adopted son is entitled to one-fourtih of the share of
the son.
Dharwar, September 10th, 1847.
VYAV., CH. II., S. 2.]
ADOPTED SON.
355
Authority. — Vyav. 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; Stokes's H. L. B. 66.)
Eemark. — On the death of an intestate a contest arose between his adopted
son and the adopted son of his natural son. The Court held that their rights
were equal. Raglioohanand Doss v. Sadhuchurn Doss (h). 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 his father, in competition with whom the father's adoptive brother
would take only half a share.
Q. 16. — If a son is bom to a man after he has adopted one,
what portion of his property should be given to the adopted son?
A. — The property should be divided into five shares, one share
should be given to the adopted and four to the begotten son.
Sadr Adalat, 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 Patil adopted a son, afterwards a son was bom 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 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 Patil 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.
Dharwar, December Srd, 1858.
Authorities.— (1) Mit. Vyav., f. 53, p. 2, 1. 6; (2*) f. 55, p. 1, 1. 11 (see
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).
Eemarks. — 1. If the son bom after adoption was born from a Pat wife he
would, in the higher castes, and except by custom in the lower also (being
under the Hindu Law considered illegitimate), be excluded. But as the
illegitimate son of a Sudra he will, according to Authority 3, receive one-third
(b) I. L. E. 4 Cal. 425.
356 HINDU LAW. [book I.
of the property. But see also Chap. II., sec. 3, Q. 16, and Remarks on the
same question.
2. If a legitimate son be born after the adoption has taken place the adopted
son receives a fifth of the deceased's estate, according to the preceding ques-
tion. According to the Mit., Chap. I., sec. XI., p. 24, the adopted son takes a
fourth part.
Q. 18. — A. an Agarvali, had no children, but he brought up one
B. as his foster son. A.'s mistress had a son C. before she was
kept by A., and C. accompanied his mother when she went to
live in A.'s house, and took A.'s name. On the death of A.
will B. or C. succeed to his property?
A. — A.'s 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*) Datt. Mim., p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3);
(2*) Vyav. May., p. 102, 1, 2 :
" Here we must remark that, with the exception of the son given (all other)
secondary sons are set aside in the Kali (or present) age." (Borradaile, p. 66;
Stokes's H. L. B. 58.)
Remark. — B. will inherit only if he was formally adopted ; Bashettiappa v.
Shivalingappa (c) ; Nilmadhah Das v. Bisswamhhar Das et al. (d).
Q. 19. — A Koli A. had nephews, but they were separated from
him. He had no son of his own, but he brought up B, 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 B. or to his nephews?
A. — If B. was adopted by A. he will be his heir. If B. was
not adopted, but only brought up as a foster child by A., then his
nephews, though separated from him, will inherit his property in
preference to B.
Ahmednuggur, February 21st, 1846.
Authorities.— (1*) Datt Mim., 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).
(c) B. H. C. P. J. F. for 1873, p. 162.
(d) 3 B. L. R. 27 P. C.
VYAV., CH. II., S.3.] ILLEGITIMATE SON. 357
Q. 20. — A., a Sudra, 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 his death, bequeathed a portion of
his property to B. Is B. entitled to 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
J^ . 's cousins ?
A. — If B. 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 A.'s property will pass
to his blood relations.
Ahmednuggur, January 17th, 1848.
Authorities. — (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. 54, p. 1,
1. 3 and 13; (6) f. 53, p. 2, 1. 6; (7) f. 64, p. 2, 1. 13; (8) f. 61, p. 1, 1. 3;
(9) f. 60, p. 1, 1. 1; (10) Datt. Mim., p. 36, 1. 10 (see Chap. II., sec. 2, Q. 3).
SECTION 3.— ILLEGITIMATE SON.
Q. 1. — Can a son of a Sudra 's female slave be his heir?
A. — The son of a female slave is the heir of a Sudra.
Ahmednuggur, September SOth, 1846.
Authority. — *Mit. Vyav., f. 55, p. 1, 1. 11 :
■' Even a son begotten by a Sudra 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's son." (Colebrooke, Mit., p. 322;
Stokes's H. L. B. 426.)
Kemarks.— See Rahi v. Govind (e), Narayanbharti v. Lavingbharti (/), and
Inderun Valungypooly Taver v. Ramasawmy (g).
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 exist. Thus amongst the
Khonds the so-called wife is bought from her father and carried off by
(e) I. L. E. 1 Bom. 97.
(/) I. L. E. 2 Bom. 140.
(g) 13 M. I. A. 141; S. C. 3 B. L. E. 4 P. C.
358 HINDU LAW. [book I.
force (h). She can leave her husband when she will, her parent being then
bound to repay her price. Amongst some classes in Kangra a purchased widow
is reckoned a " wife " without further ceremony (i). The custom of some
castes in Gujerat allows the woman to leave the man and to form a connection
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 (k), though the erring wife may be divorced in
the sense of being disgraced and kept apart. It could not, therefore, treat
with respect connections in which there was no religious compunction of sacra,
no recognition of an indissoluble bond, no procreation of children to fulfil the
sacrificial law. The British Courts give effect to many unions as marriage
which are almost entirely w'anting 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 have 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 (l).
Baudhayana makes mere sexual association a lawful union for Vaisyas and
Sudras, "for," he says, " Vaisyas and Sudras 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 offered to the gods or the
manes. Kasyappa has pronounced her a slave." — Transl., p. 207. (See above,,
pp. 80, 264.)
3. An illegitimate son was preferred to a widow and daughter in Sadu v,
Baiza and Genu (m). (See below, Q. 12.)
Q. 2. — Can an illegitimate son of a Brahman claim a share
from his legitimate brother?
A. — No, he cannot have any share. He can only claim that
which his father may have expressly given to him.
Ahmednuggur, February 15th, 1851.
(h) See Eowney, Wild Tribes of India, p. 103.
(i) See Panj. Cust. Law, II. 184.
(k) See above, p. 84, and below, sec. 6 b Introd. Remarks.
(l) See Mathura Naikin v. Esu Naikin, I. L. R. 4 Bom. 545, 565, 570;
Rowney, op. cit. p. 136, 139, 190, 204; Steele's Law of Castes, 32, 33, 170, 171,
172, 173. Lord Penzance in Mordaunt v. Mordaunt, L. R. 2 P & D., at
p. 126; Lush, L.J., in Harvey v. Farnie, L. R. 6 P. D., at p. 53.
(wi) I. L. R. 4 Bom. 37, S. C. ; Bom. H. C. P. J. F. 1879, p. 509.
VYAV., CH. II., S. 3.] ILLEGITIMATE SON,
359
Authorities.— (1) Vyav. May., p. 99, 1. 1 (see Auth. 3); (2) p. 98, 1. 4;
(3) Mit. Vyav., f. 65, p. 1, 1. 15 :
" From the mention of a Sudra in this place (it follows that) the son 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 after his demise " (n). (Colebrooke,
Mit. p. 323; Stokes's H. L. B. 426.)
Kemark. — See above, p. 255.
Q. 3. — A Marwadi has a son by a woman either kept or pur-
chased as a slave. Can the woman or the son be his heir?
A. — If the Marwadi is a Sudra, his illegitimate son will be his
heir. If he is not a Sudra, and if he has not made a gift of his
property to any one, the Sirkar should take his property after
paying for his funeral rites and the maintenance 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 him or her.
Ahmednuggur, February 2Srd, 1847.
Authorities.— (1) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1);
(2) f. 67, p. 1, 1. 6 :
"It is said by Katyayana that heirless property goes to the king, deducting,
however, a subsistence for the females (o) as well as the funeral charges; but
the goods belonging to a venerable priest let him bestow on venerable priests."
(Colebrooke, Mit. p. 335; Stokes's H. L. B. 435.)
(3) Vyav. May., p. 236, 1. 61 ; (4) p. 98, 1. 6; (5) Manu IX. 155.
(n) 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 English law of Glanville's time allowed a father to give to an illegiti-
mate son a share of the patrimony which he could not give to a younger
legitimate son without the consent of the heir. (See Glanville, 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 Hindu
Law see below, Q. 8.
(o) According to Vijnanesvara, "females" here means "concubines"
(averuddha). If a patni wife survived, the property would not be heirless.
360 HINDU LAW. [BOOK I.
Q. 4. — When a deceased Pardeshi (p) has no nearer heir than
a son of his kept woman, can such a person be his heir?
^.— Yes.
Poona, August nth, 1847.
Authority.— *Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Remark. — "Yes," if the son is his own also, and if deceased belonged to
the Sudra caste.
Q. 5. — A person permitted his illegitimate son to live in one of
his houses. This person and his descendants occupied the house
for several years. They repaired, improved, and divided it among
themselves. Can the house be claimed by the legitimate heirs of
the original owner, and how many years' possession constitutes a
prescriptive title?
A. — A man of the Sudra caste having legitimate and illegiti-
mate sons, can transfer his real or personal property to the latter.
The legitimate heirs cannot cancel such a transfer. The period
necessary to constitute a prescriptive title is not fixed in the
Sastras.
Ahmednuggur, May 26th, 1847.
Authorities. — (1) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1);
(2) f. 55, 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, 1. 2.
Remarks. — 1. A Sudra cannot transfer his entire property to his illegitimate
children if he has legitimate sons. He can only give equal portions to the
legitimate and illegitimate heirs. See, however. Book II., Chap. I., sec. 2;
above, p. 206.
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 latter 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 (g). 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 (r). (See above, p. 255.)
(p) " Pardeshi," Paradesi (lit. foreigner) is used in the Dekhan to denote
any Hindu who has immigrated from some other part of India, especially from
Hindustan, whatever his caste may be.
(q) Kesaree ct al. v. Samardhan et al., 5 N. W. P. R. 94.
(r) Raja Parichat v. Zaliin Singh, L. R. 4 I. A. 159.
VYAV., CH. II., S.3.] ILLEGITIMATE SON. 361
3. According to the Mitakshara, contrary to Yajnavalkya and Narada, 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., " Will to effect a
SEPARATION."
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?
A. — As the deceased was separate from his relatives, and as he
was of the Sudra caste, his. illegitimate son will be heir. But as
the illegitimate son is a minor under the protection of his sister
she may have the charge of the property on his behalf.
Nuggur, November 1st, 1845.
Authority.— *Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Q. 7. — A man of the Mali caste left a son by a kept woman,
and this son claims a share in certain land which is in 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.
Nuggur, September 12th, 1845.
Authority. — *Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Kemark. — If there be no legitimate sons, daughters or daughter's sons, the
illegitimate son of a Sudra succeeds, taking precedence of a legitimate son's
daughter (s).
Q. 8. — A Mohatur-widow of a man of the Mali caste sued his
kept woman for a house belonging to her husband. The widow,
while her husband was alive, lived separately from him for about
twelve years. During all this time she was supported by her own
(s) Sarasuti v. Mannu, I. L. R. 2 All. 134.
According to the law of the Lombards the legitimate sons excluded illegiti-
mates, but were compelled to provide them and their own sisters with portions.
362 HINDU LAW. [BOOK I.
labour. It is not said that her character 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 main-
tenance to the widow.
Ahmednuggur, March ISth, 1848.
AUTHORITY. — *Mit. Yyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Kemarks. — 1. A Mohatur-widow is a widow who had been married twice.
2. For the preference of the illegitimate son to the widow, see p. 79 s.
Q. 9. — A man, deceased, of the Sudra caste, had two sons, one
legitimate and the other illegitimate. The former died, leaving a
widow. The deceased had a house, and the question is, who shall
inherit it?
A. — The daughter-in-law has a right to a maintenance only.
The illegitimate son will inherit the property of his father.
Ahmednuggur, October SOth, 1856.
Authorities. — (1) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap II., sec. 3, Q. 1) ;
(2) f. 12, p. 1, 1. 16; (3) Mit. Achara, f. 12, p. 1, 1. 4; (4) Yyav. May., p. 134,
1. 6; (5*) p. 136, 1. 4 (see Chap. I., sec. 2, Q. 11).
Remark. — The illegitimate son of a Sudra is entitled to half the share of a
legitimate son, Dhodyela et al. v. Malanaik, S. A. No. 243 of 1873 (t) in
Bombay and Madras (v), if there be a legitimate son, daughter, or grandson.
Failing these, he may inherit the whole. Mit., Chap. I., sec. 12, pi. 1 ss.
See Salu v. Hari (w), Gopal Narhar v. Hunmant Ganesh Saffray (x), Sarasuti
V. Mannu (y).
Q. 10. — A Sudra A., who was possessed of an open piece of
ground suited for building purposes, died, leaving two sons. One
of these, B., was a legitimate son, and the other, C, was either
(t) Bom. H. C. P. J. F. for 1874, p. 43.
iv) 2 Str. H. L. 70.
(w) H. C. P. J. for 1877, p. 34.
(x) I. L. R. 3 Bom. 273, 288.
iv) I. L. R. 2 All. 134.
VYAV., CH. II., S.3.] ILLEGITIMATE SON. 363
an illegitimate son or else his foster son. On the death of A. will
the piece of ground belong to B. alone or will it belong to C. ? If
C. is entitled to a share of it, to what share is he entitled?
A. — In the Sudra caste both legitimate and illegitimate sons
succeed to their father's immovable 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 illegiti-
mate son will be entitled to one-third and the legitimate son to
two-thirds of the whole property left by the father.
Ahmednuggur, March 14:th, 1855.
Authority. — Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Eemarks. — 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. (See
above, p. 192; Mit., Chap. I., sec. XII., para. 1.)
2. If C. is a " foster son," and has not been formally adopted, he receives
nothing.
I
Q. 11. — A., a tailor, died, leaving a legitimate son B. and an
illegitimate son C. Are B. and C. entitled to equal shares of the
movable property and of the Watan of A., or can C. claim no
share at all? On the death of B. will C. be the heir* to the
Watan, or will it pass to the distant relatives of A.? Is B.
competent to will away on his death-bed the Watan to distant
members of his family, to the prejudice of C. ?
A. — B. is entitled to three-fourths of the property of A., and C.
to one-fourth. If B. die, leaving neither a widow nor a son nor
a daughter, his Watan and other property will pass to C. If
B. and C. have separated, then B. is competent to transfer his
property to his other relations instead of to C.
Ahmednuggur, December 13th, 1847.
Authorities.— (1) Vyav. May., p. 83, 1. 3; (2) p. 99, 1. 1 (see Auth. 4);
(3) p. 196, 1. 4; (4*) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1) r
(5) f. 68, p. 2, 1. 16 :—
" Property, except a wife and a son, may be given without prejudice to (the
interest of) the family. But the whole estate may not be given if there is
living issue, nor that which has been promised to anybody."
Remark.— According to the Eemark to Q. 5 and the Answer to Q. 10, the
illegitimate son would be entitled to one-third of the whole estate. It is,
■364 HINDU LAW. [BOOK I.
however, possible to interpret the expression " half a share," which Yajna-
valkya uses in the passage bearing on this point (Authority 4), in the sense
also which has been given to it in the answer to Q. 11. For Vijnanesvara,
when discussing the allotment of a " fourth of a share " to a daughter of a
per&on leaving sons, states that the property is to be divided first into as many
shares as there are daughters 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
iidopted son. (See Chapter II., sec. 2, Q. 16 and 17.)
Q. 12. — A man of the Sudra caste died, leaving a widow and
lier 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 should 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 " or
■" Pat " ceremony, but is kept by a man as a concubine from her
childhood, is called a " Dasi," and a son of a " Dasi " can inherit
the property of his father when there is no legal widow, son,
daughter, or daughter's son [z). In the present case the illegiti-
mate son appears to be the nearest heir of the deceased. The
separated legitimate member of his family cannot therefore claim
his property.
Poona, October 9th, 1857.
Authority. — Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Remark. — The illegitimate son would inherit the whole estate of his father
according to the Mitakshara (see Q. 8), even though a widow of the latter
might be living ; but here the estate having descended to the two sons jointly
(see Q. 10), or to the legitimate son, subject to the illegitimate's right to half
a share, the Sastri was not justified in treating the case as if the father had
died leaving only the illegitimate son. In Baiza et al. v. Sadu, S. A. No. 74
of 1876, there was a difference of opinion as to whether legitimate and illegiti-
mate sons could be coparceners. In appeal by Sadu it was held that he the
illegitimate and his legitimate half-brother were coparceners (a). In the same
{z) This is the doctrine of the Dattaka Chandrika, sec. V., para. 31. For
the Mitakshara see below, Q. 18.
(o) Sadu V. Baiza, I. L. R. 4 Bom. 37.
VYAV., CH. II., S. 3.] ILLEGITIMATE SON. 365
case it was admitted in argument that the widow was entitled only to main-
tenance. In Madras Mr. Ellis (2 Str. H. L. 66) thought that illegitimate sons
of Sudras might take equally with legitimate sons, but this does not appear
to be the accepted rule even there (ibid. 70). Illegitimate sons by the same
mother inherit inter se as brothers, Maynabai et al. v. Uttaram et al. (b), 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 recognised between
the legitimate and the illegitimate sons of Sudras. The Brahma Purana,.
quoted by the Viramitrodaya, Tr. p. 120, says that Sudras are incapable of
having a son (putra) in the proper sense, as " a slave, male or female, can
have only slave offspring." (See above, p. 77 ss., and Q. 1 and 8.) The
subsidiary sons in the order of their preference exclude those lower in.
the scale (Mit., Chap. 1, sec. 11; Narada, p. II., Chap. XIII., pi. 22, 25,
33, 49). In the answer to Q. 11 above the Sastri assumes that they may
form a united family. On the other hand, Macnaghten, 1 H. L, 18, seems to
rank the illegitimate as a co-heir only with a daughter's son, though he recog-
nises his right to a half share where there are legitimate sons. In Bengal it
has been said by Mitter, J., in Narain Dhara v. Rakhal Gain (c) that only the
son of a Sudra by his (unmarried) female slave has any right of inheritance,,
and the Mitakshara, Chap. I., sec. 12, is cited in support of this doctrine. A
kept woman is for this purpose, however, regarded as a slave. (See Datt.
Mimam, sec. 4, pi. 76; Steele, L. C. 41; 2 Str. H. L. 68). In the case of
Rahi V. Govind (d) the position of the illegitimate son is learnedly discussed,,
but not with reference to this particular question.
Q. 13. — A Sudra who held a Patilki 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 between,
the daughter and the illegitimate son in the proportion of two-
thirds to the daughter and one-third to the son.
Poona, September Ath, 1852.
Authority.— Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1 :.
Stokes's H. L. B., p. 426).
(6) 2 M. H. C. K. 196.
(c) I. L. K. 1 Cal. 1, 5.
366 HINDU LAW. [BOOK I.
Q. 14. — A Eajput brought a woman into his house. It is not
known whether she was legally married to him or not, either by
way of " Lagna " or " Pat." She has two sons and a daughter.
The Rajput and she quarrelled, the consequence 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 ascertained whether this woman either
was married to him or not. He had three sons and a daughter by
this woman. Some people say that up 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 affirm 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 Sudra 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 21st, 1847.
Authorities. — (1) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1) ;
(2) f. 5, p. 1, 1. 5; (3) f. 51, p. 1, 1. 3 and 7 ; (4*) Viramitrodaya, f. 172, p. 2,
1. 13 :
" But when the father divides his estate during his lifetime he ought 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
a Sudra. 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 connection with other men
than their father after their birth.
4. In case the deceased was a Sudra, 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. See also
€hap. VI.
(d) I. L. E. 1 Bom. 97.
VYAV., CH. II., S. 3.] ILLEGITIMATE SON. . 367
Q. 15. — A Sudra has a grandson, the son of his legitimate son.
He has also an illegitimate son. The Sudra, when he was alive,
bestowed a house and some other property on the illegitimate
son. Should this be considered a legal gift?
A. — A father may allow his illegitimate son a share equal to
that which he assigns to his legitimate son. If the partition takes
place after the father's death the illegitimate son can claim only
one-half of that which the legitimate son receives. This is the
established rule of the Sastra. The illegitimate son, therefore,
should be allowed to enjoy whatever his father may have bestowed
upon him.
Khandesh, September 24:th, 1852.
Authority. — Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Remark. — The gift will, however, be valid only if the illegitimate son has
not received more than the legitimate son's child did.
Q. 16. — A Patil 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 eon was born 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 Patil 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.
Dharwar, December Srd, 1858.
Authorities.— (1) Mit. Vyav., f. 53, p. 2, 1. 6; (2*) f. 55, p. 1, 1. 11 (see
Chap. II., sec. 3, Q. 1); (3*) Vyav. May., p. 108, 1. 2 (see Chap. II., sec. 2,
Q. 16) ; (4*) p. 112, 1. 2 :
" From this text of Vasishtha : When a son has been adopted, if a legitimate
son be afterwards born the given son takes a fourth part (of a share).'
Borradaile, p. 76; Stokes's H. L. B. 66.
I Remarks. — 1. If the deceased was a Sudra his son begotten on a Punarbhu
(twice-married woman) will, according to the Hindu Law, inherit one-half of
a son's share (see Auth. 2), since a second marriage is null, and the ofiPspring
consequently illegitimate, according to the Sastras. 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
368 HINDU LAW. [book I.
To the same effect are the passages in the General Notes I. and VI. That a
re-marriage is not allowed by the Mitakshara is stated by Colebrooke,
2 Strange, H. L. 399; and Strange himself pronounces against its legality,
1 Strange, H. L. 242. The Nirnayasindhu, quoted beneath (Chap. II., sec. 8,
Q. 6), declares that the re-marriage of a once-married woman is not allowed.
The Viramitrodaya quotes the Adipuran to the effect that the re-marriage of a
woman once married is, along with the killing of kine, the partition with
specific deductions, and the niyoga, disallowed in the present (Kaliyuga)
age (e).
But that re-marriages, though disapproved, were practised at the time of the
composition of Manu's Code is plain from Manu IX. 175, 176. A woman thus
associating with a second husband is distinguished by Yajnavalkya (I. 68)
from the svairini 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
(Yajn. II. 129 ss, cited in Mit., Chap. I., sec. 11, 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 re-marriage of widows and divorced wives has always been
common. The Sastri, in answer to Q. 37 of sec. 4, has even said that the
Sastris sanction a "Pat " marriage. This is contradicted in the next answer,
but caste custom might itself be regarded as approved by the Sastras according
to the often-repeated formula (Manu VIII. 41), and on this ground probably
it has been recognised in most cases, as may be seen in sec. 6 b below. In
Ch. IV. B, sec. 4, there is a case in which the Sastri pronounces a woman's
son by her first marriage heir to the property which she had inherited from her
second husband. The children by a " Pat " marriage are generally regarded
as legitimate, where the marriage is allowed. (See Steele's Law of Caste, 169.
See also Manu V. 162, 157 ; IV. 175, 176 ; General note at the end of translation
of Manu, I. and VI.)
2. By Act XV. of 1856 the son of a Punarbhu is legitimised by the sanction
given to the second marriage of his mother. The offspring of an adulterous
intercourse, even amongst Sudras, has no right of inheritance. See Datti
Parisi Nayudu et al. v. Datti Bangaru Nayudu et al. (/) and the case of Rahi
V. Govind (g) in which the law is fully discussed ; see also Viramuthi Udayana
y. Singaravelu (h); see, too, Narayan Bharthi v. Laving Bharthi (t). The
same cases, however, show that the illegitimate son is in all cases entitled to
maintenance. Nor has the offspring of an incestuous intercourse between a
father-in-law and daughter-in-law any rights of inheritance (k).
3. If legitimate sons are born to a man after he has adopted a son, the
adopted son inherits a fourth of a son's share on the demise of the father
(Auth. 3).
(e) Tr. p. 61.
(/) 4 M. H. C. E. 204.
(g) I. L. K. 1 Bom. 97.
(h) I. L. E. 1 Mad. 306.
(t) I. L. E. 2 Bom. 140.
(/c) 4 M. H. C. E. 204, supra.
VYAV., CH. II., S. 3.] ILLEGITIMATE SON. 369
Q. 17. — A decased person has some relations who are 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 allowed equal
shares of the property.
Dharivar, 1846.
AuTHOKiTY.^*Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Eemarks. — 1. According to the Hindu law, apart from customary exceptions,
the son of a Punarbhu (re-married widow) is illegitimate, and consequently
inherits, if there be living legitimate issue of his father, half a share. See
Katyayana in Smriti Chandrika, Chap. V., p 10; 2 Str. H. L. 68, 70; Col.
Dig., Book v.. Text 174.
2. Regarding the legislation of widows' re-marriages, see Q. 16.
3. Children by " Pat " are equally legitimate with those by marriage,
according to Col. Briggs, Steele, 169. See infra, Chap. II., sec. 8, Q. 6.
Q. 18. — A man married a woman who had been previously
married, and by her had a son. At his death can the son of such
a wife inherit his immovable property?
A. — If a man died leaving neither son nor daughter by the wife
whom he married as a virgin, nor the son of such a daughter, the
son of the previously married wife will succeed to his immovable
property.
Dharwar, July 26th, 1850.
Authority. — Mit. Vyav., f. 65, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1).
Remarks. — 1. This stamps him as illegitimate in the opinion of the Sastri;
and Ballambhatta, commenting on Mit., Chap. II., sec. 1, 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, being illegitimate, will succeed only
in case the deceased was a Sudra. See 2 Str. H. L. 65, 68.
3. Regarding the legalisation of the marriage of a Hindu widow, see Act XV.
of 1856. See also Q. 16.
H.L. 24
370 HINDU LAW. [book I.
SECTION 4.
GRANDSONS.— LEGITIMATE, NATURAL OR ADOPTED.
Q. 1. — A man's son died, leaving a son. The man himself 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 property 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.
Surat, June 5th, 1857.
Authorities. — (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 his sons or
grandsons, and that is an inheritance not liable to obstruction." (Colebrooke,
Mit., p. 242; Stokes's H. L. B. 365.)
(2) Mit. Vyav., f. 60, 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 considered the heir
of the deceased, the adopted grandson or the widow?
A. — The adopted grandson.
Tanna, November 15th, 1851.
Authorities.— (1) Mit. Vyav., f. 50, p. 1, 1. 7 :
" For the ownership 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, Mit., p. 277; Stokes's H. L. B. 391.)
(2) Mit. Vyav., f. 63, p. 2, 1. 6 ; (3) Manu IX. 141.
Eemark. — A great-grandson in the male line precedes a daughter's son,
Gooroogohindo v. Hureemadhah (I).
(I) I. Marsh. 398.
VYAV.,CH. II., SS. 5, 6 A.] WIDOW — MARRIED AS VIRGIN. 371
SECTION 5.
ILLEGITIMATE SONS' SONS.
Q. 1. — A man of the Sudra caste has a daughter, a separated
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 11th, 1849.
Authorities.— (1) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1) ;
(2*) f. 44, p. 2, 1. 13 (see Chap. II., sec. 4, Q. 1).
Eemark. — The grandson inherits the half of a share to which his father was
entitled.
SECTION 6.— WIDOW (m).
A. — Married as a Virgin.
Q. 1. — A man who used to receive from Government an allow-
ance called " Toda Gras," died without issue. He has left a
widow. Should the allowance be paid to her as it was paid to her
husband ? Can she claim any property in addition to the Pallu or
Stridhan which she may have received at the time of her
marriage ?
A. — When the deceased man is a separated member of a family,
and when he has left no children, his widow will be the heir to
his property. If she has received any Stridhana or Pallu on the
occasion of her marriage, it cannot be considered 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.
Surat, February 26th, 1848.
(m) The Smriti Chandrika, Chap. XII., para. 31, relying on a passage of
Sankha (see Daya-Bhaga, Chap. XI., sec. 1, para. 15), places the widow of a
reunited coparcener after the brother, father, and mother. The Vyav. May.,
Chap. 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., Chap. XII., sec. 5, para. 38),
quoted on the same subject, places the widow next after the children.
372 HINDU LAW. [book I.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 66, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — See Pranjiwandass v. Devkuvarhai (n) and the Introduction,
sec. 3 B (4), and sec. 11, pp. 88, 299, 295.
As to payment of debts to the widow empowered or directed to adopt, see
Bamundass v. Musst. Tarinee (o), and for the case of a widow, the real heir,
and another person holding a certificate of administration, see Purshotam v.
Ranchhod (p).
That a widow represents the estate as between her successors and strangers,
see above, p 88, and Nand Kuhar v. Radha Kuari (q).
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 (r).
The presumptive heir cannot maintain a suit for a declaration of his right.
See Greeman Singh v. Wahari Loll Singh (s), where it is said that the Specific
Belief Act (I. of 1877), § 42, 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 Dahee v.
Sourohinee Dahee, I. L. R. 7 Cal. 288.
In Gujarath caste custom in some cases gives the mother precedence over the
widow, as ex. gr. in the cases in Borr. C. Rules, MS. Book G, Sheets 42, 50.
See above, p. 162.
Careful provision is made by the rules of most of the castes in Gujerath 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 inheritance
differing from the general custom of the country, see Russic Lai Bhunj et al.
V. Purush Munee, 3 Mor. Dig. 188, and note 2 (t).
Q. 2. — Four 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
(n) 1 Bom. H. C. R. 130.
(o) 7 M. I. A. 169.
(p) 8 Bom. H. C. R. 152, A. C. J.
(q) I. L. R. 1 All. 282.
(r) Hari Vydianathayanna v. Minakshi Animal, I. L. R. 5 Mad. 6, referring
to The General Manager of the Raj Durhhunga v. Maharaja Coomar Ramaput
Singh, 14 M. I. A. 605, and Isham Chunder Mitter v. Buksh All Soudagur,
Marsh. R. 614. In a note to the report reference is made to Zalem Roy v. Dal
Shahee, ihid. 167.
(s) I. L. R. 8 Cal. 12.
(t) With this may be compared the privilege allowed to the noble class in
Germany of making special laws by a family compact.
VYAV., CH. II., S. 6 a.] widow MARRIED AS VIRGIN. 373
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 widow is
therefore entitled to it. The minor must be considered as sepa-
rated, though he chose to live with his eldest brother.
Dharwar, August 28th, 1855.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) f. 55, p. 2,
1. 1 (see Chap. I., sec. 2, Q. 4).
Kemark. — A wife is, under the Hindu Law, in a subordinate sense, a co-
owner with her husband ; he cannot alienate his property or dispose 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 without maintenance, that the donee took and held such
estate subject to her maintenance (v).
Q. 3. — A woman's husband and father-in-law are dead. She
has possession of their property. Should her right of inheritance
be recognised?
^.— Yes.
Dharwar, 1845.
Authority. — *Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Remark. — The widow inherits under the text quoted above, only in case her
father-in-law died before her husband. Regarding the other alternative, see
Chap. II., sec. 14, and above, p. 116.
Q. 4. — A man died. His proprety 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 claim the
property ?
A. — The widow has the right to the property of her husband.
(v) Jamna v. Machul Sahee, I. L. R. 2 All. 315. See also Narhadahai v.
Mahadeo Narayan, I. L. R. 5 Bom. 99. Comp. above, p. 205.
374 HINDU LAW. [book I.
She can therefore claim it on her own account, omitting the name
of her daughter.
Sural, January 24:th, 1853.
Authorities. — (1) Vyav. May., p. 134, 1. 4; (2) Mit. Vyav., f. 55, p. 2, 1. 1
(see Chap. I., sec. 2, Q. 4).
Q. 5. — A man named Bhagavandas Devakar, separated from
his brother. He received his share of the landed property and
had his name registered in the records of Government as the
owner of it. On his death his wife, named Amrita, got her name
registered in the records of Government as the owner of the land.
She then leased 8f bigas of land to her nephew, Khushal Eag-
hunatha. He accordingly 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 Bhagavandas. The
widow, Amrita, wishes to recover the land from her nephew. Can
she do so?
A. — The widow of the deceased Bhagavandas has a right to the
land. Her nephew cannot claim it. Amrita may recover it from
him.
Broach, September 8th, 1855.
Authority. — Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 6. — There were four brothers. They divided their ancestral
property among them and separated. Afterwards 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 desires 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 Sastra on the subject?
A. — 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 claim the right of inheritance. The widow cannot dispose
VYAV., CH. II., S. 6a.] widow MARRIED AS VIRGIN. 375
of her immovable property unless she be placed under a great
necessity.
Rutnagherry , January 11th, 1848.
Authorities.— (1) Vyav. May., p. 136, 1. 4; (2) p. 135, 1. 2 :
" As for this text of Katyayana : After the death of her husband the widow,
preserving (the honour) 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, mort-
gage, or sale; it is a prohibition of a gift of money, or the like, to the Vandi (w),
Charana {x), and the like (swindlers). But a gift for religious objects (not
visible, that is, the attainment of spiritual benefits), and mortgage or the like,
suitable (that is, with a view) to those objects may be even made." (Borra-
daile, p. 101; Stokes's H. L. B. 84).
(3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks. — See above, p. 285. A Hindu widow must, if she can, pay a
debt of her deceased husband even though barred by limitation. She is justified
in aliening part of the estate for this purpose; Bahala Nana v. Parhhu Hari (y).
A widow's needless alienation will subsist during her own life. Pragdas v.
Harikishen (z).
At Allahabad it has lately been said that a widow's power of alienation for
spiritual purposes is limited to those by which her husband, as distinguished
from herself, will benefit (a). For this reference is made to The Collector of
Masulipatam v. Cavaly Vencata Narrainappah (h). In Bombay her right,
though limited, is not so narrowly restricted by the Vyav. Mayukha, Chap. IV.,
sec. VIII., para. 4; and the Courts have allowed her a reasonable liberty of
disposal for pious objects (c).
In Kameshwar Pershad v. Run Bahadur Singh (d) the Judicial Committee
says the principle laid down in Hunooman Persaud v. Mt. Babooee Munraji is
applicable to : (a) alienation by a widow of her estate of inheritance ; (b)
transactions in which a father, in derogation of the rights of his son, under
the Mit. law has made an alienation of ancestral family estate.
Q. 7. — Two persons, A. and B., inherited a house in equal
shares from a common relation. A. then mortgaged his share of
the house, and died. After his death B. redeemed the mortgage
and transferred the whole house to his creditor as security for a
(w) A Vandi is a wandering minstrel (Bhata).
(x) Charana, a juggler (Kolambi).
iy) I. L. E. 2 Bom. 67.
(z) I. L. K. 1 All. 503.
(a) Puran Dai v. Jai Narain, I. L. E. 4 All. 482.
(6) 8 M. I. A. 520.
(c) See above, pp. 91, 285.
id) I. L. E. 6 Cal. 843; S. C. L. E. 8 I. A. 8.
376 HINDU LAW. [book I.
debt. After some time B. paid off this debt and regained
possession of the house. C, the widow of A., 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 C. had for many years
lived separate from her husband A. C. has made over her share
of tJie house to a person in consideration of money advanced by
him for her support. She has no male issue. Is she, under
these circumstances, entitled to recover a half of the house
from B. ?
A. — C.'s husband was possessed of one-half of the house which
he mortgaged. When B. redeemed A.'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
Sastras C. has no right to make over the half of the house, even
for her own maintenance, without paying her husband's debts [e).
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.
AuTHOEiTiES.— (1) Mit. Vyav., f. 20, p. 1, 1. 2; (2) f. 20, p. 2, 1. 11; (3) f. 45,
p. 1, 1. 5; (4) f. 66, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4); (5) f. 55, p. 2, 1. 8;
(6) f. 69, p. 1, 1. 16 ; (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's H. L. B. 56) (/).
(9) Vyav. May., p. 183, 1. 8.
Eemarks. — 1. If the house was divided the widow inherits her husband's
share. See Authority 4.
2. Her silence at the time when her brother-in-law paid off the mortgage
does not affect her rights, according to the Mitakshara.
3. She will have to refund the money which her brother-in-law paid.
(e) So in Lakshman v. Satyahhamahai, I. L. R. 2 Bom. 499, per Sir M. R.
Westropp, C. J.
(/) See supra, i. 245, and infra, Book II., sec. 7 A. 1 a (2). By the
11th Article of Magna Charta the widow's dower was freed from charge-
ability 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 fulfilment 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
VYAV., CH.II., S, 6 a.] widow MARRIED AS VIRGIN. 377
Q. 8. — An Inamdar died without male issue. Is the Inam land
which he held continuable to his widow according to the Hindu
law? If a Hindu should die without a son, leaving descendants
only through his daughter, will his private property fall to them,
or to his other relations, or to his widow ? Are the rules on these
subjects applicable 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 fall 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 Hindus.
Poona, October 6th, 1849.
Authorities.— (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).
Eemarks. — There are no special rules about Inam-land in the Hindu Law
Books. The Privy Council, in Bodhrav Hanmant v. Narsingrav (g) held that
Inam villages granted to a man and his male heirs are not distinguishable,
according to the law of the Southern Maratha 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 desgat watan, in
Kadapa v. Adrashyapa (h), 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 mirasdars holding rights of permanent occupancy
subject only to reasonable rates or rents. And in different parts of his manor
he may have different rights under the same grant or prescriptive title, owing
to the existence of rights (as to hold at an invariable rent) known or presumed
to have been prior in origin to his own (i).
3. The Vatandar Joshi (astrologer holding an hereditary office) of a village
husband's lands. Under the Mohammedan Law the doweress ranks pari passu,
it is said, with other creditors; see Mir Mahar Ali v. Amani, 2 Ben. L. E. 307,
and Musst Bebee Bachun v. Sheikh Hamid Hossein, 14 M. I. A. 377. She has
not a special lien constituting an interest in immovable property; Mahahubi v.
Amina, Bom. H. C. P. J. F. for 1873, p. 34. A Jewess claiming under a deed
was preferred to subsequent creditors in Sookhal v. Musst. Raheema,
2 Borr. R. 687.
(g) 6 M. I. A. 426.
(h) R. A. No. 30 of 1874; Bom. H. C. P. J. F. for 1875, p. 182.
(t) Prataprav Gujar v. Bayaji Namaji, I. L. E. 3 Bom. 141, referring to
Lakshman v. Ganpatrav, Special Appeal No. 344 of 1876, and Vishnuhhat v.
Bahaji, Bom. H. C. P. J. 1877, p. 146. (At p. 142 of the Report the last case is
twice mentioned by mistake for the former.) See also Parshotam Keshavadas
V. Kalyan Rayji, I. L. R. 3 Bom. 348.
378 HINDU LAW. [book I.
may recover damages from an intruder who usurps his functions and takes his
fees. This is so even though the fees be not precisely fixed in amount, provided
only that some reasonable fees must be paid by those entitled to the Joshi's
ministrations (k). The presumption 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 recognised as one of public interest to
the Hindu community, the holder of it can of course be constrained, if neces-
sary, 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 pro-
ceedings for enforcing the duties resting on the incumbent or the trustees,
subject to the consent of the Advocate-General or his substitute (usually the
Collector of the district), under sec. 539 of the Code of Civil Procedure (l).
4. In Narain Khootia v. Lokenath Khootia (m) it was apparently held by the
Deputy Commissioner that a religious grant made by a former Maharaja 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 (n), though not of religious grants in
Western India (o). The decree of the Deputy Commissioner, however, was
reversed by the High Court of Calcutta on the ground that impartibility of the
raj did not make it inalienable as to gra s of land in perpetuity, (See above,
pp. 154, 185, 191.)
Q. 9. — A man of the Burud caste (p) 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 use of
his father's property will pass to his widow. If the father and
his sons are not separate, then the common property will pass
into the hands of the father.
Ahmcdnuggur, August 21st, 1848.
Authorities.— (1) Vyav. May., p. 134, 1. 4 & 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).
Eemark. — Kegarding the definition of " separately acquired property," see
Partition, Book II.
(k) Vithal Krishna Joshi v. Anant Ramchander, 11 Bom. H. C. E. 6,
quoting Sitaramhhat v. Sitaram Ganesh, 6 Bom. H. C. R. 250, A. C. J. ; Raja
valad Shevappa v. Krishnahhat, I. L. R. 3 Bom. 232.
(I) See Radhahai v. Chimnaji, I. L. R. 3 Bom. 27.
(m) I. L. R. 7 Cal. 461.
(n) Sir T. Munro, by Sir A. Arbuthnot, Vol. I., pp. 152, 154.
(o) The Collector of Thana v. Hari Shitaram, I. L. R. 6 Bom. 646; Elph.
Hist, of Ind., Book 11. , Chap. II., pp. 75, 78 (3rd edition).
(p) The Buruds are basket-makers.
VYAV., CH. II., S. 6 a.] widow — MARRIED AS VIRGIN. 379
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 oth, 1846.
Authority.— *Mit. Vyav., f. 56, 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 deceased 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 succeed to her husband's, and consequently to her father-
in-law's estate. If she be not a woman of good character her
father-in-law's brother takes the whole property of his deceased
brother, and gives his daughter-in-law a reasonable sum for
maintenance.
Ahmednugugr , September lih, 1848.
Authorities.— -(1*) Mit. Vyav., f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2) Vyav. May., p. 134, 1. 4 (see Auth. 1); (3) p. 133, 1. 2; (4) p. 134, 1. 6;
(5) p. 137; 1. 3; (6) p. 136, 1. 7; (7*) p. 133, 1. 7 :
... by reason of this text of Katyayana : " Let the widow succeed to
her husband's estate provided she be chaste; and in default of her the daughter
inherits, if unmarried."
" Among the married ones, when some are possessed of (other wealth) and
others are destitute of any, these (last) even will obtain the estate." (Borra-
daile, p. 103; Stokes's H. L. B. 86.)
Remark, — 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. Book I.,.
Chap. VI., sec. 3.
Q. 12. — Two uterine brothers lived as an undivided family. One
of them died, leaving a widow. Afterwards 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 man, and as the family was undivided, the widows cao
380 HINDU LAW. [book I.
inherit the shares of the property belonging to their respective
husbands.
Surat, March 31st, 1845.
Authority not quoted.
Eemark. — 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 in interests.
When one of them or both die will their widows be entitled to
their property?
A. — If the family was united in interests the property of a
deceased brother falls to the surviving brother. Upon 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 lltji, 1858.
Authorities.— (1) Mit. Vyav., f. 65, 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 Hindu brothers lived together. The elder of them
died, leaving a widow. The younger also died, leaving a widow.
The qustion is whether the widow of the brother who died first or
the widow of him who died afterwards 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*) Viramitrodaya, f. 194, p. 2, 1. 4 :
" And thus Narada says : After the death of the husband (the nearest rela-
tion 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
VYAV., CH. II., S. 6 a.] widow MARRIED AS VIRGIN. 381'
husband's family is extinct, no male, no supporter has been left, and no
Sapinda relations (of the husband) remain, in that case (the nearst relation)
belonging to the widow's father's family has power over her."
Eemark. — 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 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, 1852.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 140, 1. 1;:
(3*) p. 136, 1. 4 (see Chap. I., sec. 2, Q. 11); (4*) Mit. Vyav., f. 65, p. 2, 1. 1
(see Chap. I., sec. 2, Q. 4).
Eemarks. — 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 movable and immovable
property. His widow and brother claim to be his heirs. Who
shall 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 (q).
Rutnagiri, 1847.
Authorities. — (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) A childless Hindu 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 Kuar v. Chain'
Sukh, I. L. E. 3 All. 400.
382
HINDU LAW,
[book
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 were [un] divided in interests
nor that the father had given them the house in gift. From this
omission it may be inferred that the brothers were separated. Th.i
portion of the house which belonged to each of the separated
brothers becomes, on his death, the property of his wife.
Sural, January 20t/i, 1855.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Kemark. — The passage quoted refers only to the right of the widow to
inherit in case her husband has separated from the family.
Q. 18. — A man died leaving two wives. The elder wife died
leaving one son, and the younger died leaving two sons. The son
of the elder wife had separated from the other two. The two
uterine brothers died. The elder of these has left a widow.
Besides this widow there is the separated half-brother. The ques-
tion is, which of them is the heir of the last-deceased brother?
A. — The sister-in-law of the deceased, having lived with him as
a member of an undivided family, is his heir.
Dharwar, August 11th, 1854.
The following is the genealogical table showing the family
spoken of in the question :
Elder wife.
A man.
Younger wife.
Son.
Son.
Son.
Separated brother.
Died.
Died.
Widow.
Sister-in-law.
VYAV., CH. II., S. 6 a.] widow — MARRIED AS VIRGIN. 883
Authorities. — (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) Vyav. May., p. 136, 1. 2 (see Chap. I., sec. 2, Q. 3).
Remark. — If, of the two undivided uterine brothers, the married one dies
first, his brother will inherit from him (see Auth. 2); and after his death the
half-brother will succeed. The widow will then be entitled to claim main-
tenance onlv. If the married brother died last his widow inherits from him.
Q. 19. — A man, his wife, his son, and his son's wife lived
together as an undivided family. The man died first, and his
death was followed by that of his son. Can the son's wife claim
from her mother-in-law a half of the family property as her share?
A. — If the family is undivided the mother-in-law becomes the
heir of her deceased son, and in such a case the possession of the
property by the mother-in-law need not be disturbed. If the
family is divided the daughter-in-law is the heir.
Poona, February 5th, 1858.
Authorities.— (1) Mit. Vyav., f. 60, p. 1, 1. 7; (2*) f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4).
Remark. — If the father died before his son the daughter-in-law is the legal
heir, since her husband inherited from his father, and she is, on failure of
issue, the nearest heir to her husband. If, on the contrary, the son died
before his father, the mother-in-law inherits the family property from the
latter. See the next question. The preference of the mother to the widow
by some caste-laws has been noticed above, Q. 1.
Q. 20. — A man died, leaving a widow; subsequently his son also
died, leaving a widow. The daughter-in-law sued her mother-in-
law for the ancestral property. Can she do so?
A. — In default of male issue a man's widow is his heir. The
daughter-in-law, therefore, has rightly sued her mother-in-law.
Tanna, February 14t/i, 1852.
Authorities.— (1) Mit. Vyav., f. 60, p. 1, 1. 7; (2*) f. 56, p. 2, 1. 1 (see
,Chap. I., sec. 2, Q. 4); (3) Viramitrodaya, f. 195, p. 2, 1. 4 (see Auth. 2);
K4*) Manu IX. 185 (see Chap. II., sec. 1, Q. 1).
Q. 21. — A man died without issue, leaving a widow and mother,
le deceased's property consists of an ancestral house. It is in
j-the occupation of the widow and the mother. Are both heirs, or,
only one, which of them is heir of the deceased?
384 HINDU LAW. [book I.
A. — If the deceased was separate and had received his share of
the family property, his widow inherits his property. If the
deceased was not separate both his mother and widow are his
heirs. If the wife conducts herself virtuously, supports and
serves her mother-in-law, she will have the better right of the
two to inherit the property; but if the wife does not behave
in this manner the right of the mother will be superior.
Ahmedabad, Septembej' 12th, 1851.
Authorities. — (1) Vyav. May., p. 134, 1. 6 :
"Let the widow succeed to her husband's wealth, provided she be chaste."
(Borradaile, p. 100; Stokes's H. L. B. 84.)
(2) Vyav. May., p. 136, 1. 7; (3) p. 136, 1. 4 (see Chap. I., sec. 2, Q. 11).
Remarks. — 1. If the deceased was separate, the widow is his heir.
2. If he was undivided, and male members of the family are alive, she can
only claim maintenance.
3. The mother has in either case only a claim to maintenance.
Q. 22. — A widow adopted a son, who died after his marriage.
The questions are : Who will be his heir, his adoptive mother or
his widow? Which of the two can adopt a son, and if each of
them adopt a son how shall the property be divided between the
sons?
A. — The deceased, though adopted by the widow, became heir
of her husband. On his death his widow is the last heir. She
therefore has the right to adopt a son, and her adopted son can
perform the funeral rites for his mother as well as for his
grandmother. The mother-in-law therefore cannot, unless there
is a good reason for it, adopt a son.
Sadr Adalat, April 12th, 1850.
Authorities.— (1*) Manu IX. 141 (see Auth. 2); (2*) Datt. Mim., p. 36,
1. 10 (see Chap. II., sec. 2, Q. 3); (3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4).
Q. 23. — There are a daughter-in-law and her mother-in-law.
The husband of the former died, and the question is : Who should
collect the debts due to him ?
A. — It is enjoined in the Sastra that the property of a person
who died without issue, and who had declared himself separate
from the other members of he famity, goes to the widow, and that
VYAV., CH.II., S. 6 a.] widow — MARRIED AS VIRGIN. 385
the property of a person who died without issue, but had not
declared himself separate, goes to his mother. In the case under
reference the debt should be recovered by the mother-in-law.
Rutnagin, October 14:th, 1847.
Authorities.— (1) Vyav. May., p. 136, 1. 4 (see Chap. I., sec. 2, Q. 11);
(2) Mit. Vyav., f. 51, p. 2, 1. 5; (3*) f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(4) Manu IX. 217.
Kemark. — The widow of the last deceased member of an undivided family
inherits in preference to the widows of all pre-deceased members. (See Ques-
tions 18, 19, and 24.)
Q. 24. — A man died leaving a widow and mother. The widow
is a minor of about eight years. The mother declared herself to
be the heir, and took charge of the banking business of the
deceased. The question is whether the mother or the widow has
right to the man's property?
A. — When a man has separated from other members of his
family his wife alone has a right to inherit his property after his
death. As, however, the deceased had not separated from his
parents, his mother has rightly assumed the possession of his pro-
perty. On the death of the mother-in-law her daughter-in-law
will succeed her as heir.
Ahmedahadj March 26^/i, 1850.
Authorities.— (1) Vyav. May., p. 95, 1. 5; (2*) Mit. Vyav., f. 55, p. 2, 1. 1
(see Chap. I., sec. 2, Q. 4) ; (3) Viram., f. 194, p. 2, 1. 4 (see Chap. II., sec. 6a,
Q. 14).
Remark. — The deceased person's wife inherits. But as she is a minor she
will be under the guardianship of her mother-in-law, if the latter is a fit person
and if no male blood relatives of the husband are living. (See Act No. XX. of
1864; Act IX. of 1861.)
Q. 25. — A man of the Gavali (milkman) caste left at his death
some money to be recovered from a debtor. His mother obtained
a decree, and attached some property belonging to the debtor.
There is a widow of the deceased, who, though a " Lagna " wife,
did not live with her husband during his lifetime. The mother-
in-law on this ground contends that her daughter-in-law has no
right to the property of the deceased. What is the law on this
point ?
A. — If the daughter-in-law, though living in her mother's house,
has maintained her good character, and is of a proper age, she can
H.L. 26
386 HINDU LAW. [book I.
recover the debt. If she has a bad character, or has, married
another husband, she cannot claim any property of her husband.
Sholapoor, March 21th, 1854.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 134, 1. 6
<see Chap. II., sec. 6a, Q. 21); (3*) p. 137, 1. 7 (see Chap. II., sec. 6a,
Q. 11); (4) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 26. — A man- died leaving a widow, a son, and a daughter-in
law. They all lived as an undivided family. Afterwards the son
died. The right of inheritance is contested between the mother
and the daughter-in-law. The question is, which of these is the
heir?
A. — According to the Sastra, a man's son and widow have a
right equally to share his property. If the son is dead his wife
has a right to inherit her husband's share of his father's property.
The mother-in-law has no right to it. If the father's property
has not been divided between his widow and son the daughter-in-
law cannot claim her share. If, however, she pleases her mother
in-law, and induces her to assent to a division of her property,
she may obtain a share. If the daughter-in-law cannot please
and induce her mother-in-law to consent to a division, and if the
mother-in-law withholds her consent, the daughter-in-law cannot
get her share. The mother-in-law will, however, be bound in
such a case to maintain her daughter-in-law. On the death of the
mother-in-law the daughter-in-law will inherit her property.
Ahmedabad, October 21st, 1845.
Authorities.— (1) Vyav. May., p. 136, 1. 7; (2) Mit. Vyav., f. 55, p. 2, 1. 1
(see Chap. I., sec. 2, Q. 4).
Eemark. — A mother receives a share of her husband's property only if either
there are several sons, and these divide after the father's death, or if a son
assigns some of his father's property to his mother instead of giving her
maintenance. Neither the one nor the other condition seems to exist in this
case. The mother has, therefore, after her son's death only a right to main-
tenance. The daughter-in-law, on the other hand, inherits her husband's
property.
Q. 27. — When a man dies after the death of his son, will the
man's or his son's widow be his heir?
A. — The father's widow is the heir. Her daughter-in-law is
entitled to a maintenance only.
Khandesh, September 1th, 1858.
VYAV., CH. II., S. 6 a.] widow — MARRIED AS VIRGIN. 387
AUTHOEITIES.— (1) Vyav. May., p. 134, 1. 4 (see Auth. (3)); (2) p. 136, 1. 4
ee Chap. L, sec. 2, Q. 11); (3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I.,
(see
sec. 2, Q. 4).
Q. 28. — A mother-in-law and her daughter-in-law live together
as a family united in interests. They possess some ancestral
propert}^ The question is how the women should share it?
A. — Each of the women should take a half of the property. If
the property was acquired by the husband of the mother-in-law
she must be considered his heir and entitled to all his property.
In this case the daughter-in-law can claim a maintenance only
from her.
Sadr Adalat, September 11th, 1852.
Authority. — Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I, sec. 2, Q. 4).
Eemark. — The viridow whose husband died last is the lawful owner of the
property. The other is entitled to maintenance only. As to the Sastri's
opinion that the daughter-in-law is entitled to maintenance, see above,
pp. 239, 241.
Q. 29. — A man died leaving a widow and mother. The ques-
tion is : Which of these is the heir ?
A. — If the widow is a chaste woman she is the legal heir of her
husband. If her character is not good she will be entitled to
maintenance only.
Surat, November 7th, 1845.
Authority. — Mitakshara, f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 30. — A man died. His young wife is under the protection
of her father. A separated uncle and cousin of the deceased state
that they are the heirs to the property of the deceased, and that
[they would support the widow till she should marry another
msband. The question is: Who is the heir? The father of the
fgirl has passed an agreement to the uncle and the cousin of the
leceased that they should take one-half of the deceased's property
md permit the widow to take the other half. Has the widow's
father a right to pass such an agreement?
A. — The widow is the heir to the deceased's property. The
>ther relatives have no right to contest her heirship on the ground
388 HINDU LAW. [book I.
that she is likely to be remarried. Her father has no right to pass
any agreement of the kind described in the question.
Khcmdesh, October 20th, 1849.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 31. — A representative of a branch of a family passed an
agreement to one or two individuals of another branch of the samt?
family whereby he stipulated that he should have his name
entered on the records of Government in regard to certain lands.
Of these two individuals one died and the other left the country
and was not heard of. The widow of the former represents the
branch. The question is whether the widow or the person who
passed the agreement is the heir of her deceased husband?
A. — Those who take meals and carry on their transactions
separately must be considered members of a divided family.
According to this description the person who passed the agree-
ment and the two individuals of another branch appear to be
separate in interest from each other. The widow will therefore
be the heir of the deceased.
Ahmednuggur, April 26th, 1847.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 7); (2) p. 129, 1. 2;
(3) p. 129, 1. 4; (4) p. 140, 1. "^1 ; (5) p. 134, 1. 6; (6) p. 137, 1. 7; (7*) Mit.
Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 32. — A man held the watan of a priest, called the " Yaja-
mana-vritti. " He died, leaving a widow and a sister. A person,
of whose family the deceased was the priest, made a ** Dana," or
religious gift, of a bed. The sister received it. The question is
whether the widow or the sister has the right to the emoluments
of the office of the priest? Can a man make a " Dana " of a bed
to any other person besides his priest, and if he cannot, is the
giver or the receiver responsible for it?
A. — In this case the widow is the heir, and so long as she is
alive the right of receiving gifts belongs to her. The sister has no
such right, but she cannot be prosecuted for receiving that which
a man chooses to give her. The man may, however, be sued on
that account.
Ahmedahad, July 24:th, 1856.
VYAV., CH. II., S. 6 a.] widow — MARRIED AS VIRGIN. 389
Authorities.— (1) Vyav. May, p. 134, 1. 4 (see Auth. 3); (2) p. 140, 1. 1;
(3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks.— See Dig. Vyav., Chap. II., sec. 7, Q. 1. As to the customary laws
governing the relations between such classes or persons as priests and astro-
logers and those entitled to their ministrations, reference may be made to
Damodar Ahaji v. Martand Abaji (r) and to Vithal Krishna Joshi v. Anant
Ramchandra (s). In some cases, though the amount of the fee payable by the
layman is not fixed by law, yet a parting with some property is essential to the
efficacy of the ceremony performed (t). The right to the fees and offerings thus
becoming due from particular families or classes is regarded as a family estate,
inalienable usually to persons outside the family, but transferable within the
family, and a subject for inheritance and partition like other sources of income.
Thus it is that even a widow may be entitled under the customary law to the
offering by which on a particular occasion a client of the priestly family has to
obtain a .spiritual sanction to some secular transaction, or simply to acquire
religious merit. The requisite ceremonies have in such cases to be provided
for by the appointment of a qualified officiating substitute. An intruder sub-
jects himself to an action for damages, as the reported case shows. Whether
a suit lies by the representative of the priestly family against an individual
who fails to make the proper offering depends on the particular legal relation
subsisting in each case (v).
Q. 33. — To whom does the ancestral property of the deceased
go by the right of inheritance, to his wife or his daughter-in-law ?
A. — If a father dies first his son becomes his heir, and after
the death of the latter his wife succeeds him. If, however, the
son dies before his father, the father becomes his heir, and on his
decease the father's wife succeeds him.
Poona, July 10th, 1858.
Authority. — *Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4),
Q. 34. — Two men, A. and B., of the Vani caste, lived together.
A. died, leaving a widow and a daughter. Can the widow have a
claim to recover her husband's share of the movable and im-
movable property?
A. — As the property was acquired by both, each has a right to
(r) H. C. P. J. 1875, p. 293.
is) 11 Bom. H. C. E. 6.
it) See Col. Lett, and Ess., Vol. II., p. 347.
(v) See KJiondo Keshav Dhadphale v. Bahaji bin Apaji Gurrav, H. C. P. J.
1881, p. 337, in which it was said that a temple servant had not a right
enforcible against a particular worshipper.
390 HINDU LAW. [book I.
an equal share of it. The widow can therefore claim a moiety of
the property.
Broach, June 18th, 1859.
Authorities.— (1) Mit. Vyav., f. 83, p. 2, 1. 5 :
" If (one of the partners) emigrate or die, his heirs (that is, sons, grandsons,
&c.) or paternal or maternal relations, if they appear, may take his property :
on failure of these, the king."
(2) Mit. Vyav., f. 82, p. 2, 1. 5; (3*) f. 55, p. 2, 1. 1 (see Chap. I., sec. 2,
Q. 4); (4) Manu VHI. 210.
Bemark. — The decision is right only under the supposition that the two
Banias were not members of a united family, but only partners in trade.
Q. 35. — A deceased person has left two widows, one of whom
is an elderly woman and the other of sixteen years only. How
should they divide the deceased's property between them?
A. — Each of them should take a half.
Poomi, April SOth, 1849.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2*) p. 137, 1. 5 :
" But if there be more than one (widow) they will divide it and take shares."
Borradaile, p. 103; Stokes's H. L. B. 86.)
Eemark. — See also the note at page 52 of Stokes's H. L. Books. It would
seem that they take jointly according to the cases in Norton's Leading Cases,
page 508. See above, p. 95. See also infra, Chap. IV. B., sec. 6, II. c,
Q. 1; and Bhagwandeen Doohey v. Byna Baee (w). The Sastri, at 2 Str.
H. L. 83, 90, agrees with the view taken above, p. 95.
Q. 36. — A deceased man has left two widows; the elder of them
has two daughters and the younger has no child whatever. The
property of the deceased has passed into the hands of the elder
widow. Can the younger widow claim a share of the property;
and who has the right to adopt a son?
A. — The younger can claim a share. The right of adoption
belongs to the elder.
Poona, March dlst, 1852.
Authorities.— (1) Vyav. May., p. 137, 1. 5 (see Chap. II., sec. 6a, Q. 35);
(2) Samskara Kaustubha. (See Book III., Adoption.)
(w) 11 M. I. A. 487.
VYAV., CH. II., S. 6 a.] widow — MARRIED AS VIRGIN. 391
Q. 37. — A deceased husband has left two wives, one married
by the " Pat " and the other by the " Lagna " ceremony. Which
of these wives will be his heir?
A. — According to the Sastra, both are wives and heirs.
Poona, August 7th, 1847.
AuTHOKiTiES. — (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).
Kemakks. — According to the strict Hindu law of the higher castes the
re-marriage of widows is null, and, apart from caste custom, nothing more
than concubinage, and consequently the Lagna-wife alone can inherit. But as,
by section I., Act. XV. of ici66, the re-marriage is legalised, a Pat-wife has
perhaps the same rights as the Lagna-wife under section V.
2. The Pat-wife's son is legitimate and capable of inheriting ; but in 1858
the Dharwar Sastri assigned to him a place below the previously adopted son,
who was himself postponed to the son by a Lagna-wife, though born after
the adoption. The parties seem to have been Lingayats. E. A. 26 of 1873,
Basanagaodo v. Sunna Fakeeragaoda.
Q. 38. — Is a man's Pat-wife or the Lagna-wife his heir?
A. — The Lagna-wife is the heir. The Pat- wife is not. A Pat
is not a legal and ceremonial marriage. It is performed without
reference to the appearance of the planets Venus and Jupiter, and
in defiance of the situation of other stars and of the prohibition of
certain days for the performance of marriage.
Dharwar, September 21st, 1855.
AuTHOEiTiES.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 136, 1. 4;
(3*) Mit. Vyav., f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — See Question 39, with reference to which the answer would be
wrong as to members of a caste recognising Pat-marriages.
Q. 39. — A deceased person has left two widows, one by
Lagna and another by Pat. The latter has a daughter who is
married. Is the Pat-widow entitled to the whole or a portion of
the deceased's property, or to a maintenance only?
A. — Both the widows are equally entitled to the husband's
property, which should therefore be divided between them.
Poona, December 2Sth, 1848.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark.— See Question 35.
392 HINDU LAW. [book I.
Q. 40. — A deceased man has two wives, one by Lagna (the
first marriage) and the other by Pat (re-marriage as respects
the woman). The former has daughters, to whom the man has
transferred his property as a gift. The question is whether the
daughters or the Pat-wife will be his heirs?
A. — The Pat- wife is the nearer relation and better heir of
the deceased than his daughters. There is scarcely any difference
between a Pat- and a Lagna-wife.
Khandesh, February Qth, 1848.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2*) Mit. Vyav.,
f. 68, p. 2, 1. 16 (see Chap. II., sec. 3, Q. 11) ; (3*) f. 55, p. 2, 1. 1 (see Chap. I.,
sec. 2, Q. 4).
Eemarks. — If the deceased kept back enough of his property to maintain his
widow the gift of the rest to his daughters is valid. But if he left his widow
unprovided for the gift is ineffectual, and as, according to section I. of Act XV.
of 1856, the Pat-marriage is legal, his widow will be his heir, provided that
the mother of his daughters be dead. Should she be still alive both the widows
will inherit.
2. A widow re-marrying remains personally liable on a bond executed by
her (x). A married woman contracting jointly with her husband is responsible
only in her stridhana. Narotam Lalahhai v. Nanka Madhav, Bom. H. C. P.J.
1882, p. 161; Nathuhhai Bhailal v. Javher Raiji, I. L. E. 1 Bom. 121; Govindji
v. Lakmidds, ibid. 4 Bom. 318.
Q. 41. — A man had two wives, one by Lagna and the other
by Pat. He married a third by Pat. This last-mentioned woman
had not taken the leave of her first husband to contract a Pat-
marriage with the man. She gave birth to a daughter. Can this
daughter succeed her father after his death ?
A. — It is not legal for a woman to enter into a Pat-marriage
without having previously obtained permission of her husband,
unless he is dead. The daughter, therefore, can have no share in
the property of the deceased father. But as she was the result
of the Pat-marriage the heirs who will take the assets of the
deceased must support her. The Lagna and the first Pat-wives
will be the heirs of the deceased, entitled to take all his property.
Sholapoor, October 19th, 1852.
Authorities. — (1) Manu V. 147; (2) Viramitrodaya, f. 157, p. 2, 1. 11;
(3) Mit. Achara, f. 12, p. 1, 1. 4; (4) Vyav. May., 239, 1. 3; (5) p. 137, 1. 5;
(r) Nahalchand v. Bai Shiva, 1. L. E. 6 Bom. 470.
VYAV., CH. II., S. 6 a.] widow — MARRIED AS VIRGIN. 393
(6*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4); (7*) f. 57, p. 1,
1. 5 (see Chap. 11., sec. 3, Q. 3).
Kemarks. — (1) As the husband of the second Pat- wife is still alive the
woman cannot be correctly called a Pat-wife, but is an adulteress and
concubine. As a concubine she has no right to inheritance, but only to main-
tenance for herself and her daughter from the heirs of the man under whose
protection she lived. The concubine of a late proprietor is entitled to main-
tenance from his heirs (y), and a sufl&cient portion of the estate may be
invested in order to provide the requisite income during her life (z).
2. The recognition of a natural son by his father confers on him that status,
though he was not born in the father's house or of a concubine having a peculiar
status therein (a).
3. Illegitimate children of the Sudra caste inherit the estate of their putative
father in default of legitimate children (b).
Q. 42. — A man died. His Lagna-wife had lived separate from
him. The man kept a woman. His property has passed into the
hands of his mistress. The question is : Which of the two women
has the right of inheritance?
A. — If the deceased has left no sons, grandsons, or other nearer
heirs, the Lagna-wife has the right to inherit the property of the
deceased. The mistress cannot lay any claim to it.
Poona, March 20th, 1855.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 134, 1. 6;
(3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 43. — A Kunabi died leaving two widows, A. and B., one of
whom. A., he had married as a virgin, and B. as a widow. Can
A. mortgage her husband's Miras land?
A. — According to the Sastra, A. is the heir of her husband, and
she can therefore mortgage his Miras land.
Poona, September 22nd, 1860.
Authorities. — (1) Vyav. May., p. 137, 1. 7 (see Chap. II., sec. Ga, Q. 17);
(2*) Nirnaya Sindhu (see Chap. II., sec. 8, Q. 5).
(t/) Khemkor v. Umiashankar, 10 Bom. H. C. E. 381.
(z) Vrindavandas v. Yamunahai, 12 Bom. H. C. E. 229.
(a) Muthusawmy Jagavera Yetappa v. Vencataswara Yettaya, 12 M. I. A.
220.
(b) Inderun Valungypooly v. Ramasawmy Pandia et al., 13 M. I. A. 141.
394 HINDU LAW. [BOOK
Q. 44. — A Lingayat married a virgin A. and a widow B. Which
of them has the power of selHng his immovable property?
A. — A. has the chief power of disposing of his property.
Dharwar, December Srd, 1856.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) Vyav. May, p. 137, 1. 7 (see Chap. II., sec. 6a, Q. 11); (3*) Nirnaya
Sindhu. (See last Question.)
Eemark. — The marriage of the widow B. to the deceased would be perfectly
valid, the Lingayats ranking only as of the Sudra caste (c). (See Q. 35, 40.)
SECTION 6.— WIDOW.
B.— RE-MARRIED.
Introductory Eemarks.
The re-marraige by Pat is so foreign to the purer Hindu notions
that the simple ceremony (Natra) cannot be performed for a
woman who has not been married before. The same rule apphes
in some castes to males ; in others a mere symbolical marriage of
a man to a Sami tree or a cotton image qualifies him, though a
bachelor, to take a previously married woman to wife. Such is
the rule amongst the Surat Soothar Panchalis, Lobars, Malis,
Khumbars, Dhobis, Mochis, and others who answered Mr. Borra-
daile's inquiries.
In some of the Dekhan castes, on a widow's marriage she has to
give up to her first husband's family all her property except a
pritidatta or gift from her own family (d). The nature of this
property is discussed under the head of Stridhana. Property in
a wife is argued against by Nilakantha (e) in terms which imply
that by some of the learned even it was asserted. Such property
would, of course, imply the wife's incapacity for property except
a peculium in the proper sense. It would account, too, for the
rule of some castes that he who takes the widow, a part of the
familia of a deceased, becomes responsible for all his debts. See
above, pp. 165, 262, 270.
(c) See next section and Gopal Narhar v. Hanmant Ganesh, I. L. E.
3 Bom. 273.
(d) Steele, L. C. 169.
(e) Vyav. May., Chap. IV., sec. I., para. 10.
k
VYAV. CH. II., S. 6 B.] WIDOW RE-MARRIED. 395
Amongst the Jats of Ajmir custom requires that the member of
the community who marries a widow shall repay to the family of
the deceased husband the expenses of his marriage (/). We have
here a trace of a joint interest of the family in the wife or widow
of each member of it which has been found to prevail in widely
separated parts of the world. Without discussing the causes of
this custom, we may perhaps gain a clearer view of the position
of the widow, especially among the lower castes, by a considera-
tion of the various social conditions through which she has
reached her present capacities of freedom, complete or qualified,
to dispose of herself, and of succession to property.
The levirate was at one time an institution generally recognised
in India (g). "It is declared," says Apastamba, " that a bride
is given to the family (of her husband, not to the husband
alone) " (h). Hence the husband could once procure children by
the agency of a blood relative (i), but that " is now forbidden, on
account of men's weakness " (k), " the hand (of a gentile relative
like that of another is as) that of a stranger " ; " the marriage vow
is not to be transgressed "; and " the eternal reward to be gained
by submitting to the restrictions of the law is preferable to
obtaining offspring in this manner " (Z). In Manu, again (m), it
is said that connection by one brother with the wife of another is
(/) Madda v. Sheo BaJcsh, I. L. E. 3 All. 385.
ig) Gaut. XXVIII. 22, 23, 32. As to the Vedic period, Muir, S. T., Vol. V.,
459.
(h) Apast, Pr. II., Pat. 10, Kh. 27. Compare the existing customs described
ill Tupper, Panj. Cust. Law, Vol. II., pp. 118, 131, 189.
The pallu or dower of a widow is resumed in Gujarat by the deceased
husband's family on her re-marriage. They may in some castes escape from
the liability to maintain her by giving her a formal license to re-marry, without
which she cannot, according to the caste usage, form a second union. In most
instances a payment must be made to the family, and in some to the caste.
(i) Gaut. XVIII. 4, 11. The Athenian heiress taken to wife by an aged
husband was directed to supply his defects, should he prove unequal to his
responsibilities, by the services of one of his agnatic kindred. See Petit, Leges
Attic, p. 444. Baudhayana, Tr., p. 226, might seem not to limit the choice of
a subsidiary father to the family of marriage, but this appears from p. 234.
Vasishtha XVII., 56 ss. 80, seems to intend that one of the family assembly
shall be chosen.
(k) That IS, their incapacity now to resist the demoralising effect of practices
which would have left the higher sanctity of their predecessors unharmed.
Comp. Apast. Tr., p. 131.
(1) Apast. loc. cit.
(m) Chap. IX., 58 ss., 120, 121, 143-147; Chap. III., 173. Narada does not
impose this condition. Part II., Chap. XII., sec. 80 ff.
•396 HINDU LAW. [book I.
•degrading, even though authorised, except when such wife has
no issue "; but in that case it is approved (n). Next follows a
qualification of the rule limiting it to the procreation of one child
on a widow by a kinsman, and lastly a prohibition of the practice
to the twice-born classes. It is placed on a level with the mar-
riage of a widow (o) ; and the only remnant of the earlier law
preserved by Manu is that commanding a man to take his
-brother's betrothed on the death of her (intended) husband, in
order to procreate one child (p). A similar rule is found in
Narada, Part II., Chap. XII., 80, 81, 85, 86, with the condition
of authorisation by the relatives, failing which the offspring will
be illegitimate (q). Provision is made by Yajnavalkya (r) for the
son thus begotten (kshetraja) next to the son of the appointed
daughter as heir to the nominal father (s). By Vasishtha he is
made to precede the appointed daughter (i). The idea of a
woman's leaving her family of marriage and of sacrifice by
marrying into another was one that to a Brahman would appear
far more monstrous than a simple succession of a brother or kins-
man to the right of one deceased over his wife (v).
The custom, softened as we have seen, and gradually dis-
credited amongst the higher castes, has been preserved amongst
the less civilised tribes down to our own day. Many instances of
it are given in Mr. Eowney's book on the Wild Tribes of India.
It seems itself to have sprung (iv) from an even coarser usage of
polyandry (x) which still subsists amongst the aborigines of
(w) See, too, Mit., Chap. II., sec. 1, paras. 10-12, 18, 19.
(o) On this comp. Apast. TransL, p. 130, and Viram. Tr., p. 61.
(p) See Viram. Tr., p. 106 ss.
(g) The viniyoga, or disposal of the widow by the husband's family, provided
for in Narada, Part II., Chap. XIII., para. 28, is a disposal of her to another
lord.
(r) 11. 128 ss. ; Mit., Chap. I., sec. XI., paras. 1, 5.
(s) See Mit., Chap. I., sec. X.
(t) Vasishtha XVII., 14, 15.
(v) Comp. Tupper. Panj. Cust. Law, Vol. II., p. 125, 131, 174. It seems
that some Brahmans have adopted or retained the levirate, ibid. 132.
(w) See M. Miiller's Hist. Sansk. Lit., p. 46 ss.
(x) See as to Seoraj, Lahoul and Spiti, Mr. Tapper's Collection, Panj. Cust.
Law, Vol. 11. , 186-188. To this custom, perhaps, may ultimately be referred
the passage of Manu. IX. 182 : " If among several brothers one have a son
born, all are by his means fathers of a son." Though this is referred by
Kulloka and other comparatively recent writers to adoption as prevented by the
* -existence of a nephew, such could not have been the purpose when it was first
VYAV. CH. II., S. 6 B.] WIDOW — RE-MARRIED. 3^1
India (y). The wife at one time held in common passes on her
sole owner's death as property to his brother (z). In many cases
she is a valuable property, as by tribal custom she has to do all
or nearly all the agricultural work (a). Sometimes even the son
has to t^ke all his father's widows as his own wives, with the
exception of his own mother. There is probably some mixture of
humane feeling in such rules, as they provide a home for old
widows, while they give the heir the benefit of the younger
ones (b); but they belong to a constitution of society in which
women are not yet regarded as fully the subjects of rights.
Amongst the Jews the levirate was part of a system in which a
man's wife was regarded as his property, and he might sell his
family subject to return at the jubilee year. The capacity of
daughters as heirs was grafted on to this system by a special
revelation, and accompanied by a necessity of marrying within
their own tribe (c). In India their right grew out of the developed
system of ancestor worship through their capacity to produce
sons who could sacrifice to their father's manes. The widow's
right grew out of her participation in her husband's domestic
sacrifices (d).
Such rights as these imply progress beyond the stage at which
women were mere chattels, and when the law made no provision
for them except by handing them over to a second master on the
death of the first (e) ; but the traces of the earlier system are still
uttered. For the polyandrous customs of the Tothiyars and Nairs see Dubois^
Manners, &c., p. 3; and above, p. 276.
(y) As once in Britain. See Caesar De B. G. V. 14.
(z) Amongst the Thiyens in Malabar an unseparated brother takes to wife
the widow whose favours as wife of his brother he previously had a right to
share.
In Spiti a brother even leaves a monastery to take his brother's widow and
other property. No ceremony is thought necessary. Here, however, Thibetan
influences are to be recognised. See Panj. Cust. Law, II., 189. For the semi-
Afghans of Peshawar, ihid. 228. See McLennan 's Studies in Anc. Hist.,
p. 158 ss. In Eohtak the only Karewar or widow's re-marriage recognised as
proper is that to her late husband's brother. See Eohtak Settlement Eeport,
p. 64.
(a) See Panj. Cust. Law, p. 194.
(b) See Tylor, Anthropology, 404; Tupper, Panj. Cust. Law, Vol. II., p. 125.
(c) Numbers XXVII. 1, 7 ; XXXVI. ; Lev. XXV. 10; Milman's Hist, of the
Jews, Book V.
id) See Manu IX. 45, 86, 87; III. 18, 262; Mit., Chap. IL, sec. 1, para. 6.
(e) Comp. the idea of the Vazirs that a woman is a chattel as much as a
cow. Panj. Cust. Law, II. 236.
398 HINDU LAW. [book I.
plainly perceptible in the texts, and even more so in the customs
of tribes and castes. It is not a wife in general whom the Smritis
make a real heir; it is only the ** patni," a sharer in her husband's
sacrifices. We can see the capture of wives succeeded by the sale
of daughters, and this by their endowment when they had to be
in some measure provided for otherwise than as mere slaves in
their husband's families; and then again their elevation to the
rank of heirs to their husbands as competent to perform their
Sraddhs. But the older spirit reasserts itself in cutting down
the widow's interest to a life enjoyment and then extending to all
female successors a single dubious text which in terms applies only
to widows. Tribal usage, generally oppressive to females in pro-
portion to lowness in the scale of progress, has still in several
instances hit on alleviations of their lot, and on means of giving
them dignity and social status, which suggest that civihsation
might possibly have been worked out on quite a different type
from that which has in fact prevailed. Side by side with the
transfer and devolution of women as chattels amongst some
tribes (/) we find in other tribes, from the Garos and Khasias
north of Assam to the Nyars of the south, a system of exclusive
female kinship. The Khasya Chief and the Eajah of Travancore
alike succeed to their maternal uncles, and a sisterless and
nephewless man has to adopt a sister to provide him with legal
heirs who are not according to custom the sons of her husband.
The Garo has to earn a place by service in his intended father-in-
law's household. The scriptural example is sometimes followed
in the Dekhan also (g). The Koche bridegroom becomes a
dependent of the bride's mother (h). In some of these cases it is
impossible to discover any degradation of the physical or moral
being of the tribesmen below that of others placed in similar
physical circumstances (i), but the arrest, in all of them, of pro-
gress at a certain stage suggests the unfitness of these social
schemes as a basis for a high form of civilisation.
The Chundavand or patnibhag, prevalent alike though not
(/) See Kowney, Wild Tribes of India, passim.
(g) Steele, Law of Castes, p. 165.
(h) A similar custom in Sumatra is described in Marsden's History, p. 262,
quoted Lubbock, Orig. Civil, p. 63. In Kulu and Spiti (Pan jab) a son-in-law
is commonly taken into the family of a sonless man, Panj. Cust. Law, Vol. II.,
pp. 186, 190. Similar to this is the custom of Illatom in Bellary and Karnool,
see Hanumantamma v. Rama Reddi, I. L. E. 4 Mad. 272.
(t) See Panj. Cust. Law, Vol. II., 196.
VYAV. CH. II., S. 6 B.] WIDOW — RE-MARRIED. 399
general (k) in Madras and in the Panjab, by wliich the property
is distributed equally to each wife and her offspring, has probably
descended from a state, of which there are still instances, of com-
bined polygamy and polyandry, coupled with a distinct recog-
nition of women as the subjects of rights, a respect for them as
the sources of families, and a tracing through them of all heritable
rights in males. This was adopted into the Brahmanical system
6o far that the estate was first divisible according to the mothers
of the different classes ; but the later development which forbade
the inter-marriage of different classes (l) has deprived the rules
in the present day of any practical application except under some
special custom of which the instances are rare if not unknown.
Some other traces of female gentileship remain (m), which are
noticed elsewhere (n).
Amongst the lower tribes of the Bombay Presidency the tribal
ownership of property which in one form or another subsists in
Malabar and in the Panjab, is not to be found, owing chiefly,
perhaps, to the absence of external pressure forcing the members
into close aggregation rather than to a progress beyond the stage
of common proprietorship. The advanced Brahmanical law has
had so much influence that the levirate in any form is not
admitted as it still is in the North of India (o) ; but purchase is
common, and a simulated capture is not unknown. The com-
munal right of the family of marriage in women (p) having given
(k) Panj. Gust. Law, Vol. II., p. 202.
(I) With this prohibition may be compared the expulsion from his tribe to
which a man is still subject for marrying out of it in the Panjab (Tupper, Panj.
Gust. Law, Vol. II., pp. Ill, 122) and elsewhere; the penalty of death imposed
by the Theodosian Gode on a Jew who should marry a Ghristian, and that of
burning alive for the Ghristian who should take a Jewess as his mistress. See
Lecky, Hist, of Eationalism, Vol. II., 13, 275; Milm. Hist. Lat. Ghrist.,
Book III., Ghap. V.; Bollinger, First Age of the Ghurch (Eng. Trans.),
Vol. IL, p. 235; and comp. Apastamba, Pr. 11., Pat. 10, Kh. 27, 8, 9;
Gautama XXIII. 14, 15, 32; Steele, L. G. 170, 33; Dubois, Manners, &c., p. 18.
(m) Perhaps the succession of a daughter to a son of the same mother (Gol.
Dig., Book V. T. 225) may be referred to this. Gomp. the converse case, supra,
p. 273.
(n) See above, p. 273 ss. Inscriptions giving the names of the mothers of
princes are not necessarily indicative of a rule of female gentileship, since,
where polygamy prevails, some are still surnamed as of such and such a mother
for the sake of distinction, without any variation of the ordinary law.
(o) See Tupper, Panj. Gust. Law, Vol. II., p. 93 ss. ; G. S. Kirkpatrick in
Ilnd. Antiq. for March, 1878, p. 86; Kesari v. Samardhan, 5 N. W P. E.
(p) See Tupper, op. cit., p. 101. In some instances it is not (except subordi-
I
400 HINDU LAW. [book I.
way to the notion of wedlock as a really connubial relation, but
one arising in strictness only from a connection by means of the
family sacrifices not allowed to the lower castes, the quasi-matri-
monial union in those castes is easily dissolved, and at the same
time the Pat-marriage of a widow is allowed amongst Sudras
to have full validity (q), though so strongly condemned by the
Brahmanical law.
A husband may generally dismiss a wife at will, giving a
" writing of divorcement " (r) which none of the higher castes
are allowed to do ; mere incompatibility of tempers is a recognised
ground of separation (s) ; and a paramour buys the husband's
rights for money (t). These rules show with sufficient plainness
that those amongst whom they subsist have never risen to the
Brahmanical conception of marriage as a sacred and inseparable
union (v). Among some tribes and castes in Gujarat a mere
agreement dissolves the union (w) ; a fine may be paid as the price
of renunciation (x) by either party or by the husband only (y).
Custom allows a woman to abandon her husband and take
another (z), subject only to the sanction of the caste (a).
The High Court has refused to recognise this authority in the
caste {b), but the usage itself shows how slight is in such cases
the tie to which we give the name of marriage. The penalties of
nately) recognised, and the wife set free by her husband is again sold by her
father or her brothers.
(q) Ahmednagar Sastri, 6th February, 1850 MS.; Steele, L. C. 166, 168.
(r) Ihid.
(s) Op. cit. 169, 173.
(t) Op. cit. 172.
(v) Comp. Dubois, Manners, &c., p. 136; and see Baudhayana quoted above,
p. 86.
(w) Borr. MS., Book F, sheet 39, 57 ; G. Lobars, Khalpa Pattuni 40, 47.
(x) Ibid., sheet 52. Koombar 6, Vaghree 2-3.
(y) Ihid., sheet 56, 57, MS. G. Lobars, Sootars, G. sheet 40.
(z) Amongst the Jats of the Panjab it is said a woman may desert her
husband and live with another man, her offspring by whom are regarded as
legitimate, see Panj. Cust. Law, Vol. XL, 160.
(a) Reg. v. Dahee in Mathura Naikin v. Esu Naikin, I. L. E. 4 Bom., at
p. 569.
(h) Ibid., and Reg. v. Samhhu Raghu, I. L. E. 1 Bom. 347. Under the
Greek and Eoman laws a divorce might always be had by the will of the wife
as well as of the husband, unless amongst the Eomans she had come " in
manum." Christian feeling was strongly opposed to this laxity. See Smith's
Diet. Ant., Art. Divortium; Milman, Hist. Lat. Ch., Book III., Chap. V.
VYAV., CH. II., S. 6 B.] WIDOW RE-MARRIED. 401
adultery are so trivial (c) that the connection guarded by them
cannot be regarded as of a very sacred character. It is the injury
to caste by carnal association with an inferior (d) rather than the
loss of chastity which is looked on as a serious delinquency (e).
Even amongst the Brahmans of the Dekhan simple adultery
entails only a penance, after which the wife " may return to her
husband's embraces " (/). This is a corruption, though one not
without venerable authority (g), supposing the connection has not
been with a man of a lower caste, but for adultery with a low-
caste man the husband may repudiate his wife (h), while he him-
self incurs only a penance by keeping a low-caste concubine (^).
Adultery by a wife is generally atoned for by penance unless the
husband chooses to discard her (k), which he can equally do,
though at the cost of some discredit, without any reason at all (l).
A wife, however, who deserts her husband without sufficient
cause is not entitled to separate maintenance (m), and he who
(c) Thus in Borradaile's Collection, Book G, under Durgee Meerasee Soorti,
there is an entry that a woman who deserts her husband and marries another
may be divorced, and the second must pay Ks. 10 to the caste (punchayat) and
take the woman. See, too, Kally Churn Shaw v. Dukhee Bibee, I. L. E.
5 Cal. 692. In the Gurgaon District, Panjab, it appears that a wife cannot
under any circumstances claim a divorce, see Tupper, P. C. L., Vol. II., p. 130.
(d) Comp. Gaut. XXI. 9; XXIII. 14; Vasishtha XXI. 1, 8, 10; Baudh. Tr.,
p. 232, 233; Narada, Part II., Chap. XII., para. 112.
(e) Amongst the Nayars a woman, it is said, may not cohabit with a man
of lower caste, and therefore must not marry one. See letter quoted above
under Stridhana, p. 272, note (w))) ; and Buch. Mysore, Vol. II., p. 418, 513.
Comp. Manu VIII. 365 ; Yajn. II. 288, 294.
(/) Steele, L. C. 33, 172. Comp. Dubois, Manners, &c., 118, and Baudh.
loc. ciL; Narada, Part 11., Chap. XII., paras. 64, 62, 78, 91, 98.
(gf) See Apast. Tr., p. 164, and the Viramit. Tr., p. 163. But as to the evil
of an adulterine son, Manu III. 176.
(h) Steele, L. C. 171, 172; Vyav. May., Chap. XIX., paras. 6, 12.
(i) Ibid. 170. Baudhayana Tr., p. 218, pronounces a man outcaste who
begets a son on a Sudra woman, but for mere intercourse the penance is no
more than some suppressions of the breath, ibid. 313; see, too, p. 319. Comp.
Manu VIII. 364; Yajn. II. 286.
(fe) Steele, L. C. 172.
(I) So amongst some low castes in Gujarat, Borr. MS., Book F, sheet 67,
&c., and the Nyars. This laxity brings a discredit on marriage which raises
concubinage by comparison, and makes open licentiousness amongst the lower
castes in no way disgraceful. The same effect followed amongst the Komans
from the same cause. See Milm. Hist. Lat. Christ., Book III., Chap. V.
(m) Sidalingappa v. Sidava, I. L. E. 2 Bom. 634.
H.L. 26
402 HINDU LAW. [BOOK T.
harbours her is liable to a suit by the husband (n). The marriage
of a second wife by the husband affords no excuse (o).
Eepudiation in practice seldom occurs except when the hus-
band's patience has been worn out, or he has received a reward
for setting his wife free. She is generally valuable to him as a
servant ; some mutual affection naturally grows up ; and the chil-
dren must be tended. But the whole system of association
between the sexes is as far removed from the higher Brahmanical
conception (p) as on the other side from the rudest sexual com-
munism. The texts of the Smritis, and for the most part the
commentaries also, have no real application to wives and widows
and re -married women under the dominion of usages which the
Hindu law admits as governing those amongst whom they pre-
vail, but at the same time utterly rejects as part of its own
developed system. It recognises no second marriage of a widow,
which yet amongst the lower orders is common, and now is
legalised for all classes by Act XV. of 1856. It could not be
expected, under such circumstances, that the answers of the
Sastris should be perfectly consistent; they were not called on to
expound caste custom, and had no particular acquaintance with
it. They answered the questions put to them either by mere
reference to the received texts against re-marriage, without dis-
crimination of whether these could be applicable to the particular
cases, or by admitting the " Pat" wife and widow to the same
position as the ' ' Lagna ' ' wife according to analogy, or an
assumed caste custom. This custom has been greatly acted on
by that of the superior castes, and the process of assimilation is
hastened by every improvement in the material condition of the
people. As they gain wealth they naturally strive to imitate their
betters (q). It is on custom that the rights of the widow in all the
(n) Yamunabai v. Narayan, I, L. K. 1 Bom. 164.
(o) Nathubhai Bhailal v. Javher Raiji, I. L. E. 1 Bom., at p. 122.
(p) The High Courts naturally take the higher view as far as possible. Thus,
in a suit for maintenance between Lingayats, it was said that the right and
duty do not rest in the ordinary way (merely) on contract, but spring from the
jural relation of the parties, Sidalingappa v. Sidava, I. L. E. 2 Bom. 624.
(q) A striking instance of this is the decay of the polyandrous customs of
the Nayars under British rule. These have changed from an indulgence at
will on the part of the women, after a mere ceremony, to such strictness that
even two husbands are now thought discreditable, a brother may not marry
his sister-in-law either during his brother's life or after his death. (Letter
quoted above, p. 272, note (w). Still, however, the Nayar marriage is dis-
VYAV., CH. II., S. 6 B.] WIDOW — RE-MARRIED. 403
lower castes must really rest (r), custom modified amongst them,
as in all cases, by the Act of the Legislature above referred to,
and the equally important Act XXI. of 1850, which prevents loss
of caste from affecting the right of inheritance (s). An important
provision (sec. 5) of the former Act is that a widow re-marrying,
while generally forfeiting her rights through her first marriage,
shall otherwise have the same rights of inheritance as if her sub-
sequent had been her first marriage (t). This extends the favour
conceded to the Pat-wife only in particular castes to every widow
re-marrying. Another is that (sec. 7) which gives the disposal in
marriage of the minor widow to her father and his family instead
of her husband's (v).
The relation may or may not be created by contract, but once
created it cannot, like ordinary contractual relations, be dissolved
by contract, but constitutes a status itself the origin of special
rights and duties imposed by the law.
Q. 1. — How far can a woman married by "Pat" ceremony
have a claim to her husband's property?
A. — She can claim a maintenance only.
Dharwar, 1846.
Authority not quoted.
Eemark, — For this and the following seven cases see the Eemarks sub-
joined to Chap, II., sec. 6a, Q. 37, and sec. 3, Q. 16.
soluble at will, which places it in an entirely different category from the
Brahmanical or Christian marriage.
(r) Comp. Sarasvativilasa, § 118.
(s) Mit., Chap. II., sec. X.; Steele, L. C. 61, 26, 159.
(t) But it seems a marriage between persons of different castes is still
generally impossible without a specific allowance by the caste law. See
\Karain Dhura v. Rakhal Gain, I. L. E. 1 Cal. 1. There is a jus connuhii
[between many pairs of castes. See ex. gr. below, sec. 7, Q. 6.
(c) The prevailing idea of marriage is that of a transfer of a woman as
I property to the family of her husband, who on his death have a right to
[dispose of her, even by sale, as in Gurgaon in the Panjab, and other districts.
Pan. Cust. Law, Vol. II., p. 118. See Nar., Part II., Chap. XIII., para. 28,
fref erred to above.
404 HINDU LAW. [BOOK I.
Q. 2. — A man of the Maratha Kunabi caste died. He had no
near relation except his " Pat " wife. Can she inherit his
immovable property?
A. — If the deceased husband had declared himself separate
from the other members of his family, and if he has not left a
son, his widow can succeed to all his property.
Rutnagiri, May 22nd, 1849.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 136, 1. 4;
(3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 3. — A man, not being on amicable terms with his first Pat-
wife, took another wife by the Pat ceremony. The first Pat-
wife, lived for eighteen years with her daughter. The man is now
dead. His second Pat-wife, having performed his funeral cere-
monies and liquidated his debts, married another husband. The
first wife has filed a suit against the second for a moiety of the
property of the deceased. The question is whether the claim is
admissible, and whether the first or the second Pat-wife has a
right to dispose of the property left by the deceased husband ?
A. — The widow has a right to prosecute her fellow-widow for
the recovery of the property belonging to her husband, because
he had not passed a deed of separation to her, according to the
usage of his caste. As the second wife has married another
husband, her right to the property of the deceased has become
extinguished.
Khandesh, March 2nd, 1855.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Kemark.— See Act. XV. of 1856.
Q- 4. — Is the brother of a Pat- wife the heir to the property of
a deceased man?
A. — His brother is the heir.
Dharwar, December 20th, 1850.
Authority.— *Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
VYAV., CH. II., S. 6 B.] WIDOW RE-MARRIED.
405
Q. 5. — A deceased man of the Berada (w) caste has left a
Pat-wife, her daughter, and a son of his brother. Who will be
his heir?
A. — If the deceased and his brother were separate the widow
will be the heir. If they were united in interests the brother's
son will be the heir.
Dharwar, July 12th, 1851.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 136, 1. 4;
(3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 6. — There are two persons who claim the right .of inheri-
tance— viz., a Pat-wife and a son of a separated brother. Which
of these is the heir?
^.— The Pat-wife.
Dharwar, March 27th, 1856.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 136, 1. 4;
(3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 7. — Is a Pat- wife or a cousin the nearer heir to a deceased
individual ?
A. — If the cousin was separate in interest from the deceased
the Pat-wife is the nearer heir.
Dharwar, December 21t]i, 1851.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 8. — A woman had a son by her first husband. On the death-
of the husband she took her son to the house of the second
husband, to whom she was married by the Pat ceremony. The
second husband died. Can the son and the widow be his heirs?
A. — The Pat-wife will be the heir of the deceased, and not the
son of her first husband.
Ahmednuggur, January Ath, 1849.
(w) A caste of cultivators in the Southern Maratha Country.
406 HINDU LAW. [BOOK I.
Q. 9. — A woman married by the Pat ceremony to a Gujarathi
of the Bhanga-Sali caste (x) twice went on a pilgrimage without
his leave. When he died, without issue, the wife returned and
claimed his property. Should it be given to her, or to a cousin
who lived separately but performed the funeral rites of the
deceased ?
A. — The wife, who disregarded her husband during his life,
can have no claim to his property after his death. It will go to
the cousin who lived separately from the deceased.
Rutnagiri, February 14:th, 1846.
AuTHOEiTY. — Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — It is nowhere mentioned that simple disobedience of the hus-
band's orders disables the wife from inheriting. The wife, therefore, will be
her husband's heir.
SECTION 7.— DAUGHTEE {y).
Q. 1. — A man died, leaving a widow and a daughter. His
property consists of a house. The widow married another hus-
band. Which of these should be considered the heir to the
house ?
A. — The widow, having married herself to another husband by
the Pat ceremony, has forfeited her right of heirship. The
daughter therefore is the heir.
Poona, April Srd, 1850.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 137, 1. 6; (3*) p. 137,
1. 7 (see Chap. II., sec. 6a, Q.'ll); (4*) Mit. Vyav., f. 55, p. 2, 1. 1 (see
Chap I., sec. 2, Q. 4).
Eemarks. — 1. According to the Hindu Law, as interpreted by some
authorities, the widow loses her right to the estate of her first husband on
account of her unchastity. (See Chap. II., sec. 3, Q. 16. But see Chap. VI.,
sec. 3 c, Q. 6.)
2. Though the re-marriage of a widow is legalised by Act XV. of 1856, a
re-married widow is debarred from inheriting from her first husband by sec. 2
of the same Act [z).
(x) Bhanga-Salis are shopkeepers.
iy) Some commentators have thought that the daughter came in only as a
putrika. The Smriti Chandrika contradicts this (Chap. XI., sec. 2, p. 16).
So, too, the Mitakshara, Chap. II., sec. 2, p. 5.
(z) So as to the Maravers in Madras, though re-marriage is allowed by the
caste law, Muragayi v. Viramakal, I. L. K. 1 Mad. 226.
VYAV., CH. II., S. 7.] DAUGHTER. 407
3. In a divided family the daughter excludes remoter relatives (a), as
divided brothers and their sons (b), the son's widow (c) ; not so in an
undivided family with surviving members (d). See infra, Questions 4 and 10.
The custom subsisting in some Narvadari villages of excluding a daughter
from succession to the village lands rests on a recognised inseparable con-
nection between the original proprietary families and their holdings. So "in
the Panjab, where women do not transmit the right of succession to village
lands; this is because they marry outsiders. . . . The exclusion ... is the
means of keeping the land within the clan and within the village (com-
munity)." Panj. Gust. Law, Vol. II., p. 58. Daughters are generally, but
not always, excluded, ibid. 145, 175, 177. In the same collection may be
noticed a gradual growth of the right of the father to provide for his daughter
out of tribal lands, and to take her husband into his family very like what
occurred in Ireland, and probably in other European countries, in early
times (e).
A custom of male in preference to female inheritance to bhagdari lands in
Gujarat was recognised in Pranjivan v. Bai Reva (/).
4. There is no general usage of the Maratha Country excluding females
from succession to ordinary inam property. A priestly office and the vritti or
endowment appendant to it may stand on quite a different footing (g). See
above Chap. II., sec. 6a, Q. 32. A widow may alien a vritti to provide for
her necessary sustenance, Q. 689, MS. Surat, 19th March, 1852.
5. As to the nature of the estate taken by a daughter, reference may be
made to Amritolal Bhose v. Rajonee Kant Mitter (h), quoted above,
p. 97. According to the Bengal Law, on the daughter's death the
property goes to her father's heirs, to the exclusion of her husband and
daughter (i), and she cannot alien to their detriment (k). In Madras and
Bengal, indeed, even under the Mitakshara, the daughter is held to take only
an estate similar to that of the widow (I). In Bombay the doctrine of the
Mitakshara and of Jagannath has been maintained except as to widows. It
was said that a daughter succeeds to an absolute and several estate in the
immovable property of a deceased father, and has full right over such property
(a) GorkJia v. Raghu, S. A. No. 216 of 1873, Bom. H. C. P. J. F. for
1873, p. 181.
(6) Laxumon v. Krishnahhat, S. A. No. 342 of 1871, ibid, for 1872, No. 23.
(c) 2 Macn. 43; and Colebrooke in 2 Str. 234.
(d) Vinayek Lakshman et al. v. Chimnabai, E. A. No. 44 of 1876; Bom.
H. C. P. J. P. for 1877, p. 170.
(e) See Sullivan's Introd. to O'Curry's Lectures, Vol. I., p. 170 ss.
(/) I. L. E. 5 Bom. 482.
(g) Vyankatrav v. Anpurnabai, E. A. No. 44 of 1874, Bom. H. C. P. J. F.
for 1877, p. 302; Duneswar v. Deoshunkur, Morris's Eeports, Part I., p. 63.
(h) L. E. 2 1. A. 113.
{i) See Col. Dig., Book V. T. 420, Comm. ; 2 Macn. Prin. and Prec. 57.
(k) Doe dem. Colley Doss Bose v. Debnarani Koberanj, 1 Fulton, E. 329;
Musst. Gyan Koowar et al. v. Dookhurn Singh et al., 4 C. S. D. A. E. 330;
2 Macn. H. L. 224; Chotay hall v. Ghunnoo Lall et al., 22 C. W. E. 496 C. E.
(l) Chotay Lall v. Chunno Lall, L. E. 6 I. A. 15; Matta Vaduganadha
Tevar v. Dorasinga Tevar, L. E. 8 I. A. 99.
408 HINDU LAW. [BOOK I.
of disposal by devise (m). In Bombay a daughter succeeds to an absolute
and several estate in the immovable property of a deceased father, and has
full right over such property as to the share which she takes as one of two or
more sisters. (See above, pp. 98, 101, 314, 320.) The property descends
as stridhana to the daughter's heirs, not the husband's (n). See
Question 21. The Privy Council declined to pronounce on this in Hurrydoss
Dutt V. S. Uppoornath Dossee et al. (o). But in Mutta Vaduganadha Tevar
v. Dorasinga Tevar (p) the Judicial Committee say definitively that the
Mitakshara is not to be construed as conferring on any " woman taking by
inheritance from a male a Stridhana estate transmissible to her own heirs."
It would seem, therefore, that the heritage taken by daughters must in future
be regarded as but a life interest, whether with or without the extensions
recognised in the case of a widow, except in cases governed by the Vyavahara
Mayukha, Chap. IV., sec. 10, para. 25, 26 ss (q). See 2 Macn. H. L. 57.
6. Many replies of the Sastris pronounce an illegitimate daughter incapable
of inheriting, but whether that would be so amongst Sudras seems at least
doubtful. See Steele, 180. She is entitled to maintenance and marriage
expenses as a charge on the shares of both legitimate and illegitimate sons,
according to Salu v. Hari (r).
Q. 2. — A widow married a second husband. She has a
daughter by her first husband. The question is whether the
movable and immovable property of the first husband should be
given to his daughter, who is a minor, or to the son of his sepa-
rated cousin.
A. — The daughter is entitled to the property of her father as
his legal heir.
Tanna, July 20th, 1857.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks. — See the preceding question.
Q. 3. — A deceased person has left a daughter and another
daughter's son. How will they inherit the deceased's property?
A. — If the daughter is not married, or if she is in poor circum-
stances, she will take the property of her father and perform his
(m) Haribhat v. Damodarhhat, I. L. E. 5 Bom. 171, and cases there
referred to ; Bahaji bin Narmjam v. Balaji Gannesh, I. L. E. 5 Bom. 660.
(n) Navalram v. Nandkishor, 1 Bom. H. C. E. 209.
(o) 6 M. I. A. 433.
(p) L. E. 8 I. A. 99, 109.
iq) Senganialathammal v. Valayuda Mudali, 3 M. H. C. E. 312.
(r) S. A. No. 315 of 1876 (Bom. H. C. P. J. F. for 1877, p. 34).
VYAV., CH. II., S. 7.] DAUGHTER. 409
funeral rites. The deceased daughter's son, who is a minor, is
entitled to one-fourth of his grandfather's property. When both
the daughters are married, and are in similar circumstances with
regard to their means of livelihood, the surviving daughter and
the deceased daughter's son will be equally entitled to the
property. Each of them should therefore take a half of it.
Ahmednuggur, June 16th, 1848.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 134, 1. 6;
<3) p. 156, 1. 1; (4*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Kemark. — The daughter alone inherits, as the daughter's son is one degree
further removed. He vi^ould, however, share the inheritance v^ith his aunt if
his mother died after her father.
Q. 4. — A man's grandson died, leaving a widow. The man
died afterwards. There are sons of his daughter. The question
is whether the daughter or her sons, or the widow of the grand-
son, will be the heir entitled to inherit the watan of the deceased
grandfather ?
A. — If the grandfather was a member of an undivided family
his grandson's wife cannot be his heir. The right of inheritance
therefore belongs to his daughter and her sons.
Sadr Adalat, September 25th, 1838.
Authorities. — (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I,, sec. 2, Q. 4);
<2) f. 58, p. 1, 1. 5 and 9; (3) Vyav. May., p. 136, 1. 4.
By " undivided " the Sastri means without partition having taken place
between the grandfather and his son or grandson.
Eemark. — The deceased person's daughter alone inherits the estate. In the
case at 2 Macn. Prin. and Free, of H. L. 43, a daughter is preferred to a
daughter-in-law. See also Q. 10, and Musst. Murachee Koour v. Musst.
Ootma Koour (s).
Q. 5. — A deceased person has left a stepmother and a
daughter. Which of these is the heir?
A. — If the stepmother is a separated member of the family
the daughter should be considered the nearest heir of the
deceased.
Ahmednuggur, May 19th, 1859.
Authorities.— (1) Vyav. May., p. 129, 1. 3; (2) p. 20, 1. 3; (3) p. 28, 1. 2;
(4) p. 140, 1. 1; (5) p. 137, 1. 5; (6) Mit. Vyav., f. 46, p. 2, 1. 11; (7) f. 15,
p. 2, 1. 16; (8*) f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
(s) Agra S. Eeports for 1864, p. 171.
410 HINDU LAW. [BOOK I.
Q. 6.— A Tapodhana (t) died, leaving a son. He had also
nominated his sister's son as his son. The son and the foster-
son are both dead. The son has left a daughter. The foster-son
has left a son. The daughter has been married to a Brahman,
whose caste is called Taulkiya Audichya. It appears to be
customary for the Tapodhana to intermarry with this caste. The
question under these circumstances is whether the right of
inheritance belongs to the daughter of the son or the son of the
foster-son ?
A. — A man who has a son has no right to nominate any other
person as his son. It is further to be observed that a man of the
Brahman, or Kshatriya, or Vaisya caste cannot adopt a sister's
son. The sister's son, therefore, is not the legal heir. The
daughter, however she is married, in a Brahman family is the
proper heir. Her right is not affected by her marriage into a
higher caste.
Ahmedahad, October l"th, 1857.
AuTHOEiTiES.— (1) Vyav. May., p. 105, 1. 8 :
" But a daughter's son and a sister's son are af&liated (that is, allowed to
be adopted) by Sudras." (Borradaile, p. 70; Stokes's H. L. B. 61.)
(2) Vyav. May., p. 104, 1. 7; (3) p. 134, 1. 4 (see Auth. 5); (4) p. 137, 1. 5;
(5*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. L, sec. 2, Q. 4).
Eemaek. — But see Gunpatrav et al. v. Vithoha et al. (v). It is not clear,
however, that the parties in that case were, as the headnote says, Vaisyas.
Sed Gopal Narhar Safray v. Hanmant Ganesh Safray (w) and Narsain v.
Bhutton Loll {x) referred to therein.
Q. 7. — There were two brothers who lived separate from each
other. One of them died, leaving a daughter only. She did not
spend any money for the funeral ceremonies of her father. The
brother of the deceased incurred some expense on that account.
The deceased has left a will, bequeathing a portion of the pro-
perty to his daughter. Can she claim more than the bequest, on
the ground of her being an heir of the deceased, or should the
rest pass into the hands of his brother as heir?
A. — A brother who lived separate from the deceased cannot be
(t) The occupation of this person is the same as that followed by Guravas
in the Dekhan. It is washing idols, and having charge of a temple.
{v) 4 Bom. H. C. E. 130 A. C. J.
{w) I. L. E. 3 Bom. 273.
{x) C. W. E. Sp. No. for 1864, p. 194.
VYAV., CH. II., S. 7.] DAUGHTER. 411
his heir merely because he performed his funeral rites. The
daughter is the heir to the whole property; but if the deceased
has left a will specifying the portion to which her claim should
be confirmed, and transferring the rest to his brother, the brother
will inherit according to the will of the deceased; otherwise the
daughter should take the whole property, paying the expenses
incurred on account of the funeral rites.
Ahmednuggur, January 10th, 1848.
Authority. — *Mit. Vyav,, f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — A daughter succeeds in preference to a separated brother (y).
Q. 8. — Two brothers lived separately from each other. One
of them died. Will the daughter, brother, or stepbrother of the
latter succeed to his property?
A. — If the deceased was separate, his daughter will be his
heir; but if he had not separated, his brother or (if there be no
brother) his half-brother will be his heir.
Poona, October 2Srd, 1846.
Authority.— *Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — See C. Hureehur Pershad Doss v. Gocoolanund Doss (z).
Q. 9, — There were two or three brothers, one of whom lived at
the distance of three kos from the others. He was there for
about twenty years. His daughter and son-in-law also lived with
him as the members of the family. He is now dead, and the
question is whether his brother or daughter is his heir?
A. — As the deceased lived in a different village, and as he has
not left a better heir or adopted son, his daughter will be entitled
to his property.
Dharwar, November 18th, 1850.
Authorities.— (1*) Mit. Vyav., f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4)^
(2) Vyav. May., p. 134, 1. 4 (see Auth. 1.); (3) p. 131, 1. 8 :
" Narada . . . Gift and acceptance; cattle grain, houses, land, and
attendants must be considered as distinct among separated brethren; as also
iy) Laxumon Guneshhat v. Krishnahhat, S. A. No. 342 of 1871 (Bom.
H. C. P. J. F. for 1872, No. 23).
{z) 17 C. W. R. 129 C. E.
412 HINDU LAW. [BOOK I.
the rules of gift, income, and expenditure. Those by whom such matters are
publicly transacted with their co-heirs may be known to be separate, even
without written evidence." (Borradaile, p. 97; Stokes's H. L. B. 82.)
Q. 10. — The son of a man died while his father was alive. The
father died afterwards. His daughter-in-law is alive. He has
also a separated brother and a widowed daughter. The question
is: Which of these is the heir?
A. — The rule of succession laid down in the Sastra provides
that when a man separated from his brother dies without leaving
male issue his widow becomes his heir; that in her absence his
daughter; and that in the., absence of the daughter some other
relatives have a right to inherit in succession. A daughter-in-
law is not mentioned in the rule. She cannot, therefore, have
any right to inherit the deceased's property. The daughter is
the heir. A suitable provision must, however, be made for the
support of the daughter-in-law.
Surat, June l^th, 1850.
AuTHOEiTiES.— (1) Vyav. May., p. 137, 1. 7 (see Chap. II., sec. 6a, Q. 11);
(2) Viramitrodaya, f. 203, p. 1, 1. 13; (3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see
€hap. I., sec. 2, Q. 4).
Eemark. — See Kemark to Question 4, supra, and p. 119.
Q. 11. — A man who was himself adopted died, leaving a
daughter. There is a brother of the deceased — that is, a son of
his natural father — who belongs to the same family, but he is a
distant relation of the branch represented by the deceased, being
a cousin of five removes. Who will be the heir to the deceased's
property, the daughter or the cousin?
A. — When a separated member of a family dies without
leaving any male issue his daughter is the heir. If the deceased
had not separated from the other branch his cousin is the heir.
Poona, March 27th, 1850.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 136, 1. 2
(see Chap. I., sec. 2, Q. 3); (3) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I.,
sec. 2, Q. 4).
VYAV., CH. II., S. 7.] DAUGHTER. 413
Q. 12. — A person has died, leaving a daughter who is under
age. Should the certificate of heirship be given to the daughter
or to the cousin of the deceased, with instructions to protect the
property and the heir and to get her duly married?
A. — If the cousin is united in interests with the deceased he
may be granted a certificate, but if he be separate the daughter
of the deceased should be declared the heir and placed under the
protection of her cousin.
Ahmednuggur, October 12th, 1846.
Authorities. — (1*) Mit. Vyav., f. 51, p. 1, 1. 10 :
"But sisters should be disposed of in marriage, giving them, as an allot-
ment, the fourth part of a brother's share." (a) (Colebrooke, p. 286; Stokes's
H. L. B. 398.)
(2*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. L, sec. 2, Q. 4).
Eemarks. — 1. If the deceased belonged to an undivided family the son or
sons of his brother or brothers will inherit, and not his daughter. But she
has to be kept by her relations up to the time of marriage, and to be married
at their expense.
2. If the deceased was divided from his relations the daughter inherits. As
she is a minor she must have a guardian till she is married, which guardian
will be the next paternal relation. 1 Str. H. L. 72.
Q. 13. — A man died. There are his male cousin and a daughter
of ten years. Which of these is the heir? If the cousin be heir
who should be entrusted with the protection of the deceased's
daughter ?
A. — When a man who has separated from his family dies, his-
daughter becomes his heir. When a man who is a member of an
undivided family dies his daughter, as the nearest relation, is
his heir. The cousin, however, will be the heir entitled to inherit
the deceased's watan and land, paying revenue to Government.
The heir will be burdened with the obligation of getting the
deceased's daughter married. If the daughter has already been
married the heir must afford her such protection as she would
have received from her deceased father.
Surat, December 29th, 1846.
(a) Regarding the explanation of the passage, see Colebrooke on Inheri-
tance, p. 286. (Mit., Chap. I., sec. VII., paras. 4, 5.) Though the passage
does not expressly prescribe that the unmarried sisters should receive main-
tenance, this, of course, follows from the injunction to marry them and to give
them a dower.
414 HINDU LAW. [BOOK 1.
Authorities.— (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 51, p. 1, 1. 10 (see Chap. II., sec. 7, Q. 12).
Eemark. — The doctrine of the Sastri as to an undivided family is incorrect.
See the preceding case. He gives the Bengal rule as laid down in the Day a
Bhaga, Chap. XI., sec. II., para. 1. But as Mitramisra points out in the
Viramitrodaya , Transl., p. 181, Jimuta Vahana in another place (Daya.
Bhag., Chap. III., sec. II., para. 37) says that in a partition portions are not
taken by daughters as having a title to the succession, though the quotation
from Devala is not there relied on as Mitramisra supposed.
Q. 14. — A Kulakarani died. There are his daughter, some second
cousins, and their sons. Which of them will inherit the deceased
watan? These relations of the deceased lived separate from
him. The deceased received his share separately. When he
and his wife died his property was considered heirless, and sold
as unclaimed. Who will be the heir to this property?
A. — If the deceased had declared himself separate and had
received his share of the property, including the watan, sepa-
rately, his daughter alone will be his heir. If the watan was not
divided his cousins will be the heirs of the deceased.
Ahmednuggur, June SOth, 1848.
Authorities.— (1) Vyav. May., p. 83, 1. 3; (2) p. 137, 1. 5-7; (3) p. 167,
1. 3; (4) p. 169, 1. 5; (5) p. 156, 1. 5; (6) p. 155, 1. 5; (7) Mit. Vyav., f. 46,
p. 2, 1. 4; (8) f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 15. — A daughter of a person, having orally renounced her
right to her father's property, refused to perform his funeral
rites. A cousin of the deceased, therefore, performed the rites.
The daughter now asserts that she did not renounce her claim
to the inheritance, and wishes to have it recognised. Who will
be the heir under these circumstances, the daughter or the
cousin ?
A. — It appears that the deceased has left a will to the effect
that his property should be given to him who should perform his
funeral rites, whether it were his daughter or the cousin. If ib
could be proved that the former renounced her claim and directed
her cousin to perform the rites and take the property of the
deceased, her claim would be inadmissible; but if no proof of
this be forthcoming, the daughter by law is' the heir and entitled
VYAV., CH. II., S. 7.] DAUGHTER. 415
to the inheritance. In this case the daughter would be obliged
to pay the cousin the expenses which he might have incurred in
performing the ceremonies.
Ta7ina, December 29th, 1848.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 137, 1. 5;
(3) p. 138, 1. 3; (4*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 16. — Will a man's property descend to his married
daughters or to his brother's wife?
A. — If the deceased was a member of an undivided family,
and has left no sons, his brothers will be his heirs, and in the
absence of brothers their wives; but if the deceased had sepa-
rated [from his brothers] his daughters will be his heirs.
Poona, December Slst, 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 (see Chap. I., sec. 2, Q. 4).
Remark. — The brother's widove inherits only in case the deceased (A.) and
his brother (B.) were united in interests, and A. died before B. For in this
case the share of A. would fall first to B. (Authority 1), and next to B.'s
wife (Authority 2).
Q. 17. — An inhabitant of Gujarath had a daughter-in-law who
was pregnant at his death. He therefore transferred his pro-
perty by a deed of gift to his son-in-law, on condition that if the
result of the pregnancy should prove a son the whole of his
property should be given to him; that if a daughter, her marriage
expenses should be defrayed from the property and his daughter-
in-law supported during her lifetime from the same source.
After having made a deed of gift to this effect the man died.
His death wasi followed by that of his daughter-in-law without
issue, and of his son-in-law. There is only a daughter of the
man — that is, the widow of his son-in-law, who obtained the
gift. Can she be considered the legal heir to the property?
A. — When a man maJies a gift of any thing and at the same
time retains his proprietary right to it, the transaction cannot be
considered a gift. This is one of the rules of the Sastra; and
another is that when a man dies without leaving male issue and
wife, his daughter is his legal heir. In the case under reference
the man who made the gift of his property retained his right to
416 HINDU LAW. [BOOK I.
it, as shown by the condition of the grant that the property was
wholly to pass to the son of his daughter, in case he should come
into existence. The deed of gift is therefore illegal, and when it
is set aside the daughter of the man succeeds.
Khandesh, January 4:th, 1853.
Authorities.— (1) Vyav. May., p. 196, 1. 5; (2) p. 134, 1. 4 (see Auth. 4);
(3) p. 121, 1. 2; (4*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — The gift may, however, be accompanied by a trust or duty to be
fulfilled by means of it or in return for it (b) It must be completed by
possession (c), at least as against a subsequent transferee from the donor (d).
When the purpose of a gift is not fulfilled, as by non-execution of the trust or
other annexed duty, the Hindu Law annuls the donation, and this is so
though the proposed consideration (for so it is regarded) fail but in part (e).
The gift is thus attended with a kind of condition subsequent of defeasance.
Under the Eoman law, as under the codes derived from it, a gift was revocable
by the donor for ingratitude (/). For non-satisfaction of charges it could be
revoked by his successors (g). The Indian Courts do not now cancel the gift;
they enforce the annexed duty according to the equitable doctrine of trusts (/i),.
subject to the limitations noticed above, pp. 179 ss.
Q. 18. — Can the daughter of a deceased Mahar dedicated as
a Murali, as well as her son, be considered heirs to his property ?
A. — The Sastras are silent as to the practice of dedicating
females as Muralis. The Murali and her son would, however,
according to the custom of the caste, succeed to the property
left by her father.
Dharwar, August lltk, 1857.
Authority. — Mit, Vyav., f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
(h) Ramhhat v. Lakshman, I. L. E. 5 Bom. 630.
(c) Ihid., Vithalrao Vasudev v. Chanaya, B. H. C. P. J. F. for 1877,
p. 324; Lalluhhai v. Bai Amrit, I. L. E. 2 Bom. 299; Harjiwan Anandram
V. Naran Haribhai, 4 Bom. H. C. E. 31 A. C. J.
(d) 2 Macn. H. L. 207; 2 Str. H. L. 427.
(e) See Col. Dig., Book II., Chap. IV. T. 56, Comm.
(/) See Col. Obi., § 657 ss.
ig) Goud. Pand., p. 201.
(h) See the Transfer of Property Act, IV. of 1882, sees. 126, 129; Indian
Trusts Act, II. of 1882, sees. 1, 45, 56, 61; Specific Eelief Act, I. of 1877,
sec. 54; Acts XXVII. and XXVIII. of 1866; Ram Narain Singh v. Ramoon
Paurey, 23 C. W. E. 76. Acts II, and IV. of 1882 are not in force in
Bombay, and where Act II. is in force its operation amongst Hindus is much
limited by sec. I., which reserves the classes of trusts which most frequently
form the subjects of litigation.
VYAV., CH. II., S. 7.] DAUGHTER. 417
Q. 19. — A deceased person has left no male issue, but has left
four daughters. One of them became a widow when she was a
child, and therefore lived in her father's house, making herself
useful to him as a servant. The deceased has a nephew, who
lived separate from him. Which of these two persons will be
the heir?
A. — When a deceased person has no widow his daughters are
his heirs. Of these the one who is not married has a superior
claim, and when all are married the one in poor circumstances
has a superior claim. Those who are in good circumstances are,
however, entitled to a small share of the property. Small shares
of the property should be given to the wealthy daughters and the
rest to the one in poor condition. The nephew, whose interests
are separate, has no right whatever.
Ahmednuggur, September 21st, 1847.
Authorities. — (1) Vyav. May., p. 137, 1. 6 :
" If there be more daughters than one they are to divide (the estate) and
take each (a share). In case also where some of them are married and some
"unmarried, the unmarried one alone (succeeds), by reason of this text of
Katayayana : ' Let the widow succeed to her husband's estate provided she
be chaste, and in default of her, the daughter inherits, if unmarried.
" Among the married ones, when some are possessed of (other) wealth and
others are destitute of any, these (last) even will obtain (the estate). From
this text of Gautama : ' A woman's property goes to her daughters, unmarried,
unprovided for. Unprovided, destitute of wealth. Those acquainted with
traditional law hold that the word woman's (wife's) includes the father's
also.'" (Borradaile, p. 103; Stokes's H. L. B. 86.)
(2) Vyav. May., p. 83, 1. 3; (3) p. 167, 1. 5; (4) p. 159, 1. 5; (5) p. 156,
1. 5; (6) p. 155, 1. 5; (7) Mit. Vyav., f. 46, p. 2, 1. 14; (8*) f. 58, p. 1, 1. 6
(see Auth. 1).
Eemaeks. — 1. Comparative poverty determines the preference of married
daughters to succeed (i). Failing a maiden daughter the succession devolves
on an indigent married daughter, though childless (k).
2. The different position of daughters in relation to each other as heirs of
their father's property in Bombay and elsewhere is considered above, pp. 98-101.
3. In Amritlal Bose v. Rajoneckant Mitter (I) (a Bengal case), it is said
that a heritable right vested in one of two sisters at her father's death is
not extinguished by her becoming a childless widow, in whom as such the
right could not have vested. She may therefore succeed td her sister who
took at first as the preferable heir, and so exclude that sister's son, contrary
to the law in Bombay. The Hindu law does not deprive, on account of
(t) Bakuhai v. Manchhahai, 2 Bom. BE. C. E. 5; Poli v. Narotum Bapu
et al., 6 Bom. H. C. R. 183, A. C. J.
(A;) Srimati Uma Deyi v. Gokoolanund Das, L. R. 5 I. A. 40.
(Z) L. R. 2 I. A. 113.
H.L 27
418 HINDU LAW. [BOOK I.
supervening defects (not amounting to an incapacity for holding property), of
an inheritance once actually taken or "vested in possession"; see the case
of the incontinent widow, below. But where successive heirs are provided to
the same person, the analogy of the widow's estate and those following it
would seem to point to the temporary estate being regarded as a prolongation
of the original one, and the claims of alleged heirs being estimated according
to their condition at the end of the derived interest immediately preceding.
The judgment, therefore, may be regarded as a substantial extension of the
rights of those having latent interests at the death of a father.
Q. 20. — A man of the Sudra caste has left two widowed
daughters. Which of them will be his heir?
A. — The one who is wealthy cannot claim the property. The
poor one will be his heir. If both are in similar circumstances
each should receive half the property.
Shohpoor, September 26th, 1846.
Authority. — *Vyav. May., p. 137, 1. 6 (see Chap. II., sec. 7, Q. 19).
Kemark. — See the Eemark to Q. 19.
Q. 21. — A deceased person has left two daughters, one of
whom applied for a certificate that she is his heir. Should it be
given to her?
A. — The two daughters have equal right to the property of the
deceased, and one of them may therefore have a certificate
stating her right to one-half of it.
Poona, October 12th, 1846.
Authority. — Vyav. May., p. 137, 1. 6 (see Chap. II., sec. 7, Q. 19).
Remark. — In the cases of Kattama Nachiar et al. v. Dorasinga alias Gauri-
vallaba (m) and Radhakishen v. Rajah Ram Mundul et al. (n), different views
are taken of the devolution of the property inherited by daughters. See the
section on Stridhana, p. 257 es., and above, Q. 1.
SECTION 8.— DAUGHTEE'S SON.
Q. 1. — A man died. There is a widowed daughter of his
daughter, and a son of his other daughter. Which of these is the
heir? And if both are heirs, in what proportion should they
share the property?
A. — The daughter's son is the heir.
Surat, June 14th, 1853.
(m) 6 M. H. C. R. 310.
(n) 6 C. W. E. 147.
VYAV., CH. II., S. 8.] daughter's SON. 419
Authorities. — (1) Viramitrodaya, f. 205, p. 2, 1. 2 (see Auth, 2) ; (2*) Mit.
Vyav., f. 58, p. 1, 1. 9 :
"By the import of the particle ' also' (section I., § 2), the daughter's son
succeeds to the estate on failure of daughters. Thus Vishnu says : ' If a man
leave neither son, nor son's son, nor (wife, nor female) issue, the daughter's
son shall take his wealth. For in regard to obsequies of ancestors, daughter's
sons are considered as son's sons.'" (Colebrooke, Mit., p. 342; Stokes's
H. L. B. 441.)
Eemarks. — 1. Daughters' sons take per capita (o) They are excluded by
the survival of any daughter (p). But in Radhakishen v. Rajnarain (q), a
Bengal case, it was held that the son of a daughter who was unmarried at
the time of her succession succeeds to the paternal estate, to the exclusion of
her married sisters.
2. According to the Mitakshara a daughter's son takes his maternal grand-
father's estate as full owner, and on his death such estate devolves on his
heirs, and not on the heirs of his maternal grandfather (r).
Q. 2. — A man, having survived his son, died, leaving a
daughter-in-law and a daughter's son. Which of the two succeeds
to his property?
A. — The daughter-in-law, by virtue of her heirship to the son
of the deceased, will be his heir. The daughter's son will not be
the heir. His right is not superior to that of the daughter-in-law,
because it is declared in the Sastras that no son should be recog-
nised as heir in the Kali age other than the begotten and the
adopted.
Khandesh, 1848.
Authorities. — (1) Vyav. May., p. 134, 1. 4; (2*) Mit. Vyav., f. 58, p. 1,
1. 9 (see Chap. II., sec. 8, Q. 1).
Eemarks. — 1. The daughter's son inherits, according to Auth. 2, if the
grandfather died after his son. Otherwise the daughter-in-law is to be pre-
ferred, as in Mahalaxmi v. Grandsons of Kripa Shookul (s), contra B. Shen
Sulrae Singh v. Balwunt Singh (t). In Amhawow v. Rutton Krishna
et al. (v) it was held that a daughter's son precedes a grandson's widow. See
sec. 7, Q. 4.
2. The Sastri's remark refers to " the putrika-putra , " the son of an
appointed daughter, who, according to the ancient law, was reckoned amongst
the " twelve sons," but whose heirship in that character would not now be
recognised.
(o) Ram Swaruth Pandey et al, v. Baboo Basdeo Singh, 2 Agra H. C. E.
168; Ramdhun Sein et al. v. Kishenkanth Sein et al., 3 C. S. D. A. E. 100.
(p) Mu^st. Ramdan v. Beharee Lall, 1 N. W. P. H. C. E. 114.
(q) 2 Wyman's E. Civil and Cr. Eeporter, 152.
(r) Sihta v. Badri Prasad, I. L. E. 3 All. 134.
. (s) 2 Borr. 557.
(t) Cal. S. D. A. E. for 1838, p. 490.
(v) Eeports of Selected Cases (1820-40), 1st edition p. 132, 2nd edition, p. 150.
,420 HINDU LAW. [BOOK I.
Q. 3. — A man died. There are a son of his daughter and a
second cousin. Which of these is the heir?
A. — If the deceased was a separated member of the family his
daughter's son^ is the heir. If he and the second cousin have
lived as members of an undivided family the cousin will be his
heir.
Khandes'h, August 25th, 1853.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 138, 1. 2 (see Auth. 4);
(3*) Vyav. May., p. 136, 1. 2 (see Chap. I., sec. 2, Q. 3); (4*) Mit. Vyav.,
f. 58, p. 1, 1. 9 (see Chap. II., sec. 8, Q. 1).
Q. 4. — A Brahman died without male issue. Whilst the funeral
rites, including the ceremony of " Sapindi," were performed
from the first day by his brother's son, in conformity with the
deceased's direction, his daughter's son performed them from
the eleventh day. Which of these will be the heir of the deceased?
If the brother's son is entitled to the property, can the costs of
the funeral ceremonies performed by the daughter's son be paid
to her?
A. — When a person who had separated from his family dies
without male issue, his first heir is his widow. In her absence
his daughter, and if a daughter is not in existence her son, is the
heir. In the case under reference the daughter's son, who per-
formed the funeral rites, is the heir. The nephew, who had
separated from the deceased and who performed the rites in
accordance with the written directions left by the deceased, can-
not be considered the heir, though he is entitled to the costs of
the rites.
Tanna, September dth, 1847.
Authorities. — (1) Vyav. May., p. 138, 1. 2 :
(Vishnu): — "If a man leave neither son nor son's son, nor (wife, nor
female) issue, the daughter's son shall take his wealth. For in regard to the
obsequies of ancestors, daughter's sons are considered son's sons." (Borra-
daile, p. 103; Stokes's H. L. B. 87.)
(2) Manu IX. 136 :
" By that male child whom a daughter, whether formally appointed or not,
shall produce from a husband of an equal class, the maternal grandfather
becomes the grandsire of a son's son; let that son give the funeral oblation
and possess the inheritance." (Colebrooke, Inh., p. 343; Stokes's H. L. B.,.
441.)
VYAV., CH. II., S. 9.] MOTHER. 421
Q. 5. — Can the male offspring of a Sudra woman by her second
husband succeed to her father's property?
A. — As there is no prohibition in the Sastra against re-marriage
by a woman of the Sudra caste, it is generally resorted to. The
male offspring by a re-marriage will therefore be the legal heir to
his maternal grandfather's property.
Sadr Adalat, November 11th, 1838.
AuTHOEiTiES.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 58, p. 1, 1. 9 (see
Chap. II., sec. 8, Q. 1); (3) Manu IX. 132; (4*) Nirnayasindhu, Part III.,
Pra. I., fol. 63, p. 2, 1. 7 :
Since (the following passage) is quoted in the Hemadri :
" The re-marriage of a married woman, the (double) share given to an
elder brother, the killing of cows, the (appointment of a brother to cohabit
with the) brother's wife, and (the carrying of) a water pot, these five (actions)
ought to be avoided in the Kali (age)."
Eemarks. — 1. The Hindu Law of the Sastras forbids the re-marriage of
widows of all classes. (See Auth. 4.) Consequently the son of a re-married
woman is to be considered illegitimate, and as such not qualified to inherit
except under caste custom. See Chap. II., sec. 3, Q. 16.
2. As the marriage of widows is legalised by Act XV. of 1856, the Pat-
wife's son inherits. See above, p. 390.
SECTION 9.— MOTHEK.
Q. 1. — A person executed a bond and a deed of separation in
the name of a woman and her son. Can the woman sue on the
bond after the death of her son ?
A. — The mother, being the heir of her son, can do so.
Poona, August llth, 1845.
AuTHOEiTY.— *Mit. Vyav., f. 58, p. 1, 1. 11 :
" On failure of those heirs, the two parents, meaning the mother and the
father, are successors to the property.
" Although the order in which parents succeed to the estate does not clearly
appear (from the tenor of the text, section I., § 2), since a conjunctive com-
pound is declared to present the meaning of its several terms at once, and the
omission of one term and retention of the other constitute an exception to that
(complex expression), yet as the word ' mother ' stands first in the phrase into
which that is resolvable, and is first in the regular compound ' mother and
father,' when not reduced (to the simpler form, pitarau, 'parents') by the
omission of one term and retention of the other, it follows from the order of
the terms and that of the sense which is thence deduced, and according to the
series thus presented in answer to an inquiry concerning the order of sue-
422 HINDU LAW. [BOOK I.
cession, that the mother takes the estate in the first instance, and on failure
of her the father." (Colebrooke, Mit., p. 344; Stokes's H. L. B. 441-2.)
Kemaeks. — 1. On the mother's death the succession goes to the then next
heir of the son, according to P. Bachirajee v. V. Venkatappadu (w). See
above, pp. 102, 312, 321.
2. Manu gives apparently contradictory directions as to the precedence of
the two parents. (See Manu IX. 185, 217.) Vijnanesvara's argument is
controverted by Nilakantha, Vyav. May., Chap. IV., sec. 8, p. 14. The
Smriti Chandrika, too, rejects it. See Chap. XI., sec. 3 (x).
3. In Gujarath the father is preferred to the mother as heir to their son (y).
4. A mother of a Girasia was held entitled to receive the Girasi haks from
Government upon the death of her son (z).
Q. 2. — A son of seven years of age of a man of the Parit caste
died. His father is in prison. The son's mother has apphed for
a certificate of heirship. Can it be granted to her?
A. — The father is the heir of his son if he should die before his
marriage, and in the absence of the father his mother is the heir.
Poona, April ISth, 1857.
Authorities.— (1) Vyav. May., p. 138, 1. 3; (2) Mit. Vyav., f. 58, p. 1,
1. 11 (see Chap. II., sec. 9, Q. 1).
Eemarks. — 1. There are no special rules regarding the succession to the
property of an infant.
2. If the property of the deceased son is separate property, as the context
of the question seems to indicate, consisting in presents from relations or
friends, it falls under the general rules which regulate the succession to the
property of a separated person who has no male issue, and consequently the
mother inherits before the father.
See the case of Narasapa v. Sakharam (o) and the Introduction, section on
Stridhana. The estate which the mother takes in the property of her deceased
son is, according to the case, similar to that which a widow takes in that
of her deceased husband. See also P. Bachiraja v. Venkatappada (h).
(w) 2 Mad. H. C. K. 402.
(x) In the oldest form of the Salic law the inheritance is given to the
mother next after the sons. After her came the brother and sister on equal
terms, and after them the mother's sister. In the next stage we have " if
there be no mother or father " ; then "if no father or mother." The " sorores
patris " in like maanner acquire precedence in the later law over the " sorores
matris." But female succession, first to land at all, and then to the " terra
salica " (probably the estate of the Hall — that is, for maintenance of the
household) is throughout excluded. See Hessels and Kern, Lex. Sal. 379-386.
(y) Khodhahhai Mahiji v. Badhar Dala, I. L. E. 6 Bom. 541.
(z) Bai Umedha v. The Collector of Sural, E. A. No. 24 of 1867. Decided
30th November, 1870 (Bom. H. C. P. J. F. for 1870).
(a) 6 Bom. H. C. E. 215 A. C. J.
(b) 8 M. H. C. E. 402.
VYAV., CH. II., S. 9.] MOTHER. 423
Q. 3. — In the case of some money being due to a deceased
person, who has a right to claim the payment, his mother or his
widow, the latter being notoriously adulterous, and pregnant by
illicit intercourse?
A. — The mother has the right to recover the money, even if
she be separate. The widow has forfeited her right in conse-
quence of her bad conduct.
Ahmednuggur, September 25th, 1849.
Authorities.— (1) Vyav. May., p. 136, 1. 8 :
" But a wife who does mahcious acts injurious to her husband, who acts
improperly, who destroys his effects, or who takes delight in being faithless
to his bed, is held unworthy of separate property." (Borradaile, p. 102;
Stokes's H. L. B. 86.)
(2) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4); (3*), f. 58,
p. 1, 1. 11 (see Chap. 11., sec. 9, Q. 1).
Eemaek. — "Even if she be separate." It does not matter whether the
mother lived with her son or not, since she inherits, on the exclusion of
deceased's widow, as the nearest heir to a " separate, not reunited, person
who has no male issue."
Q. 4. — A man died, leaving two widows. One of them had a
son, who also died afterwards. Which of the survivors is entitled
to the property of the deceased as his heir?
A. — The son became heir of the deceased father, and when
the son died his mother became his heir. The stepmother is not
his heir.
Dharwar, October ISth, 1852.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4) ;
(2) f. 55, p. 2, 1. 7; (3) f. 58, p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1); (4)
Vyav. May., p. 83, 1. 7.
Q. 5. — A man died leaving two sons by two different wives.
The son of the younger wife was a minor, and his share was
therefore deposited by the father with a banker. The son after-
wards died. Has his mother or his stepmother the right to
inherit his property?
A. — The mother of the deceased.
Ahmednuggur, April Srd, 1857.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 8; (2) f. 61, p. 1, 1. 3; (3)
f. 46, p. 1, 1. 9; (4*) f. 58, p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1); (5) Vyav.
May., p. 2.
424 HINDU LAW. [BOOK 1.
Q^ 6. — On the death of a man his estate was entered in the
pubhc records in the name of his son. The son subsequently
died, and there remained two claimants — namely, the son's
mother, who was married by ** Pat," and his stepmother, who
was married by " Lagna." In whose name should the estate be
entered ?
A. — If the widows live together the one who by age and
abilities appears superior should be considered entitled to have
the property registered in her name. If they are separate, the
mother of the deceased son should have a preference to the
other.
Dharwar, May 5th, 1858.
Authorities.— (1) Mit. Vyav., f. 20, p. 1, 1. 16; (2*) f. 58, p. 1, 1. 11
(see Chap. II., sec. 9., Q. 1).
Eemark. — The Sastri seems to have thought of the case of two widows who
after their husband's death became co-owners of his property (c). In this
case the land must be entered in the name of the deceased son's mother, since
she is the sole heir of his property.
I
Q. 7. — A man died leaving a widow and, a son. He held a
Desaigiri Watan, which was his ancestral property. The mother
and the son used to manage the watan conjointly. The son
afterwards died, leaving a widow and a male child. The latter
died subsequently. The question is whether the mother or the
grandmother of the male child is entitled by right of inheritance
to take the Desaigiri and other property? Are both of them
entitled as heirs?
A. — The mother is the nearest relation of the child. She is
entitled to inherit the property of her son. She cannot, however,
transfer the Desaigiri, &c., to others by sale, gift, or mortgage.
She should live upon the proceeds of the property.
Surat, July 20th, 1854.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 13 (see Auth. 2); (2*) f. 5&,
p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1); (3) Vyav. May., p. 138, 1. 5 (see
Auth. 2); (4) p. 135, 1. 2 (see Chap. II., sec. 6a, Q. 6); (5) Manu IX. 187.
(c) Bhugwandeen Doohey v. Myna Baee, 11 M. I. A. 487. Above, p. 95.
VYAV., CH. II., S. 9.] MOTHER. . 425
Eemark. — In Narsappa v. Sakharam (d) it was held that a mother
inheriting from a son takes the same estate as a widow from her husband.
In Sakharam v. Sitaha (e) this is said to be settled law. The Sastris in such
cases as Q. 3 agreed with the answer here given that the mother inheriting
becomes herself the proposita for any further descent. See further above,
p. 314. The Mitakshara, Chap. I., sec. 1, paras. 12, 13, says that where
there is heritage there is ownership, and in Chap. II., sec. 1, paras. 12,
39, that the widow, and failing her the parents, take the heritage of a
separated sonless man. The daughter's absolute right is recognised as arising
under the same rule as applies to the widow and the parents (/). The mother's
estate, therefore, like the widow's, must, according to the recent decisions, be
regarded as anomalous, and limited by principles foreign to the Mitakshara.
See above, pp. 312, 316, 319.
Q. 8. — A man possessed a house, and held some cash allow-
ances called Desaigiri, Muglai, Sirpava Chirde, and Vazifa. He
died leaving a widow and a son. The latter, who was a minor,
died subsequently. The paternal uncle of the man received the
Watan allowances. The house was also in his possession. He
received a certificate declaring him to be the heir of his nephew.
The man's widow has obtained a certificate declaring her to be
the heir of her son. On the strength of this certificate she claims
the Watan allowances. These allowances are the ancestral pro-
perty of the family. Supposing the deceased son's grandfather
had divided his property between himself and his brother, to
whom will the right of claiming the house and the allowances
belong ; and if the division has not taken place, to whom will the
same right belong?
A> — On the death of a man his son becomes his heir. His
right is not affected by the separation or union of the father and
other members of the family. According to this rule the son in
the question became heir of his father. On his death his mother
■can claim to be the heir of her son. She therefore has a right
to the Watan, house, and other property of the deceased.
Surat, July SOth, 1865.
Authorities.— (1) Vyav. May., p. 83; (2) Viramitrodaya, f. 193, p. 1, 1. 2;
<3) Manu IX. 137; (4) 163; (5) Mit. Vyav., f. 58, p. 1, 1. 11 (see Chap. II.,
sec. 9, Q. 1).
Remark. — The mother inherits only in case her husband or son had
separated from the rest of the family.
(d) 6 Bom. H. C. E. 215.
(e) I. L. R. 3 Bom. 353.
(/) See Harihhat v. Damodliarhat, I. L. R. 3 Bom. 171.
426 HINDU LAW. [BOOK I.
Q. 9.— A woman of the Sudra caste had a son by her first
husband. She married herself by the Pat ceremony to another
husband, with whom she and her son lived. When the son came
to age he was married at the house of his mother's second hus-
band. A few years afterwards the son and his wife died without
issue. The question is: Who should be considered his heir?
A. — The mother is the heir, and not her second husband.
Poona, November 2Qth, 1851.
Authorities.— (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 58, p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1).
Kemark. — According to Act XV., 1856, sec. II., the re-married mother
cannot, it might seem, inherit from her first husband's son; but the decisions
recognise her heritable right. (See also Dig. Vyav., Chap. VI., sec. 3 c, Q. 7.)
SECTION 10.— FATHEE.
Q. 1, — Should the younger brother or the father of a deceased
person receive the certificate of heirship?
A. — The father is the proper heir, but the younger brother
may obtain the certificate if his father has no objection to it.
Butnagherry, June 11th, 1846.
Authorities. — (1*) Mit, Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2,
Q. 4); (2*) Mit. Vyav., f. 68, p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1).
Eemark. — Vide Bajee Bapoojee v. Venoohai, quoted in sec. 11, Q. 1.
Q. 2. — A man brought up a son of another man and got him
married. At the time of the marriage he bestowed certain neces-
sary jewels and articles of dress on the bride. The son died
subsequently without issue. His widow contracted a Pat mar-
riage with another man. It has therefore become necessary for
the woman to restore the jewels and the clothes. The question
is whether the property should be taken by the father of the
boy or the widow of the man who brought him up ?
A. — The son was not adopted, but was simply brought up and
protected by the man. His father therefore has a right to the
property mentioned in the question.
Surat, April 11th, 1850.
Authorities. — (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see chap. I., sec. 2, Q. 4);
(2*) f. 58, p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1).
VYAV., CH. II., S. 11.] BROTHERS. 427
SECTION 11.— BEOTHEES.
Q. 1. — Two brothers lived separately from each other for thirty-
two years. One of them, who had brought up a girl and got her
married, died. The question is : Who shall be considered his
heir?
A. — The surviving brother is the heir, and not the foster-
daughter.
Rutnagherry, March Stk, 1851.
Authorities. — (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).
Eemark. — The brother inherits before the widow of a pre-deceased son (g).
A separated father would exclude a separated full brother, as well as half-
brothers, who, again, being united with their father, would exclude the full
brother of the original proprietor (/;).
Q. 2. — A Paradesi kept a woman by whom he had some
daughters. There are also his brothers. The Paradesi is dead,,
and the question is : Who should be considered his heir ?
A. — The brothers.
Tanna, June 4:th, 1852.
Authority. — Mit, Vyav., f. 55, p. 2, 1. 1 (see Chap. I. sec. 2, Q. 4).
Q. 3. — A man had three sons and a nephew (brother's son),
whose father died when he was only three days old. The man
had brought the young child up with his sons. Two sons sepa-
rated themselves from the rest of the family, while the third and
the nephew lived as an undivided family. The nephew died, and
his widow remained with the third son, who also afterwards died.
The question is whether the widow of the nephew of the two
separated sons should succeed to the property of the deceased
person ?
A. — The wife of the nephew has a better claim, in case the
nephew and the third son had an identity of interest.
Dharwar, September SOth, 1857.
ig) Venkata v. Holyava, S. A. No. 60 of 1873 (Bom. H. C. P. J. F. for
1873, No. 101).
(h) Bajee Bapoojee v. Venoohai, S. A. No. 282 of 1871; {Ihid. for 1872,
No. 41).
I
428 HINDU LAW. [book I.
AuTHOEiTY.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — The facts of the case appear to be these. One, C, of three
brothers, A., B., C, was united in interests with a married first cousin
(bhratrivya) D. The other two brothers had separated from the third. The
first cousin D. died. After his death his share became the property of the
brother C, as women cannot inherit in an undivided family. After C.'s death
his brothers, A. and B., will therefore inherit, and not D.'s wife, because
she is only a Sapinda relation excluded by co-owners.
Q. 4. — A person divided his property between his legitimate
and illegitimate sons. One of the (illegitimate) brothers died
without issue. Will the legitimate or illegitimate members of the
family be his heirs?
A. — The relatives of the illegitimate branch will be the heirs.
Nuggur, 1845.
Authorities.— (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2) f. 58, p. 2, 1. 5 :
" Among brothers, such as are of the whole-blood take the inheritance ii
the first instance, undei* the text above cited; 'to the nearest sapinda the
inheritance next belongs ' ; since those of the half-blood are remote through
the difference of mothers." (Colebrooke, Mit., p. 347; Stokes's H. L. B. 445.)
Eemark. — It is not clearly stated whether the surviving relations of the
deceased are all his brothers, or some brothers and some nephews, and it is
therefore impossible to say whether the Sastri's answer is correct. The order
of inheritance is this : brothers of the whole-blood, half-brothers, sons of
brothers of the whole-blood, sons of brothers of the half-blood (i). (See above,
sec. 3, Q. 12, and pp. 103, 104.)
Q. 5. — A Marwadi had three wives, of whom the first had two
sons and the second and third one each. The husband and two
wives died. The widow who survived was the mother of the two
sons. One of these sons died before marriage. The question is :
Who will be his heir, the uterine brother or the half-brothers ?
A. — The order of heirs laid down in the case of death of a
person who has no male issue, and who is a " Vibhakta," or a
member of a divided family, is as follows : The widow, daughter,
daughter's son, father, mother, uterine brothers, and half-
brothers. When one fails the other succeeds. If the deceased
had separated and was unmarried, his immediate heir will be his
(i) So in Burdum Deo Roy v. Punchoo Roy, 2 C. W. E. 123.
VYAV., CH. II., S. 11.] BROTHERS. 429
father, and in his absence his mother. If he had not separated,
his uterine and half-brothers, who would be entitled to equal
shares of the deceased's property.
Khandesh, October 20t]i, 1849.
Authorities. — (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 58, p. 1, 1. 11 (see Chap. II., sec. 9, Q. 1).
Eemarks. — Father, Mother. — It should be mother, father (k). See above,
p. 101.
In the case of Gavuri Devamma Garu v. Ramandora Garu (l), there is an
exposition of the law relating to impartible property belonging, as an undivided
estate, to a Hindu family, or to one branch of such a family, jointly as to the
members of the branch, but separately as to the other branches, with which
a community of interests exists as to other property. The Court say (p. 109) :
"We are of opinion, therefore, that the sound rule to lay down with
respect to undivided or impartible ancestral property is that all the members
of the family who, in the way we have pointed out, are entitled to unity of
possession and community of interest according to the Law of Partition, are
coheirs, irrespectively of their degrees of agnate relationship to each other,
and that, on the death of one of them leaving a widow and no near sapindas
in the male line, the family heritage, both partible and impartible, passes to
the survivors or survivor to the exclusion of the widow. But when her
husband was the last survivor the widow's position, as heir relatively to his
other undivided kinsmen, is similar to her position with respect to his divided
or self and separately acquired property."
2. A brother of the whole-blood has precedence in succession over a half-
brother in Bengal (m). Gavuri Devamma Garu v. Ramandora Garu is dis-
cussed by the Judicial Committee in Periasami v. Periasami (n). Their
Lordships thought that the property, by the elder brother's renunciation,
became that of the younger brothers as if it had fallen to them in an ordinary
partition. See p. 75 of Eeport.
Q. 6. — A Sannyasi is dead. There are his brother, a grandson
of his other brother, and a widow of the third. Which of these
will be his heir?
A. — That person will be the heir to whom the property might
have been transferred previous to the man's becoming a Sann-
yasi. But if the property was not transferred to anyone, and if
it constitutes what the man possessed before he became a Sann-
(k) See Musst. Pitum Koonwar v. Joy Kishen Doss et al., 6 Cal. W. E.
101 C. E.
il) 6 M. H. C. E. 93.
(m) Sheo Sundri v. Pertheo Singh, L. E. 4 I. A. 147.
in) L. E. 5 I. A. 61.
430 HINDU LAW. [BOOK 1.
jasi, it will be inherited by his brother, and in the absence of a
brother by a brother's son; and when there is no such son, the
widow of a brother. The property which may have been acquired
during the time the man was Sannyasi, such as his books, wooden
sandals, math, &c., will be inherited by his virtuous disciple.
Ahmednuggur, September 2nd, 1849.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 140, 1. 1;
(3*) Mit. Vyav., f. 58, p. 2, 1. 5 (see Chap. II., sec. 11, Q. 4; (4*) f. 55, p. 2,
1. 1 (see Chap. I., sec. 2, Q. 4).
Kemaeks. — 1. Nephews cannot take by representation in competition with
the surviving brothers of a deceased co-sharer (o). See also Mit., Chap. II.,
sec. 4, p. 8.
2. But it should be borne in mind that by the Mitakshara law the rules
of inheritance come into operation only as to the sole estate or the separate
estate of the propositus. In a united family there is no room for succession
of "brothers and their sons," the joint estate is theirs already; it is only a
participator who is removed. Even the widow, the first in the series of heirs
to a sonless man, succeeds only if he was separate. See Mit., Chap. II.,
sec. 1, paras. 2 and 39. Much less can the daughter or brother succeed to the
same estate (p).
SECTION 12.— HALF-BKOTHERS (q).
Q. 1. — There were two half-brothers of the Rajput caste. One
of them died, leaving his property in the possession of his widow.
She contracted a Pat marriage with another man. The question
is whether the widow or the half-brother has right to the property
of the deceased?
A. — The widow of the deceased, having re-married by the rite
of Pat, has forfeited her claim to her former husband's property.
The nephew has right to inherit it.
Broach. June 29th, 1852.
(o) Rampershad Teioary v. Sheochurn Doss, 10 M. I. A. 504.
(p) See above, Chap. I., sec. 2, Q. 6, Eemark ; and Rajhuhanand Doss v.
Sadhuchurn Doss, I. L. E. 4 Cal. 425.
(q) As to the precedence of half-brothers over full-brothers' sons, the Smriti
Chandrika, Chap. XI., sec. 4, para. 6, follows the Mitakshara, while the
Vyav. May., Chap. IV., sec. 8, p. 16, reverses the order. Macn., Vol. 2,
p. 11, says that representation does not extend to collaterals, but the case of
which he intends to give the effect goes only so far as to say that half-
brothers take after full-brothers and exclude half-brothers' eons.
VYAV., CH. II., S. 13.] brother's SON. 431
Authorities.— (1) Mit. Yyav., f. 55, p. 2, 1. 8; (2) f. 58, p. 2, 1. 5 (see
Chap. II., sec. 11, Q. 4).
Eemarks. — Kegarding the loss of the widow's rights, see also Act. XV.,
1856, sec. 2.
2. According to the Vyav. May. a full sister inherits in preference to a half-
brother (r). Much more, therefore, in preference to remoter relatives (s).
SECTION 13.— BEOTHEE'S SON (t).
Q. 1. — A person died, and there is his brother's son as well as
a widow of another brother's son. Will the widow be the heir in
preference to the nephew?
^.— No.
Tanna, October 11th, 1847.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 2. — A man died. His surviving relatives are four nephews
and a wife of a nephew. The question is : Which of these is the
heir?
A. — The four nephews are heirs. The widow of a nephew can-
not be the heir of the deceased.
Ahmedahad, July ISth, 1857.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 140, 1. 1;
(3) p. 140, 1. 6; (4*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — In default of brothers, brothers' sons succeed, taking per
capita (v). They succeed directly as nephews, not by representation of their
fathers (w).
(r) Sakharam Sadashiv Adhikari v. Sitahai, I. L. E. 3 Bom. 353.
(s) Ibid. 368 (note), 369.
(t) See Introduction, p. 116, 117; below, sec. 14 I. B. 1 a, Q. 1, and
Nirnayasindhu III., p. 95, 1. 17, quoted in Book I., Chap. 14, I. B. b. 1, Q. 1.
Brothers' sons exclude a son's widow, 2 Macn. 75. They are amongst the
heirs specially enumerated. The Smriti Chandrika, Chap. XI., sec. 4,
para. 26, places the son of a half-brother next after a son of a full-brother.
Brother's sons exclude the widows of the deceased in a united family, Totava
et al. V. Irapa, K. A. No. 26 of 1869, decided 4th July, 1871. (Bom.
H. C. P. J. F. for 1871.)
(v) Brojo Kishoree Dossee v. Shreenath Base, 9 C. W. E. 463. See Q. 6.
{w) Brojo Mohun Thakoor v. Gouree Pershad et al., 15 C. W. E. 70.
432 HINDU LAW. [BOOK I.
Q. 3. — Who will be the heir to a deceased person, a brother's
son or a brother's daughter?
A. — The brother's daughter cannot be the heir.
Dharwar, 1845.
Authority.— *Mit. Vyav., f. 55, 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — Nandapandita and Balambhatta give equal shares to the brother's
daughters. See Stokes's H. L. B. 445. See infra, Dig. Vyav., Chap. II.,.
sec. 15, B. II. (2).
Q. 4. — A man died, leaving neither wife nor children. He has-
left two relatives — namely, a sister-in-law and a nephew. Which
of these is the heir of the deceased ? The sister-in-law has sold a
house of the deceased without the consent of her son. Is this a
legal sale?
A. — When a man dies without male issue his widow becomes
his heir. When there is no widow his daughter, and in her
absence, her son, is the rightful heir. In the absence of a
daughter's son, the parents, and in their absence the uterine
brothers, and in their absence, the nephews, are th eheirs. This
is th© rule of succession laid down in the Sastra. According to it
a sister-in-law cannot be the heir while there is a nephew alive.
The sale effected by the widow without her son's consent cannot
be considered legal.
Ahmedahad, January 31st, 1852.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 5. — A man died. His surviving relatives are a nephew and
a son of another nephew. Which of these is his heir?
A. — The nephew is the heir. The son of a nephew cannot be
considered the heir while a nephew is alive.
Ahmednuggur, July Sth, 1856.
Authorities. — (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).
VYAV., CH. II., S. 13.] brother's SON. 433
Q. 6. — If a deceased person has left a sister and some nephews,
which of them will be his heir?
A. — If the deceased and his nephews were undivided in
interest the nephews will be his heirs ; but if they were separated
the sister will be his heir.
Ahmednuggur, December 31st, 1846.
Authority. — *Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks. — The nephews (brother's sons) are the heirs in every case. They
take per stirpes according to the Subodhini, but this is met by Balambhatta
with the argument that, as a brother has not a vested interest like a son, he
cannot transmit it, and therefore the brothers' sons take per capita. (See
1 Macn. 27.) The discussion brings out the difference between the successive
possibilities of ownership, each excluded by the preceding one, in" obstructed "
as compared with the successive outgrowths of actual co-ownership in unob-
structed " daya," (= participation) commonly rendered " inheritance." See
above, pp. 57, 60, 63.
2. Where there is no reunion, all co-sharers participate according to their
relationship in the lapsed share of a deceased co-sharer in each of the several
parts of the original estate in which his share was settled by agreement so as
to constitute a partition (x).
Q. 7. — A man separated from the rest of the members of his
family. Afterwards he died. His sisters claim the right of
inheritance. The grandmother and the nephew of the deceased
have objected to their claim. The question is : Which of these
three relatives is the heir of the deceased?
A. — If the deceased was a separate member of his family, and
if he had no son, his nephew is his heir. When there is no
nephew, the mother of the deceased's father, and in her absence
his sisters, are his heirs.
Surat, October 11th, 1845.
Authorities.— (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) Manu IX. 217 :
"The mother also being dead, the paternal grandfather and grandmother
take the heritage on failure of brothers and nephews."
(x) Amrit Rav Vinayak v. Ahaji Haihat, Bom. H. C. P. J. F. for 1878,
p. 293.
H.L. 28
434 HINDU LAW. [BOOK 1
Q. 8. — Who will be the heir of a deceased person, his kept
woman or his brother's son?
A. — The nephew is the heir, but the kept woman will be
entitled to a maintenance.
Dharwar, 1846.
Authorities. — (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 57, p. 1, 1. 6 (see Chap. II., sec. 3, Q. 3).
Remark. — See Vrindavandas v. Yemunahai (y).
Q. 9. — There were two brothers, Uderam and Huma. The
latter had kept a woman, by whom he had a son. After his
death Uderam protected the son and got him married. The
woman and Uderam died. Can the illegitimate son of Huma be
the heir of the deceased Uderam?
A. — He may be considered the heir if, according to the custom
of the Marwadis, there is no objection to his succession ; but if it
is contrary to the custom he will be entitled to whatever he may
have received from his uncle as a mark of his affection, and if
the son is a minor, the Sirkar should make a provision or his
protection till he attains to the proper age, and the rest of the
property may be taken by Government.
Ahmednuggur, March &th, 1847.
Authority. — Vyav. May., p. 7, 1. 1 :
" Thus Brihaspati says : ' Let all rules of each country, caste and family
that have been divided and preserved from ancient times be still observed
in the same way, otherwise the subjects will rise in rebellion.' " (Borradaile,
p. 7 ; Stokes's H. L. B. 15. Comp. also Manu VIII. 41.)
Q. 10. — A village was granted on hereditary Inam tenure to a
younger brother. The grantee subsequently died without issue,
but there are sons of his brother. Can the Sanad, declaring the
grant to be ** Vamsaparampara, " be construed to extend the
benefit of the grant to the nephews of the grantee ?
A. — The grantee was a Brahman. By reason of the grant he
became proprietor of the village. After his death the surviving
members of his family have a right to his property. A king is
prohibited from taking any property of a Brahman, even though
he may have at his death left it without an heir. If the deceased
(y) 12 Bom. H. C. E. 229.
VYAV., CH. II., S. 14 I. A. 1] GOTRAJA — FULL- SISTER. 435
has left no other heir than his nephews, they will be his heirs
entitled to the village.
Sadr Adalat., September 8th, 1837.
Authorities. — (1*) Ainarakosa, Book II., Chap. 7, 1 : Amarasimha here
enumerates vamsa amongst the words for Hneage. See also Wilson's Sanskrit
Dictionary.
(2*) Viramitrodaya, f. 204, p. 1, 1. 1 : " A son and a daughter both continue
the race of the father."
Eemarks. — 1. By the term " Vamsa-parampara " are understood " male "
and "female" descendants in the direct line, but never brothers or brothers'
sons. Consequently the nephews, in the case stated, have no title to the
property.
See above, section 6a, Q. 8, for the case of a widow succeeding to separate
property, such as an inam would generally be. See also Book II., Introd.
2. A grant to a man and his heirs does not constitute an estate inalienable (z).
^SECTION 14.— I. (a) GOTEAJA SAPINDAS.
A. — Heirs Mentioned in the Mitakshara and Vyavahara
Mayukha.
1. ^.—FULL-SISTER (h).
Q. 1. — A man died. He possessed certain property acquired
by himself and his ancestors. The question is whether the sister
or the sister-in-law of the deceased is the heir?
A. — The sister, and not the sister-in-law, is the heir.
Surdt, August 15th, 1858.
(z) Krishna Rao Ganesh v. Rang Rao et al., 4 Bom. H. C. E. 1 A. C. J.;
Bahirji Tannerji v. Oodatsing et al., R. A. No. 47 of 1871 (Bom. H. C. P. J. F.
1872, No. 33). As to grants, see Book II., Introd. 5 A. 2.
(a) For references to the Introductory Eemarks to this section in the earlier
■editions, see above, p. 107 ss.
(b) The Smriti Chandrika, Chap. XII., para. 35, admits the sister as
successor to a reunited parcener on failure of children, wife, and father,
though it excludes her as heir to a divided brother. Chap. XI., sec. 5. See
Icharam v. Permanund, 2 Borr. E. 515. A sister succeeds to a brother, after
the latter 's widow has entered into a Natra marriage with another, under
Act XV. of 1856, in the absence of custom excluding her from succeeding to
Bhagadari Vatan, BJiaiji Girdhur et al. v. Bai Khusal, S. A. No. 334 of 1872,
Bom. H. C. P. J. F. for 1873, No. 63. See the next section. Biru valad
Sadu V. Khandu valad Mari, 1. L. E. 4 Bom. 214.
Under the earlier Eoman law a whole group of agnates standing equally
near to the deceased succeeded together without distinction of sex. The
females being always dependent, no inconvenience arose from their joint
436 HINDU LAW. [BOOK I.
Authorities. — (1) Vyav. May., p. 140, 1. 1 :
' ' In default of her (the grandmother) comes the sister ; under this text of
Manu : To the nearest Sapinda (male or female) after him in the third degree
the inheritance belongs" (c). (Borradaile, p. 106; Stokes's H. L. B. 89.)
(2) Mit. Vyav., f. 69, p. 1, 1. 16; (3) f. 45, p. 1, 1. 5 ; (4) f. 55, p. 2, 1. 1
(see Chap I., sec. 2, Q. 4).
Remarks. — 1. Hindu sisters inherit equally from their deceased brother ; the
unendowed has not a preference over the one provided for, as in the case of
daughters inheriting from a mother (d).
2. The sister (by adoption) of an adopted son succeeds before other kins-
men (deceased's uncle's widow) (e). A sister succeeds before remote kinsmen
(males) (/).
A full sister is preferred to a paternal first cousin (g).
In the case of Sakharam v. Sitabai (h) one of two separated half-brothers
having died was succeeded by his mother. On her death a contest as to
inheritance arose between her daughter and her stepson, which was disposed
of in favour of the former. The judgment places her precedence (i) on the
succession to reunited brethren which is referred to in Vyav. May., Chap. IV.,
sec. IX., p. 25, and Vinayak Anandrav v. Lakshmihai is relied on as having,
not only on the authority of the Mayukha but also on Nanda Pandita's and
Nilakantha's interpretations of the Mitakshara (making brethren include
sisters) settled the law for the Bombay Presidency generally. Any divergence
from the rule must, it is said, be supported by "an ancient and invariable
usage to the contrary . . . alleged and proved by him who uses it." The
case was dealt with entirely on a consideration of who was heir to the pre-
deceased son, not of who was heir to his mother. The mother, Mathurabai,
it is laid down, " on succeeding on the death of her son Nana to his moiety
of the immovable property, took only such a limited estate in it as a Hindu
widow takes in the immovable property of her husband dying without leaving
male issue."
There can be no doubt as to the sister's succession before the half-brother
according to the Mayukha and to Nanda Pandita's and Balambhatta's con-
ownership. When the Lex Voconia afterwards prohibited legacies to females
they began to be thought unfit members of the heritable group of agnates, but
an exception was maintained in favour of full sisters. It would seem that an
analogous exception in favour of full sisters, in virtue of their consanguinity,
may, at one stage of progress and in some provinces, have prevailed under the
Hindu law. Str. H. L. ; see Q. 4, Rem.
(c) See p. 130 for Balambhatta's doctrine. The poverty qualification does
not give a preferential claim amongst sisters as it does amongst daughters.
See Bhagirthihai v. Baya, I. L. R. 5 Bom. at p. 268.
(d) Bhagirthihai v. Baya, 1. L. R. 5 Bom. 264.
(e) Mahantapa v. Nilangowa, B. H. C. P. J. F. for 1870, p. 390.
(/) Dhondu v. Ganga, I. L. R. 3 Bom. 369.
ig) Lakshmihai v. Dada Nanaji, I. L. R. 4 Bom. 210.
(h) S. A. 34 of 1875, in which judgment was delivered on 3rd March, 1879
(P. J. 335 of 1879) ; S. C. I. L. R. 3 Bom. 353.
(t) Vyav. May., Chap. IV., sec. 8, p. 16, 20 (supported by a passage of
Brihaspati, cited Col. Dig., Book 5, T. 407).
VYAV., CH. II., S. 14 I. A. 1] GOTRAJA FULL-SISTER.
437
struction of the Mitakshara. But the same authorities give the deceased son's
estate to his mother, so that for the further succession we should, according
to them, seek her heirs, not the son's heirs (k). The sister of the deceased
Nana was entitled to the property, according to the native authorities, in
succession to her mother, not to her brother. With the cases relied on of
Narsappa v. Sakharam and Bachiraja v. Venkatapadda should be compared
those cited in Vijiyarangam's Case.
3. The property inherited by a sister from her brother is Stridhana, passing
on her death, in the first place, to her daughters (l).
Q. 2. — A man died. He had no wife or children, and there is
no member of his family except a sister. She has two daughters ;
one of them is a widow and the other is a married woman and has
a male child. The question is whether the son should be con-
sidered the heir of his mother's maternal uncle in preference to
the claims of his mother and grandmother?
A. — In the absence of a near relation a distant relation becomes
heir of a deceased person. The sister is a gotraja relation, and
must be preferred to all others mentioned in the question.
Ahmedabad, May 2Sth, 1847.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1); (2) p. 134, 1. 4 (see Auth. 3); (3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4).
(fc) See above, p. 312. The same view is taken by the Vivada Chint., by
Jagannatha, the author of Col. Dig., and in fact by all the authorities except
the Daya Bhaga and the works which have since adopted its forced construc-
tion of a single text applicable only to a widow succeeding to her husband's
property. According to both the Mit. and the Mayukha, property which a
woman acquires by inheritance is stridhana (above, pp. 137, 261-2, 284, 311),
heritable by her heirs. The " limited estate " which a widow takes from her
deceased husband may be identical in kind with that which a mother inherits
from her son, but the character of the estate must in each case now be deter-
mined by the decisions rather than by the doctrines of the principal native
authorities recognised in Bombay. See above, pp. 138, 317.
(l) Bhaskar Trimhak v. Mahadeo, 6 Bom. H. C. E. 1 0. C. J. ; Vinayak
Anandrao et al. v. Lakshmibai et al, 1 Bom. BE. C. K. 117, and 9 M. I. A.
616.
438
HINDU LAW.
[BOOK I.
Q. 3. — A man had two wives. The elder of them had a
daughter. The daughter had three sons. The second, or the
younger wife, had a son and two daughters. One of the last-
mentioned daughters died when her mother was alive. She has
left a son. The second, or the younger wife, and her son died.
Her surviving daughter has applied for a certificate of heirship of
the deceased mother and brother. The deceased daughter's son
and the sons of the daughter of the elder wife have brought
forward objections to their claim. It must be observed that the
uterine brother and sister of the applicant died when their mother
was alive, and that the elder wife and her daughter died when the
younger wife was alive. The question is : Which of the survivors
is the heir of the deceased younger wife ?
A. — When a man dies his widow, daughter, and other near
relations become his heirs; and in the absence of these the
uterine sister; and failing her and her son the daughter is the heir
of the deceased younger wife. In the absence of the daughter
the daughter's son will inherit the property of his maternal grand-
mother. The applicant (m) is therefore the heir of the two
deceased persons.
Surat, September 28th, 1857.
AuTHOEiTiES.— (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2) p. 138, 1. 4; (3) p. 137, 1. 6; (4) p. 137, 1. 8; (5) Mit. Vyav., f. 48,
p. 1, 1. 14 :
(w) The following genealogical table will illustrate the answer :
A man.
I Died.
The elder wife.
Died.
Daughter.
Died.
Son.
Son.
Objector.
Son.
Died.
Son.
The younger wife.
Died.
Daughter.
Died
the
of the
Son.
Objector.
Daughter.
during Applicant.
lifetime
mother.
VYAV., CH. II., S. 14 I. A. 1] GOTRAJA — PULL- SISTER. 439
"The daughters share the residue of their mother's property after payment
of her debts." (Colebrooke, Mit., p. 266; Stokes's H. L. B. 383.)
A uterine brother,
A half-brother and
A brother's son,
Q. 4. — A man died. He has left neither a wife nor children.
His sister and her son claim to be his heirs. The question is:
Which of them should be considered the heir?
A. — If there are none of the man's following relations, viz. :
A son, A daughter's son,
A wife, The mother,
A daughter. The father,
a gotraja relation becomes heir; and among the gotraja relations
the father's mother is to be preferred to all others. The next
gotraja and heir is the sister, and then the sister's son.
Ahmedabad, April 20th, 1847.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 140, 1. 1
(see Chap. II., sec. 14 I. A. 1, Q. 1); (3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4).
Remarks. — In the case of Sakharam v. Sitaram (n) it was held that a full-
sister succeeds before a half-brother, both according to the Vyav. Mayukha
(Chap. IV., sec. VIII., paras. 16-20) and according to the Mitakshara
(Chap. II., sec. IV., paras. 1, 6, and notes) construed according to Nanda
Pandita and Balambhatta so as to make " brothers " include sisters (o). It is
strange that the Mitakshara, if it intended "brothers" to include "sisters,"
did not say so; but, amongst reunited brethren at any rate, it is clear from
Mit., Chap. II., sec. IX., paras. 12, 13, that Vijnanesvara recognised full-
sisters as having a right with full-brothers preferable to that of half-brothers
as heirs to a deceased member.
Regarding the sister's son, see Introductory Note to Chap. II., sec. 15, CI. 4.
Q. 5. — Who is entitled to inherit from a deceased person, his
sister or the sister's son?
A. — If there is a sister she succeeds first; a sister's son does
so after her.
Ahmednuggur, November 1st, 1847.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
(n) I. L. R. 3 Bom. 353.
(o) See Thakoorain Sahiha v. Mohun Loll, 11 M. I. A., at p. 402.
440 HINDU LAW. [BOOK I.
Q. 1); (2) p. 134, 1. 4 (see Auth. 6); (3) p. 141, 1. 7; (4) p. 181, 1. 5; (5)
p. 142, 1. 8; (6*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Kemark. — See above, pp. 107, 124.
Q. 6. — A deceased man leaves a sister who has two sons. Who
will be the heir?
A. — If a nearer relation cannot be found a sister will be the
heir, and in the absence of a sister her sons will be the heirs.
Ahmednuggur, January 6th, 1846.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Q. 7. — A woman's husband died and she married another man.
On his death she lived with her son by her first husband, and
they both acquired property. The son afterwards died without
issue. His sister hves with her husband in his house. Is the
sister or the mother the heir of the deceased?
A. — The mother does not belong to the family of her first hus-
band. The sister alone is the heir of the deceased.
Sholapoor, August 21t]i, 1846.
Authority. — *Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — The mother would lose her right to inherit from her first husband,
but not, according to the cases, from the son (p) under Act XV., 1856, sec. 2.
(See sec. 9, Q. 9.)
I. A. 2.— HALF-SISTER.
Q' 1. — Is a stepmother or a half-sister the heir of a deceased
man
A. — The right of a full-mother is recognised by the Sastra, but
that of a stepmother is nowhere defined. The right of a brother
is likewise recognised by the Sastra, and it is stated that on
failure of a brother a half-brother has the right of inheritance.
The right of a sister is also admitted by the Sastra, and, by
inference, a half-sister may be considered an heir. A half-sister
(p) See Okhorah Soot v. Bheden Barianee, 10 C. W. E. 35 C. E. ;
11 C. W. E. 82 C. E.
VYAV., CH. II., S. 14 I. A. 2] GOTRAJA HALF-SISTER. 441
is born in the gotra, and she will therefore have a better right
than the stepmother to inherit the deceased's property.
Sadr Adalat, June 10th, 1844.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1); (2) p. 142, 1. 6; (3) Nirnayasindhu III., f. 98, 1. 26.
Eemarks. — 1. The Sastri appears to have followed the Mayukha, which
places the sister immediately after the paternal grandmother ; at the same
time, he must have understood the term " bhagini " (" sister ") to include the
sister both of the full and of the half blood. This interpretation is from a
philological point of view admissible. According to the Mayukha 's interpreta-
tion of the term Gotraja as horn in the same family as the deceased (q) the
stepmother could not inherit before the half-sister, she being necessarily
descended from a different stock, but that Nilakantha does not confine Gotraja
to this sense is plain from his calling the grandmother the first of the gotrajas
in the order of succession. Custom, however, seems to have given to natural
birth in the family of the propositus precedence over the second birth by
marriage into the same family, though the latter also is a source of heritable
right See below, I. A. 4 Q. 9. In Kesserhai v. Valah Ravji (r) even a half-
sister is preferred to a stepmother and a paternal uncle's widow. In Trikam
Purshotham v. Natha Daji the half-sister excluded the paternal uncle of the
deceased (s).
The marginal note in Sreenarain Bai v. Bhya Jha (t) to the effect that in
Mithila a half-sister ranks as a sister goes much beyond the Vyavastha in the
text. All that the Sastri says is that if custom assigns the half-sister this
rank it will not be inadmissible according to the method of interpretation
adopted by the Mithila law writers. In this he refers inter alia to Vachaspati
in the Vivada Chintamani (Translation, p. 240), who construes the text of
Brihaspati (Col. Dig., Book V. T. 85) so as to make matarah include step-
mother. See below. Rem. 2. As between stepmother and half-sister this mode
of interpretation would give precedence to the former. The Vyav. Mayukha,
Chap. IV., sec. VIII., p. 16, 20, refuses recognition to half-blood except in
virtue of descent from a common ancestor, and except in the case of a sister
makes no provision for representation of a collateral line by a daughter. See
above, pp. 121, 122. The passages cited below, sec. 15, Book II. (2), Q, 1, are
those at Stokes's H. L. B. 86, pi. 10, and p. 89, pi. 19, which relate only to
the succession of a daughter to her father and of a sister to her brother.
Nilakantha assigns no place to the brother's daughter or to the grandfather's
daughter (paternal aunt). Her son is a Bandhu, infra, sec. 15, Book I., (1).
The Sastri, at sec. 14 I., B. h 2, Q. 3 infra, refers to the passages, Stokes's
H. L. B., p. 85, pi. 7, to Brihaspati, quoted ibid, p. 89, pi. 19, and ibid,
p. 93, pi. 5. See above, p. 326, Q. 4. Those passages do not support a
doctrine of female representation. If half-sisters are brought in by analogy
(q) See above, p. 122.
(r) I. L. R. 4 Bom. 188. Herein may be found a support for the doctrine
propounded by Sir M. Westropp, C.J., in Tulijaram's Case, above, p. 320.
is) I. L. R. 36 Bom. 120.
(t) 2 Cal. S. D. A. R. 28.
442 HIXDU LAW. [BOOK I.
that can only be a mode of interpretation which concurrently makes step-
mothers mothers, as in Vyav. Mayukha, Chap. IV., sec. 4, pi. 19. Still,
however, the half-sister is a gotraja-sapinda according to Vyav. May. 1,
Chap. IV., sec. VIII., p. 19, as said by the Sastri.
2. Eegarding the right of the stepmother to inherit (v), as recognised in
the case just discussed, Sir T. Strange, H. L. 144, states that " stepmothers,
where they exist , are excluded ' ' ; against this opinion it may be remarked
that Balambhatta asserts that they inherit immediately after mothers, as in
his opinion the term mata stands for janani, " genitrix," and sapatnamata
" noverca.'' Most likely his opinion is based on a verse attributed to
Manu (w), which declares that all the father's wives are mothers, as well as
on Manu IX. 183 : " If among all the wives of the same husband one bring
forth a male child, Manu has declared them all, by means of that son, to be
mothers of male issue";, but it is inadmissible, as the arguments brought
forward by Vijnanesvara in the discussion on the claims of the mother do not
apply to the stepmother, and this author consequently cannot have included
stepmother in the term ''mother '' (x). Nevertheless it is not probable that
either Vijnanesvara or Nilakantha intended to exclude stepmothers entirely
from inheriting. The high reverence which, according to Manu, is to be paid
to stepmothers, as well as the fact that stepsons inherit from their stepmothers,
may furnish an a priori argument that Hindu lawyers who admit women,
though not authorised by special texts, to inherit, would not object to the
stepmother's claims; and, in fact, if the interpretations of the terms
" Sapinda " and " Gotraja " given above at pp. 119, 122, hold good, then,
according to the doctrines of both the Mitakshara and the Mayukha, stepmothers
must be allowed to inherit. The Mayukha adopts the Mitakshara doctrine of
Sapinda relationship. See p. 112 above.
According to the Mitakshara a stepmother would be by her marriage a
" Gotraja " relation of her stepson, and for the same reason also a " Sapinda "
relation. Consequently she would take inheritance amongst the Gotraja-
Sapinda relations. According to the opinion of the learned Sastri who assisted
in the original compilation of this Digest, she ought to be placed, on account
of her near relationship to the deceased, immediately after the paternal grand-
mother, up to whom only the succession is settled by special texts.
(v) The grandmother takes before the stepmother, Macn. Cons. H. L. 64.
In Bengal the latter seems excluded. See 1 Cal. S. D. A. E. 37 {Bishenpirea
Munee v. Ranee Soogunda); 2 Macn. Prin. and Prec. 62; Lala Joti Lall v.
Musst. Durani Kower, Beng. L. E. 67, F. B. E., rules similarly under the
Mitakshara. In Madras a male gotraja sapinda, grandson of the great-grand-
father of the propositus, inherits before either his half-sister or his stepmother,
Kumaravelu v. Virana Goundan, I. L. E. 5 Mad. 29. Eeference is made to
Kutti Ammal v. Rada Kristna Ayyana, 8 M. H. C. E. 88, to show that even
a full-sister is postponed to a gotraja sapinda, which rank she has not,
according to the Smriti Chandrika, Chap. XI., sec. 5. See above, p. 120,
note (i). In Madras, as in Bengal, a stepmother is postponed to a paternal
grandmother, Muttamal v. Vengalakshmi Ammal, I. L. E. 5 Mad. 32. See
above, p. 106.
(w) Nirnayasindhu, III. Purvardha, f. 6, p. 1, 1. 12.
(x) See Mit., Chap. II., sees. 3, 32, 51; and Colebrooke's note to 1 Cal.
S. D. A. E. 37 (Bishenpirea Munee v. Ranee Soogunda).
VYAV., CH. II., S. 14 I. A. 3] PATERNAL UNCLE. 443
According to the Mayukha the stepmother would not be Gotraja in the sense
of horn in the same family as the stepson, but certainly a Sapinda relation.
The Vyavahara Mayukha, Chap. IV., sec. 4, p. 19, assigns to stepmothers and
step-grandmothers an equal share with mothers and grandmothers on partition
amongst their husbands' descendants. The passage of Vyasa on which this
rests, and a corresponding text of Brihaspati, are discussed in Colebrooke's
Digest, Book V., T. 84, 85, Comm. The limitations proposed by Jimutavahana
and Eaghunandana are there rejected, and the declaration of Brihaspati that
janani and matarah are entitled to equal shares is taken as showing that
matarah means stepmothers. The Daya Krama Sangraha also (Chap. VIII.,
pi. 7, 8) refers the rights of the stepmother, admitted by the Mithila School,
to a similar interpretation. If Nilakantha can be supposed, in accepting its
consequence, to have adopted this construction of the texts, his doctrine would
not differ materially from that of the Mitakshara as above stated (y). The
alternative seems to be that in omitting stepmothers from the Gotrajas whose
claims he discusses he intends to exclude them. According to this view they
would rank only as Sapindas, and consequently inherit like other Sapindas,
sprung from a different family after the Bandhus (see sec. 15). The step-
mother's right of maintenance, it was said, is not that of a parent such as
can be dealt with by an order under sec. 10 of Act. XX. of 1864 (z).
In the Vyav. May., Chap. IV., sec. 4, p. 19, it is said that the stepmother
is entitled to a share on partition. This is the rule of the Benares School,
though the Viramitrodaya contends (TransL, p. 79) that mother, being used
as strictly correlative to " sons," the sons dividing, the stepmother cannot,
under the text of Yajnavalkya, take a " like " share, but is entitled only to a
maintenance, and the Sastris, at 2 Macn. 63, say that " mata " ( = mother)
in the Mitakshara, &c., includes stepmother, whose right to a share the
Viramitrodaya (Tr., p. 79) admits to be recognised, though erroneously, by
the Mit., Chap. I., sec. 7, para. 1, on a partition by sons after their father's
death. But the position and the right of stepmothers to inherit at all are
questioned by Macn. 2 H. L. 64, note.
I. A. 3.— THE PATERNAL UNCLE.
Q. 1. — A man died. His uncle is absent in a distant native
State. The aunt has apphed for a certificate of heirship. Should
it be granted to her?
(y) In answer to Q. No. 1832 MSS, the Sastri at Ahmedabad said that step-
sons were bound to support their stepmother in virtue of Manu's text com-
manding children to maintain aged parents. See also next section, Q. 2.
A stepson succeeds to the Stridhana of his stepmother, Teencowree Chatterjee
V. Dinanath Banerjee et al., 3 Cal. W. K. 49. A stepmother's heritable right
is recognised in the answer to Q. 3 in Chap. TV. B, sec. 6 II b. The first
and last of these cases being from Ahmedabad seem to show how the law is
understood in Gujarath.
(z) Lakshmihai v. Vislivanath Narayan, S. A. No. 352 of 1875 (Bom.
H. C. P. J. F. for 1876, p. 23).
444 HINDU LAW. [BOOK I.
A. — The aunt has no right to be the heir of the deceased,
because her husband is ahve.
Poona, June SOth, 1855.
Authorities. — (1) Vyav. May., f. 134, 1. 4 (see Authority 3); (2) p. 140, 1. 1
(see Chap. II., sec. 14, I. A. 1, Q. 1); (3*) Mit. Vyav., f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4); (4*) f. 68, p. 2, 1. 13 :
" On failure of the paternal grandmother the (Gotraja) kinsmen sprung from
the same family with the deceased, and (Sapinda) connected by funeral obla-
tions— namely, the paternal grandfather and the rest — inherit the estate. For
kinsmen sprung from a different family, but connected by funeral oblations,
are indicated by the term cognate (Bandhu). Here, on failure of the father's
descendants, the heirs are successively the paternal grandmother, the paternal
grandfather, the uncles, and their sons. On failure of the paternal grand-
father's line, the paternal great-grandmother, the paternal great-grandfather,
his sons and their issue inherit. In this manner must be understood the
succession of kindred belonging to the same general family and connected bv
funeral oblations" (a). Colebrooke, Mit., p. 350; Stokes's H. L. B. 446-7).
Q. 2. — The paternal uncle of a deceased person claims his pro-
perty. The deceased's wife wishes to marry another husband,
and has consequently no objection to the uncle's application.
The deceased's father has left a Pat- wife who stands in the rela-
tion of a stepmother to the deceased. Who will be the heir?
A. — So much of the property of the deceased as will suffice for
the maintenance of the mother should be given to her, and the
rest to the applicant.
DJiarwar, August 30i,/i, 1846.
Authority.— *Mit. Vyav., f. 68, p. 2, 1. 13 (see Chap. II., sec. 14 I. A. 2,
Q. 1).
Eemarks. — 1. Eegarding the legalisation of Pat marriages, see Chap. 11. ,
sec. 6 B.
2. Eegarding the right of stepmothers to inherit, see Chap. II., sec. 14,
I. A. 2, Q. 1; above, p. 441.
I. A. 4.--FATHEE'S BEOTHEE'S SON.
Q. 1. — Will a Brahman's illegitimate son or his cousin, who
has declared himself separate, be his heir?
(a) According to the Sanscrit text the words " to the seventh degree " ought
to be added. As to the translation, see Lulloobhoy v. Cassibai, L. E. 7 I. A.,
at p. 236; above, p. 3 (k).
VYAV., CH. II., S. 14 I. A. 4] father's BROTHER'S SON. 445
A. — The cousin is the legal heir. The illegitimate son will be
entitled to whatever he may have received from his father as a
mark of affection or as a reward for service.
Ahmednuggur, February 21th, 1847.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2) f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1); (3*) f. 68, p. 2, 1. 13 (see
Chap. II., sec. 14, I. A. 3, Q. 1); (4) Vyav. May., p. 98, 1. 6; (6) p. 236,
1. 6; (6) Manu IX. 155 (6).
Q. 2. — Who will be the heir of a deceased Sudra, his father's
brother's son or his sister's son?
A. — The right of the sister's son will be superior to that of the
cousin.
Tanna, April 21th, 1850.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 140, 1. 1;
(3*) Mit. Vyav., f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1); (4*)
f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Remark. — The father's brother's son inherits, since he is a Gotraja Sapinda^
whilst the sister's son is only a Sapinda. The Sastri has taken " brothers and
their sons," in Vyav. May., Chap. IV., sec. 8, pi. 1, as including " sisters and
their sons." See Balambhatta, cited above, p. 121.
Q. 3. — There were four cousins, who lived separate from each
other. One of them died leaving a widow, and another without
issue or widow. The question is : Who will be the heir of the
latter, whether the two cousins or they and the widow? If the
widow is not to be counted an heir, give reasons for her exclusion.
A. — The two cousins must be considered the heirs of the
deceased. The widow must be excluded, because she has no son.
Had her husband been alive at the time of the death of the
cousin he would have been counted an heir, and he, having
become an heir, in this way would have been able to transmit his
right to his widow.
Dharwar, April lOtJi, 1856.
Authorities. — (1) Vyav. May., p. 134, 1, 4 (see Auth. 4); (2) p. 130, 1. 6;
(3*) Mit. Vyav., f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1) ;
(4*) f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Remark.— Regarding the reason of the widow's exclusion, see above, p. 122.
(6) As to the grant to the illegitimate son, see above, pp. 264-256.
446 HINDU LAW. [BOOK I.
Q. 4. — A man died. There are sons of his maternal and
paternal uncles. Which of these is the heir of the deceased?
A. — So long as there is a son of the paternal uncle the son of
the maternal uncle cannot be his heir. The son of his paternal
uncle is his heir.
Broach, August list, 1848.
Authorities. — (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1).
Q. 5. — A deceased person has left a cousin, some daughters,
their sons, and a son of a cousin twice removed. The daughters
and their sons state that they have no objection to the cousin
realising the debt due to the deceased. Which of these relations
will be the legal heir of the deceased?
A. — If the daughters and their sons resign their claims to the
property, the cousin and the son of another cousin twice removed
will be the heirs.
Shola'poor, January 25th, 1856.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 4); (2) p. 138, 1. 4;
(3*) Mit. Vyav., f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1) ;
(4*) f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemark. — According to Authority 3, the cousin alone will be the heir, in
case the daughter and her sons refuse the inheritance.
Q. 6. — A man, who had already separated from his kinsman,
died. There are two cousins who have separated from the
deceased, the son of a separated cousin and the daughter of a
sister. The question is: Which of these is the heir?
A. — The order of heirs laid down in the Sastra does not men-
tion the daughter of a sister. The nearest kinsmen, therefore,
are the two cousins, and they are the heirs of the deceased.
Surat, November 24,th, 1855.
Authorities.— (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1); (3) Manu. IX. 187
(see Auth. 4); (4*) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1).
VYAV., CH. II., S. 14 I. A. 4] father's BROTHER'S SON. 447
Q. 7. — A Gujar died. There are his cousins and cousin's sons.
Which of these are his heirs?
A. — The rule for finding the proper heir is to take the one that
is the nearest among the Gotraja and Sapinda relatives. Accord-
ing to this rule the cousins appear to be the nearest in degree
(and heirs).
Khandesh, October l&th, 1855.
Authority.— *Mit. Vyav., f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3,
Q. 1).
Q. 8. — A man of the Brahman caste died. The surviving rela-
tives are a daughter of a daughter, a cousin who has separated,
and some second cousins. They have all applied for certificates
of heirship, to enable them to succeed to the Inam property of
the deceased. The question is : Which of them should be
recognised as heir ?
A. — If the deceased has left no vi^ife or son the cousin who has
separated will become his heir. The second cousins and the
granddaughter are not the heirs.
Tanna, December l&th, 1851.
Authorities. — (1) Mit. Vyav., f. 65, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4) ;
(2*) f. 58, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1).
Eemark. — A second cousin excludes a third (c).
Q. 9. — A Desai died. The right of inheritance is claimed by
the following persons :
(1) A sister's son whom the deceased has by his will constituted
his sole heir.
(2) Two widowed sisters-in-law of the deceased. They have
applied to have their right to heirship recognised, on the ground
that the deceased was the uterine brother of their husbands, and
that the deceased was not married.
(3) Four cousins and three of his father's cousins. They apply
for a certificate of heirship in regard to the Desai Watan, &c.
The question is : Which of these is the heir of the deceased ?
A. 1. — A man may give away his movable and immovable pro-
perty when it was acquired by his own industry, and when he is
(c) Mahabeer Persad et al. v. Ramsurun, 3 Agra S. D. A. E. 6 A. C.
448 HINDU LAW. [BOOK I.
not married. When a man possesses immovable property
acquired by his ancestors he cannot make a gift of it. The son
of the deceased Desai's sister cannot, therefore, be heir to the
whole of his property under the will made in his favour.
2. — The two sisters-in-law are ** Sagotra " (Gotraja) and
'* Sapinda " relatives of the deceased. Their husbands, when
they were alive, took their shares of the family property and
separated. The sisters-in-law, however, cannot be said to be
" Sapinda " relations in the fullest sense of the word, and conse-
quently they are not heirs.
3. — Of the four cousins and three sons of the father's paternal
uncles the three grand-uncles' sons are " Sapinda " and
"Gotraja " relations; but they are very distantly related to the
deceased. The cousins are "Sapinda" and "Gotraja," and
very nearly related to the deceased. The cousins are therefore
the legal heirs.
Ahmedabad, September 2Sth 1848.
AuTHOEiTiES. — (1*) Vyav. May., p. 133, 1. 2 :
" Narada states the duties of separated co-heirs : "When there are many
persons, sprung from one man, who have their (religious) duties (dharma)
apart and transactions (kriya) apart, and are separate in the materials of
work (karmaguna), if they be not accordant in affairs, should they give or sell
their own shares, they do all that as they please, for they are masters of their
own wealth." (Borradaile, p. 98; Stokes's H. L. B. 82.)
(2*) Mit. Vyav. f. 46, p. 2, 1. 13 fE :
" The following passage, ' Separated kinsmen, as those who are unseparated,.
are equal in respect of immovables, for one has not power over (the whole) (d)
to make a gift, sale or mortgage,' must be thus interpreted : * Among unsepa-
rated kinsmen the consent of all is indispensably requisite, because no one is
fully empowered to make an alienation, since the estate is in common; but
among separated kindred the consent of all tends to the facility of the trans-
action, by obviating any future doubt whether they be separate or united. It
is not required, on account of any want of sufficient power in the single owner,
and the transaction is consequently valid even without the consent of separated
kinsmen.'" (Colebrooke, Mit., p. 257; Stokes's H. L. B. 376).
Eemaeks. — 1. According to the two passages quoted, the deceased would
have been entitled to give away his immovable property during his lifetime.
It would seem, therefore, that there is no reason to alter the dispositions made
by him. See also 1 Str. H. L. 26, note (a), Book II., Chap. I., sec. 2,
Q. 8 (e).
2. Eeg'arding the Sastri's decision that the sister-in-law is not '* Sapinda in
the fullest sense of the word," see above, p. 121.
(d) Lit. "over them" — that is, "the immovables."
(e) Muttayan Chetti v. Sivagiri Zamindar, I. L. R. 3 Mad., at p. 378.
VYAV., CH. II., S. 14 I. A. 5] PATER. GRANDF's. BROTHER'S SON. 449
Q. 10. — There were two brothers who had no male issue. The
elder of them adopted a son. The younger died, and his widow,
having permission from her husband, adopted a son. She gave
one-half of the property of her husband to her adopted son, and
left the other half for charitable purposes. As her adopted son
was young, she appointed an agent to take care of the property.
Subsequently she and her adopted son died. The adopted son of
the elder brother has filed a suit for the recovery of the whole
property. The agent who represents the family from which the
adopted son was selected has raised objections. The question is :
Who should be considered entitled to the property?
A. — The portion set aside by the woman for charitable purposes
could not have been claimed even by the deceased adopted son.
It should therefore be applied to the intended purposes by the
agent, under the superintendence of the adopted son of the elder
brother. The portion allotted to the deceased adopted son of the
widow should be given to the adopted son of the elder brother.
Poona, January 2Srd, 1857.
Authorities. — (1*) Mit. Vyav. f. 58, p. 2, 1. 13 (see Chap. II., sec. 14,
I. A. 3, Q. 1) ; (2) Vyav. May., p. 127, 1. 6; (3) p. 198, 1. 2 :
Katyayana : " What a man has promised in health or sickness for a rehgious
purpose must be given, and if he die without giving it his son shall doubtless
be compelled to deliver it." (Borradaile, p. 169; Stokes's H. L. B. 136.)
Ebmark. — See above, sec. 2, Q. 3 and 4; Col. Dig., Book II., Chap. IV.,
sec. 2, T. 46, 46; Book V. T. Ill; above, pp. 203, 285-6.
I. A. 5.— PATEENAL GEANDFATHEE'S BEOTHEE'S SON.
Q. 1. — A man died. There are a daughter of his uterine sister
and a grand-uncle's son. Which of these is the heir of the
deceased?
A. — The grand-uncle's son being a " Sagotra " (Gotraja) rela-
tion, the daughter of the sister cannot be his heir.
Surat, April Srd, 1847.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 68, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1); (3) Vyav. May.,
p. 140, 1. 1 (see Auth. 4); (4*) Manu IX. 187 (see Chap. II., sec. 14,
I. B. h. 1, Q. 1).
H.L. 29
450 HINDU LAW. [BOOK I.
Q. 2. — Two men died. There is a grand-uncle's son and a son
of their father's sister. Which of these is the heir?
A. — The grand-uncle's son is the heir. The son of their father's
sister cannot be the heir.
Broach, July 23rd, 1849.
AuTHOKiTiES. — (1) Mit. Vyav., f. 66, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 68, p. 2, 1. 13 (see Chap. II., sec. 14, I. A. 3, Q. 1).
I. B. — Heirs not Mentioned in the Law Books.
a.— MALES.
1.— BKOTHER'S GRANDSON.
Q. 1. — A deceased man has left three sons of his first cousin.
Which of these is the heir?
A. — If any one of these cousin's sons was united in interests
with the deceased he will be the heir; but if all are separate, all
are equal heirs.
Dharwar, May 11th, 1853.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 56, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Remark. — See above, p. 110.
Q. 2. — Who will be the heir to a deceased man when there are
his brother's grandson and daughter's grandson?
A. — The brother's grandson is the heir.
Ahmednuggur, December ISth, 1847.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 66, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Ebmark. — See above, pp. 123, 126-8, and Introductory Eemarks to sec. 16,
clause 4; Brojo Kishore Mitter v. Radha Govind Dutt et al. (/).
(/) 3 B. L. R. 436 A. C. ; 12 C. W. R. 339.
VYAV., CH. II., S. 14l. B. b. 1] DAUGHTER-IN-LAW. 451
1. B. a. 2.— PATEENAL UNCLE'S GEANDSON.
Q. 1. — Can a man's paternal uncle's grandson be his heir after
his death?
A. — The deceased has left a sister and a son of a first cousin.
Of these the latter is his heir.
Dharwar, 1845.
Authority. — *Mit. Vyav. f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks. — 1. See above, p. 119; and Introductory Remarks to sec. 15,
clause 4.
2. Great-grandsons, through different sons of the same man, are Gotraja
Sapindas (g).
I. B. b.— FEMALES.
1.— DAUGHTEE-IN-LAW.
Q. 1. — The father of a widow's deceased husband died. He
had certain rights in land and other property. There is no male
member of the family who has any claim to the property. Can
the widowed daughter-in-law of the deceased claim the property ?
A. — There being no better heir than the daughter-in-law, and
she being the nearest relation of the deceased, she is the legal
heir.
Surat, December Wth, 1853.
Authorities. — (1) Manu IX. 187 :
" To the nearest Sapinda, male or female, after him in the third degree, the
inheritance next belongs; then, on failure of Sapindas and of their issue, the
Samanodaka or distant kinsman, shall be the heir ; or the spiritual preceptor,
or the pupil or the fellow- student of the deceased."
(2) Nirnayasindhu III., p. 95, 1. 17 :
It is stated in the Smriti Sangraha : " The son, the son's son, the son's
son's son, and the daughter's son, the wife (patni), the brother, the brother's
son, the father, the mother, and the daughter-in-law (h), the sister, the sister's
son, the Sapindas and Sodakas ; in default of the first-mentioned, the latter-
mentioned persons are said to present the funeral oblation."
Eemark. — 1. See above, pp. 122-3, and above Dig. Vyav., Chap. II., sec. 8,
Q. 2.
2. The second passage seems to be intended as an explanation of the term
" Sapinda," which the Sastri understood to mean " connected by giving
funeral oblations."
(g) Brojo Kishore Mitter v. Radha Gohind Dutt et al., supra,
(h) This is cited in the Sraddha Mayukha, referred to in Mayukha,
Chap. IV., sec. 8, p. 29.
452 HINDU LAW. [BOOK 1.
3. A daughter precedes a daughter-in-law (i). So does a separated brother,
being one of the enumerated heir (k). So does a brother's son (I); but the
widow and daughter-in-law were preferred in a claim advanced by divided
distant cousins (w). See Chap. II., sec. 1, Q. 10; Chap. IV. B., sec. 6, II. f.
A daughter-in-law was preferred in succesision to a widow as heir to a first
cousin (paternal uncle's son) of the deceased husband. The Court said " the
question is, which of these two is to be preferred as heir to Sarasvati's
(deceased widow's) husband?" (n).
I. B. h. 2.— BEOTHEE'S WIFE.
Q- 1. — In the case of a Brahman's death will his sister-in-law
or his sister's son be his heir?
A. — The sister-in-law is the heir (o).
Tanm, February 2Sth, 1852.
Authorities.— (1) Vyav. May., p. 140, 1. 1 (see Auth. 2); (2*) Manu IX. 187
(see Chap. II., sec. 14, I. B. h. 1, Q. 1).
Eemark.— See above, pp. 121, 122-3, and Chap. II., sec. 11, Q. 6.
Q. 2. — A man died. There are his sister-in-law and a male
cousin, who have separated from the deceased. Which of these
is the heir?
A. — The sister-in-law, though separate, is nearer, and the
preferable heir.
Khandesh, September 5th, 1847.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 2); (2*) Mit. Vyav.,
f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Remarks. — 1. See above, pp. 116-7 ss.
2. If the male " cousin " is a brother's son he inherits, according to
Authority 2 (comp. sec. 12), before the sister-in-law.
3. The Sastri puts the widow next to her husband erroneously in this par-
ticular case, on account of the express signification of brother's sons after
brothers. See above, pp. 119, 122-3.
(f) Musst. Murachee Koour v. Musst. Ootma Koour, Agra S. R. for 1864,
p. 171 ; 2 Macn. H. L. 43.
(k) Venkuppa v. Holyawa, S. A. No. 60 of 1873, Bom. H. C. P. J. F. for
1873, No. 101.
(Z) Wittul Ruglioonath v. Hurihayee, S. A. No. 41 of 1871, decided 12th
June, 1871, ibid. 1871.
(m) Baee Jetha v. Hurihhai, S. A. No. 304 of 1871, Bom. H. C. P. J. F.
for 1872, No. 38.
(n) Vithaldas Manickdas v. Jeshuhai, I. L. R. 4 Bom. 219.
(o) See Dig. Vyav., Chap. II., sec. 14, I. A. 1, Q. 4 to 6.
VYAV., CH. II., S. 14 I. B. h. 3] PATERNAL UNCLE's WIDOW. 453
Q. 3. — Three brothers lived as an undivided family. The eldest
of them died leaving a widow, afterwards the second and the
youngest died successively. The widow of the eldest has applied
for a certificate of heirship, A distant member of the family,
four or five times removed from the deceased, has objected to the
application. The question is, which of these relations is the heir?
A. — All the brothers died as members of an undivided family.
Each surviving brother, therefore, became heir of the pre-
deceased. The last surviving brother, therefore, was the heir of
the two who died before him. The widow of the eldest brother,
being the nearest heir to the deceased, is entitled to inherit the
property.
Surat, August 10th, 1853.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2) Manu IX. 187 (see Chap. II., sec. 14, I. B. h. 1, Q. 1).
Eemark. — See above, pp. 116-7 ss.
1. B. h. 3.— PATEENAL UNCLE'S WIDOW.
Q. 1. — A dumb son of a deceased man lived, with his property,
under the protection of his sister. He afterwards died, leaving
his sister and a paternal uncle's widow. Which of these is his
heir '?
A. — The aunt, though she may have separated herself from the
deceased, is his heir. If the aunt had no existence, the sister,
according to the rule laid down in the Mayukha, would have been
the heir, and in her absence other relatives would have succeeded
to the property.
Rutnagherry , February Ath, 1852.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) Vyav. May.,
p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1); (3*) Mit. Vyav., f. 55, p. 2,
1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks. — 1. See above, pp. 109, 116-7; and sec. 14, I. A. 1.
2. In the case of Upendra Mohan Tagore et al. v. Thanda Dasi et al (p)
it is said that the uncle's widow does not succeed, but this is not the law in
Bombay. See below, h 4.
(p) 3 B. L. E. 349 A. C. J.
454 HINDU LAW. [BOOK I.
Q. 2. — If there are a paternal uncle's wife and a maternal uncle
of a deceased person, which of them will be his heir?
A. — If the deceased has left no male issue his heir will be the
paternal uncle's wife, and not the maternal uncle.
Ahmednuggur, October IQth, 1846.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Ebmark. — See above, pp. 116-7, and Introductory Eemarks to next section.
Q. 3. — A man died, and there are his father's second cousin
and paternal aunt. Which of these wiU be his heir?
A. — If the father's second cousin had not separated from the
deceased he will be the heir; but if he had, the aunt will be the
heir.
Tanna, June 25th, 1852.
Authorities.— (1) Vyav. May., p. 136, 1. 4; (2) p. 144, 1. 8; (3) p. 140, 1. 1
(see Auth. 6); (4*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(5*) Mann IX. 187 (see Chap. II., sec. 14, I. B. h. 1, Q. 1).
Eemark.— See above, pp. 116-7.
1. B. b. 4.— PATEENAL UNCLE'S SON'S WIFE.
Q. 1. — A man died. Is his cousin's wife or her daughter-in-law
his heir?
A. — The cousin's wife, and not the daughter-in-law, is the heir.
Ahmednuggur, May 4t/i, 1854.
Authorities.— (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).
Eemarks. — See above, pp. 116-7.
2. The widow of a first cousin of the deceased on the father's side was held
to have become by her marriage a Gotraja Sapinda of her husband's cousin's
family, and to have a title to succeed to the estate of that cousin on his decease
in priority to male collateral Gotraja Sapindas, who were seventh in descent
from an ancestor common to them and to the deceased, who was sixth from
that common ancestor (q).
At Allahabad, on the other hand, it was held that according to the Mitak-
shara none but females expressly nam.ed can inherit, and that the widow of the
paternal uncle of a deceased Hindu, not being so named, is not entitled to
succeed to his estate in preference to the deceased's father's sister's two
(g) Lalluhhai v. Cassihai, I. L. E. 5 Bom. 110, S. C. L. E. 7 I A. 212.
VYAV., CH. II., S. 14 II.] WIDOW OF GENTILE TO FOURTH DEGREE. 455
sons (r). These, however, being but Bandhus, could not come in until the
Gotrajas were exhausted (s).
I. B. h. 5.— THE WIDOW OF A GENTILE WITHIN THE
FOUETH DEGEEE.
Q. 1. — A man died. A widow of his distant male cousin, four
times removed from the deceased, is alive, and the question is
whether she is his heir?
A. — If there is no nearer relation of the deceased the widow of
a cousin four times removed from the deceased may inherit from
him.
Surat, September 17th, 1845.
AuTHOEiTY.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks.— 1. See above, pp. 116-7.
2. The widow of a joint cousin succeeds in preference to descendants of a
long-severed branch (t). The Sastri said the widow's right was equally good
to joint and to separately- acquired property of her husband's cousin, but he
seems to have grounded his opinion partly, if not wholly, on the widow's
having lived in community with the cousin.
3. The widow of a collateral does not, it has been ruled, take an estate in
the property of her husband's Gotraja Sapinda which she can dispose of by
will after her death (v).
II. SAMANODAKAS.
(Gentiles within the Thirteenth Degree.)
Q. 1. — Should a deceased person have no near relation, can a
distant relation inherit his property, and what may be the degree
of distance?
A. — In the absence of a near relation, if it can be shown that
the party claiming to be the heir and the deceased are descendants
of the same ancestor, he will be the heir.
Ahmednuggur, December 24th, 1851.
(r) Gauri Sahai v. Rukko, I. L. E. 3 All. 45.
(s) See Mit., Chap. II., sec. 1, para. 2, and LalluhhaVs Case, supra.
(t) Musst. Bhuganee Daiee ei al. v. Gopaljee, Agra S. B. for 1862, Part I.,
p. 306.
(v) Bharmangavda v. Rudrapgavda, I. L. E. 4 Bom. 181. See above,
pp. 318-9 ss. See Tupper's Panj Cust. Law, Vol. II., p. 148, where a widow
of a collateral ending the line, or one of a group of brothers ending it, takes
the share that would have fallen to her husband had he been alive.
456 HINDU LAW. [BOOK I.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Chap. I., sec. 2, Q. 4);
(2) p. 140, 1. 1 and 6; (3*) Hit. Vyav., f. 68, p. 2, 1. 15 :
' If there be none such (Sapindas), the succession devolves on kindred con-
nected by libations of water, and they must be understood to reach seven
degrees beyond the kindred connected by funeral oblations of food, or else as
far as the limits of knowledge as to birth and name extend." (Colebrooke,
Mit., p. 351; Stokes's H. L. B. 448.)
Kemark. — See above, pp. 122-3.
Q. 2. — A Brahman, who held the Joshi and the Kulakarani
Watans, died. His surviving relations are distant eight or nine
removes. Can they inherit the Inam?
A. — Yes, they can.
Poona, August 29th, 1851.
Authority.— Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4).
Eemarks. — 1. See the preceding case, and Nursing Narain et al. v. Bhuttun
Lall et al. (w) ; Musst. Dig. Daye et al. v. Bhuttun Lall et al. (x).
2. A great-grandson of the fifth in ascent from propositus succeeds before his
father's sister's son (y).
3. In Thokoorain v. Mohanlal (z) it was held that a sister's son does not
inherit according to the Mitakshara. His position as a Bandhu had been
abandoned, and the decision only excluded him from the nearer Sapindas.
4. A male descendant in fifth degree from great-grandfather of propositus
succeeds before sister's son (a). The possibility of the latter's succession only
is questioned.
(w) C. W. E. for 1864, p. 194.
{x) new. E. 500.
iy) Thakoor Jeehnath Singh v. The Court of Wards, L. E, 2 I. A. 163,
(z) 11 M. I. A. 386.
(a) Kooer Goolahsingh et al. v. Rao Kurum Sing, 10 Beng. L. E.
1 P. C. ; S. C. 14 M. I. A. 176.
VYAV., CH. II., S. 15.]
BANDHUS.
457
SECTION 15.— BANDHUS— z.e., COGNATES (b).
Introductory Eemarks.
1. Under the heading Bandhu, " cognate kindred," the Mitak-
shara, Chap. II., sec. 6, clause 1, and the Mayukha, Chap. IV.,
sec. 8, p. 22, enumerate nine persons only — namely :
The man's own
cognates.
His father's
cognates.
His mother's
cognates.
-*3 ijs
1. The father's sister's sons.
2. The mother's sister's sons.
3. The 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 aunt's sons.
8. The mother's maternal aunt's sons.
9. The mother's maternal uncle's sons.
The enumeration may perhaps be intended to mark merely the
•extreme terms of the Sapinda relationship, the connection on one
side or both being established through a mother and extending
only to four steps between the persons regarded as Bandhus. It
.seems very likely that an extension was given to the terms seven
.and five as marking the gradation of Gotraja-Sapindaship and
Bandhuship corresponding to that devised by the Canon lawyers
on the basis of the Koman law. By this the degrees were counted
only upwards from the more remote of two collateral descendants
to the common stock which had previously been counted both up
and down to determine the nearness of relationship. It would
seem appropriate that when definite connection with names for
each grade must be traced on the father's side from the same
great-grandfather, it should on the mother's side be traced from
one point lower or from the same grandfather. This is confirmed
by the early laws of the other Aryan nations. But in the modern
law there is no doubt but that the four steps may be counted
upwards on either side to coincidence of origin. See above,
p. 235.
2. From this enumeration, and the fact that the word Bandhu
is frequently used to designate these nine relations exclusively.
(b) In Bengal the Bandhus come next after the nearer Sapindas — that is,
before descendants from ascendants beyond the great-grandfather, Roopchurn
Mohatpur v. Anundlal Khan, 2 C. S. D. A. E. 35; Deyanath Roy et al. v.
Muthoor Nath Ghose, 6 C. S. D. A. E. 27. But according to Inderjeet Singh
et al. V. Musst. Her Koonwar et al., Cal. S. D. A. E. for 1857, p. 637, Gotraja
Sapindas and Samanodakas are preferred to Bandhus.
458 HINDU LAW. [book I.
it might be inferred that the list was intended to be exhaustive,
and to preclude the wider interpretation of Bandhu in the sense
of " relation," or " distant relation " in general. Consequently
the other relations, as the maternal uncle, maternal grand-uncle,
&c., would be excluded from inheriting.
3. This inference, however, becomes very improbable if another
passage of the Mitakshara is taken into account, where Vijnanes-
vara apparently gives a different interpretation of the word
Bandhu (c). He says that the term "gentiles," Gotrajas, in-
cludes ' * the paternal grandmother, Sapindas (relations within the
sixth degree) and Samanodakas (relations within the thirteenth
degree)." Pursuing the same subject, he adds {ibid, in cl. 3),
*' on failure of the paternal grandmother the kinsmen sprung
from the same family as the deceased, and Sapindas (within the
sixth degree) . . . inherit the estate. For kinsmen within the
sixth degree (Sapindas), and sprung from a different family, are
indicated by the term Bandhu." So also the Vyavastha referred
to, though doubted by, the Privy Council in Thakoorain Sahiba v.
Mohun LaM (d). Hence it would seem that Vijnanesvara inter-
preted Ya jnavalkya 's term "Bandhu" as meaning "relations
within the sixth degree, who belong to a different family," or at
least that all such persons who come under the term " Sapinda,"
according to the definition given in the Acharakanda (see above,
p. 110), are included in the term " Bandhu." Consequently the
maternal uncle, the paternal aunt, &c., would also be entitled to
inherit as Bandhus. In the passage translated, Mit., Chap. II.,
sec. 12, p. 2, the word " Matribandhu " is explained as including
the maternal uncles, and Goldstucker (On the Deficiencies, &c.)
refers to Vijnanesvara 's Commentary on Yajn. III., p. 24, for
the same sense.
4. For the correctness of this wider interpretation a passage of
the Viramitrodaya may be adduced, where Mitramisra likewise
contends that other relations, " the maternal uncle and the rest,"
are comprised by the term Bandhu (e). For, says he, if maternal
uncle's sons were allowed to inherit and their fathers not, this
would be very improper, as nearer relations would be excluded to
(c) Col. Mit., Inh., Chap. II., sec. 5, Cl. 1; Stokes's H. L. B. 446.
(d) 11 M. I A. 386.
(e) The father's maternal uncle inherits, Gridhari Lall Roy v. The Bengal
Government, 12 M. I. A. 448.
VYAV., CH. II., S. 15.
BANDHUS.
459
the advantage of more distant kindred (/). A similar opinion was
given by the Sastris also in Musst. Umroot et al. v. Kulyandass
et al. (g). They state that the Bhinnogotra Sapindas, or blood
relations within seven degrees, not belonging to the deceased's
family, inherit. But this assertion is too wide and vague to be of
use, because Yajnavalkya I., 53 (h) says that, in the mother's line
the Sapinda relationship ceases with the fifth person (i). Conse-
quently a man's Sapindas in his mother's family cease with her
great-grandfather in the direct ascending line, and with her grand-
father's fifth descendant in the collateral line (k). This principle
must also be borne in mind in the case of descendants from
daughters of gotraja relations. Thus the deceased's great-great-
granddaughter's son would be no longer a Sapinda. The view
here taken has been adopted by the Privy Council in Gridhari
Lall V. The Government of Bengal (l). In the answers to the
questions of the following section the Sastris allow, besides the
so-called nine Bandhus, the following Bhinnogotra Sapindas to
(/) Viramitrodaya, f. 209, p. 21, 1. 6, Tr. p. 200. See also Macnaghten's
Principles and Precedents, Ed. H. H. Wilson, p. 37, note.
ig) 1 Borr. E. 323.
{h) See above, pp. 126-8.
(i) It is for this reason that the prohibition to marry a person of the same
kindred extending on the father's side to the seventh, extends on the mother's
side only to the fifth degree (Narada, Part II., Chap. XII., para. 7). So
Vyav. May. (as to an adopted son). Chap. IV., sec. 6, pi. 32.
(k) Table of a man's (A) Sapindas in his mother's family :
Mother's father.
il) 1 B. L. E. 44, P. C; S. C. 12 M. I. A. 448.
460 HINDU LAW. [BOOK i.
inherit — 1, sister's son; 2, maternal uncle; 3, brother's daughters ;
4, sister's daughters. They quote as authorities partly the pas-
sage of Yajnavalkya authorising the Bandhus to inherit, partly
the verse of Manu, which prescribes " that the nearest Sapinda
inherits," and for the maternal uncle the passage of the
Viramitrodaya above cited.
The passage cited in the Vyav. May., Chap. IV., sec. 10, p. 30
(Stokes's H. L. B. 106), is quoted in the Daya Bhaga, Chap. IV.,
sec. 3, p. 31 (Stokes's H. L. B. 257), and in Col. Dig.,
Book V. T. 513, to show the order of succession to woman's pro-
perty. The nearness of the relationship is by Jimuta Vahana
made a ground of succession through the benefits conferred by
the oblations offered by a sister's son, &c., and a passage of
Vriddha Satapa is quoted to prove the obligation to present these
oblations. In translating this Colebrooke has confined its import
to offerings for the wives of the maternal uncle, sister's son, &c. ;
but Goldstiicker, " On the Deficiencies, &c.," p. 11, says that the
duty is, according to the comment of the Dayaniraya, reciprocal
between the maternal uncle and his nephew, and that it is due
by a son-in-law, a pupil, a friend, and a daughter's son to their
several correlatives. As the maternal uncle thus performs a
Sraddha for his nephew, he is on this theory entitled to succeed
to his property, and before the cousin, more remotely beneficial
to the manes of the ancestors of the propositus.
5. Eegarding the order in which the Bhinnogotra Sapindas
succeed to each other, it is difficult to speak with certainty. It
would seem, however, that the "nine Bandhus" mentioned in
the law books ought to be placed first, if effect is to be given to
the principle of the Mayukha that " incidental persons are placed
last" (m). Amongst the other Sapindas "nearness to the
deceased ought, as the Sastris also seem to indicate, to be the
principle regulating the succession (n). In the case of Mohandas
(w) See Mayuka, p. 106, Borradaile ; Stokes's H. L. B. 88. So also the
Sastris in Musst. Umroot et al. v. Kulyandass et al., 1 Borr. Eep., p. 323.
(n) A sister's son was preferred to a maternal aunt's son, Gunesh Chunder
Ro7j V. Nilkomul Roy et al., 22 C. W. E. 264 C. K. The great-grandson,
through his mother, of an ancestor, common to a great-grandson by purely
male descent, is not in Madras heir to the latter, K. Kissen Lola v. Javallah
Prasad Lala, 3 M. H. C. E. 346. (See above, p. 451.) A paternal uncle's
daughter's son is an heir according to Bengal law. Guru Gohind Shaha Mandal
et al. V. Anand Lai Ghose et al., 5 Beng. L. E. 15 F. B. S. C, 13 C. W. E.
49 F. B., which apparently supersedes Raj Gohind Dey v. Rajessuee Dossee,
4 C. W. E. 10 C. E. The Sastris, at 1 Borr. 323 (Musst. Umroot et al. v.
VYAV., CH. II., S. 15 A. 1] BANDHUS FATHER'S SISTEr's SON. 461
V. Krishnabai (o) it was held that this latter principle must prevail
over the rule as to incidental persons even amongst the Bandhus,
and that a mother's sister's son was excluded by maternal uncles
of the propositus. Reference is made to Amrit Kumari Debi v.
Lakhinarayan (p), as well as to Gridhari Loll Roy's Case (q), and
it may probably be considered as now finally settled that the
mention of the Bandhus in the rule is not exhaustive, and does
not give to any one enumerated precedence over others nearer to
the propositus in the same line of connection. The following cases
have been arranged on the same principle as those regarding the
Gotrajas.
SECTION 15.— BANDHUS OE COGNATES.
A. — Mentioned in the Law Books.
1.— FATHER'S SISTER'S SON.
Q. 1. — A man died, and none of his relatives are alive except
his father's sister's son, who performed his funeral rites and
receives emoluments as priest from his clients. Is he the heir
of the deceased, and is he responsible for his debts ?
A. — If the deceased has no wife, his father's sister's son will
be his heir, and he, having received the emoluments belonging to
the deceased, is responsible for his debts,
Surat, January Slst, 1846.
Authority. — *Mit. Vyav., f. 59, p. 1, 1. 2 :
" On failure of gentiles the cognates are heirs. Cognates are of three kinds,,
related to the person himself, to his father, or to his mother, as is declared by
the following text :
Kulyandass et al.) say that descendants through the daughter of propositus to
the seventh degree are his asagotra sapindas. The grandson of a maternal
grandfather's brother is an heir by Bengal law, Brajakishor Mitter v. Radha
Gobind Dutt, 3 Beng. L. K. 435. A propositus being third in descent, a
collateral, fifth in descent from the common ancestor, inherits to him in
preference to his paternal aunt's son, T. Jihnath Sing v. The Court of Wards,
5 Beng. L. E. 443.
Two female links in the same line of descent are not recognised in any of
these cases. It is doubtful whether the right transmitted through a female
passes without being realised by actual succession more than one step further^
See below, B. II. (3).
(o) I. L. E. 5 Bom. 597.
(p) 2 Beng. L. E. 28.
(g) 12 M. I. A. 448.
462 HINDU LAW. [book I.
" The sons of his own father's sister, the sons of his own mother's sister,
and the sons of his own maternal uncle, must be considered as his own cognate
kindred." (Colebrooke, Mit., p. 352; Stokes's H. L. B. 448.)
Kbmark. — The Dayabhaga, Chap. XI., i&ec. 6, p. 9, says that the grandsons
through daughters of ascendants inherit through a connection with their
mother's gotra of birth by the oblations that they must offer to her father in
each instance. They thus stand in a manner on a par with grandsons through
sons. (See Smriti Chandrika, Chap, XI., S. 5, para. 15.)
A. 2.— MATEENAL UNCLE'S SON.
Q. 1. — Can a deceased male's mother's brother's son be his
heir?
^.— Yes.
Nuggur and Khandesh, 1845.
Authority not quoted. See the preceding case.
Q. 1. — A man died. There is a son of his maternal uncle. He
claims to be the heir of the deceased, and he is not opposed by
the near relations. Can he, under these circumstances, be
recognised as heir?
A. — If the maternal uncle's son is not opposed by any near
relation of the deceased, there is no objection to his claim on the
ground of the Hindu law.
Sural, January '25th, 1855.
Authority.— Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1, Q. 1).
B. — Not Expressly Mentioned in the Law Books.
I.— MALES.
(1)— SISTEE'S SON.
Q. 1. — Can a man's sister's son be his heir?
^.— Yes.
Tanna, October 5th, 1855.
Authority.— Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1, Q. 1).
Kemaeks. — 1. See Introductory Eemark to sec. 15, clause 4.
VYAV., CH. II., S. 15 B. I. (1)] BANDHUS — SISTER's SON. 463
2. According to the Mithila law and to that of Madras, a sister's son, it
was once held, does not inherit as a Bandhu (r). But a sister's son is a
Bandhu (s), and inherits in this character, though not as a gotraja sapinda (t).
The Nirnaya Sindhu, quoted above (sec. 14 I. B. h. 1, Q. 1), expressly names
a sister's son as heir (v), and gives to the sister's son a place amongst those
who may present funeral oblations, and this is adopted in the Sraddha
Mayukha, referred to in the Vyavahara Mayukha, Chap. IV., sec. 8, pi. 29.
3. Sister's sons have no right so long as a sister survives, but take before
sister's daughters (w).
4. In a Vyavastha of the Sastris of the Sadar Court, N. W. P., dated 28th
December, 1860, the sister's son, it is said, inherits before the paternal aunt's
son (x), and a sister's son was preferred to a maternal aunt's son. These cases
are opposed to the general principle that the persons actually specified take
before those only implied, unless the specification in this case be meant merely
to indicate the extreme points of heritable connection. See above, pp. 124, 461.
(r) Thakoorain Sahiba v. Mohun Lall, 11 M. I. A. 386; Doe Dem. Kullam-
mal V. Kuppu Pillai, 1 M. H. C. E. 85.
(s) See Prof. H. H. Wilson's works. Vol. V., p. 14; Introductory Remarks
to this section ; 2 Macn. Prin. and Prec. 84 ; Omrit Koomari Dahee v. Luchee
Narain Chuckerbutty , 10 C. W. R. 76 F. B. ; Amrita Kumari Debi v.
Lakhinarayan Chuckerbutty, 2 B. L. R. 29; Srinivas Ayangar v. Rengasami
Ayyangar, I. L. R. 2 Mad. 304, followed in Sadashiv v. Dinkar, Bom.
H. C. P. J. F. 1882, p. 17.
(t) Amrita Kumari Debi v. Lakhinarayan, 2 Beng. L. R. 28 F. B. ; Cheli-
kani Tirupati v. R. S. Venkata Gopala Narasimha, 6 M. H. C. R. 278;
Gridhari Lall Roy v. The Bengal Government, 12 M. I. A. 448.
(v) Amrita Kumari Debi v. Lakhinarayan, 2 Beng. L. R. 28 F. B.
{w) Icharam v. Purmanand, 2 Borr. 515. In Madras it has been ruled that
a sister is indeed in the line of heirs as being a bandhu, but that she is to be
postponed to a sister's son [Lakshman Ammal v. Tiruvengada, I. L. R.
6 Mad. 241; Kutti Ammal v. Radakristna Aiyan, 8 M. H. C. R. 88]. The
doctrine of sapinda relationship explained above, at p. 112 ss., and
adopted in Bengal as that of the Mitakshara [Umard Bahadur v. Udvi Chand,
I. L. R. 6. Cal. 119] is fully accepted by the learned judges, but combined
with that of a woman's losing her sagotraship by passing into another family.
Nilakantha, as we have seen, says this is not decisive, as the right of a sister
depends on an original consanguinity which cannot be lost. In Bombay, as
the Sastri's reference shows (though it is not pointed), the Mitakshara is not
thought to be opposed to the precedence of a sister over a sister's son, and the
preference which in a collateral line of gotraja sapindas may be claimed by a
son over his own mother or grandmother rests on his connection with the main
stem through his father, whose place he may be supposed to take in preference
to the widow. In the case of a male deriving his right only through his
mother, this reason for preferring him to her or to one standing on an equality
with her in relation to the propositus does not exist, the mother or her sister
stands one degree nearer to the propositus in the same line as the son. See
Mohandas v. Krishnabai, I. L. R. 5 Bom. 597.
(x) Gunesh Chunder Roy v. Nil Komul Roy et al., 22 C. W. R. 264.
i
464 HINDU LAW. [book I.
5. In Laroo v, Sheo (y) the property came to a deceased intestate, apparently
from his maternal uncle, and the Sadr Adalat decided that property inherited
through the female (maternal) heir must continue to descend in that line.
6. A fifth descendant from the grandfather takes precedence of the sister 's-
son {z)
Q. 2. — A man died. His property is in the possession of his
sister's son. There is, however, a half-sister's son besides the
sister's son. The question is : Which of these is the heir?
A. — The sister's son is the heir. The half-sister's son is not
the heir.
Surat, August 5th, 1845.
Authorities. — (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1).
Eemark.— See sec. 14, I. A. 2, Q. 1.
B. I. (2)— MATEENAL UNCLE.
Q. 1. — Can a maternal uncle be the heir of his nephew?
^.— Yes.
Tanna, February 12th, 1859.
Authority. — Viramitrodaya, f. 209, p. 2, 1. 6, Transl., p. 200:
" In the law-book of Manu the word Sakulya — (which is used in verse IX.
187) : On the failure of them (Sapindas) the Sakulyas are (heirs of a separated
male), or the teacher, or also a pupil — includes Sagotras (gentiles within the
sixth degree), Samanodakas (gentiles within the thirteenth degree), the
maternal uncles, and the other (Sapindas belonging to a different family), and
the three (classes of relations called) Bandhu. In the passage of Yogisvara
(Yajnavalkya, see Chap. II., sec. 2, Q. 2) also the word Bandhu indicates the
maternal uncle. Otherwise, if the maternal uncles were not included (by the
word Bandhu), a great impropriety would take place, since their sons would
be entitled to inherit, and they who are more nearly related (to the deceased)
than the former would not have the same right."
iy) 1 Borr. 80.
{z) Kooer Goolab Singh et al. v. Rao Kurun Sing, 10 Beng. L. E. 1.
VYAV., CH. II., S. 15 B. II. (2)] BANDHUS — BROTHER'S DAUGHTER. 465
Q. 2. — If a man applies for a certificate of heirship on the
ground that the deceased was his foster-son, should this appHca-
tion be granted?
A. — In the case to which this question refers it appears that
the deceased was applicant's sister's son. He should therefore
call the deceased not his foster-son but his nephew, and as the
maternal uncle of the deceased he should be granted a certificate.
Dharwar, November IQth, 1846.
Authority.— *Viramitrodaya, f. 209, p. 2, 1. 6. See the preceding case.
B. II.— FEMALES.
(1)— GEANDDAUGHTEE.
Q. 1. — Has a granddaughter the same right to the property of
her grandfather as a grandson ?
^.— No.
Tanna, September 15th, 1851.
Authority.— Mit. Vyav., f. 60, p. 1, 1. 7.
Kemarks. — 1. In an undivided family the granddaughter cannot inherit.
2. In a divided family she might inherit on failure of nearer heirs as a
" Sapinda relation belonging to a different family." See Introductory Eemark
to sec. 15, clause 5.
3. It has been ruled at Madras that a granddaughter's son is not entitled
to inherit to a second cousin, great-grandson in a male line of the same
ancestor (a), but this is not so in Bombay. See the Introductory Beraarks to
this section.
B. II. (2)— BEOTHEE'S DAUGHTEE.
Q. 1. — A man, who was not married, died. There are two
daughters of his brother. One of these daughters has a son. The
son's father is his guardian. He claims the possession of the
deceased's property. The daughters have no objection to the
claim of the son's father. The question is whether the son of a
daughter can be recognised as heir while there are two daughters
of the deceased, and whether the father of the son has right to be
his guardian ?
(a) K. Kissen Lola v. Javallah Prasad Lala, 3 M. H. C. B. 346.
H.L. 30
466 HINDU LAW. [BOOK I.
A. — The brother's two daughters are the nearest relations of
the deceased. They are therefore legal heirs, and while they are
alive the son of one of them cannot be considered an heir. It is
therefore unnecessary to discuss the question of the right of the
father to be the guardian of his son.
Ahmedahad, March 25th, 1855.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1); (2) p. 137, 1. 4.
Eemarks. — 1. See Introductory Note to sec. 15, clause 4.
2. In the case of Choorah Monee Bose et al. v. Prosonno Coomar Mitter (b),
it was held that a brother's daughter's son is not an heir, and so in Govindo
Hureehar v. Woomesh Chunder Roy (c). But the Sastris, in Umroot v.
Kulyandas (d), pronounce in favour of the niece's sons and even grandsons.
And a brother's daughter's son was recognised as an heir in Musst. Door g a
Bibee et al. v. Janaki Pershad (e). The brother's daughters were postponed
to a first cousin once removed (first cousin's son) in the male line, in
Gangaram v. Ballia et al. (/). Comp. Q. 2, p. 498.
B. II. (3)— SISTEE'S DAUGHTEE.
Q. 1. — A man died. There were three daughters of his sister.
Two are alive, and one died before the man's death, leaving a son.
The question is : Which of these is the heir ?
A. — The two surviving daughters of the sister are the heirs.
The son of the third daughter, who died before the man's death,
has no right to inherit from the deceased.
Ahmedabad, June 26th, 1855.
Authorities. — (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 140, 1. 1
(see Chap. II., sec. 14, I. A. 1, Q. 1); (3*) Mit. Vyav. f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4).
Kemark. — See Introductory Note to sec. 15, clause 4.
Q. 2. — Can a ** Bhachi," or a daughter of a sister, of a man of
the goldsmith caste be his heir?
^.— Yes.
Ahmednuggur, December 2&th, 1853.
(b) 1 C. W. K. 43.
(c) C. W. E. F. B. E. 176.
(d) 1 Borr. E. 314.
(e) 10 Beng. L. E. 341.
(/) S. A. No. 519 of 1873 (Bom. H. C. P. J. F. for 1876, p. 31).
VYAV., CH. II., S. 15 B. II. (3)] BANDHUS — SISTER's DAUGHTER. 467
Authorities.— (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) Vyav. May, p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1).
Eemarks. — 1. Grand-nephews through the mother of a deceased succeed to
him, Musst Umroot et al v. Kulyandas et al. (g). A sister's daughter's son
is, it is said, an heir according to the Mitakshara, and as such can question a
gift by the deceased's widow as invalid in law, Unaid Bahadur v. Udoi-
chand (h). This, however, seems questionable. " It is clear that a son of a
daughter of a father's brother is much further removed in the order of
succession than the son of a father's brother or a son of such a son " (i). Thus
the intervention of even one female link is a cause of postponement. Much
more where the heritable right is traced through a daughter and then again
through her daughter to a grandson or granddaughter. The sacrificial connec-
tion, which at least indicates heritable relation, is lost in the case of a maternal
grandmother's family. Only one female link is properly admitted between the
claimant and the stem, but it is not certain, as the case cited shows, that
the principle will be rigorously followed by the Courts.
2. A maternal grand-niece inheriting property takes it with the same power
of alienation as a daughter or sister (k).
3. The grandson of the maternal uncle of the mother of propositus is in the
line of heirs (Z).
4. A sister's grandson succeeds to property inherited from her father by a
woman in preference to her own daughter, under the Bengal law (w). The
Pandit relied on Vishnu's Dharmasastra (Transl., p. 68). A nephew's daughter
is not an heir, according to Bengal law (n).
ig) 1 Borr. 314.
(h) I. L. E. 6 Cal. 119.
(t) Pr. Co. in Rani Anand Kunwar v. The Court of Wards, I. L. E. 6 Cal.,
at p. 772.
(k) Tuljaram Morarji v. Mathuradas Dayaram, I. L. E. 5 Bom. 662.
(l) Ratnasuhhu Chetti v. Ponappa Chetti, I. L. E. 5 Mad. 69.
(m) Sheo Sehai Singh et al. v. Musst. Omed Konwur, 6 Cal. S. D. A. E. 301.
(n) Radha Pearee Dossee et al. v. .Doorga Monee Dossia et al., 5 Cal.
W. E. 131 C. E. See Lalluhhai v. Mankiwarhai, I. L. E. 2 Bom. 435, and
above, p. 456.
468 HINDU LAW. [BOOK I.
CHAPTEE III.
HEIRS TO MALES WHO HAVE ENTERED A RELIGIOUS
ORDER.
SECTION 1.— HEIES TO A YATI.
Q. 1. — Can the relatives of a '* Sannyasi " claim his property?
A. — No relative can claim any property acquired by a man
during the time he was ** Sannyasi."
Dharwar, 1846. i
Authority. — *Mit. Vyav., f. 59, p. 1, 1. 15 :
" A virtuous pupil takes the property of a yati or ascetic. The virtuous
pupil, again, is one assiduous in the study of theology, in retaining the holy
science, and in practising its ordinances." (Colebrooke, Mit., p, 356; Stokes's
H. L. B. 451.)
Q. 2. — How should property be divided among three disciples of
a deceased Guru ? And if some of them are absent, should their
shares be held in deposit or made over to those that are present?
A. — The Sastras do not provide for division of a Guru's property
among his disciples. One of them should therefore take it and
perform the funeral rites of the deceased, according to custom.
Ahmednuggur, September 2Qth, 1845.
Authorities not quoted. See the preceding question.
SECTION 2.— HEIES TO A NAISHTHIKA BEAHMACHAEI.
Q. 1. — Is an Acharya or Guru the heir of his disciple?
^.— Yes.
Sholapoor, October 21th, 1846.
Authority. — *Mit. Vyav., f. 59, p. 1, 1. 14 : —
" It has been declared that sons, grandsons (or great-grandsons) take the
heritage, or, on failure of them, the widow or other successors. The author
(Yajnavalkya) now propounds an exception to both those laws. The heirs of
VYAV., CH. III., S. 2.] HEIRS TO BRAHMACHARI. 469
a hermit, of an ascetic, and of a professed student are, in their order, the
preceptor, the virtuous pupil, and the spiritual brother and associate in holiness.
" The heirs to the property of a hermit, of an ascetic, and of a student in
theology are, in order (that is, in the inverse), the preceptor, a virtuous pupil,
and a spiritual brother belonging to the same hermitage.
" The student (Brahmacharin) must be a professed or perpetual one (Naish-
thika (o), for the mother and the rest of the natural heirs take the property
of a temporary student (Upakurvana) (p), and the preceptor is declared to be
heir to a professed student as an exception [to the claim of the mother and the
rest]." (Col. Mit. 354; Stokes's H. L. B. 450-1.)
Eemark, — Only if the deceased was a Naishthika Brahmachari — that is, a
student who had renounced the world and professed his intention to live all
his life with his preceptor.
Q. 2. — Can a preceptor (Guru) be the heir of his disciple
(Sishya)?
A. — As the parents of the disciple had devoted him to the
service of the Guru, and as he was not married, the Guru is his
heir.
Sholapoor, July 15th, 1846.
Authority not quoted. See the preceding Question.
(o) See Smriti Chandrika, Chap. XI., S. 7. Naishthika is derived from
nishtha, " fixed resolve," and means literally a person who has taken the fixed
resolution (to stay with his preceptor until death).
(p) " Upakurvana " means literally a person who pays or gives a present (to
the preceptor at the end of his studentship). \
470 HINDU LAW. [BOOK 1.
CHAPTEE IV.
HEIRS TO A FEMALE.
A. — Heirs to an Unmarried Female (q).
SECTION I.— BROTHEE.
Q. 1. — Can a brother inherit his sister's property?
A.— Yes.
Dharwar, 1846.
Authority. — *Mit. Vyav., f. 62, p. 1, 1. 7 :
" But her uterine brothers shall have the ornaments for the head and other
gifts which may have been presented to the maiden by the maternal grand-
father (or the paternal uncle) or other relations, as well as property which may
have been regularly inherited by her. For Baudhayana says : ' The wealth
of a deceased damsel let uterine brothers themselves take. On failure of them
it shall belong to the mother, or if she be dead to the father.' " (Col. Mit. 373;
Stokes's H. L. B. 465.)
Eemarks. — 1. The text of Vijnanesvara quoted refers in the first instance to
a maiden who died after her betrothal, but before her marriage. As Baudha-
yana's passage contains no such restriction, its rules seem to apply also to a
girl who died before her betrothal. So Narada quoted in the Daya Krama
Sangraha, Chap. II., sec. 1. (Stokes's H. L. B. 487.)
2. Regarding the case of a married sister, see Chap. IV. B., sec. 7, II. b.
^.—SECTION 2.— THE FATHEE.
Q. 1. — If a daughter has no relatives except her father, will he
be her heir?
A.— Yes.
Ahmednuggur, January 10th, 1846.
Authority not quoted.
Remarks. — 1. See the preceding case.
2. Regarding the father's succession to the estate of a married daughter, see
Chap. IV. B., sec. 7.
(q) The uncles and cousins of an unmarried damsel, daughter of their
deceased coparcener, exclude her from inheritance, but are bound to defray her
marriage expenses out of the joint estate (2 Macn. H. L. 47).
VYAV., CH. IV., B. S. 1.] DAUGHTER. 471
^.—SECTION 3.— THE SISTER.
Q' 1. — Can a sister of a deceased Murali be her heir?
^.— Yes.
Poona, September 23rd, 1852.
Authorities.— (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1); (2*) Manu IX. 187 (see Chap. II., sec. 14, I. B. h. 1, Q. 1).
Eemark. — The above text of Manu, declaring the " nearest Sapinda entitled
to inherit," applies in the first instance to the succession to a male's estate.
In the Mayukha, p. 159, 1. 5 (Stokes's H. L. B. 105), Nilakantha uses it in
regard to a female's estate also.
\
B. — Married.
SECTION 1.— DAUGHTER.
Q. 1. — A woman of the Kunabi caste died. Her daughter, who
was abandoned by her husband, hved with her mother for about
six years. Can this daughter be the heir of the deceased mother?
A. — As there are no other and better heirs the daughter will be
the heir of the deceased. If the daughter, however, is a
notoriously bad character the Sirkar should pay the expenses of
the funeral rites, assign a maintenance to the daughter, and hold
the rest in deposit pending a reform in her character.
Ahmednuggur, January 14t/i, 1847.
AuTHOEiTiES.— (1) Vyav. May., p. 142, 1. 2; (2) p. 137, 1. 5; (3) p. 156, 1. 5;
(4) p. 169, 1. 5; (6) p. 136, 1. 8; (6) p. 162, 1. 1; (7) Mit. Vyav., f. 45, p. 1,
1. 6; (8) f. 68, p. 1, 1. 7; (9) f. 58, p. 2, 1. 16; (10) f. 67, p. 1, 1. 5; (11*)
f. 60, p. 1, 1. 13; (12) f. 60, p. 2, 1. 2; (13) f. 60, p. 2, 1. 1; (14*) f. 48,
p. 1, 1. 13 :
" It has been declared that sons may divide the effects after the death of
their father and mother. The author states an exception in regard to the
mother's separate property : ' The daughters share the residue of their mother's
property after payment of her debts.' Let the daughters take their mother's
effects remaining over and above the debts — that is, the residue after the dis-
charge of the debts contracted by the mother. Hence the purport of the
preceding part of the text is that sons may divide their mother's effects, which
are equal to her debts or less than their amount. The meaning is this : A debt
incurred by the mother must be discharged by her sons, not by her daughters;
but her daughters shall take her property remaining above her debts." (Cole-
brooke, Mit., p. 266; Stokes's H. L. B. 383.)
(15) Mit. Vyav., f. 61, p. 1, 1. 16:
" In all forms of marriage, if the woman ' leave progeny ' — that is, if she
have issue, her property devolves on her daughters." (Colebrooke, Mit., p. 368;
Stokes's H. L. B. 461.)
472 HINDU LAW. [BOOK I.
Q. 2. — Who will be the heir of a deceased widow, her daughter
or her husband's illegitimate son?
A. — A daughter only is entitled to inherit her mother's Strid-
hana; an illegitimate son of the deceased widow's husband has no
right to it. If the parties concerned be of the Sudra caste, a
daughter and an illegitimate son will be entitled to equal shares
of their father's property. If the property is Stridhana a daughter
has a prior and superior right to it. The illegitimate son and the
daughter should therefore take equal shares of the property of the
deceased.
Ahmednuggur, January 31st, 1848.
AuTHOEiTiES.— (1) Vyav. May., p. 99, 1. 1; (2) p. 151, 1. 2; (3) p. 165, 1. 7;
(4) p. 156, 1. 5; (5) p. 157, 1. 7; (6) p. 159, 1. 5; (7*) Mit. Vyav., f. 48, p. 1,
1. 13 (see Chap. IV. B., sec. 1, Q. 1); (8) f. 56, p. 1, 1. 11 (see Chap. II.,
sec. 3, Q. 1).
Eemaek. — The Sastri in his last direction treats the property as that of the
predeceased husband, and applies to it the construction of Yajnavalkya's text
supported by Devanda Bhatta in the Dattaka Chandrika, sec. 5, pi. 31
(Stokes's H. L. B. 660).
Q. 3. — A woman died leaving a son by her first and a daughter
by her second husband. She had taken no property belonging to
her first husband. The deceased's property was left in possession
of her daughter and son-in-law. The question is whether the
daughter or the son should be considered the heir?
A. — If there is no proof that the property in question did not
belong to her first husband, the daughter alone is the heir.
Khandesh, March 4t/i, 1851.
Authorities. — (1) Vyav. May., p. 134, 1. 4; (2*) Mit. Vyav., f. 48, p. 1,
1. 13 (see Chap. IV. B., sec. 1, Q. 1).
Eemark. — The words " did not belong " are evidently a mistake for
" belonged."
Q. 4. — A woman died leaving a daughter and a son of a pre-
deceased daughter. Which of these wiU be heir of the deceased ?
A. — The grandson is a distant relation. The daughter should be
considered the heir of the deceased.
Khandesh, October 22nd, 1847.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2*) Mit. Vyav., f. 48, p. 1,
1.13 (see Chap IV., B., sec. 1, Q. 1).
VYAV., CH. IV., B. S. 1.] DAUGHTER. 473
Q. 5. — A woman died. She possessed some waste land. She
had had three daughters. The second is alive : the eldest died
leaving a son. The youngest died without issue, but her husband
is alive. The question is how the land should be divided among
the heirs?
A. — The land should be equally divided between the daughter's
son and the surviving daughter. The husband of the deceased
daughter has no right to any part of the property.
8umt, October 12th, 1857.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2*) f. 48, p. 1, 1. 13 (see
Chap. IV., B., sec. 1, Q. 1); (.3) Viramitrodaya, f. 205, p. 2, 1. 2.
Kemark. — The daughter's son will inherit only in case his mother died after
his grandmother. In this case he inherits his mother's share of the grand-
mother's property. If his mother died before his grandmother the surviving
daughter of the latter takes the whole.
Q. 6. — A man had two sons. The younger of these died leaving
a widow. The elder subsequently died, leaving a son. The last-
mentioned died leaving a widow and a daughter. The widow also
died, and the question has arisen whether the daughter of the
deceased or the widow of the younger son who died first should
be considered the eldest son's heir?
A. — The widow of the last deceased man is his heir, and on her
death the right of inheritance devolves on her daughter. The
widow of the younger son who died first cannot have any right to
inherit the property of her husband's elder brother's son.
Bombay, Sadr Adalat, July SOth, 1857.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2*) f. 48, p. 1, 1. 13 (see Chap. IV. B., sec. 1, Q. 1).
Q. 7. — A deceased woman of the Sonara caste has left a
daughter and a grandson of her husband's cousin. The daughter
incurred the expense of the funeral ceremonies of her mother.
The grandson underwent the ceremony of shaving his head, and
actually performed the obsequies. He was separate, but used to
474 HINDU LAW. [BOOK I.
keep up a friendly intercourse with the deceased as a relation.
Which of the two will be her heir?
A. — The daughter must be recognised as the heir, her relation-
ship being nearer than that of the grandson.
Khandesh, Maij Slst, 1848.
Authorities. — (1) Vyav. May., p. 134, 1.4; (2*) Mit. Vyav., f. 48, p. 1,
1.13 (see Chap. IV. B., sec. 1, Q. 1).
Q. 8. — A woman died. Her surviving relatives are a daughter
who has no issue and a separated member of the family of her
husband. The question is: Which of these is the heir?
A. — The rule is that when a separated member of a family dies
his wife becomes his heir. In the absence of a wife his daughter
is the legal heir. If the daughter, however, is a widow, and
without male issue, she cannot be the heir. The separated
member of the family of her husband will be her heir.
Surat, February 10th, 1846.
Authority.— *Mit. Vyav., f. 48, p. 1, 1.13 (see Chap. IV. B., sec. 1, Q. 1).
Remark, — The daughter alone is the heir. The Mitakshara and the Mayukha
do not mention barrenness as an impediment to a daughter's inheriting. The
Surat Sastri seems here, as in some other instances, to have given Bengal law.
(See Dayabhaga, Chap. XI., sec. 2.)
Q. 9. — A., a man, and B., his son, lived separate. When B.
died his son C. inherited his property. When C. died, D., the
widow of B., inherited her son's property. D. died leaving two
married daughters. A., the father-in-law of D., is alive. The
question is : Who has the right of inheriting the property of D. ?
A. — As A., the father-in-law of D., was separate from B., the
husband of D., the daughters are the legal heirs (r).
Bofnhay, Sadr Adalat, August 6th, 1849.
Authorities.— (1) Mit. Vyav., f. 61, p. 1, 1. 16 (see Chap. IV. B., sec. 1,
Q. 1); (2) f. 45, p. 1, 1. 5; (3) f. 55, p. 2, 1. 1; (4*) f. 48, p. 1, 1. 13 (see
Chap. IV. B., sec. 1, Q. 1).
(r) This case illustrates pp. 313, 316, 319, 321.
VYA V . , CH . I V . , B . S . 1 . ] DAUGHTER . 475
Q. 10. — It cannot be ascertained whether the husband and
brother-in-law of a woman were separate or united in interests.
It cannot also be ascertained whether, after the death of her
husband, the woman was supported by her father-in-law or
brother-in-law. Will the daughter or the brother-in-law of the
woman, under these circumstances, inherit the property acquired
by the woman?
A. — When two uterine brothers are separate, and one of them
dies, his widow will become his heir, and after the widow's death
her daughter. The daughter alone can inherit the property
acquired by the woman alluded to in the question. The brother-
in-law, whether separate or otherwise, can have no right to it.
Surat, January 25th, 1845.
Authorities.— (1) Vyav. May., p. 137, 1. 5; (2) p. 157, 1. 3 (see Auth. 3);
(3*) Mit. Vyav., f. 61, p. 1, 1. 16 (see Chap. IV. B., sec. 1, Q. 1).
Eemark. — A sum of money, on the death of her husband, was given to a
widow by his undivided brother in lieu of maintenance. With this she bought
land. It was held that the property was her own absolutely, and, being dis-
posable inter vivos at her pleasure, could be equally disposed of by her will (s).
See above, pp. 110, 214, 299-300; and also Book II,, "Partition between
Brothers."
Q. 11. — Can a daughter inherit all her mother's property or
only her Stridhana?
A. — If the mother should have no son the daughter will be her
sole heir; but if the mother has a son the daughter can inherit
only her " Stridhana." The rest will pass into the hands of her
sons.
Dharwar, 1845.
Authority.— *Mit. Vyav., f. 48, p. 1, 1. 13 (see Chap. IV. B., sec. 1, Q. 1).
Eemark. — The Sastri seems to have intended to express the Mayukha doctrine
(See above, p. 135.)
Q. 12. — A woman died. Her husband had a Vatan. She has
two daughters, one of whom has some children and the other has
none. There are distant relations of the husband. The question
is whether the husband's relations or the daughter of the deceased
woman has a right to inherit the Vatan ?
is) Nellaikumara Chetty v. Marakathammal, I. L. R. 1 Mad. 166, referring
to Doorga Daye et al. v. Poorun Daye et al., 5 C. W. R. 141 C. R., and to
Rajah Chandranath Roy v. Ramjai Mazumdar, 6 B. L. R. 303.
476 HINDU LAW. [BOOK I.
Should a custom prevalent in a family or caste be respected
when it is inconsistent with the law of inheritance laid down in
the Sastra ?
A. — In the above case it appears that the wife inherited her
husband's property. On her death her daughter becomes the heir.
If a custom has uniformly and for a long time been respected by
a family or caste, and if the observance of it is not prejudicial to
the rights of any individual or contrary to religion or morality, it
may continue to be respected.
Bombay, Sadr Adalat, May 17th, 1847.
Attthorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 137, 1. 4; (3) p. 7, 1. 1
(see Chap. H., sec. 13, Q. 9); (4) Mit. Achara, f. 52, 1. 1, p. 13 (see Auth. 3);
(6)Viramitrodaya, f. 9, p. 2, 1. 6 (see Auth. 3); (6*) Mit. Vyav., f. 48, p. 1,
1. 13, and f. 62, p. 1, 1. 16 (see Chap. IV. B., sec. 1, Q. 1).
Eemark. — It is obvious that the rights of the individual must themselves
depend on the custom in so far as the custom is binding. Se€ above, p. 151,
sec. V. As to the conditions of a good custom, see Mathura Naikin v. Esu
Naikin (t).
Q. 13. — A man of the Vani caste died. Hisi wife also died
shortly after him, leaving a daughter-in-law, who was a widow,
and three daughters, two of whom were young and unmarried,
and consequently under the protection of the daughter-in-law.
The last-mentioned has apphed for a certificate of heirship to the
deceased, and the question is whether the two daughters have a
right to any portion of the property of their mother, or whether
the whole should be made over to the daughter-in-law alone ?
A. — The daughter-in-law is the heir to all the property left by
her mother-in-law. If the mother-in-law should have any property
which can be called her " Stridhana," the daughters would be
entitled to it. Those daughters who are unmarried will have a
superior claim to it. Out of this property these daughters must
be maintained and married, and the remainder, if any, should be
equally divided among the married and the unmarried.
Ahmednuggur, October 21st, 1851.
Authorities. — (1*) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4);
(2) Vyav. May., p. 134, 1. 4 (see Auth. 1); (3) p. 137, 1. 5; (4) p. 151, 1. 1;
(5) p. 159, 1. 5; (6) p. 156, 1. 5; (7) Vyav. May., p. 157, 1. 3 :
" These distinctions are declared by Gautama : ' A woman's property goes
to her daughters, unmarried or unprovided.'" (Borradaile, p. 125; Stokes's
H. L. B. 103).
(t) 1. L. R. 4 Bom. 545, 571.
VYAV.,CH. IV., B. S. 3.] daughter's SON. 477
Eemarks. — 1. The Sastri's answer is right only if the son died after his
father, since in this case only his widow (the daughter-in-law of the question)
would inherit his property.
2. If the son died before his father his rights revert to the latter (v). After
the father's death his widow inherits the property, and from her her daughters.
See above, pp. 135, 138, 308.
Q. 14. — A Lingayat woman died. Her stepson has lived
separate from her for the last twenty years, and her daughter is a
married woman. Which of these will be her heir?
A. — The daughter will inherit her mother's Stridhana, and the
son will inherit such property of his father as may have remained
in the possession of the deceased.
Dharwar, Augicst Qth, 1851.
Authorities.— (1) Vyav. May., p. 83, 1. 7; (2) p. 168, 1. 4; (3*) Mit. Vyav.,
f. 48, p. 1, 1. 13 (see Chap. IV. B., sec. 1, Q. 1).
Kemark. — The Sastri, as in answer to Q. 11, intends to give the Mayukha
doctrine. (See Borradaile, 126; Stokes's H. L. B. 104.)
B.— SECTION 2.— GEANDDAUGHTEE.
Q. 1. — There are two relatives of a deceased woman. The one
is her daughter's daughter, and the other her husband's brother's
daughter. Which of these should succeed to the deceased's
property ?
A. — The daughter's daughter is the heir to the property.
Dhanoar, December 24:th, 1847.
Authorities.— (1) Viramitrodaya, f. 217, p. 1, 1. 15; (2) Mit. Vyav., f. 61,
p. 2, 1. 6 :
" On failure of daughters, her granddaughters in the female line take the
succession under this text : ' If she leave progeny it goes to her (daughter's)
daughters.'" (Colebrooke, Mit., p. 369; Stokes's H. L. B. 462.)
B.— SECTION 3.— DAUGHTEE'S SON.
Q. 1. — A woman who held a Kulakarani Vatan died. There are
her relations of ten days (w) and a son of her daughter. Which
of these should succeed to the Vatan?
(v) See Udaram Sitram v. Ranu Pandujee et al., 11 Bom. H. C. E. 76.
{w) Ten days here show the duration of the mourning and the impurity
supposed to result from the death of a relation. The more remote the relation-
ship the less is the duration. Hence relations are called in Marathi according
to their various degrees, as of ten days, three days, one day, or of ablution.
(Sapindas).
478 HINDU LAW. [BOOK I.
A. — Tliere is an order of heirs laid down in the Sastras in the
case of persons who, having separated themselves from and not
having united with the other members of a family, have died
without male issue. The order commences with wife, who is fol-
lowed by other relatives having a right to succeed one after
another. The Sastra also declares that all the heirs of a man
living and about to come into life expect to inherit his Vatan, and
that no man should therefore alienate it to his family's prejudice.
From these it appears that the daughter's son should inherit all
the property of the deceased except the Vatan, which should be
given to the (nearest) relations of the same Gotra as the deceased.
Khandesh, October 5th, 1853.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 3); (2) p. 196, 1. 3;
(3) Mit. Vyav., f. 55, p. ^A, 1. 1 (see Chap. 1, sec. 2, Q. 4); (4*) Mit. Vyav.,
f. 61, p. 2, 1. 7 :
"On failure of daughter's daughters the daughter's sons are entitled to the
succession. Thus Narada says : 'Let daughters divide their mother's wealth;
or on failure of daughters, their male issue.' For the pronoun refers to the
contiguous term 'daughters.'" (Colebrooke, Mit., p. 370; Stokes's H. L. B.
462.)
Eemark. — The decision as to the Vatan is based on the supposition that the
Vatan is not Stridhana or separate property subject to the ordinary rules of
descent. But see Chap. I., sec. 2, Q. 5, and Chap. II., sec. 8, Q. 1.
J5.— SECTION 4.— SONS.
Q. 1. — A woman died. Her husband and son have survived
her. Which of these is her heir? And who has a right to inherit
her Palu?
Supposing the husband has a right to inherit her Palu, will his
right be destroyed because the Palu has been applied towards the
purchase of some property, and because the deed of purchase sets
forth that the property purchased was intended for the benefit of
the woman's children?
A. — It is not mentioned in the question whether the woman had
obtained her Palu from her husband or from her father, or whether
it was earned by her by following any particular trade. It is not
also stated whether the deceased woman has any daughter.
The son of a deceased woman has a right to inherit all the pro-
perty of his mother. When a woman has children her husband
has no right to her property. In the absence of a daughter a son
has a right to inherit her Palu. Though the Palu has been applied
VYAV.,CH. IV., B. S. 4.] SONS. 479
towards purchasing some property, the husband can have no claim
on it.
Surat, June Uth, 1848.
Authorities.— (1) Mit. Vyav., f. 48, p. 1, 1. 14 (see Chap. II., sec. 14,
I. A. 1, Q. 3); (2) Vyav. May., p. 156, 1. 1; (3*) Mit. Vyav., f. 61, p. 2, 1. 9 :
" If there be no grandsons in the female line sons take the property, for it
has already been declared the (male) issue succeeds in their default." (Cole-
brooke, Mit., p. 370; Stokes's H. L. B. 462.)
§. 2. — A woman received a house from her father. She had
two sons. One of them died, leaving a widow. The mother died
after the death of her son. The question is whether the surviving
son or the daughter-in-law should inherit the house given to the
woman by her father?
A. — The son, and not the daughter-in-law, has the right to
inherit the property of his maternal grandfather.
Surat Adalat, June 1th, 1827.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 61, p. 2, 1. 9 (see
Chap. IV. B., sec. 4, Q. 1).
Remark. — The son inherits the property as heir of his mother, not as heir
of his maternal grandfather.
Q. 3. — A woman of the Sudra caste died. One of her sons is in
gaol, undergoing the sentence of imprisonment for life. The other
died, leaving a son. The question is whether the grandson or the
son is the heir to the woman's property?
A. — The grandson, as well as the son, has a right to inherit the
property.
Poona, May ISth, 1851.
Authorities.— (1) [Vyav. May., p. 90, 1. 2]; (2*) Mit. Vyav., f. 61, p. 2,
1. 9 (see Chap. V. B., sec. 4, Q. 1).
Remark. — If the grandson's father died before his mother the grandson can-
not inherit, as grandsons inherit their mother's Stridhana on failure of sons
only.
Q. 4. — A man died, and his property was taken possession of by
his mother. After the death of the mother her daughter came
into possession of the property. On the death of the daughter her
480 HINDU LAW. [BOOK 1.
son assumed possession. He is now sued by a separated cousin
of the original proprietor for the recovery of the property, and the
question is whether it should be made over to him?
A. — The several successions described in the question appear to
be legal, and the possession of the grandson cannot be disturbed.
Rutnagherry , September drd, 1855.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) [p. 151, 1. 2] ; (3) p. 167,
1. 3; (4) Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4); (5) f. 61,
p. 1, 1. 16 (see Chap. IV. B, sec. 1, Q. 1); (6*) f. 61, p. 2, 1. 9 (see Chap. IV.
B., sec. 4, Q. 1).
Q. 5. — A. married a woman, B., who had been previously
married, and who brought to his house the son C, whom she had
borne to her first husband. A. died without having either a son
or a daughter bom of his marriage with B. On his death his wife
B. inherited his property. After B.'s death will the property of
A. pass to his blood relations or to C, the son of B. by her first
husband ?
A. — If A. died without issue his widow B. was his heir, and any
property which she inherited from A. became her Stridhana.
As she had neither a son nor a daughter by A., and had a son by
her former hlusband, this son will be her heir, and on her death
will succeed to the property of which she may die possessed, in
preference to any relatives of her husband A.
Broach, September 11th, 1851.
Authorities.— (1) [Mit. Vyav., f. 60, p. 2, 1. 16] ; (2*) f. 61, p. 2, 1. 9 (see
Chap. IV. B., sec. 4, Q. 1).
Eemarz. — See above, pp. 137-8, 308, 315 ; but also p. 318 ss. A stepson has,
as such, no right of succession to his stepfather's property (a?). He can claim
only maintenance.
Q. 6. — A woman of the Maratha caste adopted a son. The
witnesses have proved the fact. Can the adopted son be legal
heir to the property of the deceased?
A. — It having been proved that the adoption was solemnised
with due ceremonies, the adopted son is the proper heir.
Rutnagherry , September 26th, 1845.
(x) Comp. Tupper, Panj. Cust. L., Vol. II., p. 150. It is as heir to his
mother's estate that he is entitled. As to the quantum of this estate, see Brij
Indar's Case, I. B. 6 I. A., at p. 14.
VYAV.,CH. IV. B., S. 5.] HUSBAND. 481
Authority not quoted.
Kemark. — There is no special authority to show that the adopted son inherits
his adoptive mother's Stridhana. It follows from his occupying in all respects
the position of a son where there is not one by birth.
B.— SECTION 5.— HUSBAND.
Q. 1. — A woman died. Her husband lived with his father as a
member of an undivided family. His age was about nineteen
years. Is he or his father entitled to receive the " Palu " of the
deceased woman?
A. — If the deceased has left no children her husband has the
right to receive her " Palu."
Surat, March 28th, 1848.
AuTHOEiTY. — Mit. Vyav., f. 61, p. 1, 1. 12 :
" The property of a childless woman married in the form denominated
Brahma, or in any of the four (unblamed modes of marriage), goes to her
husband; but if she leave progeny it will go to her (daughter's) daughters, and
in other forms of marriage (as the Asura, &c.) it goes to her father (and mother
on failure of her own issue)."
" Of a woman dying without issue, as before stated, and who had become a
wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha,
Prajapatya, the (whole) property, as before described, belongs in the first place
to her husband." (Colebrooke, Mit., p. 368; Stokes's H. L. B. 460.)
Remark. — According to Manu, whose view is adopted in the Vyav. May., the
property of a woman married according to the Gandharva form of marriage
goes likewise to the husband. The reason is that Manu and others consider the
Gandharva rite as lawful for the Kshatriya (y). As to the Bengal law of
inheritance to Stridhana, see Judoonath Sircar v. Bussunt Coomar Roy (z).
Q. 2. — A woman received certain property from her father at or
after the time of her marriage. She is now dead. Who is entitled
to this property, her husband or her relations on the side of her
father?
A. — The property which may have been granted to the woman
by her father on the occasion of her marriage or afterwards must
be considered her Stridhana. After her death her children are
iy) See May., Borr., p. 178; Stokes's H. L. B. 106.
(z) 11 B. L. E. 286, 296; S. C. 19 C. W. R. 264, which overrules the decision
at 16 C. W. R. 105.
H.L. 31
482 HINDU LAW. [BOOK I.
entitled to inherit it. If she has no children her husband will be
her heir. Her father has no right whatever to such property.
Broach, February 12th, 1852.
Authority.— Mit. Vyav., f. 61, p. 1, 1. 12 (see Chap. IV. B., sec. 5, Q. 1).
Eemark. — Similarly ruled in Judoonath Sircar v. Biissunt Coomar Roy (a),
and Bistoo Pershad v. Radha Soondernath (h).
Q. 3. — A woman received some property, consisting of a house
and other things, from her father. She has neither a son nor a
daughter. In case of her death can her Pat-husband inherit her
property ?
A. — By the custom of the caste, the Pat-husband is the heir.
Sadr Adalat, April 2nd, 1852.
Authorities. — (1) Mit. Vyav., f. 61, p. 1, 1. 12 (see Chap. IV. B., sec. 5,
Q. 1); (2) f. 61, p. 1, 1. 10; (3) Mit. Achara, f. 8, p. 1, i. 8; (4) Vyav. May.,
p. 160, 1. 2; (6) Nirnayasindhu, p. 203, 1. 26.
Remark. — As re-marriages of widows have been legalised by Act XV. 1856,
the decision seems in accordance with the present law.
Q. 4. — A woman, leaving her husband, lived with a man, from
whom she received some ornaments. On her death the authorities
seized her property and treated it as heirless. A creditor, who
holds a decree against her husband, attached the ornaments. The
question has therefore arisen whether the ornaments should be
held liable for her husband's debts, restored to the man who
originally presented them to her, or considered as heirless
property?
A. — As the ornaments are not the property of the woman's
husband his creditor cannot attach them. If the woman lived
and died as a faithful concubine of the man who presented her
with the ornaments he will inherit her property. If the woman
died as a public prostitute the Sirkar may spend a suitable sum
for her funeral rites, and take the rest as heirless property.
Ahmednuggur, November 1st, 1848.
(a) Supra (2).
(b) 16 C. W. R. 115.
VYAV.,CH. IV. B., S. 5.] HUSBAND. 488
Authorities.— (1) Vyav. May., p. 236, 1. 4; (2) p. 199, 1. 4; (3) p. 200, 1. 3
and 7; (4) p. 202, 1. 17; (6) p. 24, 1. 1; (6) Mit. Achara, f. 16, p. 1, 1. 13;
(7) Mit. Vyav., f. 68, p. 2, 1. 16; (8) f. 60, p. 2, 1. 12; (9) f. 57, p.l, 1. 5;
(10) f. 61, p. 1, 1. 12 (see Chap. IV. B., sec. 5, Q. 1).
Remark. — If the ornaments were the property of the deceased, and her hus-
band had not been divorced from her, he will be her heir, and consequently
his creditors may attach them.
Q. 5. — A Kunabi kept a woman in his house. Her husband
was then alive. The Kunabi gave her some ornaments, a nose-
ring, &c. She died, and the question is : Who is the heir to her
ornaments ?
A. — The Kunabi is the heir to the woman's ornaments, even
though they may have been given to her as a present or as a token
of his affection, for the heir of a slave is her master. If they
were granted merely for her use, his right to them cannot be
considered to have ceased.
Ahmednuggur, February 17th, 1847.
Authorities.— (1) Vyav. May, p. 152, 1. 8; (2) p. 153, 1. 8; (3) p. 202, 1. 7.
Remarks. — 1. According to the Hindu Law, the woman who commits herself
into the keeping of a man becomes his slave (see Vyav. May., p. 171, Borra-
daile; Stokes's H. L. B. 137, and above, Chap. II., sec. 3, Q. 12), and gifts
made to her revert at her death to her master. But as any title to property
based on slavery is abolished by Act V. of 1843, the property of the woman will,
if she was not divorced from her husband, fall to the latter.
2. The acceptance of property earned by a wife by prostitution would be
sinful on the part of the husband. But the sin may be expiated by penance,
and cases where this actually has been done are said to have occurred only
recently.
Q. 6. — A woman of the Simpi (tailor) caste, having lived the
life of a prostitute, died during the absence of her husband. Her
husband's brother has applied for the property of the deceased.
Can he get it?
A. — If the deceased woman had acquired her property by
prostitution, and if she was out of the caste, her husband's brother
can have no right to it. If the property in her possession belongs
to her absent husband his brother cannot claim it while he is
alive. After his death his brother can inherit it.
Poona, December 17th, 1859.
Authority. — Mit. Vyav., f. 61, p. 1, 1. 12 (see Chap. IV. B., sec. 6, Q. 1).
Remark.— The property acquired by the woman belongs to her husband. See
preceding cases.
484 HINDU LAW. [BOOK I.
jB.— SECTION 6.— THE HUSBAND'S SAPINDAS.
Introductory Remarks.
1. The same discrepancy which prevails between the Mitak-
shara and the Mayukha in regard to the definition of Stridhana,
or *' woman's property," shows itself again in the rules on the
succession to this kind of property, and the difficulties arising
therefrom are considerably increased by the circumstance that the
Viramitrodaya also departs from the line laid down by the
Mitakshara.
2. Vijnanesvara, who declares every kind of property acquired
by a woman by any of the recognised modes of acquisition to be
Stridhana (c), gives the simple rule {d) that the property of a
childless wife goes, if she was married according to the Brahma,
Daiva, Arsha, or Prajapatya rites, to her husband, and on failure
of him " to his nearest Sapindas." If she was married according
to the Asura, Gandharva, Eakshasa, or Paisacha rites, it goes to
her mother, her father, and their nearest Sapindas successively.
The latter part of this rule has no immediate interest, as no case
in which the inheritance to a woman married according to the last
four rites was disputed occurs amongst the questions which
follow (e).
It will therefore only be necessary to consider the first part of
the rule. According to the passage from Acharakanda of the
Mitakshara, quoted (supra, pp. 112, 113,) it appears that the term
" Sapinda " includes, on the father's side, all blood relations
within six degrees, together with the wives of the males, and on
the mother's side those within four degrees. As regards the
expression tat prtysannanam, " to his nearest," Mitramisra in the
Viramitrodaya (/) and Kamalakara in the Vivadatandava both
(c) Colebrooke, Mit., Chap. II., sec. 11, cl. 2 ff. (See above, sec. XI.,
p. 267 88.)
(d) Ihid., cl. 11 and 25.
(e) See the casej of Vijiarangam v. Lakshman, 8 Bom. H. C. E. 244
0. C. J. : — " The husband's nearest kinsman is heir to a woman's separate
property." (Col., in 2 Str. H. L. 412.)
(/) Viramitrodaya, f. 219, p. 1, 1. 3 : — " On failure of him (the husband)
the succession goes to the husband's nearest (Sapindas). For, as it is by the
husband that the nearness to the possessor is barred, the nearness to the
husband must be made the principal consideration." See Transl., p. 240.
VYAV.,CH. IV. B., s. 6.] husband's sapindas. 485
explain it to mean " the Sapindas of the husband succeed according
to the degree of their nearness to him."
Moreover, Kamalakara is of the opinion that the ** nearne&B "
is to be determined by the rule given in the Mitakshara (g) in
regard to the succession to the property of a male who died
without male descendants, and that consequently first the wife
— that is, the rival wife of the deceased — succeeds; next, the
daughter, that is the deceased's stepdaughter; thirdly, the
deceased's stepdaughter's son ; fourthly, the husband's mother,
and so on.
This opinion seems to be based on the consideration that, as
the Sapindas inherit only through the husband, they virtually
succeed to property coming from him, and that consequently they
must inherit in the order prescribed for the succession to a male's
estate. Against this it may indeed be urged that the word
" pratyasanna," "nearest," if employed in regard to persons
generally, has the sense of "nearest by relationship," and that
the list of heirs to a man without male descendants is not made
solely with regard to nearness by relationship, since, for instance,
it places the daughter's son before the parents and brothers,
though he is further removed than the former, and not nearer
related than the latter. If the objection be admitted we should
take the word " pratyasanna " in its first sense, and assume that
Vijnanesvara really intends " nearness by relationship " to be the
principle regulating the succession of the Sapindas.
On this interpretation the heirs of childless widows in the first
instance would be those kinsmen related to the husband in the
first degree — that is, rival wives of deceased, their offspring, and
the husband's parents, all inheriting together; next the kinsmen
related to the husband in the second degree, as the husband's
brothers, deceased's stepchildren's children, &c., and soon to the
sixth degree inclusive. (See Dig. Vyav., Chap. IV. B., sec. 6,
II. c, Q. 2.) But, the identity of the wife with her husband being
accepted as a leading principle of the Mitakshara, the rule seems
on the whole most consonant to it, whereby precedence in
heritable relation to him gives a like precedence and order of
succession in relation to his widow. Such appears to be the rule,
too, which custom has preferred in this part of India.
3. In opposition to these doctrines Nilakantha in the Mayukha
(g) Colebrooke, Mit., Chap. II., sec. 1, cl. 2; Stokes's H. L. B. 427.
486 HINDU LAW. [BOOK I.
makes a twofold division of the Stridhana of a childless woman (h)
— I., into parHbhashika , " Stridhana proper," as defined by the
texts of Manu, Katyayana, and others — that is, property presented
at the time of marriage (yautaka), and subsequent presents of the
relations (anvadheya), and of the husband (pritidatta) ; and II.,
into paribhashihatiriktavibhagakartanadilabdha, Stridhana other
than Stridhana proper, acquired by division and the like — that is,
property acquired by division, inheritance, or any of the other
recognised modes of acquisition. For each kind he gives a
different order of heirs: I. " Stridhana proper " goes (a) if the
woman was married according to the Brahma, Arsha, Prajapatya,
Daiva, or Gandharva rites, to the husband, and (b) if she was
married according to the Asura, Eakshasa, or Paisacha rites, to her
parents (f). The next heirs after the husband and the parents are
in either case (k) 1, the widow's sister's son; 2, the husband's
sister's son; 3, the husband's brother's son; 4, the widow's
brother's son; 5, the son-in-law; 6, and the husband's younger
brother. After these " the woman's Sapindas in the husband's
family according to the degree of their nearness to her through
him " (l) inherit if she was married according to one of the five
first-mentioned rites. If she was married according to one of the
last-mentioned three rites her father's Sapindas succeed (m).
II. '* Property other than Stridhana proper " devolves, according
to the rules which are given for the descent of a separated male 's
property, on the sons, son's sons, &c. (n). See Stokes's H. L. B.
105.
(h) See Borradaile, May., Chap. IV., sec. 10, cl. 26 and 27; Stokes's
H. L. B. 105.
(i) See Borradaile, May., Chap. IV., sec. 10, cl. 28, 29; Stokes's H. L. B.
105-6.
(k) Borradaile, ibid., cl. 30; Stokes's H. L. B. 106. See also Stokes's
H. L. B. 499. The Smriti Chandrika, distinguishing between the constituents
of Class I. and those of Class II., assigns the yautaka to the unmarried
daughters alone in equal shares. The anvadheya and the pritidatta it assigns
in equal shares to sons and daughters. The second class it assigns in equal
shares to the unmarried daughters and the married ones who are indigent.
(See Smriti Chandrika, Chap. IX., sec. 3.)
(Z) Borradaile, ibid, cl. 28; Stokes's H. L. B. 105.
(m) The Smriti Chandrika, loc. cit., para. 30, quotes Katyayana to the effect
that gifts from kinsmen go only on failure of kinsmen to the husband. In case
of an Asura marriage the kinsmen who actually gave, Devanda Bhatta says,
take back their property. The Sulka goes in every case to the uterine brothers,
Mit., Chap. II., sec. 11, p. 14; Stokes's H. L. B. 461.
in) Borradaile, May., ibid., cl. 26; Stokes's H. L. B. 105. See ab-ve, p. 138.
VYAV., CH. IV. B., S. 6l.] husband's SAPINDAS. 4B7
4. As the Mitakshara is tJie highest authority in the
Bombay Presidency, the subjoined questions have been
mainly arranged according to the principle laid down in
that work. There occurs, however, one deviation from
it. The Sapindas have been divided into Sagotra or
Gotrajas — that is, those belonging to the same family as the
husband, bearing the same name — and Bhinnagotras — that is,
those belonging to a different family ; and the former, as a body,
have been placed before the latter. The opinion that the Sagotras
inherit before the Bhinnagotras seems to have been held by most
of the Sastris also, who wrote the following Vyavasthas, and was
shared by the Law Officer who assisted in the compilation of the
Digest. It is based on the principle which prevails in the case
of a male's property — namely, that no property should be allowed
to pass out of the family through inheritance as long as a single
member of the family survives. Though the Mitakshara does not
expressly state that this principle holds good in the case of Strid-
hana also, this may be inferred not only from the general con-
sideration that Hindu lawyers regard the family connected by
name as a closely united whole, but especially also from the
circumstance that, according to the Mitakshara, the sonless
husband's property merges on his death in the Stridhana. In
accordance with these principles the questions referring to the
rights of Sapindas in general have been placed first (sec. 6., I.);
next come those referring to the rights of the Gotraja- Sapindas
(sec. 6, II.); and lastly those referring to the Bhinnagotra-
Sapindas (sec. 6, III.). Both the Gotrajas and Bhinnagotras
have been arranged according to the degree of the nearness of their
relationships.
B.— SECTION 6.— THE HUSBAND'S SAPINDAS.
I. — Sapindas in General.
Q. 1. — A widow died. A relation claims to be her heir. He
is the sixth descendant, while the widow's husband was the fifth
descendant, from one and the same ancestor. Should he be
declared her heir?
^.— Yes.
Tanna, February 16th, 1847.
488 HINDU LAW. [BOOK 1.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 58, p. 2, 1. 16; (3)
f. 61, p. 1, 1. 14 :
" On failure of him (the husband) it (the woman's property) goes to his
nearest kinsmen (Sapindas) allied by funeral oblations." (Colebrook, Mit.,
p. 368; Stokes's H. L. B. 461.)
Q. 2. — A man claims to be the heir of a deceased woman. He
appears to be her husband's relation by consanguinity. Can he
be her heir?
A. — As the man belongs to the same family he will be the heir
of the deceased.
Ahmednuggur, November 21th, 1848.
Authorities. — (1) Vyav. May., p. 159, 1. 3 (see Auth. 5); (2) p. 161, 1. 7;
(3) p. 142, 1. 8; (4) p. 181, 1. 5; (5*) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6, I., Q. 1).
Eemark. — Provided that the claimant, if a Gotraja, is related to the
deceased's husband within the sixth degree; or if a Bhinnagotra-Sapinda,
within the fourth degree.
Q. 3. — A widow of the Prabhu caste lived with her brother, who
not only afforded her maintenance but defrayed the expenses of
her pilgrimages. She inherited no property from her husband.
So situated the woman died, and the question is whether her
brother or the relatives of her husband are entitled to her
property ?
A. — As the woman did not inherit any property from her
husband, and as she lived under the protection of her brother, the
latter is the heir.
Ahmednuggur, February 14t?i, 1850.
Authority. — Vyav. May., p. 159, 1. 2.
Eemarks. — 1. According to the Mitakshara Vyav., f. 61, p. 1, 1. 14, the
husband's Sapinda relations are the heirs. (See Chap. IV. B., sec. 6 I., Q. 1.)
2. According to the Mayukha the property would fall to her brother only if
she was married by one of the three blameable rites. (See Introductory
Eemarks, cl. 3.) (o).
(o) This would not generally occur or be presumed except in a caste in
which the purchase of wives is recognised. See Vijiarangam v. Lakshman,
8 Bom. H. C. E. 244 0. C. J.
VYAV.,CH. IV. B., S. 6ll. 6.] husband's MOTHER. 489
II. Husband's Sagotra Sapindas.
a.— STEPSON.
Q. 1. — Will a man inherit the property of his stepmother?
A. — If the stepmother has neither a daughter nor a son her
stepson will be her heir.
Ahmednuggur, July SOth, 1846.
Authority.— *Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B., sec. 6 I.,
Q. 1).
Eemark. — The stepson cannot take before the husband. " He takes the
property on failure of offspring, husband, and the like." (Smriti Chandrika,
Chap. IX., sec. 3, p. 38.)
Q. 2. — A wife, having been abandoned by her husband, became
a Murali (p) and adopted a son. Will this adopted son or the
son of the second wife of her husband be her heir?
A. — The son of her husband's second wife is her heir.
Poona, June 2Srd, 1846.
Authority not quoted.
Kemarks. — 1. The answer is correct. For though abandoned by her hus-
band the Murali remains his wife. The second wife's son is therefore entitled
to receive her property as Sapinda relation of her husband. The adoption
made by her was null.
2. When a person has more than one wife, and when one of them has a
son, the other cannot adopt. The object of the Sastra is to create, by adoption,
an heir to the husband, and not to the wife, except incidentally.
3. See the authorities of the preceding Question.
II. 6.— THE HUSBAND'S MOTHEE.
Q. 1. — Can a mother-in-law inherit her daughter-in-law's
property ?
^.— Yes.
Poona, October 26th, 1858.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2) p. 160, 1. 4; (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 1., Q. 1).
(p) A Murali is a woman nominally devoted to the worship of Khandoba,
but really a beggar, singer, and prostitute.
490 HINDU LAW. [BOOK I.
Q. 2. — A man had two wives. Each of them had a son and a
daughter-in-law. The elder wife and her son died first. The man
also died afterwards. His death was followed by the death of his
son bom by the younger wife. His widow, under a decree of the
Civil Court, obtained possession of the property of the family.
When the daughter-in-law died the property passed into the hands
of the mother-in-law. The daughter-in-law of the elder wife has
sued the stepmother-in-law for possession of the property. The
question is : Who is the nearer heir of the daughter-in-law of the
man's younger wife?
A. — The nearer heir is the younger wife of the man. The elder
wife's daughter-in-law must be considered as a somewhat distant
relation.
Rutnagherry , June 25th, 1852.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2) p. 83, 1. 3; (3) p. 134, 1. 4; (4) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1).
Ebmarks. — 1. The authorities quoted by the Sastri refer to the succession
to the estate of a male.
2. The mother-iu-law is related to the deceased daughter-in-law's husband
in the first degree, the elder wife's daughter-in-law in the third.
Q. 3. — A woman of the Vani caste died. She has two mothers-
in-law, one direct, and the other a stepmother-in-law. Which of
these is the heir of the deceased?
A. — As the direct mother-in-law of the deceased had brought
up and protected her husband, she will be her heir. In the
absence of the mother of the husband the stepmother will have
the right to inherit the property of the deceased.
Ahmedahad, October 22nd, 1859.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2*) f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1); (3*) Vyav. May., p. 140, 1. 1 (see Chap. II.,
sec. 14 I. A. 1, Q. 1).
Remarks. — 1. The authorities quoted by the Sastri refer to the succession
to a male's estate.
2. The answer nevertheless seems correct, as the mother is more nearly
related to her son than the stepmother.
VYAV.,CH. IV. B., S. 6ll. C] FELLOW -WIDOW. 491
II. c— FELLOW- WIDOW.
Q. 1. — A property was equally divided between an aunt and her
nephew. When the latter died his two widows divided his share
between them. One of these widows is dead, and the question
is: Who should take her share as heir, the other widow or the
aunt?
A. — The other widow, and not the aunt.
Ahmednuggur, July 11th, 1846.
Authorities. — (1*) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B., sec. 6 I., Q. 1).
Q. 2. — Government settled upon a widow an annual allowance
of Rs.300. At her death certain arrears were due to her by
Government. The surviving members of the family are a fellow-
widow and some others. The deceased widow, when she was
alive, had authorised her brother to draw the arrears and to spend
the money in the performance of her funeral rites. The question
is whether the right of receiving the arrears should belong to her
brother or her fellow-widow?
A. — The arrears are on account of an allowance for the main-
tenance of the widow; they must therefore be considered Strid-
hana. The fellow-widow is entitled to them as her heir.
Sumt, August 29th, 1846.
Authorities. — (1*) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B., sec. 6 I., Q. 1).
Remarks. — The assignment by the deceased to her brother is inoperative
according to Hindu law, as the contemplated duty cannot be performed by him,
but only by her husband's family, so long as any of the latter survive.
2. The son of a stepdaughter of a widow deceased, by her co-wife who died
before the husband, is heir to such widow (g). As the widow inherited from
her husband, the succession would, according to the Bengal theory, be to the
same person as heir to the deceased widow's husband, his own maternal grand-
father. See above, pp. 128, 316, 318.
(q) Motiram Sukram v. Mayaram Barkatram, Bom. H. C. P. J. for 1880,
p. 119.
492 HINDU LAW. [BOOK I.
II. d.— THE HUSBAND'S BEOTHEE.
Q. 1. — A number of uterine and half-brothers divided their
property and entered into a mutual stipulation that when any one
of them died his property should be divided among the survivors,
who should support the deceased's widow. Subsequently one of
them died. His widow lived separately from her brothers-in-law,
but was supported by them. When she died the question arose
whether her husband's uterine brothers, or his half-brothers, or
both, should be considered her heirs?
A. — When a separated brother dies his widow is his heir.
When she dies her heir is her husband's uterine brother. If her
husband had not separated from his brothers, and if she was sup-
ported by the uterine brothers as well as the stepbrothers, they
are all her heirs.
Ahmednuggur, October 21st, 1848.
Authorities.— (1) Vyav. May., p. 134, 1. 4 (see Auth. 9); (2) p. 135, 1. 6;
(3) p. 140, 1. 1 ; (4) p. 133, 1. 2 ; (5) p. 159, 1. 3 (see Auth. 10) ; (6) p. 136,
1. 2 (see Chap. I., sec. 2, Q. 3); (7) p. 152, 1. 4 and 5; (8) p. 108, 1. 3; (9*)
Mit. Vyav., f. 55, p. 2, 1. 1 (see Chap. I., sec. 2, Q. 4); (10*) f. 61, p. 1,
1. 14 (see Chap. IV. B., sec. 6 I, Q. 1).
Q. 2. — A deceased woman has no sons or other near relations,
but there are one brother-in-law and four sons of another brother-
in-law, who are all united in interests. The question is : Which
of these will be her heir?
A. — The brother-in-law and the sons of brother-in-law will all
be her heirs (r).
Ahmednuggur, November 24tJi, 1859.
Authorities. — (1) Vyav. May., p. 159, 1. 2 and 5 (see Auth. 3); (2*) p. 140,
1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1); (3*) Mit. Vyav., f. 61, p. 1, 1. 14
(see Chap. IV. B., sec. 6 I., Q. 1).
Q. 3. — Of four brothers three died. Their widows, having
received the shares due to their respective husbands, lived
together. They did not divide their property. One of them after-
(r) The brother-in-law must have the preference as nearer by one degree.
VYAV.,CH. IV. B., s. 6 II. d.] husband's brother. 493
wards died, and the question is : Who is her heir, the surviving
brother or the other two widows?
A. — The surviving brother is the heir.
Ahmednuggur, May 2Qth, 1859.
Authorities.— (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B., sec. 6 I., Q.l).
Q. 4. — A woman of the Maratha caste died. She had neither
a son nor any other near relation. There are, however, two
brothers-in-law and a separated second cousin's son. Which of
these should be considered the heir of the deceased ?
A. — The brothers-in-law must be considered nearer than the
nephew (s), and they should therefore take each a half of the
deceased's property.
Tanna, January 19tj/i, 1853.
Authorities.— (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1,
Q. 1); (2) p. 159, 1. 2; (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6, I., Q. 1.)
Q. 5. — A man of the Mali caste died. He left a widow and
some property. The widow subsequently died. There are now
two heirs, the widow's sister and a brother of her husband. The
question is: Which of these is the heir?
Suppose a woman of the Mali caste had certain property, and
that she died during the lifetime of her husband ; if the husband
die afterwards, and there be a sister of the woman and son of a
brother of her husband, which of them will be the heir?
A. — If a man and a woman of the Mali caste should die with-
out issue the property of the husband goes to his brother, and not
to his wife's sister.
If a woman of the Mali caste has some property given to her by
her father, and if her husband dies before her, her father — and,
among his near relations, her sister — will have the right to take
her property.
Broach, June 29th, 1852.
(s) That is, Even than the nephew — much more than their competitor here.
494 HINDU LAW. [BOOK I.
AuTHOEiTiES.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1).
Remark. — The second part of the answer would only be right in the case of
an Asura or other disapproved marriage. In the case of the Brahma, &c.,
approved rites, the husband inherits from his wife. See the following Question.
Q. 6. — Who will inherit a woman's property, her own brother
or her husband's brother?
A. — The brother-in-law may inherit so much of the woman's
property as belonged to her husband, and that which she may
have acquired from her parents and others will pass to her
brother.
Dharwar, 1845.
Authorities. — (1*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 I., Q. 1); (2) Viram., f. 219, p. 2, 1. 6 :
" The property of a childless woman, which she received from her relations,
goes on her death to them, and on failure of them to her husband. For
Katyayana says : ' (Stridhana) which has been given by the (wife's) relations
goes to them; on failure of them to the husband.' "
Ebmark. — The Sastri's answer agrees with the doctrine laid down in the
passage quoted above. But the decision can hardly stand, for —
(1) The Mayukha, p. 160, 1. 7 (Borradaile, p. 129; Stokes's H. L. B. 106)
refers the passage of Katyayana to women only who were married according
to one of the blamed rites (Asura). Moreover, instead of " goes to< her
husband," the reading is there " goes to her son."
(2) According to the Mitakshara the whole property of the deceased goes to
the husband's brother (t).
Q. 7. — A widow of a " Sudra " became a ** Jogtin " (v), and
remained in that order for about twelve years. About a fortnight
before her death she came to the house of her brother, and there
died. The question is whether her brother or her husband's
brother should inherit her property?
A. — If any money was received by the woman's father from
her husband at the time of her marriage her brother will be her
heir. If her father received no money, or if it cannot be ascer-
(t) Col. Mit. 368; Stokes's H. L. B. 461. See Musst. Thakoor Deyhee v.
Rat Baluk Ram; 11 M. I. A. 169.
(v) A woman devoted to the worship of the goddess called Yellumma, near
Dharwar. She is to Yellumma what a Murali is to Khandoba in the Dekhan,
what a Bhavin is to Eawalnatha in the Konkan.
VYAV., CH. IV. B., S. 6 II. /.] DAUGHTER-IN-LAW. 495
tained whether any money was received or not, her husband's
brother will be her heir.
Dharwar, June Srd, 1850.
Authorities.— (1) Vyav. May., p. 169, 1. 3; (2*) Mit. Vyav., f. 61, p. 1,
1. 14 (see Chap. IV. B., sec. 6 I, Q. 1).
Eemark. — See the case of Vijiarangam v. Lakshman (w).
II. c— THE HUSBAND'S HALF-BEOTHER.
Q. 1. — When there are two relatives of a deceased woman —
namely, her husband's half-brother and her husband's half-
brother's son — which of these will be her heir?
A. — The husband's half-brother, being the nearest, will have
the precedence.
Dharwar, 1845.
Authorities.— (1*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 I., Q. 1); (2*) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1).
II. /.—THE DAUGHTER-IN-LAW.
Q. 1. — A widow died, leaving a widowed daughter-in-law and
also a widowed daughter-in-law's daughter, who has a son. Who
succeeds to the inheritance ?
A. — The daughter-in-law, being the nearest, and " Sapinda "
relation of the deceased widow, will inherit the property.
Surat, July 25th, 1859.
Authorities.— (1) Manu IX. 187 (see Dig. Vyav., Chap. II., sec. 14 I. B. b. 1.
Q. 1); (2) Nirnayasindhu, Chapter on Stridhana (ibid.); (3) Vyav. May.,
p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1).
Eemarks. — 1. The contrary case, Bandam Settah et al. v. Bandam Mahalak-
shimi (x) is not supported by any reasons. In Baee Jetta v. Hurihhai (y) the
daughter-in-law vs^as preferred to a distant cousin of the husband as the person
who would be his nearest heir. Reference is made to Bhugwandeen Doohey v.
Myna Baee (z), Musst. Thakoor Dayhee v. Rai Balack Ram et al. (a), and
Lakshmihai v. Jayram et al. (b). In the Viramitrodaya, Transl., p. 244, the
(w) 8 Bom. H. C. R. 244 0. C. J.
(x) 4 M. H. C. R. 180.
(y) S. A. No. 304 of 1871, Bom. H. C. P. J. F. for 1872, No. 38.
iz) 9 Cal. W. R. 23 P. C. ; S. C. 11 M. I. A. 487.
(a) 10 Cal. W. R. 3 P. C.
(b) 6 Bom. H. C. R. 152.
L
496
HINDU LAW.
[BOOK I
daughter-in-law's right is denied. Balambhatta, on the other hand, as we
have seen (c) places the daughter-in-law next to the paternal grandmother.
2. See Dig. Vyav., Chap. II., sec. 14, I. A. 2, Q. 1, Eeraarks, p. 469 et seq ;
and Lulloohhoy v. Cassibai, L. K. 7 I. A. 212.
II. ^.— THE HUSBAND'S BEOTHEE'S SON.
Q. 1. — There were two uterine brothers. The elder brother had
a son, but he died while his father was alive. The younger brother
had a son. The brothers died. The elder brother's widow also
died. The widow of the elder brother's son, who died during the
lifetime of his father, and the son of the younger brother, have
applied to be recognised as heirs. The question is: Which of
them is the heir of the widow of the elder brother?
A. — The widow of the elder brother became heir of her husband
on his death. From this the brothers seem to have been sepa-
rated. The right of inheritance would therefore devolve upon her
daughter or other relation. She has, however, no daughter or
other near relation, and as the son died during the lifetime of the
father, the right of inheritance has not been through him trans-
mitted to the daughter-in-law. It will therefore belong to the
nephew.
Surat, October 27th, 1857.
The following is a genealogical table illustrative of the
question :
Father.
Wife.
The deceased whose
heir is to be ascer-
tained.
Elder son.
Younger son.
Wife.
Son.
Wife.
Son.
Died during Claimant,
the lifetime
of his father.
Claimant.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2*) f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1.)
Kemark. — This is aparibhashika inherited from the husband. The answer
would be correct according to the Mayukha, according to which the property in
(c) See above, p. 119.
VYAV. CH. IV. B. S. 6.] husband's brother's WIDOW. 497
question, having been acquired by inheritance from the husband, would
descend in the first place to the widow's husband's heirs, as being for this
purpose her own heirs. See above, pp. 135, 138, 262, 316; and the Introductory
Remarks to this section; Borr. 127; Stokes's H. L. B. 105.
Q. 2. — A man named Bhukhan had two sons named Manik-
chand and Mayarama. They effected a partition of their father's
property, and wrote a deed of separation. When Mayarama died,
his son Dadabhai inherited his father's property. Afterwards
Dadabhai died, and was succeeded by his widow Jamna. She
died without male issue. Dadabhai 's sister Ganga and her two
sons, named Premananda and Kahdasa, have appHed for a certifi-
cate declaring them to be the heirs of Jamna. Jetta, son of
Manik and cousin of Dadabhai, has also applied for a similar
certificate. The question therefore is whether the former or the
latter are the heirs?
A. — The two brothers mentioned in the question were separate.
The Sastra declares the following rule of succession in case of the
death of a separated brother. Each of the undermentioned rela-
tions succeeds in the absence of the next previously mentioned :
Widow, daughter, son of a daughter, parents, the uterine brothers,
nephew, stepbrother, son of a stepbrother, and members of the
same kin or Gotra, and among them the first is sister. Applying
this rule to the case, it appears that Ganga and her two sons are
the heirs.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 140, 1. 6; (3) p. 140,
1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435); (4*) Mit. Vyav., f. 61,
p. 1, 1. 14 (see Chap. IV. B., sec. 6 I., Q. 1, p. 487).
Eemark. — The kind of property in dispute not being stated, the Sastri has
treated the case as one of a succession to a male's property, and followed the
Mayukha. Her heir is, according to the Mitakshara, Jetta, the son of Manik,
since he is the deceased's husband's uncle's child — that is, a Gotraja-Sapinda.
(See Introductory Eemarks to this section, para. 4.)
II. /7.— HUSBAND'S BEOTHEE'S WIDOW.
Q. 1. — A widow died. The surviving relations are a widow of
her brother-in-law and a son of a sister of her husband. Which
of these is the heir of the widow?
A. — The husband's sister's son is a " Sapinda," but not a
" Gotraja " relation, and he is not, consequently, an heir. The
H.L. 32
498 HINDU LAW. [BOOK I.
widow of the brother-in-law is both the ** Sapinda " and
" Gotraja " relation, and she is therefore the heir.
Ahmedabad, December SOth, 1853.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 58, p. 2, 1. 16; (3*i
f. 61, p. 1, 1. 14 (see Chap. IV. B., sec. 6 I., Q. 1, p. 487).
II. f.— HUSBAND'S PATEENAL UNCLE'S SON.
Q. 1. — Can a cousin of a woman's husband be her heir?
^.— Yes.
Poona, September 10th, 1852.
Authorities.— (1) Vyav. May., p. 159, 1. 2 (Stokes's H. L. B. 105); (2*)
Mit. Vyav., f. 61, p. 1, 1. 14 (Col. Mit. 368; Stokes's H. L. B. 461 (see
Chap. IV. B.,sec. 6 I., Q. 1, p. 487).
Q. 2. — A man received his share of the ancestral property and
separated; afterwards he died. His widow inherited his property.
She also subsequently died. There is a son of her husband's
sister and a cousin of her husband. Which of these is the heir?
A. — The son of the sister of the woman's husband is the nearer
relation of the two mentioned in the question, and in the order of
heirs which is laid down in the Sastra a sister's son becomes heir
in the absence of a sister. He should therefore be considered the
heir entitled to all the movable and immovable property of the
deceased, except the Vatan.
Surat, September 15th, 1849.
Authorities.— (1) Vyav. May., p. 138, 1.8; (2) Manu IX. 187 (see Auth. 5) ;
(3) Daya Krama Sangraha; (4) Nirnayadipika ; (5*) Vyav. May., p. 140, 1. 1
(see Chap. II., sec. 14, I. A. 1, Q. 1); (6*) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1).
Eemarks.— 1. See Dig. Vyav., Chap. H., sec. 14, I. B, h. 2, Q. 1, p. 451;
sec. 15, B. I. (1), Q. 1, p. 463.
2. The Sastri has taken this case for a question regarding the succession to
a childless man's property, and decided it according to the Bengal law. See
Col., Daya Bhaga, 225, note. (Stokes's H. L. B. 353.) According to the
Mitakshara and the Mayukha, the husband's cousin is the heir (see Intro-
ductory Remarks to this section, and Chap. II., sec. 15 B. I. (1), p. 462.
VYAV. CH. IV. B. S. 6. ] husband's PAT. UNCLE's SON. 499
Q. 3. — Who is entitled to inherit from a deceased woman of
Kunabi caste, her husband's sister, or a cousin who was separate
from her husband, or the husband of her deceased daughter?
A. — The sister and the cousin of her husband are near relations
of the deceased woman, and they both appear to have equal
claims to the property of the deceased. The sister, though very
near to the deceased, has gone into another family by her
marriage. The cousin is a " Sapinda " relation of the deceased's
family. The property should therefore be equally divided between
the two. There is nothing in the Sastras which is favourable to
the claim of the son-in-law.
Ah^nednuggur, July 27th, 1847.
Authorities. — (1) Vyav. Ma5^, p. 134, 1. 4; (2) p. 140, 1. 1 (see Chap. II.,
sec. 14 I. A. 1, Q. 1); (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 I., Q. 1, p. 487).
Eemark. — The husband's cousin alone inherits according to the Mitakshara,
as he is a Sagotra Sapinda. The Sastri regards the devolution of the property
as governed by the rules applicable to the deceased husband's estate; but,
admitting the sister as a gotraja, he should have preferred her to the cousin.
(Vyav. May., Chap. IV., sec. 8, p. 19, Borr. 106; Stokes's H. L. B. 89.)
Q. 4. — A woman died. Her relations are her husband's cousin,
another cousin's five sons, and her husband's brother's widow.
The last-mentioned died. One of the five sons died, leaving a son.
How will the several heirs divide the property ?
A. — The property should be divided into seven equal shares, of
which each of the heirs should take one, and the seventh share
of the woman's husband's sister-in-law should be again equally
divided among the six heirs.
Khandesh, March 22nd, 1848.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2*) p. 140, 1. 1 (see Chap. II.,
sec. 14, I. A. 1, Q. "^1, p. 463; (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1, p. 487).
Eemark. — The husband's paternal uncle's son alone inherits as the nearest
Sagotra Sapinda relation of the deceased's husband. He is related to him in
the fifth and the paternal uncle's grandson in the sixth degree, according to
the inclusive mode of reckoning followed by the Hindus. The succession to the
second brother's widow, she having survived to inherit, would be the same.
498 HINDU LAW. [BOOK I.
widow of the brother-in-law is both the " Sapinda " and
** Gotraja " relation, and she is therefore the heir.
Ahmedabad, December 30th, 1853.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 58, p. 2, 1. 16; (3*j
f. 61, p. 1, 1. 14 (see Chap. IV. B., sec. 6 I., Q. 1, p. 487).
II. f.— HUSBAND'S PATEENAL UNCLE'S SON.
Q. 1. — Can a cousin of a woman's husband be her heir?
^.— Yes.
Poona, September 10th, 1852.
Authorities.— (1) Vyav. May., p. 159, 1. 2 (Stokes's H. L. B. 105); (2*)
Mit. Vyav., f. 61, p. 1, 1. 14 (Col. Mit. 368; Stokes's H. L. B. 461 (see
Chap. IV. B.,-8ec. 6 I., Q. 1, p. 487).
Q. 2. — A man received his share of the ancestral property and
separated; afterwards he died. His widow inherited his property.
She also subsequently died. There is a son of her husband's
sister and a cousin of her husband. Which of these is the heir?
A. — The son of the sister of the woman's husband is the nearer
relation of the two mentioned in the question, and in the order of
heirs which is laid down in the Sastra a sister's son becomes heir
in the absence of a sister. He should therefore be considered the
heir entitled to all the movable and immovable property of the
deceased, except the Vatan.
Surat, September 15th, 1849.
Authorities.— (1) Vyav. May., p. 138, 1.8; (2) Manu IX. 187 (see Auth. 5) ;
(3) Daya Krama Sangraha ; (4) Nirnayadipika ; (5*) Vyav. May., p. 140, 1. 1
(see Chap. II., sec. 14, I. A. 1, Q. 1); (6*) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1).
Eemarks.— 1. See Dig. Vyav., Chap. H., sec. 14, I. B. b. 2, Q. 1, p. 451;
sec. 15, B. I. (1), Q. 1, p. 463.
2. The Sastri has taken this case for a question regarding the succession to
a childless man's property, and decided it according to the Bengal law. See
Col., Daya Bhaga, 225, note. (Stokes's H. L. B. 353.) According to the
Mitakshara and the Mayukha, the husband's cousin is the heir (see Intro-
ductory Eemarks to this section, and Chap. II., sec. 15 B. I. (1), p. 462.
VYAv. CH. IV. B. s. 6. ] husband's pat. uncle's son. 499
Q. 3. — Who is entitled to inherit from a deceased woman of
Kunabi caste, her husband's sister, or a cousin who was separate
from her husband, or the husband of her deceased daughter?
A . — The sister and the cousin of her husband are near relations
of the deceased woman, and they both appear to have equal
claims to the property of the deceased. The sister, though very
near to the deceased, has gone into another family by her
marriage. The cousin is a " Sapinda " relation of the deceased's
family. The property should therefore be equally divided between
the two. There is nothing in the Sastras which is favourable to
the claim of the son-in-law.
Ahrnednuggur, July 27th, 1847.
Authorities. — (1) Vyav. May., p. 134, 1. 4; (2) p. 140, 1. 1 (see Chap. II.,
sec. 14 I. A. 1, Q. 1); (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 I., Q. 1, p. 487).
Kemark. — The husband's cousin alone inherits according to the Mitakshara,
as he is a Sagotra Sapinda. The Sastri regards the devolution of the property
as governed by the rules applicable to the deceased husband's estate; but,
admitting the sister as a gotraja, he should have preferred her to the cousin.
(Vyav. May., Chap. IV., sec. 8, p. 19, Borr. 106; Stokes's H. L. B. 89.)
Q. 4. — A woman died. Her relations are her husband's cousin,
another cousin's five sons, and her husband's brother's widow.
The last-mentioned died. One of the five sons died, leaving a son.
How will the several heirs divide the property ?
A. — The property should be divided into seven equal shares, of
which each of the heirs should take one, and the seventh share
of the woman's husband's sister-in-law should be again equally
divided among the six heirs.
Khandesh, March 22nd, 1848.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2*) p. 140, 1. 1 (see Chap. II.,
sec. 14, I. A. 1, Q. "^1, p. 463; (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1, p. 487).
Kemark. — The husband's paternal uncle's son alone inherits as the nearest
Sagotra Sapinda relation of the deceased's husband. He is related to him in
the fifth and the paternal uncle's grandson in the sixth degree, according to
the inclusive mode of reckoning followed by the Hindus. The succession to the
second brother's widow, she having survived to inherit, would be the same.
500 HINDU LAW. [BOOK I.
II. f.— THE HUSBAND'S PATEENAL UNCLE'S
GKEAT-GEANDSON.
Q. 1. — The right of heirship to a deceased woman is claimed by
her son-in-law and her husband's cousin's grandson. Which of
these two is the legal heir?
A. — The woman's husband's cousin's grandson.
Ahmednuggur, December ISth, 1847.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 161, 1. 7; (3) p. 83, 1. 3;
(4) p. 142, 1 .8; (5) p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435);
(6*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV., B., sec. 6 I., Q. 1, p. 487).
II. fe.— THE HUSBAND'S MOEE DISTANT KINSMEN.
Q. 1. — A man named Sankaraji had two sons. One of them
was called Bhaisha and the other Dayalji. Bhaisha's son was
called Pitambar, and Dayalji 's son Eatanji. Pitambar's son was
called Trikam, and Eatanji 's son Purushottam. The wife of
Purushottam, called Divali, died without issue. Pitambar's son
Trikam has applied for a certificate of heirship. One Narottam
Easikadas objects to the claim of Trikam on the ground that
Shama Bai, the wife of Eatanji, was the sister of Easikadas 's
grandfather, that Purushott<am was her son, that Divali, the wife
of Purushottam, made a will, which Easikadas has produced,
that it authorises him to take Divali 's house and movable property
in consideration of his having given her maintenance and promised
to perform the funeral rites after her death, and that the sons of
Sankaraji had separated. The questions are : Whether the said
Trikam should be furnished with a certificate ; and whether Divali
had right to transfer her property as she had done ?
A. — If there is no daughter or son of a daughter, or other near
relation of Divali the applicant Trikam must be considered a
relation entitled to inherit the property of the deceased. The will
does not appear to have been made under the pressure of any
necessity. When Divali was possessed of the whole estat^e of her
husband she had no reason to receive maintenance from another
man. The right of performing the funeral rites belongs to the
VYAV. CH. IV. B. S. 6.] husband's REMOTE KINSMEN.
501
relations of her husband. A will on her part was not, therefore,
necessary, and she could not have made it conformably to the law.
Sural, November 12th, 1847.
The following genealogical t^ble will illustrate the question :
Sankaraji.
j
_»^
Bhaisha.
Dayalji.
Pitambar.
1
Katanji.
1
Trikam.
Purushottam.
Name not cited
in the case.
Shama Bai.
Grandfather.
Applicant.
Divali.
The deceased.
1
Father.
1
Easikadas.
Narottam.
Objector.
Authorities.— (1) Viram, f. 194, p. 1, 1. 2; (2) Vyav. May., p. 134, 1. 4;
(3) Jimutavahana Dayabh. 49; (4*) Mit. Vyav., f. 61, p. 1, 1. 14 (see
Chap. IV. B., sec. 6 I., Q. 1, p. 487).
Remark.— See above, pp. 219, 280, 284, 294; Chap. II., sec. 6 A., Q. 6,
p. 374; and Book II., Chap. I., sec. 2, Q. 8, Remarks.
Q. 2. — A woman, having first inherited the property of her
husband, died. The heirship to her is disputed between her
husband's sister's son and some cousins three or four times
removed from her husband. The question is : Which of these is
the heir?
A. — As the husband of the deceased woman had separated from
the other members of his family, his sister's son is the heir. The
504 HINDU LAW. [BOOK I.
Asura or other two forms, the heirs to the woman's property as expounded
above (e) are thus pointed out by Brihaspati : ' The mother's sister, the
maternal uncle's wife, the paternal uncle's wife, the father's sister, the mother-
in-law and the wife of an elder brother, are pronounced similar to mothers.
If they leave no sons born in lawful wedlock, nor daughter's son, nor his son,
then the sister's son and the rest shall take the property.' " (Borradaile,
p. 129; Stokes's H. L. B. 106.)
Ee.mark. — According to the Mitakshara the husband's sister inherits in every
case, as his Sapinda relation.
III. c— THE HUSBAND'S SISTER'S SON.
Q. 1. — A man died, and then his wife died. The man's
'* Bhacha," or sister's son, applied to be put in possession of his
property as heir, but he subsequently died. His son has set up a
claim to be his heir, and has produced a deed alleged to have
been passed to his father by the first deceased, granting his land,
&c., to him. There is a distant relation, seven degrees removed
from the deceased. He claims to be the heir. There are also two
daughters of the deceased, but they have rehnquished their claim
in favour of the distant relation.
A. — As it cannot be ascertained whether the distant kinsman
is within seven degrees or not, he cannot be recognised as heir.
The deceased sister's son applied for a certificate, but he died.
His son has set up a claim, and if there is no other nearer, and
Gotraja, relation, he may be considered the heir.
Ahmedabad, January 10th, 1851.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 140, 1.1 (see Chap. II.,
sec. 14, I. A. 1, Q. 1); (3*) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 1., Q. 1, £. 487).
Eemark. — See Introductory Eemarks to this section, para. 4.
Q. 2. — A deceased woman has left her brother's son and her
husband's sister's son. Which of these will be the heir?
A. — Her brother's son appears to be the nearest heir. This
opinion is founded upon an inference drawn from the order of
relatives who are authorised to perform the funeral ceremonies
(e) That is, the kindred provided for by special texts. See Vyav. May.,
Chap. IV., sec. 10, p. 24 (Stokes's H. L. B. 104).
VYAV. CH. IV. B. s. 7.] widow's sapindas. ' 505
of a deceased woman. This order commences with son, and con-
tinues by mentioning grandson, husband, daughter, daughter's
son, husband's brother, husband's, brother's son, the daughter-in-
law, father, brother, and brother's son.
Dharwar, June 13t/i, 1853.
Authorities. — (1) Dharmasindhu III., f. 6, p. 1, 1. 10 (see sec. 7, Intro-
ductory Eemark, Note); (2) Mit. Vyav., f. 61, p. 1, 1. 14 (see Chap. IV. B.,
sec. 6 I., Q. 1).
Kemark. — According to the Mitakshara, the husband's sister's son would
inherit as the deceased's husband's Sapinda (see Chap. II., sec. 15 B. I. (1),
Q. 1, p. 462. According to the Vyav. May., there would be a difference
according to the source of the property (see above, b, Q. 1).
Q. 3. — A man died, and his wife also died after him. The
man's sister's son, who lived with the wife, performed the funeral
rites for her. Will he or her brother be the heir?
A. — The man's sister's son will succeed to the property, pro-
vided it has been bequeathed to him. If the deceased has left no
will to that effect, her brother will be her heir by law. He should
take the property and perform the funeral rites. In his absence
the deceased's nephew will be the heir.
Ahmednuggur, June 22nd, 1848.
Authorities.— (1) Vyav. May., p. 159, I. 3 f . ; (2*) Mit. Vyav., f. 61, p. 1,
1. 14 (see Chap. IV. B., sec. 6 I., Q. 1, p. 487).
Eemark. — See the preceding case (/).
B. SECTION 7.— THE WIDOW'S SAPINDAS.
Introductory Eemarks.
1. The question whether, on failure of all relations on the
husband's side, the widow's father's family is entitled to inherit
her property if she had been married according to one of the
approved rites, is still more difficult to decide than those regarding
the husband's Sapindas.
The Mitakshara is silent on this point ; it mentions none of the
widow's Sapindas as entitled to inherit. The Mayukha names a
(/) The husband's family extends to the husband's paternal aunt's son,
according to Hurreemohun Shaha v. Sonatum Shaha, I. L. B. 1 Cal. 275—
that is, to the furthest specified bandhu of the husband.
506 HINDU LAW. [BOOK I.
few (six) among the heirs wlio succeed to Stridhana proper on
failure of the husband, but before the husband's Sapindas (g).
2. Though the leading authorities thus seem to give no
encouragement to the doctrine that the widow's Sapindas inherit
after those of the husband, the Sastris nevertheless declare unani-
mously that such is the case. They quote as authorities chiefly
Mayukha, p. 140, 1. 1 (a) and p. 159, 1. 5 (b), where, in both
passages, the verse (Manu IX. 187, quoted in full in Chap. II.,
sec. 14 I. B. b. 1, Q. 1, p. 451) " To the nearest Sapinda the
inheritance next belongs," &c., is quoted (see Mit., Chap. II.,
sec. 3, p. 5, note.
In the Manava-dharmasastra this verse refers to the succession
to a separate male's estate, and the Mayukha quot-es it (p. 140,
1. 1) (h), in this sense, in order to prove the right of the sister to
inherit her brother's property. But in the Mayukha, p. 159,
1. 5 (/), it is applied also to the succession to a woman's property,
and Nilakantha uses it in order to prove that the Stridhana proper
of a childless widow, who was married according to an approved
rite, goes not to the husband's nearest kinsmen, as the Mitakshara
states, but to her own nearest Sapindas in the husband's family.
Hence it is evident that Nilakantha took the above-mentioned
verse of Manu to be a general maxim applicable to all cases of
inheritance — a proceeding perfectly in harmony with the principles
of the Mimamsa, which rules the interpretation of the Smritis (k).
The Sastris, therefore, by applying it to the case of a widow whose
husband's family is extinct, have only followed the example of
Nilakantha, and in no wise departed from the general rules of
interpretation. The chief objection which could be raised against
the correctness of their view would be that the list of heirs given
in the Mit. and May. must be considered exhaustive.
3. Before touching upon this latter point it will be advisable to
take into consideration some other circumstances which make it
probable that the widow's own Sapindas inherit on failure of the
husband's kinsmen.
ig) Vyav. May., Chap. IV., sec. 10, cl. 30, Borradaile ; and Introductory
Remarks to the preceding section, cl. 3 (see Dig. Vyav., Chap. 11., sec. 15,
Introductory Remarks.
(h) Chap. IV., sec. 8, p. 19 (Borr., p. 106; Stokes's H. L. B., p. 89).
(t) Chap. IV., sec. 10, p. 28 (Borr., p. 128; Stokes's H. L. B., p. 105).
(k) Compare the language of the Privy Council in C. Chintamun Singh v.
Musst. Nowlukho Konwari, L. R. 2 I. A., at p. 272; Vyav. Mayukha,
Chap. IV., sec. 8, pi. 11; and Mitakshara, Chap. I., sec. 2, pi. 4.
VYAV. CH. IV. B. s. 7.] widow's sapindas. 507
For though a woman by marriage loses her place in her father's
family, and many of the rights and duties which her parents and
her kinsmen in her father's family possess over her or have to
fulfil towards her are suspended, it appears that, on extinction of
the husband's family, these same rights and duties revive. Thus
the right or duty of guardianship over a female is vested after
marriage in the husband, his sons, and his Sapindas succes-
sively (/.). But if the husband's family becomes extinct it reverts
to her parents and their kinsmen, not to the king, who takes the
place of guardian only on failure of both families (m).
In a similar manner the duty of performing the last rites and
funeral oblations for a widow falls first on the husband's kinsmen,
on failure of them on the widow's own relations, and lastly on the
king (n). As, then, the widow's kinsmen would, but for her
marriage, undoubtedly have the right to inherit her estate on
account of their blood relationship, it seems not unreasonable to
suppose that this right may revive on failure of the persons who
barred it.
The objection which might be raised against this view, that the
silence of the Mitakshara and of the Mayukha regarding the rights
of the widow's blood relations is equivalent to a denial of these
rights, cannot be sustained, since the lists of heirs given in the
(l) See above, sec. X., On Maintenance, at pp. 225, 239 ss. Where a person
claims the custody of a female minor on the ground that she is his wife, and
such minor denies that she is so. Act IX. of 1861 does not apply. The plaintiff
must establish his right by a suit, Balmukund v. Janki, I. L. K. 3 All. 403
(see Act XX. of 1864, sec. 31), and as to the representation of the minor in
suits Manokchand v. Nathu Purshotam, Bom. H. C. P. J. for 1878, p. 204;
Jadow Mulji v. Chagun Raichund, I. L. E. 5 Bom. 306.
(m) See Viramitrodaya, quoted in Chap. II., sec. 6a, Q. 6, and Mit. Achara,
f. 12, p. 1, 1. 6 : For it is declared " On failure of relations on both sides
(the husband's and the parents') the king becomes the supporter and master
of a female." So Narada, Part II., Chap. XIII. 29.
In O. S. 894 of 1870, in the High Court, Bombay, on its original side, a
widowed sister's maintenance was admitted by brothers as a charge on the
ancestral estate.
(n) Dharmasindhu III. Uttarardha, f. 6, p. 1, 1. 10 :
" (The persons authorised to perform the funeral oblations) for a married
female are, on failure of her son, the son of a rival wife; on failure of him,
her grandsons and great-grandsons in the male line; on failure of them, the
husband; on failure of him, the daughter; on failure of her, the daughter's
son; on failure of him, the husband's brother; on failure of him, the husband's
brother's son; on failure of him, the daughter-in-law; on failure of her, the
father; on failure of the father, the brother; on failure of him, the brother's
son, and the other (Sapindas) who have been mentioned before."
508 HINDU LAW. [BOOK I.
two law books are not exhaustive. For neither the persons con-
nected by spiritual ties with the widow — that is, the husband's
Acharya and pupil — nor the Brahmanical community in the case
of a Brahman widow, nor the king in the case of other castes,
are mentioned as heirs, though their eventual rights to the
inheritance would not be disputed by any Hindu lawyer.
4. If, therefore, the right of the widow's own blood relations
revives on failure of the husband's Sapindas, it seems natural to
allow them to succeed in the same order as they would have done
before her marriage, and to place the mother first, next the
father, after him the brothers, and the rest of the Sapindas,
according to the nearness of their relationship (o) (See Mitakshara,
Chap. II., sec. 3, p. 5, note; Stokes's H. L. B. 443).
In conformity with this principle, and according to the maxim
that Sagotras inherit before the Bhinnagotra- Sapindas (p), the
Questions belonging to the following section have been arranged
thus :
I. Sapindas in general.
II. Sagotra- Sapindas: a, mother; h, brother, &c.
III. Bhinnagotra- Sapindas.
B. SECTION 7.— I. SAPINDAS IN GENEEAL.
Q. 1. — A daughter of a Paradesi Brahman and her husband
lived with him. The husband subsequently ran away. The father
had given some ornaments to his daughter. Afterwards both the
father and his daughter died. There is neither the husband nor a
son of the daughter, and the question is whether the separated
relatives of her father should be considered her heirs.
A. — The husband and his relatives are the heirs to the property
of a woman who has neither a son nor a daughter. In the absence
of the husband and his relatives the woman's mother and father,
or their relatives, are the heirs. The father's relatives mentioned
in the question are therefore the heirs of the deceased woman.
Khandesh, September 9th, 1851.
Authorities.— (1) Mit. Achara, f. 12, p. 1, 1. 4; (2) Mit. Vyav., f. 60, p. 2,
1. 16; (3) f. 61, p. 1, 1. 12; (4) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14,
I. A. 1, Q. 1, p. 436).
(o) See Chap. IV. A., pp. 469-70 ss.
(p) See Introductory Kemarks, Chap. IV. B., sec. 6, para. 4, p. 486.
VYAV. CH. IV. B. S. 7.] MOTHER. 509
Q. 2. — When there are two " Sapinda " kinsmen (q) of a woman
having equal relationship to her how will they inherit the pro-
perty ?
A. — Each of them should receive an equal share.
Dharwar, 1846.
Authority.— *Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1.
p. 435).
II. — Sagotra Sapindas.
a.— THE MOTHER.
Q. 1. — A woman died. Her parents applied for a certificate of
heirship. Her four separated nephews, of whom the eldest is the
guardian of the three under age, prefen-ed a similar application.
Subsequently the parents suborned the eldest nephew. He now
states that he cannot prove his relationship to the deceased, and
that he is a distant relation. He further admits that the deceased's-
fathei^ is her heir. Can this admission affect the rights of the
minors under his protection?
A. — The nephews are not heirs of the deceased. Of the parents,
who have applied for recognition as the heirs of the deceased, the
mother must be considered the first heir. The father will be the
heir only in the absence of the mother. There can be no objection
to the withdrawal of the claim advanced by the eldest nephew on
behalf of himself and his younger brothers. He and the parents,
may have come to an understanding about the matter.
Ahmednuggur, April 11th, 1851.
Authorities.— (1) Vyav. May., p. 159, 1. 5 (see Auth. 3); (2*) p. 140, 1. 1
(see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435) ; (3) Mit. Vyav., f. 47, p. 2, 1. 15.
[Note. — The kind of property in dispute is not stated.]
iq) This word means the relations of the same blood, and is, in the legal
phraseology of the Hindus, limited to those who can trace their descent to one
common ancestor so far as the seventh degree, either through males or females.
(Sastri's Bern.)
510 HINDU LAW. [BOOK I.
II. b.— BROTHEK.
Q. 1. — When there is no relation of a deceased woman on the
side of her husband, who will be his heir, her two uterine brothers
or her sister's son?
A. — The uterine brothers.
Poona, February 29th, 1848.
Authorities.— (1) Vyav. May., p. 159, 1. 3; (2) p. 159, 1. 5; (3) p. 140, 1.1
(see Chap. II., sec. 14, I. A. 1, Q. 1).
Eemarks, — In Hurrymohun Shaha v. Shonatun Shaha (r) (Bengal law), there
is a case in which a deceased woman's brother was declared heir in preference
to her husband to property presented to her by the husband's paternal aunt's
son. This would accord with Vyav. May., Chap. IV., sec. 10, p. 13, 27, but
not with the Mitakshara, Chap. II., sec. 11, pp. 2, 11.
II. c— HALF-BROTHER.
Q. 1. — Can the stepbrother of a deceased woman be her heir?
A. — When there is no one of the family of the husband of the
deceased woman, her parents will be her heirs. If the parents
are dead, anyone belonging to the family of the parents will be
her heir. The half-brother, therefore, is her legal heir.
Dharwar, September 23rd, 1851.
Authorities.— (1) Vyav. May., p. 159, 1 3; (2) p. 140, 1. 7; (3*) p. 140,
1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435).
Q. 2. — A woman died. Can a half-brother be her heir?
A. — According to the Mitakshara and Dharmabdhi, when there
are neither children nor husband of a woman the Sapinda relations
of her husband become her heirs. When there are no Sapinda
relations, the woman's father and his relations become heirs. If
there are no relations of the husband, her half-brother will be her
heir.
Dharwar, September 2Srd, 1851.
Authorities.— (1) Vyav. May., p. 159, 1. 3 (see Auth. 3); (2) p. 134, 1. 4;
(3*) Mit. Vyav., f. 61, p. 1, 1. 12 (see Chap. IV. B., sec. 6 I., Q. 1, p. 487).
(r) I. L. E. 1 Cal. 276.
VYAV. CH. IV. B. S. 7.] half-brother's SON. 511
II. d.— BKOTHER'S SON.
Q. 1. — Can tlie sons of a full brother of a deceased woman be
her heirs ?
^.— Yes.
Ahmednuggur, June 1th, 1853.
Authorities.— (1) Vyav. May., p. 159, 1. 3; (2) p. 169, 1. 5; (3) p. 140,
1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435).
Q. 2. — A man granted a piece of land to his widowed daughter
for her maintenance. The daughter afterwards died. There is
none of her kin, but there is a son of her uterine brother. The
question is whether he is the heir?
A. — If there is none of the deceased woman's, kin, her uterine
brother's son is her heir.
Ahmedabad, February 15th, 1841.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 140, 1. 1 (see Chap. II.,
sec. 14, I. A. 1, Q. 1, p. 435).
II. e.— HALF-BROTHER'S SON.
Q. 1. — A man died, and his movable as well as immovable
property passed into the hands of his wife. She had no children.
She had allowed her mother, half-brother, and elder sister to live
with her. About four years afterwards the widow died. There
was no member of the family of her husband then living. Her
property fell into the possession of her sister. Afterwards her
mother, stepmother, and sister died. The sister's nephew and
the son of the half-brother are now alive. Which of these is the
heir of the deceased woman?
A. — The nephew of the woman's sister (s) cannot inherit the
property. The son of the half-brother is entitled to it.
Ahmedabad, May Slst, 1845.
Authorities.— (1) Mit. Vyav., f. 58, p. 2, 1. 16; (2) Vyav. May., p. 140,
1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435).
1(s) This must apparently mean a son of another sister, nephew therefore of
the deceased.
i
512 HINDU LAW. [BOOK I.
II. /.— PATEKNAL UNCLE.
Q. 1. — A widow died leaving two relatives, a Bhacha (a
woman's brother's or sister's son, and a man's sister's son), and
her father's brother. The question is : Which of these is the
heir?
A. — Her father's brother is the heir.
Ahmedahad, February 17th, 1858.
Authorities. — (1) Vyav. May., p. 134, 1. 4; (2) p. 140, 1. 1 (see Chap. II.,
sec. 14, I. A. 1, Q. 1, p. 435).
Bemark. — But only if the term Bhacha here means sister's son, as a brother's
son is a nearer Sapinda than the father's brother.
II. ^.— THE PATEBNAL UNCLE'S SON.
Q. 1. — A woman of the Sudra caste has no other heir than a
cousin. Her husband is dead. Can the cousin be her heir? If
there are three cousins can one of them who has applied to be
recognised as heir be considered her heir?
A. — All the three cousins have equal right to be the heirs of the
woman.
Ahmednuggur, January 31st, 1854.
Authorities.— (1) Vyav. May., p. 159, 1. 3; (2) p. 159, 1. 5; (3) p. 140,
1. 1 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435).
HI.— BHINNAGOTRA SAPINDAS OF THE DECEASED'S
FAMILY.
a.— THE SISTER'S SON.
Q. 1. — Can a man inherit the property from his mother's
deceased sist^er?
A. — If there is no other heir he can.
Dharwar, January 2Qth, 1850.
Authorities. — (1) Vyav. May., p. 160, 1. 4 (see Chap. IV. B., sec. 6, III. b,
Q. 1); (2*) p. 140, 1. 1 (see Chap. H., sec. 14, I. A. 1, Q. 1, p. 435).
Eemark. — A divided brother is preferred, notwithstanding the sister's son
was acknowledged and recognised as the adopted son of the deceased brother,
but without ceremonies of adoption {t).
(t) Bhagvan v. Kala Shankar, 1. L. K. 1 Bom. 641.
VYAV., CH. IV. B, S. 7.] sister's DAUGHTER. 513
Q. 2. — A Kunabi woman has died. Her sister's son survives.
The deceased made no gift in his favour. Can he be her heir
according to the Sastra ?
A. — It appears that the property left by the deceased is her
Stridhana, and that her sister's son is entitled to it, even though
there be no will left to that effect.
Ahmednuggur, February 22nd, 1847.
Authorities.— (1) Vyav. May., p. 160, 1. 4 (see Chap. IV. B., sec. 6, III. 6,
Q. 1); (2) p. 159, 1. 5 (see Chap. II., sec. 14, I. A. 1, Q. 1, p. 435); (3*)
p. 159, 1. 3.
III. b.— MATEKNAL UNCLE'S SON.
Q. 1. — A widow died without issue. Her mother's brother's son
has applied to be put in possession of her property, consisting of
some land, &c. The deceased widow had obtained the property
from her mother's brother, and there are no nearer relations of the
deceased. Should the applicant, under these circumstances, be
put in possession of the property ?
A. — There is no nearer relation of the deceased; the applicant,
though of a different Gotra, is a Sapinda relation. He is therefore
the legal heir of the deceased.
Ahmedabad, June SOth, 1851.
Authorities. — (1) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1, p. 435); (2) p. 134, 1. 4; (3) p. 140, 1. 6.
III. c— THE SISTEE'S DAUGHTEE.
Q. 1. — Is a sister's daughter the heir to a deceased woman,
there being being no near relative ?
^.— Yes.
Dhanvar, June 11th, 1853.
Authority. — Vyav. May., p. 143, 1. 1.
H.L.
33
514 HINDU LAW. [book I
Q. 2. — A man died, leaving two daughters. One of them died,
leaving a daughter. The other also died afterwards. The question
is whether the daughter of the first deceased daughter can inherit
the immovable property of the deceased?
A. — The daughter who died last has left no children. Her
sister's daughter cannot claim the right of inheritance. The order
of heirs laid down in the Sastra does not mention a daughter of a
sister. That order states that, when there are no near relatives
to be found, the Guru and others become heirs. A Brahman's
property is sacred, and the Eaja or Government of any country is
prohibited from taking it under any pretence whatever.
Surat, March 2Srd, 1850.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 (Col., Mit., 324; Stokes's
H. L. B. 427); (2) f. 59, p. 1, 1. 9; (3) f. 45, p. 2, 1. 8.
Eemarks. — 1. The Sastri mistakes the case for one regarding the succession
to a man's property.
2. For the correct answer see the preceding case.
Q. 3. — Two brothers effected a partition of their landed pro-
perty; afterwards one of them died. The son of the deceased
held his father's share for some time, and died. His sister suc-
ceeded him, and after having remained for some time in the
possession of the share, died. The question is whether the
daughter of the sister or the son of the sister-in-law of the father
of the deceased is the heir?
A. — The uterine sister who inherited the property of the uterine
brother died. The rights of inheritance will now descend to the
daughter of the other sister.
Surat, December 1th, 1846.
Authority. — *Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1, p. 436).
Q. 4. — Who will inherit from a deceased woman, her sister's
daughter or her sister's son's widow?
A. — The sister's daughter is entitled to inherit. It is to be
VYAV., CH. IV. B, S. 7] sister's DAUGHTER.
61i
remarked that when there are two heirs, a daughter and a son, to
Stridhana, the daughter has the priority of claim.
Ahmednuggur, August 13th, 1847.
Authority. — Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14, I. A. 1,
Q. 1, p. 435).
Eemabe. — The preference of daughters to sons only takes place in cases
where they inherit from their mother. The right of the deceased's niece rests
on her proximity.
516 HINDU LAW. [BOOK
CHAPTEE V.
CASES OF INHERITANCE DECIDED BY THE CUSTOMS
OF CASTES OR SECTS (a).
SECTION 1.— HEIES TO A GOSAVI.
Introductory Remarks.
The Brahmanical law, Mr. Ellis points out (ib), never obtained
more than a qualified dominion in Southern India. In the Bom-
bay Presidency the collections of Mr. Borradaile and Mr. Steele
(a) An instance of the flexibility of customary law, while yet unembodied in
decisions formally recorded, is to be found in the case of the Malis (Moghreliya)
at Surat. When questioned by the Judge they answered that a marriage might
amongst them be dissolved at the desire of either husband or wife. Either
some practical inconvenience arose or the moral perceptions of the caste became
more refined; a meeting of the caste was held, and it was voted unanimously
that divorce should not in future be allowed except for powerful reasons recog-
nised by the caste panchayat. This was communicated in answer to one of
Mr. Borraidaile's inquiries, MSS., Book G, sheets 29, 30. A recent change of
custom was recognised, though it was not necessary to base the decision upon
it, in Musst. Radiyat v. Madhowjee Panachund, 2 Borr. 740. According to the
notion generally entertained by the Sastris that customs, where not plainly
repugnant to the scriptures (Gaut., Chap. XI., para. 20; Apst., Transl., p. 15),
may be regarded as resting on some lost Smriti (Apast., Transl., p. 47), the
preference of conflicting Smritis may be determined by usage. See Viram.,
Transl., p. 127; Col. Dig., quoted in the Utpat Case, 11 Bom. H. C. E., at
p. 267; M. Miiller, H. A. Sansk. L., p. 53. Macnaghten, H. L., p. 102, says
the custom of Niyoga, and consequent legitimacy of the Kshetraja son, is still
preserved in Orissa. But, besides its conservative faculty, custom has had to
be recognised where it plainly abolished the ancient law, as in the very case
of the Niyoga just mentioned (see Mit., Chap. I., sec. 3, p. 4), and the unequal
partition prescribed or allowed by the Smritis but condemned by usage (see
Viram., Tr., p. 61). Mitramisra (Viram., Tr., p. 107) places the authority
of custom so high that he declares what is illegal in one generation may by
usage alone be made legal and even obligatory in another. Nilakantha, V.M.,
VYAV., CH. v.] INTRODUCTORY REMARKS. 617
show that many caste usages have been preserved contrary to the
rules of the Smritis, designed generally or chiefly for the guidance
and control of the Brahmans. The tendency to adoption of the
ceremonies and legal ideas of the higher castes by those of a lower
order has already been noticed (c). But many differences still
subsist which make it hazardous to ap]3ly the rules of the Sastras
to the legal relations and transactions of any but the higher castes
in the spheres of status and of family law, of adoption and of
inheritance. But few cases of this kind appear as the subjects of
questions to the Sastris, because, being regarded as matters of
special custom, such questions as arose were disposed of on the
evidence given in each case. A collection of such cases might
have been made from the records of the Courts, but it would have
been a work of considerable time; and meanwhile a process of
gradual assimilation has been going on which is on the whole
beneficial. The rules of the different religious orders, based
generally on a real or fancied analogy to those of Brahman
ascetics, have frequently been submitted to the Sastris, and a
general idea of the law of inheritance prevailing amongst their
members may be gathered from the cases here collected. But in
litigation concerning any math a or community it must be borne in
mind that it is the customary law of the particular class or institu-
tion that must govern the decision, rather than general rules
deduced from the practice of other orders or societies (d). This is
Chap. I., para. 13, points to many infringements of the scriptural law war-
ranted by custom, and even goes so far as to maintain that its approval may
exempt harlotry from penance. The necessities of social existence have thus
forced the Commentators by degrees from the position of uninquiring submission
to the letter of inspired precepts, and a sufficient authority can now be found
within the Hindu law itself for a rational development of its principles in
accordance with the improved moral consciousness of the castes (see Mathura
Naikin v. Esu Naikin, I. L. K. 4 Bom., at pp. 561, 567, 670). The sole choice
is not between a retention of every rag of usage which the community has
outgrown, and the adoption of a wholly foreign system; the course is open of
a gradual amelioration of the indigenous law in harmony with its fundamental
notions, and with the modified conception of these induced amongst the Hindus
themselves by the exigencies and the new standpoints of each stage of social
progress. The customary and case law of England has been formed under
influences substantially the same as those just indicated, and a remarkable
analogy may be observed between the view of custom as derived from lost
Smritis and custom in England as Statute law worn out.
(b) 2 Str. H. L. 162.
(c) Above, pp. 9, 402-3.
(d) See the cases cited above, pp. 198-9.
518 HINDU LAW. [BOOK 1.
the necessary qualification of the somewhat liroad statement of
Mr. Colebrooke at 2 Str. H. L. 181 (e).
According to the statements made by the Gosavis to Mr. J.
Warden (see Steele's Law of Caste, App. B., p. 64 ff.), the
members of his order living in Western India consider themselves
as Sannyasis, following the rules of Sankaracharya, and pretend
to obey the laws of Manu and other Dharmasastras (/). Though it
would therefore seem that cases of inheritance to their property
should be decided according to the rules of the Dharmasastra on
the succession to the property of a hermit, and though the answers
to the following Questions show this to have been also the opinion
of some of the Law Officers {g), it nevertheless cannot be allowed
that such a proceeding is in accordance with the general principles
of the Hindu law. For though, on account of their retirement
from the world, they are in a position analogous to that of the
Sannyasis, the Gosavis cannot claim to be Sannyasis in the proper
sense of the word. The order of the real Sannyasis is open,
according to some authorities, to Brahmans, Kshatriyas, and
Vaisyas, according to others to Brahmans only. It may be
entered at any time after the completion of the ceremony of
investiture with the sacred girdle (h). The Sannyasi is bound to
keep the vow of chastity and to renounce all transaction of
business. The Gosavis, on the contrary, receive among their
(e) See also the Utpat Case, 11 Bom. H. C. K. 249, and the Naikin Cdse,
I. L. E. 4 Bom. 645.
(/) Different statements are given by H. H. Wilson, Works, Ed. Kost,
Vol. I., pp. 167-169, and passim.
ig) They are considered as real Sannyasis also, Gungapooree v. Musst.
Jenee et al, 9 N. W. P. S. D. A. R. 212; Sungram Singh v. Dehee Dutt
et al., 10 ibid. 477.
(h) Nirnayasindhu, Par. III. Uttarardha, f. 51, p. 2, 1. 9 : Angiras — " A
person who knows (the Vedas) may enter the order of the Sannyasis, whether
he be a Brahmachari, a Grihastha, or Vanaprastha, whether he be sick or
suffering. . . Vijnanesvara (Mit., Pray., f. 25, p. 1, 1. 10) and the rest say that
a Brahman alone has a right to enter on this (order of the Sannyasi), on
account of this inspired text of Jabala : ' Brahmans become Sannyasis,' and
because Manu says : ' Having reposited the sacred fires in his mind, the
Brahman should leave his house and enter the order of the Sannyasis.' And
there is another verse to the same effect : ' It is said that for Brahmans four
orders are ordained in the revealed texts, for Kshatriyas three, for Vaisyas two,
and for Sudras one.' But the members of the three (twice-born) classes have
also a right (to enter the order of Sannyasis), since it is declared in the
Kurmapurana : 'A Brahman, a Kshatriya, or a Vaisya should leave his house
and enter the order of the Sannyasis.' "
VYAV., CH. v.] INTRODUCTORY REMARKS. 519
number Sudras (i) also and women, who have no right to become
Sannyasis. They neglect the performance of the Samskaras or
initiatory rites. Concubinage is allowed by their custom, and
some marry (k). Lastly, many are engaged in trade and other
worldly business (I).
It thus appears that it is impossible to consider them Sannyasis
in the sense of the Hindu law, and consequently to subject them
to the laws of this order. It is equally impossible to place them
under the laws of the Grihasthas or householders, as some Sastris
have done, since a very great number have no family ties and live
in the Mathas as members of coenobitic fraternities; and others,
though married, adopt pupils. Now, in all cases where a section
of the Hindu community places itself by its customs or opinions
in opposition to orthodox Hinduism and its law, the Hindu legis-
lators allow disputes between its members to be judged according
to its law or custom (m).
Thus the king is directed to uphold the customs of the castes (n)
of the Pashandas, or heretical sects, and of the Naigama orthodox
sects (o). The custom to be followed in the case of particular
institutions is in general that of such institutions as proved by
testimony. The custom in order to be recognised must apparently
be one not obviously bad or injurious to the institution to which
it is attributed. See below, sec. 1. On the same principle of
guarding the interests of the foundation it has been held that in
the case of a trusteeship held in heritable shares by several
families, though a father could relinquish his right of management
to his son, the son could not join in an alteration in the constitu-
tion of the trust. Nor could a majority of the trustees bind a
minority by an agreement to increase the number of trustees (p).
Under these circumstances it would seem advisable to place the
cases referring to the inheritance to Gosavis under the rules which,
according to their statements to Mr. Warden, cont^ain their law of
(t) Steele, Law of Caste, App. B, clause 24.
(k) Steele, Law of Caste, App. B, clauses 29 and 42.
(Z) Steele, Law of Caste, App. B, clause 14.
(m) See BJiau Nanaji v. Sundrabhai, 11 Bom. H, C. E. 249.
in) Vyav. May., p. 7, 1. 1; Borradaile 7; Stokes's H. L. B. 16.
(o) Vyav. May., p. 206, 1. 1; Borr. 176, 177; Stokes's H. L. B. 141; Mit.
Vyav., f. 73, p. 1, 1. 6.
(p) Kiyipattu A. Narayan 'Namhudri v. Ayikotillatu S. Namhudri, I. L. R.
5 Mad. 165.
520 HINDU LAW. [book I.
custom (q). Hence in some of the remarks on the following cases,
instead of the authorities from the Law Books being quoted in full,
references have been given to the paragraphs of Mr. J. Warden's
Report, and to Steele's Law and Custom of the Hindoo Castes.
The following statement, however, may be quoted as describing
a custom which, with slight local variations, governs the suc-
cession to Sannyasis throughout the greater part of India. " It
has been laid down by the late Sudder Dewanny Adawlut that
amongst the general tribe of fakirs called saniasis ... a right of
inheritance, strictly so speaking, to the property of a deceased
guru or spiritual preceptor does not exist; but the right of suc-
cession depends upon the nomination of one amongst his disciples
by the deceased gum in his own lifetime, which nomination is
generally confirmed by the malmnts of the neighbourhood
assembled together for the purpose of performing the funeral
obsequies of the deceased. Where no nomination has been made
the succession is elective, the mahants and the principal persons
of the sect in the neighbourhood choosing from amongst the dis-
ciples of the deceased guru the one who may appear to be the most
qualified to be his successor, installing him then and there on the
occasion of performing the funeral ceremonies of the late
guru " (r).
In some instances the religious services performed by Gosavis
or Vairagis in charge of temples are rendered on the voluntary
principle. The temple is the property of a caste or section of a
caste, whose representatives control the expenditure of the funds,
pay the guru, and appropriate the surplus proceeds of the endow-
ment and offerings for caste purposes. In such cases the guru
holds his place for life and during good behaviour, but has not a
property in his office or in the emoluments. His nomination of a
chela as his successor has no special force, but is generally respected
by the caste if he was himself held in esteem (s). As to the
formal expression of the will of the caste or its representatives in
these and other cases reference may be made to Steele, L. C.
iq) Compare also Nirunjun Bharthee v. Padaruth Bharthee et al., N. W. P.
Repts. of Sel. Cas., 1864, Part I., p. 612.
(r) Madho Das v. Kamta Das, I. L. R. 1 All., at p. 541. Sugan Chand v.
Gopalgir, 4 N. W. P. R. 101, excludes a chela who deserts his guru. On the
subject of sacerdotal privileges and superiority, see Ramasawmy Aiyan et al.
V. Venkata Achari et al., 9 M. I. A. 344; and Kashi Bashi Ramlinga Swamee
V. Chitumhernath Koomar Swamee, 20 C. W. R. 217.
(s) His nomination is in other cases held binding. See Steele, L. C. 437.
VYAV., CH. v., S. 1 la.] DISCIPLE. • 521
124 ss. The inhabitants of a village or of a quarter of a town some-
times ereet a matha or temple — a practice often commemorated in
inscriptions (t). The position of the officiating worshipper or guru
in Buch cases varies according to the terms of his institution ; but
he is generally removable for misconduct (v).
SECTION I.
I. To A Male Gosavi,
a.— THE DISCIPLE.
Q' 1. — Can a disciple succeed to the property of a deceased
Gosavi ?
A' — A disciple is the heir of a Gosavi, and therefore can succeed
as such.
Ahmednuggur, 1845.
Authority not quoted.
Eemark.— See Steele, Law of Caste, App. B., para. 20 (w).
Q. 2. — A Gosavi died. There is a disciple nominated by him as
his successor. Can he succeed him?
A. — The Gosavis and Vairagis should be regarded as Sannyasis
of the lower castes, such as Sudras and others. The person who
claims to be the heir is a disciple nominated by the deceased. His
claim, therefore, should be recognised.
Ahmeda^had, September 15th, 1853.
(t) As for instance the one described in Ind. Antiq., Vol. X., p. 185 ss.
(v) See Acharji Lalla Ranchor v. Bhagat Jetha Lalji, Bom. H. C. P. J. 1882,
p. 374.
(w) Succession to ascetics is based wholly on personal association, Khuggender
N. Chowdhry v. Sharupgir Oghorenath, I. L. R. 4 Cal. 543. An ascetic cannot
alter the succession to an endowment, Mohunt Rumundas v. Mohunt Ashhul
Dass, 1 C. W. R. 160. He cannot impose restrictions on his successor contrary
to the custom, such as disposing of the Mohantship by way of reversion, Greed-
hari Doss v. Nund Kissore Doss, 11 M. I. A. 405. The general rules of
succession are given in the Smriti Chandrika, p. 122.
The trustee of a religious endowment may not alienate or encumber it except
under special circumstances. See Q. 4, Rem. 2.
522 HINDU LAW. [BOOK I.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 141, 1. 7.
Eemabks. — 1. The Guru must nominate a chela as successor, and this must
be confirmed by the mohants (x). For the succession of a chela in the Sravak
sect, see Bhutaruk Rajendra v. Sook Sagur et al. {y). For a joint succession of
two chelas, Gopaldas v. Damodhar (z).
2. Sudras cannot become Sannyasis in the sense in which the word is used
in the Dharmasastras. See Introductory Eemarks.
3. See also Steele, Law of Caste, App. B., para. 20.
Q. 3, — Is a disciple or a Gurubhau of a Go&avi his heir?
A. — If the Gurubhau is separate the disciple will be the heir.
If he is united in interests he and the disciple will be the equal
heirs.
Khandesk, July Srd, 1854.
Authorities.— (1) Vyav. May., p. 131, 1. 8; (2; p. 134, 1. 4.
Kemark. — See Steele, Law of Caste, App. B., para. 20; Mahdo Das v. Kamta
Das (a).
Q. 4. — A Matha of a Gosavi had always been in charge of
disciples succeeding one another. Should it remain with a disciple
or a relation of the Gosavi ?
A. — The Sastras contain no provision regarding the matter. The
custom of the sect should therefore be inquired into.
Poona, December 29th, 1847.
Authority.— Vyav. May., p. 7, 1. 1 (see Chap. XL, sec. 13, Q. 9, p. 434).
Eemarks. — The Matha should pass into the possession of the disciple if he
was nominated by his Guru. If no nomination had taken place, and there are
several disciples, they or the Dasnamah will elect a successor. See Steele, Law
of Caste, App. B., paras. 18, 19, 20.
2. In Rajah Vurmah Valia v. Ravi Vurniah Mutha (b) the Judicial Committee
say : " They conceive that when, owing to the absence of documentary or other
direct evidence of the nature of the foundation, and the rights, duties, and
powers of the trustees, it becomes necessary to refer to usage, the custom to be
proved must be one which regulates the particular institution." Eeference is
(x) Atmanund v. Atmaram, N. W. P. S. A. E. for 1862, p. 462.
(y) 1 Borr. E. 320.
(z) 1 Borr E. 439.
(o) I. L. E. 1 All. 539.
(b) L. E. 4 I. A., at p. 83.
VYAV., CH. v., S. 1 la.] DISCIPLE. 523
made to the case above, Q. 1, and approval given to Peacock, C.J.'s dictum in
that case, that " each case must be governed by the usage of the particular
mohantee." The Rameswara Pagoda Case (c) also is referred to. "The
important principle ... is to ascertain . . . the special laws and usages
governing the particular community."
In Sammantha Pandara v. Sellappa Chetti (d) the origin of mathas is
discussed, and the duties and powers of the superior described in a way assigning
to him in Madras a somewhat larger discretion than is recognised elsewhere.
3. Religious endowments are generally inalienable, but they may be tempo-
rarily pledged for repairs and other necessary purposes. See Prosunno Kumari
Dehya v. Golab Chand Babu (e), Narayan v. Chintaman (/), Khusalchand v.
Mahadevgiri (g), Mohunt Burm Suroop Dass v. Khashee Jha (h), Malhar Sak-
haram v. Udegir Guru (i), and the remarks in Gundoji Bawa v. Waman
Bawa (k).
Q. 5. — 1. A Gosavi, having nominated two disciples, died. Botli
these disciples lived in the Matha of their Guru. The senior dis-
ciple nominated a disciple to succeed him. The junior disciple was
afterwards confined in prison on a charge of murder. While in
prison he nominated a disciple, and passed to him a deed author-
ising him to inherit his and his Guru's property. On the strength
of this document the disciple has filed a suit against the senior
disciple, and the man nominated by him as his disciple, for the
recovery of the property of his Guru. Is his claim admissible ?
2. What actions make a man Patita?
3. What ceremonies should be performed on the occasion of
nominating a disciple?
A. — 1. As the man was confined in prison for murder, he must
be considered a Patita. He has forfeited his right of nominating a
disciple, and a disciple nominated by such a person cannot claim
any property.
2. A man becomes a Patita by the commission of the following
crimes : (1) Stealing gold, (2) killing a Brahman, (3) drinking
intoxicating liquors, (4) having criminal intercourse with the wife
of one's teacher, one's sister, &c., (5) burning a house, (6) killing
(c) L. R. 1 I. A., at p. 228
(d) I. L. R. 2 Mad., 176.
(e) L. R. 2 1. A., 145, 151.
(/) I. L. R. 5 Bom. 393.
ig) 12 Bom. H. C. R. 214. •
(h) 20 C. W. R. 471.
(t) Bom. H. C. P. J. 1881, p. 108.
(fc) Ibid., p. 292.
524 HINDU LAW. [BOOK I.
a man by administering poison to him. There are some others
besides those above enumerated.
3. A person nominated a disciple must be one who is not
married. The Guru gets him shaved and communicates to him
certain sacred words. The followers of the sect to which the Guru
belongs are informed of the intended nomination. The Sastra is
silent on this subject, but the custom requires these ceremonies,
and a disciple, duly nominated with the customary ceremonies,
becomes entitled to a share of his Guru's property.
Ahmedahad, June 2nd, 1845.
Authorities.— (1) Mit. Vyav., f. 60, p. 1, 1. 13; (2) f. 60, p. 2, 1. 1 ; (3) Vyav.
May., p. 161, 1. 7.
Eemarks. — 1. The acts for which a Gosavi is outcasted are : Killing a cow, a
Brahman, a woman, a Guru, or a child, and sexual intercourse with other than
Hindu women. See Steele, Law of Caste, App. B., para. 30.
2. Eegarding the ceremonies at the initiation of a Gosavi. See also Steele,
Law of Caste, para. 27.
3. Importance seems to be attached by some of the sects to a written nomina-
tion of a chela as successor to the guruship which, once delivered, they consider
irrevocable except for conduct producing spiritual incapacity.
4. In Greedharee Doss v. Nundkissore Doss Mohunt (l), the Judicial Com-
mittee say : " This seems to be clear, from all the evidence in this case, as far
as it has been brought under their Lordships' attention, — that there cannot be
two existing Mohants ; that the office cannot be held jointly ; and that, therefore,
if there was a double Ticca at all, it must have been a Ticca of the office in
reversion after the existence of the incapacity of Ladlee Doss to perform the
duties. But the evidence upon that point, and the law adduced upon the subject
before their Lordships, fail entirely to satisfy their minds that any such species
of investiture was according to the rules and customs of these Mohants, or that
any such Mohantship can be given in reversion."
I
Q. 6. — A Gosavi had two disciples; one was bom by a kept
woman and the other was presented to him by another Gosavi.
The Gosavi, at his death, left no directions providing for his suc-
cession, and the question is : Who should succeed him ?
A. — A virtuous disciple should succeed. The son of a kept
woman cannot. A virtuous disciple means a disciple who is hos-
pitable and civil to thos^ who visit his dwelling.
Ahmednuggur, October 20th, 1859.
(l) 11 M. I. A., at p. 429.
VYAV., CH. v., S. 1 la.] DISCIPLE. 525
Authority. — Vyav. May., p. 142, 1. 4 and 8.
Remark. — This answer would be right in the case of a real Sannyasi. Accord-
ing to the custom of the Gosavis, however, to whose case also the authorities
above quoted refer, natural sons may become disciples, and inherit as such from
their fathers. See Steele, Law of Caste, App. B., paras. 29 and 20. See also
Narayanbharti v. Lavingbharti et al. (m), which excludes the offspring of an
adulterous connection.
2. The purchase of a chela is in some cases recognised. See Col. Dig.,
Book v.. Chap. IV., sec. 10, note. This, Colebrooke says, is not to be regarded
as adoption, but as resting on the special custom of the caste. See 2 Str. H. L.
133.
Q. 7. — Two persons claim to be heirs of a Gosavi of the Maratha
caste. The one is a " Gurubhau," or a disciple of the same pre-
ceptor. The other is a son of a kept woman of the deceased, but
adopted by him as his disciple by the ceremony of tonsure (Mun-
dana). Which of these is the proper heir?
A. — Both appear to be the heirs, but the one adopted as disciple
seems to be the nearer of the two.
Rutnagherry , November 8th, 1845.
Authority not quoted.
Remarks. — See Steele, Law of Caste, App. B, para. 29.
2. The alleged disciple or shishya of a deceased Gosavi who sued another
alleged shishya in possession of the matha and estate for a declaration of his
own superior title must, it was held, pay the fee proper for a suit for possession,
the real purpose of the suit being to obtain the property (n).
Q. 8. — A Matha of a Gosavi was held from disciple to disciple.
This being the case, a disciple married and broke through the
custom of the Matha. Can this breach of the custom be held a bar
to his right of inheritance ?
A. — A disciple who conforms himself to the custom of the
Matha and no other can succeed.
Ahmednuggur, August lAth, 1854.
Authority. — Vyav. May., p. 142, 1. 2.
Remarks. — The authority given by the Sastri refers only to a real Sannyasi,
though the answer itself appears to be correct.
2. Both in the Dekkan and elsewhere the Gosavis in some cases marry and
(m) I. L. R. 2 Bom. 140.
(w) Ganpatgir v. Ganpatgir, I. L. R. 3 Bom. 230.
526 HINDU LAW. [BOOK I.
still are eligible to mahantship in succession to deceased mahants. " The excep-
tion made (by Mr. Warden) must be extended to other places than the Dekhan
also. It has been proved that the Bharti sect of Gosavis in (Ahmedabad), the
locality whence this appeal comes, very generally marry . . . and there is one
if not two instances of a married member of the Bharti sect being a mahant of
a math."
" The plaintiff having proved his succession as mahant ... we think that
the burden of proving that the plaintiff's subsequent marriage worked a for-
feiture of his ofi&ce and its appendant property and rights lay upon the
defendants " (o).
Q. 9. — If a Gosavi has got himself married, is he still to be con-
sidered a Gosavi? Can he claim the right of inheriting from his
Guru? A deceased Gosavi had left two disciples; one of them is
suffering from a disease, and the other died leaving a disciple
nominated by him. To whom will the right of inheritance belong
— to the man afflicted with the disease or to the disciple of a
disciple ?
A. — The question of the legality or propriety of the marriage of
a Gosavi should be disposed of by the king in accordance with the
usage of the sect. When a disciple is suffering from such diseases
as black leprosy and others, and when he is in such a condition
that he cannot be admitted into the sect, he cannot claim the right
of inheritance. According to the custom of the sect, the disciple
of a disciple will be the proper person to inherit the property of the
deceased.
Ahmednuggur, October 26th, 1850.
Authority. — Vyav. May., p. 142, 1. 2 and 8.
Eemarks. — 1. Eegarding the permissibility of the marriage, see the preceding
case.
2. Eegarding the right of the disciple's disciple to inherit from his Guru's
Guru, see Steele, Law of Caste, App. B, para. 20.
I. b.— FEMALE DISCIPLE.
Q. 1. — A Gosavi who had no heir nominated a woman as his
disciple. Can she be the heir after his death?
A. — According to the Sastras she cannot be the heir of the
deceased.
Dharivar, October 2nd, 1848.
(o) Sir M. Westropp, C.J., in Gosain Surajbharti (Plaintiff in both cases)
versus Gosain Ramhharti (Defendant in E. A. No. 11 of 1880), and Gosain
Ishvarhharti (Defendant in E. A. No. 12 of 1880), I. L. E. 5 Bom., at p. 684.
VYAV., CH. v., S. 1 Id.] DISCIPLE. 527
Authority. — Vyav. May., p. 142, 1. 4.
Kemarks. — 1. Female disciples are received by the Gosavis, and, as it would
seem, they also inherit their Guru's property. See Steele, Law of Caste,
App. B., paras. 21 and 20.
2. In the Keports of Selected Cases, Sudder Dewani Adawlut, North-Western
Provinces, Vol. II., p. 235, it is ruled that a female disciple does not inherit,
since, according to the Hindu Law, only males can take the property of their
Guru.
I. c— DISCIPLE'S DISCIPLE.
Q. 1. — A Gosavi died. There is a disciple of his disciple, and
some grand-disciples of the grand-disciple of his Guru. The ques-
tion is : Which of these will be the heirs of the deceased?
A. — The grand-disciple is the heir. If, however, the deceased
and the other disciples were united in interests, all would be
entitled to an equal share of the inheritance.
Khandesh, January 2Qth, 1854.
Authority. — Yyav. May., p. 134, 1. 4.
Remark. — See Steele, Law of Caste, App. B., para. 20.
Q. 2. — Should a man apply for the property belonging to his
Guru's Guru, can he have it?
^.— No.
Dharwar, 1846.
Authority not quoted.
Eemark. — See the answer and remark to the preceding case.
I. f^.— THE FELLOW-DISCIPLE.
Q. 1. — A Gosavi died. His Gurubhau is ahve. Should the pro-
perty of the Gosavi be considered heirless ?
A. — The Gurubhau is the heir of the Gosavi.
Tanna, March 25th, 1850.
Authority. — Vyav. May., p. 142, 1. 4.
Eemark. — The authority refers to a real Sannyasi.
528 HINDU LAW. [book
Q. 2. — A Kanphata Gosavi had two disciples. They both died,
one after the other. A disciple of the first deceased has applied to
be recognised as heir of the one who died afterwards. Is he the
heir?
A. — When a man in the order of ** Vanaprashtha " dies, his
Guru and others can inherit his property. When a man dies in the
order of Sannyasis his disciples become his heirs. When a man
dies in the order of Brahmachari his Dharma-Bhaus or fellow-
students can inherit his property. From this it appears that a
disciple nominated according to the custom of the caste by the one
who died first can inherit the property of his Guru's brother who
died afterwards.
Khandesh, August 23rd, 1850.
Authority. — Vyav. May., p. 142, 1. 4.
Remark. — The authority and answer apply to the case of a real Sannyasi.
Q. 3. — Can a Gurubhau of a Guru of a deceased Gosavi be his
heir?
A. — No one can be the heir of a deceased Gosavi except his
Guru disciple or Gurubhau.
Ahmednuggur, November 4th, 1846.
Authority not quoted.
Q. 4. — A Gosavi had two disciples. One of them nominated a
disciple, the other had none. The latter died. Can his property
be claimed by the disciple of the former?
A. — The Sastra does not recognise the heirship of a person
situated as above mentioned. He cannot, therefore, be considered
an heir of the deceased.
Poona, November SOth, 1853.
Authority not quoted.
VYAV., CV. v., S. 1, II.] HEIRS TO A MARRIED GOSAVI. 529
I. e.— THE GUKU'S FELLOW-DISCIPLE.
Q. 1. — A Gosavi has died. WiU the Gurubhau of his Guru be
his heir ?
A. — The Sastra allows a man to acquire knowledge from u
person of a lower caste than himself. By the custom of the
country a Guru and a disciple stand in the same relation to each
other as a father and a son, and they become heirs of each other.
The Sastra permits a disciple to inherit from his Guru, and a Guru
can in like manner inherit from his disciple, who dies without
issue. It is nowhere mentioned in the Sastra that in the absence
of a Guru his brother may succeed, but as a Guru in the caste of
Gosavis takes the place of a father in a family, a Gurubhau may,
in the absence of a disciple, brother, or brother's disciple, be con-
sidered an heir.
Sadr Adalat, March 5th, 1853.
Authority. — Viramit, f. 209, p. 2, 1. 9.
Remarks. — 1. The answer would apply to a real Sannyasi.
2. The decision of the question depends upon the custom of the caste and
II.— HEIES TO A GHAEBAEI OE MAEEIED GOSAVI.
Q. 1. — A Gosavi kept a woman. She gave birth to a son. The
Gosavi then married another woman. He afterwards died. Which
of these three survivors should be declared his heir, and how far
would the fact of the deceased being originally a Brahman,
Kshatriya, or a Vaisy a before he entered the order of Gosavi affect
the rights of heirs ?
A. — A good disciple becomes the heir of a Gosavi as a general
rule. But if he were of the Sudra caste and his wife childless, the
son of his mistress would, according to the custom of the Sudras,
be his heir, the wife being entitled to a maintenance only. If the
deceased originally belonged to either of the other three castes —
viz., Brahman, Kshatriya, or Vaisya, his good disciple should be
considered his heir.
Ahmednuggur , April l^th, 1857.
Authorities.— (1) Mit. Vyav., f. 55, p. 1, 1. 11; (2) f. 59, p. 1, 1. 13.
Eemarks.— 1. The Sastri's answer applies to a Grihastha or householder
only.
2. If the customs of Gharbari Gosavis are the same as those of Gosavis
H.L.
34
530 HINDU LAW. [BOOK I.
proper, as would seem to be the case according to Steele, Law of Caste, App. B.,
para. 42, the illegitimate son will be the heir. See Steele, ibid., para. 29 (p).
Q. 2. — A Matha of a Gosavi was held from disciple to disciple.
A Gosavi who came into possession of it kept a woman, by whom
he had a son. Afterwards he married and became a " Gharbari."
He subsequently acquired some property and died. The question
is whether the son of the kept woman or his widow is the heir ?
A.-^li the Gosavi belongs to the Sudra caste the son of his kept
woman will be his heir. If the Gosavi belongs to either of the
three superior castes — namely, Brahman, Kshatriya, and Vaisya
— his widow will be his heir. The son in this case may claim
maintenance, not as a matter of right, but grace.
Tanna, March 15th, 1856.
Authorities.— (1) Mit. Vyav., f. 55, p. 1, 1. 11; (2) f. 55, p. 2, 1. 1.
Remark. — See the preceding case.
Q. 3. — A deceased Gosavi has left a wife and a disciple. Which
of these is the heir?
A. — The wife will be the heir. The disciple cannot succeed, but
if the custom of the sect requires that the disciple should succeed
he may be allowed to do so. The wife in that case will be entitled
to maintenance only.
Khandesh, November SOth, 1859.
Remark. — Regarding the Gharbari, or married Gosavi, see Steele, Law of
Caste, App. B., paras. 6 and 42 ff.
Q. 4. — A Gosavi, either of the sect of the Puri, Giri, or Bharathi,
acquired a Vatan like that of a Patil or Kulkarani. Can it descend
to his or his wife's diseiple?
A. — Among the Gosavis of the above-mentioned sects a disciple
is as good an heir as a son among other people. If a disciple was
(p) This case illustrates the remarks made above, pp. 80, 81.
WAV., CH. v., S. 1, III.] HEIRS TO A FEMALE GOSAVI. 531
not nominated by the male Gosavi his wife may nominate one to
succeed to her estate in the same manner as a widow among other
classes is allowed to adopt a son. No objection seems to exist to
such a proceeding.
Khandesh, October 21st, 1848.
Authority. — Vyav. May., p. 142, 1. 4.
Q. 5. — The parents (of the Kunabi caste) offered their son of the
age of three months to a Gharbari Gosavi (married Gosavi). Before
the child was initiated in the rites of the sect the Gosavi died. His
wife, however, called the members of her sect, and presented a
turban to the child, and placed him on the seat of the deceased.
The nephew of the deceased taught him certain incantations and
shaved his head. Is this not sufficient to entitle him to a certifi-
cate of heirship of the deceased ?
A. — If the deceased Gosavi 's wife and nephew have done all
that was required to qualify a successor to a Gosavi according to
the customs and rules of the sect, the certificate applied for may
be given to him. Among the Vanaprasthas, Brahmacharis, and
Sannyasis of the ten different tenets the succession takes place by
disciples. The Gosavis and Vairagis follow the same tenets, and
should be treated accordingly.
Ahmednuggur, March 2Sth, 1849.
Authority. — Vyav. May., p. 142, 1. 2 and 8.
III.— HEIES TO A GOSAVINI, OE FEMALE GOSAVI.
Q. 1. — A female Gosavi died. Which of the following will be
her heir: her Guru (namely, the preceptor, or the one who
initiated her into the doctrine and practices of the sect); her
Guru's son, her husband's disciple, her second or "Pat" hus-
band's disciple ; her Gurubhau, or the one who belongs to the same
fraternity to which her Guru belongs?
^.—According to the custom of the sect of Gosavis, a well-
behaved disciple will be the heir of the deceased. If she has made
a gift of her property to her Guru, he can take it. If there is
532 HINDU LAW. [BOOK I.
neither of these with the necessary qualifications the disciple of
her second husband must be preferred to her Guru.
Ahmednuggur, February 24t/i, 1847.
Authorities.— (1) Mit. Vyav., f. 59, p. 1, 1. 13; (2) Vyav. May., p. 142, 1. 8.
Eemark. — See Steele, Law of Caste, App. B., paras. 21 and 20.
Q. 2. — Can a woman of the Gosavi sect who is under the vow of
ceHbacy nominate a disciple? And can her preceptor or Guru be
her heir?
A. — A virtuous woman of the sect can nominate a disciple, and
if a disciple is virtuous he can succeed as heir. The Guru may
take such property as may have been duly transferred to him, but
in the absence of a properly qualified disciple the property will go
to the Sirkar.
Ahmednuggur, August 22nd, 1847.
Authority. — Vyav. May. p. 142, 1. 4 and 8.
Eemark. — See Steele, Law of Caste, App. B. paras. 21 and 38.
SECTION 2.— HEIKS TO A JANGAMA.
Introductory Eemark.
The Jangamas are the priests of the Lingayata sect, who pretend to have
renounced the world, like the Sannyasis. But the laws referring to the latter
cannot be applied to them for the same reasons as in the case of the Gosavis.
For an account of their doctrine and history, see H. H. Wilson, Works, Ed.
Brost, Vol. I., pp. 218 — 230; and of their customs, Steele, Law of Caste,
p. 105 ff.
Q. 1. — A Brahmachari Jangama, holding the hereditary office of
Pattadhikari, died. The question is whether the successor to the
office should be a Brahmachari (unmarried) or a married Jangama ?
2. A man alleges that the office was conferred upon him by the
deceased. The question is whether his eligibility to the office will
be effected by the performance or omission of the ceremony called
the Jangama-Diksha (q).
(q) Diksha z= Initiation .
VYAV., CH. v., S. 3.] HEIRS TO A JATI. 533
3. The head Matha is presided over by a Brahmachari Jangama,
and there is an inferior Matha, which is also presided over by
persons of the same class. The Brahmachari of the inferior Matha
died, and has left no disciple. Can the Brahmachari of the head
Matha succeed to the inferior Matha?
A. — 1. A man cannot succeed to a Pattadhikariship unless he
is his Dharma-brother, or fellow-student living in the same
dwelling. He must further be a Brahmachari living in a college,
and a Vira-Saiva, who is the most pious of the seven classes of the
Saivas or the worshippers of Siva. A married man, although he is
a fellow student, cannot be an heir of a Pattadhikari.
2. The answer to the second question is, that if it be proved that
the man who claims to be an heir of the deceased is possessed of all
the qualifications above-mentioned, and the Pattadhikari on his
death-bed conferred the office upon him with the ceremony called
the " Triordha-Diksha," his claim should be admitted.
3. The answer to the third question is, that if the Pattadhikari
of the head Matha possesses all the qualifications, and if he has a
right derived from long-established custom, he may be allowed to
succeed.
Sholapoor, December Srd, 1856.
Authority. — Mit. Vyav. f. 59, p. 1, 1. 13.
Eemarks. — According to Steele, Law of Caste, p. 105, the head of the
Matha (Pattadhikari) appoints his successor, or the disciples elect a new
Pattadhikari with the sanction of the caste, Zamindars or Government.
In some Mathas the Jangamas are married. Ibid. p. 106.
There is a good account of the usual origin of a Matha in Sammantha Pan-
dara v. Sellappa Chetti (r) referred to above.
SECTION 3.— HEIKS TO A JATI.
Introductory Eemark.
The Jainas are divided into Yatis or Jatis, religious devotees, and Sravakas,
lay-brethren. As the Jainas deny the authority of the Vedas, they belong to
the Pashandas, heretics, and their devotees, consequently, are not subject to
the laws of the Sannyasis. Regarding the history and doctrines of the Jainas,
see H. H. Wilson, Works, Ed. R. Rost, Vol. I., pp. 276—369; and regarding
(r) I. L. R. 2 Mad. 175.
534 HINDU LAW. [BOOK I.
the practices of the Yatis, ihid. p. 317 ff. For rules and customs as to the
succession to Gurus, see Steele, Law of Caste, p. 103.
Q. 1. — (1) A Jati died leaving two disciples. They may have
effected a partition of the property of their Guru or left it
undivided. Afterwards the senior disciple died, leaving a disciple.
The questions are, whether this disciple can claim a moiety of the
property of his grand-Guru? or whether it will go to the brother-
disciple of the last deceased?
(2) A Jati first became a disciple of one Guru, and afterwards of
another by the ceremony called ' ' Sipuj , ' ' and assumed the name
of Datta. Subsequently he called himself by a name in which his
first and the second name were compounded. Is the Jati to be
considered a disciple of the first Guru? and can he inherit from
his Guru in preference to his brother-disciple ?
A. — (1) The Sastra declares that the best disciple is the heir of
his Guru. The two disciples, having effected a partition of their
Guru's property, became separate. Afterwards one of them died.
His disciple therefore is the legal heir. If the Guru's property
had not been divided, yet the right to an equal share of it on the
part of each of the two disciples is inherent, and the disciple of the
deceased should be allowed to take whatever share belonged to his
Guru.
(2) The Jati, who became a disciple, first of one and then of
another Guru by the ceremony called " Sipuj," cannot be con-
sidered to have deserted his first Guru. He still calls himself by
the name which his first Guru gave him. He cannot therefore be
considered to have forfeited his right of inheritance.
Surat, September 29th, 1849.
Authority. — Mit. Vvav., f. 59, p. 1, 1. 13.
Q. 2. — A Guru of the Sravaka sect has applied for a certificate
declaring him to be the heir of a disciple of his Guru-Bhau. The
applicant has kept a woman. Is his right to inherit from the
deceased affected by this circumstance ?
A. — A Guru is like a Sannyasi, and fornication on his part is
contrary to the Sastra and the usages of the Jaina sect. A Guru
addicted to such a vice forfeits his right of inheritance.
Surat, October 28th, 1850.
Authorities. — (1) Mit. Vyav., f. 59, p. 1, 1. 13; (2) Yoga Chandrika.
VYAV., CH. v., S. 5.] MANBHAU. 636
SECTION 4.— HEIES TO A NANAK SHAHI.
Q. 1. — A man of the Nanak Shahi sect died. There are his
Guru-Sishyas and Guru-Bhaus. Which of these should be con-
sidered his heir?
A. — The sect founded by Nanak Shahi is not recognized by the
Sastra. It has recently come into existence. The persons of that
sect are Sudras, whose property cannot be inherited either by
their Gurus or Sishyas, and others connected merely by the simi-
larity of their tenets. The property should be taken possession of
by the Sirkar.
Poona, July Ath, 1851.
Authority. — Vyav. May., p. 142, 1. 2.
Remarks. — 1. Eegarding the tenets and history of the Nanak Shahis, see
H. H. Wilson, Works, Ed. R. Rost, vol. I., p. 267 ss.
2. The Sastri seems to intend that the Nanak Shahi, being Sudras, cannot
be placed under the rules regarding the inheritance to a Sannyasi. But it by
no means follows that for this reason the property is to be considered heirless.
According to what has been said in the Introductory Remark to Chap. V.,
sec. 1, the case ought to be decided according to the custom of the sect.
SECTION 5.— MANBHAU.
Q. 1. — There are two sects of Manbhaus. The individuals of
the one lead a life of celibacy, and the individuals of the other
marry. Among the former, ar© preceptors and disciples the heirs
of each other; and among the latter, are sons and other relations
the heirs?
A. — There is no provision in the Sastra regarding the sect,
and the question therefore must be decided according to the
customs of the sect.
Ahmednuggur, October 21th, 1848.
Q. 2. — Can a disciple of the " Malri " caste be the heir of a
Manbhavini (a woman who had embraced the tenets of
Manbhau) ?
A. — If the man of the Malri caste was made a disciple accord-
ing to the custom of the sect, he can be the heir.
Khandesh, October Uth, 1852.
536 HINDU LAW. [BOOK 1.
Q. 3. — A " Guru Bahina " of a man of the Manbhau sect died.
He claims her property. Can it be given to him even if the Guru
is said to be living in another country ?
A. — There is nothing in the Sastras regarding the sect. Their
customs, therefore, whatever they may be, should be respected.
Ahmednuggnir, October 16th, 1850.
Q. 4. — A woman had two sons, named Saybowa and Sukha-
deva. The woman, though originally a Sudra, adopted a Man-
bhau for her Guru. Her younger son Sukhadeva also chose the
same Guru, so that according to the custom of the sect, the
mother and the son became Gurubhau and Gurubahina (brother
and sister) of each other. Saybowa had selected a different Guru.
The mother, after her initiation into the sect, built a house. Sub-
sequently she and her son Sukhadeva died. The latter has left
a disciple. By the custom of the Manbhau sect a Gurubhau
becomes heir. The question therefore is, whether the disciple of
Sukhadeva, who was the Gurubhau of his mother, or the son of
Saybowa, should inherit it?
A. — According to the Sastra, the son or the grandson is the
heir to the property of his mother.
Khandesh, February 10th, 1851.
Authority not quoted.
SECTION 6.— HEIES TO A VAIEAGI.
Introductory Eemarks.
Kegardiug the history and tenets of the Vairagis, see H. H. Wilson, Works,
Ed. K. Eost, vol. I., p. 184 ff.
Regarding their customs see also, Steele, Law of Caste, pp. 102, 433 ss.
Vairagis so-called are sometimes found in occupation of temples, as amongst
the Shenvi Brahmans in Bombay. They in some cases hold the temple property
after the manner of true mahants, and appoint chelas, subject to approval by
the panch or committee of the Vairagis of the other temples in the island. In
other cases the property is held by trustees for the temple, and the quasi-
mahants' appointment of a successor is little or nothing more than a recom-
mendation of him as worshipper to the trustees in whom as representatives of
the caste, owners of the temple, the right of nomination is really vested. The
VYAV., CH. v., S. 6.] HEIRS TO A VAIRAGI. 537
practice varies as to the direct ownership of the endowment, as to its manage-
ment, as to the removableness of the worshipper, and the hereditary descent
of his office to chelas whether nominated or not, and has seldom acquired in
any institution the consistency and permanence requisite to a custom to be
recognized by Courts of law.
The Vairagis are Vaishnava mendicants, following either the doctrines of
Bamananda or of Nimbaditya, Kabir, Dadu, and other teachers. They receive
Sudras and women into their community, and for this reason they can neither
be considered real Sannyasis, nor be subjected to the laws of the Dharmasastra.
It would however seem that the married Bhat Vairagis, mentioned by Mr.
Steele, form an exception, and are simply Grihasthas or householders.
SECTION 6 (1).— HEIES TO A VAIEAGI (s).
Q. 1. — Who is th© heir of a deceased Vairagi?
A. — If the deceased has left any property, his disciple, and if
there is no disciple, one of his sect will be the heir. A Vairagi,
however, can give away his property to any one he chooses.
Surat, August 1st, 1845.
Authority not quoted.
Bemarks.— 1. See Steele, Law of Caste, p. 109, 1st ed. ; p. 103, 2nd ed.
2. A Vairagi may retain his property (t).
Q. 2. — Can a disciple of a Vairagi be his heir?
A. The Sastra takes cognizance of the succession by a disciple
of a Sannyasi, but not of a Vairagi. The custom, therefore,
should be the rule in the case of the latter sect.
Poona, December 26tJi, 1854.
Authority not quoted.
(s) A disciple who leaves his Guru without permission and goes away,
manifesting an intention to be permanently absent, is not entitled to a share
in the succession, Soogun Chund et al. v. Gopal Gir et al., 4 N. W. P. B. 101.
This occurs not unfrequently, as the chelas go about to seek a better settlement.
They cannot again become chelas in the proper sense, but they sometimes
attach themselves to mahants or gMCSt-mahants as assistants, and get nomin-
ated or elected as successors.
(t) Jagannath Pal v. Bidyanand, 1 Beng. L. B. A. C. 114.
538 HINDU LAW. [BOOK I.
Q. 3. — One Bhagvandas performed the funeral rites of the
deceased Atmaram Bava Vairagi. The heads of the Vairagi sect
called the " Mahants, " who' had come on the occasion, recognized
Bhagvandas as the successor of the deceased. Should he or the
sister of the deceased be considered the heir?
A. — According to the usages of the sect, Bhagvandas is the heir,
by reason of his being a properly qualified disciple. The sister,
though a Sapinda relation, is not the heir.
Ahmednuggar, November Ist, 1847.
Authority not quoted.
Remark. — See Mohunt Sheoprokash Doss v. Mohunt Joyram Doss iv).
Q. 4. — There were two half-brothers of the Vairagi sect. One
of them held a certain estate. On his death his son succeeded.
On the death of the son, the other brother came into possession.
On his death, his son-in-law succeeded and remained in posses-
sion for about sixteen years. He performed tho funeral rites of
his father-in-law. The brother who first succeeded to the estate
left a daughter. She has applied for a certificate of heirship.
Can her claim be admitted?
A. — According to the usages of the Vairagi and the Gosavi
sects, a virtuous disciple has a better title to succeed than a
" Sapinda " relation. The disciple who performed the funeral
rites of the deceased will therefore inherit, if he be a virtuous man .
The claim of the deceased's niece, who applies for a certificate,
should be rejected as being contrary to the usages of the sect.
AhmednugguT, August ISth, 1847.
Remarks. — Virtuous here means not merely of good moral conduct, but of
adequate capacity to profit by instruction, Viram. Tr., p. 203, though in fact
the Vairagis are often grossly ignorant.
2. The adopted son of a Vairagi, who yet mingles in worldly affairs, may
succeed to his property (w).
iv) 5 C. W. R. 57, Mis. A.
(w) Mohouvt Mudhoohvn Doss v. Hurry Kishev Bhunj, C. B. A. R. for 1852.
p. 1089.
VYAV., CH. v., S. 6.] HEIRS TO A VAIRAGI. 539
(2).— GUKU.
Q. 1. — Can the Guru of a deceased Vairagi be his heir?
yl.— Yes.
Khandesh, February 5th 1857.
Authorities.— (1) Viram., f. 309, p. 2, 1. 10; (2) Vyav. May., p. 142, 1. 7.
Remark. — If such is the custom of the caste, and not, as the Sastri seems to
think, according to the Dharmasastra. See Jugdanund Gosamee v. Kessub
Nund Gosamee et al. (x).
(3).— THE FELLOW-STUDENT.
Q' 1. — Can the Gurubhau be the heir of a deceased Vairagi?
A. — Whatever property may remain after the performance of
the obsequies of the deceased should be made over to the Guru-
bhau, if the disciples are not to be found.
Ahmednuggur, April 10th, 1846.
Authority not quoted.
Q' 2. — A Vairagi of the Kama vat sect died. There are his
nephew and a Gurubhau. Which of these will be the heir?
A. — According to the customs and usages of tho sects of the
Vairagis and the Gosavis, the Gurubhau will be the heir.
Ahmednuggur, January IQth, 1849.
Authority not quoted.
(4).— THE FELLOW-STUDENT'S DISCIPLE.
Q- 1. — Can a disciple of a Gurubhau be the heir of a Vairagi?
A. — No one can be the heir of a Vairagi except his immediate
disciple. If nono such is to be found, Government should take
the property of the deceased, after defraying the expenses of his
funeral.
Ahmednuggur, 1845.
Authority not quoted.
Remark. — Contradicted by the answers to the preceding Questions.
(x) C. W. R. for 1864, p. 146.
540 HINDU LAW. [BOOK I.
Q. 2. — Can a Vairagi marry? and can his wife be his legal heir?
A. — Marriages are allowed among the Vairagis, and the wife of
one of that sect is his legal heir.
Ahmednuggur, April 6th, 1846.
Authority not quoted.
VYAV., CH. VI., S. 1.1 DISQUALIFIED PERSONS. 541
CHAPTEE VI.
PERSONS DISABLED TO INHERIT {y).
SECTION 1.— PEESONS DISEASED IN BODY OE MIND.
Q. 1. — A man has been blind of both eyes for about 16 years.
He lives with his son. The son incurred some debt for the support
of his family. A creditor attached the son's house, which was
his ancestral property. The blind father applies for the removal
of the attachment. Should it be granted?
A. — If the blindness of the father is not curable he can only
claim maintenance. Ho has no right to the property, and con-
sequently his application is not admissible. The debt, which was
incurred on account of the family must be paid from the property
of the family.
Ahmednuggur, October 9th, 1850.
Authorities. — (1) Vyav. May., p. 161, 1. 5 and 7 (see Auth. (5)); (2) p. 164^
1. 6; (3) p. 176, 1. 8; (4) f. 19, p. 2, 1. 3; (5*) Mit. Vyav., f. 60, p. 1, 1. 13 :
" ' An impotent person, an outcast and his issue, one lame, a mad man^
an idiot, a bhnd man, and a person afflicted with an incurable disease, as well
as others (similarly disqualified) must be maintained, excluding them from
participation.' 'An impotent person,' one of the third gender (or neuter sex).
' An outcast,' one guilty of sacrilege or other heinous crime. ' His issue,' the
offspring of an outcast. ' Lame,' deprived of the use of his feet. ' A mad
man,' afflcted by any of the various sorts of insanity, proceeding from air,,
bile, or phlegm, from delirium or from planetary influence. 'An idiot,' a
person deprived of the internal factulty, meaning one incapable of dis-
criminating right from wrong. ' Blind,' destitute of the visual organ.
' Afflicted with an incurable disease,' affected by an irremediable distemper,
such as marasmus or the like." (Chap. II. sec. 10, paras. 1, 2.) Under
(y) The Bmriti Chandrika, Chap. V., p. 9, teaches that the epithet "incur-
able " being attached only to " disease," the other qualifications, though not
congenital or permanent, exclude if apparent at the time of partition (becom-
ing possible). Loss of caste does not now deprive of heritable capacity.
Act. XXI. of 1850. Honamma v. Timmana Bhat, I. L. E. 1 Bom. 559.
The Roman law, after the establishment of Christianity, deprived heretics
of heritable and testamentary rights. See Cod. Lib. I. Tit V. 1. IV.
542 HINDU LAW. [BOOK I.
the term ' ' others ' ' are comprehended one who has entered into an order of
devotion, an enemy to his father, a sinner in an inferior degree, and a person
deaf, dumb, or wanting any organ. (Colebrooke, Mit., p. 360; Stokes's
H. L. B. 456.)
Eemaek. — In the case of Baboo Bodhnarain Singh v. Baboo Omrao Singh
iz), it was admitted that a woman's insanity at the time of her mother's death
excluded her from the inheritance, but opened it to her sons (a). In Daee v.
Poorshotum Gopal (b) it was ruled that a blind widow does not succeed to her
husband's property. In the case at 2 Macn. H. L. 42, it is not specified
whether a son, excluded in favor of a daughter, was insane from birth or not.
In Col. Dig., Book V., T. 320, 321, 326, 331 Comm., Jagannatha seems to
contemplate the defect that excludes as congenital, though it is not so stated;
and so as to blindness and lameness. In the present case, the property having
actually vested, the texts cited do not seem to deprive the owner. The answer
to the next question appears equally applicable to this one. In Musst. Balgo-
vinda et al. v. Lai Bahadoor et al. (c) it is ruled that subsequent insanity does
not cause a forfeiture. See Book I., p. 160, supra.
Q. 2. — A blind man inherited certain property. It cannot be
ascertained whether he and his brothers have separated. Are the
bUnd man's sons and brothers entitled during his lifetime to take
the management of the property into their hands ?
A. — The Sastras do not provide that a blind man may be dis-
possessed, of his property. If he is unable to take care of the
property, those who are united in interests with him, as his
brothers and sons, have a right to take charge of it.
Poona, January IQth, 1845.
Authorities. — (1*) Mitakshara, f. 60, p. 1, 1. 13 (see Chap. VI., sec. 1, Q. 1);
(2*) Mit. Vyav., f. 60, p. 2, 1. 7 :
" But their sons, whether legitimate or the offspring of the wife by a kins-
man, are entitled to allotments, if free from similar defects." (Col. Mit.,
p. 363; Stokes's H. L. B. 467.)
Eemarks. — 1. If the man was blind at the time the inheritance would have
devolved upon him, that circumstance would, according to some opinions, act
as a disqualification. See, however, the cases noticed under the head
" Persons disqualified to inherit," in the Introduction. Only sons by birth
and Kshetrajas are mentioned as taking the place of a disqualified father, not
sons by adoption. His sons, if he had any, would take his share.
(z) 13 M. I. A. 519.
(a) See also Prem Narain Singh v. Parasram Singh, L. K. 4 I. A. 105.
(6) 1 Borr. R. 453.
(c) C. S. D. A. R. for 1854, p. 244.
VYAV., CH. VI., S. 1.] DISEASED PERSONS. 543
2. In Bengal it was ruled that a son born to a deaf and dumb man after
the grandfather's death could not inherit (d). See the case of Baboo Bodhna-
rain Singh v. Baboo Omrao Singh (e), above, as to a woman's insanity. A
blind woman may dispose by will of property to which she is absolutely
entitled (/).
Q. 3. — Can a man claim a share of his ances.tral property, if he
is not completely blind ?
A. — A man not completely blind does not forfeit his right to a
share.
Rutnagheiry , December 12th, 1850.
Authority. — Vyav. May., p. 161, 1. 5.
Eemarks. — 1. For the Sastras mention only a Blind man as unfit to inherit.
See the definition of " a blind man " in the passage of the Mitakshara quoted
under Q. 1.
2. For the Bengal Law, see Mohesh Chunder Roy et al. v. Chunder Mohun
Roy et al. (g).
Q. 4. — A man was born lame. The creditors of his brothers
having obtained decrees against them attached the property of
the family. The lame man has filed a suit for the removal of the
attachment from a portion of the property alleged to be his share.
The question is, whether a lame man can claim his share of the
common property at a time when he is about to be deprived of
maintenance ?
A. — A sufficient means of maintenance should be reserved for
the lame member of the family, and the rest sold for the satisfac-
tion of the decrees of the creditors (h).
Rutnagherry , May 19th, 1853.
Authorities.— (1) Vyav. May., p. 161, 1. 5 (see Auth. (2)); (2*) Mit. Vyav.,
f. 60, p. 1, 1. 13 (see Chap. VI., sec. 1, Q. 1).
(d) Pareshmani Dasi v. Dinanath Das, 1 Beng. L. R. A. S. C. 117.
(e) 13 M. I. A. 519.
(/) Bai Benkor v. Jeshankar, Bom. H. C. P. J. for 1881, p. 271.
{g) 23 C. W. R. 78.
{h) This and other cases of maintenance are discussed in Lakshman v.
Satyabhamabai, I. L. R. 2 Bom. 494 to the effect that the active members may
deal with the whole property in honest transactions for the common benefit.
See above, pp. 241, 264-6, 266.
544 HINDU LAW. [book 1.
Q. 5. — If a man's brother's son is afSicted with black leprosy,
can he claim his share of the family property from his uncle, who
is united in interests with him ? If not, can his mother claim it ?
If neither can, will it be obligatory upon the uncle to support the
mother and her son affected with the disease? If the share
which they otherwise would have claimed is not sufficient to pro-
vide a suitable maintenance for them, can the uncle be obliged to
make it up from his own means ?
A. — A person, afflicted with black leprosy, and his mother
have no right to any share. If the share which would have fallen
to them is not sufficient to provide a suitable maintenance for
them, the uncle must make it up from his own means.
Rutnaghen-y , Aug-ust 1st, 1855 (z).
Authorities.— (1*) Mit. Vyav. f. 60, p. 1, 1. 13 (see Chap. VI., sec. 1, Q. 1) ;
(2) Vyav. May., p. 161, 1. 3 and 8 (see Auth. 1) ; (3) p. 164, 1. 1 :
Devala : " "When the father is dead (as well as in his lifetime), an impotent
man, a leper, a mad man, an idiot, a blind man, an outcast, the offspring of
an outcast, and a person fraudulently wearing the token (of religious mendi-
city) are not competent to share the heritage." (Borradaile, p. 133; Stokes's
H. L. B. 109.)
Kbmaek. — It is only in a virulent form that leprosy disqualifies (k).
Q. 6. — Can a dumb or a mad man claim the property of his
ancestors, or does his claim extend to a maintenance only?
Should the persons so defective be married ? If they die leaving
widows, have their widows the same right of adoption as other
widows ?
A. — If a person is mad or dumb from the time of his birth, he
cannot claim tlie property of his ancestors, though he may
claim a maintenance from it. There is no objection to a person
of this description being married. His widow may adopt a son. .
Tamm, January, 20th, 1857.
Authorities.— (1) Mit. Vyav., f. 60, p. 1, 1. 13 (see Chap. VI., sec. 1, Q. 1);
(2*) f. 60, p. 2, 1. 4 :
" For Manu says : It is fit, that a wise man should give all of them food and
(t) This case illustrates what is said above, pp. 232, 241, 242.
(fc) Muttuvelayudu v. Parasakti, M. S. E. for 1860, p. 239; Anant v.
Ramahai, I. L. K. 1 Bom. 554.
A leper could not inherit in Normandy, nor could he inherit gavelkind land
in England down to the reign of John. See Elton's Ten. of Kent, 96.
VYAV., CH. VI., S. 1.] INSANE PERSONS. 545
raiment, without stint, to the best of his power; for he who gives it not shall
be deemed an outcast." (Manu IX. 202; Col., Mit., p. 363, Chap. II., sec. 10,.
para. 5; Stokes's H. L. B. 456.)
(3*) Mit. Vyav., f. 60, p. 2, 1. 12 :
" Their childless wives, conducting themselves aright, must be supported " (1).
(Col., Mit., p. 363, Chap. II., sec. 10, p. 14; Stokes's H. L. B. 457.)
Eemarks. — See Q. 2. There is no special rule regarding adoptions to be
made by the widows of men excluded from inheritance ; but see Q. 2, and Mit.,
Chap. II., sec. 10, pi. 9, quote4 under Q. 8. If the excluded person cannot
adopt so as to give a heritable right, neither, it would seem, can his widow.
See Q. 8.
2. A deaf and dumb man having been excluded from an inheritance which
was taken by his brother, a son subsequently born to the former was held not
entitled to the share of his father which he might have obtained if born before
his grandfather's death (w).
Q. 7. — A deceased person has left a son who is insane. His
nephew has apphed for a certificate of heirship. Can it be
granted ?
A. — As the son is insane, and as the nephew and he are united
in interests, there is no objection to the nephew being declared an
heir.
Rutnagherry, August 20fh, 1846.
Authority. — Mit. Vyav., f. 60, p. 1, 1. 13 (see Chap. VI., sec. 1, Q. 1).
Kemark. — Subsequent insanity does not cause forfeiture (n).
Q^ S, — A son of an insane Sudra has brought an action for the
recovery of certain immovable property, consisting of land held
in Inam and other tenures, alleged to belong to his grandfather.
The question is, whether he has a right to do so?
A. — A son of an insane person has a right to sue for the recovery
of immovable property of his grandfather.
Tanna, October, SOth, 1856.
(l) Gangabai v. Naro Moreshvar et al., S. A. No. 94 of 1873, Bom. H. C. P.
J. F. for 1873, No. 95.
(w) Bapuji V. Pandurang, I. L. E. 6 Bom. 616, citing Kalidas Das v. Krishan
Chundra Das, 2 B. L. E. 103 F. B. See Q. 8. The blood is in a manner
attainted as under the English common law in a case of treason or felony, but
only as to rights of inheritance subsequently arriving at completion.
(n) Must. Balgovinda et al. v. Lai Bahadoor et al., Cal. S. E. for 1854,
p. 244.
35
H.I.
546 HINDU LAW. [BOOK I.
Authorities.— (1) Mit. Vyav., f. 50, p. 1, 1. 7 (see Chap. II., sec. 1, Q. 1);
(2*) f. 60, p. 2, 1. 7 :
" The disinherison of the persons above described seeming to imply disin-
herison of their sons, the author adds : But their sons, whether legitimate, or
the offspring of the wife by a kinsman, are entitled to allotments, if free from
similar defects." (Colebrooke, Mit., p. 363, Chap. II., sec. 10, para. 9;
Stokes's H. L. B. 457.)
Eemarks. — It has been ruled that a man having been disqualified when the
succession opened, his sons not then born or begotten are also excluded from
the inheritance (o).
2. In the case of Ram Soondar Roy v. Ram Sahaye Bhugut (p), a suit was
brought on behalf of a lunatic to set aside a sale of family property by his son.
Had the lunatic been sane his suit would have been barred by limitation. It
was held that as he was entitled only to maintenance under Mit., Chap. II.,
sec. 10, paras. 6 and 9, he had not a locus standi to sue for the property of
which in a partition he would get no share. His suit was dismissed. In
Bombay it is probable that if any fraud on his right could be proved his main-
tenance would be made a charge on the estate (q).
SECTION 2.— ILLEGITIMATE CHILDEEN (r).
Q. 1. — Can an illegitimate son of a deceased Gujarathi
Brahman succeed as a legal heir to his property, when there
is no other heir of the deceased ?
A. — An illegitimate son of a Brahman, a Kshatriya, or a Vaisya,
cannot be a legal heir of his father. He and his mother, if well
(o) Pareshmani Dasi v. Dinanath Dass, 1 B. L. E. 117 A. C. ; Kalidas Das
et al. V. Krishan Chundra Das, 2 B. L. R. 103 F. B. See Mit., Chap. II.,
sec. X., paras. 9-11; Datt. Chand. sec. VI., para. 1; Col. Dig., Book V.,
Chap, v., T. 320, 326 Comm. ; Vishnu, XV., 35, 36. By custom in some
castes adoption by a qualified person or by his wife on his behalf, with or
without the consent of relatives or of the caste, is allowed. See Steele, L. C.
43, 182.
ip) I. L. R. 8 Cal. 919.
iq) See above, pp. 241, 256.
(r) In the case of Muttuswamy Jagavera Yettappa v. Vencataswara Yettaya,
12 M. I. A. 203, a maintenance, was awarded to an illegitimate son of a brother.
An illegitimate son of a Khatri, one of the three regenerate castes, by a Sudra
woman, cannot succeed to the inheritance of his putative father, but is entitled
to maintenance out of his estate, Chouturya Run Murdun Syn v. Saheh Pur-
hulad Syn, 7 M. I. A. 18. The child of an incestuous intercourse has no right
of inheritance, D. Parisi Nayudu v. D. Bangaru Nayudu, 4 M. H. C. R. 204;
nor has the child begotten in adultery, see pp. 83, 415, supra; Rahi v. Govind,
I, L. R. 1 Bom. 97. But he is entitled, among the Sudras, to maintenance
out of his father's estate, Viraramuthi Udayan v. Singaravelu, I. L. R. 1 Mad.
306.
VYAV., CH. v., S. 2.] ILLEGITIMATE CHILDREN. 547
behaved, can claim a maintenance only from the property of the
deceased. The rest of the property should be given to the
Sapinda relations. If the property belongs to a learned Brah-
man, it should, in the absence of relations, be given to learned
Brahmans. A king has a right to take intestate property when
it does not belong to a learned Brahman.
AhmednugguT, September 2Srd, 1847.
Authorities.— (1) Manu IX. 155 (see Auth. 2); (2*) Mit. Vyav., f. 55, p. 1,
1. 11 (see Chap. II., sec. 3, Q. 1); (3*) Vyav. May., p. 140, 1. 1 (see Chap. II.,
sec. 14 I. A. 1, Q. 1, p. 463).
Eemark. — At present a Brahman's property escheats to the Crown. See
Collector of Masulipatam v. Cavaly Venkut Narainappa (s); see also Chap. II.,
sec. 3.
Q. 2. — A Brahman died without male issue. A " Sapinda "
relation of his performed his funeral rites. The deceased has
left three sons by a kept woman. They alleged that they
rendered useful service to the deceased, and obtained from him
the gift of his property. In support of this allegation they have
no documentary evidence to adduce. Who should be considered
the heirs? the sons or the " Sapinda " relations who performed
the funeral rites?
A. — The son of a woman kept by a man of the Brahman,
Kshatriya, or Vaisya castes, cannot be his heir. With regard to
these three castes, a relation of a deceased person is his heir. If
an illegitimate son of any of these castes be a useful servant, he
may be allowed a suitable maintenance. He can also keep what-
ever property the deceased may have given him in free gift. In
the case under reference, the sons could not produce any docu-
mentary evidence to prove the alleged gift, and as a gift of this
kind would not be legal, the sons cannot be considered the heirs
of the deceased, but if they are obedient servants, they may be
supported.
Tanna, 1847.
Authorities.— (1*) Mit. Vyav., f. 55, p. 1, 1. 11 (see Chap. II., sec. 3, Q. 1);
(2*) Vyav. May., p. 140, 1. 1 (see Chap. II., sec. 14 I. A. 1, Q. 1, p. 435).
Remarks.— 1. If it could be proved that the deceased had made a gift of
(s) 8 M. I. A. 500.
548 HINDU LAW. [book I.
his property to his illegitimate sons, the gift would be legal, since an unmarried
man may do what he likes with his property.
2. A man of one of the superior castes may make a grant to an illegitimate
son for his maintenance, which an after-born legitimate son cannot disturb (t).
The rule is general as to any gift completed by possession (v).
SECTION 3.— PEESONS LABOUEING UNDEE MOEAL
DEFICIENCIES.
a. — The Enemy of his Father.
Q. 1. — A father says that his son is inimically disposed towards
him; that he not only abuses him, but assaults him, and
threatens him with death; that he once actually attempted his
life and drove him out of his house, telling him to perform the
Sraddha of his grandfather in a temple ; that he is very ignorant
and has dissipated a good deal of the ancestral property; and that
if a share of property should now be given to him he would
squander it also. The father therefore wishes that his son should
not be allowed to claim a share of his property, but a maintenance
only. Suppose the father has shown that certain of his accusa-
tions are substantially true, should the son therefore be prohibited
from claiming a share, and should it be decided that he could
claim nothing more than a maintenance? If, on the contrary,
it appears that the father hates the son, and contrives to deprive
him of the share of the property, that he abuses and assaults his
son, and that what the son does is merely in self-defence, can the
son then claim a share of the ancestral property from his father?
What is the definition of enmity towards one's father? and is a
person entertaining it to be deprived of all share in his father's
property only, or in all property, whether it be his father's or that
of his ancestors?
A. — A person who entertains enmity towards his father (w),
and the one who labours under the defect of impotency, &c., are
precluded from claiming shares. If the son is shown to be ill-
disposed towards his father, or insane, or too ignorant to be
trusted with property, he cannot claim any share, but mainten-
(t) Rajah Parichnt v. Zalim Singh, L. R. 4 I. A. 159.
(v) Rambhat v. Lakshman, I. L. R. 5 Bom. 630; see above, pp. 254-5.
(to) A father cannot disinherit a son properly adopted except for special
reasons, Daee v. Mothee Nathoo, 1 Borr., at p. 87.
VYAV., CH. VI., S. 3.] ENEMY TO FATHER. 649
ance only. If the father hates, abuses, and assaults his son, and
the son does the same for self-defence, he cannot be said to be
the enemy of his father. If the father contrives to deprive him of
his rights, the father must be considered the enemy of his son.
If the enquiry into the matter shows that the son is not an
adversary of his father, he can claim from his father a share of
the property of his ancestors. The enmity towards one's father
is not exemplified in the Sastras, but it is merely said that a son
who hates or injures his father is his enemy (jc).
Rutnagherry, August 24:th, 1850.
Authorities. — (1*) Mit. Vyav., f. 60, p. 1, 1. 13 (see Chap. VI., sec. 1,
Q. 1); (2*) f. 50, p. 1, 1. 7 (see Chap. II., sec. 1, Q. 1); (3) Vyav. May.,
p. 161, 1. 8 (see Auth. 1) ; (4) p. 94, 1. 1 ; (5) p. 94, 1. 2 (see Auth. 2) ; (6) p. 84,
1. 4; (7) p. 91, 1. 2:
" The father and sons are equal sharers in houses and lands derived regu-
larly from ancestors ; but sons are not worthy (in their own right) of a share
in wealth acquired by the father himself, when the father is unwilling."
(Borr., p. 54; Stokes's H. L. B. 48.)
Eemarks. — 1. A son by birth or adoption can, for adequate reasons, be dis-
inherited; but the course of devolution prescribed by the law cannot be altered
by a private arrangement; on the son's disherison the son's son becomes his
grandfather's lawful heir (y).
2. A son was disinherited and afterwards restored, in Musst. J ye Koonioar v.
BhAkaree Singh (z).
3. The sons of outcasts born before their fathers' expulsion are not outcasts
but take their fathers' places. Sons born after expulsion are outcasts, but
Mitramisra says a daughter is not, for " she goes to another family," Viram.
Tr., p. 254 (a). That man is in a special degree an enemy of his father who
cannot or will not perform the religious ceremonies by which the father is to
benefit, see Col. Dig., Book V., T. 320, Comm. Comp. Viram. Transl., p. 256.
(x) " Jure etiam 'pro tacite exheredato hahehitur qui grave crimen commiserit
in patrein si nulla sunt condonatce culpae indicia,'' Grot. L. II., C. VII. 25,
and the references to the Civil Law. Translation : " He is also held as tacitly
disinherited by operation of law, who has been guilty of a grave offence against
his father, there being no proof of subsequent condonation." The Eoman law
imposed no restraints on an unamiable father. At Athens it seems to have
been much the same down to Solon's times. Thenceforward public notice of
disinheritance had to be given. See Schoemann, Ant. Gr. 502. Zachariae
His. J. Graec. Eom. Tit. II. shows the gradual modifications of the patria
potestas.
iy) Balkrishna v. Savitribai, I. L. K. 3 Bom. 54.
(z) 3 Mor. Dig., p. 189, No. 27.
(a) With this may be compared the early English law exempting already
born children from their father's outlawry which the after-born ones had to
share. See Bigelow, Hist, of Proc, p. 348.
550 HINDU LAW. [BOOK I.
h. — Persons Addicted to Vice.
Q. 1. — A man has a son, but as he was addicted to gambhng
and opium-eating, the father has constituted his grandson his
next heir. Can he legally do so?
A. — It is quite legal for the father to disinherit his son on the
ground of his misconduct, and to appoint his grandson to be his
heir.
Amhedabad, March 1th, 1856.
Authorities.— (1) Mit. Vyav., f. 45, p. 2, 1. 8; (2*) Mit. Vyav., f. 60, p. 1,
1. 13 (see Chap. VI., sec. 1, Q. 1); (3) Vyav. May., p. 163, 1. 3 :
" If there be other sons endowed with good qualities the inheritance is not
to be taken by a vicious one ; for says Manu — ' all those brothers who are
addicted to any vice lose their title to the inheritance.''* (Borr., p. 132;
Stokes's H. L. B. 109.)
Remark. — This opinion has in several forms been repeated in other cases.
It cannot, however, be received without a safeguard against caprice and an
appeal to the Civil Court. See 1 Str. H. L. 157.
Q. 2. — A Paradesi had acquired some movable and immov-
able property before his death. He had a wife and two sons.
One of these sons was addicted to gambling and other vices. He
contracted some debts and died. The property of the Paradesi
was not divided. His deceased son had acquired no property.
The question is, whether the creditor of the deceased son can
recover the debt from the Paradesi 's property? The mother of
the deceased son states that her son was a man of bad character,
and therefore he was not entitled to any share of his father's
property. Is her objection legal?
A. — The son was addicted to grambling and other vices. The
debt contracted by him was not on account of the family. The
creditor cannot therefore have his claim satisfied from the
deceased's share of the common property. The objection of the
mother that her son is not entitled to any of the father's property
is valid.
Khandesh, August 1th, 1849.
Eemark. — See the preceding case. "The father shall not pay his . sons'
debts; but a son shall pay his father's." Narada, Part II., Chap. III., si. 11;
so held in the case of Udaram v. Ranu Panduji et al. (h).
(b) 11 Bom. H. C. R. 76.
VYAV., CH. VI., S. 3.] PERSONS ADDICTED TO VICE. 651
Q. 3. — A man had four sons. One of them was a man of bad
character. The father therefore excluded him from all participa-
tion in his property, and left a direction in his will that the share
due to him should be given to his son. The son protested against
the validity of the will on the ground that his father was 60 years
old at the time of the will, that his hand used to shake, and that
the will does not bear his signature. Is it lawful in a father to
assign only maintenance to his son, and to bestow his share upon
his grandson?
A. — A father is at liberty to distribute the property acquired
by himself among his sons in such a manner as he pleases. If one
of his sons is insane, or addicted to vicious habits, or hostile, or
disobedient to his father, he cannot be allowed a share of his
father's property, but a maintenance only. His share would pro-
perly be given to his son. The will is not invalid merely because
the father being very old could not sign it himself, but desired
some other person to sign it for him.
Ahmednuggur', January 25th, 1859.
Authorities. — (1) Vyav. May., p. 163, 1. 3 (see Chap. VI., sec. 3 h, Q. 1);
(2) p. 161, 1. 7 and 8; (3) f. 47, p. 1, 1. 7; (4) f. 47, p. 2, 1. 16; (6) f. 46, p. 2,
1. 2; (6) f. 50, p. 1, 1. 1; (7) f. 22, p. 1, 1. 2; (8) f. 32, p. 1, 1. 9; (9) f. 32, p. 2,
1. 6 and 8; (10) f. 60, p. 1, 1. 13 (see Chap. VI., sec. 3 , Q. 1) ; (11) Mit. Vyav.,
f. 60, p. 2, 1. 1 :
Narada also declares : " An enemy to his father, an outcast, an impotent
person, and one who is addicted to vice, take no share of the inheritance, even
though they be legitimate ; much less if they be sons of the wife by an appointed
kinsman." Mit., Chap. II., sec. X., para. 3. (Colebrooke, Inh. p. 361.)
Kemark. — The father has no right to disinherit any one of his sons without
reason, and consequently a will to this effect is void according to Hindu Law.
(See Book II., Chap. I., sec. 2, Q. 4, 5, 8.; Mitramisra quotes Apastamba to
the effect that an outcast is deprived of his right to inherit, and Brihaspati and
Manu (see Q. 1) to show that a son incapable of offering funeral oblations is
disqualified for the inheritance which is the proper remuneration for the
performance of this duty. " Those," he says, " who are incapable of perform-
ing the rites enjoined by the Sruti and the Smriti, as well as those that are
addicted to vice are disentitled to shares." Viram. Transl. 256. Hence
degradation from caste caused an extinction of property (c), but without
serving as a cause of retraction when the share had once been assigned and
taken (d).
(c) See P C. in Mornram Kolita v. Kerry Kolitany, L. R. 7 I. A., at p. 146,
(d) Ihid.
552 HINDU LAW. [BOOK I
c. — x\dulteresses and Incontinent Widows.
Q. 1. — Can a man's wife, who has been guilty of adultery, lost
her caste and left her husband, be his heir?
A. — If the ceremony of Ghatasphota (divorce) has been per-
formed, the wife cannot be the heir.
Ahmednuffgur, June 17th, 1846.
Authority. — Vyav. May., p. 134, 1. 6:
" The wife, faithful to her husband, takes his wealth ; not if she be unfaithful ;
for it is declared by Katyayana : ' Let the widow succeed to her husband's
wealth, provided she be chaste.' " (Borr., p. 100; Stokes's H. L. B. 84.)
Eemark. — A wife guilty of adultery cannot inherit from her husband, whether
the Ghatasphota has been performed or not. But there must be positive proof
or at least very well grounded suspicion (e).
Q. 2. — Can the wife of a deceased Vairagi, who forsook him
without obtaining a written permission from him, and conducted
herself as a prostitute for twelve years, become his heir?
^.— No.
Dharwar, March Wth, 1860.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 6; (2*) Vyav. May., p. 134, 1. 6
(see Chap. VI., sec. 3 c, Q. 1).
Q. 3. — A widow bore a son two years after her husband's
death. Can she claim the property of her husband?
A. — A widow of bad character has no right to claim the property
of her husband.
Dharwar, May 10th ^ 1850.
Authorities.— (1) Mit. Vyav., f. 56, p. 2, 1. 5; (2*) Vyav. May., p. 134,
1. 6 (see Chap. VI., sec. 3 c, Q. 1).
Eemark.— See below, Q. 6, Eemark.
(e) Ramia v. Bhgi, 1 Bom. H. C. E. 66.
VYAV., CH. VI., S. 3.] INCONTINENT WIDOWS. 558
Q. 4. — A deceased person has left distant cousins, the descen-
dants of the fourth ancestor, and a widow, who, on account of her
incontinency and pregnancy after the death of her husband, has
been refused communication with the caste. Which of these will
be his heir?
A. — Should the cousins and the decea&ed have lived together as
an undivided family, the cousins will be the heirs. If they were
separate, the widow of the deceased, notwithstanding her bad
character, will be the heir.
Poona, August 31st, 1848.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1 ; (2) f. 60, p. 2, 1. 2 ; (3*) Vyav.
May., p. 134, 1. 6 (see Chap. VI., sec. 3 c, Q. 1).
Eemabk. — The widow cannot inherit if she has been guilty of adultery before
her husband's death. For the effect of her incontinence after his death, see
Q. 6.
Q. 5. — Can a Brahman widow, who is guilty of adultery claim
her husband's vatan?
A. — No; by her misconduct she has forfeited her right.
Ahmednuggur, 1845.
Authority. — Vyav. May., p. 134, 1. 6 (see Chap. VI., sec. 3 c, Q. 1).
Q. 6. — A woman of the Dorik caste, having lost her husband,
became the mistress of a man of (another) Sudra caste, and had
a daughter by him. Can she claim to be the heir of her husband?
A. — A woman who was chaste at the death of her husband
becomes his heir.
Khandesh, January 4:th, 1851.
Authority.— Vyav. May., p. 134, 1. 4; Mit. Vyav., f. 55, p. 2, 1. 1 (see
Chap. I., sec. 2, Q. 4).
Remarks.— 1. According to Strange, El. H. L., adultery divests the right
of a widow to inherit after it has vested. See Steele, 35, 36, 176.
2. On the other hand, the Sastri's opinion seems to be supported by the
Viramitrodaya, where it is said, f. 221, p. 2, 1. 8 : " And these persons (those
disabled to inherit) receive no share only in case the fault was committed or
contracted before the division of the estate. But after the division has been
made, a resumption of the divided property does not take place, because there
554 HINDU LAW. [BOOK I.
is no authority (enjoining such a proceeding)." It is only through an exten-
sion by inference of the rule of exclusion that it is made to include females,
who are therefore equally entitled to the benefit of the exception with the males
specified, see Vir. Transl. 253, which allows an outcast to recover his rights
by performing the proper penance. See Mitakshara, Chap. II., sec. 10, pi. 6;
Stokes's H. L. B. 456. Colebrooke, quoted in 2 Strange, H. L. 272, lays down
the principle that after the estate has once vested it can be forfeited only by
loss of caste. A woman would in general be expelled from caste for proved
incontinence, and hence Sir T. Strange (p. 164) has inferred that a widow
holds " dum casta fuerif only; but the authorities quoted by Colebrooke do
not support the view that any forfeiture of property necessarily attends expul-
sion from caste. It would follow as a necessary consequence in the case of a
member of an undivided family, as all the property would be appropriated by
those members who remained in communion with the caste ; but this would
not be so in the case of a separated person (/).
3. The Mitakshara, while it excludes the outcast from participation, adds :
" But one already separated from his coheirs is not deprived of his allotment,"
Mit., Chap. II., sec. 10, pi. 5, 6 ; Stokes's H. L. B. 456. And now by Act XXI.
of 1850, expulsion from caste causes no deprivation of any right of inheritance.
At the same time a widow, who remarries, forfeits her widow's estate under
Act XV. of 1856. Thus subsequent unchastity does not divest her, but
remarriage does (g). In the case at 2 Macn. Prin. and Prec. of Hindu
Law, 19, the Sastri seems to have held that subsequent incontinence defeated the
widow's estate, but " an estate once vested by succession or inheritance is not
divested by any act which before succession or incapacity would have formed
a ground for exclusion from inheritance " (h).
4. Subsequent unchastity does not divest an estate vesting in a mother (i).
In the case of Advyappa v. Rudrava (k) it is ruled that incontinence does not
affect a daughter's succession to her father's estate among Lingayats. See
same case, p. 118, as to the similar rule in the case of a mother. This was
followed in Kojiyadu v. Lakshmi (1). The disqualification of an incontinent
mother to inherit from her son is expressly declared in Ramnath v. Durga
(m). It does not prevent a widow's inheriting from her maternal grand-
(/) Under the English Law, Freebench, as it is called, " is generally an
estate for life. In many manors it is forfeited by incontinency or a second
marriage ... If a widow is found guilty of incontinency she loses her free-
bench unless she comes into Court riding upon a black ram and repeats certain
words," 1 Cruise's Dig. 285.
The widow takes as dower a moiety of gavelkind lands, but her estate is
divested by her remarriage or incontinency. Elt. T. of Kent, 87.
ig) Parvati v. Bhiku, 4 Bom. H. C. E. 25 A. C. J. ; AhUram Das v.
Shriram Das et al., 3 Beng. L. K. 421 A. C. ; S. Matangini Debt v. S. Jaykali
Dehi, 6 ibid. 466.
(h) P. C. in Moniram Kolita v. Kerry Kolitany, L. K. 7 I. A. 115, in appeal
from 13 Beng. L. E. 1. So Bhawani v. Mahtab Kuar, I. L. E. 2 All. 171;
Nehalo v. KisJien Lall, I. L. E. 2 All. 150.
(t) Musst. Deokee v. Sookhdeo, 2 N. W. P. E. 361.
(&)'L L. E. 4 Bom. 104.
(l) I. L. E. 5 Mad. 149.
(m) I. L. E. 4 Cal. 550.
b
VYAV., CH. VI., S. 3.] INCONTINENT WIDOWS. 556
mother (n). Incontinence is held to prevent one widow getting her share from
the other (o). Compare 2 Macn. H. L. 133, cited in the Introduction; compare
also the case under the Bengal Law of two daughters inheriting jointly from
their father, and on the death of one leaving a son while the other is a childless
widow, the latter 's inheriting, notwithstanding a state has supervened which
would have originally been a disqualification (p). The daughter's right to
inherit arises in cases of a disqualification of the widow through incontinence.
Smriti Chandrika, Chap. X., sec. 2, gara. 22.
5. In Honamma v. Timanabhat et al. (q), it is laid down that a bare main-
tenance awarded as such is not forfeited by subsequent incontinence. Sir T.
Strange, 1 H. L. 172, thought it was doubtful. At 2 Str. H. L. 310, Cole-
brooke, referring to Mitakshara, Chap. II., sec. 1, p. 17, says that brethren are
not bound to maintain the unchaste widow of their childless brother. Several
cases to the same effect are cited in Norton, L. C. 37. The Vyavahara
Mayukha, Chap. IV., sec. 8, pi. 6 and 8, and the Mitakshara, Chap. II.,
sec. 1, pi. 7, relying on a passage of Narada, seem to consider that unchastity,
distinguishable from the mere perverseness of pi. 37, 38 of Mitakshara,
Chap. II., sec. 1, causes a forfeiture of the right to maintenance. So too the
Viram. Tr., p. 143, 153, 174, 219, and the Smriti Chandrika, Chap. XI., sec. 1,
para. 49. Good character is insisted on as a condition of the right by the
Sastri; above, p. 354, Q. 25. The distinction between the two degrees of mis-
conduct is very clearly taken in Mitakshara, Chap. II., sec. 10, pi. 14, 15 (see
also Col. Dig., Book V., T. 414, Com.), from which it appears that in the
case of wives of disqualified persons, those merely perverse or headstrong,
must be supported, but not those actually unchaste. The case of an adulterous
wife and mother are provided for by special texts, and Mitramisra insists on
the distinction, Viram. Tr., p. 153. The outcast mother is not outcast to
her son, and the outcast wife is not a trespasser in her husband's house (r)
though to be kept apart : Narada, Pt. II., Chap. XII., si. 91; Manu, cited in
2 Macn. H. L. 144. In his answer to Chap. IV. B., sec. 1, Q. 1, the Sastri
seems to have considered that a woman of abandoned character could claim no
more than maintenance out of her mother's estate. A share or an allowance
assigned to a widow in an undivided family by way of maintenance is resumable
on her grossly misbehaving, according to the Smriti Chandrika, Chap. XI.,
sec. 1, paras. 47 and 48. The view here taken has very recently been con-
firmed by the decision in Valu v. Ganga (s) in which the Court declined to
follow Honamma v. Timanabhat.
6. The adulteress may claim bare subsistence from her husband only, Smriti
Chandrika, Chap. XI., sec. 1, para. 49, but not while she lives apart (t), nor can
(n) Musst. Ganga Jati v. Ghasita, I. L. E. 1 All. 46.
(o) Rajkoonwaree Dassee v. Golabee Dassee, C. S. R. for 1858, p. 1891.
(p) Vyav. Darp. 170; Amrit Lai Bhose v. Rajoneekant Mitter, L. R.
2 I. A. 113.
(g) I. L. R. 1 Bom. 559.
(r) The Queen v. Marimuttu, I. L. R. 4 Mad. 243.
is) Bom. H. C. P. J. 1882, p. 399.
(t) A claim for maintenance by a wife was disallowed, she not having shown
sufficient reason for her desertion or absenting herself from her husband,
Narmada v. Ganesh Narayen Shet, Bora. H. C. P. J. for 1881, p. 215. This
556 HINDU LAW. [book I.
a woman, who has obtained a Soda-chiti (divorce) from her husband, sue him
for maintenance (v). An unjustified withdrawal from her husband suspends
her right (w) ; a severer rule applies to a wife guilty of other misbehaviour (x).
A daughter living apart from her father for no sufficient cause cannot exact
maintenance from him (y).
7. It is an offence punishable under the Penal Code, sec. 494 as to the
woman, under sec. 497 as to the man, to marry the wife of a Hindu not
divorced and without the first husband's consent, Reg. v. Bai Rupa (z). A
woman thus married is entitled to maintenance (as a concubine), Khemkor v.
Umiashankar (a); so is a concubine, Vrandavandas v. Yemanahai (h).
Q. 7. — A widow, who had no sons, and who was faithless to her
husband, assigned her husband's immovable property as security
for a debt due to his creditor. Her sister-in-law objected, on the
ground of the inability of a faithless wife to mortgage her
husband's property. What are the rules of the Sastras on the
subject?
applies equally to any wife wrongfully withdrawing, Kasturhai v. Shivajiram
Devkuran, I. L. K. 3 Bom., at p. 382.
(v) Bhasker v. Bhagu, S. A. No. 298 of 1876, Bom. H. C. P. J. F. for 1876,
p. 273. A divorced woman is not entitled to maintenance, Muttammal v.
Kamakshy Ammat et ah, 2 Mad. H. C. K. 337.
(w) Mudvallappa v. Gursatava, S. A. No. 307 of 1872, Bom. H. C. P. J. F.
for 1872, No. 1; Narmada v. Ganesh Naranyanshet, supra; Viraswami Chetti
V. Appaswami, Chetti, 1 M. H. C. E. 375 ; Sidlingapa v. Sidava, Bom.
H. C. P. J. F. for 1878, p. 77; S. A. No. 307 of 1872; Mudvalappa v.
Gursatava, Bom. H. C. P. J. F. for 1873, p. 1. According to Steele, L. C.
p. 32, repudiation without maintenance is allowable only in those cases which
involve complete loss of caste, such as adultery with a man of lower caste,
procuring abortion, or eating forbidden food. In other cases a penance restores
the erring wife to her position. Should the husband desert his wife she is
entitled to maintenance to the extent of one-third of his property, Ramahai v.
Trimhak Ganesh Desai, 9 Bom. H. C. E. 283, and Gangaba v. Naro Moreshwar,
Bom. H. C. P. J. for 1873, No. 95. See Col. Dig., Book IV., T. 72. In the
answer at 2 Str. H. L. 309, the Sastri says that a son must give his mother
a bare subsistence even though she be an adulteress. Colebrooke quotes the
Mit., Chap. II., sec. 1, para. 7, to show that brethren are not bound to main-
tain their brother's unchaste widow. He doubts if there is an authority
imposing on the son a legal obligation to support an adulterous mother; but
Manu and other rishis prescribe the duty under all circumstances. See above,
pp. 263, 366, and Manu II. 225, 235.
(x) Shriput V. Radhabai, Bom. H. C. P. J. F. 1881, p. 163; Narmada v.
Ganesh Narayan, supra.
iy) Ilata Shavatri et al. v. Ilata Narayanan Nambudiri, 1 M. H. C. E. 372.
(z) See to the same effect Reg. v. Kassan Goja, 2 Bom. H. C. E. 117.
(a) 10 Bom. H. C. E. 381.
ib) 12 Bom. H. C. E. 229.
VYAV., CU. VI., S. 3.] INCONTINENT WIDOWS. 557
A. — A woman, who has no sons and is guilty of adultery, can-
not have any claim to her husband's movable or immovable pro-
perty, although he may have lived separate from other members
of his family. Those, who are his legal heirs, entitled to take his
property, should liquidate his debt.
Ahmednuggur, September Srd, 1847.
Authorities. — (1) Vyav. May., p. 134, 1. 6 (see Chap. VI., sec. 3 c, Q. 1) ;
(2) p. 135, 1. 7§ (3) p. 155, 1. 5; (4) p. 159, 1. 5; (5) p. 181, 1. 5; (6) Mit.
Vyav., f. 12, p. 1, 1. 10.
Q. 8. — Can a widow, who has re-married, inherit the property
of her former husband? If the widow has some children by her
first husband, and if they are left under the protection of her
husband's brother, can the brother in his capacity of guardian
claim his deceased brother's property, or should it be given to his
widow who has re-married?
A. — A widow, who re-marries, cannot be considered a faithful
wife. She cannot therefore claim the property of her first
husband. If she has some children by her first husband, and if
they are left with her husband's brother, he can claim the property
of the deceased.
Sadr Adalat, July SOth, 1849.
Eemark. — The case would fall under Act XV. of 1856, and the Sastri's
decision seems to agree with sec. 2 of that Act. See also Chap. II., sec. 6 B.
BOOK 11.
PARTITION.
Definition.
§ 1. The Law of Partition is the aggregate of the rules, which,
when a Hindu family (a), living in union, separates, determine the
duties and rights of its several members with respect to the
common property and liabilities (b). The basis of this law is the
(a) In the case of Raj Bahadur v. Bishen Dayal, I. L. E. 4 All. 343, it was
recently held that the Hindu law applies of its own force only to an orthodox
Hindu. This rule literally applied would exclude from the operation of the
Hindu law Jains, Lingayats, and other sects of dissenters. But Hinduism is
a matter of race as well as of religion, and the Hindu law, as we have seen,
allows all classes of Hindus to be governed by their own customs when these
differ from the general law. This is the basis of the customary law of castes
(see Mathura Naikin v. Naikin, I. L. E. 4 Bom. 545), according to the Hindu
view of the matter, and the indulgence extends even to the established usage
of a family. In the case referred to, the High Court at Allahabad found a
similar rule applicable to a Hindu family half -con verted to Mahomedanism,
as a law of " justice, equity and good conscience," and upheld a claim for
partition according to the Hindu law, because as to inheritance the family
had adhered to that law. The case of Abraham v. Abraham, 9 M. I. A. 195,
is cited, but that of the Khojas and Memons, Perry, Oriental Cases, 110, is
not referred to. Cutchi Memons and Khojas retain by custom some Hindu
laws of Inheritance, but are otherwise governed by the Mahomedan law; In
re Haji Ismail, I. L. E. 6 Bom. 452; Ahmedbhoy Hubibhoy v. Valleebhoy
Casumbhoy, ibid. 703. Mere apostasy does not free from the Hindu marriage-
law. See Government of Bombay v. Ganga, I. L. E. 4 Bom. 330; Act. XXI.
of 1866. In Madras a view has been taken which would enable an associa-
tion for almost any purpose to give itself rules analogous to those of the
ordinary Hindu law. See below the case of the dancing women.
(b) By the Civil Law, partition is regarded as a kind of exchange. Hence
an hypothecation of any share, validly created, subsists on all the shares after
partition. " The doctrine of the old French law was, on the other hand, that
a partition had no relation either to the contract of exchange, or to the contract
of sale; that it was not in the nature of a purchase-deed (titre d' acquisition),
but only had the effect of determining and limiting to certain subjects the
indefinite share which, before the partition, each co-heir or other co-proprietor
had, in the mass of the property, divided. According to the distinction to be
i
560 HINDU LAW. [BOOK II.
family. Property in common is regarded as an attribute or conse-
quence of the relation of community of origin, not union of pro-
perty as the source of the rights and duties of the co-sharers. A
mere association in estate (c) will not make the subjects of it
found in the writings of so many French Jurists and in the Code itself, the
instrument of partition -^as ' un acte diclaraiif,' not ' un acte translatif de
propriete,' "P. C. in Courteaux v. Hewetson, L. E. 6 P. C, at p. 412; Poth.
Tr. de V. Pt. VII., arts. 6, 7.
The former of these two theories somewhat resembles that of the Bengal
law, as given in the Daya Bhaga, Chap. I., paras. 8, 35 (Stokes's H. L. B.
184, 193). The ownership of sons arises, according to Jimutavahana (para.
14), only on the death of their father, and there exists per my et non per tout,
" a several though unascertained right in each coparcener " (1 Macn. H. L. 6),
being as to each limited to a particular share, which is merely distinguished
individually from the others by the act of partition, see Jagannatha in Col.
Dig., Book v., T. 2 Comm. ; 1 Str. H. L. 201. This view is contested by
the Virarnitrodaya, Transl., p. 2, and by some even of the Bengal writers,
as may be seen from Colebrooke's notes, but on it rests the recognised right
of an undivided co-parcener to deal with his own share by way of sale or mort-
gage. The Mitakshara on the other hand assigns to the sons a common owner-
ship with their father by birth (Mit., Chap. I., sec. 1, para. 23; Stokes's
H. L. B. 374), which extends, in the case of each co-sharer, to the whole, so
as to prevent any one singly from dealing even with a part (para. 30; 1 Macn.
H. L. 5), and then partition is the mutually exclusive concentration on
particular portions of the individual ownerships previously extending in mutual
concurrence over the whole property (para. 4). Compare the Smriti Chan-
drika, Chap, XII., para. 9, and the Viramitrodaya, Transl., pp. 3, 19, 42.
On the death of a parcener " without male issue, his share becomes extinct,
because no partition has taken place in the family, and there has consequently
been no ascertainment of the share of each parcener." See Udaram Sitaram
V. Ranu Pandoji, 11 Bom. H. C. E. 76; Narsinhhhat v. Chenapa Ningapa,
S. A. No. 205 of 1877, Bom. H. C. P. J. F. for 1877, p. 329.
(c) The mutual relations of members of a united family are sharply dis-
tinguished from those of mere partners, Samalhhai v. Someshwar etal., I. L. E.
5 Bom. 40; and the Viram. quoted below, though the association of the latter
is recognized as much more intimate than under the European laws. Partner-
ship, however, must now be governed by the Indian Contract IX., of 1872.
On the division of a caste the Courts have sometimes declined jurisdiction iu
a quarrel concerning a partition of the caste property, as being a caste ques-
tion excluded from cognizance by Eeg. 2 of 1827, sec. 21, see Girdhar v.
Kalya, I. L. E. 6 Bom. 83. As to the last point see Act XIV. of 1882, sec. 11,
and Vasudeo v. Vamnaji, I. L. E. 5 Bom. 80. Without such a provision the
decisions of the castes would be subject to revision by the King's Courts
according to the Hindu law, see 2 Str. H. L. 267, and it is not infrequently
a question whether a caste decision, so called, has been properly arrived at ;
Murari v. Suba, I. L. E. 6 Bom. 725. As to the incidental cognizance of a
religious question, by a Civil Court, reference may be made to Krishnasami v.
Krishnama, I. L. E. 5 Mad. 313, and to Brown v. Cure of Montreal, L. E.
6 P. C, p. 167 ; as also to Dhunum Singh v. Kissen Singh, I. L. E. 7 Cal. 767.
PARTITION. 561
members of a joint family, but their being members of a joint
family makes their estate and their acquisitions, except in special
cases, common property {d}. The dissolution of the union makes
joint property in this sense impossible except after a re-union.
Separate rights of the members take the place of the undis-
criminated common right, and the shares are determined accord-
ing to the branches and sub -branches proceeding inter se from the
common stem (e).
The Mitakshara (Chap. I., sec. I., para. 13), explaining the
familiar text as to the sources of ownership, says that Inheritance
" relates to unobstructed and Partition to obstructed inheritance. "
The exposition in the Viramitrodaya is that ' ' unobstructed
relates to a right of ownership actually subsisting in the lifetime of
one from relationship to whom it arises, and " obstructed " to one
only ready to come into existence on the death of the obstructing
owner, or a partition by several such owners. Thus inheritance
would apply to the sons taking collectively the aggregate patri-
mony, partition to collaterals taking the same estate, not pre-
viously vested in them, according to their shares, or a mother
taking on a partition by sons (/).
The intimate connexion of the laws relating to the two subjects
has frequently been recognized. " Inheritance," in the sense of a
right coming into active existence only at a preceding owner's
death, does not apply to the most frequent and important cases of
inheritance under the Hindu law as conceived by the Mitakshara
and its followers. The growth of a family is regarded as like the
growth of a banyan tree, each new male offshoot of which imme-
diately becomes a part of the whole, capable, when the parent stem
perishes, of continuing the existence of the aggregate of which it
then becomes the most important, perhaps the sole remaining,
element. The Hindu lawyers of the Western School accordingly
treat of Partition under the title of Dayavibhaga, regarding the
contents of which see Book I., pp. 51 ss.
Vijnanesvara's definition of the word " Partition " is defective
(g), since it does not touch on the duties and liabilities of the
(d) Comp. Laveleye, Prim. Prop. 181 ss.
(e) Comp. Maine, Early Hist, of Inst., p. 79, and Ballahhdas v. Sundardas,
I. L. R. 1 All. 429. See the Viram. Transl., pp. 168, 162; Yyav. May.,
Chap. IV., sec. 2.
(/) See above, p. 63; and below. Digest of Vyavasthas, Chap. II., sec. 2.
See also the Madhaviya, pp. 4 ss.
(g) See Mit., Chap. I., sec. 1, para. 4.
H.L. 36
562 HINDU LAW. [BOOK II.
coparceners, which, as the subsequent treatment of this title
shows, are apportioned in the act of Partition just as clearly as the
shares of the common property.
Subdivision.
§ 2. The subjects which the law of Partition presents for
consideration, therefore, are :
I. The family living in union,
II. The separation of such a family,
III. The common property to be distributed,
IV. The common liabilities to be distributed, and
V. The duties and rights arising from the separation.
The evidence of Partition, though it forms strictly no part of the
law of Partition, may be included under this head for convenience
sake, and in deference to the custom of the Hindu lawyers, who
always treat it under this title.
I. The Family Living in Union.
§ 3. The normal state of a Hindu family is one of union (h).
(h) Gohind Chundar Mookerjee v. Doorga Parsad Baboo, 22 C. W. K. 248,
and the cases there cited by Sir E, Couch, C.J. ; Rewun Persad v. Musst. Radha
Beehy, 4 M. I. A. 137 ; Prit Koer v. Madho Pershad Singh, L. E. 21 I. A. 134.
" The common abode of brethen is preferable while the parents are alive,
as likewise after their death," Viram. Tr., p. 52. "But if increase of
religious merit (by sacrifices) be desired, then partition should be made."
Ihid. See Neelkisto Deb. v. Beer Chunder Thakoor, 12 M. I. A., at p. 540.
As to the case of a younger brother gradually admitted by the elder to a
participation in his business, see the reply of the Sastris in Abraham v.
Abraham, 9 M. I. A., at p. 235; Vedavalli v. Narayana, I. L. E. 2 Mad. 19.
See Maine, Anc. Law, Chap. VIII., p. 261 ss. In Boologam v. Swenam,
I. L. E. 4 Mad. 331, and some other cases it seems to be held that dancing
girls living chiefly by prostitution are capable of forming a joint family. The
invested earnings of two sisters were held not to be " gains of science '
partible with the rest of the family, but self- acquired impartible property of
the two gainers. A true joint family could not possibly spring from a prosti-
tute mother, but the family might possibly " constitute themselves parceners
after the manner of a Hindu joint family," as in the case cited above, p. 5 (g).
Joint tenancy under the English law arises only from some act of the
parties (see Cruise, Dig. Tit. XVIII., Chap. 1) : joint tenancy by inheritance
is not recognised, though co-parcenership is. The joint estate of a united
Hindu family differs in some respects from both. Thus, the co-sharers, unlike
English coparceners, have, under the Mitakshara, an entirety of interest,
and along with a limited representation (supra, pp. 61 ss.) there is a jus
accrescendi. On the other hand a joint tenant can dispose of his own share,
FAMILY IN UNION. 563
The rule holds (i) as to the family of a Sudra in which illegitimate
sons are members equally with those who are legitimate, though
entitled on partition, which as coparceners they can enforce (k) to
only one half of the shares taken by the latter (l).
The group thus constituted is in most of its civil relations to
those outside it regarded as a social unit with common interests and
duties as well as in typical cases common sacrifices and a common
household. In such a group, membership of which may be aban-
doned, as unanimity cannot in all things be secured, the
predominant will must be that of the greater number or of those
who can exert the greater energy. Thus it was said that a majority
of united brothers may deal with the estate even by way of aliena-
tion of part of it for the obvious benefit of the whole (m). Where
four brothers sold a small part to redeem a large one, the adopted
son of the fifth brother was held bound by the transaction (n)
though he had not assented to it. This is perhaps the necessary
practical solution of the question arising from a conflict of wishes
amongst co-equals. The doctrine of the older jurists, however,
seems to have been that a complete consent of all concerned was
and thus sever the joint tenancy, which the Mitakshara does not allow with-
out the assent of the other, co-sharers in a united family. See for the present
law pp. 166, 203, and note. Partition of a joint tenancy could not be enforced
under the English common law prior to the Statutes of 31 and 32 Hen. VIII.,
but a writ of Partition was given to coparceners by the common law.
To the intimate union of the Hindu family may be traced the widely
spread henami system under which one person, usually a near relative, purchases
property in the name of another. A father not distinguishing his own interests
from those of his son, invests money or establishes a business in the name of
the latter as born under a favouring star. Next comes a similar purchase
for the purpose of securing the investment against future chances. Finally
arises a system of fictitious ownership. The Courts, looking to the facts,
decline to recognise generally in a purchase by a Hindu in the name of a son
an intended advancement of the son as under the English law. The presump-
tion is in favour of a purchase for the benefit of him who supplies the price.
See Naginhhai v. Ahdulla, I. L. R. 6 Bom. 717; Gopu Krist Gosain v.
Gunpersaud Gosain, 6 M. I. A. 63; Indian Trusts Act II., of 1882, sec. 82.
(i) Raja Jogendra Bhupati v. Nityanund Mansingh, L. R. 17 I. A. 128;
S. C. I. L. R. 18 Cal. 151.
(k) Thangam v. Suppa, I. L. R. 12 Mad. 401.
(l) Sadu V. Baiza and Genu, I. L. R. 4 Bom. 37.
(w) Balkishan v. Ram, L. R. 30 I. A. 139; Miller v. Ranganath, I. L. R.
12 Cal. 389, 399; Daulat v. Mehr, I. L. R. 15 Cal. 70; Shea v. Sahib, I. L. R.
20 Cal. 453; Hunooman Prasad Panday's Case, 6 M. I. A. 393.
(n) Ratnagiri, 5th June, 1852, M. S.
564 HINDU LAW. [BOOK II.
requisite (o) to an effectual volition touching the common property
or interests except in cases expressly provided for (p). The need
for unanimity in common acts is still so strongly felt that it is said
the consent of all the co-heirs is requisite to justify expenditure
from the common estate even for the funeral ceremonies of a
father (q), and the legal identity of the several members of the joint
family is so complete under the law of the Mitakshara, that a
single member cannot, according to the Sastris and to Colebrook
(r), deal directly with any part of the common property. His gift
or bequest of any portion is inoperative (s). Visvesvara and
(o) See above, p. 217, note (p).
(p) See Digest of Vyavasthas, infra. Chap. II., sec. 1, Q. 8; see below as to
cases, and also above, p. 276, note (m).
(g) Borradaile's Collection, Lithog. p. 37.
(r) 2 Str. H. L. 339, 432, 449. Cf. Rangayana v. Ganapa, I. L. E. 15 Bom.
673.
(s) Hurreewuluhh Gungaram v. Keshowram Sheodass, 2 Borr. 7; Ichharam
V. Prumanund, ibid. 615; Vasudev Bhat v. Venkatesh Sanhhav, 10 Bom.
H. C. E. 139; Ganguhai v. Ramanna, 3 ibid. 66 A. C. J. (gift to a daughter);
Rambhat v. Lakshman Chintaman, I. L. E. 5 Bom. 630; Col. Dig., Book V.,
T. 173, Comm. ; Smriti Chandrika, Chap. VIII., p. 20; Ganga Bisheshar v.
Pirthi Pal, I. L. E. 2 All. 635; Chamaili Kuar v. Ram Prasad, ibid. 267;
Unooroop Ternary v. Lalla Bandhjee Suhay, I. L. E. 6 Cal., at p. 763; Kalu v.
Barsu, I. L. E. 19 Bom. 803. Sacrifices, to the completeness of which some
expenditure is requisite, can be performed by any member of a united family
only with the assent of the others. See the Dharmasindusara, as quoted by
Groldstiicker (On the Deficiencies, &c., p. 40). The Viramitrodaya, concurring
in the view that it is of the essence of a sacrifice to part with property that
is distinctly one's own, says that notwithstanding the joint ownership of his
sons a father may do this without their permission on account of his (admin-
istrative) independence and their dependence. Mitramisra, however, seems
to think that where there is a proprietary right there may be, for sacrificial •
purposes at any rate, an effectual relinquishment of that right by the indi-
vidual, though it be attended with sin. According to this view members of
joint families would be free from obstruction in dealing with their own interests.
Viram. Tr., p. 14; infra, Chap. I., sec. 2, Q. 4, Digest of Vyavasthas.
This is cited in Lakshman. Dada Naik v. Ramchandra Dada Naik, L. E.
7 I. A., at p. 195, and the power of alienation is called " an exceptional
doctrine established by modern jurisprudence." The subordinate joint owner-
ship of the Hindu wife in her husband's estate does not interfere with his
free disposal of it or confer any right of disposal on her, see Viram. Transl.,
p. 165; Col. Dig., Book II., Chap. IV., T. 28, Coram.; 2 Str. H. L. 7, 16,
though her maintenance must be provided for. In Bengal, however, she is
recognised as entitled to a share against a purchaser in execution, Badri Roy
V. Bhatwat N. Dobey, I. L. E. 8 Cal. 649.
The consent of brethren is necessary to a gift at a mother's obsequies, 2
Str. H. L. 339, according to the Sastri, on whose reply, however, see the Notes
FAMILY IN UNION. 566
Balambhatta, in commenting on the Mitakshara, Chap. I., sec. 1,
pi. 20 (Stokes's H. L. B. 373), take this as unquestioned; and the
passage quoted below from Yajnavalkya (see Property naturally
indivisible), shows that the author was still under the dominion,
to some extent, of the notion of land being properly impartible,
and of its being inalienable, at any rate, without the assent of every
co-owner (t). The language of the Privy Council is to the same
effect with regard to the incapacity of a. single member (v). But
Colebrook having said that in case of an alienation for valuable
consideration, "equity would perhaps award partition" to the
alienee (w), the Courts have allowed execution against the common
loc. cit. Thus a joint family can act only collectively. At 2 Str. H. L. 449
the Sastri of the Recorder's Court, Bombay, says : " An undivided family having
no power individually, but collectively only, no member can, without the con-
currence of all, express or implied, dispose of any thing," and such is the
purport of the Mit., Chap. I., sec. 1, para. 30; above, p. 446. See also
Chuckun Lall Singh v. Poran Chunder Singh, 9 C. W. R. 483. " An indi-
vidual cannot alien his real estate to the prejudice of his heirs," Sutherland
in 2 Str. H. L. 13, 445. But an occupant under Government may, without
assent of the heirs, resign his holding (Arjuna v. Bhavan et al., 4 Bom.
H. C. R. 133 A. C. J.; Davalata et al. v. Bern bin Yadoji et al., ibid. 197
A. C. J.), on account of the special relations created by or constituting
occupancy, Gundo Shiddhesvar v. Mardan Saheb, 10 ibid. 423; Ghelabai v.
Pranjivan, 11 ibid. 222; Tarachand v. Lakshman, I. L. R. 1 Bom. 91. A
member of an undivided family in Madras cannot sell even hip own share
save in an emergency, according to the cases quoted in the note to Gangubai
V. Ramanna, 3 Bom. H. C. R., at p. 68, A. C. J. But he has this power over
what may come to his share in a partition according to Vitla Butten v.
Yamenamma, 8 Mad. H. C. R. 6, and the cases cited by the Privy Council in
Suraj Bunsi Koer v. Sheo Prasad, L. R. 6 1. A., at p. 101.
When one coparcener had svied a stranger for part of the patrimony and
failed, and a subsequent suit is brought by one elected manager in the name
of all for the same property, a question of res judicata arises. Its proper
solution may perhaps be referred to this, that the one who sued thereby
set up a separate right, and having failed, cannot sue for it again; and as he
could dispose effectually of his own interest this is to be deemed transferred to
the defendant even though the manager's suit should be successful. See Breton.
Const, de la chose Jugee. But a simpler solution is to be found in regarding
the single sharer as an essentially different " persona " from the collective
one, and the latter as not affected by the act of the former. A suit for property
as allotted to the plaintiff in partition does not bar a subsequent suit for
partition, Shivram v. Narayan, I. L. R. 5 Bom. 27.
(t) See Mit., Chap. I., sec. 1, para. 30; Stokes's H. L. B. 376; and the
Vivada Chintamani, p. 309. See below, sec. 5 B.
(v) Musst. Cheetha v. B. Miheen, 11 M. I. A. 369, quoted below. See too
Rambhat v. Luksman, I. L. R. 5 Bora. 630, sub fi;. and the cases there quoted.
(w) See 2 Str. H. L. 350, 434.
666 HINDU LAW. [BOOK II.
property, to ascertain the undivided share and make it available to
the creditor, whether expressly charged or not, and have even
recognized the logical consequence (x) that a single coparcener
may alien or incumber his own share for valuable consideration,
though not gratuitously {y), the vendor thus acquiring a right to a
partition (z). Whether before a partition of interests agreed to by
the parties or decreed by a Court, the purchaser's right is more
than an inchoate one seems doubtful. The purchaser is said to
become a tenant in common (a), but still his right has to be worked
out by partition (b), and it may be said that until the partition of
interests is completed there is no individual interest on which the
alienation can take effect (c), or which will not become absorbed
(x) See Ponnappa Pillai v. Pappuvayyangar, I. L. R. 4 Mad., at p. 56, etseq.
iy) Vasudeo Bhat v. Venkatesh Sanhhav, 10 Bom. H. C. R. 139; Rangapa
v.Madyapa et al, S. A. No. 537 of 1873, Bom. H. C. P. J. F. for 1874, p. 171.
The High Court of Bengal declined to accede to this principle in Sadabart
Prasad v. Phoolbash Koer, 3 Beng. L. R. 31,. but as the liability of the share for
its owner's debts has now been established by Deen DayaVs Case, L. R. 4
I. A. 247, it would seem that the same consequences must follow in Bengal
as elsewhere. See the remarks of the Judicial Committee in Suraj Bunsi
Koer V. Sheo Prasad, L. R. 6 1. A., at pp. 102, 104. In Musst. Phoolbash
Koonwar v. Lalla Jogeshwar Sahay, their Lordships expressly refrained from
deciding this question, see L. R. 4 I. A. 7, 21, 26, 27, but in Suraj Bunsi
Koer's Case it is clearly laid down that even on a bond which could not have
been enforced after the obligor's death against his co-sharers (in that case
sons) an attachment and order for sale create a charge in favour of the judg-
ment creditor on his debtor's undivided interest which is not extinguished by
the debtor's subsequent death and his brother's survivorship. In Madras a
decree obtained against a member of a united family does not, according to
Ravi Varma v. Koman, I. L. R. 5 Mad. 223, bind the family property in the
hands of the other members after his death. " The interest," it was said,
" survived to the other members," and did not " enure as assets of the deceased
in the hands of the appellant." In the case, however, of a father succeeded by
sons the Judicial Committee have declared that the estate taken by the latter
is assets for paying the debts of the former, see above pp. 166, 204, and as to
attachment in execution see below, note (e).
(z) Udaram Sitaram v. Ranu Panduji et al., 11 Bom. H. C. R. 76 Palani-
velappa Kaundan v. Maunaru Naikan et al., 2 Mad. H. C. R. 416; Sitaram
Chandrashekhar v. Sitaram Abaji, S. A. No. 379 of 1874, Bom. H. C. P. J. F.
for 1875, p. 140; Mahadoo bin Jania v. Shridhar Babaji, Bom. H. C. P. J. F.
for 1874, p. 114; and Vrijabhukhandas Kirparam v. Kirparam Govandas, Bom.
H. C. P. J. F. for 1879, p. 263.
(a) Udaram Sitaram v. Ranu Panduji, 11 Bom. H. C. R., at p. 81.
(b) Ibid. 72; above, p. 167. A decree for partition does not, it was said,
effect a severance so long as it is under appeal, Sakharam Mahadev v. Hari
Krishna, I. L. R. 6 Bom. 113.
(c) See Ravi Varma v. Koman, I. L. R. 5 Mad. 233, cited below.
FAMILY IN UNION. 567
by survivorship on the sharer's death (d). The view of the Judicial
Committee however appears to be that an attachment in execution
creates a charge (e). See further on this subject below.
Separation, Book II., sec. 4 C, sec. 5 A, sec. 6 A.
Where one of the members of a joint family has disappeared
those who remain may deal with the common property in any way
consistent with good faith (/).
One only of two or more united coparceners cannot enhance
rent against the will of another, or oust a tenant of the family (g),
(d) See Suraj Bunsi Koer v. Sheo Prashad, L. E. 6 I. A., at p. 109, and
comp. Kotta Ramasami Chetty v. Bangari Sesham Naayanivaru, I. L. E.
3 Mad., at p. 167 ; B. Krishna Rau v. Lakshmana SJianhJiogue, I. L. E. 4 Mad.,
at p. 306, where it is considered that attachment for sale of a coparcener's
share severs his interest so as to make it available in case of his death before
satisfaction of the decree. If a distinct charge on the common estate is thus
constituted it may admit of question whether that is quite consistent with the
decree for ousting the purchaser in execution of a manager's share in Maruti
Narayan v. Lilachand, I. L. E, 6 Bom. 564. Property sold or attached under
a decree against a father stands on a peculiar footing, which is discussed below.
(e) Suraj Bunsi Koer v. Sheo Prashad, supra, and 0. Goorova Butten v. C.
Narainsawmy, 8 Mad. H. C. E. 13.
(/) Ramchandra Sadashiv v. Bagaji Bachaji, Bom. H. C. P. J. F. for 1878,
p. 134; Ganesh v. Jewach, L. E. 31 I. A. 10; S. C. I. L. E. 31 Cal. 262.
(gi) Krishnarao Jahagirdar v. Govind Trimhak, 12 Bom. H. C. E. 86;
Madharav v. Satyana et al, S. A. No. 226 of 1876, Bom. H. C. P. J. F. for
1876, p. 8; but see also Krishna Rav et al. v. Manaji et al., 11 Bom. H. C. E.
106. Under the English Law it was held that any one of several joint land-
lords could by notice end a tenancy, Doe v. Summerset, 1 B. & Ad. 136, Doe v.
Hughes, 7 M. & \V. 139. The tenancy seems to be regarded as dependent on
a continuous and complete volition, while in India the relation created by con-
tract has usually been treated as requiring a new and complete volition to
change it.
Thus one of several co-owners even after a partition of interests without
a physical distribution of the estate, cannot, without the assent of the others,
increase the rent of tenants or eject them. Balaji Bhikaji Pinge v. Gopal bin
Raghu Kuli, I. L. E. 3 Bom. 23; Guni Mahomed v. Moran, I. L. E. 4 Cal.
96; Raghu bin Ambu v. Govind Bahirao and others, Bom. H. C. P. J. for
1879, p. 446. Notice by some co-sharers only of enchancement of rent has in
Bengal been held sufficient ; see Chuni Singh v. Hera Mahto, I. L. E. 7 Cal.
633. But the decision was by three Judges against two. Comp. Gopal v.
Macnaghten, ibid. 751; Akojee v. Vadelal, Bom. H. C. P. J. 1882, p. 320.
According to the English common law a compulsion needs the concurrence
of all entitled, see Attwood v. Ernest, 13 C. B. 881, compared with the cases
above cited; but an acceptance or assent may be by one, Husband v. Davis,
10 C. B. 645. Comp. Krishnarao v. Manajee, 11 Bom. H. C. E. 106.
Some only of the sharers were allowed, contrary to the wish of anothsr
sharer, to eject an intruder in Radha Prashad Wasti v. Esuf, I. L. E. 7
Cal. 414. In Bombay it would perhaps be held that the outsider holding with
568 HINDU LAW. [BOOK II.
or recover his own estimated fractional share of the joint property
from a stranger {h). He cannot alone sue to set aside a charge
created by another (i), and the mere assent of other members to a
suit brought by one does not supply the place of their joinder (k).
If the suit as to the added plaintiffs is barred by limitation, it is
barred altogether (l).
" The rights of the coparceners in an undivided Hindu family
governed by the law of the Mitakshara, which consists of a father
and his sons, do not differ from those of coparceners in a like family
which consists of undivided brethren, except so far as they are
affected by the peculiar obligation of paying their father's debts,
which the Hindu law imposes upon sons, and the fact that the
father is in all cases naturally, and in the case of infant sons
necessarily, the manager of the joint family estate (m).
the assent- of a sharer was in the same position as if put into possession by
him. See Mahahalaya v. Timaya, 12 Bom. H. C. E. 138. In Reasut Hossein
V. Chorvar Singh, I. L. K. 7 Cal. 470, it was held that some only of several
joint lessors could not take advantage of a condition of re-entry. See also
Alum Manjee v. Ashad Alt, 16 C. W. K. 138 ; Gokool Pershad v. Etwari
Mahto, 20 C. W. E. 138; Nundun hall v. Lloyd, 22 C. W. E. 74 C. E. In
Kuttusheri Pishareth Kanna Pisharody v. Vallotil Manakel Narayanan,
I. L, E. 3 Mad. 234, it is said that all interested in pressing the claim must
be joined as plaintiffs, or if they refuse, as defendants. See Code of Civ. Proc,
sec. 26, 28, 32; Indian Contract Act IX. of 1872, sec. 45; and compare
Alexander v. Mullins, 2 Euss. & M. 568.
The same general principle is recognised in Krishnamma v. Gangarao,
I, L. E. 5 Mad. 229, in which it was held that one of several sharers of a
village could not enforce on a tenant a patta (memorandum of rent payable)
for his separate share of the total rent due by the tenant for his holding. In
Kalidas Kevalda v. Chotalal et al., Bom. H. C. P. J. 1883, p. 31, it was
ruled that all the members of a united family must be joined as plaintiffs in
a suit for a trade debt. An express assent to a suit by a manager was held
insufficient. Eeference is made to Ramsebuk v. Ramlal Kundoo, I. L. E.
6 Cal. 805, and Dularchund v. Balramdas, I. L. E. 1 All. 454.
(h) Nathuni Mahton v. Manraj Mahton, I. L. E. 2 Cal. 149.
(t) See Rajaram v. Luchman, 12 C. W. E., p. 478, cited and approved in
Mussumut PJioolhas Kooniour v. Lalla Jogeshur SaJioy, L. E. 3 I. A., at
p. 26; Seshan v. Veera, I. L. E. 32 Mad. 284; Shamrathi v. Kishen, I. L. E.
29 All. 311; Jagahhai v. Rustamji, I. L. E. 9 Bom. 311. The greater force of
the prohibitive than of the active element in a composite will is generally
recognised. Goudsmit, Pand. 75.
(k) Gopal V. Gokaldas, I. L. E. 12 Bora. 158.
(I) Ramslebuk v. Ram Lai Koondoo I. L. E. 6 Cal. 318 ; Kalidas v. Nathu
Bhagwan, I. L. E. 7 Bom. 217.
(m) Suraj Bunsi Koer v. Sheo Prasad Singh, L. E. 6 I. A. 88. 100. The
"obligation" arises, according to the Hindu authorities, only on the father's
death. See below.
FAMILY IN UNION. 569
The joint family is usually represented in external transactions
by a managing member or members. The managership naturally
belongs to a father during his life and capacity for affairs, and then
to the eldest member qualified (n). The elder brother may take
the management unless the others intimate their dissent (o). A
manager's right to bind the family estate by transactions or by
charitable gifts rests on the consent, express or implied, of the
members (p). The manager's transactions for the common benefit
bind the several members in favour of one dealing with him in good
faith (q), a want of which may be indicated by the unusual charac-
ter of the transaction (r). A lessee from one member as manager
(n) Steele, L. C. 153, 178; Manu IV. 184; Bliaoo Appajee Powar v. Khun-
dojee wulud Appajee Powar, 9 Harr. 106; Bulakhidass v. Ghama, Bom.
H. C. P. J. for 1880, p. 224; Bhagirthihai v. Sadashivrav Venkatesh, Bom.
H. C. P. J. for 1881, p. 155; Suraj Bunsi Koer v. Sheo Proshad Singh, L. R.
6 I. A., at p. 101; Bahaji Mahadaji v. Krishnaji Devji, I. L. R. 2 Bom. 666.
These cases show also what is comprehended in a "family necessity." For
further texts see Vyav. May., Chap. IV., sec. IV., para. 7.
(o) Steele, L. C. 53 ; 2 Str. H. L. 331.
(p) 2 Str. H. L. 333, 335, 339, 342. Sheo Shankar v. Jaddo Kunwar, L. R.
41 I. A. 216. On the peculiar position of the manager according to Hindu
law, reference may be made to Chuckun Loll Singh v. Poran Chunder Singh,
9 C. W. R. 483; and S. M. Rangaumani Dasi v. Kasinath Dutt, 3 B. L. R.
1 0. C. J.; Miller v. Ranganath, I. L. R. 12 Cal. 389, 399; Daulat v. Mehr,
I. L. R. 15 Cal. 70; Sheo v. Sahib, I. L. R. 20 Cal. 453; Sakharam v. Deoji,
I. L. R. 23 Bom. 372; Jagmohandas v. Duksal, I. L. R. 19 Bom. 338; cf.
Venkatramma v. Venkayya, I. L. R. 14 Mad. 377. See also below, V..
sec. 7 a. A certificate to collect debts under Act XXVII., of 1860, may be
refused to a Karnavam (or manager) of a Malabar Tarwad to whom the
members refuse their confidence on account of his being a judgment debtor
to the Tarwad, Madhava Panikar v. Govind Panikar, I. L. R. 5 Mad. 4.
Comp. Steele, L, C, p. 54.
(q) Aushutosday v. Moheschunder Dutt et ah, 1 Fult., at p. 382; Tanda-
varaya Mudaliv. Valli Ammal, 1 Mad. H, C. R. 398; Davlatrao Mane v. Nara-
yanrao Mane, R. A. No. 51 of 1876, Bom. H. C. P. J. F. for 1877, p. 175;
Gundo Mahadev v. Ramhhat, 1 Bom. H. C. R. 39; Nahalchand et al. v.
Magan Pitambar, Bom. H. C. P. J. F. for 1879, p. 332; Johurra Bibee v.
Sree Gopal Misser, I. L. R. 1 Cal. 470; Narayanrao Damodar v. Balkrishna
Mahadev Gadre, Bom. H. C. P. J. F. for 1881, p. 293; Chuni Singh v. Hera
Mahto, I. L. R. 7 Cal., at p. 642. See Col. Dig., Book II., Chap. IV., T. 54,
Comm. ad fin; 2 Strange, H. L. 342, 343; Kasheekishore Roy v. Alip Mundal,
I. L. R. 6 Cal. 149.
(r) Baji Shamraj v. Deo bin Balaji, Bom. H. C. P. J. F. for 1879, p. 238;
1 Str. H. L. 202 ; see Hanuman Prasad Panday v. Babooee Munraj Koonweree.
6 M. I. A., at p. 412, and Kottu Ramasami Chetti v. Bangari Seshama,
I. L. R. 3 Mad., at p. 164 et seq., and Ponambilath Parapravan Kunhamod
Hajee v. Ponambilath Parapravan Kuttiath Hajee, ibid. 169.
570 HINDU LAW. [BOOK II.
is not discharged by a receipt for rent passed to him by another
member (s), though under a lease from the members jointly he is.
As to the limitations on a manager's authority, see Gopalnarain v.
MuddomuiUj (f), 8. Screemutty v. Lukhee Narain Dutt et al (v),
and Suraj Bunsi Koer's Case supra. A widow managing for her
infant son, like any other manager when minors are interested as
coparceners (ic), can deal with the property only to meet existing
necessities, but the other party is protected by good faith and
reasonable inquiry (x), and in Trimhak v. GopalShet (?/) good faith
is) Dada Ravji v. Bhau Ganu, S. A. No. 279 of 1876, Bom. H. C. P. J. F.
for 1876, p. 11; Poshun Ram et al. v. Bhowanee Deen Sookool et al.,
24 C. W. R. 319. See Sangappa v. Sahehanna, 7 Bom. H. C. R. 141 A. C. J.,
and Krishnarao Ramchandra v. Manaji bin Sayaji, 11 Bom. H. C. R. 106, 110;
Akoji Gopal v. Hirachand, Bom. H. C. P. J. 1882, p. 320; Jadoo Shat v.
Kadumhinee Dassee, I. L. R. 7 Cal. 150; and Col. Dig., Book II., Chap. IV.,
T. 54 Comm. ad fin. For the English law see Robinson v. Hoffman, 4 Bi. 562,
and Leigh v. Shepherd, 2 Br. and Bi. 465 ; Doe Dem Green v. Baker,
8 Taunt. 241.
Payment to one of several co-sharers frees the tenant as shown in Krishnarao
Ramchandra v. Manaji bin Sayaji, 11 Bom. H. C. R. 106. A suit by one
co-creditor, except on the ground of collusion of a co-creditor with the debtor,
cannot in general be maintained under the English law, but he can give an
effectual discharge; and under the systems derived from the Roman Law
he may sue alone for the whole. See Evans's Pothier, I. 144, II. 55 ss. As
to dehors in solido one may properly represent all in paying but not in resist-
ing payment, or in making adverse admissions or a compromise, see Evans's
Poth. II. 67. All co-sharers must be served with notice of intended fore-
closure, Norender Narain v. Dwarka Lall, L. R. 5 I. A. 18. Under the Indian
Contract Act IX. of 1872, sec. 43, any one of several joint promisors may be
compelled to perform the whole promise and may then force the others to
contribute. Whether a group of successors however is in this position seems
at least doubtful. The Hindu law does not seem to impose any " solidarity "
of obligation on them except as members of a united family. Comp. Door g a
Parsad v. Kesho Persad Singh, L. R. 9 I. A. 27, 31.
The co-sharers who have colluded with a tenant to defraud a co-sharer may
on that ground be sued by him in common with the tenant for the share of the
rent due to the plaintiff, Doorga Churn Surmah v, Jampa Dossee,
21 C. W. R. 46, and Kalee Churn Singh v. E. Solano et al, 24 C. W. R. 267,
and see Akoji Gopal v. Hirachand, Bom. H. C. P. J. 1882, p. 320.
(t) 14 B. L. R. 21, 49 (not perhaps quite assented to in Bombay).
(v) 22 C. W. R. 171.
(w) See Saravana Tevan v. Muttayi Ammal, 6 Mad. H. C. R., at p. 371.
Durgapersad v. Kesho Singh, I. L. R. 8 Cal., at pp. 661-662; S. C.
L. R. 9 I. A. 27. See Steele, L. C, p. 174-5.
{x) Hunoomanpersaud Panday v. Musst. Babooee Munraj Koonweree,
6 M. I. A. 393; C. Colum Comara V encatachella Reddyar v. R. Rungasawmy,
S. J. Bahadoor, 8 ibid., at p. 323; Dalpatsing v. Nanabhai et al., 2 Bom.
H. C. R. 306; Kashinath v. Dadki et al., 6 ibid. 211 A. C. J.; Bai Kesar v.
FAMILY IN UNION. 571
and reasonable inquiry seem to have been thought enough to justify
and validate transactions with a member only supposed to be a
manager acting for the common interest of the family (z). In
another case (a) the payment to a mother as manager of a debt
due on a mortgage executed to her as manager was held to bind the
son who by taking no steps for several years after attaining his
majority might be deemed to have ratified the transaction of which
he had taken the benefit (b).
In the common case of an ancestral trade descending to the
members of an undivided family, the manager can pledge the
property for the ordinary purposes of the business. He may also
enter into partnership with a stranger, but not enter into a com-
promise of partnership differences by a division and transfer of the
partnership property, to the possible prejudice of minor members
of the united family (c). A managing Khot has not authority to.
give up important rights vested in the members generally {d). A
manager, it has been said, is not at liberty to pay out of the
estate his father's debts barred by limitation (e). His authority
to acknowledge a debt does not arise necessarily from his position
but may be inferred from circumstances. Thus he cannot, without
special authority, revive a claim against the family barred by
limitation (/). The Hindu law (g), however, insists strongly on the
Bai Ganga et al., 8 ihid. 31 A. C. J.; Bai Amrit v. Bat Manik, 12 ibid. 79;
Saravana Tevan v. Muttayi Ammal, supra; Ratnam v. Govindarajula ,.
I. L. E. 2 Mad. 339.
iy) 1 Bom. H. C. E. 27.
(z) See the cases in note (x), p. 570; Sheo Shankar v. Jaddo Kunwar, L. E.
41 I. A. 216. Bahaji Sakhoji v. Ramset Pandushet, 2 Bom. H. C. E. 23;
Gane Bhive et al. v. Kane Bhive, 4 ihid. 169 A. C. J. ; Mahaheer Persad v.
Ramyad Singh et al., 12 Beng. L. E. 90; and the remarks below on Digest of
Vyavasthas, Chap. I., sec. 1, Q. 5. Comp. Doorga Persad' s Case referred tO'
below.
(a) Anant Jaganath v. Atmaram, 2nd App. 301 of 1881.
(b) See Act IX. of 1872, sec. 197.
(c) Johurra Bihee v. Sreegopal Misser, I. L. E. 1 Cal. 470; Ramlal
Thakursidas v. Lakshmichund et al., 1 Bom. H. C. E. li. App.
(d) The Collector of Ratnagiri v. Vyankatrav Narayan, 8 Bom. H. C. E.
1 A. C. J. A father sued for a share of property as joint, and then entered
into a bona fide compromise. His son subsequently renewing the claim was
held bound by the transaction; Pitam Singh v. Ujagar Singh, I. L. E. 1 All.
651.
(e) Gopalnarain Mozoomdar v. Muddomutty Guptee, 14 B. L. E. 49.
(/) Chimnaya Nayudu v. Gurunatham Chetti, I. L. E. 5 Mad, 169.
ig) See Col. Dig., Book I., Chap. V., T. 185, 186; and above. Book I., p. 94.
572 HINDU LAW. [book II.
payment of a father's debt. It i& the strongest of the obligations
which devolve on the sons, and the pious duty resting on them (h)
may perhaps be held to justify the satisfaction in such a case of a
claim that could not be enforced. In the case of Tilakchand v.
Jitamal (i) it was ruled that a barred decree against a father is a
valuable consideration for a new engagement by a son, and that a
representative is not bound to plead limitation whenever he can do
so. This was approved in Bhala Nahana v. Parbhu Hari (fc), where
a relation of a deceased husband sought to have the act of a widow
set aside, by which she fulfilled his engagement made on the adop-
tion of a son instead of setting up limitation as a ground for
repudiating it. It would seem, therefore, that in Bombay at any
rate a manager may discharge the religious obligation of the family
out of its estate without having to make the loss good at his per-
sonal cost (I). A contract by a manager of a Hindu family with a
stranger by which he seeks with the stranger's connivance
improperly to obtain for himself an undue share, is rescindible at
the suit of the party defrauded, and is not enforceable even as
between the contracting parties (w).
The cases already referred to will have shown that there is much
uncertainty as to the position of members of united families with
respect to the property in relation to their co-members and the
creditors of co-members and persons with whom the co-members
have contracted obligations. It cannot, in many cases, be said
with confidence whether the transactions of an alleged manager
bind the whole family or not, or whether in a particular instance a
member suing or sued is to be deemed a representative of all, and
if not what are the precise relations to the family estate which
arise through litigation at its several st-ages between him and
strangers with or without liens or ostensible liens on the property.
In the case of the transactions of a father and of suits against him
as affecting his sons' interests, along with his own, in the family
(h) See Udaram v. Ranu, 11 Bom. H. C. R. 76, 84.
(i) 10 Born. H. C. B. 206, 213.
(k) I. L. R. 2 Bom. 67, 71.
(Z) An executor may pay a barred debt, Lowis v. Rumney, L. R. 4 Eq. 451,
and set off against the share of a next-of-kin a barred debt due by him to the
estate, Re CordwelVs Estate, L. R. 20 Eq. C. 644. So in India the representa-
tives of heirs claiming a share in accumulations of interest on money in Court
must submit to a set-off of barred debts due by them to the estate, Lokenath
Mullick v. Odoychurn Mullick, I. L. R. 7 Cal. 644.
(m) Ravji Janardhan v. Gangadharhhat, I. L. R. 4 Bom. 29; Balkishan v.
Ram, L. R. 30 I. A. 139.
FAMILY IN UNION. 573
property, a special source of complications has been found in the
doctrine by which, in recent years, the pious duty of paying a
deceased father's debt not of a disreputable kind has been trans-
lated into an authority of the father to burden the estate or dispose
of it for satisfaction of such a debt, and a right on the part of
creditors to enforce, during the father's life, at the cost of his sons,
the moral obligation which, under the Hindu law, cannot arise for
them until his death. The father is usually manager. Sometimes
after borrowing money for proper purposes he colludes with his
sons in trying to evade the obligation by asserting that it was
obtained under such circumstances that the family estate is not
answerable for it (n). The son may have acquiesced in his father's
transactions. It does not seem possible to reduce the decisions of
recent years on such questions as these to exact harmony ; but the
questions recur so frequently that it will be useful to collect and
compare the chief conclusions arrived at by the several High Courts
and by the Judicial Committee. These will be considered as they
bear on the ordinary coparceners inter se, on the manager, on the
father and son, and on strangers connected with them in these
several capacities in the way of litigation or of voluntary
transactions.
In the case of Ramsehuk v. Ramlall Koondoo (o) at Calcutta,
it seems to be intimated that when a joint family carries
on trade all the members must join as plaintiffs in a suit arising
out of the trade. The claim was held barred because some of the
members of the family had not been joined as plaintiffs until the
suit as to them was barred by sec. 22 of Act XV. of 1877, though
instituted by other members within the period of limitation (p). In
several other cases the law has been held to be expressed in the less
exacting proposition that where there is no manager all the mem-
bers of a united family must be joined or be effectively represented
in a suit brought to affect the common property (q) ; but where
(n) See Oomedrai v. Hiralal, quoted in Hanooman Persad's Case, 6 M. I. A.,
at p. 418.
(o) I. L. R. 6 Cal., at p. 826. Followed in Bombay in Kalidas v.
Chotalal, H. C. P. J. 1883, p. 31. Comp. 2 Str. H. L. 331 ss.
(p) See further below, IV. Liabilities on Inheritance. Compare the case
of Goodtitle dem. King v. Woodward, 3 B, and Aid. 689.
(q) See Rajaram v. Luckman, supra; Norender Narayan v. Dwarka Lai.
L. R. 5 I. A. 18, 27; Reasut Hossein v. Chorwar Singh, I. L. R. 7 Cal. 470,-
see Radha Proshad Wasti v. Esuf, ibid. 414; Akoji and Gopal v. Hirachand,
Bom. H. C. P. J. 1882, p. 320.
574 HINDU LAW. [book II.
there is a manager acting honestly, or where there has been an
effectual representation, all may be bound, though not indi-
vidually made parties (r). In one case infants were made liable for
a share though the manager had had no right to defend the suit in
their name (s). In Lcuxman Nilkant Pusalkar v. Vinayak Keshav
Pusalkar (t) it was held that in a sale when the manager of a Hindu
family alone has been made a party, his right, title and interests
only passed to the purchaser unless such a manager was the father.
It was decided on the authority of Kharaginal v. Daim (v), which
had laid down that the Courts had no jurisdiction to seU the pro-
perties of persons who were not made parties to the suit, although
a judicial sale was not to be disturbed because a minor was not
made a party, and if the debt was justly due a minor's interest was
not prejudiced. The cases of Sakharam v. Deoji (w) and Hari
Vithal V. Jairam (x) adopting the view expressed in Shea Pershad
V. Saheh Lai (y) were referred to as not laying down good law ; but
the case of Doulai Ram v. Mehr Chand (z) was referred to as not
applicable to the case.
Of this class of suits it had previously been said by the Judicial
Committee (a) that when the members have no conflicting interests
there are cases " wherein the interest of a joint and undivided
family bemg in issue, one member of that family has prosecuted a
suit or has defended a suit, and a decree has been made in that
suit which may afterwards be considered as binding upon all the
members of the family, their interest being taken to have been
sufficiently represented by the party in the original suit." It was
held in Mayaram Sevaram v. Jayvantrav Pandurang (b), that a
son had been sufficiently represented by his father in a suit on a
(r) Col. Dig., Book II., Chap. IV., T. 54; Jogendro Deb Roy v. Funindro
Deb Roy, 14 M. I. A., at p. 376; Mayaram Sevram v. Jayvantrav Pandurang ,
Bom. H. C. P. J. F. for 1874, p. 41; Narayan Gop Habbu v. Pandurang Ganu,
I. L. R. 5 Bom. 685 ; Bissessur Lall SaJioo v. Maharajah Luchmessur Singh,
L. R. 6 I. A. 236 ; Radha Kishen Man v. Bachhaman, I. L. R. 3 All. 118. See
below, Separation. Daulat v. Mehr, L. R. 14 I. A. 187.
(s) Doorga Persad v. Kesho Persad, L. R. 9 I. A. 27; Balkishen v. Ram,
L. R. 30 I. A. 139.
(t) I. L. R. 40 Bom. 329.
(v) L. R. 32 I. A. 23; S. C. I. L. R. 32 Cal. 296.
(w) I. L. R. 23 Bom. 372.
(x) I. L. R. 14 Bom. 597.
(y) I. L. R. 20 Cal. 453.
(z) L. R. 14 I. A. 187.
(a) Jogendro Deb Roy Kut v. Funindro Deb Roy Kut, 14 M. I. A. 376.
(b) S. A. No. 435 of 1873; Bom. H. C. P. J. F. for 1874, p. 41.
FAMILY IN UNION. 675
mortgage. A father having sued for a share of property as joint
and then entered into a bond fide compromise, his son subsequently
renewing the claim was held bound by the transaction (c), and
more recently that nephews had been represented by theiruncle(d).
Similarly in Bissessur Laall Sahoo v. Maharajah Luchmessur
Singh (e) it was held that decrees which ' ' are substantially decrees
in respect of a joint debt of the family and against the representa-
tive of the family, " " may be properly executed against the joint
family property " (/). At Allahabad it has been held that where
the family property hypothecated by a father for family purposes
had been sold in execution of a decree against him alone the sons
could not recover their shares from the purchaser (g). The learned
Judges say that the decision of the Privy Council is an authority
for holding that when a suit is brought to recover a family debt
against a member of a joint Hmdu family it may be assumed that
the defendant is sued as a representative of the family (h), and
also for holding "that . . . decrees . . . substantially ... in
respect of a joint debt . . . may be properly executed against the
family property." In a subsequent case (i) it has been held that
adult members presumed to know of a mortgage by a father for
family purposes and not protesting (k), and not afterwards asking
to be made parties to a suit on the mortgage against the father
alone, are bound by the decree (l).
This seems to put the liability of sons arising from transactions
of their father and from suits against him on the ground of repre-
sentation through their acquiescence (m). The same doctrine has
(c) Pitam Singh v. Ujagar Singh, I. L. E. 1 All. 651. (It is not said whether
at the time of the earlier suit the son was a minor.)
(d) Narayan Gop Hahhu v. Pandurang Gannu,l. L. R. 5 Bom. 685.
(e) L. R. 6 I. A. 233, 237.
if) See above, pp. 167, 168, and Umhica Prasad Tewary v. Ram Sahay Lall,
I. L. R. 8 Cal. 898.
(g) Ram Narain Lai v. Bhavani Prasad, I. L. R. 3 All. 443.
(h) This doctrine was rejected at Calcutta in Ramphul Singh v. Deg Narain
Singh, I. L. R. 8 Cal., at p. 523. As to a suit against a father's instead of
a son's widow, see Siva Bhagiam v. Palani Padiachi, I. L. R. 4 Mad. 401.
(i) Phul Chand v. Man Singh, I. L. R. 4 All. 309.
(k) In Upooroop Tewary v. Lalla Bundhjee Sahay, I. L. R. 6 Cal. 749, the
son wilfully stood by allowing the creditor to suppose he assented. See
I. L. R. 8 Cal., at p. 624.
(l) This obligation in the case of a mortgage is denied at Madras, See below.
(m) In Phul Chand v. Luchmi Chand, I. L. R. 4 All. 486, the father as
manager of a family firm was sued for business debts. Family property was
sold in execution of the decree, and his infant son was held bound on account
576 HINDU LAW. [book II.
been applied in Bombay where there had been a conscious and
willing participation in benefits obtained (n). Thus the payment
to a mother as manager of a debt due on a mortgage executed to
her as manager was held to bind the son, who by taking no step
for several years after attaining his majority might be deemed to
have ratified the transaction of which he had taken the benefit (o),
but the presumption has not been carried to the length in any
ordinary case of excusing one who would impose liability on a
member of a family from making him a party to the transaction
or the suit. Even at Allahabad it was formerly held that the mere
sale of the rights and interests of one as father of a joint Hindu
family does not include the shares of his sons even though he
could dispose of those shares (p). A suit against the father alone
on a mortgage by him as manager was thought to bind the family,
but a sale in execution of his interest not to bind the shares of the
sons (q). In Chamaili Kuar v. Ram Prasad (r), it was held that
good faith in the purchaser did not validate his purchase from a
father who sold for an immoral purpose during his son's minority.
The principle was adhered to that one co-sharer could not dispose
of the joint estate or any part of it, and that the father could not
as manager sell the estate merely for his own self-indulgence, of
which information was accessible to the purchaser. Similarly at
Calcutta it was said that a son could not ordinarily be affected by
a suit against the father alone. But on the ground that he had
acquiesced for several years in the mortgagee's possession he was
not allowed to recover his share sold in execution to the
mortgagee (s).
In the same case it is said that a father can dispose of the whole
ancestral estate, or at least that it is the duty of the son to pay all
his father's debts out of the estate equally during the father's life
as after his death. The liability thus stated stands quite apart
from acquiescence and rests on a transfer to the time of the
of the capacity in which his father had been sued. For Bombay see RamlaVs
Case, 1 Bom. H. C. E. App., pp. 52, 72.
(«) Anant Jagannatha v. Atmaram, S. A. 301 of 1881.
(o) See Act. IX. of 1872, sec. 197.
(p) Nanhak Joti v. Jaimangal Chauhey, I. L. E. 3 All. 294.
iq) Deva Singh v. Ram Manohar, I. L. E. 2 All. 746 ; Bika Singh v. Lachman
Singh, ibid. 800. See also Chandra Sen v. Ganga Ram, ibid. 899.
(r) I. L. E. 2 All. 267.
(s) Laljee Suhoy v. Fakeer Chand, I. L. E. 6 Cal. 135, 139.
FAMILY IN UNION. 577
father's life of a duty to pay his debts which the Hindu
authorities expressly impose only after his death.
These and many other cases are considered in the judgment of
Field, J., in Ramphul v. Deg Narain Singh (t), and the conclu-
sions he arrives at are that a ' ' father may alienate the family
property to discharge debts incurred by him for purposes not
illegal or immoral," but that where the father has not " aliened
or mortgaged the family property, but it is sought by suit to make
that property liable to satisfy a debt incurred by the father, the
son as well as the father must be made a party to the suit,""
failing which the consequent sale of the father's interest does not
affect that of the son. Girdhari Lai's Case is explained as one in
which the father, acting as manager, mortgaged the family estate,
and the debt not being an immoral one (v) the interest of the son
as well as the father was bound by the transaction. The question
of whether the son could be bound by a decree in a suit to which
he was not a party " was not raised . . . and therefore nothing
was decided on this point." In Been DayaVs Case it is pointed
out the question was raised, and the father's interest only having
been sold the issue of legal necessity for the original debt was
pronounced immaterial.
Badri Roy v. Bhagtvat Narain Dohey (w) seems to agree with
the one just referred to. In it a son, a widow and a grandmotheL-
of a defendant were allowed to recover their shares (x) from a
judgment creditor who had purchased in execution of a money
decree. But the purchaser having taken an assignment of a prior
decree on a mortgage against the same defendant they were held
bound by that liability, they not having shown that the debt was
contracted for immoral purposes. The voluntary incumbrance and
the decree obtained on it availed against the son, but not the
sale in execution (y). In Upooroop' Tewary v. Lalla Bundhjee
(t) T. L. E. 8 Cal. 517.
(o) As manager the father was bound to act in the interest of the family,
and any stranger dealing with him was bound to establish a fairly reasonable
belief that this duty was observed as a condition of enforcing his transaction
against the family. The question of immorality could, under the Hindu law,
arise for the son only when it was a question of paying the debt of a father
deceased or long absent. See below.
(w) I. L. E. 8 Cal. 649.
(x) As to the " shares " of the widow and grandmother, see above, pp. 295,
321 ; and below, sec. 7 A. la, lb.
(y) The Madras doctrine is the reverse of this, see below.
H.L. 37
578 HINDU LAW. [BOOK II.
Sahay (z) on the other hand, it ia laid down that though the moral
duty resting on the son gives effect to a father's alienation of the
estate as against the son and his share while the son is an infant,
yet when the son is an adult the father cannot, even to pay off his
debts, dispose of the son's share without his consent. The assent
might, it was thought, be implied from quiescence coupled with
knowledge of the father's dealing {a). In Umhica Prasad Tewary
V. Ram Sahay Lall (b) it is said that by a decree against a father
alone if he have been sued as representing the family his son's
interests are generally bound. It does not seem to have been
thought that the father need be sued specifically as representative,
though without such specification the sons could not know for
certain that their property was aimed at. The case of Suraj
Bunsee Kooer (c) is relied on, but that decision saves the purchaser
only if " the property was properly liable to satisfy the degree if
the decree had been properly given against the father." This of
course involves the question in every case of what property under
the circumstances was liable under a decree, against the father
alone, and generally of how far without specification he can be
held to have represented his sons and co-owners of the estate.
The effect of the judgment in Girdharilal v. Kantoo Lall on
which all these judgments rest, must, as in other cases, be gathered
from the language of the Judicial Committee in relation to the
facts as they understood them. There was an ancestral estate
alienated after the birth of a son to satisfy a decree against his
father. The son sued on the ground that no part of the joint estate
was alienable by the father. The creditor maintained that the
(z) I. L. E. 6 Cal., at p. 753. See next note. This case has been dis-
tinguished in Simbhunath v. Golah Singh, L. E. 14 I. A. 77.
(a) It may be noted that the Mitakshara and other authorities do not, even
after the father's death, impose the duty of paying his debts on his son until
the son attains his majority. See below, and 2 Str. H. L. 279. A managing
member and those dealing with him are bound to have regard to the interests of
infant coparceners, Saravana Tevan v. Muttayi Ammal, 6 M. H. C. E., at
p. 379.
The provisions of the Hindu law exempting an infant while such from
responsibility for ancestral debts, and limiting liability on account of a grand-
father's debts to the amount of the principal, may be compared with the 10th
Article of Magna Charta. By this interest is not to run during the minority
of the successor, and the king himself is to obtain satisfaction only out of the
movables specifically charged. See Bracton, fol. 61a.
(b) I. L. E. 8 Cal. 898.
(c) L. E. 6 I. A. 88.
FAMILY IN UNION. 579
whole had passed to him ; and this view was taken by the Judicial
Committee. In Maddan Thakur's Case a particular part of the
estate had been sold in execution of a decree against the father,
and here too^ the son's claim was rejected. In these instances the
divisible nature of the patrimony as a means of giving effect to
the father's transactions was not asserted on either side (d), but
in Been DayaVs Case which followed, this divisibility of interests
was made the basis of the decision (e). The claim was one for
which the son's share would undoubtedly have been liable had
the son been made a defendant; but as the father only was sued,
the nature of the obligation, as in itself binding or not binding the
son, was pronounced immaterial. Only the father's own share,
it was said, could thus be made answerable to the creditor. There
may have been a possible question as between the father and other
co-sharers, but this could not affect the relations of the father and
the son inter se, and the son's rights only were insisted and
adjudicated on. It would seem therefore that, at any rate where
there is no specification of a representative character ascribed to
the father, a suit and a decree against him alone and a sale in
execution of such a decree cannot generally be understood as
binding the son's share except under special circumstances to be
appreciated by the Court.
In Sumj Biinsee Kooers Case (/) the effect of GirdharVs Case
is stated on the highest authority as this : " It treats the obligation
of a son to pay his father's debts unless contracted for an immoral
purpose, as affording of itself a sufficient answer to a suit brought
by a son, either to impeach sales by private contract for the
purpose of raising money in order to satisfy pre-existing debts, or
to recover property sold in execution of decrees of Court." The
same judgment imposes on a purchaser in execution, as a condi-
tion of s,ecurity against a son's claim, the obligation of seeing that
the property sold in execution " was property liable to satisfy the
decree if the decree had been given properly against the father,"
and the conclusion is (g) : First, That where joint ancestral pro-
perty has passed out of a joint family, either under a conveyance
(d) A dictum in Syed Tuffuzool Hoosein Khan v. RugJioonath Persad,
14 M. I. A., at p. 50, pronounces an undivided share liable for a decree, but
" not property the subject of seizure (by attachment) but rather by process
direct against the owner of it."
(e) So in Rai Narain Dass v. Nownit Loll, I. L. E. 4 Cal. 809.
(f) L. R. 6 I. A. 88, 105.
(g) L. R. 6 1. A., at p. 106.
580 HINDU LAW. [BOOK II.
executed by a father in consideration of an antecedent debt,
or in order to raise money to pay off an antecedent debt, or under
a sale in execution of a decree for the father's debt, his sons, by
reason of their duty to pay their father's debts, cannot recover
that property, unless they show that the debts were contracted for
immoral purposes, and that the purchasers had notice that they
were so contracted ; and secondly, That the purchasers at an execu-
tion sale, being strangers to the suit, if they have not notice that
the debts were so contracted, are not bound to make enquiry
beyond what appears on the face of the proceedings. It will be
observed that this judgment assumes that in some way the joint
property does pass out of the family by the father's conveyance,
or by a sale in execution on a decree against him. This must mean
" pnma facie," for otherwise there could be no ground for a
reclamation of the property by the son, which was successfully
made in the case, on the ground that the debt had been improperly
incurred, and that the purchaser in execution had notice of the
objection to the sale taken on that account. As to whether in
a case in which the property has not been sold the son can be
made answerable in his share for the father's debt needlessly but
not viciously incurred, this judgment is silent. But where the
whole estate is made liable by the father's alienation, or a decree
against him, no purpose could be served by maintaining a law
exempting the son and his share in the estate from direct pro-
ceedings. In these therefore as well as in suing to recover his
part of the patrimony sold as his father's he must for consistency's
sake now be called on to prove that the transaction sued on was an
immoral one, or gave effect to an immoral one, within the know-
ledge of the plaintiff suing on it. Should the son, however, not be
joined as a defendant with his father, it must be observed that in
Deen DayaVs Case the property had " passed out of the family "
equally as in GirdharVs Case, and it was on the finding liable for
the debt; but still the judgment in the case says that " whatever
may have been the nature of the debt the appellant cannot be
taken to have acquired by the execution sale more than the right,
title, and interest of the judgment debtor."
In Suraj Bunsee Kooer v. Sheo Prasad Singh (h) it is said on
this point that " it has been ruled that the purchaser of undivided
property at an execution sale during the life of the debtor for his
separate debt does acquire his share in such property with the
(h) L E. 6 I. A. 88, 103.
FAMILY IN UNION. 581
power of ascertaining and realizing it by a partition." Probably
what was meant was that even in the case of a separate debt the
sale under a decree was good as against the judgment-debtor's own
share, and such was the effect of the decision of S. Bunsee Kooer's
appeal. The other question of the father's transactions binding
the son as to the son's share in the patrimony in all cases in which
he cannot prove the transactions tainted with immorality, of which
the purchaser had notice, was left to be governed still by Girdhari's
Case, subject only where a father had been sued alone, and not
expressly as a representative, to the ruling in Deen Dayal v.
Jagdeep Narciyan,. In the former of these cases it was said, " The
suit was brought by Kantoo Lall and Mahabeer, not for the purpose
of recovering their respective shares, because they had no distinct
or definite shares to recover, but to recover the whole property on
the ground that the sale by the father was void " (?*). It was sup-
posed they must recover all or none. The incapacity of a co-sharer
to deal alone with his share was laid down to Deen DayaVs Case
a received doctrine in Bengal (k), and the creditor's remedy could
be based only on the doctrine of a complete representation of the
family as to its patrimony by the father. Deen DayaVs Case
broke down this conception by its incompatibility, and the essen-
tially integral character of the patrimony on which both parties
relied in Girdhari's Case being abolished, the father's share could
be attacked alone, and being open to attack alone, was, subse-
quently to Deen DayaVs Case, to be held as attacked alone unless
other shares were specified, and their owners made parties
defendant.
In the cases enumerated in (I) the Judicial Committee have laid
down that the sale of " right, title and interest " of the father
alone in execution of a decree passed the entire family property;
while in those arranged under (w) it was held that the father's
(i) L. K. 1 I. A., at p. 329.
(k) See Musst. Phoolbas Koonwur v. Lalla Jogeshur Sahoy, L. R. 3 I. A.,
at pp. 22, 26; Raja Ram Narain Singh v. Pertum Singh, 11 B. L. R., at p. 401.
(l) Girdhari Lai v. Kantoo Lai, L. R. 1 I. A. 321 ; Nanomi Bahuasin v.
Modun Mohun, L. R. 13 I. A. 1 ; S. C. I. L. R. 13 Cal. 21; Bhagbat v. Girja,
L. R. 15 I. A. 99; S. C. I. L. R. 15 Cal. 717; Minakshi v. Innudi Konaka,
L. R. 16 I. A. 1 ; S. C. I. L. R. 12 Mad. 142 ; Mahahir v. Moheswar, L. R. 17
I A. 11 ; S. C. I. L. R. 17 Cal. 584.
(m) Deendyal v. Jugdeep, L. R. 4 I. A. 247 ; Suraj Bansi v. Sheo Persad,
,L. R. 6 I. A. 88; Hurdey v. Rooder, L. R. 11 I. A. 26; S. C. I. L. R. 10
Cal. 626 ; Simbhoonath v. Golab Singh, L. R. 14 I. A. 77 ; S. C. I. L. R. U
Cal. 572; Pettachi v. Sangili, L. R. 14 I. A. 84; S. C. I. L. R. 10 Mad. 241.
582 HINDU LAW. [BOOK II.
undivided interest alone passed. In Sripat-Singh Dugar v.
Maharajah Sir Prodyot Kumar Tagor (n), decided on November
10, 1916, their Lordships had held that on the sale under a decree
of ' ' the right, title and interest " of a judgment debtor in certain
property, the judgment debtor being the father the whole family
estate was sold unless the debt contracted was incurred for illegal
or immoral purposes. The case of Thakur Sri Tri Radha Krishna
Chanderji v. Ram Bahadur (o) lays down that although the
purchaser at an execution sale of " right, title and interest " of the
judgment debtor (father) as well as the sons thought that the sale
was of the entire family interest, the sons having been made parties
to the execution proceedings against which they had unsuccessfully
appealed to the High Court, the interest passed was the life-estate
of the father. His case thus cuts at the very root of the principles
laid down in the cases already set forth in the preceding pages of
this book.
In Madras the same questions have been learnedly and
elaborately discussed (p). The result is concisely stated by
Kindersley, J : " The true doctrine of Hindu law appears to be
that the obligation of the son to pay his father's debts does not
arise until the father's death. It is the duty of the father, as long
as he lives, to pay his own separate debts. But the cases of
Girdhari hall and Muddun Thakoor go further and rule that even
in the undivided father's lifetime, where there has been a decree
against -the father for debts which were neither immoral nor illegal,
and ancestral immovable property has been sold in execution of
such decree or under pressure of such execution, the son cannot
recover against a bona fide purchaser for value. The cases of
Girdhari hall and Muddan Thakoor appear to imply that a son is
responsible for his father's debts even in the lifetime of the father. "
It is only necessary to add to this that satisfaction of this respon-
sibility is thus far limited to the share of the son in the patrimony,
and does not extend to his other property (q). In the Court of
first instance the ruling in Deen Dayal v. Jagdeep Narayan had
(n) L. K. 44 I. A. 1.
(o) P. C. Judgment, Aug. 3, 1917.
(p) Ponappa Pillai v. Pappuvayangar, I. L. E. 4 Mad. 1-73.
(q) The Mitakshara is emphatic in declaring that the son's responsibility,
where it exists, arises from sonship, though no property may have come to the
son, Comm. on Slokas 47 and 50 of the Vyavaharadhyaya of Yajnavalkya
(translated in the Appendix to this work). So the Vyav. May., Chap. V.,
sec. 4, para. 14
FAMILY IN UNION. 583
been applied to the case, as the decree and execution had been
obtained against the father alone (r). Of this there is hardly any
discussion in the judgments, but seeing that it introduced a modi-
fication of the law of actions as conceived in Girdhari's Case it
was important that effect should be given to it, especially since in
Madras, as in Bombay, the creditor's equity to enforce partition
having long been recognized (s), a suit against a father alone might
most reasonably have been held to have had this remedy in view.
As observed by Kernan, J. (t), " there can be no doubt that a
person not a party to a suit is not bound by the decree by way of
estoppel, and it is open to him to impeach the title of the pur-
chaser on any ground legally sufficient." It may be added that
one person or his property cannot be affected by proceedings
against another not his representative and whose interest is dis-
tinguishable (v). This was the decision as between a living father
and son in Deen DayaVs Case, and it seems to have afforded a
" ground legally sufficient " in Ponappa's Case for impeaching a
sale under proceedings in which the son or the son's interest was
not named. Such seems too to be the effect of the still more recent
decision in the Suhramnamyayy anas' Case on a suit upon a mort-
gage executed by an elder (managing) brother in renewal of one of
the deceased father, and a decree and sale in execution against
that brother alone of the family property {w).
One curious result of the Madras decisions seems to be that the
creditor who takes from the father a mortgage as security for his
claim puts himself in a worse position than one who relies on the
simple obligation. The latter by suing the father alone may bind
the whole family and its estate, while the former must join all the
(r) See, however, Sivasankara Mudali v. Parvati Anni, I. L. K. 4 Mad. 96.
Girdhari LalVs Case is said not to apply to a nephew coparcener; necessity
must be proved, Gangulu v. Ancha Bapulu, ibid., p. 73.
(s) Suraj Bunsee's Case, L. K. 6 1. A., at p. 102.
(t) Ponappa Pillai v. Pappuvayangar, I. L. K. 4 Mad., at p. 71.
(c) Thus in Ponappa 's Case it was said that in a suit on the mortgage the
coparceners could not be bound unless made parties so as to give them an oppor-
tunity of redeeming. See Chockalinga v. Suhharaya, I. L. E. 5 Mad., at
p. 135, wherein it was ruled that a decree on a hypothecation against a father
could not operate against his sons not made defendants; and Dasaradhi v.
Joddumoni, ibid., 193, where redemption was allowed against a sale under a
decree on a mortgage against a manager.
(w) Subramaniyayyan v. Subramaniyayyan, I. L. K. 5 Mad. 125, by three
Judges against two, who would have allowed the younger brother to recover his
share only on paying his share of the mortgage debt.
584 HINDU LAW. [BOOK II.
sons as defendants in order to foreclose their rights by his suit on
the mortgage. Yet it is not altogether obvious if a suit directed
against the father alone can bind the sons as co-owners why a suit
against him as mortgagor (and owner) should not bind the sons as
co-mortgagors; the power of representation by the father would
seem as consistent with principle in the one case as in the other.
What would be the legal position of the sons where the mortgagee
had sold under a power of sale in a mortgage by their father with-
out calling on the sons to redeem is a point still to be decided.
There is apparently no distinction in principle between such a
sale and a sale under a decree in a suit on the mortgage. In every
case of mortgage there is a personal obligation of the mortgagor
(x) as a debtor, the mortgage being in its nature an accessory
assurance (y) ; and it would seem as competent to a father to sell
through the agency of the mortgagee on a condition satisfied as to
sell directly for the discharge of a similar debt (z), which he may
do in ordinary cases. But on the other hand, if the son's interests
cannot be sold through the Court without an opportunity to the
sons of redeeming, neither ought they to be sold without a suit or
formal notice to redeem served on the sons equally as on the
father. Where under a decree against a father on a debt secured
by a mortgage the mortgaged family estate had been sold " as
the right, title, and interest " of the father, and there was nothing
to show whether the execution was in virtue of the personal
remedy or of the lien on the property, the sale was upheld against
the sons seeking a partition with a view to recover their shares.
The learned Judges thought, apparently, that the sale had taken
place to satisfy the personal obligation so far as this was in excess
of what could properly be satisfied by the execution against the
mortgaged property as such (a), and that thus the sons' interests
as distinguished from the father's were effectually disposed of as
(x) Wilson V. Tooker, 5. Br. Pari, cases, 193; Goodman v. Grierson, 2 B.
& B. 274, 279; Com. Dig. Tr. Chancery (4 A. 3).
(y) See Butler's note to Co. Litt. 205a; Fisher on Mortg. Ixxii., and per
Lindley, J., in Keith v. Burrows, L. E. I. C. P. D., at p. 731.
(z) See per Sir C. Turner, C.J., in Ponappa Pillai v. Pappuvayangar,
I L. E. 4 Mad. 47. According to the Sadr Court the father could not alien
the patrimony except under urgent necessity, Muthumarien v. Lakshmi
M. S. D. A. Dec. for 1860, p. 227.
(a) An attachment and sale as for an unsecured debt are not necessary in
giving effect to the specific lien created by a mortgage. Dayachand v. Hem-
chand, J. L. E. 4 Bom. 515.
FAMILY IN UNION. 585
his, though in a sale expressly under the mortgage they would have
been saved (b). In a case in which the paternal and filial relation
did not subsist as a ground for a special liability, the family pro-
perty having been mortgaged by one member of an undivided
family and sold, in execution of a decree against that one alone, to
the judgment creditor, it was held that the latter had obtained a
title only to the share of his own judgment debtor; that another
member could recover his share from the purchaser put into pos-
session of the whole ; and that the purchaser could not set up the
defence that the debt sued on was in fact one by which all the
members were bound (c). In another recent case it was ruled that
the interest of a manager in a family estate was not assets for the
satisfaction, after his death, of a decree obtained against him, but
not plainly directed against other members of the united fa.mily.
In the same case two sons were directed to satisfy the decree so far
as it bore on their father to the extent of the assets inherited from
him. But in these were not to be included his share of the joint
family estate which they took by survivorship (d). This view,
though repeated in Karpakambal v. Suhhayyan (e), seems opposed
to that expressed by the Judicial Committee in Muttayan
Chettiar's Case (/), which for ^ladras must be conclusive. In
the case of a decree against a father sought to be executed against
property made over by him to his infant sons as compensation for
an injury by him to their shares (g) it was held that such execu-
tion could not be had because the infant coparceners had not been
parties to the suit, and that a suit could not be maintained against
them (their father being alive) on the original cause of action, as
this had been exhausted by the suit against the father (h).
(h) Srinivasa Nayuda v. Yelaya Nayuda, I. L. R. 5 Mad. 251.
(c) Armugam Pillai v. Sabapathi Padiachi, I. L. R. 6 Mad. 12. This agrees
with Deen DayaVs Case, but, if the family were bound by the debt, seems hard
to reconcile with Ponappa Pillai v. Pappuvayanqar, I. L. R. 4 Mad. 1. See
above, p. 168.
(d) Ravi Varma v. Y. Roman, I. L. R. 5 Mad. 223.
(e) I. L. R. 5 Mad. 234.
(/) Above, p. 168; L. R. 9 1. A., at p. 145.
ig) This may have made it separate property ; the sons indeed could not other-
wise benefit by the release in their favour of the father's interest.
(h) See Gurusami Chetti v. Samurti Chinna Chetti, I. L. R. 6 Mad. 37. For
this Innes, J., refers to King v. Hoare, 13 Mees. & W. 494; Brinsmead v.
Harrison, L. R. 7 C. P. 547, and Hemendro Coomar Mullick v. Rajendro Lall
Moonshee, I. L. R. 3 Cal. 353, as showing that a joint contract can be enforced
586 HINDU LAW. [BOOK II.
In Bombay, by a closer adherence to the Hindu authorities,
greater consistency has been maintained. In all ordinary cases
alienation of the whole estate or of part of an impartible estate by
but once, whence d fortiori the same rule applies to proceedings on an obligation
arising from the relation of membership of a joint family.
In the case of ex parte Higgins in re Tyler, 27 L. J. Bank. 27, a remedy in
bankruptcy against the joint estate was held barred by a previous suit against
one of two partners which proved infructuous. But in that case Knight
Bruce, L.J., said : "I feel myself almost ashamed to find myself differing
from the Commissioner " (who had admitted the claim against the joint estate).
In Comyns's Dig. (K. 4), 1, 4, and (L. 9) the distinction is drawn that where
damages are uncertain only one action can be maintained, but where the thing
sought is certain even execution does not bar a suit against another obligor,
ex. gr. on a bond. In Drake v. Mitchell, 3 Ea., at p. 258, Lord Ellenborough
says that a judgment is but a security for the original cause of action and does
not extinguish before satisfaction any collateral remedy available to the party.
Brinsmead v. Harrison is discussed in ex parte Drake, L. R. 5 Ch. D. 866,
from which it will be seen that an infructuous judgment does not extinguish
the original right in a case of trover or detinue. Although, therefore, generally
" where there is res judicata the original cause of action is gone " {per Lord
Selborne in Lockyer v. Ferryman, L. E. 2 App. C. 519), and election to sue B.
bars a suit against C. (see Kendall v. Hamilton, L. R. 3 C. P. D. 403), yet the
primary right may not in all cases be converted or absorbed by a suit. Nor
where the cause of action arising from non-fulfilment of the corresponding duty
is one which attaches in aliquot parts to several persons or as an aggregate
to any one of several, but not to more than one, does it seem that on principle
one suit though infructuous should bar another seeking the same remedy in part
or as a whole. The English law on this point merging a remedy against C
in a judgment against B, rather imitates the earlier and ruder Roman law than
its later and refined form. A "cause of action" is really a relation between
persons, and the substitution of a different person as the subject of the right or
of the obligation makes the cause of action different too, unless the new party
stands to the former one as a representative. As a representative he should
be subject to the proceedings taken against his predecessor. Thus children, if
represented by their father, should be liable on a decree against him; if not,
they should not be guarded against a suit on what must be a different cause
of action because of the change of parties.
The Roman law, while it allowed the plea of res judicata, allowed also the
replication de re secundum se judicata, or judgment against the party pleading,
even between the same litigants (Di. Lib. 44, Ti. II. Lex. 9 § 1, and Voet's
Comm. ad loc), and under the English law it seems that a judgment as between
the same parties is not a bar to a fresh suit unless it has negatived the right
sued on (see Com. Dig. C. L. 4) even though there may have been a verdict
against the plaintiff (see per Bramwell, L.J., in Poyser v. Minors, L. R. 7
Q B. D., at p. 338). And under the Hindu law the rule is " one against whom
a judgment had formerly been given if he bring forward the matter again,
must be answered by a plea of former judgment." (Mit. Administration of
Justice, sec. 5, para. 10.) This is exactly the rule of the middle and later
I
FAMILY IN UNION. 587
a single co-sharer has been held invalid as against the others {i).
This has been so even as regards a father (fe). His grant out of an
inam village was held to require the attestation of his son to give
it validity as against him (i), the attestation being taken as a sign
of assent. A father can under ordinary circumstances alienate
or mortgage the patrimony to satisfy his own personal antecedent
debt not incurred for an illegal or immoral purpose, which will be
enforced against the sons by a suit or by proceedings in execution
to which they need not be made parties (m). According to some
authorities the power of the father in these respects is unrestricted
even for his own present debt (n). The interests of sons, however,
in the family estate are liable to satisfy a father's debt (o), and a
money or mortgage decree against the father alone can be executed
against the sons even after the father's death as his legal repre-
sentatives, when the sons can raise the question of the legality of
the debt (p) under sees. 50, 52, and 53 of the Civil Procedure Code
(Act 8) of 1908. In the case of ordinary coparceners, alienations
Roman law, and does not help a defendant against a plaintiff who has gained
a previous judgment. The law of procedure forbids a second suit on the same
cause by a positive rule in order to shorten litigation, and it enables a judgment
once obtained to be kept alive for twelve years, but these provisions between
the same parties are rather a supersession of the general principle of juris-
prudence, and cannot properly affect a suit by A. against C. on the ground of
a prior suit by A. against B., except in so far as C. represents B., or else the
remedy was alternative, and A. made an election by which C. was exonerated.
(i) Mit., Chap. I., sec. 1, para. 30. Comp. Mohabeer PusJiak v. Ramyad
Singh, 20 C. W. R., at p. 194.
(k) Mit., Chap. I., sec. 1, para. 28. Comp. Raja Ram Narain v. Pertur
Singh, 20 C. W. E. 189.
(0 Pandurang v. Nam, Sel. Rep. 186; see Steele, L. C. 68, 237, 400.
(w) Girdhari Lall v. Kantoo Lai, L. R. 1 I. A. 321; Jagahhai v. Jagjivandas,
I. L. R. 11 Bom. 37; Krishnaji v. Renge, I. L. R. 12 Bom. 625; Laxman v.
Vinayack, I. L. R. 40 Bom. 329. Cf. Sakharam v. Sitaram, I. L. R. 11 Bom.
42; Narayan v, Venkatacharya, I. L. R. 28 Bom. 408; for alienation by grand-
father.
(n) Debi v. Jadu, I. L. R. 24 All. 459; Chindambra v. Koothapemmal,
I. L. R. 27 Mad. 326.
(o) Jairam v. Kondia, ibid., 361; Narayanrav v. Javherbahu, I. L. R. 12
Bom. 158; Lallu v. Motiram, I. L. R, 13 Bom. 653; Chintamanrav v. Kashi-
nath, I. L. R. 14 Bom. 320; Appaji v. Keshav, I. L. R. 15 Bom. 13; Coverji v.
Bhoga, I. L. R. 17 Bom. 718 ; Umed v. Goman, I. L. R. 20 Bom. 385 ; Bhana
v. Chindhu, I. L. R. 21 Bom. 616 ; Joharmal v. Eknath, I. L. R. 24 Bom. 343;
Durbar v. Harsur, I. L. R. 32 Bom. 348; Shivaram v. Sakharam, I. L. R.
33 Bom. 39; Dalahaya v. Narayan, I. L. R. 36 Bom. 68.
(p) Umed v. Goman, I. L. R. 20 Bom, 386; Amarchand v. Sebakchand,
I. L. R. 34 Cal. 642, F. B.
588 HINDU LAW. [BOOK II.
by them for valuable consideration, or sale of their interests in
execution of decrees, have been held good to entitle the purchaser
to claim to the extent of their shares ascertained by partition, but
no farther (q). In this sense the purchaser becomes a tenant in
common with the other parceners (r). For the ordinary debts of a
parcener his coparceners are not answerable (s). His own share
may be made answerable by proceedings taken and carried through
to attachment during his life but not afterwards (t). His gift or
bequest of his share is invalid as the right to a severance of it is
given to the purchaser or creditor only to prevent fraud (v). In
case of distress or to perform an indispensable duty a single copar-
cener may dispose of so much of the family property as is necessary
for the occasion (w). His debts incurred for such a purpose must be
paid by all the parceners to the extent of the whole estate (x).
This applies even to the debt of a son as binding the father, though
the latter is not generally responsible (y). If the parcener be
merely sued the coparceners are not affected by that, without a
decree and an attachment of the estate for the realization of his
share (z). But this attachment enables the attaching creditor to
iq) Gundo v. Rambhat, 1 Bom. H. C. E. 39; Pandurang v. Bhasker, 11 Bom.
H. C. E. 72; Udaram v. Ranu, ibid., 76; Balaji Anant v. Ganesh Janardhan,
I. L. E. 5 Bom. 499 ; Ranga v. Ganapa, I, L. E, 15 Bom. 673. The same is
the law in Madras — Virasvami v. Ayyasvami, 1 M. H. C. E. 471. In Bengal,
Behar, and North- West Provinces no alienation of an undivided share is
allowed— SadahuH v. Foolhash, 12 W. E. 1, F. B. ; Madho v. Mehrhan, I. L. E.
18 Cal. 157, P. C; S. C. L. E. 17 I. A. 194; Balgohind v. Narain, L. E. 20
I. A. 116.
(r) Udaram v. Ranu, 11 Bom. H. C. E., p. 81; Krishnaji Rajvade v. Sitaram
Jakhi, I. L. E. 5 Bom. 496.
(s) Narsinhhhat v. Chenappa, I. L. E. 2 Bom. 479; St. L. C. 40, 217.
(t) Udaram v. Ranu, 11 Bom. H. C. E., p. 85; see above, pp. 666, 567; Suraj
Bunsi Kooer v. Sheo Proshad, L. E. 6 I. A. 88, 108; DeendeyaVs Case, L. E. 4
I. A. 247; Rai Balkishen v. Sitaram, I. L. E. 7 All. 731; Bailur Krishna v.
Lakshman, I. L. E. 4 Mad. 302.
(v) See above, p. 76, and the cases there cited; Suraj Bunsee Kooer's Case,
above, p. 582; Lakshman v. Ramchandra, L. E. 7 I. A. 18.
(w) Mit., Chap. I., sec. 1, para. 28; Steele, L. C. 54; Daji Himah v. Sadram,
I. L. E. 12 Bom. 18.
(x) Mahadev v. Narain Mahadev, 3 Morr. 346; Vyav. May., Chap. V., sec. 5,
para. 20; Col. Dig., Book V., Chap. VI., T. 373, Comm. ad. fin.; Book I.,
Chap, v., T. 181, 193, 194; Book II., Chap. IV., T. 55; Poona Sastri,
August 17, 1845, MS. 685; see 1 Str. H. L. 276; Steele, L. C. 219.
(y) Col. Dig., Book I., T. 214, 215 ; Steele, L. C. 40, 178.
(z) Vasudev Bhat v. Venkatesh Sanhhav, 10 Bom. H. C. E. 139, 160.
FAMILY IN UNION. 589
proceed even though his debtor should die (a). Nor can a pur-
chaser of a share be defeated by subsequent proceedings for a
partition to which he is not a party (b).
Where the purchaser of a single coparcener's share has obtained
peaceable possession, the Court, treating him as a tenant in com-
mon, has refused to oust him at the suit of the other coparceners (c).
Being in possession, the single parcener has been supposed to
be able to transfer the possession, where the transfer was not
resisted, with such an accompanying right as was vested in him-
self (d). This doctrine involves a certain difficulty, seeing that the
existence of any distinct right in the individual coparcener, except
a right to partition and its result, admits of question; and the
occupation of a distinct part of the common property by one
coparcener may be conceived as merely permitted by the family,
and as to outsiders held on behalf of the family, not of the indi-
vidual (e). Such an occupation is to be regarded perhaps rather
as a use of the property, occupied in virtue of the occupier's
domestic relation to the aggregate family, than a true possession (/)
implying an exclusion of others' entrance and exercise of will
within the given area (g). The notion of a separable possession
(a) See Suraj Bunsee Kooer's Case, supra; B. Krishna Rao v. Lakshmana
Shanhhogue, I. L. E. 4 Mad. 306.
(b) Apaji Govind v. Naro Vital Ghate, H. C. P. J. F. for 1882, p. 335.
(c) Mahahalaya v. Timaya, 12 Bom. H. C. K. 138; Kallappa v. Venkatesh,
I. L. K. 2 Bom. 676.
(d) Mahahalaya v. Timaya, 12 Bom. H. C. K., at p. 140.
(e) That the possession of a single parcener is prima facie a derivative one
ranking as the possession of all, see Yusaf Ali Khan v. Chubhee Singh, 5 N.
W. P. E. 122; Sheo Pershad Singh v. Leelah Singh, 20 C. W. E. 160; Heeralal
Roy V. Bidyadhur Roy, 21 C. W. E. 343. Yet it veas said that piossession could
not be recovered from a member excluding his co-sharers, Govind Chunder
Ghose V. Ram Coomar Dey, 24 C. W. E. 393. It would seem that they were
entitled to co-possession. A distinct exclusion of a co-sharer is incompatible, of
course, with his retaining co-possession, and limitation begins to run against him
in favour of those who then hold adversely to him, Jowala Buksh v. Dkarum
Singh, 10 M. I. A., at p. 535. A parcener retaining exclusive possession of a
part for several years would thus expose himself to a presumption that a
partition had been made allotting that part as his share to him, unless he could
show his concurrent joint enjoyment of the estate at large. See below,
sec. 4 D., and Book II., Chap. IV.
(/) See Savigny, Poss. sees. 11, 23, 25; Vin. Abr. XVI. 454; Co. Lit. 277a;
Page v. Selfly, BulVs N. P. 102b ; Doe v. Brightwen, 10 Ea. 583; Heeralal Roy
v. Bidyadhur Roy, 21 C. W. E. 343, C. E.
(g) A separate possession on behalf of himself alone, not on behalf of all,
should apparently involve a liability to account, which is not recognized. See
Konerrav v. Gurrav, I. L. E. 5 Bom. 589.
590 HINDU LAW. [BOOK II.
corresponds, however, to that of the single coparcener's total right
as separable in thought and in law, though undivided, from the
others so as to be a possible object of transactions, for if the
co-ownership may be thus decomposed, so it seems may the
co-possession of the members of a united family (h). At this point
the development of the idea of separable rights as combined by
addition in the common right has stopped. A case in which a
mortgagee of one parcener's share was put into joint possession
with another parcener resisting the intrusion has not (i) been
followed.
In the case of a manager he can bind the whole estate by trans-
actions for its benefit (k) or which the other party reasonably
thinks so. He is allowed a fair latitude of discretion (l). In
Davlatrao v. Narayanrao (m) it was said " a reasonable degree of
latitude is allowed to the members of a Hindu family in the
absence of . . . fraud or . . . profligacy, and the expenditure
of a managing member whose acts (n) are not protested against,
or checked by legal proceedings, is ordinarily presumed to be on
account of the family, just as his acquisitions are made for its
benefit " (o). The extent of his general powers is well known in
Hindu societ}^ He may carry on a family business in the usual
way (p) for the common benefit (g). He may mortgage the
common property for the common benefit and use of the
undivided family (?-). But he is far from having unfettered
power (s). The person to whom he mortgages, and especially to
(h) Compare the right arising in partition from separate occupation, below,
sec. 7 A. 1 fe.
(i) See Balaji Anant Rajadiksha v. Ganesh Janardhan Kamati, I. L. E, 6
Bom. 499, and the cases there referred to; also Maruti v. Lilachand, I. L. E.
6 Bom. 564, and other cases quoted below.
(k) Bulakliidas v. Ghama, Bom. H. C. P. J. 1880, p. 224; Hari Vithal v.
Jairam, I. L. E. 14 Bom. 529; Sakharam v. Deoji, I. L. E. 23 Bom. 372;
Comp. Komhi v. Lakshmi, I. L. E. 5 Mad., at p. 207.
(I) Babaji v. Krishnaji, I. L. E. 2 Bom. 666.
(m) H. C. P. J. F. for 1877, p. 175.
in) i.e. his known acts.
(o) Comp. Tandavaraya Mudali v. Valli Ammal, 1 Mad. H. C. E. 398, and
Hanooman Persad Pande's Case, 6 M. I. A. 393, as to the manager of a minor's
estate.
(p) Comp. Joykisto Cowar v. Nittyanund Nundy, I. L. E. 3 Cal. 738.
(q) SamalhJiai v. Someshvar et al., I. L. E. 5 Bom. 38.
(r) Gundo v. Ramhhat, 1 Bom. H. C. E. 39.
(s) Baji Shamraj v. Dev bin Balaji, H. C. P. J. F. for 1879, p. 238.
FAMILY IN UNION. 591
whom he sells {t) any part of the patrimony is bound to all
reasonable care, and where the interests of minors are concerned
to extreme caution (v). But even where the other coparceners
are adults, charges incurred by a manager are binding except as
against himself only when incurred for the needs of the family or
with the assent, express or implied, of its members (w). When
the manager obviously exceeds reasonable limits those who deal
with him do so at their peril, and no unfairness will be tolerated.
Thus a contract with a manager defrauding the family is not
enforcible (x) and the manager is not allowed to retain a double
share in what he has acquired in that position (?/).
Although a judicial sale is not to be disturbed because some minors
were not made parties to the proceedings provided their interests
did not suffer, in all suits against the family or to affect its common
estate all the members must, under ordinary circumstances, be
made defendants (z), though under special circumstances the
manager may as manager be sued so as to bind the whole family (a),
as indeed it would seem may a member not a manager, or not sued
expressly as manager, but deemed under exceptional conditions to
have represented the family (b). Apart from such cases as these
(t) Trimhak v. Gopalshet, 1 Bom. H. C. R. 27; Comp. Mit., Chap. I., sec. I.,
para. 32; Steele, L. C. 54, 209.
(v) Ramlal v. Lakmichand, 1 Bom. H. C. R., at pp. 72, 73, App. ; 1 Str.
H. L. 202 ; Comp. Kumarsami v. Pala N. Chetti, I. L. R. 1 Mad. 385 ; Chetty
Colum Comara Venkatachella Reddyar v. Raja Rungasami, 8 M. I. A., at
p. 323.
(w) 1 Str. H. L. 199; 2 ibid., 344, 434, 457 ; Col. Dig.,, Book I., Chap. V., T.
180 ss; Book II., Chap. IV., T. 54, Comm. suh. fin; C. Colum Comara
Venkatachella v. R. Rungasawmy, 8 M. I. A., at p. 323; Bullakidass v. Gliama,
Bom. H. C. P. J. F. for 1880, p. 224; Bahaji bin Mahadji v. Krishnaji, Bom.
H. C. P. J. F. for 1878, p. 149.
(x) Ravji Janardhan v. Gungadharbhat, I. L. R. 4 Bom. 29.
iy) Guruchurn Doss v. Goluckmoney Dossee, 1 Fult. 165, a Bengal case, but
agreeing with Megha Sham v, Vithalrao, cited below, sec. 7 A; and Daolatrao's
Case, above, p. 590 note (m).
(z) Annaya v. Hoskeri Ramappa, H. C. P. J. F. for 1875, p. 227 ; Bhimasha v.
Ramchandarsha, H. C. P. J. F. for 1878, p. 286; Kharajamal v. Daim, L. R.
32 I. A. 23; S. C. I. L. R. 32 Cal. 296; Shesham v. Veera, I. L. R. 32 Mad.
284; Shamrathi v. Kishen, I. L. R. 29 All. 311. As to suits by a family,
see above, p. 568.
(a) See above, p. 573. Hart Vithal v. Jairam, I. L. R. 14 Bom. 597; Doulat
Ram V. Mehr Chand, L. R. 14 I. A. 187; Sheo v. Jaddo, L. R. 41 I. A. 216.
(6) Narayan Gop Habbu v. Pandurang Ganu, I. L. R. 5 Bom. 685, referring
to Jogendro Deb Roy Kut v. Funindro Deb Roy Kut, 14 M. I. A., at p. 376,
592 HINDU LAW. [BOOK II.
a suit and a decree against a manager individually affect only his
own share in the common estate, even though he may have con-
tracted the liability for the benefit of the family. That question, it
is thought, cannot properly be disposed of without the several
members being called before the Court (c), and the sale of the
" right, title, and interest " of the manager gives to the purchaser
no more than is expressly sold (d). Thus it was held that a decree
obtained against the manager alone (not the father) and a sale
under such a decree, did not bind the property beyond the mana-
ger's own share (e), and that the brother of the manager ousted by
the purchaser in execution might recover possession of the whole (/)
leaving the purchaser to work out his right by a suit for parti-.
tion (g). This is exactly the reverse of the rule in the case of a
sale in execution of a decree against the father on an ordinary
debt, as recently expounded at Madras (h).
Subject to the foregoing observations the presumption in favour
of the good faith of transactions entered into by a father (z) or uncle
as manager of an ancestral estate is naturally somewhat stronger
than in the case of more distant connexions or of women not
familiar with business (h). But even as to the father the principle
and Mayaram Sevaram v. Jayavantrao Pandurang , Sp. Ap, No. 435 of 1873,
I. L. E. 5 Bom. 687.
(c) Mahahalaya v. Timaya, 12 Bom. H. C. K. 139; Idem his H. C. P. J. for
1879, p. 417 ; Nhanu Lukshman Golam v. Ramchandra Vinayak, H. C. P. J. F.
for 1882, p. 277; Baji Shamraj Joslii v. Dev. bin Balaji, H. C. P. J. F. for
1879, p. 238.
(d) Comp. the case of a widow's estate only passing under a decree against
her for arrears as a charge, Baijun Doohey v. Brij Bhookun Lai, L. K. 2 I. A.
275; Laxman Nilkant v. Vinyak Kesliav, I. L. B. 40 Bom. 329.
ie) This is quoted and followed in Kisansing v. Moreshwar, Bom. H.
C. P. J. 1882, p. 396, referring to Deen DyaVs Case as conclusive that the son's
interest does not pass by a sale in execution of the father's. Lakshman v.
Kashinath, I. L. E. 11 Bom. 700.
(/) In Gopalasami v. Chokalingam, I. L. E. 4 Mad. 320, possession under a
sale in execution against a father was held to throw on his son the burden of
proving that the original debt was illegal or immoral. Compare GurusamVs
Case quoted above.
{g) Maruti Narayan v. Lilachand, I. L. E. 6 Bom. 564.
(h) Velliyamal v. Katha, L. E. 5 Mad., at p. 68, explaining Ponappa Pillai
V. Pappuvayangar, I. L. E. 4 Mad. 1.
(i) See Bahaji v. Krishnaji, I. L. E. 2 Bom. 667.
(fe) As to a father, see Bahaji Sakoji v. Ramshet Pandushet et al., 2 Bom. H.
C. E. 23. As to an uncle see Bhaoo Appajee v. Khundojee, 9 Harr. 104, and
generally C. Colum Comara Vencatachella v. R. Rungaswamy, 8 M. I. A., at
p. 323; Tandaraya Mudali v. Valli Ammal, 1 M. H. C. E. 398; Gour Chunder
FAMILY IN UNION.
laid down in Sura] Bunsec Kooer's Case has always prevailed in
Bombay as elsewhere. The family under the father's headship is
like any other united family except that the father is manager {I)
by nature, unless disqualified or deposed (m), and a manager whose
transactions may be strongly presumed to be intended for the good
of the family (n). If, however, they are not for its good but plainly
Biswas V. Greesh Chunder Biswas et al., 7 C. W. R. 121 C. R. ; Musst^
Nouruthum Kooer v. Baboo Gouree Dutt Singh et al., 6 C. W. R. 193; Heera-
chand v. Mahashunker, S. A. No. 3918, 6th July, 1868; 2 Str. H. L. 331, 348;
Shidramapa Balapa v. ShesJio Janardhan, S. A. No. 178 of 1874, Bom. H. C
P. J. F. for 1876, p. 61.
The manager is not to be called to a rigorous account, nor, on the other
hand, to claim credit as against the family for disbursements in excess of his
proper share on account of it, Davlatrao Ramrao v. Narayanrao Khanderao^
R. A. No. 51 of 1876; Bom. H. C. P. J. F. for 1877, p. 175; see for Bengal
Ahhaychandra Roy v. Pyari Mohan Juho et al., 5 B. L. R. 347. An alienation
by a Karta is binding on any member who consciously stands by and sees
the money applied without refusing to participate, Madhoo Dyal Singh v.
Golpar Singh et al., 9 C. W. R. 511; Ramkeshore Narain Singh v. Anand
Misser, 21 ibid. 12 C. R., and the case in Hay's Rept. 567; Bhimasha bin
Dongresha et al. v. Krishnabai, Bom. H. C. P. J. F. for 1878, p. 286. The
ruling in Ramlal v. Lakhmichand Muniram et al., 1 Bom. H. C. R. li, Ixxi.
App., that the manager of a joint estate, the capital of a firm, has authority to
deal with it for the purposes of the business, is cited and approved in Johurra
Bibee v. Sreegopal Misser, I. L. R. 1 Cal., p. 476; Samalbhai Nathubhai v.
Someshvar Mangal and Hurkisan, I. L. R. 5 Bom., p. 38; see Col. Dig., Book
II., Chap. IV., T. 54, Comm. In Narain v. Sarnam, L. R. 44 I. A. 163, it has
been held that a mortgage of the joint property by a Karta is void unless it
was for family necessity. As to when a suit will lie against the Karta or
manager, see Soorjeemoney v. Denobandhoo, 6 M. I. A. 540; Krishna v.
Subbanna, I. L. R. 7 Mad. 564.
{I) Above, pp. 564, 568. In Steele, L. C. 238, it is said that the father's
gift of immovable ancestral property is invalid unless attested by the heirs.
The Hindu law generally requires the attestation of the members of the
family enjoying an unobstructed right of inheritance {i.e. a quiescent co-
ownership) to a danpatra or deed of gift, to which, according to that law, a
conveyance for value is assimilated. See Vyav. May, Chap. II., sec. I., para. 5 ;
Col. Dig., Book I., T. 19; above, p. 191, note (n). This attestation, as the
document is ordinarily read out, implies assent to its contents, as formerly in
England, see Col. Dig., Book II., Chap. IV., T. 33 Comm. ; Pandurang v. Naru,
Sel. Rep. 186; Book I., sec. 9, p. 218 above, and the Sastri's opinion in Doe v.
Ganpat, Perry's 0. Cases, at p. 137.
In Nagalutchmee Ammal v. Gopoo Nadaraja Chatty, 6 M. I. A., at p. 341,
the Judicial Committee observe, " These witnesses, one and all, depose to the
fact of the signature of these papers, to their being written from the dictation
of the testator." &c.
(m) Vyav. May., Chap. IV., sec. IV., para. 7.
(n) See above, p. 592, notes (i) and (k).
H.L. 38
594 HINDU LAW. [BOOK II.
detrimental there is perhaps no case prior to Narayanacharya v.
Narso Krishna (o) which makes the family estate liable because
they are not otherwise immoral (p). Any transaction is forbidden
which tends to reduce the family to want (q). This has not been
regarded by the usage of the Hindus in Bombay as a merely pious
precept, but as a law properly so called (r), and has been relied on
by the Courts against improper alienations and incumbrances of
the patrimony (s).
Applications for an interdiction (t) against a father could never
be common amongst the Hindus; but when a father was getting
rid of the patrimony the Sastri said that an interdiction might be
obtained and the transaction rescinded at the suit of the son or of
the united brother (v). When a Joshi proposed to give away his
vatan he was restricted to a small portion of it (w). A father could
for incapacity be superseded or set aside as manager in favour of
his son (x).
It appears, therefore, that the father as manager stands substan-
tially in the same position as any other manager. The care of the
family, the preservation of the common estate, and the payment
of debts, are more especially incumbent on him {y). In
Nagalutchmee Ammal v. Gopoo Nadaraja Chetty (^z) the Pandits
thought a will would be invalidated by a permission to adopt acted
on. They say: " The will . . . is valid . . . the testator having
(o) I. L. E. 1 Bom. 262.
(p) See Naraijen v. Balkrishna, I. L. K. 4 Bom. 529, and comp. Sham
Narain Singh v. Rughoobindial , I. L. E. 3 Cal. 508.
{q} See above, pp. 204, 205; Col. Dig., Book II., Chap. IV., T. 11, 18, 19;
Vyasa, cited Daya Bhaga, Chap. I. para. 45; Mit., Chap. I., sec. 1, para. 27;
Id. Coram, on Yajn. II. 47—50 in Appendix; 2 Str. H. L. 5, 12, 16.
(r) See Bai Gunga v. Dhurmdas, Bell, E. 16; 2 Str. H. L. 449.
(s) In Narsinha Hegde v. Timma, Bom. H. C. P. J. 1882, p. 394, the
District Judge was directed to inquire whether the creditor had bond fide
supposed that the debt was incurred for the benefit of the family by the father.
(t) Mit., Chap. I., sec. VI., para. 9.
(v) Q. 1935, M.S.
(w) Q. 711, MS. Comp. 2 Str. H. L. 16, 12.
(x) See Steele, L. C. 178, 216; Vyav. May., Chap. IV., sec. IV., para. 7.
(y) Ramchandra D. Naik v. Dada M. Naik, 1 Bom. H. C. E. 86 App. ; see
Yajn., Book II., para. 46; Narada, Book II., Chap. III., paras. 11, 12, 13;
Manu IV., 267; Vyav. May., Chap. V., sec. 4, para 11; Steele, L. C. 68.
See H. H. Wilson, quoted below. Book II., Vyav., Chap. I., sec. 1, Q. 4,
Eemark.
(z) 6 M. I. A., at p. 320. Comp. the case in note (r), p. 594 above.
FAMILY IN UNION. 696
thereby bequeathed a portion of his estate for the maintenance of
his wife and other members of his family whom he was bound
to protect, and directed the remainder to be appropriated to
charitable purposes in the event of his wife, who was then preg-
nant, not being delivered of a son." The conditions give effect to
the Hindu law against disinheriting a son, and in favour of the
maintenance of dependants as a duty not to be evaded by means
of a disposal of the estate by its owner. In the case of an ancestral
estate it does not seem that the father can really be deemed owner
in a sense that does not apply equally to any of his sons. No
member of an undivided family " has a certain definite share " (a),
much less has one co-owner a right as such to dispose of the
whole {h). The father's natural relation to his children entitles
him at the same time to more than ordinary confidence. Hence it
is that in such cases as Babciji v. Ramshet (c) the sons seeking to
upset their father's alienation of family property were called on to
prove that the transaction had been one not binding on , their
shares (d). The authority to alienate was not thought wider in
his case than in that of another manager ; only his good intentions
were rather more strongly presumed.
The doctrine of the Bombay Court appears to be warranted, not
only by the case of Svraj Bnnsee Kooer, but by what is said in
Bahoo Kameswar Pershad v. Run Bahadur Singh (e). " Their
Lordships have applied those principles ... to transactions in
which a father in derogation of the rights of his son under the
Mitakshara has made an alienation of ancestral family estate. The
principle ... is that . . . the lender is bound to inquire into
the necessities for the loan and to satisfy himself as well as he
can . . . that the manager is acting in the particular instance for
the benefit of the estate ... a bond fide creditor should [not]
suffer when he has acted honestly and with due caution but is
himself deceived." This ought apparently to be conclusive as to
(a) Appovier v. Rama Suhhayana, 11 M. I. A., at p. 89; Rangama v.
Atchama, 4 M. I. A. 103; Girdhari Lai v. Kantoo Lall, L. E. 1 I. A., at
p. 329.
(h) Mit., Chap. I., sec. 1, para. 24; Vyav. May., Chap. IV., sec. 1,
paras. 3, 5; sec. 4, para. 4.
(c) 2 Bom. H. C. R. 23. There is in many such cases a suspicion of fraud,
as in the one referred to in Hanooman Persad's Case.
(d) It may be noted that the Mitakshara distinctly imposes on a father's
creditor the burden of making his case good against sons denying his claim ;
€omm. on Yajn. II. 50. (e) L. R. 8 I. A., at p. 11.
596 HINDU LAW. [book II.
the nature of the father's authority when deahng or a.fEecting to
deal with the joint property of himself and his sons. It would be
so but for the difficulties created by other cases which, in order to
enforce the obligation resting on sons after their father's death,
have apparently assigned to the father a capacity of himself dis-
counting that liability during his life by aliening the patrimony
in ways not consistent with his duty as manager. In the case of
Kastur Bhavani v. Appa (/), sons, including two minors, sued to
recover ancestral lands sold by their father to pay a debt. The
debt had been originally incurred by the grandfather. It was
alleged to have been contracted or increased for immoral purposes,
but this was not proved, though it was proved that the father was
addicted to drinking. The District Court held the sale invalid
except as to the father's share, as not having been proved to be
necessary, but in the High Court it was re-established on the
ground that the sons had not proved, as they were on their plaint
bound to prove, that it was made for an immoral purpose, they
having relied on that express ground. A misapplication of a trivial
sum would, it was suggested, probably make no difference (g).
The cases of Girdhan Lai v. Kantoo Lai {h) and of Mnddun Gopal
Lai V. Mussamut Gowrauhutty (i) are referred to, but only on the
point just noticed. As a mere member of a united family the
father has been held answerable in his own share on a partition for
his personal debts (k) in the same way as any other coparcener.
This is shown by the cases already referred to (1). A suit brought
against a father alone will not in ordinary cases bind his sons as to
the ancestral property. They must be made defendants if they
(/) I. L. E. 5 Bom. 621.
(g) Before the birth or the adoption of a son an owner may deal with the
property free from question by a son subsequently born or adopted, loc. cit.
and Ramhhat v. Lakshman Ghintaman, I. L. K. 5 Bom. 630.
(h) L. E. 1 I. A. 321.
(t) 15 Beng. L. E. 264.
(k) See Narayanrao Damodar v. Balkrishna, I. L. E. 4 Bom. 529, 534.
(Z) In the N.W, Provinces the same doctrine seems sometimes to have
prevailed, see Nanhak JotVs Case, above, p. 576. The Pandits at 14 of the
N. W. P. S. A. Eeport for 1857, said that two sons could recover their shares
of ancestral property sold in execution of a decree against the father unless
the debt was incurred for the benefit of the family. In Ramchandra and
Lakshman v. Raoji Sakharam, Bom. H. C. P. J. for 1882, p. 381, the issue
sent down for trial was " Was the debt secured by the mortgage of plaintiff's
father . . . contracted for a legal and moral purpose?"
FAMILY IN UNION. 597
are to be affected by the decree (m). The principle extends to the-
case of a son born, and even to one adopted, pendente lite (n). In
this respect, therefore, the father stands on the same footing as an
ordinary manager. A suit against him may affect the whole
family in its estate, but this is exceptional, and a sale under a
decree in such a suit could not in general extend to more than the
father's own share on a partition.
Sons, however, must discharge their father's debt aft>er his
death (o). Along with this there are precepts laying the duty on
him who takes the estate and exonerating the son kept out of it (p).
It is a reasonable inference that the estate taken by the sons is,
as such, answerable in their hands (q) for the debts for which they
are morally liable (r). The liability is independent of assets where
there are none (s), and this affords an indication of the kind of
debts that can properly be regarded as charges on the estate (t).
Those only which were excusably incurred are binding (v). As the
result is substantially the samo it would seem that the father may
make such debts a direct charge on the estate after his own
death (w). But for all instruments executed by the father as by
others the general rules hold good which refuse them validity if
made under disturbing influences which deprive them of the char-
acter of free and intelligent expressions of volition (x). None of
the texts, however, which establish this liability, nor any of the
(w) See above, p. 167.
(n) See Ramhhat v. Lakshman Chintaman Mayalay, I. L. E. 5 Bom. 630,
635, where the owner's uncontrolled power of gift before, and his limited
power after, the birth of a son are clearly defined by Sir M. Westropp, C.J.
(o) Vyav. May., Chap. V., sec. 4, para. 12 ss.
(p) Vyav. May., Chap. V., sec. 4, para. 16; Col. Dig., Book I., Chap. V.,
T. 171.
(q) See above, pp. 73, 75.
(r) Vyav. May., Chap. V., sec. 4, para. 13.
(s) Ibid., Yajn., Book II., para. 51; Narada, Book II., Chap. III., para. 6,
quoted Col. Dig., Book I., Chap. V., T. 188; Steele, L. C. 312; 2 Str. H. L.
274, 277; Lallu v. Motiram, I. L. K. 13 Bom. 65.
(t) •' The obligation ... has respect to the nature of the debt, not . . . of
the estate," Judicial Committee in Hanooman's Case, 6 M. I. A. 421.
(v) Manu VIII. 166, says : " if the money was expended for the use of his
family." See Steele, L. C. 217.
(to) This is the effect of Hanooman Parsad's Case (see above, p. 165), if
it is generalised beyond the case of an ancestral debt made a charge by the
father, which was all the Judicial Committee dealt with.
(x) Vyav. May., Chap. II., sec. 1, p. 10; Narada, Part I., Chap. III.,
para. 43; Part II., Chap. IV., paras. 8, 9; 2 Str. H. L. 14.
598 HINDU LAW. [BOOK II.
Commentators on them, say that a son's liability for his father's
debts arises during the father's life {y). Nor has any response of a
Sastri been found in favour of such a liability. There are many
texts which imply the contrary. Vishnu says the sons or grand-
sons must pay when the debtor is dead or has been absent twenty
years, that is when he may be presumed to be dead, not before (z).
Manu says simply when the father is dead (a). Brihaspati (b) says
the sons must pay even in the father's life but only in cases in
which he is incapable of acquiring property or retaining it. The
exception here is conclusive as to the rule, at least as it was under-
stood by the school that produced this Smriti, which is sacred
everywhere. The same observation occurs as to Katyayana's
text (c) quoted in N arayanadiaryci' s Case (d). So too as to Narada 's
text on the subject (e). The whole series quoted by Jagannatha
imply a liability only after the father's natural or civil death or its
equivalent, and so they have invariably been understood by native
lawyers reading them with the context. The case may be stated
even more strongly. There is no text imposing on sons a liability
during their father's life for debts incurred even for the benefit of
the family (/), except in cases in which the father is not capable
of managing the estate and affairs of the family, and the sons
are (g). It is impossible that of the numerous texts treating of
debts contracted for the family and of the sons' liability as survi-
vors of their father all should have omitted to mention their
liability during the father's life had the liability been recognized.
But the father is regarded as alone responsible, and alone having
administrative control as the head of an undivided family (h).
Debts even for its benefit cannot, it is said, be contracted against
(y) See above, p. 164; and below, Book II., Vyav., Chap. I., sec. 1, Q. 5.
(z) 2 Str. H. L. 237; Vishnu, Transl., p. 46; Col. Dig., Book I., Chap. V.,
T. 168; 1 Str. H. L. 188; 2 ihid. 237, 316; Steele, L. C. 34
(a) VIII. 166.
(6) Col. Dig., Book I., Chap. V., T. 178.
(c) T. 177.
(d) I. L. E. 1 Bom., at p. 266.
(e) Part I., Chap. III., paras. 14, 15.
(/) See the answer to Chap. I., sec. 1, Q. 5, below.
(g) See Yajn., Book II., para. 45; Col. Dig., Book I., Chap. V., T. 167, 168,
177, 178; 2 Str. H. L. 81, 277, 326.
(h) Comp. Ellis in 2 Str. H. L. 321, 326, and above, p. 270. On his death
or incapacity the eldest son succeeds unless disqualified, as in ancient times
he took the patria potestas. See Manu IX., 106 ss., 126.
FAMILY IN UNION. 599
his prohibition (i) — a doubtful proposition — but one which shows
how his position was understood by a learned native lawyer. The
Vyav. Mayukha, the chief local authority in Bombay (k) dwells
elaborately on the debtor's obligations, but says nothing about any
obligation of the sons except on their father's death or prolonged
absence (1). The Mitakshara itself, in commenting on the texts of
Yajnavalkya in the untranslated portion on "Vyavahara,"
construes them as imposing a duty only after the father's death,
his absence for twenty years, or on his imbecility. It then trans-
fers the liability to the new head of the household if there is
one (m), or to the sons jointly if there is not.
It seems, therefore, that the decision in Jamiyatram's Case,
giving to the father in a united family virtually unlimited power
over the whole ancestral estate, on condition only that his
behaviour is not scandalous, cannot be rested on the Hindu law as
the people have received it in Bombay (n). The acknowledged
authorities do not support it, and the usa^e of the people has con-
formed to these authorities. A reference to Steele's Law of Caste
establishes this (o), and the MS. collection of Caste Customs made
by Mr. Borradaile, while it shows that the father's debts were
regarded as a burden on the estate in partition, does not assert any
liability of the sons during his life. It appears indeed that in the
great majority of castes the father's debt and the family debt are
not distinguished. Partition against the father's will during his
life is not allowed (p). He is manager while capable, and all his
debts are prima facie incumbent on him alone (q), passing to his
(i) Col. Dig., Book I., Chap. V., T. 194. The Vyav. May., Chap. V., sec. 4,
para. 20, and the Mit., chapter on Vyavahara, prescribe the duty of payment
without any quaHfication. See, too. Col. Oblig., p. 24; Vishnu, Tr. pp. 46,46.
(k) Sakharam v. Sitabai, I. L. K. 3 Bom., at p. 367.
(I) Vyav. Mayukha, Chap. V., sec. 4.
(m) Comp. 2 Str. H. L. 252, 326.
(n) Comp. Lallubhai v. Mankuvarhhai, I. L. E. 2 Bom., at pp. 418, 448; as
to the force of this reception S. C. L. E. 7 I. A. 212, 237.
(o) i.e., by treating the liability for debts as one arising on the father's
death in all places where the point occurs. Alienations without the assent of
heirs are pronounced invalid, ibid. 68, 238; or at most good only for the
grantor's share and during his life, ibid. 237.
(p) See below.
(q) The absence of rules for a partition enforced by the sons in the father's
life is an evidence of the comparatively late introduction of this doctrine.
The same inference arises from the want of a rule for the partition of debts
600 HINDU LAW. [BOOK II.
sons only on his death subject to exceptions on the usual
grounds (r).
The decision in JamiyatraTn's Case conforms to that in
Girdharilal v. Kantoolal, but the question remains of whether the
latter expresses the Hindu law of Bombay. The father's share
may be made separately available, as in Bengal it could not when
Girdharilal' s Case was decided. The son's right is a co-ownership
entitled to protection against a careless or designing creditor of the
father; and there is no hardship in controlling the father's right
to sell what he did not buy. When it is said that Hanooman
Pershad's Case " is an authority to show that ancestral property
which descends to a father under the Mitakshara law is not
exempted from liability to pay his debts because a son is bom to
him," the remark occurs that their Lordships in the earlier case
did not decide as to debts in general, only as to an ancestral debt
made a charge by the father. Secondly it may with deference be
pointed out that the Mitakshaj-a itself in dealing expressly with
the subject in a chapter which was not before their Lordships on
either occasion, treats of the payment of debts in such a way as to
make it clear that no liability of a son for his living father's debt
is recognized. The estate may be answerable, and the son's share
in it, but simply through the father's authority as manager. This
enables him to create burdens for purposes necessary and bene-
ficial to the family, but not for other purposes though these should
not be " immoral " (s). The point in Hanooman Pershad's Case
was that as an ancestral debt descended to the father he was
prima facie bound to pay it (t), and hence justified in applying the
ancestral estate to that purpose (v), and therefore the manager for
in a partition between the father and sons, which in the case of a partition
amongst the sons only is always provided for. It seems that the three stages
of development were (1) a moral claim of the sons and a still stronger moral
duty of the father to preserve the patrimony; (2) an advance of the son's right
to co-ownership, the father being still ex-ofi&cio manager; (3) the son's acquisi-
tion in virtue of co-ownership of a right to partition of the patrimony, comp.
p. 206 above, and the Daya Bhaga, Chap. II., Stokes's H. L. B., pp. 200 ss.,
and the Dayakrama Sangraha, Chap. VI., ibid., p. 511.
(r) The exceptions are not explicitly stated, no question having been put on
that point. See Steele, L. C. 40, 178, 217.
(s) See above, p. 165; Steele, L. C, pp. 40, 265.
(t) Amongst the Marathas this obligation extends to all debts incurred
during the son's infancy, and to those incurred after his majority for Samsar,
or the discharge of moral and ceremonial duties. Steele, L. C. 40.
(v) See Katyayana in Vyav. May., Chap. V., sec. 4, para. 14.
FAMILY IN UNION. 601
his infant son might properly recognize the charge as binding on
him. The conversion of such an obHgation inherited by a son into
a Habihty to have all his property aliened by his father while
they are both alive («') in order to furnish means for the father's
needless expenditure is a process which, so far as can be dis-
covered, the " usage of the country " or the " laws and usages of
the Gentoos," have not performed in Bombay.
The English connotation of the word " heir," as denoting one
succeeding his ancestor but only succeeding, not participating with
an equal right, is misleading in the case of a son's relation to his
father as regards the Hindu " heir " so called (x). The birth of a
(tc) The duty arises from " sonship " and must be discharged out of a son's
own property. It rests, therefore, on a separated son. If, then, the '* pious
duty " towards a father deceased is convertible into a legal obligation to a
father alive, with a corresponding right in the father, it would seem that the
separated son's property equally with that of the son unseparated, may be
disposed of by a father or sold in execution of a decree against him for a debt
not " immoral."
(x) See above, pp. 62, 232. This participation is not in theory limited to
the ancestral estate : it extends to all immovable property, with some special
exceptions.
A father cannot, according to the doctrine of the Mitakshara, Chap. I.,
sec. 1, para. 27, dispose of his immovable property, even though acquired by
himself, without the assent of his sons, except in a case of urgent need,
Steele, L. C, pp. 39, 54. The reason given is the duty of providing for the
family, and this must limit the administrative independence assigned to him
over his acquisitions by Chap. V., sec. 10, supposing the latter extends to
immovable property. Colebrooke seems to recognise this at 2 Str. H. L. 436.
At p. 439 he states the same doctrine as undoubtedly that of the Smriti
Chandrika, and at p. 441 as that of the Madhaviya. At p. 444 Sutherland
says no part of the Daya Bhaga (of Jimuta Vahana) is so unsatisfactory as
that which maintains the right to dispose of self -acquired immovables, and
at p. 445 that according to the Mithila and the Benares (Mitakshara) Schools
a man. is free to give away only his movable property. The Sastri of the
Recorder's Court at Bombay says, p. 449, that alienation of immovable pro-
perty is forbidden, and of movable property also, except as to the surplus
beyond the needs of the family. Such, he says, is the usage of the country,
and this is confirmed by Steele, L. C, pp. 68, 211, though some castes main-
tain the power of the acquirer over his own acquisitions, ibid. 237; and the
authority of the manager is by some castes extended beyond the warrant of
the sacred writings, ibid., 53, 54, 209.
Though the power of a Hindu to deal as he pleases with his acquired pro-
perty cannot now be questioned, Steele, L. C. 54, 211; above, pp. 193, 206,
209; it does not seem reconcilable with the principles of the Hindu law, as
thus stated by high authorities, that a father should be at liberty to cast off
his obligations to his family, or that he should be able not only to burden
602 HINDU LAW. [BOOK II.
son necessarily causes a diminution of his father's estate, by the
introduction of an owner in common with the father (y), and
thenceforward the father's acts are those of a manager. His death
throws a new burden on the son, as the son's birth partly divested
the father's estate, but the death equally with the birth is a
necessary condition of the jural change (z).
It may be added that nowhere amongst the provisions of the
Hindu law for enforcing payment of debts (a) is such a process as
the attachment and sale of the lands of a family mentioned.
Jagannatha's discussion of the subject (h) makes it plain that the
connexion between an owner and his land was conceived by the
Hindu lawyers as by the earlier Komans (c) as separable only by
his own volition, however that might be influenced. Attachment
and sale in execution therefore are entirely the creatures of British
legislation. They belong wholly to the province of procedure ;
and the title sold cannot, it would seem, be enlarged beyond that
vested by the substantive law in the party sued, and whose " right.
his sons with his debts after his death, but also to alienate even the ancestral
estate in their despite during his life. The duty of the son to pay his father's
debts is regarded by the Hindu law as a " pious obligation," and as such
limited by the equally pious obligation of maintaining the family where the
two duties come into competition, see above, p. 207; below. Appendix; and
Dayakrama Sangraha, Chap. VI., para. 5; Stokes's H. L, B., p. 510; Vyav.
May., Chap. IX., para. 5, ibid., p. 134; though the son must make any merely
personal sacrifice.
iy) See Rambhat v. Lakshman Chintaman Mayalay, I. L. E. 5 Bom., at
p. 635, per Sir M. Westropp, C.J., and the authorities there cited.
(z) See per White, J., in Bhecknarain Singh v. Januk Singh, I. L. K. 2 Cal.
438, 443. The son, if a minor at his father's death, becomes responsible only
on attaining his majority, according to the Mit. and Vyav. May., loc. cit.
See also 2 Str. H. L. 76, 80, 279. This indicates a personal obligation to be
satisfied no doubt out of the estate if there is one, but not in the proper sense
a charge on it as in the case of a specific lien legally created.
(a) For the process employed amongst the Marathas, see Vyav. May,,
Chap. IV., sec. 4, para. 7; Wilson's Glossary Asedha; Steele, L. C, pp. 74,
267. For the sacredness of the debtor's obligation for a debt incurred to cele-
brate one of the necessary ceremonies, ibid., p. 60. By the ancient common
law of England execution could not be had for debt or damages against the
land or the person of the debtor, only against his chattels and corn. Coke,
2 Inst. 394; Co. Eep., Part III., lib.; Vin. Abr. Execution (M).
(6) Col. Dig., Book II., Chap. II., T. 24, Comm. ad. fin. ; T. 27, 28, Comm.
(c) See Mommsen, Hist. Rom., vol. I., pp. 169, 311; Maynz, Dr. Rom.,
sees. 243, 380. How very gradually the English law admitted the charging
of the estate with debts may be seen in Blackstone's Comm., Book II.,
Chap. XIX.
FAMILY IN UNION. 603
title, and interest " as a Hindu father of a family is put up to
auction to satisfy his creditor {d).
Amongst the male members of an ordinary Hindu undivided
family, a suit by one member against another for maintenance is
not sustainable. The right arises only (in such a case) through
disability to inherit (e), but it lies by a son against his father
holding impartible property (/). In such property is included a
pension allowed as commutation for a resumed Saranjam (g). The
father's maintenance is the first consideration. That being once
provided for, the indigent sons have, according to the Hindu Law,
a claim on the surplus, so far as it extends, for their mainten-
ance (h). In answer to Q. 1884 MS., the Dharwar Sastri (6th
October, 1854) says, " It is not right for a son, however young,
to claim support from his father. But a father should afford a
maintenance to a child, and, if there be hereditary property, to the
extent of the son's share." The Sastri seems to have relied on
Manu, as cited in Col. Dig., Book V., T. 379, Comm., and
2 Macn. H. L. 114, to the effect that aged parents, a wife, and an
infant son must under all circumstances be maintained; the last
words of which being ambiguous (Col., Note loc. cit.) are differ-
ently taken in the Mitakshara («)• In the case of Ramchandva
Dada Naik v. Dada Mahadev Naik (k), Sausse, J., after holding
that a partition of the hereditary estate could not be enforced by a
banker's son against his father, sajs: " I do not think that the
(d) The great practical importance of this subject may be pleaded as a
justification for dealing with it at such length. The authority said to be
vested in the father to waste the patrimony so long as he avoids spending it
on the acts included in " immorality," makes the position of every Hindu son
in a state of union with his father unsafe. Suraj Bunsee Kooer's Case,
L. R. 6 1. A., at p. 100, says the son may claim a partition at will. Thus a
motive and a means are held forth which tend at least to a complete break-up
of the Hindu family system, and may lead to very serious consequences unless
the whole subject is comprehensively dealt with by the Legislature. Khara-
jamal v. Daim, L. R. 32 I. A. 23; S. C. I. L. R. 32 Cal. 296.
(e) Himmatsing v. Ganputsing, 12 Bom. H. C. R. 96; AgursaHgji v. Gagji
Khodahhai, ibid., 96 Note (a).
(/) Himmatsing v. Ganputsing , ibid. 94.
(g) Ramchandra Sakharam v. Sakharam Gopal, I. L. R. 2 Bom. 346.
(h) See Col. Dig., Book V., T. 23, Comm. ; 2 Str. H. L. 321; Steele, L. C.
40; Mit., on Yajn. II., 176, translated in Appendix.
(i) See Book I., Vyav., Chap. II., sec. 1, Q. 2; 1 Str. H. L. 67; Smriti
Chandrika, Chap. II., sec. 1, paras. 31, 32.
(k) 1 Bom. H. C. R., App., at p. Ixxxiv.
604 HINDU LAW, [BOOK II.
abstract question of the right of a son to enforce maintenance
(in a Hindu sense) from his father arises here. If I thought it
did I would overrule the demurrer, for there is no clearer duty
imposed upon a Hindu father than that of giving ' food,
raiment, and shelter ' not only to a son, but to any member of
his family " (I).
§ 3a. a family living in union may be either (a) undivided
(avibhakta) or (b) reunited (samsrishfa).
(a.) An undivided family consists —
1. Of an ancestor and his descendants (m).
2. The descendants of a common ancestor.
The descendants must be legitimate descendants of the body, or
else legally adopted sons or their descendants (n), except in the
case of Sudras, where illegitimate sons have a capacity to form a
united family inter se, probably also with their legitimate half
brothers (o), and at any rate have rights analogous to those of
legitimate sons (p). The right of descendants extends only to the
third degree from an ancestor, living undivided and being the
head of a family or of a particular branch (q). Thus :
(1). If A, AS A\ A3, and A* live together, and A^ A^, and A'
(1) See Suraj Bunsee Kooer's Case, supra, and the remark in Lakshman
Dada Naik v. Ramchandra Dada Naik, L. E. 7 I. A., at p. 193.
(m) Two widows, it has been said, succeed jointly to the estate of their
deceased husband. But they do not form an undivided family in the proper
sense, and they are perhaps regarded by the Hindu Law rather as holding
several, though undiscriminated, shares in the property. See above Book I.,
Vyav., Chap. II., sec. 6 A, Q. 6, p. 374; 2 Str. H. L. 90.
(n) See 2 Str. H. L. 312.
(o) See p. 362—4, Q. 10 and 12, Eemarks.
(p) As to the paunarhhava, or son by a twice-married woman, see Sutherland's
note, 2 Str. H. L. 208. The Paunarbhu is there classed in three divisions,
differing, in description, from those given by Narada, Pt. II., Chap. XII.,
paras. 56 ss. As to the svairini or disloyal wife, see Narada, loc. cit.,
paras. 50 ss. The heritable right and consequent right to shares in a partition
of sons of paunarbhus depends, Sutherland says, on local custom. See above
Book I., Vyav., Chap. II., sec. 3, p. 367.
(q) See 2 Str. H. L. 327; Vyav. May., Chap. IV., sec. 4, paras. 21, 22;
Manu IX. 185 ; Col. Dig., Book V., T. 81, 394, 396, Comm. Visvesvara, in the
Subodhini on Mit., Chap. I., sec. 1, p. 3 seems to admit that the doctrine of
representation may be carried down even beyond the great-grandson, but the
latter is generally admitted only after the near relatives, specifically enumerated
as heirs.
FAMILY IN UNION. 605
predecease A, then A* will have no immediate claim to a share
of A's property, see No. 1 in (?").
(2). If A», with his four descendants, A^ and A^ with their
one and three descendants respectively, live together, and A^'s
first, second and third descendants predecease A^, and if A* die
afterwards, then A** will have no claim to a share of the family
property, see No. 2 in (r).
The principle operating here is the same as that applying to
the Law of Inheritance in an undivided family (s). In the case
at 2 Macn. H. L. 150, the maternal grandfather having given pro-
perty to four brothers, the son of one of them, they having been
united, was allowed to obtain a partition from his uncle, the
survivor of the four (t).
Males only can be the subjects of the full rights of coparceners.
But women, ex. gr. wives, mothers, grandmothers, and daughters,
possess latent or inchoate rights of participation, which become
effective when separation takes place (v). If a widow has been
placed in possession of a part of the common estate in order to
provide her with subsistence, she can be ousted only through a
(r) No. 1.
A
No. 2.
i
A —
Aa Ab
1
1
Ac
— Al
1
1
1
-A2
1
-1-Aal
1
-Abl
^— Aci
— A3
-^-Aa2
Ac2
--A4
IabS
-JLacs
-J- Aa4
is) See Book I., p. 70.
(t) This case might perhaps be more properly referred to the principle stated
below, sec. 5 A, that a gift to united brethren without discrimination constitutes
joint property ; but it illustrates the right of the co-members to enforce parti-
tion, even of recent acquisitions, ranking as joint estate. Had the gift been
made in separate shares, the son of one donee would have had to claim by
inheritance, not by partition.
(o) " The mother's right to a specific allotment arising only when a partition
is made," Col. at 2 Str. H. L. 290. See Ramappa Naiken v. Sithammal,
I. L. E. 2 Mad., at p. 186 ; Sibhosoondery Dahia v. Bussoomutty Dahia, I. L. K.
7 Cal. 191] Narhadahai v. Mahadeo Narayan, I. L. E. 6 Bom. 99 (stepmother).
According to the usage of some of the lower castes in Gujerath the mother must
take part in a partition by her sons : it cannot proceed without her co-operation
or at least her consent. Many instances of this occur in Borradaile's Collec-
tion. See below "Eights and Duties Arising on Partition."
606 HINDU LAW. [book II.
suit for a general partition (w), in which she is entitled to the
allotment of a son's share (x).
The principle, limiting the participation of descendants from a
common ancestor who live in union, is most explicitly stated in
the Viramitrodaya, f. 177, p. 1, 1. 6 sqq. {y) :
Katyayana : — " Should one's own [brother] die before partition, his share
shall be allotted to his son, provided he had received no livelihood from his
grandfather. But that [grandson] shall receive his father's share from his
uncle or from his [uncle's] son; but an equal share shall be allotted to each
of the brothers according to law. Or his [the grandson's] son shall receive the
share [in case his father be predeceased] , beyond him [succession] stops."
One's own (i.e.) brother. His son (i.e.) the brother's son. A livelihood
(i.e.) a share. As it is necessary to know what kind of share he shall receive,
(Katyayana) says, "His father's share." His son (i.e.) the great grandson of
the person whose estate is being divided, because the grandson has (already)
been mentioned. Afterwards (i.e.) beyond the great-grandson, shall occur a
stoppage ; (i.e.) a stoppage of the succession. The meaning is that the great-
grandson's son does not receive a share.
Hence Devala also says: — "Amongst members of a family who reside
together, being undivided or after having been divided, (on a first or) second
(partition), shares of the common property shall be given (even) to the fourth
(in descent). That is certain " (z).
(w) Anpoornahai v. Mahadevrao Balwunt, B. A. No. 13 of 1872, Bom.
H. C. P. J. F. for 1872, No. 192. See Rajbai v. Sadu, 8 Bom. H. C. E.
98 A. C. J., wherein a widow in possession was awarded maintenance before
being evicted at the suit of an heir to her deceased husband. See also
Vrandavandas v. Yamunahai, 12 Bom. H. C. K. 229, wherein a concubine
in possession was awarded maintenance under similar circumstances. See below
"Partition between Brothers," and Dayakrama-Sangraha, Chap. VII.,
paras. 7-9; Stokes's H. L. B. 614.
(x) The Smriti Chandrika, admitting that the widow has an interest in the
property, but denying to her a share of it as daya, says that, when sons make
a partition, the mother becomes entitled for her maintenance to so much only
as, with her other property, will equal a share. Devanda Bhatta, however,
admits that, according to the Mitakshara, the widow's share is heritage (daya),
though there be sons. See the Smriti Chandrika, Chap. IV., para. 8 ff. As to
daughters, ibid., para. 18 ff and Chap. IX., sec. 3, para. 11; and as to the
widow's lien on property given to her for maintenance, ibid., Chap. XI., sec. 1,
para. 44 ff. Succession of the widow and of the daughter, in the absence of
sons, is recognised by this author as inheritance. See Chap. XI., sec. 1,
paras. 15, 22; sec. 2, paras. 3, 7, 9; sec. 4, para. 19. The widow of a re-united
coparcener has an equal right with that enjoyed by her deceased husband, ibid.,
Chap. XII., para. 34.
iy) Transl. p. 72.
(z) See Col. Dig., Book V. Text 81; Manu IX. 210; Smriti Chandrika,
Chap. VIII., paras. 15, 16.
FAMILY IN UNION. 607
" The meaning is, a distribution of shares shall take place down to the fourth
(descendant) from the common ancestor."
" From the words ' residing together,' it follows that this rule holds good
even for persons who have made a partition, and afterwards live together upon
reunion or the like."
With this doctrine the Madanaratna agrees ; but the Mayukha (a)
contends, that the passages of Katyayana and Devala, quoted
above, refer to reunited coparceners only. The Mayukha 's
opinion is, however, based on a forced explanation of the term
" avibhaktavibhakta " in Devala's passage. Nilakantha takes
it as a Karmadharya compound, " those who were first undivided
and became afterwards divided." The correct way to dissolve
the compound is to take it as a " Dvandva " or copulative com-
pound. The correctness of the rule given above may be inferred
also from the fact, that the great-great-grandson in the male line
of a divided person inherits only as a Gotraja-relation, after the
wife, daughters, &c. (b).
The distinction between the rights of male coparceners and of
the female members of the family rests on this, that the right of
the former are immediate, arising on the birth of each, while
those of the latter are contingent or dependent, having their
source in the necessity for a provision for a marriage portion or
maintenance (c).
§ 3b. A Eeunited Family. — A reunited family may, accord-
ing to the Mitakshara, Chap. II., sec. 9, para. 3 (d), consist (1)
of a father and his sons, (2) of brothers, and (3) of nephews and
paternal uncles, who, having once separated, have agreed to
combine their interests again. According to the Mayukha,
Chap. IV., sec. 9, para. 1 (e), all persons, who once formed a
united family, may reunite. This difference of opinion depends
on a variance in the interpretation of a passage of Brihaspati,
quoted Mit., loc. cit., para. 3. Vijnanesvara takes it as an ex-
haustive enumeration of the persons capable of reunion, whilst
Nilakantha views it as a dikpradarsana, that is, an indication of
principle, extending to analogous cases (/).
(a) Borradaile, Chap. IV., sec. 4, paras. 22 and 23; Stokes's H. L. B. 53-54.
(b) Vyav. May., Chap. IV., sec. 4, p. 22; Borradaile 59; Stokes's H. L. B. 63.
(c) On this point, see the beginning of Book II., and below, § 7 A 1 6.
(d) Stokes's H. L. B. 452. (e) Stokes's H. L. B. 91.
(/) As to the effects of reunion see Prankishen Paul Chowdry v. Mothooramo-
hun Paul Chowdry, 10 M. I. A. 403; Rampershad Tewarry v. Sheochurn Doss
et al, ibid., 506.
608 HINDU LAW. [book II.
It has been held by the Judicial Committee that the reunion
must be made by the parties, or some of them, who once lived
in union {g). See to the same effect Jagannatha, in Col. Dig.,
Book v., T. 430.
II. Separation.
§ 4a. — Definition. — Separation is the dissolution of the state
of union or reunion, the continuance of which is based on the
will or acquiescence of the united coparceners (h).
§ 4b. — Separation, how effected. — The separation of a family
united or reunited may be effected :
1. By the will of all the members.
2. At the desire of one or more members only.
[3. By the Judgment Creditor of a member or the purchaser
at an execution sale of his interest.]
An agreement between co-parceners never to partition has
been held invalid by the Bombay High Court (i) as being con-
trary to the Hindu law, and although the Calcutta High Court
had laid down such an agreement binding upon the parties (k)
themselves as distinguished from the heirs and the purchasers
from the former, in a recent case (Z) it has doubted the validity
of such an arrangement unless it be for a sufficient consideration,
and for a limited period. An agreement at a partition that one
of the coparceners shall get one-fourth of the net income of a
certain value from the eldest brother was held not binding upon
the coparcener in question in claiming the partition of his
(g) Balahux v. Rukhmahai, L. E. 30 I. A. 130; Vishvanath v. Krishnaji
Ganesh et al, 3 Bom. H. C, E. 69 A. C. J. ; cf. Akhay v. Hart, I. L. E. 35 Cal.
721.
(h) According to the Malabar law descent is traced through females, and
the joint property of the tarwad is impartible. The interest of an individual
member endures only for his life and is not available for payment of his
personal debts or taken in inheritance by his offspring. The group of common
maternal origin take the acquisitions of such members collectively. See
Ponambilath v. Ponamhilath , I. L. E. 3 Mad. 169.
(i) Ramhuja v. Virupakshi, I. L, E. 7 Bom. 538.
(k) Ram v. Anund, 2 Hyde, 97; Anath v. Mackintosh, 8 Beng. L. E. 60;
Rajender v. Sham Chand, I. L. E. 6 Cal. 107; Krishnendra v. Dehendra,
12 Cal. W. N. 793.
(0 Srimohan v. McGregor, I. L. E. 28 Cal. 769, 786.
SEPARATION. 609
quarter share (w). Nor is such a condition of any validity in case
of a property given away or divided (n) by will.
Times of Separation. — 1. Separation by the will of all the
members, whether undivided or reunited, may take place at any
time, provided there be no pregnant widow of a deceased co-
parcener. In that case it must be deferred until the delivery of
the widow (o). It cannot be prevented by third parties, how-
ever interested they may be in the estate, e.g., by creditors or
mortgagees, since their equitable rights and remedies are not
impaired, (See below, §7 b. 1.)
2. As regards separation at the desire of one or several co-
parceners only, the head of a family, whether a father, grand-
father, or great-grandfather, may separate from his descendants
at any time (p).
A son living in union with his father, who is head of the family,
may demand a separation and a division of the ancestral property
(movable and immovable) at any time (q), both according to
(m) Suhba v. Raja, I. L. E. 25 Mad. 585.
(n) Makoondo v. Ganesh, I. L. K. 1 Cal. 104; Jeeban v. Ramnath, 23 Suth.
W. K. 297 ; Transfer of Property Act (IV.) of 1882, sees. 10 and 11.
(o) May., Chap. IV., sec. 4, para. 37, and compare para. 35; Stokes's
H. L. B. 56-7. Shivajirao v. Vasantrao, I. L. E. 33 Bom. 267.
(p) Mit., Chap. I., sec. 2, paras. 2 and 7; Stokes's H. L. B. 377-8. See also
May., Chap. IV., sec. 4, para. 8; Stokes's H. L. B. 49-50.
(g) Mit., Chap. I., sec. 5, paras. 5-8; Stokes's H. L. B. 392-3; May.,
Chap. IV., sec. 4, para. 4; Stokes's H. L. B. 48; Smriti Chandrika,
Chap. VIII., p. 20; Naglinga Mudali v. Subbiramniya Mudali et al.,
1 M. H. C. E. 77; Kali Pershad v. Ram Charan, I. L. E. 1 All. 159; Phul-
chand v. Man Singh, I. L. E. 4 All., at p. 312. The late Supreme Court held
that a son could not enforce a partition of ancestral movable property, Laksh-
man Dada Naik v. Ramachandra Dada Naik, 1 Bom. H. C. E. 76 App.,
I. L. E. 1 Bom. 563. See, however, Mit., Chap. I., sec. 5, pi. 3; Stokes's
H. L. B. 391; and Col. Dig., Book V., T. 92, whence it appears that according
to the law books the ancestral wealth (dravya) generally is subject to partition
at the will of the son, though particular parts of it, as jewels, may be excepted.
See also Col. Dig., Book V. T. 26, Comm. ; Raja Ram Ternary et al. v. Luch-
mun Pershad et al., 8 C. W. E. 15 C. E. 731 F. B. ; Laljeet Singh v. Rajcoomar
Singh, 12 B. L. E. 373; Suraj Bunsee Kooer v. Sheo Proshad Singh, L. E.
6 I. A., at J). 100, and the cases therein cited; above, p. 172, sec. 8, on the
Limitations of Property. Mr. Ellis, at 2 Str. H. L. 321, adopting the Bengal
law that the father is not bound to divide, adds that he must maintain his son.
At 2 Str. H. L. 323, Mr. Sutherland has overlooked Mit., Chap. I., sec. 5,
p. 8. (Stokes's H. L. B. 393.) Balkishen v. Ram, L. E. 30 I. A. 139.
H.L. 39
610 HINDU LAW. [BOOK II.
tho Mitakshara and the Mayukha (r) ; of the self -acquired
property, under certain conditions only (s), viz. :
a. If the father be indifferent to wealth, his wife past child-
bearing, and the daughters married (t).
h. If the father be incapacitated by bodily ailments, extreme
age, insanity, or by addiction to vice {v), or the loss of caste. The
last of these conditions would, however, now perhaps be inopera-
tive, as loss of caste, according to Act XXI. of 1850, does not
affect a man's civil rights {w). A grandson, living in union with
his grandfather, or a great-grandson with his great-grandfather,
may similarly demand a partition, provided his own father, or his
father and grandfather, be dead. Till then he cannot demand a
partition notwithstanding his right in the property, because the
intervening heir obstructs his complete title (a;), that is, inter-
venes between him and the full acquisition of it.
In Suraj Bunsi Koer v. Sheopershad (y) the Judicial Com-
mittee said then : ' ' it seems now to be settled law in the Courts
of the three Presidencies that a son can compel his father to
(r) Jugmohundas v. Nathuhhoy, I. L. R. 10 Bom. 628.
(s) 2 Str. H. L. 320. In Bengal a father in the distribution of his self-
acquired property is not subject to any restriction. In Rao Balioant Singh v.
Rani Kishori, L. E. 25 I. A. 54, the Judicial Committee have held that a father
of an undivided Hindu family subject to the Mitakshara law has full power of
disposition over his self-acquired immovable property.
(t) The doctrine, given here, is that of the Mitakshara as explained by the
Subodhini (Col, Dig., Mit., Chap. I., sec. 2, note to para. 7; Stokes's H. L. B.
378). The Viramitrodaya differs from this view by rejecting the division a,
while the Mayukha, Chap. IV., sec. 4, para. 3, Stokes's H. L. B. 48, divides a
into two sub-divisions. Narada, Part. II., Chap. XIII., si. 2 ss., gives the
following times, (1) after father's death, (2) when the father being old desires,
(3) when the mother is past child-bearing, and the sisters married, (4) when
the. father's capacity or desire has ceased.
(v) The Mitakshara says, "if he is addicted to vice." The Viramitrodaya
explains this to mean " loss of caste." But it is probable that the Mit. means
to include, besides loss of caste, the case of a notorious spendthrift and evil
liver, as " interdiction " is otherwise known to the Hindu law. See above,
pp. 192, 594; Mit., Vyav., Chap. I., sec. 5, pi. 9; Stokes's H. L. B. 393. If
a father has become incapacitated, or retired from worldly affairs, a son may
become the representative of the family, 2 Str. H. L. 326 ; Steele, L. C. 178.
(w) Tagore v. Tagore, L. R. Suppl. I., App., p. 56.
(x) Mit., Chap. I., sec. 2, paras. 1 and 7; Stokes's H. L. B. 377-8; sec. 5,
para. 3, note, ihid. 391; May., Chap. IV., sec. 4, paras. 1 — 3, ibid. 47-48; Rat
Bishen Chand v. Asmaida Koer, L. R. 11 I. A. 164, per Curiam.
(y) L. R. 6 I. A. 88, 100; S. C. I. L. R. 4 Cal. 226.
SEPARATION. 611
make a partition of ancestral immovable property." The High
Courts of Calcutta, Madras, the N.W. Provinces and Bombay
have laid down that in a family governed by the Mitakshara (and
in Bombay by the Mayukha also) a son and a grandson can com-
pel partition against a father of both movable and immovable
ancestral property (z). In the case of Apn^ji v. Ramchandra (a)
the Bombay High Court has held that in the Satara District of
the Province a son cannot compel partition as against his father's
assent living jointly with the uncle. As a general proposition
interpreting the Mitakshara this restriction upon the right of a
son to claim partition has been dissented from by the Calcutta
High Court in Ramesivar v. Lachmi (h) and the Madras High
Court in Suba Ayes v. Ganesa (c). In Pranjvidas v. Ichharam {d)
the Bombay High Court has confirmed the view it had taken
in Apiaji v. Ramchandra (a). That a male coparcener can
effect a partition by mere expression of his intention to become
separate in estate has been laid down by the Privy Council (e).
That a purchaser of a coparcener's share at an execution sale (/)
and an ordinary purchaser of a share for value from a coparcener
in Bombay and Madras (g) can enforce a partition in the right of
that member has now been fully established.
A son, a grandson, or a great-grandson may voluntarily separ-
ate without receiving a full share, at any time (h).
The law of the Mitakshara as stated should be regarded as
binding generally in Bombay as in the other provinces in which
the authority of that work prevails. But it is subject to many
(z) Laljeet v. Rajcoomar, 12 Beng. L. E. 372; Suha Aiyer v. Ganesa, I. L. E.
18 Mad. 179; Jogul Kisliore v. Shih Sahai, I. L. E. 5 All. 430; Jugmohundas
V. Mangaldas, I. L. E. 10 Bom. 529, 578.
(a) I. L. E. 16 Bom. 29, F. B.
(6) I. L. E. 31 Cal. 111.
(c) I. L. E. 18 Mad. 179.
(d) I. L. E. 39 Bom. 734.
(e) Appovier v. Rama, 11 M I. A. 75; Balkishen v. Ram, L. E. 30 I. A. 139;
Parbati v. Naunihal Singh, L. E. 36 I. A. 71 ; Kewal v. Parhhu, L. E. 44 I. A.
169.
if) Deendyal v. Jugdeep, L. E. 4 I. A. 247 ; Per Curiam, Soorjeemoney Dossee
.V. Denohundoo, 6 M. I. A. 539; Suraj Bunsi Koer's Case, L. E. 6 I. A. 88.
ig) Gurlingapa v. Nandapa, I. L. E. 21 Bom. 797 ; Aiyyagari v. Ramayya,
I. L. E. 25 Mad. 690; Lakshman v. Ramchandra, L. E. 7 I. A. 18; Rangayana
V. Ganpa, I. L. E. 15 Bom. 673.
(h) Mit., Chap. I., sec. 2, paras. 11 and 12, ibid. 380; May., Chap. IV., sec. 4,
para. 16, ibid. 51.
612 HINDU LAW. [BOOK II.
exceptions according to the caste law of the parties. Thus
amongst 82 of the 101 castes, from whom information was
obtained by Mr. Steele at Poona, it was found that partition
could not be enforced by a son against his father unless the
father had acted improperly as manager (i). It would seem,
therefore, that in the usage of a large minority, at least of the
people of the Dekhan, the rule of Baudhayana (k) is still received
as law. " While the father lives the division of the estate takes
place (only) with his permission." In Gujarath the castes,
almost without exception or quahfication, answered Mr. Borra-
daile's enquiries by denying the right to partition of a son against
the wish of his father. Although the Sastris, therefore, as in
Chap. I., sec. 1, Q. 3, 6, below, generally follow the Mitakshara
in recognizing a son's right to enforce partition, there is room
for reasonable doubt as to whether it can be considered as finally
established except amongst those castes or classes whose rights
and duties in this particular have become the subject of judicial
decision. Uniformity of the law is so desirable that the Courts
will naturally desire to abide by the Mitakshara and the
Mayukha (l), whose doctrine has been adopted by the Judicial
Committee (m), but it is only fair to point out that custom does
not appear to have more than partially accepted these authori-
ties on the point now in question. On the one side are the Sastris
whose opinions are entitled to respect; but on the other are the
answers given by the representatives of the castes themselves.
Even amongst the Brahmans the son's right does not seem to be
fully admitted by any of the classes whose answers are preserved
in Mr. Borradaile's collection; while amongst the lower castes
the answers, without exception, so far as has been discovered,
were either that the son could not enforce partition at all, or else
that the father could retain so much as he wished of the ancestral
property (n). This would of course reduce the son's right to
nothing (o). In several cases the surviving mother's assent is
(i) Steele, L. C. 216; see ibid., pp. 405, 407. (k) Transl. p. 224.
(l) See Book II., Vyav., Chap. I., sec. 1, Q. 1.
(m) See Suraj Bunsi Koer's Case, L. K. 6 1. A., at p. 100.
(n) So in Steele, L. C. 405, 407 ss.
(o) Amongst the Oudich Brahmans of Broach and the neighbourhood it was
said that there was no instance of sons having made a partition during their
father's life. The father dividing the property might retain as much as he
wished for himself during his life, subject to the rights of his sons at his death ;
Borr. Lith., p. 59.
SEPARATION.
618
said to be necessary to validate a partition after the father's
death, and in nearly all it is set forth as a condition that she is
to be provided for (p).
(p) This is in accordance with a tendency in many castes to favour the
mother in the matter of succession. See above, pp. 91, 152, and Book I., Vyav.,
Chap. II., sec. 6a, Q. 19, 21, 23, 24, 26.
The (Bhargova Visa) Brahmans of Surat said : " So long as the father lives
his sons are not competent, without his consent, to divide the father's or grand-
father's property." (Borr. Lith., p. 85.) So also those of Broach. (Ibid.,
p. 127.) A similar rule was stated by the Srimali Brahmans of Surat and of
the neighbourhood of Broach. (Ibid., pp. 151, 182.) The Mewara Chowraisi
Brahmans recognised a partition at the father's option during his life ; but no
instance has occurred of one against his will {ibid., p. 211) at Surat. At
Broach no partition is allowed without his consent {ibid., p. 227). The Mewara
Bhuttee Tulubda Brahmans of Surat allow no partition without the father's
assent in his life either of his property or of the grandfather's. {Ibid., p. 244.)
He may divide and then the sons during his life take what he has assigned to
each. So amongst the Sachoura, and Waira, and Oonewal Brahmans of Surat.
{Ibid., pp. 298, 319, 342.) The Brahmans (Motola, Desaee Tur) of Oolpar
stated a similar rule {ibid., p. 267) as prevailing amongst them. At Broach
amongst the Oonewal Brahmans should a son separate himself the father sets
apart a share for him. {Ibid., p. 363.) Amongst the castes below the Brahmans,
the assent of the father is set forth as indispensable amongst the following :
Borr. Coll. MS.
i
Book G, p. 29
Bhaosar Cheepa Sooruti
... Surat.
76
Bhaosar Shravak (Tuppa Sect.)
... Surat.
135
Sootar Punchallee Sooruti ...
... Surat.
200
Sootar Goojar Tulubda Sooruti
. . . Surat.
252
Sootar Purdaisee Khatee
... Surat.
296
Lobar
... Ahmedabad.
335-6 Sootar Lobar Sooruthiya ...
... Surat.
362
Khatree Vunkur Sooruti
... Surat.
410
Durjee Meeraee Sooruti
... Surat.
445
Malee Sonathiya Sooruti
. . . Surat.
475
Malee Moghreliya Sooruti ...
... Surat.
510
Kudiya Sooruti
... Surat.
541
Pukhalee Sooruti
... Surat.
668
Vansphora Sooruti
. . . Surat.
591
Vansphora Dukhani Sooruti
... Surat.
609
Koombhar Goojurathi Sooruti
... Surat.
636
Dhobee Eawatiya Sooruti ...
... Surat.
699
Waghrees
... Surat.
719
Duphgur Eajpoot
—
745
Khalpa Puttuni
... Surat.
773
Khalpa Kbumbarti Sooruti ...
... Surat.
BookCDE, p. 16
Bruhm Kshatrees, &c.
... Broach.
39
Kayusthus Valnik
... Surat.
57
Kayusthus Mathur
... Surat.
614
HINDU LAW.
[BOOK II.
A member cannot enforce a partial division {q), though it can
be effected by arrangement (r). As to this, however, Sir E. Couch,
C.J., in Shib Suha-ye Singh et at. v. Nursing Loll et al. (s) says,
" I did not intend to decide any such general question." But
this is the recognised law in Bombay {t), and in the North -West
Provinces {v), Madras {w), and Bengal {x). The same rule holds
good in respect to one or more members of a family, consisting of
brothers or collaterals only (i/), the whole property being brought
Book C D E, p. 73 Sonee Dumuniya Surat.
89 Sonee Tragun Javeeya Surat.
110 Lobar Bhownugguriya Surat.
128 Bharboonja Kayustba ... ... ... Surat.
144 Eajpoot Jadbowvansbi
157 Purdesee Aliya Surat.
174 Salvee Sreemalee Veesa Surat.
192 Koombbar Lar Sooruti Surat.
210 Sulat Sompoora Sooruti Surat.
229 Mocbee Kudiya Kbumbarti Surat.
245 Bburwar ... ... ... ... ... Surat.
Book F, p. 28 Hujjam Mebsooriya Surat.
59 Sootbar Vaisya ... ... ... ... Surat.
120 Hujjam Kalmooniya Surat.
165 Kbutree Pburusrami ... ... ... ... Broach.
201 DberTulubda Surat.
229 Sootbar Puncbolee ... ... ... ... Broacb.
259 Brabmans Kberwa Hoomunero Gour.
In no instance is tbere an admission of an unqualified rigbt on tbe part of
a son to enforce a partition and obtain a sbare.
Tbe instances above tabulated are all drawn from tbe districts of Surat and
Broacb. Tbe collection for Abmedabad was not completed, or it bas been lost,
(g) Nanahhai v. Nathobhai, 7 Bom. H. C. K. 47, A. C. J. For tbe Bengal
law, see tbe note of Sir W. Jones at 2 Str. H. L. 251. He tbinks tbat tbe text
of Manu IX. 104, " After tbe deatb of tbe parents, &c.," prevents a partition,
even after tbe fatber's deatb, except witb tbe motber's assent. See above,
sec. 3 A, and tbe case of Lakshman v. Satyabhamahai, I. L. K. 2 Bom. 494;
Shiv7nurtappa v. Virappa, I. L. E. 24 Bom. 128; Kristayya \. Narasimha,
I. L. E. 23 Mad. 608 ; Jogendra v. Jugobundhu, I. L. E. 14 Cal. 122.
(r) Gavri Shankar v. Rajaram, I. L. E. 18 Bom. 611 ; Muthsami v. Nallaku-
lantha, I. L. E. 18 Mad. 418; Radha Churn v. Kripa, I. L. E. 5 Cal. 474.
(5) 22 C. W. E. 354.
(t) Trimbak Dixit v. Narayan Dixit, 11 Bom. H. C. E, 69 ; Venkatesh et al.
V. Ganapaya, E. A. Nos. 30 and 31 of 1876, Bom. H. C. P. J. F. for 1876,
p. 110; Shivmurtappa v. Virappa, I. L. E. 24 Bom. 128.
(v) Mithoo Lall v. Golam Nuseer-ood-deen et al., 4 Agra Eep. 276.
(w) Kristayya v. Narasimha, 1. L. E. 23 Mad. 608.
(x) Jogendra v. Jugobundhu, 1. L. E. 14 Cal. 122.
(y) Mit., Cbap. I., sec. 3, para. 1; Musst. Deowanti Koonwar v. Dwarkanath,
8 B. L. E., at p. 363, note; 2 Str. H. L. 358.
SEPARATION. 615
into account (z), so far as it is common (a), but one coparcener
may separate himself while the rest remain joint as before (b).
The right to claim a partition is not lost by its non-exercise
during six or seven generations (c). A decree for partition pro-
duces an immediate severance of interests (d), subject, however,
to the result of an appeal should one be made. An appeal, accord-
ing to the view held by the Bombay High Court, seems to suspend
or postpone the division until it is decided, according to the cases
quoted below, sec. 4 D (e).
3. Partition in Execution of Decrees. — The creditor of an un-
divided coparcener may obtain execution of his decree against the
share of his judgment debtor by enforcing a partition (/). This is
(z) Lakshman D. Naik v. Ramchandra D. Naik, I. L. E. 1 Bom. 561. See
below, sec. 7.
(a) Moti Mulji v. Jamnadas Mulji, S. A. No. 77 of 1877, Bom. H. C. P. J. F.
for 1877, p. 123; Ballal Krishna v. Govinda et al., S. A. No. 25 of 1877; ibid.,
p. 124.
(b) Anandibai v. Hari, I. L. E. 35 Bom. 293; Gavrishankar v. Rajaram,
I. L. E. 18 Bom. 611.
(c) Thakur Durriao Singh v. Thakur Davi Singh, L. E. 1 I. A. 1 ; Moro
Vishvanath v. Ganesh, 10 Bom. H. C. E. 444. As to limitation, see above,
p. 589, and below, sec. 4 D.
(d) Joy Narain Giri v. Grish Chandra, L. E. 5 I. A. 228; Parbati v. Naunihal
Singh, L. E. 36 I. A. 71; Kewal v. Parbhu, L. E. 44 I. A. 159; Lakshman v.
Narayan, I. L. E. 24 Bom. 162; Ram Pershad v. Lakhpati, I. L. E. 30 Cal. 231,
P. C.
(e) The right acquired by a decree may be abandoned by non-execution,
Prankissen Mitter v. Sreemutty Ramsoondry Dossee, 1 Fult. 110. This might
be regarded as a case of reunion as soon as limitation barred execution of the
degree. Sakharam v. Hari, I. L. E. 6 Bom. 113, contra Thandayuthapani v.
Raghunath, I. L. E. 35 Mad. 239. As to when a decree becomes complete, see
Jotindra v. Bejoy, I. L. E. 32 Cal. 483.
(/) The whole property of two co-sharers may be attached for the debt of
one, though only the undivided moiety can be sold, Goma Mahadev. v. Gokaldas
Khimji, I. L. E. 3 Bom. 74. By proceedings in execution against a single
parcener (even the father) alone, his interest only, not that of his sons, can
be affected according to Deendyal Lai v. Jugdeep Narain Singh, L. E. 4 I. A.
247. (See on this subject above, pp. 621 ss.). Separation may be enforced in
order to give effect out of his own share to a sale made by a single member of a
joint family, 2 Str. H. L. 349, or to a sale of such share in execution, Bai Suraj
V. Desai Harlochandas, Bom. H. C. P. J. P. for 1881, p. 123, and Gopal Narayan
V. Atmaram Ganesh, Bom. H. C. P. J. F. for 1879, p. 489. Such a transaction,
however, Ellis says, Str. H. L. loc. cit., is presumably collusive on the part of
the purchaser. See below, sec. 4 f. ; Suraj Bunsi Koer v. Sheo Purshad Singh,
L. E. 6 I. A., at p. 109; 4 Comyn's Dig. 233.
A judgment debtor and his sons having joint possession of family property,
616 HINDU LAW. [BOOK II.
closely connected with the law now recognized in Bombay and
Madras, that a parcener may dispose effectually of his own un-
divided share for value, though not by way of gift or devise,
except for pious purposes {g). It is improper to put a purchaser
of land in execution of a decree against one member of an
undivided family into possession of the property (h). Where he
has. been actually placed in possession, the other co-sharers will be
awarded joint possession and the parties will be left to work out
their several rights should they desire it by a suit for partition (i).
The alienation is thus subject to claims of the other sharers on
the common property (k). What is sold for the necessary dis-
charge of a common liability is deducted from the common
estate (l).
the latter can sue for a declaration of their title to two-thirds of the property,
whilst under attachment under decree of a creditor as against the former, without
asking for consequential relief, Narayan Damodar v. Balkrishna Mahadev,
I. L. E. 4 Bom. 629.
ig) See the elaborate judgment of Sir M. Westropp, C. J., in Vasudev Bhat
V. Venkatesh Sanhhav, 10 Bom. H. C. E. 139; Udaram Sitaram v. Ranu Panduji
et al., 11 ibid. 76; Mahahalaya v. Timaya, 12 ibid. 138, &c., referred to below;
Tukaram v. Ramchandra, 6 ibid. 247, A. C. J. ; Suraj Bunsi Kooer v. Sheo
Prashad Singh, L. E. 6 I. A. 88, 101; Anant Balaji v. Ganesh Janardhan,
I. L. E. 6 Bom. 499, which discusses Pandurung Aanandrav v. Bhasker
Sadashev, 11 Bom. E. 72, 76 ; Mahabalaya v. Timaya, 12 Bom. E. 138; Dugappu
Sheti V. Venkatramnaya, I. L. E. 5 Bom. 493, 496 ; Kalappa v. Venktesh
I. L. E. 2 Bom. 676, citing Nowla Oooma v. Bala Dhurmaji, ibid. 95 ; Gopal
Narayan v. Atmaram Ganesh, H. C. Bom. P. J. F. for 1879, p. 489; see above,
pp. 565 ss.
The share of a widow arising on partition cannot be defeated either by execu-
tion proceedings or by a voluntary partition, Bilass v. Dinanath, I. L. E. 3 All.
p. 88. At Allahabad the mother is entitled to a share as against the purchaser
under a decree of the share of the sons. In Bengal it has been ruled that
after the institution of a suit for partition, the purchaser of a son's share takes
it subject to its contribution to the mother's share claimable on partition,
though a previous purchaser is not subject to such a deduction, Jogendra v.
Fulkumari, I. L. E. 27 Cal. 77, and Barabi Debi v. Debkamini, I. L. E. 20 Cal.
682. Comp. Parwati v. Kisansing, I. L. E. 6 Bom. 567.
(h) Deendyal Lai v. Jugdeep Narain Singh, L. E. 4 1. A., at pp. 251, 252,
255; Anant Balaji v. Ganesh Janardhan, I. L. E. 5 Bom. 499, which discusses
the previous cases, and pp. 567, 578, supra.
(i) Mahabalaya v. Timaya, 12 Bom. H. C. E. 138; above, p. 589.
(k) Muccandas v. Ganpatrao, Perry's 0. Ca. 143; Jogendra v. Fulkumari,
I. L. E. 27 Cal. 77.
(I) Narayan Vinayak v. Balkrishna Narayan, Mis. S. A. No. 21 of 1872,
Bom. H. C. P. J. F. for 1872, No. 190; Sakharam v. Deoji, I. L. E. 23 Bom.
372; Bhana v. Chindhu, I. L. E. 21 Bom. 616.
SEPARATION, PERSONS AFFECTED. 617
§ 4 c. Right to paHition limited to demandant and his share.
1. It must be considered a fundamental principle, that each
coparcener has power only to effect his own separation from the
family, and not to enforce a separation amongst the other copar-
ceners against their will (m). In the Mitakshara Chap. I., sec. 2,
para. 1 (n) it is stated, that " When a father wishes to make a
partition, he may at his pleasure separate his children from him-
self, whether one, two, or more sons," and the comment on this
by Balambhatta, as translated in the note, is, that he may "make
them distinct and several by giving to them shares of the inheri-
tance." From this it would at first sight appear, that a father
has a right not only to sever himself in interest from his sons, but
also to effect a separation amongst the sons, independently of
their desire or assent (o). This, however, would not be a correct
inference ; the entire comment of Balambhatta runs thus :
** (If) he make them distinct by giving to them shares of the inheritance.
As the limit of this (separation) is desired to be known, he (Vijnanesvara) adds :
' From himself.' "
" The purport is, that the (author) does not stop to consider, whether they
(the sons) remain afterwards united or separate."
This is evidently not conclusive either of separation or of union
in such a case.
It is, no doubt, competent to a father to distribute, to a certain
extent, his self-acquired property at his own pleasure amongst
his sons (p). But it does not follow, that by such a distribution,
a separation amongst them individually and independently of
their own desire will be effected. There appear to be no texts
which lay down such a rule, and Jagannatha, in Colbrooke's
Digest, Book V., Chap. VIII. Text 430, explicitly recognizes the
doctrine of a continuance of union in a family, notwithstanding
the separation of individual members and the allocation to them
of their share in the estate (q). He makes separation or non-
(m) Anandihai v. Hari, I. L. E. 35 Bom. 293 ; Bata v. Chintamoni, I. L. R.
12 Cal. 262 ; Radha Churn v. Kripa, I. L. R. 5 Cal. 474, F. B.
(n) Stokes's H. L. B. 377.
(o) This would be the most natural inference from Narada also. See Narada,
Part II., Chap. XIII., si. 4.
(p) Below, sec. 7 A, la (2), and Chap. I., sec. 1, Q. 4, Rem.; Steele, L. C.
68, 216, 330. Rao Balwant Singh v. Rani Kishori, L. R. 25 I. A. 84.
iq) So Steele, L. C, p. 214.
618 HINDU LAW. [BOOK II.
separation depend on the free consent of the coparceners, resting,
in the absence of explicit texts, on the reason of the law — a prin-
ciple recognized in the Hindu as well as in the English jurispru-
dence (?•). So too the Privy Council (s) say, " It is, however, clear
upon the evidence that the two other brothers continued joint
after the separation of Shama Doss" (t).
This principle has been questioned in Madras, where the right
to sever the sons inter se seems to have been regarded as a part
of the paiiia potestas still recognized by the Hindu law (v), and
in Lakshmihai v. Ganpat Moroha (w) it was laid down, that a
grandfather could, by a will distributing a share of ancestral pro-
perty received by him on a partition in equal portions among his
grandsons, effect a separation amongst the latter (x). The reason-
(r) Col. Dig., Book II., Chap. IV., Text 17. The defendants in a suit for
partition in England need not submit to it inter se. The partition may be
limited to the share of the plaintiff. Hohson v. Sherwood, 4 Bea. 184, and a
conveyance by a single joint tenant severs only his share, Co. Lit. 394.
(s) In MtLSst. Cheetha v. Bahoo Miheen Lall, at 11 M. I. A. 380.
(t) See also Rewan Persad v. Musst. Radha Beeby, 4 ibid. 137.
(v) Kandasami v. Doraisami Ayyar, I. L. E. 2 Mad. 317. The learned judg-
ment sounds almost like an echo from an earlier world, one in vs^hich the equal
rights of sons with the father had not yet been developed. (See Narada,
XIII., 16; Apast. II., VI., 14.) The power ascribed is special to the father,
and would be exercised in vain against the will of sons who, being severed by
the father's will, might forthwith reunite by their own. The cases of infants
and absentees are distinct. See below. In the Punjab the division made by a
father may be revised at his death, see Panj. Cust. Law, II., p. 169, 180, 206,
257. A similar case in the Dekhan, Steele, L. C, p. 219.
(w) 5 Bom. H. C. E. 0. C. J. 128.
(x) As to Wills, see above, pp. 209 ss.
A daughter (childless) may dispose by will of property inherited from her
father as against his heirs or her own, Haribhat v. Damodharbhat, I. L. E.
3 Bom. 171, quoting Narotum v. Narsandas, the note at 5 Bom. E. 136,
O. C. J., and Bhika v. Bhava, 9 Harr. E. 449.
Mr. Ellis thought that a Hindu could not make a will at all, 2 Str. H. L. 419.
It is obviously opposed to the Brahmanical family system and to the interest
of the ancestral manes in the estate out of which sacrifices to them are to be
provided. A general opinion unfavourable to the testamentary power was
expressed by native judicial officers consulted in Bombay in 1864. But the
principle obtained early recognition, though but a qualified one, that what
could be given away during life could be bequeathed by will. See Doe dent
Munnoo Lall v. Goper Dutt (a.d. 1786), Mort. E. 81; M. V. Vardiah v.
M. Lutchumia (a.d. 1824), M. S. D. A. Dec. 438. In Madras, wills of Hindus
have long been recognized by statute if made in conformity with Hindu Law,
Beg. III. of 1802, sec. 16, and Eeg. V. of 1829, sec. 4, but this condition left
SEPARATION, PERSONS AFFECTED. 619
ing of the learned Judge in that case was not, however, concurred
the whole question of testamentary competence open, as may be seen by a
reference to the Madras decisions.
In Bombay separate and self-acquired property may be thus dealt with,
Nana Narain Rao v. Haree Punt Bhao et al., 9 M. I. A. 96, 98; Baboo Beer
Pertah Sahee v. M. Majender Pertah Sahee, 12 M. I. A., at p. 38; Adjoodhia
Gir et al. v. Kashi Gir et al., 4. N. W. P. H. C. E. 31; Bhagvan Dullahh v.
Kalla Shankar, I. L. E. 1 Bom. 641. The extent of the testamentary power
must be regulated by the Hindu law, Sonatun By sack v. S. Juggutsoondree
Dossee, 8 M. I. A., at p. 85 (which furnishes no analogy but that of gifts);
Colebrooke at 2 Str. H. L. 428, 431, 435; Jotindra Mohan Tagore v. Ganendra
Mohan Tagore, S. I. A. 47 S. C, 9 Beng. L. E., at p. 398. But see also
S. Soorjeemoney Dossee v. Denobundoo Mullick et al., 9 M. I. A. 123. Thus
a will cannot be made of ancestral property in which sons have an interest,
though effect may be given to it as a family arrangement, Lakshmibai v.
Gunpat Moroba et al., 5 Bom. H. C. E. 135, 0. C. J. ; 2 Str. H. L. 436. The
castes reject the wills of testators having issue, Borr. Coll. passim.
That a Hindu's will is to be construed according to Hindu law, see S. Soor-
jeemoney Dossee v. Denobundoo Mullick, 6 M. I. A., at p. 550; Musst. Kollaney
Kooer v. Luchmee Pershad, 24 C. W. E. 395 ; Jotindra Mohan Tagore v.
Ganendra Mohan Tagore, S. I. A. 47; S. C, 9 Beng. L. E. 395; Molvi
Mahomed Shumsool Rooder et al. v. Shewukram, 14 Beng. L. E. 227, 230,
S. C, L. E. 2 I. A. 7; Musst. Bhagbutti Daee v. Chowdry Bholanath Thakoor
et al., L. E. 2 I. A. 256, 261; Ramguttee Acharjee v. Kristo Soonduree Debia,
20 C. W. E. 473, C. E. As to the form, a nuncupative will is effectual,
Bhagvan Dullabh v. Kala Shankar, I. L. E. 1 Bom. 641 ; and so is a parol
revocation, Maharaj Pertab Narain Sing v. Maharanee Soobha Kooer et al.,
L. E. 4 I. A. 228.
In East's cases No. 75 is a case of an adoption by a prostitute of a girl. It
was said after adoption the son's share could not be devised, see Mor. Dig. 133.
The following cases and observations on the law of wills may be added to
the brief discussion of the subject in Book I., sec. 4, sub-sec. 6, and in the
note above. An attempt to create a perpetuity will not be supported, Muccondas
v. Ganputrao in Perry's Or. cases; above, pp. 179, 193, 194. See Abdul Ganee
Kasam v. Hasan Meya Rahimtulla, 10 Bom. H. C. E., at p. 10.
A charge on property for worship will not give effect to an attempt to create
a perpetuity in the surplus proceeds, Ashutosh Dutt v, Doorga Churn Chatterjee,
L. E. 6 I. A. 182 ; above, pp. 179, 182, 184 ; Promotho Dossee v. Radika Persaud
Dutt, 14 Beng. L. E. 175.
A bequest for the erection of a bathing ghat and temples at the discretion
of the executor, who renounced, was declared void for uncertainty, Surbo
Mungola Dabee v. Mohendronath, I. L. E. 4 Cal. 508. It may perhaps be
doubted whether effect should not have been given to this bequest according to
the Hindu law; see above, pp. 223, 224; Steele, L. C. 214, 404, 405.
Section 234 of the Indian Succession Act, X. of 1865, applies to Hindus, and
an application may be made under it to revoke the probate of a Hindu's will.
In re Pitamber Girdhar, I. L. E. 5 Bom. 638.
By the Hindu Wills Act, XXI. of 1870, the forms prescribed by sec. 60 of
620 HINDU LAW. [BOOK 11.
in by the Court on appeal, and the ultimate decision was based on
the Succession Act, X. of 1865, must be followed by Hindu testators where the
Act is in force, i.e., Lower Bengal and the towns of Madras and Bombay.
The Hindu Wills Act was not intended to introduce changes in the substantive
Hindu law. The introduction of sees. 98, 99, 101 of the Succession Act is
subject to all the provisos in sec. 3 of the Hindu Wills Act, which was not
intended to enlarge a testator's power, only to regulate its exercise, Alang-
manjari Dahee v. Sonamonee Dahee, I. L. E. 8 Cal. 637.
A person claiming under a will in the Mofussil is not generally obliged to
obtain probate. See above, p. 221. Act V. of 1881, however, by sec. 4, makes
the executor or administrator of the deceased his legal representative, and vests
the property in him. By sec. 2 of the same Act, Chaps. II. to XIII. thereof
apply in the case of " every Hindu, Buddhist and person exempted under
sec. 332 of the Indian Succession Act, 1865, lying before, on, or after 1st April,
1881." Again, it is provided " that except in cases to which the Hindu Wills
Act, XXI. of 1870, applies, no Court in any local area (in the Mofussil) . . .
shall receive applications for probate or letters of administration until the local
Government has, with the previous sanction of the Governor-General in Council,
by a notification in the Ofi&cial Gazette authorized it so to do." The High
Courts are, as to such areas, similarly restricted. Now Act XXI. of 1870 in a
sense applies to all wills made by Hindus, &c., in the towns of Bombay and
Madras, but it does not apply to those made in the Mofussil, except so far as
they relate to immovable property within the presidency towns. The result
seems to be that until the issue of the requisite notifications the law in the
Mofussil remains what it was, while in the Presidency towns the new legisla-
tion applies to the estates of all classes of natives. When the Notification has
been issued in Bengal the whole Act will operate generally there along with
Act XXI. of 1870, but in Bombay and Madras the Act of 1870 is limited to the
Presidency towns. In those towns, therefore, the provisions of the two Acts
will operate alone from April 1, 1881, conditionally on the notification required
by sec. 2 having been made. The provisions of sec. 52 of Act V. of 1881 are
repeated verbatim in Act VI. of 1881, sec. 2, as an addition (sec. 235 A) to
Act X. of 1865, and other provisions are made with regard to " District Dele-
gates." The tangle, here, of exemptions, exceptions, provisos, and conditions
is such as will afford a useful exercise to the perspicacity of students of the law.
As to testators, the words of H. H. Wilson (W^orks, V. 58) may be quoted :
" If the Hindus are to be authorized to make wills, they should be instructed
how to make them and not be suffered to . . . make the arrangements which
they contemplate subject to improbable or impracticable conditions."
As to the construction of Hindus' wills, see above, pp. 184, 219, 223, 618.
Such words as " putra paotradi krame " and " naslan bad naslan," though
primarily importing the male sex, yet included females as heirs to either males
or females, Ram Lai Mookerjee v. Secretary of State for India, L. E. 8 I. A. 46.
The usuab notions and wishes of Hindus with regard to the devolution of
property may properly be taken into consideration, Moulvie MaJiomed v.
Shevukram, L. E. 2 I. A. 7. Compare Maniklal Atmaram v. Manchershi
Dinsha, I. L. E. 1 Bom. 269; see above, pp. 183, 184, 202.
A bequest to a class not completely ascertained and existing at the testator's
SEPARATION, PERSONS AFFECTED. 621
different grounds {y). The views above stated are conformable to
those set forth by Sir T. Strange, H. L., 193 and 204, the autho-
rity quoted by whom, however, is not appHcable. In a Bengal
case effect was refused to a father's deed of partition which had
not been carried out by actual distribution in his life (z). Con-
versely when a testator had bequeathed his business to his sons,
but had directed that there should be no partition for twenty
years, the latter direction was held repugnant, and the sons
entitled to immediate partition (a). In Ramkishore Kedarnath v.
death fails as to those even who do exist, according to Soudaminey Dossee v.
Jogesh Chunder Dutt, I. L. E. 2 Cal. 262; Kherodemoney Dossee v. Dhoorga-
money Dossee, I. L. R. 4 Cal. 455. The provisions of sees. 102 and 103 of the
Indian Succession Act, X. of 1865, do not apply to the Mofussil, but do apply
to the town of Bombay under Act XXI. of 1870. The references to the Hindu
law in the latter of the two cases just cited seem to show that those qualified
at the testator's death might take, but the decisions point the other way. Comp.
pp. 183 ss.
According to the English Statute, 3 & 4 Wm. IV. c. 106, an heir who is
also a devisee takes in the latter character.
The present freedom of devise in England is of quite recent origin. Before
the Conquest a man might dispose as he pleased of his own acquisitions, though
his devise of book-land was usually precatory on account of the temporary
character of his interest as strictly viewed. After the Conquest " till modern
times a man could only dispose of one-third of his movables from his wife and
children, and in general no will was permitted of lands till the reign of Henry
the Eighth, and then only for a certain portion; for it was not till after the
Restoration that the power of devising real property became so universal as at
present," Kerr's Blackstone, II. p. 11. The Latin nations adopted the Roman
Law system of testaments much more readily ; the older German Law, as
reported by Tacitus, was simply Heredes successoresque sui cuique liberi et
nullum testamentum. The customary equal partition of lands under the law
of gavelkind seems to have been limited to the undivided estate, and over this
by the old Common Law a father had not a power of free devise, which indeed
is manifestly opposed to rights of equal partition. See for the Saxon Law,
Elton, Tenures of Kent, 74; and comp. infra, Book II., Vyav., Chap. I., sec. 2,
Q. 4. The custom of the City of London down to 1725 allowed a freeman to deal
by way of devise with only the half or one-third equal to the half or one-third
which it gave to his widow and to his children even of his personal property,
Vin. Abt. Customs of London. Thus the notions of the Hindus were substan-
tially those of the English until a comparatively recent time.
iy) See Lakshmibai v. Ganpat Moroha, 5 Bom. H. C. R. 128 0. C. J.
(z) Bhowannychurn v. Heirs of Ramkaunt, 2 C. S. D. A. R. 202. This case
may be referred to another principle, see below, sec. 4 d, but it shows that the
mere volition of the father was not held by itself to create the desired jural
relations.
(a) Mokoondo Lall v. Gonesh Chunder, I. L. R. 1 Cal. 104. His inculcation
of joint enjoyment is no bar to a suit for partition, Raja Sooranany Venkata.
622 HINDU LAW. [BOOK II.
Jainarayan (b) the Privy Council have held that a partition made
by a father may be impeached by the minor son if a share was
given to an absolute stranger without any consideration or by way
of a bona fide compromise of a claim in dispute.
§ 4 c. 2. Great-grandson. — Devala says, " Partition among
undivided parceners and among reunited parceners extends to
the fourth in descent from a common ancestor." According to
the Mithila law * ' the partition of heritage shall extend from the
original owner of the estate to his descendants in the fourth
degree." (c) The case of a great-grandson is not otherwise ex-
pressly dealt with in the Hindu law books except in a rather
obscure passage of Katyayana quoted by the Viramitrodaya (d),
but it rests on the same principle as that of the grandson, viz., on
the doctrine of representation (e).
§ 4 c. 3. Minors. — In the case of minor coparceners, it would
certainly tend to convenience if the doctrine, apparently upheld
by the Madras and Bombay High Courts (/), that a minor copar-
pettyrao v. R. S. Ramchandra, 1 M. S. D. A, Dec. 495. So Macn,, Cons, on
H. L. 323; see above, pp. 179, 182, 193.
The Madras High Court allows a gift but not a bequest by an undivided
coparcener, Vitla Buttel v. Yamenamma, 8 Mad. H. C. E. 6. The latter it
thinks prevented by the survivorship. This principle v^as recognized by the
Privy Council in Suraj Bunsi Koer v. Shivparsad Singh, L. B. 6 I. A. 88. In
Bombay the gift of undivided property by a joint coparcener is illegal, see Privy
Council in Lakshman Dada Naik v. Ramchunder, L. B. 7 I. A. 181. A father
in an undivided family cannot dispose by will of his undivided share without
the consent of his co-sharers, ihid. The alienation by gift where, as in Madras,
that is admitted, is founded on a parcener's right to partition and dies with
him, the title of the other co-sharers vesting by survivorship at the moment of
his death. The Sastris denied any power of disposal before partition in Bajee
Sudshet V. Pandoorung, 2 Morr. 93, According to these cases the father's
declaration of will would be inoperative, except after partition or to effect it in
his own case.
A joint tenant under the English Law was not a devisable interest, Co. Lit.
186 h.
(h) L. B. 40 I. A. 213; S. C. I. L. B. 40 Cal. 966.
(c) Vivada Chintamani, p. 283.
id) Transl. p. 72.
(e) " The great-grandson's son is not entitled to any share." Viram. loc. cit.
if) Nallappa Reddi v. Balammal et al., 2 Mad. H. C. B. 182, quoted in
Lakshmihai v. Ganpat Moroha et al., 5 Bom. H. C. B. 0. C. J., p. 128. Every
minor is to be guarded by the King, Col. Dig., Book V. T. 449; 2 Str. H. L. 72.
SEPARATION, MINORS. 623
cener is to be represented in partition by his guardian, could be
based on any explicit texts. All, however, that can be deduced
from the original authorities appears to be that the interests of
the minor shall be duly regarded, and shall, if necessary, be pro-
tected by the sovereign power. His position is, in fact, declared
to be analogous to that of absentees, and the rules proceed on the
assumption that his assent or that of a guardian for him is not
essential (g). The minor must not be injured by any unconscien-
tious dealing. Mr. Colebrook, in an opinion quoted at 2 Str.
H. L. 360, says, that "the sovereign or his representative, as
guardian of the minor, is competent to authorize a partition,"
and for this opinion he refers to a text of Katyayana, Col. Dig.,
Book v.. Chap. VIII., T. 453. But this text points to the neces-
sity of protecting the minor's interest, if, contrary to the ethical
Krishnahai v. Khangowda, I. L. E. 18 Bom. 197; Chowdhry Ganesh v. Jewach,
L. R. 31 I. A. 10; S. C. I. L. R. 31 Cal. 262.
Minority now ceases at 18 years of age, Act IX. of 1875.
A guardian may sell a portion of a minor's property to maintain a suit
beneficial to the minor, Ganga Prasad et al. v. Phool Singh et al., 10 C. W. R.
106. Compare the cases of Lalla Bunseedhur v. Koonwar Bindeseree Dutt
Singh, 10 M. I. A. 464, and Dharmaji Vaman et al. v. Gurrav Shrinivas et al.,
10 Bom. H. C. R. 311; Taikom Devji v. Aba, Beng. H. C. P. J. 1878, p. 126.
The minor is bound by a compromise made in good faith, Bahoo Lekraj v. Bahoo
Mahtah Chand, 14 M. I. A. 393.
When an administrator has not been appointed under Act XX. of 1864 a
guardian ad litem of a minor may be appointed under section 443 of the Code
of Civil Procedure, Act XIV. of 1882, Jadow Mulji v. Chhagan Raichand,
I. L. R. 5 Bom. 306. The office of administrator or of guardian ad litem
cannot be imposed on a person unwilling to accept it, Bahaji bin Kusaji v.
Maruti, 11 Bom. H. C. R. 182 S. C, I. L. R. 5 Bom. 310. An officer of the
Court may be appointed guardian, and being appointed remains subject to the
jurisdiction, see Act XV. of 1880, sec. 3, cl. (b).
The Minors Act for the Bombay Presidency is Act XX. of 1864. But this,
it has been held, does not enable the Civil Court under ordinary circumstances
to take charge of an infant's share in undivided property, Shivji Hasam et al.
V. Datu Mavji, 12 Bom. H. C. R. 281. So under Act XL. of 1858, Sheo Nundun
Singh v. Musst Ghunsam Kooeree, 21 C. W. R. 144. A different view, however,
seems to have been taken by the Judicial Committee in Doorga Persad v. Baboo
Keshav Persad, I. L. R. 8 Cal. 656. See below, p. 625, note (r).
The natural father is not the proper guardian of an adopted infant so long as
either of his adoptive parents lives, Lakshmibai v. Shridhar Vasuleo Takle,
I. L. R. 3 Bora. 1. The Bombay Minors Act XX. of 1864 is not superseded
by the provisions of the Code of Civil Procedure, Act V. of 1908, Murlidhar
v. Supda, I. L. R. 3 Bom. 149.
(g) Viramitrodaya, quoted below. Book II., Vyav., Chap. I., sec. 1, Q. 7;
2 Str. H. L. 341, 348.
624 HINDU LAW. [BOOK II.
obligation to remain undivided during the minority {h), a parti-
tion should actually be made by the adult coparceners, rather
than to any necessity for an assent expressed on behalf of the
minor (z). This text, indeed, and the one preceding it, with their
accompanying commentaries, imply a valid partition by the will
of the adults alone (k). In Balkishan v. Ram Narain (I) the Judi-
cial Committee has laid down that a partition is binding upon a
minor unless his interest was prejudiced by non-representation.
Again, in the case of Kharajamal v. Daim (m), it has been held
that a judicial sale was not to be disturbed for want of a minor's
representation if no prejudice is shown to him by his absence, and
on the same ground a partition by the mother was held binding
upon the minor by the Bombay High Court in Chanvirapa v.
Danava (n).
A partition demanded on behalf of a minor by his guardian or
friends, cannot usually be enforced against the will of the adult
coparceners. But such a demand may be enforced, when it is
necessary to prevent malversation or jeopardy to the minor's
interests (o). This opinion has been expressed by Mr. Colebrooke
also in the passage quoted above ; but it rests on the reason of the
law, not on any express texts. In the case of Govind Ramchandra
V. Moro Raghunath (o), reference is made to Sheo Nundun Singh
V. Musst Ghunsam Kooer (p), and to Shivji Hasam et al. v. Datu
Mavji Khoja (q), and the rule is repeated that " when the joint
(h) But only during the minority, as generally " a partition is favourably
viewed by the Hindu religion and law"; The Judicial Committee in Juggut
Mohinee Dossee v. Musst. Sokheemoney Dossee, 14 M, I. A., at p. 303.
(i) To the guardianship the paternal male kindred have the preference,
2 Str. H. L. 74. Any one may come forward as a next friend for an infant,
ihid. 79. A relative is to be preferred, ibid, 80.
(k) Kandasami v. Doraisami Ayyar, I. L. E. 2 Mad., at p. 323, referring to
2 M. H. C. K. and to Appovier's Case, 11 M. I. A. 75.
(l) L. K. 30 I. A. 139.
(m) L. R. 32 I. A. 23 ; S. C. I. L. R. 32 Cal. 296.
(n) I. L. R. 19 Bom. 593.
(o) App. No. 1 of 1875 (under Act XX. of 1864), Bom. H. C. P. J. F. for
1875, p. 261; Svamiyar Pillai v. Chokkalingam Pillai, 1 Mad. H. C. R. 105;
Alimel Ammal v. Arunachellam Pillai et al., 3 ihid. 69; and Kamakshi Ammal
V. Chidambara Reddi et al., 3 ibid. 94; 2 Str. H. L. 310, 362; Madhavram v.
Lakshman, 1. L. R. 19 Bom. 99; Bholanath v. Ghasi Ram, I. L. R. 29 All.
373; Damodar v. Senabutty, I. L. R. 8 Cal. 537.
(p)21C. W. R., p. 143 C. R.
(q) 12 Bom. H. C. R., p. 281 (S. A. No. 316 of 1872).
SEPARATION, MINORS. 625
property of an undivided family governed by the Mitakshara law-
is enjoyed in its entirety by the whole family, and not in shares
by the members, some of whom are adults, one member has not
such an interest therein as is capable of being taken charge of, and
separately managed, under the provisions of the Minors Act
(XX. of 1864) " (?•). In the same case the District Judge was.
directed to report whether on inquiry it seemed probable that the
minor would benefit by a suit for partition brought against his
uncles, against whom no "special instance of malversation," it
was said, had been alleged. In Meghasham Bhavanrao v.
Vithalrao Bhavanrao (s), it had been said, " No doubt the claim
for partition advanced on behalf of a minor is one that must in
every case be closely scrutinized. . . . Its result must in each
instance depend on the view that the Court below takes of the
evidence as rendering a partition necessary or not for the
(r) See also Bhagirthibai v. Sadashiv, Bom. H. C. P. J. F, 1881, p. 155, and
Samatsang v. Shivasangji and Ramasangji, Bom. H. C. P. J. F. 1882, p. 404.
But in Doorga Parsad v. Baboo Keshav Parsad, I, L. K. 8 Cal. 656, the Judicial
Committee say : "It is clear that the manager of an estate, although he may
have the power to manage the estate, is not the guardian of infant co-proprie-
tors of that estate for the purpose of binding them by a bond as Hur Nandan
did, or for the purpose of defending suits against them in respect of money
advanced with reference to the estate. Act XL. of 1858 . . . shows that Sheo
Nundan Persad, though he was a co-proprietor and manager of the estate, was
not the guardian of the infants who, according to the Act, were subject to the
jurisdiction of the Civil Court. . . . No certificate was obtained by Sheo Nundan
Persad ; and although it is stated that he was guardian to the infants he
clearly was not the legal guardian, and had no right to defend that suit in
their names." Hence it would seem a manager, to enable him to act for his
infant co-sharers, must take out a certificate of guardianship, though the Court
cannot on an application under the Minors Act, XX. of 1864, remove the adult
managing member from the control of the estate and business in which he and
all the members of the family are interested. See Babaji Shriniwas v. Sheshgir
Bhimaji, I. L. E. 6 Bom. 593. The view of the High Courts has been that
jurisdiction expressly given to the Civil Courts did not necessarily affect the
ordinary relations of a Hindu family, and that before a partition there is no
distinct property of the minor of which the manager has charge. All possess
together, the manager administers. See Appovier's Case, 11 M. I. A. 75 ;
Ramchundra Dutt v. Chundar Coomar Mundal, 13 M. I. A., at p. 198. Girdhari
LaVs Case, L. E. 1 I. A., at p. 229 ad fin. As to the representation of minors
in suits, see further Act XV. of 1880, sec. 3, cl. (b) ; Act XIV. of 1882,
sec. 440 88 ; Jadow Mulji v. Chhagan Raichand, I. L. E. 5 Bom. 306; Babaji v.
Maruti, ibid. 310; S. C. 11 Bom. H. C. E. 182.
(s) S. A. No. 148 of 1871, decided on the 14th of September 1871 (Bom.
H. C. P. J. F. for 1871).
H.L. 40
626 HINDU LAW. [BOOK II.
protection of the minor's interests " (t). A minor who has been used
unfairly in a partition may repudiate it on attaining his majority
or within a reasonable time afterwards (v). Where partition
would be detrimental to the shares, the Court, it has been held,
can refuse to decree a division (w). But a somewhat different
view was taken in Ram Pershad Narain v. The Court of Wards {w).
See further upon this point in Book II. the Digest of Vyavasthas
Chap. III., sec. 1, Q. 1.
§ 4 c. 4. Absentees. — The absence of one or more coparceners
does not bar partition {y), if it is desired by the coparceners
present (z). All that the law requires is that their equitable
shares, like those of the minors, be set apart in the division. For
the definition of what constitutes absence in a foreign country,
enabling the coparceners present to dispense with any expres-
sion of assent on the part of the absentee, see 1 Str. H. L.
188; Col. Dig., Book II., Chap. III., T. 26 and 27. The
great change of circumstances that has occurred in recent
times would make it necessary, for practical purposes, to fall
back, in this case as in others, on the reason of the law, the essen-
tial part of which here is evidently the supposed impossibility of
communicating with the absent co-sharer. The remarks of Sir
T. Strange, loc. cit., as to the periods of twelve and twenty years,
appear to refer to the propriety or impropriety of a distribution of
(t) In England a sale under the Partition Act sought on behalf of an infant
will not be allowed unless it is for his benefit, Rimington v. Hartley, L. E.
14 C. D. 630.
(v) Kallee Sunkur Saunyal et al. v. Denendro Nath Saunyal et ah, 23
C. W. K. 68 C. R. ; Dharmaji et al. v. Gurrav Shrinivas et al., 10 Bom.
H. C. R. 311; Balkislian v. Ram Narain, L. R. 30 I. A. 139; S. C. I. L. R.
30 Cal. 738.
(w) Durbaree Sing et al. v. Saligram et al., 7 N. W. P. R. 271.
(x) 21 C. W. R. 152.
(y )Viramitrodaya, quoted below, Book II., Vyav., Chap. I., sec. 1, Q. 7. The
Smriti Chandrika, Chap. XIII., p. 21 ss., says that when, a parcener having
absented himself, the other parceners have divided the property in ignorance
of his existence, he on his return is entitled to only half a share. Brihaspati is
cited to this effect, but the passage is really inconsistent with others which
follow.
(z) As to the presumption of death in the case of a person not heard of,
this arises in the case of one who went away at less than forty years old after
twenty years, at less than sixty years after fifteen years, at any greater age
after twelve years. The authorities, however, vary, see 1 Str. H. L. 188, 2 ibid.
237, 316 ; Steele, L. C. 34; Musst. Anundee Koonwar v. Khedoo Lai, 14 M. I. A.
412. For the present law see Act I. of 1872, sees. 107, 108.
SEPARATION, FEMALE SHARER. 627
the property, without reserving the absentee's share. There is
no text which enjoins the postponement of the division for the
advantage of an absentee, and his interests are otherwise suffi-
ciently protected, but there is, according to the Hindu Law, a
presumption of death in case of a Hindu travelHng in a foreign
country and not heard of for twelve years (a). The descendants
of an absentee may claim down to the seventh degree (b).
§ 4 c. 5. Wives, Mothers, &c. — Wives, mothers, grandmothers,
sisters, &c., the female members of "a united family, entitled to
shares on partition (c), are still not invested with any power to
demand a partition of the estate (d). This disability rests on the
(a) Musst. Anundee Koonwar v. Khedoo, 14 M. I. A. 412; S. C. 18 W. K. 69.
(b) 2 Str. H. L. 329; Moro Vishvanath et al. v. Ganesh Vithal et al., 10 Bom.
H. C. E. 444. As to Limitation, see above, p. 588 (c), and sec. 4 D.
It was formerly a rule in most if not in all parts of India, that a tenant
of land paying assessment to the government as proprietor or gwast-proprietor
might abandon the land for an indefinite time during which the Government
could dispose of it for the benefit of the revenue, but subject always to a resump-
tion of his former rights by the absentee on his return. See Bhaskarappa v.
The Collector of North, Canara, I. L. R. 3 Bom. 525. Appa v. Juggoo, 1 Morr.
57; above, p. 174; and below, sec. 5 B. As to the disposal of a share of a
village during the absence of a sharer by his co-sharers, see Sirdar Sainey v.
Piran Singh, I. L. R. 3 All. 458. The partition binds absentees who have
been effectively represented, Sakharam Bhargao v. Ramchandram Bhaskar,
Bom. H. C. P. J. 1881, p. 280.
(c) This right arises on a partition whether voluntary or enforced by a
creditor or purchaser in execution, Bilaso v. Dinanath, I. L. R. 3 All. 88;
Chowdhry Ganesh v. Jewach, L. R. 31 I. A. 10; Lakshman v. Satyahhamahai,
I. L. R. 2 Bom. 504; Badri v. Bhagwat, I. L. R. 8 Cal. 649.
According to the Bengal School the mother on partition is entitled to a share
equal to her sons, and when there are different groups of sons each of these
taking a share proportional to its number has then to sub-divide by the number
of its own members plus one in order to provide a share for the mother,
Hemagini Dasi v. Kedarnath, I. L. R. 16 Cal. 758, P. C. ; S. C. L. R. 16 I. A.
115; Beni v. Puran, I. L. R. 23 Cal. 262; Amrita Lai v. Manick Lai, I. L. R.
27 Cal. 551. In Madras even the mother is not held entitled to a share on
partition by her sons, Venkammal v. Andiappa, I. L. R. 6 Mad. 130. The
stepmother is entitled to a share by the Mitakshara, Damodardas v. Senahutty,
I. L. R. 8 Cal. 537; but the Dayabhaga (Chap. III., sec. II., 30) excludes her
and so does the Madras law.
(d) Isri V. Nasib, I. L. R. 10 Cal. 1017; Damodar Das v. Uttamram, I. L. R.
17 Bom. 271. In Bengal a grandmother not a party to a partition suit was
allowed to sue the parceners in order to secure her share along with the grand-
sons and grand-daughters, Sibbosoondery Dabia v. Bussoomutty Dabia, I. L. R.
7 Cal. 191. Her right to a share is again recognized, Badri Roy v. Bhugwat
Narain, I. L. R. 8 Cal. 649; Puma v. Sarojini, I. L. R. 31 Cal. 1065; though
HINDU LAW. [book II.
principle that males alone in a united family are regarded as
heirs, with rights untransferable to females. The source of the
she is held as not entitled to a share by the Allahabad High Court, Radha v.
Buchhaman, I. L. E. 3 All. 118. The position of sisters in the line of heirs
•is by Nanda Pandita and Balambhatta fixed as next after that of brothers for
reasons (see Col. Mit., Chap. II., sec. 4, pi. 1 note; Stokes's H. L. B. 443;
Rindabai v. Anacharya, 1. L. K. 15 Bom. 206,) rejected by the Privy Council
in Thakoorain Sahiha v. Mohun Lall, 11 M. I. A., at p. 402, but deriving some
support from the use of the word 5'antana= issue, in sec. 5, pi. 4 (Stokes's
H. L. B. 446), compared with sec. 2, pi. 6 {ibid. 441) and sec. 11, pi. 9
(ibid. 460). The right of sisters to an equal share seems to be recognised in
the passage of Manu IX. 212, quoted in the Mitakshara, Chap. II., sec. 9,
para. 12 (Stokes's H. L. B. 454). See also Narada, Pt. II., Chap. XIII., si. 13.
But Manu IX. 118 is different. See above, pp. 464, 468. In Lalljeet v. Raj,
20 W. E. 336, it has been held that a maiden sister is entitled to a quarter
share in a partition effected by the sons after the father's death. According to
the Mithila School this share is intended as suf&cient property to defray her
marriage expenses. The Mitakshara lays down that she gets it independent
of its sufficiency for defraying the expenses at her wedding, while the Vira-
mitrodaya asserts that this share is given to her in addition to the expenses
to be incurred at her marriage.
The mother of two out of four sons of one father is entitled on partition to
maintenance from all four, Musst. Muncha v. Brijbooken et al., Bom. Sel. Ca.
p. 1. But according to Vijnanesvara, "it is a mere error to say that the wife
takes nothing but a subsistence from the wealth of her husband (who died
leaving no issue), and though she cannot demand a partition, she is, when a
partition is made by the sons, entitled as their father's widow to a share equal
to one of theirs, as his unmarried daughter to one-fourth of a share," Mit.,
Chap. I., sec. 7 (Stokes's H. L. B. 397), Chap. II., sec. 1, pi. 31 (Stokes's
H. L. B. 436). See below. Eights and Duties arising on Partition; Lalljeet
Singh v. Raj Coomar Singh, 12 B. L. E. 373, 383; Jodoonath Dey Sircar et al.
V. Brojonath Dey Sircar et al. ibid. 385 ; Ramappa Naiken v. Sithamal, I. L. E.
2 Mad. 182, 186. In the last case it is pointed out that according to the Smriti
Chandrika the share or portion allotted to a mother is not to be regarded
strictly as day a, seeing she had not an ownership in it before. See above,
p. 238. On partition each of the father's wives is entitled to a share equal
to that of a son (Ganesh v. Jewach, L. E. 31 I. A. 10; Sumrun v. Chunder,
I. L. E. 8 Cal. 17; Damodar v. Uttamram, I. L. E. 17 Bom. 271) which she
gets by virtue of her co-ownership with her husband in all the properties
belonging to him {Jamna v. Machul, 1. L. E. 2 All. 315). As partition
according to the Mitakshara is based upon pre-existing rights, her right to a
share comes into existence from the time of her marriage. She has been held
to this share even against the father's wishes in those cases in which she would
be entitled to a separate maintenance {Dular v. Dwarka, I. L. E. 32 Cal. 234).
In Madras she is only entitled to maintenance and not to a share. Whether
she takes it as her stridhan has already been dealt with.
In England the Court in dealing with a suit for partition will regard the
equitable rights of all persons interested in the estate, Rowlands v. Evans ^
30 Bea. 302; Davis v. Turvey, 32 ibid. 554.
SEPARATION, DISQUALIFICATIONS. 629
right of females to a share on partition is the necessity to secure
for them a certain provision, which otherwise might fail. In
Bengal it has been ruled (e) that the widow of a member of a
united family may claim a partition, the concession of which
rests in the discretion of the Court. There, however, the widow
of an undivided coparcener inherits his share (/), on failure of
sons, grandsons, and great-grandsons, though she has only the
life enjoyment of the property, except under special circum-
stances (^). Under the law of the Mitakshara she succeeds only
to a separated coparcener. Even in Bengal (h) it seems to have
been admitted that there were no reported decisions in favour of
the widow's right, though it had apparently been recognized in
numerous unreported cases. What is said in the same judgment
as a reason for decreeing partition, " Otherwise she would be
unable during her life to improve the heritage of her children,"
these children being daughters, implies the succession of the
daughters, who also, according to the Mitakshara law, would be
excluded in a united family. Their succession in Bengal would
rest on their being, in the event of their survival, the next heirs,
at the death of their mother, to her husband, their father.
§ 4 c. 6. Disqualifications for demanding a separation. — Dis-
qualifications to inherit operate equally to exclude from a share
on partition, and consequently, from the right to demand a
separation. The maintenance {i) of the excluded members must
be provided for (k).
According to Strange, Man. H. L. sec. 319, a person who has
fraudulently concealed a portion of the family property loses, on
discovery of such fraud, his right to a share. Sir T. Strange
(e) Soudaminey Dossee v. Jogesh Chunder Dutt et al., I. L. K. 2 Cal. 262;
Bimola v. Dangoo Kansaree, 19 W. E. 189. There is no ground for the exclu-
sion of a Hindu widow from a claim to partition, for, as the law now stands,
she may re-marry and have male issue. In Bombay a childless widow of a
Hindu was in Ram Joshi v. Lakshmihai, I. L. K. 1 Bom. 189, held competent
to enforce actual division of the family property when the share of her husband
had been ascertained, though not actually set apart in specie, after his
separation.
(/) Daya Bhaga, Chap. XI., sec. 1, pi. 19, 44, 56; Stokes's H. L. B. 308,
315, 320.
(g) Ihid. pi. 62; Stokes's H. L. B. 321.
(h) Pokhnarain et al. v. Musst. SeespJiool, 3 C. S. D. A. E. 114.
(t) See Book I., pp. 141, 241, and Digest of Vyavasthas, pp. 541, 543.
(k) See below, "Liabilities."
630 HINDU LAW. [BOOK II.
also, in H. L. Vol. 1, p. 232, seems to be of opinion that the
Mitakshara, Chap. I., sec. 2, paras. 4, 5, and 12 (i), agrees with
this rule, which is certainly laid down by Manu, IX. 213. But
with regard to the Mitakshara, it would seem that the paras.
4 — 12 do not refer to the loss of the right to a share in case of
fraud practised by a co-sharer, but to the criminality of the act
only. The author first states the positive rules regarding the
treatment of fraudulently concealed and recovered property in
paras 1 — 3, and then he goes on to combat the opinion held by
some Hindu lawyers, that such a concealment of property by a
coparcener is not criminal. He is forced to do this, because the
text of Yajnavalkya does not touch on the point, and, for the same
reason, he is also forced to base his arguments on the verse of
Manu (para. 5), though the doctrine contained in the latter is
partly at variance with his own. The argument of the Mitak-
shara has been understood in this manner by Mitramisra also,
who, after repeating the substance of Mitakshara, loc. cii., paras.
1—12, adds: (m)
" But the co-sharers ought not to inform the king, (if fraud has been com-
mitted by one of them). But even if an information has been laid, he (the
king) ought to cause it to be restored by kind exhortations and the like. For
Katyayana gives a rule, the manifest object of which is to enjoin that kindness
only ought to be used, saying : — ' He (the king) shall never use force to cause
the restoration of property taken away by a relation.' "
Hence it appears that, aceording to the authorities prevailing
in the Bombay Presidency, a co-sharer, practising fraud, does
not lose his right to a share. The same has been held also by the
Mad. S. A. in C. Lutchmeedavee v. Narasimmah {n), and is recog-
nized as law by the Smriti Chandrika, Chap. XIV., para. 4 ss,
and by Jagannatha in Col., Dig. Book V., Commentary on T. 376,
and on T. 378 ad fin (o). Compensation may be taken in a
partition for flagrant malversation (p).
§ 4 D. Will to effect a separation. — The will of the united
coparceners to effect a separation may be
1. Stated explicitly; 2. 0?' implied.
(l) Stokes's H. L. B. 377, 380.
(m) Viramitrodaya, f. 220, p. 2, 1. 4, Transl. p. 247.
in) Eeports for 1858, p. 118.
(o) The Sarasvati Vilasa, sec. 784, is to the same effect. See the corrections
at the end of the translation of that work,
(p) See below, sec. 7; Steele, L. C. 212.
SEPARATION BY EXPRESS WILL. 631
1. As to express will, it may be evidenced by documents {q),
or by declarations before witnesses (r). In some of the older
cases, it was held that the execution of a deed by the coparceners
and a distribution in specie were not merely evidence of a parti-
tion, but were essential to make it valid (s). But this doctrine
has, for some time, been abandoned, and it is now recognized,
that all which would be evidence of an assent or expression of
will in other cases would be equally so in a case of partition (t),
iq) Borr. Col. Lith. 39, 83, 100; Steele, L. E. 220, 221. Balkishen v. Ram
Narain, L. E. 30 I. A. 139; Parhati v. Naunihal Singh, L. E. 36 I. A. 71;
Maharaja Ram Kissen v. Sheonandan Singh, 23 W. E. 412, P.O. ; Baboo Doorga
Persad v. Kundun Koowar, L. E. 1 I. A. 58 ; S. C. 13 Beng. L. E. 235.
(r) A partition deed, as it requires registration, is inadmissible in evidence
unregistered. Unregistered partition may, however, be proved by other evidence,
Govindaya v. Kodsur Venkapa Hegde, Bom. H. C. P. J. F. for 1880, p. 210;
Kachuhhai bin Gulabshand v. Krishnabai, I. L. E. 2 Bom. 635. See Act III.
of 1877, sees. 17 and 50, and the cases Burjorji v. Muncherji, I. L. E. 5 Bom.
143 ; Ramasami v. Ramasami, I. L. E. 5 Mad. 115.
A family arrangement with respect to the estate must be given effect to when
proved, Mantappa v. Buswuntrao, 14 M. I. A. 24.
(s) A farikhat or deed of mutual release has in several replies of the Sastris,
as those below, Book II,, Vyav., Chap. IV., been thought essential to the com-
pleteness of a partition. See Ooomedchund v. Gungadhar, 3 Morr. 108. It
was required by the custom of many castes, see Steele, L. C. pp. 213, 214.
Similar answers were given in some instances to Borradaile's questions.
Generally, however, it was deemed only one of the means of proof important on
account of its formality, see Steele, L. C. 56, 214, and could be replaced by
separate residence and enjoyment of shares, ibid. 215 (art. LXII.).
In Madras the mere execution of releases seems to have been thought insuffi-
cient without a corresponding severance of actual possession, see Nagappa v.
Mudundee, M. S. D. A., Dec, for 1853, p. 125; Kuppanmaul v. Panchanadai-
yane, M. S. D. A., Dec, for 1859, p. 263. But when the intention is clear
neither the other cases cited nor the original texts exact a physical division for
a severance of interests. A father's deed of partition was held inoperative as
not having been acted on, but it may have been thought that without action
a unilateral expression of will was incomplete, Bhowanny churn v. Heirs of
Ramkannt Binshoojea, 2 C. S. D. A. E. 202. On the other hand, a quiescent
enjoyment of a particular portion of the once united estate for 19 years was
held to imply assent to a partition assigning that partion to the holder of it,
Linga Mulloo Pttchama v. Linga Mulloo Gonappah, M. S. D. A., Dec, for
1859, p. 84; and generally a partition in fact is as binding as one by express
agreement. Doe dem Gocalchandar Mitter v. Tarrachurn Mitter, 1 Fult. 132;
i.e., it may be proved by oral testimony and the conduct of the parties implying
separation.
(t) Rungama v. Atchama et al., 4 M. I. A., at p. 68; Mantena Rayaparaj
V. Chekuri Venkataraj, 1 M. H. C. E. 100; Appovier v. Rama Subha Aiyan
632 HINDU LAW. [BOOK II.
and that the expression of will, whether immediate or implied, is
the sole criterion of division (v). This has been carried so far,
that, where a partition had been planned and agreed to by copar-
ceners, but not actually effected, the widow of one of the co-
parceners, who died in the meantime, was allowed to recover the
et al, 11 M. I. A. 75 ; Pandit Suraj Narain v. Ikhal Narain, L. K. 40 I. A. 40;
Brijraj v. Sheodan, ibid. 161; Kewal v. Parhhu, L. K. 44 I. A. 159. Partition,
not by metes and bounds, may yet be effectual. So R. S. Venkata Gopala
Narasimha Row v. R. S. Lakshama Venkama Row, 13 M. I. A., at p. 139.
See also Mit., Chap. I., sec. 9, para. 1 (Stokes's H. L. B. 404) ; May., Chap. IV.,
sec. 3, para. 2, quoted in a corrected translation under Book II., Digest of Vya-
vasthas. Chap. III., sec. 3, Q. 5. In the case oi R. S. Lakshma Venkama Row
V. R. S. Venkata Gopala Narasimha Row, 3 M. H. C. K. 40, and in Timama
Kom Timapa v. Amchimani Parmaya, S. A. No. 452 of 1874, Bom. H. C. P.
J. F. for 1875, p. 257, an agreement to be separate was held to constitute a
separation. Indeed " the question, in every particular case, must be one of
intention, whether the intention of the parties, to be inferred from the instru-
ments they have executed and the acts they have done, was to effect such a
division"; Doorga Pershad et al. v. Musst. Kundun Koowar, 21 W. R. 214;
S. C. 13 B. L. E. 235. Rewun Persad v. Musst. Radha Beeby, 4 M. I. A. 137,
recognized a partition by mere agreement as good, though made during sub-
sistence of a life-estate. In the case of Roopchund v. PJwolchund et al., at 2
Borr. 670, the Zilla Judge found that there had been no writing executed, but
" that the brothers perfectly understood that certain parts were the share of
each." The law ofi&cer and the Sudder Court held this sufficient to constitute a
partition. In Musst. Bannoo v. Kasheeram, I. L. R. 3 Cal. 315, the Judicial
Committee drew an inference in favour of partition from a petition by a
member of a family asking that his name might be entered as owner of a
moiety of land purchased by his father and his uncle out of joint hereditary
funds.
Where, though there has not been an actual distribution in specie, the shares
have been ascertained and an agreement made to hold in severalty, the former
co-sharer is of course unfettered as to the disposal of his own portion, Hurdwar
Singh et al. v. Luchmun Sinch et al., 4 Agra H. C. R. 42.
But a mere definition of a parcener's interest, in terms of a fraction of the
whole, does not, it has been said, itself constitute a legal separation, Musst.
Phooljhuree Kooer v. Ram Pershun Singh et al., 17 W. R. 102, C. R. So
also Ambika Dat v. Sukhmani Kuar et al., I. L. R. 1 All. 437, referred to
below under sec. 4 D 2 d. Comp. the cases below, p. 633.
In Devapa Mahabala v. Ganapaya Annaya et al., S. A. No. 125 of 1877,
Bom. H. C. P. J. F. for 1877, p. 194, an oral agreement for partition having
been made, one of the dividing coparceners, who subsequently received no part
of the rents for more than 12 years, was then held barred, notwithstanding
Art. 127 of Sch. II. of Act IX. of 1871, as the property from the time of the
agreement ceased to be joint.
(v) Pandit Suraj Narain v. Ikbal Narain, L. R. 40 I. A. 40; Girjabai v.
Sadasiv, L. R. 43 I. A. 151 ; Kewal v. Parbhu, L. R. 44 I. A. 159.
SEPARATION, EXPRESS AND IMPLIED. 633
share allotted to her deceased husband (iv). But there must be
an actual severance of interests. An inchoate partition does not
alter the rights of the co-sharers (x). In Kadapu et al. v.
Adrashapa (y), of two co-sharers suing a third for partition, one
died ; the remaining plaintiff insisted on his right to two -thirds as
united with the deceased and virtually separated from the defen-
dant by the institution of a suit, but the Court awarded him only
a moiety of the joint estate (z).
In a suit not in terms for a partition, but seeking a distinct
share, a decree awarding a separate interest destroys the joint
estate according to the doctrine of Appovier v. Rama Suhha
Aiyan (a). In Babaji Pareshram v. Ramchandra Anunta (b), it
was held that a decree declaring mortgagors divided, not carried
out pending appeal by mortgagee, during which pendency one
mortgagor died, had not effected a partition. This decision, rest-
ing on Prankissen's Case, must be compared now with that of the
Privy Council in Chidambaram Chettiar v. Gouri Nachiar (c).
There had in that case been an adjudication that the plaintiff was
entitled to a moiety of the joint estate, but it did not appear that
(w) Ram Joshi v. Lakshmibai, 1 Bom. H. C. E. 189; Appovier v. Rama
Subba Aiyan et al, 8 C. W. R. 1. P. C, S. C, 11 M. I. A. 95. But see also
Sheo Dyal Tewaree v. Judoonath Teware et al., 9 C. W. R. 62 C. R. as to (1)
definition, (2) distinct enjoyment; and Timma Reddy v. Achamma, 2 Mad.
H. C. 325; Bai Suraj v. Desai Harlochandas, B. H. C. P. J. 1881, p. 123.
Tenants to three brothers, after a division amongst their landlords paid one of
them his share of the rent, but on his death paid it to the surviving brother.
The widow of the deceased recovered as heir to her husband in a suit for this
share of the rent against the tenants, Rakhmahai v. Bayaje, S. A. 172 of 1874,
Bom. H. C. P. J. 1874, p. 289.
(x) Prawnkissen Mitten v. Shreemutty Ramsoondry Dossee, 1 Fult. 110.
(y) R. A. No. 30 of 1874, Bom. H. C. P. J. F. for 1875, p. 182.
(z) The same principle, as to an adjustment of shares in ancestral property,
caused by the death of a coparcener before actual partition, was adopted in
Duljeet Sing v. Sheomunook Sing, 1 Beng. S. D. A. R. 59, wherein the eldest
of three undivided brothers having died leaving behind him a son, and the
second without issue, the son of the eldest brother and the surviving brother
were awarded each half a share in the property. In Gungoo Mull v. Bunseedhur,
1 N. W. P. R. for 1869, p. 79, a coparcener was held entitled, during his
father's lifetime, to bring a suit to assert his right in the share which the
father inherited from his deceased brother. See also sec. 5 A, 1 a, below.
(a) 11 M. I. A. 75 ; Joy Narain Giri v. Girish Chandru Myti, L. R. 5 I. A.
228; see Book II., Digest of Vayavasthas, Chap. III., sec. 3, Q. 7.
(6) P. J. 1879, p. 535.
(c) L. R. 6 I. A. 177.
634 HINDU LAW. [BOOK II.
a decree had been drawn up. Still their Lordships held that the
judgment was " equivalent to a declaratory decree declaring that
there was to be a partition of the estate into moieties and making
the brothers separate in estate from that date," so as to bring
the case within the principle of Appovier v. Rama Suhha
Ay ana (d). In the same case, however, between the same parties,
a decree for partition appealed against is suspended as to its
definitive operation on the relative rights disposed of by it, and is
subject to decree in appeal, which has regard to the state of facts
existing at its own date (e).
An agreement to divide certain lands still to be recovered was
held, in RamabaiY. Jogan Sooryhhan et al. (/), not to constitute a
severance of interest. Until recovered, the property would, it
was ruled, continue joint estate. So property under mortgage
may, when redeemed, be open to partition {g).
By some of the Hindu lawyers a separation such as to give one
or more members their several shares is regarded as necessarily
involving a general partition (h). Those who have not separated
are on this theory looked on as reunited, see Col. Big., Book
v. T. 433 suh. fin., and the Mit., Chap. I., sec. 6, paras. 1, 7,
where it is assumed that in a partition under Mit., Chap. I.,
sec. 2, para. 1, all the sons have become separated though some
may have reunited with the father; see also Manu. IX., 212.
Jagannatha does not adopt this view, and it involves perhaps a
certain confusion of thought as pointed out in the case above
(d) Under the English Law it was held that a decree for sale and division of
proceeds in a partition suit operated as a conversion of the estate even before
the sale, Arnold v. Dixon, L. E. 19 Eq. 113.
(e) Sakharam Mahadev Dange v. Hari Krishna Dange, I. L. K. 6 Bom. 113,
distinguishing Joy Narain Giri v. Girish Chunder Myti, I, L. R. 4 Cal. 434.
(/) S. A. No. 260 of 1871, Bom. H. C. P. J. F. for 1873, No. 35.
(g) Balkrishna v. Harishankar, 8 Bom. H. C. E. 64 A. C. J.
(h) Sham Narain et al. v. The Court of Wards, 20 C. W. E. 201 C. E.
Such a general partition might be supposed to be intended in Gopal Anant v.
Venkaji Narayan, Bom. H. C. P. J. F. for 1878, p. 13, though the plaintiff
was entitled to but one-fiftieth of the property. But the decree is, in its opera-
tive part, confined to the parties; and the ascertainment and declaration of all
the shares which the High Court directed the Subordinate Judge to make, would
not of itself constitute a partition where there was no mind amongst the
parceners to divide. See Gopal Anant Kamut v. Narayan Anant, Bom. H. C.
P. J. F. for 1878, pp. 13, 230, and same case, ibid. 1879, p. 370; Samatsang v.
Shivasangji, Bom. H. C. P. J. 1882, p. 404; Chidambaram Chettiar v. Gouri
Nachiar, I. L. E. 2 Mad. 83. Above, p. 632.
SEPARATION, EXPRESS AND IMPLIED. 635
quoted (f), but it rests also, probably, to some extent on the
general necessity, under the Hindu law, of seisin or possession to
validate any change of title (k), no ownership of any definite
share being predicable of a particular coparcener while united (l).
The Vivada Chintamani, p. 79, says that a division of the
property actually made into lots, but not completed by
distribution, raises no separate interests.
When a parcener has been excluded from joint family pro-
perty for twelve years, satisfactorily proved and shown to be
(t) Appovier v. Rama Suhha Aiyan et al., 11 M. I. A. 68.
(k) Tarachand v. Lakshman, I. L. K. 1 Bom., at p. 93; Lalluhhai Surchand
V. Bai Amrit, I. L. E. 2 Bom. 299. But registration serving as notice may
complete an ownership without physical possession, ibid. 332; Icharam Dayaram
V. Raiji Jaga, 11 Bom. H, C. K. 41, and prevents rights subsequently arising
which would be inconsistent with the one thus secured, Hasha v. Ragho, I. L. R.
6 Bom. 165. In Special Appeal 668 of 1881, followed in a recent case, Pemraj
Bhavaniram v. Narayam Shivram, I. L. R, 6 Bom. 215, it was ruled that in
the case of a gift, even to a son, actual transfer of possession was requisite to
complete the title of the donee. Registration, it was held, would not in such
a case supply the want of possession. In the case of 2 Str. H. L. 7, Cole-
brooke says that " no doubt a gift may be made to an absent person," but there
a delivery may have been contemplated to a person on account of the donee.
Under sec. 25 of the Indian Contract Act IX. of 1872, a gift to a son duly
registered would apparently bind the father and his representatives without
delivery of possession. Sec. 123 of the Transfer of Property Act, IV. of 1882,
provides for the completion of a gift either by registration of the instrument,
or in the case of movable property by delivery, but this Act is not yet
in force in Bombay, see above, p. 180. In Madras possession is not necessary
to complete a sale, Vasudeva Bhattu v. Narasamma, I. L. R. 5 Mad. 6.
The instrument was registered after the executant's death by his widow.
In Bai AmriVs Case, I. L. R. 2 Bom. 299, registration is pronounced generally
equivalent to possession. See the Transfer of Property Act, IV. of 1882,
sec. 54.
Possession obtained during the pendency of a suit gives the acquirer of it no
locus standi to resist the successful plaintiffs when the new possessor has
omitted to get himself made a defendant, S. B. Shringarpure v. S. B. Pethe,
I. L. R. 2 Bom, 662. See Radhahai kom Shrikrishna v. Shamrao Vinayak,
Bom. H. C. P. J. F. for 1881, p. 218.
A change of possession is not necessary to validate the transfer of a right
not exercised by possession, such as the reversion of a landlord, or an equity of
redemption in the case of a usufructuary mortgage. See Kachu v. Kachoba
above, and Lalluhhai Surchant v. Bai Amrit, I. L. R. 2 Bom., at pp. 325, 326;
Shripati v. Balvant, Bom. H. C. P. J. 1881, p. 221. But one who has gained
possession before the suit is a necessary party.
(I) Compare also above, pp. 564, 589, and see the case of Puree Jan Katoom
et al. V. Bykunt Chunder et al., 9 C. W. R. 483, C. R.
HINDU LAW. [BOOK II.
oontinuous and public and adequate to the circumstances of the
case (m), a suit on his part to enforce his right to a share is barred
by limitation (w). His right is extinguished. His ground for
a claim to partition is by this withdrawn, a partition having been
practically effected by the law in his favour as well as against
him, since exclusion implies mutual exclusion (o).
§ 4 D. 2. As to implied will, the Hindu authors are prolix in
their discussions of the circumstances from which separation or
union may be inferred (p). According to them the "signs" of
separation are :
a. The possession of separate shares.
(m) Jagjivandas v. Bai Amha, I. L. K. 25 Bom. 362.
(n) Act XV. of 1877, Sch. II., art 127, and sec. 28. The same limitation
applies to a claim to an hereditary office (art. 124), a periodical benefit (art. 131),
and possession due on the death of a female (art. 141).
(o) See above, p. 589. The adverse possession by which those who enjoy it
profit through limitation must be a possession incompatible with a recognition
of the alleged concurrent right. Thus non-participation in the general profits
of an estate is not an exclusion while the parcener holds certain lands in that
character, Pertahnarain v. Opindurnarain, 1 C. S. D. A. B. 225. Conversely an
enjoyment in the form of commensality bars limitation, Rajoneekant Milter v.
Premchand Bose, Marsh. E. 241. Mere non-participation in the profits was
held not to constitute a cause of action from which limitation could be counted
in Sheho Sundari Dasi v. Kali Churan Rav, C. W. R. for 1864, p. 296. So
Benud Naik v. Doorga Churn Naik, 1 C. W. R. 74. In Chaghanlal v. Bapuhhai,
Bom. H. C. P. J. 1880, p. 123, it was held that where a degree for a share of a
vatan had been made in favour of a plaintiff he was not barred by the lapse of
more than twelve years from recovering arrears due on account of such share.
This may possibly be open to question, as the bar of limitation shuts out any
consideration of the validity of the title thus barred, and the possession pre-
viously adverse, and as such made a cause of action, did not become less
adverse through a decree against the possessor. Where, on the other hand,
possession has begun under a title or in the exercise of a right implying the
existence of another superior to itself, or concurrent with itself, the mere con-
tinuance of such possession does not constitute an exclusion. There must be
some act contradictory of the right known to the person affected to impose on
him the necessity of taking any step for the assertion of the right. See Ind.
Evidence Act, I. of 1872, sees. 114, 110; Lim. Act, XV. of 1877, Sch. II.,
art. 127; Dadoha v. Krishna, I. L. R. 7 Bom. 34; and comp. Burge, Com.
Vol. III., pp. 13, 14; Domat. Ci. L. Vol. I. 886; Board v. Board, L. R. 9 Q. B.
48; Williams v. Pott, L. R. 12 E. Ca. 149.
(p) Mit., Chap II., sec. 12; Stokes's H. L. B. 466-7; May., Chap. IV.,
sec. 7, paras. 27—35; Stokes's H. L. B. 80—82.
SEPARATION, IMPLIED. 637
h. Living and dining apart.
c. Commission of acts incompatible with a state of union, such
as trading with or lending money to each other, or separately to
third parties, mutual gifts or suretyship. They add also giving
evidence for each other, but from this in the present day no
inference can be deduced (q).
The burden lies on a member, asserting that his acquisition of
property has been made subsequently to a partition, of proving
that it was not required as part of the joint estate (?). In other
words, if he sets up a partition at a particular time or prior to
particular transactions he must prove as he has averred it.
d. The separate performance of religious ceremonies, i.e. of
the daily Vaisvadeva, or food-oblation in the fire preceding the
morning meal; of the Naivedya, or food-oblation placed before
the tutelary deity; of the two daily morning and evening burnt-
(q) "A writing attested by them (kinsmen) is the best proof; on failure of
that, one attested by other witnesses; faihng that, mere oral testimony; and
lastly, evidence of separate acts. Such is the order of proof." Jagannatha,
in Col. Dig., Book V., T. 381. Narada, Pt. II., Chap. XIII., para. 36, cited by
Vyav. May., says, (1) evidence of kinsmen, (2) documentary proof, (3) separate
transaction of affairs. Vyav. May., Chap. IV., sec. 7, p. 27; Stokes's H. L. B.
80. Nilakantha adds separate possession of house and field, and so Vijnanes-
vara, Mit., Chap. II., sec. 12, Stokes's H. L. B. 466-7.
Under the English law a severance of a joint tenancy is caused by a course
of dealing which implies such severance amongst the parties to such dealing.
See Williams v. Hensman, 1 J. & H. 546, and a similar principle seems to be
involved in Ujamsi v. Bai Suraj, Bom. H. C. P. J. 1881, p. 66. In RamchunduT
Dutt V. Chundar Coomar Mundul, 13 M. I. A., at p. 198, it seems to have been
thought that a mere alienation of a share to a stranger would bring the relation
of the parcener as a member of a joint family to an end, and make the alienee
a co-owner with the other parceners. A sale by a joint tenant in England
severs the joint-tenancy, but in India it is either ineffectual under the strict
Hindu law or it gives to the purchaser a right only to have the transaction
made good so far as is equitable by means of a partition. See above,
pp. 563 88.
(r) Musst. Anundee Koonwur v. Khedoo Lai, 14 M. I. A. 412; see also Rewan
Persad v. Musst. Radha Beehy, 4 M. I. A. 137; Moti Mulji v. Jamnadas Mulji
et al., S. A. No. 77 of 1877, Bom. H. C. P. J. F. for 1877, p. 123. As there
may be separate property without a division of the united family, the question
is perhaps still more frequent of whether particular property of an undivided
coparcener is to rank as joint or as separate property. For such cases see
below, sec. 5. A.
638 HINDU LAW. [BOOK II.
offerings; of the Sraddhas (s) or funeral oblations to the parents'
manes, &c. {t).
None of these signs of separation can be regarded as by itself
conclusive. Living and dining apart, on which the Sastris appear
to set great value, may justify an inference that separation has
taken place, but it is not conclusive of the fact, since many co-
parceners live and dine apart, sometimes in the same village or
house, for the sake of convenience. Other reasons too may neces-
sitate the same arrangement, e.g. Government service t^ken by
one or more of the coparceners. The Privy Council indeed have
said that cesser of commensality is strong, but not conclusive.,
evidence of partition (v). What is required is the division of the
estate, which when once effected cannot be altered by the subse-
quent conduct of the parties (w).
The separate performance of the Vaisvadeva sacrifice, of
Sraddhas and other religious rites is still less conclusive. In
Book IL, Digest of Vyavasthas, Chap. IV., Q. 4, a passageof Bhat-
tojidikshita is quoted, according to which coparceners, hving
apart, may or may not perform the Vaisvadeva each for himself,
and, in the present condition of Hindu society, the performance
of all religious rites has become so lax and irregular as to afford
no safe ground for inference (x). Separate contracts, entered
into by coparceners mutually or with third parties, constitute,
according to 1 Macn. H. L. 54 and 1 Str. H. L., p. 225—227, the
most certain evidence of a partition. But even these raise no
(s) On the Sraddhas see H. H. Wilson, Works, VIII. 113; Col. Essays,
vol. n., p. 180 ff. At p. 196 reference is made to the enumeration in the
Nirnaya Sindhu. On the Vaisvadeva, ibid., pp. 203, 307, and Journ B. E. A.
Soc., vol. XV., p. 263. Comp. Mommsen, Hist, of Rome, vol. I., pp. 173, 174,
for the Roman domestic sacrifices. See also the Tagore Lectures for 1880,
Lee. I.
{t) See Colebrooke and Ellis at 2 Str. H. L. 392.
(v) Anundee Koonwar et al. v. Khedoo Lai. 18 C. W. R. 69 C. R., S. C.
14 M. I. A. 412; and as to separate residence, see Vinayek Lakshman et al.
V. Chimnahai, R. A. No. 44 of 1876, Bom. H. C. P. J. F. for 1877, p. 170;
Sheshapa v. Igapa bin Surapa, R. A. No. 12 of 1873, ibid, for 1875, p. 37.
(to) Balkishen v. Ram Narain, L. R. 30 I. A. 139.
(x) "When brothers living apart separately perform the daily ceremonies of
Naivedya and Vaisvadeva and have separate house and other property, they
may be considered separated." Q. 685, Poona, 17th August, 1849, MS.
Although three brothers may have had undivided family property some prima
facie improbability of their continuing joint arises from their respectively
carrying on the profession of pleaders in three different places, Bhagirthibai v.
Sadashivrav, Bom. H. C. P. J. 1880, p. 126.
SEPARATION, IMPLIED. 639
conclusive presumption per se, since it is consistent with a condi-
tion of union, that a coparcener should, concurrently, possess
separate property (avibhajya), which imphes separate transac-
tions (y). As no one of the marks of partition above enumerated
can be considered conclusive, so neither can it be said that any
particular assemblage of these alone will prove partition. It is in
every case a question of fact to be determined like other ques-
tions of fact, upon the whole of the evidence adduced, circum-
stantial evidence being sufficient, as distinctly admitted indeed
by Brihaspati (z). This principle has been followed by the Privy
Council in Reivan Prasad v. Radha Bibi and in other cases, and,
in effect, supersedes the artificial rules of the Hindu Law (a) —
rules, as Jagannatha points out (Col. Big., Book V., T. 389,
Comm. ad fin.), drawn from texts " founded on reason, not reve-
lation, leaving room for the admission of presumptive proof " (b).
(t/) Separate trading and separate acquisition are not proof of partition,
Vedavalli v. Narayana, I. L. E. 2 Mad. 19.
(z) See Dayabhaga, Chap. XIV., p. 8; Stokes's H. L. B. 362; see also
Borr. Col. Lith. 264; Mor. Dig., Partition, pp. 484, 485; 2 Macn. H. L. 162;
Ruvee Bhudr v. Roopshunker, 2 Borr. 713 ; Sheshapa et al. v. Igapa hin Surapa,
E. A. No. 12 of 1873, Bom. H. C. P. J. F. for 1875, p. 37.
(a) In Lalla Mohaheer Pershad et al. v. Musst. Kundun Koowar, 8 C. W. E.
116 C. E. there is a case of a coparcenary converted by agreement into a simple
mercantile partnership, in a judgment, affirmed by the Privy Council, Doorga
Pershad et al. v. Musst. Kundun Koowar, 21 C. W. E. 214 ; S. C, L. E. 1 I. A.
55. See Dayabhaga, Chap. XI., sec. 1, p. 30; Stokes's H. L. B. 311; Str.
H. L. 395. Separation for fifty years was pronounced proof of a partition. See
below, page 640.
(b) In his essay "On the Deficiencies," &c., the late Prof. Goldstiicker
objected to what he called " the summary rejection as legal proof of all and
each of the signs of separation." If by "legal proof" the Professor meant
evidence forming a fit ground for inference, he went much beyond the statement
he was criticizing. If by " legal proof " he meant " conclusive proof," then
the criticism is unfair only in substituting " the rejection of all and each," for
a denial that any particular group of signs can, apart from its logically evidential
weight, be conclusive. Jagannatha, in Col. Dig., after a discussion of the
various signs of partition, which shows that they have severally a probative
but not a conclusive force, winds up by saying : " The texts are founded on
reason, and the several arguments on each being equal, presumptive proof may
be admitted on failure of written and oral evidence," Book V., Chap. VI.
ad fin. In the same sense Mitramisra says of the several indications enumerated
by Narada, "It is not to be supposed that the inference arises only when all
these jointly subsist ; the intention is that the inference arises from all or some
of them, the text being based on reason," Viram. 262. On the difference
between actual proof and a mere " Adyuharana'' (i.e., Ud-aharana) or indica-
tion, see the remark of Ellis, 2 Str. H. L. 392, who, at p. 398, says that the
640 HINDU LAW. [BOOK II.
On the other hand, from the separate possession, by individual
members of a family, of portions of the property once held in
common, a presumption, though not an indisputable presump-
tion, of partition arises (c). This presumption is strengthened by
length of time, and Narada, Pt. II. Chap. XIII. si. 41 (d) states,
that a continuous separation for ten years is a proof of partition.
This ver&e is quoted in the Smriti Chandrika, Chap. XVI., as from
Katyayana; and in the Sarasvati Vilasa, sees. 34, 811, as from
the same source. In the latter work there is a long discussion
of the means of proof of partition ending with a statement that
where there is positive direct evidence, that is to be relied on ; in
its absence efficient causes, such as transactions which involve
separateness of interests inconsistent with a continued union;
and finally what are called memorial causes, as the separate per-
formance of religious ceremonies, which, continued for a period
weight to be given to such tokens is " one of the many points reserved by the
Hindu Law for equitable judgment." In Amhika Dat v. Sukhmani Kuar et aZ.,
I. L. K. 1 All. 437, a definition of shares, separate entries of the parceners'
names as owners of those shares in the Government records, and the substitu-
tion on their deaths of their respective sons' names, were held insufficient, in
the absence of evidence of separate enjoyment of profits, to prove partition.
This is perhaps an extreme case, reference being made to Appovier v. Rama
Suhha Aiyan, 11 M. I. A., at p. 89, and to the separate contracts with the
Government constituted by the separate entries of the parceners' names for
several shares ; but on the whole evidence the Court thought the intention to
divide must have been abandoned. See R. S. Venkata Gopala Narasimha v.
R. S. Lakshmi Venkama Roy, 3 Beng. L. K. 41 P. C. ; Bahoo Doorga Pershad
v. Musst. Kundun Koowar, L, R. II. A., at p. 70; Pragdas v. Kishen, I. L. E.
1 All. 503. (c) See above, pp. 631, 638.
(d) A various reading of Narada, Part II., Chap. XIII., si. 36, gives " bhoga
Zefe/it/ena " = " by enjoyment or record," instead of '' hhaga lekhyena''
= " record of division." See Col. Mit., Chap. II., sec. 12, p. 3 note, Stokes's
H. L. B. 467, and the case of Bharangowda v. Sivangowda et al., S. A. No.
356 of 1873, Bom. H. C. P. J. F. for 1874, p. 184. Ten years is the period
prescribed by Manu (Chap. VIII. 148) as that by which ownership is lost
through adverse possession, but his rule does not give a prescriptive title to
encroachments on land, or to public property, that of an infant, a pledge or a
deposit (VIII. 149). Gautama also (Chap. XII., para. 37) gives ten years as
the period of prescription except in favour of Srotriyas, ascetics and Govern-
ment officers ; but he excludes land as well as females and animals from the rule.
That the right to land was widely regarded as imprescriptible in the customary
law has been shown above, p. 174; see too below, sec. 5 B. Why female slaves
should have been excepted from the general rule is less easy to explain, perhaps
because of the more positive identification possible in their cases than in those
of ordinary chattels. Yajnavalkya, II. 24, assigns twenty years for land and
ten years for movables. See Lalubhai Surchand v. Bai Amrit, I. L. E. 2 Bom.,
at p. 307 ss.
SEPARATION, IMPLIED. 641
of ten years, become effective in producing separation. This-
seems but another way of saying that a presumption, weak at
first, grows in strength with a repetition or continuance of the
facts that give rise to it, until it becomes conclusive.
The fact that certain portions are admittedly held in severalty
does not, it has been said, rebut the presumption of non-partition
as to the rest of the family property (e), and separate enjoyment
merely as a matter of arrangement for the convenience of the
family will not constitute partition (/). This is the normal con-
dition of a Khoti estate in Ratnagiri, and will not prove a partition as
intended to be permanent, as held in Bahashet v. Jiishet {g). This
last decision must, so far as it extends, qualify the rulings in
Musst. Mohroo Kooeree v. Musst. Gunsoo Kooeree et al. (k),
Shih Narain Bose v. Ram Nidhee Bose et al. (i), and the old case
of Ruvee Bhudr v. Roopshunkur Shunkurjee et al. (k), in which
separate collections, and even a division of the income derived
from a village, were held to be sufficient proofs of a partition.
Even if, for common convenience, the parties took the profits
of an estate in certain defined shares, still it would not be conclu-
sive evidence of a separation (l). Nor would false statements made
by the parties for their common benefit (m). In Sonatun Bysack
V. Sreemuttij Jugatsoondree Dossee (n) the Privy Council say,
" Their Lordships are very clearly of opinion that the mere division
of income for the convenience probably of the different members
of the family did not amount to a division of the family." So as
to mortgaged property redeemed by one member and then held by
him exclusively for 20 years (o). In a recent case it was held that
(e) Sreeram Ghose et al. v. Sreenath Dutt Chowdhry et al., 7 C. W. K.
461 C. E.
(/) Musst. Josoda Koonwur v. Gowrie Byjonath Sohaesing, 6 C. W. E.
144 C. E.
(fif) 5 Bom. H. C. E. 71 A. C. J.
(h) 8 C. W. E. 386 C. E.
(i) 9 ibid. 88.
ik) 2 Borr. 713.
(l) Hariparsad v. Bapuji Kirpashankar , S. A. No. 150 of 1872, Bom.
H. C. P. J. F. for 1872, No. 134; Vinayek Lakshman et al. v. Chimnabai,
E. A. No. 44 of 1876, ibid, for 1877, p. 170; Sakho Narayan v. Narayan
Bhikhaji, 6 Bom. H. C. E. 238 A. C. J.
(m) Musst. Phooljhuree Kooer v. Ram Pershun Singh et al., 17 W. E. 102
C. E.
in) 8 M. I. A., at p. 86.
(o) Balu bin Bapurao v. Narayen Bhivrav, P. J. 1874, p. 132.
H.L. 41
642 HINDU LAW. [BOOK II.
a decree, which had on an agreement between the co-owners
awarded to the one two-fifths and to the other three-fifths of a
village, was not to be deemed an adjudication of partition in a
subsequent suit between the representatives of the parties (p). If
it effected a severance of the rights it would apparently constitute
a partition, but not if it merely defined the proportions of the
interests (q).
Where there had been a really exclusive enjoyment of any por-
tion of the patrimony, a suit would, it was said, ordinarily be
barred by the Limitation Act, XIV. of 1859, sec. I., para. 13,
after the lapse of twelve years (r), and as to the general principle,
it would seem that the older Bombay decision was more strictly
in accordance than the recent ones with the Hindu Law as viewed
by the Indian commentators. A division of the proceeds is a
recognized mode of distribution of the family property, see below,
sec. 7; and in the case of Somangouda v. Bharmangouda (s), it
was held that where a plaintiff admitted having had separate pos-
session for sixteen years of a portion of the ancestral estate, it lay
on him to prove that the family had remained undivided (t).
(p) Samatsang v. Shivasangji and Ramsangji, Bom. H. C. P. J. 1882, p. 404.
iq) Jay Narayan Giri v. Girishchundar Myti, I. L. B. 4 Cal. 434. See the
cases referred to above, and sec. 7 A 1 b below. It may be doubted whether
this refinement would be admitted by a purely Hindu lawyer taking his stand
on the principles stated in Rama Suhayanna's Case.
(r) Umhika Churn Shet v. Bhuggohutty Churn Shet at al., 3 C. W. K.
173 C. E. ; Vidyashankar et al. v. Ganpatram, S. A. No. 260 of 1873, Bom.
H. C. P. J. F. for 1875, p. 351; Shidojirav v. Naikojirav, 10 Bom. H. C. E. 228,
wherein it was held that the period during which the property was under attach-
ment by Government, and during which neither party was in possession, is
excluded from the operation of the Limitation Act (now Act XV. of 1877).
(s) 1 Bom. H. C. E. 43.
(t) The separate possession being prima facie an exclusive possession as
owner (In. Ev. Act, I. of 1872, sec. 110; Keval v. Vishnu, Bom. H. C. P. J.
1875, p. 368). It does not appear that the Hindu, like the Eoman, lawyers
elaborated any very clear theory of possession, distinct from proprietorship, as
itself conferring rights. In the Vyavahara Mayukha, Chap. II., sec. 2 (Stokes's
H. L. B. 31), possession is regarded merely as a means of proof, comparatively
valueless without a title otherwise established. A law of prescription, however,
is distinctly recognized, (Col. Dig., Book I. T. 113; Book V. T. 395, 396,)
defined for the Bombay Presidency by Beg. V. of 1827 ; and in the case of con-
flicting titles possession gives him who holds it the preference. Col. Dig.,
Book I. T. 128 sqq. In the case of Rajah Pedda Vencatapa v. Aroovala
Roodrapa Naidoo, 2 M. I. A. 504, it is laid down that " the title of possession
must prevail until a good title is shown to the contrary." This is an adoption
SEPARATION, IMPLIED. 643
Exclusive possession for thirty years affords conclusive proof of
of the English law, the doctrine of which on this point, as Sir T. Strange
(1 H. L. 38) observes, is substantially the same as that of the Hindu Law.
See to the same effect Pemraj v. Narayan, I. L. R. 6 Bom. 215.
The Hindu law generally requires in the case of material property a transfer
of possession to complete a change of ownership. Yajn. II. 27; Narada, Pt. I.,
Chap. IV., paras. 4, 5 : but a right of entry or redemption may as such be
transferred by mere contract, see Bat Suraj v. Dalpatram, 1. L. R. 6 Bom. 380,
referring to Raja Saheb Prahlad Sen v. Bahoo Budhusing, 12 M. I, A. 276, 307;
Mathews et al. v. Girdharlal Fatechand, 7 Bom. H. C. E. 4 0. C. J. ; Kachu
V. Kachoba, 10 Bom. H. C. R. 491; Vasudev Hari v. Tatia Narayan, 1. L. R.
6 Bom. 387 ; and the cases cited in Lakshmandas v. Dasrat, 1. L. R. 6 Bom. 175.
In the last case the effect of non-possession and of registration in many different
cases is discussed by Sir M. Westropp, C.J. See also Lalubhai v. Bai Amrit,
I. L. R. 2 Bom. 299, 331, 332. In Sohhagchand v. Bhaichand, I. L. R. 6 Bom.
193, the effect of purchase at a sale in execution of property already equitably
charged is considered.
Under the older English law transfer of possession was as necessary as
under the Hindu law for a change of the right in re; see Bl. Com., Book II.,
Chaps. X., XX. Butler's note to Co. Lit. 330 b.
Possession giving a preference to the mortgagee having it over one without
it is suflficiently acquired by a bona fide attornment of the mortgagor as tenant
to the mortgagee, Anunt Bapu v. Arjun Gondu, P. J. 1880, p. 293. The
possession requisite to perfect a title may be acquired notwithstanding an
irregularity in taking it, Lillu v. Annaji, 1. L. R. 5 Bom. 387. The mort-
gagee's possession continued after payment of the mortgage debt does not
necessarily become adverse, Babla v. Vishnu Ballal Thakur, Bom. H. C. P. J. F.
of 1880, p. 294; Comp. Steele, L. C. 72; and on Pledges, pp. 251 ss.
As to possessory actions there have been very conflicting decisions. Compare
Khajah Enaetoollah v. Kishen Soondur et al., 8 C. W. R. 386 C. R., with
Musst. Tukroonissa Begum et al. v. Musst. Mogul Jan Bebee, 8 ibid., p. 370;
Kalee Chunder Sein et al. v. Adoo Shaikh et al., 9 C. W. R. 602 C. R. ; and
Kunbi Komapen Kurupu v. Changarachan Kandil, 2 M. H. C. R. 313; and
see also Radha Bullub Gossain et al. v. Kishen Govind Gossain, 9 C. W. R.,
71 C. R. ; and George Clarke v. Bindavun Chunder Sircar et al., C. W. R.
Special Number, p. 20. The Specific Relief Act, I. of 1877, sec. 9, gives a
summary remedy to one dispossessed illegally, see Sayaji v. Ramji, I. L. R.
5 Bom. 446. A jurisdiction in such cases is given to Mamlatdars by Bombay
Act, III. of 1876. The present Limitation Act is Act XV. of 1877.
The relations of different parties concerned in a dispossession are discussed
in Virjivandas v. Mahomed Ali Khan, I. L. R. 5 Bom. 208. A possession
acquired permissively or by tenancy does not become adverse by mere non-
payment of rent for more than twelve years. It must have become distinctly
adverse and remained so for twelve years, in order that a claim for recovery
may be barred. See the Limitation Act, XV. of 1877, Sched. II., arts. 139,
144; Radha Govind v. Inglis, decided by the Privy Council on 6th July, 1880;
Ramchandra Govind v. Vamanji, Bom. H. C. P. J. 1881, p. 198.
In many cases of so-called tenancy in India it may be remarked the possession
644 HINDU LAW. [BOOK U.
partition and bars an action for further partition (y). In Anandrao
Padaji v. Shidooji Anandrao (w) one member of a Vatandar family
had exclusively held the Vatan lands and another the personal
emoluments for 30 years (x). It was held that this raised a pre-
sumption of partition, and in Sitaram Vasudev v. Khanderao (y)
it was ruled, that where there had been a separation of residence
and non-participation by the plaintiff for more than 30 years before
Act IX. of 1871 came into operation, an exclusive prescriptive
title had been acquired by the defendant, under Eeg. V. of 1827.
The learned Judges in this last case must have supposed that there
had been an exclusive possession held, in good faith, as sole pro-
prietor for 30 years, as otherwise the possession by one joint tenant
would have been the possession of all (z). Under Act IX. of 1908,
of the land is not really intended to be given to the cultivator. He is, especially
where the produce is divided, rather in the position of a colonus, or of a farmer,
as in the earlier English law (see Bracton, 27 h 220, Butler's note to Co. Lit.
330 h ; Bl. Com. Book III., Chap. IX., and Chap. XI.) with a licence to enter
and use the land but no interest in the land itself, only a personal right against
the owner should the latter eject him. See Venkatachalam Chetti v. Andiappan
Ambalam, I. L. R. 2 Mad. 232. On the other hand, payments are sometimes
made by " tenants " who do not hold by a derivative title from their over-lord,
and where there is not really a " reversion," there never having been a lease.
The possession is that of owners subject only to a rate or quit-rent. See
Bhaskarappa v. The Collector of North Canara, I. L. E. 3 Bom., at pp. 545, 564;
Babaji v. Narayan, ibid. 340, and the cases there referred to.
(v) Girdhur Purchotum et al. v. Govind et al., 7 Harr. 371; Bhana Govind
Guravi v. Vithoji Ladoji Guravi, 3 Bom. H. C. E. 170 A. C. J. ; C. D. Bane et al.
V. G. R. Bane, 3 ibid. 173 A. C. J. ; Svamirayacharya v. The Heirs of Moodgala-
charya et al., S. A. No. 94 of 1872, Bom. H. C. P. J. F. for 1875, p. 89, and the
rile for 1876, p. 132. Acquiescence in a distribution for 19 years was held
conclusive in Inga Mulloo Pitchanna v. L. M. Goruppa, M. S. D. A., Dec, for
1859, p. 84. Under Act XV. of 1877, sec. 25, the title by possession held con-
tinuously will generally be completed by limitation concurrently with the
extinction of the right to sue.
(w) S. A. No. 453 of 1871, Bom. H. C. P. J. F. for 1872.
(x) Bharangowda v. Sivangoioda et al., supra, p. 692.
iy) I. L. E. 1 Bora. 286.
(z) See above, p. 589; 16 Vin. Abridgt. 456; Cr. Dig. Tit. XXXI., Chap. II.;
2 Sm. L. C. 606 ss. ; 2 Ev. Pothier, 127 ; Denys v. Shuckburgh, 5 Jur. N. S. 21;
Murray v. Hall, 18 L. J. C. P. 161; Luchman Singh v. Shumshere Singh^
L. E. 2 I. A. 58 ; Runjeet Singh et al. v. Kooer Gujrai Singh, L. E. 1 I. A. 9.
As to absolutely exclusive possession being necessary to constitute a bar
against coparceners, see above, p. 589; Shidoji v. Naikoji, 10 B. H. C. E. 288,
quoting K. Subbaiya v. K. Rajesvara, 4 M. H. C. E. 357 ; Atmaram Baji v.
Madhavrao Bapuji, Bom. H. C. P. J. 1880, p. 311 ; Kazi Ahmed v. Moro Keshav,
Bom. H. C. P. J. 1878, p. 120. In Ramchandra v. Venkatrao, I. L. E. 6 Bom.,
SEPARATION, GENERAL OR PARTIAL. 645
Sch. A., art. 127, time is counted for limitation against a claimant
of a share only from his knowing of his exclusion (a).
§ 4 E. The separation may be general or partial, i.e., it may
extend to a partition of the whole of the property, or only to a
portion of it (b). In the latter case the mutual rights and duties of
at p. 600, it was stated as a ground for inferring non-partition between the
parties " that each is in enjoyment of some portion of the family property."
The Hindu law of prescription is considered in the case of Moro Vishvanath
et al. V. Ganesh Vithal et al., 10 Bom. H. C. E. 444. The law of prescription
under the Eegulation is further discussed in the case of Ramhhat v. The Collec-
tor of Poona, at I. L. E. 1 Bom. 592; and see above, Book I., pp. 70, 174; also
Thakur Durryao Singh v. Thakur Davi Singh, 13 B. L. E. 165; S. C, L. E.
1 I. A. 1.
Under the older Eoman Law there was no usucapion of provincial land ;
but it might be acquired by a longi temporis prescriptio of 10 years during
the presence of the former proprietor and of 20 years during his absence.
(Comp. Yajn. II. 24; Manu VIII. 147; Narada, Pt. I., Chap. IV., paras. 6, 7.)
This was, by Justinian, made the universal law. He added a general prescrip-
tion of 30 years free from the condition of an initial title provided the possession
had begun in good faith. Cod. L. 7; 39, 8. See Poste's Gaius, pp. 159, 160.
This is the original source of the term prescribed in Bom. Eeg. V. of 1827,
sec. 1. See West's Bombay Code, ad loc., and Savigny's Syst, Vol. III. 380.
(a) Hari v. Maruti, I. L. E. 6 Bom. 741,
(b) Rewun Persad v. Musst. Radha Beehy, 4 M. I. A. 137; Appovier v.
Rama Suhha Aiyan et al., 11 ihid. 75 ; 2 Str. H. L. 377, 380, 387. A partition
carried out partly in foreign territory was completed in' British territory, Kasi
Yesaji v. Ramchandra Bhimaji Nahur, Bom. H. C. P. J. for 1878, p. 151. In
Manjanatha v. Narayan, I. L. E. 6 Mad. 362, the case is dealt with of a
claim to partition by a representative of one branch against the representative
of another after partial partitions. These having been obtained by younger
members during their fathers' lives and membership with others of a joint family
could not properly have been enforced, see pp. 608, 613, and comp. p. 647. It is
only when no progenitor in his own branch intervenes that a junior has an
unqualified right to a severance of his share. The share due to each branch
and sub-branch was held to be what it would have been had there been no
partition, since the right centred in a single ancestor, minus so much as had
in the partial partitions been previously given to members of such branch or
sub-branch. According to the theory of those who regard a partial partition as
involving a general partition and partial reunion, each branch and sub-branch
in the case just discussed would be regarded as having rejoined with a share
diminished by the sub-share of the severed member. There would then be room
for an application of the principle stated in the Vyav. May., quoted above,
p. 132 ; and equally so in the case of a reunion of one of two or more brothers
who as a group had previously left the family and also separated inter se. One
such bringing back but a third of what his branch had taken out could not be
allowed to claim a repartition and the full share of his branch in the reunited
estate, already diminished by two-thirds of that share. By treating the relative
646 HINDU LAW. [BOOK II.
the former coparceners in relation to the undivided residue of the
estate remain generally as before partition (c). If there be a con-
version of the joint tenancy of an undivided family into a tenancy
in common of the members of that undivided family, the undi-
vided family becomes a divided family with reference to the pro-
perty that is the subject of that agreement (d). A partial division,
however, cannot be enforced (e) ; the coparcener or the purchaser
of a coparcener's rights must claim the whole of his share (/). There
is a conflict of decisions as to the rights of a purchaser of the un-
divided interest of a coparcener in a portion of the joint family
property to enforce partition of the portion only (g). But in case
of compulsory alienation by an execution sale all over India, and
volunt-ary alienation in Bombay and Madras, of a coparcener's
interest in a specified property forming a portion only of the joint
estate a suit for partition of that property only it seems is main-
tainable (h) ; but if the alienation be of the entire interest of a co-
claims as subject to deduction as in the case quoted, a result is brought out
identical with that contended for in the Mayukha, if ancestral estate only is in
question. It is in this sense that the reunited parcener " is remitted to his
former status." According to the Mit. (Chap. I., sec. 5, para. 31) there can be
no partition directly between the grandfather and grandson while the father is
alive, Rai Bishen Chand v. Asmida Koer, L. R. 11 I. A. 164, per Curiam.
(c) Ramabai v. Jogan Sooryhhan et al., S. A. No. 260 of 1871, Bom.
H. C. P. J. F. for 1873, No. 35. In Atmaram Baji v. Madhavrav Bapuji, Bom.
H. C. P. J. F. for 1880, p. 31, it was held that a family house reserved from
partition was open to a supplemental partition, and that a family arrangement,
if not shown to have been abandoned, was enforcible, though not acted on,
Lachmi v. Janki, I. L. R. 23 All. 216.
(d) Lord Westbury in Appovier v. Rama Suhha Aiyan, 11 M. I. A. 75. See
also Timmi Reddy v. Achamma, 2 M. H. C. R. 325.
(e) Haridas Sanyal v. Prannath Sanyal, I. L. R. 12 Cal. 566.
(/) Dadjee Deorav v. Vitul Deorav, Bom. Sel. Ca. 172; Ragrindrapa v.
Soohapa, S. A. No. 3948, 27th September 1858; Nanahhai v. Nathahhai, 7 Bom.
H. C. R. 46 A. C. J. ; Jaitaram Bechur v. Bat Gunga, 8 ibid. 228 A. C. J. ;
Trimbak Dikshit v. Narayan Dikshit, 11 ibid. 69; Murariapa v. Krishnapa et al.,
S. A. No. 372 of 1872, Bom. H. C. P. J. F. for 1873, No. 15; Mahadew et al. v.
Trimbuk Gopal, S. A. 90 of 1872, ibid. No. 127; Bajyram Vithal v. Atmaram
Vithal, Bom. H. C. P. J. 1881, p. 302. Comp. Parbati Churn Deb v. Ainud
Deen, I. L. R. 7 Cal. 577; Jogendra v. Jugobundhu, I. L. R. 14 Cal. 122;
Venkayya v. Lakshmayya, I. L. R. 16 Mad. 98; Shivamurteappa v. Virappa,
I. L. R. 24 Bom. 128.
ig) Shivamurteappa v. Virappa, I. L. R. 24 Bom. 128; Kristayya v. Nara-
simha, I. L. R. 23 Mad. 608.
(h) Ram v. Mul, I. L. R. 28 All. 39; Ram v. Ajudhia, ibid. 50; Barabi Debt
V. Deb Kamini, I. L. R. 20 Cal. 682.
SEPARATION, GENERAL OR PARTIAL. 647
parcener, a partition in respect of a portion only will not lie (i). The
sale, however, of the undivided coparcenary interest of a father or
a son in the execution of a decree is equivalent to a partition and
the father's wife can claim her share (/c). See below, " Liabilities
ON Inheritance."
It sometimes happens that litigation occurs as to a particular
part of a joint estate without the existence of the remainder being
disclosed (l). In such cases the property in suit is naturally
treated as the whole est'ate. Sometimes the whole of the interests
of the members of a joint family in a defined property, as for
instance in a "hakk," have been sold to several persons who
become litigants. In such a case (m) it seems to have been tacitly
assumed that the purchasers and mortgagees, by dealing with the
parceners for their several interests in the fragment of the whole
family property as distinct from the remainder, recognized their
capacity to enter into such transactions without a general parti-
tion, and the continuance of mutual rights and obligations arising
out of the union of the family with respect to the residue of the
common estate. The case was disposed of by reference to the
respective aliquot shares to which the grantors were prima facie
entitled, compared with each other and with those of the other
members of the family. The latter members might, however, have
claims which would diminish the prima facie shares of the gran-
tors ; and the determination of the rights inter se of grantees from
one member or branch, or between such grantees and their gran-
tors, members of a joint family, must always be subordinate to the
relative rights of such grantors and their coparceners in the joint
estate (n).
Though partial division is of very frequent occurrence in prac-
tice, the law books do not contain any special rules on the
subject (o). But that it is not a mere modern innovation may be
interred from the passages relating to ' ' Naturally Indivisible Pro-
perty " in the older Smritis (p). In the absence of definite
(t) Shivamurteappa v. Virappa, I. L. E. 24 Bom. 128.
(fe) Bilaso V. Dina, I. L. R. 3 All. 88 ; Pursid v. Honorman, I. L. R. 5 Cal. 845.
(Z) Vainder Bhat v. Venktesh, 10 Bom. H. C. R., at pp. 158, 159, 162.
(w) Galla Motiram v. Naro Balkrishna, Bom. H. C. P. J. F. for 1878, p. 69.
(n) See Rakhmaji v. Tatia, Bom. H. C. P. J. F. for 1880, p. 188.
(o) Partial partition cannot, it was said, be decreed except by consent,
Radha Churn Dass v. Kripa Sindhu Dass, I. L. R. 5 Cal. 474.
(p) "A remainder of an estate being undivided is not deemed disproof of a
648 HINDU LAW. [BOOK II.
authorities, it is necessary to fall back here, as in other cases, on
general principles and on actual decisions. Lands assigned for
the subsistence of a widow or disqualified member are commonly-
reserved for future partition. Property left undivided (5), because
mortgaged, was redeemed by the widow of one of the parties to the
partition. She died and her daughter succeeded, but was compelled
to give up the property redeemed to the son of one of her father's
coparceners on a recoupment of the expenses of redemption (r). So
also where there had been a former suit for partition excluding a
portion mortgaged (s). So as to a part advisedly reserved for
common enjoyment (t). Limitation does not operate in such a
case until, by exclusive possession as sole owner, one branch
becomes entitled by prescription (v).
One of the most important questions arising in connexion with
this subject is that of whether the law regulating the succession
to an undivided or that applicable to a divided male's estate regu-
lates the devolution of an undivided residue. Mr. Colebrooke (w)
states that opinions have differed on this subject, but that the
former view seems preferable. Most of the Sastris (x) hold the
same opinion, in favour of which the following considerations also
may be urged. The law, which bases partition on the will of the
coparceners, extends the partition no further than such will. If
this extends only to a portion of the estate, their mutual rights
and duties with respect to the remainder are unaltered. To the
partition, for it frequently happens that disunited co-heirs have (retain) some
joint property," Jag. in Col. Dig., Book V. T. 387, Comm., ad fin. Though
partition may by accident have been incomplete, the parties are then in status
divided, Smriti Chandrika, Chap. XIV., para. 10. See above, pp. 681, 684, 692.
iq) Narayan v. Pandurang, 12 Bom. H. C. K. 148; Kristayya v. Narasimha,
I. L. K. 23 Mad. 608.
(r) Khondaji Bhavani v. Salu Shrivram, S. A. No. 199 of 1874, Bom.
H. C. P. J. F. for 1875, p. 50, following Balkrishna Vithal et al. v. Hart
ShunJcer, 8 Bom. H. C. E. 64 A. C. J.
(s) Narayan Babaji v. Pandurang Ramchandra et al., 12 Bom. H. C. E. 148.
(t) Gopalacharya v. Keshav Daji, S. A. No. 240 of 1876, Bom. H. C. P. J. F.
for 1876, p. 244.
(v) Swamirayachari v. The Heirs of Moodgalacharyi et al., S. A. No. 94 of
1872, Bom. H. C. P. J. F. for 1875, p. 89, and the File for 1876, p. 132;
Salu et al. v. Yemaji, S. A. No. 291 of 1873, ibid, for 1873, p. 89; Devapa v.
Ganpaya et al, S. A. No. 125 of 1877, ibid, for 1877, p. 194.
iw) 2 Str. H. L. 387. See p. 648, note (t).
{x) See Book I., Vyav., Chap. I., sec. 2, Q. 9, 11, 14, 22; supra, pp. 328, 330,
831, 334, 335.
PARTITION, FINAL. 649
same effect is 1 Macn. H. L. 53 (y). It was said, however, that
when an actual partition of part of a family estate had been proved
it lay on those who asserted non-partition of the remainder (a bank-
ing business) to prove it (z).
§ 4 F. Partition final. — A partition once agreed to is final (a),
except in the case of a mistake or fraud which has materially
affected the distribution. In both cases a redistribution may be
claimed by any parties injured, which, however, extends only to
the portion overlooked or fraudulently abstracted {b). It is sub-
ject to a proportional deduction from each coparcener's share on
the birth of a posthumous son (c). Misconduct in dealing with the
iy) Col. Dig., Book V., Chap. VIII. T. 431 Comm. ; Rewana Prasad v. Radha
Bihi, 4 M. I. A. 137 ; Katama Natchiar v. The Rajah of Shivagunga, 9 M. I. A.
639 ; Timmi Reddy v. Achama, 2 M. H. C. E. 325 ; Maccandas v. Ganpatrao,
Perry's Or. Ca. 143.
(z) Umiashankar v. Bai Ratan, Bom. H. C. P. J. F. for 1878, p. 217, referring
to Narayan Babaji v. Nana Manohar, 7 Bom. E. 153 A. C. J. Comp. p. 589,
supra, and next note.
(a) Manu IX. 47 ; Maharajah Hetnarain v. Baboo Modnarain Sing, 7 M. I. A.
311; Rango Mairal v. Chinto Ganesh et al., S. A. No. 297 of 1874, Bom.
H. C. P. J. F. for 1876, p. 74. A distribution acquiesced in will not be set
aside, Kunnyah Pande et al. v. Ram Dhun Pande, 9 S. D. A. E. N. W. P. for
1854, p. 383 ; Balahux v. Rukhmahai, L. E. 30 I. A. 130.
But in the case of fraud or ignorance or of a part left undivided by arrange-
ment, the Court will entertain a suit for partition of that residue, Narayan
Bahaji et al. v. Nana Manohar et al., 7 Bom. H. C. E., at p. 178 A. C. J.;
Lakshman v. Krishnaji Ramajee et al., S. A. No. 289 of 1869, Bom. H. C. P.
J. F. for 1870.
Where shares of co-sharers are defined so as to consist solely of particular
parts of the family property, but it is not actually divided in specie, the brothers
are severally entitled to the shares as so defined notwithstanding subsequent
changes in value, Amrit Rav Vinayak v. Ahaji Haibat, Bom. H. C. P. J. for
1878, p. 293.
(6) Mit., Chap. I., sec. 9, paras. 1 and 2; Stokes's H. L. B. 404; May.,
Chap. IV., sec. 7, paras. 24 and 26; Stokes's H. L. B. 79. So, in the Eoman
law, a partition, really incomplete, though supposed to be complete, does not
prevent the coparceners from afterwards claiming their further shares, because
the provisional partition, without an abandonment of rights, is not juridically
binding on them; Sav. Syst. III. 411. Compare the Smriti Chandrika,
Chap. XIV., paras. 7, 11 ff. When a previous partition has taken place, the
burden of proving, in a subsequent suit, that the property of which a division
is sought remained undivided, rests on the plaintiff, Narayan Babaji et al. v.
Nana Manohar et al., 7 Bom. H. C. E. 163 A. C. J.; Maruti et al. v. Vish-
wanth, S. A. No. 233 of 1877, Bom. H. C. P. J. F. for 1877, p. 347; Lachman
V. Sanwal, I. L. E. 1 All. 543.
(c) See below, § 7, " Duties and Eights arising on Partition."
660 HINDU LAW. [BOOK II.
oommon property to the injury of the co-sharers is a usual charge
both in suits seeking to have a partition reopened and in those
claiming a partition and an account. A partition is sometimes
fraudulently resorted to, or the incapacity of the debtor is set up,
or sham debts are admitted, and sham securities executed, in order
to cheat the creditors of one or more co-sharers. On the other hand,
creditors come forward with or without collusion on the part of par-
ticular coparceners, especially ex-managers, to claim a partition or
a revised partition for the satisfaction of unjust claims. Many
decisions have had for their aim to defeat such schemes on the one
side or the other, consistently with the recognized principles of
the Hindu law (d).
In Hindu as in English law, fraud vitiates every transaction (e).
(d) As to limitation see above, pp. 689, 644. Under the older law of limitation
a plaintiff had to show his own possession within 12 years. Under Act IX. of
1871 he could sue within 12 years of the possession challenged by him having
become adverse, by the denial of a claim actually made by him. Possession
by the Collector to protect the land revenue was not deemed adverse to the real
proprietor, Rao Kasan Singh v. Raja Baker Ali Khan, L. R. 9 I. A. 99. The
law is the same under the Limitation Act, XV. of 1877, Sch. II., art. 127, the
time being counted from knowledge of excliision. As to the coalescence of rights
arising from sequence of possession by legal succession or privity but not
without it, see Domat, C. L. vol. I., pp. 874, 875, and the cases referred to in
Asher v. Whitlock, L. E. 1 Q. B. 1. The prescriptive title arising under sec-
tion 28 of the Limitation Act is not created for the last of a series of mere
possessors not connected by a legal derivation of right from the first to the last.
It is only the original right that is extinguished by discontinuance of possession
under Schedule II., art. 142. If mere accidental instances of possession might
be combined, each in turn would properly be connected with the original rightful
possession, and being derived out of it would not avail for a greater interest than
could be based on an accompanying title, which in such a case would not exist.
That mere non-enjoyment is not equivalent to exclusion giving an adverse
character to another parcener's possession, is shown by the case of Vishnu
Vishvanath v. Ramchandra Narhar, Bo. H. C. P. J. 1883, p. 53. There a sole
enjoyment of immovable property by one brother for about 30 years, was
followed by a partial partition, and that by a suit 7 or 8 years afterwards, which
was not pronounced unsustainable. In Hanaji Chhiba v. Valabh Chhiha, Bom.
H. C. P. J. 1883, p. 57, the common case is referred to of a son's going away
for several years to gain his livelihood, leaving his father and brothers in sole
enjoyment but on a joint right. This it was thought would not cause even Act
XIV. of 1859 to bar a subsequent claim. See above, pp. 625, 634, 636, 642.
(e) Manu VIII. 165; Col. Dig., Book IV. T. 184; Vyav. May., Chap. IX.,
para. 10 ; Vaman Ramchandra v. Dhondiha Krishnaji, I. L. R. 4 Bom. 126, 153 ;
Bayabai v. Bala, 7 Bom. H. C. R. 1, 22, 23, App. ; Balaram Nemchand v. Appa,
9 Bom. H. C. R. 121, 146, 147 ; Khushalbhai Narsidas v. Kabhai Jorabhai, Bom.
H. C. P. J. 1881, p. 231; Moro Vishvanath v. Ganesh, 10 Bom. H. C. R. 444.
PARTITION, FINAL. 651
It affords a ground for setting aside or rectifying a partition,
equally with any other transaction by which one parcener may
endeavour, with or without assistance, to gain an unfair advantage
at the cost of the others. But neither is the coparcenership allowed
to be made a means of cheating outsiders who have engaged in
transactions with particular members of the family. In Khus-
halhhai v. Kahhai (/), a partition was set aside on the ground that
a parcener had been unfairly used by his brothers. But in Bengal
a nephew was allowed to profit by his suppression of a will which
prevented his uncle's widow from adopting (g). In some instances
individual coparceners have affected, contrary to the law of the
Mitakshara (Chap. I., sec. 1, pi. 30, Stokes's, H. L. B. 376), to
sell or mortgage the common property or particular parts of it.
The Privy Council have as to brethren adhered to the Mitakshara :
*' Between undivided coparceners, there can be no alienation by
one without the consent of the other " (h), at the same time that
effect is given to the principle laid down by James L.J., in Syud
Tufjuzzool V. Rughoonath Pershad (i), that the undivided share is
property that a creditor can make available for payment of his
claim (k). A purchaser of an undivided share, though not entitled
to any particular portion of the estate, can sue for a partition on
the same terms as his vendor, and in the partition effect is to be
given, so far as justice allows, to the particular transaction with
the vendee or the mortgagee (7). Neither, therefore, is a partition
actually made allowed to defraud him (m). But to prevent a
(/) Supra, p. 650, note (e).
ig) See above, p. 350.
(h) Musst. Cheetha v. JB. Miheen Loll, 11 M. I. A. 369; Balgohind v. Narain,
L. R. 20 I. A. 116 ; Madho Pershad v. Mehrhan, L. R. 17 I. A. 194; Lakshman
V. Ramchandra, L. E. 7 I. A. 18, on law in Bombay, when he can alienate his
own undivided share for value. In England a covenant by a joint tenant to sell
severs the joint tenancy in equity as regards his share, Brown v. Randle, 3 Ves.
267; see supra, Book II., sec. 4 C, p. 617.
(i) 14 M. I. A., at p. 40.
(fe) As to gift and devise see Ganguhai et al. v. Ramanna, 3 Bom. H. C. R.
66 A. C. J. ; see p. 588, note (v). This agrees with the English law as to a joint
tenancy, Co. Lit. 185 h.
(l) Udaram Sitaram v. Ranu Panduji et al., 11 Bom. H. C. R. 76; Vithal
Pandurang et al. v. Purshottam Ramchandra et al., S. A. No. 3 of 1876, Bom,
H. C. P. J. F. for 1876, p. 77; Devapa et al. v. Hemsheti Shivapa, S. A.
No. 384 of 1874, ibid., p. 93 ; Bai Tulsa v. Bhaiji Adam Abraham, Bom. H. C. P.
J. F. for 1878, p. 263.
(m) See above, p. 616.
652 HINDU LAW. [BOOK II.
converse fraud the purchaser from a single member must, in his
suit, join all the members as defendants (n). If the undivided
coparcener is in sole possession, which he transfers to a vendee, the
vendee may retain such possession as tenant in common with the
other coparceners (o). A contrary rule would tend to frauds on
innocent purchasers. Until their several rights are ascertained
the whole undivided property may be attached by a judgment
creditor of one coparcener (p), and if a coparcener's share be sold
in execution, the purchaser acquires a right to demand a partition
from the other coparceners (q), though not more, even when the
managing member has been sued only in his individual capacity (r).
Though in particular circumstances the manager may be held to
have represented the whole family (s), yet a suit for partition is
generally necessary ; since the sale of his interest as such as answer-
able for the decree transfers no more than his share (t). Tlie pur-
chaser has acquired the rights of one co-sharer. In that character
he obtains the legal position of a tenant in common (v), and if put
in possession, he may retain it in that character (w) ; but unless
(n) Sitaram Chandrashekhar v. Sitaram Ahaji, S. A. No. 379 of 1874, Bom.
H. C. P. J. F. for 1875, p. 140.
(o) Kariapa Irapa v. Irapa Solhapa et al., S. A. No. 231 of 1876, Bom.
H. C. P. J. F. for 1876, p. 9 ; Govind Narayan et al. v. Vasudev Vinayak,
I. L. E. 1 Bom. 95; compare Bahaji v. Ramaji, 2 Borr. E. 698.
(p) Go7na Mahad Patil v. Gokaldis Khimji, I. L. E. 3 Bom., at p. 84.
(q) Pandurang v. Bha^kar, 11 Borr. E. 72; Keshav Sakharam Dadhe v.
Lakshman Sakharam, Bom. H. C. P. J. F. for 1878, p. 123; Udaram Sitaram v.
Ranu Panduji et al., 11 Bom. H. C. E. 76.
(r) See Mahabalaya v. Timaya, 12 Bom. H. C. E. 138; Venkataramayyan v.
Venkatasuhramania, I. L. E. 1 Mad. 358 ; Pandurang Kamti v. Venktesh Pai,
Bom. H. C. P. J. F. for 1879, p. 513; Laxman Nilkant v. Vinayak Keshav,
I. L. E. 40 Bom. 329; Kharajamal v. Daim, L. E. 32 I. A. 23.
(s) See Narayan Gop v. Pandurung Ganu, I. L. E. 5 Bom. 686; Mayaram
Sevaram v. Jayvantrav Pandurung, Bom. H. C. P. J. F. for 1874, p. 41; Gopal
Anant Kamat v. Venkaji Narayan Kamat, Bom. H. C. P. J. F. for 1879, p. 370 ;
Ram Sevak Das v. Raghabar, I. L. E. 3 All. 72 ; Gay a Din v. Bunsi Kuar, ibid.,
p. 191; Jogendro Deb Roy Kut v. Funendro Deb Roy Kut, 14 Moo. I. A., at
p. 376; Bissessur hall Sahoo v. Maharajah Luchmessur Singh, L. E. 6 I. A.
236 ; Sheo v. Jaddo Kunwar, L. E. 41 I. A. 216.
(t) Harsahaimal v. Maharaj Singh, I. L. E. 2 All. 294; Deen Dayal v.
Jugdeep Narayan, L. E. 4 I. A. 247; Nanhak Joti v. Jaimangal Chaubey,
I. L. E. 3 All. 294.
(v) Udaram Sitaram v. Ranu Panduji, 11 Bom. H. C. E., at p. 81.
(w) Mahabalaya Parmaya et al. v. Timaya Appaya et al., 12 ibid., 138;
Babaji Lakshman et al. v. Vasudev Vinayek, I. L. E. 1 Bom. 95. As to
separate possession by a united parcener see below. A purchaser at a Court
PARTITION, FINAL. 663
this has occurred th© Court will not give him joint possession. He
is put to his suit for a partition. So in a case of a mortgage im-
properly made and a suit thereon against the manager alone (x).
But a decree and execution, against a father as representative of
a family, were held binding on his sons (y). This implied limita-
tion, however, of the sons' liability for want of representation is
no longer in force, as a creditor is enabled to enforce his claim dur-
ing the life of the father against the entire family property by
decree and execution (z). See Bahu Deen Dayal Lai v. Bahu
Jugdeep Narain Singh (a), where, referring to Saddhart Prasad
Sahu V. Fool Bash Koer et al. (b), and Mahabeer Pershad v. Ram-
yad Singh et al. (c), it was said that though the mortgage of an
imdivided share be invalid, yet execution may be had against it
by a suit for partition by the purchaser in execution of the undi-
vided share. This judgment established the seizable character of
an undivided share (d) and a charge created by such attachment.
sale can only seek for partition by suit ; he is not entitled to joint possession.
Balaji Anant v. Ganesh Janardhan, I. L. K. 6 Bom., at p. 500 ; Dugappa Sheti v.
Venkat Ramnaya, ibid. 493; Pandurung Anandro v. Bhaskar Sadashiv, 11 Bom.
H. C. E. 72 ; Krishnaji v. Sitaram, I. L. E. 6 Bom. 496 ; contra Indrasa v. Sadu,
ibid. 505. See above, p. 567.
When one of two coparceners aliens to a stranger his share in a piece of
family property, the other may either exercise his right of interdiction, or affirm
the act and claim by partition to recover from the stranger that share to which
the alienation cannot extend, and which has now become his separate property.
Sripatti Chinna Sanyasi Razu v. Sripatti S. Razu, I. L. E. 5 Mad. 196. The
right of interdiction does not seem to exist. By the strict Hindu law a con-
currence of all the coparceners is necessary to give effect to an alienation. By
the decisions one coparcener may dispose of his interest against the will of the
others, but an interest to be ascertained by a general partition; see Pandurang
v. Bhaskar, supra.
(x) Baji Shamraj Joshi v. Dev bin Babaji Jadhav, Bom. H. C. P. J. F. for
1879, p. 238.
iy) Ram Narayan Loll v. Bhowani Prasad, I. L. E. 3 All. 443, F. B. As
to the case in which a father defendant may be held not to represent his infant
sons, see Gurusami v. Chinna Mannar, I. L. E. 5 Mad. 37, 42.
(z) Khalilall Rahman v. Gobind, 1. L. E. 20 Cal. 328, 338; Ramasami Nadan
V. Ulagantha, I. L. E. 22 Mad. 49, F. B. ; Badri Prasad v. Madan Lai, 1. L. E.
15 All. 75, F. B. ; Govind Krishna v. Sakharam, I. L. E. 28 Bom. 383; Datta-
iraya Vishnu v. Vishnu Narayan, I. L. E. 36 Bom. 68; Laxman Nilkant v.
Vinayak Keshav, I. L. E. 40 Bom. 329.
(a) L. E. 4 I. A. 247.
(b) 3 B. L. E. 31 F. B.
(c) 12 B. L. E. 90.
(d) Suraj Bunsee Koer v. Sheo Prasad, L. E. 6 I. A. 88, 109; Vasudev Bhat
V. Venkatesh Sanbhav. 10 Bom. H. C. E. 139; Balaji v. Ganesh, I. L. E. 5 Bom.
664 HINDU LAW. [BOOK II.
In all such cases as these effect may be given to transactions
approved by the law, and those disapproved may be defeated not
only by means of a compulsory partition, but by the revision of
one actually or fictitiously made.
III. — Distribution of the Common Property.
§ 5 A. In a (suit for) partition the whole property of each mem-
ber is presumed to belong to the common stock (e). Every Hindu
family is presumably joint in food, worship, and estate (/). The
common property may be distributable or undistributable. In
both classes it may be :
1. A grant to xmited parceners without distinction of
shares (g)
2. Ancestral, which may again be :
a. Inherited, h. Or recovered.
3. 8 elf -acquired.
2. a. — Ancestral inherited property. — Ancestral property, as
amongst descendants, comprises property, transmitted in the
direct male line from a common ancestor, and accretions to such
property, made with the aid of the inherited ancestral estate (h).
499. Several of the decisions quoted in this paragraph have more or less
distinctly been referred to different principles, but the purpose of the reference
has generally been the prevention of fraud by moulding the Law of Partition
to the exigencies of modern life.
(e) Luximom Raw Sadesew v. Mullarow Baji, 2 Knapp P. C. Ca. 60; Bapu
Purshotam v. Shivlal Ramachandra, Bom. H. C. P. J. 1879, p. 671. As to
debts due by or to the family, see below, § 7 B. 1.
(/) Neelkishto Deh Burmono v. Beer Chunder Thakoor, 12 M. I. A. 640 ;
Narayan Deshpande v. Anaji Deshpande, I. L. K. 5 Bom. 130; Prit Koer v.
Mdhadeo Per shad Singh, L. E. 21 I. A. 134.
(g) Radhahai v. Nanarav, I. L. E. 3 Bom. 151.
(h) Bissessur Lall Sahoo v. Maharajah Luchmessur Singh, L. E. 6 I. A. 233.
In a family descended as follows :
A
B
1
1
C
1
1
1
2
C^ having purchased property out of the profits of the family estate, it was
1
held that C was entitled as against C^ to a moiety, Keshoo Tewaree v. Ishree
u
Tewaree et ah, N. W. P. E. for 1861, p. 665. Immovable property purchased
DISTRIBUTION OF COMMON PROPERTY. 656
In the absence of proof to the contrary it is assumed that a
purchase by a member of a joint family is made on the joint
account (/). In Rajmohun Gossain v. Gourmohun, Gossain {k),
the Privy Council say of the term " ancestral " in an agreement
amongst brothers: " Ancestral is here employed ... in the
sense of paternal, i.e., as meaning the property of the father in
whatsoever manner or by whatsoever title the father had acquired
it." To him it might be self-acquired, but to the sons it was
ancestral estate. Thus, in the case of a father, head of a family,
property inherited from his father or grandfather is ancestral pro-
perty, however acquired by its previous possessors. Ancestral
property, mortgaged by the father and sold in execution, is subject
to the claim to partition of the sons (l). In Gungoo Mull v.
Bunseedhur (m), three sons having inherited on the death of
the father, and one of them having afterwards died, the sons of
a surviving brother were held to have an interest in the addi-
tion thus caused to their father's share, enabling one of them to
sue a purchaser in execution for the allotment to him of his
proper portion. The Court say: " The father has no more abso-
lute and exclusive right in ancestral property, which devolves on
him by his brother's death than he has in the like property, which
he inherits from his father. ' ' The case seems to have been imper-
fectly brought before the Court. The family being joint, it does
not appear how one of the three brothers could, on the death of
another, succeed to the whole instead of a moiety of his share, or
how one of his three sons could sue alone, or sue his father's
judgment-creditor or execution-purchaser alone for his one-third
share in his father's estate, without claiming a general partition
of the family property.
On the other hand, property inherited by a father from females,
brothers, or collaterals, or directly from a great-great-grandfather,
with the capital or profits of ancestral movable property ranks as immovable
ancestral property, not as movable. It cannot be disposed of by a father
without the assent of his sons, and the latter may insist on partition, Shib Dayee
V. Doorga Pershad, 4 N. W. P. 71.
(t) Gopeekrist Gosani v. Gungapersaud, 6 M. I, A. 53; Bissessur Loll Sahoo
V. Maharajah Luchmessur Singh, L. E. 6 1. A., at p. 236. So Nathu v. Mahadu,
Bom. H. C. P. J. 1879, p. 669. See below, " Self-acquired Property."
(k) 8 M.I. A., at p. 96.
(/) Lochun Singh et al. v. Nemdharee Singh et al, 20 C. W. R. 170.
(w) 1 N. W. P. R. 79.
656 HINDU LAW. [BOOK II.
appears to be subject to the same rules as if self -acquired (n).
Ancestral property, in fact, may be said to be co-extensive with the
objects of the apratibandhaday a, or " unobstructed inheritance " :
the contrast drawn in the Sanskrit authorities is between pitrarjit
(n) Baboo Nund Coomar Lall et al. v. Moulvie Razee-ood-deen Hoosein, 10
Beng. L. E. 183 S. C, 18 C. W. K. 477; Gooroochurn Doss et al. v. Goolukmoney
Dossee, 1 Fult. 165; R. Nallatamhi Chetti v. R. Makunda Chetti, 3 M. H. C. E.
455, 457. In Muttayan Chetti v. Sivagiri Zamindar, I. L. E. 3 Mad., at p. 375,
it is said that property inherited from a mother (which according to the now
prevailing doctrine would generally be looked on as inherited from her father,
or some other male relative) is not to be ranked in the same class with self-
acquired. This, which may perhaps be regarded as extra-judicial, is opposed to
the judgment of Sir A. Bittlestone and the other authorities referred to in this
note. The chief ground for the doctrine seems to be a passage in the Mit.,
Chap, I., sec. IV., para. 2, in which Vijnanesvara extends the condition of a
separate acquisition having been made without detriment to the paternal estate
by analogy to the maternal estate, which in some cases brothers inherit equally
(Mit., Chap. II., sec. XI., para. 20). There is no inborn right of a son to a
maternally as to a paternally descended estate. In the case of patrimony the
right is one of co-ownership, and it is this right only that qualifies the father's
ownership and power of disposition. It is on this that Vijnanesvara grounds the
son's right to an interdiction : in its absence the father might dispose of the
ancestral as well as of the other property, and a mother's estate is not ancestral
within the meaning of the Sanskrit term, though for some purposes the analogy
of the patrimony has been extended to it. These particular extensions imply a
general difference in kind, and a usual incident of ownership is not to be extin-
guished without a clear rule to that end. The Mayukha in dealing with the
Sanskrit text of Yajnavalkya, on which Vijnanesvara 's discussion is founded
(see Vyav. May., Chap. IV., sec. VII., para. 2 ff ; Yajn. II. 118), does not, any
more than the text itself, mention a maternal heritage. In sec. II., of the same
chapter, though it quotes a passage limiting " daya " to the " wealth of a
father," it says that father stands for " relations in general," but again in
sec. X., para. 26, it does not place the son's inheritance to the mother's property
on an immediate participation by birth as in the case of the patrimony. On
the theory of the woman's estate being merely interpolated, the maternal grand-
son's right may be called " daya " but not patrimonial. On the whole Jagan-
natha's reasoning seems to be the best. Complete ownership in him who takes
an estate is the general principle of the Hindu law, modified only by the texts
which dedicate ancestral and in part self- acquired lands to the nurture of the
agnatic line of manes and descendants. Had Vijnanesvara recognized in the
sons a joint ownership along with their mother in her separate estate it is
unlikely that he should not have said so in the discussion by which he establishes
their joint ownership with the father over ancestral property. The text of
Yajnavalkya, which declares the equal ownership of father and son, does not
include a mother. (See Mit., Chap. I., sec. V., para. 13 ff.) The inheritance
to her is rather by succession than by survivorship (see Vyav. May., Chap. IV.,
sec. II., paras. 1, 2), and the estate which the son has not himself gained
through joint ownership need not in his hands be subject to a joint ownership
DISTRIBUTION OF COMMON PROPERTY. 657
" acquired by fathers," and svarjit " acquired by one's self " (o).
The view here stated agrees with that arrived at by Jagan-
natha (p), after a discussion of the contrary doctrines held by other
lawyers {q). This discussion itself shows, however, that there is
much to be said on both sides, and the question must be regarded
as one still in controversy. Those who hold that all property
descending to the father from relations ranks as ancestral property,
interpret the text of Yajnavalkya (r), which relates to the grand-
father's property, as an example of the principle that all property,
taken by right of affinity (s), is to be regarded as ancestral. Those,
on the other hand, who maintain that property regularly trans-
mitted from ancestors in the male line, and that alone, is ancestral
property, understand the text to imply affinity only of that closest
kind which its terms necessarily import, namely, that existing
between an ancestor and his first three descendants (t). On con-
sidering the former of these conflicting views, it presents this diffi-
culty, that it assigns, in many cases, to a son equal power with his
father over property which, but for his father's taking it, could
never come to him, while, in the example given in the text, the
intervention of the father is immaterial. The property held by a
grandfather must come to his grandson, and that of a great-grand-
father to his great-grandson, in the male line, whether the inter-
vening descendants survive or not, whereas the property of a great-
grandfather descends to his great-grandson, through his daughter.
and the other incidents of an ancestral heritage. Amongst some of the tribes
in the Panjab, property inherited through the mother is excluded from the
aggregate for partition. Amongst others all property of every kind is included.
Panj. Cust. Law, Vol. II. 170.
(o) Book I., pp. 61, 73, ss. A similar distinction is made by the Customary
Law : see Steele, L. C, p. 63.
(p) Col. Dig., Book v., Chap. II., T. 103. "What is received from the
maternal grandfather must not be considered as having descended from ancestors,
but as acquired by the man himself." Col. Dig., Book 11. , Chap. IV. T. 28,
Comm.
(q) This view was approved and adopted in the case of B. Nund Comar Lall
et al. V. Moulvee Razee-ood-deen Hoosein et al., 18 C. W. E. 477.
(r) Mit., Chap. I., sec. 5, para. 3.
(s) See also Col. Dig., loc. cit.
(t) See also Col. Dig., loc. cit. suh fin. In Kangra, " by ancestral lands is
generally understood land once held by the common ancestor, not all land
whatsoever inherited by the donor " (to a daughter and her children), Panj. Cust.
Law, Vol. II., p. 186.
H.L. 42
368 HINDU LAW. [BOOK II.
only if first inherited by his daughter's son (v). It may
further be objected that the^ equal right of the grandson with his
father in the property of the grandfather is a. supersession of the
more ancient rule, supported by numerous texts, of the father's
independence and supremacy over his family and estate (w). It
would appear dangerous to extend the supersession in the absence
of explicit texts, on the strength of an interpretation.
An objection, commonly urged against the second view, is that,
by classing property inherited by the father from relations with
self-acquired property, an undue extension is given to the latter
term, since acquisition (arjana) implies an individual effort. Jagan-
natha, loc. cit., felicitously meets this objection by showing that
such an extension must be allowed in other cases, such as those of
a priest inheriting from his Yajamana, that is, the person for
whom he sacrifices, and of an Acharya or religious teacher in-
heriting from his pupil (x). It is impossible to class such
inheritances as ancestral property, since the text, by instancing a
grandfather, whose relationship is one of blood, cannot imply the
spiritual relationship existing between a teacher and his pupil, or
between a priest and his Yajamana. Though inherited, therefore,
(v) As the passage of Yajnavalkya, Mit., Chap. 11., sec. I., para. 2, specifying
the daughter is extended, ibid., sec. II., para. 6, by the aid of Vishnu XV. 47,
to a daughter's son, but no further.
(w) See Narada, Pt. I., Chap. III., paras. 36, 40; Pt. II., Chap. IV., para. 4;
Pt. II., Chap, v., para. 39; Manu IX. 104; Vyav. May., Chap. IV., sec. 1,
pi. 4, 6; Stokes's H. L. B. 43; Mit., Chap. I., sec. 1, para. 24; Stokes's H. L. B.
375. The father appears in the earhest form of the law to have had unqualified
administrative power and to have had complete dominion over the family (see
above, pp. 65, 270, 599). The rights of the manes at the same time made an
alienation of the ancestral estate unlawful, and the interest felt in a son as a
continuator of the family sacra to be celebrated with indispensable offerings
out of the patrimony (see Vishnu, Transl. 189) raised him first in religion and
then in law to a joint-ownership with his father. It became recognized far
earlier than at Eome that the " patria potestas in henignitate non in atrocitate
consistit,'' as the highly affectionate character of the Hindus readily admitted
sons to a position of secure equality in title, though not till afterwards in
administration. Then followed the right of interdiction to guard against
impious waste, and lastly the right to partition as a logical consequence of
co-ownership. The archaic law has in part been revived by recent cases. As
to sale of ancestral property by a father or by the Court, see above, pp. 587,
592 ss. ; Narayanacharya v. Narso Krishna et al., I. L. K. 1 Bom. 262; Kastur
Bhavani v. Appa and Sitaram, S. A. No. 124 of 1876, Bom. H. C. P. J. F. for
1876, p. 162.
(x) As to a Vritti regarded as a heritable estate, see 2 Str. H. L. 12.
DISTRIBUTION OF COMMON PROPERTY. 659
such estates still rank in contradistinction to the " pitrarjit," as
" syarjit " or self-acquired, which thus becomes equivalent to
"in any way acquired except by succession through descent and
participation of rights."
In a recent case (y) the Privy Council have said that a zamin-
dari inherited through a mother was not self-acquired property,
but they expressed no opinion whether it was subject to the same
restrictions on alienation or hypothecation as if it had descended
to the zamindar from his fathers or grandfather. It may be
concluded, the-refore, that the more extensive construction of
" pitrarjit " or " ancestral " is that which in the future is to pre-
vail, though probably without the consequence of giving to the
son equal power with the father over such ancestral property which
is not in the stricter sense " patrimonial " by agnatic descent (z).
In the Madras decision it is said that property may at the same
time be not " ancestral in the sense in which property inherited
by the father from the paternal grandfather is liable to partition
under the Mitakshara Law at the instance of the son," and yet
not self -acquired property on that ground for purposes other than
those of partition. " This notion of the property being of one class
for one purpose and of another for another is a subtilty which the
authorities do not apparently warrant, and which would lead to
contradictory consequences. The rules for partition of inherited
property point to male lineal inheritance, leaving property owned
in any other right to be distributed as self-acquired, or according
to the special rules applicable on account of the character of the
property as sacred or secular, or as affected or not with the
support of public duties (a).
The nature of ancestral property, as between a father and his
sons, is not affected by the circumstance of a partition having
taken place between the father and his coparceners. The general
principle is laid down by Yajnavalkya (h) : "The ownership of
father and son is the same in the land which was acquired by
the grandfather, or in a corrody or in chattels, which belonged to
him." Vijnanesvara, in his remarks introducing the text quoted,
(y) Muttayan Chettiar v. Sangili Vira Pandia, L. R. 9 I. A. 128, reversing
I. L. R. 3 Mad. 370.
(z) See Mit., Chap. I., sec. I., para. 27; sec. II., para. 6; Chap. VI., sec. 7,
paras. 9, 10, and the judgments referred to in p. 666, note (n).
(a) Above, pp. 179—80.
(6) Mit., Chap. I., sec. 5, para. 3; Stokes's H. L. B. 391.
660 HINDU LAW. [BOOK II.
explicitly states, that it is given to meet the case of a doubt that
might otherwise be felt, in the case of a separation having taken
place between a father and a grandfather. The doctrine has been
correctly apprehended by the Calcutta High Court, in Muddun
Gopal Thakoor et al. v. Ram Baksh Panday et al. (c), where the
authorities are discussed at length. It has been said indeed that
" the divided share of a Hindu in property, which had previously
belonged to the united family, is separate estate, and, like any
other estate held in severalty (such, for instance, as self-acquired
property), is assets, while yet in the hands of the heir, for pay-
ment of the debts of the deceased proprietor " (d). In Girdharilal's
Case (e), and some others (/), this last rule has been practically
absorbed in a wider one, but at the date of the earlier decision
separateness of estate was thought essential to the liability. In
the case of Katam Natchiar v. The Raja of Sivaganga too (g),
the Privy Council laid down the rule, " When property belonging
in common to a united Hindu family has been divided, the divided
shares go in the general course of descent of separate property."
But from this it must not be understood that the nature of the
property, as ancestral estate, is changed. Such a view, originally
held in the case of Lakshniibai v. Gawpat Moroha et al. (h), was
dissented from on appeal (i). The share taken on a partition is
indeed separate estate as regards the other branches of the
(c) 6 C. W. E. 7 C. R.
(d) Udaram Sitaram v. Ranu Panduji et al., 11 Bom. H. C. R., at p. 83.
(e) 22 W. R. 56 C. R. ; S. C, L. R. 1 I. A. 321.
(/) Haza Hira v. Bhaiji Modan, S. A. No. 444 of 1874, Bom. H. C. P. J. F.
for 1875, p. 97.
(g) 9 M, I. A. 609. The judgment of their Lordships was subjected to some
hypercriticism by the late Prof. Goldstiicker (On the Deficiencies, &c., p. 14 ss.),
who seems to have overlooked (p. 16) that the religious benefits for which ances-
tral property is inherited (see Dayabhaga, Chap. XI., sec. 1, para. 32; Stokes's
H. L. B. 312, sec. 6, paras. 30, 31 r Stokes's H. L. B. 351) are not a cause for
the disposal of property not acquired by descent from a former owner, assumed
to be still, in the spirit world, interested in the purposes to which it is applied.
That undivided members may make separate acquisitions, see Col. Dig., Book
V. T. 38 Comm., and above. Book I., Chap. II., sec. 6a, Q. 9, p. 378. Several
cases occur in 2 Str. H. L., at p. 439, the Smriti Chandrika being quoted as
assuming such acquisitions to be possible. So at p. 441 the Madhavya.
(h) 4 Bom H. C. R. 150 0. C. J.
(i) See 5 Bom. H. C. R. 135 0. C. J.
DISTRIBUTION OF COMMON PROPERTY. 661
family (k) ; but in the branch to which it belongs, it is ancestral
estate, subject in the hands of sons to the father's debts, with the
exception of those immorally incurred, on account of the special
obligation arising from filial duty (I), but not on account of its rank-
ing as self -acquired property of 1;he father. Jagannatha says that
ancestral property, remaining in the hands of a father on a parti-
tion with his sons, retains that character for the purposes of a
partition with subsequently born sons (m), while free from obliga-
tions to those who have separated. Nor can special restrictions be
imposed on the dealing of a co-sharer with his. divided share by an
agreement made amongst the sharers at the time of partition in-
consistent with the nature of the estate taken by the co-sharer (n).
§ 5 A. 2. h. — Ancestral property, Recovered. — As regards pro-
perty recovered, the cases must be distinguished of
(1) Eecovery by a father, head of the family, and of
(2) Eecovery by another coparcener,
(a) With or without the aid of the patrimony.
(b) Of movables or of immovables.
(1) Ancestral property recovered by a father, head of a family,
ranks as self-acquired (o). This rule, however, is in the Mayukha
(k) See the case of Gavuri Devama Garu v. Raman Dora Garu, 6 M. H. C. E.
at p. 93, quoted under Digest of Vyavasthas, Chap II., sec. 11, Q. 5, p. 428;
above, p. 428; Periasami v. Periasami, L. K. 6 I. A. 61. In that case a family
estate made over by the eldest to the younger brothers was said by the Privy
Council to have passed " with of course all its incidents of impartibility and
peculiar course of descent " (ibid., at p. 75). A property renounced by an elder
brother in favour of the younger ones becomes their estate as in a partition,
though there be no general partition. See Gauri Devama's Case. The
" incidents " in these cases would depend on the family law or the political
conditions of the estate; see above, pp. 153, 174, 180, 231.
(l) Above, pp. 151, 596.
(m) Col. Dig., Book V., T. 392. Similarly under the English law, "If
parceners make a partition of their land, they are still in of their respective
shares by inheritance, though these shares are no longer held in coparcenary,
but in severalty." 1 Steph. Comm. 443. So Doe Dem CrO'Sthwaite v. Dixon,
5 A. & E. 835. And thus in Baijun Doobey v. Brij Bookun hall Awwasti, L. E.
2 I. A. 278, the Privy Council call a share obtained or ascertained and severed
in a partition " separate estate," but at the same time, " ancestral estate
derived from the father." Tenants of the united family retain their rights as
against the individual member to whom the land held by them has been assigned
in a partition of the estate, Narayan Bhivrav v. Kashi, 1. L. E. 6 Bom. 67.
See below, Book II., Vyav., Chap. I., sec. 1, Q. 5, Eemark.
(n) Venkatramana v. Brammana, 4 M. H. C. E. 345.
(o) Mit., Chap. I., sec. 5, para. 11; Stokes's H. L. B. 393.
662 HINDU LAW. [BOOK II.
qualified by a text (p) cited from Brihaspati, which imposes the
condition that such a recovery must have been made without the
aid of the ancestral property.
(2) Ancestral property recovered by another coparcener with
the aid of the patrimony becomes an accretion to the common
estate. Immovables, recovered by such a coparcener without the
aid of the patrimony, but with the acquiescence of the other co-
sharers, rank likewise as an accretion to the common property,
subject to a deduction of one-fourth for the acquirer (q). This rule
has been recognized by the Bombay High Court in Mulhari v.
Shekogi (r). It seems probable from the wording of the texts
upon which this doctrine rests, that they contemplate the cases
only of property forfeited or withdrawn from the family estate
otherwise than by voluntary and valid alienation. This view seems
to be strongly supported by the word " hrita " (that is, that which
has been taken or seized) (s), and " nashta " (that is, that which
has been lost), and " uddharet " (that is, if he rescue or win
back) (t). Though there is no explicit rule which enables a member
of a united family purchasing a portion of tho patrimony, formerly
sold, out of his. separate means, to enjoy it, as in the case of another
acquisition, free from claims to partition by his coparceners, yet
neither is any express limit set to such enjoyment, and it would
probably now be held that such property stands on the same foot-
ing as any other purchased property of his separate estate. A
contention to the contrary was abandoned in the case of Gooroo
(p) May., Chap. IV., sec. 4, para. 5; Stokes's H. L. B. 48. So Viram. Tr.
p. 74. Compare also Dayabhaga, Chap. VI., sec. 2, paras. 31—35; Stokes's
H. L. B. 285, 286; Jagannatha's Commentary, Col. Dig., Book V., T. 26;
and Smriti Chandrika, Chap. VIII., para. 28.
(q) Mit., Chap. L, sec. 4, para. 3; Stokes's H. L. B. 385; May., Chap. IV.,
sec. 7, para. 3; Stokes's H. L. B. 74. See Smriti Chandrika, Chap. VII.,
paras. 32—38; Naraganti Achammagaru v. Venkatachalapati, I. L. E. 4 Mad.
259, 260; cf. Bajaba v. Vishvanath, I. L. E. 34 Bom. 106. Ancestral property
bought by a member out of his private funds does not ipso facto become family
property. It must be shown that he intended to make it a part of the family
property.
(r) S. A. No. 534 of 1864, decided 20th September, 1864.
(s) Eoer and Montriou translate " purloined." Yajn. II. 119.
(t) In answer to Q. 585 MSS. the Sastri said that when a Vatan had been
granted to one brother, resumed in part on his death, but recovered by the
other brother, it did not become the property of the undivided family to which
he belonged.— D/iarwjar, 2Uh February, 1848. This agrees with the view taken
by the P. C. in the Shivagunga Case. Comp. the cases above, p. 154, notes (p)
and iq).
ANCESTRAL PROPERTY, RECOVERED. 668
Pershad Roy et al. v. Dehee Pershad Tewaree {v); and a case at
2 Str. H. L. 377, with the comments of Messrs. Colebrooke and
Ellis, shows that " recovered property " is of the nature of that
which should have been, but could not be, divided, owing to its
detention by strangers. The views here expressed are substantially
repeated in the case of Visalatchi Ammal v. Annasamy Sastry (w).
The introduction of the condition of acquiescence on the part of
co-sharers is due probably to the necessity of guarding them against
any underhand proceeding by one of their number (x). Eecovered
property, it has been held, does not include what is regained from
one claiming as a member of the family, but only property held
adversely by strangers; and one who, in a suit brought by him
against a stranger, purposely ignores his co-heir, is not entitled to
any extra share (y). Ancestral movables, recovered by a copar-
cener, without the use of the patrimony, but with the consent of
the co-sharers, become his separate property.
The author of the Mitakshara has quoted Manu IX. 209 in sup-
port of his view of the father's independent power over ancestral
property recovered by him. His explanation of the passage,
though differing in terms, agrees in substance with that of Manu's
Commentator Kullukabhatta. The translation of Sir W. Jones
does not correctly render the sense of Manu's words, inasmuch as
he has translated the word putraih, " with his sons " by " with his
brethren." While the family is undivided, however, the acquisi-
tions of its several members are usually made by the aid of the
common property and unite with it. Hence a presumption arises
of all the possessions of the several members being joint estate
subject to distribution like ancestral property. In Dhurm Das
Pandey v. Musst. Shama Soondri Dihiah (z), the Judicial Com-
mittee say : " It is allowed that this was a family who lived in
commensality, eating together and possessing joint property. It
is allowed that they had some joint property, and there can be no
doubt that, under these circumstances, the presumption of law is
(v) 6 C. W. K. 58 C. E.
(to) 6 M. H. C. E. 150, see also Muttu Vaduganadha Tevar v. Dora Singha
Tevar, I. L. E. 3 Mad., at p. 300, and Naraganti Achammagaru v. Venatachala-
pati, I. L. E. 4 Mad., at p. 259.
(x) 1 Str. H. L. 217.
iy) Bissessur Chuckerhutty et al. v. Seetul Chunder Chuckerhutty , 9 C. W. E.
69 C. E.
{z) 3 M. I. A., at p. 240.
664 HINDU LAW. [BOOK II.
that all the property they were in possession of was joint property,
until it was shown by evidence that one member of the family was
possessed of separate property. ' ' That this applies when the- trans-
actions of a father are in question is shown by Suraj Bunsee
Kooer's Case (a) and many others. The case is consequently
almost unknown in practice of a father's uncontrolled power being
asserted on the ground of recovery referable solely to his own
exertions or fortune.
§ 5 A. 3. — Self -acquired property. — Acquired, as distinguished
from inherited or recovered, property has a twofold character as
being the acquisition
a. Of a father, head of a family, and
h. Of any other coparcener.
§ 5 A. 3. a. — Self -acquired' property, as between a father and his
sons, includes all separate acquisitions by the father, such as a
grant of a village as an inam (b), as well as ancestral property
{a) Above, p. 568.
(b) Bahirji Tannaji v. Odatsing, R. A. No. 47 of 1871, Bom. H. C. P. J. F.
for 1872, No. 33.
The following cases connected with grants of land may be useful as showing
when the grantee has, and when he has not, a full power of disposal.
A grant to a man, his children and grandchildren, confers an absolute estate,
Tagore Case, 4 B. L. R. 182 0. C, and if to a gift are added " words restricting
the power of transfer which the law annexes to that estate, the restriction would
be rejected [as a] qualification which the law does not recognize." Tagore Case,
9 B. L. E. 395, quoted by the Judicial Committee in Bhoohan Mohini Dehya v.
Hurish Chunder Chowdrey, L. R. 5 I. A., at p. 147. (Comp. Laboulaye, Prop.
Fonce. en. Oc. 368.) As to the extent of the property conferred by a grant in
Bombay, see Waman J. Joshi v. The Collector of Thana, 6 Bom, R. 191 A. C. J.,
and Nagardas v. The Conservator of Forests, I. L. R. 4 Bom. 264; Bayaji v.
The Conservator of Forests, P. J. 1880, p. 342. In Jamna Sani v. Lakshmanrao,
Bom. H. C. P. J. 1881, p. 6, it was said that ordinarily the holder of a jaghir
or saranjam can make a valid grant only for his own life ; and the Government
having defined an estate previously granted as a saranjam, and untransferable
from the family meant to be benefited, a subsequent alienation to a stranger
was pronounced invalid as against the grantor's heirs. In Nagardas' Case
(supra) it was held that an Izafatdar's title does not necessarily involve any
proprietary right, and that even though a Khot may be a proprietor yet this is
not implied in his " Khoti " of&ce or grant, so as to make him owner of timber
growing on the village lands subject to his authority.
When a grant has once been made by the Government, or a sanad has been
granted settling the land tax under Bombay Act VII. of 1863, the executive
cannot reform or annul it, Dholsang Bhavsang v. The Collector of Kaira,
I. L. R. 4 Bom. 367. If the settlement has been made with a person not the
rightful owner, the owner is bound by it, but he may recover the property subject
SELF- ACQUIRED PROPERTY. 665
recovered (c), and property taken by inheritance, but not in the
direct male Hne of descent (d). The acquisition or recovery must
have been mad© without the aid of the family estate ; otherwise the
property will rank as ancestral (e). In the Mitakshara this quali-
fication is not distinctly drawn out. The general rule only is laid
down, that sons become by birth participators in both the property
inherited by their father and the property by him acquired (/), and
that the right of sons and grandsons in the grandfather's estate
is equal, without any express provision for aiccumulations or
to the settlement from the possessor holding the sanad as from a trustee. On
the other hand, the grantee (an inamdar) is strictly bound by the terms of his
grant from the sovereign power, see above, pp. 125, 416. Unless expressly
empowered by his grant he has not a right to enclose land used immemorially
as pasture ground by the inhabitants of a village, Vishwanath v. Mahadaji,
I. L. E. 3 Bom. 147.
In Collector of Sural v. Ghelahhoy Narandas, 9 Harr. 603, the State taking
by escheat an estate granted free of service was held bound by a mortgage
effected by the last deceased inamdar. Comp. Raja Salig Ram v. Secretary of
State, L. R. Supp. I. A. 119, 129. As to a grant by a Zamindar, see Raja
Nursingh Deb v. Roy Koylasnath, 9 M. I. A. 55. See Steele, L. C, pp. 207,
237, 269.
(c) Krishnasami v. Rajah Gopala, I. L. R. 18 Mad. 73, 83.
(d) See above, p. 655 ss.
(e) Rampershad v. Sheochurn, 10 M. I. A. 490; Tribhovandas v. Yorke Smith,
I. L. R. 21 Bom. 349; Jagmohandas v. Mangaldas, I. L. R. 10 Bom. 528; Chand
Hari Maiti v. Rajah Norendro Narain Roy, 19 Cal. W. R. 231, P. C. ; Bukshee
Bimodi Lai v. Bukshee Deokee Nundon, 19 Cal. W. R. 223. In the common
case of a purchase by the father out of funds separately acquired by himself
of property in the name of his son, the presumption is not as under the English
law of an intended advancement of the son, but of a purchase, benami {i.e.,
without his name or in another name) for the father himself, see Naginbhai
Dayabhai v. Abdula bin Nasar, 1. L. R. 6 Bom. 717. The auspicious fortune
of the son is thus sought to be attached to the acquisition, and a unity of interest
is generally recognized in feeling even when not acknowledged as a legal obliga-
tion. " By the Mitakshara law . . . the son has a vested right of inheritance in
the ancestral immovable property . . . the ancestral property is only that which
is actually inherited, and not that which has been acquired or recovered, even
though it may have been acquired from the income of the ancestral property, for
the income is the property of the tenant for life to do as he likes with it," —
the judgment, overruled at 8 C. W. R. 456 (Sudanund Mohapattur v. Soorjo-
monee Bebee), was subsequently held to be res judicata between the parties and
decisive of Chakardhur's right to dispose of acquisitions out of profits, Soorjo-
manee Dayee v. Saddanund Mohapatter, P. C. 20 C. W. R. 377; S. C, L. R.
S. I. A. 212, though the correct doctrine is upheld in Umrithnath Chowdry v.
Goureenath Chowdry et ah, 13 M. I. A. 542.
(/) Mit., Chap. I., sec. 1, pi. 27; Stokes's H. L. B. 376; sec. 6, p. 10;
ibid. 393.
666 HINDU LAW. [BOOK II.
increments of the estate. The section (4 of Chapter I.) which treats
of property not subject to partition, since it lays down no explicit
rules regarding acquisitions made by a father, might be taken as
relating only to independent or equal coparceners, such as brothers
or collaterals. But in the Mayukha, Chap. IV., sec. 4, para. 5 (g),
the text of Manu, which excludes property recovered by a
father from ancestral property, is modified by a text of Brihaspati,
which declares that such recovery must take place through the
father's own ability [and without the use of the patrimony]. The
effect would seem to extend to the case of separate acquisitions
made by the father with the aid of the ancestral estate. In
Sudanund Mohdpattur v. Bonomallee et al. (h) quoted in
Sudanund Mohapattur v. Soorjamonee Dehee (i), it was said that
ancestral property did not include that purchased out of the
income; but this has been overruled (fc).
§ 5 a. 3. h. Self -acquired property, as between coparceners
generally, includes gifts of friends, or at marriage, gains of science,
valour, and chance, obtained by one or some of the coparceners
apart from the others (I) without the use of the family
property (w). If in the acquisition of property directly gained by
ig) Stokes's H. L. B. 48.
(h) 1 Marshall, 317.
(i) 8 C. W. E. 456 C. K.
(k) C. W. E., loc. cit., and Sudanund Mohaputtur v. Bonomallee Doss, 6 ibid,
256 C. E.
(l) See Radhabai v. Nanarao, I. L. E. 3 Bom. 151. An inam resumed by
the Government and afterwards bestowed on a single member of the family
was held to be self -acquired by him, Kristniah v. R. Panakaloo, M. S. D. A.
Dec. for 1849, p. 107. This agrees with the Shivaganga Case, 9 M. I. A. 609.
In Bombay the resumption of an inam in the sense of re-imposing the land-tax
on the death of the inamdar was held not to create a new estate. The encum-
brances created by the inamdar were held still to subsist as against his repre-
sentatives, Vishnu Trimbak v. Tatia, 1 Bom. H. C. E. 22, Comp. p. 154, supra.
(m) Mit., Chap. I., sec. 4, paras. 1-15; Stokes's H. L. B. 384-7; May.,
Chap. IV., sec. 7, paras. 1-14, ibid. 73-77; Nahak Chand v. Ram Narayan,
I. L. E. 2 All. 181. Property acquired by use of inherited funds is joint, Musst.
Mooniah et al. v. Musst. Teeknoo, 7 C. W. E. 440, and from union a persump-
tion arises of all property being joint, Taruck Chunder Poddar et al. v. Jodeshur
Chunder Kondoo, 11 B. L. E. 193; Gopeekrist Gosain v. Gungapersaud Gosain,
6 M. I. A. 53 ; Neelkisto Deb v. Beerchunder Thakoor, 12 M. I. A. 540. When
two brothers lived together without paternal estate and acquired land chiefly
through capital supplied by the elder and improved it by their joint exertions,
the younger suing for a moiety was awarded one-third, Koshal Chukurwutty v.
Radhanath Chukurwutty , 1 Cal. S. D. A. Eep. 335. But conveyances in a single
name and prolonged separate enjoyment raise a presumption of separate
SELF-ACQUIRED PROPERTY. 667
science, valour, &c., the result is in a considerable proportion
evidently due to the use of the family estate, an equitable distri-
bution of such acquisition between the family and the separate
estates, should, it appears, be made (n). Such seems to be the
effect, when interpreted according to the reason of the law, of the
text of Vasishtha, cited Mit., loc. cit., para. 29, on which see
Mr. Ellis's remarks quoted at 2 Str. H. L. 383 (o). The difficulty
as to the relation of Mit., Chap. I., sec. 4, para. 29 to para.
31 (p), may be solved with Mr. Colebrook and Sir T. Strange by
regarding the former paragraph as referred to a wholly separate
acquisition, obtained by the aid of the family property, whereas
the latter refers to augmentations, blending as they accrue with
acquisition, Guracharya v. Bhimacharya, S. A. No. 223 of 1876, Bom. H. C. P.
J. F. for 1876, p. 241.
In the Dera Ghazi Khan District it is noted that gifts from a father-in-law or
maternal grandfather are excluded from partition, Panj. Gust. Law, Vol. II.,
p. 261.
With the gain by valour may be compared the Eoman law on that subject.
Gains says : " Ea quoque quae ex hostibus capiuntur naturali ratione nostra
fiunt," Lib. II., sec. 69. He links this with the doctrine of title by first
occupation. The right to the peculium castrense was specially constituted as
against the patria potestas, see Juv. Sat. XVI. 61.
(n) The distribution of property acquired by different parceners is to be in
fair proportion to their contributions of labour and capital, Krippa Sindhu
Patjoshe v. Kanhaya Acharya, 5 M. S. D. A. E. 335.
(o) Gains of science, through learning acquired while the gainer was supported
by a stranger, are separate and self- acquired property. So is a reward for any
extraordinary achievement. But all other acquisitions of an undivided coparcener
are family property. Q. 694, Poona, 17th August, 1849, and Q. 686 MSS. ; see
also 2 Str. H. L. 374. But Jagannatha says. Col. Dig., Book V., T. 346
Comm. : " The meaning is that wealth gained by superior attainment in any
art or science belongs exclusively to him who acquired it." Sir William Jones,
at 2 Str. H. L. 260, translates Manu apparently as recognizing separate property
held by an undivided coparcener, and to be inherited by his widow, as distin-
guished from the doctrine of the Dayabhaga, which makes her heir even in an
undivided brotherhood, though with a right limited to mere enjoyment. At
2 Str. H. L. 346 is a case of a member living apart and acquiring separate
property, but without any division; whom the Sastri pronounced answerable for
his brother's debt only if he had received assets. A Srotriyam grant for learned
service was pronounced descendible to the grantee's sons only, to the exclusion
of his brothers, ibid. 366. A village obtained without the use of the patrimony
was pronounced separate property, ibid. 377.
The custom of London, which prescribed a particular distribution of a
freeman's property, did not extend to his gains by the profession of chemistry
or of medicine, 1 Vern. 61, Bac. Abrt. Customs. (C).
(p) Stokes's H. L. B. 390.
HINDU LAW. [BOOK II.
the original estate (q). In Col. Dig., Book V., T. 354, 355, Jagan-
natha seems to lay down that what is acquired without any aid
at all from the patrimony is separate property; that what is
acquired with such aid, whether previous or concurrent, is partible
with the learned brothers; and that if the aid has been both pre-
vious and concurrent, the acquisitions are partible with all the
brothers. In commenting on the text of Vasishtha, Jagannatha
(T. 356) says that aid from the patrimony includes supplies pre-
viously received out of it, and under T. 359 he assumes that the
double share is in an acquisition made without using the patri-
mony concurrently or as capital (r). In Chala Condu Alasani v.
C. Ratnachalam et al. (s), the subject of the gains of science is
discussed at great length, the conclusion being that such acquisi-
tions, made by one supported and instructed at the expense of
the family, form part of the joint estate (t). In Ramasheshaiyd
Panday v. Bhagavat Panday (v), it is said that any property
acquired by a Hindu while drawing an income from the family is
joint property (w). In the case of Lukhun Chunder Dallal v.
iq) When the self-acquired property is so held that the profits blend with
those of the ancestral, the whole is to be deemed a common stock, Gooroo Chum
Doss et al. v. Goluck Money Dossee, 1 Fulton, 165, which is cited and followed
in Lakshman v. Jamnahai, I. L. E. 6 Bom. 225. Where a distinction is
possible a double share belongs to the acquirer, but this does not apply to a
manager, who is bound to devote his abilities to the interest of the family, see
above, p. 591; Lai Bahadur v. Kanhaia Lai, L. E. 34 I. A. 65; Bai Parson v.
Bai Somli, I. L. E. 36 Bom. 424.
(r) The case at 2 Str. H. L. 371 distinguished the three cases of (1) an
augmentation of the common stock, (2) separate gains by the aid of the patri-
mony, in which the acquirer takes a double share, and (3) gains independently
acquired and forming wholly separate property. " The common stock, however
improved or augmented, is to be equally divided; but if separate acquisitions
have been made to which the patrimony was instrumental the acquirer is
rewarded with a double share. Separate gains of specified sorts to effect which
the patrimony was not used would belong exclusively to the acquirer."
Colebrooke in 2 Str. H. L. 371. As to the last class, see ibid. 374.
(s) 2 M. H. C. E. 56. To the same effect see Durvasula Gangadhurudu v.
Durvasula Narasammah, 7 M. H, C. E. 47.
(t) This case is referred to in Bai Mancha v. Narotamdas, 6 Bom. H. C. E.
1 A. C. J., in which there was clearly a joint capital as the basis of acquisition
by a single coparcener.
(v) 4 M. H. C. E. 5.
(to) In Lakshman v. Jamnahai, I. L. E. 6 Bom. 225, a leading case in the
Bombay Presidency, it was laid down that the gains of science divisible amongst
members of the family when the science has been acquired at the joint expense do
not include such gains obtained by a specific profession in the learning of which
SELF- ACQUIRED PROPERTY. 669
Modhoo Mockhee Dossee (x), it was ruled that an allegation of
separate acquisition by the use of a gift must be proved, and in
Dhurm Das Pande v, Musst Shama Soondri Dehia (y), that
when property has been acquired by a coparcener in his own name,
the criterion for determining its character is the source of the
funds employed (z).
the gainer was not maintained by the co-parceners. The ordinary rudiments of
education imparted at the common expense create no right against the acquirer
any more than his ordinary subsistence. This case was followed in Krishnaji
Mahadev v. Moro Mahadev, I. L. E. 15 Bom. 32, 41, and in Allahabad in
Lachman Kuar v. Dehi Prasad, I. L. K. 20 All. 436. At 2 Str. H. L. 376,
Sutherland questions Ellis's dictum that an education at the cost of the father
makes subsequent gains divisible as family property. See also per Mitter, J.,
in Dhunoopdaree Lall v. Gunpat Lall, 10 C. W. K. 122. In PauUem Valoo v.
Pauliem Sooryah, L. E. 4 1. A., at p. 117 (S. C, I. L. E. 1 Mad. at p. 261),
the Privy Council say that the doctrine, favoured in Madras and followed in
Bombay (in Bai Manchha v. Narotamdas, 6 Bom. H. C. E. 1 A. C. J.), involves
" the somewhat startling proposition," that " if a member of a joint Hindu
family receives any education whatever from the joint funds, he becomes for
ever after incapable of acquiring by his own skill and industry any separate
property." The member might acquire full capacity by a separation, but even
without a separation his acquisitions should not, it appears, become, without
distinction, joint property. Their distribution between the joint and the separate
estates should, it would seem, be governed by the principles above set forth, as
deducible on a just construction from the Smriti. See Manu IX. 208, as quoted
in Mit., Chap. I., sec. 4, pi. 10; Stokes's H. L. B. 387; Col. Dig., Book V.,
T. 347, 348. In the same case, it was held that the education of B out of the
estate of his father A, that estate ranking as self-acquired property, was not
an instruction at the cost of the joint estate, so as to make B's property subse-
quently acquired joint as between him and his sons, C, CS C^, &c., and thus
raise a question as to the testamentary power with respect to it, exercised by
B in favour of C^, C^, &c. to the exclusion of C. According to the Mitakshara
and the Mayukha, as construed above, sec. 5a 2a. pp. 664, &c., the instruction
of B at i4's expense would entitle brothers, if he had any, to share with him in
gains directly attributable to the instruction, but it would make no difiPerence
as between B and C, G^ G^, &c., whether A's property was ancestral or self-
acquired, see Mit., Chap. I., sec. 5, pi. 3; Stokes's H. L. B. 391. The question
would be whether the acquisition of property by B was or was not substantially
founded on what he took from A, or held jointly with ^4, so as to make C, C^,
C^, &c. joint owners on A's death. See Narada, Pt. II., Chap. XIII., paras. 6,
11; Mit., Chap. I., sec. V., para. 8; Viram. Th., p. 68; the Dayabhaga,
Chap. VI., sec. 1, para. 16 note, Stokes's H. L. B. 269; Col. Dig., Book V.,
T. 354 Comm. ad fin, and T. 379 Comm. ; supra, Book II., sec. 5 A, 1a.
(x) 5 C. W. E. 278 C. E.
(y) 9 M. I. A. 229.
(z) " Unequal gains . . . using for the purpose the family property make
no difference upon partition. It must still be equal." This dictum of the
670 HINDU LAW. [BOOK II.
In Lakshman v. Jamnahai (a) it was said after a review of the
previous decision : ' ' We think that we shall be doing no violence to
the Hindu texts, but shall only be adapting them to the condi-
tion of modem Hindu society, if we hold that when they speak of
the gains of science which have been imparted at the family
expense they intend the special branch of science which is the
immediate source of the gains and not the elementary education
which is the necessary stepping-stone to the acquisition of all
science. Adopting this principle and applying it to the present
case, we find, as we have said, that there is no reason to suppose
that Dayaram acquired at Dharwar and Belgaum anything more
than a rudimentary education. We see no reason to doubt that
the knowledge of law and judicial practice which qualified him
for the post of a Judge was acquired by him in a lawyer's office
in Bombay and in the Sadar Adawlat. Assuming that the burden
of proving that this knowledge was acquired without any aid from
the family estate lies upon the respondent (though the observa-
tions of the Privy Council in Luximon Bow Sudasew v. Mullar
Row Bajee, 2 Knapp 60, tend to the opposite conclusion), we find
sufficient in the evidence, and especially in the earlier letters
written by Dayaram from Bombay, to show that Dayaram was
not receiving pecuniary aid from his father, but on the contrary-
was supplying his father with such money as he could spare."
The Court accordingly confirmed the decision of the Subordinate
Judge that Dayaram 's estate was to be regarded for purposes of
inheritance as separate and self -acquired. The decision rests
generally on the principles above set forth, and shows that
acquired property does not rank as joint where there is not really
an obligation of the acquirer to the family going beyond mere
ordinary sustenance and rudimentary education. Whether there
had been some aid from the family such as to limit Dayaram 's
right to a share double that of his brother, however, was a
question not raised, it would seem, in the case (b).
Sastri is approved by Colebrooke, 2 Str. H. L. 313, who quotes Mit., Chap. I.,
sec. 4, p. 31 (Stokes's H. L. B. 390).
(a) I. L. E. 6 Bom. 225, 243.
(h) For the presumptions which arise when amongst parceners separate
acquisition is asserted by some and denied by others, see the cases of Laxman-
rav Sadasev v, Mulharrav, 2 Kn. 60; Dhuramdas Pandey v. Musst. Shama
Soondri, 3 M. I. A., at p. 240; Gopeekrist Gosain v. Gangapersad Gosain, 6
M. I. A. 53 ; Neelkisto Deh Burmano v. Beerchundur Thakoor, 12 M. I. A. 540 ;
Bodhsing Doodhomia v. Ganesh Chundur Sen (Pr. Co.) 12 Beng. L. E. 117 ;
PROPERTY NATURALLY INDIVISIBLE. 671
§ 5 B. Property naturally indivisible. — Naturally indivisible
property is that which cannot be distributed retaining its essen-
tial characteristics (c). In the Hindu law there are enumerated
common roads or ways, tanks, wells, pasture-ground (d), heredi-
tary offices (vritti, vatan), religious and charitable dedications
(yoga-kshema), as endowments and reservoirs for travellers (e),
Amritnath Chowdry v. Gowreenath Chowdry, 13 M. I. A. 542; Tamek Chunder
Poddar v. Jodeshur Chundur Koondoo, 11 Beng. L. E. 193; Bholanath Mahta
V. Ajoodha Persad Cookul, 12 B. L. E. 336; Dinonath Shaw v. Hurrynarain
Shaw, 12 B. L. E. 349; Gohind Chundar Mookerjee v. Doorgapersad Baboo,
22 C. W. E. 248; Vishnu Vtshwanath v. Ramchandra, Bom. H. C. P. J. 1883,
p. 63. The principal cases are discussed by Scott, J., in Mooljee Lilla v.
Goculdas Valla. The learned Judge is brought back as the result to the texts
of Manu IX. 268, and the Mitakshara, Chap. I., see. IV., para. 10, already
referred to.
Parceners claiming a share in property acquired by others must prove that
the latter received aid from the paternal estate, according to Cahotty Pillai v.
Yella Pillai, 1 M. S. D. A. Dec. 148, and the burden has been similarly laid
in several of the more recent cases above referred to. But the presumption in a
united family is of continued unity of estate. See Musst. Cheetha v. Miheen
Lall. 11 M. I. A. 369, though the presumption is one easily displaced by facts
indicating a separate and substantially independent acquisition. In Musst.
Bannoo v. Kasheeram, I. L. E. 3 Cal. 316, the Judicial Committee would not
allow it to prevail, though in some property there had been an hereditary joint
estate. The circumstances of the family, it was said, rebutted the ordinary
presumption. See now Ind. Ev. Act, sees. 4, 114, and the observations of
Phear, J., at 12 Beng. L. E. 342 ss.
(c) See Ellis in 2 Str. H. L. 329.
(d) Steele, L. C. 223. Amongst the ancient Irish, the forest, bogs, and
wastes remained undivided after a general partition. So in the German Mark-
genossenschaft, the mass of the land was held jointly, while his house and
enclosure were held by the individual owner. Nathubhai v. Bai Hansgavri,
1. L. E. 36 Bom. 399; Govind v. Trimbak, I. L. E. ibid. 275.
(e) Viram. Tr. p. 249. The Dharwar Sastri (30th June 1848) says that a
Bhat's vritti and a Zamindar's vatan are alike divisible according to Brihaspati,
Q. 643 MSS. See Steele, 218, 228; Viram. Tr. p. 3, and above, p. 389. The
books of genealogies of the periodical pilgrims to places like Nasik are on a
division of the family distributed amongst the members of the priestly families,
who thenceforward have an exclusive interest in the families allotted to them.
Steele, L. C. 86. Viritti is a " right of personal service," and may belong to a
joint family, fees being divisible and service done in rotation; it is inalienable
to a stranger and cannot be attached, Ganesh v. Ramchandra, I. L. E. 10 Bom.
395 ; Mancharam v. Pranshankar, I. L. E. 6 Bom. 298. The fees received from
jajmans are divisible, in Bengal also, and females are entitled to a share,
Khedro Ojha v. Deo Ranee Kunwar, 5 Cal. W. E. 222; Becharam v. Debia, 10
Cal. W. E. 114. In Madras the right to a priestly ofi&ce with its emoluments
appears to be regarded as indivisible property. The senior member takes the
whole for life and on his death he is succeeded by the survivor holding a similar
672 HINDU LAW. [BOOK II.
clothes in use, books, tools, ornaments, vehicles, and furniture (/).
To these may be added indivisible rights arising from obli-
gations contracted towards the common ancestor, or towards the
family, whilst in a state of union {g). Vyasa includes the dwel-
ling in indivisible property (h). The Vyav. May (i) explains this
away in a very confused manner. The passages seem to point to
the sacredness under the antique law of the house and its curti-
lage (k). In the case of Mangala Dehi et al. v. Dinanath Bose (i)
position. The succession goes by seniority in the group next in rotation
according to descent. A female is not recognized as having any right, so long
at any rate as any male coparceners remain, M anally Chenna v. Vaidelinga,
I. L. E. 1 Mad. 343, 346.
(/) 2 Str. H. L. 370; Col. Dig., Book V., T. 362, 474 Comm. ; Mit., Chap. I.,
sec. 4, para. 19; May., Chap. IV., sec. 7, para. 15, Stokes's H. L. B. 77;
Mit., Chap. I., sec. 4, paras. 17 — 20; ibid. 388. In para. 20, " If they cannot
be divided, the number being unequal, they belong to the eldest brother," means
that the indivisible remainder goes to him. This is the interpretation of the
Subodhini, and is supported by the text of Manu, quoted by Vijnanesvara.
Goldstiicker (On the Deficiencies, &c.) thinks that Jones and Colebrooke were
wrong in their translation, and that in the case of an unequal number of cattle,
no partition at all could be made, but their construction is as grammatical as
that of their learned critic, and more reasonable and convenient. Mit., Chap. I.,
sec. 4, para. 19.
According to the borough-English custom the family dwelling (called astre
or hearth) was reserved to the youngest son. See Elt. Tenure of Kent, 173.
Under the ordinary law to the eldest, Glanv. VII. 3.
(g) See Colebrooke on Oblig. Art. 433; Pothier, Oblig Art. 294; Musst.
Ameeroo Nissa Bibee v. B. Otool Chunder et al., 7 C. W. E. 314 C. E. ;
Dewakuf Josee et al. v. Naroo Keshoo Goreh, Bom. Sel. Cal. 215.
(h) Col. Dig., Book V., T. 354; so also Sankha and Likhita, T. 362.
(t) Chap. VI., sec. 7, p. 21; Stokes's H. L. B. 78.
(k) The family estate, once regarded as inalienable, a quality extending even
to acquisitions by acceptance of religious gifts (see Viram. Tr. p. 99, above
p. 128), next became disposable by the joint will of all interested. In Lallubhai
V. Bai Amrit, I. L. E. 2 Bom., at p. 328, the progress from this stage through
the allowance of religious gifts to freedom of sale is traced by reference to the
Hindu authorities. When the separate performance of the family sacrifices by
brothers residing apart once became recognized as a right, and then as a duty,
the close connexion between the sacra and the estate made a law of partition
almost inevitable. Still the ancient habits and traditions made this a slow
growth. Union under the eldest (Manu IX. 106) must long have remained
the sacred type of the family, until the progress and increase of the other castes
invited the Brahmans, the sole legislators of the codes, to dispersion, and to the
encouragement of dispersion amongst their clients for the multiplication of
religious functions. It seems from such Smritis as the one quoted, Mit., Chap. I.,
sec. 1, para. 30, that the partition of the immovable patrimony was regarded,
when first allowed, rather as a distribution for use than a division of interests.
PROPERTY NATURALLY INDIVISIBLE. 673
Sir B, Peacock, C.J., refers to Katyayana, as quoted in Col. Dig.,
Book II., Chap. IV., T. 19, to show that an adopted son cannot,
To this may be ascribed some apparent contradictions of precept. Thus, not-
withstanding a partition, the concurrence of all the co-sharers, though separated,
was required for the gift or sale of any part of the ancestral lands, Steele, L. C.
239. To this may probably be traced the right of pre-emption amongst members
of the same stock recognized by some local usages of the Hindus. The right
recognized amongst Hindus in Gujarath has been referred to a Mahomedan
origin, Gordhandas v. Prankor, 6 Bom. H. C. K. 263 A. C. J., and in Bengal,
B. L. E. F. B. E. 143, but a Gujarath Sastri referred it to the prohibition
against alienation of the family estate, MS. Q. 746. See Steele, L. C, p. 211;
and comp. Tupper, Panj. Gust. Law, vol. III., p. 147.
The Mitakshara, written after the sacred and perpetual unity of the patrimony
had passed away, says that the concurrence of one separated kinsman in the
sale of his land by another is required only to prevent future dispute, but this
utilitarian reason for the continuance of the rule was obviously not the source
of it. The Smritis regard the patrimonial lands generally as indivisible. Thus
Usanas (in Mit., Chap. I., sec. 4, pi. 26, Stokes's H. L. B. 390, Smriti
Chandrika, Chap. VII., para. 44) says that land and sacrificial gains are wholly
impartible. Prajapati (para. 46) is to the same effect. (See also Smriti Chan-
drika, Chap. XII., para. 21.) He says that the assent of every coparcener is
requisite to the validity of any act touching the immovable property. Unanimity
amongst the sharers was perhaps meant by Prajapati to warrant partition and
even alienation, as Yajnavalkya also (para. 49) says, " No one can make a
partition of the inheritance. It must be enjoyed merely, not aliened by gift or
sale," and yet he lays down rules for partitions. (Yajn. II. 114, &c.) The
text of Brihaspati quoted in Mit., Chap. I., sec. 1, para. 30 (Stokes's H. L. B.
376, and Smriti Chandrika, Chap. XV., para. 3), "A single person (even
separated) never has power over immovables," though differently explained by
the modern commentators, points back to the same primitive notion. The
differences of custom which have sprung from this may be seen in Steele, L. C.
238.
The ancient rule of the Hindu Law which forbade sale but allowed mortgage
of the inheritance, Mit., Chap. I., sec. 1, para. 32, was the basis of the law of
Kanara, whereby a mortgagee who had entered on default was compelled, after
any lapse of time, to restore the property on payment of the debt with interest
and compensation for improvements. See 5th Eep. 130. So, too, the occupier
of vacant land deserted by its owner had to restore it on his return with or
without compensation for his expenditure, see Bhaskarappa v. The Collector of
North Kanara, I. L. E. 3 Bom. 626 ss. A similar law, resting on the same ideas,
is still operative in the Panjab, though there, as elsewhere, restrictions are
creeping in, see Tupper, Panj. Cust. Law, vol. III., pp. 145-160; and the same,
vol. I., pp. 93, 94; vol. II., p. 214, for the right asserted by village communities
over the common land, and vol. II., p. 8 ss., for the tribal origin of property in
land and the derivative constitution of the family and individual ownership,
contrary to Sir H. Maine, Early Hist, of Inst., pp. 77-82. Amongst the Garos
all land is held in common by a Mahari or clan. ... It can be aliened only by
common consent. Damant in Ind. Antq., vol. VIII., p. 205. In the Delhi
H.L. 43
674 HINDU LAW. [BOOK II.
by selling the family house, deprive his adopted mother of her
right to a residence in it. This was followed in Gauri v. Chand-
ramani (m), where the purchaser at an execution sale of the rights
of a nephew was successfully resisted, as to one-half of the family
territories, according to native custom, " a sharer cannot dispose of his landed
property by sale or gift nor introduce a stranger without the general acquies-
cence of the pane or thola or other division to which he belongs," his co-members
of the community having also a right of pre-emption. Mr. Fortescue's Eept. of
28th April, 1820, III. E. and J. Sel. 404. In Lahore sales of land are not
recognized, while usufructuary mortgages are common, Panj. Cust Law, vol. II.,
p. 187. The consent of townsmen and neighbours (see Col. Dig., Book II.,
Chap. IV., sec. 2, T. 183), referred to in Mit., Chap. I., sec. 1, p. 31 (Stokes's
H. L. B. 376)', may have been required on account of the joint enjoyment of the
common pasture land appendant to the holding, and of the close connection and
community of interest of the several members of the ancient village. They
were dependent on each other for many services and subject to taxation in
common. It was natural then that the relatives first and then co-villagers should
have a perferential right to vacant lands. See Proc. Beng. Soc. Sc. Assn.,
vol. I., p. 31. The consent of the Mirasdars is said by Ellis (Madras Mirasi
papers, pp. 206, 207) to be necessary for the admission of an outsider to owner-
ship either of a share in the integral property in the village or of a particular
portion of the land. The form of such assent is retained in many modern grants,
such as that under Tippoo's Government, set forth in vol. I., p. 73, of the
Evidence in the Kanara Land Case, which, it is said, is made " with the consent
of the Desais, Gavkaris, Bhavis, and Potbhavas of the village." Sales were
formerly attested in many cases by the whole village community, see Wilks,
South of India, vol. I., p. 132. See further Laveleye's Primitive Property,
p. 60; Stubbs, Const. Hist., vol. 1., pp. 95, 96; 6th Eep. on E. I. Affairs (1812),
vol. II., pp. 136, 826; and Mountst. Elphinstone's Hist, of Ind., vol. I.,
p. 126; Maine, Anc. Law, Chap. VIII., p. 263.
The endeavour to preserve the land to the family to which it was originally
allotted formed part of the polity of many of the Grecian States. The famous
Agrarian law of the Jews had the same object in view, see Milman, Hist, of the
Jews, Book v., vol. I., p. 231. The Teutonic laws generally prohibited alike
female succession, which might deprive the community of a defender, and the
alienation of the patrimony without the consent of all the sons, or as in Sweden
of all members of the family except in case of extreme necessity. Captivity was
such a case, and at a later time overwhelming debt. A right of retraction
subsisted for a year. See Maine, Anc. Law, Chap. VI., p. 198; Lex. Salica,
Ti. 62, sec. 6; Baring Gould, Germany, Past and Present, vol. I., p. 74. In
Sweden, as in India, the right of occupation of waste was at one time unrestricted
except by the liability to taxation, but this latter was in both countries expanded
into a right or claim to superior ownership; see Geiger, Hist, of Sweden,
Chap. IV. ; Bhaskarappa v. The Collector of North Kanara, I. L. E. 3 Bom. 640,
544 ss. In Norway an indefeasible right of redemption was always recognized;
Elt. Grig., p. 209.
(0 4B. L. E. 72 0. C. J.
(m) I. L. E. 1 All. 262.
PROPERTY LEGALLY IMPARTIBLE. 675
dwelling, by the widow of the judgment-debtor's uncle. And
it has since been held that the widow of an undivided Hindu
has a right to residence in the family dwelling-house and can
assert it against the purchaser of the house at a sale in execution
of a decree against another member of the family (n).
As regards clothes, furniture, vehicles, ornaments, books, and
tools, it must be understood that an equitable distribution (o) of
them or of the proceeds of their sale is sanctioned, when they are
numerous and of value, or form the sole property of the family.
As to ornaments it is said that those commonly worn by a woman
during her husband's life are not subject to partition, after his
death, by his coparceners (p), and they are expressly excluded
from partition in the husband's life by Vishnu, XVII., p. 21,
unless given in fraud of the coparceners (q). Property subject to
partition, but the existence of which was not known and which
could not therefore be included in a general partition, is, on its
discovery, to be distributed, and in the same proportion as that
actually divided (r).
§ 5 c. Property legally impartible. — Property, not naturally
indivisible, may be impartible on account of the political condi-
tion of the owners or of a local or family law governing its devolu-
tion (s). The succession to a principality is by the Hindu Law
(n) See Book I., Vyav., Chap. I., sec. 2, Q. 9; Talemand Singh v. Rukmina,
I. L. E. 3 All. 353; Parvati v. Kisaming, Bom. H. C. P. J. 1882, p. 183. See
above, p. 245. According to the custom of London and other places under the
English Law, " while the house went to the youngest heir, the chief room was
reserved as the widow's chamber." See Elt. Tenure of Kent, 42.
(o) May., loc cit., paras. 22 and 23; Stokes's H. L. B. 78-9; Mit., Chap. I.,
sec. 4, paras. 17-19; ihid. 388. Otherwise they are retained by the possessors,
allowance being made for their value; Steele, L. C. 60, 223.
(p) Viram. Transl. 250; infra, Book II., sec. 7 A 2. A widow's ornaments are
not partible amongst her husband's coparceners, Steele, L. C. 35. See above,
p. 296.
(q) See above, pp. 186, 205, 295.
(r) Steele, L. C. 60, 223.
(s) See Col. Dig., Book II., Chap. IV., T. 15 Comm. ; Maine, Anc. L. 223.
Under the Maroomakatayam law a partition requires the assent of all members
of the family, M. S. D. A. E. for 1857, p. 120. Under the English Common
Law cases arose of coparceners inheriting property, such as a fortress, a corody
uncertain, or common appendant which could not be divided. In such cases
the eldest took the impartible property and made an equivalent contribution in
money to the others. So, too, when the youngest coparcener took the whole
of the impartible property under the law of borough-English. See Bract. II. 76 ;
Co. Litt. 165a; Elt. Tenure of Kent, 172.
676 HINDU LAW. [BOOK II.
usually confined to a single line of chieftains (t). The preference
of individual members of the reigning family may be governed by
a simple rule of primogeniture (v) and exclusion of females (w) ;
it may admit of collateral representatives coming in under par-
ticular circumstances ; or a power of selection of the heir-apparent
from a larger or a smaller class may be exercised by the chief in
(t) Steele, L. C. 60, 62, 229 ; 1 Macn. H. L. 7 ; 2 Str. H. L. 328. The custom
arose, or maintained itself amidst a general change, partly from the sacred
character ascribed to the eponymous founder of a line of chieftains and his
descendants retaining power or nearly connected with those who held it ; partly,
too, under the pressure of necessities such as those which gave rise to a similar
rule in the Feudal system. Before this had become developed we find the sons
of Clovis dividing the empire (Coulanges, Hist. Inst., p. 427) under the Salic
law (Hessels and Kern, 379 ss.) like a private estate. In England, before the
Norman Conquest, the succession to the throne, though confined to a single
family, was determined, as to the individual, by election, a method which, unless
the electors as well as the person chosen belong to the princely family, is not
consonant to Hindu ideas of chieftainship. Feudal tenure required a defined
and single successor to the fief. But in Germany, where allodial patrimony was
often held along with the fief, the former was distributable as under the Hindu
law, though the latter was impartible, at least from the 14th century down-
wards. The rule of primogeniture established as to their fiefs amongst the
electors by the Golden Bull of Charles IV. was imitated generally by the
princely houses as a family law, while partition was still the general law. See
Freeman, Hist, of Norman Conquest, vol. I. 107; Maine, Early Hist, of Inst.
199 ss. ; Baring Gould, Germany, vol. I., 78, 79; Rawut Urjun Singh v. Rawut
Ghunsiam Singh, 5 M. I. A. 169; Chowdhry Chintamon Singh v. Musst.
Nowlukho Koonwari, L. R. 2 I. A. 263.
(v) Notwithstanding the almost universal acceptance of the law of equal
divisible ownership of the patrimony by several sons and their descendants,
the traces of the older system of a theoretical permanence of union under a
single head are still perceptible. See Steele, L. C. 62, 205, 215, 228, 229, 230,
375, 409, 417. The " vadilki " or eldership of a family of vatandars (hereditary
functionaries) is still often contested with great acrimony, and that, too, when
the rights or privileges annexed to the position are, according to an English
estimate, of but the most trivial value, or of no value at all. The question
between the grandson by a deceased elder son and a surviving younger son,
and between the representatives of the eldest branch and of the branch nearest
to the last holder gave rise in England and in Germany to contests like those
which have arisen in India, see above, p. 65, note (i), and Comp. Eeeves, Hist,
of Eng. Law, Chap. III. The Wars of the Eoses sprang from an analogous-
dispute. In Germany the determination of the competing rights of the elder
and the younger branch passed the skill of the lawyers and was committed to a
single combat of champions. See Glanv. by Beames, p. 158; Meyer, Inst.
Judiciaries, vol. I., p. 344; Laboul. op. cit. 420.
(w) Hiranath Koer v. Ram Narain, 9 Beng. L. R. 274; Raja Rup Singh v.
Rani Bansi, L. R. 11 I. A. 149.
PROPERTY LEGALLY IMPARTIBLE. 677
possession or after his death by a group of chiefs (x). Such rules
recognized as controlling the succession in a State are hardly to
be classed with those of the ordinary municipal law. They can
but seldom come under the cognizance of the ordinary Civil
Courts (y), the sanction requisite to enforce the decision as to a
disputed succession, an appanage, or a maintenance, being in
general an act of State. The analogy only of the ordinary law is
usually followed, because this, forming a part of the popular
consciousneiss, has moulded the natural expectations and the
standard of propriety existing in the princely family and those
connected with it. The custom of the family has equal or even
greater influence, and its enforcement by the paramount power {z)
rests ultimately on the same considerations as those which
give weight to the ordinary Hindu law, the desire to satisfy the
general sense of right (a). The usage does not affect newly
purchased zamindaries (b).
The primogeniture of the ancient Hindus was much more a
headship than an ownership excluding the other members or
branches of the family (c). The head was an administrator for all,
and a master of all, because the refinements of more recent times
had not been invented. At this stage of social development the
idea of purely individual proprietorship was but growing up
(x) As to the tribal limitations and the customs of succession in Rajputana,
see Sir A. C. Lyall's Asiatic Studies, p. 200 ss.
(y) See Rajkumar Nohodip Chundro Deh Burmun v. Rajah Bir Chundra
Manikya et al., 25 C. W. R. 404, 12 M. I. A. 523 (the Tipperah case).
(z) Mootoor Engadachellasamy Manigar v. Toomhayasamy Manigar, M. S, A.
Dec. 1849, p. 27 ; Steele, L. C. 229. The character of the grant determined the
rights as to mheritance and partition of an inam or jaghir. See Steele, L. C-
207; above, pp. 152, 174.
(a) See Neelkisto Deh. v. Beer Chunder Thakoor et al, 12 M. I. A. 523;
Maharaj Kuwar Busdev Singh v. M, Roodur Singh, 7 C. S. D. A. R. 228; Col.
Dig,, Book II., Chap. IV., sec. 1, T. 15 Comm. In Germany the property of
the nobility ' ' of the nature of a raj ' ' is subject to various special rules of descent ,
having for their object the preservation of each estate as a support for the title.
Besides primogeniture there are the rules of Majority, of Seniority, and of
Secundo and Tertio-geniture. For an explanation of these terms, the last of
which implies the enjoyment of an appanage for life by a junior member of a
family, according to a rule common in India, see Baring Gould, Germany, I. 81.
Rules analogous to those of Majority and Seniority are to be found in operation
in many States and Chieftainships.
(b) Jagunnadharow v. Kondarow, Mad. S. D. A. Dec. for 1849, p. 112;
3 Mor. Dig. 188.
(c) Above, pp. 65 ss. ; Steele, L. C. 178, 228.
678 HINDU LAW. [BOOK II.
through the separate possession of movables (d). When the
breaking-up of famihes had been received into the legal system
the former supremacy of the senior was recognized by the allow-
ance to him of a greater portion or of some special parts of the
estate, perhaps as an inducement to consent to a partition (e),
but probably also on account of the duty specially devolving on
him of maintaining the sacra (/). Precedence in public religious
ceremonies, though sometimes burdensome, is still much prized
by Hindu gentlemen, and has kept the minds of the people
familiar with the idea of supremacy in families and individuals (g)
notwithstanding the difficulty of reconciling the latter with the
doctrine of equal rights acquired by birth. For ordinary public
functions and the emoluments attending them, the generally re-
ceived principle is that of a rotation of enjoyment amongst those
entitled (h), and this affords a means of transition, through cases
where there must be some precedence, to an hereditary and
singular succession to more exalted stations (i). Both sets of
ideas are at work in regulating the customary inheritance of the
so-called " raj-es " of the present day, while the younger mem-
bers of the territorial families claim appanages as of right in
virtue of kinship {k). But in each sub-branch a general secular
precedence is conceded to the senior representative according with
his pre-eminence in nearness to the ancestor and in ceremonial
observances (I).
With such cases as we are considering may be classed for some
purposes the one relating to the confiscated estates of the late
King of Delhi, of Raja Salig Ram and others v. The Secretary of
State for India (m), where it was said: "The territories were
assigned to him for the support of his royal dignity, and the due
maintenance of himself and family in their position. If he had
died, or abdicated, his successor would have taken the property
(d) See Steele, L. C. 53, 179. Comp. Morgan, Anc. Soc., pp. 6, 628, 535.
(e) See Sir H. Maine, Early Hist, of Inst., p. 191 ss.
if) See Steele, L. C, loc. cit., 208, 218, 225.
ig) See Steele, L. C. 417.
(h) Steele, L. C. 205, 218, 229.
(t) See Col. Dig., loc. cit. ; Steele, L. C, pp. 60, 63.
(fe) Col. Dig., loc. cit. ad fin.; above, p. 256.
(l) See Steele, L. C. 217, 218, 221, 229, 413, 417.
(w) L. E. Suppl. I. A. 119, 128. The raj, in that case, -was not of course
subject to the Hindu law, but the principles relied on are equally applicable
to the estate of a Hindu raja.
PROPERTY LEGALLY IMPARTIBLE. 679
in the same way, free from all charges. It was a tenure (so far
as it was a tenure at all), durante regno, and on his deposition his
estate and interest ceased, and all charges and incumbrances
created by him out of that estate fell with the estate itself. ' ' In
the same case a letter of the Government of India is quoted with
seeming approval: " The general rule is that rent-free estates,
secured by grants from Government, are not liable for the debts
of deceased grantees. The exception is in the case of such estates
which have been confiscated, and this exception is based on the
consideration that ' the interests of justice ' require the protec-
tion of creditors from the effects of a political catastrophe which
they could not have foreseen " (n).
The rule and the exception above stated imply, however, that
there may be what is called a Raj, or an estate held after the
manner of a Raj, when there is no special political status at all (o).
In such cases the inheritance to the zamindari or other estate
resembles in general the succession to a true principality. The
question is then usually one of ' ' family custom and usage " (p) ;
and the rules of primogeniture and of exclusion of females in
favour of male collaterals may prevail under a " Kulachar " or
family custom, as to an estate that is not a " raj " even in the
popular sense (q). The appanage assigned by a chief to a cadet
member of his family and his descendants may or may not be
resumable on the death of a subsequent childless holder (r). The
(n) Ibid. 129, and infra, Book II., Vyav., Chap. III., sec. 4, Q. 3a. Steele,
L. C. 227, 237, 269.
(o) 2 Str. H. L. 329; Col. Dig., Book II., Chap. IV., T. 15 Comm. See
per Judicial Committee in Chowdhry Chintaman Singh v. Nowlukho Koonwar,
24 C. W. E., at p. 256; S. C, L. R. 2 I. A. 269.
(p) Book I., above, p. 151; Soorendronath Roy v. Musst. Heeramonee
Burmoneah, 12 M. I. A., at p. 91; Neelkisto Deb Burmono v. Beerchunder
Thakoor, ibid. 523; Raja Udaya Aditya Deb v. Jadub Lai Aditya Deb, L. R. 8
I. A. 248 ; Bhau Nanaji v. Sundrabai, 11 B. H. C. R. 249 ; Rani Sartaj Kuari v.
Rani Deoraj Kuari, L. R. 15 I. A. 51 ; Srimantu Raja Yarlegadda Mallikarjuna
V. Durga, L. R. 17 I. A. 134 ; Zemindar of Merangi v. Raja Satrucharla, L. R.
18 I. A. 45.
iq) Baboo Gunesh Dutt v. M. Moheshur Singh et ah, 6 M. I. A. 164; Bhau
Nanaji Utpat v. Sundrabai, 11 Bom. H. C. R. 249, 269; B. Beer Pertab Sahee
V. M. Rajender Pertab Sahee, 12 M. I. A. 1 ; Chowdry Chintaman Singh v.
.Musst. Nowlukho Konwari, L. R 2 I. A. 263; The Court of Wards v. R. Coomar
Deo Nundun Singh et al., 16 C. W. R. 142 C. R. ; Ekradeswar Singh v.
Bahwasin, L. R. 41 I. A. 275.
(r) Rao Bahadur Singh v. Mussts. Jawahir Kuar and Phul Kuar, L. R. 11
I. A. 75; Sonet v. Mirza, L. R. 3 I. A. 92; Ooday v. Jadub, I. L. R. 8 Cal. 199,
680 HINDU LAW. [BOOK II.
impartibility of the estate in such a case is not enough to make
the succession to it similar to that of a separate estate (s). Pro-
perty may be joint though impartible {t). It may be impartible
yet alienable (v) and liable for the father's debts (w) as assets by
descent. " Though property be impartible, yet the nearest male
member of the joint family inherits in preference to the daughters
of the last holder, as admitted in the Shivagunga Case {x), though
without effect there, as the estate was a separate acquisition (y).
The family estate may comprise partible as well as impartible pro-
perty, each following its own line of descent {z), and in such a
case a partition may be made with reference to the latter, so that
it becomes, as regards the other parceners, a separate estate in
the hands of the senior co-sharer to whom it is allotted (a),
though it remains still liable for the maintenance of the junior
members (b). This decision may be referred either to a resigna-
tion by the other members of their rights for a consideration in
the form of their several shares, or to an abandonment by mutual
agreement of the special custom of descent (c), and to a partition
accompanying it, which thenceforward makes the rights of the
P.C. ; Lakshmi v. Durga, L. K. 20 I. A. 9 ; Narain v. Lokenath, I. L. E. 7
Cal. 461.
(s) S. R. Y. Venkayamah v. S. R. Y. Boochia Venkondora, 13 M. I. A., at
p. 339; Rajah Rup Singh v. Rani Baisni, L. K. 11 I. A. 149.
(t) As said by the Privy Council in Tekaet Doorga Pershad Singh v. Tekaetnee
Doorga Kooere, L. E. 5 I. A., at pp. 152, 169. See Pariasami v. Periasami,
ibid., p. 61.
(v) Rajah Udaya Aditya Deb v. Jadub Lai, L. E. 8 I. A. 248; cf. Madras
Act, II. of 1904, which lays down certain restrictions in respect of alienation,
etc., of impartible estates.
{w) Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar , L. E. 9 I. A.
128.
ix) Katama Natchiar v. The Rajah of Shivagunga, 9 M. I. A. 539.
iy) Sheo Soondary v. Pirthee Singh, L. E. 4 I. A. 147.
(z) Rawut Urjunsing et al. v. Rawut Ghunsiam Singh, 5 M. I. A. 169.
(a) Tekaet Doorga Pershad Singh v. Takaetnee Doorga Kooere et al., 20
C. W. E. 155; S. C, L. E. 5 I. A., at p. 152.
(b) Raja Yarlagadda Malikarjuna Parasada v. Durga Prosad, L. E. 27 I. A.
151.
(c) "The custom is capable of attaching and of being destroyed." Privy
Council in Soorendronath Roy v, Musst. Heeramonee, 12 M. I. A. 91. See also
Gopal Das v. Nurotam Singh, 7 C. S. D. A. E. 195; Rajkishen v. Ramjoy, I. L.
E. 1 Cal. 186; above, pp. 151—2.
PROPERTY LEGALLY IMPARTIBLE. 681
sharers inter se those of owners of separate property (d). The
intention, however, must be distinctly expressed in order to free
the impartible estate from the established custom (e).
In Bodhrav Hanmant v. Narsinga Rav (/), the Privy Council
held that an important inam was subject to the ordinary rules of
partition. Where indeed the grant was originally made to sup-
port an office (g), Mr. Ellis said that it is not to be so distributed
as to defeat that purpose. " Does not the law," he says, " that
regards the grant of a corrody apply to these and similar per-
quisites? and has not the grantor, or he who pays, a right to see
that they are appropriated accordingly to the original intention?
. . . I have no doubt but it applies, and that similar official
perquisites, though certainly heritable, are not divisible, nor
ought they to descend by primogeniture. The most capable . . .
should be selected . . . [and] enjoy the whole perquisites " (h).
This principle is recognized by the Privy Council in Ardreshappa
bin Gadgiappa v. Guneshidap^a (i) so far as the emoluments may
(d) In Raja Bishnath Singh v. Ramchurn Mujmoadar, B. S. D. A. R. for
1850, p. 20, it was held that an eldest brother could give his younger brothers
equal rights as against himself by an acknowledgment, but that this did not
exclude a question as to the validity of an adoption by one of the juniors
according to the family law.
(e) See the case of Chintamum v. Nowlukho, cited below, I. L. R. 1 Cal., at
pp. 161, 162.
(/) 6 M. I. A. 426. In Girdharee Singh v. Koolahul Singh, 2 M. I. A., at
p. 36, a claim to a raj as impartible was held refuted by evidence of " a course
of possession and enjoyment ' ' opposed to its impartibility. An impartible raj
is not necessarily inalienable, see above, p. 154, but this cannot, of course, be
meant to imply that generally such an estate is alienable. Its alienable quality
would be made use of to effect partition contrary to the law, or still more com-
pletely to destroy the interests meant to be guarded by impartibility. See above,
p. 174, and Book I., Vyav., Chap. II., sec. 13, Q. 10, p. 434. A vritti or income
receivable for religious services is partible property, and may be even mortgaged
and sold in execution of a decree. It was held that the mortgagor's right having
been decreed to be sold the question of its liability to this process could not be
raised in execution, Sadashiv Lakshman Lalit v. Jayantihai, Bom. H. C. P. J. F.
1883, p. 27, referring to Bechardas v. Gokha, Bom. H. C. P. J. 1882, p. 379,
and Prannath Paurey v. Sri Mangula Dehia, 5 C. W. E. 176 C. E. Comp.
UkooT Doss's Case, supra, p. 185, note (o). For the mode of distribution, see
Steele, p. 85. That religious grants are generally inalienable, see Steele, L. C.
206, 207, 237, 441, and above, p. 198. A devasthan never reverts to the
Government, ibid. 235.
(g) See above, Book I., pp. 180, 184.
(h) 2 Str. H. L. 364.
(t) L. R. 7 I. A. 162.
682 HINDU LAW. [BOOK II.
be annexed by any law to the office (k). A saranjam is usually
impartible. It is attended with an obligation to maintain the
younger members of the family. A pension substituted for it
has the same legal character (I).
In many cases, temple allowances are hereditary and
divisible (m), though sometimes subject to special rules of
descent (n), or divisible in enjoyment subject to the charge for
management which is indivisible (o). Ancestral property made
subject to a trust for an idol was pronounced partible subject to
the trust (p). On the other hand, a vatan property, found to be
impartible according to the family custom, was held not to have
become partible by the cessation of the official functions with
which it had formerly been connected {q). What determines the
rights in partition as by descent in each case is the family custom,
where, according to that custom as clearly proved, a divergence
from the ordinary law has become established (r). Such a family
custom allotting certain portions of a Zamindari to the junior
members does not render savings and accumulations made by
those members joint property (s).
A family cannot make a custom for itself in opposition to the
general law of the country, according to Baswantrav v.
Mantappa (t). But where the family is found to have been
(k) Ibid. 167.
(l) Ramchandar v. Sakharam, I. L. E. 2 Bom. 346; above, pp. 180, 256. A
Saranjam may originally have been partible or made so by family usage, Mad-
havrav v. Atmaram, I. L. E. 15 Bom. 519. Lands leased by the Government
to the family are partible, Dattatraya v. Mahadaji, I. L. E. 16 Bom. 528. So
are Babuana grants, Lalitswar v. Bhaheswar, I. L. E. 35 Cal. 823.
(m) 2 Str. H. L. 368.
(n) Bhau Nanaji v. Sundrahai, 11 Bom. H. C. E. 249.
(o) 1 Str. H. L. 210.
(p) Ram Coomar Pal v. Jogendranath Pal, I. L. E. 4 Cal. 56.
iq) Savitriava et al. v. Anandrav, E. A. No. 24 of 1874, Bom. H. C. P. J. F.
for 1876, p. 132. See Timangravda v. Rangangavda, Bom. H. C. P. J. 1878,
p. 240.
(r) A document containing a statement of a family custom was construed
extensively so as to include the whole class indicated by specification of particular
instances of the nearest male collaterals as heirs to a Zamindar who should die
childless, Chowdry Chintarnun Singh v. Musst. Nowlukho Konwari, L. E. 2
I. A. 263.
(s) C. Hurreehur Pershad Doss v. Gocoolannund Doss, 17 C. W. E. 129;
Ekradeswar Singh v. Bahuasin, L. E. 41 I. A. 275.
it) 1 Bom. H. C. E. Appx. xlii.
PROPERTY LEGALLY IMPARTIBLE. 683
governed as to its property by a custom which has been sub-
mitted to as compulsory, that custom is itself law {v), though
it is extremely difficult to establish such a custom {w). It is more
readily admitted where the custom is found to extend to a con-
siderable class of the community. Thus in Shidoji Rav v. Naikoji
Rav (jc), the Court says, " We find a general usage amongst a
large and important class of the community of dispensing with
actual partition and providing for the maintenance of the family
by special arrangements varying in different families, the general
character of which, however, is the vesting of the family property
principally in the representative of the elder branch, subject to
the support of the other members " (y), and as to such a custom,
that it " is one which, if clearly proved, should be allowed to
displace the plaintiff's right to partition under the general law."
The District Judge finding the custom proved for the particular
family was to determine what provision by way of maintenance
was to be made for the plaintiff, who had sued for a partition {z).
(v) Sorendronath Roy v. Musst. Heeramonee, 12 M. I. A. 91. Comp.
Abraham v. Abraham, 9 M. I. A. 195, and Timangravda v. Rangangavda,
Bom. H. C. P. J. 1878, p. 240; Mathura Naikin v. Esu Naikin, I. L. E. 4 Bom.,
at pp. 562, 573.
(w) Icharam v. Ganpatram, S. A. No. 294 of 1871, Bom. H. C. P. J. F. for
1873, p. 169.
(x) 10 Bom. H. C. R. 228.
iy) See Book I., above, pp. 254, 256.
(z) Comp. Laboulaye, op. cit. 368. In cases of the kind here considered the
law of descent is determined by the personal status of those concerned. The
special rule does not adhere to the land itself independently of the hands in which
it is held. Under the English Law a special quality as to descent is deemed
inherent in some lands, or rather the proprietary relation to them. Thus a
manor given first in frankalmoigne and afterwards by knight service was held
to be still gavelkind. See Elt. Tenure of Kent, 263, 377. But this notion,
though sometimes referred to in the Courts, is strange to the Hindu Law. (See
Pariasami v. Periasami, L. R. 6 I. A., at p. 76, and the instances at Nort.
L. C. 278, and comp. Col. Dig., Book II., Chap. IV., sec. 1, T. 15, Comm.) A
Zamindari or Vatan once effectively aliened or even divided is freed from any
special rule of descent. It is not impartibilis ratione terrae, as gavelkind estab-
lished by custom before the Conquest made land in Kent, partibilis ratione terrae.
See Bract. 374 a. In such instances as the Hunsapore Case (12 M. I. A. 1) and
the Shivagunga Case, the fact that an estate was assigned to a branch of a
family notf entitled in the regular course of law was said not to change its
previous impartible character (Mutta Vaduganadha Tevar v. Dorasingha Tevar,
L. R. 8 1. A., at p. 116), but in both cases the new grantees from Government
were of the proprietary family and subject to its custom as to any estate to
684 HINDU 1.AW. [BOOK II.
As regards hereditary offices and their emoluments in the
Bombay Presidency (a), these are now regulated by positive enact-
ments of the Legislature. See Bombay Act III. of 1874, by which
a prohibition is imposed on Vatan property's leaving the family of
the office-holders, and provisions are made for placing it under the
control of the Collector. Subject to this, however, the right of
the eldest member of a Patil family to officiate, as it is the usage
of a large number of families, is regarded as " usage of the
country," which by sec. 26 of Keg. 4 of 1827 our Courts are bound
to recognize and enforce (b). In the case of Bhagdari and Nar-
vadari holdings in Gujarath the Legislature has provided against
subdivision or separation of the house from the holding (c), but
without any rule as to inheritance or partition. These are left
to the Hindu law and custom (d).
IV. — Liabilities on Inheritance.
§ 6. The liabilities or charges on the common property, distri-
butable on division, include the following :
which that custom extended. Such cases as these are to be distinguished from
those like Raja Nilmoney Singh v. Bukram Singh (L. K. 9 I. A. 104), in which
lands are held as a remuneration for service for the maintenance of which they
have been conferred, or a grant has been taken at a reduced land-tax in con-
sideration of service to be rendered. These may be impartible on account of their
attendant condition of service, either wholly, or without the approval of the
Government. They may be inalienable either absolutely, or in a qualified way
allowing an alienation of part or for a life, or subject to particular fiscal condi-
tions, or as to the persons of the alienees. These conditions and qualifications
may be found in the case of vatans in Bombay. A jaghir or saranjam is usually
impartible, and the succession is according to primogeniture; Ramchandra
Mantri v. Venkatrav Mantri, I. L. K. 6 Bom. 598; above, pp. 175, 179.
(a) See above, Book I., p. 175.
(h) Sanganbusapa v. Sangapa, Bom. H. C. P. J. 1879, p. 257. Comp. infra,
Book II., Vyav., Chap. III., sec. 4, Q. 3; and Book II., Vyav., Chap. II., sec. 1,
Q. 6.
(c) See Bom. Act V. of 1862.
(d) See Bhai Shanker v. The Collector of Kaira, I, L. E. 5 Bom. 77 ; Pranjivan
Dayaram v. Bai Rev a, ihid. 482.
The customary law of the castes preserves many restrictions on the disposal of
the patrimonial lands. See Steele, L. C, pp. 429, 432, Even after a partition
in many castes the interest of the relatives is thought to prevent an alienation
or incumbrance without their assent signified by attestation, ihid. In many
the succession of a daughter is not admitted in competition with separated
brothers and uncles, ihid. 424 ss. ; as some of the Madras customs exclude even
the widow, 2 Str. H. L. 163.
LIABILITIES ON INHERITANCE. 686
A. Debts (e), for which the coparceners at large are liable,
must, in general, have been incurred before partition, by a
father or other managing member of the family, for the
common benefit (/).
B. Provision must be made for relations of the coparcener
entitled tO' a portion or maintenance.
(e) Compound interest may be stipulated for and recovered under the Hindu
law, Ramchandra and others v. Lalsha, Bom. H. C. P. J. 1883, p. 45 ; Col. Dig.,
Book I., T. 49 Comm. ; Steele, L. C. 72. The rules of the Hindu law on this
subject are much more reasonable than those of the Roman law, which in some
measure still prevail in the English law. The maximum of interest recoverable
on an ordinary loan is a sum equal to the principal ; on loans of grain and other
articles different limits are prescribed. See Steele, L. C, pp. 266 ss. When
interest has accumulated to the amount of the principal, it is to be turned into
principal by a new account, or by a fresh transaction, but to this there is no
objection; Steele, L. C. 265; Vyav. May., Chap. V., sec. I. ; Col. Dig., Book I.,
T. 69, 255 ss. As to the assignment of obligations, ibid. T. 49, and Book II.,
Chap. IV., T. 27. As to dealing with mortgaged property. Book I., T. 117;
Book II., Chap. IV., T. 28; Vivada Chint. Trans, pp. 73, 76, 316. See now the
Indian Contr. Act, IX. of 1872.
(/) May., Chap. IV., sec. 6, paras. 1, 2; Stokes's H. L. B. 72; Chap. V.,
sec. 4, para. 20; ibid. 124. The debt of a father is a charge generally, as far as
his sons are concerned, though not incurred for the common benefit. Narada,
Pt. I., Chap. III., paras. 5, 6. See Suraj Bunsee Koer v. Sheo Prasad Sing,
L. R. 6 I. A. 88; and Laljee Sahoy v. Fakeerchand, I. L. R. 6 Cal. 135;
Narayanrav v. Balkrishna, Bom. H. C. P. J. 1881, p. 293; Muttayan Chetti v.
Sivagiri Zamindar, I. L. R. 3 Mad., at p. 381; Steele, L. C. 266; and above,
pp. 164 ss. 692 ss. But the estate is not so hypothecated, without a special lien,
for the father's debt, as to prevent the son or other heir disposing of it and
giving a good title for valuable consideration, Jamiyatram v. Parbhudas, 9 Bom.
H. C. R. 116; Sheshigiri Shanbhok v. Gungoli Abboo Saiba, S. A. No. 88 of
1873, Bom. H. C. P. J. F. for 1873, p. 31. In Bheknarain Singh et al. v. Januk
Singh, I. L. R. 2 Cal. 438, 443, White, J., says : " The liability of a son for
the debts of his deceased father under Hindu law appears to me to be a distinct
question from the right of a father in his life-time to charge the interest of the
infant sons in the joint ancestral immovable estate with the payment of a debt.
. . . There seems to be no essential difference between the position of the father
when dealing with those interests during the minority of his sons, and the
position of a mother when dealing as guardian and manager of her infant son's
estate." See Narayan Acharya v. Narso Krishna et al., I. L. R. 1 Bom. 262,
and the cases there referred to ; the texts referred to above, p. 698, and pp. 75,
161. The funeral expenses of a deceased Hindu are a charge on the family
property, Sadashiv Bhasker v. Dhakubai, I. L. R. 5 Bom. 461. A widow's
subsistence is sometimes deemed by the Sastris a charge preferable to any other
debt, as in the case at 2 Str. H. L. 280, but this opinion is not followed; see
above, pp. 91, 94, 251. The widow's dower is preferred to the claim of the
usurer by the 11th Art. of Magna Charta, see Stubbs, Docts. &c., p. 290.
686 HINDU LAW. [BOOK II.
A. Debts (ff). — The Hindu Law lays down broadly that sons
and grandsons shall discharge the obligations of their ances-
tors (h), except where they have been contracted for immoral
purposes (i), and this duty is not altered by a partition amongst
the sons. In the case of Unnoda Soonduree Dassee v. Oodhuh-
nath Roy (k), three brothers had separated while a decree against
their father remained unsatisfied. In execution the shares of two
of the brothers were sold. It was held that the excess, beyond
two- thirds of the amount of the decree, could be recovered by the
two brothers from the share of the third, even though this had
(g) A father's promises are looked on as binding unless the performance of
them would prevent the fulfilment of some still more sacred duty. His dying
directions as to charities within reasonable limits must be obeyed. These rank
as testamentary dispositions. See Steele, L. C, pp. 404, 429. But the Courts
will not enforce either of these obligations except subject to the conditions of
the Statute law where that is in force. See above, pp. 203, 204, 219; Steele,
L. C. 178, 233, 238.
(h) Vishnu, Tr. p. 45; May., Chap. V., sec. 4, para. 12; Stokes's H. L. B.
122; Umrootram Byragee v. Narayandas Ruseekdas, 2 Borr. 223; Ram Narain
Lai v. Bhawani Prasad, I. L. E. 3 All. 444, 445; Laljee SaJioy v. Fakeerchand
I. L. E. 6 Cal. 135 ; (Mitakshara Law), 1 Str. H. L. 167 ; 2 ibid. 274, 277, 477 ;
Col. on Obligations, Chap. II. 61; Smriti Chandrika, Chap. II., sec. 2, paras.
20, 24; Col. Dig., Book I., T. 167; Steele, L. C. 265, 266, 409.
It is assumed here that the father's " kriya " or funeral ceremonies have been
performed or provided for. For these all the sons are liable, though their rights
are not conditional, Steele, L. C, pp. 226, 414 ss. ; and they should act together,
see above, pp. 663, 564; Steele, L. C. 404, 413. The obligation of providing for
the father's debts is limited by the qualification " at least for those incurred in
necessary expenses of the family," Steele, L. C, pp. 57, 217; but this has been
enlarged by the Courts. See above, pp. 76, 156, 204, 208, 682, 587, 694.
If valid incumbrances have been created by the father as the manager, these
will, of course, form a deduction from the estate to be distributed. See above,
pp. 668, 590, 692 ss. In the case of mortgages, which are usually accompanied
by possession, the mortgaged portion is frequently preserved for future partition.
Otherwise it is allotted at a valuation of the equity of redemption to the share
of one of the parceners. See above, sec. 4 e; comp. Steele, L. C, p. 218. The
right of the managing member to mortgage and even to sell the estate of the
family to relieve its difficulties is widely admitted by the customary law. See
Steele, L. C, p. 398. Hence the presumption in favour of his transactions. In
Ev. Act, I. of 1872, sees. 114, 116.
(t) May., loc. cit., para. 15; Stokes's H. L. B. 122. "The pious obligation
of a son to pay his father's debts is confined to debts contracted for moral pur-
poses." Jettyapa v. Laximaya, Bom. H. C. P. J. 1883, p. 87. See above,
pp. 690, 691, 696, 597; Sripat Singh Dugar v. Maharajah Sir Prodyot Kumar
Tagore, L. E. 44 I. A. 1.
(k) 11 C. W. E. 125 C. E.
LIABILITIES ON INHERITANCE. 687
passed to a stranger, by a sale made before the execution was
levied (i). It may be doubted perhaps whether this decision and
that referred to in note (d) at p. 585 are reconcilable in
principle (m). In the Bombay Presidency, the liability has been
limited by Bombay Act VII. of 1866, under which an heir is
responsible only to the extent of the assets received by him (n) ;
and his property cannot perhaps be aliened or encumbered by the
father, except for good reasons into which the encumbrancer is
bound to inquire (o). The tendency of the decisions, however, has
been to extend the father's power of disposal and incumbrance
as against his sons (p).
In the case of a united family consisting only of brothers or
collaterals, it has been laid down, that the presumption usually
arises of a debt incurred by a managing member being for the
benefit of the family (q), but that in the case of a minor
coparcener's interests being affected, the creditor, seeking to
enforce the liability, must prove that it was bond fide incurred by
the manager or at least that there were good grounds for
(1) See Col. Dig., Book I., T. 182.
(m) The law as to a single coparcener's alienation, and a creditor's sale in
execution, are discussed above, pp. 687 ss. See Deendyal Loll v. Jugdeep
Narain Singh, L. R. 4 I. A. 247 ; Suraj Bunsi Koer v. Sheo Prasad Singh, L. R.
6 I. A. 88, 101 ; Lakshman Dada Naik v. Ramchandra Dada Naik, L. R. 7 I. A.
181, 195; Babaji Sakhoji v. Ramshet et al., 2 Bom. H. C. R. 23. The decisions
have been influenced by suspected collusion, which, however, is not to be taken as
having been a ground of decision in GirdharilaVs Case, as said by the Judicial
Committee in Muttayan Chettiar's Case, L. R. 9 I. A. 128 ; Balmokund et al. v.
Jhoona Lall, N. W. P. S. D. A. R. for 1857, page 14; Musst. Kooldeep Koer
et al. V. Runjeet Singh et al., 24 C. W. R. 231; Sheo Pershad Singh et al. v.
Musst. Soorjhunsee Koer, ibid. 281; Burton Singh v. Ram Purmessur Singh
et al, ibid. 364.
(n) See above, pp. 80, 165. Lallu v. Motiram, I. L. R. 13 Bom. 65. Decree
to be given against the son, though it could not be enforced for want of assets
in his hands.
(o) See Narain Singh v. Pertum Singh et al., 11 Beng. L. R. 397; S. C,
20 C. W. R. 192 ; Modhoo Dyal Singh v. Goolbar Singh et al., 9 ibid. 511 C. R. ;
Brojo Kishore Gujendar v. Huree Kishen Doss et al., 10 ibid. 58 C. R., as com-
pared with Kanto Lall et al. v. Girdhari Lall et al., 9 C. W. R. 471 C. R.,
reversed in P. C, L. R. 1 I. A. 321; Hari v. Lakshman, I. L. R. 5 Bom. 614,
618. Above, pp. 572 ss. Sripat Singh Dugar v. Maharajah Sir Prodyot Kumar
Tagore, L. R. 44 I. A. 1.
(p) See above, pp. 76, 166, 204, 599.
iq) Babaji v. Krishnaji, I. L. R. 2 Bom. 666; Vrijbhukandas v. Kirparam,
Bom. H. C. P. J. 1879, p. 263.
HINDU LAW. [BOOK II.
supposing it to have so been incurred (r). Under the Bombay Act
above quoted, sec. 5, the liability of a coparcener, as to debts
contracted before he was twenty-one years of age, is limited to
the amount of the portion of the common property received by
him. Even when the other coparceners are adults, charges in-
curred by the manager are binding, except as against him, only
when incurred for the needs of the imited family, or with the
assent, express or implied, of its members (s).
For a debt incurred by any member of the family under the
pressure of distress, all members are liable {t), and the property
even after partition, but not for a debt incurred needlessly or for
purposes not constituting a duty, which, as a member of the
family, the debtor was bound to discharge under the circum-
(r) See above, pp. 568, 578, 590, 592. But in Chamaili Kuar v. Ram Prasad,
I. L. K. 2 All. 267, good faith was held not to protect a purchaser of property
sold for immoral purposes even by a father.
(s) 1 Str. H. L. 199; 2 ibid. 344, 434, 457; Col. Dig., Book I., Chap. V.,
T. 180 8s. ; Book II., Chap. IV., T. 54, Comm. sub fin. ; above, p. 590; C. Volum
Comara V encatachella v. R. Rungasaiomy, 8 M. I. A., at p. 323; Miller v.
Ranganath, I. L. K. 12 Cal. 389, 399 ; Sheo v. Jaddo Kunwar, L. K. 41 1. A. 216 ;
Doulat Ram's Case, L. E. 14 I. A. 187; Hari Vithal v. Jairam, I. L. E.
14 Bom. 597. A member defrauded by the contract of a manager with a third
party cognizant of the fraud may have the contract rescinded, Ravji Janardan
V. Gangadharbhat, I. L. E. 4 Bom. 29, though generally bound by his dealings
and under circumstances by decrees against him, Bhimasha v. Ramchandrasha,
Bom. H. C. P. J. F. for 1878, p. 286; Annaya v. Hoskeri Ramappa, Bom.
H. C. P. J. F. for 1875, p. 75; Upooroop Teioary v. Lalla Bandhjee, 1. L. E.
6 Cal. at p. 753 (see above, pp. 590 ss. ; Steele, L .C. 209.) At Calcutta it seems
to have been intimated that the question of the propriety of the alienation arises
only when infants' shares have been disposed of, and as to their shares, since
as regards those of adult members their assent is indispensable, KamesJiwar
Pershad v. Run Bahadur Singh, I. L. E. 6 Cal. 843; and in all cases due inquiry
must be made by a purchaser or incumbrancer of the family property. For
Bombay the general liability for a manager's acts is asserted in Samalbhai
Nathabhai v. Someshvar Mangal Harkisan, I. L. E. 5 Bom. 39. The rights of
a decree-holder for the father's debts were preferred to those of a decree-holder
for the debts of the owner himself, in Gunga Narain v. Umesh Chunder Bose
et al., C. W. E. for 1864, p. 277.
(t) May., Chap. V., sec. 4, para. 20; Stokes's H. L. B. 154; Col. Dig.,
Book v.. Chap. VI., T. 373, Comm. ad. fin. See also under the three preceding
texts; Book I., Chap. V., T. 181, 193, 194; and 1 Str. H. L. 276. See also
Mahada v. Narain Mahadeo, 3 Morris, 346; Sadabart Prasad Sahu v. Foolbash
Koer et al., 3 B. L. E. 31 F. B. E. ; Mahabeer Persad v. Ramyah Singh et al.,
12 B. L. E. 90; and above, p. 588. On the same principle a mortgage or sale
of the common estate by an ordinary member, if made to meet some pressing
family exigency, is generally recognized as valid by the customary law, see
Steele, L. C, pp. 54, 210, 399.
LIABILITIES ON INHERITANCE. 689
stances [v). If a member of the family owes to the estate a debt
barred by limitation this may still be made a deduction from his
share in the gross accumulations {w).
§ 6 B. Provisions for reldtions, &c. — Subject to provision for
the debts for which the joint estate is liable (x), certain relations,
though not themselves entitled to definite aliquot shares of the
common property, even when a partition is made, are yet entitled,
while the family is united, to maintenance or provision by way
of marriage portion, and this right continues to subsist, notwith-
standing an agreement for partition amongst the co-sharers (y).
To this class belong —
1. All persons by connexion entitled but by some defect dis-
qualified from inheriting, their wives, daughters, and
disqualified sons (z).
2. Female relations not entitled to a specific share.
(d) See above, pp. 161, 164, 166.
(w) Lokenath Mullick v. Odoychurn Mullick, I. L. E. 7 Cal. 644.
(x) Lakshman Ramchandra v. Satyahhamahai, I. L. K. 2 Bom. 494; Damodar
V. Bai Meva, Bom. H. C. P. J. 1882, p. 398.
(y) As to the person disqualified " if there happen to be no property, his
relatives must still afford him maintenance," Borr. Collection, Book F. suh init.
Broach Brahmans. So amongst Sonis, ibid. Sheet 22 ; Salvee, Sheet 43. " Sons
and others, who by reason of infirmity, &c., are disqualified from taking the
share in an inheritance, which would otherwise come to them, are directed to be
maintained by those to whom their shares thus go over, and a direction of this
kind, given by the lawgiver, when prescribing the mode and condition of inherit-
ing, is, I think, rightly construed as amounting to the creation of a charge upon
the inheritance." Phear, J., giving the judgment of himself, Jackson, and
Hobhouse, JJ., in Khetramani Dossee v. Kasheenath Dos, at 10 C. W. R.
97 F. B. S. C, 2 B. L. R., A. C. J., at p. 62. Their right, however, is simply
one of maintenance. See the Smriti Chandrika, Chap. V., para. 20. The same
term " bhartvyam " is used by Yajnavalkya to signify their claim and the claim
of their wives, and the same verb " bharane " is used to express the right to
support of a deceased coparcener's widow in Narada, Pt. II., Chap. XIII.,
para. 28. See as to a widow's and mother's right 2 Str. H. L. 292, 294; above,
pp. 163, 227, 241, 250. If the father is superseded as manager on account of
misconduct or incompetence, his maintenance must be provided for by the
managing member. This remains a charge on the property, for which, like the
mother's subsistence and the funeral expenses of both the sons, are bound to
make a reserve in any subsequent partition before the necessity has passed away ;
Steele, L. C, pp. 208, 404, 405, 413.
Should the sons or other near relatives fail to perform the funeral ceremonies
of the deceased, they may be put out of caste. But the non-performance does not
destroy the right of inheritance, nor does performance by a more distant relative
give him a preference over a nearer one; Steele, L. C, pp. 413 ss.
(z) See Digest of Vyavasthas, Chap. VI., sec. 3 h, Q. 3, above, pp. 551.
H.L. 44
690 HINDU LAW. [BOOK II.
§ 6 B. 1. Kegarding the former, see Book I., 141, 241,
and above, p. 689, note (?/). The Smriti Chandrika, Chap. V.,
paras. 24, 25, says that the obhgation of support is avoided by not
taking the disqualified person's share (a), but as to this see above,
pp. 272, 242. In order to create a new title in favour of a dis-
qualified person by recognition of his right to succeed to his
share, a clear intention to waive the rights accruing from such
incapacity must be proved and will not be inferred from acts
which may have been done out of kindness and affection (b). It
will have been seen that the wives and widows of members
equally with the members themselves who could take no share in
the common estate are held entitled to maintenance by the co-
members in virtue of the membership of Buch women in their
family of marriage (c). This illustrates the statement in Book I.,
above, p. 251.
§ 6 B. 2. Female relations, not entitled to a specific share, but
to maintenance, are widows of predeceased sons and other
For the cases of exclusion from sharing the patrimony under the customary
law of particular castes, see Steele, L. C, pp. 224, 411. The many excep-
tions admitted to the harsh rules of exclusion mark a gradual abandonment
of those rules of the archaic law which can least be reconciled with the dictates
of natural sympathy. Comp. Steele, L. C. 234, 235. That the continuation of
the family rites and the inheritance were in ancient law regarded as essentially
connected, see Manu, IX., 142, and the Commentary; Vyav. May., Chap. TV.,
sec. 6, paras. 21, 22; Stokes's H. L. B. 65; sec. 11, para. 8; Stokes's H. L. B.
109; Brihaspati declares the vicious son liable to exclusion, since the patrimony
" is declared to belong to those kinsmen who offer funeral oblations to the
deceased and are virtuous." It is, however, an inversion of the proper order of
ideas to conceive the right to sacrifice to a deceased as a source of the right to
succeed to his estate. See above, p. 689, note (y) ; Steele, L. C. 226. The right
to succeed resting on consanguinity, see above, pp. 59, 62, takes with it the duty
of sacrifice with a more or less definite condition of defeasance in the event of
failure or incapacity to perform the duty, but the duty subsists though there
be no property at all (Vishnu XV. 43), and the right arises to the heir
immediately on the death of the owner, not mediately, through the celebration
of the Sraddhs or the right to celebrate them, except perhaps where a
defeasance has occurred or the heirship has been renounced by the person
entitled.
(a) Brethren who have retired from the world take no share. Eunuchs and
madmen excluded must be provided with maintenance; Vasishtha, Chap. XVII.,
paras. 27, 28. So also idiots, cripples, and those afflicted with apparently
incurable and disabling disease; Narada, Pt. II., Chap. XIII., para. 22.
(b) Lala Muddun Gopal v. Khikhinda Koer, L. E, 18 I. A. 9.
(c) Mit., Chap. II., sec. 10, para. 14. Failing the husband's family, a
widow's brothers support her; Steele, L. C. 215.
LIABILITIES ON INHERITANCE. 691
descendants (unseparated) of the common ancestor (d), and
daughters of such persons, in case of their having left no sons (e).
Such daughters are also entitled to a marriage portion (/). This
last rule regarding daughters, though not given explicitly for
undivided coparceners by the Hindu lawyers, may be deduced from
the injunction given to reunited coparceners at May., Chap. IV.,
sec. 9, para. 22 (g), Mit., Chap. II., sec. I., pi. 20 (h), and from
that given to tho relations of persons disabled from inheriting, to
maintain and to marry the daughters of such persons, Mit., Chap.
II., sec. 10, para. 12 (i). Even concubines are entitled to main-
(d) The disposal of a widow is one of the duties cast on the nearest relative
of her deceased husband. (Vasishtha, XVII. 66.) Narada says he may
appoint her to a kinsman (viniyog). In the Vyav. May., Chap. IV., sec. IV.,
paras. 41, 44, and the Viramitrodaya (Transl., p. 105 ss.) the begetting of a
son by this agency (a Kshetraja) is provided for as though it still formed part
of the jural system. This can hardly have been the case, but the Mitakshara
gives him the second place amongst the subsidiary sons, the appointed daughter's
son (putrika-putra) being assigned the first.
The interest of the brethren in their brother's wife under the ancient law
has been referred to above, p. 394 ss.
(e) The daughter of a deceased coparcener must be maintained. See above,
p. 469; May., Chap. IV., sec. 8, para. 6; Stokes's H. L. B. 85; ibid., sec. 9,
para. 22; Stokes's H. L. B. 97; Mit., Chap. II., sec. 1, paras. 7 'and 20;
Stokes's H. L. B. 429, 433; Jykowur et al. v. Musst. Bliaotee, N. W. P. Sel.
Ca. for 1863, p. 613. See Narada, Pt. II., Chap. XIII., and as cited by the
Viramitrodaya, Transl., p. 255; Digest of Vyavasthas, Chap. II., sec. 3, Q. 14,
p. 384. See above, ihid., Chap. II., sec. 1, Q. 17, p. 345; ibid., Chap. II.,
sec. 6 A, Q. 27, p. 386; ibid., Chap. II., sec. 7, Q. 10, p. 411. In some castes
provision has to be made by a reserve for an indigent widowed sister residing
with the family; Steele, L. C, p. 405. Comp. above, pp. 227, 234, 239.
if) Steele, L. C, 233, 234.
ig) Stokes's H. L. B., p. 97.
(h) Stokes's H. L. B., p. 433.
(t) Stokes's H. L. B., p. 467. The marriage expenses of boys and girls of
the family are to be provided for by a reserve for the purpose in a partition,
Steele, L. C, pp. 404, 422; see Narada, Pt. II., Chap. XIII., para. 33. A
present made by a deceased father is excluded from partition, see above, p. 207,
and comp. Steele, L. C, p. 424, Narada, Pt. II., Chap. XIII., para. 6.
In the case of Laroo v. Manickchund Shajee, at 1 Borr. 461, there being a
son initiated and one uninitiated, by different mothers, and a daughter, it was
held that the initiation of the son should take place at the cost of the estate,
that the daughter should have a portion of J of J = ^ of the property, and
that the remainder should be evenly divided between the half-brothers, each of
whom was to maintain his own mother, Mit., Chap. I., sec. 7, pi. 3, 4, 6, 7;
Stokes's H. L. B. 398-9.
The property for partition was in one case pronounced subject to the following
charges :
692 HINDU LAW. [BOOK II.
tenanoe out of an hereditary pension (k). A widowed sister, left
destitute by her husband, must be provided for by the widows of
the deceased in a distribution of his property (l).
The rule that all widows of predeceased coparceners, though
not entitled to a share on partition, have a claim to maintenance
as against the estate (m), which is supported by the analogy of
the rules regarding wives of persons disqualified from inherit-
ing (n.), has been laid down by Sir E. Couch, C.J., in Rama-
a. Debts due by the family.
h. Bad debts due to the family included in the aggregate assets.
c. Marriage expenses of unmarried brothers and sisters.
d. Maintenance of female members :
(1) Aunt of parties.
(2) Mother of plaintiff.
(3) Sisters, if unmarried.
A deduction on account of a Mandir, as after separation the plaintiff would
not be interested in it, was disallowed, Damodarhhat v. Uttamram, Bom.
H. C. P. J. F. for 1678, p. 231.
(fe) 2 Str. H. L. 32; above, p. 164.
(l) Ibid. 83, 90.
(m) If there be joint estate sufficient the widow of a deceased coparcener is
undoubtedly entitled to maintenance, Savitribai v. Laxmibai, I. L. E. 2 Bom,
673.
The widow of a predeceased son (undivided) is entitled to maintenance from
his father and brothers out of the joint ancestral estate, Musst. Lalti Kuar v.
Ganga Bishan et al., 7 N. W. P. 261 F. B. The possession of jewels, &c.,
suited to her .station and not productive of income, does not affect a widow's
claim to maintenance against her father-in-law. Her productive property
should be taken into account, Shib Dayee v. Doorga Pershad, 4 N. W. P. 73.
The Smriti Chandrika, Chap. XI., sec. 1, pi. 34, 35, fully recognizes the
right to maintenance, or by way of compensation to an allotment for life of a
share of the undivided property. It assigns a higher right to the Patni,
paras. 37, 38.
"The maintenance of Net Konwar, the widow of Muddun Mohun, was a
charge upon the inheritance, which came from Muddun Mohun " (in the hands
of his son's widow), per Sir B. Peacock, in Baijun Doobey v. Brij Bhookun
hall Awasti, at L. E. 2 I. A. 279.
As to the recognition of the duty by sharers in the mirasi villages of the
N. W. P., see Fortescue's Eeport on Delhi, dated 28th April, 1820, III. E. & J.
Sel., at p. 404.
(n) Mit., Chap. II., sec. 10, paras. 14, 15; Stokes's H. L. B. 457-8. Id
Ujjal Mani Dasi v. Jaygopal, 4 C. S. D. E. 491, the Pundit said that a pre-
deceased son's widow was entitled to maintenance proportionate to the father's
estate. In Rai Sham Ballabh v. Prankishan, 3 C. S. D. E. 33, the widow of
a predeceased son was held after the father's decease entitled to no charge but
to food and raiment only; to be received in her father-in-law's house, Ram-
soondri Debra v. Ramdhun Bhuttacharjee, 4 C. S. D. A. E. 796. See further
LIABILITIES ON INHERITANCE. 693
chandra Dikshit v. Savitribai (o). The question of a widow's
right to maintenance is discussed at length in Book I., sec. X.,
p. 225 (p), and the rights as they subsist against the family
are those which the heirs must satisfy when they propose
to divide the common estate. In Madras a daughter-in-law
was held entitled to maintenance {q) as a charge on ancestral
property held by her deceased husband's father, and free from
the condition of residing with him. A Hindu widow's mainten-
ance was pronounced a charge on the estate in any hands, in
Mussamut Khukroo v. Joormuk Lall (r). In Rango Venayek v.
Khetramani Dasi v. Kashinath Das, 2 B. L. E. 55 A. C. J. Sir L. Peel says,
in Judeemani Dasi v. Kheytra Mohun Shil, Vyav. Darp. 384 : " Strange . . .
treats the right to maintenance as a charge on the property in the hands of the
heir, and it certainly has always been so considered in this Court." He con-
siders the duty to reside with the husband's family merely a moral one; but
adds, " We shall award Rs. 10 a month, and the back maintenance must date
only from the date of the demand. We might in a proper case say there shall
be no back maintenance, and further maintenance should be enjoined only on
the condition of residence with the late husband's family. ..." See Sriniva-
sammal v. Vijayammal, 2 Mad. H. C. R. 37; Ramchandra Dikshit v. Savitribai,
4 Bom. H. C. R. 73 A. C. J. In Musst. Bhilu v. Phul Chand, 3 B. S. D. A. R.
223, a surviving brother was compelled to afford maintenance to his deceased
brother's widow, and in a similar case a widow was told that she ought to have
sought maintenance and not a share. Musst. Himulta Chowdraya v. Musst.
Pudoo Munee Chowdraya, 4 B. S. D. A. R. 19.
(o) 4 Bom. H. C. R. 73 A. C. J. The learned Judge, however, on a subse-
quent occasion, refused to recognize the authority of this case. See S. M.
Nistarini Dasi v. Makhanlal Dut et al., 9 B. L. R. 27. He says, " The ques-
tion there was, as to whether one brother could be sued alone, and it was held
that he could." Still the brother appears to have been sued as holding part of
the family property, not as liable apart from that circumstance. In Lakhsman
Ramchandra et al. v. Satyahhamahai, I. L. R. 2 Bom. 494, it has been held
that the claim is against the estate in the hands of surviving coparceners, and
that its non-liability in the hands of an alienee depends on the apparent necessity
or propriety of the sale and the absence of fraud on the widow. See also
Adhiranee Narain Coomary v. Shona Malee Pat Mahadai, I. L. R. 1 Cal. 365 ;
Sonda Min-ey Dossee v. Jogest Chunder Dutt, ibid. 2 Cal. 262; above, pp. 239,
241, 250.
(p) Above, p. 238 ss.
iq) Visalatcht Ammal v. Annasamy Sastry, 5 M. H. C. R. 150.
(r) 15 C. W. R. 263. A person entitled by a decree to maintenance out of
an estate may apparently enforce it as a charge on the property into whatever
hands it goes. See S. Baghabati Dasi v. Kanailal Mitter et al., 8 B. L. R. 225 ;
Koomaree Debia v. Roy Luchmeeput Singh, 23 C. W. R. 33. See Heera Lall
V. Musst. Kousillah, 2 Agra H. C. R. 42. In a partition enforced by a creditor
in order to make the father's share available for payment of his claim, the share
694 HINDU LAW. [BOOK II.
Yamunahai (s) it was held that a widow of a coparcener in
Bombay, though entitled to maintenance, cannot generally claim
a separate maintenance. So also the Sastris, above, pp. 348,
Q. 12, and 354, Q. 25, and in Kashce Chander's Case referred to
in 3 Mor. Dig. 178 (t) but in Kasturbai v. Shivdjiram (v) it is
said, ' ' Where there is family property available for maintenance it
lie® upon the parties resisting the claim to a separate maintenance
to show that the circumstances are such as to disentitle the widow
thereto " (w).
This doctrine must now be regarded as that of the Judicial
Committee, which has declared that a Hindu widow is not bound
to residence in her husband's family (x). The cases, therefore,
decide that a coparcener's widow is entitled to maintenance (z/),
and is not bound to residence. In a case of actual partition it is
generally necessary to provide for the widows by separate allot-
ments or charges, both in order to secure their maintenance and
as a necessary element of an exact distribution of the estate and
its burdens amongst the coparceners (z). In Bengal the liability
of the wife should be provided for, Bahu Deendayal Lai v. Babu Jugdeep Narain
Singh, L. K. 4 I. A. 247. Arrears may be awarded as well as future payments,
Raja Pirthee Singh v. Rani Rajkooer, 12 B. L. R. 238.
(s) I. L. R. 3 Bom. 44. See above, p. 75.
(t) In Shiva Sundari DasVs Case (Vyav. Darp. 381), Sir L. Peel held that
the widow of a predeceased son was entitled to maintenance as against the
father-in-law and brothers-in-law though she had quitted the family house at her
own mere pleasure. This is quoted with approval in Raja Pathan Singh's Case,
L. R. S. I. A., at p. 247. So Koodee Monee Dahea v. Tarachand Chuckerhutty ,
2 C. W. R. 134. But where father and son had been separated it was held
that the son's widow was not entitled to maintenance, Rujjomoney Dossee v.
Shibchunder Mullick, 2 Hyde 103; Parvati v. Kisansing, I. L. R. 6 Bom. 667.
See above, p. 229 ss.
A widowed daughter or si&ter after being supported by a man in his life must,
in parts of the Panjab, be supported by his heirs after his death, Panj. Gust.
Law, Vol. II., p. 180.
(v) I. L. R. 3 Bom. 372.
(w) See above, p. 253.
(x) See above, p. 251 ss.
iy) See above, p. 345, Q. 17; p. 386, Q. 27; p. 411, Q. 10.
(z) In the case of Kalu v. Koshibai, Bom. H. C. P. J. 1882, p. 420; S. C.
I. Li. R. 7 Bom. 127, a claim was made by a son's widow against her father-
in-law to maintenance for herself and her children. It was held that neither
the widow nor the children were entitled to subsistence, the father-in-law's
property being self -acquired. As to the former the Court relied on the case
of Savitribai v. Laxmibai, I. L. R. 2 Bom. 674. If the reasons given in
sec. 10 of Book I. are valid the claim of a son's widow in a united family is
LIABILITIES ON INHERITANCE. 695
of the ancestral estate to support a widowed daughter-in-law has
not, according to the Hindu Law, dependent on the existence of joint family
property : it is founded on the family relation, and the value of the property
is significant only as a means of determining the proper amount of style of
maintenance. The judgment of Nanabhai Haridas, J., in Udaram v. Sonkahai
expresses the view of the Hindu authorities more correctly than the recent
one in which he concurred with Sir C. Sargent, C.J.
The Mit. in the chapter to be presently referred to insists most strongly on a
man's duty to support all members of his family, and forbids his parting with
even his self-acquired property so as to impair his ability to discharge the duty.
How far the duty extends is not defined, as far probably as the united family,
which seldom comprises relatives more remote than first cousins, and can be
broken up at will. It may safely be said to reach as far as a son's family,
seeing that the precepts expressly include grandchildren, and the connexion is
so strong that the son and the grandson are the first heirs, and must by Hindu
law pay their ancestors' debts irrespective of family estate. See above,
pp. 263, 264.
The Hindu girl has no voice in choosing her husband. She has no claim
on her family of birth so long as her family of marriage can sustain her. See
Narada, Pt. II., Chap. XIII., paras. 27-29; above, p. 76. Her already
pitiable lot as a widow must become in many cases desperate if she is reduced
to homelessness and starvation in the face of the strongest precepts, hortatory
or imperative, of her national law. See above, pp 225, 239. In denying the
claim of the grandchildren the Court refers to SavitrihaVs Case as expressing the
opinion of three Judges that the direction to support a child is imperative. But
the legal obligation does not extend, it is said, beyond the son. For this a
passage is cited from Strange 's Manual, sec. 209, purporting to be an extract
from the Mit., " On the Eetraction of Gifts," but which is not to be found
there. That section is a commentary on Yajnavalkya, Book II., si. 175, the
sense of which is that a man may bestow his own in so far as he does not
thereby injure the family, but never his whole property while his posterity
survive. Vijnanesvara expounds " svam " in the Smriti as meaning " atmyam"
( = specially his own, or personal property, as contrasted with the common
estate). He divides things with reference to gift into four classes, alienable
and inalienable, and (the usual forms of alienation having been gone through)
into alienated and unalienated. In distinguishing the first two classes he
repeats that of a man's (proprium) self -acquired property only so much is
alienable as exceeds the family's needs. As a ground for the limitation he
insists on the paramount right of the family to support. To establish this he
quotes Manu's text : " Aged parents, an honourable wife, an infant child, must
be maintained even through a hundred trespasses." (Comp. Manu VIII. 389.)
Presently afterwards he incidentally quotes Narada (see Transl. p. 59) to the
effect that a man having issue must not alienate his whole property. Lastly he
construes the text as forbidding the alienation of the whole property, however
completely one's own, that is though self -acquired, while issue (son or grandson
or the like " putra-pautradi ") survive. Thus the obligation imposed by Manu,
80 far from being treated as exceptional or as limited to the literal sense of the
precept, as Mr. Strange must have thought, is made an example of the duty to
696 HINDU LAW. [BOOK II.
been asserted (a) and denied. The actual decision in the latter
case did not necessarily involve an absolut^e negation of the right
as it was limited to a statement that " as long as she elects to
live with her own father she has no legal right to be maintained
by her father-in-law " {h), a rule quite in accordance with
the native authorities (c) and the customary law of Bombay; but
it was said that ' ' a daughter-in-law has no legal right to be main-
tained whether she lives with her father-in-law or not." This is
opposed to the Hindu authorities (d) and to the custom of the
Bombay presidency. Where there was ancestral property it is
opposed in its result to the recent Bombay decisions ; but it agrees
with them in principle, and has been relied on in them as an
authority (e). If the right of the widow of a son, or other member
of a united family, depends altogether on her deceased husband's
having been, not a co-member of an undivided family, but
a joint owner of property with the surviving members against
whom the widow's claim is directed, then as the son in Bengal
does not in any practical sense become a co-owner with his father
by birth, he cannot, on his predecease, leave anything out of
which his widow can claim maintenance. That this is not the
real basis of the widow's right has been shown in Book I. (/), but
the family generally. The precept that he who has begotten a son and per-
formed his tonsure shall provide for his sustenance is relied on for the rule that
the alienation of his (proprium or personal, i.e.) self-acquired property is
subject to restrictions so long as posterity exist. The section of the Mitakshara
is translated in the Appendix. It is in accordance with the chief Hindu
authorities that Jagannatha says : " If the person entitled to subsistence be not
excessively vicious and the householder being mad give away his estate the
donation is void," Col. Dig,, Book II., Chap. IV., Text XV. Comm. See also
Steele, L. C. 68. If the family of an outcast son can claim maintenance it
seems that the right subsists equally where the son has died. See Col. Dig.,
Book v., T. 334, and comp. Virada Chintamani, Trans., p. 291.
(a) Musst. Heera Kooeree v. Ajoodhya Pershad, 24 C. W. K. 475.
(h) Khethu Monee Dossee v. Kasheenath Doss, 10 C. W. E. 89 F. B.
(c) See Vyav. May., Chap. IV., sec. 8, para. 7; Stokes's H. L. B. 85;
Narada, Dayabhaga, paras. 28, 29, Transl., p. 98; above, pp. 227, 247 ss.
id) Above, pp. 227, 247, 249, 254, 386, 411. The Viramitrodaya, in arriving
at the conclusion that women are generally incompetent to inherit, says, " The
daughter-in-law and the like are entitled to maintenance only." See Transl.,
p. 244.
(e) See Savitrihai v. Laxmibai, I. L. R. 2 Bom., at p. 617.
if) Above, pp. 233, 239 ss. Comp. Col. Dig., Book II., Chap. IV., T. 28
Comm. in med. on the mother's right.
LIABILITIES ON INHERITANCE. 697
it seems unlikely now that the Hindu theory should reassert itself
against that by which it has been replaced.
Subject to any qualifications which the recent decisions have
introduced, it may be said that the daughter-in-law's right, like
every coparcener's widow's right, to maintenance has always been
recognized in the Bombay presidency (g). In the case of Bam-
koonwur v. Ummur et at. (h), a daughter-in-law and her daughter
were pronounced entitled to maintenance by the stepmother-in-
law, who had succeeded to the father-in-law's property. The
mother-in-law was pronounced incompetent to dispose of the im-
movable property. At 2 Macn. H. L. Ill it is similarly laid down
that a widowed daughter-in-law is entitled to board and residence
with her mother-in-law, but not to an allowance if she choose to
live apart (z). The latter part of this rule may now probably be
held superseded by the decisions, except perhaps where it can be
maintained as a caste law.
Where a separate maintenance has been awarded, it may be
increased or diminished upon proper cause shown (k). The order
may be made subject to variation (i). Arrears may be awarded (m)
ig) See above, pp. 239, ss. 411; 1 Str. H. L. 124, 172, 244; 2 ibid. 412, 235,
233, where Colebrooke (referring to Mit., Chap. II., sec. 1 and 2, Stokes's
H. L. B. 364-380) and Sutherland recognize the daughter-in-law's right in a
case wherein the deceased son had no separate property. At page 297, Cole-
brooke, referring to Mit., Chap. II., sec. 1, p. 7 (Stokes's H. L. B. 429), says
that even half-brothers of a widow's deceased husband are bound to maintain
her. See the case of Savitrihai v. Laximihai, I. L. R. 2 Bom. 573, discussed
above, pp. 235 ss. In Apaji Chintaman v. Gangabai, Bom. H. C. P. J. 1878,
p. 127, a widow's claim against her brother-in-law to a pecuniary allowance
and the expenses of a pilgrimage was rejected. See Ambaioow v. Button
Krishna et al., Bom. Sel. Ca., p. 150. The decision in Chandrabhagabai v.
Kasinath, above, p. 234, is supported by 1 Str. H. L. 172, but cannot be thought
consistent with the more recent decisions. As to the measure of maintenance
of a predeceased coparcener's wife see 2 Str. H. L. 291, 294, 199; Satyabha-
mabai v. Lakshman Ramchandra, Bom. H. C. P. J. 1880, p. 62. Some of the
elements in determining what is a suitable maintenance for a Hindu widow out
of her deceased husband's estate were considered in Sreemutty Nittokissoree
Dossee v. Jogendro Nauth Mullick, L. R. 5 I. A. 55.
{h) 1 Borr. 458.
(t) See also Digest of Vyavasthas, Chap. I., sec. 2, Q. 23, 24, p. 336;
Chap. II., sec. 1, Q. 6, 17; sec. 3, Q. 9 ; sec. 6a, Q. 27, 28; sec. 7, Q. 10;
2 Str. H. L. 235.
(k) See Sreeram Buttacharjee et al. v. Puddomokee Debia, 9 C. W. R. 152
C. R. ; Ram Kullee Koer v. Court of Wards, 18 C. W. R. 478; Rukka Bat v.
G(mda Bai, I. L. R. 1 All. 594. Above, p. 253.
(l) Above, p. 257; Nubo Gopal Roy v. S. Amrit Moyee Dossee, 24 W. R.
698 HINDU LAW. [BOOK II.
contrary to the opinion of tho Sastri (n), who thought the
widow entitled only to maintenance from day to day. The case
of Saruswutee Baee v. Kesow Bhut (o), taking the Sastri 's view,
is counterbalanced by that of Sakvarbai v. Bhavanji Raje (p)
which regards the point as unsettled. A widow's right to main-
tenance cannot be sold in execution of a decree or otherwise trans-
ferred (q). It is a proper course to make an investment in order
to secure the maintenance (r). Limitation barring a claim for
maintonanc-e runs only from the time when maintenance was
refused or the right denied (s).
V. — Eights and Duties arising on Partition.
§ 7. The rights and duties of the coparceners towards ea<jh
other, arising upon partition, relate to
a. The determination of the shares to which the sharers are
severally entitled.
B. The distribution of the common liabilities :
1. Of debts. 2. Of other liabilities.
428, and cases under (a), and Ramchandra Vishnu v. Sagunhai, Bom. H. C.
P. J. 1879, p. 460. A Court is not justified in reducing, as a punishment for a
vexatious defence to a suit, the amount of maintenance which it would otherwise
have awarded, Sreemutty Nittokissoree Dossee v. Jogendro Nauth Mullick,
L. R. 5 I. A. 55. See Moniram Kolita v. Kerry Kolitany, above, p. 249. Where
maintenance was withheld the Sastris have in several instances recognized a
right in the widow of a kind of pignoris capio to seize a part of the estate for
her support. Comp. the cases under sec. 3a, above, p. 606, note (tc).
(m) Venkopadhyaya v. Kavari Hengusu, 2 M. H. C. R. 36.
(n) Ramachendra Poy v. Luxoomy Boyee, M. S. D. A. R. for 1858, p. 236.
(o) 1 Morr. 247.
(p) 1 Bom. H. C. R. 194.
iq) Bhyruh Chunder v. Nuho Chunder, 5 W. R. 112; Ramahai v. Ganesh
Dhonddev, Bom. H. C. P. J. 1876, p. 188. See above, pp. 247, 288.
(r) Above, pp. 75, 163. As to a concubine's right to maintenance out of a
family pension, see 2 Str. H. L. 32. But where a Saranjamdar had made a
grant of land to a lady it was held that she could not retain it against the will
of his descendant, as the Government had, in bestowing the Saranjam, intended
it, as they declared, as a " provision for an ancient house " inalienable from
the family, Jamna Sani v. Lakshmanrav , Bom. H. C. P. J. 1881, p. 6.
(s) Timmappa Bhat v. Parmeshriamma, 5 Bom. H. C. R. 130 A. C. J. ;
Narayanrao Ramchandra v. Ramahai, L. R. 6 I. A. 114; Ramchandra Dikshit
V. Savitrihai, 4 Bom. H. C. R. 73 A. C. J. ; Act IX. of 1908, Sched. I. 129.
See above, pp. 252, 253.
RIGHTS AND DUTIES ARISING ON PARTITION. 699
A. With respect to the determination of the shares for actual
enjoyment, this has regard only to the property as it actually
subsists without allowances for previous inequalities of expendi-
ture (t). In the case of an enforced partition complete accounts
must be taken [v). Securities are to be given up to the Court, and
(t) See above, " Separation; " Col. Dig., Book V., Chap. VI., T. 377, 378;
Chuckun Lall Singh v. Poran Chander Singh, 9 C. W. E. 483 C. E., where,
however, what is said as to a manager's accountability to a minor coparcener,
is opposed to Col. Dig., Book V., T. 136, and Viram. Tr., pp. 41, 247. At
5 B. L. E. 347 (Abhaychandra Roy Choiodry v. Pyarimohan Guho et al.) also
it is said that a manager is liable to render an account to the other members of
the joint family; but this is to be taken only in a qualified sense, at least in
Bombay. See also the case of Ranganmani Dasi v. Kasinath Dutt et al.y
3 Beng. L. E. 1 0. C. J. As to charges that may be thrown solely on the
manager's share, see 2 Str. H. L. 339-345. See also the case of Appovier v.
Rama Suba lyen et al., 11 M. I. A., at p. 89; Joitaram Bechur v. Bai Ganga^
8 Bom. H. C. E. 228 A. C. J. ; Lakshman Dada Naik v. Ramachandra Dada
Naik, I. L. E. 1 Bom. 561; Dayakrama-Sangraha, Chap. VII., para, 29;
Stokes's H. L. B. 512. A liability does not arise to account for assets until
they are realized, Lakshman Dada Naik v. Ramrchandra D. N., I. L. E.
1 Bom. 561. If only one member separates there is merely a computation and
a severance of his share, Steele, L. C. 214. The customary law in most castes
is very jealous of a single parcener's right to acquisitions made by himself,
especially as to immovable property. Traditional sentiment, unreasonable as
it is, connects such property at once with the whole family, see Steele, L. C,
401. All that has been gained by individual parceners, therefore, is generally
an accession to the estate to be divided, (see above, p. 725 ss.) though the
Smritis, as Vasishtha, Chap. XVII., para. 26, recognize the acquirer's right to
a double share, or as Gaut., Chap. XXVIII., para. 27, to the whole gain of
learning. Where a business was carried on in a son's name it was still
presumed to be joint property, Narayan Jivaji v. Anaji Konerrao, Bom. H. C.
P. J. 1883, p. 91.
(v) Three sons out of six sued for partition of an estate wrongly maintained
to be impartible. They were awarded their moiety and three years' arrears
on an account of income and of expenditure for the benefit of the joint family.
Rajah Venkata Kanna Row v. Rajah Rajagopala Appa Row Bahadur, L. E.
9 I. A. 125.
Here, the claim having been wrongly resisted, the relief to the plaintiffs
was substantially put on the same footing as if that had been done which ought
to have been done. Damodar v. Uttamram, I. L. E. 17 Bom. 271 ; Bala v.
Muthu, I. L. E. 32 Mad. 271. Under the Dayabhaga an account must be
rendered by the managing member of the joint family, Obhoy v. Pearey
Mohun, 13 W. E. 75, F. B. According to the Mitakshara it cannot be claimed
from a member for past transactions, and it has been so laid down both by the
Bombay and the Madras High Courts, Narayan v. Nathaji, I. L. E. 28 Bom.
201, 208; Bala v. Muthu, I. L. E. 32 Mad. 271. The liability to render an
account is, however, based upon the interference with the enjoyment of copar-
700 HINDU LAW. [BOOK II.
if necessary a receiver and manager is to be appointed {w). All
the coparceners must be before the Court {x). (Katyayana says)
" The unequal consumption of unseparated kinsmen shall not be
removed (= rectified). The purport is that unequal consump^
tion cannot be prevented as it is unavoidable " {y). This is the
view expressed by Sir C. Turner, C.J., in Madras (z), and by
Melvill, J., in Konerav v. Gurrav (a), in which case there had been
not only joint enjoyment but a separate enjoyment of portions by
different members but in the exercise of the common right. The
Supreme Court of Bengal throw out an opinion (not deciding the
point) in 8. Soorjeemoney Dossee v. Deenobundoo Mullick (b),
that inequalities of expenditure are commonly in the present day
taken into account on a partition, and that, according to Col.
Dig., Book v., T. 373, a co-sharer is liable for sums expended on
personal enjoyment, not for the benefit of the family (c). The
question is discussed at some length in the case of Meghasham v.
Vithalrao [d), from the judgment of which, as it is not reported,
the following extract may be given :
"As to the next two objections, the object in taking accounts with a view
to partition of an estate must, in the absence of fraud or gross misconduct, be
simply to ascertain the existing nature and value of the property. The Hindu
Law does not subject each and every member of a united family to an account
of the portions taken by him from the common stock, and make him liable to
cenary rights by a coparcener; but when the enjoyment of the rights is joint,
as it is under normal conditions, a claim for account for past transactions
cannot be sustained.
(w) Rangrav Suhrav v. Venkatrov Vithalrav, P. J. 1878, p. 184.
(a;) Rakhmaji v. Tatia Ranuji, P. J. 1878, p. 188.
iy) Viram., p. 245, 247, which also pronounces a co-sharer answerable for
positive fraud.
(z) Ponnappa Pillai v. Pappuvayyangar, I. L. R. 4 Mad., at pp. 69, 60;
Krishna v. Suhhanna, I. L. R. 7 Mad. 664.
(a) I. L. R. 5 Bom. 589.
(b) 6 M. I. A. 540.
(c) "A coparcener is not, as a rule, entitled to an account against another in
respect of payments made by the former." Hence the Court inferred that one
could not sue another in union for contribution towards land tax paid by the
former, Nanahhai Valahhdas v. Nathahhai Harihhai, Bom. H. C. P. J. 1880,
p. 154.
The position of the coparceners may in this respect be compared to that of
a husband and wife liable to each other for positive fraud, but not for ordinary
inequalities of expenditure.
(d) S. A. No. 148 of 1871, decided 14th September, 1871, Bom. H. C. P. J. F.
for 1871.
RIGHTS AND DUTIES ARISING ON PARTITION. 701
restore all that he has taken in excess of his proper proportional share. So long
as the family subsists undivided, it is regarded by the law rather as an integral
unit in the community than as an aggregation of members, with reciprocal duties
and rights admitting of precise arithmetical definition, and completely enforce-
able by the state. This, which was a common and prevailing conception in the
earlier ages of the world, as Sir H. S. Maine has shown in his Ancient Law,
pages 134, 183, is supported as to the Hindu community by many texts of
recognized authority. Katyayana, quoted by Jagannatha in his Digest,
Book v.. Chap. III., T. 136, says ' Let not a co-heir be obliged to make good
what he expended before partition.' There is even added this precept, ' Effects
which a kinsman has embezzled, let not a co-heir use violence (compulsion) to
make him restore.' So intimate down to the period of partition is the union
of the family that protection otherwise than by remonstrance against
unauthorized individual appropriations, is hardly thought compatible with it.
Even in Bengal, where the power of each member of a united family to deal
with his own share of the property has long been recognized, traces of the
earlier and more general system are still very easily discovered ; Jimuta Vahana
(Dayabhaga, Chap. XIII., Stokes's H. L. B. 355-360), treating of this very
subject of embezzlement or unauthorized appropriation, denies to it a strictly
criminal character like theft; for he says, in accordance with the law of the
Benares and Western Schools, though not with his own previous precepts,
' previous to partition a discriminative (several) property referable to particular
persons relatively to particular things is not perceived.' A similar principle
underlies the reasoning of Jagannatha in his Commentary on Texts 136 and 378
of Book V. of Colebrooke's Digest, and it is to be observed that the ancient
texts are much more curt and decisive in their original form than as toned
down by the glosses of more recent commentators. The position and responsi-
bilities of the Karta or manager do not at present differ materially from those
of any other member of the family. He holds a precarious ofi&ce from which
he may at any moment be deposed by the general wish of the family. He is
not a trustee required as in ordinary cases of trusteeship to keep accounts of
his own expenditure, or of that of the other members, or of supplies taken out
of the common stock (e). The remedy for his misconduct is his deposition, or a
(e) In the case, however, of Doorga Persad v. Kesho Persad Singh, L. R.
9 I. A. 27, it was contended that Shev. Nandan Persad, the elder uncle of
two infants, had represented them sufficiently in a suit as defendant, he being
their co-proprietor and manager of the estate, and having been retained as their
guardian on the record when their mother's name as guardian was struck out.
The Judicial Committee say that " the manager ... is not the guardian of
infant co-proprietors ... for the purpose of defending suits against them in
respect of money advanced with reference to the estate." Eeference is then
made to Act XL. of 1858, corresponding generally to Act XX. of 1864. This
says : " The care of the persons of . . . minors . . . and the charge of their
property shall be subject to the jurisdiction of the Civil Courts"; and again,
" Every person who shall claim a right to have charge of property in trust for a
minor under a will or deed or by reason of nearness of kin or otherwise may
apply to the Civil Court for a certificate of administration ; and no person shall
be entitled to institute or defend any suit connected with the estate of which
702 HINDU LAW. [book II.
partition of property in which, as will be seen, an adequate account can in
general be taken.
" As regards a minor this remedy is not to the full extent available. He
cannot himself join in deposing a Karta or make a claim for a partition. It is
not reasonable that he should suffer by the mere misfortune of his possessing no
friend so interested in his welfare as to bring a suit in his name for a partition.
The Hindu Law appeals as emphatically (Col. Dig., Book II., Chap. IV.,
T, 17) as the English to reason, the reason of the law (Coke, I. Inst. I. II.
S. 138), and the misappropriation, which a minor is powerless to check at the
time, he may yet claim to have remedied as soon as he is sui juris. Gross and
he claims the charge until he shall have obtained such certificate." On this
it is said, " No certificate was obtained by Shev Nandan Persad, and although
it is stated that he was guardian of the infants, he clearly was not the legal
guardian, and had no right to defend the suit in their name. The decree in
the suit therefore was not binding on the infants." Yet as the debt had
originally been that of their father they were held responsible for one-sixth,
which it seems was the share assumed by some one on account of the infants
in a partition (comp. p. 613, supra). It does not seem that Sheo Nundan really
sought or held charge of joint property in trust for the minors. As senior
member of a united family, he would be their joint tenant if an English Law
term is appropriate, holding every part of the property as his own {per mie et
per tout) accountable in no other way than as the Hindu Law makes a managing
member of a family accountable for gross malversation. As manager he could,
according to most of the decisions, represent the aggregate interests of the family
in the Civil Court (see above, p. 573). The family, however, had manifestly
become divided when the nephews by their suit sought exoneration from liability.
This division may have occurred before the suit against Shev Nandan and the
nephews. In that case they might remain co-proprietors with Shev Nandan as
manager, and still hold separate interests like tenants in common under the
English Law. Such separate interests could not be taken charge of without
breaking up the integrity of the estate essential to the united family. In the
beginning of the report, however, the uncle and nephews are described as
members of a joint Hindu family. If in such a case the joint right of infant
members along with the manager is a property which can be taken charge of
by way of trust, and must be so taken for proceedings at law, the manager is
necessarily deposed from the place assigned to him by the Hindu Law. The
distinction of rights is in fact incompatible with a continuance of the joint
family as shown in Appovier's Case, see above, pp. 646, 649.
On the point whether the decree obtained by the creditor, could bind the
infants without their having been represented by a guardian, their Lordships
say : "It is not necessary now to inquire, because the Courts below went into
the question of whether the bond was given for a debt for which the infants
were liable, and held that it was not." But the High Court had decreed that
the infants were liable and must pay the share of the debt apportioned to
them. This, according to the view taken in the Judicial Committee, was opposed
to the principle laid down in Deen DayaVs and Suraj Bunsee Koer's Cases, but
the decree of the High Court was affirmed. The case thus presents difficulties
and has perhaps been imperfectly reported.
RIGHTS AND DUTIES ARISING ON PARTITION. 703
reckless waste, as well as downright fraud, which an adult coparcener would
have guarded against by insisting on partition, forms a proper ground of action
on the part of one who could not at the time adopt that remedy. Yet mere
ordinary extravagance does not entitle a minor on attaining his majority to an
account of sums expended, and a compensation for those in excess of the Karta's
proportional share, for which the texts of the Hindu Law make no provision,
and which would be plainly opposed to its fundamental principle of the integrity
of a family united in sacra (Maine A. L. 192) and in interests. If such an
account could be exacted indeed, the birth of a son would immediately impose
on his father the necessity of recording every item of income and expenditure.
The adult member of a family, who sees a way opening by which he may attain
opulence, cannot easily free himself from the embarrassment of minor members
entitled to share his gains, and the same closeness of connexion, which thus
makes them sharers of his gains (/), makes them sharers also in the losses
occasioned by his indiscretions, so long as these do not proceed to an outrageous
length.
" It must, therefore, in a suit, brought by a Hindu on attaining his majority,
for partition against the other member or members of his family, always be a
matter very much within the discretion of the Court to determine whether all
just and reasonable bounds of expenditure have been so exceeded that the
member sued may properly be made responsible for the excess. The social
position of the parties, the recognized customs of their class, and many other
circumstances may be taken into account; and the presumption, in the absence
of evidence, is always that the estate simply as it subsists at the moment of the
suit is that of which the claimant can demand his proper aliquot part (g). For
the event of fraud distinct provisions are made. The Vyavahara Mayukha (h)
lays down what is to be found in many other works, that the brother, who by
concealing the extent of the property defrauds co-heirs, shall be punished by the
King; and property whether purposely concealed or accidentally omitted from
the partition is everywhere recognized as a proper subject on its discovery for a
further distribution on the same principle as the former one.
"As to the determination of what the subsisting estate really is, what the
(/) Though the cleverest of a family take the management from an inefficient
senior, and make gains, he is not therefore entitled to a larger share than his
brethren in partition; Steele, L. C. 397. But he is entitled to a recoupment
of losses sustained or of debts paid out of his separate property on the joint
account; Steele, L. C. 213, 214.
ig) See the remarks of Jagannatha in Col. Dig., Book V., T. 374; Venkatest
V. Ganpaya, Bom. H. C. P. J. 1876, p. 110; Ridhakarna v. Lakhmichand and
others, P. J. 1878, p. 238; Konerrav v. Gurrav, I. L. E. 5 Bom. 589. In the
case of Apya Ran v. The Court of Wards, I. L. E. 6 Mad. 236, the same
principle was acted on by the Privy Council. The plaintiffs were awarded as
against the defendants their moiety of a Zamindari and of the mesne profits
from the time of their dispossession, but subject as to the profits to the statutory
limitation of three years before the institution of the suit. The moiety of the
estate would necessarily, in the absence of a special direction, be a moiety of it
as it existed at the time of the plaintiffs' ouster.
{h) Chap. IV., sec. 7, para. 24; Stokes's H. L. B. 79.
704 HINDU LAW. [book II.
Hindu Law prescribes as a test in doubtful cases is an application of the Kosha
ordeal (i). We have got beyond that stage of progress in which so rude a
method of investigation can any longer be effectual, as once sometimes it was,
by its operation on the conscience of the person exposed to it. The more practical
method of an enquiry into facts as they can be proved by testimony must be
pursued, as that which, however imperfect, is the one that can be applied with
the best hope of success. This resolves itself virtually in a case like the present
into the preparation of an account on the principles already laid down of the
existing property and of those further sums, if any, for which the person sued
may properly be made answerable " (k).
The partition is regulated by the nature of the property, as
(1) divisible, or (2) naturally indivisible. In the former case the
partition proceeds regularly by a distribution in specie of portions
amongist the sharers. The amount of the portions varies according
to the status of the sharer in the family, and, in some cases,
according to the nature of the property.
"We have to distinguish
h. The partition between brothers and collaterals undivided,
descendants.
(1) Of ancestral property.
(2) Of self -acquired property.
b. The partition between brothers and collaterals undivided.
c. Between coparceners reunited.
A. 1. a. (1) Partition between ancestor and his first three
descendants. — On a partition between an ancestor and his
descendants to three generations of ancestral property, the shares
are equal (I). As between the ancestor and each of his sons or the
issue of each, and between the several sons or the representatives
of each (m).
(2) On a partition of self-acquired property made spontaneously
by the head of the family, he may reserve for himself a double
(i) Vyav. May., Chap. IV., sec. 6, para. 3 (Manu, cited Col. Dig., Book V.,
T. 374) ; Stokes's H. L. B. 73.
(k) See also below, Digest of Vyavasthas, Chap. II., sec. 1, Q. 9; Chap. III.,
sec. 2, Q. 4, Eemarks ; Steele, Law of Caste, 63, 208.
(I) Mit., Chap. I., sec. 6, para. 8; Stokes's H. L. B. 393; Narada, Pt. 11.,
Chap. XIII., si. 12. Traces of the ancient rule giving a larger share to the
eldest son are still to be found. See Book II., Vyav., Chap. I., sec. 2, Q. 2,
Eem. ; Steele, L. C. 210, 218.
(m) In a few castes the sons share according to a patnibhag, see above,
pp. 273, 399, but in the great majority they take equally, Steele, L. C,
pp. 419, 420.
ANCESTOR AND FIRST THREE DESCENDANTS. 705
share (n). But not if the partition be enforced by the descendants.
This follows from the text which states that * ' if the father makes
a partition by his own desire, he receives a double share " (o), and
is also particularly stated in the Viramitrodaya (p). The descen-
dants take equal shares per stirp'es\ (q) ; unequal partition by
deduction formerly recognized is not admitted in the present (Kali)
age. Under the ordinary law, a father is not at liberty to dispose
of his property in favour of one son to the prejudice of the others,
either by way of gift inter vivos or by way of bequest (r). As the
Hindu Law, however, admits the father's right of disposal over
self-acquired movables, there would be no objection to his
making an unequal distribution of this portion of his property
amongst his sons (s). The Bombay High Court has ruled (t) that
" a father united with his son has full power to alienate self-
(n) Mit., Chap. I., sec. 5, para. 7; Stokes's H. L. B. 392; May., Chap. IV.,
sec. 4, para. 12; Stokes's H. L. B. 60. See Col. Dig., Book V., T. 388, Comm.
ad fin. The limited power of a father over his patrimony and even over his
own acquisitions may be looked on as the general rule in jurisprudence, wherever
the family has risen to importance. In France and the countries which have
adopted the French Code, the portion of which a father can dispose in his estate
is limited to his aliquot part, counting himself and his children together. Thus
with three sous he can by gift or by will alien only one-fourth of his property.
To a wife, however, he may give one-fourth in full ownership, and the usufruct
of one-fourth more, provided that if he were a widower with children when he
married her she cannot have more than the smallest portion given to a child,
the continental jurists of Europe, at least as subtle and inconclusive as any
the widow's capacity as a beneficiary is or is not, where there is but one child,
less extensive than that of a stranger, have given rise to discussions amongst
the Continental jurists of Europe, at least as subtle and inconclusive as any
with which Jagannatha and his precursors in India have been reproached.
(o) That this is the law only as to self-acquired property is stated in Badri
Roy V. Bhagwat Narain Dohey, I. L. K. 8 Cal., at p. 663.
(p) Tr., p. 63, 66.
iq) Dehi Parshad v. Thakur Dial, I. L. E. 1 All., at p. 113.
(r) Bhujangrav v. Malojirav, 6 Bom. H. C. E. 161, A. C. J. ; Lakshman Dada
Naik v. Ramchandra Dada Naik, I. L. E. 1 Bom. 661; S. C. in App. L. E.
7 I. A. 181; Col. Dig., Book V., Chap. I., T. 27, 28; and infra, Book II.,
Vyav., Chap. I., sec. 2, Q. 2 and 6; Mit., Chap. I., sec. 3, para. 4, Stokes's
H. L. B. 382; May., Chap. IV., sec. 4, para. 11, ihid. 50.
is) Mit., Chap. I., sec. 1, para. 27, Stokes's H. L. B. 375; May., Chap. IV.,
sec. 1, para. 6, ihid. 43. A testamentary bequest cannot be made so as to cause
an unequal division of ancestral movables, Manakchand v. Nathu Purshotam,
Bom. H. C. P. J. 1878, p. 204.
it) Gangahai v. Vamanaji, 2 Bom. H. C. E. 304.
H.L. 45
706 HINDU LAW. [BOOK H.
acquired land," which implies a complete power of disposal (v),
and so has the Privy Council in Rao Balwant Singh v. Rani
Kishori (w). According to this principle, the head of a family
would be equally unfettered in the distribution of his immovable
as of his movable self-acquired property (x).
(v) See also Muddun Gopal Thakoor et al. v. Ram Buksh Pandey et al.,
6 C. W. E. 71 C. R. ; Bawa Misser et al. v. Rajah Bishen Prokash Narain Singh,
10 ibid. 287 C. E. ; Gunganath v. Joalanath et al., N. W. P. S. D. A. E. for
1859, p. 63; and below, Book II., Vyav., Chap. I., sec. 2, Q. 2-8, Eem. ; and
sec. 3, Q. 1, Eem. An unequal distribution of acquired property by the father is
in some degree generally recognized by caste custom, subject only to the claims
of the family to maintenance, and to protection against mere caprice. Steele,
L. C, pp. 68, 62, 216, 408.
(w) L. E. 26 I. A. 54.
(x) But see also 1 Str. H. L. 20, 21; 2 ibid. 9, 11, 13, 439; and Col. Dig.,
Book II., Chap. IV., sec. 1, T. 13, 14.
As to what is included in immovable property according to the Hindu Law,
see Smriti Chandrika, Chap. VIII., para. 18, and note; Chap. XI., sec. 1,
paras. 44-48; Jamiyatram v. Parbhudas, 9 Bom. H. C. E. 116; Maharana
Fatesanji v. Desai Kalyanraya, 10 ibid. 189 P. C. ; Raiji Manor v. Desai
Kallianrai, 6 ibid. 56 A. C. J. ; The Government of Bombay v. G. Shreegird-
harlalji, 9 ibid. 222 ; Balvantrao v. Purshotam et al., 9 ibid. 99; Krishnabhat v.
Kapabhat et al., 6 ibid. 137 A. C. J. ; Bharatsangjee v. Navanidharaya, 1 ibid.
186; Sangapa v. Sanganbasapa, E. A. No. 40 of 1875, Bom. BE. C. P. J. F. for
1876, p. 214; Shivagavda v. Dharangavda et al., E. A. No. 7 of 1876, ibid, for
1876, p. 144; Sitaram Govind v. The Collector of Tanna, S. A. No. 193 of 1874,
ibid, for 1876, p. 141; The Collector of Thana v. Hari Sitaram, 1. L. E. 6 Bom.
546. According to these decisions a hak or right appendant to an hereditary
office or to membership of a group of village Mahars is immovable property within
the meaning of the Limitation Acts, and is not personal property within the
meaning of sec. 6 of Act XI. of 1865 (the Small Cause Court Act for the Mofussil).
Consequently the Small Cause Courts have not jurisdiction in such cases even
over claims for definite sums sued for as arrears. The contrary view, suggested
by Hanmantrav Sadashiv v. Keru, Bom. H. C. P. J. 1876, p. 291, and Nam
Pira V. Naro Shidheshvar, I. L. E. 3 Bom. 28, cannot safely be followed. The
rulings have been embodied in Act IX. of 1908, sec. I., art. 132, which says that
Malikana and Haks are for limitation to be deemed charges on immovable
property.
Tithes under the English statute law are hereditaments, and a rent was
regarded in early times as an estate subject to the " assise " for possession; but
all things of value not being land or interests in land (and some interests in
land) are by the English Law " personal property," a term by no means identical
with movable property (see Freke v. Lord Carbery, L. E. 16 Eq. Ca. 461), and
peculiar to the English Law, in the sense in which that law uses it. See Butler's
note to Co. Lit, 191a, sec. II. 2. A royal grant of an annuity, therefore, would
be " nibandha " according to Hindu Law, but according to the English Law
it would, unless issuing from land, be a merely personal inheritance. See
ANCESTOR AND FIRST THREE DESCENDANTS. 707
An adopted son receives a fourth part of a share, if legitimate
Co. Lit. 20a, and Hargrave's note. In The Government of Bombay v. D&sai
Kallianrai Hakoomatrai, 14 M. I. A., at p. 663, the Judicial Committee say of a
Palanquin allowance : " They are by no means satisfied that the allowance,
though payable out of the Government revenue of a particular Pergunna, can
properly be said to be ' immovable property,' within the meaning of the clause
in question. It did not constitute a charge which could be enforced against the
land, or, since the year 1808, against the revenues of the land grior to the claim
of Government. The utmost right of Dowlutrai after 1808, or his descendants,
was to receive, after the perception of the revenues by Government, a certain
annual sum of money out of the Collector's Treasury." In the case of The
Collector of Thana v. Hart Sitaram, I. L. E. 6 Bom. 646, a full Bench on appeal
from a decision in which the judgment of Sir C. Sargent, J., had prevailed
against that of Melvill, J., upheld the former. In the judgment delivered by
Sir M. Westropp, C.J., it is laid down that a grant to a temple of an annuity
in cash and grain payable out of the extra assessments of particular divisions
of a district is a charge on the districts, because the assessment is so. It is,
therefore, as a charge on immovable property, itself immovable property.
This seems open to the logical objection that " charge " is used in a double
sense. As a real right a charge being an interest in land is immovable property,
as a tax it is not. (See Ashton v. Lord Langdale, 4 De G. and Sm. 402, com-
pared with Attree v. Haioe, L. R. 9 C. D. 337, and Jervis v. Lawrence, W. N.
for 1882, p. 157. A charge confers a right to realization by sale of that on
which it is imposed. See Fisher, Mortg., sec. 8; Transf. of Prop. Act, IV. of
1882, sec. 100.) Again it is said that " a grant by a Hindu sovereign to a Hindu
temple, which can only be held by the managers of the temple, is immovable
property, i.e., " nibandha." This seems to assume the point in issue. If not,
then the question is whether " nibandha " is necessarily immovable property,
and to say that because some or even all immovable property is nibandha, all
nibandha is immovable, is not a permissible conversion. " The question [is]
whether the subject of the suit is in the nature of immovable property (see
above, p. 223) or of an interest in immovable property, and if its nature and
quality can be only determined by Hindu Law and usage, the Hindu Law may
properly be invoked for that purpose." But the "nature and quality" of a
temple grant having been thus determined, the question of whether it falls
within the class of " immovable property " is one of English construction, i.e.,
do its characteristics as ascertained (not the mere Hindu name by which it may
be called) place the object within or without the comprehension of " immovable
property "? This includes fixed objects and such incorporeal rights exercisable
in immediate relation to them as the local law on that account recognizes as
immovable. The latter are jura in re carved out of the full ownership of the
object of property. See Story, Confl. of Laws, sec. 447; Freke v. Lord Carhery,
L. R. 16 E. C. 461. A temple allowance payable by officials out of a tax levied
by them, even a land-tax, does " not constitute a charge . . . against the land,"
and therefore according to the Judicial Committee in Desai KalianraVs Case,
14 M. I. A. 651, cannot certainly be said " though payable out of the Govern-
rnent revenue of a particular parganna " ... to be "immovable property."
(Jhid.) The opinion then may perhaps be hazarded that where the Hindu law
708 HINDU LAW. [BOOK U,
sons of the body have been born after his adoption (y). The ille-
gitimate son of a Sudra may also receive a share at the father's
choice (z) ; but those excluded from a share are entitled to main-
in a matter explicable by it alone shows a particular right to be a jus in re (a
real right as it is called) it is not immovable property even though it should be
nibandha according to the Hindu Law, as ex. gr. in case of a nemnuk (periodical
payment) from the Government treasury. This agrees with the definition given
in the General Clauses Act, I. of 1868, and in the Eegistration Act, III. of 1877.
In the Limitation Acts subsequent to Act XIV. of 1859 (Acts IX. of 1871, XV.
of 1877), " immovable " must necessarily be construed according to the definition
given in Act I. of 1868, sec. 2. See also Wilks's Mysore, Vol. I., p. 126.
As to the English law respecting annuities, stocks and shares which are
generally personal property, see Wms. Exec, Pt. 11. , Book III., Chap. I.,
sec. 2. How these, when held by Hindus, would be regarded now that
"immovable" and "non-personal" or "real" have been identified with
" nibandha " (= productive of a permanent income) may be a question of some
difficulty. Shares in the Government Banks, it is expressly enacted by Act XI.
of 1876, sec. 19, shall be " movable property," and by sec. 22 the Banks are free
to ignore trusts to which the shares are subject except for the purpose of
excluding the Banks' own claims for debts due to them from the registered
shareholders. The Indian Companies Act, VI. of 1882, sec. 44, provides
similarly in the case of all Companies under the Act, that the shares shall not
be "real estate or immovable property." Annuities under the Indian Loan
Act, 22 & 23 Vict. cap. 39, sec. 8, are declared to be personal property. Govern-
ment loan notes, registered or enfaced for payment in London, are as assets of
holder deceased declared personal property by Stat. 23 & 24 Vict., cap. V.,
sec. 1. In other cases the particular provisions of the constituting Statutes must
be looked to, in order to determine the nature of the property, and then in the
case of Hindus the Hindu Law will govern the relations of the representatives
or co-owners of the deceased owner inter se. The property will, in the first
instance, usually vest in the executor or administrator under Act V. of 1881,
sec^ 4.
A pension, in the proper sense of a stipend proceeding from the bounty of the
Government, is protected against attachment by the Pensions Act, XXIII. of
1871, sec. 11, but a grant of money or land revenue, such as a " Toda Giras "
Hak, is not exempt, though under the same Act it cannot be made the imme-
diate object of a suit cognizable by the Civil Court, Secretary of State for India
V. Khemchand Jeychand, I. L. E. 4 Bom. 432; Syed Mahomed Isaack Mushyack
V. Azeezoon Nissa Begam, I. L. E. 4 Mad. 341; Radhabai v. Bagho, Bom.
H. C. P. J. F. for 1878, p. 292.
{y) Mit., Chap. I., sec. 11, para. 24, Stokes's H. L. B. 420; May., Chap. IV.,
sec. 5, para. 17, ibid. 63.
(z) Mit., Chap. I., sec. 2, paras. 1 and 2, Stokes's H. L. B. 426; May.,
Chap. IV., sec. 4, para. 32, ibid. 65; 2 Str. H. L. 70. In the higher castes he
is entitled only to maintenance, ibid. 71. Inderun Valungypooly Taver v. Rama-
sawmy Pandia Talaver, 13 M. I. A. 141. The statement of the Pandits in the
same case as to managers between persons of different castes being unlawful
except when sanctioned by the customary law of the castes, expresses the Hindu
ANCESTOR AND DESCENDANTS. 709
tenance (a). On a partitioa being made by a father, head of a
family, his wives receive each a son's share (b), in case they
had received no Stridhana. If they had received Stridhana,
they obtain half a share, i.e., so much as, together with their
Stridhana, will make up a son's share.
A son bom to the father after partition inherits his wealth
either solely or in common with sons who have become reunited
with him (c). The already severed sons are disregarded in a fur-
ther partition between the father and sons in union with him.
The share allotted to a wife or sister in partition becomes Strid-
hana heritable by her eons only in default of daughters (d), or
Law as received in Western India; Steele, L. C. 29, 163, 166. But a woman,
being of a somewhat higher caste, is received into her husband's, ihid. Sea
above, pp. 78, 192, 254.
(a) 2 Str. H. L. 68. Rajah Parichat v. Zalim Singh, L. E. 4 I. A. 169.
As to succession see Raja Jogendra Bhupati Hurri Chundun Mahapatra v.
Nityanand Mansingh, L. R, 17 I. A. 128.
(b) Mit., Chap. I., sec. 2, paras. 8 and 9; Stokes's H. L. B. 379; May.,
Chap. IV., sec. 4, para. 16, ibid. 51; and compare the Dayakrama Sangraha,
Chap. VI., para. 22; ibid. 612; and Smriti Chandrika, Chap. II., sec. 1,
para. 39. The mother gets a son's share in every partition, Lalljeet Singh v.
Raj Coomar Singh, 20 C. W. R. 336, and the other cases cited and followed in
Sumrun Thakoor v. Chunder Mun Misser, I. L. E. 8 Cal. 17. A stepmother
must live with her stepson to be entitled to maintenance, p. 341, Q. 6; but
see also Book I,, sec. X. The Smriti Chandrika, Chap. XI., sec. 1,
para. 34, as quoted by the Viram., Transl., p. 136, regards the widow of an
undivided parcener as taking a portion of the common property for her main-
tenance only when the father-in-law, &c., are unable for some cause to protect
her, as Narada gives them guardianship with full power of control accompanying
their liability for maintenance, Viram., Transl., p. 138. Her right is
intransferable, see above, pp. 247, 288.
(c) Mit., Chap. I., sec. VI., paras. 1, 4; Nawal Singh v. Bhagwan Singh,
I. L. E. 4 All. 427; Ganpat Venkatesh v. Gopalrao, I. L. E. 23 Bom. 636;
Shivajirao v. Vasandrao, 1. L. E. 33 Bom. 267.
(d) Above, pp. 284, 293; Mit., Chap. I., sec. VI., para. 2; Chhidu v. Naubat,
I. L. E. 24 All. 67; Sri Pal v. Suraj, ibid. 82; Lakshman v. Satyabhamabai,
I. L. E. 2 Bom. 494, 504; Damoderdas v. Uttamram, I. L. E. 17 Bom. 271, 286;
Damoodur v. Senabutty, I. L. E. 8 Cal. 637. In Madras wives, widows, and
mothers are not entitled to a share, but only to maintenance, Venkatammal v.
Andyappa, 1. L. E. 6 Mad. 130; per Curiam, I. L. E. 8 Mad. 123. According
to the Bengal and the Benares Schools and in Madras a property inherited by a
woman from a male or a female is not her stridhan. In Bombay this rule is
confined to those women who enter the family by marriage and in Mithila to a
widow who inherits movables absolutely. This subject has already been dealt
with in the preceding pages.
710 HINDU LAW. [BOOK II.
according to the Mayukha in preference to daughters (e). This
rule is inconsistent with any intention to make property derived
by a woman from her husband " revert " to his family on her
death. Vijnanesvara recognizes inheritance and partition equally
as means by which a woman acquires property, and gives a single
set of rules for the devolution of this property, all of which he
calls Stridhana (/).
§ 7 a. 1. b. Partition between brothers or collaterals. — On a
partition between brothers the shares are distributed equally; on
partition amongst collaterals, per stirpes (g). As to the extent of
(e) Vyav. May., Chap. IV., sec. II., sec. X., paras. 25, 26; comp. p. 313,
note (e), above.
(/) See Mit., Chap. II., sec. XI., paras. 1, 2, 3, 8 ss. on which sec. VI.,
para. 2, serves as a comment. But for the prevailing doctrine see also above,
p. 318, and comp. p. 713 below.
The widow's power of dealing with property inherited from her husband or
given or bequeathed to her by him has been discus^sed by Scott, J., in a
terse and comprehensive judgment which applies equally to a share taken in
partition. The conclusion arrived at by the learned Judge was that according to
the law of Western India, the widow may dispose at pleasure of movable
property thus taken by her while subject to restrictions as to immovables for
the preservation of the estate, Damodar Madhavji v. Thakar Parmanandas
Jivandas, 13th February, 1883; S. C. I. L. E. 7 Bom. 155; citing the cases of
Bhagwandeen Doohey, 11 M. I. A. , at p. 673; Rajender Narain v. Bija Gobind
Singh, 2 M. I. A. 181 ; Bechar Bhagvan v. Bai Lukshmee, 1 Bom. H. C. E. 56 ;
Pranjivandas Toolseydas v. Devkuvarhai, 1 Bom. H. C. E., at p. 133 ; Balvantrao
T. Bapuji V. Purshotam, 9 Bom. H. C. E., at p. Ill; Koonjbehari Dhur v.
Premchand Dutt, I. L. E. 5 Cal. 685; Venkat Ramraw v. Venkat SuriyaraVy
I. L. E. 2 Mad. 333. See also above, pp. 91, 92, 287, 318, 475. As to the
quantum of the estate taken, see above, pp. 283 ss. 319 ss. ; and as to an exten-
sion of this by express agreement, gift, or bequest, pp. 184, 299, and Koonjehari's
Case, supra; as to the widow's power of bequest, pp. 181, 214, 294; Vyav. May.,
Chap. IV., sec. X., para. 9. Where a widow had inherited a house from her
deceased son, and was alive, it was held that " whether her mortgage was made
for such purposes as will render it valid against her successor after her death,
is a question which it is not necessary to determine in the present suit." The
mortgagee was awarded present possession, Malapa v. Basapa, S. A. No. 379 of
1880, Bom. H. C. P. J. for 1881, p. 43. A " reversioner," however interested
(see above, p. 89), is estopped from questioning the validity of an agreement
in which he concurred and which he attested, whereby the widow of a person
deceased, his mistress, and an illegitimate daughter by her, made a distribution
of his property, Sia Dasi v. Gut Sahai, I. L. E. 3 All. 362. See further § 7 a.
1 h.
ig) See Sumrun Singh v. Khedun Singh et al. 2 Cal. Sel. E. 11; Col. Dig.,
Book v., T. 95, Comm. ; Mit., Chap. I., sec. 3, para. 1; Stokes's H. L. B. 381;
Chap. I., sec. 5, para. 1; ibid. 391; Smriti Chandrika, Chap. VIII., para. 5;
BROTHERS OR COLLATERALS. 711
the property, thus subject to equal partition (h), see above, § 5 a,
pp. 653 ss. ; § 7 A 1 c^, pp. 704 ss.
If there has been a partial distribution giving part of its share
to one branch, it is debited with so much in account with the
whole body of co-sharers (f). But there is no general mutual right
to an account of past transactions (fe), except in Bengal under the
Dayabhaga (I).
If previously to the separation a particular member had had
sole possession with the assent of his coparceners of some portion
of the estate, ho may retain that portion (m), and where a mem-
ber had built a house out of his separate funds on a piece of the
ancestral land, it was held that this did not become part of the
family property subject to partition. All that the coparceners can
claim in such a case is a proportionate addition to their shares by
way of compensation for the land withdrawn from the general
partition (n). So in a case of partition of interests without one in
specie (o). In Vithoha Bava v. Hariba Bdva (p), however, a
house was divided, because built on family property (q). In
2 Str. H. L. 286, 358, 393. A mother cannot enforce a partition on an only
son, 2 Str. H. L. 290; but if a partition is made they take equal shares, Steele,
L. C. 49, 66.
(h) A gift from a parent to one of the sons while undivided is exempted from
partition, Viram., Trans!., 250. It must be of reasonable value; above, p. 211.
Madan Gopal Thakoor v. Ram Baksh Pandey, 6 Cal. W. E, 71; Nonomi
Bahuasin v. Muddun Mohun, L. K. 13 I. A. 5; Nariahhai v. Achrathai, I. L. E.
12 Bom. 122, 123.
(i) See above, p. 645, note (b).
(k) See above, § 7 a, p. 699; Konerrav v. Gururav, Bom. H. C. P. J. 1883,
p. 77; S. C, I. L. E. 5 Bom. 689; Lakshman v. Ramchandra Dada Naik,
I. L. E. 1 Bom. 561 ; S. C, I. L. E. 5 Bom. 48 P.C. A duty to account arises
from the time when a partition is wrongly refused. Ihid. Narayan v. Nathaji,
I. L. E. 28 Bom. 201, 208; Bala v. Nathaji, I. L. E. 32 Mad. 271.
(l) Ohhoy V. Pearey Mohun, 14 W. E. 75, F. B.
(w) Sreenath Dutt et al. v. Nand Kishore Bose et al., 5 C. W. E. 208 C. E.
The charge created by attachment of an undivided share and the effect given to
it by an actual transfer of part of the property to the possession of an execution
purchaser are to be distinguished from this case. But should the parcener in
separate possession deal with the part so possessed effect would be given to the
transaction so far as consistent with justice to the coparceners. See above,
pp. 587, 589; Pandurang Anandravi v. Bhaskar Sadashiv, 11 Bom. H. C. E. 72.
(n) 2 Macn. H. L. 152.
(o) The Collector of 24 Pergunnahs v. Dehnath Roy et al, 21 C. W. E. 222.
(p) 6 Bom. H. C. E. 54 A. C. J.
iq) Contra, Guru Das Dhar v. Bijaya Bohinda Baral, 1 B. L. E. 108.
712 HINDU LAW. [BOOK II.
Jotee Roy et al. v. Bheechuck Meal et al. (r), Phear, J., says that
by a long holding in severalty with consent of other sharers, a
member of the family acquires a right to have that particular
portion of the ancestral estate assigned, on a partition, to his
share, and that a lessee under him may compel him to assert this
right. Such a lessee holding on after a partition under other co-
sharers, their acquiescence in his lease is presumed after some
years. A purchaser may build a wall on the part in his posses-
sion, and unless it is injurious, the Court will not order its re-
moval. But there is no right, without permission, to injure the
other's interests (s).
Rights and duties arising on partition. — The rule regarding
adopted sons given above holds good here also. The illegitimate
son of a Sudra is entitled to half a share (t). Eegarding the inter-
pretation of the term " half a share," see Book L, pp. 69, 77 (v).
On partition amongst brethren not only mothers, but step-
mothers, paternal grandmothers, and step -grandmothers (w)
(f) 20 C. W. K. 289.
(s) Lalla Bissumbhur Lall v. Rajaram et al., 16 C. W. E. 140; Bissamhur
Shaha v. Shib Chunder Shaha et al., 22 ibid. 287. Under the English Law when
a partition is made each parcener is entitled to a deduction of the value added at
his sole expense to the part assigned to him from the valuation of such part with
which he is charged in the account with the co-owners, Watson v. Glass,
li. R. W. N. for 1881, p. 167.
(t) If there be no legitimate offspring, he is entitled to share equally with a
daughter's son, 2 Str. H. L. 70. But the Mitakshara, Chap. I., sec. 12,
paras. 1, 2 (Stokes's H. L. B. 466) postpones him to the grandson, except for
half a share. So Yajn. II. 134.
(v) See also above, pp. 361, 363, 364.
(w) Col. Dig., Book V., Chap. II., T. 85 Comm. Madana Parijata 15. The
Viramitrodaya (Tr. p. 79) lays down that though a husband making a partition
must give an equal share to each of his wives, yet sons dividing after his death
are not called on to give more than a maintenance to sonless stepmothers. In
this it departs from the doctrine of the Mitakshara (Chap. I., sec. I., 7) which
assigns in both cases equal shares to all the widows by placing them on the
same footing as wives in a partition made by the husband, Laljeei v. Raj,
20 Cal. W. R. 336. Vyasa says emphatically that the sonless wives of the father
and also the grandmother are entitled to shares. See p. 819. Mohabeer Pershad
V. Ramyad Singh et al., 20 C. W. R. 195; Badri Roy v. Bhagwat Narain
Dobey, I. L. R. 8 Cal. 649; Damodhur Misser v. Senabutty Misrain, ibid. 537.
But the last-quoted judgment says the stepmother takes her allotment only for
life as a maintenance. As to this see above, pp. 289, 293, 295, 710. " The
mother's title to her share is not founded on her former property but on
positive texts," Col. Dig., Book II., Chap. IV., T. 28 in med.
In his wide construction of the term " Stridhana," Vijnanesvara is followed
BROTHERS OR COLLATERALS. 718
receive a son's or grandson's share, provided they have obtained no
Stridhana. If they have obtained Stridhana, they are then en-
titled to so much only as, with the Stridhana, will make up their
proper portion {x).
nearly a century later by Apararka. This author says : " The word ' Adya '
is intended to include other kinds of woman's property; that, for instance,
acquired under Yajnavalkya's texts, ' The wives must be made partakers of
equal portions ' ; ' Let the mother take an equal share ' ; ' Sisters take a quarter
of a brother's share '; 'Daughters share the nuptial present of their mother.'
Everything else (in like manner) over which a woman has control, is by Manu
and the rest called woman's property " (Stridhana). In Sibbosoondery Dabia
V. Bussoomutty Dabia, I. L. R. 7 Cal. 191, it was held that a suit by a grand-
mother would lie for an equal share with her grand-daughter and grandsons
in the properties, which, under a previous partition decree, had been allotted
to the representatives of her husband, and to a life-interest in the income of the
property remaining unpartitioned.
In the meantime the widows are entitled to maintenance; see above, p. 269.
But where two widows sought to enforce the terms of a partition deed, super-
seded by other arrangements, they were not allowed to turn their suit into one
for maintenance, Naro Trimback v. Haribai, Bom. H. C. P. J. 1879, p. 33.
Ganga Bai v. Sitaram, I. L. R. 1 All., at p. 174, deals with the widow's
maintenance as a charge on the joint estate, a question which is discussed at
length in Lakshman Ramachandra et al. v. Satyabhamabai, I. L. R. 2 Bom.
494, S. C. ; Bom. H. C. P. J. F. for 1877, p. 349. The precepts of the Sastras
on the subject of the widow's residence have been variously construed, even
by the Native commentators, as may be seen by comparing the Vivada Chinta-
mani, p. 265, with Jimuta's Daya Bhaga, Chap. IV., sec. I, para. 8 (Stokes's
H. L. B. 237), and Col. Dig., Book V., T. 483, with Varadraja, p. 50.
(x) Mit., Chap. I., sec. 1, paras. 1 sqq. ; Stokes's H. L. B. 397; May.,
Chap. IV., sec. 4, paras. 18 and 19, ibid. 52. See Book I., Chap. IV. B.,
sec. I., Q. 10, Remark, p. 475. Col. Book V., T. 87, Comm. ; Jodoonath Dey
Sircar et al. v. Brojanath Dey Circar et al., 12 B. L. R. 385. The share given
to a mother, &c., on partition, may, according to Jagannatha, be dealt with
by her at her own pleasure, but, on her death, is inherited by her husband's
heirs. He distinguishes between property originating in a gift on account
of affinity, and in affinity alone. Col. Dig., Book V., T. 87. But see Nort.
L. C. 295. The texts cited there may, however, be differently explained. In
the case of a widow of a coparcener put on a partition amongst survivors, into
possession of a defined share, the Privy Council say, in Bhugwandeen Doobey
V. Myna Baee, at 11 M. I. A. 514 : " It may be a question whether her share
does not become absolute, though in a case coming from Lower Bengal, the
contrary was decided by this Committee." Prof. H. H. Wilson, vol. V. of
his Works, p. 26, favours her absolute power of disposal. Col., in 2 Str. H. L.
383, says the Mit. and Madh. Ach. treat the allotment as an absolute assign-
ment, contrary to the Smriti Chandrika ; see above, pp. 298, 303, 307 ss,, 338.
She holds only the position of a tenant for life, however, and has no right to
destroy buildings, according to Umapa Kantapa v. Ningosa Hirasa, S. A.
No. 123 of 1876, Bom. H. C. P. J. F. for 1876, p. 144. See further below,
714 HINDU LAW. [book II.
On partition between brothers, the marriage expenses of the
unmarried brother form a charge on the whole fund to be divided,
and are to be provided for by a deduction therefrom, but not those
of a brother's son (y). A mother's share is equal to a son's (z).
A sister's share is one-fourth of a brother's (a). Colebrooke, rest-
ing on the Mitakshara, makes this allotment an absolute assign-
ment of a share {h), though some other commentaries regard it
p. 782, note (d). Kishori v. Mcni Mohun, I. L. E. 12 Cal, 165; Jadoo v. Bijoy-
nath, 12 Beng. L. E. 385.
The construction of a deed, allotting money, &c., to a widow of a deceased
coparcener, may be made according to the situation of the parties, S. Rahutty
Dossee v. Sih Chunder Mullick, 6 M. I. A. 1; Boyle Chund Dutt v. Khetterpaul
Bysack, 11 B. L. E. 459.
iy) 2 Str. H. L. 286, 288, 338, 423; Mit., Chap. I., sec. 4, para. 19 (Stokes's
H. L. B. 388); sec. 5, para. 2 {ibid. 391); sec. 7, p. 4 (ibid. 398); Viram., Tr.,
p. 81; Steele, L. C. 57, 214, 404.
(z) 2 Str. H. L. 296; Mitak., Chap. 1., sec. 7, para. 1. In Bengal a mother
is entitled to obtain a share as representative of a deceased son, Jugomhoun
Holdar v. Saradamoyee Dossee, I. L. E. 3 Cal. 149.
(a) 2 Str. H. L. 288, 366; Mit., Chap. I., sec. 7, pp. 5-14; Stokes's H. L. B.
398-401; May., Chap. IV., sec. 4, paras. 39, 40 {ibid. 57); Viram., Tr., pp. 84,
85. Narada, Pt. II., Chap. XIII., si. 13, says that the eldest receives a
greater share, the youngest a smaller, and the others equal shares, as also a
sister unmarried. The variance of precept is explained by the Smriti Chandrika,
Chap. IV., as having reference to the extent of the estate, the sister's claim
on her brothers being greater in proportion as the aggregate is smaller.
Devanda Bhatta adds that, failing the patrimony, the brothers must perform
their sister's marriage out of their own funds, as the Viramitrodaya, Tr., p. 81,
imposes the duty of initiation on the brethren even though they have inherited
nothing. In the case at 2 Str. H. L. 312, the Sastri, apparently with the con-
currence of Colebrooke, on a partition claimed by one of four nephews against
his brothers and uncles, directed that the property, being divided first amongst
the different branches, sprung from the common stock, the portion allotted to
the plaintiff's branch should be distributed between him and his brothers,
subject to a charge for the maintenance and marriage of their sisters. Laljeet
V. Raj, 20 W. E. 336. The greater share is ascertained by dividing the pro-
perty into parts equal to the number of claimants and then giving a quarter
of a part to each maiden sister, the rest being divided among others equally.
Thus, where there are three brothers, two mothers, and two maiden sisters,
the property is to be divided into seven parts, a quarter to be given to each
sister, the others dividing the rest equally amongst them, Damodar v. Sena-
butty, I. L. E. 8 Cal. 539. See Mit. I., 7, 6; Varamitrodaya, II., 1, 2; Aprarka
on Y. I., 124; Madana Parijata, p. 648.
(b) Mit., Chap. II., sec. 1, p. 32 (Stokes's H. L. B. 436); 2 Str. H. L. 383;
Vyav. May., Chap. IV., sec. .4, para. 18 (Stokes's H. L. B. 52); sec. 10,
pp. 2, 7, 9 {ibid. 98, 100). Ellis, at 2 Str. H. L. 404, says : " The daughter is
heir of her father as well as the sons," but that is perhaps putting it rather too
REUNITED COPARCENERS. 715
merely as a provision held for life, like property, as they insist,
inherited or taken by gift from the husband (c). Eegarding the
share allotted on a partition to a sister or widow, however, as abso-
lutely assigned, it may perhaps still be looked on, according to the
analogy of the estate taken by a father in a division, as heredi-
tary property for the purposes of further descent, and as, on
that principle, going on the death of the widow to the heirs in the
husband's family, who being nearest to him are, for this purpose,
nearest to the widow. This may possibly have been the view of
Nilakantha, in the Vyav. May., Chap. IV., sec. 10, paras. 26,
28 (d), and would make her position similar to that of a widow
of a separated coparcener as thus conceived (e). The Mitakshara
makes the share simply Stridhana (/), inherited as described in
Book I., pp. 135, 295; and in Digest of Vyavasthas, Chap IV.,
pp. 470 ss., 484 ss. (g).
§ 7. A. 1. c. — Partition between reunited coparceners. — In
the case of a partition between reunited coparceners, the shares
are equal, notwithstanding that the portions brought in on reunion
were unequol (h). Eegarding the descent of shares in a reunited
family, see Book I., pp. 129 sqq.
strongly. If the share allotted to a widow is to be regarded as an estate of
the same character as that which she inherits, the decision of Dhondo v.
Balkrishna, Bom. H. C. P. J. 1883, p. 42, is pertinent, which reiterates the
rule that a widow is debarred from alienating the estate apart from any claims
of her husband's relations, see above, pp. 100, 101. According to the caste
usages generally, her disability to alienate fixed property is dependent on there
being male relatives of her husband, Borr. Col. Lith. 46, 64, 92, 103, 230, 367.
Some say relatives not more remote than nephew's sons, ibid. 325, comp. 349.
Yet her daughter and daughter's son succeed to it, showing it is regarded as
stridhana, ibid. 103. Exceptionally she is allowed to dispose of what she
inherited from her husband, ibid. 188, but not what she inherited from her
father, ibid. 165. She may alienate to relieve her necessities, ibid. 248, or to
pay debts and funeral expenses, &c., ibid. 281, though even in such cases the
sanction of the kinsmen may be required, ibid. 303.
In 78 Dekhan Castes it was found that a widow could give away property
if her husband had died divided from his family but not otherwise; Steele,
L. C. 373. By some she is allowed to dispose even of immovable property
given by her parents, ibid. 236.
(c) See above, p. 710.
id) Stokes's H. L. B. 105.
(e) Mit., Chap. II., sec. 8, paras. 2, 7; Stokes's H. L. B. 85.
(/) See above, and 2 Str. H. I. 402.
ig) See also 2 Str. H. L. 411, 412; Steele, Law of Caste, 62, 63.
(h) May., Chap. IV., sec. 9, para. 2; Stokes's H. L. B. 92. The Smriti
Chandrika, Chap. XII., para. 4, understands the prohibition against inequality
716 HINDU LAW. [book II.
§ 7 A. 2. — Partition of a naturally indivisible property. — Natur-
ally indivisible property must be disposed of, so that the
coparceners severally may derive from it the maximum of advan-
tage, a principle readily deducible from the text of Brihaspati,
May., Chap. IV., sec. 7, para. 22 (i). Thus roads or ways, wells,
tanks, and pasture-grounds ought to be used by all the copar-
ceners (k). The proceeds of an hereditary office are to be divided,
or it may be enjoyed in turns (l). Places of worship and sacrifice
not being divisible, the coparceners after separation are entitled
to their turns of worship (m). Where such a mode of enjoyment
to be directed only against the allotment of a quarter share to the eldest son,
and allows an inequality in a new distribution proportionate to that of the shares
brought in on reunion. This is expressly controverted by the Vyav. May., and
is reconciled with Brihaspati 's rule, " Brothers reunited share each other's
wealth," only by a forced construction. See Smriti Chandrika, Chap. XII.,
para. 16; Chap. XIII., para. 14. The Smriti Chandrika, Chap. XII., para. 6,
also assigns to reunited coparceners shares in any separate acquisition equal,
for each, to half what the acquirer retains. See p. 645, note (6), and above,
§ 7 A. 1 b, p. 710.
(i) Stokes's H. L. B. 78; Viram., Tr., p. 3; Col. Dig., Book V., T. 366,
Comm.
(k) Steele, L. C. 60, 61; Nathuhhai v. Bat Hansgavri, 1. L. E. 36 Bom. 379;
Govind v. Trimhak, ibid. 275.
(l) Steele, L. C. 216, 218, 229, from which it will be seen that local or family
custom in many cases allows a greater or less advantage to seniority.
(m) Anund Moyee et al. v. Boykantnath Roy, 8 C. W. E. 193 C. E. A
refusal to deliver up an idol for the plaintiffs to perform worship was held by
Pontifex, J., to constitute a cause of action, Dehendronath v. Odit Churn
Mullick, I. L. E. 3 Cal. 390. It is generally a privilege of the eldest to retain
the household gods. Steele, L. C. 222, 417.
A division of the right to worship may be made by assignment of turns,
Mitta Kanth v. Niranjun et al., 22 C. W. E. 438, S. C. ; 14 Bang. L. E. 166.
Property dedicated to the service of a family idol is disposable only by the
assent of all the members, and this cannot put an end to a dedication to a
public temple, according to a dictum of Sir M. Smith, Konwur Doorganath
Roy v. Ram Chunder Sen, L. E. 4 1. A., at p. 68. A religious fund or dedica-
tion is indivisible according to Viram. 249. Narayan Sadanand v. Chintaman,
I. L. E. 6 Bom. 393, agreeing with Rajah Vurmah Valia v. Ravi Vurmah
Kunhi Kutty, 1. L, E. 1 Mad. 235, pronounces a religious endowment inalien-
able. It refers to Khusalchand v. Mahadevgiri, 12 Bom. H. C. E. 214, and
many other cases ; but Mancharam v. Pranshankar, I. L. E. 6 Bom. 298 S. C.
Bom. H. C. P. J. 1882, p. 120, recognizing the general principle, allows an
exception in favour of persons in the line of succession, referring to Sitaramhhat
V. Sitaram Ganesh, 6 Bom. H. C. E. 250 A. C. J. Such a transaction does not
defeat the intended succession; it only accelerates it. In the absence of a son,
and with the consent of the heir, a holder of a temple grant may alienate it
DEBTS. 717
is impracticable or inconvenient, the property may be sold, and
its proceeds divided, or the rights of the coparceners otherwise
equitably adjusted by agreement. Clothes in use, vehicles, orna-
ments, furniture, books and tools are to be kept by the copar-
ceners who use them (n). But see also above, ^ 5 b. ad fin.,
p. 671. As already pointed out (p. 672) the family dwelling has
by some been regarded as indivisible property. This doctrine has
not been received by the Courts, except to the limited extent
above indicated. A suit for the partition of a family dwelling
may be brought by the purchaser at an execution sale of the
rights of a coparcener, according to Jhuhhoo hall Sahoo v. Khooh
Lall et al. (o). But a partial partition cannot be enforced if it
will destroy the intrinsic value of the whole property, a money
compensation being given instead of the share (p).
A division ^of rents and other profits of land or houses called
Phalavibhaga, is permissible, and constitutes a valid partition,
though distinguished from the ordinary distribution in specie.
The rule extends to the division of the profits of a Vatandari vil-
lage (pp). But such a distribution cannot be taken as conclusive
of partition (q). With the case quoted on this point, however,
compare also Somangoiida v. Bharmangouda (r). The Smriti
Chandrika, Chap. XV., paras. 3, 4, says that a phalavibhaga,
which has discriminated the rights of the co-sharers to the produce
of the land, leaves them severally without a separate title to the
land itself (s). But this does not seem consistent with
principle (t).
§ 7 B. 1. Debts. — Debts due to the family may be distributed
for the maintenance of the worship, Steele, L. C. 237. By custom the rights
of a particular " tirth-upadya " to minister to pilgrims is divisible and
alienable, ibid. 85.
The interest of a temple servant in land held by him as remuneration may
be sold in execution, Lotlikar v. Wagle, 1. L. K. 6 Bom. 596.
(w) Manu IX. 200, 219; Mit., Chap. I., sec. 4, pi. 16, 19.
(o) 22 C. W. E. 294.
(p) Ashinullah v. Kali Kinkur, I. L. E. 10 Cal. 676; Rajcoomaree v. Gopal,
I. L. E. 3 Cal. 614.
ipp) Ruvee Bhudr v. Rupshunkur Shunkerjee et al., 2 Borr. 730.
iq) See above, p. 641.
(r) 1 Bom. H. C. E. 43.
is) So Amritao v. Abaji, above, p. 649. See, however, above, p. 641,
note (d), and Virasvami v. Ayyasvami, 1 M. H. C. E. 471.
(t) See above, pp. 642, 649.
718 HINDU LAW. [BOOK II.
or assigned to a single member as part of his share (v). An imme-
diate payment of his share of such debts cannot be claimed by any
member from his coparcener {w). The common debts due by
the family are to be distributed in the same proportion as the
shares of the common property {x), and the debts incurred in
carrying on a joint business override the rights of the co-sharers
in the property acquired by means of it (y) ; but the common pro-
perty and the other members of a joint family are not answerable
for a member's separate debt (z). From a passage in the
Mayukha, 1. c, para. 2, it might appear that the discharge of the
family debts is a necessary preliminary condition to a partition.
The passage of Katyayana, however, which is cited by Nilakantha,
(v) Where there has been a dishonest or wanton expenditure of the family
funds by one member, " a prodigal is to receive his share aft A: deducting the
amount he has dissipated on other than the necessary samskaras of the family,"
Steele, L. C, p. 62.
It may be noted that between Hindus the rule of damdupat, or limitation
of interest to the amount of the principal, applies even in the case of a mort-
gage where no account of the rents and profits has to be taken. The rule has
not been abrogated by Act XXVIII. of 1856 or by the Limitation Acts, Ganpat
Pandurang v. Adarji Dadahhai, I. L. K. 3 Bom., at p. 333. See Steele, L. C.
266, 266. The rule of damdupat is not applicable except where the defendant is
a Hindu, Nanchand Hansraj v. Bapusaheb Rustamhhai, I. L. B. 3 Bom. 131. It
is sometimes ignorantly supposed that the regular judicature of the British
Courts has increased the oppression of agriculturist debtors and small pro-
prietors. The incorrectness of this opinion is shown by Steele, L. C. 269, 271 ;
M. Elphinstone's Eeport on the Deccan, Bom. Jud. Sel., vol. IV., p. 143, 193;
Grant's Eep. ibid., pp. 241, 242; Brigg's Rep. ibid., 249; Chaplin's Rep. ibid.
260; Pottinger's Rep. ibid. 298, 326, 328, 337; Chaplin's Rep. ibid. 489, 495;
Robertson's Rep. ibid. 589.
(w) Lakshman Dada Naik v. Ramchandra Dada Naik, I. L. R. 1 Bom. 561.
(x) May., Chap. IV., sec. 6; Stokes's H. L. B. 72. When one of several
co-sharers in an estate pays the whole revenue, his suit to recover contribution
from the other co-sharers not resting on contract cannot be brought in the Small
Cause Court. Nobin Krishna Chakravarti v. Ram Kumar Chakravarti, I. L. R.
7 Cal. 605. See Act IX. of 1872, sec. 69; Ram Tuhul Singh v. Bisewar hall
Sahoo, L. R. 2 I. A. 131, 143; Gadgeppa Desai v. Apaji Jivanrao, I. L. R.
3 Bom. 237 ; for the circumstances under which contribution can and cannot be
recovered.
(y) Johurra Bibee v. Shreegopal Misser, I. L. R. 1 Cal. 470.
{z) Narsingbhat v. Chenapa bin Ningapa, S. A. No. 205 of 1877; Bom.
H. C. P. J. P. for 1877, p. 329; and above. Book I., Chap. VI., sec. 3 (b),
Q. 2, p. 550; 2 Str. H. L. 335; Mahableshvar v. Sheshgiri, Bom. H. C. P. J.
1881, p. 183. A vatandar's mortgage of his vatan property is not valid against
his heirs either under Reg. XVI. of 1827 or under Bom. Act III. of 1874, Kalu
Narayan v. Hanmapa, I. L. R. 5 Bom. 435.
PARTITION OF DEBTS. 719
is differently rendered by Colebrooke (a). Narada, as translated by
Jolly, p. 15, directs the brothers only to pay according to the
shares, if they separate, and Jimutavahana (b) says of another
passage of Narada, Pt. II., Chap. XIII,, si. 32, that it is intended
to inculcate the obligation of paying the father's debts (as that
which says " when sisters are married " merely prescribes the
duty), not to regulate the time of partition. The Smriti Chand-
rika. Chap. II., sec. 2, p. 23, says, that if there are assets, the
debts should be paid before partition. But Yajnavalkya (quoted
para. 18) prescribes merely that the debts and the assets shall be
equally distributed. In other passages (c) a distribution of the
debts amongst the coparceners is recognized, and the Dayakrama-
Sangraha, Chap. VII., para. 28 (d), expressly declares that the
debts may be discharged subsequently to partition.
If a distribution of the debts is made, the coparceners severally,
who desire to secure themselves against further claims on the
part of the creditors, should obtain the assent of the latter to that
arrangement (e). Without this the assets may be followed in
(a) Dig., Book V., T. 369.
(h) See Col. Dig., Book V., Chap. II., T. Ill; Smriti Chandrika, Chag. II.,
sec. 2, para. 20.
(c) May., Chap. IV., sec. 4, para. 17; Stokes's H. L. B. 62; Mit., Chap. I.,
sec. 3, para. 1, ibid. 381; Col. Dig., Book I., Chap. V., Text 149, 186; Book V.,
Chap. III., Text 111, and Jagannatha's Comm., Chap. VI., Text 376.
(d) Stokes's H. L. B. 616.
(e) Seel Str. H. L. 191, and the authorities quoted there; and the case of
Bholanath Sirkar v. Baharam Khan et al., 10 C. W. E. 392 C. E. The sons of
deceased members are answerable after partition only for their proper shares of
a father's debt, according to Col. Dig., Book I., T. 182-6. See Narada, Chap. I.,
sec. III., para. 2, Tr., p. 15; Vishnu, Tr., p. 46. The Sarasvati Vilasa,
sec. 96 ff, understands this as relating to a separate paternal debt distinguished
from a family debt binding all, but in Doorga Persad v. Kesho Persad, I. L. E.
8 Cal. 666; S. C, L. E. 9 I. A. 27, the Judicial Committee say of sons of a
member of a joint family (according to the statement at the beginning of the
judgment) : " But it appears to their Lordships that the plaintiffs were not
liable for the whole debt for which their father and other joint members of the
family were originally liable, the debt having been apportioned amongst the
several members of the family who had separated and several bonds given for
the several portions of the debt. It appears, therefore, to their Lordships that
the High Court was right, and that the infants were not bound to pay the
whole of the debt for which the father was at one period jointly liable with the
other members of the family, and that they were liable only for the father's
portion of the debt." This they were ordered to pay, though their ostensible
guardian was not the legal guardian and had no right to defend the suit in
720 HINDU LAW. [BOOK II.
their hands (/), though a separated son, it is said, is not answer-
able during the father's life for any debt contracted by his
father (g). In Mahada v. Narain Mahadeo (h), the Bombay
Sudder Court ruled that the whole of the family property remains
liable for a debt (properly) contra-cted by any member, although
another may have obtained a decree for partition (i). For the
separate debt of a single coparcener, the common property is not
liable, but the creditor may, as we have seen, make the share
available by enforcing a partition (k). In the common case of a
mortgage acquiesced in by the co-sharer seeking a partition he is
liable generally in proportion to his share in the mortgaged pro-
perty to the charges upon it (1). This does not enable him to
redeem his own share alone, the obligation being indivisible, but
their name. If several bonds for the several shares of the debts had been
accepted by the creditors in discharge of the original joint debts, there could
of course be no claim except upon the several obligors. But the Hindu Law
seems apart from that to impose only a several obligation on the co-sharers
except in virtue of any of them possessing himself of the whole estate or more
than his share of it. See above, pp. 76, 569.
In an opinion given at 2 Str. H. L. 283, Colebrooke says that the distribution
of the debts in a partition is to be regarded merely as an adjustment amongst
the parceners not affecting a creditor's right against all or any of them. The
caste rules, as at Borradaile's Collection, Lith. 41, seem merely to contemplate
a partition of the debts, but so far as property subject to a charge had been
taken the taker would probably be liable for the common debt. See Steele,
L. C. 59, 219, 409.
(/) See Col. Dig., Book I., Chap. V., T. 167, note; T. 169, and Jagannatha's
Comm. ; Col. in 2 Str. H. L. 283.
(g) Col. Dig., loc. cit., and Amrut Row Trimhuck v. Trimhuck Row
Amrutayshwur, Bom. Sel. Ca. 249. See 2 Str. H. L. 277. And that a minor
cannot be called on during his minority, ibid. 279. In Bagmal et al. v.
Sadashiw et al., S. A. No. 70 of 1864, Arnould and Tucker, JJ., held that
separated sons are liable after the father's death for debts incurred by him
before the partition. As to the personal liability for a father's debts, see
above, p. 75; and below, Book II., Vyav., Chap. I., sec. 1, Q. 5. As to the
liability of the property, see Jamiyatram v. Purhhudas, 9 Bom. H. C. B. 116,
referred to in Book I., p. 73; and also pp. 168, 596. In Harreedass v. Ghirdur-
dass, S. D. A. Sel. Ca. 46, on attachment of a parcener's share it was made
liable for its proportion of the funeral expenses of the parcener's mother. See
Smriti Chandrika, Chap. XIII., paras. 12, 13.
(h) 3 Morris, 346.
(i) See Narada, Pt. I., Chap. III., si. 16.
ik) See supra, § 6 b; also pp. 163, 254, 541, 543.
(l) Bhyruh Chunder Mudduck v. Nuddiarchand Paul, 12 C. W. E. 291; Laljee
Sahoy v. Fakeerchand, I. L. E. 6 Cal. 135.
RIGHTS AND DUTIES ARISING ON PARTITION. 721
he may redeem the whole- (m), and as a condition of giving up their
proper shares to the oo-owners he may require payment to him of
such sums by way of contribution as shall be found due according
to the nature of the original transaction and on a general
adjustment of the accounts amongst the co-sharers (n). While
the mortgagee is thus secured against any ' ' fragmentation ' ' of his
security he must serve all co-sharers with notice of intended fore-
closure under the Bengal Law (o), and if he obtains a decree on
the mortgage debt and executes it by sale against the mortgaged
property must sell both his own and the mortgagor's interest
therein. And even though the mortgagor's interest only is speci-
fied as the object of sale, yet the mortgagee who has promoted the
sale is bound by an estoppel against afterwards setting up his
own right (p).
In Sabaji Savant v. Vithsavant {q) a one-sixth share was
awarded to two brothers by a decree for partition. They were dis-
possessed under a decree obtained by the mortgagee of an un-
divided one-sixth from the common ancestor (r). It was held that
they could not obtain a fresh partition in execution of their former
decree, though it was suggested they might have a remedy
against their former coparceners by an independent suit.
§ 7 B. 2. Other liabilities, that is, provisions for the mainten-
ance or portions of persons not entitled to shares, as described
above, sec. 6 B (s), may be distributed by agreement amongst
the co-sharers. But the estate at large is liable, at least in the
hands of the members of the family making a partition (f), and
(m) The practice has sometimes been otherwise, see Musst. Phoolbash Koon-
wur V. Lalla Jogeshwar Sahoy, L. R. 3 1. A., at p. 26. See Norender Narain's
Case, below.
(n) Rama Gopal v. Pilo, Bom. H. C. P. J. F. 1881, p. 161.
(o) Norender Narain Singh v. Dwarka Lai Mundun, L. R. 5 1. A., at p. 27.
(p) See Hart v. Lakshman, I. L. R. 5 Bom. 614, quoting Syed Imam
Momtazooddeen Mahomed v. Rajkumar Ghose, 14 Beng. L. R. 408 F. B. ;
Narsidas Jitram v. Joglekar, I. L. R. 4 Bom. 57; Ind. Evid. Act., sec. 115;
Chooramun Singh v. Shaik Mahomed Alt, L. R. 9 I. A. 21, 25.
(q) Bom. H. C. P. J. F. 1881, p. 193.
(r) Ramchandra Dikshit v. Savitrihai, 4 Bom. H. C. R. 73 A. C. J. and per
Lord Hardwicke in Penn v. Lord Baltimore, 2 W. & T., L. C. 844.
is) See also 73, 163, 164, 229, 708, 712; Book II., Vyav., sec. 1, Q. 9;
Narhar Singh v. Dugnath Kuer, I. L. R. 2 All. 407; above, pp. 244, 245.
(t) Ramachandra Dikshit v. Savitrihai, 4 Bom. H. C. R. 73 A. C. J., referred
to above; Adhiranee Narain v. Shona Malee et al., I. L. R. 1 Cal. 365; Narada,
Part II., Chap. XIII., paras. 25-29; Manu V. 148.
H.L. 46
722 HINDU LAW. [BOOK II.
coparceners who desire to limit their responsibility must obtain
the assent of the persons interested. At Calcutta it ha& been
held (v) that the purchaser of part of an estate, subject to a charge,
may be sued singly for the whole amount due, and the same
principle would probably be applied in the case of a purchaser
with notice of the lien or liability to a charge of the kind we are
now considering (w). Lastly, if, contrary to the knowledge and
expectation of the coparceners who made the partition, an absent
coparcener supposed to be dead should come forward to claim
his share, or the widow of one deceased should give birth to a son,
the proper share of this additional parcener must be made by pro-
portionate deductions from the shares distributed (x). The co-
parceners in existence, however, or begotten at the time of a parti-
tion, and those only, are entitled to shares. After-bom members
of the family share only with their father or those united with
him (y).
A son who has for money relinquished his share to his father
stands thenceforth in the position of a separated son (z). But as a
separated son he succeeds in preference to the widow, though
the father can dispose of the estate (a).
After a partition has been made a son bom to a coparcener
(including a father in relation to sons separated from him in such
partition) succeeds to the share and to the acquisitions of the
(v) Prosonno Coomar Sein v. The Rev. B. F. X. Barhoza, 6 C. W. K.
263 C. E.
{w) S. Bhagahati Dasi v. Kanailal Mitter et al., 8 B. L. R. 226; B. Goluck
Chunder Bose v. R. Ohilla Dayee, 25 C. W. R. 100 C. R.
(x) Mit., Chap. I., sec. 6, paras. 1, 8; Stokes's H. L. B. 393-6; May.,
Chap. IV., sec. 4, para. 36; Stokes's H. L. B. 66; Col. Dig., Book V.,
Chap. VII., sec. 2, T. 394; Chengama v. Munisami, I. L. R. 20 Mad. 76.
(y) Yekeyamian v. Agniswarian et al., 4 M. H. C. R. 307; Mit., Chap. I.,
sec. 6, pi. 4; Stokes's H. L. B. 394; Ganpat Venkatesh v. Gopalrao, I. L. R.
23 Bom. 636; Shivajirao v. Vasantrao, 1. L. R. 33 Bom. 267.
(z) Steele, L. C. 56, 68, 61.
(a) See Balkrishna Trimhak v. Savitrihai, 1. L. R. 3 Bom. 64. The
descendant who has taken a part of the property in discharge of his claims and
left the family (Steele, L. C. 213) has thus forfeited his rights as a co-sharer
in any further partition, but not as heir on failure of the members who remained
united and their representative descendants. These rights are reciprocal.
(Steele, L. C. 233, 422.) Amongst some castes this heirship of the brethren
excludes the daughter except as to gifts from her father (Steele, L. C. 425) and
even the widow (ibid. 424, 423), though in fewer cases.
RIGHTS AND DUTIES ARISING ON PARTITION. 723
separated coparcener to the exclusion of his former co-sharers (b).
He stands on the same footing towards the paternal estate as a
son who remained united with his father when a separation
occurred between the latter and his other coparceners (c). This
does not, however, prevent a gift of a moderate amount to a
separated son (d) as to one unseparated.
Partition does not finally close all claims of the father and sons
on each other (e) or deprive a separated son of his right of inheri-
tance in competition with another heir, as for instance a reunited
coparcener not a son (/). In case of absolute indigence, their
■claims on each other revive (g). So too the claim of a mother or a
wife to support is not extinguished by the allotment to her of a
share (h).
A suit on an alleged partition which the plaintiff fails to estab-
lish does not bar a subsequent suit by him as a coparcener for
partition of the property set forth as undivided (i).
The execution of a decree for partition of an estate subject to
payment of land revenue is to be made by the Collector (/c).
(6) Gaut. Ad. 28, para. 26; Narada, Pt. II., Chap. XIII., para. 44; Steele.
L. C. 69, 406; Note (y) above, p. 722.
(c) See Mit., Chap. I., sec. 6, para. 2; Vyav. May., Chap. IV., sec. 4,
paras. 33, 34.
(d) Mit., Chap. I., sec. 6, paras. 13, 14, 15. See Lakshman Dada Naik v.
Ramchandra Dada Naik, I. L. E. 1 Bom. 561, 567; S. C, L. E. 7 I. A. 181.
Not by will against an unseparated son, ibid.
(e) Viram., Tr., pp. 64, 218. See 2 Macn. 114, 148; Hirata, quoted in Col.
Dig., Book v., T. 23.
(/) Viram., Tr., p. 218; Ramappa Naiken v. Sithammal, I. L. E. 2 Mad. 182.
ig) Steele, L. C. 40, 178, 179; Smriti Chaudrika, Chap. II., sec. 1,
para. 31 ss. ; Himatsing v. Ganpatsing, 12 Bom. H. C. E. 94; Ramchandra v.
Sakharam Vagh, I. L. E. 2 Bom. 346 ; Savitribai v. Laxmibai, I. L. E. 2 Bom.,
at p. 690. See Sree Cheytania Anunga Deo v. Pursuram Deo, Mor. Dig., p. 442,
No. 38. So also a guru and a chela are bound to support each other in distress ;
Steele, L. C. 442.
(h) Col. Dig., Book V., T. 88, Coram. See 1 Str. H. L. 67, 176; Smriti
Chandrika, Chap. II., sec. 1, para. 3 ss. Steele, L. C, 40, states the duty
generally.
(t) Konerrav v. Gururav, I. L. E. 6 Bom. 589.
(k) Act X. of 1877, sec. 266. Eules for the performance of the duty are
provided by Bombay Act V. of 1879, sec. 113.
Joint owners have, under English Law, equal rights to custody of title-deeds.
On a partition they are usually assigned to the sole owner or the owner of the
largest share of the portions to which they severally relate, but with a right in
all interested to see and have copies of them. See Lambert v. Rogers, 1 Meriv.
724 HINDU LAW. [BOOK II.
Repugnant conditions cannot be annexed to the separate estates
taken under a partition (l).
489 ; Jones v. Robinson, 3 De G. M. & G. 910. Hindu custom assigns the
custody to the head of the family with liberty of inspection to all interested.
Steele, L. C. 220.
(l) K. V enkatramanna v. K. Bramanna Sastralu, 4 Mad. H. C. E. 345.
VI.— DIGEST OF VYAVASTHAS.
PARTITION.
CHAPTEK I.
BETWEEN THE HEAD OF A FAMILY AND HIS FIRST
THREE DESCENDANTS.
SECTION I.— OF ANCESTRAL PKOPEETY.
Q. 1. — Can a son claim a share of the ancestral and undivided
property from his father?
A. — A son has no right to demand a share of the an<jestral and
imdivided property from his father against his wish, unless there
are good reasons for the demand. These reasons may be stated
thus : (1) The father has rehnquished his claim to his property.
(2) He is dissipating his property. (3) He is in an unsound state
of mind. (4) He is very old. (5) He is afflicted with an incurable
disease. In all these cases a son can claim a share of the ances-
tral property from his father, though he may be unwilling to
give it.
Surat, January 3rd, 1859.
Authorities. — (1) Vyav. May., Dayabhaga, p. 91, 1. 7; (2*) Mit. Vyav.,
f. 60, p. 1, 1. 7 :
*' For the ownership 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).
(Mit., Chap. I., sec. 6, para. 3; Stokes's H. L. B. 391.)
Remarks. — 1. The passage quoted by the Sastri, as well as the rules derived
therefrom, refers to the self- acquired property of the father. Regarding the
fourth ground for which the son is said to be able to demand division — old age —
726 HINDU LAW. [BOOK II.
it ought to be remarked that it holds good only if the father is unable to manage
his affairs on account of old age (a).
2. According to the Mitakshara, loc. cit., and ibid, paras. 5 and 8, the son
has a right to demand a division of ancestral property. Nilakantha states the
same. (May,, Chap. IV., sec. 4, para. 13; Stokes's H. L. B. 51.) See also
Duyashunker v. Brijvulluhh (b).
Q. 2. — A man has a right to one-third of the property left by his
deceased father. The man has two sons. The question is, how
the man's share should be divided among the grandsons?
A. — The sons and the grandsons of the deceased have equal
right to the share of the grandfather's property, but as the father
of the two grandsons is alive and is in a good state of health, the
share cannot be divided unless the father has no objection thereto.
The Sastri assigns many conditions to the sub -division of such
share, and it is, therefore, impossible to say what shall be the
share of each grandson in the share of the son.
Surat, March ISth, 1858 (c).
Authority. — *Mit. Vyav., f. 50, p. 1, 1. 7 (see the preceding Question).
Kemarks. — 1. The sons can enforce the partition of the ancestral property,
and it must be divided equally between the father and his sons if the father
holds a separated share. If he is united with his brethren his intervening
will may defeat the sons' desire or partition unless they can make out a case
of unfair dealing (d).
2. The Sastri thinks of the partition of property acquired by the father himself,
or of the grandfather's property during his life and that of the father.
Q. 3. — Can the sons of a man divide the ancestral property
among themselves without his consent?
A. — A man's sons have a right to the ancestral property, but if
such property, after having passed from the family, was regained
by the father, it must be considered as his acquisition. This, as
(a) See Steele, L. C. 216.
(.6) Bom. Sel. Co., pp. 44, 45. See above, pp. 611 ss.
(c) Similar answers were received from Ahmednuggur, February 2l8t, 1851
Broach, May 22nd, 1857.
(d) See above, pp. 564, 608.
VYAV.,CH. I. S. 1.] ANCESTRAL PROPERTY. 727
well as that property which may have been directly acquired by
the father, cannot be divided without his consent.
Tannd, March 2nd, 1854 (e).
Authorities.— (1) Mit. Vyav., f. 60, p. 1, 1. 7 (see Q. 1 of this sec); (2) f. 47,
p. 1, 1. 7; (3) Vyav. May., p. 91, 1. 2; (4) p. 91, 1. 4.
Eemarks. — 1. The sons have a right to demand from their father a division
of the ancestral property, and can force him by law to make it. But they
cannot divide it privately amongst themselves without reference to their father.
2. As to the meaning of " recovered," when applied to a family estate, see
Bissessur Chuckerbutty et al. v. Seetul Chunder Chuckerbutty (/), and § 5 a. 2 b,
p. 661.
3. Prof. H. H. Wilson observes on this subject, in vol. V. of his works, at
p. 68 : " They leave no doubt that a man has neither temporally nor spiritually
an absolute command over the whole of any description of his property : he
may certainly make away with a great part of it, but there is a limit. That
limit is an adequate provision for his family, and we can conceive no more
difficulty as to the determination of this provision by the Court than there is
in the ascertainment of the sum a widow is entitled to for her maintenance.
In the above texts also is to be understood the existence of no distinction
between self- acquired and inherited property, and they all apply to a man's
wealth generally, making it imperative upon him to secure provision for his
family before he alienates even self -acquired wealth. With this reservation,
he may dispose of property he has gained during his own life-time as he pleases,
as according to Katyayana ' except his whole estate and his dwelling house,
what remains after the food and clothing of his family a man may give
away ' {g). Food and clothing are, however, not to be understood in their literal
acceptation only, but imply maintenance, as appears from other texts. With
regard also to movable ancestral property, there is authority for considering
that to be at the father's disposal, according to the text of Yajnavalkya : ' Of
precious stones, pearls, and corals, the father is master of the whole, but of
the whole immovable property neither father nor grandfather is master ' (h).
The text of Vishnu, however, goes farther and declares that ' the father and
son have equal ownership in the whole of the grandfather's wealth.' As, how-
ever, the control over movable property, consisting at least of money or jewels,
is a nullity, the distinction may be admitted, and the power, if not the right,
of a father to dispose of such property at his pleasure is in general undisputed ;
at the same time it may be safely said that the alienation of this property, like
that of self-acquired wealth, is only allowable after provision made for the
(e) Similar answers were received from Sural, May 27th, 1847 ; Ahmednuggur,
July 18th, 1850; Poana, October 18th, 1854; Dharwar, October 25th, 1868.
(/) 9 C. W. R. 69 C. R.
ig) Vyav. May., Chap. IX., p. 4; Stokes's H. L. B. 134.
(h) Quoted from the Mitakshara in the Vyavahara Mayukha, Chap. IV.,
sec. 1, p. 5; Stokes's H. L. B. 43; Dayakrama-Sangraha, Chap. VI., p. 19 f . ;
Stokes's H. L. B. 511; and Dayabhaga, p. 56 (Chap. II., sec. 22; Stokes's
H. L. B. 204).
728 HINDU LAW. ' [BOOK II.
family, and that the unequal partition of both amongst sons, which is authorized
by special considerations, may be set aside, if the least favoured son can estab-
lish undeniably that he has been deprived of a due share of his father's wealth
by that father's unjust anger towards himself, or undue partiality for another
son " (i).
Q. 4. — A Yogi had four sons. Two of the&e, one a minor and
another of full age, hved with their father. The other two, who
had a quarrel with their father, divided the house, which was the
ancestral property of the family, against the will of their father
and in his absence. Can the two sons divide the property, or
must such a division be cancelled?
A. — The division must be cancelled.
Khdndesh, October llth, 1852.
Authority. — Vyav. May., p. 90, 1. 2.
Eemarks. — 1. The Sastri's answer is right, because the division had been
made, as it would seem, without due regard to the equal rights of the other
brothers. But it must be understood that, though this division must be can-
celled, the sons may according to the Sastras force their father to make a
division of his ancestral property.
2. The authority quoted by the Sastri which declares that " brothers shall
divide the estate after their father's death " (k) refers to self-acquired property,
and is, therefore, out of place.
Q. 5. — A man has instituted a suit against his father for a
moiety of the ancestral property as his share. The father has
answered that he has contracted some debts on account of the
maintenance of the family, and that his son cannot claim a share
of the property until the debts have been paid. The question,
therefore, is, whether a son can claim a share of the property
without paying the debts ?
A. — The obligation of liquidating the debts rests on the father.
His son is not at all responsible for them as long as the father is
alive. The father and the son have an equal share in the ancestral
property of the family. The son, therefore, can claim a moiety of
the property without being obliged to pay the debts.
Surdt, July 6th, 1860.
(t) Comp. Steele, L. C. 213, 408; Col. Dig., Book V., T. 74, 76, 77, 78;
and see above, pp. 206, 592, 595, 599.
(k) Borradaile, May., Chap. IV., sec. 4, para. 1; Stokes's H. L. B. 47.
VYAV.,CH. I. S. 1.] ANCESTRAL PROPERTY. 729
AuTHOBiTiES.— (1) Mit. Vyav., f. 19, p. 2, 1. 8; (2) f. 60, p. 1, 1. 7 (see
Chap. I., sec. 1, Q. 1); (3) f. 46, p. 2, 1. 11 :
" Even a single individual may conclude a donation, mortgage, or sale of
immovable property, during a season of distress, for the sake of the family,
and especially for a pious purpose,"
" The meaning of that is this : While the sons and grandsons are minors and
incapable of giving their consent to a gift and the like, or while brothers are so
and continue unseparated, even one person, who is capable, may conclude a
gift, hypothecation, or sale of immovable property, if a calamity affecting the
whole family require it, or the support of the family render it necessary, or
indispensable duties, such as the obsequies of the father or the like, make it
unavoidable." (Mit., Chap. I., sec. 1, paras. 28, 29; Stokes's H. L. B. 376.) (/).
Eemarks. — 1. " In respect of the grandfather's estate the sons are not
dependent on the father, as they are in respect of the father's self-acquired
property. Consequently the partition of the grandfather's estate may be made
even against the father's will, and the rule regarding the father's two shares
does not obtain " (w).
2. Though the Smritis do not provide for a son's paying the family debts
while the father is alive and capable, that is because they contemplate the father
as the sole manager (n). The passage cited shows that the Sastri's view was
too narrow, for if an ordinary member may incumber the estate for the needs
of the family (a), much more may the father; yet his power of dealing with
it would be crippled if a son could at any moment claim his share free from
its proportional burden. The customary law imposes on sons an obligation to
pay all debts reasonably incurred in the administration of the affairs of the
family (p), as on the father of paying those necessarily incurred by sons living
with him unless he has expressly warned the creditor against lending to
them (g).
3. The rights of a decree-holder for the father's debts were preferred to those
of a decree-holder for the debts of the owner himself (r). This would probably
not be admitted in Bombay unless the property had been attached before the
father's death in execution of the decree against him. See above, pp. 73, 161,
192 (s).
i
(l) See Narada, Pt. I., Chap. III., paras. 2, 3, 4, &c. above, and Book II.,
pp. 668, 569, 575, 595, 598.
(m) Viram. Tr., p. 66. The father may reserve to himself one extra share
of all property acquired by his own exertions, and as respects that property he
may even deprive his son of succession to it ; but the son has an indefeasible
right to inherit descended property," Steele, L. C, p. 58.
(n) See above, pp. 698, 599 ; Steele, L. C. 406.
(o) Above, p. 588; Steele, L. C, 54, 398.
(p) Steele, L. C. 40, 217. Above, p. 164.
(g) Steele, L. C. 178.
(r) Gunga Narain v. Umesh Chunder Bose et al, C. W. R. for 1864, p. 277.
(s) For the Madras Law see above, pp. 162, 586.
730 HINDU LAW. [BOOK II.
Q. 6. — A person had six sons, the eldest of whom is dead. The
eon of the deceased sues his grandfather for a share of the family
property. Is the claim admissible?
A. — The grandson cannot claim any share of the property which
his grandfather may have himself acquired. He may, however,
claim a share of that which may have descended from his ancestors.
Dhai-war, 1846 (t).
Authority.— * Mit. Vyav., f. 50, p. 1, 1. 7 (see Chap. I., sec. 1, Q. 1).
Eemarks. — 1. The authority quoted refers only to the case of a father and
a son.
2. The question, whether a grandson can force his grandfather to make a
division of the property which he inherited from his ancestors, has not been
touched directly in the Hindu Law books. Still the correctness of the Sastri's
opinion may be shown by the following considerations : The position of a son's
son towards his grandfather, and his rights to the ancestral property, are
exactly the same as those of a son failing the latter. Both have by and from
their birth an ownership in the family property — a right which is indefeasible
and unobstructible (v). Moreover, on the death of his father, the grandson
takes his place in regard to religious ceremonies and represents him ; it is only
consistent, therefore, that the grandson's right to demand a division of his
grandfather's ancestral property should be the same as that of his father (to).
Q. 7. — A man has two sons. He equally divided his property
between them. He gave one share to the eldest son and the other
to his grandson, because his younger son was abroad. The ques-
tion for consideration in the case is, whether a father can,
without the consent of his son, give his share to his grandson ?
A. — The father could not give his son's share to his grandson,
unless the son is incompetent to receive it.
Ahmednuggur, September 12th, 1855.
Authorities.— (1) Mit. Vyav., f. 47, p. 1, 1. 7; (2) f. 60, p. 1, 1. 13; (3) f. 60,
p. 2, 1. 8 ; (4) f. 46, p. 2, 1. 14 ; (5) f. 50, p. 1, 1. 7 ; (6) f . 12, p. 1, 1. 16 ; (7) Vyav.
May., p. 161, 1. 8; (8) p. 94, 1. 1; (9) p. 94, 1. 3; (10*) Viramit., f. 181, p. 2,
1. 16:
" Now both that partition which is made at the desire of sons during the
(t) A similar answer was received from Sural, September 19th, 1864.
(v) See Mit., Chap. I., sec. 1, para. 3; Stokes's H. L. B. 365; and Book I.,
pp. 63, 71 ; Steele, L. C. 58, 63, 40; Col. Dig., Book V., Chap. II. ad. init.
(w) See also Book II., p. 610; and Nagalinga Mudali v. Suhbiramaniya
Mudali et al, 1 M. H. C. E. 77
VYAV.,CH. I. S. 1.] ANCESTRAL PROPERTY. 731
lifetime (of their father), and that which is made after the father's death, are
made even at the desire of one (coparcener). Therefore, that also, which has
been stated by Katyayana, in his chapter on Partition, ' They shall deposit the
wealth of minors and absentees, preserving it from expense, with (their)
relations and friends,' can take effect. For, if a partition could not take place
without the permission of such (minors or absentees) the statement that their
wealth shall be deposited with relations or friends would be improper."
Remark. — According to the above passage it would appear that an absent son
must not be simply passed over in favour of his son. But there would be no
objection to deposit his share with the latter, in case the son's son is of age and
fit to take care of it. See also Book II., p. 626.
Q. 8. — A man gave a portion of the property belonging to his
father to his son, who had separated from him. It remained in
the possession of his son for ten years. The son afterwards sold
it. By this time his half-brothers, bom after the giving of the
property, filed a suit and asserted that the.y had a right to a
portion of the property given by their dec-eased father. The ques-
tion is, whether or not sons, born after their father had giren
away his property, can claim a portion of it, even when it has
been sold to another?
A. — When a father and his sons have divided their property
and become separate, sons born after the partition can have no
claim to the property which passed into the hands of their
brothers. They cannot, therefore, sue those who have received
a share of the property, nor those to whom it has been sold.
Tanna, July 12th, 1851.
Authority. — Mit. Vyav., f. 50, p. 2, 1. 7 :
" A son born before partition has no claim on the wealth of his parents, nor
one, begotten after it, on that of his brother." (Mit., Chap. I., sec. 6, para. 4;
Stokes's H. L. B. 394.)
Ebmarks. — 1. Sons born after partition have, however, an exclusive right to
their father's share, and to any property which he may have acquired after
partition (x).
2. In the case of Baee Gunga v. Dhurumdass Nurseedas (y), the interest of
a son still unborn was admitted as against a dissipation of property by the
father; but in the case of Buraik Chutter Singh et al. v. Greedharee Singh
et al. (z), it was held that a grandson unborn at the time cannot afterwards
(x) See above, pp. 64, 722.
iy) Bom. S. A. R. for 1840, p. 16.
(z) 9 C. W. R. 337.
732 HINDU LAW. [BOOK II.
question an alienation of ancestral property made by his grandfather with his
father's assent. It is only on the actual birth of the son that his co-ownership
arises; it is not retrospective, as adoption to some extent is when made by a
widow. Perhaps this principle may be applied to explain the case of Giridhari
V. Kanto (a), the debts there having apparently been contracted before the birth
of a son (b). A son cannot contest an alienation made by his father before he
was begotten (c), or adopted (d).
SECTION 2.— OF SELF-ACQUIEED PEOPEETY.
Q. 1. — Can a man and his son divide their property between
them?
A. — The property left by the grandfather may be equally shared
by the son as well as his father. The property acquired by the
father should be divided into three shares, two of which should
be allotted to the acquirer and one to his son.
Sholapoor, January 29th, 1855.
Authorities.— (1) Viram., f. 105, p. 2, 1. 3; (2) Vyav. May., p. 183, 1. 6;
(3) p. 174, 1. 3; (4) p. 180, 1. 3; (5) p. 180, 1. 4; (6*) Mit. Vyav., f. 50, p. 1, 1. 7
(see Chap. I., sec. 1, Q. 1); (7*) f. 50, p. 1, 1. 11 :
" So does that which ordains a double share (relate to property acquired by
the father himself). ' Let the father making partition reserve two shares for
himself.' " (Mit., Chap. I., sec. 5, para. 7; Stokes's H. L. B. 392.) But see
also paras. 9, 10; Stokes's H. L. B. 393; Col. Dig., Book V., sec. 96; Narada,
Pt. II., Chap. XIII., si. 12.
Q. 2. — A man has four or five sons, and it is probable that he
may have more. For some reason known only to the man, he
framed a memorandum, showing what each of his sons was to
receive on account of his share. Can this memorandum be taken
advantage of by the sons in claiming a share during the lifetime
of the father?
A. — A father may give shares to his sons if he chooses, but sons
(a) L. E. 1 1. A. 320.
(b) See Chap. I., sec. 2, Q. 8.
(c) Jado Singh v. Musst. Ranee, 5 N. W. P. R. 113.
(d) Ramhhat v. Lakshman Chintaman, I. L. R. 5 Bom. 630.
VYAV., CH. I. S. 2.] SELF- ACQUIRED PROPERTY. 788
have no right to demand shares of any property acquired by their
father while he is ahve. The memorandum does not seem to be
authoritative, and cannot be taken advantage of by the sons.
Dharwar, January 11th, 1850.
Authority. — Mit. Vyav., f. 47, p. 1, 1. 12 :
" One period of partition is, when the father desires separation as expressed
in the text [para. 1], ' When the father makes a partition.' Another period is
while the father lives, but is indifferent to wealth, and disinclined to pleasure,
and the mother is incapable of bearing more sons ; at which time a partition
is admissible, at the option of the sons, against the father's wish; as is shown
by Narada, who premises partition subsequent to the demise of both parents,
' Let sons regularly divide the wealth when the father is dead,' and adds, ' or
when the mother is past child-bearing, and the sisters are married, or when
the father's sensual passions are extinguished.' Here the words 'Let sons
regularly divide the wealth ' are understood. Gautama likewise having said
* after the demise of the father, let sons share his estates,' states a second
period, ' Or when the mother is past child-bearing '; and a third, ' While the
father lives, if he desire separation.' So, while the mother is capable of bearing
more issue, a partition is admissible by the choice of the sons, though the
father be unwilling, if he be addicted to vice or afflicted with a lasting disease.
That Sankha declares, ' Partition of inheritance takes place without the father's
wish, if he be old, disturbed in intellect, or diseased.' " Mit., Chap. I., sec. 2,
para. 7; Stokes's H. L. B. 378.
Kbmark.— See Book II., p. 607 ss. ; 1 Str. H. L. 193. The Mit., Chap. I.,
sec. 5, para. 8 (e), assigns to the sons power to demand a partition of ancestral
property at any time, while para. 10 gives to the father full power, as against
control by the sons, of dealing with property acquired by himself. At Madras
it has been said, in Nagalinga Mudali v. Suhbiramaniya Mudali et al. (/), that
paras. 8 and 11 of sec. 5 relate to a partition of ancestral property, while sec. 2
relates to property acquired by the father himself. The Mit., Chap. I., sec. 2
(see Q. 4), recognizes unequal partition of self-acquired property by the father
as still consistent with the Hindu Law, limited, however, so as not to allow
more than a deduction of one-twentieth, one-fortieth, and one-eightieth for the
first, second, and third sons respectively (g). It applies the prohibition against
(e) Stokes's H. L. B. 393.
(/) 1 M. H. C. R. 77.
ig) So Smriti Chandrika, Chap. II., sec. 1, paras. 3, 8, 22; Chap. VIII.,
para. 26; Madhavija, paras. 5, 9; Varadraja, pp. 5, 8. These deductions had
reference very probably as originally instituted to the rank of the wives
married in succession from amongst the different classes. Such a ground of
difference in the rank of the sons is found in various parts of the world, as
ex. gr. amongst the Swathis in the Himalayas.
In Kangra it appears that the eldest son still takes either one-twentieth
or else some particular field or chattel as an addition to his aliquot share in an
inheritance. In return he has to pay a proportionally extra share of the
paternal debts should there be any. Panj. Oust. Law, vol. II., pp. 182-3, 225.
734 HINDU LAW. [BOOK II.
any unequal division only to a partition by sons amongst themselves. See
Q. 3, 4 below. Thus the power of disposition, generally affirmed in para. 10
of sec. 6, and extended by the High Court of the N. W. P. to ancestral pro-
perty (h), does not imply that of a capriciously unequal distribution, that case
being expressly provided against in sec. 2, para. 13 (t). The passage in sec. 6,
para. 10, is further qualified by sec. 1, para. 27 (k), followed in Muttumaran v.
Lakshmi (Z).
The Vyav. May., Chap. IV., sec. 6, para. 2 (m), extends the prohibition
against inequality to a partition by a father. The Viramitrodaya, cited infra,
follows the Mitakshara. Narada allows the father to give the eldest the best
share or to distribute according to his inclination, Narada, Pt. II., Chap. 13,
para. 4. This passage points to the special deductions, as Pt. I., Chap. III.,
paras. 36, 40, to the father's complete authority. The Mit., Chap. I., sec. 5,
pi. 7 (n), limits similar passages to the self -acquired property, and the father's
independence as to such property in a partition seems to mean independence
only of the sons, not freedom to depart from the rules prescribed by the
Sastras (o).
In Bahirji Tanaji v. Oodatsing et al. (p), the High Court of Bombay ruled
that a grantee of an Inam village from the Rajah of Satara might by will
settle it on his two junior wives and their children to the exclusion of his
eldest son. See the Remarks under Questions 4 and 5, and Book II. § 7, on
the Rights and Duties arising on Partition.
Q. 3. — A man has a son by each of his two wives. Should any
larger share be given to the son of the elder wife?
^.— No.
DharwdT, 1846.
Authority. — * Mit., Vyav., f. 48, p. 1, 1. 8 :
"It is expressly declared, ' As the duty of an appointment (to raise up seed
to another), and as the slaying of a cow for a victim, are disused, so is partition
(h) Baldeo Das v. Sham Lall, I. L. R. 1 All., at pp. 78, 79.
(t) Stokes's H. L. B. 380.
ik) Ibid. 376.
(l) M. S. R. for 1860, p. 227.
(m) Stokes's H. L. B. 72.
(n) Stokes's H. L. B. 392.
(o) Mit., Chap. I., sec. 5, pi. 10 (Stokes's H. L. B. 393) compared with
sec. 2, pi. 1, 13, 14 (Stokes's H. L. B. 377, 380), and the Smriti Chandrika,
Chap. II., sec. 1, pi. 14, 20, compared with Chap. VIII., pi. 19, 25, 26; Viram.
Tr., pp. 54, 63 ss.
According to .the early Common Law in England the inheritance if held in
socage had to pass according to custom either to the eldest or youngest son
or in equal parts to all the sons, saving the preferential right of the eldest to
the family abode, for which allowance was made to the others. Glanv. VII. 3.
(p) R. A. 47 of 1871; Bom. H. C. P. J. F. for 1872, No. 33.
VYAV., CH. I. S. 2. I SELF-ACQUIRED PROPERTY. 735
with deductions (in favour of elder brothers).' " (Mit., Chap. I., sec. 3,
para 5; Stokes's H. L. B. 382.)
Eemark. — The "partition with deductions " (uddhara) includes the division
between elder and younger sons, and between the sons of elder and younger
wives. Eegarding the latter, see Gautama, Adhyaya 28, paras. 11, 12,
Transl., pp. 300, 301.
Q' 4. — There are two uterine brothers whose father is alive.
When they divided their property, one of them obtained a larger
piece of ground. The other has sued him for it. The father wishes
that the unequal division should remain as it is. Can the brother's
claim to an equal division be allowed?
A. — In the Kali age unequal division is forbidden. One brother
can therefore sue the other. The father has no right to maintain
an unequal division.
Ahmednuggur, Juhj SOth, 1848.
Authorities.— (1) Mit. Vyav., f. 47, p. 1, 1. 7; (2) f. 48, p. 1, 1. 8 (see the
preceding question); (3) f. 52, p. 1, 1. 13; (4) f. 50, p. 1, 1. 7; (5) f. 47, p. 2,
1. 7; (6) f. 51, p. 1, 1. 3; (7*) f. 47, p. 1, 1. 11 :
*' This unequal distribution supposes property by himself acquired. But
if the wealth descended to him from his father, an unequal partition at his
pleasure is not proper; for equal ownership will be declared." (Mit., Chap. I.,
sec. 2, para. 6; Stokes's H. L. B. 378.)
(8*) Mit. Vyav., f. 48, p. 2, 1. 10 :
" The distribution of greater and less shares has been shown (§1). To
forbid in each case an unequal partition made in any other mode than that
which renders the distribution uneven by means of ' deductions,' such as are
directed by the law, the author adds : ' A legal distribution, made by the
father among sons separated with greater or less shares, is pronounced valid.'
" When the distribution of more or less among sons separated by an unequal
partition is legal, or such as ordained by the law, then that division, made
by the father, is completely made, and cannot afterwards be set aside : as is
declared by Manu and the rest. Else it fails, though made by the father."
(Mit., Chap. I., sec. 2, paras. 13 and 14; Stokes's H. L. B. 380.)
Eemarks. — 1. Under the law of the Mitakshara the answer is correct,
whether the land was ancestral (Auth. 7) or self-acquired property (Auth. 8
and 9). The inequality of distribution contemplated by the latter is strictly
limited to the specified deductions that may be made in favour of the eldest
son or the eldest wife's son. See Q. 2, Eemark. According to the principles
laid down by the Courts an unequal division of self- acquired property by a
father is perhaps admissible, but it is opposed to the Commentaries (q), except
as to a reasonable gift to a particular son. See above, pp. 203, 206, 207.
(q) "He may distribute his property, but he must do it according to law,"
Ellis, at 2 Str. H. L. 418. The Smriti Chandrika and Madhaviya, on examina^
tion by Colebrooke, yielded a similar result as to immovables, 2 Str. H. L. 439,
736 HINDU LAW. [BOOK II-
2. The principle adopted by the Smriti Chandrika, of a complete ownership
arising immediately on birth coupled with an exclusive power of administra-
tion in the father during his life is contested by Jimutavahana and Raghunau-
dana, who argue that the right arises only on the father's death. Mitramisra
refutes their contention, Viram. pp. 7-15. At p. 45 he insists on the distinction
between ownership and independence in disposal of property.
Q. 5. — A man has two wives. Each of them has a son. The
husband lived with the elder wife, and to her son ho gave all his
property in disregard of the claim of the younger wife's son. Has
he a right by law to do so ?
A. — A father cannot give the whole of his property to one of
his sons.
Dharwar, May 15th, 1850.
Authorities. — (*1 — 3) see the preceding two cases; (*4) Viramitrodaya^
f. 172, p. 2, 1. 13 :
" If (the father's) desire only were the reason for the allotment of the
shares, then this passage of Katyayana, ' But at a partition, made during his
lifetime, a father shall not give an (undue) preference to one son, nor shall
he disinherit a son without a sufficient reason,' would have no object. 'He
shall not give preference ' means ' he shall not give him, at his pleasure, a
preference other than the share of the eldest and the rest, which have been
declared in the law books.' " (See the passage, on which this is a com-
mentary, quoted in the Digest of Vyavasthas, Chap. II., sec. 8, Q. 14; supra^
p. 103.)
Remarks. — 1. A father is not at liberty by way either of gift or of partition
to give nearly all the ancestral movable property to one son to the exclusion
of another (r).
2. A man cannot give his whole ancestral estate to his son excluding hi&
grandsons by another son deceased (s).
441. So according to the Benares and Mithila Law, according to Sutherland >
ibid. 445; and in Bombay, ibid. 449, and Madras, ibid. 450,
According to the Jewish Law ' the father had no power of disinheriting his
sons; the firstborn received by law two portions, the rest shared equally."
Milman's Hist, of the Jews, vol. I., p. 172.
As to the earlier English Law, see above, pp. 210, 620. The Saxon Law there
noticed agreed with that of the other Teutonic tribes, developed into the German
Landrecht, see Laboulaye, op. cit., 373, 394. The growth of the power of
alienation of immovable property in Europe is the subject of a learned note
by Maynz to his System, § 177.
(r) Bhujangrav et al. v. Malojirav, 5 Bom. H. C. R. 161 A. C. J. ; Lakshman
Dada Naik v. Ramachandra Dada Naik, I. L. R. 1 Bom. 661; Col. Dig.,
Book v., T. 27; 2 Str. H. L. 435.
(s) 2 Macn. H. L. 210.
VYAV., CH. I. S. 2.] SELF-ACQUIRED PROPERTY. 737
3. According to the Benares Law he cannot give all his self-acquired property
to one son or grandson excluding the others. Prof. H. H. "Wilson observes on
this subject, in vol. V. of his Works, at p. 74 : " We cannot admit either, that
the owner has more than a contingent right to make a very unequal distribution
of any description of his property, without satisfactory cause. The onus of
disproving such cause, it is true, rests with the plaintiff, 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 for injustice as shall authorize its revisal. It should never be forgotten
in this investigation, that wills, as we understand them, are foreign to Hindu
Law."
As to the attempted validation of such a distribution on the principle of
factum valet, he says, ibid., p, 71 : "It is therefore 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 Jimutavahana ; ' 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,' Daya-
bhaga, p. 60 (t). This remark refers, however, to the alienation of property, of
which the alienor is undoubted proprietor, as a father, of immovable 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 grand-
father's estate, an unequal distribution made by the father is lawful only in the
instance of his own acquired wealth.' Nothing can be more clear than Jimuta-
vahana's assertion of this doctrine, and the doubt cast upon it by its expounders,
Raghunandana, Sri Krishna, Tarkalankara, and Jagannatha is wholly
gratuitous. In fact, the latter is chiefly to blame for the distinction between
illegal and invalid acts."
Q. 6. — A man has an odd number of sons, and an even number
of sons by his Lagna and Pat- wives respectively. How should his
property be divided among them ? And have both the wives equal
rights and position in the eye of the law ?
A. — The property should be equally divided among the sons of
the Lagna and Pat- wives. Both the wives have equal rights and
position in the eye of the law. The ceremonies of the " Lagna "
and " Pat" are, however, different.
Dharwar, 1858.
Authorities. — (1 — 4). See the three preceding cases.
Remark. — Regarding the position of Pat-wives, see remark to Book I.,
Chap. II., sec. 6 a, Q. 37, p. 39L
(t) Stokes's H. L. B. 207.
H.L. 47
738 HINDU LAW. [BOOK II.
Q. 7. — A shoemaker has four sons, three by his Lagna-
wife and one by his Pat-wife. Two of the Lagna-wife's sons are
minors. The father has divided his property in the proportion of
one-half to the son of the Pat-wife and one-half to the sons of the
Lagna-wife. Is this a legal division?
A. — It is ordained in the law that, in the Kali age (v) a father
should divide his property, real and personal, equally among his
sons. If any one should divide his property against this rule, it is
not legal. A son has the right to prevent his father from making
any irregular transfer of his ancestral property (w). When a man
transfers his own property it is necessary that his sons should
acquiesce in the father's disposal of it. If a property has not been
properly divided in the first instance, it may be re-divided so as
to allot proper shares to the sons.
Ahmednuggur, July 18th, 1848.
Authorities.— (1) Mit. Vyav., f. 48, p. 1, 1. 8 (see Q. 3 of this sec.) ; (2) f. 50,
p. 1, 1. 7 (see Chap. I., sec. 1, Q. 1) ; (3 & 4) see Q. 4 and 5 of this sec.
Eemark. — To give validity to an unequal distribution of the ancestral estate
by a father it must be made during his life and with the assent of his sons,
indicated by their taking possession of their shares (x). The father may
probably have been moved by a tradition in his caste of a law of patnibhag.
See above, p. 399, and below, Chap. II., sec. 1, Q. 6, p. 744.
Q. 8. — A Parades! (y) has two sons, to the younger of whom he
passed a deed of gift, stating that, as his elder son did not support
or obey him, he should not lay claim to the house purchased by
him, which was granted to the younger, and that the elder son
might build a house for his own use on the ground which had
descended to him from his ancestors. The younger son was not,
(v) The Hindus divide their History into four ages ; the present (Kali) is the
last. Certain laws are said to have been practicable in the former ages and
not to be so now.
{w) This answer of the Sastri illustrates what is said above, pp. 559, 564,
568, 687, 594. In another case a Sastri said : " A man who has adopted cannot
alienate immovable property without good reason. With good reason he may ;
especially what has been acquired by himself." MS. 1725.
(x) Muttervengadachellaswamy v. Tumhayaswamy Manigar, M. S. D. A. E.
for 1849, p. 27.
{y) The term means a foreigner, but is usually applied to a Hindu native of
Northern Hindustan.
i
VYAV., CII. I. S. 2. ] SELF-ACQUIRED PROPERTY. 739
however, put in possession of the house, which was occupied by
the elder son. The younger has therefore brought an action
against him, and the question is, whether the elder son can claim
a moiety of the house ?
A. — A special grant from a father to his son, as a mark of his
affection for him, is legal. If the elder son is an ill-behaved man,
he would forfeit his claim to the property of his father, and be
entitled only to a maintenance. If the ground, which is the ances-
tral property of the family, was granted to the elder son with
the consent of the younger, the grantee's title thereto must be
admitted.
Ahmednuggur, September 23rd, 1857.
Authorities.— (1) Viramitrodaya, f. 50, p. 1, 1. 7; (2) f. 50, p. 123, 1. 8;
(3) f. 175. p. 2, 1. 6; (4) Vyav. May., p. 124, 1. 1; (5) p. 161, 1. 8; (6) Mit.
Vyav., f. 61, p. 1, 1. 3; (7*) f. 46, p. 2, 1. 9 :
" But he is subject to the control of his sons and the rest, in regard to the
immovable estate, whether acquired by himself or inherited from his father or
other predecessor : since it is ordained, ' Though immovables or bipeds have been
acquired by a man himself, a gift or sale of them should not be made without
convening all the sons.' " Mit., Chap. I., sec. 1, para. 27 (Stokes's H. L. B.
375).
See also the authorities quoted under the preceding cases.
Eemarks. — 1. The father may make a present, but he has, under the Mitak-
shara, no right to dispose of immovable property, though acquired by himself,
without the consent of all his sons (Auth. 7). If, therefore, the eldest son's
misconduct was not such that he might be called pitridvit, " hater of his father"
(for the definition of the meaning, see the Digest of Vyavasthas, Chap. VI.,
sec. 3 a), and that he could be disinherited on this ground, he will share the
father's property equally with his younger brother.
2. The Bombay High Court, however, allows the father to dispose, at his
pleasure, of all self -acquired property (z). This may be considered the settled
doctrine of the Courts (a), at least as to movable property acquired without the
use of the ancestral estate (b).
3. By the Mithila Law the owner of self-acquired property has complete power
to dispose of it (c). The same rule is implied in jB. Beer Pertah Sahee v.
(z) Gangabai v. Vamanaji, 2 Bom. H. C. K. 304.
(a) Muddun Gopal Thakoor et al. v. Ram Buksh Pandey et al., 6 C. W. E.
71 C. R.
(b) See Book II., pp. 657, 664; Col. Dig., Book V., T. 25, 27.
(c) Vicada Chintamani, p. 76; R. Bishen Perakh Narain Singh v. Bawa
Misser et al., 12 B. L. R. 430 P. C.
Expressions equally strong in other treatises are, however, explained as leaving
the father still subject to the prohibitions against unequal partition, except
according to the rules of deduction, by some recognized as still operative. See
Dayakrama-Sangraha, Chap. VI., paras. 11-14 (Stokes's H. L. B. 510-11);
740 HINDU LAW. [BOOK II.
Rajender Pertab Sahee (d), as operating under the Mitakshara Law with respect
to movable but not as to immovable property (e).
4. As to unequal disposal by will, the law of wills follows the analogy of
the law of gifts (/), " and one leaving male descendants, may [by will] dispose
of self-acquired property, if movable, subject perhaps to the restriction that he
cannot wholly disinherit any one of such descendants. In the Bithoor Case (g),
the testator, having real as well as personal estate, made an unequal distribution
of both amongst his sons, and his legal power to do so was af&rmed by this
Committee " (h).
5. The fact that a sale as to a small proportion was made for immoral pur-
poses will not, even as to ancestral property, vitiate it as against the sons (t).
Sons unborn at the time of a sale have no locus standi afterwards to impeach
it (k).
SECTION 3.— THE MOTHEE'S SHAEE.
Q. 1. — A man had two sons. He proposed that his property
should be divided into three shares, two to be assigned to the
sons, and one to himself. The division was carried into effect to .i
Smriti Chandrika, Chap. II., sec. 1, paras. 19, 20, 24, compared with Narada,
Pt. I., Chap. III., si. 36, 40, and Pt. II., Chap. XIII., si. 14, 15, 16; and as
to the Mithila doctrine itself, see the Vivada Chintamani, p. 309.
(d) 12 M. I. A. 1.
(e) See Mit., Chap. I., sec. 1, paras. 21, 27; Vyav. May., Chap. IV., sec. 1,
para. 5; Viramit., Tr., pp. 55, 68, 74. A son's alienation without his father's
consent was held invalid, Sheo Ruttun Koonwar v. Gour Beharee Bhukut et aL,
7 C. W. K. 449. And a son has a right during the lifetime of his father to set
aside an alienation of ancestral property made without his consent, Aghory Ram
Sarag Singh v. J. Cochrane et al., 5 Beng. L. K. 14 App.
Alienation of property, with assent of undivided without assent of divided
sons, was held valid, Tirhegnee Doohey et al. v. Jutta Shunket et ah, Agra
S. D. A. K. for 1862, p. 71.
So alienation by an uncle without assent of his nephew, Gopall Dutt Pandey
et al. V. Gopallal Misser, Cal. S, D. A. K. for 1859, p. 1314.
(/) Jotindra Mohan Tagore v. Ganendra Mohan Tagore, 9 Beng. L. E., at
p. 398 C. E. (P. C.)
ig) Nana Narain Rao v. Haree Punth Bhao et al., 9 M. I. A. 96.
(h) P. C, at 12 M. I. A., p. 38; see above, pp. 618, 657, 664 ss. ; Lakshmihai
V. Ganpat Moroha, 5 Bom. H. C. E. 135 0. C. J.; Book I., Chap. II., sec. 14
I. A. 4, Q. 9 ; 2 Str. H. L. 407 (as to a widow's will) ; Narottam v. Narsandas
3 Bom. H. C. E. 6 A. C. J. ; Lakshman Dada Naik v, Ramachandra Dada Naik
I. L. E. 1 Bom. 561. In appeal the Privy Council decided that ancestral pro
perty could not be alienated as against a co-sharer (a son) by will, L. E. 7 I. A,
181. See above, p. 275; Bhagvan Dullahh v. Kala Shankar, I. L. E. 1 Bom,
641, for a nuncupative will.
(i) Though their assent is generally requisite. Steele, L. C. 58, 68, 404, 210.
(k) S. A. No. 124, of 1876, Kastur Bhavani v. Appa and Sitaram, Bom.
H. C. P. J. F. for 1876, p. 162. See Book II., Vyav., Chap. I., sec. 1, Q. 8.
WAV., CH. I. S. H. I THE MOTHER'S SHARE. 741
certain extent. The sons, however, disagreed and prevented the
division from being fully enforced. Their mother held with the
elder son and the father with the younger. The elder son has
sued the younger for one-half of the father's property. The
father states that he is at liberty to dispose of his property in any
manner he pleases. Is there any legal objection to the claim?
A. — The father divided his property into three shares, but it
would have been more in accordance with the Sastra had he
divided it into four shares, three to be assigned as above and one
to his wife. The original acquirer is, however, at liberty to dis-
pose of his property in any way he likes. The elder son, there-
fore, has no right to sue the younger for an equal share of the
patrimony.
Ahmednuggur, April 28th, 1847.
Authorities. — (*1) Mit. Vyav., f. 48, p. 2, 1. 10 (see the Digest of Vyavas-
thas, Chap. I., sec. 2, Q. 4) ; (2) Mit. Vyav., f. 47, p. 2, 1. 3 :
"If he make the allotments equal, his wives, to whom no separate property
has been given by the husband or father-in-law, must be rendered partakers
of like portions. (Mit., Chap. I., sec. 2, para. 8; Stokes's H. L. B. 379.)
(3) Mit. Vyav.,f. 60, p. 1,1. 11:
"The first text 'When the father makes a partition,' &c. (sec, II., § I.)
refers to property acquired by the father himself. So does that which ordains
a double share : ' Let the father, making a partition, reserve two shares for
himself.' The dependence of sons, as affirmed in the following passage, ' While
both parents live, the control remains, even though they have arrived at old
age ' (l), must relate to effects acquired by the father and the mother. This
other passage, * They have not power over it (the paternal estate) while their
parents live,' must also be referred to the same subject." (Mit., Chap. I.,
sec. 6, para. 7; Stokes's H. L. B. 392.)
Eemark. — The mother is entitled to a share (Auth. 1), and a division made
by the father, without taking into account her rights, is liable to re-adjustment
(Auth. 2) (m). Under the Hindu Law the father cannot directly divide his
property in any way he likes. Considerable restrictions are placed on his power
even as to self-acquired property, by the Mit., Chap. I., sec. 2 (n). The deci-
sions of the English Courts, however, allow it as to self-acquired property,
relying on a passage (o) which the Sastri also in this answer appears to under-
stand as conferring the power. The eldest son cannot enforce a partition of
his father's self- acquired property (Auth. 3).
(l) This passage is not translated quite correctly. It ought to stand thus :
" While both parents live, he (the son) is dependent, though he may have
arrived at old age." Colebrooke says, " The power of giving is not restrained,
unless, in the case of land, the owner having male issue living, or, in that of the
whole property, leaving the family destitute." 2 Str. H. L. 6, 9, 10.
(m) See § 4 f, and below, Chap. II., sec. 2, Q. 3.
(n) See also Col. Dig., Book V., Chap. I., T. 27.
(o) Mit., Chap. I., sec. 6, para. 10; Stokes's H. L. B. 393.
742 HINDU LAW. [BOOK II.
CHAPTEE II.
PARTITION BETWEEN OTHER COPARCENERS.
SECTION I.— BETWEEN BKOTHEES.
Q. 1. — Would it be lawful for brothers to divide their property,
when the son of a deceased brother is a minor?
A.— Yes.
Tanna, December 21si, 1858.
Authorities.— (1) Viram., f. 170, p. 1, 1. 1; (2) f. 182, p. 1, 1. 1; (3) f. 181,
p. 2, 1. 16 (see Book II., Chap. I., sec. 1, Q. 7) ; (4) Mit. Vyav., f. 46, p. 2, 1. 14.
Ebmarks.— 1. See 2 Str. H. L. 362.
2. In the absence of unfairnesa, infants are bound by a division in which
they were represented by their mother as guardian. But a partition cannot
ordinarily be demanded on their behalf (p).
Q. 2. — Of four brothers, the existence of two cannot be ascer-
tained. Can the remaining two divide their property equally
between them?
A. — They cannot do so. The absent brothers will be entitled
to their shares, whenever they may claim them.
Dharwar, March 31st, 1857.
Authorities.— (1) Mit. Vyav., f. 49, p. 1, 1. 10; (2) Viramit., f. 181, p. 2,
1. 16 (see Book II., Vyav., Chap. I., sec. 1, Q. 7).
Remark. — The absence of the two brothers is no bar to the division of the
estate. Their shares should, however, be set apart and kept intact. See
Nanaji v. Tukaram (q), the decision in which, however, was based on the
plaintiff's having been turned adrift within the statutable period (r).
(p) See Lakshmibai v. Ganpat Moroba et ah, 4 B. H. C. E. 163 0. C. J.;
2 Str. H. L. 310. See also Book II., § 4 c. 3, p. 622.
(g) R. A. No. 46 of 1871, Bom. H. C. P. J. F. for 1871.
(r) See also 2 Str. H. L. 396, 327; Col. Dig., Book V., T. 394; Vyav. May.,
Chap. IV., sec. 4, para. 24; Stokes's H. L. B. 64; Book II., § 4 c. 4, p. 626.
WAV., CH. II. S. ].] BETWEEN BROTHERS. 743
Q. 3. — There are three brothers. One of them is absent in a
distant part of the country. The two are in possession of the
property. One of them claims one-half of it. Can he have so
much ? Can the fact of the absentee being a bachelor or married
have any effect on the division ?
A. — If a brother is not married, the expenses of his marriage
should be defrayed from the common stock (s). The remainder
will be divided; one brother has no right to demand one-half of
the property, merely because another is absent.
Ahmednuggur, July 25th, 1848.
Authority. — See the preceding case, and also the remark on it.
Q. 4. — A deceased man has left two sons. One of them has one
son and the other has two. How should the property be divided
among them?
A. — The father of the two sons should take one-half of the pro-
perty and equally divide it between his two sons. The father
of the one should take the other half.
Dharwar, January 8th, 1852.
AurHORiTY. — *Mit. Vyav., f. 47, p. 2, 1. 14 ;
" Let sons divide equally both the effects and the debts after [the demise of]
their two parents.
[After their two parents]. After the demise of the father and mother :
here the period of the distribution is shown. [The sons.] The persons who
make the distribution are thus indicated. [Equally.] A rule respecting the
mode is declared : in equal shares only should they divide the effects and debts."
Mit., Chap. I., sec. 3, paras. 1 and 2 (Stokes's H. L. B. 381).
Eemark. — If the sons of the second brother demand a division of their father's
ancestral estate, his portion must be divided into three shares, one for the father
and one for each son.
Q. 5. — A man was granted a piece of land as a charity. The
grantee is now dead, and the land is in the possession of one- of his
sons. The other son has instituted a suit against his brother for
the recovery of one-half of the land as his share of the property.
The question is whether land granted as a charity is divisible ?
is) Steele, L. C. 404.
744 HINDU LAW. [BOOK II.
A. — If the land was the property of the father, and if it had not
been ahenated by him, his sons will be entitled to equal shares of
the property.
Surat, August 21st, 1845.
Authority. — *Mit. Vyav., f. 47, p. 2, 1. 14 (see the preceding question).
Eemarks. — The answer is right only under the supposition that the land was
not given for some particular purpose, e.g. the continual performance of an
Agnihotra. If such a condition had been attached to the gift, the eldest son,
who alone would be entitled to perform the ceremonies, would also alone inherit
the land. This rule follows from the maxim, that " whatever has been given
for religious purposes must be used for the stated purposes only " (t). Places
of worship and sacrifice are not divisible. The parties are entitled only to their
turns of worship (v). The Courts have recognized the illegality of a dealing with
religious endowments, which by introducing strangers would make the worship
impracticable or otherwise defeat the purpose of the founder, but this objection
does not generally apply to alienations within the family designated as to
furnish worshippers (w).
Q. 6. — A man died, leaving two widows, who live separately.
The one has one son and the other has two. How shall the pro-
perty of the deceased be apportioned between the two widows on
account of their respective sons?
A. — The property should be divided into as many equal shares
as the number of the sons, and each mother should, in her capa-
city of guardian, take as many of them as the number of her sons.
Khandesh, December IQth, 1858.
Authority. — *Vyav. May., p. 97, 1. 7 :
" Brihaspati gives this apposite example, ' Among brothers, who are equal in
class, but vary in regard to the number [of sons produced by each mother],
(t) Vyav. May., Chap. IV., sec. 7, para. 23; Stokes's H. L. B. 79. Quod
divini juris est id nullius in bonis est. Sec. De Divis. Eer. Di. Li. I. Ti. VIII.
Fr. VI. § 2.
(v) Anund Moyee Chowdhrain et al. v. Boykantnath Roy, 8 C. W. R. 193,
C. E. ; Mitta Kunth v. Neerunjun, 14 Beng. L. E. 166, and see also the case of
Nohkissen Mitter v. Hurrischunder Mitter, East's Notes of Cases, 2 Mor. Dig.,
p. 146.
(w) Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty, I. L. E. 1 Mad. 235;
Mancharam v. Pranshankar , I. L. E. 6 Bom. 298 ; Ganesh Moreshioar v.
Prahhakar Sakharam, Bom. H. C. P. J. F. 1882, p. 181; Anuntha Tirtha
Shariar v. Nagamuthu Amhalagaren, I. L. E. 4 Mad. 200; Sitarambhat v.
Sitaram Ganesh, 6 Bom. H. C. E. 250 A. C. J.
WAV., CH. II. S. I.] BETWEEN BROTHERS. 746
the shares of the heritage are allotted to the males [not to their mothers].' "
(Mayukha, Chap. IV., sec. 4, para. 26; Stokes's H. L. B. 64.)
Kemarks. — 1. Widows have no right to their husband's estate during the
lifetime of their sons, and it is, therefore, impossible that the partition should
be made through them. But if a man leave two or three wives, who have an
equal number of sons who are minors, circumstances may arise which make
a division into two or three shares more advantageous than one into many, and
in that case the Hindu Law is not opposed to a " division according to mothers."
Even if the sons be unequal in number, a proportional allotment might be
made {x). This appears to be the sense in which Nilakantha took the passage
of Brihaspati and Vyasa, quoted by him (y). In any other sense Patnibhaga
would probably not be recognized (z).
2. The widows are, however, entitled to a share each. A claim for partition
must on this account be scrutinized, not granted as of course while the children
are minors, as by delay their portions may improve. A kind of patnibhaga
would arise in the way suggested by Jagannatha (a), by equal division according
to the number of all wives, and then a subdivision of the portions falling to all
born of the same mother, by their number plus one, so as to afford her a share
equal to each of her own sons (b). In this way each son's share would be
larger in proportion as he had more uterine brothers (c). This seems to agree
with the Sastri's opinion and with the Vyav. May. The passages determining
the shares of wives having sons, when their husband distributes the property,
seem to admit of a corresponding construction (d). The rule had reference
originally, it would seem, to sons by mothers of different castes, but this cause
of difference no longer operates (e).
In the case (a Bombay case) at 2 Str. H. L. 404, there would seem to have
been a partition, whereby one of two widows was allotted her own share only,
she being the mother of a daughter but not of a son, while the remainder was
(x) According to Ellis, 2 Str. H. L. 176, 355, 357, 425, a true patnibhaga
prevails among ,some classes in Madras, an equal share being allotted to the
family by each wife. Colebrooke approves this where it is supported by custom.
See Col. Dig., Book V., T. 59, 62. But see also T. 63, which prescribes equal
shares for all sons of equal class,
A similar custom in the Panjab is noted; Tupper, Panj. Cust. Law, vol. I.,
pp. 72, 78. The tribes, however, appear to be Mahomedans by faith, though
they follow some Hindu usages.
(y) May., Chap. IV., sec. 4, para. 25; Stokes's H. L. B. 64. See also Col.
Dig., Book v., T. 62, 63.
{z} Moottoovengadachellasawmy v. Toomhayasawmy et al., M. S. D. A. E.
for 1849, p. 27.
(o) Vide Col. Dig., Book V., T. 89.
(b) Mothers take shares according to the shares of their sons, Viram., Tr.,
pp. 79, 80. Vishnu, cited by Varadraja (by Burnell), p. 19; so also Daya-
krama-Sangraha, Chap. VII., p. 2, quoting Brihaspati; Stokes's H. L. B. 613.
(c) See Col. Dig., Book V., T. 89, Comm.
(d) Mit., Chap. I., sec. 2, para. 9; Stokes's H. L. B. 379; Vyav. May.,
Chap. IV., sec. 4, para. 18; ibid. 52.
(e) Col. Dig., Book V., T. 86, Comm.
746 HINDU LAW. [BOOK II.
given to her co-widow and the two sons by her. In an ordinary partition step-
mothers, though sonless, are entitled to equal shares (/).
Q. 7. — A person of the goldsmith caste had two wives, one of
whom has three sons and the other one. How should the ances-
tral property be divided among them?
A. — A larger share being allotted to the eldest, the rest should
be equally divided among the other three.
Sholapore, January 11th, 1846.
Authorities. — (1) Vyav. May., p. 97, 1. 7 (see the preceding question);
(*) Mit. Vyav., f. 48, p. 1, 1. 8 (Digest of Vyavasthas, Chap. I., sec. 2, Q. 3);
(*3) f. 47, p. 2, 1. 14 (Digest of Vyavasthas, Chap. II., sec. 1, Q. 4).
Eemarks. — 1. The eldest does not receive any larger share than the others
(Auth. 2).
2. The estate must be divided into six equal shares, as the mothers receive
shares as well as the sons (Auth. 3). According to some authors quoted by
Jagannatha, the passage of Yajnavalkya relates only to aonless wives (g), but
this does not seem to be the accepted theory, now that unequal partition is
abolished.
Q. 8. — There are three brothers, of whom one is unmarried. A
house belonging to their father is to be divided among them. The
question is, whether it should be equally divided among the three,
or whether the whole or a large part of it should be given to the
unmarried brother? Another question in connection with this
case is, whether an elder son can mortgage his house during the
lifetime of his mother?
A. — If a brother is unmarried, a sum sufficient to defray the
expenses of his marriage should be first set aside from the com-
mon property, and then the rest equally divided among them. If
the property is just sufficient for the expenses of the marriage,
the whole may be set aside for the purpose {h). The house cannot
be mortgaged without the consent of all the brothers having a
(/) Mit., Chap. I. 397, sec. 7, para. 1 (Stokes's H. L. B. 397); Vyav. May.,
Chap. IV., sec. 4, pi. 19 (ibid. 52); Col. Dig., Book V., T. 83, 84, 86, Comm.,
where the string of arguments and distinctions, that Jagannatha at last rejects,
must not be mistaken for his own.
(gf) Col. Dig., Book V., T. 83, 84, Comm.
(h) Steele, L. C.,pp. 57,404.
VYAV., CH.II. S. 1.] BETWEEN BROTHERS. 747
share in it. The consent of the mother is not required. If, how-
ever, some of the brothers are absent, and the money is required
for an urgent necessity of the family, one of them can mortgage
the house (f).
Poona, August 10th, 1851.
Authorities.— (1) Mit. Vyav., f. 69, p. 1, 1. 8; (2) f. 47, p. 2, 1. 10; (3) f. 46,
p. 2, 1. 11; (*) f. 51, p. 1, 1. 7 (see the Digest of Vyavasthas, Chap. II., sec. 2,
Q. 1); (6)f. 46, p. 2,1. 11 :
" If any of the brethren be uninitiated when the father dies, who is competent
to complete their initiation ? The author replies : ' Uninitiated brothers should
be initiated by those for whom the ceremonies have been already completed.'
" By the brethren, who make a partition after the decease of their father,
the uninitiated brothers should be initiated at the charge of the whole estate."
Mit., Chap. I., sec. 7, paras. 3 and 4 (Stokes's H. L. B. 398).
Remarks. — 1. Compare also the rules of Narada Dayavibhaga, Chap. XIII.,
vs. 33 and 34 (k).
2. As to the concurrence of all the coparceners being necessary, see Book IE.,
pp. 660, 664 (l).
Q. 9. — 1. Three daughters of one and one of another brother
were married when the family was undivided. Afterwards, when
they separated, the brother, whose one daughter only was mar-
ried, objected to his brother's taking an equal share of the family
property on the ground of a large expense having been thrown
upon the resources of the family by the marriages of his three
daughters. Is this a proper objection? Should the brother
whose three daughters were married have a smaller share of the
property ?
2. Suppose the case stands as follows : Three daughters of
one brother were married. After this, the other brother became
separate and got his daughter married. When the brothers sub-
sequently came to actually divide the property, the father of one
daughter proposed that the expense which he had incurred on
account of the marriage of his daughter should be paid to him from
the property, and that it should then be equally divided between
them. Is this a just proposal?
(t) See Steele, L. C, pp. 399, 400.
{k) The joint property must provide for the weddings of the unmarried
brothers and sisters amongst Sudras, 2 Str. H. L. 354.
(l) In the Panjab the consent of all the co-sharers is generally essential to a
gift of even less than the donor's share, Panj. Cust. Law, vol. II., p. 167.
748 HINDU LAW. [BOOK II.
A. — 1. The brother whose three daughters were married during
the union of the family is entitled to a half of his father's
property.
2. In the other case, the proposal made by the father of one
daughter is proper.
Sdr. Adalat, June 22nd, 1825.
Authority not quoted.
Eemarks. — 1. The correctness of para. 1 of the Sastri's answer follows from
the fact that the duty of marrying a girl lies with her father.
2. The second part of the answer is based on the maxim that all expenses of
united brothers must be defrayed out of the family estate. For the two brothers,
though one ' became separate,' still were members of a united family, because a
partition of the estate had not taken place (m).
Q. 10. — A lunatic has a son and a wife. Can his brother, who is
not separated from him, claim the share of a certain property, to
which the lunatic is entitled ?
A. — A man who is blind, lame, mad, &c., forfeits his right to a
share of the family property, but a son of such a person, if not
labouring under a similar disqualification, can claim the share
due to his father.
Tanna, February 2Uh, 1853.
Authorities.— (1) Mit., f. 60, p. 1, 1. 13; (2) f. 60, p. 2, 1. 8 :
"But their (the lame, blind, &c., man's sons), whether legitimate, or the
offspring of the wife by a kinsman, are entitled to allotments, if free from
similar defects." (Mit., Chap. II., sec. 10, para. 9; Stokes's H. L. B. 467.)
Remark. — See Book I., "Persons disqualified," &c. In the case of Koer
Sheopershad Narain v. The Collector of Monghyr et al. (n), it is said that an
idiot, though excluded from inheritance, may take by conveyance. The source
of the disabled member's title, therefore, is of importance.
Q. 11. — Is an elder brother entitled to the right side of a house
whether it be of a more or less value, or should he receive a share
which is equal in point of value on whatever side it might be ?
(m) See Col. Dig., Book V., T. 136, 373; and Jagannatha's Commentary,
2 Str. H. L. 394.
(n) 7 C. W. R. 5 C. R.
VYAV.,CH. II. S. 2.] BETWEEN MOTHER AND SON. 749
A. — It is a custom to assign the right side of a house to the
elder brother. It will rest with the Court to decide how far the
custom should be respected.
Ahmednuggur, July 29th, 1848 (o).
Q. 12. — A deceased man has left two sons. They are engaged
in a dispute regarding the division of a house. Their father has
not left any writing as to the side of the house on which each of
his sons should take his share of it. The question is, whether the
share of the elder son should be on tho right side of the house ?
A. — The usage allows the elder son to have his share on the
right side, but in the book called " Santiratnakara," it is stated
that the elder brother should have his residence on the western
side of a house. The western part of the house, therefore, should
be assigned to the elder brother.
Poona, August 22nd, 1853.
i
Q- 13.— There are four shares in a house, three belonging to the
sons and the fourth to their mother. On what side of the house
should the second son have his share ?
A. — There are no provisions in the Sastras on the subject.
Butnagherry, November 2Srd, 1846.
SECTION 2.— THE MOTHEE AND SON.
Q. 1. — If a mother and her son do not wish to live together as
an undivided family, can the mother claim a share?
A. — If the property is ancestral or acquired conjointly by the
mother and her son, it should be equally divided between them.
The mother should support herself from the proceeds of her share,
but cannot dispose of it by gift or sale. On her death her son will
inherit it.
Rutnagherry, October 21th, 1851.
(o) Similar answers were received from Rutnagherry, December, 17th, 1869;
Poona, December 15th, 1859; Tanna, March 9th, 1860.
760 HINDU LAW. [BOOK II.
Authority. — Mit., Vyav., 1. 51, p. 1, 1. 7 :
" Of heirs dividing after the death of the father, let the mother also take
an equal share." (Col., Mit., Chap. I., sec. 7, para. 1; Stokes's H. L. B. 397.)
Remarks. — 1. The text shows only the Tight of the mother to a share, in case
a partition is made, but not her right to demand a partition. The latter right
does not exist, and it would therefore seem that in the case in question, where
there is only one son, she cannot ask for a division (p). So, too, though sons
acquire a right in their mother's property by birth, they cannot exact a partition
of it during her life (q). If a partition should be made the mother takes a share
equal to her son's (r).
2. As to the nature of the mother's estate in the portion allotted to her, see
2 Str. H. L. 294, 383, where Colebrooke shows that, according to the Mitakshara,
there is an absolute assignment of a share, not a mere setting apart of a main-
tenance, though maintenance be the object of the assignment (s). In the case
at 2 Str. H. L. 404, the Sastri's opinion has not been preserved. The English
scholars, consulted by Sir T. Strange, seem not to have been able to make up
their minds as to the law of the Mitakshara on the point submitted to them.
The allotment to the mother, however, is by Mit., Chap. I., sec. 7, pi. 2 ss. (t),
put on the same footing precisely as that assigned to a daughter, in which it has
never in Bombay been contended that a full ownership does not subsist ; and
Chap, n., sec. 1, pi. 31, 32 (tt), use the analogy of the complete ownership
arising to the mother, on a partition, as an argument for the widow's sole
succession, when one son is left to share the property with her (v). In Bengal
an allotment to a mother on partition is regarded as given in lieu of maintenance
and on her death it reverts to the heir of the husband (cc). In Allahabad it is
regarded as her stridhan (w). The Judicial Committee (ww) favour the view
held by the Calcutta High Court.
Q. 2. — Can a son and his mother divide the family property
between themselves?
A. — The Sastra declares that if sons, after the death of their
father, should divide their property, a share of it, equal to that
(p) See also Book II., § 3 a. Eem. 2; and § 4 c. Rem. 5.
iq) Viram. Tr., p. 228.
(r) So, too, does a grandmother. The same rule applies in the case of an
adopted son. See Thukoo Baee v. Ruma Baee Bhide, 2 Borr. R. 488.
(s) See also Col. Dig., Book V., T. 87, Comm.
(t) Stokes's H. L. B. 397.
{it) Stokes's H. L. B. 436.
(v) See Book II., " Rights and Duties arising on Partition," and Book I.,
Vyav., Chap. II., sec. 6 a, Q. 6.
(vv) Somlah Dasee v. Bhoohun, I. L. R. 15 Cal. 291; Damodar v. Senahutty,
I. L. R. 8 Cal. 537.
(w) Chiddo V. Naubat, I. L. R. 24 All. 67 ; Sri Pal v. Suraj Bali, ibid. 82.
(ww) Sheo Shankar v. Debi Sahai, L. R. 30 I. A. 202.
vyAV.,CH. II. 8. 2. I BETWEEN MOTHER AND SON. 761
which is taken by each of the sons, should be allotted to their
mother.
Ahmednuggur, November 29th, 1855.
Authorities.— (1) Mit. Vyav., f. 47, p. 2, 1. 13; (2) f. 26, p. 2, 1. 9; (3) f. 46,
p. 1, 1. 9; (4) f. 46, p. 2, 1. 14; (6) f. 51, p. 1, 1. 7 (see the preceding question);
(6) Mit. Achara, f. 12. p. 1, 1. 4; (7) Vyav. May., p. 176, 1. 8.
Q. 3. — Three sons of a man became separate and received their
shares of the common property. They did not, however, set
apart a share for their mother. Can the deed of division framed
by the sons be considered valid?
A. — The deed of division may be considered valid, but the sons
should be obliged to give a share to their mother.
Rutnagherry , June 12th, 1851.
Authorities.— (1) Mit. Vyav., 1. 47, p. 2, 1. 13; (2) f. 61, p. 1, 1. 7 (see the
first question of this section) ; (3) Vyav. May., p. 90, 1. 2, 3.
Eemark.— See Book II., § 4 e, and also pp. 289, 710, 712.
Q. 4. — In order to recover the amount of a decree passed in his
favour, a man has attached a house of his debtor. The house was
once the property of the debtor's father. The debtor's mother
claims the removal of the attachment from a half of the house.
She alleges that the house was once her husband's property, and
that she therefore has a right to one-half of it. The question is,
whether the widow of the owner of the house has a claim to any
part of the house while her sons are still living? and if so, to
what extent ?
A. — A son after the death of his father acquires a perfect right
to his property, and while sons are alive the widow has no claim
to his property. She cannot, therefore, claim any share of the
house.
Surat, December 19th, 1850.
Authorities.— Vyav. May. Dayabhaga, p. 83, 1. 7 (Stokes's H. L. B. 42);
Vyav. May. Einadana, p. 179, 1. 6 (Stokes's H. L. B. 121).
Remark. — Though the mother cannot claim a partition of the house, still
she has a claim to maintenance out of the family property (x), extending in
(x) See Book 11., sec. 7 a, 1 5.
762 HINDU LAW. [BOOK II.
amount to a son's share (y). It seems necessary, therefore, that her rights
should be protected against the creditors of her son to this extent, just as those
of a separated brother would be. In Ruttunchund v. Gliolamun Khan (z) it
was held that a widow of one of three undivided brothers has no such right to a
share of a house, the joint property of the family, as to prevent an effective sale
by the surviving brothers, and Jivan v. Kasi Ambiadas (a) was decided on the
same principle (6) ; but the Sholapoor Sastri pronounced against the validity of
the sale, which moreover was by one brother of his share in the ancestral family
house to another brother (c). Subject perhaps to the right of widows to
residence, partition of the dwelling may, it seems, be claimed and enforced (d).
SECTION 3.— BETWEEN EEMOTER RELATIONS.
Q. 1. — One of two brothers left the country and died 40 years
ago. His son, who grew up in the house of his maternal uncle,
claims from his paternal uncle a share of his movable property.
A. — He cannot claim a share of whatever his uncle may have
acquired by his own labour, without using the claimant's father's
means for its acquisition.
Poona, October l&th, 1845.
AuTHOKiTY. — *Viramitrodaya, f. 177, p. 1, 1. 6. See Book II., § 3 a, supra,
p. 606.
Q. 2. — A paternal uncle and a nephew, who were united in
interests, agreed to an unequal division of property between
them. Can they do so?
A. — If the nephew has taken a small share of the property from
(y) Stepmothers also have a claim to maintenance against their stepsons,
taking the paternal or ancestral estate, 2 Str. H. L. 315.
(z) N. W. P. Kep. for 1860, p. 447.
(a) 8 Harr. 172.
(h) A widow having sued a mortgagee from her son for a declaration of her
right as against the mortgaged property to maintenance and recoupment of her
daughter's marriage expenses, it was held that she might, under her general
prayer for relief, be awarded the amount to which on these accounts she should
be found entitled, S. Nistarini Dossee v. Mokhun Lall Dutt et al., 17 C. W. E.
432.
(c) See the cases cited in Book I., p. 245.
(d) Hullodhur v. Ramnath, 1 Marsh. 35. The occupation of a house by a
widow is equivalent to notice of her right to residence. Dalsukhram v.
Lalluhhai, Bom. H. C. P. J. 1883, p. 106.
VYAV., CH. II. S. 3.] BETWEEN REMOTER RELATIONS. 753
his uncle and given him a deed of acquittance, he is at hberty to
do so. Ordinarily he is entitled to an equal share with his uncle.
Ahmednuggur, December SOth, 1846.
Authority.— *Viramitrodaya, f. 177, p. 1, 1. 6. See Book II., § 3 a, supra,
pp. 605, 606, 615.
Q. 3. — Two brothers separated, but did not divide their
movable or immovable property. Can the son of one of them
file a suit for a share of the common property ?
A. — Yes, he can. The property, acquired during the time when
the family was united in interest, must be divided into as many
shares as the number of brothers owning it. If one of them is
dead, his share can be claimed by his son and grandson.
Rutnagherry, January 20th, 1846.
Authority.— *Viramitrodaya, f. 177, p. 1, 1. 7. See Book II., § 3 a, supra,
pp. 605, 606.
Eemark. — Cesser of commensality is a strong but not conclusive evidence of
partition (e). A question of limitation or prescription would now in some cases
arise under Keg. V. of 1827, and the successive Limitation Acts down to Act
IX. of 1908 (/). See Book II., Separation.
Q. 4. — A deceased person left seven sons. Of these three are
ahve and four dead. Of those that died, three have left one son
each and the fourth no son. The deceased father's property con-
sists of one house only. How should each of these sons be allowed
to share in the patrimony ? Can the share of the brother who died
without leaving a son be claimed by all the brothers? Can the
sons of the brothers previously deceased claim the share of the
brother who has now died ? If so, how should each be allowed to
share in it?
A. — It appears that the father died leaving seven sons, and
that one of them died and has left no sons. His share should
(e) Musst. Anundee Koonwar v. Khedoo Lai, 14 M. I. A. 412.
(/) According to the Hindu Law, the right to demand a partition of property
solely possessed continues through four generations of persons present, and seven
of absentees, Moro Vishvanath et al. v. Ganesh Vithal et al., 10 Bom, H. C. R.
444; 2 Str. H. L. 396; see Steele, L. C. 219.
H.L. 48
754 HINDU LAW. [BOOK II.
be equally divided by the surviving brothers and the three sons of
the deceased brothers. The house should be considered divided
into six shares, and one share should be assigned to ea<ih member
of the family.
Broach, September 7th, 1848.
Authorities. — (*1) Mit. Vyav., f. 50, p. 1, 1. 7 (see the Digest of Vyavasthas,
Chap. I., sec. 1, Q. 1) ; (*2) Viramitrodaya, f. 177, p. 1, 1. 6 (see Book II., § 3 a).
Kemark. — The son of each of the predeceased brothers succeeds to his father's
share (g).
Q. 5. — Two brothers paid money in equal proportions, and re-
ceived a house in mortgage. They subsequently died, one leaving
a son and the other a grandson. Unequal portions of the house
had, however, passed into their possession, and the question is
whether or not each party has a right to an equal share ?
A. — Each has a right to an equal share, and the heirs of the
mortgagees may divide it eo.
Ahmednuggur, May 8th, 1851,
Authorities. — (1) Viramitrodaya, f. 177, p. 1, 1. 6 (see Book II., § 3 a.
Eem. 1); (2) Vyav. May., p. 89, 1. 2; (8) p. 169, 1. 6; (4) p. 171, 1. 6;
(5) p. 96, 1. 2.
ig) See Gungoo Mull v. Bunseedhur, 1 N. W. P. E. 79 ; Duljeetsing v. Sheo-
munook Sing, 1 Cal. Sel. E. 59; Dehi Parshad et al. v. Thakur Dial et al,
I. L. E. 1 All. 105; Bhimul Doss v. Choonee Loll, I. L. E. 2 Cal. 379, referring
to Katama Natchiar v. The Rajah of Shivagunga, 9 M. I. A., at p. 611.
NATURALLY INDIVISIBLE PROPERTY. 755
CHAPTER III.
MANNER AND LEGALITY OF PARTITION.
SECTION 1.— DISPOSAL OF NATURALLY INDIVISIBLE
PROPERTY.
Q. 1. — Can a village held on Inam tenure be divided?
A. — Any property which, if divided, would not yield equal
profit, may be enjoyed by each of the co-sharers in rotation for a
certain fixed period.
DharwoLT, September 14ith, 1852.
Authority. — Vivadabhangarnava, in the Chapter called Indivisible Property.
Eemarks. — 1. The question is too general to admit of an exact answer. For
it is not clear of what nature the Inam grant was. Usually Inams, which are
merely tax-free property, or which consist in the Government share of the pro-
duce of the land, are divisible either by an actual apportioning of the land
or by a division of the produfie (h).
2. In one case the Sadar Court of the N. W. Provinces ruled that a partition
might be refused where it would be obviously detrimental to the interests of the
sharers resisting it (i) , but this is not supported by the Hindu authorities ; and
when a partition legally claimed is objected to on the ground of inconvenience,
some more convenient method of distribution must be shown by the objector (k).
Partition of a Court-yard, advisedly reserved for common enjoyment, was refused
in Gopala Achyarya v. Keshav Daje (l).
Q. 2. — One of three brothers, who lived as members of an un-
divided family, died. Can his widow sue on behalf of her son, who
(h) See Ruvee Bhudr v. Roopshunkur et al, 2 Borr. 730; Shib Narain Bose
V. Ram Nidhee Bose et al., 9 C. W. E. 87 C. K. ; see Book I., Chap. II., sec. 6 a,
Q. 8, p. 377. Steele, L. C. 215, 218, 229, 230, show how estates held free or for
service are dealt with.
(t) Durbaree Singh et al. v. Saligram et al., N. W. P. Sel. Dec. 1852, p. 271.
(fe) Summun Jha et al. v. Bhooput Jha et al., 18 C. W. E. 498. i
(l) S. A. No. 240 of 1876, Bom. H. C. P. J. F. for 1876, p. 244.
756 HINDU LAW. [book II.
is a minor under her protection, for a share of the family pro-
perty ? and can the idols be divided ?
A. — The woman cannot claim a share of the property, unless it
be shown that her brothers-in-law are likely to defraud her. The
idols may be divided as any other property.
Poond, August 5th, 1852.
Authorities.— (1) Vyav. May., p. 127, 1. 7; (2) Vivadabhangarnava ;
(3) Viramitrodaya, f. 181, p. 2, 1. 16 (see Book II., Chap. I., sec. 1, Q. 7).
Remarks. — 1. The mother can sue for a division, under the conditions stated,
if she is the guardian of her son (m).
2. The custom regarding family " idols " is stated to be as follows :
(a) If there is only one image it is given to the eldest son (n).
(h) If there are several images, the eldest son receives the principal idol,
and the rest are divided (o).
If property has been dedicated to a family idol, the members are entitled to
worship and take the emoluments in rotation (p).
Q. 3. — Two brothers possess a proprietary right to a well and
use the water to irrigate their respective fields by turns. Can the
right of one brother to a half of the well be sold in payment of his
debts?
A. — The well cannot be sold, the debtor having the right only ta
use it in his turn. A well or door, which is the common property
of a family, and which cannot be divided, can only be used by
those who have limited enjoyment of it.
Ahmednuggur, December 19th, 1854.
Authorities.— (1) Vyav. May., p. 125, 1. 5 :
Other things exempt from partition have been enumerated by Manu :
" Clothes, vehicles, ornaments, prepared food, water, women, sacrifices, and
pious acts, as well as the common way, are declared not liable to distribution."
(Borradaile, May., Chap. IV., sec. 7, para. 15 (Stokes's H. L. B. 77.)
(2) Vyav. May., p. 127, 1. 1 :
" Brihaspati : They by whom it is affirmed that clothes and the like are
indivisible have not proved that the collected wealth of opulent men, their
(m) See Book II., p. 622.
in) Comp. Steele, L. C, p. 179.
(o) The eldest sometimes retains all the images, as in the case at Steele, L. C.
p. 222.
(p) See Book II., p. 671.
VYAV., CH. III. S. 1.] NATURALLY INDIVISIBLE PROPERTY. 757
vehicles and ornaments, shall not be divided (q) ; property held in common
(would be) unemployed, for it cannot be given to one (in exclusion of another);
therefore it must be divided by (some mode deduced from) reasoning (r) ; else
it would be useless. By the sale of clothes and ornaments, on the recovery of a
written debt, by compensating the dressed food with (an equal allotment of)
undressed grain ; an (equitable) partition is made. Water drawn from a (single)
well or pool shall be taken by turns ... A bridge and a field shall be shared
(by co-heirs) in due proportion." Borradaile, May., Chap. IV., sec. 7, para. 22
(Stokes's H. L. B. 78).
Remark. — When it is said that the water of a well cannot be divided the
meaning is that it cannot be distributed like land or money. But the ownership
admits of a mental division, to which effect is given by an agreement to use the
(physically) undivided thing in turns, and if the terms of the partition in this
case were that each brother should take the water by turn for the irrigation of
particular fields, each acquired a distinct property transferable along with that
in the fields to be irrigated (as thus only could it be made available), and sale-
able in execution of a decree along with the fields themselves. As to the
needlessness of a partition in specie to constitute separate property, &c., see
pp. 633 ss.
Q. 4. — Certain brothers divided all their property excepting a
well, a privy, and a compound. It appears that no partition can
be made in regard to the former two, but that the latter may be
divided, though not without inconvenience, by building up a wall
in the middle. The question is, whether or not it should be
divided ?
A. — It is not necessary to divide a well, a privy, and a
compound. There are rules which forbid the division of such
property,
Poona, July 18th, 1851.
Authorities. — See the preceding Question and Q. 1; Vyav. May., p. 125, 1. 5;
Stokes's H. L. B. 87.
Remarks. — 1. A compound may be divided under ordinary circumstances. If,
however, in this case, the " inconvenience " arising from its division would be
of such a nature as to diminish or impair the rights of one of the co-heirs,
i.e. prevent his using the compound for its intended purposes, then it must be
used by all in common.
2. This, as all similar cases, must be decided according to the rules of equity.
iq) The translation of the second line ought to run thus :
" They . . . have not considered, that the property of opulent men may
consist of clothes and ornaments and such property."
(r) Yuktya, " by (some mode deduced from) reasoning," may be better
translated, " according to (the rules of) equity."
758 HINDU LAW. [BOOK II.
SECTION 2.— DISPOSAL OF PEOPEETY DISCOVEEED
AFTEE PAETITION.
Q. 1. — A hoard of treasure was discovered in an ancestral house
which was pulled down. The treasure was not divided between
the cousins twice removed. The cousins had become separated
forty years ago, when the house was assigned to one of them as a
part of his share. The hoard was found in this house, and the
question is, whether the other cousin should have a share of it?
A. — Whenever any ancestral property is discovered, it should
be divided. The treasure should therefore be divided.
Poona, July 14:th, 1855.
Authority. — Vyav. May., p. 129, 1. 1 :
" Manu : When any common property whatever is brought to light after
partition has been effected, that is not considered a (fair) partition; it must
even be made again." (Borradaile, May., Chap. IV., sec. 7, para. 26; Stokes's
H. L. B. 79.)
Kemarks. — 1. The answer is right, supposing it can be proved that the
treasure was concealed by an ancestor of the now divided claimants. As to the
disposal of treasure trove in general, see Vyav. May., Chap. VII., para. 10 (s) ;
Yajnavalkya, I. 34, 35. Narada, Pt. II., Chap. VI., paras. 6-8. Buried or
sunk property belongs to the Government, which should allot one-sixth to the
finder. Property found in the road is to be returned to the owner, less one-sixth
for the Government, of which one-fourth should be given to the finder. Omission
to inform is punishable by fine (t).
2. For the present law see the Treasure Trove Act, VI. of 1878.
Q. 2. — There are three brothers. One of them claims a share
of certain immovable property on the ground that it was not
divided along with the rest. The other brothers do not prove that
the property was divided. How should the question be decided?
A. — If the fact of the division be in dispute, the whole of the
property may be redivided. If the fact of the division of a part
of the property is agreed to, the undivided portion only may be
divided.
Rutnaghein-y , March 6th, 1856.
Authorities.— (1) Vyav. May., p. 129, 1. 1; (2) p. 128, I. 2; (3) p. 133, 1. 1.
Eemark. — See the preceding question and Book 11., p. 642. The first
(s) Stokes's H. L. B. 131. See Steele, L. C, p. 60.
(t) Q. 64 MS. Surat, June ISth, 1845.
VYAV.CH.III.S.2.] PARTITION OF PROPERTY AFTER-DISCOVERED. 759
proposition in the Sastri's answer is laid down much too broadly. A mere
dispute will not entitle any separated member to claim a repartition (u).
Q. 3. — Each of the members of a family received his share of
a Vritti {w), which was divided amongst them. The actual extent
of the land, however, was subsequently found to be in excess of
that taken as the basis of the partition. Should the excess be
divided among the sharers?
.4. — Any new property discovered after the partition of the
known property of a family should be divided among the sharers.
Dharwar, February IQth, 1852.
Authorities.— (1) Vyav. May., p. 90, 1. 2; (2) p. 90, 1. 6; (3) p. 128, 1. 2;
(4) p. 129, 1. 1 (see the Digest of Vyavasthas, Chap. III., sec. 2, Q. 1).
I
Q. 4. — A man had three sons. The eldest of them gave a
writing to his father, engaging that he would not commit any
fraud in regard to the money and jewels given by him to his
mother. The property was estimated at Ks. 3,000. The father
is now dead, and the eldest son has run away. Property valued
at 1,200 rupees only has been discovered. The second son is in
league with the eldest. The third son is a minor. Their mother
claims the whole of the property which has been discovered on the
ground that her husband gave it to her. The question is, how^
should the property now discovered and that which may hereafter
be discovered be divided?
.4. — It is illegal for a man to give his whole property to his wife
in disregard of the claims of his sons (x). The property should
therefore be divided into four shares, of which one should be
allotted to the mother and three to the three sons.
Poona, September 10th, 1853 (y).
Authorities.— (1) Mit. Vyav., f. 69, p. 1, 1. 4; (2) f. 61, p. 1, 1. 7.
Eemarks. — 1. If the property had been acquired by the father himself, he
would, according to the ruling of Gangahai v. Vamnaji (z), be at liberty to
(0) See Col. Dig., Book V., Chap. VI., Texts 378.
(w) Land, or hereditary property, or office, which is the means of subsistence
of a family. See above, p. 681. (x) See above, pp. 204, 205.
iy) A similar answer was received from Eutnagherry, October 27th, 1851.
iz) 2 Bom. H. C. E. 304.
760 HINDU LAW. [BOOK II.
dispose of it at his pleasure, and, in this case, the donation to the widow would
be legal, if it could be proved.
2. The Sastri's opinion, that each of the sons is to have a share, even the
eldest, who ran away, is not quite correct. For though, according to the Mitak-
shara and the Viramitrodaya, fraud practised by one of the co-sharers does not
disqualify him from receiving a share (a), still, it would seem that he ought to
be held liable for any ascertained portion of the share which he might have made
awav with. Hence the absconded son ought not to receive a share of the
Es. 1,200, since the Es. 1,800 which he must be supposed to have made away
with amounts to more than his own share.
3. The liability of the fraudulent coparcener to make good any ascertained
portion of fraudulently concealed property is laid down explicitly (b). The rule
extends to fraudulent or unjustifiably extravagant expenditure during the state
of union (c).
4. In regard to the last point, it ought, however, to be borne in mind that a
proportionately large expenditure on the part of one brother ought to be proved
to have been clearly " dishonest." Otherwise it cannot be deducted from his
share. The Viramitrodaya, f. 220, p. 2, 1. 6, says on this point :
" In order to show that (one brother) ought not to say of the (other) ' He has
consumed (too) much, whilst we were undivided,' and that the king ought not
to allow (the others) to take (back) that which may have been consumed (in
excess of his portion by one of them), the same (author Katyayana) says : ' He
shall certainly not cause to be paid back property, which the brothers consumed,
while living in union.' The bearing (of this text is) that enjoyment (of the
common property) in unequal proportions cannot be forbidden, because it is
unavoidable."
The same remark applies to the second son, if it can be proved that he really
participated in the fraud.
The proper division of the recovered Es. 1,200, therefore, seems to be one in
equal shares between the mother and the minor son.
6. In regard to property in excess of the Es. 1,200 that might be discovered
afterwards, such property ought, in the first instance, to be used to make up
the full shares of Es. 750, to which the mother and the minor were originally
entitled. Afterwards only, the rights of the two fraudulent coparceners can be
taken into account. Members of an undivided Hindu family, making partition,
are entitled as a rule not to an account of past transactions, but to a division of
the family property actually existing (d). In Darlatrav v. Narayanrav (e) it is
ruled that the principle applies generally to a managing member. He is not in
the absence of fraud or wanton extravagance to be made answerable for every
item of expenditure, nor on the other hand to receive credit for family debts
paid by him as an addition to his own share on a partition. See " Eights and
Duties arising on Partition."
(a) See pp. 629, 630.
(b) Mit., Chap. I., sec. 9, paras. 1 — 3; Stokes's H. L. B. 404; Mayukha,
Chap. IV., sec. 7, para. 24; Stokes's H. L. B. 79.
(c) See Col. Dig., Book V., Chap. VI., Text 373; Steele, L. C. 60, 217, 223.
(d) Lakshman Dada Naik v. Ramachandra Dada Naik, I. L. E. 1 Bom. 661;
above, p. 698.
(e) E. A. No. 6 of 1875; Bom. H. C. P. J. F. for 1877, p. 175.
VYAV., CH. III. S. 3.] LEGALITY OF PARTITION. 761
6. The several members may, however, enter into agreements with each
other for the expenditure on joint purposes of their separate property (/). Such
expenditure must, of course, be allowed for in a subsequent partition (g).
SECTION 3.— LEGALITY OF PAETITION.
Q. 1. — A father divided his property between his two sons.
They then executed a deed of separation which continued to be
respected for about eight years. Afterwards the father executed
a document in favour of one of his sons in the absence of the
other, modifying the terms of the deed. Has the father authority
to do so?
A. — It appears that certain property was first set apart for the
maintenance of the father and mother, and the rest divided
between the sons. The father cannot, therefore, modify the terms
of the deed of separation without the consent of both his sons.
Poona, September 16th, 1845.
Authorities. — (*1) Manu IX. 47 :
" Once is the partition of an inheritance made; once is a damsel given in
marriage; and once does a man say ' I give ' : these three are, by good men,
done once for all (and invariably)."
"Kulluka's gloss : 'A partition of the wealth belonging to the father and
others, which has been made by brothers according to law, is made once only,
and cannot again be changed.' "
(*2) Viramitrodaya, f. 223, p. 2, 1. 8 :
'* But what has been said by Manu, ' Once is the partition of an inheritance
made,' &c., that (applies to cases) where there is no ground for annulling that
(partition)."
Kemarks. — 1. The answer is right, if the first partition had been made in
accordance with the law, that is, in due proportions, or by mutual assent (h).
2. A fresh partition cannot be claimed when, though the original division was
equal, supervening circumstances have made the shares unequal in value. But
if one of the divided coparceners has lost part of his share, through the wrongful
act of another, he may recover damages (t).
if) See Muttusvani Gaundan et al. v. Subbiramaniya et al., 1 M. H. C. K. 311.
ig) See Steele, L. C. 217, 219.
(h) See the Smriti Chandrika, Chap. XIV., para. 7; Chap. XV., para. 4;
Mootoovengadachellasamy v. Too^nbayasamy et al., M. S. D. A. E. for 1849,
p. 27 ; and Govind Wisvanath v. Mahadajee Narayan, 1 Bom. S. D. A. K. 167.
(t) Rango Mairal v. Chinto Ganesh et al., S, A. No. 297 of 1874; Bom.
H. C. P. J. F. for 1876, p. 74.
762 HINDU LAW. [BOOK II.
Q. 2. — A man possesses some houses and shops. Of these, all
the shops and one house were given by him to his three sons, who
live separate from him. The father has filed a suit for the recovery
of the property in the possession of his sons. The property was
acquired by the father himself. Can he claim it?
A. — No sooner is a son born than he acquires a right to his
father's property (k), but if he wishes to have a share in his
father's property, he cannot have it unless his father is willing
to give it to him (l). If the father is very old or of a bad charac-
ter, his son has a right to insist upon a division of his property,
even though the father is unwilling.
Dharwar, December 15th, 1853.
Authorities. — (1) Vyav. May., p. 91, 1. 2; (2) p. 91, 1. 7; see the preceding
case.
Eemark. — The Sastri's answer is not to the point. If the father had really
made a division, and if the division had been made according to the law^,
i.e. under the observance of the rules detailed above, or, with the consent of all
parties, even against those rules, it stands good. As to the relation of the
passage in the Mitakshara corresponding to that (m) quoted by the Sastri (n)
and sec. 6, paras. 8, 11 (o), reference may be made to Nagalinga Mudali v.
Suhhiramaniya et al. (p), and to the Digest of Vyavasthas, Chap. I., sec. 2,
Q. 2 — 8, supra.
Q. 3. — The common property of two brothers amounted to
Es. 30,000. One of them obtained a Farikhat from the younger
brother by offering him about Es. 7,000 in full payment of his
share. A part of it was paid, but in consequence of the non-pay-
ment of the rest, the younger brother filed a suit against his
brother to oblige him to pay a moiety of the whole property. Is
this in accordance with the Sastras?
A. — When a person thinks himself able to acquire property or
is otherwise unwilling to take his share, it is directed that a small
portion should be given to him at the time of his separation (q).
(k) See above, p. 601.
(l) See above, pp. 608, 611.
(w) Borradaile, Vyav. May., Chap. IV., sec. 4, para. 7; Stokes's H. L. B. 49.
(n) Col., Mit., Chap. I., sec. 2, para. 7; Stokes's H. L. B. 378.
(o) Stokes's H. L. B. 60, 62.
(p) 1 M. H. C. E. 77.
(g) See Steele, L. C. 68, 214
VYAV., CH. III. S. 3.] LEGALITY OF PARTITION. 763
It is also enjoined that the Sirkar should prevent the person
whose claim has been thus compounded from making a further
demand afterwards. The younger brother, therefore, can only
claim what he agreed to receive at the time of writing the Farikhat.
His claim to a moiety is not proper.
Tanna, July 28th, 1849 (?•).
Authorities. — (1) Vyav. May., p. 134, 1. 1 :
" The same author, with reference to one separated by his own wish, and
afterwards disputing, says : If he subsequently dispute a distribution, which was
made with his own consent, he shall be compelled by the king to abide by his
share, or be amerced if he persist in contention." (Borradaile, May., Chap. IV.,
sec. 7, para. 38; Stokes's H. L. B. 83.)
(*2) Mit. Vyav., f. 52, p. 1, 1. 13 :
" Something is here added respecting the residue of a general distribution of
the estate (s).
" Effects which have been withheld by one co-heir from another, and which
are discovered after the separation, let them again divide in equal shares : this
is a settled rule." (Col., Mit., Chap. I., sec. 9, para. 1; Stokes's H. L. B. 404.)
Remark. — The Sastri's answer is not quite to the point. If the younger
brother agreed, knowing or having the means of knowing the facts, to an unequal
division, then it holds good (Auth. 1). If he was induced to consent to it by
fraudulent representations, then he is not bound by his agreement (Auth. 2) (t).
Q. 4. — Four brothers divided their interests. The share of a
certain piece of land which one of them received was attached by
Government. He therefore claims a new share of the land in
possession of his brothers. Can he do so ?
^.— No.
Dharwar, April 11th, 1849.
Authority. — Manu IX. 47 (see Digest of Vyavasthas, Chap. III., sec. 3,
Q. 1).
Remark. — The Sastri's answer is right only on the supposition that no fraud
was committed in making the division, and that the claim for which the land
was attached was not an old unsettled claim against the family estate. For, as
regards the first point, " fraud in Hindu Law vitiates every transaction " (©).
(r) A similar answer was received from Khandesh, February 17th, 1854.
(s) The translation of the first sentence ought to run as follows :
" Now something is declared which is a supplementary (rule to be observed)
at all Partitions."
(t) See also § 4 f, pp. 649 ss.
(tJ) § 4 F, Remark.
764 HINDU LAW. [BOOK II.
As to the second point, if there was an old claim against the family estate which,
on partition, had not been taken into account, and for which the portion of one
brother was afterwards attached, it would seem that the latter would have a
right to claim compensation from the others. For " a partition made according
to the law,'' to which alone the authority quoted by the Sastri refers, pre-
supposes an equal division of the family debts (w). It seems not improbable
that by " attached " is meant " resumed," that is reduced from " Inam " or
rent-free land to " khalsat," " paying revenue," to the entire exclusion of the
former Inamdar if the land was held by an hereditary cultivator. In this case
the same rule would apply.
Q. 5. — Certain brothers wrote a memorandum regarding their
separation. Afterwards they remained together for a year and
then divided their property. The question, therefore, is whether
the separation should be considered to have taken place from the
date of the memorandum or from the date of the actual separa-
tion? And should expense incurred during the year be set to the
account of the family, or should each man's expenses be laid upon
him individually?
A. — The brothers should be considered united in interests so
long as they take their meals together. The expense during the
year should therefore be set to the account of the family. If
any one should have expended any money on his own private
account, it should be charged to him alone. The separation should
be considered to have taken place from the date on which they
actually divided the property and began to perform " Naivedya "
(food-offering to gods) and " Vaisvadeva " (the burnt-offering to
fire) ceremonies separately.
Sadr Adalcut, May 21st, 1833.
Authority. — Vyav. May., p. 89, 1. 8 : " Even when there is a total failure of
common property, a partition may also be made by the mere declaration, ' I am
separate from thee.' A partition may even be a mere mental distinction. This
exposition clearly distinguishes the various qualities of this [term] " (x).
Borradaile, May., Chap. IV., sec. 3, para. 2; Stokes's H. L. B. 47.
Remarks. — 1. The Sastri's view seems to be, that the memorandum has no
value, because it was not carried out.
2. But partition is primarily a mental act. If the brothers therefore agreed
(w) See § 7Bl,p. 718.
(x) The translation of the last lines ought to run thus : " For partition is
merely a particular kind of intention. The declaration ' I am separate from
thee ' indicates this."
VYAV.,CH. III. S. 3.] LEGALITY OF PARTITION. 765
on a partition and drew up a document setting forth the division of their estate,
this act constitutes a partition, and it is unnecessary to carry it out by a physical
distribution of the property. They must be considered divided from the time
at which the writing was signed. If afterwards, a year elapsed before the inten-
tions declared in the writing were carried out, the expenses must be divided in
due proportion, and be paid by each brother out of his share (y). In many of
the older cases separate possession was held essential to constitute a binding
partition {z). At Bombay it was held that a deed of partition must have been
acted on (a). These cases show that the Sastri's view has been extensively
held, but see now Appovier v. Rama Suhha Aiyan et al. {h). A partnership in
receipts and expenditure sometimes follows a dissolution of the status of a united
family. Steele, L. C. 214.
Q. 6. — One brother passed a Farikhat to another, but it was
not carried out for a long time. One of the brothers and hi& son
died. The question is whether the widow of the deceased can get
her husband's share as specified in the Farikhat?
A. — Yes, she can.
Tanna, October 15th, 1858.
Authorities.— (1) Vyav. May., p. 134, 1. 4; (2) p. 136, 1. 4.
Eemarks. — 1. The Sastri's authorities refer only to the right of a widow tO'
inherit her " separated " husband's property.
2. For authorities see the preceding Question and § 4 D, pp. 630 ss. A
suit for partition, however, conveys no right to the coparcener's widow (c),.
and at Madras it has been ruled that even a decree, if not executed, will not have
this effect (d). Compare the Vyavasthas, at p. 175 of the report, with the rule
enunciated in Rany Pudmavati v. B. Doolar Singh et al. (e), and Rewun Persal
V. Musst. Radha Beehy (/).
(y) See § 4 D 1, p. 631.
In England when two tenants in common agreed to a partition and acted on
the agreement, but did not execute a deed, the devisees of one of them were
held answerable for the costs of carrying out the partition under which the devise
to them took effect. In re Tann, L. E. 7 Eq. Ca. 434.
{z) Naggappa Nynair v. Mudundee Swora Nyair, M. S. D. A. K. for 1863^
p. 125 ; Subba Naiken v. Tangaparoomal, ibid, for 1859, p. 11 ; Kuppammal v.
Panchanad aiyan, ibid, for 1859, p. 260.
(a) Gokuldas v. Hurgovindas, 3 S. D. A. E. 236.
(b) 11 M. I. A. 75. See above, p. 685.
(c) Bhuggaji v. Bhaggawoo et al., Sp. App. 691 of 1865.
(d) Govinda Ooodian v. Alamaloo, M. S. D. A. E. for 1855, p. 157; Babaji
Parsharam v. Ramchandra Anant, I. L. E. 4 Bom. 157, and as to a decree
under appeal, Sakharam Mahadev v. Hari Krishna, I. L. E. 6 Bom. 113.
(e) 4 M. I. A. 259.
(/) 4 M. I. A. 137, and see the cases referred to above, and Suraj Bunsee
Koer V. Sheo Prasad, L. E. 6 I. A., at p. 103, and Chidambaram Chettiar v.
Gauri Nachiar, 1. L. E. 2 Mad. 83, C. S., L. E. 6 I. A. 177.
766 HINDU LAW. [BOOK II.
Q. 7. — Three persons drew up a memorandum regarding the
division of their family property. Each received his share of
everything except the Vritti, which was left under the manage-
ment of one person acting on behalf of all the co-sharers. After-
wards when the adopted grandson of a deceased co-sharer was
on the point of death, the sharers framed a memorandum in tripli-
cate, setting forth the division of the Vritti. The original memo-
randum was duly signed, and attested by the sharers, but before
the duplicate and triplicate could be signed, the man on the point
of death expired. Can his widow under such circumstances claim
a share of the Vritti?
A. — If a share of the Vritti has been assigned to the adopted
grandson, his widow, who has no son, can claim it. If a share
has not been assigned to the husband, the widow cannot claim it.
It is for the Court to determine whether the incompleteness of the
duplicate and triplicate of the memorandum of division leads to
the supposition that a partition of the Vritti was not made.
Tanna, January 19t/i, 1859.
Authority not quoted.
Kemarks. — 1. See the preceding Question, and Introd., § 4 D, p. 632; § 4 b,
pp. 645 ss.
2. No doubt is expressed as to the partibility of the Vritti. See above, p. 671.
Q. 8. — There were five brothers who divided their father's
movable property into five shares, each of them taking one. The
immovable property was left for the maintenance of the father,
with an agreement that, after his death, it also should be equally
divided among them. One of the brothers subsequently died ; and
his death was followed by that of his father. The widow of the
former claims one -fifth of the immovable property as the share
of her husband. Is this claim right?
A. — As the family is divided, the widow is entitled to the share
which was assigned to her husband.
Dharwar, December Slst, 1847 (g).
Authorities. — (1) Vyav. May., p. 90, 1. 1; (2) p. 134, 1. 4.
Eemark. — The widow cannot claim any portion of undivided family property
(gf) A similar answer was received from Khandesh, September 26th, 1867.
VYAV., CH. III. S. 4.] PARTIAL DIVISION. 767
(§ 4 B, p. 645), but if there was an agreement amongst the coparceners that the
property should be divided amongst them in definite shares, subject only to the
father's enjoyment for life of the whole, it would appear that the Courts would
regard this as a partition conferring a right of inheritance on the widow (h).
SECTION 4.— PAETIAL DIVISION.
Q. 1. — One of three brothers desires to have a share of his
father's house without insisting on the division of the whole
property. Can he do so?
A. — The Sastra allows sons to take equal shares of their father's
property, but there is nothing to prevent one of them from de-
manding the share of any particular portion of such property.
Dharwar, January 28th, 1848 (i).
Authority.— Mit. Vyav., f. 47, p. 2, 1. 13.
Eemark. — The partial division may take place by consent, but the brother
cannot insist on it (k). The same principle was subsequently af&rmed in
RagvindTapa v. Soobapa (l).
Q. 2. — Certain members of a divided family of the Kunabi
caste lived together again as a family united in interest, and held
their ancestral estate in common. They afterwards separated
leaving some property undivided in possession of one of them.
After some time, the other members claimed a share of the un-
divided property. Can the exclusive enjoyment of the property
by one member of the family be a bar to the claims of the other
members?
A. — If the members of a divided family become united in
interests and again separate themselves from each other, they
are still entitled to a share of the common property (m), even
(h) Rewun Persad v. Musst Radha Beehy, 4 M. I. A. 137. See § 4 d 1,
pp. 631 ss., and Eemark 2 under Q. 6.
(t) A similar answer was received from Sholapoor, September 28th, 1849.
(A;) See Dadjee Deorao v. Wittul Deorao, Bom. Sel. Ca., p. 175. A partial
partition is obviously only an accommodation not strictly consistent with the
principle by which members of a family must be either united or severed in
their sacra, and the estate that accompanies them.
(l) S. A. No. 3948, 27th September, 1868. See also § 4 e, p. 645.
(m) See above, pp. 131, 132; Steele, L. C. 214.
768 HINDU LAW. [BOOK II.
though it may, on their second separation, have remained in
possession of one of them.
Ahmednuggur, July 19th, 1847.
Authorities.— (1) Mit. Vyav., f. 45, p. 1, 1. 5; (2) f. 40, p. 1, 1. 4; (3) f. 49,
p. 1, 1. 10; (4) Vyav. May., p. 143, 1. 2; (5) p. 128, 1. 1; (6) p. 128, 1. 3;
(7) p. 128, 1. 5; (8) Manu, Chap. X., verse 105.
Eemark. — As there are no particular provisions in the law books regarding a
partial division, it is impossible to prove the correctness of the Sastri's view by
any explicit passages. Still it appears to be founded on the reason of the
law (n).
Q. 3. — There are two claimants to a Vatan. One of them
has had the management of it for a long time. Can the one who
has not the management claim a share in the emoluments ?
A. — The descendants of the person who acquired the Vatan
have a right to a share of it. There is nothing in the Sastras which
prevents a descendant from claiming his share because he does
not manage the affairs of the Vatan.
Ahmednuggur , March 1st, 1851.
Authorities.— (1) Viramit., f. 175, p. 2, 1. 6 ; (2) Mit. Vyav., f. 60; p. 1, 1. 7;
(3) Vyav. May., p. 94,1. 3.
Eemark. — See Bom. Act III. of 1874, and the note below (o).
(n) See § 4 b, pp. 645 ss.
(o) The Sastri regards the Vatan (service holding) merely as a private estate
with a certain obligation attached to it as a whole, not affecting the rights of the
coparceners inter se. For the Eegulation law on the subject, see Eeg. XVI. of
1827, section 20, and the cases quoted under it in the Bombay Acts and Eegula-
tions. Different views have been held at different times as to the nature of this
kind of property. The opinion of the Hon. Mountstuart Elphinstone appears,
from some MS. notes collected by one of the Editors, to have been very nearly
that of the Sastri, and the estate is not resumable on a mere discontinuance of
the service, see Jagjivandas Javerdas v. Itndad All, I. L. E. 6 Bom. 211, and
cases there referred to. The late Sadr Court of Bombay at one time held that
the mortgage prior to 1827 of a Vatan was valid, but only for the lifetime
of the Vatandar mortgagor, Baee Rutton v. Mansooram, Bom. S. D, E. E. for
1848, p. 93. By subsequent decisions it was ruled that mortgages prior to the
passing of Eeg. XVI. were not to be subjected to the rule there laid down,
Sukaram Govind et al. v. Shreeneewas Row et al., 2 Bom. S. D. A. E. 26;
Hureehhaee Soonderjee, 2 ibid. 29; Rachapa v. Amingaoda, S. A. No. 307 of
1874, Bom. H. C. P. J. F. for 1875, p. 269 ; Narayan Govind v. Sarjiapa, E. A.
No. 4 of 1874, ibid, for 1875, p. 99, wherein it was held that alienation prior to
VYAV., CH. III. S. 4.] PARTIAL DIVISION. 769
Q. 4. — A woman has brought an action against her brother-in-
law for the recovery of her eon's share of property. She urges
that during tihe hfetime of her son some of the family property
was divided, but that it is for a share of the remainder that she
now sues.
A. — She cannot claim any share, unless on the ground of some
special agreement entered into by the parties when the division
first took place.
Dharwar, March 1st, 1849.
Authority. — Vyav. May., p. 89, 1. 6.
Eemark. — See § 4 e, Eemark. The Sastri, probably, means to isay that the
mother can claim her son's property if an agreement to divide had been made
during his liftime.
I
Q. 5. — A, a man of the Sudra caste, separated himself from
his brother B, but left the family Vatan undivided. A few years
afterwards A died, leaving his widow C pregnant. Should C be
Keg. XVI. of 1827, coupled with long acquiescence, was good. After Sukaram
Govind et al. v. Shreneewas Row et al., quoted above, it was held that a Vatan
was permanently alienable, Sobharam v. SumbJiooram , 3 Bom. S. D. K. 242;
Jesing Bhaee et al. v. Baee Jeetawowoo, 2 ibid. 131, except as regards the
portion set aside under Act XI., sec. 13, of 1843, for the office-holder, Yeshwan-
traw V. Mulharrao, ibid. 244. But in the end the doctrine adopted was that
a sale was invalid even as to the vendor's life-interest, Ramachander Nursew v.
Krishnaji, S. A. No. 2830, decided in 1852.
The Courts will distribute the surplus produce of a Vatan, though it cannot
leave the family, Jewajee v. Shamrow, Morris, Part. II., p. 110; Mulkojee v.
Balojee, Morris, Part. III., p. 111. See now Book I., Vyav., Chap. I., sec. 2,
Q. 5, note (t), p. 326, and the following cases : The Collector of Madura v. Mootoo
Ramalinga, 12 M. I. A. 438; Krishnarav v. Rang Rav et al., 4 Bom. H. C. E.
1 A. C. J.; The Government of Bombay v. Damodhur Parmanandas et al.,
5 ibid. 203 A. C. J. The limitation of a Vatandar's estate by Eeg. XVI. of 1827,
sec. 20, is not extended by Bom. Act III. of 1874, see Jagjivandas Javerdas v.
Imdad Ali, I. L. E. 6 Bom. 211. For the analogous case of Ghatvali estates in
Bengal see Raja Nilmony Sing v. Bakranath Sing, L. E. 9 I. A. 104, and the
cases there referred to.
A Vatan may be compared with a fief under the feudal law to a man and his
heirs which " the ancestor and his heirs equally as a succession of usufructuaries,
each of which, during his life, enjoyed the beneficial, but none of whom
possessed or could lawfully dispose of the direct or absolute dominion of the
property," Co. Lit. 191 a, Butler's note, which absolute dominion, however,
as opposed to the dominium utile, belonged in England only to the Sovereign,
Bl. Com., vol. II., Chap. IV.
H.L. 49
770 HINDU LAW. [book II.
considered as the heir of A from the date of A's death until her
delivery ? And is she during this period competent to recover from
her brother-in-law B her husband A's share of the Vatan? If C
be delivered of a son, will C and her son be entitled to separate
shares of the Vatan?
A. — On the death of a man who has separated himself from his
family, his son or adopted son is his heir, and is entitled to inherit
his property. If he leave no son, his widow, daughter, and other
relatives, in the order of precedence laid down in the Sastras,
inherit his property. If a brother who has not separated from the
family die, leaving a pregnant widow, the division of the family
property should be deferred till she has been delivered. If a
son be bom, though his father is dead, he should be allowed the
share to which his father would have been entitled. Though a
grandson be supported from the proceeds of his grandfather's pro-
perty, his claim to recover a share from his uncle, or his uncle's
son, is in no way prejudiced. If at the time of the division of
the family any property may have been concealed, it should be
divided, whenever it is discovered. In the case stated in the
question, C, while pregnant, is A's heir. If she bring forth a son
he becomes his father's heir, and as such is entitled to recover his
father's share of all the movable and immovable property of the
family. From the date of her son's birth, C is no longer entitled
to claim A's share of the property.
Tanna, June 2Qth, 1848.
Authorities.— (1) Mit. Vyav., f. 55, p. 2, 1. 1; (2) f. 51, p. 1, 1. 1; (3) f. 50,
p. 1, 1. 1; (4) f. 52, p. 1, 1. 13; (5) Vyav. May., p. 96, 1. 3.
Eemark. — See the preceding cases, and § 4 e. Regarding the rule of deferring
a partition until the delivery of a coparcener's pregnant widow, see § 4 b. 1,
p. 609.
VYAV.,CH. IV. S. 1.] EVIDENCE. 771
CHAPTEE IV.
EVIDENCE OF PARTITION.
Q. 1. — Can the separation of a family be held to have taken
place when there is no documentary evidence to prove it?
A. — A Farikhat or written instrument attested by the members
of the family is the necessary proof of separation.
Ahmednuggur, 1845.
Authority. — Vyav. May.^, p. 132, 1. 8 :
" Those, by whom such matters are publicly transacted with their co-heirs,
may be known to be separate even without written evidence." (Borradaile,
Mayukha, Chap. IV., sec. 7, para. 34; Stokes's H. L. B. 82.)
Remark. — A Farikhat is not necessary in order to prove a division (p).
The doctrine enunciated by the Sastri was adopted by the Sadr Court in some
of the older cases, as in Oomedchund v. Gungadhur (q). But in Sukaram v.
Ramdas (r), and Kaseeshet et al. v. Nagshet (s), this rule was abandoned, and
now it is clear that partition may be proved like any other fact (t).
Q. 2. — A man had two wives. The elder has one son, and the
younger has four sons. The man divided his property into five
shares, assigning one to each of his sons. The son of the elder
wife executed a writing to the other four to the effect that he
would never interfere in any matter concerning them, and that
(p) According to the customary law a farikhat or deed of partition is thought
indispensable in a few castes. In others it is not used. But in a vast majority
it is general though its place may be supplied by the testimony of eye-witnesses
of an actual physical distribution of the property. Steele, L. C, p. 402. See
above. Book II., sec. 4 d, p. 631. As to the common form of a deed of partition,
see 2 Str. H. L. 389.
(q) 3 S. D. A. R. 108.
(r) 1 ibid. 22.
(s) 4 ibid. 100.
it) See Col. Dig., Book V., Chap. VI., T. 381, 384 ; Book II., § 4 d 1, p. 631 ;
and Digest of Vyavasthas, Chap. II., sec. 6a, Q. 31, p. 388.
772 HINDU LAW. [BOOK II.
they were at liberty to settle among themselves any questions
respecting their affairs. After this one of the four brothers died
without issue. Subsequently the son of the elder widow, having
received some produce of a field, offered three-fifths to the three
surviving brothers. They assert their right to four-fifths. How
is this question to be decided ?
A. — The three full-brothers of the deceased are his heirs. The
half-brother cannot claim to be his heir. It will rest with the
Court to consider the weight and effect of the writing passed by
the half-brother.
Dharwar, April 2^th, 1854.
Authority. — Vyav. May., p. 134, 1. 4.
Eemark. — The facts of the case seem to be these : The father of the five
brothers had effected a division, which, in part at least, was a so-called
" phalavibhaga " or division of produce. The eldest brother, who appears to
have been the manager of the estate, left undivided in specie, had given to his
younger brothers a document confirming the division. Afterwards, on the death
of one of the younger brothers, he seems to have disputed the division, and
appropriated that share of the produce of the undivided property which would
have gone to the deceased half-brother. Under these circumstances the division
would be proved by the document and by the receipt of separate shares by the
brothers. As the brothers were divided, the full brothers inherit before the half-
brother, however the case might have been had there been no division. See
Book I., " Coparceners," p. 70.
If the brothers are to be considered as reunited, still the share of the one
deceased would descend to his brother of the full blood. In no case could the
eldest be entitled to two-fifths without a special agreement. See above, pp. 131,
698 88. ; Steele, L. C. 56.
Q. 3. — Two uterine brothers prepare and take their meals
separately. Is this practice a sufficient evidence of the separation?
A. — When two brothers perform the sraddha of their father
separately, and when they have separate trade and separate
means of maintenance, they may be considered separated, and in
this case no documentary evidence is necessary {v). A verbal
declaration of separation is also sufficient evidence in case the
brothers have no property which they can divide .
Surat, Septemher 4:th, 1845.
(v) See 2 Str. H. L. 346; Steele, L. C. 56, 213.
VYAV.,CH.IV. S. 1.] EVIDENCE. 773
Authority,— * Vyav. May., p. 133, 1. 2 :
" Narada declares also other signs of partition : Separated, but not unseparated,
brethren, may reciprocally bear testimony, become sureties, bestow gifts, and
accept presents. Gift and acceptance, cattle and grain, houses, land, and
attendants, must be considered as distinct among separated brethren, as also the
rules of gift, income, and expenditure. Those, by whom such matters are
publicly transacted with their co-heirs, may be known to be separate even
without written evidence." (Borradaile, May., Chap. IV., sec. 7, para. 34;
Stokes's H. L. B. 82.)
Eemark.— See also § 4 d 2, p. 636.
Q. 4. — What are the signs of the separation of a father and a
son? A father and a son of his younger wife live in one and the
same house. The son of the elder wife has been living in a
separate house for about twenty years. The property of the
father has not been divided, nor has the elder wife's son received
any share. He was in the habit of performing the sacrifice called
" Vaisvadeva " (w) on his own account. Should he be considered
a separated member of the family ? and can any man whose food is
cooked separately perform the ceremony, or is it a sign of separa-
tion? Since the death of the father the elder son has joined the
family, and assuming the guardianship of his half-brothers, has
got them married. Can the half-brothers claim a share of the
property acquired by the elder brother during the time he was
away from the family ? Can the elder brother claim a share of the
ancestral property?
A. — Those members of a family who individually perform the
ceremonies of " Vaisvadeva " and '' Kuladharma " (x), and have
signed a Farikhat, may be considered separated. It does not
appear from the Sastras that the elder son of a person is obliged
to perform the Vaisvadeva on his own account, although his
father and half-brother are united in interests, and he himself lives
and cooks his food separately in the same town without receiving
the share of his ancestral property. A person may, however,
perform the ceremony by the permission of his father. The Sastra
authorizes the elder son of a man to take possession of the ances-
tral property, and protect his younger brother and mother. A
(w) This ceremony is performed for the sanctification of food before dinner.
See Steele, L. C. 66.
(x) The ceremonial worship of the tutelary deity. Steele, L. C. loc. cit.
774 HINDU LAW. [BOOK II.
son, who has not made use of his father's means and who has
declared himself separate and has acquired property through his
learning, enterprise, &c., is not under the obligation of allowing
shares of his property to his brothers. They can claim shares of
the ancestral property only.
Ahmednuggur, April ISth, 1847.
Authorities.— (1) Vyav. May., p. 129, 1. 2; (2) p. 129, 1. 4; (3) p. 133, 1. 2;
(4) Mit. Vyav., f. 25, p. 1, 1. 9; (5) Mit. Vyav., f. 48, p. 2, 1. 5 :
" That which had been acquired by the coparcener himself without any
detriment to the goods of his father or mother, or which has been received by
him from a friend or obtained by marriage, shall not appertain to the co-heirs
of brethren." (Col., Mit., Chap. I., sec. 4, para. 2; Stokes's H. L. B. 384.)
Remarks. — 1. For a full enumeration of the signs of a partition, see Introd.
§ 4 D. 2, pp. 636, &c.
2. The Sastri is right in not considering the separate performance of the
" Vaisvadeva " as a certain aign of " partition," though it is enumerated in
the Smritis among these signs. The general custom is in the present day, that
even undivided coparceners, who take their meals separately, perform this
ceremony, at least once every day, each for himself, because it is considered to
purify the food. We subjoin a passage on this point from the Dharmasindhu,
f. 90, p. 2, 11. 3 and 6 (Bombay lith ed.) :
" Rice mixed with clarified butter should be offered in the sacred domestic
fire, or in a common fire. The oblation (at the Vaisvadeva) should be made
in that fire, with which the food is cooked. . . . Bhattojidikshita declares that,
if members of an undivided family prepare their food separately, the Vaisvadeva-
offering may be performed separately (in each household) or not " (y).
Q. 5. — A man had three sons. They used to live and take their
meals separately in a house which was their ancestral property.
They all subsequently died. A son of one of them claims a moiety
of the house from the son of the other. The defendant in this case
takes no objection to the equal division of the house. The widow
of the third brother has joined the plaintiff. The house, which is
the ancestral acquisition of the family, appears to be undivided
property. Should the above-mentioned claimants be allowed
under these circumstances equal or different shares in it?
iy) See the remarks of Prof. Goldstiicker (On the Deficiencies, &c., p. 34 ss.)
which are instructive, though captious. In the passage " amongst members of
a united family, when they cook their food in common, a separate performance
of the Vaisvadeva is not allowed," read, " is not necessary." The passages at
pages 39 and 42 show the correctness of the view presented in the text.
VYAV.,CH.IV. S. 1.]
EVIDENCE.
775
A. — Preparing food and taking meals separately by brothers
is considered by the Sastras to be a mark of separation. Accord-
ing to this rule the three brothers are duly separated. Each of
them has an equal share in the property. The widow of one of
them should be allowed one-third of the house as the share of her
husband.
Surat, November 29th, 1853.
Authority. — Viramit,, Dayabhaga, f. 223, p. 1, 1. 12.
Remarks. — 1. " Preparing food and taking meals separately " is by itself
not a sufficient proof of separation {z).
2. If the ancestral house is undivided, as stated in the question, the widow
must be allowed the use of it and may establish a lien on it for her maintenance,
but can in no case inherit it (a).
Q. 6. — Four uterine brothers lived separately in a house be-
longing to their father. They had neither divided their property
nor passed deeds of separation to each other. They, however,
used to take their meals separately. Afterwards all of them died.
The eldest of them has left a widowed daughter-in-law. She has
a maiden daughter. Two sons of her father-in-law's brother are
alive (b). A creditor of one of them has attached the whole house.
(z) It is an indication when the relatives occupy the same house, 2 Str. H. L.
397. Joint performance of ceremonies implies union of interests, 2 Str. H. L.
393. See Book II., § 4 d. 2 a, p. 636.
(a) See above, pp. 250—1; Book II., § 4 e., p. 645, and pp. 245, 690;
Chap. II., sec. 2, Q. 4, p. 751.
(h) The following genealogical table will be found to illustrate the question :
1
Ramchander.
—
2 8
1 4
5
1
1
1
1
Govind,
son.
Narayan,
son.
Vissoo, son
Wassoo-
deo, son.
6
7
8
1
1
9
1
Harree,
son.
Gunga,
widow.
Mahadeo, son.
Keshow, son ;
his creditor
attached the
property.
10
mee,
hter.
Claims re-
Lux
daug
moval of at-
tachment.
776 HINDU LAW. [BOOK II.
The widowed daughter-in-law has applied for the removal of the
attachment from that portion of the house which constitutes her
husband's share. The question therefore is, whether, according
to the Sastras, and by reason of the four brothers having lived
separately, their property, excepting the house in dispute, should
be considered as divided, and whether the daughter-in-law can
claim a share of it?
A. — Although there is no documentary evidence to show that
the brothers were separate, yet, as their places of living, meals,
and business were separate, they should be considered separated.
Their property, including the house in which they lived, must also
be considered divided. When any one, after the division of the
property in which he has a share, is dead, his widow has a right to
that share.
Surat, December 16th, 1847.
Authorities.— (1) Vyav. May., p. 129, 1. 3; (2) p. 134, 1. 8; (3) Vyav. May.,
p. 129, 1. 2 :
" Yajnavalkya states the modes of decision in case of denial of partition made
by any one : ' When partition is denied, the fact of it may be ascertained by
the evidence of kinsmen, relatives, and witnesses, and by written proof or by
house or field ' (separately possessed)." Borradaile, May., Chap. IV., sec. 7,
para. 27 ; Stokes's H. L. B. 80 (c).
(4) Vyav. May., p. 132, 1. 4 :
" Brihaspati : They, who have their income, expenditure, and wealth distinct,
and have mutual transactions of money-lending and traf&c, are undoubtedly
separate." May., Chap. IV., sec. 7, p. 34; Stokes's H. L. B. 82.
(6) Vyav. May., p. 134, 1. 4 :
" Yajnavalkya thus relates the order of succession to the wealth of one (dying)
separated and not reunited : The wife and the daughters also ; both parents ;
brothers likewise and their sons; gentiles, cognates, a pupil and a fellow-
student; on failure of the first among these, the next in order is indeed heir."
(Borradaile, May., Chap. IV., sec. 8, para. 1; Stokes's BE. L. B. 83.)
Bemark. — The question states nothing about the brothers having carried on
business separately. If the Sastri is right as to this fact, his conclusions also
would stand (d). But the dining separately does not alone prove that the
brothers were divided. If they were undivided the widow is entitled to residence
and maintenance as a charge on the property (e).
When the house of one member of the family was burnt down, and he then
went to live in the same house with another, this was, it was held, to be
(c) Narada, Pt. II., Chap. XIII., si. 36, to the same effect, is quoted by the
Mit., Chap. II., sec. 12, para. 3; Stokes's H. L. B. 467.
(d) Digest of Vyavasthas, Chap. II., § 6a, Q. 31, supra, p. 387; 2 Str. H. L.
387, 397.
(e) Ramchandra Dikshit v. Savitrihai, 4 Bom. H. C. E. 73 A. C. J.
VYAV.,CH. IV. S. 1.] EVIDENCE. 777
referred rather to an exercise of a common right than an acceptance of mere
hospitality, and the prior separate residence was not deemed sufficient proof of
partition between the two (/). But see also § 4 d. 2, p. 636 ss.
Q. 7. — Two brothers have been separate for the last fifteen
years, but they did not pass a formal deed of separation. One of
them has now filed a suit for a share of the land held on Miras
tenure. The other has answered that there is some debt, and that
the property should be divided along with the debt. How should
this be decided?
A. — When a formal deed of separation is passed in the presence
of the kinsmen of the parties concerned, and when each member
is put in possession of his share of houses, lands, and other pro-
perty, the family should be considered as separated. When the
members merely live and take their dinner in separate places in
the same village, they cannot be considered separated. The pro-
perty as well as the debt should therefore be equally divided in
the case referred to in the question.
Ahmednuggur, April 28th, 1856.
Authority. — Vyav. May., p. 129, 1. 2 (see the preceding Question, Auth. 1).
t
Q. 8. — The parties are not able to produce a deed of separation.
It is, however, proved that the parties separated about thirty-five
years ago, and that the deed of separation was then executed.
Can the separation be considered established on other grounds
than the production of the deed?
A. — As the evidence has proved that the separation took place,
and that the parties concerned are in possession of their proper
shares, the separation may be considered established. The pro-
duction of the deed would have only strengthened the proof.
Ahmednuggur, July 2nd, 1847.
Authorities.— (1) Vyav. May., p. 129, 1. 2, see Digest of Vyavasthas,
Chap. IV., Q. 6, Auth. 3; (2) Vyav. May., p. 133, 1. 2 (see ibid. Q. 3).
if) Sheshapa et al v. Igapa et al., E. A. No. 12 of 1873, Bom. H. C. P. J. P.
for 1877, p. 37.
778 HINDU LAW. [BOOK II. "
Kemarks.— See particularly § 4 D. 1, p. 630. In the case of Bulakee Lall
et al. V. Musst. Indurputtee Kowur et al. (g), it is laid down that any act or
declaration showing an unequivocal intention on the part of a shareholder to
hold and enjoy his own share separately, and to renounce all rights upon the
shares of his coparceners, constitutes, when accepted, a complete severance or
partition.
(g) 3 C. W. R. 41 C. E.
BOOK III.
ADOPTION
SECTION I.— SOUECES OF THE LAW.
In their opinions on the cases laid before them the Sastris have
in many instances referred to Adoption " made with the cere-
monies of the Vedas and the Smritis." No precepts as to such
ceremonies are to be found in the Vedic literature, and even in
the Smritis the recognition of the ' ' son by gift ' ' is but a part of
a scheme in which he holds only a comparatively low place
amongst the dozen varieties of substitutionary sons approved by
those writings. They present few or no traces of the developed
and elaborate system which has come down to our generation
enriched and complicated by the inventive suggestions and the
subtle controversies of a long series of lawyers, who were at the
same time scholastics having unbounded confidence in the
methods of a highly technical philosophy (a). The fundamental
notion indeed on which the institution was afterwards reared is
found already in full possession of the Brahmanical mind in the
Vedic period. The manes were to be worshipped ; the family was
to be continued; the householder was to esteem his own being
complete only when his home was furnished with a wife and
son (h). But other means than adoption supply the defects of
nature; some further stages on the way to refinement have still
to be passed before those means become discredited. In the
meantime Adoption is but slightly glanced at. Its fitness for the
(a) For the methods of interpretation and development brought to bear on the
Vedas, see Whitney's Essays, 1st Series, pp. 108 ss.
(b) See Whitney's Essays, 1st Ser.. pp. 50, 69; comp. Manu IX. 45.
780 HINDU LAW. [BOOK III.
needs of a people of the peculiar mental and spiritual character
of the Hindus was not at first perceived. Here, therefore, even
more than in other departments of the law, the Veda has, for the
practical lawyer of the present day, but little importance as a
direct source of the law (c). For a complete history of the
" origins " of the subject the requisite researches have still to be
made, the needful competence has still perhaps to be perfected.
The modern edifice, though bearing everywhere the impress of
the primitive religion and its early modifications, is planned in the
main on ideas of a later time, the growth and variances of which
can be gathered from the existing literature with at least an
approach to confidence (d).
In the long interval between the Veda and the Smritis more
had been done towards systematizing than towards refining the
theory of paternal and filial relations. The importance of main-
taining the family is at the close of this period as strongly recog-
nized as ever; the relations of the living to the dead had, through
long meditation, become more vividly conceived than before.
But the grossness of a barbarous time is not as yet cast off, nor
have the ideas of the people settled down to any final appreciation
of the several recognized modes of replenishing the family.
Gautama, Baudhayana and Vasishtha, Manu and Yajnavalkya ,
Harita, Vishnu and Narada present their several lists. The order
in which they rank the different substitutionaTy sons (e) will be
discussed hereafter. That a substituted son is indispensable,
failing one begotten, the rishis agree, with the exception of Apas-
tamba (/). In him we have an echo perhaps of the then already
ancient objection to the gift or acceptance of a child, an objection
which later commentators found no great difficulty by means of
distinctions and particular applications in explaining away (g).
Another long break in the record follows the period of the
Smritis. That a considerable development of the Hindu mind
and character took place in the interval is manifest from the
works in other departments which have come down to us. Poetry
and philosophy awakened higher moral sensibilities, and the
myths of the earlier times became enveloped in a mist of sacred
(c) See above, p. 50.
(d) Comp. Whitney, op. cit. pp. 62, 70.
(e) See Col. Dig., Book V., Chap. IV.
(/) Transl., p. 131.
(g) Comp. Datt. Mim. Sec. I., 36—47.
S. 1.] SOURCES OF THE LAW. 781
association which softened their repulsive features and prevented
their exercising an injurious influence (h). The uncertain strivings
of the nobler minds towards refinement and delicacy in the rela-
tions of the sexes and the constitution of the family were gradu-
ally in some measure realized by the Brahmanical class, and those
in close communication with them, while neither at any time
quite lost such a hold of the primitive beliefs and conceptions of
duty as served to bind the slow changes of their institutions
together in historical continuity. When we come into clear light
again we find a marked advance in purity of sentiment. Adoption
has in a great measure supplanted the grosser institutions that
once competed with it on more than equal terms. The archaic
formulas are still preserved, but they have been subtly emptied
of their former contents, or have become themes for mere
academic disquisitions, which show the learning of the commenta-
tors and their tenderness for the sacred writings, but stand apart
in a great measure from actual practice and the living law. The
far-fetched explanations of the hard sayings which could not be
set aside (i) show at once the reverential spirit of the commenta-
tors, and their resolution to mould even intractable materials to
the uses and cravings of a society always in movement, and for
centuries in a general movement forward, though not always on
lines which led to the best conceivable results, or which entirely
commend themselves to European sympathies formed under
wholly different influences.
From the time that Adoption comes upon the scene as an
established section of the Hindu jural system, many authors
have dealt with it either as the subject of separate treatises or
along with the other leading topics of the law (k). Besides the
Vyav. May., which is the most frequently quoted, the Bombay
Sastris have referred to the Viramitrodaya, the Samskara Gana-
pati, to the Samskar, and " Datta " Kaustubha, to the Namaya-
sindhu and Dharmasindhu, the Dattaka Darpana and the Dvaita
(h) Comp. for the earlier period Gough's Phil, of the Upanishads, p. 17.
(t) On the reconciliation of discrepancies in the sacred writings and the
application of reason to establish harmony, reference may be made to Bhau
Nanaji v. Sundrabai, 11 Bom. H. C. E., at pp. 265 ss. See, too, the Datt.
Mim., sec. II. 102, where reasoning, it is said, is to be applied to draw out an
obvious inferential sense rather than separate revelations assumed for rules
resting on one and the same principle.
(k) Many of these works are preserved amongst the learned in MS.
782 HINDU LAW. [book III.
Nimaya (l). The doctrines drawn from these authorities are sup-
ported by citations from Manu and other Smritis, as well as from
the Mitakshara, and the Daya Bhaga of Jimuta Vahana. These
last are but infrequent. The Dattaka Mimansa and Dattaka
Chandrika are hardly referred to at all. The opinions enunciated
agree for the most part with the rules laid down in these treatises,
but the remark of Eao Saheb V. N. Mandlik (m) seems to be sub-
stantially correct, that till quite recent years they were but little
known and relied on in Western India {n). It does not follow, how-
ever, that they are not valuable guides to the law. Though the
law of Adoption has, in historical fact, grown up by a process of
gradual adaptation, yet the Hindu commentators do not, any
more than the English Judges, ever set themselves up as makers
of the law. They claim to be expositors, and if one of them
develops principles in a way more consonant to the general
ethical and jural system than another he naturally obtains the
preference (o). The congruousness of his doctrines with the whole
mass of received notions is recognized, and they are received into
the legal consciousness of the people as rules which, from their
fitness, must be followed (p). This fitness implies a due agree-
ment with the traditions that have descended in slowly modified
interpretations from the Vedic era, and forms a proper ground on
Hindu principles for the acceptance into the common law of the
particular phases of doctrine which come thus recommended (q).
This is more especially so if they are set forth with a clearness
and point which makes them readily intelligible. It may seem
that the Dattaka Mimansa and Dattaka Chandrika have not any
very strong claims on these grounds, but excellence is essentially
comparative, and very high authorities have agreed in assigning
to the Dattaka Mimansa the first place amongst the treatises on
Adoption (r). Colebrooke says (s) that " the Dattaka Mimansa is
(l) The one intended is that of Shankara Bhatta, father of Nilkantha, author
of the Mayukha.
(m) Vyav. May., Introd. Ixxii.
(n) That the Eao Saheb is a little too sweeping in his assertion may be seen
by a reference to the opinions of the Poona Sastris in Haebutrao's Case, 2 Borr.
E., at pp. 104, 105.
(o) See Col. Dig., Book II., Chap. IV., T. 15 Com. ; T. 17 ; Book V., T. 57,
424 Comm.
(p) Comp. Mayer, Inst. Jud. Tom. V., p. 7.
(q) See Bhau Nanaji Utpat v. Sundrahai, 11 Bom. H. C. E. 267.
(r) Bhagwan Singh v. Bhagwan Singh, L. E. 26 I. A. 153; S. C, I. L. E.
21 All. 412. (s) 2 Str. H. L. 133.
S. 1.] SOURCES OF THE LAW. 783
no doubt the best treatise on Hindu Adoption." By this Suther-
land was led to translate it : " The Dattaka Mimansa, " he says (t),
" is the most celebrated work extant on the Hindu law of Adop-
tion." Of the Dattaka Chandrika he says, " it is a work of autho-
rity " (v). In assigning it to Devanda Bhatta as its author he may
probably have been mistaken (w), but this does not affect his
judgment as to its popular reception as a guide to the law. Sir
M. Westropp, C.J., says of the Dattaka Mimansa that " though
not quite invariably followed [it] is generally of high authority
in this Presidency " (Bombay) (x). In Bengal the authority of
both works stands still higher. It was said by Mitter, J., that
" The Dattaka Chandrika and the Datteka Mimansa are un-
doubtedly entitled to be considered, and have always been
considered, the highest authorities on the subject of Adoption " (y)
But that their influence is not thus confined is plain from the
description given by Sir W. Macnaghten, cited by the Privy
Council in The Collector of Madura's Case (z) : " Again of the
Dattaka Mimansa of Nanda Pandita, and the Dattaka Chandrika
of Devanda Bhatta, two treatises on the particular subject of
Adoption, Sir William Macnaghten says, that they are respected
all over India ; but that when they differ the doctrine of the latter
is adhered to in Bengal and by the Southern jurists, while the
former is held to be the infallible guide in the Provinces of Mithila
and Benares."
As supplementary to the Mitakshara and the Mayukha, then,
these may fairly be regarded as the principal authorities. The
others referred to, though in some instances of importance, are
not only less accessible, but on the whole less valuable when got
at, and less suited to bringing about a general harmony of doc-
trines and decisions on a subject on which it is specially desirable
that the law should be uniform and widely known. Still usage,
the ultimate test, has in some instances decisively rejected the
doctrines of these two works, as for instance in allowing adoption
by a widow without express authority from her husband (a),
(t) Preface.
(v) Ibid.
(w) See Eao Saheb V. N. Mandlik, loc. cit.
(x) In Gopal N. Safray v. Hanmant G. Safray, I. L. R. 3 Bom., at p. 277.
(y) In Rajendro Narain Lahoree v. Saroda Soondaree Dabee, 15 C. W. R. 548.
(z) 12 M. I. A., at p. 437.
(a) See Haebutrao Mankur's Case, 2 Borr., at pp. 104, 105.
784 HINDU LAW. [BOOK III.
while Nanda Pandita insists that Vasishtha's text requiring the
husband's assent prevents any adoption at all after his death.
The Samskara Kaustubha (b) says that the assent of kinsmen
cannot properly be withheld, and therefore the widow, who is
competent and bound to perform this service for her husband,
may act without their concurrence. The Sastris in Thukoo Baee
Bhide v. Rama Baee Bhide (c) deduced a like competence from
the injunction of the Mitakshara, " a woman must be restrained
only from unnecessary or useless acts," and declared that the
widow could adopt even against the wishes of her husband's kins-
men. In a previous case {d) the Sastris had quoted the Mayukha
to prove that the widow might indeed adopt without an express
authority from her husband, but after " obtaining the sanction
of the kinsmen and informing the ruling authorities." This they
said " corresponds with the custom of the country." Yet should
the widow have actually adopted a son with due ceremonies, such
an adoption conformable to the Vedas could not " be set aside
should the person opposing it be ever so near of kin. " The Courts,
as will be seen, have steered a middle course amongst the con-
flicting authorities. That they should have had to do so implies
that none can be received as absolutely supreme.
In the present day it does not seem likely that the fountain-
heads of the law will be much drawn on for new principles in the
Law of Adoption. They are, indeed, too meagre to afford such
principles save through an elaborate process of constructive infer-
ence. To this they have been subjected by the Hindu writers
for many centuries, and the rules deduced by these writers have
in their turn been tried and sifted by express or tacit reference to
the usages and the peculiarities of Hindu society, until those best
suited to its needs have been ascertained and appropriated. The
Smritis come nearer than the Veda to modern practice, but the
most important authorities are the writers, such as have been
referred to, whose expositions have partly embodied and partly
fashioned the customary law. In the great case of The Collector
of Madura (e) the chief authorities on the law touching a widow's
power to adopt had been collected under the four heads of (1)
Original Sanskrit texts, (2) Kesponses of Sastris, (3) Opinions of
(b) As to the authority of this work, see 2 Borr. E. loc. cit.
(c) 2 Borr. E. 488, 499.
(d) Sree Brijbhookunjee Maharaj v. Sree Gokoolootsaojee Maharaj, 1 Borr. E.
202, 214.
(e) 12 M. I. A. 397, 411.
I
S.I.] SOURCES OF THE LAW. 785
European writers, and (4) Decisions of the Courts. The judg-
ments, both in the first instance and in appeal, proceeded almost
entirely on the third and the fourth classes of authorities, and of
the first the Judicial Committee speak as " a catena of texts,
of which many have been taken from works little known and of
doubtful authority. Their Lordships concur with the Judges of
the High Court in declining to allow any weight to these," while
accepting those recognized by the chief European writers on Hindu
Law as of unquestionable authority in the South of India, where
the case under appeal had arisen.
To the opinions of the Sastris, which the High Court had de-
nounced as having " polluted the administration of Hindu
law " (ee), their Lordships, as already observed (/), attach con-
siderable importance. Those opinions, they say, " which are con-
sistent with [translated works of authority] should be accepted
as evidence that the doctrine which they embody has not become
obsolete, but is still received as part of the customary law of the
country " (g).
In dealing with authorities the analogy of the rules accepted by
kindred schools may greatly strengthen one of two or more incon-
sistent doctrines propounded by rival authors (h). All rely on the
same ancient texts, and the waves of philosophical or moral
influence which have moulded the derived notions in one part of
India have almost of necessity extended their effect to the neigh-
bouring regions, aided in the case of the learned by their posses-
sion of a common language. Through the medium of Sanskrit,
ideas having in themselves a fitness for wide reception have been
capable at aU times of diffusion with something like the same
{ee) In Collector of Madura v. Anandayi, 2 Mad. H. C. K., at p. 223.
(/) Above, p. 2.
ig) The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 M. I. A.,
at p. 438, 439. The Sastris vacillated occasionally in the opinions they delivered.
On points of difl&culty they naturally differed. When one considers the cobweb
structure of the Hindu Law laboriously spun out of a primitive theology by means
of a philosophy having but little respect for mere practice, it was impossible
that there should not be variances of opinion. One view was in itself as reason-
able in many cases as the other. In some instances the Sastris seem to have
gone wholly wrong. The same may be said of jurists and Judges everywhere.
A reading of the Sastris' responses, as wide as that on which the present work
is founded, would convince any unprejudiced student that as Law Ofi&cers of the
Courts these learned men performed their duties, save in very rare instances,
with integrity as well as intelligence.
(h) Ibid.
H.L. 50
786 HINDU LAW. [BOOK III.
striking celerity which obtained through the use of Latin in the
Europe of four and five centuries ago.
The tendency of usage to conform to the received scripture
standards has been noticed in the first part of this work (i). Hindu
theory justifies variances from the normal rule of conduct only by
a supposition of some lost revelation (k) to which they may be
referred, except in cases purposely left to individual discretion (i),
•and the Sastris assert the superiority of the Vedas to mere
custom (m), but when the precept is not decisive they allow
custom to replace it (n). The Charters of the High Courts and the
Kegulations of the Legislature give the next place in authority
after the Statute law to usage, and however in learned specula-
tion the sacred texts may be exalted above mere human practice
there can be no doubt that the Hindu lawyers had arrived sub-
stantially at the same conclusion that the British Government
has defined. The general force of custom as law is repeatedly
asserted by Manu (o), as by Katyayana, Yajnavalkya, and the
other great Eishis (p). The Mitakshara allows that custom has
abolished Manu's rules for specific deductions and unequal shares
in partition (q). The Vyavahara Mayukha declares that the very
practice given by Gautama as an example of one that usage could
not establish, the marriage of a maternal uncle's daughter, is
sanctioned by custom in the Dekhan (r). Macnaghten instances
the Kshetraja as a legal subsidiary son still recognized by the local
law of Orissa (s). Mitramisra, following the Mitakshara, says the
conflicting texts respecting subsidiary sons are to be reconciled by
(i) See above, pp. 9, 402, 403. As to the determination of caste rules, see
sec. II. below.
(k) See 2 Muir's Sanskrit Texts, 165, and references below.
(0 Manu II. 12, 18; Gaut. XI. 20.
(m) 2 Borr. 488; see M. Miiller, H. A. S. Lit., p. 63; Muir's Sanskrit Texts,
vol. III., pp. 179, 181; Col. Dig., Book I., T. 50 Comm. ; Datt. Mim., sec. I.,
paras. 10, 11.
(n) Apastamba, Transl., pp. 15, 55. At p. 47 is a caution against inferring
the former existence of a Vedic passage from a usage which can be accounted
for on merely utilitarian grounds, and a caution against following a usage with
no higher justification.
(o) I. 108, 110; II. 12; IV. 178; VII. 203; VIII. 41, 42.
(p) See the quotations in Rawut Urjun v. Sing Rawut Ghunsiam Sing,
5 M. I. A. 180.
(q) Mit., Chap. I., sec. 3, para. 4.
(r) Vyav. May., Chap. I., sec. 1, para. 13.
(s) Macn. H. L. 102.
S.I. I SOURCES OF THE LAW. 787
referring them to different local customs (t). On this principle the
Sastri, in a case amongst the Bhatele caste, declared that by the
caste custom an adoption could not be allowed while male kins-
men survived to continue the family (v). This agrees with the
answers preserved in Borradaile's collection, and shows that
custom well established is practically supreme. In the particular
instance, which is not a solitary one, it may well be that the
custom embodies a rule against adoption, which once existed in
some sacred writings as Apastamba indicates, but has faded away
in the transcriptions of later centuries.
The importance of custom as a source and standard of the law
is specially great in the case of adoption, because, this being of
comparatively modern development, the Vedic texts, written
without respect to it, admit of manipulation very much according
to the desires of the interpreters. The Smritis even are far from
regarding adoption in the light in which it is now viewed. Thus,
though the Sruti and Smriti are to the pious Hindu above all
reasoning {w), and a rationalist ranks as an atheist (x), yet
Vijnanesvara, who raises the sacred code above all rules of ethics,
has still to admit an adjustment by reference to the general and
particular and other modes of interpretation {y), and custom and
approved usage (z) govern the received construction of the texts
in proportion as these are in themselves indecisive and incapable
of direct application (a). This does not exclude a comparison of
the relative weight of those who pronounce on the customary law.
(t) Viram. Transl., p. 127; Macn. H. L. 188.
(v) MS. 405, Surat, 14th June, 1847.
(w) Manu II. 10 ; comp. ibid. XII. 105.
(a;) Manu II. 11; see Smriti Chandr., Chap. HI., para. 21; Manu. XII. 106.
iy) See Yajn. II. 21; Vyav. May., Chap. I., pi. 112; Col. Dig., Book II.,
;Chap. IV., T. 15 Com. ; Book V., T. 332 Com. ; Comp. Goldstiicker, op. cit. p. 2;
^2 Muir's Sanskrit Texts, 169, 177, 200.
(2) Judicial Committee in Bhya Earn Singh v. Bhaya Ugur Singh, 13 M. I. A.
K).
(o) Vijn. in Roer and Montriou's Yajn. p. 8 ; Manu I. 110 ; IV. 165. He goes
Bo far as to say that precepts are not to be followed in a practice that has become
repulsive to the community, as, for instance, by raising up seed to a man
deceased, and by sacrificing a cow, though these are commended by the Hindu
; scriptures; Mit., Chap. I., sec. III., para. 4. But Devandha Bhatta censures
this looseness of doctrine, and quotes Vasishtha (I. 17) to prove that usage is of
authority only where it is not opposed to the Vedas and Sastras, Smri. Chand.,
Chap. III., p. 21 ss. See Gaut. XI. 20; Baudh. Pr. Adh. 1, Kand. 2, paras. 1-7 ;
iManu ^^:II. 41; VII. 203.
788 HINDU LAW. [book III.
Superior knowledge is to be recognized in some men, of local
usages and of tradition (b) ; they, in fact, are the depositaries of
custom, as it is gradually organized (c), and reproduce it in its
living forms (d). It was a consciousness of this which moved the
Bombay Government of the early part of the present century to
set on foot the enquiries conducted by Steele and Borradaile. The
information gathered by the former on adoption is embodied in his
Law of Caste. The answers collected by the latter have not been
all preserved, but in English and Gujarati a considerable body
remain (e). These were obtained from the representative mem-
bers of the several castes. They were given, it is evident, with
care and consciousness as well as knowledge. They have for other
purposes been frequently referred to in the foregoing pages of
this work, and they must be used as additional and valuable
authorities on the Law of Adoption (/).
It may be necessary to add that a particular custom which is
relied on in any case as derogating from the common law, based
itself on a more general custom, must be clearly proved (g) in this
as in other departments of the law (h). Of a general custom the
Courts take notice without its being proved and without their
attention being called to it. Works like the present may make
the performance of this duty somewhat easier.
For the application of the law as ascertained from its various
sources the Judicial Committee have laid down principles which
must always constitute a great part of the science of the Courts.
Thus in dealing with the Hindu Law " Nothing from any foreign
source should be introduced into it; nor should the Courts inter-
pret the texts by the application to their language of strained
(b) 2 Muir's S. Texts, 173.
(c) See Savigny, System, vol. I., § 12; Goudsm. Pand., Book I., § 15, and
notes.
(d) Comp. Savigny, System, vol. I., §§ 7, 8, 29, 30; Puchta Gewohnheitsrecht,
vol. I., p. 162 ss.
(e) The Gujarati collection by Sir Mangaldas Nathubhai.
(/) As to the force of custom see further Rama Lakshmi v. Shivanantha,
14 M. I. A. 676 ; Surendra Nath Roy v. Hiramani Barmani, 1 Beng. L. E.
26 Pr. Co. ; Lala Joti Lai v. Mussamat Durani Kuar, Beng. L. R. F. B. R. 67 ;
Court of Wards v. Pirthee Singh, 21 C. W. R. 89 C. R. ; Bat Amrit v. Bat
Manek, 12 Bom. H. C. R. 79; Damodhur Ahaji v. Martand Apaji, Bom. H. C.
P. J. 1875, p. 293.
ig) See Col. in 2 Str. H. L. 181.
(h) See Neelkisto Deb Burmono v. Beerchunder Thakoor, 12 M. I. A. 523;
14 M. I. A. 576 ; supra, note (/).
S.II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 789
analogies " (z). As to the weight to be given to decisions, " It is
entirely opposed to the spirit of the Hindu customs to allow the
words of the law to control its long received interpretation as
practically exhibited by rules of descent and rules of property
founded on the decisions of the Courts of the country " {k), and
" a new construction ought not to be placed on a text of Hindu
Law contrary to the current of mctern authority " (i).
I
SECTION II.— NATUEE OF ADOPTION AND ITS PLACE
IN THE HINDU SYSTEM.
Though Adoption now holds among the Hindu jural institutions
a place second in importance only to Marriage, it has won this
place only by slow degrees. A craving for a real, and failing that,
for a fictitious, perpetuation of the family seems to have prevailed
amongst the Hindus from the earliest ages (m). This craving has
sprung less from a desire to satisfy the capacity for affection and
protection — though this has not been absent — than from a sense
of the need of a son to save the Brahman from endless discomfort
in the other world (n). The connexion of putra (= son) with
"put" (= hell) even if not well founded etymologically is
ancient (o), and corresponds to thoughts that have possessed the
Hindu's mind in all ages (p). " Heaven," says the Veda, " awaits
not one destitute of a son " (q), and " a Brahman is born under
three obligations : to the saints for religious duties, to the gods for
(t) Bhya Ram Singh v. Bhaya Ugur Singh, 13 M. I. A. 390.
(k) Kooer Goolab Singh v. Rai Kurum Singh, 14 M. I. A., at p. 196.
(l) Thakoorain Sahibu v. Mohan Lai, 11 M. I. A., at p. 403; Bhagwan Singh
V. Bhagwan Singh, L. E. 26 I. A. 153; Bai Kesserhai v. Morariji, I. L. E.
30 Bom. 431 P.C.
(w) See Ait. Brahm. VII. 3, 9; Vasishtha, Chap. XVII., para. 2; Manu IX.
8, 9, 45, 106; III. 37, 262, 277, IV. 184.
(n) See Apast. Pr. II., Khand. 24, paras. 1, 3, 4; Vasish. XVII. 1—4;
Baudh. Pr. II., Kand. 11, para. 34; Col. Dig., Book V., T. 270.
(o) Col. Dig., Book v., T. 302, 303.
(p) See Vishnu XV. 43 ss.
iq) Col. Dig., Book V., T. 311; Virani. Transl., p. 115; Huradhun Mookurjia
V. Musst. Mookurjia, 4 M. I. A. 414. Yet in the absence of a son the widow
may perform the kriya and sraddhs of her deceased husband. Steele, L. C. 34;
above, p. 87.
790 HINDU LAW. [BOOK III.
sacrifices, to his forefathers for offspring (r). He is absolved who
has a son, performs religious duties, and has offered sacri-
fices " (s). When the Brahman dies a son is indispensable " for
the funeral cake, the libation, and the solemn rites " (t). These
obligations of the son are persistently dwelt on in the sacred books,
and when we see how the sacerdotal class were interested in the
multiplication of ceremonies (») it is easy to understand why the
duty of paternity (w) was one which they never failed to magnify.
The more sacrifices, the more vicarious feasting, and the more
distributions to learned Brahmans (x), the more prominent the
position assigned to them (y).
(r) See Phil, of the Upanishads, p. 264. Comp. Manu III., 70, 81. Thus
it is that " on viewing the fact of his begotten son a father is released from his
debt to his ancestors," 2 Str. H. L. 198.
(s) Datt. Mim., sec. I. 5 ; so Baudh. Pr. II., Kand. 11, para. 33; Kand. 16,
paras. 2 — 7.
(t) Datt. Mim., sec. I. 3; Vishnu XV. 43; Col. Dig., Book IV., Chap. I.,
T. 8. If unworthy, however, the son could be replaced. Col. Dig., Book V.,
T. 263, 264, 278, Comm. " Perpetuated offspring and a heavenly abode are
obtained through a son, a grandson, and a great-grandson," Yajn. quoted Col.
Dig., Book IV., Chap I., T. 36.
(v) See Manu III. 117, 146.
(w) Paternity, not Maternity. " Males only need sons to relieve them from
the debt due to ancestors," Col. Dig., Book V., T. 273 Comm. Nor is adoption
of a daughter warranted by any Smriti ; ibid., T. 334 Comm., though it is
supported by Puranic legends. In Gangabai v. Anant, I. L. E. 13 Bom. 690, a
case under the Vyav. May., it has been held that a Brahman cannot adopt a
daughter conferring on her the right of a real daughter. Manu V. 160, 161, in
recommending continence to a childless widow, does not suggest adoption, but
promises salvation as the reward of austerity. Comp. Steele, L. C. 34.
Nilkantha gathers from Manu IX. 168 that, according to his precept, only a
son, not a daughter, can be given in adoption. Vyav. May., Chap. IV., sec. V.,
para. 6.
(x) See Gaut., Chap. XV. 5—15; Apast. Pr. II., Khand. 16, paras. 3 ss. ;
Manu I. 95; III. 97, 138, 145, 146, 187, 189, 207, 208, 236, 237. Individual
moderation, however, is prescribed; Manu, IV. 186, 190, 195.
iy) Marriage is a samskara that is strongly enjoined, see Col. Dig., Book V.,
T. 252, Comm. ; see Manu II. 67 ; III. 2, 4; Col. Dig., Book IV., Chap. I., T. 17.
The Brahman should marry and light the domestic hearth as soon as possible
after leaving his guru or teacher. A girl, it is prescribed, is to be married at
from six to eight years of age, Steele, L. C. 26, though the validity of the
marriage is not affected if she be under the age of maturity. Col. Dig., Book V.,
T. 338 Comm. The injunctions laid on the parents and on the husband by
Manu show the main purpose of the union (see also Col. Dig., Book V., T. 198,
199; Datt. Mim., sec. I. 6), but in consequence of the legal severance of a girl
from her family of birth in some instances for years before her husband's
I
I
I
S.II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 791
It is strange to modern feelings how much amongst the ancients
sacrifices and religious celebrations were conceived as a bargain {z)
in which, for a consideration of oblations duly offered (a), with
formulas duly uttered (b), protection and prosperity might be
justly claimed (c). There was but little bowing down before the
sublime conception of Almighty benevolence, less dwelling on a
single supreme Creator and controller of events than on partial
deifications of persons and of qualities within the reach of a
limited intelligence (d). In the adoption of a son the Hindu
aimed and still aims at satisfying an exacting group of manes
greedy in the other world for recognition and offerings in this (e).
He looks too for appreciable benefits which he is himself to derive
unfitness can be discovered, and of her having in the meantime become
disqualified by attaining maturity for another marriage, she remains a member
of her guasi-husband's family, to which the marriage rites have transferred her.
See above, p. 418 ; Manu III. 11, 37, 45 ; IX. 4, 26, 77, 81 ; Col. Dig., Book IV.,
Chap. I., T. 15, 16, 18, 19, 62, 64, 65, 66, 84. The sacred writings readily lent
themselves to this, as they generally contemplated the replacement of a husband
where necessary by a substitute. See ex. gr. Col. Dig., Book V., T. 231. In
the case of a marriage ceremony performed between relatives or between persons
of different castes whose marriage is forbidden no conjugal connection is recog-
nized, the woman is put away and her children are illegitimate ; but she is
entitled to maintenance. Steele, L. C. 29, 30. On the other hand, a mere defect
in reciting the formulas (mantras) at the wedding is rectified by reciting them
again correctly, ibid.
(z) See Ihne, Hist, of Eome, Book VI., Chap. XIII.; Soury, Etudes
Historiques, p. 280; Phil, of the Upanishads, p. 262; Manu III. 63, 67;
IV. 155 ss.
(a) Manu III. 279.
(b) See Baudh. Pr. II., Kand. 11, para. 32; Kand. 14, paras. 4, 5, 11, 12;
Manu III. 217, 277 as.; IV. 99, 100; Apast. Pr. II., Khand. 16, paras. 7 as.;
Phil, of the Upanishads, p. 102.
(c) For the purposes sought to be attained by the due utterance of the
" mantras " or spells, and their coercive force over the gods, reference may be
made to Whitney's Essays, 1st Series, p. 20; see Manu IV. 234.
(d) " The innumerable gods of Hinduism are deified ghosts or famous
personages, invested with all sorts of attributes in order to account for the
caprices of nature. This is the state of the vulgar pagan mind; by the more
reflective intelligence the gods are recognized ... as beings capable of making
themselves very troublesome; whom it is, therefore, good to propitiate, like men
in office." Sir A. C. Lyall, Asiatic Studies, p. 51.
(e) Manu, Chap. III. passim; Vasish. XI. 40—44; Gaut. XV. 15 ss. A
higher range is attained in such passages as those quoted by M. Miiller, Lect.
on the Sc. of Keligion, pp. 233, 265; comp. ibid. 153; Tiele, Anc. Religions,
pp. 114, 143. The manes were on particular occasions to be honoured with
animal sacrifices. Manu V. 41 ; comp. v. 36.
792 HINDU LAW. [BOOK III.
from the future ceremonies (/), the fruit of which will reach him
in the realm of shades {g). He shrinks with horror from being
left destitute beyond the pyre to sufier the mysterious anguish
which awaits the man for whom no son can perform the
Sraddhas {h). The stronger and more materialistic may resist
this tendency (?'), in some few active faith is lost in metaphysical
subtleties (k), some are too obtuse to realize the future at which
others shudder; but for the most the pressure of a social opinion
pervaded everywhere with these ideas, moulds their desires (I) and
defines their spiritual outlook and their hopes and fears. In
somehow acquiring a son the Hindu thinks generally that he is
making the best of all possible bargains for himself in this world
and the one to come (m).
Various means for supplying a natural deficiency of male off-
spring were devised, or still adhered to the family in its gradual
consolidation on a permanent type from the looser and grosser
associations that preceded the dawn of civilization. Amongst
these expedients, Adoption, when first admitted, seems to have
been received with but doubtful favour (n). The levirate and the
appointment of a daughter in one or other of the forms of these
if) See Manu IX. 180; Col. Dig., Book V., T. 306 ; Baudh. Pr. II., Kand. 14.
(g) See Manu III. 274, 275. Ajs to the sin of the son who omits to satisfy
his obligations, see Vishnu XXXVII. 29; LXXVI. 2; Phil, of the Upanishads,
p. 264. The enumeration of the right seasons for oblations to the manes in
Yajn. I. 217, may remind one of the famous five reasons for drinking amongst
the Western nations. So too Vishnu, LXXVI— LXX VIII.
(h) Vishnu, XX. 33—37; Col. Dig., Book V., T. 312, 313.
(i) Individual Hindus have no hesitation (see the Sarva-Darsana-Sangraha,
p. 10) in expressing their contempt for the whole system, but they are rare
exceptions. Others think that their duty may be fulfilled and their salvation
secured under the Hindu Law by other means than procuring a lineage. They
rely on such texts as Yajn. I. 40, 50; III. 190, 204, 205; Manu V. 159.
(k) See Phil, of the Upanishads, Chaps. IV., V., p. 263.
(Z) For the ceremonies and the mantras or spells to be recited isee Vishnu,
LXXIII— LXXVI.
(m) See Manu III. 81, 82, 122, 127; Col. Dig., Book V., T. 270.
(w) Apast. Pr. II., Pat. VI., Khand. 13, para. 11, positively forbids the gift
equally with the sale of a child. He does not recognize the substitutionary sons.
He condemns vicarious procreation, loc. cit., para. 7, at the same time indicating
that it was common. Medhatithi, much later, contends that there can be no real
substitute for the son, from whose production, not his replacement, the proposed
spiritual benefit is to be derived. See Datt. Mim., sec. I. 36, and comp. the
alternative rendering of Gaut. IX. 53, quoted under Vasish. XII. 8. This would
forbid leaving the family of birth to join another by adoption.
J
S.II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 793
institutions must for generations and even centuries have been
the approved modes of obtaining a substitutionary son (o). Other
methods, still less commendable, according to modern ideas, must
have had a certain vogue, seeing that they are recognized in the
sacred Smritis (p). The final survival of adoption while the rival
institutions perished is a mark of its greater suitableness to the
moral sensibilities and needs of a society gradually advancing in
refinement, yet clinging always to the traditions of the past. The
field is here still encumbered with the remains of fallen struc-
tures which have engaged a good deal of the attention of the native
authors. They have only a partial and occasional influence on the
law of to-day, but some observations may be necessary in order
to place Adoption in its proper historical relation to the rival, and
no doubt older, institutions, which in the end it has supplanted
and extinguished.
It is possible to trace in the Vedic literature {q) some indications
of the appointment of a daughter to produce a son, not for her
husband, but for her own father (r). This and the levirate (s)
may be regarded as having in the Vedic period almost completely
filled the space now occupied by adoption (t). It is impossible to
suppose that a subject of such importance as adoption, so stirring
to the feelings of the religious, and so calling for ceremonies and
sacred ministrations, should not have been frequently mentioned
if in fact the institution was generally recognized when the
hymns were composed (v). Yet that it was creeping into existence
(o) See Col. Dig., Book V., Chap. IV., sec. III., arts. I. and II.
(p) See ex. gr. the quotations in Col. Dig. loc. cit., sec. IV.
(q) It is necessary to go back so far to find the root of this as of nearly all
existing Hindu institutions. See Whitney, Or. and Ling. Studies, 1st Series,
pp. 101 ss.
(r) Miiller, Kigveda, vol. I., p. 232; Transl. Tag. Lect. 1880, p. 249.
(s) A passage quoted in Muir's Sansk. Texts, vol. V., p. 459, makes it plain
that the young widow of the Vedic period sought the society of her brother-in-law
just as amongst the Jews. (See above, p. 397.) The frequent references to the
same custom in the Smritis have already been noticed. (See above, p. 394 ss.)
it) Above, p. 394; Rig. Veda, X. 40, referred to above, p. 276. The Vedic
passage apparently insisting on a really paternal relation as the condition of
celebrating certain sacrifices has to be explained away in the Datt. Mim.,
sec. I. 44.
(v) The myth of Sunahsepa's giving himself to Visvamitra, who already had a
hundred sons, is referred to in the Rig Veda, but it is evidently not recognized
as a part of the social system. Nor is it connected by any chain of natural
development or deduction with adoption. A mere casual and partial similarity
does not under such circumstances indicate derivation. Sunahsepa, it appears,
794 HINDU LAW. [BOOK III.
may be inferred even from the exhortation against it as incapable
of supplying a deficiency of begotten offspring {w).
The levirate, as a means of raising up issue, became in the
course of time disreputable amongst the Brahmans {x) or at any
rate somewhat discredited. It is by Manu made one of the
reproaches of king Vena, who appears to have strongly resisted
the pretensions of the Brahmans, that he made this pra;ctice " fit
only for cattle " a law for men (y). Yet a few verses later the
institution in a modified form is fully recognized {z), and a sonle?^s
woman it is admitted might be legally authorized to take a substi-
tute for her husband (a). Thus the ruder arrangements of a half-
must have already uttered mantras and must therefore have been initiated.
Hence it is said arises an authority for the adoption of a son whose samkaras
have been completed in another family. When history admits the legend, logic
may accept the inference.
In the comparatively late Yajur Veda there is an instance in the story of Atri
of a man's giving away all his children and in place of them adopting a religious
ceremony. Such myths sprang merely from the unchecked play of invention.
Taken seriously as examples for imitation they would warrant what the law
strongly condemns, needless adoption and parting with all sons. The story of
Manu's appointment of a daughter though he had sons. Col. Dig., Book V.,
T. 216, is not by any one held to validate a similar appointment now, nor is
Pandu's liberal acceptance of his wife's children a pattern for a less meritorious
generation. See Col. Dig., Book V., T. 301 Comm., T. 273 Comm. A further
pitch of imaginative licence is reached in the story of Daksha's appointing his
fifty daughters and giving twenty-seven to one husband. See Col. Dig.,
Book v., T. 222.
(w) See the passages cited by Zimmer, Altindisches Leben, p. 318; and comp.
Rig. Ved. I. 124, 125.
(x) Above, pp. 395—6; Manu V. 161, 162.
iy) See Muir, Sansk. Texts, vol. I., p. 297; Manu IX. 66.
(z) Manu IX. 69, 70; comp. Gaut. Ad. 28, para. 19; Vasish., Chap. XVII.,
para. 11; Vishnu, Chap. XV., para. 3.
(o) Manu IX. 147, 159, 161; Baudh. Pr. II., Kand. 2, para. 12. Not only
oould a wife be borrowed, but a Brahman might be hired, as well as a relative
called in, to supply a suspected defect on the part of the husband desirous of
offspring. See the passage quoted Datt. Min., § V. 16. Various bargains could
be made between the father and the quasi-ia.ther ; see the texts, Col. Dig.,
Book v., T. 213, 214, 217, 235, 238, 240, 241, 244, 252.
In the passage quoted Datt. Chand., sec. III. 9, it is provided that a son
begotten on the widow by a brother of the deceased husband is to be regarded
as a son of the latter only. He is to take precedence as heir over sons begotten
by the deceased on other men's wives. As to these see Gautama, quoted Col.
Dig., Book v., T. 265. The Brahma Purana, quoted ibid. T. 217, would,
taken without the gloss, reverse the order of succession.
S.II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 795
savage time (b) stand recorded side by side with higher concep-
tions still struggling for admittance. The higher cause prevailed,
but its supremacy is even now not completely established amongst
the primitive tribes (c). Amongst the higher castes the older
notions are virtually obsolete, yet in the law books we find rules
still based on them with more or less of artificiality (d). These
instances of adjustment must be taken rather perhaps as proofs
of the strong conservative tendency of learned men building on
sacred foundations, than as the real grounds of customs which
had an obvious recommendation in their fitness; but they give a
peculiar turn to the reasonings on some points of the chief authori-
ties which has had a palpable influence on the development of the
practical law.
A.S an example of this, reference may be made to the rule that
the place as heir of a member of a family disqualified by some
personal defect may be taken by a son begotten either by the man
himself or by a kinsman on his behalf (e). The specific mention
of these substitutes is held by the Mitakshara (/) to exclude a son
adopted by a man himself disqualified for inheritance, and the
Smriti has probably come down from a time when the family
might refuse to accept any one not actually bom in it imder
arrangements which provided that a child thus born shared the
common ancestral blood {g).
(b) Polygamy, though the indications of it in the Vedic hymns are not
frequent, is yet referred to, see Muir's Sansk. Texts, vol. V., p. 458; Zimmer,
Altin, Leb. 324. The seclusion of women seems from other Vedic passages not
to have been practised. It is probable that under such circumstances a con-
siderable licence of manners prevailed, and of this there are several indications.
Wilson, Eig Veda, 2, xvii. ; Zimm. op cit. 332, 334.
(c) See above, p. 357.
(d) Doctor Burnell, Introd. to the Madhaviya, says : " Indian jurists never
attempted to record such merely human details " as those of local custom, but the
perusal of such a work as the Vyav. Mayukha can leave no doubt that the com-
mentators were no more independent than other human beings of the moral
medium in which they lived. An ingenious and laboured interpretation not
infrequently leads merely to a corroboration of what custom had already made
law.
(e) Mit., Chap. II., sec. 10, para. 9.
(/) Ibid., para. 11.
(g) There was no such thing as a repeal of a Smriti law. See above,
pp. 46 — 50. As the sacred writings were inspired all had authority, and when
they clashed had in some way to be reconciled by interpretation (see Manu II.
12 — 15). Here the precise rule prescribed for the particular case is declared
by Vijnanesvara to override the more general law of replenishment of the family,
796 HINDU LAW. [BOOK III.
Another instance is the reference by some authors of the right
of a widow to adopt a son without express authorization to the
duty in former ages of raising up seed to her deceased husband by
an appointed relative (h). And as this function was assigned to
the brother or other near kinsman, so he, it was said, was the
person to concur in an adoption by the widow, without which such
an adoption could not be valid (i). The Privy Council refused to
admit the analogy as affording more than " an explanatory argu-
ment for an actual practice " (k), and placed the necessity for
kinsmen's assent upon the ground of "the presumed incapacity
of women for independence," but the logical method pursued by
the Indian writers referred to and adopted by the High Court of
Madras in this case is extensively applied in the Hindu Law (l).
and the rule has been preserved, though its effect now is to prevent disqualified
persons from supplying their own places at all, comp. pp. 48 — 50, above; The
Collector of Madura v. Muttu Ramalinga Sathupathy, 12 M. ,1. A., at p. 435,
and S. C. 2 M. H. C. E., at p. 231. It is a canon of construction that when
there is a general rule a special one of possible narrower scope is to be interpreted
so as not to deprive the wider rule of its general operation. See Datt. Chand.,
sec. v., 27. This is equally a rule of the English Law; see Co. Litt. 299a, and
Ebbs v. Boulnois, L. E. 10 Ch. A., at p. 484. The apparent contradiction is
got rid of by a limitation of the one or the other rule as to persons, time, or
place of operation.
{h) See Collector of Madura v. Srimatee Muttu Ramalinga Sathupathy,
2 M. H. C. E., at pp. 213, 221, 222, 224, 226, 230.
(t) Ibid.
(k) S. C. 12 M. I. A., at p. 441. The Samskara Kaustubha argues that a
woman's necessary dependence does not disqualify her for adopting, but it does
not decisively dispense with the assent of kinsmen, though these may incur
damnation by wrongly withholding it. The construction given by the Sastris
(above, p. 783) is subject to this qualification.
(l) The principle of development on which, as a formulated scheme, the whole
law of adoption rests, is strongly insisted on at 2 M. H .C. E. 227. The Judicial
Committee at 12 M. I. A. 441, says that " as a ground for judicial decision these
speculations are inadmissible " : the force of any doctrine depends on its recep-
tion. (Ibid., p. 436.) But the character of the doctrine is sometimes virtually
conclusive for or against its admissibleness, and the view expressed by the High
Court may derive some support from the dicta of Lord Wensleydale in More-
house V. Rennell, 1 CI. & Fin. 546, adopted by Willes, J., in the Tagore Case,
L. E. Suppl. I. A., at p. 68. On the other hand, in Reg. v. Bertrand, L. E.
IP. C, at p. 520, it is said that the Courts cannot make that law which the
Legislature or usage has not made so. This is quoted and approved in Reg. v.
Duncan, L. E. 7 Q. B. D., at p. 200. In Dalton v. Angus, L. E. 6 A. C, at
p. 812, Lord Blackburne recognizes fictions as a beneficent usurpation, departure
from which would be as great a usurpation by the Courts. That even principles
quite foreign to the Hindu Law may thus obtain reception and react on the
S.II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 797
It is only necessary to read the Smritis with a little care to
perceive that something like a Spartan indifference to mere sexual
purity (w) prevailed amongst the Hindus whose habits and ideas
are recorded in these ancient compositions (n). In discussing the
punarbhu (twice-married woman) and the svairina (faithless
wife) Narada shows that irregular relations were common. The
chief care manifested is as to the ownership of the children, which
is said to belong to him who has begotten them, if the husband
whole system appears from the discussion above, p. 578 ss. See Suraj Bunsee
Koer's Case, L. R. 6 I. A., at p. 102.
(m) Vishnu, Transl. XV. 27, and note. See McLennan, Studies in Anc.
Hist., p. 178. For the legend of Vasishtha, called in to his aid by King Saudasa,
see Col. Dig., Book V., T. 229, Comm. The controversy pointed at in
Vasishtha, Chap. XVII., paras. 6 ss., shows very clearly that in his time it was
still an open question whether additions to a family might not allowably be
obtained by the aid of an outsider. Vasishtha expresses no decided view. The
puritan Apastamba (Pr. II., Pat. 6, Khand. 13, paras. 6, 7) ascribes the son
thus obtained to the real father, but the Vedic Gatha quoted by him necessarily
implies that procreation by deputy was very common. Manu, IX. 51, ascribes
the offspring to the woman's husband, comp. V. 162. He recognizes, IX. 162,
that a man may have two heirs, one only of whom was begotten by himself,
and takes it as of course that a child of an unknown father belongs to the
master of the house in which he is born, V. 170; see above, p. 794, note (a).
An indication of the same ancient usage is to be found in the Buddhist Law,
published by Mr. Jardine, Judicial Commissioner of British Burmah. In
Chap. II., sec. 89, it is said that where a daughter, disapproving of the husband
chosen for her by her parents, gets a son procreated by another man, such a one
is recognized as a Khettadza {i.e. Kshetraja) son. This part of the Burmese
Law has obviously been introduced from India, and probably reproduces more
archaic rules in many instances than those that have been preserved in India
itself.
(w) The capture of brides by force or pretended force was common. It is
noted of a blind daughter that any wooer may carry her off, and no one hurl a
javelin at him. Muir's Sansk. Texts, vol. V., p. 458; comp. Manu, III. 33, 34.
In Baudhayana, Pr. IV., Adh. I., para. 15, it is said that an abduction gives no
marital right. The " mundium " jealously guarded by early European law was
a corrective of the rough wooing of capture. It is found insisted on in the
" Vagaru Dhammathat," translated from Pali by Dr. Forchhammer; but the
law is evaded by three successive elopements.
The passage quoted from the Atharva Veda in Muir's Sansk. Texts, vol. I.,
p. 280, seems to indicate that Brahman women were sometimes taken from
their husbands by powerful men. It shows also that Brahmans married the
wives or widows of Raj any as and of Vaisyas. In such a case the Brahman is
to be regarded as the only real husband. See Zimmer, Altin. Leb., p. 326.
Such practices are far removed from the Brahmanical usages and ideas of the
present day.
798 HINDU LAW [BOOK III.
has sold his wife's embraces (o), but otherwise (pi) to the husband.
Vasishtha (q) calmly deals with the case of a woman who, having
left the husband of her youth to live with another, afterwards
returns to his family. She stands on the same social footing as a
widow remarried in the family she joins (r).
(o) The purchase or hiring of another man's wife to procure offspring for
oneself is authorized by the texts of Narada, quoted in Col. Dig., Book V.,
T. 342, 343. See also T. 257, 264, 265 and Comrn. The prevalence of such a
custom affords the readiest explanation of the illegality of the adoption of a
sister's or a daughter's son. The adopted is " a reflexion of a begotten son."
The conditions of legality in the case of the begotten son adhere, therefore, as
far as possible to his representative. Now when a sonless man leased another's
wife to provide him with offspring, it was impossible that he should take his
own sister or daughter : incest was abominable, while other immoralities had
not yet assumed that character. When adoption took the place of procreation
an imitation of nature was still kept up, and she who could not be to a man the
Brctual mother of a begotten substitutionary son was not allowed to be mother
of ^15 substitute the son given in adoption.
The Dattaka Mimamsa, sec. V., 16 ss. places the prohibition on the ground
that a man could not be called in to procure a son for the husband of his own
daughter or sister. The statement is of course quite true. The one form of
licence even with its limitation is as revolting to modern ideas as the other.
Of the two it seems more reasonable to trace the rule to an extension of the
fiction of a natural relation in the adoptive father's own family rather than to
limitations on the replenishment of another family. The Roman Law said,
** Adoptio demum in his personis locum habet in quibus etiam natura potest
habere," Poth. Pand. Li. I. Tit. VII. § XVI. ; and the Hindu law of adoption
presents many instances of the influence of the same principle, as in preventing
a man's adoption of one older than himself, and whom, therefore, he could not
possibly have begotten, and adoption by an immature girl who could not be
mother of the representative son. See Steele, 388, 44, 48.
(p) Hence the story of Pandu in the Mahabharata, quoted Col. Dig., Book V.,
T. 273, Comm. There was much controversy on the point, as may be seen from
Col. Dig., Book v., T. 253 Comm., and many other passages.
One of the laws of the Alamanni provided that where a man had carried off
the wife of another he was to pay a fine to the husband. If the captor took her
to wife while the fine remained unpaid, any child resulting from the marriage
before the fine was paid was to belong to the former husband. So as to the
children of a daughter taken without the mundium or guardianship being
acquired from her father, see Canciani, Leg. Barb., vol. II., p. 335.
(g) Chap. XVII. 19.
(r) Along with general censures of adultery (Manu IX. 30) there are in
Manu (VIII. 352, ss.) and the other Smritis (Yajn. I. 72, 74; comp.
Vishnu XXXVII. 33) such indulgences allowed as show that caste was thought
much more of than mere chastity. Girls are indeed encouraged to fornication
with men of high class. (Manu VIII. 365 ; comp. 2 Str. H. L. 162, and p. 376,
supra.) The penalties provided are for the insolence of those who connect
S.II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 799
It is not amongst people of such habits and ideas that we can
look for the delicacy which now characterizes the relations of the
sexes in advanced communities. The gradual abolition of the
grosser means of supplementing a family in favour of the system
themselves with members of a class different from their own (Vyav. May.,
Chap. XIX., para. 6) — in the case of men with their superiors (Manu VIII.
374 ss.), in the case of women (Manu VIII. 371) with their inferiors. To the
same effect is Narada. (Pt. II. , Chap. XII. , Sutra 78 ; Vyav. May. , Chap. XIX. ,
para. 11 ; comp. 2 Str. H. L. 167.) The object of the restrictions and the
indulgences was to maintain the lordly superiority of the twice born (Manu III.
155, 156, 178; IV. 80; V. 104; X. 317, 319; XL 84, 101; XII. 43) and to
prevent their corruption (Manu V. 89; VIII. 353; IX. 7; Col. Dig., Book IV.,
Chap. I., T. 8, 77, 78, 79, 83) through the infusion of low-caste blood; the
sons being supposed to partake more largely of the nature of their fathers
(Manu, III. 49; IX. 9, 32, 35, 36; X. 5, 12, 30, 64, 67, 72; Yajn. I. 93).
The notion that male offspring partake more largely of the father's nature,
and female offspring of the mother's, has been widely entertained : see ex. gr.
Lucr. De Nat. Eer. IV. 1229—1232, Ed. Munro; and the denunciations of
adultery that occur rest on its tendency to confuse caste, and to deprive the
manes of the true ancestors of their due offerings — a privation regarded as a
great though undefined calamity. See Thomson's Bhagavadgita, p. 7.
Vasishtha says (Chap. XXVIII. 1 — 9 ; Chap. V. 1 — 4) that a woman is not by
unchastity made more than temporarily impure. (So Yajn. I. 72.) She
imparts no taint of sin during dalliance, and is not to be cast off by her
husband for any impurity. A tradition preserved in the Mahabharata com-
mends king Mitrasaha for accommodating the sage Vasishtha with his wife
Damavanti.
In the case of unmarried women the state of feeling may be gathered from
the functions assigned to the Apsarases in the Vedic heaven (see Muir, Sansk.
Texts, vol. v., pp. 307, 308, 345, 430; vol. IV., p. 461). Manu's approval or
permission of a sacrifice of modesty to a man of higher class (Manu VIII. 364)
is reproduced in the Pali law books of the Burmese. See Notes on Buddhist
Law, III., sec. 140, p. 14. And that some men had no troublesome sensitive-
ness about their wives' chastity is plainly indicated (see Vas. XIV. 6 — 11).
The Taittiriya Brahmana gravely explains the character of the reward given
for sexual association, and the sage Yajnavalkya (II. 290, 292) provides against
cheating on either side. With " Dasis " or slaves not secluded, Narada thinks
connexion innocent (Nar., Pt. II., Chap. XII., paras. 78, 79), and he treats
the ornaments of courtesans as exempt from seizure like the instruments of
musicians, as the means by which they gain their livelihood. This way of
regarding the subject has come down to modern times, and, not to go farther,
Nilakantha in the Mayukha ranks courtesans with the members of other
business associations. (Vyav. May., Chap. XVII. 2; Chap. XIX. 10, 11;
Chap. XXII.) The sisterhoods of dancing women must hence be deemed not
wholly foreign to the Hindu system as it was, though that system contains
within itself the means of a gradual purification corresponding to the advance
in moral and social refinement manifested in the adoption of higher standards
in the customary law.
800 HINDU LAW. [BOOK III.
of adoption is itself a striking evidence of progress in civilization.
The appointment of a daughter held an intermediate place between
this and the coarse materialism of the earliest modes of substitu-
tion (s). It is no longer recognized (t), but traces of the institu-
tion still remain in the existing law. From it on the one hand has
been derived the right of succession of the daughter and the
daughter's son (t;), while on the other it is connected with the fitness
of a daughter's son for adoption. As an imitation of a real son
the adopted son ought to be born of some woman whom the
adopted father could have married (w). This excludes the son of
a daughter, and such is the law generally received amongst the
higher castes (x), but amongst the lower castes sub-divisions of
the great Sudra class almost everywhere, and amongst some of
the higher castes by their customary law, the daughter's son is
deemed fit for adoption, and even the most fit on account of the
place he might formerly have taken as a son by appointment, as
well as of the blood connexion on which the system of appoint-
ment itself was founded (y).
The passage of Vasishtha (z) which directs that a man desiring
to adopt shall make his selection from amongst near relatives, and
for choice take the nearest (a), is so obscurely expressed as to
admit of various interpretations (6). How the ingenuity of com-
mentators has been exercised upon it may be seen in Colebrooke's
note to the Mit. Chap. I., sec. 11, para. 13. The Samskara
Kaustubha (c), and the Nirnaya Sindhu (d), construing the direc-
(s) Col. Dig., Book V., T. 295, 296, 304.
(t) Vyav. May., Chap. IV., sec. IV., para. 46.
(v) See above, pp. 79, 405—6; Bhau Nanaji v. Sundrahai, 11 Bom. H. C. K.
at p. 274.
(w) See above, pp. 798, note (o) ; Ramchandra v. G&pal, I. L. R. 32 Bom
623; Walbai v. Heerhai, I. L. R. 34 Bom. 491 ; Yamnava v. Lakshman, I. L. E
36 Bom. 533.
(x) See Datt. Mim., sec. II. 74; Vyav. May., Chap. IV., sec. V., para. 11
Bai Nani v. Chuni Lai, I. L. R. 22 Bom. 973.
(y) Datt. Mim., sec. II. 74, 93, 105, 107, 108; comp. Vishnu XV. 47
Ramlinga Pillai v. Sadasiva Pillai, 9 M. I. A. 506.
(z) Chap. XV., para. 6; Datt. Mim. II. 15, 75.
(a) This is not compulsory now, see Sreemati Uma Dayi v. Gokool Ananddas
Mahapatra, L. R. 5 I. A. 40, 51, unless for Bombay a special local law is
constituted by the Vyav. May., Chap. IV., sec. V., paras. 16, 19. This does
not seem to be admitted by the Sastris. See below, sec. 4.
(h) The Datt. Mim. rests on a passage of Saunaka. See D. M., sec. II. 2.
(c) Sec. III., pp. 45b, 47a.
id) Sec. III., p. 63a.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 801
tion most liberally, approve the adoption, failing a sagotra
sapinda, of a daughter's or a sister's son (e). The Sastris, follow-
ing the Vyav. Mayukha (/), are almost uniformly opposed to this,
except in the case of Sudras {g). They rely on the impossibility of
a real paternal and filial relation between the fictitious father and
a son so born; and the decisions in Bombay must be considered
perhaps to have confirmed the Sastris' view (h), but the cus-
tomary law seems in a measure at least to have been represented
by the doctrine of the two works referred to (f). These were no
doubt written under the influence of ideas which shaped the cus-
tomary law, and they afford an example in their divergence from
the more generally received authorities of parallel growths of
doctrine springing from the same original source, yet taking quite
different lines of development according to the medium in which
they were placed. The real nearness of the daughter's son once
procured ready acceptance for the doctrine of appointment, and
this in its turn has facilitated the admission of the daughter's son
as fit for adoption. The Sastra had, however, to be interpreted
accordingly, and this interpretation, setting aside the ordinary
doctrine of a necessary difference in the families of birth of the
real mother and the adoptive father, paved a way for the admis-
sion of the sister's son (fe). In the South of India the Brah-
manical law was for the most part apparently accepted only with
this qualification, adapting it to previously existing customs, as
in the case of marriage between the children of a brother and a
sister rejected by the stricter law of the North, but allowed in the
South, because it could not be prevented (i).
The appointment of a daughter appears to have been conceived
in two ways. According to the one the appointed daughter herself
(e) This is opposed to the Datt. Mim., sec. II. 32, 33, 74, 95, 98, 102.
(/) Chap. IV., sec. V., para. 36.
(g) See ex. gr. above, p. 410.
(h) Gopal Narhar Safray v. Hanmant G., I. L. K. 3 Bom. 273, 298;
Sriramalu v. Ramayya, I. L. K. 3 Mad. 15.
(t) Steele, L. C. 44, 46, 183; 2 Str. H. L. 101. See Gopal Narhar v.
Hanmant G. Sajfray, Bom. H. C. P. J. 1881, p. 715; S. C. I. L. K. 6 Bom. 107.
(k) The sister's son was amongst many of the aboriginal tribes heir to his
uncle, see above, pp. 271, 274; and as adoption became regarded as necessary
to heirship he would thus appear to the lower castes the most fit for adoption.
Amongst the higher castes such adoptions are probably imitations suggested
by natural affection.
(I) Baudh. Pr. I. Adh. 1, Kand. 2, para. 3; comp. supra, pp. 7, 156.
H.L. 61
HINDU LAW. [book III.
took the place of a son (m), and then her son naturally succeeded
her by representation. She was given for inheritance the place
of a male, a place as a source of further succession, such as the
Vyavahara Mayukha assigns her in the devolution of property not
included amongst the special varieties of stridhana. According to
the other conception she was merely the instrument by which an
heir to her father could be produced in the person of her son (n).
Vasishtha places the appointed daughter third amongst the subsi-
diary sons, and he says (o), " it is declared in the Veda, a maiden
who has no brothers comes back to the male ancestors, returning
as their son." In Manu IX. 127 ss., the transition may be observed
to the second conception. The daughter, it is said, meaning the
appointed daughter, is a man's heir failing a son, and as a woman's
daughter usually takes the property given to the mother at her
marriage, so in the particular case of the appointed daughter her
son takes the property of his maternal grandfather through her.
That her right is deemed the prior one appears from verse 134, in
which it is said she takes equally with the after-begotten son of
her father, and from verse 135, which on her death without a son
gives the property that has devolved on her to her surviving
husband. Yet in verse 136 it is said that by the son whom she
produces " the maternal grandfather becomes in law the father
of a son (p) : let that son give the funeral cake and possess the
inheritance." This seems to make a subsidiary son of the grand-
son by the appointed daughter ; but again in verse 139 this grand-
son is placed on the same footing as a son's son, which implies
an intervening right through which his own is derived and a
consequent precedence of his mother. Apastamba makes no
provision for appointment, or for the succession of a widow. He
hesitatingly admits the daughter on failure of other heirs (q).
Gautama recognizes the son of the appointed daughter but not the
(m) Col. Dig., Book V., T. 203, 204, 215, 216; Vasish., Chap. XVII.,
para. 15. See Dr. Biihler's note ad loc.
(n) Vishnu, Chap. XV., paras. 4—6. The two senses of putrikaputra are
dwelt on in the Vyav. May., Chap. IV., sec. VI., para. 43. The institution,
though continued in some places down to modern times, is distinctly excluded
by Nilkantha from the law of the present day. Vyav. May., loc. cit., para. 46.
(o) Sec. 16.
(p) Col. Dig., Book v., T. 207 says " sire of a son's son," probably from
a different reading. See also T. 209, compared with Manu IX, 131.
iq) Pr. II., Bat. 6, Khand. 314, Sutra 4.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 803
daughter herself (r). Vishnu has a similar rule (s), to which he
adds one providing for the daughter's succession as such after
the widow (t). Baudhayana (v) also recognizes the appointed
daughter's son, but not the daughter, as a subsidiary son, to whonn
he assigns the next place after the son lawfully begotten. In his
list the adopted son comes fourth.
By the time when the Mitakshara was written the daughter's
right as heir had gained general recognition apart from her
appointment (w). As putrika-putra her place is speculatively
recognized (x), but as secondary to that of her son bom under the
prescribed condition. She no longer enjoys an equal right with her
own after-born brother as in Manu, and her son ranks but as a
subsidiary son, equal, as Visvesvara says, to a lawfully begotten
son in the absence of such a son, but inferior in being one degree
more distant from the propositus (y).
The son by simple adoption had in the meantime been gaining a
greater and greater preference to the other substitutionary sons.
When, traversing a wide interval, we pass from the Vedic period
to that of the Smritis (z), we find adoption recognized, but still in
a comparatively subordinate rank, as a means of continuing the
family. It is mentioned, along with the appointment of a daughter,
the levirate, and other means of procuring offspring, in all the
principal compilations whose precepts on this subject have been
(r) Chap. XXVIII., Sutra 33. He gives him only the tenth place, which is
explained or explained away by Haradatta ad loc, and Vijnanesvara in the
Mit., Chap. I., sec. XI., para. 35.
(s) Chap. XV., Sutra 4.
(t) Chap. XVII., Sutra 5.
(v) Pr. LL., Adh. 2, Kand. 3, Sutras 15, 31. See Col. Dig., Book V.,
T. 213, and Comm.
(w) Mit., Chap. II., sec. II., para. 5. See the Utpat Case, 11 Bom. H. C. R.,
at p. 274.
{X) Mit., Chap. I., sec. XI., para. 3.
iy) The appointed daughter's son, superior to his own mother as heir to her
father, had almost a counterpart amongst the Greeks. The heiress given in
marriage by her father transmitted to her son a right of succession to her
father which excluded herself and her husband, though, failing sons, she was
capable of inheriting. See the seventh and ninth speeches of Isaeus, translated
by Sir W. Jones in his works, vol. IX., pp. 188, 200, and 226, 231, with the
summary of the Attic laws prefixed to the collection. The son born under such
an arrangement appears to have been capable of taking both estates unless
(he had brothers. See Dem. adv. Makart ; sees. 12, 13, 14.
(z) Above, pp. 25 ss.
804 HINDU LAW. [BOOK III.
preserved. The different relative places assigned in these vi^orks to
the different kinds of sons are due probably to the several modes
of affiliation having come into vogue in different families or tribes
long before any methodical classification of them was attempted.
A reference to some vague principle or a mere convenience in
enumeration determined the order of the sons in the earliest lists.
In the later ones contained in such systematic compilations as
Manu and Vasishtha the different kinds of sons are divided into
those who are kinsmen and heirs, and kinsmen without being
heirs (a). Several lists are given in Colebrooke's Digest, Book V.,
Chap. IV., sec. 1, and in the Viramitrodaya, Chap. II., Pt. II.
The kinsmen not heirs are described by the Mitakshara (b) as
not heirs to collaterals. To their fictitious fathers they are in their
turn equally heirs as the other substitutionary sons (c). The place
of the several kinds of sons in the one or the other class differs in
different Smritis (d). It is probably impossible to find any better
ground of reason for the variances than that assigned by Yijnanes-
vara, who says that precedence must be determined by the
character of the subsidiary son (e). Visvesvara in the Subodhini
says that Manu's list is a mere loose enumeration not aiming at
a precise regulation of priority, and that the same observation
applies to the other Smritis in which a similar apparent
classification occurs.
(a) See ex. gr. Gautama, Adh. 28, paras. 29 — 32. This Srariti assigns the
third place to the adopted son, making him a kinsman and heir, while the son
of an appointed daughter stands tenth, and amongst the kinsmen without
heirship.
{h) Chap. L, sec. XT., p. 30.
(c) It seems probable from the rule evidently derived from the Hindu Law,
still preserved amongst the Burmese, that the " sons not heirs " were originally
not heirs to their ceremonial father. They may have been taken merely to
perform the indispensable exequial rites, as they seem to have had in com-
petition with the other class no higher right than the illegitimate son, a right
to what the father gave them. See Notes on Buddhist Law by J. Jardine, Esq.,
Judicial Commissioner in Burmah, Part V., Chap. II., sec. 85. The dharma-
putra or ceremonial son, appointed merely to perform exequial rites, not taking
any share in the estate, is a still existing institution, Steele, L. C. 185, 226.
The Madhaviya (Trans, p. 21) quotes Vishnu as wholly excluding the four classes
of sons of unknown paternity in competition with the legitimate son, refusing
them even the quarter of a share allowed to other secondary sons. This passage
is wrongly attributed, it seems, to Vishnu, but it may still embody an ancient
rule.
(d) Comp. Baudh., Pr. II., Kand. 2, para. 23, with Gaut., Adh. 28,
paras. 29, 30.
(e) See also Col. Dig., Book V., T. 277, Comm. ; T. 278, Comm.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 805
This grouping of the several kinds of subsidiary sons in two
classes with important differences of rights does not occur in
the Smriti of Yajnavalkya on which the Mitakshara is founded.
The task of the Hindu expositor was thus made easier, since, taking
Yajnavalkya as his guide, he construed the other Smritis with
reference to this as the chief, but it forced him to go to other
sources for the determination of the right of an adopted son to
succeed collaterally (/). This is established on the authority of
Manu (g), in whose list, as well as in Baudhayana's (h), the adopted
son is placed in the higher class of sons and heirs (i).
Yajnavalkya II. 129 — 133 enumerates twelve kinds of sons as
capable of continuing the succession in a Hindu family. These
are : (1) the aurasa or ordinary son; (2) the putrika-putra, or son of
an appointed daughter; (3) the kshetraja or son begotten by an
appointed kinsman ; (4) the gudhaja, or one furtively produced in
the husband's house; (5) the kanina, the love-child of a damsel
taken with her when she is married; (6) the paunarbhava, or son
of a twice-married woman; (7) the dattaka, or son given by his
father, by both father and mother, or by the mother alone with the
father's assent, in his absence or after his death; (8) the krita, or
the son bought (/c) ; (9) the kritrima, or orphan taken with his own
assent only; (10) the svayamdatta, or son self-given either on
losing his parents or being abandoned by them ; (11) the sahodhaja,
or son of a bride pregnant at the time of her marriage; (12) the
apaviddha, or son cast out by his father and mother and taken
as a son by a protector.
if) Comp. Col. Dig., Book V., T. 277, Comm.
(g) Mit., Chap. I., sec. 11, paras. 30, 31.
(h) Baudh., Pr. II., Adh. 2, Kandika 3, paras. 20, 31, 32.
(i) See Col. Dig., Book V., T. 277, Comm.
(k) The sale of children by their parents was a recognized institution amongst
the Eomans, The gradual spread of Christian ideas made such sales disreputr
able, but the attempts to prevent them as illegal caused so much infanticide
under the form of abandonment, that Constantine allowed sales in cases of
distress. Justinian, after much hesitation, at last prohibited all alienations of
children. They were still seized and sold by the Roman " revenue depart-
ment " for some time after private sales had been forbidden. The person
who preserved an exposed child (on the exposure of infants at Athens and
Rome, see Petit, Leg. Att., p. 144), with its parents' knowledge might keep it
either as a son or as a slave (Maynz, Dr., Rom. § 328), and infants might be
given in adoption, but arrogation was till a late period limited to those who
had attained the age of puberty and discretion (Tomkins and Lemon, Gaius,
p. 96).
806 HINDU LAW. [BOOK III.
It will be seen that in the case of the first six there was either
an actual connection by blood with the legal father or at least a
strong probability of it. In the case of the last six this connection
subsisted if at all only accidentally. The son by gift and accept-
ance stands at the head of this second class, and as the gradual
purification of manners brought the other substitutionary sons into
discredit, the son lawfully begotten and the son by adoption have
now become the only ones recognized by the general Hindu Law.
Thus the Hindu Law of the present day (l) does not recognize the
putrika-putra (m) or any kind of subsidiary son (n) except the
dattaka (o), and in some districts the kritrima (p). The latter mode
of affiliation is still allowed in the Mithila region (g), but it does not
appear to be much in use (r).
(l) See Vyav. May., Chap. IV., sec. IV., para. 46; Smr. Chand., Chap. X.,
para. 5; 2 Str. H. L. 82; Col. Dig., Book V., T. 279, 280, 420, Coram.;
Smriti Chandrika, Chap. X., para. 6.
(m) It is to be observed that the putrika-putra is not found in Manu's list
of subsidiary sons, IX. 159, 160. But vv. 132 ss. leave no doubt that either
the appointed daughter herself or else her son took the place of a son to the
appointing father. Comp. 2 Str. H. L. 199.
(n) Many of the smritis allot to the substitutionary sons various specific
aliquot parts of the father's estate. All such rules are inoperative, the
Madhaviya says, in this Kali Yuga. See Madhaviya by Burnell, pp. 21, 22,
24.
(o) Steele, L. C. 43; Datt. Mim., sec. I. 64; MS. 1633; Col. Dig., Book V.,
T. 280; Vyav. May., Chap. IV., sec. IV., para. 46.
(p) Nursing Narain v. Bhutton Lall, Sutherland's Rep. for 1864, p. 194. As
to the Kritrima adoption, see Col. Dig., Book V., Chap. IV., sec. X. note;
Wooma Daee v. Gokoolanand, I. L. R. 3 Cal. 687 (P. C.) S. C, L. R. 6 I. A.
49, referring at p. 51 to Ooman Dutt v. Kunhia Sing, 3 C. S. D. A. R. 144;
and see the cases under note (q) infra.
As to the classes (9) and (10), see Balvantrav Bhaskar v. Bayabai, 6 Bom.
H. C. R. 83 0. C. J., deciding that an orphan cannot be adopted, though self-
given or given by his brother; Bashettiajjpa v. Shivalingappa, 10 Bom. H. C. R.
268; Suhhaluvammal v. Ammakutti Ammal, 2 Mad, H. C. R. 129.
(q) The Collector of Tirhoot v. Huropershad Mohunt, 7 C. W. R. 500;
Mussamut Shibo Koeree v. Joogun Singh, 8 ibid. 155; Baboo Juswant Singh
V. Dooleechund, 25 ibid. 255; Wooma Daee v. Gookhoolanund Dass, I. L. R.
3 Cal. 587 (Pr. Co.) ; Tagore Lect. 1880, p. 627.
(r) In 2 Str. H. L. 165 ss. there is an interesting discussion between Cole-
brooke and Ellis on the legality in the present age of the Krita form of adoption
by purchase. Ellis contends that in the South of India usage has sanctioned
this form, and that the standard authorities, at any rate in the shape in which
they have there been received, do not prohibit it. Sir T. Strange referred the
question to the Court of Tanjore, and there thirteen Sastris were unanimous in
pronouncing against the validity of such an adoption. In the same discussion
S. II. J PLACE OF ADOPTION IN THE HINDU SYSTEM. 807
Amongst some of the lower castes the levirate still prevails (s) as
a source of offspring received as legitimate. In Orissa the usage,
once general (t), is becoming restricted to the lower orders (v).
With these exceptions and those arising from the peculiar marriage
customs of some of the non- Aryan tribes (w), adoption may now be
regarded as the only legal means of satisfying the need of a son
when natural offspring fails or has perished.
A Svayamdatta, the Sastri said, was not to be recognized in
the Kali Yuga, so that though a man of fifty and having children
might be deemed apt for adoption, yet he could not be adopted if
his parents did not survive to give him away (x).
Colebrooke admits that an appointed daughter may take the place of a son,
as provided in the Mit., Chap. I., sec. II., para. 23; but the Sastris do not
assent to this. They msist that in this Kali Yuga " the competency of any
son other than that of the body and one given in adoption is repealed," and that
the prohibition extends to all the castes. Op. cit., pp. 188, 189. See to the
same effect the Sastri, ibid., p. 82.
(s) Above, pp. 395 ss,
(t) Col. Dig., Book v.. Chap. IV., sec. X. note. The practice in Orissa of
raising seed to one deceased is recognized by Jagannatha, Col. Dig., Book V.,
T. 300, Comm. ad. fin.
(v) Comp. 2 Str. H. L. 164.
(w) These have gained a partial recognition in various parts of India from
the Brahmans, who in return have imposed their own doctrines, and especially
that of their own superiority, on the classes below them. Proofs of these
statements in the province of law we are now considering may readily be
found in such works as Buchanan's Mysore, and Wilks's South of India. Mr.
Ellis thought that the Krita or son bought was forbidden to Brahmans only,
but he was contradicted by Colebrooke and the Sastris. See 2 Str. H. L.
149 ss.
(x) MS. 1755; Vyav. May., Chap. IV., sec. V., para. 6. See Col. Dig.,
Book v., T. 275; the Maharaj Case, 1 Borr. 202 (No. 43); The Collector of
Sural V. Dhirsingji Vaghbaji, 10 Bom. H. C. K. 235; Balvantrao Bhaskar v.
Bayabai, 6 Bom. H. C. R. 83; Subbaluvammal v. Ammakutti Ammal, 2 Mad.
H. C. R. 129; Jogesh v. Nritya, I. L. E. 30 Cal. 965.
The word " putra " employed in the Smriti passages to express " son " see
ex. gr. Col. Dig., Book V., T. 273, does not properly include an adopted son.
Hence these passages cannot be literally cited to justify the gift in adoption
of an adopted son, or generally such a gift by a grandfather or other head
of the family. Custom conforms to these restrictions, as may be gathered
from the absence of cases of attempted gift of the kind in question in the
records of the High Courts. Disinheritance is a different thing, and so is
separation. See Steele, L. C. 185 ; Col. Dig., Book V., T. 264 ; above, pp. 547 ss.
It is the parents or the father who must needs give in adoption, and to a
father in person or represented by his wife or widow. See Col. Dig., Book V.,
T. 275 Comm.
The influence of a growing refinement of feeling is seen in the ascription to
808 HINDU LAW. [BOOK III.
A section of the Mitakshara (y) is devoted to the subject of the
dvyamushyayana, or son of two fathers. As a means of recon-
ciling the texts of Manu which allow and condemn the procreation
of a son by a substitute (z), Vijnanesvara expounds them as per-
mitting this in the case of a widow who has only been betrothed,
not in the case of one whose marriage has been completed. The
brother of the deceased husband may beget one son on the widow,
who is to be formally married to him for this purpose, and the
son thus produced belongs to the husband deceased, unless the
procreator is himself destitute of male issue, in which case or by
special agreement the son becomes a dvyamushyayana, capable of
offering oblations to both fathers and of inheriting from both.
Vijnanesvara thus mitigates the coarseness of the ancient rule (a).
The raising up of seed in the manner here contemplated being
disallowed in the present age (b), it is impossible that there should
be a dvyamushyayana of the original type. But the sense of the
term has been extended by the commentators on the Mitak-
shara (c) so as to include the only son of one man given in adoption
to another on an agreement that he shall retain his filial relation to
the giver at the same time that he assumes it to the donee. The
Vyavahara Mayukha fully accepts this doctrine, and deals at length
with the double relationships that arise from such an adoption (d).
Vishnu of the text by which the sons of uncertain origin were to be excluded
from the funeral oblation and succession to the estate. See Mit., Chap. I.,
sec. XI., p. 27, note; Vishnu, Chap. XV., Datt. Mim., sec. II. 61.
The influence of the older on the development of the newer institutions is
well seen in the story of Sunahsepa on which the Samskara Kaustubha, by a
characteristic argument, founds a justification for the adoption of a man
already initiated in his family of birth. The " given son," it is said, must
include the son " self-given." Sunahsepa was self -given. It is not to be
supposed that he had not been initiated. The transaction in his case cannot
be questioned, as it rests on Vedic authority. Hence initiation does not
impede ^' self-gift " nor consequently gift by parents in adoption. The story
of Sunahsepa is relied on as an instance of a svayamdatta. See Col. Dig.,
Book v., T. 300, Comm., which immediately afterwards pronounces against
any such substitutionary son in the present age. Ibid.
iy) Chap. I., sec. X.
(z) Comp. Baudh., Pr. II., Kand. 2, para. 12.
(a) See Baudh., loc. cit. ; Narada, Pt. II,, Chap. XIII., paras. 14, 23; and
Yajn. I. 68, 69.
(b) Datt. Mim., sec. I., para. 66.
(c) See Mit., Chap. I., sec. X., para. 32, notes.
(d) See Vyav. May., Chap. IV., sec. V., para. 21 ss. The translation of
Eao Saheb V. N. Mandlik is here greatly superior to that of Borradaile.
Krishna v. Paramshri, I. L. E. 26 Bom. 637.
8. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 809
The giving of a son as dvyamushyayana is recognized by the
Judicial Committee as allowed by the existing Hindu Law (e). In
the case of an only or eldest son it is said the presumption is that his
father would not break the law by giving him in adoption otherwise
than as a son to both fathers. " This latter kind of adoption would
not sever the connection of the child with his own family " (/).
The Madras Sadr Court ruled (g) that the dvyamushyayana son
is not to be recognized in the present age, but from personal en
quiries it appears that he is not at all unusual in the Southern
districts of Bombay. For this Presidency the Sastris have held
that an agreement may be made between the father of a boy and
the man receiving him in adoption that he shall represent both as
a son (h). In a case in which a Brahman had adopted a boy of a
gotra different from his own it was said that the boy was to be
regarded as a dvyamushyayana. As he would be subject to certain
disabilities in his family of adoption, supposing his tonsure had
taken place in his family of birth, the Sastri seems to have given
him the benefit of a presumption like that relied on by the Judicial
Committee in the case referred to (i).
It follows that for the Bombay Presidency the answer given to
Sir T. Strange (k), rigidly limiting succession to the aurasa or the
dattaka son, cannot be regarded as an accurate statement of the
law. Steele (Z) includes amongst the rules of the customary law
one to the effect that a boy adopted by his father's brother is to
perform the Sraddhas of both and to inherit the property of both,
subject as to his real father's estate to a prior right of heirship
down to a brother's son. This means simply that he is reduced to
the rank of a son of his adoptive father; but the Vyav. May (m)
(e) See Wooma Daee's Case, above, p. 806 (p).
(/) Nilmadhuh Doss v. Bishumher Doss, 13 M. I. A., at p. 100; Gurulinga
Swami v. Ramalakshmamma, L. E. 26 I. A. 116; S. C, I. L. K. 22 Mad. 398.
(g) Oonnamala Awchy v. Mungalum, Mad. S. D. A. E. for 1859, p. 81.
(h) MS. 1692; see Steele, L. C. 47. In the case of an adoption by an uncle
the boy inherits from him, from his real father also, failing heirs down to
brother's sons, i.e. to his own fictitious relation to his real father. Ibid.
This agrees with what Colebrooke says at 2 Str. H. L. 121, that the son of
such an adopted son belongs to the family of his father's upanayana (investiture)
and consequent grotraship. This form of adoption, and that of an only son,
are held valid among the Lingayats, Chenava v. Basangavda, I. L. E. 21 Bom.
105; Basava v. Lingangauda, I. L. E. 19 Bom, 331.
(i) MS. 1675. In the Datt. Mim. it seems to be assumed as of course that a
brother's only son taken in adoption becomes a son of two fathers. See below.
(k) 2 Str. H. L. 82.
(l) L. C. 47. (m) Chap. IV., sec. V., para. 25.
L
810 HINDU LAW. [BOOK III.
makes him heir to his real father immediately on failure of other
sons, at the same time that he ranks as heir to his adoptive father,
though subject to be reduced to a quarter share by the birth of a
begotten son.
The son of such an adopted son belongs, Colebrooke says, to the
family in which the dvyamushyayana received his investiture of
the sacred thread (n). In the Bombay Presidency the dvyamush-
yayana celebrates the sraddhas of both fathers, but his son, it
seems, those of the grandfather by adoption only, not of his
natural grandfather (o). Whether any right of inheritance to the
latter passes to him on his father's predecease has not been
decided (p).
It will be evident from the foregoing discussion how throughout
the gradual narrowing of the field of choice a sense of the absolute
necessity of a son, actual or representative, has never lost its hold
on the Hindu mind (q). This central impulse has persisted through
every variation of detail and must be recognized as due to the
deepest-lying principles of the national character. That character
is reverential, affectionate, and speculative, but always or nearly
always within narrow .limits and with a certain meagreness of
thought (r). In the family with its roots and its branches extend-
ing beyond the present world the Hindu mind has found its appro-
(n) 2 Str. H, L. 122. . He receives his own investiture in that family. Any
adoption after investiture is an irregularity which causes the son of the person
thus adopted to return to his father's gotra, if different from that of his
adoptive family. Such an irregularly adopted son is called anityadatta.
Ibid. The adoption would probably not be recognized in Bombay. See Steele,
L. C. 43.
(o) This statement rests on oral information as to the general practice. As
to this, however, and the right of succession, see Col. Dig., Book V., T. 262,
263 Comm.
(p) As an only son he should not be given, and his succession in his family of
birth would be excluded by brothers.
(q) The man of perfect life ought, at the close of his " householder " stage,
to become a hermit, and hand over his temporal interests to his son. See Tiele,
Outlines, &c., p. 128. The craving for a son to celebrate sacrifices is very widely
spread. In China it is said that one half the families have adopted children.
Only a sonless man can adopt. Nephews are to be taken by preference. The
form is that of a sale which may be real or fictitious. See Journal of North
China Branch E. A. Soc, Pt. XIII., p. 118.
(r) As ex. gr. Baudh., Pr. II., Kand. 14, paras. 9, 10; Kand. 15, paras. 1—6.
See Tiele, Anc. Eel. 123. On the mixed intellectual character even of the
Brahmanas, see Whitney, op. cit., p. 68.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 811
priate centre of interest, in the material perpetuation of the sacra,
an intelhgible and fit connection to their mutual advantage amongst
all the members of the family line (s). To it in its vulgar type
an interchange of influence between the seen and the unseen
is inconceivable except through the palpable connection of
sacrifices (t). They are indispensable, as the material chain was
to Newton for the transmission of physical activity (v). The
purpose of the interchange that is sought is not of an elevated
character, it is not spiritual expansion and enlargement of
being (w), but rather such limited and prosaic ends {x) as may
conceivably be furthered by an humble type of divinities (y).
From the Vedic hymns downwards, boasts of sacrifices offered
have been made the ground for never-ending claims to aid
in the sordid exigencies of ordinary life (z). Those of the family
the son can best understand ; he by his initiation becomes born
again into the unseen family (a) ; he has the traditional formulas
and sacred names. Without these little or no material good can
be hoped for; failing a son by birth, a substitute must be found to
gain it (b) : fertile fields, long life (c), success in lawsuits, continu-
ous male offspring (d), and ruin of enemies. The nobler craving
for an object of special affection, the desire to perpetuate one's
name (e) and worldly influence (/), the wish to educate a youth
who may rule a chief's subjects kindly — all these motives no
doubt operate on occasion with more or less strength in inducing
adoption, but the persistent cause and basis of the institution is the
is) See Gaut., Chap. IV., 30 ss. ; Chap. V. 3, 5, 9.
(t) See Thomson's Bhagavad Gita, p. 7, and note 36.
(v) See Baudh., Pr. 11., Kand. 5, paras. 2, 3, 18; Kand. 9; Kand. 11,
paras. 2, 3; Kand. 12, paras. 11—15; Kand. 14, para. 12; Kand. 15, para. 12.
(w) See Phil, of the Upanishads, p. 266.
(x) See Eig. Veda, I. Hymn 9. Apast., Pr. II., Pat. 7, Khand. 16, paras. 24,
26 ss., show the former prevalence of animal sacrifices.
(y) See Philosophy of the Upanishads, pp. 10 ss.
(z) See Eig. Veda, I. Hymns 12, 14; II. Hymns 4, 12.
(a) Manu II. 172.
(b) Capable therefore of gaining it or of receiving the requisite qualification
by (tonsure and) the sacred thread. 2 Str. H. L. 100; Col. Dig., Book V.,
T. 273 Com. ; Lakshmappa v. Ramava, 12 Bom. H. C. E. 364.
(c) Baudh., Pr. II., Kand. 14, para. 1; Pr. IV., Adh. II., para. 11; Apast.,
Pr. II., Pat. 7, Khand. 16, paras. 7 ss.
(d) Manu III. 262, 263, 277; Vishnu LXXVIII. 9, 19.
(e) See Apast., Pr. II., Khand. 24, para. 1; Datt. Chand,, sec. I. 3.
(/) Col. Dig., Book v., T. 312.
812 HINDU LAW. [book III.
conception of spiritual gain (g), an other- worldliness of a special
variety (h).
It is in this sphere of thought that the procreation of a son Is
regarded as imperative on a Hindu of the higher castes, or at least
an endeavour to that end (f). In the event of incapacity or failure
it becomes a religious obligation {k) to adopt a son in order that the
sacrifices may not fail (l). The stringency of this religious obliga-
ig) Col. Dig., Book V., T. 304, 313.
(h) " Fathers desire offspring for their own sake, reflecting ' this son will
redeem me from every debt whatsoever due to superior and inferior beings.' "
Narada, Pt. I., Chap. III., para. 5. Spiritual benefits, however, are not the
only reason for adoption. The Jains recognize adoption though they have no
sraddha or paksha ceremonies, Sheo Singh Rai v. Musst. Dakho, L. E. 5 I. A.
87; Bhagvandas Tejmal v. Rajmal, 10 Bom. H. C. E. 261; Bhala Nahana v.
Parbhu Hari, I. L. E. 2 Bom. 67; Manik v. Jagat, I. L. E. 17 Cal. 618;
Asharfi v. Rup, I. L. E. 30 All. 197.
Eegard being had to the immeasurable benefits to be secured by the adoption
of a son, it may be a matter of surprise that any Hindu should, except through
accident, die childless. The hope of a begotten son, however, is not readily
resigned. The widow can be instructed to adopt. In poor families the
expenses caused by an adoption both for the ceremonies and the subsequent
maintenance of the adopted son cannot easily be met. In families of wealth
and position the natural parents are brought into an intimacy that is not
perhaps quite welcome, and there is always a chance of the attachment of the
adopted son to his mother and his family of birth making him comparatively
indifferent to the one he has entered by adoption. There is room for fear even
of his plotting against his adoptive father and endeavouring to get him set
aside. Many Hindus, being lukewarm and dilatory, faintly intend to adopt but
do nothing. Hence it happens that adoption is less practised than might be
expected, and the right of selecting an heir to a chief dom or a great estate often
devolves on the widow. The interest which, in such cases, the representatives
of the junior branches have in a good choice has gained general acceptance for
the doctrine that their assent is requisite to the validity of the adoption, though
this is not by all the Marathas perhaps regarded as absolutely essential. The
widow, left to herself, is generally inclined to adopt. She thus in an undivided
family gains consideration, and she is anxious to provide not only for her
husband's Sraddhas but for her own and her father's, the celebration of which
is a duty of the son, though not an absolutely indispensable one. See Vyav.
May., Chap. IV., sec. V., paras. 17, 36; Mit., Chap. I., sec. XI., para. 9;
Steele, L. C. 47, 48, 187, 394; Viram. Transl,, p. 116; Bhagvandas v. Rajmal,
.10 Bom. H. C. E., at p. 265; Rakhmahai v. Radhahai, 6 Bom. H. C. E. 181
A. C. J. ; Gopal v. Naro, 7 Bom. H. C. E. XXIV. App. ; Col. Dig., Book V.,
T. 273, 275 Comm.
(i) See above, p. 789; Baudh., Pr. II., Kand. 16, paras. 10—14; Pr. IV.,
Adh. I., paras. 17—19; and Manu IX. 137; Col. Dig., Book V., T. 270.
(k) 2 Str. H. L. 194, 198
(I) Datt. Mim., sec. I., para. 5; Manu IX. 180.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 813
tion is strongly insisted on by Mitter, J. (w). It was in the case
referred to made a ground for upholding an authority to adopt
given by a minor as being an act at once obligatory and beneficial
to him. This deduction may be doubtful, and a merely religious
obligation is not one that Civil Courts can enforce. Colebrooke
says (n) : " Passages of law recommend, but do not enjoin, adop-
tion for the oblation, the obsequies, and the honour of his name **
according to a text said to be of Manu. The sense of the religious
obligation felt by a true Hindu raises a presumption of fact which
is of weight in cases of conflicting testimony, yet, as has been said
by the Judicial Committee: " Their Lordships do not deny the
force of that presumption, but they cannot shut their eyes to
the fact that childless Hindus die daily without having fulfilled
this obligation or made provision for its fulfilment after their
death " (o).
Were the duty to adopt a son more than a merely moral obliga-
tion it would follow apparently that a power to adopt given to a
widow (p) must be promptly executed. So long as a man lives he
may in most cases reasonably hope for offspring, but with his life
the possibility ceases, and the duty resting on his widow becomes
imperative (q) and urgeniTest she too should die without adopting.
The Judicial Committee, however, approved the judgment of the
Sadr Court of Bengal that the " fact of an authority to adopt
being possessed by a widow, does not supersede and destroy her
personal right as a widow " (r-), and " the claim of a widow duly
authorized to adopt to claim under any circumstances her personal
rights until she does adopt is not affected by a consideration of
what might be the proper course if she could be proved to have
violated any clear and positive legal obligation " (s). The widow
must fulfil in good faith the direction given to her {t), but she is
(m) Rajendro Narain Lahoree v. Saroda Soonduree Dahee, 15 C. W. E. 648.
in) 2 Str. H. L. 83
(o) Nilmadhuh Doss v. Bishumber Doss, 13 M. I. A., at p. 100.
(p) Huradhun Mookurjia v. Muthoranath Mookurjia, 4 M. I. A. 414.
(q) This is more particularly the case when an express direction has beeo
given by the deceased husband than where he has left the widow merely to
fulfil the duty as her own conscientiousness and prudence suggest. Musst.
Suhudra Choiodryn v. Golooknath Chowdree, 7 C. S. D. A. E. 143.
(r) So Musst. Tareenee v. Bamundoss Mookerjee, 7 C. S. D. A. E. 533.
(s) Bamundoss Mookerjee v. Mussamut Tareenee, 7 M. I. A., at pp. 178, 190.
(t) A testator may bequnath property to a boy designated by him for
adoption, and the widows must adopt the boy. They are not allowed to defeat
the bequest by not adopting. " Widows " should for Bombay be " the elder
814 HINDU LAW. [BOOK III.
allowed a discretion as to time and choice unless restricted by the
terms of the power (u). In the Bombay Presidency and in Madras
a widow may adopt without an express power (iv), but this is not
held to lay her under a positive legal obligation, or to prevent her
husband from forbidding an adoption (x). Nor are coparceners of
the deceased husband, whose assent is generally necessary, com-
pelled to assent to an adoption, as, were this a legal duty, they
apparently must do {y). The conclusion seems to be that " though
it may be the duty of a Court of Justice administering the Hindu
Law to consider the religious duty of adopting a son as the essential
foundation of the law of adoption and the effect of an adoption upon
the devolution of property as a mere legal consequence " (z), yet
it is only a duty of imperfect obligation to which no right corres-
ponds in any person who can enforce it at law (a). Even in the case
of a widow authorized, and therefore morally bound to adopt, it
was said that " no suit of that kind can be maintained " {b).
The adoption of a son being prescribed in order to supply the
place of a son begotten (c), the duty does not arise until the birtii
of a son becomes very improbable (d). The existence of a son or
widow," unless she refuses, and then the younger, Steele, L. C. 187;
Nidhoomoni Dehya v. Saroda Pershad Mookerjee, L. E. 3 I. A. 253.
(c) Sreemutty Deeno Moyee Dossee v. Doorga Pershad Hitter, 3 C. W. E.
6 Mis. Eul.
(w) Mit., Chap. I., sec. XI., para. 9; The Collector of Madura v. Moottoo
Ramalinga Satthupatty, 12 M. I. A. 397. The Pandit at 2 Str. H. L. 116 does
not seem to have thought any sanction essential ; Colebrooke did ; Ellis thought
it might possibly be needless amongst Sudras, ibid.
{x) Bayahai v. Bala, 7 Bom. H. C. E. 1 App.
(y) The Datta Kaustubha, as construed by the Sastris, see above, pp. 783,
795, says their assent is not essential.
(z) Pr. Co. in Sri Raghunadha v. Sri Brozo Kishoro, L. E. 3 I. A. 191.
(a) One does not look for entire consistency in works composed like the
Smritis, and thus we find in Manu " many thousands of Brahmans, having
avoided sensual pleasures from their youth up, and having left no issue, have
nevertheless ascended to heaven." Thus the ground of a compulsory duty is
cut away by the highest authority, and salvation pronounced accessible by
asceticism as well as by procreation or adoption. See Manu V. 159.
(h) Musst. Pearee Dayee v. Musst. Hurbunsee Kooer, 19 C. W. E. 127.
Comp. Bamundoss Mookerjea v. Musst. Tarinee, 7 M. I. A. 169, 190.
(c) Datt. Mim., sec. I.; 3 Col. Dig., Book V., T. 312.
(d) Steele, L. C. 43, 182. An adoption by an unmarried man, though
improper, is not deemed void. Col. Dig., Book V., T. 273, Comm. But a
stricter rule prevails in the Southern Maratha country, Steele, L. C. 182. In
Jamoona v. Bamasoondari, L. E. 3 I. A. 72, it is taken for granted that the
age at which a m.ale may adopt is that of discretion according to his law. See
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 815
grandson makes an adoption not only needless but illegal (e). Loss
of caste by the only son or the sole grandson, through an only
son deceased, would, according to Hindu authorities, justify an
adoption (/). The son being bound to perform the funeral cere-
monies of his father and the annual Sraddhas to ancestors, besides
the daily domestic sacrifices, and the many periodical and occa-
sional celebrations incumbent on a Hindu householder (g), the
sinful taint attending exclusion from caste makes it impossible
that he should fulfil these primary duties. They are all of a
religious character and cannot be performed with the intended
spiritual effect by one in a state of impurity (h). But the outcast
son or grandson may be restored to caste (i). In some extreme cases
it has been held that a father may disinherit his son (k) ; it may be
that when this step is taken the father may replace the son thus
degraded by adopting another (I), but it seems very doubtful
whether an adoption would bo valid while a son by birth still holds
also Musst. Anundmoyee v. Slieeh Chunder Roy, 9 M. I. A. 287, and Rajendro
Narain Lahoree v. Saroda Soonduri Dahee, 15 C. W. E. 648.
Under the Eoman Law males only had the capacity for a true adoption, as
they only could exercise the patria potestas under which the child was brought.
(Gaius, I. 104.) An imitative institution grew up by which women adopted
heirs. The Emperor Galba was thus adopted, and the law was widened so as
to recognize the fictitious relation thus created for purposes of succession.
(Maynz, Dr., Eom. § 328.) The rights of succession were mutual, but no
agnatic relation was created. (Tomk. and Lem., Gaius, p. 98.) Comp. 2 Str.
H. L. 128.
(e) Steele, L. C. 42; Datt. Mim., sec. I., paras. 3, 6, 45, 47; Dat. Chand.,
sec. I. 6 ; Manu IX. 168. A son is to be adopted only to prevent a failure of
obsequies, Manu IX. 180; Col. Dig., Book V., T. 301, Comm. But Jagan-
natha contends that though a son is to be adopted for this particular purpose
only, subject to the condition, yet for other purposes he may be adopted though
a begotten son exist. This converts the condition imposed by Manu into a
mere specification of purpose in a particular case. Kulluka's remark is more
cogent, who says that when a temporal consequence (invalidity of the adoption)
is deducible from the text, it is an illegitimate process to deduce only a moral
one, i.e. the impropriety of adoption when a son already exists, while such an
adoption may still be regarded as legal.
(/) Steele, L. C. 42, 181, 381.
ig) Manu IX. 180; Steele, L. C. 225; above, p. 549.
(h) See Steele, L. C. 42; Col. Dig., Book V., T. 319, 328, Comm.
(t) Steele, L. C. 381, 382.
(k) See above, p. 549; Col. Dig., Book V., T. 278 Comm.
(l) A grandson takes his father's place on the exclusion of the father, see
above, p. 549; Steele, L. C. 224; and his existence prevents adoption; see Datt.
Chand., sec. I. 6.
816 HINDU LAW. [BOOK III.
the status of a son, even though expelled from caste (m). Should
the father die in these circumstances he will have sufficiently
intimated that he did not wish to deprive his son, and it would
probably be held that the widow could not supplant the son by an
adoption. The sacra follow the inheritance (n). The non-perform-
ance of them, however reprehensible, does not deprive the heir of
his estate (o). The loss of caste, which formerly operated as a bar
to inheritance, no longer has that effect. Competence to perform
the sacrifices cannot therefore be deemed a condition precedent to
the complete vesting of the estate in the son at the moment of his
father's death, and the estate once vested cannot be taken away
from him (pi). An adoption, even if made, would thus not affect
the estate ; in practice it does not occur. It is said no doubt that
total los<s of caste is equivalent to death, and may validate a second
adoption when the first has in this way become abortive {q), but it
is clear that the statute law has on this point profoundly modified
the Hindu Law (r). Full effect must be given to the intentions of
the Legislature, and though this may be consistent with a power of
disinheritance for good reasons left to the father as a remnant of
the patria potestas (s), it is obviously inconsistent with a capacity
in any one to supersede the heir, become owner, on a ground
declared insufficient to prevent his succession.
The disability to inherit arising from loss of caste having been
abolished, there is a certain inconsistency in retaining the disquali-
fications arising from personal defects. These cannot, according to
Hindu notions, put the sufferer from them into a worse position
than would expulsion from caste (t). They have not, however,
been touched by legislation, and as we have seen they are still
recognized. Sir T. Strange (v) thought that in such cases adoption
was competent to the father who could not derive spiritual benefit
from the incapable son ; but by the customary law of Bombay it is
said that the insanity of a son by birth is not generally a valid
(m) The practice of the castes was indulgent except when the inheritance was
to a sacred ofl&ce, Steele, L. C. 225.
(n) Mann IX. 142; Vyav. May., Chap. IV., sec. V., para. 21.
(o) Steele, L. C. 62, 226.
(p) See above, p. 552.
(q) Steele, L. C. 45.
(r) See Narayan Rainchunder v. Luxmeehaee, 1 Morr. 61.
is) See above, p. 270.
(t) See Col. Dig., Book V., T. 321, 323.
iv) 1 H. L. 77.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 817
cause for adoption (w). It is consistent with this, that the blindness
or dumbness of a son should not justify adoption (x). The marriage
of Hindu children is a contract made by their parents ; the children
themselves exercise no volition, eo that insanity does not neces-
sarily prevent marriage. Marriage having been once contracted,
the son of the disqualified person may take his place down to the
partition of the inheritance (y) ; and should he be incapable of
adopting, his wife may, according to the Bombay authorities, do so
in his stead (z). His assent is implied where dissent has not been
signified, and the act is one regarded as necessarily beneficial.
The same spirit of foresight which makes the sonless man adopt
a son makes him who has but a few sons anxious not to reduce the
number (a), lest in the end he who stood so well for happiness in
the other world should, through improvidence, incur the penalty of
endless destitution. If he have but one son, the gift of that one (b)
is everywhere reprobated as a grave spiritual crime. In every case
the parting with a son, like the acceptance of a son, is too serious a
step to be taken without the assent of the father (c) who so depends
on him for all his future. Allowance is made too for maternal
love, and thus it is said that both parents ought to concur in giving
away a son (d). Should no parents survive, a Sastri said an adop-
tion could not be made because they alone could make the cere-
monial gift (e). A rule almost as strict has been laid down by the
(w) Steele, L. C. 42, 181; comp. ihid. 224.
(x) The caste rules vary as to insanity. The only case in which they all
concur is that of loss of caste, which as it cannot now affect a son's right of
inheritance would probably be held not to make adoption possible during his
life. See Steele, L. C, pp. 225, 381.
iy) Above, p. 699.
(z) Steele, L. C. 182.
(a) One of but two sons ought not to be given according to the Datt. Mini,
and Datt. Chandrika. See below, p. 818.
(6) See 2 Str. H. L. 88, 107. There are some legendary stories of such a
gift, but these are of no authority as law.
(c) Col. Dig., Book V., T. 273, 274, 275, Comm. ; Viram. Transl., p. 116;
Vyav. May., Chap. IV., sec. V., paras. 16, 17; Mit., Chap. I., sec. XI.,
para. 9; Datt. Mira., sec. IV., paras. 10 ss. Balambhatta allows the gift by a
mother in distress or after her husband's death, without special authorization.
See note to Mit., loc. cit. Rangubai v. Bhagirthihai, I. L. R. 2 Bom. 377,
citing Narayan v. Nana, 7 Bom. H. C. E. 163 A. C. J., Ihid. App. Bashetiappa
v. Shivlingappa, 10 Bom. H. C. E. 268, 271.
(d) Vyav. May., Chap. IV., sec. V., para. 16; Steele, L. C. 45. The
mother's assent is not indispensable, Mit., Chap. I., sec. XI., para. 9.
(e) MS. 1755.
H.L. 52
818 HINDU LAW. [BOOK III.
High Court of Bombay (/), but the customary law has in some few
instances been construed as allowing the head of a family to give
away a junior in adoption (g).
At Madras (/i), Allahabad (z) and Bombay (fe) it has been held
that the gift of an only son is valid, the prohibition being only
directory, or on the principle of factum valet, and such was Sir
T. Strange 's opinion (l). The Pandits who have maintained the
validity of such a transaction have not denied that it was directly
opposed to their scriptures, but they have relied on there being
" no express provision for setting aside an adoption made with due
ceremonies " (m). Ellis, too, on whom Sir T. Strange relied, seems
to have thought " that if the act be duly completed it cannot be
reversed " (n). The doctrine of factum valet has been discussed by
H. H. Wilson in a passage already quoted (o). Ellis thinks the
exigency which warrants such an adoption must be distress of the
giver, but he thinks the ceremony once performed is effectual, as
in the case of marriage. In Radha Mohun v. Hardai Bibi (p) the
Judicial Committee have held that the adoption of an only son is
riot null and void under the Hindu Law. Amongst the Lingayats
the adoption of an only son is valid (q), and so it is according to
the Vyav. May. in Gujarat (r).
In the case of Haebutrao v. Govindrao Mankur (s), the question
was submitted to the Sastris of whether the gift in adoption of both
of two sons could be valid. The impossibility of undoing an adop-
tion once completed is insisted on in the answers, but the gift really
in question was that of the sole remaining (and the eldest) son to
the widow of the donor's brother. In such a case the passages
(/) Bashetiappa v. Shivlingappa, 10 Bom. H. C. E. 268; Lakshmappa v.
Ramava, 12 Bom. H. C. E., at p. 376, and the cases therein cited.
ig) MS. 1645. Comp. Panj. Gust. Law, vol. II., p. 156.
(h) Chinna Gaundan v. Kumara Gaundan, 1 Mad. H. C. E. 64; Singamma
V. Vinjamuri Venkatacharlu, 4 ibid. 166.
(t) Hanuman Tiwari v. Chirai, I. L. E. 2 All. 164; Turner, J., dissenting.
(k) Vyas Chimanlal v. Ramchandra, I. L. E. 24 Bom. 367.
(I) 1 Str. H. L. 87.
(m) MS. 1696. Arunachallam Pillai v. Ayyasvami Pillai, 1 Mad. Sel. Dec.
156, quoted 1 Mad. H. C. E. 66.
(n) 2 Str. H. L. 108.
(o) Above, p. 737.
(p) L. E. 26 I. A. 113.
iq) Basava v. Lingangauda, I. L. E. 19 Bom. 428.
(r) Vyas Chimanlal v. Ramchandra, I. L. E. 24 Bom. 367.
(s) 2 Borr. E. 83.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 819
which declare that by the existence of a eon of one of several
brothers all are made fathers, have been variously applied by
Hindu lawyers to support the approval and the disapproval of an
adoption. Nanda Pandita in the Datt. Mimamsa (t) devotes an
elaborate argument to proving that where there is a eon of a full
brother available for adoption, he and no other ought to be
taken (v). Even the son of a half-brother ought not to be chosen if
the nearer relative can be had. And the injunction he contends has
such force that even the only son of a brother may be and ought
to be adopted {w). Without adoption he is not a son in the required
sense to his uncle, and is indeed provided for as heir after his
uncle's widow, his daughter and her son, while by adoption he does
not lose his faculty of ministering spiritually to his real father and
the ancestors who are equally ancestors of his adoptive father.
It is obvious that in such a case the manes of progenitors will
not be left destitute by the transfer of the boy to another family,
while if filial relation to one of a group of brothers involves a similar
relation to all, the real father must still benefit, though in a less
degree, through the sacrifices of the son adopted by his uncle. The
boy becomes in fact a dvyamushyayana (x) who will perform his
real father's obsequies and take his estate if that father should not
have any other son. The Mitakshara and the Vyavahara Mayukha
do not discuss this particular case, but as they recognize the
dvyamushyayana and the theories connected with his double
relations, the adoption of an only son of a brother is permissible (t/).
The eldest son, if living, should be retained in his family of birth
for the celebration of its sacra and the discharge of the father's
obligation to his ancestors. This son alone, Manu says (z), is
begotten from a sense of duty, and on this he grounds a rule of
primogeniture which is soon after qualified (a), and which, as we
it) Sec. II.
(c) So Steele, L. C. 182.
(w) The possibility of adopting the only son even of a brother is doubted
by the Judicial Committee in Srimati Uma Reyi v. Gookoolanand Das Mdhee-
putra, L. E. 5 I. A. 49, 63. The customary law of Bombay favours this
particular kind of adoption, though generally opposed to the adoption of an only
son; see Steele, L. C. 183.
(x) Datt. Mim., sec. II. 36; above, pp. 808, 809.
(y) This was Colebrooke's view, see 2 Str. H. L. 107, where he cites Mit.,
Chap. I., sec. X., para. 1, and sec. XI. para. 32. So too Sutherland, Synopsis,
Head II.
(z) IX. 107; see Dayabhaga, Chap. I., para. 36; 2 Str. H. L. 105.
(a) IX. 111.
820 HINDU LAW. [BOOK III.
have seen, has not, except in special cases, been retained in the
law of inheritance (6).
In the case of an eldest son, though the importance of him to his
family of birth is so strongly insisted in the earlier authorities, yet
more recent writers have in some instances pronounced the gift
effectual, though censurable (c). After such a gift there is still a
son left to perform the father's obsequies, and no one supposes that
if an eldest son dies a second son is not perfectly competent to take
his place. Why not then when the eldest is removed from the
family by gift? This may not be a satisfactory answer to an un-
qualified prohibition exacting obedience apart from the reasons
that may be assigned for it, but it may have influenced the Sastris
in forming the opinion now and then expressed (d), that the gift of
an eldest son out of several is not invalid. The giving, it is said, in
such instances is prohibited, but not the taking (e). In Bombay it
has recently been decided that such a transaction is legally
valid (/).
As in the absence of a son by birth an adopted son takes his
place in relation to the adoptive father (g), the same principle
which prevents the adoption of a son while a begotten son exists (h)
(h) See above, pp. 65, 676; Dayabhaga, Chap. I., para. 37. It is pronounced
a sin for a younger brother to precede the elder in offering a Srauta sacrifice
or in marrying, Baudh., Pr. IV., Adh. 6., para. 7.
(c) Vyav. May., Chap. IV., sec. V., paras. 4, 5 ; 2 Str. H. L. 105. It is not
opposed to Hindu notions that a man should benefit spiritually by moving
another to an act which in him is sinful. See ex gr. Baudh,, Pr. IV., Adh. 8,
para. 10 and note; Mit., Chap. I., sec. XI., para. 10; Vyav. May., Chap. IV.,
sec. v., paras. 13, 14.
(d) MS. 1612, 1621. So Janokee Dehea v. Gopaul Acharjea, I. L. K. 2 CaL
365. See 2 Str. H. L. 105.
(e) MSS. 1682, 1684.
(/) Kashihai v. Tatia, Bom. H. C. P. J. 1883, p. 40; S. C. I. L.R. 7 Bom. 225.
So Ahaji Dinkar v. Gangadhar Vasudev, 3 Morris, 420.
ig) Steele, L. C. 47 ; 2 Str. H. L. 218.
Under the Roman Law the adoptive father could give his adopted son in
adoption to another. (Gains, I. 105.) This was by the earlier law. Justinian
deprived an adoption of any one but a descendant of most of its legal effects,
especially subjection to the patria potestas, so that an adopted son could not
be given away again, nor was it worth while to give him away seeing that the
adoptive father was under no particular obligation to him. In the case of sons
taken by " arrogation " many safeguards were enacted to prevent their being
defrauded by the adoptive fathers. (See Maynz, op. cit., § 328 ad fin.) The
latter was obliged to leave to his adopted son at least one-fourth of his estate.
(h) Joy Chundra Raee v. Bhyruh Chundra Raee, M. S. D. A. R. for 1849„
p. 461.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 821
equally forbids the adoption of a second while a first adopted son is
living (i). In the important case of Rangamma v. Atchamma (k)
the Sastris of the Provincial Courts of Madras pronounced in favour
of multiple adoptions. They relied on a passage quoted by Jagan-
natha to the effect that many eons are to be desired, as the father
will get the benefit of the religious acts performed by any one of
them, and maintained that several adoptions were as laudable as
the procreation of several sons. They are supported no doubt by
some of the treatises on adoption which take the passage in this
sense (I), but Jagannatha appears to limit its meaning to the allow-
ance of taking in adoption sons of the various descriptions — that is,
by the several modes of substitution or such as would spring from
wives of the different castes (m). This cannot be regarded as more
than a speculative licence, seeing that a marriage out of a man's
own caste, or a substitution otherwise than by adoption, is no
longer permitted (n), but Sir T. Strange sets forth a double adop-
tion as valid (o). The doctrine, however, is entirely opposed to the
Dattaka Mimamsa, which allows only the sonless man to adopt (p).
In Bengal the passage as to several sons had already been limited
t-o sons by birth (q), though a second adoption was under peculiar
circumstances, and perhaps wrongly, upheld. Sutherland pro-
nounced strongly against the attempted extension of it (r), and a
similar opinion was expressed by Sir W. Macnaghten (s).
(t) Nursing v. Khooshal, 1 Borr. 88; Lakshmappa v. Ramava, 12 Bom.
H. C. K. 364; H. H. Wilson, Works, vol. V., p. 67; Gopee Lall v. Musst. Sree
Chundraolee Buhoojee, L. E. I. A. Supp. 131; Mohesh Narain v. Taruk Nath,
L. E. 20 I. A. 30.
The Athenian laws had such care for the adopted son that they did not allow
an unmarried man who had adopted to marry without a special permission from
the Judges. (See Petit, Leges Atticae, p. 141.)
(k) 4 M. I. A. 1. See the discussion, 2 Str. H. L. 194.
(Z) It is taken from the Karma Purana, and being quoted by Hemadri is from
him copied by Kamalakara in the Nirnayasindhu.
(m) Col. Dig., Book V., T. 408, Comm.
(n) See, however, 4 M. I. A., at pp. 95, 96.
(o) 1 Str. H. L. 78.
(p) Datt. Mim., sec. 1, paras. 3, 6. So also Datt. Chand., sec. 1, para. 3.
iq) Gouree Prasad Raee v. Joijmala, 2 C. S. D. A. E. 136, in 4 M. I. A.,
at p. 67.
(r) 2 Str. H. L. 85.
(s) P. & P. H. L., vol. I., p. 80. A simultaneous adoption of two sons is
not effectual as to either, Gyanendro Chunder Lahiri v. Kalla Pahar Haji,
I. L. E. 9 Cal. 50, referring to Sidessurry Dossee v. Doorga Churn Sett, 2 In.
Jur. N. S. 22 ; see Ihid. 24.
k
822 HINDU LAW. [BOOK III.
The Judicial Committee on a consideration of the authorities
determined, in the case just referred to, that a second adoption
during the subsistence of the first was not to be allowed {t). This
decision, which has recently been reaffirmed (v), agrees with the
customary law of Bombay (w); and the existence of a son's son
equally with that of a son makes adoption impossible (x), as in the
absence of a son his son represents him both in rights and in
religious duties towards the family (y). In Surendra Keshav Roy v.
Doorgasundari Dassee (z) the Judicial Committee has recently held
that it is settled law that a Hindu simultaneous adoption is
invalid.
The purpose of adoption being such as we have seen, it would
seem that consistency with the theory of the institution should
have prevented an unmarried man from adopting a eon (a). Such a
man can but seldom be able to say that he cannot have a begotte'i
»on (b), and at any rate he is bound to marry (c). The Dattaka
Mimamsa and Chandrika do not contemplate adoption by a
bachelor, nor in the rule laid down in the Vyavahara Mayukha (d)
is there the express provision in favour of a bachelor's capacity that
might have been expected, had there been an intention to recog-
nize his right to adopt. Jagannatha, however, {e) says there is no
law forbidding adoption by an unmarried man, and Sutherland (/)
thinks such an adoption ought to be admitted. The Sastris have
in one or two instances said that a bachelor can adopt (g), and the
(t) Rangama v. Atchama, 4 M. I. A., at p. 102; Gopee Lall v. Musst. Sree
Ghundraolee Buhoojee, L. R. I. A. Supp. 131; Mohesh Narain v. Taruk Nath,
L. R. 20 I. A. 30.
(v) Gopee Lai v. Musst. Sree Ghundraolee Buhoojee, L. R. S. I. A. 131.
(w) Steele, L. C. 42, 45, 183, 387.
(x) Steele, L. C. 42.
iy) In Virhuddra v. Baee Ranee, 2 Morr. 1, the question arose of whether
an adopted son could renounce his adoption and return to his family of birth.
The Sastri, relying on Manu IX. 142, said he could not, but that he could
resign his rights in the family of adoption on which the adoptive mother became
free, with the consent of the near relatives, to adopt another son in his place.
(z) L. R. 19 I. A. 108.
(a) See Steele, L. C. 43.
(b) See Steele, L. C. 182.
(c) Ibid. 25; above, p. 790.
(d) Chap. IV., sec. V., para. 36.
(e) Col. Dig., Book V., T. 273, Comra.
(/) Note iv.
(g) MS. 1670.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 823
Sdr Court of Bombay upheld a similar rule as a local usage (h). In
Madras the question of a widow's capacity to adopt without trying
the effect of remarriage has twice been resolved in the affirma-
tive (i). In the latter of the two cases an opinion was expressed in
favour of the validity of adoption by a bachelor, but this was extra-
judicial, and rested entirely on the authorities already discussed.
It has been held by the Bombay High Court that a bachelor (k)
can make a valid adoption. So can a widower (1) or a minor (w),
or a childless Hindu (n), although at the time of adoption his wife
may be pregnant. In no case the possibility that a son may
afterwards be born invalidates the adoption.
It seems probable that adoption in the full sense has been but
recently introduced amongst most of the lower castes (o) — recently,
that is, in comparison with the establishment amongst the twice-
born (p). It is the Brahmana, not the man of inferior race, who is
born with the triple debt to the gods, the manes, and the rishis (q).
The Vedic study due to the last is forbidden to the Sudra (r). The
religious ceremonies, the celebration of which is the first duty of a
Brahman's son, do not exist for the Sudras, and Vachaspati con-
tended that a Sudra could not affiliate because he could not offer
the requisite sacrifice and prayers. The Datt. Mim. refutes this by
reference to a text of Saunaka (s), which distinctly recognizes the
adoption of a Sudra by a Sudra with liberty to take a daughter's or
a sister's son — a liberty which the Vyav. May. makes a duty when
such a son is available (t). The authority (Parasara) relied on by
(/i) Gunnappa v. Sankappa Deshpande, Sel. Kep. 202 (2nd ed. 229). See
Steele, L. C. 182, which states a contrary rule for the Southern Maratha
Country.
(t) Nagappa v. Suhba Sastri, 2 Mad. H. C. R. 367 ; N. Chandrashekarudu v.
N. Brahmanna, 4 Mad. H. C. R. 270.
(k) Gopal V. Narayan, I. L. R. 12 Bom. 329.
(Z) Nagappa v. Suhba , supra.
(m) Jamoona Dassya Chowdhrani v. Bamasoonderai Dassya, L. R.
3 I. A. 72; Rajendro v. Saroda, 16 W. R. 548.
(n) Hanmant Ramchandra v. Bhimacharya, I. L. R. 12 Bom. 105.
(o) As to the gradual extension of the Aryan influence, see Whitney's Or.
and Ling. Studies, 2nd Series, p. 7.
(p) Vasish, II., pp. 1 — 4.
(g) Vasish. XI. 48; Phil, of the Upanishads, Chap. IV.
(r) Vasish, XV. 11; XVIII. 12-14; Baudh., Pr. I., Adh. 11, para. 15;
Adh. 10, para. 5; Manu II. 115, 116, 173; IV. 81; Apast., Pr. I., Khand. 1,
para. 5.
(5) Datt. Mim., sec. I. 26; sec. II. 74.
(t) Vyav. May., Chap. IV., sec. V., para. 11.
824 HINDU LAW. [BOOK III.
Nilkantha says that the requisite sacrifice may be offered by a
Brahmana on behalf of the Sudra, and is effectual for the latter,
though a sin in the former. Adoptions by women are made
effectual by similar vicarious celebrations of the ceremonies (v).
In a passage at 2 Str. H. L., p. 89, Ellis refers to a Dattaka
Mimamsa of the Madhaviya in which it is said there is no adoption
for a Sudras (w). The ceremonial adoption cannot, he shows, be
properly performed by Sudras (x) who are incapable of celebrating
the fire sacrifice (Datta-homam) with the requisite Vedic texts (y).
But the Sudra having no gotra, the transfer of a boy of that caste
from one to another gotra cannot take place, and this transfer it is
the purpose of the Datta-homam to effect. He concludes, not that
an adoption is impossible, but that the ceremonies necessary in the
case of one of the twice-born may be dispensed with and replaced
by public acknowledgment.
The Maithila doctrine seems to disallow adoption by a Sudra
on the ground of his incapacity to offer the Homa sacrifice and
recite the sacred formulas (z). The Datt. Mim. (a) refutes this by
reference to the text of Saunaka; and Ellis, loc. cit., says that a
public avowal amongst Sudras takes the place of the ceremonial
prescribed for the other castes. Thus amongst Sudras a formal gift
and acceptance are sufficient, and may be established by inference.
The Datt. Mim., sec. I., 27, says that the express ascription of the
power of adoption to Sudras and to women who cannot pronounce
the formulas necessarily implies that these may in their case be
dispensed with, contrary to the Vivada Chintamani (b), and a
Sastri said that a Gosavi of the Sudra class could adopt but should
omit the Vedic formulas (c).
In Bengal it was at one time held (d) that even amongst the
Sudras the ceremonies of adoption could not be dispensed with.
The services of a Brahman it was said were to be obtained to do
(v) Vyav. May., Chap. IV., sec. V., paras. 12-15; Steele, L. C. 46.
(w) Comp. Gaut., Chap. IV. 25—27.
(x) See the extracts from the Sudra Kamalakara and from Vyasa at p. 433
of Eao Saheb V. N. Mandlik's Vyav. May.
iy) See 2 Str. H. L. 218.
(z) 2 Str. H. L. 131. See also the Vyav. May., Chap. IV.. sec. V.,
paras. 12, 13.
(a) Sec. I. 26; sec. II. 74.
(h) Transl., p. 88.
(c) MS. 1678.
(d) Bhyruhnath Tye v. Mohesh Chunder Bhadooree, 13 C. W. E. 168.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 826
what the Sudras themselves could not do towards the completion
of the sacrifices (e). But on a further consideration of the matter a
Full Bench, upheld on appeal by the Privy Council, determined (/)
that no ceremonies were essential except the giving and taking of
the child. It is certain that Sudras cannot recite the prescribed
mantras (g) ; the question really was whether their incapacity in
this and other respects did not exclude them altogether from the
institution (h). This has been resolved in favour of their com-
petence (i). The purposes of adoption have been widened bo as to
embrace objects in which the Sudra is interested equally with the
Brahman, and besides the kriya and the sraddhas the Samskara
Kaustubha insists on the necessity of preserving the renown of a
deceased by alms, by feasts to Brahmans, and by pilgrimages (fe).
A son too must assist his father in old age (I). These duties a
Sudra 's adopted son can perfectly well perform, and it is easy to
understand how, as they are conspicuous, they should with many
come to appear the most important. The desire to imitate the
higher castes (m) has been gratified, and the impossibility of satis-
fying the ceremonial conditions has led to their sometimes being
dispensed with (n), or regarded as not essential (o), not only in the
case of Sudras but of the higher castes (p). Where there has been
(e) So 2 Str. H. L. 130.
(/) Beharee Lall Mullick v. Indur Mohinee Chowdhrain, 21 C. W. E. 286;
S. C. L. R. 7 I. A. 24; S. C. I. L. R. 6 Cal. 776, P.O.
(g) Steele, L. C. 46.
(h) Vyav. May., Chap. IV., sec. I., para. 14.
(t) Ellis at 2 Str. H. L. 149, points out that the " twice-born " really means
in the present age the Brahmans, and the Sastris in some of their replies say
that the Kshatriyas and Vaisyas have disappeared as distinct castes. The
application of the law of adoption thus restricted would be of comparatively
very small extent.
(k) Steele, L. C. 42.
(I) Ibid. 181.
(m) See above, p. 403.
(n) Manu regarded the sraddhas apparently as not competent to Sudras,
Manu IV. 223; but this need not prevent a laukika adoption, i.e. one for
mundane purposes, unless the latter are to be deemed purely incidental. The
customary law approves and requires the celebration of the sraddhas by nearly
all castes, as may be seen by reference to Steele's L. C. 27, 42, 181, 380.
(o) See Ellis in 2 Str. H. L. 131.
(p) See Col. Dig., Book V., T. 273 Comm. The Sastris usually insist on the
regular ceremonies as indispensable, but they do not define which was essential.
See Steele, L. C. 184, and the section below on the Method of Adoption. The
castes annul irregular adoptions, Steele, L. C. 388. The Hindu authorities
826 HINDU LAW. [book III.
a formal giving and acceptance the adoption is, for all classes in
Bombay as in Madras, to be regarded as complete (g), as the
generally regard a boy defectively adopted as a das or slave of the highest class ;
see below, "Consequences of Adoption." Tilak v. Tai Maharaj, L. E. 42
I. A. 135.
(g) Steele, L. C. 184. See V. Singamma v. Vinjamuri Venkatacharlu,
4 Mad. H. C. R. 165. In Kenchava v. Ningappa, S. A. 646 of 1866, 10 Bom.
H. C. R. 265, the parties were not Brahmans but apparently Lingayats. Jagan-
natha in Col. Dig., Book V., T. 273 Comm., dwells at great length, if not with
invincible logic, on the oblation to fire as being not essential. In Crastnarav
V. Raghunath, Perry 0. C. 150, the safe opinion is expressed that where the
essential ceremonies have been performed the omission of unessential ones does
not invalidate an adoption. Colebrooke more definitely pronounces the sacrifice
not essential, 2 Str. H. L. 126, 131. Chiman Lai v. Ramchandra, I. L. R.
24 Bom. 473; Tilak v. Tai Maharaj, L. R. 42 I. A. 135; Valuhai v. Govind,
I. L. R. 24 Bom. 218; Govindayyar v. Dorasami, I. L. R. 11 Mad. 5; Ran-
ganayakammav v. Alwar Setti, I. L. R. 17 Mad. 219 ; Atma Ram v. Madho
Rao, I. L. R. 6 All. 276, the case relates to the Dakhai Brahman.
In Sree Narain Mitter v. Sreemuthy Kishen Soondory Dassee, L. R. S. I. A.
157, the Judicial Committee say : " The most important issue in the cause was
whether there was a formal gift of the child . . . whether there was an actual
delivery of the child in addition to the execution of the deeds." That was a
Bengal case, but the parties were Sudras; the decision is conclusive of the
sufficiency of actual giving and receiving to constitute adoption in that caste
in every province. Corporeal gift and acceptance are again pronounced neces-
sary and sufficient in Mahashoya Shosinath Ghose v. Srimati Soondari Dasi,
L. R. 7 I. A. 250. In Bhagvandas v. Rajmal, 10 Bom. H. C. R. 241, Sir
M. Westropp, C. J., after pronouncing Jains subject generally to the Hindu law
of inheritance, discusses an alleged adoption by gift to a man and his wife
deceased. This his Lordship held to be impossible, but from what is said in the
course of the judgment (see p. 257), it may be gathered that a gift accepted
by the adoptive parents would have been thought enough.
Lakshman v. Malu, Bom. H. C. P. J. 1875, p. 186, was apparently a case
between Marathas, and there it was decided that there must be strict proof of
the gift as well as of the acceptance.
These last two cases, though they point to the general sufficiency of a gift
accepted, in so far as they do not dwell on any distinction of caste, yet do not
precisely establish the validity of an adoption amongst Brahmanas without the
prescribed religious ceremonies. The Sastris generally insist on these as
indispensable, but in one case at least, that of Jagannatha v. Radhahai, S. A.
165 of 1865, it seems to have been held by the High Court of Bombay that no
particular religious ceremony is absolutely necessary even in the case of
Brahmans. It will be seen that there is hardly authority for laying down a
proposition as to this caste with perfect confidence. The ceremonies are by
all Brahmans thought important, and in practice the omission of them would
throw such suspicion on an alleged adoption as to impair very seriously the
proof of an alleged giving and taking with the requisite expression of intent.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 827
performance of the ceremony of the Datta-homam may be
delegated to a priest or a relation (r).
The custom in some castes, as Jains and Talabda Kolis, of
adoption without regard to the spiritual benefits to be obtained
through the adopted son, forms a point of transition to a custom in
other castes by which adoption is not recognized at all, or only
under certain circumstances (s), and with incidents different from
those of ordinary adoption. The mere " celebrity of the name " (f)
of the adoptive father hardly affords a sufficient basis in the
absence of the intimate spiritual connection for so important a
part of the family law as adoption, and the lower castes have in
many instances proceeded but a short way in their imitation of
the Brahmanical institution. It seems probable, indeed, that such
adoption as they recognize is of independent natural growth, and
giving effect merely to an instinctive craving, stands on a principle
quite apart from the adoption commanded by religion and primarily
serving religious purposes. In the continued associations of the
lower orders with the Brahmans their ideas on this as on other
subjects have been coloured, sometimes quite changed, but in
other cases they remain in substance what they have been from
the first. Regarding such classes as dissenters from orthodox
Hinduism, the recognition of their own customs as binding on
themselves is still consistent with the Hindu Law (v).
It will have been noticed that in several cases in the earlier parts
of this work rights were set up by men claiming as palaka-putras,
or foster sons of one deceased. A similar instance occurs in
(t) Lakshmibai v. Ramchandra, I. L. K. 22 Bom. 590; Suhha v. Suhha,
I. L. R. 21 Mad. 497 ; VadavalU v. Mangamma, I. L. R. 27 Mad. 538, 539.
(s) In one case a thakur (a Rajput Raja) seeking to exclude from succession
his half-brother (elder) and his brother (younger), devised his estate (called a
raj) to his daughter-in-law. The Sastri pronounced this valid, and he said that
the daughter-in-law could not adopt while the brothers of her deceased husband
survived ; MS. 281. This must have been an instance in which a son of an
elder wife had taken precedence of an elder son by a junior wife, a modification
accepted in some families of the rule favouring mere seniority of birth, see
above, pp. 65, 74; Steele, L. C. 40, 60, 63, 178, 229. It is plain that the male
kinsmen were opposed to the adoption, and that being so the case must probably
be reduced to one in which a widow could not adopt for want of the requisite
assent of the kinsmen, see Colebrooke in 2 Str. H. L. 92; Mit., Chap. I.,
sec. XI., para. 9, note. It does not appear that in the class in question the mere
existence of male heirs makes adoption legally impossible.
(t) Datt. Mim., sec. I. 9.
(«) Above, p. 558.
828 HINDU LAW. [BOOK III.
Bhagvan v. Kala Shankar (w), and it seems likely that the case
at 2 Str. H. L. 113 was one of the same kind (x). These instances
point to a custom pretty widely prevalent amongst the lower castes
by which a sonless householder assumed the guardianship of a boy,
and either forthwith or afterwards declared him his heir, whereby
without further ceremony ho was vested with the rights of a son
subject to partial defeasance only on the birth of a begotten
son (y).
The replies of many castes in Gujarath to Borradaile's enquiries
show that the foster son was as well recognized amongst them as
the son by regular adoption. In many cases adoption was not at
all practised (z), in some no foster son was taken. Especially
where the remarriage of a widow was allowed it was said that no
adoption or fostering by her was possible. " Yet," it was
answered, " if the Sastras allow adoption we cannot presume to
(w) I. L. E. 1 Bom. 6a.
(x) See also Sp. App., No. 74 of 1861, M. S. D. A. D. for 1862, p. 62, referred
to in V. Singamma v. Vinjamuri, 4 Mad. H. C. B. 166.
(y) Steele, L. C. 184. The Palaka-Kanya amongst the dancers was an
imitation which implied the pretty wide prevalence of the institution copied.
See Steele, L. C. 186. In one case the Sastri said a foster son of a temple
dancer was her heir to an allowance from the temple estate. A foster-son, he
said, may be heir by custom, MS. 1707, though according to the case above,
Q. 4, p. 339, he can ordinarily take even by gift from the foster-father only so
much as may be becoming and usual where there is a real son.
The adoption of a person sui juris under the earlier Eoman Law was a very
solemn proceeding, to which effect could be given only by a decree of the people
in the Centuria Curiata. (See Poste's Gaius, I. 107, Comm.) It was preceded
by an enquiry and declaration of the Pontiffs that there was no religious
objection, and being formally voted by the assembly after formal public ques-
tioning of the parties, was hence called " Arrogatio.'" (See Gaius I. 99.) It
was accompanied by a formal renunciation of the sacra of the family of birth.
These formalities were gradually disused, and at length adoption and arrogation
were allowed by will as a mere means of constituting an heir who would
preserve the testator's name. The adopted son retained his place in his family
of birth while he acquired in that of his adoption merely a right of intestate
succession to his adoptive father (Maynz, Dr., Eom. § 328). His position was
thus very like that of the palaka-putra amongst many Indian castes.
(z) Thus adoption is not recognized amongst the Kumbhars at Surat (Borr.
MSS. G. Koombhar 10). In some castes, as the Bhatele, the Sastri said
adoption is not allowed while there is a male kinsman surviving, MS. 406
The non-recognition of adoption was found to prevail amongst some of the
Dekhan castes also, see Steele, Li. C. 181, 381. This might be regarded as a
survival of the objection to giving or taking a son recorded by Apast., Pr. II.,
Khand. 13, para. 11; but the classes who reject adoption are probably for the
most part non-Aryan in origin.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 829
set them at naught " (a). This indicates how adoption of the
Brahmanical type has gradually superseded the looser tie of mere
fosterage (b). The latter had the advantage that the foster son
did not lose his right of inheritance in his family of birth, and that
it fitted the needs and habits of castes to whom the elaborate
system of adoption could not be adapted without violent distortions
of the institution itself and of the customs amongst which it was
introduced (c). The foster son, however, has always been frowned
on by the Sastris (d). He has failed to get recognition from the
Courts (e), and the member of a lower caste who now desires to
benefit a nephew or the son of a friend has to adopt him in order to
give him rights which will avail after the adoptive father's
death (/). The iron tie thus forged often becomes irksome to one
(a) Hujjam Kahnoomiya, Book F., p. 130. In the case of fifty-six castes at
Poona it was said that ancient usage established by evidence and a vote of
the caste constituted the law. But in cases of unusual difficulty Brahmans were
called in and a decision made according to the Dharmasastra. It is obvious
that as transactions and affairs grow more complicated this must give to the
Sastras a continually widening influence as law. It is not thought necessary
to conform to the Sastra in every particular, but submission to it is considered
as at least proper and desirable. See Steele, L. C. 122, 126. A Sastri said that
the different opinions held on the subject of adoption ought to be applied to
any case according as they agree with the custom of the community, and in
the case of a Brahman with the doctrines of the Shakha to which he belongs,
MS. 405.
(h) The manasaputra in Abhachari v. Ramchandrayya, 1 Mad. H. C. K. 393,
was probably taken with an idea derived from a similar kind of fosterage at one
time recognized in Madras. The Pandits said that the manasaputra was not
known to the Hindu Law, but the High Court held the quasi-i&ther bound by
the deed of general donation in favour of the manasaputra.
(c) Many classes called Ati-Sudras rank below the recognized Sudras them-
selves, who have been brought fairly within the Brahmanical system.
(d) A man having purchased or otherwise obtained a boy, brought him up
as a foster-son, and bequeathed part of his property to him. The Sastri upheld
the bequest, but held that the legatee's title did not extend any further as
against the blood relatives of the testator, as there had not been a formal
adoption, MS. 122.
In another case it was said that nephews, though separated, inherit before
a mere foster-son, MS. 119.
(e) See Nilmadhab Das v. Biswambar Das, 3 B. L. E. 27, 32 P. C.
if) An intermediate case in which the Brahmanical law of adoption has been
partially accepted is that of the Talabda Kolis of Surat. The son is not taken
for the same spiritual purposes as in the higher castes. His adoptive or foster
father is to dispose of his property ; but failing such disposition the foster son
succeeds, and his rights in his family of birth are extinguished. Meanwhile
830 HINDU LAW. [book HI.
or both pairties, but the easier connection has been so discredited
that it cannot apparently be restored except by an act of the
Legislature.
The adopted son, according to Manu's rule (Chap. IX. 168, 169),
must be " sadrieam " ( = adequate, alike). This Medhatithi in
his commentary explained as meaning of appropriate family and
character (g). But Yajnavalkya (Book II. v. 133) says the
adopted or other subsidiary son must be of equal class with the
father, and resting on this, Nilakantha adopts Kulluka's interpre-
tation of Manu to the same effect. It was a natural process, as
marriage of a wife of lower caete became unlawful (h), that
adoption should be similarly restricted. It was part of the
imitation of nature which has influenced the whole institution
that when a Kshatriya son of a Brahman became impossible, or
one of intermediate caste, the adoption of such a eon should
become impossible also. The different construction given to the
text of Manu under these different circumstances is a good
instance of a process to which the smritis have frequently been
subjected in adapting their precepts to the needs of the age.
A boy bestowed in adoption is usually given before the
tonsure (i), which amongst the twice-born takes place at three,
he does not take his adoptive father's name as a true adopted son should do.
These particulars are gathered from the papers in Sp. App., No. 64 of 1874.
The influence of imitation and a desire to rank higher in the social and
religious scale, strong as it is, has done less in late years towards the assmila-
tion of the lower classes to the Brahmanical pattern than the action of the
Courts. The law of the Dharmasastra being taken as the common law of the
Hindus, exact proof has been required of deviations from it, and on such proof
failing through the ignorance or misapprehension of those concerned, one rule
after another of the Brahmanical Code has been established as the law of the
lower castes. Bold generalizations, too, have been ventured on, which by
ignoring the distinctions of caste tend to uniformity at the cost of usage. A
good instance of this is the broad statement in Pandaya Telaver v. Puli Telaver,
1 Mad. H. C. E. 478, that connubium subsists amongst the sub-divisions of each
of the four historical castes. This is manifestly incorrect, as shown above,
p. 709, however desirable it may be to get rid of restrictions on the choice of a
wife.
(g) See Col. Dig., Book V., T. 285, Comm. So under the Eoman Law an
adrogatio was allowed only after an inquiry " qua causa ... sit adoptionis
quae ratio generum ac dignitatis, quae sacrorum." Cic. Pro. Domo. XIII. 34;
see Aul. Gell. V. 19; Willems, Dr. P., Rom., p. 84.
(h) Col. Dig., Book V., T. 173.
(i) As to the second birth of initiation see Vishnu XXVIII. 37 — 40 ;
XXX. 44; Vasishtha XI. 49—61; II. 3; Baudh., Pr. I., Adh. 2, Kand. 3, 6, 12;
Gaut. Chap. I., paras. 6 — 14; Manu II. 35, 36. The difference in status arising
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 8&1
four, or five years of age {k). The general opinion of Hindu
lawyers is against the validity of an adoption after this ceremony
into any other gotra than that of birth (1) and of dedication of the
boy (w). Within the same gotra, using the same invocations, an
adoption at a later age is deemed permissible (n). Amongst the
lower castes the limitations resting on gotra relations in the
stricter sense have no place (o). In these cases, as marriage is
the only initiatory rite giving an advanced status to the Sudra (p),
some lawyers would pronounce married men unfit for adoption (q).
This opinion has not been generally accepted (r). Men of all
ages up to fifty have been adopted when no change of gotra (s)
was involved. Even this change has been held not to be an
obstacle (t), as the tonsure and even investiture may be annulled
(v), but it may be doubted whether this licence ought to be
from the performance of the earlier Samskaras is indicated by the funeral
ceremonies and the ceremonial impurity provided for in Manu V. 67 ss.
(k) Steele, L. C. 43; Col. Dig., Book V., T. 182, 183, Comm. The genuine-
ness of the text is doubted by Nilkantha, Vyav. May., Chap. IV., sec. V.,
para. 20, and some others.
(I) P. Venkate^aiya v. M. Venkata Chatlu, 3 Mad. H. C. E. 28; 2 Str. H. L.
104, 109.
(m) Col. Dig., loc. cit. See the Smritis quoted above as to initiation. The
Sudras are expressly excluded from it and from Vedic study, Apast., Pr. I.,
Pat. I., Khand. 1, paras. 5, 8, 20, 21.
(n) Vyav. May., Chap. IV., sec. V., para. 19; Steele, L. C. 44. Sri
Brijhookunjee Maharaj v, S. G. Maharaj, 1 Borr. E. 202.
Under the Eoman Law an adoption could not be attended with a " term "
postponing its operation or with a condition making its existence insecure.
(Maynz, Dr., Eom. § 328; above, p. 187.)
(o) Such relations as are contemplated in Vishnu XXII. 21 — 24 cannot now
be found. Qwasi-gotra, i.e. blood relationships, are recognized amongst the
lower castes, though not to the same distance of connection as amongst the
Brahmans.
(p) Col. Dig., Book v., T. 122; Eao Saheb V. N. Mandlik's Vyav. May.,
p. 431. As to women, Vishnu XXII. 32. Various ages are prescribed by caste
custom, Steele, L. C. 182.
iq) 2 Str. H. L. 87; Steele, L. C. 44, 383, 384.
(r) Raje Vyankatrao v. Jayavantrao Ranadive, 4 Bom. H. C. E. 191 A. C. J. ;
Nathaji Krishnaji v. Hari Jagoji, 8 Bom. H. C. E. 67 A. C. J. See Steele,
L. C. 384; Dharma Ragu v. Ramkrishna , 1. L. E. 10 Bom. 80. Among Jains
a married man may be adopted, Asharfi v. Rup, I. L. E. 30 All. 197.
(s) Steele, L. C. 43. Within the same gotra no ceremonies other than gift
and acceptance are essential. Steele, L. C. 46. Comp. Col. Dig., Book V.,
T. 276, Comm.
(t) Datt. Chand., sec. II. 26 ss.
(v) Datt. Mim., sec. IV., 60—52.
832 HINDU LAW. [book III.
recognized in Bombay (w). The Sastris are generally opposed to
it : the High Court seems in one case to have looked on it with
favour (x), but the case was one between Sudras, in whose case
there could be no initiation by tonsure and investiture to undo (y).
In the case even of an adult the giving by his father or mother
cannot be dispensed with {z). The adopted son's own assent is
equally necessary when he has reached years of intelligence (a).
(w) See Balvantrav v. Bayabai, 6 Bom. H. C. K., at p. 85.
(x) Lakshmappa v. Ramava, 12 Bom. H. C. E. 364, 371.
(y) There is no Sraddha even, in the proper sense, for a Sudra. It involves
ceremonies which the Sudra cannot perform. See above, pp. 790, 823.
{z) Bashetiappa v. Shivalingappa, 10 Bom. H. C. R., at p. 271; Collector of
Sural V. Dhirsingji Vaghbaji, ibid. 235; Subbaluvammal v. Ammakutti Ammal,
2 M. H. C. R. 129; Balvantrav v. Bayabai, 6 Bom. H. C. R. 83 0. C. J. The
formula pronounced by the giver is appropriate only to the father, see 2 Str.
H. L. 218. Hence, as the cases decide, an orphan cannot be given by his
brother. In Steele, L. C, p. 46, it is incidentally noticed that an elder may
adopt a younger brother. This may have been established in some castes by
custom, but instances of the custom have not occurred in the superior Courts,
or have been so rare as to escape particular observation. It is opposed to the
generally received principle of a possibility of union between the real mother
and the adoptive father, but this principle is not regarded amongst Sudras.
A woman (widow) cannot adopt until she attains puberty and therefore could
be a mother. Steele, L. C. 48. A man ought not to adopt prematurely.
Ibid. 43.
Under the Roman Law the imitation of nature was held to prevent the
adoption of any one who was not at least eighteen years younger than the
adoptive father (Maynz, Dr., Rom. § 328). In case of arrogation of one mi
juris the adoptive father was required to be sixty years of age. Fifty is the
age prescribed in the French and the Italian Codes.
Gains says it was still disputed in his time whether any one could adopt a
person senior to himself ; but this was afterwards settled so as to require a
seniority of eighteen years in the adoptive father. (Poste's Gains, I. 106, 107,
and Comm.)
(a) Col. Dig., Book V., T. 275, Comm.
Under the Roman Law of the XII. Tables a father could transfer his child by
manicipation (see Cod. Li. VIII. Ti. 48 1. x.), which in the case of a son given
in adoption had to be performed thrice (Maynz, Dr., Rom. § 326), though for
a noxoe datio, in which a son was given up to escape damages incurred on his
account, a single ceremony was sufficient. Justinian replaced this ceremony by
a declaration made before a public officer {op. cit. 328). In the case of a boy
sui juris his " arrogation " or gift of himself had to be preceded by an enquiry
whether this would be advantageous to him. (Gains I. 102.) His express
assent was required (Gains, I. 99) as well as that of his guardian if he had
one. An ordinary adoption could not be made against the consent of the boy
adopted, but in the absence of protest the gift of his father or other person
exercising the patria potestas was sufficient, and at the same time indispensable.
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 833-
The son, though a man's own, is not a chattel to be given away
without his own consent (6), and the rule of Baudhayana (c) which
exacts this in the case of a Kritrima adoption is equally applicable
to any case where the person adopted is old enough to have a will
and judgment of his own (d). While he has no discrimination his
father may part with him, but only, according to the religious
law, under the pressure of some great exigency (e). Parents are
to bestow their son with anxious care (/) on one to whom he has
an affectionate feeling (g).
Jagannatha, relying on the fact that the Smriti texts speak
only of the adoption of sons {h) denies altogether that a daughter
can be adopted. The Datt. Mimamsa, sec. VII., has an elaborate
argument to establish that an adoption of a daughter may be
admitted by analogy to that of a son. The argument would have
been needless had the sacred writings afforded any direct authority
for Nanda Pandita's position. He supports it by several instances
drawn from the Puranas, but whatever weight may be due to
these they have not led to any general imitation which would
constitute a custom. "When we consider the main purpose and the
history of adoption it is plain that the admission of a daughter
within the scheme would be quite anomalous. Even the appointed
daughter taking in her own person the place of a son was centuries
ago found incongruous with the general Hindu system, and no
local law seems to have preserved or invented such an exaggeration
of a discarded rule as would be involved in recognizing a substitu-
tionary daughter bound as a daughter to leave the family by
marriage.
An " arrogation " was under the later law completed by a rescript under a
petition to the Emperor. (Maynz, Dr., Rom. § 328.)
(h) Vyav. May., Chap. IV., sec. I., paras. 12, 13; Datt. Mim., sec. IV. 47.
(c) Col. Dig., Book V., T. 284.
(d) See Datt. Mim., sec. IV. 47; Balambhatta on Mit., Chap. I., sec. XI.,
para. 9.
(e) Mit., Chap. I., sec. XI., para. 10; Vyav. May., Chap. IV., sec. I.,
paras. 11, 12, 15; Chap. IX., para. 2.
(/) Vyav. May., Chap. IV., sec. V., para. 1.
ig) Manu IX. 168.
(h) Col. Dig., Book V., T. 420, Comm.
Women could not originally be adopted under the Roman Law, and it is
obvious that they could not serve the intended purpose of maintaining the
family sacra. But as this purpose was gradually superseded by considerations
of another kind, the adoption of daughters as well as of sons was allowed.
(Gains, I. 101.)
H.L. 53
834 HINDU LAW. [BOOK III.
It was said, indeed, that the adoption by a woman of a daughter
given by her mother might be recognized if conformable to the
caste rules (i), and there are no doubt several venerable legends
which state or imply the giving of daughters. On these a system
of female adoption might have been built, but it must have been
the embodiment of a theory essentially distinct from that which
has in fact prevailed in the law of adoption. The process must
be looked on as merely imitative, and having no other jural efficacy
than may be given to it by some special usage. It does not appear
that any caste rules in the Bombay Presidency allow such an
adoption, in the sense of giving a particular status to the adopted
daughter (k). In Gangabai v. Anant (I), a case under the Vyav.
May., it has been held that a Brahman cannot adopt a daughter
conferring on her the status of a real daughter.
The relation of a Guru and his disciple is said to be similar in
many respects to that of adoptive father and son (m). It is a
relation recognized by the Sastras, but the connections subsisting
amongst ascetics of the lower castes and their disciples are
governed entirely by the custom of the class or of the institution
to which they belong (n). Some gosavis buy boys to bring up as
(i) MS. 1681.
(fe) See 2 Str. H. L. 217. In the case of an adoption by a Kalavantin
(temple woman) the Sastri replied that no rules for such an adoption were to
be found in the Sastras, MS. 1651. In Steele's Law of Caste, adoptions by
dancing women are incidentally recognized as possible, p. 183. But the
adopted girl is called a palak-kanya (foster-daughter), p. 186, and the (so-called)
adoption may be annulled at the pleasure of the foster-mother, p. 185, while a
true adoption cannot be annulled, p. 184. It is therefore merely an imitative
institution which can be supported on the custom of the class only if the class
are as such capable of making binding rules for their members. This is denied
in the Naikin's Case (Mathura v. Esu N., I. L. E. 4 Bom. 545) as opposed to
public policy and to the general customary law of the Hindus as constituted by
present usage. The purchase of children by dancing women was once common.
Such children ranked as slaves, 2 Str. H. L. 225, 229. Ellis, at 2 Str. H. L.
128, says that women have no right to adopt even for the transmission of their
separate property. " No spiritual benefit," he says, " results to a woman from
adoption." But then sraddhas are performed by their sons, whether real or
adopted. The incapacity must be placed on other grounds, such as those stated
in the text.
The Eoman Law seems not to have allowed an arrogation of a female prior
to Justinian's legislation. Ort. Inst. § 140.
(l) I. L. E. 13 Bom. 690.
(m) Steele, L. C. 192, App. B., para. 12.
(n) 1 Str. H. L. 150; above, pp. 616 ss. ; Steele, L. C, App. B. A Sastri
replied in one case that all classes, gosavis included, can adopt with the due
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 836
their disciples and successors (o). More frequently they take
them by gifts as pupils and spiritual sons without the ceremonies
of adoption (p), the theory of which, indeed, is opposed to the
ranking of such boys as adopted sons. It is the grihastha or
householder (q) in the stage of life when he may properly attend
to worldly affairs who is bound to provide a son for the continuation
of the family (?•). A man retired from the world has no such duty.
The ascetic who renounces ordinary affairs (s) as a young man,
ought to do so effectually, and look to spiritual fatherhood (t) as
the only one open to him for the futinre (v). The relations of the
gosavi and his disciple differ widely, as has been seen, from those
of the ordinary father and son, and though some of the ceremonies
of adoption are imitated in taking a chela, the latter does not in
any practical sense become an adopted son (w).
The effect of adoption is to sever the boy adopted entirely from
his family of birth (x). His proper residence is with his adoptive
parents (y). He exchanges " the gotra " of his real father for
that of the adoptive father as a woman enters her husband's gotra
by marriage {z). He learns the sacred invocations in his family
of adoption, and in the absence of a son by birth completely takes
his place (a). His right of inheritance as the son of his real father
ceremonies. Gosavis, he said, must be considered Sudras, and in adopting
omit the recitations from the Vedas, MS. 1678.
(o) Colebrooke points out that the practice of gosavis and sannyasis in this
particular is analogous to adoption by purchase, which is itself obsolete, 2 Str.
H. L. 133.
(p) Op. cit., para. 26 ss.
(g) Vasishtha, VIII. 1, 11.
(r) Apast., Pr. 1., Pat. I., Khand. 1, para. 19. He escapes this duty if he
proceeds immediately from his studentship to a life of ascetic meditation. See
Phil, of the Upanishads, Chap. IV.
(s) Vasishtha, Chap. X.
(t) Apast., Pr. II., Pat. 9, Khand. 21, paras. 8, 10, 19.
(v) See Mit., Chap. II., sec. VIII., paras. 2, 8; 2 Str. H. L. 248.
(w) See Steele, L. C, App. B.
(x) Datt. Chand., sec. II. 32, IV. 1 ss. ; Vyav. May., Chap. IV., sec. V.,
para. 21; Steele, L. C. 47. An adoption once concluded is indefeasible.
Amongst Brahmans the homa sacrifice marks the completion of the ceremony.
Steele, L. C. 184. Sreenarain Mitter v. Kishen Soondery Dassee, 11 Beng.
L. E. 171, P. C. ; S. C. L. E. I. A. Supp. 149.
iy) Lakshmibai v. Shridhar Vasudeo Takle, I. L. E. 3 Bom. 1.
(z) Smr. Chand., Chap. X., paras. 13, 14.
(a) Vyav. May., Chap. IV., sec. V., para. 21. An adopted son fully repre-
sents his father in a partition of property after the father's death. Smr.
Chand., Chap. X., para. 18.
836 HINDU LAW. [BOOK III.
perishes (b), at the same time that he a<iquires the same right
as son of his adoptive father (c), and succeeds both lineally and
collaterally {d) though his adoption does not have a retrospective
effect (e). Yet in the latter capacity his right is so far defeasible
that the birth of a son reduces him to one-fourth of a share (/), as
compared with the full share taken by the begotten son (g) of the
same father. An adopted son of a coparcener is entitled on
partition to the same share as the natural son in competition with
a son of another coparcener (h).
According to most of the authorities (i) the severance of the
boy from his own family is effected according to the Hindu Law
by the requisite ceremonies, even though on account of a difference
of caste or some other insuperable obstacle he cannot be initiated
in the family of adoption (k). In such a case he is regarded like
a child uninitiated as being only of the rank of a dasa (slave) or a
sudra (I). He is entitled to maintenance, but does not inherit {m).
The caste customs are more liberal than the books to the boy
defectively adopted. Where an adoption has failed, either through
the unfitness of the persons or defect in the process, they simply
annul the relation supposed to have been constituted, with the
effect apparently of restoring the adopted son to his family of
birth (n). It might be supposed that in some cases difficult
(6) Steele, L. C. 186; Smr. Chand., Chap. X., paras. 14, 15.
(c) Vyav. May., Chap. IV., sec. V. 21—23; Steele, L. C. 47, 407.
(d) Kali Komul Mozoomdar v. Uma Shunkur, L. K. 10 I. A. 138; Pudma
Goomari Debt v. Court of Wards, L. R. 8 I. A. 229; Sumhhoo Chunder
Chowdhry v. Narain Dibeh, 3 Knapp, 65.
(e) Bhubaneswari Debt v. Nilkomal, L. R. 12 I. A. 137.
(/) Vasishtha XV. 9; Vyav. May., Chap. IV., sec. V., para. 26; Steele, L. C.
47. The proportions vary according to caste custom, ibid. 186, 387.
(g) See above, p. 347. The begotten son takes precedence, and where
primogeniture prevails is entitled to the advantages of the firstborn, Steele,
L. C. 186, 387.
(h) Nagindas Bhugwandas v. Bachoo Hurkissondas , L. R. 43 I. A. 66; S. C
I. L. R. 40 Bom. 270.
(t) Vyav. May., Chap. IV., sec. V., para. 16.
(k) Steele, L. C. 46.
(l) Baudh. I. Khand. 3, 6, 12; Col. Dig., Book V., T. 182, 273, Comm.
See below " Consequences of Adoption."
(w) Datt. Mim., sec. III. 3.
(n) Steele, L. C. 388.
According to the Roman Law an adopted son became a member of the group
of agnates to which his adoptive father belonged. This was because agnation
rested on a conceivable dependence on a single head of the family. Cognation,
S. II.] PLACE OF ADOPTION IN THE HINDU SYSTEM. 837
questions would axise out of the legal relations that had inter-
mediately grown up, but the records of the Courts do not show
that these have in practice produced litigation of any importance.
on the other hand, rested essentially on connection by blood. Hence the
adopted son retained his cognate relation to his family of birth and did not
acquire such a relation to his family of adoption except the agnates. The
husband was an affinis of his wife's cognates and she to his, but the cognates
had no afi&nity inter se. The adopted son acquired no affinity to his adoptive
family : much less, therefore, did he gain any such relation to the family of his
adoptive mother. " In adoptionem datus, aut emancipatus, quascunqne
cognationes adfinitatesque habuit, retinet : adgnationis jura perdit. Sed in ea
familia, ad quam per adoptionem venit, nemo est illi cognatus praeter patrem
eosque quibus adgnascitur : adfinis autem ei omnino in ea familia nemo est."
Dig. Lib. XXXVIII. Tit. X. Fr. 4, § 10.
As the Roman wife married by the ancient forms came under the " manus "
or full authority of her husband, she and her children were co-agnates. The
free form of marriage was in the end the only one used, and then there was
no agnation between her and her children; much less, therefore, between her
and her adopted son. Mutual rights of inheritance between a mother and her
children were established by special laws, and Justinian placed cognates on
the same footing generally as agnates ; but this did not extend the connection
of the adopted son. Adoption indeed, as we have seen, was by the same
legislator reduced almost to a form which left the adopted son still a member of
his family of birth. (See Maynz, Dr., Rom. § 16, 304, 338.)
The influence of the Church made itself felt in this as in other spheres. It
became customary to obtain a religious sanction to adoptions by a ceremony
performed by a priest. This was supposed to induce such a relation that the
impediments to marriage in the case of a real son were regarded as subsisting
equally for the adopted son. This position was reached by successive steps
like the other prohibitions which gained recognition in the early centuries of the
Christian Church. The original significance of adoption was in the meantime
continually declining, and at last Leo the Philosopher allowed even eunuchs and
women to adopt at pleasure without the petition and endorsement which had
previously been required. (See Zach. Jus. Graec. Rom. §§4, 23.) But when
the former legal importance of adoption died out the old associations connected
with it died out too, and it fell into comparative desuetude until reconstituted
under altered conditions in recent times as a means for satisfying the parental
instinct. Codice Civile, Lib. I. Tit. VII.; Code Nap. § 343 ss. Comp. Civ.
Co. of New York, Chap. II.
The nomination of grandsons or others as heirs by such documents as the
one preserved by Marculfus (see Canciani, Leg. Barb. v. II., p. 228) had
little or no connection with the ancient law of adoption ; and when the Feudal
system was established, kings and over-lords naturally discountenanced adop-
tions which would deprive them of the advantages of reversion. In India
adoption was too intimately connected with religion to be extinguished, but
the ruling powers have usually insisted on their sanction being taken and on
receiving reliefs in the form of nuzzarana or salami in return for recognition of
the adopted heir. The right is recognized as belonging generally to grantors
of inams. See Steele, L. C, pp. 182, 183, 386.
838 HINDU LAW. [BOOK III.
The blood connection of the adopted boy with his family of birth
is still recognized for the purpose of prohibiting marriage with a
relative within seven degrees (o). Some have maintained that the
same restriction arises in the family of adoption (p), but the more
general opinion perhaps is that this extends to only three
degrees {q), though for purposes of inheritance a connection is
recognized to seven degrees (r) or even as far as in the case of a
begotten son (s). The adopted son takes that position relatively
to the wife of his adoptive father as well as to the adoptive father
himself (t). Whether a connection arises between him and his
adoptive mother's family of birth such as to engender mutual
rights of inheritance has been controverted. The prevailing
opinion is in favour of the existence of such rights (v).
The change of status induced by adoption cannot be
renounced (w). The adopted son may, if he will, give up his
right of inheritance, and if he positively declines to fulfil the duties
of a son, the widow, it was said, may adopt another in his place {x).
But this does not restore him to his family of birth (y). A complete
adoption amongst the twice-born implies initiation as the adoptive
(o) Datt. Chand., sec. IV. 7, 8, 9; Vyav. May., Chap. IV., sec. V., para. 29;
Steele, L. C. 27, 47. The prohibition extends to his great-grandson. Ibid.
(p) Vyav. May., Chap. IV., sec. V., paras. 32, 35.
(q) Datt. Mim., sec. VI. 32.
(r) Vyav. May., Chap. IV., sec. V. 34.
(s) The Samskara Kaustubha and the Dharmasindhu limit the connection
by the Samskaras performed in each family. A full connection to seven and
five degrees exists where the upanayana plus the preliminary rites have been
performed ; where only the one or the other, a connection extending to but
five and three degrees. See above, pp. 108, 109, and Rao Saheb V. N. Mandlik's
Vyav. May., p. 352. A sister succeeds to her brother by adoption as to one by
birth; Mahantappa v. Nilgangawa, Bom. H. C. P. J. 1879, p. 390.
(t) Datt. Mim., sec. VI. 53; Steele, L. C. 188.
(o) Pudma Coomari Debt v. The Court of Wards, L. R. 8 I. A. 229; where,
however, the term " relations " may perhaps be confined to blood relatives
through the adoptive father.
(w) Ruvee Bhudr v. Roopshankar, 2 Borr. 713, cited and approved by Sir
M. Westropp, C.J., in Lakshmappa v. Ramava, 12 Bom. H. C. R., at p. 388;
Mahadu v. Bayaji, I. L. R. 19 Bom. 239.
At Athens an adopted son was allowed to return to his family of birth, but
only on condition of his leaving a son to represent him in the family of adoption.
See Petit, Leges Atticae, p. 141.
(x) Verbadru v. Baee Ranee, 2 Morr. 1, 3.
iy) Comp. Manu IX. 142; Sreemutty Rajcoomaree Dosee v. Nobcoomar
Mullick, 2 Sevestre 641 n.
S. III. A.] ADOPTION BY MALES. 839
father's son (z) and a consequent severance from the sacra of the
family of birth, which must devolve on the same person who takes
the estate (a).
An adopted son, like a real son, may take a share or compound
for it, and part from his adoptive father. He thus becomes
separated, but he does not lose his rights of inheritance (b).
SECTION III.— THE CAPACITY TO ADOPT AND THE
CIKCUMSTANCES UNDEE WHICH IT MAY BE
EXEECISED.
A. 1. — Adoption by Males.
The first duty of the married Hindu householder is to beget a
. son. The nature and the stringency of this obligation have been
(z) Col. Dig., Book V., T. 183 Comm.
(a) Vyav. May., Chap. IV., sec. V., para. 21.
(h) Steele, L. C. 185. See above, pp. 66—57, 324, 342.
We gain a more vivid conception of the extreme antiquity of the Vedas, and
the social life of which they afford glimpses, by considering that the stages in the
constitution of the family which they and even the post-vedic literature present
as still existing facts, had already for the most part been passed through by the
Greeks and Komans at the remote beginnings of their history. Adoption had
then already superseded amongst them the other modes of continuing the
family, which at a still earlier time they had no doubt shared with the
Brahmanic branch of the race. In Sparta it is said that down to a comparatively
late age the eldest brother taking the patrimony became lord of his brethren
after the fashion commended by Manu, and sharing the scanty produce of a
small estate with them, took one wife also for the whole group. (Polyb.
Excerpt. Vat. XII. 6; Schom, Ant. Gr., p. 214.) Sparta was the asylum of
archaic traditions. Poverty was given as a reason for this custom, but the
reason was probably one invented to account for what had existed from time
immemorial, and which affords a mark by which to track the Greeks back to a
time before the dispersion of the Aryan nations.
The legend of Draupadi is referred to in the Datt. Mim. sec. II. 49, to show
that there is nothing anomalous in a boy's being the son at the same time of
several fathers. This confirms the suggestion made above, p. 396 (x), which
is also supported by such stories as the one recorded in Datt. Mim., sec. II. 45.
The limited polyandry thus indicated was itself an amelioration of that implied
in the female gentileship of Sudras asserted by Saunaka in Datt. Mim., sec. V.
18, and made a basis for the doctrine of the eligibility amongst the Sudras of a
sister's or daughter's son for adoption.
The survival of the more primitive institution in Malabar is referred to by
Ellis in 2 Str. H. L. 167. In Puffendorf's Law of Nature, Book VI., Chap. I.,
will be found several references on this subject to the early travellers in India.
840 HINDU LAW. [BOOK III.
discussed in the preceding Section (c). But failing a son by birth,
adoption becomeis a duty incumbent on all males except ascetics
and members of those castes which, as to this institution, have
remained without the pale of ordinary Hindu Law. The duty
implies a capacity to adopt, and this is a general attribute of a
Hindu, subject only to such qualifications and exceptions as arise
from particular circumstances of mind, body, or estate, such as
will presently be considered. The desire to make sure of a
successor has led to several infringements of a purely logical
development of the first principles of the law, and the faculty
of adopting has been widened far beyond the religious need, for
which its main purpose is to provide. Such irregularities occur
in almost every system of law, and have to be dealt with in
detail, as in the following paragraphs gathered from the native
sources and the decisions of the Courts.
It has been observed {d) that the duty to adopt a son does not
arise until the birth of a son becomes very improbable. It is not
quite consistent with theory that the authority should exist with-
out strict regard to the need, but custom has settled this point
the other way, and it may be said that any sonlees male, married
or unmarried, if capable of legal acts, may adopt (e).
" In the ancient rule the adopter is spoken of only in the
masculine (/). A woman cannot perform a ceremony prescribed
by the Vedas, and adoption requires the recitation of hymns. The
Samskara Kaustubha allows a woman to adopt (g), the Vyavahara
Mayukha does not, except with the permission of her husband or
of his relatives " (h).
" The different opinions held on the subject of adoption should
be applied to any case as they agree with the custom of the
community, and with the Sakha to which a Brahman belongs " (i).
(c) See above, p. 812.
(d) Above, p. 814.
(e) See above, p. 822. Gopal v. Narayan, I. L. E. 12 Bom. 329; Hanmant
Ramchandra v. Bhimacharya, I. L. K. 12 Bom. 105.
(/) See above, p. 790. A husband putting away a worthy wife must endow
her with one-third of his property, or if poor maintain her; but one element of
her worth is that she have borne " an excellent son." Vyav. May., Chap. XX.,
para. 2.
ig) See Bayahai v. Bala Venktesh Ramakant, 7 Bom. H. C. E. xiii. App. ;
above, pp. 783, 795.
(h) MS. 405.
(i) MS. 405. From the same answer it appears that in some castes (the
Bhatele) adoption is not allowed while there ia a male kinsman surviving.
s. III. a] adoption by males. 841
" A man may adopt a boy in his lifetime, or authorize his widow
to do 8o after his death " (fe).
Adoption is for the husband and not for the wife (l), except by
delegation as shown below. Adoption is primarily resorted to for
the sake of securing a performance of the funeral rites of a man
having no male issue, and to perpetuate his name. Inheritance
follows, but it is a secondary consideration (m). The religious
obligation or the spiritual benefit raises a strong probability in an
appropriate case in favour of an adoption (n). The celebrity
or perpetuation of the family name of the adopter is, however,
recognized as a sufficient motive for adoption, even though there
be in the caste a disbelief regarding the spiritual motives for an
adoption (o).
In one ca-se it was ruled that an irregularly adopted son cannot
adopt his wife's sister's son, so as to defeat the reversionary rights
of a daughter and daughter-in-law of his adoptive father, who are
alive. Otherwise it was said the adoption of such a relation may be
made (p). The first adoption, however, being of a daughter's son,
was invalid. The additional reason given that the adoptive father
had a daughter was unfounded in law. His having a daughter-in-
law would, according to some, indeed most, opinions, make an
adoption by him improper if not impossible, even had there been
no other objection. The pseudo-adopted son thus pretended to be
taken into the family acquired no position in it, and an adoption
made by him could not affect the devolution of the property. As
a really adopted son he could undoubtedly have adopted so as to
defeat the expectations of other heirs.
(k) Huradhun Mookurjia v. Muthoranath Mookurjia, 4 M. I. A. 414; S. C. 7
C. W. E. 71 P. C.
(l) Chowdry Padom Singh v. Koer Udaya Singh, 12 C. W. K. P. C. 1;
S. C. 2 Beng. L. E. 101 P. C. ; S. C. 12 M. I. A. 350; Bykant Mony Roy v.
Kristo Soondery Roy, 7 C. W. E. 392; R. V. Venkata Krishna Row v. Venkata
Rama Lakshami Narsayya, L. E. 4 I. A. 1; Puttu Lai v. Parhati Kunwar,
L. E. 42 I. A. 155; Jai Singh v. Bijai Pal, I. L. E. 27 All. 417.
(w) Rungamah v. Atchummah et al., 4 M. I. A. 1 ; S. C. 7 C. W. E. 57 P. C.
(n) Huradhun Mookurjia v. Muthoranath Mookurjia, 4 M. I. A. 414; S. C. 7
C. W. E. 71 P. C.
Extreme old age, a wife past child-bearing, the apparent adoption of a boy,
his death in the family of adoptive father, the need of such a son in a religious
point of view, are, it was said, considerations that tend, when evidence is
conflicting, to prove the fact of adoption.
(o) Bhala Nahana v. Parhhu Hari, 1. L. E. 2 Bom. 67; the parties in this
case were of the Talahda Koli caste; Datt. Mim. I. 9; Datt. Chand. I. 3.
(p) Baee Gunga v. Baee Sheoshunkur , Bom. Sel. Eep. 73.
842 HINDU LAW. [BOOK III.
Adoption pendente lite is valid (q), though made to defeat a
gift previously made. The adopter, it was held, was not under
an obligation to the donee not to adopt. Even if a contract to
this effect had been made, it was doubted whether such contract
would affect the validity of the adoption (r).
Adoption by an unmarried person, even though he may be a
minor (s), is not prohibited by Hindu Law (t).
" A Brahmachari (v) can adopt and transmit his heritable rights
to his adopted son (w).
" An unmarried Brahman may adopt " {x).
" A sonless widower may adopt " (?/).
The decisions of the Courts agree with this opinion. Thus it
was ruled that an adoption by a widower is valid {z).
Conversion either to Islam (a) or to any other religion, e.g.,
Brahma, has no effect upon the capacity of the convert to give
his son in adoption {b).
A. 1. 2. — In Kelation to Paternity.
A second son cannot be adopted during the life of the one first
adopted (c) except by special custom (d), unless the son has
(q) Lahiri v. Lahiri, I. L. E. 11 Cal. 43.
(r) Rambhat v. Lakshman, I. L. E. 5 Bom. 631. This ruling is not incon-
sistent with the legal principle that no son can set aside a valid alienation made
prior to his birth or adoption. The adopted son was held bound by the donation.
(s) Jumoona Dassya v. Bamasoonderai Dassya, L. E. 3 I. A. 72; S. C.
I. L. E. 1 Cal. 289.
(t) N. Chandvasekharuda v. N. B. Eahmana, 4 Mad. H. C. E. 270. See
above, p. 814, note (d). Gopal v. Narayan, I. L. E. 12 Bom. 329.
(v) A Brahmachari is a professed student of the sacred writings.
(w) Gunnapa Deshpandee v. Sunkapa Deshpandee, Bom. Sel. Eep. 202, 229
(2nd edn.); Suth. Syn. Note 4; Col. Dig., Book V., T. 273.
(x) MS. 1670. As to adoption by an unmarried man, see above, p. 922.
(y) MS. 1677. Nagappa v. Suhha, 4 M. H. C. E. 367.
(z) N. Chandvasekharuda v. N. B. Eahmana, 4 Mad. H. C. E. 270; Nagapa
Udapa v. Subha Sastry, 2 Mad. H. C. E. 367.
(a) Sham v. Santa, I. L. E. 25 Bom. 551.
(b) Kusum V. Satya, I. L. E. 30 Cal. 999.
(c) Datt. Mim., sec. I., para. 6; Steele, L. C. 45 ; 2 Macn. H. L. 200; 2 Str.
H. L. 85; Daee v. Motee, 1 Borr. E. 75; Yachereddy Chinna Basapa et al. v.
Y. Gowdapa, 5 C. W. E. 114 P. C. ; Rungama v. Atchama, 4 M. I. A. 1 ; Gopal
Lall v. Musst Sree Chundraolee Buhoojee, L. E. I. A. Supp. 131 ; Surendra-
S. III. A.] IN RELATION TO PATERNITY. 843
been expelled from caste (e). The expulsion even of a begotten
son is held to warrant an adoption in his place.
The following opinions of the Sastris fully recognize this
principle.
" No one having a lawfully begotten son can adopt (/). Nor
one having an adopted son living " {g).
The adoption of a son, while a son is living and retains the
character of a son, is invalid (h).
In Madras, a person having adopted a son married a second
wife, and in conjunction with her adopted a second son, the first
adopted being still alive. The second adoption was held valid (i).
But this cannot now be considered as law except where supported
by special custom : the Judicial Committee, indeed, have said that
it is settled law that a man having an adopted son living cannot
adopt another {k).
The Dattaka Mimamsa, it is said, allows the adoption of a
second son, the first living, with the consent of the first (i). But
the author plainly disapproves the doctrine though he cannot deny
the instances afforded by the Puranic writings, and it cannot now
be considered part of the law.
keshav Roy v. Doorgasundari Dassee, I. L. E. 19 I. A. 108; Mohesh Narain
V. Taruck Nath, L. K. 20 I. A. 30.
(d) Steele, L. C. 181, 183.
The Peshwa, it is said, received a present of some lakhs of rupees on one
occasion for allowing a double adoption. Ibid.
The existence of a daughter makes no difference. See ex. gr. the appoint-
ment in Sri Raghunadha v. Sri Brozo Kishore, L. E. 3 1. A., p. 166,
(e) Steele, L. C. 42.
(/) MS. 1659.
(g) MS. 1637. As to the invalidity of a plurality of sons sought by adoption,
see above, p. 821. Yet one or two castes allow an adopted son for each wife,
and traces of the same custom are pretty widely spread. See note (e).
(h) Joy Chundro Raee v. Bhyruh Chundro Raee, 1 M. S. D. A. E. 1849,
p. 461. A grandson obstructs adoption equally with a son. See above, pp. 814,
821, 822.
(t) See Rungamah v. Atchummah et al, 4 M. I. A. 1 ; S. C. 7 C. W. E, 57
P. C; Datt. Mim., sec. I., paras. 6, 12; Col. Dig., Book III., T. 295.
(k) Gopeelal v, Musst. Chundraolee Buhajee, L. E. I. A. Supp. 131 ; S. C. 11
B. L. E. 391 Pr. Co., 19 C. W. E, 12 C. E. approving Rangamma v. Atchamma,
4 M. I. A. 1. See above, p. 821. In 1 Str, H. L. 78 a second adoption is
allowed, subsisting the first, but this is denied by Sutherland (2 Str. H. L. 85),
though Jagannatha allows adopted sons of the several castes (various descrip-
tions). Col. Dig., Book v., T. 308 Comm. Mohesh Narain v. Taruck Nath,
L. E. 20 I. A. 30.
(l) MS. 1657. Passage not cited, but obviously Datt. Min., sec. I., para. 12.
844 HINDU LAW. [BOOK III.
The death of the son first adopted does not render the adoption
of a second son made in his lifetime a valid one (m).
A second adoption on the death of the first adopted son without
issue is good (n.), as a son in the situation of the first adopted Bon
could not exhaust the whole of the spiritual benefit which a son
was capable of conferring on his deceased father (o).
A wife's pregnancy, though known, does not, it was said, prevent
an adoption (p).
" A second son may be adopted in place of one whose adoption
was illegal " (g).
A. 1. 3. — Fictitious Cesser of Paternal and Filial Eelation.
" The insanity of a man's son enables him to adopt (r), or that
of his adopted son " (s).
(m) B. Camumah v. B. Chinna Venkatasa, M. S. D. A. E. 1866, p. 20;
Veraprashyia v. Santanraja, M. S. D. A. E. 1860, p. 168,
(n) Rungamah v. Atchummah et al., 4 M. I. A. 1 ; S. C. 7 C. W. E. 67 P. C. ;
Shamchunder v. Narayani Diheh, 1 C. S. D. A. E. 209; Huradhun Mookurjia
V. Muthoranath Mookurjia, 4 M. I. A. 414; S. C. 7 C. W. E. 71 P. C. ; Musst.
Bhoohyn Moyee Dehia v. Ramkishore Acharjee, 10 M. I. A. 279; S. C. 3
C. W. E. 15 P. C. ; Ramahai v. Raya, I. L. E. 22 Bom. 482.
(o) Ram Soondur Singh v. Surbanee Dossee, 22 C. W. E. 121. The adopted
son simply takes the place of the begotten son, and his death is attended with
the same consequences as that of the begotten son.
(p) Nagahhushanam v. Seshamma Garu, I. L. E. 3 Mad. 180, contrary to
Narayana Reddi v. Vardachala Reddi, M. S. D. A. E. for 1859, p. 97. This
decision is opposed to the general principle of adoption being a merely supple-
mentary process to provide against orbation, but practice, as will have been seen,
has diverged from first principles in many instances. Hanmant Ramchandra
V. Bhimacharya, I. L. E. 12 Bom. 106.
(q) MS. 1665. " Illegal " here means void. Comp. Lakshmappa v. Ramava,
12 Bom. H. C. E., at p. 393, 397.
(r) MS. 1654 ; comp. Manu IX. 169, and see above, pp. 814 ss.
(s) MS. 1702. The father is regarded as virtually sonless, seeing that the
lunatic son cannot perform the requisite ceremonies for ensuring his repose in
the other world, or satisfy the debt to the father's ancestors, see above, pp. 150,
644 ss. For the rules of the customary law as to the disqualifications of a son
which justify adoption, see above, pp. 816, 817. It may perhaps be doubted
whether under the present law expulsion from caste of itself causes such a moral
death that the father of a man so expelled can adopt another, see above, p. 815;
Steele, L. C. 185. The outcast may be restored, and unless there has been a
formal and valid act of disinheritance (above, p. 649) he would claim the
succession against the adopted son.
S. III. A.] CAPACITY IN RELATION TO AGE. 845
A. 1. 4. — Existence of a Widow of a son or Grandson.
' * A father-in-law (son deceased) may adopt notwithstanding the
existence of the daughter-in-law; but she cannot adopt without
his permission (Brahman) " (t).
" A father-in-law is competent to adopt after his son's death
notwithstanding the existence of his daughter-in-law, but the
preferable course is to allow her to adopt " (v). " The son adopted
by her, indeed even after an adoption by her father-in-law, succeeds
to her property and that of her husband, ' ' though not apparently
in the Sastri's opinion to that of the husband's father (w).
A. 1. 5. — Capacity in Kelation to Age.
Though there is no exact restriction as to the adopter's age, it
is inferred that he should not adopt until no hope remain of
begetting a son (x). But this cannot be regarded now as more
than a simply moral precept; the age is really unlimited by
law {y), provided only it exceed that of the adopted son {z) in
case of a male adopter (a-), and the adopter has reached years of
discretion (h). The last restriction is uncertain. In tho Mankar
Case (c) the Sastris were asked at what age a man hopeless of
offspring might adopt. One says at sixteen, another at twenty.
Others say no precise time is fixed by the Sastras, whence,
probably, one replies that he may adopt when he pleases. Three
of the nine sages insist strongly on all possible measures being
first used to remove the disability, and one says that hope must
(t) MS. 1668. The daughter-in-law is obviously the proper person to adopt
a son to her deceased husband and herself. According to the authorities which
give her the right to adopt, the competence of her father-in-law would introduce
rival claimants to succession and sacra. But her dependence makes the assent
of her father-in-law necessary to her performance of a religious act, such as
adoption. Vithal v. Bapu, I. L. E. 15 Bom. 110; Collector of Madura v.
Mootho Ramalinga, 12 M. I. A. 396.
(v) MS. 1660. See below.
(w) MS. 1666. Lakshmi v. Vishnu, I. L. K. 29 Bom. 410.
(x) Steele, L. C. 43. See above, pp. 812, 813, 814.
(y) Ibid. 182, 383.
(z) Ibid. 384; compare Cic. Pro. Domo. Ch. 13. 14.
(a) Gopal V. Vishnu, I. L. E. 23 Bom. 250.
(b) See above, p. 814, note (d) ; Jumoona Dassaya v. Bamasoonderi Dassaya^
L. E. 3 I. A. 72.
(c) 2 Borr. E., at p. 102.
846 HINDU LAW. [BOOK III.
not be abandoned or a son adopted until the proposed father has
reached old age.
The principle stated above (d), as to the imitation of nature,
should prevent the adoption of a son at any rate by a boy under
puberty; but this can hardly be stated with certainty as a rule
of the positive law. Mr. Shamacham, in the Vyavastha Darpana,
seems to think that an adoption by a child between 8 and 15 may
be good for religious, but not for civil, purposes ; but the proposed
severance seems inconsistent with the principles of the law of
inheritance. It is opposed too to the principle laid down by
Holloway, J., and apparently approved by the Privy Council (e),
that the validity of an adoption is to be deduced by spiritual
rather than by temporal considerations, that the substitution of a
son of the deceased for spiritual reasons is the essence of the
thing, and the consequent distribution of property a mere accessory
to it.
Bengal Eeg. X. of 1793, § 33, says that an adoption shall not
be competent to a minor (/) of whose estate possession has been
taken by the Court of Wards. The Sadr Court of Bengal held
that this prevented the minor equally from giving a power to
adopt {g). In other cases the power to adopt may be given at the
ordinary age of discretion (h). The judgment last referred to
discusses the evidence as to minority but does not expressly say
that adoption by a minor is generally incompetent. No provision
on this subject is made by Act XX. of 1864, which provides for
the care of minors and the administration of their property in
the Presidency of Bombay. Act IX, of 1875, fixing the age of
majority in ordinary cases at eighteen, but in that of wards at
twenty -one, does not affect capacity in relation to marriage or
adoption.
" A man aged twenty may adopt " (i).
(d) Page 798 (note).
(e) Sri Viradi Pratapa Raghunada v. Sri Brozo Kishoro Patta Deo, 7 Mad.
H. C. K. 301 ; I. L. R. 1 Mad. 69 ; 25 C. W. R. 291 (C. R.) ; L. R. 3 I. A. 154,
193.
(/) Under 18, Reg. XXVI. of 1793, sec. 2.
ig) Anandmoyee Chowdrain v. Sheehchandar Roy, S. D. A. R. for 1855, p. 218.
(h) Jumoona Dassya v. Bamasoonderi Dassya, 25 C. W. R. 235, I. L. R.
1 Cal. 289 (P. C); S. C. L. R. 3 I. A. 72, citing Rajendro Narain v. Saroda
Soondaree Dehia, 15 C. W. R. 548. Whether adoption by a minor without
consent of the Court of Wards is wholly void is questioned in Musst. Anund-
moyee Chowdhoorayan v. Sheeb Chunder Roy, 9 M. I. A. 287.
(i) MS. 1623. See above, p. 814, note (d).
S. III. A.] CAPACITY IN RELATION TO BODILY STATE. 847
A. 1. 6. — Capacity in Eelation to Intelligence.
An insane man may, it is said, adopt with the consent of his
kinsmen. The adoption is generally made by his wife under an
assumed authority sanctioned by the kinsmen or the caste (k).
An adoption by a person in a state of insensibility {i.e. disturbed
mind) from dangerous illness, by verbal declaration, without
performance of the prescribed ceremonies, was held invalid (l).
The transactions of sick and dying men always call for close
scrutiny, and the Judicial Committee have said that in a case of
adoption or will by a dying man the jealous requisitions of the
law as to the proof of acts of persons done in extremis are fully to
be complied with (m).
" The adopter must be able to ask for the son, to accept him,
and to smell his head " (n).
A. 1. 7. — Capacity in Eelation to Bodily State.
A person disqualified to inherit cannot adopt, and thus secure
to a stranger the right to a share which is allowed to the natural-
born son (o).
In case No. XX., under the head of Adoption in Macnaghten's
Hindu Law (p), the Sastri says a leper is incompetent to adopt.
In case No. XXI. the Sastri thinks competence may be regained
by penance, and with this Macnaghten agrees; but unless leprosy
is of a virulent form, it does not act as a disqualifying element
either in inheritance (q) or in adoption (r). An impotent man it
(k) Steele, L. C. 43, 182, 382.
(l) Bulluhkant Chowdree v. Kishenprea Dassee, 6 C. S. D. A. K. 219.
(m) Tayanimaul v. Sashachalla Naiker, 10 M. I. A. 429, 437.
(n) MS. 1662. The authority for the last-mentioned ceremony is not quoted.
In performance it resembles the uttering of a prayer or formula in a whisper.
The smelling of the head (aghrana), however, is a mode of salutation used in
receiving a child or younger brother after any prolonged absence. It is practised
amongst some of the South-Sea Islanders. It may have become a part of the
ceremony through a real or supposed capacity thus to distinguish a member of
one's own gotra. As to the extreme olfactory sensibility of some races, see
Tyler's Anthropology, pp. 2, 70, and Letourneau's Sociology, p. 76.
(o) Mit., Chap. 2, sec. 10, para. 11; above, p. 795.
(p) Vol. 2, p. 201.
iq) See above, pp. 641, 644.
(r) Mohunt Bhagwan Ramanuj Das v. Das, L. E, 22 I. A. 94.
848 ' HINDU LAW. [BOOK III.
is said cannot adopt, at least until his incapacity has been proved
by marriage (s). His religious duty no doubt is to beget a son if
he can ; but the allowance of adoptions by bachelors and widowers
shows that the religious obligation is not accompanied by a legal
incapacity. A man who is blind, deaf, dumb, or diseased may
adopt (t).
A. 1. 8. — Capacity in Eelation to Eeligious State.
Adoption by one who has renounced the world and devoted
himself to a life of study and asceticism ought not, according
to theory, to be possible, but the restriction is now only
speculative (v).
Pollution from the death of a relative incapacitates during its
continuance for adoption (w).
" A person in extremis is not so affected with impurity by a
death in the family as to be incompetent to adopt " (x).
A. 1. 9. — Capacity in Eelation to Caste Connection or
Exclusion.
A man degraded from caste cannot adopt (y) during his
exclusion.
The Mitakshara denies the capacity to adopt generally to a man
himself disqualified for inheritance {z), and specifies loss of caste
in particular as a cause of disinherison. This extends equally to
women as to men (a). The only persons who can take the father's
place in such cases are the legitimate issue and the son begotten
(s) Steele, L. C. 43.
(t) Steele, L. C. 43.
(v) See above, pp. 524, 537, 835; Apast., Pr. II., Pat. 9, Kh. 21, para. 19,
Kh. 23.
(w) Ramalinga Pillai v. Sudasiva Pillai, 1 C. W. K. 25 Pr. Co. The periods
of pollution vary with the caste and the nearness of relationship, as noticed
above, p. 478. For Brahmans the extreme time is 10 days, for Kshatriyas 12,
for Vaisyas 16, for Sudras 30 days.
(x) MS. 1674.
(y) Steele, L. C. 43, 182, 382.
(z) Mit., Chap. II., sec. X., para. 11; see above, p. 880.
(a) Loc. cit., paras. 8, 9.
S. III. A.] JAINS. 849
on the wife by a kinsman (b). The latter is not now recognized,
so that the man born blind or deaf is deprived of all resource.
Loss of caste is now declared by statute not to involve loss of
inheritance, and by analogy the out-cast ought perhaps to have
power to adopt, but the whole position of the out-cast retaining
his heritable rights is so anomalous that no very confident opinion
can be offered on this subject (c). The questions that can arise
out of it must be very few, as an out-cast could scarcely obtain a
son in adoption.
A. 1. 10, — In the Case of Particular Castes.
In the case cited above, p. 827, the Sastri said that a daughter-
in-law could not adopt while the brothers of her deceased husband's
father survived {d).
A. 1. 11. — Vaisyas.
A Vaisya who has undergone tjie ceremony of vibhut vida is
capable of adopting a son. The Hindu Law does not expressly
prohibit it. A contrary custom is to be proved by satisfactory
evidence (e).
A. 1. 12. — SUDRAS.
" An unmarried Sudra may adopt " (/).
A. 1. 13.— Jains.
The Jains generally submit to the Hindu law of adoption though
denying important doctrines. Their capacity to adopt in the
(b) Col. Dig., Book v., T. 334.
(c) Comp. the remarks above, pp. 815, 816, and Manu. IX. 125, as to the
precedence of the first-born son.
(d) MS. 281, but on this see the note loc. cit.
(e) Mhalsahai v. Vithoha Khandappa, 7 Bom. H. C. R. App. 26. " Vibhut
vida " is a renunciation of worldly affairs and interests analogous to that
prescribed by the Smritis for Brahmanas, see Manu VI. ; Gaut. III.
if) MS. 1653. See above, pp. 824-5.
H.L. 54
850 ' HINDU LAW. [BOOK III.
absence of custom is therefore governed by the ordinary rules (g).
They can, however, adopt a daughter's son, and their widows enjoy
the right of adoption without the permission of their husbands or
the consent of their heirs {h).
A. 1. 14. — Bhateles.
" The custom of the Bhatele caste prevents adoption when there
is a kinsman in existence " (i).
A. 1. 15. — Garasias.
In the Hindu caste of Chudasama Gamati Garasias adoption is
recognized (k).
A. 1. 16. — Sannyasis and Gosavis.
" All classes may adopt with due ceremonies, Gosavis
included " (1).
A married Gosavi took a boy (Talabda Koli) in adoption, on a
promise to settle property on him. This was carried out by his
widow about thirty years after the husband's death, and was
disputed by his relatives, but was held sufficient (m).
A. 2. — Adoption by a Male — By Delegation.
A. 2. 1. — By Means of Wife.
A woman may adopt with her (living) husband's order {n)
(g) See above, p. 924, note (h) ; below, sec. III. A. 3. Chotay Lall v.
Chunnoo Lall, L. E. 6 I. A. 15 ; Amava v. Mahadgauda, I. L. K. 22 Bom. 416;
Amhahai v. Govind, I. L. K. 23 Bom. 257.
(h) Sheo Singh Rai v. Musst. Dakho, L. E. 5 I. A. 87; S. C. I. L. E.
1 All. 688.
(i) MS. 405.
(k) Verahhai v. Bai Heraha, I. L. E. 27 Bom. 492.
(1) MS. 1678. See 2 Str. H. L. 133. Instances will be found below of
adoptions by Prabhus, by Lingayats, and others; and also above, p. 347 ss.
(m) Bhala Nahana v. Parhhu Hari, I. L. E. 2 Bom. 67.
(n) Eeply of a Sastri in the Mankar Case, 2 Borr. E., at p. 102.
S. III. A.] ADOPTION BY MEANS OF DAUGHTER-IN-LAW. 851
It is not lawful for her to do so without the permission of her
husband " (o).
If the husband's death approaches the wife may obtain hie
permission and afterwards adopt as a widow (p).
A. 2. 2. — By Means of Widow.
If a man begins the ceremonies of adoption, and dies before
completing them, his widow might complete them (q).
A. 2. 3. — By Means of Daughter-in-Law.
In case of lunacy of a husband the wife of the lunatic may
adopt with her father-in-law's sanction (r).
The Sastri in one case held a " daughter-in-law bound by her
father-in-law's engagement that she should adopt" a specified
sapinda (s). This was after the father-in-law's death. It is not
clear whether the adoption was to be to the promisor or to his
deceased son. If to the former he could not properly thus deprive
his dead son of his due sraddhas, and the delegation was altogether
questionable if meant to operate during the father-in-law's life;
equally questionable as an attempt to bind the widow of his son
after his death.
(o) Reply of Sastris of the Sadr Court in Sree Bnjhhookunjee Maharaj v.
Sree Gokoolootsaojee Maharaj, 1 Borr. R., at p. 211, See the Viramitrodaya
and the Dattakakaustubha to the same effect, quoted in Narayan v. Nana,
7 Bom. H. C. E., at p. 159, and Col. Dig., Book V., T. 273 Comm. Also
Vasishtha XV. 5.
(p) 2 Str. H. L. 88; MS. 1661. Such cases as these, though sometimes
regarded as instances of delegation, are more properly referred to implied
authority to adopt given to the widow.
iq) 2 Str. H. L. 88; MS. 1661. Such cases as these, though sometimes
regarded as instances of delegation, are more properly referred to implied
authority to adopt given to the widow. Lakshmihai v. Ramchandra, I. L. R.
22 Bom. 690; Suhharaya v. Subhammal, I. L. R. 21 Mad. 497.
(r) See above, sec. III. A. 1. 6. As to adoption by a wife on behalf of a
disqualified person, as an insane husband incapable of appointing her, see
above, p. 817. She ought to adopt to her husband in the case in the text.
Comp. Ramjee Hurree v. Thukoo Baee, 2 Borr. R. 485; Vithoha v. Bapu,
I. L. R. 15 Bom. 110 ; Lakshmihai v. Vishnu, I. L. R. 29 Bom. 410.
(s) MS. 1682 ; Y. Venka Reddi v. G. Soohha Reddi, M. S. D. A. Dec. 1858,
p. 204.
852 r HINDU LAW. [BOOK III.
A. 3. — Kestriotions on Adoption to Persons Deceased.
Spiritual benefits are not the only ground of adoption. The
Jains recognize adoption though they do not practise the Sraddha
or Paksha ceremonies {t). Adoption rests generally on the
advantage of having a son to perform funeral rites, which the
Jains deny. But though the Hindu law of succession is applicable
to them, yet it cannot be further extended so as to allow adoption
to dead parents or sanction the exercise of a power of adoption by
another to dead persons (v) through a fictitious gift.
A son cannot, it was said, be adopted to the great-grandfather
of the last taker after the lapse of several years, when all the
spiritual purposes of a son, according to the largest construction
of them, should have been satisfied (w). This, however, is the
law in the Bombay Presidency. In the case of Kannapalli v.
Pucha Venkata (x) the Judicial Committee have approved of the
view expressed by Mitter, J., in Ram v. Surhana (y), that a
married son did not exhaust all the spiritual benefit which a son
could confer on his father.
A. 4. — Qualifications of the Power to Adopt Arising from
Family and Political Kelations.
A. 4. 1. — Consent of Wife.
A wife's consent to adoption by her husband is not indispensable
to the validity thereof (z). Adoption is the act of the husband
alone. The wife may join in it (a), and ought to do so for a full
compliance with the religious law (h). Her association, however,
(t) See above, p. 633. Sheo Singh Rai v. Musst. Dakho, L. E. 5 I. A. 87.
(v) Bhagvandas v. Rajmal, 10 Bom. H. C. E. 241, 265.
(w) Musst. Bhoohun Moyee Debia v. Ramkishore Acharjee, 10 M. I. A. 279;
S. C. 3 C. W. E. 15 P. C; Beng. S. D. A. E. 1856, p. 122; Ramkrishna v.
Shamrao, I. L. E. 26 Bom. 526. A narrower limitation exists as held in the
case of Jains. See above.
(x) L. A. 33 I. A. 145, 154.
iy) 22 W. E. 121, 123.
(z) Alank Manjari v. Fakir Chand, 5 C. S. D. A. E. 356.
(a) See Rungamah v. Atchummah et al., 4 M. I. A. 1 ; S. C. 7 C. W. E. 57
P. C.
(b) Colebrooke says that according to the Mitakshara, though the mother's
consent may perhaps be essential to the gift, it is not to the taking of a son
in adoption. Mit., Chap. I., sec. XI., para. 9, note. See below, sec. V., as to
the gift.
S. III. A.] PUPILLAGE. 858
is not indispensable, and an adoption is valid even when it takes
place against her expre&s wishes. After her husband's death, ehe
can give her eon in adoption provided there is no express
prohibition by the husband (c).
The Poona Sastrie replied in the Mankar Case {d) that the
husband ought to consult his wife on a proposed adoption, but
that the right belongs to him alone.
A. 4. 2. — Family Eelations — Kindred.
The existence of brothers or other kinsmen does not affect a
man's capacity to adopt. It is said, indeed, that in a few castes
the parents or an undivided brother {e) may object to a particular
adoption, and in many the assent of near relatives must be
asked (/), but it is not provided that their disapproval shall
invalidate the adoption {g). They must be invited to take part in
the ceremony, and a son of a brother or other near relative is to
be chosen by preference, but these obligations are of a simply
religious character.
A. 4. 3. — Pupillage.
The sanction of the Court of Wards is necessary to an adoption
by a minor under its care {h). Act XX. of 1864 makes no provision
on this subject. It provides for the guardianship of a minor's
person and the administration of his estate, but does not declare
him generally incapable of jural acts. In the Bombay Presidency
therefore a boy under guardianship, but capable of religious acts,
may possibly adopt or marry, though he may not deal with his
property (z).
(c) Jogesh v. Nritya, I L. R. 30 Cal. 965.
(d) 2 Borr. R., at p. 102.
(e) Steele, L. C. 386, 386. The consent may be a necessary restriction when
a minor proposes to adopt — especially the consent of his parents.
(/) Steele, L. C. 183, 386.
ig) Steele, L. C. 46.
{h) See above, sec. III. A. 1. 6, p. 845. Jumoona Dassya v. Bamasoonderi
Dassya, L. R. 3 I. A. 72.
(t) See above, A. 1. 5; and below, B. 3.
864 HINDU LAW. [BOOK III.
A. 4. 4. — Consent or Acquiescence of the Sovereign.
" The writing of documents is insignificant (not essential). The
Sastras do not require the permission of Government to be obtained
for an adoption " (/c). But '' they enjoin that a proposed adoption
should be notified to the Government " (I). " The object of
applying to Government is that it may continue to the adopted son
Watans, &c., held from it. When the seat of Government is
distant intimation may be made to the local officer" (w). Even
notice to the ruling power is not necessary to validate an
adoption (n), but it is so usual that an omission of it in an
important case casts suspicion on the transaction. A want of
sanction by the ruling power is not sufficient to invalidate adoption
duly made with sufficient ceremonies (o). The sanction of the
ruling power to an adoption by a Kulkarni or his widow, or by a
coparcener in Kulkarniship or his widow, is not necessary to give
it validity, nor has Government a right to prohibit or otherwise
intervene in such adoption (p).
In several cases it seems to have been supposed that the sanction
of the Government was necessary to an adoption by a widow where
it would not have been essential to an adoption by her deceased
husband (g). The authorities, however, on which the widow's
power rests impose no such condition on its exercise.
Bombay Act II. of 1863, sec. 6, cl. 2, as to the non-recognition
of adoption by a Court relates only to a question of assessability of
land when raised between Government and the claimant by
adoption (r). It is not intended to regulat-e the enjoyment of an
estate as amongst the heirs of the original grantee.
(k) MS. 1675.
(l) MS. 1677, 1683.
(m) MS. 1711 ; 2 Str. H. L. 87.
(n) Sutroogun Sutputty v. Sahitra Dye, 2 Knapp, p. 287; S. C. 5 C. W. E.
P. C. 109.
(o) Bhaskar Buchajee v. Narroo Ragonath, Bom. Sel. E. 25.
(p) Ramachandra Vasudev v. Nanaji Timaji, 7 Bom. H. C. E. 26 A. C. J. ;
Sree Brijbhookunjee Maharaj v. Sree Gokoolootsaojee Maharaj, 1 Borr. 181,
202 (2nd ed.); Narhar Govind v. Narayan Vithal, I. L. E. 1 Bom. 607;
Huehutrao Mankur v. Govinrao Mankur, 2 Borr. 75, 83 (2nd ed.) ; Alank Man-
jan V. Fakir Chand, 5 C. S. D. A. E. 356.
iq) See below, B. 3. 36.
(r) Vasudeo Anant v. Ramkrishna, I. L. E. 2 Bom. 529.
8. III. B.] ADOPTION BY WIFE. 855
THE CAPACITY TO ADOPT AND ITS EXEKCISE.
B. — Adoption by Females.
B. 1. — No Adoption by a Maiden.
The Hindu Law imposes on parents the duty of getting their
daughters married. It does not contemplate children as necessary
to women on their own account (s). Even a married woman or a
widow adopts only for her husband, and herself takes but an
incidental benefit save under the exceptional custom allowing a
kritrima adoption to the woman alone in Maithila. For the
unmarried woman there is no adoption; nor in strictness for any
woman except to her husband.
B. 2. — Adoption by a Wife.
A wife only can receive authority to adopt (t) either as wife or
as widow. She can adopt only as the representative of her
husband^ and under a real or assumed authority from him. This
is generally admitted {v), and is established by the following cases.
B. 2. 1. — Adoption by a Wife under Express Delegation.
In Thakoo Baee Bhide v. Ruma Baee Bhide (w) the Sastris
quote from Vasis.htha — " A husband's commands to adopt are
required for a married woman, but for a widow to adopt without
such command the permission of the father, or if he be not alive
then of the (jnati) relatives must be obtained."
The express authority of her husband is indispensable, if a wife
adopts in his lifetime (x).
(s) See above, p. 790; below, B. 3. 13.
(t) Bhagvandas v. Rajmal, 10 Bom. H. C. E. 241.
(v) See Ramji v. Ghamau, I. L. K. 6 Bom., at p. 501; Puttu Loll v. Parbati
Kunwar, L. E. 42 I. A. 155; Jai Singh Pal v. Bijai Pal, I. L. E. 27 All. 423.
(w) 2 Borr. E., at p. 492.
{x) Narayan v. Nana, 7 Bom. H. C. E. A, C. J. 153, 174 ; Bayabai v. Bala
Venkatesh, 7 Bom. H. C. E. App. i. ; Rangubai v. Bhagirthibai, I. L. E.
2 Bom., at p. 380; Ramji v. Ghamau, I. L. E. 6 Bom. 498.
856 HINDU LAW. [BOOK III.
B. 2. 2. — Implied Delegation.
This arises in such cases as those of a husband beginning the
ceremonies of adoption with the participation of his wife. In the
event of his becoming helpless she may complete the adoption.
Any unequivocal indication of his assent would probably be taken
as equivalent to an express command. This may be gathered from
the cases in the next sub-section.
B. 2. 3. — Conditions of Effective Delegation.
The husband directing his wife to adopt must be in a condition
with regard to freedom from loathsome disease, such that he could
himself adopt. So also as to his relations to his caste. In case of
insanity his assent or command is assumed by the rules of several
castes, his place being taken by the kinsmen in controlling the
choice made by the wife [y).
A husband may authorize his wife to adopt a particular child,
named by him, or a child selected by her (z).
B. 3. — Adoption by a Widow.
' ' The permission expressed or implied of her deceased husband
is requisite to enable a widow to adopt. An implied permission
arises from a known intention of the deceased to adopt. Failing
this she must obtain the permission of her father-in-law or other
relative " (a). This permission is merely substitutive in default
of any intimation by the deceased husband of his wishes. When
he has clearly signified his wishes, these prevail over the wishes
either of the widow or of the relatives, as shown farther on.
The husband's sanction must have been given, according to
the Mitakshara, as understood by Colebrooke (h), because other-
wise the adoption could not benefit him. But Colebrooke says
the sanction may be replaced by that of the husband's kindred (c).
iy) Steele, L. C. 43, 182.
(z) Veerapermal Pillay v. Narrain Pillay, 1 Str. E. 91; Ry Sevagamy
Nachiar v. Heraniah Gurhah, 1 Mad. S. D. A. Dec. 101.
(a) MS. 1662.
(b) 2 Str. H. L. 91; so Ellis, ihid.
(c) Ibid., and Mit., Chap. I., sec. XI., p. 9, notes.
9. III. B.] ADOPTION BY WIDOW. 867
Ellis thinks that the prior assent of the husband may not be
necessary amongst Sudras; but it must be either expressed or
presumed.
The capacity of a widow to adopt must thus, like that of a wife,
be drawn from a real or an assumed authorization on the part of
the husband. If he has intimated a wish that there should be no
adoption none can be made (d). If he has left no direction at
all, there can, according to the Bengal Law, be no adoption.
According to the law of Bombay his assent may, in such a case, be
assumed; but the widow's choice is controlled by the kinsmen, at
least in a united family (e). The consent or authority of the
husband has been pronounced indispensable to an adoption by a
widow after his decease, in Bengal (/), in the N. W. Provinces (g),
and in Madras (/i), but in Madras it may now be replaced by the
assent of the undivided members of the husband's family, as in
Bombay (i). In Mithila the assent of the husband must be given
at the time of the adoption, and therefore a widow cannot receive
a son in adoption, according to the Dattaka form (k).
A Jain widow can adopt without her husband's authority or
that of his kinsmen (l).
A widow in Bengal on the other hand cannot adopt without her
(d) The Collector of Madura's Case, 12 M. I. A., at p. 443; Bayahai v. Bala
Venktesh, 7 Bom. H. C. R., at pp. xvii. ss. App.
(e) Ramji v. Ghamau, I. L. R. 6 Bom., at pp. 602, 503; Collector of Madura's
Case, 12 M. I. A. 397, 442 ; Patel v. Chunilal, I. L. R. 15 Bom. 566.
(/) Musst. Tara Munee Divia v. Dev Narayan et al., 3 C. S. D. A. R. 387;
Huradhun Mookurjia v. Muthoranath Mookurjia, 4 M. I. A. 144; S. C. 7 C. W.
R. 71 P. C. ; Sutroogun Sutputtee v. Savitra Dye, 2 Knapp, 287 ; S. C. 5 C. W.
R. P. C. 109; Musst. Bhoobun Moyee Dehia v. Ramkishore Acharjeci
10 M. I. A. 279; S. C. 3 C. W. R. 15 P. C. ; Juggodumha Debea v. Moneruth
Mookerjea C. S. D. A. R. for 1858, p. 834; Soorodhunnee Dehea v. Doorga-
persad Roy, C. S. D. A. R. for 1858, p. 995 ; Jummoona Dasya v. Bamasoondari
D., I. L. R. 1 Cal. 289; Musst. Shehoo Koeree v. Joogun Singh, 8 C. W. R. 155
(a case of Kritrima adoption). See the Datt. Mim., sec. I., para. 15; Col. Dig.,
Book v., T. 273; 2 Str. H. L. 84, 92, 96; 1 Macn. H. L. 66 ; 2 Macn. H. L.
176, 182, 189; Macn. Con. H. L. 125, 155, 158.
(g) R. Haimun Chull Singh v. Koomer Gunsheam Sing, 2 Knapp, 203;
S. C. 6 C. W. R. P. C. 69; Thakur Oomrao Singh v. Tha Mahtah Koonwar,
2 Agra Rep. 103; Jairam Dhama v. Musan Dhama, 5 C. S. D. A. R. 3.
(/i) Veerapermal Pillay v. Narrain Pillay, 1 Str. R. 91.
(i) Shri Raghunadha v. Shri Brozo Kishore, L. R. 3 I. A. 154, 191.
(k) Collector of Madura v. Moottoo Ramlinga, 12 M. I. A. 396.
(l) Sheo Singh Rai v. Musst. Dakho, L. R. 5 I. A. 87; Asharfi v. Rup,
I. L. R. 30 All. 197.
858 ' , HINDU LAW. [BOOK III,
husband's consent, even though his heirs consent to the
adoption (m).
Similarly an adoption by a widow was set aside for want of
proof of authority for the adoption given by her husband (n), in
the N. W. Provinces. Adoption, without the husband's authority,
gives to the adoptee, before or after the widow's death, no right
to property inherited by her from her husband (o), where this law
prevails.
Where a widow had adopted a boy without authority from her
husband and the consent of the Sapinda had been obtained to an
adoption purporting to be made in pursuance of an alleged authority
and had been influenced by undue considerations, the adoption was
held invalid for want of authority (p).
In the case of Patel Vandrawan Jakesin v. Chunilal (q) it has
been held that in the Marhatta country, as well as in Gujrat, a
widow was competent to adopt without the consent of her
husband's kindred if she received her power bona fide for religious
purposes, and in Vithoba v. Bapu (r) it has been laid down that
the widow of a coparcener can make a valid adoption if permitted
by the father-in-law irrespective of the consent of other
coparceners.
The rule, however, as to an express authority is, as the Judicial
Committee have shown, less exacting than the Dattaka Mimamsa
declares (s).
The existence of brothers is not an obstacle to adoption under
an authority from a deceased husband {t). A Hindu may execute
an instrument giving authority to adopt when he has attained the
(m) Raja Shumshere Mull v. Ranee Dilraj Konioar, 2 C. S. D. A. K. 169.
(n) Musst. Thakorain v. Mohun Lall, N. W. P. S. D. K. N. S. Pt. I., 1863,
p. 362.
(o) Chowdry Padom Singh v. Koer Udaya Singh, 12 C. W. R. P. C. 1;
8. C. 2 Beng. L. R. 101, P. C. ; S. C. 12 M. I. A. 350; Musst. Oodey Koowur
V. Musst. Ladoo, 15 C. W. R. 16, P. C.
(p) Karunahdhi Ganesa Ratnamaiyar v. Gopala, L. R. 7 I. A. 173;
Venkamma v. Subrahmania, L. R. 34 I. A. 22.
(q) I. L. R. 15 Bom. 565; Rakhmahai v. Radhabai, 5 B. H. C. R. 191,
A. C. J.
(r) I. L. R. 15 Bom. 110.
(s) See below, B. 3. 1.
(i) 2 Macn. H. L., p. 180 (Chap. VI., Case 5) ; Sri Raghunada's Case, supra,
p. 857 note (t) ; below, B. 3. 1. Hurkisondas v. Mankorebai, L. R. 34 I. A.
107 ; S. C. I. L. R. 29 Bom. 81.
S. III. B.] ADOPTION BY WIDOW. 859
ordinary age of discretion (v). This the Judicial Committee seem
to have considered the age of majority by law, which would now
be eighteen years (w). But if the capacity to give authority arises
at the same time with the capacity to adopt, that would by some
Hindu lawyers be fixed at the age when religious ceremonies in
general can be fully performed (x).
It seems that a state of indivision between a son and his father
does not affect the validity of an authority given by the former.
In the case of Gobind Soondaree Dehia v. Juggodumba Debia (y)
the suit was on behalf of a son adopted on an alleged authority
from a husband who had died nine years before his father. The
authority was discredited, but the discussion shows that the Court
thought that if genuine it would be valid. This has an important
bearing on the right of the widow, where, as in Bombay, the
assent of the deceased husband is presumed.
B. 3. 1. — Adoption by a Widow under Express Authority
Given by Act Inter Vivos.
An adoption thus authorized needs no sanction by the
relatives (z). A widow may adopt with the consent of her
husband obtained before his decease or with that of his relations
thereafter (a).
An authority to adopt under the husband's hand, though not
complete as a testamentary disposition, is yet evidence of a
declaration of fact (b).
(v) Jamoona Dasya v. Bamasoonderai Dasya Chowdhrani, L. K. 3 I. A,
72, 78.
(w) Act IX. of 1875, sec. 3. The Act does not, however, affect adoption,
see sec. 2.
(x) See Rajendro Narain Lahoree v. Saroda Sundaree Dahee, 15 C. W. E.
548. The attempt to postpone the son's capacity beyond his attainment of
majority approved in R. Huroosoondery v. Coomar Knstonath, 1 Fult. 393,
would not now be sustained.
(y) 3 C. W. K. 66; S. C. 15 ibid. 5 Pr. C.
(z) See Bhasker Bhuchajee v. Naroo Ragoonath, Bom, Sel. E., p. 24
(1st ed.) ; above, B. 3.
(a) Ry Sevagamy Nachiar v. Heraniah Gurhah, 1 Mad. S. D. A. E. 101;:
Arundadi Ummal v. Kupumall, 3 Mad. H. C. E. 283; Collector of Madura v.
Mutu Ramalinga Sathupatty, 1 Beng. L. E. IP. C. ; S. C. 12 M. I. A. 397;
S. C. 2 Mad. H. C. E. 206; Mutsaddi Lai v. Kundun Lai, L. E. 33 I. A. 65.
(b) Brojo Kishoree Dassee for Radhanath v. Sreenath Bose for Judonath;
8 C. W. E. 241; S. C. 9 C. W. E. 463; Mutsaddi Lai v. Kundun Lai, supra.
HINDU LAW. [BOOK III.
Even in the ca&e of the husband's long absence it was said by
the castes in Poona and Khandesh that a wife could adopt only
with the written authority of her husband. If the absence was so
prolonged as to raise a presumption of death the wife might adopt
as a widow (c).
Amongst the Poona Brahmans a widow, it was said, must have
her husband's order, and must also' consult h's kinsmen. In
.other castes it was said the consent of the relatives and of the
caste, in some that the consent of the relatives alone, would supply
the place of the husband's order (d). The leading doctrines on
the widow's substitutionary power of adoption have been thus
stated by the Judicial Committee : — " Mr. Colebrooke's note on
the Mitakshara (Chap. I., sec. XI., art. 9), which has been much
discussed, clearly involves three propositions — First, that the
widow's power to receive a son in adoption, subject to some
conditions, is now admitted by all the schools of Hindu Law except
that of Maithila; second, that the Bengal (or Gaura) school insists
that the widow must have the formal permission of her husband
in his lifetime ; third, that some at least of the other schools admit
the adoption to be valid, if made by the widow with the assent of
lier husband's kindred. The first two propositions are admitted;
but it has been argued for the appellants that on the true
construction of this note, Mr. Colebrooke's authority for the last
proposition is limited to the Mahratta school, in which the
treatise called the ' Mayukha ' is the predominant authority.
Balam Bhatta, however, whom he cites as an authority for a
power of adoption in the widow, wider even than that expressed
in the third proposition, was a commentator of the Benares school.
And the several notes of Mr. Colebrooke at pp. 92, 96, and 115
of the second volume of Strange 's Hindu Law seem to their
Lordships to show conclusively that he considered the doctrine
embodied in the third proposition to be common to the followers
of the Mitakshara in the Benares as well as in the Mahratta
-school, and as such to be receivable as the law current in the
ZiUah Vizagapatam, which lies within the Northern or Andra
Division of the Dravada Country."
" Again Sir Thomas Strange 's statement of the law in his work,
(c) Steele, L. C. 187. A written authority does not seem legally indispens-
able, see below.
id) Steele, L. C. 47, 187.
S. III. B.] ADOPTION BY WIDOW. 861
vol. I, p. 79, is clear and unambiguous. He says : ' Equally loose
is the reason alleged against adoption by a widow, since the assent
of the husband may be given, to take effect (like a will) after
his death; and according to the doctrine of the Benares and.
Maharashtra schools, prevailing in the Peninsula, it may be
supplied by that of his kindred, her natural guardians; but it is-
otherwise by the law that governs the Bengal Provinces " (e).
According to the Benares (Mitakshara) law it was said that the
authority of a husband to a widow for adoption could not be
replaced by that of his heirs after his death (/). The Dattaka
Mimamsa, the Pandits declared, prevailed over the works which
allow a substitutive authority (g). Macnaghten held the same
view; but Colebrooke maintained the sufficiency of the kinsmen's
sanction, and his doctrine was approved by the Judicial
Committee in the Collector of Madura's Case (h).
There is no stereotyped form of authority to adopt (i). It may
be given either orally or in writing (/c).
A deed, containing no words of devise, nor intended by testator
to contain any disposition of his estate, except so far as that
results from adoption of a son under it, is only a deed of permission
to adopt, and not of a testamentary character (l).
Defects in evidence relating to the execution of a deed
authorizing adoption are less material than as to the disposition
of a property by will (m).
B. 3. 2. — Adoption by Widow Under Authority Given by Will,
A will giving power is sufficient authority (n).
A will of a childless Hindu, giving power to adopt, though
(e) The Collector of Madura v. Muttoo Ramalinga Sathupatty, 12 M. I. A.,
pp. 432—33.
(/) Raja Shumshere Mull v. Ranee Dilraj Koonwur, 2 C. S. D. A. R. 169,
ig) See Datt. Mim., aec. I., para. 16; "Viramitrodaya, Transl., p. 116.
{h) 12 M. I. A., at p. 432.
(t) Pritima Soondaree Chowdrain v. Anund Coomar Chowdhry, 6 C. W. E,
133 C. E.
(k) 2 Str. H. L. 95, 96; Gudadhur Pershad Tewaree v. Soondur Koomaree
Debea, 4 C. W. E. 116 P. C. ; Mutasaddi Lai v. Kundun Lai, L. E. 33 I. A. 55.
(l) Musst. Bkoohun Moyee Dehia v. Ramkishore Acharjee, 10 M. I. A. 279;
S. C. 3 C. W. E. 15 P. C.
(m) Jumoona Dassya v. Bamasoondari Dassya, 25 C. W. E. 235 ; 8. C. L. E.
3 I. A. 72.
(n) Sayamalal Dutt t. Soudamini Dasi, 5 Beng. L. E. 362.
862 HINDU L.\W. [BOOK III.
opposed to the interests of the widow or of the next reversionary
heirs of the testator, is not inofficious (o).
A permission given for adoption of a boy as co-heir with a son
cannot be converted into one for adoption after the death of the
natural son (p). It is really void from the first (g).
B. 3. 3. — Positive Command to Adopt.
When a husband has given a positive command, the widow's
capacity to adopt appears in its strongest form as opposed to the
wishes or interests of the kinsmen who will be affected by the
adoption (r). The only question that can be raised in such a case
is that of whether adoption is compulsory. The duty does not
seem to be doubted, but in recent times it has come to be regarded
as one that the Courts cannot properly enforce or at least not
within any particular time (s). A widow directed by her deceased
husband to adopt is bound to give effect to his wishes before she can
claim under the deed of permission framed chiefly for the benefit of
the son she may adopt (t).
A direction cannot be carried out contrary to the law, as
£x. gr. while a son of the husband is living (v).
B. 3. 4. — Choice Prescribed.
It is common for a husband authorizing an adoption to specify
the child he wishes to be taken (w). Should that child die or be
refused by his parents the authority would still be held to warrant
the adoption of another child unless indeed he had said " such a
(o) S. M. Sarroda Dossee v. Tin Cowry Nandy, 1 Hyde E. 223.
(p) Joy Chundro Raee v. Bhyruh Chundro Raee, C. S. D. A. K. 1849, p. 461.
(g) See Padma Coomari Dehea v. Court of Wards, L. E. 8 I. A. 229; and
B. 3. 3. below.
(r) See above, B. 3. and 3. 1.
(s) See above, pp. 813, 814; and below, Omission of Adoption.
(t) Musst. Suhudra Chowdryen v. Goluknath Chowdry, 7 C. S. D. A. E.
143. See above, p. 813; and below, B. 3. 15; B. 3. 37.
(tj) 2 Macn. H. L., p. 199 (Chap. VI., Ca. 19); Bhoohun Moyee's Case,
10 M. I. A. 279.
iw) See above, pp. 813, 814.
S. III. B.] AUTHORITY GIVING QUALIFIED DISCRETION. 863
child and no other." The presumption is that he desired an
adoption, and by specifying the object merely indicated a
preference (x).
A Hindu by will expresses a wish that his wife, after his death,
should adopt the second son of a person, who had only one son
bom alive at testator's death. The widow is not bound to wait
indefinitely till the person begets a second son, but may adopt a
boy of her own choice under the power [y).
When a husband authorizes the adoption of a particular boy
named by him, his widow or any of his widows (if there are more
than one) cannot adopt any other boy so long as the boy thus
designated is alive (z), unless his adoption cannot be carried out (a).
When authority has been given to a widow to adopt the son
of a particular person it is exhausted by his adoption. If he die
it will not warrant another adoption to replace him (b).
A Hindu cannot authorize any other person to adopt conjointly
with the widow or by herself on widow's death. The widow has
the right to adopt, but her selection of the boy may be restricted
by the choice of others nominated by the husband in his will (c).
B. 3. 5. — Authority Giving Qualified Discretion.
The husband sometimes defines the class out of which the
adopted son is to be taken, and failing such, names another class
without prescribing the individual to be adopted. The same
principles of construction would probably be applied in this as in
the last caee.
An instance of a qualified discretion is to be found in the deed
of permission given in Musst. Bhoobun Moyee Debia's Case (d).
(x) Kanuapalli Suryanarayana v. Pucha Venkata Ramana, L. K. 33 I. A.
145.
iy) Veerapermal Pillay v. Narrain Pillay, 1 Str. E. 91. See above, p. 813,
Note (t).
(z) Ramchandra v. Bapu Khandu, Bom. H. C. P. J. 1877, p. 42. We may
add " and not given in adoption." See below, sees. IV. V.
(a) Lakshmihai v. Rajaji, I. L. E. 22 Bom. 996.
(6) Purmanand Bhuttacharuj v. Oomakunt Lahoree and others, 4 C. S. D.
A. E. 318 ; Gout Nath Choudhree v. Anopoorna Choudlioorain, C. S. D. A. E.
for 1852, p. 332.
(c) Amrito Lai Dutt v. Sumomoye Dasi, L. E. 27 I. A. 128.
(d) 10 M. I. A., at p. 281. The same permission is conditional on the death
of the son by birth, and provides for successive adoptions.
864 HINDU LAW. [BOOK III.
In this the selection of a son is directed to be made by preference
from the executant's own gotra, but alternatively from another
gotra.
B, S. 6. — Authority Giving Complete Discretion as to Person,
This is probably the most common form, and it has been held
that under it the widow has a large discretion — or even an
unlimited one — as to whom she will adopt or whether she will
adopt at all (e).
Such an unfettered discretion as to the boy to be adopted was
granted by the Anumati patra, or authority executed by the
husband in the case of Kashee Chundree Mustofee (/). This is
the case most analogous to the assumed permission under which
a widow adopts in Bombay.
B. 3. 7. — Authority to Adopt with Complete Discretion as to
Exercise of the Power.
When a mere permission is given to adopt, should the widow
think fit, the authority is complete, but according to the cases no
obligation rests on the widow beyond the religious one to further
her husband's welfare in the other world {g). She cannot delegate
this power to adopt to any other person (/i).
B. 3. 8. — Conditional Authority.
According to the Hindu Law% a widow who has received from
her deceased husband an express power to adopt a son in the
event of his natural-bom son dying under age and unmarried,
may, on the happening of that event, make a valid adoption.
Thus an authority to adopt, in case the son dies, is valid, it was
held, according to the law of Bengal (t), and the Judicial
(e) See above, pp. 813, 814.
(/) C. S. D. A. Part I. 13 Summ. Cases. The widow, it was directed, was
to adopt on attaining maturity.
ig) See 2 Str. H. L. 97.
(h) Lakshmibai v. Eamchandra, I. L. E. 22 Bom. 590.
(i) Musst. Solukhna v. Ramdolal Pande et al., 1 C. S. D. A. R. 824.
S. III. B.] IMPLIED AUTHORITY. 865
Committee have recently laid down in Kanuapalli Suryanarayana
V. Pucha Venkata Ramana (k) that a widow without special power
for a second adoption can adopt a second son upon the death of a
son first adopted.
In Purmanand Bhuttacharaj v. Oomakunt (i) the authority
was an alternative one between a boy named and a Brahman
boy in case there was a bar to the adoption of the former, and the
widow having adopted a boy under the power, the boy died. She
then adopted another boy, not coming within the above description,
and the adoption was held illegal, as there was no sanction for the
second adoption.
An authority to adopt, in case the son and mother disagree, will
not operate (m).
B. 3. 9. — Implied Authority.
This arises when a husband has begun an adoption but has been
prevented from completing it by death. In Bombay any distinct
intimation of his wish for an adoption would probably be held
sufficient to support an adoption proper in itself, but the kinsmen
have still a right, in an undivided family, to a controlling voice
as to the choice of the boy to be adopted (n).
The adoption of a brother was begun by a husband, and
completed by the widows. The widows were not permitted to
question the adoption, nor the right of the adopted son to adopt
his nephew as his heir after his death (o).
(k) L. E. 33 I. A. 145.
(l) 4 C. S. D. A. E. 318. The precise contingency specified must happen.
Mohundro Loll Mookerjee v. Rookminey Dahey, Coryton's E. 42.
(m) Musst. Solukhna v. Ramdolal Pande et al., 1 C. S. D. A. E. 324. Con-
ditional grants are not favoured by Hindu Law, and here the contingency
provided for is one that should not be anticipated.
(n) Ramji v. Ghamau, I. L. E. 6 Bom. 498.
(o) Ranees RatJiore et al. v. Q. Khosal Sing, N. W. P. S. D. E., Pt. II.
1864, p. 465. In the cases quoted above, sec. III. A. 2. 1, p. 952, the widows
proceeded to complete the adoptions on an implied authority from their
husbands, with whom they had taken part in the initial ceremonies. Suhha
v. Subbammal, 1. L. E. 21 Mad. 497; Lakshmihai v. Ramchandra, I. L. E.
22 Bom. 690.
H.L. 55
866 HINDU LAW. [BOOK III.
B. 3. 11. — Adoption by a Widow — Authority Excluded by
Prohibition or Dissent of the Husband.
Express Prohibition.
The Judicial Committee, recognizing the substitutionary
character of the widow's function in adopting a son, have declared
her exercise of it impossible whenever a prohibition was to be
gathered from the husband's language or conduct.
" It appears to their Lordships that, inasmuch as the authorities
in favour of the widow's power to adopt with the assent of her
husband's kinsmen proceed in a great measure upon the
assumption that his assent to this meritorious act is to be implied
wherever he has not forbidden it, so the power cannot be inferred
when a prohibition by the husband either has been directly
expressed by him, or can be reasonably deduced from his
disposition of his property, or the existence of a direct line
competent to the full performance of religious duties, or from
other circumstances of his family which afford no plea for a
supersession of heirs on the ground of religious obligation to adopt
a son in order to complete or fulfil defective religious rites " (p).
Hence where there is a positive prohibition by the husband a
widow cannot adopt (q), nor where the husband's assent cannot
be implied (r).
Such an adoption will not affect his testamentary disposition in
favour of his brother (s).
(p) Collector of Madura v. Mootoo Ramalinga, 12 M. I. A., at p. 443.
" Although some of the Maratha Schools may use the expression that the
widow may adopt without the consent of the husband, this means simply
without his express assent. The foundation underlying every adoption amongst
Hindus is the consent of the husband. The only difference between the
Schools is that some require that it should be express, and that others are
content with an implied assent, and are ready to imply it if he have neither
said nor done anything inconsistent with such an implication." Per
Westropp, J., in Bayahai v. Bala Venkatesh, 7 Bom. H. C. E. xviii. App.
iq) Malgauda v. Dattu, I. L. E. 37 Bom. 107; Bayahai v. Bala Venkatesh,
7 Bom. H. C. E. App. i. ; Lakshmihai v. Sarasvatibai, I. L. E. 23 Bom. 789;
Patel Vandravan v. Chunilal, I. L. E. 15 Bom. 565.
(t) Narayen v. Nana, 7 Bom. H. C. E. 173 A. C. J. ; Ramachandra v.
Bapu Khandu, Bom. H. C. P. J. 1877, p. 42. See the Sastri's opinion below,
p. 867, note (w).
(s) Janki Dibeh v. Sadasheo Rai, 1 C. S. D. A. E. 197.
S. III. B.] ADOPTION UNDER ASSUMED ASSENT OF HUSBAND. 867
B. 3. 12. — Implied Prohibition or Dissent.
" The Maratha School of Hindu Law permits the widow to
adopt . . . provided [the husband] has neither said nor done
anything which can be regarded as a prohibition to her or a
refusal by himself when in articulo mortis to adopt." The widow
alone has the right to adopt, and a Hindu cannot authorize any
other person to adopt for him with or without the widow's
participation therein (t). She may adopt when her husband has
not intimated his dissent, even without the consent of kinsmen,
at least according to some of the authorities (v), but this is properly
limited in Bombay to the case of a divided family (w).
Where a husband writes to the Collector that his daughters are
his heirs, this may indicate a prohibition on the husband's part to
adoption by the widow while the daughters live or their line
continues {x).
B. 3. 13. — Adoption Under an Assumed Assent of the
Husband.
From the preceding cases it will have been gathered that
authority from the husband, either express or clearly implied,
enables a widow to adopt. On the other hand his prohibition or
(t) Per Westropp, C.J., in Bhagwandas v. Rajmal, 10 Bom. H. C. E. 257;
Amrito Lai Dutt v. Surnomoye Dasi, L. E. 27 I. A. 128.
(v) See above, pp. 783, 796; Patel Vandravan v. ChuniM, I. L. E. 15 Bom.
666.
{w) Ramji v. Ghamau, I. L. E. 6 Bom., at p. 503.
In the case of Virubudru v. Baee Ranee, Morris E., Pt. II., p. 1, a question
was put to the Sastri of the Sadr Court as follows :
" Can a widow of the Nagar Brahman caste adopt a son without having
obtained the permission of her husband?"
The answer was — " If the husband forbade the adoption of a son, the widow
could not adopt; but if he did not prohibit it, it must be understood that he
assented to it. For it is commanded in the Shastr that a person who has no
male issue must adopt a son, and if the widow adopted under such circum-
stances, in the way required by the Shastr, her act would be valid. Some
law-books deny this right to the widow, but the greater number allow it. To
give publicity to the adoption, it should be 'made known to the ruler, though
if this was not done the adoption would not be invalid, if otherwise in accord-
ance with the Shastr." See also Ahajee Dinkur v. Gungadhur Vasudeo,
3 Morr. E. 420.
(x) Collector of Madura v. Mutu Ramalinga Satherpatty, 10 C. W. E. 17
P. C. ; S. C. 1 Beng. L. E. 1 P. C. ; 12 M. I. A. 397 ; 2 Mad. H. C. E. 206.
HINDU LAW. [book III.
dissent, however intimated, so it be decidedly intimated, makes
an adoption impossible (y). The widow does not, except inci-
dentally, adopt for herself, but for her husband {z). The Maratha
doctrine of her capacity when no intimation of his will has been
given by the husband rests on an assumption of his assent to what
would be at once a duty and a benefit to him. The Sastris have
in several cases placed the widow's capacity on this very
ground (a). She continues subordinately the ideal religious
existence of her husband (b), and when he has not expressed his
wishes may express them for him (c), though owing to her
dependence, subject to the approval and control of the surviving
male members of the undivided family (d).
The Sastris, to a question put them by the Court in Thukoo
Baee v. Ruma Baee (e), replied: " Katyayana also says — ' A
married woman (naree) certainly must not act without orders,'
which we conceive to mean, those of a father, husband, and son.
However, a widow has the power of adopting even without the
orders of her husband. A widow destitute of all three legal
protectors, is mistress in her own right of the power both of giving
and receiving."
The Vyavahara Mayukha distinctly declares that the law of
Yajnavalkya as to the dependence of women bears on the wife
as essentially dependent on her husband and only during her
coverture. As a widow she may adopt without the command to
which she is subject only as a wife (/). In the Mankars' Case {g)
the Sastris said a widow could adopt her husband's brother's son,
but no one else, without her husband's authority. Of the nine
iy) See Bhagvandas v. Rajmal, 10 Bom. H. C. E., at p. 257; 2 Str. H. L.
91; Chowdhry Padam Singh v. Koer Udaya Singh, 2 Beng. L. E., at p. 104
P. C.
(z) Ibid. Her spiritual interests are fully recognized, but are considered as
bound up in his.
(a) See above, p. 867, note (w).
(b) Above, pp. 82, 91.
(c) Bhagvandas v. Rajmal, 10 Bom. H. C. E., at p. 257.
(d) Ramji v. Ghamau, I. L. E. 6 Bom., at pp. 502, 503. The Viramitrodaya
contends strongly for the necessity of assuming the husband's assent, while it
recognizes that the assent must be had of the brethren on whom the widow
is dependent. Transl., p. 116.
(e) 2 Borr. 488.
(/) Vyav. May., Chap. IV., pp. 17, 18.
ig) 2 Borr. E., p. 104.
S. III. B.] ADOPTION UNDER ASSUMED ASSENT OF HUSBAND. 869
Pandits consulted in the case (h) two say that the rule of the
Dattaka Mimamsa requiring the husband's express consent is
the one generally followed, but that the Samskarakaustubha and
the Vyavahara Mayukha have established for the Marathas that
a widow may adopt without her husband's order. Four say the
order may be dispensed with. One says the adoption may be
made with the consent of the husband's kindred and of the caste,
or even without any order or consent at all. To this another adds
"provided her husband did not say he wished to have no son
adopted." In the two answers of the Sastris which follow, the
same vacillation may be noticed.
" A widow without her husband's permission may adopt with
the sanction of some senior member of the family " ({).
" An adoption by a widow is not invalidated by want of
permission from the deceased husband or his brother " (k).
Where there is no prohibition, there is a permission on the
husband's part for a widow to give but not to take in adoption,
according to the Bengal Law (I).
The consent or authority of the husband is not indispensable to
adoption by a widow : —
In tlie Dravida country, Madras (m).
In the Saraogi Agarvali caste of Jains (n).
The Sastras of the Jains authorize a widow to adopt without
the sanction of her husband. The age for adoption extends to the
32nd year (o).
The Sastris in the Bombay Presidency have usually favoured
the widow's unfettered power to adopt, as in the two following
instances.
(h) 2 Borr. R., at p. 104.
(t) MS. 1674; Vithoba v. Bapu, I. L. R. 15 Bom. 110.
(k) MS. 1753. In this case the permission of the nearest relative, which in
the previous answer was said to be necessary, is pronounced needless. Laksh-
mihai v. Sarasvatihai, I. L. R. 23 Bom. 789.
(I) Tarini Charan v. Saroda Sundari Dasi, 3 Beng. L. R. 145 A. C. J. ;
S. C. 11 C. W. R. 468; see Datt. Chand., sec. I., paras. 31, 32, and sec. V.
below.
(m) Collector of Madura v. Mutu Ramalinga Satherpatty, 12 M. I. A. 397;
S. C. 2 Mad. H. C. R. 206; see next page.
(n) Sheo Singh Rav v. Musst. Dakho, 6 N. W. P. H. C. R. 382; Mit.,
Chap. I., sec. XI. 9 note; 1 Str. H. L. 79; 2 Str. H. L. 92, 96, 115; Vyav.
May., Chap. IV., sec. V. 17, 18.
(o) Maharaja Govindnath Ray v. Gulalchund et al., 5 C. S. D. A. R. 276;
Sheo Singh Rai v. Musst. Dakho, L. R. 5 I. A. 87.
870 HINDU L.AW. [BOOK III.
" The widow of a member of an undivided family may-
adopt " (p).
" The widows of two brothers may severally adopt " (q).
The adoption by a widow under an authority by her husband
is valid even though it takes place after the birth of a posthumous
child to the other coparcener (r). Her authority is of course
unfettered when she takes as widow of a separated coparcener (s).
" The daughter-in-law may adopt notwithstanding a prior
adoption by her father-in-law " (t).
" A mother-in-law and then the daughter-in-law adopt different
boys. The on© adopted by the daughter-in-law is heir to her
husband " {v).
" There being an adoptive mother and a widow of an adopted
son, the former cannot adopt without special reason " (w).
In a joint family under the Mitakshara a widow may adopt with
the permission of her husband, and so divest his coparceners to
some extent of their estate by introducing another sharer {x).
Under the law which prevails in the Dravida country, a widow
without any permission from her husband may, if duly authorized
by his kinsmen, adopt a son to him in every case in which such an
adoption would be valid if made by her under written authority
from her husband (y). The requisite authority in the case of an
undivided family must be sought within the family, even though
(p) MS. 1650. This means without sanction."
iq) MS. 1750.
(r) Hurkisondas v. Mankorehai, L. E. 34 I. A. 107 ; S. C. I. L. K. 29 Bom. 51.
(s) Ramji v. Ghamau, I. L. E. 6 Bom. 498, F. B. The previous cases are
in this fully discussed. See below, 3, 23 ; 3, 25 ; 3, 33.
(t) MS. 1666; i.e. the widow may adopt to her own husband. But the son
thus adopted would succeed only to his adoptive father's separate property.
The adoptive father's interest in the joint estate merged on his death in his
father's. Such at least is the doctrine favoured by the Courts. See references
in note (s).
(o) MS. 1761. See below, sub-sec. 3, 23. Pudma Coomari Dehi v. Court
of Wards, L. E. 8 I. A. 229; Tarachurn Chatterji v. Suresh Chunder, L. E.
16 I. A. 166.
(w) Above, p. 384, Q. 22.
{x) Surendra v. Sailaji, I. L. E. 18 Cal. 385 ; Bachoo v. Makorebai, I. L. E.
31 Bom. 373, P. C. ; Vithoha v. Bapu, I. L. E. 15 Bom. 110.
(y) Rajah Vellanki Venkata Krishna Rav v. Venkatrama Lakshmi, I. L. E.
IMad. 175; S. C. L. E. 4 I. A. 1.
S. in. B.] ADOPTION BY A WIDOW. 871
the particular property devolving upon the adopted son is to be
held in severalty and not in coparcenary {z).
B. 3. 14. — Adoption by a Widow, a Conscientious Obligation.
It follows from what has been said that the widow is bound in
religion to adopt conscientiously with a view to the benefit of her
deceased husband, not capriciously, or so as to spite the husband's
family. If a suitable boy can be had she ought to adopt from the
husband's gotra, as she is thus most likely to maintain the family
sacra (a). This obligation is not precisely a legal one (b), but if
the widow disregards it without reason and seeks to introduce
an objectionable member into the family the kinsmen may
interfere (c). On the other hand they cannot properly refuse their
assent to the dependent widow who desires to free her conscience
and further her husband's happiness by a fit adoption (d).
The obligation to adopt is one that cannot be legally and directly
enforced even when an express authority or command has been
given by the deceased husband, much less can it be enforced when
no direction has been given. The widow is then left to the
promptings of her own conscience and judgment alono (e).
If a widow in a divided family adopts in the proper and bona
fide performance of a religious duty, and neither capriciously nor
from a corrupt motive, the adoption is good in the Maratha
country, as well as in Gujrat, though without permission of the
husband or consent of .his kindred (/), or even that of the
oo- widow (g).
(z) Ramnad Case, 12 M. I. A. 269 ; Sri Raghunadha v. Sri Brozo Kishoro,
L. E. 3 I. A. 154.
(a) 2 Str. H. L. 98.
(6) See sec. IV.
(c) See Ramji v. Ghamau, I. L. E. 6 Bom. 498.
(d) See above, pp. 864, 881; Steele, L. C. 45; Rakhmahai v. Radhahai,
5 Bom. H. C. E. 181 A. C. J.
(e) See above, pp. 813, 814. Mutasaddi Lai v. Kundun Lai, L. E. 33 I. A.
55.
(/) Bhagvandas v. Rajmal, 10 Bom. H. C. E., at p. 257; Ramji v. Ghamau,
I. L. E. 6 Bom., at p. 501 ; Thuckoo Baee v. Ruma Baee, 2 Borr. 488 (2nd ed.) ;
Patel Vandravan v. Chunilal, I. L. E. 15 Bom. 565.
(g) Rakhmahai v. Radhahai, 5 Bom. H. C. E. 181 A. C. J. ; Rupchand
Rakhmahai, 8 Bom. H. C. E. 114 A. C. J. It is as incumbent on the sapindas
872 HINDU LAW. [BOOK III.
The widow adopting must be a free agent. Constraint or undue
influence will vitiate the adoption (h).
The observations of the Judicial Committee in the Ramnad
case to the effect " that there should be such evidence of the
assent of kinsmen as suffices to show that the act [of adoption]
is done by the widow in the proper and bona fide performance of
a religious duty, and neither capriciously nor from a corrupt
motive," were explained in the sense that " Nice questions are
not to be entertained as to the motives of a widow making an
adoption so long as they are not corrupt or capricious " (f).
B. 3. 15. — Time for Adoption by a Widow.
The religious obligation under which a widow is placed by a
direction to adopt makes it an imperative duty to fulfil her
husband's purpose as soon as possible. But though inordinate
delay has in one or two cases been considered a cause for
preventing widows from reserving to themselves benefits in which
they were intended to have only an incidental share, yet it cannot
generally be said that promptness in adopting is more than a pious
duty. On the other hand the capacity to adopt is not barred by
limitation; it may be exercised virtually at any time during the
widow's life (k).
The sooner adoption is made after the husband's death the
better (I). "A widow should adopt within a year of her husband's
death " [m). The non-exercise, however, by a widow of the right
of adoption for one year after her husband's death does not entitle
his next heir to sue for his share, for during the widow's life he
has no right to present possession (n).
An adoption, fifteen years after the husband's death, under his
to allow a widow to appease her husband's manes as it is on the co-widow to
join in furthering this pious purpose.
(h) Bayahai v. Bala Venktesh, 7 Bom. H. C. E. 1 App. ; Somasekhara v.
Suhhadramaji, I. L. E. 6 Bom. 524, 627.
(t) Raja Vellanki v. Venkata Rama, L. E. 4 I. A. 1.
(A;) Mutasaddi Lai v. Kundun L'al, L. E. 33 I. A. 55.
(I) Verapermal Pillay v. Narrain Pillay, 1 Str. E. 91.
(m) MS. 1734.
(n) Ramanamall v. Suhan Annavi, 2 Mad. H. C. E. 399.
S. III. B.] ADOPTION BY A WIDOW. 873
authority, was held good (o), and even an adoption twenty years
after the husband's death (p).
The presumption against adoption arising from neglect by a
widow to adopt for six or seven years after the death of her
husband (the Eaja of Nattore) was considered not so great as the
presumption in favour of the Raja's having given power to
adopt (q).
B. 3. 16. — Adoption by Widow — Of Husband's Nephew or
Other Sapinda.
Religious feeling usually prompts a husband in giving authority
to adopt to designate a nephew or a member of his gotra either
individually or by class as the person for adoption. He may,
however, designate a stranger as he might adopt a stranger, or
he may leave the choice to his widow's discretion. In the last
case, and in what may in Bombay be deemed the similar case of
no particular intimation of his wishes having been given by the
husband, the widow, like the husband, ought to adopt from
amongst nephews or near kinsmen (r). The Sastris, as has been
seen, have been disposed to exempt her from control if she should
take a nephew, but they have shrunk from pronouncing an
adoption of a stranger duly celebrated invalid. The choice, there-
fore, though subject to control, cannot be deemed legally limited
to any particular family so long as it is made within the caste, and
outside the offspring of sisters and daughters of the husband (s).
In Srimati Uma Deyi v. Gokoolanand Das Mahapatra (t) the
Judicial Committee have held that the adoption of a very distant
relation, not included within the sapindas of the adoptive father,
made in violation of the preferential right of the son of a brother
of the whole blood was valid. The texts which prescribe the
preferential adoption of such son have not the force of law.
(o) East's Notes, Case 10, 2 Mor. Dig. 18.
(p) Musst. Anundmoyee v. Sheeh Chunder Roy, 9 M. I. A. 287; S. C. Beng.
S. D. A. Eep. 1855, p. 218.
(q) R. Chundernath Roy v. Kooer Gobindnath Roy, 18 C. W. E. 221.
(r) Above, pp. 800, 818; sub-sec. 3. 13.
(s) See further on this subject in the next section.
(t) L. R. 5 I. A. 40; S. C. I. L. R. 3 Cal. 587.
874 HINDU LAW. [BOOK III.
B. 3. 17. — Adoption by Widow — Authority in the Case of Two
OR More Widows.
Where there are two widows the hiisband may authorize both
to adopt. In Venhata Narasimha Appa Row v. Parthasarathy
Appo Row (v) their Lordships of the Privy Council have held that
the power given to two widows to adopt jointly cannot be exercised
by only one, even though such an adoption has become impossible
as by the death of one of them. In the absence of an order they
ought both to concur in an adoption. But in case of difference the
elder has the superior right; and the younger cannot, it would
seem, adopt without her senior's authority, except in case of
irregularity on the senior's part causing interference by the
caste {w). Thus the Sastris say:
" The eldest of several widows has the right to adopt. On her
death or disqualification the right passes to the next widow in
order of marriage. She is disqualified by leprosy " (x).
" A man having directed an adoption, the elder widow may
adopt against the wish of the junior " (y).
" The senior widow of a Sudra, though married by pat, has a
preferential right to adopt over the second though married by
' lagna, ' the one ceremony conferring in that caste the same rights
as the other " (z).
" The elder of two widows may adopt though the younger has
a daughter " (a).
A husband gave directions to each of his two wives to adopt.
After his death they divided the property. The elder gave away
her share and died. The younger then adopted a son. The Sastri
said he might recover the aliened share from the donee (b). In
this case if the two widows, as is sometimes supposed, took a joint
estate inalienable and vesting on the death of one widow solely in
(v) L. E. 41 I. A. 51.
(w) Steele, L. C. 48, 187; Rakhmabai v. Rakhahai, 5 Bom. H. C. E. 181
A. C. J.; Ramji v. Ghamau, I. L. E. 6 Bom., at p. 503.
{x) MS. 1669. See above, p. 390, Q. 36.
(y) MS. 1656. An authority cannot be given to each of two widows to adopt
so that there may be two adopted sons at once. See Gosavi Shree Chundravulee
V. Girdharajee, 4 N. W. P. E. 226.
(z) MS. 1655. See above, pp. 391, 394, 404.
(a) MS. 1734. The existence of a daugliter does not in any case. prevent an
adoption.
(b) 2 Macn. H. L. 247, Case XL.
S. III. B.] ADOPTION BY A WIDOW. 875
the other, the donee could not of course have taken anything as
against the surviving widow (c). This does not, however, seem to
have been the view of the Sastri. The performance of the
Sraddhas ought in his opinion to be provided for by adoption, and
the fulfilment of the duty which was incumbent from the
beginning of widowhood defeated the gift made at a later time
and subject to the duty (d).
Where the elder of two widows has assented to an adoption by
the other she cannot herself adopt another boy (e).
B. 3. 18. — Adoption by Widow — Circumstances in which the
Capacity may be Exercised.
These are generally the same as for the husband himself. The
obstacles to adoption by the husband operate equally to prevent
an adoption by the widow. For instance the existence of a son,
either begotten or adopted, or the deceased husband's having died
outcast. The circumstances which bar, or are supposed to bar,
adoption by a widow are more particularly considered below.
Where the elder of two widows has adopted a son the other cannot
during his life adopt another (/). On the death of a son adopted
by the senior widow under authority of her husband, the second
widow may adopt a second son. upon an independent authority
from her husband (g). The authority to make successive adoptions
is considered below.
B. 3. 19. — Adoption by Widow — Son Deceased Sonless.
An authority to adopt is frequently conditional on the death of
a son. It provides sometimes for the event of a first or second
(c) Above, p. 95.
(d) The adoption of a son operates retrospectively as a renewal or continuance
of the adoptive father's existence as to an estate held solely or jointly by the
latter at the time of his death,
(e) Ramchandra v. Bapu Khandu, Bom. H. C. P. J. 1877, p. 43; Suren-
drakeshav Roy v. Doorgasundari Dassee, L, E. 19 I. A. 108.
(/) Steele, L. C. 48. See p. 874 (y) ; Rungama v. Atchama, 4 M. I. A. 1 ;
Mohesh Narain v. Taruck Nath, L. E. 20 I. A. 30; Ramahai v. Raya, I. L. E.
22 Bom. 482.
(g) Shama Chunder et al. v. Narain Deheah, 1 C. S. D. A. E. 209; contra
Narainee Debeh v. Hurkishore Rat, 1 C. S. D. A. E. 39.
876 HINDU LAW. [BOOK III.
adopted son's replacement in the event of his death. In such
cases, it has to be borne in mind, the husband has by no means an
unlimited power of future disposition. The son, whether begotten
or adopted, by his birth or adoption and initiation, acquires rights
and becomes a source of rights, which are regulated and guarded
by the family law so as not to be subject to indefinite modification
at the will of any individual. The authority to adopt cannot be
made a means of upsetting the law on which it rests. Where the
husband has given power to a widow to adopt, on the death of a
natural son, an adopted son, or one adopted by her, the widow
can exercise the authority only when the son dies unmarried, or
leaving no child or widow (h).
B. 3. 21. — Successive Adoptions by a Widow.
Where the son dies unmarried and without having adopted, full
effect can be given to the authority to adopt son after son without
the embarrassment of competing rights, which must arise from a
series of adopted sons leaving widows, each perhaps entitled to
adopt. The difficulty that would arise in the latter case has been
perceived by the Judicial Committee. In R. V. Venkata
Krishnarao v. Venkata Rama Lakshmi Narasaiyya (i), Sir J.
Colville says : " It is not necessary to consider in what way
successive adoptions operate. It is sufficient to say that the law
has established that they may take place." This right she can
exercise despite the fact that the deceased son had attained
ceremonial competence by marriage, investiture, or otherwise (fe).
Where a widow adopted a second son, upon the death of an
adopted son, the Court rejected the suit of the deceased owner's
brother with reference to the uncertainty of the law, in respect of
the right of the presumptive next taker after a Hindu widow, to
a decree, declaring her adoption invalid (1).
(h) Muast. Bhoohun Moyee Dehia v. Ramkishore Acharjee, 10 M. I. A. 279;
S. C. 3 C. W. E. 15 P. C. ; S. C. Beng. S. D. A. E. 1858, p. 122; Thayammal
V. Venkatarama Aiyan, L. E. 14 I. A. 67 ; Pudma Coomari Dehi v. Court of
Wards, L. E. 8 I. A. 229; Gavadappa v. Girimalla, I. L. E. 19 Bom. 331.
(i) L. E. 4 I. A. 1; S. C. I. L. E. 1 Mad. 174.
(k) Venkappa v. Jivaji Krishna, I. L. E. 25 Bom. 306; Gopal v. Vishnu,
I. L. E. 23 Bom. 250 ; Payapa v. Appanna, I. L. E. ibid. 327 ; Kanuapalli v.
Pucha Venkata, L. E. 33 I. A. 145.
(l) Ry Brohmo Moyee v. R. Anand Lall Roy, 19 C. W. E. 419.
S. III. B.] ADOPTION BY A WIDOW. . 877
When not expressly prohibited, a widow may make a second
adoption with the sanction of the kinsmen. If some kinsmen give
sanction, and others withhold it from interested motives, and both
these are equally related to the deceased, the widow can adopt,
acting upon the sanction of those kinsmen who gave it (m).
A second adopted son takes the place of the first, but only if the
first adopted died without issue (n). In an authority to adopt
successively the condition " if necessary " must be understood^
Where an authority had been given to a wife to adopt five sons in
succession, and the son first adopted lived to perform all the sacra,
it was held that on his death unmarried his mother could adopt
to his father (o). This may perhaps be justified on the principle
that there was no widow of the adopted son to take a jointure of
the sacra, but the retrogression of the right to adopt could not be
carried further without introducing confusion (p).
B. 3. 22. — Adoption by a Widow — Simultaneous Adoptions.
As the existence of one son makes the adoption of another
illegal, the attempt to adopt two sons at once has been pronounced
invalid as to both {q). It could indeed be no more regarded as
generally possible than the simultaneous marriage of two or more
wives under a law of monogamy.
(m) Parasara Bhatar v. Rang Raja Whatar, I. L. E. 2 Mad. 202 ; see also
Rakhmahai v. Radhahai, 5 Bom. H. C. K., at p. 191. This shows that the
authority to give or withhold sanction is not a right of property, but simply a
part of the religious and family law.
(n) Shama Ghunder v. Narain Deheah, 1 C. S. D. A. E. 209.
(o) Ram Soondur Singh v. Surhanee Dossee, 22 C. W. E. 121 C. E.
(p) See below, B. 3. 23; B. 3. 25.
(g) Akhoy Ghunder Bagchi v. Kalapahar Haji, L. E. 12 I. A. 198; S. C.
I. L. E. 12 Cal. 406; Surendrakeshav Roy v. Doorgasunderi Dassee, L. E.
19 I. A. 108; Gyanendro Ghunder Lahiri v. Kalla Pahar Hajee, I. L. E. 9
Cal. 60; Monemothonauth Day v. Ouauth Nauth Day, Bourke's E. 189; S.
Siddesory Dosee v. Doorgachurn Sett, Bourke 360; Bhya Ram Singh v. Agur
Singh, 1 N. W. P. H. C. E. 203; Senkol Tevan v. Aurlanada Ambalakaran,
M. S. D. A. E. for 1862, p. 27.
878 HINDU LAW. [BOOK III.
B. 3. 23. — Adoption by a Widow — Circumstances which Bar
Adoption.
It follows from the delegated or substitutionary character of the
widow's authority to adopt (r) that the impediments to adoption
external to the husband which affect adoption by him equally
affect adoption by the widow. And as she has to perform an act
of intelligence of sacred import, she must in her own person satisfy
the conditions requisite to make such an act effectual. The
circumstances in which the power can or cannot be exercised have
already been considered. Amongst these might have been placed
the existence of vested interests as viewed from the negative side,
but this recently developed doctrine having been usually discussed
by the Courts with reference to its positive operation as a bar
to adoption or as depriving adoption of its usual consequences,
will be here treated from the same point of view.
The principle now generally accepted by the Courts that a
widow cannot adopt so as to defeat a vested interest (s) is not to
be found in that form in the Hindu authorities (t). It has been
taken in two senses : (1) that the adoption under such circum-
stances is void, and (2) that though not void its regular effects
are limited so as not to divest the vested estate. There has been
a difference of views also as to whether the husband's authority
does or does not make the rule inapplicable. It is almost inevitable
that an adoption by a widow should cause some loss to kinsmen
or contingent reversioners, and the principle has again been varied
so as to make the consent of the parties thus interested or of a
majority or of some of them necessary (v). In Bengal the widow
(r) See 2 Str. H. L. 88, 91, 92, 94.
(s) Tarachurn Chatterji v. Suresh Chunder Mookerji, L. K. 16 I. A. 166;
Thayammal v. Venkatarama Aiyan, L. E. 14 I. A. 67; Gopal v. Vishnu,
I. L. K. 23 Bom. 250; Bhimabai v. Murar Rao, I. L. E. 37 Bom. 598; Payapa
V. Appanna, I. L. E. 23 Bom. 327 ; Rupchand v. Rakhmahai, 8 Bom. H. C. E.
114.
(t) A mere descent cast makes no difference except when a son has taken
the estate and left a widow. A right so devolved cannot be displaced by an
adoption even under an express authority from the deceased son's father by his
mother. See Bhoohunmoyee Dehia's Case, 10 M. I, A. 279, quoted in Rajah
Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi Narsayya, L. E,
4 I. A., at p. 9.
(v) See The Collector of Madura v. Muttu Ramalinga Sadhupatty, 12 M. I. A.
397; Sri Raghunada v. Sri Brozo Kishoro, L. E. 3 I. A. 154, 191, 192; Ramji
V. Ghamau, I. L. E. 6 Bom. 498, 601.
S. III. B.] ADOPTION BY A WIDOW. 879
takes a life estate though not more even in an undivided family.
If she adopts under a licence from her husband she deprives his
brethren of the succession. In Bombay she takes the succession
only in a divided family, but an adoption by her defeats the estate
which otherwise must go to the heirs next in succession at her
death. She may have a daughter or a daughter's son taking,
according to the prevailing theory, from her deceased husband. It
is inconsistent with the theory of her position as not being a source
whence succession is derived that she should have a power of
defeating at her pleasure that succession which the law approves,
but this has by the decisions been conceded to her.
The adoption of a son operates retrospectively (w). He is looked
on in the light of a posthumous son, and though a widow cannot
adopt with the consequence of giving effect to a fraud (x), yet
there is nothing unreasonable in the loss of an estate divested by
an adoption when the estate has from the first been subject to
that kind of defeasance. The defeasance arises from what is in
theoiy a deferred act of the deceased adoptive father, who could
always have adopted had he lived, and whose spiritual life is
continued by his widow.
In Bhoohunmoyee Dehia's Case the divesting of an estate was
put forward by Lord Kingsdown rather perhaps as an illustration
of the inconvenience that would arise from adoptions creating new
collateral heirs thaai as a thing in itself impossible under the Hindu
Law (?/). In other cases the inconvenience has been made a ground
for a supposed prohibition (z). It is true that in many instances
the supposed prohibition coincides in its operation with the actual
principles of the Hindu Law as drawn from the Hindu sources, but
in others it does not. It is desirable therefore that these principles
and their bearing on the matter in question should, if possible, be
(w) The common statement has been adopted. Its proper sense is that an
adopted son is regarded as a continuator of the adoptive father's personality as
to his property and sacra whether separate or in a united family. The adoption
is not retrospective for the purpose of enabling the son to take back a property
which his father had not, and which between the father's death and the
adoption has been given by the law to some other separated relative or branch
of the original family.
(x) See above, pp. 348, 349.
(y) See also Sri Raghunadas's Case, L. E. 3 1, A., at p. 193.
(z) See The Collector of Madura's Case, 12 M. I. A. 397; Rupchand v. Rakh-
mahai, 8 Bom. H. C. E. 114; Rally Prosono GJiose v. Gocoolchundra Mitter,
I. L. E. 2 Cal. 307.
880 HINDU LAW. [BOOK III.
ascertained and established. The sacra of a Hindu family are
regarded as descending regularly with its estate from father to
son for ever. The birth and the initiation of the son make him the
joint or the sole depositary of this group of connected rights and
obligations. He is bound to provide for his father's sraddhas : he
is entitled to the due performance of his own. The proper celebrant
is a son begotten or adopted ; but if the estate passes to a remoter
heir the duty goes with it. The last holder — though no ceremonies
are so effectual as those performed by a son — yet receives such
benefit as is possible from the actual successor to the property.
Now by an adoption higher in the line this blessing is lost. The
son adopted, for instance, by the mother of one deceased performs
a father's sraddhas for his ceremonial father, but not for his
ceremonial brother. The latter is thus, according to Hindu
sentiment, placed in a worse position than if there had been no
adoption at all. If the deceased have left a widow, it is she alone
who, as partner during his life of his sacra, and capable of
continuing them after his death, can in accordance with theory
adopt a son. The son is her son as well as her husband's. Even
in his life both ought to concur in an adoption. The books say
nothing of a husband, even in his life, authorizing an adoption
by anyone but his wife, and Sir M. Westropp was fully warranted
in stating that there is no authority for anyone but the widow
to adopt a son to her husband after his death (a). She only could
legally have joined in procuring the son by birth who is replaced
by the adopted son, and the imitation of nature thus points her
out as solely endowed with the faculty of adoption when her
husband can no longer exercise it.
There are thus strong reasons, though the Sastris seem in a
few instances not to have sufficiently adverted to them (h), why
adoption by a mother to her son should be disallowed (c), and why
an adoption by her to her deceased husband should not be allowed
to supersede the right of the deceased son's widow. The reasons do
not at all rest on a devesting of the junior widow's estate, but the
preservation of her estate is incident to her exclusive faculty
of adoption. If the view here taken is correct, a mother succeeding
to her son after the son's investiture (upanayana) is not the more
(a) Bhagvandas v. Rajmal, 10 Bom. H. C. E., at pp. 257, 258.
(h) See 2 Str. H. L. 93, 94, 95. See below, sub-sec. 3. 26.
(c) See above, sub-sec. 3. 13; Krishnarav v. Shankar Rav, I. L, K. 17 Bom.
164.
S. III. B.] ADOPTION BY A WIDOW. 881
capable of adopting a son to him because she devests no estate
but her own, but a case to the contrary is referred to below {d).
There are cases, however, in which an only son or an adopted
son dies unmarried or married without leaving a widow or issue.
She may then adopt a second and a third son, even though the
first and the second might have attained ceremonial competence
by marriage, investiture, or otherwise, provided she does not
thereby derogate from any other right (e). To this qualification
there are four exceptions, viz., (1) when a widow adopts to the
detriment of her co-widow (/), (2) when a mother succeeds as
heir to a son, legitimate or adopted, married but leaving neither
a widow nor issue, or unmarried, (3) when an adoption takes place
with the full assent of the party in whom the estate has vested by
inheritance, e.g., a daughter-in-law adopting with the consent of
the father-in-law (g), and (4) when there has been ratification by
conduct or acquiescence (h).
When the deceased husband has died as a member of an
undivided family the faculty of adoption is still peculiar to the
widow. But as a consequence of her general dependence she
cannot exercise this faculty without the approval of the kins-
men (z), except where that approval is improperly withheld (k).
The sanction is not necessary where the husband has given her
authority to adopt, and especially where he has himself designated
the boy for adoption. In such a case the vested interests of the
kinsmen are displaced by the adoption, whether they approve it or
not (l). This shows that the need of their sanction does not arise
(d) Bykant Monee Roy v. Kisto So&nderee Roy, 7 C. W. K. 392 C. E. See
the remarks of Melvill, J., in Rapchand v. Rakhmahai, 8 Bom. H. C. E.,
at pp. 118, 123 A. C. J.
(e) Venkappa v. Jivaji Krishna, I. L. E. 25 Bom. 306; Musst. Bhoohun-
moyee Dehia v. Ramkishore Acharji Chowdhry, 10 M. I. A., at p. 310; Rajah
Vellanki Venkat Krishnarav v. Venkatrama Lakshmi Narsayya, L. E. 4 I. A.
1; Vasdeo v. Ramchandra, I. L. E. 22 Bom. 551, F. B.
(/) Bhimowa v. Sanjawa, I. L. E. 22 Bom. 206.
ig) Vithoha v. Bapu, I. L. E. 15 Bom. 110.
(h) Payapa v. Appanna, I. L. E. 23 Bom. 327 ; Gopal v. Vishnu, I. L. E.
23 Bom. 250.
(t) Shri Raghunadha v. Shri Brozo Kishore, L. E. 3 I. A. 191.
(k) See Rakhmahai v. Radhahai, 5 Bom. H. C. E. 181, 188; above, pp. 783,
796.
(l) See Sri Raghunada v. Sri Brozo Kishore, L. E. 3 I. A. 154, 173; Dinkar
Sitaram Prahhu v. Ganesh Shivaram Prabhu, I. L. E. 6 Bom. 505; Govind
Soondaree Dehea v. Jugganunda Dehea, 3 C. W. E. 66 ; 15 I. A. 5.
H.L. 56
882 HINDU LAW. [BOOK III.
from their rights in the property but from their family relation
to the widow. Their authority may be likened to that sometimes
given to a girl's guardian under the English Law to give or to with-
hold his sanction to her marriage. This, though its exercise may
greatly affect his own fortune, is not a right of the guardian which
he is at liberty to use for his personal enrichment. He is bound
to uise it conscientiously, and failing to do so he may be superseded.
So the Hindu kinsmen must not withhold their assent to an
unobjectionable adoption merely because it will introduce another
sharer of the estate (m). The widow is bound (at least religiously)
to seek a son within the family. When she does so the family is
not in any way impoverished by the adoption, but if she is forced
to go out of the family for a son the kinsmen have still not a
right of property to exert or to forgo, but a faculty to exercise (w),
which they must use to the advantage of the family at large, but
especially of the deceased member. Such a sanction it has been
held is sufficient as affords a reasonable guarantee that the widow
has acted with moderate prudence and conscientiousness (o). If
the sanction were a right resting on property the infant co-members
would have to be consulted through their guardians, and might
have a right to disapprove at a later period what had been
improvidently allowed in their infancy, but no provisions to this
effect are found in the law books.
The son united with his father may have died childless before
him. His joint interest in the property and the sacra then reverts
to the father, who may adopt a son and make him heir as he might
have begotten a son. In such a case, as the deceased never had
an independent right, being unseparated from his still living father,
his widow cannot adopt without the sanction of her father-in-law.
On the other hand the father-in-law, who has sanctioned an
adoption by his son's widow, and thus given himself a grandson,
cannot afterwards adopt a son. If he first adopts a son to himself
he may still sanction an adoption to his deceased son. If he dies
without either adoption having been made it might seem that the
where the inquiry into the fact of the authority would have been needless
unless it would operate if proved. Steele, L. C. 176.
(m) Above, pp. 783, 795, 814, 871.
(n) See The Collector of Madura v. Moottoo Ramalinga Satthupatty, 12
M. I. A., at p. 442.
(o) See Gopal v. Naro, 7 Bom. H. C. K. xxiv. App. ; and RakhmahhaVs
Case, supra.
S. III. B.] ADOPTION BY A WIDOW. 883
right would pass rather to his widow, should he leave one, than to
his daughter-in-law. The replies of the Sastris, however, favour the
right of the daughter-in-law even during the father-in-law's life,
giving to her adopted son rights equal or superior to those of the
son adopted by the father-in-law (p),- according to the earlier or
later adoption of the latter. .On the death of the father-in-law
without adoption they prefer to his widow the widow of his son, by
whose adoption the manes of both father and eon may be
appeased (q). A daughter-in-law, the widow of a pre-deceased
son, can make a valid adoption with the contemporaneous consent
of her mother-in-law, in whom the estate of the last full owner
has vested as her heir (r).
Where two or more united brothers have died in succession and
sonless the household sacra in which they were jointly interested
must have devolved solely on the one who survived the other. In
such a case the widow of the last deceased as a sharer, though in
a minor degree, of his ceremonial virtue, and having with him in
his life a joint capacity to adopt, according to the religious view,
is the proper person to adopt to her husband, and so devolve the
family sacra centred in herself. The wife of the predeceased
united member, however, had with him a joint interest in the family
sacra, though this was never so developed by his separation as after
his death to give efficacy to her substitutionary acts on account of
a new family (s). The common sacra centre on the death of one
in the surviving members of the united family : the widow is
spiritually and temporally dependent, and cannot adopt without
the assent of the brethren. If all have died, the widow of the last
has succeeded, so far as a woman can, to the sacra of the family,
but she has not a superiority corresponding to that of her husband
over the widow of a predeceased member, and enabling her to
approve or disapprove an adoption by that widow (t). Such an
adoption is, according to one view, no longer feasible when no
one is left to give the requisite sanction. Though a widow has the
sole faculty of adopting to the deceased husband, this faculty
(p) See above, p. 354, Q. 13, to which the remarks in the text apply, and
sub-section B. 3. 13 of the present section.
iq) See a decision to the same effect in sub-sec. 3. 26.
(r) Siddappa v. Ningangavda, I. L. E. 38 Bom. 724.
(*) See above, p. 338.
(t) That a widow is subject to control only by near male relatives appears
from the answer in Thukoo Baee's Case, quoted above, p. 868.
884 HINDU LAW. [BOOK III.
cannot be exercised in a united family except with the assent of
the male members. On their extinction the faculty is virtually
gone.
According to the other and the approved view, the widow, by
the death of her husband's former co-members of the family, is
merely freed from a control which they might exercise for her
good during their lives. She may then adopt at her own discretion,
as no controlling power is attributed to the widow of one deceased
member over the acts of another (v). Nor is she subject to the
control of an infant member incapable of discrimination. This
view is the one more consonant to the doctrines of the
Nirnayasindhu, the Samskarakaustubha, and the Dharmasindhu,
admitting that any sanction at all is necessary to adoption by a
widow. The Vyavahara Mayukha recognizes the need of a sanction
while there are qualified persons present to give or withhold it but
not otherwise (w).
In a divided family the ties of mutual dependence and support
arc much less close than amongst united kinsmen. According to
the doctrine of the Mitakshara the widow of a separated member
takes his estate in full ownership, and becomes herself, though in
her husband's family, a new source of inheritance (a;). According
to the now prevailing Bengal doctrine she takes only a life interest,
but still during her life the estate is completely vested in her {y).
Thus there are no immediate interests to impede her freedom as to
adoption. But the division of the once united family has been
necessarily attended with a separation in the performance of the
daily sacrifices and the other periodical rites, community in which
is the central point of family union (z). The husband who has
once been a celebrant of the sacra for himself alone cannot have
lost the capacity and the obligation except by the process of
reunion. If as usual he has died separated his sacra pass to his
son, and in default of a son to his widow (a), who in her turn may
{v) See the opinion of the Sastris in Thukoo Baee v. Ruma Baee, cited above
in sub-sec. B. 3. 13.
(w) See Bayahai v. Bala Venktesh Ramakant, 7 Bom. H. C. E. App. xii. ;
Vyav. May., Chap. IV., sec. V., para. 18.
(x) See above, pp. 308, 309, 473, 484, 712.
(y) Above, p. 89.
(z) See above, pp. 638, 773; Sri Raghunada's Case, L. R. 3 I. A., at p. 191.
(o) Above, pp. 87, 250.
S. III. B.] ADOPTION BY A WIDOW. 885
impart the requisite faculty by adoption. As no one shares the
sacra there is no joint interest on which an interference with her
discretion can properly be grounded (b). A tradition of the
necessary dependence of women still exacts from the widow a
decent regard for the interests and wishes of the family at large
notwithstanding the partition that has taken place, but as on the
one hand she cannot urge her connexion as a ground for a right
to maintenance in distress (c), neither can the kinsmen on the
other hand urge it as a ground for legal control of her faculty of
adoption (d).
These considerations apply to the actual estate of the deceased
husband, whether joint or separate. If the deceased husband had
no ownership of an estate in question, either as being individually
separate or as being a member of a branch separated from the one
to which the estate belonged, it is obvious that he had no sacra
which that estate was bound to sustain. He might, had he
survived, possibly have come in as the nearest collateral on the
extinction of the proprietary branch, but when in his absence
another has succeeded, that other has assumed the whole of the
sacra connected with the estate he has taken (e). No participation
in them belongs to the widow of the predeceased which she can
impart to a son by adoption. One separated collateral cannot
therefore be ousted by an adoption made after his succession by
another collateral's widow. Much less can any one representing
the proprietary branch undivided in itself be thus superseded.
It accords with the views just stated that if a Hindu husband
gives to his wife an instrument of permission to adopt, should she
be left a widow, and if he has born to him a eon, who survives
him, and if this son dies leaving a widow in whom the estate is
vested, the power of adoption given to the mother-in-law is
incapable of execution and is at an end (/).
(b) See Viramitrodaya, Transl., p. 267.
(c) Above, pp. 230, 236.
{d) Ramjee v. Ghamau, I. L. E. 6 Bom., at pp. 602, 603.
(e) See the opinion m Bamundass Mookerjia v. Mt. Tarinee, 7 M. I. A., at
p. 188; and above, pp. 63, 350, 554:.
(/) Padma Kumari Debt Cliowdhrani et al. v. Jagatkishore Acharjia
Chowdhri, I. L. E. 8 Cal. 302 P. C.
886 HINDU LAW. [BOOK III.
B. 3. 24. — Adoption by a Widow — Circumstances Barring
Adoption as in the Case of a Male.
'* A widow cannot adopt while a previously adopted son is
alive" {g).
A son by her co-wife prevents adoption by a widow equally
with one bom of herself (h).
" The widow cannot adopt two sons, because the adoption of
the first creates an immediate change of the essential condition
of sonlessness " (i).
The existence of an adopted son is a bar to another adoption
(though under power from the husband), by a widow, as well as to
one by a husband himself {k).
A husband abandoned his wife, who became a Moorlee. By
his second wife he had a son. The first wife adopted a son. This
was held invalid (l).
Adoption by a Hindu in concert with his senior wife, it was
said, supersedes the original permission given by him to each of
his two wives to adopt a son for each, unless after the adoption he
expressly confirmed the permission to his junior wife to adopt (m).
B, 3. 25. — Adoption by a Widow — Not to Defeat a Vested
Estate.
Though the Hindu authorities do not furnish such a rule, it must
now be accepted perhaps as a principle established, or at least
strongly favoured by the decisions, that adoption cannot be made
to devest or defeat an inheritance already vested (n), except in
(g) MS. 1664. See above, sec. III. B. 3. 18; B. 3. 19.
(h) Above, p. 489.
(i) MS. 1671. Mohesh Narain v. Taruck Nath, L. E. 20 I. A., 30.
(fe) Gopee hall V. Mussi. Chundraolee Buhoojee, 4 N. W. P. E. 226; S. C. in
Appeal, L. E. Supp. I. A. 131, and 19 C. W. E. 12 C. E.
(I) MS. 113.
(m) Goureepershad Raee v, Musst. Jymala, 2 C. S. D. A. E. 136; Macn.
Con. H. L. 181, 182; 2 Str. H. L. 61. The permission could not operate while
the son actually adopted was alive.
(w) Annammali v. Mahhu Bali Reddy, 8 Mad. H. C. E. 108; Kally Prosonno
Ghose V. Gocool Chunder, I. L. E. 2 Cal. 295 ; Rupchand Hindumal v. Rakh-
mahai, 8 Bom. H. C. E. 114 A. C. J. See the discussion above, sec. III.
B. 3. 23; Gayabai v. Shridharacharya, Bom. H. C. P. J. 1881, p. 145; Thay-
ammal v. Venkatarama Aiyan, L. E. 14 I. A. 67 ; Tarachurn Chatterji v.
Suresh Chunder Mookerji, L. E. 16 I. A. 166.
S. III. B.] ADOPTION BY A WIDOW. 887
four cases mentioned in Payapa v. Appanna (o) and Gopal v.
Vishnu (p). The Hindu rule seems to be this, that when a deceased
was an actual co-owner or sharer in interest in an estate in
question, his son received in adoption, whether by himself or by
his widow, takes his place. When he was separated and the law
has given the estate of his deceased relative to some one else, the
succession having passed by his line, cannot be recovered, because
there is no authority for taking the estate from the hands into
which it has fallen. The same principle is applied in the case of
a blind or dumb man's son. Such a man cannot be an actual
coparcener. There is a rule allowing his son to take his place in
a partition, but when once the partition has been made, the son
subsequently born or adopted is not remitted to a right which did
not subsist in his father {q). The particular rule, like that giving
an estate to the existing collaterals, is not accompanied by any
proviso in favour of subsequently adopted sons. In a united family
there is a remitter through the identification in interest of the
son with his father who died a co-sharer.
A widow (having legal power to adopt from her husband) (r)
cannot adopt so as to deprive or defeat an inheritance or interest
already vested in a widow of a son, natural or adopted, who
survived his father (s), or in the son of such a son (t), or in the
heirs of the adoptee's grand-uncle by adoption, who had succeeded
to the grand-uncle's property upon the death of his widow {v).
Where the estate has come down to the widow of the last male
survivor of the husband's family prior to the adoption [w), it might
seem that an adoption by a widow of a previously deceased
coparcener could not be made so as to defeat the vested estate.
This, however, will depend on the different views discussed
above (x). A new line cannot be substituted by adoption to take
(o) I. L. E. 23 Bom. 327.
(p) I. L. E. ibid. 250.
(g) See Bapuji Lakshman v. Pandurang , I. L. E. 6 Bom., at p. 620.
(r) i.e. where such power is essential.
(s) Musst. Bhoobun Moyee Debia v. Ramkishore Acharjee, 10 M. I. A. 279;
S. C. 3 C. W. E. 15 P. C. ; S. C. Beng. S. D. A. E. 1858, p. 122; Krishnarav
V. Shankar Rav, I. L. E. 17 Bom. 164.
(t) Thukoo Baee v. Ruma Baee, 2 Borr. 488 (2nd ed.) ; Ramkrishna v.
Shamrao, I. L. E. 26 Bom. 626.
(v) Rally Prosonno GJiose v. Gocool Chunder, I. L. E. 2 Cal. 295.
(w) Gobind Soonduree Debia v. Juggodumba Debia, 3 C. W. E. 66; S. C. 15
C. W. E. 5 P. C.
(x) Sec. III. B. 3. 23. And see above, p. 560.
888 HINDU LAW. [BOOK III.
what a natural-born son would not have taken (y) ; but there does
not seem to be anything in the Hindu Law to prevent his taking
what a natural-born son would have taken at the moment of his
birth or of his father's death. In Bhoohun Moyee Dehia's Case
the adoption was in itself invalid, but if it had been made by the
widow of one brother or cousin after the estate had descended to
the widow of another the right of- the former to adopt to her
deceased husband, which had always subsisted, would not,
according to the prevailing Hindu notions, be extinguished by
failure of the male members. It would only be freed from a
condition arising from the widow's dependence while they lived.
The only theory on which the prohibitive right of the widow of
the last full owner can be sustained seems to be that the sacra
along with the estate centred in the widow's husband and have
centred in her, so that she is religiously bound to continue the
family by adoption, and to retain the estate for the benefit of the
son to be adopted. His adoption operating retrospectively wiU
make the estate devolve wholly upon him as his adoptive father's
heir, and the adoption of a son by the widow of a predeceased
member being made subject to the contingency of the adoption
of a son to the last deceased may be deemed subject to the approval
of the latter's adopted son as the male sapinda on whom she is
dependent. The law books and the practice of the people do not,
however, support such a theory as this : they rather allow and
encourage an adoption by a widow duly authorized without
sanction when there is no one to give or to withhold it, though such
an adoption made by the widow of a separated collateral after the
estate has passed to another collateral, will not serve to create
for the adopted son an estate in possession in which his father had
no more than a contingent interest. When it has passed to a
collateral separated in interest it has passed for good as against
a collateral who, when it passed, had no share or interest (z).
There is in the last case a break in the succession as contrasted with
the ideal continuity of interest amongst all the members of a
united family (a). A right in possession is kept alive by the
widow's constant capacity to adopt, so as to blend an additional
element retrospectively with the united family, but a mere
possibility once extinguished cannot be revived. Thus adoption
iy) See Musst. Bhoohun Moyee Dehia's Case, 10 M. I. A., at p. 311.
(z) Comp. above, pp. 645, 554.
(a) Above, pp. 63, 561.
S. III. B.] ADOPTION BY A WIDOW. 889
in a separated branch cannot divest the estate which the law gave
to tho then nearest collateral, and which has passed unshared to
him who has it. But within a group of united brethren the widow
of one may adopt so as to devest an estate wholly or in part {h).
Much more, it would seem, may the widow of one united in interest
with the last holder adopt so as to devest the estate that has
passed to a mere collateral never united with the deceased (c).
The latter will necessarily be much more completely represented by
a son of a united brother than by a mere collateral, whose own
right may be that of an adopted son or have descended through
an adopted son. In one case it has been held that the adoption
by a widow could not give to the adopted son the position of a
co-sharer with a united brother of her deceased husband (d). The
adoption would certainly need the sanction of the surviving
brethren unless this should be improperly withheld (e). In the
case cited as a precedent (/) a son had died before his father but
leaving a widow who adopted a son thirty-five years after her
father-in-law's death. She had recognized his nephews as
members with him of an undivided family, and she could not
adopt without their assent unless it were improperly withheld (g).
On the death of the son before his father his proprietary right
had wholly merged in his father's (h). He had never had separate
sacra, and it might perhaps be contended that therefore the widow
never had a right to adopt (i). The Sastris, however, recognizing
the joint interest of the son in the estate and the sacra, and his
claim to the due celebration of his Sraddhas by a son, favour this
right of a predeceased son's widow. They do not think it excluded
by the existence of a widow or a daughter of the father-in-law,
much less by the existence of remoter heirs to whom the estate has
passed away from the direct line of the deceased (k). In the case
of co-sharers standing on an equal footing the Indian lawyers
(6) See Sri Raghunadha's Case, L. E. 3 I. A. 154. It is not regarded as
devesting any more than a birth after a long gestation would be so regarded.
Hurkisondas v. Mankorehai, L. E. 34 I, A. 107.
(c) This competition may arise in the case of a raj or a vatan.
(d) Govind v. Lakshmihai, Bom. H. C. P. J. 1882, p. 12.
(e) Payapa v. Appanna, I. L. E. 23 Bom. 327.
(/) Gayahai v. Shridhara Charya, Bom. H. C. P. J. 1881, p. 145.
(g) Above, sub-sec. 3. 13.
(h) Udaram Sitaram v. Ranu Panduji, 11 Bom. H. C. E., pp. 76, 86.
(t) See above, B. 3. 23.
(k) See above, B. 3. 13, pp. 867 ss.
890 HINDU LAW. [BOOK III.
certainly do not recognize any obstacle to adoption by the widow
of one as arising from the estate on his death having vested in
the other (I), nor apparently would the Judicial Committee (m)
countenance such a doctrine.
Though a cousin cannot sue, as next heir, to set aside an
adoption, he has a right to question it if he takes under a deed
such an interest as may be affected by the adoption (n).
An estate being once vested cannot, it was said, be devested by
a subsequent adoption in a collateral line (o) even when the
adoption has been prevented by the fraud of him who has taken
the estate through the absence of an adopted son.
B. 3. 26. — Adoption by a Widow — Her Capacity as Affected
BY Her Age.
Generally a widow cannot adopt until she has attained
maturity (p). This is an instance of the imitation of nature which,
however, is in some castes not closely adhered to (q). In these
there may be an earlier taking, but the celebration is postponed
until the time of possible maternity. It shows how adoption is
regarded as almost exclusively the husband's affair, that under an
authority from him an infant widow may adopt. " A widow of
10 years, unshorn, and not yet arrived at puberty, may, in
pursuance of her husband's wish or assent, adopt from another
gotra, though there be a non-assenting undivided brother of the
(l) See above. They regard death " without male issue " (see p. 560) as
not having occurred until the death of the widow makes adoption impossible.
(m) See Sri Raghunadha's Case, supra.
(n) Brojo Kishoree Dassee v. Sreenath Bose, 9 C. W. E. 463; S. C. 8
C. W. E. 241.
(o) Nilcomul Lahuri v. Jotendro Mohun Lahuri, I. L. E. 7 Cal. 178, referring
to Keshuv Chunder GJiose v. Bishun Pershad Ghose, C. S. D. A. E. 1860,
Pt. II., p. 340; Sreenarain Mitter v. Sreemutty Kishen Soondery Dassee, 11
Beng. L. E. 171, P. C. ; Kally Prosonno Ghose v. Gocool Chunder Mitter,
I. L. E. 2 Cal. 295; above, pp. 349, 350; and Sri Raghunadha's Case, L. E.
3 I. A. 154. In the last case it will be noticed that subsequent adoption
deprived of an estate an undivided brother in whom it had fully vested. See
also sub-sec. 3. 26 below. Shri Dharmidhar v. Chinto, I. L. E. 20 Bom. 250.
(p) Steele, L. C. 48.
(g) Steele, L. C. 187.
S. III. B.] ADOPTION BY A WIDOW, 891
husband surviving " (r). By the usages of the sect of Sarogees,
adoption at the age of nine years is vahd, and on the death of an
adopted son without issue, during the lifetime of the adoptive
mother, the father's right of adoption vests in the widow and not
in the mother (s).
' ' A mother-in-law cannot legally compel her daughter-in-law
under age to adopt against her will. If she has compelled an
adoption by undue pressure the daughter-in-law can adopt
again " (t). Undue influence indeed invalidates an adoption in
every case (v).
B. 3. 27. — Adoption by Widow — Capacity as Affected by
Intelligence.
Where the husband has given an express direction the cases
immediately preceding seem to show that his wishes may be
carried out by a child widow. When a discretion has to be
exercised general principles would require that a certain degree
of understanding should have been attained before the duty is
performed, but it does not seem that any precise rule on this
point has been laid down in the case of adoption. Where a mental
capacity is attained for religious functions in general it seems to
be gained for adoption. Such restrictions as are recognized may
be referred rather to other grounds than mere defect of under-
standing unless this should amount to positive limacy.
B. 3. 28. — Adoption by a Widow — Her Capacity as Affected by
Her State as to Body, Mind, Keligion, and Caste.
" Leprosy of a virulent type disqualifies a widow for adopting
though otherwise competent " (w).
(r) MS. 1648. A widow under age it was said might adopt under a direction
from her husband, though his brothers survived; Haradhan Roy v. Biswanath
Roy, 2 Macn. H. L. 180; Gopal v. Vishnu, I. L. E. 23 Bom. 250.
(s) Musst. Chimnee Baee v. Musst. Guttoo Baee, 8 N. W. P. S. D. K. 1853,
p. 636.
(t) MS. 1675.
(v) Somasekhara Raja v. Suhhadramaji, I. L. E. 6 Bom. 524, 527.
(w) See B. 3. 17, p. 874, as to misconduct. Mohunt Bhagwan Ramamuj
Das v. Das, L. E. 22 I. A. 94.
892 HINDU LAW. [book III.
A woman's want of chastity deprives her acts of all religious
efficacy (cc). An unchaste woman, pregnant in concubinage, is
incompetent to adopt (y) ; but after removal of the sin by penance
she can adopt (z).
A widow under puberty cannot adopt (a), except in some castes
with the consent of her husband's kinsmen, or of the caste, or of
both. But even when the adoption is made by an immature girl
the ceremonies should be deferred till after her " shanee " (b) or
attainment of puberty.
' ' Widows of Brahmans and of others amongst whom the custom
obtains are deemed impure after the attainment of puberty until
they undergo tonsure. They are, however, competent to
adopt " (c).
* * A widow who has attained puberty cannot perform any
religious act and therefore cannot adopt until she has undergone
tonsure " (d).
B. 3. 29. — Adoption by a Widow — Capacity Annulled by
Her Ke-marriage.
Ee-marriage is not recognized amongst the higher castes (e).
Any association called by such a name is a cause of impurity
disabling the subject of it from performing religious acts. But
even amongst Sudras re -marriage entirely severs the previous
family connexion and prevents adoption by the widow who has
formed a new alliance. Ee-marriage as laid down by the Bombay
High Court is no bar to a widow giving her son in adoption if
authorized by her husband (/). In Putlahai v. Mahadu (g) she is
held to have the power to adopt even without her husband's
{x) See Moniram Kolita v. Kerry Kolitany, L. K. 7 I. A., at p. 125.
(y) Sayamalal Dutt v. Saudamini Dasi, 6 B. L. E. 362.
(z) Thukoo Baee v. Ruma Baee, 2 Borr. 488 (2nd ed.).
(a) Steele, L. C. 48.
(b) Ibid. 187.
(c) Lakshmihai v. Ramchandra, I. L. B. 22 Bom. 590.
(d) MS. 1615.
(e) See Act XV. of 1856, already several times referred to.
</) Panchappa v. Sangamhasawa, I. L. E. 24 Bom. 39.
(g) I. L. E. 33 Bom. 107.
S. III. B.] ADOPTION BY A WIDOW. 893
consent, as her power to adopt proceeds from her position as a
mother, and re-marriage cannot deprive her of this right.
" A Sudra's widow having married another person cannot adopt
a son to the deceased husband " (h).
B. 3. 31. — Adoption by a Widow — Consent Eequired.
The widow's right to adopt imder an express authority from her
husband is unquahfied by any absolute necessity for the consent
of relatives (f). In the absence of such authority she may, as a
junior widow, require the consent of her co-widow, and as a
member of her husband's family the consent of his near relatives,
provided it be not improperly withheld (fe).
B. 3. 32. — Consent of Co-Widow.
Where there are two widows they ought regularly to concur in
an adoption. In case of disagreement the right belongs, as we have
seen, to the elder (I). " But a second widow may adopt with the
consent of the elder " (m). A co- widow, however, cannot make an
adoption without the consent of the other co-widow in whom the
whole estate of her son has vested by inheritance (n). In Bengal
such an adoption by the junior widow has been held not to divest
the estate vested in the senior widow in her capacity as a mother (o).
B. 3. 33. — Consent of Mother-in-Law.
The consent of a mother-in-law to an adoption by her adoptive
son's widow seems to have been thought necessary, but was
inferred from the absence of a prohibition in Thukoo Baee Bhide v.
(h) MS. 1749.
(t) See above, B. 3. 1 and B. 3. 2.
(k) See Dinkar Sitaram Prahhu v. Ganesh Shrivram Prahhu, I. L. K.
6 Bom. 505. Padajirav v. Ramrav, I. L. E. 13 Bom. 160; Mandakini Dassee
V. Adinath Day, I. L. E. 18 Cal. 69.
(l) Sec. III. B. 3. 17. Padaji v. Ramrav, supra.
(m) MS. 1658. The assent was in one case pronounced unnecessary.
MS. 1663. See 2 Str. H. L. 94.
(n) Anandibai v. Rashibai, I. L. E. 28 Bom. 461.
(o) Faizuddin v. Tincmori, I. L. E. 22 Cal. 566.
894 HINDU LAW. [book III.
Ruma Baee Bhide (p). The necessity for this consent could not,
probably, be maintained on the authorities. In Siddappa v.
Ningangavda (q) it was held that the widow of a pre-deoeased
son could make a valid adoption with the consent of her mother-
in-law, in whom the estate of the last full owner had vested, as an
adoption by such a daughter-in-law during the lifetime of the
father-in-law would not devest the estate vested in the
mother-in-law (r).
B. 3. 34. — Adoption by a Widow — Consent Eequired of
Husband's Kinsmen or Sapindas.
This subject has been much discussed in the judgments in
recent years. The law varies in Bengal, Madras and Bombay. It
differs according as the deceased husband was undivided or
separated from his brethren. In the former case the dependence
of the widow and the necessity for the sanction of the kinsmen is
recognized by all the systems ; in the latter case the Bengal Law
is still strict in requiring the husband's sanction (s), the Madras
Law requires some sanction of the relatives, the Bombay Law
practically dispenses with it (t).
" A woman cannot adopt without the consent of her husband.
If the husband be dead he should have expressed his intentions
which the widow may carry out. Failing this she must obtain his
father's permission. Failing him she must obtain the assent of
the relatives (or caste fellows). Without this the adoption is
invalid. A deed transferring her property inherited from the
husband to the adopted son is invalid unless countersigned by the
relatives " {v). "A widow must have her husband's permission;
(p) 2 Borr. E. 488, 495. Perhaps the Sastris were influenced by the
prevailing idea in Gujarath of the mother's superiority to the wife.
(g) I. L. K. 38 Bom. 724.
(r) Gopal V. Vishnu, I. L. R. 23 Bom. 260.
(s) Raja Himun Chull Sing v. Koomer Gunsheam Sing, 2 Kn. P. C. C. 203,
222. The case was one from Etawah in the N.W. Provinces.
(t) Jud. Cit., at p. 221. Ramji v. Ghamau, I. L. E. 6 Bom., at p. 502.
(tj) MS. 1652. The law here enunciated does not give the widow unbounded
discretion. It rather resembles the law prevailing in Madras. See Appaniengar
V. Alemalu Ammal, M. S. D. A. E. for 1858, p. 5; Smr. Chand., Chap. I.,
paras. 31, 32; 2 Str. H. L. 92.
S. III. B.] ADOPTION BY A WIDOW. 895
or that of her father-in-law; or of his widow her mother-in-
law " (w). The Vyavahara Mayukha dispenses with the assent of
the deceased husband of a widow on the ground that the text
limiting a woman's power rests on her essential dependence during
coverture, and expressly mentions only the assent of a husband to
the act of the wife as necessary [x). From the same text the
Dattaka Mimamsa deduces that the husband's express authority
is indispensable. The middle doctrine of the assent of the kinsmen
being necessary and sufficient is favoured by the Mayukha (y),
and this may be considered to have prevailed over both the
extremes (z), at least in the case of a united family. A Hindu
widow, who has not the family estate vested in her, and whose
husband was not separated at the time of his death, is not
competent to adopt a son to her husband without his authority or
the consent of his undivided coparceners (a).
As to what assent is sufficient, in default of authority from the
husband, in case of adoptions in divided and undivided families,
reference may be made to the cases below (b). In the first of
these it was ruled that what constitutes the consent of kinsmen
must depend on circumstances. In a united family a widow
adopting without her husband's authority must have the per-
mission of her father-in-law if he is alive ; if he is dead the consent
of all her husband's surviving brothers (c). Where, however, the
(w) MS. 1672. " Among the Brahmins &c. . . . the widow may adopt if
ordered to do so by her husband before his death," even where on his decease
his share is absorbed in the shares of his brothers. Steele, L. C. 176. Vithoha
V. Bapu, I. L. E. 15 Bom. 110; Siddappa v. Ningangavda, I. L. E. 38 Bom. 724.
(x) Vyav. May., Chap. IV., sec. V., paras. 16 — 18.
(y) hoc. cit., para. 17.
(z) See above, B. 3. 13.
(a) Ramji v. Ghamau, I. L. E. 6 Bom. 498; Dinkar Sitaram Prahhu et al. v.
Ganesh Shivram Prahhu, I. L. E. 6 Bom. 605. Above, p. 891, note (r).
(h) Collector of Madura v. Mutu Ramalinga Sathupatty, 1 Beng. L. E.
1 P. C. ; S. C. 12 M. I. A. 397 ; S. C. 2 Mad. H. C. E. 206 ; Sri Varada Pratapa
Sri Raghunadha v. Sri Brozo Kishoro Patta Deo, 25 C. W. E. 291 C. E. ; 7 Mad.
H. C. E. 301 ; L. E. 3 I. A. 154 ; I. L. E. 1 Mad. 69 ; Soohurnomonee Dehia v.
Petumber Dobey, 1 Marsh, 221; R. V. Venkata Krishna Row v. Venkata Rama
Lakshmi Narasayya, L. E. 4 I. A. 1 ; S. C. I. L. E. 1 Mad. 174. In this case
it was said that limitation as against one disputing an adoption is to be
computed from the time when he became aware of the adoption.
(c) " The authority of a father-in-law would probably be sufficient to a widow.
It is not easy to lay down an inflexible rule for the case in which no father-in-
law is in existence. Every such case must depend upon the circumstances of
the family. All that can be said is that there should be such evidence of the
HINDU LAW. [book III.
widow succeeds to her husband as owner of a separated estate the
consent of her husband's nearest kinsmen is sufficient.
In the second case the High Court of Madras held that the
assent of a single sapinda replaced what under the older law would
have been a procreation by him {d), but from this the Judicial
Committee dissent. The law of Madras, their Lordships say (e),
" in this respect is something intermediate between the stricter
law of Bengal and the wider law of Bombay," and by that
law " a widow not having her husband's permission may adopt
a son to him if duly authorized by his kindred. " " The requisite
authority," they thought, " is in the case of an undivided family
to be sought within that family " (/). In the particular case the
property was an impartible zamindary, and Holloway, J., having
held that in such a case, though the family was undivided, the
principles applicable to a divided family and a separated estate
ought to govern succession and adoption, the Judicial Committee
take occasion to intimate their doubt whether such a doctrine
is tenable {g). It is obviously inconsistent with the principle that
" the substitution of a son of the deceased for spiritual reasons is
the essence of the thing and the consequent devolution of property
a mere accessory to it."
The wider law of Bombay referred to by the Judicial Committee
assent of kinsmen as is sufficient to show that the act is done by the widow in
the proper and bona fide performance of a religious duty and neither capriciously
nor from a corrupt motive." Privy Council in the Ramnad Case (12 M. I. A.
442), on which Sir J. Colville observes (I. L. R. 1 Mad. 190) :
" Their Lordships think it would be very dangerous to introduce into the
consideration of these cases of adoption nice questions as to the particular
motives operating on the mind of the widow, and that all which this Committee
in the former case intended to lay down was, that there should be such proof
of assent on the part of the sapindas as should be sufficient to support the
inference that the adoption was made by the widow, not from capricious or
corrupt motives, or in order to defeat the interest of this or that sapinda, but
upon a fair consideration, by what may be called a family council, of the
expediency of substituting an heir by adoption to the deceased husband."
id) 7 Mad. H. C. E., at p. 305.
(e) L. E. 3 1. A., at p. 191.
if) In earlier Madras cases it had been ruled that the relations whom a widow
is to consult for adoption may be her father-in-law or other elders of the family
iRamasashien v. Akyalandumal, M. S. D. A. E. 1849, p. 115), or her husband's
nephew iAppaniengar v. Alemalu Ammal, M. S. D. A. E. 1858, p. 5). The
consent of his nephew as nearest male representative was held sufficient in N.
Chandvasekharuda v. N. B. Eahmana, 4 Mad. H. C. E. 270.
ig) See L. E. 3 I. A., at pp. 191, 192.
S. III. B.] ADOPTION BY A WIDOW. 897
is that allowing a widow of a Hindu separated from his family
to adopt without the sanction of any one in any case in which
the husband has not intimated a wish to the contrary (/i).
In Raja V.V. Knshnarao's Case (i), reference is made to the
Ramad Case (fe) to show that where the deceased had been
separate in estate such " assent of kinsmen suffices [as will] show
that the act is done by the widow in the proper and bona fide
performance of a religious duty, and neither capriciously nor from
a corrupt motive." As to this " their Lordships think it would
be very dangerous to introduce into the consideration of these
cases of adoption nice questions as to the particular motives
operating on the mind of the widow. " Where, as in Bombay, the
widow's authority in a divided family is greater, it would obviously
be still more dangerous to scrutinize her motives too closely in
the light cast on them by the suggestions of interested relatives.
The difficulty is removed by dispensing with their sanction. The
opinions of the Sastris on this subject have varied somewhat,
according to the authorities on which they have relied, but the
doctrine of the Samskara Kaustubha has generally prevailed (l).
The assent of separated kinsmen will by no means replace that
of the deceased husband's undivided brother (m). Where the
husband of a Hindu widow dies separated, and she herself is the
heir, or she and a junior co-widow are the heirs, she may adopt
without the sanction of her husband (if he have not, expressly or
by implication, indicated his desire that she shall not do so) and
without the sanction of his kindred (n).
In one Bombay case it was held that the consent of a single
sapinda in a family apparently undivided was sufficient to validate
an adoption by a widow (o), but this cannot now be considered as
the received law (p). Where assent is needed it is the assent of the
(h) Ramji v. Ghamau, I. L. E. 6 Bom., at p. 503. See above, pp. 783, 796.
Lakshmihai v, Sarasvatihai, I. L. E. 23 Bom. 789.
(t) L. E. 4 I. A. 1; S. C. I. L. E. 1 Mad. 174.
(fe) 12 M. I. A. 397.
(Z) See above, pp. 783, 796.
(m) Sri V. P. Raghunadha v. Sri Brozo Kishore, L. E. 3 1. A., at p. 189.
(n) Rakhmahai v. Radhahai, 5 Bom. H. C. E. 181 A. C. J. ; Ramji v.
Ghamau, I. L. E. 6 Bom. 498; Mahahleshwar v. Durgahai, I. L. E. 22 Bom.
199; Patel Vandravan v. Chunilal, I. L. E. 15 Bom. 565.
(o) Gopal Shridhar v. Naro Vinayak, 7 Bom. H. C. E. App, xxiv., approved
in Rakhmahai' s Case, 5 Bom. H. C. E., at p. 190,
(p) See Ramji v. Ghamau, I. L. E. 6 Bom., at p. 503.
H.L. 57
I
898 HINDU LAW. [BOOK III.
father or of all the male members of the undivided family. Still,
however, the right to give or refuse assent cannot be regarded as
absolute. " The assent of kinsmen seems to be required by reason
of the presumed incapacity of women for independence, rather
than the necessity of procuring the consent of all those whose
possible and reversionary interest in the estate would be defeated
by the adoption " (q). A widow refused permission without
reasonable grounds might on Hindu principles properly apply to
:a Civil Court for a declaration of her right to adopt even against
the will of one or more of the sapindas of the husband (?•.)
B. 3. 35. — Adoption by a Widow — With Consent of the Caste.
A woman may adopt for her deceased husband if she has
permission of the caste (s) according to some interpretations.
In Sree Brijhhookunji's Case [t) the Sastris are made to say
that a widow not having a written permission from her husband
may adopt with the sanction of the caste and the cognizance of
the Government. The jnati are more properly the kinsmen, the
gentile relatives, and so Colebrooke translates the word (v), but
the Sastris insist on the approval of the caste unless indeed
members of it be not within reach for consultation (w). They
therefore must have taken " jnati " in the sense of caste fellows.
Many castes at Poona said a widow could adopt with the consent
of the caste (x). They probably took the ambiguous " jnati" in
a sense supporting this rule.
(g) The Collector of Madura v. Mootoo Ramalinga Sathupathy, 12 M. I. A.,
at p. 442. This agrees with the Nirnaya Sindhu and the Vyav. Mayukha.
(r) See above, sub -sec. B. 3. 26, p. 891, note (r).
is) Narayan v. Nana, 7 Bom. H. C. K. 153 A. C. J. ; Vyav. May., Chap. IV.,
sec. V. 17, 18; Steele, L. C. 48, 188; Sree BrijhJiookunjee Maharaj v. Sree
Gakoolootsaojee Maharaj, 1 Borr. 181, 202 (2nd ed.) ; Thukoo Baee v. Ruma
Baee, 2 Borr. 488 (2nd ed.). See above, p. 868.
(t) 1 Borr. E., at p. 214.
(v) See Mit., Chap. I., sec. XI., para. 9, note.
(w) Brijhhookkunjee's Case, 1 Borr. 216.
(x) Steele, L. C. 187.
S. III. B.] ADOPTION BY A WIDOW. 899
B. 3. 36. — Adoption by a Widow — Consent of Persons whose
Interests are Affected by the Adoption.
It has been shown above, B. 3. 25, that according to some
decisions a vested, interest cannot generally be devest^ed by means
of an adoption. According to the same decisions, however, the
person whose estate is to be devested may assent to the adoption
and thus give it validity. This doctrine agrees with that of the
Hindu lawyers in so far as it gives weight to an assent which
must be disinterested. It is opposed to the Hindu Law if it is
applied so as to make the widow's right to adopt absolutely
dependent on the assent of one who is interested in refusing it. A
separated relative on whom the widow is not spiritually dependent
does not acquire a right to control her by taking the estate for
which it is her religious duty to provide a better heir. The mother
of the deceased is hardly less bound than his widow to secure his
eternal peace; she can have no right to deprive him of it merely
because she may have succeeded to the estate. The doctrine as
thus far developed takes no account of the joint right even in the
case of collateral succession according to some jurists (y) which
the son of the man in whom the estate has vested has forthwith
acquired in that estate. The sons' assent to an adoption, if the
need for assent rests on proprietary right, ought to be as essential
as their father's, but the law has not been pushed to this logical
conclusion. Nor has the vested interest as yet been held to
involve a right to defeat an express authority to adopt given by
the deceased owner to his widow. Such an effect indeed would be
entirely opposed to the decisions (^). But as the widow's capacity
rests on a presumed assent there seems to be no good reason
where this principle is admitted for allowing an interested relative
merely on the ground of his interest to annul the presumed
authority. The necessity for san^ction is really a consequence of
the widow's dependence (a). According to the Bombay Law she
cannot adopt to take away an estate from collaterals without their
assent except when she herself has a right superior to theirs. In
iy) See above, pp. 655 — 667.
(z) See above, B. 3. 13, B. 3. 23, B. 3. 25; above, p. 895.
(a) Above, B. 3. 23; pp. 224 ss., and 898.
It is inconsistent with the consent of relatives, being in them a right of
property that, if they refuse it, it may generally be replaced by that of repre-
sentative members of the caste. Steele, L. C. 394. A question which the caste
cannot settle may be referred to the ordinary Courts. Ibid. 185, 186.
900 HINDU LAW. [BOOK III.
an undivided family she has to obtain their sanction; in a divided
family she herself represents the line, failing other representatives,
that would be represented by her adopted son [b). When she ends
one collateral line she cannot take away the estate from another
by adoption (c).
It is desirable that the actual decisions should, if possible, be
brought into harmony with the principles thus deduced from the
Hindu Law itself. These decisions are in themselves somewhat
contradictory, and as the Courts in India have built on a few dicta
of the Judicial Committee a theory which they seem too narrow
to support, a return to the guidance of Indian authority may be
the course attended with least disturbance of precedents.
In the Maratha country it was maintained by Sir E. Couch
on a very complete review of the authorities that a conscientious
adoption by a widow without the consent of kinsmen or co-widow
may be legal (d). In a later case (e), this was qualified by a
statement that the consent of a kinsman would be material if an
interest in property is vested in him, and he would be devested of
it by the adoption (/). This prohibitive power was even placed in
the hands of a kinsman's widow. Thus a widow of the husband's
brother who died in possession (g), or a widow of a son who died
after his father (/i), is not, it is said, to be devested by an adoption
which would give to the adopted son a place prior to them in the
line of inheritance. The deceased husband was the last full owner
(b) See Lulloohhoy v. Cassihai, L. E. 7 I. A. 212.
(c) See above, sub-sees. B. 3. 23, B. 3. 25, B. 3. 34. Pudma Coomari Dehi v.
Court of Wards, L. K. 8 I. A. 229; Thayammal v. Venkatrama Aiyan, L. E.
14 I. A. 67; Tarachurun Chatterji v. Suresh Chunder Mookerji, L. E. 16 I. A.
166.
(d) Rakhmahai v. Radhabai, 5 Bom. H. C. E. 181 A. C. J.
(e) Rupchand Hindumal v. Rakhmahai, 8 Bom. H. C. E. 114. In this case
one of two co-widows it is said must submit to an adoption by another for her
husband's beatitude, while to the widow of a united brother such an adoption
would work " manifest injustice." But as the adoption could be made to the
prejudice of the surviving brother, why not to the prejudice of his widow, who
at most continues his existence? The widow of the first deceased similarly
continues his existence, and the Hindu Law contemplates an adoption by the
widow of each brother so as to reproduce the united family.
(f) Annammali v. Mahhu Bali Reddy, 8 Mad. H. C. E. 108; Rally Prosono
Ghose V. Gocool Chunder, I. L. E. 2 Cal. 295.
(g) Rupchand v. Rakhmahai, 8 Bom. H. C. E. 114 A. C. J.
(h) Musst. Bhoohun Moyee Dehia v. Ramkishore Acharjee, 10 M. I. A. 279;
S. C. 3 C. W. E. 15 P. C; Beng. S. D. A. E. 1858, p. 122.
S. III. B.] ADOPTION BY A WIDOW. 901
in these cases. Where the deceased was a member of a joint
family the widow of a predeceased coparcener may, on the
principles above stated, adopt after the death of the last deceased
as she could before it, and with a similar effect (i). Where he
was separated no right can be acquired against his own line by
adoption in another. Where on failure of his own line and of
united coparceners the estate has passed to a separated branch it
cannot be taken away by another by means of a subsequent
adoption ; but the failure of his own line is not definitive until his
widow has died without adopting.
B. 3. 37. — Adoption by a Widow — Consent of Government.
It has been shown (A. 4. 4) that the consent or at least the
acquiescence of the Government has sometimes been thought
requisite to a valid adoption. The same idea has prevailed still
more with respect to adoption by widows. It does not seem to be
better founded in the one case than in the other. Some intimation
to the Government might be desirable for publicity, and where an
estate supporting a public office was to be taken there were
obvious reasons why the sovereign should insist on adoptions
being made only with his approval, but so far as the Hindu Law
is concerned such a sanction was not needed any more for the
adoption than for the procreation of a son (k). Each is in its place
a religious duty, superior to the will of the temporal ruler. Yet
according to the Sastri —
" The assent of relatives and of the Government is requisite
to the validity of an adoption by a widow " (I).
(i) A partition and distribution after a coparcener's death seem to prevent a
recovery by a son afterwards adopted by his widow. See below, sec. VII.
(k) " In contemplation of law such (adopted) child is begotten by the father
. . . on behalf of whom he is adopted." Per Willes, J., in the Tag ore Case,
L. E. Supp. I. A., at p. 67.
(l) MS. 1644. The assent of the Government is not now deemed necessary,
Rangoohai v. Bhagirthihai, I. L. B. 2 Bom. 377 ; Narhar Govind Kulkarni v.
Narayan Vithal, I. L. E. 1 Bom. 607; 2 Str. H. L. 88.
902 HINDU LAW. [BOOK III.
" The sanction of Government is necessary to an adoption by
a widow " (m).
Except when her husband is alive a woman may adopt (n) with
the sanction of the ruHng power (o).
When the Government has sanctioned and confirmed an
adoption, gift, or bequest, the defectiveness thereof need not be
inquired into (p). Its non-interference entitles the adopted son
to succeed to a vatan (q).
(m) MS. 1644. But as to this see A. 4. 4. In the Mankars' Case the follow-
ing replies were given by the Sastris :
1. " That a woman, whether Brahman or Shoodr, was permitted to adopt a
son, without her husband's order, after his death."
2. "That the widow could adopt a son after her husband's death."
3. " A woman is permitted to take a son in adoption according to the
Mayookha."
4. " From political motives Bajee Rao declared the adoption of a son by a
widow, without the orders of her husband, to be illegal, though he permitted
two or three exceptions."
5. " The widow is permitted by the Shastr to adopt any one as her son."
6. "An elderly widow is allowed, of her own accord, to do that which will
insure her happiness in the next world, and as adopting a son is one means of
attaining it, she may adopt a son."
(n) Narayan v. Nana, 7 Bom. H. C. R. 153 A. C. J. ; Steele, L. C. 45, 47, 187.
(o) Sree Brijbhookunjee Maharaj v. Gokolootsaojee Maharaj, 1 Borr. 181,
202 (2nd ed.).
In this case the Sastri said : " A widow, notwithstanding she has no written
permission from her husband, may, if she be desirous of adopting a son, do
so legally by obtaining the sanction of the gentiles, and informing the ruling
authorities."
" A woman ... in the event of her receiving no order (from her deceased
husband) must send for her relations . . . and after acquainting the ruling
authorities, may adopt a son according to the ceremonies laid down in the
Vedas."
(p) Sree Brijhhookunjee Maharaj v. Sree Gokoolootsaojee Maharaj, 1 Borr.
181, 202 (2nd ed.); Rakhmabai v. Radhahai, 5 Bom. H. C. R., at p. 187
A. C. J. The importance attached to confirmation by the sovereign where a
public trust was concerned may be seen from pp. 206, 209 of the report of
Borradaile.
(g) Ramachandra Vasudev v. Nanajee Timajee, 7 Bom. H. C. R. 26 A. C. J.,
in which references were made to Bhasker Buchajee v. Narro Raghunath,
Select Cases, p. 25; Virhudru Hurrybudru v. Baee Ranee, Morris, Pt. II.,
p. 1; Trimbak Baji Joshi v. Narayan Vinayak Joshi, 3 Morris's S. D. A. R.,
p. 19; Vishram Babooroio v. Narainroio Kassee, 4 ibid. 26; Chenbasawa v.
Pampangoicda, S. A. No. 655 of 1864; Rakhmabai v. RadJtabai, 5 Bom. H. C.
R. A. C. J. 181.
S. III. B.] ADOPTION BY A WIDOW. 903
B. 3. 38. — Adoption by a Widow — Omission or Postponement
OF Adoption.
Though it is a religious duty on the widow's part to give effect
to any express direction left by her husband she cannot be
constrained to perform it. Without goodwill indeed the reception
could hardly be religiously perfect. The cases collected under
B. 3. 15 will serve to illustrate this sub-division also along with
those which follow.
The right of inheritance is not suspended by pregnancy or until
adoption (r).
Authority to adopt, upon death of the natural son, does not
prevent the widow from succeeding to the son, the authority not
being imperative (s).
A widow having permission to adopt three sons in succession
cannot be compelled to act on that permission before she is
allowed to take her contingent estate on the death of the adopted
son (t). A husband's express authorization, or even direction, to
adopt, does not constitute a legal duty on the part of the widow-
to do so, and for all legal purposes it is absolutely non-existent
till it is acted upon (v).
B. 3. 39. — Adoption by a Widow — Pretended Adoption.
Some instances of pretended adoption have occurred and have
been dealt with by the Courts on the ordinary principle of avoiding
fraudulent transactions. As a pretended adoption is not an
adoption, the subject does not require detailed treatment.
(r) Dukhina Dossee v. Rash Beharee Mojoomdar, 6 C. W. K. 221.
(s) Dino Moyee Chowdhrain, v. A. D. C. Rehling, 2 C. W. E. 25 Mis.
Eulings.
(f) Deeno Moyee Dossee v. Doorgapershad Mitter, 3 C. W. E. 6 Mis. App.
See above, pp. 813, 814.
(v) Uma Sunduri Dahee v. Sourohinee Dahee, I. L. E. 7 Cal. 288; Muta-
saddi Lai v. Kundun Lai, L. E. 33 I. A. 55.
904 HINDU LAW. [BOOK III.
B. 4. — Adoption by Females — Anomalous Adoptions.
As a hu&band and wife must be joint parents of the legitimate
begotten son, and ought to join in adopting a boy to replace him,
so the widow alone can in strictness be qualified to adopt after
her husband's death a son who, becoming his Bon, becomes hers
also. And so long as the widow exists it is quite opposed to
principle that she should be supplanted in the performance of this
duty by any one else. But in the case of boys dying as infants
the right of the mother to adopt has gained recognition by a kind
of necessity, and this right has in some instances been allowed
an extension even to cases in which the deceased son had left a
widow. Where a son has died before his father the sacra have
never wholly devolved upon him, and adoption by the father may
be conceived as not depriving the daughter-in-law of any distinct
spiritual jointure ; where she is ousted by her mother-in-law, it
must rather be ascribed to confusion of thought or to the pre-
dominance allowed in many ways to a mother by caste custom,
some instances of which have already been noticed (w).
B. 4. 1. — Anomalous Adoptions — Adoption by Mother.
A widow, after succeeding to her natural-born son as his heiress,
mmj adopt a hoy to her own husband {x), or, it is said, to the son
himself (y), so as to devest her own interest.
" If a daughter-in-law has made an invalid adoption contrary to
the wish of the mother-in-law the latter may adopt an eligible
(w) See above, pp. 91, 92, 152, 372.
(x) Bykant Mony Roy v. Kristo Soondery Roy, 7 C. W. E. 392; Mondakini
V. Adinath, I. L. E. 18 Cal. 69.
iy) R. V. Venkata Krishna Rao v. Venkata Rama Lakshmi Narsayya,
L. E. 4 I. A. 1; S. C. I. L. E. 1 Mad. 174.
" A widow succeeding as heir to her own son does not lose the right to
exercise the power of adoption. By making an adoption she divests her own
estate only." The adoption by a mother on account of her deceased son is
questionable. It is impossible that the same boy should have been her son
and her son's son. Her adoption should be of a son to her husband, in place
of the one deceased without son or widow. See B. 3. 13; 2 Str. H. L. 94.
S. III. B.] ANOMALOUS ADOPTIONS. 905
person " (z). " If she make an illegal adoption her mother-in-law
may make one " (a).
A widow having, against the wish of her mother-in-law, who
wanted a boy of her own gotra, adopted one of a different gotra,
this was pronounced invalid. The mother-in-law adopted a boy
of her gotra. The Sastri pronounced this, too, illegal, as the right
vested in the daughter-in-law. But of the two the preference was,
he said, to be given to the adopted of the mother-in-law as being
of the same gotra (h).
In a case at 2 Str. H. L. 93 the Sastri said a mother directed
to do so by her dying eon could adopt for him. Mr. Ellis treated
this as a case of delegation, and thought she might act as her
son's deputy, as " the Hindu Law^ and religion allows of vicarious
substitution in almost every possible case." The mother could
not act as " deputy " for a son deceased, but during his life he
might perhaps commission her to act for him, in a simply
ceremonial act (c), though this is not certain. Colebrooke in the
case in question seems to have thought that a mother might
complete, on behalf of her son, an adoption begun by the latter but
interrupted by his death. Sutherland thought that notwith-
standing the son's request the mother could not, after his death,
adopt for him (d). Adoption by a mother to her own husband
after her son's death is, as we have seen, under some circumstances
permissible. An adoption by her to her son cannot be regarded
as otherwise than grossly anomalous. It is only his wife or his
widow who can adopt for a man (e) and at the same time for
herself, the adoption taking the place of procreation, in which a
son and a mother could not possibly join (/).
(z) MS. 1672. But see 2 Str. H. L. 91 ss.
<a) MS. 1632.
(b) MS. 1744. See above, p. 92, note (t).
(c) See Vijiarangam v. Lukshman, 8 Bom. H. C. R., at p. 256 0. C. J.
(d) So per Westropp, C. J., in Bhagvandas Tejmal v. Rajmal, 10 Bom.
H. C. R., at p. 265.
(e) Bhagvandas v. Rajmal, 10 Bom. H. C. R. 241.
(/) An adoption invalid on account of an intervening holder of an estate is not
set up by the death of that person. See Bykant Moonee Roy v. Kisto Soonder
Roy, 7 C. W. R. 392, as compared with the explanation of Bhoohun Moyee's
Case, in Pudma Coomari v. Court of Wards, L. R. 8 I. A. 229.
906 HINDU LAW. [BOOK III.
B. 4. 2. — Anomalous Adoptions by Females — By a
Daughter-in-La w .
The case discussed above under A. 2. 3 may, from one point of
view, be regarded as falling under this section. The validity of
such an adoption would hardly now be admitted (g).
B. 4. 3. — By a Grandmother.
A grandmother who succeeds to an unmarried grandson cannot
adopt (h).
C. 1. — Quasi- Adoptiq-ns — By Males.
' ' Of the twelve enumerated sons two only — the lawfully begotten
and the adopted — are allowed in the Kaliyuga (i).
The Kritrima adoption by a male to himself alone or by a husband
and wife to both conjointly, is still recognized in Maithila (fe), but
it is of little or no importance for other districts.
The palak putra has no right as such (I).
" A foster-son may be heir by custom " (m). In such a case
the " adoption " must, so far as is known, be made by the foster-
father himself.
C. 2. — Qwasi-ADOPTioNs by Females — Kritrima Adoptions.
' ' In Maithila the widow is as of right at liberty to adopt without
special authority for the purpose (a Kritrima son) ; the adopted in
this case succeeding to her exclusive property only, not to that of
her deceased husband to whom he is not considered in any way
(g) In Dinkar Sitaram v. Ganesh Shivram Prahhu, I. L. E. 6 Bom. 505, the
authorization of a father-in-law seems to have been thought of some importance.
But no part of the ultimate decision rests on this point. At p. 508, line 5, a
seeming error is caused by the omission of the word " of " before " Krishna."
(h) Ramkrishna v. Shamrao, I. L. E. 26 Bom. 526.
(i) MS. 1633.
(k) See below, sec. VII
(1) Steele, L. C. 184. As to the palak putra, see above, p. 828.
(m) MS. 1707. As to the fosterage or gaosi-adoption prevalent amongst the
lower castes, see above, p. 827.
S. III. C] QUASI-ADOPTIONS BY FEMALES. 907
related " (n). He acquires no relationship 'save to the adopting
mother (o).
In Maithila it appears that a wife may adopt to herself
independently of her husband by the Kritrima form. The son
thus taken suc-ceeds only to her Stridhana (p).
The son thus adopt-ed by a wife or a widow does not lose his
place in his own family (q).
The consent of the person adopted is indispensable (r).
C. 2. 1. — Quasi- Adoptions by Females — Subject to the Alya
Santana Law.
A female, where the Alya Santana law prevails, cannot adopt if
she have male issue living (s).
C. 2. 2. — Qitasi- Adoptions by Females — By Kalwantins,
Naikins, &c.
" The Sastras contain no rules applicable to adoption by
Kalwantins " (t). A dancing girl can adopt, but only a
daughter (v).
The Pandit of the Supreme Court at Calcutta when consulted
on an adoption of a daughter by a courtesan answered that there
was no such instance of the adoption of a daughter to inherit by
the Hindu Law (w).
(n) 2 Str. H. L. 204, quoting Sutherland's Synopsis.
(o) Boolee Singh v. Musst. Busunt Koveree, 8 C. W. E. 155. With the
Kritrima adoption may be compared that allowed in the later ages of the Roman
Law. See above, pp. 814, 815.
(p) Sree Narain Rai v. Bhya Jha, 2 C. S. D. A. R. 23.
(g) Collector of Tirhoot v. Hurroo Persad Mohunt, 7 C. W. R. 500 C. R.
(r) Luchman Lai v. Mohun Lai, 16 C. W. R. 179 C. R. See above, pp. 814,
828, 833.
(s) Cotay Hegady v. Manjoo Kumpty et al., M. S. D. A. R. 1859, p. 138.
The Alya Santana succession is that of a nephew to his maternal uncle. See
above, pp. 274, 276, 398.
it) MS. 1651.
(v) M. C. Alasani v. C. Ratnachellum, 2 Mad. H. C. R. 56 ; Manjamma v.
SJiishgirirao, I. L. R. 26 Bom. 491. This is not a real adoption. See above,
p. 835. The adoption (so called) of a Palak Kanya as a dancing-girl may be
annulled at pleasure by the adopter, Steele, L. C. 185.
(w) Doe dem Hencower Bye v. Hanscower Bye, 2 Mor. Dig. 133.
908 HINDU LAW. [BOOK III.
SECTION IV.— FITNESS FOE ADOPTION.
When a substitutionary son is needed the man seeking him is
not at liberty to adopt any child indiscriminately. There are
conditions as to sex (x), caste, family and personal qualities, which
must be satisfied in order to constitute a fit subject for adoption.
Some of these afford no more than a ground of preference, but
others are indispensable. They go to the root of the capacity to
render the desired benefits, or rest on the duties due to the family
of birth, which must not be thrown off even in the lower castes.
The statement that " an adoption once made cannot be set
aside" (y) cannot be sustained in the sense that a mere
performance of the ceremonies gives validity to an adoption of a
disqualified person (z), or one given by a person not competent to
make the gift. Sir M. Westropp denied that the factum valet
principle could be applied to such a case (a) where a widow
without express authority had given an only son in adoption.
1. — Fitness for Adoption as Affected by Caste.
The rule which requires that a boy who is to be adopted shall
be of equal class with the adoptive father has already been
considered (b). It is implied in several of the texts quoted below.
The instances of a breach or attempted breach of this rule are,
as might be expected, very few. In two cases the following
answers were given :
" No adoption is permitted from a different caste " (c).
(x) The ancient institution of the putrika-putra makes the mention of " sex "
not superfluous. See Vyav. May., Chap. IV., sec. V., para. 6.
" The substituting of a daughter for a son is also prohibited, being included
amongst those rejected in the Kaliyuga." 2 Str. H. L. 152.
(y) Raje Vyankatrao v. Jayavantrao, 4 Bom. H. C. K., at p. 195.
(z) Lakshmappa v. Ramava, 12 Bom. H. C. R., at p. 389, and the cases
there quoted.
(a) Ibid., p. 397. So Colebrooke at 2 Str. H. L. 178.
(b) Above, p. 830. See Vyav. May., Chap. IV., sec. V., para. 4.
(c) MS. 1637. An adoption is annulled if it be discovered that the boy
adopted was of a lower caste than the adoptive father, Steele, L. C. 185. This
means that the adoption is declared to have been null from the first. See Datt.
Mim. II. 25, 27.
S. IV.] CONNEXION IN FAMILY GENERALLY. 909
An adoption was pronounced illegal on the grounds that the
adopted was of a different caste from the adopting widow, and
was an only son (d).
2. 1. — Connexion in Family Generally.
By the birth of a son to one of several brothers, says the
Smriti (e), all become fathers of male offspring. The probable
origin of this notion has already been discussed (/). In the more
recent developments of the law we have seen that a brother
might properly be called in to supply a brother's failure to procure
offspring {g). In this state of the scripture and of custom it was
natural that as adoption gradually supplanted the other methods
of recruiting a family the brother's son should seem the fittest for
adoption. In his case there was a kind of sonship already, so
much so that some writers contended against the necessity of
any adoption at all when there was a brother's son (/i). There
could be no question in his case as to an effective change of gotra
seeing that no change was needed. He would of necessity
sacrifice to the same remote ancestors with the same formulas
as would a begotten son of the adoptive father. Besides these
considerations the preference of a brother's son found a natural
basis in family affection (i), and when the brethren were united,
as in early times they usually were, the interest of all, and of the
children of those who had sons, were better preserved by adopting
a son from amongst the necessary participators of the estate than
by introducing a stranger who would take a part from all the
other members of the family (/c). Amongst remoter relatives these
(d) MS. 1750. It may seem strange that such a question should have arisen,
but the Viramitrodaya, Tr. p. 117, admits a Sudra son by adoption to one of
higher caste. See above, p. 830.
(e) Manu IX. 182; Mit., Chap. I., sec. XI., para. 36; Vyav. May., Chap. IV.,
sec. v., para. 19.
(/) Above, p. 396.
ig) Above, pp. 794, 795.
ih) See Datt. Mim., sec. II. 78.
(i) The Datt. Mim., sec. II. 29, says a half-brother's son is not to be taken
while a whole brother's son is available. There is almost a repulsion between
sons of rival wives. But see below, p. 913.
(k) The nearness which is generally understood as nearness of family
connexion is by some construed as nearness in locality of residence. See
910 HINDU LAW. [BOOK III.
reasons could not operate with the same force. But it was
inevitable that next to a brother's son, a cousin, or a cousin's son
should be sought as the fittest for adoption, and that the order
in point of proximity should become that of practical preference
in selection (l). A man, Vasishtha says, is to adopt the son of
the nearest relative who can and will give one (m) ; but of two
persons equally nearly related, either is eligible (n). Genealogies
carefully preserved indicated at once whence wives might not, and
sons, if need were, might be had ; the gotra invocations were the
same; and the higher deities were worshipped under the same
names and conceptions. It is not surprising that the limitation of
choice which was thus induced in practice should have come to
be regarded by many as necessitated by the law (o); but the
sources do not afford any authority for such a restriction. What
they exact is nearness and likeness, so far as these can be
secured, identity of caste, according to the best interpretations,
and also, but not indispensably, of family or gotra. Amongst
the Sudras the distinctions of gotra in the Brahminical sense
cannot exist (p). Their quasi-gotras mark the more distant
family connexions, but there is no objection to a Sudra adopting
from a gotra different from his own (q).
The question being as to the existence of a legal objection to
the adoption of a son from a remote branch the Sastri answered
only : " The Sastra is in favour of the adoption of a boy belonging
to the near branch " (r). Colebrooke says that only a preference is
Viram. Tr. p. 117. This view seems to be favoured by the Mit., see Chap. I.,
sec. XI., paras. 13, 14, and notes. The Vyav. Mayukha says the nearest by
blood is to be taken, see Chap. IV., sec. V., para. 19, and Datt. Mim. II. 16;
V. 36, 38.
(l) See above, p. 819, as to the superior claims of the nearer relatives.
(m) Vasishtha, Chap. XV. 6.
(n) Sree Brijbhookunjee Maharaj v. Sree Gokoolootsaojee Maharaj, 1 Borr.
181, 202 (2nd ed.).
The Pandits said, "It is written in the Mayukha that it is necessary that
the person to be adopted be of a virtuous disposition, learned, beloved by him
who adopts him, and also be the nearest of kin to him, adding verbally, that
if there were two persons equally near, Maharanee would be at liberty to adopt
either." See Datt. Chand. I. 10; Vyav. May., Chap. IV., sec. IV., para. 19.
(o) See Mit., Chap. I., sec. XI., paras. 13, 36, note; Vyav. May., Chap. IV.,
sec. v., para. 19; Datt. Mim., sec. II., paras. 2, 13.
(p) See Datt. Mim. II. 6 ss. 80.
(q) Rangamma v. Atchamma, 4 M. I. A. 1.
(r) MS. 1640. See Datt. Mim. II. 18.
S. IV.] CONNEXION IN FAMILY GENERALLY. 911
to be given to a brother's son, not so exclusive a preference as to
shut out the exercise of discretion (s). The prohibition against
an adoption of an asagotra is of a moral rather than legal
character (t), and in one case a Sastri expressed the opinion that
" if a Brahman cannot find a person fit for adoption in his own
gotra he may adopt from another gotra a man of thirty having
children " {v). In another case amongst Brahmans, a question
having been put as to the adoption by a widow of a boy whose
upanayana (w) had been performed, the answer was merely that
if a boy of her own gotra could not be obtained she might take
one of another gotra (x).
The general rule of propinquity giving a preference for adoption
is illustrated by the following cases. A few of them admit the
adoption of a younger by an elder brother. Balchandra Sastri
gathered a support for this adoption by inference from the elder
brother's being " in place of a father " (y), but the Smriti had in
view merely the nurture and protection of the family by its head.
The castes do not seem to have admitted this adoption, and it is
opposed to the principle of imitating nature (z). It can hardly be
regarded, therefore, as allowed by the law.
In Brijbhukhan's Case (a) the Sastris say that the person to
be adopted must be the nearest of kin who can be obtained. But
then they add that what has been done conformably to the Vedas
cannot be undone, and that a son taken, not from amongst the
gentiles, even by a widow, is not a mere dharm-putra but a
datta-putra with the full rights of that relation (5). It foUows
that the preference of the nearest is not a matter of legal
obligation.
A widow, on the death of her son, adopted a remoter kinsman
than one who was available, and on his behalf applied for a
certificate of guardianship, which was refused, as the adoption
(s) 2 Str. H. L. 103.
(t) Burma Samoodhany Ummal v. Comara Venkatachella Redayar, M. S. A.
K. 1852, p. Ill; 1 Str. H. L. 85; 2 ihid. 98, 103, 106; Srimati Uma Deyi v.
Gokoolanand Das Mahapatra, L. E. 5 I. A. 40; S. C. I. L. E. 3 Cal. 587.
(v) MS. 1639.
(w) Thread ceremony.
(x) MS. 1617.
iy) Steele, L. C. 44.
(z) See Datt. Mim., Sec. HI. 30.
(a) 1 Borr. E., at p. 214.
(b) 1 Borr. 218.
912 HINDU LAW. [BOOK III.
was prejudicial to rights of nearer heirs, and their consent wa&
not shown to have been obtained to rebut the presumption of
caprice arising from the facts. She was referred to a regular suit
to establish a valid adoption, and directed to renew the application
for guardianship under Act XX. of 1864 (c).
In the following case the Sastri in approving the adoption to
a man of his brother by birth put the permission on the ground
of a total severance of natural ties by the adoption of the deceased
into another family (d). " Adoption," he said, " severs the
connection with the natural relatives so completely that the
adopted son's widow may adopt his younger brother (e). But
consanguinity, according to the general opinion, is not to be over-
looked in adoption any more than in marriage.
Though the adopting brother has been adopted into another
family, several decisions have settled that he cannot adopt his
natural brother, on the ground that consanguinity does not cease
with adoption (/). Thus it has been ruled that a brother cannot
adopt his brother in Maithila (g), or in the Andra country,
Madras (h).
A Maratha, a widow, having adopted her husband's illegitimate
son, his right to inherit was put on his position as a bastard son
of a Sudra (i).
2. 2.— Eelation Between the Boy to be Adopted and the
Adoptive Father through the Natural Father.
This connexion affords, as we have seen, the strongest ground
of preference, but it does not, according to the decisions, give to
the nearer relatives a legal right to impose a son on a person about
to adopt. This would indeed be inconsistent with the affectionate
(c) Bhaguhai v. Kalo Venhaji, Bom. H. C. P. J. 1875, p. 45.
(d) Above, p. 834.
(e) MS. 1625.
(/) Moottia Mudalli v. Uppon Venkatacharry, M. S. D. A. Dec. 1858, p. 117.
See below, sec. VIII.
(g) B. Runjeet Singh v. Ohhye Narain Singh, 2 C. S. D. A. E. 245.
{h) Ramanamall v. Suhan Annavi, 2 Mad. H. C. R. 399; Muttusawmy Naidu
V. Lutchmeedevumma, M. S. D. A. Dec. 1852, p. 96; Moottia Mudalli v. Uppon
Venkatacharry, M. S. D. A. Dec. 1858, p. 117. Not even his half-brother, see
below, sub-sec. 2. 4
(i) MS. 1691.
S. IV.] SON AND ADOPTIVE FATHER. 915
relations which it is an object of the law to foster between those
connected by adoption (k). The limitation of choice has been
thought somewhat stricter in the caso of a widow, and there are
some obvious reasons why this should be so, but in a united family
her necessary dependence secures the desired end, and it cannot
be said that apart from this she is confined to the family or gotra
of her husband by any strictly legal restraint (I).
A near relative of the same gotra, a nephew if possible (m), is
the first choice. Failing such, a distant gotraja. FaiHng him, a
bhinna gotra-sapinda (n). Failing him a non-sapinda of not more
than five years, and whose tonsure (chaula, chuda) has not been
performed. If such an one cannot be obtained then one of greater
ago may be taken (o). Steele gives the order of choice in adoption
according to the customary law of the Dekhan as follows (p) : Any
brother's son should be the first selected for adoption; should
there be none, or should the boy's parents, &c., refuse consent,
his place is to be supplied by — (2nd), Any boy of the same gotra,
and descended from a common ancestor within three generations
(sanghit, sagotra, sapinda) ; (3rd) Any boy connected with the
family by the female line of connexions, for whom funeral cakes
are offered (usagotra sapinda), such are the mother's brother's
son, or the father's sister's son; (4th) Any boy of the same gotra,
descended from a common ancestor within seven generations,
within which degree marriage is prohibited (wirudh sumbhand) —
these relations are called the sagotra dushantil; (5th) Any boy of
the same gotra, the genealogy of whose relationship is otherwise
unknown (sagotramatra) ; (6th) A boy of a different gotra, but
of the same caste (pargotra) — such are the sister's son and
daughter's son, who are adoptible in default of the preceding. A
paternal uncle cannot be adopted, being in place of his father.
Nor a maternal uncle, for " an elder relation " (without regard
to the relative age of the parties) " cannot be adopted."
The castes at Poona answered more simply (q) :
(k) See the texts quoted below.
(l) Srimati Uma Deyi v. Gokoolanand Das Mahpatra, L. E. 5 I. A. 40.
(m) Datt. Mim. II. 67, 73.
(n) As to these terms, see above, pp. 107, 123.
(o) MS. 1672. In Punjab amongst many tribes there is no limit, but the
adoption must preferably be from amongst near kinsmen and must be from the
gotra or tribe. Punjab Customary Law II. 165.
(p) Steele, L. C. 44.
(q) Steele, L. C. 182.
H.L. 58
1)14 HINDU LAW. [BOOK III.
The following relations are to be selected in order: 1, brother's
son ; 2, paternal first cousin ; 3, paternal second cousin ; 4, one of
the same gotra ; 5, one of the same caste, P. Should the party
iinst in order be refused by his immediate family, the caste may
advise, and if they fail to persuade the party, another boy is, witli
their concurrence, to be adopted.
From Khandesh a still simpler answer was received (?•) : ' ' The
son of the nearest relation is to be adopted ; but should his father
not consent, a stranger may be adopted with the consent of several
respectable persons."
" The son of a half brother may be adopted in preference to
the son of a full brother " (s).
The existence of a brother's son does not deprive the uncle of
power to adopt another boy, the selection being a matter of
conscience and not of absolute prescription (t).
" A man may adopt the son of a distant, instead of the son of
a near, kinsman " (v).
" The widow ... is enjoined to give preference to the
nearest relation who is eligible. But the validity of an adoption
actually made does not rest on the rigid observance of that rule
of selection : the choice of him to be adopted being a matter of
discretion " (w). The Sastris have expressed the rule more
strictly. A husband's brother's son, they said, can be adopted by
a widow, even without the injunction of the husband (x). When
such nephew exists, she cannot adopt another without her
husband's injunction (y).
(r) Steele, L. C. 182.
(s) MS. 1627. This is opposed to the Datt. Mim., sec. II. 29.
(t) Gokoolanund Doss v. Musst. Wooma Daee, 15 Beng. L. E. 406; S. C.
23 C. W. R. 340; S. C. in App. to P. C. L. R. 6 I. A. 40; contra, Ooman Dutt
V. Kunhia Singh, 3 C. S. D. A. E, 144, on an adoption in the kritrima form.
See Suth. Syn. Head II. and the comment by the Judicial Committee, L. E.
5 I. A., at p. 53; 1 Macn. H. L. 68; 1 Str. H. L. 85.
(v) MS. 1628.
(w) Colebrooke in 2 Str. H. L. 98. See above, p. 800, note (a).
(x) Huehatrav Mankar v. Govindrav Mankar, 2 Borr. 75 (83 2nd ed.). See
Vyav. May., Chap. IV., sec. V., paras. 17, 18, 19; Datt. Mim., Chap. II., 29,
73; Datt. Chand., Chap. I. 20, 27, 28; Manu XI. 182; Mit., Chap. I., sec. XI.,
para. 36 ss.
(i/) . . . " They (the Shastrees) said, a widow can, by her husband's
injunction, adopt a son, but not without it, but the prohibition is meant against
her taking any other person when the son of her husband's brother exists, whom
she may adopt even without such injunction; for from the words (of Manu,
S. IV.] SON AND ADOPTIVE FATHER. 915
Even amongst the lower castes a Sastri said :
" The deceased husband's brother's son should be adopted by
a Sudra widow. Failing him she may tako any one of the caste
junior to the adopter " (z).
' ' Though the deceased husband desired that the son of his
brother should be adopted, and the brother is willing to give his
son — which the Vyavahara Mayukha allows, though sinful (a) —
yet the widow is not under such circumstances obliged to take
such a son. In taking the son of some other relative, however, she
must have the assent of the relatives " (h).
In one case the Sastri said that a widow cannot adopt her
deceased husband's first cousin (c). But this was founded on his
notion that the adoption of a brother's son was obligatory. In
himself a first cousin of the deceased is a proper person to adopt in
the absence of a nearer relative, i.e. a nephew (d). In Bengal it
was said that whatever the preference due to a brother's son it did
not prevent a resort elsewhere if that son were refused (e). The
same is the law of several Poona castes (/).
2. 3. — Kelation Between the Son to be Adopted and the
Adoptive Father through the Son's Natural Mother.
Contrary to the rule by which the connexion with the adoptive
through the natural father gives at least a religious claim to
preference to the boy thus related, a near connexion through the
boy's mother usually makes adoption impossible. The doctrine
of the imitation of nature prevents a man's standing in the relation
of adoptive father to a son whom he could not have begotten
Chap. 9th, V. 182, quoted by the Zillah Shastrees) found in the Mitakshara,
book second, leaf 55th, page Ist, line 3rd, it appears, that even without the
injunction of her husband, a widow may adopt the son, either of her husband's
eldest, or youngest, brother." 2 Borr. 99.
(z) MS. 1675.
(a) I.e. the only or eldest son. It does not condemn the gift generally. See
Vyav. May., Chap. IV., sec. V. 9, 19.
(5) MS. 1644.
(c) MS. 1703.
(d) MS. 1660.
(e) Gokoolanund Doss v. Musst. Wooma Daee, 15 B. 1/. B. 405, 416; S. C.
23 C. W. E. 340, 341 ; S. C. L. E. 6 I. A. 40.
if) Steele, L. C. 189.
916 HINDU LAW. [BOOK III.
without incest according to the religious law. The prohibited
degrees, however, though observed with strictness by the higher
castes, have been little regarded by the Sudras. The unions of
the latter have not been looked on as having any sacred character,
and the means seldom exist amongst them of tracing quasi-gotra
relationships to any considerable distance. The aboriginal custom
of making a sister's son heir {g) was thus readily moulded to the
needs of a system of adoption, while the daughter's son growing
up in the grandfather's house naturally took the place of the
appointed daughter's son and became recognized, when some
inclusion within the law of adoption was felt necessary, as a fit
subject for adoption (h).
The opinion of the Sastris in the case of Haehut Rao Mankar v.
Govindrao Bulwantrao Mankar (i) declares a son of a daughter,
a sister, or a mother ineligible for adoption, except amongst
Sudras (k). Three at least of the nine Pandits consulted in the
case (i) pronounce expressly against the adoption of a daughter's
or a sister's son. The other six give no opinion on this particular
point. A similar opinion to that of the three is expressed by the
Sastri, above, p. 410, Q. 6.
The general principle recognized in many decisions of the
Courts that adoption is prohibited where the adopter could not
marry the mother of the boy proposed for adoption in her maiden
state (m) is confined to specific instances of a daughter's son, a
(g) See above, pp. 276, 398, and the Mankars' Case, 2 Borr., at pp. 95, 96,
106, 107.
(h) " Adoption of a sister's son is strictly prohibited unless in the case of
Sudras." Ellis, who refers to the Datta Kaustubha, — but this allows such
an adoption in case of necessity, see below. He says the Datta Mimamsa of
Sri Earn admits this in case of necessity, and that in practice it is not uncommon
in all castes. 2 Str. H. L. 100, and Stokes's H. L. B. 653. " Not regarding
the putrika-putra as a subsidiary son, his affiliation (it would not be unreason-
able to infer) would be valid in the present age." Sutherland, 2 Str. H. L. 201.
See also Sutherland's Syn., note I.
(i) 2 Borr. 106.
(k) Macn. Cons. H. L. 149, 164; 1 Str. H. L. 71; 2 ihid. 77. See above,
pp. 800, 801. Bhagwan Singh v. Bhagwan Singh, L. K. 26 I. A. 153; Ram-
Chandra v. Gopal, I. L. K. 32 Bom. 623; Walhai v. Heerbai, I. L. E. 34 Bom.
491; Yamnava v. Lakshman Bhumoo, I. L. E. 36 Bom. 533.
{D 2 Borr. E., at p. 106.
(m) Shrinivas Timaji v. Shintaman Shivaji, S. A. 587 of 1866; Jivanee
Bhayee v. Jivu Bhayee, 2 M. H. C. E. 462; Sriramulu v. Ramayya, I. L. E.
3 Mad. 16.
S. IV.] SON AND ADOPTIVE FATHER. 917
sister's son, and the mother's sister's son (n) ; and thus a widow
has been held competent to adopt her brother's son in
Bombay (o), Madras (p), and Allahabad (q). In Puttu Lai v.
Parhati Kunwar (r) their Lordships of the Judicial Committee
have held to the same effect, laying down that the gloss by Nanda
Pandit or Dattaka Mimamsa must be accepted with caution. It
has been recognized that the rule is not binding on Sudras.
Thus it has been held that a Lingayat (as being a Sudra), or a
Kayastha (s), may adopt a sister's or a daughter's Bon, but a
member of a higher caste may not, in the absence of a special
custom. The doctrine of factum valet does not validate such an
adoption (t).
The adoption of a brother was disallowed in Madras (v).
The adoption of a sister's son is invalid, according to the
decisions, as it imports incest not only among Brahmins (w), but
generally in the three regenerate classes, except perhaps the
Vai&yas (x) ; in the Dravida country (y) ; in the Andra country (z) ;
in the North -West Provinces (a).
(n) Ram Chandra v. Gopal, I. L. K. 32 Bom. 623; Walhai v. Heerbai,
I. L. R. 34 Bom. 491 ; Yamnava v. Lakshman, I. L. R. 36 Bom. 533; Jai Singh
Pal Singh v. Biji Pal, I. L. R. 27 All. 417 ; Bhagwan Singh v. Bhagwan Singh,
L. R. 26 I. A. 153.
(o) Bai Nani v. Chuni Lai, I. L. R. 22 Bom. 973.
(p) Sriramulu v, Ramayya, I. L. R. 3 Mad. 16; Ragavendra Raw v. Jayaram,
I. L. R. 20 Mad. 283.
iq) Jai Singh Pal v. Biji Pal, I. L. R. 27 All. 417.
(r) L. R. 42 I. A. 155.
(s) Rajcoomar Lall v. Vissessur Dyal, I. L. R. 10 Cal. 688 ; Ramalinga
Pillai V. Sadasiva Pillai, 9 M. I. A. 506.
(t) Gopal N. Safray v. H. G. Safray, I. L. R. 3 Bom. 273, 298.
(u) Muthuswamy Naidu v. Latchmeedavamma, M. S. D. A. R. for 1852,
p. 96. See above, p. 865.
(w) Datt. Mim. II. 91-93 ; Datt. Chand. I. 17 ; 2 Str. H. L. 100 ; Doe dem
Kora Shunko Takoor v. Behee Munnee, East's Notes, Case 20; 2 Mor. Dig.,
p. 32; Nursing Narain v. Bhutton Loll, Sp. No. C. W. R. 194. This case
pronounces against the legality of the putrika-putra in the present day.
(x) Ramalinga Pillay v. Sadasiva Pillay, 9 M. I. A. 506; S. C. 1 C. W. R.
25 P. C. The Vaisyas are only partially recognized. See Steele, L. C. 90.
(y) Gopalayyan v. Raghupatiayyan, 7 M. H. C. R. 250.
(z) Narasammal v. Balaramacharloo, 1 M. H. C. R. 420.
(a) Luchmeenath Rav v. Musst. Bhima Baee, 7 N. W. P. R. 441, 443.
In the Punjab the objection to sisters' or daughters' sons arises from their
taking the property into another got. The consent of the male relatives,
therefore, is required. Punjab Customary Law, 11. 156.
918 HINDU LAW. [BOOK III.
" If a Prabhu cannot obtain a son of his own gotra he may take
from another, except the son of a sister or daughter " (b).
The husband's brother's grandson (grand-nephew) may be
adopted, as the adoptive father could have married the nephew's
wife in her maiden state (c).
The adoption of a first cousin's daughter's son having been
recognized for a long time, was upheld (d).
An adoption by a Brahman of his daughter's son was pronounced
invalid, though it was strongly asserted in the particular case to
be in accordance with the custom which prevailed among the
caste. A few instances to the contrary, adduced to prove a special
custom holding such adoptions valid, were set aside as insufficient
by the Bombay High Court (e). A special custom, favouring
adoption of a sister's son in the Dravida country by Brahmans,
was similarly refused recognition by the Court (/). The sub-
ordination of particular usages to the general customary law is
discussed in the Naikins' Case {g).
" A (Sudra) widow may adopt her husband's sister's son " (li),
as the husband himself could have done.
A sister's son is incompetent to question an invalid or illegal
adoption on the part of his maternal uncle in Benares (i) and in
Maithila (fe).
(b) MS. 1613. As to the Parbhus, see Steele, L. C. 89, 94.
(c) Morun Moyee Dehia v. Bejoykisto Gossamee, Cal. F. B. E. 121.
(d) Lakshmapya v. Ramapa, Bom. H. C. P. J. F. for 1873, p. 59. This
case, from the Southern Maratha Country, was disposed of conformably to the
laxness of the law there as to prohibited degrees already noticed.
The legality of marriage between an uncle and niece was denied in
Ramanagavda v. Shivaji, Bom. H. C. P. J. 1876, p. 73 (the parties being
apparently Lingayats of the Southern Maratha country), but an application
for review (ibid. p. 154) was dismissed on the ground that the suit was barred
by limitation.
(e) Gopal Narhar Safray v. Hanmant Ganesh Safray, I. L. E. 6 Bom. 109.
This case illustrates the difficulty of establishing a particular custom of a caste
or sect diverging from the general law. It will be seen below that there is
considerable authority for the practice.
(/) Gopalayyan v. Raghupatiyyan, 7 M. H. C. E. 250.
In the Panjab, it may be noticed, adoption may be made of a relative through
a female. See Tupper, Panj. Customary Law, vol. II., p. 111.
(g) I. L. E. 4 Bom., at p. 667 ss.
(h) MSS. 1622, 1706. The parties, though the caste is not explicitly stated,
must have been Sudras.
(t) Thakoorain Saluha v. Mohun Lall, 11 M. I. A. 386.
(k) Musst. Mooneea v. Dhurma, 11 M. I. A. 393.
S. IV.] SON AND ADOPTIVE FATHER. 919
As to the daughter's son the Sastris have said: " A Brahman
cannot adopt his daughter's eon " (i); and " The adoption of a
daughter's son is invalid. Though Pandits differ, the texts do not
differ " (m). Again, to a question whether a daughter's only son
could be adopted by her father in pursuance of an agreement with
her husband at the time of marriage, the Sastri says only " the
adoption of a daughter's son is forbidden " [n).
On the other hand the Pandits of the Poona College on the
authority of the Samskara Kaustubha and the Nirnaya Sindhu
admitted the adoption of a daughter's or a sister's son in default
of boys available within the adoptive father's own gotra (o).
In the South Maratha country the customary law allows the
adoption of a daughter's son with the consent of the kindred of
the adopter (p).
It is valid in Saraogi Agarvali caste, which is a sect of the
Jains (q).
The son of a woman adopted by her paternal uncle was
pronounced entitled to the management of business as Muttadar
Patel, while the widow of the deceased nephew was pronounced
heir to his property (r).
In SomcLsekhdra v. Subhadramaji (s) the Court declined to
express an opinion on the validity of an adoption of a son whose
mother was second cousin of the adoptive father. As a marriage
would have been impossible between the real mother and the
adoptive father the adoption would be invalid judged by that test.
(l) MS. 1638; Bhagwan Singh v. Bhagwan Singh, L. E. 26 I. A. 153; Ram-
chandra v. Gopal, I. L. R. 32 Bom. 623; Walhai v. Heerbai, I. L. R. 34 Bom.
491; Yamnava v. Lakshman Bhumoo ,1. L. R. 36 Bom. 533.
(m) Jivanee Bhayee v. Jivu Bhayee, 2 M. H. C. R. 462; Nursing Narain v.
Bhutton Lull, Sp. No. C. W. R. 194.
(w) MS. 1633. This question indicates a clinging to the ancient institution
of the putrika-putra. See above, pp. 793, 800, 801.
(o) Steele, L. C. 44. See above, pp. 800-1 ; 2 Borr. 95, 96.
(p) Steele, L. C. 183.
The fitness of a daughter's son for adoption, where it is recognized by the
higher castes, may be traced either to the institution of the appointed daughter
(see above, pp. 800, 801) or to the imitation of their low caste neighbours at the
prompting of natural affection.
(q) Sheo Singh Rai v. Musst. Dakho, N. W. P. H. C. R. 382; S. C. L. R.
5 1. A. 87 ; S. C. I. L. R. 1 All. 688.
(r) MS. 5. Nothing is said of the caste, or of division or non-division.
Division and Sudra caste seem to be assumed. If the widow of the nephew
had adopted a contest might have arisen such as is referred to at p. 889, note (c).
(s) I. L. R. 6 Bom. 624
920 HINDU LAW. [BOOK III.
Where the adoption of a sister's or a daughter's son is allowed
the test seems inapplicable. In the South, whence the case came,
marriage with a sister's daughter is common even amongst
Brahmans, and custom is, to say the least, lax in restricting
adoptions. It would seem therefore that the adoption in question
was not open to objection on the ground of prior family connexion
between the parties.
In one case (t) the opinion seemed to be held that a man could
adopt his wife's sister's son, but that this had been invalid in the
particular case as tending to deprive the heirs of their right of
succession (v).
There is of course less objection to the adoption of a father's
brother's son or a mother's brother's son than to adopting a father's
sister's son or a mother's sister's son (w).
2. 4. — Eelation Between the Son to be Adopted and the
Adoptive Mother.
The principle of an imitation of nature operates, though less
conspicuously, in the case of a blood connexion between the
proposed adoptive mother and son as between the adoptive father
and son.
In the earlier form of the law as the relation of the adopted son
to his adoptive mother was merely incidental, the doctrine of a
possibility of union between her and the real father seems not to
have been developed. It grew up as natural feeling gradually gave
to the adoptive mother, as compared with the adoptive father, a
more and more important relation to the child whom they brought
up as their own. Then as the condition was accepted of a possible
union of the real mother with the ideal father to produce the
adopted son, a corresponding notion was suggested of a similar
necessary relation between the ideal mother and the real father (x).
(t) Baee Gunga v. Base Sheoshunkur, Bom. Sel. E. 73; Bat Nani v. Chuni
Lai, I. L. R. 22 Bom. 973.
(c) This case is discussed above, p. 841.
{w) Shrinivas Timaji v. Chintaman Shivaji, S. A. 587 of 1866. See Datt.
Mim. II. 107, 108.
(x) See above, p. 796. In a footnote at 1 M. H, C. R. 427 to Narsarammal
V. Balarama Charlu, ibid. 420, several cases are quoted to show that there
must have been a possibility of legal union between the adoptive father and
the real mother. One is cited from Macn. Cons. H. L. 170, to show the need
of a similar relation between the adoptive mother and the real father.
S. IV.] SON AND ADOPTIVE MOTHER. 921
Thus it came to be admitted, though not at all universally, that
where the real father and the adoptive mother could not, without
incest, have joined in procreating the boy, he is not a fit subject
for adoption (y). Such at least is the rule followed by most of the
authorities. Others are more indulgent. A deceased wife's
connexion with the family whence the boy is to be taken is not
recognized as an obstacle to his adoption. This may be taken as
a sign of the imitative character of the doctrine. The relation of
a deceased adoptive father to the real mother is an obstacle in
the same cases as if he were alive, but on the other side the
imitation has not proceeded beyond the relation of an adoptive
mother still living.
In several instances the fitness for adoption has been pronounced
on solely by reference to the connexion between the boy's real
mother and his adoptive father, when the only question under the
Hindu Law was whether the relation between the real father and
the adoptive mother prevented a valid adoption. The Dharmad-
vaitta Nirnaya allows the adoption of the wife's blood relatives,
but this is opposed to the general sense of the authorities {z) as
regards the higher castes. The two following cases will serve for
further illustrations.
In the first it was ruled that the adoption of a wife's brother is
valid (a), as the adopter could have legally married adoptee's
mother in her maiden state (6).
In the second it was laid down that —
1. The son of a wife's brother may be adopted.
2. The rule of Hindu Law that a legal marriage must have
been possible between the adopter and mother of the adoptee
refers to relationship prior to marriage.
3. This rule has nothing to do with the case of a stepmother
in her virgin state, accordingly a half-brother cannot be adopted (c).
When the connexion between the propositus and the intended
adoptive mother arises through the boy's mother, such a relation
iy) Datt. Mim. sec. II. 32, 33. The living wife must (religiously) join in
an adoption. As a widow she adopts to her husband, but he surviving does not
adopt to her.
(z) See Datt. Mim., sec. II. 33, 34.
(a) Runganaigum v. Namasevoya Pillai, M. S. D. A. Dec. 1857, p. 94.
(b) Kristniengar v. Venamamalai Jyengar, M. S. D. A. Dec. 1866, p. 213.
(c) Sriramulu v. Ramaya, I. L. K. 3 Mad. 15. The sense of this is that
though the particular restriction would not operate, another one does, which
prevents an allowance of adoption which would otherwise follow
922 HINDU LAW. [BOOK III.
creates no obstacle to adoption. Two sisters or two female cousins
could not possibly be parents of the same boy, so that the
ceremonial relation does not in this case imitate anything legally
impossible.
Thus a man may adopt his wife's sister's son (d).
" A widow may adopt her sister's son if this be consistent with
the custom of the caste "(e).
A widow may adopt her brother's son (/).
2. 5. — Family Connexion with the Adoptive Parents
Amongst Sudras.
It has been pointed out (g) that the practice of adoption amongst
the lower castes is probably a mere graft of Brahmanical usage
upon a primitive stem of a very different kind. The result shows
signs of this composite origin. The aboriginal tribes had a family
system of their own, which in some form they must retain. The
marriage of first cousins, marriage of an uncle and niece, heirship
of a sister's son, reception of a daughter's husband as quasi-son
when there was no real son in the way; for all these and other
customs room had to be found in the Brahmanical system before
the uncivilized converts could be subdued to it (h). Similarly in
the case of adoption the practice of succession of a sister's and of
a daughter's son had to be admitted; it was brought within the
general system by widening the gateway of adoption in the case
of Sudras, who in their turn were so far influenced by the ideas
of their more intellectual neighbours, that in most cases they
gradually accepted adoption as necessary to fully constitute the
heritable right (i). Concurrently with these changes vicarious
sacrifices were allowed {k) for those who, under the antique scheme
of religion, were wholly excluded from spiritual benefits (Z).
Adoption became ceremonial, yet not so essentially ceremonial but
(d) 2 Str. H. L. 106.
(e) MS. 1708.
(/) Bai Nani v. Chunilal, I. L. R. 22 Bom. 973.
(g) Above, p. 826 ss.
(h) See above, pp. 800, 801.
(i) Comp. p. 823.
{k) Comp. Manu X. 126, 127.
[l) Above, pp. 81]. 823, 831; 2 Str. H. L. 263.
S. IV.] FAMILY CONNEXION. 92B
that a giving and taking might be effectual without symbolical
acts, or sacrifices, or recitation of sacred formulas (m). The
customs springing from natural loathing of incestuous unions were
referred to the principle of the family and gotra as conceived by
the twice-born; and even spiritual benefits, it became dimly
recognized, might be secured through the proper ministers by the
low-caste son for his low-caste father. Still the marriage and the
adoption of a Sudra could never be regarded by the depositaries of
the sacred traditions but with a kind of contempt. It was of
little consequence in their eyes whether purity from physical or
spiritual contamination was preserved amongst people who had
no devolution of sacra as contemplated in the Veda {n), and with
whom there was no association on the part of the higher classes
that would not honour them. Thus the disdain inspired by caste
feeling joined with the desire of gain and of importance to make
the Brahmans admit Sudra adoption with the peculiarities that
it still presents. Whether in those cases in which the Brahmans
themselves follow usages generally peculiar to the lower castes
this is to be ascribed to a special development of their own original
system or to the mere influence of a majority rising gradually in
the social scale (o) is a question which cannot at present be
answered very decisively. It seems likely that in some cases at
least there has been a mixture of classes and of customs which
descendants aiming at a higher rank have set themselves to forget
as completely as possible (p).
Some instances have already been given of the relaxation of
the ordinary rules of adoption in favour of Sudras as contrasted
with the higher castes. Several other points are brought out by
the opinions and the decisions, the chief of which are the
following :
(m) See above, p. 824 ss.
(n) Datt. Mim. 11. 80.
(o) See above, p. 825.
ip) See above, p. 807. It is not a very unusual thing for a man of dubious
caste position, who has got up in the world, to assume the sacred thread which
he never wore before. A story is got up of his connexion with a regenerate caste
much as a pedigree is made to order in Europe, and Brahmans are not wanting
to perform the rites of investiture. It has sometimes even been a matter of
discussion in a caste whether though hitherto uninvested they might not assume
the thread and claim rank at least as Vaisyas. The expense of the ceremonies
stands in the way. See further below, sec. VI. D. 1. 2.
924 HINDU LAW. [BOOK III.
Consanguinity does not invalidate an adoption where the parties
involved do not belong to any of the three regenerate castes (q).
" A Sudra may adopt a sister's son " (r).
" A Sudra only may adopt a sister's or daughter's 6on " (s).
" A brother's or sister's son may be adopted by a sister or
brother amongst Sudras only " (t).
" A Lingayat may adopt his daughter's son " (y).
In the Bombay presidency it might seem from the case quoted
below that the adoption of a sister's son by a Vaisya was
allowed {w), and the language of the judgment is so general as to
extend to all classes, but the parties were in fact Lingayats, and
Lingayats are Sudras (x), amongst whom no doubt the sister's or
the daughter's son is the most proper for adoption (y). The Sudra
is bound to adopt a daughter's or a sister's son according to the
Mayukha if one is available (z). This obligation, however, cannot
probably be ranked higher than the ordinary one to adopt the son
of a near sapinda which has been pronounced to be merely religious
or discretional (a).
In a Madras case it was said in argument before the Judicial
Committee that the parties were Vaisyas (b). If they were the
decision is an authority for the legality of a Vaisya's adopting a
sister's son in that province, but it would be desirable to have
had the caste more satisfactorily established.
It is allowed amongst Jains as a law of the caste (c).
The adoption of a sister's son allowed in Bengal in a case noted
below (d) was afterwards pronounced invalid there (e) though
allowed in Maithila (/).
iq) Nunkoo Singh v. Purm Dhun Singh, 12 C. W. E. 356.
(r) MS. 1749. (s) MS. 1636. (t) MS. 1672.
(tj) MS. 1641. The Sastri quotes Vyav. May., Chap. IV., sec. V. 9, which
relates to Sudras.
(w) See Gunpatrao v. Vithoha, 4 Bom. H. C. R. 130 A. C. J.
(x) See below, and I. L. E. 3 Bom. 273.
iy) Above, p. 824.
iz) Above, pp. 823, 824; Datt. Mim. II. 74 ss.
(a) Above, p. 800, note (a); Datt. Mim., sec. II.
(b) Ramalinga v. Sadasiva Pillai, 9 M. I. A. 506; S. C. 1 C. W. E. 25 P. C.
(c) Hasan Ali v. Naga Mai, I. L. E. 1 All. 288.
id) Macn. Consid. H. L., p. 167.
(e) Doe dem Kora Shunker v. Behee Munnee, East's Notes, Case XX.;
2 Mor. Dig., p. 32.
if) Chowdree Purmessur v. Hunooman Dutt, 6 C. S. D. A. E. 192.
S. IV.] FAMILY CONNEXION. 925
A Sudra's widow having adopted her daughter's illegitimate son,
the latter was pronounced heir both as grandson and as adopted
son (g).
" A Wani, being a Sudra, may adopt his sister's son " (h).
' ' Adoption of a first cousin is forbidden among Sudras ' '
(there having been apparently a sister's or a daughter's son
available) (i).
The adoption of a mother's sister's son is valid among
Sudras (fe).
Apart from the indulgence conceded as to the adoption of sons
of female blood relatives, the rules of adoption amongst the Sudras
as to the choice of a boy do not differ essentially from those of
the other castes. The necessity, whether legal or religious, of
taking the nearest relative in preference to the more remote, or
to a stranger, is hardly dwelt on by the Sastris, and is treated in
practice merely as a counsel of perfection, which may be followed
or disregarded. Many castes, which are really sub-divisions of
the Sudra class, decline to recognize this, and affect in some
particulars the customs of the twice-born, as in the case of the
closer relations which prevent adoption. The remoter relations
are hardly recognized, but adoptions seem to be generally for-
bidden (i) which would involve a kind of absurdity, as ex. gr. the
adoption of an uncle or one older than the adopter (m).
" A Mhar may adopt a cousin's son in preference to a brother's
son " (n).
A Hindu may adopt an asagotra among the Sudras (o).
' ' A Sudra may adopt from an illegitimate branch of his family,
though there be eligibles of a legitimate branch " (p).
(g) MS. 236.
(h) MS. 1624.
(t) MS. 1618.
{k) Chinna Nagayya v. Pedda Nagayya, I. L. K. 1 Mad. 62.
(0 Steele, L. C. 184.
(m) Op. cit. 388.
(n) MS. 1630.
(o) Rungamah v. Atchummah et ah, 4 M. I. A. 1; S. C. 7 C. W. R. 57, P. C. ;
Lakshmappa v. Ramava, Bom. H. C. P. J. 1875, p. 394; S. C. ; 12 Bom.
H. C. E. 364. See above, p. 824, and 2 Str. H. L. 89.
(p) MS. 1646.
926 HINDU LAW. [book III.
3. — Eelation of the Son to be Adopted to his Family of Birth.
The cases of an only son (q), and of the eldest son (r) have
already been dwelt on. The relation next to these in practical
importance is that of the orphan (s). The svayamdatta or son
«elf -given is, as we have seen (t), not recognized in the present
age, and the Sastris have disallowed the adoption of a man other-
wise eligible, because his parents having died there was no one
who could give him in adoption (v). The giving by an eldest
brother as head of the family, though there is some authority
for it (w) amongst the castes, is not contemplated by the sacred
formulas, and has been condemned by high authorities (x).
The ceremonies of adoption are equally unadapted to the gift
of an adopted son, and such a gift is not contemplated by the
Hindu Law. The adopted son must generally be an only son, but
even when a son has been born there is no formula adapted to
the purpose of transferring the adopted son (y) to another family.
There is none even for restoring him to his family of birth (z).
3. 1. — Eelation of Son to be Adopted to his Family of Birth —
An Only Son.
In Radha Mohun v. Hardai Bibi (a) the Judicial Committee
have laid down that an only son may be given and taken in
adoption according to the Hindu Law.
An only son may be given as a dvyamushyayana (b).
In Madras such an adoption has been held valid (c), and also
(q) Above, p. 818.
(r) Above, p. 820.
(s) Above, p. 806.
(t) Above, p. 807.
(v) P. 832; Balvantrao v. Bayahai, 6 Bom. H. C. K. 83 0. C. J. ; Bashetiappa
V. Shivalingappa, 10 Bom. H. C. K. 268.
(w) Veerapermal v. Narain Pillai, 1 Str. K. 91.
(x) See p. 832. Macn. Cons. H. L. 207, 228; 1 Mor. Dig., p. 19.
iy) See above, p. 808.
(z) See above, p. 832, note (z), and below, sec. VII.
(a) L. E. 26 I. A. 113.
(b) Raja Shumshere Mul v. Ranee Dilraj Koer, 2 C. S. D. A. E. 169.
(c) Chinna Gaundan v. Kumara Gaundan, 1 Mad. H. C. E. 64.
s. IV.] son's relation to family of birth. 927
in the North- West Provinces {d). The principle was applied in
these cases of factum valet (e).
Among Sudras of the Lingayat caste, an only son can be given
in adoption (/).
There have been a few cases in which the adoption of an only
son has been recognized even in Bombay (g).
The doctrine of factum valet has been supposed to give efficacy
even in Bengal (h) to the kind of adoption in question. The
adoption of an only son, though criminal, cannot perhaps be set
aside (i), it was said.
In Madras it was at one time held that it was not lawful for
a brother to adopt the only son of a brother in -preference to his
uncle's son; but in the sense that such an adoption involves both
the giver and the receiver in sin, not that it is legally invalid {k).
In other cases it has been said that —
The adoption of an eldest or only son is sustainable if made
by a paternal uncle (l). He would generally be taken as a
dvy amushy ay ana .
A dvyamushyayana is not recognized in the present age (m),
according to the late Sadr Court of Madras. The legality of the
dvyamushyayana, however, has been recognized by the Judicial
Committee (n), and, as the cases show, this form of adoption "s
not at all uncommon in some districts of the Bombay Presidency.
The following are two instances —
(d) See above, p. 817.
(e) Hanuman Tiwari v. Chirai et al., I. L. E. 2 All. 164.
(/) Basava v. Lingangavda, I. L. E. 19 Bom. 428.
ig) Abaji Dinkar v. Gungadhur Wasoodev, 3 Morris S. D. A. E. 420, 423;
R. Vyankatrav v. Jayavantrav, 4 Bom. H. C. E. 191 A. C. J.
(h) Col. Dig., Book V., T. 273 Com. sub. init.
(i) Nundram et al. v. Kashee Pande et al, 3 C. S. D. A. E. 232; S. C.
4 C. S. D. A. E. 70; 1 Str. H. L. 87. The effect of the case is given as stated
in Chinna v. Kumara Gaundan, 1 M. H. C. E., at p. 57, but the point was
not really decided so as to support the decision in Fulton's Eeports, I. 75.
(k) Arnachellum Pillay v. Jyasami Pillay, 1 M. S. D. A. E. 154.
(I) Perumal Nayker v. Potteeammal, M. S. D. A. Dec. 1851, p. 234;
Gocoolanund Doss v. Musst. Wooma Daee, 15 Beng. L. E. 405; S. C. 23
C. W. E. 340; Chinna Gaundan v. Kumara Gaundan, 1 Mad. H. C. E. 54
(reviewing Perumal Nayker v. Potteeammal).
(m) Annamala Auchy v. Mungalum, M. S. D. A. E. 1859, p. 81.
(n) See above, pp. 808, 819.
928 HINDU LAW. [BOOK III.
" An agreement may be made at the time of adoption that the
son shall represent both fathers, but without this he cannot
succeed to his natural father's property " (o).
' * If a Brahman adopts a boy of a different gotra the presumption
is that he has taken him as a dvyamushyayana " (p).
The decisions seem to show that this kind of adoption is
generally legal (q). Thus :
The only son of a brother may be adopted in Maithila (r).
The only son of a person may be adopted by another, on
condition that he becomes a son of both of them (s). It is
presumed from such an adoption {t) that the son became a
dvyamushyayana .
3. 2. — Eelation of Son to be Adopted to his Family of Birth —
Eldest Son.
The grounds of distinction between the cases of the eldest son
and the only son have been discussed in a preceding section {v).
The Mitakshara is distinctly opposed to the gift of an eldest equally
as to that of an only son (w), but the Dattaka Mimamsa (x) and
Dattaka Chandrika (y), though they prohibit the gift of an only
(o) MS. 1692.
(p) MS. 1675. A similar presumption arises where an only son or eldest son
has been given to his uncle. Nilmadhah Dass v. Biswambhar Dass, 13 M. I. A.
85, 101. See Datt. Mim., sec. IV. 32. In Chinna Gaundan's Case, 1 M. H.
C. E., at p. 55, Scotland, C. J., refers to Sy. Joymony Dossee's Case, Fult. 75,
as establishing that a condition of double sonship will be presumed after
adoption in every case, but that could not be so where a dvyamushyayana is
not admitted, see above, p. 809.
iq) See p. 927, note (k).
(r) 2 Macn. H. L. 197. The adoption was in the Kritrima form. As to
which see below, and 7 C. W. E. 700.
(s) R. Shumshere Mull v. Ry. Dilraj Konwar, 2 C. S. D. A. E. 169.
(t) Sy. Joymony Dossee v. Sy. Sihosoondry Dossee, 1 Fult. 75; Nilmadhah
Dass V. Biswambhar Dass, 12 C. W. E. P. C. 29; 3 Beng. L. E. P. C. 27;
S. C. 13 M. I. A. 85. The presumption extended to cases other than those of
adoption of a brother's son tends to nullify the general rule, but an only son
can properly be given only to his uncle as a dvyamushyayana. See above,
p. 808 ss.
{v) Above, pp. 819, 820.
{w) Mit., Chap. I., sec. XI., paras. 11, 12.
{x) Sec. IV.
iy) Sec. I.
s. IV.] son's relation to family of birth. 929
son, are silent as to the eldest son. This may be taken as a tacit
allowance oi the adoption of such a son on the principle frequently
repeated that " when there is no prohibition there is assent " (z).
The Vyavahara Mayukha {a) assumes that the Mitakshara
allows the legality while it asserts the sinfulness of the gift of
an only or an eldest son. It then goes on to refute the supposed
permission and maintain that neither an only son nor an eldest
son can be given (b). Now it is true no doubt that Vijnanesvara
in his disquisition on the nature of property (c) dwells on its secular
character and the possibility of acquiring it without reference to
the ceremonial rules provided for spiritual purposes (d). But he
does not admit that acquisition without regard to the means
produces property (e). He regards what is unfit to be given as
incapable of being taken by gift (/) and could not apparently {g),
any more than Nilkantha himself, hold the adoption of an eldest
son valid (h). The legal possibility of this adoption must rest
on the absence of any distinct condemnation of it in the older
sources of the law, and on the allowance, though a grudging
allowance, of it by custom (f), and at least by implication in some
writers of high authority. For the Bombay Presidency the matter
may perhaps be considered closed by the case of Kashibai v.
Tatia (k), which gave effect to the adoption of an eldest son.
(z) Datt. Chand., sec. I., para. 32; Vyav. May., Chap. IV., sec. V., para. 18.
(a) Chap. IV., sec. V., paras. 4, 6.
(6) Chap. IV., loc. cit., and para. 36.
(c) Mit,, Chap. I., sec. I., para. 8 ss.
(d) Comp. the Sarasvati Vilasa, sec. 472. And for the special character of
reUgious gifts, Mit., Chap. I., sec. VIII., para. 8.
(e) Loc cit., para. 11.
(/) 2 Str. H. L. 433; Colebrooke, loc. cit., shows that the Smriti Chandrika
and the Madhaviya agree with the Mitakshara in regarding a forbidden gift
as invalid. Compare the passage quoted Vyav. May., Chap. IX., para. 3.
ig) The sin, he says, is the parents' who give without necessity; an only
son or an eldest son is not to be given at all. See Mit., Chap. I., sec. XI.,
paras. 11, 12.
{h) The Viramitrodaya (Transl., pp. 115, 117) is opposed to the gift of an
only and of an eldest son, but says nothing of the allowance of either by
Vijnanesvara.
(i) See Steele, L. C. 183, where the gift of the eldest is disapproved, while
the gift of the only son is forbidden.
(k) I. L. E. 7 Bora. 225. It was ruled that the adoption of -an eldest son
was permissible though not approved, the authorities against such an adoption
H.L. 59
I
930 HINDU LAW. [BOOK III.
In Bomlingappa's Case it was held that the adoption of an eldest
son was invalid in the southern Maratha country (/), The Sub-
ordinate Judge, after consulting the Sastri, had found this adoption
good, as being that of a nephew, and this seems to have been
approved by the Sadr Court in a later case (m).
In Bengal an adoption of the eldest of several sons is
allowable (n).
The adoption of an only son being allowed (o) it follows a fortiori
that an eldest son may be adopted (p). In Bombay the opinions
of the Sastris have not been uniform. Thus it was said " an
adoptive son should not be the only or the eldest son of his
father " (g). " The eldest surviving son must not be given in
adoption " (r). And again, " the giving of an eldest son is a sin :
some hold that an only son can neither be given nor taken " (s).
But on the other hand — " Though a man's eldest son be dead, the
next may be given in adoption " (t). And '* the eldest of several
sons may be given in adoption " {v). In another case the Sastri
said " the eldest son may be given in adoption to a widow " {w).
The case of Mhalsahai v. Vithoha (x), upholding the gift by a
widow of her eldest son, was dissented from by Sir M. Westropp,
C.J., in Lakshmappa v. Ramava (y). The adoption of an eldest
son is undoubtedly disapproved by Hindu Law (z), but all that it
being much less numerous and emphatic than those condemning the adoption
of an only son. This was followed in Jamunahai v. Raychand, ibid. 229; see
2 Str. H. L. 105.
(I) See 12 Bom. H. C. R., at p. 383.
(w) Ibid., pp. 387, 388.
(n) Janokee Debea v. Gopaul Acharjea et al., I. L. R. 2 Cal. 365.
(o) Radha Mohun v. Hardai Bibi, L. R. 26 I. A. 113.
(p) See above, p. 927.
(g) MS. 1672.
[,r) MS. 1647.
is) MS. 1682.
(t) MS. 1685.
iv) MS. 1621.
iw) MS. 1612.
{x) 7 Bom. H. C. R. xxvi. App.
iy) 12 Bom. H. C. R., at p. 394.
{z) Nilmadhab Dass v. Biswambhar Dass, 12 C. W. R. P. C. 29; S. C.
3 Beng. L. R. P. C. 25 ; S. C. 13 M. I, A. 85 ; Jugbundoo Run Sing v. Radasham
Narendro, C. S. D. A. R. for 1859, p. 1556. An eldest son cannot be given
in adoption according to Mit., Chap. I., sec. XI., p. 21; Colebrooke, 2 Str. H. L.
105. So Ellis, ibid., who says some authorities make exceptions. The eldest
son of a brother, however, may be adopted (1 Str. H. L. 85) as an adult.
s. IV.] son's relation to family of birth. 931
seems safe to say on the authorities is that the adoption of an
eldest son is improper, not that it is invalid (a), as is the adoption
of an only son (b).
Even by those who object to the gift of an eldest son it is
admitted that if a person has by his first wife a son, and by his
second wife several sons, the eldest of the latter may be given or
received in adoption (c). It is also recognized that the subsequent
death of the elder son does not render invalid an adoption of a
second son in the lifetime of the elder son (d).
3. 3. — Eelation of Son to be Adopted to his Family of Birth —
Youngest Son.
The Dakhan castes disapproved the gift of the youngest son
out of three or more (e), and a doubt seems sometimes to have
been felt as to the lawfulness of such a gift. It is not, however,
condemned by any recognized authority. A Sastri's response on
a case submitted to him was " The youngest son may properly
be given in adoption to a man of a different gotra. The Sastras
forbid giving an eldest but not a youngest son " (/).
3. 4. — Eelation of the Son to be Adopted to his Family of
Birth — Amongst Sudras.
Although the gotra relation in its stricter sense does not subsist
amongst Sudras, yet propinquity is recognized as giving rise to
(a) Dehee Dial et al., v. Hurhor Singh, 4 C. S. D. A. K. 320; Veerapermal
Pillay V. Narain Pillay, 1 Str. E. 91; Col. Dig., Book V., T. 273 Com.; Mit.,
Chap. I., sec. XI., para. 12; 2 Str. H. L. 81, 105; Vyav. May., Chap. IV.,
sec. v., para. 4.
(b) Datt. Mim., sec. IV. 1 ss. ; Datt. Chand. sec. I. 29, sec. III. 17; Steele,
L. C. 183; 2 Macn. H. L. 182, 195; Macn. Cons. H. L. 126, 146, 147; 2 Str.
H. L. 105.
The references show a general condemnation of the giving of an eldest son,
but less decisive and unanimous than in the case of an only son.
(c) Veerapermal Pillay v. Narain Pillay, 1 Str. E. 91.
(d) Musst. Dullahh De v. Manee Bihi, 5 C. S. D. A. E. 50 ; Nilmadhah Dass
V. Biswambhar Dass, 12 C. W. E. P. C. 29; S. C. 3 Beng. L. E. P. C. 27;
S. C. 13 M. I. A. 85.
(e) Steele, L. C. 183, 384.
(/) MS. 1677. In the Mankars' Case, 2 Borr. E., at p. 95, the Sastris say
a father is bound to keep his eldest and youngest sons, but for the latter part
of the rule no authority is cited.
932 HINDU LAW. [BOOK III.
certain connexions and restrictions which coincide in a measure
with those that prevail amongst the higher castes (g). Through
the gradual attraction and reception of the Sudras within the
Brahminical religious system (h) the relation of a son to his father
has with many come to be regarded as involving a position and
duties analogous at least to those of the Brahman {i). The father
being thus concerned in the rites to be celebrated by his son (k)
the same rules which guard against the loss of these benefits
amongst the other classes ought equally or almost equally to
operate amongst Sudras [T). This may be thought to have been
secured for Bombay by the following decision on the point.
' ' There is not in the books any ground for drawing any distinction
between Sudras and other classes on the question of the legality of
the adoption of an eldest or only son " (m). The Sastris hold the
same view.
The adoption by a Sudra of an only son as a karta putra is
allowed by the Hindu Law (n) in Bengal. A similar view was
taken in Bombay by Sir M. Sausse, C.J. (o), which has since
been followed in Basava v. Lingangauda (p).
4. — Fitness for Adoption as Affected by Personal
Qualities — Sex.
There is no instance in Hindu Law of an adoption of a daughter
to inherit (q).
ig) Datt. Mim., sec. II., 80.
(h) Above, p. 827.
(i) See above, pp. 824, 825.
(k) See Steele, L. C. 225. The Jains do not celebrate the kriya ceremonies,
and amongst them adoption must be referred to a different basis. See Steele,
L. C. 416; above, pp. 825.
(l) See Steele, L. C. 413, 414.
(m) Per Sir M. Westropp, C.J., in Lakshmappa v. Ramava, 12 Bom,
H. C. K., at p. 390.
(n) Musst. Tikdey v. Lalla Hureelal, Suth. E. for 1864, p. 133. The term
karta putra is used as a synonym for kritrima putra.
(o) Mhalsahai v. Vithoha, 7 Bom. H. C. R. xxvi. App.
(p) I. L. E. 19 Bom. 428.
(q) Doe dem Hencower Bye et al. v. Hanscower Bye et al., East's Notes,
Case 75. Daughters cannot be adopted, 2 Str. H. L. 217. See above, p. 906,
C. 2. 2, as to a gttast-adoption by a dancer. Gangahai v. Anant, I. L. E.
13 Bom. 690.
S. IV.] FITNESS FOR ADOPTION. 933
In the Dattaka Mimamsa a section (VII.) is devoted to the
attempt to establish the adoption of daughters as an institution
of the Hindu Law. Great learning and ingenuity were expended
on this effort, but it has failed to gain acceptance for the
proposed doctrine (r). The Vyavahara Mayukha (s) rejects it,
and no Sastri has maintained it except as a possible variance
justified by caste custom. As when one said — " An adoption by
a woman of a daughter given by her mother may be recognized if
conformable to the caste rules " (t). The only custom allowing
it is that of the dissolute women whose imitations of adoption
have already been considered (v).
In Hencower's Case (iv) the pandit denied that the adoption of
a daughter was consistent with the Hindu Law. Yet in another
case the adoption of a niece in order that she might become the
mother of a putrika-putra was allowed (x). The adoption, it
was said, should be prior to marriage. This decision seems
never to have been followed, and like Nanda Panditta's doctrine
stands outside the living law {y). The validity of any such adoption
of a daughter must rest on a special custom.
The adoption of a sister, it was ruled, is illegal to the prejudice
of legal heirs (z).
A sister's daughter, or her son, cannot become a putrika-
putra (a). The institution is in fact no longer recognized (b),
though in the case quoted below it was only questioned by the
Judicial Committee whether the old rule of Hindu Law still exists,
namely, whether a daught-er may be specially appointed to raise
a son, and the son of such daughter be preferred to more distant
male relatives. If so, it was said, inasmuch as the rule breaks
in upon general rules of succession whenever an heir claims to
(r) See above, pp. 790, 833.
(s) Chap. IV., sec. V., para. 6.
(t) MS. 1681.
(v) Above, pp. 833, 834. Manjamma v. Sheshgirirao, I. L. K. 26 Bom. 491.
iw) Above, p. 932 (q).
(x) Nawah Rai v. Buggaumttee Koowur, 6 C. S. D. A. R. 5.
{y) 1 Macn. H. L. 102.
(z) Toolooviya Shetty v. Coraga Shellaty, M. S. D. A. R. 1848, p. 75. The
adoption of a sister is wholly illegal; she could not have been begotten by the
adoptive father without incest.
(a) Nursing Narain v. Bhutton Lall, Sp. No. C. W. E. 194.
(b) See above, pp. 800, 803, 806.
934 HINDU LAW. [BOOK III.
succeed by virtue of that rule, he must bring himself very clearly
within it (c).
4. 1. — Fitness for Adoption — Age.
The proper age of the son to be adopted is stated in widely
different ways by different castes {d). It is generally agreed that
the child ought to be young in order that he may become united
by affection to his adoptive parents (e), but this is rather a maxim
of prudence than of law. Some castes fix the limit of age at five
years; many at twenty-five; a few at fifty. The last indeed do
not recognize a legal limit of mere age, though, with the others.,
they require that the adopted eon should be younger than his
adoptive father (/).
The proper age for adoption is not uniform even for the same
district in every caste. A boy may generally be adopted from the
twelfth day after birth to his upanayana, which is eight years for
Brahmans, eleven years for Kshatriyas, twelve for Vaisyas.
Sudras may be adopted till the sixteenth year {g). This is,
however, simply the age of majority according to Hindu Law.
The statement must be taken as rather of what is recognized as
right than of what is obligatory.
The Hindu lawyers have written very elaborately on the subject
of the boy's age as connected with his Samskaras. These views are
considered below (h). In the North- West Provinces it was ruled,
conformably to the Dattaka Mimamsa, that adoption in the
Dattaka form ought to be within six years of age of the adoptee (i).
In Ganga v. Lekraj [k) it was held that a boy upon whom the
(c) Thakoor Jihnath Singh v. The Court of Wards, 23 C. W. K. 409. For
the law as now received, see above, pp. 800, 803, 807, 833; 1 Macn. H. L. 102.
(d) Steele, L. C. 383. See above, p. 831.
(e) See above, p. 833.
(/) Steele, L. C. 182.
(g) By. Sevagamy Nachiar v. Heraniah Gurhah, 1 Mad. S. D. A. E. 101.
See 1 Mor. Dig., p. 22, notes 8 and 9. The authorities quoted in 2 Macn. H. L.
176, 178, give five years as the age within which a boy ought to be adopted.
See Datt. Mim., sec. IV. 32, 33, 43, and the Datt. Chand., sec. II. 30, which
gives eight years of age as the usual limit amongst Brahmans.
(h) Sub-sec. 4. 7.
(i) Th. Oomrao Singh v. Th. Mahtah Koonwar, 2 Agra Eep., p. 103.
(fe) I. L. E. 9 All. 253
S. IV.] IDENTITY OR DIFFERENCE OF FAMILY OR GOTRA. 935
ceremony of the investiture with the sacred thread had not
actually been performed, and if he be a Sudra, then before his
marriage, may be adopted. In Bombay, as among the Jains (I),
on the other hand, a person of whatever age is eligible for
adoption (m). Even —
" A man of fifty and having children, may be adopted if he has
parents to give him away, but not otherwise " (n).
" A fatherless person of thirty years of age," it was said, " may
be adopted with the consent of his mother or elder brother " (o).
4. 2. — Juniority of Adopted Son to Adoptive Father.
It has been noticed that the son adopted must be junior to the
adoptive father. He need not, however, be junior to his adoptive
mother, when she, as a widow, adopts him (p).
4. 3. — Birth During Adoptive Father's Life.
The imitation of nature is not carried so far as to disqualify a
boy who, from the time of his birth, could not have been begotten
by a deceased adoptive father. When authority to adopt is given
to a widow, she may adopt a boy not born at her husband's
death (q).
4. 4. — Identity or Difference of Family or Gotra.
This subject has been considered in the preceding Section (r).
When members of the lower castes are concerned, the term
(l) Asharfi v. Rup, I. L. K. 30 All. 197.
(m) R. Vyankatrav v. Jayavantrav, 4 Bom. H. C. E. 191 A. C. J. ; Mhalsabai
V. Vithoha Khandappa, 7 Bom. H. C. K. App. xxvi.
(n) MS. 1755. Dharma v. Ramkrishna, I. L. K. 10 Bom. 80.
(o) MS. 1645. The competence of the elder brother to give in adoption is
denied. See above, p. 832, and below, sec. V.
(p) Gopal V. Vishnu, I. L. E. 23 Bom. 250; Ranganaya v. Alwar, I. L. E.
13 Mad. 214.
(g) East's Notes, Case 10; 2 Mor. Dig., p. 16.
(r) Above, p. 830 as. and sub-sec. 2. 2. of the present section. In the
Mankars' Case, 2 Borr., at p. 95, the Sastris say that a brother's or a daughter's
son may be adopted without any ceremonies but an oral gift and acceptance.
936 • HINDU LAW. [BOOK III.
" gotra " is used in a second intention, but though this part of the
subject is rather obscure it would probably be held that the same
degree of propinquity which makes mere age a matter of indif-
ference in the higher castes has the same effect amongst Sudras (s).
Whether the absence of a true gotraship enables a Sudra to adopt
indiscriminately any son younger than himself is a point that still
awaits determination. The opinions of the Sastris would probably
be opposed to such a licence except on the grounds of the Sudras
being below the operation of the religious family law, but no
obstacle or preference probably would be recognized by the Courts
as arising from consanguinity — none, that is, of an obligatory
character. In case of difference of gotra the adoptee should be
under five years of age ; in case of identity the age of the adoptee
is not restricted (ss).
Difference of gotra makes it important that the Samskaras
should not have been performed in the family of birth. Identity
of gotra makes this a matter of comparative indiifference (t).
Hence the following opinions :
" The person adopting may select whom he likes, without the
(s) See Datt. Mim. II. 5, 80.
(ss) Steele, L. C. 43. Extract from the Dharmasindhu—Who may or may
not he adopted (see 12 Bom. H. C. E. 373) :
Amongst Brahmans the son of a uterine brother, because preferable, is to be
taken first.
In his absence any Sagotra-Sapinda, or the son of a half-brother.
In the absence of such, an Asagotra-Sapinda, one produced in the family of
the maternal uncle or in that of the father's sister, &c.
In the absence of such, an Asapinda of the same gotra.
In the absence of such, even an Asapinda of a different gotra.
Of the Asagotra-Sapindas the sister's son and the daughter's son are pro-
hibited. . . . But by a Sudra even a sister's son and a daughter's son are
receivable. . . . The adopter having adopted should perform the ceremonies
commencing with the jatakarma or those commencing with the chudakarana
for the boy adopted. This is the preferable doctrine; but if a boy for whom
they can be so performed is not procurable, then from amongst the Sagotra-
sapindas, one whose upanayana ceremony has been performed, or even whose
marriage has taken place, may become an adopted son; but in the latter case,
only if he has not produced a son. So it seems to me. If adoption is to be
(=can be) made from amongst Asapinda- Sagotras only he whose upanayana
ceremony has been performed is to be (may be) taken. This appears also. As
to a Bhinna-gotra (one of a different gotra), he whose upanayana has not been
performed is alone to be received. Some authors, however, say that a Bhinna-
gotra whose upanayana has been performed may also be received.
(t) Above, p. 830.
S. IV.] BODILY QUALITIES. 937
assent of his relatives. If of a different gotra the boy should be
adopted before tonsure " (tt). On the other hand —
"A man of fifty, and having children, may be adopted if of
the gotra of the adoptive father. The latter should invite his
kinsmen, but their assent is not essential " (v).
A married sagotra may be adopted by a widow in the
Dekhan (vv). A gift made by the widow, prior to the adoption,
may be set aside by the adopt-ed son, in this as in other cases (w).
Some decisions recognize that limitation of age becomes
material if the adoptee is taken from a line of strangers (ww),
agreeing with the Sastri, who says —
" The adoption of a boy of eight years old, belonging to another
gotra, and who'se chaul and munj have been performed, is
invalid " (x), but this rigour cannot probably be maintained in the
present day (y).
4. 5. — Bodily Qualities.
The same qualities are required in an adopted son as in a son
who is to inherit. Thus leprosy of a virulent form (z) or congenital
blindness would disqualify, as making it impossible that the
sufferer should discharge the ceremonial obligations of a son to his
ancestors (a).
(tt) MS. 1683. Before upanayana, 2 Str. H. L. 104.
Colebrooke says : " See Mitaksh. on Inh., Chap. I., sec. XI. 13 : A difference
of opinion prevails in regard to adoption of adults, or persons for whom certain
ceremonies termed Samskara (marriage of Sudras, and tonsure of the higher
tribes) have been performed, the prevalent doctrine, in most parts of India,
being adverse to it. The objections are less forcible in the instance of a relation
of the male side than in the case of a stranger." 2 Str. H. L. 109.
(v) MS. 1634. See sub-sec. 4. 9.
(vv) Dharma Dagu v. Ramkrishna, I. L. E. 10 Bom. 80.
(w) Nathaji v. Hari, 8 Bom. H. C. E. 67 A. C. J., quoting— (1) Raja Vyanka-
trav Anandrav Nimhalkar v. Jayavantrav bin Malharrav Ranadive, 4 Bom.
H. C. E. A. C. J. 191; (2) Rakhmahai v. Radhahai, 5 Bom. H. C. E. A. C. J.
181; (3) Steele, pp. 44, 182; (4) Ranee Kishen v. Raj Oodwunt Singh et al.,
3 C. S. D. A. E. 228; (5) Bamundoss Mookerjea et al. v. Musst. Tarinee, 7
M. I. A. 169.
{ivw) Verapermal Pillay v. Narrain Pillay, 1 Str. E. 91.
(x) MS. 1629.
iy) See below, sub-sec. 4. 7.
(z) A cripple. Steele, L. C. 184. Mohunt Bhagioan Ramanuj Das v. Das,
I. L. E. 22 I. A. 94.
(a) See above, p. 539 ss.
hindu law. [book iii.
4. 6. — Mental Qualities.
Idiocy or insanity disqualifying for inheritance disqualifies for
adoption also (b), and for the same reason. Cases are wanting, as
in practice no one seeks to adopt a boy known to be disqualified.
When the boy has reached a stage of intelligence his own assent
must be obtained, which at an earlier stage may be replaced by
that of his parents (c). Sadrisam (d), properly understood, includes
a kindly feehng between the adoptive father and son, and a
disposition to obedience on the part of the latter not amenable to
strict legal rules (e).
4. 7. — Eeligious and Ceremonial Qualities.
Great differences of opinion are found amongst the authorities
as to the precise stage of progress in the Samskaras or family
sacra at which a boy becomes indissolubly united to his family of
birth (/). Some maintain that a severance may be made at any
stage such as to fit the subject for initiation in another family (g).
The Datt^ka Mimamsa seems to allow adoption after tonsure to
six years of age (h). The Dattaka Chandrika gives eight years of
age as the limit of age of a tonsured boy (?'). But both seem to
allow a dissolution of the filial bond even after initiation by a
repetition of the ceremony of initiation {k). The Vyavahara
Mayukha expressly allows the adoption of a married man (l),
though marriage is the limit set forth by other authorities as that
at which adoption even of a Sudra becomes impossible. It concurs
with the Dattaka Chandrika in doubting the genuineness of a
passage on which the limitation to five years of age is founded.
Sutherland, in his Synopsis, gives it as "the most general and
consistent rule that ' any person on whom the adopter may legally
(h) See above, p. 545 ss ; Steele, L. C. 184.
(c) Above, p. 833; Datt. Mini., sec. IV. 47.
(d) Above, p. 830.
(e) Steele, L. C. 182.
if) As to these, see the note Col. Dig., Book V., T. 134; Datt. Mini. IV. 23
and Manu II. 27—68.
(g) Above, p. 830 ss.
(h) Datt. Mini., sec. IV. 48—54.
(*) Datt. Chand., sec. II. 30.
(k) Datt. Chand., sec. II. 25—28; Datt. Mim., sec. IV. 51, 52.
(1) Vyav. May., Chap. IV., sec. V., para. 19.
S. IV.] RELIGIOUS AND CEREMONIAL QUALITIES. 939
perform the upanayana rite (m) is capable of being affiliated as a
dattaka son ' " (n). Macnaghten states very decidedly that no
adoption is possible after the upanayana has united a boy to his
family by a second birth (o).
The Nirnaya Sindhu, which is frequently followed by the Sastris,
calls that son anitya datta who before adoption has proceeded in
the Samskaras even so far as tonsure, but on this point the people
have rather taken the Samskarakaustubha for their guide, which
allows adoption after initiation (as the Vyavahara Mayukha allows
it after marriage (p).
The authorities being so obscure and inconsistent, the guidance
afforded by custom and by the Sastris becomes of peculiar
importance. Here again, however, there are considerable
differences, the caste rules being much more indulgent than the
learned Brahmans.
In the opinion of the Sastri " the adopted boy should be under
five years old, and his chuda (q) and other sacraments should be
performed assigning him the adoptive father's gotra " (?•). Some
of the Hindu authorities moreover and several decisions allow that
the effect of tonsure as barring adoption (s) may be undone by an
appropriate sacrifice even in the case of an only son. But on the
other hand however much the age of adoptee may be above five
years, his adoption will be valid if tonsure was not performed in
the natural family (t).
(m) Investiture with the sacred thread.
(n) Suth. Synops. Head II. ad fin. See Notes XI. and XII. to the same.
(o) 1 Macn. H. L. 73.
(p) See above, p. 808.
(q) Tonsure.
(r) MS. 1673. See above, p. 831.
(s) Sy. Joymony Dossee v. Sy. Sihosoondry Dossee, 1 Fult. 75, 28 March ^
1837 ; 1 Macn. H. L. 72 as. ; 1 Col. Dig.,, Book V., T. 182, 183, 273; Macn. Con.
H. L. 141, 146, 192, 205; 1 Str. H. L. 91; 2 Str. H. L. 87, where the Sastri
gives the upanayana or marriage as the limit beyond which a transfer to
another family becomes impossible. The caste laws do not in Bombay make
tonsure a limitation, though they, in some cases, give this effect to investiture
and marriage, Steele, L. C. 182. Even as to these the practice is lax. See
sub-sec. 4. 9.
(t) Veerapermal Pillay v. Narain Pillay, 1 Str. E. 91; Musst. Dullahh Dai
V. Manee Bihi, 5 C. S. D. A. E. 50; see Datt. Chand., sec. II. 20—33; Datt.
Mim., sec. IV. 22—54, and the notes to the preceding case. At 2 Str. H. L. 123
Ellis says that a boy adopted after tonsure becomes an anitya datta, whose son
belongs to the original family of his father. Colebrooke says the son belongs
to the family of his father's munj (investiture).
940 HINDU LAW. [book III.
Connexion in gotra makes a new initiation unimportant, and
thus the adoption of (1) a sagotra, (2) or of one descended directly
from a common male ancestor, (3) or of a near relative of adopter
on the paternal eide is good, though he is above five years in age
and tonsure has been performed in his natural family (v).
4. 8. — Investiture with the Sacred Thread.
A boy ought to be adopted before the performance of his
munj (w), or investiture with the sacred thread (x), according to the
law of some few castes. The others do not appear to make a point
of this. In many of course there is no upanayana ceremony; the
fullest initiation of which a youth is capable is obtained by
marriage, which in such castes takes the place to some extent of
the investiture (y). The restriction, however, must in either case
be understood as subsisting only as between strangers by family
and gotra. Amongst persons nearly connected there is no barrier
raised to adoption by final dedication to the same family or gentile
divinities (z).
(v) Tanjore Rajas Case, 1 Str. E. 126; Veerapermal Pillay v. Narrain Pillay,
1 Str. E. 91.
(w) See above, p. 830 ss. ; and 4. 8.
(x) Steele, L. C. 182, 383. For the proper ages of investiture see Datt.
Chand., sec. II. 31, note.
(y) Datt. Chand., sec. II. 29, 32; Col. Dig., Book V., T. 121 Comm.
(z) Extract from the Samskarakaustuhha (see 12 Bom. H. C. E. 374) : " One
may be adopted as a son v^hether the Samskaras commencing with tonsure
have taken place or not, and whether he has passed his fifth year or not. As to
the doctrine ' one whose Samskaras have not taken place is alone to be adopted,'
and ' who has not completed his fifth year is alone to be adopted,' founded upon
the Kalika Purana, that is wrong; because some say the passages are not
genuine, as they are not to be found in many copies of the Kalika Purana; and
others say that, even if they be genuine, the first three shlokas have reference
to Asagotra adoption; that, therefore, the last shloka also must be taken to have
reference to the same subject ; and that hence the rule does not apply to a
Sagotra adoption ; and they lay down that even a married (man) may be adopted.
But the truth is, that even in the case of Asagotras a general prohibition (or
non-recognition) of adoption after the Samskaras ending with the upanayana
have been performed is not possible upon the strength of the Purana passages,
because the authority of the Vedas to overrule contrary passages from the
Smritis (and Puranas) is well established by the rule of commentators to
determine the relative authority of texts, and the above passages of the Purana
are in opposition to the Bahvricha Brahmana. Thus it is indisputable that
S. IV.] INVESTITURE WITH THE SACRED THREAD. 941
It has indeed been said that there is not in strictness any
authority for the adoption of a boy whose munj or upanayana has
been performed (a). And also that —
" A boy (Brahman) cannot be adopted after his munj. The
form of adoption gone through confers no right of heirship on
him" (b).
In other cases the Sastris answered —
* ' A boy of a different gotra should not be married or have been
invested with the thread " (c).
" A boy adopted from another gotra should be taken before his
thread investiture and marriage. In the same gotra this is not
essential. In the former case the adopted acquires no rights of
inheritance " {d). A boy whose upanayana had been performed
would in Madras become but temporarily attached to the adoptive
family (e). In Bombay on the other hand the adoption by a
Brahman of a boy of a different gotra, whose munj had been
performed, was pronounced quite legal and effectual (/), and a
similar answer was grounded on an instance of such an adoption
said to be given in the Veda (g).
In Lakshmappa v. Ramava (It) it is laid down by Nanabhai
Haridas, J., consistently with the replies just quoted, that the
performance of the chudakarana (z) and the upanayana (k) in
the expression ' the son given and the rest ' includes ' the son made and the
rest.' Hence it follows that one on whom the Samskaras have been performed
in his natural family cannot become a self-given son either. But in the
Brahmana it is plainly stated that Shunashepa himself became the son of
Vishvamitra, and it is not to be supposed his upanayana had not been performed
in his natural family."
(a) P. Venkatesaiya v. M. Venkata Charlu et al., 3 Mad. H. C. E. 28.
(6) MS. 1751. See above, pp. 809, 810.
(c) MS. 1616. The question was as to son of father's brother's daughter's
son, who would be unfit for adoption on account of his mother's consanguinity
with the adoptive father according to the stricter rules as to the prohibited
degrees. See above, p. 837.
(d) MS. 1615.
(e) P. Venkatesaiya v. M. Venkata Charlu, 3 Mad. H. C. E. 28; 1 Str. H. L.
88, 89, 90. The anitya datta, whose son returns to the family of the father's
original gotra, is nowhere recognized by the Bombay Sastris, see above, p. 810.
(/) MS. 1719.
ig) MS. 1717. The reference is to the story of Sanahsepa (above, p. 808) on
which the Samskarakaustubha founds the doctrine here followed by the Sastri.
(h) 12 Bom. H. C. E., at p. 370.
(t) Tonsure,
(fc) Investiture.
942 HINDU LAW. [BOOK III.
the family of his birth does not disqualify even a Brahman for
adoption, as the effect of these ceremonies may be annulled.
In Bengal the adoption of a boy, eight years old, was held to
prevail over a daughter's claim to inheritance, the boy not having
been initiated in the natural father's family (I). But a contrary
rule would prevail where even the chuda had been performed.
The father of a boy after agreeing to give him in adoption
performed his tonsure under his own family name. Afterwards
the adoption was carried out and the homam performed. The
Pandit pronounced such an adoption invalid (w).
4. 9. — Fitness for Adoption — As Affected by Marriage.
Strange (n) gives marriage in the fourth class as a ceremony
after which adoption becomes impossible. This is confirmed by a
Madras Sastri (o), and the same appears to have been the opinion
of Jagannatha (p).
'' The Poona Sastris do not, however, recognize the necessity
that adoption should precede munj and marriage. The passage so
interpreting the law is said by the author of the Mayukha to be
an interpolation " (q). It is only the question of marriage that
could be raised in the majority of cases, as for Sudras there is no
other (initiatory) ceremony but marriage (r). Thus it was
answered :
"The son of a sister-in-law may be adopted by a Brahman.
But a married man of the same gotra only can be adopted " (s).
(I) Keerut Nuraen v. Musst. Bhobinsree, 1 C. S. D. A. R. 161 ; Sreenevassien
V. Sashyummal, M. S. D. A. Dec. 1859, p. 118; see 1 Str. H. L. 89, 90.
(m) 2 Macn. H. L. 181.
(n) 1 Str. H. L. 91.
(o) 2 Str. H. L. 87.
ip) Col. Dig., Book v., T. 183, 273 Comm. " The investiture and other cere-
monies . . . concern men of the twice-born classes : marriage is the only
sacrament for a man of the servile class." Col. Dig., Book "V., T. 121 Comm.
" A man of the servile class universally obtains marriage as his only sacrament
(Samskara) " Ibid., T. 122.
(g) Steele, L. C. 44. See above, p. 834.
(r) Sy. Joymony Dossee v. Sy. Sihosoondry Dossee, 1 Fult. 75 ; Ganga v.
Lekhraj, I. L. R. 9 All. 253.
(s) MSS. 1642, 1643.
S, IV.] FITNESS FOR ADOPTION, 943
This condition being satisfied the adoption of a married man is
admissible, though of the mature age of forty-five years, and
though he has a family, and his natural father prohibited
adoption (t).
The more recent decisions also say that the adoption of a
married boy is admissible, if he is a sagotra, though he has children,
amongst Sudras (u). And generally it may be said that by the law
of Bombay the adoption of a married Sudra is not invalid (w), as
in Lakshmappa v. Ramava (x) it is ruled that a married sagotra
may be adopted, sagotra meaning one in a relation of natural
propinquity.
Whether upanayana and marriage in the natural family are a
bar to adoption in another family among Brahmans, was a question
raised in the case referred to below (y). The Court refused to
consider it, holding the defendant bound by estoppel from disputing
the adoption as he had taken part^ in the ceremony. Elsewhere
than in the Bombay Presidency a married man does not seem to
be eligible for adoption, even amongst the lower castes. Thus in
(t) Sree Brijhhookunjee Maharaj v. Sree Gokolootsaojee Maharaj, 1 Borr.
181, 202 (2nd ed.) ; Lakshmappa v. Ramava et al, 12 Bom. H. C. E. 364 ; Vyav.
May., Chap. IV., sec. V. 19. The Sastris, in reply to a question put to them,
said : In the commencement of the Shastr it is written, A woman who has
lost her husband must obtain the sanction of her father previous to adopting a
son, and if she have no father then that of the caste. Again it is written,
that a woman who has reached years of discretion may of herself perform
religious duties. So she may adopt a son without permission, if none of the
caste are at the time to be found. It is also stated that a boy under five years
of age should be adopted in order that he may be brought up in the religious
tenets of his adoptive father. This relates to cases where no relationship sub-
sists, but when a relation is to be adopted, no obstacle exists on account of his
being of mature age, married, and having a family, provided he possess
common ability, and is beloved by the person who adopts him. However, if
the father of the person to be adopted be seriously averse to it, declaring that
his son shall not be given in adoption, the ceremony cannot be performed, since
the Shastr ordains that the free consent of the father is necessary to the
adoption of his son by another person. Dharma Dagu v. Ramkrishna, I. L. R,
10 Bom. 80.
(v) Nathaji v. Hari, 8 Bom. H. C. R. 67 A. C. J. ; Lakshmappa v. Ramava,
Bom. H. C. J. F. for 1875, p. 394; Vyav. May., Chap. IV., sec. V. 19.
(w) Lakshmappa v. Ramava, Bom. H. C. J. F. for 1876, p. 394; Mhalsahai
V. Vithoha Khandappa, 7 Bom. H. C. R. App. xxvi.
(x) 12 Bom. H. C. R., at pp. 372, 373; Dharma Dagu v. Ramkrishna, I. L. R.
10 Bom. 80.
(y) Sadashiv Moreshwar v. Hari Moreshwar, 11 Bom. H. C. R. 190. ,
944 HINDU LAW. [BOOK III.
Bengal the adoption of a Sudra, if otherwise eligible, is permissible
at any age prior to marriage {z), not after it.
In Madras too the adoption of a married boy is illegal (a). It
is illegal though the adopted is a Sudra (twenty-eight years
old) (h).
4. 10. — Fitness for Adoption — Place in Caste of the
Adopted Son.
According to the customary law of the Dekhan exclusion from
caste annuls an adoption (c). It must d fortiori prevent it, as no
benefit, or at least not the benefit chiefly regarded, can be had
from an out caste son.
5. — Fitness for Adoption — In Case of Anomalous Adoptions.
In the case of an adoption anomalous, as made by a mother
instead of a widow, if such an adoption can be allowed, no variance,
so far as is known, arises in the choice of the boy to be adopted.
The dvyamushyayana has been considered under the head of an
" Only son " and of " Eelation through the natural father " (d).
As the connexion of a dvyamushyayana with his own family is not
severed there is no fullness of the fihal relation between him and
his quasi-adoptiYe father; consequently the restrictions arising
from ideal physical relations between the adoptive parents and the
real ones do not apply to this case. In practice, however, the
adoption of a sister's or a daughter's son as a dvyamushyayana is
not known to occur. Where the adoption is allowed at all it is
allowed in the fullest sense (e).
We have above seen one instance (/) in which a reminiscence of
the ancient institution of the putrika putra seems to have been
(z) Ry. Nitradaye v. Bholanath Doss, Beng. S. D. A. K. 1853, p. 663; Canga
V. Lekhraj, I. L. E. 9 All. 253.
(a) Ry. Sevagamy Nachiar v. Heraniah Gurhah, 1 M. S. D. A. K. 101.
(5) Virakumara Servai v. Gopalu Servai, M. S. D. A. E. 1861, p. 147.
(c) Steele, L. C. 185; comp. above, pp. 843, 845.
(d) See pp. 808 ss., 913, 926.
(e) Above, p. 801.
(/) P. 919.
S. IV.] FITNESS FOR ADOPTION. 945'
preserved in practice though opposed to the law of to-day {g). In
such a case should the practice be authorized by caste custom,
there can be no room for choice of the son {h).
According to usage in Malabar, adoption is necessary among
the Chetty caste, to constitute the sons of daughters lawful heirs
on failure of eons (i).
6. — Fitness for Adoption — In Case of Qwast- Adoptions.
As to the kritrima form of adoption (k). No restriction seems
to be placed on the choice of the son {I) adopted by a man or a
woman. He must expressly consent to the adoption, and he
contracts no family relation with the cognates of the adoptive
father or mother (m). This is adoption with all the original
significance taken out of it, as in the last stages of the Eoman Law,
or rather perhaps an inartistic inclusion within the law of adoption
of an aboriginal local custom which could not be moulded exactly
to the Brahminical scheme (n).
In the natural adoptions in use amongst the tribes in Gujarath (o)
which from the orthodox Hindu standpoint must be regarded as
mere quasi-adoiptions, no restriction is known to exist on the choice
of the boy. Nor is it known that a girl is recognized as a fit subject
for adoption (p). The son of a near relative, male or female, is
ig) Above, pp. 793, 800.
(h) The putrika putra who in some lists (Yajnavalkya, Devala) stands second,
has no place in Manu's list. This some explain by saying that he stands on
exactly the same footing as an aurasa. By a laxity of expression the daughter
herself might be called putrika putra, and being appointed by her father might
perform his obsequies. Suth in 2 Str. H. L. 199. See above, pp. 793, 800,
801, 806.
(i) 1 Mad. S. D. A. E. 157.
(k) See above, p. 806.
(l) Ooman Dutt v. Kunhia Singh, 3 C. S. D. A. R. 144, is discredited by the
observations in Srimati Uma DeyVs Case, L. R. 6 I. A., at pp. 51, 52.
(w) 1 Macn. H. L. 75, 76. Hence the adoption of an only son generally
disallowed is lawful where the kritima adoption is recognized. Musst. Tikdey
V. Lalla Hurylal, C. W. R. Sp. No., p. 133.
(n) See above, pp. 150, 787, 795, note (d), and 801.
(o) Above, p. 828.
(p) A foster-daughter is mentioned above, p. 427 Q. 1 ; but she is not recognized
as a subject of any right of inheritance. The Gujarath castes who admit a
foster-son do not allow him to be replaced by a daughter. Gangahai v. Anant,
I. L. R. 13 Bom. 690.
H.L. 60
946 HINDU LAW. [BOOK III.
taken as the foster son (palak putra) wdth such doubtful rights as
have already been described.
The adoption of her own brother's daughter by a widow, governed
by the Mitakshara, can be regarded only as an adoption in the
popular not in the legal sense (q).
A man cannot be adopted into a family governed by Alya
Santana law (r).
" Adoption amongst Kalavantins is to be governed entirely by
the custom of the class. The Saetra gives no rules " (s). So far
as an adoption can be recognized at all it seems to be a matter of
the freest choice, as in the following case : —
A dancing woman brought up a son of her servant as her own.
On her death his daughter was put into her place to draw the
temple allowance. The Sastri declared the foster son heir by caste
custom, not his daughter (t).
SECTION v.— THE CAPACITY TO GIVE IN ADOPTION
AND THE CIRCUMSTANCES UNDER WHICH IT
MAY BE EXERCISED.
The Capacity Limited to the Parents.
It is plain that from the religious point of view the gift of a
son in adoption ought not to be made without the concurrence of
both his natural parents (u). Besides his first duty to his father,
the son owes ceremonial services to his mother and her father (w).
Even a step-mother shares the benefit of his sacrifices. In the
sphere of positive law the natural connexion between the mother
and her son has not been able to contend against the authority of
the husband and father. The sources of the Hindu Law give, in
some places, a rather uncertain sound, but the general result is
(g) Musst. Thakoor Dayhee v. Rai Balack Ram. 10 C. W. E. 3 P. C. See
above, p. 834.
(r) Munda Chetty v. Timmaju Hensu, 1 Mad. H. C. E. 381 note.
(*) The case was one of a sister's son's son adopted by a Kalavantin. MS.
1661. As to the palak kanya of a dancer, see above, pp. 828, 906,
(t) MS. 1707.
(v) Above, p. 817. Datt. Mim., sec. IV. 14, 15.
{w) The subordinate character of the Sraddhas celebrated for a mother and
her ancestors may be seen from the discussion. Datt. Chand. I. 24. See also
Datt. Mim. II. 72, note.
S. v.] CAPACITY TO GIVE IN ADOPTION. 947
that the mother has no real control over a proposed gift by her
husband, and can herself act alone in giving away a son during
her husband's life only on a real or assumed permission from him.
This will be evident from the following examination of the
authorities.
It will be seen, too, that the capacity of the widow to give in
adoption without an authority from her husband is more generally
recognized than her capacity to take in adoption, though even in
giving she has not an unlimited right. The principal text is in
Vasishtha, but with slight variances it is found in other Smritis.
" The father and mother may give, sell, or abandon their son.
But an only son is not to be given or received, as he must continue
the line of his ancestors. And a woman shall neither give nor
receive a son except with her husband's permission." —
Vasishtha XV. 2—5 (x).
The Dattaka Mimamsa says : ' ' The capacity to give consists
in having a plurality of sons, and the assent of the wife " and so
forth (y). But the most perfect gift, from the religious point of
view, must here have been intended, not one legally sufficient.
At another place in the same work (z) it is laid down that " the
husband singly even, and independent of his wife, is competent
to give a son, for in the two passages cited (a) the father Js
mentioned singly and unassociated with the mother." The reason
rests in part on a grammatical subtlety which it is hard to
appreciate, both father and mother being mentioned apparently
without any intention to assign a superiority to either (b) ; but
reliance is placed also on the greater part of a father in his son (c),
and on the generally subordinate place of the wife. Whatever
may be thought of the reasoning the conclusion is perfectly clear.
The Dattaka Mimamsa, however, allows the gift as it allows the
(x) Amongst the Saxons the right of a father to sell his children was
recognized, and it continued for some time after they had embraced Christianity.
— Kemble's Saxons in England, vol. I., p. 199.
The passages in the Smritis coupling gift with sale and limiting both to a
time of distress point back to a stage at which the doctrine of adoption had not
been developed to anything like the extent which now makes it so important.
See above, p. 792; Col. Dig., Book II., Chap. IV., T. 7.
(y) Sec. V. 14.
(z) Sec. IV. 13.
(a) I.e., Manu IX. 168; Yajnavalkya II. 130.
(h) Vasishtha does subordinate the mother as shown above.
(c) Above, p. 800.
948 HINDU LAW. [BOOK III.
acceptance of a son by a wife under a delegation from her husband
still living {d). When he is dead his authority or assent can no
longer be had, and an adoption is impossible, but the widow may
give away her son under the authority of the Smriti, which says :
" The father or the mother (both) may give " (e). While the
husband is alive she must not give without his assent; when he
is dead she may use her discretion in the exigencies which would
warrant a gift by the father.
The Dattaka Chandrika, after quoting Manu and Atri to the
effect that a man destitute of male offspring may adopt a son (/),
cites the familiar text of Vasishtha, " Let not a woman either
give or receive a son in adoption unless with the assent of her
husband " (g). Hence he gathem that with this assent a woman
may adopt. The case of adoption by a widow is not specifically
dealt with, but a woman may give in adoption " with her husband's
sanction if he be alive, or even without it if he be dead, or have
emigrated or entered a religious order " (h). The author construes
the passage of Yajnavalkya in its natural sense as giving authority
to father and mother alike (i), a construction which obviously
involves the competence of a widow to adopt also without special
authority for the purpose from her deceased husband.
The Mitakshara limits the mother's authority to give thus (k) :
" He who is given by his mother with her husband's consent,
while her husband is absent or after her husband's decease, or
who is given by his father, or by both, being of the same class with
the person to whom he is given, becomes his given son (dattaka).
So Manu declares. " Balambhat's commentary adds " incapable "
to "absent," and "without his assent" to "decease," con-
formably to a general tendency to favour females found in this
author. If the mother is present her assent is deemed as necessary
it would seem as the father's (i). Caste custom, however, though
it recognizes the mother's assent as desirable, does not regard it
as indispensable (m).
(d) Datt. Mim., sec. I. 16, 17, 18.
(e) Datt. Mim., sec. IV. 10, 11, 12.
(/) Sec. I. 3.
(flf) Sec. I. 7.
(h) Sec. I. 31.
(*) Sec. I. 32.
(fc) Mit., Chap. I., sec. XI., para. 9.
(l) See Colebrooke's Note, ad loc.
(m) Steele, L. C. 183.
S. v.] CAPACITY TO GIVE IN ADOPTION. 949
The Vyavahara Mayukha (n), referring to Manu, says that where
both parents are alive the gift ought to be made by both, if the
father be dead by the mother, if the mother be even absent by the
father. The ceremonial prescribed in the same work (o) pre-
supposes that the giver and receiver are both males. Vasishtha,
however, is quoted as authorizing a woman's gift or acceptance of
a son with the assent of her husband (p), and the necessity of
assent being limited by inference to the woman under coverture, it
is said that the widow's authority is unrestricted (q). The author
had the taking of a boy in adoption more immediately in view (r),
but his argument applies with at least equal force to giving.
The Viramitrodaya (s) says the mother may give with her
husband's assent, the father on his own authority. It relies, like
the other treatises, on Vasishtha, and maintains, contrary to the
Dattaka Mimamsa and other works, not only that the assent of a
living husband is unnecessary, but that no assent at all is necessary
for a widow adopting. As to the giving of a son the Viramitrodaya
is not explicit, and the reason given for allowing an adoption
without the husband's assent, that otherwise his spiritual interest
may suffer, does not apply to the gift of a son. When, however,
there is no danger to these the widow's authority to give seems
to be placed on the same level as her power to take : it is subject
only in case of her dependence to the approval of the near relatives.
Questions relating to the capacity to give in adoption have
naturally been far less frequent than those relating to the power
to adopt. By a gift in adoption no one in the family of the child
given loses anything, while the introduction of a child often takes
away a succession or an estate from him who holds or expects it.
The following responses show that a gift by the parents is essential
to adoption but without drawing any distinction amongst the
several cases of gift by the husband, the wife, and the widow.
" A boy cannot be given in adoption by any one except his
parents," and this power cannot be relegated to another person (t).
" The father or mother should give a boy in adoption " (v).
(n) Chap. IV., sec. V., para. 1.
(o) Para. 8, 37 ss.
(p) Para. 16.
iq) Para. 18.
(r) See para. 36.
(s) TransL, p. 115.
(t) MS. 1643. Lakshmibai v. Ramchandra, I. L. E. 22 Bom. 590.
(v) MS. 1675.
950 HINDU LAW. [BOOK III.
The decisions of the Ck)urts are to the same effect. No one
but the natural father or mother can give in adoption {w). The
grandfather, for instance (x), or the brother, has not the requisite
authority {y).
An orphan cannot be adopted because there are no parents to
make the requisite ceremonial gift (z). This principle excludes the
svyamdatta or self -given (a).
Capacity to Give in Adoption.
A. — Gift by the Father.
A. 1. — Father's Personal Competence.
A leper, according to a Bengal case, can give his son in
adoption {b) unless perhaps he has the disease in a severe and
disabling form. Leprosy, as it disqualifies for the performance of
religious acts (c), might, on that account, be held amongst the
higher castes to prevent the gift by a father afflicted with it. The
son in fact takes the place of a father thus disqualified in a Hindu
family. In Bombay the gift, if made at all, would probably be
made by the wife with the assent of relations {d).
A. 2. — Circumstances in which the Gift may be Made.
The Dattaka ^limamsa quotes Manu and Katyayana to prove
that a gift of a son may be made only in a season of distress {e).
(w) Lakshmappa v. Ramava, 12 Bom. H. C. B., at p. 376, and cases there
quoted.
(x) The Collector of Sural v. Dhirsingji Vaghhaji, 10 Bom. H. C. R. 235.
(y) Bashettiappa v. Shivalingappa, 10 Bom. H. C. R., at pp. 271, 272.
(z) Balvantrao v. Bayahai, 6 Bom. H. C. R. 83 0. C. J. ; Bashettiappa v.
Shivalingappa, 10 Bom. H. C. R. 268.
(a) So Veerapermal v. Narain Pillay, 2 Mad, H. C. R. 129; and Muttusaicmy
Naidu V. Lutchmeedevumma, M. S. D. A. R. Dec. 1852, p. 96.
(6) Anund Mohun v. Gobind Chunder, W. R. 1864, p. 173.
(c) See above, pp. 541, 544, 549; Viram. Transl. 256; Vyav. May., Chap. IV.,
sec. XI., para. 10; Daya Bhaga, Chap. IV., paras. 4, 18; Mit., Chap. II.,
sec. X., para. 10.
(d) See Steele, L. C. 182; Mit., Chap. I., sec. XI., para. 9, note.
(e) Sec. I. 7, The original passage of Manu (IX. 168) is quoted. I. L. R.
2 Bom., at p. 380; Katyayana at Col. Dig., Book II., Chap. IV., TT. 6, 7.
S. V. A.] CAPACITY TO GIVE IN ADOPTION. 951
In famine a son may be given or even sold, and the stress of
necessity justifies a widow in thus parting with her son (/). The
author gives a strained interpretation to the passage by making
it refer to the distress of him who has no son (g), but he cannot
but accept the natural sense (h). The Mitakshara says the
condition relates to the giver not to the taker (z). The Vyavahara
Mayukha (k) finds fault with this doctrine of Vijnanesvara and
contends that where the gift has not been justified by need, the
desired religious state has not been induced by the form of
adoption. This seems a rather cavilling objection ; it is, at any
rate, not one of any practical importance in the law. A gift made
by a competent parent is universally admitted to be effectual,
whether made under the pressure of want or not. Very few
adoptions are made from pauper families, and the gifts or sales
made during famine are not usually attended with any ceremonies
of adoption.
A Sastri says — " Parents in indigent circumstances may give a
son in adoption " (l), but no instance occurs of a gift pronounced
invalid through want of a poverty qualification.
A. 3. — Qualifications of the Power.
The free consent of the mother is said to be necessary if she is
living with her husband (m), but " desirable " would be the
proper word (w) save in a quite exceptional instance. The
restrictions arising from the condition of the boy as an only son or
an eldest son have been discussed in the previous section. The
only substantial qualification of the parents' power arises in the
case of a boy sufficiently old to have intelligence and a will of his
own. The assent of such a boy (or man) is necessary (o). Without
(/) Sec. IV. 12.
(g) Datt. Mim., sec. IV. 21.
(h) Datt. Mim., sec. I. 8; sec. IV. 18, 19.
(i) Chap. I., sec. XI., para. 10.
(fe) Chap. IV., sec. V., para. 2. See above, p. 928.
(I) MS. 1683, but the condition is a purely moral one, and one that is very
ightly regarded,
(m) Steele, L. C. 46.
in) Steele, L. C. 183, 386.
(o) Steele, L. C. 386.
952 HINDU LAW. [book III.
it the desired adaptation of character (p) is not in such a case to
be hoped for, and the son is not a mere chattel (q). His assent
may be safely inferred from his going through the ceremonies.
Relatives should be informed of an intended gift in adoption,
but their consent and the consent of the caste are desirable rather
than necessary. It is most nearly essential, where, owing to the
refusal of near relatives to give a son, it becomes necessary to have
recourse to distant connexions or to strangers (r).
The Poona castes seem to have thought, when questioned by
Mr. Steele, that the consent of the Government was necessary in
the case of Sarinjamdars and the like, not only to an adoption, but
to the particular choice made in each instance (s).
B. — Gift by the Mother.
B. 1. — As A Wife — By Express Permission of the Husband.
The Dattaka Kaustubha prohibits the giving equally with the
receiving of a son in adoption by a wife without her husband's
permission (t).
The express permission of her husband is necessary to validate
a gift in adoption by a wife of their son, though the Smriti
Chandrika is not to be construed as placing adoption and giving
in adoption by a wife on the same level (v).
B. 1. 2. — With Implied Assent of the Husband.
An express permission does not seem absolutely necessary. The
law was stated thus. A wife is not competent to give her son in
(p) Above, p. 830.
(q) See above, pp. 832—833; Vayv. May., Chap. IV., sec. I., para. 11;
Chap. IX., para. 2. The limitation of the right of disposal over children to the
parents originated no doubt in religious feeling, but it has probably been main-
tained in a measure at least by a sense of its being a necessary safeguard for the
children. Their interests were least likely to be sacrificed by their parents.
The removal of the child from the class of mere chattels is important with respect
to the illegality of giving in adoption subject to terms injurious to the child as a
son in the family of adoption. Such terms the Sastris have in some instances
pronounced void, as will be seen in the next section.
(r) Steele, L. C. 183.
is) Steele, L. C. 182.
it) Leaf 44, p. 1, 1. 6 (Bom. Shakd 1783).
(v) Narayen v. Nana, 7 Bom. H. C. R. 153, 162, 167, 172; LaksJunappa v.
Ramava, 12 Bom. H. C. R., at pp. 386, 397.
S. V. B.] CAPACITY TO GIVE IN ADOPTION. 963
adoption against the will of her husband, expressed or implied, or
gathered from the circumstances of the case (w).
It was held also that where the natural father permitted the
adoption of his boy under certain conditions, one of which was
imposed in consequence of a mistake as to the necessity of an
assent of Government to an adoption, non-fulfilment of the
condition rendered the adoption invalid (x).
When the father is insane and unable to give his consent, the
mother alone can give her son in adoption {y).
B. 2, — Gift by the Mother — As a Widow.
Jagannatha says, a gift by the mother alone is void; by the
father alone valid, though religiously defective (z). After the
death of one of the parents he regards the father's power as
<jomplete, but the mother's as dependent on authority given by
her husband (a), which will also validate a gift by a wife (b). He
is thus less liberal to the widow than the authorities quoted in the
beginning of this section. It would seem that the true view is
that of a joint interest in the son with a discretional power of acting
in the widow after her husband's death, except in cases plainly
injurious to his spiritual welfare or opposed to his known wishes.
The Nirnaya Sindhu (c), quoting from Vatsa and Vyasa, " The
son given by the father or the mother is a given son " (dattrima),
maintains that the restrictions on the mother's capacity, either to
give or to take, endure only while the father lives. The Smriti is
obviously a much more direct authority for freedom in giving than
in taking. " The Hindu Law clearly points to the mother as the
person who can give in adoption when the natural father is
dead " (d).
(w) Ranguhai v. Bhagirthihai, I. L. R. 2 Bom. 377; Lakshmappa v. Ramava,
12 Bom. li. C. R., at p. 397.
(x) I. L. R. 2 Bom., at p. 383.
(y) Hurosoondree Dossee v, Chundermoney Dossey, Sev. R. 938. See above,
sub-sec. A. 1.
{z) Col. Dig., Book V., T. 273, 274 Comm.
(a) Ibid., T. 275 Comm.
ib) Ibid.
(c) Bom. Edn. Shake 1784; Parichheda III. fol. 9, 1, 11. 3, 4.
(d) The Collector of Sural v. Dhirsingji Vaghbaji, 10 Bom. H. C. R., at p. 237.
964 HINDU LAW. [BOOK III.
The narrower view of the widow's capacity is illustrated by the
following two cases, both in Bengal, where generally the widow's
rights are most restricted.
Though the natural father consented to the adoption of his boy,
he not having lived to make the gift, the adoption, it was held,
could not be made (e). A mother indeed, it was said, cannot give
her only son in adoption even as a dvyamushyayana without
authority previously obtained from her deceased husband (/).
In a later Bengal case, however, it was said that the assent of
the father to the gift of a son might be presumed where no dissent
had been expressed, on the authority of the Datt. Chandrika (g),
though this did not extend to the taking of a son in adoption (h).
The principle of the widow's dependence has been brought to
bear in Madras as a means of controlling her right to give in
adoption. It was ruled that in the absence of consent from her
deceased husband, but with the consent of his father, brother, &c. ,
a mother may give her younger son in adoption (i).
In Bombay on the other hand a Sastri said that " when either
of the parents has given a son by pouring water on the hands the
gift is complete. The parents need not consult their relatives " (fc).
The gift in the particular case, however, had been made by the
father, and the Sastri did not probably contemplate the case of a
gift by the mother without the consent of the father. Where a
father has indicated that he does not wish his son to be given in
adoption, his widow has not authority to make the gift. In any
case in which he may probably have desired the retention of the
son the gift is invalid if made without an express authority from
him. Such authority is specially necessary where the gift will
leave the deceased father spiritually destitute (i).
Even amongst the Lingayats, though they are Sudras (w),
permission will not be presumed for a widow to give away an only
(e) Gourbullah v. Jugernatpersaud Mitter, Macn. Con. H, L. 217.
(/) Dehee Dial et al. v. Hurhor Stngh, 4 C. S. D. A. R. 320. His being the
only son was material.
(g) Sec. I., paras. 31, 32.
(h) Tarini Charan v. Saroda Sundari Dasi, 3 B. L. R. 145 A. C. J. ; S. C.
11 C. W. R. 468.
(i) Arnachellum Pillay v. Jyasamy Pillay, 1 Mad. S. D. A. R. 154; Col. Dig.,
Book v., TT. 273—275.
(fe) MS. 1677.
(I) Somasekliara Raja v, Suhhadramaji, I. L. R. 6 Bom. 524.
(m) Gopal V. Hanmant, I. L. R. 3 Bom. 373.
S. V. C] CAPACITY TO GIVE IN ADOPTION. 955
son or an eldest son in adoption (n). Where a mother, however,
in pursuance of the promise of her deceased husband, allowed her
son to be adopted, but did not herself (being ill) attend at the
adoption ceremonies to give him in adoption, but commissioned
her uncle to give the boy on her behalf, it was held that the
adoption was not on that account invalid (o).
In one case at Madras it was held that the consent of a brother,
as representing his deceased father, to the adoption of his brother,
was sufficient. The mother not attending, her consent was
presumed (p). But this ruling has not been approved. It is
inconsistent with several subsequent cases {q), and though not
entirely unsupported by Hindu authority (r) cannot be considered
good law.
The concurrence of an eldest son may properly be required to
the gift in adoption of a younger son by the widow (s). She is
legally and religiously dependent on him as head of the family,
and this authority may well be recognized where it can be exercised
only in restraint of a parting with a brother (t).
C. — Gift by Persons Incompetent.
C. 1. — By Adoptive Parents.
The texts do not w^arrant a gift by adoptive parents (v). The
prescribed ceremonies imply a gift by the boy's real father to
another taking him as his son (w).
(n) Lakshmappa v. Ramava, 12 Bom. H. C. E. 364; Somasekhara v. Subha-
drafnaji, I. L. E. 6 Bom. 524.
(o) Vijiarangam v. Lakshuman, 8 Bom. H. C. E. 0. C. J. 244; see 2 Str.
H. L. 94 as to the delegation of ceremonial functions.
(p) Veerapermal Pillay v. Narrain Pillay ; 1 Str. E. 91; see Macn. Cons.
H. L., p. 220; Steele, L. C. 48, note.
(q) See Bashettiappa's Case, 10 Bom. H. C. E., at p. 272. Below,
Biib-sec. C. 3.
(r) See above, p. 817.
(s) Steele, L. C. 48.
(t) "A gift made by a dependent person without the consent of the principal
owner (i.e. the 'head' or 'lord') is void." Col. Dig., Book V., T. 273
Comm.
(v) Above, p. 808; see 2 Str. H. L. 142. The Eoman Law specially guarded
against an adoptive father giving away his adopted son without good cause,
while it allowed the son injured by adoption to claim emancipation on reaching
his majority. Inst, Book I., T. XI. § 3, and Ortolan ad. loc.
(w) See 2 Str. H. L. 218; Datt. Chand. sec. II. 16; Datt. Mim. V. 13; Vyav.
May., Chap. IV., sec. V., para. 8.
956 HINDU LAW. [book III.
C. 2. — Persons Commissioned by the Parents.
The parents cannot delegate to any other person the authority
to give in adoption after their decease (x), nor can they do so
during their lifetime (y), excepting religious ceremonies to the
Brahmans (z).
C. 4.— Self-Gift.
''The
only son of one deceased ca
adoption
'■ (e).
C. 3. — By Grandfather, Brother, &c.
When the father is dead, and the mother living, the grandfather
cannot give away a boy in adoption (a).
The adoption of a boy, delivered by his bi^bther, but not by
either of the parents, and in which the adoptive mother did not
obtain her husband's consent, was not upheld by the Court (b).
One brother cannot give another in adoption on account of their
equality in position (c), more especially when the parents are
dead; and even though the father had previously consented to
such an adoption (d).
himself in
" The svyamdatta, or son self -given, is not to be recognized in
the Kaliyug" (/).
The kritrima or karta putra in the Maithila district is an
exception. But this mode of adoption, as already noticed, is not
allowed elsewhere.
(x) Bashettiappa v. Shivalingappa, 10 Bom. H. C. R. 268.
{y) Amrito Lai Dutt v. Surnomoye Dasi, L. R. 27 I. A. 128; Lakshmibai v.
Ramchandra, I. L. R. 22 Bom. 590.
(z) Ibid. ; Santap v. Rangap, I. L. R. 18 Mad. 397 ; Vedavalli v. Mangamma,
I. L. R. 27 Mad. 538, 539.
(a) Collector of Sural v. Dhirsungji Waghbaji, 10 Bom. H. C. R. 235.
(b) Musst. Tara Munee Dibea v. Deb Narain et ah, 3 C. S. D. A. R. 387;
Col. Dig., Book v., T. 275. Amongst some tribes in the Panjab a man may
give his brother in adoption, but not his only son. Amongst some he may not
give his eldest son. In some tribes he may give his only son to a brother or
near relative. See Tupper, Panj. Cust. Law, vol. II., p. 155.
(c) Muttusawmy Naidu v. Lutchmeedevamma, M. S. D. A. Dec. 1852, p. 96.
(d) Bashettiappa v. Shivlingappa, 10 Bom. H. C. R. 268.
(e) MS. 1746. Bashettiappa v. Shivalingappa, 10 Bom. H. C. R. 268; Laksh-
mappa v. Ramava, 12 Bom. H. C. R., at p. 390.
(/) MS. 1755. See above, p. 807.
S. VI. A.] ACT OF ADOPTION. 957
SECTION VI.— A.— THE ACT OF ADOPTION (g)— ITS
CHAEACTER AND ESSENTIALS.
Adoption amongst the Aryan Hindus, as it was amongst the
Greeks and Romans, is essentially a religious act (/t). Its purpose
and the ideas connected with it have been discussed in sec. II. It
follows almost necessarily from the view of the subject taken by
the Brahmans and by those classes who have inherited or adopted
Brahminical institutions that the sacrifices and invocations by
which a boy is transferred from association with one line of names
to another should be deemed indispensable to a true adoption (i).
And as the rights- of property are under the Brahminical system
indissolubly connected with spiritual union (k) the succession to
a member's place in the united family, or to the aggregate of rights
and duties centred in him alone as the sole representative of a
family, or as the source by separation of a new one {I), must needs
pass to him who has the sacra. To the begotten son the sacra pass
of right and of necessity (m) ; to the adopted son (n) they can pass
only by means of the sacred rites supposed to be efficacious in
bringing him under the same tutelary divinities as his adoptive
father, and imparting to him the father's ceremonial virtue. Such
ceremonies as the puti'eshti, and especially the datta-homa, are
not therefore to be looked on as mere excrescences (o). In theory
at least they are as important as the gift and acceptance, sijice
without them the reception is defective and the spiritual end
cannot be attained (p). Men of the mixed and lower castes, as they
became imbued with the Brahminical doctrines (q), conceived that
(gf) This section has once or twice been referred to under the title of the
' ' Method of Adoption , ' ' but on a review of the materials a more comprehensive
title seemed preferable.
(h) Above, pp. 845, 846; Smith's Diet. Ant. Tit. Adoptio. Cic. Pro. Domo Sua,
Chap. 13.
(t) See above, p. 832 ; Datt. Mini., sec. V. 56 ; Vyav. May., Chap. IV., sec. V.,
paras. 8, 37, 38.
(k) Manu IX. 126, 141, 142, 169.
il) Above, p. 73.
(m) Comp. pp. 63, 790, 880, 889, above; Datt. Mim. IV. 27 ss.
(n) Kali Komul Mozoomdar v. Uma Shunkur Moitra, L. K. 10 I. A. 138 ;
Rungama v. Atchama, 4 M. I. A. 1; Gopee Lall v. Musst. Sree Chundraolee
Buhoojee, lb. K. I. A. Supp. 131.
(o) Datt. Mim. V. 56.
(p) Datt. Mim. IV. 33, 36, 41.
(g) Above, pp. 827, 829.
958 HINDU LAW. [BOOK III.
for them too as for the pure twice-born, there might be a future
of beatitude secured by religious services performed in this world
by sons duly adopted (r), but this adoption, according to the same
set of ideas, involved a dedication to the manes of the adoptive
family, and the acquisition of spiritual fitness for its sacra. Thus
amongst most of the classes aspiring to spiritual and social rank
the religious ceremonies have grown to be regarded as at least
religiously essential (s). It is a mark of inferiority and remoteness
from Brahminical connexion that they should be superfluous or
simply optional in any caste.
But while this continued extension of the Brahminical cere-
monies has been favoured by caste ambition other causes have
worked in the contrary direction. The excessive multiplication of
ceremonies, natural to the sacerdotal class, made it impossible in
many cases through poverty and other causes, to fulfil them all (t),
and as some had to be dispensed with, the idea gained ground that
perhaps none were absolutely indispensable. The ancient and
probably indigenous system of adoption or fosterage (v) required
no more than a gift, where a capable giver existed, and a taking
by the ceremonial parent {w). On this the Brahminical ritual was
grafted to a varying extent. It could hardly be said with certainty
what rites would by caste custom in any particular instance be
deemed indispensable and which only desirable. Ignorance, haste,
and other causes led to irregularities in adopting which it was highly
desirable not to consider fatal to the affiliation. In some castes the
spiritual purpose was disregarded, while the influence of example
supported imitative ceremonies as a usual practice {x). Except
amongst the Brahmanas perhaps nothing is precisely fixed and
definite beyond a formal giving and receiving, and by a reflex action
the religious ceremonies have become less essential even amongst
the Brahmanas than in the earlier time when they were a more
peculiar people, more markedly distinct from the other castes.
The wish for a temporal heir and for an object of parental affection
has grown in importance as the keen appreciation of the spiritual
(r) See above, p. 826.
is) The state of things in Gujarath, where Brahminical influence of the
Maratha and Benares schools is of quite recent introduction, is an exception
that tends to prove the rule.
(t) Comp. Steele, L. C. 1C9.
(v) Above, pp. 823, 828; Norton, L. C, vol. I., p. 83.
(w) As amongst the Talabda Kolis and others, see above, p. 829.
(x) See above, p. 825.
S. VI. A.] ACT OF ADOPTION. 959
need has declined, so that in Madras at least it has become an
established doctrine that mere gift and acceptance will constitute
adoption even amongst Brahmanas (y). In Bombay no Sastri,
so far as can be discovered, has ever lent himself to this laxity of
practice. The religious ceremonies are rigorously insisted on, at
any rate for Brahmanas, though some indulgences in the actual
performance of them have been countenanced. The definition of
the essential ceremonies, however, is unsettled; the datta-homa
is always prescribed in addition to the formal giving and taking,
but beyond this it would be hard to say that any rite has been
sufficiently pronounced indispensable. Even in the case of
Brahmanas the Courts have shown a disposition to exact as little
as possible of mere ritual (z), and the customary ceremonies
enumerated by Steele (a) embrace all probably that would in any
case be held essential. In some of the cases (b) reference is made
to a supposed efficacy of the ceremony for civil, though not for
rehgious, purposes (c). Even Sir T. Strange seems to have had a
similar idea (d). It must be pronounced altogether foreign to the
Hindu Law (e). It is in virtue of his religious capacity that the
adopted takes the place of a bom son (/).
A. 1. — The Act of Adoption — Its Character and Essentials
AS TO THE Gift.
A gift (g), which is attended with retention of ownership, even
in part by the donor or subject to a condition precedent, is not by
the Hindu Law regarded as valid (h). The considerations which
apply to gifts in general are of more than usual force in the case of
(y) See also above, p. 825.
(z) See above, pp. 825, 826. Lakshmibai v. Ramchandra, I. L. K. 22 Bom.
590.
(a) See below, sub-sec. D. 1.
(h) See also above, p. 845.
(c) See V. Singamma v. Ramanuja Charlu, 4 M. H. C. K. 165, and the cases
there referred to.
(d) 1 Str. H. L. 96.
(e) See Rajendro N. Lahoree v. Saroda Soonduree Dahee, 15 C. W. R. 648;
L. R. 3 I. A., at p. 193.
(/) See above, p. 790.
ig) A gift in case of adoption, not a sale. See above, p. 806.
(h) See above, pp. 187, 415.
960 HINDU LAW. [BOOK III,
adoption. It is manifest that the intended purpose of adoption
cannot be realized if the natural father's rights in the adopted son
ar^ retained. If the status of the son is subject to contingencies
his position and that of the family he has joined are painfully
uncertain (i). The solemn ceremonies prescribed for a complete
adoption are intended to effect an immediate and complete transfer
of the boy from the spiritual sphere of the natural to that of the
adoptive family (k). As far as this point there is always a locus
pxnitentix, but when once the gift is consummated no revocation
is allowed {I) ; the capacity to give, which belonged to the natural
parents, is not so acquired by the adoptive parents (m) that they
can restore the son they have once taken.
It follows that a mere promise or engagement in fieri cannot
constitute an adoption. There must be a present unqualified gift
and acceptance, just as in the case of marriages, otherwise there
is no adoption. The Judicial Committee have insisted on the
necessity (n) of the actual transfer in several instances. Colebrooke
had previously said : " A simple agreement to make an adoption,
not carried into effect, will certainly not invalidate a subsequent
adoption made with the requisite forms " (o), and again, " Be the
mode of adoption what it might, this seemed indispensable ; that,
at whatever time it was contended to have taken place, it should
be shown by the claimant, that the operative expressions had been
used, indicative of the disposition to give, or to become adopted on
one side, and to adopt on the other. The Hindu Law has not
prescribed any particular expressions on the occasion ; nor does it
require that adoption should be by writing. But it has provided,
that the intent shall be expressed at the time ; and, if the
transaction be by writing, its whole genius and course teaches us
to look for it there " (p).
(i) See above, pp. 187, 831. Rights inherent in a status governed by the
family law could not, under the Eoman system, be affected by a contract. See
Dig. Lib. II. Tit. XIV. Fr. 34 (Poth. Pand. § 41).
(fe) See Datt. Mim. V. 34; Vyav. May., Chap. IV., sec. V., paras. 23, 29, 37,
38; and the formula 2 Str. H. L. 218.
{I) Steele, L. C. 184.
(m) Above, pp. 808, 821, 832. Under the Roman Law the patria potestas of
the adoptive father was subject to severe restrictions if he desired to use it by
getting rid of the adopted son. See Inst. Lib. I. Tit. XI. § 3.
{n) Above, p. 827.
(o) Colebrooke in 2 Str. H. L., p. 115.
(p) Colebrooke in 2 Str. H. L., pp. 143, 144.
S. VI. A.] ACT OF ADOPTION. 961
In The Collector of Surat v. Dhirsingji Vaghhaji (q) Sir M,
Westropp said : " It is clear Hindu Law that to constitute a valid
adoption there must be a gift and acceptance," the gift after the
father's death being competent only to the mother. It is only by
reason of the gift indeed that the filial relation to the natural father
is extinguished, or that the right of the son in the estate of the
giver ceases. A mere deed or declaration by the alleged adoptive
father that he has taken a boy as a foster son (palak putra) does
not produce the effect of adoption (r). Hence, when the ceremonies
of adoption had been performed, but no actual gift and acceptance
of the child had taken place, the Judicial Committee held that the
adoption was invalid (s).
The Judicial Committee have recognized the nullity as an
adoption of a gift and acceptance still in a measure in
fien, though the contract was made by a deed registered and
expressed in the present tense (t). It was not necessary for their
Lordships positively to decide whether there could be " an adoption
simply by deed," because in the particular case there was an
intention to complete the adoption by the ordinary ceremonies,
but a strong opinion on the subject is intimated. " They desire,
however, to say that they are far from wishing to give any
countenance to the notion that there can be such a giving and
taking as is necessary to satisfy the law, even in a case of Sudras
by mere deed without an actual delivery of the child by the father.
The delivery accompanied by the requisite declaration of transfer
of right makes a perfect gift forthwith. The adopted son must be
given, not sold (v), as the Krita adoption is now disallowed. Hence
an agreement by which the natural parents stipulated for an
annuity to themselves as a consideration for giving their son in
adoption was pronounced illegal (w). Similarly, it was held in
Bhaiya Rabidat Singh v. Maharani Itular Kunwar (x) that an
adoption otherwise valid was not prejudiced by an agreement
(q) 10 Bom. H. C. R. 235, referring to 1 Str. H. L. 95; Manu IX. 168;
Mit., Chap. I., sec. XI., para. 1.
(r) Nilmadhah Das v. Biswamhhar Das, 12 C. W. R. P. C. 29; S. C.
3 B. L. R. P. C. 27 ; S. C. 13 M. I. A. 85.
is) Bireswar Mookerji v. Ardha Chunder Roy Chowdhry, L. R. 19 I. A. 101.
(t) Mahashoya Shosinath Ghose et al. v. Srimati Krishna Soondari Dasi,
L. R. 7 I. A. 250.
iv) See further below, sub-sec. A. 6.
(w) Eshan Kishor Acharjee v. Harischandra Chowdhry, 13 B. L. R. 42 App.
(x) L. R. 16 I. A. 53.
H.L. 61
962 HINDU LAW. [BOOK III.
between the adoptive mother and the natural father, that she
should retain her husband's estate during her life, and that an
agreement of this kind had no effect upon the rights of the son, nor
did it render his adoption conditional. N.or will an agreement
between two brothers, one of whom had a son, not to adopt " in
case of failure of aurasa (self -begotten) male issue, bind the son
or prevent that son's adoption from conferring title by
inheritance " (y).
The gift must be expressly in adoption, as in the case of a wife
the gift must be as in marriage. According to the Hindu Law a
mere gift in either case without the attendant volition would be
the bestowal merely of a slave {z). The religious ceremonies are
important even where they are not regarded as essential, as in the
case of adoption by a widow (a) or of a brother's son (h) or of a
boy of the same gotra as the adoptive father (c), if only as marking
clearly the specific nature of the gift and acceptance.
The assent of the mother, either natural or adoptive, is not
absolutely necessary if her husband assents to the adoption.
Without her assent " the mother's claim is not annulled by the
donation " (d), but this claim is merely a moral one, making it
expedient but not necessary to obtain a release from her as from
the natural father of the son's filial duty (e). For jural purposes
a gift by the natural father suffices : and as an adoption is made
for the sake of the sonless man his acceptance of a son in adoption
suffices without the assent of his wife, as shown in the previous
section.
A. 2. — The Act of Adoption — Character and Essentials as
TO THE Acceptance.
" Acceptance in a certain form is the efficient cause of
iy) Sri Raja Rao Venkata Mahapati Surya Rao Bahadur v. Sri Raja
Gangadhar Rama Rao Bahadur, L. E. 13 I. A. 97.
(z) Col. Dig., Book V., T. 273; above, p. 836.
(a) Lakshmihai v. Ramchandra, I. L. E. 22 Bom. 690 ; Chiman Lai v. Ram-
chandra, I. L. E. 24 Bom. 473.
{h) Valuhai v. Govind Kassinath, I. L. E. 24 Bom. 218. Govindayyar v.
Dorasami, I. L. E. 11 Mad. 5; Ranganayakamma v, Alwar Setti, I. L. E.
17 Mad. 219; Atma Ram v. Madho Rao, I. L. E. 6 All. 276.
(c) Balgangadhar Tilak v. Tai Maharaj, L. E. 42 I. A. 135; S. C. I. L. E.
39 Bom. 441 P. C.
(d) Col. Dig., Book V., T. 273 Comm. ; see 2 Str. H. L. 131.
(e) Col. Dig., Book V., T. 275 Comm.
S. VI. A.] ACT OF ADOPTION. 963
filiation" (/). Hence there must be evidence of the taking as
well as of the giving (g).
The free consent of the giving and receiving parents is
indispensable (h). It is but rarely that a question on this point
can arise when the giver and receiver were adult males, but in the
case of women, and in that of minors, taking in adoption, should
the practice be recognized (i) there is obviously room for abuses
which ought to be guarded against. Fraud and cajolery practised
on a widow, in inducing her to adopt, will be relieved against (k),
and a Hindu female, acting unguided by disinterested advisers,
ought not to be prejudiced by her acquiescence in an adoption or
a will (i).
The gift and acceptance cannot be replaced by any other
intimation of desire or consent. " Education and nurture do not
constitute any relation entitling to inheritance " (m).
Although amongst Sudras no religious ceremony is necessary
except in case of marriage (n), yet an adoption, even amongst
Sudras, must be completed by corporeal gift and acceptance (o).
A Sudra took a boy of four years old, intending to adopt him, and
thenceforth supported him, but never actually adopted him, and
in course of time had three begotten sons. The Pandit said this
gave the boy no right as a son to share the estate, only a right
to be settled in marriage (p).
(/) Col. Dig., Book v., T. 275 Comm. The salutation already noticed,
p. 949, or the kissing of the boy's forehead, as it is described in Sutherland's
translation of the Datt. Chand., sec. II. 7, is a solemn indication of acceptance.
See, too, Vyav. May., Chap. IV., sec. V., para. 8.
(g) Laxman bin Santaji v. Malu bin Ganu, S. A. 550 of 1874.
(h) Steele, L. C. 385. Somasekhara Raja v. Subhadramaji, 1. L. K. 6 Bom.
524 ; Ranganayakamma v. Alicar Setti, I. L. E. 13 Mad. 214.
(i) See above, p. 814, note (w).
(k) Bayabai v. Bala Venkatesh, 7 Bom. H. C. E. App. I. See Somasekhara
Raja V. Subhadramaji, I. L. E. 6 Bom. 624; Ranganayakamma v. Alwar Setti,
supra.
(l) Tayammaul v. Sashachalla Naiker, 10 M. I. A 429.
(m) Colebrooke in 2 Str. H. L. 111.
(w) Sreemutty Joymoney Dossee v. Sreemutty Sibsoondaree Dossee, Fult.
B. 75, 76; 2 Str. H. L. 89.
(o) Mahashoya Shosinath Ghose v. Srimati Krishna Soondari Dasi, L. R.
7 I. A. 250.
(p) 2 Macn. H. L. 198 ; below, sec. VII.
964 HINDU LAW. [BOOK III.
A. 3. — The Act of Adoption — Assent of the Son.
Manu (q) prescribes that the son given shall be not only of the
same class but " affectionately disposed." This implies an assent
by the boy capable of discrimination (?') as a token of the requisite
disposition. Accordingly Jagannatha prescribes that " no son
must be given away against his will " (s).
A. 4. — The Act of Adoption — Contract of Adoption.
An agreement to adopt a child is not rendered void by the death
of one of the parties, husband and wife, who executed it. If the
husband at his death refers to the agreement, the wife is authorized
to adopt the child mentioned in the agreement (t).
A mere agreement to adopt, however, is not itself an adoption,
and will not invalidate a subsequent adoption made with the
requisite forms (v). Nor probably would such an agreement be
specifically enforced any more than a contract of betrothal (w).
Challa Papi Reddi v. Challa Koti Reddi (x) was a case in which
a man A, adopted by his father-in-law according to the lUatam
custom noticed elsewhere (y), associated another son-in-law B,
with himself. This was not a case of adoption, but the son of A
(g) IX. 168.
(r) See Datt. Mim., sec. TV. 47.
is) Col. Dig., Book V., T. 275 Comm. See above, pp. 832, 833. A child
under eight years is considered as (dependent as) one unborn. Thence to sixteen
he is called a bala or paganda (adolescent) ; after that he is of full age. Narada,
quoted in Viv. Chint., Transl., p. 35. Hence the Sastris rule in favour of the
widow's guardianship of a child under eight, at which age it is superseded by
that of the paternal relatives. ' After eight years of age sufficient intelligence for
religious acts is usually attributed to children, and the assent of a child so
advanced is requisite to his adoption. It ought in strictness to be proved in
contentious cases.
(t) Ry. Sevagamy Nachiar v. Heraniah Gurbah, 1 Mad. Sel. Dec. 101; see
also Bhala Nahana v. Parhhu Hari, I. L. K. 2 Bom. 67, quoted below under
sub-sec. A. 7.
(v) Colebrooke in 2 Str. H. L. 115, 135.
(w) See Umed Kika v. Nagindas Narotamdas, 7 Bom. H. C. K. 122 0. C. J.
In re Gunput Narain Singh, I. L. R. 1 Cal. 74; Spec. Relief Act I. of 1877,
sees. 12, 21, 22.
(x) 7 M. H. C. R. 25.
iy) Above, p. 398. For a similar institution, see Index " Gharjawahi," or
Steele, L. C. 358.
S. VI. A.] ACT OF ADOPTION MEANS OF PROOF. 965
was held bound by the engagement to B that he should share the
estate with A.
A. 5. — The Act of Adoption — Proof of the Transaction.
The fact of an adoption having been made or attempted may be
involved in varying degrees of doubt. The principles which govern
the reception and appreciation of the evidence adduced in contested
cases do not differ from those which operate in other departments
of the law ; but the special nature of the facts involved has given
rise to many decisions which bear on the question of the sufficiency
of particular acts and statements to constitute adoption. The
same cases might properly be placed in section VIII. on the
Litigation connected with Adoption; but it may be convenient to
consider them here in close connexion with the legal essentials
of gift, acceptance, and assent in the act of adoption {z).
The Courts have varied considerably in their views of the
completeness of the proof of an adoption, which may properly be
exacted before it is recognized in a contested case. No precise
rules can be gathered from the decisions, except these, that the
evidence must point to a real adoption, not to some connexion
substituted for it, and that the religious ceremonies, even when
not absolutely necessary, are in most castes so usual that the
non- performance of them detracts much from the proof of a
disputed adoption.
A. 5. 1. — Means of Proof.
In no case, it was laid down, should the rights of wives and
daughters be transferred to strangers or remote relations, unless
the fact of the adoption be proved by evidence free from suspicion
of fraud, and so consistent and probable as to give no occasion
for doubt of its truth (a).
The Court may exact but slight evidence of the performance of
ceremonies on proof of the husband's permission to a widow to
(z) It will be seen below that the conduct of those interested has, in several
instances, virtually been allowed to replace an act of adoption in constituting the
legal relation. Occasionally even where an adoption was primd facie impossible.
See p. 969 (c).
(a) Sootrugun Sutputty v. Sabitra Dye, 2 Knapp, p. 287 ; S. C. 6 C. W. E.
P. C. 109.
966 HINDU LAW. [BOOK III.
adopt. But from the mere observance of ritual forms no inference
can be made of the permission (h).
For the validity of an adoption it is not sufficient to prove that
the adoption was attempted bond fide, but satisfaction of the
requirements of the Hindu Law must be proved (c). " Even a
brother's eon does not become adopted by the mere performance of
other sacraments for him without the ceremonies of adoption " [d).
A person, immediately on the death of his wife from cholera, asked
his brother to give him his son in adoption. The brother assented,
but urged the necessity of ceremonies, which were reserved for
next day. The adopter also died from cholera the same day as the
wife, and the ceremonies remained unperformed. The boy went
through the funeral ceremonies of the deceased person. These
facts were held not to constitute a valid adoption by gift and
acceptance (e). Performance of funeral rites by an alleged adopted
son and acquiescence of the adopter's widow will not sustain the
validity of an adoption, unless it clearly appears that the act
itself was performed under circumstances rendering adoption
legal if).
Long possession under an adoption will avail nothing if the
adoption fails (g). " A man not regularly adopted, but who has
lived as a member of an undivided family for twenty-five years,
may be ejected from the joint property by the other members " (h).
Still less will mere residence and general recognition avail
according to some of the cases. Thus it was held that in the
absence of any formal adoption a sister's son residing in his uncle's
house from childhood, and recognized and treated as his son, does
not acquire the legal status of adopted son (i). And similarly that
in the absence of any agreement mere residence with the family
into which his aunt had married gives no right to any one to a
share of the family property (fc).
(h) 1 Hay, 311.
(c) Teelok Chundur Raee v. Gyan Chundur Raee, Beng. S. D. A. E. 1847,
p. 554.
(d) MS. 585.
(e) Kenchava v. Ningapa, S. A. No. 645 of 1866, 10 Bom. H. C. R. 265.
(/) Tayammaul v. Sashachalla Naiker, 10 M. I. A. 429.
ig) R. Haimun Chull Singh v. Koomer Gunsheam Singh, 2 Knapp. 203;
S. C. 5 C. W. E. P. C. 69. See above, p. 829 ss.
(h) MS. 123.
(i) Bhagvan Dullabh v. Kala Shankar, I. L. E. 1 Bom. 641.
(k) y. Venkata Reddi v. G. Soohha Reddi, M. S. D. A. Dec. 1858, p. 204.
S. VI. A.] PRESUMPTION IN FAVOUR OF ADOPTION. 967
A man having bought or otherwiee taken a boy and brought
him up as a foster-child, bequeathed part of his property to him.
The Sastri pronounced him disentitled to any more as against the
blood relations in the absence of a formal adoption {I).
As to the nature of the evidence required no merely technical
rules have been prescribed. Thus an adoption which took place
sixty years ago may be proved by oral evidence (m). Ocular
testimony may indeed be dispensed with. The adoption of a son
was held proved on strong circumstantial evidence, in the absence
of direct proof of the performance of the necessary ceremonies (n).
A. 5. 2. — Presumption in Favour of Adoption.
Though a true adoption is impossible without the essential
ceremonies (o), the Courts have in many instances given effect to
adoptions of which the direct proof was insufficient. In some of
the cases the proof entirely failed. The conduct of the members of
the adoptive family it was thought had in such cases created an
estoppel against their denying the adoption, or else there had been
so long an acquiescence in the adoptive status that the son could
not, without extreme hardship, be deprived of his sonship (p). To
make them consistent with the general principle such cases ought
to be referred, as generally they may be, consistently with the
known facts, to a presumption of adoption arising from the
circumstances. The position of an adopted son under such
circumstances resembles that of an heir in whose favour, after
long possession, every reasonable presumption will be made (q).
It depends upon the probabilities of each case under what
circumstances an adoption may be recognized in the absence of the
(l) MS. 122. See above, p. 929 ; and p. 356, Q. 19.
(m) Basappa v. Malan Gavda, S. A. 229 of 1867. It will be seen that no
writing is necessary to an adoption, though amongst some classes it is usual.
Steele, L. C. 184.
(n) Perkash Chunder Roy v. Dhunmonee Dassia, Beng. S. D. A. K. for 1853,
p. 96.
(o) I.e., at least the transfer, and in the case of a Brahmana, the homa,
according to nearly all opinions
(p) See Bhala Nahana v. Parbhu Hari, I. L. E, 2 Bom. 67.
(q) See Rajendronath Holdar's Case below, p. 969 (z). Where the question
is of the due performance of ceremonies, the presumption arises that all was
rightly done
968 HINDU LAW. [BOOK III.
original deed (r). There need not, however, be a deed : the Sastri
says — ' ' If one maintain another for a length of time, professing
to have adopted him, and in fact committing all his affairs to his
charge, having, upon his beginning to do so, invited and
entertained his relations, acquainted the magistrate, and drunk
manjanee, he cannot afterwards abandon the young man so
adopted in favour of another; nor is the adopted compellable to
renounce the connexion so formed. The relation of an adopted
needs no writing for its support " (s).
A presumption arises that an adoption was duly made from the
undisputed performance by the adopted in question of the kriya
and paksha ceremonies for the members of the family of
adoption (t). The decisions agree with this, as in the following
instances : in the case of a brother's son recognized for many years
and allowed by the family to perform the funeral rites of the
deceased a presumption was admitted in favour of the adoption (v).
So proof of the performance of ceremonies was dispensed with
where the adoption was recognized for a series of years and the
adoptee had possession of property (w), notwithstanding the
continued residence of the adoptee with his natural parents (x).
A gift by a duly authorized person in adoption is to be presumed
from an adoption which has been acquiesced in for thirty-three
years (y). But a shorter time will suffice. An adopted son, whose
adoption by a widow under a power from her husband with
publicity and formality, was acted on and recognized for twenty-
seven years by the family, died possessed of property. His
adoption was held good until it should be rebutted by evidence of
the strongest kind, after making due allowance for all imperfec-
tions of evidence on the side oi the defendant arising from lapse of
(r) Roopmonjooree v. Randall Sircar, 1 C. W E. 145.
is) 2 Str. H. L., p. 113.
it) Steele, L. C. 184. Kriya = performance, obsequies; Paksha = fortnightly,
periodical. See Steele, L. C. 27.
(o) Veerapermal Pillay v. Narrain Pillay, 1 Str. 91 ; Behari Lai Mullick v.
Indramani, 13 B. L. K. F. B. 401 ; S. C. 21 C. W. K. 285 ; Nittyanand Ghose
V. Kishen Dyal Ghose, 7 B. L. R. 1; S. C. 15 C. W. R. 300.
(w) Sabo Bewa v. Nahagun Haiti, 2 B. L. R. App. 51; S. C. 11 C. W. R.
380; Rajendro Nath Holdar v. Jogendro Nath, 14 M. I. A. 67 ; S. C. 15 C. W. R.
41 P. C.
(x) Venkangavda v. Jakangavda, Bom. H. C. R. P. J. 1875, p. 49.
(y) Anandrav v. Ganesh Yeshwantrav, S. A. 373 of 1863.
S. VI. A.] ESTOPPEL. 969
time ; for otherwise the adoptee would be deprived of his estate in
both families, natural and adoptive (z).
A plaintiff, suing for a declaration that an adoption is invalid,
is even bound, it was said, to prove its invalidity (a), where an
adoption took place long ago and has been acted on, and the
defendants are in possession by virtuei of the adoption (b).
The presumption has even been carried within the sphere of
the law, where this was opposed to the adoption. Thus the
adoption of a sister's son was upheld solely upon its having been
recognized for a long time, and the impossibility of cancelling it
without seriously affecting the rights of the adoptee (c).
A man having engaged that his daughter-in-law should adopt a
person, and the latter having performed the promisor's funeral
rites, the Sastri said that though no regular ceremony of adoption
had been celebrated, yet the adoption, if the adopted was a sapinda
of the deceased, might be considered valid {d). This opinion is
not easy to reconcile with others or with the recognized authorities.
What the Sastri meant probably was that a formal gift and
acceptance might be presumed, and that this in the case of a
sapinda would constitute an adoption.
A. 5. 3. — Estoppel.
The doctrine of presumption in favour of adoption (e) has been
carried further, or else considerations not strictly applicable perhaps
(z) Rajendro Nath Holdar v. Jogendro Nath, 14 M. I. A. 67 ; S. C. 15 C. W. R.
41 P. C. ; Sayamalal Dutt v. Saudamini Dasi, 5 B. L. R. 362; C. Herasutoollah
V. Brojo SoonduT Roy, 18 C. W. R. 77.
(a) Brojo Kishoree Dassee v. Sreenath Bose, 9 C. W. R. 463; S. C. 8 C. W. R.
241; Hur Dyal Nag v. Roy Krishto Bhoomick, 24 C. W. R. 107. See the cases
in note (z).
(b) Gooroo Prosunno Singh v. Nil Madhuh Singh, 21 C. W. R. 84.
(c) Gopalayyan v. Raghupatiayyan, 7 M. H. C. R. 250. The High Court,
however, rejected the custom specially found by the District Court, and found
" that communion had been created by the course of conduct of the plaintiff
and his family." This illustrates note (c) to sub-section A. 5. above, p. 1091.
The subsequent behaviour of the parties could not make that an adoption which
really was not one. See the case cited below A. 5. 4. As far as the plaintiff
was concerned the decision might have been placed on estoppel, but the cne
actually arrived at could be supported only on an absolute presumption against
the rule of law as conceived by the Court.
(d) MS. 1682. (e) See the cases under A. 5. 4.
970 HINDU LAW. [BOOK III.
to questions of status have been held to prevent the questioning
even of an apparently invalid adoption by one who had
countenanced it. In the case of an adoptive father, long
recognition by one of another as his adopted son was said by the
Sastri to make an attempted supersession by another adoption
illegal. Colebrooke placed his assent to this on the ground that
" the circumstances authorized the presumption " that an adoption
had "been actually made" (/), but the Sastri considered the
father bound as by estoppel.
An admission of the title of an adopted son was held strong
evidence to uphold an adoption of a sister's son by a Vaisya (g).
The admission has been made three times by the undivided brother
of the deceased adopter. It was apparently held that the
depositions were " decisive of the case " as " an admission of the
whole title of the respondent both in fact and in law."
Active participation in the plaintiff's adoption by defendant's
brother; acquiescence therein by many subsequent acts on the
part of the defendant ; letting the adoptive father die in the belief
that the adoption was valid; concurrence in the performance of
the funeral ceremonies by the plaintiff, were held to estop the
defendant from disputing an adoption (h). Nor need the case
be quite so strong. Though mere presence without raising an
objection or protest at the ceremony is not consent (i), still presence
at and acquiescence in an adoption and association with the
adopted son as such in legal proceedings estop a person, it was
held, from disputing the adoption {k). The Sadar Court of Madras
went even so far as to say that the legality of an adoption cannot
be challenged by one who has consented to it (?).
Where with full knowledge of the invalidity of the plaintiff's
father's adoption, as declared by the Court, the defendants had
admitted plaintiff to a share in the family estate and executed a
(/) 2 Str. H. L. 113.
(g) Ramalinga Pillai v. Sadasiva Pillai, 9 M. I. A. 506, 615 ; S. C. 1 C. W. R.
25 P. C. The effect of this must not be carried too far. It is limited by Gopee
LalVs Case, below.
(h) Sadashiv Moreshicar v. Hari Moreshwar, 11 Bom. H. C. R. 190.
(i) Vasdeo v. Ramchandra, I. L. R. 22 Bom. 551, F. B.
(k) Chintu v. Dhondu, 11 Bom. H. C. R. 192a.
il) Pillari Setti Samudrala Nayudu v. Rama LaJcshmana, M. S. D. A. R.
1860, p. 91.
S. VI. A.] RATIFICATION. 971
document to that effect, this was held binding on the
defendants (w).
Admissions, however, or acquiescence caused by mistake will not
create an estoppel, as when the Judicial Committee say : " It has
been argued on the part of the appellant that the defendant in
this case is estopped from setting up the true facts of the case, or
even asserting the law in her favour, inasmuch as she has
represented in former suits and in various ways, by letters and by
her actions, that Luchmimjee was the adopted son of Damoodurjee,
adopted by Damoodurjee 's widow, his mother. But it appears to
their Lordships that there is no estoppel in the case. There has
been no misrepresentation on the part of Luchmunjee, or the
defendant, on any matter of fact. She is alleged to have repre-
sented that Luchmunjee was adopted. The plaintiff's case
is that Luchmunjee was in fact adopted. So far as the fact is
concerned, there is no misrepresentation. It comes to no more
than this, that she has arrived at a conclusion that the adoption
which is admitted in fact was valid in law, a conclusion which in
their Lordships' judgment is erroneous; but that creates no
estoppel whatever between the parties " (n).
Thus too as to an alleged adoption by a dying man, it was said
that acquiescence in the adoption by a widow who afterwards
contested it, would not give it validity unless validity arose from
the act itself and the circumstances under which it was
performed (o).
In another case, however, of less authority, widows who after
their husband's death had completed the ceremony of adopting a
brother begun by him, were not allowed afterwards to question the
validity of the adoption (pi).
A. 5. 4. — Eatification.
A similar principle to that set forth in sub-section 5. 3, must, it
seems, be applied to the case of a ratification of adoption by
(m) Govind Balkrishna v. Mahadev Anant, Bom. H. C. P. J. 1872, No. 31;
P. J. 1873, No. 66.
(n) Gopee Lall v. Musst. Sree Chundraolee Buhooeej, 11 B. L. R. P. C. 391,
395; S. C. 19C. W. R. 12 C. R.
(o) Tayammaul v. Sashachalla Naiker, 10 M. I. A. 429.
(p) Above, pp. 865, 917. The adoption must have been palpably void, unless
"warranted by a particular custom.
^72 HINDU LAW. [book III.
widows or male sapindas {q). The adoption must originally have
been either valid or invalid, and in the latter case it could not really
be ratified as being essentially null (r). The assent of the sapindas,
when it is necessary at all, is necessary as a condition precedent
to the efficacy of the widow's act. If the new status is not acquired
the old one continues, with respect not only to the non-assenting
sapinda but with respect to others (s). In such a case the doctrine
of ratification is not properly applicable (t).
A. 5. 5. — Limitation.
The Limitation Act IX. of 1908, Sch. A, art. 118, prescribes six
years after an adoption becomes known to a plaintiff, who may be
a female (v) as the nearest reversioner (w), as the time within
which he must sue for a declaration that it was invalid or never
took place (x). The mere omission, however, by a particular
person to sue cannot have the effect of validating a void adoption.
The particular suit by the individual is barred, but otherwise the
law, it is apprehended, operates as before (?/.) Similar
considerations apply to art. 119, which prescribes for a suit for a
declaration of the validity of an adoption " six years from the
time when the rights of the adopted son as such are interfered
with." The status is not lost by forbearing to sue in a single
instance.
(q) See The Collector of Madura v. Ramalinga {Ramnad Case), 2 M. H. C. E.,
at p. 233.
(r) Comp. Rangamma v. Atchamma, 4 M. I. A., at p. 103. Vasdeo v. Ram-
Chandra, I. L. B. 22 Bom. 551, F. B.
(s) Bawani Sankara Pandit v. Ambabay Ammal, 1 Mad. H. C. E. 363.
it) See Rangubai v. Bhagirthibai, I. L. E. 2 Bom. 377 ; Bateman v. Davis,
3 Madd. 98; 2 W. & T. L. C. 806 (3rd ed.); Wiles v. Gresham, 2 Drewry 258;
S. C. 23 L. J. Ch. 667 ; Com. Dig. Confirmation (D 1) ; Shep. Touchst. 117, 311,
313, 314; Armory v. Delamirie, notes 1 Sm. L. C. 306 (5th ed.). " Eatification"
18 not a strictly correct term in relation to an act not done on behalf of those
whose concurrent assent is needed to give validity to an act by another on her
own behalf. Nor can ratification really change a state of facts, or touch the
rights of third parties. See Maynz, Dr., Eom. Lib. I. § 34, 86.
(v) Jumoona Dassya Chowdhrani v. Ramasoonderai Dasoya Chowdrani, L. E.
3 I. A. 72.
(w) Ramchandra v. Rangrav, I. L. E. 19 Bom. 614; Rani Anund v. Court of
Wards, L. E. 8 I. A. 22.
ix) Mohesh Narain Moonshi v. Taruck Nath Moitra, L. E. 20 I. A. 30.
(y) See below, sec. VIII.
S. VI. A.] TERMS ANNEXED TO ADOPTION. 975
A. 6. — Terms Annexed to Adoption.
It seems for the reasons already set forth that an adoption
subject to a condition, whether precedent or a condition subsequent
of defeasance, is impossible {z) : a contract cannot be made that
the vaHdity of an adoption, any more than of a marriage, shall be
contingent on a certain volition or event. Nor can it be postponed
in operation; its effect is immediate or not at all (a). These
rules spring from the nature of the institution (6), which equally
prevents other terms being appended, such as liberty to give back
the boy adopted or to adopt other sons which would involve the
parties most concerned in perilous uncertainties (c). The disposal
of the adoptive father's estate should, according to the older Hindu
Law, be governed by rules as little subject to individual caprice as
any within the system, but as separate property and freedom of
disposal have grown up, even pennitting the adoptive father to
{z) Above, p. 187. See, too, Di. Lib. 50, Tit. 17, Lex. 77.
(a) Ibid. The formula of gift imports this. Balgangadhar Tilak v. Tai
Maharaj, L. R. 42 I, A. 135; Bhaiya Rahidat Singh v. Maharani Indar Kunwar^
L. R. 16 I. A. 63.
(b) By the Roman Law, until a late period, mancipation was an essential part
of adoption, and mancipation was a solemn public act. Like some other
important jural acts, it could not be done subject to a condition or to a term
postponing its effect to a future day. Such qualifications were abhorrent to the
simplicity of primitive ideas, and too great a burden for the memory of the
witnesses by whose recollection, in case of future dispute, the transaction would
have to be proved. See Goudsm. Pand. p. 155; Maynz, Dr., Rom. III. 86, 87
(3rd ed.); Main, Anc. Law, p. 206 (3rd ed.). As society advanced the
magistrate became of more and the witnesses of less importance, but in
exercising a kind of voluntary jurisdiction he long preserved the old forms, and
he had to guard the interests of the community as these became more clearly
conceived. The considerations stated at p. 187 above then rose into manifest
importance. Disastrous results must sometimes arise from its being a condi-
tional matter, whether a certain man is, or is not, the husband of a certain
woman, or the legal father of a certain other man. So, too, as to the celebration
of the sacra by a person of doubtful competence. The family law consists for
the most part of defined duties and rights annexed to mutual relations under-
stood as absolute, and fixed once for all by birth, marriage, and other events of
an invariable character, whoever may be the subject of them.
Some authentication of adoptions would prevent many lawsuits in India.
As to the use of public authentications of transactions under the Roman and
the Teutonic systems, see Meyer, Inst. Jud. Tom. I., p. 306 ss. The records of
the Courts in England were originally the recollections of ofl&cial witnesses.
See Bigelow, Hist. Proc., pp. 318 ss.
(c) Comp. p. 84.
974 HINDU LAW. [BOOK III.
make a disposition by will (d), endeavours have been made to
retain the spiritual advantages of adoption while avoiding the
risks of handing over properties to the adopted sons. An agreement
between the adoptive and the natural parent of the adoptee to the
effect that the former will remain in possession of the property, or
retain a certain portion in a certain eventuality, has been held
binding upon the adoptee both by the Bombay (e) and Madras
High Courts (/). The Judicial Committee have, however, held
such an agreement to be invalid {g), though in an earlier case the
question was left undecided (h).
By adoption a widow of a Hindu severed from his brethrea
deprives herself of her interest in the estate (i). The adopted son
immediately displaces her as heir with a retroactive effect (k). In
order to prevent this a widow sometimes endeavours to annex
terms to the adoption by which she is secured a life interest in
the estate and the management of it. Effect has been given to
bargains of this kind both in Bombay (e) and Madras (/) ; but the
Privy Council have held them as invalid (g), and they may be
regarded probably as opposed to the strict Hindu Law of the
Sastras. It has been said that as a father may even sell his
son (l) much more may he part with him in adoption on such terms
as he thinks reasonaible. But the salet of a son (m) is allowed only
as a last resource in a time of distress (n). The Krita adoption by
purchase is distinctly forbidden (o), so that the a fortiori argument
is met by a prohibition in a nearer case. The adopted son ranks
as if bom at his adoptive father's death : his mother could not
appropriate to herself the estate of her child ; nor could she as his
guardian legally make a gain for herself at his cost out of a
transaction in which she was bound to do the best for her ward.
(d) Raja Venkata Surya Mahipati v. Court of Wards, L. E. 26 I. A. 83.
(e) Raoji Vinayakrav v. Laksmibai, I. L. E. 11 Bom. 381, 398.
(/) Visalakshi v. Sivaramisu, I. L. E. 27 Mad. 577, 585, F. B.
ig) Bhaiya Radibat Singh v. Indar Kunwar, L. E. 16 I. A. 53, 59.
(h) Ramasawmi v. Venkataramaiyan, L. E. 6 I. A. 196.
(t) Steele, L. C. 47, 48, 185, 186, 188.
(k) 2 Str. H. L. 127 ; below, sec. VII. Mondakini v. Adinath, I. L. E. 18 Cal.
69.
(I) Col. Dig., Book III., Chap. I., T. 33 Comm.
(w) 2 Str. H. L. 224. See above, pp. 806, 808.
(w) Yajnavalkya prohibits it wholly. See Col. Dig., Book II., Chap. IV.,
TT. 7, 16. See below.
(o) 2 Str. H. L. 175 (Colebrooke).
I
S. VI. A.] TERMS ANNEXED TO ADOPTION. 975
The adoption invests the adopted with the estate as a support for
the sacra ; the widow took it but provisionally in her lower capacity
for securing beatitude to her deceased husband (p), and this
connexion being established by the law of the family is superior
to a convention in which the adopted son himself takes no part.
Where indeed he is of full age and assents to injurious terms it
may be that he is bound to fulfil them, but it is as under a contract
which cannot prevent the estate from passing to him the moment
he becomes son to the deceased adoptive father. From the Hindu
point of view indeed it is questionable whether in consenting to be
adopted a man can lawfully accept terms which sever the estate,
even temporarily, from the obligatory sacra; but as on acquiring
the property he cannot be prohibited from dealing with it, the
previous bargaining can hardly in practice be prevented in the case
of an adult adopted son (q).
Even in the case of adoptions by males terms are sometimes
made which alter the rights and obligations properly incident to
the position of the adopted son as such. It is not possible perhaps
to draw a precise dividing line between the bargains and settle-
ments of this kind allowed and disallowed by the Hindu Law (r).
The principles already stated apply to them, and all are subject
to the control of the Court as representing the Sovereign according
to Hindu principles in protecting the weak and helpless (s).
In the following case a contract was made which only expressed
a right subsisting without it. A watandar's nephew adopted by
him agreed to pay his daughter money in lieu of ornaments. On
her death a balance remained due. Her daughter was pronounced
entitled to claim it as " Saudayak stridhana " of her mother (t).
The Sastri admits alternatively to the claim arising from family
connexion that the son may have passed the agreement in
(p) See above, pp. 87, 789, 881.
iq) Such a case as that of Tara Munee v. Deb Narayan Rai, 3 B. S. D. A. E.
387, could hardly now be upheld. The declaration of the adopted son that in
certain events his adoption should be null could not make it null. As to agnatic
rights the case is expressly provided against by the Roman Law, Dig. Lib. 2,
Tit. 14, Lex. 34.
(r) Under the Roman Law the terms had to be examined and approved by a
judicial officer of rank. If prejudiced the adopted son could get himself set free.
See Inst. Lib. I. Tit. XI. § 3; Di. Lib. I. Tit. VH. ff. 32, 33.
(s) Manu VHI. 27; Viv. Chint., Transl., p. 300; Col. Dig., Book V.,
T. 450 ss. ; 2 Str. H. L. 80.
it) MS. 1566.
976 HINDU LAW. [BOOK III.
consideration of the benefit he received by the adoption, but the
case is but a weak one. The Sastris seem generally to have thought
that limitations annexed to adoption by which the adopted son
would be deprived of the usual advantages of his position could
not be enforced. The decisions referred to above, p. 187, are on
the whole to the same effect. In a case wherein a Lingayat of full
age, about to be adopted by a widow, had agreed that she should
retain the management of the estate, the Sastri said that never-
theless the adopted son was entitled to the management, as the
widow by adopting had necessarily become dependent (v) except
as to her stridhana and her right to maintenance {w). If the
dependence of a widow having a son is regarded as a part of the.
public law (x) creating a relation not variable by the will of the
individuals immediately concerned {y), this answer is correct, and
such no doubt was the view of the Sastri. As a part of the family
law resting on sacred texts it may well be supported, and the legal
relations of the parties in other respects would, for the most part,
be defined by the law (z), not left to the exercise of free volition.
In another case a similar agreement had been made with the
adopting father and mother. On the death of the father the Sastri
said the adopted son succeeded to his estate, but that it would be
(morally) wrong for him to break his agreement and disobey his
mother, unless she was wasting the property through ill-will
towards the son (a). The Sastri, as in the case noted above, p. 187,
must have thought the condition so repugnant to the status taken
by adoption, that effect could not be given to it. In the case of
a kritrima adoption, however (b), the Judicial Committee appear
to have thought that such a condition might be annexed to the
adoption, and in Ramasawmi's Case (c) it was held that an agree-
ment by the real father in derogation of the rights as adopted son
of his son whom he was giving in adoption " was not void, but
was at the least capable of ratification when the son came of age. '*
(v) See Mit., Chap. II., sec. I., p. 25; Manu V. 147, 148.
(w) MS. 1743.
(x) See Col. Dig., Book IV., Chap I., T. 4, 5; Book II., Chap. IV., T. 55
Coram, ad fin; Book III., Chap. I., T. 52 Coram. ; 2 Str. H. L. 96.
(y) See In re Kahandas Narandas, I. L. E. 5 Bom., at p. 164.
(z) See above, p. 349, note (k).
(a) MS. 1728.
(h) Musst. Imrit Koonwar v. Roop Narain, Pr. Co. 15th March, 1879;
6 Cal. R. 76.
(c) Above, p. 187.
\
S. VI. A.] TERMS ANNEXED TO ADOPTION. 977
But what requires ratification admits of repudiation, so that if
ratification was necessary (which is not said) the son could not be
prejudiced by such a transaction as the one in question. In
Bhaiya Rabidat Singh v. Maharani Indar Kunwar (d) the Privy
Council have laid down that an agreement between the adoptive
and natural parent to the effect that the former should retain her
husband's estate during her life was of no effect, and that the
adoption otherwise valid was not rendered conditional in
consequence. The Sastris' opinions therefore appear to have been
set aside. Though an adopted son may resign his rights (e) it does
not seem consistent with the older principles of the Hindu Law, as
set forth in the Sastras, that a man, still less that a woman,
adopting a son should be at liberty at the same time to disinherit
him, and so sever the estate from the obligation to perform the
sacra and maintain the helpless members of the family. Nor can
the real father properly give his son on such terms. A father has
not ownership in his son as in a chattel (/). This is obviously
important with reference to the possibility of accepting conditions
injurious to the son, such as might arise through arrangements
of the kind recognized in Vinayak Naraijan Jog v. Govindrav
Chintaman Jog (g), Chitko Raghunath v. Janaki (h), Radhahai v.
Ganesh Tatya Gholap (i), Ravji Vinayakrav v. Laksmihai (k), and
in Visalakshi v. Sivaramien (i), however defensible in particular
cases these may be on other grounds. The Bombay High Court
has recently laid down that for such an agreement to be binding
upon the adopted son, it must be reasonable (m) and not confer
upon the widow powers to be exercised for the benefit of persons
other than herself.
It would seem from the considerations that have been stated
that the Sastris' view of this subject can hardly be contested on
the ground which they have chosen. But it is certain that it is
not allowed to govern the actual practice of the people ; amongst
id) L. K. 16 I. A. 63.
(e) See above, pp. 324, 341. Mahader Ganu v. Rayaji Sidu, I. L. R. 19
Bom. 239.
'(/) Vyav. May., Chap. IV., sec. I., paras. 11, 12, and sec. IX., para. 2.
ig) 6 Bom. H. C. R. 224.
(h) 11 Bom. H. C. R. 199.
(t) I. L. R. 3 Bom. 7.
(k) I. L. R. 11 Bom. 381, 398.
(l) I. L. R. 27 Mad. 577, 686, F. B.
(w) Vyasacharya v. Venkuhai, I. L. R. 37 Bom. 251.
H.L. 62
I
978 HINDU LAW. [BOOK III.
whom fair arrangements for the protection of the widow's interest,
during her life, are commonly made, and are always supported by
the authority of the caste (n). This is especially the case when
the property was newly acquired by the father : it is generally felt
as to such property that his wishes expressed or understood ought
to prevail, and that his widow has an interest which ought to be
protected (o). Sometimes the husband settles terms in an adoption
made by himself. Sometimes he annexes to his will or to his
permission to adopt specific terms as to the enjoyment of his sole
or separate property. In some cases he leaves the whole or part
of his property to relatives or to a charity, subject perhaps to a life
interest of his widow or some other person. In other cases he gives
no direction and dies intestate. Somewhat different questions
arise under these different circumstances, and different views have
been taken by the authorities.
In the case of an alleged adoption by a male of a nephew on
condition or with a reserve to the wife of the adopter of a life
enjoyment of the immovable property, and after her death of the
self -acquired property to the adopter's daughters, the Judicial
Committee said only that it would t*ake very strong evidence to
prove such an adoption, and held it had not been proved (p).
In Vinayak v. Govindrao {q) a direction was given to adopt a
nephew by a will which greatly limited the estate to be taken by
him as son. This was upheld on the ground that a sufficient
provision was made for the adopted son and that he, after his
adoption, had assented to the will and taken the benefit which jt
secured to him.
In a case, however, in which a will was thought effectual by the
Pandits, they added : " If the testator had really given his wife
verbal instructions to adopt a son in the event of her not bearing
male issue, her compliance with those instructions would of course
invalidate the will according to the Hindu Law, it being incom-
petent for the testator, who authorized the adoption of a son, to
alienate the whole of his estate (r), and thereby injure the means
of the maintenance of his would-be-heir " (s).
(n) The answers to Questions 3, p. 343, and 10, p. 352, above, were no doubt
influenced by a sense of this. (o) Comp. above, p. 606. note (v).
(p) Imrit Konwar v. Roop Narain Singh, 6 Gal. E. 76, P. C.
iq) 6 Bom. H. C. K. 224 A. C. J.
(r) See above, pp. 212, 601, 694; Vyav. May., Chap. IX., para. 2.
(s) Nagalutchmee Ummal v. Gopoo Nadaraja, 6 M. I. A. 320. See above,
pp. 209, 210, 214, 215.
S. VI. A.] TERMS ANNEXED TO ADOPTION. 979
In the case of an authority to adopt, unaccompanied by
limitations of the property, the Judicial Committee said that — " A
son adopted under a permission by a widow takes as such by
inheritance from his adoptive father, not by devise " {t). If he
takes without qualification as a son by inheritance it does not seem
consistent with that, that he should be subjected to other terms by
either adoptive parent than such as could be imposed on a son
by birth. This was the view taken by the Sastri in the case
referred to at p. 187. He pronounced the adopted son's right
unaffected by stipulations imposed on him by the widow in her
own interest.
The t^rms stated in the deed, where there is one, usually embody
the notions of the parties as to the legal effect of the adoption {v),
but this is by no means always the case. In Chitko v. Janaki {w}
a widow adopted without, as appears, any direction from her
husband. She contracted with the boy's father for his entire
exclusion from any proprietary right, and for his heirship to her
" subject " to these " conditions " or rather limitations. They
could hardly be pronounced reasonable, but on account of the
poverty of the boy's family they were upheld by the High Court.
If the boy, however, immediately on the change in his status by
adoption became heir to his adoptive father taking by inheritance
an unqualified estate, the agreement must, it would seem, have
been void. The widow's contract with the boy's father to the boy's
detriment would no more stand than such bargains of hers with
other persons.
When this ruling came under the observation of the Judicial
Committee, their Lordships pronounced it a matter not unattended
with difficulty (x). In the particular case they had at the time to
deal with, their Lordships found that the bargain was one that
could be and had been ratified by the adoptive son after he became
of age.
It was dissented from by the High Court at Madras (y). Sir C.
it) Bhoohun Moyees Case, 10 M. I. A., at p. 311.
iv) As in the case at Steele, L. C, p. 188.
(lo) 11 Bom. H. C. E. 199.
(x) Ramasawmi v. Venkataramaiyan, L. E. 6 1. A., at p. 208.
iy) In the judgment of the latter a compromise by the widow of claims set
up by the members of her husband's family was upheld, though made with a
view to adoption, and directly diminishing the estate. It was thought a fair
arrangement in itself, and one therefore which was not affected by the subsequent
adoption. (See above, p. 349.)
980 HINDU LAW. [book III.
Turner, C.J., there said : " We are of opinion that a child taken in
adoption cannot be bound by the assent of his natural father to
terms imposed as a condition of the adoption, and that, like other
agreements made on behalf of minors for other than necessary
purposes, it would lie with the minor, when he came of age, to
consent to or repudiate them (z). This we understand to be the
effect of the ruling of the Judicial Committee in Ramasawmi
Aiyar v. V encataramaiyan " (a). In a later decision (h) the Madras
High Court followed this view of the law, and laid down that no
agreement in respect of curtailing the rights of an adopted son
was valid. But in Visalakshi v. Sivaramien (c) a Full Bench of
the same High Court decided that an agreement of this kind was
valid provided it was fair and reasonable and " taken as part of
the contract for the adoption, was for the minor's benefit, as being
a condition on which alone the adoption would be made."
In Special Appeal No. 32 of 1871 {d) of the High Court
of Bombay it was thought, however, following Vinayak v.
Govindrao (e), to be at least possible that a widow adopting might
reserve to herself a material part of the estate. In Ravji
Vinayakrav v. Lakshmihai (/) the Bombay High Court approved
of the view of the law taken in earlier decisions, and held an
agreement of this nature to be valid. But in a subsequent
decision (g) it qualified its former view of the law by laying down
that an agreement to be valid must be reasonable and contain
provisions for the benefit of the widow only, and not empower her
to benefit others such as her daughter or brother.
The Judicial Committee, however, in Bhaiya Rahidat Singh v.
Maharani Indar Kunwar (h) have held that an agreement between
the two parents could not affect the rights of the son, which came
into existence only after the adoption, nor could a condition
attached to the adoption curtail his rights as the condition on
grounds of equity would be void and adoption good.
(z) See Bamundoss Mookerjea v. Musst. Tarinee, 7 M. I. A. 169; Nathajee
V. Han, 8 Bom. H. C. R. 67 A. C. J.
(a) L. R. 6 I. A. 196; Lakshmana Rau v. Lakshmi Ammal, I. L. R. 4 Mad.
160, 163.
(h) Jagannada v. Papamma, I. L. R. 16 Mad. 400.
(c) I. L. R. 27 Mad. 577, 585, F. B.
(d) Decided 12th June, 1871.
(e) Above, p. 977, note (/).
(/) I. L. R. 11 Bom. 381, 398.
ig) Vyasacharya v. Venkuhai, I. Tj. R. 37 Bom. 281.
(h) L. R. 16 I. A. 53.
S. VI. A.] TERMS ANNEXED TO ADOPTION. ^ 981
A distinction may no doubt be taken between the widow adopting
on a general authority or without authority, and one adopting under
terms defined by the deceased husband. At Calcutta the husband's
authority to limit at will the estate to be taken by his widow and
by the son she was to adopt has been fully recognized (i). A power
of adoption having been given by will to a wife, coupled with a
direction that the widow should, during her life, retain all testator's
property, ancestral as well as self-acquired, it was held that the
widow after adopting had a life interest with remainder to the
adopted son (k).
It does not seem possible to reconcile with this last decision
the opinion of the Sastris given in the earlier case (l). In
Bombay and the other provinces subject to the law of the
Mitakshara a father's power of devise as against living sons
is strictly limited (m), and the Sastris' opinion would substantially
express the law. If the son adopted by a widow under a general
power given by will takes even in Bengal otherwise than by
inheritance, there is a difficulty on the decisions in conceiving how
he can take at all. He may not have been born in the life of the
t-estator (n), he could certainly not be ascertained at the moment
of his death. No gift could be made to such a person nor
consequently could a bequest (o). If, however, the adopted son
takes by inheritance even the father's power of devise to his injury
is very restricted. In Bahoo Beer Pertah Sahee v. Maharajak
Rajender Pertah Sahee (p) the Judicial Committee say: " A man
(i) The terms must, it seems, have been accepted by the boy's real father;
otherwise a contention would have been raised on the ground of concealment of
the limitations by the widow.
(k) Bepin Behari Bundopadhya v. Brojo Nath Mookhopadhya, I. L. E. 8 Cal.
367, following Musst. Bhagbutti Daee v. Chowdhry Bholanath, I. L. E. 2 I. A.
266. The latter was not a case of adoption but of a settlement by a man on his
wife with the concurrence of his Kritrima son to whom was given a remainder on
the wife's death.
(l) In a case where the widow was given " absolute control " and possession
during her life, Sir E. Couch, C.J., refrained from saying whether she took
more than a power of management for the proposed son in adoption. Ram-
guttee Acharjee v. Kristo Soonduree Debia, 20 C. W. E. 472 C. E.
. (m) See above, pp. 206, 212, 214.
(n) Above, p. 1018.
(o) See the Tagore Case, L. E. S. I. A. 47, 67, 70; Ramguttee Acharjee v.
Knsto Soonduree Debia, 20 C. W. E. 472 C. E.
(p) 12 M. I. A., at p. 38. Hanmantapa v. Jivubai, I. L. E. 24 Bom, 647;
Lakshman Dada Naik v. Rafnchandra Dada Naik, L. E. 7 I. A. 131; S. C.
I. L. E. 5 Bom. 4H
982 , HINDU LAW. [BOOK III.
(with male descendants) may dispose by will of his separate and
self-acquired property . . . if movable, subject perhaps to the
restriction that he cannot wholly disinherit any one of such
descendants." The decision in Eao Balwant Singh v. Rani
Kishori {q) gives the father of a family governed by the Mitakshara
School full power of disposition over his self-acquired immovable
property also. It follows therefore that he could devise his self-
acquired immovables as well as movables. Adoption of a boy will
not restrict his power in this respect, as there is no implied contract
between the adoptive and the natural father that in consideration
of the gift of his son, the former will not make a will (r) which
would result in a loss to the adoptee.
The husband who authorizes a widow to adopt has not sons as
coparceners to interfere with his disposal of his property, and an
adoption by him after such a disposal could not affect it (s). But
the case just referred to shows that a gift or devise, made after
an adoption " could not prevail to any extent against the son " (t),
so that if the adoption by the widow is absolutely retroactive a will
in her favour being overcome by the son's survivorship cannot
secure her against the ordinary risks of adoption. A mritya patra
in a form not uncommon may be more effectual by giving her an
immediate interest in the property subject to the life-use of the
donor (v).
It is obviously somewhat inconsistent with the theory of a
complete continuity of ideal existence between the son adopted
by a widow and the predeceased adoptive father that the widow
should be able to stipulate for terms other than those of the son's
taking the whole estat-e with all its responsibilities (w). This
iq) L. R. 25 I. A. 64.
(r) Raja Venkata Surya Mahipati v. Court of Wards, L. R. 26 I. A. 83.
(s) Rambhat v. Lakshman, I. L. R. 5 Bom. 631, in which all the authorities
have been reviewed.
(t) Jud. Cit., at p. 637, and cases there referred to.
(v) See above, pp. 213, note (n), 216. This form of will avoids the distinction
drawn by the High Court of Madras between the gift and the will of an
unseparated Hindu, unless the gift itself be deemed incomplete until separate
jKJSsession of the property is given. See Col. Dig., Book II., Chap. IV., T. 56
Comm. ; above, pp. 634, 642, 652, note (to) ; Vitla Butten v. Yamenamma,
8 M. H. C. R. 6.
(to) See above, p. 165. It is shown there that a Hindu inheritance is by
native lawyers conceived as a universitas. The son takes it with all its burdens
even though he should resign a part to the adoptive mother.
S. VI. A.J TERMS ANNEXED TO ADOPTION. 983
theory has in many cases been applied so as to annul the inter-
mediate transactions of the widow (cc), but withal it is not a
thorough-going theory as is seen in the case of collateral succession
between the decease and the adoption (y). The recognition of
separate property, however, implies a right to dispose of it by the
husband, and wills being allowed, he can give or bequeath to his
widow as against an existing eon (z), much more it may be said
as against a son to be adopted (a). If dying sonless he makes no
will, his widow takes his separate estate by inheritance (b), and
even with respect to the immovable property, as she cannot be
forced to adopt at all, it seems a necessary concession that she
should be allowed to impose reasonable terms on an adoption for
her own security (c). By avoiding any disposition her deceased
husband has, under the law of Bombay, made her discretion
virtually his own. If he has given particular directions these must
probably be regarded as conditions, without compliance with
which an adoption cannot be made in so far as they are conditions
precedent {d), and which otherwise attend the adoption and govern
the rights of property arising under it, so far as is consistent with
the status induced by the adoption. The terms must, to satisfy
in any degree the Hindu Law, bo not grossly unfair to an infant
adopted, and must be subject to control and revision by the Civil
Court.
Though the Hindu Law, in its earlier form, strictly guarding the
family estate, imposed rigorous limitations on gifts to females {e)
it is inconsistent with its later development that they should not
be capable of taking as large an estate as a donor is capable of
(x) Above, pp. 93, 349; Rajkristo Roy v. Kishoree Mohun, 3 C. W. E. 14;
MS. 1716; 2 Str. H. L. 127.
iy) See, too, above, pp. 87, 89.
(z) Above, pp. 204, 205, 214. Rao Balwant Singh v. Rani Kishori, L. R,
26 I. A. 54.
(a) See above, p. 695. Raja Venkata Surya Mahipati v. Court of Wards,
L. R. 26 I. A. 83.
(b) Above, pp. 82, 87, 94; Mit., Chap. II., sec. I., p. 39.
(c) Analogy would suggest a possible reserve of one-half as on a partition
with her son she would take so much. See above, pp. 710, 714; Steele, L. C,
59. The Sastris' view of the proper extent of the mother's right was the same.
See pp. 348, 352.
id) Comp. Rangubai v. Bhagirthibai, I. L. B. 2 Bom. 377.
(e) Above, p. 262.
984 HINDU LAW. [BOOK III.
bestowing (/). The Mitakshara's doctrine of the widow's
inheritance (g) impHes that she may take the whole interest of
her husband (h). The restrictions on her dealing with the immov-
able property {i) show that when they were set forth the law had
not yet become fully unfolded. In the present age when individual
right has taken a much higher place than formerly, and a man
may dispose freely even of self -acquired laxids (k), it seems to
follow that he may bestow them by gift or devise on a wife or
widow as well as on any one else. As regards movables no doubt
can exist. The cases referred to above, pp. 205, 279, 299, show
that an interest much larger than the technical widow's estate (/)
may be given to a woman (m), and it has recently been expressly
ruled (n) that a man owning separate property may devise it
without limitation to his widows. The widows thus dowered might
adopt a son, and the question would then arise of whether by
doing so they must necessarily defeat their own estate by a
retrospective operation of the adoption so as to nullify the will.
The husband's gift to them of his separate property could not
be defeated by his son, whether bom or adopted, unless the son
were thus reduced to indigence (o), and as in the particular case
the wishes of the husband in favour of the widows have been
strongly signified, there seems to be no valid reason why they
should not be at liberty to make a reasonable reserve for themselves
in settling the terms of an adoption. The assumed will of the
deceased in favour of adoption may be supposed to have been thus
conditioned, and the act of adoption to connect itself by relation
with the purpose or permission that gives it effect (p).
(/) See above, pp. 205, 214, 279.
(gf) Mit., Chap. II., sec. I., para. 39.
(/i) Above, pp. 137, 281 ss.
(t) Above, p. 285 ss.
(k) Above, pp. 706, 739. Rao Balwant Singh v. Rani Kishori, L. E. 25 I. A.
64.
(l) Above, p. 87 ss.
(m) See above, p. 710.
(n) Mulchand v. Bai Mancha, Bom. H. C. P. J. 1883, p. 199; S. C. I. L. R.
7 Bom. 491, following Jeewun Punda v. Musst. Sona, N. W. P. H. C. R. 1869,
p. 6. The father could not disinherit his son by will under the Mitakshara law,
as in Prosunno Coomar Ghose v. Tarracknath Sirkar, 10 B. L. R. 267. See
above, pp. 204, 205, 214, 347, 551; 2 Str. H. L. 19, 21. Sri Braja Kishore v.
Sri Kundana Devi, L. R. 26 I. A. 66.
(o) Above, pp. 205, 212, 706.
(p) See Vin. Abrt. Tit. Relation
S. VI. A.] TERMS ANNEXED TO ADOPTION. 985
Where a deed of permission or a will has explicitly set forth the
terms on which the deceased wished an adoption to be made, there
should, it seems, be still less difficulty in giving effect to such
tenns wherever they are not wholly unreasonable. In the case of
simple inheritance by a widow a transaction by which she defeats
the rights of a gi^asf-posthumous son is certainly opposed to jural
theory (q). Nor could a widow even claim a partition with her son
so as to obtain an equal share (r). Her power to make stipulations
in adopting must apparently he placed on the general subordination
of merely pecuniary arrangements to the will of those concerned,
on her faculty to adopt or not at pleasure, and on the benefit to be
secured both to her husband and to the child of her choice (s) by
not making the hazards of adoption too great. As it rests thus on
considerations outside a strict construction of the law, it is
peculiarly a subject for the equitable jurisdiction of the Courts, the
exercise of which is most strongly called for where an infant is
transferred from his family of birth and deprived of the rights
annexed to his position there.
The older authorities, both textbooks and decisions, agree in a
great measure with the strictness of the Sastris' view. It is only
within a short time that a relaxation is to be noticed conformable
to what has long been the usage in Bombay, and now perhaps
going beyond it. As usual under such circumstances the decisions
have -not been quite consist-ent. In one case no such condition,
it was said, as that of an adoption of a boy remaining good so long
only as he was obedient to the mother was proved to have been
imposed upon an adoptee at adoption, and even if it were, such a
condition would be invalid (t). In some other cases, however,
such a stipulation has been held not invalid, as in the one noted
below, notwithstanding the widow's acknowledgment of the
adoption and Government's having acted upon it without
question (v). The Sastri, however, would not allow even the
adoptive son by contract to divest himself of his estate. An
(q) Unless it can be maintained that in making no disposition the husband
has intended her to be unlimited owner even of the immovable property. This
is not admitted by the Courts. See the section on Stridhana.
(r) See above, pp. 605, 749.
(s) An analogy may be found in the marriage settlements arranged for minors
by their parents under the English Law.
(t) Ram Surun Doss v. Musst. Pran Koer, N. W. P. R. for 1865, Pt. 1, 293.
<«?) Th. Oomrao Singh v. Th. Mahtah Koonwar, 4 N. W. P. R. 103a.
986 HINDU LAW. [BOOK HI.
adoptive mother (Koli) made an agreement with her son, whereby
he resigned to her the bulk of the family property. This was-
pronounced by the Sastri illegal, and the adopted son, if capable,
still entitled to inherit, subject to the duty of maintaining the
mother (w).
The early cases are equally restrictive of the widow's right.
The adoption, it was ruled, works retrospectively, notwithstanding
that the adopting widow had declared in the adoption deed that
the estate was to remain with her during her life (x). So also an
attempt by a widow in adopting to reserve the estate to herself
for life by a formal declaration in writing was pronounced of no
avail (y).
The relative position of the adoptive mother and son are thus
defined by Colebrooke : ' ' Presuming the property here spoken of
as the woman's to have been what devolved upon her by the death
of her husband, and not to have been her proper stridhana, it ceased
to be hers at the moment of a valid adoption made by her of a son
to her husband and herself ; in the same manner as property coming
into the hands of a pregnant widow, by the same means, cannot be
used by her as her own after the birth of a son. An adopted child
is in most respects precisely similar to a posthumous son. From
the moment of the adoption taking effect, the child became heir of
the widow's husband ; and the widow could have no other authority
but that of mother and guardian " (z). Treating the interval
before adoption like a time of gestation, the husband's bequests to
his widow might take effect according to principles generally
recognized. In the case of an intestacy recourse must be had it
seems to popular usage, as a ground for an indulgence to the
widow which is foreign to the system of the Sastras.
It was conformable to this, that in the case above where a widow
had reserved to herself a portion of property at the adoption, it
(w) MS. 15.
(x) Musst. Solukhna v. Ramdoolal Pande et al., 1 C. 8. D. A. K., p. 324,
In Radhahai v. Damodar Krishnarao, Bom. H. C. P. J. for 1878, p. 9, a docu-
ment of somewhat doubtful import was construed as not intended to deprive an
adopted son of his ordmary rights, and thus a discussion of Chitko v. Janaki,
11 Bom. H. C. R. 199, was avoided.
iy) Musst. Sahitra Daee v. Suturjhun Sutputtee, 2 C. S. D. A. R. 21.
(z) 2 Str. H. L., p. 127. Ramakrishna v. Tripurabai, I. L. R. 33 Bom. 88;
Lakshman v. Radhahai, I. L. R. 11 Bom. 690 ; Moto v. Balaji, I. L. R. 19 Bom,
809.
S. VI. A.] ASSENT AS VALUABLE CONSIDERATION. 987
was held she could sue in her own name in respect thereof (a).
In Sreeramabai v. Kristamma (b) the Madras High Court has,
however, held that an adopted son could not challenge alienation
by the adoptive mother made prior to the adoption during her
lifetime.
A. 7. — Assent as a Valuable Consideration.
However restricted the capacity may be for varying the rights
and duties annexed to the status of an adopted son, yet the boy
whom it is proposed to give in adoption, and who has reached
years of discretion, may exact terms from his family of birth.
His assent to be given in adoption was held to be a good
consideration for an agreement on the part of his brother, whose
interest was necessarily augmented by the transaction, to give
him a building site with a supply of water (c).
An engagement to adopt and to settle . property on the adopted,
in consequence of which parents actually give their son to the
keeping of the promisor, is a contract that can be specifically
enforced. It stands on a footing similar to that of a promise
serving as aai inducement to marriage, and the representative of
the promisor may be compelled to make good the promised
settlement. The estate which had passed to the promisor's widow
was held bound by the contract to which she gave full effect by
transferring the property thirty years after her husband's death (d).
Parents are not, however, allowed to annex to the gift of their
son conditions in their own favour, exposing him to the risk of the
adoption's being declared void (e). The Court refused to give
effect to such a contract. Nor are the sapindas, whose assent may
be needed, at liberty to seU their assent as if it were a right of
property. As to such a (supposed) case the Judicial Committee^
said — " The rights of an adopted son are not prejudiced by any
unauthorized alienation by the widow which precedes the adoption
(a) Oomahai v. Sakaimal, S. A. No. 32 of 1871.
(b) I. L. E. 26 Mad. 143.
(c) S. A. 433 of 1874; Ramkrishna Moreshwar v. Shivram Dinkar, Bom,
H. C. P. J. 1875, p. 169. The elder brother executed a conveyance to the
younger.
(d) Bhala Nahana v. Parbhu Hari, I. L. R. 2 Bom. 67.
(e) E. K. Acharjee Chowdhry v. Hurischandra Chowdhry, 13 B. L. R. 42, App,
Reference is made to sec. 23 of the Indian Contract Act (IX. of 1872); S. C.
21 C. W. R. 381, 382; see above, p. 806, note (r).
988 HINDU LAW. [BOOK III.
which she makes ; and though gifts improperly made to procure
assent might be powerful evidence to show no adoption needed,,
they do not in themselves go to the root of the legality of an
adoption " (/).
B. — The Act of Adoption — The Persons whose Participation
IS Eequired.
B. 1. — In Kegular Adoptions.
The person who must attend at an adoption are — (1) Parents
or survivors thereof on either side of the boy, or their representa-
tives (g). (2) The boy to be adopted. (3) The officiating priest or
priests in the castes in which sacrifices are thought indispensable.
Persons who may be invited to attend at adoption, but whose
non-attendance does not affect validity of adoption, are (1) Near
kinsmen (h). (2) Neighbouring gentry (i). (3) Visitors, standers
by, who may become witnesses of adoption (k).
B. 1. 1. — The Parents Giving.
The giver and receiver should both be present at the ceremony
of adoption. It should take place at the adopter's house or other
place free from impurity. The adopter must personally (not by
deputy) take the child " (l).
if) The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 M. I. A.
:397, 443. See above, pp. 881 as., 897.
ig) Sir F. Macn. Cons. H. L., p. 218; 2 Str. H. L., p. 87. Under the Eoman
Law " Is qui adoptat vindicat apud prsetorem filiura suum esse," Gaius I. § 134 :
after an "in jure cessio " by the natural father. The ancient form is given
in the Digest (Lib. I. Tit. VII.) the giver saying " Mancipo tibi hunc filium
qui meus est," and the receiver " Hunc ego hominem jure quiritium meum esse
aio, isque raihi emptus est hoc sere aeneaque libra." Poth. Pand. I. § VIII.
As usual in solemn ceremonies the personal presence of the parties was
necessary. They had to make the prescribed declaration before a magistrate
of high rank, whose authority then attached to the relation contracted in his
presence ; mere documents were ineffectual. Ibid. An irregular adoption could
be confirmed after a judicial enquiry and hearing those who opposed it. Ibid.,
§ XV.
(h) Alank Manjari v. Fakir Chand, 5 C. S. D. A. R. 356.
(t) Sootrugun Sutputty v. Sabitra Dye; 2 Knapp, 387; S. C. 5 C. W. R.
P. C. 109.
(k) Veerapermal Pillay v. Narrain Pillay, 1 Str. 91.
il) MS. 1675. See above, p. 832.
S. VI. B.] PARENTS TAKING. 989
The presence of the natural or the adoptive mother, it was
held, is not necessary if the fathers be present (m). In the
particular case the parties were Sudras, but the ceremonies imply
the presence only of the fathers (when living) as indispensable
even amongst the higher castes. In a case where proof of gift was
wanting, either by the father or the mother of the boy, it was
said that a deed executed only by the adoptive father was
insufficient to establish an adoption (n).
Similarly in a case before the Judicial Committee it was laid
down that the requisite declaration of gift can be made only by
the parent (o) giving the boy. An instrument signed by the
adopter and declaring the boy his representative is ineffectual for
this purpose (p), and is needless. A Sastri says : " When either of
the parents has given a son by pouring water on his hands the
gift is complete." (The gift was in the question stated as made
by the father) (q). " The parents need not consult their
relatives " (r).
The corporeal gift of the boy to be adopted may be made by
deputy as by a wife, or a brother of the real father, or as a deputy
of a widow by her uncle when the request and assent have passed
between the real and the adoptive parents (s).
B. 1. 2.— The Parents Taking.
" It is ordained that the husband and wife, among the Sudras,
should be present, and that they should cause a Brahmin to make
oblation to fire (t).
The wife, as we have seen above, Section III., may act under
a delegation from her husband in giving or receiving a son in
(m) Alvar Ammaul v. Ramasawmy Naiken, 2 M. S. D. A. R. 67.
(n) Lakshman v. Malu bin Ganu, Bom. H. C. P. J. 1875, p. 186. See above,
p. 817.
(o) See above, p. 808.
(p) Nilmadhah Das v. Bishumbhar Das, 3 B. L. R. 27 P. C. ; S. C.
13 M. I. A. 85.
iq) MS. 1677.
(r) Ibid.
(s) Vijiarangam v. Lakshuman, 8 Bom. H. C. R., at pp. 256-7; Rangubai v.
Bhagirthibai, I. L. R. 2 Bom. 377 ; Jamnabai v. Raychand, I. L. R. 7 Bom. 229.
(t) 2 Str. H. L., p. 130.
990 HINDU LAW. [BOOK III.
adoption. In such a case the husband's presence is of course
dispensed with.
(1) Adoption by a wife of a eon in her husband's lifetime;
(2) carrying on a suit on his behalf and in his name ; (3) non-denial
of adoption, were held to be strong circumstantial evidence in
favour of adoption with the husband's consent and with due
ceremonies performed [v).
When one of the adoptive parents has died the other may accept
in adoption subject to the conditions already considered. When
both are dead, as the acceptance by either parent is impossible,
the adoption itself becomes impossible also. The exceptions
admitted in a few cases have been considered under Sec. Ill (w).
The law was thus laid down by the High Court of Bombay :
" There must be not only a giving but an acceptance manifested
by some overt act to constitute an adoption according to Hindu
Law (x). Here there is said to have been a giving, but to whom?
to two dead persons, the only two who could have adopted a son
to the man " (y).
B. 1. 3. — Presence of the Child Given.
The indispensable manual delivery and acceptance of the boy
adopted (z) implies of necessity his presence at the ceremony.
This gives him the opportunity, should he object to the transaction,
of expressing his dissent (a).
B. 1. 4. — Presence of Relatives.
" The adopter's kinsmen ought to be convened, but their assent
is not necessary " (b).
(t>) Tincowrie Chatterjee v. Denonath Banerjee, W. E, 1864, p. 155.
(w) Above, p. 904.
(x) 1 Str. H. L. 95 ; Manu IX. 168.
iy) Per Westropp, C.J., Bhagvandas Tejmal v. Rajmal, 10 Bom. H. C. E. 265.
iz) Steele, L. C. 184.
(a) See above, A. 3.
(6) MSS. 1634, 1677. If the doctrine of the Samskarakaustuhha, as to the
widow's independence in adopting be taken as law for the Bombay Presidency,
the presence of relatives cannot be necessary, as an intimation of a superfluous
assent, see above, pp. 783, 795, 814; Vasishtha, XV. 6.
S, VI. C] CONDITIONS TO BE SATISFIED PUBLICITY. 991
B. 2.^ — In Cases of Anomalous Adoptions.
In the quasi-adoptions. in vogue amongst some castes of the
Bombay Presidency (c) no forms appear to be used beyond those
intimating assent on both sides, nor is the presence of relatives
thought requisite.
In a kritrima adoption the consent of the party adopted is
essential to the validity of it (d), and should be expressed
simultaneously with the acceptance of the adopter.
In Macnaghten, H. L. vol. II., pp. 196 ss, will be found several
cases of kritrima adoptions. Nothing seems essential but the
assent of the parties and of the boy's parents if they are alive (e).
C. — External Conditions to be Satisfied.
C. 1. — As TO Publicity.
To render adoption complete, there must be a public act of
giving and receiving, accompanied by a performance of some
religious ceremony (/).
" It is enjoined that notice of an adoption should be given to
the relations within the (the circle of the) Sagotr Sapindas and
to the Raja, though no provision appears in case of their
disapprobation, even in adoptions by widows " (g).
This injunction bears less on the choice amongst different boys
in the family than on the necessity or at least the desirableness of
the countenance of all members of the family to the celebration of
a religious ceremony. To show their assent and presence they
ought to sign the deed when there is one (h).
" Intimation of an intended adoption should be given to a
Mamlutdar or other Government officer of the vicinity, but the
want of it does not vitiate an adoption otherwise made with due
.ceremony " (z).
(c) Above, p. 829.
(d) Lachman Lall v. Mohun Lall, 16 C. W. E. 179.
(e) Suth. Syn. notes xv. xvi.
if) S. Siddesory Dossee v. Doorgachurn Sett, 1 Bourke, pp. 360, 361.
ig) Steele, L. C. 45. The object of the intimation to Government where its
interests are concerned may be seen from the cases above, pp. 902 — 3, and the
references at p. 888.
(h) Ibid. 183.
ii) MSS. 1677, 1711; Vasishtha, XV. 6.
992 HINDU LAW. [BOOK III,
Publicity is not absolutely essential to validity of adoption, yet
it is always sought for on such occasions (k).
C. 2.— As TO Time.
" A fortunate day ought to be selected for an adoption " (I).
" The Sankalpa or declaration of desire to adopt must be made
by day. The remaining ceremonies may then take place by night,
A formal acceptance is indispensable " (m).
C. 3. — As TO Place.
It is not a ground for setting aside an adoption that it was
celebrated not at the usual place of residence of the parties (n),
though this is the proper course (o).
Sacrifice need not take place in the house of the adopter (p), but
this is usual (q).
D. 1. — Ceremonies and Forms — Constitutive.
D. I. 1. — Amongst Brahmans.
{a) — In adopting Strangers; and generally.
(h). — In adopting Sagotras.
(c). — In adopting Adults and Boys already tonsured or initiated.
{d). — In adopting as a Dvyamushyayana.
D. I. 1 (a). — In Adopting Strangers; and Generally.
The ceremonies used in adoption are either regarded as essential
to constitute the relation; as sacrificial; as auspicious; as-
(k) R. Vassereddi Ramanandha Baulu \. R. V. Jugganadha Baulu, 1
M. S. D. A. Dec. 1832, p. 520; Ranee Munmoheenee v. Jairnarain Bose^
C. S. D. A. R. 1857, p. 244; Ranee Kishtomonee Debea v. Raja Anundnath Roy^
C. S. D. A. R. 1857, p. 1127.
il) MS. 1677.
(m) MS. 1679.
in) Bhaskar Buchajee v. Naroo Ragonath, Bom. Sel. Rep. 25.
(o) Datt. Chand., sec. II. 9.
(p) Th. Oomrao Singh v. Th. Mahtah Koonwar, 4 N. W. P. R., p. 103.
iq) Datt. Chand., sec. II. 16; Datt. Mim. V. 15, 21 ss.
S. VI. D.] CEREMONIES — ADOPTING STRANGERS. 993
authenticative ; or as simply indicating joy and generosity,
Amongst the Brahmanas, if the Sastris can be taken as faithful
expositors of their law, the first two classes blend into one. But
the second class is of very variable extent. At pp. 218 ss. of
Strange 's H. L. vol. II., there is a description of a very elaborate
ceremonial, but at p. 87 this is cut down to a few simple particulars,
the demand after invitations and notice to the authorities, the
gift, the datta homa, followed after adoption by the upanayana to
be celebrated by the adoptive father (r).
Jagannatha (s) insists on the datta homa and on the Sam-
skaras (t) from tonsure onwards being performed in the adoptive
family. The putreshti, he thinks, may be dispensed with, and
this is so in Bombay (v).
The Vyavahara Mayukha (w) prescribes an elaborate ceremonial
borrowed from Saunaka, the chief elements of which are those
already indicated. That it was not deemed imperative in every
particular may be gathered from Steele's Law of Caste, which
describes the requisite ceremonies as follows :
" Of the numerous ceremonies enjoined in the Sastras, the
following are the most essential : — 1. Prutigruhu, the formal giving
away of the boy by his parents, and acceptance by the other party,
with the form of Julasunkulp, or pouring water on the hands.
Presents may or may not be given. 2. Mustukawugrun (x), the
placing the boy in the adopter's lap, the latter breathing on his
head. 3. Hom, fire sacrifice performed by the Poorohit or others.
This is said to be unnecessary in adoptions of a brother's or
daughter's son, which are performed by Wakyudan, or verbal gift.
Soodrus cannot perform any ceremonies requiring muntrus from
the Veds (Vedokt-kurum). 4. Deepwama, the revolution of a
lamp, a ceremony at Pooja, or worship of the idol. 5. Brahmun
Bhojun, alms of food, &c. , to Brahmuns. Such of these ceremonies
as require the repetition of muntrus, as the Mustukwugrun, &c.,
cannot be performed by a female adopter, personally ; she must go
(r) See above, p. 838.
(s) Col. Dig., Book v., T. 276.
(t) A list of the Samskaras will be found in Col. Dig., Book V., TT. 133, 134,
notes, and in Steele, L. C. 23. As the latter says, they are now much neglected,
Steele, L. C. 159.
(v) Steele, L. C. 43.
(w) Chap. IV., sec. V., para. 8.
(x) See above, p. 847. The system of spelling followed by Steele differs from
the one now usually followed.
H.L. 63
994 HINDU LAW. [book III.
through the essential form of taking the adoptee in her lap, and
supply funds for Brahmun agency in other respects. After these
ceremonies (Widhan) have been fully performed, an adoption
cannot be annulled. Pending their performance, another may be
chosen . . . they are not essential where the adoptee is of the
same gotr. But in case of discovery that the boy, being of
another gotr, was not adopted with those ceremonies, or that he
was of another caste, the adoption is null, and the boy is to receive
maintenance as a Das or slave " (y).
As the Sastris insist frequently on the necessity of the rites
prescribed by the Sastra it may be pointed out that these are
very simple as compared with the elaborate ritual which has been
built up on them in later days. Thus Vasishtha says: "The
adopter shall assemble his kinsmen, announce his intention to
the ruler, make burnt offerings in the midst of his house, and
recite the Vyahritis " (z).
As caste or local custom may regulate the forms of marriage (a)
so it would seem may it regulate the forms of adoption. This
being so, the Courts have naturally never insisted on proof of
more than the minimum prescribed by the caste law (h). What
this is has been differently estimated, but that all difficulties are
to be got rid of by making mere gift and acceptance sufficient for
adoption in all cases is a proposition that cannot be stated wibh
confidence against the numerous opinions of the Sastris of the
Bombay Courts (c).
Amongst Brahmanas of different gotras there may be a retraction
until the datta homa has been celebrated, but not afterwards, and
the last rule holds for all cases in which the fire sacrifice takes
place (d). The homa is thus thought essential to a complete
adoption (e). The celebration has no constitutive effect at all,
iy) Steele, L. C. 45, 46.
(z) Vasishtha XV. 6. The Vyahritis are mystic syllables pronounced in
offering the fire oblations. See Biihler ad loc. The ritual described by Baud-
hayana is more elaborate. See Baudh. Parisishta, Pr. VII. Ad. 5; Datt. Mim.,
sec. V. 42; Datt. Chand., sec. II. 16.
(a) Gatha Ram Mistree v. Moohita Kochin et al., 14 B. L. E. 298; Rajkumar
Nohodip Chundro Deb Burmun v. Rajah Bir Chundra Manikya Bahadoor, 26
C. W. R. 404, 414. See above, p. 840.
ib) See above, pp. 824, 825.
(c) See above, pp. 825, 827.
(d) Steele, L. C. 184.
(e) Above, p. 835.
S. VI. D.] CEREMONIES ADOPTING STRANGERS. 995
until, in its essential parts, it is completed, and a person is at
liberty to change his mind and put aside a boy before full
performance of the ceremony (/). This rule is subject to the
qualification that in case of adoption of a brother's son {g) or of a
boy of the same gotra (h) the performance of the ceremony of the
datta homam is not essential for the validity of the adoption.
Jala Sunkalp, or the pouring of water on the hands, is deemed
an essential part of the ceremony of giving a son (i).
In all the castes in which the Sastra ceremonies are observed
at all the placing of the boy in the lap of the adopting parent is
considered indispensable (/c).
Steele says (l): " The Putreshta ceremony and the distinction
of nitya and anitya adoptions are not recognized in Poona " (m).
The rule formerly announced by the Sadar Court of Bengal
was that affiliation, established by sacrifice, is absolutely
essential (n), and with this the opinions of the Bombay Sastris
agree, at least as to the Brahmana caste. The following are
instances :
" The only adoption to be recognized in the Kali Yug, is the
* Datt Vidhan,' with assent of parents and due ceremonies " (o).
" No adoption is valid unless made with the prescribed
ceremonies. Mere declarations by the adoptive father will not
constitute an adoption valid. Nor will the performance of funeral
ceremonies for the adoptive father by the adopted son " (p).
Sacrifices are to be made according to the Sastras " (q).
** Adoption is a religious act. It requires a formal declaration of
desire to take a son (Sankalp) ; a formal gift (Dan) ; and a
ceremonious acceptance (pratigraha). There is an abbreviated
form called Gampaksha for one in extremis. But in no case can
the ceremonies be altogether dispensed with, even though the
adopted be of the adopter's family. The contrary view of the
(/) Daee v. Motee, 1 Borr. E. 75.
(g) Valuhai v. Govind Kashinath, I. L. E. 24 Bom. 218.
(h) Tilak v. Tat Maharaj, I. L. E. 39 Bom. 441, P. C.
(») Steele, L. C. 42.
(k) Steele, L. C. 184.
(I) Steele, L. C. 48.
(m) See below, E. 1.
(w) Alank Manjari v. Fakir Chand, 5 C. S. D. A. E. 356.
(o) MS. 1755.
(p) MS. 1683.
(q) MS. 1675.
996 HINDU LAW. [book III.
Dattaka Darpana is rejected " (r). "A person in extremis,"
another Sastri says, ' ' may ghorten the ceremony but cannot omit
it (s), though the Dattaka Darpana says he may in adopting a
relative " (t).
Steele speaks of adoption as ' ' sometimes made by nuncupative
will at the point of death " in the Southern Maratha Country (v).
But by this he evidently means merely an adoption in extremis
with ceremonies abridged to suit the exigency (w).
" No adoption," a Sastri again declares, " is valid without the
prescribed ceremonies. The dispensation from ceremonies in the
Samskar Ganpatti, supposing the passage genuine, extends only
to daughters' and brothers' sons " {x), and another insists that,
" Whatever is done contrary to the rules of the Sastras must be
considered as null and void " (y). But the objections in the case
went to the eligibility of the adopted and the adopting widow's
capacity.
The age of the parties has not been thought to make any
difference. An adoption of a married man was said to require
for its validity the performance of the due ceremonies {z).
A man in extremis adopted a son without ceremonies. The
adopted performed his funeral ceremonies. The Sastri said, this,
according to the Mayukha, constituted the son only a priti-putra,
not an heir (a-).
(r) MS. 1714.
{s) MS. 1674.
(t) MS. 1675.
{v) Steele, L. C. 185.
{w) The reader will be reminded of the adoption by testament of Octavius by
CaBsar, which, however, was, except in form, only the nomination of an heir,
and had to be ratified by a vote of the people. This was not really an adoption ;
it was merely a mode of designating a successor, and preserving one's name
which became common. (Maynz, Dr. E. § 328.) In a true adoption under the
Hindu Law the adopted, except a dvyamushyayana, takes a new name and a
patronymic from his adoptive father (see Gangava v. Rangangavda, Bom.
H. C. P. J. 1881, p. 248), the palak-putra does not, nor does the kritrima son.
An adoption by will is not allowed, only a permission to adopt, see above, sub-
sec. III. B. 3.
(x) MS. 1686.
iy) MS. 1672.
(z) MS. 1643. This is the strongest mark of abandonment of right, and is
properly used in such a solemn transaction as a gift or sale of land. See Mit.,
Chap. I., sec. I., para. 32; 2 Str. H. L. 426.
(a) MS. 1680. Sayammaul v. Sashachaka Naiker, 10 M. I. A. 429.
S. VI. D.] CEREMONIES — ADOPTING STRANGERS. 997
In the case of a son adopted without any rites by a man since
deceased, the Sastri, not allowing that he was already sufficiently-
adopted, insisted on the elder widow's competence to adopt him
as the person indicated by her husband, notwithstanding the
opposition of the junior widow (h).
The required ceremonies need not be performed by the person
adopting. They can be completed after his death so as to constitute
a valid adoption (c). The Sastri answered that " a ceremony
begun by a dying person, who does not live to complete it, may
be completed by his widow" (d). She may, however, begin de
novo, if she likes.
Jagannatha discusses at some length (e) the question of whether
besides a gift the prescribed religious ceremonies and samskaras
performed in the adoptive family are essential to adoption. His
conclusion is that " should the oblation to fire be partly omitted
through inability to complete it, the adoption is sometimes good."'
As to the samskaras he accepts the passage of the Kalika Purana
which Nilkantha questions (/), and derives from it the rule that
tonsure and the subsequent samskaras are at least requisite to
the completion of sonship (g). Hence there can be no adoption of
a boy whose tonsure has been performed (h). As there is no
ceremonial tonsure as a samskara in the lower castes (i) the
obstacle it would create doe« not exist amongst them (k), nor has
any rite to be performed in order to complete an adoption beyond
a gift and acceptance distinctly for that purpose.
Colebrooke too says — ' ' Adopted sons being duly initiated by the
adopter under his own family name become the sons of the
adoptive parent. The upanayana (thread ceremony) . . .
must be performed in the name of the adopter's gotra " (l).
(h) MS. 1649.
(c) Lakshmibai v. Ramchandra, I. L. R. 22 Bom. 590; Vedavelli v. Man-
gamma, I. L. R. 27 Mad. 538, 539.
(d) MS. 1661. Suhbarayar v. Subbammal, I. L. R. 21 Mad. 497.
(e) Col. Dig., Book V., T. 273 ss.
(/) Vyav. May., Chap. IV., sec. V., para. 20.
((/) Col. Dig., Book v., T. 183 Comm.
(/i) Col. Dig., Book v., T. 273 Comm. See 2 Str. H. L. 109.
(i) Col. Dig., Book V., T. 134, note. There is in most a tonsure, but without
the sacramental significance.
(fe) Col. Dig., Book v., T. 275 Comm. sub fin.
(I) Col. in 2 Str. H. L. 111. See above, p. 838.
998 HINDU LAW. [BOOK III.
The performance of the sacred ceremonies is not competent to
a woman or a man of low caste, since the utterance of the Vedic
formulas is forbidden to them (m). The difficulty is removed by
a vicarious performance of these rites. " Like the consecration
and dismissal of a bull, the adoption of a son may be completed
by an oblation to fire performed through the intervention of a
Brahmana " (n). The Brahmana incurs guilt, but the spiritual
purpose is none the less achieved (o).
In Madras the mere gift and acceptance as in adoption constitute
adoption even amongst Brahmanas (p). Proof of the datta homam
is not necessary there. The Madras High Court quoted with
approval Sir T. Strange 's statement:
There must be gift and acceptance manifested by some overt
act. Beyond this, legally speaking, it does not appear that
anything is absolutely necessary, for as to notice to the Kajah
and invitation to kinsmen, they are agreed not to be so, being
merely intended to give greater notoriety to the thing, so as to
obviate doubt regarding the right of succession, and even with
regard to the sacrifice of fire, important as it may be deemed, in
a spiritual point of view, it is so with regard to the Brahmin onlv ;
according to a constant distinction in the texts and glosses, upon
matters of ritual observance, between those who keep consecrated
and holy fire, and those who do not keep such fires, i.e., between
Brahmins and the other classes, it being by the former only that
(m) Vyav. May., Chap. IV., sec. V., paras. 12 — 15.
(n) Col. Dig., Book V., T. 275 Coram.
(o) Vyav. May., Chap. IV., sec. V., para. 14; 2 Str. H. L. 89.
(p) V. Singamma v. Ramanuja Charlu, 4 M. H. C. R. 165. On this doctrine
the Judicial Committee has observed : " Then it has been more recently decided
in the Madras High Court that even in the case of an adoption by a Brahmini
woman the ceremony is not necessary. Their Lordships intend to follow the
example of the High Court in this case in not considering to what extent the
Madras decision is correct, and how far the ceremonies may be omitted in the
case of adoption by a Brahmini woman. They may, however, observe that the
reasoning of the Madras Court applies even d fortiori to Sudras. The other
Indian decisions which have been cited, and particularly those of the late Suddur
Dewanny Adawlut, clearly show that the present question has long been treated
as an open and vexed one by Pandits as well as Judges. It was so treated in a
case before their Lordships in 1872, Sree Narain Mitter v. Sreemutty Kishen
Soondory Dassee, L. R. I. A. Supp. 149, but was not then decided, the suit being
dismissed upon another ground." Indromoni Chowdhrain v. Behari Lai Mullick,
L. R. 7 I. A. 36. Subharayar v. Suhbamrnal, I. L. R. 21 Mad. 497; Vedavelli
V. Mangamma, 1. L. R. 27 Mad. 538.
S. VI. D.] CEREMONIES ADOPTING SAGOTRAS. 999
the datta homam with holy texts from the Veda can properly be
performed, as was held in the case of the Rajah of Nobkissen by
the Supreme Court at Bengal. ..." (q).
Even in Bombay and amongst the classes who imitate the
Brahmanas in their ceremonies proof of the homa has not in all
cases been thought essential (r) by the Courts.
In one case it seems to have been held that the religious
ceremonies might be dispensed with even in the case of
Brahmanas (s), while in Tilak v. Tai Maharaj it has been held
that {t) no datta homam is necessary in case of adoption of a son
of the same gotra. So in Valubai v. Govind Kashinath (v) the
adoption of a brother's son without the homam was held valid.
In one instance a Sastri pronounced an adoption without
sacrifice valid for a Brahmana. An adoption publicly made by a
Brahmana without the homa was, he said, valid on the authority
of the Logakshi Bhaskar (w.)
D. 1. 1. — Ceremonies and Forms.
(h). In Adopting Sagotras.
The homa sacrifice or burnt offering deemed religiously indis-
pensable in other cases is by custom pronounced unnecessary in
the adoption of a brother's or daughter's son (or a younger
brother) (x). In these cases the mere verbal gift and acceptance
are said to suffice (y). As a daughter's son can be adopted only
by a Sudra, and no Sudra can pronounce a mantra from the
Veda (z), the homa must in strictness be dispensed with in his
case, though a vicarious offering and recitation by a Brahmana
may according to the Vyav. May. Chap. IV. sec. V. para. 13, and
iq) V. Singamma et al. v. Ramanuja Charlu, 4 Mad. H. C. B. 167.
(r) Crastnarao v. Raghunath, Perry, 0. C. 160; Lakshmihai v. Ramchandra,
I. L. K. 22 Bom. 890.
(s) Jagannatha v. Radhahai, S. A. 165 of 1865.
(t) I. L. R. 39 Bom. 441, P. C.
(c) I. L. R. 24 Bom. 218.
(w) MS. 1688. See above, p. 825. The authority is not generally admitted.
(x) Steele, L. C. 46; Comp. Col. Dig., Book V., T. 275 Comm. Valuhai v.
Govind Kashinath, I. L. R. 24 Bom. 218.
(ij) See above, p. 832.
(z) Datt. Mim., sec. I. 26.
1000 HINDU LAW. [BOOK III.
by custom answer the purpose (a). In the case of a brother's son
there is no need for a discharge from the gotra of birth and an
admission to that of adoption, as both are the same, so that the
main purpose of the fire sacrifice not existing, the sacrifice itself
becomes needless (b).
The adoption of a nephew by word of mouth without burnt
sacrifice is valid (c). The Sastri, however, said in another case:
' * The prescribed forms cannot be dispensed with even in the case
of the adoption of a member of the adopter's family " (d). But
again, as in the following case, the ceremonies may be excused :
" An uncle must perform the ceremony even to adopt his nephew.
But if he has accepted a gift of the nephew and performed
his munj the boy is thus affiliated without the (regular)
ceremonies " (e).
In Bengal the adoption of a kinsman may be made by verbal
declaration, in presence of witnesses, but without any religious
ceremony (/).
D. 1. 1, — Ceremonies and Forms — Constitutive.
(c). In Adopting after Tonsure.
It has been seen (g) that in the case of an adult the gift by his
parents is as indispensable as in the case of a child (h). The formal
acceptance is equally indispensable, though the placing of an
adult son in the lap of the acceptor (z) may not be regarded as
essential. Where burnt offerings are requisite they are not less,
but if possible more, necessary in the case of one who, by
(a) Comp. Datt. Mim., sec. I. 27. Valubai v. Govind KasJiinath, supra.
(b) 2 Str. H. L. 89, 104, 107, 123, 220.
(c) Huehatrao Mankur v. Govindrao Mankur, 2 Borr. 83, 95. Yama says :
"It is not expressly required that burnt sacrifice and other ceremonies should
be performed on adopting the son of a daughter or of a brother, for it is accom-
plished in those cases by word of mouth alone." (Wak Danu, a verbal gift.)
(d) MS. 1673. The Sastri is .supported by this, that the Smritis which
contemplate adoption from within the gotra still prescribe the homa sacrifice.
See ex. gr. Vasishtha XV.
(e) MS. 1690.
(/) Kullean Singh v. Kripa Singh, 1 C. S. D. A. R. 9.
(g) See p. 832.
{h) See pp. 817, 832.
(t) Steele, L. C. 184.
S. VI. D.] CEREMONIES CASE OF A DVYAMUSHYAYANA. 1001
the successive samskars has become more firmly knitted to his
family of birth and its sacra (1). If adoption is at all regarded by
a caste as involving a change of religious dedication it is not easy
to conceive how it can take place when the samskaras have been
completed even in the case of a man of one of the lower castes {m) ;
but where the adoption is within the same gotra or quasi-gotra,
no change of invocation is required, and the formal transfer should
suffice.
In the case of untonsured children (n) mere irregularities in
forms used in adopting are said to be cured by means of the
performance of the sacrifices and samskaras by the adoptive
father (p). The following is an instance :
" When a man has received a son in adoption, whether regularly
or not, and has performed sacrifices for him as included in the
adoptive father's gotra, he must be recognized as an adopted son.
The adoption is not affected by the natural father's subsequently
performing the boy's munj " (q).
Sacrifice to fire will undo the effects of tonsure in the natural
family (?•).
D. 1. 1. — Ceremonies and Forms — Constitutive.
{d). In the Case of a Dvyamushyayana.
The ceremonial in the adoption of a son as a dvyamushyayana
does not differ from that of the ordinary adoption except by the
variance in the formula of gift. " He shall belong to us both " (s).
(l) See above, p. 809.
(m) I.e. not twice-born. See above, p. 825, note (i).
(n) See Datt. Mim., sec. IV. 33.
(p) See Datt. Mim., sec. IV. 69.
(g) MS. 1677. See Col. Dig., Book V., T. 183 Comm. ; Datt. Mim., sec. IV.,
33 88.
(r) Sy Joymony Dossee v. Sy Sybosoondry Dossee, 1 Fult. 75. See Datt.
Mim., sec. IV. 61, 52. The author insists on a restriction to five years of age-
not observed in Bombay— in order that the boy's investiture may take place in
the adoptive family. The Datt. Chand. extends the age to eight years, sec. II.
23, 27, 30. This authority also insists on investiture not having taken place
as a condition of fitness not apparently to be replaced by any ceremonies. In
the case of a Sudra marriage there is the same obstacle as investiture in the case
of a twice-born. (Ibid., para. 32.)
is) Vyav. May., Chap. IV., sec. V., para. 21.
1002 HINDU LAW. [BOOK III.
D. 1. — Ceremonies and Forms — Constitutive.
D. 1. 2. — Amongst the Lower Castes.
The sacrifice of fire is important with regard to Brahmanas
only (t).
" It is held that, if a lad be adopted into a family, even where
it is not the custom to perform homam (sacrifice of adoption), he
cannot be turned out of it at will " (v).
" It has been held that, in the case of Sudras, no ceremonies,
except the giving and taking of the child, are necessary to an
adoption." " The giving and taking in such an adoption ought
to take place by the father handing over the child to the adoptive
mother, the latter intimating her acceptance of the child in
adoption " {w).
" As the Sastras do not recognize Kshatriyas as existing in
the Kali age, those who call themselves so should follow the
ceremonies prescribed for Sudras " (x).
(t) Nobkissen Raja's Case, 1 Str. H. L. 96; Th. Oomrao Singh v. Th. Mahtab
Koonwar, 4 N. W. P. R. 103. The needlessness of the datta-homam ceremony
amongst Sudras is placed by Ellis on the ground of their having no gotra (in
the stricter sense). See above, pp. 831, 836. The transfer from the care of one
to another set of tutelary deities bemg impossible, the rite by which it is con-
summated is superfluous. See above, pp. 823 — 829. It is plain that the central
idea of adoption according to the Brahmanical conception must be entirely
wanting in the case of Sudras. The indigenous natural adoption of the latter has
been wrought into a kind of harmony with the former only by the accommoda-
tions shown in the preceding pages. Sraddhas are now looked on as appropriate
to nearly all castes. See above, p. 825.
{v) 2 Str. H. L. 126. The following case rules only that no other ceremonies
are necessary in Bengal : " It is admitted that whatever may be the force of the
words ' so forth ' in the case of Brahmins, or members of the other superior
classes, the only religious ceremony that is essential to an adoption by a Sudra
is the datta homam, or burnt sacrifice, which it is said he, though as incompetent
to perform that for himself as he is to repeat the prescribed texts of the Vedas,
may perform by the intervention of a Brahmin priest." Indromoni Chowdhrain
V. Behari hall Mullick, L. E. 7 I. A. 35.
(w) Shoshinath Ghose et al. v. Krishna Sunderi Dasi, I. L. R. 6 Col. P. C. 381.
{x) MS. 1675. ..." The word Dvijate (twice-born) which in former ages
included Brahmins, Kshatriyas, and Vaisyas, in the present is generally under-
stood to be confined to Brahmins, these only performing the upanayanum, or
ceremony of tying on the sacrificial cord; whence the second birth, with the
texts of the Veda." 2 Str. H. L. 149; ibid. 263. Pure Kshatriyas and Vaisyas
are not now recognized, Steele, L. C. 89, 90. In 2 Str. H. L. 263, Ellis gives
an instance of a considerable conversion of Lingayats who thereon assumed the
sacred thread as Vaisyas. Such cases are not very uncommon, and they justify
the distrust with which the Brahmanas look on pretensions to the twice-born
caste rank.
S. VI. D.] CEREMONIES — AMONGST LOWER CASTES. 1003
" An oral adoption is effected by the ceremony of giving and
accepting " {y).
An overt act of adoption is sufficient to prove an adoption,
unaccompanied by religious ceremonies. But evidence of the
giving and receiving is indispensable, and is easily procured where
there has really been an adoption in a family of any local
consequence (z).
" The Sastras give no rules of adoption applicable to Lingayats.
If the caste rules prescribe any particular ceremonies, these should
be observed " (a).
But even of a Simpi it was said : " No one (not even a brother's
grandson) can be adopt-ed without the ceremony of homa or burnt
offering " (b). The Sastri must, in this case, be considered to have
stated the law too stringently.
A dying widow put sugar in the mouth of a child of one of her
relatives and called him her son. The Sastri said there was nothing
in the Sastras to give validity to this as an adoption (c).
" The Sudras cannot recite the Vedic texts, but they can adopt,
confining themselves to the ceremonies proper to their caste " (d).
In a Sudra adoption the ceremony of " pootreshto jog " is not
essential, yet it is conformable to law and religion; and if
performed, is the best proof of real intention of adoption (e). It
has been pronounced essential when the adoption is in the dattaka
form (/). But it is not necessary in Bombay {g).
Among the Sikhs proof of datta homam does not seem to be
essential (h).
Whether in Bengal religious ceremonies are generally necessarj^
to make valid adoptions among Sudras might seem uncertain (i).
iy) MS. 1655. (Sudras.)
(z) Premji Dayal v. Collector of Sural, E. A. 54 of 1870; Bom. H. C. P. J.
for 1873, No. 12.
(a) MS. 1677.
(b) MS. 1689. The Simpi ranks as an Atisudra, i.e. below the recogni/.ed
Sudra. See Steele, L. C. 107.
(c) MS. 1687.
id) MS. 1675. See above, p. 998 (o).
(e) Hurrosoondree Dassee v. Chundermohinee Dassee, Sev, 938.
(/) Luchmun hall v. Mohun Loll, 16 C. W. E. 179.
(g) See above, pp. 1002—3.
ih) Deo dem Kissen Chundershaw v. Baidam Bebee, East's Notes, Case 14.
(t) Sri Narayen Hitter v. Sy Krishna Soonduri Dossee, 11 C. W. E. 196 ; S. C.
2 B. L. E. 279 A. C. J. ; Nittianand Ghose v. Kishen Dyal Ghose, 7 B. L. E. 1;
S. C. 15 C. W. E. 300.
1004 HINDU LAW. [BOOK III.
The performance of the datta homam was once held essential
there to the adoption even of a Sudra (k), but this was afterwards
overruled (I) by a Full Bench, no further ceremony, it was said,
being necessary than gift and acceptance (w).
D. 1. — Ceremonies and Forms — Constitutive.
D. 1. 3. — Subsidiary Forms.
Amongst these are the expressions of assent by the relatives and
the representvative of the Government. Additional prayers and
sacrifices fall into the same class. But the chief subsidiary form
is that of reducing the declaration of transfer to a formal instrument
signed by the parents and attested by the relatives and other
principal persons present. Where any particular settlement is
made, varying in any way the rights and obligations of the parties
within the limits allowed by their law, a written instrument should
be deemed indispensable. For the adoption itself no writing is
necessary; but in every case it may probably be useful to
authenticate the transaction. Macnaghten says :
There is no law requiring the execution of a written instrument
on the occasion of receiving a boy in adoption, though the practice
of resorting to writing is prevalent " (n). And the Judicial
Committee ruled that neither registration of adoption, nor any
written evidence, is essential to validity of adoption (o) :
No stereotyped form of adoption is requisite; absence of
registration or of a stamp may raise suspicion but cannot
invalidate the deed (p). The language of the Privy Council in
the case lately quoted is important. " According to the Hindu
Law, neither registration of the act of adoption, nor any written
evidence of that act, having been completed, is essential to its
validity. It is to be lamented, that an irrevocable act, which
(fe) Bhairahvath Sye v. Maheschandra Bhaduri, 4 B. L. E. 162 A. C. ; S. C.
13 C. W. E. 169.
(l) Behari Lai Mullick v. Indramani Chowdhrain, 13 B. L. E. 401; S. C.
21 C. W. E. 285.
(m) Nittianand Ghose v. Krishna Dyal Ghose, 7 B. L. E. 1.
(n) 2 Macn. H. L. 176.
(o) Sootrugun Sutputty v. Sahitra Dye, 2 Knapp, p. 287 ; Pritima Soonduree
V. Anund Coomar, 6 C. W. E. 133; 2 Wyman, 135.
(p) Pritima Soonduree v. Anund Coomar, 6 C. W. E. 133.
S. VI. D.] CEREMONIES — SUBSIDIARY FORMS. 1005
defeats the just expectations of the relations of deceased persons,
may, at any distance of time after it is supposed to have been
done, be proved by verbal testimony. It would certainly contribute
much to the security of property and the happiness of Hindu
families, if, in a country where the religious obligation of an oath
is unfortunately so little felt, and documents are so readily
fabricated, adoptions and all other important acts were required
to be perfected in the presence of some magistrate and recorded
in some Court."
" But although neither written acknowledgments, nor the
performance of any religious ceremonial, are essential to the
validity of adoptions, such acknowledgments are usually given,
and such ceremonies observed, and notices given of the time®
when adoptions are to take place, in all families of distinction, as
those of zemindars or opulent Brahmans, that wherever these have
been omitted, it behoves this Court to regard with extreme
suspicion the proof offered in support of an adoption. I would
say, that in no case should the rights of wives and daughters be
transferred to strangers, or more remote relations, unless the
proof of adoption, by which that transfer is effected, be proved by
evidence free from all suspicion of fraud, and so consistent and
probable as to give no occasion for doubt of its truth " (g).
The execution of deeds, without actual gift and acceptance, is
not sufficient (?^) to constitute an adoption. A mere constructive
giving and receiving cannot be relied on. A suit to set aside deeds
giving and receiving in adoption, where no son was given according
to the deeds, is not maintainable (s). [For without gift and
acceptance there can be no valid adoption, and cancellation does
not avail anything.] Where a deed was executed, signifying an
intention, if a certain approval was obtained, to take a boy 'n
adoption, and the boy was not given or accepted, the adoption
was held incomplete, the deed being provisional and intended to
be acted upon during the life of the executing party, who had not
capacity to make a testamentary disposition (t).
iq) Lord Wynford in Sootrugun Sutputty v. Sabitra Dye, Knapp's P. C.
pp. 290, 291.
(r) Siddesory Dossee v. Doorga Churn Sett, 2 I. J. N. S. 22 ; S'ri Narayan
Hitter v. Sy Krishna Sundari Dasi, 11 C. W. E. 196; S. C. 2 B. L. E. 279
A. C. J.
(s) Sri Narayan Mitter v. Sy Krishna Sundari Dasi, 11 C. W. E. 196; S. C.
2 B. L. E. 279 A. C. J.
(f) B. Banee Pershad v. M. Syad Ahdool Hye, 25 C. W. E. 192.
1006 HINDU LAW. [BOOK III.
An adoption of a daughter's son was held invalid for want of
a writing or deed of adoption, and for want of proof that religious
ceremonies were performed [v). This decision cannot be considered
very satisfactory. If the parties were Brahmanas the adoption of
a daughter's son was invalid. If they were Sudras religious
formalities were unnecessary.
D. 1. — Ceremonies and Forms — Constitutive.
D. 1. 4. — Informalities.
According to the Poona castes — " Any irregularity or defective
performance in the adoption of customary rule, ... is a
cause of its annulment " (w).
It is not easy to gather from the cases what informalities are to
be regarded as vitiating an adoption and what do not affect its
validity. The chief authorities tend, it will be seen, to the
sufficiency of a gift and acceptance authenticated by some
religious rites, especially the homa (x). The others cannot be
regarded as so important that the omission of some of them is a
cause even for grave suspicion. Colebrooke says : "An inadvertent
omission of an unessential part as sacrifice does not vitiate
adoption " (y). . . . " The essence of the adoption of
a son given ... is the gift on the one side, and the
formal acceptance of the child as a son on the other . . .
the rest of the ceremonies prescribed . . . may be completed
in pursuance of the adopter's intention, by others for him,
if he should die prematurely. The unintentioned omission of
some part of them by the adopter would hardly invalidate the
adoption; though the wilful omission of the whole by him might
have that effect, since the performance of the ceremony of tonsure,
and other rites, in the family of the adopter, is indispensable to
the completion of the adoption " (z).
" However defective the ceremony," Ellis said, " and however
small in consequence the spiritual benefit, the act of adoption
(o) Baee Gunga v. Baee Sheokoovur, Bom. Sel. Eep. 80.
(w) Steele, L. C, App., p. 388.
(x) See above, p. 836 ss. The Sastris, as we have seen, are more exacting.
iy) 2 Str. H. L. 126.
(z) Colebrooke in 2 Str. H. L. 155
S. VI. D.] CEREMONIES INFORMALITIES. 1007
cannot be set aside on any account whatever; a fortiori, not on
account of any informality " (a). And Colebrooke on the same
case, " The adoption being complete, it cannot be annulled. An
adopted son may be disinherited for like reasons as the legitimate
son (Mitakshara on Inheritance, Chap. II., sec. X.), but he cannot
forfeit the relation of son " (b). " The meaning of that passage
is, that a lawful adoption, actually made, is not to be set aside
for some informality which may have attended it; not that an
unlawful adoption shall be maintained" (c).
In one case Sir E. Perry expressed himself thus :
" Wassadeo Wittaji expressed a strong desire in his will that a
son should be adopted to him; and as we find it indisputably
proved that the widow did in fact solemnly adopt the infant
plaintiff in the presence of a great many Brahmins, Purvoes, and
relatives; that all the more important ceremonies were observed
the Ganputty Puja, or worship of the god Ganput, the Puja
Wachan, or reverence to the Ganges, the Hom or sacrifice of fire, —
we were inclined to think that even if other observances had been
disregarded, still, the essence of the ceremony having been
adhered to, the adoption was good for every legal purpose " {d).
The non-observance, however, of the ceremonies, other than
those held to be indispensable, though it does not render an
adoption invalid, yet will afford presumptive evidence against the
adoption where the situation in life of parties renders such forms
usual (e).
In Madras " if the performance of the datta homam be
established, the adoption is established; but, if otherwise, the
converse does not hold good. Further evidence may be adduced.
In no case can the omission of the ceremony affect an adoption
in other respects valid. If not performed, when the adoption is
from another go tram, it would seem, from analogy, that the son
so adopted must be anitya datta " (/).
(a) Ellis in 2 Str. H. L. 126.
(b) Colebrooke in 2 Str. H. L. 126.
(c) 2 Str. H. L. 178, 179.
(d) Crastnarao Wassadewji v. Raghunath Harichandarji et al., Perry's Or.
Cases, pp. 150, 161.
(e) Sutrugun Sutputty v. Sabitra Dye, 2 Knapp, 287; 1 C. S. D. A. R. 16.
(/) 2 Str. H. L. 220.
1008 HINDU LAW. [BOOK III.
D. 2. — Ceremonies and Forms — Collateral.
2. 1. — Inducing Good Fortune.
" Donations are to be given to Brahman mendicants " {g).
D. 2. 2. — Indicating Joy and Generosity.
" Some clothes and ornaments are to be presented to the
adopted child " (h).
D. 2. 3. — Authentic ative.
The instruments described above under sub-section D. 1. 3.
might properly be placed under this head also. But in some few-
castes they are thought essential, and in all they serve to make
the declaration explicit, A reference here seems enough. The
assembly of relations and neighbours is another and the usual
means of record of the transaction.
" At an adoption a festival is held, to which are invited relations,
friends, and leading men of the caste. Presents are distributed
among the head men of the caste, village officers, relations and
guests. The fact of distribution of sugar, cocoanut, and pan is
evidence of an adoption " (i).
E. — Variations — In the Case of §wasi-ADOPTioNS.
E. 1. — Disapproved Adoptions.
A distinction was taken by a Pandit in Madras between a
permanent (nitya) adoption accomplished by a ceremony including
the homam and a temporary (anitya) one, where the homam had
been dispensed with. In the latter case it was said the son of the
man thus adopted might be initiated in either gotra. Ellis
recognizes this (fe), but the anitya adoption is not allowed in
Bombay. The boy is wholly adopted or not at all.
ig) MS. 1675.
(h) MS. 1675.
(i) Steele, L. C, p. 184, " Pan " is the betel-leaf.
(k) 2 Str. H. L. 121, 123.
S. VI. E.] VARIATIONS CONNEXIONS RESEMBLING ADOPTION. 1009
The krita son, it is said, must be received from the hand of
the father or of the mother as his agent (I). This mode of adoption
is no longer allowed (w), except in the modified form used by
ascetics (n), who buy children to maintain a spiritual
succession (o). A Sastri thought the ordinary forms should be
used. " Sudras in adopting (and Gosavis are Sudras) are to omit
the recitations from the Vedas " (p).
" In the kindred case of the kritrima, or son made, the mode
of adoption as practised in those of our provinces in which it
prevails is very simple, being completed by the declaration and
consent of the parties without any religious ceremonies." The
Datt. Mim., however, makes the religious rites indispensable alike
to the Dattaka and Kritrima, and hence Colebrooke says they
must, when the krita form is allowed, be essential to that also {q).
As to Bombay, adoption after payment of a price is not, it is
said, recognized there in the Kali yuga (r), but one or two of the
Gujarath castes adhere to the practice, and " with some castes in
Madras the mode of adoption is uniformly by purchase " (s).
Amongst them it may be allowed on the ground of class usage,
which must also govern the ceremonies in any particular
instance (t). The krita adoption [i.e. by purchase] is really
obsolete, unless on the ground of local usage (v) even in Madras.
Variations in the Case of Qitasf-ADOPTioNS.
E. 2. — Connexions Eesembling Adoption.
In the case of a palak putra a mere assent of the parties openly
expressed is all that custom requires.
(/) Col. Dig., Book v., T. 281 ss. ; see 2 Str. H. L. 138, 143.
(m) Above, p. 806, note (r). (n) 2 Str. H. L. 133.
(o) See above, p. 516 ss. (p) MS. 1678. See above, pp. 834, 836.
(g) Colebrooke 2 Str. H. L. 165. The consent of the person adopted by the
kritrima form is indispensable. See above, p. 907.
(r) Eshan Kishor Acharjee v. Harischandra, 13 B. L. R. App. 42; S. C. 21
C. W. E. 381 ; see 2 Str. H. L. 166.
(s) 2 Str. H. L. 148.
(t) Above, p. 2.
(o) Gooroovummal v. Mooncasamy, 1 Str H. L. 102, 103; 1 Str. Notes of
Cases, p. 61.
The Roman adoption per oes et lihTam approached most nearly amongst the
Hindu forms, probably, to the krita. There was a real or fictitious sale by the
paterfamilias of the person adopted.
H.L. 64
1010 HINDU LAW. [BOOK III.
In one case, noted above {w), the Sastri was of opinion that by
mere nurture and recognition an Agarvali {x) had given to a boy
the status of an heir. But this, as shown in the remark, is opposed
to the general Hindu Law ; it could be sustained only on the ground
of caste custom.
Eecognition of dancing girls as daughters suffices, it was said,
to constitute adoption without any formal act (y).
SECTION VII.— CONSEQUENCES OF ADOPTION.
I, — Governed by the Ordinary Law.
I. 1. — Perfect Adoption.
A. — General Consequences.
A. 1. — Change of Status.
" Adoption causes an immediate- change of status " {z).
" The relationship of the son to his family of birth ceases " (a).
" The theory of adoption depends upon the principle of a
complete severance of the child adopted from the family in which
he is born, both in respect to the paternal and the mat^emal line,
and his complete substitution into the adopter's family as if he
were born in it " (6). An adopted son ceases to be the son of his
natural parents, and becomes the son of the adoptive father to
all purposes (c).
(w) P. 356, Q. 18. (x) See Steele, L. C. 97.
iy) Vencatachellum v. Venkalasamy, M. S. D. A. Dec. 1856, p. 66.
(z) MS. 1671. "Adoption alone constitutes affiliation; but the ceremony of
tonsure performed by the family, to which he originally belonged, renders it
essentially invalid. . . . But this affiliation once effected, is not cancelled by his
naming his former family in performing a sacrifice, or in consecrating a pool.
Birth caused by male seed and uterine blood is one ground of filiation, the second
birth, by investiture and other ceremonies, is equally a ground of filiation, by
whomsoever performed. When he who has procreated a son gives him to
another, and that child is born again by the rites of initiation, then his relation
to the giver ceases, and a relation to the adopter commences : this birth cannot
afterwards become null by his erroneously reverting to his original family."
(Col. Dig., Book v., T. 183 Comm.)
(a) MS. 1760.
(b) Uma Sankar Moitro v. Kali Komul Mozumdar et al., I. L. E. 6 Cal. 269.
(c) Gopeymohun Thakoor v. Sehun Koer et al., East's Notes, Case 64; 2 Mor.
Dig., p. 105; Appaniengar v. Alemaloo Ammal, M. S. D. A. K. for 1858, p. 6;
Narasammal v. Balaramacharlu, 1 M. H. C. E., p. 420. The statement must be
slightly qualified. See below.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1011
The adopted takes generally the rights and the duties of a
begotten son (d).
" If it is once conceded that the adoption is valid, all the legal
consequences attached to it must follow as a matter of course " (e).
It follows that " only one adopted son can subsist at one
time " (/).
When a Hindu gives his son in adoption, his power, it was paid ,
more resembles that of a proprietor than that of guardian {g).
This is true in so far as a guardian could not possibly give away
his ward. The father has power to annihilate his own paternal
rights, and does so by giving in adoption.
The chief purpose, and originally it seems the only purpose, of
adoption having been the maintenance of the adoptive father's
sacra (/i), it is said, " A son given is therefore the child, not of his
adoptive mother, but of his adoptive father only " (i). The interest
of the adoptive mother and her ancestors in the adopted son and
the religious duties to be performed by him is an idea of later
growth and less definitely settled. It may now be accepted,
however, that " if a son be adopted by the husband, the wife has
a secondary claim to that child, because property is common to
(d) Above, p. 349. "Adoption is as if the adoptive father had begotten the
son." Per Willes, J., in the Tagore Case, I. L. K. I. A. Supp., pp. 47, 67.
Kali Komul Mozoomdar v. Uma Shunkur Moitra, L. E, 10 I. A. 138.
(e) Per D. Mitter, J., in N. Rajendro N. Lahoree v. Saroda Soonduree Dahee,
15 C. W. E. 548. Sreenarain Mitter v. Sreemutty Kishensoondery Dassee, 11
Beng. L. E. 171 P. C. ; S. C. L. E. I. A. Supp. 149.
(/) Steele, L. C, p. 45. Gojyee Lall v. Musst. Sree Chundraolee Buhoojee,
L. E. I. A. Supp. 131 ; Mohesh Narain v. Taruck Nath, L. E. 20 I. A. 30.
(gf) Chitko V. Janaki, 11 Bom. H. C. E. 199. He is bound, however, to guard
the interests of his son (see above, sec. VI. A. 6). Under the Eoman Law down
to a late time a child could be disposed of like goods, and therefore let on hire
or pawned. This was forbidden except in cases of extreme necessity, such as
justify a sale under the Hindu Law, and at last wholly prohibited by Justinian.
See Maynz, Dr., Eom. sec. 410; Vyav. May., Chap. IV., sec. I., paras. 11, 12,
sec. IV., para. 41, sec. V., para. 2, Chap. IX., paras. 2, 3, compared with
Manu IX. 174, Vasishtha XV. 2; XVII. 31, 32. Apastamba forbids the sale,
Pr. II., Pat. 6, Kh. 13, para. 11. So, too, does Yajnavalkya. Katyayana allows
it in extreme necessity. Col. Dig., Book II., Chap. IV., TT. 6, 7, 16. Above,
p. 806.
(h) Above, p. 789 ss.
(i) Col. Dig., Book V., T. 273 Comm. See H. H. Wilson, Works, vol. V.,
p. 57.
1012 HINDU LAW. [BOOK III.
the married pair (fe), and the line of the maternal grandfather is
the ancestry of the adopter's father-in-law " (I).
I. 1. A. 2. — Change of Sacra.
The change of sacra, that is of connexion with the manes of
ancestors, of obligations to them, and of the peculiar family rites
and formulas, is the most important element of adoption to the
orthodox Hindu. The supreme importance of initiation as
completing this connexion is much dwelt on in the Sastras (m),
and the due celebration of sraddhas occupies the chief place in
the religious books (n). For their effectual performance the son
adopted must be qualified by a complete reception into the
family (o).
When a son has been adopted, and has gone through the
samskaras, it must be inferred that, as in the case of a son by
birth, a deliverance from put of the ancestors by adoption has by
this fulfilment of duty been effected (p). In the event therefore
of his death, no further adoption is necessary for the fulfilment of
religious duty.
(k) See above, p. 86; Col. Dig., Book II., Chap. IV., T. 18.
(I) Col. Dig., Book v.. Chap. IV., T. 275 Comm. The expression is in English
very awkward. The son being commanded to honour his maternal grandfather,
this is an interpretation of the command for the case of an adopted son. In the
event of an adoption during a son's exclusion from caste, followed by the son's
re- admission, the position of the adopted son on a reconciliation between the one
he has replaced and his father seems not to have been settled. (See above,
pp. 814, 815.) The adopted aon would probably be reduced to a share of one-
fourth.
(m) See above, pp. 789, 811 ss.
(n) Comp. Vyav. May., Chap. IV., sec. VII., 29 ss.
(o) See Vasishtha II. 4, 5; XI. 49; H. H. Wilson, Works, vol. V., p. 46,
compared with the statement above, p. 880.
" Sraddha ceremonies are performed on the anniversary of a father's death.
The Paksha ceremonies are performed subsequent to the first year after a father's
death, at some time during the month Bahadrapad. There are also daily and
monthly offerings for the benefit of a father and ancestors deceased." Steele,
L. C, p. 26 (note); Col. Dig., Book V., T. 399 (note), enumerates sixteen
Sraddhas that must be performed for a Brahmana recently deceased. See Col.
Dig., Book v., T. 276 Coram. ; above, pp. 418, 421, 795, 808 ; and Comp. Ortolan,
Instituts, Tom. II., §§ 129, 132, on the corresponding institution at Eome.
(p) Col. Dig., Book IV., T. 155 Comm.; above, p. 789.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1013
The oeremonial impurity arising from births and deaths in the
family of his birth no longer affects the person who has been
transferred to another by adoption. He presents no oblations to
his natural father and his ancestors, but ' * distinct oblations ' ' to
the adopted father and his ancestors (q).
I. 1. A. 3. — Adoption Transfers the Offspring.
" A man having a son is adopted and then dies. His son takes
his place as heir in the adoptive faxnily " (r).
" This is so though another son is born (to the adopted) after
the adoption " (s).
" The son born before his father's adoption not only is heir
to the adoptive grandfather's estate, but is answerable for a debt
of the gi-andfather admitted by his father " (t).
By Act XXI. of 1870, § 6, the word "son" in the Indian
Succession Act (X. of 1865) is in many places made to extend to
an adopted son, and " grandson " to a grandson by adoption. The
following sections of the Succession Act must be so construed,
§§ 62, 63, 92, 96, 98, 99, 100, 101, 102, 103, 182.
I. 1. A. 4. — Adoption in the Adoptive Father's Life is
Prospective.
The general effect of adoption is as if a son had been bom,
though the rights thus acquired are subject t-o total (r) or partial
defeasance by the birth of a real son. Thus, it has been said, it
is competent to an adopted son to claim a partition of ancestral
property (iv) where a begotten son could do so. The adoption is
in this sense tantamount to the birth of a son to the adopter (x) ;
consequently there cannot be two adopted sons (y). But neither
iq) Datt. Chand. IV. 2.
(r) MSS. 1730, 1742.
(*) MS. 1738.
it) MS. 1737. See above, p. 76.
(-0) As in the case of a Eaj impartible. The right to maintenance must be
excepted.
(w) MS. 1731.
(x) Heera Singh v. Burzar Singh, 1 Agra H. C. R., p. 256.
iy) Steele, L. C, App., p. 393; above, p. 821. Gopee Loll v. Musst. Sree
Chundraolee Buhoojee, L. R. I. A. Supp. 131.
1014 HINDU LAW. [BOOK III.
does the adoption any more than the birth of a son affect bygone
transactions of the father which were valid when entered into (z).
An adoption during the pendency of a suit affecting the ancestral
property, does not affect a previously completed gift by the
adoptive father though accompanied by a trust in his own
favour (a).
I. 1. A. 5. — Adoption After the Adoptive Father's Death
IS Eetrospective.
" As soon as a son is adopted by a widow he succeeds to her
husband's estate. Her independent rights and those of her mother-
in-law forthwith cease " (b). The widow succeeds to her separated
husband, but her estate is subject to immediate defeasance on her
adopting a son. Her right is reduced to a legal claim to
maintenance.
Adoption works retrospectively and relates back to the death
of the husband of the adoptive mother, invalidating a gift or sale,
unless it was made for preservation of the estate from foreclosure
under a prior conditional sale by the husband (c), or other necessary
purpose. In the following cases the retroactive effect is expressed
most strongly : —
" In Ranee Kishenmunee v. Rajah Oodwunt Singh (d) it was
held that according to the Hindu Law, a boy adopted by a widow,
with the permission of her late husband, has all the rights of a
posthumous son, so that a sale by her, to his prejudice, of her late
husband's property, even before the adoption, will not be valid,
unless made under circumstances of inevitable necessity " (e).
{z) Even in the case of a partition the right of an after-bom son to share in
divided property depends on whether he was begotten at the time of the partition
{Yekeyamian v. Agniswarian et al., 4 Mad. H. C. K. 307, 310.) If begotten
before it, he would take a share; if after it, he would share only with his father
in the latter's share.
(a) Ramhhat v. Lakshman Chintaman Mayalay, I. Li. K. 5 Bom., at p. 635.
(6) MS. 1716.
(c) Prannath Rai v. R. Govind Chandra Rai, 5 C. S. D. A. K. 37; Moro v.
Balaji, I. L. R. 19 Bom. 809; Bijoy Gopal v. Nilratan, I. L. R. 30 Cal. 990.
' ' An adopted son is in most respects precisely similar to a posthumous son . ' '
Colebrooke in 2 Str. H. L. 127.
(d) 3 Beng. S. D. A. R. 228.
(e) Nathaji Krishnaji v. Han Jagoji, 8 Bom. H. C. R. 73 A. C. J.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1015
" In Bamundoss Mookerjea v. Musst. Tarinee (/) (in which the
decision of the Bengal Sadr Divani Adalat was adopted without
qualification by the Privy Council) the Judges, referring to that
case, said: — ' In that case the son, when adopted, became the
undoubted heir, and it was of course the correct doctrine that
no sale made by a widow, who possesses only a very restricted
life-interest in the estate, could have been good against any
ultimate heir, whether an adopted son or otherwise, unless made
under circumstances of strict necessity " {g).
Yet in the case last quoted it was laid down that an adopted
son has an absolute vested interest and a right of action only from
date of actual adoption (h), and that the power of adoption in a
widow does not, per se, divest her of her life interest. Her
position in the meantime is such as has already been described (i),
and as she is certainly a manager in possession, and represents the
estate, her transactions with respect to it must, for the benefit of
the estate itself, be upheld (/c) where they have not been palpably
detrimental or in excess of her limited powers of dealing with
immovable property inherited from her husband (1).
In the case of a dispute between a widow and her husband's
sapindas it was lately said by the High Court of Madras : " . . .
Where bona fide claims are made which call for adjustment,
where the existence of the husband's consent to the adoption is
in question, we consider that the powers of the widow and
reversioners may not improperly be exercised to effect a settlement
of the claims before an adoption is made, and that their exercise
is not affected by the circumstance that the dispute as to the
direction or consent conveyed to the widow was at the same time
set to rest, and that the arrangements affecting the estate were
made in contemplation of the adoption. The widow, although she
may have received an express direction to adopt, could not have
been compelled to act upon it, and she might have persisted in
her denial that she had received authority to adopt, had the
reversioners declined to allow her to retain possession of the
jewels " (m).
if) 7 M. I. A. 169. ig) Nathaji v. Hart, supra,
(h) Musst. Tarinee v. Bamundoss Mookerjea, 7 C. S. D. A. E. 633.
(t) Above, pp. 87, 349.
(fc) H. H. Wilson contends for the widow's full power of disposal. Works,
vol. v., p. 66. Above, p. 291 ss.
(I) See above, pp. 349, 350.
(w) Lakshmana Rau v. Lakshmi Ammal, I. L. K. 4 Mad. 160, 165.
1016 HINDU LAW. [BOOK III.
The right of inheritance then vests in an adopted son from the
time of his adoption only (n) in this sense, that until the adoption
by a widow, she fully represents the estate, though with limited
powers, and may maintain suits concerning it. Such a suit
continued in her own name after an adoption was held to have
been maintained by the widow as guardian of the adopted son (o).
For other purposes the adoption reacts as from the moment of the
adoptive father's death.
The continuity of existence with the deceased does not affect
rights and interests which were not his in his life or which are not
a mere development of these (p). Thus where a new grant had
been made, it was ruled that the absolute ownership of Government
in the interval from the death of the Rajah until the act of State
by which a transfer of territory was made to his widows and
daughters was fatal to the claim of a defendant, in preference to
the widow, as lineal heir to the Eajah, by right of adoption, though
the adoption was valid (in all other resp'ccts) (q).
I. 1. A. 6. — Adoption is Irrevocable and Irrenounceable.
Adoption once really made is indefeasible (r). Accordingly the
Sastris say: — "An adoption made with due ceremonies and
followed by the chaul cannot be set aside " (s). " It is held that,
if a lad be adopted into a family, even where it is not the custom
to perform homam (sacrifice of adoption), he cannot be turned out
of it at will " (t).
(n) Bhubanestoari Debt v. Nilkomul Lahiri, L. R. 12 I. A. 137.
(o) Dhurm Das Pandey v. Musst. Shama Soondri Dibiah, 3 M. I. A. 229;
S. C. 6 C. W. R. P. C. 43; 2 Str. H L. 127.
(p) See below, sub-sec. B. 2. 6 (b).
(g) Jijoyiamba Bayi v. Kamakshi Bat, 3 M. H. C. E. 424.
(r) 2 Str. H. L. 142. See above, pp. 347, 838. "An adoption concluded
agreeably to the Sastras is not annullable. It is not retractable among Brahmans
after the Horn ceremony has been performed, nor among the lower castes."
Steele, L. C, p. 184. Sreenarain Mitter v. Sreemutty Kishen Soondery Dassee,
11 Beng. L. R. 171, P. C. ; S. C. L. R. I. A. Supp. 149.
(s) MS. 1762. " The inadvertent omission of an unessential part, as sacrifice
is, even where it is enjoined, does not vitiate an adoption." Col. Dig., Book V.,
T. 273 Comm.
*' The adoption being complete, it cannot be annulled. An adopted son may
be disinherited for like reasons as the legitimate son (Mitaksh. on Inheritance,
Chap. II., sec. X.), but he cannot forfeit the relation of son." Colebrooke in
2 Str. H. L. 126. . (t) 2 Str. H. L. 126.
a. VII. I.] CONSEQUENCES OF ADOPTION. 1017
When a widow sought to violate this rule the Court said —
" Nor can we admit that the facts and the validity of the joint
adoption (by two widows) being unquestionable, she is singly
competent to set aside or annul in any degree an act which must
be assumed to have been performed in obedience to the injunctions
of her deceased husband " {v).
An adopted son cannot renounce his family of adoption and the
consequent obligations to which he is subject. He can but resign
his rights in that family (w). A Sastri declared that " an adoption
cannot be annulled except on sufficient grounds {i.e. not by mere
agreement) " {x), and the decisions rule that the status created
by adoption cannot be given up by the adopted son (?/) or dissolved
by the parties immediately concerned.
Where a woman sought to disclaim an adoption made by her
by a deed purporting to convey her property to her illegitimate
son, this was pronounced illegal, though the upanayana of the
adopted had been performed (after adoption) in his real father's
house. ' ' The adoption, ' ' Colebrooke said, ' ' being once completely
and validly made it cannot be recalled " (z).
In one case of an adoption of doubtful validity it was indeed
ruled that — If after becoming of age an adopted son execute an
agreement acknowledging the validity of his right to depend on
his performance of certain conditions, his infraction of these will
nullify his right (a). But the soundness of this judgment seems
open to doubt (h). A man must belong to the one family or the
other, it cannot rest on the mere option of another person (c).
I. 1. A. 7. — No Keturn to the Family of Birth.
This follows from the principles already laid down. According to
the Sastri, " The son given in adoption cannot be reclaimed " (d).
(v) Ry. Roop Koour v. Ry. Bishen Koour, N. W. P. S. D. E. N. S., Pt. H.
1864, p. 655.
(w) Above, p. 838. Comp. pp. 324, 722. Mahader Ganu v. Rayaji Sidu,
I. L. R. 19 Bom. 239.
(x) MS. 1741. See Mohapattur v. Bonomallee, Marsh, R. 317.
(y) Ruvee Bhudr v. Roopshunkar, 2 Borr. 713.
(z) 8 Str. H. L. 111.
(a) Musst. Tara Munee Dihia v. Dev Narayan et al., 3 C. S. D. A. R. 387.
(b) See Balkrishna Trimhak Tendulkar v. Savitrihai, I. L. R. 3 Bom. 54.
(c) See In re Kahandas Narandas, I. L. R. 6 Bom., at p. 164. Above, 187,
and sec- VI. A. 6 of this Book. (d) MS. 1748.
1018 HINDU LAW. [BOOK III,
To a question put to the Sastris by the Court in another case
they replied : —
' ' If any one about to adopt should receive from one not related
to himself in the male line that person's son, and should perform
his adoption according to the ceremonies of the Veda, and after
that cause his regeneration by performance of the choora and
oopanayana samskar, &c. (tonsure at three years of age;
investiture with the string at five or eight years ; and the remaining
regenerating ceremonies) in the name of his own gotra, or paternal
line, that son so invested with the lineage and estate of the
adopter has no right to keep up connexion with the other lineage,
that is, he cannot return to his own . . . "(e).
In Bengal as in Bombay the adopted son cannot return to hi^
family of birth (/).
I. 1. A. 8. — The Connexion by Blood with the Family of Birth
IS NOT Extinguished.
Although there is a complete severance in religious and secular
interests from the family of birth, the artificial status is not allowed
to make marriage possible between an adopted son and his real
mother or sister. It is only the religious and ceremonial connexion
with the family of birth that is extinguished, and as the Datt,
Mim. VI. 10 says, adoption does not remove the bar of con-
sanguinity operating against intermarriage within the prohibited
degrees {g).
I. 1. A. 9. — Terms and Conditions.
The incongruity of an adoption the operation or abiding validity
of which is to be subject to a term or condition has already been
noticed (h). In a case of this kind the Court said —
(e) Ruvee Bhudr v. Roopshunkar, 2 Borr. 656.
if) Sreemutty Rajcomaree Dossee v. Nohcoomar Mullick, 2 Sevestre, 641 note,
ig) Moottia MoodelU v. Uppon Venkatacharry, M. S. D. A. R. for 1858,
p 117; Narasammal v. Balaramacharloo, 1 M. H. C. R. 420. See above,
p. 912.
(h) Above, p. 187, note (b). Under the Roman Law there could be no
" adoptio ad diem " or " sub conditione," as mancipation by which it was
originally effected was a solemn public act not susceptible of qualification. See
Maynz, Cours. de Dr., Rom. sec. 412; Goudsm. Pand., p. 155; Maine, Anc.
Law, p. 206 (3rd ed.).
S. VII. I.] CONSEQUENCES OF ADOPTION. 1019
" We . . . cannot find that the Hindu Law recognizes a
conditional adoption, which appears to leave unsecured, and in
jeopardy, the objects contemplated by the adopting, and to involve
an element of injustice to the adopted party. . . . Insubordi-
nation to the widow of the deceased adopting father being an
insufficient [reason] ... we hold that he could not legally
do so (i) and that the entry of such condition in the wajih-
ool-urz (k) is worthless and ineffective. Nor do we admit that
any value or efficacy would accrue to the entry, or that any
validity would be given to the condition, even if the defendant,
. . . when still very young, whether he were legally of age
or not, authenticated the wajib-ool-urz, pro forma with the view
of curing the ostensible defect of its having been authenticated by
his father aft-er his decease. It would be extremely inequitable to
hold that he thereby deliberately intended to express his assent to
the conditions ... of which it is quite possible, and not at
all unlikely, that he was ignorant. Even if he were aware of it,
and ignorantly supposed himself to be bound by it, we are not
prepared to admit that he is for that reason bound by it " (Z).
In discussing under the preceding section (m) the legal
possibility of making an adoption subject to terms differing from
those annexed to it by the law, the effects of agreements and of
adoptions thus made have been to some extent considered. It
would seem that of the several cases which occur in practice, that
of the adoptive father's stipulations for preserving the estate and
securing his widow against destitution could not be refused effect
by the Courts, so far at any rate as they bear on his separate or
sole property. But if a man adopting for himself may do so on
terms varying the usual rights of the son, it is but a slight extension
of the principle when wills are once admitted to say that he may
by a power or will allow his widow to impose such terms. And
when a widow takes the whole estate without any will or direction
to adopt, but with an assumed licence from her husband, it may
be conceived that he, knowing an adoption was probable, but
entirely at the option of the widow, has given her a tacit authority
(t) I.e. prescribe such a condition.
(k) A petition, memorial.
(l) Per Curiam in Ram Surun Das v. Musst. Pran Kooer, N. W. P. S. D. R.
Pt. I., 1865, p. 293. Comp. the remarks of the Judicial Committee above r
sec. VI. A. 6
(m; Sec. VI. A. 6.
1020 HINDU LAW. [BOOK III.
to make her own terms. This logical development of the principles
involved in the allowance of a will seems to be contained in the
following two cases.
Where a power of adoption had been given by will to a wife
coupled with a direction that the widow should during her life
retain the whole of the testator's property, ancestral as well as
self -acquired, it was held that the widow, after adopting, had a
life interest with remainder to the adopted son (n).
In Ramasdmi Aiyan v. Venkataramaiyan (o) where the natural
father of a boy, whom the widow of a deceased Hindu proposed
to adopt as a son to her husband, entered into a written agreement
with her to the effect that the boy should inherit only a third of
the property of his adoptive father, the Privy Council held that
the agreement was not void, but was at least capable of ratification
when the adopted son became of age. Chitko v. Janaki {jp) was
referred to doubtingly. The stipulation that the boy adopted as
a son should obtain that status without the corresponding rights
was one, no doubt, unwarranted by the Hindu Law of the Sastras,
and was subject to challenge by the son until he had ratified it
on becoming sui juris. The Pandits consulted in Bengal on this
point had said that an instrument by which a widow adopting a
son reserved the property to herself for life was not lawful. The
adopted son, they said, in spite of such an instrument, was entitled
to the estate (g). In a somewhat similar case in Bombay, an
adoptive mother (Koli) made an agreement with her son, whereby
he resigned to her the bulk of the family property. This was
pronounced by the Sastri illegal, and the adopted son, if capable,
was, he declared, still entitled to inherit, subject to the duty of
maintaining the mother (r). But wills also are not allowed by the
Sastras, and yet in one form or another they have grown up to
meet social needs, even within the sphere of the Hindu Law. So
too the customary law has approved reasonable arrangements for
(n) Bepin Behari Bundopadhya v. Brojo Nath Mookhopadhya, I. L. K. 8 Cal.
357, following Musst. Bhagbutti Daee v. Chowdry Bholanath Thakoor et al.,
Ij. R. 2 I. A. 256. The latter is not a case of adoption, but of a settlement
lay a man on his wife with the concurrence of his kritrima son, to whom was
given a remainder on the wife's death.
(o) L L. E. 2 Mad. 91.
(p) 11 Bom. H. C. R. 199.
(g) Musst. Soolukhna v. Ram Doolal Pandeh, 1 C. S. D. A. R. 324 (Ist ed.K
Above, p. 178 (/i).
(f) MS. 15.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1021
the adoptiag mother's security. It seems impossible now to say
that this advance will not be maintained (s).
Cases such as that of Ramguttee Acharjee v. Kristo Soonduree
Debia, referred to above at p. 981 note (I), must raise questions
as to whether by the disposition the adopted son takes a vested
estate forthwith on his adoption, although his enjoyment or actual
possession be deferred, or whether his estate is wholly contingent
or future. Such questions will probably be dealt with according to
the analogies furnished by the English cases. A gift subject to a
condition precedent could hardly be made under the Hindu
Law (t), though one deferred, or by way of remainder, would not
be inconsistent with it, the ascertained interest being created from
the first. Such an estate, immediate in interest though deferred
in enjoyment, must have been contemplated by the Court in the
following remarks : — ' ' Whatever directions an adoptive father
may have given in regard to the time when the son was to get into
the management and enjoyment of the estate, still he was the son
and heir from the time of his adoption, and by his death apparently
the mother would succeed him " (v). The Judicial Committee
have held that a condition attached to the adoption is void, though
the adoption is good (i/;). The law in Bombay and Madras, as
already noticed, appears to be in favour of the validity of a
condition attached to a valid adoption, if it is fair and reasonable
and solely for the benefit of the adoptive widow.
(s) Any interest that a widow allows an adopted son to take in possession
during her own life must so far be a detriment to her own estate, seeing that
she is owner of the whole, and cannot, according to the Sastris, be deprived
of this which they regard as a jointure by any testamentary disposition made
by her husband. In the case of Musst. Goolah v. Musst. Phool (1 Borr. 173)
the Zilla Judge proposed to the Sastris a question — Can a man separated in
interest from his brother, and whose wife is alive, bequeath his property to
his brother's son? The answer, resting on the Mitakshara, was — "The wife
. . . has a right to inherit her husband's estate, and a will made by the
husband ... in favour of his brother's son is not valid " (pp. 175, 176).
This was confirmed by the Pandit of the Sadr Court (p. 180). The theory of a
power of bequest equal to the power of gift was not accepted by the law ofl&cers
in these cases, and the widow was regarded as taking by a kind of survivorship,
though no doubt with a restricted interest or faculty of disposal.
(t) See above, pp. 186 ss.
(v) Per L. Jackson, J., in Gohindo Nath Roy v. Ram Kanay Chowdkry, 24
C. W. K. 183.
(w) Bhaiya Rahidat Singh v. Maharani Indar Kunwar, L. R. 26 I. A. 63.
1022 HINDU LAW. [BOOK III.
I. 1. B. — Specific Effects.
B. 1. — As TO THE Kelations Between the Adopted and his
Family of Birth.
B. 1. 1. — Between the Natural Parents and the Son —
Immediate Personal Kelations.
(a) Parents the Active Subjects.
" When a father has given his son in adoption, his status and
rights as father are extinguished " (x). Accordingly it was ruled
that the adoptive parents have a right to the guardianship and
society of the adopted son superior to that of the natural
parents (y). Thei boy is often left for a longer or shorter time with
his family of birth, but " though an infant after adoption be
brought up by his natural parents, they must on demand surrender
him to the widow who adopted him (z). " The natural father need
not incur the expense of getting the boy married; it devolves
properly on the adoptive mother. She cannot recover from his
father the expenses of his adoption and investiture. She cannot
restore the boy, nor can the father reclaim him on the ground of
having got him married " (a).
" Tonsure performed in the family of the natural father, after
gift, has no vitiating effect " (b).
(h). — Son the Active Subject.
" A boy severed by adoption from his own family and
incorporated in the adoptive family is not affected in status by
(x) MS. 1759. Sreenarain Mitter v. Sreemutty Kishen Soondery Dassee,
11 Beng. L. E. 171 P. C.
(y) Lakshmihai v. Shridha,r Vasudev Takle, I. L. K. 3 Bom. 1.
(z) In the Mankars' Case the Sastris, in the opinion quoted above, p. 901,
recognize a widow's direct interest in adoption for securing her own future
happiness. See, too, p. 838.
(a) MS. 1754.
(6) Musst. Dooluhh Dai v. Manee Beebee, 5 C. S. D. A. E. 60. " The
adoption of a child ... for whom tonsure and other ceremonies were after-
wards performed under the family-name of his natural father, would be never-
theless valid : for the ceremony of tonsure performed under the family name
of his natural father is void, because he did not then belong to that family;
and because the ceremony is performed by one who had no right to do so, since
he truly became son of the adopter, and certainly belonged to his family, not
having already initiated under the family-name of his natural father when the
adoption took place." Col. Dig., Book V., T. 273 Comm.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1023
performing the funeral ceremonies of his natural father and
mother " (c).
* ' An adoptee performs the ceremonies of Kreea and Puksh for
his [natural] father and relations, only in case his natural father
should die without any other son or near relation, when he would
perform them as a Dharmaputra. An adopted performs Sutak (d)
for his natural family according to their adoptive relationship " (e).
" Since it is not a fit practice for a son given to perform the
obsequies of his former mother, it is proper to take for adoption a
boy whose mother is living, and who is given both by her and by
her husband " (/).
" In case of being adopted by his father's brother, the adoptee
is enjoined to perform the Sraddha both for his natural and
adoptive fathers, inheriting the property of the former, however,
only in default of heirs in order of succession before brothers'
«ons " (g)-
An adopted son is considered in the nature of a purchaser for
valuable consideration, which is his loss of inheritance in his
natural family (h).
I. 1. B. 1. 2. — Eelations AS TO Property.
" An adopted son forfeits all right of inheritance in his natural
family " (i). " He (the adopted son) cannot, after being adopted,
claim the family and estat-e of his natural father, which follow the
funeral oblations; nor is he liable to pay his natural father's
•debts" (fe). "He (an adopted son) can only inherit from his
(c) MS. 1673.
{d) Sutaka — Impurity ; here ceremonies for its removal.
(e) Steele, L. C, p. 185
(/) Col. Dig., Book v., T. 275 Comm. The conception is that without a
positive resignation the mother's claim to the son's religious services may
continue.
ig) Steele, L. C, p. 47. He ranks as a brother's son. Krishna v. Param-
shri, I. L. R. 25 Bom. 537.
(h) Gcypeymohun Deh v. Rajah Ray Kissen, cited in Doe Dem Hencower Bye
V. Hanscower Bye, East's Notes, Case 75; 2 Mor. Dig., p. 133. See above,
aec. VI. A. 7.
(t) Appaniengar v. Alemalu Ammal, M. S. D. A. Dec. 1858, p. 5; Chandra
Kunwar v. Chaudhn Narpat Singh, L. R. 34 I. A. 27 ; S. C. I. L. R. 29 All.
184.
(fe) Steele, L. C, p. 47; Mit., Chap. I., sec. XI., para. 32; above, p. 347;
€ol. Dig., Book V., T. 181; Manu IX. 142. The term "funeral oblation"
1024 HINDU LAW. [book III,
natural father, in default of other heirs in previous order of
succession ... in virtue of his adoptive, not his original,
relationship " {I). Even where the sacriJBcial idea is absent, " a
Jain adopted by his uncle ceases to be heir as son to his natural
father " (m). The Sastri added that " what he had acquired before
adoption by using the capital of his natural father belonged to the
latter " (n). The natural relation was in fact jurally annulled, and
his father would no more inherit from him than he from his
father (o). But in an emergency the Sastri says — " Should the
natural parents have no other heir, the son they gave in adoption
may perform their Sraddhas and take their property also" (p).
Among the Gyawals in Gaya adoption does not deprive the adoptee
of his rights in the family of his birth (q).
The Calcutta and the Madras High Courts have laid down that
what had solely and absolutely vested in the adoptee remaina
unaffected by his adoption (r). This point is, however, unsettled,
there being a difference of opinion thereon.
After adoption, the person adopted cannot mortgage property
belonging to his natural family, nor can his widow do so after his
death (s).
I. 1. B. 1. 3. — Eelations as to Obligations.
The natural father is not responsible for the debt of a eon given
in adoption (t). Nor conversely is the son liable (v). Thus the
Sastri says : — ' ' A son given in adoption must pay his natural
intends that which is made for a father. Pranvulluhh v. Deocristin, Bom. 8eL
Rep. 4 ; Kasheepershad v. Bunseedhur, 4 N. W. P. S. D. 343.
(l) Steele, L. C, p. 186.
(m) MS. 1757.
(n) MS. 1756.
(o) Colebrooke in 2 Str. H. L. 129. Muthayya v. Ninakshi, I. L. R. 25 Mad,
394.
(p) MS. 1761.
iq) Luchman Lai v. Kanhya LcU, L. R. 22 I. A. 51; S. C. I. L. R. 22 Cal.
609.
(r) Venkata Narasimha Appa Row v. Rangayya Appa Row, I. L. R. 29'
Mad. 437.
(s) Yesuhai kom Daji v. Joti, Bom. H. C. P. J. 1875, p. 16.
(t) 2 Str. H. L. 125; see Udaram Sitaram v. Ranu, 11 Bom. H. C. R. 76,.
84, 86.
(v) Pranvulluhh v. Deocristin, Bom. S. D. A. Sel. Rep. 4.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1025
father's debts only if he has inherited property from the natural
father " (w), and in the case of a suit it was ruled that an adopted
son is not liable for debts of his natural father who died in jail in
execution of a decree for debt against him (x).
I. 1. B. 1. 4. — Kelations Between the Adopted and the Other
Members of his Family by Birth — Immediate
Personal Kelations.
An adopted son is to be considered as one actually begotten by
the adoptive father in all respects except an incapacity to contract
a marriage in his family of birth (y).
" Adoption does not remove the bar of consanguinity operating
against intermarriage within the prohibited degrees " («).
" An adopted son is restricted from intermarrying with any girl
of either his natural or adoptive families within the prohibited
degrees, and his descendants are under a similar restriction with
regard to the former family to the third generation, viz., so long
as remembrance may continue of the adoption" (a). "He
cannot intermarry with either his natural or adoptive gotr " (b).
A Sastri said in one case, that " adoption severs the connexion
with the natural relatives so completely that the adopted son's
widow may adopt his younger brother " (c). We have seen that
there is some authority for this kind of adoption (d), but the better
opinion appears to be that embodied in the ruling that an adopted
son cannot adopt as his son his brother by birth (e).
I. 1. B. 1. 5. — Eelations as to Property.
" A son (an only son) who, having been given in adoption has
passed out of his family of birth, has no longer any claim to the
(w) MS. 1758. See above, p. 347.
(x) Pranvullubh Gokul v. Deokristen Tooljaram, Bom. Sel. Kep., p. 4.
(y) Narasammal v. Balaramcharlu, 1 M. H. C. B. 420. The same case
pronounces strongly against the adoption of a sister's son in the Andhra or
Telingana country. Kali Komul Mozoomdar v. JJma Shunker, L. K. 10 I. A.
138.
(z) Moottia Moodelli v. Uppon Vencatacharry, M. S. D. A. Dec. 1858, p. 117.
(a) Steele, L. C, p. 47. Above, pp. 837, 838.
(h) Steele, L. C, p. 186.
(c) MS. 1625.
id) Above, p. 911.
(e) Moottia Moodelli v. Uppon Vencatacharry, M. S. D. A. R. 1858, p. 117.
H.L. 65
1026 HINDU LAW. [BOOK III.
property of that family " (/), and reciprocally, a member of a
Hindu family cannot as such inherit the property of one taken
out of that family by adoption. His severance is so complete that
no mutual rights as to succession to property can arise between
him and his relations of the natural family (g). Hence it was
said, that on an adopted son dying without issue, his property
reverts to his adoptive family, his introduction into the new family
causing his severance from his natural kindred, and they forfeiting
all claims to succeed to his estate (h).
I. 1. B. 2. — Consequences as Creating Kelations in the
Family of Adoption.
B. 2. 1. — Between the Parents and Ascendants, and the Son
AND Descendants — Immediate Personal Relations.
(a) Parents the Active Subjects.
" An adoptive father is entitled to the custody of the person of
the adopted son " (i). It follows that the proper residence of an
adopted son is with his adoptive parents (k). The only exception
is in case of cruelty or incapacity. Thus it was ruled that the
adoptive parents, if willing, have a better right to act as guardians
of their adopted sons than the natural parents, in the absence of
proof of ill-treatment towards the boy or incompetency on their
part to take care of him; the boy's residence with the adoptive
family being part of the consideration for adoption (l).
An adopted son can claim maintenance from his father until
put into possession of his share of the ancestral estate (m).
(/) MS. 1766.
(g) Narasammal v. Balaramacharlu, 1 M. H. C. E., p. 420; Rayan Krisli-
namachariyar v. Kuppannayyangar, 1 M. H. C. E., p. 180; Srinivasa Ayyangar
V. Kuppan Ayyangar, 1 M. H. C. E., p. 180.
(h) T. M. M. Narraina Numhoodripad v. P. M. Trivicrama Numboodripad,
M. S. D. A. E. for 1855, p. 125.
(t) MS. 1677.
(k) Lakshmihai v. Shridhar Vasudev Takle, I. L. E. 3 Bom. 1.
{I) Lakshmihai v. Shridhar Vassudev, Bom. H. C. P. J. for 1878, p. 7;
S. C. I. L. E. 3 Bom. 1 ; Sheo Singh Rai v. Musst. Dakho et ah, 6 N. W. P. E.
382.
(m) Ayyavu Muppanar v. Niladatchi Ammal, 1 M. H. C. E., p. 46.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1027
" An adopted son's widow must be supported by her mother-
in-law, who has got possession of the deceased's vatan " (n).
The chaul and munj of the adoptive son should be performed by
the adopting widow (though but ten years old) (o).
The adoptive parents' authority, as we have seen (p), does not
extend to giving away their son in adoption.
I. 1. B. 2. 1. — Immediate Personal Eelations.
(b) Son the Active Subject.
" Adoption is . . . (1) to secure his (the adoptive father's)
happiness in the future state by the adopted son's or hie
descendants' performance of funeral rites (kreea), mourning
(sootak), and annual oblations of rice (sraddh sapindadan) ; and
(2) to preserve the adopting parents' good name in the present
world by the practice of alms-giving, feeding Brahmans,
pilgrimages and other Hindu virtues" (q).
" The forefathers of the adoptive mother only are also the
maternal grandsires of sons given, and the rest, for the rule
regarding the paternal is equally applicable to the maternal
grandsires (of adopted sons) " (r).
(n) MS. 1928. The widow of a predeceased adopted son has of course the
same right to maintenance as if he had been a son by birth. (Above, p. 239 as. ;
Dilraj Koonwar v. Sooltan Koonwar, N. W. P. S. D. A. R. for 1862, p. 240.)
(o) MS. 1648. See Steele, L. C. 187. Above, p. 891. The ceremonies ought
to be completed on the widow's attaining maturity.
(p) Above, p. 926.
(g) Steele, L. C, p. 42. In Ram Soonder Singh v. Surhanee Dasi, 22
C. W. R. 121, Mitter, J., says the prescribed repetition of the Sraddhas implies
a power of repeated adoption by the widow though a son should have attained
maturity and passed through all the Samskaras. There does not seem to be
any authority for this, but at any rate the duty would be that of the widow of
the son should there be one. (See above, p. 87, and sub-sec. I. 1. A, 2 of the
present section, p. 1012.)
(r) Uma Sankar Moitro v. Kali Komul Mozumdar et al., I. L. R. 6 Cal. 261.
According to Datt. Mim., VI., para. 60, the manes of the adoptive mother's
ancestors benefit by the Sraddhas celebrated by the adopted son. '* In the
double set of oblations, it is indispensably necessary that the son should perform
the Sraddha for the paternal line, not for the line of his maternal grandfather :
but it is simply reprehensible in one who performs the Sraddha for the paternal
ancestors, not to perform it also for the maternal grandfather and his
progenitors. Consequently, since the Sraddha may be performed without
1028 HINDU LAW. [BOOK lU.
" Though the adoption be not annulled, yet should the adoptee
not pertom his filial duties, he separates from his adoptive father,
receiving some share of the property " (s).
An adopted son succeeds to the adoptive father's property,
subject to the right of maintaining the widow (t).
" There being a born son and an adopted son, they are jointly
and severally responsible, according to their means, for the support
of their parents " {v).
" A daughter-in-law adopts a son, and as his guardian manages
the estate. The mother-in-law can claim maintenance from
her " (w).
A widow of an adoptive father being refused maintenance by
the adopted son sold part of the estate in her possession. The
Sastri said the adopted son could recover it only on payment of
the purchase money and interest (x).
I. 1. B. 2. 2. — Kelations Between the Parents and the Son
WITH Respect to Property.
(a) Between the Adoptive Father and Son.
An adopted son has all the rights of a son born (y).
noticing the maternal grandfather's line in a subordinate double set of oblations,
and the like, the Sraddha for the maternal ancestors is not requisite to the
completion of the obsequies performed in the dark fortnight of Aswina." (3oL
Dig., Book v., T. 273 Comm.'
(s) Steele, L. C, p. 185; above, p. 839. As to a second adoption on the
refusal or incapacity of the first adopted to fulfil his/ duties, see above, pp. 549,
651, 838, 845.
(t) Rungama v. Atchama, 4 M. I. A., p. 1; S. C. 7 C. W. R. 57 P. C. See
above, p. 241. " The adoptee is bound to provide the widow in necessaries."
Steele, L. C, p. 188.
(v) MS. 1842. (w) MS. 1831.
(x) MS. 16. See above, pp. 245, 605, 698; below, sub-sec. B. 2. 2 (b).
Provision may be made for a widow's maintenance before rejecting her. (See
above, p. 605.)
iy) Steele, L. C. 47; Maharajah Juggurnath Sahaie v. Musst. Mukhun
Kunwur, 3 C. W. R. C. R. 24; Teencowree Chatterjee v. Dinonath Banerjee^
3 C. W. R. C. R. 49 ; By. Kishenmunee v. Raj Oodwunt Singh, 3 C. S. D. A. R.
228; Srinivasa Ayyangar v. Kuppan Ayyangar, 1 M. H. C. R. 180; N. Chand-
vasekharudu v. iV. Bramhanna, 4 M. H. C. R. 270; R. Vyankatrav v. Jayavan-
trav, 4 Bom. H. C. R. A. C. J. 191; Trimhuk Bajee v. Narain Venaik, 3 Morris
19; Rayan Krishnamachariyar v. Kuppannayyangar, 1 M. H. C; R., p. 180;
Sree Narain Rai v. Bhya Jha, 2 C. S. D. A. S. 27.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1029
An interest vests in the adopted immediately on hie adoption {z),
though he be a minor, and he is entitled to the profits after his
adoption {a), as also to immovable property purchased with
money derived from ancestral estate, which property continued
to exist at his adoption (b).
" A man who has adopted cannot alienate immovable property
without good reason. With reason he may, especially what he
has himself acquired "(c). The older cases agree with this opinion,
as when the Judicial Committee ruled that by adoption a person
divests himself of his right to dispose of immovable property
without the consent of the son adopted (d). Adoption, however,
it has been ruled, is not a valuable consideration proceeding from
the boy adopted in such a sense as to bind the adoptive father
against an alienation of his self -acquired property (e). The adopted
stands in this respect on precisely the same footing as a son by
birth (/). The case might have been dealt with on the ground that
(z) Sudanund Mohapattur v. SoTJo Monee Debee, 8 C. W. K. 455 ; S. C.
11 C. W. E. 436; reversed, 20 C. W. E. 377, by the Judicial Committee on
the ground that the validity of the will questioned by the adopted son had been
adjudged in a previous suit by him.
(a) Sreemutty Deeno Moyee Dossee v. Doorga Pershad Mitter, 3 C. W. B.
Misc. 6.
(6) Sudanand v. Bonomalee, 6 C. W. E. 266.
(c) MS. 1726.
(d) Rungama v. Atchama, 4 M. I. A. 1 ; S. C. 7 C. W. E. P. C. 67. See
above, pp. 672, 205 ss.
(e) PursJiotam Shenvi v. Vasudev Shenvi, 8 Bom. H. C. E. 196 O. C. J.
(/) The case of Mohapattur v. Bonomallee (see above, p. 666) was relied on,
because as in it the first adopted son suing as heir did not dispute the father's
disposal of his self -acquired property, it was thought apparently that it could
not be disputed. But that was a Bengal case, and in Bengal the relations of
father and son as to property are different from what they are in Bombay (see
Dayabhaga, Chap. II., 8, 17, 18, 28—30; 2 Str. H. L., 437, 444; Mit., Chap. I.,
sec. I., para. 27; above, p. 618; 12 M. I. A., at p. 38, there referred to; 2 Str.
H. L. 449). Under the Mitakshara the son has a joint interest in the
immovable property acquired by the father. He must submit to his father's
dealings with such property on account of his subordination and the father's
freedom from control (self-government) as manager (see above, pp. 207, 601),
but this subjection cannot last beyond the father's life. The father's right is
one of joint ownership plus svatantrata, unshared control (see 2 Str. H. L.
443). On his death the son's right by survivorship makes him complete owner,
and the father's will cannot operate against him, although it would be effectual
against others, not co-owners, only successors. (See above, p. 551.) The right
to sell is not identical with the rigb\t to give, nor is the right to give identical
with the right to devise (see above, p. 214). This is manifest from what the
1030 HINDU LAW. [BOOK III.
where no more was engaged for, the adoption gave to the adopted
only the ordinary advantages of a son. Had a contract been made
or property settled on the son, there seems to be no doubt that
on the principle of the cases referred to in sec. VI. A. 6 and 7, his
becoming an adopted son would be a consideration (g) such as
would make the transaction binding.
The right of interdiction has been recognized by the Sastris as
acquired by adoption as in the following inst^ance — " An adopted
eon can claim from his father property that the father is making
away with in order to deprive the son of it (h), as an alienation
made in order to deprive a son or brother may be rescinded by the
State."
A Joshi having an adopted son, 15^ years old, executed a deed
of gift of part of his vatan to his daughter's children. This was
endorsed with an assent by the natural father of the adopted son.
Such signature was pronounced useless. But the adopted son was
pronounced answerable to make good a gift of part only of the
vatan (t).
' ' A gift of a house made by a Brahman to his mistress does not
enable her to dispose of it to the detriment of his subsequently
adopted son, though she may retain it for life if she behaves
becomingly to her master " {i.e. apparently the son) (k).
" An adopted son may claim a division of ancestral property
from his father, but not of his father's own acquisitions " (I).
Judicial Committee say in Lakshman Dada Naik's Case (I. L. R. 5 Bom., at
pp. 61, 62); and though the law of wills follows the analogy of the law of
gifts it need not go so far. It is plain that it does not ; and the power of a
father to devise his acquired lands away from his son cannot apparently be
rested on the recognized authorities (see Vyav. May., Chap. IV., sec. I.,
paras. 4, 5; Colebrooke in 2 Str. H. L. 435, 436). In the cost of Musst. Goolah
and Phool (above, sub-sec. A. 9), the Sastris and the Courts refused effect
to a will which went to deprive widows of their right of inheritance, though
undoubtedly the wives could not have interfered with their husband's dealings
during his life. Ellis at 2 Str. H. L. 428 expresses a similar opinion. Cole-
brooke differed only because he thought the power followed from wills ranking
as gifts. The right of a son is as co-owner, that of the wife altogether
dependent (see Narbadahai v. Mahadev Narayan, I, L. R. 5 Bom. 99).
ig) See Bhala Nahana v. Parbhu Hari, I. L. R. 2 Bom. 67.
{h) MS. 1735. (t) MS. 711. See above, p. 193.
(fe) MS. 712. See above, pp. 697, 698. The donor could by an explicit grant
give her a larger interest. See above, pp. 205, 279, and sec. VI. A. 6 of this
book.
(Z) MS. 1731. In answer to Q. 1704, it is said, he cannot claim a partition
(nature of property not specified).
S. VII. I.J CONSEQUENCES OF ADOPTION. 1031
" An assignment of a village for maintenance to an adopted son
cannot be revoked " (m).
An adopted son can sell his right, title, and interest in his share
of undivided family property {n).
" An adopted son's son can claim a share of the grandfather's
(former) property though his father be alive, unless the property
having been mortgaged or alienated the father has recovered
it" (o).
An adopted son becomes heir to the whole of the adoptive
father's property, and is excluded from inheritance in his own
family (p).
A son, adopted by a widow under her husband's authority,
supersedes all other heirs (q).
A son, adopted by a widow of a predeceased son, succeeds to
his grandfather's estate as well as to that of his own adoptive
father, whether the adoption took place in the grandfather's
lifetime or not (r). If the adoption was made with the consent
of the grandfather, his subsequent disposition or the birth of a
son to his daughter in wedlock will not invalidate the adoption (s).
(m) MS. 790. This was probably understood as a case of partition. See
above, pp. 648, 839.
(n) Rutoo bin Bapooji v. Pandoorangacharya, Bom. H. C. P. J. 1873, p. 176.
The son was tenant of the whole property, and his interest was sold in execution.
The purchaser was pronounced liable to the adoptive father for a moiety of the
rent, he having been put into possession of the whole. See above, p. 616.
(o) MS. 1736. See above, p. 665.
(p) Bhasker Buchajee v. Narro Ragoonath, Bom. Sel. Kep., p. 26; Duttnaraen
Singh v. Ajeet Singh et al, 1 C. S. D. A. R., p. 20; Gopeymohun Deb v. Raja
Ray Kissen, see East's Notes, Case 75 ; Ranee Bhuwanee Dibeh v. Ranee Sooruj
Munee, 1 C. S. D. A. R., p. 136; Srinath Serma v. Radhakaunt, 1 C. S.
D. A. R., p. 15; Appaniengar v. Alemaloo Ammal, M. S. D. A. R, for 1858,
p. 6; Raje Vyankatrav v. Jayavantrav, 4 Bom. H. C. R. A. C. J., p. 191.
iq) Veerapermal Pillay v. Narain Pillay, 1 Str. 91; Nundkomar Rai v.
Rajindernaraen, 1 C. S. D. A. R., p. 261. " Such child may be provided for as
a person whom the law recognizes as in existence at the death of the testator,
or to whom by way of exception, not by way of rule, it gives the capacity of
inheriting or otherwise taking from the testator as if he had existed at the time
of the testator's death, having been actually begotten by him." Willes, J.,
in the Tagore Case, L. R. Supp. I. A., at p. 67. See above, p. 879.
(t) Gourbullab v. Juggernotpersaud Mitter, Macn. Con. H. L. 217.
(s) Ramkishen Surkheyl v. Musst. Sri Mutee Dibea et al, 3 C. S. D. A. R.
367. The assent of the grandfather was necessary on the principles stated in
sec. III. B. 3. 33.
1032 HINDU LAW. [BOOK III.
An adopted son takes by inheritance and not by devise (t) in
the case of his adoption by a widow under an instrument providing
for the boy only as an adopted son and successor.
An adopted son, though separated from his adoptive father,
succeeds to the residue of the latter 's estate, undisposed of by
him by gift or will, in preference to the widow, in case he dies
leaving no unseparated son surviving him (v).
On an adopted son's dying without issue his adoptive father's
property goes, it was said, to his natural heirs (w). This would
depend on whether the son died before or after the father.
In a suit by an adopted son to set aside a will, the will was held
of no effect as a valid devise of property. At the father's death the
right of survivorship was in conflict with the right by devise. Then
the former, being the prior title, took precedence {x).
As an adopted son has no more rights than a natural son would
have, so the adopter is at liberty to dispose by will of immovable
property acquired by him, to any one he pleases (y).
If an elder adopted son takes the whole of the ancestral
property, which the father could not dispose of without his consent,
he must give up for the benefit of the second adopted son the
whole property included in the devise, to the disposition of which
his consent was not necessary (z).
A Hindu cannot disinherit a duly adopted son, even for bad
character, nor can he adopt another (a). It is only in an extreme
(t) Musst. Bhoohum Moyee Dehia v. Ram Kishore Acharj Chowdhry et al.,
10 M. I. A., p. 279, 309; S. C. 3 C. W. R. P. C. 15; Beng. S. D. A. R. for
1866, p. 122. See above, sec. VI. A. 6.
(tj) Balkrishna Trimhack v. Savitrihai, I. L. R. 3 Bom. 64. See above,
p. 342.
(w) Sahrahmaniya Mudali v. Parvati Ammal, M. S. D. A. R. for 1869,-
p. 266.
(x) Vitla Butten v. Yamenamma, 8 M. H. C. R. 6.
(y) Purushotam v. Vasudev, 8 Bom. H. C. R. 196 0. C. J. See above,
pp. 205 88., 596, 706. Rao Balwunt Singh v. Rani Kishori, L. R. 25 I. A. 54;
Raja Venkata Surya Mahipati v. Court of Wards, L. R. 26 I. A. 83.
(z) Rungama v. Atchama, 4 M. I. A. 1; S. C. 7 C. W. R. P. C. 67. The
right of the second adopted son rested wholly on the devise, his adoption being
invalid.
(a) Daee v. Motee, 1 Borr. 84. "It is declared that, if culpable, even a son
of the body does not take the heritage, hence vicious sons, whether begotten in
lawful wedlock or the like, or adopted as sons given and the rest, are excluded
from participation; sons so adopted, being void of good qualities, shall have a
maintenance : but such sons, being virtuous, shall take the inheritance of a
father, or of his kinsman," Col. Dig., Book V., T. 278 Comm. See above.
8. VII. I.] CONSEQUENCES OF ADOPTION. 1033
case of violation of duty that a son's rights are lost, or that a
father can disinherit an adopted son. Both stand on the same
footing (b).
Kenunciation by an adopted son of his right in his adoptive
father's property, though permissible, does not free him from
adoption. If he resigns the right, the adoptive mother succeeds
to the separate property of her husband (c).
An adopted son may for money relinquish his share in the
adoptive father's family. This puts him into the position of a
separated son. It does not disinherit him. If he be disinherited
for adequate cause his eon takes his place as heir (d).
On the death of an adopted son before that of the father his
joint proprietary right, like that of the eon by birth, is of course
absorbed in that of the father (e), and his widow, should he leave
one, is entitled to maintenance in the family of adoption (/).
I. 1. B. 2. 2. {h). — Between the Adoptive Mother and Son.
" As soon as a son is adopted by a widow, he succeeds to her
husband's estate. Her independent rights and those of her
mother-in-law forthwith cease " (g).
pp. 639, 549, 561. A person cannot disinherit his son by will, Gopeymohun Deb
V. R. Raykissen, East's Notes, Case 75; Pranvulluhh Gokul v. Deocristen
Tooljaram, Bom. Sel. Bep. 4.
(b) Sadanund Mohaputtee v. Bonomallee, C. S. D. A. B. 1863, p. 205. See
above, p. 1011. In Khandesh, it was stated in answer to Steele's inquiries, that
exclusion from caste does not cause a forfeiture of property or of the right of
inheritance. Steele, L. C. 152. See above, p. 816. But the holder of any
religious of&ce peculiar to Hindus naturally forfeits it by change of religion.
Jbid. Answer from Satara.
(c) Ruvee Bhudr v. Roopshunker, 2 Borr. 656 ; Mahader Ganu v. Rayaji Sidu,
I. Ij. B. 19 Bom. 239. On his resigning, the right descends to the next in
succession. This might be his son, who would take in preference to the mother.
(d) Balknshna v. Sabitnhai, I. L. B. 3 Bom. 54. See above, p. 354.
(e) Udaram Sitaram v. Ranu Panduji, 11 Bom. H. C. B. 76, 86.
(/) 2 Str. H. L. 235. See above, pp. 256 ss., 694.
ig) MS. 1716. See Steele, L. C. 48, 49. "Presuming the property here
spoken of as the woman's to have been what devolved upon her by the death
of her husband, and not to have been her proper stridhana, it ceased to be hers
at the moment of a valid adoption made by her of a son to her husband and
herself ; in the same manner as property coming into the hands of a pregnant
widow by the same means cannot be used by her as her own after the birth
of a son. An adopted child is in most respects precisely similar to a posthumous
1034 HINDU LAW. [BOOK III,
" The possession of authority to adopt a son by a widow in
Bengal does not destroy or supersede her personal rights as widow,
which continue until the adoption is actually made. . . .
The property is in the widow from the death of the husband
until the power of adoption is exercised. ... It is only an
alienation by the widow improper as against the subsequent heirs
generally, that the adopted son can get rescinded " (h). The
authorization in fact is as if non-existent until it is acted on by
the widow (i).
An adopted son becomes son of both father and mother, and
performs funeral rites to both (k). He is heir to the adoptive
father, and, in the absence of a daughter, to the mother's,
stridhana (l). " In the lower castes a partition sometimes occurs,
but the adoptee is heir to his adoptive mother, and generally
manager during her life " (m).
Adoption by a widow in Bengal, under her husband's permission,
deprives her of her widow's estate (n), and entitles her to
maintenance (o). The same is the result even when the adoption
is valid without the husband's permission, as amongst the Agarvali
Jains (p). It follows from this that a Hindu widow, after adopting
a son, cannot mortgage the family property as her own, nor can
such a transaction be validated by the son's ratification (q).
son. From the moment of the adoption taking effect, the child became heir
of the widow's husband; and the widow could have no other authority but that
of mother and guardian." Colebrooke in 2 Str. H. L. 127.
(h) Bamundoss Hooker jea v. Musst. Tarinee, 7 M. I. A. 178, 180, 185, 206.
(t) Uma Sunduri Dahee v. Sourobinee Dahee, I. L. E. 7 Cal. 288. See above ^
p. 813.
(k) Teencowree Chatterjee v. Dinonath Banerjee, 3 C. W. K. 49. *' An
adopted son," the judgment says, "has all the rights and privileges of a son
born." Datt. Mim., sec. I., para. 22. " Women have legally no right to'
adopt for the transmission even of their separate property but . . . such a
custom may obtain in the caste." Ellis in 2 Str. H. L. 128.
(0 Above, p. 480. Tincowri v. Denonath, 3 W. R. 49; Pudma Coomari Debt
V. Court of Wards, L. E. 8 I. A. 229.
(w) Steele, L. C, p. 186.
(n) Nundkomar Rat v. Rajindurnaraen, 1 C. S. D. A. E. 261 ; Musst.
Solukhna v. Ramdolal Pande et al., 1 C. S. D. A. E. 324; Burma Samoodhany
Ummal v. Coomara Venkatachella Reddyar, M. S. D. A. E. for 1852, p. Ill;
Radhabai v. Damodar Krishnarav, Bom. H. C. P. J. for 1878, p. 9; Mondakini
V. Adinath, I. L E. 18 Cal. 69.
(o) Musst. Rutna Dobain v. Purladh Dobey, 7 C. W. E. 450.
(p) Sheo Singh Rai v. Musst. Dakho, L. E. 5 I. A. 87.
(q) Siddheshvar v. Ramchandrarao , I. L. E. 6 Bom. 463.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1035
An adoption works retrospectively and relates back to the deatli
of the husband of the adoptive mother. It invalidat^es a gift or
sale, unless it was effected under inevitable necessity, and entitUs
the adopted son to succeed to his estate as the same stood at the
death of his adoptive father (r). In Rajah Vyankatrao's Case the
adoption was made by the widow about seventy years after her
husband's death (s). It follows from the widow's limited power
that, as the Judicial Committee said, the rights of an adopted son
are not prejudiced by any unauthorized alienation by the widow
which precedes the adoption which she makes (and though gifts
improperly made to procure assent might be powerful evidence to
show no adoption needed, they do not in themselves go to the root
of the legality of an adoption) (t). In the case, however, of an
adopted son succeeding collaterally, his right, it is said, vests only
from the adoption. At least he cannot retrospectively take away
what passed to another collat-eral through his own non-existence,
when the succession opened (v).
An adopted son, moreover, though he is competent to question
his mother's acts during his minority or before his adoption,
cannot question a sale effected by her with consent of all the legal
heirs then existing and ratified by the Civil Courts (w).
A woman's religious gift of a house as her own which belonged
to the family estate was pronounced invalid as against the adopted
son. " There is no merit in a Krishnarpana made without the
consent of the son " (x).
First there was permission given to adopt, then a sale by a Court
of the property, then after twelve years there was actual adoption
(r) Rajah Vyankatrav v. Jayavantrav, 4 Bom. H. C. K. A. C. J. 191; Nathaji
V. Han, 8 Bom. H. C. R. A. C. J. 67; Ranee Kishenmunee v. Rajah Oodwunt
Singh, 3 C. S. D. A. R. 228; Bamundoss Mookerjea v. Musst. Tarinee, 7
M. I. A. 169.
(s) See above, sec. III. B. 3. 23; 3. 34.
(t) The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 M. I. A.
443.
(v) Bamundoss Mookerjea v. Musst. Tarinee Dihia, Beng. S. D. A. R. for
1850, p. 533; S. C. 7 M. I. A. 169; Musst. Bhoohun Moyee Dehia v. Ramkishore
Acharj, 10 M. I. A. 279 ; S. C. 3 C. W. E. 16 P. C. ; Beng. S. D. A. R. for
1856, p 122; Bhuhaneswari Debi v. Nilkomul Lahiri, L. R. 12 I. A. 137. On
fchis subject see above, sec. III. B. 3. 23 ; 3. 25 ; 3. 34 ; 3. 35 ; and below, B. 2. 5.
(w) Rajkristo Roy v. Kishoree Mohun Mojoomdar, 3 C. W. R. 14; Pilu y.
Bahaji, 34 Bom. 165 ; Vinayak v. Govind, I. L. R. 25 Bom. 129; Bijrangi Singh
V. Manokranika Bakhsh, I. L. R. 30 All. 1. See above, p. 349.
(x) MS. 714. For Krishnarpana, see pp. 91, 449.
1036 HINDU LAW. [BOOK III.
under the permission. It was held, that what was sold was not
merely the widow's interest, as the proceeds of the sale were
applied to debts for which the property was liable. The purchaser
was held not subject to eviction by the adopted son, after the
death of the widow, who had enjoyed a life estate under the deed
of permission to adopt (y).
" Under pressure of absolute necessity only an adoptive mother,
living apart from her son, may sell the immovable family
estate " {z).
A Sudra widow after adopting a son bought a field in her own
name. It was held that she could give this to her daughter against
the wish of her daughter-in-law, though she could not alienate
the common property (a). As regards the patrimony the case
would be different; the adopted son transmits to his widow a
succession which excludes his mother (b).
In the event of successive adoptions the relations of the parties
are determined by the following decisions. In the first it was
said —
" The first adopted son became his father's heir. On the death
of that son the widow became the heir, not of her late husband,
but of the adopted son " (c).
Through adoption a widow, it was said, divests her own estate
only, and by succeeding to her son as heir, she does not lose the
right to exercise the power of adoption (d). The correctness of
this depends on the principles considered in Sec. III. (e). She
would, it seems, lose the right by the adopted son's leaving a
widow (/). In other cases of adoption by a mother it has been
said that a widow who has succeeded to her son, and who after-
(y) Rajah Dehendro Narain Roy v. Coomar Chundernath Roy, 20 C. W. E.
30 C. K. (P. C). It may be questioned whether, on strict principle, the
permission could thus cut down the adopted son's interest. See above, sec. VI.
A. 6. As to the widow's authority, see pp. 87, 349.
(z) MS. 14. This implies that the son is inaccessible, or else when applied
to refuses sustenance. See above, pp. 605, 698. But the right is questionable
in any case. She should sue the son. See pp. 238 ss., 605.
(a) MS. 1577. See above, pp. 298, 299, 475.
(h) Vencata Soohamal v. Vencumal, 1 Mad. S. D. A. R. 210.
(c) Privy Council in Ramasawmy Aiyan v. Venkataramaiyan, L. R. 6 1. A.,
p. 208.
(d) Bykant Monee Roy v. Kisto Soonderee Roy, 7 C. W. R. 392.
(e) Sub-sees. B. 3. 23 ; 3. 25 ; 3. 35.
(/) See Musst. Bhoohun Moyee Dehia v. Ram Kishore Acharj Chowdhry, 10
M. I. A., at p. 310. Above, pp. 789, 1013.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1037
wards adopts a son, thereby divests herself of the estate {g).
Kegarded as an unseparated brother of the deceased the adopted
son would take precedence of the mother. As a separated brother
he would not; but in adopting a son the widow must perhaps be
considered as replacing the one deceased with all his rights. The
transaction is so anomalous {h) that any determination of these
must be in a great measure arbitrary. In similar circumstances the
Judicial Committee hesitated to give a final decision, saying only
" whether by the act of adopting another son, she in point of law
divested herself of that estate in favour of the second son, may
be a question of some nicety, on which their Lordships give no
opinion " (i). In Kannepalli Suryanarayan v. Pucha Venkata (k)
it has been held that a widow on the death of the first adopted son
can validly adopt a second son if the power given to her to adopt
was without any specific limitation. It follows that the rights and
the duties of such a son must be those of an adopted son. The
case of Venkappa v. Jivaji Krishna (l) is an authority for the
proposition that a second son after the death of the first adopted
son may be adopted.
A second adoption does not nullify an intermediate alienation
by a widow after the death of the first adopted son (w).
A son adopted by the widow of a Hindu is legal representative of
the deceased, and can maintain a suit under Act XIII. of 1855 for
the benefit of persons entitled to compensation under the Act;
but he is not entitled to any portion of the compensation awarded.
Whether he would have been if adopted by the deceased himself
is a question (ii).
A widow cannot sue as representative of her husband so long as
ig) Vellanki V. Krishna v. Venkata Rama Lakshmi, I. L. R. 1 Mad. 174;
Jamnahai v. Raychand, I. L. R. 7 Bom. 225.
(h) See above, p. 904.
(i) Ramasawmy Aryan v. Vencataramaiyan, L. R. 6 I. A., at p. 208.
(k) L. R. 33 I. A. 145 ; Lakshmibai v. Rajaji, I. L. R. 22 Bom. 996.
(0 I. L. R. 25 Bom. 306.
(m) Gohindo Nath Roy v. Ram Kanay, 24 C. W. R. 183.
The widow succeeded the first adopted son, who seems to have died in child-
hood. Her power of alienation would then be governed by the estate she took.
See above, pp. 102, 314, 349, 422, 424. She would not be allowed to make a
second adoption a means of fraud. See above, p. 348 ss. Supposing the
deceased son had sold or incumbered without reason, the anomaly of a second
adoption acting retrospectively would be very manifest.
(n) Vinayak Raghunath v. G. I. P. R. Co., 7 Bom. H. C. R. 0. C. J. 113.
1038 HINDU LAW. [BOOK III.
her adopted son is alive (o), nor can she prefer an appeal. A mere
disclaimer by eons, and therefore by an adopted son, in the absence
of proof of the widow's being herself the next reversioner after
the sons (p) will not enable her to sue as owner. There must be
a distinct assignment.
Where, pending a suit for partition by a widow in an undivided
family, she adopts, though the suit is prosecuted in her own name,
she is considered as guardian and trustee and accountable to her
son for the profits of the property decreed (q).
An adoptive son like a real son will not, where there are
dissensions, and a probability of waste, be allowed to take the
estate out of his adoptive mother's hands without providing for
her maintenance (r). Nor can he, by selling the family dwelling,
deprive her of her right to residence (s).
As to the property more especially regarded as stridhana the
relations are thus stated : —
The adoptive mother " retains, during life, the right over her
own property, but the adoptee is heir to his adoptive mother " (t).
" A son adopted by a widow," the Sastri said, even " without her
deceased husband's permission, inherits her property " (v).
The son adopted by a daughter-in-law after an adoption by her
father-in-law succeeds to her and her husband's property (w).
The property taken in inheritance by a daughter is stridhana
according to the Mitakshara (x). Hence an adopted son succeeds
(o) Ram Kannye Gossarnee v. Meernomoyee Dossee, 2 C. W. E. 49; Jannohee
V. Dwarkanath, 7 C. W. E. 455; Narsava alias Gangava v. Ramangavda,
A. D. 1868.
The widow must proceed in the adopted son's name after obtaining a certifi-
cate of administration under Act XX. of 1864 unless the property is of a trivial
value, falling under sec. 2 of the Act.
(p) Ram Kannye Gossamee v. Meernomoyee Dossee, 2 C. W. E. 49; Jannohee
V. Dwarkanath, 7 C. W. E. 455.
(q) Dhurm Das v. Musst. Shama Soondri, 3 M. I. A. 229; S. C. 6 C. W. E.
P. C. 43. In Bombay she could not claim a partition. See above, p. 627.
(r) Jamnabai v. Raychand, I. L. E. 7 Bom. 226. See above, pp. 256, 605,
and as to the circumstances justifying a demand on the mother's part for a
separate assignment of property, Venkatammal v. Andyappa, I. L. E. 6 Mad.
130.
(s) See above, pp. 674, 675, 751.
it) Steele, L. C, p. 188.
(v) MS. 1710. This is not true in the Bombay Presidency, if without per-
mission means contrary to his wish; see above, pp. 970 ss. ; 2 Str. H. L. 91.
(w) MS. 1666. See above, pp. 353, 845.
(x) Above, pp. 138, 139, 319.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1039
to the property which his adoptive mother inherited from her
father (y), but not as first heir. An adopted son succeeds to his
mother 8 stridhana in the absence of daughters {z).
As to the reciprocal suc^jession to the son the decisions are: —
A widow succeeds to her adopted son as to her son by birth (a),
and takes a Hfe-interest upon the death of the adopted son under
age (h).
I. 1. B. 2. 2. (c). — Kelations Between Adoptive Step-Mother
AND Son.
" The adopted son succeeds to all his step-mothers " (c).
Where a widow had adopted a son under authority of her
husband, on the death of the widow and the boy, the other
co-widow was allowed to succeed to a moiety of the estate in her
own right, not in that of a son adopted by her with due authority
from her husband (d). This decision is questioned, and it is
obvious the widow had no right except to maintenance. The boy
adopted by her, if validly adopted, was entitled to the whole
estate (e).
On the death of one, adopted as son of one of two co-widows,
the property does not descend to the other widow, but, it was
said, to the next legal heir who was nephew of the original
iy) Sham Kuar v. Gaya Din, I. L. E. 1 All. 255. See, too, Col. Dig.,
Book v., TT. 273—275, Comm.
(z) Teencowree Ghatterjee v. Dinonath Banerjee, 3 jC. W. E. , p. 49. See
above, pp. 140, 308.
(a) 2 Str. H. L. 129.
(5) SoonduT Koomaree v. G. Pershad Tewarree, 7 M. I. A. 54; S. C.
4 C. W. E. P. C. 116. See above, pp. 102, 422.
(c) MS. 1658. See above, p. 489. " If a son be adopted by a man married
to two wives, he would have two maternal grandfathers, and would claim as
maternal ancestry both their lines of forefathers. This seeming difficulty is
thus reconciled : although there be two sets of maternal ancestors, they should be
jointly considered as manes of ancestors, and they should be thus named in
performing the Sraddha, ' Such a one, maternal grandfather, sprung from such
a primitive stock ! to thee (to each of you) this funeral cake is offered,' and so
forth, as is done by the son of the wife considered as a son of two fathers. Thus
some reconcile the difficulty." Col. Dig., Book V., T. 273, Comm.
(d) Narainee Diheh v. Hirkishor Rat, 1 C. S. D. A. E. 39.
(e) Mondakini v. Adinath, I. L. E. 18 Cal. 69; Bai Motivahu v. Bai
Mamubai, L. E. 24 I. A. 93.
1040 HINDU LAW. [BOOK IH,
proprietor or adoptive father (/). The succession being to the son,
his step-mother's position would be determined by the rules given
above, pp. 102, 441 ss.
A son adopted by one wife may succeed to the etridhana of
another co-wife (g) in Bengal. In another case in that province
the reciprocal right was denied. According to the Mitakshara, it
was said, a step-mother cannot succeed to the estate of her step-
son, or a step-grandmother to the estate of her step-grandson (h).
According to the principles admitted in Lullobhoy v. Cassibai (i),
the step-mother ought to come next in succession to the father's
mother, and the analogy of the law of partition is in her favour
(above, pp. 605, 606, 627).
The importance of the right to adopt as between two or more
widows becomes evident when it is borne in mind that the one
taking the place of mother succeeds first to her son on his death
without a child or widow (fe). The step-mother is comparatively a
remote successor. H. H. Wilson (i) discusses in rather caustic
terms a Bengal case of a contest amongst three widows (m). The
youngest as mother of a posthumous son, who died, was entitled
as his or as her husband's heir. The husband, however, had left
directions for an adoption by his eldest or* his youngest widow with
the assent of the middle one. No concurrence proving possible,
the master was ordered to report on a fit boy. He reported in
favour of one named by the second widow, and son of her father *&
brother. This relation led the Court to order his adoption, not by
the second widow but by the eldest. Thus the widow who had
resisted his adoption became his mother and heir, while the one
who had proposed him and the one in whom the estate had vested
were reduced to the position of step-mothers. The property having
been mostly ancestral, the learned author contends that the father
could not by his will make a valid disposition which would affect
the complete title of his posthumous son, and the estate taken by
that son's mother as his heir {mm). This, while it goes further,
(/) Kasheeshuree Debia v. Greesh Chunder, C. W. K. Sp. No. 71.
ig) Teencowree Chatter jee v. Dinonath Banerjee, 3 C. W. R., p. 49.
(h) Lola Joti Lai v. Musst. Durani Kower, B. L. R. F. B. 67. See above^
p. 443.
(t) L. R. 7 I. A. 212.
(fe) Annapurni v. Forbes, L. R. 26 I. A. 246
(l) Works, vol. v., p. 58 ss.
(m) Sir F. Macn. Cons, on H. L. 168.
(mm) H. H. Wilson, Works, pp. 61, 62.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1041
agrees in principle with the decisions of the Judicial Committee (n)
against the capacity of a mother-in-law to adopt under a power
so as to divest her daughter-in-law of the estate taken by the latter
in succession to her husband.
I. 1. B. 2. 2. (d). — Eelations between Adopted Son and
Grandparents.
In Siddappa v. Ningangavda (o) it was held that the widow of
a predeceased son was competent to make a valid adoption with
the contemporaneous consent of her mother-in-law in whom the
estate of the last full owner had vested as heir.
I. 1. B. 2. 3. — Kelations with Kespect to Obligations.
(a) Between the Father (and Grandfather) and the Son as to
Debts and Claims.
" An adopted son like another is responsible independently of
assets received for the debt of the grandfather by adoption though
not incurred for the family " (p). Jagannatha agrees with the
Sastri. The adopted son's liability for his father's debts, he says,
like that of the son by birth, arises at the father's death, and is
independent of assets (q). A previous partition even only throws
the burden first upon those sons who remained in union with the
father.
An adopted son is liable for his father's debts to the extent of
the inheritance received by him, and if he waives or does not obtain
the inheritance, his self -acquisition is not liable for the debts (r).
A son adopted in pursuance of an unoomoti puttro, some time
after the death of his adoptive father, does not require, and is not
entitled to obtain, a certificate under Act XXVII. of 1860, to
(n) Bhoohun Moyee's Case, 10 M. I. A. 278; Pudma Coomari Debi v. The
Court of Wards, L. R 8 1. A. 229, 245 ; Venkappa v. Jivaji Krishna, I. L. R.
25 Bom. 306.
(o) I. L. R. 38 Bom. 724 ; Payapa v. Appamma, I. L. R. 23 Bom. 327.
(p) MS. 979. See above, pp. 75, 160.
(q) See Col. Dig., Book I., TT. 167—170, Comm.
(r) Jummal Alt v. Tirbhee Lall Doss, 12 C. W. R. 41. The adoption was
that of a brother, but it was not a point in issue.
H.L. 66
1042 HINDU LAW. [BOOK III.
enable him to collect debts in respect of the properties left by his
adoptive father, which accrued due while they were under the
management of his adoptive mother. The estate of the adoptive
father, if the adoption is a good one, vests" immediately on the
adoption in the adopted son, and debts to it, if they accrued due
after the death of the adoptive father, are debts recoverable by
the adopted son in his own right, and not as representative of his
adoptive father (s).
I. 1. B. 2. 3. (h). — Between the Adoptive Mother and Son.
A mortgage [before adoption] by a widow to pay off her
husband's debts was upheld as against a boy subsequently
adopted (t). On a similar ground of benefit received by the son,
a bond executed by a widow in possession was held binding on
the adopted son of the last zamindar, the bond having been given
for debts which the adopted son as zamindar had by his acts
admitted his liability to pay (v).
The widow's authority as manager makes the son liable for
necessary debts. " A son adopted by a widow is responsible for
a debt incurred by her for the family during his minority " («,').
But he has once or twice been thought answerable merely as son
for his mother. Thus an adopted son was pronounced liable for
the mother's debt incurred for purposes not ascertained, he having
taken her property, and as generally answerable apart from that
for parents' debts (x).
In one case the High Court of Bengal seems to have thought
that a second adopted son was liable in his estate for all debts,
without distinction, incurred by the mother between the death
of the first and the adoption of the second son (y). For this the
case of Bhoohun Moyee Dehia {z) is referred to, but it does not
(s) Narain Mai v. Kooer Narain Mytee, I. L. E. 6 Cal. 251.
(t) Satra Khumaji v. Tatia Hanmantrav, Bom. H. C. P. J. 1878, p. 121.
(v) Chetty Colum Coomara V encatachella v. Rajah Rungasawmy Iyengar,
4 C. W. E. P. C. 71. The Judicial Committee say — " Unless those moneys so
advanced to the widow personally were advanced to pay subsisting charges on
the estate or otherwise, for its advantage, they, of course, could constitute no
charge on the zemindary."
{w) MS. 1678.
{x) MS. 943. See above, pp. 164, 165.
iy) Gohindo Nath Roy v. Ram Kanay Chowdhry, 24 C. W. E. 183.
(«) 10 M. I. A. 279.
8. VII. I.] CONSEQUENCES OF ADOPTION. 1043
seem to deal with any such point. It views with some doubt the
possibihty of an adoption where a previous son had reached an
age to fulfil the ceremonial duties (a), but nothing as to the
liabilities arising should a second adoption be admitted (h).
It was said to be a nice question : What is the effect of admission
of the adopter as binding on a subsequently adopted person (c)?
It would seem that such admissions made by a widow would be
subject to objection if prejudicial to the adopted son or the
estate {d).
During the minority of a boy, adopted by a widow, she
squandered her husband's property, contracted debts, and refused
to render accounts to her son. It was held that as the son was
liable to pay the bond fide debts of the mother, she was liable to
account to him for her management, or to pay the damages
claimed (e).
An adopted son's estate is not liable for personal debts of the
adoptive mother (/), but a sale of part by the adoptive mother, a
widow, to recoup co-sharers' payments of Government land
revenue, was upheld as a lawful exercise of discretion by a
guardian.
The adoptive mother is the legal representative of her son, and
entitled to a certificate under Act XXVII. of 1860 (g).
I. 1. B. 2. 4. — Kelations between Son by Adoption and
Children by Birth.
(a) Immediate Personal Eelations.
The adopted son gives place to a son by birth, should there be
one in the performance of the kriya and the sraddhas. The
(o) See above, sec. III. B. 3. 25.
(b) It is an additional argument against an adoption by a mother after the
death of an adult son, that the hazard to which creditors would be exposed would
greatly impede her good management of the estate.
(c) Brojendro Coomar Roy v. The Chairman of the Dacca Municipality,
20 C. W. K. 223.
(d) The adopted son takes by a right paramount to that of the widow and
will be bound by her acts and admissions only so far as these can be ascribed to
her as manager or agent. See above, p. 349.
(e) Nurhur Shamrao v. Yeshodabaee, Bellasis, Eep. 65.
(/) Roopmonjooree v. Ramlall Sirkar, 1 C. W. K., p. 145.
ig) Sreemutty Deeno Moyee Dossee v. Doorga Pershad Milter, 3 C. W. R.
Misc. 6.
1044 HINDU LAW. [BOOK III,
adopted son takes a minor part in some celebrations which it is
needless to give in detail (h).
As the adopted son becomes a member of the adoptive family,
the restrictions on marriage between him and female members of
the family may be deemed the same as if he had been bom into
the place he occupies. This at least is so to three degrees from
the stem, so that a woman may not be married to her first cousin
by adoption (i). Whether the prohibitions extend further is
uncertain; questions on the subject are very infrequent owing to
the general prejudice against the marriage of near relatives.
Should an adopted son or his widow desire to adopt, the same
grounds of preference and the same general principles would
apply as if he had been born in the family of adoption (fe).
(b) Kelations with Kespect to Property.
The relative rights of children by birth and by adoption in the
matter of- inheritance to the family estate have been discussed
in The Digest of Vyavasthas (I). In relation to the adoptive
mother's property as well to that of the father, the adoptive son
takes a right (m) subject by analogy to a partial defeasance in
competition with a son by birth.
" The share of an adopted son is one-fourth of the share of a
son born to the adoptive father after the adoption " (n).
The heirs of a deceased Hindu in Shahabad being a real and
an adopted son, the adopted son takes one-fourth, and the real
son three-fourths of his property (o).
" If after the adoption of a boy, a son be legally begotten and
(h) See Datt. Chand, sec. II.
(i) See above, pp. 837, 838.
(k) See sec. III. and sec. IV.
(l) Above, pp. 351, 354 ss.
(w) Above, p. 480.
(n) Ayyavu Muppanar v, Niladatchi Ammal et al., 1 M. H. C. K,, p. 46;
Giriapa v. Ningapa, I. L. R. 17 Bom. 100; Ruklal v. Amrushet, I. L. R. 16
Bom. 347. As to the proportion of the adopted son see Col. Dig., Book V.,
T. 301, Comra. ; above, pp. 347, 354, 355. The begotten son cuts down the
adopted to one-fourth according to Vasishtha XV. 9. In Bengal the ratio is
one-third. Tag, Lee. 1880, p. 539. In the Punjab he takes equally. Oust. Law^
n. 168.
(o) Preag Singh v. Ajoodya Singh, 4 C. S. D. A. R. 96.
S. VII. I.] CONSEQUENCES -OF ADOPTION. 1045
born in marriage, the latter will inherit three-fourths of the father's
property, the former one -fourth. The Kaustubh gives the adoptee
one-third or even one-half " (p).
" After the adoption of a son, one is born to the adopter. The
latter succeeds to his father's watan " (q). The precedence of
the legitimate son by birth over the son by adoption is secured by
several texts (r).
The Dattaka Chandrika, which says that the illegitimate son
of a Sudra in competition with any heir down to the daughter's
son takes but half a share (s), gives to the adopted son of a Sudra
an equal share in a partition made during the father's life, and
half a share in a partition after his death (t).
A woman's illegitimate ' son, it was said, takes nothing by
inheritance from her in competition with her adopted son. Even
her conveyance of her property to the former was pronounced
invalid as against the heritable right of the latter [v). This could
hardly be maintained unless the property was that of the deceased
husband; of her separate estate the widow could dispose (iv).
In one case an adoption had been contested. The adopted son
took the estate and then died. It was sought to exclude from
(p) Steele, L. C, p. 47. "In some places, the two boys (the begotten and
adopted) share all property equally; in others, the former takes two-thirds; in
others, three-fourths; in others, the father, on the birth of his begotten son,
gives the adoptee a present according to his ability, and separates him from the
family, and in consequence he takes no share; in others, the adoptee obtains
nothing without a complaint to the Sirkar. The former is entitled to manage-
ment of hereditary property, and if an Enamdar or Wuttundar to the Dastkhat
(right of signature), Sikka (seal), Naonagar (mark, or signature of a Patel), and
other privileges of eldership." Steele, L. C, pp. 186, 187. See above, pp. 65,
678.
(g) MS. 1739. The watan is regarded as going by preference to the head of
the family, see above, pp. 65, 180, 676, 836; Steele, L. C. 218, 229; and as an
impartible estate, so far as it supports the office, see above, pp. 176, 676;
PuTshotam v. Mudakangavda, Bom. H. C. P. J. 1883, p. 228.
(r) See Datt. Mim. IV. 26.
(s) See above, pp. 79, 712.
(t) Sec. v. 30. As a Sudra father may give to his illegitimate son an equal
share with his legitimate sons (see above, p. 708), it seems to follow that he
should be able to do as much for his adopted son, though this is not provided for
in the sacred writings, which do not indeed contemplate adoption by Sudras.
Strange says, that " among Sudras ... the after-born son and the adopted
share equally the parental estate." 1 Str. H. L. 99.
(v) 2 Str. H. L. 110.
(w) Above, pp. 301, 319, 352, 353, 656; 2 Str. H. L. 127.
1046 HINDU LAW. [BOOK III.
succession the son of him who had formerly denied the adoption ;
but the Court said: — " DeendiaVs denial [formerly] of Munnoo's
adoption de jure, cannot, therefore, estop his son from claiming
the right of succession to Munnoo's property unquestionably
acquired by him de facto by adoption and by no other title " (x).
A sister succeeds to the brother by adoption as to one by
birth (y).
Kelations between the Adopted Son and Eemoter
Connexions by Blood.
I. 1. B. 2. 5. — Of the Adopted Father.
The adopted son becomes impure through deaths and births in
the family of adoption, but for a shorter time than a son by
birth (z). The son adopted into a united family becomes a
participator in the family sacra celebrated by the head of the
family (a). In the event of a partition after his adoption the sacra
becomes dispersed, and he thenceforth offers sacrifices separately.
If his father, being separated, had sacra of his own, the adopted
son will naturally continue them, as even in a united family there
are some services to the father's manes which devolve necessarily
on the son. But if a member of an undivided family having no
separate sacred fire of his own has died sonless, and then a
partition has taken place causing a dispersion of the general family
sacra amongst the parceners (b), the son afterwards adopted by
the widow has no share in these. He honours his adoptive father's
spirit, but cannot draw back the common sacrifices (c). The
connexion of the estate with the sacra makes this consideration
important for the law of property. There is no failure of the
family sacrifices while the state of union continues. Every
member joins in them directly or vicariously. On a partition it
(x) Sheo Sohai Misser v. MussL Billasee, N. W. P. S. D. R. N. S. Pt. I. 1864,
p. 604.
iy) Mahantapa v. Nilgangowa, Bom. H. C. P. J. for 1879, p. 390.
(z) Datt. Chand. IV. 1—5.
(o) Vyav. May. Chap. IV. sec. VII., para. 28.
(6) It is a general maxim that what was prevented at its proper season may
not be taken up afterwards. See Colebrooke L. and Essays, vol. II. 138.
(c) The religious duties of separated brethren are necessarily divided. See
Vyav. May., Chap. IV., sec. VII., pp. 28, 29; Manu III. 69; Narada XIII. 37,
41, 383; Mit., Chap. H., sec. XII., para. 3.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1047
were sacrilege to let them sink into abeyance, and once separatelj^
appropriated they cannot, without sacrilege, be given up.
The adopted son, though he may be partially superseded by a
begotten son, yet, in the absence of such a son, takes the whole
share of his adoptive father in a partition of the joint estate {d).
Nor do the Hindu authorities draw any distinction in this respect
between a son adopted before and one adopted after the death
of the adoptive father. Each member of a united family is replaced
in the family by his son down to a partition of the inheritance (e).
From the moment of partition the son fully replaces him only in
the new family thus set on foot (/). The son adopted by a widow,
ranking as posthumous, blends with the united family and takes
his ideal father's interest in the estate {g), nor can this be
prevented by the existence of other joint interests which the
intruder impairs by sharing them (h). The control of the widow
by the surviving brethren is an attribute of their guardianship,
not of their ownership, and is itself subject to control if unfairly
used according to Hindu notions. But if a partition has been
made after the death of a sonless coparcener, and a provision has
been made for his widow and daughter (i), it seems that a subse-
quent adoption will not enable the adopted to reclaim his ideal
father's share from those amongst whom it has been dispersed.
The texts say that a proposed partition must be postponed until
the result of a widow's pregnancy is seen {k). They also provide
for a redistribution in favour of an actually posthumous son (I).
But they do not say that the parceners must await a widow's
election to adopt or not, or that a share must be made up for the
son subsequently adopted (m). As, therefore, there is a general
{d) Above, p. 836. Tara Mohun Bhuttacharjee v. Kripa Moyee Debia,
9 C. W. E. 423.
(e) I.e., so far as the great-grandson of one in actual participation. See above,
pp. 61, 62, 324, 711.
(/) Above, p. 338.
ig) Above, p. 348.
(h) See above, pp. 856, 859, 861.
(t) See above, pp. 694, 709, 712.
(fc) Above, pp. 72, 608, 770, 847; Mit., Chap. I., sec. VI., para. 12.
(l) Above, p. 722.
(m) The Sastris in one case declared that—" Inspired legislators had made
provision for the custody of the estate of minors, but neither they, nor any writer,
had provided for the charge of the estate of the unborn during an indefinite time ;
therefore the unborn could have no property." Bamundoss Hooker jea v. Musst.
Tarinee, 7 M. I. A. 188. See above, pp. 63, 554. The joint estate supporting
1048 HINDU LAW. [BOOK III.
rule allowing partition at the will of the existing members and
explicit exceptions for two particular cases, it would be opposed
to the Hindu principles of construction to admit a claim in a
third case on which there is no express authority for taking the
property back from its separate owners (n).
The fact, again, of property held by one descendant or group of
descendants from the same stock unshared by other descendants
implies partition or separate acquisition. By an extinction of the
united proprietary group the continuity and unity of ownership are
destroyed. The principles of partition rather than of inheritance,
as conceived by the Hindu lawyers (o), come into play, and the
law distributes the property once for all to those who are at that
moment entitled, by a distinct transfer and a creation of new
interests incompatible with any continuance of the old. The
revival of an interest once extinguished is nowhere contemplated.
The law as laid down in cases of adoption subsequent to a partition
following the adoptive father's death, or to the opening of a
collateral succession, seems thus quite in accordance with Hindu
principles. In the two cases immediately to be cited it does not
appear that the distinction between the divided and the undivided
family was kept quite clearly in view. In these there had not been
a partition, and the family still admitted of increase by adoption.
An adoption made by a widow will not, it was said, devest the
surviving joint sharers with her late husband's father of any part
of the property, nor when his father was separated will it devest
the deceased husband's sisters of their succession to their father,
unless made in either case with the assent of the persons
entitled (p). Property vested in one of two united brothers by
the death of the other, it was said in Govind Purshotam v
Lakshmibai (q), cannot be devested by the subsequent adoption of
a son to the deceased. In the absence of a partition it would seem
that the adopted son must take his father's place, as in Sri
Raghunada's Case.
common sacra remains accessible to an adopted son of an undivided member until
it has been divided. After this there is no authority for recovering any portion.
(n) See above, pp. 552, 554.
(o) See above, p. 561.
(p) Ramchandracharya v. Shridharacharya, Bom. H. C. P. J. 1881, p. 145.
See above, p. 889.
(g) Bom. H. C. P. J. 1882, p. 12; Bhubaneswari Debt v. Nilkomul Lahiri,
L. E. 12 I. A. 137.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1049
An adopted son succeeds collaterally as well as lineally (r) to
ancestral property (s). But though an adopted son succeeds
collaterally as well as lineally (t), his right, it is said, vests for
this purpose only from the adoption {v), i.e. the widow till then
can sue in her own right. Nor can he retrospectively take away
what passed to another through his non-existence or non-adoption
when the succession opened {iv).
In a leading case the Judicial Committee said : —
** Their Lordships think, therefore, looking at these authori-
ties (x), and the weight that is due to them, that an adopted son
succeeds not only lineally but collaterally to the inheritance of
his relations, and, if so, these appellants are not in a condition to
succeed, because they have distinctly admitted in their own
pleadings, and by the answer of their own pleaders given to the
Court, that an adopted son of tlie brother by the whole-blood was
in existence at the time of their suit being commenced. If an
adopted son of the whole-blood is in the same situation as the
natural son of the whole-blood, then the only remaining question is
whether the son of the brother of the whole-blood succeeds in
preference to the sons of the brother by the half-blood ; and upon
that point there is no dispute, for the authorities are uniform " (y).
That an adopted son of a whole-brother is preferred to a natural
son of half-brother {z), follows from the principles stated in the
(r) Sham Chunder et al. v. Nurainee Dibeh, 1 C. S. D. A. K., p. 209; Sumhoo-
chunder Chowdry v. Naraini Dibeh, 3 Knapp, p. 65; S. C. 6 C. W. E., p. 100
P. C. ; Gour Hurrie Kuhraj v. Musst. Rutnasuree Delia et al., 6 C. S. D. A. R.,
p. 203; Tara Mohun Bhuttacharjee v. Kripa Moyee Debia, 9 C. W. R. 423;
Lokenath Roy et al. v. Shamsoonduree, Beng. S. D. A. R. for 1858, p. 1863.
(s) Gokul Chund v. Narain Dass, N. W. P. R. 1862, Pt. I., p. 47.
(t) Sumboochunder Chowdry v. Naraini Dibeh, 3 Knapp, 55.
(c) Bamundoss Mookerjea v. Musst. Tarinee, 7 M. I. A. 169. See above, A. 6.
(to) Musst. Bhoobun Moyee Debia v. Ram Kishore Acharj, 10 M. I. A. 279;
Bhubaneswari Debi v. Nilkomul Lahiri, L. R. 12 I. A. 137.
(x) See Mit., Chap. I., sec. XI., pp. 30, 31; Suth. Syn. Head IV., Col. Dig.,
Book v., TT. 184, 217, Comm.
(y) Sumboochunder Chowdry v. Naraini Dibeh, 3 Knapp, Pr. Co. 61—62. See
Mitakshara, Chap. II., sec. IV., paras. 6 and 7; Daya-Bhaga, Chap. XI.,
sec. VI., para. 2. '* Can a son given be heir to a kinsman, or not? ... A text
of Manu shows that a son given, being endowed with every virtue, shall take
the heritage." Col. Dig., Book V., T. 277, Comm.
(«) See above, pp. 103, 104, 354. The Mitakshara gives the succession to
the half-brother in preference to the whole brother's son, but still the latter
precedes the son of a half-brother. The Judicial Committee placed the right
1050 HINDU LAW. [BOOK III.
earlier part of this work. It will be noticed too that in a case
between separated brothers and their sons, the latter do not
represent their predeceased father in succession to his post-
deceased brother, or take so long as another brother survives.
Much less, therefore, would an adopted son take back any part of
the succession thus disposed of before he was adopted. In the
case of a daughter's son, as he is not by his birth, nor therefore by
his adoption, a co-owner with his maternal grandfather whose
proprietary personality could thus be conceived as persisting in
him, he cannot take back the estate from those to whom the law
before his existence has given it. This is the application of the
general principle made by the Sastris at 7 M. I. A. p. 188. In
Bombay the daughter herself would succeed in the case supposed,
and then supposing her father had had an undivided brother
predeceased, the question would arise of whether the daughter's
existence was a bar to adoption by the widow of the first deceased
brother, or to the succession of the son thus taken. There is not
the slightest Hindu authority for saying that the adoption could
not be made ; and when made it would react so as to put the boy
adopted in the place held by his adoptive father in the undivided
family. A daughter, though she inherits, does not continue the
estate and the sacra as a son or a widow does (a). Her existence
is no bar to adoption, and in the case supposed the right to adopt
a fit person would subsist though she were a son.
In the case of collaterals generally, the nearest or those who
are equally the nearest of the nearest kin succeed. Amongst them
too there is no waiting for the possible birth of a posthumous son,
who, if already born, would precede those in existence (b). The
widow of a gotraja sapinda under the Bombay Law intercepts the
estate for her unborn child, but amongst the Bandhus the principle
of interpretation adopted by the Vyavahara Mayukha (c) would
shut out a child from succession, though when born, the nearest
to the propositus, if his birth followed instead of preceding the
opening of the succession. Similarly in the case of a son adopted :
he can retroactively continue an estate, but cannot recover one
given to others prior to his adoptive existence. If his mother has
of the adopted son on his becoming " for all purposes the son of the [adoptive]
father." See Rep., p. 60.
(a) See above, pp. 87, 120, 121, 789.
(6) Corap. p. 542, Q. 2, Rem. 2; p. 546, Q. 8, Rem. 1.
(c) Above, p. 460.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1051
succeeded as representative of her husband's line, he as son can
supersede her: if she has not, he cannot supersede others whose
personality is not identified with his adoptive father's (d).
That the estate which has once passed away to a separated
collateral cannot be affected even in part by a subsequent adoption
is strongly shown by the case of Nilcomul v. Jotendro Mohun
Lahuree (e), where even a postponement of adoption procured by
fraud was allowed to prevent the adopted boy, as a collateral, from
defeating the intermediate collateral succession of the guilty party.
In the case of collateral succession to the property of separated
branches or members of a family, there is no rule reducing the
share of an adopted son in competition with a son by birth. Th&
rule applies in terms only to the patrimony in which interests arc
acquired by birth and by adoption, not to an estate passing through
default of co-sharers to a collateral line. The adopted son is a
sapinda (/), equally with the son by birth, and the analogy of the
equality of the half-blood with the full-blood in the case of
sapindas not specifically provided for (g), may fairly be extended to
the adopted son. As the collaterals in the adoptive family inherit
equally from him as from a son by birth, so should he inherit from
them equally with a son by birth.
An adopted son of a coparcener excluded on account of blindness,.
&c., from a share in a partition is, according to the Dattaka
Chandrika, entitled to maintenance (h).
A niece's son adopted by her paternal uncle was pronounced
entitled to the management of business as managing Patel, while
the widow of the deceased nephew was pronounced heir to his
property (i). (Nothing is said of the caste or of division or
non-division. Division and Sudra caste seem to be assumed.)
" An adopted son is not precluded from inheriting the estate-
(d) In the event of a property falling in collaterally to a branch united in
itself, this inheritance would be taken by the then existing members to the
exclusion of a son afterwards adopted by a widow of a predeceased member
of the group. Such at least is the view that seems most conformable to-
principle for the reasons set forth above, pp. 648, 659; but the matter as showa
there is one of controversy amongst the Hindu lawyers.
(e) Above, pp. 350, 890. I. L. K. 7 Cal. 178. Affd. Bhubaneswari Debt v,
Nilkomul Lahiri, L. R. 12 I. A. 137 ; S. C. T. L. R. 12 Cal. 18.
(/) Above, pp. 107, 108, 435.
(g) Above, p. 116.
(h) Sec. VI. 1.
(i) MS. 5.
1052 HINDU LAW. [BOOK III.
of one related lineally, though at a distance of more than three
generations from the common ancestor." " The rights of an
adopted son, except in a few instances precisely defined in the
Dattaka Chandrika and the Dattaka Mimamsa by express texts,
are in every respect similar to those of a natural-born son. The
adopted son succeeds to the sapinda kinsmen of his father, and as
regards the sapinda relationship, there is no difference between
the adopted and natural-born son " (fc).
In Bengal, it has been held that an adopted son succeeds to the
property of a son of his sister by adoption (I).
One adopted succeeds another as nearest collateral relative (m).
Eelations between the Adopted Son and Kemoter
Connexions by Blood.
I. 1. B. 2. 6. — Of the Adoptive Mother.
As to the succession of an adopted son to property in right of a
xjonnexion through his mother with her family of birth (n) the
decisions have differed (o). In Chinnaramakristna Ayya v.
(k) Puddo Kumaree v. Juggut Kishore, I. L. E. 6 Cal. 615 ; in appeal
S. C. L. K. 8 I. A. 229; Mokundo Lall Roy v. Bykunt Nath Roy, I. L. E.
6 Cal. 289, quoting Tara Mohun Bhuttacharjee v. Kripa Moyee, 9 C. W. E.
423; Kali Komul Mozoomdar v. Uma Shankar Moitra, L. E. 10 I. A. 138.
See above, p. 838. Sutherland, 2 Str. H. L. 116, says, he (the adopted son)
inherits collaterally as well as lineally according to the Mitakshara, notwith-
standing passages in Datt. Mimamsa and Datt. Chandrika limiting his
sapindaship to three degrees.
(I) Puddo Kumaree Debee v. Juggut Kishore Acharjee, I. L. E. 6 Cal. 616;
fi. C. L. E. 8 I. A. 229.
(m) Gour Hurrie Kuhraj v. MussU Rutnasuree, 6 C. S. D. A. E. 203; Sham
Chunder et al. v. Naraiani Diheh, 1 C. S. D. A. E. 209.
(n) See above, p. 456 ss. " In a case where the right is not dubious, the
funeral cake shall be offered by a daughter's son to his maternal grandfather,
although he do not claim the estate and family." Col. Dig., Book V., T. 276,
-Comm.
(o) Under the Eoman Law an adoption did not make the adopted a cognate
of his father's cognates ; the mutual rights of inheritance were restricted to
those connected as agnates. "With the adoptive mother's family he had no
connexion to form a basis for mutual rights. (See Willems, Dr., Pub. Eom.,
p. 87; above, p. 836.) Justinian's rule under which the adopted eon remained
in the family of his birth corresponded to the preference long established by
practice of the marriage without " Manus " to that accompanied by " Manus."
*IhG Eoman wife in the later ages remained a member of her father's family.
S. VII. I.] CONSEQUENCES OF ADOPTION. 105^
Minnatchi Ammal (p) he was refused the place of a daughter »
son as heir to her father's property. The P. Sadr Amin had
decided in hi-s favour on the authority of the Dattaka Mimamsa,
but the High Court set him aside in favour of the grandson of a
brother of the adoptive mother's father. The latter is by the
Madras High Court ranked as a Bandhu. According to the
Mitakshara he is a gotraja sapinda of the propositus, but would
still rank after the daughter's son; but the Madras decision denies
to the adopted son any right at all as a grandson to his mother's
father.
In the North-West Provinces on the other hand it was held, in
Sham Kuar v. Goya Din {q) that the adopted eon succeeds to the
property inherited by his adoptive mother from her father, and
as the doctrine of a mere life estate being taken by a female heir
prevails there (r), the adopted son must have been thought a
competent heir to his maternal adoptive grandfather.
In Bengal a decision precisely the reverse had been given in
Gungd Mya v. Kishen Kishore Chowdry (s). In Teencowree
Chatterjee v. Dinonath Banerjee {t) it was ruled, that to his
adoptive mother's stridhan the adopted eon succeeds in the absence
of daughters. It had previously been held that Gunga Mya's Case
was not conclusive, and that where an adopted son was the
propositus, the maternal relatives inherited from him as from a
son by birth (v). This would seem to establish a reciprocal
connexion by which the adopted son ought in his turn to benefit,
but such a doctrine was denied in Moun Moyee Deheah v. Bejoy
Kishto Gosave (w), and it was by this case that the Madras Court
was governed in that of Chinnarama v. Kristna Ayya. The text
of Manu is very explicit in giving the right only to a son begotten
She did not become a member of her husband's family. It was, therefore,
most natural that her husband's adopted son whose connexion even with the
adoptive father's family was limited to the agnates should have none at all
with hers. The mutual rights of succession between mother and child rested
on special laws. See Ortolan, Inst. § 152. Willema, Dr., Pub. Eom., p. 77.
(p) 7 M. H. C. E. 245.
iq) I. L. K. 1 All. 255.
(r) See above, p. 316.
(s) 3 C. S. D. A. K. 128.
(t) 3 C. W. R. 49.
(v) Gangapersad Roy v. Brijessurree Chowdhrain, 15 S. D. A. R. 1091.
See above, p. 454 ss.
(to) W. R. F. B. 121. See 1 Hay, 260.
1054 HINDU LAW. [BOOK III.
by the daughter's husband (x), and the " daughter's son " m
Vishnu (y) probably had no other in view. But as the adopted
son now makes oblations to his adoptive mother's male
Ancestors (z) the connexion may logically be attended with
mutual rights of inheritance, as in the case of a daughter's son by
birth (a).
The question came before the Judicial Committee in Rani Anand
Kunwar v. The Court of Wards (h), but their Lordships did not
pronounce upon it. The High Court of Bengal, however, has
held that, according to Hindu Law, an adopted son takes
by inheritance from the relatives (father and brother) of his
adoptive mother in the same way as a legitimate son (c). A
similar opinion has more recently been expressed by the Judicial
Committee in Kali Komul Mozoomdar v. Uma Sunkar Moitro (d).
Their Lordships say : — " As to the second question, their Lordships
have held in Pudma Coomari Debi v. The Court of Wards (e), that
an adopted son succeeds not only lineally, but collaterally, to the
inheritance of his relatives by adoption. In that case the claimant
was the adopted son of the maternal grandfather of the deceased,
and it was argued for the appellant that it was distinguishable
from this case. But their Lordships laid down that an adopted son
occupies the same position in the family of the adopter as a natural-
bom son, except in a few instances, which are accurately defined
both in the Dattaka Chandrika and Dattaka Mimamsa. That
this is the Hindu law is shown by the careful examination of the
authorities by the learned native Judge who delivered the judgment
(x) Above, p. 421.
iy) Above, p. 420.
(z) See Col. Dig., Book V., T. 275, Comm.
(a) Above, pp. 418, 460.
(fe) I. L. E. 6 Cal. 764; S. C. L. E. 8 I. A. 14.
(c) Uma Sunker Moitro v. Kali Komul, I. L. E. 6 Cal. 256. "It is,
therefore, clear, that the adopted son confers the same spiritual benefit upon
the relatives of his adoptive mother as a legitimate son does, and that he is
cut off from the inheritance of the relatives of his original mother. That being
80, it MTould accord v^^ith the dictates of natural justice, as vs^ell as v^ith the
principles upon which the Law of Inheritance in the Bengal School is based,
to hold that an adopted son succeeds to the property of the relatives of his
adoptive mother in the same way as a legitimate son." (Jud. Cit., p. 262.)
This is approved and followed in Surjokant Nundi v. Mohesh Chunder Dutt
Mojoomdar, I. L. E. 9 Cal. 70.
(d) L. E. 10 I. A. 138.
(e) L. E. 8 I. A. 229.
8. VII. I.] CONSEQUENCES OF ADOPTION. 1055
of the Full Bench of the High Court, which is the subject of this
appeal. The respondent claims to succeed as being the daughter's
son, and consequently the heir of his maternal grandfather at the
death of his widow, which he would be if he were a natural-born
son, and as an adopted son he is in the same position. This is
clear from the Dattaka Mimamsa, sect. 6, p. 50, where it is said,
' The forefathers of the adoptive mother only are also the maternal
grandsires of sons given and the rest, for the rule regarding
paternal is equally applicable to maternal grandsires (of adopted
sons).' Their Lordships are, therefore, of opinion that the decree
of the High Court in favour of the respondent is right. ' '
I. 2. — Imperfect Adoption under the Ordinary Law (/).
The law of the Sastras, or what was supposed to be so {g), has
practically been superseded by the customary law and the
decisions of the Courts as to the status of a boy defectively
adopted. These decisions are of course authoritative so far as they
extend. Still it may be useful to consider what the Hindu lawyers
have said as to the consequences of an imperfect adoption as
affecting the relations between the adopted and the family of birth
and the family of adoption, and the view taken of his relations as
a grantee of public lands or endowments.
The customary law is thus stated : —
" Adoptions may be annulled if made contrary to caste custom.
Several of the caste enquire into the irregularity complained of,
and their decision is carried into effect (whether declaring the
validity or annulment of the adoption) " (h).
' ' In such case the separating adopted son might take a small
share (one-tenth) without being chargeable with the payment of
his adoptive father's debts " (i).
I. 2. A. — Eelations to the Family of Birth.
An adoption may have been imperfect in the sense of not
constituting the proposed relation or, in having failed merely in
(/) See sec. VI, A. 6. Should no adoption be attempted the estate descends
as if none were intended. See sec. VIII. and 2 Str. H. L. 90.
ig) Above, pp. 835, 836.
(h) Steele, L. C. App., p. 388.
(i) Steele, L. C. App., pp. 389, 390.
1056 HINDU LAW. [BOOK III,
some unessential particular not impairing its jural effect. The
Hindu lawyers recognize an intermediate result, where the gift
has been so far completed as to sever the child from his family of
birth, but the acceptance in adoption has not been so made as to
make him a member of the adoptive family (fe). This status of
the adopted is of only theoretical interest; both the castes and
the Courts, as we have seen, refuse to acknowledge a parting from
the one family without a union to the new one.
The rights of a man in his family of birth remain unaffected
when his adoption has been invalid (I).
I. 2. B. — Kelations to Family of Adoption.
To disqualify for sharing in a partition leprosy of a virulent
form (m) or the like defect must have arisen previous to division ;
but if succession is once vested exclusively in the others, it is not
devested by adoption (w) on the part of the disqualified man whose
share has been appropriated. It seems that such persons cannot
themselves adopt, but that sons already adopted are entitled to
a provision for their maintenance (o). Custom sometimes allows
a vicarious adoption (p).
When an adoption of a son has once been absolutely made and
acted on, it cannot be declared invalid or set aside at the suit of
the adoptive father. A cancellation of adoption might, it was
ruled, be based upon the grounds — (1) The adoption was not in
(k) The gift alone severs connexion with the family of birth, even if the rites
are insufficient to establish a connexion with the family of adoption. (Datt.
Chand. II. 19, 20; see 2 Str. H. L. 122.)
(Z) Bhawani Sankara Pandit v. Amhahay Ammal, 1 M. H. C. R. 363, 365 ;
above, p. 836. " Examples of irregularities justifying annulment are : adop-
tion of a father's brother or sister's son, or an elder than the adopter, or of a
boy without the necessary consent, or of a boy who is a cripple, or disabled in
senses or understanding." Steele, L. C. App., p. 388. As to a defective
gift being null, 2 Str. H. L. 433; H. H. Wilson, Works, vol. V., p. 73.
(m) Mohunt Bhagwan Ramanuj Das v. Das, L. R. 22 I. A, 94.
(n) Sevachetumhara Pillay v. Parasucty, M. S. D. A. R. for 1857, p. 210;
1 Str. H. L 163. Above, p. 886.
(o) See above, sub-isec. I. 1 B. 2. 5, and pp. 544, 551, 689, 690, 795. The
son adopted when the adopter was competent, as before he was afflicted with
leprosy, ought on general principles to take his father's place as though the
father had died. See above, pp. 149, 542.
(p) See above, p. 546.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1057
the manner and according to the ceremonies required by Hindu
Law ; (2) The boy was not a fit and proper person to perform the
plaintiff's obsequies or to make offerings for the benefit of the
souls of the plaintiff's ancestors, being devoid of education and
religious knowledge and principles, and the associate of thieves,
gamblers, and women of immoral character; (3) He failed to
perform his part of an agreement or compromise in writing entered
into by him with the plaintiff (q).
An absolute disqualification of the boy, the performance of the
ceremonies of adoption on a boy of a different caste, or the omission
of them in adopting a boy of a different gotra (r), is variously said
to make the adoption null, while severing the boy from his
family of birth or to constitute an adoption of an inferior kind.
According to either view the boy defectively adopted is entitled to
maintenance on the footing of a das or slave (s). The gift alone
is supposed to sever him completely from his family of birth (t).
The authority last cited makes the performance of the ceremonies
by the adoptive father effectual to release even a tonsured son
from connexion with his family of birth, and to raise him from
the servile rank to that of a son to the adoptive father (v). It
would now probably be held that there must be the proposed
change of status or none at all, and that failing a complete
adoption, the boy must remain a member of his family of birth (w).
The gift or sale, which formerly gave a good title to the purchaser
as owner of a slave, can no longer operate since the passing of
Act V. of 1843 {x). The doctrine of a complete gift and acceptance
as son being sufficient, and the attendant ceremonies only
incidental, not absolutely essential, gets rid of many difficulties
arising from the precepts just considered (y). That there cannot
be a complete gift without complete acceptance, see the Viram.
Transl. pp. 33, 35, and comp. Datt. Mim. sec. IV. 3. The work
(g) Sukhhasi Lai v. Guman Singh, I. L. E. 2 All. 366. Above, pp. 843, 845.
(r) Datt. Mim. V. 56.
(*) See Steele, L. C. 46, 184; Datt. Mim., sec. III. 2, 3; sec. IV., 40 ss. ;
Col. Dig., Book III., Chap. I., T. 29, 33, Comm. ; Book V., T. 182, 273, 275,
Comm.
(t) Datt. Chand., sec. II. 19.
(v) See ibid., para. 27.
(w) See Colebrooke in 2 Str. H. L. 223; Steele, L. C. 388. Comp. Just.
Inst., Book I., T. XI. 2; and Ortolan, § 138.
(x) See 2 Str. H. L. 221, 224.
iy) See Col. Dig., Book V., T. 273, Comm.
H.L. 67
1058 HINDU LAW. [BOOK III.
last cited specifies a gift, acceptance, and burnt offering as
indispensable (z), and with this, as to Brahmanas, custom seems
to agree (a). Colebrooke explains the slavery incurred by the
quasi-ado]pted as servitude only of that highest kind from which
a man frees himself by resigning his right to subsistence (b). The
seiwitude indeed could not be more than nominal, seeing that
though the son irregularly adopted was not entitled to succeed or
to share the patrimony, his adoptive father was bound to get him
married, and so set him up as a householder (c).
If one of a different caste has been adopted, the authorities
exclude him from any share in the patrimony, but declare him
entitled to maintenance {d), a right which arises in every case of
severance from the family of birth without complete acceptance
into that of adoption. Thus " in case of discovery that the boy
being of another gotra, was not adopted with [the regular]
ceremonies, or that he was of another caste, the adoption is null
and the boy is to receive maintenance as a das or slave "(e). A
Smriti passage frequently repeat-ed says: " If a doubt arises as to
a remote kinsman (adopted), i.e. as to his qualifications, the
adopter shall set him apart like a Sudra " (/).
The decisions recognizing the particular status we are now
considering have been very few. In one it was held that a Hindu
invalidly adopted is entitled to maintenance in the adoptive
family (g). In another case it was ruled that the adopted son of
one whose adoption has been held invalid, cannot claim through
the right of his adoptive father to be maintained by the alleged
adoptive grandfather (h).
(z) See sec. V. 56. (a) Steele, L. C. 184.
(b) As to this, see Col. Dig., Book III., Chap. I., T. 29, 48; 2 Str. H. L.
223, 226, 228.
(c) Datt. Mim., sec. V. 45, 46; Datt. Chand. sec. II. 18; sec. VI. 3, 4;
MS. 1744. The earlier Eoman Law required both a mancipatio to transfer
the son from his family of birth, and a vindicatio or claim to him by the
adoptive father as son to make a complete adoption. This vindicatio had to
take place before a judicial officer, whereby formality and publicity were
secured. See Ortolan, Inst. § 133 note, § 140. Later the requisite sanction
was derived either from an imperial rescript for the case of one sui juris or an
order of a judge for one alieni juris. Ibid., §§ 136, 137.
(d) Datt. Mim., sec. III. 1—3.
ie) Steele, L. C, p. 46. (/) Vas. XX. 7.
(gf) Ayyavu Muppanar v. NiladatcJii Ammal, 1 M. H. C. E. 45.
(h) Bawani Sankara v. Amhahay Ammal, 1 M. H. C. E. 363. The adopted
father's adoption had been pronounced invalid on the ground that the widow
adopting had not authority from her husband.
S. VII. I.] CONSEQUENCES OF ADOPTION. 1059
The Sastris treat this semi-adoption as a living institution, as
in the following answers: — " A son illegally adopted had," it was
said, " a right to maintenance and marriage expenses " (i). "A
boy adopted after his chuda and other sacraments becomes a das
entitled only to such property as may be conferred on him by
gift" (fe).
The British Courts, rejecting generally any distinction except
that of belonging to the one or the other family, regard an
essentially defective adoption as no adoption. Thus it was said,
an authority to adopt "must be strictly pursued, and, as the
adoption is for the husband's benefit, so the child must be adopted
to him and not to the widow alone. Nor would an adoption by the
widow alone for any purpose required by the Hindu Law give to the
adopted child, even after her death, any right to the property
inherited by her from her husband " {I). An attempt was made
in one case to establish the principle, that an adoption incompetent
to the person who made it through the existence of a representative
of the family and estate might, on the removal of this person by
death, acquire the validity it would have had in the absence of
the obstacle at the time when it was made (m). In Bhoohun
Moyee's Case (n) it was ruled, that a power to adopt could not be
exercised after the death of the natural son leaving a widow. This
in a later case (o) was interpreted as meaning that the adoption
was absolutely invalid, not merely ineffectual to deprive the son's
widow of her estate bv succession to the deceased son her
(i) MS. 1744. See above, p. 836. He is put on an equal footing with an
illegitimate, and " the father is obliged to support his natural son, he per-
forming the duties of a servant." Steele, L. C, p. 179.
(k) MS. 1674. The Sastri, 2 Str. Hindu Law, 121, speaks of a Nitya Datta
or permanent adoption, and an Anitya Datta or temporary one, and this, as he
explains, depends on the performance or non -performance of the upanayana
before adoption. Colebrooke says, the son of such a dvyamushyayana belongs
to the family of his father's upanayana (and consequent gotraship).
(l) Chowdry Pudum Singh v. Koer Oodey Singh, 12 M. I. A. 350, 356.
(m) The nearest analogy, perhaps, would be the setting up of a bigamous
marriage amongst Christians, as validated by the subsequent death of the
obstructive spouse. The adoption of a son in the lifetime of another is not
validated by the death of the latter. See above, p. 844.
(n) 10 M. I. A. 279.
(o) Pudma Coomari Dehea v. The Court of Wards, L. K. 8 I. A. 229; Chandra
V. Gojrahai, I. L. K. 14 Bom. 463; Payapa v. Appanna, I. L. E. 23 Bom. 327 ;
Sidappa v. Ningangavda, I. L. R. 38 Bom. 224.
1060 HINDU LAW. [BOOK III.
husband (p). The argument of the High Court of Calcutta that
the adoption, though ineffectual as against the son's widow,
became effectual on her death, and made the adopted son, then
a brother by adoption of her deceased husband, was rejected by
the Judicial Committee. The elder widow could not indeed give
effect by acquiescence or ratification to that which was absolutely
void; and the so-called adopted son was held not to have taken
any rights (g). In Bombay the son's widow would, unless he had
intimated his dissent, have had a right to adopt to him as a
separated Hindu (r), and with his authority, or the sanction of
his father (s), or when the father is dead with the consent of his
united brethren, if he was unseparated (t). But as in Bengal the
mother armed with authority from her deceased husband could
not adopt (v) after the estate and the sacra had wholly centred in
her son by the completion of his samskaras (w), neither in Bombay
could she by such an authority, or by a mere implied authority
drawn from her son, adopt so as to withdraw the son's property
from him to whom the law had intermediately given it (x). It is
the widow and she only who continues her husband's spiritual
existence {y), and can replace him at any moment by an adopted
son (z), subject in a united family to the assent of the surviving
male members on account of her religious subordination to
(p) An opinion of Colebrooke to precisely the same effect, even where the
adopted was a nephew of the deceased adoptive father, is given at 2 Str. H. L.
93.
(g) L. E. 8 I. A. 229.
(r) Above, pp. 868, 880, 885. Lakshmibai v. Sarasvatibai, 1. L. E. 23 Bom.
789.
is) Vithoba v. Bapu, I. L. E. 15 Bom. 110.
(t) Above, p. 881.
(v) This seems to be the correct doctrine. See above, p. 880 ss. Comp.
V. V. Krishnarao v. Venkatrama Laxmi, I. L. E. 1 Mad., at p. 187.
(w) As to the theory advanced in Ram Soonder Singh v. Surbanee Dossee,
22 C. W. E. 121, see above, sub-sec. I. 1. B. 2. 2. No adoption is approved
by the Hindu Law over an initiated man's head, even when he has migrated
to the other world. Even a single adoption may be replaced by a widow's
sacrifices and austerities. See above, pp. 790, 1012, and Col. Dig., Book IV.,
Chap. III., sec. II.
(x) Above, p. 880. Sutherland, in 2 Str. H. L. 94, denies that a mother can
adopt for a son. Gopal v. Vishnu, I. L. E. 23 Bom. 250; Payappa v. Appanna
I. L. E. 23 Bom. 327.
iy) Above, pp. 86, 397.
(z) Above, pp. 869, 880.
S. VII. II.] CONSEQUENCES OF ADOPTION. 1061
them (a). However, a mother succeeding to her deceased son who
has left no widow nor issue is competent to adopt (b) ; but it has
been held in Krishnarav v. Shankar Rav (c) that her power to
adopt is exhausted if she succeeds as heir to her son on his decease
as well as that of his widow. According to this decision her power
to adopt once postponed cannot be revived; but in Bengal it has
been laid down that when the estate is once more vested in her {d)
her right to adopt revives.
I. 2. C. — Eelation as a Grantee.
It may be gathered from what is said of the customary law in
Steele, L. C. 183, that under the native system an adoption would
not in general be recognized by a sovereign or the grantor of an
estate as imparting a right of succession to it without the superior's
consent being gained (e).
An adopted son can succeed to his father's jagir, but if he rests
his title to succeed on a confirmative sanad, he is bound, it was
said, to prove it (/).
II. — Consequences of Adoption or Quasi- Adoption not
Governed by the Ordinary Law.
II. A. — Validity Eecognized.
A. 1. — Without Limitation (save by an Exceptional Law).
" By agreement at the time of adoption or by the operation of
law when the adoptee is a brother's son (g) a boy may represent
both fathers. But witliout this he cannot succeed to his natural
father's property " (h).
(a) Above, p. 881.
(b) Venkappa v. Jivaji Krishna, I. L. K. 25 Bom. 306.
(c) I. L. E. 17 Bom. 164.
(d) Manikchand v. Jagattsettani, I. L. E. 17 Cal. 518.
(e) See above, pp. 853, 901. Comp. Blackst. Comm. Book II. Chap. 4, as
to the feudal succession, recognition, and relief.
(/) Maharajah Juggumath Sahaie et al. v. Musst. Mukhun Koonwur,
3 C. W. E. 24 C. E.
ig) Krishna v. Paramshri, I. L. E. 25 Bom. 537.
(h) MS. 1692. See above, p. 808 ss. Behari Lai v. Shib Lai, I. L. E.
26 All. 472 ; Krishna v. Paramshiri, I. L. E. 25 Bom. 537. Asi to this form of
adoption among the Lingayats see Chenava v. Basangavda, I. L. E. 21 Bom.
105.
1062 HINDU LAW. [BOOK III.
" If a Brahman adopts a son of a different gotra the boy is to
be regarded as a dvyamushyayana, not as a legal son of the
adopter. If the boy's chaul and munj have been performed he
becomes a das entitled only to maintenance. But he may perform
the adoptive father's Sraddha and succeeds in the absence of
[a begotten] son, widow, and other near relatives " (i).
" A boy adopted from a different gotra after his munj becomes
a dvyamushyayana," which the Sastri describes as one " bound
to observe the prohibitions as to marriage applicable to both
families " (fc).
A dvyamushyayana does not take the name of his adoptive
father (l).
When an only son is adopted he succeeds to his natural as
well as to his adoptive parents (m) if taken as a dvyamushyayana.
The effect by the Hindu Law of an adoption as a dvyamushyayana
(son of two fathers) is not to deprive the adopted son of his lineage
to his natural father, or to bar him of his right of inheritance to
his father's estate (n). But in Bombay he does not inherit from
his real father except in the absence of other sons (o).
II. A. — Validity Eecognized.
A. 2. — With Local Limits.
A kritrima son adopted by a male inherits, it was said, in both
families (p); and similarly it was said that " one adopted by the
(t) MS. 1675.
(k) MS. 1674. The boy would generally be dvyamushyayana merely because
he could not properly be given except as a dvyamushyayana.
(l) Musst. Edul Koonwar v. Koonwar Dehee Singh, 5 N. W. P. Dec. 341.
(m) Nilmadhuh Doss v. Biswamhar Doss, 12 C. W. K., p. 29 P. C. ; S. C.
3 Beng. L. E., p. 27 P. C. ; S. C. 13 M. I. A. 85. The Judicial Committee
say — " Again, if there is, on the one hand, a presumption that Goorooproshad
Doss would perform the religious duty of adopting a son, there is, on the other,
at least as strong a presumption that Purmanund would not break the law by
giving in adoption an eldest or only son, or allowing him to be adopted other-
wise than as a dvyamushyayana, or son to both his uncle and his natural
father."
(n) Nilmadhub Doss v. Biswamhar Doss et al., 13 M. I. A. 85. See above,
p. 810.
(o) See above, p. 809.
(p) Musst. Deepoo v. Gowreeshunkur, 3 C. S. D. A. E. 307. See above,
S. VII. II.] CONSEQUENCES OF ADOPTION. 1063
kritrima form, which is in use in Behar, Tirhoot, &c., takes the
inheritance both in his own family and in that of his adoptive
father " (q).
With regard to kritrima adoptions it has further been ruled
that a person adopted by the husband stands to him in the
relation of a son, and is heir to his estate; but does not become
the adopted son of the adoptive wife, nor succeed to her peculiar
property (r).
Nor does the person adopted by the wife, as her son, become the
adopted son of her husband, or succeed to his property, even by
the Maithila shasters, though the adoption should have been
permitted by the husband. But, as her son, he will succeed to
her property (s). But if the husband and wife jointly appoint an
adopted son, he stands in the relation of a son to both, and is heir
to the estate of both (t).
When an adoption has been made in the kritrima form, the sons
of the adopted have no right to set aside alienations which the
adoptive father of the adoptee made of his self -acquired property
for alleged illegitimate purposes (v).
A son, adopted by a widow without her husband's permission,
has no right to her property until her death (w).
II. A. — Validity Recognized.
3. — Amongst Certain Classes.
Among the Talabda Kolis of Surat, the son adopted according
to their fashion celebrates his adoptive father's obsequies with
a feast, and succeeds him. His adoptive father may dispose
p. 906. The kritrima adoption like that of a palak putra bears a pretty close
resemblance to the Eoman adoption in its latest stage. See above, pp. 827, 828.
iq) Srinath Serma v. Radhakaunt, 1 C. S. D. A. R. 15.
(r) Srinarain Rat et al. v. Bhya Jha, 2 C. S. D. A. R. 27.
is) Ibid.
(t) Ibid. Collector of Tirhoot v. Huropershad Mohunt, 7 C. W. R. 500.
(c) Baboo Banee Pershad v. Moonshee Syud Abdool Hye, 25 C. W. R. 192.
(w) 2 Hay, 410. This, of course, impHes where she has a right, otherwise
the adoption would be invalid for all purposes. See above, I. 2 B. ; 2 Str.
H. L. 91
1064 HINDU LAW. [BOOK III.
of his property as he pleases, but failing this the adopted son
succeeds (x).
An adoptive father may, according to the custom of the Talabda
Koli caste, repudiate an adopted son for such reasons as. would
justify a natural father in disinheriting his son (y).
II. B. — Validity not Eecognized.
1. — Obsolete.
A person cannot succeed as adopted son of a daughter who has
brothers alive, and who cannot be an appointed daughter if she
had brothers when she married, nor can he succeed as claiming
under a bought son (z).
One sold or given by his parents or by himself ranks as a slave
according to Manu quoted by Jagannatha in Coleb. Dig. Bk. III.
chap. I. sec. I. T. 33 and Commentary. Attempts to procure a
son in this way are thus made abortive in the present age.
B. 2. — Adoption Partly Assimilated to that under the
Ordinary Law.
Two brothers attempting to adopt the same sons declared —
" According to our Sastras the said two adopted sons will perform
our obsequies, and shall become successors of our ancestral and
self-acquired property." Though this showed an intention to
make and take a gift, yet it was pronounced inoperative if the
persons did not fulfil the character of adopted sons (a).
" A person taken as pupil by a Gosavi cannot on his natural
father's death claim a debt due to the latter " (h).
(x) Bhala Nahana v. Parhhu Han, I. L. E. 2 Bom. 67.
(y) Bhala Nahana v. Parhhu Han, I. L. E. 2 Bom. 67, 70.
(«) Yachereddy Chinna Bassavapa v. Yachereddy Gowdapa, 5 W. E. P. C.
114.
(a) S. Siddesory Dossee v. Doorgachurn Sett, 1 Bourke, 360. The Datt.
Mim., sec. I. 30, says the same person cannot be adopted by two, but caste
custom seems to have recognized it in a few instances in Central India. And
the Datt. Mim. II. 47, 49, allows the adoption of one son (a nephew) by several
united brothers, on the principle that the son of one is in a sense the son of all.
(b) MS. 1248.
S. VII. II.] CONSEQUENCES OF ADOPTION. 1065
B. 3. — Merely Analogous.
A son-in-law having been adopted succeeded to the estate. Jt
was attached for the debt of the adoptive father. The Sastri said
that the adopted son's son by a wife not his adoptive father's
daughter had no claim to raise the attachment (c).
The Hindu Law does not recognize any legal status for the
foster-son, either in the matter of performing ceremonies or of
inheritance {d). " Nephews, though separated, inherit before a
mere foster-son " (e).
" A palak putra is not entitled to share in any property de
jure (/) generally in the Dakkhan; but in a few cases, such as
the one above, p. 356, Q. 18, the Sastris have been more indulgent.
In the case at 2 Str. H. L. 426, the Sastri so far assimilates the
foster- son to an ordinary son, that he says a gift may be made
to him in his absence without delivery of possession {g).
(c) MS. 31. If there was a true adoption, the son-in-law would transmit to
his son the same rights as if he had been a son by birth. Probably the case was
one like an Illatam adoption in Madras, see above, p. 398. Amongst the Motati
Kapus, a low caste in Madras, an affiliation is allowed of a son-in-law in the
absence of a begotten son. He takes the place of such a son in succession, and
shares equally with one born after his affiliation. The question of his resembling
an adopted son in other respects than for the purpose of succession was not
decided, H anumantamma v. Rami Reddi, I. L. E. 4 Mad. 272, 274. Similar
customs are recognized by some of the Bombay castes; thus — " Should a man
have a daughter and no son, he may give her in marriage to a gharjawahee, who
is invested with the management of the house and property, but who becomes
proprietor only of such property as his father-in-law gives him at his marriage,
or with the consent of his other relations." Steele, L. C. App., p. 358.
(d) Bhimana Gaudu v. Tayappa, M. S. D. A. E. 1861, p. 124; Samy Josyen
V. Ramien, M. S. D. A. E. 1852, p. 60; Nilmadhuh Doss v. Biswamhhar Doss,
12 C. W. E. P. C. 29 ; S. C. 3 B. L. E. P. C. 27 ; S. C. 13 M. I. A. 85 ; Kalee
Chunder v. Sheeb Chunder, 2 C. W. E. 281. See above, p. 828.
(e) MS. 119. The Sastri, above, p. 906 (m), allowed that a foster-son might
be heir by custom ; and amongst Sudras he was in one instance given a place
in the family. See above, p. 362, Q. 10.
(/) Steele, L. C, p. 184.
(g) See above, pp. 180, 634. The passages cited by H. H. Wilson, Works,
vol. v., p. 90, show that while some change of possession is necessary in general
to complete a title, yet a partial possession may, when rightly taken, be extended
to the whole, and may be dispensed with where the deed is incontrovertible.
As to the distinction taken by the Sastri between the ceremonies necessary
for the transfer of immovable and of movable property, see the Mit., Chap. I.,
sec. I., para. 31; Col. Dig., Book II., Chap. IV., T. 33 Comm. ; Book V.,
T. 390, Comm.
1066 HINDU LAW. [BOOK III.
The Oudich (Kaletiya) Brahmanas of Broach answered
Borradaile that either a foster-son or an adopted son might be
taken. He would share equally with an after-born son, and he
might, faihng any other son of his real father, take both estates
(like a dvyamushyayana) (h).
Adoption (so-called) amongst Naikins does not create any legal
rights similar to those arising from a true adoption (i).
(h) MS. Book A., p. 63. The place given to the foster-son in this section is
assigned to him only in deference to the uniform effect of the decisions of the
Courts. See above, p. 829. Since that page w^as printed, the present writer
has re-examined in the Borradaile MS. Collection the accounts given of their
usages by 61 castes and sub-castes in Gujarath. Of these 38 reject both the
adopted and the foster-son; of this number are Brahmanas of various classes.
Two castes allow either kind of son. Ten allow only the foster-son. Two
allow adoption only, but limited to a brother's son. In one caste (Vaghirs)
the only recognized affiliation is by purchase. Four or five allow a dharma-
putra to perform the parents' obsequies. Wherever the palak-putra is allowed,
his heritable right to his foster-father is recognized, and, with a couple of
exceptions, a right in relation to his real father, like that of a dvyamushyayana.
In one caste (Surya Vamshi Kshatris of Broach) the foster-son takes only the
self-acquired property of the foster-father, not the ancestral estate. In another
(Guduja Machi) " one may take a boy and give him a little." One (Surathiya
Mali) expressly excludes him from collateral succession in his new family.
In most cases the foster-son is allowed to share equally with an after-born son ;
in others he is reduced to one-third or one-half as much. The relative shares
are in a couple of instances subject to control by the father. A widow may
take a foster-son from her husband's family, except (in &ome castes) when there
is a nephew. The sanction of the family is required to her taking from her
own family or a stranger, if there is property left by the husband (Surya Vamshi
Kshatris). Liberty to re-marry disqualifies a widow for taking a foster-son
(Kahnumiya Hajjam). No rites are prescribed for taking as a foster-son
beyond an expression of consent by the parties concerned.
It may be gathered that adoption is generally disallowed or unknown as a
usage in Gujarath, though, should any one take it on himself to adopt, the
castes would find it hard to contend against the Sastra ; and it is supposed that
in such a case the ceremonies would be governed by the scripture rules. Where
a substitutionary son is allowed, it is, considering the relative members in the
castes, in at least nine cases out of ten, a foster-son. The actual usage of the
people thus seems to be quite opposed on this subject to the opinions of the
Sastris, and the decisions of the Courts influenced by those opinions. The
difference is the more important, as from many of the answers of the castes
it appears they were by the Government of the day promised the maintenance
of their customary law when thus ascertained.
(i) Mathura Naikin v. Esu Naikin, I. L. K. 4 Bom. 545. The mere nurture
and recognition by a temple woman of a man as her son was apparently thought
sufficient by the Sastri to make him her heir. (See sec. IV. ad fin. Above,
p. 945.)
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1067
SECTION VIII.— SUITS AND PEOCEEDINGS CONNECTED
WITH ADOPTION.
The principal decisions bearing on the substantive law of
Adoption have been considered in the preceding sections (fc). In
the present section it is proposed to supplement them with a
certain number illustrating the questions that arise in litigation,
and the way in which these have been dealt with by the Courts.
The decisions will be distributed with reference mainly to the
object of the litigation. Such a classification, though wanting in
scientific precision, seems the most convenient for the practical
purposes at which the present section aims.
The exercise of jurisdiction by the Sovereign in this class of
cases is fully recognized by the Hindu Law {I). The source of the
rights and duties that come in question is in the religious law, but
the relations themselves are of a kind on which the Civil Courts
are bound to adjudicate. According to the customary law — " The
caste is competent to decide on the question of a legal adoption.
If unsettled by them, it may be referred to the Sirkar " (m).
1. — Suits and Proceedings Arising out of Non-Adoption.
' ' A man cannot cancel his agreement to adopt by entering into
a different one " (n).
No suit can be maintained for an order directing a minor widow
to adopt, nor, it was said, was this a case in which a decree could
be made declaring the validity of a direction (o) to adopt.
Where a will says — " I declare that I give my property to K.,
whom I have adopted. My wives shall perform the ceremonies
and bring him up. . . . Should he die, and my younger brother
(fe) The cases of adoption in the Bombay Presidency " may be taken to be
governed by the Mayukha." {The Collector of Madura v. Moottoo Ramalinga
Sathupathy, 12 M. I. A. 397, 439.)
(l) Compare what is said on matrimonial law by the Judicial Committee in
Ardaseer v. Perozehoye, 6 M. I. A., at p. 391.
(m) Steele, L. C, pp. 185, 186. As to the jurisdiction of the caste and the
appellate jurisdiction of the Courts of the King recognized, in all cases, see
Ellis in 2 Str. H. L. 267—268; Yajnavalkya, Chap. II. 5, and the commentary
of Vijnanesvara, 1 Macn. H. L., pp. 133, 141 ss.
(n) MS. 1745.
(o) Musst. Pearee Dayee v. Musst. Hurhunsee Kooer, 19 C. W. E. 127;
Mutasaddi Lai v. Kundun Lai, L. E. 33 I. A. 55. See above, pp. 891, 902.
1068 HINDU LAW. [BOOK III.
have more than one son, my wives shall adopt a son of his " — the
gift to K, is absolute. So long as he is alive, no other can be
adopted, nor can his right as devisee be defeated, whether the
widows perform or decline to perform the ceremonies (p).
Where a person made a will to the effect that two sons should
be adopted in case his pregnant widow should bear a daughter,
and no child was bom, and one of the two to be adopted died, and
the other was not adopted, the latter was held not entitled to take
any property as adopted eon or legatee under the will (q).
A suit to declare void certain deeds of gift and acceptance of a
■child in adoption, brought by the donee against the donor, — the
child not being a party to the suit, — was held not to be maintain-
able. The deeds, it was held, were not necessary to a valid
adoption, and if the deeds were set aside, the adoption, if it had
taken place, might be proved aliunde. If the deeds operated
merely as an agreement to give and take in adoption, and a breach
thereof had occurred, such breach, it was held, would not render
the deeds void, or constitute any ground for setting them aside, or
for declaring them void (r).
2. — Suits as to Eights and Duties of Widow Prior to
Adoption.
A suit to obtain a declaration that a widow is heir of her
deceased husband will lie, though she had authority to adopt.
She does not forfeit her right by her omission or refusal to
adopt (s). It seems she cannot be forced to adopt. Where no
adoption is made " under an authority for the purpose," the
widows having equal rights in the estate may no doubt share it,
making due provision for the maintenance of " the mother and
sister of the deceased husband " (t).
" In the interval then between the death of her husband and
the exercise of the power, the widow's es.tate is neither greater
(p) Nidhoomoni Dehya v. Saroda Pershad Mookerjee, L. E. 3 I. A. 253.
(q) Ahhai Charan v. Dasmani Dasi, 6 Beng. L. R. 623.
(r) Sree Narain Mitter v. Sreemutty Kishen Soondory Dassee, L. R. Supp.
I. A. 149.
(s) Bamundoss Mookerjea v. Musst. Tarinee Dihheah, B. S. D. A. R. for
1850, p. 533; S. C. 7 M. I. A. 169; and Prasannamayi Dasi v. Kadamhini Dasi,
3 B. L. R. O. C. J. 85; Mutasaddi Lai v. Kundun Lai, L. R. 33 I. A. 55.
it) Colebrooke in 2 Str. H. L. 91. See above, pp. 95, 241.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1069
nor less than it would be if she enjoyed no such power or died
without making an adoption. She has the same power, no greater
and no less, to deal with the estate. Such acts of hers as are
authorized and would be effective against reversioners will bind
the son taken in adoption. Such acts as are unauthorized and in
excess of her powers may be challenged by the son adopted or by
any other successor to the estate " {v).
An adopted son is at liberty to question alienations made by
the widow, the adoptive mother, before his adoption. But a
presumption exists in favour of her transactions assented to by
the persons next in succession when they took place (w).
A Hindu widow claimed a share of ancestral property (under an
anumatti patra, or deed of permission to adopt a son, alleged to
have been executed by her husband) on behalf of the son whom
she might adopt. It was held by the S udder Dewanny Adawlut,
that, until the adoption was made, no action would lie, and that
the expression of any opinion as to the authenticity of the deed
was in the present action uncalled for {x).
The possession of a widow (who has authority to adopt) previous
to the adoption is not that of a trustee for the son to be adopted,
60 as to prevent limitation {y) from operating. A widow in Bengal
adopted a boy under a power from her deceased husband in the
course of a suit by her against his unseparated brother. This was
held competent to her, and also the continuance of the suit in her
own name, as that had not been objected to, and she might take
the estate as trustee for her son (z).
A widow does not incur a penalty of absolute forfeiture by an
attempt at a false adoption of a son (a).
If a widow succeeds to her adopted son, and then adopts
(o) Lakshmana Rau v. Lakshmi Ammal, I. L. K. 4 Mad. 160, 164.
(w) Jadomoney Dahee v. Sarodaprosunno Mookerjee, 1 Bouln. 120; Rajkristo
Roy V. Kishoree Mohun, 3 C. W. K. 14, in which many earlier cases are referred
to; Ramakrishna v. Tripurabaij I. L. E. 33 Bom. 88.
(x) Musst. Suhudra Chowdhryn v. Goluknath Chowdree et al., 7 C. S. D. A. K.
143.
{y) Gohin Chandra v. Anand Mohan, 2 B. L. K. A. C. J. 313. See above,
pp. 87, 88.
{z) Dhurm Das Pandey v. Musst. Shama Soondri Debiah, 6 C. W. E. 43,
Pr. Co.
(a) Komul Monee Dossee v. Alhadmonee Dassee, 1 C. W. E. 256.
1070 HINDU LAW. [BOOK III.
again (b) her intermediate alienation is not affected by such
adoption (c).
3. — Suits to Establish Adoption.
A party claiming in Bengal as a son adopted by a widow must
establish by evidence — (1) authority given by the husband to
adopt; (2) his actual adoption by the widow as her husband's
son (d).
A plaintiff who desires, as an adopted son, to recover property,
must sue for it, not for a mere declaration of his status as adopted
son (e).
A vatandar in possession of vatan property may, as such, sue
for a declaration of his adoption, preliminary to his application to
the Collector for recognition of his right to officiate as a vatandar
(under Bom. Act III. of 1874) (/).
An adopted son, who is afterwards discarded, may maintain
a suit to establish his rights. According to the Hindu Law the
suit may be brought on his behalf by any kinsman or friend (g).
This would now be subject to the provisions of the Code of Civil
Procedure (Act V. of 1908, 0. XXXII., rr. 1, 2 and 3) and to the
ruling of the Judicial Committee in Doorga Persad's Case (h).
On an estate descending to an adopted son, and from him to
his widow, a further power to adopt given by the adoptive father
to his widow becomes incapable of execution (i), [except Bengal,
where on the death of the daughter-in-law, the widow's right to
adopt revives (k)]. An adoption under it is void. It does not give
ih) Venkappa v. Jiraji Krishna, I. L. E. 25 Bom. 306.
(c) Gohindo Nath Roy v. Ram Kanay Chowdhry, 24 C. W. K. 183. See
above, p. 349.
(d) CJwwdhry Pudum Singh v. Koer Oodey Singh, 12 C. W. K. P. C. 1;
S. C. 2 B. L. E. P. C. 101.
(e) Ramchandra Narayan v. Krishnaji Moreshwar, Bom. H. C. P. J. 1881,
p. 288.
if) Ramchandra v. Radhabai, Bom. H. C. P. J. 1880, p. 160.
(g) 2 Str. H. L. 79.
(h) L. E. 9 I. A. 27. See above, p. 701.
(t) Pudma Coomari Dehi v. The Court of Wards, L. E. 8 I. A. 229; Krish-
narav v. Shankar Rav, I. L. E. 17 Bom. 164. See above, sec. VII. I. 2 B..
and pp. 870, 878.
(fe) Manikchand v. Jagatsettani, I. L. E. 17 Cal. 518.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1071
to the adopted a right ripening into that of a duly adopted son
when the elder widow succeeds to the property (l).
Where a widow adopts under authority of her husband, the
authority must be strictly proved (w). If the husband's authority
to adopt is verbal, it must be proved by witnesses, the widow's
testimony alone being insufficient (n).
If the husband's authority is in writing, and his handwriting
is proved, the signature of witnesses is unnecessary. Otherwise it
must be proved by witnesses (o).
In a case of inconsistent evidence as to the fact of adoption, the
non-designation of the adopted in a public document as son of the
adoptive father decided the Court against the alleged adoption (p).
In Gangiava v. Rangdngavda (q), the following facts were held
inconsistent with an alleged adoption :
(1) The adoptive mother's name continued in Government
records for lands belonging to her husband, after the alleged
adoption. (2) The adopted acted as deputy under the adoptive
mother. (3) The adoptee assumed his natural father's name after
the date of his alleged adoption (r).
A presumption arises against the genuineness of a deed of
permission to adopt from its not being acted on for seventeen years
after the husband's death (s).
The omission of the usual intimations and ceremonies is a ground
for strong suspicion as to the genuineness of an alleged adoption (t).
The registration of deeds giving power to the widow to adopt
was recommended. When such a deed is not registered, the
(l) See above, sec. VII. I. 2 B. " Relation shall never make an act good which
was void for defect of power." Vin. Abrt. Tit. Relation ';H) 4; Butler and
Baker's Case, 3 Rep. 29a. See, too, Hawkins v. Kemp, 2 Ea. 410.
(m) Ghowdhry Pudum Singh v. Koer Oodey Singh, 12 C. W. R. P. C. 1;
2 B. L. R. 101 P. C. ; 12 M. I. A. 350.
(w) Musst. Tara Munee Dibia v. Dev Narayun Rai et al. 3 C. S. D. A. R.
387; Ry Sevagamy Nachiar v. Heraniah Gurbah, 1 Mad. Dec. 101; 2 Macn.
H. L. 183.
(o) Ry. Sevagamy Nachiar v. Heraniah Gurbah, 1 Mad. S. D. A. Dec. 101.
(p) Musst. Sabitree Daee v. Sutur Ghun Sutputtee, 2 C. S. D. A. R. 21.
(q) Bom. H. C. P. J. 1881, p. 248.
(r) See above, p. 1062.
(s) Chundermonee Debia Chowdhoorayn v. Munmoheenee Dehia, 8 M. I. A.
477.
(t) Sootrugun Sutputty v. Sabitra Daee, 2 Knapp, 287.
1072 HINDU LAW. [BOOK III.
weight of evidence for or against an alleged adoption has to be
compared (v). In the particular case it removed suspicion.
In the absence of strong documentary evidence for an alleged
adoption, the Privy Council preferred the judgment of the lower
Appellate Court to that of the High Court, as it had a better
opportunity of testing the probabilities of the case (w).
Evidence is not necessary of the execution of a permission to
adopt according to the exactness required in the case of a will (a?).
When the Court is satisfied of the power comparatively slight
evidence of the ceremonies will suffice (y).
The identity of a deed of permission to adopt was held suffi-
ciently established by a reference to it in a subsequent proved
deed (z).
The probabilities are in favour of an alleged adoption, where
the document authorizing the widow to adopt bears the genuine
signature of the deceased husband, and the next heir who disputes
the document is shown to be on bad terms with the deceased (a).
In some cases upon a disputed question of adoption, though the
Courts in India held the evidence not sufficient to prove the
adoption, the Privy Council has reversed the decision and decreed
in favour of the adoption (b). Thus the Privy Council decided in
favour of adoption, upon a conflict of evidence as to whether it
took place during pollution or not (c).
A bequest to two persons as adopted sons was held to fail through
the simultaneous double adoption being void (d).
Where the plaintiff claims the fuU rights arising under
(tj) Chundemath Roy v. Kooar Gohindnath; The Collector of Moorshedahad
V. Ry Shihessuree Dahea, 11 B. L. E. 86.
(w) Nilmadhuh Das v. Biswamhhar Das, 12 C. W. E. P. C. 29; S. C. 3
B. L. E. P. C. 27 ; S. C. 13 M. I. A. 85.
(x) See above, pp. 859, 862.
(y) Mohendrolal v. Rookiney Dahey, Coryt. E. 42.
(z) Kishen Shunker Dutt v. Moha Mya Dossee, C. W. E. Sp. No. 210.
(a) Sri Virada Pratapa Raghunada v. Sri Brozo Kishoro Patta Deo, 25 C. W.
E. P. C. 291; S. C. I. L. E. 1 Mad. 69; S. C. 7 M. H. C. E. 301.
(h) Huradhun Mookurjia v. Muthooranath Mookurjia, 4 M. I. A. 414; S. C.
7 C. W. E. P. C. 71 ; Rungama v. Atchama et al., 4 M. I. A. 1; S. C. 7 C. W.
E. P. C. 57.
(c) Ramalinga Pillay v. Sadasiva Pillay, 9 M. I. A. 506; S. C. 1 C. W. E.
25 P. C.
(d) Siddesory Dossee v. Durgachurn Sett, Bourke, 360. Above, p. 877.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 107B
an ordinary adoption, a different form of adoption (i.e.,
dvyamushyayana) cannot be set up (e).
Persons claiming as adopted sons of a widow must prove their
own adoption, and that the widow had possession in her own
right (/) ; so too where plaintiff sues as adopted son of the owner
himself (g) ; but the plaintiff need not in the former case prove how
the widow came into possession {h). A suit to establish adoption
independently of any claim to property can be maintained upon
an institution fee of rupees ten, provided the plaintiff shows
distinctly that he has a cause of action and a right to consequential
relief (i).
A certificate cannot be refused to administer an adopted minor's
estate, though his adoption has never been recognized, for such a
certificate is necessary to clothe any administirator with authoritj^
to sue for such recognition of the adoption of the minor (k).
A certificate of guardianship under Act XL. of 1858 will not
entitle a minor or his guardian, until the adoption is proved, to
interfere with the possession of the estate by the widow of the
deceased who denies the adoption (i).
4. — Suits to Set Aside Adoption.
The Legislature has by Acts VII. of 1870 and IX. of 1871 and
XV. of 1877 and Act IX. of 1908 recognized the right to bring a suit
to set aside an adoption independently of any claim to property (m).
The onus prohandi lies on the adopted son, though defendant,
to prove the validity of the adoption, and not on the plaintiff
suing as heir to prove its invalidity, even though he alleges fraud,
and adduces no evidence in support of it {n).
(e) Musst. Edul Koonwar v. Koonwar Dahee Singh, 5 Dec. N. W. P. 341.
(/) Chutturdharee Lall v. Musst. Parhutty Kowar, 12 C. W. E. 120.
ig) Bhairabnath Sye v. Maheschandra, 4 B. L. E. A. C. J. 162 ; Ishur Panday
V. Musst. Buskeela Koonwar, B. S. D. A. E. for 1858, p. 471.
(h) Chutturdharee Lall v. Musst. Parhutty Kowar, 12 C. W. E. 120.
(i) Baji Balvant v. Raghunath Vithal, Bom. H. C. P. J. for 1876, p. 142.
(fc) Chintaman v. Sitaram, Bom. H. C. P. J. 1879, p. 566.
(/) Panch Cowree Mundul v. Bhugohutty Dossia, 6 C. W. E. Misc. 47.
(m) Kalova v. Padapa, I. L. E. 1 Bom. 248, per Westropp, C.J. In the same
case the points for consideration on a question of adverse possession by a widow,
and on one of the validity of an adoption, are set forth with a reference on the
latter point to earlier cases.
(n) Tarini Charan v. Saroda Sundari Dasi, 3 B. L. E. A. C. J. 145; S. C.
11 C. W. E. 468; Roopmonjooree v. Ramlall Sircar, 1 C. W. E. 145; Krifa
H.L. 68
1074 HINDU LAW. [BOOK III.
The presence of a brother of the adoptive father at an adoption
and his associating the adopted son as such with him in a suit
prevents his sons from afterwards denying the adoption (o).
The following grounds have been held insufficient for setting
aside an adoption, once effected : —
(1) Its not having taken place at the usual residence of
parties (p) ; (2) Its having taken place long after the death of
adoptive father (q) ; (3) Want of permission from Government (r) ;
(4) Tonsure having been performed in the family of birth after
gift and acceptance but before fire sacrifice (s) ; (5) Existence of
a nearer relation than adoptee available for adoption (t) ; (6) Want
of presence of the mother (natural or adoptive), of burnt offerings,
or of drinking saffron water by other than adoptive father, amongst
Sudras (v).
A has two sons B and C. B marries D and dies before A.
C dies unmarried after A. E, as widow of A, relinquishes her
rights in favour of D and her adopted son F. This being sufficiently
proved, E cannot question F's adoption (w).
A stranger having no interest in the matter has no right, even
with the consent of the presumptive reversionary heirs, to sue
for a declaration that an adoption made by a widow is invalid (a;).
Although a suit, to contest an adoption, made by a Hindu widow
of a son to her deceased husband, may be brought by a contingent
Moyee Dehia v. Goluck Chunder Roy, 4 C. W. E. 78 ; Bissessur Chuckerhutty v.
Ram Joy Mojoomdar, 2 C. W. E. 326; Lai Kunwar v. Chiranji Lai, L. E.
37 I. A. 1; S. C. I. L. E. 32 All. 104; Chandra Kunwar v. Narpat Singh, L. E.
34 I. A. 27 ; S. C. I. L. E. 29 All. 184. See above, sec. VI. A. 6.
(o) Nidhoomoni Debya v. Saroda Pershad Booker jee, L. E. 3 1. A., at
pp. 253, 266; Chintu v. Dhondu, 11 Bom. H. C. E. 192. The principle of
estoppel was followed in the similar case, Sadashiv v. Hari, ibid. 190. See
above, sec. VI. A. 6.
(p) Bhasker Buchajee v. Narro Ragoonath, Bom. Sel. E. 24.
(q) Ibid.
(r) Ibid.
is) Musst. Dullabh De v. Manu Bibi, 5 C. S. D. A. E. 50.
it) Gocoolanund Dass v. Wooma Daee, 15 B. L. E. 405; S. C. 23 C. W. E.
340; Sree Brijbhookunjee Maharaj v. Sree Gokoolootsaojee Maharaj, 1 Borr.
181, 202 (2nd ed.).
(v) Alvar Ammal v. Ramasawmy Naiken, 2 M. S. D. A. E. for 1867;
Sootrugun Sutputty v. Sabitra Dye, 2 Knapp 287 ; S. C. 5 C. W. E. P. C. 109.
(w) Musst. Ladoo v. Musst. Oodey Kowree, N. W. P. S. D. E., Pt. II. 1864.
p. 365.
(x) Brojo Kishoree Dassee v. Sreenath Bose, 9 C. W. E. 463 ; S. C. 8 C. W. E.
241.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1075
reversionary heir, yet it is not the law that any one who may have
a possibihty of succeeding to the estate of inheritance held by the
widow for her life is competent to bring such a suit. The right to
sue must be limited. As a general rule, the suit must be brought
by the presumptive reversionary heir — that is to say, by the person
who would succeed to the estate if the widow were to die at the
time of the suit. But it may be brought by a more distant heir,
if those nearer in the line of succession are in collusion with the
widow, or have precluded themselves from interfering.
If the nearest heir had refused, without sufficient cause, to
institute proceedings, or if he had precluded himself by his own
act or conduct from suing, or had colluded with the widow, or
had concurred in the act alleged to be wrongful, the next presum-
able heir would be, in respect of his interest, competent to sue.
In such a case, upon a plaint stating the circumstances under
which the more distant heir claimed to sue, a Court would exercise
a judicial discretion in determining whether he was or was not
competent, in that respect, to sue, and whether it was requisite or
not that any nearer heir should be made a party to the suit.
In a suit to have an alleged adoption set aside, the plaintiff,
a minor, through his guardian, claimed to sue, on the strength of
being the adopted son of (the husband of) a daughter of a brother
of the father of the deceased, under whose authority the adoption
was alleged to have been made by the widow, the defendant. The
Judicial Committee, without deciding that as an adopted son this
minor had the same rights as a natural-bom son, and without
deciding that he would have been entitled, in default of nearer
relations, to succeed to the estate of inheritance, after the death
of the widow, pointed out, that he could only have succeeded as a
distant bandhu {y), and that he had not a vested, but at most a
contingent, interest. Their Lordships held, that there being, in
fact, heirs nearer in the line of succession than this minor, the
grounds of his competence to sue in respect of his interest,
assuming that interest to exist, should have been made out in
the manner above indicated (z). The conclusions in the suit
referred to were, that a suit to set aside an adoption by a widow
may be brought — (1) by a presumptive reversionary heir; (2) by
an heir a little more distant, in case the former act in collusion
(y) See above, pp. 458, 466.
{z) Rani Anand Kunwar et al. v. The Court of Wards, I. L. E. 6 Cal. P. C.
764. See above, p. 466.
1076 HINDU LAW. [BOOK III.
with the widow; possibly (3) by an adopted son of a deceased
brother's daughter's son, as a bandhu [a).
An obscure association of a boy as adopted son of a deceased
person, in a suit brought by his widows to recover the husband's
share in joint property, was held not conclusive of the boy's
adoption. A reversioner was allowed to prove its not having taken
place (6).
In a suit on a ground of existing right of inheritance and for
possession and mesne profits in which the claims to relief are
abandoned, the Court will not allow a change of claim and declare
an adoption invalid (c).
A power to adopt imposed the condition of the consent of the
husband's mother. A suit was brought against the adopted son,
but the objection of non-fulfilment of the condition precedent of
consent was not raised until the case was taken in appeal to the
Privy Council. It was held then too late (d).
Ignoraniid legis non excusat, it was said, is a maxim applicable
to the Hindu law of adoption (e). There may, however, be an
excusable ignorance, as when the Judicial Committee said : — " The
concurrence of the widow, and the various acts of acquiescence
attributed to her, would be important if they were brought to
bear upon a question which depended upon the preponderance of
evidence; but if the facts are once ascertained, presumptions
arising from conduct cannot establish a right which the facts
themselves disprove. The appellant is a Hindu female. So long
as she is acting without tlie guidance of a disinterested adviser her
acquiescence in an alleged adoption or will ought not to prejudice
her. In such a case as the present it was hardly to be expected
that she would be capable of distinguishing between an adoption
in fact and a legal adoption, or between a will in fact and a valid
will. The acts attributed to her are really no confirmation of the
(a) Ibid.
(h) B. Sheo Manog Singh v. B. Ram Prakas Singh, 5 C. S. D. A. E. 145.
(c) Ry Rajessuree Koonwar v. Maharanee Indurjeet Koonwar, 6 C. W. R. 1.
(d) Rajendronath Holdar v. Jagendronath Banerjee, 14 M. I. A. 67; so also
Musst. Mulleh v. Purmanund, 4 Dec. N. W. P. 201.
(e) Radhakissen v. Sreekissen, 1 C. W. R. 62. Ignorance of the law does
not relieve from a liability, but it operates no further. See per Blackburn, J.,
in Reg. v. Mayor of Tewkesbury, L. R. 3 Q. B., pp. 629, 635. See also per
Lord Westbury in Cooper v. Phibbs, L. R. 2 E. and I. A., at p. 170. Jagan-
natha in Col. Dig., Book II., Chap. IV., T. 54, and the judgment of the Judicial
Committee in Periasami v. Periasami, L. R. 5 I. A. 61, 76.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1077
respondent's case, as every one of them upon which reliance is
placed might equally have been done with respect to a legal or
an avoidable adoption " (/).
An acquiescence arising from ignorance is not binding, though
the ignorance is of the law applicable to the particular case (g).
So too consent given by the first adopted son to an arrangement of
his father under which the second adopted son was allotted certain
property would not, it was ruled, be binding on the first adopted
son, if he gave the consent in ignorance of his right, or if the
father departed from the arrangement to the complete disinherison
of the first son himself (h).
An assent obtained by a widow on a representation of an
authority from her husband will not avail as against the sapinda
heirs. The assent, too, being moved by self-interest, was held
insufficient (i).
5. — Suits in which Adoption is an Incidental Question.
An adoption de facto must be supposed to be valid until set
aside {k). An objection that an adoptee was the eldest son of his
natural father was rejected in special appeal, because though
raised it was not pressed in the lower Courts, nor taken specially
in the petition of special appeal (I).
A case in which a conveyance was absolute, unless the grantor
should adopt a son, but in that case to be subject to redemption,
was held a sale subject to conversion into a mortgage during the
vendor's life, but to become irredeemable on his death (m).
A widow may resist an ejectment brought by a person whom
she has recognized as adopted son on tlie ground of the invalidity
(/) Tayammaul v. Sashachalla Naiker, 10 M. I. A. 429.
ig) See Rangamma v. Atchamma, 4 M. I, A. 1; Beauchamp v. Winn, L. K.
6 E. and I. A. 223; Thomson v. Eastwood, L. E. 2 A. C. 215, and per Sir G.
Jessel, M.R., in Lacey v. Hill, L. R. 4 Ch. D., at p. 546.
(h) Sudanund Mohapattur v. Bonomallee, Marshall, 317.
(i) Karunabdhi v. Gopala, I. L. R. 7 I. A. 173, 177. Savigny denies the
generally nullifying effect of error. See his System, vol. 3, App. VIII., and
in the same sense Colebrooke, Book II., Ch. IV., T. 54 Comm.
(k) Nunkoo Singh v. Purm Dhun Singh, 12 C. W. R. 356.
(l) Joy Tara Dossee v. Roy Chunder Ghose, 1 C. W. R. 136. See above,
sub-sec. IV.
(m) Subhahhat v. Vasudevbhat, I. L. R. 2 Bom. 113.
1078 HINDU LAW. [BOOK III.
of the adoption, though her acknowledgment has been acted on
by the authorities (n).
A plaintiff sued as widow of an adopted son for property of the
adoptive father, and also on tJie ground of devise to the son. The
adoption was held invalid according to Hindu Law, yet the High
Court held that as the language of the t-estator sufficiently indicated
the person who was to be the object of his bounty, that person was
entitled to the property, although the testator conceived him to
possess a character which, in point of law, could not be
sustained (o). In a similar case it was held by the Judicial
Committee that according to the true construction of the testa-
tor's will there was a gift of property to a designated person,
independently of the performance of ceremonies (p).
6. — Suits and Proceedings Consequent on x\doption.
In granting a certificate under Act XXVII. of 1860 to an adopted
son, a nephew of the deceased, the Judge ought to look into the
fitness as well as the propinquity of the adoptee (q).
After adoption, the father had a son bom to him. In a partition
he gave the adopted boy a larger share than he was by law entitled
to receive. The father then married a second wife, and had by
her several children. These, it was held, could not contest the
above disposition in favour of the adoptee (r).
Documents of the like tenor were executed by a man and his
adopted son by which the property of the former was made over
to his wife for life, without power of alienation, and a succession
was secured to the adopted son. This was construed as a family
settlement, giving to the son an estate in remainder, not as giving
to the wife as a widow such an estate as if there had been no
son (s).
The title of a second (invalidly) adopted son could not be
maintained, it was held, on the ground of acquiescence by the
(n) Thakoor Oomrao Singh v. Thakooranee Mahtah Koonwar, 2 Agra Kep.
103. See above, sub-sec. 4, p. 1076.
(o) Jivanee Bhayee v. Jivu Bhayee, 2 M. H. C, E. 462.
(p) Nidhoomoni Debya v. Saroda Pershad, L. E. 3 I. A. 263.
iq) Nunkoo Singh v. Purm Dhun Singh, 12 C. W. E. 366.
(r) Yekeyamian v. Agniswarian et al. 4 M. H. C. E. 307. See above, pp. 73,
648, 709.
(s) Musst. Bhagbuttee Daee v. Chowdry Bholanath Thakoor, L. E. 2 I. A. 266.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1079
first, as this had proceeded on an assertion by the father of the
second son's right. Whether the first son's ratification would have
the effect in such a case of previous consent was thought doubtful ;
but at anj' rate there had not been the knowledge which would
make it binding (t). The first adopted son, however, was allowed
to retain all he could claim against the father's disposition only on
condition of giving up to the second all over which the father had
unfettered power.
An adoptee, like a natural-born son, cannot claim to have a
specific share declared and defined, but is only entitled to a decree
declaring that the property is ancestral (v). A suit by the son of
a first adopted son having been brought as heir of the second
adopted son, the plaintiff cannot in appeal change his ground of
action, treat the second adopted son as trespasser, and seek to
recover property as belonging to his ancestor (w).
A son adopted pendente lite, to be bound by a pending suit
affecting his adoptive father's ancestral property, must be made a
party to the suit (cc).
A representation made by one party for the purpose of influencing
the conduct of the other party (as to marriage, giving in adoption,
&c.), and acted on by him will in general be sufficient to entitle
him to the assistance of the Court for the purpose of reaHzing
such representation {y).
After the death of an adopted son, a widow alienated part of
the property and subsequently adopted again. It was held that
the second adopted son took subject to the alienation (z).
(t) Rangamma v. Atchamma, 4 M. I. A. 1, 103. On the doctrine of
Acquiescence see Beauchamp v. Winn, L. E. 6 E. & I. App. 233. On Election,
see per James, L.J., in Codrington v. Lindsay, L. E. 8 Ch. A., pp. 578, 592.
(v) Heera Singh v. Burzar Singh, 1 Agra H. C. E. 256. He cannot claim
definition without partition, as the shares may vary through births and deaths,
&c.
{w) Gopee Loll v. Musst. Chandraolee Buhoojee, 11 B. L. E. P. C. 391; S. C.
19 C. W. E. P. C. 12. The adoption here of the second son was invalid
according to Hindu Law, as the first had left a son. See above, p. 843.
(x) Ramhhat v. Lakshman Chintaman Mayala, I. L. E. 5 Bom. A. C. J.,
p. 630.
iy) Bhala Nahana v. Parbhu Hari, I. L. E. 2 Bom. 67.
(z) Gobindo Nath Roy v. Ram Kanay Chou^dhry 24 C. W. E. 183. Eefer-
ence is made to Bhoobun Moyees Case, 10 M. I. A. 165; see Sreemutty Deeno
Moyee Dossee v. Doorga Pershad Hitter, 3 C. W. E. 6 Misc. E. Above, p. 349.
1080 HINDU LAW. [BOOK III.
A widow redeems a mortgage of her husband and sells the
property at a profit. She then adopts a boy, and in the deed of
adoption agrees to let the boy have the property " when released."
The purchaser is said to have attested the deed of adoption. It
was held that the attestation does not bind the purchaser either
as to an agreement of resale or as to the price for which the
property was to be sold (a.).
When a widow applies under Act XL. of 1858 for a certificate in
respect of an estate alleged to belong to an adopted son, the
questions for inquiry are : (1) minority of the boy ; (2) fitness of
the petitioner for management (b). A certificate under Act. XL.
of 1858 is rightly given to the guardian, where there is no doubt
of the fact of adoption, the objector, who does not claim to be
tile guardian, having no locus standi (c). A certificate of
guardianship was refused when the vaHdity of the adoption was
disputed (d).
An adoptive mother, as next heir, was held entitled to the
management of a lunatic's estate in preference to a uterine
brother (e).
A lady who has adopted a son may, as his guardian, be served
with an order of foreclosure under the Bengal Law (/).
" In a Nuggur Panchaet case ... in which both parties
and Panch were Brahmans and Kulkarnis, the widow of an
adoptee obtained a decree for the possession of a vatan given to
him by the adopter (by the deed of adoption), in opposition to a
claim set up by the nephew of the latter according, to blood " (g).
A widow has not really such an interest in the appeal or such
a locus standi as entitles her to insist that an appeal should go
on, though the minor party, her adopted son, in whose name the
suit was brought, after coming of age, wishes to withdraw
from it (h).
A widow, claiming under the will of her husband, is the proper
(a) Ramhhat v. Ramchandra, Bom. H. C. P. J. 1879, p. 426.
(h) Brohmo Moyee v. Ghettur Monee, 8 C. W. R. 25.
(c) Kisto Kishore Roy v. Issur Chunder Roy, 15 C. W. R. 166.
(d) Above, pp. 911—12.
(e) Huree Kishore Bhya v. Nullita Soonduree Goopta, 18 C. W. R. 340.
(/) Ras Muni Dihiah v. Pran Kishen Das, 4 M. I. A. 392. See now above,
p 624.
ig) Steele, L. C, p. 188.
(h) Ry Bistoopria Putmadaye v. Nund Dhull, 13 M. I. A. 602.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1081
person to obtain a certificate under Act XXVII. of 1860, notwith-
standing the objection of a person alleged to be the adopted son
of deceased (i).
A, alleging himself to be an adopted son, opposed the application
for the grant of certificate under Act XXVII. of 1860 to B, who,
irrespective of the alleged adoption, would be the legal lineal heir
of the deceased ; the Court before which the application was made
refused to grant the certificate on the ground that sufficient prima
facie evidence existed establishing the validity of the adoption.
On appeal it was held that the Appellate Court, concurring with
the opinion expressed by the Court of first instance in respect of
the factum of the adoption, would not be justified in setting aside
the decision on the ground that such Court was wrong in entering
into and deciding the question as to the validity of the adoption.
It was laid down that on an application for the grant of certificate
under Act XXVII. of 1860, opposed by a party alleging a
preferential title to it, the Courts should adjudicate the question
of title with a view to determine which party has the preferential
right to the certifica.te (k).
A permission to adopt during the life of the son cannot have
effect given to it (I).
A widow, by virtue of the authority given by her husband's will,
adopted a son and afterwards discarded him for misbehaviour.
The boy, on attaining maturity, applied for the withdrawal of the
certificate and for the grant of one to him. The validity of the
will, it was said, could only form the subject-matter of a regular
suit. It could not be contested in a summary proceeding (m).
Where a will gave the testator's widow permission to adopt and
made provision for the adopted son entering into possession only
after her death, providing further that if the adopted son died
unmarried the estate should pass to the testator's nearest sapinda
(i) Bissumbhur Shaha v. Sy Phool Mala, 21 C. W. R. 31; i.e., until he
establishes his adoption.
(k) Sheetanath Mookerjee v. Promothonath Mookerjee, I. L. E. 6 Cal. 303.
Eeference was made to Kali Coomar Chatter jee v. Tara Prosunno Mookerjee,
5 Cal. L. R. 617; Musst. Anundee Kooer v. Bachoo Sing, 20 C. W. R. 476;
In re Oodoychum Mitter, I. L. R. 4 Cal. 411 ; Koonj Behary Chowdhry v. Gocool
Chunder Chowdhry, I. L. R. 3 Cal. 616.
(I) See above, p. 865.
(w) Issur Chunder v. Pooruna Beehee, 4 C. W. R. Misc. 16. It would be
hard to find any authority for a widow's " discarding " a son really adopted.
She is dependent on him, not he on her. See above, pp. 1017, 1033.
1082 HINDU LAW. [BOOK III.
gnyati, it was held that the gift or bequest was, according to the
doctrine laid down in the case of Tagore v. Tag ore, void and of
none effect, because the nearest sapinda was a person who might
not be in existence at the death of the testator, and one who could
not be ascertained at that time (n).
" The case of Baijnath Sahai v. DesputUj Singh (o) was this.
A Hindu testator died, leaving B, alleged to be his adopted son,
and C, who would be his heir in default of adoption, and made a
will of which B applied for probate, and it was held under the
Succession Act and Hindu "Wills Act that creditors of C were not
parties having any interest in the estat^e of the deceased, and were
therefore not entitled to oppose the grant of probate. Their
Lordships think this was a right decision " (p).
7. — Judgments and Evidence in Previous Cases.
A decision by a competent Court upon a question of adoption is
not a judgment in rem or binding upon strangers, nor is a decree
in such a case admissible as evidence against strangers (q), nor is
it binding on any reversionary heir not a party to the suit, nor
upon an adoptee in a suit by a reversionary not a party to the
former suit (r).
The plaintiff's adoption, it was said, having been in issue in a
former suit, though the defendant was not a party to it, and
decided in the plaintiff's favour, was to be held good against the
defendant until he got proof against the adoption (s) or could prove
fraud or collusion (t). But in Padma Coomari Dehea's Case (v)
it was held that a former judgment against the validity of an
adoption was not res judicata when the parties had been changed,
(n) Ramguttee Acharjee v. Kristo Soonduree Dehia, 20 C. W. E. 472. See
above, p. 212.
(a) L. E. 2 Cal. 208.
(p) Rajah Nilmoni Singh Deo Bahadoor v. Umanath Mookerjee, L. E.
10 I. A., pp. 80, 86.
iq) Kanhya Lall v. Radha Churn, 7 C. W. E. 338; Lai Kunwar v. Chiranji
Lai, L. E. 37 I. A. 1 ; Chandra Kunwar v. Narpat Singh, L. E. 34 I. A. 27.
(r) Jumoona Dassya v. Bamasoondari Dassya, 25 C. W. E. 236 ; S. C.
L. E. 3 I. A. 72. There is not in fact a recognized process by which an
adoption can be established or set aside as to all persons.
(s) Seetaram v. Juggohundoo Bose, 2 C. W. E. 168.
(t) Rijkristo Roy v. Kishoree Mohun Mojoomdar, 3 C. W. E. 14.
(v) L. E. 8 I. A. 229.
S. VIII.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1083
but that the decision of the point of law on which the judgment
had turned was binding as a precedent. A suit to set aside the
adoption of the defendant, in which the adoptive mother was
made a party, was held barred by Section 2 Act VIII. of 1859,
because the same issue as to the validity of the adoption had been
tried substantially in a former suit between the same parties as to
a portion of the property now at issue (w). A plaintiff suing for
property belonging to a Hindu widow on the ground of his being
an adopted son of her husband's brother is not barred by a decision,
in respect of other property, that he was not such (x).
In a suit between the adopted son of a landlord and the adopted
son of his tenant, the decree being in favour of plaintiff by a
competent Court, an appeal to the Privy Council or an omission
to take rent for many years or to eject defendant, did not, it was
held, alter the relationship of landlord and tenant between the
parties (y).
The denial by A in an enquiry under Bombay Kegulation VIII.
of 1827 that B was adopted son of C, does not absolutely estop A
from asserting in a subsequent suit that C adopted B (z).
A deposition of a plaintiff, in a suit against defendant, a widow
(managing for her minor first adopted son), is not admissible in
evidence under Sec. 33 of the Evidence Act in a subsequent suit
by the defendant widow as mother and guardian of a second
adopted son, as that son is not a representative in interest of the
widow who was party to the former suit, but sues in his own
right (a).
(w) Kristo Beharee Roy v. Bunwaree Loll Roy, 19 C. W. R. 62. See now
Act V. of 1908, sec. 11.
(x) Kripa Ram v. Bhugwan Doss, 10 C. W. R. 100. The parties having been
the same would be bound by a prior adjudication on the same question of right
or jural relation between them, though the physical objects of their contention
were different, see Act V. of 1908, sec. 11; Krishna Behari Roy v. Musst.
Brojeshwari Chowdhrani, L. R. 2 I. A. 285. A question of limitation decided
in a suit as to one piece of property was disallowed in a suit as to another in
Maharaja Rajender Kishen Sing v. Raja Saheh Pershad Sein. P. C. 21,
May, 1874.
iy) Huronath Roy v. Golncknath Chowdhry, 19 C. W. R. 18. Limitation
is computed from the determination of the tenancy, and the time is twelve years.
Act. IX. of 1908, Sched. I., Art. 139.
(z) Pandurang Ballal v. Dhondo Ballal, Bom. H. C. P. J. 1876, p. 209.
(a) Mrinmoyee Dahea v. Bhoohunmoyee Dabea, 15 B. L. R. 1 ; S. C.
23 C. W. R. 42. The decision may be questioned on the ground that there
must be a continuity of the estate and of representation of it. The other party
must, of course, be the same in both suits to make his deposition admissible.
1084 HINDU LAW. [book III.
A certificate may be granted to a widow, as guardian of her
minor son, to collect her husband's debts, notwithsttanding that
her husband's adoption has been set aside (b).
8. — Limitation.
The limitation prescribed for a suit for a declaration of the
validity of an adoption is six years from an interference with the
rights of the adopted son as such (c). The Bombay (d) and the
Madras (e) High Courts hold tliat Art. 119 of the Limitations Acts
(now Act IX. of 1908, Sch. I.) would apply even though the suit
be for the recovery of real property and not for a declaration of the
validity of the adoption provided the plaintiff in order to succeed
had no other title but the establishment of his adoption. The
Calcutta (/) and the Allahabad (g) High Courts, on the other hand,
lay down that Art. 119 does not apply where the suit is for
possession of land, although the consideration of the validity of
an adoption is involved. In a suit for a declaration that an
adoption was not made or was not valid, the same period of
limitation runs from " when the alleged adoption becomes known
to the plaintiff " (h). The Judicial Committee have held that an
omission to bring a suit within the time prescribed by Art. 118
for a declaration that an alleged adoption was invalid, or never,
in fact, took place is no bar to a suit for recovery of the property (i).
The Calcutta (k) Allahabad (/-) and Madras (m) High Courts take
(b) Nitto Kallee Debee v. Obhoy Gobind, 5 C. W. E. Misc. E. 10.
(c) Act IX. of 1908, Sched. I., Art. 119. The intention must, it seems,
be to bar a suit on the ground of adoption in respect of the rights interfered
•with. An adoption cannot be cancelled by a mere seizure of an insignificant
piece of property on a denial of adoption which remains unchallenged only
because it is not worth while to challenge it,
(d) Gangabai v. Tarabai, I. L. E. 26 Bom. 720.
(e) Ratnamasari v. Akilandammal, I. L. E. 26 Mad. 291.
(/) Jagannath Prasad v. Ranjit Singh, I. L. E. 25 Cal. 354.
ig) Lali v. Murledhar, I. L. E. 24 All. 195; CJiandania v. Salig Ram,
I. L. E. 26 All. 40.
(h) Ibid., Art. 118. See above, p. 895, note (b).
(i) Thakur Tirbhurwan v. Raja Rameshar, L. E. 33 I. A. 156; Muhamed
Umer Khan v. Muhamed Niazuddin Khan, L. E. 39 I. A. 19.
(k) Ramchandra Mukerjee v. Ranjit Singh, I. L. E. 27 Cal. 242; Parbhu Lai
V. Mylne, I. L. E. 14 Cal. 401.
(I) Natthu Singh v. Gulab Singh, I. L. E. 17 All. 167.
(m) Velaga Mangamma v. Bandlamudi, I. L. E. 30 Mad. 308.
S. Vm.] SUITS AND PROCEEDINGS CONNECTED WITH ADOPTION. 1085
the same view ; but the Bombay High Court (n) is of opinion that
a suit for possession of the property in question under the
circumstances would be barred.
Where a widow, after the death of her son, adopts a boy under
an alleged will of her husband, and a sister of the natural son sues
for the inheritance on behalf of her son, disputing the will and the
adoption, the cause of action arises on the death of the widow, not
on the date of the adoption. An acknowledgment of the sister,
previous to the birth of her son, admitting the adoption, does not
bar the son's right (o); and he may sue within three years from
attaining his majority. A reversioner's right to sue for possession
by setting aside an adoption by a widow accrues on the death of the
widow and not on the date of an adoption (p). Possession by
strangers as adopted sons of a widow is not adverse against the
reversioners so long as she is alive {q). As against an adopted son,
suing for his share in the ancestral estate, limitation begins on
demand and refusal (r). The time now runs from when a person
excluded is aware of the exclusion (s).
(n) Strinivasa v. Hanmant, I. L. K. 24 Bom. 260, 266, F. B. ; Laxman v.
Ramappa, I. L. E. 32 Bom. 7; Srinivasa Sargerav v. Balwant Venkatesh,
I. L. E. 37 Bom, 513
(o) Tarini Charan v. Saroda Sundari Dasi, 3 B. L. E. A. C. J. 145; S. C.
11 C. W. E. 468. See note (h). In Bombay the daughter would have to sue in
her own right, which precedes that of her son. See above, pp. 96, 99.
(p) Srinath Gangopadhya v. Makes Chandra Roy, 4 B. L. E. 3 F. B. ; Musst.
Raj Koonwar v. Musst. Inderjeet Koonwar, 13 C. W. E. 52; Tarini Charan v.
Saroda Sundari Dasi, 3 B. L. E. A. C. J. 146 ; S. C. 11 C. W. E. 468. Comp.
note (h), p. 1084.
(g) Srinath Gangopadhya v. Mahes Chandra, 4 B. L. E. 3, F. B.
(r) Ayyavu Muppanar v. Niladatchi Ammal, 1 M. H. C. E. 45; 3 M. H. C. E.
99.
(s) Hari v. Maruti, I. L. E. 6 Bom. 741 ; Act IX. of 1908, Sched. I., Art. 127.
APPENDIX.
Translations of Yajnavalkya, II. 47, 50, and 175, with the
Commentary on these verses of the Mitakshara. By Dr. A.
FUHRER.
Yajnavalkya, II. 47 (a).
**A son need not pay, in this world, money due by his father for
spirituous liquors, for lustful pleasures, for losses at play ; nor what
remains unpaid of a fine or toll ; nor anything idly promised. ' '
Vijnanesvara's Commentary.
A debt incurred by a drinker of spirituous liquors, or under the
influence of lust for the sake of enjoying a woman, or caused by losses
at play, what remains due of a fine or toll (6), and money idly promised,
that is, promised to impostors, bards, wrestlers, or the rest; for it is
declared in a Smriti : " Fruitless is a present given to an impostor, a
bard, a wrestler, a quack, a knave, a fortune-teller, a spy, or a robber" ;
all such debts incurred by the father, his son or other heir need not pay
to the vintner and the rest. In the above clause, it is mentioned that the
remaining portion of a fine or toll should not be paid ; by that is not to
understand that he has to pay the whole sum, if it is to be paid. For
Usanas says in his Smriti : ' ' The son need not pay the fine or the balance
of a fine, a toll or the balance of a toll, or [any debt of the father] which
is not proper " (c). Also Gautama [XII., 41] says : ** Money due by a
surety, a commercial debt, a toll, debts contracted for spirituous liquors,
a loss at play, and a fine shall not involve the sons, that is, they shall
not be paid by the sons [of the debtors]." In this way it has been
mentioned which kinds of debts should not be paid.
(a) See above, p. 582.
(b) Haradatta in his Commentary on Gautama, XII. 41, explains sulka " fee
due to the parents of the bride." The same does Jagannatha, see Col. Dig., I.,
202.
(c) According to Viramitrodaya, 1. 106, p. 1, debts for wmes and spirits are
improper debts.
1088 HINDU LAW. [BOOK III.
Yajnavalkya, II. 50 {d).
" The father being gone to a foreign country, or deceased [naturally or
civilly], or afflicted with an incurable disease, the sons or their sons must
pay his debt, but, if disputed, it must be proved by witnesses."
Vijnanesvara^s Commentary.
If the father is dead [naturally deceased, or having become a religious
anchorite], or has gone to a distant abode in a foreign country, before
having paid the due debts, or if he be afflicted with an incurable disease,
the debts contracted by him must be paid by the sons and grandsons, even
if he has left no property, on account of their being his sons and grand-
sons. The order of paying is this : In the absence of the father the son,
in the absence of the son the grandson ; but if the son or the grandson
were to deny, that which has been proved by witnesses and the rest
[i. e. documents] should be discharged. In the first clause, it is said that
the debt should be paid off in case the father has gone to a foreign
country ; but as to the question when it should be paid off, the date fixed
by Narada is to be admitted. For Narada says in his Smriti [I. 3, 14] :
" The father, paternal uncle, or elder brother, having travelled to a
foreign country, the son [or nephew, or younger brother even] shall not
be forced to discharge the debt, until twenty years have elapsed." After
the death of the father, the son if he be apraptavyavahara [i.e. if he has
not yet reached full age], is not bound to pay the debt : otherwise, if he
be fully grown up, he is to discharge it. The time has also been fixed by
Narada, for he says [I. 3, 37, 38a] : " A child is comparable to an embryo
up to his eighth year ; a boy is called youth (pauganda) up to his
sixteenth year. Afterwards he is of age and independent, in case his
parents be dead." He is not bound to pay the debt, even after the death
of his parents, though he be independent, being still a boy. For it is
said in a Smriti: "If he have not yet reached full age — apraptavya-
vahara— and be independent, he is not bound to pay the debt, because the
independence depends on his age, and that age is to be counted by qualifi-
cations and the years." The term apraptavyavahara includes also those
that are forbidden to proclaim and to summon (before a court of law).
For a Smriti says : " Apraptavyavaharas, messengers, those that are
ready to give alms, ascetics, or those immersed in difficulties should not
be proclaimed to or summoned by the king." Therefore it is declared in
another Smriti : " When the son has reached his full age — praptavya-
vahara — he should, not caring for his own interest, discharge the debt in
such a way that he may not go to hell." As regards the performance of
funeral rites (Sraddha), even a boy is admitted. For Gautama [II. 5]
says: "Except the religious performances in honour of the deceased
father, the boy is not allowed to recite Vedic texts anywhere." By the
plurality of sons and grandsons spoken of in the first clause it is to be
understood, that if there are many, they should discharge the debt each
in proportion to his own share, if living separated. And if living united.
(d) See above, p. 582.
APPENDIX. 1089
the head of them all should pay it from the common stock in the propor-
tion of the different debts (gunapradhana). For Narada [I. 3, 2] says :
" After the death of the father, the sons, living separated, shall discharge
the debt according to their respective shares, and if living united, he
who has taken the burden [of a paterfamilias] upon himself, shall pay
it." Though, in the first clause, it is said in general that the sons and
grandsons shall discharge the debt of the father, still it should be paid
by sons with the interest as the father does ; the difference being that the
grandson should only pay the princijDal and not the interest. For
Brihaspati says : " The sons must pay the debts of their father, when
proved, as if it were their own [i.e. with interest] ; the grandson has to
pay only the principal, while the great-grandson shall not be compelled to
pay anything unless he have assets." When proved, signifies when
established by the testimony of witnesses. Thus has been shown the
liability for debts of the debtor, his son, and his grandson, and to whom
it belongs to pay when they exist together.
Vijnanesvara's Commentary on Yajnavalkya, II. 175 (e).
On the Resumption of Gifts. Now, according to the lawful and
unlawful way, I mention at large the chapters on law (vyavahara) styled
"Non-Resumption of Gifts" (dattanapakarma) and "Resumption of
Gifts " (dattapradanika). Narada [II. 4, 1] thus mentions the form of
dattapradanika : " When a man, having unduly given a thing, desires to
recover it, it is called " Resumption of Gift," which is a title of judicial
procedure. Resumption of gifts is that title of administrative justice
according to which a man wishes to take back a gift which has not been
made in a due form [that is, in a prohibited mode] i.e. that title of law by
which a gift is withdrawn which has been made unduly. That title of
law is styled " Non-Resumption of Gifts " (dattanapakarma) by which a
gift cannot be taken back when once given by ways sanctioned by laws.
Gifts are four-fold ; for Narada [11. 4, 2] says : " In civil affairs, the law
of gift is four-fold : what may be given (deya), or what may not be given
(adeya) ; and what is a valid gift (datta), or what is not a valid gift
(adatta)." An alienable gift is that which is fitting the danakriya (the
action of giving gifts), and which is sanctioned by law. An unalienable
gift is that which cannot be given as a gift either because one cannot own
it or because its giving is not sanctioned by law. An alienated gift is that
which is given away and cannot be taken back because of its being given
by one when in a sane state. All unalienated gift is that which can be
taken back though once given. Now I mention briefly the four-fold gifts.
Yajnavalkya [II. 175] says: "Without injuring the family estate, per-
sonal property may be given away, except a wife or a son ; but not the
whole of a man's estate, if he have issue living ; nor what he has promised
to another." That may be given away which is one's self-acquired pro-
perty and which has been left after the expenses for the maintenance of
the family have been defrayed, because the support of the family is
necessary. For Manu [VIII. 35] says : " Aged parents, an honourable
(e) See above, p. 695.
H.L. 69
1090 HINDU LAW. [BOOK III.
wife, an infant child must be maintained even by means of a hundred
trespasses." Thereupon it has been stated that alienable gifts are of one
kind only, namely, as regards personal property. What is bailed for
delivery, what is let for use, a pledge, joint property, and a deposit;
these five have been proved, on the contrary supposition, to be unalienable
gifts. For Narada [II. 4. 4, 5] mentions eight unalienable things : " An
article bailed for delivery, a thing borrowed for use, a pledge, joint pro-
perty, a deposit, a son, a wife, the whole estate of a man who has issue
living, and [of course] what has been promised to another : the sages
have declared unalienable even by a man oppressed with grievous calami--
ties." By saying "these five things are unalienable" is not to be
understood that we have only a (mere) claim on these things, since a wife,
son, and what has been promised are included in the term " personal
property " ; but that personal property may be given away, excepting a
wife, or a son. If then a son, or grandson, or the like survive, the whole
property shall not be given away. For it is said in a Smriti : '* He who
has begotten a son and performed his tonsure shall provide for his susten-
ance." If he has promised a golden piece or the like to somebody, he is
not allowed to keep his promise (at the cost of privation to his offspring).
INDEX.
ABDUCTION
gives no marital right, 793n
ABEYANCE
of an estate not tolerated, 179
ABSENCE,
what constitutes, 626
of a coparcener does not bar partition, 626, 742
of a co-sharer, sale during, 6276
gift possible during, 635fc
in case of partition, 626
See Absentee; Emigration
ABSENT HUSBAND,
his wife's competence in adoption. See Adoption V., 948
ABSENTEE,
partition not postponed for the return of, 627
share of must be set apart on partition, and may be deposited witli
his son if fit to take care of it, 626, 730, 731, 742
returning, may claim repartition, 626
his share made up by deductions, 722
descendants of may claim to the seventh degree, 70, 627, 753/
represented is bound by partition, 627
See Partition; Distribution of Property
ACCEPTANCE,
indications of, in cases of adoption, 962
See Adoption II., 825, 826g ; IV., 947, 949; VI., 957, 958, 960,
961, 963, 994, 998, 1011
ACCEETION,
made with aid of ancestral property becomes ancestral property, 654
ancestral property, recovered by coparcener, is generally an and
partible, 662
ACCUMULATIONS,
how dealt with on partition, 665
by father, when ranked as his separate property and when not, 665,
666, 667
1092 INDEX.
ACCUMULATIONS— continMeJ.
out of allotments in a Zamindari are separate property of allottee and
not rendered joint property by Kulachara, 153, 154, 682
by a widow, 298, 299
property purchased by widow out of from her husband's property
goes along with the property, except where there is an intention
to appropriate separately, and in Mithila, 299, 300, 301
See Savings, 154; Widow
ACHAEA, 30
ACHAEYA. See Preceptor, 128, 134, 451, 468
inherits from pupil, 658
ACKNOWLEDGMENT
of debt, 94
See Adoption VIII. 1084 ; Manager, 571
ACQUIESCENCE
of coparceners in alienation by manager binds them, 678, 688
immovable property recovered with of coparceners ranks as ancestral
property, 662
in partition is conclusive, exceptions, 649a, h
in holding a lease from a single sharer is presumed after some years
from partition, 712
long in possession by a mortgagee from father binds son, 576
in adoption by female, 963
See Adoption VIIL 1077
in Will by female unadvised, through misrepresentation or ignorance,
963, 1077, 1079
See Ignorance; Estoppel
ACQUIEEE. See Acquisition, 173; Property, 664, 666
other than manager entitled to a double share, 668q
ACQUISITION
of ownership, means of, 173
wife's belongs to her husband, 85, 278, 286
wife's by prostitution belongs to her husband, 483
by father and grandfather inherited by the son alone, 324
See Son
by members of joint family, presumed to be joint property, 663
separate s. See Property, Separate and Self- acquired, 660gf, 664
See Burden of Proof ; Distribution of Property
ACTION. See Cause of Action, 585gf
Suit
ACTS
pointing to dissolution of union, but not conclusive, 636, 637
INDEX. 1093
ACTS IN EXTREMIS,
closely ecrutinized. See Adoption III. 847.
ADHIVEDANIKA, 258p, 259, 277
is a kind of Stridhana, 352, 353
a woman may eject her husband from a house given to her by him
as , 287a;
ADHYAGNIKA, 277
is a kind of Stridhana, 257, 352, 353
ADHYAVAHANIKA, 277
is a kind of Stridhana, 258
ADMINISTEATION OF MINOR'S ESTATE, 622/, 6247i
See Manager; Widow; Guardian; Minor; Adoption VIII.,
1073, 1080, 1081
ADMINISTRATOR,
suing, to set forth his qualification, 221p
had formerly no title against heir, 220Z
estate now vests in , 220
See Executor
ADMISSIONS,
effect of (Adoption), 1076
cannot be taken advantage of by stranger to agreement, 189n
ADOPTED GRANDSON See Grandson by Adoption.
ADOPTED GREAT-GRANDSON,
succession of , 67, 604
ADOPTED SON. See Adoption; Descendants
of father and of (begotten) son, their relative rights, 354
See Adoption VII.
and begotten son, their relative rights, 67Z, 355, 368
See Adoption VII.
ADOPTION,
I. Sources of the law of , 779s5
comparative unimportance of in early ages, 779
the Veda of little importance as a direct source, 779
origin of , 792
importance of custom as a source, 787
II. Its Nature and Place in the Hindu System
has attained importance by slow degrees, disallowed in many castes,
789, 803, 1065
fosterage preferred to in several castes, 828, 1065
amongst lower castes recent and but partially allowed, 823, 828, 1065
1094 INDEX.
ABOVTlCm— continued.
motive for , 789, 792, 807, 811, 812, 825, 841, 957, 974, 975
a single is a fulfilment of religious duty where the Samskaras
are performed, 1012
no kriya amongst Jains, reason, 932fc
is for husband not for wife, 489, 841
place of formerly filled by levirate and the appointment of a
daughter, 790«;, 793, 833, 834
the adopted is a " reflexion of a begotten son," who must be born of
one whom the adoptive father could have married. Eule con-
fined to daughter's son, sister's son, mother's sister's son, who
cannot be adopted except by Sudras, 410, 800, 801, 801fe, 828,
841, 916, 919, 957
orphans cannot be adopted, 806p, 8322
a parent alone may give in and to a father or his wife, 807cc
an adopted son cannot be given in , 807a;
effect of by uncle, 809
law of in China, 810g
in Eome, 814mj, 820g, 82Sy
at Athens, 821t, 838w;
effect of after investure (below IV., VII.), 810n
filial connexion depends on the Samskaras, 838s
reasons why not more common, 812/i
recommended but not enjoined, in Bombay and Madras, widow may
adopt without express power, but cannot be compelled to do so,
and does not forfeit her right by her refusal, 813, 814, 372
coparceners cannot be compelled to assent to an , their assent
necessary according to some authorities, the High Courts,
814, 814m?, 895
widow must adopt the boy designated by her husband, proper only
when the birth of a son becomes very improbable, not indis-
pensable to the attainment of salvation, 813t, 862, 814, 832z,
840, 814a
age for making is that of discretion or capacity, 841d, 845
personal defects (except blindness or dumbness) of the son born may
justify, so does insanity, 816, 817, 944
wife of a disqualified person may adopt, by custom, though not by
the stricter law, 545, 817
of an only son is valid, 818, 819, 926, 927
the doctrine of factum valet in , 818, 927
once complete is indefeasible (below VII.), 835a3
loth parents ought to concur in giving in , in some instances,
the head of the family may perhaps give as such, 817, 818
mother's assent not indispensable, Slid, 946ss
of the eldest son valid (below IV.), 820
while an adopted son exists invalid, valid according to Sir T.
Strange, 820, 821, 822, 842
See below III.
simultaneous of two sons void, 822, 877
Sudra's capacity to adopt discussed, 823
INDEX. 1095
ADOPTION— contmMed.
IS (perhaps) complete by gift and acceptance, for all classes (below
VI.), essential ceremonies in , laukika , irregular ,
a boy defectively adopted is regarded as a das or slave (below
VII.), 825, 825w, p, 826, 826g, 827, 836
difference between customary and religious, 827
by dancing women and real, 834A;
Homa sacrifice marks the completion of , 835aj
severs the boy entirely from his family of birth, other effects
of , 835ss, 836
See below VII.
begotten son takes precedence over adopted, 8363
second when adopted son declines to fulfil his duties, 838
sanction of Government and grantors of inams, to , 836n, 854
blood-connexion of the adopted son, 838
Eoman . Influence of the church on , 836n
III. Capacity to adopt and its exercise
duty to adopt, 839, 1012
all males may adopt, exceptions, 840
different opinions as to by women without authorization, ih.
for husband, not for wife, 841, 855
funeral rites are objects of , and inheritance only a secondary
consideration, 840, 841, 854
of wife's sister's son allowed, 841
proof of (see below VI.), 84:1k
pendente lite, 842
by unmarried persons, in South Maratha country, by a Brahmachari,
a sonless widower, a convert, 814w;, 822, 823, 828, 842, 842x
alienation before birth or cannot be set aside, 843r
in life of son or grandson is invalid, exceptions, 814, 815, 816,
821, 842, 843, 843d, 844
double exceptionally allowed, 8i3g
during wife's pregnancy allowed, 844
adopted son takes place of begotten one, 844o
See VII.
a supplementary process, 844p
insanity of the son enables father to adopt, other disqualifications, 844
by daughter-in-law, 326, 354, 845
by father-in-law, 845
qucBre, whether expulsion from caste of a son justifies a second ,
842, 843, 8445, 844
Capacity in relation to age, 845, 935
minor's capacity to adopt, 823, 846
Capacity in relation to intelligence, 847, 848
Capacity as affected hy hodily state, 847, 848
Capacity as affected hy the religious state
by asceticism, pollution, according to statute, expulsion from caste of no
effect, persons disqualified for inheritance cannot adopt, though
allowed by some castes, 847, 848, 849, 546o
1096 INDEX.
ADOPTION— contmwed.
Rules of particular castes, 849
by Nagar Brahmanas, 867mj
Vaisyas, 849
Sudras, ib.
Jains, 849, 857, 869
Sarogees, 969, 891, 919
Bhateles, 787, 850
Talabda Kolis, 829/, 841o
Garasias, 850
Sannyasis and Gosavis, 850
Prabhus, 850Z, 918
Lingayats, 917, 918
by delegation, by means of wife, widow, daughter-in-law, wife of
a lunatic, 850, 851
to the great-grandfather, 852
.45 to assent and permission
wife's consent to not indispensable, ib.
as to assent of parents and brothers to an , 853
assent moved by self-interest deemed insufficient, 1077
sanction of the Court of Wards, 853
permission of Government not essential, only intimation necessary, 854
as affecting assessability of land, ib.
Adoption by Females
maidens cannot adopt, 855
or be adopted. See Daughter, 790«;, 833, 834
a wife or widow only can adopt for husband, 855, 859, 861, 862, 867
a wife only with distinct authority from husband, or under implied
delegation, 855
conditions of effective delegation, 856
Adoption by a Widow
permission of husband necessary, real or assumed, how replaced,
856, 857, 860, 861, 867, 894, 895, 943t, 946, 1037
amongst Sudras, 856
in Bengal, 857
Madras, ib.
Mathila, 857
the N. W. Provinces, 857, 858
Age of capacity to authorize an , 858, 859
not affected by Act IX. of 1875, Sec. 3, 859w
postponement by will of capacity beyond majority, questionable, 859a7
son united with father may authorize , 859
under authority needs no sanction of relatives ; but without authority
needs it in undivided family, 859, 867, 870
father-in-law's sanction sufi&cient, 859
authority good though insufficient as a will, 859
during husband's absence, ib.
authority and assent requisite to such , amongst the Poona
Brahmanas, according to the Bengal law, the Mithila law, the
Benares and Maratha school, 860, 861
INDEX. 1097
ADOPTION— contmued.
forms of authority variable, deeds of how construed, evidence of
execution, express authority sufficient and binding, 861, 862
Positive command to adopt, duty to adopt, claim under the deed to
follow the , directions contrary to law inoperative, and
permission to adopt one as co-heir void, 862
when choice is prescribed, 862
rule in Bombay and Bengal, of a boy unborn, when he is named,
when person adopted dies, 863, 865
Qualified discretion, 863
when the authority prescribes classes alternatively, ih.
Complete discretion as to person, widow's duty, 864
Conditional authority, ih.
according to the law of Bengal, ib.
in Madras, 865
Implied authority, 850, 865
Express or implied dissent of husband, positive prohibition, implied
prohibition, assent assumed where not excluded, its necessity
affirmed and denied, 866, 867, 868, 869
the Maratha doctrine as to widow's authority, unfettered power of a
widow of a divided member, doctrine of the Viramitrodaya,
assumed permission only to give in Bengal, express authority
of husband not needed, in the Dravida country, and among the
Jains, 867, 868, 869, 870, 871, 872, 895, 868d
son adopted by mother-in-law yields to one adopted by daughter-in-
law, 870
a conscientious obligation of the widow, 871
her choice in limited, 871, 872, 1012
obligation not enforceable, 872, 903
from religious motives valid, 871
duty of Sapindas of husband, 871gf, 895
adopting widow must be a free agent, 972, 890, 891
Time for by a widow, 871, 872
not precisely limited, 862, 867
preference for of husband's Sapindas, 873
of strangers not invalid, ib.
Authority in case of two or more widows, 874
the eldest has a prior right, unless disqualified, or she has resigned
to the younger, 390, 874, 875
when each has a direction to adopt, 874
Circumstances in which a widow may adopt, 874, 875
Successive adoptions, 876, 881
authority to adopt on death of son limited, 875, 876, 1061, 1037
" if necessary " to be understood, 877
with consent of kinsmen, 877, 881, 884, 894
a presumptive heir not allowed to challenge a second , 876
Simultaneous s invalid, 822, 877
by woman having step-son is void, 489, 87iy, 875
Circumstances barring adoptions by widow
as in the case of the husband, 878, 886
1098 INDEX.
ADOPTION— contmtted.
can an defeat a vested interest? Question discussed, 350, 878,
879
exceptions, 881
principles of Hindu law as to perpetuation of the sacra, 879, 880,
883, 884
opposed to by a mother to her son, except on death of son an
infant, need of the sanction of unseparated kinsmen, 880, 881 —
884
case where a united son dies childless before his father, when
father-in-law can and cannot adopt, on his death this right
passes to his son's widow, widow of the last coparcener may-
adopt, but cannot control other widows, male relatives only
have control, this is the doctrine of the Nirnayasindhu, the
Samskarakaustubha, the Dharmasindhu, the Vyavahara
Mayukha, 882, 883, 883£, 884, 888
authority inoperative against son's successor, 885, 886, 887
the right co-exists with union of family, 889
ruling to the contrary, ih.
by predeceased son's widow, though his sister survives, ib., 1041
Widow's capacity as affected by age, 890
maturity generally necessary, ceremony at least after maturity, by
infant widow when directed by husband, Sd2z, 890, 891
amongst Sarogees, 891
under pressure invalid, ib.
Capacity affected by personal conditions, ib.
intelligence required as for other religious acts, 891, 943t
widow disqualified by leprosy and unchastity, 891, 892
by widow under puberty exceptional, ib.
none by untonsured widows of Brahmanas, ib.
Capacity annulled by remarriage, 892
Consent, when and when not required, ib.
none where there is express authority, 892, 894
in case of two widows, 893
consent of mother-in-law not necessary, 894
consent of husband's kinsmen when necessary, 894, 895
law in Bengal, 894, 895, 896
Madras, 894, 895, 896
Bombay, 871, 872, 883, 896, 897, 901
Dattaka Mimamsa exacts living husband's authority, 895
what assent sufl&ces, 896, 897
effect of kinsmen's dissent not absolute, 898
Consent of the caste to , 898, 899, 943t
meaning of jnati, 898
Assent of persons affected in interest by an , 899
its necessity results from widow's dependence, 898, 899
not a right of property, 899a
Consent of Government to , 901 — 902
its confirmation cures defects, 902
Omission or postponement of , 903
INDEX. 1099
ADOTTIOl^— continued.
widow not constrained to adopt, 872, 903
pregnancy or right to adopt does not postpone inheritance, 903
pretended s how dealt with, ih.
Atiomalous adoptions, 904
by mother succeeding her son, 904, 905
superseding an illegal by daughter-in-law? 905
by daughter-in-law, 905, 906
by daughter-in-law in preference to mother, 92t, 384, 880, 904, 905
by grandmother succeeding her grandson, 906
Quasi-adoptions , 906
by Gosavis, 824, 834—835
the Kritrima , 907
palak-putra, 906, 1065
according to Alya Santana law, 907
by Kalvantins, 8S4k, 907
ty dancing girls, 907
by courtesans, ib.
IV. Fitness for , 908
As affected by caste, ib.
adopted to be of equal caste with the adopter, 830, 908, 909
of a Sudra son allowed by the Viramitrodaya, 909d
Connexion in family, 909
a brother's son supplies failure of offspring, ib.
proximity to be regarded in , 909, 910
meaning of proximity, 909A;
illustrations, 911
proximity recommended, not obligatory, 910, 911, 913
when two persons are equally related, ib.
use of genealogies, ib.
the gotra invocations, ib.
worship of the deities, ib.
the Sastras in require nearness, identity of caste and gotra, ib.
Sudras can adopt from different gotras, ib.
as to by an elder of a younger brother, 832^
such not allowed, 912, 917
not even of a half-brother, 912/^, 921
of an illegitimate son, 912
Relation through the natural father, 912
in case of a widow adopting, 913
order of choice in Punjab, the Dekhan, Poona,Khandesh, 913, 913o,914
son of a half-brother may be chosen, uncle not limited in to
nephew, preference a matter of discretion, but not allowed by
Sastris to widow, except in case of injunction by husband, or
assent of husband's relatives, 914, 915
by Sudra widow, 915
when nephew refused, ib.
Relation through the son's yiatural mother
usually makes adoption impossible, except among Sudras, but allowed
in case of necessity, 916/i, 919
1100 INDEX.
ADO'PTIO^— continued.
in case of a putrika-putra (see above II.), 916
son of a daughter, sister, or mother ineligible for (see above
II.), 916, 918, 919
contra, 919
and son of a mother whom adopter could not marry, 800, 916
but only in the higher castes, 917
factum valet not applicable, ih.
son of a sister-in-law may be adopted by a Brahmana, 942
of sister's son invalid, 916h, 917
son of father's brother's daughter unfit for , 941c
sister's son unfit in the Dravida and Andra country, N. W. Provinces,
Punjab, Maithila, and among Prabhus, 917, 917a, 918
of husband's brother's grandson valid, 918
of first cousin's daughter's son upheld, ib.
of husband's sister's son? ib.
invalid not to be questioned by a sister's son, ib.
of daughter's son in South Maratha country, 919
amongst Jains, ib.
of son of niece, 926
the son of second cousin, of wife's sister's son, of first cousin, paternal
or maternal, 917, 919, 920
Relation between the son to be adopted and the adoptive mother
restrictions imitative, 920
the doctrine of a possibility of union between adoptive mother and
real father, ib.
by widow, of her brother's son valid, 922
of her uncle's son not valid, 921
of wife's brother allowed, 921
a half-brother cannot be adopted, 922
connexion between real and adoptive mothers no obstacle to , ib.
Family connexion amongst Sudras
among the lower castes, influenced by the practice amongst the
Brahmanas, the Sudras strictly have no sacra, relaxation in
favour of Sudras, consanguinity no obstacle, 922, 923, 924
a brother's or sister's or daughter's son eligible for , 410, 924, 925
of one of the last two a duty, 924, 925
amongst Vaisyas (Madras), Jains, Lingayats, 924
of sister's son by Wanis, 925
invalid in Bengal, 924^
allowed in Maithila, ib.
of daughter's illegitimate son, of mother's sister's son valid among
Sudras, of sons of female blood relatives, of nearest relatives
not obligatory, of uncle or an elder forbidden, by a Mhar of
cousin's son, of Asagotras, from illegitimate branch of the
family, 925
Relation of the son to his family of birth
of only son, eldest son, an orphan, son self -given, 806p, 807, 818,
820, 926, 947
giving in by an elder brother condemned, 832, 926
INDEX. 1101
ADOPTION— contmued.
no formula for transferring an adopted son, 926
of an only son by paternal uncle or his widow, 808, 927
m the N. W. Provinces, Madras, 818, 926, 927
principle of factum valet applied, 927
and occasionally in Bengal, in Bombay, 927, 818, 926
under special caste custom, ib.
sole remaining son deemed an only son, ib.
among the Lingayats, 927
only the giving of an eldest son is prohibited, ib.
of only son of a brother in Maithila, 928
as a dvyamushyayana, 926, 927
an agreement at necessary to constitute a dvyamushyayana, ib,
presumption of this in by a Brahmana from a different
gotra, 928
similarly in of an only or eldest son, 928p
the presumption in such s, ib.
nullifies the rule that an only son can be given only to his
uncle, 928t
Eldest son
case of eldest distinguished from that of an only son, gift of either
opposed by the Mitakshare and the Vyavahara Mayukha, the
Datt. Mimamsa and the Datt. Chandrika silent as to eldest,
■his allowed in Bombay, Bengal, Madras, the opinions of
the Bombay Sastris, 819, 820, 928, 929, 930, 931
of a second son not invalidated by the death of elder, 930
gift of youngest son disapproved in the Dakhan, but not condemned by
any authority, ib.
gift of youngest son even to a man of a different gotra is not for-
bidden, 931
Family of birth — amongst Sudras
propinquity gives rise to restrictions, ib.
of an only son among Sudras allowed, 932
the Lingayats allowed, 927
by a Sudra in Bengal, 932
Fitness as affected by Personal Qualities— Sex
daughters are not to be adopted, 932
except by special caste rules, 933
of a sister, illegal, 933^:
a sister's daughter or son cannot become a putrika-putra, 933
Fitness for Adoption — Age
opinions vary as to the proper age of the boy to be adopted, 934, 937
so do caste rules, 934
he should be young, ib.
amongst Brahmanas, Kshatriyas, Vaisyas, Sudras, ib.
age of majority, ib.
the native lawyers as to the age of , ib.
the rule in the N. W. Provinces, Bombay, 934, 935
Juniority of Adopted Son to Adoptive Father
1102 INDEX.
ADOPTION— co7?ifn7ied.
the adoptee should be junior to the adoptive father, but not to the
adopted mother, 935
Birth after Adoptive Father's Death
a boy not born in the life-time of adoptive father can still be adopted
by his widow, ih.
Identity or Difference of Family or Gotra
sense of " gotra " when used in connexion with the lower castes, ib.
in s by Sudras no obstacle or preference arises from consan-
guinity, 936
when gotras differ, ib.
when they are the same, ib.
the order of preference amongst Brahmanas, 936ss
the son of a uterine brother, any sagotra-sapinda, asagotra sapinda,
a sapinda of the same gotra, of a different gotra, ib.
the ceremonies of jatakarma and chudakarana, ib.
a bhinna gotraja to be adopted before his upanayana. Contra, ib.
the samskaras not to have been performed in from a different
gotra, 936, 937
of a married sagotra in the Dekhan allowed, 937
limitation of age necessary in case of of a stranger, ib.
Fitness as affected by Bodily Qualities
leprosy, lameness, or blindness disqualifies for , 937, 937z
Mental Qualities
idiotcy or insanity disqualifies for , 938
Religious and Ceremonial Qualities
inseparableness from family of birth discussed, 937, 938
whether a married man adoptable, 938, 9395, 941, 943
exception, 944
upanayana an obstacle to , 938, 939s, 941, 943
exception, Bombay, 943
should be before tonsure, 830
except within the same gotra, 831
after tonsure, 939
tonsure no obstacle in Bombay, 939s
nor initiation, 938
Sastris' views in cases of , 938
to be before the boy is five years old, ib.
reason, 943t
effect of tonsure barring how undone? 939
after five years when valid, 943t
a sagotra may be adopted even after five years of age and tonsure, 940
Investiture with the Sacred Thread
to take place before boy's munj, 940, 942
when gotra differs, 940
a Brahmana boy cannot De adopted after munj, 941
except from sagotras, 941, 943
such an confers no heirship, 941
rule in Madras, ib.
INDEX. 1103
ADOPTION— coiitmMed.
a Brahmana, after chudakarna and the upanayana not disqualified
for in Bombay, 941, 943
of a boy eight years old and before initiation held valid in Bengal, 942
so when the chuda was performed, ib.
contra notwithstanding an agreement, ib.
Fitness — as affected by Marriage
after marriage impossible, 942, 943
contra according to the Poona Sastris, 942, 943
in case of a sagotra, 943
the rule in Bengal, Madras, 944
a married man of the same gotra only can be adopted, 943
of such a married man having a family admissible, 942, 943t
married men generally fit for amongst Sudras, 831
but not among other castes, ib.
the rule in Bombay, Bengal, Madras, 943, 944
Fitness — Place in Caste of the Adopted Son
exclusion from caste prevents an in the Dekhan, ib.
Fitness — In case of Anomalous Adoptions
no variance in the choice of the boy, ib.
defective filial relation between dvyamushyayana and his adoptive
father, ib.
of a sister's or a daughter's son as a dvyamushyayana, ib.
in the Chetty caste is necessary to constitute the sons of
daughters lawful heirs, 945
Fitness — In case of Quasi-adoptions
in the kritrima form of , ib.
no restrictions on the choice of the son, ib.
his express consent necessary, ib.
of an only son is lawful as a kritrima, 445m
no restriction on the choice of the boy in s in use in Gujarat, 945
of a daughter or foster daughter not recognized, 945
no in families governed by the Alya Santana law, 946
amongst kalavantins a matter of free choice, ib.
V. — Who may give in Adoption and when
The capacity limited to the Parents, 946 — 950
even in case of an adult, 832
concurrence of both parents necessary to gift of a son in , 943t,
946
after father's death mother competent to give in , 961
mother has no control over the gift by husband in , 947
widow's capacity to give in , 947, 948
recognized by Vasishta and other Smritis, 947, 949
husband singly may give in , 947
wife under husband's delegation may give in , ib.
and a widow without his authority, 948
doctrine of the Mitakshara, ib.
Balambhatta favours the right of females, ib.
mother's assent desirable not indispensable, ib.
the rule laid down by the Vyavahara Mayukha, 949
1104 INDEX.
ADOPTION— contmMei.
Vasishtha authorizes woman's independent acceptance of a son, ib,
and a gift by her, ib.
the view of the Viramitrodaya, ib.
widow's authority conditioned by husband's spiritual interests, 950
grandfather or brother cannot give in , ib.
orphan cannot be adopted, ib.
Gift by the Father. — Father's personal competence
leper (in Bengal) can give in , ib.
the practice in Bombay, ib.
Circumstances in which the Gift may be made
a gift of a son morally objectionable unless made in distress, ib,
but a gift in by a competent parent always effectual, 951
a gift is not invalid through absence of poverty, ib.
grounds of the limitation of authority to give, 952g
Qualifications of the Power
consent of mother desirable, 451
intelligent boy's assent to necessary, 951
inferred from his submission, 952
information to relatives necessary, ib.
their consent and that of caste merely desirable, ib.
consent of Government thought necessary to s by Saranjamdars,
&c., ib.
Gift by the Mother — as a Wife — by express permission of Husband
wife's giving and taking in without husband's permission
prohibited, ib.
his express permission thought necessary for a gift, ib.
Husband's implied assent
husband's express permission probably not indispensable, 952
but no gift against his express or implied will, ib.
conditional assent, 953
assent of an insane husband needless, ib.
Gift by Widow
after father's death mother's power to give dependent on authority
from him, ib.
or a discretion subject to his will, ib.
the narrower view of widow's capacity illustrated, 954
widow's rights most restricted in Bengal, ib.
assent of father to a gift presumed there when there is no dissent, ib.
and in Bombay except where he would be spiritually prejudiced, ib.
in Madras assent of relatives replaces that of deceased husband, ib.
assent of elder son desirable and once thought sufficient, 955
the widow being spiritually dependent on elder son, ib.
Gift by persons incompetent — By Adoptive Parents
gift by adoptive parents not warranted, ib.
such a gift guarded against by Roman Law, 455t)
gift by real parents implied in prescribed ceremonies, ib.
Persons commissioned by the Parents
parents can neither authorize gift after their decease, nor can they
INDEX. 1105
ADOPTION— contmued.
during their lifetime except religious ceremonies to
Brahmans, 857, 956
By Grandfather, Brother, dc.
grandfather cannot give when the boy's father is dead and mother
living, ib.
gift by brother alone not upheld, 935o, 956
the practice in the Punjab, 9566
a brother cannot give in even with father's consent, 956
Self -Gift
the only son, of one deceased cannot give himself in , ib.
the Svyamdatta not to be recognized in the kaliyug, ib.
the kritrima or karta putra an exception, ib.
such 8 allowed only in Maithila, ib.
VI. The Act of Adoption — Its Character and Essentials
is essentially a religious act, 957
the rights of property connected with sacra, ib.
ceremonies of putreshti and datta homa important, ib.
among the mixed and lower castes, ib.
no purely religious rite absolutely indispensable, 958
formerly gift and acceptance alone requisite, ib.
a,nd still sufficient even amongst Brahmanas in Madras, 959
in Bombay essential ceremonies insisted on, ib.
essential ceremonies enumerated, 959, 993, 994
sacrifice not essential, 826, 826q
omission of ceremonies a cause of suspicion, ib.
The Act of Adoption — as to the Gift
gift of boy with any reserve not valid, 959
the ceremonies are intended to effect a complete transfer, 960
the patria potestas of adoptive father restricted under the Eoman
Law, 960m
mere engagement does not constitute , 960, 964
nor invalidate a subsequent ceremonially made, 960, 964
gift and acceptance essential, 960, 961, 962, 967
actual transfer necessary, 960
particular formula not prescribed, ib.
nor that it should be in writing, ib,
expressed intent to give and take only necessary, ib.
declaration only by the adoptive father ineffectual, 961
delivery with requisite declaration completes , ib.
gift must be expressly in adoption, 962
adopted son to be given, not sold, 961
assent of natural father legally necessary, 962
but mother's only morally necessary, ib.
assent of adoptive father alone suffices, ib.
salutation as an indication of acceptance, 847, 963/
The Act of Adoption — as to the acceptance
acceptance a cause of filiation, 962
evidence of giving and taking necessary, 963
free consent of giving and receiving parents indispensable, ib.
H.L. 70
1106 INDEX.
ADOPTION— contn? Med.
gift and acceptance not to be replaced, ex. gr. by education and
nurture, even among Sudras, ib.
The Act of Adoption — Assent of the Son
adopted to be of the same class and affectionately disposed, 964
never taken against his will, 832, 964
Contract of Adoption
agreement to adopt survives the parties, 964
husband's reference to it authorizes wife to adopt, ih.
such agreements not specifically enforced, ih.
association by adopted son of another with himself does not con-
stitute, ib.
Proof of the transaction
principles of evidence of , 965
strong evidence necessary to displace widow or daughter, ib.
writing not necessary, 854, 968
husband's permission being proved slight proof of ceremonies
required, 965
not so conversely, 966
satisfaction of requirements of Hindu law must be proved, ib.
performance of extraneous sacraments not sufficient, ib.
nor mere acquiescence of widow, ib.
proof of actual failing, long possession of no avail, ib.
so as to mere residence and general recognition, ib.
nurture as a foster-child is not adoption, 967
requirements as to proof not technical, ib.
Presumption in favour of Adoption
presumption in favour of when arises, 967, 968, 969
performance of ceremonies to be presumed, 968
presumption when is opposed to law, 969
subsequent conduct does not make that an which was not one,
969c
of sapinda without ceremonies pronounced valid, 969
brother preferred to sister's son acknowledged without ceremonies, 512
Estoppel
presumption in favour of an invalid when countenanced, 969,
970
recognition by one of another as his son creates estoppel, 970
and admission of the title of an adopted son, ib.
so do acts inducing adoptive father to believe in the validity of an
, ib.
acquiescence in an and association with the boy deemed
sufficient, ib.
in Madras mere consent to an held an estoppel, ib.
acquiescence in an through mistake no estoppel, 971
and cannot validate an invalid , ib.
widows completing an act of held bound by it, ib.
Ratification
ratification of by widow or male sapindas, ib.
cannot set up a void , 972
IXDEX. 1107
ADOPTION— conttwMerf.
doctrine of ratification not applicable to such a case, 972t
Limitation
to suit for declaring an invalid, 972
omission to sue does not validate a void , ib,
status not lost by particular omission to sue, ib.
Terms annexed to Adoption
rights by how far variable, 1876
subject to condition of defeasance impossible, 973
so as to mancipation under the Eoman Liaw, 9736
but terms as to property are annexed to , 974
commonly by widows adopting, ib.
Terms, how far binding on the adopted son, effect given to them in
Bombay and Madras, must be reasonable, disapproved by
Sastris, held invalid by Privy Council, son adopted as an adult
bound to fulfil accepted terms, assent of adopted son to con-
tingent defeasance void, terms made in s by males, Koman
law as to such terms, limitations annexed to s considered
null by the Sastris, as ex. gr. that adopting widow should have
management, son bound only morally; and not in case of waste,
such terms annexed in kritrima s, and capable of ratification
by son at majority, usage sanctions terms for protection of
widows, husband may annex terms to his permission to adopt,
or make dispositions which affect an , with reserve for
wife and daughter, under a will limiting the boy's estate, 974,
975, 975g, 975r, 976, 977, 978, 980, 984
by widow with husband's instructions thought to invalidate his
will, 978
the adopted takes by inheritance, not devise, 979
accompanying terms written or oral, ib.
terms held binding in Madras, 980
a compromise of sapindas' claims upheld, 979i/
widow (in Bombay) may reserve part, 980
husband's limitations of estate of widow and adopted son recognized
in Calcutta, 981
if accepted by boy's real father, 981x
they may give the widow a life interest, 981
analogous to settlement, 981fc
opinions of the Sastris, 981
" absolute control " may mean only management for the son, 981i
questions arising from uncertainty as to the person to be adopted, 981
by a sonless man does not affect previous disposal of property, 596gf,
982
but limits testamentary power, though not in respect of self-acquired
property, 981, 982
use of a mrityu-patra, 982
adopted son should on theory take estate as an aggregate, 982, 985
but widow may impose protective terms, 983, 984
whether dowered widows adopting must necessarily defeat their own
estate, 984
1108 , INDEX.
ADOPTION— contmwed.
grounds of the capacity discussed, 984, 985
the older authorities agree with the Sastris, 985
the recent ones agree with the usage in Bombay, ih.
cases discussed, 985, 986
Colebrooke's opinion, 986
Assent as a valuable consideration
assent of boy to be given is a valuable consideration, 907, 987
as against giving family, 987
receiver, ih.
natural parents not to contract for their own benefit, ih.
nor can sapindas, ih.
persons who must attend at an enumerated, 988
analogous practice in Rome, 988g
persons to be invited at an enumerated, 988
Persons taking part in the act — The Parents giving
the giver and receiver to be present, adopter must personally take the
boy, mother's presence not indispensable, deed insufi&cient to
constitute , declaration of gift can be made by the giving
parent only, parents need not consult relatives, corporeal delivery
of boy may be made by deputy, 988, 989
The Parents taking
husband and wife should be present, and a Brahmana to make
oblation to fire, 989
or wife alone under delegation, ih.
facts indicating delegation, 990
when one of the adoptive parents is dead, ih.
no when both are dead, ih.
Presence of the Child given necessary, ih.
he may dissent, ih.
Presence of Relatives
to be sought but not indispensable, 990 and note ih.
Anomalous Adoptions
in quasi s no forms necessary except expressed assent, 991
in kritrima s consent of the boy essential, ih.
and of boy's parents, ih.
External conditions — Puhlicity
public transfer and religious rites requisite to , ih.
notice of to sagotra-sapindas and to the Raja or chief local officer
enjoined, ih.
deed to be signed by the relations, ih.
such intimation and publicity not absolutely essential, 992
Time for Adoption
an auspicious day, ih.
declaration by daylight, ih.
Place for Adoption
usual place of residence desirable, not necessary, ih.
so of sacrifice in adopter's house, ih.
Ceremonies constitutive — Amongst Brahmanas
demand, invitations, notice, gift, sacrifice, investiture, ih.
INDEX. 1109
ADOPTION— contmued .
putreshti not essential to , 993, 995
rites prescribed by Vyav. Mayukha, 993
simple forms ordained by Vasishtha, 994
forms regulated by custom, ib.
economy of forms favoured by tlie Courts, ib.
whether mere gift and acceptance enough not certain, ib.
datta homa thought essential, 852, 994, 995
not in case of adoption of brother's son or of a boy of same gotra,
995, 999
not amongst classes imitating the Brahmanas, 999
isolated exceptions amongst Brahmanas, ib.
Jala Sankalpa, 989, 995
placing in adopter's lap, 847n, 995
sniffing the head, Aghrana, 847n
mere declarations pronounced insufficient, 995
so of performance of obsequies, ib.
Abridged Ceremony for one in extremis, 995, 996
no by will, 861, 996w
ceremonies exacted in case of adults, 996
ceremonies begun by dying husband completed by widow, 996, 997
Jagannatha's views, 997
investiture in adoptive family thought essential by Colebrooke, 997
vicarious ceremonies in lower castes, 998
mere gift and acceptance enough in Madras, ib.
observations of Judicial Committee, 998p
exceptional dispensations in Bombay, 999
In adopting Sagotras
sacrifices may be omitted, 8315, 999, 1000
though religiously prescribed, 999
Adoption after tonsure
ceremonies necessary, 1000
sacrifice annuls effects of tonsure (Datt. Mim), lOOlr
In adopting as Dvyamushyayana
additional formula used, 1001
Ceremonies constitutive — Amongst the lower castes
sacrifice not needed, 824, 825, 1002, 1002u
but desirable, 1003
except perhaps in* Bengal, 1002t3, 1003
all castes below Brahmanas placed on the same level, 1002a;
a Gosavi to adopt without Vedic rites, 824
cases of without sacred rites, 1003
Subsidiary Forms, 1004
writing needless, 1004
but usual, 1005, 1006
insufficient by itself, 1005, 1006
no invariable form, 1005, 1006
clear evidence to be insisted on, 1005, 1006
mere intention insufficient, 1005, 1006
case of invalidity for defect of forms, 1005, lOOG
1110 INDEX.
ADOPTION— continMed.
Informalities, 1006
a cause of invalidity, ib.
in Madras immaterial, 1007
unintentional omission not fatal, 1006, 1007
except perhaps of all ceremonies, 1006, 1007
defect of forms but not of essence remediable, 1006, 1007
omission raises presumption against 1006, 1007
Ceremonies — Collateral, 1008
donations to Brahmanas, ih.
presents to the child, ib.
Authentication, ib.
instruments thought indispensable by some castes, ib.
distribution of sweetmeats, &c., 1008
Ceremonies — Variations in Quasi-Adoptions
nitya and anitya in Madras, ib.
krita s disallowed, 1009, 1011
imitated by ascetics, 1009
and in Gujarat, ib.
comparison of Eroman law, lOOlgf
kritrima mere gift and acceptance, 1009
mere assent makes a foster son, ib.
mere nurture held to make an heir, 1010
and recognition in case of a dancer, ib.
VII. — Consequences of Adoption — Perfect, General Effects, Change of
Status, 1010
effect of complete amongst the twice-born, 838
gift in extinguishes filial and paternal relations, 347e, 961
relation to family of birth annulled, 1010
causes complete severance from family of birth, 347e
whether consanguinity ceases with discussed, 912
law in Maithila, ib.
the Andra country, ib.
relation to adoptive family completed by initation, lOlOz
confers right to inherit, 56
adopted becomes like a begotten son, 349fc, 1010,68, 69
rights subject to partial defeasance, 1013
adopted son does not replace disqualified father?, 542, 545
not to be disinherited, 549
only one allowed at a time, 1011
except on refusal or incapacity of adopted son to fulfil duties, 1028
adoptive mother's interests gradually developed, 1011
her ancestor's interest, 1012
son includes adopted son in Succession Act, 1013
Change of Sacra, 1012
the most important result of , ib.
deliverance from Put effected by single , ib.
no ceremonial impurity from family of birth, 1013
Transfer of Offspring, ib.
son goes with father into adoptive family, ib.
INDEX. 1111
ADOPTION— conitnMed.
Adoption by Male prospective, ih.
by male does not affect bygone transactions, 596gf, 1014
affect a completed gift, ih.
Adoption hy Widow retrospective.
" operates retrospectively " how construed, 349, 879, 886, 888, 1014
not retrospective amongst competing collaterals, 888
even vs^hen postponed by fraud, 890
son by ranks as posthumous, 1014
by widow of the last male survivor of family, 887
widow's ownership ceases, 1013, 1014
her past transactions subject to rescission, 1015
upheld when they were necessary or beneficial, 1014, 1015
rights of action and vested interest arise at , 1014, 1016
but extend only to interests actually vested in deceased adoptive
father, 884, 885, 1016
not to a raj re-granted to a widow, 1016
nor to collateral succession taken before actual , 1035
Adoption final, 1016
cannot be set aside, 348, 822y, 838, 960, 1017
or renounced, 1017
boy duly adopted not to be abandoned or disinherited, 324, 549, 968,
977, 1032
rights may be renounced, 1033
or made subject to conditions by agreement, 1017
no return to family of birth, 1017, 1018
Connexion with Family of Birth — As to prohibited degrees, 1018
a male, though given in cannot marry within seven degrees in
family of birth, 837, 1018
Conditions and terms annexed to Adoption, 1018
not allowed to affect the status, 1019
conditions accepted in ignorance not binding, ib.
life interest retained by widow adopting under will, 1020
under agreement with natural father held ratifiable, ib.
contrary view of Sastris, ib.
allowed by customary law, ib.
nature of adopted son's interest under wills, &c., in favour of
widow, ib.
Specific effects.— Relations to Family of Birth, 1022
natural must give up to adoptive parents, ib.
not subject to expenses of the boy's samskaras, ib.
tonsure wrongly performed by natural father void, ib.
obsequies performed for natural father ineffectual, ib.
adopted son should not preform obsequies for natural mother, 1023
no inheritance in family of birth, ib.
except in default of other heirs, 1024
among Gyawals, ib.
in what absolutely and solely vested in adoptee according to Calcutta
and Madras High Courts, 1024
no obligation to pay natural father's debts, ib.
1112 INDEX.
ADOPTION— continwed.
the incapacity for marriage in family of birth continues, 1025
of younger brother by birth disapproved, ih.
relatives by birth do not inherit from boy given in , 1026
Relations to Family of Adoption
adopted son cannot marry within three degrees, 838, 1025
the adoptive father is entitled to custody of son, 1026
who should reside with him, ih.
adopted son entitled to maintenance, ib.
and his widow, 1027
his samskaras to be performed, ib.
objects of set forth, ib.
relation to adoptive mother's ancestors, ih.
succession to adoptive father's estate, 1028, 1031
bound to maintain widow, 1028
similar duty of daughter-in-law adopting, ih.
rights of son arise forthwith on , 1029
the ordinary right, ib.
alienation by father restricted, ib.
except of self -acquired property, 1029, 1032
different relations of father and son as to property in Bengal and
Bombay, 1029/
interdiction open to adopted son, 1030
cases of an adopted son's rights, 1030, 1031
rights vest in son adopted by daughter-in-law, 1030, 1038, 1041
not annulled by subsequent disposition, 1031
or birth of daughter's son (Bengal), ib.
adopted son succeeds though separated, 1032
takes by survivorship, ib.
disinherison of adopted son, ib.
his renunciation and relinquishment of rights, 838, 1032
he is not thereby restored to his family of birth, 838
his widow entitled to maintenance, 1033
son not prejudiced by widow's unauthorized alienation, 349, 1035
may get such alienations rescinded, 349, 1034
but not those properly made, 1035, 1042, 1043
adopted son divests widow's estate, 349
cannot defeat or divest an estate, except in four cases, 886 — 887
cannot divest inheritance vested in son's widow, ib.
widow's right reduced to that of mother and guardian, 1033gf, 1038
except in cases of necessity?, 1036
adopted son heir in turn to adoptive mother's stridhana, 480, 1034,
1038
alienation by widow after not ratifiable, 1034
her religious gift invalid, 1035
she may give her separate property, 1036
sale for husband's debts good, ib.
under necessity valid? ib.
rights in case of successive s by mother, 1036, 1037
INDKX. lljy
ADOPTION— contmued.
as to alienations between death of first adopted son and
second , 1037, 1039, 1042
adopted son representative for suits, ih.
pending suit by widow, 1038
widow's right to maintenance against adopted son, 1037, 1038
and to residence, 1038
adoptive mother succeeds to son, 1039
adopted son succeeds to step-mothers, 1039, 1040
connexion in sacrifices, 1039c
succession of adoptive step-mother, 1039, 1040
importance of right to adopt as between co- widows, 1040
adopted son liable for adoptive father and grandfather's debts, 1041
and those properly incurred by widow, 1042
he recovers debts in his own right, ib.
adopted son pronounced liable as such for mother's debts? 1042, 1043
admissions by widow as manager as affecting adopted son, 1043
widow bound to account to adopted son, ih.
adoptive mother legal representative of adopted son, ih.
adopted son yields religious precedence to one by birth, ih.
marriage in adoptive family prohibited to three degrees, 1044
adopted son regarded as of the adoptive family for further s, ih,
adopted son competing with son by birth takes one-fourth, 347e, 354,
355, 707, 836, 1044
BO in mother's property, 1044
exceptions (especially amongst Sudras), 1044n, 1045
son by birth takes vatan or impartible estate, 1045
adopted son excludes an illegitimate as heir to mother, ih.
sister succeeds to adoptive brother, 1046
Collateral Succession through Adoptive Father, ih.
adopted son shares sacra of the family, ib.
unless adopted after partition, 1046, 1047
partition excludes boy subsequently adopted, 901t
adopted son is a sapinda, 1051
he takes his father's share in a partition, 835c, 1047
or in a collateral succession, 1050
replaces him in united family, 1047
two cases contra, 1047, 1048
adopted son may compound for his share, 839
coparceners need not wait for an , 1048
adopted son takes collaterally only where succession opens after ,
1049, 1050, 1052
he continues an estate but does not recover it once distributed, 1050
adopted son of whole brother preferred to natural son of half-
brother, 1049
collateral inheritance by a group and subsequent , 1051a
collaterals inherit from adopted son, 1051
adopted son may separate from adoptive father, 839
but does not thereby lose his rights of inheritance, ib.
adopted sons succeed inter se, 1053
1114 INDEX.
ABOFTIO^— continued.
adopted son succeeds to sister's adopted son, 1052
Collateral Succession through Adoptive Mother, ih.
comparison of the Eoman Law, 1052o
cases discussed, 1053, 1054
conclusion that the adopted son takes collaterally through adoptive
mother like son by birth, 838, 1054
Manu gives heritage of maternal grandfather only to begotten
son, 420
Imperfect Adoption, 1055
comparison of the Eoman law, 1058c
adoptions contrary to caste laws annulled by caste, 1055
a small share given in such cases, ih.
rights in family of birth unaffected by invalid , 1056
succession or participation to the exclusion of a person disqualified
not divested by , ib.
sons already adopted take subsistence, ib.
or replace the father, 1056o
a vicarious allowed by custom, 1056
conditions of cancelling , ib.
invalidity, 1057
invalid transmits no right, 1058
right of maintenance arises in case of severance from family of
birth, ib.
invalid not set up by subsequent change in family, 1059
no over the head of a man fully initiated even after his death,
1060«;
or by other substitute than a widow? 1060
Case of a Grantee, ib.
the sovereign's or superior's consent required under native system
for succession to the tenure, ib.
a confirmatory sanad relied on to be proved, ib.
Effects of Adoption as Dvyamushyayana, 1062
the boy inherits from his natural father in default of other sons, ib.
Other Irregular Adoptions.
kritrima son inherits in both families, ib.
contracts no family relation with the adoptive father's or mother's
cognates, 945
kritrima son adopted by one parent succeeds to that one only, 1063
does not affect a Talabda Koli's right of disposal, ib.
similar law in some other castes, 1065
the adopted son may be replaced where a begotten son could be
disinherited, 1064
no succession as son of adopted daughter, she having brothers, ib.
or under a bought son, ib.
plurality of adopters and adopted, ib.
a gosavi's pupil does not succeed to him as father, ib.
quasi of son-in-law not recognized, 1065
his rights under customary law, 1065c
foster-son not recognized by the Sastras as a successor, 1065, 1066
INDEX. 1115
ADOFTIO^— continued.
but recognized by custom, 1066
as successor in both families, ih.
widely recognized by the castes in Gujarat, IO66/1
adoptions generally disallowed there, ih.
quasi by Naikins ineffectual, 1066
exception, 10Q5g
VIII. Suits ayid Proceedings connected with Adoptions
jurisdiction recognized by Hindu law, 1067
In case of Non-adoption.
agreement to adopt binding, ih.
no suit to compel a widow to adopt, 1067, 1068
bequest to specified person not defeated by non-adoption, 1068
direction to adopt not equivalent to bequest, ih.
breach of a written agreement as to does not avoid it, ih.
Position of Widow before Adoption.
she may obtain a declaration of her heirship, 1068
authority to adopt no obstacle, ih.
two widows authorized may divide the property, ih.
a son adopted may dispute widow's prior transactions, 1069
presumption in favour of them if approved by heirs, ih.
declaration in favour of son still to be adopted cannot be made, ih.
widow is not a trustee for son to be adopted, 1069
widow continuing suit after may be regarded as trustee, ih.
no forfeiture for attempted false , ih.
alienation by widow before second not affected by it, 1070
Suits to estahlish Adoption.
a claimant in Bengal must prove authority and actual , ih.
must sue for property when it is sought, ih.
but may sue for declaration for use before another authority, ih.
an adopted son discarded may sue to establish his right, ih.
second under power invalidated by existence of widow of first
adopted, 1071
authority where required must be strictly proved, ih.
evidence of ceremonies, 1072
facts deemed significant, 1071
presumption, 1071, 1072
registration of deeds of recommended, 1071
in a suit as adopted son a right as dvyamushyayana not to be
set up, 1073
conditions of suit for declaration, ih.
institution fee, ih.
' certificate of administration may be claimed to estate of one
whose is disputed, ih.
certificate of guardianship does not give a right against a widow
disputing the , ih.
Suits to set aside Adoption.
person interested may question an , 889
suit competent apart from claim to property, 1073
but not to a stranger, 1074
1116 INDEX.
ADOPTION— conh'nMed .
adopted must prove , 1073
estoppel against one who has admitted by conduct, 1073, 1074
grounds deemed insufi&cient for setting aside , 1074
for establishing it, 1076
suit competent only to nearest heir unless this is impracticable, 1076
suit for possession as heir must not be changed into one for
declaration against an , 1076
objection of consent not obtained held too late when raised before
Judicial Committee, ib.
objection not pressed below disallowed in second appeal, 1077
admissions, as binding or not, discussed, 1075, 1076s5
acquiescence or consent through ignorance not binding, 1077
nor if got by misrepresentation, 1077, 1078
Adoption an incidental question
in fact presumed valid, 1077
case of conveyance convertible into mortgage on , ib.
devise to adopted son as persona designata upheld though
invalid, 1077, 1078
Proceedings consequent on Adoption, 1078
under Act XXVII. of 1860, 1078, 1081
gift to adopted son not affected by birth of sons, 1078
settlement on widow with concurrence of adopted son upheld, ib.
son cannot demand a declaration of right to specified undivided
share, 1079
son adopted pendente lite to be made a party, ib.
representation acted on to be made good, ib. *■
attestation of a deed of does not bind to a statement therein, 1080
certificate of administration to estate of adopted child, ib.
adoptive mother preferred as guardian, ib.
certificate of guardianship when to be given to a widow, 911, 912
widow cannot continue a suit against wish of adopted son after he
has attained full age, 1080
she is entitled to certificate of administration to deceased husband's
estate as against an alleged adopted son, 1081
the questions of title and of adoption to be adjudicated, ib.
m case of application for certificate of administration resisted, ib.
a contest between widow and adopted son as to validity of will should
be the subject of a regular suit, 1081
effect refused to permission to adopt during adopted son's life, ib.
bequest contingent on death of proposed adopted son unmarried
invalid, ib.
grant of probate to alleged adopted son cannot be resisted by creditors
of next heir, 1082
Judgments and Evidence in previous cases, ib.
no process for establishing or avoiding as to all the world, 1082r
judgment on is not in rem, 1082
decree not evidence in litigation with third parties, ib.
nor binding between adopted and a different heir, ib.
not res judicata when parties changed, ib.
INDEX. 1117
ADOPTION— contmued.
but between the same parties res judicata, though for a different
portion of the property, 1083
different decision in case of other property, ib.
denied in a summary inquiry may be asserted in a suit, ih.
deposition of plaintiff in suit against one adopted son not admissible
in suit for a second? ih.
a certificate may be granted as guardian to a son whose father's
has been set aside, 1084
Limitation, 972, 1084
to suit for declaration of adoption six years from act contradicting it,
1084
for declaration against six years from knowledge, ib.
limitation computed from death of widow who had adopted after her
son's death, 1084, 1085
acknowledgment by sister of deceased held not to bind her son, 1085
limitation in a suit for a share by one as adopted son computed from
knowledge of exclusion, ih.
ADULTEKOUS MOTHER
must be maintained, 555
ADULTEROUS WIFE
must be maintained by husband, ib.
not by his brethren, ih.
to be kept apart, ib.
her husband inherits her earnings by adultery, 483
See Unchastity; Maintenance; Wife
ADULTERY,
an offence under the Indian Penal Code, 556
disqualifies a widow from succeeding, 83, 149, 406, 422, 552—557
but does not divest property already vested, 83, 554
revokes wife's authority to deal with husband's property, 86s
amongst the lower classes punishable as involving injury to caste rather
than loss of chastity, 401
one begotten in has no right of inheritance, 368, 546r
but of maintenance only, 546r
reason why was denounced, 798r
entails only a penance when connexion was not with a man of a lower
caste, 401
with a low-caste man punished with divorce, ib.
atoned at husband's will, ih.
See Disqualification; Unchastity; Wife
ADVANCEMENT,
no presumption of from purchase by a Hindu father in son's
name, 568, 665
AD YAM,
explanation of, 308A;, 353
1118 INDEX.
AGAEVALI CASTE, 356
AGE
of Vijnanesvara, 17
the Dharmasastras, 30, 35
of majority fixed at eighteen, 846
this does not affect adoption, &59w
of competence for religious acts, 964s
child how designated at different times, ib.
See Adoption II., 814d, 831; III., 845, 858, 859, 869, 890;
VIII., 1081
Boy.
AGHEANA. See Adoption III., 847n
AGNIHOTEA, 744
AGEEEMENT,
private cannot alter the course of devolution 4, 151m, 178
not allowed to control customary law, 84
between adopted son and mother pronounced void, 1181, 1876
how far valid, 985, 1020
to divide after a certain event does not sever interests, 633
See Adoption VI., 960, 964; VII., 1017, 1020; VIII., 1067, 1068;
Evidence of Partition; Disteibution ; Partition; Part-
nership.
ALIENATION,
power of dependent on circumstances, 169
limited by Hindu law, 186
by adoption, 138w
its growth in Europe, 736gf
by absolute owner now unrestricted, 76, 215, 982
family estate once deemed inalienable, 672k
how the family estate became gradually alienable, ib.
generally disapproved in ancient laws, 714
of sacred property usually disallowed, 681
religious endowment alienable only to one in the line of succession,
200, 716m
otherwise indivisible and inalienable, 717
exceptions, ib.
interest of a temple servant alienable, 716m
vatan property cannot leave the family, 769
of self-acquired property limited to surplus over family needs, 601a;,
695, 1215
impartibility consistent with alienability, 154, 378, 681/
but checks incumbrance, 162
inalienability a question of family custom, 154
raj not necessarily inalienable, 681/
widow's right to maintenance in alienable, 698
INDEX. 1119
ALIENATION— continued .
Alienation by Coparcener
a coparcener may alienate for value his share without consent of others
in Bombay and Madras; (but not in Bengal, Behar and N. \V. P.,)
565, 616, 687tn, 203, 215
not by gift, 447, 568, 616, 651, 203
or by devise, 616, 651, 203
except for pious purposes, 816
he cannot dispose of joint property without consent of the others (Mita-
kshara), 448, 478, 562;t, 564s, 651
restrictions on by caste custom, 684d
made under necessity valid by custom, 688t
Alienation by Father.
of patrimony subject to control of descendants unseparated, 206, 5931, 739,
740e, h, 587
without assent of heirs invalid by custom, 599o
son may prevent improper , 193a, 594
or annul it unless made before his birth or adoption, 596g, 732, 1013
care for child unborn, 208g
of immoveable property, though self -acquired, said to be invalid? 705, 739
father has full power over property self- acquired, 705, 733, 982
by will invalid against a united son, 740/i
subject to provision for family, 727
depriving a widow or family of subsistence invalid, 210, 234
for purposes not immoral binding on son, 340, 581, 582, 587, 987
immoral purpose affecting but a trivial portion does not invalidate it, 8
Alienation by Grandfather
with son's assent not disputable by that son's son, 731
Alienation by Mahant
fraudulent set aside, 1876, 199
See Trust, ib.
Alienation by Manager, 592fc, 701
acquiesced in by coparcener is binding on him, 688*
Alienation by Mistress
mistress not to alienate a house given to her by her patron, 19Sy
Alienation by Son
requires father's consent, 740
Alienation by Uncle
without assent of nephews, 740e
Alienation by Widow
dependent by caste usage on non-existence of male relatives of her
husband, 7146
not to prejudice subsequently adopted son, 1033
See Widow
Pilgrimage, 306
Alienation by Wife
in case of paraphernalia under English law, 186*
See Ownership; Manager; Property Self-acquired; Adoption
VII., 1029, 1034, 1035, 1036, 1041, 1043; VIII., 1069
1120 INDEX.
ALAMANNI,
laws of the, 798p
ALLOWANCES,
temple, are hereditary and divisible, 681
Chirde, 425
Desaigiri, ib,
Muglai, ib.
Sirpava, ib.
Vazifa, ib.
from Government, arrears of are Stridhana, 491
ALYA SANTANA LAW. See Adoption III., 907; IV., 946
ANALOGY OF HINDU LAW
followed in succession to principalities, &c., 677
a means of construction, 100
See Interpretation
ANANTADEVA,
author of Samskarakaustubha, 26
ANCESTOR-WOESHIP, 270
See Sraddhas
ANCESTEAL LANDS,
lands once held by common ancestor, 657t
ANCESTEAL PEOPEETY. See Property Ancestral; Succession; Parti-
tion ; Alienation
ANIMAL SACEIFICE,
formerly prevalent, 811a;
ANITYA ADOPTION. See Adoption, 1008, 1058
ANITYA DATTA, 810n
who is son? 981, 939t
son of son, 939t
ANNUITY. See Investment; Nibandha; Property
ANOMALOUS ADOPTION. See Adoption
ANVADHEYA,
is a gift subsequent to marriage, 135, 277, 486
is a kind of stridhana, 485, 486
is shared by sons and unmarried daughters equally, 135, 309, 486fe
APARIBHASHIKA STEIDHANA, 485, 496
INDEX. 1121
APAEADITYADEVA
is another name for Apararka, 19
APAEARKA,
the author of Yajnavalkyadharmasastranibandha, ih.
Apararka 's doctrine as to Stridhana, 19, 712
APASTAMBA SUTRA, 32
APASTAMBA OR APASTAMBHA,
school of, 36
APOSTASY,
(mere) does not free from the Hindu marriage law, 659a
APPANAGE
of juniors in case of primogeniture, 256
when it reverts, ih.
in India and Germany, 677a
See Maintenance; Zamindari, 682
APPEAL
suspends effect of decree for partition, 615, 633
APPOINTMENT
of daughter, place of in Hindu law, 800
daughter by is ranked third amongst subsidiary sons by Vasishtha, 801
no longer recognized, 800
not recognized by Apastamba, 802
nor by Gautama, ih.
nor by Baudhayana, 803
of daughter conceived in two ways, 801
traces of in the existing law, 800
relative position of and her son, 803 *
analogue amongst the Greeks, ih.
See Adoption — Putrika-Putra
APRATIBANDHA DAYA, 63
See Inheritance Unobstructed
APSARASES, 798r
ARROGATION,
origin of the term, 828f/, 830gf
Roman, limited to those who had attained years of discretion, 805k
age of the adopter in an of one sui juris, 832a
safeguards for sons taken in , 820
of women not allowed before Justinian's legislation, 834A;
ARSHA, 265, 481, 484, 486
See Marriage
H.L. 71
1122 INDEX.
ARYAN HINDUS. See Hindus, Aryan
ASAGOTEA SAPINDA. See Bandhus ; Bhinnagotra Sapindas ; Adoption
IV., 872
ASAHAYA, U
ASCETICS,
orders of , 17, 18
succession to, based on personal association 521w
relations between and their disciples governed by custom, 834
cannot alter succession to an endowment, 521mj
cannot impose restrictions on successors contrary to custom, ib.
See Mahant; Adoption III., 839; VI., 1008
ASCETICISM. See Adoption III., 848
ASRAMAS, 61
ASSENT
of sons deemed necessary to alienation by father, 699o, 601a;
See Alienation
signified by attestation, 593Z
as once in Europe, 191n, 218
requisite to a gift, 191k
of members of family is necessary to expensive sacrifices, performed by
one of them, 564s
to gifts at mother's obsequies, ib.
not necessary to resigning holding by Government occupant, ih.
of brethren to adoption essential on account of widow's dependence, 868d,
871, 889, 9011
of brethren ought not to be refused except for special cause, 871g, 876,
895—898
by property dedicated to service of family idol may be disposed
of, 716m
but not that dedicated to public temple, ih.
coparcener, desiring to limit his responsibility for liabilities [maintenances
of relatives, &c.] may secure himself by of interested
parties, 719, 720
of co-sharers to charges binds them, 688
to adoption implied from non-prohibition, 867tt;, 869A;, 869
See Acquiescence ; Adoption, passim
ASSESSMENT. See Adoption III., 854
ASSETS
taken are accompanied by liability for debts of one deceased, 165, 168, 602^;
the responsibility of a son is not by Hindu law dependent on , 165, 1088
but so limited by statute, 76i, 686
See Debt; Father; Inheritance
INDEX. 1123
ASSIGNMENT,
none of a right to maintenance, 191, 246, 260, 253, 288
of debts to a parcener on partition, 718
possible, of part-ownership in a physically indivisible property, 757
of obligations, 685e
ASSOCIATION
capable of creating a law for itself? 559
See Custom
ASTKOLOGER, 180
astrologer's relation to those who take his services governed by custom,
388, 389
See JosHi
ASURA MARRIAGE. See Marriage
ASVALAYANA DHARMASASTRAS, 46
ATHENIAN LAW
compared with Hindu law, 1776, 8B8w
ATTACHMENT
of property for debts discussed, 161
and sale of family land unknown to Hindu law books, 602
not properly directed against undivided share? 579d
of whole undivided property may be made for debt of one coparcener, 615/
subject to rights of sons, &c. 616
of undivided share creates a charge on undivided interest, 566y, 567
effect of of impartible zamindari, 161
whether purchaser in execution of manager's share can be ousted? 567d
ATTACHMENT BY GOVERNMENT, 763
ATTESTATION
under Hindu law intended to be of the transaction, 218
See Assent
is a mark of assent, 593/, 673, 710, 771
according to decisions does not bind to contents, 1080
in case of wills, 917 ss
See Wills
ATTICA,
laws of against alienation and sub-division, 210
compared with Hindu law, 210, 271, 395
ATTORNMENT,
equivalent to possession, 643
AUNT (Paternal),
not a gotraja sapinda even in Gujarat, 122p
1124 INDEX.
AUNT — continued.
but is entitled to rank as a bandhu, 122p, 458
when succeeds, 453
See Sapinda
(paternal) 's son is a bandhu, 123, 457, 461
case of exclusion of by sister's son, 463
is excluded by great grandson of fifth ancestor of the deceased, 456
(maternal) 's son is a bandhu, 123, 457, 461
excluded by sister's son, 463
AURASA SON. See Son, 804, 805
AUSTERITIES,
may replace adoption, 790, 1013, 1060
AUTHENTICATION,
public — of transactions, 973
records originally recollections, ih.
See Adoptions VI., 1007
AUTHORITIES
on Hindu law enumerated, 9
(See separate list)
their relative weight considered, 9 — 54
AWARD,
stranger to an — cannot rely on admissions in it, 189n
BALAMBHATTA, 18
See Adoption V., 948
BALAMBHATTATIKA,
written by Lakshmidevi, 18
otherwise called Lakshmi Vyakhyana, ih.
is a commentary on the Mitakshara, ib.
gives the widest interpretation to the text of Yajnavalkya, 18
BANDHAVAS,
include maternal uncle, 125
BANDHUS,
Vijnanesvara's conception of , 124, 443, 458
defined, 124, 457, 458, 464
enumeration of , 123, 457
the enumeration of is not exhaustive, 124, 126, 458
limit of bandhu relation, 457, 463
origin of this, 457
includes all relatives within the degrees expressed, 458, 459, 461
See Sapinda
among unenumerated , nearer succeed before remote, 460
INDEX. 1125
BANDHU S— continued.
mentioned in law books, 461
not mentioned in law books, males, 462, 127
females, 465
order of succession, 124, 324, 456, 460, 461, 463
Sapindas and Samanodakas are preferred to , 123, 458
postponed to Gotraja Sapindas, 460n
in Bengal, succeed before remoter Sapindas, 108y, 4576
aunt's sons preferred in N. W. Provinces to cousin's widow? 454
BANTS. See Tribes, 272«j
BANYA, 390
BAKRENNESS,
not an impediment to inheritance in Bombay, 474
BASTARDS,
inherited under Irish and Welsh law, 77n
See Illegitimate
BAUDHAYANA,
on female inheritance, 117*5
See List of Hindu Authorities
BENAMI SYSTEM,
may be traced to union of Hindu family, or law of agency in the
Mohammedan law, 157, 562/i
transaction, presumption in a, 665e, 158
principle of, ib., 158
purchase in son or daughter's name, 158, 665
purchase in wife's name who is found in possession, 158
purchase by manager in his own name, 158
purchase from or mortgage by benamdar holding himself out as real
owner with or without notice, with the acquiescence of beneficial
owner, 159
BENAMDAR
may sue or be sued in his own name, 160
BENEFITS,
spiritual. See Adoption IV., 922, 944; VI., 987
BEQUEST
of property acquired by partition good against remote heirs, 129
of undivided share invalid, 588, 616
merely for Dharma ineffectual, 223
tying up the corpus is invalid, 224
by a coparcener singly is inoperative, 564
by husband to wife treated as a gift, 297c
1126 INDEX.
BEQUEST— continued.
to one son to the prejudice of others invalid, 205, 206, 705, 736
See Gift, 564 ; Devise; Will ; Testamentary Power ; Per-
petuity; Wife; Widov7 ; Adoption VIII., 1068, 1081
BERADA CASTE, 405
BETROTHAL AND MARRIAGE,
sometimes confounded, 266
BHACHA,
nephew through a sister on one side, 611
BHAGADARI LANDS,
male preferred to female in succession to , 407
in holdings, sub-division is prohibited, 684
and also separation of the house from the holding, ih.
sale of part of a bhag is void though made by a Court *
BHAGDARI VATAN, 4356
BHAGAVANTA BHASKARA,
consists of twelve divisions, 20
enumeration of these, ih.
BHANGA SALI CASTE, 406
BHARADVAJA SMRITI, 47
BHARTHI SECT, 530
BHATELE CASTE, 787, 850
BHATT VAIRAGI,
a mere grihastha, 536
BHATT VRITTI, 671e
BHAVIN,
a votary of Rawalnatha, 494o
BHILS. See Tribes, 276
BHOOTEAH. See Tribes, ib.
BHINNAGOTRA SAPINDA,
daughters of descendant and collaterals within six degrees are s, 127
descendants of daughters are s, 127, 460n
* Collector of Broach v. Rajaram Laldas, I. L. R. 7 Bom. 542.
INDEX. 1127
BHINNAGOTEA SATrnDA— continued.
maternal relations within four degrees are s, 127
sister's son is a , 459
grand-daughter's grandson is a , 127
but her great-grandson is not a , ih.
sapindas extend to mother's great-grandfather and his fifth descendant, 469
not 80 in Madras, 460n
seventh descendant through daughter is a according to one opinion,
ih.
admission of more than one female link in connexion giving heritable
right questionable, 46(>n.
succession of s, 459ss
daughter's husband's to Stridhana of his wife, 503 — 505
BHEATAEAH, 121n
BIETH
actual necessary to the full constitution of right as son, 63, 596g, 732
at once confers on the son the right to participate in property, 665, 732, 740
See Adoption VII., 1021, 1025, 1031, 1043, 1044, 1045, 1054, 1056,
1067; VIII. , 1078
Son
BLIND; BLINDNESS,
who is blind? 541
blindness does not prevent disposal of property, 542
disqualifies for inheritance, 141, 541 — 543
if congenital, 160
not partial, 643
disqualifies for taking under partition, 747
persons married and having families inherit in some castes, 150
sons of persons are not excluded, 541
disqualifies a widow, ih.
men must be maintained, ih.
of the son born does not justify adoption, 817
See Adoption III., 848; Disqualification, 541; Maintenance
BLOOD-EEL ATIONSHIP,
recognized amongst the lower castes, 831o
gives a right to inherit, 56
not jurally extinguished by adoption, 1024
See Adoption VII.
BOOK,
land in England originally pious grants, 191n
BOOKS
when indivisible and when not, 671, 675
to be kept by coparceners having them, 717
1128 INDEX.
BOEOUGH— English, 338
BOY
a may not recite Vedic formulas except for obsequies, 1089
See Age
BEAHMA MAEEIAGE
See Marriage, 481, 484, 486, 494
BEAHMACHAEI,
divided into Upakurvana and Naishthika, 66, 60
meaning of Upakurvana and Naishthika , 469o, p
succession to Upakurvana , 56, 73, 468
Naiphtmka , 133
See Adoption III., 842o
BEAHMIN COMMUNITY,
when inherits, 128
BEAHMANA, 61, 434
is born under three obligations, 789
he only is born under three obligations, 823
Brahmanas may become Sannyasis, 618
Nagar, 867
See Adoption III.
widow, 921, 941, 942, 943
See Adoption IV.
Brahmanas have a spiritual title to all things, 128/
succession of learned s on failure of blood relations to the property
of a , 126, 128
See Srotriya
this succession of s not recognized by English Courts, 128
See Adoption III., 860, 891; VI., 968, 889, 998, 1002a;, 1007
BEETHEEN,
a grant to united constitutes a Hindu joint tenancy, 72
BEIDE-CAPTUEE,
See Capture, 797
BEIDE-PEICE, 263, 267
discussed, 366
common amongst the wild tribes, 270
and low castes, 368
institution of existed among Hindus for a time among all classes, 264
came to be looked on with abhorrence by the Brahmanical community in
later times, 266
became peculiar to Vaisyas and Sudras, ih.
though in the Arsha form of marriage gift of bull or cow was still
preserved, ih.
INDEX. 1129
BKIDE -PRICE— continued .
practice extending in Sub-Himalayan districts, 270
sales still not unusual in Gujarat, ib.
Sulka and , 265—268
amongst the Jews, 266io
Germans, tb.
connexion with dos legitima and morgengahe, 266, 267
Roman co-emptio, 266
in China, 267
Stridhana had a pre-historic origin in the , 263
goes to the mother or the brother, 265, 266
father in the Huzara district, 265gf
See Sulka ; Stridhana
BRIDE-PURCHASE. See Bride-price, 264
BRIHASPATI SMRITI, 43
its age, 44
BRIHAT SAUNAKA, 46
BROTHERS,
are the coparceners specified by Mit. and May., 69, 70
include more remote relations according to the opinions of the Sastris, 70,71
sons of the same concubine are ranked as full, 74, 369
succession of , 102, 324, 379, 404, 411, 426, 432, 438, 497
under Mit. full and half rank equally in undivided families, 72
but in divided families full are preferred to half , 772
in Bengal full take before half in undivided families, and
undivided or reunited half take equally with separated full
, 71, 429
when and nephews succeed simultaneously, 71, 100, 103
exclude foster-daughter, 426
reunited half take equally with separated full , 130
reunited full exclude reunited half , 131
half acquire the right of inheritance by reunion, 71
succession of of half-blood, 104, 334, 383, 410, 427, 429, 430, 438
according to Mit. and Vyav. May., 104
half postponed to full sister by Vyav. May., 430
succession of, to full sister, 436, 439
separated postponed to father, 427
by birth take precedence of one previously adopted, 836 gf
half postponed to full sister, 104
divided preferred to first cousin's widow, 427
sister's son, 512
succession of to unmarried females, 134, 470
to Stridhana of females married by approved rites, 507, 509
by blamed rites, 488, 494
take Sulka Stridhana, 266, 268, 269, 311, 486m
succession of half to Stridhana of married females, 610
1130 INDEX.
BUOTBBH^— continued.
succession of illegitimate to legitimate, 364
whether illegitimate and legitimate half form a united family, tb,
partition between , 741 — 747
may demand partition at any time, 611
take equal shares on partition, 345, 710, 742
and divide debts equally, 344, 718
elder takes management with consent of others, 212w, 568
younger not to precede the elder in marriage, 8206
elder enjoyed a superior position in ancient times, 270m
ancient authority of in disposing of sisters, 269
a may interdict dealings with heritage by another to the prejudice
of his right, 279/
initiatory and marriage expenses of unmarried a charge on joint
estate, 714a, 742, 746
brother's share is liable for sister's marriage if her share is insufficient,
714a
elder takes right side of house by custom, 748
western , ib.
brother's power to mortgage joint property, 746
widow of the last deceased takes the property, 328
See Adoption V. 949, 954, 955, 956; VII., 1046, 1050; Nephew;
Primogeniture ; Eenunciation
BKOTHEE-IN-LAW,
succeeds to a widow, 492
is preferred to the widow's brother, 494
BBOTHEK'S DAUGHTEBS,
are bandhus, 465
to be married at the expense of the family estate, 747
succession of , 465
take equally, 431
preferred to brother's daughter's son, 465
postponed to first cousin once removed, ih.
BEOTHEE'S DAUGHTEE'S GE AND SON, ib.
BEOTHEE'S DAUGHTEE'S SON,
excluded and admitted in Bengal, ib.
BEOTHEE'S GEANDSON,
preferred to daughter's grandson, 449
BEOTHEE'S SON,
can be adopted, 924
succession of , 104
sons succeed per capita, 431
succeeds to an interest vested in his father before his death, 101
excluded by brothers, ib.
INDEX. 1131
BROTHER'S SON— continued.
sons (unseparated) exclude widow, 431t
of the whole and half blood, 427, 431
(half) succession of, 104
See Adoption IV., 908, 913, 914, 921
Nephew
BROTHER'S WIFE, 395
BURDEN OF PROOF :—
acquisition since partition to be proved by party asserting it, 636
after partition lies on party questioning it, to show that particular
parts of the property were not included, 6496
separate acquisition to be proved by party asserting it, 669
sons, seeking cancellation of sale by father, to prove that the charge
was one they were not answerable for 686
incumbrancers to show good reasons for holding son's property liable
to pay off father's debts, 687
incumbrancer to scrutinize a transaction by widow, 93, 94d
gross inequality of partition by father between sons to be proved by
party asserting it, 737
of indivision on plaintiff when he has had separate possession of part
for 16 years, 642
See Escheat, 129
BURGUNDIAN LAW,
compared with Hindu law, 82m;
BURUDA. See under Caste, 378
CACHARIS. See Tbibes, 270
CANON LAW,
compared with Hindu law, 235/i
CAPTURE IN MARRIAGE, 269t
once common, 797n
still observed in form by some tribes, 269, 400
of the bridegroom amongst the Garoos, 274/
CARMINA,
metrical form of early laws, 49b
CASTE.
its influence on the descent of property, 61
was thought of much more than chastity in early times, 399, 798r
except Brahmanas, all placed on the same ceremonial level, 1002a;
expression of will of , 620, 661
law of subordinated to general Hindu law, 84
decisions subject to the King's courts, 560c
11B2 INDEX.
CAST'E— continued.
questions excluded from the cognizance of civil courts, 560c
incidentally cognizable, 661
temple, 520
expulsion from extinguished share in property by disabling for
religious rites, 551, 552, 553, 6890
but was not a ground for retraction, 552, 553
exclusion from a bar to adoption, 848
loss of is now not a disqualification warranting the adoption of a
substitute? 816
does not affect inheritance, 403, 541i/, 610
comparison of Boman laws as to heretics, 541t/
non-forfeiture of rights by loss of , 663
exclusion from not a cause of forfeiture in Khandesh, 10336
two degrees of loss of recognized by the Viramitrodaya, 66c
restoration to by means of penance, 66c, 553
CASTES AND CLASSES, 613, 614
Agarvali, 356
Bants (Canara), 272«?
Berada, 406
Bhanga Sali, 406
Bharthi, 630
Bhata, 375mj
Bhavin, 494o
Buruda, 378
Chambhar or Chambar, 738
Charana, 376
Chetti, 946
Dorik, 663
Durgee Meerasee Soorti, 401c
Gavali, 386
Giri, 630
Goojar Talabda, 249p
Gosavi, 618, 513
Gujar, 447
Gurava, 410t
Jains, 162, 633, 812/1, 826q, 932fc
See Adoption III., 849, 850; lY., 924
Jangams (Lingayat priests), 632
Jati, 633
Jogtin, 494
Kanoji, 331
Kanphatta — Gosavi, 528
Khalpa Khumbatta, 241p, 249p
Khatri, 646r, 1066
Kolambi, 375a;
Koli, 356
Koombhars, 241p, 249
Kunabi, 339, 342, 393, 404, 471, 483, 531, 767
INDEX. 1133
CASTES AND CLASSES— conftnaerf.
Lingayat, 342, 394, 477, 954, 1003
Lobar Sootar, 249p
Lobar Surati, ib.
Macbee Gudrya, 241p
Mabar, 339, 353, 416
Mali, 361, 493
(Mogbrelia), 516a
Malri, 535
Manabbau, 535, 636
Maratba, 480, 493
Marwadi, 359, 428, 434
Mocbi, 249p
Murali, 416, 471, 489, 494c
Naigama, 519
Nanaksbahi, 535
Parades! Sutar, 249p, 360p, 427, 508, 550, 738
Parit, 422
Pasbandas, 519
Prabbu or Parbbu, 488, 850Z, 9186
Puri, 630
Rajput, 366, 430
Eamavat, 539
Rangari, 342
Salvees, 689y
Sikh, 1003
Simpi (Tailor), 583, 1003
Sonar, 473
Sonis, 689y
Sravak, 634
Sutar, 249p
Tapodbana, 410
Taulkiya Audichya, ih.
Vaghree, 241p
Vairagi, 537, 538, 639, 652
Vandi, 375
Vani, 389, 476, 490
Yati, 56, 133, 633, 634
Yogi, 728
See Adoption, passim; Tribes
Custom, 516ss
CASTE CONNEXION. See Adoption HI., 848, 849, 854
CASTE PROPERTY,
jurisdiction declined in suits relating to ? 5696
CAUSE OF ACTION,
usually exhausted by a suit, 585h
but not so in particular cases, ib.
comparison of tbe English, Hindu, and Roman law, ib.
1134 INDEX.
CELTIC LAW,
compared with Hindu law, 77
CEEEMONIAL. See Adoption V., 949
gift, ib,
CEEEMONIAL SERVICES,
son owes to his father, mother, and step-mother, 946
CEREMONIES,
questions on , 13
essential. See Adoption VI., 958, 959
no particular essential to complete adoption, 825
no initiatory for Sudras except marriage, 942, 963
vicarious celebration in the cas« of Sudras and women, 824
joint performance of implies union of interests, 775^
separate performance of not conclusive of partition, 637, 638
a stranger not to perform religious , 185
See Adoption, passim.
Sacra
CHALUKYA DYNASTY, 17, 18
CHAMBHAR OR CHAMBAR CASTE, 738
CHANCE. See Gains, 666
CHARANA
(juggler), 375
CHARANAS
(the schools), 30, 31, 48 ,
the origin of intellectual life, 30
CHARGE ON LAND,
sense of, 706, 707
CHARGE,
on inheritance, 155s5
enumeration of s, 684, 685
created by decree and attachment of undivided share, 588, 652 — 653
a joint trade loan is a on joint family property, 324
for payment of debts of the deceased owner, 155
non-liability of property in hands of bond fide purchaser, 73
promises made by the father, 161
debts by father, contracted not for immoral or illegal purposes are
though not incurred for benefit of family, 72, 73, 162, 164, 167,
661, 685, 719, 729, 740
so are father's directions as to, charities,
husband's just debts are , 299
INDEX. 1135
CHAEGE — continued.
separate debts of deceased coparcener are not charges on undivided
property, 72, 718, 720
maintenance of those entitled thereto ranks as , 685
as ex. gr. the maintenance of a widow, 163
and concubine and her children, 164
marriage expenses of unmarried brothers and sisters are , 713, 742,
746
what s may be on the manager's share, 699t
incurred by the manager when binding, 687
enforcible against holder of part of the property, 721
CHABITABLE USES
purposes beneficial to the public, 198
enumerated, 2041
moulded to modern needs, 204Z, 224/c
superstitious not disallowed, 211/
CHAEITY-IES,
common enumerated, 203
cy pres doctrine admitted by Hindu Law, 224
dying directions as to must be fulfilled, 686g
See Alienation; Dharma; Endowment; Gift; Will, 221
CHASTITY
less regarded than caste in early times, 401, 798r
CHATTEL See Son, 833, 951
CHELA,
purchase of recognized in some cases, 525
not regarded as adoption, ib.
must be nominated by his guru and confirmed by mahants, 520, 522
bound to maintain his guru in distress, 723gf
chela's succession to guru, 520
succession of a among Sravaks, 522
chelas joint succession of two, ih.
•See Disciple
CHIEFSHIP,
succession to . See Principality; Raj,
CHINA. See Adoption, 92, 810q
CHINESE LAWS AND CUSTOMS
compared with Hindu, 262w
CHIRDE RIGHTS. See Allowances, 425
1136 INDEX.
CHRISTIANS,
native, not free to adhere to Hindu law since the passing of Indian
Succession Act, 4
CHUDA
ceremony to be performed in adoptive father's family, 939
See Adoption IV. 957
CHUDAKARANA,
tonsure, 9365S
See Adoption, 941; Chuda
CHUNDAVAND, 399
See Patnibhaq
CIVIL DEATH
of a person results from his entering religious order, 66
from a woman's being expelled from caste by Ghatasphota, ih.
but since Act XXI. of 1850, by loss of caste a person does not lose his-
civil rights, 610
CLOTHES IN USE
to be kept by those having use of them, 717, 756
when indivisible, and when not, 670, 673
how divided, 717
COCHIN. See Polyandry, 272
COGNATES. See Bandhus ; Bhinnagotra-Sapindas ; Adoption, IV., 945
COLLATERALS
in partition take per stirpes, 710
subject to allowance for prior partial partition, ih.
See Adoption, III. 888 ; Bandhus
COLLATERAL SUCCESSION. See Succession
COLLUSION BY CO-SHARER. See Fraud, 5705
CO-MEMBERSHIP OF COMMUNITY,
gives right to inherit, 56
COMMENSALITY,
cesser of is evidence of partition, 637, 751
in case of property presumed to be jomt until contrary shown, 663
COMMENTATORS,
Hindu, 16p
use other Smritis to supplement the one commented, 49
INDEX. 1137
COMMENTAKIES,
Sanskrit, 18
COMMON PKOPEETY
Classified, 664
COMMON STOCK. See Property
COMPENSATION
for land withdrawn from general partition, 711
in case of partition of interests, without one in specie, 710
when one divided coparcener loses his share through the wrong of
another, 788
COMMUNITY,
change of frees from the operation of the customary law of inheri-
tance, 3
community's right of ownership still asserted, 174e
COMPOUND
is divisible under ordinary circumstances, 757
CONCEALMENT. See Eepartition
CONCUBINAGE
allowed amongst Gosavis by custom, 518
in low castes not disgraceful, 401
CONCUBINE
regarded as a dasi or slave, 81, 365
pat-wife having first husband alive is a , 392
remarried widow was regarded as a before Act XV. of 1856, 391
keeping a low-caste entails penance only, 401
can take bequests, 359
entitled to maintenance, 76, 164, 193, 366, 433, 546, 556, 654«;
investment may be made for her maintenance, 392
must be provided with maintenance before she is deprived of property
in her possession, 691
of the late owner entitled to maintenance from heir, 393
See Saranjam
sons of a are regarded as brothers of the whole blood inter se, 78, 364
See Illegitimate Son
daughter of a entitled to a provision, 164
CONDITIONS
in some cases not allowed, 1876
running with land, 189
cannot be annexed to status of son or to marriage, 1876, 959
subsequent void if repugnant, 187
in cases of adoption, 1018
See Gift, 186, 187, 416; Grant, 188; Adoption, VI., VII.
H.L. 72
1138 INDEX.
CONFIRMATION
of adoption by the soverign deemed important, 902b
CONSANGUINITY
the foundation of the right of succession, 59, 143, 689
duty of sacrifice annexed to , 689y
See Adoption, IV. 923
CONSENT. See Assent; Adoption IV. 945; V. 948, 951, 952, VI. 990;
VII. 1061; VIII. 1075, 1076
CONSTITUTUM POSSESSOEIUM, 214o
CONSTRUCTION OF GRANTS, 377, 435
See Interpretation
CONSTRUCTION OF LAWS. See Interpretation
CONTINGENCY. See Gift, 212; Condition
CONTINGENT REMAINDER. See Remainder
CONTRACT
Hindu law superseded by Statute, 7
between Hindus and other classes, 6
law of defendant applicable to s, ib.
contracts of the father pass to the heir, 75
of betrothal not to be specifically enforced, 964
for gain by giving in adoption illegal, 961
CONVERSION,
effect of — on capacity to give in adoption, 842
— on etatus, 4, 5, 153
COOKING,
separate evidence of partition, 775
CO-OWNERSHIP, 189
COPARCENER,
who are s, 70 71
who are not s, 435
males only can be s, 605
coparcener's possession is prima facie possession of all s, 589e
coparcenership continues though some members separate, 617
difference between joint tenant and , 562h
purchaser of undivided share becomes tenant in common with other
8, 566
Powers of Coparceners, 567
in case of urgent need may dispose of joint property, 588, 747
INDEX. 1139
COPARCENER— contmued.
may dispose of undivided share for value but not by way of gift or
devise, 665, 587. 616
consent of all s requisite to any gift (Pan jab), 747Z
See Alienation; Representation
in Bengal incapable of dealing veith his share, 581
may redeem from mortgage and claim contribution, 720
separated s must contribute in case of share taken to satisfy a
common liability, 763
not entitled to redeem his share alone, 720
undivided s may take separate interests, 192
and though divided may take jointly, ib.
a cannot by giving costly ornaments to his wife deprive the others
of their share in his acquisitions, 205, 280
may resign his share for a trifle, 611, 752, 762
cannot be compelled to assent to an adoption by a widow, 783, 796, 814
not generally entitled to an account from another , 700c
no ownership of any definite share is predicable of a particular while
united, 635
notice of enhancement of rent by some s held sufficient in Bengal,
567d
comparison of English Law, ih.
adult bound by the transactions of manager when he takes the
benefit, 575, 576
a cannot singly oust a family tenant or enhance rent, 567
in Bombay a person holding with the assent of one regarded as if put
in possession by him, 567 d
some s only not allowed to take advantage of a condition of re-
entry, ib.
Partition between Coparceners, 741 — 754
each 's whole property supposed to belong to common stock, 653
a may demand partition at any time, 617
coparcener's prior engagement inter se bind in partition, 761, 762
coparceners in existence only entitled to a share on partition, 722
a is not liable at partition to make up what he has expended in
excess of his own share, 700
except in cases of dishonest waste, 760
a takes on partition what he has expended in excess of his own share
of debts, 345
absence of some s does not bar partition, 626, 742
after-born s share only their father's share, 722
fraud does not disqualify a from receiving a share at partition, 629,
630, 760
but the fraudulent may be made to restore property sought to be
withheld, 629, 630, 700, 703, 760
purchaser of undivided share has to work out his right by partition, 566
Succession to Coparceners, 61, 70, 131, 323 — 337
a dying without issue his share goes to his undivided s, 329
Suits by and against Coparceners
all s must join as plaintiffs in a suit on a joint claim, 573
1140 INDEX.
GOFABCB^EH— continued.
except when one sues in a representative capacity, ib.
a cannot alone sue to set aside a charge created by another, 568
some only allowed to eject an intruder contrary to wish of another, 561 d
a cannot recover his fractional share in joint property from stranger,
567, 568
a is liable after partition for shares of debts, 720
coparceners are not generally entitled to account from manager for trans-
actions prior to demand, 760
payment to one of several s frees the tenant
coparceners not answerable for separate debts, 588
unless incurred for family necessity, ib.
Suits by and against Coparcener
coparceners who have colluded with a tenant to defraud a co-sharer may
be sued by him in common with the tenant, 570
creditor of one may attach undivided property, 652
See Mortgage, 747
COPARCENER REUNITED, 56, 58, 60, 129, 327
coparceners of equal degree share equally, 131
succession to , 130, 131
See Family, Joint; Interdiction, 652mj
COSHARER. See Coparcener
Property, 1089
COURT OF WARDS. See Adoption III, 853
COURTYARD,
division of a refused, 832
COURTS, HINDU, 233
COURTESANS,
ornaments of exempted from sei^re, 798r
ranked as members of a business association, ib.
See Adoption III., 907
COUSIN
used in a general sense for collateral, 452
united inherits in preference to the widow, 334
first , 126
See Adoption IV., 913, 922
second excludes a third, 447
of five removes inherits, 412
distant if united preferred to widow and daughter-in-law, 553
husband's excludes husband's sister's son, 496, 497
separated first postponed to united half-brother, 334
though separated is preferred to illegitimate son, 444
(= nephew) sister-in-law, 452
INDEX. 1141
COUSIN— continued.
maternal aunt's son postponed to samanodaka, 466
succeeding to a female (Sudra), 511
female . See Adoption IV., 921
first 's son an heir, 460n
See Adoption IV. 915
COUSIN'S DAUGHTER'S SON. See Adoption IV., 918
COUSIN'S SON
prefered to sister's son, 332
See Brother's Grandson
COUSIN'S WIDOW, 454
lier succession, 454, 455
See Stridhana
COUSIN'S WIFE. See Widow of Cousin
COVERTURE. See Husband; Wife; Females; Stridhana; Adoption V,
949
CO-WIDOW. See Adoption VII. ; Succession, 1040, 141, 893
CO-WIFE,
son of as heir, 489. See Adoption III.
CREDITOR,
when bound to inquiry, 9id, 165, 168, 687
when a minor's interests are touched must prove good faith, 687
of the father must establish his claim, 595d, 1089
a joint cannot sue alone, but can give an effectual discharge, 570*
of an undivided coparcener may enforce partition, 582, 615, 652, 686, 720
creditor's assent should be obtained by parcener on partition to secure him-
self against further claims, 719
in partition enforced by share of wife must be provided for, 693
creditor's fraudulent transactions may be rescinded by a coparcener, 688
See Adoption VIII. 1081; Debt; Minor; Partition
CUSTOM; CUSTOMARY LAW,
Its Origin, 659
regarded as based on lost Smritis, 517
the basis of Hindu Law*, 1
duty of conquerors to maintain , 2
to be upheld by the king, 519
cannot be made by one family, 682
but upheld when found, ib.
* On the recognition of custom as a source of law by the Hindu authori-
ties, see R. S. V. N. Mandlik's Vyav. Mayukha, Introd. p. xliv. ss.
1142 INDEX.
CUSTOM, CUSTOMAEY Ij AW— continued.
ascertained from practice and opinions of the more intelligent, 787
caste usage established by evidence and a vote of the caste, 829a
new adopted by a caste, 516
imitative, 403
Its Nature (see belovi?)
supersedes the general law, 1, 153
modifies Hindu Law, 1, 150
subordinated to it, 84, 358, 400, 401
its flexibility illustrated, 616
its tendency to assimilate to the Sastra Law, 9
a particular may be embraced in a wider, 198
is capable of attaching and of being destroyed, 152, 680c
can be abandoned, 4, 516
force of illustrated by Mitramisra and Nilakantha, 516, 516a
not to be controlled by private agreements, 84
must be respected by Courts, 434
under what conditions, 476
recognition of awarding particular side of house to particul'ir son
rests with Court, 945
depending on instances limited by them, 154
bad, immoral, or opposed to public interests not allowed, 154, 519
Different kinds of —
caste approved by the Sastras, 360
See Adoption V. 945, 949
collection of by Borradaile and Steele, 788
by widow postponed to mother, 152, 372, 388
preventing alienation of patrimony except under necessity, 684d, 688t
excluding from share of patrimony, 689^
excluding daughter, 68id
and widow (in Madras), ih.
limiting liability for father's debts, 685, 686
inheritance is regulated according to , 517
subordinated to general Hindu Law, 84, 358, 400, 401
customs of lower castes influenced by those of superior castes, 403
illegitimate sons of Gosavis succed by , 530
some Gosavis marry by , 519
local of male in preference to female inheritance in Gujarat, 151
enlarging widow's power of disposal (Dekhan, Gujarat), 714b
in Gujarat generally rejects adoption, 1065
admits fosterage but sparingly, ih.
allows marriage with maternal uncle's daughter in the Dekhan, 786
of cousins in the South, ib.
family binding, 65i, 559
when texts uncertain, 65
governs intermarriages, 151m
held to govern the validity of an adoption, 6Sld
may make an estate inalienable, 154
binds the holder of a raj, 151, 152, 677
instance of this, 151o
INDEX. 1143
CUSTOM, CUSTOMARY Ij AW— continued,
raj regranted after 20 years governed by former law of succession, 163
when an estate is by family impartible the ordinary law is so far
only superseded, ib.
family excluding partition, 675, 683«
pronounced a question of fact*
In case of Sacred property
governs succession to temple emoluments, &c., 151, 178
See Below
Effect of its relation to the general law. See above, 85, 150
has the force of law, 785, 786, 788/
may preserve or alter the law of the family, 516, 517
as a means of interpretation, 516
controls the received construction of texts, 191 d, 787
replaces the Veda, when the precept of the latter is not decisive, 786, 787
construction of documents showing family , 682r
governs marriage relations, 84, 151m
and the parties, ceremonies, &c., in adoption, 927, 939, 945, 994
governs devolution of sacred property, 199
mode of proof, 218
of a matha or religious community governs succession to its property,
517, 519
if not injurious, 519
governs the relations within a sect or class, 519, 535, 559
of the particular institution makes its law in absence of evidence of the
nature of the foundation, 526
of succession to gurus, 533
regulating property in offerings, 389
gives to widows a power of disposal over husband's property subject or
not to conditions, 714b
makes son liable for family debts, 729
See Eldership
family determines succession to principalities, 677 — 679
may exclude females, 151
Contests as to
proof of , 4, 787, 788
Court to take notice of general , 788
divergence of from the ordinary law to be proved, 151
unless already recognized, ih.
difficulty of this. See Adoption, 918e
refused recognition. See Adoption, 918
the action of the Courts tends to extinguish special usages, 8296
See Adoption, 994, 1017, 1056, 1065; Ascetics; Jains; Khojas;
Sraddha; Usage, 825,
DADU, 537
* Burjore Bhavani Pershad v. Musst Bhagana, L. R. 11 I. A. 7. The
family custom was of a patnibhag, of exclusion of daughters, and of limitation
of a widow's adoption to sons of near sapindas of the husband.
1144 INDEX.
DAIVA MAREIAGE, 481, 484, 486
DAMAGES. See Compensation, 761
DAMDUPAT,
Rule of when applicable, 718t?
not abrogated by Act XXVIII. of 1855, ib.
to whom applicable, ib.
See Inteeest
DAMSEL. See Maiden, 470
DANA. See Gift
DANCER. See Adoption VI., 1009
DANCING WOMEN,
association of not foreign to Hindu system, 798r
adoption by , 960
See Courtesans, 798r; Adoption II., QSik; III., 907, 945
DAIVA. See Marriage, 481, 484, 486
DAS. See Adoption II., 825, 836
Marriage, 81
DASI, 364, 483
connexion with innocent according to Narada, 798r
See Concubine
DASI-PUTRA. See Illegitimate Son
DASNAMAH
elects a successor, 722
DATTA HOMA. See Adoption, 835; VI. 957, 958, 994, 995, 827
DATTAKA SON. See Adopted Son
alone now recognized as substitute for a son, 806
See Adoption IV. ; V. 948
DATTAKA CHANDRIKA,
an authority on Western India, 9, 23
its weight as authority, 13
See Adoption, 953
DATTAKA KAUSTUBHA. See Adoption V., 952
and separate List of Hindu Authorities
INDEX. 1145
DATTAKA MIMAMSA,
an authority on Western India, 9, 23
its weight as authority, 13
See Adoption IV., 947, 949, 950
and separate List of Hindu Authorities
DATTEIMA,
meaning of, 853
DAUGHTER,
Her Status
her position generally inferior to widow's according to Privy Council, 97
contra in Bombay, 97, 98
position of in undivided family is the same as that of sister, 333
by marriage passes into husband's family, 120
hence does not share father's exclusion from caste, 121
not named as representative of collateral line by Vyav. Mayukha, 441
Her Relation to Father and his Estate
inherits from her father, 96, 261
daughter's claim to inherit inferior to adopted son's, 942
succession to her separated father's property, 82, 96, 406ss, 428, 432, 437,
438, 470, 497, 564
origin of the right of succession of , 97, 397
it is still postponed to that of male collaterals in some castes, 684d
gradual recognition of as heir, 803
daughter's portion, 691t
daughters of the same condition inherit equally, 97, 417
cannot inherit in an undivided family, 332, 333, 335, 413
inherits in a divided family, 96, 406
excluded in some Narvadari villages, 406
succeeds on failure of widow, 260
preferred as heir to a daughter-in-law, 119g, 409, 411
to step-mother, 409
to separated brother, 411
brothers exclude foster s, 427
excluded by brethren in some castes, 684d, 722a
is excluded by brotlier and nephew of deceased in undivided family, 470gf
daughters married preferred according to their indigence, 134, 417
daughters unmarried preferred to marired, 96, 97, 134, 308, 309, 417, 476
reason of this, 97
daughters unendowed preferred to endowed, 134, 308, 417, 418, 476
unmarried in undivided family takes a quarter share, 333
daughters excluded at first as unmarried succeed in preference to their
sister's heirs (Bengal and Madras), 319a
in Bengal a married having or likely to have a son succeeds, 474
childless widow excluded in Bengal, 417
her right not extinguished by her becoming such, ib.
Bengal law compared with that of Bombay, ib.
barrenness of a not a cause of exclusion, 99
and illegitimate son of a Sudra take equally, 97, 472
1146 INDEX.
DAUGHTER— contiriMed.
unchaste does not succeed to her parents according to Macnaghten,
149z
step inherits, 502
Estate taken by Daughter
in the Pan jab generally transmits no right, 406
in the Pan jab usually excluded, 407
lands not given to s by the Eajputs beyond a life-interest, 301e
growth of father's power to provide for out of tribal lands and to-
take her husabnd into the family, 407
takes limited interest in property inherited from father in Bengal, 407
in Madras and Bengal her estate assimilated to that of widow, 139, 407
Maithila law, 316
but in Bombay a takes it as Stridhana, 407^ 408
daughters take separately, excluding survivorship, 98
two or more s divide, 417
this view is held by Vyav. Mayukha, 101
in Madras s take as a class with survivorship, 100
takes in Bombay an absolute estate transmissible to her own heirs, 98^
100, 294, 311, 407
not a mere life-tenancy, 91
different view of the Privy Council, 408
daughters are entitled to shares in a partition according to the Viramitro-
daya, 288
daughter's share being one-fourth of a son's, 629
takes property on partition as Stridhana, 216, 284
enitled to maintenance and residence, 64
and marriage expenses, 413, 470g, 691, 748
of a deceased coparcener must be maintained, 227, 241, 691e
of a reunited coparcener must be provided for, 133, 413
of a predeceased son entitled to maintenance, 690
and a marriage portion, ih.
of a concubine entitled to a provision, 164
reasonable provision for must be made good by son, 205, 333
Relation to Mother and her Estate
daughter's succession to her mother, 134, 139, 258, 295, 310, 311, 471, 478
preferred to son in succession to mother, 514
daughter's son, 473
daughter-in-law, 451
takes mother's property after payment of her debts, 438, 472
unmarried s share equally with sons Anvadheya and Pritidatta Strid-
hana, 135, 259, 486A;
unmarried s alone succeed to Yautaka Stridhana, 309, 311, 486fe
has full power over Stridhana devolved from her mother, 288
Succession to her
in Bengal on the death of property goes to her father's heirs, 407
she cannot alienate it to their detriment, ih.
devolution of property taken by s, 316, 319, 418, 419
As to Adoption
not to be adopted, 790, 833, 834
INDEX. 1147
DAVGB.T'EIl— continued.
existence of no bar to adoption, 778, 1050
See Adoption, 842, 867, 978, 986; Sister's Daughter; Sister;
Brother
DAUGHTER, ILLEGITIMATE,
cannot inherit, 408
whether of a Sudra can inherit is a question, ib.
is entitled to maintenance and marriage expenses, 408
DAUGHTER'S DAUGHTER,
daughters receive a trifle when there are daughters, 139
daughters receive a trifle in Anvadheya and Pritidatta Stridhana at
division, 135
not an heir to a male, 447
her right admitted to Balambhatta, 121n
succession of to Stridhana, 139
next to daughter in succession to grandmother, 478
DAUGHTER'S GRANDSON
inherits to a woman, 503
postponed to brother's grandson, 450
DAUGHTER'S HUSBAND. See Adoption IV., 922
DAUGHTER'S SON
of an ascendant an heir in Bengal, 462
daughter's sons take per capita, 101, 419
precedes grandson's widow, 419
excluded by a great-grandson in the male line, 371
and illegitimate son of a Sudra take equally, 99
inherits separate property of a united coparcener, 99
inherits to a separate grihastha, 99, 141, 409
takes as full owner, 419
inherits to a married female, 140
daughter's sons preferred to son's sons, 479
excluded by a daughter, 140, 409, 419
when shares the inheritance with his aunt, 409
step inherits, 602
Sudras may adopt , 924
Lingayats may adopt > *&•
See Adoption, 800, 801, 841, 918, 919, 944, 946, 1031, 1061
DAUGHTER-IN-LAW
may take gift or legacy from her father-in-law if not prejudicial to others'
rights, 281
succession of , 451, 452, 495
Balambhatta and the Viramitrodaya on 's right to inherit, 496
preferred to mother-in-law as heir to her deceased husband, 387
to son's daughter, 495
1148 INDEX.
DAUGHTER-IN-LAW— confmMed.
to first cousin's widow, 452
excludes distant cousins, ib.
is excluded by brother, 408, 427, 452
brother's son, 431, 452
daughter, 409, 452
daughter's son, 419
entitled to maintenance, 239, 240, 244, 692, 696d, 697
daughter-in-law's claim on father-in-law as such denied, 694^
does forfeit her right to maintenance by residing with her father?
694
has a better claim than her father-in-law to adopt to her husband, 352
See Adoption III.
has a better claim than her mother-in-law, 384
See Adoption III.; VII., 1031, 1038, 1041; Widow
DAUHITRA, 81, 121n
DAYA
compared with inheritance, 55, 63, 232, 661, 629, 656
participation by birth is the typical form of , 321
widow has independent power over , 288
DAYA APRATIBANDHA. See Apratibandha Daya
DAYABHAGA,
succession under the, 142 — 148
DAYADA, 125
DAYAVIBHAGA
defined, 55
includes rules for the division of an estate, 56
of Jumuta Vahana, see separate List of Hindu Authorities
DEAF; DEAFNESS
disqualifies for inheritance, 141, 541
See Adoption III., 848; Disqualification, 541
DEATH. See Civil Death; Presumption
DEBT,
Joint Family's
contracted by the manager bond fide presumed to be for the common
benefit, 687
and binding on other members, 688
a first charge on joint estate, 689
incurred by a member under pressure of distress is binding on all, 688, 688
family s to be discharged (but this not indispensable) before par-
tition), 718
INDEX. 1149
B'EBT— continued.
debts of a joint business must be paid before profits are distributed, tb.
debts how distributed on partition, 71755
when s are distributed creditors' assent should be obtained, 719
Separate —
personal of a deceased member not a charge on the joint estate,
unless his interest was attached or vested in ofi&cial assignee before
his death, 161
not even for family, if no necessity, ib.
Father's and Grandfather's
son bound to pay father's and grand-father's s, 75, 161, 164, 165, 651,
567 d, 668, 596, 685/, 686
not during their life, 59755, 728
the Hindu Law insists strongly on payment of father's s, 572
son's liability according to Yajnavalkya and the Mitakshara, 108755 ♦
obligation to pay father's s a part of the inheritance, 163, 166, 168
estate taken by son is assets for paying father's s, 566y
obligation to pay father's s depends on their nature, 73, 164, 192
son liable to pay independently of assets? 1041
liability to pay father's s limited to those incurred for the family?
686, 686
impartible estate liable to pay father's s, 163t/
ancestral estate in the hands of a son liable for father's s, 76, 166,
192, 597
translation of this into power of the father to encumber in his life, 572
a son must pJiy father's s even in his life? 572, 581, 582
hence a sale of family property to pay these binds son, 679
liability to pay father's s after his death and in his life distinct, 685/
son's liability to pay father's s incurred before partition, 720gf
son liable by custom for all s properly incurred for family, 729
father's s not prodigally contracted may be charged on the inheritance,
166, 168, 192
comparison of English Law, 578a
several sons liable according to their shares, 719e
separated sons not liable for father's s, 166, 720
property not hypothecated to pay father's s, 73, 161, 193, 686/
community of obligation amongst successors not recognized by Hindu Law
except in joint family, 670
unsecured s not a charge on the estate, 192, 193, 685
son not directly responsible for unsecured s except after father's
death, 164, 582
securities created by father unless profligate bind sons, 73, 164, 672
responsibility of son according to Hindu Law arises only at his majority,
164, 578, 682, 1088
minor bound to discharge on attaining majority, 164, 1089
decree-holder for father's s preferred to one for owner's s, 688s
Son's —
father not to pay son's s, 550
must pay s necessarily incurred by sons living with him, 729
Husband's —
1150 INDEX.
J)'EBT— continued.
widow bound to discharge husband's s, 94
not if barred by limitation, ib.
Coparcener's —
undivided property not answerable for separate 's , 72, 164, 718,
720
of a member to the common estate set off though barred by limitation, 689
apportionment of s amongst sons and successors, 570, 703
Annexed to Estate taken
obligation to pay s dependent on taking property, 76i, 160
is limited by Bombay Act VII. of 1866, 76t, 165, 686, 718
income liable to pay s if property descends as hereditary, 161, 166
brother answerable for brother's s only to extent of assets, 667o
See Adoption VII., 1024, 1036, 1041, 1042; Charge; Co-
PARCENEE ; Decree 585 ; Daya ; Family Partition 708 ;
Obligation
DEBTOR
one of several joint s may represent all in paying, but not in
resisting payment, 570s
agriculturist under Native Governments, 717
DECISIONS OF COURTS,
weight to be given to, 789
DECREE
may award arrears and future payments, 253, 693r
awarding separate interests destroys joint estate, 633, 634, 765
comparison of English Law, 634d
right to partition under lost by non-execution, 616e
effect suspended by appeal, 5666, 615, 642
for partition of land paying revenue to be executed by the Collector, 723
for maintenance a charge on estate, 693r
against a member of joint family as affecting other members. Bliss, 583t"
against representative member on a joint debt may be executed against
the family property, 574
law as laid down in N. W. Provinces, 575
in Madras, 585
against manager only, binds the whole estate, 591
against a father a charge on property, 686
not to be satisfied out of his share at his death? 585
Judicial Comimttee's decision contra, 168, 585
effect of the execution of a for father's debts against ancestral
property, 166
against a widow for arrears as a charge; only her estate passes, 592d
against the widow ; when it binds the reversioner, &9v
See Adoption VIII., 1082
DEDICATION
understood in grants to Brahmanas, 128/
to religious uses, 156, 160
INDEX. 1151
DEDICATION— con ttntted.
to religion inalienable under most systems of law, 166, 185o, 623
the first exception to inalienability of patrimony, 191n, 195
connected with the growth of individual ownership over wastes, 196*
to an idol creates a trust, 156
See Endowment, 155, 522
DEDUCTION
in partition in favour of eldest son, 733, 735
disallowed, 734
See Partition; Distribution
DEED
of partition not essential to partition, 6315, 771
constitutes separation, 765
required by some castes, 6315
held inoperative as not acted on (Madras), ib.
See Registration
of adoption not necessary. See Adoption VI., 961, 989, 991
DEFECT
of son warranting adoption. See Adoption III., 817
of organ. See Disqualification, 541
DEFENDANT,
law of when it prevails, 5, 6, 7
DEGREES
of affinity obstructing marriage, 837, 916
prohibited extend to great-grandson of one given in adoption, 838s
under the Canon Law, 236
See Adoption II., 837, 838; IV., 912, 916; VII., 1017, 1018
VIII.
DELEGATION
by husband. See Adoption III., 855, 856, 946, 947; VI., 889.
DEMANDANT,
partition confined to the , 617
DERANGEMENT
presumed from prodigal alienations, 204
See Lunatic; Adoption III.
DESAI, DESAIGIRI. See Vatan; Allowances, 425
DESCENDANT
what s form a united family, 603
which 8 take the inheritance by representation, 61, 62
such s extend to third generation, 604
1152 INDEX.
DE SCE^BA^T— continued .
rights on partition between the ancestor and his first three s, 704, 705
first three s of a separated person take per stirpes, 74
descendants of an absentee may claim down to the seventh degree, 627
DESCENT,
law of is not regarded as inherent in land, 683^
law of is determined by personal status, 4, 683z
or by family custom, 4, 151, 675
Zamindari or Vatan aliened or divided is freed from special rule of ^
68Bz
comparison of English Law, ib.
See Devolution; Vatan
DESGAT VATAN. See Vatan
DEVASTHAN
does not revert, 681/
See Dedication 176o ; Grant; Endowment, Keligious
DEVISE
is on the same footing as a gift inter vivos, 280
merely for " Dharma " ineffectual, 224
executory (remote) not recognized by Hindu Law, 90, 180, 184
not to be regulated by English Law, 90/
to several sons with cross remainders is good under Hindu Law, ib.
of inam village to widows against son, 734
alienating ancestral property void against a son unseparated, 740/i
to a persona designata as adopted son effectuated, 1077
of land once inoperative in England without assent of heir, 214to
See Adoption VI. 979; VIII. 1077, 1078; Bequest; Will 734,
740
DEVOLUTION,
course of cannot be altered by private agreeemnt, 4, 151m, 178, 549
prescribed by law, 179, 184/, 549
of jagirs and other public grants governed by the intent of sovereign, 180
See Vatan
DHAKMA,
the rule of law, 233
what it comprises, 30
a devise merely to ineffectual, 224
engagements against ruler's do not give a right to enforcement, 188
See Devise
DHARMA-PATNI,
alone inherits, 82
who is a , ib.
DHARMA-PUTRA, 804c, 1022, 1085
INDEX. 1153
DHAKMASASTEAS, 30
their divisions, 31
of Usanas, 34
of Sankha, 37
of Manu and Yajnavalkya, 40, 41 •
Asvalayana, 46
DHAEMASINDHU,
an authority in Western India, 12
Dharmasindhu's weight as authority, 13
compiled by Kasinatha, 25
DHAEMASUTEA, 31
Gautama, 32
Vasishtha, ib.
materials of which s are constructed, 34
Dharmasutras existed in the time of Patanjali, 36
four of them composed in the South of India ; the fifth probably in the
North, 37
DIKPEADAESANA, 100, 267/c, 607
indication of a principle to be followed, 71
DIKSHA,
meaning of, 532q
Jangama, ih.
Triordha, 533
DINAEA, 44, 45
DINING APAET,
a sign of partition, 637
but not conclusive of partition, ih.
DISCIPLE,
natural son may become, 524
ceremonies at the nomination of , 523
succession of to Guru, 468, 520
who deserts his Guru forfeits succession, 537
takes equally with a united Gurubhau, 522
succeeds to a Gosavi, 521
disciple's disciple inherits, 527
succession of female to a Gosavi, 526
See Fellow-Disciple, 527
DISEASE, INCUEABLE,
sufferers from disqualified to inherit, 149
DISINHEEITANCE,
by father of son by birth or adoption for adequate reasons, 549
of adopted only as of begotten son, 1016, 1032
H.L. 73
1154 INDEX.
DISINHERITANCE— contmttei.
son disinherited may be restored, 549
no by will, 549, 984n
comparison of Roman and Athenian laws, 549a;
See Adoption III., 844; VII., 1032, 1033
DISOBEDIENCE,
le does not disable the wife from inheriting, 406
DISPOSITION,
power of limited by Hindu law, 194, 366
See Adoption VI., 978, 984; VII., 1031; Family; Father; Gift;
Maintenance
DISQUALIFICATION,
persons disqualified to inherit, 141, 53955
arising from : —
insanity, 141, 541, 545
subsequent insanity no , 645
incurable blindness, ib.
but only congenital, 150
lameness, 541, 543
leprosy of a virulent type, 149, 526, 644
deafness and dumbness, 141, 544, 545
enmity to father, 547
addiction to vice, 550
adultery and incontinence, 562
by loss of caste cured by penance, 56c
loss of caste now no , 149t/, 403, 539, 610, 816
son of disqualified father may take his father's place down to the partition
of the inheritance, 549, 817, 149
disqualified father replaced only by begotten son (or Kshetraja), 542
not by one born or adopted after succession or partition, 542, 545, 553,
689, 722, 848
simple disobedience of wife no , 406
under the Mitakshara and the Mayukha barrenness in a daughter no ,
474
to inherit from defect arising after inheritance or partition does not cause
forfeiture, 417
as ex. gr. in case of lunacy, 545
the rule of exclusion qualified by custom, 150, 689z
for inheritance to be scrutinized by Courts, 650
for sharing under customary law, 689^
to inherit excludes from a share on partition, 629
and from right to demand partition, ih.
but this right to exclude might be waived, 690
disqualified father not entitled to a share on partition, 629, 749
disqualified persons entitled to maintenance, 241, 689t/
wife of a disqualified person may adopt, 817, 846
by custom, not by the Sastra, 546, 546o
See Adoption III., 844, 847, 848
INDEX. 1155
DISTKESS,
warrants alienation of common property by coparcener, 588, 728
in husband may deal with wife's Stridhana, 86, 264, 283, 294m, 303
season of justifies gift of a son— see Adoption V., 690
See Coparcener, 746; Debt, 588, 688
DISTEIBUTION,
capricious or inhumane of property not allowed, 205, 206
of property naturally indivisible to be equitable, 673
of property amongst the Jews, 735g
unequal when valid, 705, 706, 738
subject to control by the Courts, 737
not to be effected by will? 705*, 740
allowed by custom, 706t)
has regard to property as it actually subsists, 698
by division of proceeds, 642
of liabilities, 684, 721
in specie when takes place, 704
is equal on a partition of ancestral property between an ancestor and his
descendants to three generations, ih.
on a partition between brothers, 710
on a partition between reunited coparceners, 715
on a partition between collaterals is per stirpes, 710
partial on a forraer occasion how taken into account, 645, 710
of rents and profits is not conclusive of partition, 717
of debts, 717, 718, 719
by marshalling in favour of creditor in possession, 589, 710
See Division; Partition
DIVISION,
none between husband and wife, 85, 131
cannot be partial, 613, 646, 717
except by consent, 767
of a religious fund or dedication by turns of office and emoluments, 716m
patrimonial lands not divisible according to the Smritis, 612k
See Property, Sacred
may be made of upadhyapana by custom, 716m
not completed creates no separate interests, 635
unequal when good, 738, 763
of rents and profits a permissible partition, 641, 717
of income for convenience does not amount to a separation, 641
of the profits of a Vatandari village, 717
agreement to make a does not sever interests, 634
will Courts ever refuse to decree a ? 626
See Family; Partition; Separation
DIVISION OF PROCEEDS,
a mode of joint enjoyment, 643
of partition, 641
1156 INDEX.
DIVOECE,
by Ghatasphota, 552
by Soda chiti, 555
at husband's will, 491o, 492
by agreement in some castes, 490
seldom occurs, 492
allowed amongst the lower classes, 490
not in the higher ones, ib.
disentitles a woman to maintenance, 556o
DOCUMENTS. See Adoption III., 853
DONATIO MOETIS CAUSA,
recognized by Hindu law, 214
DOEIK. See under Castes, 653
DOS LEGITIMA, 3031
DOWEE (English Law), 303Z, 376
capable of release not of alienation, 287a;
See Palla, 395^1
DEAUPADI,
legend of, 270
DEAVIDA COUNTEY. See Adoption II., 869, 870
DUHITEA-SUTA, 79
DUMB, DUMBNESS,
congenital disqualifies for inheritance, 141, 150
of the son born does not justify adoption, 817
See Adoption III., 848; Disqualification, 544
DUPLAS. See Tribes, 275
DUTY,
of a Hindu depends on his personal law, 7
indispensable ; discharge of a ground for alienation by single co-
parcener, 688t
DVAITA NIENAYA,
is a work by Sankara, 21
necessary to explain some parts of the Mayukha, ib.
DVYAMUSHYAYANA, 808, 819
of the original type not now recognized, 818
in what sense now recognized, ib.
not unusual in the Southern Districts of Bombay, 809
INDEX. 1157
DVYAMUSHYAYANA— conftnued.
status of the son of , 810
celebrates the Sraddhas of both fathers, but his son those of the grand-
father by adoption only, ib.
form in adopting a , 1001
Dvyamushyayana's right of inheritance, 1061, 1062
not to be set up in a suit on ordinary adoption, 1072
See Adoption IV., 927, 944; V., 953; VII., 1062; VIII., 1072
DWELLING. See House
EAENINGS,
are at the disposal of the woman according to Jimuta Vahana, 286
of a woman belong to her husband, 279
by prostitution belong to husband, 483
See Stridhana
EAST INDIA COMPANY'S
power to legislate, 1
EATING,
separate evidence of partition, 774^5
ECCENTEICITY,
implying injustice ascribed to derangement, 194
EGYPT, 92s
EJECTMENT,
by wife against her husband, 287a;
ELDEK BRANCH,
succession of by custom, 682, 683
ELDER; ELDERSHIP,
advantage allowed to by custom, 716
gives precedence, 669, 671e
and preference for office, 684
precedence allowed by some family laws to son of elder wife, 827s
gives title to the right or western side of family house in partition, 749
gives a perference as to custody of family idols, 716m
supremacy annexed to connected with the sacra, 669
the brother has precedence in sacrifices and marriage, 820b
stil of consequence, 676o
transition from to single succession, 669, 672k
the mode of establishing a source of disputes in India and
Europe, 676o
See Brother ; Manager ; Precedence ; Primogeniture ; Raj
ELECTION, 1079t
1158 INDEX.
EMANCIPATION,
under Roman law son injured by adoption claimed , 955o
EMIGRANT HEIR,
descendants of , 70
See Absentee ,
EMIGRATION,
does not alter the law of inheritance, 3
ENDOWMENT,
creation of s, 198, 155
interest of the State in religious s, 211
gift for religious by coparcener approved, 616
no restriction on creation of religious by grant, 185o
religious not allowed to cover a private perpetuity, 618
consent of whole family may annul a rivate religious , 743
charitable s are inalienable according to Madras and Bombay High
Courts, but alienable for benefit of endowment according to Calcutta
and Allahabad High Courts, 176, 199, 623, 744
and irresumable, 199
endownments never revert, 681/
endownments frequently confined to a single family, 199
property given to a purohit is in the nature of an , 198
usually impartible, 199
succession to be governed by custom, 199
See Vritti, 671e
may be temporarily pledged for necessary purposes, 623
succession to an determined by custom, 198
holder of an cannot impose rules on successors, 199
or alter succession, 74, 521«j
succession to religious is per formam doni, 198k
See Alienation; Ascetics, 521w ; Trust; Trustee
ENEMY OF HIS FATHER,
defined, 547, 548
is especially one from whom religious benefits are not obtainable, 649, 661
is disqualified from inheriting and sharing in partition, 149, 648, 629, 689
ENGAGEMENTS,
Hindu law enforces, 8
ENGLISH LAW,
operation of in a presidency town, 3
EQUITY,
aids Hindu law, 8
decides when Smritis conflict, 13
rules of decide questions of partition, 757
See Adoption ; Hindu Law ; Interpretation ; Jurisdiction ;
Partition
INDEX. 1159
EEROE. See Acquiescence; Adoption VIII., 1078; Ignorance, 1077, 1078;
Misrepresentation
ESCHEAT,
State takes by on failure of heirs proved, 129
and with incumbrances, 6645
ESTATE,
one cannot create a new form of , 179r, 192, 183
solely in futuro not allowed by Hindu law, 212
not to be in abeyance, 179
deferred in enjoyment, 1022
right of father and son are equal in ancestral , 71
mortgaged property until recovered continues to be a joint , 633
family once inalienable, divisible only for use, 672fe
connexion with this of the right of pre-emption, ib.
how the family became alienable, ib.
and partible, ib.
ancestral in the hands of sons liable for father's debts, 76, 163, 168
may be encumbered by any coparcener in an emergency, 747
separate liable for debts in the hands of the heir, 660
See Adoption VI., 978, 980, 981, 982, 983, 984; VII., 1045, 1050;
VIII., 1080; Alienation; Debts; Descent; Devolution;
Father; Grant, 6646; Property; Stridhana ; Vatan
ESTOPPEL,
fed by subsequently acquired interest a doubtful principle under Hindu
law, 1902!
in case of adoption, 969ss, 1073
where adoption has been admitted by conduct, 1074
does not arise from denial of adoption, 1083
against reversioner who concurred in an alienation by a widow, 710/
against a mortgagee who has sold, 720
See Acquiescence; Adoption IV., 943; VI., 969; VIII., 1073,
1074
ETHICS,
relation of to Hindu Law, 8
EUNUCHS
entitled to maintenance only, 690a
EVIDENCE
of caste custom. See Custom *
of family custom by declaration. See Custom, Family, 161m
Of Partition, not peculiar, 631
conduct and oral testimony are , 631, 637
is a question of intention, 631, 632
signs according to the Hindu Law, 636ss
circumstantial sufficient to prove partition, 638
of separation is on a matter of fact, 638
1160 INDEX.
EVIDENCE— contmued.
separate possession of portions of the property, once joint, raises a pre-
sumption of separation, 640
false statements made for the common benefit are not of partition,
641
exclusive posseseion for thirty years affords conclusive of partition, 643
separation for fifty years was pronounced , 639a
taking profits in certain defined shares is not conclusive , 641, 642
living and dining apart is not conclusive , 637
separate performance of religious rites is not conclusive , ih.
proof of instrument by single witness by assent, 218
admissions not to be used by strangers, 189n
burden of proof in case of separate acquisition disputed, 669ss
of adoption, 965, 1072
decree on a contested adoption is not when there is a change of
parties, 1082
See Adoption VI., 964, 1005, 1007; VIII., 1072, 1082; Burden
OF Proof ; Presumption ; Stranger
EXCLUSION
from caste, 944
from caste extends to sons born after but not to those born before the
expulsion, 121, 549
sons born after expulsion from caste take the outcast father's place, 549
daughters are not excluded with their father, ih.
from inheritance and partition on account of vice, 6Q9y
under customary law, ib.
for twelve years extinguishes the right, 635, 645
persons excluded from shares are entitled to maintenance, 241, 629, 689,
709
See Disqualification; Limitation; Possession, 650d
EXECUTION
against one coparcener affects only his share, 615/
liability of the son's share in against the father discussed, 57655
a " reversioner's " contingent right cannot be sold in , 89
See Debt; Decree; Sale
BXECUTOE,
under Act V. of 1881, 220, 221p
may pay a barred debt, 572
in mofussil may sue without probate, 221
executors are the representatives of the testator, 162
executor's legal position discussed, 220
takes a qualified " universitas " in personal estate (English Law), 209
takes subject to survivorship, 220
EXECUTOKY DEVISE. See Devise, 90
EXPECTANT HEIES
not to be prejudiced by widow,-' 306
INDEX. 1161
EXPECTANT INTEREST
probably not saleable, 190^, 246c
EXPENDITURE; EXPENSES
of united family defrayed out of the family estate, 749
authority of the wife as to household , 86s
of a coparcener. See Partition, 760
previous inequalities of not taken into account in case of partition,
698, 761
unless fraudulent, 760
marriage of children to be provided for on partition, 691t, 713
of a daughter of deceased member must be provided for, 470g
funeral of father a charge on the common property, 686/i
See Assent, 564s
EXPRESSIONS,
operative for adoption, 960
EXPULSION
from caste. See Exclusion
EXTRA SHARE. See Distribution (unequal); Partition
" FACTUM VALET "
discussed, 208, 234, 737, 818
FADERFIUM, 269d
FAMILIA, 164o
FAMILY ARRANGEMENT,
given effect to, 631, 646
FAMILY CUSTOM,
how proved, 4, 156m
See Custom
FAMILY DWELLING
divisible? 717
belonged to eldest son under old English law, 734o
but by custom to the youngest, 675n
FAMILY, HINDU,
the cherished institution of the Hindus, 231
father's duty to provide for , 601
no transaction approved which tends to indigence of , 59d
Adoptive, 957, 1010
Divided. See Adoption III., 267, 896, 897
succession in , 73-82, 96-107, 123-126, 338-466
See Inheritance; Partition
1162 INDEX.
FAMILY, HINDU— co?itmMed.
Joint or United
normal state of a Hindu is one of union, 562
dyescribed, 603
how constituted, 561
is of two kinds, undivided or reunited, 603
characteristics of , 663
Hindu regarded as continuous, 561
extends to great-grandson in existence, 616, 607
in a presumption of all property being joint, 666m, 6706
'son cannot demand a declaration of his right to specified undivided share,
1079
not a partnership, 560c
usually represented by a manager, 668
compared with joint tenants under English Law, 562/i
principle of the and gotra adopted by the Sudras to govern
adoption, 922
Sudras illegitimate sons may inter se form a , 604
and probably also with legitimate half-brothers, ih.
may be formed by prostitutes or dancing girls, 662/i
how regarded as to mutual responsibilities, 700, 869, 896, 897
reciprocal rights and obligations, 662
members jointly liable for common debts, 570
powers of a member of a , 567, 688s
rights of coparceners in , 668
gift to is joint property, 606
acquisitions of members accede to joint estate, 699
including manager's gains, 703/
where one member has disappeared the rest may deal with common
property in good faith, 667
transactions of require unanimity according to the older
authorities, 564, 566, 667
view of the Viramitrodaya, 564*
alienation of undivided share now allowed. See Coparcener, 565
origin of this, 566
rights of a grantee from one member subject to rights of coparceners, 647
suits by , 667, 568
when a carries on trade all members must join as plaintiffs in a
suit, 673
suit by one member followed by common suit, 666
suits against , 576, 576
where there is effectual representation, all may be bound, though not
immediately made parties, 573
liability of sons for father's acts and suits put on the ground of represen-
tation, 574, 576, 678
where interests are common one member of a sometimes taken
to represent all in a suit, 674
contra, 596
infants held liable though manager had had no right to defend in their
name, 673
INDEX. 1163
FAMILY, HINDU— conimued.
sale or incumbrance by a single member valid in case of urgent need
688t, 747
grantee from one member may enforce partition, 661
a decree against the father may be executed against the family property
574, 575
inheritance in a , 61, 321
separation of a , 607, 725
See Adoption passim; Alienation; Coparcener; Debt, 688;
Expenditure, 747 ; Illegitimate Son ; Liability ; Manager ;
Presumption ; Property ; Sacra
Family Reunited, described, 607
formed only by those who were before united, 607
FAMILY NECESSITY,
cases showing what is a , 569n
a ground for alienation by any coparcener, 688t, 747
FAMINE,
a reason for giving away a son, 951
See Adoption
FAEIKHAT, 762
or deed of release in case of partition, 771
See Partition
FATHER
once supreme over family estate, 657
growth of restraints on his authority, ih.
in case of father's incapacity his son takes his place, 594, 610o
has uncontrolled power before birth or adoption of a son, 596g
son given equal rights with in grandfather's estate come to the
father, 657
gradual development of this right, ih.
hence a right of interdiction, 193
owner of ancestral estate in same sense as sons, 595
as manager is by Hindu Law in the same position as any other manager
(see Below), 594
father's relation to son as joint owner and sole manager, 1029/
and representative, 574, 653
may deal with share of infant but not of adult son? 578
father's power in distributing ancestral and self- acquired property, 704 —
706, 727, 73355, 740
may alien or incumber ancestral estate in certain cases, 168, 169, 192,
594, 595, 687
effect of decrees against as regards the sons, 578, 652, 653
can alienate patrimony without the consent of his sons, 203, 668, 677, 578.
601x, 739
shown by their attestations, 593^
may dispose of ancestral estate on failure of sons or separation from
them, 73
1164* INDEX.
FAMILY, nrnDTJ— continued.
rulings of the courts extend his powers, 165, 168, 593, 596, 687
making excessive alienation presumed deranged, 203
father's limited power over property a general rule of jurispdudence, 705n
father's power of distributing at pleasure recognized by Jagannatha, 233
contrary to Mitakshara, ib.
father's power of distribution amongst sons, 705n, 733ss, 740
cannot make a gift or bequest to one son to the prejudice of others, or of
a grandson,. 205, 206, 705, 736,^737
except of s«lf -acquired property, 205, 207, 703, 733
may dispose of self- acquired property, 703, 733, 739, 760
is free to deal with his own share, 168
subject perhaps to subsistence of family, 192, 193, 694, 1089
may make religious gifts within moderate limits, 203
gift by to adopted son not affected by subsequent birth of sons, 1078
cannot wholly disinherit a descendant, 740
except for adequate reasons, 549, 551, 739, 815
As Manager, 568, 576ss, 694
the care of the family especially incumbent on , 694
is naturally manager of the joint family estate, 568
as manager can be superseded for incapacity by his son, 594
in same position as mother, 685
presumption in favour of his transactions, 592, 593
allowed disposal in ways opposed to good management, 595
not liable to pay his son's debts, 550
unless incurred for indispensable duty, 688
father's transactions plainly detrimental whether binding on the family
estate, 693
may charge the whole estate with debts not prodigally contracted, 168,
192, 597, 653
purchaser or incumbrancer from bound to inquiry, 168, 596
son bound to pay debts of , 75, 164, 697
son in Bracton's time bound to pay father's debts out of inheritance in
England, 166
his contracts and obligations pass to the heir, 75
his promises morally binding, 203
and sacred, 686g, 1087—1090
as also his donations to charities, 686gf
instruments made under distracting influence void by Hindu Law, 193a,
697
son suing to upset father's transactions bound to prove his non-liability,
696
suit against does not affect sons not joined, 596
liability of the son's share in execution against the discussed, 169,
576ss, 687, 652
decree against the alone will not ordinarily bind his sons as to ances-
tral property, 167, 696
but will where decree is against as representative, 663
effect of a sale in execution of the interest of the in ancestral
property, 167, 575, 696, 653
INDEX. 1166
FAMILY, HINDU— contmued.
separated from brethren is the origin of a new line of succession, 73, 1046
when inherits, 102, 324, 346, 379, 426
when succeeds to his daughter, 134, 309, 470, 481, 484
separated preferred to brother separated, 427
preferred to mother as heir by the Mayukha, 102, 422
or ascendant may separate from his descendants at any time, 609
cannot, it seems, separate sons inter se against their will, 6175s
cannot make an unfair partition, 645, 733
may reserve a double share of self- acquired property, 729
or alienate it at his pleasure, 705
held answerable in partition for personal debts, 597
in Punjab a father's division revisable at his death, 617
when is entitled to maintenance, 255, 603, 723, 1028
bound to support indigent son, 723
See Adoption IV., 913, 941, 944; V. passim; Charges; Debts;
Decree, 166, 686; Liability; Patria-Potestas ; Property;
Securities ; Suits
FATHER'S BROTHER'S DAUGHTER'S SON. See Adoption IV., 941c
FATHER'S MATERNAL AUNT'S SONS
are Bandhus, 123, 457
FATHER'S MATERNAL UNCLE
is a Bandhu, 458e
FATHER'S MATERNAL UNCLE'S SONS
are Bandhus, 123, 457
FATHER'S PATERNAL AUNT'S SONS
are Bandhus, ib., ih.
FATHER'S SECOND COUSIN
is postponed to paternal aunt in a divided family? 463
FATHER'S SISTER'S SON
is a Bandhu, 461
FATHER-IN-LAW. See Adoption III., 844, 851, 882, 895ss
FEE,
gratuity of a woman, 139
goes to her husband, ib.
See SuLKA; Stridhana
FELLOW-STUDENT,
when inherits, 126, 326, 451, 468, 539
fellow- student's disciple, 639
1166 INDEX.
PELLOW-DISCIPLE
inherits, 527
of a Guru, inherits, 628
FEMALE GENTILE SHIP, 27255
not necessarily indicated by the use of a " matronymic," 399w
traces of in the law of succession, 274, 399
sister's son heir to uncle among original tribes, 801fe
in Malabar, 608h
amongst Garos, 398
Khasyas, ib.
Koches, ih.
Nayars, ib.
in Travancore, ib.
FEMALE,
position of females in early times, 261, 270, 275, 290s5, 793, 797, 800
females regarded as chattels in some tribes, 397
under tutelage and generally dependent, 284
female's consequent incapacities, 246w
regarded as necessarily dependent by the Teutonic laws and in China,
262wj
gradual recognition of the capacity of females to hold property, 259, 263s5
favoured by Balambhatta. See Adoption V., 943
females may succeed to some priestly emoluments appointing substitutes
389
females may become Gosavis, 626, 531
Vairagis, 637
females may be excluded by family custom from inheritance, 673
females not excluded from succession to inam property, 407
females could inherit book land in England, 82tt;
females in the Punjab do not transmit inheritance, 177
females cannot form a joint family, 364 ,
cannot generally transfer her right as wife, widow, or mother, 246to,
287w?
possible exception, 287to
a gift to females may be accompanied with power to alien, 297c
so as to a devise, 984
comparison of the English Law, 246m;
females generally incapable of inheriting in Bengal and Madras, unless
named by special texts, 117
so in Benares? ib.
so in Eastern and Southern India, 118
but not in Western India where the Mitakshara prevails, 118, 119
female's incapacity still recognized in Sialkot, 261tn
cannot be a Karnam (Madras), 329
females cannot become Sannyasis, 519
married females are subject to husband's guardianship, 506
failing him and his family to that of their parents and their kinsmen, ib.
what females are Gotraja Sapindas, 121
INDEX. 1167
PEMALE — continued.
a license to use ornaments not a gift of them, 186
females can succeed to a vatan, 326t
property given to for maintenance confers only a life estate, 215
their succession regarded as inheritance, 606a;
females have inchoate rights of participation which become effective when
separation takes place, 605
their rights distinguished from those of males, 607
females' share in partition, 629
their right arises on a partition either voluntary or enforced, 627c
females cannot claim partition though entitled to shares, 627
a grandmother in Bengal may sue to sever her share along with dividing
parceners', 627rf
widow of a coparcener in Bengal may sue to sever her share, 629
others are entitled to maintenance only, 689
heirs to females, 13455, 47055
unmarried females, 134
married females leaving issue, 134 — 140
no issue, 140 — 141
remote succession to females governed by same rules as to a male, 308m
descent through females in Malabar, 608/i
connexion for succession limited to a single link in same line, 466
involving several links not admitted, 460n
See Adoption ; Daughter ; Gotra ; Maintenance ; Manager ;
Mother ; Partition ; Priest ; Sister ; Stridhana ; Succes-
sion ; Widow ; Wife ; Woman
See Iheritance; Eaj; Vatan
MICTIONS
become law by adoption, 796Z
PINDEE. See Treasure Trove, 797
FIRST COUSIN. See Cousin, 125
FIRST COUSIN'S WIDOW
succeeds in competition with her daughter-in-law, 454
FORFEITURE OF RIGHTS
refusal to adopt not a ground for , 372, 814, 1068
incurred by widow remarrying, 102, 403, 406, 430, 553
not by unchastity subsequent to succession, 83, 554
subsequent insanity does not cause . 545
of inheritance by a Guru through fornication, 535
See Adoption VIII., 1069; Maintenance; Unchastity; Widow
FORMS OF ADOPTION, 960, 964
Roman , 1018h
See Adoption VI., 994, 1003—1006
1168 INDEX.
FOEMULAS
of ceremonial law, 48
sacred, 33, 43
their coercive force, 791
See Adoption IV., 922; VI., 992^5; Inheritance; Sraddha
FOENICATION,
a ground of disinheritance in case of a Guru, 534
girls encouraged by Smritis to with men of higher caste, 798r
See Forfeiture, 634
FOSTER DAUGHTER,
amongst dancers, 828t/
foster daughter's heritable right not recognized, 427
is excluded by a brother, ih.
See Adoption IV., 945p
FOSTER SON,
rights of a , 340
not recognized as an heir, 356, 362, 829
recognized by some castes, 828, 1065
may be heir by custom according to a Sastri's opinion, 828y
advantage of over adopted son, 828, 829
See Adoption VII., 1065
FRAUD,
repugnant to Hindu Law, 8, 650, 764
to be prevented, 188, 244
a cause of rescission, 591
of manager's transactions, 688s
a ground of action against a coparcener, 5705
and in suit by one, 688s
as affecting right to share in partition, 629, 630, 763
vitiates a partition, 650
and is a ground for suit, 649a, 652
co-sharer answerable for , 700c, 760
does not deprive him of his right to share, 760
compensation taken, 630
vitiates an adoption, 963
preventing adoption successful in Bengal, 651
a ground of action by a widow for maintenance against vendee, 693r
against creditors, &c., not allowed to be effected by partition, 650
See Adoption III., 890; Coparcener; Manager; Minor; Pak-
tition, 703; Purchaser
FULL-BLOOD. See Brothers; Succession
FUNERAL CEREMONIES,
all sons liable for , 686h
responsibilty for of a married female, 507n
performance or non -performance does not affect heritable right, 689
See Adoption II., 700; III., 840; VII., 1022; Kriya; Sraddhas
INDEX. 1169
FUNERAL EXPENSES,
a charge, 685, 720g, 728
See Charges on Inheritance, 686p
FURNITURE,
generally indivisible, 671
articles, if numerous, may be sold and the proceeds divided, 673
may be kept by coparceners using them, 717
GAINS OF CHANCE, OF SCIENCE, AND OF VALOUR,
when self- acquired and when joint property, 667, 668, 669
See Property, Separate and Self- Acquired
GAINS OF SCIENCE,
" science " means the particular profession, not elementary education, 669
right of acquirer to , 700
are separate property, 666ss
See Property, Separate and Self-Acquired
GAINS OF VALOUR
are separate property, ib.
GANDHARVA. See Marriage, 481, 484, 486
GHARBARI. See Gosavi, 629
GAROO. See Tribes, 274, 275, 398
GAUTAMA DHARMASUTRA, 32
GAVALI. See Caste, 385
GENEALOGIES,
preservation of by purohits (family priests), 235/i
GENTILES. See Gotrajas, 120
GENTOOS, 6
GHARJAWAHEE, 1066
GHATASPHOTA, 56, 552
See Divorce
GHATWAH TENURE, 177
GIRL See Gosavi, 530
GIFT
much discussed by Hindu lawyers, 189
law of governs wills, 740
H.L. 74
1170 INDEX.
GIFT— continued.
sale had formerly to take the form of , 191
inter vivos can confer only interests recognized by law, 183
with reserve of ownership invalid, 180, 187, 415, 959
a mere license to a woman to use ornaments on particular occasions not
a , 186, 280
of jewels under English Law, 186s
to persons unborn cannot take effect, 180, 182
reasonable from parent to be respected, 205, 738
resumable if improperly made, 1088
as a contract, 189
essentials of , ib.
transfer of possession generally necessary, 190, 216, 416
not perhaps amongst near relatives, 190, 1065
void unless completed by delivery, 180, 204, 634, 642
as against subsequent transferee, 416
of inalienable property void, 1089
cannot, according to the Mitakshara law, be made of an undivided share,
217p, 564, 565, 588, 616
except for pious purposes (see below), 616
nor of ancestral immoveable property? 447
unless attested by sons, 592k
as assenting, ih.
of whole estate subject to provision for wife, 191
limited to self -acquired property minus subsistence fund of family, 695,
1089
and sale of child forbidden by Apastamba, 792n
of girl to be expressly in marriage, 960
religious gifts in India and Europe compared, 191, 203, 204
nature of to religous uses, 20, 195, 198
moderate religious may be made by a father, 203
religious inalienable and irrevocable, 195
in Krishnarpana, 91, 190
every is accompanied under Hindu Law by a tacit condition of
recovation, 187
or defeasance, 187, 416
not cancelled under present law, 416
conditional is invalid according to Viramitrodaya, 186
so also under the Mitakshara, ih.
but not necessarily according to Narada, ih.
contingent inoperative save as a promise, 212, 181
condition precedent may invalidate a , 187, 212, 961
subsequent invalid if repugnant to law, 187
limitation to male descendants only is bad, 182
valid though donor retain life-interest, 188, 190
cannot be made subject to fantastic directions and limitations, 194, 6646
may be accompanied by a trust, 188, 200ss, 416
trust now enforced, 416
comparison of the Roman Law, 416
by coparcener. See Alienation, 385, 568
INDEX. 1171
GIFT— continued.
whether valid against coparceners, 191
religious not to be used for other purposes, 743
to child, wife, or concubine binding, 193
to one son upheld against another, 738
unequal — — to a son not generally allowed, 205, 206, 735, 738
of moderate amount to a separated son allowed, 723, 735
by father to adopted son not affected by birth of begotten son, 1078
to illegitimate son valid, 547
to a daughter, 205
valid if provision is made for widow's maintenance, 392
of affectionate kindred to wife, 86
to a wife by her husband not invalidated by joint interest of sons, 204
to wife of heritable interest, 297c
to future wife, 280
See Female
of whole property to wife (excluding sons) void, 759
See Alienation; Father
as a token of affection. See Pritidatta
at the bridal altar (or nuptial fire). See Adhyagnika
at marriage. See Yautaka
for maintenance, is a kind of stridhana, 259
by a son, 287a:
a sum of money given in lieu of maintenance is stridhana, 295
from the brother, a kind of stridhana, 259, 352, 353
is valid, if not fraudulent, 279, 281
from the father, a kind of stridhana, 257, 352, 353
gifts from kinsmen, 486w
from the mother, a kind of stridhana, 259, 352, 353
from a son, a kind of stridhana, 352, 353
in the bridal procession. See Adhyavahanika
on supersession. See Adhivedanika
subsequent. See Anvadheya
See Adoption II., 825 ; V. passim ; VI., 957, 960, 961, 989 ; VIH.,
1078; Endowment; Father; Ornaments; Present, 509;
Stridhana
GIEASIA, 421, 850
GIEASI HAKKS. See Hakks, ib.
GIRL,
not adoptable. See Adoption IV., 942
GIVER IN ADOPTION. See Adoption II. ; V., 817
GONDS. See Tribes, 270
GOOD FAITH
protects an alienee from the widow or mother as manager, 570
See Alienation; Creditor; Debts, 687; Father; Manager;
Minor; Widow
1172 INDEX.
GOSAVI,
ceremonies at initiation of Gosavis, 523
position of Gosavis in the community, 519
Sudras and women may become , 519, 83555
Gosavis are either Puri, Giri, or Bharathi, 630
Gosavis Kanphata, 527
Gosavis are not Sannyasis, 518
difference between Sannyasis and Gosavis, 519
some Gosavis engage in trade, ih.
Bharathi sect of Gosavis marry, 525
married Gosavis are eligible to mahantship, ih.
Gosavis marry in some other cases, 519, 525
Gharbari Gosavis, 529, 530
concubinage allowed by custom of Gosavis, 519
Gosavis for what actions out-casted, 623
adoptions by Gosavis, 834, 835
mode in which Gosavis get their chelas, 835
relation between and his disciple differs from true adoption, ib.
(male) heirs to a , 521, 529
natural sons of may become disciples and inherit, 626
not the offspring of an adulterous connexion, ib.
(female) heirs to a , 531
See Adoption II., 826; III., 849; VII., 1065; Ascetics; Vaieagis,
539
GOSAVINI,
= a female Gosavi, 531
See GosAvi
GOTRA,
sense of among lower castes, 935
imitation of relations by the Sudras, 922
a woman by marriage enters her husband's , 120, 121
identity or difference of as affecting adoption, 93555
See Adoption IV. , 910, 913 ; Gotraja
GOTRAJA,
according to Smriti Chandrika means sprung from the family, 121n
according to Vyav. Mayukha means born in the family, 121
GOTRAJA SAMANODAKAS, 123
See Samanodakas
GOTRAJA SAPINDAS,
who are included in the term, 107 — 122, 43555, 603
table of , 1165
enumeration of given by Vijnanesvara not exhaustive, 110, 111,
114
meaning of according to the Mitakshara, 120
Vyav. Mayukha, 121
division of , 108
Samanagotra the same as , 120
INDEX. 1173
GOTEAJA SAPINDAS— cotitinwed.
distinguished from Bhinnagotra Sapindas, 497
what females are , 121
order of , 108, 109, 435ss, 449
inherit according to their nearness to the deceased, 107
succession of , 443s5, 44
collateral succession of stops with grandson of the ascendant in
Madras, 115
in Bengal with great-grandson of the ascendant, ib.
GOVEENMENT. See Adoption III., 853, 901—902
GEAND-AUNT, PATEENAL,
entitled to maintenance, 336
GEAND-DAUGHTEE
is a Bandhu, 465
cannot inherit in an undivided family, ih.
may inherit in a divided family, ih. r
grand-daughter's succession to a female, 477
is heir to her grandmother, 139, 477
GEAND-DAUGHTEE 'S SON, 465
See Bandhu; Sapinda
GEANDCHILDEEN,
not entitled to mamtenance, 6942
entitled according to Mitakshara, ib., 1089
GEANDFATHEE
is a gotraja, 108
may separate from his descendants at any time, 611
grandson bound to pay debts of , 75, 1088
when succeeds, 108, 433, 443
See Adoption V., 949, 1081; VII., 1041; Debts; Grandson
GEANDFATHEE'S (PATEENAL) BEOTHEES
are gotrajas, 109
GEANDFATHEE'S (PATEENAL) BEOTHEE'S SONS
are gotrajas, ih.
when inherit, 449, 450
GEANDMOTHEE (PATEENAL),
cannot demand partition, 627
but may in Bengal (see Females), 627d
but on partition is entitled to a share, 712, 750r
when succeeds, 105, 433, 443
has a special place assigned to her, 105
special ground for her succession according to Smriti Chandrika, 121n
preferred to step-mother, 442
1174 INDEX.
GRAND-NEPHEW. See Adoption IV., 918
GEAND-NIECE (MATERNAL),
takes with the same power of alienation as a daughter or sister, 467
GRANDSON
entitled to maintenance? 6942;, 1089
cannot control grandfather's alienation with his father's consent, 732
grandson's right of inheritance, 64, 74, 323, 370
may separate by agreement, 611
grandson's right to partition with grandfather not directly recognized, 729,
730
it arises only after his father's death*, 610, 730
grandsons take a share equal together to their father's, 611
takes his father's place on the exclusion of the father, 815^
takes mother's share by representation when mother dies between death
of her father and actual partition, 103
not to be defrauded by grandfather's gift to a son, 737
of the maternal uncle of the mother may inherit, 467
of a sister, ib.
See Adoption II., 814, 821; III., 842, 843, 844
GRANDSON BY ADOPTION,
succession of in undivided family, 67, 603
succession of in divided family, 76, 370
GRANDSON, ILLEGITIMATE,
succession of of a Sudra, 69
legitimate son of illegitimate son takes half-share of his father among
Sudras, 77, 371
GRAND-UNCLE See Grandfather's (Paternal) Brothers
GRAND-UNCLE'S GRANDSON ie a Gotraja Sapinda, 451
GRAND-UNCLE'S GRANDSON. See Grandfather's (Paternal) Brothers
Sons
GRANT,
construed so as to be effectual, 183
the words " aulad aflad " in a how construed, 184/
to be preserved for designated purpose, 184
a village taken by to one is self-acquired property, 664, 667o
religious favoured by Hindu Law, 211/
cannot be alienated, 681/
a may be impartible, 683
by the sovereign may make an estate impartible, 180, 197
* See Mitakshara, Chap. I. Sec. V. para. 3 note; Vyavahara Mayukha
Chap. IV. Sec. II. para. 2.
INDEX. 1175
GE ANT — continued .
treated as separate property disposable by grantee, 734
a condition against alienation is generally void, 188
the extent of estate conferred by a in Bombay, 664b
tenure of to support an office, 683
not divisible to prejudice of service, 681
cannot be resumed, 196, 378
not voidable by the executive, 665
binds grantee to its terms, ih.
he cannot enclose pasture-lands appendant to village holdings, ih.
not liable to debts of holder after his death, 679
except in case of confiscation, ih.
grantee's mortgage upheld against an escheat, 665
holder of a jagir or saranjam can make a for his own life, 664b
succession to governed by its nature, 681
srotriyam is descendible to grantee's sons only, 667o
grants public devolve according to special terms prescribed, 180
distinguished from private, ih.
to a man, his children, and grandchildren confers an absolute estate, 435,
664
to united brethren constitutes a joint tenancy, 73, 654
by a father to his illegitimate son for his maintenance is valid, 360, 547
in favour of persons not in existence fails with the estates dependent on
it, 182
to mistress. See Saranjam, 698r
See Adoption VIII., 1081; Brothers; Endowment; Inam;
Interpretation ; Srotriyam
GEANTEE
adopting should obtain consent of grantor, 1061
See Adoption VII., Grant
GEEAT-GEANDFATHEE, 109, 444
may separate from his descendants at will, 609
See Adoption III., 852
GEEAT-GEANDMOTHEE, 109, 111, 443
entitled to inherit according to Mitakshara, 119
GEEAT-GEANDSON
great-grandsons through different sons are Gotraja Sapindas, 451
position of in a partition, 622
when he inherits, 60, 61, 74, 129
in the male line precedes a daughter's son, 370
of the fifth ancestor succeeds before his father's sister's son, 456
GEEAT-GEANDSON BY ADOPTION,
succession of , 67, 603
GEE AT-GE AND SON'S SON
is not entitled to any share, 622e
does not take share, 606 ♦
1176 INDEX.
GEEAT-GREAT-GEANDSON
is not entitled to any share, 622e
does not take share, 606
but succe.eds as a Gotraja Sapinda, 607
GEEEK CUSTOM,
as to exposure of infants, 209©
GEEEKS. See Adoption VI., 967
GEIHASTHA AVIBHAKTA, 66
GEIHASTHA VIBHAKTA, ih.
GUAEDIAN,
till eight years of age the mother is , 409
under Maithila law mother preferred to father as , 338
adoptive mother preferred as to adopted son, 1080
so in case of a widow, 363
natural father is not while adopted parents live, 622/
a near relative has the best right to guardianship of a minor, 380
a paternal relation preferred, 413, 624/i
guardianship of female sought by husband, she denying the marriage, 607
over a female is vested after marriage in the husband, his sons, and his
sapindas, 306, 607
nature of this guardianship, 227
husband's family being extinct, parents and their kinsmen are the guardians
of a woman, 228, 507
on failure of both the king is , ih.
a person cannot be appointed or administrator against his will, 622/
ad litem may be appointed when there is no administrator, ih.
an officer of the Court may be appointed , ih.
may demand partition for the minor, 624
sell to maintain a suit for the minor's benefit, 622/
alienation by an unauthorized , 360
See Adoption VII., 1033, 1037; VIII., 1080; Age; Female, 606;
Minor
GUDHAJA, 806
GUJAE. See Caste, 446
GUJAEAT,
peculiarities of the law in , 13
See Adoption II. , VII. ; Custom ; Father ; Mother ; Sister ;
Widow
GUEAVA,
interest of a in the temple land is alienable, 717
See Castes and Classes
INDEX. 1177
GURU,
position of ^ in a temple or matha, 520, 521
relation of and his disciple somewhat resembles adoption, 834
bound to maintain his chela in distress, 723gi
succeeds to a Vairagi by custom, 539
disciple, 469
nominates a chela as successor, 522
succession of disciples to , 520, 633
succession to limited to one disciple, 467
GURU BAHINA, 536
GURU'S FELLOW DISCIPLE, 528
GURUBHAU
is heir to a Vairagi, 539
See Fellow-Disciple
GURU-SISHYAS, 635
HAKKS, 323
are immovable property, 706a;
HALF-BLOOD. See Brother
HALF-BROTHER. See Brother
HALF-BROTHER'S SON
is a sapinda according to Vyav. May., 106
succeeds to his aunt, 511
See Adoption IV., 913
HALF-SISTER
is a gotraja sapinda, 635
may be included in " bhagini," 534
preferred to step-mother, 441
uncle's widow, ih.
doctrine of Viv. Chintamani and Vyav. Mayukha, ih.
HARITA, 37
HEIR,
meaning of under English Law and Hindu Law compared, 601
See Daya
expectant. See Reversioner, 89ss
presumptive, cannot sue for declaration of his right, 371
See Female
HEMADRI, 9
1178 ^ INDEX.
HEREDITAEY OFFICES,
now regulated by enactments, 684
how divided, 716
must not leave the family of the office holder, 684
See Vatan
HERES NECESSARIUS, 196
HERITABLE RIGHT
of the widow discussed, 84
See Birth; Inheritance; Widow
HERITAGE
rests on positive law, 8
under Hindu Law implies ownership, 425
woman's ranked as Stridhana, 134
See Daya; Heir; Inheritance; Stridhana
HINDU LAW,
operation of , Iss
application of authorized by the legislature, 1
assisted by equity, 7, 8
conflict of laws of different communities, 5
when law of defendant prevails, 5, 6, 7
its connexion with religion and ethics, 8
religious element preponderates in , 233
scope of ancient purely religious, 496
rather personal than provincial, 3
sources of of a sacred character, 9, 940
based on the Smritis, 6455
authorities on , 9
conflict between books, 14fe
criticism of necessary, 8, 9
often turned into verse, 496
custom, basis of , 1
tends to conformity with written , 9
schools of, 12 — 64
(1) Maharastra, 12
(2) Dravida, 61
(3) Benares, 62
(4) Mithila, ih.
(5) Gauriya or Bengal, 63
allows all classes of Hindus to be governed by their own customs, 559a, 788^
general superseded by particular custom, 2
modified by custom, 150
but regulates all beyond, 2
customary law of inheritance may be changed, 3
capable of development, 516a
analogy to the English law, ih.
history of , 8, 50
INDEX. 1179
HINDU Jj AW— continued.
developed under the control of religious ideas, 48, 49b
of the Sastras extends in operation with the increased complexity of
affairs, 829a
binds the Jains in the absence of special custom, 152
binds the Khojas in the absence of special custom, ih.
undoes what is done fraudulently, 8, 9
every important duty prescribed by a Smriti legally enforceable under
, 233, 235
distinction between religious and legal obligations not clearly drawn, 233
See Adoption I., 780s5 ; V., 953; VI., 959, 960, 961, 962; VII.,
1052, 1058; VIII., 1067; Apostasy, 559; Equity;
Interpretation; Smritis
HINDU LAW OFFICEE. See Law Officer
HINDU WILLS ACTS—
XXI. of 1870, 219, 1081
V. of 1881, 220
See separate List at the beginning
HINDUS, AKYAN, 957
HIEANYAKESI SUTRA, 32
HOMA SACRIFICE. See Adoption II. ; IV. ; VI.
HOUSE
built on ancestral land by coparcener with his separate funds is not
subject to partition, 710, 711
why family dwelling was considered indivisible property, 672, 717
See Residence
HOUSEHOLD GODS,
custody of, 716m
See Idol
HUSBAND,
authority of— see Adoption V., 946, 947, 948
is guardian of his wife, 306, 506
takes gifts made to his wife by strangers, 279, 281
takes his wife's earnings, 279
even those by prostitution, 483
deserting wife must maintain her to the extent of one-third of his
property, 556mj
inherits, failing children, 140, 480-483, 508 . , , ^.^
wife's Stridhana if married according to the approved forms, S09ss,
484, 494
of " Pat " wife when inherits, 482 , . ^ •
alienation by depriving his family or widow of subsistence is
invalid, 235gf, 1089
1180 INDEX.
HUSBAND— contmwed.
so as to devise, 1021s
husband's brother's succession, 494
sapindas succeed to a female, 4845S
HUSBAND AND WIFE,
not generally capable of mutual contracts, 246«?
See Marriage
HUSBAND'S BHINNAGOTEA SAPINDAS. See Sapindas
HUSBAND'S BBOTHEB. See Brother-in-Law, 492, 494
HUSBAND'S BEOTHER'S SON
inherits, 496
See Adoption IV., 914
HUSBAND'S BROTHEE'S WIDOW, 497
HUSBAND'S COUSIN, 497, 498
excludes husband's sister's son, 499, 502
excludes husband's sister and son-in-law, 498
HUSBAND'S DISTANT KINSMEN, 500
HUSBAND'S HALF-BEOTHEE
inherits, 492, 495
HUSBAND'S INJUNCTION,
a widow may adopt husband's brother's son without , 914
See Adoption I.
HUSBAND'S PATEENAL UNCLE'S GEEAT-GEANDSON, 499
HUSBAND'S PATEENAL UNCLE'S SON, 497, 499
HUSBAND'S EELATIVES,
as heirs to a woman, 4935S
extent of recognized connexion (Bengal), 605/
See Stridhana
HUSBAND'S SAPINDAS. See Sapindas of the Husband, 141
See Adoption III, ; Female ; Widow
HUSBAND'S SISTEE
preferred to distant cousins, 503
inherits as a Sapinda, 604
HUSBAND'S SISTEE-IN-LAW, 497
INDEX. 1181
HUSBAND'S SISTER'S SON, 604
is excluded by husband's cousin, 498
HUSBAND'S SISTER'S SON'S SON, 504
HUSBAND'S UNCLE'S GREAT-GRANDSON, 499
HUSBAND'S UNCLE'S SON, 497
HYPOTHECATION. See Alienation; Coparceneb; Debt; Father;
Mortgage; Widow
IDIOT,
disqualified for inheritance, 141, 541, 544
when his idiotcy is congenital, 150
not disqualified for taking by conveyance, 748
See Disqualification
IDOL,
ideal personality of recognized, 185o, 198
endowments of , 198
property dedicated to an , 160, 717
property subject to trust for partible, 681
custom as to distribution of s, 755
family s generally remain with the eldest, 716m
refusal to give up an for worship a cause of action, ib.
See Charity; Eldership; Endowment; Perpetuity; Property;
Sacred
IGNORANCE,
deprives acquiescence or consent of usual effect, 1076
inducing mistake in partition a ground for suit, 649a
IGNORANTIA LEGIS NON EXCUSAT,
discussed, 107555
ILLATAM, 398/1, 399
See Son-in-Law
ILLEGAL DIRECTIONS AND TERMS (Void).
See Adoption III. , VI. , VII. ; G rant ; Partition ; Will
ILLEGITIMACY
is a disqualification to inherit among higher castes, but not among
Sudras, 61, 69, 76, 129
See Illegitimate Son
ILLEGITIMATE BRAHMANA
takes only what his father gives to him, 444
ILLEGITIMATE BROTHERS. See Brothers
1182 INDEX.
ILLEGITIMATE CHILDBEN, 546, 547
ILLEGITIMATE DAUGHTEE. See Daughter, Illegitimate
ILLEGITIMATE GKANDSON. See Grandson, Illegitimate
ILLEGITIMATE GREAT-GEANDSON,
succession of of a Sudra, 69
ILLEGITIMATE SON,
sons of a European not a joint family, 4
of higher castes cannot claim inheritance, 149, 547
son superseded by adopted son, 1045
excluded from succession to a raj, 153
excluded from succession under Lombard law, 77n, 3615
once favoured by English law, 369n
of higher castes can claim maintenance only, 77, 193, 254, 369, 547
of higher castes can claim maintenance, but not as a charge on the
property, 256
of a brother awarded maintenance, 646r
in higher castes a father may make a grant to , 256, 360, 547
irrevocable by after-born legitimate son, 547
Of Sudras
inherits, 69, 76, 77, 369, 392, 421
inherits collaterally by custom, 78
position of when recognized by his father, 78, 392
supposed to take equally with legitimates, 364
this question-ed, ih.
inherits half a share if legitimates living, 76, 362
takes precedence of legitimate son's daughter, 361
assigned equal share with daughter, 472
takes the whole estate on failure of daughter's sons, 69, 362
a Sudra 's right to disinherit limited, 366
illegitimate sons joint inter se, 364, 603
illegitimate sons may form a united family with legitimate half -brothers,
79, 364
son is entitled to half a share on partition, 712
to a full share at his father's choice, 362, 708
but not greater than a legitimate son's share, 862
See Son
IMAGE. See Idol
IMITATION
of higher by lower castes, 402
of nature— see Adoption III. , 845 ; IV. , 920
IMMORALITY
of debt of father as affecting son's liability, 577ss, 595
son required to prove , 580, 596Z
INDEX. 1183
IMPARTIBILITY
not identical with inalienability, 154
principle excluding division on death applies to division by alienation,
164, 378
no ground for succession as to separate estate, 680
See Alienation, 681/
IMPARTIBLE PROPERTY. See Property, Impartible
IMPEDIMENTS TO SUCCESSION. See Disqualification
IMPLEMENTS. See Tools and Implements
IMPOTENCE,
disqualifies for inheritance, 141, 541, 544, 551
as affecting capacity to adopt — see Adoption III., 848; Disqualification,
541
IMPROVIDENCE, *
of father, 581
See Debt, 191, 656; Interdiction
IN EXTREMIS. See Adoption III., 847, 848
INALIENABILITY. See Alienation; Estate; Impartibility ; Ownership
IN AM, 180
ranks generally as ordinary ancestral property, 377
is self -acquired property of individual grantee, 664, 666/, 667o
resumed and rebestowed held separate property, 6661
is generally partible, 377, 754
re-imposition of land-tax does not change estate, 666Z
held subject to ordinary rules of succession, 765
inheritance and partition of an determined by the grant, 6772;
settlement of on wife to exclusion of son? 734
See Escheat; Grant, 734; Interpretation
INAMDAR
may have different rights under the same grant, 377
subject to rights previously created, 378
Inamdar's relation to tenants, 377
INCEST,
became levolting in Vedic times, 2701
child by has no right of inheritance, 546r
theoretical a bar to adoption, 920
See Adoption IV., 922
INCONTINENCE
annuls right to maintenance except of the wife and the mother, 656, 666
a ground of disinheritance in case of a widow, 553, 554
1184 INDEX.
INCONTINENCE— contintted.
but not for retraction, 554
of widow not a cause of forfeiture in Bengal, 249
effect of on the succession of mother, 554
of daughter, ih.
comparison of the English law, 554/
See Family; Unchastity, 554
INCONVENIENCE
of division in specie at partition considered, 626, 756, 767
INCEEASE
of share effected by death of coparcener during pendency of suit for
partition, 633
before partition, 633^
after partition, 632, 649a ,
INCUMBEANCE. See Alienation, 162; Debt; Estate; Father; Mobtgagb;
Trust, 188; Trustee, 521
INCUEABLE DISEASE
is a disqualification to inherit, 149, 541
persons afflicted with must be maintained, 643
INDIGENCE
revives the claims of father and son to subsistence after partition, 723
of family to be guarded against in alienation, 1089
See Alienation; Maintenance, 723
INDIVISIBLE PEOPEETY. See Property, Indivisible
INFANTS,
exposure of in Greece and Eome, 2095
See Age; Guardian; Minor
INFIEMITY
in body or mind disqualifies a person to inherit, 141, 142
INHEEITANCE,
definition of , 61
customary law of may be changed, 3
law of not affected by emigration, ib.
determined by the law of the defendant, 5
as a source of property, 67
above individual will, 56, 178, 179
course of devolution not alterable by private agreement, 178
direction of a line of descent unknown to the law, inoperative, ib,
once regarded as impartible and inalienable, 261
and partition as viewed by Hindu lawyers, 561
distinguished from partition, 57
INDEX. 1185
INHERITANCE— conftnued.
historical development of the law of , ih.
special rules of , 150ss
in tail male not known to Hindu law, 58
law of in what sense riegulated by funeral oblations, 59
heir takes estate as a " universitas," 162
under Hindu law heir continues the person and family with which he
has been identified, 56, 62y
under the Roman law, ib.
accordmg to Vyav. May. is an inseparable aggregate of rights and
obligations, 162, 164o
the rules of under Mitakshara come into operation only as to separate
estate, 429
not postponed by pregnancy, 902
right to not extinguished by separation, 340
sub-divisions of the law of , 56, 57
obstructed and unobstructed, 60, 561, 656
right of succession arises as in partition on the death of propositus, 64
coparceners of the deceased; when they inherit, 70
no property of male to pass from family while a member survives, 487
by females. See Custom ; Daughter ; Mother ; Sister ; Stridhana ;
Widow
collateral. See Adoption II., 838; VII.
disqualifications for enumerated, 541, 548, 549, 551
See Disqualification
son previously adopted by one becoming disqualified to be provided for, 1056
in cases of inalienability, 297
to Bhagdari and Narvadari lands governed by Hindu law and custom, 686
in Gujarat males preferred to females, 407
burdens on , 160ss
through females, 608h
See Female Gentileship
debts not prodigally contracted, 192
to Females
sister preferred to husband's sister, 312
son by first husband preferred to second husband's family, 312, 313
Mitakshara to be harmonised in the island of Bombay, 13
to Ascetics. See Ascetic; Preceptor
See Adoption III., 840, 845, 848, 887, 902; VI., 963, 979;
VII., 1023, 1050, 1062; Brahmachari; Brother; Descent;
Devolution; Emigration, 3; Naishthika ; Succession
I
INITIATION, 830t
of a Jangama, 532
in relation to adoption, lOlOz, 1060w>
to be provided for out of joint property, 691t, 747
See Marriage, 940
INSANE, INSANITY,
does not necessarily prevent marriage, 817
of the son born with respect to adoption, ih.
H.I,. ''«
1186 INDEX.
INSANE, mSANlTY— continued.
disqualifies for inheriting, 141, 641, 544, 545
and for share in partition, 626
but does not cause forfeiture, 545
See Adoption III., 844, 846, 847, 856; V., 953; Disqualification,
541, 545
INSENSIBLE. See Adoption III., 846, 847
INSTRUMENTS
executed under disturbing influences void by Hindu law, 595, 597
See Adoption; Deed, 630; Documents, 1007; Grant; Inter-
pretation; Registration; Will
INTELLIGENCE. See Adoption III., 846, 847
INTENTION,
unequivocal, of partition constitutes partition, 765, 776
INTERDICTION
son's right of against waste, 193a, 594, 65&w, 737
by adopted son, 1030
by coparcener against sale by another allowed in Madras? 652m;
INTEREST,
compound not disapproved by Hindu law, 685e
utmost recoverable = the principal (damdupat), ib.
rule of damdupat applies to some mortgages, 718©
when the defendant is a Hindu, 718
may be turned into principal by a new account, 685e
vested. See Adoption III., 898
INTERPRETATION ,
principles of , 6, 13, 257k, 707
to be consistent with texts, 16p
of texts, 197 d
governed by custom, 787
every text must be given .effect to if possible, 116
when different objects are included in a class by different Smritis the
class is to embrace all, 260t
of texts influenced by philosophical systems, 8, 116, 257k
rules of , 16p, 184
etymological preferred to technical, 137
equitable approved, 766
according to the reason of the law, 702
" Dikpradarsana " or extension of a rule to analogous cases, 100, 505, 785
strained analogies to be avoided, 197d
contradictions in Hindu law books, how settled, 14fe
discrepancies in sacred writings must be reconciled, 781i, 759gf
inference by reasoning to be preferred to the assumption of a plurality of
revelations, 781t
INDEX. 1187
INTERPRETATION— contmued.
of a special rule when a general one exists, 759gf
Smritis are construed by reference to the one taken as a subject of
commentary, 260*
where a particular purpose is assigned as a ground for a permission this
implies a prohibition where the purpose is already attained, 815c
of Mitakshara, 19
meaning of half-a-share, 69
rules of hy the Courts, 788
governed by decisions, 789
to be drawn from within the Hindu law, 197d
of private documents, 435
actual notions of Hindus to be adverted to, 620
according to the situation of the parties, 713a;
extensive of document showing family custom of succession, 682
words indicating males may include females, 620
repugnant provisions void, 696
and those imposing restrictions disapproved by the law, ih.
See Agreement; Partition; Property
instruments are construed so as to express something legal according to
Hindu law, 183, 184
of a deed allotting money, &c., to a widow according to situation of
parties, 713a;
of gift by husband to wife, 185, 287 w, 297c, 305g, 984
of gift to sister with words of limitation, 184
of grant to a widow and other heirs, 285g
of the words " aulad aflad," 184/
of wills and testamentary instruments, 183, 184, 219, 222, 223, 618a;
will construed as a family settlement, 184
of " putra paotradi krame," 224, 620
of " mrityu patras," 217
See Custom, Family, 690; Equity; Grant, 184f, 435, 664;
Hindu Law; Smriti; Text; Will
INTERPRETERS,
of ceremonial law, 48
INVESTITURE,
age of, 940z
rites of , 942p
See Adoption III., 810n; IV., 921 ; VI. 992, 997, 998
INVESTMENT,
to be made to secure maintenance of widow, 697
of concubine, 698r
INVOCATION. See Adoption IV., 910; VI., 957
IRISH LAW, ANCIENT,
as to property retained undivided in partition, 671d
1188 INDEX.
IZAFATDAE,
not a proprietor, 664b
JAGIR, 175, 180
jagirs are grants of tlie revenues, 175
are impartible, ih., 68Bz
holder of can make a grant for his own life, 664b
resumable at pleasure of the sovereign, 175
an exception to the rule of devolution, 180
devolves according to the character of the grant, 6772!
succession to a by primogeniture, 683z
See Saeanjam, 683
JAINS,
divided into Yatis, devotees, and Sravakas, 633
deny the authority of Vedas, ib.
are Pashandas, ib.
have no kriya ceremonies, 932fe
sraddha or paksha ceremonies, 812h
are subject to Hindu law of inheritance m the absence of special custom,
152, 827
See Adoption III., 850, 869; IV., 925
JALA SANKALPA, 989, 995
JANGAMA,
Jangamas are Lingayat priests, 532
are married in some mathas, 533
heirs to a , 532
the head appoints his successor, 533
JANGAMA-DIKSHA, 532
JATAKARMA
= birth ceremony, 9S6ss
JATI,
heirs to , 533
See Yati
JATS. See Tribes, 270/, 394, 400^
JEWELS,
possession of does not affect widow's right to maintenance, 692m
See Ornaments; Partition, 204, 294m
JNATI. See Adoption III., 898
JOGTIN, 494
INDEX. 1189
JOINDER,
all interested in pressing a claim must be joined in a suit, 567gf
and in a demand, ib.
comparison of English law, 570s
JOINT FAMILY. See Family
JOINT LESSORS
must jointly re-enter, 567gf
JOINT OBLIGATIONS
are indivisible, 672
JOINT TENANCY (English),
difference between and Hindu joint estate, 562^
See Brethren ; Coparceners
JOINT-TENANT
severs by sale, 651/i
See Tenant, Joint, 621a
JOSHI VAT AN. See Vatan, 556
JOSHI VATANDAR,
may recover damages from an intruder, 377
presumed to be entitled to officiate in a particular family, 378
may be compelled to perform his duties, ib.
JUDGMENT,
on a contested adoption not in rem, 1082
not evidence where parties are different, ib.
See Adoption VIII. 1082; Res Judicata
JUDGMENT-CREDITOR
of coparcener can demand partition, 565, 609, 615
See Brother; Coparcener; Creditor
JURISDICTION, 233, 234
of the Courts is recognized over any question that the caste cannot
settle, 899a
See Adoption VIII., 1067; Hindu Law; Obligation, 813
KABIR, 637
KALAVANTIN. See Adoption II., 834k; III., 907; IV., 946
KALIYUG. See Adoption V., 956
KAMALAKARA,
author of the Nirnayasindhu, 23
in what estimation his writings are held, ib.
1190 INDEX.
KAMALAKAEA — continued.
his parentage, ih.
his writings and date, 24
KANAM MOETGAGE, 272«j
KANAEA,
mortgage in , 672fc
assent of the village community formerly taken to a grant in , 672fc
KANGEA DISTEICT. See Tribes, 368
extra share of eldest son in , 733gf
KANINA, 805
KANOJI CASTE, 330
KANPHATA GOSAVI, 527
KAENAVAM. See Manager, 569p
KAETA,
position of , 701
alienation by on whom binding, 592fc
See Manager
KAETA PUTEA
= Kritrima son, 956
See Adoption V. , 956 ; Kritrima
KASINATHA,
author of the Dharmasindhu, 25
KATHIS. See Tribes, 269t
KATYAYANA, 950
Smriti of , 44
KEPT WOMAN. See Concubine, 365
KHALSAT LAND, 764
KHANDOBA, 489p
KHASIAS. See Tribes, 274/, 276w, 398
KHOJAS,
governed by the Hindu law of inheritance unless special custom proved,
152, 153, 559a
INDEX. 1191
KHOLLS. See Tribes, 269t, 270n
KHONDS. See Tribes, 358
KHOT,
managing, limit of his powers, 571
KHOTI ESTATE,
normal condition of, 641
usually enjoyed in parts without partition, ih.
does not imply ownership of village lands, 664b
KINDEED. See Kinsmen; Female-Gentleship
KING,
the ultimate guardian of infants, 506
when inherits as ultimus heres, 125, 129, 359, 390, 532, 646
must show failure of heirs, 129, 507
must support females and pay funeral charges, 359, 507
See Escheat
KINSMEN,
kinsmen's gifts to a woman, 486m
consent of validating alienation by a widow, 90
assent of necessary to adoption by a widow, 8275, 871, 896
remote postponed to sisters, 430, 436
See Adoption III., 852, 870, 881, 895^5
KOCHES. See Tribes, 269i, 398; Female-Gentileship
KOLAMBI CASTE, 375a;
KOSHA OEDEAL
not resorted to at the present day, 703
KEISHNAEPANA,
gift in , 91, 285n, 327
by mother without consent of son invalid, 1036
KEITA
= the son bought, 806, 807 w, 1064
adoption now disallowed, 807, 961
See Adoption VI., 1008, 1046
KEITEIMA
= orphan taken with his own consent, 806
son = karta putra, 956
still recognized in Maithila, 806
See Adoption III., 907; IV., 945; VI., 990, 1008, lOlld; VII.,
1062; Karta -Putra; Son, 805
1192 INDEX.
KEIYA. See Jains, 932A;; Funeral Ceremony
all sons liable for father's , 686/1
KSHATEIYAS,
a division of Hindus, 61
said to have disappeared, 825i
Gandharva form of marriage lawful for , 481
may become Sannyasis, 518
See Adoption IV., 934; VI., 1002a;
KSHETRAJA
= son begotten by an appointed kinsman, 691d, 805
placed by Yajn. next to appointed daughter's son, 396
still recognized by custom in Orissa, 516a, 786
See Son, 893
KULACHAKA
= family custom, 151o, 699
operation of , 153, 679
See Custom, Family
KULADHAEMA
= worship of the tutelary deity, 778a;
KULKAENI. See Vatan, 336, 413, 456, 477
KUNABI CASTE, 338, 342, 393, 403, 471, 483, 498, 530, 767
LABHA, 259, 279
LAGNA WIFE. See Wife
LAKSHMIDEVI. See Balambhattatika
LAMENESS
disqualifies for inheritance, 141, 541
taking on partition, 747
gives a title to maintenance, 643
LAND,
property in and modes of holding it discussed, 169ss, 672ss
LANDLOED AND TENANT,
relation of not altered by omission to take rent, 1083
occupier and superior not always in this relation, 643, 644
LAPSE. See Grant; Forfeiture, 83, 102, 404, 406, 430, 535, 542, 545,
553, 554
LAUGAKSHI SMEITI. 45
INDEX. 1193
LrAVAJIMA OR LAJIMA ALLOWANCE, 323
LAW,
power of Mohammedans to convey not measured by Hindu law, 6
applicable dependent on personal status, 4
the Greeks and the Romans regarded their s as of divine origin, 496
See Hindu Law
LAW, CEREMONIAL, ib.
LAW, CUSTOMARY. See Adoption I., 792; IV., 944; Custom
LAW OF DEFENDANT, 7
LAW, ETHICAL, 496
LAW, FAMILY,
annexes defined duties to fixed relations, 9736
does not leave them to free volition, 976
basis of right to support. See Maintenance
See Custom, Family
LAW, HINDU. See Hindu Law
LAW, MOSAIC, 49a
See Mosaic Law
LAW, MUNICIPAL,
its source in the religious law, ib.
LAW, ROMAN. See Adoption V., 955v ; VII., 1052o, 1058c; Roman Law
LAW, SOCIAL, 49a
LAW-OFFICERS,
importance of their opinions, 2, 3, 785
their testimony with respect to the authorities of the Hindu law, 13
See Pandits ; Sastris
LEGALITY OF PARTITION, 760—767
See Partition
LEPROSY,
disqualifies for performance of religious acts, 950
for inheriting, 149, 526, 544
for partition, 629
See Adoption III., 847, 891; V. 950; Disqualification
LESSEE,
rights of under a member holding in severalty, 711
from the manager not discharged by receipt from another member, 669
See Tenant
1194 INDEX.
LEVIEATE,
once general in India, 394
but now forbidden, 395
sprang from polyandry, 396
reason of its prevalence, 792
still practised by some Brahmanas, 396t)
in the North of India, 399
and amongst some of the lower castes and in Orissa, 807
Thiyens, 3972
in Spiti, ih.
in Eohtak, ih.
gradual disappearance of , 794
traces of the former prevalence of , 795
amongst the Jews, 397
LEX LOCI,
want of replaced in cases of succession by that of the person, 4
LEX VOCONIA, 4356
LIABILITY— lES
on inheritance how distributed, 684, 721
distribution of debts in partition, 718
includes common debts, 684
provision for the maintenance of relations of a deceased coparcener,
721, 685
liabilities distributable on partition, 684, 698
liability in partition for assets does not arise till they are realized, 699t
of ancestral property for debts not affected by birth of a son, 166
of impartible zamindari for payment of father's debts, 16Sy
so as to an hereditary poUiam, 166
of the heir under a decree against the last holder, 163
for contribution, 718a;
See Partition, 721
LIFE-INTEREST. See Adoption VI., 981; VII., 1020; Eemale; Stridhana;
Widow
LIMITATION,
under Hindu law, 640d, 645
comparison of Roman Law, 6442!
an executor may pay a barred debt, 572^
a representative not bound to plead whenever he can do so, 572
barred debts may be set off against claims on an estate, 5721, 689
does not operate on a part reserved in partition, 648
effect of on the right to claim partition, 644, 650d
to suit for partition under Act XIV. of 1859, 642
under Act IX. of 1871, 631t, 650d
under Act XV. of 1877, 636n, 6, 642i, 644, 650d
under Act IX. of 1908, 645, 972, 1073
INDEX. 1195
LIMITATION— continwed.
in case of partition account limited to three years before suit, 699©
exclusive enjoyment for 12 years bars a suit, 642
period of attachment by Government excluded, 642r
where property is not available for partition does not operate except
through exclusive possession subsequently, 648
in case of maintenance, time computed from refusal, 698
as to Malikana and Hakks, 706
in cases of adoption, 672, 1084
a suit barred as to some necessary parties is barred as to all, 573
though instituted by others within time, ih.
See Adoption VIII., 1084, 1085; Possession, 644^
LIMITATION ACTS,
The Indian XV. of 1859, IX. of 1871, XV. of 1877, IX. of 1908, see
separate List
LIMITATIONS OF PROPEETY, 169ss
repugnant disallowed, 182
See Property
LINGAYATS, 342, 394, 477
transformed to Vaisyas, 1002cc
may adopt sister's or daughter's son, 917, 924
See Adoption III., 8501; IV., 916, 927, 932; Jangamas, 532
LIS PENDENS, 635fe
LITIGATION,
application of Hindu law to , 1
between Hindus and others in the Supreme Court governed by Stat. XXL
Geo. III. c. 70, 5
LIVING APART,
a sign of separation, 603ss, 636, 637
LOCUS PCENITENTI.E,
in adoption, 960 *
LOMBARD LAW,
compared with Hindu law, 77n, 361
LOSS OF CASTE,
disqualifies for inheriting, 149, 541, 544, 551
for partition, 629
See Disqualification ; Exclusion ; Outcast
LUNACY. See Adoption III., 844, 851, 890, 891; Disqualification
Insanity, 194, 544ss
1190 INDEX.
MADNESS,
disqualij&es for inheritance, 141, 541
See Disqualification, 541; Insane
MAGNA CHART A,
provision in favour of infant heir as to debts, 578a
preference of dower to debts, 685/
MAHANT, 519
cannot say who shall succeed his own successor, 179r
there cannot be two existing s, 524
MAHANTSHIP,
succession to , 521w
not disposable by way of reversion, 521w, 524
obtained sometimes by wandering chelas, 5375
See Gosavis, 525; Ascetic; Manager
MAHAR CASTE, 339, 353, 416
MOHAMMEDAN RULE
effect of on Hindu law, 196
MAIDEN. See Adoption III., 854, 855
succession to her stridhana, 470, 471
See Marriage; Sister; Stridhana
MAINTENANCE,
the obligation rests according to Hindu law on relationship, 231, 241
not on contract, 402p
but spririgs from jural relations of the parties, 237, 254, 402p
originally contemplated only as subsistence in the family (see below), 231,
248
not dependent on ancestral estate, 237, 238, 243
a different view held by the Smriti Chandrika, 242
modified only by property, 232, 237, 247
the right to is not strictly an interest in the estate, 246, 250, 251, 693
or a charge on it? 244, 245, 254
duty of annexed to the estate wrongly taken, 242, 243o,
the right to cannot be attached, 251, 287 x
nor assigned, or released, or defeated, 191, 246, 250, 254, 287ic
of family must be provided for, 215, 240, 242, 244, 1089
discussion as to mode, 215
head of family bound to afford to the members, 225, 229, 237, 243,
244, 255, 603, 694^
where primogeniture prevails junior members entitled to — — , 65, 66, 254.
See Appanage
of wife by husband, 225, 55Sss
claim of mother or wife to not extinguished by allotment to her of
a share, 723
INDEX. 1197
MAINTENANCE— conttnued.
a wife deserting her husband not entitled to separate , 401, 554, 565
divorced woman not entitled to , 554, 656«
of dependants not to be evaded by disposal of property, 244, 245, 254, 694
of family to be provided for before alienation, 601a;, 1089
gift of whole estate is subject to , 191, 254, 373
wife not to be deprived of by husband's alienation, 254, 372
nor by his devise, 242, 244, 254, 1021s
children, grandchildren, widow and concubine entitled to against terms
of a will, 193
purchaser with notice of widow's right to bound, 75
right and duty co-extensive with (united) family, 239 — 241
including widow and daughters of pre-deceased son, 239, 240, 242, 690,
693r, 696
ruled contra in N, W. Provinces, 243
of son's widow a claim arising from family relation, 240, 242, 694t
widow of adopted son entitled to , 1063
Bombay law discussed, 694t
one member of a joint family not entitled to at the hands of others, 603
his right to arises through disability to inherit, 603, 689s5
necessary exceeding the share of the person to be made up by relatives,
644
persons excluded from inheritance and partition entitled to , 241, 54355,
629
adopted son of one who becomes disqualified entitled to if not to a
share, 1056
of a widow, 163, 712wj
widow entitled to — from her husband's family, 64, 75, 191, 227, 228, 250
606m)
but not if living apart without sufficient cause, 225, 237, 255, 555f, 694
of a widow preferred by Sastris to other claims, 685/
but not by the Courts, ih.
comparison of English law, ih.
widow's right to is a personal right, 250, 287
it is a mere inchoate right, 191
usually provided for by allotment, 694
sum may be invested to produce , 75
a sum given to a widow in lieu of is at her disposal, 295
widow's right to taken away by partition, 230, 689
how satisfied, 247, 697
not impaired by her withdrawal from the family, 252, 694
not to be reduced on account of vexatious defence, 697i
cannot be attached or sold in execution, 251, 287x, 697
arrears of widow's may be awarded, 253, 697
proper amount of of widow, 254
may be awarded for the future, ih., 693r
is subject to variation if necessary, ih., 257, 692
decree for of widow may be made a charge, ih., 545
separate to widow when allowed, 248, 252, 693
widow's right to not subject to an agreement with her husband, 75, 191
1198 INDEX.
MAINTENANCE— cowfinued.
may be awarded in a suit for a share, 256
unchaste widow not entitled to , 655
allowance assigned for of widow resumable in case of unchastity, ih.
concubine is entitled to , 75, 164, 193, 392, 556, 606m;, 690
but not out of a saranjam, 698r
woman marrying without divorce and without first husband's consent
entitled to as concubine, 556
son entitled to where father holds impartible property, 603
adult son entitled to only in extreme want, 255, 1089
illegitimate children entitled to , 75, 255
of higher castes entitled to , 77
daughter entitled to , 64
withdrawing without cause not entitled to , 656
parents and children mutually entitled to , 255, 803
of father to be first provided for, 603
of step-mothers, 229
of sister incumbent on brother, 238
till her marriage, 412
right to of children of deceased relatives in Punjab, 694£
right to of relatives disqualified and females, 689, 690
of wives and widows of the former, 690
of eunuchs, 690tt
of lunatics, &c., ib.
limitation for a claim to , 262
time computed from demand and refusal of , 698
See Adoption VII., 1026, 1027, 1028, 1033, 1038, 1058; Aliena-
tion ; Assignment ; Family ; Widow ; Wife, 193
MAJORITY,
general age of now eighteen, 76i
See Adoption III. 846, 859x; VI., 976; Age.
MALE,
males have alone full coparcenery rights, 605
male offspring a restraint on alienation, 740/i
male's rights arise immediately on birth, 607
or adoption, IOIO55
succession" to s, 6655
MALI CASTE, 360, 361, 493
MALRI CASTE. 636
MANBHAU, 531, 536
MANBHAVINI, 636
MANAGER,
joint family usually represented in external transactions by a managing
member, 568
INDEX. 1199
MANAGER— cowfinMed. •
right of rests on the consent of the members, 568, 701
father is naturally the of a joint family, 568, 593
during his life and capacity for affairs, ib.
afterwards the eldest member qualified, ib.
elder brother may take the management unless others dissent, ib.
widow for an infant, 570
See Minor.
position of a , 568, 701
power of a , 169
may discharge the religious obligation of the family out of its estate, 572
can bind the estate and family by transactions for the benefit of the family,
668, 574, 590, 692fe
or with assent, 591, 688
or for what the creditor reasonably thinks to be for its benefit, 606
may deal with the capital of family firm, 592/c
may enter into partnership with a stranger, 571
may carry on family business for its benefit, 691
may mortgage common property for common benefit, 590
may incumber or sell for necessities, 570, 687
can pledge property for the ordinary purposes of ancestral trade, 571
his gains and losses fall on joint estate, 703/
authority of to acknowledge a debt, 94, 571
not at liberty to pay out of the estate father's debts barred by limitation?
571
nor can he revive a claim against family barred by limitation?, ib., 572
presumption in favour of his transactions, 592
especially in case of a father, 693
general liability of members for his acts (Bombay), 574, 591, 6885
transactions with a member only supposed to be a manager acting for the
common interest upheld, 570, 691
transactions of bind one who consciously takes the benefit, 668, 675,
592A;
lessee from not discharged by a receipt for rent passed to him by
another member, 569
authority of to be liberally construed, 168, 173, 590
limitations on the authority of a , 570s.<?, 590
in Bombay, 593
a managing Khot has not authority to give up important rights vested in
the members generally, 671
manager's act obviously prejudicial invalid, 693
fraudulent contracts by — - rescindible, 572, 591
alienee from bound to reasonable care and inquiry, 591, 688s
of minor's estate, 674, 590o
bound to guard interests of infants, 579a, 591
not a trustee? 701
powers of widow and mother as , 570, 571, 572
payment to mother as held to bind the son, ib., 576
manager's liability to account limited, 692fe, 699t
bis liability for assets does not arise before realization, 699t
1200 INDEX.
MAN AGBBr— continued.
cannot claim for disbursements in excess of his proper share, 592fe
in suits represents the whole family, 573, 591, 688s
in suits exceptionally another member perhaps may represent the whole
family, 591
to bind minor co-sharer in a suit must, it seems, have a certificate of
administration*, 625, 701e
decree and sale against alone affects only his own share, 574, 583o,
691, 651, 652
deceased 's interest not assets for satisfaction of a decree against him,
685
Karnavam (or manager) of a Malabar Tarwad, 669p
certificate to collect debts refused to him if a debtor of the deceased, ib.
of an endowment cannot impose rules on his successor, 199
See Administrator ; Coparcener ; Family ; Joint ; Father ;
Mother; Widow.
MANASAPUTEA, 8296
MANAVA DHARMASASTEA, 29, 36
MANES OF ANCESTOES, 957, 958
MANNEE AND LEGALITY OF PAETITION, 754—770
MANTEAS, 33, 43r, 791c
MANU. See Separate List of the Hindu Authorities.
MANU SMEITI, 32
its age, 42
MAEATHA CASTE, 480, 493
MAEEIAGE,
is a Samskara strongly enjoined, 790y
of a girl a duty of the father, 747
age of , 790y
is the only sacrament for a man of the servile class, 942p
the prevailing idea of , 403©
governed by customary law, 84
mere apostasy does not free from the Hindu law of ? 226, 559a
is the origin of special rights and duties, 403
not susceptible of a condition of nullity, 1876
not prevented by insanity, 817
of Hindu children is a contract made by their parents, ih.
* Administrator as next friend or guardian. On this subject see Murlidhar
and Vasudev v. Supdu and Balkrishna, I. L. E. 3 Bom. 149; and Jadow Mulji
V. Chhagan Raichand, I. L. E. 5 Bom. 306.
INDEX. 1201
MABiRl AGE— continued.
between persons of different castes possible only by caste laws, 403t
unequal possible according to Viramitrodaya, 77n
jus connubii between many pairs of castes, 403t
laxity of amongst Sudras, 401?
its ill effects the same as amongst the Eomans, ih
contract (purchase) in China, 266io
of Sudras remote from Brahmanical conception, 401
looked upon as licensed concubinage, 81
treated with contempt, 922
and easily dissolved, 400, 922
not governed by Smriti law, 401
relations amongst the wild tribes and low castes discussed, 357ss
in some tribes not attended with change of family, 272
Boman matrimonium sine conventione, 272©
prohibited degrees of on father's side to 7th, on mother's to 5th, 469i
with maternal uncle's daughter allowed by custom in the Dekhan, &c., 786,
801
with sister's daughter common in the South, 919
out of the tribe entails expulsion in Punjab, 399Z
gift and acceptance necessary to , 960
higher forms of formerly not allowed to Sudras, 80
Asura makes the wife only a dasi or concubine, 81
per verba de prcesenti compared with the Gandharva, 266w
forms of as affecting succession, 503, 605
Arsha, 265, 481, 484, 486
Asura, 266, 268, 269, 273, 274, 481, 484, 486, 494, 503
Brahma, 481, 484, 486, 494
Daiva, ib. *
Gandharva, ib.
Kshatra, 269/i
Paisacha, 484
Prajapatya, 481, 484, 486
Eakshasa, 269, ib.
Svayamvara, 271
customs, 268, 269, 272
is the fullest initiation, 940
initiates wife in husband's family, 85, 120, 225
wife's legal existence is absorbed in husband's, 86
effect of by approved rites on the woman, 140
by property acquired by wife becomes her husband's, 85
exceptions — see Strtdhana
effect of on wife's property in Germany and England, 284/
ceremony cannot be dissolved by contract, 402
effect of between relatives or persons of different castes, 19Qy
effect of omission to recite the mantras properly on , ib.
possibility of legal between the adopter and the mother of the adopted
necessary, 921
See Adoption IV., 941, 942, 943; VH., 1025, 1043; Degrees
Prohibited; Earnings; Expenditure, 691i, 713; Husband;
1202 INDEX.
MAB.BlkGrE— continued.
Maintenance; Eemarriage; Eights, Conjugal; Wife;
Widow
MAREIAGE EXPENSES. See Partition, 713
of brothers and sisters to be provided for in partition, 713, 714,, 747
the Smriti Chandrika imposes the charge independently of estate, 714a
MAEEIAGE POETION,
provision for on partition, 685, 689
daughters of deceased coparceners entitled to , 470g, 690, 691
share given to a sister in a partition is only a , 288
MAEEIAGE SETTLEMENT, 372
of land on daughter in the Punjab, 271q
trousseau in the S. M. Country, 277o
See Marriage Portion; Palla
MAEEIED FEMALES,
having issue. See Females
without issue. See Females
MAEWADI CASTE, 358, 428, 434
MATEENAL AUNT. See Aunt, Maternal
MATEENAL AUNT'S SON. See Aunt's (Maternal) Son
MATEENAL UNCLE. See Uncle, Maternal
MATEENAL UNCLE'S SON, 192, 457, 462
heir to married female, 512, 513
MATHA,
origin of s discussed, 523
custom regulates matters concerning s, 517, 523
should pass to disciple nominated by Guru, 522
MEMONS (CUTCHI),
governed by the Mahomedan law, 4, 5, 597a
but as to inheritance generally by Hindu law, ib.
MENTAL INCAPACITY. See Father, 193a, 203; Idiot; Insane
MEECHANT,
succession to a , 125, 126, 128, 129
MINOE, MINOEITY
now ceases at 18 years by Act IX. of 1875, 622/
not answerable for father's debts during minority, 719e
INDEX. 1203
MINOR, MINORITY— contmued.
uninitiated may perform funeral rites, 1088
but not otherwise recite Vedic formulas (Manu II. 172), ih.
See Age.
position of a in partition analogous to that of absentee, 623
minor's rights in partition, 6225s
his assent to a partition is not necessary, 623
guardian of a cannot enforce partition against the will of the adult
coparceners, 624, 741
except to prevent jeopardy to the minor's interests, 624
represented by guardian in partition, 622
bound by such partition, 741
minor's interests to be respected by manager and those dealing with him,
691
interests of to be protected by the sovereign, 623
the Minors Act for Bombay is Act XX. of 1864, 622/
See too Act IX. of 1861
this not superseded by the provisions of the Civil Procedure Code, ib.
whether property of a in an undivided family is subject to the provisions
of the Minors Act (XX. of 1864), ih., 624
not generally subject to separate administration, any one may come forward
as a next friend to a *, 624/i
a relative to be preferred, ih.
administrators of 's estate, 622/
bound by guardian's beneficial transactions, 622/
and by a suit brought by or against a legally representative member of
joint family!, 691
remedy of a against manager, 702
unfairly used in a partition may repudiate it on attaing majority, 625
See Family; Father; Guardian; Manager; Representation,
653y
MIRAS, MIRASDAR, 177, 178, 672A;
MIRAS, MIRASDARS,
could in theory reclaim their lands at any time, 177
their present position, 178
MIRAS, MIRASDAS',
assent formerly necessary for admission to ownership within their village,
672k
MIRAS TENURE,
compared with customary tenancies in England, 178/
MISREPRE SENT ATION ,
deprives consent of usual effect, 1076, 1078
* Kalidas Ravidat v Pranshankar Jihhal, Bom. H. C. P. J. 1884, p. 8.
f Gan Savant v. Narayan Dhond Savant, I. L. R. 7 Bora. 467
1204 INDEX.
MISTAKE. See Ignorance, 1075
MITAKSHARA,
where paramount, 12
is the commentary of Vijnanesvara on Yajnavalkya, 15
on payment of father's debts, 1087s5
on power of alienation of a paterfamilias, 1088
See Adoption passim; separate List of Hmdu Authorities
MITRAMISRA,
the author of Viramitrodaya, 22
MOHANT. See Mahant
MOHATUR WIDOW, 361
MONEY LENDING,
inter se by coparceners conclusive of partition ? 636
MORAL DEFICIENCIES,
persons labouring under disqualified from inheriting, 149
MORGENGABE, 267, 268^
confused with dower, 268a
MORTGAGE,
not sale allowed by ancient law, 195, 672
accompanied by possession, ih.
requires assent of all coparceners, 747
except those absent and in case of emergency, 688, 672, 747
See Coparcener ; Alienation
by son is subject to maintenance of mother and marriage expenses of sister,
752b
coparceners liable inter se in proportion to shares, 720
a single coparcener may redeem the whole, ih.
and hold as security for contribution, ib.
all sharers to be served with notice, ib.
mortgagee's remedy lies against any share, 721
a sale in execution of a decree on a must embrace the whole interest,
720
attachment and sale not necessary to give effect to the lien, 584a
by father in Madras : all sons must be joined in suit, 584
in Kanara, 672fe
See Kanara
redeemable for ever, ib.
so (formerly) in Norway, ib.
MORTGAGEE,
may refuse redemeption of part, 720
must serve all co-sharers with notice of foreclosure, ih.
INDEX. 1205
MOETGAGEE— contmMed.
in execution must sell the mortgagor's and his own interest, ib
See Alienation; Mortgage, 721
MOSAIC LAW,
mixed up things spiritual and temporal, 49b
compared with the Hindu law, ib.
MOTHEK,
does not include steg-mother, 102
never outcast to son, 555
preferred as guardian to father, 338, 413
See Guardian
as manager cannot alienate without necessity, 570
must be maintained, 556 w
is entitled to maintenance out of the family property, 751
mother's claim to separate maintenance when allowed, 1038r
claim of to support not extinguished by allotment to her of a share, 723
whether deprived of her right to residence by a sale of the family house,
674, 751
when inherits, 101, 421ss, 425, 428
though separate, 422
postponed to father by the Vyav. May. in Gujarat, 102, 421
succeeds to her daughter, 508, 509
inheriting from son takes absolutely? may not alien, 287 ty, 295, 296, 424
takes precedence over widow amongst Khojas, 152
and by custom in Gujarat, 152, 372, 383
but not allowed to dispose of the estate, 152
of a Girasia is entitled to the Girasi hakks by succession, 421
postponed to son in collateral line, 463to
but not in a succession devolving through her, ib.
mother's estate, 439
similar to that taken by a widow, 102, 287m), 422, 424
devolution of property inherited by , 436
property inherited through by a son once held to devolve in her
line? 463
inheritance to is rather by succession than survivorship, 656n
in Punjab among some tribes property inherited through excluded
from partition, ib.
not so among others, ib.
See Property, Separate and Self- Acquired , 658
son regarded by Vyav. Mayukha perhaps as having an unobstructed right
of inheritance to his 's Aparibhashika Stridhana, 285n
but not said to be joint-owner by birth, 656n
whether such property taken by him is ancestral, 658
the Mitakshara does not recognize a joint ownership of mother and son,
135, 285n, 656n
nor does the Smriti Chandrika, 285n
children cannot demand partition of 's property in her life, 749
mother's assent to partition required by several castes, 605t, 612, 614g
1206 INDEX.
MOTREB.— continued.
cannot demand partition, 710g, 749
except as guardian for her son, 755
is entitled to a share in a partition, 710, 741, 7495s
mother's right to specific allotment arises when partition is made, 605i
limitation of her share, 606a;
under what conditions takes a share, 386, 605?;, 709d
mother's share equal to a son's in partition, 709b, 714, 745b, 749
share taken by in a partition is only a means of subsistence (Smr.
Chand.), 288, 715
mother's power of disposal over share given her on partition, 713x, 749,
1036
cannot, by adoption, divest her son's widow's estate, 92, 880
remarriage of as affecting her right of succession, 102, 426, 440
See Adoption II., 817, 832; III., 880; IV., 944, 945; V. passim;
Steidhana
MOTHEE-IN-LAW
is the guardian of her daughter-in-law, 385
direct has preference over step , 490
postponed to her daughter-in-law as heir to her son, 386
succeeds to her daughter-in-law, 485, 489
See Adoption III., 870, 893
MOTHEE'S COUSIN'S GKANDSON
is heir according to Bengal law, 460n
MOTHER'S FATHER'S BROTHER'S GRANDSON
is heir according to Bengal law, 460n
MOTHER'S (MATERNAL) AUNT'S SONS, 123, 457
MOTHER'S (MATERNAL) UNCLE'S SONS, tb., ib.
MOTHER'S (PATERNAL) AUNT'S SONS, ib., ib.
MRITYU PATRA, 197
is a conveyance operating after grantor's death, 216
common under Hindu law, 216, 217
how construed, 217
See Adoption VI., 982; Will
MUGLAI HAKKS, 425
See Allowance
MUNDIUM, 797n
MUNJ,
meaning of, 939t
See Adoption IV., 941, 942; Upanayana, 941
INDEX. 1207
MUEALI CASTE, 416, 471, 489, 494o
NAIGAMA SECT. See Caste, 619
NAIKINS. See Adoption VII., 1066
NAIKS OE NAYABS. See Tribes, 272tt), 396a;
polyandry amongst , 272m5
decay of polyandry amongst , 402g
female gentileship amongst , 398
women of not allowed to marry a man of a lower caste, 401e
marriage with brother's wife disallowed, 402g
two husbands discreditable, ih.
marriage of dissoluble at will, ih.
NAISHTHIKA BKAHMACHABI,
successor of Guru, 486
succession to , 133
NAIVEDYA
= food offering to gods, 764
separate offering of is a sign of partition, 637
NANAK-SHAHI SECT. See Caste, 635
heirs to a , ib.
NANDA PANDIT, 917
NAEADA SMEITI, 43
its age, 44
NAKVADARI HOLDINGS,
sub-division of not allowed, 684
nor separation of the house from the holding, ib.
daughter excluded from succession to by custom in some places,
406
NATRA. See Remarriage, 436b
NEARNESS OF KIN
to a deceased raja preferred tb survivorship, 71
NECESSITY. See Family, 588, 688t, 747
NEGATIVE ELEMENT
of combined will the stronger, 568t
NEPHEW, . .
(father deceased) and uncle have equal rights on partition, 71, 7^
represents his father in undivided family, 333
1208 INDEX.
NEPHEW— contrnttet/.
when succeeds, 103, 104, 424, 444
nephews take per capita, 424, 433
preferred to half-brothers by Vyav. May., 430q
when excluded by surviving uncles, 103, 429
excludes a sons' widow, 431t
succeeds to his aunt, 610
to be preferred by widow in adoption, 914
nephews held to be sufficiently represented by their uncle, 574
sister's son preferred to maternal aunt's son, 460n
postponed to cousin, 444
sister, 463
contra in Madras, 463ty
to samanodaka, 456
See Adoption II., 809 ; Bhacha
NEPHEW'S DAUGHTER
not an heir in Bengal, 467
NEXT FRIEND OF INFANT,
any one may come forward as , 624t
a relative preferred, ib.
See Minor
NIBANDHA,
ranked as immoveable property, 176p, 706a;
whether of necessity " immoveable property " in statutes, 706aj
widow excluded from succession to by Brihaspati, 261
NIECE
takes a share with her brother? 431
sister's daughter not an lieir, 444
See Adoption IV., 919; Brother's Daughter, 465
NIECE'S GRANDSON,
his succession, 465
NIECE'S SON,
his succession, ib.
See Adoption IV., 919
NILAKANTHA
is the author of Vyav. May., 20
life of , 21
NIMBADITYA, 537
NIRDHANA,
meaning of , 269
INDEX. 1209
NIRNAYASINDHU,
authority of , 13
is the work of Kamalakara, 23
See Separate List of Hindu Authorities
NITYA ADOPTION. See Adoption VI., 1008
NIYOGA,
in Orissa, 516a
makes the Kshetraja legitimate, ih.
NOMINATION
of a successor to a Guru, 521
NOTICE,
doctrine of , 8p
binding taker of property, 188
of foreclosure, 570s
See Adoption III., 693; VI., 991; Ignorance; Mortgage;
Registration
NULLITY. See Instrument, 595
NUNCUPATIVE WILL. See Will, 618, 740
NUPTIAL GIFT
constitutes separate property, 324, 666, 773
NUZZARANA
usually taken by Hindu rulers for recognizing an adoption, 836n
NYAYADHISH, 234
OBLATIONS,
funeral , 20, 69
performance of important, 62
See Funeral Ceremony; Inheritance, 59; Sraddha
OBLIGATION,
a Brahmana is born under three s, 789, 823
merely religious s will not be enforced by Civil Courts, 813
obligations of the father pass to the heir, 75, 1088
to pay father's debts is a part of the inheritance, 163
for debts dependent on taking property, 76t
limited by Act VII. of 1866, ib.
to pay father's debts does not extend to those of other members, 193
father's securities bind sons unless they are for profligate purposes, 73
assignment of s, 685e
See Adoption III., 870, 871; VII.; Debts; Father; Promise,
193, 203
1210 INDEX.
OBSEQUIES. See Adoption VI., 995o; YII., 1022, 1023, 1027; Funeral
Ceremony
OCCUPANCY. See Prescription
OCCUPATION,
of waste is under Hindu law a natural right, 174
mere does not confer ownership (Mit.), 361
OFFICE. See Eldership; Hereditary Office, 715; Vatan, 684
OFFSPEING,
of concubine entitled to support, 75
(Sudra) of a casual connexion inherits if recognized, 78
OPPKESSION,
of debtors under British and Native rule, 718t?
OKAONS. See Tribes, 269c
ORDEAL, KOSHA, 703
ORDERS. See Asramas, 61
ORGAN,
defect of, a cause of disqualification, 117, 141, 541
ORISSA, 516a, 786
ORNAMENTS,
commonly worn by a woman not subject to partition, 205, 674, 676p
unless given in fraud of coparceners, 205, 675
given for ordinary wear are Stridhana, 205, 294m
license to use on particular occasions not a gift of them, 186, 281r
of courtesans exempt from seizure, 798r
given to concubine inherited by her husband, 482
or her patron? ib.
See Gift ; Jewels ; Partition
ORPHAN. See Adoption II., 806p, 8322; V., 949
OTTI MORTGAGE, 273
OUDICH BRAHMANAS, 1066
OUTCASTE,
sons born before father's expulsion are not , 149j/, 549
but subsequently born share his expulsion, ih., ih.
outcaste's daughters are not exi)elled. ib., ib.
INDEX. 1211
OUTCASTE— continued.
outcastes and their children are disqualified from inheriting, 149, 641, 544,
661
doctrine does not apply to families sprung from sons, 149y
See Adoption II., 816, 1817; III., 845; IV., 944; Disqualifica-
tion ; Exclusion ; Maintenance
OWNERSHIP,
origin of, 173
is a matter of secular cognizance, ib.
law of discussed by commentators at an early period, 234
in what consists, 187
possession necessary to the completion of , 104 gr
constituted by right of exclusive use, 303Z
complete in the taker is the general principle of Hindu law, 656n
power of alienation not essential to , 303Z, 305r
comparison of European laws, 3031
under Hindu law not lost by absence, 672
nor without owner's will, 174, 602
subject to public law, 187
restrictions still recognized in the North of India, 177a
arising from possession, 644
of the transferee cannot be greater that that of the transferor, 7
of village communities over common lands, 672/c
tribal of lands the source of individual , 128/, 672/c
tribal not found in Bombay Presidency, 399
unobstructed, 317o
obstructed, 318
collective in Malabar, 608h
See Adoption VII., 1013, 1014; Gift; Possession; Property;
Sale
PAISACHA marriage, 484, 486
See Marriage
PAKSHA ceremonies, 1012o
The Jains have no , 812h
PALAK KANYA,
quasi adopted or foster daughter, S28y, 907
may be discarded, 834&
PALAKA PUTRA, 827, 906, 1009, 1066
See Foster Son
PALL A, 283, 480
provision must be made for , 373
In Gujarat resumed on widow's remarriage, 395/i
1212 INDEX.
PANDITS (or SASTRIS),
opinions of , 2
testimony of , 13
See Adoption I., 785; IV., 941; VI., 963
PARADE SI,
meaning of , 7B8y
See Caste
PARASARA SMRITI, 43, 50
PARCENER. See Coparcener; Illegitimate Son; Partition
PARENT,
to act with anxious care in giving a son , 833
parents entitled to maintenance, 253
order of s' succession, 421, 422
comparison of Salic law, 422x
See Adoption passim; Father; Gift, 711^, 807g ; Guardian;
Ihebitance ; Maintenance ; Mother ; Partition
PARENTS' SAPINDAS,
succession of to Stridhana, 140, 484*5, 508
PARIBHASHIKA STRIDHANA,
according to the Mitakshara no distinction between and other kinds of
Stridhana, 135, 283
succession to according to Vyav. May., 135
PARIT CASTE, 422
PARTIES TO SUITS,
all members of joint family must join as plaintiffs, 567g
one in possession before institution of suit is a necessary party, 635fe
See Family ; Father ; Manager ; Representation ; Suit
PARTITION,
defined, 559, 561
Vijnanesvara's definition defective, 561
is regarded by the Civil Law as a kind of exchange, 559
is a particular kind of intention, 193, 765
in there is a break of continuity of the person and familia, 62i/
separate enjoyment for convenience does not constitute , 641, 711
how a source of property, 57, 63
division of the subject of , 561
will to effect , 611 631
favourably viewed by Hindu law, 624/i
family is the basis of the law of , 560
governed by usage, 7
See Custom : Usage
INDEX. 1213
PARTITION— contmtted.
according to caste laws, 612.S.9
son's right to claim derived from his co-ownership, 611, 658w
requires consent of all members (Maroomakatayam), 675s
Complete and Partial
son's right to denied by many castes, 612, 613
in Bengal son cannot obtain , 163
of self- acquired property when allowed, 610
of ancestral property held by father at will of son, 173, 609, 611, 726
confined to descendants of a common ancestor, 606
claimable by grandson, 611, 730
extends to the fourth in descent from the common ancestor if present, 622,
753/
not claimable by a grandson during the life of his father against the father's
will?* 611, 6456
deferred till delivery of pregnant widow of deceased coparcener, 71, 609,
769
right to confined to demandant, 617
cannot take place between husband and wife, 85
between co- widows, 95
females cannot demand , 627
otherwise in Bengal, 629
mother cannot enforce , llOq
when a guardian may claim on behalf of the minor, 624, 708, 755
a co-sharer practising fraud does not lose his share, 630
See Fbaud
persons disqualified to inherit not entitled to , 629
may be enforced by purchaser of undivided share, 646, 651, 653
in such a case effect to be given to the particular transaction, 651
See Coparcener
coparcener must claim of his whole share, 646
final re-opened for one excluded as outcast on his expiation, 56c
in the presumption is of all property held by coparceners being joint,
653
possible without property, 764
part reserved is divisible, 648
of lands redeemed may be enforced after a previous , 633
property omitted through inadvertence subject to , 648, 675, 758
comparison of Roman law, 648
of lands subject to public service, 256
of a vritti how made, 671e
woman's jewels excluded from , 204, 294wi, 675p
* The rules presume an estate descended to the father or taken by him in
partition, not a mere right which he may assert, as before partition. In the
latter he cannot be superseded by his sons. See Mit. Ch. I. Sec. II. para. 6 ;
Sec. V. para. 3 and note; and Yajn. II. 117, 120, 121. The Smriti rule as to
the share claimable by a son after his father's death is extended to the case of
a claim made by the son on his father after the father's separation but no
further.
1214 INDEX.
VAETITIO^— continued.
also reasonable gifts from father to son, 711/t, 735
and to a wife or daughter, 205
is to be made of property as actually subsisting without allowance for
previous inequalities of expenditure, 698, 769, 760
unless there has been dishonesty, 760
of liabilities on inheritance, 684, 698
valid incumbrances to be deducted, 686h
of debts and other liabilities, 717, 721
marriage expenses of unmarried members to be provided for, 713
regulated by the nature of the property as divisible or not, 704
in specie not essential, 633, 649
of divisible property how made, 704
of naturally indivisible property, 717, 718, 756
in of Bhagdhari and Narvadari no sub-division allowed , 684
may be made with reference to property itself impartible, 679, 680
in case of partible and impartible property of one family, 256, 679
compensation for impartible property taken by one sharer, 675
comparison of English law, 675s
may be postponed during a life-estate, 632, 765
or a mortgage, 633, 648
not constituted by mere arithmetical determination of share, 632, 641
not constituted by taking profits in shares, 641, 642
but is by a limitation of rights to particular parts without actual distri
bution, 649
not constituted by agreement to divide lands still to be recovered, 633
effectual though not by metes and bounds, 631t, 765
determination of shares on , 698
limited to coparceners in existence, 71, 72, 722
Equal and Unequal
in ancestral property father's and each son's shares are equal, 704
according to Bombay High Court and Privy Council as to all self-
acquired property uncontrolled, 610s, 705, 706
in spontaneous of self-acquired property the head may reserve a
double share, 704
he takes an equal share if is enforced, 704, 705
father to distribute equitably, 705
not bound to equality by custom, 706v
between brothers must be equal, 710, 734
collaterals per stirpes, 710
rights arising from sole possession of a portion by & coparcener, 711
compensation in such a case, ih.
contrary ruling, ih.
comparison of English law, 712s
in case of a house built by a member out of his separate funds, 711
See Possession
in between reunited coparceners the shares are equal, 715
mother in a takes an equal share, 710g, 627, 627c
with an only son a moiety, ih.
by a division of profits, 717
INDEX. 1215
PARTITION— cowtmued.
distribution of acquisitions by different parceners proportionate to con-
tributions, 667n
unequal not now recognized, 706, 735, 746
except by consent, 767
of unequal gains must be equal, 669^
partial not provided for in the Hindu Law Books, 647
not claimable, 614, 645, 646, 717, 767A;
effected only by consent, 614, 645, 683, 717
among sons cannot be effected against their will, 193, 617
Method of
in no account of past transactions is to be taken, 699o, 711
except from the time that is wrongly refused, 111k
deduction from share for prodigal expenses, 717
partial distribution brought to account in a fresh general , 711
against the branch previously benefited, 646
rights and duties arising on , 698
duly claimed gives a right to account from that time, 699o
in the case of enforced complete accounts must be taken from time
of demand, 699
but not generally any further back, 702, 711fe
account how taken, 703
in a suit for all the coparceners must be before the Court, 699
computation in case of one member's separation, 698, 699
if detrimental Court can refuse , 626
under English law the Court regards all equitable rights, 627d
decree for effects a severance, 615, 633
not a suit without a decree, 765
effect of decree suspended by appeal, 615, 765d
decree for of estate paying revenue to be executed by Collector, 723
Incidents of
repugnant conditions cannot be annexed to estates taken on , 724
the right to cannot be » annulled by an agreement never to divide
certain property? 608
trade partnership constituted by agreement in , 639t/
signs of implied will to effect , 636, 771—778
may be proved like any other fact, 771
incompleteness of must be proved by those who assert it, 648, 6496
Consequences of —
once made is final, 638, 648, 759, 761, 762,
does not make members strangers, 226, 232
does not close all claims of father and son in case of pauperism, 723
does not deprive son of the right of inheritance, 359, 723
son born after sole heir to parent's share, 838
of newly discovered property, 758, 759
of a courtyard advisedly retained for common use refused, 755
so when division would prevent proper use, 757
consequences of partial , 711
partial separates the family as to the part divided, 645, 647p
but no further, 648
1216 INDEX.
PAETITION— ccmtmwed.
inchoate does not alter the rights of coparceners, 633
rights of tenants of united family after , 661w
evidence of— See Burden of Proof; Evidence; Presumption, 636, 640
limitation now affects some cases of , 753
exclusive possession for 30 years bars an action for further , 643
mortgaged property redeemed by one member and held by him exclusively
for 20 years is liable to , 641
See Adoption III., 901t; VII., 1046, 1047; VIII., 1075; Charges
Coparceners ; Debts ; Disqualification ; Distribution
Division ; Elder ; Endowments ; Expenditure, 760, 761
Pamily; Father; Female; Fraud; Furniture, 671
Grandson; Grant; Idol; Illegitimate; Indigence; Main
tenance; Mother; Ownership; Patrimony; Property
Widow
PARTNER,
partner's relations distinguished from those of a joint family, 560c
in business when inherits to a Banya, 125, 128
PARTNERSHIP,
joint family converted into , See Partition, 639a
PASHANDAS, 519
Jains are , 533
See Caste
PASTURE GROUND. See Grant ; Inam
PATERNAL AUNT. See Aunt, Paternal
PATILKI VATAN. See Vatan
PATITA,
what actions make a man , 523
may inherit after penance, 56c
PAT MARRIAGE,
is legal by Act XV. of 1856, 391
of a widow allowed among Sudras, 399
children of generally legitimate, 368, 369, 391
See Remarriage; Patni
PAT WIFE,
said to have the same rights as a lagna wife, 391
during first husband's life-time without divorce is but a concubine, 392
See Pat Marriage
PATNI,
meaning of , 82a;
who is and who is not a , 87
INDEX. 1217
FAT^l— continued.
alone entitled to allotment, according to Smriti Chandrika, 82a;
wife other than entitled to maintenance only, S2x, 87
alone has a right of inheritance according to the Sastra, 80, 87, 249, 398
PATNI BHAGA,
origin of , 373, 399, 745
prevalent in the Punjab and in Madras, 399
not now recognized elsewhere, 745
PATKIA POTESTAS,
under the Hindu law, 209, 275, 618
Koman. See Adoption VI., 1086n; Fathp^; Stridhaka
extreme formerly, 270, 275
gradually limited, ih., ib.
PATBIMONY,
once alienable, 196
causes of this, 195s
recovered by father is separate property, 663
unless recovered with aid of ancestral estate, 665
mother's assent required to partition of in some castes, 612
father's assent required in many castes, ih.
according to the Smritis not divisible, 672A;
See Iheritance; Partition; Property, 733
PATTADHIKARI,
= head of a Matha, 533
PAUNARBHAVA,
= son of a Paunarbhu, 604/i
PAUPER. See Adoption V., 951; Indigence; Maintenance; Partition, 723
PENAL CODE, THE INDIAN. See Adultery
PENANCE,
questions on , 13
treated of in Yajnavalkya, 16
in case of adultery, 401, 556, 800
fornication, 401
an out-caste, 553
See Disqualification, 56c
PENSION, 181
substituted for a saranjam must support junior members, 681
not attachable, 706a;
See Nibandha; Property
H.L. 77
1218 INDEX.
PEEMISSION. See Adoption passim; Sanction
PEEPETUITY,
rule against under English law rests on public policy, 198e
in favour of private persons disallowed, 185, 211/, 251
even under the form of a religious trust, 201^
in favour of an idol or charity, 185
See Endowment ; Trust
grants of land in not incompetent because raj impartible, 373
obstacle to in the presidency towns, 221
not in the mofussil, ib.
PEESONAL INHEEITANCE,
(English Law), 706x
PEESONAL LAW,
governs duties, 7
PEESONAL PEOPEETY,
(English Law), 706rc
in stocks and shares, ib.
PEE STIEPES. See Partition
PHALAVIBHAGA,
= division of produce, 717, 772
See Partition
PIGNOEIS CAPIO, 697/
PILGEIMAGE,
not recognized as a cause for alienation, 306
expenses of a not awarded to a widow as against her brother-in-law,
697g
PIOUS ACTS,
are indivisible, 756
PITEIDVIT,
= Enemy of Father. See Enemy of Father, 547
PLACE OF ADOPTIOON, 988
See Adoption VI., 992
PLACE OF WOESHIP AND SACEIFICE,
indivisible, 716
POLITY, 20
INDEX. 1219
POLLUTION,
arising from death; duration of , 848w
as effecting adoptive father and son. See Adoption III., 848; VII., 1022
POLYANDRY, 272
in Kamaun, 276 w
still subsists in Cochin and Travancore, 272
and amongst many of the aborigines of India, 396
such as Tothiyars
the Nayars, 272, 396a;
Seoraj, Lahoul, Spiti,
fraternal amongst the Thiyens, 397^;
and Khasias, 276m
reduced to biandry, 272W
its effects on inheritance, ih.
transition to the ordinary system, 273
connected with niyoga, 276
in Sparta, 276m
POLYGAMY,
is referred to in the Vedas, 795b
POSSESSION,
its effect to under Hindu law, 640d
adverse and permissive discussed, 636o, 641, 643, 6o0d
partial extended to the whole when rightfully taken, 1065g
separate of part of joint estate, 589g, 711
by the mortgagee is acquired by a bond fide attornment of the mortgagor
642t
not always given to a cultivator, 643
by Collector to protect revenue not adverse to real owner, 650d
in common by joint family, 625, 644
by co-sharer; its nature, 589
by one joint tenant is by all, 644
unless distinctly exclusive, ib.
exclusive constitutes separation, 589, 644
See BeTjOW
Necessary to bar co-parceners, 641, 642t, 643, 6Uz, 650d
mere non-enjoyment not equivalent to exclusion, 650d
change of when dispensed with, 180?;, 1065
generally essential to change of ownership, 213, 216, 642t
comparison of Roman law, 642t
not necessary to validate gift to son, 635A;, 738
change of replaced by registration, 635A;
exception to change of being replaced, 635/c
may be dispensed with when the deed is incontrovertible? 1065(7
separate a sign of partition, 640, 641
once held essential to partition, 764
as to ownership of separate share, lOig
perfecting title may be acquired notwithstanding an irregularity in taking
it, 642t
1220 INDEX.
POSSESSION— conimtted.
giving by a single co-sharer to purchaser protected, 589
exclusive by a single co-sharer raises a presumption of its being his
share in a past partition, 642
acquired pendente lite is subject to the decision, 635
before suit makes possessor a necessary party, ib.
is the strongest proof of ownership, 174
as a title prevails until a better is shown, 642t
title by arises concurrently with extinction of the right to sue, 644
long by a member with consent of other sharers gives him a right to
retain the particular portion in partition, 711
by several in succession must be connected by lawful deprivation to give a
prescriptive title to the last, 650d
acquired permissively or by tenancy does not become adverse by mere non-
payment of rent for 12 years, 642t
by the mortgagee after payment is not necessarily adverse, ib.
suits for , ib.
refused to co-sharers excluded by one? 589e
See Coparcener ; Gift ; Limitation ; Notice ; Partition ; Pre-
sumption; Property; Eegistration ; Sale
POSSE SSOBY ACTIONS, 643
jurisdiction, ib.
POSTHUMOUS SON,
obtains a share after partition, 649
See Adoption VII., 1014; Son, 722
POVERTY QUALIFICATION. See Adoption V., 951; Daughter (above,
Index)
PRABHU. See Adoption III., 850Z; IV., 918; Caste, 488
PRAJAPATI
declares patrimony impartible. See Inheritance, 262
Property A; Patrimony
PRAJAPATYA MARRIAGE, 481, 484, 486
See Marriage
PRECEDENCE
of begotten son over adopted son, 1043, 1044
See Adoption VII. , 1044; Eldership; Primogeniture
PRECEPTOR,
of a Brahmana, when inherits, 128, 451, 465, 469
inherits to a Naishthika Brahmachari, 134, 468
PRE-EMPTION
arises from former impartibility of patrimony, 672
right of may be exercised by a widow taking by inheritance, 298Z
INDEX. 1221
PEEFERENCE
in adoption by a widow, rule of , 914
PREGNANCY
of widow postpones partition, 609
See Adoption III., 843, 902; Partition
PREPARED FOOD
indivisible, 756
PRESCRIPTION
under the Hindu law, 642t, 649^
comparison of Roman law, 649^
under the Bombay Regulation V. of 1827, 644
does not arise where successive possessions are unlawful, 650rf
See Limitation; Possession; Ownership
PRESENT
from a friend is separate property, 324
to a woman; succession to , 509
See Stridhana
PRESIDENCY TOWN,
resider>ce in does not of itself subject a Hindu to English law, 3
testamentary law in . See Will
PRESUMPTION
of union of a Hindu family, 653
of joint estate, 637, 653, 663, 666m
this is easily overcome, 6706
in favour of joint acquisitions in united family, 74, 654, 663, 666m
circumstances may rebut it, 74
in case of separate acquisitions asserted and denied, 6706
of separate acquisiition from conveyances in a single name and long enjoy-
ment, 666m
of partition from separate possession, 641, 642
quiescent enjoyment of part, 631, 644
of allotment in partition against him who long holds a part of an estate
exclusively, 689e
of death when arises, 626
in a benami transaction, 665
of acquiescence of co-sharers when lessee continues to hold under lease
from a divided member, 711
of a debt contracted by the manager of a united family being joint, 687
in favour of widow's dealings approved by heirs, 1068
in favour of adotpion, 96755
against the gift of only or eldest son except as dvyamushyayana, 1062m
See Adoption IV. , VI. ; Burden of Proof ; Evidence
PRIEST,
priest's fees and duties of , 377, 389
inherit from Yajamana, 658
1222 INDEX.
PEIE ST— continued.
widow may succeed to emoluments by custom, 389
she appointing an officiator, ib.
an intruder may be sued, ib.
See Property, Sacred
PRIMOGENITUEE,
origin of , 819
under English law, 58
in ancient Hindu law, 65
was a right of headship rather than ownership, 677
connected with impartibility, 65i, 676t
instance of succession under rule of , 65t
junior son by birth entitled to precedence over elder son by adoption, 636g
provision for or succession by younger brother where prevails, 65i,
255
traces of still preserved, 676i
contests as to in India and Europe, ib.
See Adoption II. , 853e ; Appanage ; Brother ; Custom ; Elder-
ship; Precedence; Eaj.
PRINCIPALITY
ruled usually by a single line of Chieftains, 675
various modes of succession to , 676
PRITIDATTA
is the affectionate gift of the husband, 135, 259, 486
See Stridhana
PRIVITY
connects successive possessions, 660d
PRIVY
is indivisible, 757
PROBATE
granted to adopted son, 1081
of a will in the Mofussil needless, 221, 618a;
See Adoption VIII., 1081; Wills, 220, 221
PROCEDURE,
Hindu, 233
PROCEEDINGS,
legal, 24
See Adoption VIII. ; Limitation ; Suir
PROCREATION
by deputy was common in ancient times, 797rw
on a Sudra a ground of expulsion, 401t
INDEX. 1223
PEODIGAL. See Expbndituee, 786 w; Father; Interdiction
PEODIGAL EXPENDITUKE,
deduction for , 717
See Coparcener; Partition
PEODIGALITY OF FATHEE
a cause of rescission by son, 193a
See Prodigal; Burden of Proof
PEOFITS. See Eents and Profits; Partition, 641
PEOHIBITION. See Adoption III., 865, 866
PEOHIBITIVE WILL
prevails over active in a combination, 568
PEOFLIGACY. See Alienation ; Debts ; Interdiction ; Partition ; Prodigal
PEOMISE,
promises are sacred, 189, 248, 281, 686g
promises now create only a moral not legal obligation, 193, 203
property promised morally inalienable, 203
gratuitous s generally void, 192
made by the father binding on the sons, 161, 686gf
to wife if reasonable binds sons, 205
fulfilment of postponed to maintenance of family, 1089
See Adoption III. , 850 ; Father ; Son
PEOPEETY,
A. Its Characteristics under Hindu Law.
nature of under Hindu law, 175
power of sale not a necessary incident of *
local sacrifices held a consecration for the benefit of the first occupants, 195
allodial rather than feudal, 175
takes its characteristics from the family law, 263
they are not qualities inherent in the land, &c., ib.
referred to religious connexion by the ancient law, 49
connected with family sacra, 551, 957
rights of under the Brahmanical system connected ' with spiritual
union, 60q
possession of essential to an effective sacrifice, 59
partition attending dispersion of sacra, 672A;
as viewed by Hindu law is in itself capable of alienation (Smr. Chand),
nsy
sale of land once disallowed, 195, 672
religious gifts approved, 195, 196
irresumable, 128/, 175, 200
*See Bo. Gov. Sel. No. 114, p. 6, para. 12.
1224 INDEX.
PROPERTY— conemwed.
these the source of the right of alienation, 191
comparison of history of the religious gifts under English law, 191n
under various other laws, 672A;
See Dedication ; Endowment ; Gift ; Grant ; Idol ; Sacra
ownership regarded as indestructible without the owner's will, 672
See Ownership
conceived as not transferrable without consent, 602, 1023
how far volition passes depends on personal law, 7
partition originally a mere distribution for use, 672
may be freed from special custom by mutual consent, 681
intention to free from custom must be expressed, ib.
Limitations of , 1695S
by owner restricted, 179
must be in favour of an existing person, 182, 185, 981
cannot generally be made inalienable, 188
limitation of female ownership, 293s5, 425
limited rights of widows, 90, 91, 298, 983
of wives, 85, 309
See Daughter ; Female ; Stridhana ; Succession
ownership and succession of tribes and village communities, 128/
succession of Brahmana community, 128
a stranger cannot be introduced as a co-sharer without assent of co-
members, 6T2k
Mirasi rights, 177, 672A;
Bhagdari and Narvadari estates *, 176
private property generally subordinated to the will of the sovereign, 179n,
185
religous gift usually inalienable, 195
limited to a corporation or family, 198, 199
limitations unrecognized by the law are refused effect by the Courts! , 181,
183
See Dedication ; Endowment ; Custom ; Grant ; Inam ; Jagir
B. Sources of Property.
right to acquired by occupancy, 360
inheritance and partition how sources of , 57, 63, 561
See Endowment; Gift; Grant; Inam; Inheritance; Limita-
tation ; Occupation ; Ownership ; Partition ; Possession ;
Prescription ; Reversioner
C. Jural Relations connected with Property generally.
I. Resting on Volition of Owner
a. Transfer and Creation of Rights by act inter vivos
generally alienable, 706
illegal restriction on a coparcener's dealing with his share disallowed, 661
*See Bom. Gov. Rec. No. 114. At p. 5 is an instance of the village
changing the seat of cultivation triennially, which illustrates Tac. Germ. 26.
See too 5th Rep. 723.
\Kumar Tarakeswar Roy v. Kumar Soshi Shikhareswar, L. R. 10 I. A.
51.
INDEX. 1225
PEOPERTY— contintted.
personal = self -acquired, 1089
the right to give it away, 601a;, 706, 1089
self -acquired and separate may be given or bequeathed, 129, 182, 447, 706
or otherwise disposed of by the owner, 192
interests unknown to the law cannot be created, ib.
See Abeyance; Alienation; Coparcener; Gift; Mortgage; Par-
tition; Perpetuity; Purchase; Sale; Trust
/3 Disposal by Will
See Bequest; Dedication; Devise; Endowment; Gift; Testa-
mentary Power; Trust; Will
II. Descent and Disposal governed by Law
a. Under the Law of Inheritance
is inherited for religious benefits, 551, 660^
taken as a " universitas," 160
ancestral descends in direct male line with its accretions, 654
descent of ancestral obstructed and unobstructed, 60
See Bandhu; Daughter; Daya; Descent; Devolution; Father;
Female; Gotraja Sapinda; Grandson; Inheritance;
Mother; Perpetuity; Sapinda; Son; Stridhana ; Succes-
sion ; Widow
/? Under the Law of Partition
^hy land and dwelling house were considered indivisible, 672, 717
endeavours to preserve in the laws of the various countries, 673
self- acquired when mixed with ancestral becomes ancestral ,
655
a, grant of land in charity, if not for particular purpose, is divisible ,
743
ancestral partible at will of father, 609
distribution of ancestral once allowed merely for use, 672fc
consequences of this, ib.
See Brother ; Coparcener ; Debt ; Distribution ; Eldership ;
Family ; Father ; Mother ; Nephew ; Obligation ; Pre-
sumption ; Primogeniture ; Sister ; Son ; Stridhana ;
Widow ; Wife
y Under the Law of Adoption
See Adoption VII. , VIII. ; Son ; Widow
III. Liabilities annexed to Property or attending interests therein
burdens on , 161, 238, 685
not hypothecated for father's debts, 73
yet is assets for payment of debts in the hands of the heir, 168, 192, 660
zamindari descended from father is liable to pay his debts, 76
even self-acquired, not alienable so as to deprive family of maintenance,
601, 1089
attachment of impartible for debts discussed, 161
of family estate, 602
provision for concubine a charge on , 164
See Appanage ; Charge ; Creditor ; Daughter ; Debt ; Dis-
qualification ; Family; Father; Female; Maintenance;
1226 INDEX.
PROPEKT Y— cowtmMed .
Managee; Mortgage; Purchaser; Eeversioner, 89o ;
Sister; Widow; Wife
D. Classes of Property.
I. According to Natural Character
a. Iin7noveahle Property
what is immoveable under Hindu law? question discussed, 706x
immoveable in legislation, 706ss
immoveable includes a hakk, ib.
and arrears? ih.
may include property purchased with capital or profits of ancestral
moveable , 654/i
immoveable does not include an annuity from Government land
revenue, 706
but one to a temple out of extra assessments held a charge on - — ,
ih.
regarded as inalienable except with assent of family? 601
disposable by owner, 705, 740
power of disposition supported by a Sastri, 741
and allowed by the High Court of Bombay, 705
naturally indivisible how disposed of, 764 — 757
immoveable not to be aliened so as to reduce family to indigence, 564,
1089
a compound is divisible under ordinary circumstances, 757
restrictions on widow's disposal of , 709
See Alienation ; Stridhana ; Widow ; below /3.
a. a. Moveable Property
not identical with " personal property " under English law, 706
disposable by owner, 739, 740
widow's power to dispose of , 709
See Personal Property ; Stridhana ; Widow
ft. Incorporeal Property
Nibandha declared immoveable, 176p
includes a religious fund, 716m
See Hakk, 706cc ; Nibandha, 176p, 706; Pension; Saranjam
y. Indivisible or Impartible Property ; see below D. II.
indivisible described, 653
legally described, 675
kinds enumerated, 671, 715, 716, 756
legally indivisible, so to be disposed of in partition as to secure maximum of
advantage to all coparceners, 716
may be sold and proceeds distributed or equitably adjusted by agree-
ment, 673, 717, 756
impartibility not a reason for exoneration from debts, 163
D. II. According to purposes served
^ a. Sacred Property
sacred , 128/, 185, 195, 199, 520
dedicated to an idol, 155
confined to priestly family, 389
sacred inalienable under most religious system.s. 1850
INDEX. 1227
PEOPERTY— con ttnued .
comparison of Roman law, ib.
subject to special limitations as to inhertance, partition, and alienation
743
temple allowances are hereditary and divisible, (subject to special customs)
in some cases, 681
trust property partible subject to trust, ih.
a widow may enjoy appointing a substitute, 389
intruder subject to a suit ib.
See Alienation ; Ascetic ; Custom ; Dedication ; Division ;
Endowment; Gift; Gosavi ; Grant; Idol; Krishnarpana ;
Mahant; Perpetuity; Srotriyam; Temple; Trust; Vritti
p. Charities and Public Dedications
dedicated— is a trust, 161
generally inalienable, ib.
See Charity; Dharma; Grant; Trust; Will
y. Political Tenures
IMPARTIBLE — ou account of political condition, 675
may be joint, 679
includes a pensoin commuted for a resumed saranjam, 603
may form part of family estate, 679
and be taken into account in partition, ib.
not necessarily inalienable, 680t5, 681/,
seniority by birth gives superiority of title to , 74, 75
is inherited by the nearest male members in preference to daughters,
679
claim to a raj as being refuted by enjoyment opposed to impar-
tibility, 681/
the Tarwad's in Malabar, 608/i
See Grant; Jagir; Raj; Saranjam; Zamindar
8. Official Tenures
vatan is divisible , 767, 768
a vatan impartible, held not to have become partible by cessation of
o£&cial functions, 765
See Hereditary Office ; Josm ; Vatan
D. III. According to Relations of the Persons interested
a. As Members of a Family
a. In equal Relations
1 1. Ancestral Joint Property
Ancestral — described, 654, 656, 661, 663, 665
joint regarded by Hindu law as an attribute of common origin, 560
implies concurrence of rights over the aggregate, ib.
depends on indivision of family, 561
comparison of Roman and French laws, 554fc ,
a joint trade is joint , 324
acquired by use of patrimony is joint , 654, 663
purchased out of the income of ancestral is itself ancestral, 665
immoveable acquired by means of ancestral moveable ranks as
ancestral immoveable , 654/?, 665, 666
1228 INDEX.
PKOPERT Y— continwed .
acquired through instruction at the family expense is joint , 680
self-acquired does not rank as joint where acquirer received only sustenance
and elementary education from family, 670
acquired while acquirer was drawing an income from family is joint ,
668
Joint causes absorption of interest on death without male issue, 560
the whole property of each member presumed to be joint , 653, 663,
666w, 6706
See Family; Presumption
PROPERTY, ANCESTRAL,
gift to united brethren without discrimination is joint , 605t, 654
becomes ancestral as soon as it devolves undisposed of on descendants, 655
ancestral co-extensive with objects of unobstructed inheritance, 656
father and son have equal ownership in ancestral , 345, 371, 549, 657,
665, 726, 727
whether ancestral is alienable by father for purpose not illegal or
immoral, 576, 577
joint inalienable by co-sharer under the Mitakshara, 1089
gift of immoveable ancestral allowed by Mitakshara to a separated
parcener, 448
may be joint though impartible, 679
indivision excludes several ownership according to Day a Bhaga, 701
conditions under which partition may be claimed, 609
ancestral, partible at will of son united with father, head of a family, ib.
after partition retains its character between the parcener and his sons,
659, 661
comparison of English law, 661m
share taken on partition is ancestral to the branch taking it, 661
undivided not answerable for separate debts, 75
includes property mortgaged but not recovered, 633
recovered by one of several sons, 65, 727
immoveable mortgaged by the father and sold in execution subject
to son's claim for partition 642p ; comp., 576, 579, 596
effect of a single parcener's sale, 637q
father has no exclusive right in devolving on him by brother's
death? 655
See Coparcener ; Eldership ; Partition ; Possession ; Residence,
648; Sale; Savings, 153; Widow, 299
a. 1. 2. Separate and Self-acquired Property
PROPERTY, SEPARATE AND SELF-ACQUIRED,
defined, 324, 325, 664, 666, 669
is of two sorts, 664
as between father and son, ib.
as between coparceners, 666
independently acquired ranks as separate estate, 74, 667o
undivided members may have , 660gf
separate includes : property inlierited from females, brothers, colla-
terals, or great-great-grandfather, 655, 656, 666
INDEX. 1229
PROPERTY, SEPARATE AND SELF- ACQUIRED— conttwued.
nature of property thus taken discussed, 656
inherited in any right other than lineal inheritance through males is
self- acquired ? 659, 665
separate includes : property sold, which a coparcener repurchases
out of his own means, 662
savings and accumulations by junior members out of their allotments
in a zamindari, 153, 683
gains of science without aid of patrimony, 666
a reward for extraordinary achievement, 667o
gains of valour without aid of patrimony, 666
gains of chance, ib.
nuptial gifts, 773
present from friends, ih.
grant of village, 664
bequests, 221, 222
property recovered from stranger holding adversely to family of
acquirer, 662
ancestral property recovered by father, 661, 665
the recovery being through his own ability, 661, 666
mother's estate is not ? 656n, 658
zamindari inherited through mother not , 658
received from father-in-law or maternal grandfather is (in Dera
Gazi Khan), 656n, 666w
of half-caste received from his European father is self- acquired, 221
property renounced in favour of younger sons is their separate , 661/c
source of fund employed determines if property is separate or otherwise, 670
property divided is treated as separate of the member as against
separated members, 661
the acquirer has absolute power of disposal over separate , 447
presumption that is self-acquired from long enjoyment and separate
dealings, 666m
unequal distribution of separate is admissible, though opposed to
commentaries, 2055S, 601, 706, 739
separate may be given or willed to wife to the exclusion of sons?
734, 760
contrary opinion of the Hindu authorities, 73555, 759, 978
especially as to immoveables, 601a:;, 737
See above D. I. a.
he may give her even ancestral separate to a moderate extent, 204
when son, grandson, or great-grandson can demand share in separate ,
611, 725, 726, 732
acquired by different parceners how to be distributed, 667o, 673
presumptions which arise in such cases. See Burden of Proof;
Presumption
See Adoption VII. ; Alienation ; Coparcener ; Distribution ;
Father; Mother; Testamentary Power, 9555, 618
1. 3. Recovered Property
meaning of " recovered " 663, 727
nature of , 662
recovered by father when ranks as self- acquired, 661, 665
1230 INDEX.
PEOPERTY, SEPARATE AND SELF-ACQUIRED— contmMed.
and when as ancestral, 665
ancestral recovered without the aid of the patrimony becomes
separate , 663, 667o
ancestral recovered by another coparcener with the aid of patrimony
is ancestral , 661
subject to deduction of one-fourth for the acquirer, ih.
looked on jealously by custom though approved by the Sastras, 699
a. 2. In Subordinate Relations
gift ancestral immoveable restricted by Sastri in case of a married
man, 447
and his testamentary power, 1021s
nuptial gifts are separate , 324, 666, 774
property acquired by a woman usually her husband's, 85
See Adoption VII. ; Concubine ; Daughter ; Female ; Illegitimate
Son; Marriage; Sister; Widow; Wife
p. As members of Communities and Corporations
transferred by a mahant by breach of trust can be recovered, 188/i
See Bhagdari, 407, 684; Endowment; Matha
7. As members of Castes and Classes
See Brahmanas; Mahars
8. Co-Ownership; Co-Possession; Co- Responsibility
See Coparcener ; Family ; Manager ; Ownership ; Representa-
tion ; Possession ; Suit
Ancestral. See above D. III. and the references
Divisible. See Property A; C. II. ^8 ; D. I. y ; D. II. a; D. III. a. I. 2,
and the references
Immoveable. See Property D. I. a. 1. 1, 1. 2; Alienation
Impartible or Indivisible. See Property D. I. y; C. II. p; D. II. y;
D. III. y, and the references
Inalienable. See Property A. D. II. a, and the references
Religious or Sacred. See Property D. I. /3; II. a, and the references
Self-acquired or Separate. See Property D. III. a, 1. 2; Alienation;
Debt ; Inheritance ; Partition ; Presumption
PROSTITUTION,
property acquired by belongs to the husband, 483
PUBERTY. See Adoption II., 832z ; III., 891 ; Age
PUBLIC POLICY, 188, 189
PUJARI,
= worshipper, 621
PUNARBHU, 367, 604, 799
son of a regarded as illegitimate, 369
legitimized by Act XV. of 1856, 368
See Pat. ; Remarriage, 368, 369
INDEX. 1231
PUNJAB,
Punjab Laws Act IV. of 1872 and XII. of 1878, presumption in favour of
Hindu and Mohammedan law applicable to Hindus and Moham-
medans, 6
PUPIL,
when inherits, 127
when inherits to a Sannyasi, 133, 468
See Disciple; Guru; Student.
PURCHASE.
by a coparcener is presumed to be on the joint account, 654
of son disallowed, 806
of children by dancing women once common, 834&
by Gosavis of disciples, 834
See Adoption II.
of wife disapproved, 263, 358
See Wife.
PURCHASER,
for value favoured, 192
of family property; his responsibilities, 579, 591
from father or manager bound to inquiry, 595
in good faith from a widow exonerated, 93
with notice of widow's claim, 75
without , ih.
of an undivided interest, becomes a tenant in common with other co-sharers,
566, 587, 588, 652
not entitled to any particular portion of the estate? 566, 587, 646, 651
has to work out his right by partition, 566, 587, 651, 652, 653, 717
must join all the members as defendants, 652
on partition may be allowed the particular portion so far as justice allows,
651
cannot be put into possession, 616, 652
but in possession allowed a joint possession with other co-sharers, 589, 616,
652
will not be ousted, 589
not affected by subsequent partition to which he was not a party, 588
under decree against a coparcener must sue for partition, 592, 646, 746
contrary rule as to a father in Madras, ib.
PURI CA.STE, 530
See Gosavis.
PUROHITA, 180
PUROHITS, 197, 235/1
PUT,
escaped by a single adoption, 1013
1232 INDEX.
PUTEA,
in the Smritis does not strictly include an adopted son, 807x
See Son.
PUTKESHTI. See Adoption VI., 957, 993, 995
PUTRIKA-PUTKA, 419, 803, 805
two senses of , 802n
not enumerated by Manu, 806m, 945/i
but named separately, ib.
was ranked above Kshetraja, 691a
placed on the same footing as aurasa, 945/i
sister's daughter or son cannot be , 933
the daughter herself might be called and perform obsequies, 945/»
not recognized at the present day, 806
See Adoption II., 793; IV., 815; Appointment, 803.
PUTRIKA-SUTA, 79, 81
QUASI-ADOPTION. See Adoption, 960
QUASI-GOTRASHIP,
amongst the lower castes, 831o
QUIT-RENT, 644
RAJ,
may exist for purposes of property without special political status, 679
inheritance to such a resembles that to a principality, ib.
succession to , 66, 153, 678
compared with European system, 676t
illegitimate son excluded from , 140
regranted before adoption to widow, 1016
See Custom ; Descent ; Devolution ; Eldeeship ; Principality ;
Property II.
RAJAH. See Adoption VI., 991
RAJPUT CASTE, 365, 430
RAKSHASA MARRIAGE, 484, 486
See Marriage.
RAMANANDA, 537
RAMAVAT CASTE, 539
RANGARI CASTE, 335
INDEX. 1233
RATIFICATION,
no of that which is not done on account of the principle, 350, 1034
requires knowledge, 1078
of a lease made by widow, Ml, 350
by conduct of son of payment of mortgage to his mother, 571
in cases of adoption, 971
See Acquiescence; Adoption VI., 898; VII., 1034; Estoppel;
Relation, 1071Z; Widow.
RATIONALIST,
ranks as an Atheist, 787
RAVALNATHA, 494o
RE-APPEARANCE. See Absence; Abstentee
REASON OF LAW,
when consulted, 624, 626, 639, 667, 702, 768
See Interpretation
REASONABLE INQUIRY. See Purchaser; Manager; Minor; Creditor
RECORDS. See Authentication, 895
REGISTRATION,
cases of referred to, 642t
case of gift discussed, 6d5k
effect of , 189, 190
as notice, 189
omission to register, ib.
replacing possession for transfer of ownership, 634
partition deed for Rs. 100 and more to be registered, 631r
but partition otherwise proveable, ih.
See Adoption VI., 1004; VIII., 1071
REGULATIONS. See eeparate List
RELATION— (Term of English Law),
cannot validate an act void for want of power, 861, 1070
the invalidity of an adoption is not cured by a supervening state of
things in which it would have been valid, 905/
RELATIONS. See Kinsmen
RELATIONSHIP,
remote , 235
analogies of European law, ih.
of the adopted son dependent on the Samskaras, 762, 1057
See Adoption IV.
H.L. 78
1234 INDEX.
RELATIVES,
provision for at the time of partition, 685, 1056
blood of wife. See Adoption IV., 921
See Inheritance; Kinsmen; Maintenance; Partition
RELIGION,
as determining personal law, 4
RELIGIOUS CEREMONIES. See Ceremonies
RELIGIOUS COMMUNITY, 517, 520
See Custom ; Property
RELIGIOUS ENDOWMENT. See Endowment
RELIGIOUS SERVICES, 520
RELINQUISHMENT,
of a share, recognized, 752, 762
induced by fraud is not binding, 763
by son. See Son, 324, 722
by widow. See Widow, 89, 92
See Adoption VII., 838; 1033
REMAINDER,
only to a person in existence, 180
estate by way of , 1021
not to be governed by English law, 90, 90/
REMARRIAGE,
of widows in higher castes void by Hindu law, 391
of widows disallowed by Hindu law except under caste custom, 367ss,
394, 402, 421
valid amongst Sudras, 400
divests widow's estate, 554
in some castes on by widow, payment must be made to the family
and sometimes to the caste, 395/i
in some castes widow on has to give up all her first husband's
property except pritidatta, 394
does not prevent inheritance from son by first husband, 430
does not deprive her of her right to give in adoption, 892
offspring of a woman by formerly considered illegitimate, 368
son by now legitimate, 391
legalized by Act XV. of 1856, 343, 368, 369, 391, 402, 421, 426
a woman remarried without divorce deemed a concubine, 556
such a penal offence, ih.
See Adoption III., 892; Pat. Marriage; Widow
RENT AND PROFITS,
receipt of separately not conclusive of partition, 641, 717
division of is a recognized mode of partition, 641, 717, 754, 772
of a Vatandari village, 717
INDEX. 1235
EENUNCIATION,
by an elder brother gives estate to a younger, 427, 661fe
of adoption not allowed, 1017
of marriage on payment of a fine, 400
disallowed, 401
See Adoption VII. ; Kelinquishment
REPAETITION,
when may be claimed, 649, 763
not generally claimable, 759, 763
exceptions, 757
variation in value does not give a right to claim , 757
See Partition
EEPEESENTATION (= Declaration),
inducing change of position must be made good, 189, 1079
(for inheritance) by descendants, 62
sons and grandsons take by , 69
female not generally recognized, 414
rule as to not affected by residence abroad, 70
extent of , 327, 604, 622
law of extends to remote relations, 71
failure of three intermediate links bars the right of , 70, 327
can be claimed up to seventh degree, 70
said not to extend to collaterals, 430, 431
grandsons take by when mother dies between death of grandfather
and actual partition, 104
nature of this succession discussed, 656w
limits of by descendants, 606
not recognized in heirship to a deceased brother, 104
of family by father, 653
See Father
exception under circumstances in favour of infant sons, 65Sy
of family by father as defendant, 575m
of father by adopted son in partition, 835a
See Adoption VII. ; Family ; Manager ; Possession
of joint family in suits, 573
See Suit, 1037
representative character ascribed to father or coparcener sued, 570, Bliss,
585, 591
in other cases denied, 58355
See Suit
EEPUDIATION. See Wife, 556tc
EEPUGNANT PROVISIONS,
void, 621, 661, 664
EESEEVE. See Adoption VI., 978, 979, 985; VII., 1020
12B6 INDEX.
EES SACRiE, 185
See Sacra; Property, Sacred
RES JUDICATA,
binds the same parties, though a different portion of the property was
the object of the former suit, 1082
binds when the decision bore on the same jural relation, 1083a;
instance of maintained, though erroneous, 665e
See Adoption VIII., 1082
RESIDENCE,
as affecting the law to which subject, 3
abroad does not affect representation, 70
daughter entitled to , 64
of the widow should be in the family dwelling, 64, 75, 245,247, 673, 751, 775
enforced by caste laws as a condition of maintenance, 249p
in husband's family a duty not now enforced, 248, 251
widow cannot be deprived of her right by a sale, 75, 245, 328, 673
comparison of custom of London, 675n
widow's occupation is notice of the right, 752d
purchaser with notice of widow's right to bound 245
separate when allowed, 249
See Adoption VI. 992; VII. 1026, 1038; Maintenance; Widow
RESIDUE, UNDIVIDED,
succession to how regulated, 648
RESIGNATION. See Relinquishment; Renunciation
RESPONSES
importance of of law officers, 3
See Adoption I., 785; V., 949
RESTRICTION. See Transfer, 6646
RESUMPTION,
of grants by native rulers, 378
of land by Government gives right to a parcener, deprived of it, to claim
contribution from others, 764
RETROSPECTIVE EFFECT OF ADOPTION, 350, 878, 887ss, 101355, 1034
REUNION
with whom possible, 129, 133, 602
how effected, 129
effect of , tb.
original status restored, 132
according to the Viramitrodaya, 133
See Family
INDEX. 1237
EEUNITED COPAKCENEK
succession to , 129
reunited coparceners when succeed, 130
sons take their father's estate, 129, 130
in preference to sons still separate, ih.
See Inheritance; Reunion, 129
REUNITED FAMILY. See Family, Reunited
REVERSIONER (= Expectant Heir),
has no vested interest during widow's life, 83, 811
cannot generally obtain a declaration of his title during widow's life,
89, 371
but may in case of an attempted alienation.*
may protect the estate against improper alienation or waste, 90
cannot question alienation in which he concurred, 710/
what can sue the widow, 90
when bound by a decree against the widow, 89d
interest of is not liable to attachment and sale, 91, 1902;, 299
REVOCATION. See Adoption VI. 960; Gift
RIGHTS,
beyond the pale of religious connexion not recognized by ancient laws, 49b
creation of only in favour of a person in existence, 185
of widows restricted in Bengal, 953
of maintenance cannot be assigned by a widow, 191, 246, 250, 253, 288
proprietary acquired by occupancy, 361
restoration of conjugal when refused, 85p
See Birth ; Inheritance ; Property ; Wife
RITES AND CEREMONIES OF ADOPTION. See Adoption VI. passim
RIVAL WIFE. See Wife
ROADS
common when indivisible, 671
may be used by all coparceners, 716
ROTATION
proceeds of hereditary office to be enjoyed by , 716, 743
an inam village, indivisible, may be enjoyed by , 754
property dedicated to family idol to be enjoyed by , 755
places of worship and sacrifices are indivisible and to be enjoyed by ,
716, 743
ROTURIERS, 74t
* See lari Dutt Koer v. Musst. Hanshutti Koerain, L R. 10 I. A. 150
1238 INDEX.
SACEEDOTAL PEIVILEGES, 520r
SACEA, 56, 165o
privata, 165o, 185o
follow the inheritance, 816
connexion of with inheritance, 62y, &89z, 957
rights of property connected with , 957, 959, 973, 975, 988, 1011,
1052, 1058
devolve on the person who takes the estate, 839
perpetuation of the , 880, 883, 884
Sudras have no in the higher sense, 923
change of in adoption, 910, 1033
non-performance of does not deprive the heir of his estate, 816
See Adoption III., 879, 880, 883, 884; IV. 923; VII., 1011, 1046
SACEAMENTS
treated of, 20, 24
to be performed in adoptive father's family, 939
See Adoption ; Marriage, 942 ; Property, Sacred ; Samskaras
SACEED WEITINGS. See Interpretation
SACEIFICE,
performance of taught, 31
motive for , 84, 791
expensive s may be performed by one member only with the assent
of others, 664
See Assent
separate performance of a sign of partition, 637, 672fe
sacrifices forbidden to the Sudras, 824
except vicarious, ib.
former prevalence of animal , 791e, 811a;
Sarnta ,820
Eoman domestic s, 638*
See Adoption IV. , 939 ; VII. passim
SADEISAM
= likeness, suitableness, 937
See Adoption II. 830
SAGOTEA. See Adoption IV., 943; VI., 999
SAGOTEA SAPINDA. See Sapindas
SAHODHA SON, 805
SAKHA
a version of the Veda, 31
SAKULYA. See Sapinda, Gotraja
defined, 464
INDEX. 1239
SALE
of patrimony once disallowed, 195
arose through gifts, ih.
formerly had to take the shape of gift, 191, 196
delivery and acceptance necessary for a , 191
of land still unrecognized in some districts, 673
consent of townsmen or co-mirasdars formerly required, ib.
of family lands not a process of Hindu Law for enforcing payment of
debts, 602
made for common liability causes a deduction from common property, 618
of a son in extreme need. See Adoption, 960, 951
and gift of a child forbidden by Apastamba, 792n
of children recognized amongst the Komans, 805/c
of expectant interest of doubtful validity, 1902;
in execution of a father's interest does not pass son's, 592e
of a single co-parcener's interest extends to it only, 652
effect given to by partition, 615, 653
purchaser at a Court can only seek for partition, 652iy
acquires only the judgment debtor's right to claim a severance of
his share,* 615
See Adoption VIL, 1036; Alienation; Coparcener; Father;
Purchaser; Widow
SALE IN EXECUTION,
rights of enjoyment of otherwise indivisible property (e.g., well or tank)
are transferrable in execution, 757
SALIC LAW,
compared with Hindu law, 82w, 422x
SALVATION
may be attained by asceticism, 814a
See Adoption IL, 789, 791, 811, 812, 825, 957, 975; Ascetic
SALVEE CASTE, 689y
SAMANAGOTEA,
the same as gotraja, 120
means belonging to the same family, ih.
SAMANODAKAS,
who are , 122, 123
meaning of , 123
gotraja, when succeed, ih., 455
cease with the fourteenth degree, ih., ih.
not mentioned in the Mitakshara as heirs to a woman's property, 603
* Bahoo Hurdey Narain Sahu v. Bahoo Rooder Perkash Mitter, L. R. U.
A. 26.
1240 INDEX.
SAMBANDHA, 48
SAMSARA
= moral and ceremonial duties, 600t
SAMSKARA *
= the initiatory rites (Manu. II., 26s5, 39, 67, 169, 170), 519
neglected by Gosavis, ib.
Munja or Upanayana (Manu. II., 169)
See Initiation
performance of as affecting status, 8385
adoption. See Adoption II., 838s, 1012; VII., 1022, 1027; Cere-
monies ; Initiation ; Marriage
SAMSKARAKAUSTUBHA,
of Anantadeva, 24, 781
See separate List of Hindu Authorities
SAMSRISHTI,
succession to a , 129
SAMVARTA SMRITI, 43
SANCTION
of grantor deemed necessary to adoption of an heir to the holding of
grantee, 836n
See Adoption III., 853, 854, 856, 859, 868, 880, 882
SANKARA,
was the father of Nilakantha, 21
author of Dvaitanimaya, ib.
SANKARACHARYA, 518
SANNYASI, 56, 61
who may become s, 518h
Sudras and women cannot become s, 519
duties of a , ib.
succession to a , 133, 467
custom governs succession to s, 520
See Adoption III., 850; Ascetic, bliss
SANTHALS. See under Tribes, 270
SAPINDA— S
described, 112
who are s, 113, 114
* An account of the Samskaras now practised will be found in R. S. V. N.
Mandlik's Vyav. May. Introd. pp. xxx. ss.
INDEX. 1241
SAPmBA—S— continued.
interpretation of acxjording to Balambhatta, 119
relationship based on descent from common ancestor, 112
not on presentation of funeral oblations, 113
in the case of females on marriage with descendants of a common
ancestor, ib.
when ceases, 113, 509g
bhinnagotra same as bandhu, 123
who are bhinnagotra s, 126
paternal aunt pronounced not a gotraja but a bandhu? 122p
contra, 122
relationship through females restricted to four degrees, 127
Sapindas of the husband when inherit, 141, 487
of the widow when inherit, 141
gotraja 43555
who are s, 484
Kamalakara's rule of determining nearness of s, 485
sagotra s of the husband when succeed to the widow, 487
bhinnagotra s when succeed to the widow, 503
of the widow, inherit to her, 505
sagotra s of widow, succession of, 508
See Adoption VI., 991
bhinnagotra , 512
duty of as to adoption, 783, 796k, 871g
son of preferred for adoption, 800, 924
See Adoption III., 872, 89455; VI., 987; VII., 1051; Kinsmen
SAPINDA'S SUCCESSION, 450, 451
See Gotraja Sapinda
SABRATIBANDHA DAYA SUCCESSION. See Succession, Obstructed
S ARAN J AM,
is usually impartible, 174, 681, 6832!
holder of a can make a grant for his own life, 6646
is attended with an obligation to maintain the younger members, 681
pension substituted for has the same legal character, ib.
succession to a is according to primogeniture, 683^
grant to a lady out of resumable after death of grantor, 697
SARANJAMDAR,
consent of Government thought necessary to choice by in adoption, 962
SAROGEES. See Adoption III., 890; IV., 919
SASTRIS, 3
importance of their opinions, 785
reason of some inconsistencies in their answers, 401, 185g
SATATAPA (VRIDDHA) SMRITI, 46
1242 INDEX.
SAUDAYIKA,
woman's control over absolute, 86, 258
limited by the Smriti Chandrika, 285
SAVINGS,
out of part of zamindari allotted to a junior member are not joint
property, 153
made by a widow. See Widow, 299
of a widow out of the estate inherited from her husband are accretions
to it unless distinctly appropriated otherwise, 299, 300, 301
out of allotments to juniors not joint property, 682
See Accumulations ; Stridhana
SAXON LAW,
as to pious gifts compared with Hindu law, 191?i
SCHOOLS,
ancient, origin of , 31
Brahminical, origin of intellectual life in India, 48
of Hindu law, 12—54
SCIENCE. See Gains, 667; Partition
SEBAITS. See Mahant; Property D. II.; Suit
SECOND ADOPTION. See Adoption III., 843
SECTAEIANS,
fabrications of , 48
SECURITIES,
created by father binds sons unless of a profligate character, 73
SEISIN,
once essential to gift of land under English law, 214ty
See Possession
SELF-ACQUIRED
= in any way acquired except by succession, descent and participatioD
of right, 658
SELF- ACQUIRED PROPERTY,
as between father and son, 664
between coparceners generally, 666
See Property, Separate and Self- Acquired
SELF-GIVEN. See Adoption II. and III.
SENIORITY,
in origin postponed to nearness in blood, 66
by birth gives superiority of right, 74, 75
INDEX. 1243
SENIORITY— contmwed .
where property is impartible, 78
See Eldership, 676; Primogeniture
SEPARATE PROPERTY, ISss, GQiss
See Property, Separate and Self-acquired
SEPARATED HOUSEHOLDER,
becomes the origin of a new line of succession, 73
free to dispose of ancestral estate in the absence of sons, ih.
heirs to a , 74
See Father ; Inheritance ; Partition ; Property ; Separation ;
Son
SEPARATION,
defined, 608
how effected, ib.
signs of , 411, 636, 637, 644
cannot be prevented by creditors, 609
times of , ih.
may be made at any time on terms agreed to, 611
at the will of a son, 609
of the father from his father and brothers does not involve of the
father and his son, 338
sons born after preferred to sons separated as heirs to their parents'
share, 64, 338
does not deprive a son of inheritance, 340
See Adoption VII. , 1032 ; Commensality ; Evidence ; Partition ;
Sacrifice; Son, 709
SERVICE-LAND
aliened or divided freed from special rule of descent, 683
SERVICES, RELIGIOUS
secure future beatitude, 967
SETTLEMENT
of land made with holder binds owner, 665
See Widow, 1078
SET OFF
of barred debts against claimants on a fund, 672Z
SEX. See Female
SEXUAL ASSOCIATIONS
in the lower castes, 357, 394ss
in ancient times, 794, 796
1244 INDEX.
SHAEE ALLOTTED TO FEMALES,
nature of the property, 712, 715
See Adoption VII. ; Daughter ; Father ; Mother ; Partition ;
Sister ; Stridhana ; Widow
SHISHYA, 525
SIMPI (TAILOR) CASTE. See Caste, 483, 1003
SIPUJ, 534
SIRPAVA. See Allowances
SISSEE ABORS. See Tribes, 276
SISTER
entitled to maintenance, 227, 241, 412, 690
sister's provision in undivided family extends to a quarter share, 333
See Below
sister's maintenance and marriage a charge on brother's estate, 714a
indigent widowed s entitled to provision in some castes, 691e, 692n
to provision from brother's widows, 692
is a gotraja, 121
not so according to Smriti Chandrika, 442
in Gujarat is first of the gotraja sapindas, 107, 109
in Madras regarded as a bandhu, but postponed to sister's son, 463it?
sister's succession, 435, 463t/;
perhaps a trace of female gentileship, 399n
position of full , 435
competent to inherit in Western India, 118d
exclusion of by custom, 435
her right admitted by Balambhatta, 121n
is analogous to that of brothers, ib.
sister's take equally, 436
succeeds before remote kinsmen, 430, 436
preferred to a paternal first cousin, 436
in Bombay and Gujarat precedes half-brother, 104, 430, 436, 437, 439
placed next to the grandmother by Nilakantha, 108, 109
postponed to gotraja sapindas by Vijnanesvara, 107, 108
ex. gr. to the widow of the paternal uncle, 121, 122
sister's succession to a sister, 471
half preferred to step-mother, 440
See Half- Sister, 436
in some passages allowed an equal share with brothers, 627d
takes absolutely by inheritance, 282, 313
property inherited by is Stridhana (in Bombay), 436
is entitled on partition to a share equal to one-fourth of a brother's, 412,
714
sister's share in a partition is her absolute property, 714
is only a marriage portion? (Smriti Chandrika), 288
INDEX. 1245
contra the Viramitrodaya, ih.
sister's Sulka inherited by her full brothers, 266ss, 311
See Adoption IV., 921; VII., 963, 969
SISTEK'S DAUGHTER
sister's daughter's right of inheritance admitted by Balambhatta, 121m
succeeds to a woman, 613
postponed to sister's son, 463
pronounced not an heir, 446
SISTER'S DAUGHTER'S SON
his succession admitted in Bengal, 466
but questionable, ib.
SISTER'S GRANDSON, 467
SISTER'S SON
is a bandhu, 462, 463
has no right so long as a sister survives, 463
sister's sons take before sister's daughters, ih.
postponed to sister-in-law, 121
cousin's son, 331
fifth descendant from grandfather, 464
as successor preferred to paternal aunt's son, ib.
maternal , ih.
succeeds to his maternal aunt, 512
• heir to his uncle amongst aboriginal tribes, &01k
See Adoption IV., 918, 919, 921, 924, 944; Bandhu; Sapinda;
SuDRA, 924; Vaisyas, 924
SISTER-IN-LAW
preferred to sister's son and to a male cousin, 121
son of wife's sister may be adopted. See Adoption IV., 942
SMRITIS, 12, 16, 25—60
natural at a particular period of development, 50
enumerated, 27
classification of , 30, 38, 46
are versions not forgeries, 45
come nearer than the Vedas to modern practice, 784
interpretation of , 48, 781t
governed by the Mimamsa, 605
See Interpretation
are not codes but manuals, 48, 50
are above reasoning, 787
rules contained in the , 238, 234, 235
could not be repealed, 795g
rest on a religious not a utilitarian basis, 49b
deemed superior to usage, 787a
not entirely consistent, 814a
1246 • INDEX.
SMBJTIS— continued.
when they conflict, Equity decides, 13
form one body, 16, 781c
are supplementary to each other, 16, 49
have frequently been altered, 29
contain much that is given in the Dharmasutras, 40
which are redactions of Dharmasastras, 45
hardly applicable to marriage relations of the lower castes, 401
or to adoption amongst these classes
See Adoption II.; IV.; V., 941, 948, 953; VII.
SOCAGE,
law of , 74t, 734o
SODA CHITI. See Divorce
SODAKA,
same as Samanodaka, 123
SLAVE
under the old law incapable of property, 262, 275, 324
SLAVEKY
abolished by Act V. of 1843, 483
kinds of , 45
See Adoption II. ; VII.
SMRITI CHANDRIKA. See Separate List of Hindu Authorities
SON,
importance of a , 789, 790t, 810, 811
guardianship of a during minority, 964s
See Age; Guardian; Minor
continuator of family sacra, 657
procreation of a son an imperative duty, 812/i, 812
substituted indispensable failing one begotten, 780
a single adoption discharges the sacred debt, 1012
takes the place of a father disqualified or retired, 610o
born in wedlock is legitimate though begotten before it, 324
includes son's son's son, 64
entitled in extreme need to maintenance, 258, 1090
even in preference to fulfilment of promise, 1090
status of necessarily unconditional, 959
not transferrible like a chattel, 833, 951, 952g
can be disinherited only for adequate reasons, 549, 551, 739, 790
but then could be replaced, 790t
begotten son not to be replaced according to some passages, 793tJ
identified with father for all lawful obligations, 162
son's liability to pay father's debts. See Debts, 75, 161, 164, 165, 550,
568, 596, 685/, 686, 1088
limited by caste laws, 686^, i
INDEX. 1247
SON — continued.
separated not liable unless he inherits property, 165
sons liable to pay with interest, grandsons without, 1089
is represented by his father in a suit, 574
is bound by a compromise made bond fide by his father, ib.
becomes head of family on father's incapacity or retirement, 610©
sons and father are joint owners in ancestral estate, 73, 371, 649, 657,
665
and in property acquired by father, 665, 666
co-ownership arises only on actual birth, 731
or adoption. See Adoption VII.
cannot contest prior alienations by father, 731, 740
son's ownership, according to Day a Bhaga, arises only on the death of
their father, 559a
not deprived of a real right by a transfer, 7
See Transfer
may prevent improper alienation of ancestral property by the father, 193a,
594, 737
See Interdiction
cannot generally charge property during father's life, 241
share of the how far liable in execution against the father, 576ss
sons take by representation, 61
but not brother's sons (see below), 103
takes impartible estate as " purchaser," 162
sons succeed to an Avibhakta Grrihastha, 61, 323
sons and grandsons take solely the self-acquisitions of the father and
grandfather, 324
sons succeed to a separated person, 73, 338
separated is preferred to father's widow, 340, 341, 722
sons may claim partition of ancestral property? 173, 609, 611, 617, 726,
727, 733
many exceptions to this by caste law, 6II55
cannot contest a partition made before his birth, 1078
sons cannot obtain partition in Bengal, 163
sons cannot demand partition with grandfather against father's will,
6456, 726
cannot enforce partition of father's self-acquired property, 741
allowed to sue to establish his right in a share inherited from his uncle
by his father, 633
predeceased (childless) ; his interests merge in his father's, 169, 324, 670t,
882
may relinquish his share and become separate, 324, 722
does not thus lose his right of succession, 340, 722, 723
sons not reunited postponed to reunited, 129, 130
separated s postponed to s united or born after separation, 64,
324, 338, 347, 709, 722, 731
importance of eldest , 819
elder by younger wife preferred to a younger by an elder wife
(generally), 324
See Eldership
1248 INDEX.
SON — continued.
succeeds to his mother, 479
when 8 inherit to their mother, 140
sons take unobstructed inheritance according to Vyav. May., 103, 285, 65&
See Mother
sons succeed to mother's self-acquired property (Bengal), 308m
sons are not co-sharers with mother (Srariti Chandrika), 100
sons are coparceners by birth, 61, 212/i
sons take equally, 74, 314, 344
Sudra's s legitimate and illegitimate inherit inter se as brothers, 264
sons cannot be separated inter se against their will, 193, 617
sons of brothers of the full blood inherit, 106
half-blood inherit, ib.
when s of brothers of the inherit with brothers, ih.
sons of half-brothers are sapindas according to the Vyav. May., 106
sons of deceased brothers represent their fathers in partition and
succession to ancestors, 327, 753
sons take the place of adoptive father, 76
See Adoption VII.
illegitimate s, not affected by their mother's connexion with other
men than their father, 366
sons in the religious sense not possible to a Sudra, 365
illegitimate s of a Sudra inherit, 69, 76, 77, 355, 357, 421
get half-a-share if legitimate descendants are living, 360, 362
illegitimate of a Sudra preferred to a widow and daughter, 358
sons born in sin entitled to maintenance only, 78, 368, 401
sons of a concubine are inter se brothers of the whole blood, 78
and inherit inter se as brothers, 364
illegitimate s of a European could not form a true joint family, 4
illegitimate s of higher castes can claim maintenance only, 77, 164,
355, 358
Subsidiary Sons
twelve kinds of subsidiary s, 805
relative places assigned to the different kinds of s, 803, 804
division of sons into kinsmen-heirs, and kinsmen-not heirs, 803
subsidiary s of each class exclude those lower in the scale, 365
sons of uncertain origin excluded from succession, 807a;
adopted sons succeed on failure of legitimate issue of the body, 67, 76, 347
See Adoption passim ; Debt ; Father ; Gift ; Illegitimate ; Out-
caste; Primogeniture
SON'S DAUGHTER
postponed to daughter-in-law? 495
SON, POSTHUMOUS
inherits, 129, 769
partition re-opened by birth of , 649, 769
SON'S SON
son's son's succession to grandmother failing sons, 479
INDEX. 1249
SON'S SON'S SON'S SON
inherits as a gotraja, 607
SON'S WIDOW
postponed to brother, 427
SON-IN-LAW
in some tribes taken into the family of a sonless man, 398/i
afi&liation of , 1065
admitted in some Narvadari villages as successor to a proprietor*
See Ghar-Jawahi; Illatam, 398/i
SONAR. See under Caste, 473
SONIS. See under Caste,
SOURCES. See Hindu Law, 9, 946
SPARTAN LAW
comparison of with Hindu law, 276m
SPIRITUAL RELATIONS, 126
See Ascetic
SRADDHA f , 59
described, 1012o
importance of , 62
separate performance of is a sign of partition, 637
wife's share in s, 87
Jains have no s, 811
forbidden to Sudras, 825n, 832i/
Sraddhas may be performed by all castes by custom, 825n
subordinate character of a celebrated for mother and her ancestors,
946m), 1027
in case of nephew adopted, 1023
by adopted son in default of original heirs, 1024
repetition of s a supposed ground fro repeated adoptions, 1027g
See Adoption II. ; Dharma-Putra ; Property, 69 ; Sacra
SRAUTA SACRIFICE, 8206
SRAVAKS,
(Jains), 533, 534
SROTRIYAM GRANT
is separate property, 667o
descendible to grantee's sons only, ih.
*Bo. Gov. Rec. No. 114, p. 134.
f For the Sraddhas in actual use see R. S. V. N. Mandlik's Vyav. May.
Introd. pp. XXX vi. ss.
H.L. 79
1250 INDEX.
SROTEIYAS
= learned Brahmanas, 128
SRUTIS
are fountain heads of law, 50
contents of , ib.
are above reasoning, 787
STATE
the source or sanction of private property, 179, 186
succession of to property, 94, 129
See Escheat ; King ; Propeety A. ; D. II. y.
STATUS
law of personal dependent on religion, 4
of son cannot be made subject to contingencies, 959
See Adoption VII., 1010, 1019
STATUTES. See Separate List
STATUTE OF LIMITATION
bars suit for partition after long separate holding, 641
when operates by prescription, 644, 648
effect of in a suit for partition, 753
See Limitation; Prescription
STATUTE LAW
supersedes Hindu law in contracts, 7
STEP-BROTHEB. See Half-Brother's Son, 511
STEP-BROTHER'S SON. See Half-Brother's Son, 511
See Brother, 510
STEP-DAUGHTER. See Daughter, 502
step-daughter's succession, 485
step-daughter's son heir to a widow, 491
STEP-GRANDMOTHER, 712
STEP-MOTHER
not included in the term " mother," 102
step-mother's right to maintenance or an allotment, 443y, 605t;
and to residence, 341, 7096, 751
maintenance of a duty of step son as well as of her own sod, 228,
629, 1039
step-mother's allotment, 712to
her right to inherit, 442
excluded by Strange, ib.
admitted by Balambhatta, ib.
INDEX. 1251
STEP-MOTHER— confmucd.
stands next to paternal grandmother according to Mitakshara, 443
postponed to half-sister, 441
daughter, 409
grandmother, 442
regarded as successor to step-son and his widow, 490
adoptive. See Adoption VII., 1039
her step-son may inherit her stridhana, 443, 1040
step-mothers though sonless are entitled to equal shares on partition, 443,
746
this questioned by Viramitrodaya, ib.
doctrine of the Vyavahara Mayukha, 442
STEP-SISTER. See Sister; Half-Sister
step-sister's son is excluded by sister's son, 463
STEP-SON
not entitled to succeed to his step-father, 480
succeeds to his step-mother, 442, 488, 1040
as heir to step-mother postponed to husband, 489
STIPULATION
by adoptive parents for annuity for giving their son, illegal, 961
STRANGERS
to agreements or awards cannot use admissions in them, 189n
cannot be intruded into sacred offices, 185o
STRIDHANA,
Different Conceptions of , 257 ss
different senses of , 257, 25855
Vijnanesvara's definition, 258, 301, 315
Nilakantha's definition, 258, 259
growth of woman's right to , 26355
enumeration of , 258
enumeration of Manu not exhaustive, 137
the Sarasvati Vilasa on , 317
Apararka on , 712m?
Nilakantha's classification into Paribhashika and other kinds, 134, 135,
258, 485
according to Mitakshara, 135, 138
no distinction between Paribhashika and other kinds, 135
has no technical meaning, 136
includes every kind of acquisition by a woman, 308, 313
recognition of every kind of acquisition by women by the Court in Madras.
SUw
in Bengal, 315
but restricted by decisions so as to exclude property inherited from a male,
as well as from a female, 31455, 319, 320
1252 INDEX.
QTKIDB.AN A— continued.
the female now takes but a life estate? the law in Bombay and Mithila,
289, 319, 320
See Daughter; Female; Sister, 422, 424, 486
distinction drawn between females born and those married in the family,
302/, 312, 313, 320
correctness of this discussed, 320, 321
in Bengal property inherited by a daughter from her father is not ,
Mithila, 288, 288/
nor is the share taken by a mother in a partition as representative of a
deceased son, 288
See Mother
immoveable property bought by a widow out of savings from her main-
tenance is her , 299, 300, 475
if she indicates her intention of so holding it, 299, 299r, 300
so is property bought from a fund bequeathed by her husband, 300
mode of acquiring , 278
according to Mitakshara, 258, 301, 315
gifts from parents, 278, 481
husband, 279, 293, 296, 313, 324
ornaments given for ordinary wear are , 295
immoveable property given by the husband is , 296, 297, 309t
subject to restrictions on disposal, 710/, 984
a husband separate in estate can give or devise to his wife with absolute
ownership, 984
gifts from sons, brother, and others, 281, 282
by inheritance, 137, 138, 139, 261, 263, 281, 311, 317, 709, 712
property inherited by a widow from her husband is ? 313, 436
includes inheritance from second husband, 480
according to the Privy Council property inherited by a woman from a male
or a female, except in Bombay and Mithila, is not and is
not transmissible as her own, 138, 313, 320
proof that according to the Mit. inherited property is from the case
of brother's succession, 263a:, 308, c/318
from the treatment of the subject by the Vyav. May., 135, 138, 263rc
the principal commentators adopt this doctrine, 316
Mit. followed by Viv. Chint. and Saras. Vil., 263, 316, 317
doctrine recognized as that of the Mit. by the Viram., Daya Bhaga, and
Smr. Chan., 138, 2632
wife's share in a partition is , 290t5, 294, 709, 713, 750. cf 709d
and a widow's share, 290!?, 294
a mother's share is , 287 w), 311, 712t^, 714^, 714
so is a sister's share, 283i, 312, 318, 709
and a daughter's, 283t, 284
marriage gifts are wife's , 271
Adhivedanika, 269, 277
Adhyagnika, 277
Adhyavahana, ih.
Anvadheyika, 135, 277, 486
Pritidatta, ih., ih., ih.
INDEX. 1253
^TBIDHAN A— continued.
Saudayika, 258
Sulka, 277
Yautaka, 485
nature of the woman's estate (see above)
gifts to a wife from strangers belong to husband? 281, 282, 285. cf 286p
mother does not take absolutely, 312, 313, 1036
but daughter and sister do, 261, 288, 289, 312, 313, 316, 320, 333
exception in Madras, 288
Bengal, 314, 316
Allahabad, 318, 319
80 a maternal great-niece, 312m
mother's property in Yajn. = Stridhana in Mit., 309n
wife's power to alienate controlled by husband, 86
her power of disposal over gifts, bequests, and heritage, 288, 709d, 710/
her power over (Saudayikam) unfettered except as to immoveables,
86, 284, 285
according to the chief native authorities, 283 — 285
over generally except immoveables taken from her husband, 285, 286,
289
widow's estate not a trust nor an estate for life, 297, 398
she represents the inheritance, 398
widow's share in partition at her absolute disposal? 288, 289, 290u, 295
authorities discussed, 713x, 714
daughter has full power over devolved from her mother (Bombay),
288
and over her allotment in a partition, 284, 295
or a gift from father, 295
testamentary power as to commensurate with the right of disposal
during life, 294
husband may dispose of wife's in distress, 283
may take in cases of wife's flagrant misconduct (Viram.), 283i;
Succession to
the subject discussed, 137, 31155
in Bombay, S18ss
property inherited by a sister from her brother is and goes to her
daughters, 436
descends to daughters unprovided for, 477
heirs to the different classes of , 135, 295, 309, 486
Anvadhey a , 135
Paribhashika, ih.
Pritidatta, ih.
Sulka, 139
Yautaka, 309
succession to according to Sri-Krishna and Vijnanesvara, 307, 308
484
according to Bengal law, 309, 481
Jagannatha, 309
immoveable property given by husband descends as , 309t
if an absolute estate has been given, 293, 297c, 983
1254 INDEX.
STBIDB-AN A— continued.
so as to all inheritance save from husband, 313. Cf 314
contrary decisions, 138, 319, 421, 422
rule of succession to a male applied, 135, 138, 496
husband's sister preferred to liis cousin, 503
husband's sister's son wrongly preferred to his cousin, 498, 501
widow's sapindas inherit after husband's, 505
See Adoption VII., 1034, 1038; Daughter; Ejectment, 287aj;
Female; Inheritance; Mother; Sapinda; Sister; Step-
mother ; Succession ; Widow ; Wife ; Woman
STUDENT. See Fellow- Student, 128; Pupil, 468
to become a householder after instruction in the Veda (Manu. III. 2 — 4),
7901/
See Grihastha
STUDY
of Vedas and of Manu. prohibited to Sudras (Manu. II. 16), 824
SUBODHINI,
a commentary by Visvesvarabhatta, 18
SUBSIDIARY SON. See Adoption ; Kshetraja ; Putrika Putra ; Son
SUBSTITUTION
under Eoman law, 303Z
SUCCESSION
depends on status, 4, 5
See Custom; Hindu Law; Lex Loci, 4
mode of determining in litigation, 5
regulation of according to the performance of funeral oblations
peculiar to Bengal, 59
division cf , 60, 61
to an Avibhakta Grihastha, 61
joint and undivided is the rule, 64
according to the Viramitrodaya, 126
tribal , 128/, 672
special rules of , 150, 177
to a raj or principality, 152, 675
miras, 177
regulated according to propinquity, llOe
differently according to various authorities, ih.
as affected by forms of marriage, 504
collateral of adopted son, 350, 1035, 1040, 1046
on the death of a widow goes to her husband's heirs next to those
specified, 83
origin of of persons spiritually related, 60
not suspended for one not begotten or adopted, 63, 542, 545, 1050
of co-sharers impaired by adoption in a family, 949
iNDisx. ^255
SUCCESSION— conttwMed.
to impartible property governed by seniority, 65, 76
limited to a series of single heirs is not equivalent to primogeniture *, 65t
See Eldership; Primogeniture; Vatan
illegitimate son excluded from , 153
except of a Sudra, 69
See Illegitimate Son
line of prescribed by lav7 cannot be altered, 179r
unrecognized — disallowed,! 178
to an endowment determined by custom, 199
to bhagdari lands in Gujarat, 407
females in Maratha country not excluded from to inam property, ih.
See Female; Grant; Inam
through females only in some tribes, 274/
of parents, 421
on the death of mother who has inherited from son goes to his next heir,
ih.
to undivided residue, 648
to priestly offices and emoluments, 389, 407
See Adoption VII., 1027, 1031, 1038, 1039, 1040, 1046, 1050,
1051, 1052, 1056, 1061, 1064; Brother; Coparcener; Cus-
tom ; Endowment ; Family ; Female ; Inheritance ; Matha ;
Priest; Principality, 675, 676; Property; Kaj; Vatan
unobstructed, 60, 63, 129, 269
extends to three descendants in the male line, 61, 64
according to Mit. and Madanaparijata extends to grandsons only,
61, 63
rules of apply to reunited family, 129
See Family; Inheritance
SUCCESSION ACT (INDIAN) X. of 1865, 1083
See Separate List
governs Native Christians, 4
made applicable to wills of Hindus, 221
allows a remoter disposition than the Hindu law, ib.
See Wills
SUDKAS, 61, 69, 76, 77, 79, 80, 81, 82, 97, 129, 266, 323, 356, 367, 392, 408,
413, 417, 426, 471, 479, 494, 611, 519, 521, 529, 635, 537, 545, 563,
603, 708, 712, 769
See Adoption II., 800, 801, 823, 824, 831; III., 849, 857, 873, 874
are Grihasthas, 61r
excluded from duties and rights of the higher castes (Manu. I. 91; 11.
103), 823, 824, 831, 998
have not the higher sacra, 923
cannot become Sannyasis, 521
may become Gosavis, 519
*Achal Ram v. Udai Partah Addiya Dat Singh, L. R. 11 I. A. 51.
f Kumar Tarakeswar Roy v. Kumar Slioshi Shikhareswar, L. R. 10 I. A.
51.
1256 INDEX.
SVB'RAS— continued.
Vairagis, 637
forbidden to study the Vedas and to perform sacrifices, 61r, &B2y
ex. gr. the datta homa, 824
lecite mantras, ib.
their Sraddhas allowed, but defective, 790, 823, 825n, 832i/
union among not of a sacred character, 916
incapable of having a son in the religious sense, 365
can adopt sister's son, 924
daughter's son, ib.
their rules of adoption partly admitted into the Brahminical system, 922
begetting a son on a woman entails loss of caste but not mere inter-
course, 401t
See Adoption IV., 943, 944; V., 954; VII., 1044, 1045, and
passim ; Brother ; Caste ; Ceremonies ; Custom ; Daugh-
ter; Family; Illegitimate Son
SUIT,
mere against one coparcener does not affect others, 588
unless the coparcener is a representative, 574
See Joinder, 568; Parties; Eepresentation
representation of minor in a , 625
See Administration; Minor, 703; Next Friend
and sale for a co-sharer's debt pass his right to share, 580, 685
in a against a family all are to be made defendants, 691
exceptions, ib.
by or against the father alone. See Father
as affecting sons, 577ss, 581, 583, 585
should name sons or specify representative character, 582
a compromise by father suing held binding on sons, 571d
sale under decree against father as affecting sons, 578ss, 584
a nephew not bound, 683r
against a manager affects only his share, 591
against sons for father's debt, 587
adopted son representative for , 1037
by son against father, 633
for property as divided does not bar one for it as undivided, 565, 723
for partition, 698ss
to enforce partition deed not allowed to be changed into one for main-
tenance, 712w
for partition by coparcener conveys no right to his widow, 765
perhaps not even a decree? ib.
to a for partition by the purchaser of the father's right the mother
is a proper party *
for family idol, 716 w
by Sebaits, 160
adoption pending , 1033
See Adoption VIII. ; Attachment ; Charge ; Coparcener ; Debt ;
Decree; Family; Father; Guardian; Liability;
Manager ; Obligation ; Sale
* Hurdy Narain Sahu v. Rooder Perkash Misser, L. R. 11 I. A. 26.
INDEX. 1257
SUITS, POSSESSORY, 643
See Possession
SULKA, 259, 277
definition of , 266
kinds of , ib.
not the same as Morgengabe, 267
goes to uterine brothers, 266 — 269, 311, 486m
SUPERSTITIOUS USES,
English law of not enforced, 211
SURETYSHIP inter se by COPARCENERS
is a sign of partition but not conclusive, 636, 773
SURVIVOR. See Adoption, 887
SURVIVORSHIP,
rule of recognized, 71
alternative to that resting on recognized oblations, 72
no amongst daughters in Western India, 98
in united family, 428, 429
excludes an executor, 220
regulates succession in a reunited family, 132
See Adoption VII. , 1032 ; Beother ; Coparcener ; Daya ; Family ;
Inheritance; Property; Succession
SUTAK, 1022
SUTAR, 249p
SUTRAS, 31—60
are strings of rules, 32
Apastambha Sutra, 32, 33
Hiranyakesi Sutra, 32
characterized by their shortness, 41
SVAIRINI
= disloyal wife, 604, 797
18 one who deserts her husband and cohabits with another man, 368
son of occupied a place above adopted son, ib.
SVAMYA AND SVATANTRATA, 206
SVARJIT
= property acquired by one's self, 657
SVAYAMVARA, 271
1258 INDEX.
SVYAMDATTA SON,
meaning of , 805, 956
not now recognized, 807
See Adoption V., 949
SWATHIS,
a Himalayan tribe, 733g
SWEDEN,
right of free occupancy in ancient , 672k
TAILOE, 362, 483
TANKS,
when indivisible, 671
may be used by all coparceners by turn or agreement, 716, 757
TAPODHANA CASTE, 410
TAEWAD, ih.
TAULKIYA-AODICHYA CASTE, ib.
TEMPLE ALLOWANCES,
hereditary and divisible, 681
subject to special rules, ih.
See Adoption III., 945; Endowment; Nibandha
TEMPLE PEOPERTY, 520, 621
See Pekpetuity; Propeety D. II. a.
TEMPLE SERVANT,
interest of alienable, 716m
TENANT. See Lessee; Landlord
discharged by payment to one of several co-sharers, 5705
joint has not a devisable interest under English law, 618a;
covenant by one joint to sell severs the joint tenancy in equity, 651h
See Coparcener
rights of s after a partition, 661m
TENURE
rare under Hindu law, 174
of land supporting an office, 683
See Grant; Jagir ; Saranjam; Vatan
TESTAMENT. See Will
TESTAMENTARY POWER, 209, 1021s
depends on the state of the family and the nature of the property, 173
regulated by Hindu law, 618
INDEX. ' 1259
TESTAMENTARY POWER— continued.
not regulated by analogy to English law, 181
but to the Hindu law of gifts, 181 279
over self -acquired property absolute, 192, 214, 296, 618a;, 705, 734, 982
limitations to this? 982, 983
collateral heirs no bar to the exercise of the , 193
not to defeat other's rights, 214, 215
or claims to subsistence, 215, 982
or to make illegal dispositions, 215
as to Stridhana is commensurate with the right of disposal during life,
294^
See Adoption III., 866; VI., 982; Alienation; Coparcener;
Family; Gift; Maintenance; Son; Survivorship
TEUTONIC LAWS,
comparison of with Hindu law, 191n, 262to, 303Z
TEXTS. See Interpretation, 8
to be received cautiously, 784, 785
interpretation of influenced by philosophical systems, 8
sometimes manipulated to suit later notions, ih.
how construed, 197d, 267fe
THEODOSIAN CODE,
referred to, 399Z
THIYENS. See Tribes, 272, 397
TIME. See Adoption, 861, 871, 872
TIRTH-UPADYA,
Tirth-upadya's right partible by custom, 716m
TITHE. See Possession, 644
TODA GIRAS, 180
not exempt from attachment, 703x
TONSURE,
period of , 831
as affecting fitness for adoption. See Adoption II., 830; III., 891; IV.,
939, 941; VI., lOOlr; VII., 939
TOOLS AND IMPLEMENTS,
wKen indivisible and when not, 671, 674
to be kept by those having them, 717
TOTHIYARS. See Tribes, 396
TRADING inter se by COPARCENERS,
a sign of partition. See Evidence ; Partition
1260 INDEX.
TRADITIONS
as regards the Smritis, 26, 27
untrustworthy, 28
Brahminical, about the Dharmasutras, 36
an element of customary law, 787
TRANSACTION
of father how far binding on son, 571ff
as to admissions of an adoptive mother, 1042
See Coparcener ; Father ; Manager ; Obligation ; Representa-
tion ; Suit
TRANSFER
depends on individual will, 67
restrictions on inconsistent with estate disallowed, 193, 6646
of Saranjam not allowed, 664
different ceremonies for of immoveable and moveable property, 1065
irregular by father may be prevented by son, 738
or set aside, 740e
See Alienation; Gift; Grant; Interdict; Possession; Pro-
perty; Sale
TRAVANCORE. See Female Gentileship, 398; Polyandry, 272
TREASURE TROVE,
law of , 768
TRIBES,
Bhils, 269t
Bhooteah, 276m
Cacharis, 269t
Duflas, 276m
Garoo, 274/, 398
Gonds, 269t
Jats, 269t, AOOz
Kangra tribes, 368
Kathis, 269t
Khasias, 276m, 398
Kholls, 269t, 270m
Khonds, 357
Koches, 269i, 398
Maravers, 4062
Meeris, 276m
Motati Kapus (Madras), 1065c
Nairs or Nayars, 272w, 396a;, 398, 401e, 402g
Oraons, 269t
Pahans, ih.
Santhals, ih.
Sissee Abors, 276m
Talabda Kolis, 1056
INDEX. 1261
TRIBES— continued.
Thiyens, 272, 397^
Tothiyars, 396x
Vazirs, 397e
TRIORDHA DIKSHA
= consecration, 633
TRUST,
not unknown to Hindu law, 200
legislation affecting s amongst Hindus, 416h
instances of s, 200, 201
native usage determines whether a has been created, 202
may be annexed to gift, 416
to husband for wife, 200
for daughter, 201
not allowed to create a perpetuity for a family or an estate, 200Z
dissoluble only by assent of all interested, ib.
trusts uncertain and illegal ineffectual, 200, 201, 202 *
trusts how dealt with, 201, 202
charitable s enforced, 211/
enforcement of s, 201, 416
religious and charitable s common, 200
treated with special favour by Hindu law, 221
in favour of an idol, 160
heritable may be resigned by father to son, 519
not to be altered in constitution by majority, ih.
property transferred by a Mahant by a breach of can be recovered,
188h
beneficiaries may sue for the enforcement of the duties of , 377
subject to the consent of Advocate General or his substitute, ih.
See Endowment; Gift, 416; Grant; Property D. II.
TRUSTEE
of a religious endowment cannot alienate or encumber it except under
special circumstances, 621to
See Endowment
widow is not a for son to be adopted, 1069
but continuing a suit after adoption may be deemed a trustee, ih.
the possessor of land who has settled for assessment is for owner,
6646
UNCERTAINTY
vitiates a trust, 200
UNCHASTITY
makes a woman only temporarily impure, 798r
disqualifies mother from inheriting to son, 554
does not prevent inheriting from maternal grandmother, ih.
disqualifies daughter from inheriting, 149^
but not among Lingayats, 554
1262 INDEX.
UNCHASTITY— contintted.
disables a widow for inheriting from her husband or son, 553, 554
but subsequent does not divest a widow's estate, 83, 554
See Widow
prevents one widow getting her share from the other, 554
of widow opens daughter's right to inherit, ih.
causes forfeiture of the right to maintenance, 655
maintenance allowed resumable on ib.
UNCLE
as manager; presumption in favour of his transactions, 592
may be commissioned by sister to give nephew in adoption, 954
when succeeds to nephew, 334, 444, 445
paternal succeeds to niece, 511
maternal postponed to the widow of the paternal uncle, 121, 122
inherits as bandhu, 125, 126, 460
inherits as a bhinnagotra sapinda, 459
preferred to maternal aunt's son, 461
See Adoption II., 809; IV., 914; Nephew
UNCLE'S (PATERNAL) DAUGHTER'S SON
an heir according to Bengal law, 460n
UNCLE'S (PATERNAL) GRANDSON, 451
UNCLE'S SON, 444s5, 511
See Adoption IV., 921
UNCLE'S (MATERNAL) SON
is a bandhu, 462
succeeds to a woman, 512
UNCLE'S SON'S WIFE, 454
UNCLE'S (PATERNAL) WIDOW
her succession, 453, 454
different law of N. W. Provinces, 454
UNCLE'S WIFE. See Widow of Paternal Uncle
UNDIVIDED FAMILY. See Family
UNION, SPIRITUAL, 957
UNITY OF ESTATE
presumed in a united family, 670
See Family, Joint; Presumption
UNIVERSITAS, 162, 165, 209
UNMARRIED FEMALE. See Daughter; Female; Sister
INDEX. 1263
UNMAKEIED MAN
may adopt. See Adoption II., 814a, 822, 823; III., 842a;
UNMAKEIED SON. See Adoption IH., 880
UNOBSTRUCTED OWNERSHII
its character, 96, 317o
See Daya
of a son in his mother's estate asserted and denied, 285n, 711s5
UNOBSTRUCTED SUCCESSION. See Inheritance; Succession
UPADHI, 186
UPAKURVANA. See Brahmachari
UPANAYANA, 941, 943. See Adoption III., 809/i; IV.
meaning of rite, 939s, 997
no ceremony in many castes, 940
UPANISHADS, 49
USAGE
importance of , 2
tends to conform to received Scripture standards, 9, 401, 402, 785
governs inheritance, partition, and adoption, 7
is to be followed failing statute law, 7, 785
caste approved as to the members of families.*
gentu to govern succession and contracts of Gentus.f
See Adoption IV., 945; VI. 977, 985; Custom, 197
USANAS. See Inheritance, 262
Dharmasastra, 34
VADILKI. See Eldership, 676
VAGHEEE CASTE, 241p
VAIRAGIS. See Gosavis, 539
who are , 536
position and rights of with respect to temples, tb.
sometimes hold temple property like Mahants, ih.
may retain their property, 637
may marry, 539
VAISNAVAS
have forged some Smritis, 47
* St. 21 Geo. III. Ch. 70, Sec. 18.
f St. 21 Geo. III. Ch. 70, Sec. 17.
1264 INDEX.
VAISVADEVA
= food oblations placed in fire, 637, 764, 773
separate performance of may be a sign of partition, 637
but is not conclusive, 637, 773
VAISYAS
said to have disappeared, 825t
a class of Grihasthas, 61
may become Sannyasis, 618
can adopt sister's son, 924
See Adoption III., 849
VALOUE
gains of as separate property compared with peculium castrense, 667 o
VAMSA-PARAMPABA
= lineal succession not collateral, 345
VANAPRASTHA, 51&h, 527, 531
VANDI CASTE, 374
VANI CASTE, 389, 476, 490
VASISTHA DHARMASUTRA, 32, 41
has been recast, 33
See Adoption V., 946, 947, 949; VI., 994
VATAN
nature of , 175, 684, 768o
law relating to , 768, 768o
compared with a fief, 768o
succession to , 765, 6832
devolution of is governed by special law, 180
females can succeed to a , 326t
not presumably impartible, ih.
Desgat is partible, 377
of a Kulkarni, 336, 413, 456, 477
Desaigiri, 424
Yardi, 336
Zamindar's is divisible, 671e
Patilki, 365
Joshi, 456
once aliened or divided is freed from special rule of descent, 6832*
subject to statute, 180
profits of a vatandari village may be divided, 717
impartible does not become partible by disuae of services, 681
VATANDAB JOSHI. See Josm, 377
* Subject to Bombay Act III. of 1874 and other statutes.
INDEX. 1265
VATANDARS" ACT
(Bom. Act III. of 1874) see separate List of Acts
VATANDAR VILLAGE. See Distribution; X'atan
VATSA, 963
VAZIFA. See Allowances
VAZIRS. See Tribes, 397e
VEDAS
the fountain of intellectual life in India, 48
the remote fountain of law, 50
superior to custom, 785
the four , 50
each of the consists of Mantras and Brahmanas, ib.
antiquity of , 8396
of little importance as a direct source of modern law, 50
character of their different parts, ib.
not to be recited by the Sudras, 1003
nor by a boy uninitiated, 1088
VEHICLES
when indivisible and when not, 671, 674
to be kept by those having them, 717, 756
VERSION OF NARADA
discussed, 44, 45
VESTED INTEREST. See Adoption III , 87855, 886
VESTED REMAINDER. See Remainder, 90, 91
VIBHAKTA GRIHASTHA, 56, 61, 73—128, 338—467
VICE
as a ground of disinheritance, 149, 689y
VIDYADHYAYANA, 31
VIJNANESVARA, 17, 951
age of , 18
VINIYOGA
a disposal of widow by husband's family, 406, 691d
VIRAMITRODAYA
is a commentary by Mitramisra, 21
VIRA SAIVA, 633
H.L. 80
1266 INDEX.
VISHNU SMRITI, 33, 36
VIS VES VARA (BHATTA), 17
is the author of the Subodhini, 18
VOLITION
how far passes property, 7
VRITTI
meaning of , 671e, 681/, 759m;
is a family estate subject to inheritance and partition, 389
is heritable, 658a;
Yajamana , 327, 388
is partible, 377, 671e, 681/, 766, 767
Bhatt's is divisible, 671e
inalienable outside the family, 389
widow may alien — for necessary sustenance, 407
mortgaged sold in execution of a decree, 680
intruder into a is liable for damages, 389
each invasion of a is a fresh cause of action, 328o
whether the representative of a priestly family can sue his Yajamana, 389
widow may alien for necessary sustenance, 407
VYAHRITIS
= mystic formulas of sacrifice, 994
VYASA, 963
VYAVAHARA MAYUKHA
ranks above the Mitakshara in Gujarat, 13, 109
is the sixth Mayukha of Bhagavanta Bhaskara, 20
composed by Nilakantha, ib.
dedicated to king Bhagavantadeva, ib.
must in some places be explained by the Dvaitanirnaya, 21
WAT AN. See Vatan, 180
WAYS, COMMON
when indivisible, 671
may be used by all coparceners, 716, 756
WELFARE SPIRITUAL, 953. See Adoption, I., 789, 790; V.
WELLS
when indivisible, 671
may be used by all coparceners, 716, 756
use of as appendant to share of property, 756, 757
WHOLE BLOOD
limit of the preference of the over the half-blood, 116
INDEX. 1267
WIDOW
Position under the Religious Law
widow's moral unity with her husband, 84, 397
may perform the Kriya and Sraddha of her husband in the absence of son,
87, 789^
(patni) answerable for sacrifices to her husband's manes, 250
See below
life of a a prolongation of her husband's for determining the
successor to the estate, 83
regarded as part of the famalia of the deceased, 394
sale of by husband's family (Panjab), 403c
or by her father or brother, 399p
is the guardian of her minor adopted son, 353
See Adoption ; Guardian ; Minor
as manager for her son or his widow, 349, 350, 570, 1041
See Adoption VII. ; Manager ; Eatification
taking of by brother-in-law, 397ss
See Leviratb
Rights to Maintenance
entitled to maintenance in husband's family, 64, 73, 75, 163, 191, 228, 329,
338, 341, 606w, 690, 691, 775, 776
widow's right an inchoate right realized on partition, 191, 237
in united family entitled to maintenance, 237
widow's right not dependent on ancestral estate, 241
so under caste laws, ih.
whether the right is a charge on the estate, 75
not strictly an interest in the estate, 246, 250, 251
not impaired by her possession of jewels, 692m
cannot be deprived of this right by agreement with her husband, 75, 191
cannot release or resign her right, 75, 191, 246
cannot be deprived of her right by alienation, 372, 392
nor deal with it by anticipation, 191, 246
but may deal with specific allotment, 246
or charge decreed? 247
maintenance of by adopted son, 1011
daughter-in-law, ib.
not entitled against members separated from her husband or without
ancestral estate, 230
of separate Hindu once thought entitled to maintenance by his family, 229
this decision disapproved, 230, 237
of reunited coparcener must be maintained, 133
arrears of maintenance may be awarded or not, 253
must be supported by brothers failing husband's family, 690c
widow's right cannot be attached, 252
but arrears awarded can, 253
limitation to suit for maintenance, 250
purchase with notice of her right, 75
maintenance of commutable to a share, 237
but claimable in every case, 238, 239, 245
80*
1268 INDEX.
WIDOW— continued.
duty to maintain avoided in some castes by giving licence to
remarry, 396^
husband's debts have preference over her right, 250
the Sastris make the right depend on residence in the family, 248, 250
693, 713
so the Vyav. Mayukha and Viramitroday a , 247, 249
so do the caste lav^s, 249p
but separate maintenance may be claimed, 251, 252
only on refusal or failure by the family? 250
decision of the Judicial Committee that it may, 249
High Court, Bombay, 693
the right to an allotment in strictness limited to the patni, 250
cases on the subject discussed, 248ss
distinction of Bengal lavr as to the right of to maintenance, 249
right of a widowed daughter-in-law. See Daughter-in-Law ; Maintenance
Right to Residence
of coparcener entitled to residence in the family house, 64, 73, 75, 245,
673, 751, 775, 776
not deprived of her right by a sale, 75, 245, 328, 673
nature of the right, 244/i
ought to reside with son, 247
entitled to residence as against adopted son, 1038
residence as a condition may be dispensed with occasionally, 247, 248, 251
as in case of ill-treatment, 247, 251
not compellable to reside, 251
widow's leaving her husband's family revolting to Brahmanical morality,
396
Position under the Law of Inheritance
heritable rights of a derived from a moral unity with her husband, 84
and her participation in husband's sacrifices, 397
regarded as taking by survivorship? 1020
amongst the lower classes her right depends on custom, 403 ^
postponed to mother by some caste customs in Gujarat, 372, 383
and amongst Khojas, 152
takes husband's estate by inheritance, 88
not as a trustee, 88, 298
fully represents the inheritance, 297, 371
widow's estate discussed, 297, 304
compared with that under Teutonic laws, 303fc
under decisions anomalous, 425
accumulations remain her absolute property though invested in
land, 298, 299
See Accumulations ; Stridhana
not a tenant for life, 297
in what sense has a life estate, 298
may exercise right of pre-emption, 298Z
must protect the estate as well as represent it, 89i?, 306
must make good her transactions out of her property, 307
INDEX. 1269
WIDOW— continued.
ornaments of not partible, 675p
See Ornaments
succeeding to her husband's share of a Mahal is entitled to a partition of
her share, 381 g
Inheritance in Joint Family
cannot claim joint property against surviving members, 64
has no estate in joint family property, 64, 328, 329, 334, 335, 384, 430, 766
of a joint cousin succeeds in preference to distant separated relations, 455
of the last survivor of coparceners inherits, 328, 379ss, 415
as last survivor of a branch takes estate as separate property, 428
of a collateral does not take absolutely? 455
Inheritance in Divided Family
takes husband's property in a divided family, 260, 384
of separated coparcener takes his share, 606x
succeeds to her son's property on the same terms as to her husband's, 138
preferred to daughter-in-law, 476
takes in preference to a remote heir, 119h
of a predeceased son inherits after the paternal grandmother according to
Balambhatta, 119
she is postoned to a brother, 427
of the paternal uncle takes as a gotraja sapinda, 121, 453
of last of a collateral line takes her husband's place, 119/i, 455t)
postponed in N. W. Provinces to aunt's sons? 454
of sapinda postponed to sapinda of same propinquity as her husband, 445
of descendants and collaterals inherit immediately after their husbands
(in the absence of a male of the same branch?), 122
of brother's son preferred to another brother's great-grandson, 1225
of a Sudra postponed to illegitimate son, 80
and to daughter and daughter's son, ib.
succeeds to a fellow- widow, 490
two or more s, nature of their succession, 603
two or more s may divide, though authorized to adopt, 1068
inherit equally, 83
may divided the estate according to Vyav. May., Viram., and
Mit., 83, 95
this doctrine recognized by Courts in Bombay. 95
bound to pay husband's debts, 94
can be sued only by the nearest reversioner, 90
may be sued by remoter reversioners for sufi&cient cause, ib.
may relinquish her right in favour of second * ' reversioners ' ' with the
consent of the first? 89, 92
reversioners cannot obtain a declaration of right during life-time of
the , 89
competition between and holder of a certificate of administration, 371
Power of Disposal and Relinquishment
what estate takes by inheritance, 91
as to immoveables, ib.
moveables, ib.
her estate in a gift or bequest from her husband similar, 304
1270 INDEX.
WIDOW— continued.
unless expressly enlarged, 297c, 709, 983, 984
restrictions are inseparable from widow's estate, 94, 7146
widow's powers not enlarged by absence of " reversioners," 94
growth of restrictions traced, 291
only two texts bear on her power over inheritance, 290
may give away property inherited from husband (Sastri), 291y
except for improper purposes, ih.
or immoveables, 291y, 294, 296, 301
widow's power of disposal absolute by custom in absence of male
kindred, 714b
See Custom
cannot bequeath inheritance? 294, 455
widow's right over money given for maintenance absolute, 295
may dispose of her 's estate, 93
may dispose of immoveables bought with her moveables, 307
See Accumulations
may alien a vritti for necessary sustenance, 407
cannot dispose of immoveables without great necessity, 374
cannot dispose of immoveables by mere gift, 93, 297c
may sell or incumber husband's estate for some purposes, 91, 92, 941,
306, 375 \
as to pay husband's debts, 94, 375
but not beyond her life-time without a special justification, 93, 291ss,
301, 375, 709
mere recital in the deed of sale of the object not sufficient proof of it, 94
concurrence necessary of relations interested, ih.
as manager cannot alienate without necessity, 349, 570
See Adoption VII., VIII.
cannot transfer family jewels as her separate property, 295
her complete ownership in moveables, 296, 298, 709
subject to husband's debts, 298
purcha8.er in good faith from protected, 93
duty of the creditor of , 94d
fraud on expectant heirs defeated, 306
See Gift; Stridhana; Wife; Will
Loss and Destruction of her Right
adultery bars the succession of a , 83, 553
right to maintenance forfeited by her unchastity, 555
even an allowance assigned to for maintenance is resumable in case
of her unchastity, ih.
See Forfeiture; Unchastity
Succession to Widow
of the nearest male sapinda of a predeceased husband is an heiress of a
deceased , 96, 122s
after 's death estate not liable for her debts, 94
See Daughter; Female; Sapinda; Son; Stridhana; Succession
Partition
cannot claim a division in Bombay, 342, 627, 766
but may in Bengal, 629
INDEX. 1271
WIDOW— continued .
is entitled to a share on partition among her sons, 338
widow's share on partition not to be defeated, 616g
right over share in partition absolute, 292, 295, 305r
See Female; Mother; Partition; Stridhana
Under the Law of Adoption
position of until adoption, 349, 372
widow's right and duties as to adoption. See Adoption passim
must adopt a boy designated by her husband, 81dt
in Bombay adopts without express power, but cannot be compelled, 372,814
the elder of two widows has a preferential right of adoption, 873
gift made by before adoption set aside, 349
but alienation for value upheld, 350
settlement on with concurrence of adopted son upheld, 1078
provision for in cases of adoption, 97Sss
woman's right to maintenance secured in awarding property to adopted
son, 1038
of adopted son predeceased entitled to maintenance, 1033
of son cannot be divested of her estate by adoption by a mother, 92, 887
cannot continue suit for adult adopted son against his will, 1081
Remarriage
remarrying is deprived of inheritance from her first husband, 93, 406, 553
but forfeits only the right actually inherited, not her right of inheritance
to her son then living, 102
remarried can now inherit to her second husband, 82, 391, 402
entitled to maintenance, 342 ^
contracting, remains liable after remarriage, 85r, 392
WIDOW OF COUSIN
preferred to widow of cousin's son, 454
WIDOW OF GRANDSON
is excluded by daughter's son, 419
but preferred to son's daughter, 119h
WIDOW OF NEPHEW
preferred to brother's great-grandson, 1225
WIDOW OF PATERNAL UNCLE, 452
WIDOW OF UNCLE, 454
excluded by sister, 436
WIDOWER, 842
WIFE
capture of . See Capture; Marriage
purchase of disapproved, 358
See Bride-Price, 263
purchase of still prevails amongst the lower castes, 399
1272 INDEX.
WIFE— continued.
amongst them she is regarded as property, 397, 403©
purchase or hiring of another man's formerly allowed, 798o
completely passes into her husband's family by marriage, 85
shares the benefit of husband's sacred fire, 87
first married takes precedence over others, 82a;
of different caste once allowed (Manu. II. 238 ; III. 12)
now disapproved except by special custom, 77n, 403t
importance of the , 84
of the patni, 87
position of pat and lagna , 39l5S
may be discarded amongst the lower castes, 368, 399 — 401
repudiation rare in practice, 401
allowed only in case of an outcaste, 358, 556to
marriage of a second no ground for desertion, 401
become a widow may perform Kriya and Sraddhas in default of a son, 789g
exequal ceremonies of performed by her husband's family, 87
her duty to live with husband not enforced where dangerous, 85p
in some castes may desert her husband with sanction of caste, 400
this disallowed by the Bombay High Court, 401
deserting husband without sufficient cause not entitled to separate main-
tenance, 402, 555, 556
person harbouring run-away liable to suit by husband, 401
is subject to her husband's control even as to her Stridhana, 86, 307
simple disobedience does not disable the from inheriting, 405
general incapacity of as to contracts, 246, 247
exception of contracts jointly with husband, 85p, 391
wife's authority as to household expenses, 865
annulled by adultery, ih.
property becomes her husband's, 246
as ex. gr. earnings by service, 278
contract with husband void, 246t«
separate property. See Stridhana, 85p
rights of the in her husband's property, 87, 88, 372
wife's right and husband's not mutual, 86
is a subordinate co-owner with husband, 372
wife's interest in husband's property distinguished from son's, 1030
entitled to a provision, 193, 254, 255, 372
though put away, 840/
from whom entitled to support, 227
of a disqualified person entitled to maintenance on partition, 690
claim of to support not extinguished by allotment to her of a share,
723
cannot be deprived of maintenance by husband's alienation, 372
wife's right to maintenance not subject to disposal or release, 254
but may be defined, ib.
See Maintenance
under gift from husband takes moveables absolutely, immoveables for life,
293, 294, 295, 297c
but a heritable right if expressly given, 297c, 710/, 984
INDEX. 1273
WIFE— continued.
gift in case of two wives, 297, 297a
inherits to her separated husband, 385
See Widow
what can inherit, 81, 87, 250, 398
wives of ancestors to the seventh degree succeed to their descendants, 118
for unauthorized acts liable in Stridhana, 86
and when needlessly living apart, 85r
but not in person, 86.
may eject husband from her separated property, 287a;
See Adhivedanika
lands purchased out of separate funds saleable by , 307
and devisable, ib.
wife's succession to co-wife, 545
See Adoption passim; Bride; Female; Gift; Inheritance;
Maintenance; Partition; Sapinda; Will; Woman
WIFE'S BEOTHER. See Adoption IV., 921
WIFE'S SISTER'S SON. See Adoption IV., 919
WILL—
History and Development
origin of the law of s, 181
recognition of s, 618a;
definition of (in Mofussil) independent of Act X. of 1865, 220
absence of s under Hindu law, 209ss
wills disapproved by native judicial officers, 618a;
and by the castes when the testator has issue, 621a
allowance of s a development of principles of the Hindu law, 181, 182
unlimited opposed to Brahmanic family system, 618a;
comparison between the Hindu and English laws of s, 182, 620
first intention of Roman s, 210
comparison of the Roman, Athenian and English laws, 210
extent of power limited by the Hindu law of gifts, 618
See Below
as to property at testator's disposal operates in analogy to gift, 179, 181,
182
bequest by husband to wife treated as a gift, 297c, 710/, 984
See Bequest ; Wife
speaks at the death of testator, 180
woman's testamentary power equal to that of alienation, 294(/, 710/
See Female; Stridhana
by a widow in Bengal, 184
daughter's testamentary power, 618
Indian statutes as to s discussed, 219
effects of Act XXI. of 1870 and V. of 1881 on s, 219, 220, 618, 618a;
executors excluded by survivorship, 215, 220
Forms
form of a according to Hindu law, 217, 218, 618a;
nuncupative , 618, 740
1274 INDEX.
WILIj — continued.
attestation of under Hindu law intended to be assent to the trans-
action, 218
Extent of Operation
power of bequest limited by power of alienation, 220
does not go so far, 1029/
subject to rights of maintenance, 215, 220
wills valid which provide for maintenance of family, 695
uncertain void, 618
application of Indian Succession Act to s, 618, 620
control by of property bequeathed limited, 179, 181, 223
with a condition against alienation operates, but the condition is void, 188
wills can only confer estates and interests recognized by law, 179, 183,
188, 220
of ancestral property disallowed, 618
cannot be made of an undivided share, 217p
of self- acquired property now recognized, 181
fails in favour of persons not in existence at testator's death, 182
or of persons not ascertainable at testator's death, 620, 1081
or if the testator's intention cannot be ascertained, 224
effect to be given to a if reasonably possible, 183, 223
effect of a on the mutual relations of persons taking under it, 193,
194, 221
bequest for specific charity maintained, 224
cy prks doctrine admitted, 224k, 224
private perpetuity disallowed, 188, 224, 618
even under colour of religious endowment, 618
a charitable perpetuity may be created by in the Mofussil, 221
but not it seems in Presidency towns? ih.
bequest may be made to a boy designated for adoption, 814
to two simultaneously adopted held void, 1072
adoption by not allowed, 995
disinheritance of a son by not feasible under the Mit. law, 984ri,
1032a
even of posthumous son, 1040
principle applied to adopted son, 978, 1040
disinheriting a widow disallowed by the Sastris, 1021s
partly disinheritng daughter approved by Sastri, 410
so as to one devising part should there be no son, 595, 978
See Coparcener ; Family ; Father ; Illegal ; Perpetuity
Construction
interpretation of Hindu s, 183, 184, 222, 223
governed by Hindu law, 222, 618
Tagore case, 219
English words not to be construed by vernacular equivalents, 223d
Proof
custom governs mode of proof of , 218
Evidence of
proof of instrument by single witness by assent, ih.
See Evidence
INDEX. 1275
WILL — continued.
validity of whether adjudiacable on application for certificate of
administration, 1080, 1081
probate needless in Mofussil, 221, 619
powers of the different courts, 619
opposition to grant of probate to adopted son not competent to creditors
of next heir, 1081
See Adoption III., 861; VI., 978, 996; VII., 1020; Female;
Interpretation ; Maintenance
WILL TO EFFECT SEPARATION
when expressed, 630
when implied, 636
WITNESSES
testimony of proves partition, 776
See Assent ; Attestation ; Evidence
WOMAN
never independent, 2&9ss
should perform sacrifices vicariously, 824
gradual elevation to the position of, 396ss
in Panjab does not transmit right of succession to village lands, 406
excluded from inheritance to land under Salic and Burgundian laws, 82to
property acquired by a married usualy her husband's, 86
by partition, gains full ownership according to Colebrooke, 295
and according to Mit. by inheritance, 316
contracts made by a jointly with her husband bind her Stridhana,
85r, 391
contracting as a widow remains liable after remarriage, 85r
her ownership of Stridhana subject to qualifications, 86
adoption of under Roman law, 833/i
See Female ; Ornaments ; Stridhana ; Widow ; Wife, &c.
WOMAN'S PROPERTY. See Female; Stridhana; Widow; Wife, &c.
WORKS
Hindu law , 9—13, 51—64, 781ss, 949
their relative position, 13 — 54
WORSHIP
place of not divisible, 743
division of place of by turns of occupation, ib.
division of right to , 716, 716wi
worshipper at a temple, his position, 521
WUTTUN. See Vatan
YAJAMANA. See Priest, 658
YAJAMANA VRITTI, 331, 388
376013
1276 INDEX.
YAJNAVALKYA
Institutes of , 15, 16, 38, 43
diflficulty of understanding , 40
See Inheritance, 262
translations of Bk. II. v. 47, 50, 175. 1087, 1089
YAMA, 35
YARDI VATAN. See Vatan
YASKA,
author of the Nirukta, 35, 36
YATI
heirs to a , 133, 533
See Sannyasi, 56, 133
YAUTAKA, 486
See Stridhana
YELL AM A, 494©
YOGI. See Caste, 727
ZAMINDAEI
once aliened or divided is freed from special rule of descent, 683«
income of chargeable with debts, 161
held not attachable after Zamindar's death, ib.
inheritance to resembles that to a principality, 679
governed by family custom, ih.
statement of succession to extensively construed, 682
inherited through mother not self -acquired property, 668
See Custom ; Inam ; Principality ; Raj
K .m 1919 SMC
West, Raymond.
A digest of the Hindu law of
inheritance, partition, and
nth ed. /
\
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